1 Monday, 13 May 2013
2 [Appeals Hearing]
3 [Open session]
4 [The appellant entered court]
5 --- Upon commencing at 9.00 a.m.
6 JUDGE AGIUS: So good morning to everyone.
7 Madam Registrar, could you call the case, please.
8 THE REGISTRAR: Good morning, Your Honours. This is case
9 IT-05-87/1-A, the Prosecutor versus Vlastimir Djordjevic.
10 JUDGE AGIUS: Thank you.
11 Mr. Djordjevic, I want to make sure that you can hear and follow
12 the proceedings in a language that you can understand?
13 THE APPELLANT: [Interpretation] Yes, Your Honour. It's fine.
14 JUDGE AGIUS: Okay. Thank you.
15 I have a problem with my earphones. I can't hear a thing.
16 [Appeals Chamber and Registrar confer]
17 JUDGE AGIUS: Let's start in the meantime. Someone will come up
18 here and do the adjustments.
19 So thank you, Mr. Djordjevic.
20 As a preliminary matter, counsel for Mr. Djordjevic recently
21 requested that in addition to Mr. Russell Hopkins, Ms. Marie O'Leary,
22 legal assistant on the Djordjevic Defence team, would also be permitted
23 to take part and make oral submissions on behalf of appellant
24 Mr. Djordjevic. I understand that appellant Mr. Djordjevic consents to
25 this and the Prosecution has indicated it has no objections. Stop me if
1 that is not so. Having consulted with the rest of the Bench, I hereby
2 inform you that the request is granted. Thank you.
3 Let's proceed with appearances. Prosecution first.
4 MS. KRAVETZ: Good morning, Your Honours. For the Prosecution,
5 my name is Daniela Kravetz, together with my colleagues Kyle Wood,
6 Saeeda Verrall, and our case manager, Colin Nawrot. Thank you.
7 JUDGE AGIUS: Thank you very much, Ms. Kravetz.
8 And appearances for appellant Mr. Djordjevic.
9 MR. DJORDJEVIC: Your Honours, I am the lead counsel,
10 Dragoljub Djordjevic, and today together with me is co-counsel
11 Mr. Djurdjic, and our three legal assistants, Mr. Aleksandar Popovic,
12 Ms. Marie O'Leary, and Mr. Russell Hopkins. Thank you.
13 JUDGE AGIUS: Thank you very much.
14 Vlastimir Djordjevic and the Office of the Prosecutor lodged
15 appeals against the trial judgement rendered in this case on the
16 23rd of February, 2011, by Trial Chamber II. In accordance with the
17 Scheduling Order issued by me on the 22nd of March, 2013, the
18 Appeals Chamber will hear the appeals in this case today. Before doing
19 so, I will provide a brief summary of the case, as is customary, and of
20 Mr. Djordjevic's and the Prosecution's respective grounds of appeal. I
21 will then outline how we will proceed today.
22 This case concerns the responsibility of Mr. Djordjevic for
23 crimes committed by the forces of the Federal Republic of Yugoslavia and
24 Serbia in Kosovo from 1st January to 20th June 1999. During this
25 relevant period, Mr. Djordjevic was the assistant minister of the MUP,
1 the Ministry of Internal Affairs of Serbia, and chief of the public
2 security department.
3 The Trial Chamber found that from at least early January to
4 June 1999, a joint criminal enterprise, or as it may be referred to in
5 the course of this hearing, JCE, existed amongst the political, military,
6 and police leadership of the Federal Republic of Yugoslavia and Serbia,
7 including Mr. Djordjevic himself. This JCE had the purpose of modifying
8 the ethnic balance of Kosovo in order to ensure Serbian control over the
9 province by waging a campaign of terror and violence against the Kosovo
10 Albanian population, which included the commission of deportations,
11 forcible transfers, murders, and persecutions. The Trial Chamber found
12 that this campaign was carried out by Serbian forces, including numerous
13 MUP forces under the command and control of Mr. Djordjevic. It further
14 found that Mr. Djordjevic contributed to the joint criminal enterprise,
15 inter alia, through his failure to investigate and active concealment of
16 crimes committed against Kosovo Albanians.
17 The Trial Chamber convicted Mr. Djordjevic pursuant to
18 Article 7(1) of the Statute, on the basis of both commission through his
19 participation in the JCE and for aiding and abetting the following
20 crimes: Deportation; murder; other inhumane acts, consisting in forcible
21 transfer; and persecutions on racial grounds, through deportation,
22 forcible transfer, murder, and destruction or damage to property of
23 cultural and religious significance, as crimes -- these as crimes against
24 humanity under Article 5 of the Statute. In addition, was also convicted
25 for murder as a violation of the laws or customs of war under Article 3
1 of the Statute. The Trial Chamber, however, found that persecutions
2 through sexual assault had not been established.
3 Mr. Djordjevic, as you are aware, was sentenced to 27 years'
5 Mr. Djordjevic advances 19 grounds of appeal challenging his
6 conviction and his sentence and requests that the Appeals Chamber reverse
7 his convictions in their entirety or, in the alternative, reduce his
8 sentence. In grounds one through eight, Mr. Djordjevic alleges a number
9 of errors of law and fact with respect to the Trial Chamber's findings
10 concerning the joint criminal enterprise. In grounds nine and ten,
11 Mr. Djordjevic challenges the Trial Chamber's findings concerning his
12 participation in the JCE and his mens rea for JCE liability. In
13 ground 11, he challenges the Trial Chamber's conclusion that he aided and
14 abetted the crimes. And in ground 12, he submits that the Trial Chamber
15 erred in its determination of the protected status of individuals.
16 In ground 13, he submits that the Trial Chamber erred in finding
17 that a de facto border existed between Kosovo and Montenegro. In
18 grounds 14 to 17, he alleges that the Trial Chamber committed several
19 errors of law and fact in relation to its findings concerning the crimes
20 of deportation, other inhumane acts consisting in forcible transfer,
21 murder, and persecutions. In ground 18, Mr. Djordjevic challenges his
22 conviction for the crimes on the basis of both joint criminal enterprise
23 liability and aiding and abetting and the cumulative convictions entered
24 by the Trial Chamber in relation to Article 5. Finally, in ground 19
25 Mr. Djordjevic challenges the sentence imposed on him by the
1 Trial Chamber.
2 The Prosecution responds that all grounds of Mr. Djordjevic's
3 appeal should be dismissed. I will now turn to the appeal of the
5 The Prosecution advances two grounds of appeal. Under its first
6 ground, the Prosecution argues that the Trial Chamber erred in law and
7 fact in finding that persecutions through sexual assault had not been
8 established. Under its second ground of appeal, the Prosecution submits
9 that the Trial Chamber erred in exercising its discretion in determining
10 the sentence.
11 Mr. Djordjevic responds that the Prosecution's grounds of appeal
12 should be dismissed.
13 During this hearing, counsel may argue the grounds of appeal in
14 any order they consider suitable for their presentation. I recall that
15 the parties were invited to discuss a number of issues set out in the
16 addendum to the Scheduling Order issued on 12th April 2013. For the sake
17 of clarity, I ask that the parties indicate which issue they are
18 addressing by reading out the relevant question at the beginning of their
20 I also urge counsel not to repeat verbatim or to summarise
21 extensively the arguments presented in their briefs with which, please
22 remember, the Appeals Chamber is already familiar. I also stress that
23 the parties are invited to provide precise references to material
24 supporting their oral submissions.
25 I would also like to recall that this appeal is not a trial
1 de novo and the parties must refrain from repeating their cases which
2 were presented at trial. Article 25 of the Statute stipulates that the
3 parties must limit their arguments to any alleged errors of law which
4 invalidate the trial judgement or alleged errors of fact which occasion a
5 miscarriage of justice.
6 I will now turn to the timetable for the submissions to be made
7 by the parties today. On the 8th May, the Appeals Chamber issued an
8 amendment to the aforementioned addendum, introducing a slight revision
9 to the timetable for the parties' submissions. I take this opportunity
10 to apologise to you all for the change on such a short notice; however,
11 it was unavoidable and I wish to thank the parties for their co-operation
12 and understanding. Basically, in the absence of the President later on
13 today and as acting President, I have -- I've been charged with dealing
14 with a high-level meeting with a delegation from one particular country
15 in anticipation of a future event happening here in the Tribunal, and it
16 was either the President or myself that could conduct it or preside over
17 this meeting. So I had to arrange -- make arrangements to stop for one
18 hour. The idea is the meeting may well take up a whole hour or it may
19 well take up less time. In that case, I will ask you to stand by at
20 least 15 to 30 minutes before we are supposed to re-start at 4.00 so that
21 if we can start earlier, we will start earlier. But I will let you know
22 in due course.
23 In accordance with the amendment, we will proceed as follows. We
24 will first hear the appeal submissions of Mr. Djordjevic. And counsel
25 for Mr. Djordjevic, or whoever will be doing this, will have a total of
1 two hours for their submissions. We will have a break after one hour and
2 20 minutes of Mr. Djordjevic's submission. We will then resume at 11.00
3 for the remainder of the submissions by counsel for Mr. Djordjevic. And
4 then we will proceed immediately with the Prosecution's response. The
5 Prosecution also will have two hours. We will then break for lunch at
6 12.40 and resume at 2.00. For the time being, I won't mention the rest
7 of the timetable. That will come later.
8 We will now move immediately to hear submissions by the
9 Djordjevic team. Thank you.
10 I wish to remind parties that we may interrupt them at any time
11 to ask questions or may ask questions following each of their submission
12 or at the end of the hearing depending on what we think is best at any
13 given time. Thank you.
14 I know that you will be standing up but while you remain seated I
15 cannot see you. So if you could actually move -- later on when you're
16 sitting, move one chair it will be better for everyone.
17 So good morning and you are in control now.
18 MR. DJORDJEVIC: [Interpretation] Good morning, Your Honours,
19 members of the Appeals Chamber. It is my pleasure that we are able to
20 present additional reasons why this additional order has been made --
21 JUDGE AGIUS: One moment. We will be checking the time based on
22 the clock in this courtroom. So you're starting now at 9.18. Go ahead.
23 MR. DJORDJEVIC: [Interpretation] Thank you. It is our pleasure
24 to be able to address you with additional submissions, as you have
25 stated, and you are already familiar with our appeals brief and our
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
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
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
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
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
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."
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
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
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
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
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
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.
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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,
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
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."
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.
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
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
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.
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
24 JUDGE KHAN: Another country, thank you.
25 MR. HOPKINS: And I say that is consistent with the common
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
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
21 JUDGE ROBINSON: In 1999?
22 MR. HOPKINS: In 1999. The position is, of course, different
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,
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
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
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
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,
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
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
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 --
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
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
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
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.
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.
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.
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
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
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
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.
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?
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
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
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
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
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
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
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.
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
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
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
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
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,
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),
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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.
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 --
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
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
25 Does that answer Your Honour's question?
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
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
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,
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,
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
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
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
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
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
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
1 that the Appeals Chamber uphold Djordjevic's convictions for aiding and
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
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
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.
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.
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
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
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 --
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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.
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
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
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
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
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
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,
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
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
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
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
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
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
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
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
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
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
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
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
22 The Trial Chamber accepted that the rapes of two women -- thank
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
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
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
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
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
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,
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
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
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
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
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.
1 MS. KRAVETZ: No problem, Your Honour.
2 JUDGE ROBINSON: If you'd rather finish, I could ask it at the
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
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
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
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.
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.
25 So we'll have a break now which -- until 5.30, so instead of
1 30 minutes, 25 minutes. Okay. And we will resume after that, 5.30
2 sharp, with your response. And from there we'll proceed towards
3 concluding this hearing. Thank you.
4 --- Recess taken at 5.05 p.m.
5 --- On resuming at 5.34 p.m.
6 JUDGE AGIUS: Yes, Ms. O'Leary, you have 30 minutes.
7 MS. O'LEARY: Thank you, Your Honour. And good afternoon again
8 to Your Honours and thank you for the opportunity to respond to the
9 Prosecution. We feel we have put our most salient points in our written
10 response and we will try not to reiterate them here. The Prosecution has
11 raised some points today that I will respond to, but I'll frame them in
12 the context of your sixth question relating to the Prosecution's first
13 ground of appeal.
14 The question you've asked us is: Was the element of
15 discriminatory intent for persecutions satisfied with regard to the rapes
16 of witnesses K14 and K20 as well as the alleged sexual assaults of the
17 girl in the convoy and the two young Kosovo Albanian women in Beleg?
18 There is one answer to all of those incidents, Your Honours, and it's no.
19 The Trial Chamber did not find discriminatory intent as the evidence was
20 not there to establish a dolus specialis. This is important to remember,
21 Your Honours --
22 JUDGE AGIUS: Yes. If someone could assist, the headphones of
23 Judge Guney seem to have gone bust.
24 Okay, Ms. O'Leary.
25 MS. O'LEARY: Thank you. It's important to note that the
1 Prosecution charged these sexual assaults not as their own crimes against
2 humanity but as underlying acts of persecution, knowing that the element
3 of discrimination against a protected group must be proven beyond a
4 reasonable doubt. Noting this, the Trial Chamber held at paragraph 1796
5 that this required the Prosecution to prove that the perpetrators acted
6 with intent to discriminate against the ethnic Kosovo Albanians as an
7 ethnic group. The Trial Chamber found two incidents of sexual assault
8 but found that, and I quote:
9 "No specific evidence has been presented with respect to either
10 of these incidents, that the perpetrators acted with an intent to
12 Citing to the limited number of incidents, the Trial Chamber
13 properly found that, and I quote:
14 "The ethnicity of the two victims alone is not a sufficient basis
15 to establish that the perpetrators acted with a discriminatory intent."
16 And, Your Honours, we're talking about two incidents here. The
17 Prosecution has mentioned five incidents because they are putting
18 together the three that were not found. Evidence simply was not
19 sufficient to make a finding beyond a reasonable doubt that there was
20 sexual assault against these unknown women, much less the intent of the
21 perpetrators. It was not the only reasonable inference.
22 If we look to the law cited by the Trial Chamber as setting forth
23 the standard it employed in assessing the evidence of discrimination in
24 the cases of K14 and K20, it is important to note that it is not
25 sufficient for an accused to be aware that he or she is, in fact, acting
1 in any way that's discriminatory. He or she must consciously intend to
2 discriminate. And that's the Djordjevic trial judgement at
3 paragraph 1759, citing the Brdjanin trial judgement at paragraph 996, and
4 the Kordic and Cerkez trial judgement at paragraph 217.
5 Here it is evident that the Trial Chamber did take the entirety
6 of circumstances of each crime into consideration, and this is shown in
7 the Trial Chamber's ability to establish other persecutory acts based on
8 the context of the circumstances of the exact crimes, notably wanton
9 destruction. I note that the Prosecution has mentioned some of these
10 incidents today that were found in the trial judgement, in particular
11 findings of persecution in killings and wanton destruction, and it's
12 important to read those paragraphs of the trial judgement because in
13 those cases, quite often there is a specific religious connotation that
14 is taking part. That element of it is what lent the Trial Chamber to
15 determine that these were discriminatory acts. Although this should be
16 noted with the fact that the Defence is challenging the far-reaching
17 inferences to establish wanton destruction in our appeal brief at
18 ground 15.
19 With the crime of persecution it is the subjective intent of the
20 perpetrators that matters. The subjective intent was not established on
21 the evidence for these two sexual assaults. We have no idea if, in fact,
22 their motives were discriminatory, and to ask the Appeals Chamber to step
23 in now and say that discriminatory intent is the only reasonable
24 conclusion and reverse the Trial Chamber's considered decision on this
25 point would be a step too far. The evidence of discriminatory intent is
1 simply not established so as to preclude that the direct perpetrators
2 could have been acting with a mere criminal intent, not with specific
3 discriminatory intent. And as stated by the Martic trial judgement at
4 paragraph 473, and I quote:
5 "Not every grave crime in war amounts to a persecutory act."
6 However, we take the Prosecution's definition of applying
7 discrimination from context. Any crime committed by any member of the
8 Serb forces, and this includes basically anyone dressed in a uniform, in
9 Kosovo in 1998 or 1999 would be discriminatory. This is simply
11 Such a standard would require no evidence beyond the finding of
12 sexual assault. It wouldn't even require a specific defendant because,
13 by this standard, every single police person, every military personnel,
14 in fact every politician would be responsible for a crime of persecution
15 for any sexual assault in Kosovo at this time. This standard is
16 amazingly broad and it violates the principles of a fair trial.
17 Further, this goes against the Appeals Chamber who has
18 specifically held that discriminatory intent may not be inferred directly
19 from the general discriminatory nature of an attack on a civilian
20 population. And this is the jurisprudence that's been cited to, it
21 arises out of several appeals judgements, and it was cited to by the
22 Djordjevic trial judgement at paragraph 1760. The Trial Chamber also
23 referred to the standard that allows inference of discriminatory intent
24 from context, yet they did not find discriminatory intent in this case
25 for these acts. It simply was not the only reasonable conclusion from
1 the evidence.
2 And to answer the latter part of your question, were all of the
3 requisite elements for liability under the third category of joint
4 criminal enterprise met? Again, no. Even if by some stretch
5 discriminatory intent had been found beyond any reasonable doubt for one
6 or all of these incidents, it still does not rise to a level of
7 culpability for Vlastimir Djordjevic.
8 Are sexual assaults foreseeable in every war, even in peace time?
9 And is it foreseeable that there are rapes happening in conflicts that go
10 on even today? Absolutely, we read about it every day. But it does not
11 make it okay and it does not sanction such behaviour. But to say that it
12 is foreseeable in the general context of war criminalises war. It's
13 criminalising the use of any police or military in any situation anywhere
14 in the world.
15 Now, the Prosecution today has cited to some cases and in their
16 brief, in particular the Krstic case, for findings of foreseeability, and
17 they specifically cited to paragraphs 616 and 617, and they are clearly
18 distinguishable from the case at hand, Your Honours. The Krstic case is
19 a Srebrenica case, which I'm sure you're all familiar with, and the
20 specifics of the Krstic case with this foreseeability were focusing on a
21 mass influx of up to 30.000 people, largely women, children, and elderly,
22 who had congregated in a small area over the course of a couple days.
23 Furthermore, it was Krstic's role in being on the ground and witnessing
24 this that gave rise to a foreseeability to Krstic himself based on his
25 communications and proximity to the events and this is very narrow.
1 Similarly, Your Honours, the Prosecution cites to several camps
2 cases where there were detention centres that were being run, in
3 particular today they mention the Stakic case, Kvocka case, and Stanisic
4 and Zupljanin. These are also extremely distinguishable. The facts of
5 these cases, if you're looking to the exact context that was considered
6 by the Chamber, in particular looking at the Kvocka trial judgement at
7 paragraph 327 that was cited today, there they found at the Omarska camp
8 where approximately 36 women were held in detention, it was specifically
9 known to these people that these women were "guarded with men by
10 weapons," and I'm quoting, "who were often drunk, violent, and physically
11 and mentally abusive and who were allowed to act with virtual impunity."
12 Another camps case that gets cited for this foreseeability is the
13 Krnojelac appeal judgement. However, if you look to the facts of that
14 specific case and those actors, we're looking at a camps case again where
15 people are in detention. And in the Krnojelac appeal judgement they're
16 specifically considering two separate groups in the detention centre,
17 Serbs and non-Serbs, who were kept in different conditions with the Serbs
18 being treated in a much better way than the non-Serbs. It was a clearly
19 discriminatory line that was drawn there.
20 Your Honour, in this case we cannot lose sight of the context of
21 the situation. We're talking about the entirety of a police and military
22 force engaged in an entire province over the course of months or even
23 years. It is not limited, as the camps cases, or the Krstic case.
24 And as stated in our response, there are a series of errors that
25 must be found to get to the point of JCE III liability for these crimes
1 for Vlastimir Djordjevic. Leaving aside the fact that the three sexual
2 assaults were not even found that have been discussed today, if we're
3 going even with those two sexual assaults that were found, one, you would
4 need to make a finding of persecutory intent for these two sexual
5 assaults, a finding beyond a reasonable doubt; two, a finding that these
6 sexual assaults were a natural and foreseeable consequence to
7 Vlastimir Djordjevic specifically; and finally, that he willingly took
8 this risk in contributing to the JCE. And what's critical here is
9 number two, Your Honours, the foreseeability must be to that person.
10 There is absolutely no evidence in this case that Vlastimir Djordjevic or
11 even any of his subordinates were aware of these crimes. The two victims
12 who came to testify here clearly testified they did not report the crimes
13 to the local police at any time. And this is for K20 at transcript 8514;
14 and for K14, it's at transcript 9042 to 9043.
15 We have to remember that this is 1999 and the ICTY is up and
16 running and statements are being taken by investigators, and when asked,
17 K20 was asked if she believed that giving her statement to the ICTY was
18 the proper route for investigation and follow-up of the crime, she
19 responded: Yes, of course that's what I thought."
20 There was simply no way to know that these crimes were ongoing.
21 The Prosecution also cites today to Podujevo or concealment as
22 evidence of these crimes, especially given the vulnerability of the women
23 and children that they cite in Podujevo. But, Your Honour, there were
24 not sexual assaults in Podujevo. It is simply a way of referring again
25 to these same crimes of concealment, lack of investigation, and the
1 Skorpions generally to find culpability for Vlastimir Djordjevic.
2 There's simply no evidence of notice to Djordjevic that this type of
3 crime was happening or could happen, and the fact that these two
4 incidents are far from sexual assaults as being part of a widespread
5 campaign or expulsions or even a foreseeable consequence. The intent of
6 Djordjevic is not established -- did not establish a persecutory intent
7 beyond reasonable doubt, and there's nothing in the evidence that shows
8 that he possessed such an intent or that even such an inference can be
10 And, Your Honours, I have one final point. It must be said that
11 if we are grappling with the issue now, if these findings were made, that
12 is the definition of reasonable doubt and it must go to Vlastimir
13 Djordjevic's favour as the defendant. The Prosecution has to prove their
14 case and they simply have not. They've made no showing that no
15 reasonable Trial Chamber could have come to a conclusion regarding the
16 sexual assaults, and we therefore ask that ground one be rejected.
17 JUDGE AGIUS: Thank you, Ms. O'Leary.
18 So I suppose that concludes the Defence response.
19 Prosecution, you have, what, 15 minutes for your reply.
20 MS. KRAVETZ: Thank you, Your Honour.
21 My colleague in her submissions referred to the fact that it is
22 necessary in order to prove discriminatory intent to establish that the
23 accused must have consciously intended to discriminate. Your Honours,
24 this is a clear finding that the Chamber made in this case. The Chamber
25 found that the crime of persecutions was part of the common criminal
1 purpose in this case, persecutions against the Kosovo Albanian
2 population. And it also found that Djordjevic was a JCE member and that
3 he intended to carry out this common criminal plan, and this is in 2158.
4 So it is clear from these findings that he shared this intent to
5 persecute the Kosovo Albanian population.
6 As for the context that my colleague referred to, when we
7 referred to the circumstances surrounding the incidents we're not
8 speaking about the entirety of the conflict. We're referring to the
9 specific circumstances surrounding the attacks in Beleg and Pristina that
10 these victims who were sexually assaulted in this case suffered and the
11 whole series of violent and persecutory acts that they endured. And we
12 have direct evidence of these persecutory and violent acts that these
13 victims endured, at least from two victims, from K14 and K20. And if we
14 draw parallel to the factors that the Chamber took into account when it
15 found that the other crimes -- that discriminatory intent had been
16 established for the other crimes, we can see that these two meet the same
17 requirements that the Chamber found.
18 We know the ethnicity of the victims was Kosovo Albanian and in
19 the case -- and we know that from direct evidence of the victims
20 themselves. We know that the Serb -- that the perpetrators were Serb
21 forces, which is the same as the other acts that the Chamber found to
22 have been carried out as acts of persecution. We also know, and this is
23 an additional factor that the Chamber took into account, at least in the
24 case of K20, that one of the perpetrators made a direct remark to her
25 immediately after she had been gang-raped by Serb soldiers. And we say
1 that this is direct evidence of discriminatory intent.
2 And we know that these victims, in addition to having been
3 sexually assaulted, were also victims of expulsions, of imprisonment in
4 the case of the Beleg victims, of destruction of their homes, and finally
5 they were deported from Kosovo, fulfilling the aims of the JCE to
6 persecute and to forcibly expel the Kosovo Albanian population. Their
7 sexual assaults cannot be disassociated or separated or looked in
8 isolation from the rest of the persecutory acts that they endured. So
9 when we ask Your Honours to look at the context, we are referring to
10 that, to the other violent acts that these same victims endured during
11 the course of the implementation of the campaign by Serb forces.
12 Now, turning to the issue of the foreseeability of these acts,
13 Your Honours, the position we're advancing in our appeal should not be
14 understood as an overly broad interpretation of responsibility under
15 JCE III. In this case we're not speaking, as the Defence suggests, about
16 the general risk of sexual violence during any armed conflict. In fact,
17 we're not even speaking about the risk of sexual violence in any
18 deportation campaign.
19 We're talking about a situation where there was a particular
20 common criminal plan which incorporated the use of violence and terror
21 against a targeted population, and what was foreseeable to Djordjevic in
22 those circumstances. We are speaking about the considerably heightened
23 risk of sexual violence happening in the midst of an expulsion campaign
24 where tens of thousands of armed troops are sent into villages and towns
25 and where they come into one-to-one contact with the targeted population
1 and where they're instructed into terrify the targeted population into
2 leaving. And this is the common criminal plan that the Chamber found
3 that Djordjevic had signed up to. In these circumstances, violent crimes
4 against Kosovo Albanians, both men and women alike, were foreseeable
5 consequences of the mass displacement campaign that he and his fellow JCE
6 members implemented.
7 Now, on the issue raised by my colleague about the knowledge of
8 prior crimes or whether these incidents have -- had been reported or not
9 and whether Djordjevic could have had this information available, as I
10 stated in my submissions, it is not a requirement that the -- for a crime
11 to be foreseeable that the accused have prior knowledge that the same
12 types of acts were previously committed. In fact, in the cases that I've
13 listed, and I'm not going to go through the list again, the case law has
14 repeatedly confirmed that awareness of the prevailing contextual factors
15 is sufficient to make, in this case, sexual assault persecutions
16 foreseeable. And I've gone through the different contextual factors that
17 made sexual assaults persecution foreseeable to Djordjevic in this case.
18 So my colleague is simply misstating the relevant jurisprudence when she
19 suggests that there is a requirement of prior knowledge or notice of
20 these crimes.
21 And finally, Your Honours, just to go back to Judge Robinson's
22 and also Judge Agius -- Your Honour Judge Agius' question, in this
23 case -- and I'm going back to the issue of discriminatory intent. In
24 this case, we are not dealing with a case that is entirely based on
25 circumstantial evidence. As I've stated, at least for two victims, K14
1 and K20, we have direct evidence from the victims themselves of what
2 happened to them and we have direct evidence of the circumstances that
3 surrounded the rapes and the fact that they were targeted because they
4 were Kosovo Albanian women --
5 JUDGE ROBINSON: That's not necessarily direct evidence of
6 discriminatory intent. That's just direct evidence of the event, of the
8 MS. KRAVETZ: Well -- but, these are factors that the Chamber
9 took into account when assessing the existence or the -- whether the --
10 JUDGE ROBINSON: You did point to one statement which I accept as
11 direct evidence of discriminatory intent where I think the soldier called
12 her -- referred to her ethnicity. But do you have anything more than
14 MS. KRAVETZ: Well, we know based on the testimonies of the
15 victims what their own ethnicity was, what the ethnicity of the
16 perpetrators was, and we also know the context in which these crimes were
17 committed and all the series of violent acts that they endured, one of
18 which was the sexual assaults during the course of this campaign which
19 was aimed at expelling the population both from Beleg and Pristina. So
20 that evidence is not circumstantial; it's based on the direct testimony
21 of the victims. And so that is the point I'm making.
22 JUDGE AGIUS: Yeah, incidentally arising from what my colleague
23 Judge Robinson has just mentioned, I notice that when you referred to the
24 event indicating that the same soldier who was guarding one of the girls
25 while all this was happening was the same person that had imprisoned
1 them, et cetera, you failed to give us the exact reference. If you could
2 perhaps give us that.
3 MS. KRAVETZ: No problem, Your Honour. The reference is found
4 in -- it's in K20's statement and it's P1279, pages 2 and 4, where the
5 witness herself says when -- in the morning this policeman came to my
6 house and expelled my family, and then she says, I saw the same man
7 guarding the room where I was raped and letting the soldiers in. And
8 this is the direct evidence I'm referring to, Your Honours, and this is
9 the error that we are putting forward that the Chamber made in this case,
10 that it separated the sexual assaults, for example, in the case of K20,
11 from the other persecutory acts that victim endured. In fact, during the
12 course of the same day she was expelled from her home, she was
13 imprisoned, she was separated from -- she and the other women were
14 separated from the men. And the women and girls, a group of them, were
15 taken out that night, sexually assaulted, and the next day the entire
16 village was expelled. And what we're -- and this is direct evidence that
17 comes from the victim herself and she identifies some of the perpetrators
18 that she saw at the scene.
19 JUDGE AGIUS: But that is perhaps indicative, as Judge Robinson
20 rightly pointed out, that is perhaps indicative of the Trial Chamber's
21 frame of mind, namely, that insofar as other incidents are concerned, the
22 inference that they arose out of a persecutorial intent were obvious,
23 while in the case of these sexual assaults, the Trial Chamber possibly --
24 not possibly, obviously thought that there was an equally reasonable
25 inference that could be drawn, namely, that what happened happened
1 independently of any persecutorial -- general persecutorial intent that
2 was prevailing at the time. So this is perhaps territory which is still
3 not sufficiently covered, I suppose.
4 MS. KRAVETZ: Your Honour, but the only reason the Chamber
5 actually gave in paragraph 1796, and I ask Your Honours to look at that
6 paragraph quite carefully, when they're reasoning why they find that the
7 two sexual -- two rapes that were proven did not amount to persecutions
8 is based on the numbers. They do not give another reason. They just
9 say: Given the limited numbers we can't draw that inference. And as I
10 have already stated in my main submissions, this is -- shouldn't have
11 been a consideration because it's contrary to establish case law of this
12 Appeals Chamber. There is no requirement that a certain number of sexual
13 assaults be proven in order for these to amount to sexual assault. And
14 that is the only reason the Chamber gave to treat these crimes
15 differently from the other -- from the other crimes. And we are
16 submitting that that is wrong in law.
17 JUDGE AGIUS: Agreed. If -- assuming for argument's sake that
18 you are right, that that argument shouldn't have been made or raised by
19 the Trial Chamber, it still doesn't answer the question that was put,
20 namely, whether the alternative then is that the only inference therefore
21 that could be reached or arrived at is that there was persecutorial
22 intent. So this is what I'm trying to make you understand, that even if
23 you are right, it doesn't mean that the logical consequence of that is
24 that necessarily then there must have been persecutorial intent. It
25 still has to be proved.
1 MS. KRAVETZ: Well -- and we say, Your Honours, it was proven, it
2 was established because - and I go again back to my point - that it was
3 established when these acts are looked together with the rest of the
4 violent acts that these victims endured which were considered to be
5 persecutory. And I had pointed out previously that regardless of whether
6 there was a different motive behind the sexual assaults, that does not
7 preclude a finding on discriminatory intent.
8 [Appeals Chamber confers]
9 JUDGE AGIUS: Thank you. Please proceed.
10 MS. KRAVETZ: Just to conclude, Your Honours. It is our
11 submission that no reasonable Trial Chamber could have found that
12 there -- these sexual assaults did not amount to persecutions, and we ask
13 Your Honours to correct the Trial Chamber's errors and confirm that they
14 amounted to persecutions and hold General Djordjevic liable for these
15 crimes under JCE III.
16 JUDGE AGIUS: Thank you very much, Ms. Kravetz.
17 Now, Mr. Djordjevic, lead counsel, but more importantly
18 Mr. Djordjevic, appellant. It is customary for the Appeals Chamber to
19 give an opportunity to the appellant to make a personal address to the
20 Appeals Chamber if you so wish. If you do wish to make a personal
21 statement, you can go ahead and you have ten minutes within which to do
22 so. Thank you.
23 THE APPELLANT: [Interpretation] Your Honours, thank you for
24 allowing me to address you. Crimes took place in Kosovo in 1999. I
25 never wanted them, and if I had my time again, I would act very
1 differently. I am deeply sorry for all the victims in Kosovo and the
2 suffering of their families. I apologise unreservedly to the families of
3 all Kosovo Albanian civilians who lost their lives and to those
4 displaced. I truly sympathise with their pain. I hope that the future
5 of the region will be one of peace.
6 I say sorry again today as I apologised during my trial. I hoped
7 to contribute to the process of truth and reconciliation by testifying in
8 my trial for ten days. I wanted to give an open and honest account about
9 my role and about what I knew. Yes, I did learn that crimes had been
10 committed, but only once I was told about the bodies in the Danube river,
11 near Tekija and at Lake Perucac. Yes, I was involved when trucks
12 containing bodies arrived at Batajnica, but I did not know when, where,
13 and how the crimes were committed. I did not oppose the cover-up. I did
14 not take steps to find and prosecute the perpetrators as I should have.
15 I deeply regret this and the fact that I didn't resign immediately. I
16 did not have the strength and power to stand up to the minister. For
17 that, I consider myself responsible. As I said during my trial, I accept
18 that I must pay a price.
19 The reason I did not plead guilty and the reason that I have
20 appealed the trial judgement is because, first, the Prosecution and now
21 the trial judgement say I am responsible for absolutely everything that
22 happened in Kosovo. Honourable Judges, I did play a role and for that I
23 accept that I ought to be punished. But the trial judgement distorts the
24 reality of my role. I beg you to review my role and actions objectively
25 to see that the judgement places too much blame on me.
1 During the war, I was in Belgrade and only on a few occasions I
2 went to Kosovo. I could not issue orders to the head of the MUP staff or
3 its members. It was the minister's staff. They were the focus for the
4 fight against the KLA. I was not a member of the Joint Command in 1999
5 which also operated in Pristina. Neither did I participate in the making
6 of anti-terrorist plans and their implementation, nor did anyone report
7 to me on these activities.
8 Honourable Judges, as assistant minister and chief of the RJB, I
9 could not give any tasks to any other assistant minister who by
10 minister's decision was in charge of an area of the RJB or asked him to
11 submit reports to me. Once these men were appointed assistant ministers,
12 regardless of rank, they were only answerable to the minister exclusively
13 and only received tasks from the minister. The only superior to us as
14 assistant ministers was the minister himself.
15 Yes, I was involved in the deployment of the reserve formation in
16 Podujevo and the redeployment of some members. But my role in the RJB
17 was removed from day-to-day events in Kosovo. At the time, I thought
18 those decisions made sense because of the threats posed by the KLA and
19 the NATO ground invasion. Your Honours, I say to you frankly, I became
20 marginalised as regards Kosovo.
21 I suppose that my being marginalised made me feel that I could
22 turn away. When I learned that bodies had surfaced in Serbia, I didn't
23 take any measures to find those responsible. I should not have acted
24 like that. I realise that it added to the pain of those who had lost
25 their loved ones. For that, I am truly sorry. Thank you.
1 JUDGE AGIUS: Thank you, Mr. Djordjevic.
2 That basically concludes the hearing of the two appeals in this
3 case. On my own behalf and on behalf of my four colleagues, I would like
4 to thank the parties for your absolute co-operation and submissions. I
5 would also like to thank the interpreters who have had a very difficult
6 job and a long day; similarly, the court officers, court staff, our own
7 staff, the IT people, and if I have forgotten anyone, I will say everyone
8 else that was included in the preparation and holding of today's appeal
9 hearing. Thank you for your work and assistance.
10 The Appeals Chamber will issue its judgement in due course. We
11 stand adjourned now. Thank you.
12 --- Whereupon the hearing adjourned at
13 6.11 p.m.