Tribunal Criminal Tribunal for the Former Yugoslavia

Page 180

 1                           Thursday, 15 September 2011

 2                           [Appeals Hearing]

 3                           [Open session]

 4                           [The appellants entered court]

 5                           --- Upon commencing at 10.00 a.m.

 6             JUDGE GUNEY: [Interpretation] Good morning to you all.  The court

 7     is back in session for this appeal case.

 8             Registrar, could you please once again call the case.  Thank you.

 9             THE REGISTRAR:  Good morning, Your Honours, this is case

10     IT-98-32/1-A, the Prosecutor versus Milan Lukic and Sredoje Lukic.

11             JUDGE GUNEY: [Interpretation] Thank you.

12             Mr. Milan and Sredoje Lukic, can you hear this session in a

13     language that you understand?

14             THE APPELLANT M. LUKIC: [Interpretation] Yes, Your Honours, I

15     can, Milan Lukic.

16             JUDGE GUNEY: [Interpretation] Can you hear me?

17             THE APPELLANT S. LUKIC: [Interpretation] Yes, Your Honours.

18             JUDGE GUNEY: [Interpretation] Thank you.

19             I would like to have the appearances for the parties, starting

20     with Milan Lukic's Defence team, and then Sredoje Lukic's Defence team.

21             MR. VISNJIC: [Interpretation] Good morning, Your Honours.

22     Tomislav Visnjic and Dan Ivetic on behalf of Mr. Milan Lukic.

23             MR. CEPIC:  Good morning, Mr. President.  Good morning,

24     Your Honours.  On behalf of the Sredoje Lukic Defence team, myself,

25     Djuro Cepic; appearing with me, Mr. Jens Dieckmann, on my left-hand side;

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 1     and behind us, our legal assistants, Ms. Sabine Schulz and

 2     Mr. Jacob Nuebel.  Thank you.

 3             JUDGE GUNEY: [Interpretation] Could we have the appearances for

 4     the OTP, please.

 5             MR. KREMER:  Good morning, Your Honours.  Peter Kremer,

 6     Matthew Gillett to my left, Matthias Schuster behind us, assisted this

 7     morning again by Colin Nawrot, our Case Manager.

 8             JUDGE GUNEY: [Interpretation] Thank you very much.

 9             This morning is devoted to the submissions of the OTP on appeal.

10     And the representatives of the OTP will have 30 minutes to do so.

11     Sredoje Lukic's counsel will thereafter have 30 minutes to respond.  The

12     representatives of the OTP will have up to 15 minutes in reply.

13     Mr. Milan and Sredoje Lukic will then be asked to take the floor if they

14     wish to do so, and I want to underscore - if they wish to do so.  And

15     this will be a brief statement that should not exceed ten minutes.

16             I would like now to invite the representatives of the OTP to

17     present their submissions on appeal.

18             MR. GILLETT:  Your Honours, as you heard yesterday, the

19     Prosecution largely accepts the cautious and thorough findings set out in

20     the judgement.  However, in two discrete instances, the Trial Chamber

21     erred.

22             First, it failed to convict Sredoje Lukic for aiding and abetting

23     extermination at Pionirska Street.  The Chamber found that this crime was

24     extermination and convicted Milan Lukic on this basis.  The Chamber found

25     that Sredoje Lukic aided and abetted the exact same crime.  However,

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 1     instead of convicting him for aiding and abetting extermination, it

 2     acquitted him on that count and instead convicted him for aiding and

 3     abetting murder.  The Appeals Chamber should remedy this error.

 4             Second, the Chamber erred when it failed to convict Sredoje Lukic

 5     for committing persecution at the Uzamnica camp.  It found that he

 6     viciously beat Muslim detainees at the camp.  It found that he had the

 7     discriminatory intent.  However, instead of convicting him for committing

 8     persecutions, it convicted him merely for aiding and abetting the

 9     persecutions at this camp.  Again, the Appeals Chamber should remedy this

10     error.

11             In these submissions I will primarily focus on the first ground

12     of appeal, on extermination.  I will briefly set out the second ground of

13     appeal, on persecution.  And finally, I will offer some remarks about the

14     implications for sentencing if the Prosecution appeal is granted in whole

15     or in part.

16             Turning to the first ground of appeal.  Your Honours, in light of

17     its factual findings, the Chamber should have convicted Sredoje Lukic for

18     aiding and abetting extermination at Pionirska Street.  As I mentioned,

19     the Chamber held that this massacre, in which 58 Bosnian Muslims were

20     killed, was large scale and was the crime of extermination.  It found

21     that Sredoje Lukic provided substantial practical assistance to

22     Milan Lukic and the other perpetrators of this vicious crime.  It found

23     that Sredoje Lukic knew that the victims would be killed and that he knew

24     his participation contributed to their murder.  When you bear in mind its

25     finding that this was a large group of victims, this shows he was aware

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 1     he was contributing to murder on a large scale, and this satisfies the

 2     mental element for aiding and abetting extermination.

 3             Although these findings were made by majority, this does not

 4     invalidate them.  Article 23(2) of the Tribunal's Statute clearly allows

 5     Chambers to work by majority.  So factually, the judgement establishes

 6     that the killings at Pionirska Street were extermination and that

 7     Sredoje Lukic aided and abetted these exact same killings.

 8             At this stage of proceedings, it's important to focus on the key

 9     issue.  And the main question is:  Was the killing of 58 people

10     sufficiently large scale to constitute extermination?

11             In acquitting Sredoje Lukic on Count 8, the extermination count,

12     the Chamber explained that this was due to dissents on different issues

13     by two of the Judges.  You'll recall that Judge Van Den Wyngaert

14     dissented on the large-scale element for extermination and Judge Robinson

15     dissented on whether Sredoje Lukic's conduct met the test for aiding and

16     abetting.

17             However, now that the matter is before the Appeals Chamber, the

18     mechanics of how Judges dissent at trial is not the dispositive issue.

19     Indeed, that question does not need to be addressed for Your Honours to

20     resolve the Prosecution appeal.  Instead, the key determination is

21     whether this massacre was large scale.  And this is because if it was

22     large-scale, as the Trial Chamber found in its judgement, then it was

23     extermination, and that is the crime that Sredoje Lukic aided and

24     abetted, and that is the crime for which he should be convicted.

25             Looking to the element of large-scale for extermination, the

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 1     Trial Chamber's finding in the judgement is well supported by the guiding

 2     law and is entirely reasonable in the circumstances of this case.  First,

 3     on a simple numerical basis, the Chamber's finding accords with the

 4     guiding jurisprudence.  As my colleague outlined yesterday, the number of

 5     victims killed at Pionirska Street is approximately equal to the

 6     68 victims killed in the incident at Brisevo, which the Appeals Chamber

 7     recognised as independently qualifying as extermination in the

 8     Brdjanin appeal judgement.

 9             It's important to note that the Brisevo incident was

10     independently characterised as extermination.  In the relevant passage of

11     paragraph 472, the Appeals Chamber did not refer to the many other

12     smaller incidents that were also at issue in Brdjanin.  So it's clear

13     that for the five specific incidents that it singled out, including the

14     68 victims at Brisevo, it was holding that they specifically,

15     independently qualified as extermination.  This is clear when you look

16     at, in particular, footnote 997 of the appeal judgement and you compare

17     it with para 476 of the trial judgement, which sets out the other smaller

18     incidents.

19             Other judgements of international tribunals have regularly found

20     that the killing of over 50 people is sufficiently large-scale.  For

21     example, the killing of around 60 victims was characterised as

22     extermination by the Stakic Trial Chamber, and this is at paragraph 653

23     of the trial judgement.  This was undisturbed on appeal.

24             The Krajisnik Trial Chamber found that the Pionirska massacre

25     constituted extermination, that's at paragraphs 699 and 720, albeit it

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 1     was referring to a total of 66 victims.

 2             At the Special Court for Sierra Leone, similar-scale killings

 3     were found to be extermination in the Sesay trial judgement.  These

 4     incidents include the killing of 63 victims, as discussed at

 5     paragraph 1107; between 30 and 40 victims, as discussed at para 1271; and

 6     64 victims, as discussed at paragraph 1449.  Again, these findings were

 7     undisturbed on appeal.

 8             After the briefing period in this case, the ICTR Trial Chamber in

 9     the case of Setako found at paragraph 481 that the killing of between

10     30 and 40 victims at a camp independently constituted extermination.

11             So when you look at the guiding jurisprudence, you can see that

12     on a straight numerical basis the Trial Chamber's finding is entirely

13     consistent with the comparable and relevant jurisprudence.

14             Moreover, the factual circumstances in which the Pionirska

15     massacre was committed further confirm that it was properly found to be

16     large-scale.  The perpetrators of this crime clearly intended to

17     eradicate a large number of people.  Milan Lukic and the other

18     perpetrators, assisted by Sredoje Lukic, killed the Muslim women,

19     children, and elderly people in a callous and premeditated fashion.  The

20     execution house had been prepared with an accelerant, and this was to

21     ensure that as many victims as possible would perish in the inferno.

22     After they set the house on fire, the perpetrators stood around and shot

23     with weapons at victims who attempted to escape.  Clearly, they intended

24     to kill the entire large group of victims and not just a few individuals

25     within that group.

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 1             In her dissent on the large-scale element, Judge Van Den Wyngaert

 2     argues that extermination should be reserved for killings of an extremely

 3     large scale.  However, her approach is premised on an erroneous view of

 4     the law.

 5             At the outset of her dissent, she states, and I quote:

 6             "... the crime of extermination almost necessarily must be of

 7     such a scale ... as to be prohibitive to identifying, naming, or counting

 8     the victims with specificity ..."

 9             That is incorrect.  Just because the victims may be identified or

10     counted does not preclude a conviction for extermination.

11             In support of this proposition, Judge Van Den Wyngaert cited

12     exclusively to the Ntakirutimana appeal judgement.  However, she

13     misinterpreted the relevant passage.  At para 521 of that judgement, the

14     Appeals Chamber clarified that it is unnecessary to identify specific

15     victims in order to prove the crime of extermination.  However, that does

16     not mean that if the victims are identified then the crime cannot be

17     extermination.  The relevant passage simply cannot be read in that

18     manner.

19             Moreover, if Judge Van Den Wyngaert's approach were accepted, it

20     could lead to absurd results.  Taken to its logical conclusion, it would

21     mean that a mass killing could not be characterised as extermination so

22     long as the perpetrator kept a list of the victims or the victims could

23     otherwise be identified.  The Appeals Chamber should not accept such a

24     restrictive approach.

25             Judge Van Den Wyngaert insists that an extremely high threshold

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 1     should be required in order to reflect the gravity of the crime.

 2     However, the current jurisprudence adequately deals with this issue.

 3     Where the killing involves an extremely large number of victims, far

 4     exceeding the threshold required for extermination, this can be taken

 5     into account in sentencing as an aggravating factor.  That's set out in

 6     the Ndindabahizi appeal judgement, at paragraph 135.

 7             Against this backdrop, the Trial Chamber's finding that the

 8     Pionirska Street massacre was extermination is well-founded in the

 9     jurisprudence and is entirely reasonable.  Given that Sredoje Lukic aided

10     and abetted this exact same crime, his acquittal as an outcome of the

11     trial judgement is not only wrong in law but it conflicts with the

12     findings set out in that same judgement.  The Appeals Chamber should

13     remedy this error and find that Sredoje Lukic contributed to and was

14     aware that he was contributing to murder on a large scale.  Accordingly,

15     it should convict him of aiding and abetting extermination.

16             Turning to the Prosecution's second ground of appeal.

17     Your Honours, during 1992 and 1993, Sredoje Lukic viciously beat Muslim

18     detainees at the Uzamnica camp.  He had the discriminatory intent.  That

19     was found in the judgement.  Consequently, he should have been convicted

20     for committing persecution against those detainees.  At paragraph 990 of

21     the judgement, the Chamber found that it was:

22             "... satisfied that Sredoje Lukic repeatedly and severely beat

23     detainees ... in the Uzamnica camp ..."

24             At paragraph 1039, the Chamber found that Sredoje Lukic had the

25     discriminatory intent required for persecution.  In light of these

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 1     findings, the Chamber should have put them together and found that he

 2     committed, rather than merely aided and abetted, persecutions at the

 3     Uzamnica camp.  The Chamber's failure to do so was a clear error.  It

 4     provided no reason whatsoever of convicting him only of aiding and

 5     abetting.  Moreover, for the comparable charges of cruel treatment and

 6     inhumane acts, on the same factual basis it did convict him for

 7     committing.  So this is a clear error.  Again, the Appeals Chamber should

 8     exercise its corrective function and set the record straight.

 9             Your Honours, if the Prosecution's appeal is granted, in whole or

10     in part, the Appeals Chamber should increase Sredoje Lukic's sentence.

11     Although the factual basis of his liability would remain the same, the

12     legal characterisation of his conduct would be more serious.  In relation

13     to Count 1, he would be convicted of aiding and abetting extermination

14     rather than murder.  Extermination is a more serious crime because of the

15     additional large-scale element.  In relation to ground 2, he would be

16     convicted of committing, rather than aiding and abetting, persecution,

17     and committing is a more serious mode of liability in general than aiding

18     and abetting.  This justifies a higher sentence.

19             The Appeals Chamber of the ICTY and the ICTR has recognised that

20     a more serious legal characterisation justifies an increase in sentence

21     even where the factual basis of the conviction remains the same.  This

22     can be found, for example, in the Semanza appeal judgement at the ICTR at

23     paragraphs 355, 364, and 388, that's when these paragraphs are read

24     together as a whole.

25             In conclusion, Your Honours, I would repeat that although the

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 1     Chamber's cautious and thorough findings are well-founded and reasonable,

 2     in these two discrete instances it did err.  The Chamber's errors result

 3     in a contradictory outcome, where all the elements of the crimes and the

 4     modes of liability have been proved, but the appropriate convictions have

 5     not been entered.  The Appeals Chamber should remedy these errors and

 6     correctly convict Sredoje Lukic for aiding and abetting extermination at

 7     Pionirska Street and for committing persecution at the Uzamnica camp.

 8             If Your Honours have no questions, that concludes my primary

 9     submission.

10             JUDGE GUNEY: [Interpretation] Thank you very much.  I now invite

11     the counsels of Sredoje Lukic to present their submissions in response.

12             You have the floor.

13             MR. DIECKMANN:  Good morning, Your Honours.  Thank you very much.

14             Your Honours, the Defence of Sredoje Lukic submits that both

15     Prosecution grounds of appeal as stated in the Prosecution's appeal brief

16     and following -- followed by submissions today are entirely without merit

17     and should be treated as such in the instant appellate proceedings.  The

18     first issue upon which Prosecution premise its appeal is that the

19     Trial Chamber erred in law by failing to convict Sredoje Lukic for aiding

20     and abetting the extermination of 59 Muslim civilians at

21     Pionirska Street.  This issue will be addressed first.

22             Secondly, the Defence will present oral submissions on the first

23     question of Appeals Chamber's order from 6th September, 2011.  And

24     finally, the Defence is prepared to address the second ground of the

25     Prosecution's appeal, followed by short remarks regarding sentencing.

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 1             Your Honours, with regard to extermination, the Trial Chamber

 2     acquitted Sredoje Lukic of having committed or aided and abetted in the

 3     commission of the crime of extermination.  We submit that this finding

 4     was and remains in full accordance with Article 23(2) of the Statute as

 5     well as with Rule 92 ter (C) of the Rules of Procedure and Evidence.

 6             Your Honours, the Trial Chamber Judges clearly outlined and

 7     explained the reasoning of the majority finding in para 953 of the trial

 8     judgement, dealing with Count 8 of the indictment, that is, the

 9     Pionirska Street incident.  I may quote:

10             "The Trial Chamber recalls that the factual findings concerning

11     Sredoje Lukic's participation in Pionirska Street incidents were reached

12     by majority, Judge Robinson dissenting.  As Judge Van Den Wyngaert's

13     dissent concerning Count 8 relates to the legal qualification of the

14     crime as extermination, there is no majority for a conviction of

15     Sredoje Lukic for extermination.  Consequently, Trial Chamber acquits

16     Sredoje Lukic of having committed or aided and abetted in the commission

17     of the crime of extermination."

18             Your Honours, this finding is a logical and lawful consequence of

19     the positions of the three Judges.  Only one Judge of three voted in the

20     positive on the two necessary requirements for a conviction of aiding and

21     abetting extermination.  And instead, Prosecution's submissions today,

22     the mechanism of judgement finding is indeed a matter in this appeal.

23             Judge David considered the act and conduct of Sredoje Lukic as a

24     practical assistant, having a substantial effect on the commission of the

25     crime.  In addition, Judge David is of the opinion that Sredoje Lukic --

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 1             THE INTERPRETER:  Please slow down.

 2             MR. DIECKMANN:  I will try.  Thank you.

 3             -- that Sredoje Lukic knew that his acts and conduct contributed

 4     to the criminal act.

 5             Furthermore, Judge David found that the killing of the 59 persons

 6     constitutes extermination.  Therefore, the vote of Judge David was that

 7     Sredoje Lukic aided and abetted crime of extermination.

 8             In sharp contrast, Judge Van Den Wyngaert held that the killing

 9     of the 59 --

10             JUDGE GUNEY: [Interpretation] Kindly slow down, please, sir, for

11     the sake of the interpreters.

12             MR. DIECKMANN:  I'll try.  Thank you very much.  I'm sorry.

13             In sharp contrast, Judge Van Den Wyngaert held that the killing

14     of the 59 Muslim civilians does legally not qualify as extermination.

15     Therefore, her vote was that Sredoje Lukic is to be acquitted of the

16     crime of extermination, even she supported a conviction of Sredoje Lukic

17     for aiding and abetting murder for the same incident.

18             Judge Robinson held, on the one hand, that there is no credible

19     evidence showing that Sredoje Lukic rendered practical assistance,

20     encouragement, or moral support which had a substantial effect on the

21     perpetration of the crimes of murder.  On the other hand, Judge Robinson

22     held that killing of the 59 persons fulfils legal requirement of

23     extermination.  Consequently, Judge Robinson vote to acquit Sredoje Lukic

24     of extermination.

25             Your Honours, this reasoning, implying diverging majorities is in

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 1     itself clear, it's concise and logical.  A vote of a Trial Chamber Judge

 2     only counts as a yes in favour of a conviction if the Judge is satisfied

 3     that all factual and legal requirements are fulfilled for the individual

 4     accused.  Therefore, we have here just one yes and two no votes with

 5     regard to a conviction of Sredoje Lukic for aiding and abetting

 6     extermination.

 7             Your Honours, from para 5, 6, and 7 of Prosecution's appeal

 8     brief, as well as following their submissions today, it can be easily

 9     inferred that the Prosecution is in fact of the view that the legal

10     findings for Milan Lukic in relation to the numerical threshold of crime

11     of extermination should also have been binding on the Trial Chamber when

12     assessing Sredoje Lukic's individual criminal responsibility.  Taking

13     into account Rule 87(B) of the Rules of Procedure and Evidence, the

14     Prosecution's view is quite astonishing.  Rule 87(B) provides, in the

15     second sentence, that:

16             "If two or more accused are tried together under Rule 48,

17     separate findings should be made as to each accused."

18             This is exactly what Trial Chamber did when acquitting

19     Sredoje Lukic for aiding and abetting extermination.  It is respectfully

20     submitted that Prosecution failed to present a sufficient legal

21     foundation for this ground of appeals in the written brief and in their

22     submission today.

23             In order to substantiate this ground of appeal, Prosecution

24     solely referred to Prlic appeals decision on evidence, para 27, where the

25     quote reads as follows:

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 1             "Whenever a Chamber renders a decision in accordance with the

 2     Statute, the decision is that of the Chamber and not merely a bundle of

 3     opinions of individual Judges."

 4             In footnote 22 of Prosecution's appeal brief, Prosecution itself

 5     indeed underlines that the subject matter of this Prlic appeals decision

 6     "differs from the issues at hand."  Nevertheless, and without any

 7     explanation or justification, the Prosecution simply asserts that the

 8     reasoning in placing such reliance upon Prlic appeals decision was due to

 9     the case being "applicable in analogy" to the instant proceeding in the

10     Lukic case.

11             In addendum to its written submissions and in its response to

12     Prosecution's appeal brief, the Defence of Sredoje Lukic submits today

13     that the Prosecution did not show in its appeals submissions that a

14     comparable procedural situation exists allowing an application in

15     analogy.  In fact, the Prosecution fails to mention that the essence of

16     para 27 of Prlic decision is that an appellant cannot claim a violation

17     of his fair trial rights on the fact that one Judge dissented on the

18     non-admission of certain evidence.  The appellant in the Prlic appeals

19     proceedings, an interlocutor appeal, claimed that in his case the

20     majority -- the minority Judge shall be entitled to rely upon the

21     non-admitted evidence when Trial Chamber has finally to render its trial

22     judgement.

23             The Appeals Chamber, in para 27 of Prlic decision, further

24     stated - and the Prosecution left this part of the quotation in

25     footnote 22, I may quote:

Page 194

 1             "In this case, the Trial Chamber decided, albeit by majority, not

 2     to admit certain documents tendered into evidence.  The effect of this

 3     decision is as such that these documents do not form part of the record.

 4     Several venues are open for the appellant to challenge this decision,

 5     including motions for reconsideration and a review interlocutory appeal

 6     for appeal on the merits.  However, if such challenges fail, the parties

 7     and Judges are bound to refer themselves to the record of the case."

 8             This is how situation in Prlic differs from our case, and we

 9     refer to Rule 87(A) of the Rules, which provides as follows:

10             "When both parties have completed their presentation of the case,

11     the Presiding Judge shall declare the hearing closed and Trial Chamber

12     shall deliberate in private."

13             In the Lukic case, there is simply no venue open for Defence to

14     challenge a Chamber's finding once Judges are in the stage of

15     deliberations.  There is no possibility anymore to issue motions for

16     reconsideration or review or interlocutor appeal --

17             THE INTERPRETER:  Please slow down.

18             MR. DIECKMANN:  I'm sorry.

19             There is one judgement based on the admitted trial evidence.  As

20     a result, the situation in Prlic cannot be compared with our case.

21             Your Honours, with regard to further Defence submissions in

22     attesting to the erroneous raising of this issue by Prosecution in its

23     first ground of appeal, Defence respectfully refers to our written

24     response to Prosecution's appeal, paras 22 through 30.

25             Your Honours, with your leave, with regard to the first question

Page 195

 1     of Appeals Chamber's order from 6th September, 2011, as well as

 2     addressing the first question of Judge Liu from yesterday, the Defence of

 3     Sredoje Lukic respectfully submits the following.

 4             ICTY jurisprudence has established that extermination requires

 5     the same physical elements as murder but with additional requirement that

 6     the killings occur on a massive scale.  In Stakic, the Appeals Chamber

 7     ruled:

 8             "That the actus reus of extermination is the act of killing on a

 9     large scale.  The actus reus also includes subjecting a widespread number

10     of people or systematically subjecting a number of people's conditions of

11     living that would inevitably lead to death."

12             Para 259 of appeals judgement.

13             The same Appeals Chamber judgement was said:

14             "The expressions on a large scale or large number do not,

15     however, suggest a numerical minimum."

16             Para 260.

17             The Trial Chamber in Lukic referred to several trial judgements

18     in the -- in its findings.  First they referred to Krajisnik, the

19     Trial Chamber judgement in Krajisnik, where Chamber indeed considered,

20     inter alia, the Pionirska Street incident and found that the killings

21     during this incident individually fulfilled the requisite level of

22     massiveness.  However, also the Trial Chamber in Krajisnik has held that

23     several incidents individually were considered to be massive.  The

24     Trial Chamber relied on several incidents as a whole, para 721.

25             Finally, Krajisnik was found guilty of extermination for the

Page 196

 1     death of approximately 3.000 people.  It should be noted that Krajisnik

 2     has been finally acquitted, and so Appeals Chamber, due to our

 3     interpretation, did not confirm these findings.  He was acquitted for

 4     committing extermination since the crime was outside the scope of the JCE

 5     in which Krajisnik had participated.

 6             In addition, the Trial Chamber in Stakic also stated that several

 7     incidents of killings individually met the threshold of massiveness, but

 8     the Appeals Chamber in Stakic relied on an entire series of incidents in

 9     which a total of 1.500 individuals were killed.

10             And, indeed, in Brdjanin, Appeals Chamber apparently acknowledged

11     that five incidents of mass killings, each of which resulted in the death

12     of between 68 or 300 victims, were of such scale as to meet the threshold

13     of massiveness.  But in any case, ultimately, in para 472 of Brdjanin,

14     Brdjanin was found guilty of extermination for the death of 1.669 people.

15             In any event, it should be emphasized that in finding --

16             JUDGE GUNEY: [Interpretation] Kindly slow down to allow the

17     interpreters to do their work properly and to enable us to collect our

18     thoughts.  Thank you.

19             MR. DIECKMANN:  I apologise, Your Honour.  Thank you very much.

20             In any event, it should be emphasized that in finding the

21     respective accused guilty of extermination, the three Chambers in

22     Krajisnik, Stakic, and Brdjanin finally aggregated all the indicted

23     killings that occurred during the time-frame of the respective

24     indictments.  All of them did not have to decide extermination fulfilled

25     by a single incident.

Page 197

 1             In the Blagojevic case, the finding of Trial Chamber refers to a

 2     single murder operation - this is the wording of the Trial Chamber - but

 3     this led to the death of more than 7.000 people.  Blagojevic

 4     Trial Chamber judgement para 577, whereby clearly fulfilling the

 5     large-scale requirement.

 6             It's our submission that this substantial difference between the

 7     Lukic case and this re-judgement has not been considered appropriately by

 8     the Trial Chamber in the Lukic case.

 9             With regard to the additional criterions, the Trial Chamber

10     placed particular emphasis, some remarks.  First of all, the Defence

11     submits that the vulnerability of victims has little, if any, bearing on

12     the massiveness of the crimes, and it does not at all affect the key

13     requirement of scale and should therefore totally be left out of account.

14             Regarding planning and preparation, it's clear that the

15     Appeals Chamber jurisprudence unequivocally rejected the suggestion that

16     the plan or policy is an element of the crime of extermination, referring

17     to Krstic Appeals Chamber judgement para 225.

18             And all the references given by the Prosecution today also

19     referred to series of incidents.

20             With regard -- with regard to the issue of low population

21     density, we concur with Judge Van Den Wyngaert and her position in her

22     dissenting opinion, Lukic Trial Chamber judgement para 1119.

23     Your Honours, a rather restrictive approach, as favoured and supported by

24     Judge Van Den Wyngaert, would enable Chambers to distinguish more clearly

25     between extermination and murder.  And we refer to

Page 198

 1     Judge Van Den Wyngaert's position on para 1120 in the Lukic trial

 2     judgement.

 3             The Prosecution left Appeals Chamber without answer to the

 4     question how to differ multiple murder cases from extermination cases

 5     from a low scale.  And we concur with Judge Van Den Wyngaert in her

 6     dissenting opinion, telling:

 7             "Indeed I'm concerned that if we find that mass killings of

 8     increasingly low scale to be extermination, then this inadvertently

 9     suggests that the charge of murder is not significant enough to convey

10     the seriousness of crimes."

11                           [Defence counsel confer]

12             MR. DIECKMANN:  Your Honours, with regard to Prosecution's second

13     ground of appeal, we submit it has to be dismissed entirely.  The

14     Prosecution premised its second ground of appeal on the fact that

15     Trial Chamber erred in law by failing to convict Sredoje Lukic for

16     committing persecutions in relation to the beatings at Uzamnica camp.

17     Trial Chamber found Sredoje Lukic guilty of aiding and abetting

18     persecutions in relating to Uzamnica camp beatings.

19             First and foremost, it is in a way surprising that Prosecution

20     requests for a conviction of Sredoje Lukic for committing persecution

21     with regard to the beatings in the Uzamnica camp in the Prosecution's

22     appeal, but stating in its Prosecution response to Sredoje Lukic appeal

23     brief on para 186 through 188 that Sredoje Lukic fulfilled the necessary

24     actus reus and mens rea for aiding and abetting persecutions with regard

25     to Uzamnica beatings.  So from the first starting point, the position of

Page 199

 1     Prosecution is contradictory and inconsistent.

 2             Secondly, Your Honours, the Defence of Sredoje Lukic reinforce

 3     its position that Trial Chamber erred in fact and/or in law convicting

 4     him for the crimes in Uzamnica camp at all.  This is in fact the case of

 5     Sredoje Lukic with regard to the Uzamnica camp beatings.  The Defence of

 6     Sredoje Lukic avers that no reasonable Trial Chamber could have found

 7     that Sredoje Lukic was involved in any criminal acts in Uzamnica camp.

 8     In consequence, the Defence submit that the admitted evidence does not

 9     support a conviction of Sredoje Lukic for persecutions at Uzamnica at

10     all.

11             Your Honours, in its Defence appeal brief, the Defence had

12     exhaustively elaborated in subground 8(A) that no reasonable

13     Trial Chamber would have found that evidence by the four Prosecution

14     witnesses for Uzamnica camp was credible with regard to the participation

15     of Sredoje Lukic in Uzamnica camp incident.  The Defence refers --

16             JUDGE GUNEY: [Interpretation] You have five minutes left before

17     concluding.  Thank you.

18             MR. DIECKMANN:  Thank you, Your Honours.

19             The Defence refers to para 238 through 242 of its appeal brief

20     with regard to Nurko Dervisevic, para 243 through 248 with regard to

21     Islam Kustura, para 249 through 253 with regard to Adem Berberovic.  And

22     secondly, the Defence submitted under subground 8(B) the Trial Chamber

23     erred in law by applying an erroneous and incomprehensible method of

24     evidentiary reasoning and decision-making.

25             Your Honours, yesterday we heard about the standards established

Page 200

 1     by the ICTY Appeals Chamber in the Kupreskic appeal judgement.  The

 2     Defence of Sredoje Lukic urged you to apply these standards to

 3     Trial Chamber judgement with regard to Sredoje Lukic's conviction for

 4     participating in beatings at Uzamnica camp, including persecution.

 5     Accordingly, Sredoje Lukic had to be acquitted for all related charges,

 6     including aiding and abetting persecutions, and in consequence also the

 7     second ground of Prosecution's appeal has to be dismissed.

 8             The Defence submits that the Trial Chamber did neither proceed

 9     with extreme caution when assessing conflicting witness identifications

10     made under established difficult circumstances, nor did the Chamber

11     provide a reasoned opinion carefully articulating the factors it relied

12     upon in support of the identifications.

13             Regarding sentencing, Your Honours, we refer to ground of

14     appeal 15 of Sredoje Lukic appeal brief para 310 to 341.  As a concluding

15     remark, Your Honours, by and through his counsel, Sredoje Lukic

16     respectfully submits that when considered, both in isolation and in

17     aggregate, the Prosecution has failed completely to proffer any

18     meritorious grounds for appeal to be appropriately considered by the

19     Appeals Chamber.  Sredoje Lukic respectfully requests that the

20     Appeals Chamber reflects that accurately in dismissing the entire

21     Prosecution's appeal.

22             Thank you very much, Your Honours.  This concludes my

23     submissions.

24             JUDGE GUNEY: [Microphone not activated]

25             THE INTERPRETER:  Microphone, Your Honour, please.

Page 201

 1             JUDGE GUNEY: [Interpretation] I would now like to ask the

 2     Prosecution to respond.  You have ten minutes.

 3             MR. GILLETT:  Thank you, Your Honour.

 4             Your Honours, Sredoje Lukic has failed to undermine the

 5     Prosecution's arguments in support of both its appeal grounds.  Instead,

 6     he has concentrated on issues in particular in relation to the first

 7     ground of appeal on extermination at Pionirska Street, issues which are

 8     not essential to the determination of the appeal at this stage of

 9     proceedings.  He has repeated his argument that the Prosecution approach

10     would essentially force Judges to vote against their will.  However, this

11     is not the dispositive issue.  Rather, the issue is whether this crime

12     was large-scale.  For the reasons I've already mentioned, it was properly

13     characterised as such.

14             My learned friend has said that the determination in the

15     judgement that the Pionirska Street massacre was large-scale in relation

16     to Milan Lukic should not apply to Sredoje Lukic.  We entirely disagree

17     with this position.  These were not two separate killings.  This was the

18     same event.  This was the same crime.  In the judgement, the majority

19     properly found that this was extermination.  Sredoje Lukic aided and

20     abetted his cousin Milan and the other perpetrators in this exact same

21     crime.

22             Your Honours should not add your seal of approval to an outcome

23     where all the elements of the crime and the mode of liability are proved

24     but a conviction is not entered.  You should correct this error.

25             Now, my learned friend for the Defence has mentioned the

Page 202

 1     contextual factors that the Trial Chamber took into account.  He mentions

 2     in particular the population density issue.  I would reiterate at the

 3     outset that the Chamber's finding is in line with the guiding

 4     jurisprudence on a basic numerical basis.  The judgements that I've

 5     mentioned speak for themselves.  However, the contextual factors indeed

 6     provide further confirmation that the Pionirska Street incident was

 7     properly characterised as large-scale.  The circumstances show that this

 8     was a single mass killing event and that the perpetrators intended to

 9     kill all the victims.  Taking into account the population density of the

10     victims' home village was entirely reasonable.  For the victims and their

11     families, the effect of this killing was massive.  The vast majority of

12     the victims were members of the Kurspahic family from Koritnik, a small

13     village with a population of around 60 inhabitants, maybe slightly more.

14     This village was decimated by this mass killing.  It was a devastating

15     event.  In the circumstances of this case, this was an appropriate factor

16     to take into account.

17             Sredoje Lukic knew Hasib Kurspahic and he knew the Kurspahic

18     family.  He would go to their house before the event and so he knew of

19     the locality where these victims came from.  Moreover, as he helped herd

20     these victims into the Omeragic house, which had been prepared for their

21     execution, he saw them walking past him.  He knew the size of this group

22     and how many victims were intended to perish in this fire.  Nonetheless,

23     he continued to participate in this crime.

24             Now, when you assess this key element of large scale, I would

25     suggest that you should ask yourself the following question:  If you read

Page 203

 1     in the newspaper that there had been a killing of 58 people and you

 2     wanted to describe this to your neighbour, would you call this a

 3     large-scale killing?  Your Honours, the Chamber looked at the relevant

 4     jurisprudence, it looked at the relevant circumstances, and in the body

 5     of the judgement it reached the proper conclusion that this was killing

 6     on a large scale.

 7             On ground two, I won't respond to the substance, as that has

 8     already been addressed by my colleague Mr. Schuster yesterday.  I would

 9     simply clarify that in the Prosecution response to Sredoje Lukic's appeal

10     we were defending the conviction as entered in the judgement.  This is an

11     entirely separate matter from our appeal here today, which seeks to

12     remedy what we say is an error in the judgement.  So there is no

13     inconsistency there.

14             Your Honour, these two errors emerging from the judgement as a

15     whole end in an incoherent result where all the elements of the crimes

16     and all the elements of the modes of liability for the respective

17     offences have been proved.  The convictions that were appropriate,

18     however, were not entered.  Your Honours should correct these errors and

19     ensure a proper outcome at the end of these proceedings.

20             Unless you have any further questions, that concludes the

21     submissions for the Prosecution.

22                           [Appeals Chamber confers]

23             JUDGE GUNEY: [Interpretation] Thank you very much.

24             I would now invite the appellants to take the floor if they so

25     wish.

Page 204

 1             Mr. Milan Lukic, would you like to speak?

 2             THE APPELLANT M. LUKIC: [Interpretation] Yes, I do, as a matter

 3     of course.

 4             JUDGE GUNEY: [Interpretation] Mr. Milan Lukic, I would like first

 5     to remind you that this is a public hearing and that the witness

 6     protection measures still stand.  You're therefore strictly forbidden to

 7     quote confidential information or do anything as to reveal the identity

 8     of protected witnesses.  Have I been understood, Mr. Lukic?

 9             I remind you that you have ten minutes.  You have the floor.

10             THE APPELLANT M. LUKIC: [Interpretation] I have understood you

11     fully.  Should I stand up or -- so that you can see me all?

12             JUDGE GUNEY: [Interpretation] As you like.

13             THE APPELLANT M. LUKIC: [Interpretation] I wish you to see me

14     all.

15             Your Honours, I want you and the public as a whole to know that

16     before you are sitting innocent persons, Milan Lukic and Sredoje Lukic,

17     convicted by the first-instance judgement for the crime we have not

18     committed.  Gentlemen, the Milan Lukic who is addressing you now is not a

19     murderer or a fascist.  I will explain this in a short time who I am and

20     what function I performed during the war in Visegrad.

21             As I do not have sufficient time, I am restricted in terms of

22     time, and I have written what I do not have enough time to say in my

23     book, which was published both in English and in Serbian and with a

24     circulation of 20.000 copies.

25             Milan Lukic fought in a chivalrous manner and acted likewise

Page 205

 1     during the war and peace and now at the Detention Unit in Hague.  That

 2     means in a humane and honourable manner.  This was how I was born.  I

 3     will remain like that until the day I die.  Please look at my face and my

 4     eyes, Your Honours.  Do I look like a monster, like someone who would be

 5     capable of killing children, women, the elderly, or anyone?

 6             Gentlemen, what can I do when I'm a Serb?  I was born a Serb and

 7     I cannot do anything about it.  As you have seen my face and my eyes,

 8     that is important.  My eyes and face should bring liberty to me and also

 9     to the innocent man next to me, Sredoje Lukic.  If you stick to law and

10     justice, Your Honours, I trust you, Your Honour, and I believe that we

11     will be acquitted.  The ICTY Prosecution on the basis of honourable

12     Muslim witnesses described this Milan Lukic as having blue eyes, a mole

13     above my lip, tattoos on my arms.  On the basis of this description and

14     the evidence of OTP witnesses, the Prosecution issued an Interpol warrant

15     with number 1D22-381.  That's the Serbian version.  The English version

16     is number 1D22-0494.  The number of the warrant in Argentina was

17     AD 37/9-2001.  However, gentlemen, I do not have blue eyes or a mole

18     above my lip.  As for tattoos, I have never had them nor would I ever put

19     them on my body.

20             Are there any tattoos at the ICTY Detention Unit?  American

21     expert Jenkins established and confirmed that there are no tattoos.  This

22     American expert Jenkins spent 30 years serving the US police as an

23     expert.  He told my Defence, my attorneys, and myself that after two

24     hours I would be set free in the United States, and I have been sitting

25     here for six years though I'm innocent.

Page 206

 1             Your Honours, yesterday the Presiding Judge mentioned that I used

 2     to live in Pionirska Street in Visegrad together with my parents.  I

 3     claim that I have never ever in my life lived in Pionirska Street.  My

 4     parents, until December 1992, lived in their village of Rujiste, which is

 5     20 kilometres away from Visegrad.  In December 1992, the entire village

 6     moved out.  People were brought to the town, accommodated.  And once the

 7     war ended, they were sent back because that was the first line of the

 8     front.  That is the whole truth.

 9             Secondly, the Prosecution charged me for being the head of the

10     White Eagles, a paramilitary formation, me, Milan Lukic.  The witnesses

11     have been telling us that the White Eagles committed crimes in Visegrad,

12     that they are a gang, that they committed crimes in Visegrad, and I

13     agree.  But, gentlemen, I, Milan Lukic, have nothing to do with the

14     White Eagles or any other paramilitaries in Visegrad, because when the

15     war broke out in Visegrad and when various gangs were active in the town,

16     I was still in Switzerland, in Zurich, where I worked as a barman.  I was

17     a mere mortal.  It was only on the 6th of May, 1992, that I came to

18     Visegrad to pull out my parents from their village, from hell, because I

19     had an apartment in Belgrade.  That was when I was deployed as a member

20     of reserve policemen, as a body-guard of the police commander

21     Dragan Tomic.  This honourable man used to be my teacher in high school.

22     He knew who I was and what I was like, that I was devoted and honourable,

23     and this is why he took me to have me next to him.

24             I stayed with Tomic up until the 19th of July in the police, the

25     reserve forces, until he got killed.  Mr. Dragan Tomic lost his life, and

Page 207

 1     my other two friends Vidoje and Mladen Andric who were also his

 2     body-guards.  While escorting Mr. Tomic, I also discharged other

 3     duties --

 4             JUDGE GUNEY: [Interpretation] Mr. Milan Lukic, think of

 5     concluding, please.

 6             THE APPELLANT M. LUKIC: [Interpretation] Has it already been ten

 7     minutes?  I will conclude, certainly.  Thank you.

 8             While a member of the reserve police force, I discharged other

 9     duties just like other 200 policemen.  I fought in the woods.  I never

10     mistreated anyone, nor did my colleagues.  In early August 1992, I was

11     deployed as a private in the Army of Republika Srpska.  On the basis of

12     important facts which I just mentioned, I should be acquitted and the

13     trial should be repeated.  The OTP should have checked, before charging

14     innocent people, whether this was the truth or whether it was fabricated.

15             Your Honours, it is known who ruled, who was obeyed.  There was

16     the commander of the Crisis Staff, the chief of police in Visegrad; it

17     turns out that a reserve policeman and a professional policeman were

18     superior to their own superiors.  That could not happen anywhere but

19     here.  So Sredoje and myself, as innocent men, should be held accountable

20     for somebody else's crimes?  In order to avoid shame at ICTY because the

21     OTP fabricated the charges, if the investigators acquitted those who were

22     the real masters of life and death in Visegrad, they should be nominated

23     for the Nobel Peace Prize, but I do not wish to be held accountable for

24     what I did not do.  I do not wish to serve prison sentence for something

25     I haven't done.

Page 208

 1             Your Honours, we all know that each man in the world has his own

 2     price.  Why shouldn't one of the ICTY investigators have his price in

 3     this case?  You may conclude what you think.  I don't know what else to

 4     conclude, because the human mind cannot grasp all the lies the OTP used.

 5             In order not to waste our time about OTP witnesses, I will tell

 6     you who are the persons who provided evidence on the basis of which we

 7     were convicted.  First of all, let me mention a woman called

 8     Bakira Hasecic.  95 per cent of her statements were submitted to ICTY.

 9     She was taking statements from false witnesses and submitted them to

10     ICTY.  I will mention the facts about this person.  While the

11     hydro-electric power-plant in Visegrad was taken by extremist group

12     before the outbreak of the war in Visegrad, they planted explosive on the

13     hydro-electric power plant and they threatened to blow everything up.

14     Then they kidnapped a group of policemen of Serbian ethnicity who were

15     discharging their duties and put them in the tunnel below the

16     hydro-electric power plant.  The main person present there was

17     Bakira Hasecic.  She beat and tortured the policemen with her gang.

18     Instead of water, they forced the policemen to drink urine and to --

19             JUDGE GUNEY: [Interpretation] You have already spoken over ten

20     minutes.  How many minutes do you still need?

21             THE APPELLANT M. LUKIC: [Interpretation] Not many, Your Honours,

22     so please allow me.  It won't be long.

23             JUDGE GUNEY: [Interpretation] All right.

24             THE APPELLANT M. LUKIC: [Interpretation] Thank you.

25             What I'm telling you has been documented by TV footage, and this

Page 209

 1     gentleman was among the maltreated policemen, I mean Mr. Sredoje Lukic.

 2             The war did not begin in Visegrad.  It was the outbreak of the

 3     war, when the JNA came to Visegrad and liberated the hydro-electric power

 4     plant, where Bakira Hasecic fled to Sarajevo with her gang and never

 5     returned to Visegrad.  After the war, to protect herself, she established

 6     an association of women victims of war, and she was the head of it.

 7     Whenever any Prosecutor's office throughout the former Yugoslavia or from

 8     ICTY needed statements, she would then fabricate stories and take

 9     statements from them.  In Sarajevo she was investigated and in the Sipcic

10     and others cases it was proved that she forced people to make false

11     testimonies against people.  Before the war she was a friend of

12     Risto Perisic and Branimir Savovic, who were those who decided about the

13     life and death of people in Visegrad.  These were the commander of the

14     Crisis Staff and the chief of the police in Visegrad.

15             [No interpretation]

16             JUDGE GUNEY: [Interpretation] You are still given two minutes to

17     complete your --

18             THE APPELLANT M. LUKIC: [Interpretation] -- probably colluded so

19     that she provide protection to innocent Muslim people and they would

20     provide her with cover.  As for Huso Kurspahic, that's a different story

21     all together.  He was a hearsay witness and it's a story out of a horror

22     movie.  He said 70 people were in Pionirska Street, and I found 20 of

23     them alive and spoke to them on the telephone from the Detention Unit.

24             When he gave an interview to the TV, he said that it was all

25     rigged.  As for Hamdija Vilic, that man threw a grenade into a cafe after

Page 210

 1     the war, wounded 20 people, lost his own lower arms, killed three people,

 2     and they brought him here as a witness against me, an innocent man,

 3     whereas he was released from prison to testify here.  What can I do about

 4     it?  As for Serbia, whatever document we requested, it's not available.

 5     And I was convicted.  Let me show you this newspaper.  My Albanian

 6     friends and Serb friends and Croat friends gave me this newspaper

 7     yesterday.  It says:  Milan Lukic involved in the assassination of

 8     Prime Minister Djindjic.  How can I have participated in that?  I love

 9     Muslims.  These are my last words --

10             JUDGE GUNEY: [Interpretation] Thank you very much --

11             THE APPELLANT M. LUKIC: [Interpretation] Just one second, please,

12     just one sentence.

13             JUDGE GUNEY:  All right.

14             THE APPELLANT M. LUKIC: [Interpretation] Muslims are my brothers.

15     We are the same people, the same culture.  I still have Muslim friends.

16     I don't hate them.  I'm not a fascist.  I am sorry for my innocent

17     people, for all the suffering they've had to go through.  Thank you very

18     much.

19             JUDGE GUNEY: [Interpretation] Thank you, Milan Lukic, for your

20     intervention.

21             Mr. Sredoje Lukic, do you wish to take the floor?

22             THE APPELLANT S. LUKIC: [Interpretation] Your Honours, first of

23     all, let me say, nobody has the right to speak in my name except myself

24     and my lawyers.  As for whether I am guilty or not, with all due respect,

25     I leave it up to you to judge.  I have nothing further to say.  Thank you

Page 211

 1     very much.

 2             JUDGE GUNEY: [Interpretation] Shall I understand from this that

 3     you do not wish to take the floor any further?  You do not wish to speak

 4     any further or to make any statement?  Because you are allowed to do so

 5     if you wish to do so.

 6                           [Appeals Chamber and Legal Officer confer]

 7             THE APPELLANT S. LUKIC: [Interpretation] No.  I've said I want to

 8     distance myself from -- my predecessor said nobody has the right to speak

 9     for me apart from my lawyer.  With all due respect, I leave it up to you

10     to decide whether I'm guilty or not.  Thank you very much.

11             JUDGE GUNEY: [Interpretation] Thank you very much.  If my

12     colleagues or the parties do not have any additional questions, I suggest

13     to close this hearing for today.  The appeal judgement will be given in

14     the best possible time.  On behalf of the Appeals Chamber -- well, first

15     of all, I would like to know whether my colleagues or the parties have

16     additional questions.  Apparently not.

17             So on behalf of the Appeals Chamber, I would like to thank the

18     counsels and the Defence teams of Milan and Sredoje Lukic as well as the

19     OTP team for their co-operation.  The Legal Officers and the Registry are

20     also to be thanked for their excellent co-operation during the hearing.

21     I would also like to thank the technicians, the court reporters, as well

22     as the interpreters; in other words, everyone who kindly contributed

23     behind the front line, so to say.

24             I would like to close this hearing for today.

25                     --- Whereupon the Appeals Hearing adjourned at 11.18 a.m.