IT-03-69-A 1269 A1269 - A1162 09 December 2013 MC

THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA Case No. IT-03-69-A

IN THE APPEALS CHAMBER

Before: Judge Theodor Meron, Presiding Judge Carmel Agius Judge Fausto Pocar Judge Liu Daqun Judge Khalida Rachid Khan

Registrar: Mr. John Hocking

Date: 9 December 2013

PROSECUTOR v. JOVICA STANISIC FRANKO SIMATOVIC

PUBLIC REDACTED VERSION SIMATOVIC DEFENCE RESPONSE TO PROSECUTION APPEAL BRIEF

The Office of the Prosecutor: Defence Counsel for Mr. Stanisic Mr. Peter Kremer QC Mr. Wayne Jordash Mr. Mathias Marcussen Mr. Scott Martin

Defence Counsel for Mr. Simatovic Mr. Mihajlo Bakrac Mr. Vladmir Petrovic Case No. IT-03-69-A 1 9 December 2013 PUBLIC REDACTED VERSION 1268

TABLE OF CONTENTS

INTRODUCTION 3 SPECIAL REMARKS 5 GROUND ONE OF THE PROSECUTION APPEAL BRIEF 7 Sub-Ground 1(A) 7 Sub-Ground 1(B) 13 Section D 18 i. Simatovic’s Position 20 ii. SAO Krajina 22 iii. Captain Dragan 26 iv. The Unit 28 v. Role of JNA 30 vi. Lovinac 33 vii. BiH 36 viii. Bosanski Samac and Doboj 38 ix. Pauk 43 x. Operation Udar 45 xi. Other References in Section D 49 xii. Conclusion with Regard to Section D 52 Sub-Ground 1(C) 53 Conclusion on Ground One 65 GROUND TWO OF THE PROSECTUION APPEAL BRIEF 68 Sub-Ground 2(A) 69 Sub-Ground 2(B) 81 Conclusion on Ground Two 98 GROUND THREE OF THE PROSECTUION APPEAL BRIEF 99 i. Stanisic and Simatovic significantly contributed to the implementation 99 of the common criminal purpose in Sanski Most in 1995 ii. Stanisic and Simatovic aided and abetted crimes in Sanski Most 103 iii. Conclusion on Ground Three 105 FINAL CONCLUSION 106

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INTRODUCTION

1. On 30 May 2013, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia found Franko Simatović not guilty on all counts in the Indictment and delivered a judgement of acquittal.

2. On 28 June 2013, the Prosecution filed its Prosecution Notice of Appeal, advancing the following three grounds of appeal:

• Ground One, alleging that Simatović shared the intent for the JCE liability; • Ground Two, alleging that Simatović aided and abetted the crimes in Bosanski Šamac, Doboj and in the SAO Krajina; • Ground Three, alleging that Simatović is responsible for the crimes in the SAO SBWS, Bijeljina, Zvornik and Sanski Most.

3. On 11 September 2013, the Prosecution filed its Prosecution Appeal Brief with detailed arguments of the foregoing grounds of appeal.

4. The Defence Counsel for Franko Simatović finds the Prosecution Appeal Brief to be unfounded in its entirety. The Defence denies all of the allegations contained in the Prosecution Appeal Brief and maintains that the Trial Chamber’s decision to acquit Simatović on all counts in the Indictment is well-founded and lawful. The Defence contends that any other finding on the role, position and responsibility of Franko Simatović for the events he was charged with in the Indictment would have been baseless, unlawful, and in violation of the jurisprudence of this International Tribunal and that of international criminal justice in general.

5. With respect to its first ground of appeal, the Prosecution requests that the Appeals Chamber overturn the Judgement of acquittal; apply the correct legal standard, and convict Simatović under Article 7(1) of the Statute based on his

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participation in and contribution to the JCE. Alternatively, the Prosecution requests that the Appeals Chamber exercise its discretion to remand the case to a bench of the Tribunal to apply the correct legal standard, and to determine the liability of Simatović as alleged in the Indictment.

6. In relation to the second ground of appeal, the Prosecution requests that the Appeals Chamber overturn the acquittal; find that through his acts and omissions Simatović substantially contributed to the commission of the crimes; find that Simatović knew about the commission of the crimes, i.e., that he knew that his acts and omissions would assist the commission of the crimes; find, if required, that Simatović specifically directed acts and omissions towards the commission of the crimes, and to sentence Simatović for aiding and abetting the said crimes. The Prosecution requests that, alternatively, the Appeals Chamber should exercise its discretion to remand the case to a bench of the Tribunal to apply the correct legal standard and to determine the liability of Simatović as alleged in the Indictment.

7. With respect to the third ground of appeal, the Prosecution requests that Simatović be found guilty for his significant contribution to the implementation of the common criminal purpose in Sanski Most through the SDG, and that he be convicted under Article 7(1) for his alleged participation in the JCE, and under Article 7(3) for his alleged role in aiding and abetting the crimes committed in Sanski Most.

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SPECIAL REMARKS

8. At this point, the Defence wishes to express its full consent with the final conclusion of the Trial Chamber to the effect that Franko Simatović is not guilty of the crimes he is charged with in the Indictment and that the Defence fully agrees with the Trial Chamber’s arguments of the Judgement acquitting Franko Simatović on all counts of the Indictment. The Defence, however, also wishes to point out that it there is a number of findings made by the Trial Chamber on certain individual elements of criminal responsibility of the accused the Defence that it disagrees with, and that it would have fiercely contested these, had Franko Simatović been convicted.

9. At this point, we will mention only some of the Trial Chamber’s findings the Defence would have contested, without any intention of addressing all of them in an exhaustive and conclusive manner: for instance, the Defence would have disputed numerous findings the Trial Chamber expressed in Part 3 of the Judgement – Crimes, numerous findings the Trial Chamber stated in Part 4 - Legal Findings on Crimes; the Defence would have most certainly contested also numerous conclusions in Part 6 of the Judgement referring to Simatović’s responsibility - for instance the findings relating to the Unit, to the SDG, the Scorpions, the SAO Krajina police and SAO Krajina TO, to other Serb forces, and to the findings pertaining to some activities Simatović allegedly undertook or participated in.

10. The Defence, however, is neither in a position to contest any of the foregoing findings nor, indeed, is there any need for it. Still, at this point, the Defence needs to emphasize that the Prosecution, under Ground One of its Appeal Brief, contests only the findings relating to Simatović’s mens rea and the wording of the Judgement (paras. 2340-2354 and 2362-2363), while in connection with Ground Two it objects only to the findings in para. 1264 and paras. 2360-2361. In Ground Three of its Appeal Brief, in relation to Simatović, the Prosecution only contests the specific finding related to Sanski

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Most. Evidently, the Prosecution finds all other findings of the Trial Chamber, detailed on 851 pages and within 2363 paragraphs of its Judgement, to be beyond dispute.

11. The Defence points out that in its opinion the Appeals Chamber should dismiss the Prosecution’s Appeal in its entirety, for the reasons specified in this Brief.

12. The Defence wishes also to caution that, should the Appeals Chamber apply a different legal standard with respect to intent for the JCE, in other words, if it should adopt the Prosecution’s standing on specific direction as a requirement for aiding and abetting, and overturn the acquittal and convict the accused, Franko Simatović may find himself in a position where his right to a fair trial and to a two-instance procedure would be se substantially limited and in some aspects completely denied.

13. Should the Appeals Chamber find the Prosecution’s Appeal to be grounded, the only decision the Appeals Chamber could render would be to return the case to the a special bench of the Tribunal for reconsideration with the application of the appropriate legal standard. This would be the only way to protect the accused Simatović’s right to a fair trial and to a two-instance procedure because only then, in case the new judgement were a convicting one, would Simatović have the possibility of filing an appeal against the findings he believes to be unfounded.

14. As already mentioned, even the Prosecution alternatively requests, for grounds one and two, that the Appeals Chamber appoint a special bench of the Tribunal, which would apply the legal standard the Prosecution believes to be correct.

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GROUND ONE OF THE PROSECUTION APPEAL BRIEF

15. In its Prosecution Notice of Appeal, the Prosecutor contends that the Trial Chamber committed an error of law and/or an error of fact in failing to find that Stanišić and Simatović shared the intent to further the common criminal purpose of the JCE.2

16. According to the Prosecutor, the Trial Chamber committed the aforesaid error by failing to adjudicate and/or to provide a reasoned opinion on essential elements of JCE liability3, by applying an erroneous legal standard to the evidence4 and erring in fact by finding that Simatovic did not share the common criminal purpose of the JCE.5

Sub-Ground 1(A)

17. In its Appeal the Prosecution states that the Trial Chamber acquitted Simatović of responsibility as a JCE member by finding that he did not share the intent to further common criminal purpose and alleges that it was done without adjudicating or providing reasoned opinion on whether the common criminal purpose existed and whether Simatović participated in it. 6

18. The prosecution also alleges that failure on the part of the Trial Chamber to adjudicate on essential and precursor elements of JCE liability before deciding the element of shared intent is a legal error invalidating the Judgement. 7

19. First of all, the Defence points out that in its allegations the Prosecution wishes to introduce some kind of a hierarchy of the elements necessary for

2 Prosecution Notice of Appeal para. 3 3 ibid. Sub-Ground 1 (A) 4 ibid. Sub-Ground 1(B) 5 ibid. Sub-Ground 1 (C) 6 Prosecution Appeal Brief para. 19 7 ibid. Case No. IT-03-69-A 7 9 December 2013 PUBLIC REDACTED VERSION 1262

establishing responsibility for the JCE. Namely, the Prosecution insists that the Trial Chamber should have established first the existence of physical elements of a joint criminal enterprise and only then whether mental elements thereof also existed or not. This is clearly inferred from the Prosecution’s standing expressed in paras. 19-21 of the Prosecution Appeal Brief. The Prosecution, however, fails to point to a clear legal source it based such a standing on, referring only to the Krajišnik Appeal Judgement which states that the JCE members “had a common state of mind, namely the state of mind that statutory crime(s) forming part of the objective should be carried out”8. The Defence notes that the cited paragraph of the Krajišnik Appeal Judgement addresses the mens rea for the first form of JCE, and nowhere does it state that the objective is a predicate determination to inferring shared intent, as the Prosecution interprets the cited paragraph. The Prosecution offers no other legal source for its theory on the hierarchy or sequence of the JCE elements.

20. In its response to this appeal argument offered by the Prosecution, the Defence points out that legal practice does not recognize any sequence in establishing the elements of a JCE. Based on its own diligent analysis of the mental elements of the JCE 9, which will be further discussed elsewhere in this Brief, the Trial Chamber finds that in the case of Simatović, no necessary conditions exist to conclude that Simatović shared intent with respect to the JCE.

21. The Defence, once again, emphasizes the fact that the Trial Chamber in its exhaustive analysis finds there is no mental element of the JCE that could be attributed to Simatović. If in fact the Trial Chamber already found that intent required for a JCE did not exist, there is no legal reason whatsoever why that same Trial Chamber should keep trying to establish whether or not all or only some of the physical elements of a JCE existed. Clearly, a judgement of

8 ibid para. 20, Krajišnik AJ para. 200; the Defence notes that the Prosecutor specifically quoted the word “objective” in italic, although in the original text cited by the Prosecutor the word “objective” is not specifically pointed out in any way; 9 Judgement paras. 2337-2354 Case No. IT-03-69-A 8 9 December 2013 PUBLIC REDACTED VERSION 1261

acquittal is the only possible outcome in the situation of absence of the mental element.

22. The Defence notes that there is no reason at all why this Trial Chamber should make any effort towards establishing the existence of a JCE formed to commit the crimes alleged in the Indictment. Indeed, the Trial Chamber was under no obligation to establish whether there had been a common purpose among other persons not charged under this Indictment, the content of such a common purpose, who participated in it an when, or any other things as demanded by the Prosecution. 10

23. The Defence also notes, however, that the Trial Chamber did consider all the elements of the JCE listed in the Indictment as obvious from numerous paragraphs in the Judgement.

24. Thus, for instance, the Prosecution charges Simatović with participating in the JCE by providing channels of communication.11 The Trial Chamber tackles the issue of channels of communication on seven pages 12 . Regarding Simatović, the Trial Chamber finds that although he made certain contacts with other alleged members of the JCE, the Trial Chamber cannot conclude that he facilitated contacts because there is evidence of direct contacts among those other members. 13 Further to the point, and after a detailed analysis, the Trial Chamber finds also that as regards Simatović, based on his activities in gathering intelligence from various sources, it is unable to conclude that Simatović acted even as a channel of communication. 14

25. Elsewhere in the Judgement, the Trial Chamber analyzes all the elements alleged in the Indictment. In Part 3 of the Judgement – Crimes – the Trial

10 Prosecution Appeal Brief para. 21 11 Third Amended Indictment para. 15. a. 12 Judgement paras. 2290-2304 13 Judgement para. 2302-2303 14 Judgement para. 2301, 2304 Case No. IT-03-69-A 9 9 December 2013 PUBLIC REDACTED VERSION 1260

Chamber considers the entire base of the crimes and offers its findings; in Part 6 it addresses all armed formations brought into connection with the Accused and the Accused’s attitude towards those formations. Obviously, even the hundreds of pages worth of analysis undertaken by the Trial Chamber failed to result in a conclusion that there had been a Joint Criminal Enterprise the accused Stanišić and Simatović participated in. Indeed, all the elements the Prosecutor pointed to in the Indictment and later in the Final Trial Brief were addressed but the analysis thereof has failed to arrive at a conclusion that there had been a JCE Stanišić and Simatović were part of. All other possible conclusions are out of reach of this Trial Chamber and it does not have the obligation to establish its position with regard to them.

26. The Prosecution insists that no other JCE case has been decided without findings on whether a common purpose existed. 15 To corroborate this assertion, the Prosecution lists several convicting judgements where the accused were found guilty of participation in the JCE. It is only logical that in such judgements the Trial and Appeals Chambers would make conclusions on the existence of a common purpose, given the fact that this is a prerequisite for passing a convicting judgement. As one of the sources, the Prosecution, however, lists the Boškovski Trial Judgement16, more specifically, paragraphs 580 through 585 of the Judgement, where the Trial Chamber actually discusses whether one of the accused persons shared the intent, and finds that he did not. However, from this part of the Judgement one cannot infer that the Trial Chamber in that case makes a conclusion about the existence of a JCE.

27. The Prosecution further contends that the Trial Chamber erred by failing to analyze some important aspects of the JCE such as the historical and political goals of creating a “Greater Serbia”.17 It is not clear, however, why the Trial Chamber should have analyzed the issue of “Greater Serbia” in relation to Simatović who, at the time relevant for the Indictment, was [REDACTED]

15 Prosecution Appeal Brief para. 22. 16 ibid. para. 22 footnote 10 17 ibid para. 24 Case No. IT-03-69-A 10 9 December 2013 PUBLIC REDACTED VERSION 1259

Serbian DB, and as such incapable of asserting any influence on the political and historical goals of either political or military leadership. 18

28. The Prosecution admits, though, that the Trial Chamber is under no obligation to present its views on each and every piece of evidence in the case files, as already widely adopted in the Tribunal’s case law. 19 Still, the Prosecution objects in particular to the fact that exhibit [REDACTED] was not taken into account, which is the plea agreement of [REDACTED]. 20 The Trial Chamber in fact quotes [REDACTED] in several sections of the Judgement, which is in line with the Trial Chamber’s discretions and jurisprudence. The Prosecution here, however, reproaches the Trial Chamber for not using the document which, in the first paragraph states that “the purpose of this factual statement is to demonstrate that there exists an adequate factual basis for [REDACTED] pleas of guilty” 21 Elsewhere in this document, [REDACTED] presents his legal conclusions to the effect that the JCE existed, that he knows who the members of the JCE were and what their intention was. 22 So, the Prosecution regrets that the Trial Chamber failed to rely on the document, more specifically on paragraphs 30 and 31 thereof, where [REDACTED] and the Prosecution “negotiate” specifying which criminal acts were committed by other persons, how they committed the crimes and in what way these other persons are responsible for those acts. Such an insistence on this document in particular as the “key evidence” in the Prosecution Appeal Brief is a clear indication of the complete absence of any documents or testimonies which might have convinced the Trial Chamber, by their probative force, that a JCE that Simatović had been part of, really existed.

29. The Prosecution expresses its dissatisfaction with the choice of evidence made by the Trial Chamber and even compiles a list of exhibits and adjudicated

18 Simatović’s position in the Service is specified in Paras. 1283-1286 of the Judgemnt 19 Prosecution Appeal Brief para. 25, Perišić AJ para. 92 20 Prosecution Appeal Brief para. 25 21 [REDACTED] 22 ibid para. 31 Case No. IT-03-69-A 11 9 December 2013 PUBLIC REDACTED VERSION 1258

facts the Prosecution considers “clearly relevant” but neglected by the Trial Chamber. 23 Thus, in its Annex B, the Prosecution argues that the Trial Chamber disregarded 45 exhibits which the prosecution lists exhaustively, calling them “clearly relevant”. The Defence must point out that those 45 allegedly disregarded exhibits are just an insignificant portion of the Prosecution’s own 3,226 exhibits on the trial record. As already mentioned, “the Appeals Chamber acknowledges that a trial chamber is entitled to rely on the evidence it finds most convincing”.24 Also, “a trial chamber need not refer to the testimony of every witness or every piece of evidence on the trial record, as long as there is no indication that the trial chamber completely disregarded any particular piece of evidence”25

30. Particularly interesting is the fact that the Prosecution objects that Trial Chamber neglected the clearly relevant evidence contained in the 45 Prosecution’s exhibits given in Annex B. However, out of these 45 very important exhibits, 13 are not quoted in the Prosecution Final Trial Brief at all.26 These pieces of evidence are not even mentioned in this 112,989-word Brief. All of this clearly indicates that the Prosecution actually wishes to use its appeal to present new arguments based on the evidence the Prosecution never referred to before the Trial Chamber.

31. The Defence therefore concludes that the Appeals Chamber should dismiss Sub-Ground 1 (A) as unfounded. The Trial Chamber found that Simatović did not possess the mental element required for participation in the JCE, and this finding is explained in detail. The Trial Chamber also analyzed all the other elements that the Prosecution based its theory on about the existence of a JCE Simatović had participated in, however, the Trial Chamber was under no obligation to specifically state its opinion on the existence or non-existence of

23 Prosecution Appeal Brief para. 27; Annex B 24 Perisic AJ para.92 25 Limaj AJ para 86 26 P634, P635, P647, P648, P649, P650, P663, P668, P679, P680, P682, P1115, P1239 Case No. IT-03-69-A 12 9 December 2013 PUBLIC REDACTED VERSION 1257

each and every element of the JCE where it decidedly concluded that there is no mental element requisite for responsibility.

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Sub-Ground 1(B)

32. In its Appeal, the Prosecution argues that the Trial Chamber misapplied the relevant legal standards for assessing evidence, and that this is most evident in the section discussing the mens rea of the accused. The Prosecution particularly reproaches the Trial Chamber for considering evidence piecemeal rather than reaching conclusions based on the totality of evidence, as the Prosecution argues. The Prosecution then concludes that the assessment of evidence of the mens rea of the accused is tainted by the Trial Chamber’s legal error and occasions a miscarriage of justice. 27

33. In addition, the Prosecution also insists that a Trial Chamber must a) consider all evidence presented to it, b) assess and weight evidence in its totality and c) apply the standard of proof beyond reasonable doubt to the totality of the evidence. 28

34. The Defence finds the allegations presented by the Prosecution under this sub- ground to be completely baseless.

35. First of all, the Prosecution objects that the Trial Chamber failed to consider all the evidence presented to it. Once again, the Defence states that a trial chamber does not have to state its opinion on each and every individual piece of evidence or argument. At this point, however, the Defence also wishes to reiterate that although this Trial Chamber was under no obligation to do so, it did, in fact, state its position on almost every single Prosecution’s argument presented with respect to the mens rea.

a. In its Final Trial Brief, the Prosecution composed a separate part titled “The Accused shared the intent to further the JCE’s Common Criminal

27 Prosecution Appeal Brief para. 29 28 ibid. para. 31 Case No. IT-03-69-A 14 9 December 2013 PUBLIC REDACTED VERSION 1255

Purpose through the Charged Crimes”. 29 Simatović’s intent is addressed in the part titled “Simatović demonstrated his intent through his own work and actions”. 30 There, the Prosecution insists on Simatović’s alleged participation in the attack on Lovinac. 31 The Trial Chamber closely analyzes Simatović’s role in connection with Lovinac, taking into account all the allegations specified by the Prosecution. 32In the Final Trial Brief the Prosecution lists as the evidence proving that Simatović shared intent, his alleged participation in the Vukovar operation. 33 These Prosecution’s allegations are also given close attention by the Trial Chamber. 34 The Prosecution mentions also Simatović’s alleged connection with Operation Udar35 which was also subjected to a detailed analysis by the Trial Chamber presented on more than two pages. 36

b. In addition to the Prosecution’s arguments which supposedly point to Simatović’s intent, the Trial Chamber also analyses other situations where Simatović is associated with certain military operations.37 The final conclusion soundly based on this analysis is that Simatović had no mens rea requisite for a JCE.

c. The Defense finds that the Trial Chamber considered all the evidence presented by the Prosecution allegedly pointing to Simatović’s intent as well as all other evidence of potential significance for establishing such intent and made its conclusion accordingly.

29 Prosecution Final Trial Brief p. 287 30 ibid. p. 291, paras. 696-700 31 ibid. para. 696 32 Judgement paras. 2340-2342 33 Prosecution Final Trial Brief para. 697 34 Judgement paras. 2343-2345 35 Prosecution Final Trial Brief para. 698 36 Judgement para. 2346-2351 37 ibid. paras. 2352-2353 Case No. IT-03-69-A 15 9 December 2013 PUBLIC REDACTED VERSION 1254

36. The Prosecution claims that the Trial Chamber should have considered all of the evidence in its totality. When it comes to Simatović’s mens rea the trial Chamber evidently considered each individual piece of evidence presented by both sides, and reviewed other evidence, and rendered its final decision. It is stated in the Judgement that: “The Trial Chamber will review the evidence on these specific actions and words uttered, and then analyze what can be inferred with regard to Simatović’s intent from his actions (which are dealt with in detail in chapters 6.3, 6.4, 6.5 , 6.6, 6.7, and 6.8).38 The Trial Chamber performs this analysis by referring to the part of the Judgement dealing with Stanišić’s mens rea with respect to the Unit.39 In the part of the Judgement dedicated to the connection between Stanišić and the Unit, the Trial Chamber closely examines whether intent can be inferred from the activities taken by Stanišić and the finding is that the Trial Chamber cannot conclude that the only reasonable inference form the evidence on Stanišić’s actions is that he shared the intent to further the common criminal purpose. 40 Therefore, one may freely state that all the evidence from which conclusions on Simatović’s mens rea could be inferred, either directly or indirectly, was analyzed and its weight assessed. The allegation that the evidence on mens rea was considered “in isolation” is completely unfounded. The Defence accepts that the ultimate weight to be attached to each piece of evidence cannot be determined in isolation. 41 However, in its analysis, the Trial Chamber actually uses the same logical and methodological approach to all Simatović’s activities only to finally conclude that none of those activities, whether viewed in isolation or in their entirety, meet the requisite standard for a convicting judgement.

37. Finally, none of the Prosecution’s arguments stated in the Appeal point to a conclusion that the standard of proof beyond reasonable doubt to the totality of evidence was not applied by the Trial Chamber as will be discussed in more detail further on in this Brief.

38 ibid para. 2338 39 ibid para. 2351 40 ibid para. 2336 41 Martić AJ para. 233 Case No. IT-03-69-A 16 9 December 2013 PUBLIC REDACTED VERSION 1253

38. Regarding the argumentation presented under sub-ground 1(B), the first reaction on the part of the Defence would be that none of the listed arguments refers to Simatović. Namely, the Prosecution argues that the Trial Chamber in the part dedicated to Simatović explicitly draws on the evidence applying to Stanišić, supplemented by additional evidence specific to Simatović. 42 Although it is true that in some aspects the Trial Chamber under 6.10 refers to 6.9 43 , the entire argumentation presented by the Prosecution pertains exclusively to Stanišić. 44 Intercepts between Stanišić and [REDACTED], the meeting in Belgrade held on 13-14 December 1993, and Stanišić’s visit to Dalj have nothing to do with Simatović.

39. The Prosecution objects that Stanišić’s words analyzed in paras. 35 through 38 of the Appeal are not brought into connection with Stanišić’s actions in relation to the Unit, SAO Krajina Police, SDG and Scorpions. 45 The Simatović Defence notes that this part of the Prosecution Appeal Brief, in the contest of the presented argumentation, does not refer to Simatović at all.

40. The Defence, however, wishes to draw the Appeals Chamber’s attention to the groundlessness of the Prosecution’s allegations that the Trial Chamber considered even discrete parts of conduct in isolation from each other. 46 The Prosecution fails to provide any arguments at all for this allegation – one can only wonder how the Prosecution arrived at the conclusion that all parts of the conduct were considered in isolation from each other. The Prosecution also fails to state which parts and what connection between those parts escaped the Trial Chamber’s attention. The Prosecution simply contests the final conclusion and tries to impose its own interpretation of the evidence.

42 Prosecution Appeal Brief para. 34 43 Judgement para. 2351 44 Prosecution Appeal Brief para. 35-43 45 ibid. para 39 46 ibid para. 40 Case No. IT-03-69-A 17 9 December 2013 PUBLIC REDACTED VERSION 1252

41. The Prosecutor’s allegations listed in paragraphs 41 to 43 boil down to a mere expression of disagreement with the Trial Chamber’s interpretation of the evidence and his desire to impose another interpretation the Prosecutor believes to be the right one. In paragraph 41, the Prosecutor complains about a piecemeal approach and the alleged failure on the part of the Trial Chamber to treat the various acts of the accused as contributions to a single common criminal purpose rather than discrete contributions to separate crimes. Here, the Prosecutor simply tries to present his own different interpretation of evidence as fragmentariness in the Trial Chamber’s approach. However, the Trial Chamber did in fact diligently analyze individual events in search of a common denominator which could qualify the events for a common purpose. The Trial Chamber simply could not find such a denominator, that different quality it was looking for, but that does not mean that the Trial Chamber applied an erroneous standard as alleged by the Prosecution. This only means that the Trial Chamber’s assessment of the evidence is different than that suggested by the Prosecutor and that he now tries to present his disagreement with the Trial Chamber’s conclusions as alleged application of an erroneous legal standard.

42. Paragraph 42 of the Prosecution Appeal Brief is, indeed, nothing more than a mere list of the Prosecution’s own views on the events stripped of any attempt on the part of the Prosecution to point to any concrete errors possibly made by the Trial Chamber.

43. The Defence is fully convinced that the Trial Chamber applied the correct standard in assessing Simatović’s mens rea. The Prosecution’s objections are not directed to the issue of standard but rather towards disagreement with conclusions. After all, in sub-ground 1(B) the Prosecution fails to present even one single argument referring to Simatović.

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Section D

44. As part of Section D of Ground One of the Appeal Brief, the Prosecution seeks to assist the Appeals Chamber in correcting the error of law by recalling the evidence presented to the Chamber. Likewise, the Prosecutor states that “where appropriate”, references are made to conclusions on the evidence of the Trial Chamber itself.47

45. First, the Defence holds that the Prosecution, in presenting statements in Section D of its Appeals Brief, grossly oversteps the boundaries of its Notice of Appeal. Nowhere in the Notice of Appeal is there basis for presenting the statements contained under Section D. Ground One of the Prosecution’s Appeal Brief is that the Trial Chamber erred in law and/or fact in failing to find that accused shared the intent for joint criminal enterprise liability. Therefore, the first grounds for appeal are not in relation exclusively to the mental element of culpability of the accused. Under Section D, however, the Prosecution presents its own view of the conclusions of the Trial Chamber and its subsequent and additional interpretation of the evidence in the list of cases. Therefore, the Defence holds that all statements contained under Section D should be summarily dismissed.

46. Section D should also be summarily dismissed because the Prosecution once again presents its case without indication of where and in what the error of the Trial Chamber lies. The Defence emphasizes that this is a situation where the Prosecution wishes to substitute their own evaluation of the evidence for that of the Trial Chamber, which is sufficient for dismissing this section according to the relevant case law.48

47 Prosecution Appeal Brief para. 44 48 Strugar AJ para. 21 Case No. IT-03-69-A 19 9 December 2013 PUBLIC REDACTED VERSION 1250

47. The Prosecution states that Section D is to assist the Appeals Chamber in rectifying an error of law.49 Section D represents a mix of the conclusions of the Trial Chamber and a number of exhibits found in the case files, wherein, however, the conclusions of the Trial Chamber dominate the explanation. Although the Prosecution states that on recalling evidence presented to the Trial Chamber with certain adequate conclusions from the Judgement, Section D is in essence a recapitulation of the Judgement, and in fact, of those parts of the Judgement in favour of the Prosecution’s thesis. The Defence emphasizes that in nearly all cases these are conclusion of the Trial Chamber the Defence does not accept, and would have been part of a defence appeal, had the Judgement been that of conviction. Should the Appeals Chamber accept the statements under Section D, and based on those statements issue a Judgement of conviction, the accused would be faced with a situation of being sentenced based on conclusions from a first-instance procedure they were unable to refute under the procedure before the Appeals Chamber.

48. Likewise, the Defence emphasizes that the methodology provided under Section D is contrary to the rights and obligations of the Appeals Chamber in the procedure for reviewing the Judgement of the Trial Chamber. If there is an error of law, the Appeals Chamber will correct the error, articulate the correct legal standard and apply this correct legal standard to the evidence on record.50 Therefore, the Defence concludes that the potential correct legal standard may be applied to the evidence on record, but not to a selection of factual conclusions of the Trial Chamber that are in sharp discrepancy with the position of the Defence, and the re-examination of which the Defence was unable to request during the appeals procedure.

49. Section D is a recapitulation of the Prosecution’s case whereby the Prosecution oversteps its Notice of Appeal. The Defence cannot present its case again in this Response to the Prosecution Appeal Brief, nor can they

49 ibid para. 44 50 Strugar AJ para. 12, Perisic AJ para. 9 Case No. IT-03-69-A 20 9 December 2013 PUBLIC REDACTED VERSION 1249

analyse those conclusions of the Trial Chamber they disagree with, since it is simply not in line with the expected contents of the response to the appeal.

50. For reasons of caution, however, herein the Defence will present some of its positions as a response to the allegations contained in Section D.

i. Simatovic’s Position

51. The Prosecution claims that Simatović was Stanišić’s right-hand man, and that Stanišić repeatedly promoted him.51 At the time when the period of relevance for the charges begins, Simatović was [REDACTED] as part of the SDB Administration in Belgrade. 52 Simatović’s role was limited solely to tasks regarding the [REDACTED] he was [REDACTED], as can be quite clearly determined by analysing the Rules of the Job Specifications on the State Security Service of the Republic of Serbia MUP.53 While he held this position, Simatović had no leading role in regards to the service itself. This position that Simatović held until May 1992 is at the very bottom of the hierarchy within the Serbian DB. The Defence hereby emphasizes that Simatović was, between December 1990 and May 1992, a subordinate to the [REDACTED]. 54 Therefore, at the time of relevance for this case, Simatović was six degrees below Stanišić. The conclusion that someone can be the right-hand man of the head of the service and yet be located six hierarchical levels below them is impossible.

52. From May 1992, Simatović held the position of [REDACTED]. This is a [REDACTED] level position in the service, and Simatović, as [REDACTED], could not run this administration, but was performing tasks assigned to him by the [REDACTED]. Even as a [REDACTED], Simatović was not even a

51 Prosecution Appeal Brief para. 50 52 [REDACTED] 53 P2366, D832 54 [REDACTED], [REDACTED] Case No. IT-03-69-A 21 9 December 2013 PUBLIC REDACTED VERSION 1248

member of the Collegium of SDB Chiefs. 55 At this time, Simatović had three levels of management between him and the level of chief of service.56

53. In May 1993, Simatović was appointed to the place of [REDACTED], as one of [REDACTED], fully in line with the normative acts of the service.57

54. Therefore, at one period Simatović was six levels below, at another three levels below, and during the third period he is one of [REDACTED], all this under circumstances where there are heads of administrations, assistants to the chief of service, and a deputy chief of service.

55. The Prosecution states that Simatović was repeatedly promoted. Simatović held the title of [REDACTED] since December 1990.58 He retained this title when he became the [REDACTED], as well as when he became a [REDACTED]. 59 Therefore, Simatović holds the same title, changes workplaces, but at no time does he reach the highest and most important positions - during the relevant time, Simatović was never appointed chief of administration, was never an assistant, and was never a deputy chief of service. Calling Simatović a right-hand man is incorrect, excessive and contrary to the presented evidence.

56. The relations of Simatović and Stanišić at all times during the relevant period were fully in line with the general regulations regulating the operation of this service. There is no evidence in the case files or conclusion in the Judgement indicating there was a special relation between Stanišić and Simatović not in accordance with the general rules of the service.

55 [REDACTED] 56 D795 para. 366 57 [REDACTED] 58 [REDACTED] 59 [REDACTED], [REDACTED] Case No. IT-03-69-A 22 9 December 2013 PUBLIC REDACTED VERSION 1247

57. Finally, the Trial Chamber concludes that in none of the functions he held at the Serbian DB was Simatović responsible for certain acts attributed generally to the Service.60 The conclusion the Prosecution is trying to imply whereby Simatović was the right-hand man to the chief of the service, i.e. someone who is his first assistant and first and most important associate, yet holding no responsibility for the activities of the service in general, is incredible.

ii. SAO Krajina

58. The Prosecution also contends under Section D that there was a parallel security structure initiated and supported by the accused.61 These claims are primarily based on the testimony of [REDACTED], particularly on the text of [REDACTED] plea bargain with the Prosecution, as addressed earlier. [REDACTED] developed a theory on a parallel structure existing in Krajina, and thus implied that Milošević and SDB had a parallel structure of its own, one he was excluded from. However, since August 1990, when [REDACTED], [REDACTED] was a close associate of Milosević and Jović. Between October 1990 and late 1991, [REDACTED] met Milosević at least 20 times.62 The close cooperation of [REDACTED] and Milošević was no obstacle for the Prosecution to conclude that [REDACTED] belonged to another, different legitimate structure. [REDACTED] agreement with the Prosecution and documents and testimonies arising from this agreement are heavily weighted by [REDACTED] attempts to establish the best possible position for himself in the process. [REDACTED] claims are for the most part isolated from the remaining evidence, other evidence does not corroborate [REDACTED] attempt to pin the blame on others, presenting himself as a person dedicated to peaceful solutions and negotiation.

59. The Prosecution states how the accused managed and organized the funding, arming and equipping of the SAO Krajina police. Mention is made of

60 Judgement para. 1286 61 Prosecution Appeal Brief para. 57-59 62 P1877 pages 1365-1368, D322 para.20. Case No. IT-03-69-A 23 9 December 2013 PUBLIC REDACTED VERSION 1246

Simatović bringing bags of cash to Martić.63 The Prosecution here invokes the Judgement, wherein it is stated that witness JF-039 did not see what was in the bags, but that at one time Martić told him it was cash, and thus the Chamber concluded that Simatović brought cash to Martić on two occasions.64 The Prosecution expects, based on an unsubstantiated and wrong conclusion by the Trial Chamber, a conclusion to be drawn here on some kind of financing for the SAO Krajina police with the alleged participation of Simatović. The Defence will hereby indicate just a few of the elementary contradictions – witness JF-039 never saw the money Simatović allegedly brought, but the Trial Chamber states Martić told him he received the money from Belgrade. However, how witness JF-039 concluded it was money is not stated by the Trial Chamber. Witness JF-039 not only did not see the money, but noticed that Martić was in a good mood, so he obviously got what he wanted.65 There are numerous other reasons whereby the Defence would be in a position to convincingly dispute both the conclusion of the Trial Chamber on financing, as well as the position of the Prosecution stated in the Appeal Brief that the Defence would have presented had the final Judgement of the Trial Chamber been unfavourable.

60. The Prosecution further claims that Simatović personally oversaw the delivery of arms and ammunition to Martić.66 Firstly, the Defence emphasizes that the paragraphs of the Judgement the Prosecution refers to do not state what evidence is used as a basis for this statement by the Trial Chamber. The Prosecution quotes part of the conclusion that does not indicate how these conclusions were made. This is understandable, since the Defence states that serious and credible evidence to confirm these claims is lacking. The statements on weapons deliveries are linked to the testimony of JF-039, which is blatantly implausible and inconsistent. Witness JF-039 once testified on the arrival of a special police unit from Serbia with weapons and that, fearing this

63 Prosecution Appeal Brief para. 59 64 Judgement para. 2153 65 P977 p.1987-1988 66 Judgement para. 2154, Prosecution Appeal Brief para. 59 Case No. IT-03-69-A 24 9 December 2013 PUBLIC REDACTED VERSION 1245

unit, all the policemen from the police station in Knin fled, thinking it was Croatian police. 67 On another occasion witness JF-039 testified that the special police unit had nothing to do with the event he described. 68 Confusion and fabrication of facts characterize the testimony of JF-039 in all the key elements of his testimony, as elaborated in detail by the Defence in their Final Trial Brief. 69 The Trial Chamber did not elaborate their non-acceptance of the key statements of the Defence regarding witness JF-039, also, for the most part, the conclusions of the Trial Chamber regarding witness JF-039 are wrong and contradictory, and these conclusions would certainly have presented a cause for detailed and elaborated appeals by the Defence, had a Judgement of conviction been issued. The Defence hereby merely indicates that, based on a single event described by JF-039, no reasonable trier of facts can conclude that Simatović personally oversaw the delivery of arms during a seven-month period, as was found by the Trial Chamber.

61. The Prosecution claims that Simatović provided communications equipment for SAO Krajina police during April 1991.70 The Prosecution refers to the conclusion of the Trial Chamber71 that is, however, completely unfounded. The Trial Chamber states that, based on statements by [REDACTED] and [REDACTED] the conclusion was made that Simatović provided communications equipment for the SAO Krajina Police. 72 However, the evidence and the analysis of the evidence undertaken by the Trial Chamber make no mention of this. The Chamber notes that [REDACTED] said that the Serbian MUP provided technical assistance.73 However, [REDACTED] never mentioned DB or Simatović there, instead naming the MUP of Serbia. [REDACTED], however, clearly states in his statement who provided the communications equipment – “in late April we received four Landrover

67 P978 para. 20 68 tt. 7293 69 Simatović Final Trial Brief paras. 204-219 70 Prosecution Appeal Brief para. 59 71 Judgement para. 2156 72 ibid. 73 Judgement para. 2135 Case No. IT-03-69-A 25 9 December 2013 PUBLIC REDACTED VERSION 1244

vehicles with [REDACTED] radio devices from Belgrade, from MUP Serbia… I took the vehicles over from [REDACTED], the communications man in MUP Serbia. He was accompanied by two fellows I only knew by their nicknames, [REDACTED] and [REDACTED], who trained me in operating the [REDACTED] stations.” 74 Therefore, there is no word of the equipment being supplied by Simatović, or the equipment being delivered by the DB of Serbia. The Trial Chamber evidently erred, and the Prosecution is building its own version of events on this erroneous conclusion, and submitting it for adoption to the Appeals Chamber.

62. The Prosecution further claims that the accused met with Martić in January 1991 to create a training camp in Golubić. 75 This was also based on a single conclusion from the Judgement. 76 The Prosecution in their brief, as well as the Trial Chamber in their Judgement, wrongly and incorrectly interpret the facts.

63. Witness JF-039, whose testimony this conclusion is based on, makes no mention of Martić agreeing with Simatović on anything regarding Golubić in January 1991. All that JF-039 says is that [REDACTED] Martić to a hotel in Belgrade, that Frenki came with another man, that the [REDACTED] him to the house of Martić’s uncle, and that in the morning Frenki came for Martić and JF-039 and drove them to the SDB building in Belgrade. When he dropped them off there, Martić went into a meeting in Bogdanović’s office, where a man later entered who, they told him, was Stanišić, while Simatović, immediately upon driving them there, went to his office. 77 Witness JF-039 states that Simatović was not present at the meeting78 the Trial Chamber is using to conclude that the opening of Golubić was agreed upon in Belgrade.

74 P2615 75 Prosecution Appeal Brief para. 61 76 Judgement paras. 1365, 1299 77 P978 para. 36, tt. 7356-7358 78 tt. 7357-7358 Case No. IT-03-69-A 26 9 December 2013 PUBLIC REDACTED VERSION 1243

64. The Prosecution further states that the camp was secretly financed and supplied by the accused and lists the paragraphs of the Judgement. 79 The Prosecution lists only those paragraphs of the Judgement containing the conclusions of the Trial Chamber. Paragraphs 1365 and 1366 of the Judgement are preceded by 78 paragraphs of explanation on 24 pages of the text of the Judgement, with several hundred references. The Prosecution, therefore, never even attempts to indicate the evidence the Appeals Chamber would have to reassess should they found that the wrong legal standard has been applied. The Prosecution only states the final conclusion, as if the Appeals Chamber can only and solely base their opinion on the final conclusions not containing references on evidence. If the Prosecution truly wished to assist the Appeals Chamber as stated in the introduction to Section D, then they should have indicated the evidence as well. If it had had the opportunity to appeal against the final Judgement, the Defence would have contested numerous conclusions of the Trial Chamber in this section, and indicated that no reasonable trier of facts would have made such conclusions.

65. The Prosecution, in the same paragraph of their Appeal Brief and in a single sentence, state the conclusions that were the subject of discussion among the parties across hundreds of pages and various documents. 80 Thus the Prosecution states the accused brokered the deployment of JCE sympathiser Captain Dragan to Golubić as an instructor and fighter. 81

iii. Captain Dragan

66. The Defence emphasizes that the conclusions on the arrival and role of Captain Dragan were made while ignoring a number of important exhibits, and the Defence will hereby, out of caution, only state a few.

79 Prosecution Appeal Brief para. 62, Judgement 1365-1366, 2197, 2327 80 Prosecution Appeal Brief para. 61 81 ibid. Case No. IT-03-69-A 27 9 December 2013 PUBLIC REDACTED VERSION 1242

67. In December 1990 Captain Dragan joined the [REDACTED] at the time and became the subject of [REDACTED] by the [REDACTED]. 82 Captain Dragan established contact with leaders in Knin in late 1990 and early 1991 with no participation by the Serbian DB or Simatović. The witness Lučić confirmed that the first meeting of Captain Dragan with Martić was held through the mediation of Lučić and Pavić, based on a suggestion by members of the Serbian diaspora from Chicago. During this first meeting Captain Dragan offered assistance to Martić. 83 Lučić confirmed that he took Captain Dragan to Benkovac in March 1991, and introduced him to the [REDACTED] of Benkovac. 84 Witness DFS-010, in accordance with Lučić’s testimony, stated that Lučić, Pavić and Captain Dragan came to [REDACTED], who took them to Martić. 85 Finally, Pavić called [REDACTED], the [REDACTED] of Benkovac, using the telephone used by Captain Dragan, and announced the trip to Knin mentioned herein. 86

68. Upon returning from Knin, Captain Dragan showed interest in military training manuals and topographic maps. 87

69. Therefore, the contacts and agreements between Captain Dragan and the management in Knin were unfolding without the participation of the DB of Serbia. This is also confirmed by a notice by the [REDACTED] of at the time, notifying the [REDACTED] that Captain Dragan travelled to the [REDACTED], and that, upon returning from the [REDACTED] and under suspicious circumstances, he started studying the political situation in the Knin Krajina and undertook certain activities aimed at [REDACTED]. Mention is also made of Captain Dragan’s contact with certain members of

82 [REDACTED] 83 tt. 15600 84 tt. 15633, 15637 85 [REDACTED] 86 [REDACTED] 87 [REDACTED] Case No. IT-03-69-A 28 9 December 2013 PUBLIC REDACTED VERSION 1241

[REDACTED]. 88 Captain Dragan at the time had contact with other [REDACTED]. 89 All the while, Captain Dragan [REDACTED]. 90

70. The Defence can only conclude, based on the evidence stated herein, and based on numerous other exhibits in the case files, that the accused Simatović was not the one who brokered the deployment of Captain Dragan in Knin, but that other persons and other structures were involved. Clearly, Captain Dragan made an agreement during his visit to Knin to assist in the training, and Simatović had nothing to do with his arrangements with the [REDACTED] in Knin.

71. The Prosecution further states that in the period between May and August 1991, Simatović, with the approval and participation of Stanišić, formed a special SDB unit in Golubić. All of this is based on the conclusion of the Trial Chamber from the Judgement. 91 The Prosecution does not state the evidence they rely on here, either, only quoting the conclusion of the Trial Chamber, and the Defence once again states that all conclusions by the Trial Chamber regarding the Unit would be subject to dispute.

iv. The Unit

72. The Defence rejects all allegations on The Unit in Prosecution Appeal Brief. The statement on the creation of the unit, along with other contradictory and evidently incorrect claims rests to a significant extent on the [REDACTED]. 92

73. All conclusions regarding the ceremony [REDACTED] need to be interpreted in light of the position and relation between RDB and Milošević at the time the ceremony was held. The relations between Milošević and the RDB

88 [REDACTED] 89 [REDACTED] 90 [REDACTED] 91 Judgement para. 1421, Prosecution Appeal Brief para. 62 92 [REDACTED] Case No. IT-03-69-A 29 9 December 2013 PUBLIC REDACTED VERSION 1240

management were tense after the [REDACTED] in February 1996. 93 The witness [REDACTED] stated that on orders by [REDACTED] he provided the protocol for the event, including the guest list and scenario for the ceremony. 94 [REDACTED] at the ceremony in [REDACTED], however, this fact says nothing about who the author of the [REDACTED] was. [REDACTED], as the person involved in all aspects of the organization of the event, could not state who [REDACTED]. 95

74. What is of particular significance is that the contents of [REDACTED] do not correspond to facts that can be clearly determined by analysis of documents that are not contentious. The [REDACTED] mentions the forming of the Special Operations Unit. However, the Special Operations Unit was formed in 1996. [REDACTED] was formed in 1993. The Prosecution, at the point labelled in its Appeal Brief, mentions a special SDB unit96, probably based on the Judgement that mentions the Serbian MUP DB unit. 97 The Defence hereby emphasizes that a large part of Section D of the prosecution’s brief identifies the participation of certain persons in combat activities in 1991 or 1992, as part of units that were created later, and were then at some point joined by those persons.

75. Other statements also do not correspond with the facts [REDACTED], and the Defence will hereby note only a few. [REDACTED] mentions the [REDACTED] in Skelani, Sokolac, Rogatica. 98 Prosecution witness Manojlo Milovanović, tasked with military air transport issues for the VRS, testified that the [REDACTED] mentioned in the [REDACTED] never existed, or were never used during the war. 99 The [REDACTED] also mentions hundreds of flights, whereby Milovanović states he certainly knew about hundreds of

93 D488 94 D466 95 ibid. 96 Prosecution Appeal Brief para. 62 97 Judgement para 1421 98 P61 99 tt. 15336-15339 Case No. IT-03-69-A 30 9 December 2013 PUBLIC REDACTED VERSION 1239

flights over BH territory that really happened. 100 Milovanovic’s testimony is also illustrative of the claims from the [REDACTED] regarding alleged training camps in Banja Luka, Šamac, Brčko, Bi jeljina, Trebinje, Višegrad, Ozren, Mrkonjić Grad. Milovanović, as one of the highest ranking officers of VRS at the time never heard of these camps. 101

76. The [REDACTED] also mentions 5,000 people who allegedly participated in wartime actions and whose activities were coordinated by the unit command and intelligence team of the [REDACTED]. 102 Witness DST-34 who visited both parties to the conflict disputed the possibility that this number of people could have participated in combat in the way described in the [REDACTED]. 103

77. The lack of factual basis for the [REDACTED] culminates with the claim on the existence and role of the [REDACTED] during 1991, as is obvious from the undisputed general acts of the service provided in the files.

78. As stated before, there is no evidence on who [REDACTED], but there is evidence that the contents of the [REDACTED] do not correspond to real events. Only a few examples are provided here, explaining only the reasons why conclusions cannot be based on this [REDACTED].

v. Role of JNA

79. The Prosecution mentions in the brief that the alleged members of JCE transformed the Yugoslav People’s Army (JNA) during 1991 into a Serb fighting force in Croatia.104 Here the Defence particularly wishes to emphasize the deep contradiction and incoherence of the overall theory of the

100 tt. 15570-15571 101 tt. 15571-15572 102 [REDACTED] 103 tt. 12447 104 Prosecution Appeal Brief para. 63 Case No. IT-03-69-A 31 9 December 2013 PUBLIC REDACTED VERSION 1238

Prosecution. Namely, under paragraph 62 of its Brief, the Prosecution mentions, as particularly important, the incorrect claim that the accused formed a unit of 25 to 30 people. In the very next, 63rd paragraph of its Brief, the Prosecution states that the persons controlling JNA undertook its transformation and turned it into a Serb fighting force. The Prosecution has repeatedly, during the entire course of this trial, neglected specific data on the importance, position, size, and combat ability of persons involved in the events. The Prosecution is building its theory on the importance and influence of 25 to 30 people, completely ignoring the obviously minor and peripheral importance of any group of 30 people compared to the tens of thousands of members of JNA armed with tanks, cannons, aviation. It is impossible to compare the importance of structures that are incomparable, impossible to compare the contribution and participation in the events of an armed force dominating all other participants in the conflict on all sides with a group of thirty people. The Defence here, of course, does not accept any claims by the Prosecution, only wishing to indicate the discrepancy that should serve as an important criterion for assessing the measure of participation of all persons involved in the events that are subject to discussion in this case.

80. Likewise, as stated by the Prosecution, JNA was transformed from a multi- ethnic into a Serb-dominated army and deployed itself to enable full coordination with Serb insurgents in the Serbian Krajina.105 Once again the role of JNA is minimized, the desire is to show it as second-class and only serving other formations. JNA was, however, a deciding factor in all events under discussion. Until the full engagement of JNA in the conflict there was practically no movement of lines between the parties to the conflict, and until the full engagement of JNA there were no crimes described in the charges. Saborsko, Škabrnja, Vukovići, Dubica and others, in all events the role of JNA is key, the events labelled as crimes are the direct consequence of activities wherein JNA has a central and leading role, as indicated in several places in the final submission of the Defence.

105 Prosecution Appeal Brief para. 63. Case No. IT-03-69-A 32 9 December 2013 PUBLIC REDACTED VERSION 1237

81. When speaking of the role of Serb forces in Section D, the Prosecution mentions attacks against all localities mentioned in the above paragraph106, but does nothing to differentiate the role of various structures, predicting that this differentiation is of great significance for the legal theory of JCE they wish to prove. Such differentiation would show that any participation by Simatović, even the participation the Prosecution is showing and the Defence sharply disputing, would not meet the substantial contribution criterion.

82. Finally, in the part of Section D wherein the Prosecution wishes to indicate a campaign of escalation and the systematic nature of the campaign of crimes107, they reference [REDACTED], even quoting part of his testimony while omitting key sections:

“In August 1991, JNA entered into the war with Croatia. The JNA engaged in combat operations in such a way that by moving the front line closer to the opposing party, using heavy artillery, it forced the population and members of the armed forces of the Croatian Government and the entire population to withdraw and retreat from those territories. In this way, the JNA, as of August 1991 engaged in a way so that the territories that it captured would be left without any Croatian inhabitants, or very few of them”108

83. The Prosecution starts their claims using the phrase “Serb Forces including JNA”109, however [REDACTED] does not mention Serb forces, but only JNA, and concludes his description of events with “JNA with other armed formations that were within its ranks”110 Therefore, [REDACTED] clearly emphasizes the key deciding role of JNA, emphasizing that other formations were within the ranks of JNA.

106 ibid para. 66 107 ibid paras. 64-69 108 [REDACTED] 109 Prosecution Appeal Brief para. 65 110 [REDACTED] Case No. IT-03-69-A 33 9 December 2013 PUBLIC REDACTED VERSION 1236

84. Although this testimony by [REDACTED] is deeply contentious from the standpoint of elementary credibility, the Prosecution presents this testimony, as such, incomplete and incorrect.

85. All claims regarding SBWS are also merely an overview of the conclusions of the Trial Chamber the Defence cannot agree with, and would be subject to appeal in case of a convicting judgement.

vi. Lovinac

86. In the arguments presented under Section D of its Appeal Brief, the Prosecution concludes that the accused must have known of Martić’s intent to commit crimes. 111 However, the paragraph of the Judgement referred to by the Prosecution does not contain any arguments that concern Simatović, and therefore the Defence contends that the conclusion cannot be automatically applied to Simatović as well.

87. The Prosecution particularly emphasizes that Simatović could have received confirmation of Martić’s criminal intent based on plans for the attack on Lovinac.112 Firstly, the Defence notes the absence of any evidence indicating that Simatović knew of Martić’s intent. In fact, when Witness JF-039 testified about the attack on Lovinac, his replies to the Prosecution’s extremely leading questions were unclear and ambiguous. The Prosecution asked him how he found out about the people’s intention to leave Lovinac, and JF-039 replied that they were planning to test the armored train.113 The Prosecution repeated the question: “did they talk about the object of the attack”114, to which JF-039 replied “they didn’t talk about-only about that day, about the object of the attack. They were speaking generally and said that they had to – because of the large number of Serb population, that they had to solve it behind Letka

111 Prosecution Appeal Brief para. 70 112 ibid para. 72, Judgement para. 2354 113 P977 p. 2019 114 ibid. Case No. IT-03-69-A 34 9 December 2013 PUBLIC REDACTED VERSION 1235

(phoen).”115 Hence, there is no clear indication in JF-039’s description that would indicate who is doing the talking, when this discussion took place, or what exactly these people are talking about. This witness further stated that he personally did not know how long the planning discussion lasted 116 which means that he was not even present during this discussion. Although the Prosecution in Section D of its Appeal Brief mainly relies on quotes from the Judgement, it failed to note some important conclusions that the Trial Chamber drew with regard to Lovinac. The Chamber found that there was an attack on Lovinac in June 1991117, however, the Chamber stated that it could not draw any conclusions in relation to the manner in which the attack on Lovinac was carried out, or whether any persons left Lovinac during or immediately following the attack. 118 Finally, the Trial Chamber established that in September 1991, members of the JNA attacked Lovinac, after which the village was deserted. 119

88. In addition to the above, the Defence indicates the evident inconsistency in an important part for drawing conclusions about Simatović’s knowledge and Martić’s intent. In one part of the Judgement there is mention of a discussion that Simatović had with Babić and Orlović about the objectives of the attack, 120 while elsewhere in the Judgement it is said that he allegedly talked about this with Martić and Orlović. 121 As stated above, both of the conclusions are unfounded because JF-039’s witness statement makes it impossible to identify the key elements, which would enable us to draw a conclusion. This is also manifest in the subsequent text of the Judgement, however, the Prosecution is selective in quoting the conclusions, and thus accepts the first part of paragraph 2340, but not the second part of the same paragraph, which reads that “the Trial Chamber was unable to establish, on the basis of the evidence

115 P977 p. 2019-2020, Judgement para. 324 116 P977 p. 2198 117 Judgement para. 332 118 ibid para. 338 119 ibid para. 339 120 Judgement para. 335 121 ibid. para. 2340 Case No. IT-03-69-A 35 9 December 2013 PUBLIC REDACTED VERSION 1234

of JF-039, the details of this discussion, nor to what extent Simatović agreed with the objectives that were discussed. “122 Hence, as we already noted, JF- 039 was not present during this discussion, and he does not know the details thereof. Drawing conclusions based on his blanket statements about Martić’s objectives is impossible, particularly not in a context where he attempts to prove that others knew of Martić’s intentions in that specific situation.

89. The Prosecution alleges that Simatović continued to support Martić, which he did by meeting with him again in Knin in October 1991. 123 The Prosecution substantiates its allegation with a quote from the Judgement, identifying Radoslav Maksić as the source. 124 Firstly, the Defence has numerous arguments to dismiss that Maksić ever saw Simatović in October 1991 in Knin. Maksić was told by others that the person he saw was Simatović, the only thing that Maksić was able to say about the man he saw is that he was tall and that he wore glasses.125 He does not remember any of the details, he just glanced at this person and does not know whether he wore a uniform or not, evidently he also did not know whether this person had said anything, to who he was talking and what they were talking about. Maksić stated: “I don’t care about Frenki”126 To conclude that Simatović continued to provide support, solely on the basis of this statement, is impossible. The Defence contends that it is questionable whether or not Maksić ever even saw Frenki, and even if this had really been Simatović, no other information is available as to why he came, whom he visited, who he talked to and what they talked about. The mere fact that two people met in the same place at the same time, without any other information as to their meeting, does not provide sufficient grounds to draw any kind of conclusion about their relationship.

122 ibid. 123 Prosecution Appeal Brief para. 73 124 Judgement paras. 1391, 1395, 125 tt. 6940-6941 126 tt. 6942 Case No. IT-03-69-A 36 9 December 2013 PUBLIC REDACTED VERSION 1233

90. In paragraph 74 of Section D of its Appeal Brief, the Prosecution talks about parallel structures in the SBWS but since there is not a single detail or other reference, it is unclear what kind of parallel structures the Prosecution refers to here, and what has Simatović got to do with this. In paras. 75-76 of Section D of the Prosecution’s Appeal Brief, with regard to the SBWS, there are no references to Simatović.

vii. BiH

91. According to the same blueprint used to explain the alleged role of the accused in Croatia, the Prosecution tries to combine parts of the Judgement to prove that the Trial Chamber should have drawn different final conclusions for the area of Bosnia-Herzegovina as well.

92. The Prosecution provides arguments in support of its view of the role of Karadžić, Krajišnik, and Plavšić in planning the political and military strategy of BiH. 127 In this part of Section D, the Prosecution recounts what Karadžić said about the Muslim people, what he said to the SDS members, what he said at the Republika Srpska Assembly sessions. 128 In particular, he underscores Karadžić’s Six Strategic Goals document, which is, according to the Prosecution’s interpretation, the blueprint for the persecution of non-Serbs. 129

93. In its allegations, the Prosecution tries to contrive a “common purpose” in this case. However, what the Prosecution fails to do is to point to Simatović’s alleged connection to the common purpose to remove the majority of non-Serb population from large areas in Croatia and BiH.

94. Key JCE members, when BiH is concerned, are Mladić, Milošević, Karadžić, Krajišnik, and Plavšić.130

127 Prosecution Appeal Brief para. 79 128 ibid. 129 Prosecution Appeal Brief para. 80 130 ibid paras. 79, 100 Case No. IT-03-69-A 37 9 December 2013 PUBLIC REDACTED VERSION 1232

95. As regards Mladić, thousands of documents were introduced in the case files, and among these documents are thousands of pages of Mladić’s notes, in which he described hundreds of meetings with various people, including persons identified by the Prosecution as JCE members. In this overwhelming amount of material, there is only mention of one meeting that Simatović allegedly attended, and there are no records in Mladić’s notes to indicate why Simatović was there, if he had said anything, or if Mladić had said anything to him. Just a note that he was present. 131 Despite the fact that Mladić used to record in detail his meetings with persons whom the Prosecution identified as JCE member, he wrote nothing about Simatović. The ensuing conclusion is that there was no direct or indirect interaction between Mladić and Simatović, and that Simatović’s importance and role is non-existent from the perspective of this key actor of all events in Bosnia at the relevant time. Simatović’s alleged presence at a single meeting, recorded by Mladić, will be further elaborated on hereinafter, in the appropriate sections of the Response.

96. As regards the relationship between Karadžić and Simatović, among the several dozen intercepted conversations during the war in BiH, of which a significant number involved other people identified by the Prosecution as JCE members, in the case files there are recordings that speak nothing of the true substance of Karadžić’s and Simatović’s relationship. For instance, during one call between Karadžić and [REDACTED], Karadžić accidentally happened to speak with Simatović briefly. Karadžić did not recognize Simatović’s voice, they used the polite form in addressing each other, and the content of this conversation provides no opportunity to make any inference about the topic of this conversation. 132 The other conversation is a conversation in which mention is made of Simatović, which also does not provide an opportunity to make an inference on the relationship, if any, between these people. 133 The absence of communication with Simatović is, indeed, a true illustration of

131 P392 132 [REDACTED] 133 P671 Case No. IT-03-69-A 38 9 December 2013 PUBLIC REDACTED VERSION 1231

Simatović’s position, several hierarchy levels beneath the level at which decisions were reviewed and made about political or military priorities.

97. The Prosecution also mentions Milošević’s contacts with regard to the events that occurred on the territory of Bosnia-Herzegovina, in the context of which mention is made of his talks with Karadžić, Krajišnik and Plavšić. 134 At the time relevant to the Indictment, Simatović had no contacts with the FRY and Serbia top-ranking leadership. There is no evidence that Simatović ever met with Milošević, who was the President of Serbia at the time, or Lilić who was the FRY President. The first and only meeting between Simatović and Milošević, documented in the case files, took place in 1997. 135

viii. Bosanski Samac and Doboj

98. The Prosecution attempts to summarize in a few sentences the beginning and course of the armed conflict in BiH. 136 The Prosecution repeatedly emphasizes the events in Bosanski Šamac.137 It alleges that the accused organized the participation of the Unit in the takeover of Bosanski Šamac, and that Simatović personally briefed the Unit members deployed to Šamac.

99. The Prosecution disregards key evidence with regard to Bosanski Šamac. In its interpretation of events, the Prosecution fails to assess the events in their entirety, and fails to discern the impact and importance of different factors that influenced the events, instead, it narrows down events mainly to their role and relevance for the Unit, and the role of the persons linked to this structure.

100. All conclusions related to Bosanski Šamac are mainly based on the testimony of a single witness, JF-047. As the Defence thoroughly explained in

134 Prosecution Appeal Brief para. 79 fn. 182 135 P61 136 Prosecution Appeal Brief paras. 83-88 137 Prosecution Appeal Brief paras. 84, 85, 90, 91 Case No. IT-03-69-A 39 9 December 2013 PUBLIC REDACTED VERSION 1230

its Final Trial Brief138, this witness’ statement entirely lacks credibility, and even if we were to neglect this, he also never stated that the group was dispatched to Šamac to carry out ethnic cleansing and participate in the takeover of the municipality, as the Prosecution claims. 139 All that JF-047 said in his testimony on Simatović’s alleged briefing is that Simatović told them to leave their personal documents, that they would be going on an assignment by helicopter and that it will be hard.140 JF-047 testified that Simatović also told the group that they were going to Bosanski Šamac to help the Serbian population that was in peril to defend their villages, and not to attack anyone. 141 That was the content of the briefing, as described by JF-047, nevertheless, the Defence still maintains its previous statements concerning this witness’ total lack of credibility.

101. The Prosecution contends that the accused trained, financed and equipped Unit members for the operation in Bosanski Šamac. 142

102. Simatović, however, did not participate in the activities, as the Prosecution claims, and as the Trial Chamber repeatedly concludes. All conclusions regarding Bosanski Šamac were subject to appeals by the Defence. At this point, the Defence will present just a few of the reasons, since a Defence Response to the Prosecution Appeal Brief is not a legal instrument providing for adequate elaboration of the position of the Defence.

103. The agreement on sending a group of people to Šamac was made at a meeting attended by [REDACTED] from the [REDACTED] and [REDACTED] from Šamac. 143 [REDACTED] contacted [REDACTED] regarding this group.144 Simatović’s role regarding the group leaving for

138 Simatovic Defence Final Trial Brief paras. 1186-1202 139 Prosecution Appeal Brief para. 90 140 tt. 7226 141 tt. 7681 142 Prosecution Appeal Brief para. 90 143 [REDACTED] 144 tt. 1576 p. 23434 Case No. IT-03-69-A 40 9 December 2013 PUBLIC REDACTED VERSION 1229

Šamac comes down to just a few sentences allegedly said by Simatović at the time the group was entering a JNA helicopter to go towards Šamac. Nowhere in the case files is it evident that Simatović selected the group, took part in its training, or enabled its training, or that he had financed the activities of this group. Simatović’s role regarding Bosanski Šamac does not provide a basis for conclusions on his intent, i.e. regarding the acts he is charged with.

104. Here, the Prosecution makes the same allegations as with regard to Bosanski Šamac, and Doboj as well. 145 The Prosecution refers to sections of the Judgement in which it is found that [REDACTED] and others were members of the Unit and present on mount Ozren between April and July 1992. 146 The Defence strongly contends these claims, and at this point, since this is its Response to the Prosecution Appeal Brief, it states just a few of its arguments. Namely, a large number of conclusions from the Judgement, transferred into the Prosecution Appeal Brief, rest on the premise that persons who were at some time members of JATD or JSO had to have been members of these units at all times, even before 1993, the year in which the JATD was founded. This identifies individuals and their biographies with separate and different professional paths to JATD or JSO. Not all participation or each engagement of an individual prior to joining JATD or JSO should be interpreted as their actions as members of these units. Attempts are made to establish that the primary link between the Unit and the events in Doboj was [REDACTED]. However, [REDACTED] was a member of the MUP of Republika Srpska at the time of the events in Doboj. Available documents show that between April and May 1992 he was a member of the Republika Srpska MUP, and that he was on the payroll of this institution.147 Likewise, [REDACTED] was never employed in RDB, as the organization the JATD and the JSO are linked to. On two occasions operative vetting was undertaken for [REDACTED], 148 but [REDACTED] was never accepted to the Service.

145 Prosecution Appeal Brief para. 85, 90, 91 146 Judgement para. 1597 147 P142, P143 148 [REDACTED] Case No. IT-03-69-A 41 9 December 2013 PUBLIC REDACTED VERSION 1228

The operative vetting indicates [REDACTED] did have contact with the DB, but this contact cannot be made equivalent to being a member of this Service. Likewise, [REDACTED] was in Doboj, but there are no indications on how he left for Doboj, whether he was sent there by somebody, whether somebody instructed him, or had control over his actions in this area.

105. A note should be made of the important fact that the Trial Chamber concluded that Simatović did not direct the Unit during the Doboj operations. 149 There is no evidence of him either financing, or sending anyone to Doboj, nor of having any kind of link to [REDACTED] at the time of the events in Doboj.

106. By linking Bosanski Šamac and Doboj, the Prosecution claims that the defendants had to have known in 1992 that members of the Unit committed crimes in Bosanski Šamac , and that it was thus reasonably foreseeable that members of the Unit would commit crimes in Doboj, as well.150

107. Firstly, the Defence denies that the group of persons transferred by JNA helicopter from [REDACTED] to the area of Bosanski Šamac can be called part of the Unit. The overly broad understanding whereby any group of persons having any contact with the Serbian DB automatically becomes part of the Unit is unsustainable and would have been subject to an appeal by the Defence. The group of people transferred by JNA helicopter to the area of Bosanski Šamac were members of the [REDACTED] from Kragujevac, while the Serbian DB Kragujevac Centre directly worked on investigating “militant paramilitary groups” in the region of Kragujevac and the surrounding area. The Kragujevac Center of Serbian DB states that [REDACTED] was the leader of the group, maintaining connections with leaders of right-wing parties, as well as political leaders in RSK and RS. Likewise, it is stated that members of the group went to the front lines based on a call by the

149 Judgement para. 1603 150 Prosecution Appeal Brief para. 91 Case No. IT-03-69-A 42 9 December 2013 PUBLIC REDACTED VERSION 1227

[REDACTED]. 151 It is unimaginable that [REDACTED] group was part of the Unit, yet was a target of Serbian DB intelligence operations as a militant paramilitary group. It is unimaginable that the accused are identified as superiors to a unit that another part of the Service is investigating, documenting and monitoring as a latent threat to state security.

108. [REDACTED] was a [REDACTED] and held [REDACTED] membership card No 2, second only to [REDACTED], 152 while [REDACTED] was also a member of the [REDACTED]. 153 [REDACTED], as the Chief of Staff of the Posavina Brigade did not send proposals for promotion to the alleged superiors of the Unit, the accused hereof, sending them instead to the [REDACTED]. 154

109. Upon the group’s arrival within the area of Bosanski Šamac, the group became part of the 17th Tactical Group.155 Orders for the group were issued directly by Colonel Nikolić, the Commander of the 17th Tactical Group. 156 Upon the retreat of JNA from the territory of BH, [REDACTED] was appointed Commander of the Posavina Brigade by the Commander of the East Bosnia Corps, while [REDACTED] was appointed Chief of Staff. 157 [REDACTED] submitted daily reports to the Command of the East Bosnia Corps. The Defence finds that the conclusion, whereby a group of volunteers of the [REDACTED] is identified as part of the Unit 158 where no part of it had any formal or legal connection to the Unit, is incredible. Of particular relevance is the fact that the group of volunteers, upon arriving in the area of Bosanski Šamac, broke all connections to the accused, if any existed at all. The Trial Chamber concluded that [REDACTED] and his group on

151 [REDACTED] 152 [REDACTED] 153 [REDACTED] 154 [REDACTED] 155 tt. 17942-17943 156 [REDACTED] 157 ibid. 158 Judgement para. 1534 Case No. IT-03-69-A 43 9 December 2013 PUBLIC REDACTED VERSION 1226

[REDACTED] became part of the Unit, and remained so even in a situation where they were commanded by others, financed by others, promoted by others, where they reported to others on their activities, and had no further contact with the Unit. Note is even made of [REDACTED] and [REDACTED] becoming VRS members, but this still does not impact the conclusions regarding their affiliation with the Unit.159 Although a Response to the Prosecution Appeal Brief is not the adequate legal instrument for presenting the opinions of the Defence on the conclusions of the Trial Chamber, the Defence cannot omit to state that the conclusion that someone who once becomes part of the Unit, according to the Chamber’s findings, remains so forever, despite all facts indicating the contrary, is a conclusion no reasonable trier of facts would adopt.

110. The Defence concludes that [REDACTED] volunteers can in no way be labeled as part of the Unit. Likewise, the statement that the defendants had to have known that members of the Unit committed the crime in Bosanski Šamac, and so it was predictable that the members of the Unit would commit the crime in Doboj, is without any grounds. Firstly, as noted above, calling the participants to the events in Bosanski Šamac and Doboj members of the Unit is unfounded. Furthermore, the participants of the events in Šamac and Doboj are completely different persons. Finally, there is not a single piece of evidence that the accused were notified of the crimes committed first in Bosanski Šamac, then in Doboj. Likewise, of some importance is also the fact that all of this occurred in a very brief period of time, in wartime conditions, with institutions and official information channels destroyed, therefore it is unreasonable to expect that the accused could have known any of the facts the Prosecution states in this section of its Appeal Brief.

ix. Pauk

111. Particularly interesting is the Prosecution’s claim that Serb forces continued the persecution of non-Serbs throughout the remainder of the

159 Judgement para. 1534. Case No. IT-03-69-A 44 9 December 2013 PUBLIC REDACTED VERSION 1225

Indictment period. 160 The Prosecution lists no sources for this statement, nor does it state what units are meant by this. However, the very next sentence is in regards to Operation Pauk, thereby implying that Operation Pauk was also used to perpetrate the crime. The Prosecution also contends that Operation Pauk illustrates the continuing unity of JCE members’ interests in securing Serb-claimed territory in BH. 161

112. Through these claims the Prosecution intends to completely misrepresent the scope and goals of Operation Pauk.

113. Namely, Operation Pauk unfolded within the area around Bihać and Kladuša where, from the summer of 1993, the forces of the Fifth Corps under the command of Atif Dudaković severely clashed with the forces of Western Bosnia under the command of Fikret Abdić. 162 One side in this conflict, that of Fikret Abdić, contacted Milošević. Not long thereafter Fikret Abdić met Milošević in Belgrade. 163 In August 1994, the forces of Fikret Abdić and the entire population of Western Bosnia fled to the region of RSK, with around 16.000 refugees. 164 The FRY and Serbian leadership decided to assist Fikret Abdić and the refugees in returning to their homes.165 Milošević agreed to help Abdić return the refugees to their homes. 166 As part of these activities, a command codenamed Pauk was formed, whose commander at the time was [REDACTED]. 167

114. The claims of the Prosecution that Operation Pauk should be seen in the context of securing Serb territories in BH is without any grounds. The cause and course of the operation is directly linked to resolving the issue of a

160 Prosecution Appeal Brief para. 87 161 ibid. 162 tt. 16797 163 tt. 16799, 16800 164 tt. 17700, 17701 165 tt. 17703, D1468 p. 8 166 tt. tt. 16810-16811 167 [REDACTED] Case No. IT-03-69-A 45 9 December 2013 PUBLIC REDACTED VERSION 1224

large number of Muslim refugees found within the territory of RSK. The Prosecution describes the alleged role of the accused in JCE as efforts to remove non-Serb population from large parts of BH. However, Operation Pauk should be assessed in a broader context, when the intent of the accused is concerned, naturally all within the limits of their role in these events.168 Operation Pauk is important evidence that there was no shared intent by the accused to commit a crime within JCE, since the goals and course of Operation Pauk resulted in the return of the non-Serb population to a large part of the territory of BiH, which is the complete opposite to the alleged goal of JCE the accused are charged with.

115. To illustrate Simatović’s continued contribution to the achievement of the common criminal purpose, the Prosecution alleges that Milošević, in a JCE members’ meeting, said that Serbia spent one billion dollars aiding Serb forces.169 Precisely this statement, without arguing about its veracity, shows the true scale of the difference in the amount of contribution of JCE, among the persons identified as JCE members. A meeting is held without the presence of Simatović to discuss aid, and this aid cannot be even remotely compared to the total financial assistance attributed without evidence to Simatović in various parts of the Prosecution Appeal Brief.

116. Paragraph 92 states that the accused contributed to the implementation of a common criminal purpose in BH using Arkan and SDG to facilitate the takeovers of Bijeljina and Zvornik, and by arming, equipping and supporting Zvornik TO. 170 The Defence emphasizes that this part of the Prosecution Appeal Brief is contrary to Ground Three, wherein the Prosecution does not request that the Appeals Chamber find that Simatović contributed to the implementation of the common criminal purpose in Bijeljina, Zvornik and SBWS. 171

168 Simatovic Defence Final Trial Brief paras. 781-823 169 Prosecution Appeal Brief para. 89, P2535 170 Prosecution Appeal Brief para. 92 171 Prosecution Appeal Brief para. 277 Case No. IT-03-69-A 46 9 December 2013 PUBLIC REDACTED VERSION 1223

x. Operation Udar

117. The Prosecution particularly emphasizes the importance of Operation Udar, by alleging that JCE members continued to cooperate in the prosecution of the war against the Bosnian Muslims through initiatives such as Operation Udar. 172 It is stated that the evidence concerning the planning for Operation Udar establish that Mladić and Mrkšić possessed criminal intent. Particular emphasis is placed on the meeting that Simatović attended with Mladić, where plans for Operation Udar were discussed, and on the fact that the Unit subsequently participated in the operation. 173 The Prosecution also states that the accused would at least have been aware of Mrkšić and Mladić’s criminal intent, but that they nonetheless deployed the Unit to Skelani. 174

118. Firstly, the Defence reiterates that the Prosecution takes Operation Udar completely out of the general context of the war in Bosnia-Herzegovina, and attributes a weight to it not matched by the evidence on the record. In fact, the accused in this case were indirectly involved in the events in East Bosnia after the Muslim forces launched an attack, on 16 January 1993, targeting Skelani, which is located on the border of BiH with Serbia, and drove out the entire population of this village to Serbia. Forty people were killed on the part of the bridge between Skelani and Bajina Bašta that belongs to Serbia. Mortar fire was opened on Serbian territory and the population of Bajina Bašta fled its homes. 175 Special police units (PJP) were deployed in the area of Bajina Bašta, and a MUP Staff was set up in Bajina Bašta, under the command of [REDACTED]. 176

172 Prosecution Appeal Brief para. 86 173 ibid. 174 Prosecution Appeal Brief paras. 93, 94 175 tt. 17544-17546 176 [REDACTED] Case No. IT-03-69-A 47 9 December 2013 PUBLIC REDACTED VERSION 1222

119. After the attack of the Muslim forces on Skelani and Bajina Bašta, the Yugoslav Army (VJ) took actions to drive enemy forces away from the border. A few days after the attack, the VJ Užice Corps and VJ Special Forces Corps crossed over to the territory of Skelani and took part in the operation. In this operation, VJ forces acted in coordination with VRS forces. 177 The Užice Corps forces crossed to the left bank of the Drina River and coordinated their activities with the forces of the VRS Drina Corps. 178 The Užice Corps launched a counter-offensive that inflicted huge losses on the enemy forces. 179 The accused in this case had nothing to do with the activities of the Užice Corps, considering that this unit was under the direct command of the VJ General Staff. 180

120. The Prosecution establishes a link between Operation Udar and Mladić’s Directive of 19 November 1992,181 although Mladić’s Directive did not apply to the events that led to the planning of Operation Udar. Operation Udar was executed under VRS General Staff combat orders of 15 February 1993. 182 The VRS Drina Corps issued delivered its combat orders on 12 February 1993, Drina Corps drafted preliminary orders to implement the plan for Operation Udar on 14 February 1993. 183 Detailed orders for Operation Udar were drafted by the Drina Corps, indicating who planned the operation and identifying the units that participated in this operation. 184

121. The Defence emphasizes that the planning of operation Udar is clearly explained by the evidence on the record. There is no uncertainty with regard to the actors who were responsible for planning the operation because the evidence introduced in the case files by the Prosecution unambiguously

177 tt. 19312-19313 178 D1620, D1621 179 D857 180 ibid. 181 P385 182 P3118 183 P3118 184 P3085 Case No. IT-03-69-A 48 9 December 2013 PUBLIC REDACTED VERSION 1221

provides all the required information to draw a conclusion in this part. The Defence particularly emphasizes that the planning of Operation Udar was carried out by the VRS competent commands and that there is no evidence that anyone from the Serbian DB participated in the planning of these activities.

122. Despite making a link between Mladić’s Directive from 1992 and Operation Udar, the Trial Chamber concludes that there is no evidence to indicate that Mrkšić and Mladić discussed their intentions with the accused in this case, or that Stanišić and Simatović knew of the content of the Directive and the speech that Mladić and Mrkšić delivered to their units. 185

123. With regard to the deployment of the Unit to Skelani, the Defence reiterates that all of Trial Chamber’s conclusions with regard to this finding would have been the subject of the Defence’s appeal. Nevertheless, here the Defence would like to comment on the Prosecution’s statement that the Unit was deployed to Skelani despite its “history of criminal conduct”, as the Prosecution alleges. 186 The Defence emphasizes that not a single crime was perpetrated during the activities in the area of Bratunac between February and August 1993, and in Skelani in March and April 1994. The Trial Chamber has not found, and the Prosecution has not alleged that any crimes were committed. 187

124. Finally, the attempt to implicate Simatović in the planning of Operation Udar is also unfounded. The only thing that links Simatović to Operation Udar is one single entry in Mladić’s diary. 188 As the Defence emphasized earlier, Simatović did not say anything at that meeting, there is no information on why he attended or how long he stayed at the meeting. Mladić did not record that any task was assigned to Simatović or any other structure

185 Judgement para. 2324 186 Prosecution Appeal Brief para. 94 187 Judgement para. 2351 188 P392 p.3 Case No. IT-03-69-A 49 9 December 2013 PUBLIC REDACTED VERSION 1220

that could have had any connection to Simatović. In that sense, the Trial Chamber’s position that Simatović took part in a planning meeting for Operation Udar on 28 February 1993 is completely unfounded. 189 Mere presence without any other evidence cannot be misconstrued as active participation, and the Trial Chamber has erred in drawing this conclusion. Nevertheless, the Trial Chamber concluded that the evidence does not establish what was discussed in relation to the objectives of Operation Udar, nor does it establish the scope of Simatović’s participation, 190 and draws the only possible conclusion, that no inference can be made about Simatović’s mens rea in this case, based on Operation Udar and Simatović’s participation at that meeting. 191

xi. Other References in Section D

125. The Prosecution contends that the accused organized logistical support for the Brčko training camp, and the Unit’s involvement in operations in the Brčko corridor. 192 The Defence has repeatedly denied all allegations in connection with Brčko in its briefs, and will therefore not do so again here. Here, the Defense will merely emphasize that the only conclusion that one can draw on the basis of the paragraph of the Judgement the Prosecution refers to193 is that no crimes were committed. The same applies to the Bratunac camp that the Prosecution also focuses on in its Appeal Brief. 194

126. The Prosecution further alleges that Simatović organized the involvement of SDG in Operation Pauk.195 The Defence thoroughly offered its arguments with regard to this Operation in various briefs, including this Response. Here the Defence will only comment on the conclusions of the Trial

189 Judgement para. 2351 190 ibid. 191 Judgement para. 2351 192 Prosecution Appeal Brief para. 95 193 Judgement paras. 1569-1571 194 Prosecution Appeal Brief para. 95, Judgement paras. 1699, 1702-1704 195 Prosecution Appeal Brief para. 95 Case No. IT-03-69-A 50 9 December 2013 PUBLIC REDACTED VERSION 1219

Chamber on this issue. 196 The Trial Chamber’s conclusions rest mainly on the testimony of JF-057 who could not have possessed the knowledge the Trial Chamber refers to, in view of [REDACTED] position, as the Defense already corroborated with detailed arguments. 197

127. The Prosecution further alleges that Simatović organized the involvement of SDG in the Treskavica/Trnovo operation. 198 The Trial Chamber’s conclusion that the Prosecution refers to is contradictory. 199 In fact, the Trial Chamber accepts the testimony of Borislav Pelević and determines that [REDACTED] and [REDACTED] requested Arkan to assist in Operation Treskavica. The Trial Chamber established that the SDG went to Treskavica, and yet it still accepted the testimony of witness JF-057, even though JF-057 clearly and unambiguously stated that [REDACTED] knows nothing about any role Simatović might have had in that operation. 200 Pelević, whom the Trial Chamber believes, offered a consistent explanation of that involvement, which invalidates all of JF-057’s statement, despite this, the Trial Chamber passed a conclusion that is contradictory and that the Defence would certain contest.

128. The Prosecution alleges that the accused provided support for the involvement of the SDG in the Treskavica/Trnovo operation through Vasilije Mijović. 201 Again, this allegation relies on the testimony of JF-057, despite the fact that this witness could not state the exact reasons of the alleged meetings between Mijović and Arkan, 202 despite the fact that this witness has limited indirect knowledge about Mijović.203

196 Judgement para. 2010 197 Simatovic Final Trial Brief paras. 645-703 198 Prosecution Appeal Brief para. 95, 99 199 Judgement para. 2039 200 tt. 9482 201 Prosecution Appeal Brief para. 95, Judgement para. 2037 202 tt. 9372 203 tt. 9491 Case No. IT-03-69-A 51 9 December 2013 PUBLIC REDACTED VERSION 1218

129. The Prosecution alleges that the accused also supplied the Scorpions with ammunition during its participation in the Treskavica/Trnovo operation. 204 This allegation rests on the testimony of JF-048. However, JF-048 testified that [REDACTED] once saw the members of Boca’s unit loading crates that looked like ammunition crates, and said that this happened in July or August 1995, most likely July. 205 [REDACTED] statement about the time when something was allegedly loaded onto the trucks in [REDACTED] for Boca, actually says nothing about the time, the only time determinant is connected to Arkan’s unit. 206 The Scorpions had withdrawn from the area of Treskavica/Trnovo by 24 July 1995, at the latest.207 Hence, even if it were true that at some point some of the members of the Scorpions took ammunition from [REDACTED], which the Defence sharply contests, it could have been in July, but after July 24th, it could have also been in August, because evidently JF-048 is not sure when the event that [REDACTED] describes took place. Allegations that the accused supplied the Scorpions with ammunition can definitely not be accepted as founded in any way.

130. The Prosecution alleges that the accused organized the training of the VRS, the Skelani TO, and “Karaga’s men” and the “Miće group”. 208 This allegation is based not completely wrong definition of The Unit, as stated in other parts of this Defence brief. This Response to the Prosecution Appeal Brief is not the appropriate legal instrument for the Defence to present the arguments that conclusively prove that the Prosecution’s allegations are entirely groundless.

131. Finally, the Prosecution sees the direct telephone contact between Arkan and Simatović during Operation Pauk and the Treskavica/Trnovo operation as yet another proof of Simatović’s continuing contribution to the

204 Prosecution Appeal Brief para. 95 205 tt. 5723-5724 206 [REDACTED] 207 P1473, tt. 10061 208 Prosecution Appeal Brief para. 96 Case No. IT-03-69-A 52 9 December 2013 PUBLIC REDACTED VERSION 1217

implementation of a common criminal purpose in BiH.209 Firstly, there is no evidence in the case files that the involvement of the SDG in these two operations was in any way related with the commission of any crime. Additionally, the Defence must again draw attention to its own statements in the Final Trial Brief whereby it disproves the testimony of witness JF-057 with detailed arguments. 210 JF-057 could simply not have known who Arkan talked to by phone, let alone what the subject of Arkan’s telephone conversations was. 211 Finally, witness Pelević, who was Arkan’s closest associate never heard that Arkan had ever met with Simatović, or that he talked to him by phone - if he had, then he, Pelević, would have certainly known about it. 212

xii. Conclusion with Regard to Section D

132. As we already stated, Section D presents the Prosecution’s own interpretation of evidence, which fails to reveal where the Trial Chamber erred and instead provides the Appeals Chamber with an alternative inference. In Section D, the Prosecution proffers a set of statements alleging that these are the basis for actus reus, which the Defence has already contested. The Defence submits that the Appeals Chamber should dismiss Section D for a whole set of reasons, explained in detail hereinbefore.

133. Nevertheless, the Defence hereby points to the absence of any arguments when the two key elements of JCE liability are concerned. Nowhere did the Prosecution elucidate in what way the accused Simatović significantly contributed to the implementation of the common criminal purpose. The Prosecution also failed to provide a single piece of evidence to demonstrate that Simatović shared the intent to further a common criminal purpose, or even indicate in what respect the Trial Chamber erred by

209 Prosecution Appeal Brief para. 98 210 Simatovic Final Trial Brief paras. 645-703 211 tt. 16459-16460 212 tt. 16462 Case No. IT-03-69-A 53 9 December 2013 PUBLIC REDACTED VERSION 1216

concluding that Simatović did not possess the mens rea required to establish his criminal liability.

Case No. IT-03-69-A 54 9 December 2013 PUBLIC REDACTED VERSION 1215

Sub-Ground 1(C)

134. In its Appeal, the Prosecution further claims that in addition, or in the alternative, the Chamber erred in fact in finding that Stanišić and Simatović did not share the intent to further the common criminal purpose of forcibly and permanently removing the majority of non-Serbs from large areas of Croatia and BiH, trough the commission of murder, deportation, forcible transfer and persecution. The Prosecution notes that there is no other reasonable explanation for Stanišić's and Simatović's continued substantial contribution to the pattern of displacement of non-Serbs from large areas in Croatia and BiH during a period of five years, in full knowledge that the displacement was done as part of a common criminal purpose.213

135. The Prosecution claims that Stanišić and Simatović created, deployed, trained, financed, supplied and supported multiple armed groups and continued supporting them, knowing that they participated in one massive systematic campaign of violence against non-Serbs.214

136. The Prosecution’s generalized view is evidently arbitrary, and unsubstantiated by the evidence presented in the case, and the same is manifest in the Prosecution Appeal Brief, when viewed as a whole. In fact, with regard to the Accused Simatović, the Prosecution mentions three to four events in its entire Appeal Brief (Lovinac; Bosanski Šamac; Doboj and Sanski Most), and practically only one single contact with an alleged JCE member (Milan Martić). In view of the fact that the Indictment spanned two states (Croatia and BiH), and a period of about five years (1991-1995), the Prosecution’s lack of evidence on Simatović’s alleged criminal activity becomes all the more conspicuous, and yet, the Prosecution claims that the Trial Chamber failed to assess the evidence in its totality. Indeed, it is precisely by looking at things from this perspective that one realizes that the evidence does not sustain the Prosecution’s theory.

213 Prosecution Appeal Brief, para.106; 214 Ibid, para. 107; Case No. IT-03-69-A 55 9 December 2013 PUBLIC REDACTED VERSION 1214

137. In consequence, the Prosecutions merely lists Simatović’s alleged actions that have contributed to the mass systematic campaign of violence against non-Serbs. Thus, the Prosecution claims that Simatović created multiple armed groups, without specifying which groups exactly, and how Simatović created these groups. The Prosecution also maintains that Simatović deployed multiple armed groups, again without specifying which groups, and where and how he deployed them. The Prosecution further claims that Simatović trained multiple armed groups, again without specifying which groups, and where and when he trained them. The Prosecution neglects the fact that, based on conclusive material evidence, the Chamber found that Simatović was not an instructor/trainer but an [REDACTED] in the [REDACTED] at the time relevant to the Indictment. Apart from basic military training, which was mandatory for all male citizens in Serbia, he has no other knowledge or skills that would enable him to train anyone. Again, the Prosecution makes an arbitrary claim, alleging that Simatović financed multiple armed groups, without specifying which groups these are. In doing so, the Prosecution fails to point out to the Appeals Chamber and the Defence the evidence in the case files that would prove that Simatović had any capacity to finance anyone. If the Prosecution thinks that Simatović financed these groups from his own pocket, then it should substantiate its claim with evidence. If, on the other hand, the Prosecution thinks that Simatović financed these groups with the funds of the Serbian SDB, the Prosecution is still required to point to the evidence that proves that Simatović held a the position that authorized him to decide to whom the money would be disbursed and up to what amount. We note that initially, Simatović was [REDACTED], and subsequently [REDACTED] to the chief of department for intelligence procedures. All this time, the SDB had a special [REDACTED] Administration, which dealt with financial and technical affairs, which had its head, who was directly responsible and subordinated to the head of the [REDACTED] Administration, and Simatović had no authority to issue orders to him or to request any funding from him for any armed groups. Even as [REDACTED] to the chief of department, Simatović still lacked this capacity, for the simple reason that his was an [REDACTED] and not a command

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position, and that he was still subordinated to the chief of the [REDACTED] Administration, furthermore, the chief of department had a special adviser for financial and technical issues among his [REDACTED] advisors.

138. The same findings and conclusions presented by the Defence herein with regard to finance, also apply to the allegation that Simatović supplied and supported multiple armed groups.

139. The Prosecution not only failed to specify which groups these were exactly, but it also never even attempted to provide evidence of continuity. For instance, in its Appeal Brief, the Prosecution alleges that Simatović aided the SDG only in 1995, and when mentioning multiple armed groups, the Prosecution primarily refers to SDG.

140. The Prosecution further submits that the Chamber closed its mind to this conclusion because it failed to assess these actions of the Accused as contributions to a common criminal purpose and rather looked at them as contributions to individual crimes. 215

141. In order for the Chamber to infer the right conclusion concerning the culpability or innocence of each of the accused individually from the totality of the evidence, it has to analyze each individual crime and assess whether the accused contributed to the perpetration of each individual crime. If a large number of crimes were committed, and the accused did not contribute to any of these in any way, then the number of crimes is absolutely irrelevant for the criminal liability of the accused. Hence, the Trial Chamber correctly approached the assessment of Simatović’s actions by examining them as contributions to individual crimes.

142. The Prosecution suggests to the Appeals Chamber that the accused, which means Simatović as well, knew of the crimes as early as 1991, and that

215 Ibid, para. 107; Case No. IT-03-69-A 57 9 December 2013 PUBLIC REDACTED VERSION 1212

they accepted them, as demonstrated by their continued work with and assistance to those groups and JCE members in the years that followed. 216

143. The Prosecution specifically alleges that the accused, which means Simatović as well, continued to assist Martić and the SAO Krajina Police well after they knew of his criminal intent.

144. As the evidence proves, and we will further elaborate on this hereinafter, Simatović staid in Knin from May to August 1991 during the entire time relevant to the Indictment. During this time, he was on a special assignment in Knin. In this short period of time of less than three months, Simatović did not assist Martić. The Prosecution failed to point to the faintest hint of evidence that Simatović provided assistance to Martić, and that Simatović continued to assist Martić. The Prosecution has failed to provide the Appeals Chamber and the Defence with any factual statements and evidence that would corroborate its claim.

145. The Prosecution further contends that Simatović participated in the attack on Lovinac, despite having known of Martić’s intent for the attack itself to be a crime. The Trial Chamber thoroughly elaborated on and analyzed Simatović’s role in connection with Lovinac. We already noted that the Trial Chamber thoroughly addressed this issue and specifically analyzed all of the Prosecution’s allegations. In spite of this, the Prosecution still insists on Lovinac as the only potential link between Simatović and the crimes in SAO Krajina. The Prosecution establishes Simatović’s participation on the basis of the [REDACTED], whom neither the Defence nor the Trial Chamber had the opportunity to interrogate about all the circumstances. The Defence maintains that numerous other pieces of evidence demonstrate that Simatović did not participate in the attack on Lovinac. Even if this were true, the evidence still does not clearly demonstrate whether any crimes were committed in this action, in particular not forcible transfer of non-Serb population.

216 Ibid, paras. 108-109; Case No. IT-03-69-A 58 9 December 2013 PUBLIC REDACTED VERSION 1211

146. Simatović did not deploy the Unit to Doboj, and he did not know that certain members of the Unit perpetrated crimes in Bosanski Šamac. Evidence incontestably proves that at the time of the takeover of Doboj, the Unit (JATD) had still not been formed. Unfoundedly, the Prosecution links the participation of the Unit in Doboj with the name of [REDACTED], who had never been a member of the Serbian SDB, and who was in Doboj as a member of the Republika Srpska MUP, as an individual, at the time when this city was taken over. Simatović has no connection with the events in Doboj. The Defence will further elaborate on this hereinafter.

147. Hence, the Unit was not in Doboj and Simatović could not have deployed it there. Simatović could not have deployed the Unit to Bosanski Šamac either, because it still did not exist at the time. In Bosanski Šamac, there was a group of thirty [REDACTED] volunteers over whom Simatović had no influence, and whom he could not have influenced. Hereinafter, the Defence will further elaborate on the issue of Bosanski Šamac as well.

148. As regards Operation Udar, in its Judgement the Trial Chamber analyzed Simatović’s alleged connection with Operation Udar on more than two pages, and it is therefore not clear on what grounds the Prosecution argues that Simatović deployed the Unit despite knowing of both Mrkšić’s and Mladić’s intent (without specifically mentioning what kind of intent).

149. Finally, the Prosecution reiterates that Simatović financed Arkan and SDG in the Banja Luka operation in 1995, despite knowing of crimes committed by the SDG in SBWS in 1991 and in Bijeljina and Zvornik 1992.

150. The Defence first notes that, as we already underscored hereinabove, the Prosecution has failed to establish Simatović’s capacity to finance anyone, let alone the SDG. In addition to that, the Prosecution is inconsistent and contradictory again in accusing Simatović that he knew of the crimes that the SDG allegedly committed in SBWS in 1991 and in Bijeljina and Zvornik in

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1992. Furthermore, in Ground Two and Ground Three of its Appeal Brief, the Prosecution does not request that Simatović be held responsible for these crimes. Hence, the Prosecution itself is not convinced that Simatović participated in any way in these crimes, so it is incomprehensible on what grounds the Prosecution establishes that Simatović knew about these crimes of the SDG.

151. The Prosecution believes that the Trial Chamber erred in inferring that the intent of the Accused was limited to asserting or maintaining the Serb's “exclusive control“ over “large areas of Croatia and Bosnia-Herzegovina“.217 According to the Prosecution, the only reasonable conclusion is that they shared the criminal intent with the other JCE members, and that this is the only possible explanation of their close cooperation. 218

152. The Defence would like to bring the attention of the Appeals Chamber to the fact that the extensive evidence indicated by the Defence in its Final Trial Brief, and partly in its Response to the Prosecution Appeal Brief, indisputably disprove the Prosecution’s standpoint and prove, at the very least, that the intent of the Accused to assert or maintain the Serbs’ exclusive control over large areas of Croatia and BiH is an alternative reasonable conclusion with respect to their actions.

153. The Prosecution maintains that the Chamber correctly found that Martić had the intent to deport non-Serbs from SAO Krajina, but failed to find that this intent was shared by the Accused.219

154. The Defence’s intention here is not to discuss Martić’s criminal intent, but to point that the Prosecution has failed to provide any evidence that would prove beyond reasonable doubt that Simatović shared this intent with Martić.

217 Ibid, para. 110; 218 Ibid, para. 111; 219 Ibid, para. 112; Case No. IT-03-69-A 60 9 December 2013 PUBLIC REDACTED VERSION 1209

155. The Defence firstly notes that, Martić in any case had the intention to maintain exclusive control over this part of Croatia and for this purpose he, and he was not alone, took legitimate actions. Simatović certainly had to have known, given the overall social, political and military context during his stay in Knin, that Martić was taking actions to maintain exclusive control in that area. Therefore, the Prosecution was required to prove beyond reasonable doubt that Simatović knew of Martić’s intent to deport non-Serbs from the SAO Krajina, and should have provided evidence that Simatović, through his actions, demonstrated that he shares this intent with Martić. The Prosecution failed to do so. Specifically, the distinction between the one and the other action should have been established, in other words, the Prosecution should have unambiguously and clearly indicated which of the Accused Simatović’s actions, and why, prove that he shared Martić’s alleged intention to deport non-Serbs from SAO Krajina.

156. The arguments that the Prosecution attempted to provide in its Appeal Brief on this issue are unfounded, illogical and unsubstantiated by the evidence presented in this case.

157. The Prosecution claims that Simatović “cooperated closely“ with Martić and refers to the first instance Judgement. However, the Defence notes that the Prosecution disregards the fact that the First Instance Chamber clearly indicated that there is no evidence in the case files that Martić discussed his intent to deport non-Serbs with the Accused. Furthermore, the paragraph that the Prosecution refers to only mentions the accused Stanišić and not Simatović.220 Hence, not even the First Instance Chamber established what the close cooperation between Martić and Simatović would have entailed, instead it only elaborated on Stanišić’s close cooperation with Martić. There is an evident absence of evidence of any kind of close cooperation that Simatović might have had with and Martić.

220 Judgement, para. 2332; Case No. IT-03-69-A 61 9 December 2013 PUBLIC REDACTED VERSION 1208

158. The Prosecution further suggests that the accused cooperated with Martić in full “knowledge and acceptance of the risk” that Martić and “the SAO Krajina police would commit crimes when establishing and maintaining Serb control over large areas of Croatia”.

159. Again, in its allegation the Prosecution refers to the same paragraph, which fails to reveal anything about Simatović’s position or role, or about his cooperation with Martić from April 1991 onwards.

160. Finally, the Prosecution claims, again referring to the same paragraph of the Judgement, that the Accused “must have known about the crimes committed by the SAO Krajina Police between April 1991 and April 1992”.

161. As we already noted, Simatović is not even mentioned in the paragraph examined by the Prosecution, probably also because there is no evidence of any contact between Simatović and Martić from August 1991 to April 1992, which is when the crimes were allegedly committed.

162. Hence, there is a clearly evident lack of grounds in the Prosecution’s conclusion that the alternative explanation that the accused only intended to assist local SAO Krajina authorities in establishing and maintaining Serb control over large areas of Croatia is unreasonable in light of the Accused's continued cooperation with Martić over the months and years in knowledge of criminal intent and criminal conduct.221

163. The Defence refers the Appeals Chamber to the Simatović Final Trial Brief in which the Defence elaborates on Simatović’s stay in Knin, the activities he pursued there and the contacts he established.222

221 Prosecution Appeal Brief, para. 113; 222 Simatović Final Trial Brief, paras. 185-222; Case No. IT-03-69-A 62 9 December 2013 PUBLIC REDACTED VERSION 1207

164. All of the evidence that the Defence elaborated on in its Brief in detail, and partly in this Response, clearly proves that there was no continuing cooperation between Simatović and Martić to speak of, not over the years, or even over the months.

165. Simatović had no dealings with Martić in Lovinac. Again, the Prosecution relies on a single piece of evidence in the form of [REDACTED], which the Defence could not verify and which is not supported by any other evidence. The Defence maintains that Simatović had nothing to do with the attack on Lovinac, but even if he was involved, it is clear that no crimes were committed in this particular attack. The nature of the attack on Lovinac clearly reveals that Simatović had no interest in this attack. Here we refer the Appeals Chamber to the section of the Simatović Final Trial Brief in which we address the issue of the attack on Lovinac.223 At this point the Defence would like to point out the absence of logic behind [REDACTED] and the Prosecution’s allegations. Namely, the Prosecution suggests that Simatović was present when [REDACTED] planned the attack on Lovinac, and [REDACTED] mentions that he heard Simatović boasting about his role in the attack on Lovinac in a restaurant.

166. Particularly groundless is the Prosecution’s allegation, i.e. claim, that Simatović had close cooperation with [REDACTED], the other key JCE player in the SAO Krajina who admitted his criminal intent. [REDACTED] and there is no evidence in the case files that he had any kind of cooperation with Simatović, let alone a close one.

167. Yet again, the Prosecution makes an entirely unsubstantiated allegation that there was a continuing relationship between the accused and Arkan, starting from 1991 all the way to 1995. Even this allegation of the Prosecution, when the Accused Simatović is concerned, is in contradiction with the

223 Ibid, paras. 223-226; Case No. IT-03-69-A 63 9 December 2013 PUBLIC REDACTED VERSION 1206

remaining text of the Appeal Brief, considering that Prosecution does not charge Simatović for Arkan and the SDG’s actions before 1995.224

168. As we already mentioned, the Defence disagrees with the numerous factual findings of the Trial Chamber, which it had no opportunity, or need, to challenge, considering that Simatović has been acquitted. We repeat that his Response is not the adequate instrument to argue against the Trial Chamber’s controversial findings, nevertheless, we still wish to emphasize that the Trial Chamber erred in finding that the Accused Simatović had any role in organizing Arkan and the SDG's deployment to Treskavica/Trnovo.

169. The Trial Chamber, and as we can see the Prosecution as well, rely exclusively on the statement of witness JF-057, a statement entirely void of credibility and probative value and weight that we will further elaborate on hereinafter. At this point we wish to note that the Witness does not even know what kind of role Simatović had in this event, however, he allegedly knows that Simatović invited Arkan to participate in Operation Treskavica. The Witness knows no other details concerning this invitation, which in itself compromises the probative weight and value of this witness statement. In particular in view of the fact that there is not a single other piece of evidence to corroborate this allegation.

170. Still, the Prosecution’s misinterpretation the Trial Chamber’s findings is a cause of concern. Namely, in its Appeal Brief the Prosecution suggests that Simatović’s role was to organize Arkan and the SDG’s deployment to Treskavica/Trnovo on behalf of another JCE member, Karadžić. This misconstruction is an attempt to prove that Simatović was a JCE member, who run errands for and on behalf of Radovan Karadžić. However, the evidence in the case relentlessly proves the utter failure of the Prosecution’s desperate attempt to establish some kind of connection between Simatović and Radovan Karadžić, however far-fetched. There is definitely not a single piece of

224 Prosecution Appeal Brief, para. 116; Case No. IT-03-69-A 64 9 December 2013 PUBLIC REDACTED VERSION 1205

evidence in this case that would point to any kind of cooperation or coordination between Simatović and Karadžić.

171. The Defence specifically draws the Appeals Chamber’s attention to the fact that, in the contentious paragraph, the Trial Chamber only mentions that Mrgud and Karadžić requested Arkan to assist in the Trnovo operation, and Arkan's letter to Karadžić about his readiness to join the forces of the Bosnian- Serb Republic. No reasonable trier of facts would conclude that Simatović invited Arkan on behalf of Radovan Karadžić, on the contrary.

172. In fact, it is the evidence referred to by the Trial Chamber itself that logically indicates that Simatović was not acting on behalf of Radovan Karadžić, in other words that he was not an intermediary in the deployment of Arkan and the SDG to this operation. On the contrary, the facts established by Trial Chamber invalidate the credibility of JF-057’s witness statement. If Simatović had acted as some kind of intermediary between Karadžić and Arkan, or if he had been involved in engaging Arkan on this occasion, then this would have certainly been mentioned in the communications between Arkan and Karadžić or in Arkan’s letter to Karadžić. The Trial Chamber itself found that Mrgud and Karadžić asked Arkan to take part in Operation Trnovo. Bearing in mind that we are talking about 1995, and that Arkan and Mrgud, and Arkan and Karadžić had a close and direct relationship, there is no logic in the premise that Simatović would have intervened in this relationship and his alleged involvement in this case. If Simatović had found himself in an intermediary, or any other role, Arkan would have sent his letter to Karadžić through Simatović, that is, he would have availed himself of Simatović’s intermediary services, or he would have at least mentioned his involvement in the letter.

173. Consequently, it is clear that the unreliable and illogical witness statement on Simatović’s alleged mediation role that lacks any other details concerning the circumstances of Simatović’s role as intermediary is not supported by any evidence or even elementary logic. On the contrary, the

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Defence included evidence into the case files that proves that Simatović was preoccupied with his own wedding at the time when this Operation was in progress, and that he spent a month in [REDACTED] in the same period.225

174. Furthermore, the Defence notes that with respect to the alleged close cooperation of the two accused with Karadžić, once again the Prosecution puts an emphasis on evidence concerning the accused Stanišić. Having exhausted its only proof, Witness JF-057, whose testimony, even if it were reliable, says nothing about the cooperation between Simatović and Karadžić, the Prosecution continues to provide arguments exclusively concerning the liability of the accused Stanišić226, whilst trying to impute all of it, albeit not explicitly, to the Accused Simatović.

175. In the end, the Prosecution concludes that both of the accused, i.e. Stanišić and Simatović alike, shared the intent for the entire common plan.

176. Considering the geographical and time frame of the Indictment, the Defence wonders whether one meager piece of evidence, embodied in the witness statement of JF-057 is sufficient for the Prosecution to derive such an important conclusion.

177. The Defence has already noted why this piece of evidence is of little or no probative value, and will further elaborate on this hereinafter, and on the evidence that proves that this statement lacks credibility.

178. However, even if this Witness’ statement were to be taken as the truth and nothing but the truth, it could still not be considered as a proof of the Accused Simatović’s intent. Even if it were true that Simatović invited Arkan to participate in Operation Treskavica, that would still not prove that Simatović shared a common intent with the other alleged JCE members.

225 [REDACTED] 226 Ibid, para. 118-122; Case No. IT-03-69-A 66 9 December 2013 PUBLIC REDACTED VERSION 1203

179. The Defence reminds the Appeals Chamber that we are talking about the year 1995, that this Operation took place on the eve of Operation Oluja, and that it was part of a broader, legitimate military action. In this context, an entirely plausible explanation is that Simatović was mediating with the intent to provide the Bosnian Serb army with assistance for the achievement of their legitimate military targets in terms of defense from the Muslim forces’ offensive. No reasonable Trial Chamber could have excluded this reasonable alternative, having considered all the facts and evidence. In fact, the Defence believes that in this sense the act is the primary logical inference, and not some, however reasonable, alternative. 180. The Defence concludes that Sub-Ground 1(C) should be dismissed in its entirety.

Conclusion on Ground One

181. Finally, considering all three sub-grounds of Ground One of the Prosecution Appeal Brief, the Defence emphasizes one particularly important fact. The Prosecution does not analyze the conclusions of the Trial Chamber on Simatović’s mens rea provided under paragraphs 2340-2354, marked as the paragraphs where, within Ground One, the Trial Chamber committed an error justifying the intervention of the Appeals Chamber.227 The Prosecution does not analyze the contents of these paragraphs, does not analyze whether the Trial Chamber made an error regarding Simatović in assessing his mens rea in relation to the events in Vukovar228, in relation to Operation Udar 229, in relation to other military operations that may be linked to Simatović. 230 The Prosecution does not even deal with Simatović’s mens rea as seen by the Trial Chamber in regards to Lovinac, although it does deal with various other aspects of the events surrounding this place. The Prosecution simply does not

227 Prosecution Notice of Appeal para. 3 228 Judgement paras. 2343-2345 229 Judgement paras. 2346-2351 230 Judgement para. 2352-2353 Case No. IT-03-69-A 67 9 December 2013 PUBLIC REDACTED VERSION 1202

argue against the conclusions contained under paragraphs 2340 to 2354, and does not specify anywhere in its Appeal Brief what is wrong and unfounded in these paragraphs. The Prosecution dedicated its Appeal Brief to elaborating numerous other aspects of this case. Across a number of pages, the Prosecution elaborates what the Trial Chamber should have considered in making a decision. However, there is no real argument anywhere in the Prosecution Appeal Brief against the conclusions lying at the core of the Judgment. The Prosecution Appeal Brief is essentially a description of the conclusion the Trial Chamber should have made from the point of view of the Prosecution, based on available material. Nowhere in its Appeal Brief does the Prosecution challenge the key views of the Trial Chamber.

Under paragraph 2345 the Trial Chamber concludes:

• that there is no evidence to establish that Unit members participated in the attack on Vukovar, • that witness JF-033 did not provide any details about Simatović’s visit or his participation in the discussion;

Under paragraph 2351 the Trial Chamber concludes:

• that no crime was committed during Operation Udar, • that there is no possibility of determining anything with regard to the objectives of Operation Udar discussed at the meeting on 28 February 1993 attended by Simatović, • that the scope of Simatović’s participation in the meeting on 28 February 1993 cannot be established, • that Simatović’s participation in Operation Udar does not provide sufficient grounds to establish beyond reasonable doubt that Simatović shared the intent to drive the Muslim population out of the eastern Bosnia-Herzegovina or to create an ethnically pure corridor in the Drina river valley;

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182. Nowhere in its Appeal Brief does the Prosecution state the reasons why these findings are wrong, and where the Trial Chamber has erred. The Prosecution offers its own interpretation of the evidence in its Appeal Brief, without specifying where exactly in paragraphs 2340 to 2354, which were identified as erroneous in Ground One, was the error made that requires the intervention of the Appeals Chamber.

183. Having regard to all of the above, the Defence maintains that the Trial Chamber has not erred in law and/or in fact in finding that Simatović did not share the intent for JCE liability. Prosecution Ground One of the appeal should be dismissed in its entirety.

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GROUND TWO OF THE PROSECUTION APPEAL BRIEF

184. In its Appeal Brief, the Prosecution wrongly and groundlessly alleges that the Trial Chamber erroneously acquitted Stanišić and Simatović of aiding and abetting the crimes in the municipalities of Bosanski Šamac, Doboj and in the SAO Krajina.231

185. The Prosecution baselessly alleges that the Trial Chamber erred in law in requiring that the acts of the aider and abettor be specifically directed to assist the commission of the crime. The Prosecutor asserts that the foregoing requirement introduced in the Perišić Appeal Judgement has no basis in the law of Tribunal. The Prosecution also baselessly alleges that the evidence in the case files is sufficient to establish that the Accused possessed the mens rea for aiding and abetting these crimes. 232

186. In its Appeal Brief, the Prosecution additionally or alternatively insists that the Trial Chamber erred in fact because no reasonable trial chamber could have found that Stanišić and Simatović did not aid and abet the crimes in Bosanski Šamac, Doboj and the SAO Krajina. The Prosecution err oneously believes that even if the “specific direction” test is accepted, no reasonable Trial Chamber could have found that the acts of the Accused did not have a substantial effect on the commission of these crimes. Finally, the Prosecution concludes that the evidence on the record establishes that the Accused possessed the mens rea for aiding and abetting these crimes. 233

231 Prosecution Appeal Brief, para. 128; 232 Ibid, para. 129; 233 Ibid, para. 130; Case No. IT-03-69-A 70 9 December 2013 PUBLIC REDACTED VERSION 1199

187. Hereinafter, the Defence will present arguments to prove that the foregoing views of the Prosecution are unfounded and that the Appeals Chamber should dismiss them as such.

Sub-Ground 2(A)

188. In its Appeal the Prosecution alleges that the Trial Chamber erred in law with respect to the actus reus requirement for aiding and abetting following the Perišić Appeal Judgement and requiring proof that Stanišić and Simatović's acts be specifically directed to assist, encourage or lend moral support to the perpetration of the crimes (“specific direction“).234

189. The Prosecution erroneously and baselessly suggests that customary international law does not require specific direction as an element of aiding and abetting by referring to the findings of the Trial Chamber in the Furundžija Trial Judgement.235 In an attempt to find further support for its views, the Prosecution also refers to the Aleksovski Appeal Judgement. 236

190. At this point, the Defence wishes to emphasize that the Prosecution’s arguments are unsubstantiated, and that customary international law as well as the case law of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda recognize the “specific direction” principle in assisting in a crime as an integral part of actus reus of aiding and abetting.

191. The Defence wishes to draw the Appeals Chamber’s attention to the fact that Appeals Chambers have on numerous occasions defined the actus reus of aiding and abetting as acts “specifically directed” to assist, encourage or lend moral support to the chief perpetrator of a criminal offence that have a

234 Ibid, para. 131; 235 Ibid, para. 134, 135; 236 Ibid, para. 136,137, 139; Case No. IT-03-69-A 71 9 December 2013 PUBLIC REDACTED VERSION 1198

significant influence on the perpetration of the criminal offence.237 Upon examining the case law of the Tribunal, one can clearly establish consistency in the Appeals Chambers’ approach to this standard. The Defence finds that the Appeals Chamber articulated the foregoing standard for the first time in the Tadić Appeal Judgement. Subsequently, the Appeals Chambers have justifiably persisted in incorporating the term “specific direction” when arguing for the necessity of the “specific direction” requirement for the actus reus in aiding and abetting.238

192. Further on in its Appeal Brief, the Prosecution also relies upon the Appeal Judgements in Mrkšić and Lukic cases, alleging that the Appeals Chamber in the Perišić Appeal Judgement erroneously characterized the former two Appeal Judgements in which, allegedly, “specific direction” was explicitly dismissed as an element of aiding and abetting. 239

193. The Prosecution’s reliance upon the Mrkšić and Lukić Appeal Judgements in reaching the conclusion that “specific direction” is not a required element of the actus reus of aiding and abetting is completely misguided.

194. Namely, it is necessary to clarify that the Appeals Chamber in the Mrkšić case relies solely on the Blagojević Appeal Judgement regarding the

237 Tadić-Appeal Judgement, para. 229; Vasiljević- Appeal Judgement, para. 102(i); Blagojević- Appeal Judgement, para. 127; Kvočka- Appeal Judgement, para. 89; Blaškić- Appeal Judgement, para.45; Rukondo- Appeal Judgement, para. 52; Kalimanzira- Appeal Judgement, para. 74, 86; Muvunyi- Appeal Judgement, para. 79; Seramba- Appeal Judgement, para. 44; Ntagerura- Appeal Judgement, para. 370; Ntakirutimana- Appeal Judgement, para. 530; Nahimana- Appeal Judgement, para. 482; 238 Tadić- Appeal Judgement, para. 229; Vasiljević- Appeal Judgement, para. 102(i); Blagojević- Appeal Judgement, para. 127; Kvočka- Appeal Judgement, para. 89; Blaškić- Appeal Judgement, para.45; Rukondo- Appeal Judgement, para. 52; Kalimanzira- Appeal Judgement, para. 74, 86; Muvunyi- Appeal Judgement, para. 79; Seramba- Appeal Judgement, para. 44; Ntagerura- Appeal Judgement, para. 370; Ntakirutimana- Appeal Judgement, para. 530; Nahimana- Appeal Judgement, para. 482; 239 Prosecution Appeal Brief, para. 140., 141.; Case No. IT-03-69-A 72 9 December 2013 PUBLIC REDACTED VERSION 1197

assumption that the Appeals Chamber in that case affirmed that “specific direction” is not an essential ingredient of the actus reus of aiding and abetting. 240 This, however, is far from true. Unlike the allegation of the Appeals Chamber in the Mrkšić case, the Appeals Chamber deciding in the Blagojević case, by finding that the above term is “often implicit“241 actually upholds the consistency in the application of “specific direction”.

195. The Blagojević Appeal Judgement actually endorses “specific direction” as part of the actus reus, by stating that such a conclusion is often implicitly contained in the finding that the accused provided practical assistance to the principal perpetrator that had significant influence upon the perpetration of the criminal act. Finally, the Blagojević Appeals Judgement decidedly stated that it did not explicitly depart from the definition of the actus reus of aiding and abetting outlined in the Tadić Appeal Judgement.242

196. For all the above reasons, the Mrkšić Appeal Judgement is erroneous per se and cannot abrogate the customary concept of “specific direction” widely adopted by Appeals Chambers when defining the actus reus of aiding and abetting. 243

197. In its Appeal Brief, the Prosecution misinterprets the Lukić Appeal Judgement by alleging that the Appeals Chamber in that case unequivocally affirmed the Mrkšić Appeal Judgement's rejection of specific direction. On the contrary, the Appeals Chamber in the Perišić case quite correctly finds that the

240 Mrkšič- Appeal Judgement, para. 159; 241 Blagojević- Appeal Judgement, para. 189; 242 Ibid, para. 189.; 243 Tadić- Appeal Judgement, para. 229; Vasiljević- Appeal Judgement, para. 102(i); Blagojević- Appeal Judgement, para. 127; Kvočka- Appeal Judgement, para. 89; Blaškić- Appeal Judgement, para.45; Rukondo- Appeal Judgement, para. 52; Kalimanzira- Appeal Judgement, para. 74, 86; Muvunyi- Appeal Judgement, para. 79; Seramba-Ž Appeal Judgement, para. 44; Ntagerura- Appeal Judgement, para. 370; Ntakirutimana- Appeal Judgement, para. 530; Nahimana- Appeal Judgement, para. 482; Case No. IT-03-69-A 73 9 December 2013 PUBLIC REDACTED VERSION 1196

Lukić Appeal Judgement approved the existence of a specific direction requirement. 244

198. The Defence believes that the concept of “specific direction” is explicitly included as an element of the actus reus of aiding and abetting also in two Appeal Judgements of the International Criminal Tribunal for Rwanda pronounced after the Mrkšić Appeal Judgement. The Appeals Chamber in the Kalimanzira case refers to acts “specifically directed” to assist in the perpetration of the crime. 245

199. Also, the Appeals Chamber in the Rukondo case introduced, we can freely say, a variation of the term “specific direction” by finding that an act has to be “specifically aimed” at assisting the perpetration of a crime. 246

200. Therefore it is obvious that this Tribunal’s jurisprudence as well as that of the International Criminal Tribunal for Rwanda recognize “specific direction” as the constant, either implicit or explicit element, that is an indelible part of the actus reus of aiding and abetting. Clearly, the Mrkšić Appeal Judgement significantly deviates from the Tribunal’s case law.

201. The Defence also wishes to bring to the attention of this Appeals Chamber two first instance Judgements of the Special Court for Sierra Leone that also find “specific direction” to be a necessary element of the actus reus of aiding and abetting. 247

202. Further in its Appeal Brief, the Prosecution suggests that the specific direction test introduces vague concepts which create uncertainty and practical difficulties. 248

244 Perišić- Appeal Judgement, para. 35.; 245 Kalimanzira- Appeal Judgement, para. 74.; 246 Rukondo- Appeal Judgement, para. 52.; 247 Sesay- first instance Judgement, para. 277.;Fofana- first instance Judgement, para. 229.; 248 Prosecution Appeal Brief, paras. 143-149.; Case No. IT-03-69-A 74 9 December 2013 PUBLIC REDACTED VERSION 1195

203. On the contrary, the Defence is of the opinion that abandoning the specific direction concept would create difficulties and vagueness in establishing the actus reus of aiding and abetting because without it, the liability of accused would be so broadly implied, without any clear dividing lines to define which acts and omissions are to be considered as acts of aiding and abetting a crime.

204. The Perišić Appeal Judgement correctly, and based on firm foundations, establishes the concept of a “culpable link” between assistance provided by the aider and abettor and the crimes of the principal perpetrators. 249

205. At this point, the Defence finds it necessary to mention that in the Tadić Appeal Judgement, where the Appeals Chamber for the first time articulated the standard for the actus reus, it did so in the context of making a clear distinction between responsibility for aiding and abetting and participation in the joint criminal enterprise. The Appeals Chamber in the Tadić case in fact finds that the aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime, and that these acts have a substantial effect upon the perpetration of the crime.250 In contrast, the Appeals Chamber in the Tadić case also clearly explains that acts which are in some way oriented towards furthering a common plan or objective are sufficient for the required participation in the joint criminal enterprise. The above, clearly established and particularly important distinction between these two regimes of liability provided firm grounds for the Appeals Chamber to proceed with applying the specific direction standard as a necessary element of the actus reus of aiding and abetting. This same distinction, made by the Appeals Chamber in the Tadić case for the purpose of drawing a clear line between these two regimes

249 Perišić-Appeal Judgement, paras. 37-38; para. 68; 250 Tadić - Appeal Judgement, para. 229; Vasiljević- Appeal Judgement, para. 102(i); Case No. IT-03-69-A 75 9 December 2013 PUBLIC REDACTED VERSION 1194

of liability, served as the basis for constituting “specific direction” as a necessary element of liability for aiding and abetting, and for its further practical implementation. This concept was further developed in the Perišić Appeal Judgement and the Trial Chamber in this case applied this concept entirely correctly.

206. As regards “mere awareness” in determining the necessary mens rea for aiding and abetting, the Defence is convinced that mere awareness is not sufficient for determining the necessary mens rea for aiding and abetting. In fact, according to international law, the standard relevant for the mens rea for aiding and abetting, requires evidence proving the existence of a purpose – aim and not only that of “mere awareness”.

207. Given the fact that the statute of the Tribunal does not set standards regarding the mens rea necessary for aiding and abetting, applicable standards must be therefore derived from customary international law.

208. The Rome Statute of the International Criminal Court unequivocally defines the necessary mens rea for aiding and abetting. Accordingly, in order to find an accused criminally responsible for aiding and abetting it is necessary to establish that the accused acted with the aim of facilitating the commission of a crime. 251

209. When it comes to the International Tribunal’s own case law, one should note that the knowledge standard was considered in the process of adoption of the Rome Statute. This standard was soon rejected in favor of a far more acceptable and clear standard of purpose - aim. 252

251 Rome Statute, Article 25(3)(c); 252 Flavia Zorzi Giustiniani, Responsibility of Accomplices in the Case-Law of the Ad Hoc Tribunals, Criminal Law Forum 417, 20(3/4) (2009), pp. 442-443; As one of the participants in the Conference in Rome noted, “aider and abettor must act with the “purpose”…. which means more than mere awareness.“(Albin Eser, Individual Criminal Responsibility According to the Rome Statute of the International Criminal Tribunal: Comment 767, Vol. I ( Antonio Cassese et al. ., eds.)(2002), p. 801); Case No. IT-03-69-A 76 9 December 2013 PUBLIC REDACTED VERSION 1193

210. Given the fact that the Rome Statute has been ratified by numerous states, it clearly reflects the International Community’s consensus regarding the applicable mens rea for aiding and abetting. By accepting provision of Article 25(3)(c) of the Rome Statute, the International Community has clearly established the standard requiring the existence of purpose-aim as a necessary element of the mens rea, thus rejecting “mere awareness” in establishing responsibility for aiding and abetting.

211. Thus also, the Trial Chamber of the International Criminal Tribunal in its deliberation upon this issue, explains that contrary to the jurisprudence of ad hoc Tribunals, Article 25(3)(c) of the Rome Statute requires the accused to have acted for the purpose of facilitating the commission of a crime and states that awareness only is not sufficient for establishing responsibility under this Article. 253

212. Also, the Appeals Chamber in the Tadić case correctly noticed that the Rome Statute had been adopted by an overwhelming majority of the States attending the Rome Diplomatic Conference and that it was substantially endorsed by the Sixth Committee of the United Nations General Assembly. 254 The Appeals Chamber further acknowledges that the Rome Statute has been supported by a great number of States and that it may therefore be taken to express the legal position, i.e. opinio iuris of those States. 255 The Appeals Chamber in the Furundžija case also expressly states that the Rome Statute by and large may be taken as constituting an authoritative expression of the legal views of a great number of States.256 Consequently, it would be reasonable to conclude that the Tribunal took into consideration the Rome Statute in

253 Prosecutor vs, Callixte Mbarushimana, No. ICC-01/04-01/10, Decision confirming the Indictment, 16 December 2011., para. 274.; the standard of awareness foreseen by Article 30 does not change the essence of the standard of purpose as defined in Article 25(3)(c), because the latter standard belongs to the category of “unless otherwise foreseen” of Article 30.; 254 Tadić-Appeal Judgement, para. 223; Furundžija- First-instance Judgement, para. 227.; 255 Tadić- Appeal Judgement, para. 223.; 256 Furundžija-first instance Judgement, para. 227.; Case No. IT-03-69-A 77 9 December 2013 PUBLIC REDACTED VERSION 1192

outlining its guidelines for addressing the essential issues of customary international law. 257

213. It is clear, therefore, that Article 25(3)(c) of the Rome Statute reflects the development of customary international law since the adoption of the Statute in 1998, and that during its existence the provision has grown into a commonly adopted trend recognizing that knowledge of a committed crime is not sufficient to establish the responsibility of aiders and abettors. 258

214. That the foregoing standard of purpose has been accepted even by the states that are not party to the Rome Statute, is demonstrated by the US Appellate Courts, which addressed the issue of applicable standard with respect to the mens rea required for aiding and abetting in accordance with international law. The issue has been deliberated upon by a number of US courts, most of which have found that the applicable mens rea for aiding and abetting under international law requires the standard of purpose foreseen by Article 25(3)(c) of the Rome Statute. 259

215. In applying customary international law, the US Second and Fourth District Courts of Appeal also rejected the simple standard of knowledge.260 Regardless of the fact that the USA did not ratify the Rome Statute, its Second and Fourth District Courts have, nevertheless, acknowledged that the Rome

257 For inst. Krnojelac- Appeal Judgement, paras. 221-222.; Kunarac- Appeal Judgement, para. 118. and footnote 147; Tadić- Appeal Judgement, paras. 222-223.; Boškovski- First-instance Judgement, para. 186.; Hadžihasanović-Decision, para. 46; Furundžija- First-instance Judgement, paras. 227-235.; Krstić- First-instance Judgement, para. 541.; Čelebić - First-instance Judgement, paras. 342-343. and footnote 331. 258 UN Transitional Administration in East Timor adopted the same purpose standard regarding the mens rea as foreseen by Article 25(3)(c) of the Rome Statute (UN Transitional Administration in East Timor, No. 2000/15, Section 14.3(c), 6 June 2000) 259 Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, para. 259 (2d Cir. 2009); Aziz v. Alcolac, Inc., 658 F.3d 388, para. 401 (4th Cir. 2011); 260 Talisman, 582 F.3d at para. 259; Aziz, 658 F.3d at para. 401.; Case No. IT-03-69-A 78 9 December 2013 PUBLIC REDACTED VERSION 1191

Statute represents an authoritative international standing on the issue of the legal standard for the mens rea for aiding and abetting.261

216. In accordance with its assigned mandate, the Tribunal has been applying customary international law by finding the law to be the cornerstone of all its decisions. 262 In line with the evolution of customary international law, particularly with respect to the elements necessary for aiding and abetting, the Tribunal should establish a clear case law under which an accused cannot be found guilty of aiding and abetting unless proven, beyond any reasonable doubt, that he acted with the purpose of facilitating the crime he has been charged with. Customary international law has reached the level where mere awareness is insufficient grounds for establishing this type of responsibility.

217. The Defence is aware of the fact that the Tribunal’s case law relating to required mens rea tests required for aiding and abetting in accordance with customary international law is inconsistent. One can rightfully argue that the Appeals Chamber, while it still held the position that awareness was sufficient for assigning responsibility for aiding and abetting, did not give serious consideration to the issue of whether such standard is supported by customary international law. This inconsistency in the Tribunal’s application of standards for mens rea for aiding and abetting has been articulated through various definitions used in the relevant jurisprudence. Thus, for instance, in a number of cases tried before the ICTY and the ICTR, some Chambers insisted on the required intent to facilitate or aid the crime, which actually implied the

261 Talisman, 582 F.3d at para. 259; Aziz, 658 F.3d at para. 401.; 262 Tadić-Appeal Judgement, paras. 194, 220, 226-227, 251, 255-270, 275, 287-292; Furundžija- Appeal Judgement, paras. 272-273, 275, 281, 283-284 (Declaration of Judge Robinson); Krstić- Appeal Judgement, paras. 223-224; Kunarac- Appeal Judgement, paras. 98, 101, 116-124, 145-148; Krnojelac- Appeal Judgement, paras. 102, 220-223; Galić- Appeal Judgement, paras. 81-85; 3-5 (Dissenting opinion of judge Shahabuddeen); Stakić- Appeal Judgement, paras. 62, 300-303; 35 (Partially dissenting opinion of judge Shahabuddeen); Milutinović-Decision, paras. 9-10; Hadžihasanović-Decision, paras. 11-31, 35, 44-51, 55; Case No. IT-03-69-A 79 9 December 2013 PUBLIC REDACTED VERSION 1190

existence of purpose-aim while in a number of other cases, views were expressed to the effect that mere knowledge would suffice. 263

218. Given the fact that the first instance Judgement in the Furundžija case was one of the first ICTY Judgements that adopted the mere awareness standard, which was consequently and subsequently upheld by some other later Judgements, 264 all these Judgements are subject to serious doubts in light of the increasingly prevailing position of the International Community regarding the purpose-aim mens rea standard for aiding and abetting, requiring the evidence that the aider and abettor acted for the purpose of facilitating the commission of a crime.

219. It is becoming increasingly obvious that the Trial Chamber in the Furundžija case erroneously relied upon Article 30 of the Rome Statute having found that the required standard with respect to the mens rea for aiding and abetting was mere knowledge. 265 The required mens rea for aiding and abetting is actually clearly and unequivocally determined in article 25(3)(c) of the Rome Statute which is obviously the lex specialis relative to Article 30 of the same Statute.

220. From this distance, it is evident and clear that the Trial Chamber in the Furundžija case erred in finding that the post-World War II jurisprudence had established that mere knowledge is sufficient to establish the required mens rea for aiding and abetting. 266 A detailed analysis of the cases tried after World War II that the Furundžija Trial Chamber relies upon, imposes a credible conclusion that in those cases the courts, when defining aiding and abetting, relied upon the standards then prevailing in their local legal systems

263 Kamuhanda first instance Judgement, paras.597, 599; Kajalijeli-First-instance Judgement, paras. 766, 768; Kvočka- First-instance Judgement, paras. 255, 262; Bagilishema- First-instance Judgement, para. 32; Blaškić- First-instance Judgement, para. 286; Čelebić- First-instance Judgement, para. 326; 264 Furundžija-First-instance Judgement, para. 249; Aleksovski-Appeal Judgement, para. 162;Blaškić- Appeal Judgement, paras. 46, 50; 265 Furundžija- First-instance Judgement, para. 244; 266 Furundžija- First-instance Judgement, paras. 236-240; Case No. IT-03-69-A 80 9 December 2013 PUBLIC REDACTED VERSION 1189

and not upon international standards. After all, the Furundžija Trial Judgement also admits that the Judgements passed by those courts are of lesser value for establishing the rules of international law. 267

221. Still, there are cases tried after the World War II that adopted the “purpose” test, the Hechingen Deportation case, for inst. Further to the point, the Trial Chamber in the Tadić case, which also considered cases tried after World War II while searching for the plausible mens rea required for aiding and abetting, noticed that the post-war Judgements generally do not discuss in detail the criteria for establishing guilt.268 The only clear “template” the Tadić Trial Chamber found in the relevant case law, concerning the mens rea standard was the requirement for the existence of intent, which in any case implies the awareness of the act of complicity supported by a conscious decision to participate, inter alia, in aiding and abetting in the commission of a crime. This standard, by all means, implies a mens rea more complex than mere knowledge.

222. Generally speaking, the findings in the Furundžija Trial Judgement concerning the elements required for establishing the mens rea for aiding and abetting are based on erroneous interpretation of the customary international law standards.

223. Considering all the above, it is clear that the Appeals Chamber in this case, when deciding on the Prosecution Appeal Brief, must take into account not only the notion of specific direction as an element of actus reus of aiding and abetting but also the generally adopted standard of customary international law which foresees the existence of a purpose-aim as a sine qua non element of aiding and abetting. The consistent application of customary international law with respect to the said elements of actus reus and mens rea of aiding and abetting in this case unequivocally demonstrate that the Trial Chamber in this case acted absolutely correctly in relieving Simatović of

267 Furundžija- First-instance Judgement, para. 196; 268 Tadić- First-instance Judgement, para. 674.; Case No. IT-03-69-A 81 9 December 2013 PUBLIC REDACTED VERSION 1188

responsibility for aiding and abetting crimes charged in the Indictment. Therefore, the Prosecution Appeal Brief should be dismissed in this part.

Case No. IT-03-69-A 82 9 December 2013 PUBLIC REDACTED VERSION 1187

Sub-Ground 2(B)

224. The Prosecution took the stand that, in addition or in the alternative, the Chamber erred in fact, considering that, in their opinion, no reasonable trial chamber could have found that Stanišić and Simatović did not aid and abet the crimes committed in the municipalities of Bosanski Šamac and Doboj and in the SAO Krajina, even accepting that specific direction constitutes an element of the actus reus of aiding and abetting. 269

225. In its Appeal Brief, the Prosecution first contends that no reasonable trial chamber could have found that the acts of the Accused did not amount to a substantial contribution to these crimes. The Prosecution further contends that the Chamber's erroneous assessment of the Accused's contribution was compounded in relation to Bosanski Šamac and Doboj by a misapplication of the legal test as set out in the Perišić Appeal Judgement. It further contends that in particular, the Chamber erroneously made the finding of substantial contribution contingent upon establishing “specific direction“.270

226. Second, the Prosecution argues that no reasonable trial chamber could have found that the contributions of the Accused to the crimes in Bosanski Šamac and Doboj were not specifically directed to the commission of the crimes. Similarly, in relation to the crimes in the SAO Krajina, the Prosecution argues that a proper assessment of the evidence also shows that the acts of the Accused were specifically directed to the perpetration of the crimes in these locations.271

227. The Defense emphasizes that the Prosecutions views and arguments on this issue are absolutely unacceptable and unfounded, and that the Trial Chamber correctly found that Simatović is not responsible for aiding and

269 Prosecution Appeal Brief, para. 154.; 270 Ibid, para. 155.; 271 Ibid, para. 156.; Case No. IT-03-69-A 83 9 December 2013 PUBLIC REDACTED VERSION 1186

abetting the crime in Bosanski Šamac, Doboj and SAO Krajina . The Prosecution Appeal should, therefore, be denied as unfounded in this part as well.

228. Before providing a more concrete answer to the Prosecution’s arguments with respect to Simatović’s alleged liability on these grounds of liability, at this point the Defense wants address some more general principles in establishing criminal liability and assessing evidence in this regard.

229. In fact, the Defense believes that in cases where there is no direct evidence and where an inference relies on circumstantial evidence, one must establish that the evidence on which a potential conviction relies corroborates only one reasonable inference. If the evidence provides grounds for drawing more than one reasonable inference, then the accused cannot be found guilty. Therefore, in cases when an inference is drawn from circumstantial evidence to establish a fact on which the conviction relies, then that must be the only reasonable inference that could be drawn from the evidence presented. 272

230. Here we also emphasize that the Defense disagrees with a number of the Trial Chamber’s factual findings, however, in view of the fact that the Trial Chamber has acquitted the Accused Simatović from all charges of the Indictment, the Defense had no legal interest to challenge certain factual allegations of the Trial Chamber. In addition to that, the Defense emphasizes that its Response is not the right instrument to debate some of the findings of the Trial Chamber in more detail and more explicitly.

231. Thus, in its Appeal Brief the Prosecution refers to the Trial Chamber’s finding that in early 1992, the Unit committed murder, deportation, forcible transfer and persecution in Bosanski Šamac and deportation, forcible transfer and persecution in Doboj. It further emphasizes that Stanišić and Simatović contributed to these crimes by forming the Unit and by organizing and

272 Stakić-Appeal Judgement, para. 219; Čelebić-Appeal Judgement, para. 548; Hadžihasanović-Appeal Judgement, para. 286; Case No. IT-03-69-A 84 9 December 2013 PUBLIC REDACTED VERSION 1185

financing the Unit’s involvement in the Bosanski Šamac and Doboj takeovers. 273 The Prosecution alleges that, after forming the Unit, Stanišić and Simatović organized its training and provided the Unit with resources and equipment to participate in the takeover of Bosanski Šamac and Doboj . The Prosecution alleges that the accused helped the Unit commit the ensuing crimes.274

232. As the Defense already noted, the Trial Chamber erred in finding that Franko Simatović had any role or part whatsoever in forming, organizing , supplying, financing or deploying the unit to any location in Croatia and/or Bosnia-Herzegovina. The vast evidence indicated by the Defense in its Final Brief proves this position conclusively and beyond reasonable doubt.

233. In its Brief, the Defense thoroughly assessed the events in the Bosanski Šamac Municipality quoting vast evidence that clearly and unambiguously leads to the conclusion that the Bosanski Šamac Municipality was formed as a new municipality for the purpose of organizing the Serb population in that area for defense, all under the leadership of the SDS. Blagoje Simić was the president of the SDS in Bosanski Šamac , and he was one of Radovan Karadžić’s most trusted men. 275 The 17th Tactical Group had the dominant defense role in that area, it was heavily armed, both with heavy and light artillery. In addition, the leaders of Bosanski Šamac established direct contacts with the command of the Yugoslav Air Force in Belgrade, concretely with [REDACTED]. 276

234. In Bosanski Šamac, the SDS was highly dissatisfied with the work of the public security station in the city, which is why in April 1992 the SDS leadership decided to reorganize the activity of the police station in Šamac and plans were prepared for this task. 277 In parallel with the preparations led by

273 Prosecution Appeal Brief, para. 157; 274 Ibid, paras. 158-159; 275 [REDACTED] 276 [REDACTED] 277 Ibid, para. 1141; Case No. IT-03-69-A 85 9 December 2013 PUBLIC REDACTED VERSION 1184

the SDS, the SDA also mobilized Muslims in order to take over the municipality and for that purpose they formed a unit with 212 members.278 Some ten days before capturing Bosanski Šamac, the JNA started distributing weapons in the surrounding villages, and heavy artillery and tanks were present as well.279 On 17 April 1992, the JNA, together with members of the TO and MUP of Bosanski Šamac seized control over the municipality, and the Command of the 2nd military district notified the General Staff in Belgrade that the Command of the 17th Corps reported that all vital buildings in Šamac had been seized.280

235. At the meeting of the leadership of Bosanski Šamac with Ratko Mladić held on 7 December 1992, the top-ranking leaders of Bosanski Šamac talked to Mladić about the beginning of the war in Šamac . Blagoje Simić, as the municipality president said that they went into the war to liberate the territory between 16 and 17 April 1992, and that the war was started with a 6,700-men strong brigade. Stevan Todorović explained that he knew Colonel [REDACTED], and that he sent 18 people to [REDACTED] to be trained, and that they came back by military helicopters together with another 30 volunteers from Kragujevac, among whom were [REDACTED] and [REDACTED]. Simo Zarić also had contacts with [REDACTED] from the Yugoslav Air Force. Mladić did not record any mention of the Republic of Serbia MUP or DB in describing the details on the takeover of Bosanski Šamac. Todorović connects the sending of 18 people to [REDACTED] directly with his acquaintanceship with the Yugoslav Air Force officers. 281

236. This undisputed evidence indicates the scale of the armed conflict in that Municipality, the involvement of the local SDS and JNA, their number and weapons, all deployed to seize control over the Municipality. Furthermore, this evidence indicates that in addition to the significant forces,

278 Ibid, para. 1142; 279 Ibid, para. 1143: 280 Ibid, paras. 1144-1145; 281 [REDACTED]; Case No. IT-03-69-A 86 9 December 2013 PUBLIC REDACTED VERSION 1183

there was another group of about thirty volunteers of minor importance in that area in the relevant period, and the Prosecution builds its case on their presence. Clearly, there is no evidence to prove beyond reasonable doubt that there was a Serbian DB unit in the area of Bosanski Šamac in the relevant period.

237. Vast evidence corroborates that this was a group of about thirty volunteers who arrived in the Municipality of Bosanski Šamac on 11 April 1992 in a JNA helicopter. As soon as they landed, [REDACTED] decided to include them in the composition of the 17th Tactical Group, which had over 2000 members. 282 [REDACTED] directly issued orders to all volunteers. 283

238. The Defence points out that the group of about thirty volunteers mentioned hereinabove, was a group formed by the [REDACTED] that acted under the leadership of that party and was directly responsible to its War Staff. 284

239. Contrary to the overwhelming evidence presented in the case, the Prosecution suggests in its Appeal that the Serbian DB unit was formed at the end of 1990 or beginning of 1991, and as such, it participated in the crimes. However, the facts and presented evidence prove beyond reasonable doubt that the Serbian DB unit (JATD) was formed on 4 August 1993, on the basis of a Decision issued by the Minister of Interior Zoran Sokolović. That the Minister of Interior had the authority to form this unit, as a special organizational unit within the Ministry of Interior of the Republic of Serbia, and he determined the scope and organization of this unit. In his Decision, the Minister prescribed the strength of the unit, the specific scope of activity and the manner in which these units would be used. The unit had its Staffing and Job Classification Rules. The JATD reserve force was under the authority of the Deputy Unit Commander [REDACTED]. The Chief of the DB had the

282 Ibid, para. 1152; 283 Ibid, para. 1153; 284 Ibid, paras. 1162-1178; Case No. IT-03-69-A 87 9 December 2013 PUBLIC REDACTED VERSION 1182

authority to make decisions on hiring personnel for the JATD, as well as decisions concerning assignment to duties. The unit was under the command of [REDACTED] ever since its inception until the formation of the RS RDB Special Operations Unit (JSO) in 1996. [REDACTED] was the deputy commander of the Unit, as the JATD commander was never appointed, [REDACTED]. The Minister of the Interior made decisions on the deployment of the Unit. Various RDB administrations provided logistical support to the JATD. Financial means and equipment for the Unit were provided through the [REDACTED] Administration. Issues related to the logistical support provided to the Unit were within the scope of work of the [REDACTED], which he did in cooperation with the [REDACTED] Administration. The [REDACTED] provided the Deputy Commander of the Unit with intelligence, at his request. 285

240. As far as Doboj is concerned, the Prosecution’s intention to establish a link between the events in Doboj and the Serbian DB Units through [REDACTED] is evident. However, overwhelming evidence produced in the course of the trial proves beyond any doubt that [REDACTED] was a member of the MUP of Republika Srpska (BiH) at the time relevant for the Indictment. In this MUP’s documents for April and May 1992, [REDACTED] was identified as a member of this Ministry, who was on the payroll of this Ministry. Extensive direct and circumstantial evidence proves this. The Defence also produced conclusive evidence that proves beyond any doubt that the training of Special Units in Ozren was under the command of a certain [REDACTED], a member of the BiH MUP. The crime in Doboj is linked to 12 July 1992, and therefore [REDACTED] could evidently not have taken part in it. In fact, [REDACTED] was hospitalized in the Doboj General Hospital from 26 June 1992 to 23 July 1992, after being wounded. After his release from the hospital and subsequent recovery, he was assigned to the duties and tasks of [REDACTED]. The decision on his appointment was made by the Minister of Interior of Republika Srpska, Mićo Stanišić on 13 January 1993. [REDACTED] was never and RDB Serbia staff member. There is not a

285 Ibid, paras. 976-996; Case No. IT-03-69-A 88 9 December 2013 PUBLIC REDACTED VERSION 1181

single piece of evidence in the case files that would suggest that the Serbian RDB, or anyone from the Serbian RDB, sent [REDACTED] to Doboj and gave him any kind of orders or instructions. Furthermore, there is no evidence in the case files that would prove that [REDACTED] reported to the Serbian RDB about events in Doboj or that he sought any kind of directions or instructions. Witnesses confirm that the group [REDACTED] belonged to was part of the Doboj Security Services Centre (“CSB”). According to the statements of numerous witnesses, all forces involved in the crime in Doboj were local people from the area of Doboj. Witnesses familiar with the events in Doboj testified that all formations in Doboj were under the command of local residents [REDACTED] and [REDACTED]. According to witness statements, the crimes were perpetrated by several local groups wearing red berets. The witness stated that all soldiers who participated in the events that took place in Doboj were local people, with the exception of one person nicknamed Crnogorac (the Montenegrin[REDACTED]. It is particularly important to note that BiH MUP personnel were directly responsible for all people who were either detained or taken into custody, while the security of the collection centers, where these people were detained, was under the direct authority of the Serbian armed forces. This order was issued by the Minister of the Interior of Republika Srpska, Mićo Stanišić.286

241. The Defence maintained and still maintains that the Prosecution failed to prove beyond reasonable doubt that Serbian DB special units “operated” on the territory of the Doboj Municipality, and specifically that these unit(s) took part in the perpetration of crimes. In particular, there is no evidence with regard to who would have formed, equipped and commanded such a Unit in the area of Doboj. The Prosecution reduces its argumentation to identifying the kind of beret a person wore on their head, and if the beret was red then there’s a link to the Serbian DB.

242. Finally, it is extremely important for the Appeals Chamber to note that the entire body of facts clearly reveals that Simatović had no connection

286 Ibid, paras. 1074-1104; Case No. IT-03-69-A 89 9 December 2013 PUBLIC REDACTED VERSION 1180

whatsoever with Doboj, that there is no evidence that he was in the immediate proximity of the event (either in space or time), or evidence that he in any way influenced events, there is no evidence that he knew about these events, or that he had intended these events to happen.

243. The Defence, therefore, believes not only that the Trial Chamber’s first instance Judgement failed to reflect the true course of events and participants, in the meaning expounded by the Defence herein but also that the Prosecution inaccurately and erroneously interpreted the Trial Chamber’s factual findings.

244. The Prosecution’s allegation that the Accused Simatović had any kind of influence and role in forming the Unit, commanding the Unit, deploying the Unit, financing the Unit and facilitating the Unit’s participation in the aforesaid operations in Bosanski Šamac and Doboj is entirely unfounded and unsubstantiated by evidence.

245. Firstly, Simatović evidently had no influence or role whatsoever in forming the Unit, and hereinabove we provided evidence proving how and when it was established. Even if it were true that the Unit was formed before 1993, it still remains unclear where the evidence is, to prove that Simatović had any part in or influence on the formation, deployment and financing of this Unit.

246. Earlier we already elaborated on the events that took place in Doboj and clearly proved that Simatović had nothing to do with these events. If it were true that this Unit existed and that it took part in the events in Doboj, then the question is on what grounds does the Prosecution claim that Simatović had any role in the deployment of the Unit in Doboj and facilitating the Unit’s participation in the takeover of Doboj or the financing of the Unit?

247. Simatović neither organized, nor commanded, nor financed the Training Center in Ozren, nor did he have any other role in the Ozren Training Center. There is absolutely no evidence that Simatović had any role in the

Case No. IT-03-69-A 90 9 December 2013 PUBLIC REDACTED VERSION 1179

formation and financing of this Center, in providing training, or in its functioning in general, and, moreover, the Defence contends that the Prosecution failed to prove beyond reasonable doubt that the Training Center in Ozren is in any way connected to the Serbian DB, or that this Centre even existed in this capacity. Unreliable evidence, such as a witness statement that Simatović had once visited Ozren, does not prove with certainty that this visit ever took place, given the time lapse between the alleged event and the witness statement in this case, and is therefore absolutely unacceptable. 287

248. Simatović had no role in the takeover of Bosanski Šamac either. The Defence already detailed the circumstances under which the event took place and the forces that participated in the takeover of Bosanski Šamac . The Prosecution’s allegation that Simatović was involved in the takeover of Bosanski Šamac is absolutely unfounded. Simatović had no influence whatsoever on the events in Bosanski Šamac, and no authority over the forces that took part in the takeover of Bosanski Šamac, including the small group of volunteers that we mentioned herein. Even if the entirely unreliable statement of witness JF-047 were to be accepted as true, it still does not confirm that Simatović had any kind of relevant connection with or influence on these events.

249. In its Appeal, the Prosecutions suggests that the Trial Chamber’s finding indicates that Simatović organized the meeting at Pajzoš, at which he personally informed the Unit about its deployment to Bosanski Šamac, and that he was the one who facilitated the Unit’s involvement in the takeover of this municipality. The Prosecution adds that Simatović organized the training of the members of Unit at the Pajzoš camp.288

250. The Prosecution erroneously derived this conclusion from the aforesaid unreliable statement of witness JF-047, who in reality only stated that Simatović arrived at Pajzoš before their departure to Bosanski Šamac and

287 Ibid, paras. 1106-1127; 288 Prosecution Appeal Brief, para. 158; Case No. IT-03-69-A 91 9 December 2013 PUBLIC REDACTED VERSION 1178

told the people he saw for the first time that they were going to Bosanski Šamac. If this allegation were indeed to be true, it still does not provide grounds to conclude beyond reasonable doubt that Simatović first organized the meeting at Pajzoš, and then deployed the Unit to Bosanski Šamac or that he facilitated the involvement of this Unit in these events. Neither this witness’ statement, nor any other evidence provides grounds to conclude that Simatović either organized or financed the deployment of the Unit to Bosanski Šamac.

251. In particular, it is still unclear on the ground of what evidence does the Prosecution base its conclusion that Simatović was supporting the Unit.

252. Hence, it is evident that there is no evidence in the case files that supports this conclusion of the Prosecution. However, even if these allegations were true, the ensuing logical question would be: on the grounds of what evidence does the Prosecution claim that the purpose of forming the Unit and deploying it in the areas where the Serbs fought to ensure dominion, of providing the Unit with funding, arms and training, was to aid and abet the Unit in the perpetration of crimes.

253. The Defence contends that the struggle of the Serbian population for dominion in an area they had inhabited for centuries as the majority population was legitimate. Providing support to the war efforts to achieve this goal is also legitimate. This is why Simatović’s actions have to be assessed in relation to crimes committed and not in relation to the struggle for dominion, i.e. the warfare. As mentioned earlier, decision in this case were made based on circumstantial evidence, and an alternative logical inference would be that any assistance and support that Simatović might have provided, would have been directed towards supporting the war efforts and the struggle for dominion. Hence, the Trial Chamber rightly concluded that Simatović’s criminal liability for aiding and abetting cannot be established beyond reasonable doubt.

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254. In its Judgement, the Trial Chamber also determined the position and powers of the Accused. The Trial Chamber rightly established that, in the period relevant to the Indictment, Simatović first worked as an operative in the DB Second Administration in Belgrade, with the title of [REDACTED]. Subsequently, in April 1992, he was appointed to the post of [REDACTED] under the title of Senior Inspector. From May 1993, Simatović was a [REDACTED], also with the title of [REDACTED]. At the time, the Service had [REDACTED] in total. Taking into consideration Simatović’s career path in the Service, his position and title, the Trial Chamber rightly concluded that it is unable to infer from these findings alone that he was responsible for certain acts attributed generally to the Serbian DB. 289

255. The Trial Chamber established implicitly that Simatović’s position and title in the DB were such that he could not have made the decision to establish the Unit, and that he could not have influenced that decision either. Furthermore, in the position that he held at the time, Simatović could not have deployed the Unit, or dispatched it to the field anywhere. In that position, Simatović could not have financed and/or made any decisions with regard to financing the Unit, nor could he have equipped the Unit. Simatović spent his entire working life in the DB as [REDACTED], and therefore he could not have commanded the Unit. After all, as we already noted, the Trial Chamber accurately established the tasks that Simatović performed within the DB, the positions he occupied and the titles he held. It is therefore evident that Simatović had no connection with the Unit other than in providing [REDACTED] when requested to do so, as we already noted.

256. In the light of the conclusion that the actus reus of aiding and abetting was not fulfilled, the Trial Chamber rightly desisted from considering whether Simatović possessed the mens rea required for aiding and abetting the crimes in Bosanski Šamac and Doboj. However, in its Appeal Brief the Prosecution suggests that the evidence in the case file demonstrates that Simatović knew, in the sense of awareness of the probability, that the Unit would commit

289 Judgement, paras. 1283-1286; Case No. IT-03-69-A 93 9 December 2013 PUBLIC REDACTED VERSION 1176

murder, deportation, forcible transfer and persecution during the Bosanski Šamac and Doboj takeovers in 1992 and that his acts would assist in the commission of those crimes.290

257. Herein, the Defence thoroughly examined the law and case law with regard to mens rea for aiding and abetting. At this point we reiterate that the mere knowledge standard referred to by the Prosecution is not applicable, because the international common law has rejected this standard in favor of a by far more acceptable purpose-aim standard..

258. However, even if we were to apply the knowledge standard, the Prosecutor would still have great difficulties in indicating evidence that proves beyond reasonable doubt that Simatović knew, in the sense of awareness of the probability, that the Unit would commit the aforesaid crimes and that his acts would assist in the commission of those crimes.

259. The Prosecution’s difficulties in identifying and indicating evidence that would prove beyond reasonable doubt that Simatović possessed the knowledge, in the aforesaid sense, are evident in the Appeal Brief itself. In fact, when addressing the issue of the takeover of Bosanski Šamac and Doboj, the Prosecution practically exclusively analyzes evidence related to Stanišić’s knowledge. 291 The generalized and arbitrary statement that the same findings can be applied with respect to Simatović is unacceptable. All the more as the previous evidence with regard to Stanišić is not applicable to Simatović, considering Stanišić’s position, influence and wide circle of police, military and political structures that he communicated with.

260. Hence, it is evident that the Prosecution has difficulties in establishing Simatović’s mens rea in aiding and abetting the crimes committed in Bosanski Šamac and Doboj, even when applying the knowledge standard.

290 Prosecution Appeal Brief, para. 163 291 Ibid, paras. 164-167; Case No. IT-03-69-A 94 9 December 2013 PUBLIC REDACTED VERSION 1175

261. In the Prosecution Appeal Brief, the Prosecution further reminds the Appeal Chamber that the Trial Chamber found that the SAO Krajina Police and TO committed murder, deportation and persecution (based on murder and forcible displacement) of non-Serb civilians in the SAO Krajina between April 1991 and the end of 1994.292 Though the Trial Chamber found there were certain links between the accused and the groups like the SAO Krajina Police, those links were, according to the findings of the Trial Chamber, insufficient to conclude that the accused aided and abetted the crimes committed by the SAO Krajina Police and TO in SAO Krajina,293 the Prosecution believes that in the light of the findings of the Trial Chamber no reasonable Trial Chamber would have found that the accused did not substantially contribute to the crimes committed by the SAO Krajina Police and TO.294

262. The Defence would like to reiterate here that the Trial Chamber did not err when it found that certain links between Simatović and some groups in Krajina were not, on their own, sufficient to impose as the only reasonable conclusion that Simatović aided and abetted the crimes of these groups. Even if all findings of the Trial Chamber, with which the Defence does not agree entirely (but did not have any legal interest to contest them), were absolutely true, it would still be possible to come to an alternative reasonable interpretation of Simatović's acts that those links were established and directed to support the war efforts of Serbs in SAO Krajina, that is, the efforts to ensure dominion on the territory, not to aid the commission of crimes.

263. Throughout the proceedings, the Prosecution had to offer clear and unambiguous evidence that Simatović’s actions in Krajina, during a very limited period (April 1991-August 1991), were specifically directed at aiding and abetting the commission of crimes for which he is charged by the Indictment. It is clear that the Prosecution, for lack of such evidence, prefers

292 Prosecution Appeal Brief, para. 171; 293 Ibid, para. 172; 294 Ibid, para. 173; Case No. IT-03-69-A 95 9 December 2013 PUBLIC REDACTED VERSION 1174

the broadest possible test for establishing responsibility for aiding and abetting.

264. Simatović stayed in Knin during a period of two to three months between May 1991 and August 1991. During that period he did have some contact with members of these groups in SAO Krajina, but the nature of those contacts does not indicate that any of his activities were directed at aiding and abetting the commission of crimes. Furthermore, no crimes were committed during Simatović’s in Knin, and he could not have known about them.

265. The Prosecution in its Appeal Brief erroneously suggests to the Appeal Chamber that the findings of the Trial Chamber lead to the conclusion that the accused worked in coordination with Martić in establishing, financing, arming and equipping the SAO Krajina Police. It further claims that the accused organised training for the SAO Krajina Police and TO. The Prosecution finally claims that Simatović also supplied them with communication equipment.295

266. The Defence would like here to refer the Appeal Chamber to the indisputable evidence that confutes beyond reasonable doubt the Prosecution’s aforementioned claims.

267. The Golubić Centre was established at the end of 1990 and beginning of 1991. The Centre was reconstructed in February 1991 with the materials supplied from depots in Knin, and the reconstruction workers involved were paid by their employers. The requests for materials for the reconstruction were drawn and signed by Martić, Dmitrović and Zelenbaba. The funds for reconstruction and work of the Centre were supplied at the local level296.

268. Martić gathered a group of men into a special police unit established at the beginning of 1991. Martić was the first leader of that unit, which was later taken over by a local police officer, [REDACTED]. [REDACTED] organised all the unit’s activities in agreement with Martić. This special unit of MUP

295 Ibid, para. 174; 296 Simatović Final Trial Brief, paras. 35-37; Case No. IT-03-69-A 96 9 December 2013 PUBLIC REDACTED VERSION 1173

Knin was composed of local members and was positioned in Golubić since its formation, i.e. since the reconstruction of the camp. 297 It is clear, therefore, that the Golubić Centre existed long before Simatović arrived in Knin and Simatović could not have possibly participated in establishment of either the Golubić Camp or the SAO Krajina special MUP unit.

269. Immediately after the creation of SAO Krajina, Milan Martić issued a decision concerning its financing and the allocation of funds from the financial system of the Republic of Croatia. Until December 1990, the police in Knin was being paid by Zagreb. Subsequently, the reserve police staff was paid by the companies in which they were employed, while the active police was paid from donations, either in money or in food products. The funds for the police were being raised in villages and companies in Krajina. Martić and his associates decided how the collected funds would be distributed. It was also financed by donations from abroad. There is material evidence in the form of receipts concerning the financing of the police by donations from Germany. The Serbian Ministry of Defence financed TO SAO Krajina through the Payment Operations Service in Knin and through commercial banks. The budget deficit of Republika Srpska Krajina (RSK) was covered by the National Bank of Yugoslavia, and the agreement on covering the deficit was made between Slobodan Milošević and a representative of the Krajina Government. Martić contacted the Serbian Minister of Interior, Zoran Sokolović, and asked that the money for the needs of RSK MUP be disbursed. The FRY transferred funds to the SAO Krajina, 298 but these funding translations were far above the level of Simatović’s position during the period relevant for the Indictment.

270. Simatović had no contact with top ranking state officials. Simatović was far below these people in the state hierarchy of Serbia and the FRY. Simatović did not belong to the circle of people who discussed and made decisions on any aspect of state policy, let alone financing. He had no such authority within the Serbian DB either. The position that Simatović occupied

297 Ibid, paras. 38-52; 298 Ibid, paras. 53-68; Case No. IT-03-69-A 97 9 December 2013 PUBLIC REDACTED VERSION 1172

rules out that he could have had any financial means that could have been used to finance “Serb forces”.

271. Simatović played no role in arming these groups in SAO Krajina. In the second half of 1990, large quantities of weapons were sold in Krajina by local authorities. The arms of the TO on the territory of Croatia were taken over by the JNA, which had numerous depots in the area of Zadar, Šibenik and Knin. There was a JNA depot in Golubić, too. The arms from the TO depot were distributed by decision of the Serb National Council. The police officers who left the Croat police stations brought weapons with them. The people that were mobilised in Knin by the local police were armed with JNA automatic rifles. In August-October 1991, 20,000 pieces of various arms were distributed in Krajina by the JNA. Senior army officer [REDACTED] stated that the JNA distributed at least 35,000 pieces of arms in Kninska Krajina.299

272. It is clearly evident that Simatović played no role in the supply of arms, and that any decision concerning the supply of arms in Krajina was far above his position. Supply of arms is also in contradiction with Simatović’s [REDACTED] activities and position in DB, which the Trial Council established.

273. Therefore the claims by the Prosecution that the Trial Chamber erred in finding that certain links between Simatović and some groups, such as SAO Krajina Police, were not sufficient to conclude beyond reasonable doubt that Simatović aided and abetted the crimes in SAO Krajina, are unfounded.

274. In its Appeal Brief, the Prosecution goes on to suggest the proximity of the accused to the crimes and the perpetrators. Based on all the evidence presented, it is unclear where the Prosecution found the proximity of the accused to the crimes and the perpetrators. As we already stated, Simatović staid in Knin from May 1991 to August 1991 and witnessed no crime. Simatović did not see or have any information that any person he was in contact with committed a crime or was about to commit a crime.

299 [REDACTED]; Case No. IT-03-69-A 98 9 December 2013 PUBLIC REDACTED VERSION 1171

275. Simatović did not cooperate closely with Martić, nor did he have information on any crime prior to his arrival in Knin. Consequently, Simatović could not have been aware of Martić’s criminal intent.

276. As in parts concerning Bosanski Šamac and Doboj, the Prosecution supports its claims concerning crimes in SAO Krajina by actions and conduct of the accused Stanišić, and then informs the Appeal Council that the same can be equally applied to Simatović.300 As we already stated, in the case of individual criminal responsibility, acts and omissions of each individual accused must be substantiated, particularly in view of the fact that the accused Simatović had a much lower rank, position, and political influence compared to the accused Stanišić. Hence when the Prosecution talks about Stanišić’s potential role in establishing, financing, arming and equipping Golubić training camp, the substantial above-mentioned differences between the accused need to be borne in mind. Simatović Defence does not by this imply in any way that Stanišić had any role in the activities mentioned above.

277. The Prosecution, however, adds that Simatović personally participated in some actions in which Martić acted with the intent to commit crime, such as in Lovinac, Glina and Struga.301

278. The Defence contends that Simatović was not in any way involved with the attack on Lovinac, which was in the vicinity of the JNA's largest depot in Lika. This depot was placed under a blockade by Croat forces when the JNA decided to break the blockade. The blockade was broken by the Knin Corps forces. Mladić wrote in his diary about the action to lift the depot blockade. As a consequence of war activities, the population of Lovinac fled. There is no mention of Simatović in Mladić's diary, and it can be concluded without doubt that this attack was planned and conducted by the JNA.302

279. The Defence also claims that Simatović had no links with activities in Glina and Struga, and hence could not have received knowledge that Martić

300 Prosecution Appeal Brief, paras. 179-81; 301 Ibid, para. 181; 302 Simatović Final Trial Brief, paras. 223-226; Case No. IT-03-69-A 99 9 December 2013 PUBLIC REDACTED VERSION 1170

acted with the intent to commit crimes. The action in Glina in the summer of 1991 was a military action under the command of the JNA. Captain Dragan and his “Knindžas“, who were coordinated by the JNA, also participated in the action303. No crimes were committed in this action, and Simatović did not have any knowledge that any crimes were committed in this action or in the Struga operation.

Conclusion on Ground Two

280. Having regard to the above, it can be unequivocally concluded that no act or omission of Simatović contributed substantially to the commission of crimes. No action of Simatović was directed specifically at aiding and abetting a crime. Simatović also did not demonstrate either physical or moral proximity to the crimes or to their principal perpetrators. This conclusion is clearly evident both from a holistic evaluation and a narrow evaluation. This is the only reasonable conclusion that can be derived from the entire body of facts. At the very least, bearing in mind everything the Defence stated above, these conclusions are alternative reasonable inferences to those presented by the Prosecution in its Appeal Brief.

281. Simatović also did not possess the necessary mens rea for aiding and abetting the crimes committed in the SAO Krajina by the SAO Krajina Police and the TO. Prosecution Ground Two should be dismissed in its entirety.

303 Ibid, paras. 326-328; Case No. IT-03-69-A 100 9 December 2013 PUBLIC REDACTED VERSION 1169

GROUND THREE OF THE PROSECUTION APPEAL

i. Stanišić and Simatović significantly contributed to the implementation of the common criminal purpose in Sanski Most in 1995

282. The Prosecution submits that, based on evidence and findings of the Trial Chamber, it has been established beyond reasonable doubt that Stanišić and Simatović contributed significantly to the implementation of the common criminal purpose in Sanski Most. According to the Prosecution, they funded and deployed Arkan in Sanski Most in 1995. JCE members used Arkan and the SDG to cleanse Sanski Most of non-Serbs.304

283. The Prosecution further submits that the Chamber erred by viewing the evidence of the SDB's control over or assistance to Arkan and the SDG during its deployment to Sanski Most in isolation.305 The Prosecution further submits that in the period between 1991 and 1993, the SDG committed numerous crimes against the non-Serb civilians in SBWS, Bijeljina and Zvornik, under the direction and/or support of the SDB. The Prosecution further emphasizes that the accused must have known about this.

284. The Defence notes that the Prosecution Appeal Brief is contradictory and completely unclear in this part. In fact, the Prosecution does not appeal the Trial Chamber’s finding that Franko Simatović is not liable, on any count, for any of the crimes allegedly committed by the SDG before 1995 in SBWS, Bijeljina and Zvornik, but on the other hand the Prosecution requests that the Appeal Chamber declare Simatović liable for aiding and abetting the crime in Sanski Most, because in the light of Stanišić's prior knowledge, he must have been aware of the probability that the SDG would commit crimes of

304 Prosecution Appeal Brief, para. 244 305 Ibid, para. 245; Case No. IT-03-69-A 101 9 December 2013 PUBLIC REDACTED VERSION 1168

persecution and murder.306 How could have Simatović been aware, based on someone else’s knowledge about past crimes, that these crimes could be committed again?

285. Once again, here the Defence reiterates its disagreement with a number of factual findings of the Trial Chamber, but considering that Simatović was acquitted of all charges in the Indictment, there was no legal interest in challenging these findings of the Trial Chamber. Whilst noting that this response is not the appropriate instrument to argue against such findings of the Trial Chamber, the Defence indicates that the Prosecution relies on the testimony of a completely unreliable and untrustworthy witness, JF 057. In addition to the fact that his witness statements and testimony are inconsistent, extremely contradictory and illogical, in [REDACTED]307, [REDACTED] 308).

286. The Defence notes that there is no evidence to connect Simatović with the events in Sanski Most, except for the testimony of the above mentioned unreliable witness (JF-057), whose testimony cannot be considered true and authentic under any circumstances. When questioned by of the Prosecutor as to who gave orders to Arkan to take part in the Banja Luka (Sanski Most) operation, the witness replied: “Arkan never-I mean, he always said it was MUP of Serbia which it could be Frenki or anybody else.”309

287. When questioned by the Defence: “Do you know anything about the role played by Mr. Franko Simatović Frenki in the operation in Banja Luka and Sanski Most?", the witness replied: “No.”310

306 Ibid, para. 274; 307 [REDACTED]; 308 [REDACTED]; 309 Ibid, para. 682; tt. 9380; 310 Ibid, para. 682; tt. 9489; Case No. IT-03-69-A 102 9 December 2013 PUBLIC REDACTED VERSION 1167

288. Extensive evidence in the case files clearly indicates that Simatović had nothing to do with organising, sending and funding Arkan and his SDG in connection with the operation in Banja Luka and Sanski Most in September 1995.

289. Arkan and the SDG were sent to Banja Luka as members of the RSK Army under the command of the 11th Corps. Witness Pelević, Arkan’s first deputy in the SDG, confirmed this. Numerous written exhibits confirm that the SDG went to Banja Luka from Erdut as a RSK Army battalion. The SDG also had [REDACTED] in November 1995.311

290. The witness of the Prosecution JF-010 confirmed that Arkan came to area of Sanski Most in 1995 on invitation by the top echelon of the SDS. Pelević testified that the SDG consisted of 200 fighters and that they fought in the Banja Luka operation under the command of General Talić, commander of the 1st Krajina Corps, who commanded the defence against the attacks of the Muslim and Croat forces. The SDG closely collaborated with the special police brigade of Republika Srpska. Arkan took orders from the Minister of the Interior of Republika Srpska, [REDACTED], with whom he was in close friendly relations. From Radovan Karadžić, the President of Republika Srpska, Arkan received a thank-you note for taking part in the defence of the Banja Luka Krajina. Arkan was decorated by Radovan Karadžić in 1996 for his contribution to the defence of the Republic of Srpska.312

291. Bearing in mind the above mentioned evidence and the position and the title that Simatović held in the SDB, it is unclear what kind of evidence the Prosecution has to support their claim that Simatović had the authority to organise salaries and medical care for SDG members.

292. The Prosecution contradicts itself again when stating that Stanišić and Simatović facilitated the SDG's involvement in Operation Pauk, only to

311 Ibid, paras. 605-610; 312 Ibid, paras. 611-623; Case No. IT-03-69-A 103 9 December 2013 PUBLIC REDACTED VERSION 1166

immediately afterwards emphasise that the Trial Chamber found that it was actually Stanišić who took part in preparatory meetings with high-ranking officials including Mladić and Perišić. Evidently, the Trial Chamber also found that Simatović had no capacity to facilitate even his own participation, let alone the participation of the SDG.

293. Just as he was unable to facilitate the participation of the SDG in the Operation Pauk, Simatović was also unable to facilitate the participation of the SDG in Treskavica in July 1995. In this regard the Defence included the passport in the case files, along with other evidence showing that, at the time of Operation Treskavica, [REDACTED].313

294. There is not a single piece of evidence in the case files to prove that Franko Simatović supplied SDG members with ammunition and uniforms.

295. Particularly false and contradictory is the statement of the Prosecution that the evidence considered at trial illustrates a pattern of interactions between the accused and Arkan.314

296. The evidence in this case, which we pointed out herein, clearly shows that Arkan was in the theatre of operations in the area of Banja Luka (Sanski Most) for the entire duration of Operation Banja Luka. The case files also conclusively prove that Franko Simatović was not in the area of Banja Luka (Sanski Most) at that time, but in Belgrade. Relying on the aforementioned unreliable witness, JF-057, the Prosecution erroneously notes that while he was in Sanski Most, Arkan met with Simatović three times a week on average. JF-057’s testimony is evidently false, just as false and contradictory as his statement that Arkan received orders by telephone from the Serbian Interior Ministry and Frenki.

313 [REDACTED]; [REDACTED]; 314 Prosecution Appeal Brief, para. 246; Case No. IT-03-69-A 104 9 December 2013 PUBLIC REDACTED VERSION 1165

297. Finally, we repeatedly directed the Appeals Chamber’s attention to the fact that Simatović did not have the authority, either by his position or title, to provide financial support for the involvement of the SDG anywhere, and hence not in Sanski Most either.

298. Having regard to all of the above, the Prosecution's request that Simatović be found guilty of the crimes in Sanski Most, that is, for his significant contribution to the implementation of a common criminal purpose in Sanski Most, should be denied.

ii. Stanišić and Simatović aided and abetted crimes in Sanski Most

299. The Defence already indicated the evidence that shows beyond reasonable doubt that Simatović, by his position and title, as well as the scope of his activities and tasks, could not have proposed, let alone approved and provided financial support to anyone, and consequently not to the SDG either.

300. As we already mentioned herein, extensive evidence proves that Simatović, apart from not having the authority to deploy anyone, let alone the SDG, had no role in the deployment of the SDG in Sanski Most either.

301. At the time of Arkan’s stay in Sanski Most, Simatović had no contact with him, just as he had had no contact with him before that. Simatović did not communicate with Arkan, either by telephone or in person.

302. Simatović never supplied SDG members with ammunition and uniforms.

Case No. IT-03-69-A 105 9 December 2013 PUBLIC REDACTED VERSION 1164

303. The Defence has offered extensive solid and reliable evidence in support of all of the above arguments, which it included in its Final Trial Brief.315

304. Hence, the Prosecution’s claim that Simatović provided vital support and facilitated Arkan’s and the SDG’s deployment in Sanski Most, having known about their disposition to crime and their past crimes, is not supported by the evidence of the case. It is clear that Simatović did not take actions specifically directed at committing a crime.

305. As we have already mentioned herein, the Prosecution does not charge Simatović with crimes committed by the SDG before 1995 (in 1991 and 1992 in the SBWS, Bijeljina and Zvornik), however, in this part of its Appeal Brief, the Prosecution wrongly and groundlessly imputes knowledge of these crimes to him. At the same time, the Prosecution does not seem to be concerned by the fact that there is no reliable evidence for such a claim. In conclusion, Simatović could not have been aware of the probability that the SDG would commit crimes in Sanski Most.

306. It is also not clear whether the Prosecution is suggesting that at the time of Arkan’s stay in Banja Luka he saw Simatović almost every day or three times a week on average.316

307. The Defence dismisses the Prosecution’s argument that Simatović was aware that by facilitating the deployment and financing the SDG's involvement in Sanski Most he would assist Arkan and the SDG to murder and persecute non-Serbs there.

308. Simatović did not aid and abet the crimes committed by the SDG in Sanski Most.

315 Simatović Final Trial Brief, part four, Željko Ražnatović Arkan and Serbian Volunteer Guard, paras. 402-706 316 Prosecution Appeal Brief, para. 274; Case No. IT-03-69-A 106 9 December 2013 PUBLIC REDACTED VERSION 1163

iii. Conclusion on Ground Three

309. Ground three on the Prosecution Appeal should be dismissed in its entirety.

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FINAL CONCLUSION

310. The Defence points of out that none of Prosecution’s challenges show that the Trial Chamber committed any error, factual of legal, warranting appellate intervention. The Defence opposes all allegations in Prosecution Appeal Brief. 311. Prosecution’s Appeal should be dismissed in its entirety.

Respectfully submitted,

Counsel for the Accused:

______Mihajlo Bakrač, Lead Counsel Vladimir Petrović, Co-Counsel

Belgrade, 9 December 2013 Word Count: 31195

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