Tribunal Criminal Tribunal for the Former Yugoslavia

Page 26769

 1                           Tuesday, 19 August 2008

 2                           [Prosecution Closing Statement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           [The Accused Lazarevic not present]

 6                           --- Upon commencing at 9.02 a.m.

 7             THE REGISTRAR:  Good morning, Your Honours.  This is case number

 8     IT-05-87-T, the Prosecutor versus Milan Milutinovic et al.  Thank you.

 9             JUDGE BONOMY:  Good morning, everyone.  Today's hearing and the

10     subsequent hearings to complete the case are those during which we will

11     hear closing arguments for all parties.  Mr. Bakrac, we've been advised

12     of the state of health of Mr. Lazarevic, who is recovering from

13     treatment, I understand, and I see that he's not present in court this

14     morning.  I understand that he is content that these hearings should

15     proceed in his absence.  Can you confirm that, please?

16             MR. BAKRAC: [Interpretation] Yes, Your Honour, I can confirm

17     that.  I was with him yesterday in the prison hospital, and he agreed

18     that we continue the proceedings without his presence.

19             JUDGE BONOMY:  Thank you, Mr. Bakrac, for confirming that.

20             We will now proceed to hear the closing arguments for the

21     Prosecution.

22             Mr. Hannis.

23             MR. HANNIS:  Thank you, Mr. President and Your Honours.  For the

24     record, I'm Tom Hannis on behalf of the Office of the Prosecution.  I'm

25     joined today by our case manager, Mr. Ian Reid, trial attorney

Page 26770

 1     Daniela Kravetz, and my co-senior trial attorney, Mr. Chester Stamp.  It

 2     is an honour, Your Honours, to appear before you again this one last

 3     time.  The weight of my responsibility to address remarks to you about

 4     the Prosecution's case weighs heavily upon me, but I feel confident that

 5     there is substantial evidence to support the arguments that we will be

 6     making.  I guess in context to the time, Your Honours, I feel a little

 7     bit like I'm at the Olympic finals of trial advocacy.  I hope I can at

 8     least make the finals, if not earn a medal.

 9             We're here to talk about the crimes that were committed in Kosovo

10     in 1999.  The Prosecution has said in our indictment and throughout this

11     trial that these six accused were participants in a joint criminal

12     enterprise, the purpose of which was to modify the ethnic balance in

13     Kosovo in order to ensure continued Serb control over that province.  And

14     before I go on to speak about that, Your Honours, I should explain to you

15     the order in which we intend to proceed.

16             I'm going to make some introductory remarks in terms of an

17     overview, talk a little bit about the background leading up to these

18     crimes.  Ms. Kravetz will follow me and speak briefly about the pattern

19     of the crimes and the crime base and why people left Kosovo in the spring

20     of 1999.  She will be followed by Mr. Stamp who will talk about the

21     bodies evidence that's been a big part of this case and about the

22     individual responsibility of Mr. Milutinovic, Mr. Sainovic, and

23     General Lukic.  Then you will hear from me a second time.  I'll address

24     the individual criminal responsibility of our military accused,

25     General Ojdanic, General Pavkovic, and General Lazarevic.  And we will

Page 26771

 1     conclude with some general observations about the evidence and the

 2     approach that I would like to suggest that Your Honours follow in

 3     reviewing all the evidence that you've seen and heard in this case.

 4             Now, as I said, this joint criminal enterprise to alter the

 5     ethnic balance to help maintain Serb control in Kosovo was -- was to be

 6     achieved by criminal means, and in this case those criminal means took

 7     the form of a widespread and systematic campaign of terror and violence

 8     directed at the Kosovo Albanian population.

 9             Now, the man with a plan about carrying this out was

10     Slobodan Milosevic.  And one of the first and most, I guess, chilling

11     examples of the fact that he had a plan and the nature of the plan is

12     found during a 24 October 1998 meeting that Mr. Milosevic had with

13     General Naumann and General Clark.  You heard the evidence of

14     General Naumann when he was here and he told us how during that meeting

15     after the agreement had been signed, Mr. Milosevic became agitated and

16     said that a final solution to the Kosovo problem would be found in the

17     spring, and when Naumann and Clark pressed Mr. Milosevic for an

18     explanation of what he -- what he meant by that exactly, he said, "We'll

19     do what we did in Drenica in 1946."  They weren't quite familiar what

20     that was, they asked him to explain and he said, "We got them all

21     together and shot them."  And indeed in March through May 1999, you see

22     examples of those kind of crimes of people being taken away and shot, of

23     people being forced to leave their homes.  These crimes in March through

24     May 1999, we say, were the next logical step in a series of ever more

25     oppressive measures to try to deal with the Kosovo problem, and these go

Page 26772

 1     back, Your Honour, 10 or 20 years before the crimes.

 2             Now, with regard to the participants in the joint criminal

 3     enterprise, let me show you the next slide.  We have Mr. Milosevic,

 4     President Milutinovic.  He was a part of the Supreme Defence Council

 5     which we say later came to be called the Supreme Command during the state

 6     of war, and the Supreme Command directed and controlled and made

 7     decisions about the use of the VJ, the army, during the conflict.

 8     Heading the VJ during that time was General Ojdanic as chief of the

 9     Supreme Command Staff as it was known during the wartime.  Directly

10     subordinate to him was General Pavkovic, commander of the 3rd Army.  And

11     his immediate subordinate commanding the Pristina Corps was

12     General Lazarevic who was commander over the VJ brigades and later the

13     Pristina military district was resubordinated to him.  We say those

14     forces were a substantial portion of the forces that helped carry out the

15     crimes in Kosovo in 1999 during the war.

16             Also in this joint criminal enterprise, we say, was Mr. Sainovic

17     who played a significant role through his activities with the

18     Joint Command, both in 1998, particularly during the time that the 1998

19     plan for the suppression of terrorism was carried out, and also we say in

20     1999.

21             Helping complete the membership in the joint criminal enterprise,

22     those participants who had an active role in engaging the forces that

23     actually committed the crimes hands-on, General Lukic, head of the MUP

24     staff in Kosovo.

25             Now, I just want to address briefly the forces that were involved

Page 26773

 1     in the crimes.  We have the Yugoslav army.  And, Your Honour, for

 2     everyone who is watching, if you want to see the visuals that I'm

 3     referring to they're on the e-court channel as these slides come up.

 4             The Serb forces or the Yugoslav army, the VJ, both active and

 5     reserve in the Ministry of Interior.  Police active and reserve.  The

 6     military district, particularly the military territorial detachments, and

 7     others including what we've referred to in several instances as the armed

 8     non-Siptar population.  We'll talk more about that later.

 9             Just -- I'd like to put up quickly one slide showing the command

10     structure of the army.  This is an attachment, I believe, to our final

11     brief and an exhibit in the case.

12             One more slide for you is a slide showing Kosovo and the general

13     outlines and the areas of responsibility of the VJ brigades active in

14     Kosovo in 1999.  And the 125th under Colonel Zivanovic.  The 549th under

15     General Delic, 243rd under Colonel Jelic, the 15th Armoured Brigade under

16     Colonel Gergar.  The MUP.  I'll put up the slide showing the structure

17     and you'll see that General Lukic was head of the MUP staff and where

18     they fit into the organisational structure.  We have the military

19     district, and we'll talk more later about their role.

20             The others included Ministry of Defence units such as the

21     Civil Defence and civil protection, local or village defence, armed

22     non-Siptar population, the paramilitaries, and volunteers.

23             Now, how were all these bodies engaged and how were they

24     controlled and used to take part in these crimes?  Well, in part through

25     various coordination and control entities.  First of all, we had the SDC,

Page 26774

 1     the Supreme Defence Council, and as it was known during wartime the

 2     Supreme Command.  For the army we had the VJ General Staff prior to the

 3     commencement and the state of war and then became known as the

 4     Supreme Command staff during the state of war.  For the MUP forces in

 5     Kosovo we had the MUP staff.

 6             And then there was another body that we talked about a lot in

 7     this case and we will talk about a lot during these closing remarks.

 8     That was the Joint Command, and I will address that in some detail when I

 9     return to speak later on at the end of the day or tomorrow.

10             Now, the plan or common purpose of this joint criminal enterprise

11     was to maintain Serb control of the province by altering the ethnic

12     balance, and that occurred primarily by removing ethnic Albanians from

13     Kosovo.  This wasn't a plan that developed in an instant.  We say this

14     was something that developed over time, over a long period of time, after

15     other efforts to deal with the Kosovo problem had proved unsuccessful.

16     And in simple terms, the Kosovo problem was too many Albanians, too many

17     Albanians with separatist intentions and the effect that had on the Serbs

18     who lived in Kosovo.

19             There's a lot more detail about this in our brief, Your Honours,

20     I think beginning at paragraphs 28 to 83.  I just want to highlight some

21     of these key points.

22             During the 1980s, one of the principal grievances of Serb

23     nationalists circles was that the constitution of the SFRY gave Kosovo

24     substantial autonomy, and as a result of that, Kosovo Serbs were

25     vulnerable to discrimination by a government that was dominated by ethnic

Page 26775

 1     Albanians in Kosovo.

 2             By the early 1990s, we say the preservation of Serbian control in

 3     Kosovo had become central to Mr. Milosevic and Serbian policy.  There

 4     were a number of legislative changes that began to occur in late 1998.

 5     In the spring of 1999, you've heard the evidence about special measures

 6     that were introduced in Kosovo.  And in March of 1999, the

 7     Serbian Assembly proposed amendments to the Serbian constitution that

 8     would in effect strip Kosovo of most of its autonomy.

 9             And in late March 1989, Kosovo's autonomy indeed was effectively

10     revoked.  We have evidence that police repression against Kosovo

11     Albanians increased dramatically after that point in time.  We have

12     evidence from Fred Abrahams, Veton Surroi, Adnan Merovci, and

13     Ibrahim Rugova, among others, held during the 1990s most of the Kosovo

14     Albanian language schools were closed.  Most of the employees of ethnic

15     Albanian nature were fired from the University of Pristina.  Kosovo

16     Albanians were dismissed from managerial and directorial positions.  And

17     yet in spite of that during that time period in the early 1990s, the

18     Kosovo Albanians primarily pursued a policy of civil resistance and they

19     did establish an unofficial parallel system of health care and education,

20     but the problem persisted.

21             The Serbian authorities made attempts to address the problem in

22     Kosovo by bringing more Serbs into Kosovo, some of the Serb refugees from

23     the conflicts elsewhere in Yugoslavia, but those efforts we say also did

24     not prove to be very successful.  The problem continued.  On the Albanian

25     side the -- the more outspoken critics of the Serb policy began to

Page 26776

 1     support violence as an alternate means to deal with the problem.

 2     Mr. Rugova and his policies lost favour with substantial numbers of those

 3     individuals, and the violence in Kosovo increased.

 4             We say this led to the formation of the Joint Command in 1998 in

 5     conjunction with the 1998 plan to suppress terrorism.  And finally, when

 6     that also failed to adequately solve the problem, we say it led to the

 7     1999 crimes under cover of the NATO conflict.

 8             Now, the Defence has argued throughout the trial and in their

 9     closing briefs that there was no plan, that there was no joint criminal

10     enterprise.  We say, Your Honour, and when we wrap up our arguments we

11     will hope to have presented several details and examples to support our

12     primary argument that the existence of the plan to modify the ethnic

13     balance in Kosovo by criminal means is the only reasonable inference to

14     be drawn from the totality of the evidence in this case.

15             Now, the plan or common purpose doesn't have to be written down

16     in a document or declared in a speech.  I say since the end of

17     World War II and Nazi Germany people who make a decision to engage in a

18     programme like this are not going to put it down in writing and say this

19     is our plan to expel Kosovo Albanians.  You shouldn't expect to find such

20     a document.  Indeed if you did, you should be suspicious about it.

21             So in essence, Your Honour, we have a circumstantial case and I

22     will talk about circumstantial evidence when I come back to you later on

23     to make my final remarks at the end.

24             Part of the evidence that supports that statement I just made

25     about the only reasonable conclusion to be drawn is from the pattern of

Page 26777

 1     the crimes that were committed, the deportations, the forcible transfers,

 2     the murders, and the persecutions.  There's a pattern, too, in how these

 3     crimes were carried out in March, April, May of 1999.  An illustration of

 4     that is found in part from looking at the Joint Command orders at the

 5     beginning of the war.  On your screen you'll see now some examples from

 6     the Joint Command orders during the period between 23 March and

 7     4 April 1999 showing the areas where combat actions were carried out,

 8     joint actions between the VJ and the MUP, and we'll talk later how those

 9     areas coincide with our crime sites and with the testimony of victim

10     witnesses who were eyewitnesses to some of the killings and themselves

11     suffered the deportations, and in some cases actually survived massacres

12     of their fellow villagers.

13             The next slide is another illustration of Joint Command orders

14     for a later period, from mid to late April 1999, again showing areas that

15     coincide with where we say crimes actually occurred.

16             Your Honours, that's the conclusion of my overview.  Now I'd like

17     to turn the podium over to Ms. Kravetz who is going to talk about the

18     crime base and the pattern.  Thank you.

19             JUDGE BONOMY:  Thank you, Mr. Hannis.

20             Ms. Kravetz.

21             MS. KRAVETZ:  Good morning, Your Honours.  The question that has

22     been asked over and over again in this courtroom during the course of the

23     last two years is why did the Kosovo Albanian population flee in large

24     numbers during the indictment period.  Now, the Defence in this case do

25     not contest the fact that there was a large scale departure of Kosovo

Page 26778

 1     Albanians during the period that we are concerned with in this case.  The

 2     contested issues are the reasons for this departure.

 3             Now, the OTP's position is that the departure of over 800.000

 4     Kosovo Albanians from Kosovo was mainly due to the actions of the forces

 5     of the FRY and Serbia, of the actions of the VJ and the police acting in

 6     a coordinated manner and under the command of the accused.  These forces

 7     forced the population to flee the province.

 8             Now, we say the evidence presented in this case establishes

 9     beyond reasonable doubt that this was the main cause for departure, and I

10     will be speaking about the reasons why we think this has been proven to

11     you.

12             Beginning on 24th March 1999, which we know is a date that NATO

13     started bombing Kosovo and continuing on through April and May 1999, the

14     forces of the FRY and Serbia acting in a concerted and coordinated manner

15     launched a widespread and systematic attack on Kosovo Albanian villages

16     throughout the province aimed at driving the Kosovo Albanian population

17     out.  The accused in this case used the NATO bombing as a window of

18     opportunity to carry out the common plan.  Mr. Hannis has just spoken

19     about the common purpose of the JCE that is charged in this indictment.

20             During these attacks that were carried out throughout the

21     province, these forces systematically looted property belonging to

22     Kosovo Albanians, massacred civilians, and we've heard evidence in this

23     case of numerous instances of killings of civilians during this attack.

24     They sexually assaulted Kosovo Albanian women, destroyed businesses,

25     burned down shops and burned down homes of those being expelled in an

Page 26779

 1     effort to leave nothing behind for those who were expelled to return to.

 2             Now, typically we've heard this from the evidence, VJ forces

 3     would shell the villages to force the civilians to flee.  Later MUP

 4     forces would enter on foot and conduct house-to-house searches and expel

 5     remaining civilians.  The civilians would normally be channeled to

 6     transit areas from where they would be boarded on buses or trains or

 7     forced to take their own vehicles and directed to border crossing points.

 8     Sometimes they would be forced to walk for many hours, sometimes days to

 9     reach the border.  And we heard in this case the testimony of many

10     witnesses who told us about their plight in reaching these border

11     crossings.

12             These attacks that were carried out throughout the province

13     created an atmosphere of terror.  The residents of villages in one part

14     of the municipality would flee upon hearing that attacks were being

15     conducted in other villages or in neighbouring villages, neighbouring

16     towns of their municipality.  The Kosovo Albanian population had no

17     choice but to flee their homes and -- in fear of these attacks.

18             The evidence of the pattern that emerges from the testimony that

19     we've heard in this case is compelling.  On 24th March we hear that

20     villages were attacked in municipalities across Kosovo, in Orahovac,

21     Suva Reka, Kosovska Mitrovica, Vucitrn, Kacanik, Urosevac, simply to

22     provide some examples.  These attacks happened again and again and again.

23             I will not go through every instance charged in the indictment,

24     every example.  We have submitted quite lengthy written submissions in

25     this case and due to time constraints I'm not able to cover each one of

Page 26780

 1     them, but I would like to focus on one example and this is Pristina

 2     because we say it illustrates the pattern that was to follow of these

 3     attacks carried out throughout the province.

 4             Now, Pristina, as you know, was the capital of the province or is

 5     still the capital of the province.  It was also the place where the

 6     accused met -- several of the accused had their headquarters during the

 7     relevant time.  The Chamber will probably remember the testimony of

 8     several witnesses who spoke about events in Pristina, Emin Kabashi,

 9     Nazalie Bala, K62, K63, and these witnesses told us that the expulsions

10     in this municipality of Kosovo Albanian residents began on and around

11     24th March and continued throughout the last week of March and into the

12     first week of April.  This is when the largest wave of expulsions was

13     carried out.

14             Now, these expulsions were carried out systematically with force

15     and intimidation and we heard from witnesses how mixed groups of police,

16     soldiers, and sometimes local Serbs who joined in these expulsions went

17     from house to house forcing civilians to leave or face death.

18             In many instances once the residents would leave their homes,

19     their homes would be burnt down, their shops and businesses destroyed.

20     We also heard testimony from a couple of protected witnesses that during

21     these expulsions women were sexually assaulted in their homes by forces

22     breaking into their homes to force residents to leave.

23             Now, the residents of Pristina municipality were directed towards

24     the centre of town, to the train station, where they were forced to board

25     trains that would take them south to the Macedonian border.

Page 26781

 1     Your Honours, this was not a humanitarian evacuation or an evacuation

 2     conducted for any legitimate purpose.  Your Honours probably remember in

 3     the testimony of Emin Kabashi who was one of the persons at the train

 4     station, and we have the slide up of an excerpt of his witness statement,

 5     who spent several days there trying to board a train and who spoke about

 6     the thousands of people that arrived to the train station in Pristina who

 7     were forced onto trains, and he said that he witnessed the police herding

 8     these people onto trains like cattle.

 9             And we heard the testimony of several witnesses who were on board

10     these trains, Nazalie Bala, for example, who told us about the conditions

11     aboard these trains, about how crowded they were.  They had no windows.

12     People could barely move.

13             And K62, who was also at the train station, told us that she was

14     afraid that she would die because there were so many people at that train

15     station.

16             These civilians were transported by train to the Macedonian

17     border and as we've heard from several witnesses, including Mr. Bucaliu

18     who worked at the Urosevac train station, during the last week of March

19     and going into the first week of April the frequency of trains travel

20     from Pristina through Orahovac and on to the Macedonian border was

21     increased and so were the numbers of cars on the trains in order to be

22     able to deport larger numbers of people out of the province.

23             Now, these trains would go to the border crowded with people and

24     would return empty, and at the border, police tore the IDs of the

25     refugees and told them to cross over, that this was not -- this was

Page 26782

 1     Serbian territory, that they should go into Macedonia.

 2             This same pattern of expulsions that I've just very briefly gone

 3     over that we heard about in Pristina was repeated in municipalities

 4     across Kosovo.  This repetition of the same type of events in different

 5     municipalities show that these attacks were not isolated acts.  These

 6     were not coincidental events.  These attacks were planned.  They were

 7     organised, and the consequences were intended.  They were aimed at

 8     forcing the civilian population out of the province.

 9             There are more examples that will be referred to later in this

10     case -- later in our presentation by Mr. Hannis, so I will not go into

11     more examples of our crime base, but I do want to address some of the

12     Defence arguments that have been raised in this case and also in the

13     Defence submissions that have been filed.

14             Now, the Defence have advanced several different possible

15     explanations as to why the population left.  We've heard that the --

16     arguments in the sense that the population left because they were fleeing

17     NATO bombing, the KLA was forcing them to flee because they were trying

18     to create a humanitarian crisis.  We've heard them argue that Serb forces

19     were not really forcibly deporting the population but they were simply

20     escorting them to the border to assist them and remove them from combat

21     zones and protect the population.  And we've also heard arguments in the

22     sense that the population was fleeing because there was fighting going

23     on, legitimate combat, between Serb forces and the KLA.

24             We say that these reasons do not explain why the population left,

25     and I will first turn to the argument of -- that the people or the

Page 26783

 1     population left because of NATO.

 2             Now, this has been asserted by the Defence as a kind of mantra in

 3     this case in the face of overwhelming evidence to the contrary that the

 4     Kosovo Albanian population mainly fled because they were fearing NATO

 5     bombing which in fact started, as I said, when these attacks began

 6     throughout the province.

 7             Now, numerous witnesses who lived through these events, who were

 8     in Kosovo at the time and survived these events, they were the lucky ones

 9     to survive the events, came to this courtroom and told you that this was

10     not the reason why they fled from the province, and we have the slide of

11     the testimony of Ms. Bala as just one example of the many witnesses who

12     testified about this, who said that she and her family did not leave

13     Pristina because of NATO bombing.  She said, "We were forced to leave by

14     the army, the police, and the other forces that were present in Pristina

15     at the time."  And Your Honours probably remember the numerous witnesses

16     who testified about this and stated similar -- gave a similar response to

17     that of Ms. Bala.

18             General Smiljanic from the air force, commander of the Serb air

19     force, testified in this case and we have the testimony up there on the

20     screen, and he told us that one of the areas that was most heavily bombed

21     by NATO during their campaign in Kosovo was precisely the border area

22     between Albania and Macedonia.  He said that 80 per cent of fire was

23     opened in this area, and this was the area that was most heavily bombed

24     or destroyed.

25             Now, why would civilians, if they were fleeing because of the

Page 26784

 1     NATO bombing, head precisely to the areas where the bombs were falling?

 2     Why would they put themselves and their family members in harm's way and

 3     head to the areas that were being bombed?  Now, that doesn't really make

 4     sense, Your Honours, does it?

 5             We also know that at the same time that Kosovo was being bombed

 6     by NATO, Belgrade was also being heavily bombed but we did not see the

 7     waves of refugees that we saw departing from Kosovo departing from

 8     Belgrade during these bombings.  The fact is, Your Honours, that the

 9     evidence clearly shows that this was not the reason for the departure of

10     the population.

11             Now, turning to the argument that the departures were really

12     humanitarian evacuations, that Serb forces were simply removing civilians

13     from combat zones, we know that is not true from the testimony of

14     witnesses who said that when they arrived to the border their identity

15     cards were confiscated, their licence plates from their cars when they

16     were travelling in cars were seized and torn up and the documents were

17     torn up, and they were forced across the border.  This practice that we

18     have termed in our brief of identity cleansing was aimed precisely at

19     forcing people out and preventing them from returning.  This was not a

20     humanitarian evacuation.

21             Now, it is true that some civilians fled certain areas because

22     there was fighting going on, and they heard that Serb forces were

23     advancing in the direction of their villages and we have testimony to

24     that effect.  We should not forget, Your Honours, however, that only six

25     months prior to this campaign that was launched in March 1999 and I'm

Page 26785

 1     speaking about the period of the summer offensive of -- conducted between

 2     August and October 1998, Serb forces in that period conducted a

 3     widespread campaign throughout the province during which thousands of

 4     civilians were internally displaced.  Kosovo Albanian villages were

 5     burned.  Some were razed to the ground.  Of course civilians would flee

 6     in March and April upon hearing that Serb forces were heading their way.

 7     They had lived through similar events only six or seven months prior.

 8     They had suffered the consequences of these attacks.  They knew the fate

 9     that awaited them if they remained in their villages and they feared for

10     their lives.  They had no choice but to flee from their homes and from

11     their villages.

12             I want to turn now to some of the murder incidents that are

13     charged in the indictment and I will only go very briefly through some of

14     the Defence arguments that had been raised regarding some of our killing

15     sites.

16             Now, the Defence have argued with respect to the murders that

17     Serb forces were really conduct -- simply conducting a legitimate

18     campaign, anti-terrorist actions against the KLA, and that the victims of

19     these murder incidents were either victims caught in the crossfire or

20     legitimate combatants, members of the KLA that were legitimately killed

21     during these anti-terrorist operations.

22             Your Honours, there was no KLA presence at 157 Milos Gilic Street

23     in Djakovica in early April when police forces attacked this house.

24     There were only 20 civilians, mostly -- 19 of them were women and

25     children who had hid in the basement seeking shelter and they were forced

Page 26786

 1     out of the basement by the police and shot dead and Your Honours heard

 2     that -- the harrowing account of Dren Caka who was the sole survivor.  He

 3     was only 10 years old at the time and he witnessed his mother and sister

 4     being shot and he told us he survived only because he pretended to be

 5     dead and then he escaped out a window and we know that this house was

 6     later burnt down by the Serb police.

 7             There was also no KLA presence and no fighting going on at the

 8     pizzeria in Suva Reka where three branches of the Berisha family gathered

 9     and they were forced there by, again, Serb police.  Around 40 -- over 40

10     people were shot dead, all members of the Berisha family, a large number

11     of them were women and children, by Serb police and later explosives were

12     thrown in the pizzeria.  And we know from the evidence, from forensic

13     evidence that the bodies of these persons were at first buried outside in

14     Prizren in a firing range and they were later transported outside of

15     Belgrade and buried in clandestine mass graves.

16             Now, one wonders if these were really legitimate killings, why

17     someone would go through the trouble of transporting bodies over 280

18     kilometres from Suva Reka and hiding them in mass graves.  Clearly these

19     were not legitimate killings.  These were civilians who were specifically

20     targeted because they were Kosovo Albanians.

21             Turning to Izbica, we've heard evidence to the effect that there

22     was fighting going on and that these persons killed were probably members

23     of the KLA.

24             Now, Your Honours saw the images that were filmed by

25     Dr. Liri Loshi who arrived to Izbica only days after the massacre had

Page 26787

 1     occurred and it is clear from the images that the victims of this

 2     massacre were mostly elderly men.  We heard testimony one of them was

 3     handicapped.  There were also two women who were burned on a tractor.

 4     They were burned alive by Serb forces and these were persons who had

 5     gathered along with thousands of others who had been expelled from their

 6     homes in other villages of the municipality.  They had gathered in a

 7     meadow hoping that by staying there in the open Serb forces would not

 8     attack them and that they would be protected and they even had white

 9     sheets to show that they were not fighting.  And these persons were shot

10     dead and as we know later, their bodies were also found in a mass grave,

11     some of the bodies of these victims were also found in a mass grave in

12     Petrovo Selo in Serbia proper.

13             And the last incident -- murder incident that I want to refer to

14     is Kotlina which we've heard extensive evidence about in this case as

15     well.  We know from the testimony of an eyewitness to this event that

16     Serbian police and soldiers captured a group of men who had fled and

17     hidden in -- up a hill in the forest, and they beat these men and took

18     them to some -- two water wells that -- water holes that had been dug

19     outside the village.  These persons were shot dead and then their bodies

20     were thrown down the well shaft and explosives were thrown down.

21             The circumstances of these killings shows that this was not a

22     legitimate killing.  These were not persons that were engaged in any type

23     of fighting, and the forensic evidence which has been tendered in this

24     case proves that -- corroborates the testimony that these persons died

25     from gunshot wounds and from the effects of the explosives.  Their bodies

Page 26788

 1     were actually dug out of the well.  That's where forensics found them.

 2             Another argument that has been advanced regarding the murders is

 3     that these murders were committed for personal motives, that the persons

 4     were not acting in an official capacity, they were not acting under

 5     orders of the police or the VJ.  We know from the evidence that these

 6     murders usually occurred when the villages were being -- were attacked,

 7     that when they were being cleansed as is -- as is the term referred to

 8     often in some of the documents that are cited in the brief, the military

 9     documents, there was a similar pattern in these crimes, these murders,

10     that shows that these were part of a campaign and that they were aimed at

11     terrorising civilians.  They were aimed at forcing others to flee.  And

12     in many occasions the victims were men, and they were simply killed

13     because they were able-bodied men who were captured in, like the examples

14     that I have given, and simply killed in cold blood.  Many of the victims

15     were also women and children, and these were murders, as I said, that

16     happened during the attacks on the villages when the populations were

17     being forced to flee.

18             Now, we have charged in this case a count of persecution which

19     includes the deportations and murders that I have already spoken about.

20     It also includes allegations of sexual assault which we say also forms

21     part of this campaign aimed at terrorising civilians and intended to

22     force civilians to flee the province, and we have presented before

23     Your Honours several examples of how these murders occurred.  You have

24     heard the testimony of several protected witnesses.  I'm not going to

25     recite that here.  It is in the brief.

Page 26789

 1             And these attacks also -- these sexual assaults also occurred

 2     during the course of the expulsions, and I've given the example of

 3     Pristina where we heard the testimony of one protected witness who was

 4     assaulted in her home when Serb forces broke in to expel the residents.

 5             We have also charged as part of our count of persecution the

 6     destruction of religious sites.  It's another type of crime that's

 7     charged under persecution.  These acts were not only criminal but the

 8     fact that religious institutions, mostly mosques, from what we heard in

 9     the evidence were destroyed reflects the intent that I referred to

10     earlier of leaving nothing behind for these expelled to come back to.

11     The evidence that has been presented in this case refutes the suggestion

12     of the Defence that this destruction occurred because of the NATO

13     bombing.  We know from the testimony of several witnesses that many of

14     these mosques were destroyed on and around the same date, 28th March,

15     which was not a date that was chosen by coincidence.  As you know, this

16     was the date of an important Muslim holiday, Bajram, and in several

17     municipalities we saw that the mosques were destroyed on this date.

18             Now, an issue that has been raised by the Defence with regard to

19     all the crimes is the issue of perpetrator ID.  Who were the actual

20     perpetrators of these crimes?  Mr. Hannis has already described to you

21     the forces that we allege were on the ground at the time.  This is

22     already explained in quite some detail in our brief.  Our position is

23     that MUP and VJ forces were the only significant forces that were

24     deployed in Kosovo at the time and that any other armed -- organised

25     armed group that was operating there was operating under the command and

Page 26790

 1     control of VJ and MUP forces, and in our brief we have cited numerous

 2     examples for each crime site, of military orders showing the units that

 3     were deployed there.  And we also heard from several insider witnesses

 4     who told us where there -- where they were deployed and where they

 5     conducted actions.

 6             There -- there were simply, Your Honours, no other significant

 7     forces on the ground other than the Serb forces.  And we do have to keep

 8     in mind that Kosovo is a very small territory.  I don't know if you

 9     remember our opening where we showed you Kosovo superimposed on a map of

10     Holland and Belgium to show you the dimensions of how small a territory

11     we're talking about and it is our position that Serbian forces, the VJ

12     and MUP controlled the areas of responsibilities where they were

13     operating.  So there were no rogue elements operating in these

14     municipalities that we were -- have charged.  These units were

15     participating together with VJ and MUP forces to carry out the common

16     plan that has been charged in this case.

17             Now we'll turn very briefly to some legal submissions.  Our legal

18     submissions on the elements of the crimes that have been charged are

19     contained in our pre-trial brief.  These are paragraphs 6 to 40 of our

20     pre-trial brief where we refer to the legal elements of war crimes and

21     crimes against humanity and the specific counts charged.  I'm not going

22     to repeat that here and these submissions were not reiterated in our

23     closing briefs so I refer Your Honours to our pre-trial brief with that

24     respect.

25             Mr. Hannis has referred to the common purpose of the JCE, and now

Page 26791

 1     with respect to the crimes charged, we say that counts 1 and 2, that is

 2     the crime of deportation and forcible transfer, form the core of the

 3     common purpose as charged in the indictment.  With respect to the

 4     remaining counts that is count 3 and 4, murder as a crime against

 5     humanity and war crimes and persecutions, it is our position that these

 6     crimes were either part of the common purpose and were intended by the

 7     members of the JCE including the accused or that they were natural and

 8     foreseeable consequences of the common purpose and the accused

 9     nevertheless took the risk and implemented this plan.

10             Now, during the course of this case Your Honours have probably

11     asked yourselves why the crimes that we've heard about in this case

12     occurred, especially when listening to some of the survivors of these

13     horrible events that took place in Kosovo.  These crimes occurred because

14     the political leadership, the leadership of the police and the VJ caused

15     these crimes to occur.  The accused in this case caused these crimes to

16     happen in Kosovo, Your Honours.

17             I will now yield the floor to Mr. Stamp, who will continue with

18     the submissions for the Prosecution.

19             JUDGE BONOMY:  Just before you do, I wonder if you could clarify

20     for me your submission at the beginning about the common plan.  Your

21     submission is that this plan existed from at the latest October 1998?

22             MS. KRAVETZ:  We have charged in the indictment that the

23     common --

24             JUDGE BONOMY:  Yes, but is that your submission as well.

25             MS. KRAVETZ:  My submission is that the pattern of attacks that

Page 26792

 1     we saw in Kosovo began -- and this is because the indictment has, of

 2     course, been restricted and the Racak incident has been dropped.  So I'm

 3     not speaking about events in January; I'm just speaking about events that

 4     started once the NATO bomb began.  So our submission is that the campaign

 5     of attacks that we saw in Kosovo began on 24th March 1999.  We have

 6     addressed in our brief what happened in the months prior to that, the

 7     build-up of forces before this campaign was launched.  And as Mr. Hannis

 8     has pointed out and I have also pointed out in my submissions, it is our

 9     position that the accused used the cover of the NATO bombing which was

10     started -- began on 24th March to implement the common plan, but there

11     was a build-up, of course.

12             JUDGE BONOMY:  But it's that I want to ask you about and I don't

13     think it's an answer to say that the indictment has been restricted in

14     some way.  I mean, your case must reflect what you consider the evidence

15     demonstrates, and what I'd like to be clear about is whether you're

16     saying that even prior to the negotiations at Rambouillet and Paris this

17     plan existed.  Is that your submission?

18             MS. KRAVETZ:  Yes.  It is our submission that the JCE came into

19     effect at least in October 1998.  The plan existed.  My submission when I

20     started this morning was that it was implemented, and I'm just referring

21     to the crimes we have charged in the indictment, it was implemented or

22     put into effect as of 24th March 1999.  There was, of course, a build-up

23     during that -- the months prior to the NATO bombing and -- which will be

24     addressed later on.

25             JUDGE BONOMY:  The way you've put it though was that the -- and

Page 26793

 1     you've put it twice now this way, that authorities used the NATO bombing

 2     campaign as a cover for implementing the plan.  Now, are you saying that

 3     that's something which just happened because of a developing set of

 4     circumstances, or are you saying that they went to the peace negotiations

 5     with the plan in mind that, "Well, when these break down, NATO will bomb

 6     us and we'll use that as a cover for removing the population"?  And you

 7     see that would then lead me to ask you the question did they seriously

 8     think they could defeat NATO and also clear the country of Albanians?  Is

 9     that your submission?

10             MS. KRAVETZ:  Well, I should say that the peace negotiations and

11     the breakdown of the negotiations is a topic that Mr. Stamp will be

12     addressing at quite some length in a bit.  It is our submission that

13     Serb -- Serb authorities went to these peace negotiations without a

14     legitimate intention to reach a peaceful solution in Kosovo.

15             JUDGE BONOMY:  I don't mean to lead you into an area that you're

16     not going to deal with and I'm happy to confine the questions to -- to

17     what you're specifically dealing with at the moment.  If I can go back to

18     the earlier part of that question which became a compound question.  Are

19     you saying that it was -- the plan ended up being implemented in March

20     because of a developing set of circumstances or because that was always

21     the intention?

22             MS. KRAVETZ:  It is our position that that was always the

23     intention, to carry out this campaign.  And -- this is as I said --

24             JUDGE BONOMY:  But how does it come to be related to the bombing

25     campaign?  That's what I'm trying to understand.  Are you suggesting it

Page 26794

 1     was always envisaged that NATO would attack and that would be the ideal

 2     opportunity to remove the population, or are you saying there's a

 3     coincidence between these two?

 4             MS. KRAVETZ:  No, I'm not saying that there is a coincidence.  We

 5     have addressed in our brief the fact that already in the months prior to

 6     the NATO campaign there was planning going on between the VJ and the MUP

 7     and we speak specifically about a 17th February meeting which happened in

 8     the MUP and there are also orders coming down from the VJ which show that

 9     they had a clear intention to launch a campaign in Kosovo, and this was

10     something that was not finished in October.  They were stopped in October

11     when they were launching this widespread campaign that I had spoken about

12     earlier, and we all know what happened in October.  The October

13     agreements were signed and international forces came to the ground.  But

14     there was always the intention to carry out this campaign and to expel

15     the population, and there was a build-up of forces which we speak about

16     and we will speak about later also in some detail.

17             Forces remained despite the agreements reached.  Forces remained

18     on the ground.  And in February we discussed in our brief the fact that

19     the MUP was planning these operations, and there's a statement which I

20     don't have before me right now from Minister Stojiljkovic and also from

21     Lukic who -- who say once the NATO bombing began that they planned to

22     carry out operations in Kosovo.  And unfortunately, I don't have the

23     reference in front of me, but I do refer Your Honours to our brief where

24     we are discussing this 17th February meeting, which is we say quite

25     important and significant and shows the intention of authorities to

Page 26795

 1     conduct an offensive.  This is discussed, Your Honours, in the section on

 2     the MUP staff where we're speaking about coordination between VJ and

 3     MUP -- MUP forces.

 4             JUDGE BONOMY:  Thank you, Ms. Kravetz.

 5                           [Trial Chamber confers]

 6             JUDGE BONOMY:  Thank you for assisting us, Ms. Kravetz.  We can

 7     now proceed to hear Mr. Stamp.

 8             MS. KRAVETZ:  Just very briefly, Your Honours.  The paragraphs I

 9     was referring to of our final trial brief are paragraphs 237 and 238, and

10     I just refer Your Honours to those paragraphs.  Thank you, Your Honours.

11             JUDGE BONOMY:  Thank you.  Mr. Stamp.

12             MR. STAMP:  Thank you, Your Honours.  As it is coming close to

13     the end, may I also express my gratitude of being allowed to appear

14     before this panel and to address this panel.

15             I do not intend to be as speedy as a man by the name of

16     Usain Bolt, as -- and the Jamaican woman at the Olympics as some of my

17     learned colleagues on the other side have asked me to be.

18             JUDGE CHOWHAN:  Are you congratulating Judge Nosworthy on this?

19             MR. STAMP:  I think she probably takes pride in that she -- there

20     is some connection to her as well.  I think, Your Honours, that the

21     Prosecution's closing brief is a very comprehensive document, and it

22     covers the relevant evidence in the case very carefully.  To some extent

23     it has predicted some of the arguments of the Defence in their briefs,

24     which is natural because many of the arguments and the issues were

25     refined and developed and became obvious as the case progressed.

Page 26796

 1             My Lord Bonomy did ask a couple questions just now and I will

 2     respectfully ask if both myself and Mr. Hannis would be allowed to

 3     respond to you when we come to that part of the address.

 4             JUDGE BONOMY:  That's perfectly acceptable, Mr. Stamp.

 5             MR. STAMP:  I'd like to start by discussing a little bit further

 6     what Ms. Kravetz talked about, and that is the evidence from the crime

 7     base that there was a pattern, that the crimes committed were widespread

 8     and systematic, because Kosovo, notwithstanding that it is a relatively

 9     small place, is a place where occurred massive crimes.  Hundreds of

10     thousands of people were expelled, thousands were killed, and occurred in

11     a pretty short period of time.  And the scale and gravity of crimes that

12     are discussed in the Prosecution's closing brief and just now by

13     Ms. Kravetz are matters which impact on every aspect of this case, from

14     the knowledge of the accused to the intention of the accused and to what

15     the accused did and ought to have done.  This, it is submitted, is not a

16     situation where there might have been a few victims and, therefore,

17     persons may say that well, there were rogue elements or there was nothing

18     I could have done.  This was, it is submitted, a massive organised

19     criminal enterprise.

20             So the Defence argument that the evidence shows nothing more than

21     sporadic or random violence against Kosovo Albanians is not supported by

22     the evidence.  This argument is made primarily, I think, by Mr. Ojdanic

23     at paragraph 18 of his closing brief where he says that the killings and

24     incidents of expulsion were the result of individuals or small groups

25     acting out of revenge or hatred or on the orders of local leaders.  This

Page 26797

 1     is an attempt to minimise and localise the types of crimes we're talking

 2     about.

 3             Mr. Milutinovic, another example at paragraph 303 of his closing

 4     brief, submitted at the last bullet point of page 145, of his page 165,

 5     that it cannot reasonably be inferred from the crime base evidence that a

 6     criminal plan existed.

 7             The pattern from the crime base evidence, it is submitted, is

 8     obvious.  Typical assaults on villages or population centres of Kosovo

 9     Albanians where the population are expelled and sometimes some parts of

10     the forced population, mostly men, are separated and killed.  And it is

11     submitted and I join Ms. Kravetz in this submission, that that evidence

12     considered in its entirety by itself is sufficient to show that there was

13     a widespread and systematic campaign.  However, the crime base evidence,

14     that is the evidence of the victims, is augmented by the evidence of the

15     clandestine transportation and concealment of the bodies of over 800

16     Kosovar Albanians into Serbia proper, and these bodies were discovered in

17     2001.

18             This is largely unchallenged evidence that this occurred, but it

19     is the submission of the Prosecution that the -- this Trial Chamber is

20     entitled to draw many inferences or certain inferences from this

21     unchallenged evidence.  Some of them are pretty obvious, and one is that

22     the mortal remains of these victims, of these persons, were the remains

23     of persons who were victims of murder, and the parties who organised this

24     trans-shipment and concealment were aware that these were murder victims,

25     not combatants but murder victims, and were conscious of their guilt or

Page 26798

 1     their participation in these murders.  Otherwise, the bodies, of course,

 2     I think it's pretty obvious, would not have been concealed and so much

 3     effort would not have been made to ship them.  They would have been

 4     processed in the normal course of events.

 5             And -- well, before going on, I have a note here to make a

 6     correction.  At paragraph 289 of the Prosecution's pre-trial brief,

 7     reference is made to a chart of -- at Annex C, and it says that it

 8     summarises evidence relating to the exhumation of bodies in Serbia.  In

 9     fact, the proof of death chart in Annex C only summarises evidence in

10     respect to victims from the murder sites listed in the schedules.  It

11     does not cover all of the bodies of the persons exhumed in Serbia, just

12     the scheduled victims.  And this is a chart that was filed by the

13     Prosecution.  It's the same chart filed on the 27th of July, 2007, in

14     order to assist the Chamber in locating the forensic and other evidence

15     relevant to the deceased persons who are related to each scheduled murder

16     site in the indictment.  And it includes the forensic evidence in respect

17     to the examination of those human remains and also the identification

18     evidence, DNA evidence, and to some degree the evidence of witnesses to

19     the killings of these persons.

20             And the evidence revealed as Dr. Baraybar testified, that the

21     vast majority of the scheduled murder victims or the scheduled victims

22     whose remains were recovered in Serbia in a state that enabled them to

23     perform forensic examination, died from gunshot wounds that were

24     inflicted it could be scientifically established on persons who were not

25     engaged in combat.

Page 26799

 1             Another inference I think the Court is entitled to draw from the

 2     bodies evidence, if I may call it that, is the fact that these human

 3     remains were from different crimes committed at different places at

 4     different times.  Many of them were first buried at different places, at

 5     different times, to be systematically disinterred, gathered and collected

 6     and then transported hundreds of miles to two places where they are

 7     buried in mass graves together proves, it is submitted, that these were

 8     not random killings where they were trying to conceal the evidence, but

 9     there was a widespread and organised campaign to conduct the killings.

10             The parties, Your Honours, who organised the exercise to transfer

11     these bodies -- well, not just the transfer, to collect them from so many

12     places and then transfer them to Serbia must have -- these persons who

13     organised it must have had knowledge and participation in the original

14     murders.  Otherwise, they would not have known, or they would not have

15     been able to gather these bodies from these disparate places with such

16     facility.

17             The proof of death chart at Annex C, as I said, summarises the

18     evidence in respect of the victims from the murder sites listed in the

19     schedules to the indictment.  There are many other Kosovo Albanian

20     victims of murder during the indictment period whose remains were

21     identified among those found in Serbia and who were not included on that

22     chart because they were not linked to the scheduled murders.  They along

23     with the schedule victims whose remains were located in Serbia in 2001

24     are included in Exhibit P2798 which is a CD containing the consolidated

25     list of persons reported missing in Kosovo and the status of the case as

Page 26800

 1     of October 2006 and this was supplied to the ICTY by the United Nations

 2     Mission in Kosovo and the UN Office of Missing Persons and Forensics.

 3     More unchallenged evidence.

 4             And on your screen you will see the CD.  If you look at the

 5     various columns, you'll see column B is described as "State" in which the

 6     remains are returned or whether or not the case was closed and the

 7     remains were returned to the family.  I think Mr. Baraybar testified

 8     about this.  If we could scroll to the right you will see in column I the

 9     date of the event of the disappearance as reported.

10             Your Honours -- well, I will come to this later, and in columns J

11     and K respectfully, the location of the event of death or disappearance

12     as reported and the municipality.  And if you look in column O, that

13     refers to the mass grave sites where these persons were later discovered

14     in 2001.

15             The entire exhibit covers well over 5.000 persons who were

16     reported to the UN Office for Missing Persons.  However, it is really the

17     600 plus whose bodies were located in Serbia that I am focused on, and I

18     wish to make it clear that I do not say that the 5.000 plus bodies -- or

19     persons that the exhibit refers to are necessarily relevant to this case.

20     These were just all of the persons that the Office for Missing Persons

21     recorded as missing.

22             So the technology allows us and what you have before you,

23     Your Honours, is a part of this exhibit.  The technology in which the

24     exhibit was presented allows us to sort it, and basically what Mr. Reid

25     has done here is to sort the exhibit, to show only those victims whose

Page 26801

 1     bodies or whose remains were identified among those found in the mass

 2     graves in Serbia in Petrovo Selo and in Batajnica as shown in column O.

 3     And if you -- you can also sort the spreadsheet to show where these

 4     victims were killed or where they were reported as presumed killed, and

 5     that can be done by the click of a button, and it has been done.  And if

 6     you look in column L, the village, and you scroll down, you will see from

 7     Bogicevii, in Pec, Brestovac, Orahovac, Cirez, Decani, Djakovica,

 8     Dobro Selo in Obilic, many of those bodies were found in Batajnica.  One

 9     can see people from Glogovac found at Petrovo Selo, Decani, Izbica.  In

10     the municipality of Srbica, many of those were found at Batajnica, it can

11     be seen.  Many from Korenica.  We heard a lot of evidence in respect to

12     both Korenica and Izbica.  Some were found at Batajnica, some at Petrovo

13     Selo.  Perhaps you could go a little faster.

14             Meja.  Well, there will be many from Meja.  At least 300 bodies

15     or -- or 300 persons were identified who were reported missing from Meja.

16     And the -- they were reported missing -- if we could -- if we could --

17     well, it's -- there -- they were reported missing or presumed missing on

18     the 27th of April.  The Prosecution did lead evidence in respect to the

19     Meja incident of the huge offensive by force of the FRY and Serbia which

20     resulted in the killing of over 300 persons.  Their bodies later to be

21     found in Batajnica.

22             If we scroll down.  Here we can see here people from Pec.  More

23     from villages of Ramoc.  We heard evidence about Ramoc, in Djakovica,

24     Slovinje, in Lipljan or -- please forgive my translation.

25             I show that to show -- to indicate to the Court that this wasn't

Page 26802

 1     a situation where maybe two incidents or a few incidents and somebody

 2     gathered some bodies and tried to hide them.  This is a huge enterprise.

 3     And if you look at the dates when these people were killed, apart from

 4     the dates which are consistent with the Prosecution -- with the incidents

 5     in the schedules, for example, you'll see that the Meja victims were

 6     killed on the 27th of April as charged in the indictment.  You'll see

 7     that there is a huge spread through the indictment, mostly March and

 8     April.  I should advise the Court that there was one reported according

 9     to -- to the staff in January, I think, of 1999 and one in July, but I

10     take it Your Honours would understand that in statistics of this nature

11     the occasional error will creep in.  We're talking about thousands of

12     victims and that does not affect the overall result.

13             I asked Mr. Reid to put on a map of Kosovo where these persons

14     would have been killed, and the small dots indicate either single persons

15     or small amounts of persons.  The bigger dots indicates 15 or so.  The

16     very large ones, like the one to the south-west corner of the map, I

17     think that is Meja, south, and that is where the -- a huge amount of

18     these 600 victims were found.

19             I think if you look to the centre of the map somewhere to the

20     south in Suva Reka, you will see just a small dot.  I should point out

21     that the victims of Suva Reka were not included in the UN list of missing

22     persons.  I -- these persons were the original and first persons who were

23     disinterred in Serbia and whose bodies were identified by the laboratory

24     in Spain.  Dr. Alonso, I think, testified about that.  So if those had

25     been included there would be another big green circle in the middle of

Page 26803

 1     Suva Reka.

 2             So I would submit, Your Honour, that analysis of this evidence

 3     disposes of the argument that there was not a massive organised killing

 4     campaign, and this is just the tip of the iceberg.

 5             And of course, a campaign so large involved high level

 6     organisation that is the only inference, it is my submission, and it is

 7     also supported by the evidence of those involved that persons, senior

 8     persons in the Ministry of Interior were involved in ordering some of

 9     these drivers to relocate the bodies.

10             K88 of the MUP said that in Batajnica over a period of 20 days

11     from early April 1999, there were at least six deliveries in large

12     refrigerated trailers of these bodies.

13             So it is submitted that the -- this organised campaign of killing

14     was not done as isolated acts, but as Ms. Kravetz submitted, when we look

15     at the killings especially where they are bunched, we see that they

16     occurred in the course of massive deportations.

17             So there is a question as to whether or not there was just a

18     campaign of killings or of persecution, or whether these killings, which

19     are obviously organised, obviously systematic, were also related to the

20     deportations.  And the Prosecution submits that the answer to that

21     question is yes.

22             If we -- the Meja evidence is probably the most striking

23     evidence, and it is important evidence because that was an operation from

24     the VJ side, was according to the evidence led by the Accused Lazarevic,

25     although the evidence is that the murders were primarily committed by

Page 26804

 1     policemen.  VJ and MUP forces came down the valley on the 27th of April,

 2     and this -- I'm referring to the evidence of Pnishi -- forgive the

 3     pronunciation, Dedaj and Peraj.  MUP forces came down the valley, forced

 4     the population out at certain check-points.  Men were separated and

 5     murdered in large quantities.  And these men disappeared, the bodies

 6     disappeared.  They were reported missing, presumed dead.

 7             Similarly Suva Reka, Izbica.  The murders occurred where the

 8     population were being pushed out of those areas.  Those bodies were found

 9     at Izbica -- sorry, at Petrovo Selo and Batajnica.

10             JUDGE BONOMY:  Mr. Stamp, it may be something to do with the

11     preparation of the transcript, I'm not sure, but going back to Meja, what

12     is it you're actually saying about who was responsible for that?  You say

13     it was an operation for which the VJ were responsible.  Then you say the

14     murders were principally committed by policemen.  And then you say MUP

15     forces came down the valley and that the people were -- people were

16     separated out and murdered.  Can you help us on that?

17             MR. STAMP:  Yes.  The evidence of Pnishi, Dedaj and Peraj is that

18     as the force of the FRY and Serbia came down, people were killed by both

19     VJ, by both soldiers, and by MUP.  I -- I recall Pnishi's evidence on

20     that in particular.  It does appear from the evidence that the -- many of

21     the murders were committed at MUP check-points, and that is the evidence

22     of Peraj, Nike Peraj, who observed at two or three check-points dozens of

23     men murdered.  So I just said really as an aside that most appeared to

24     have been killed at these check-points based on this evidence and the

25     evidence is that as the forces came down, forces from both sides were

Page 26805

 1     involved in these killings.  I could perhaps later on --

 2             JUDGE BONOMY:  All right.  Thank you.  Thank you.

 3             MR. STAMP:  The crime base evidence is also supported by

 4     evidence, if I may move on, Your Honours, evidence of statistical

 5     demography, evidence from that field, and the evidence -- this evidence

 6     provides further confirmation that the allegations of killings were, A,

 7     linked to expulsions, and B, were widespread and systematic.

 8             Your Honours, I say that this evidence by itself is not of much

 9     use.  It is merely confirmatory evidence.  It confirms the crime base

10     evidence.  The evidence of Dr. Ball is consistent, as it turns out, with

11     the crime base evidence, and is consistent with what I referred to as the

12     bodies evidence.

13             Dr. Ball's evidence is that the killing and migration patterns

14     were not the result of random acts of violence by government forces or by

15     any forces.  He said that both the migration flows and the killing took

16     place in well-defined peaks during roughly the same periods and in the

17     same places indicating that they both resulted from a common cause.  The

18     observed patterns were not consistent with periods of NATO bombing and

19     KLA activity but is consistent with the hypothesis that Yugoslavian

20     forces conducted a campaign of killings and expulsions.

21             So he says consistent with.  He says that is -- the analysis does

22     not prove that these offences were committed by Yugoslav forces.  What

23     proves it is evidence of the witnesses.

24             Now, the -- this evidence was led by the Prosecution with the

25     intention to assist the Chamber on specific issues of a highly technical

Page 26806

 1     nature where specialised scientific knowledge is required.  It is not an

 2     area that one can -- well, the ordinary person can master very quickly.

 3             Statistical demography especially is applied to complex

 4     humanitarian situations, requires a person with requisite experience,

 5     knowledge, and skill in order to posit opinions to a trier of fact to

 6     help them to draw conclusions and to understand and determine the issues

 7     in dispute.

 8             The Ball report and its addenda are the work of Dr. Ball and

 9     other experts described, genuine experts in the field of statistics,

10     demographics and application to a complex humanitarian crisis.  The --

11     and that is apparent from the curriculum vitae provided.

12             The basis of the attack on the work of Dr. Ball is on the basis

13     of the report of Dr. Fruits who also testified in this case, and this is

14     found mainly in the submissions of General Ojdanic from paragraph 126.

15             Dr. Fruits, Your Honour, is not qualified in the field of

16     statistical demographics and its application to humanitarian crises.  He

17     admitted that he has published only one article in the field of

18     demographics, and it was an article that used demographic information to

19     estimate government spending, and it's at 25978 of the transcript.  Nor

20     is he an expert in statistics, even though some of his work in urban

21     planning and econometrics touch upon statistics.

22             Fritz Scheuren who participated in writing the statistical part

23     of the Ball report and a past president of the American Statistical

24     Association, is an expert in statistics and Dr. Fruits wasn't even aware

25     of that.  Dr. Fruits in his evidence, when asked, he accepted that he's

Page 26807

 1     only familiar with the basics of the methodology that Dr. Ball and others

 2     used to estimate the number of deaths.  That is what is called multiple

 3     systems estimation or capture recapture statistical procedure which has

 4     been used and is being used the world over to estimate the number of

 5     victims of diseases, wars, famines, et cetera.  This is at 25980 where

 6     Dr. Fruits says that he was only familiar with the basics.

 7             Dr. Fruits from his cross-examination even displayed ignorance or

 8     lack of awareness of some of the basic terminology used the field, which

 9     can be seen from the exchange now on the screen.  And asked about basic

10     terminologies used in the study, he didn't know what it meant.  And asked

11     about his expertise in the field of applying statistics to demographic

12     issues involving complex humanitarian crises he said, "I would consider

13     himself an expert now.  I've spent two years doing this."

14             Your Honours, this according to his testimony, is a period of

15     time that he spent preparing his report and for his testimony in this

16     case.  His expertise is really limited to his efforts on behalf of the

17     Defence in this case.

18             What is even more striking, and I make this submission very

19     strongly because this is one of the really very technical areas of

20     expertise that the Court had considered and to some extent a Court has to

21     rely, it is submitted, upon the opinions of the expert because the

22     material is not very -- very easy for a layman to master, what is

23     significant is that Dr. Fruits in his report at section 11.2 states that

24     "statistical analysis could have provided an objective and verifiable

25     test of Dr. Ball's hypothesis."

Page 26808

 1             So this could have been tested by the application of statistical

 2     procedures.

 3             He admitted that over the two-year period that he had been

 4     working, and if we could see the text from 26024, he admitted that over

 5     the two-year period that he had been working on this case he had received

 6     the data sets that Dr. Ball used for his analysis and that's at 25999 of

 7     the transcript, so he had available to him the material that he could

 8     have applied statistical analysis to to test Dr. Ball's hypotheses.

 9     However, he did not perform this test.  He had the means to test them

10     scientifically, to document them and present them, but he did not.  He

11     did not even specify any of the procedures he said were available that

12     could have been used to test Dr. Ball's methodology even though he

13     admitted that it would have taken him one week out of the two years to do

14     so, as is discernible from the extract of the transcript on the screen.

15             He was a little bit flippant in the last answer.  He said, "It

16     would still probably take at least a week.  I'm a bit more careful than

17     other statisticians, I guess."  The point really is that this is, it is

18     submitted, a serious failure of an expert in seeking to criticise, apart

19     from any of the terms that he used which were unwarranted, is my

20     submission, but this is a serious failure for an expert to attempt to

21     criticise and undermine the work of another expert in a field of this

22     nature, to say he could have done scientific work on it but failed to do

23     it and to present it before the trier of fact.

24             Dr. Fruits offers very, very little more than a layman's critique

25     of the expert evidence of Dr. Ball et al. in a very complex and highly

Page 26809

 1     technical field.

 2             So the crime base evidence and the witnesses discussed in the

 3     pre-trial -- in the closing brief and by Ms. Kravetz is consistent with

 4     Dr. Ball's findings, and this almost by reverse analysis to some degree

 5     confirms his methodology, although the purpose of his testimony is to see

 6     whether or not scientific analysis would confirm the evidence of the

 7     witnesses, which it did.  Dr. Ball's expertise merely corroborates the

 8     overall picture that the killings and the expulsions coincided and that

 9     the NATO bombings and the actions of the KLA were not significant causes

10     of the migrations.

11             The questions, Your Honour, as to whether or not there was a

12     massive campaign, whether or not it was organised, that is, systematic, I

13     think from all the evidence should be answered yes.  Whether the accused

14     are party to it, it is submitted, also should be answered yes, and

15     that -- may I inquire what time --

16             JUDGE BONOMY:  Yes, this would be a convenient time to --

17             MR. STAMP:  I intend to move on when we resume.  Thank you very

18     much, Your Honour.

19             JUDGE BONOMY:  We will have a break now for half an hour and

20     resume again at 11.15.

21                           --- Recess taken at 10.46 a.m.

22                           --- On resuming at 11.17 a.m.

23             JUDGE BONOMY:  Mr. Stamp.

24             MR. STAMP:  Thank you, Your Honour.

25             The essence of the Milutinovic Defence as disclosed from the

Page 26810

 1     evidence led by the Defence and from the argument in the closing brief is

 2     that he is not individually criminally responsible as he did nothing to

 3     contribute to any crimes, and insofar as they were crimes committed, he

 4     did nothing because he had limited or no authority to do anything, and in

 5     any case, the media reports that he received about the crimes

 6     contradicted or were contradicted by official reports that he was -- that

 7     he had.  Thus, basically it is being said that he knew nothing and could

 8     do nothing even if he knew.

 9             The -- his powers and authorities have been discussed in the

10     pre-trial brief, and part of the discussion is the submission by the

11     Prosecution that the implementation of a JCE of this scale required not

12     only that high-level participants take positive steps to implement it, as

13     would the commanders of armies and other forces involved in the crimes,

14     but also that they refrain from acting to impede it even if it was their

15     duty to do so.  And one of the questions for the Trial Chamber is this:

16     If the Trial Chamber accepts that there was, in fact, a massive

17     widespread, well-organised and systematic campaign of violence, including

18     murders and arson and expulsions against the Kosovo Albanians as alleged

19     in the indictment with thousands of killings and hundreds of thousands of

20     expulsions over a three-month period, did Mr. Milutinovic as president of

21     the country have a duty to act to protect the safety of the endangered

22     population, and did he do what was required to discharge that duty?  Does

23     international law hold him to a standard in the particular circumstances

24     of this case?

25             The relevant law on the matter has been discussed in earlier

Page 26811

 1     litigation in this case and is further set out at paragraphs 602 and

 2     thereafter in the Prosecution's brief.

 3             One of the critical elements of this analysis is a question of

 4     notice and awareness.  He must know about what is going on or have

 5     reasonable cause to believe that an investigation ought to be conducted

 6     into the allegations of these widespread crimes.  It seems that the

 7     Milutinovic closing brief at paragraph 266 accepts that he did receive

 8     notice of crimes, including notice of their scale and gravity from the

 9     international media, but it goes on to say that this was contradicted by

10     reports that he received from official sources, and there was no reason

11     for him to disbelieve the competent structures authorised to conduct the

12     war effort, and that is how the issue is disposed of.

13             Well, firstly it is the Prosecution's submission that if the

14     president of a country have a regard to the standards of international

15     law as it has developed receives even from the media, through

16     international media, allegations of ethnic cleansing in his country, then

17     they cannot ignore it simply because he receives official reports that

18     contradict it.  It is submitted that the reports that he received in the

19     media is sufficient evidence of notice that imposed on him a duty to do,

20     as is indicated in the Prosecution's closing brief, as was said in the

21     Simic case, everything that was possible for him to do with his powers to

22     stop and to prevent these massive crimes.

23             He had the duty and the ability to request from the MUP that they

24     report to him as to what was happening in the country, and Mr. Markovic

25     agreed that this was a means available to him whereby he could exert

Page 26812

 1     public pressure on the government.  There is, however, a great deal of

 2     other convincing evidence that Mr. Milutinovic became aware of the crimes

 3     or became aware of credible allegations of them both in 1998 and 1999.

 4     That again is covered in the pre-trial brief, but of paramount importance

 5     which I'd like to highlight is evidence of Dr. Rugova and Mr. Merovci

 6     that Mr. Milutinovic was specifically told in early April of the crimes

 7     that Kosovo is being emptied of its Kosovo Albanian population in the

 8     course of a campaign of violence.  He later on received the indictment in

 9     this case.

10             Therefore, did he act to discharge his duty, or did he act in a

11     manner which fulfilled the implementation of a joint criminal enterprise?

12             The Defence of Mr. Milutinovic has throughout the case attempted

13     to marginalise and minimalise -- marginalise him from the political

14     process and to minimise his power and authority as president, and in the

15     course of the case this was rested primarily on the fact and expert

16     evidence of Ratko Markovic who is described in the closing brief of the

17     Defence as an independent witness.

18             Your Honours, it is submitted that he is no such thing.  He is

19     far from someone who could be described as an independent expert and is

20     someone whose evidence, especially insofar as he seeks to minimise the

21     role and the power of Mr. Milutinovic should be examined with extreme

22     suspicion and caution.

23             It should be recalled that Mr. Markovic had close connections

24     with some of the members of the alleged joint criminal enterprise, and he

25     was intimately involved in some of the crucial events relating to the

Page 26813

 1     indictment in this case.  He was a member of the government, many of

 2     whose members bear responsibility for the crimes committed by the force

 3     of the FRY in Kosovo.

 4             JUDGE BONOMY:  Is that an accurate statement, Mr. Stamp?  I

 5     thought he wasn't a member of the government.

 6             MR. STAMP:  Well, he was not a member of the government --

 7             JUDGE BONOMY:  Just like the Queen in a country or the president

 8     may not be a member of the government.  Are you saying he had a

 9     government position?  Are you saying that?

10             MR. STAMP:  No, no.  I'm not saying he was a member of the

11     government in the sense of the government that is a part -- or that comes

12     out of the legislator or comes out of elected officials.  Sometimes the

13     term "government" - and I apologise if I use it loosely - covers the

14     judiciary, the executive, and the -- the presidential aspects of a

15     government and I was using the term "government" in that sense.  However,

16     I do not say that he was a member of what we sometimes term to be the

17     executive government.

18             JUDGE BONOMY:  Sorry, I've perhaps misunderstood.  It's my

19     mistake.  Page 43, line 19.  That is a reference to Markovic.

20             MR. STAMP:  Markovic, yes.

21             JUDGE BONOMY:  I heard that as Milutinovic.  It's my mistake, I'm

22     sorry.  Please continue.

23             MR. STAMP:  Markovic is a member of the executive government.

24     Mr. Milutinovic is not.

25             So I was suggesting that his personal involvement in many of the

Page 26814

 1     pertinent issues make his opinion -- opinions unreliable to the extent

 2     that he has a personal interest in those opinions.

 3             He was also a member of the ruling political party, the SPS, and

 4     sat on its Executive Board.  He was a deputy of the federal parliament,

 5     and from 1994 to 2000 he served as one of the five deputy prime ministers

 6     for the Republic of Serbia.  He was personally engaged in negotiations in

 7     1999 -- 1998 as a member of the FRY delegation and also in 1999 at Paris

 8     and Rambouillet, and he was a member of the constitutional commission

 9     that drafted some of the legislation.

10             The fact that some of the documents that he drafted or had to

11     draft are controversial documents in this case makes it inevitable that

12     he be placed in a position of defending his own work and to the extent

13     that the Prosecution alleges that some of these constitutional amendments

14     that he was involved in changing were made to reduce the rights of

15     Kosovo Albanians, he would have an interest in saying no, there were

16     legitimate legislative purposes for the work.

17             Professor Markovic is therefore likely to be less objective than

18     would a more disinterested outsider who did not have a personal stake in

19     the materials at issue, and he has, because of his connection as I --

20     that I've outlined, a clear interest in the outcome of the case.  He's

21     not an independent expert.  Additionally, in effect he was a de facto

22     subordinate of Mr. Milutinovic.  For example, one could see that during

23     the negotiations in 1998 when Mr. Markovic was a member of the Serbian

24     delegation, Mr. Milutinovic could announce publicly on the 14th of

25     November that he would personally chair a meeting.  Mr. Milutinovic could

Page 26815

 1     intervene and take over, and he did so.  And I think the document is

 2     1D88.  And Mr. Milutinovic could do so because those persons, including

 3     Mr. Markovic -- sorry, Professor Markovic, were in fact his subordinates.

 4             And there's also the evidence from the Paris round of the

 5     negotiations in 1999 where Mr. Milutinovic took over the discussions from

 6     the other members of the Serbian delegation.

 7             In his report and in his testimony, Professor Markovic's approach

 8     offers an overly-hypothetical view of Mr. Milutinovic's authority.  For

 9     example, he says that the law and the regulations in effect did not

10     permit Mr. Milutinovic to represent Serbia in foreign affairs or to

11     conduct any of its relations with foreign states or international

12     organisations and persons.  Well, perhaps the law said so, but the

13     question is what was he doing at all these meetings?  What was he doing

14     at Rambouillet?  What was he doing at Paris, where from all of the

15     reports he took over the negotiations?

16             So this is just an area that the Court should be alerted to, an

17     overly technical and legalistic approach to the application of laws and

18     there are many examples of that in this case.  The Court, where

19     necessary, should remove the shroud and to look at the reality of the

20     situation.

21             There -- there were other examples of Mr. Markovic's attempt to

22     minimise Mr. Milutinovic's authority.  In -- in regard to Article 87(3)

23     [sic] of the constitution, if we could have that up, Mr. Markovic in his

24     report, and even at the beginning of his evidence, was suggesting that

25     this power, and I'm speaking about Article 83, subsection 7, power to

Page 26816

 1     adopt instruments at his own initiative or at the power of the

 2     government.  Markovic suggested that this was belonging to the category

 3     of reserve powers and competencies and that the president could only

 4     exercise these powers if Serbia became an independent state.  This was in

 5     his report 1D682, paragraph 226.

 6             When he was questioned about the reality of the situation in

 7     Serbia and including questions that emanated from the Bench, he was

 8     forced to admit that Markovic did and could exercise these powers and did

 9     so during the war.

10             JUDGE CHOWHAN:  Do you mean Markovic or --

11             MR. STAMP:  I'm sorry, I think that is a confusion.  The accused

12     Mr. Milutinovic.  And I'm speaking about the testimony of

13     Professor Markovic.

14             Again, by an overstrict legalistic approach Professor Markovic

15     seems to -- or attempts to minimise the reality of Mr. Milutinovic's

16     authority, and it would be -- I would invite Your Honours, without going

17     through all of that evidence, to review some of the evidence from

18     Mr. Markovic, particularly at about transcript page 12900 and thereafter.

19             Again Mr. -- Professor Markovic attempted to make a distinction,

20     both in his report and in his testimony, between what the Supreme Defence

21     Council could do.  He said it could not decide upon anything.  It could

22     just state a position or adopt conclusions.  And this -- in this area he

23     is far, it is respectfully submitted, from being credible.  His position

24     is contrary to the natural meaning of the words in Article 135 of the FRY

25     constitution in the Law on the VJ and the Law on the Defence and in the

Page 26817

 1     SDC's rules of procedure where it is stated that the SDC may make

 2     decisions and that the president of the FRY would manage or would command

 3     the army subject to the decisions of the SDC.  And there are -- there's

 4     evidence before the Court where practically in reality, notwithstanding

 5     the legal niceties, where persons who were intimately associated with the

 6     SDC spoke of decisions or of its ability to make decisions.

 7             We had the evidence of General Dimitrijevic, whatever can be said

 8     about it, and much I'm sure will be said later on, that the SDC was the

 9     highest organ that was in control of the army and made the political

10     decisions.  We have the evidence of Momir Bulatovic who at one time was

11     President of Montenegro, who testified that the SDC made the most

12     important strategic decisions.  And even within SDC meetings the record

13     shows in P -- or 4D106 that there were occasions when even the Chief of

14     the General Staff at the time, General Perisic, called on the SDC to make

15     certain strategic decisions which he thought were important to enable the

16     army to do what he thought they should do.

17             So again this is an example of Markovic almost splitting hairs,

18     as it were.  Again, the objective being to minimise the authority of

19     Mr. Milutinovic.

20             The -- in respect to personnel matters, it is probably correct,

21     as is stated in the Defence closing brief at paragraph 17, that

22     technically the decision in respect to promotions of generals was within

23     the legal ambit of the president of the FRY, President Milutinovic,

24     President Milosevic.  But even President Milosevic admitted during

25     discussions that he had to bring it to the other members, and he would

Page 26818

 1     continue to bring it to the other members of the SDC for discussions even

 2     though technically and legally the power was vested in him.

 3     Mr. Milosevic could not have changed, chopped, and pruned the army as he

 4     liked, because he had to operate, had to operate, within the parameters,

 5     the strategic parameters, as set out and outlined for him by the

 6     Supreme Defence Council.

 7             Because of the nature of Mr. Milutinovic's power and authority,

 8     what is of fundamental importance is that, and this is insofar as the SDC

 9     is concerned, is that he had the material ability to convene meetings of

10     SDC and to put on the agenda whatever he wanted to put.

11             It is one thing for the Defence to say --

12             JUDGE CHOWHAN:  I'm sorry to intervene.  Could you augment by

13     making a reference to any rule or law if that is possible.

14             MR. STAMP:  The rules of the SDC -- there were two rules of the

15     SDC.  It was amended on the 23rd of March.  There you have it.  The rules

16     of procedure of the Supreme Defence Council of 1992 is P2622.  This was

17     a -- and Article 4 is the relevant article.  This was amended immediately

18     before the NATO intervention when a state of war was proclaimed on the

19     23rd of March.  And the new rule which operated during that period is

20     P1738, Article 4, which made certain changes, but one of -- one thing it

21     did not change was the ability of an SDC member to request and insist

22     upon a meeting being convened extraordinarily and to put an agenda item.

23             So it's one thing for counsel on behalf of Mr. Milutinovic to say

24     that yes, he was a member of the SDC but he did nothing, he did nothing

25     in a positive way to further --

Page 26819

 1             JUDGE CHOWHAN:  I think it would benefit if you read the rule

 2     straight away because then it will be registered well.

 3             MR. STAMP:  Could we have P1738 in e-court, Article 4.  Okay,

 4     Article 5.  Article 5 is the provision that enables him to put forward

 5     agenda proposals.  "Members of the Supreme Defence Council or other

 6     participants may also put forward agenda proposals."

 7             Could we go to Article 3?  I do apologise.  When I first referred

 8     to the operative section I didn't have it before me.  Now I could say

 9     that Article 3 empowers him to propose that a meeting convene, and

10     Article 5 enables him to put whatever he might on the agenda.

11             We also know from the evidence that as a matter of fact, although

12     this was wartime, Mr. Milutinovic was meeting with Mr. Milosevic at least

13     once a week.  They said it was for a photo opportunity, to show that

14     they -- the government -- there was a continuity in the government.  So

15     there were no logistical difficulties in saying to Mr. Milosevic as

16     commander-in-chief of the VJ something like, "I went to Kosovo, and I was

17     told by responsible people there that the allegations I am hearing in the

18     international press that Albanians are being killed, murdered, and

19     expelled whole-scale from Kosovo is correct.  As a matter of fact, two

20     senior leaders told me that.  We need to convene a meeting of the SDC and

21     to put the issue of the conduct of the VJ in this -- in the conduct of

22     hostilities on the agenda."  It was his duty and his right, and he was

23     empowered to do so.

24             JUDGE CHOWHAN:  But are you sure that he may not have done it at

25     all, made no utterances or anything?  Are you sure?  Can you refer to

Page 26820

 1     something?

 2             MR. STAMP:  Mr. Milutinovic -- and I will find the reference

 3     later on and I think this is conceded in the Defence trial brief that

 4     there were no meetings of the Supreme Defence Council during the period

 5     of hostilities, and indeed after May, June, July when the ICT

 6     indictment -- ICTY indictment became known to them.  So that is not an

 7     issue in the case, and I will, with respect, Your Honour, find the

 8     precise reference in the Defence brief and bring it to the attention of

 9     the Court.

10             JUDGE CHOWHAN:  Thank you.

11             MR. STAMP:  Another issue, and I can't go through them all, I

12     will have to move rather quicker than I am now, another issue is

13     Mr. Milutinovic's public pronouncement that he would act as guarantor of

14     peace discussions or the political dialogue in 1998.  I invite the Court

15     to examine what he meant by this, examine what Markovic said it meant,

16     and to apply it consistently, whatever being a guarantor means, to what

17     was his duty in respect to the Kosovar Albanian population.

18             According to the Milutinovic closing paragraph -- closing brief

19     at paragraph 129, Mr. Milutinovic could act as a guarantor in his

20     capacity as president to convene meetings and accompany state delegations

21     to these meetings, to meet political leaders, diplomats, et cetera, and

22     support the negotiation efforts.  But Markovic -- Professor Markovic also

23     explained what it meant, and the -- the extract is before the Court now.

24     And I think in response to a question from the Court, if you could scroll

25     down, an obvious question, if I may say so.  The witness then tried to,

Page 26821

 1     again, when he saw the implications of what being a guarantor meant, he

 2     tried to restrict its meaning to -- to a moral position.

 3             So this is another example of Mr. -- of Professor Markovic

 4     telling you about his powers and immediately seeking to restrict it when

 5     he sees how it impacts on Mr. Milutinovic's position.  And I will not

 6     read through this extract from the transcript.

 7             The duties implied by the oath of office of president are

 8     apparent and obvious despite the Milutinovic Defence argument that the

 9     oath was not a constitutional or legal norm and that non-compliance

10     incurred no penalties.  Markovic testified that it was mandatory that the

11     president take the oath before becoming president.  He could not choose

12     his own words in assuming office, as was pointed out by one member of the

13     Court.  The mere fact that without the oath he cannot assume the office

14     gives a legal shape to the requirement, and that is law.  And this is at

15     12963 of the transcript.

16             And even Markovic in his report, at paragraph 4 .5, summarised

17     the effect, and the thing to focus on, that it was the guarantee -- it

18     included a guarantee of compliance with the constitution and the law and

19     the respect for human and civil rights.

20             So not only did he have a role to guarantee and to protect state

21     unity and integrity, but he had a role to protect his people, especially

22     if they were endangered by organs of the state.  His role as president

23     was not that of an effete being.  He was not merely decorative.

24             We see, Your Honours, from the evidence that when he saw it fit

25     to do so, he exercised himself in his role as guarantor by issuing public

Page 26822

 1     condemnations of the Kosovo Albanian leaders as irresponsible in their

 2     failure to attend a meeting that he attempted to convene, described them

 3     as amateur and transparent.  And this is a public declaration that he

 4     made.  And the relevant extract from 1D83 before the Court.

 5             JUDGE BONOMY:  Is the issue of guaranteeing the outcome of the

 6     talks dealt with in your brief, Mr. Stamp?

 7             MR. STAMP:  No, Your Honour.  I don't think it is dealt with in

 8     any full way.  Some of the documents are referred to, but not for this

 9     particular purpose.

10             JUDGE BONOMY:  Thank you.

11             MR. STAMP:  So if we apply the reality of the principle of the

12     president being a guarantor to the facts of this case, we ask ourselves

13     what should he have done to comply or to guarantee compliance with the

14     law and respect for human and civil rights when he was told by Merovci

15     and Rugova about the oppression and violence committed against the Kosovo

16     Albanian people.  Could he not have publicly demanded that officials of

17     the MUP report to him, or could he not have made that demand and if there

18     was no satisfactory response make a similar public pronouncement?  Had he

19     not done -- had he done so, had he raised the alarm, could these crimes

20     have been committed?  Had he publicly and consistently pressured the

21     perpetrators to desist and report, wouldn't during this relevant period

22     wouldn't at least some of the perpetrators be arrested, be brought before

23     the relevant court?

24             The power he had as guarantor, the authority he had as guarantor,

25     is even greater than his authority to guarantee a political dialogue,

Page 26823

 1     because he had to back it up.  The constitutional power to demand from

 2     members of the government, including the MUP, a report.  And we know that

 3     he knew that.  And he did that on one occasion with respect to the

 4     Jashari incident.  The Defence claims that he did not follow up on that

 5     because eventually he received a report that the killing of the Jashari

 6     family was committed in the course of legitimate police operations.

 7     However, I ask the Court to apply the principle consistently to a

 8     situation where there are these widespread crimes committed over a 78-day

 9     period.

10             It is a submission that Mr. Markovic said, at 13 -- at transcript

11     13333 is not correct.  He said that the president had no instruments at

12     his disposal to make the government change its standpoint.  All he can do

13     is resign.  Well, we know that Mr. Milutinovic did not.  He remained

14     there while these crimes were being committed.  But there is clearly more

15     that he could have done.

16             The development of the joint criminal enterprise will be

17     discussed, as I indicated, later on, and the Rambouillet negotiations are

18     relevant there too, so I will come back to the Rambouillet discussions.

19     There is one aspect I'd like to discuss because this particularly touches

20     on the accused Mr. Milutinovic and not merely the overall joint criminal

21     enterprise.

22             Mr. Milutinovic is recorded in an Australian diplomatic

23     correspondence to have said that bombing Serbia would lead to massacres.

24             The evidence is before the Court of Ambassador Petritsch as to

25     the circumstances in which this was made.  Ambassador Petritsch testified

Page 26824

 1     about the care that was exercised in preparing these dispatches.  The

 2     Defence suggests error.  So I put before the Court the passage in which

 3     the report is made, and I submit to the Court that the possibility of

 4     error in this entire report about Mr. Milutinovic is minimal to the

 5     non-existent.

 6             The Defence suggested at 216 that one example of the error that

 7     might creep into these reports, because, of course, they were made at

 8     intense times, times of intense negotiations and difficult times, is --

 9     and perhaps I should read it, but I will not.  The only error that the

10     Defence has found so far is a misspelling of a name.  This is at page --

11     at paragraph 216 of their closing brief where the name Rossin,

12     R-o-s-s-i-n, was misspelled as Rosen in the third paragraph of one of the

13     dispatches, Exhibit P556.

14             So the point I'm trying to make in maybe an overly convoluted way

15     is that the Defence sought to suggest that because of the intensity of

16     the situation when these reports, these diplomatic dispatches were being

17     prepared, many of them were prepared early in the morning after intense

18     talks, there was the possibility of error.  I submit on the basis of the

19     evidence of Ambassador Petritsch and Mr. Kickert as to how these

20     dispatches are created, and if you look at the text of this dispatch, it

21     does not admit in reality the possibility of error, and I further submit

22     that the Defence example of an error which they posited at paragraph 256

23     of the closing brief is, yes, an error, but it is not an error of

24     substance, the misspelling of a name in the third paragraph of the

25     dispatch which is the subject of P556.

Page 26825

 1             The Defence further claims that Mr. Petritsch's record of

 2     Mr. Milutinovic's comment in the dispatch is not reliable because he

 3     failed to mention it when he was interviewed by the OTP in May.  Your

 4     Honour, I think experience including in this case will tell us that the

 5     absence of a particular reference in a statement does not foreclose the

 6     issue as to whether or not something happened.  We have seen on many

 7     occasions, both with Defence witnesses and with Prosecution witnesses,

 8     important matters coming out in what has been become known in this case

 9     as supplementary information sheets.

10             The interview in May was also conducted in intense circumstances,

11     and it is the submission of the Prosecution that a contemporaneous

12     record, a record made hours after the event in question, in the

13     circumstances described by Mr. Petritsch is likely to be accurate and

14     have a regard to other evidence in this case.  It is accurate.

15             The point made at paragraph 218 that Mr. Kickert did not say

16     anything during his interview or when he was present at Mr. Petritsch's

17     interview in May about this comment by Milutinovic is not consequential

18     because Kickert said that he was not present at the meeting when

19     Mr. Milutinovic made the statement.

20             Also at paragraph 221, the Defence seems to be saying that

21     Petritsch never spoke to Milutinovic.  I don't think this was put to

22     Mr. Petritsch when he testified, and the Defence had the opportunity to

23     point this out -- point it out on the record if it was in fact so put.

24             The other point the Defence makes in respect to this statement at

25     paragraph 20 -- or 220 of their closing is that Mr. Petritsch transposed

Page 26826

 1     Stambuk's statement to Mr. Milutinovic.  If Your Honours will recall

 2     Milutinovic had sent in a statement that Stambuk said so and he said that

 3     in the course of the Milosevic trial as well.  When he came here for this

 4     trial, his memory was refreshed by his contemporaneous record in the

 5     dispatch that was made hours after which he had not seen at any of those

 6     occasions because they were only recently made available.  And he did

 7     forthrightly concede that he did not remember Mr. Milutinovic saying it,

 8     but having regard to their standards in preparing these dispatches, the

 9     possibility that that could be incorrect was negligible.

10             JUDGE BONOMY:  Remind me, Mr. Stamp.  Did Mr. Petritsch say that

11     he actually heard the statement being made --

12             MR. STAMP:  Yes, Your Honour.

13             JUDGE BONOMY:  -- by Mr. Milutinovic.

14             MR. STAMP:  Yes, Your Honour.

15             JUDGE BONOMY:  Thank you.

16             MR. STAMP:  No, no.  He said -- he said that the record that he

17     sees here causes him to accept that he heard it.

18             JUDGE BONOMY:  I thought he said had no personal recollection

19     of --

20             MR. STAMP:  He had no recollection of hearing it, but the

21     record -- he's prepared to accept the record that he made that he heard

22     it.

23             JUDGE BONOMY:  Thank you.

24             MR. STAMP:  So he's relying entirely on the record.

25             It is mere speculation to suggest that Mr. Petritsch was

Page 26827

 1     transposing what Stambuk said to Mr. Milutinovic, and this is merely

 2     making out Mr. Petritsch to be confused in his record-keeping.

 3             Your Honours, there is no lack of knowledge or mystery in the

 4     fact that two persons, two leading members of a Serbian state may make

 5     substantially a statement of that nature.  The evidence before the Court

 6     is that Seselj made a similar statement.  This is discussed at the

 7     Prosecution pre-trial brief at page 406.  Rugova in his testimony in

 8     Milosevic said Milutinovic substantially said the same thing to him.  The

 9     reason for the problem that -- with Albania is because of the NATO

10     bombing.

11             So that type of comment had become a slogan, a sort of mantra for

12     many of the people who were in the leadership of the FRY, and I think

13     indeed Mr. Rugova testified to that in the -- in the Milosevic case.

14     That this was not something that was not -- that was -- he was hearing

15     for the first time.

16             There are some other aspects of the Milutinovic matter which I

17     may return to with leave of the Court if time permits.  I'd like to

18     invite the Court to review the evidence as discussed in the Prosecution

19     closing brief, and I submit that the evidence there is comprehensive and

20     is conclusive and is evidence that the Court is entitled to act on.

21             If I may move on to -- to make some submissions in respect to the

22     accused Mr. Sainovic.

23             There is a significant amount of evidence in respect to the

24     conduct of Mr. Sainovic and his participation in the implementation of

25     the joint criminal enterprise.  The Defence thesis boils down to this:

Page 26828

 1     Firstly, his role in Kosovo in 1998 and up to the NATO intervention arose

 2     entirely from his position of being a federal deputy prime minister with

 3     responsibility for foreign affairs.  As a matter of fact, I think the

 4     Defence went on to suggest that it was because of this role that he was

 5     there in the first place.

 6             They say that he was involved in and sent out to Kosovo to work

 7     in the field of foreign affairs due to the rising number of foreign

 8     diplomats in Kosovo after the 16th of June, 1998.

 9             The second part of the Defence thesis in respect of Mr. Sainovic

10     is that as far as 1999 is concerned, as far as the indictment period is

11     concerned, apart from four events and his connection with respect to

12     activities with Mr. Rugova, there's nothing to link him to Kosovo.  And

13     the Defence tries to make an entirely artificial separation between the

14     different periods, as if the conduct and circumstances that prevailed in

15     one period, in a preceding period, did not have an impact on the

16     succeeding period, but I will come to that later on.

17             The first contention that he went to Kosovo and was involved in

18     Kosovo in 1998, up to the NATO intervention because of the foreign

19     presence there, because the presence of foreign diplomats, rings hollow

20     when one considers other evidence that the Defence fails to address.

21     Sainovic at an earlier state, before the foreign diplomats arrived for

22     their work in KDOM and the KVM mission had been sent down to Kosovo and

23     was involved in matters concerning Kosovo, and these were not dealings

24     with foreign affairs or foreign diplomats.

25             For instance, in his interview with the OTP, that is P605, he

Page 26829

 1     states that shortly after the Jashari incident in early 1998, he

 2     participated in a meeting with five or six Albanian representatives held

 3     in the premises of the Democratic Alliance of Kosovo in Pristina.  That

 4     is Rugova's headquarters.  This is sometime before what the Defence is

 5     saying that caused him to go down there, the KDOM mission in June.

 6             The Albanian delegation at that time was headed by Fehmi Agani

 7     and the Serb delegation was led, ostensibly at least, by Ratko Markovic.

 8     This is at page 26 of his interview, P605.  At page 28 he confirms that

 9     there was no international presence at the meeting, although he said that

10     there were -- there was international attention regarding Kosovo, and

11     there was some foreign role in the preparation of the meeting.

12             So the Defence -- and it is not a matter of principle or a

13     submission or an argument.  The Defence is factually incorrect, it is

14     submitted.

15             Further on at page 29 of his interview, Sainovic states that he

16     and past president or former president Lilic were charged with going to

17     Kosovo, and I quote:  "Were charged with going to Kosovo to get our own,

18     to monitor, to observe the situation there and to gain an insight into

19     the situation."

20             According to Mr. Sainovic, they went on two two-day visits -- or,

21     actually, on two one-day visits to the most critical areas in Kosovo,

22     Pec, Djakovica at the time, and border military posts.  In Pec, they met

23     various representatives of various departments from Klina and Istok.

24     This -- or these outings with Mr. Lilic took place shortly after the

25     meetings in Pristina in April 1998, and they are discussed -- or he

Page 26830

 1     describes these meetings at pages 29 to 33 of his -- of his statement.

 2             So Sainovic's role in Kosovo in 1998 is a little bit more than

 3     what is suggested by the Defence.

 4             Next the Defence suggests that it was entirely an independent

 5     decision on the part of federal Prime Minister at the time Bulatovic to

 6     dispatch him to Kosovo because of the foreign presence there.

 7     Your Honours are aware that it is the Prosecution's case, as Mr. Hannis

 8     outlined earlier this morning, that the mastermind of the joint criminal

 9     enterprise was Mr. Milosevic, who controlled the strings, who employed

10     and dismissed, who appointed, who placed the individuals where he wanted

11     them placed.

12             Mr. Sainovic, in his submission at paragraph 44 and thereafter,

13     quite a few paragraphs, says that the sending of Sainovic to Kosovo and

14     Metohija was the independent decision of Mr. Bulatovic.  Bulatovic wrote

15     this about sending Sainovic to Kosovo and Metohija in his book, he said:

16     "Slobodan Milosevic had two specific demands on me concerning personnel.

17             "Milosevic's second request was to charge Sainovic ... with

18     running political activities relating to ... Kosovo ..."

19             Demands, that is what he wrote, demands that Mr. Milosevic had.

20             Now, when Mr. Bulatovic first came to testify or came here to

21     testify, he claimed that the decision to send Mr. Sainovic to Kosovo was

22     entirely his.  Later on, he said in the context of the politics at the

23     time it was his decision and Mr. Milosevic agreed after he made the

24     decision.  Mr. Hannis in cross-examination showed him this passage from

25     the book.  He -- I don't know how to describe it.  I can only ask

Page 26831

 1     Your Honours to re-read his answers at 3896 to 8.  He said that what he

 2     said in the book was true.  Milosevic did make the demand but it was

 3     really his decision.  I think he goes on to explain that only he had the

 4     legal and formal power to make the decision to appoint him.

 5             Well, yes, we know that, but it comes back to what I implore the

 6     Court to always keep in mind, that it is the reality of the configuration

 7     and deployment of power and its exercise that matters and not in all

 8     cases legal niceties.  I recall the situation arose in court where the

 9     question came up how was it that Mr. Milosevic, when he was President of

10     Serbia with the same constitutional trappings, was so powerful, could do

11     so much?  He could because of various realities.  Similarly, I ask the

12     Court to look to the reality.

13             The Milosevic effect and domination of these appointments in

14     Kosovo is further confirmed by the evidence in respect to Mr. Loncar's

15     appointment.  If we look at paragraph 15 of his statement, page 25 --

16     sorry, P2521, he discusses how -- sorry, this is paragraph 14.  In that

17     paragraph he discusses how he came to be appointed.  The last sentence is

18     the important one.  He said that:  "Since Milosevic wanted me on this

19     council, he said that he would instruct Bulatovic to include me."

20             Well, of course, Mr. -- or General Loncar was duly appointed.

21     The Prosecution accepts that when Mr. Bulatovic appointed General Loncar

22     he had the relevant constitutional power to do so, but this was

23     Mr. Milosevic's appointment in reality.

24             Interestingly, I should point out to the Court that somewhat

25     similar to Mr. Bulatovic, when Mr. Loncar came to testify here, he -- he

Page 26832

 1     sought to -- to dilute the plain meaning of what he had said in a

 2     statement.  If one looks at the evidence that was read over to him and

 3     that he confirmed, he seeks to express uncertainty about Milosevic using

 4     the word "instruct," and it is somehow diluted.  But I think that the

 5     evidence shows that at least that it was at Mr. Milosevic's instigation

 6     that all of these persons were appointed to the various positions they

 7     held in Kosovo.  He did, in effect, an agree to the proposition that it

 8     was Mr. Milosevic who initiated it.

 9             This raises another issue that I'll return to later, but I could

10     highlight now because of these two examples.  It has not been entirely

11     uncommon in this case that some witnesses who have come to testify to the

12     Court have sought to dilute or negate statements that they made earlier

13     or official records that they made or the records of statements that they

14     made in formal and official circumstances.  We recently heard

15     General Dimitrijevic deny that he told Mr. Crosland that he did not agree

16     with actions taken by the security forces in Kosovo since Sainovic had

17     taken over and that Mr. Sainovic was overriding the wishes of the

18     General Staff.

19             We saw before this Court official records of the collegium

20     meetings of the VJ in which General Dimitrijevic, in a role and in a

21     context where he was -- had a responsibility to make accurate reports and

22     accurate statements because it involved the lives of his troops, the

23     record has him saying not even Sainovic or any other Sainovic can solve

24     the problems by lightly deciding to use his units.  This is another

25     example of later on when he comes to court he says, no, the record is

Page 26833

 1     incorrect.

 2             Similarly, Djakovic sought to minimise or qualify the natural

 3     meanings, the meaning of the words that he used when he made a record of

 4     the -- of the Joint Command meetings.  This is an important exhibit, an

 5     important document, a record made a senior officer at the command of the

 6     corps commander that he maintain a record, and he says he was trying to

 7     convert words spoken by laymen to military-speak.

 8             The Prosecution submits that the -- these official records, in

 9     the circumstance of this case, may be relied upon by the Trial Chamber

10     and not discarded as a -- as counsel for Mr. Sainovic submits.  And they

11     may be relied upon notwithstanding the later evidence of these many

12     witnesses.  These are contemporaneous records made officially sometimes

13     in the course of a duty to -- to advise carefully and accurately.  There

14     is nothing to indicate that they were self-serving or that there were

15     reasons for the makers to misrepresent the truth when they were making

16     these records.

17             Having said that, I wish to turn to P1468, a document which will

18     be discussed more fully by Mr. Hannis when he comes to speak about the

19     Joint Command.  This is a record of the Joint Command meetings by

20     Mr. Djakovic.

21             The Defence claims that the purpose of these meetings was an

22     exchange of information, and that's in paragraph 74, and that

23     Mr. Sainovic only spoke about matters involving foreign affairs or

24     political matters.  I invite the Court to consider P1468 notwithstanding

25     Djakovic's evidence that he was translating what laymen were saying into

Page 26834

 1     military-speak.  And it is the submission of the Prosecution that this

 2     record speaks for itself.  These examples prove unambiguously that

 3     Mr. Sainovic was not speaking merely about politics and foreign affairs,

 4     and they could not constitute an erroneous or mistaken record.

 5             Djakovic could not have made this type of mistake when he wrote

 6     down what Mr. Sainovic was saying.  And these are orders or approval

 7     given to military exercises, and this confirms the Prosecution's case

 8     that Sainovic's role in Kosovo was to exercise political oversight over

 9     the forces of the FRY.

10             Now, if we look at all of them, you know, the words of some

11     politicians might be shrouded in mystery, full of conundrums, but --

12             JUDGE CHOWHAN:  Sorry, by political oversight, what do you mean?

13     Under his auspices or what do you mean by oversight?

14             MR. STAMP:  His role was a role that was charted by Mr. Milosevic

15     to control and approve what was done by the force of the FRY in Kosovo.

16     The Prosecution's case is that he was not a foot soldier.  He was not

17     involved directly in the chains of command of the police or the army in a

18     direct way, and that is why I use the term "political oversight."  He had

19     the power, though, to approve their operations or to insist that some

20     operations be undertaken, although he was not involved necessarily or

21     there was no need for him to be involved in how these operations took

22     place and the mechanics of these operations.  And it is submitted that if

23     that is borne in mind, then some of the rhetorical questions that are --

24     that one finds in the Sainovic closing brief as to why if Sainovic was in

25     command he did not attend these military meetings and why if he was in

Page 26835

 1     command he did not attend these police meetings, in his answer he's not a

 2     soldier and he's not a policeman.  He's not out in the field conducting

 3     operations.  That is somebody else's department.  Different elements are

 4     responsible for their own -- for implementation of their own part or

 5     parts of the JCE, but he has overall control because he is the confidant,

 6     the political confidant of Mr. Milosevic in Kosovo and that was well

 7     known.  That, Your Honour, is discussed, the fact that it was well known

 8     by a variety of people in Kosovo at the time is discussed in the

 9     Prosecution's closing brief.  I don't have the precise citation of the

10     paragraph in the crossing brief, but that was the understanding of many

11     people who had to work in Kosovo at the time.

12             One must recall when -- when assessing Djakovic's evidence that

13     perhaps there might be errors in the records that he made and in

14     considering Defence's submission that the records should be discarded,

15     that Djakovic was also a member of the Joint Command, and he also does

16     have an interest to minimise the role of the Joint Command in the -- in

17     some of the operations.  The Joint Command at that time was not a body

18     that was set up under any legal or constitutional authority.

19             I invite the Court, without going through the details, to review

20     Loncar's evidence in respect to Sainovic.  He -- perhaps I could ask the

21     Court to have a brief look at this.

22             Loncar, in his statement P2521, paragraph 28, you look at the

23     first paragraph -- that's paragraph 38 before the Court, it's a general,

24     former general in the VJ posted in Kosovo.  He says:  "I do not know

25     about the nature of Sainovic's contacts with these people, but I assume

Page 26836

 1     it had something to do with the fact that Sainovic was responsible for

 2     Kosovo.  I presume it was Milosevic that was giving him the authority."

 3             When he came here to testify, asked that the expression "de

 4     facto" be inserted to qualify what he was saying about Mr. Sainovic's

 5     authority, the fact that Mr. Sainovic was responsible for Kosovo, and in

 6     his testimony at 7603 to 4, he effectively confirmed that the de facto

 7     situation was that Sainovic had authority from Milosevic in Kosovo.

 8             So Loncar at least gives credible evidence about Sainovic's power

 9     and his work in Kosovo, and that evidence contradicts the Defence claim

10     at paragraph 64 of its final trial brief that Sainovic -- Sainovic's

11     power and role are roles from his office of deputy prime minister with

12     responsible -- responsibility for foreign affairs.  It was Loncar's

13     evidence, again this is discussed in the Prosecution's brief, that

14     Sainovic tried to do much, much more than his various legal functions

15     strictly compelled him to do.

16             There were attacks on -- on Mr. Ciaglinski in respect to his

17     statements.  This is -- much of this has been set out in the

18     Prosecution's closing brief.  The evidence of Mr. Ciaglinski and his

19     ability to make a judgement as to Sainovic's position, it is submitted,

20     is clearly set out in the brief.

21             There's also an attack on the General -- we'll describe as

22     General DZ who expressed the opinion that Sainovic was in charge of

23     Kosovo.  Your Honours, to save time I will not go through, as I didn't

24     plan to.  That attack -- much of that again is discussed in the closing

25     brief.  I just would like to remind the Court that General DZ could and

Page 26837

 1     did give specific incidences where -- which demonstrated to him that

 2     Sainovic was exercising effective power and control in -- in Kosovo.

 3             So, I think a careful analysis of the evidence explodes the

 4     Defence thesis that Sainovic went down there at the behest of the federal

 5     Prime Minister Bulatovic to be engaged in diplomatic affairs.

 6             And then we come to the NATO bombing.  As I indicated, it's an

 7     entirely artificial separation to say that we should chunk these time

 8     frames into different periods and -- and not consider how one impacts on

 9     another.  One of the fundamental, and this is by way of example, one of

10     the fundamental aspects of the Prosecution's case is that the knowledge

11     by the participants of the excessive force employed by the force of the

12     FRY in 1998 impacted on their state of mind and is evidence of their

13     intention in 1999, because they would have known if they unleashed those

14     same forces in similar circumstances with even less control, then similar

15     and worse than occurred in 1998 would have occurred in 1999.  So there

16     cannot be a too strict separation of these periods, the events involved

17     to some degree.

18             I'd like to put before the Court something that one might call

19     Sainovic's time line in 1999.  I'll do it, perhaps it's unnecessary.  I

20     do it because in opening the Defence case, Mr. Fila, on behalf of

21     Mr. Sainovic, suggested at transcript 13791 that during that period

22     Mr. Sainovic spent so much time outside of Kosovo that it would be absurd

23     to suggest that he had any influence or control of the events in Kosovo.

24             I remind the Court of evidence set out in the pre-trial brief

25     that Sainovic was not engaged in the day-to-day and direct operation of

Page 26838

 1     the forces in the field, and I ask you -- or I submit to you that if you

 2     look at his appearances in Kosovo, one will see that for his role, his

 3     political role, he was there on sufficient occasions to exercise that,

 4     and that the Defence evidence, which I'm sure you'll be directed to, that

 5     he was primarily or almost entirely engaged in Bor, in his home

 6     municipality of Bor during that period is not to be accepted, or at least

 7     he did find enough time to travel and to remain in Kosovo at critical

 8     points during a war.

 9             There are, Your Honours, other meetings I have noted here but did

10     not put it here.  We have before the Court -- or evidence of

11     Obrad Stevanovic's work notebook, P1898, where he spoke of another

12     meeting in Milosevic's office that was attended by Stevanovic and

13     Sainovic in May 1999 where the task of mopping up the terrain was

14     discussed.  I should point out in this time line those and the meetings

15     of the 4th of May and the 17th of May, were meetings in Belgrade.  I will

16     check to correct myself.  I think the meeting on the 4th of May was a

17     meeting in Kosovo where Mr. Sainovic escorted Mr. Rugova to Belgrade and

18     the meeting on the 17th of May was entirely Belgrade.

19             Mr. Sainovic did have time and opportunity, contrary to what the

20     Defence was submitting.  The -- the --

21             JUDGE BONOMY:  I wonder -- I wonder, Mr. Stamp, if we can deal

22     with that after lunchtime.  Would that be convenient?

23             MR. STAMP:  Yes, Your Honour.  This would be a convenient moment.

24             JUDGE BONOMY:  So we will adjourn now for an hour, and we will

25     resume at a quarter to 2.00.

Page 26839

 1                           --- Luncheon recess taken at 12.47 p.m.

 2                           --- On resuming at 1.46 p.m.

 3             JUDGE BONOMY:  Please continue, Mr. Stamp.

 4             MR. STAMP:  Thank you, Your Honours.  May it please you.

 5             The question arises in respect to the period of the NATO

 6     intervention is what was Sainovic -- Mr. Sainovic doing at these meetings

 7     that he attended.  According to the reports of the meetings we have,

 8     Sainovic's role was the role of someone who was attuned with the

 9     operations of the security forces in Kosovo and was exercising civilian

10     control over them.

11             If we look at the meeting of the 4th of April, 1999, of the MUP

12     staff, notwithstanding the Defence claim in its closing brief that

13     Sainovic's visit did not have any implication on the work of the MUP, the

14     Court, it is respectfully submitted, can review what he said at this

15     meeting.  This is the meeting of the 4th of April, 1999, and the minutes

16     are in P1989.  And among the things that Sainovic said, if I may quote:

17     "It is necessary for the first stage of the anti-terrorist operations to

18     be completed today for the purpose of active defence and for the

19     protection of the territory and the border in case of a breakthrough by

20     the aggressor deep into the territory of the FRY."

21             Cvetic, the witness Cvetic was present at the meeting and

22     testified at transcript 8081 in a manner which was consistent with the --

23     with the minutes that I just mentioned, but that he was even stronger.

24     He said that Sainovic pointed out that all planned operations had to be

25     concluded by that day and that the MUP would thereafter move on to other

Page 26840

 1     tasks.  So Sainovic was giving directives at these meetings.

 2             If we look at the meeting of the 7th of May, the MUP meeting, and

 3     the record of that meeting which is P1996, we see that Minister Sainovic

 4     gave a very long speech.  The speech did cover political matters.  It did

 5     cover matters involving other areas outside of security, but it also had

 6     statements in it that only someone who was intimately involved with the

 7     operation of the security forces and had a capacity or responsibility to

 8     direct their work would say.

 9             At page 2 of P1996, which is the minutes for the 7th of May,

10     1999, MUP staff meeting, he stated that the KLA had been destroyed in

11     anti-terrorist combat and operations conducted by the police force, and

12     then:  "After Operation Jezerce there will no longer be a large terrorist

13     stronghold except for 30 to 40 smaller-scale strongholds numbering 500 to

14     700 terrorists in areas in which the secretariats themselves will destroy

15     and completely neutralise them."

16             Later on he said, and this is in the nature of a directive,

17     after, that is:  "After Operation Jezerce, all detachments of PJP units

18     will return to their secretariats and in cooperation with the VJ work on

19     destroying the remaining terrorist groups.  In addition to destroying the

20     so-called KLA and terrorists, the main objective of anti-terrorist

21     operations would be to ensure peace in Kosovo and Metohija."

22             Again at page 3 he told them that:  "The relationship of the VJ

23     and the police had been defined and settled and this is functioning well

24     and detachments are returning to places where they are stationed on the

25     territory of the secretariats of the interior in the entire region of

Page 26841

 1     Kosovo and Metohija in order to maintain law and order."

 2             Page 4, he speaks about the Yugoslav army and he says:  "The

 3     Yugoslav army has been ordered that all units be subordinated -- all VTO

 4     units be subordinated to VJ brigades with the tasks of working to protect

 5     the features, roads, et cetera, outside towns."

 6             So this is -- this is a record of a participation in meeting

 7     which goes well beyond that of a foreign affairs plenipotentiary.  He is

 8     intimately aware of what is going on and he is giving directions or at

 9     least approval of plans, at least approval of plans for future action.

10     This is within his role as a political director, political operative.

11             The -- there was a lot of testimony about his presence and

12     participation at the meeting on the 17th of May, too much to review here,

13     but of course -- but at least I ask the Court to consider the question of

14     what was he doing in a meeting of this nature on the 17th of May?  What

15     would his role be?

16             It was held at the command post of the Supreme Command in

17     Belgrade.  The other participants were President Milosevic,

18     General Ojdanic, Rade Markovic the head of the DB -- RDB, General

19     Pavkovic, General Farkas, Colonel Gajic, General Vasiljevic.  These are

20     the prominent -- or some of the prominent members, most prominent members

21     in the security forces and President Milosevic.

22             So Sainovic was the only politician there with Milosevic, and it

23     is respectfully submitted that it is inconceivable that one could submit

24     that his presence there is for any role involving foreign affairs.

25     Indeed, Your Honours, it is apparent that his role there must have been

Page 26842

 1     as a result of his responsibility for the operations of the security

 2     forces.  And the comments that he is reported to have made at this

 3     meeting demonstrate that he's well informed and that he exercised

 4     authority and influence.  Your Honours are quite entitled to draw

 5     appropriate inferences from the evidence as to what his authority was.

 6             According to Vasiljevic and the notes he took, Sainovic made

 7     statements including, "We have ordered that reports be submitted in all

 8     sectors about what's happening and what needs to be investigated."  And

 9     he spoke of the task of working on cleaning up the terrain.  He said that

10     it would be good if someone else got engaged down there like some kind of

11     a supervisor.  He spoke further, according to Vasiljevic, of problems

12     they were having down there with the uniforms of some groups and the

13     difficulties in controlling persons wearing certain uniforms.  This is in

14     P2592.

15             He -- in regard to reports that Arkan's men were being sent to

16     Kosovo Polje, Mr. Sainovic said he would check out the veracity of the

17     report.

18             Pavkovic suggested forming a body to investigate the allegations

19     made against the MUP and the VJ, and Sainovic agreed, according to

20     Vasiljevic.

21             When Vasiljevic reported that the SAJ was integrating into their

22     force groups such as the Skorpions which had not previously fulfilled

23     requirements for serving in the MUP and that they had been brought to

24     Serbia -- or brought to Kosovo, Sainovic commented that it was obvious

25     that the SAJ had its own habits when it came to forming the reserves.

Page 26843

 1             Lastly, last example, according to Vasiljevic there was a

 2     preliminary meeting on the 16th of May, 1999, and at that meeting

 3     Pavkovic said that he had informed Sainovic that a group of Skorpions and

 4     Boca in Prolom Banja wearing NATO-type uniforms and the insignia of SAJ

 5     were active.  Pavkovic had also said that he had had ordered the military

 6     organs to establish responsibility in respect to these bodies and that he

 7     had informed Mr. Sainovic about everything that he had done.

 8             Why, the question arises, would it be the responsibility -- would

 9     Pavkovic have that responsibility to inform -- of informing Sainovic of

10     these types of operations?

11             You have heard a lot of evidence on the meeting of the 1st of

12     June, 1999.  The meeting was discussed by General Vasiljevic.  It is set

13     out in his evidence in P2600.  And before this screen is 2D387 which I

14     will get to, but P2600 I also comment for Your Honours' consideration.

15     This is Mr. Vasiljevic's original statement about that meeting which he

16     accepted when he came to testify first and basically said that this was a

17     meeting where Generals Lazarevic and Lukic gave reports.  The meeting was

18     presided over by Pavkovic.  And having heard the report and heard the

19     plans, Pavkovic -- sorry.  May I repeat the proposal -- the submission I

20     was making.

21             This was a meeting where, among others, General Lazarevic and

22     General Lukic submitted reports with plans and proposals.  Mr. Sainovic

23     was present, presided over the meeting, and Mr. Sainovic expressed

24     approval of the plans.  And the evidence in P2600 on that meeting is

25     quite clear.

Page 26844

 1             It is true that later on an attempt was -- well, that later on

 2     the Defence submitted another statement from General Vasiljevic in

 3     respect of that meeting in which some of the points in respect to

 4     Sainovic's role are not made as strongly and that statement, almost the

 5     entirety of it, is before the Court now.  Nonetheless, in this last

 6     statement General Vasiljevic did agree that Sainovic accepted and agreed

 7     that everything that he had heard should be proceeded with as planned.

 8     So again, as is not uncommon, we'll see there was some dilution of the

 9     evidence, but nonetheless, nonetheless, the essential elements still

10     exist in regard to this part or this aspect of the evidence.

11             The pre-trial brief discusses clear the meeting with Rugova.

12     Maybe one comment I could make in respect of that meeting is Merovci

13     testified that during all of these meetings, and there were several, it

14     was clear that Mr. Sainovic was receiving instructions and applying

15     instructions from Mr. Milutinovic.

16             There are some quick matters in respect of Mr. Sainovic which I

17     will move through.

18             The Defence in submitting that Mr. Sainovic was helpful and

19     presented a helpful face in the negotiating party for the group from

20     Serbia and the FRY at Rambouillet and other discussions referred to the

21     evidence of Mr. Byrnes.  The point the Defence is trying to make is that

22     Mr. Byrnes is saying that Mr. Sainovic is sincere.  The other point that

23     the Defence is trying to make is Mr. Sainovic is not in control.

24             If one looks at the evidence of Mr. Byrnes and this is quoted

25     quite fully in paragraphs 550 to 551 of the Sainovic closing brief,

Page 26845

 1     Mr. Byrnes is saying that he remembered distinctly pushing Mr. Sainovic

 2     to try to get the Serbian delegation to be more flexible as it was his

 3     view that the NATO threat of bombing Serbia was not a bluff and Serbia

 4     was unlikely to get a better deal than what they were being offered at

 5     Rambouillet.  And he distinctly remembered Mr. Sainovic sitting there

 6     thoughtfully and finally responding to my question with words something

 7     to the effect that he did not have the authority to be that flexible,

 8     that there were too many constraints imposed on him by Belgrade, and at

 9     the end of the day, there was nothing he could do in that direction.

10             This shows as the Prosecution submitted in the indictment and

11     pre-trial brief that he was political head.  He's speaking about what he

12     can do and what he can't do, and he speaks of the directions he gets from

13     Belgrade.  Indeed the evidence is that in the course of the Rambouillet

14     discussions he was the one who was permitted to leave, to return to

15     Belgrade to consult with Mr. Milosevic.  Further evidence from

16     Mr. Petritsch which is accepted by the Defence in their pre-trial brief

17     from paragraphs 535 and thereafter is that Mr. Sainovic was the one they

18     could go to to salvage the negotiations where there appeared to be

19     insurmountable difficulties, two times in particular, one at the

20     beginning of the talks, one at the end when they needed to get the -- the

21     Serbian group to budge.  It was Mr. Sainovic they went to and

22     Mr. Sainovic who did his magic, so to speak.

23             The Defence raises these points, I think, to suggest that he was

24     malleable, but they also show the core submission of the Prosecution,

25     that it was he who was politically in charge and that he could get things

Page 26846

 1     or get changes made.

 2             A huge broadside was made against the character of the witness

 3     Cvetic.  He was the only SUP witness who testified -- or SUP chief who

 4     testified on behalf of the Prosecution and he took -- he gave evidence

 5     about the Joint Command, about Mr. Sainovic and his role and about the

 6     role of Mr. Lukic.  And his evidence, it is submitted, is important

 7     evidence.

 8             The attack on his credibility is made primarily in respect to his

 9     evidence that at a meeting of July -- of June or July 1998 either

10     Mr. Djordjevic or Mr. Obrad Stevanovic announced that a Joint Command had

11     been set up and that the members of the Joint Command included

12     Mr. Sainovic.  I see it was the testimony of Cvetic was at a MUP meeting

13     of the 22nd of July, 1998, Djordjevic announced the formation of the

14     Joint Command and that Sainovic, Minic, Lukic, and Pavkovic composed the

15     command.

16             His credibility is attacked.  It is said that this is not

17     mentioned in the minutes of that meeting.  Your Honours, I invite the

18     Court to have a look at the minutes of that meeting.  It is 6D798.  These

19     so-called minutes comprise a page and a half of notes.  We have seen

20     minutes of MUP meetings, and it is obvious that this is incomplete.

21     Indeed when it was shown to the witness Mijatovic, Mijatovic in spite of

22     his -- his own credibility issues indeed was the one who used the word

23     "obvious," "obviously incomplete," he said in answer to questions about

24     those minutes at 22315 to 6 of the transcript.

25             Cvetic was also attacked because Mr. Mijatovic who was at that

Page 26847

 1     meeting said, well, he did not hear any such thing.  A slew -- many

 2     witnesses were called by the Defence, former members of the police in

 3     Kosovo to testify, and many of them forgot about the Joint Command.  Some

 4     didn't know it.  Many of them gave highly questionable evidence about

 5     what the Joint Command was.  Mr. Hannis will more fully address that.

 6     However, I point out that Mr. Mijatovic is not the type of witness that

 7     one should use to attack the credibility of one such as Cvetic.  He was

 8     the witness it should be recalled who in the course of his testimony had

 9     to be reminded by the Trial Chamber about his solemn undertaking to speak

10     the truth and warned of consequences, and this was in respect to his

11     testimony about the minutes of that meeting.

12             Again Vucurevic and Adamovic were witnesses who testified at that

13     meeting, that is Dusko Adamovic -- sorry.  They were persons who

14     testified here about that meeting, and they claim that they heard no such

15     thing.  Again, these are not credible witnesses.  I would invite the

16     Court to review the excellent cross-examination of Mr. Adamovic by

17     counsel for Pavkovic.  Mr. Pavkovic -- Mr. Adamovic started out by saying

18     that he knew very little about the liaison between the MUP and the VJ,

19     and it took the able efforts of counsel to eventually get him to agree

20     that not only did he know about it but he was the main liaison who was

21     passing over the maps.  Not, it is respectfully submitted, a credible

22     witness.

23             So these are the -- Bogunovic is another person who was not

24     present at that meeting but who came and in response to very leading

25     questions by counsel accepted that Cvetic was a bad man, a bad superior,

Page 26848

 1     a man who was locked up in his office.  Bogunovic, be it recalled, was

 2     the witness who failed to remember that he attended a meeting of the MUP

 3     described in P1996, where he even delivered a report which is recorded.

 4     He denied giving that report although the minutes have been clearly --

 5     have him down clearly as a participant.

 6             Many of these witnesses, Your Honours, many of the testimonies

 7     given by the Defence witnesses who were subordinates of Mr. Lukic or

 8     Mr. Lazarevic or General Pavkovic is not -- is the evidence of persons

 9     who are not credible.

10             Your Honour, there were -- or is there a series of rhetorical

11     questions at paragraph 617 of the Sainovic closing brief I had intended

12     to address but I think, Your Honour, and I would submit that if one

13     starts from the position that Mr. Sainovic was not a soldier, he was not

14     a policeman, he was not there in the day-to-day operations on the ground,

15     then these questions become redundant, and the other questions about why,

16     if he was there in a political role to coordinate why there were problems

17     in resubordination of the MUP, problems with the coordination itself as

18     is indicated by the case of the evidence, are questions which -- which

19     are not -- well, which the answer is -- I'll answer the question.

20     Milutinovic -- not Milutinovic, Mr. Milosevic, who is accepted by all

21     here to be the person who had dominant power, he, too, had problems with

22     the subordination.  He, too, had to issue an order in respect to the

23     subordination.  This order was not specifically complied with for a long

24     period of time.  So the fact that there were problems with

25     resubordination does not mean that Sainovic did not have a role and did

Page 26849

 1     not have authority, because even Milosevic had problems with that when

 2     the real circumstances of war confronted him.

 3             So those questions, I think, are not questions that present any

 4     real difficulty.  The evidence in respect to Mr. Sainovic is clear that

 5     he exercised real authority, and again as the situation applies to

 6     Mr. Milutinovic, I respectfully submit and ask the Court to look to the

 7     reality, the reality as described by the witnesses and not to the facade

 8     of the technical niceties which the Defence would present.

 9             I -- we had indicated that we would move immediately to

10     Mr. Lukic, but I think we have decided to stick by the order and to deal

11     with the military witnesses and then get back to Mr. Lukic and also the

12     general comments about the evidence.

13             Thank you very much, Your Honours, may it please --

14             JUDGE CHOWHAN:  I have just to clarify something for my

15     understanding.  Now, you said that he had the powers not only what you

16     called them as a political -- for political overseeing, but also for

17     bringing about changes.  Could you help me understand this a little more

18     by -- if you kindly could refer to something to help me in --

19             MR. STAMP:  When I spoke about --

20             JUDGE CHOWHAN:  The changes you said.  He could bring changes.

21             MR. STAMP:  When I spoke about the changes --

22             JUDGE CHOWHAN:  No, because you say -- I'm sorry, I'm

23     interrupting.  When we heard, when we saw one of the excerpts from a

24     statement with respect to him being told by the VJ and MUP about things

25     and, yes, he agreed that's what is said, but then later commenting you

Page 26850

 1     said he could even bring about changes.  Now, that I don't know.  I'm a

 2     little confused about it.  Can you clarify, please?

 3             MR. STAMP:  Yes, Your Honour.

 4             JUDGE CHOWHAN:  With reference to something tangible.

 5             MR. STAMP:  When I spoke about him effecting changes, I was

 6     speaking about his role at the negotiations at Rambouillet.  The Defence

 7     in their closing brief sought to suggest that Mr. Sainovic was in fact a

 8     helpful partner in the negotiation process.

 9             JUDGE CHOWHAN:  No, but that you thought was his role as having

10     the foreign affairs with him.  But when you talked of changes, you didn't

11     mean changes which were in certain planning or in something which was

12     organised by VJ or by MUP?  You didn't mean that?

13             MR. STAMP:  No, no.  I was referring to Rambouillet.

14             JUDGE CHOWHAN:  Okay.  Thank you very much.  No, it's clear.  If

15     you're only referring to that, but not to other changes.

16             MR. STAMP:  No, no, Your Honour.

17             JUDGE CHOWHAN:  But then you see the point is that he was

18     agreeing to certain plans which were put up before him.

19             MR. STAMP:  Yes.

20             JUDGE CHOWHAN:  So would you like to say anything about any other

21     overt act in this respect coming from his side?

22             MR. STAMP:  We see -- we see primarily in his role in 1998 which

23     continued, it is submitted, and I had put before the Court many examples

24     of the -- of what he's recorded as having said at these Joint Command

25     meetings.  Many of them, it is the Prosecution's submission, are

Page 26851

 1     unequivocally instructions, instructions as to what the security forces

 2     need to do.

 3             JUDGE CHOWHAN:  When he said conclude it in such-and-such time or

 4     do it in certain time, that's what you mean?

 5             MR. STAMP:  Yes, Your Honour.

 6             JUDGE BONOMY:  Thank you, Mr. Stamp.

 7             Mr. Hannis.

 8             MR. HANNIS:  Thank you, Your Honour.  I will now turn to

 9     General Ojdanic.

10             General Ojdanic was the top soldier, the highest ranking

11     uniformed member of the VJ from his appointment as chief of the

12     VJ General Staff on 24 November 1998.  He was also chief of the

13     Supreme Command Staff during the war from 24 March 1999.  In that

14     position he was the VJ's representative at the Supreme Defence Council

15     meetings.  He had de jure and de facto command over the VJ subordinated

16     units.  And we say he contributed to the joint criminal enterprise in

17     various ways.  He directed VJ combat operations.  He was involved in the

18     arming of non-Siptars.  He played a role in the Supreme Defence Council

19     and Supreme Command.  He participated in violation of the October

20     agreements, and he also contributed to the JCE by failing to take certain

21     actions regarding General Pavkovic.

22             Now, first I want to talk about some of the directives that were

23     issued by General Ojdanic and the Supreme -- well, the General Staff and

24     the Supreme Command Staff both before and during the war.  The first one

25     I would like you to look at or refer to is Grom 3 directive on the 16th

Page 26852

 1     of January, 1999.  This is Exhibit 3D690.  I'm also going to look after

 2     that at the 9 April 1999 directive which is P1481, and the 29 May

 3     directive P1465.  But let's start with Grom 3, 3D690.

 4             This was General Ojdanic's directive dated the 16th of January,

 5     1999, and it's described as being "to prevent introduction by force of a

 6     multinational NATO brigade."  In that document we saw that the task for

 7     the 3rd Army, at least in stage two of the directive, was to "destroy

 8     Siptar terrorist forces in the area of Kosovo and Metohija."  And

 9     subsequent to this directive issued by General Ojdanic, it's followed up

10     by General Pavkovic as command of the 3rd Army and when he issued his own

11     Grom 3 order on the 27th of January, 1999, which was not only to prevent

12     the NATO brigade being introduced but also for "destruction of Siptar

13     terrorist forces in Kosovo."

14             Now, the Grom 3 from General Pavkovic is Exhibit 5D245.  As I

15     said, dated the 27th of January.  The phase 2 task assigned to the

16     Pristina Corps by General Pavkovic was "to destroy the Siptar terrorist

17     forces in Kosovo."  And in item 5.1 of that order we saw that the

18     Pristina Corps was to "engage the armed non-Siptar population, to secure

19     military features and communication routes, and for the defence of

20     populated areas with non-Siptar population."

21             Subsequent to the issues of that Grom 3 order, about four days

22     later General Pavkovic issued an order to the Pristina Corps and

23     General Lazarevic to carry out various tasks.  One of those is found at

24     item 5 in that exhibit, 5D49, and the Pristina Corps ordered to draft a

25     plan for "destroying Siptar terrorist forces in the Drenica, Lab and

Page 26853

 1     Malisevo sectors."  This plan was also to ensure complete coordination

 2     with MUP units and was ordered to be done by 15 February 1999.

 3             And in evidence we have Exhibit P2808.  We say, Your Honours,

 4     this is Lazarevic's version of Grom 3 pursuant to the order by

 5     General Pavkovic.  You may recall that Exhibit P2808 is a rather lengthy

 6     order by General Lazarevic to break up and destroy Siptar terrorist

 7     forces in the sector of Malo Kosovo, Drenica, and Malisevo, and it's --

 8     it carries the strictly confidential number 455-1.  You will recall we

 9     had a lot of discussion and a lot of evidence about the numbering of

10     these Pristina Corps documents, and the Joint Command orders that we see

11     from the 22nd of March and thereafter all bore that number 455.  So this

12     is the first in that series related to the Joint Command orders which we

13     say led to the crimes charged in the indictment.

14             This order also indicated that the subordinates receiving the

15     order were to engage armed non-Siptars to secure military facilities and

16     communications and defend places with non-Siptar populations.

17             Just as an example of how this order was carried out further down

18     the line, in item 5.5 there is a task for the 549th Motorised Brigade

19     under Colonel Delic to carry out a blockade along with parts of

20     Battle Group 21, and if you'll make a note, Your Honours, if you care to

21     see how that is followed through later on, Exhibits P2015, 1981 and 1995

22     will allow you to track how the order gets from the very top down to the

23     ground level.

24             Now, related to this we see something that appears to be on the

25     MUP side, and that is a document dated the 19th of February, three days

Page 26854

 1     later.  This is Exhibit number 6D716.  It's titled "MUP staff," and it is

 2     an order "to break up and destroy forces of Albanian terrorists in the

 3     sector of Malo Kosovo, Drenica, and Malisevo."  And if you look at it

 4     side by side with General Lazarevic's P2808, you will see it echos the

 5     task called for there.

 6             This was a bit of a mystery for all of us I think until

 7     Colonel Djakovic came and testified, I guess General Djakovic now, and

 8     told us that this was a document that was drafted by him.  You'll find

 9     that in transcript at page 26930.  He told us it was drafted by him and

10     given by him to Dusko Adamovic from the MUP.  And he told us in answering

11     a question asked by you, Mr. President, that this is a form -- a form of

12     order, because, after all, we have to admit that the army was more

13     trained from that point of view in terms of writing such documents so we

14     simply wanted to help, to help the members of the MUP so that they could

15     formulate these documents as they should be formulated in tentative

16     terms.

17             And if you look at the particular task contained within that

18     document, for example, in item 1 you'll see a task for the

19     22nd Detachment of the PJP where they were going to be supported by

20     Battle Group 211, Colonel Gergar.  And you will see in items 5.13 and

21     5.14 task in the area of Bela Crkva by the 549th and the 549th Brigade,

22     the 243rd, and the 37th PJP Detachment, which line up later with the

23     crimes that occurred at the beginning of the NATO campaign.

24             Now, further support of that was from the testimony of

25     Colonel Zivaljevic from the PJP who talked about having seen the content

Page 26855

 1     of this order in his meeting with Colonel Gergar and having received a

 2     map extract, and he told us that he recognised all the details in that

 3     exhibit as being what he was given to carry out later on when he actually

 4     engaged in operations in Kosovo.

 5             P1966 is one of our first Joint Command orders at the -- right at

 6     the beginning of the conflict which called for routing and destroying the

 7     Siptar terrorists in the Malo Kosovo area pursuant to that original

 8     Grom 3 order.  That's strictly confidential number 455-56.  And you'll

 9     recall that that was the one to which General Lazarevic wrote an

10     amendment which is in Exhibit P1967 and that one was signed by him.

11             We say looking at these documents you follow the chain from that

12     directive that issued from the very stop, the Supreme Command Staff or at

13     that time the General Staff of the VJ from General Ojdanic.  It goes

14     through Pavkovic who issues his own Grom 3, orders Lazarevic to prepare

15     an order to implement that, and you have Lazarevic's order in P2808, and

16     it eventually gets implemented in joint VJ and MUP actions on the ground

17     by the likes of Colonel Gergar and Colonel Zivaljevic or by Delic,

18     Vukovic, and Mitrovic in late March 1999, and those actions link up to

19     the crime sites and the crimes alleged in the indictment.

20             As I said, further evidence of that is found in Exhibits P2015,

21     P1981, and P1995.  And if I may, I would like to direct you to some

22     points in connection with each of those documents.

23             P2015 is a Joint Command order number 455-63, dated the 23rd of

24     March, 1999, directing the subordinate VJ units to provide assistance to

25     the MUP in destroying Siptar terrorists in Orahovac, Suva Reka and

Page 26856

 1     Velika Krusa.

 2             The 549the Brigade in joint action with the MUP is to carry out

 3     an attack from Bela Crkva, et cetera, and destroy the Siptar terrorists

 4     in Celina, Mala Krusa, Pirane, et cetera, all sites which are named in

 5     our indictment and from which we've heard evidence about.  And the order

 6     also says the Joint Command shall command those actions.

 7             P1981 is Colonel Delic's order pursuant to that Joint Command

 8     order in P2015.  It is dated the 23rd of March, 1999, and General Delic

 9     orders that his Battle Group 1 is given a task in item 5.4 of that order.

10     In cooperation with one company of the 37th PJP detachment and two

11     platoons of the MUP energetically attack, overpower and destroy the

12     Siptar terrorists in Mala Krusa, destroy the Siptar terrorists in the

13     village of Pirane.  Battle Group 2 of the 549th in cooperation with the

14     4th Company of the PJP is to "carry out an energetic attack and search

15     Bela Crkva, come out on a certain line and then "destroy the Siptar

16     terrorists in the village of Celine and the village of Nogavac."  Again,

17     this is dated the 23rd of March.  Readiness to start that action was to

18     be at 0700 hours on the 25th of March, 1999.

19             And we say, Your Honour, that activity, that order matches up

20     precisely with the crimes alleged in our indictment in that area and as

21     testified to by villagers from those crime sites.  But that's not the

22     end.  We have General -- or then Colonel Delic's post-action analysis

23     regarding that order which is found in Exhibit P1995.  That's dated the

24     30th of March, 1999.  It's entitled submission of the analysis of the

25     operation of the 549th Motorised Brigade in routing of the Siptar

Page 26857

 1     terrorists in the general area of Rotimlje and lifting the blockade on

 2     the Suva Reka-Orahovac road.  He tells us in the period from the 25th of

 3     March until the 29th of March, 1999, pursuant to the order by the

 4     commander of the 549th and pursuant to the order by the Pristina Corps,

 5     strictly confidential number 455-63, which is Exhibit P2015, the Siptar

 6     terrorists were routed from that general area and full control has been

 7     established in the territory from the Prizren-Zrze road up to the Suva

 8     Reka-Orahovac road.

 9             Now, I'd like to show you an excerpt and then give you a graphic

10     representation of what that looked like.  You should see on the screen

11     now that excerpt that I just read and if we could go to a map.  This is

12     from the Kosovo atlas showing that area, and we will move in in our next

13     photograph.  You will see on the lower left we've now highlighted in sort

14     of bright pink the Prizren-Zrze road, and the Suva Reka-Orahovac road to

15     show the outer borders of this area that Colonel Delic tells us they have

16     now established full control over in the course of these actions.

17             And if we could go to the next slide.  We've drawn a border on

18     the remaining two edges that are consistent with the road from Zrze to

19     Orahovac and from Pristina to Suva Reka to show you the area that that

20     appears to be describing as being under the full control.

21             And one more slide, please.  We've now indicated various

22     locations named in the indictment where crimes occurred, Bela Crkva,

23     Nogavac, Celina, Mala Krusa, Pirane, and Landovica.  All these in the

24     areas where the operations were carried out by the VJ and Colonel Delic

25     in supporting the MUP.

Page 26858

 1             And in that post-action analysis I need to indicate a number of

 2     other things to you.  Colonel Delic told us that involved there were some

 3     2.020 men, I think about 1.000 MUP and 1.000 VJ, some 21 tanks, six

 4     122-millimetre howitzers, and you'll see in the report itself other

 5     armoured vehicles and heavy weapons.  Colonel Delic told us that the

 6     operation or the task was "completed successfully" and that the

 7     commanding was "under the Joint Command of the MUP and the VJ."

 8             One other interesting note I'd like to bring your attention to

 9     because I did discuss this with General Delic when he was here, not only

10     in relation, I think, to this specific action but to a couple of others

11     earlier in March before the war started.  Page 2 of Exhibit P1995.  He

12     estimates that about 85 Siptar terrorists were killed and there were no

13     prisoners.  I think on operations described in Exhibits P1998 and 1999

14     you will also see that a number of terrorists were killed but no

15     prisoners were taken by the 549th in joint actions with the MUP.

16             Now, above that reference, Colonel Delic makes reference to the

17     Siptar terrorists.  He says "During the operation the Siptar terrorists

18     did not throw their weapons and combat equipment before the crucial

19     moment.  When they started changing into civilian clothes and attempted

20     to make a breakthrough along a certain trig point where they encountered

21     our units in the line of blockade."  But then there's no further details

22     about what happened to them.  Siptar terrorists were killed.  There were

23     no prisoners taken.  Some of them threw down their weapons and changed

24     into civilian clothes, tried to break out but failed to do so because

25     they ran into the blockade, but then there is nothing indicating about

Page 26859

 1     what happened to them when they ran into the blockade and there's no

 2     indication prisoners were taken.

 3             We would ask you to examine that evidence closely and read it in

 4     conjunction with the testimony of the crime base victims from Bela Crkva,

 5     Nogavac, Celina, Mala Krusa, et cetera.

 6             Now, I'd like to look at another directive from General Ojdanic.

 7     This is P1481 dated the --

 8             JUDGE BONOMY:  Mr. Hannis, just one -- do you relate all of this

 9     so far to the Grom 3 directive?

10             MR. HANNIS:  I do.

11             JUDGE BONOMY:  Thank you.

12             MR. HANNIS:  And now I'm on to another topic and a different

13     directive.  This is P1481, 9th of April.  You'll recall that there was

14     one meeting of the VJ collegium during the war that we have minutes for

15     and that was on the 9th of April.  We say this directive came out of that

16     meeting or was done during that meeting, in the course of that meeting.

17     This is a directive "for engagement of the VJ in defence against the NATO

18     aggression."  And in that directive the engagement of the VJ up to that

19     point in time is discussed.

20             At page 4 in the English at the top it notes that the VJ realise

21     the following task before the NATO aggression began.  Increased security

22     on the state borders, combat operations to block and destroy the Siptar

23     terrorists forces in Kosovo and Metohija and mobilisation of war units in

24     the preparation for combat use.

25             This directive talks about the general aim of the defence.  One

Page 26860

 1     of the tasks to be completed is to smash and destroy the Siptar

 2     terrorists in Kosovo and Metohija.

 3             The 3rd Army is given the task to smash and destroy the Siptar

 4     terrorists and prevent their withdrawal into the zone of the 2nd Army.

 5             At page 9 in the English it's indicated that in addition to VJ

 6     units "engage work obligation units and the -- and the organised

 7     population (volunteers) for maintenance of forthcoming and dummy

 8     positions."

 9             And one item of interest to us here related to other matters in

10     this directive is item number 6 on page 11, command and communications.

11     It talks about deployment of the Supreme Defence Council and the

12     VJ General Staff.  And it also talks about communications and

13     cryptographic protections "at the level of VSO, Supreme Defence Council,

14     and VJ General Staff, organised communication and cryptographic

15     protection of information with president of the Republic of Serbia and

16     president of the Republic of Montenegro, et cetera."

17             So as of April 9th, in this directive General Ojdanic is

18     providing for communications and making reference to deployment of the

19     Supreme Defence Council.

20             Now, we don't have a record -- we don't have a document entitled

21     Supreme Defence Council Meeting in 1999 after the war started, but we've

22     had this discussion about the evidence regarding a Supreme Command and

23     who was on the Supreme Command.  I'll talk about that some more in a

24     minute but I want to continue on about this directive.

25             After that directive was issued on the 9th of April -- or the

Page 26861

 1     same day, I should say, General Ojdanic issued what was titled a

 2     preparatory order to General Pavkovic.  It's Exhibit P1480.  And he tells

 3     him to obey the directive tasking you with preparing a proposal for

 4     dealing with the aggression by the Siptar terrorists forces and

 5     aggression by NATO.  That proposal was to be submitted to the

 6     Supreme Command by 2000 hours on the 10th of April and then there was to

 7     be a report on the proposal for a decision on the 11th of April at the

 8     Supreme Command Staff in the presence of the Supreme Commander.

 9             This is further verified by Exhibit 3D815 dated the 10th of

10     April, 1999, which is a combat report of the Supreme Command Staff.  Item

11     number 7 on page 8 says a directive for the further use of the Yugoslav

12     army has been produced at the level of the Supreme Command Staff.  The

13     directive was immediately sent to the 3rd Army command for the

14     preparation and briefing on a decision of the 3rd Army command.

15             And following up from that we see on the 10th of April, 1999,

16     from General Pavkovic as commander of the 3rd Army a document that is

17     titled Grom 4.  It's entitled order for engagement of the 3rd Army in

18     defence from NATO aggression.  And it's similar in style and content and

19     format to what we saw in Grom 3 from General Pavkovic.

20             There's one puzzling note related to this.  As I said, you saw

21     that directive on the 9th of April from the Supreme Command Staff and the

22     order, the preparatory order to General Pavkovic and his ground for

23     Grom 4 on the 10th of April, but we have in evidence in Exhibit 5D175 an

24     order of the Pristina Corps related to Grom 4.  It's confidential number

25     455-123.  So it's in that series with the Joint Command orders.  However,

Page 26862

 1     it's dated the 6th of April, three days before the directive from the

 2     Supreme Command Staff, four days before General Pavkovic issues his

 3     Grom 4.

 4             I looked at the original to make sure that date was correct.  It

 5     does appear to be.  It's hard to know how General Lazarevic knew about

 6     Grom 4 before the directive was issued and before General Pavkovic issued

 7     his Grom 4, but I only advise the Court of that for you to make of it

 8     what -- what you can and what you will.

 9             I tried to see if there was anything further to suggest that

10     perhaps there was an error.  I know that the date on my English

11     translation says 6 April 1998, but I believe on the original it is 1999,

12     and other evidence within the document makes it clear that it is April

13     1999.

14             You know, we have in evidence a logbook of all the 455 series

15     documents, and 455-123 is listed in the logbook as being on the 4th of

16     April, 1999.  I know that probably only adds to the confusion, but I

17     raise this point because one of the things General Lazarevic told you

18     when he testified -- when he received a directive from Pavkovic like

19     Grom 3 and he issued his Grom 3 order in P2808, I asked him about well,

20     why did you put in this stuff about engaging the armed non-Siptar

21     population, and he said well, I have to do that because that comes from

22     my commander and that's a part I can't change, I have to leave that the

23     same.  But in this one, 5D175, which is apparently issued by Lazarevic

24     three, four, six days before General Pavkovic's Grom 4, in this order

25     under the task for the Pristina Corps, item number 2 on page 3, he says

Page 26863

 1     use armed non-Siptar population to secure military features and features

 2     of special importance for the defence of FRY, the roads, and for the

 3     defence of populated areas.  I bring that to your attention because later

 4     on in connection with General Lazarevic I'll be arguing about issues of

 5     credibility.

 6             Now, I'm still continuing on about this 9 April directive.

 7             On the 11th of April we have one of the evening briefings of the

 8     Supreme Command Staff, and at page 3 of that evening briefing, this is

 9     Exhibit 3D728, General Ojdanic is talking about the directive and he

10     says:  "During the evening amended the directive in line with ours.

11     Submit the draft plan for study.  The briefing will be at 0900 with the

12     VK."  And you will remember we had some discussion about what that

13     acronym or what that abbreviation means, whether it means

14     Supreme Commander or Supreme Command.  There was some debate.  We had one

15     witness who said oh, no, no, Supreme Command would always be a "BK" and a

16     little "a."  But I think Mr. Zecevic himself and General Gajic,

17     Branko Gajic, told us actually "BK" could be either one, could be

18     Supreme Commander or could be Supreme Command depending on the context.

19     And that reference is found at page 15415 where both Mr. Zecevic and

20     General Gajic tell you that it could be -- could stand for either.

21             I say in the context of this meeting it is referring to the

22     Supreme Command, because the very next thing it says in that document at

23     page 3 is present -- this is apparently a list of people who will be at

24     that meeting the next day.  Present the deputy for operations and staff

25     affairs, the Chief of Operations administration, the Chief of the Supreme

Page 26864

 1     Command Staff, General Smiljanic, General Grga, President Milosevic,

 2     President Milutinovic, and Sreten, adjutant of the MUP unit from Kosovo

 3     who we have to assume must be Sreten Lukic.  And the English translation

 4     I had says 2nd Lieutenant Sainovic, but I think we got it resolved later

 5     on that acronym in the B/C/S really stands for vice-president and not

 6     2nd lieutenant, Sainovic and General Pavkovic.

 7             So that to be discussed at a meeting the next day, and the next

 8     information we have concerning that original directive on the 9th of

 9     April is dated the 12th of April, 1999.  This is Exhibit P1483.  It's

10     from the Supreme Command Staff signed by General Ojdanic.  It's titled

11     supplement to directive DT number 22-1 of 9 April 1999 that makes some

12     changes.  One change that we think is important for you to take note of

13     on page 2 says paragraph 6 of the original directive should be changed to

14     read "forces of the MUP and civilian defence shall be placed under the

15     command of the 3rd Army during the operation and they shall be used

16     exclusively by your decision."

17             So General Ojdanic on the 9th of April is purporting to put the

18     forces of the MUP and the civilian defence under the command of

19     General Pavkovic for those -- those actions, that operation.

20             One more directive I want to talk about just briefly is P1465.

21     It's from the Supreme Command Staff.  It's dated the 29th of May, 1999,

22     and it's a warning or a reminder depending on which translation you look

23     at, and the point I wanted to make about this is the first paragraph.  It

24     notes that:  "The intensive engagement of the Pristina Corps units in

25     smashing Siptar terrorist forces prevented their maximum engagement in

Page 26865

 1     preparations to counter a NATO land operation."

 2             The point I'm trying to make is that General Ojdanic is clearly

 3     aware that prior to the 29th of May, 1999, rather than engaging and

 4     preparing to counter a NATO land attack, the VJ forces have been

 5     intensively engaged, the Pristina Corps, intensively engaged in smashing

 6     the Siptar terrorist forces.  Now, that's from the Supreme Command Staff,

 7     and it's echoed or reflected in a 3rd Army command order the following

 8     day, 30 May 1999, which is P1614 from General Pavkovic to the

 9     Pristina Corps.  General Lazarevic says the intensive engagement of your

10     units in smashing Siptar terrorist forces prevented their maximum

11     engagement in preparations to counter this NATO operation.

12             Now, the second way in which we say General Ojdanic contributed

13     to the joint criminal enterprise was in relation to arming of the

14     non-Siptars.  You will recall that there were a few references to arming

15     the non-Siptars and the number of armed Serbs in Kosovo and some of the

16     VJ collegiums.  One of the first references was in P928, a meeting on the

17     30th of December, 1998, where I believe it was General Dimitrijevic was

18     talking about the situation in Kosovo, and at page 9 of the English of

19     that exhibit he says:  "I'm thinking of a figure of about 60.000 armed

20     Serbs that can be mobilised outside the control of the official organs."

21             On the 21st of January, 1999, that's Exhibit P939, again

22     General Dimitrijevic in his report is saying at page 16 of the English:

23     "On the other hand, bearing in mind the number of people owning or having

24     been distributed weapons there is a realistic possibility on the Serbian

25     and Montenegrin side of the Serbian population organising itself to offer

Page 26866

 1     resistance and of an increasing emergence of radical forces."

 2             Again, this is a meeting of the VJ collegium presided over by

 3     General Ojdanic as the chief for the General Staff.

 4             And the most telling one, I think is in P931, the VJ collegium

 5     minutes for the 2nd of February, 1999.  You will recall we talked about

 6     this one with a number of witnesses.  Page 23 of the English,

 7     General Ojdanic says:  "I've heard that there are 50.000 armed Serbs."

 8     General Samardzic, who is no longer commander of the 3rd Army but he's in

 9     that position as inspectorate of the VJ says:  "Judging by the amount of

10     weapons issued for now it's 47.000, by the amount of the weapons and rest

11     assured that several thousand of them have already left with the

12     weapons."  Ojdanic says:  "What are the war assignments of those armed

13     Serbs and what is the plan for including them in the units?"  And

14     Samardzic says:  "It was my order, and we organised the whole thing for

15     the defence of Serbian villages.  Commanders at all levels have been sent

16     out.  They're armed and they have two combat sets of ammunition each.

17     Their role and assignment is to defend their villages and participate

18     together with army units in any operations in the immediate vicinity.  We

19     have to carry out military and police operations.  It can't be done in

20     any other way and at this moment there are enough army and MUP units to

21     do that part of the job if it should come to that."

22             Now, he said, "It was my order," and we can see where that order

23     was.  If you will look at Exhibit P1415.  This is a document dated 26th

24     of June, 1998, about eight months earlier, and this is an order -- this

25     particular document is an order from General Pavkovic as the commander of

Page 26867

 1     the Pristina Corps at that time, but it says:  "Pursuant to the 3rd Army

 2     command, strictly confidential number such-and-such," so that would have

 3     been General Samardzic as commander of the 3rd Army at the time.  And

 4     this calls for the distribution of weapons and ammunition with two combat

 5     sets of ammunition.  It talks about on the basis of the list call up

 6     military conscripts and small groups to the army barracks or organise

 7     distribution and issue weapons in Serbian and Montenegrin villages.

 8     Devote special attention to security measures, secrecy and camouflage,

 9     discipline in carrying out the task.  Item number 6 says:  "After

10     completing the distribution, prepare and organise inhabited places for

11     defence.  Military department commanders are responsible for organising

12     this in their zones of responsibility in cooperation with the MUP and

13     local self-government organs."

14             So we've got the VJ, the MUP, the military department and the

15     local government -- self-government organs all working together to do

16     this.

17             An active superior officer of the VJ is to be placed in charge of

18     each settlement, and responsibility for these tasks in item number 9 on

19     page 2, unit commanders are responsible for the distribution of weapons

20     and military department commanders for forming and training of the units.

21             So we say P1415 is the document that reflects the order that

22     Samardzic says in February 1999 that he gave earlier.

23             All right.  Now -- and I'll talk more about that particular

24     aspect when we come to General Pavkovic, but I want to move on to another

25     way which we say General Ojdanic contributed to the joint criminal

Page 26868

 1     enterprise, and that was his role in the Supreme Defence Council and

 2     during the war time the Supreme Command.  Although he was a non-voting

 3     member of the SDC, he made important personnel proposals.  That was his

 4     job, and some of the proposals that he made after he became Chief of the

 5     General Staff and member of the SDC was a proposal regarding

 6     General Pavkovic and General Lazarevic and General Farkas.

 7             In the minutes of the 8th session of the Supreme Defence Council

 8     on the 25th of December, 1998, a meeting attended by the way by

 9     Mr. Sainovic as well, among the items on the agenda were the

10     appointments, promotions, assignments of new duties of several generals,

11     and this is a meeting where it was proposed that General Pavkovic be

12     elevated to be commander of the 3rd Army and General Lazarevic to be

13     commander of the 3rd Army Corps -- I mean of the Pristina Corps.  I'm

14     sorry.

15             And you will recall we had a lot of -- we had a lot of evidence

16     and discussion about this document, because this is the meeting where

17     President Djukanovic expressed some reservations about the proposal to

18     promote or to elevate General Pavkovic because of the conflicting

19     information coming from Kosovo in recent months regarding the involvement

20     of the Pristina Corps, the indication that the Pristina Corps' actions

21     were not always in accordance with the constitutional role of the army

22     and the decisions of the Supreme Defence Council.

23             You will remember that's the one where Mr. Milosevic sort of

24     pooh-poohed Djukanovic's concerns and said no, no, no, there was nothing.

25     There had been no complaints about any illegal action by the

Page 26869

 1     Pristina Corps, either from abroad or from any side, but Milutinovic to

 2     his credit, I say, was a little more honest.  He added that some reports

 3     of the alleged lack of discipline and unconstitutional actions by the

 4     Pristina Corps were usually "inflated."

 5             Now, General Ojdanic is at this meeting.  He's made the proposal.

 6     He hears the complaints.  Keep that in mind because one of the things we

 7     will argue later on is that General Ojdanic was on notice about some

 8     problems with General Pavkovic and we say that he failed to take

 9     appropriate actions in that regard and this is something I want you to

10     keep in mind when we get to that discussion.

11             Further with regard to his role in the Supreme Command, during

12     the war Ojdanic met regularly with the Supreme Command for instructions

13     which he converted to tasks for the VJ.  You've heard evidence about

14     that.  There's more detail in our brief on that point.

15             One other item that relates to that relationship is Exhibit

16     P1010.  This is a Politika article.  It's an interview of General Ojdanic

17     on the 29th of April, 1999.  The article's about the high morale of the

18     Yugoslav army, and on page 3 of the English the next to the last

19     paragraph General Ojdanic says:  "I am sure that in future we shall

20     execute tasks given to us by the Supreme Command led by

21     President Slobodan Milosevic as we have until now, successfully."  We say

22     another bit of evidence indicating the existence of a Supreme Command

23     being something greater than just Mr. Milosevic as the Supreme Commander

24     during the wartime.

25             Another way in which we say General Ojdanic contributed to the

Page 26870

 1     joint criminal enterprise was related to the October agreements.  We say

 2     General Ojdanic was aware of certain VJ violations of those agreements

 3     including the bringing in to Kosovo of additional forces, the non-return

 4     of heavy equipment loaned to the MUP and some other matters detailed in

 5     our brief.

 6             Just quickly one of those is in Exhibit P941, VJ collegium

 7     minutes for the 25th of February, 1999.  You will recall

 8     General Dimitrijevic talking in that meeting about the anti-terrorist

 9     battalion from the 72nd Special Brigade having been dispatched apparently

10     initially to the rim of Kosovo and then into Kosovo.  General Ojdanic

11     noted on page 16 of the English of that meeting that the essence of the

12     matter was not to bring that unit to Kosovo.  So again here's another

13     example of where he's aware of something that General Pavkovic has done

14     that should cause him some concern and perhaps require him to take some

15     action.

16             Another violation we say --

17             JUDGE BONOMY:  Just one moment Mr. Hannis.

18             JUDGE NOSWORTHY:  With the leave of the Presiding Judge, if I

19     might, in respect of the October agreement and alleged breaches.  Would

20     the October agreement have been based on any premise as to the conduct of

21     the KLA or the Albanians and how they would or would not act in the

22     circumstances given the obligations under the October agreements?  And

23     I'm interested to hear from you whether there would have been any

24     legitimate or reasonable expectations as to their conduct under the

25     October agreements and how this would affect your arguments thus far.

Page 26871

 1             MR. HANNIS:  That's a -- that's a difficult issue.  The KLA was

 2     not a signatory to the agreement.

 3             JUDGE NOSWORTHY:  I -- even given that fact.

 4             MR. HANNIS:  To me it presents a bizarre circumstance that they

 5     aren't included in the situation.  I know -- I think we heard

 6     Shaun Byrnes testify to that somewhat, to some extent that they -- that

 7     he in KDOM and some of the other internationals tried to use their

 8     good -- their good services to the best of their ability to persuade KLA

 9     perhaps not to move back into this area and not be aggressive but they

10     had no -- they had no force behind that other than, you know, to try and

11     persuade them by reason or perhaps suggesting that if you -- if you

12     continue to act this way you may not get what you want.  In the end you

13     may not have our support, et cetera.  But there wasn't any enforcement

14     mechanism.  There wasn't anything in the agreement to make them act that

15     way.

16             Now, I don't know.  I guess if you were going to argue on the

17     basis of contract law, you would come down in one position but in real

18     life I don't know.  It seems to me looking now with the advantage of

19     20/20 hindsight saying that was -- that was an enterprise doomed to

20     failure.  If there wasn't some mechanism in place to be able to control

21     the KLA, it seems that it was ill-advised to go forward with the

22     agreement, but I don't know that I've answered your question, Judge.

23     It's just a difficult matter for me to accept, but it seems clear to me

24     that the Yugoslav side was aware of that when they entered into the

25     agreement.  Now, whether or not they had any realistic option, that's a

Page 26872

 1     matter beyond me at this moment.

 2             JUDGE NOSWORTHY:  I want to thank you for that answer, and I --

 3     there is another matter that would concern me.

 4             MR. HANNIS:  Okay.

 5             JUDGE NOSWORTHY:  In the event of provocation or circumstances

 6     where it would be believed that it was necessary to respond, how does the

 7     OTP say that the -- the forces should have responded under the terms of

 8     the agreement?  I'd like that to be set out and laid out for me a bit

 9     more clearly.

10             MR. HANNIS:  My understanding from the evidence is that everyone

11     sort of understood that in the event that there was a provocation by the

12     KLA, if the KLA attacked the police or -- or the VJ, that they were

13     entitled to respond to that attack, defend themselves and respond with

14     appropriate force, but as to the particulars of what that meant in a

15     particular situation I think different parties may have had different

16     views, but I think everyone agreed that yes, they did have that right.

17     Part of what we've argued about in this case, though, is that sometimes

18     what was being recorded as a provocation, I guess it has more to do with

19     timing, because as I understand it, that agreement was well, if we're

20     marching down the road and we're attacked by KLA, we're certainly

21     entitled to defend ourselves.  And if we chase them into the hills and

22     kill them, we're entitled to do that, too, if it's in immediate response.

23     But I think what we see happening sometimes is that there may have been

24     an attack on the MUP or the VJ last week and this week, seven days or ten

25     days later, the VJ and MUP get organised and we're going to go to that

Page 26873

 1     village where we think those guys came from and then we're going to

 2     respond.  And I think that's where some of us argue that no, that

 3     wasn't -- it's too late now, that's not -- that's not a response; that's

 4     an initiative on your own.

 5             JUDGE NOSWORTHY:  Thank you very much, Mr. Hannis.

 6             MR. HANNIS:  You're welcome.  Thank you, Judge.  Thank you.

 7             The next reference to what we say was a violation of the October

 8     agreements mentioned in the VJ collegiums was on the 3rd of December,

 9     1998.  That's in Exhibit 3D557, page 19.  General Obradovic is talking

10     about certain equipment that the VJ had loaned to the MUP, in particular

11     this related to 20 personnel carriers.  I believe those were armed

12     personnel carriers, APCs, and 23 mortars that were subject to the OSCE

13     agreement.  And they were talking about, well, should we list this

14     equipment as being with us and the VJ?  But then if they inspect, they

15     may discover that no, we don't really have it, that the MUP has it.  Or

16     we could list it as being with the MUP, but then we need to have some

17     documentation about how it was handed over.  And then there's also

18     mention about problems with two helicopters that the Serbian MUP has

19     acquired, whether that should be presented as being part of the army or

20     being presented as being the MUP.

21             It appears that the VJ collegium was of two minds about how to do

22     this.  General Dimitrijevic weighed in and made a comment.  He said, "I'm

23     against presenting falsely in our documents that they're with us, but I

24     think this has to be done at the highest level.  The equipment should be

25     returned, but if we're going to keep it we should present it as MUP

Page 26874

 1     equipment and then let them introduce a convention," whatever that means.

 2     It's the same with the helicopters and it's not two helicopters; there

 3     are more.  Ojdanic says, "I will first try with the minister," and I

 4     think in this context that means Minister Stojiljkovic, "and after that I

 5     must seek FRY president's position.  I also am not for either one or the

 6     other because the inspection team will come.  The same thing goes for the

 7     helicopters because in those talks with the foreign military

 8     representatives among other things they ask us about helicopter gunships

 9     and their firing observed on such-and-such a day in such-and-such a place

10     and at such-and-such a feature.  So those are two issues to be briefly

11     described and I'll inform the president."

12             So Ojdanic didn't seem to be necessarily opposed to taking ab

13     action that would falsely represent to the OSCE what the position was

14     regarding that particular heavy equipment.

15             Now, the last item in connection with our argument about

16     contributions to the JCE is -- is -- is a bit unusual to me in a way

17     conceptually.  We talk about failings regarding Pavkovic and it's

18     detailed in our brief and we say General Ojdanic had good cause to

19     believe that Pavkovic was not fully and accurately reporting about VJ

20     activities in Kosovo and that General Ojdanic was also aware that

21     General Pavkovic was dealing occasionally directly with

22     President Milosevic without informing Ojdanic either before or after the

23     fact.

24             This is detailed in the brief in paragraph 757 through 766 of our

25     final brief.  You will recall some of the discussions with witnesses

Page 26875

 1     including General Dimitrijevic about discussions at the VJ collegium.  I

 2     think the earliest one was probably in July 1998 when General Pavkovic

 3     was still commander of the Pristina Corps, and there was --

 4     General Perisic was expressing a concern that his ban on the use of VJ

 5     units in Kosovo without his specific permission was being violated by

 6     someone and we say the best evidence suggested at that time that was

 7     General Pavkovic.  So -- and this went on for months, and there were at

 8     least, I think, three other occasions where this is discussed.  It's

 9     usually General Dimitrijevic bringing it up.  General Ojdanic

10     acknowledges that there's a problem on at least one occasion.  He says

11     there's obviously something not right here and we need to have

12     General Pavkovic come in and talk to him, but there's no evidence that

13     that happened or that was done.

14             Now, I'll talk some more about that tomorrow, I guess, when we

15     get to General Pavkovic, but we say with this clear knowledge that

16     there's not full reporting and that sometimes the person who is not

17     reporting is taking actions that are contrary to instructions and

18     contrary to the October agreements and later on not taking any action is

19     in effect a tacit approval by General Ojdanic of what Pavkovic has done.

20     As I said, we'll talk more about that tomorrow.

21             Shared intent.  We say General Ojdanic shared the intent in

22     connection with the joint criminal enterprise because he had a wealth of

23     knowledge about crimes being committed by the forces of FRY and Serbia in

24     Kosovo in both 1998 and 1999, yet he continued to participate in planning

25     and ordering combat actions that led to further crimes by those same

Page 26876

 1     forces.  This, too, Your Honour, is set forth in further detail in our

 2     final brief in paragraphs 783 to 807.

 3             We say that General Ojdanic's awareness of the allegations of

 4     prior crimes and the misuse of the Pristina Corps in 1998 combined with

 5     the well-known international complaints in 1999 and problems with

 6     reporting by Pavkovic personally known to General Ojdanic called for more

 7     robust measures to be taken than the ones that he did.  In addition,

 8     there are VJ statistics regarding crimes which support the inference that

 9     the measures that he did take were -- were too little and too late and

10     they were not adequate.

11             I don't -- I don't think I have the time, Your Honours, to go

12     through some of the exhibits I would like to, but you will recall that in

13     connection with the military courts and proceedings in the military court

14     we've had a number of exhibits.  I would refer you to P953, P954, P955

15     which I think were brought in by General Gojevic, and P962 which is

16     General -- or Colonel Delic's report on measures taken against members of

17     the 549th Brigade, and P1011 which is that report by Mr. Markovic, not

18     Professor Markovic but a different Markovic, on how the VJ complied with

19     international law all have a number of statistics about the number of

20     cases, but if you read them closely and you review the evidence and the

21     cross-examination of those witnesses, you see there are a number of

22     inconsistencies that should cause you some pause or some concern about

23     how -- how effective these courts and prosecutors were, if that was a

24     result of the difficulties of trying to do cases in the war or if it was

25     also partly a result of a -- a lack of desire to really pursue that.

Page 26877

 1             The overwhelming majority of those prosecutions, you had high

 2     numbers thrown at you that we prosecuted this many thousand violations,

 3     but I think if you look statistics, 90 per cent of those are crimes

 4     against the VJ like failure to respond to the call-up and going Awol and

 5     insubordination to your superior officer.  The crimes like our crimes,

 6     murder, rape, looting, robbery, are a very, very small percentage, and

 7     the percentage of those where the perpetrator is a Serb and the victim is

 8     a non-Serb is even much smaller.  So we urge you to have a look at that

 9     evidence as well.

10             Your Honours, I know we're about five minutes from the time but

11     I'm about to go into General Pavkovic and I wonder if we could recess a

12     few minutes early today.

13             JUDGE BONOMY:  Yes, Mr. Hannis, we can adjourn now until tomorrow

14     when we will resume at 9.00.

15                           --- Whereupon the hearing adjourned at 3.26 p.m.,

16                           to be reconvened on Wednesday, the 20th day

17                           of August, 2008, at 9.00 a.m.