130513IT

Page 60

1 grounds of appeal. What we will be presenting today will be the matters

2 we believe have not been clarified yet and answers to the questions asked

3 in the additional order of the Appeals Chamber. Bearing in mind the

4 restrictions in time and the large number of facts and data that we will

5 have to refer to, we decided to ask you for permission for our two legal

6 assistants who are English native speakers to address the Appeals Chamber

7 so as to present our arguments in English and thus be more efficient.

8 Regarding the first four questions, our legal assistant,

9 Mr. Russell Hopkins, will address you, followed immediately by our

10 legal assistant, Mrs. Marie O'Leary, who will deal with the fifth

11 question. And the final conclusions will be presented by my colleague,

12 co-counsel Veljko Djurdjic, and perhaps I will make a short presentation

13 if necessary. I want to thank you for granting our request to allow our

14 legal assistants to present our submissions.

15 Mr. Hopkins.

16 JUDGE AGIUS: Thank you. Mr. Hopkins, go ahead.

17 MR. HOPKINS: Good morning, Your Honours.

18 JUDGE AGIUS: Good morning.

19 MR. HOPKINS: Good morning, Mr. President, members of the

20 Prosecution and to everybody in and around the courtroom.

21 Djordjevic is 64 years old. He, as you know, was convicted and

22 sentenced to 27 years of imprisonment on the basis that no other

23 surviving member of the JCE made a more crucial contribution to the

24 achievement of its objective. There are, we would suggest, three central

25 pillars to his JCE convictions. First, his overall position as chief of

Page 61

1 the RJB and an assistant minister of the interior; second, his role in

2 the deployment of the Skorpions to Kosovo; and thirdly, his role

3 concealing the bodies of Kosovo Albanians inside Serbia. You can see the

4 Trial Chamber's particular reliance on those three things at

5 paragraphs 2154 to 2156 of the judgement.

6 We say that Djordjevic's liability for crimes in Kosovo has been

7 overstated and his sentence is too harsh. In the course of our

8 submissions this morning, we will criticise a number of legal and factual

9 errors that the Trial Chamber made. We criticise in particular the

10 metamorphosis that one sees, whereby earlier discussions of the evidence

11 are summarised incorrectly and then used to support sweeping conclusions.

12 Now, Djordjevic faced a circumstantial case from which the

13 Trial Chamber inferred his mens rea and attributed crimes to him. Our

14 submission on appeal is that other inferences existed about Djordjevic's

15 role and his intent. The Trial Chamber reached conclusions of fact from

16 the circumstances when those were not the only conclusions reasonably

17 available. For that reason, you are entitled to intervene, just as the

18 Appeals Chamber did in the recent Bizimungu appeal and the Gotovina

19 appeal. In our submission, the answer to your first question illustrates

20 why you should intervene.

21 Now, we understand your first question to have two subparts. The

22 first is how the areas of responsibility of assistant ministers Zekovic

23 and Stevanovic overlapped and impacted Djordjevic's authority; the second

24 part is about Djordjevic's role in the deployment of the Skorpions to

25 Kosovo. Now, with your permission we will deal with the Skorpions first

Page 62

1 before turning to Zekovic and Stevanovic.

2 Now, in the early morning of the 28th of March, 1999, the

3 Skorpions massacred 14 women and children in Podujevo in the north of

4 Kosovo. Now, there were of course other atrocities committed in Kosovo

5 in 1999, but the Trial Chamber thought this one particularly important

6 because Djordjevic was, it concluded, directly implicated in it. It is

7 notable, we say, that the section of the judgement that deals with

8 Djordjevic's overall role and knowledge is 54 pages long and the

9 Skorpions takes up nearly half of that. So this is a vital part of the

10 Trial Chamber's conclusion that Djordjevic was a member of the JCE. Now,

11 we will ask you to cast a critical eye over paragraph 2155 of the

12 judgement. And there, in the later section of the judgement, you see the

13 Trial Chamber's ultimate conclusion that Djordjevic participated in the

14 JCE, based on points that it considered to have been established by its

15 earlier discussion.

16 Now, we again say, and this is not an uncommon feature in the

17 judgement, you see in paragraph 2155 a metamorphosis, whereby earlier

18 findings are summarised incorrectly and then used to support flawed

19 conclusions.

20 Now, with that introduction, we will answer your question in

21 three stages.

22 And if I may just a brief housekeeping matter. I envisage

23 spending about 20 minutes or so on the Skorpions and then another

24 20 minutes or so on the assistant ministers, so 40 minutes on your first

25 question.

Page 63

1 The three stages that we propose to address your question on the

2 Skorpions through is, firstly, the circumstances of the initial

3 deployment of the Skorpions to Kosovo; secondly, Djordjevic's role in

4 their recall from Podujevo after the killing there; and thirdly, the

5 circumstances and Djordjevic's role of their redeployment to Kosovo in

6 late April.

7 Firstly, then, on their initial deployment, there are at least

8 five ways that we say the Trial Chamber erred. Point one, the Chamber

9 concluded at paragraphs 2155 and 2188 of the judgement that the Skorpions

10 were widely known as a notorious paramilitary formation. Now, that is a

11 finding that no reasonable Trial Chamber would have made. The earlier

12 finding was that the Skorpions had committed crimes in Croatia and a

13 massacre at Trnovo, Bosnia, in 1995. Now, you will all recognise Trnovo

14 from the Popovic judgement, paragraphs 587 and 1080 of that case. Now, I

15 don't want to give evidence, but it is, in our submission, common

16 knowledge that the first time that this massacre emerged was during the

17 Milosevic trial when a well-known video of it came to light. There is,

18 we suggest, no clear basis that such things were widely known in 1999.

19 Now, the Trial Chamber at paragraph 204 relied on the evidence of

20 Vasiljevic, a VJ general who subsequently investigated the Skorpions.

21 But all he said in his evidence at transcript page 5667 was that he later

22 discovered that there were, he says, criminal types in their ranks,

23 problematic people, in his words. He didn't say that they were -- that

24 this was widely known beforehand. He did not say - and this is

25 crucial - that this was known or should have been known to Djordjevic

Page 64

1 beforehand.

2 Point two, the unit of reserve forces is referred to throughout

3 the judgement as the Skorpions, but only 15 or 16 of the 128 were former

4 Skorpions, that's 12 and a half per cent. Indeed, the Trial Chamber

5 noted that only half of them had any previous combat experience, you see

6 that at paragraphs 1937 and 1951. So how is it said that Djordjevic knew

7 that any of these 15 or 16 former Skorpions had committed war crimes in

8 Croatia or Bosnia? That is a key point that the Trial Chamber just

9 doesn't address.

10 Point three, background checks. Now, at paragraph 1953 of the

11 judgement, the Trial Chamber makes a sort of fall-back finding that,

12 well, Djordjevic should have at least emphasised the need to screen these

13 people for their backgrounds, and two of the Skorpions, it turns out, had

14 prior convictions in Croatia. But paragraph 1954 of the judgement

15 reveals an approach again that no reasonable Trial Chamber would take.

16 The last sentence of that paragraph disparages a perceived suggestion by

17 a witness that prior convictions in Croatia, and it said, did not count.

18 But if you look to the evidence cited, the Chamber mis-characterises what

19 the witness actually said. He didn't say that convictions in Croatia did

20 not count; rather, he said, and the transcript reference is 13716, which

21 is two pages further on from the transcript pages that the trial

22 judgement cites.

23 "Q. Can the MUP ask for reports for records of convictions

24 outside of the Republic of Serbia?

25 "A. Only through the courts, otherwise it cannot."

Page 65

1 So the witness was saying that convictions in Croatia could not

2 be easily discovered. A search by the MUP of its criminal records in

3 Serbia would not show up a hit, if you like, for a conviction in Croatia

4 or anywhere else for that matter.

5 And paragraph 228 of our appeal brief cites evidence that

6 suggests that background checks were indeed undertaken and came back

7 clear. So this puts something of a different light on the recruitment

8 and deployment of the Skorpions. And finally on this point about

9 background checks, you will note that there is no finding in the

10 judgement that any of the Skorpions had criminal convictions in Serbia.

11 This, we say, is consistent with background checks being undertaken and

12 cleared. No reasonable Trial Chamber could use this issue of background

13 checks against Djordjevic.

14 Point four, we say that the trial judgement persists in a sort of

15 mantra that the Skorpions were paramilitaries, but they were not

16 alongside police or military structures, they were in it. They were

17 incorporated into the SAJ reserve forces and brought into its chain of

18 command, so they weren't para anything. Now, in an ideal world, maybe no

19 such recruitment would be undertaken, but the 24th of March, 1999, when

20 these men were incorporated into the SAJ, plainly was not an ideal world.

21 The Federal Republic of Yugoslavia faced a national emergency. Now, you

22 might think that the rather rushed decision to incorporate these men is

23 unattractive. But we say that in all the circumstances, considering the

24 context, it was not criminal.

25 Point five, where were these men sent and why? Podujevo was a

Page 66

1 key strategic zone. The only other two SAJ units, the Pristina SAJ and

2 the Belgrade SAJ, were there too. Now, the Skorpions were not sent off

3 to some soft target. Podujevo and the surrounding area was a known KLA

4 stronghold. In the north of Kosovo, it sat on the main artery connecting

5 Kosovo to the rest of Serbia. If Djordjevic wanted to kill or expel

6 civilians, Podujevo is not an obvious target.

7 So we have made five points about the initial deployment of the

8 Skorpions. We move now on to our second area, the response. And again,

9 we have five points.

10 Firstly, the immediate aftermath of the atrocity. Serbian

11 medical teams arrived there and tried to save lives and treat the

12 wounded; see paragraphs 1253 and 1255 of the judgement. Other members of

13 the SAJ assisted with this. Also, the SAJ commander on the ground

14 informed Djordjevic in Belgrade. Telephones to Belgrade were still

15 working on that day. The point we ask you to note at this stage is that

16 Djordjevic finds out straight away.

17 Point two, the withdrawal. The unit consisted of 128 men. Now,

18 the Trial Chamber was unable to make a precise finding of the number

19 involved in the massacre, but the evidence suggests that perhaps ten of

20 the 128 men were directly involved. You see that in paragraphs 1248 and

21 1250 and the evidence cited there. It is uncontroversial, we would

22 suggest, that Podujevo was committed by a small fraction of the overall

23 unit. Yet, the entire unit was withdrawn, all 128 of them, straight

24 away. They were recalled first to Prolom Banja, then Djordjevic ordered

25 Trajkovic to go there to disarm them all and then sent them home, you see

Page 67

1 that at paragraph 1963. We say that this is not the action of somebody

2 whose mens rea is as the Trial Chamber concluded.

3 Point three, further action. On the morning of 30th of March,

4 1999, so two days later not three as the Trial Chamber suggests at one

5 stage, an investigative judge travelled to Podujevo. He was told about

6 this crime by the Podujevo OUP and he attends the crime site together

7 with the police. His report is Exhibit D441. So the sequence is that

8 Djordjevic finds out straight away. The OUP is involved immediately.

9 People who, on the Prosecution's case, Djordjevic could order around,

10 but - and this is a point we will return to - there is no cover-up.

11 Instead, all of the bodies were buried properly in a local cemetery. See

12 paragraph 1454 of the judgement, where it says that the bodies were

13 buried in a line, each grave was marked with a piece of wood, and

14 numbered consecutively.

15 Point four, more action. On the 13th of May, following a request

16 by Djordjevic, the overall commander of the SAJ submitted a report on

17 this atrocity; that's Exhibit D442 and P86.

18 Then on the 23rd of May, the Podujevo OUP filed a criminal report

19 against people identified as the perpetrators. That's Exhibit P1593,

20 which you can see was sent to the competent prosecutor.

21 Now, the next day the prosecution filed a request to conduct

22 further investigations and the investigative judge decided to proceed,

23 that's Exhibit P1592 [Realtime transcript read in error "P1592"],

24 following which two suspects were detained. The prosecutions continued,

25 albeit slowly, and resulted in a judgement in April 2002. That's Exhibit

Page 68

1 P40, where somebody was convicted and got a 20-year sentence, the maximum

2 available. By Exhibit P41 we can see that his appeal was dismissed.

3 Point five, what about the suggestion at paragraph 1963 of the

4 judgement that withdrawing the Skorpions hindered the investigation?

5 That recalling them to Belgrade, disarming them, and sending them home

6 somehow avoided prosecutions. No reasonable Trial Chamber would draw

7 that conclusion. It is obviously contrary to the clear chain of events,

8 and we refute the apparent suggestion in the trial judgement that the

9 entire unit had to remain in Podujevo or Prolom Banja for the police to

10 investigate. There can be no sensible suggestion that the people had to

11 remain in Podujevo or the vicinity of the crime for the police or the

12 prosecutor to have jurisdiction.

13 And I'm told that I erroneously referred to Exhibit P159 a moment

14 ago and it should have been Exhibit 1592.

15 So we say this sequence in Podujevo contrasts from the

16 Trial Chamber's conclusion at paragraph 1962 that the Trial Chamber says

17 no person was prosecuted for the crimes in Podujevo. It's right that

18 nobody had been convicted during Djordjevic's tenure as chief of the RJB,

19 but the criminal proceedings were well underway. The process started on

20 the 30th of March and Djordjevic plainly didn't stop it.

21 So we have discussed the circumstances of the initial deployment

22 and the response. Moving to our third and final area in relation to the

23 Skorpions, their redeployment to Kosovo. Firstly, again of five points,

24 108 of the 128 were re-engaged by the SAJ. See paragraph 1945. So

25 15 per cent did not return to Kosovo. Those who took part in the

Page 69

1 atrocity in Podujevo were not deliberately redeployed. See

2 paragraph 1946 where this point is noted in passing. Now, the

3 Trial Chamber concluded at paragraph 1966 that some of those involved had

4 been redeployed, but we say it is reasonably possible that that was not

5 deliberate. And it seems undisputed that one of the main perpetrators of

6 the crime in Podujevo, Sasa Cvetan, was not redeployed.

7 Secondly, 85 per cent of the unit was only sent back to Kosovo on

8 the 26th of April, so a whole month after Podujevo. Yet, there is no

9 consideration by the Trial Chamber that if Djordjevic really was intent

10 on killing and expelling civilians, why not send back all of the unit,

11 including Sasa Cvetan, straight away.

12 Third, in its final analysis at paragraph 2155, the Chamber

13 concludes that Djordjevic was aware of the "lack of investigation." But

14 that is inconsistent with its earlier finding at paragraph 1966 where it

15 said that there was a lack of any proper investigation. And even that is

16 plainly wrong. People were investigated and prosecuted, ultimately

17 sentenced to a very lengthy term of imprisonment.

18 Fourthly, what about the finding at paragraph 1948 of the

19 judgement that the redeployed Skorpions committed further crimes in the

20 Jezerce mountain area. It is, we suggest, rather revealing that the

21 Trial Chamber sought to discern Djordjevic's criminal liability on this

22 basis. You will note that no such crimes were alleged in the indictment,

23 they have not been tried, Djordjevic does not stand convicted of them.

24 These allegations remain disputed. No reasonable Trial Chamber would

25 base a conviction on some hint of uncharged and unlitigated events. And

Page 70

1 it seems clear, if you look at paragraph 1948 of the judgement, that KLA

2 were in the area.

3 Fifthly, the Trial Chamber fails to consider the reality of the

4 circumstances of the redeployment. What if the continued NATO onslaught,

5 the risk of land invasion, made it a difficult but, nevertheless, an

6 understandable decision in all of the circumstances, to send a portion of

7 those forces to try to hold the mountains.

8 Now, if we may conclude by returning to paragraph 2155 of the

9 judgement, there you see that Djordjevic was personally and directly

10 involved in the incorporation of, it is said, a notorious paramilitary

11 unit. It says that after the atrocity they were withdrawn but "no

12 investigation followed." It says that Djordjevic was aware of the "lack

13 of investigation" but nonetheless authorised the redeployment "a few days

14 later." Now, that paragraph, in our respectful submission, is filled of

15 findings that no reasonable Trial Chamber could make.

16 Now, before we leave this topic of Podujevo, why do we say that

17 this raises issues for an appellate court? We have highlighted 15 areas

18 meriting your intervention. Djordjevic faced a largely circumstantial

19 case from which the Trial Chamber inferred his mens rea and attributed

20 this crime and others to him. And our submission on appeal is that other

21 inferences plainly existed. Contrary to the approach the Trial Chamber

22 took, Podujevo in some ways mitigates Djordjevic's guilt.

23 Could Djordjevic have done better? Probably. But is

24 Djordjevic's conduct in the circumstances so bad to have been criminal?

25 Perhaps not as the Trial Chamber suggested.

Page 71

1 Crucially, is this really the conduct of the most central

2 surviving member of the JCE? In our submission it's not.

3 And also, Podujevo doesn't fit with the Trial Chamber's

4 conclusions on other issues. For example, no reasonable Trial Chamber

5 would fail to weigh the events in Podujevo against its conclusions about

6 Djordjevic concealing dead bodies. Now, as you know, Djordjevic's role

7 concealing crimes together with the Skorpions occupies the majority of

8 the section of the judgement about his role and intent.

9 Now, at trial Djordjevic admitted that he was involved in

10 concealment. His case was in, summary, that he got involved belatedly,

11 reluctantly, to a limited extent, and only once bodies literally started

12 to surface inside Serbia. In effect, he was not in the JCE but panicked

13 when he learned about bodies surfacing. Now, this defence should not

14 have been so readily dismissed. The events at Podujevo are consistent

15 with that defence. For the crime site which the Trial Chamber concluded

16 Djordjevic is most directly implicated, there is no cover-up. This is

17 more than an anomaly. It calls into question the Trial Chamber's

18 assessment of Djordjevic because it's a discrepancy that the

19 Trial Chamber doesn't weigh and it doesn't explain.

20 The Trial Chamber erred repeatedly when it concluded that

21 Djordjevic was the lynch pin of the JCE. You might consider that other

22 modes of liability, other than JCE, better reflect Djordjevic's overall

23 responsibility for events in Kosovo and Podujevo is a good illustration

24 of why.

25 Now, with your permission, we'll now move to the first part of

Page 72

1 your first question, how the areas of responsibility of Zekovic and

2 Stevanovic impacted Djordjevic's authority as an assistant minister.

3 It might be that your question is motivated by paragraphs 43 and

4 44 of the judgement. We suggest that those paragraphs are cryptic and

5 contain clear errors meriting your intervention. At paragraph 43 the

6 Trial Chamber found as follows:

7 "... any limitation to Djordjevic's power by reason of the

8 allocation of an area of responsibility to another Assistant Minister

9 would only arise where there is an overlap between the specific

10 responsibility of another Assistant Minister and the general authority of

11 Djordjevic as Chief of the RJB." The Trial Chamber then said "there is

12 no evidence to support the idea that this was the case."

13 But then in paragraph 44, the next paragraph, the Trial Chamber

14 found as follows:

15 "... the Assistant Ministers held high-ranking posts in the MUP

16 and were responsible for their particular fields of authority. It does

17 not accept," the Trial Chamber, that is, "does not accept that this

18 allocation of responsibility had the effect of diminishing Djordjevic's

19 authority as head of the RJB."

20 Now, these findings don't make any sense. First the

21 Trial Chamber says that Djordjevic's power is only reduced if there was

22 an overlap between the specific responsibilities of assistant ministers

23 and his authority as chief of the RJB. Next the Chamber says that

24 assistant ministers were indeed responsible for particular fields of

25 authority but, for reasons that are not explained by the Chamber, somehow

Page 73

1 this didn't diminish Djordjevic's overall authority. And this is on a

2 crucial issue in this case: Djordjevic's overall role in the MUP. We

3 say this reasoning is inadequate.

4 What the Trial Chamber is doing here is concluding that

5 Djordjevic was the number two man in the MUP, that his powers were only

6 just short of the minister's. And we say that the Trial Chamber was

7 misled by suggestions by a couple of witnesses, Vasiljevic and K87, who

8 said that Djordjevic was the number two man. But these witnesses just

9 couldn't know this. Vasiljevic was in the army and K87 was right at the

10 very bottom of the RJB. The Trial Chamber was misled by misperceptions

11 rather than the altogether less exciting reality.

12 Now, in paragraph 43, the Trial Chamber briefly analysed the

13 relationship between rank in the MUP versus role as an assistant

14 minister. And Djordjevic's case was that these two things, rank versus

15 assistant minister, were separate issues. Just because he held superior

16 rank in the police to Zekovic or Stevanovic or other assistant ministers,

17 that did not mean that he could tell them what to do.

18 Now, in this paragraph, 43, you see the finding that the Chamber

19 was "not convinced" by what it characterised as Djordjevic's assertion

20 about the nature of police ranks within the Ministry of Interior. In

21 fact, Djordjevic's so-called assertion was corroborated by the evidence

22 of Misic, who was the only other assistant minister and who explained

23 that his boss was the minister, not Djordjevic. See transcript

24 pages 14068 to 9, and 14073 to 14076.

25 Now, we would pause here to note that the Prosecution had

Page 74

1 Stevanovic on their 65 ter list but they didn't call him. Similarly,

2 they said they would call Markovic, another assistant minister, but they

3 didn't call him. So on a crucial issue, a crucial issue, that goes to

4 the heart of Djordjevic's role in the ministry, the Trial Chamber makes

5 contradictory findings, it fails to consider highly relevant evidence,

6 and then it puts the onus on Djordjevic to prove the position when the

7 onus was on the Prosecution to prove that assistant ministers were all

8 subordinate to Djordjevic rather than, as the plain language of their job

9 title suggests, the minister. Instead we then have this cryptic language

10 about potential effect of overlapping responsibilities.

11 So what was the actual position? What is it we say that the

12 Trial Chamber failed to deal with? We have submissions on two areas.

13 Firstly, in case it assists, we will briefly point you to the relevant

14 documents on the areas of responsibility of Zekovic and Stevanovic,

15 indeed the assistant ministers more generally. Secondly, we'll then

16 summarise the findings on Stevanovic and Zekovic and make brief

17 submissions on how their role impacted Djordjevic. The point here is

18 that Djordjevic's authority was more attenuated than the Trial Chamber

19 concluded. And the Trial Chamber only reached its conclusion because it

20 failed to grapple with the issue. And that issue is that the MUP

21 hierarchy was, in reality, a complex web of fiefdoms, tensions, checks

22 and balances, that served the ultimate goal of preserving the minister of

23 the interior's ultimate power.

24 Turning firstly to the relevant laws. We will of course also

25 look at how things worked in practice, but on the laws, rather than try

Page 75

1 your patience by reading them out, we would propose to identify them and

2 then make two short points on their effect.

3 The first document is the Law on State Administration, and for

4 the transcript that's from April 1992. It's Exhibit P69. See

5 Article 46.

6 The second document we'd refer you to is the Serbian government

7 decree establishing the principles that apply to posts within the

8 ministries. It was published in 1994. It was Exhibit P258. And

9 Article 18(2) of that says that an assistant minister - and this really

10 is crucial - is "directly responsible" to the minister.

11 The third document is a dispatch sent by the minister on the role

12 of assistant ministers from June 1997. It was Exhibit P263. It's a

13 single-page document, and in it you can see the minister setting out

14 Stevanovic's and Zekovic's fields of responsibility.

15 The fourth and penultimate document is the Rules on the

16 Internal Organisation of the Ministry of the Interior and it's from 1997.

17 It was Exhibit P357. And this document sets out the jurisdictions of

18 administrations within the RJB. See in particular Articles 1, 13, 15,

19 17, 23, and 24.

20 The final document is the minister's decision in December 1998 on

21 the ministerial collegium. It was Exhibit D258 [sic]. And you see in

22 that document that collegium members report directly to the minister, not

23 to Djordjevic.

24 Now, rather than deal with these documents, the Trial Chamber

25 based its conclusions on the MUP hierarchy, on Vasiljevic, and somebody

Page 76

1 at the very bottom of the RJB. Had it addressed the laws, at least two

2 interesting points emerge. Firstly, one sees an overlap between the

3 jurisdictions, if I can put it like that, of assistant ministers and what

4 is referred to as administrations within the RJB. Precisely the overlap

5 the Trial Chamber alludes to in its cryptic paragraph 43. We see that

6 most clearly when one compares Exhibit P357 with Exhibit P263.

7 Stevanovic and Zekovic's roles as assistant ministers overlaid

8 administrations within the RJB.

9 We also say that Exhibit P263, which is the minister's dispatch,

10 is a significant reduction in the powers of the head of the RJB. It

11 shows that at the same time Djordjevic is appointed as acting head of the

12 RJB in that same document, fiefdoms are created for Zekovic and

13 Stevanovic and others. And importantly, you will see that Exhibit P263

14 is sent by the minister to nearly everybody in the MUP. So this is an

15 unequivocal statement about the location of power. Yes, Djordjevic is

16 appointed head of the RJB at that time, but at the same time the minister

17 is dispersing power to other assistant ministers.

18 Secondly, one sees that assistant ministers were directly

19 responsible to the minister, not Djordjevic. We've said, as I've

20 mentioned already, you see that in Exhibit P258 [Realtime transcript read

21 in error "P257"], Article 18(2). And similarly, in Exhibit D208, you can

22 see assistant ministers answering directly to the minister, not via

23 Djordjevic, who, after all, was just another assistant minister.

24 Now, combined, we say that these documents suggest that the MUP

25 had something of a split personality. A line of control was created

Page 77

1 whereby the minister, through his assistant ministers with their zones of

2 responsibility, could control administrations of the RJB. Where there

3 was overlap, Djordjevic's role was diminished. Now, at the same time,

4 administrations within the RJB were subordinate to Djordjevic. Now --

5 and we do not dispute that people that the assistant minister would

6 control in the RJB would still recognise that Djordjevic was the chief of

7 the RJB. But ultimately, and the relevance of this is that you have a

8 tension that pulls away from Djordjevic. And why? Because it solidifies

9 the reins of power in the hands of the minister of the interior.

10 Now, this isn't just our interpretation of the laws. There was

11 evidence of the practical implications of this set-up. We would mention

12 Exhibit D261 at this stage because the Trial Chamber thought it

13 significant in another context. This is an order sent by Misic, the

14 assistant minister, instructing SUP chiefs about identification

15 documentation. Now, at paragraph 2079 of the judgement, the

16 Trial Chamber suggests that this is an ominous document because it states

17 that SUPs should, it says, "postpone the designation of personal

18 identification numbers until further notice." Even though this was sent

19 to all of the SUPs in the Federal Republic of Yugoslavia, the

20 Trial Chamber tied this document to instances where Kosovo Albanians had

21 their identification documents confiscated illegally. Now, briefly, if

22 you read the document, you see that it's actually only discussing the

23 suspension of the issuance of new identity numbers because the computer

24 system was affected by the NATO bombing. Now, this would only affect

25 newborn babies getting an identification number for the very first time.

Page 78

1 It does not mean and it cannot mean that somebody who had their

2 documentation destroyed by a rank-and-file police officer at the border

3 could not get a replacement. They would have the same number as before.

4 But we digress here because the important point for present

5 purposes is that this document is sent by Misic to all of the SUPs. It

6 does not come from, nor is it sent to or copied to, Djordjevic. So this

7 is an assistant minister, Misic, controlling his designated area without

8 Djordjevic.

9 Moving to the practical reality of Stevanovic's and Zekovic's

10 roles, now Djordjevic's defence at trial was that, among other things,

11 Stevanovic came to take the hands-on role on the ground in Kosovo for the

12 minister. You see clear evidence of this in practice, but the

13 Trial Chamber's rejection of it was only possible because it did not deal

14 with the points we've just identified.

15 Now, on the 21st of December, 1998, there was a ministerial staff

16 meeting attended by the minister. Djordjevic was not there. Rather, it

17 was first Lukic, then Stevanovic who chaired the meeting and gave

18 instructions. You see if you look at the minutes, and they're at

19 Exhibit P1043, you see Stevanovic conveying expressly the minister's

20 orders, not Djordjevic's.

21 On the 4th of April, so we're moving into the war now, we have a

22 ministerial staff meeting in Kosovo. And again, Stevanovic is there,

23 Djordjevic is not. The minutes are Exhibit P764. On the 7th of May,

24 Stevanovic attends a ministerial staff meeting and gives detailed

25 instructions to those present on anti-terrorist operations and clearing

Page 79

1 up the terrain, it said. Djordjevic is not there. That's Exhibit P771,

2 I would refer you to pages 10 and 11 in particular.

3 On the 11th of May, Stevanovic attends another ministerial staff

4 meeting and updates his instructions on anti-terrorist operations, among

5 other things. That's Exhibit P345, pages 7 to 9 in particular.

6 Now, Djordjevic's defence was that power had shifted away from

7 him towards those chosen by the minister and physically present in

8 Kosovo, in particular the ministerial staff for Kosovo which answered to

9 the minister rather than Djordjevic. And we outline in our appeal brief

10 how the Trial Chamber failed to grapple with a key aspect of that

11 decision, Exhibit P57. And the head of the minister's staff,

12 Sreten Lukic, answered, not reported, answered to the minister rather

13 than Djordjevic.

14 No reasonable Trial Chamber would have rejected Djordjevic's

15 defence without grappling with the reality of Stevanovic's role.

16 Turning now to Zekovic. Unlike Stevanovic, the Trial Chamber did

17 not find him to have been a member of the JCE. See paragraph 2122.

18 Indeed, the findings on him are much more limited. But contrary to the

19 repeated suggestion by the Trial Chamber, it's plain that he was not the

20 head of an administration in the RJB. That role for joint affairs was

21 held by Todorovic. See, for example, Exhibit D208, page 4, item 13.

22 One further point of interest is the finding that Zekovic

23 arranged for the collection of bodies from Kosovo, specifically Pristina

24 and Kosovska Mitrovica, and their direct transportation to the

25 Petrovo Selo PJP centre in east Serbia. Now, there was no direct

Page 80

1 evidence that Djordjevic was involved in this. Indeed, we say that it

2 contrasts with Djordjevic's role at Podujevo, as we have already

3 discussed.

4 Now, why is all this a relevant appellate issue? Well, unlike

5 his predecessors, Djordjevic as chief of the RJB was not the deputy

6 minister of the interior. He was just an assistant minister, like the

7 other assistant ministers. Yes, he was chief of the RJB, but what you

8 plainly see is a marginalisation of that office, particularly in respect

9 of Kosovo for which a ministerial staff is created on the ground. So you

10 see a concentration of power with both the ministerial staff and the

11 Joint Command, which are both in Kosovo, in Pristina. And so Djordjevic

12 remains a sort of figurehead for the RJB, but his role in relation to

13 Kosovo is incrementally reduced.

14 Now, a reasonable Trial Chamber would have grappled with this

15 set-up in the Ministry of Interior. It would not have made these cryptic

16 and confusing findings at paragraphs 43 and 44 of the judgement. Had it

17 properly dealt with this issue, it would have to weigh this reduction in

18 the power of Djordjevic's office. And when you read the judgement as a

19 whole, the obvious difference with Djordjevic's involvement in Kosovo in

20 1998 compared to the indictment period, the obvious difference. In 1998

21 he was physically there overseeing about a third, the Trial Chamber

22 found, of police operations that summer. He attended lots of

23 Joint Command meetings and, on occasion, ministerial staff meetings. But

24 in 1999, his role is much more removed. We say this rather raises the

25 question as to whether Djordjevic really made a significant contribution

Page 81

1 to the JCE in 1999.

2 Alternatively, even if you conclude that Djordjevic remained in

3 the JCE, this reduced role merits a significant reduction in sentence.

4 For that reason, the resolution of this -- of the role of assistant

5 ministers is of vital importance to Djordjevic's appeal.

6 I'm told that the transcript page 23, line 4, refers to D258.

7 Exhibit D258 should be 208. And then at page 24, at line 13, it says

8 P257, that should be P258.

9 JUDGE AGIUS: Thank you.

10 MR. HOPKINS: Now, turning then, if I may, to question two posed

11 by the Appeals Chamber, which we were asked to discuss in relation to

12 Djordjevic's 11th ground of appeal, the implications of the fact that the

13 Trial Chamber didn't make explicit findings on substantial contribution

14 in relation to forcible transfer and did not make explicit findings in

15 relation to specific direction.

16 Now, when the Trial Chamber additionally convicted Djordjevic of

17 aiding and abetting, it failed to make the necessary findings and it

18 failed to give an adequately reasoned judgement. Its approach, we say,

19 elides aiding and abetting with JCE. A careful and reasonable

20 Trial Chamber would not have done this. We suggest that it is this

21 erroneous elision of aiding and abetting in JCE that gives rise to your

22 second question. Before making submissions on specific direction, I will

23 address that part of your question about the fact that the Trial Chamber

24 did not make explicit findings on substantial contribution to forcible

25 transfer.

Page 82

1 This question is presumably generated by paragraph 2163 of the

2 judgement, where the Trial Chamber concluded that Djordjevic's acts had a

3 substantial effect on the perpetration by MUP forces of the crimes of

4 murder, deportation, and persecutions in Kosovo. So forcible transfer is

5 noticeable by its absence in that paragraph. But then in the very next

6 paragraph, 2164, the Trial Chamber concluded that Djordjevic did indeed

7 aid and abet forcible transfer, and then similarly in the disposition,

8 that the Trial Chamber concludes that Djordjevic aided and abetted

9 forcible transfer. So there is, therefore an inconsistency in the

10 Trial Chamber's treatment.

11 It is doubly odd that Djordjevic was found to have made a

12 substantial contribution to persecutions and convicted of persecutions by

13 means of forcible transfer without an explicit finding that he made a

14 substantial contribution to the underlying crime of forcible transfer.

15 Now, frankly, we are at a loss to explain paragraph 2163 of the

16 judgement. It could be a simple mistake, some missed wording, or there

17 might be some unexplained logic to it. We just don't know.

18 But be that as it may, we must address the question of whether a

19 finding of substantial contribution to forcible transfer is nevertheless

20 implicit in the Trial Chamber's findings. And on this, an important

21 point, we say, arises from paragraph 2163 and it's this: The finding of

22 substantial effect, as it's described there, is in relation to MUP crimes

23 only, so not the VJ and not other forces.

24 Now, why does that matter? Well, this is a more limited finding

25 than a substantial contribution to all crimes in Kosovo. And it seems to

Page 83

1 be a deliberate finding because it's expressly repeated at

2 paragraph 2194.

3 Now, this approach of limiting Djordjevic's aiding and abetting

4 liability to crimes by MUP forces is consistent with the approach in

5 Milutinovic where Ojdanic and Lazarevic were convicted of aiding and

6 abetting VJ crimes in their case but not other forces like the MUP. And

7 the Office of the Prosecutor did not appeal that approach.

8 Returning to Djordjevic's case, despite this limited finding of

9 Djordjevic's contribution to MUP crimes, in the disposition and sentence

10 you see that Djordjevic is, for reasons unexplained, convicted of aiding

11 and abetting all of the crimes in Kosovo irrespective of the

12 perpetrators, be they MUP, VJ, or anybody else.

13 Now, this is yet another example of metamorphosis in the

14 Trial Chamber's findings. It suggests to us that the Trial Chamber's

15 decision to additionally convict Djordjevic of aiding and abetting was

16 something of an afterthought. It does not seem to have been rigorously

17 thought through by the Trial Chamber, which may be why you see a failure

18 to make explicit findings and are then faced with the difficulties when

19 you're considering whether the necessary findings are actually implicit

20 in the Trial Chamber's approach.

21 Now, we will address you on the appropriate remedy after

22 discussing the lack of explicit findings on specific direction.

23 So turning then to specific direction. We say that Djordjevic

24 actually lost out from the paucity of the Trial Chamber's reasoning on

25 aiding and abetting. If one looks at Djordjevic's conduct through a

Page 84

1 specific direction lens, as the Appeals Chamber in Perisic recently

2 confirmed that the Trial Chamber should, we suggest that a picture comes

3 into focus that his relationship to crimes in Kosovo was more remote and

4 attenuated than the Trial Chamber concluded.

5 Now, the relevant paragraphs of the judgement are 2163 and 2194.

6 2163 is the finding on Djordjevic's actus reus for aiding and abetting.

7 2194 is a further justification, and it suggests that a key issue for the

8 Trial Chamber's conclusion here was Djordjevic's role in the concealment

9 of crimes.

10 But dealing firstly with other aspects of Djordjevic's

11 actus reus, such as his overall role in the MUP and his involvement

12 sending the Skorpions to Kosovo, we would make the short point that the

13 circumstances faced by the Federal Republic of Yugoslavia in 1999, such

14 actions were not necessarily specifically directed to crimes. Now, you

15 might suspect that they were, but we would respectfully suggest that it

16 is reasonably possible that they were not.

17 Now, Perisic says that in most cases where an accused is remote

18 from the location of crimes, the provision of general assistance which

19 could be used for both lawful and unlawful activities will not be

20 sufficient alone to prove that such aid was specifically directed to

21 crimes. And we suggest that much of Djordjevic's conduct in all of the

22 circumstances could have been general assistance for lawful activities.

23 Indeed, the immediate removal of the Skorpions after Podujevo rather

24 suggests that his conduct was not directed towards such crimes.

25 Like the Perisic case, Djordjevic was primarily based in

Page 85

1 Belgrade, whereas crimes took place hundreds of kilometres away. And we

2 say that Djordjevic's intermittent visits to Kosovo in 1999 do not change

3 that approach. He was physically remote from the crimes.

4 Now, having said all that, as I mentioned, a key point for the

5 Trial Chamber was Djordjevic's role in the concealment of crimes. And on

6 that issue, at first sight, the Perisic judgement does not seem to assist

7 Djordjevic greatly. You would likely conclude that concealing crimes is

8 not general assistance for otherwise lawful activities.

9 Now, we should also acknowledge that Judge Agius and Judge Meron

10 in Perisic considered that mens rea is relevant when assessing whether

11 acts are specifically directed towards crimes. And in this case we are

12 faced, for now anyway, with the finding that Djordjevic was a member of

13 the JCE. So although the Trial Chamber failed to make explicit findings

14 about specific direction, and although the criteria of specific

15 direction, we say, sheds a different light on some of Djordjevic's

16 actions, because of these concealment operations, Perisic does not seem,

17 at first sight anyway, to be decisive in Djordjevic's favour.

18 But the question then becomes whether Djordjevic's involvement in

19 the concealment of crimes is an implicit finding that his acts and

20 omissions were specifically directed towards crimes. Now, an instinctive

21 answer to that question might be, of course, such acts were specifically

22 directed to the crime. But we would respectfully suggest that such an

23 instinctive answer would be wrong in law. In our submission, assisting

24 in reburials like Djordjevic did does not necessarily entail criminal

25 liability for the earlier crime. The law, we say, requires a prior

Page 86

1 agreement between the perpetrator and the aider and abettor. Now, I will

2 develop that submission in a moment, but before doing so we must overcome

3 a factual finding that Djordjevic was party to a sort of prior agreement

4 with Milosevic and the minister Stojiljkovic, because if that factual

5 finding remains undisturbed, our submission on the law faces a hurdle.

6 Now, the Trial Chamber found that a plan existed to conceal the

7 bodies of Kosovo Albanians killed during the indictment period. You see

8 that at paragraph 1967. It found that there was a co-ordinated operation

9 to clear Kosovo of evidence of crimes and that the operation was

10 conducted under Djordjevic's direction after an order by the minister and

11 President Milosevic. You see that in paragraph 1980.

12 Now, this is a startling finding. At paragraph 2112 and 2117,

13 there is another startling finding that Djordjevic attended a meeting in

14 March 1999 in Milosevic's office with Stojiljkovic and Markovic and that

15 he was later delegated this cover-up operation by the minister.

16 Now, we invite the Appeals Chamber here to draw a clear line as

17 to what is and what is not acceptable reasoning by a fact-finder. The

18 Chamber conceded that the evidence of these supposed meetings was not, in

19 the Trial Chamber's words, first hand. Now, we recognise, of course,

20 that a Trial Chamber can rely on hearsay evidence, but with great respect

21 to the Trial Chamber, that rather understates its approach to this issue.

22 The only evidence of these meetings was the first report by the

23 Working Group set up in May 2001. It is Exhibit P387, and it is

24 summarised at paragraphs 1373 and 2112 of the judgement. Now, the

25 information giving rise to the Working Group's suggestion that these

Page 87

1 meetings happened was a supposed statement by the former chief of the

2 RDB, Radomir Markovic, that he is said to have given while he was in

3 prison.

4 First point, even if such a statement was made by Markovic, a

5 reasonable Trial Chamber would have to weigh its reliability given the

6 source and the circumstances in which it was given. And you don't see

7 that in this judgement.

8 Second point, Markovic's statement was not in evidence in this

9 case. Indeed, the Working Group did not claim to have seen it. Instead,

10 it is said that notes were taken of it by a member of the Working Group,

11 notes of Markovic's statement.

12 Third point, those notes that were supposedly taken of Markovic's

13 statement, they weren't in evidence either. So the basis for the

14 Trial Chamber's findings was the evidence that somebody had seen a note

15 that somebody had taken of a purported statement. And we should also

16 note again that the Prosecution had Markovic on their 65 ter list but

17 didn't call him.

18 Now, even leaving aside the Defence's case at trial that the

19 Working Group was a hatchet job looking to blame Djordjevic, there is

20 hearsay and then there is this. Now, of course the Trial Chamber, all

21 Trial Chambers, have a wide discretion in the assessment of evidence, but

22 that discretion is not unlimited, and in our respectful submission, this

23 is as clear an example as you can get of a Trial Chamber overreaching.

24 Not even the Prosecution in their closing brief attempted to suggest that

25 these meetings took place.

Page 88

1 Now, the obvious point to make against us here is that, well, a

2 concealment operation did take place, so it was not unreasonable to

3 conclude that there was a meeting at which it was planned. Well, we

4 still say that you cannot reverse engineer Djordjevic's involvement in

5 such a meeting in that way. Indeed, the fact that there was no cover-up

6 at Podujevo, the crime to which Djordjevic -- the Trial Chamber thought

7 Djordjevic was most closely related, rather suggests he was not party to

8 such an agreement.

9 So we say that a reasonable inference remained that Djordjevic's

10 role was far more attenuated than the Trial Chamber concluded.

11 Now, the bodies that were found in the river Danube near Tekija

12 in eastern Serbia were moved in two truckloads to the Batajnica SAJ

13 centre and buried there on or around the 8th of April, 1999. There

14 followed further truckloads of bodies arriving at Batajnica that

15 Djordjevic was involved with. But the extent of this evidence, we

16 suggest, is that Djordjevic's role was limited to Serbia proper, when he

17 learned that bodies surfaced there.

18 No reasonable Trial Chamber would draw the conclusory inference

19 that Djordjevic knew about or was involved with any original crimes or

20 burials in Kosovo, subsequent disinterment, and then secret

21 transportation to Serbia. Indeed, the lack of such an operation in

22 Podujevo is revealing of this. So Djordjevic's acts were not

23 specifically directed to crimes against Kosovo Albanians; had they been,

24 one would surely see a cover-up in Podujevo.

25 On Batajnica, the timing of Djordjevic's actions and knowledge is

Page 89

1 relevant. We suggest that here again the Trial Chamber's findings

2 changed during the course of the judgement. For example, at

3 paragraph 1347, the Chamber concluded that Djordjevic knew that the

4 trucks were headed from Tekija to Batajnica. But at paragraph 1356, this

5 becomes that Djordjevic ordered the trucks to go from Tekija to

6 Batajnica. So there is a clear difference.

7 Similarly, there is an issue as to whether Djordjevic was

8 involved in sending further trucks to Batajnica or whether he was merely

9 informed that trucks had arrived there and he then arranged reburials.

10 On this, at paragraph 1337 of the judgement, the Chamber concludes there

11 that Djordjevic told K87 in advance about each arrival. But if you look

12 to the evidence, you see that nowhere is it suggested that Djordjevic

13 actually knew in advance that trucks were going to arrive rather than

14 merely having himself found out the trucks arrived there and then taking

15 steps to arrange reburials.

16 The significance of all this, we say, is that Djordjevic was more

17 removed from the cover-up than the Trial Chamber concluded. Yes, he

18 became involved in it and, yes, his conduct merits criticism. But the

19 highest at which the evidence could be put is of an ill-judged, somewhat

20 panicked afterthought.

21 Now, if we may turn briefly to the law on specific direction in

22 the context of omissions and cover-ups.

23 The Popovic trial judgement, in particular at paragraph 1032 and

24 1083, held that reburial operations are not crimes in and of themselves

25 under the Statute. An accused is not held criminally responsible for the

Page 90

1 reburials; rather, any involvement in a reburial operation is evidence,

2 relevant evidence, to be weighed to decide whether an accused is

3 criminally responsible for the earlier deaths of those individuals. Now,

4 we make a similar point in paragraphs 239 to 243 of our brief.

5 The approach in Popovic isn't new. It's consistent with the

6 Blagojevic trial judgement, paragraphs 731 and 745. And in Blagojevic,

7 the Trial Chamber found that a reburial operation that occurred after

8 scrutiny of events in Srebrenica had not been agreed upon at the time of

9 the killings there. The Trial Chamber held that a prior agreement must

10 exist between the principal and the person who subsequently aids and

11 abets; paragraph 731 of that judgement. So the Trial Chamber in

12 Blagojevic required a prior agreement between the aider and abettor and

13 the principal in order for acts performed after the underlying crime to

14 constitute aiding and abetting.

15 Similarly in Aleksovski, the Trial Chamber held that aiding and

16 abetting may occur after the crime. But the Trial Chamber stressed that

17 this must have been promised beforehand -- promised to the perpetrator

18 beforehand that the aider and abettor would perform certain acts after

19 the crime had been committed. You see that in the Aleksovski judgement

20 paragraph 62.

21 And we also rely on the Strugar trial judgement decided less than

22 two weeks after Blagojevic. And in Strugar, the Prosecution alleged that

23 the accused had not punished his troops for shelling the Old Town of

24 Dubrovnik and that this amounted to aiding and abetting unlawful

25 shelling. The Trial Chamber was not satisfied that conduct like this

Page 91

1 after the offences were committed could have had a direct and substantial

2 effect on the commission of the earlier offences. It thus declined to

3 convict Strugar of aiding and abetting and he was instead convicted under

4 Article 7(3).

5 Now, obviously the approach in those cases doesn't bind you, but

6 we would suggest it's interesting that three different trial judgements

7 involving nine different Judges have recognised that particular criteria

8 are applied to assistance given after a crime is committed. And we say

9 that with a reburial operation or cover-up, an explicit demonstration is

10 needed that those acts directly affected the earlier crime. In some

11 cases, this is said to require a showing of a prior agreement between the

12 accused and the principal, such that the principal would commit the

13 crime, safe in the knowledge that their crime would be covered up.

14 So our submission is here that when one looks to apply Perisic to

15 concealment operations or a failure to punish, one still needs to

16 identify how that concealment encouraged the perpetrators to commit

17 crimes. As opposed, for example, to simply helping the perpetrator avoid

18 justice. More often than not what you will need to see is an agreement

19 between the aider and abettor and the perpetrator.

20 Now, the Trial Chamber, in conclusion, should have weighed the

21 suggestion that Djordjevic attended ominous meetings with the obviously

22 contradictory sequence of events in Podujevo. In our submission, the

23 inference of any agreement or secret master plan should never have been

24 drawn. Instead, the reasonable inference remains that Djordjevic's

25 conduct in all of this was not specifically directed to crimes; rather,

Page 92

1 he was drawn into an ill-conceived cover-up after the fact.

2 But what about the Prosecution's argument that they make in their

3 response brief that Djordjevic's conduct was not after the fact, it was

4 not so much a failure to punish because, they say, and they point out

5 correctly, there was a series of cover-ups from 8th off April onwards.

6 Well, we can see some force in their argument, but it becomes very, very

7 difficult to apply it to the facts of this case.

8 Firstly, you could not convict Djordjevic on that basis of crimes

9 committed before the 8th of April; and secondly, you would, we suggest,

10 need to identify which crimes Djordjevic actually assisted and in which

11 location. Now, we argue in our appeal brief that this section of the

12 trial judgement on aiding and abetting is so inadequately reasoned that

13 the fairest approach is to quash all of Djordjevic's aiding and abetting

14 convictions. And we say that because if there were careful findings on

15 aiding and abetting, we would have been able to challenge them on appeal.

16 We would challenge, for example, and this is just an example, any

17 suggestion that concealing bodies from one location means that a person

18 somehow aids and abets, for example, wanton destruction in another

19 location on a different day.

20 So the debate here, we respectfully suggest, is that Djordjevic's

21 conduct is perhaps more coherently expressed in the context of

22 Article 7(3) rather than contorting Article 7(1), especially when it is

23 clear that the Trial Chamber has not applied relevant criteria.

24 Now, that concludes my submissions on the second question. My

25 submissions on the third and fourth questions are much briefer. I don't

Page 93

1 know whether now is a convenient moment or --

2 JUDGE AGIUS: Yes, I think it is. And we have recovered the lost

3 time, so we will still reconvene at 11.00, and you will then proceed with

4 your submissions. Thank you.

5 --- Recess taken at 10.36 a.m.

6 --- On resuming at 11.00 a.m.

7 JUDGE AGIUS: Yes, you may proceed. Thank you.

8 MR. HOPKINS: Turning then to the third question posed by the

9 Appeals Chamber, which is to discuss in relation to Djordjevic's

10 13th ground of appeal and with a reference to the trial record whether

11 for the purpose of establishing the crime of deportation and in light of

12 customary international law, a de facto border existed between Kosovo and

13 Montenegro. Now, as I say, my submissions on this third question and

14 also the fourth question are much briefer than what's been before.

15 Now, our submission on this third question is straightforward.

16 Properly understood, deportation is the compelled movement of a person

17 from the territory in one party's control to the territory in another

18 party's control. Usually that will be across international state

19 boundaries, and that is the default position subject to limited

20 exceptions, none of which are relevant to this case.

21 We suggest that definition is clear, it's easily understood, it

22 is consistent with the common understanding of what it means to deport

23 somebody. For example, Black's Law Dictionary defines deportation as the

24 "act or an instance of removing a person to another country ... the

25 expulsion or transfer of an alien from a country."

Page 94

1 This contrasts with the crime of forcible transfer as an inhumane

2 act which is forced movement of people within a country.

3 Now, you have asked whether a de facto border existed between

4 Kosovo and Montenegro in the indictment period. Now, our submission is

5 that the border between Kosovo and Montenegro was a de jure internal

6 administrative boundary within the Federal Republic of Yugoslavia. All

7 it did was separate the province of Kosovo from the Republic of

8 Montenegro. So those who left Kosovo for Montenegro may have been

9 forcibly transferred, but they were not deported. They remained at all

10 times within the Federal Republic of Yugoslavia.

11 Now, firstly on the light cast by customary international law to

12 this question, there is, of course, a discussion of this in, among other

13 places, the Stakic appeals judgement paragraphs 290 to 303, and

14 Judge Shahabuddeen's dissent in the same case, and also Judge Schomburg's

15 dissent in the Naletilic case. Now, we will not rehearse those analyses

16 but we would draw out a few points.

17 The Stakic judgement noted that many of the international

18 materials while expressly prohibiting deportation don't define it.

19 Importantly, the Stakic judgement recognised at paragraph 300 what it

20 described --

21 JUDGE AGIUS: Sorry, you are referring to the Stakic trial

22 judgement or the appeal judgement?

23 MR. HOPKINS: Sorry. Excuse me, the appeal judgement.

24 JUDGE AGIUS: Thank you. Just for clarity. I knew you were, but

25 for the record it's better to have it.

Page 95

1 MR. HOPKINS: So the Stakic appeal judgement paragraph 300

2 describes the default position that deportation requires expulsion across

3 a de jure border, and then we say this is the key point, to another

4 country. So the Appeals Chamber in Stakic recognised the need for a

5 border to be crossed for the crime of deportation to be established and

6 said it's a border with another country.

7 It then said that the question of whether a de facto border is

8 sufficient for the purposes of the crime of deportation should be

9 examined on a case-by-case basis. The Appeals Chamber in Stakic quashed

10 a conviction for deportation across constantly changing front lines on

11 the basis that that had given a greater scope to the crime of deportation

12 than existed in customary international law.

13 Now, Judge Shahabuddeen dissented from this border requirement,

14 but we would dwell briefly on his analysis because it is instructive.

15 The issue in Stakic was whether or not forced movement across a changing

16 front line was deportation, and then reversing the Trial Chamber, the

17 Appeals Chamber held that it was not. Now, Judge Shahabuddeen's dissent

18 is premised on his understanding that the essence of deportation is

19 forced movement from the control of one party to the control of another.

20 See paragraph 69 of his dissent, where he says:

21 "When one speaks of deportation across a border, what is involved

22 is 'forced displacement' of civilians; but that also happens," he says,

23 "in the case of forced displacement of civilians across a front line

24 separating an area of a state," and this is the key point, "under the

25 control of one party from an area of the same state to under the control

Page 96

1 of an opposing party."

2 He distinguishes forcible transfer because what the wrong-doer is

3 doing in the case of deportation is, in Judge Shahabuddeen's words,

4 "getting rid" of people. Now, this is significant because when Kosovo

5 Albanians crossed the border to Montenegro, the Federal Republic of

6 Yugoslavia did not get rid of them, if I can put it crudely. They

7 remained within the Federal Republic of Yugoslavia.

8 Now, Judge Schomburg in Naletilic argued against any cross-border

9 requirement, but his dissent is strictly obiter. We should, though, draw

10 your attention to the fact that Judge Schomburg rightly notes that the

11 Nuremberg judgement does not focus on the destination of people who were

12 forcibly moved before convicting Nazi leaders of deportation. We should

13 also point out that many of the subsequent Nuremberg trials appear to

14 reject a cross-border element. And you can find those cases well

15 summarised in pages 218 to 220 of the recent book by Kevin Jon Heller

16 about the subsequent Nuremberg trials.

17 But, in our respectful submission, when one looks at those cases

18 one is not really seeing deportation applied as a term of art. The

19 accused in those cases could just as easily have been convicted of

20 forcible transfer, and it is, we would suggest, dangerous to place too

21 much reliance on those cases for the precise meaning of the word

22 "deportation."

23 So our submission is that properly understood and consistent with

24 customary international law, deportation is the expulsion beyond the

25 control of one belligerent into the control of another.

Page 97

1 In our case, the Trial Chamber's conclusion that the border

2 between Kosovo and Montenegro was a de facto border is at paragraph 1683

3 of the judgement. The Trial Chamber relied on Kosovo's previous

4 autonomy, Montenegro's status as a republic, and the armed conflict in

5 Kosovo, and also the effect of the displacement on the individuals.

6 JUDGE AGIUS: One question, why does it have to be another

7 belligerent? In other words, why do you confine it to deportation from

8 the control of one belligerent into the control of another? Couldn't the

9 deportation be to an area, to a country, or across a border to

10 somewhere --

11 MR. HOPKINS: Yes.

12 JUDGE AGIUS: -- which is not involved in the conflict at all?

13 MR. HOPKINS: Yes, I would accept that.

14 JUDGE AGIUS: Thank you.

15 MR. HOPKINS: But in accepting that, the person is still

16 transferred to somewhere -- a jurisdiction that is in control of another

17 party, another country, albeit not a belligerent.

18 JUDGE AGIUS: Thank you.

19 JUDGE KHAN: Excuse me.

20 JUDGE AGIUS: Judge Khan.

21 JUDGE KHAN: When you say "party," what do you mean by "party"?

22 MR. HOPKINS: I mean another a country, another international

23 country.

24 JUDGE KHAN: Another country, thank you.

25 MR. HOPKINS: And I say that is consistent with the common

Page 98

1 understanding of the meaning "deportation."

2 So we would respectfully suggest that the Trial Chamber failed to

3 apply an essential element of deportation which, as we say, is the

4 expulsion of a person into the control of another party, in another

5 country. That criteria was not satisfied when people were transferred

6 from Kosovo to Montenegro. We struggle to see how crossing the border

7 from Kosovo to Montenegro is any different from crossing municipality

8 boundaries within Kosovo. The quality of any de facto border that is

9 most relevant, we say, involves crossing to another party. And that just

10 didn't happen when Kosovo Albanians went to Montenegro.

11 Now, in 2013, today, the answer would be different, but in 1999

12 the answer is clear. To start calling it a de facto border seems to us

13 to be artificial. It is a stretch and in our respectful submission

14 introduces needless uncertainty into the law to start calling what is a

15 de jure internal administrative boundary within a country a de facto

16 border.

17 JUDGE ROBINSON: So you say both Kosovo and Montenegro were under

18 the control of the same party?

19 MR. HOPKINS: Both under the control of the Federal Republic of

20 Yugoslavia.

21 JUDGE ROBINSON: In 1999?

22 MR. HOPKINS: In 1999. The position is, of course, different

23 today.

24 Moving then to our submissions on your fourth question, we are

25 asked to discuss in relation to Djordjevic's 16th ground of appeal,

Page 99

1 whether the indictment charged certain events. And our answer in

2 relation to each of your questions posed is no. The indictment did not

3 charge any of these incidents, and if we may begin by briefly looking at

4 each in turn.

5 The first is deportation from Kladernica between the 12th and the

6 15th of April, 1999, and the relevant paragraph is 72(c) of the

7 indictment where Kladernica is mentioned as being the subject of an

8 attack beginning on or around the 25th of March, so some three weeks

9 earlier. Now, you will note that Djordjevic was convicted of forcible

10 transfer for that attack - you see that in paragraphs 1702 to 1704, and

11 1630 to 1631 - but the later different attack on that village is just not

12 in the indictment.

13 Next, deportation from Suva Reka town between the 7th and the

14 21st of May. The relevant paragraph there is 72(d) of the indictment,

15 which refers to events in Suva Reka on the 25th and 26th of March for

16 which Djordjevic has been separately convicted. Now, there is no mention

17 in the indictment of these later events in May, and indeed if you look at

18 paragraph 72(d)(i), you will see that it narrows the time-period for

19 Suva Reka to a backstop date of the 1st of April.

20 Next, forcible transfer from the villages of Brocna and Tusilje

21 between the 25th and 26th of March and the 29th of March respectively.

22 The relevant paragraph of the indictment is 72(c) where six villages are

23 mentioned. Brocna and Tusilje are not there.

24 Next, forcible transfer from the village of Cuska on the

25 14th of May. The relevant paragraph of the indictment is 72(e), where

Page 100

1 you see that the allegation is limited to the city of Pec on the 27th and

2 the 28th of May.

3 Next, murder in Mala Krusa on the 25th of March. The relevant

4 paragraph of the indictment is again, I think, paragraph 75(c), where one

5 sees references to an unoccupied house and 105 victims are identified in

6 Schedule C to the indictment. As you know, that incident is the Batusa

7 barn killings, but Djordjevic was additionally convicted of persons burnt

8 to death on another house on a different day. And that incident is not

9 in the indictment.

10 Finally, murder in Podujevo on 28th of March, this is the

11 Skorpions that we've already discussed today. The relevant paragraph is

12 74(l), where one does see the allegation that women and children were

13 killed in the courtyard, as we've discussed, but Djordjevic was

14 additionally convicted of the murder of two men in a nearby cafe and that

15 further incident is not in the indictment.

16 Persecutions, this is the final point, sorry, persecutions

17 through murder of the murder of over 100 people in Pusto Selo on the

18 31st of March, 1999. You can see that persecutions are identified in

19 paragraph 77(c) of the indictment which refers back to paragraphs 27 and

20 28 of the indictment and paragraph 75. And killings in Orahovac

21 municipality are identified in paragraphs 75(b) and (c) on the

22 25th of March, 1999. So there is no mention at all of Pusto Selo or

23 anything remotely like this killing.

24 So we have briefly summarised how those incidents, we say, are

25 not in the indictment. Now, we have brief submissions on the importance

Page 101

1 of this issue. We say that the form of the indictment in this case and

2 the context in which it was put together are of some significance.

3 Firstly with the form, we say that this was not a vague indictment

4 capable of being cured. It was a very specific indictment. It quite

5 properly identifies specific locations and dates, and by doing so so

6 carefully and explicitly, an accused should be able to rely on it.

7 Turning to the context when the operative indictment in this case

8 was finalised, it was the fourth amended indictment. It was approved in

9 July 2008, and it is essentially the same indictment as that which the

10 accused in the Milutinovic trial faced with a few amendments, including

11 the Podujevo incident. The Prosecution's pre-trial brief was filed on

12 the 1st of September, 2008, and Djordjevic's trial began in January of

13 2009.

14 Now, the relevant context that we rely on is that the Office of

15 the Prosecutor filed its closing brief in Milutinovic on the

16 15th of July, 2008, about a week after it finalised the fourth amended

17 indictment in Djordjevic's case. And we say this is relevant because the

18 Office of the Prosecutor must have known exactly what allegations it

19 wanted to charge Djordjevic with, and those allegations are in the fourth

20 amended indictment, nowhere else.

21 So we do not understand why if the Prosecution wanted to charge

22 Djordjevic and hold him criminally responsible for additional crimes, it

23 couldn't put them in the fourth amended indictment. It is also puzzling

24 to us that in our case at paragraph 321 of the Prosecution's response

25 brief to our appeal, the Prosecution states confidently, for example,

Page 102

1 that deportation from Tusilje on the 29th of March, 1999, was covered by

2 the indictment. It suggests there that all the Trial Chamber did in its

3 judgement was make more detailed findings. But in the Sainovic appeal

4 hearing, the Prosecutor agreed that Tusilje should have been pled in that

5 indictment and that no corrective actions were taken in the pre-trial

6 brief or 65 ter filings. You can see that in the transcript from that

7 hearing on Monday, the 11th of March, 2013, at page 240.

8 So the Prosecution did not amend the fourth amended indictment

9 against Djordjevic to encapsulate these additional allegations about

10 which you've asked. That must have been, we say, a deliberate choice.

11 It had all the witness statements, had all the information it needed.

12 They had just finished the Milutinovic trial about the same events. And

13 we ask the Appeals Chamber to affirm the importance of the indictment.

14 This Tribunal should not, we say, allow the Prosecution to file an

15 indictment after careful consideration and a deliberate choice and then

16 enter additional convictions. Even if some of these crimes are mentioned

17 somewhere in witness statements or a Prosecution witness summary or a

18 brief somewhere, in this case we say it makes no difference because of

19 the context.

20 Now, that concludes my submissions on question four. Unless

21 there are any questions from the Panel, I would now pass over to

22 Ms. O'Leary who will address you on question five.

23 JUDGE AGIUS: There are none, so Ms. O'Leary.

24 MS. O'LEARY: Good morning, Your Honours. I'm Marie O'Leary and

25 I thank you for the opportunity to address you. I'll be discussing the

Page 103

1 Djordjevic appeal brief, grounds 18 and 19, with particular focus on the

2 Panel's inquiry regarding concurrent convictions.

3 In its fifth interrogatory, the honourable Chamber has asked the

4 parties to discuss, in relation to our ground of appeal and with

5 reference to the Trial Chamber's findings, why convictions for the crimes

6 on the basis of both commission through participation in a joint criminal

7 enterprise and aiding and abetting based on the same conduct better

8 reflect the totality of Djordjevic's conduct? The short answer,

9 Your Honours, is they don't. No one, not the Trial Chamber in their

10 judgement and not the Prosecution in their response, no one has been able

11 to point to where there is an additional factor considered in one

12 conviction that is not considered in the other that would call for both

13 to better reflect his conduct. In fact, we would submit that it does

14 quite the opposite. As you've read in our brief, the Defence submits

15 that these concurrent convictions are an error of law, one for which we

16 are seeking relief from the Appeals Chamber.

17 And at the outset, all of our Defence submissions on concurrent

18 convictions must be taken with two considerations in mind. The first

19 consideration is that it is unequivocal that Vlastimir Djordjevic was

20 convicted twice for the same conduct. Aside from the clear language that

21 was used in the disposition at paragraphs 2230 and 2231, they clearly

22 list two modes of liability for each count. It's also evident in the

23 Trial Chamber's statement at paragraph 2214. There, in stating that it

24 would "determine sentence accordingly," it considered a JCE 1 liability

25 with an aggravating factor based on superior responsibility. But it also

Page 104

1 considered that, and I quote, "the accused's conduct was such as to also

2 render him liable to conviction and punishment for aiding and abetting

3 the offences established." It is this language that distinguishes this

4 case from the recent case of Gatete where the Appeals Chamber determined

5 that a mere reference to other modes of liability were not additional

6 convictions. And that's Gatete appeals judgement paragraph 235.

7 There is no question that Mr. Djordjevic was, in fact, convicted

8 on two modes of liability for each of the five counts, and it is

9 unambiguous that the single sentence issued by the Trial Chamber

10 reflected these dual convictions.

11 The second overarching consideration that you must take into mind

12 on our concurrent conviction challenges is that the Defence does not

13 challenge that it can be possible to have multiple convictions under

14 Article 7(1) of the ICTY Statute. And I raise this because the

15 Prosecution has suggested that this was an issue on appeal at

16 paragraphs 373 and 377 of their response. This is not the case. Our

17 position is that these specific modes of liability of JCE and aiding and

18 abetting are not permissible concurrent convictions when based on the

19 same conduct.

20 And, Your Honours, in our written submissions both parties have

21 pointed to the fact that concurrent convictions for JCE 1 and aiding and

22 abetting have not been before this Appeals Chamber and we must consider

23 why this specific situation has not arisen. Why, as far as we can

24 ascertain, has Vlastimir Djordjevic been the first person convicted on

25 these two specific modes of liability --

Page 105

1 JUDGE AGIUS: Ms. O'Leary, I haven't heard as yet complaints or

2 remarks from the interpreters, but in my opinion, you are going a little

3 bit too fast, almost also too fast for me. Yes, I am seeing the

4 interpreters --

5 THE INTERPRETER: Thank you, Your Honour.

6 JUDGE AGIUS: -- nodding, so if you could slow down a little

7 bit --

8 MS. O'LEARY: Absolutely. Thank you.

9 JUDGE AGIUS: -- I would appreciate it. Thank you.

10 MS. O'LEARY: My apologies.

11 As discussed at length in our brief and reply, the cases relied

12 on by the Trial Chamber for the dual convictions to better reflect

13 conduct - and those are Nahimana, Ndindabahizi, and Kamuhanda - are not

14 instructive. Your Honours, they are not JCE cases. And if we dig deeper

15 to see where these cases found a basis for concurrent convictions under

16 7(1), we come to the Akayesu trial judgement where at paragraph 468 it

17 states that concurrent convictions are permissible on the same set of

18 facts in three specific circumstances, the third being where it is

19 necessary, and I quote, "to record a conviction for both offences in

20 order to fully describe what the accused did."

21 It goes on to state in that paragraph, 468, "however, the Chamber

22 finds that it is not justifiable to convict an accused of two offences in

23 relation to the same set of facts where ... one offence charges

24 accomplice liability and the other offence charges liability as a

25 principal."

Page 106

1 The very Chamber that iterated the allowance for concurrent

2 convictions on the same facts to better reflect the totality of an

3 accused's conduct prohibits concurrent convictions for principal

4 liability, JCE, and accomplice liability, aiding and abetting.

5 Once a finding of commission by participation in a JCE is

6 properly made, all other alternatively charged modes of liability fall

7 away. They are subsumed. This is seen in trial judgements and even

8 those that have been issued since briefing. The Trial Chambers at the

9 ICTY have yet adopted the practice of declining to convict on other

10 potential modes of liability after reaching a JCE finding. And this was

11 seen most recently in the Stanisic and Zupljanin trial judgement at

12 volume II, paragraphs 529 and 780; in the Gotovina trial judgement at

13 paragraphs 2375 and 2587; and in the Tolimir trial judgement at

14 paragraph 1174. In stating that it would not make further convictions on

15 modes of liability after reaching a JCE conviction as best encapsulating

16 conduct, the Tolimir Trial Chamber specifically referred to that

17 Milutinovic et al. jurisprudence that we have cited to in our brief. And

18 that's at footnote 4509 of the Tolimir trial judgement.

19 With JCE and aiding and abetting, it comes down to the

20 fundamentals of these modes of liability, one is principal liability and

21 one is accomplice liability, and the principal cannot be the accomplice

22 on the same crimes, just as the accomplice cannot be the principal. And

23 this, we would submit, is common sense. So why is this the first time

24 that the Appeals Chamber has heard of this issue of concurrent

25 convictions for JCE I and aiding and abetting? Because the

Page 107

1 Trial Chambers know that it is legal error to convict on both and it is a

2 legal error we are asking this honourable Chamber to remedy.

3 So to get to the heart of your question number five,

4 Your Honours, in this case, concurrent convictions do not better reflect

5 the totality of Djordjevic's conduct. Maintaining all of our other

6 grounds of appeal that we have put forward, the Trial Chamber did not

7 give a reasoned opinion as to how such double conviction would better

8 reflect the total of his conduct. Importantly, if we're looking at the

9 specific conduct they analysed, there is not one additional fact that is

10 considered for that aiding and abetting conviction. Paragraph 2163

11 states that, and I quote:

12 "The accused acted to assist the commission of these crimes," but

13 then it goes on to recall its, I quote, "earlier findings" on conduct,

14 those that were the basis of JCE liability, and in particular we're

15 talking about a lack of investigation and concealment of crimes. The

16 conduct cited as actus reus of the aiding and abetting paragraph at 2163

17 and 2194 is identical to the conduct established as the actus reus of a

18 significant contribution to a JCE at paragraphs 2155 to 2157.

19 The Gotovina --

20 THE INTERPRETER: Kindly slow down for the sake of the

21 interpreters. Thank you.

22 MS. O'LEARY: My apologies.

23 The Gotovina appeal judgement at paragraph 149 recently noted

24 that "a finding of a significant contribution is not equivalent to a

25 substantial contribution required to enter a conviction for aiding and

Page 108

1 abetting." In the Djordjevic trial judgement, there is absolutely no

2 explanation as to how that finding, that Djordjevic contributed

3 significantly to a JCE, and that's at paragraph 2158, somehow transforms

4 into one of substantial effect at paragraph 2163 or how he substantially

5 assisted, which are the words used as paragraph 2194.

6 That said, the point where concurrent convictions truly fail to

7 better reflect conduct is in establishing the mens rea.

8 At paragraph 2158, Your Honours, the Trial Chamber made a finding

9 of a JCE I mens rea and it was based on loose circumstantial finding that

10 Djordjevic's crimes, found largely as a failure to investigate and

11 concealment of crimes, were committed with the knowledge of, and I quote,

12 "crimes committed by Serbian forces in Kosovo."

13 Now leaving aside that the nature of such concealment and lack of

14 investigation necessarily includes the knowledge of crimes, knowledge

15 does not point to an actual intention to be a part of a JCE and it

16 doesn't point to a commonality working with persons with a shared common

17 purpose. Much less does it show the specific persecutorial intent

18 necessary for the crime of persecution. And, Your Honours, while intent

19 can be derived circumstantially from knowledge and acts, it must be done

20 beyond a reasonable doubt. It must be the only reasonable conclusion.

21 However, Your Honours, there is reasonable doubt in the

22 Trial Chamber's own analysis. In that exact same paragraph, 2158, the

23 Trial Chamber states that had it not been able to be satisfied with a

24 JCE I finding, it would have been satisfied with a JCE III intent of

25 awareness of the crimes and a willing risk.

Page 109

1 Paragraph 2158 is extremely telling. It says that the Chamber

2 determined its findings could support a mens rea of either JCE I or

3 JCE III. And by paragraph 2163 we have a third reasonable conclusion of

4 a finding of mens rea, that his knowledge equated to an accomplice

5 liability level, that he knew that his acts were assisting in the

6 commission of crimes.

7 Your Honours, we would submit that there are three distinct

8 levels of mens rea found here: One, intention; two, recklessness; and

9 three, awareness. This, Your Honours, does not provide a reasonable

10 opinion that establishes beyond a reasonable doubt the mental elements

11 necessary to any of these modes of liability. As set out in grounds 10

12 and 11 of our brief, the Trial Chamber failed to make sufficient findings

13 on the mens rea required for either JCE or aiding and abetting.

14 And to answer this question, it doesn't better reflect the

15 totality of Djordjevic's conduct, it does quite the opposite. We're left

16 wondering what intent was actually found beyond a reasonable doubt. The

17 problem in these concurrent convictions, Your Honours, is not with the

18 nuances of significant contribution versus substantial effect, it is not

19 in the actus reus. It is with the lack of concrete findings of a

20 mens rea for either of these convictions, and if you remove the need to

21 define that mental element beyond a reasonable doubt for conviction,

22 you've erased the element of mens rea in the criminal law.

23 JUDGE AGIUS: I saw you looking at the clock. You have roughly

24 six minutes left.

25 MS. O'LEARY: Thank you, Your Honour.

Page 110

1 JUDGE AGIUS: Thank you.

2 MS. O'LEARY: This error matters in three ways: One, it is

3 incorrect law generally that must not be allowed to perpetuate as

4 jurisprudence. It is not what was envisioned in the jurisprudence of

5 better reflecting the totality of conduct.

6 Two, it is incorrect law in this case that must be remedied.

7 This is not a theoretical challenge. This is a case against Vlastimir

8 Djordjevic, and multiple convictions create extraneous prejudice. This

9 was cited by the Krstic appeals judgement at paragraph 217 and developed

10 further in the Kunarac appeals judgement at paragraph 169.

11 The third consequence it created is it created an incorrect

12 sentence, and I will come more to that in sentencing briefly.

13 I want to make one point on ground 18(B), Your Honours, with

14 regard to the cumulative convictions that we are challenging. We're

15 saying that the crimes charged as stand-alone crimes of murder,

16 deportation, and forcible transfer in addition to the persecutory crimes,

17 Counts 1, 2, and 3 of the trial judgement are cumulative to Count 5. And

18 so it's with note that I comment on the most recent judgement of the

19 ICTY, in the Stanisic and Zupljanin Trial Chamber that found exactly

20 this: Deportation, forcible transfer, and murder as a crime against

21 humanity are impermissibly cumulative when found as underlying acts of

22 persecution. In refusing to enter separate convictions for the

23 stand-alone counts, the Stanisic and Zupljanin Trial Chamber said to do

24 so would lead to the result of convicting an accused twice for the same

25 crimes. And that's in volume II at paragraph 912.

Page 111

1 Your Honours, this Appeals Chamber has stated that there is an

2 insoluble nexus between conviction and sentence. And that's the

3 Miodrag Jokic sentencing appeal judgement, paragraph 26. In the present

4 case the conduct has been convicted and punished twice. That's from

5 paragraph 2214 of the trial judgement.

6 And, Your Honours, significantly, we're asking you at a minimum

7 to remove three counts and one mode of liability as based on the same

8 facts and thus impermissibly concurrent and cumulative convictions. They

9 were factored into the consideration of a single sentence and served to

10 raise his sentence.

11 We have outlined further errors in ground 19 of our brief and

12 we're asking you to look at the totality of Mr. Djordjevic's conduct,

13 especially in light of our other grounds of appeal, and quash both

14 convictions of joint criminal enterprise and aiding and abetting as not

15 properly found. These are errors of law that have invalidated the

16 judgement.

17 And subject to any questions, Your Honours, these are my remarks.

18 JUDGE AGIUS: Go ahead.

19 MS. O'LEARY: Then I will pass the floor on briefly for a

20 conclusion by counsel Djurdjic.

21 JUDGE AGIUS: Mr. Djurdjic, good morning to you. Go ahead.

22 You've got about three -- three minutes left, three to four minutes.

23 MR. DJURDJIC: [Interpretation] Good morning, Your Honours. Good

24 morning to my learned friends from the Prosecution.

25 When we addressed you first this morning we said that the

Page 112

1 liability and responsibility of Mr. Djordjevic was exaggerated. We said

2 that his sentence is too harsh. If we step back and look at the jig-saw

3 pieces relied on by the Trial Chamber, we would suggest that at most it

4 shows a man who did too little rather than somebody who had a criminal

5 intent. A man remote from the chaos others created and who indeed tried

6 to cover things up. His role was only but a small one.

7 We submit that the significant errors of law and fact including a

8 lack of reasoned opinion for his convictions renders the trial judgement

9 invalid and all counts must be quashed with Mr. Djordjevic as being

10 acquitted on all counts of the indictment.

11 If Mr. Djordjevic is to remain convicted, we suggest that the

12 more coherent and logical approach would be under Article 7(3) of the

13 Statute and only where he had the requisite knowledge and should have

14 chosen a different course.

15 We suggest that it is findings of omissions and knowledge that

16 are the source of any guilt should rather be actions -- rather than

17 actions and positive intent. If you are of the view that guilt remains,

18 we would respectfully suggest that it is on a limited basis and calls and

19 warrants a much reduced sentence. Briefly on our suggested reduction, we

20 would suggest that the Trial Chamber's finding that Djordjevic played a

21 more crucial role than Lukic, Pavkovic, Sainovic, does not stack up. It

22 is concerning conclusion given that Djordjevic's trial judgement did not

23 even scrutinise the role of those persons in any detail, nor did it

24 systematically consider their role in the JCE.

25 Although Djordjevic's role perhaps merits criticism, he is far

Page 113

1 less implicit in the Kosovo war in 1999 than this trial judgement

2 concluded. There are clear errors of law and fact in the judgement which

3 we respectfully ask the Appeals Chamber to rectify with a significant

4 reduction of the sentence. Thank you.

5 JUDGE AGIUS: Thank you, Mr. Djurdjic.

6 Now we move to the response by the Prosecution -- yes. Yes,

7 Judge Tuzmukhamedov has a question.

8 JUDGE TUZMUKHAMEDOV: Thank you. I would ask the question and

9 then would leave it to the discretion of the lead counsel to decide who

10 of his able colleagues would be most fit to handle it, and the question

11 is like this: At paragraph 2134 of the Trial Chamber, the

12 Trial Chamber -- of the trial judgement, the Trial Chamber concludes that

13 the evidence confirms that a joint criminal enterprise involving your

14 client was established by mid-January 1999. And then further the

15 judgement states that this JCE may well have existed before that time.

16 So my question is two-fold. The first layer or part of this question is:

17 Can you direct me or the Bench to anywhere in the trial judgement where

18 the Trial Chamber found it proven beyond reasonable doubt that a JCE

19 involving your client existed prior to mid-January 1999? And the second

20 layer or second part of that question is: If the answer to the first

21 question is negative, then can you direct me to any instances in the

22 trial judgement where the Trial Chamber imposed criminal liability on

23 your client stemming from events occurring prior to mid-January 1999?

24 Thank you.

25 JUDGE AGIUS: Thank you. Yes, go ahead.

Page 114

1 MR. HOPKINS: Dealing with the first part of your question first,

2 the Trial Chamber's conclusion at the paragraph you referred to is that

3 the -- the only conclusion it could ultimately reach was that the

4 earliest the JCE existed was January 1999. That's as high as the

5 Trial Chamber put it, so not before that date. And I know, of course,

6 that a similar issue and similar questions were addressed in the Sainovic

7 appeal. But in Djordjevic's case, moving to the second question about

8 whether or not he is convicted on the basis of his conduct prior to the

9 existence of the JCE, the answer to your question is an unequivocal yes.

10 If you look even just at the contents pages of the judgement, for

11 example, and you see the Trial Chamber's findings on Djordjevic's role

12 and knowledge running from page 733 to page 781 -- the section finishes

13 at page 787, excuse me. The first five or six sections of that trial

14 judgement's findings all relate to events in 1998. And it does, we say,

15 result in a logical impossibility that you just cannot participate in a

16 JCE before it exists.

17 Now, of course knowledge from 1998 could be used, for example, as

18 a means to infer a similar knowledge or intent in the later period, but

19 there's no way the conduct from the earlier period can be said to mean

20 that one person is participating in events that happened after that. And

21 I would rely, for example, to make good that submission, if you look at,

22 say, the Nuremberg judgement, said to be one of the sources of JCE and

23 customary international law, albeit we've challenged that in our appeal

24 brief, you do not see, for example, the banker Schacht convicted of

25 events during the war or the aggressive war. And why do you not?

Page 115

1 Because all of his conduct was pre-war or the vast majority of his

2 conduct was pre-war, financing the Nazi rearmament regime. If you could

3 rely on events before the JCE is created, you would not see Schacht

4 acquitted. So that was my answer to your question.

5 JUDGE TUZMUKHAMEDOV: Thank you, counsel.

6 JUDGE AGIUS: Thank you.

7 Now, Mr. Wood.

8 MR. WOOD: Yes, good morning, Mr. President, Your Honours.

9 JUDGE AGIUS: Good morning.

10 MR. WOOD: My name is Kyle Wood. I will provide the

11 Prosecution's overall response to General Djordjevic's appeal and I will

12 also answer Your Honours' first question relating to his authority as

13 assistant minister of the interior. I will answer Your Honours' third

14 question, which deals with deportation. My colleague Ms. Verrall will

15 then rise to assist Your Honours with your second and fifth questions

16 relating to aiding and abetting. And then with the remaining time, I'll

17 deal with Your Honours' fourth question about the indictment.

18 Now, turning then to our response. Despite, Your Honours, what

19 you've heard this morning, the Chamber reasonably found that

20 General Vlastimir Djordjevic was one of the most crucial members of a

21 joint criminal enterprise that unleashed an 88-day campaign of terror and

22 extreme violence against Kosovo Albanians, a campaign that left at least

23 724 people dead, that displaced hundreds of thousands of people, and that

24 reduced many Kosovo Albanian villages to smoking ruins.

25 Now, contrary to Djordjevic's arguments, both here and in his

Page 116

1 brief, the Chamber was reasonable to conclude that he played a key role

2 in co-ordinating the work of the forces at the heart of this campaign in

3 1998 and in 1999. As Your Honours know, he gave badges to notoriously

4 criminal paramilitaries, that's the Skorpions; he sent them to Kosovo and

5 he gave them guns, and I will address that further. Further, he played a

6 leading role, as you've heard, in the clandestine operations to hide the

7 bodies of hundreds of murdered Kosovo Albanian civilians at facilities

8 that he controlled, in an operation that he directed. And he made sure

9 that nobody would ever be punished for the crimes that he knew his

10 subordinates were committing in Kosovo. Now, these are the key factors,

11 the key contributions, Your Honours, to his conviction.

12 In challenging these findings, as you've heard this morning,

13 Djordjevic generally rehashes his failed trial argument, in which he

14 tries to place blame both above him and below him in the chain of command

15 by portraying himself as a colonel-general without any power and as a

16 commander without any authority. The Trial Chamber, Your Honours, heard

17 this evidence, they considered this evidence, and they rejected it based

18 on the totality of the evidence before them, based on a detailed analysis

19 of the entire trial record.

20 Here, on appeal, in both his brief and this morning, he has

21 failed to show the Chamber's findings were those that no reasonable

22 Trial Chamber could reach. As Your Honours have held repeatedly and as

23 was repeated today this morning at the beginning of this hearing, an

24 appeal is not a trial de novo. It's not a chance for him to run his

25 trial arguments again for a second go. Rather, he has a burden to meet

Page 117

1 on appeal and he's failed to meet that burden.

2 To put the arguments of the Defence in a proper context and in

3 response to them, I'll focus today on three critical areas that were

4 essential to the conviction of General Djordjevic - his role and

5 contributions to the JCE, his knowledge of crimes, and his intent that

6 they be committed.

7 Now, first turning to his role and his contributions, contrary to

8 what he argues to his brief and what you've heard here today, the Chamber

9 reasonably found that Djordjevic exercised enormous authority throughout

10 the indictment period. That's in 1998 and in 1999. And of course, the

11 Prosecution accepts that the indictment period for the purposes of the

12 crimes is January to June 1999. In his challenge to the Chamber's

13 findings regarding his role, he repeats his failed argument from trial

14 that in 1999 he was essentially robbed of any authority over the RJB

15 units on the ground. Now, in rejecting this argument, the Trial Chamber

16 pointed to the myriad of specific examples of the way in which Djordjevic

17 continued to exercise authority in 1999, including most critically

18 between -- in the indictment period. I'll highlight some of these now,

19 findings that you generally haven't heard about from today's -- this

20 morning's presentation.

21 Specifically, the Chamber found that he played a role in planning

22 and co-ordinating the work of the MUP and VJ forces in Kosovo, that's at

23 2154; that he contributed to the deployment of paramilitary units in

24 Kosovo, including, but not limited to, the Skorpions unit in March 1999;

25 he played a leading role in efforts to conceal murders by moving corpses

Page 118

1 from Kosovo and hiding them in graves in facilities in Serbia that he

2 controlled; and he failed to take any measures to ensure a proper

3 investigation.

4 Turning first to his role in co-ordinating the work of the MUP

5 forces in 1999. The evidence shows that there was plainly, Your Honours,

6 a plan in -- for -- that the MUP was planning a large-scale offensive in

7 the spring of 1999 and this is critical to Djordjevic's contributions.

8 During a 17 February 1999 meeting in the MUP staff in Pristina in which

9 Djordjevic also attended, Stojiljkovic, who was the minister of the

10 interior, said:

11 "Within two or three days of an attack by NATO, we have to put

12 our plans in motion and use the time to clear the territory of

13 terrorists." That's at paragraph 2020.

14 Critically, Stojiljkovic also said that his subordinates were to

15 "approach and engage volunteers carefully, linking their engagement

16 through the reserve police force when assessed as necessary."

17 The evidence shows and the Chamber reasonably found that

18 General Djordjevic played a key role in executing this plan. He remained

19 a member of the Joint Command throughout 1999. Further, he was a member

20 of the MUP collegium, Your Honours. That's at paragraph 2154 of the

21 trial judgement. As Your Honours will recall, the MUP collegium was a

22 forum in which requests were received for approval of additional units

23 being sent to Kosovo and in which anti-terrorist operations were

24 discussed in detail. That's at paragraph 1989.

25 And of course, he deployed a paramilitary unit, the Skorpions, to

Page 119

1 Kosovo on 28 March 1999 that massacred 14 women and children.

2 Your Honours should further note the Chamber also found that he

3 was involved in deploying other units to Kosovo in the same time-period,

4 and this is, of course, leading up to the campaign that was unleashed on

5 the 24th of March at the same time the NATO bombing campaign began. For

6 example, trial judgement paragraph 61 lists a number of instances in

7 which Djordjevic deployed PJP or special police units to Kosovo for

8 various purposes generally described as "for the purpose of carrying out

9 special security tasks in Kosovo." And as you'll see in paragraph 61,

10 these orders happened throughout March and into April, including on

11 18 March, on 21 March, on 23 March, on 24 March. This is further

12 evidence, Your Honours, of Djordjevic's role in the plan that the MUP was

13 plainly putting together for the operation that would become the campaign

14 of terror and extreme violence that are the subject of the crimes with

15 which he is charged.

16 Turning specifically to paramilitaries, now as I've explained, in

17 a 17 February 1999 meeting of the MUP staff, General Stojiljkovic said

18 his subordinates were to engage and -- approach and engage volunteers

19 carefully, that is, to prepare for their use. On 18 February, the very

20 next day, Djordjevic sent a dispatch telling his subordinates to

21 "establish complete control over volunteer and paramilitary units and

22 their members." Now, this is important to understand in the context of

23 the deployment of the Skorpions, Your Honour. It was the Skorpions and

24 the deployment of that unit with which he was most personally involved.

25 Now, the Chamber found that he essentially solicited their use, their

Page 120

1 service. That's at paragraph 1935. The Chamber found that he made sure

2 they got MUP badges. That's at paragraph 1942. That he would make sure

3 that they would get bussed to Kosovo where they were given uniforms and

4 guns. That's at paragraph 1937.

5 As Your Honours know, the Chamber also found he knew the unit had

6 a reputation for criminal violence from its fighting in Kosovo [sic].

7 And that's at paragraph 1953. Now, how did he know that? The Chamber's

8 finding on this point was reasonable, Your Honours, based on a number of

9 factors. First of all, I take you back to paragraph 1935 of the trial

10 judgement in which the Chamber found he told K92 to gather Medic's men.

11 And according to the testimony of Trajkovic, who was the commander of the

12 anti-terrorist police which is the unit to which the Skorpions would

13 eventually be attached to, it was well-known that the Skorpions were

14 always referred to as a distinct unit, as the Skorpions.

15 It's also clear that he knew that they were volunteer -- that

16 there were paramilitary -- a paramilitary unit and that he knew and in

17 the defining of -- I'm sorry, in Djordjevic's own words, he knew that

18 paramilitary units were oftentimes a front for criminal interests, and

19 that's in his testimony at paragraph -- transcript T 945 [sic].

20 And of course he knew about their prior experience in Croatia.

21 And it's also important to know -- that's at, I'm sorry, transcript

22 T 9696 to 9697. And it's also important to note, Your Honour, that the

23 Chamber found that the Skorpions had previously been engaged with a

24 different unit of the MUP, the other arm, if you will, the DB, when they

25 were engaged in Croatia.

Page 121

1 Nevertheless, as the Chamber found, he failed to engage in any

2 criminal background checks of these units. That's clear, Your Honours,

3 from the findings of the Trial Chamber regardless of whether they would

4 have found a criminal background from Croatia. What is clear is that no

5 criminal background checks were done whatsoever and what is also clear in

6 the finding of the Chamber is that this was an obligation of Djordjevic.

7 Under the law, as a police officer, if he's going to give a group of men

8 authority as police officers, badges, guns, and send them particularly

9 into an area of inter-ethnic hostility, he's required under the law to

10 make sure that these men are worthy of that privilege. And it's plain

11 that he did not in this case.

12 Now, as Your Honours know, the Skorpions were responsible for the

13 massacre of 14 women and children shortly after they arrived in Podujevo

14 on 28 March 1999. It found that Djordjevic was informed about this

15 massacre almost immediately by a telephone from his subordinate. Now,

16 rather than investigate this incident and hold the perpetrators

17 accountable, he actively thwarted -- in the finding of the Chamber, to

18 thwart any probe into the killings. As the Chamber found in

19 paragraph 1957, he took no disciplinary action upon hearing of this

20 massacre. There was no follow-up on the 30 March 1999 report until

21 May 1999, and even then, Your Honours, of course it's important to note

22 that May 1999 is after the Skorpions had already been redeployed into

23 Kosovo, even then only two perpetrators were detained and even then for

24 only ten days. And as the Defence said this morning, there was -- nobody

25 was prosecuted for these crimes during the tenure of Djordjevic. Even

Page 122

1 though it is clear in the finding of the Chamber at trial judgement

2 paragraph 196 that it was Djordjevic and the MUP who were responsible for

3 the paramilitaries and who were responsible for making sure they would be

4 punished or that the incident would be investigated fully.

5 Here today Djordjevic fails to show these findings were those

6 that no reasonable Trial Chamber could have made. Here, as in other

7 instances in his arguments, he seeks to substitute his own evaluation of

8 the evidence for that of the Trial Chamber. And in his brief I'll note

9 he seeks to rely specifically on the evidence of two witnesses that the

10 Chamber listened to, evaluated, and rejected as not being credible. He

11 seeks to rely on these same witnesses who -- for the argument that the

12 perpetrators of these crimes were not redeployed to Kosovo afterward.

13 The Chamber found that this was also not believable, Your Honours. It

14 found that all but one of the men were redeployed to Kosovo in

15 April 1999. That's at paragraphs 1964 and 1965 of the judgement. And

16 that's not surprising, considering the poor investigation or lack of

17 investigation that had been carried out into this massacre and to those

18 who were -- who might be responsible for it.

19 And contrary to what the Defence argues today, he was not

20 convicted of any crimes that they committed afterwards, but it is

21 noteworthy that a member of the Skorpions -- that another soldier

22 remembered -- described seeing them in the presence of fleeing

23 villages -- of villages that were burning and with villagers fleeing from

24 those villages.

25 Now, turning next to the concealment of bodies, it's important to

Page 123

1 note, Your Honours, that Djordjevic himself admitted involvement in this

2 incident. And when I say "incident," really what I mean is a month-long

3 clandestine operation that involved digging up bodies of hundreds of

4 murdered Kosovo Albanians, transporting them hundreds of miles into

5 Serbia, and burying them in facilities controlled by Djordjevic's RJB.

6 He knew these victims were Kosovo Albanians, some of whom had been

7 murdered by MUP officers, and he also said that he knew it was shameful

8 and wrong to bury them in this way. And I refer Your Honours to

9 paragraphs 1973 -- paragraph 1973 of the trial judgement and various

10 places in the trial testimony of General Djordjevic, for example, T 9723,

11 9727, 9730 to 9733, 9821, 10002, 10004, 10006, and 10008 through 11. And

12 you should see on your screen now, Your Honours, a couple of those

13 admissions.

14 General Djordjevic said:

15 "I knew then as I know now that it wasn't right, and I'm willing

16 to assume responsibility for a rash action."

17 And of course the evidence shows that this was anything but a

18 rash action but something that took place over the period of weeks as the

19 campaign of terror and violence was being committed in Kosovo.

20 Another quote, if I can move to the next slide. If Your Honours

21 are ready. Okay.

22 JUDGE AGIUS: Go ahead.

23 MR. WOOD: The next quote he said, he told the Chamber:

24 "I'm aware this was a big mistake I made, but what happened

25 cannot be made undone. I am ashamed of my deeds and I believe that the

Page 124

1 Court's decision will be adequate and I will be held responsible for what

2 I did."

3 Now, the Chamber's finding that Djordjevic was -- directed this

4 campaign, that he may have been the main orchestrator of the burial of

5 the bodies at Batajnica, it's consistent with all the evidence. The

6 Chamber found based on this evidence that he directed this operation in

7 which MUP drivers, bodies -- brought bodies of more than 800 victims from

8 Kosovo into Serbia in MUP trucks to be buried in two MUP facilities that

9 Djordjevic controlled. This is the Batajnica SAJ or anti-terrorist

10 police training centre and the Petrovo Selo PJP or special police centre.

11 The Chamber found that he was the one person in charge of all the MUP

12 personnel involved. That's at paragraph 2118. And that he even

13 personally chose the grave-sites of where the bodies should be buried

14 when they arrived at Batajnica. Before each truck arrived he told the

15 person who was there to deal with the bodies, that it was coming, and

16 what to do with it.

17 When he was told that the murders -- that the bodies had been

18 discovered in Tekija and in Lake Perucac, he told his subordinates to

19 cover up those crimes. He told his subordinates to destroy the

20 refrigerated truck that had been found in the Danube, and he even

21 authorised payment of 10.000 dinars to those who were involved. Now,

22 this is an important contribution the Chamber found. Contrary to what

23 you've heard this is not an ex post facto covering up of crime. It was a

24 contribution because it happened during the time that the campaign of

25 violence and terror was being unleashed on Kosovo Albanians. In fact,

Page 125

1 the Chamber found even that Djordjevic was in Kosovo in April 1999 at the

2 same time that the campaign was happening, at the same time that this

3 operation of hiding bodies was also ongoing.

4 You've heard also, turning to knowledge and intent, Your Honours,

5 in the brief, that Djordjevic tries to portray himself as a man who was

6 cut off, that he had no idea of what was happening in Kosovo, but of

7 course the Chamber found differently and that's based on the evidence and

8 based on something you heard even this morning, Your Honours. The

9 Chamber found that he was notified through oral reports of his

10 subordinates, through the media, through his personal observations. And

11 as the Defence noted this morning or as the appellant noted this morning,

12 he was informed almost immediately of the massacres at Podujevo by

13 telephone. Despite this knowledge of things that were happening in

14 Kosovo, he did nothing to investigate, did nothing to stop. This showed,

15 Your Honours, that he did have the intent that these crimes be committed,

16 his continued involvement in the JCE.

17 Now, with this context in mind, Your Honours, I'll turn to

18 answering Your Honours' first question. Now, I'll note in relation to

19 the answer I heard this morning that it sounds awfully familiar and it's

20 because the argument you heard this morning is very, very similar to the

21 argument that the Defence tried to run at trial and it was definitively

22 rejected by the Trial Chamber. After its evaluation of all the evidence,

23 it came to a reasonable conclusion. Now, Your Honours asked that the

24 questions be read into the record so I'll do that.

25 "Discuss, in relation to Djordjevic's subground of appeal 9(A),

Page 126

1 how the areas of responsibility of Assistant Ministers Petar Zekovic and

2 Obrad Stevanovic would overlap with, and impact on, Djordjevic's

3 authority as Assistant Minister of Interior, and in relation to subground

4 of appeal 9(F), Djordjevic's role in the deployment of the Skorpions."

5 Now, contrary to what the Defence said -- to what the appellant

6 said this morning, the Chamber did consider all the laws, they did

7 consider all the witnesses, and what they found is that the witnesses

8 that Djordjevic put on in support of his argument were -- or that his

9 argument was unsupported and not credible. The Chamber reasonably found

10 that the areas of responsibility of Zekovic and Stevanovic did not

11 overlap with, nor impact on, Djordjevic's general authority as chief of

12 the RJB. Though all three men were assistant ministers, Djordjevic

13 outranked both Stevanovic and Zekovic and the Chamber reasonably found

14 that both men headed departments that were within his RJB.

15 Starting first with Zekovic. Now, the Chamber found, looking at

16 Exhibit P263 and P537, that Zekovic was head of the administration for

17 joint affairs. The administration for joint affairs, the Chamber found,

18 was an organisational unit of the RJB. That's at paragraph 41 in

19 Exhibit P357, Article 13. It also found that the RJB departments

20 functioned under the control of Djordjevic. That's trial judgement

21 paragraph 40.

22 It's worth noting here, Your Honours, that the Defence -- the

23 appellant offers no support for his argument that the MUP was a series of

24 fiefdoms riven by strife and -- in tension. The Chamber found quite the

25 opposite, that it was a hierarchical organisation in which members -- in

Page 127

1 which the general authority of Djordjevic meant that he had authority

2 over the departments within his RJB.

3 Similarly with Stevanovic, the Chamber found that he was chief of

4 the police administration. That's at paragraphs 41, 60, 100, 2127, 2175.

5 Again, it found that the police administration was a department within

6 the RJB, at paragraphs 41 and 1936, and therefore functioned under the

7 control of Djordjevic. And that's at paragraphs 40 and 1936.

8 On the other hand, the Chamber found that there was no evidence

9 to support the idea that there was any overlap, and here is where they

10 specifically reject the Defence argument, between the specific authority

11 of another assistant minister and the general authority of Djordjevic as

12 chief of the RJB. That's at paragraph 43.

13 Now, that's what the law says, Your Honours, but this is also

14 consistent with the role that the two men played in the incidents that

15 are relevant to this issue. Starting first with the burials of the

16 bodies. Though Zekovic has a minor part in this operation, it was

17 Djordjevic who was -- who directed it. That's at paragraphs 1972, 1980,

18 2112, 2118, and 2156 of the trial judgement. Now, again, thinking back

19 to what it is that Djordjevic did in this operation, before each load of

20 bodies arrived at the centre [sic], it was Djordjevic who told the

21 personnel there that the truck was coming, that it contained bodies, and

22 where these bodies should be buried. It was Djordjevic who told his

23 subordinates to cover-up the discovery of the bodies at Perucac and in

24 the refrigerated container at Tekija. When Zekovic later assigned

25 drivers to collect bodies from Pristina, that's at paragraphs 1342 and

Page 128

1 1535 [sic] of the judgement, and from Kosovska Mitrovica, at paragraph

2 1355, for burial at the Batajnica centre, he was merely playing his role

3 in an operation that was done under the direction of Djordjevic. That's

4 consistent with his role as head of administration for joint affairs, and

5 it's consistent with the Chamber's finding that this is not the picture

6 of a man whose responsibilities overlapped with those of Djordjevic.

7 And it's the same, turning to subground 9(F), the Chamber

8 reasonably found that it was Djordjevic who recruited the Skorpions, who

9 saw to it they be made a reserve force and attached to the special

10 terrorist police. It was Djordjevic who did all of these things to make

11 sure the Skorpions were part of the MUP and sent to Podujevo. Though the

12 Chamber found the police administration which was headed by Stevanovic

13 would have been responsible for replenishment of the anti-terrorist

14 police forces, that's at paragraph 1936, it also noted that it was

15 Djordjevic who authorised this replenishment, that's at paragraphs 75,

16 1896, and 1936. Again Stevanovic was doing his -- playing his part in an

17 action that was directed and controlled by Djordjevic.

18 And that concludes my answer to Your Honours' question one.

19 Unless you have any other further questions, I'll move on to question

20 three.

21 JUDGE AGIUS: Please proceed. Thank you.

22 MR. WOOD: So question three. As Your Honours requested, I'll

23 read that into the record.

24 "Discuss, in relation to Djordjevic's 13th ground of appeal and

25 with reference to the trial record, whether, for the purpose of

Page 129

1 establishing the crime of deportation and in light of customary

2 international law, a de facto border existed between Kosovo and

3 Montenegro during the indictment period."

4 The short answer, Your Honours, is that the Chamber reasonably

5 concluded based on the facts of this case that the well-established

6 border between Kosovo and Montenegro in 1999 had the characteristics of a

7 de facto border for the purposes of establishing the crime of

8 deportation. Now, the trial record supports this, as I'll explain, and

9 it's also consistent with Your Honours' holding in the Stakic appeal

10 judgement which is the controlling case on this point and which the --

11 which Djordjevic today generally ignores, choosing instead to focus on

12 dissenting opinions from other cases.

13 Now, what's the basis on which the Chamber found that there was a

14 de facto border? Well, it found that Kosovo was a geographically

15 distinct, autonomous province that had previously enjoyed a tradition of

16 autonomy and self-management within Serbia. Now, what did this mean? In

17 the finding of the Chamber this meant -- it included the right of Kosovo

18 Albanians to receive instruction and to address their government in a

19 language -- in their own language. This level of self-management

20 included a Supreme Court, a police force, and a central bank.

21 Secondly, it found that on the other side of the border was

22 Montenegro which was a republic with its own status within the FRY.

23 And third, it found that as at the end of May 1998 an armed

24 conflict existed in Kosovo between the KLA and Serbia and the FRY.

25 The Chamber also noted that the displacement of ethnic Albanians

Page 130

1 from Kosovo to Montenegro would have much the same effect as displacement

2 across a state border. Now, this is consistent also with the way these

3 operations were conducted and shows that the perpetrators themselves even

4 recognised the importance of Kosovo's border. We're talking about two

5 instances here, Your Honour. In Kosovska Mitrovica, one of those

6 instances, Serb forces forced Kosovo Albanians onto 16 or 17 buses of a

7 state transport company and drove them straight to the border with

8 Montenegro. This was an organised displacement that mirrored other

9 organised displacements to other borders with Kosovo. And I refer

10 Your Honours to paragraphs 777 and 1646.

11 At the border they were maltreated, interrogated, and forced to

12 shout "Serbia, Serbia." This is consistent with how Kosovo Albanians

13 were treated at other borders. The perpetrators were pushing the victims

14 across this border and telling them they were not welcome to return.

15 They were deporting them.

16 And for the findings in Pec, I refer Your Honours to

17 paragraphs 732 and 734 and 1642 of the trial judgement. Given these

18 findings, it was reasonable for the Chamber to conclude as a matter of

19 fact that a de facto border existed between Kosovo and Montenegro and

20 that this border shared some of the characteristics of a de jure border.

21 Now, as I said, this is also consistent with Your Honours'

22 approach in Stakic. Now, what does Stakic require? Stakic says that

23 under customary international law, deportation requires the forced

24 displacement across a border. That's at paragraph 300. And it says also

25 that under certain circumstances this can be a de facto border. That's

Page 131

1 at 278 and 300 of the Stakic appeal judgement. It says that the

2 determination must be made on a case-by-case basis in light of the

3 overall elements of deportation under customary international law.

4 That's at paragraphs 278 and 300.

5 Now, though Stakic provides no specific indicia of what

6 constitutes a de facto border, what it plainly doesn't do is limit this

7 definition to areas of control as indicated by or argued by Djordjevic

8 today. Now, applying this understanding to the trial judgement in

9 Stakic, the Chamber found that there was no evidence to support its

10 findings that constantly changing front lines can amount to

11 deportation --

12 JUDGE AGIUS: One moment, to be correct, I don't think that

13 appellant alleged that Stakic referred to areas of control. It was a

14 reference to what Judge Shahabuddeen mentioned in his dissenting opinion.

15 MR. WOOD: Yes, Your Honour. I didn't mean to suggest that

16 Stakic did say that or --

17 JUDGE AGIUS: Okay. But you --

18 MR. WOOD: -- but the Defence suggested that it did.

19 JUDGE AGIUS: All right.

20 MR. WOOD: To be clear, though Stakic did not lay out any indicia

21 for what defines a de facto border, it didn't say that it depends on

22 areas of control.

23 Now, in this case, Your Honours, of course we're not dealing with

24 a constantly changing front line, but a static geographic border around a

25 well-defined territory of Kosovo. Unlike what the Trial Chamber did in

Page 132

1 Stakic, the Trial Chamber here did engage in the fact by fact -- in the

2 case-by-case analysis that's required. Now, this finding is consistent

3 with the values under customary international law that the crime of

4 deportation is meant to protect, as indicated in the Stakic appeal

5 judgement, Your Honour, that is, to protect people from being forcibly

6 displaced and to protect their right to live in their communities.

7 JUDGE ROBINSON: Suppose the appellant is asking us to look at

8 Stakic anew and to see whether that decision should be reviewed, whether

9 there are cogent reasons for departing from it. As I understand it, what

10 counsel was saying is that the relevant criterion under customary

11 international law is not the border, the crossing of a border, but

12 whether the controlling power is the same. And I think he was suggesting

13 that the controlling power in Kosovo was the same as the controlling

14 power in Montenegro. He didn't go as far as I have suggested, but if

15 you're correct that Stakic represents customary international law, then I

16 would imagine that you would really have to be asking this Chamber,

17 following the Aleksovski principle, to look at the matter afresh and to

18 see whether that decision should be -- whether there are cogent reasons

19 for departing from it. Now, what do you say to the stress that he has

20 placed on this matter?

21 MR. WOOD: Well, Your Honours, I don't see in his brief or in his

22 arguments even today any clear and cogent reasons that Your Honours

23 should depart from Stakic. Your Honours, after doing an analysis in

24 Stakic of customary international law, defined what it meant, that is,

25 the de facto border; that is to say, it said that a de facto border can

Page 133

1 be relevant for the purposes of deportation. Now, if Your Honours are

2 seeking to revisit Stakic, I would suggest that you don't have the record

3 before you to do that. Neither party has asked for Stakic to be

4 overturned. The Defence has not or the appellant hasn't put or suggested

5 any clear and cogent reasons to depart from Stakic. Rather, Stakic

6 stands for the proposition that it's a case-by-case analysis in light of

7 customary international law. In this case, the Trial Chamber did exactly

8 as Your Honours required in Stakic which is conduct that case-by-case

9 analysis. It's not a question of whether Stakic is wrong but whether the

10 analysis that this Trial Chamber did in concluding that there was a

11 de facto border was, in fact, a correct one. And in the submission of

12 the Prosecution, the appellant has failed to show that this finding was

13 unreasonable under the specific facts of this case for the specific

14 purpose of determining whether deportation was committed in these two

15 municipalities.

16 And I would, just to conclude, Your Honours, very quickly --

17 JUDGE AGIUS: You still have another 10, 11, 12 minutes.

18 MR. WOOD: Okay. That in this case, regardless of -- regardless

19 of whether you find error in this case -- or let me back up. There's two

20 issues that are important here. The first is: What is the proper

21 labelling of this conduct criminally? And the second is: What effect

22 does it have on the judgement?

23 Now, dealing with the first issue, even if you find that the

24 Trial Chamber erred in fact in concluding that this was a de facto

25 border, you should find that the forcible displacement to Montenegro from

Page 134

1 these two municipalities constituted forcible transfer. This is the

2 approach Your Honours took in the Stakic appeal judgement at

3 paragraph 321. And even Djordjevic recognises at paragraph 98 [Realtime

4 transcript read in error "28"] of his reply brief, and I think he

5 repeated it here today, that these acts would constitute the crime of

6 forcible transfer but for this question of the border between Kosovo and

7 Montenegro. So Your Honours have the power to do that.

8 Secondly, regardless of whether you label the displacements here

9 deportations or forcible transfer, the Prosecution points out that they

10 remain acts of persecution under Djordjevic's conviction for persecutions

11 as a crime against humanity.

12 Now, as Your Honours have held repeatedly for the purposes of

13 persecutions, it's irrelevant whether the underlying act was deportation

14 or whether it was forcible transfer. Either one suffices so long as the

15 act was carried out with a requisite discriminatory intent. And of

16 course, in this case, Your Honours, the findings show that they were.

17 And for the law on that I would refer you to Naletilic and Martinovic

18 appeal judgement paragraph 154.

19 So to conclude question three, the Appeals Chamber should affirm

20 the Trial Chamber 's finding that in this case based on these facts,

21 Kosovo Albanians driven from Kosovska Mitrovica and from Pec were

22 deported. Alternatively, it should find that they were forcibly

23 transferred and it should adjust Djordjevic's sentence in accordance with

24 the Prosecution's appeal.

25 And that concludes my answer to Your Honours' question three.

Page 135

1 Unless you have any further questions.

2 JUDGE AGIUS: No questions.

3 MR. WOOD: I'm just noting the time, Your Honour, and at this

4 point, as I suggested, I would turn the podium over -- the lectern over

5 to my colleague Ms. Verrall. Perhaps given how close we are to the

6 break, it might be best just to break now.

7 JUDGE AGIUS: We could do that of course, but you won't get any

8 extra time. Because, as you know, post-break schedule is conditioned by

9 my need to leave at 3.00 for this meeting. So I suggest you still have a

10 few minutes, you start.

11 MR. WOOD: Thank you, Your Honour.

12 JUDGE AGIUS: Thank you.

13 MS. VERRALL: Good afternoon, Your Honours.

14 JUDGE AGIUS: Good afternoon.

15 MS. VERRALL: I will be addressing numbers two and five of

16 Your Honours' questions, both of which relate to Djordjevic's convictions

17 through aiding and abetting as a mode of liability. Your Honours, I

18 would turn first to question five, namely, why convictions through both

19 JCE and aiding and abetting, based on the same contributions, better

20 reflect the totality of Djordjevic's conduct.

21 JUDGE AGIUS: That's two, not five, no? Oh, no, okay, you're

22 correct. Thank you.

23 MS. VERRALL: Thank you.

24 Your Honours, convicting Djordjevic through both forms of

25 liability concurrently enabled the Trial Chamber to emphasise his high

Page 136

1 level of culpability, pairing the higher mens rea requirement from JCE

2 with the higher actus reus contribution from aiding and abetting. And it

3 also enabled the Trial Chamber to emphasise those aspects of Djordjevic's

4 conduct that had the most direct link to the crimes and provided

5 substantial support to the perpetrators.

6 Your Honours, at this point I would note the Prosecution

7 disagrees with the submission by my learned friend this morning for the

8 Defence that the conducts taken into account for both JCE and aiding and

9 abetting is entirely the same. As we see it, four types of contribution

10 are taken into account for JCE and those are, very briefly, Djordjevic's

11 role in planning and co-ordinating MUP operations, his role in deploying

12 the Skorpions and other volunteer units, the concealment of bodies, and

13 then, fourthly, his failure to prevent and punish crimes. But when one

14 looks at the findings on aiding and abetting, the Chamber only relies on

15 the final three of those. And in our submission, Your Honour, that is

16 important because it shows the Trial Chamber adopted this approach

17 because it wanted to place an emphasis on a particular part of

18 Djordjevic's conduct. And, Your Honours, this approach is consistent

19 with the Trial Chamber's view of Djordjevic's high level of culpability

20 and his active role in facilitating crimes. In the Chamber's finding,

21 and I quote, "no other member of the joint criminal enterprise made a

22 more crucial contribution to the achievement of its objective." And I

23 would refer Your Honours to paragraph 2211 of the trial judgement.

24 Your Honours, contrary to Djordjevic's submissions this morning

25 that convicting through concurrent modes somehow violates his right to a

Page 137

1 clear articulation of his criminal responsibility, the Trial Chamber has

2 in fact very clearly and transparently set out his criminal

3 responsibility in a precise manner. There is nothing logically

4 inconsistent about convicting for these two modes of responsibility

5 concurrently. We acknowledge they are distinct modes but they are not

6 mutually exclusively or logically incompatible, and the fact that they

7 cover some of the same conduct does not alter the issue of whether

8 concurrent modes are permissible.

9 Ultimately, Your Honours, this was a matter of discretion for the

10 Trial Chamber. We acknowledge it did not need to adopt this approach,

11 but it convicted through both modes in the interests of clarity and

12 completeness. And Djordjevic can point to no prejudice arising from this

13 approach.

14 Your Honours, I wish to touch very briefly on the jurisprudence

15 that enables convictions under concurrent modes under Article 7(1) of the

16 Statute. Now, in convicting Djordjevic through these concurrent modes,

17 the Trial Chamber relied on three appellate cases which my learned friend

18 has mentioned this morning, Ndindabahizi, Kamuhanda, and Nahimana, and

19 all of these cases recognise that an accused can be convicted on the

20 basis of concurrent modes of liability.

21 Your Honours, I wish to highlight the Ndindabahizi appeal

22 judgement. It confirms that it is possible to convict based on more than

23 one mode even when, as in the present case, the conduct that forms the

24 basis of those modes partially overlaps. Now, that case, Your Honours,

25 dealt with convictions through the concurrent modes of commission, aiding

Page 138

1 and abetting, and instigation. And specifically, the words of

2 encouragement that formed part of the appellate Ndindabahizi's conviction

3 for commission was exactly the same conduct that was taken into account

4 for aiding and abetting and instigation. And the Appeals Chamber found

5 no error in that approach because it accepted that the Trial Chamber was

6 seeking to provide a further characterisation of the accused's conduct.

7 THE INTERPRETER: Interpreter's note: Kindly slow down, please.

8 MS. VERRALL: Thank you. And I would refer Your Honours to

9 paragraphs 122 and 123 of the appeal judgement.

10 Your Honours, I plan to break in just one minute but if I can

11 perhaps just conclude on the Ndindabahizi appeals judgement. In our

12 submission, that case is also important not only because it deals with

13 overlapping conduct but because it is a case of commission. And my

14 learned friend this morning has placed quite some emphasis on the

15 apparent incompatibility in this case between convicting through JCE as a

16 primary mode and aiding and abetting as a secondary or accomplice

17 liability. We simply note that in the Ndindabahizi appeals judgement,

18 that seemed to be acceptable in the eyes of the Appeals Chamber.

19 And perhaps it is a convenient time to break, Your Honours.

20 JUDGE AGIUS: Thank you. We will reconvene at 2.00. Thank you.

21 --- Luncheon recess taken at 12.40 p.m.

22 --- On resuming at 2.00 p.m.

23 JUDGE AGIUS: So good afternoon to everyone.

24 We'll continue, Madam. We will stop a little bit before 3.00 for

25 the meeting that I have and then we continue after that hour break.

Page 139

1 Thank you.

2 MS. VERRALL: Thank you, Your Honours.

3 To continue with my response to question five on concurrent

4 convictions, Your Honours, just before the break I had finished outlining

5 why the Ndindabahizi appeals judgement is an illustrative case in this

6 instance. In the interests of time, I don't propose to go into the

7 Kamuhanda and Nahimana judgements but note that those cases also further

8 support the proposition that multiple modes of liability are permissible.

9 But, Your Honours, I do wish to address the Bench on the separate opinion

10 of Judge Schomburg in Kamuhanda. And although the Defence didn't raise

11 that this morning, I want to address it because it really goes to the

12 heart of some of the issues that have been raised by the Defence.

13 Your Honours, if one looks at the separate opinion of Judge

14 Schomburg in Kamuhanda and particularly at paragraph 389, it seems that

15 his position was the view that an accused should not be punished twice

16 for the same conduct under two heads of liability, and in our respectful

17 submission, this concern is based on a misplaced premise. In convicting

18 through more than one mode of liability, the accused is still only

19 convicted once for the crime in question.

20 Your Honours, I would pause at this moment to also address the

21 Akayesu trial judgement which the Defence raised this morning, and in

22 particular, they pointed to paragraph 468 where the Trial Chamber in that

23 case indicated it was inappropriate to convict an accused of two offences

24 when one is accomplice liability and the other is principal liability.

25 Your Honour, again --

Page 140

1 JUDGE ROBINSON: Just a minute. Go back to the point that you

2 made in relation to Judge Schomburg. You have sought to correct

3 Judge Schomburg's approach by saying that in convicting on more than one

4 mode of liability, the accused is still only convicted once for the crime

5 in question. But the question of punishment might be different. How is

6 that reflected in sentence?

7 MS. VERRALL: Your Honour, in our submission, there is no

8 prejudice in this approach in convicting through two concurrent modes

9 because if we look at the present case, it is clear that the principle

10 that guided the Trial Chamber was the totality of Djordjevic's conduct.

11 We can see in the disposition section of the judgement that he is, in

12 fact, convicted only once for each crime in question. And then the

13 Trial Chamber clearly sets out at paragraph 2214 of the judgement, and

14 I'll quote:

15 "In the view of the Chamber, in the circumstances of this case,

16 the sentence appropriate for the leading and grave role of the Accused in

17 the joint criminal enterprise and in aiding and abetting the offences

18 established, fully and adequately reflect the totality of the criminality

19 of the Accused which warrants punishment. It will determine the sentence

20 accordingly."

21 In summary, Your Honours, we consider that there is no prejudice

22 in this approach because at the end of the day, the Trial Chamber looked

23 at the totality of Djordjevic's conduct and it sentenced him on that

24 basis.

25 Does that answer Your Honour's question?

Page 141

1 JUDGE ROBINSON: Yes, I'm happy with it. I was just trying to

2 put in a context an approach that I thought was fairer to what

3 Judge Schomburg was saying.

4 MS. VERRALL: Thank you, Your Honour.

5 To return very briefly to the point I was making earlier, and

6 that is just to clarify the Akayesu trial judgement, and again, the

7 comments made in that case were in relation to cumulative convictions,

8 and the example given by the Trial Chamber was that it would be

9 inappropriate to convict for both genocide and complicity in genocide.

10 And we acknowledge, Your Honours, that the concerns in terms of

11 cumulative convictions are quite different and perhaps there may be more

12 concern of double punishment when it comes to cumulative convictions.

13 But here, we are concerned squarely with convicting through concurrent

14 modes.

15 To conclude on this point, Your Honours, imposing convictions

16 through concurrent modes was a matter for the Trial Chamber's discretion.

17 Djordjevic was only convicted once under Article 7(1) for each crime for

18 which he is guilty and he was appropriately sentenced based on the

19 totality of his conduct. Your Honours, there is no prejudice in this

20 approach. Accordingly, we would ask the Appeals Chamber to dismiss

21 Djordjevic's 18th ground of appeal as it relates to convictions through

22 concurrent modes of responsibility.

23 Your Honours, I now turn to question two which also relates to

24 Djordjevic's responsibility for aiding and abetting crimes. Your Honours

25 have asked us to discuss, first, the implications of the Trial Chamber

Page 142

1 not making explicit findings on substantial contribution in relation to

2 the crime of forcible transfer. And second, the implications of the

3 Trial Chamber not making explicit findings on specific direction for

4 aiding and abetting generally.

5 And, Your Honours, I will answer the two parts of this question

6 in turn.

7 First, turning to the lack of a finding in relation to the

8 requirement of substantial effect for aiding and abetting the crime of

9 forcible transfer. To summarise our position, Your Honours, while the

10 Trial Chamber omitted to make this specific finding, this omission has no

11 impact on the conviction. In considering aiding and abetting liability,

12 the Trial Chamber had previously set out the correct elements, including

13 the requirement of substantial effect, and this can be found at

14 paragraph 1874.

15 The two critical paragraphs for the purposes of this question,

16 Your Honours, are, as the Defence have pointed out this morning,

17 paragraphs 2163 and 2164. I don't propose to read through those,

18 Your Honours, but when those two critical paragraphs are read side by

19 side, it is evident that the Trial Chamber simply omitted to include the

20 words "forcible transfer" when reaching its conclusions on substantial

21 effect. As I've mentioned, it was mindful of the correct standard to be

22 applied. It applied it with respect to the other remaining crimes and,

23 indeed, it intended to convict Djordjevic for aiding and abetting

24 forcible transfers.

25 This omission, to the extent that it could be called an error,

Page 143

1 does not have any impact on Djordjevic's convictions for forcible

2 transfer through aiding and abetting. Your Honours, there are sufficient

3 findings within the judgement to fulfil the substantial effect

4 requirement. And it is within the scope of the Appeals Chamber's powers

5 to uphold this conviction based on those remaining findings. And in this

6 respect I would refer Your Honours to the recent appeal judgement in

7 Lukic and Lukic, paragraph 437, where the Appeals Chamber upheld a

8 conviction for aiding and abetting where the Trial Chamber had similarly

9 omitted to make a specific finding on substantial effect.

10 Your Honours, in the present case, the starting point is the

11 finding of substantial effect in relation to the other proven crimes.

12 The Trial Chamber was satisfied that Djordjevic's conduct had a

13 substantial effect on the crimes of murder, persecutions, and

14 deportation. Now, in particular, that conduct was comprised of his

15 failure to investigate or punish crimes committed by his subordinates;

16 his leading role in efforts to actively conceal crimes including through

17 the transportation and mass burial of bodies; and his personal role in

18 deploying volunteers and paramilitary units into Kosovo.

19 Your Honours, to understand how these contributions had a

20 substantial effect on the crimes, we need to look at the context in which

21 the crimes occurred. These crimes occurred as part of a widespread

22 campaign of terror and extreme violence that caused Kosovo Albanians to

23 flee from their homes. Djordjevic's actions directly facilitated and

24 perpetuated this campaign, and thus his actions had a substantial effect

25 on the crimes that occurred as a result of it. In particular,

Page 144

1 Your Honours, to the extent that his actions had a substantial effect on

2 the crime of deportation, they must necessarily have the same substantial

3 effect on the crime of forcible transfer, because it was the same

4 campaign that forced Kosovo Albanians from their homes and villages in

5 both instances. The only difference between these crimes was whether or

6 not there was proof that the victims crossed a border. Djordjevic's

7 contributions and the effects that they had on the crimes in both

8 instances are the same.

9 To conclude, Your Honours, the Trial Chamber simply omitted to

10 enter a finding of substantial effect in relation to aiding and abetting

11 forcible transfer, but this has no impact on the verdict. When

12 Djordjevic's contributions are understood as impacting on the entire

13 campaign of terror and violence, a reasonable trier of fact would be

14 entitled to find that his actions had a substantial effect on all of the

15 crimes that were part and parcel of that campaign. Your Honours, the

16 findings in the trial judgement are sufficient to sustain a finding of

17 substantial effect for forcible transfer, equally alongside the existing

18 findings for deportation, murders, and persecutions.

19 Your Honours, I will now move to address the second part of the

20 question, namely, the implications of the Chamber's failure to make

21 explicit findings in relation to specific direction for aiding and

22 abetting. Your Honours, before continuing, I note that the issue of

23 specific direction is currently before the Appeals Chamber in the

24 Sainovic proceedings in relation to the appellant Lazarevic. In the

25 appeals hearing in March of this year, the Prosecution set out why it

Page 145

1 considers there are cogent reasons to depart from the appeals judgement

2 in Perisic, which recently found that specific direction is an element of

3 aiding and abetting.

4 Your Honours, given that aiding and abetting is not such a

5 central issue in the present case, I do not propose to reiterate the

6 Prosecution's stance on cogent reasons to depart from Perisic in full

7 here today. However, if Your Honours would benefit from hearing those

8 arguments, we would be happy to file supplemental submissions on the

9 issue, giving both parties the opportunity to present their views in

10 full. But if I may briefly summarise our position for the record.

11 The Prosecution's stance on why the Perisic appeal judgement is

12 not good law is based on four grounds. Firstly, the specific direction

13 requirement articulated in the Perisic appeals judgement has no basis in

14 customary international law. Secondly, it is inconsistent with the prior

15 jurisprudence of this Tribunal. Third, it imposes a vague and unworkable

16 legal standard. And fourth, it ultimately undermines the principles of

17 IHL through creating an accountability gap.

18 Your Honours, without conceding our position on cogent reasons to

19 depart from the appeals judgement in Perisic, if this appeals judgement

20 is to remain the authoritative law on aiding and abetting, and if that

21 reasoning is applied to the present case, then the Trial Chamber's

22 failure to make explicit findings on specific direction does not

23 undermine the verdict.

24 The Trial Chamber was not required to enter explicit findings on

25 specific direction. This is because the Perisic appeals judgement only

Page 146

1 requires explicit findings to be entered with respect to remote aiders

2 and abettors and that is not the case with Djordjevic. There is,

3 therefore, no error in the Trial Chamber's approach.

4 The Perisic appeals judgement holds that in the case of those who

5 are proximate to the crimes, specific direction can be demonstrated

6 implicitly through a discussion of the other elements of aiding and

7 abetting, such as the accused's substantial contribution to the crime.

8 In such cases, the culpable link which is denoted by the term "specific

9 direction" will be self-evident. And I refer Your Honours to

10 paragraphs 37 to 39 of the Perisic appeal judgement.

11 JUDGE AGIUS: One question. In other words, do I understand you

12 well that, in your opinion, what was stated by the Defence, namely, that

13 at the relevant time Djordjevic was in Belgrade and not in Kosovo, has no

14 relevance or importance for your argument?

15 MS. VERRALL: Your Honours, I propose to go through now a number

16 of reasons why we consider Perisic [sic] is not a remote aider and

17 abettor and he is a proximate one. I simply note, however, that

18 geographical remoteness is only one consideration that the Perisic

19 Appeals Chamber noted. And in Perisic, the Appeals Chamber found that

20 specific direction need not be considered explicitly because Perisic

21 was -- sorry, needed to be considered explicitly because Perisic was

22 remote. And in doing so, it relied on these factual indicators which can

23 be found at paragraph 42 of the Perisic appeal judgement. And in that

24 case, the VRS, the army which perpetrated the relevant crimes, were

25 independent of the VJ, the army in which Perisic held his position. The

Page 147

1 two armies were based in separate geographical regions, indeed separate

2 countries. The Trial Chamber also did not refer to any evidence that

3 Perisic was physically present when criminal acts were planned or

4 committed.

5 Your Honours, in contrast, Djordjevic simply does not fall into

6 the category of a remote aider and abettor. He had de jure powers and

7 exercised effective control over the police in Kosovo, trial judgement

8 paragraph 2154. Indeed, the Trial Chamber found that he had the highest

9 responsibility for the principal perpetrators of the campaign, trial

10 judgement paragraphs 2210 to 2211. He had detailed knowledge of events

11 on the ground and he was closely involved in operational decisions in

12 Kosovo, including through the MUP collegium and the Joint Command bodies,

13 trial judgement paragraph 2154. As my colleague Mr. Wood has already

14 discussed, he directly engaged volunteer units and paramilitaries and

15 deployed them to Kosovo. In particular, he personally facilitated the

16 deployment of the notorious paramilitary group, the Skorpions, trial

17 judgement paragraphs 1934 to 1966. He was also intimately connected to

18 the crimes on the ground. In an effort to conceal the killings that

19 occurred as part of this campaign, he gave direct orders for the

20 clandestine transportation and reburial of bodies in mass graves.

21 Your Honours, I would pause to emphasise at this point that the

22 concealment of bodies is not an ex post facto contribution to aiding and

23 abetting. That is not how the Prosecution framed this case and nor is

24 that how the Trial Chamber has dealt with it. Therefore, in our

25 submissions, the submissions made by the Defence this morning outlining

Page 148

1 the need for a prior agreement in cases of ex post facto aiding and

2 abetting are not on point. The concealment operation was a continuing

3 contribution which lasted throughout the campaign. It was a contribution

4 because it allowed the campaign to continue unhindered and unchecked and

5 outside the purview of international observers.

6 Returning to why Djordjevic is proximate to the crimes, he was

7 also present on the ground in Kosovo including when crimes were

8 committed. For instance, he was the most senior MUP official at the

9 Racak operation in mid-January 1999 where not less than 45 Kosovo

10 Albanians were killed. Your Honours, this is not a charged crime but it

11 was reasonably taken into account by the Trial Chamber to note the start

12 date of the JCE, and we submit it is equally relevant to showing

13 Djordjevic's intimate connection to events on the ground in Kosovo and

14 his knowledge of crimes.

15 Your Honours, the same factors that I have just outlined to show

16 why Djordjevic is a proximate aider and abettor also implicitly

17 demonstrate the existence of what the Perisic appeals judgement calls a

18 culpable link between his actions and the crimes, due to his intimate

19 connection to the events on the ground.

20 Your Honours, the Trial Chamber was not required to enter

21 explicit findings on specific direction because Djordjevic is not a

22 remote aider and abettor. There is therefore no error. On the approach

23 set out in the Perisic appeal judgement, the existence of a culpable link

24 is implicit in other findings of the judgement, particularly those that

25 go to his substantial effect on the crimes. For these reasons, we ask

Page 149

1 that the Appeals Chamber uphold Djordjevic's convictions for aiding and

2 abetting.

3 Unless Your Honours have any questions in relation to the aiding

4 and abetting grounds I have discussed, I would yield the floor to my

5 colleague Mr. Wood who would continue with the remainder of our response.

6 JUDGE AGIUS: Okay, Mr. Wood.

7 MR. WOOD: Yes, good afternoon, Your Honours. Before I get into

8 the answer to question four, I have a few corrections to the transcript,

9 and if it's convenient, I could do that now. Transcript line 66 --

10 transcript 66, line 24, it says "Kosovo," it should say "Croatia."

11 Transcript 67, line 11, it should be T 9545, that's a transcript

12 reference. At transcript 70, lines 4 to 5, it occurs to me that I

13 neglected to put into the record the transcript references for the slides

14 that I showed, so at lines 4 and 5 that should be T 10009 to T 10010.

15 And at lines 13 to 16 on transcript page 70, it should be

16 transcript 10006. At transcript 74, line 7, the word "Batajnica" should

17 appear before "centre." And at transcript 80, line 11, it should be 98

18 of the reply brief, not 28. And finally, just noticed at transcript 92,

19 line 16, it should read "Djordjevic," not "Perisic."

20 Now, with that out of the way, I'll turn to the answer to

21 question four.

22 Your Honours, the Trial Chamber did not err in convicting

23 General Djordjevic based on the incidents that you have specified in

24 question four. Each of these incidents falls within the time-period

25 charged in the indictment, within the geographic area charged in the

Page 150

1 indictment, and within the widespread and systematic attack on Kosovo

2 Albanians described in the indictment. Any ambiguity there may have been

3 about the specific incidents noted in question four was cured because the

4 Prosecution provided Djordjevic with timely, clear, and consistent

5 information detailing the factual basis which underpinned the charges

6 against him. This is consistent with Your Honours' holding in the

7 Naletilic/Martinovic appeal judgement at paragraphs 26 and 27.

8 The Prosecution further notes that Djordjevic has failed to show

9 that his ability to prepare his defence was materially impaired by any of

10 the defects he alleges in ground 16. He's raising these objections for

11 the first time here before Your Honours on appeal. He didn't raise a

12 specific objection at trial when the relevant evidence was introduced.

13 This means, Your Honours, that he bears the burden of proving that the

14 defect in the indictment that he alleges materially impaired his ability

15 to prepare his defence. And that's Your Honours' holding in the Simic

16 appeal judgement at paragraph 25. What this means, Your Honours, is that

17 Djordjevic must provide specific information about how his defence was

18 materially impaired by the alleged lack of notice such as indicating, for

19 example, how particular witnesses would have been engaged differently,

20 including the specific questions he would have asked, and establishing

21 precisely how his approach to the case would have differed from the

22 approach which he, in fact, adopted. And that's from the Mrksic appeal

23 judgement at paragraph 144.

24 In this case, Djordjevic has failed to meet this burden. Rather,

25 he merely provides a list of alleged defects in the indictment without

Page 151

1 providing any information about how these defects materially impaired his

2 ability to prepare his defence. And that's in his appeal brief at

3 paragraphs 357 to 360. He did not object when evidence of these

4 incidents was introduced. He cross-examined many of the relevant

5 witnesses. And in the case of the murders at Pusto Selo, he called a

6 witness and put on evidence to rebut evidence of this incident. I'll

7 explain that more -- further in a bit.

8 Now, all of this shows that Djordjevic was put on notice of the

9 Prosecution's case and able to respond to those allegations, consistent

10 with Your Honours' holding at Naletilic paragraph 27.

11 Now, to explain this further, I'll go through each of these

12 incidents in order.

13 Now, starting first with the deportation from Kladernica village

14 between 12 and 15 April, that's in subpart (a) of question four. The

15 displacement from Kladernica was specifically pled at paragraph 72(c) of

16 the indictment. Further specificity about this incident, including that

17 the deportations occurred between 12 and 15 April 1999, was provided in

18 the Prosecution's pre-trial submissions, including its 65 ter witness

19 summary of Sadik Januzi which was filed on the 1st of September, 2008.

20 And that's the same date that all of the 65 ter summaries that I'll be

21 referring to was filed, Your Honour. Further specificity was provided in

22 the Prosecution's motion for the admission of Mr. Januzi's evidence which

23 was filed on the 28th of October, 2008, and of course on Mr. Januzi's

24 written statement which was admitted under Rule 92 quater. And that's as

25 Exhibit P281.

Page 152

1 Turning next to the second part of question 4(a), the deportation

2 from Suva Reka town between 7 and 21 May 1999. Now, this deportation was

3 pleaded in paragraph 72(d) of the indictment. And the Prosecution

4 submits that, contrary to the Defence argument, 72(d)(i) does not limit

5 the time-frame of Suva Reka, that the indictment must be read as a whole

6 so that the time-frame of the crimes that were committed is January to

7 June 1999. Now, further specificity of this incident was provided,

8 including that the deportations occurred between 7 and 21 May 1999 -- was

9 provided in the 65 ter witness summaries for Halit Berisha and

10 Hysni Berisha. Both of these witnesses also testified at trial in

11 April 2009. Both testified about the deportations from Suva Reka.

12 Turning then to subpart (b) of your question four, forcible

13 transfers from the villages of Brocna and Tusilje. Now, Brocna and

14 Tusilje are villages in Srbica municipality. The attack on this

15 municipality which took place within the indictment period is described

16 in paragraph 72(c) of the indictment. As to Brocna, Djordjevic was

17 provided sufficient notice of this incident in the 65 ter summary of

18 Milazim Thaqi, who also testified about this displacement and was

19 subjected to cross-examination on the subject. I refer Your Honours to

20 T 5005. As to Tusilje, the Prosecution notes that the evidence led at

21 trial shows that Tusilje was a collection point for Kosovo Albanians

22 fleeing from the village of Turicevac and that Djordjevic was convicted

23 of deportations from Turicevac. That's at paragraphs 673 [sic] and 1632

24 of the indictment [sic]. Therefore, the Chamber need not have entered a

25 conviction relating to this incident.

Page 153

1 Turning then to the second part of sub(b) which is the forcible

2 transfer from Cuska --

3 JUDGE AGIUS: One moment. Because I see that the transcript is

4 confused about Tusilje. You're referring to paragraph 73 of the

5 indictment, which subparagraph?

6 MR. WOOD: I see that there's a problem. Let me just clarify,

7 Your Honour, that Djordjevic was convicted of the deportations from

8 Turicevac and that's at trial judgement paragraphs 637 to [sic] 1632.

9 JUDGE AGIUS: Oh, I see.

10 MR. WOOD: So my reference was to the trial judgement not to the

11 indictment. So again, the Chamber need not have entered a conviction

12 related to --

13 JUDGE AGIUS: Okay. That clarifies the matter. Thank you.

14 MR. WOOD: Turning then to Cuska, the forcible transfer in Cuska

15 took place within both the geographic and temporal scope of the

16 indictment. It is within Pec municipality and the attack on this

17 municipality is described in paragraph 72(e). Djordjevic was provided

18 further sufficient notice of this incident in the 65 ter summaries of

19 Hazir Berisha and Tahir Kelmendi. Both witnesses also testified about

20 this incident as did another witness, Fred Abrahams. Berisha and

21 Kelmendi were cross-examined on this issue.

22 Turning then to subpart (c), the murder in the village of

23 Mala Krusa. Now, these murders took place in the course of the attack on

24 Mala Krusa described in paragraph 75(c) of the indictment, as noted by

25 the Trial Chamber at paragraph 485 of the trial judgement. The names of

Page 154

1 the three men at issue are included in Schedule C to the indictment,

2 those are Sali Shehu, Demir Rashkaj and Nexhat Shehu.

3 Further, on 16 February 2009 Prosecution witness Lutfi Ramadani

4 testified and gave evidence concerning these murders and was

5 cross-examined on the issue.

6 Turning then to the murders in Podujevo town in subpart (c), the

7 murders of Hamdi Duriqi and Selmon Gashi took place in Podujevo on the

8 same day that at least 14 others were murdered as described in

9 paragraph 75(L) of the indictment. While the indictment did not list

10 Duriqi and Gashi by name in the schedule, this was not a material fact

11 that needed to be pled in the indictment. I refer Your Honours to the

12 Kupreskic appeal judgement paragraph 89, and the Naletilic and Martinovic

13 appeal judgement at paragraph 24.

14 In any event, Your Honours, Djordjevic was provided clear and

15 consistent notice regarding these murders. The 65 ter summaries of

16 Fatos Bogojevci and Saranda Bogojevci indicated that these two witnesses

17 would testify that two men were taken into a shop and two gun-shots were

18 heard. Both witnesses testified and they named the two men to be

19 Hamid Duriqi and Selmon Gashi.

20 Finally, turning to the persecutions committed through murder at

21 Pusto Selo, that's in sub(d) of question four. The massacre at

22 Pusto Selo took place in Orahovac municipality on 31 March 1999, and

23 therefore within both the geographic and temporal scope of the

24 indictment. It was also part of the persecutory campaign described in

25 paragraph 16 and -- to 33 of the indictment. Djordjevic was also

Page 155

1 provided notice of this incident, including its discriminatory nature.

2 In the 65 ter witness list, in summaries of Ali Gjogaj and

3 Beqir Krasniqi. During the trial, Gjogaj and Krasniqi as well as

4 Avdyl Mazreku testified and were cross-examined by the Defence about the

5 crimes in Pusto Selo. The Defence also introduced witnesses and exhibits

6 concerning these crimes. And I refer Your Honours specifically to the

7 testimony of Witness 6D2 on the 3rd of March, 2010, and to Exhibits D225,

8 D226, and D811.

9 To conclude, Your Honours, Djordjevic was provided sufficient

10 notice of each of the incidents noted in question four and he fails in

11 his burden to show that any of the alleged defects to the indictment

12 materially affected his ability to prepare his defence. Now, even if

13 Your Honours do find error here, it should not affect Djordjevic's

14 sentence which, of course, is based on a massive number of crimes

15 committed throughout Kosovo.

16 That concludes my answer to Your Honours' question four. Oh, I'm

17 seeing perhaps a question -- a correction to the transcript again. On

18 page 99, line 6, it should say paragraphs 637, 632, not 637 to 632 --

19 1632, sorry. So I meant to say those two paragraphs separately not as a

20 range which, of course, would be an enormous range, not very helpful.

21 Unless there's questions to -- or questions related to my answer

22 to question four, I'd like to take the opportunity to turn to the --

23 answer the question that --

24 JUDGE AGIUS: Yes, one moment.

25 JUDGE TUZMUKHAMEDOV: Thank you. It is related --

Page 156

1 MR. WOOD: Sorry.

2 JUDGE TUZMUKHAMEDOV: I mean, I have a question that is related.

3 MR. WOOD: Yes.

4 JUDGE TUZMUKHAMEDOV: The appellant claims in his brief that he

5 did not receive sufficient notice with regard to events that took place

6 in Dusanovo as the indictment merely accuses Mr. Djordjevic of acts of

7 deportation committed, and then I quote, "in the city of Prizren."

8 However, if you look at the trial judgement, at paragraph 565 it

9 describes Dusanovo as a suburb of Prizren, and then in 1626, Dusanovo is

10 described as neighbourhood of Prizren. And then further the Prosecution

11 exhibit 86 -- 876 describes Dusanovo as the commune of Prizren.

12 What is the correct interpretation to be given to the location of

13 Dusanovo in relation to Prizren? Do you see any conflict between those

14 geographical -- between those geographical descriptions, that is, suburb,

15 neighbourhood, commune? And if you do, how do you reconcile that

16 conflict? And if you do not see any conflict, please explain. Thank

17 you.

18 MR. WOOD: Well, Your Honour, Tusanovo refers to a suburb of

19 Prizren -- sorry, Dusanovo refers to a suburb of Prizren. Without having

20 before me the specific testimony and 65 ter summaries and so on, I would

21 say that this does provide sufficient notice to the accused, given that

22 it is in close proximity to the town of Prizren and therefore is not

23 necessarily material fact that has to be pled in the indictment. The

24 appellant knew the crime to which he had to answer, he knew that they

25 related to Prizren. The fact that they may have occurred in a town close

Page 157

1 to Prizren did put him on sufficient notice that that is the crime to

2 which he had to answer.

3 JUDGE TUZMUKHAMEDOV: And if I may, how would you describe the

4 suburb?

5 MR. WOOD: Yes, Your Honour, it's within Prizren, so in the

6 Prosecution's view, Dusanovo, that would include the geographic community

7 or suburb of Dusanovo, that it is within Prizren. And that would provide

8 him with sufficient notice.

9 JUDGE TUZMUKHAMEDOV: Okay. So in that sense, both the trial

10 judgement and the exhibit to which I referred where three different terms

11 are used to describe Dusanovo, they should be considered to be equal and

12 the term "the city of Prizren" should embrace them all?

13 MR. WOOD: Yes, within Prizren town, Your Honour.

14 JUDGE TUZMUKHAMEDOV: Thank you.

15 MR. WOOD: Finally, I wanted to take the opportunity to address

16 Your Honours' question to the Defence, to the appellant, regarding events

17 from 1998. And now Your Honours this morning asked: Can you direct

18 me to anywhere in the trial judgement where the Chamber found it proven

19 beyond a reasonable doubt that a JCE involving General Djordjevic existed

20 prior to January 1999? And if the answer to the first question is

21 negative, then can you direct me to any instances in the trial judgement

22 where the Trial Chamber imposed criminal liability on Djordjevic stemming

23 from events occurring prior to mid-January 1999?

24 The answer to the first question, Your Honours, is no. All of

25 the charged crimes fall within the indictment. And the Trial Chamber

Page 158

1 made specific findings as to each of the crimes, that they formed part of

2 the joint criminal enterprise. There were no crimes for which Djordjevic

3 was found responsible that did not fall within the JCE period.

4 And in answer to the second part of the question then, contrary

5 to the argument of the appellant, nowhere in the judgement, neither on

6 pages 733 to 781 or elsewhere, does the Chamber impose criminal

7 responsibility on Djordjevic for any contributions that occurred before

8 mid-January of 1999. Rather, the Chamber relied on 1998 conduct and

9 knowledge only to reasonably infer that General Djordjevic shared the

10 intent of the JCE in 1999. And in that vein, Your Honours, the

11 Prosecution agrees with counsel's statement that "knowledge from 1998

12 could be used, for example, as a means to infer a similar knowledge or

13 intent in the later period." That's at transcript page 61 of today's

14 transcript.

15 Now, this is also consistent with the jurisprudence of this

16 Tribunal, as Your Honours held in the Krajisnik appeal judgement,

17 paragraphs 200 to 204, and at paragraph 492, "the state of mind and

18 conduct of an accused prior to the existence of the common purpose can be

19 taken into consideration as evidence of the accused's JCE mens rea."

20 And that is precisely what the Chamber did in this case. I refer

21 Your Honours to paragraphs 2155 to 2158, which specifically list his

22 contributions. All of these contributions occur in 1999.

23 To conclude, Your Honours, Djordjevic's contributions --

24 convictions for persecutions, murder, deportation, forcible transfer lie

25 on solid legal and factual foundations. These findings show that

Page 159

1 Djordjevic was one of the most crucial members of a JCE that unleashed

2 havoc in Kosovo in 1999, inflicting untold suffering on hundreds of

3 thousands Kosovo Albanians who were at the receiving end of the JCE's

4 campaign of terror and extreme violence. In his appeal, Djordjevic has

5 failed to prove that the Chamber's findings are those that no reasonable

6 Chamber could make. His appeal should be dismissed, his conviction

7 upheld, and his sentence increased as requested by the Prosecution in our

8 own appeal.

9 JUDGE AGIUS: Mr. Wood, unless you have got other things to say.

10 MR. WOOD: No, Your Honour.

11 JUDGE AGIUS: I noticed earlier on this morning that when you

12 were dealing with the 13th ground of appeal, you suggested towards the

13 end of your submissions on that point that in the event that we consider

14 the Djordjevic ground of appeal in relation to deportation favourably,

15 then we should proceed to enter a conviction for forcible transfer.

16 MR. WOOD: Yes, Your Honour.

17 JUDGE AGIUS: I understood you at the time either that you were

18 inferring that this flows naturally from the indictment itself or that

19 you were suggesting it as a principle of law that forcible transfer maybe

20 is a minor crime which is subsumed in the whole concept of deportation

21 and forcible movement of people anyway.

22 My question to you is the following: How do you consider a

23 conviction for forcible transfer in relation to the movements to

24 Montenegro as being covered by the indictment? And I am particularly

25 raising this because if you read paragraph 73 of the indictment, with

Page 160

1 respect to those Kosovo Albanians who were internally displaced, in the

2 words of the indictment itself, within the territory of Kosovo, the

3 Prosecutor re-alleges and incorporates by a reference paragraph 16 to 33,

4 60 to 64, and 71 and 72 of the indictment. Do you really consider that

5 the indictment also covers forcible transfers to outside the territory of

6 Kosovo?

7 MR. WOOD: No, Your Honour. First of all, let me --

8 JUDGE AGIUS: I mean, my question is very simple. How do you

9 argue that short of a finding that there was deportation, we should

10 proceed to convicting for forcible transfer if 73 restricts forcible

11 transfer to displaced within the territory of Kosovo?

12 MR. WOOD: First of all, let me explain, Your Honours, that I

13 hope I didn't give the wrong impression, that the Prosecution considers

14 forcible transfer to be a minor crime that is subsumed within

15 deportation. Of course it's a crime of equal gravity under Article 5(i)

16 of the Statute, and if I gave that impression, then I would want to

17 correct that. Secondly, I would point out that this particular aspect

18 has not been challenged by the Defence. They don't challenge this aspect

19 of the indictment. But lastly, Your Honour --

20 JUDGE AGIUS: Sorry, I didn't understand you. Which aspect?

21 Because the Defence --

22 MR. WOOD: The indictment notice issue.

23 JUDGE AGIUS: No, no, no -- okay. But that's different. Because

24 I never understood the Defence to say that they agree that if there is no

25 deportation, there could be forcible transfer. They never accepted that

Page 161

1 or conceded that.

2 MR. WOOD: Well, in paragraph 98 of their reply, Your Honour,

3 they did say, and they repeated it here again today, that if it's

4 anything, it's -- and I'm just -- I'm turning to that page. If it's

5 anything, it's forcible transfer, not deportation. And I read the forced

6 displacement of individuals within a federal state --

7 JUDGE AGIUS: But not charged?

8 MR. WOOD: Well, again that's not something that's challenged.

9 But to get to the heart of it, Your Honours, the point is that the only

10 difference really between deportation and forcible transfer is the border

11 that's crossed. The Prosecution believes that the indictment has

12 charged -- has put him on sufficient notice that he's responsible for

13 answering for the displacements that occurred in these two municipalities

14 so that the displacement into Montenegro is such a forcible displacement

15 and it can be considered either a forcible transfer or a deportation.

16 And the difference is the question of how Your Honours or how the

17 Trial Chamber has read the indictment -- or, I'm sorry, has analysed the

18 facts. And of course, as the Prosecution has said, they analysed the

19 facts and found that it was a de facto border. Again, he knew the case

20 to which he had to answer, which was the displacements from

21 Kosovska Mitrovica into Pec, so that the displacement across the border

22 is either forcible transfer or deportation. In any event, it's a

23 displacement for which he had to answer.

24 JUDGE AGIUS: Okay. Thank you.

25 Perhaps you would also like to deal with this later on when we

Page 162

1 resume.

2 We will have a break now. Now, with this understanding, the

3 meeting I have starts at 3.00. I'm told that it's not expected to take

4 as long as one hour, anywhere near that but not as long as one hour. I

5 would suggest that from 20 to 4.00, 20 to 4.00, you are all on stand-by.

6 In case I finish earlier, I will send out messages so that we reconvene

7 as soon as we can so that we will finish earlier than the expected half

8 past 6.00. All right. Thank you very much.

9 --- Recess taken at 2.52 p.m.

10 --- On resuming at 4.01 p.m.

11 JUDGE AGIUS: Ms. O'Leary, now we come to the reply of the

12 Defence team, 30 minutes. Thank you.

13 MS. O'LEARY: Thank you again, Your Honour.

14 I'm just going to make a few quick points, only not too quick, on

15 concurrent and cumulative convictions and then I'll hand the floor over

16 to Mr. Hopkins.

17 The Prosecution today has incorrectly stated that

18 Vlastimir Djordjevic was convicted only once in the disposition under

19 each count. On this I will note that you should clearly look at

20 paragraph 2230 of the disposition. The word "and" is critical there.

21 For each count he's found guilty for participation in a joint criminal

22 enterprise and for having aided and abetted the crime of the count.

23 Again, the Prosecution has not shown what specific factors are reflected

24 in the dual conviction that better reflect his conduct. Indeed, it's

25 only a repetition that the two convictions were needed to show his high

Page 163

1 level of culpability, they've said. My learned colleague has stated that

2 the principle that guided the Trial Chamber was one of totality of

3 conduct as asserted in their response. But we would ask why then not

4 simply make his contribution to the JCE a substantial contribution in the

5 finding at paragraph 2158? As the Prosecutor has pointed out, four types

6 of contribution were taken into account for the JCE and three of the

7 exact same contributing factors made up his aiding and abetting

8 contribution, and that's at today's transcript of T 82.

9 The one that's not considered in aiding and abetting,

10 Your Honours, is one referred to as planning and co-ordination of MUP

11 operations. On this point, Your Honours, we note, one, that Djordjevic

12 was not convicted of planning nor of findings made that he had planned;

13 and two, his role in the MUP is fully reflected in the findings of

14 additional aggravating factors. Since all four were a part of the found

15 JCE contribution, the Trial Chamber, we would say, was free to highlight

16 his culpability under JCE, as the standard set in Brdjanin appeals

17 judgement at paragraph 430, is a significant contribution as the lowest

18 threshold.

19 Today the Prosecutor has focused on Ndindabahizi but we have

20 already addressed that in our brief and in our reply specifically. The

21 citations provided by the Prosecution in Ndindabahizi relate to a

22 proprio motu ground taken by the Appeals Chamber and this was to address

23 convictions of commission and aiding and abetting in the alternative. As

24 in the Gatete appeals judgement, in Ndindabahizi they simply referred to

25 the various modes of liability. They did not separately convict. And

Page 164

1 what is notable in these paragraphs is the quote that comes from the

2 Trial Chamber -- the appeals judgement that states:

3 "... it is for a Trial Chamber to identify unambiguously the

4 mode(s) of liability for which an accused is convicted and the relation

5 between them."

6 And that's at paragraph 123 of Ndindabahizi.

7 We submit that this was not done in the Djordjevic trial

8 judgement. What's more, Your Honours, we would point out that in that

9 same appeal judgement at paragraph 122 it clearly says, and I quote:

10 "... alternative convictions for several modes of liability are,

11 in general, incompatible with the principle that a judgement has to

12 express unambiguously the scope of the convicted person's criminal

13 responsibility."

14 Judge Guney will recognise this as he agreed with this statement

15 in his partial dissent at paragraph 2. This goes to the core of our

16 submissions, Your Honours, that convictions for JCE and aiding and

17 abetting along with that alternative finding of a JCE III liability are

18 ambiguous. On the point of commission and other forms of liability, I

19 would point further to Judge Guney's dissent on this point, in particular

20 paragraph 4. The Prosecution states that this is a matter of discretion

21 for the Trial Chamber, and that's at transcript 83, but Your Honours, we

22 would submit that this is outside the limits of discretion to convict on

23 these two modes of liability. While the convictions are unambiguous, the

24 relation between them is not. They are based on the exact same findings

25 and this, we submit, is an abuse of discretion.

Page 165

1 The Prosecution also stated today that: We've shown no

2 prejudice. And that's at transcript 83 and 86. But in fact,

3 Your Honours, we have pointed to prejudice in our brief, again in our

4 reply, and again today. Today I specifically pointed out three errors

5 and I did not have time to fully enunciate the Kunarac et al. appeals

6 judgement statement in regarding that second point of prejudice, but I

7 did point to it at paragraph 169 of the Kunarac appeals judgement and

8 I'll take this opportunity now to quickly read it to you. That:

9 "At the very least, such persons suffer the stigma inherent in

10 being convicted of an additional crime for the same conduct." And "in a

11 more tangible sense, there may be such consequences as losing eligibility

12 for early release under the law of the state enforcing the sentence."

13 Your Honours, it has been stated time and again that cumulative

14 and concurrent convictions should not be made without great care so as to

15 not double punish. And very recently, the honourable President has

16 stated in his dissent in the Gatete appeal judgement, "it is vital to

17 recall," and I am quoting, "as was done in the Popovic et al. case, that

18 the fundamental principle animating the concern regarding multiple

19 convictions for the same act is one of fairness to the accused and that

20 there is a real risk of prejudice which lies in allowing cumulative

21 convictions," and that's in the honourable Judge Agius's dissent in

22 paragraph 6 of the Gatete appeals judgement.

23 Here, Your Honours, the risk of prejudice is realised with the

24 higher sentence to Vlastimir Djordjevic. And I'll hand the floor over if

25 there are no questions.

Page 166

1 JUDGE AGIUS: Thank you, Ms. O'Leary.

2 Mr. Hopkins -- yes, Judge Guney would like to put a question.

3 JUDGE GUNEY: Well, Djordjevic submit that duplicate conviction

4 under Article 7(1) for the same crime are impermissible and logically

5 incompatible, so I would like then you make -- you elaborate on this

6 part. The second little question is: The impact, if any, of the

7 reversal of conviction based on aiding and abetting and of Djordjevic's

8 contention that his sentence was increased to the double conviction will

9 be left for consideration at later stage or should we consider it right

10 now? When I say "later stage," it may be other example sentencing stage,

11 for example.

12 MS. O'LEARY: Thank you for your questions, Your Honours. In

13 submitting that they're logically incompatible, it has to do with the

14 nature of the modes of liability, one being a principal and one being an

15 accomplice. And we carefully outlined the distinction in our brief that

16 the jurisprudence has tried to divide joint criminal enterprise from

17 aiding and abetting for the past almost two decades, and specifically

18 point to what actions and what mens rea and actus reus are required for

19 each specific mode of liability, JCE I, JCE III, and aiding and abetting.

20 And we would submit that if you have a finding for all three of them, you

21 are asking the person to have three separate mens reas in his own same

22 mind for the same conduct, which is logically incompatible. You can't

23 aid and abet your own crimes.

24 At the same time, the impact of reversal for aiding and abetting

25 or if either one of these would fall away is simply that his sentence

Page 167

1 must be reduced. It would be a fallacy for us to think that, at the end

2 of the trial judgement, the Chamber did not look at how many convictions

3 there were and on how many counts and take this into consideration in the

4 totality of factoring his sentence. And we would submit that his

5 sentence was raised based on the fact that there were two convictions for

6 each count and that three of the counts were impermissibly cumulative to

7 the persecutions, Count 5.

8 And have I answered your question fully, Your Honour? Thank you.

9 Barring any further, I'll hand over, Your Honours. Thank you so

10 much.

11 JUDGE GUNEY: [Interpretation] Thank you.

12 MR. HOPKINS: Mr. President, Your Honours, I will address you on

13 a number of points in the order that I noted them as the Prosecution was

14 speaking, rather than the order I necessarily addressed them when I rose

15 first thing this morning.

16 Firstly, the standard on appeal. The standard on appeal is

17 whether we can point to other reasonable inferences that existed. It is

18 not, as the Prosecution repeatedly suggested, whether it was a reasonable

19 conclusion that Djordjevic shared the intent of the JCE. That's not the

20 test. Rather, our understanding of the law is that what we need to

21 persuade you of is whether other reasonable inferences existed; and if

22 they did, you should intervene. Now, perhaps the relevant test can be

23 put this way: No reasonable Trial Chamber would convict when other

24 reasonable inferences consistent with innocence existed. Now, that was

25 the Appeals Chamber's approach in the Bizimungu and Mugenzi appeal

Page 168

1 recently and also in the Gotovina appeal recently. So in Mugenzi, did

2 other reasonable inferences exist about his involvement in the decision

3 to remove the Préfet of Butare and his subsequent attendance at the

4 installation ceremony in Butare when President Sindikubwabo made his

5 speech? Yes, they did, hence an acquittal.

6 In Gotovina, did other reasonable inferences exist about the

7 intent behind attacks on towns like Knin and the pattern of crimes? Yes.

8 So the undoubted pattern that there was in that case could not be tied to

9 the leadership. An acquittal followed on appeal.

10 And that was a case where the leader in question had actually

11 said that he could destroy Knin if he wanted to. See paragraphs 93 and

12 94 of the judgement. Djordjevic on appeal just asks for the same

13 treatment. Now, even if you are of the view that the inferences that the

14 Trial Chamber drew can survive appellate review, we say that the level of

15 Djordjevic's responsibility for events in Kosovo is still demonstrably

16 overstated, his sentence is extreme.

17 And moving on to the next point I've noted about Djordjevic's

18 role in 1998 versus his role in 1999. Now, when you review the judgement

19 as a whole, it is, in our submission, striking how different Djordjevic's

20 role is in relation to the indictment crimes versus the earlier role.

21 And when you look at the judgement as a whole, it's striking the extent

22 to which Djordjevic's liability is based on events that predated the JCE.

23 Now, it's Djordjevic's more limited role in 1999 that led the

24 Trial Chamber in this case, in our submission, to overreach, to hark back

25 to events in the summer of 1998 or the October Agreements, and so on, or

Page 169

1 even Racak in early 1999, which is not clear, to us anyway, whether that

2 pre-dates or post-dates when the JCE was found to have come into

3 existence.

4 So, in fact, what we say one sees as an accumulation of

5 indicators that, for whatever reason, Djordjevic's role diminished as

6 1998 wore on and into 1999. Now, we say that this is an approach that no

7 reasonable Trial Chamber would take to ignore that obvious change,

8 particularly when - and this is an important point - when the parties

9 were explicitly told in the trial to focus on the period of the

10 indictment crimes for March 1999 onwards.

11 Now, we heard during the course of the Prosecutor's response this

12 morning a righteous recitation of aspects of the crimes that were

13 committed in Kosovo, for example, racist remarks that were uttered by

14 perpetrators on the ground, like "Serbia, Serbia," as they crossed the

15 boundary, internal boundary, between Kosovo and Montenegro. But, if

16 Djordjevic is to be judged on the basis of those remarks made by the

17 rank-and-file of the MUP or the VJ on the ground in Kosovo in 1999, we

18 would respectfully suggest that many militaries and police forces better

19 prepare for prosecution before international tribunals. Those are things

20 we would suggest are of limited relevance to the key question before you

21 today which is Djordjevic's responsibility.

22 Now, the next question, the next point I noted was,

23 Mr. President, your question on the deportation to Montenegro and you'd

24 asked specifically about paragraph 73 of the indictment, the issue there,

25 does that paragraph include forcible transfer outside of Kosovo. Now,

Page 170

1 the target of our appeal is the conviction that Djordjevic has, which is

2 a deportation conviction. So we have not developed submissions in our

3 brief about whether this alternative was in the indictment. And all our

4 submissions have intended to do today was, as I think, Mr. President, you

5 noted, to distinguish the two crimes, deportation on the one hand,

6 forcible transfer on the other. Now, we do not say for a moment that

7 Djordjevic should be convicted of forcible transfer in the alternative.

8 The relief sought at paragraph 328 of our appeal brief is explicitly to

9 quash his deportation convictions.

10 Now, perhaps if the indictment had addressed this matter and

11 pleaded population movement from Kosovo to Montenegro as being forcible

12 transfer, this would all have been litigated at trial. And the very

13 nature of your question, I would suggest, and the question that we

14 addressed this morning, to refer to the record, rather shows that the

15 case was just not fought on this basis. Now, perhaps you will develop

16 Stakic in the future in another case, but given the way the indictment

17 was pleaded here, in my submission, this is just not the case for it.

18 Fourthly, Djordjevic 's knowledge and communications with Kosovo

19 during the indictment period, so in 1999. The Prosecution this morning

20 placed particular emphasis on the finding in the trial judgement that

21 Djordjevic was notified in oral reports during the indictment period.

22 The submission made was that this showed him continuing his involvement

23 with Kosovo during the indictment period. Now, we say again - and we

24 said this this morning - that the trial judgement warps its own findings.

25 You see a metamorphosis about - and this is another example - the

Page 171

1 reporting system in the MUP. So at paragraph 1986 of the judgement you

2 see a -- what looks like a damning conclusion that the SUPs in Kosovo

3 reported to Belgrade by telephone and that daily reports, so on, were

4 sent as well. Now, as I say, this conclusion involved a metamorphosis

5 because the original finding earlier in the judgement at paragraph 130 is

6 that communication -- the communications system, excuse me, between

7 Kosovo and Belgrade was cut, damaged by the NATO bombing, by early April.

8 You see that the SUPs could call Pristina, but crucially not Belgrade.

9 And you see that when you look to the evidence that the Trial Chamber

10 cites in that paragraph, 130, which was the evidence of Cvetic, a

11 Prosecution witness, at transcript 6723. So in our submission, the later

12 finding, the metamorphosis, at paragraph 1986 of the judgement is just

13 misleading.

14 The next point I'd noted was the decision to incorporate the

15 Skorpions and whether any innocent inferences remained following that

16 decision. Now, at about 8.20 at night on the 24th of March, 1999, NATO

17 forces unleashed a ferocious attack on the Federal Republic of

18 Yugoslavia. The stated reason was that Yugoslav forces had themselves

19 unleashed a ferocious attack against Kosovo Albanian civilians, but the

20 trial judgement in this case rather undermines NATO's narrative of an

21 extant attack on the civilian population at that stage. Indeed, the

22 indictment doesn't charge crimes that pre-dated NATO's attack. And so

23 the trial judgement repeatedly draws an inference that military action by

24 FRY forces was disproportionate to the threat faced. But nowhere, and

25 this is a point we make in our brief, do you see a global assessment of

Page 172

1 the threat that the Federal Republic of Yugoslavia faced.

2 And on the actual decision to incorporate the Skorpions into the

3 MUP, our respectful submission on appeal is that, yes, this happened and

4 you will not think it an attractive decision. But in the circumstances,

5 it was not necessarily criminal. For example, surely it's better that

6 the Skorpions were incorporated into the MUP, that it was sought to

7 control them, give them police uniforms as we were told this morning,

8 badges, rather than just send them in to Kosovo. Now, the Prosecution

9 rightly said that Djordjevic was not convicted of crimes after the -- for

10 crimes that the Skorpions committed after they were redeployed, but that

11 is our point. His liability was based nevertheless, at least on part, on

12 what happened after they'd been redeployed. If this was an element of

13 the conduct, Djordjevic's conduct, upon which the Prosecution wanted to

14 rely for a conviction, why wasn't this charged?

15 On Stevanovic and Zekovic I only have, I think, two or perhaps

16 three more points to cover, there was simply no evidence that they were

17 the heads of administrations within the RJB as opposed to being assistant

18 ministers. The Prosecution this morning relied on the Trial Chamber's

19 finding of that, but our submission is that the finding is just not based

20 on any evidence. Indeed, it's notable that the Prosecution this morning

21 didn't point to any evidence of this, and we would suggest the conclusion

22 is bizarre.

23 And still on Stevanovic and Zekovic, we say that the trial

24 judgement suffers from a fundamental error because it did not follow the

25 Appeals Chamber's judgement in Krajisnik by identifying the specific role

Page 173

1 played by JCE members and making specific findings how those JCE members

2 used principal perpetrators to commit the crimes. Now, contrast that

3 approach in Krajisnik, in particular paragraphs 283 to 284 of that

4 judgement, contrast that with what's happened in Djordjevic's case. Now,

5 we have JCE members identified in a list at paragraph 2127 of the

6 judgement, but we don't know what their role was, how they actually were

7 said to have used principal perpetrators to -- and so it's this, in our

8 submission, that causes us to struggle to explain - if we are struggling

9 to explain - exactly what the role and the overlaps were between

10 Stevanovic's role as assistant minister on the one hand and his role in

11 the RJB, if any, on the other.

12 A brief point on aiding and abetting and the issue of whether or

13 not Djordjevic was a remote aider and abettor or a proximate, I think was

14 the word used, aider and abettor. Now, in the run-up to the NATO

15 bombing, you see a number of dispatches whereby Djordjevic either signs

16 or somebody else signs on his behalf, sending units to Kosovo. But given

17 that a major war was imminent, we say that there is nothing obviously

18 criminal in that, nor is it inconsistent with his figurehead role in the

19 RJB. And Djordjevic lost out of scrutiny of those types of issues by not

20 looking at them through a specific direction lens.

21 The trial judgement and the OTP this morning says that when

22 crimes were committed in Kosovo, Djordjevic travelled there on a number

23 of occasions, twice I think. But -- and they were using that -- those

24 examples to buttress their submission that he was a proximate aider and

25 abettor rather than a remote one. But if you look at the chronology of

Page 174

1 the crime base, what you will see was that the closest crime to

2 Djordjevic's visits to Kosovo on the 16th and 18th of April was

3 Kladernica, which we have an issue about whether or not it was in the

4 indictment, and Urosevac train station on the 15th of April. There is a

5 suggestion that crimes were committed in Srbica, in Prizren municipality,

6 from the 9th to the 16th of April, perhaps. We just don't know whether

7 that overlapped with Djordjevic's visit at all. But it's just -- it's

8 not apparent to us how it is said that Djordjevic would have known about

9 those when he travelled to Pristina.

10 A brief point, this is my penultimate point, on rank in the

11 hierarchy of the MUP. The MUP did not work, as the Prosecutor sought to

12 say this morning, as a strict hierarchy. A good example of this is that

13 Branko Djuric was the chief of the Belgrade SUP for a while. He was a

14 lieutenant-colonel. His assistant, so his subordinate, was Sreten Lukic,

15 who was a major-general. Now, we can see those ranks in Exhibits D400

16 and D423. So the point is that Djuric was Lukic's boss until Lukic was

17 sent to Kosovo in the summer of 1998, but he had an inferior rank. And

18 that a lieutenant-colonel is junior to a major-general you can see in

19 Exhibit P49.

20 My last point that I had noted was the point about whether or not

21 crime sites were in the indictment, question four that you had posed to

22 us this morning. Now, the prejudicial effect of a defective indictment

23 can be remedied, we don't dispute that, but only if the Prosecution

24 provides an accused with clear, timely, and consistent information that

25 resolves ambiguity or clarifies vagueness. But the jurisprudence, in

Page 175

1 particular, the Simic appeal judgement paragraph 23, emphasises that

2 there can only be a limited number of cases that fall into that category.

3 Now, it is right, as the Prosecution said, to say that where an

4 appellant raises a defect in the indictment for the first time on appeal,

5 he bears the burden of proving that his ability to prepare his defence is

6 materially impaired. But that principle is just of no application in

7 this case. This isn't a vague indictment capable of being cured; it's a

8 very, very specific indictment. Djordjevic could only know that these

9 additional convictions would be entered when the trial judgement was

10 handed down, and if that's not prejudice, I don't know what is. Now,

11 frankly, if the Prosecution wanted to spend its time, its trial time,

12 leading evidence of uncharged events, then that's a matter for the

13 Prosecution.

14 Another point arises on this. The logic of the Prosecution's

15 submission would seem to be that Djordjevic should also have been

16 convicted for everything that happened in 1998, but the indictment just

17 wasn't pleaded on that basis.

18 So in conclusion --

19 JUDGE AGIUS: Yes, because your time is up.

20 MR. HOPKINS: -- Djordjevic didn't plan, instigate, or order a

21 single crime in Kosovo. You see that finding at paragraph 2167 and 2168

22 of the judgement. In particular, there's no nexus, it's said, between

23 anything Djordjevic did and the crimes. It is our submission on appeal

24 that the evidence in this case viewed as a whole shows the concentration

25 of power away from Djordjevic to Kosovo itself to reflect the threat

Page 176

1 there. It's far too simplistic to say that he was the number two man in

2 the ministry and therefore is responsible for everything that happened.

3 The Trial Chamber got the ministry wrong and it got Djordjevic wrong.

4 JUDGE AGIUS: Thank you.

5 Now we move on to the Prosecution appeal. You have 30 minutes.

6 MS. KRAVETZ: Good afternoon, Your Honours.

7 JUDGE AGIUS: Good afternoon.

8 MS. KRAVETZ: In my submissions today, I will address the

9 Prosecution's first ground of appeal and also respond to Your Honours'

10 question number six relating to the Trial Chamber's treatment of

11 persecution based on sexual assaults.

12 We will not be making submissions on ground two of our appeal.

13 This ground concerns the manifestly inadequate sentence imposed on the

14 accused and has been fully briefed in our written submissions.

15 Turning to our submissions on ground one. Your Honours, at the

16 heart of our appeal on ground one lies a simple proposition, that the

17 crime of sexual assault should not be treated differently from other

18 violent acts simply because of its sexual component. And this is what

19 the Chamber did in this case. The outcome of this case as it stands

20 means that more specific evidence of discriminatory intent is required to

21 prove sexual assault as an underlying act of persecution than for other

22 violent acts.

23 As a result of this error, the Chamber found that persecution

24 through sexual assault had not been established in this case and it did

25 not go on to deal with the question of whether Djordjevic was responsible

Page 177

1 for these crimes.

2 My submissions today therefore cover two issues which also

3 respond to the two issues in question six that Your Honours have posed.

4 First, I will deal with the discriminatory intent underlying the Beleg

5 and Pristina sexual assaults. I will explain why, given the context

6 surrounding these incidents, the only reasonable conclusion is that they

7 were committed with discriminatory intent.

8 JUDGE AGIUS: One moment. Judge Guney has a question for you.

9 JUDGE GUNEY: Well, assuming that the Appeals Chamber finds in

10 favour of establishing persecution through sexual assault, can you

11 elaborate on the prevalence of sexual assaults in Kosovo during 1998 and

12 1999 in order to assist the Appeals Chamber in determining whether or not

13 sexual assaults were a natural and foreseeable consequence of the JCE.

14 Thank you.

15 MS. KRAVETZ: There's several parts to Your Honour's question and

16 I will deal with them in turn as I proceed with my submissions, but if I

17 can just respond briefly now, Your Honour. Our position is that we do

18 not need to establish that sexual assault was, in fact, prevalent during

19 the conflict in order for -- to prove that persecutions through sexual

20 assault was established, that the requirement of discriminatory intent

21 required for persecution through sexual assault was established. And our

22 position is also that we do not need to establish that sexual assault was

23 prevalent in order for this crime to have been foreseeable to

24 General Djordjevic. And I will get to this in the course of my

25 submissions and elaborate further upon this issue, Your Honour. So I

Page 178

1 will be addressing this when I deal both with the issue of discriminatory

2 intent and also foreseeability. If that's okay, I will explain our

3 position further as I proceed.

4 JUDGE AGIUS: I think that is okay with you, Judge Guney. Thank

5 you. Let's proceed then. Thank you.

6 MS. KRAVETZ: I was speaking about the first issue that I will

7 address which is the issue of discriminatory intent, and in doing so, I

8 will also deal with the sexual assaults in Pristina and Beleg were not

9 established or the Chamber found had not been established and explain why

10 these too amounted to persecution. And second, I will explain how the

11 Trial Chamber's findings and evidentiary record show beyond reasonable

12 doubt that persecution based on sexual assault was foreseeable to the JCE

13 members including Djordjevic. And we ask Your Honours to correct the

14 Trial Chamber's errors, find that the Beleg and Pristina sexual assaults

15 constitute persecution, and enter convictions pursuant to JCE III for

16 Djordjevic.

17 Turning to the five incidents of sexual violence at issue in this

18 appeal and to the first part of Your Honours' question of whether the

19 element of discriminatory intent for persecution is satisfied in relation

20 to this incident, and if we could please have the slide be brought up in

21 Sanction.

22 The Trial Chamber accepted that the rapes of two women -- thank

23 you.

24 The Trial Chamber accepted that the rapes of two women, K20 in

25 Beleg village and K14 in Pristina, were proved but stated that the

Page 179

1 Prosecution brought "no specific evidence" from which it could infer that

2 the rapes were carried out with a discriminatory intent required for

3 persecution, paragraph 1796. Concerning the three other victims that are

4 listed up on the slide, the two Kosovo Albanian sisters in Beleg village

5 and the Kosovo Albanian girl in a convoy in Pristina municipality, the

6 Chamber found that the allegations of sexual assault were not proven,

7 paragraphs 1792 and 1794.

8 In relation to the two proven incidents, the Chamber ignored

9 direct evidence of discriminatory intent and failed to consider any of

10 the general or specific contextual factors surrounding the sexual assault

11 incidents. These factors are highly relevant in assessing discriminatory

12 intent on the facts on this case and as confirmed by the Appeals Chamber

13 in the Krnojelac case. And that is the Krnojelac appeal judgement

14 paragraphs 184 and 188.

15 In relation to the three sexual assaults that the Chamber found

16 were not established, the Chamber wrongly found that circumstantial

17 evidence was insufficient to establish these crimes and reached an

18 unreasonable conclusion on the basis of the evidence. Had the Chamber

19 properly considered and analysed all relevant evidence, it would have

20 found that Serb forces targeted and persecuted all five women and girls

21 in Beleg and Pristina because they were Kosovo Albanian. And this is

22 illustrated by the context surrounding the sexual assaults.

23 And we can remove the slide.

24 Turning first to the sexual assaults in Beleg village, we have

25 set out the details in paragraphs 25 through 39 of our appeal brief, and

Page 180

1 I will only highlight some key points here today.

2 K20 and the two young Kosovo Albanian sisters were sexually

3 assaulted during the Serb campaign to drive Kosovo Albanians out of

4 Beleg. In late March 1999, Serb forces attacked the village of Beleg.

5 During the course of this attack, Serb forces expelled K20 and her family

6 from their home. The family was then held in a basement in the village

7 along with hundreds of other villagers.

8 That night, K20 was taken from the basement with two other Kosovo

9 Albanian girls, who were sisters, to a burned-out house. There four Serb

10 soldiers gang-raped her. A Serb policeman, this same policeman who had

11 expelled K20's family from their home that same morning, stood guard

12 while the soldiers took turns raping her. While K20 was being raped, she

13 could hear the two sisters screaming. When she was finally released,

14 this policeman told her: "The UCK," referring to the Kosovo Liberation

15 Army, "did worse than they're doing. You can handle them." This remark

16 which the Chamber ignored shows that K20 was targeted because of her

17 ethnicity.

18 The next day the entire village of Beleg was expelled and ordered

19 to head to Albania by Serb forces.

20 Now, in relation to all three incidents, the Chamber failed to

21 consider the context that all the women and girls held in the basement

22 were Kosovo Albanians who had been expelled from their homes and who Serb

23 forces aimed to drive out of Kosovo through violence.

24 In relation to K20, the Chamber failed to consider the Serb

25 policeman's remark as direct evidence of discriminatory intent, just as

Page 181

1 it had considered similar remarks as supporting discriminatory intent

2 against Kosovo Albanians when assessing other forms of persecution:

3 Murder and forcible transfer, for example, in paragraphs 618, 720, 824,

4 1192, and more generally paragraphs 1777, and 1783 to 1789. In relation

5 to the two Kosovo Albanian sisters, the Chamber erred in failing to

6 consider the totality of the evidence in assessing whether these sisters

7 had been sexually assaulted --

8 JUDGE ROBINSON: I know you have referred to the paragraphs, but

9 could you just summarise what is in those paragraphs briefly.

10 MS. KRAVETZ: In those paragraphs that I've referred to, there

11 are references -- there are recitations of evidence by the Trial Chamber

12 where they quote to different statements made by perpetrators either

13 during the forcible expulsions or during the murders, and generally there

14 are statements such as: Where is the KLA? Why aren't they here to save

15 you? Where is NATO? And similar statements of that sort --

16 JUDGE ROBINSON: And your point is that that is corresponding

17 evidence indicating a discriminatory intent?

18 MS. KRAVETZ: Well, the Chamber itself took it into account as

19 evidence of discriminatory intent. In fact, at paragraph 1777 and also

20 1783 to 1789, when they deal with the forcible expulsions and the

21 murders, they specifically refer to the fact that the perpetrators as

22 they are committing these crimes made remarks to the victims which showed

23 that they were targeting them because of their ethnicity and they were

24 making derogatory remarks in the process of committing these crimes. So

25 what we're saying is that the statement made to K20 is similar to other

Page 182

1 remarks the Chamber did take into account when assessing other crimes.

2 Thank you.

3 In relation to the two Kosovo Albanian sisters, the Chamber erred

4 in failing to consider the totality of the evidence in assessing whether

5 the sisters had been sexually assaulted. It ignored K20's evidence that

6 she overheard the sisters screaming at the same locality or location

7 where she was being raped and it failed to draw the only reasonable

8 inference from K58's corroborating evidence that the girls were crying

9 when they returned to the basement. The only reasonable inference on the

10 totality of this evidence is that these three victims were sexually

11 assaulted because they were Kosovo Albanian. They were evicted from

12 their homes, imprisoned in inhumane conditions, sexually assaulted, and

13 finally expelled from Kosovo, fulfilling the aims of the JCE to persecute

14 and forcibly expel the Kosovo Albanian population.

15 To separate the acts of sexual violence from the other

16 persecutory acts the victims endured as the Chamber did is simply wrong.

17 Now, turning to the Pristina sexual assaults, these crimes and

18 the Trial Chamber's errors in assessing them bear similar hallmarks to

19 those in Beleg, and we have set out the details in paragraphs 8 to 24 of

20 our appeal brief and I will not go through the details again here. But

21 both of the victims in Pristina, K14 and the girl in the convoy, were

22 sexually assaulted during the Serb expulsion campaign in that

23 municipality. As the facts relating to K14 show, like the victims in

24 Beleg, Serb forces targeted K14 for expulsion and rape because she was a

25 Kosovo Albanian woman. In fact, only a few days later after being raped,

Page 183

1 fearing further rapes, she and her family fled to Macedonia.

2 In relation to the girl in the convoy, she too was targeted

3 because she was a Kosovo Albanian. The Chamber failed to consider the

4 girl's sexual assault in the context of the persecutory campaign by Serb

5 forces to drive the Kosovo Albanian population from Kosovo. The young

6 girl was, in fact, in a convoy fleeing with hundreds of other Kosovo

7 Albanian refugees and Serb forces directed this convoy and terrorised the

8 refugees on the road.

9 Now, the Chamber found that the Serb attacks on Beleg and

10 Pristina were undoubtedly part of the broader attack on the Kosovo

11 Albanian population, paragraph 1597. And the Chamber also found that the

12 deportations in Pristina and Beleg were acts of persecution,

13 paragraphs 1701, 1774, and 1777. And in doing so, the Chamber inferred

14 discriminatory intent from the fact that the overwhelming majority of

15 those forcibly displaced were Kosovo Albanian, which indicated that they

16 were targeted specifically, paragraph 1777. And the Chamber followed a

17 similar reasoning for the murders, paragraph 1781, and for cultural

18 destruction, paragraph 1855.

19 Your Honours, if Serb forces attacking and cleansing Beleg and

20 Pristina were acting with discriminatory intent when they imprisoned,

21 deported, murdered Kosovo Albanians and damaged Kosovo Albanian property,

22 how could they suddenly not be acting with discriminatory intent when

23 they raped or otherwise abused the five Kosovo Albanian women and girls

24 as part of the same conduct?

25 Turning to the question asked by Your Honour Judge Guney, the

Page 184

1 Chamber took a different approach when assessing the sexual assaults

2 based on the number of incidents, and that's at paragraph 1796. Our

3 submission, which is what I was stating earlier, is that this approach is

4 legally wrong. There is no legal requirement that a certain numeric

5 threshold of sexual assaults be proven in order for these acts to amount

6 to persecution. And the Appeals Chamber has, in fact, confirmed this

7 numerous times, that a single act may be sufficient. For example, in the

8 Kordic appeal judgement, paragraph 102; and Blaskic appeal judgement,

9 paragraph 135. And more generally, the Appeals Chamber has also

10 confirmed that a single act of rape can qualify as a crime against

11 humanity, for example, in the Kunarac appeal judgement, paragraphs 96 and

12 97.

13 Even if the perpetrator's motivation was entirely sexual, it does

14 not follow that the perpetrators did not act with discriminatory intent,

15 as the Appeals Chamber has, in fact, confirmed in the Kunarac case,

16 appeal judgement, paragraphs 153 and 155.

17 There is no reasonable basis for concluding that the Beleg and

18 Pristina sexual assaults were not carried out with discriminatory intent

19 and we ask you to confirm that they amounted to persecution.

20 Turning to the second limb of my argument and also to the second

21 part of Your Honours' question of whether all the required elements of

22 JCE III liability are met in this case, persecution based on sexual

23 assault was foreseeable to the JCE members, including Djordjevic.

24 The Chamber found that Djordjevic shared the intent to

25 participate in a common plan to modify Kosovo's demographic balance by a

Page 185

1 campaign of violence and terror against Kosovo Albanian civilians,

2 paragraph 2158. And it found that persecutions, through deportation,

3 forcible transfer, murder, and destruction of cultural property, was part

4 of this common criminal plan, paragraphs 2149 and also 2151.

5 If persecution through murder was part of the common objective,

6 then other violations of physical integrity, such as persecution through

7 sexual violence, were at the very least foreseeable, particularly in

8 light of the fact that the common objective was to be achieved through a

9 campaign of violence and terror.

10 Your Honours, foreseeability for the purposes of JCE III must be

11 assessed with reference to the overall context in which the crimes were

12 committed and particularly in light of the nature of the common criminal

13 purpose. While evidence that the accused knew that the same types of

14 crimes had been previously committed might be a relevant contextual

15 factor, it is not the only one and it is certainly not an essential

16 ingredient in proving foreseeability.

17 Many cases at the Tribunal have adopted this approach. The

18 Krstic case is a clear example of this. For reference, Krstic trial

19 judgement paragraphs 616 and 617; in Krstic appeal judgement,

20 paragraph 149. The Kvocka case is another example, and we've dealt with

21 this case in more detail in our reply brief, paragraphs 16 and 17.

22 Your Honours, if you carry out a similar contextual analysis in

23 this case, the only reasonable conclusion is that Djordjevic could

24 foresee that sexual assault persecutions might happen.

25 Turning to Djordjevic's knowledge, the Chamber found that

Page 186

1 Djordjevic had detailed knowledge of the events on the ground in Kosovo

2 in 1998 and in 1999, paragraphs 1985 to 1998. Specifically, Djordjevic

3 was well aware of the prevailing contextual factors which made sexual

4 assault persecutions foreseeable in this case. He knew that the forcible

5 expulsion campaign would be implemented by Serb forces through violence

6 and terror, paragraphs 2126, 2129, 2130. He knew that Kosovo Albanian

7 women and girls would be placed in circumstances rendering them

8 especially vulnerable. In fact, the whole point of the criminal plan he

9 endorsed was to force the Kosovo Albanian population, including the women

10 and the girls, from the safety and the security of their homes,

11 paragraphs 2126 and 2129.

12 More significantly, Your Honours, as my colleague Mr. Wood

13 already explained, from the outset of the campaign, Djordjevic knew that

14 forces under his command were directly targeting vulnerable women and

15 children. His knowledge of the massacre of 14 women and children in

16 Podujevo by the Skorpions on 28th March 1999, only four days after this

17 campaign began, is a concrete example of this, paragraph 1993.

18 And finally, he put no meaningful safe-guards in place to prevent

19 crimes from happening; to the contrary, he established a pervasive

20 culture of impunity among his subordinates by failing to punish and by

21 actively concealing their crimes. For reference paragraphs 1966, 1981,

22 1985, 1994, and 1999.

23 ICTY case law confirms the relevance of -- oh.

24 JUDGE ROBINSON: I have a question but I want to revert to the

25 question of the evidence needed for discriminatory intent.

Page 187

1 MS. KRAVETZ: No problem, Your Honour.

2 JUDGE ROBINSON: If you'd rather finish, I could ask it at the

3 end.

4 MS. KRAVETZ: I have only a couple more minutes.

5 JUDGE ROBINSON: Yes.

6 MS. KRAVETZ: It's up to Your Honour.

7 JUDGE ROBINSON: Well, conclude and then I'll ask it at the end.

8 MS. KRAVETZ: Okay. I was referring to ICTY case law which

9 confirms the relevance of the factors that I have just set out in

10 predicting sexual violence and/or other violent crimes. And for example,

11 I refer Your Honours to the Krstic trial judgement, paragraph 616, and

12 appeal judgement, paragraph 149; Kvocka trial judgement, paragraph 327;

13 Stakic appeal judgement, paragraphs 93 and 95; and Stanisic and Zupljanin

14 trial judgement, volume II, paragraphs 525, 526, and 776.

15 From the factors I have referred to, Your Honours should take the

16 violent nature of the common purpose into account as a very significant

17 predictive factor. In its judgement, the Trial Chamber repeatedly

18 confirmed that the use of violence and terror was an essential component

19 of the common purpose. For example, in paragraphs 2035, 2126, and 2129.

20 It is obvious that in order to permanently uproot hundreds of

21 thousands of Kosovo Albanians, the armed Serb forces had to use violence,

22 including door-to-door expulsions, to terrify the targeted population

23 into leaving. And it is also obvious that in implementing this campaign,

24 these forces would come into one-to-one physical contact with the

25 population and that violent crimes against civilians, including against

Page 188

1 women and girls, might happen.

2 And this is exactly what the Chamber found when dealing with the

3 crime of murder. The Chamber made alternative findings that murder was a

4 JCE III crime, paragraph 2153. And in finding that murder was

5 foreseeable to Djordjevic, the Chamber indicated that it had no doubt

6 that JCE members were aware of the possibility that Kosovo Albanian women

7 and children might be killed by Serb forces in the course of implementing

8 orders to enter towns and villages and clear them of Kosovo Albanians,

9 paragraphs 2139, 2141, and 2145.

10 If the overarching use of violence and terror in carrying out the

11 expulsion campaign is relevant in predicting violations of physical

12 integrity like persecution through murder, then it is equally relevant in

13 predicting violations of physical integrity like persecution through

14 sexual assault. Not only was the possibility of persecutory sexual

15 assault foreseeable to Djordjevic, he willingly took the risk that this

16 would happen by joining and continuing to participate in that enterprise,

17 paragraph 2158.

18 And since we have a few minutes left, I can address Your Honour's

19 question before my time is up.

20 JUDGE ROBINSON: Yes, as I said, I wanted to revert to the

21 question of the evidence needed for discriminatory intent to establish

22 persecutions. It would be correct to say, wouldn't it, that for the most

23 part this is going to be by inference? You may have direct evidence, but

24 for the most part I think it would be a matter of inference; and if that

25 is so, it would be governed by the principle that that inference should

Page 189

1 be the only reasonable inference, there should be no other possibility of

2 another reasonable inference.

3 Now, I find this the most interesting but, at the same time, the

4 most difficult aspect of this entire appeal. Very, very difficult for me

5 to know which way to go so I need all the help that I can get from both

6 parties. Would it be reasonable to explain the sexual assault on the

7 basis that it was just done for sexual gratification? Would that not be

8 another reasonable inference?

9 MS. KRAVETZ: Your Honours, I briefly touched upon that issue and

10 I can go back to it, but this Appeals Chamber has made clear that we

11 should not confuse motive and intent. And regardless of whether the

12 perpetrators of these crimes were acting due to -- because they were

13 looking for sexual gratification or because they were simply taking

14 advantage of the circumstances, that does not preclude a finding that

15 they were, in fact, acting with discriminatory intent. And what we're

16 asking Your Honours to do is to look at the context -- the circumstances

17 surrounding these crimes in order to establish that they were, in fact,

18 committed with discriminatory intent, and this is why I've drawn the

19 parallel with the other crimes that the Chamber found had been

20 established as persecutions or as underlying acts of persecutions --

21 JUDGE ROBINSON: Might have been wrong in that finding. I'm just

22 making the comment. You're referring to the Chamber making other

23 findings, but that assumes that we will agree or that I will agree that

24 the Chamber was correct in those findings.

25 MS. KRAVETZ: I understand your point, Your Honour, but we should

Page 190

1 not forget that at the core of this entire campaign of violence and

2 terror that the Chamber found had been established in its judgement was

3 the crime of persecution against the Kosovo Albanian population which the

4 Chamber found had been committed through a series of underlying acts,

5 murder, deportations, forcible transfer, and cultural destruction.

6 This clearly shows that the JCE members, including Djordjevic,

7 intended to discriminate against Kosovo Albanians. So the point I was

8 making earlier is if this is at the core of this campaign, the intention

9 to discriminate against the Kosovo Albanian population, and if the

10 perpetrators of these crimes on the ground were found to be acting with

11 discriminatory intent when they expelled the population, for example, in

12 Beleg, from their homes and then they imprisoned them and then they

13 sexually assault the women, they beat the men, and the next day deport

14 everyone, if they are found to be acting with discriminatory intent when

15 they are carrying out all these other acts, we cannot artificially

16 separate the acts of sexual violence the victims endured from all the

17 other forms of violence that they endured which were found to be

18 persecutory acts. And this is why we are asking Your Honours to look at

19 the crimes committed in the context that they were committed, and this is

20 an error we have pointed out in the way the Chamber approached these

21 crimes. The Chamber clearly separated them out from all the other forms

22 of violence that it found had amounted to persecution --

23 JUDGE ROBINSON: Have you precedence from our case law in which

24 Trial Chambers or the Appeals Chamber has erred in similar circumstances?

25 Such evidence to be good evidence of discriminatory intent.

Page 191

1 MS. KRAVETZ: Well, the case law I have referred to is -- and I

2 don't know how I'm doing with time, but the case law I had referred to is

3 the Krnojelac appeal judgement, paragraph 184 to 188, where the Appeals

4 Chamber confirmed that the fact that something happens at the same time

5 of the broader discriminatory attack does not mean that an inference of

6 discrimination can automatically be drawn. But the Appeals Chamber also

7 confirmed that if the circumstances surrounding the commission of the

8 specific crimes are consistent with the broader discriminatory attack,

9 which in this case the Chamber found to be established, then of course

10 discriminatory intent may be inferred from contextual factors. And this

11 is what we are asking Your Honours to do to apply that. And I had -- as

12 I had indicated, the Chamber in this case, in fact, found for both Beleg

13 and Pristina that the crime of persecutions had been established in

14 this -- as an underlying act, it found that deportation had been

15 established as a crime of persecution. And I've referred to the specific

16 paragraph where that finding has been made.

17 So they have made a general finding that this attack was part of

18 a broader attack on the Kosovo Albanian population and that the crime of

19 persecutions in these localities had been established.

20 JUDGE AGIUS: Okay. Thank you. At the end of the day, the

21 bottom line is what Judge Robinson pointed out, namely, that this being a

22 matter of inference, whether what you are suggesting basically is the

23 only reasonable inference that a reasonable trier of fact can reach.

24 Okay.

25 So we'll have a break now which -- until 5.30, so instead of