Defendant, Ljubisa Beara's Notice of Filing a Public Redacted Version Of
Total Page：16
File Type：pdf, Size：1020Kb
IT-05-88-T 38370 D38370 - D38076 28 July 2010 TR THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA Case No. IT-05-88-T IN THE TRIAL CHAMBER Before: Judge Carmel A. Agius, Presiding Judge O-Gon-Kwon Judge Kimberley Prost Judge Øle Bjørn-Støle, Reserve Judge Registrar: Mr. John Hocking Date: 28 July 2010 THE PROSECUTOR v. VUJADIN POPOVIĆ LJUBIŠA BEARA DRAGO NIKOLIĆ LJUBOMIR BOROVČANIN RADIVOJE MILETIĆ MILAN GVERO VINKO PANDUREVIĆ PUBLIC DEFENDANT, LJUBISA BEARA’S NOTICE OF FILING A PUBLIC REDACTED VERSION OF THE BEARA FINAL TRIAL BRIEF The Office of the Prosecution: Mr. Peter McCloskey Counsel of the Accused: Zoran Živanović and Mira Tapušković for Vujadin Popović John Ostojic for Ljubiša Beara Jelena Nikolić and Stephane Bourgon for Drago Nikolić Christopher Gosnell and Tatjana Cmeric for Ljubomir Borovčanin Natacha Fauveau-Ivanović and Nenad Petrušić for Radivoje Miletić Dragan Krgović and David Josse, QC for Milan Gvero Peter Haynes, QC and Simon Davis for Vinko Pandurević IT-05-88-T 38369 Pursuant to the Trial Chamber’s Order on Outstanding Documents Marked for Identification and on Public Redacted Versions of the Final Trial Briefs (3 June 2010), the Defense for Ljubisa Beara hereby files a public redacted version of its Final Trial Brief as Annex A to the present notice. The Pandurevic Final Trial Brief was originally filed confidentially on 30 July 2009. Respectfully submitted on 28 July 2010 Lead Counsel for Mr. Ljubisa Beara, Word count: 210 2 IT-05-88-T 38368 ANNEX A PUBLIC 3 IT-05-88-T 38367 THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA Case No. IT-05-88-T IN THE TRIAL CHAMBER Before: Judge Carmel A. Agius, Presiding Judge O-Gon-Kwon Judge Kimberley Prost Judge Øle Bjørn-Støle, Reserve Judge Registrar: Mr. John Hocking Date: 30 July 2009 THE PROSECUTOR v. VUJADIN POPOVIĆ LJUBIŠA BEARA DRAGO NIKOLIĆ LJUBOMIR BOROVČANIN RADIVOJE MILETIĆ MILAN GVERO VINKO PANDUREVIĆ PUBLIC DEFENDANT, LJUBISA BEARA’S FINAL TRIAL BRIEF The Office of the Prosecution: Mr. Peter McCloskey Counsel of the Accused: Zoran Živanović and Mira Tapušković for Vujadin Popović John Ostojic and Predrag Nikolic for Ljubiša Beara Jelena Nikolić and Stephane Bourgon for Drago Nikolić Aleksander Lazarević and Christopher Gosnell for Ljubomir Borovčanin Natacha Fauveau-Ivanović and Nenad Petrušić for Radivoje Miletić Dragan Krgović and David Josse for Milan Gvero Peter Haynes and Simon Davis for Vinko Pandurević 4 IT-05-88-T 38366 Introduction ...................................................................................................................1 Overview of the Indictment ..........................................................................................2 The Prosecution failed to prove the allegations as reflected in the Indictment …………………………………………………………………………….3 Ljubisa Beara’s background, education and professional experience reflects his non- discriminatory state of mind and thus is relevant to the specific intent crimes alleged ………………………………………………………………………………...4 Ljubisa Beara’s service in the JNA and his general attitude towards non Serb national groups refutes any evidence of criminal intent ……………………………………….4 Ljubisa Beara’s service in the VRS comported with and was consistent with his life long commitment of treating all citizens fairly and without discriminatory intent …..7 Lack of discriminatory intent ………………………………………………………..12 Undisputed Context of events ……………………………………………………….14 Demilitarization of the enclave ……………………………………………………...18 Strength of the 28th Division and its constant arming ………………………………19 The Prosecution’s theory as to the mode of liability via Joint Criminal Enterprise fails to establish with any certainty that Beara was a participant in the purported JCE at any time.………………………………………………………………………………….24 Ljubisa Beara’s whereabouts during the relevant events …………………………...25 The Defense witnesses gave credible evidence of Beara’s whereabouts in the relevant period which were corroborated by independent documents ……………………….25 The Prosecution evidence as to the whereabouts of Ljubisa Beara at the relevant times are erroneous, inaccurate, vague, inconsistent, and incomplete thus it should be rejected ………………………………………………………………………………35 The Prosecution witnesses, without substantiation and corroboration, were influenced by persons culpable for the crimes and thus had the motive to distort and fabricate the facts ………………………………………………………………………………….36 No weight should be given to Miroslav Deronjic’s 92 quater statement ……………40 The local authorities in Bratunac were motivated due to their own criminal culpability and mischaracterized, distorted and manipulated the evidence in order to avoid being indicted …………………………………………………………………………...….43 5 IT-05-88-T 38365 The Prosecution evidence, when scrutinized closely, reveals that certain witnesses were influenced by others and thus erroneously shaped their testimony against Ljubisa Beara …………………………………………………………………………………44 The evidence clearly establishes that the local civilian authorities were involved in the crimes committed and shifted their responsibility to avoid being indicted ……….…47 Beara’s alleged whereabouts on 14 July 1995…………………………………….…53 Beara’s alleged whereabouts after15 july 1995……………………………………...68 Identification by Prosecution witnesses is biased and should be given no weight ….71 ICTY Jurisprudence on identification……………………………………….……….79 The Intercept evidence from the BiH Army purportedly captured is inherently flawed and should be given no weight………………………………………………………80 Voice recognition of participants…………………………………………….………87 Analysis of intercept conversations made by Prosecution’s experts………………...93 The linguistic evidence adduced at the Trial clearly establishes that Ljubisa Beara was not a participant in the intercepted conversations as alleged by the Prosecution…....99 The Prosecution claims that intercepts which references “Ljubo” may be attributed to Beara are misplaced………………………………………………………………...101 The Prosecution’s interpretation of the meaning of specific words in the purported intercepts ignores other reasonable inference and is simply wrong………………..103 The Prosecution’s reliance on certain documentary evidence is unreasonable given its lack of authenticity………………………………………………………………….105 The Prosecution failed to establish that Ljubisa Beara significantly participated or substantially contributed in the alleged JCE………………………………………..110 The evidence adduced during Trial supports a finding that Ljubisa Beara did not participate or contribute in either JCE alleged by the Prosecution…………………111 Ljubisa Beara did not participate in the JCE to forcibly transfer the Muslim population from Srebrenica and therefore cannot be found guilty under Article 7/1 of the Statute…………………………………………………………………………..112 MUP involvement in forcible transfer……………………………………………...117 Relation between the civilian MUP and security organs of the VRS and more specifically Ljubisa Beara………………………………………………………….118 6 IT-05-88-T 38364 Ljubisa Beara did not participate in the JCE to forcibly transfer the Muslim population from Zepa and therefore cannot be found guilty under Article 7/1 of the Statute……………………………………………………………………………...119 The Prosecution failed to meet its burden of proof with respect to the subjective elements of JCE……………………………………………………………….……121 Ljubisa Beara did not participated in the JCE to kill able bodied men from Srebrenica …………………………………………………………………….……123 Ljubisa Beara was not present or involved in specific executions…………..……...123 Jadar River…………………………………………………………………………123 Cerska and Kravica warehouse………………………………………………....124 Sandici………………………………………………………………………………124 Orahovac…………………………………………………………….…..…………125 Rocevic……………………………………………………………….……………..127 Petkovci School and Dam near Petkovci…………………………......………..128 Kula School………………………………………………………….………….....129 Branjevo farm and Pilica cultural hall…………………………….…………..131 Ljubisa Beara did not have the specific intent required for the crime of genocide…132 Ljubisa Beara did not have contacts with other alleged members of the JCE……...136 There was no separate chain of command or responsibility by the security branch for the prisoners of war………………………………………………………………...136 The authority over the military police rests with the Commander…………………………………………………………………………143 Joint Criminal Enterprise III……………………………………………………..…146 The Prosecution failed to prove Ljubisa Beara’s responsibility pursuant to JCE III…………………………………………………………………………………...147 Aiding and Abetting………………………………………………………………...149 The evidence adduced at Trial clearly established that Beara did not carry out acts which consisted of practical assistance, encouragement or moral support which had a substantial effect upon the commission of crimes by others……………………….149 The evidence adduced at Trial clearly established that Beara was not aware that the crimes were being committed………………………………………….……………150 The Prosecution failed to prove its allegations in Count 1 Genocide and Count 2 Complicity to Commit Genocide……………………………….…………………..151 The Prosecution failed to meet its burden of proof with respect to the actual number of Muslim men that were killed…………………………………..………………...153 7 IT-05-88-T 38363 Number of missing persons……………………………………………………….154 DNA identification…………………………………………………………………158 Minimal Number of Individuals……………………………….………...….163 The number of killed with purportedly genocidal intent is over inflated because the very large number of Muslim men killed during legitimate combat engagement are included in the overall number of killed……………………………………………168