1 Wednesday, 6 December 2006

2 [Appeal Proceedings]

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 8.02 a.m.

6 JUDGE POCAR: Good morning. May I ask the registrar to call the

7 case, please.

8 THE REGISTRAR: Thank you. Good morning, Your Honours. This is

9 Case Number IT-02-60-A, the Prosecutor versus Vidoje Blagojevic and Dragan

10 Jokic.

11 JUDGE POCAR: I thank you.

12 Can the -- Mr. Blagojevic and Mr. Jokic follow the proceedings in

13 a language they understand? Is everything okay with the ...

14 THE APPELLANT BLAGOJEVIC: [Interpretation] Yes, yes, Your Honour.

15 THE APPELLANT JOKIC: [Interpretation] Yes, I can, Your Honour. I

16 understand you.

17 JUDGE POCAR: Now, we resume our hearing, and I will briefly

18 summarise how we proceed today. First, counsel for Jokic will have time

19 to reply to the Prosecution's response for 20 minutes. Then counsel for

20 the Prosecution will present its appeal for one hour, ten minutes. Later

21 the response of -- will follow from Blagojevic and then for Jokic. And

22 then we'll have the reply.

23 At the end, both Mr. Blagojevic and Mr. Jokic, if they so wish,

24 can make a personal statement for a maximum of ten minutes each.

25 So now we will invite counsel for Jokic to present his reply to

1 the Prosecution.

2 You have the floor, Mr. Murphy.

3 MR. MURPHY: Thank you, Mr. President. Good morning. Good

4 morning, Your Honours, counsel.

5 I will be very brief in replying to Ms. Issa's very able

6 submissions on behalf of the Prosecution. It appeared, Your Honour, that

7 there is no essential difference in principle between the Prosecution and

8 the Defence as far as the legal issues are concerned that I addressed

9 yesterday. I think we are in broad agreement as to the definition of

10 aiding and abetting. I take it that the Prosecution still maintains, as

11 they said in their brief, that there is no separate requirement of

12 specifically directed. We maintain that the Trial Chamber was correct in

13 holding that the acts of the accused must be specifically directed, and we

14 believe, as we set out in our reply and indeed in our appellant brief,

15 that the previous decisions of the Appeals Chamber amply support that

16 position. And the Prosecution has really -- advanced no ground for the

17 Appeals Chamber to differ from those previous decisions in this case.

18 We also believe, Your Honour, that there is no essential

19 difference in principle as regards the necessity for a prior agreement in

20 cases where the acts are ex post facto. The Prosecution had suggested in

21 its brief that perhaps there were other ways, other than a prior

22 agreement, in which liability could be sustained; but the only practical

23 suggestion that they made in that regard was what happens perhaps if the

24 accused makes an offer of help. And in this context, we submit that

25 there's really no difference between that situation and the situation

1 where there is an agreement. And we remind the Trial Chamber in any event

2 that there was no evidence in the record to support either an agreement or

3 a prior offer of help by Mr. Jokic.

4 I also understand, Your Honour, that the Prosecution does not

5 differ from us on legal grounds with regard to our submissions about the

6 burden of proof in relation to the fifth ground of appeal, certainly

7 insofar as the rule is, of course, that the Prosecution bears the burden

8 of proving the actus reus of the offence beyond all reasonable doubt. And

9 so, I understood the Prosecution's submissions to be based essentially on

10 factual grounds.

11 And once again, as they did in their brief, the Prosecution sought

12 to emphasise what they refer to as the overall murder operation. They

13 painted a picture for Your Honours again of the horrific circumstances of

14 Srebrenica from the time when the safe area, the protected area, was

15 overrun through to the execution of the victims. And they do that in

16 order to seek to persuade the Appeals Chamber that Mr. Jokic's involvement

17 was in fact greater than the Trial Chamber found it to be.

18 And so, Your Honour, we come back once again, as we must, to

19 consider what the Trial Chamber actually found. And I respectfully remind

20 the Appeals Chamber once again that in paragraph 770 of the judgement, the

21 Trial Chamber found unequivocally that Mr. Jokic did not play a major role

22 in this case. And despite the Prosecution's rhetoric, both in their brief

23 and in Ms. Issa's submissions yesterday, that remains the starting point

24 from which the Appeals Chamber has to begin to consider the issues.

25 There was a murder operation, but Mr. Jokic was not convicted of a

1 murder operation; he was convicting of aiding and abetting with respect to

2 three particular sites. He was not convicted of being part of a joint

3 criminal enterprise, whether that was based upon his role as duty officer

4 or his role within the Engineering Company. And I remind the trial -- the

5 Appeals Chamber, because this perhaps may be overlooked, was not referred

6 to explicitly yesterday, of the Trial Chamber's findings that as duty

7 officer, Mr. Jokic was not in a position to give orders. He had no

8 authority to order other officers, whether it was Milosevic or Lazarevic

9 or anyone else, to do anything. And the Trial Chamber explicitly found

10 that he was not responsible for the wider joint criminal enterprise. And

11 I have to keep coming back to what, with all respect, is the obvious

12 because the Prosecution seeks to make this, in a way, the pillar of their

13 submissions.

14 And I remind the Appeals Chamber that the Prosecution has not

15 sought to appeal against the Trial Chamber's finding that Mr. Jokic was

16 not guilty of a joint criminal enterprise. Such a ground was initially

17 contained in the notice of appeal, but it was explicitly abandoned and it

18 does not form any part of the case that Your Honours are hearing today.

19 Ms. Issa also submitted that the burials were, in her words, an

20 essential component of the crimes. Now, Your Honours, the burial may have

21 been a constituent part of the joint criminal enterprise. We don't know

22 what was in the mind of those who were part of that joint criminal

23 enterprise. We don't know to what extent the issue of burial played a

24 part in the plans that were hatched at the Fontana Hotel and elsewhere

25 before Mr. Jokic had any involvement. That's not part of the case against

1 Mr. Jokic because burial is not, in fact, a legal component of the crimes

2 which he was convicted. The Prosecution may argue that factually it was a

3 component of the joint criminal enterprise, but I remind Your Honours

4 again that that is not part of the conviction of Mr. Jokic.

5 Ms. Issa drew Your Honours' attention to the issue of reburial and

6 the observations of the Trial Chamber at paragraph 730 of the judgement,

7 and she pointed out the Trial Chamber's finding that the reburials were

8 the -- were not the subject of a prior agreement. And I think her intent

9 was to argue that the issue of prior agreement was really more appropriate

10 to the issue of reburial than it was to the initial burial of the bodies.

11 Now, if Your Honours look at paragraph 730 of the judgement, you

12 will see that that passage in fact refers to a finding with respect to

13 Colonel Blagojevic, not to Jokic at all, and it is, in fact, indeed

14 talking about the reburials. Nonetheless, we -- we submit, Your Honour,

15 that the issue of prior agreement is a legal issue that applies over the

16 whole spectrum of the case. It's not limited to the issue of reburial; it

17 is limited -- it is indeed something that applies to any example of ex

18 post facto assistance. And I remind the Appeals Chamber again that it

19 does not appear to be a matter of dispute that a prior -- that certainly

20 some form of prior agreement or arrangement or more evidence is required

21 in the case of ex post facto assistance.

22 The Prosecution also sought to persuade the Trial Chamber -- the

23 Appeals Chamber that this was not a case of ex post facto assistance, and

24 they offered to Your Honours a rather complicated chart, showing various

25 activities that they ascribe to Mr. Jokic over a period of four days. The

1 interesting thing about that chart, if you look at it in detail, is that,

2 unlike the simpler one that we offered, it does not refer to the crucial

3 issue of time, the times at which different events occurred. And if Your

4 Honours go back to the paragraphs of the judgement that we referred to

5 yesterday, and if it will be of assistance, I will be happy to provide a

6 copy of our visual chart for the Appeals Chamber. I haven't printed it

7 out, but I would be certainly glad to give one to the Legal Officer so

8 that Your Honours will have it. If Your Honours will refer to the

9 paragraphs of the judgement that are referred to there, you will see very

10 clearly that in the case of the Pilica school and Kozluk, any acts of

11 assistance which Mr. Jokic may have rendered were clearly ex post facto

12 with respect to the commission of the offences. And I bear in mind the

13 distinction that His Honour Judge Shahabuddeen made to me in a question

14 yesterday between murder and extermination. But I say again, Your

15 Honours, that as far as the legal definition of the crimes is concerned -

16 and that's the crucial thing - the crimes were complete when Mr. Jokic, on

17 the Prosecution's own case, rendered whatever acts of assistance he did.

18 And, Your Honour, it comes in the end to this, that taking the

19 case for the Prosecution at its highest and taking the findings of the

20 Trial Chamber as they are, rather than as the Prosecution would wish them

21 to be, the case against Mr. Jokic was essentially based upon an allegation

22 that he was an accessory after the fact, a separate offence in both common

23 law and civil law jurisdictions and one that, for whatever reason, is not

24 included in Article 7(1) of the Statute of this Tribunal. And it follows

25 from that, in our submission, that Mr. Jokic should be acquitted. Even if

1 Your Honours are against me on the generality of that proposition,

2 adopting the distinction suggested to me by Judge Shahabuddeen yesterday,

3 I would submit that certainly in the case of the murder conviction, there

4 can be no doubt that that conviction cannot stand. And I invite Your

5 Honours to consider that as a separate issue.

6 Your Honours, if there are any further questions from the Bench

7 about any aspects of my submissions, I would be very happy, of course, to

8 answer them now.

9 JUDGE POCAR: Thank you, Mr. Murphy.

10 Judge Meron.

11 JUDGE MERON: Thank you, Mr. Murphy, for your very clear argument.

12 You will recall that both today and yesterday you referred to the burials,

13 to the question of burials. And yesterday you presented the question of

14 burials as something which was necessary to avoid worse consequences,

15 which I understood to be the public health, based on the public health

16 rationale. Now, is this not actually a claim of necessity which we should

17 regard as affirmative defence on your part and where the burden of proof

18 would be on the Defence?

19 MR. MURPHY: Your Honour, that would be a way to look at it if it

20 were not a case of ex post facto assistance. In other words, I understand

21 that the defence of necessity is more related to a case of perpetration

22 where the accused says, Well, I did commit the offence, I did commit the

23 crime, but there was a situation in which it was necessary to do so. And,

24 as Your Honour rightly says, in that situation, of course, the Defence

25 would have the burden of proving that affirmative defence.

1 Your Honour, I present this case in a somewhat different way, and

2 again, I respectfully remind the Appeals Chamber that the -- that I do

3 this on a hypothetical basis to invite the Appeals Chamber's ruling as a

4 matter of principle, not to suggest that this was actually a matter of

5 Mr. Jokic's individual motivation. But assuming the facts to be as they

6 were, the Prosecution had the burden of proof to show that what Mr. Jokic

7 did amounted to an act of substantial assistance. It was an act that was

8 still ex post facto, but I think the Appeals Chamber could regard it in

9 the -- in this light, that if what Mr. Jokic did was not in fact an act of

10 assistance but an act which anyone in his position had to do for other

11 reasons, then it should not be regarded as a criminal act. The

12 Prosecution has not proved the actus reus. Reus, of course, as Your

13 Honour knows, meaning a guilty act. And in a way it also raises a

14 question of principle. As a matter of policy, do Your Honours wish to

15 make a ruling that will have the effect in future cases that a person --

16 let's assume a person with absolutely no association to the main crime at

17 all, let's assume hypothetically a member of the public who happens to

18 have access to some equipment had come along, having no responsibility for

19 the murders whatsoever, and said, I will take responsibility for burying

20 the bodies.

21 Now, the Prosecution then could say, Well, that was an act which

22 assisted the perpetrators, which is what they say in Mr. Jokic's case,

23 which in a sense is true. And then the Prosecution would say, as they did

24 yesterday, It doesn't matter what his motivation is, it doesn't matter

25 that the act was lawful, per se, it was an act that assisted the

1 perpetrators. And I would submit, Your Honours, that in that case, as a

2 matter of principle, the Court should say, We do not wish to criminalise

3 that act. There must be a line to be drawn somewhere because, if we don't

4 draw it, the effect of our ruling will be that the already terrible

5 consequences of such an act will be made even worse because that member of

6 the public would be fearful of prosecution if he were to intervene to try

7 to make the situation better. And I invite Your Honours to look at it

8 also in that light.

9 JUDGE MERON: Thank you.

10 JUDGE POCAR: Thank you.

11 Judge Shahabuddeen.

12 JUDGE SHAHABUDDEEN: [Microphone not activated]

13 THE INTERPRETER: Microphone, please.

14 JUDGE SHAHABUDDEEN: [Microphone not activated]

15 I think you said that the Trial Chamber unequivocally found that

16 Mr. Jokic did not play a major role in this case, and I believe you

17 referred to paragraph 770. Now, is that the paragraph you intended to

18 refer to?

19 MR. MURPHY: Your Honour is quite right. I misspoke. It's

20 paragraph 836.

21 JUDGE SHAHABUDDEEN: 836.

22 MR. MURPHY: Your Honour is absolutely right. It was the

23 sentencing paragraph in which the Trial Chamber made that observation.

24 I'm very grateful to Your Honour for pointing that out. Thank you.

25 JUDGE POCAR: Well, I believe if there are no other questions we

1 can conclude the appeal of Mr. Jokic and move on to the appeal of the

2 Prosecution. We'll give the floor to the Prosecution to present their

3 appeal.

4 You have the floor, Mr. Farrell.

5 MR. FARRELL: Thank you, Your Honour.

6 Your Honours, the Prosecution appeal, as you're aware, consists in

7 the appeal brief of -- and the notice of seven grounds of appeal. This

8 morning the Prosecution will address five of those grounds in oral

9 argument. It will not address in oral argument ground five -- I'm sorry,

10 the -- it's subsection 5 of the appeal brief, it's the ground of appeal

11 against Mr. Jokic as to his acquittal for the killings at Petkovci school

12 and Petkovci dam. We maintain our submissions in our brief.

13 I also will not be making any submissions this morning on the

14 seventh section of the appeal brief, which relates to the application of

15 Rule 92 bis. I've informed Mr. Murphy this morning that we won't be

16 making any arguments with respect to the Petkovci school and dam ground

17 against Mr. Jokic, but we'll simply rely on our brief. But that we will

18 be making submissions as to sentence both to -- in relation to

19 Mr. Blagojevic and in relation to Mr. Jokic.

20 The three grounds that I will be making submissions on this

21 morning for the Prosecution will be the first ground of appeal, which is

22 the mass killings; the second ground of appeal, which is the intent to

23 commit forcible transfer; and the third ground of appeal, the alleged

24 errors with respect to Article 7(3) of the Statute. Then my co-counsel

25 Mr. Costi will be making submissions at the end of the Prosecution's 70

1 minutes on sentence.

2 If I may now proceed with respect to ground -- the first ground of

3 appeal. And though the grounds of appeal in the brief start with the mass

4 killings, which is chronologically after the forcible transfer, I intend

5 to follow the structure in the brief, which is to start with the ground of

6 appeal with respect to the mass killings. And the issue in that ground of

7 appeal is whether or not the Trial Chamber erred in finding that

8 Mr. Blagojevic did not have the requisite mens rea of knowledge for aiding

9 and abetting the mass killings.

10 As is evident from the Prosecution's brief, the position taken is

11 that the events of Mr. Blagojevic's involvement over the period of the

12 11th to the 14th of July, 1995, point to one inescapable conclusion, that

13 the appellant had knowledge about what was to happen to the Bosnian Muslim

14 men when members of the Bratunac Brigade transported these men to

15 detention facilities around Zvornik and where they were eventually killed.

16 As you know, Colonel Blagojevic was the commander in the zone of

17 responsibility where thousands of Bosnian men are captured and detained.

18 He's found to have knowledge of involvement of the search, of the capture,

19 of the detention, of the abuse, and of the killings, and that throughout

20 the period, he received regular reports, apprised himself of them, and

21 that the lines of communication were working properly. The Trial Chamber

22 concluded, despite this, that they had a reasonable doubt as to his

23 knowledge of the mass killings.

24 Though it's evident that the Appeals Chamber, in relation to

25 factual findings, should be hesitant to interfere with factual findings at

1 the trial level, this court in the Kordic Appeals Chamber indicated that

2 when it comes to a legal error with respect to the application of a

3 factual mistake, that if the legal error has been established, this Court

4 has an obligation then to review the trial record in totality and make a

5 determination itself whether or not it would be reasonable to conclude

6 that Mr. Blagojevic or whether or not on the record the accused or

7 appellant had the requisite mens rea. The Prosecution has raised a ground

8 of appeal in its -- sorry, an error of law in this ground of appeal. And

9 if successful, it would require the Appeals Chamber, in our submission, to

10 review the record, which would result in no deference to the findings by

11 the Trial Chamber and the standard is not one of whether or not the Trial

12 Chamber's findings were reasonable.

13 That error, which I'll come back to at the end of my submissions,

14 is that the Trial Chamber did not apply the correct standard for the mens

15 rea of aiding and abetting. In this regard, though I won't take you to

16 it, if you look at paragraph 727 of the Trial Chamber's judgement - and

17 once again I won't take you to it - but also reference to 729, 742, 743,

18 and 744. What you'll find, in the Prosecution's submission, is that the

19 Trial Chamber is looking for actual knowledge on the part of

20 Mr. Blagojevic. They're looking to see whether in fact he did know in the

21 sense of actual knowledge. In the Prosecution's submission, this was an

22 error. The standard is set out in the Blaskic Appeals Chamber judgement

23 and, subsequently, in this Chamber's decision in the Simic case is that

24 for the mens rea for aiding and abetting, in terms of the knowledge of the

25 commission of the crime, is that the accused has to be aware that the

1 crime - in this case the killing - was one of a number of crimes that

2 would probably be committed. He doesn't have to know the specific crime;

3 he has to turn his mind to the crime and be aware of its probability,

4 accept those results, and on that basis assist.

5 The Trial Chamber didn't apply this standard. Though specifically

6 referring to Blaskic in paragraph 727, the Trial Chamber refers to

7 Blaskic, the Appeals Chamber judgement, and makes references to paragraphs

8 45, 47, and 48 of the Blaskic Appeals Chamber decision. It makes no

9 reference to paragraph 50 of the Blaskic Appeals Chamber decision, which

10 specifically sets out the awareness of a probability standard in relation

11 to the commission of a crime and the acceptance of that probability as a

12 manner to conclude that the -- or that an accused would have the mental

13 state for aiding and abetting.

14 The Trial Chamber found all other elements were met. The only

15 thing that was missing with respect to the murders was his mens rea.

16 The second error that's raised and which I'll touch on briefly is

17 simply an error of fact, and of course in that case, the Prosecution must

18 prove that no reasonable trier of fact could have reached the conclusion,

19 that is that even if there was no error with respect to the application of

20 the correct mental standard, that on the facts as they are and on the

21 evidence, no reasonable trier of fact could have concluded that

22 Mr. Blagojevic did not have knowledge of the killings when the acts of his

23 subordinates assisted.

24 I'd like to deal with the error of fact first, strict error of

25 fact. And the position is that the evidence conclusively points in only

1 one direction and that's knowledge, actual knowledge. I ask that you

2 please recall that this is one overall operation. There's not two

3 separate operations here. There's no troops that are working alone or in

4 isolation from each other. A number of units operated within the zone of

5 responsibility of the Bratunac Brigade, commanders met at the Bratunac

6 Brigade headquarters, tasks were given, and the attack, the forcible

7 transfer of the women and children, searching the terrain, the guarding of

8 prisoners, the transporting of men to Zvornik for their execution, they

9 were all one orchestrated operation.

10 In relation to this one operation, what was the Bratunac Brigade

11 involved in? With the exception of the actual shooting during the

12 executions, the Bratunac Brigade was involved in every aspect right

13 through to the transfer and detention in Zvornik of those who were to be

14 killed. What had the Trial Chamber found that Blagojevic knew? The Trial

15 Chamber found that Blagojevic knew all aspects of the operation but one.

16 Blagojevic was informed of the blocking of convoys. He was informed of

17 the objective to eliminate the enclave. He commanded his troops during

18 the attack on Srebrenica and was informed in advance of the operation and

19 the units that were to be involved. He was apprised of the search

20 operations as one of the brigade commanders participating in that

21 operation. He was informed of the detention of the men captured in the

22 search operation. He was aware of the killings in Bratunac. He was aware

23 that the Bratunac Brigade were transporting the men to Zvornik. And he

24 was informed that the women and children were taken in a different

25 direction. He was informed of all of these activities because it was

1 necessary that he be kept informed as the commander.

2 Despite being informed of all these activities, the Trial Chamber

3 found it was unreasonable to conclude that Blagojevic would be informed of

4 why he was involved in the capture of men, why his men were transporting

5 them to Zvornik, and what the purpose was. We submit that the evidence is

6 overwhelming, that not only was he informed, but he would have to be

7 informed.

8 The Trial Chamber appears to have a doubt, at least in paragraph

9 742. One of the doubts they have or the basis of their doubt is that it

10 was reasonable to conclude that he saw these actions as a further step in

11 transporting the Bosnian Muslim population out of the Serb territory.

12 Well, with respect, the men are actually not being transported out of the

13 Bosnian -- out of the Serb-held territory; they're being transported

14 further into the Serb-held territory up into Zvornik. The women and

15 children are, but not the men. How the Trial Chamber came to this

16 conclusion that it was reasonable for Blagojevic to assume this is

17 unexplained. Blagojevic did not testify; that is his right, of course,

18 but there's no evidence as to the basis of his action. Nor did anyone

19 testify to any conversation with Blagojevic or knowledge they had of the

20 reasons why Blagojevic was involved and what he understood the operation

21 to be.

22 Further, if the goal of transporting the men out of the Serb-held

23 territory -- if the goal was to transport the men out of the Serb-held

24 territory, why were the men not transported with the women to Potocari?

25 Why did they have to bring in 70 -- 80 to 120 buses and detain them

1 overnight in Bratunac?

2 Let me take one of the findings by the Trial Chamber briefly to

3 try and deal with the findings about the Kravica warehouse. Now, I've

4 already submitted that based on the evidence and the findings of the

5 overall operation, Mr. Blagojevic would have known and did know.

6 Secondly, it's the Prosecution's position that he had knowledge of the

7 killings at Kravica warehouse. The Trial Chamber found that he did not.

8 But if he did have knowledge of the killings at Kravica warehouse, on July

9 13th, he would have known the purpose of the operation. Now, Kravica

10 warehouse is in his zone of responsibility; it's not in Zvornik. Kravica

11 warehouse is where a thousand men were killed. Kravica warehouse is 10

12 kilometres from his command post and is approximately 1 to 2 kilometres

13 from the command post of his 4th Battalion.

14 I'd just like to refer to one of the exhibits, which is a map.

15 It's P16.1. And I've just asked that it be brought up on e-court. If you

16 switch to the e-court button on your -- thank you. Obviously you've been

17 able to find it. Okay. Thank you, Your Honour.

18 Just to put in context the Kravica warehouse massacre. As you can

19 see on the map, there is the town of Srebrenica, then from Srebrenica to

20 Potocari is a total of 4 kilometres. From Potocari to Bratunac is around

21 3 kilometres. The town of Bratunac, a place where there's 80 to 120 buses

22 overnight is 2 square kilometres, the size of the town. From Bratunac to

23 Glogova, which is the burial site of the men from Kravica, is

24 approximately 5 kilometres. The distance from the burial site to the

25 massacre, that's Kravica on the map, is 5 kilometres as well. And the

1 distance from Sandici, that's the meadow where the men were captured and

2 where they were -- after capture, they were taken to Kravica for the

3 massacre. From Sandici to Kravica is 2 kilometres.

4 The Trial Chamber makes specific findings as a result of the order

5 of the Drina Corps, this order coming from obviously the Drina Corps

6 command, presumably Krstic, makes specific findings that as a result of an

7 order from the Drina Corps, the commanders are to be informed of the

8 events that take place in their zones of responsibility. And the Court

9 finds that as a result of that order, Mr. Blagojevic would have known that

10 there were a thousand men that were captured and detained in Sandici. The

11 Court also finds that he would have known that they were not only captured

12 but then were detained. Now, why they don't then make the conclusion that

13 if he has to be informed of this and if they make a finding of fact that

14 he is informed of their capture and detention, that he's not informed of

15 what they did with them.

16 Approximately 1.000 men are taken from Sandici to Kravica, either

17 by buses or marching those thousand men to Kravica warehouse. They're

18 placed in the warehouse, and the thousand men, over a period of time, are

19 executed. The killings take four hours. There's shooting, grenades,

20 machine-gun fire.

21 Now, while this is going on, on the night of the 13th and then on

22 the morning of the 14th - and if I could just step back - and then on the

23 morning of the 14th, there's, as I understand, some final killings and

24 then the burial operation starts for Kravica warehouse. The burial

25 operation takes two days. While this is going on in the morning -- well,

1 I'm not sure of the time, I apologise -- on the 14th, an order is issued

2 by Colonel Blagojevic. If I could just -- it's up on screen and if I

3 could just pull up the passage.

4 The order issued on the 14th said: "From its positions, the 4th

5 Infantry Battalion will control the area in front of it spreading from

6 Lupoglava spreading to Ravni Buljim and reaching for it as far as

7 Mratinsko Brdo and Sandici."

8 Now, I've pulled up an exhibit from the trial which shows the area

9 in more detail. As you can see in the middle-top of the exhibit, the line

10 in red going from right to left is the road coming from Bratunac. And as

11 you're aware, Kravica warehouse is 10 kilometres along that road from the

12 Bratunac Brigade headquarters. To the left of Kravica, there's Sandici,

13 and as I've indicated, it's somewhere between 1 to 2 -- it's approximately

14 2 kilometres from the meadow to Kravica warehouse.

15 Now, on the map you'll see that the location Kajici, K-a-j-i-c-i,

16 that's the forward command post of the 4th Battalion. Now, in the order

17 for the 14th, the forward command post is to search the terrain for

18 Bosnian Muslim men in front of it from Lupoglava, which you can see on the

19 bottom right-hand side, to Ravni Buljim, to Mratinsko Brdo, all the way up

20 to Sandici. The warehouse is in between the forward command post and

21 Sandici, the ultimate place where the brigade is to cover in their search.

22 And this is the main road upon which people are being brought and

23 captured.

24 It's not reasonable to assume that on the morning of the 14th, or

25 at least during the day on the 14th, Blagojevic is issuing an order to his

1 troops to search in the area for Bosnian Muslim men where there's been

2 fighting between the 28th Mountain Brigade of the Bosnian Muslim men and

3 the Serb forces and not inform them that when they hear shots, machine-gun

4 fire, or any other disturbances from around Kravica not to worry, this is

5 not fighting with the Bosnian Muslims. It's not reasonable to assume that

6 during an operation of this magnitude within the centre of his zone,

7 within 1 to 2 kilometres from his 4th Battalion command, that they

8 wouldn't know what is happening to those 1.000 men.

9 On top of that, the Trial Chamber found that Mr. Blagojevic

10 travelled on the Bratunac main road between the 13th and the 14th; this is

11 the road where the men are detained. They found that it took two days to

12 complete the burial. They found that the burial involved civilian

13 protection workers from Bratunac and two Bratunac Brigade members. They

14 found that there were several meetings held in Bratunac between the

15 civilian authorities, that's Deronjic, and Momir Nikolic of the Bratunac

16 Brigade to carry out the burial operation. And a witness testified that

17 by the morning of the 14th of July, the people in the town of Bratunac

18 already knew of it. How was it that the one person who must know to carry

19 out his functions is the one person that didn't know?

20 The explanation by the Trial Chamber that Blagojevic must have

21 thought they were going to be transported out of the territory makes no

22 sense, in my respectful submission. They were never transported out of

23 the territory. They were not transported to Bratunac to be detained.

24 They were killed 10 kilometres down the road from his command post in an

25 area that his troops are searching, when the Court finds that he is

1 informed of their capture and detention. These detainees he's informed of

2 their capture and detention because he's -- it's necessary and it's

3 pursuant to superior command's orders. But that he just didn't know what

4 happened to them after that.

5 Based on all the evidence, it's the Prosecution's submission that

6 he would have been aware of the fate of the Bosnian Muslim men. It's

7 unreasonable to conclude, that despite being informed of all the --

8 JUDGE POCAR: Sorry, Judge Meron.

9 JUDGE MERON: I believe that you have completed your argument on

10 this question of knowledge of mass killings.

11 MR. FARRELL: I am just coming to the end of it, Your Honour.

12 JUDGE MERON: I will wait until then because I would like to ask a

13 question.

14 MR. FARRELL: Thank you very much, Your Honour.

15 The submissions I've made -- and I'm finished with the exhibit on

16 the e-court. The submissions I've made relate to the error of fact, that

17 it was unreasonable, based on the overall operation and based on the

18 specific operation and the killing of a thousand men in his zone, to

19 conclude that he wasn't aware.

20 Lastly, even if this Chamber finds that it was not unreasonable

21 for the Trial Chamber to conclude that he didn't have actual knowledge, I

22 revert back to my earlier submission, which is that he -- if they applied

23 the law correctly, aware of the probability that the mass killings was one

24 of a number of crimes that would have been committed, he would have been

25 aware of that probability in light of all the evidence.

1 Those are my submissions in relation to the first ground of

2 appeal.

3 JUDGE POCAR: Perhaps Judge Meron, you may put your question now.

4 JUDGE MERON: Thank you, Mr. President.

5 JUDGE POCAR: And I will have an additional question later.

6 Judge Meron.

7 JUDGE MERON: Mr. Farrell, you are asking us to reverse the Trial

8 Chamber on findings of fact which were quite exhaustively discussed by the

9 Trial Chamber. In paragraph 498, the Trial Chamber concludes, "There is

10 some evidence to establish that Colonel Blagojevic learned about the mass

11 executions at the Kravica warehouse sometime after it occurred." I draw

12 your attention to the temporal element.

13 And then in paragraph 743, the Trial Chamber tells us: "Finally,

14 there is insufficient evidence to establish that Colonel Blagojevic knew

15 that the buses being escorted from Bratunac to Zvornik by members of the

16 Bratunac Brigade military police were taking the Bosnian Muslim men to

17 temporary detention centres in order to execute them."

18 So -- and this is a very important question. It appears that

19 according to the Trial Chamber, "Blagojevic lacks the knowledge of mass

20 killings. What does he know? He knows that at least until after his acts

21 are completed is that forcible transfers, separation of men from women,

22 and confinement of men under bad conditions are going on, and he possibly

23 knows also that a number of men have been killed at the school." On that

24 basis, I have some problem with the argument you are making.

25 MR. FARRELL: Thank you, Your Honour. There's no doubt that this

1 Court should be hesitant to interfere with factual findings. The Trial

2 Chamber went through, to some extent, the factual findings but maintain

3 the position, and I appreciate the obvious hesitancy of Your Honour to

4 interfere with those findings. But in light of the overwhelming evidence,

5 in my submission, that Blagojevic was involved in every aspect -- I'm

6 sorry, the Bratunac Brigade was involved in every aspect. Blagojevic was

7 informed of every aspect, and the one that it appears he didn't -- he

8 wasn't informed of was the result of the operation that he was carrying

9 out, which was the searching of the men.

10 In light of the fact that he was informed of every other aspect

11 and involved in every other aspect, it's unreasonable to assume that

12 without direct evidence, it's clear that's the Court's concern, without

13 direct evidence, you can't draw an inference from the facts. That's the

14 Prosecution's submission in a nutshell, though I appreciate your concern,

15 Your Honour.

16 JUDGE MERON: Thank you.

17 JUDGE POCAR: Thank you.

18 Judge Shahabuddeen.

19 JUDGE SHAHABUDDEEN: One question, Mr. Farrell. Would it be

20 correct to understand your submissions this way, that the women and

21 children were being taken out of Serb-held territory, but that the men

22 were being taken further into Serb-held territory?

23 MR. FARRELL: They were taken to Zvornik, which is within the

24 Serb-held territory; they were not taken out towards the Bosnian-held

25 territory. That's correct.

1 JUDGE SHAHABUDDEEN: And the men and the women?

2 MR. FARRELL: I'm sorry, the women were taken towards the

3 Bosnian-held territory, which was to the west, and the men were taken to

4 the north within the Bosnian Serb-held territory to Zvornik.

5 JUDGE SHAHABUDDEEN: One other point which has to do with the

6 question posed by Judge Meron. It seems to me that the Trial Chamber was

7 not denying absolutely that Mr. Blagojevic knew of the executions in

8 Kravica warehouse. What it was saying was, and I quote it: "It remains,"

9 this is from paragraph 742, the last sentence. "It remains possible that

10 Colonel Blagojevic did not learn of this mass execution until two, three

11 days after it happened." Does that throw a different colour on your

12 submissions?

13 MR. FARRELL: No, Your Honour. The colour still remains quite

14 clear.

15 JUDGE SHAHABUDDEEN: All right.

16 MR. FARRELL: In black and white. That it's not what he found out

17 afterwards, it's that he would have had to know and did know everything

18 during. Thank you, Your Honour.

19 JUDGE POCAR: Thank you, Judge Shahabuddeen, and Mr. Farrell.

20 Mr. Farrell, may I put to you another question to be clear, 100

21 per cent, about your position on the mens rea for aiding and abetting. Is

22 that your position that the standard of mens rea to be applied for aiding

23 and abetting should be consistent with other forms of liability under 7(1)

24 of the Statute, in particular ordering, instigating, and planning, which

25 require only awareness of a substantial likelihood that the crime will be

1 committed.

2 And the second question: In your appeal brief, you submit that at

3 a certain point, once you referred to the probability standard, and on

4 another paragraph - I think it's paragraph 62 - you speak of awareness of

5 substantial likelihood that the crime will be committed and knowledge or

6 awareness of substantial likelihood that the acts of the accused will

7 assist. Are you having a double substantial likelihood standard is what

8 you are maintaining, or when we come to the assistance de facto that the

9 acts will assist is just knowledge. Which is your position exactly?

10 MR. FARRELL: Thank you, Your Honour. That's not only an astute

11 question, it's a fair one in light of that paragraph which left it open.

12 So to answer your question, the first part of your question, the

13 Prosecution maintains that for a matter of consistency and also because of

14 the finding in Blaskic, that once you find the cognitive element of

15 awareness of the substantial likelihood of that level, then the volitional

16 element is to be regarded as having been met and that the standard should

17 be the same. So it's an awareness of the substantial likelihood.

18 With respect to the second aspect, there's two components to -- my

19 understanding, there's two components to the mens rea. There's the

20 awareness or knowledge of the crime, going to the crime, and there's

21 awareness or knowledge that your acts assist. And the finding in Blaskic

22 goes to the awareness of the probability in relation to the knowledge of

23 the crime. It doesn't deal with the second aspect, which, as you are

24 fully aware, Mr. President, from our brief, it doesn't deal with the

25 second aspect in our submission as set out in our brief is that if the

1 standard is accepted as awareness of a probability and the degree of risk

2 is substantial likelihood, that should go to the component parts of the

3 mens rea for aiding and abetting. So it should be awareness of a

4 substantial likelihood of the crime and awareness of the substantial

5 likelihood that your acts are assisting. And once you accept that, you

6 then have the mens rea -- accept and act upon it in the dolus eventualis

7 sense.

8 JUDGE POCAR: Judge Meron.

9 JUDGE MERON: Mr. Farrell, if I may return for a moment to the

10 question asked of you by my learned colleague Judge Shahabuddeen, who drew

11 your attention to the last sentence of paragraph 742.

12 MR. FARRELL: Yes, Your Honour.

13 JUDGE MERON: "It remains possible that Blagojevic did not learn

14 of this mass execution until two, three days after it had happened." This

15 I would read together with the first sentence of -- in fact, the only

16 sentence of paragraph 743, reading finally: "There is insufficient

17 evidence to establish that he knew," et cetera, et cetera.

18 Now, these senses or statements read to me as suggesting that

19 prior knowledge by Blagojevic was not established beyond reasonable doubt,

20 and do you agree that this should be read like that?

21 MR. FARRELL: Yes, Your Honour, I would -- I would agree with

22 that, yes.

23 JUDGE MERON: Thank you.

24 MR. FARRELL: Mr. President, did I answer your questions?

25 JUDGE POCAR: Yes, I believe you answered my question clearly. I

1 know your position now. Thank you for assisting.

2 MR. FARRELL: Thank you.

3 JUDGE POCAR: You may go on on your submissions, Mr. Farrell.

4 MR. FARRELL: Thank you.

5 The two other grounds I wanted to touch on before handing the

6 floor over to Mr. Costi -- excuse me for just one minute.

7 [Prosecution counsel confer]

8 MR. FARRELL: The -- I apologise for the interruption.

9 The second ground of appeal relates to the intent to commit

10 forcible transfer. And once again, there's only a single issue in this

11 ground of appeal, and that issue is whether or not he - that being the

12 appellant, Mr. Blagojevic, the respondent to the Prosecution's appeal, I'm

13 sorry - whether or not he had the intent to forcibly transfer and whether

14 or not he shared the intent. Once again, this is a pure error of fact,

15 and therefore the same concerns were -- deference the Court may have with

16 respect to the findings would obviously apply. But in the Prosecution's

17 submission, once again, there is really only one inference to the drawn by

18 Colonel Blagojevic's actions, and that is that, as found by the Trial

19 Chamber, Colonel Blagojevic knew of the objective, which was the

20 elimination of the enclave; that this would necessarily entail removing

21 the Bosnian Muslim population; and he implemented that operation.

22 He didn't simply assist someone else's crime; he carried out the

23 acts of the crime himself. He implemented the plan, which had as its

24 objective the elimination of the enclave. As found by the Trial Chamber,

25 he participated in the crime. He was not assisting it. In a situation

1 where there's an overall operation of this magnitude, those who engage in

2 it with knowledge and fulfil the purpose and take acts to fulfil the

3 purpose, especially one that, as I'll indicate, arose from the acts for

4 the two months prior and included acts right to the end of the forcible

5 transfer, the only inference is that he intended the forcible transfer.

6 He did all these acts to implement the forcible transfer but didn't intend

7 for that to be the case. He ordered the shelling of Srebrenica before the

8 events, but he didn't intend for it to cause the Bosnian Muslims to leave.

9 He assisted in the blocking of the convoys that were going into the

10 enclave, but he didn't intend for there to be the consequences that the

11 Muslims would leave. His troops shelled and shot at the Bosnian Muslims

12 as they fled from Potocari -- from Srebrenica to Potocari. The witness

13 testified that he did that and he had the authority to do that under an

14 order he received from Blagojevic on the 5th, but despite having done

15 that, he didn't intend that it would force them to leave Srebrenica.

16 In my respectful submission, the Trial Chamber engaged in an

17 exercise of finding knowledge and not linking his acts with his mens rea.

18 In light of the time-period, I'd just like to take you to a few passages

19 in the judgement. If I could just ask you to turn to page 177, please,

20 Your Honours, if you have the judgement in front of you; if not, I'll

21 refer to it.

22 This section is the first section that the Trial Chamber makes

23 factual findings with respect to the mens rea. This section includes the

24 factual findings from which they draw their conclusion with respect to the

25 joint criminal enterprise. Now, without overstating the significance of

1 this, I'd ask you simply to look at what the title is. The title of the

2 section is not "factual findings as to his intent," the title of the

3 section is not "factual findings as to the mens rea of Blagojevic." What

4 they're looking for, their starting point is his knowledge of the actions

5 of the Bratunac Brigade.

6 If you then -- in light of the time, I'll just go through a few.

7 If I can ask you to turn over to paragraph 476. It says: "The Trial

8 Chamber furthermore finds that there is sufficient evidence to establish

9 beyond a reasonable doubt that Colonel Blagojevic had knowledge that

10 elements of the Bratunac Brigade, including the 2nd and 3rd Battalion,

11 were involved in sniping and shelling of Srebrenica in the months before

12 the enclave was attacked as well as in the attack on the DutchBat

13 Observation Post Echo in early June. Under the operating practices in

14 place within the Bratunac Brigade, Colonel Blagojevic would have met

15 regularly with his subordinate commanders of the four battalions and would

16 have received regular reports about their activities."

17 With respect, he's not a passive recipient as a bystander

18 receiving reports from his troops after it happens. The sniping and

19 shelling that took place in Srebrenica, the Trial Chamber found, was a

20 policy which he accepted and continued after he became the commander in

21 May 1995. The attack on the Dutch Battalion in June 1995 was an attack by

22 the Bratunac Brigade on UN peacekeepers. It was a coordinated attack and

23 there's exhibits on the record which indicate that after the attack, the

24 next day, Blagojevic is sending replacement troops up to the place where

25 the operation -- where the observation post is, and in his final analysis

1 of combat readiness report, he is reporting on the actions of the troops

2 and taking over the DutchBat observation post.

3 The Trial Chamber, in my respectful submission, deals with it as

4 if he finds out after the fact.

5 Paragraph 477, "The Trial Chamber finds that Colonel Blagojevic

6 knew of the Bratunac Brigade's participation in the attack on the

7 enclave." Well, with respect, this is inexplicable. He didn't know of

8 the attack on the enclave, he wasn't informed after the fact that his

9 troops happened to be involved in it. Colonel Blagojevic received

10 instructions and issued orders on July 2nd to his subordinates and on July

11 5th to his subordinates at the Bratunac Brigade headquarters. Those are

12 the findings. He didn't find out after the fact, as some passive

13 recipient, who happens to realise that his resources are being used by

14 someone else.

15 And then as it goes forward in paragraph 477, it then says: "He

16 knew that it had the effect of causing those civilians and DutchBat to

17 take the decision to leave Srebrenica town and to go to Potocari and again

18 while the civilians were fleeing from Srebrenica to Potocari."

19 He finds in the next sentence that they were fired on on June

20 11th, and he was aware of that. These were his troops; they were carrying

21 out the operation. The operation was to eliminate the enclave. The

22 person who testified said that he was issued an order on the 5th of July

23 which would authorise his shelling. Now, in his examination, that

24 witness, Mr. Gavric, tried to downplay the objective of shelling but

25 admitted that he shelled them and shelled, first of all, at them and then

1 changed his direction and shelled around them. Once again, this isn't

2 Mr. Blagojevic unaware, sitting in Belgrade being informed after the fact

3 that there's troops on the ground and therefore he subsequently had

4 knowledge.

5 If you go through the judgement in subsequent paragraphs relating

6 to his mens rea component, the Trial Chamber specifically approaches it on

7 the basis of its looking for his knowledge. Now, to the fair to the Trial

8 Chamber, in relation to whether or not he planned, ordered, or instigated,

9 they found that those modes of liability were not applicable at the 98 bis

10 stage. So it may have been looking at the issue from that perspective,

11 but that doesn't apply to JCE. He can contribute in many mays, including

12 ordering his troops to do acts, which may be even not illegal but which

13 contribute to the JCE. The fact that the starting point is knowledge, the

14 fact that the starting point is knowledge, indicates that the Trial

15 Chamber didn't look at his acts for the purpose of determining his mental

16 state; they determined first that he had knowledge and looked at the acts

17 to see what he was informed about is as if he somehow received that

18 information as a passive recipient after the fact.

19 Let my submission be, when you go through both the facts and

20 understand the approach taken by the Trial Chamber, this Court would

21 conclude that no reasonable trier of fact could conclude on the acts of

22 his implementation of Krivaja 95, those acts of participation, those acts

23 of implementation that he somehow simply had knowledge of the effect of

24 it, that he didn't intend it to happen, and that he didn't operate

25 together with the other members of the JCE and shared the intent.

1 I'll now move to the third ground.

2 JUDGE POCAR: I defer to Judge Shahabuddeen.

3 MR. FARRELL: Sorry.

4 JUDGE SHAHABUDDEEN: [Microphone not activated]

5 THE INTERPRETER: Microphone, please, Your Honour.

6 JUDGE SHAHABUDDEEN: Is there anything in the trial judgement

7 which alludes to any dissociation of Mr. Blagojevic from the executions?

8 MR. FARRELL: From him personally or individually?

9 JUDGE SHAHABUDDEEN: Yes.

10 MR. FARRELL: Not to my knowledge, no.

11 JUDGE SHAHABUDDEEN: Oh.

12 MR. FARRELL: Thank you.

13 Excuse me, Your Honour. I just wanted to check on how much time

14 the Prosecution has left. I didn't make a note, I apologise, as to when

15 we started.

16 JUDGE POCAR: I believe you started at 8.27 -- 28, okay, if my

17 recollection is correct.

18 MR. FARRELL: Okay. Thank you. That's quite precise, Mr.

19 President.

20 JUDGE POCAR: You can go to 9.38.

21 MR. FARRELL: Thank you.

22 In relation to the third ground of appeal that the Prosecution

23 presents in its appeal brief, the third ground of appeal relates to the

24 application of Article 7(3) in relation to the acts of the Bratunac

25 Brigade. Now, you recall that Mr. Blagojevic was not found guilty under

1 7(1) for aiding and abetting the murder operation, for aiding and abetting

2 the murders and the extermination, as you're aware. And therefore, that

3 issue fell to be decided under 7(3); that would be the issue that the

4 Court would have to address to determine whether or not he was aware of

5 the acts of his subordinates in relation to that operation and failed to

6 prevent or punish. That's the focus of the ground of appeal because it's,

7 in light of the other findings under 7(1), it's not necessary to determine

8 whether or not he also subsequently knew of them under 7(3) because he

9 obviously did; he was found guilty under aiding and abetting.

10 The Trial Chamber found that members of the brigade did provide

11 assistance and it found that Blagojevic became aware of the crimes

12 committed by Momir Nikolic at some point in time after the fact. It

13 doesn't indicate when. And it says that the -- he was aware of the crimes

14 committed by Momir Nikolic, including persecutions. Now, persecutions is

15 a legal characterisation, not the specific acts that he would have known.

16 But in light of the fact that Count 5, persecutions, includes the acts of

17 murder, it's - at least in the Prosecution's submission - apparent that

18 what it was saying that all the underlying acts of persecution, including

19 murder, were known to Mr. Blagojevic at some point in time.

20 The Trial Chamber then finds, for reasons I'll go to, that it's --

21 it would be unreasonable to include that he had 7(3) liability. There's

22 four issues that are raised in this ground. The first one relates to

23 whether or not 7(3) liability is limited to only those cases where your

24 subordinates commit, commit in the physical sense of perpetration. And I

25 won't make any submissions on it. Your Honours are fully aware of it, and

1 since the briefs have been filed, the decision by the Oric Trial Chamber

2 has come out rejecting that proposition, as it has been rejected by the

3 same Chamber in the Boskovski case and I'm aware that there's an

4 interlocutory appeal before this Chamber on that issue already, so you're

5 fully briefed of it.

6 The second issue is that the Trial Chamber seems to indicate that

7 it was unable to conclude that Blagojevic would know the exact identity of

8 the perpetrators, and therefore he couldn't be found guilty under 7(3).

9 Once again, in light of the Krstic Appeals Chamber judgement and the

10 Delalic Appeals Chamber judgement, specifically that you only have to be

11 put on notice of alarming information that your subordinates are

12 committing crimes, submits that it's incorrect to determine -- or to

13 conclude that unless you know the exact identity, you therefore do not

14 have to inquire further.

15 There are two other errors that just require a few minutes of

16 submissions, in my opinion, and that's in relation to the determination of

17 superior/subordinate relationship between Momir Nikolic and

18 Mr. Blagojevic.

19 If I could ask Your Honours to turn to paragraph 795. Paragraph

20 795 is the paragraph dealing with the liability of Colonel Blagojevic for

21 the acts of Momir Nikolic. It begins with a finding that Momir Nikolic

22 was a subordinate of Colonel Blagojevic. It proceeds to indicate that

23 Momir Nikolic committed crimes, at least persecutions. It finds that the

24 Trial Chamber at some point in time -- sorry, the Trial Chamber finds that

25 at some point in time Colonel Blagojevic had knowledge of this, so

1 therefore, he was put on knowledge of the crimes themselves. And then

2 concludes that considering that during the period between July and

3 November 1995, that senior members of the Bosnian Serb army were in the

4 Srebrenica area issuing orders and instructions, and taking into

5 consideration the Trial Chamber's findings in relation to the functional

6 chain of command for the security organ, that's Momir Nikolic, not the

7 military police, but the security organ. The Trial Chamber is unable to

8 conclude that he had effective control.

9 It then, three lines from the bottom, beginning with the

10 words "moreover," states: "Moreover, while recognising that Colonel

11 Blagojevic failed to take any measure to prevent or punish the crimes of

12 Momir Nikolic, the Trial Chamber is convinced that a commander is not

13 obliged to perform the impossible." No problem with that from the

14 Prosecution, that proposition, but it's what continues that I take issue

15 with: "And that reporting the matter to competent authorities may not

16 have been in the circumstances at that time a reasonable measure that

17 would have led to the punishment of Momir Nikolic."

18 As you're aware, the Trial Chamber had earlier found that Momir

19 Nikolic was within Blagojevic's chain of command and that the functional

20 chain of command did not disturb that responsibility. It did recognise,

21 though, that Momir Nikolic was receiving orders, that's correct, from

22 members of the Bosnian Serb forces while on the ground, and that those

23 orders were orders that he was given specifically while on the ground

24 directed from the Bosnian Serb forces. It doesn't appear to be negating

25 the previous findings about the functional chain of command, that it

1 didn't affect the command and control, but that specifically for Nikolic

2 in this case, it wouldn't have resulted in any result.

3 The point that I simply wanted to make was if the Trial Chamber's

4 finding is that the acts that are within your material ability have to be

5 ultimately successful, that would not be a position that the Court should

6 accept. The material ability would include the ability to initiate

7 measures, those within your capacity or within your realm as a commander,

8 and would include steps that don't reach the final result. The Trial

9 Chamber's analysis of the act of reporting Momir Nikolic to the military

10 justice authority comes to a halt because of the finding it may not lead

11 to punishment. But if it appears that the ultimate result will be that

12 the subordinate will not be prevented or punished, the question remains:

13 Does that mean that a superior whose material ability includes reporting

14 to superiors or reporting to military courts or initiating an

15 investigation should be absolved of the responsibility of doing so? In

16 the Prosecution's submission, the answer must be no.

17 First, even if the steps which the commander is able to take may

18 not result in the ultimate prevention of the crime, it could have other

19 effects such as postponement of the crime. Second, a commander does not

20 need to know whether it is certain that the crimes will be prevented or

21 punished, and it can't be left if this is the inference to the subjective

22 consideration of a commander to determine whether or not his acts will be

23 beneficial to the prevention or punishment of the crime.

24 Thirdly, the result seems illogical when you think of superior

25 orders. Superior orders are not a defence. So a commander who accepts an

1 illegal order and implements it can't raise superior orders as a defence.

2 But a commander whose troops accept an illegal order and he finds out

3 about it, if the order came from his superior, essentially he does have

4 the defence of illegal orders, i.e., those illegal orders were given to my

5 subordinates and even if I took action it wouldn't result in punishment.

6 If you accept that analysis, Article 7(4) of the Statute, which is the

7 defence of superior orders is not a defence, would only apply to ordering

8 but would not apply to 7(3) liability. Take, for example, the recent case

9 of Galic, and this is a purely hypothetical scenario. As you know, the

10 evidence in that case and the findings arose from the acts over a period

11 of time. There was some issue as to whether or not, in this hypothetical

12 scenario, whether or not Galic himself ordered or whether he's liable

13 under 7(3). If the campaign of persecutions of Sarajevo was a result of

14 orders from the civilian or military superior, which clearly intended this

15 to be the result, Galic would not be found guilty because any acts he did

16 with his subordinates to prevent the shelling of Sarajevo would be

17 useless.

18 Simply conclude that the approach by the Trial Chamber was an

19 error and that the Court should be cognizant of the fact that the material

20 ability to prevent or punish does not look to the end result but looks to

21 what's in their capacity to do and what means would be reasonable in the

22 circumstances.

23 In light of the time, if you have any questions, I'll be happy to

24 assist; if not, I would like to allow Mr. Costi to --

25 JUDGE POCAR: Yes, I see Judge Meron.

1 JUDGE MERON: [Microphone not activated]

2 THE INTERPRETER: Microphone, please, Your Honour.

3 JUDGE MERON: If I may ask you for a -- to clarify for me, I must

4 have missed something in the reply that you gave to the question asked of

5 my distinguished colleague Judge Shahabuddeen. The question as you

6 remember was whether there was anything in the judgement which would

7 dissociate Blagojevic from mass execution. And your answer was, if I

8 remember correctly, no, there isn't.

9 MR. FARRELL: Not that I'm aware of, Your Honour.

10 JUDGE MERON: Right. Let me understand, mass executions means the

11 same as mass killings?

12 MR. FARRELL: Yes, Your Honour.

13 JUDGE MERON: Now, didn't we already learn that the trial

14 judgement in fact said that Blagojevic had no knowledge of that?

15 MR. FARRELL: That's correct.

16 JUDGE MERON: So isn't -- right. And I suppose there is nothing

17 in the judgement which associates Blagojevic to the executions?

18 MR. FARRELL: Well, besides his acts of assistance through his

19 troops, but my understanding of Judge Shahabuddeen's question - I

20 apologise for interrupting you - was whether or not there is any evidence

21 on the record that he, as you're aware, dissociated himself. In other

22 words, whether he took steps which would clearly indicate to the contrary,

23 and there isn't any. With respect to your question, yes, it's true they

24 didn't find knowledge.

25 JUDGE MERON: Thank you very much. This is very helpful.

1 President, I would like to ask one legal question. Do I have time

2 to do that?

3 JUDGE POCAR: Yes, proceed.

4 JUDGE MERON: Thank you so much.

5 I know that you did not raise this in your appeal, but the Defence

6 raised it and the Defence yesterday made it very clear that they do

7 maintain all the grounds of appeal raised in their briefs. And I would be

8 extremely grateful if you could help enlighten us on a legal point which

9 pertains to complicity of Blagojevic in genocide. Now, you will recall

10 that the trial judgement concluded that for complicity in genocide to

11 occur, the accused must have knowledge that his acts assisted in the

12 commission of the specific crime by the principal offender and that the

13 accused knew that the crime was committed with specific intent. The Trial

14 Chamber then concluded that Blagojevic's knowledge of the goal of forcible

15 transfer, along with his knowledge that the men were separated from the

16 rest and detained under inhumane conditions, was enough to show knowledge

17 that the crime of genocide occurred.

18 Now, is this not an unduly broad view of genocide. Could you

19 explain to me the basis for concluding that forcible transfers constitute

20 genocide in this case. Aren't we watering down here -- hasn't the Trial

21 Chamber watered down the concept of genocide if we deem forcible transfer

22 of a population to be enough to constitute genocide? And let me tell you,

23 I'm well aware of the judgement in the Krstic case, but there our decision

24 was different from that.

25 MR. FARRELL: Thank you, Your Honour.

1 I'll try to assist, though if I don't or if this issue is a matter

2 that is of grave concern to the Court, I'd ask that we be given the

3 opportunity to -- brief -- if of course it would assist Your Honour simply

4 because it wasn't raised and it wasn't briefed. So I think my response is

5 going to be more impressionistic than legal.

6 The approach that -- first of all, let me set out the approach

7 that I think is the appropriate approach to determine whether or not an

8 accused would have mens rea in these circumstances. The issue isn't

9 whether or not forcible transfer in and of itself constitutes or results

10 in genocide. The issue is whether or not, based on the evidence,

11 including the forcible transfer, one could infer the intent and that the

12 focus should not be on whether certain acts do or don't constitute

13 genocide and whether the forcible transfer of the population, as you've

14 requested, is enough to constitute genocide. I think the starting point

15 has to be whether or not there was an underlying act, which in this case

16 there was, and whether or not there is sufficient basis to determine that

17 the Court's finding from -- of the inference of the genocidal intent was

18 reasonable.

19 Now, in that case, in that respect, the focus isn't on whether or

20 not reliance on forcible transfer would result in an unduly broad

21 definition of genocide because it's not the completion of the act that

22 we're concerned about with genocide, it's not what acts were taking

23 place. We only need to look at the underlying acts. And so I would

24 submit that the approach that should be taken in the way that I read the

25 judgement was, despite those particular passages, the Chamber did find

1 that there was a genocide on the basis of all the acts. And found that as

2 a result of what Mr. Blagojevic knew at the time, even without the mass

3 executions, he was aware of the genocidal intent of others. Now, whether

4 that finding that he was aware of the genocidal intent of others or not is

5 reasonable is an issue that may go to the ground of appeal raised by my

6 learned friend, that in light of his lack of knowledge about the mass

7 killings.

8 But that's the assessment, and though the Trial Chamber does at

9 one point in time engage in a discussion about the definition of what

10 destruction means - and I do accept Your Honour's comments that they do

11 talk about destruction in a manner which includes forcible transfer as

12 the -- included in the act of the genocide itself - but what they then do

13 is they then go back to the issue of whether or not on the basis of all

14 the evidence on the record you can infer intent without the mass killings

15 and that a genocide did happen. So they didn't venture into dangerous

16 waters at the end of the day and they did apply it correctly, that being

17 that, in light of all the evidence that was on the record as to his

18 knowledge, he knew of the perpetrators' intent for the crime of

19 complicity.

20 Sorry, if that's not more helpful, Your Honour.

21 JUDGE MERON: Thank you, Mr. Farrell.

22 MR. FARRELL: I apologise for the shortness of time I've left

23 Mr. Costi.

24 JUDGE POCAR: Please proceed.

25 MR. FARRELL: Thank you very much, Mr. President. I'll just ask

1 Mr. Costi to address you. Thank you.

2 [Trial Chamber and registrar confer]

3 MR. COSTI: Good morning, Your Honour. May I ask you how many

4 minutes I still have, like two, three, probably? No more.

5 JUDGE POCAR: Well, your time will elapse in two minutes, but I

6 think it's fair to give you five minutes more.

7 MR. COSTI: Thank you very much, Your Honour.

8 JUDGE POCAR: Please.

9 MR. COSTI: I appreciate that.

10 I will now address the Prosecution appeal on sentence. The

11 Prosecution would first like to say that it maintains all the arguments

12 addressed in the appeal brief in relation to sentencing; however, also in

13 light of the recent appeal judgement in committing Galic, I wish not to

14 reiterate only one aspect of the Prosecution's sentencing appeal. 18

15 years' imprisonment for Blagojevic and nine years' imprisonment for Jokic

16 are manifestly inadequate sentences in light of the scale and gravity of

17 the crimes and in comparison to the sentence imposed by this Tribunal.

18 The Trial Chamber correctly stated at paragraph 818 that the

19 gravity of the offence is the primary factor to be considered in

20 determining the sentence. This was also recently confirmed by the Appeals

21 Chamber in the Galic case at paragraph 442. The question on appeal as

22 formulated in the Galic appeals judgement is whether the Trial Chamber

23 gives sufficient attention to this factor in sentencing; if it did not,

24 the sentence may be manifestly inadequate. And in a quote: "It is the

25 Appeals Chamber's prerogative to substitute a new sentence when the one

1 given by the Trial Chamber cannot be reconciliated with principle

2 [indiscernible] sentencing."

3 This is exactly the case for Blagojevic and Jokic. Colonel

4 Blagojevic, he was found responsible for complicity in genocide, aiding

5 and abetting murder, persecution, and inhumane acts. As commander of the

6 Bratunac Brigade, he substantially contributed to the destruction of the

7 Bosnian Muslim community in Srebrenica. He permitted his subordinates to

8 be used for this purpose by those active with genocidal intent --

9 THE INTERPRETER: Please slow down for the interpretation. Thank

10 you.

11 MR. COSTI: I'm sorry. And he knew that. He substantially

12 contributed to the persecution and forcible transfer of 25.000 Bosnian

13 Muslims through their capture, their detention, their physical and mental

14 suffering. Blagojevic substantially contributed to the cruel and inhumane

15 treatment of thousands, the separation, the fear and the terror on Muslim

16 civilians, the transport of women and children, and the murder of more

17 than 50 men. Blagojevic's sentence to 18 years does not reflect the scale

18 of the crimes he was convicted for.

19 Major Jokic, he was found guilty for aiding and abetting,

20 extermination, murder, and persecution. He contributed as duty officer

21 and chief of engineering through sending and monitoring the deployment of

22 the Zvornik Brigade resources and equipment to the mass execution sites.

23 This ensured the successful completion of the murder operation. He

24 substantially contributed to the extermination of more than 3.000 Bosnian

25 Muslims. Jokic's sentence to nine years is manifestly inadequate in light

1 of the gravity of the crimes.

2 Neither of the accused, as the Defence might try to argue, was the

3 main architect of the crimes that occurred in Srebrenica, whether the mere

4 fact that someone else played a more significant role in the extermination

5 of 7.000 Bosnian Muslims and the destruction of an entire community does

6 not undermine the gravity of the crime of which the accused are

7 responsible.

8 Comparing cases in sentencing is not always meaningful because

9 differences between cases may make comparison very difficult. However,

10 the Prosecution would mention two cases today: Momir Nikolic and Dragan

11 Obrenovic. They were convicted for persecution in respect of the overall

12 campaign in Srebrenica and sentenced to 20 and 17 years' of imprisonment

13 respectively. They both pleaded guilty. They both showed remorse, and

14 they both substantially cooperated with the Prosecution. Nikolic and

15 Obrenovic helped the Tribunal to save time and resources. Nikolic and

16 Obrenovic contributed to finding the truth and ultimately to achieve one

17 of the goals of this Tribunal: Reconciliation. On the contrary, in the

18 case of Blagojevic and Jokic, there are not such exceptional mitigating

19 circumstances that might justify the relatively low sentence. The

20 comparison of these cases, in the absence of significant mitigating

21 factors in this case, demonstrate that the sentences imposed are

22 manifestly inadequate. In this context, the point is not whether the

23 Trial Chamber failed to compare this case with similar previous cases; the

24 point is that by comparing these cases, it appears that the Trial Chamber

25 failed to impose an adequate sentence.

1 While the Trial Chamber has a wide discretion in sentencing

2 process, this discretion is not unlimited. The Trial Chamber did not give

3 sufficient attention to the magnitude and the gravity of the crimes. The

4 Trial Chamber erred in finding that the sentence imposed adequately would

5 reflect the gravity of the crime. For this reason, even if the Appeals

6 Chamber were to conclude that all the other arguments raised by the

7 Prosecution in the brief should be dismissed in relation to sentencing,

8 should be dismissed, and even if it were to confirm all the findings that

9 the Trial Chamber made in relation to sentencing, still the sentence

10 handed down by the Trial Chamber should be regarded as manifestly

11 inadequate. Jokic's alone shows that. He participated in the

12 extermination of more than 3.000 people on a discriminatory basis; nine

13 years' of imprisonment is manifestly inadequate. The Prosecution for

14 these reasons respectfully requests this Chamber to increase Blagojevic's

15 and Jokic's sentences to accord with the principle of sentencing of this

16 Tribunal.

17 And this ends my submission. I thank you for the five minutes I

18 had in addition.

19 JUDGE POCAR: I thank you, Mr. Costi.

20 Judge Shahabuddeen.

21 JUDGE SHAHABUDDEEN: Counsel, I'm at page 299 of the trial

22 judgement, which speaks at the top of aggravating circumstances. Is there

23 anywhere in the trial judgement that reference is made to Srebrenica's

24 status as a United Nations protected area? Has that factor any relevance

25 at all to the concept of aggravating circumstances as employed in this

1 case?

2 [Prosecution counsel confer]

3 MR. COSTI: Your Honours, I do -- I'm not aware whether the Trial

4 Chamber did consider as an aggravating this element. The point is

5 understanding the status of a safe area or protected area of Srebrenica.

6 It is related to the commission of the crime for which he was convicted.

7 If this is what the Appeals Chamber would consider or the Trial Chamber

8 found, in that case, it might be considered as an aggravating factor and

9 is not in the trial judgement.

10 JUDGE SHAHABUDDEEN: Thank you.

11 JUDGE POCAR: I thank you.

12 Well, there are no other questions. And looking at the clock, I

13 believe that it's probably preferable to have the break now and to

14 reconvene at 10.15 sharp to listen to the response of Mr. Blagojevic and

15 then of Mr. Jokic.

16 So the hearing is adjourned now.

17 --- Recess taken at 9.46 a.m.

18 --- On resuming at 10.17 a.m.

19 JUDGE POCAR: We resume now the hearing, and as scheduled, I give

20 the floor to counsel for Mr. Blagojevic for the response to the

21 Prosecution's appeal.

22 You have the floor, Mr. Domazet.

23 MR. DOMAZET: [Interpretation] Thank you, Your Honours. Although,

24 to an extent, it is difficult to speak about all this from the position of

25 the Defence, which, as I said yesterday, believes justifiably that the

1 accused did not have a fair trial and that the Defence now must evaluate

2 and refer to evidence presented during the trial without any participation

3 by the accused.

4 When talking about ground 1 of the Prosecution's appeal regarding

5 the mass killings and knowledge of mass killings, I would first like to

6 say something about the area of responsibility. Unfortunately,

7 Mr. Blagojevic, as the accused, did not have a military expert who would

8 be able to explain that in detail, but it is evident that the Prosecution

9 views the area of responsibility as the area in the entire sector,

10 including Srebrenica, Bratunac, the entire geographic area, in the belief

11 that the headquarters of the brigade is in Bratunac. This is erroneous

12 because at the time of the operations of -- Operation Krivaja 95, each

13 unit that participated, and it is well-known that there were many other

14 units as well, thus that the Bratunac Brigade was just one of the military

15 units. There were also police units there and special units, as you know,

16 there that participated in this operation.

17 The true area of responsibility is regulated by regulations,

18 regulations referred to by the Prosecution as well and which were in force

19 at the time and which were inherited from the JNA, and that is that during

20 combat actions, the area of responsibility is the area in which the unit

21 is assigned or is acting there. So the task of the Bratunac Brigade there

22 was clear. The position of the company of the Bratunac Brigade, where

23 they should be, as stated previously and is not disputed, the forward

24 command post was at Pribicevac. It's a mountain which is located above

25 Srebrenica, and these companies of the Bratunac Brigade each had their own

1 positions in relation to Srebrenica where they were. Precisely, that area

2 was assigned to the Bratunac Brigade, and that was their zone of

3 responsibility in these actions.

4 The Prosecution is trying to prove that the village of Kravica was

5 in the area of operations of this brigade. Had this been so, at least one

6 soldier or any unit would have been found there during the combat actions

7 and during Krivaja 95 operation, and this is not the case. As far as I

8 recall, the police unit was in Kravica, just as other units were in other

9 locations. And they were all acting in accordance with orders by superior

10 commands, according to which Blagojevic himself, as the commander of the

11 Bratunac Brigade, also acted. So neither Kravica or any other places that

12 are mentioned, Glogova, and so on, were not in the area of responsibility

13 of the Bratunac Brigade. The town itself of Bratunac was not part of it.

14 It was the seat of the Drina Corps and it was the seat of the forward

15 headquarters or staff of the Army of Republika Srpska. But the actual,

16 real zone of responsibility was where the actual Bratunac Brigade had its

17 companies and its actions. This was not in Bratunac, other than the

18 headquarters that existed there before the combat actions.

19 There were no members of the brigade or soldiers of the brigade in

20 Bratunac itself; they were at their assigned positions in the zone of

21 responsibility. So this is the area of responsibility. Maybe during the

22 trial, this was not clarified, and I think that as a consequence, we have

23 the fact that the accused did not have a military expert who would be able

24 to explain such matters. However, we are finding our conclusions on

25 regulations which can be interpreted in this specific way. If the zone of

1 responsibility, that term, was interpreted in a different way, then we

2 would perhaps have a different angle.

3 The assertion that he knew about the detentions, which is quite

4 general and broad, if we are considering the capture of members carried

5 out by the army, I must repeat what I already stated yesterday, and that

6 is, when we're talking about the Bratunac Brigade and its assignments and

7 the positions where it was, they did not encounter a single soldier of the

8 28th Division of the Army of Bosnia and Herzegovina, had no actions in

9 relation to them, and didn't have a single capture. So the Bratunac

10 Brigade did not have a single captured soldier and absolutely no civilians

11 that were captured either.

12 When we're talking about the possibility of his knowledge, I

13 believe that my learned friend from the Prosecution very frequently talked

14 about the possibility of being aware of the probability, should have

15 known, would have known. In my view, these are assumptions mostly because

16 of his post as the commander of the brigade at the time. I would just

17 like to recall not only the circumstances, such as the forward command

18 post being quite far from Bratunac and from the positions of all of these

19 other units. A little bit later I'm also going to refer to the same

20 exhibit referred to by the Prosecution, and then I would like us then to

21 look at the map that was already shown so that the Appeals Chamber could

22 actually see where Pribicevac is, where this forward command post is, and

23 how far it is from the area where the pull-out was underway of both

24 members of the 28th Division and the civilians, where the column was

25 intercepted, which is something that was discussed during the trial before

1 the Trial Chamber.

2 My learned friend mentioned as an argument that no reasonable

3 trier of fact could establish that the accused did not have the

4 opportunity to know about the killings, and even that the meetings were

5 held in the Bratunac Brigade headquarters, if I understood correctly what

6 was said. So I need to repeat this. The Bratunac Brigade headquarters

7 was not the location of a single meeting. General Mladic, who did come

8 several times to Bratunac, and this is well-known, held meetings with

9 different officers, with representatives of DutchBat, and held these

10 meetings with many security officers of the Zvornik Brigade, the Drina

11 Corps, but he never held any meetings with Colonel Blagojevic, whether

12 because he felt that this was not necessary in view of the assignments of

13 the Bratunac Brigade in the operation or because he felt that Blagojevic

14 was at his command post in Pribicevac - this is a separate question. But

15 no meeting was actually physically held in the premises of the Bratunac

16 Brigade headquarters.

17 Of course, I said yesterday that the only meeting with some of the

18 officers was on the 11th of July in the evening after 2200 hours when

19 Blagojevic came from Pribicevac and encountered at his command post in his

20 room General Krstic with a group of his officers. There they talked, and

21 that is all that he was able to see of superior officers or anybody from

22 the superior command until he left for Zepa with the brigade, because that

23 was his next assignment. And straight from the positions where his

24 brigade was, he left to assume another assignment in Zepa.

25 When you look at the map - perhaps now is a good time to look at

1 the map. I think this is Exhibit P16.1. Can we please look at this

2 exhibit on the monitors. When you look at the place where Pribicevac

3 is --

4 MR. FARRELL: Excuse me, I'm sorry for interrupting. I'm just

5 going to see if we can assist by getting the map up. It's not on the

6 screen, Mr. Domazet, as I understand.

7 JUDGE POCAR: It's not yet on the screen.

8 MR. FARRELL: Sorry.

9 MR. DOMAZET: [Interpretation] Thank you. Perhaps you can assist

10 me. This is the first map that you showed earlier. I think it was

11 indicated -- marked as P16.1 or 161. Maybe that was a mistake in the

12 transcript.

13 MR. FARRELL: It's Exhibit P16.1, and my understanding is it

14 should be on screen now if you press the e-court button.

15 JUDGE POCAR: Yes. Yes, we have it now.

16 MR. DOMAZET: [Interpretation] Yes, yes. Thank you. Yes, we can

17 see the map now. You can see where Bratunac is, Pribicevac. You cannot

18 see that it's a mountain or how high it is, but it is a mountain above

19 Srebrenica. So even though it doesn't seem that far on the map, the

20 actual physical distance is about 20 kilometres to Bratunac. The road

21 goes through Sase, as you can see on the map. And from the statements of

22 various witnesses, you can see that a person would need two hours to cover

23 the distance between Bratunac and Pribicevac in either direction. So in

24 those circumstances, it was quite a distance away. You needed two hours

25 to reach Bratunac from Pribicevac and vice versa. Units of the Bratunac

1 Brigade, which were at their positions towards Srebrenica - and I already

2 mentioned this yesterday - did not operate in that direction at all, but

3 operated on a completely different side, towards Nova Kasaba, Sandici,

4 Konjevic Polje, Cerska. These were the directions in which the civilian

5 columns, including probably members of the 28th Division, were pulling

6 out. So there were mixed columns. That is the area around Nova Kasaba

7 and Konjevic Polje that is mentioned in this case as the place where units

8 were intercepted, some military and some military police units intercepted

9 and detained those people, and, as is well-known, were taking them in the

10 direction of Zvornik later.

11 You can see on the map that this is a completely different region.

12 What I believe is very important and needs to be stated is that the

13 operation to search the terrain dealt with by the appeal and the

14 Prosecutor attributed importance to it today as well, especially to the

15 fourth position where the 4th Battalion and the 4th Company were and where

16 the command post was. What is this about? The searching of the terrain

17 under orders of Colonel Blagojevic, and it's an order that we have, was

18 issued to the 1st, 2nd, and the 3rd, was to search the terrain in front of

19 the positions where they were and where they were anticipating combat

20 actions.

21 As far as the fourth, to which my learned friend refers to,

22 Colonel Blagojevic's assignment there was quite different. There wasn't

23 supposed to be any movement of troops or any kind of search of terrain.

24 They were not supposed to leave the place. The order was just to monitor

25 the terrain in the locations they were facing, including Sandici.

1 Blagojevic, when he issued that order, didn't know who would be where and

2 he didn't know who was in Sandici or on the road, that there were already

3 some units on the road, which I think they were police units; he didn't

4 know any of this. So the assignment of this 4th Company, to which he

5 refers to, which was the closest or the furthest away from the command

6 post of the Bratunac Brigade, is quite different.

7 So it was monitoring the terrain, nothing in common with Kravica

8 or Sandici, the units didn't go or enter Kravica or any of these other

9 places. The relative proximity, we're talking about 10 kilometres or

10 several kilometres in relation to the command post, really cannot be any

11 reason for Colonel Blagojevic's responsibility or for the possibility of

12 him knowing or being aware that there was shooting in Kravica and the

13 killing of people who were there. I believe that the Trial Chamber

14 dwelled on this, and in the relevant paragraphs, concluded that there was

15 no evidence of this. And I believe that in that part, for the above-given

16 reasons, the appeal by the Prosecution is without ground.

17 There has been mention here of Blagojevic carrying out blockades

18 of convoys. This was before the Krivaja 95 operation. I believe this has

19 been dealt with in detail in the appeal brief submitted by the Defence, so

20 I will not go into it again. Your Honours will certainly take into

21 account everything contained in the submissions of all sides. I only wish

22 to point out that humanitarian aid convoys were a security issue, that

23 permission was received from the General Staff of the Republika Srpska for

24 the passage of convoys, and only those convoys who had that permission

25 were checked to make sure that this was in compliance with orders. So no

1 one could either prevent or permit something that had not already been

2 dealt with at a higher level.

3 If I understand correctly with reference to the attack on

4 Srebrenica or on the 28th Army, it is quite clear who received issues --

5 who received orders and instructions from his higher command and passed

6 them on. I only wish to reiterate what has been said in response to a

7 question by His Honour Judge Shahabuddeen as to whether Srebrenica was a

8 UN-protected area at the time. Although the question was put in a

9 different context with relation to sentencing, I wish to point out that

10 there is no contest about this. It really was a UN-protected area, but it

11 was a zone where no military forces were supposed to be present of either

12 side, either the BH federation or the Republika Srpska, yet it is

13 well-known that the 28th Army of Bosnia-Herzegovina was located in that

14 area. We have presented evidence to show that. The circumstance that

15 this was a UN-protected area was used by members of the Army of

16 Bosnia-Herzegovina to launch attacks from the area or to target certain

17 areas, and there were even cases where civilians were attacked in

18 villages. They would launch the attack from the zone and then withdraw to

19 it again.

20 Therefore, the aim of the Krivaja 95 operation was not the

21 civilian population, but these troops, the 28th Army, which had to be

22 prevented from acting from the UN-protected areas against targets of

23 Republika Srpska. And this was the goal that Blagojevic, as one of the

24 participants and unit commanders, was given. The goals were quite clear.

25 My learned friend often said he was informed -- there is an

1 abundance of evidence to show he was informed. He had to be informed as a

2 commander. These are some of the arguments put forward here. I only wish

3 to say if there is an assumption that he had to be informed, we can see

4 from the communications and the information that reached him what he knew

5 and what he did not know; who was supposed to be informed is another

6 matter. As for evidence that he knew what was going on in Potocari, where

7 he did not set foot either in those days or later on, or what happened

8 later on with the transfer of prisoners, what happened to the buses, it

9 was said that he knew that some buses went outside the area with the women

10 and children and others went in a completely different direction; but we

11 maintain that there is no evidence to show this.

12 Momir Nikolic is a key figure when referring to subordinates who

13 committed crimes. With reference to Momir Nikolic, I wish to draw

14 attention to what I have already stated in my submissions, and that is

15 that as a security officer he acted upon the orders received from his own

16 chain of command in the security organ, and this amounted to 80 per cent

17 of his job. He was acting independently of his commander, to whom he was

18 subordinated indeed, but he was not duty-bound even to inform him of what

19 he was doing when following orders from the security chain of command.

20 And this ran through Beara and the Drina Corps of the security organ, and

21 what Momir Nikolic was doing in those days is something that Blagojevic

22 cannot be held responsible for. That may be the reason why the Court

23 decided that Momir Nikolic was not under the effective control of Vidoje

24 Blagojevic. However, the issue at hand is not whether he was under

25 effective control or not, but that he was actually carrying out tasks

1 which had nothing to do with the Bratunac Brigade. Out of the almost

2 2.100 members of the brigade, no one participated in any of the activities

3 charged here, apart from Momir Nikolic and the military policemen that he

4 found and gave orders to. And he had the right to do this as a security

5 officer. All the rest, as has been explained in the submissions, the two

6 who were burying bodies were civilians, they were not members of the

7 brigade; they were in the civilian protection.

8 There was a bus driver who was in the civilian protection, not in

9 the brigade. So no member of the brigade participated.

10 As for Momir Nikolic, I refer to paragraph 3.167 in the appeal

11 submissions. It was further stated that he could have found out at least

12 several days later. Blagojevic's task was to prepare his unit for

13 departure to Zepa, and that is what he was focusing on, preparing the unit

14 and departing for Zepa, which is what he did. What he was doing at the

15 time had nothing to do with what happened next in Bratunac, Zvornik, or

16 any other location where mass murders took place.

17 I think I have a few minutes left, Your Honours, and then I will

18 finish.

19 With respect to sentences, in the appeal brief of the 20th of

20 October, the Defence presented its standpoint with respect to what His

21 Honour Judge Meron said yesterday. In paragraph 9.2 it is said that in

22 the final brief that nothing was stated about this in the brief because

23 there was no cooperation with the Defence counsel, and this is and remains

24 a big problem.

25 But everything I said in my response of the 20th of June, 2005, I

1 wish to say that I personally, and as Defence counsel for Vidoje

2 Blagojevic, I feel that those responsible for the tragedy of Srebrenica

3 must be punished, but the true perpetrators must be punished. This Court

4 will certainly establish in proceedings here in The Hague and also in

5 proceedings, to the best of my knowledge, being conducted in Sarajevo, who

6 the perpetrators were. Vidoje Blagojevic, however, was not one of the

7 perpetrators and wishes to prove this in a new and fair trial.

8 Thank you, Your Honours.

9 JUDGE POCAR: I thank you. I give -- I see Judge Guney wants to

10 put a question. Please.

11 JUDGE GUNEY: Thank you, Mr. President.

12 [Interpretation] Mr. Domazet, you mentioned the fact that your

13 client, in the appeal, did not have the assistance of a military expert.

14 You also said that had he been able to use the -- a military expert, his

15 powers and the links between him and the acts could have been better

16 defined. Please tell us, do you feel that the lack of such assistance

17 influenced the fair trial; and if so, to what extent and from what aspect.

18 Thank you.

19 MR. DOMAZET: [Interpretation] Thank you, Your Honours. Yes, I did

20 state this, and I feel that the testimony of a military expert would have

21 been of extreme importance. It is very important in any case, but

22 particularly in a case such as this one. It could have thrown light on

23 the events in Srebrenica, the positions of the various units, the changes

24 of the initial plan. A military expert for the Defence could certainly

25 have influenced the situation in favour of the defence of the accused, and

1 it is my view, that in addition to the other circumstances and Mr.

2 Blagojevic's personal testimony, which he has not waived, it would have

3 been of exceptional importance to have a military expert in order for the

4 trial to be fair.

5 JUDGE GUNEY: [Interpretation] If military expert assistance were

6 provided?

7 MR. DOMAZET: [Interpretation] Your Honours, if you're referring to

8 Mr. Blagojevic, he did not have an opportunity to address the Court; and

9 whenever he did have such an opportunity, he always stated that the

10 Defence imposed on him was not his own Defence and he asked for his

11 Defence. Mr. Karnavas did not lead this evidence. He did not call such

12 evidence, and it would have been crucial.

13 JUDGE GUNEY: [Interpretation] Thank you.

14 JUDGE POCAR: Thank you.

15 Judge Shahabuddeen.

16 JUDGE SHAHABUDDEEN: Mr. Domazet, you correctly recognised that my

17 references to the status of Srebrenica as being that of a United Nations

18 protected area were made in connection with sentencing, and I take

19 entirely your point that it is the function of the Appeals Chamber to make

20 sure that the real perpetrators of the crime at Srebrenica are punished.

21 But I also bear in mind your remark about the United Nations status of

22 Srebrenica as a protected area to the effect that you did not consider

23 that there was any contest about this. Your words were: "It was really a

24 United Nations protected area."

25 Now, if the Appeals Chamber were to hold that the convictions made

1 by the Trial Chamber of your client were justified, does it follow that

2 the status of Srebrenica as a United Nations protected area has to be

3 taken into account for sentencing purposes?

4 MR. DOMAZET: [Interpretation] Your Honour, if I may, I would like

5 to avoid issues of sentencing because of the instructions I have received

6 from my client, who even wanted me not to mention it in my written

7 submissions. As I said, the area truly was a protected area but there was

8 also the 28th Army there and they violated the status of that area because

9 they had their army headquarters within that area and acted from it. The

10 United Nations, unfortunately, did not prevent this, and this was a

11 considerable time before the beginning of this operation. So I feel that

12 this, too, should be taken into account because I still maintain that the

13 civilian population was not the target of the attack. The target was only

14 military, the 28th Army of Bosnia-Herzegovina. And that is an order that

15 Blagojevic merely carried out, having received it from a higher command.

16 JUDGE POCAR: Thank you.

17 Judge Meron.

18 JUDGE MERON: Just to clarify your point, counsel, are you telling

19 us that the level of responsibility for an attack, deliberate attack, on

20 the safe zone in Srebrenica was a higher level of command than of

21 Mr. Blagojevic? Belonged to the corps or the army.

22 MR. DOMAZET: [Interpretation] Well, certainly the attack on

23 Srebrenica and the whole operation was something planned by the General

24 Staff of the Army of Republika Srpska and General Mladic as the Chief of

25 Staff and then the units that were part of the Drina Corps, one of which

1 was the Bratunac Brigade. It is well known that there were other units

2 there, including even police units, and many other units, not just those

3 of the Bratunac Brigade.

4 JUDGE MERON: Finally, counsel, I must say to you that I'm not

5 persuaded that the absence of military advisor should explain why

6 Mr. Blagojevic, as a colonel of the army and a professional military

7 officer, did not during the trial point to the -- what you claim to be the

8 areas of responsibility of his brigade in contrast to other units.

9 Surely, despite all the difficulties that he had with his counsel, this

10 was an elementary point that he could and should have made clear.

11 MR. DOMAZET: [Interpretation] Your Honour, I really believe that

12 he didn't have the opportunity to do this because, simply - and it can be

13 seen from the transcript - he was not given the floor. And when he did

14 speak and try to explain his status, it was simply said that he cannot

15 talk about that anymore. So for him to put questions or to make

16 suggestions is something that I don't really see as being possible. Based

17 on what happened, he was just a mere observer and didn't have the

18 possibility to do anything. This question is regulated by the rules and

19 the rules were submitted, the rules of service of JNA. So had the

20 Trial Chamber reviewed that, they would have come to the conclusion that

21 an area of responsibility cannot be an area where the Bratunac Brigade was

22 before the combat actions. Once the units were deployed, then each of

23 those units, as part of their assignments, was assigned to a certain area

24 of responsibility. This is something that could have been established

25 without a military expert, but it would have been done properly and more

1 competently had there been a military expert present.

2 JUDGE POCAR: Well, thank you.

3 I will now turn to counsel for Jokic for the response.

4 You have the floor, Mr. Murphy.

5 MR. MURPHY: Thank you, Mr. President.

6 Your Honours, Mr. Farrell was good enough to tell me this morning

7 that he did not wish to make any further submissions in regard to the

8 ground of appeal dealing with the Petkovci school, and for that reason I

9 will deal with that extremely briefly. Your Honour, the -- when you look

10 at the Prosecution's ground of appeal alleging that Mr. Jokic should have

11 been convicted with respect to that site also, it -- it fails to plead a

12 ground of appeal of which this Appeals Chamber can really take notice. It

13 simply alleges that the Trial Chamber made an error of fact. Your Honour,

14 I think it's an elementary proposition that the standard of review in the

15 Appeals Chamber is not whether or not the Trial Chamber made an error of

16 fact, in other words --

17 I'm sorry, I'll allow your colleagues, Mr. President, to confer.

18 [Trial Chamber confers]

19 MR. MURPHY: Excuse me, Your Honour.

20 The standard of review is not whether the members of this Chamber

21 might have taken a different view of the facts from the Trial Chamber; the

22 standard is whether the Trial Chamber came to a decision which no

23 reasonable Trial Chamber could have reached. And furthermore, I would

24 suggest in the case of an appeal by the Prosecution, more recent

25 authority -- and I think it's interesting that at one point in their brief

1 they refer to the Tadic appeal, of course as we all know the law has been

2 developed by this Chamber quite a bit since then. And in more recent

3 cases, I think it's become clear that on a Prosecution appeal, they must

4 be able to persuade Your Honours that it was inevitable that the liability

5 of Mr. Jokic on that ground should have been established beyond reasonable

6 doubt.

7 The ground of appeal does not even make that statement. It's not

8 even satisfactory as a matter of pleading within the guide-lines of the

9 practice direction and the other rules that this Chamber requires. It

10 should have been dismissed and should be dismissed without further

11 discussion for that reason. But for the sake of completeness, Your

12 Honour, let me just indicate that the Trial Chamber in fact articulated a

13 very sound reason for reaching the conclusion it did. The Prosecution in

14 its brief contends that there was no real difference between the evidence

15 on the Orahovac site and the Petkovci school site, and that if the --

16 there was a conviction on one, it should have been followed that there

17 would be a conviction on the other. In fact, however, the Trial Chamber

18 showed -- and I will refer particularly to two paragraphs of the

19 judgement. Firstly, in paragraph 765, the Trial Chamber noted that there

20 was no evidence at all that any members of the Zvornik Brigade were

21 concerned in the killings that took place at Petkovci school and Petkovci

22 dam. And that was further elaborated in a particular finding that the

23 Trial Chamber made at paragraph 345, when they referred to evidence,

24 positive evidence, that members of a completely different unit, namely the

25 10th Sabotage Department, were actually responsible for those killings.

1 And they noticed also that an officer of the Zvornik Brigade named

2 Milosevic had noted that he did not recognise the soldiers who were

3 guarding the prisoners at that location.

4 So, Your Honour, without more -- without referring to anything

5 else, the Trial Chamber articulated a quite comprehensible reason for

6 distinguishing between those two cases. And given the standard of review,

7 in my submission, Your Honour, that concludes the matter. You can't say

8 that the Trial Chamber was unreasonable to come to that conclusion. They

9 set out, in a quite logical manner, the reasons why they did not find it

10 proved beyond reasonable doubt that Mr. Jokic should be convicted. Your

11 Honour, I submit that given the standard in -- before this Chamber, that

12 should be enough to deny that ground.

13 Let me turn Your Honour now to the matter of appeal, and

14 recognising the difficulty that my learned friend Mr. Domazet had but

15 which I do not have, I would, if I may, respond quite directly to

16 Judge Shahabuddeen's question about the status of Srebrenica as a

17 United Nations protected area. I would like to do so in the context of

18 the issue of sentence as a whole.

19 Firstly, Your Honour, I recognise that there may be exceptional

20 cases in which it would be right for the Appeals Chamber to substitute its

21 own judgement for that of the Trial Chamber on matters of sentence. There

22 may be cases where, quite clearly, the Trial Chamber got it so wrong that

23 intervention is required. But I would respectfully submit that those

24 cases should be few and far between. And for this reason: That the

25 Trial Chamber is entrusted with the primary responsibility for sentencing.

1 They sit through the entire trial. They listen to the evidence. They see

2 the witnesses. And they are in a position to assess the overall

3 criminality of the accused. Your Honours are not in that position. And

4 furthermore, as Your Honours well know, there is no further right of

5 appeal from this Chamber. And if you substitute a sentence, you do so

6 leaving the accused without any further recourse.

7 Now, I do recognise, as I say, that there may be exceptional cases

8 in which that course is justified, but they are truly exceptional and I

9 submit that this case is simply not one of those cases.

10 The Prosecution again has the burden of showing not only that the

11 Trial Chamber passed a sentence with which Your Honours may individually

12 or collectively disagree. They must show that there is something so

13 manifestly wrong with that sentence that the interests of justice demand

14 some intervention by this Chamber. The Prosecution recognises that the

15 Trial Chamber correctly stated the legal test for sentencing, that it

16 depends upon the overall criminality of the accused. Let me note, Your

17 Honour, that the Prosecution -- the Trial Chamber did clearly take into

18 account the whole story of the Srebrenica affair. If you look at the

19 judgement beginning at page 716 -- I'm sorry, paragraph 716, you will see

20 that the Trial Chamber, in relation to Jokic, provides a description of --

21 beginning with the -- this is in regard to their findings as to

22 Dragan Jokic. They begin to consider his liability, and in paragraph 717

23 and 718, they describe the -- the detail of what was planned and then they

24 go on over a number of other paragraphs. This is not the only section of

25 the judgement in which the facts are discussed in detail.

1 And in particular response to Judge Shahabuddeen's question about

2 the United Nations protected area, I respectfully point out that the

3 Trial Chamber did, in fact, consider that matter and recorded in the

4 judgement there is a specific paragraph, 100, which I think there was some

5 discussion of yesterday in response to Your Honour's question, where that

6 fact was explicitly referred to. And I would submit, Your Honours, that

7 there is a presumption that the Trial Chamber took into account all the

8 relevant facts that it needed to pronounce its judgement. And when

9 Your Honours have before you a judgement that refers in explicit terms to

10 the entire history of the crimes, and when the Trial Chamber correctly

11 notes that these crimes were committed in the context of a United Nations

12 protected area, and when that Trial Chamber further goes on to say that it

13 has considered the total criminality of the accused in passing its

14 sentence, I submit that Your Honour should make the assumption that when

15 the members of the Trial Chamber considered their judgement, they did so

16 taking into account all of those facts and weighing them in the balance,

17 as they were required to do. The Prosecution has not pointed to any

18 circumstances to rebut the presumption that the Trial Chamber took into

19 account all the facts that it was supposed to; on the contrary, it seems

20 clear from the judgement that they had in mind the circumstances.

21 And so, while I would -- I would submit, Your Honours, that the

22 status of the Srebrenica enclave as a protected area was not so much an

23 aggravating factor as a necessary fact of the context of the crimes, and

24 so it was considered and was properly considered by the Trial Chamber in

25 passing sentence.

1 In the particular case of Mr. Jokic, I would add to that that his

2 involvement in the matter was not concerned with the launching of an

3 attack against the United Nations protected area, regardless of whether or

4 not the 28th Army was there and whether there was any military

5 justification, and I expressly decline to address that manner. I'm not

6 concerned with it. Regardless of the fact of whether that was true or

7 not, that did not affect Mr. Jokic's participation in this case.

8 Your Honours, the Prosecution also points in their brief, although

9 it was not mentioned today, to whether or not it was proper for the

10 Trial Chamber to take into account certain other facts relating to

11 Mr. Jokic's activities helping to demine certain areas after the war, and

12 with particular reference to an incident in which he was said to have

13 safely have conducted a group of Muslim boys through a minefield to ensure

14 their safety. The Prosecution suggests that those are matters that could

15 not be taken into account by the Trial Chamber because they were not

16 mitigating factors relating to the crimes