311. There was no dispute between the parties that, upon the commencement of Krivaja 95 on 6 July 1995, General Krstic was Chief of Staff of the Drina Corps. There was, however, a fundamental disagreement as to the precise time at which General Krstic assumed the role of Commander of the Drina Corps. The Prosecution argued that General Krstic assumed the role of Commander of the Drina Corps at around 2000 hours on 13 July 1995, at which time the mass executions of Bosnian Muslim men had commenced. The Defence denied this, and stated that General Krstic did not take over as Commander of the Drina Corps from General @ivanovi} until 20 or 21 July 1995, at a special hand-over ceremony at the Han Kram restaurant. General Mladic arrived in a helicopter with General Tolimir and read out a decree issued by President Karad`i}, thereby placing General @ivanovi} at the disposal of the Main Staff, appointing General Krstic as Commander of the Drina Corps and appointing Colonel Andri} as Chief of Staff of the Drina Corps.818 By this time all of the executions had already occurred. However, even on the Defence version of events, General Krstic was Commander of the Drina Corps in September and early October 1995 when the bodies of executed Bosnian Muslim men were removed from primary graves to more remote secondary mass gravesites.819
(a) The Evidence
312. The Prosecution relied both on documentary evidence and eyewitness evidence from two individuals, who were members of the Drina Corps in July 1995, to support its claim that General Krstic took over command of the Drina Corps on 13 July 1995. One of these individuals, Witness II, testified that, on the day prior to the commencement of the @epa operation820 (which began on 14 July 1995) he and General Krstic travelled to Viogora where General Krstic addressed the troops assembling for @epa.821 Afterwards, they returned to the Drina Corps Command Post in Vlasenica where General Mladic had already begun assembling all the officers present. General Mladic then
817 Krstic, T. 6309-6311.
818 Krstic T. 6263-6266.
819 See the discussion supra para. 78.
820 Witness II, T. 9128, 9131.
821 Witness II, T. 9128.
appointed General Krstic as Corps Commander.822 The time of the ceremony was between four and six in the afternoon.823 However, Witness II was unsure about exactly when the appointment of General Krstic as Corps Commander became effective.824 Witness II was quite clear, however, that
“at @epa…everybody addressed General Krstic as Commander, meaning Corps Commander.”825 313. The account given by Witness II was largely corroborated by the statement “OA” made to the OTP on 29 March 2000. “OA” said that in the afternoon of 13 or 14 July 1995, General Mladi}
assembled all those present at the Drina Corps Headquarters in Vlasenica and announced that, from that very day, General Krstic had assumed the role of Corps Commander and that General
@ivanovi} was retiring. At the same time, General Mladi} appointed Colonel Andri} as Corps Chief of Staff.826 “OA” thought that the transport of the Bosnian Muslim population from Poto~ari was still going on at the time the ceremony took place,827 which lends some support to the proposition that the ceremony must have taken place on 13 July 1995. The Trial Chamber notes, however, that “OA’s” statement was not tested under cross-examination and, therefore, the weight attributed to it must be reduced accordingly. However, an intercepted conversation at 1822 hours on 13 July further supports the presence of General Krstic at the Drina Corps Headquarters in the company of General Mladic828 and is consistent with the evidence of both Witness II and “OA”.
314. Although the parties agreed that official documentation regarding the hand over process must have been completed, neither party was able to produce this vital piece of paper during the main trial. It was only after the Defence surrebuttal case had been completed in April 2001 that the Prosecution finally managed to secure, from General @ivanovi}, documentation relating to the appointment of General Krstic as Commander of the Drina Corps. The document supported the Prosecution’s claim that General Mladic had indeed appointed General Krstic as Corps Commander during a ceremony at Drina Corps headquarters on the afternoon of 13 July 1995 and that General Krstic assumed his new role of Corps Commander at that time.829
315. The Defence, while not disputing the authenticity of the stamp or signature on the document,830 argued that the document could not be viewed as evidence that General Krstic assumed the position of Corps Commander on 13 July 1995. General Radinovi} concluded it was
822 Witness II, T. 9129.
823 Witness II, T. 9171.
824 Witness II, T. 9167.
825 Witness II, T. 9167.
826 P 886.
827 P 887; and P 886.
828 P 458.
829 P 905.
830 T. 9676.
possible that the document “was created by General @ivanovi} at the time for some unofficial purpose, or was created after the fact.”831
316. Certainly, there are some inconsistencies in the 13 July 1995 handover document. Foremost amongst these is the fact that the document states that the handover was carried out pursuant to “the Decree of the President of Republika Srpska”. However, the decree naming General Krstic as commander of the Drina Corps was not issued by President Karadžic until 14 July 1995 and stated it was to take effect as of 15 July 1995. According to Mr. Butler, the Prosecution’s own military expert, under the law in Republika Srpska, President Karadžic was the only person authorised to appoint someone as Commander of the Drina Corps.832 Mr. Butler was unable to explain why President Karadžic would have signed an order to take effect on 15 July 1995 if he actually meant it to take effect on 13 July 1995. General Dannatt speculated that General Mladic had appointed General Krstic as Corps Commander on 13 July pursuant to oral permission from President Karad`i} with written ratification following the next day.833
317. The Trial Chamber is also mindful of Defence evidence that, pursuant to VRS rules and practice, certain formal procedures must be completed before the command of the Corps can be transferred.834 In particular, General Radinovi} argued that official minutes of handover (bearing the signatures of General Mladic, General Krstic, and General @ivanovi}) would have to be prepared before General Krstic could acquire the rights and duties attached to the position of Corps Commander.835 However, at least one Defence witness acknowledged that formal procedures for the hand over of duty could be, for good cause, dispensed with.836
318. Consistent with the notion that General @ivanovi} ceased to be Corps Commander some time on the evening of 13 July 1995, the last known order signed by General @ivanovi} in this capacity was sent out at 1730 hours on 13 July 1995.837 The same evening, at 2030 hours, General Krstic issued his 13 July 1995 search order directing units of the Bratunac and Mili}i Brigades and the Skelani Separate Battalion to begin sweep operations in the area of the former Srebrenica enclave.838 General Krstic signed this order with the word “Commander” under his signature. The
831 D 181 (Statement of Prof. Gen. Radovan Radinovi}, dated 26 May 2001, submitted in response to the Prosecutor’s Motion to Reopen), p. 7; Radinovi}, T. 9733.
832 P 406; and Butler, T. 4752.
833 Dannatt, T. 5703-5705.
834 Krstic, T. 7412; Defence Witness DE, T. 7612-7614; Defence Witness DB, T. 7337-7338.
835 Radinovi}, T. 9736-9739.
836 Defence Witness DB, T. 7297. This witness was an officer in the Drina Corps in July 1995 and accepted the possibility that someone may, de facto, assume command prior to the issuance of formal documentation signed by the President.
837 P 462.
838 P 463.
Prosecution argued that, by signing as “Commander”, General Krstic was making a clear statement that he had taken over as Commander of the Drina Corps.839 The following day, the Bratunac Brigade issued an implementing order in response to the search order issued by General Krstic and raised no questions about his authority to direct their activities.840
319. The Defence did not dispute that the 13 July 1995 search order was signed by General Krstic as Commander, but maintained that it was done only in his role as Commander of the @epa operation and not the entire Drina Corps.841 The Prosecutor in turn argued that the normal practice for someone in such a position would be to identify himself as a commander of the particular operative group, not just as Commander.
320. The Prosecution also relied upon the substance of the 13 July 1995 search order to support the claim that General Krsti} had assumed the role of Corps Commander by the time it was issued.
In the opinion of Mr. Butler, this order dealing with search operations in the former Srebrenica enclave had absolutely nothing to do with the @epa operation.842 By contrast, General Krstic testified that the terrain of the former enclave had to be searched before starting towards @epa and that the order therefore formed part of the preparations for the @epa operation that was due to begin on 14 July 1995.843 Certainly, the Trial Chamber heard evidence that the whereabouts of the 28th Division of the ABiH was a matter of great concern to the VRS units preparing for @epa.844
321. The most puzzling aspect of the Prosecution case is that, although the last written order issued by General @ivanovi} in his capacity as Drina Corps Commander was dated 13 July 1995, there is evidence that he continued to exercise some command authority up until 14 July 1995.
General @ivanovi} is heard in a number of radio intercepts on 14 July 1995. At 0910 hours on 14 July 1995 the duty officer of the Zvornik Brigade, Major Jokic, called and spoke to General
@ivanovi}.845 Major Jokic told General @ivanovi} that he had information about a “huge group” of
“Turks” moving towards Velja Glava. General @ivanovi} instructed Major Jokic to inform “Mane”
who had “policemen in Konjevic Polje and Zvornik.” General Zivanovic stated that the Zvornik Public Security Centre would have to handle it as “the Army is busy.” That evening, at 2038 hours, General @ivanovi} told Major Jokic that reinforcements would be arriving in the morning and that Obrenovic (the Zvornik Brigade Chief of Staff) should maintain pressure and reconnaissance activities against the column. During this conversation, General @ivanovi} said “take this as an
839 P 759 (showing both orders side by side for the purposes of comparison).
840 P 464. See also Butler T.4890; and Dannatt T.5644, and Radinovi}, T. 8350-8351.
841 Krstic, T. 6248-6249; Defence Witness DB T. 7335.
842 Butler, T. 4888.
843 Krstic, T. 6686.
844 See the discussion supra para. 303.
845 P 555.
order.”846 The Prosecution hypothesised that, although General @ivanovi} had been relieved of Command by this time, he was still a superior VRS officer. Given that General Krstic appears to have been out of contact on 14 July 1995, the Prosecution argued that General @ivanovi} was stepping in on urgent matters relating to the column.847 Another conversation, recorded at 2056 hours on 14 July 1995, took place between General @ivanovi} and Colonel Vukovic, the commander of the Skelani Separate Battalion. General Zivanovic stated he had received the paper that Blagojevic (the Commander of the Bratunac Brigade) sent and that Colonel Vukovic should read his conclusions.848 In a further conversation, on 14 July 1995 at 2056 hours, an unidentified major was heard to ask “(h)ow can I find out where General @ivanovi} is as I’ve been waiting here for him on his orders since 1700 hours.” The unidentified major was subsequently put through to speak to General @ivanovi} later in the same conversation. He then proceeded to give General
@ivanovi} a briefing on certain events, to which General @ivanovi} responded “excellent.”849 Mr.
Butler was not able to explain why General @ivanovi} continued to play such a prominent role in co-ordinating the work of the Drina Corps if the command had truly passed to General Krstic, although Witness II testified that General @ivanovi} had close ties with people in the area and had remained there for two months or more after he had ceased being Corps Commander.850
322. However, one intercepted conversation at 0935 hours on 14 July 1995 provides a clue that General @ivanovi} was winding up his involvement with the Drina Corps. General @ivanovi} said to the other participant in the conversation “I’m here at the command post but I’m slowly packing my backpack, they’ve [presumably the Main Staff or the Supreme Command] already asked me to go somewhere else…”.851 There is also one radio intercept at 2236 hours on this same date that suggests General Krstic may have been physically present in the area around Srebrenica and that he had been briefed on certain matters. The conversation is between “Malinic” (probably Major Zoran Malinic, the Commander of the Military Police Battalion of the 65th Protection Regiment) and an unidentified individual. The unidentified individual said “Krstic has just come up here. He went back there, he’ll call me later. He’ll look into it, and will assign someone to co-ordinate it…Yes, yes I know…Hey listen, I know. Just take it easy, this is an open line. I’m up to speed…@ivanovi}
told me. Well, in short, now I have told Krle [the shortened name for General Krstic] about that, about what should/be/done. I suggested what he should do, so he’ll do something…”.852
846 P 556.
847 Butler, T. 5049-5051, and 5438.
848 P 558; Butler, T. 5439-5442; and Butler Report, para. 8.25 & fns. 348-349; para. 8.27 & fn.351.
849 P 558.
850 Witness II, T. 9129.
851 Butler Report, para. 8.21 & fn. 342, 343; P 466.
852 P 364/1 (14 July 1995 tab 11).
323. At 0954 hours on 15 July 1995, Colonel Beara, the Security Chief of the Main Staff, was heard in an intercepted conversation asking General @ivanovi} to arrange for some men to be sent to him.853 General @ivanovi} replied that he could not “arrange for that anymore” and told Colonel Beara to call the “Zlatar” (the Drina Corps Command) switchboard at extension 385. A few minutes later, a conversation was intercepted between General Krstic and Colonel Beara during which Colonel Beara repeated the request he had made to General @ivanovi} and asked General Krstic to help him get the men he needed. General Krstic undertook to see what he could do to help Colonel Beara, clearly showing that he had taken over this authority from General @ivanovi}.854 324. Also on 15 July 1995, Colonel Ignat Milanovi}, the Drina Corps Chief of Anti-Aircraft Defence, sent a report to General Krstic at the FCP, proposing the appointment of Colonel Blagojevi}, the Commander of the Bratunac Brigade, to co-ordinate forces operating in the vicinity of the Bratunac-Konjevi} Polje-Mili}i Road.855 Under cross-examination, General Krstic agreed that he had accepted this proposal.856 Subsequently, on 16 July 1995, Colonel Blagojevi} sent a report stating that he had visited the units involved and organised their joint action, again demonstrating that General Krstic was exercising command competencies in relation to Drina Corps units operating back in the Srebrenica area.857
325. In the days following 15 July 1995, General Krstic is noted issuing orders about matters clearly unrelated to the @epa operation, further confirming his role as Corps Commander. On 17 July 1995 General Krstic signed an order relating to mobilisation issues as Commander.858 At 0615 hours on that same day, General Krstic had a conversation with Captain Trbi}, who was acting as duty officer for the Zvornik Brigade, and then Colonel Pandurevi}, the Commander of the Zvornik Brigade.859 During the course of the conversation, General Krstic acknowledged he had received reports sent by the Zvornik Brigade about the situation back in its zone of responsibility and that he had personally received an update from the Brigade Commander. In a further intercepted conversation, on 17 July 1995 at 0910 hours, General Krstic urgently ordered Lieutenant Colonel Vla~ic (who was temporarily acting as Chief of Staff of the newly formed 4th Drinski Light Infantry
853 P 472.
854 P 478.
855 P 537.
856 Krstic, T. 6695-6696.
857 P 539.
858 P 481. The Trial Chamber does not accept the explanation put forward by General Krstic that, although dated 17 July 1995, this document was signed, on about 22 or 23 July, after his return from the @epa operation. See Krstic, T.
6729-6730, 7361-7362.
859 P 650
Brigade deployed in the area of the Sarajevo Romanija Corps860) to return to his unit (the Bira}
Brigade).861 This demonstrates that General Krstic was taking responsibility for matters unconnected to the @epa operation. Finally, on 19 July 1995 at 0812 hours, Colonel Pandurevi}, the Commander of the Zvornik Brigade, was heard in conversation with Colonel Cerovi}, the Drina Corps Assistant Commander for Moral, Legal and Religious Affairs. Colonel Cerovi} informed Colonel Pandurevi} that in accordance with an order issued by General Krstic there could be no shift rotations for the Sarajevo-Romanija Corps, again a matter that appears to be unconnected with the @epa operation, and the Defence did not seek to provide an explanation to the contrary.862 326. On 17 July 1995, a typed document was sent by the Bratunac Brigade, discussing a date for a farewell ceremony for General @ivanovi} on 23 June (probably meant to read 23 July). The document was originally written by hand and dispatched on 14 July 1995 to the communications centre to be typed and distributed., 863 The document reads:
(w)e wish to inform you that we shall be able to secure the presence of the Command and representatives of the municipal authorities for the official farewell for General @ivanovi}, hitherto commander of the Drina Corps…
Also on 17 July 1995, General @ivanovi} himself issued an announcement relating to the “send-off”
lunch-time gathering planned for him at the Jela restaurant in Han Kram on 20 July 1995.864 While the title of the document was “Send-off ceremony for the corps commander, announcement” the body of the document again referred to General @ivanovi} as the “hitherto corps commander”. The parties strenuously debated whether the use of the word “hitherto” indicates that, at the time these documents were written (14 July and 17 July respectively), General @ivanovi} was no longer the Commander of the Drina Corps; a dispute that was complicated by translation ambiguities.865 Certainly though, General @ivanovi}’s signature on the document he issued on 17 July 1995 did not include any reference to him being Corps Commander. By contrast, documents issued by General
@ivanovi} prior to 13 July show that his signature invariably included a reference to his position as Commander of the Drina Corps.
860 P 652.
861 P 652.
862 P 694. See also P 677 (intercepted conversation at 0712 hours on 18 July 1995 between General Krstic and Colonel Veleti} discussing matters outside the Corps zone); and P 680 (intercepted conversation on 18 July 1995 at 0716 hours between General Krstic and Colonel Cerovi}, in which General Krstic directs Colonel Cerovi} to go to a location that appears to be unconnected with @epa and orders him to assume command when he gets there.)
863 P 467; and Butler, T. 44896-4899.
864 D 181/5.
865 General Krstic (Krstic, T. 6720-6721) and General Radinovi} (Radinovi}, T. 8353, 8450-8451) both testified that the term used in the original Serbian version of the document does not mean that @ivanovi} was no longer the commander of the Drina Corps. The Prosecution obtained an official statement from the Tribunal translation service confirming that the correct English translation for the word was “hitherto”. See T. 8356.
327. A number of Defence witnesses attested that General Krstic did not take over as Corps Commander until around 20 July 1995.866 Witness II, while confirming that he and General Krstic did go to the Han Kram restaurant sometime during the course of the @epa operation, was unsure as to the nature of the ceremony that General Krstic attended there.867 The Prosecution suggested that this event at the Han Kram restaurant was simply a farewell lunch for General @ivanovi}.868
(b) Conclusions
328. The conflicting evidence reveals that, from early July 1995, General Krstic began to assume more and more de facto responsibility within the Drina Corps. As discussed in further detail below, he was the person primarily directing Krivaja 95 from the Drina Corps Forward Command from 6 July 1995, at least until General Mladi} arrived on 9 July 1995.869 Further, while General
@ivanovi} attended the first meeting at the Fontana Hotel with General Mladi} on 11 July 1995 at
@ivanovi} attended the first meeting at the Fontana Hotel with General Mladi} on 11 July 1995 at