1 Friday, 15 March 2013
2 [Appeals Hearing]
3 [Open session]
4 [The appellants entered court]
5 --- Upon commencing at 9.00 a.m.
6 JUDGE LIU: Good morning, everyone. Madam Registrar, would you
7 please call the case.
8 THE REGISTRAR: Good morning, Your Honours. This is case
9 IT-05-87-A, the Prosecutor versus Nikola Sainovic, Nebojsa Pavkovic,
10 Vladimir Lazarevic, and Sreten Lukic.
11 JUDGE LIU: Thank you very much. As indicated, if any parties
12 are unable to follow the proceedings at any stage, I ask them to bring
13 this to my attention immediately.
14 For the sake of the record, may I -- may we have the appearances
15 of the parties. First, the Prosecution.
16 MR. KREMER: Thank you, Mr. President, Your Honours.
17 Peter Kremer appearing on behalf of the Prosecution. Joining me this
18 morning is my colleague Michelle Jarvis. She's assisted by Najwa Nabti,
19 Priya Gopalan. Also assisting this morning and making submissions will
20 be Mr. Nema Milaninia, and again we're joined by our colleague
21 Colin Nawrot, our Case Manager. Thank you.
22 JUDGE LIU: Thank you very much. For the Defence.
23 MR. FILA: [Interpretation] Good morning, Your Honours. My name
24 is Tomo Fila. Next to me is Vladimir Petrovic and we still represent the
25 accused Nikola Sainovic.
1 JUDGE LIU: Thank you.
2 MR. ACKERMAN: Morning, Your Honours. John Ackerman along with
3 Aleksandar Aleksic for General Pavkovic.
4 JUDGE LIU: Thank you.
5 MR. BAKRAC: [Interpretation] Good morning, Your Honours. For
6 Mr. Vladimir Lazarevic, Mihajlo Bakrac, Djuro Cepic, and our intern
7 Milan Petrovic.
8 JUDGE LIU: Thank you.
9 MR. LUKIC: Good morning, Your Honours. Branko Lukic and
10 Dan Ivetic for Mr. Lukic.
11 JUDGE LIU: Thank you. This morning we'll hear the appeals of
12 the Prosecution. Now, counsel for the Prosecution, please.
13 MR. KREMER: Thank you, Mr. President. To provide you with a
14 road map of our submissions today, my colleagues Ms. Jarvis and
15 Mr. Milaninia and I have divided the Prosecution's case and limited
16 ourselves to four of the six grounds in our Notice of Appeal and appeal
17 brief. Ms. Jarvis will make submissions on grounds 3 and 4 pertaining to
18 the Chamber's errors concerning the crimes of persecution involving
19 sexual violence. Mr. Milaninia will then briefly make submissions on
20 ground 2 regarding the Chamber's erroneous acquittal of General Lazarevic
21 for aiding and abetting murders involving the VJ. And I will conclude by
22 addressing the Chamber's sentencing errors.
23 We will not make submissions on grounds 1 and 5. These grounds
24 concern technical legal errors and are fully briefed in our written
1 If questions arise from the Bench or during the course of
2 submissions by Defence, we will deal with those in reply. Thank you.
3 JUDGE LIU: Thank you. Ms. Jarvis.
4 MS. JARVIS: Good morning, Mr. President and Your Honours. As
5 Mr. Kremer has just mentioned, I'm going to be addressing you this
6 morning in relation to the Prosecution's third and fourth grounds of
7 appeal which relate to the treatment of sexual assaults as persecution.
8 Ground 3 concerns the Trial Chamber's error in failing to find
9 that sexual assaults were foreseeable to Sainovic and to Lukic under the
10 JCE III standard. And ground 4 concerns the Trial Chamber's error in
11 failing to find that the sexual assaults that occurred in Pristina were
12 committed with the discriminatory intent required for persecution, and
13 this error affects the convictions of Sainovic, Pavkovic, and Lukic.
14 Presently, Your Honours, the outcome of this case stands for the
15 proposition that in the midst of a violent ethnically driven expulsion
16 campaign where women and girls are expelled from their homes in a highly
17 volatile and terrifying atmosphere, where they are left at the mercy of
18 tens of thousands of armed military and police forces, and where there
19 are no effective protective mechanisms in place, acts of sexual violence
20 are not foreseeable. A further implication of the trial judgement
21 currently is that unless a perpetrator makes an expressly discriminatory
22 statement at the time of inflicting an act of sexual assault,
23 discriminatory intent for persecution cannot be found.
24 Your Honours, it is important that we look carefully at both of
25 those conclusions. For almost two decades, the ICTY has fairly and
1 appropriately corrected many of the historical misconceptions surrounding
2 wartime sexual violence crimes. At this stage, the ICTY should not leave
3 as part of its legacy the perception that these crimes are subjected to
4 higher standards of foreseeability or more onerous standards of proof
5 concerning discriminatory intent.
6 It is equally important to establish accountability for these
7 crimes, Your Honour. You must focus on whether under the applicable
8 criminal standards the Trial Chamber erred in assessing the culpability
9 of the accused in this case. In our submission, it did.
10 My argument today will proceed as follows.
11 First I will address Your Honours in relation to ground 3
12 concerning the foreseeability of the sexual assault persecution. I'll
13 explain that the Trial Chamber erred in applying too high a risk
14 threshold for JCE III. I'll then discuss why, in correcting that legal
15 error, Your Honours should be satisfied beyond a reasonable doubt that
16 persecution based on sexual assaults was foreseeable to the JCE members,
17 including Sainovic and Lukic.
18 Second, I'll address Your Honours in relation to ground 4
19 concerning discriminatory intent for persecution. I'll explain why,
20 given all of the prevailing contextual factors surrounding the rapes, the
21 only reasonable conclusion is that they were committed with
22 discriminatory intent. I'll also explain why, having corrected the
23 Trial Chamber's errors, Your Honours should confirm that the Pristina
24 rapes constitute persecution and enter convictions under JCE III for
25 Sainovic, Pavkovic, and Lukic.
1 Turning first to the Prosecution's third ground of appeal.
2 Before I proceed, Your Honours, I do want to make it clear that the
3 Prosecution does not maintain the argument initially put forward in its
4 appeal brief that Sainovic and Lukic had actual notice that sexual
5 assaults were happening prior to the commencement of the 1999 campaign.
6 As we mentioned in our reply brief, we accept that the evidence does not
7 unequivocally support that proposition. However, in our submission, this
8 in no way affects the viability of our ground of appeal. For the reasons
9 that I'll explain, proof of prior notice that the same crimes have
10 previously happened is not required to prove foreseeability.
11 Your Honours, it is clear that the Trial Chamber has committed a
12 legal error by applying too high a risk threshold for JCE III. The
13 Trial Chamber required proof that the JCE members could foresee that
14 sexual assaults would happen, relying on a decision that the
15 Appeals Chamber has since confirmed is not good law. It should instead
16 have considered whether the JCE members could foresee that sexual assault
17 persecutions might happen, which equates with a possibility risk
18 threshold. And the Appeals Chamber has, of course, settled this issue in
19 its interlocutory appeal decision in the Karadzic case dated
20 25 June 2009.
21 The Karadzic Appeals Chamber specifically noted that JCE III
22 mens rea is satisfied if there is a possibility of the crime. Certainly
23 we acknowledge that the Appeals Chamber cautioned that the standard will
24 not be satisfied by implausibly remote scenarios and that there must be a
25 sufficiently substantial possibility of the crime happening to make it
1 foreseeable to the particular accused person in question. But
2 nevertheless, the Appeals Chamber confirmed that requiring proof of a
3 probability of the crime is setting the bar too high. That's at
4 paragraph 18 of the Karadzic decision.
5 So there has been a clear legal error.
6 Your Honours must now apply the correct legal standard -the
7 possibility risk threshold - to the Trial Chamber's factual findings and
8 the evidence on the record and decide whether you are satisfied that the
9 possibility of sexual assault persecutions was foreseeable to Sainovic
10 and Lukic in the course of implementing the common criminal purpose.
11 JUDGE LIU: Ms. Jarvis, would you be kind enough to point out a
12 specific paragraph of the judgement where you claim that the
13 Trial Chamber made an error in applying the wrong standards.
14 MS. JARVIS: Yes, Your Honour. Perhaps I could give a brief
15 answer initially by saying that we have, of course, identified the
16 relevant paragraphs in our Notice of Appeal but I can also take you
17 through them as well. If you allow me just one moment to find the
18 relevant passages.
19 Your Honours, in particular in Volume I of the Trial Judgement at
20 paragraphs 96 and 111, when we see, for example, in paragraph 190 --
21 sorry, in paragraph 96, if you move towards the end of that paragraph on
22 page 40, the Trial Chamber has indicated it was looking to see whether it
23 was reasonably foreseeable to him that the crime or underlying offence
24 would be perpetrated by one or more of the persons used by him, being a
25 member of the JCE. And this same language is then repeated in
1 paragraph 111 of Volume I. And again I take you to the end of the
2 paragraph on page 46, and we see again reference to it being reasonably
3 foreseeable on the basis of the information available to the accused that
4 the crime or underlying offence would be committed. The language of
5 "would" is clearly incorrect and that has been confirmed by the Appeals
6 Chamber. The relevant language should be "might be committed," which
7 does equate to a lower risk threshold that is equivalent to a possibility
9 We see, Your Honours, similar language being repeated in
10 Volume III of the Trial Judgement when the Chamber came to make its
11 findings in relation to JCE III, and in particular, in relation to the
12 accused Lukic, the Trial Chamber uses the term whether the sexual
13 assaults were "likely," which again we say is indicative of the wrong
14 legal threshold.
15 Your Honours, more generally, the Trial Chamber in formulating
16 this language was relying on the Brdjanin interlocutory appeal decision
17 which did adopt the higher probability standard, and this was the very
18 decision that in the Karadzic case the Appeals Chamber confirmed was too
19 high a standard and had been implicitly overturned by other authorities.
20 JUDGE LIU: Thank you.
21 MS. JARVIS: Your Honours, foreseeability for the purposes of
22 JCE III must be assessed with reference to the overall context in which
23 the crimes were committed and particularly in light of the nature of the
24 common criminal purpose. While evidence that the accused knew the same
25 types of crimes had previously happened might be one relevant contextual
1 factor, it is certainly not an essential ingredient in proving
2 foreseeability. There are many other contextual factors that we say are
3 relevant, and we ask Your Honours to make this point clear when rendering
4 your judgement in this case.
5 To illustrate the point, Your Honours, let's take for a moment
6 the classical JCE III scenario where an accused person is held
7 responsible for murder as a participant in a JCE to commit an armed bank
8 robbery, even though it was never intended that anyone would actually be
9 shot in the course of the robbery.
10 The assessment that murder is a foreseeable consequence of the
11 JCE III of the armed robbery doesn't depend on evidence that the
12 participants in the JCE knew that bank staff had recently been shot in
13 the course of other armed robberies. It's a matter of common sense. If
14 someone charges into a bank with a loaded weapon to steal valuables, it's
15 foreseeable that someone might be killed.
16 Compare this to the JCE in this case. Instead of one loaded gun,
17 tens of thousands of armed men unleashed into villages, including going
18 door-to-door using violence and terror to forcibly displace upwards of
19 700.000 people, including, of course, women and girls. Your Honours must
20 ask yourselves what crimes are foreseeable in this context?
21 This approach has been previously adopted by many Trial Chambers
22 and endorsed by the Appeals Chamber. And the Krstic case, Your Honours,
23 is a very clear example. In finding that sexual violence was a
24 foreseeable consequence of the humanitarian crisis in Potocari, the
25 Trial Chamber did not require evidence that General Krstic knew his
1 troops had previously been raped [sic]. Instead, the Trial Chamber drew
2 common sense inferences based on an ordinary understanding of human
3 behaviour, given the prevailing contextual factors and given the nature
4 of the common criminal plan which was to displace women and children and
5 elderly from the area. So the Trial Chamber emphasised the lack of
6 shelter, the density of the crowds, the vulnerable condition of the
7 refugees, the presence of many regular and irregular military and
8 paramilitary units in the area and the sheer lack of protection available
9 for the refugees.
10 General Krstic knew enough about these prevailing contextual
11 factors to make it foreseeable to him that women might be raped in this
12 context. I refer you to paragraph 616 to 617 of the Krstic trial
13 judgement and the Appeals Chamber endorsed this analysis at paragraph 149
14 of its appeal judgement.
15 The Kvocka case is another clear example of a contextual
16 analysis. In finding that sexual violence was foreseeable in the context
17 of the Omarska prison camp in Prijedor municipality, the Trial Chamber
18 did not require evidence the accused knew women had been previously raped
19 in the camp. Instead, again, the Trial Chamber drew common sense
20 inferences based on an ordinary understanding of human behaviour given
21 the prevailing contextual factors and given the criminal plan to
22 persecute and subjugate the non-Serb detainees.
23 The Trial Chamber concluded, and the text will appear on your
24 screens, Your Honours:
25 "Indeed it would be -- indeed, it would be unrealistic and
1 contrary to all rational logic to expect that none of the women held in
2 Omarska, placed in circumstances rendering them especially vulnerable,
3 would be subjected to rape or other forms of sexual violence."
4 That's at paragraph 327 of the Kvocka trial judgement.
5 To the Krstic and Kvocka precedents we can now also add the
6 Tolimir trial judgement rendered in December last year. Although the
7 Tolimir case didn't deal expressly with sexual violence crimes, the
8 overall approach to foreseeability under JCE III is instructive and
9 consistent with the Krstic and Kvocka precedents. It's at paragraphs
10 1136 and 1140 of the Tolimir trial judgement.
11 Your Honours, if you carry out a similar contextual analysis in
12 this case, the only reasonable conclusion is that Sainovic and Lukic
13 could foresee that sexual assault persecution might happen in the context
14 of this joint criminal enterprise. This conclusion is reinforced by
15 Judge Chowhan's analysis in his dissenting opinion in this case. In
16 finding sexual assaults were foreseeable, Judge Chowhan relied on factors
17 including the involvement of able-bodied Serb forces, a common plan in
18 which expulsion was achieved using violence, and the removal of women
19 from their homes. Judge Chowhan's reference to prudence and common sense
20 shows that he was applying everyday understandings of human dynamics in
21 the context of the common purpose in question. That, we say, was the
22 right approach and the one that Your Honours should adopt in this case.
23 Your Honours, the regrettable truth is that we still live in a
24 world where sexual violence against women is commonplace. In the chaos
25 and aggression of armed conflict, when normal social structures have
1 broken down, the risk is higher again. And certainly, Your Honours, in
2 the midst of a violent ethnic cleansing campaign like the one in this
3 case, to say that violations of physical integrity such as sexual assault
4 was not even a foreseeable possibility would be to close our eyes to
5 human experience.
6 I want to highlight three main indicators in this case that we
7 say made the possibility of sexual assault foreseeable to Sainovic and
8 Lukic. They are, first of all, the use of violence and terror as an
9 integral part of the common criminal purpose. Second, the prevailing
10 climate of intense ethnic animosity. And third, the fact that women and
11 girls were left in an utterly vulnerable position without normal
12 protective measures functioning.
13 ICTY case law confirms the relevance of each of these predictive
14 factors in predicting sexual violence or other violent crimes. For
15 example, I refer Your Honours to the Krstic trial judgement,
16 paragraph 616, and the appeal judgement, paragraph 149; the Kvocka trial
17 judgement, paragraph 327; the Popovic trial judgement, paragraph 1088;
18 and the Tolimir trial judgement, paragraph 1136.
19 So turning to the first indicator, the use of violence and terror
20 by armed Serb forces as an integral part of the expulsion campaign.
21 Your Honours, it would be unrealistic to expect that upwards of
22 700.000 people, Kosovo Albanians, would calmly agree to leave their homes
23 never to return on the basis of a polite request. It's obvious that in
24 order to permanently uproot so many people, the armed Serb forces had to
25 use violence, including door-to-door expulsions, to terrify the targeted
1 population into fleeing. And the Trial Chamber found exactly that. The
2 judgement is replete with references underscoring the use of violence and
3 terror as a part of the expulsion campaign. For example, and
4 Your Honours will see the language on your screens, the Trial Chamber was
5 satisfied that there was:
6 "A broad campaign of violence directed against the Kosovo
7 Albanian civilian population during the course of the NATO air
8 strikes ..."
9 That's Volume II, paragraph 1156.
10 The Trial Chamber also found:
11 "... consistent eyewitness accounts of the systematic
12 terrorisation of Kosovo Albanian civilians by forces of the FRY and
13 Serbia, their removal from their homes, and the looting and deliberate
14 destruction of property, satisfies the Chamber that there was campaign of
15 violence directed against the Kosovo Albanian civilian population, during
16 which there were incidents of killing, sexual assault, and the
17 intentional destruction of mosques."
18 That's Volume II, paragraph 1178, and I refer to you a similar
19 finding at paragraph 1156.
20 Most importantly, Your Honours, the Trial Chamber was satisfied
21 that the use of violence and terror was an essential component of the
22 common criminal purpose and again you'll see the text appearing on your
24 The Trial Chamber formulated the common purpose this way, it
1 "Through a widespread and systematic campaign of terror and
2 violence, the Kosovo Albanian population was to be forcibly displaced
3 both within and without Kosovo."
4 That's Volume III, paragraph 95.
5 It is important that we understand sexual assaults were violent
6 crimes committed in the course of this violent attack, just like the
7 violent expulsions, murders, beatings, and property damage.
8 The gang-rape of Witness K20 in Beleg is a clear example. Serb
9 forces arrived in Beleg with armoured vehicles and began mistreating the
10 Kosovo Albanian population. Personal documents were confiscated, men
11 were beaten and murdered, and women were strip-searched and subjected to
12 sexual violence. That's paragraph -- Volume II paragraphs 54 to 55,
13 58 to 64.
14 Armed Serb forces surrounded K20's home and ordered her and her
15 family to leave. There were imprisoned in a stifling basement with
16 around 300 other prisoners, many of whom were women. K20 was taken out
17 with four other girls and violently gang-raped by four soldiers. At the
18 same time, she could hear the screams of two other girls and she knew
19 that they were being raped too. Afterwards she was in such severe pain
20 that she could not sit and she lost consciousness. The next day, a
21 policeman ordered K20 and the other detainees: "Go to Albania, you have
22 asked for NATO."
23 The villagers of Beleg fled Kosovo, like the hundreds of
24 thousands of other Kosovo Albanians. K20 was among them. She had been
25 evicted from her home, imprisoned in inhumane conditions, raped, and
1 finally expelled from Kosovo, fulfilling the aims of the JCE. That's
2 Volume II, paragraphs 58, 61, 65, 67, 1178; and Exhibit P2669 at pages 2,
3 and 4 to 6.
4 The experiences of the sexual assault witnesses in Qirez bear the
5 same hallmarks. Men were killed at will, homes and property burned, and
6 women were forced to flee from place to place and were sexual assaulted.
7 That's Volume II, paragraphs 623 to 636.
8 While the forms of physical violence inflicted on the Kosovo
9 Albanian population took on different dimensions depending on whether
10 they were men or women, they were all subjected to violence that made
11 them flee. It is important to remember that the crime we're dealing with
12 here is persecution based on violations of physical integrity. We should
13 not lose sight of the fact that these sexual assaults, like all other
14 acts of violence to the person, are about the use of physical force to
15 injure and damage human beings.
16 The Trial Chamber found that both Sainovic and Lukic knew that
17 the displacement would be effected by violence and terror. In
18 particular, the Trial Chamber found that this was one of the factors
19 making property destruction foreseeable to them -- to each of them.
20 That's Volume III, paragraphs 473 and 1136. Similarly, in finding that
21 murder was foreseeable to Sainovic and Lukic, the Trial Chamber
22 specifically referred to "the context in which the forcible displacement
23 took place." That's Volume III, paragraphs 470 and 1134.
24 This context obviously included the overwhelmingly violent and
25 terrifying nature of the campaign. If the overarching use of violence
1 and terror in carrying out the expulsion campaign is relevant in
2 predicting violations of physical integrity like murder, then it is
3 equally relevant in predicting violations of physical integrity like
4 sexual assault. Similarly, if it's relevant in predicting property
5 damage, it is certainly relevant in predicting physical damage to the
6 female members of that same group.
7 Human experience tells us that the violent acts committed against
8 women very often take on different forms in the context of a campaign
9 like the 1999 expulsion campaign in Kosovo. It is important that the law
10 recognises and responds adequately to the experiences of everyone.
11 A second indicator of sexual assault persecution in this case is
12 the strong ethnic animosity that permeated the displacement campaign in
13 Kosovo in 1999. This led to a volatile and highly charged situation. In
14 indeed in this case the Trial Chamber relied on ethnic animosity and
15 division as a factor in finding that both Sainovic and Lukic could
16 foresee murder and the destruction of religious property. That is
17 Volume III, paragraphs 470, 473, 1134, and 1136. Again, Your Honours, if
18 it's a relevant factor in predicting murder and the destruction of
19 property belonging to the targeted ethnic group, then it is certainly a
20 relevant factor in predicting violent acts of persecution such as sexual
21 assault on the women of that same ethnic group.
22 A third evidentiary indicator of sexual assault persecution in
23 this case is the fact that the Kosovo women and girls were left in an
24 utterly vulnerable situation without normal protective measures
25 functioning. They were forced from their homes and left at the mercy of
1 the armed Serb forces who exercised total power over them. Sainovic and
2 Lukic were well aware of the vulnerable position of the women and girls.
3 First, the whole point of the criminal plan they endorsed was to force
4 the Kosovo Albanian population, including the women and girls, from the
5 safety and security of their homes. Second, from their experience in
6 1998, both accused knew that this criminal plan would likely result in a
7 humanitarian crisis -- catastrophe and a refugee crisis. That's
8 Volume III, paragraphs 442 and 1079.
9 This was confirmed by what they saw in Pristina during the JCE's
10 implementation. The Trial Chamber found that during the NATO campaign
11 Sainovic was again a very well-informed politician when it came to the
12 events in Kosovo, and that he had a detailed knowledge of events on the
13 ground in Kosovo in both 1998 and 1999. That's Volume III,
14 paragraphs 464 and 470.
15 Sainovic was in Pristina during periods when massive expulsions
16 were taking place there, involving door-to-door searches and terrifying
17 the Kosovo Albanian population with threats, beatings and gunfire as they
18 moved in confined columns. That's set out in our appeal brief at
19 paragraph 79.
20 Similarly, the Trial Chamber found Lukic had a detailed knowledge
21 of events on the ground in 1998 and 1999. Volume III, paragraph 1134.
22 Lukic was based at the MUP staff headquarters in Pristina and he knew
23 ill-treatment and forcible displacements were occurring. That's
24 Volume III, paragraph 1124.
25 In addition to these three indicators I've mentioned so far,
1 which are of themselves a sufficient basis to find the possibility of
2 sexual assault was foreseeable, we also rely on the additional contextual
3 factors set out in our appeal brief. In particular, in deploying the VJ
4 and MUP forces in 1999 to expel the Kosovo Albanian population, Sainovic
5 and Lukic knew that these same forces had in fact committed violent
6 crimes including violations of physical integrity during the 1998
7 campaign. For example, I refer you to paragraph 70 of our appeal brief.
8 Not only that, but the JCE members, including Sainovic and Lukic,
9 used these same forces to carry out a vastly more extensive expulsion
10 campaign without putting in place any meaningful safeguards.
11 In this respect, I refer Your Honours to the approach taken by
12 the ICTR in the Karemera trial judgement at paragraphs 1476 to 1477,
13 finding that in the course of an extermination campaign to destroy a
14 group, it is foreseeable that soldiers and militias who participate in
15 the destruction will resort to rapes unless restricted by their
17 Your Honours, if we were to conclude that sexual assault
18 persecutions were not foreseeable in this case as a possible consequence,
19 what then are we really saying about the nature of sexual assaults? Are
20 we concerned that they were purely coincidental opportunistic assaults
21 which weren't connected to the broader campaign? We know this is not the
22 case, because the Trial Chamber expressly found that they were part of
23 the widespread and systematic attack on the Kosovo Albanian population
24 and therefore constituted crimes against humanity. That's Volume 2,
25 paragraphs 1184, 1188, 1220, and 1224.
1 By definition then, they were not a limited number of randomly
2 selected individuals nor were they isolated acts. Are we concerned,
3 Your Honours, that the number of sexual assaults in evidence in this case
4 was not higher?
5 First of all, we should be careful about the conclusion that the
6 numbers were low. Although the Prosecution only charged the accused with
7 11 incidents and their responsibility is limited to those, that doesn't
8 mean they were the only incidents documented on the record. There is
9 evidence of around 50 additional sexual assaults. And I refer
10 Your Honours to Volume 2, paragraphs 63, 629 to 636, 880; and
11 Exhibit P2596. The Trial Chamber also referred to additional reports of
12 rape and sexual violence committed during the 1999 campaign in official
13 documents and meetings. I refer you to Volume III, paragraphs 552, 572,
14 576, 578, 585, 726, 737, 749, 785, and 1135.
15 But more fundamentally, Your Honours, why should it matter even
16 if only a small number of sexual assaults were in evidence? The question
17 is whether a crime that is predictable based on the nature of the common
18 purpose occurred, not whether it occurred in large numbers. Your Honours
19 should instead focus on whether the violations of physical integrity
20 stemming from the sexual assaults fits in with the overall pattern of
21 violations of physical integrity in the violent campaign.
22 We say they did, and as I've mentioned, the Trial Chamber's
23 findings on the contextual elements of crimes against humanity very
24 strongly support that conclusion.
25 If we say that the sexual assault persecutions were not
1 foreseeable, does this mean that we either do not regard them as violent
2 acts or that we regard them as somehow qualitatively different from other
3 violent acts? Neither of these propositions can be accepted either.
4 Given the facts surrounding each of the incidents in this case,
5 it's clear that the sexual assaults were about violence and control. Nor
6 were these acts qualitatively different just because of their sexual
8 The ICTY's previous case law has resoundingly rejected Defence
9 arguments that seek to put sexual violence in a different category from
10 other violent acts on the basis that one of the underlying motives might
11 have been a desire for sexual gratification. And I refer Your Honours to
12 the Kunarac appeal judgement, paragraphs 153 and 155.
13 This case presents an opportunity for Your Honours to reinforce
14 this point and it's an important one.
15 Not only was the possibility of sexual assault persecution
16 foreseeable to Sainovic and Lukic, but they willingly took the risk that
17 it would happen by joining and continuing to participate in the criminal
18 enterprise. Moreover, they took no meaningful steps to prevent the
19 crimes from happening. And I refer Your Honours generally to the
20 Trial Chamber's findings Volume III, paragraphs 458, 477 -- sorry, 458 to
21 477, and 1114 to 1140.
22 Your Honours, the contextual analysis that we're advancing here
23 does not result in an overly broad or unfair approach to
24 responsibility. In this case we're not speaking about the general risk
25 of sexual assault happening during conflict. We're speaking about the
1 considerably heightened risk of it happening in the midst of a violent
2 expulsion campaign to terrify a population into leaving.
3 Your Honours, this brings me to the fourth ground of appeal
4 concerning the classification as persecution of three rape incidents in
5 Pristina in April and May 1999. The Trial Chamber accepted that the
6 three rape incidents were proved but stated that the Prosecution had
7 "failed to bring any evidence" from which it could infer that these rapes
8 were carried out with the discriminatory intent required for persecution.
9 That's Volume II, paragraph 1245.
10 It is clear, again, that the Trial Chamber committed an error in
11 saying that there was no relevant evidence. The Chamber failed to
12 consider any of the general or specific contextual factors surrounding
13 the rapes which are highly relevant to assessing discriminatory intent.
14 In addition, in the case of Witness K31, the Trial Chamber failed to
15 consider direct evidence of discriminatory intent in the form of a
16 derogatory statement about Albanians made by one rapist.
17 This was an error of law or alternatively an error of fact. You
18 could consider it an error of law because the Trial Chamber improperly
19 limited the scope of the evidence it considered relevant. Effectively it
20 required evidence of a directly discriminatory statement in order to find
21 persecution. Alternatively, Your Honours could approach it as an error
22 of fact. Either way, the only reasonable conclusion is that the Pristina
23 rapes were carried out with the discriminatory intent required for
25 This is not the first time that the Appeals Chamber has been
1 confronted with an issue similar to the one before Your Honours today.
2 It also came up in the Krnojelac case. There too the Trial Chamber had
3 failed to analyse the contextual surrounding circumstances of the crimes
4 to infer discriminatory intent and the Appeals Chamber overturned the
5 Trial Chamber's erroneous conclusions and substituted persecution
6 convictions. For example, the Krnojelac appeal judgement at
7 paragraphs 184 to 188.
8 In doing so, the Appeals Chamber confirmed that the fact that
9 something happens in the course of a broader discriminatory attack,
10 doesn't, of course, mean that you can automatically infer it was also
11 committed with discriminatory intent. But the Appeals Chamber also
12 confirmed that if the circumstances surrounding the commission of the
13 specific acts in question are consistent with that broader discriminatory
14 context, then of course you can and should infer discrimination based on
15 the whole package of relevant factors.
16 Here, Your Honours, all the circumstances surrounding the rape
17 incidents in Pristina confirm that they were an integral part of the
18 discriminatory attack. We've set out the relevant factors in some detail
19 in our appeal brief at paragraphs 87 to 100, and I won't go over them in
20 detail here but I will highlight some of the key factors. It is
21 important that we clearly understand the context in which these rapes
23 Everything that happened to the three Kosovo Albanian women -
24 K31, K14, and K62 - was connected to their ethnicity. K31 saw villagers
25 murdered around her during the attack on Pristina. Serb forces then
1 captured her and her injured brother. Her hands were tied, she was
2 threatened with death, and four soldiers tried to extract information
3 from her about her uncle and so-called alleged terrorists. She was
4 beaten, abused and sexual assaulted as the soldiers took her to the
5 Pristina hospital. At the hospital, she was imprisoned in a basement
6 with up to 15 other young Kosovo Albanian women who had apparently been
7 brought there to be raped. She was drugged and brutally raped several
8 times by three different soldiers. One of them cursed Albanians
9 immediately after he raped her.
10 The experiences of K14 and K62, the other Pristina witnesses,
11 bear similar hallmarks. All three were Kosovo Albanian women targeted by
12 Serb forces for expulsion, imprisonment and rape because they were Kosovo
13 Albanian women. And the strategy was successful. As K14 explained,
14 after being violently raped by Serb forces at the notorious Hotel Bozhur,
15 she and her family fled. That's in the transcript at page 10990.
16 Your Honours, nothing about the prevailing context shows that
17 these rapes were somehow separate or isolated acts disconnected from the
18 broader discriminatory attack. To paraphrase the Kvocka Trial Chamber at
19 paragraph 195, when all the victims of this attack were Kosovo Albanian
20 civilians and when all of the abusers were members of the Serb forces
21 sent in to expel them from their homes using violence and terror, it is
22 disingenuous to contend that ethnicity did not define the group
23 targeted for attack, including the female members of the group.
24 Once again, Your Honours, we have to think about what we're
25 really saying here if we conclude that these rapes were not committed
1 with discriminatory intent. Can we really accept that the Serb forces
2 had a persecutory switch that was somehow turned off when these rapes
3 occurred but was activated at all other times? If the Serb forces
4 attacking and cleansing Pristina were acting with discriminatory intent
5 when they murdered Kosovo Albanians and damaged Kosovo Albanian property,
6 how could they suddenly not be acting with discriminatory intent when
7 they raped and otherwise abused these three Kosovo Albanian women as part
8 of the same course of conduct?
9 Even if there are concerns that the perpetrators may have been
10 motivated by the desire for sexual gratification, this would not preclude
11 a finding of discriminatory intent. Similar arguments have been
12 dismissed by the Appeals Chamber previously. And I refer to the Kunarac
13 appeal judgement, paragraphs 153 and 155, finding that if a rape
14 perpetrator's motivation is sexual, this does not preclude a finding that
15 the rape was carried out with one of the prohibited purposes for torture.
16 We say a similar analysis applies here in the context of persecution.
17 Further, as confirmed by the Krnojelac trial judgement,
18 paragraph 435, discriminatory intent for persecution need not be the
19 primary intent with respect to the act, although it must be a significant
20 one. I also refer Your Honours to the Kunarac appeal judgement once
21 again, paragraph 153 and 155, for similar reasoning in the context of the
22 crime of torture.
23 The relief we've requested in relation to ground 4 is that
24 Pavkovic, Sainovic, and Lukic should be convicted of the Pristina sexual
25 assaults as a crime against humanity by way of persecution pursuant to
1 JCE III.
2 On correcting the Trial Chamber's error in its discriminatory
3 intent analysis, all of the elements of persecution as a crime against
4 humanity will be met. The Trial Chamber made a general finding that the
5 crimes in Pristina were part of the widespread and systematic attack on
6 the Kosovo Albanian population and that the physical perpetrators knew or
7 took that risk. That's Volume II, paragraphs 889, 1240 to 1241.
8 With respect to the responsibility of the JCE members for the
9 Pristina rapes, the Trial Chamber made findings that the crimes were
10 committed by the VJ and/or MUP personnel. Volume II, paragraph 889. The
11 Trial Chamber also found that all of the indicted crimes of the VJ and
12 MUP are attributable to each of the JCE members. That's Volume III,
13 paragraphs 468, 783, and 1132.
14 When it comes to the foreseeability of the Pristina sexual
15 assaults for the purposes of JCE III, I refer to the submissions that
16 I've already made today in respect of Sainovic and Lukic as supplemented
17 by our appeal brief. And regarding Pavkovic, on Tuesday, my colleague
18 Mr. Schneider answered Your Honours' question as to why the Pristina
19 rapes were foreseeable to him.
20 In conclusion, we ask Your Honours to make it clear in your
21 judgement that this Tribunal will not subject sexual violence crimes to
22 higher standards of foreseeability or higher proof requirements for
23 discriminatory intent than other violent crimes. We also ask you to make
24 it clear, as you have consistently done before, that this Tribunal
25 recognises and appropriately sanctions the many forms of violence the
1 victims in this conflict experienced, men and women alike, violence
2 inflicted because of their status as members of the targeted population.
3 That concludes my submissions, Your Honours.
4 JUDGE LIU: Ms. Jarvis, concerning the so-called opportunistic
5 sexual assault, I would like you to compare with the case in ICTR, that
6 is Rukundo case. Although where the contextual circumstances is
7 genocide, the majority of the Appeals Chamber still did not convict the
8 accused as rape.
9 MS. JARVIS: Yes, Your Honour. We're aware of the Rukundo
10 precedent, and, Your Honours, I think it would be important to say that
11 of course each case has to be taken on a case-by-case basis having regard
12 to its own contextual factors. In the context of Rukundo, as I recall
13 the decision, the Appeals Chamber was looking at one incident of rape or
14 sexual assault, I think it indeed was, and it was unable to find by
15 majority -- there were of course different opinions on the Bench in that
16 case, but the majority was unable to find that it was sufficiently
17 connected to the broader attack to find that it constituted an act of
18 genocide as I recall.
19 In this case, Your Honour, for all the reasons that I've given,
20 it is entirely different. We are talking about a violent ethnic
21 cleansing campaign involving thousands -- tens of thousands of armed
22 forces going door-to-door to expel the population. In this situation, we
23 say it really is at odds with everything we know about the way the world
24 operates, the way conflict operates, the way violent expulsion campaigns
25 operate, to find that sexual assault would not even be foreseeable as a
1 possibility. Indeed, all of the other Trial Chambers' findings point in
2 that same direction. They accepted that this wasn't some separate
3 opportunistic isolated act. Otherwise, they would not have found that it
4 formed part of the widespread and systematic attack. They accepted that
5 the crimes, apart from the Pristina ones, which is subject to our
6 ground 4, were committed with discriminatory intent. Again, something
7 that shows these were part and parcel of the campaign.
8 In those circumstances, Your Honours, we ask you, in correcting
9 the Trial Chamber's legal error, to really ask yourselves whether you are
10 satisfied that these acts were foreseeable and that they were committed
11 with discriminatory intent. And for all the reasons that I've given, we
12 say your answer should be yes.
13 JUDGE LIU: Thank you. Judge T also has a question.
14 JUDGE TUZMUKHAMEDOV: Thank you. Ms. Jarvis, this may be a
15 recurring theme from yesterday, but yesterday I asked a question of your
16 colleague Ms. Kravetz about the possible, if identifiable, specific
17 exclusion by the Trial Chamber of the possibility that other factors
18 during the armed conflict, apart from sexual assaults or murder or
19 damage, and destruction of religious objects, for that matter, could have
20 contributed to the displacement of at least some of the 700.000
21 Kosovo Albanians. And my question yesterday was initially answered by
22 Ms. Kravetz, and then after the break, having done some homework,
23 Mr. Wood supplemented her initial answer with reference to particular
24 paragraphs of different volumes of judgements, thus implicitly and
25 discreetly, and in very polite manner, inviting me to do some homework
1 which I had to do even though at the expense of a glass of wine over
2 supper. And I think that after this homework the question remains,
3 because looking at the paragraphs to which Mr. Wood directed my
4 attention, I discovered only one very specific, up to a single number,
5 reference to the numbers of Kosovo Albanians who crossed the border from
6 Kosovo into Albania and Macedonia, and that was referenced to reports
7 that were sent by the MUP personnel on the ground through the MUP
8 channels to Belgrade headquarters, and that number was 715.158 during the
9 period from 24 March to 1 May.
10 My further accomplishment while working on that home assignment
11 proved that the Trial Chamber in paragraph 1175 of Volume II, which
12 Mr. Wood directed my attention to, was mindful of the fact that people
13 may have left their homes for different reasons and there were several
14 reasons unrelated to the primary reason of crimes including sexual
16 So I guess my question remains, while the Trial Chamber Volume II
17 is using the language of almost 700.000 Kosovo Albanians being displaced,
18 your language was different and twice you referred to forcible
19 displacement of, and I quote, "upwards of 700.000 humans." So I guess my
20 question remains, that is whether you could direct me to the
21 Trial Chamber where it beyond reasonable doubt, based on evidence other
22 than reports of the MUP, made a conclusion that the displacement of
23 almost or upwards of 700.000 could be attributed to the common plan of
24 members of JCE. Thank you.
25 MS. JARVIS: Your Honour, it may be that that's a question we
1 could come back to you with perhaps after the break or during our reply
2 as I would need to take some time to check the -- the judgement and the
3 evidentiary records.
4 JUDGE TUZMUKHAMEDOV: Certainly, but not at the expense of your
6 MS. JARVIS: No, Your Honour, I think it's quite enough that you
7 had to take up time last night. We certainly won't interfere with lunch
8 plans today. But given the history of this and given the answers that
9 have already been given to you by my colleagues, Ms. Kravetz and
10 Mr. Wood, I think it would make most sense and would be of most
11 assistance to Your Honours if we could have a moment to consider our
12 answer and get back to you with that. Thank you.
13 JUDGE LIU: Well, it seems to me there's no questions from the
15 MR. MILANINIA: Good morning, Your Honours. Your Honours, as
16 Mr. Kremer has indicated earlier this morning, I intend to cover very
17 briefly ground 2 of our appeal concerning the acquittal of
18 General Lazarevic for aiding and abetting the murders in Korenica, Meja,
19 and Dubrava.
20 THE INTERPRETER: Kindly slow down for the sake of the
21 interpreters, please. Thank you.
22 MR. MILANINIA: Your Honours, the Trial Chamber's legal error
23 which caused it to acquit General Lazarevic of these crimes can be found
24 at Volume III, paragraph 928 of the judgement where it specifically
25 requires that General Lazarevic be aware that VJ and MUP forces were
1 going to commit murders at the specific crime sites at issue.
2 Your Honours, this Tribunal has rejected this type of precision
3 for the mens rea of aiding and abetting. The mens rea for aiding and
4 abetting only requires awareness of the likelihood that the crime will be
5 committed and that one's acts and omissions will contribute to that
6 crime. It does not require, Your Honours, awareness as to where, when,
7 or even how that crime will be committed.
8 This principle was enunciated in the Simic appeals judgement at
9 paragraph 86, and was further explained in the Oric trial judgement at
10 paragraph 288, which explicitly noted that the aider and abettor need not
11 foresee "the place, time, and number of the precise crimes."
12 Your Honours, I also refer you to paragraphs 37 and 38 of our appeals
13 brief for additional legal support.
14 When applying the correct standard in this case, the
15 Trial Chamber made clear findings that General Lazarevic was aware that
16 murders were likely to be committed by his VJ forces. Indeed, the
17 Chamber admits at Volume III, paragraph 928, that General Lazarevic was
18 aware of VJ members killing Kosovo Albanians in some instances. That
19 knowledge, Your Honours, was established by the Chamber's findings that
20 throughout 1998 and 1999 and before the killings at issue,
21 General Lazarevic was constantly informed of VJ involvement in the murder
22 of Kosovo Albanian civilians.
23 Your Honours, we detailed those findings in full in our brief at
24 paragraphs 49 to 47 [sic]. However, for your convenience, I'll quickly
25 highlight a few of those.
1 The Trial Chamber found that at the end of 1998,
2 General Lazarevic knew of VJ involvement in the killings of Kosovo
3 Albanian civilians. For instance, he was informed of UN Security Council
4 Resolution 1199 which noted that excessive and indiscriminate force by
5 the VJ had resulted in numerous civilian casualties.
6 From the beginning of the 1999 campaign, VJ forces continued to
7 target and kill Kosovo Albanian civilians.
8 For example, Your Honours, by the end of March 1999, a few days
9 into the campaign, General Lazarevic was informed of the killing of
10 Kosovo Albanians in the village of Zegra.
11 A week later, at the start of April 1999, General Lazarevic was
12 aware of a press release stating that Serb forces were responsible for
13 killing Kosovo Albanians in the villages of Pudojevo, Pec, and in the
14 Orahovac municipality.
15 A few days later, on April 3rd, 1999, General Lazarevic himself
16 noted the receipt of numerous criminal reports including those for
18 And, Your Honours, a few weeks later, on April 26, 1999, the day
19 before the massacres in Korenica and Meja, General Lazarevic was informed
20 that his subordinates may have executed 20 Kosovo Albanian civilians in
21 the village of Mali Alas just a week earlier. And approximately one
22 month later, on May 24th, 1999, after the murders in Korenica and Meja,
23 and a day before the murders in Dubrava, General Lazarevic himself issued
24 a report discussing murders being committed throughout the Kosovo
25 campaign at mixed MUP-VJ military check-points and warning about future
2 Your Honours, General Lazarevic was also aware that a central
3 component of the 1999 campaign was a use of force and violence against
4 Kosovo Albanian civilians. You can find that at Volume III, paragraphs 855
5 and 924.
6 The use of violence was particularly likely in the Reka Valley
7 operation, during which the massacres in Korenica and Meja occurred,
8 given that the operation was specifically undertaken to revenge the
9 killing of five policemen on April 22nd, 1999. You can find that at
10 Volume II, paragraphs 168 and 179.
11 Your Honours, to conclude my remarks on the Chamber's findings
12 regarding mens rea, I simply remind you that these are examples of a sample
13 of the Chamber's findings concerning General Lazarevic's knowledge of the
14 murders of Kosovo Albanian civilians by the VJ.
15 For the Chamber's findings concerning actus reus, Your Honours, I
16 refer you to our written submissions and also Volume III, paragraphs 923,
17 829 and 925, which discuss how, with this knowledge, General Lazarevic
18 ordered the VJ to operate in Kosovo in 1999 and continued throughout May
19 and June to participate in planning the joint operations.
20 I wish to make one final note before I pass the podium to my
21 colleague Mr. Kremer that with regards to the specific direction
22 requirement established in the Perisic appeal judgement, I simply note
23 and incorporate the detailed submissions made by my colleague
24 Mr. Marcussen on Wednesday. To summarise Mr. Marcussen's points, there
25 are four cogent reasons to depart from the Perisic appeals judgement.
1 Further, to the extent specific direction is an element of aiding and
2 abetting, it was established implicitly in this case, first,
3 General Lazarevic was on the ground in Kosovo during the campaign in
4 which the murders were committed. For this reason alone, his acts and
5 omissions must be considered proximate to the crimes. Second,
6 General Lazarevic must be considered a proximate aider and abettor as he
7 was the commander of the forces involved in the murders. And lastly, as
8 noted by Mr. Marcussen on Wednesday, he detailed the relationship between
9 General Lazarevic acts and conduct and the crimes committed in Korenica,
10 Meja, and Dubrava. Accordingly, Your Honours, the culpable link between
11 General Lazarevic's acts and omissions and the murders were established
12 in this case.
13 Your Honours, due to the brevity of time and in order to enable
14 Mr. Kremer to do a fuller submission on sentencing, that concludes my
15 submissions on ground 2.
16 JUDGE LIU: Thank you.
17 MR. MILANINIA: Thank you.
18 MR. KREMER: I will deal with ground 6, the Prosecution appeal
19 from the sentences imposed by the Trial Chamber on the accused.
20 Your Honours have heard that in a little over two months,
21 beginning in late March 1999, the accused together, through their
22 individual contributions, ruined the lives of over 700.000 Kosovo
23 Albanians by forcing them from their homes and displacing them into
24 Albania, Macedonia, and Montenegro. The sentences of 22 years'
25 imprisonment for the JCE members Sainovic, Pavkovic, and Lukic and
1 15 years for the aider and abettor Lazarevic were wholly inadequate and
2 manifestly disproportionate to the gravity of the crimes and their role
3 and degree of participation. It is our submission, as set out more fully
4 in our brief, that the Appeals Chamber should set aside these sentences
5 and substantially increase them for each of the four accused.
6 One cannot sensibly talk about the Chamber's errors in sentencing
7 without first discussing the crimes for which the accused were convicted.
8 Throughout the week and even this morning, the Chamber has received but a
9 glimpse of the scale and cruelty of the crimes committed against Kosovo
10 Albanians in 1999, as well as the systematic and premeditated nature of
11 those crimes.
12 The Chamber has also received submissions regarding the role each
13 accused played in orchestrating and executing these crimes. As the
14 Chamber has already heard, on 24 March 1999 and under the cover of the
15 NATO bombings, VJ and MUP forces launched a co-ordinated campaign of
16 violence and terror throughout Kosovo intended to expel the Kosovo
17 Albanian population. Almost every major town in Kosovo was attacked in
18 the campaign's first three days. Over 600.000 Kosovo Albanians were
19 expelled by the end of the campaign's second week. By the beginning of
20 June 1999, the Chamber found that the forcible displacement and other
21 crimes were committed by Serb forces in over 27 towns and villages
22 throughout 13 representative municipalities.
23 Today I will give you a brief picture of the scale and nature of
24 these crimes and their impact on victims. I will not -- try not to
25 repeat what has been said earlier this week or this morning, and I will
1 start with Pristina, which exemplifies the crimes committed throughout
2 the larger towns in Kosovo.
3 The attacks in Pristina can be found in Volume II, paragraphs 801
4 to 890.
5 On March 24th, 1999, and simultaneous to the beginning of the
6 NATO attacks, the VJ and the MUP and other armed Serb forces began their
7 attack on the large Kosovo population in Pristina. Months and weeks in
8 advance of the attacks in Pristina, VJ and MUP forces laid the groundwork
9 for the mass expulsion campaign through the secret arming and disarming
10 process and by reinforcing MUP, VJ, and Serb military forces in and
11 around Pristina despite the absence of significant KLA presence in the
13 From the outset, Kosovo Albanians were subject to threats and
14 acts of violence, including beatings, murder, the looting and burning of
15 homes, the sexual abuse of women, and forced evictions. I refer you to
16 Volume II, paragraph 885.
17 VJ and MUP forces targeted and murdered prominent Kosovo
18 Albanians as a clear message to other civilians of what was to come and
19 to frighten them to flee. Volume II, paragraph 823.
20 Expulsions were an almost daily occurrence from the 24th of March
21 until at least 3 April 1999. And that's found in Volume II,
22 paragraph 817 to 832.
23 In some instances, armed VJ and MUP forces went from home to home
24 forcibly evicting Albanians into the streets and threatening them to
25 leave. Your Honours, the following slide is a quote from K63's written
1 statement, Exhibit P2443. K63 was a Kosovo Albanian found credible and
2 relied upon by the Trial Chamber. I refer you to paragraphs 805 and 839
3 of Volume II. He and his wife, K62, who you've heard about already, she
4 was a victim of the Pristina rapes, resided in Pristina before being
5 forcibly expelled. He said in the statement:
6 "I saw police going to flats and ordering the Albanians out.
7 They would say, 'Go to Albania, Kosovo is not your land.' I saw that
8 once people left their flats with nothing more than a bag of food and
9 clothing, that the police moved in and positioned themselves in those
11 Dr. Emin Kabashi, another Albanian resident in Pristina, noted
12 that he received calls from Serbs telling him to leave for Albania or
13 else he would be killed. Volume 2, paragraph 828.
14 Once the Albanians were forced from their homes, VJ and MUP
15 forces in Pristina put doors -- put signs on doors of vacated Albanian
16 homes, stating: "This is a MUP apartment."
17 Many of these homes were then occupied by the VJ and MUP
18 themselves and used to house official organs of the FRY and Serbian
19 government. Volume II, paragraphs 832 and 833. Daily, thousands of
20 Kosovo Albanian Pristina residents were herded into the centre of town
21 and formed into a convoy. As they left the town centre, carefully
22 positioned policemen and soldiers pointed their weapons to direct them
23 and the flow of the Kosovo Albanians. Volume II, paragraph 841, 848,
24 849, and 885.
25 The convoys were directed down the main road past exit points
1 with armed Serb forces to the town's train centre -- or train station.
2 Volume II, paragraph 850. Kosovo Albanians who attempted to flee the
3 convoy were mistreated or killed. Snipers were positioned in a nearby
4 building. Volume II, paragraph 846. Thousands of Kosovo Albanians from
5 the Pristina municipality gathered at the train station where they were
6 forced onto trains or onto buses outside the station and taken to the
7 Macedonian border. Volume II, paragraphs 852 to 864.
8 Nazlie Bala, a Kosovo Albanian resident of Pristina, noted that
9 the train that she was forced onto carried armed MUP and VJ personnel on
10 the first and last cars. The train was so crowded, she said, that it was
11 difficult to breathe. Volume II, paragraph 854.
12 Dr. Kabashi was at the train station for three days and three
13 nights before he was forced to board a goods train that took him to the
14 Macedonian border. He saw five to 12 trains arriving at the station
15 every day, leaving with people who were forced onto the train by the
16 police. He noted that the Albanians were herded like cattle. Volume II,
17 paragraph 856.
18 The Chamber concluded that during the displacement campaign, the
19 train schedules were purposefully modified so that a greater number of
20 trains than usual would arrive at Pristina carrying more than the usual
21 number of cars. These changes demonstrated a high level of co-ordination
22 between not only the VJ and MUP forces carrying out the displacement
23 campaign but also the railway agencies. That's at Volume II,
24 paragraph 854.
25 At stops during the train journey to the border, the Kosovo
1 Albanians were subject to abuse and threats. The trains were surrounded
2 by Serb forces. VJ and MUP forces shouted insults at the Kosovo
3 Albanians, cursing at them and shouting, "Kosovo does not belong to you,
4 Albanians. It belongs to Serbs. We're going to kill you, Albanians."
5 Volume II, paragraph 859.
6 When the trains reached the Macedonian border, the Kosovo
7 Albanians were told to disembark, form a line and walk in the middle of
8 the train tracks to avoid land mines. Their identity documents and
9 passports were seized and destroyed. Finally, at gunpoint, the Kosovo
10 Albanians were forced to cross the border into Macedonia. I refer you to
11 paragraph -- Volume II, paragraphs 860 to 863, and 973.
12 I highlight the written statement of Dr. Kabashi, Exhibit 2252,
13 which was used in the trial judgement and this is before you now. And I
14 think it poignantly sets out the result and the impact of the victims who
15 were forced to leave Pristina and Kosovo. He said:
16 "I did not want to leave Kosovo. We left because we were forced
17 by the actions and words of the Serb police and army to leave. As a
18 family, we were not organised to fight. I do not know who can stay in
19 Kosovo when threatened by gun. The population was totally undefended.
20 We were mainly the elderly, women, and children. If you had seen the
21 sights at the train station in Bllaca, you would have thought that all of
22 the children in the world had gathered there. The reality of the
23 situation was displayed at the railway station and at Bllaca in that
24 there was not a single person who was not in tears. This was not a road
25 where these columns passed -- there was not a road where these columns
1 passed where there were not dead people."
2 The Trial Chamber found that the breadth of the crimes and the
3 organised nature of the forced expulsions of Kosovo Albanians in the
4 Pristina municipality were a result of significant planning and
5 co-ordination at the highest levels of authority. Volume II,
6 paragraph 888.
7 And as my colleague Ms. Jarvis described this morning and you've
8 heard earlier in submissions this week, Sainovic, Pavkovic, Lukic, and
9 Lazarevic were all in Pristina town during these events.
10 Let me now turn briefly to my second example, the VJ MUP attacks
11 on Orahovac municipality. These illustrate how the campaign of terror
12 and violence against the Kosovo Albanians was implemented in smaller
13 towns and villages throughout Kosovo and that the attacks on Pristina and
14 other large towns were not committed in isolation.
15 On March 25th, 1999, the day after the attacks were launched in
16 Pristina, VJ and MUP forces launched a wave of attacks in the Orahovac
17 municipality, on the towns of Celina, Pirane, Bela Crkva and Mala Krusa,
18 four towns located in the south-west region of Kosovo near the province's
19 border with Albania.
20 As has been discussed this week, these attacks were ordered by
21 the Joint Command two days earlier, directing a joint action between the
22 549th Motorised Brigade and the MUP. That's Volume II, paragraph 296.
23 On the morning of March 25th, VJ tanks together with MUP forces
24 began shooting towards Bela Crkva as a warning to Albanian civilians to
25 leave the village. Serb forces then entered the village and together
1 with local police set Kosovo Albanian houses on fire using petrol and
2 flame throwers. Upon hearing the shooting, Kosovo Albanian villagers
3 began to flee to the Belaja stream to conceal themselves using the
4 stream's high banks. And that's Volume II, paragraphs 341 and 343.
5 MUP forces followed the villagers and began shooting at them with
6 automatic weapons, killing at least 10 civilians, including women and
7 children, while shouting, "Fuck your mother. Ask NATO for help now."
8 Volume II, paragraphs 346 and 348.
9 Of the remaining villagers, the women and children were separated
10 from the men and ordered towards the direction of Albania. The men were
11 ordered to strip to their underwear, robbed of their valuables, and had
12 their passports, identity cards and driver's licenses destroyed. After
13 being forced to climb down into the stream, at least 42 men were
14 summarily executed. Volume II, paragraphs 350 to 354, 380 to 382, and
16 Just south of Bela Crkva in the nearby town -- village of Celina,
17 a similar matter of events unfolded simultaneously and these have been
18 dealt with by Mr. Marcussen in his submissions. Simultaneous to the
19 attacks in Celina and at Bela Crkva, VJ and MUP forces surrounded the
20 village of Mala Krusa. VJ soldiers shelled the village, then MUP forces
21 entered the town, looting and burning homes.
22 Again the villagers fled to the woods where they were followed by
23 the -- or found by the MUP and forced to return. The women and children
24 were separated from the men. The men were put into a barn, men including
25 teenagers, mentally and physically disabled, and elderly. Before they
1 were put in a barn they were robbed of their valuables and their identity
2 documents and then they were summarily executed, and the barn was
3 subsequently burned to the ground after it had been set on fire by the
4 MUP. And that's all found at paragraphs 402 to 408 -- or to 409,
5 paragraphs 432 and 1161.
6 These examples are but two of the many instances of crimes
7 committed by VJ and MUP forces over the two-month campaign of violence
8 and terror aimed at driving out the Kosovo Albanian population. The full
9 record of the Trial Chamber's factual findings is found in Volume II from
10 paragraphs 1 to 1178. I won't repeat, as my colleague Ms. Jarvis has
11 taken you to it this morning, paragraph 1178 which is the summary of the
12 factual findings that the Chamber made outlining its conclusions
13 regarding the action. I do just want to point out that in the -- I think
14 penultimate sentence, the Chamber said it was the deliberate actions of
15 these forces during this campaign that caused the departure of at least
16 700.000 Albanians from Kosovo in the short period of time between the end
17 of March and the beginning of June 1999.
18 The responsibility of the accused has been spoken about for the
19 entire week. Each of them was at a higher level of authority and was
20 responsible for the crimes in Kosovo. Each accused contributed to the
21 commission of crimes in 1999 and for those contributions was found guilty
22 as a JCE member or as an aider and abettor.
23 Given the time, I don't plan to review their contributions.
24 They've been covered several times by both the Prosecution and the
25 Defence, and I'll just close my remarks very briefly by dealing with the
1 error and why it should be corrected.
2 The Chamber erred in imposing sentences, in our submission, that
3 were manifestly inadequate and disproportionate to the crimes committed.
4 If you look at the Chamber's sentencing analysis, you will find that it
5 was cursory and failed to properly account for the certain mandatory
6 factors when assessing the seriousness of crimes. Specifically, the
7 Trial Chamber's analysis on the gravity of offences was limited to
8 six paragraphs and it failed to address the discriminatory nature of
9 crimes and their impact on the victims. And I gave you the illustration
10 of the impact of victims because although I only quoted from two or
11 three, that that is multiplied several hundred thousand times. Indeed,
12 there is virtually no decision on the brutal nature of the crimes or the
13 effects of the crimes on the Kosovo Albanian victims and their relatives.
14 The Blaskic Appeals Chamber judgement, paragraph 683, found that these
15 are mandatory considerations when dealing with gravity.
16 The Chamber's cursory sentencing analysis is exemplified by the
17 decision to apportion sentences strictly on the basis of individual
18 criminal liability and the specific mode for which the accused was
20 The Chamber did not individualise the sentence based on the
21 individual accused's position, his contribution or even the crimes for
22 which he was convicted, which would have been an obvious analysis that
23 would have been required. At Volume III, paragraph 1175 of the
24 judgement, under the heading "Gravity of Crimes," the Chamber erred by
25 taking into account each accused's convicted mode of liability and
1 ignoring specific contributions.
2 JUDGE LIU: Mr. Kremer, I'm afraid that your time is up.
3 MR. KREMER: If Your Honour could give me one minute, I assure
4 you I will finish.
5 JUDGE LIU: Yes, one minute.
6 MR. KREMER: Thank you. And as Your Honour just heard from my
7 colleague Ms. Jarvis, the accused were convicted of different offences.
8 Pavkovic was convicted for sexual offences and our appeal points out that
9 Lukic and Sainovic were acquitted.
10 And the Trial Chamber could have taken this into account. It
11 also could have taken into account the brutality, as I've pointed out,
12 and the fact that each played a distinct, different, and important role
13 but some assessment was required for that. But ultimately the -- the
14 issue is: Were the sentences of 15 years and 22 years respectively for
15 the aider and abettor and the JCE members disproportionate to the
16 seriousness of the crimes? Our submission is that common sense tells you
17 that it was disproportionate. Twenty-two years and 15 years for the
18 size, nature of the crimes, 700 [sic] lives ruined as a result of
19 premeditated and violent actions in a very short time, suggests that
20 particularly given the -- the additional crimes that went along with it
21 in order to promote the violence and terror to get the people to flee
22 justify more severe sentences. In fact, we urge the Chamber to look at
23 imposing the most severe sentences that the Statute allows.
24 Subject to any questions, that would be my remark.
25 JUDGE LIU: Thank you very much. We will have a break and we
1 will resume at 11.00 so as to hear the response from the appellants.
2 --- Recess taken at 10.35 a.m.
3 --- On resuming at 11.00 a.m.
4 JUDGE LIU: Now we are going to hear the response from the
5 appellants. Counsel for Mr. Sainovic.
6 MR. PETROVIC: [Interpretation] Thank you, Your Honour. I will
7 address the Honourable Appeals Chamber on the grounds 1 and 3 of the
8 Prosecution appeals brief, while my learned friend Mr. Fila will talk
9 about the 6th ground.
10 Although my learned friends did not address the first ground of
11 their appeal today, I will, however, make two or three points that the
12 Chamber should consider when assessing whether the first ground of appeal
13 of the Prosecution is founded or not.
14 In drafting the third amended indictment which was the basis for
15 all the allegations in this case, the Prosecutor failed to or omitted to
16 as part of ground 5 include the paragraphs which would detail the
17 punishable conduct, and this is paragraph 76, which should have included
18 paragraph 72 describing the acts of deportation and forcible transfer.
19 This was a discernible error on the part of the Prosecution which was
20 noted early on at trial, as early as the 30th of October, 2006. The
21 President of the Trial Chamber drew the attention of the Prosecution to
22 that defect and said that paragraph 76 does not contain the necessary
23 references for paragraph 72 detailing the acts of deportation and
24 forcible transfer. The trial attorney in that case said that he
25 understood what the Trial Chamber meant but had no response to offer, and
1 that was how the discussion ended.
2 Now, the next occasion that the Prosecution had for that same
3 issue was the Trial Chamber's decision on 98 bis, that is to say, the
4 98 bis decision by the Trial Chamber, which clearly states that the
5 Trial Chamber found that the specific details concerning the deportation
6 and forcible transfer contained in paragraph 72 was simply not included
7 in ground 5 -- in count 5 of the indictment. This was the gist of what
8 the 98 bis decision said. The Prosecution heard that. They had an
9 opportunity to appeal the decision, but that was never done. The first
10 time when the Prosecutor sought to rectify this defect was in the appeal
11 against the trial judgement.
12 In our view, the failure on the part of the Prosecution to
13 intervene in these two -- on these two occasions at trial preclude the
14 Prosecution from the possibility to do so at this appeals stage, to
15 redress this fault on their part which should have been properly
16 addressed at trial. Any intervention at this stage would be directly
17 detrimental and prejudicial for the accused. On this basis, we submit
18 that the Appeals Chamber should dismiss this Prosecution ground of
19 appeal, and I refer you for the details to our reply to the Prosecution
21 With your leave, Your Honours, I'd like to address briefly what
22 was stated here today under ground 3 of the Prosecution appeal, which is
23 divided into two parts. The first one seeks that the legal standard
24 applied be rectified, and the second has to do with the establishment of
25 the circumstances which should lead to a different finding. This refers
1 to the factual findings contained in ground 3.
2 Although mention was made of this matter over the past couple of
3 days, I would like to recall in part what in our understanding are the
4 legal standards that the honourable Chamber should apply in considering
5 this ground of appeal.
6 Regardless of what sort of position the Appeals Chamber will take
7 with regard to the legal standard of foreseeability and possibility,
8 whether they will adhere to the Brdjanin judgement standard or to the
9 position advanced in the interlocutory appeals decision in the Karadzic
10 case, there is another additional part of the standard which the
11 Prosecution does not find needs to be challenged and which in our view
12 gives the gist of the reasoning of this count of appeal.
13 The definition which the Prosecution does not find needs to be
14 challenged as part of JCE III speaks about reasonable foreseeability
15 based on the information available to the accused. Now, this part of
16 definition, information available to the accused, is not to be challenged
17 and in our view is the key issue that can help resolve the situation.
18 What does the Appeals Chamber in the Karadzic case say? They say
19 that regardless of the application of the possibility standard, the
20 requirements cannot be met where there is a scenario of remoteness. The
21 possibility that a crime may be committed must be substantial enough in
22 order to be foreseeable to the accused. What does this clearly state?
23 Well, this clearly states that the Appeals Chamber does not support a
24 comprehensive, limitless definition that the Prosecution advocate.
25 What would be the consequence of the Prosecution's understanding
1 of this matter? Well, that there is a JCE and that there is the mens rea
2 for the common purpose and that any other crime may be qualified or
3 characterized as the crime meeting the requirements for the JCE III.
4 The consequences that stem from the Prosecution's understanding
5 of it is automatism. If there are the requirements and if there is the
6 act of forcible transfer and deportation as the first part of the joint
7 criminal enterprise, the standard has been met according to which the --
8 automatically where what would be foreseeable would also be the criminal
9 assaults -- the sexual assaults. We believe that there can be no
10 automatism and that, as is the case everywhere else, evidence needs to be
11 identified supporting the decision. If we adopted the concept advanced
12 by the Prosecution, we would slip into automatism and this would preclude
13 the need for these specific crimes to be proven to begin with.
14 Now, as for whether these crimes exist or do not exist, this is
15 something that can be assessed on the basis of the available information.
16 The scenario of remoteness alone cannot suffice to attach responsibility
17 for these crimes to the accused.
18 How do these matters stand with regard to our client,
19 Mr. Sainovic? In explaining these circumstances, at paragraph 472,
20 Volume II, the Trial Chamber concluded that the Prosecution did not
21 adduce evidence which would enable it to find that the sexual assaults
22 were reasonably foreseeable to Sainovic, and what clearly transpires from
23 this paragraph is that the Prosecution -- rather, the Trial Chamber
24 reached its findings by applying the standards from the Kvocka and Krstic
25 cases. In our view, the Trial Chamber assessed these circumstances
1 carefully and based their findings on it.
2 Today our learned friends pointed out the existence of three
3 factors that should serve as evidence: That it had to be reasonably
4 foreseeable to Sainovic that within the alleged campaign that was carried
5 out the acts of sexual assaults would occur, that there was a campaign of
6 fierce violence, and that on the basis of the existence of this campaign,
7 there is foreseeability that these crimes would occur.
8 If we look at the Prosecution appeals brief about Sainovic's
9 knowledge of this campaign of fierce violence, we will find several
10 statements only referring to 1998, the events at Gornje Obrinje, the
11 events at Racak, the events at Malisevo. However, all those events, and
12 this is something that we address in detail in our reply, clearly
13 indicate that there was no sexual violence and that there was nothing
14 that could lead to the conclusion that there might have occurred such
15 crimes. However, the Prosecutor makes a contradictory statement. Most
16 of the submissions we heard from the Prosecution over the past several
17 days were based on allegations that there was something that existed in
18 1998, and that this something that existed in 1998 could therefore only
19 and exclusively exist in 1999.
20 As for the evidence in relation to 1998, there was nothing that
21 would point to any sort of crime that may be related to sexual violence.
22 We provided our detailed reasoning of this in writing, and I believe that
23 my learned friend Madam Prosecutor conceded that on the basis of the
24 knowledge from 1998, the accused could not have this sort of
1 If we were to accept this logic of the Prosecution, if year 1998
2 were indeed a warning, a basis for such knowledge, then it's clear that
3 Nikola Sainovic did not have that warning, and it cannot be established
4 that that type of crime could have been foreseeable based on what he knew
5 from the time before, before the JCE began.
6 The Prosecution mention in their brief and also today the strong
7 animosity between Serbs and Albanians as an indication that all types of
8 violence, including this type of violence, were all possible, but we do
9 not find this in information available in 1998. The Prosecution
10 establishes violence in 1998. They link it with 1999. However, this
11 type of violence did not exist in 1998. The question of animosity is an
12 issue between Serbs and Albanians in Kosovo that goes back decades,
13 perhaps longer. But the history of the region shows that this animosity
14 does not include the acts discussed here.
15 What is especially curious is the OTP mentions that Sainovic
16 could have assumed that if the same units were in Kosovo that had been
17 present in Bosnia and elsewhere years before, they could commit the same
18 type of act in Kosovo. It is a big question what exactly Sainovic knew
19 about which units were engaged, what they had done before. This is a
20 claim that something could be foreseen based on the broadest knowledge of
21 the history in the former Yugoslavia. In the opinion of this Defence,
22 this foreseeability based on general history is not carry an argument
23 that carries any weight in these proceedings.
24 The Prosecution mentions again today that Sainovic was in
25 Pristina on several occasions. They mention two dates, 29th March and
1 4th April. That he was able to see displacements and transfers and could
2 have, based on that, foreseen sexual assault. There is no evidence about
3 what Sainovic had seen. This is all based on assumptions. But what
4 could illustrate the state of mind of Sainovic is that he was in Pristina
5 on these dates in order to negotiate with Mr. Rugova to try to find a
6 political solution for the problems in Kosovo. Linking his visits and
7 his attempts to resolve the situation through negotiations with what he
8 might have seen is something we have no evidence of, and this Defence
9 believes it is completely inappropriate.
10 We therefore believe that the honourable Appeals Chamber should
11 reject the third ground of appeal by the Prosecution.
12 If I may only mention two more things within my time limit. Of
13 course, the Defence of Mr. Sainovic believes that every act of sexual
14 violence is heinous and deserves the harshest punishment, but we believe
15 also that all the evidence shows that Mr. Sainovic has absolutely nothing
16 to do with such acts. However, it is also necessary to emphasise that
17 the Prosecution speaks of a campaign that lasts for days, weeks, for
18 months, throughout Kosovo, a campaign that involves over 700.000 people.
19 What do we have in terms of facts concerning sexual assaults?
20 There are two acts, and we do not dispute their weight. We're just
21 emphasising the number. The first one is the 29th March, 1999, in Beleg,
22 and the other is in mid-April in Cirez. It is obvious that these are
23 isolated crimes. It is obvious that if it is true that hundreds of
24 thousands of people were involved, we have two incidents involving
25 eight victims. This is not to diminish the suffering of the victims, but
1 this is an indication of the isolated and sporadic character of these
2 incidents. The isolated and sporadic character of the incidents refutes
3 the claim of the Prosecution that Sainovic, together with the others
4 accused of being involved in the JCE, could have foreseen these acts of
5 sexual violence.
6 And very briefly concerning the fourth ground of appeal. Three
7 incidents are involved. Our position is that these incidents show no
8 discriminatory intent, that the Prosecution is trying to copy-paste the
9 general characterization of the attacks on these incidents of violence
10 and that these incidents belong in the category of general crime,
11 certainly not crime with discriminatory intent, and there is no basis,
12 absolutely none whatsoever, for accepting this ground of the
13 Prosecution's appeal.
14 Thank you very much, Your Honours. Mr. Fila will take over now.
15 MR. FILA: [Interpretation] Mr. President, ladies and gentlemen,
16 Judges. I shall deal with the part of the Prosecution appeal which in my
17 eyes is impermissible and, among other things, immoral. The reason is
18 this: At trial, the Prosecution spent two years in prosecution with us
19 and the Trial Chamber. We saw every witness, every document. We saw the
20 conduct of the accused, and when all this was over, the appeal brief of
21 the Prosecution asked for at least 20 years' sentence for Milosevic [as
22 interpreted], Sainovic, and others. Milutinovic, as you know, was
23 acquitted, but Sainovic was sentenced to 22 years, which is the required
24 sentence plus two years.
25 I want to tell you one thing. I'm probably the oldest lawyer
1 before this Tribunal. I've been here since February 1996 - I think
2 Prosecutor Mark Harmon is the only one who's been here longer - and I've
3 never seen anything like this.
4 I want to tell you, and I'm proud of this, that the co-operation
5 we had here between the Prosecution, the Defence, and the Trial Chamber
6 is absolutely unprecedented. Let me show you two examples that was in
7 private session, a discussion between the Prosecution and the
8 Trial Chamber. If you want to allow me to do this, we would have to move
9 into private session. If not, I will move on.
10 JUDGE LIU: Yes. Let's go to the private session.
11 [Private session]
23 [Open session]
24 THE REGISTRAR: Your Honours, we're back in open session.
25 JUDGE LIU: You may proceed, Mr. Fila.
1 MR. FILA: [Interpretation] Why did I mention these two examples?
2 Because I wanted to present to the Appeals Chamber the meaning of
3 promise. What does a colleague's and lawyer's word mean if they appear
4 before this Tribunal? If we were to say one thing and do another, we
5 would be politicians. We would be sitting in the Assembly where nobody
6 knows what other people are saying or what they are -- what they mean.
7 This is a serious Tribunal.
8 What did we gain instead of -- of the consistency? Milutinovic
9 was acquitted. He didn't get 20 years. He didn't get life. Can there
10 be -- is there an appeal against that? No. Ojdanic got 15. The
11 Prosecutor appealed and had the right to do that because the sentence is
12 for under 20 years, and what happened? They gave up on that appeal.
13 This is another situation that you have to have in mind.
14 And the first situation is the one that I'm in with Sainovic.
15 They got what they wanted, and they appealed. I'm not contesting the
16 part of the appeal that has nothing to do with sentencing. I'm not
17 contesting that. They have the right to appeal. What I am saying here
18 is that the parties to these proceedings are bound by their positions
19 which they present during the case. If a party to the proceedings voices
20 a position, they have to adhere to that. Every aberration from any such
21 position introduces elements of legal insecurity into the whole
22 proceedings. That's why I read the Prosecutor's answer about the
24 You know very well that the accused in the proceedings have the
25 right to be aware of the indictment against him. They have the right to
1 be informed about their position. They have the right to adjust their
2 defence to the nature of the indictment and all the other allegations
3 against him. If the Prosecution acts based on the evidence and their own
4 legal position with regard to sentencing, then the Prosecution does that
5 based on their assessment of the evidence, and I am emphasising the word
6 "their own," because in -- in the proceedings, the Prosecution asked for
7 that sentence because they thought that the entire indictment will be
8 taken into account and will be the grounds for sentencing. And this
9 didn't happen.
10 I cannot imagine as a Defence counsel that the Prosecution, based
11 on the same evidence, because no other new evidence was presented here,
12 and the same legal theory during one phase of the procedure asked for one
13 sentence and then in another phase of the procedure without any evidence
14 and about -- any changes with regard to the position of the accused, they
15 want another sentence. This is not fair. This is not professional.
16 This is not how colleagues act. This is not in keeping with our joint
17 obligation to serve justice and respect the rights of all the parties to
18 the proceedings, meaning the accused and the victims, the Defence, and
19 the Prosecution. Any aberration from the original position that the
20 Prosecution presented during the first instance case now, in this phase
21 of the procedure, has to be based on other evidence or drastically change
22 legal practice.
23 How is it possible for somebody who did not see those people, who
24 did not see the case file -- or, rather, saw only the case file and has
25 only indirect knowledge about what was going on during the two years can
1 see better than the Prosecutor who was here. Two of the members of that
2 first instance Prosecutor's office are now here, Mr. Marcussen and
3 Ms. Kravetz, and it seems that they have changed their opinion in the
4 meantime. You know, in the law that I practice in my own country before
5 the Special Tribunal which is a Tribunal that tries the cases of drug
6 trafficking, corruption, and other grave crimes, the Prosecutor asks for
7 a certain sentence, and when they receive that sentence, they do not have
8 the right to appeal. It has never happened. They can appeal if they
9 don't like a formulation, the kind of wording, but if they were given the
10 sentencing that they requested, they can't appeal. How is that possible
12 I looked at everything that has been written. We compared it
13 with what the first instance panel wrote. What is it that the
14 Trial Chamber didn't see and the Prosecution sitting here before us did
15 see? Everything is there. They presented tables to our appeals brief.
16 This is what it says in the sentence. This is what it says in the
17 judgement. Let them make their own table as to what they say and what is
18 in the judgement. If they see any differences and discrepancies, fine,
19 we don't have a problem. I'm really concerned you know. At the
20 beginning of indictments for Kosovo, which, unfortunately, apply only to
21 Serbs, there were three politicians besides Sainovic who were accused.
22 Slobodan Milosevic who died in prison because he was indicted the way he
23 was, and he could not stand such a long trial. I remind you of
24 Judge May's words who wanted only Kosovo to be indicted. And the second
25 one is Milan Milutinovic who was acquitted. The third one was
1 Vlajko Stojilkovic who was the minister of the interior in Serbia. He
2 killed himself. And now the only -- or, rather, Slobodan Milosevic died
3 before he could be tried, presumed innocent. Milutinovic was acquitted.
4 It is especially interesting in the position of this Prosecution that
5 Milutinovic was acquitted and they do not appeal. Of all the responsible
6 politicians who were mentioned in the judgement, only Sainovic remains,
7 and now all of a sudden the Prosecutor wants a different sentence, life
8 in this case. They want that to be laid -- to be handed down on
10 You know, you have in the Bible a story about a goat that the
11 Jews took to the wolves to be eaten and that all the sins will go away
12 with that. I believe that Sainovic is in the same position, that he is
13 supposed to take the blame for everything that was not done or remains
14 unresolved. You see, Serbia has the police. Serbia has the government.
15 The government has the minister of the interior. It has the prime
16 minister. Serbia has the president of the republic. How come that one
17 of the vice-prime ministers in the government, as the Prosecutor alleges,
18 knows everything and the person in charge of the police hasn't a clue
19 about all that, or the president?
20 This is not fair. This is not humane. It is not fair to impute
21 to the only one person that remains everything that the Prosecution
22 failed to do successfully with other people.
23 That's why we hear today that the MUP commander -- instead of
24 imputing on Sainovic what Milutinovic was supposed to be charged with,
25 why are we doing that? Why do we have to blame Sainovic for the sins of
2 Vlajko Stojilkovic was in command only of the MUP, not only of
3 the state security. He was in command, but he was not so powerful to be
4 involved in war operations and do everything, whereas the president of
5 the Republic of Serbia was sitting clueless in a bunker next door to
6 Slobodan Milosevic. Slobodan Milosevic and his wife, and the other guy
7 and his wife, and above them was the Supreme Staff that was allegedly
8 planning operations unbeknownst to them.
9 I have learned that if somebody says something - I repeat this
10 once again - if somebody says something, if somebody promises something,
11 they're bound by their words. Here one man is taking the role of another
12 one. Milutinovic's exculpated together with the others and they are
13 replaced by Sainovic who is supposed to take their blame. One day
14 somebody will wonder how come that the Prosecutor kept a person in gaol
15 for seven years. They ask life sentence for him. He is acquitted and
16 they don't appeal.
17 When you look at the records of this trial, you will see that I
18 did not stop in my defence of Sainovic. Every day Prosecutor had
19 something to lay against -- against Sainovic but not against Milutinovic.
20 The proceedings was run in the way as if everybody knew what the final
21 outcome was going to be. It was in a way tepid. It was not carried out
23 If the Prosecutor - and let me repeat one more time - if the
24 Prosecutor in this case based on the evidence available to them and their
25 legal understanding of the sentencing, they will ask for a sentence based
1 on their assessment of the evidence available to them.
2 And now let me deal with the appeal itself. The Prosecutor does
3 not present any new arguments that would justify any aberrations from the
4 position that they had in the first instance case. The Prosecutor, when
5 asking for 20 years for Sainovic, bore in mind a number of facts for
6 which they deemed that they represent very important evidence on
7 Sainovic's guilt and sentence, and that those aggravated his position
8 with regard to the responsibility of the crimes that he was charged with.
9 This is what the Prosecution claim, that Sainovic obstructed the
10 application of the October agreement. He refused the entry of the
11 inspection into the barracks. He did not allow the KLA helicopter to
12 enter Kosovo, that he turned down the proposal that the forces in
13 Malisevo should be reduced, and that the KLA should be deployed in order
14 to -- and he also allowed -- he obstructed negotiations in Rambouillet.
15 All of these allegations in the judgement of the Trial Chamber which --
16 with which we are not satisfied have been rejected. None of these
17 allegations were accepted by the Trial Chamber in the first instance
18 proceedings. And now in a very paradoxical way, the Prosecutor is asking
19 for a higher sentence for Sainovic in a situation which is even more
20 favourable for Sainovic than at the time when the Prosecutor asked for a
21 sentence of 20-plus years for Sainovic.
22 The reasons of fairness impose the rejection of that request on
23 the part of the Prosecutor. In addition to that, the Prosecutor did not
24 present any serious reason why the sentence as has been pronounced is not
1 And let me now talk about the 700.000 Albanians whose lives were
2 ruined because they were not at home for a month. 120.000 Serbs who had
3 been chased away from Kosovo before that and they are still in Serbia,
4 and those who remain in Kosovo die every day. Has anybody been charged
5 with that? No. It is not very difficult to explain the situation of the
6 Albanians -- to the Albanians with indictments against the Serbs, but how
7 can we explain the situation to the Serbs who fled before NATO bombing
8 and there are 120.000 of us living in Serbia?
9 This is all of what I wanted to say and I apologise for being so
10 emotional at moments. Thank you very much.
11 JUDGE LIU: Thank you very much. I believe that we will hear the
12 reply this afternoon by the Prosecution on this very issue.
13 Now for the response by the counsel for Pavkovic.
14 MR. ACKERMAN: Thank you, Your Honours. I expect to be quite
15 brief this morning, take up very little time, partly because my
16 colleagues said some of the things that I intended to say.
17 The Prosecution is before you this morning asking you to save
18 them from themselves in a couple of instances, that they made prior
19 decisions and now they've decided they don't like those prior decisions
20 they made so they want you to let them change those decisions. It
21 reminds me of when I wanted some more time to argue my client's case here
22 and you told me, well, you made that prior decision that you didn't want
23 that time or you would have let us know earlier. And so, you know, I'm
24 in the same position they are, and what I got, they should get too, it
25 seems to me.
1 The first one of those, of course, is when they deliberately
2 decided, in the face of Judge Bonomy's almost pleading with them, not to
3 amend paragraph 76 of the indictment to include the allegations in
4 paragraph 72, they made that decision, and now after the effect of that,
5 they want you to let them reverse that and you consider it as if they had
6 amended the indictment. You shouldn't do that. And we argue, of course,
7 that there was a waiver and I think it's clearly a waiver.
8 The ground that I want to talk about now is that from ground 4
9 dealing with the sexual assaults which I talked with you at some length
10 about in answer to the Court's questions, and so I will rely primarily
11 what I said then and what we say in our brief. However, I really must
12 comment on what we heard this morning.
13 We need to understand that the prerequisite to the sexual assault
14 issues that are the subject of ground 4 is that there must have been
15 proof of a JCE I beyond reasonable doubt. We say there was not, that
16 even though a JCE can be shown by circumstantial evidence, it's not
17 sufficient that it is a reasonable conclusion available from that
18 evidence but that it is the only reasonable conclusion available from the
19 evidence. And we think it was not. And there's a lot of evidence to
20 show that it was not. The evidence of -- that I mentioned the other day
21 of a number of refugees that were at the border trying to cross and the
22 VJ forces said, No, you go back to your homes. We'll help you, we'll
23 feed you. They did.
24 The chaos of war provides an opportunity for the criminally
25 inclined who might be disguised as military personnel to engage in all
1 kinds of criminal acts. It's essential that the evidence identify the
2 perpetrators of these crimes that were talked about this morning as
3 persons over whom the accused have control. The Prosecution could not
4 identify the perpetrators of these rapes. We don't know who they were.
5 We don't know if they were ever identified and punished, or if they're
6 alive or walking this earth somewhere free. We just don't know. The
7 Prosecutor needs to make that identification before it can ask that
8 General Pavkovic be held responsible for what those persons did. They
9 must prove that not only were they under his control but that he did not
10 make sufficient efforts to prevent, and if not prevent it did not make
11 sufficient efforts to see that they were identified and punished.
12 Commanders in any war, no matter how hard they try, cannot prevent the
13 commission of crimes. They just happen. They must try and when they
14 fail, these -- then sufficient efforts must be made to punish.
15 I want to go very briefly into the sentencing issue. Clearly
16 there were serious crimes committed in Kosovo in 1999, but it is not the
17 number and the character of those crimes that is important to the issue
18 of sentencing but the identity of the perpetrators and their connection
19 to General Pavkovic. When the OTP was not able to identify perpetrators
20 in the crimes, they simply referred to them as VJ and MUP forces which is
21 not any kind of an identification at all. What they're saying when they
22 say "VJ and MUP forces," is that we can't tell you whether these people
23 were with the VJ or with the MUP. We don't know who they were, so we'll
24 just call them forces of FRY and Serbia. We just don't know who they
25 were. And that's endemic in this case, Your Honours. You look at all
1 the crime base in this case. There's no firm identification of the
2 people who were committing the crimes that were being committed.
3 The second time that the Prosecution has asked you to save them
4 from themselves is when this morning, after having gotten what they asked
5 for sentence-wise, they're now asking you, well, we're sorry, we didn't
6 like what we got from what we asked last time. Let's try again. If you
7 look at the transcript, 26947, in closing arguments in the case, you can
8 see Prosecutor Hannis saying, "We'd like a sentence of at least
9 20 years." Well, they got more than that. They got 22 for my guy. And
10 now they're saying, no, that wasn't enough, and Mr. Hannis was wrong, and
11 please save us from ourselves. A life sentence is not a reasonable
13 I think sentencing should not be an issue due to the flawed
14 character of this judgement. It is so factually flawed that sentencing
15 shouldn't even arise as a question. It should be remembered that
16 Pavkovic provided documents to this Tribunal including the minutes of the
17 Joint Command meetings. He had nothing to hide. He gave an interview to
18 the OTP before he was indicted. He co-operated in the investigation for
19 which he received no credit in the judgement to mitigate that, and you'll
20 see that at paragraph 364 of our main brief.
21 That's all I have to tell you this morning, Your Honours. I
22 appreciate your attention, and I think our brief filed in response to the
23 Prosecutor's main brief covers everything else that's important. Thank
24 you very much.
25 JUDGE LIU: Thank you. I believe that concludes your response.
1 Thank you very much, especially for your briefness.
2 I think it's time for us to have a lunch break. We will resume
3 at 1.30 this afternoon, at 1.30 this afternoon.
4 --- Luncheon recess taken at 11.51 a.m.
5 --- On resuming at 1.31 p.m.
6 JUDGE LIU: Good afternoon. We will continue the response from
7 the appellants. Counsel for Mr. Lazarevic.
8 MR. BAKRAC: [Interpretation] Good afternoon, Your Honours. I
9 will try to provide answers or to respond to some of the submissions that
10 my learned friends indicated in their appeal which concern
11 General Lazarevic, those that they mentioned in their brief and those
12 that they mentioned in their oral submissions today.
13 Our Defence appealed or challenged the first ground of appeal of
14 the Prosecution by maintaining that the Prosecution is wrong in claiming
15 that the Trial Chamber erred in finding that -- in acquitting Ojdanic and
16 Lazarevic of aiding and abetting murder. Our Defence joins the
17 submissions made by my learned friend Mr. Petrovic, who spoke earlier
18 today about the failure on the part of the Prosecution to relate all the
19 material aspects relating to this -- to these acts in the indictment. I
20 would here like to refer the Appeals Chamber to the other reasons we
21 provided in our reply to the appeal brief which can be found at
22 paragraphs 5 through 16 of our reply to the Prosecution brief.
23 I would now like to address the second ground of appeal of the
24 Prosecution, which is the one that they addressed orally earlier today
25 where they presented their views and arguments supporting the position
1 that General Lazarevic should have been convicted of aiding and abetting
2 in the crime of murder.
3 In our view, the Trial Chamber did not err in acquitting
4 General Lazarevic of aiding and abetting murder. The Prosecutor spoke of
5 the specific direction standard again today, which is an issue that was
6 discussed the day before yesterday when we were presenting our appeal and
7 the Prosecution were giving their reply. Should you apply a reasonable
8 standard of specific direction, in that case it would be quite clear and
9 unequivocally so from the totality of evidence that General Lazarevic
10 cannot be responsible for aiding and abetting murder.
11 Although I am fully convinced that it is quite justified and
12 legitimate to apply the specific directions standard to
13 General Lazarevic, even if we were to disregard that principle, still
14 there are ample reasons to acquit General Lazarevic of this crime. In
15 other words, in keeping with the Trial Chamber's finding acquitting him
16 of that responsibility.
17 We heard submissions today that for aiding and abetting murder,
18 the sufficient standard would have been that General Lazarevic was aware
19 of the probability or the likelihood that murders would occur. I believe
20 that this is an impermissibly broad interpretation of the standard,
21 because in that case any participant in a war could automatically be
22 thought to have the mens rea that murders are likely to happen.
23 In any war situation, improper conduct may occur, including
24 murder. That is precisely why preventative orders were issued by
25 General Lazarevic, and this is the very purpose of the criminal reports
1 that were filed against the perpetrators of crimes before the relevant
2 judiciary bodies.
3 In our view, the standard there was reason that he knew which
4 could be applied under Article 3 [as interpreted] of the Statute, whereas
5 when we speak of individual criminal responsibility under Article 7(1),
6 there, at the very least, the accused must be aware of the fact that his
7 action or omission may assist the perpetrators in the commission of
8 crimes. The Prosecution did not succeed in proving that this standard
9 was met either.
10 I would like to now address the specific locations that my
11 learned friend from the Prosecution spoke of.
12 Your Honours, my colleague tells me that we have Article 3 of the
13 Statute as recorded in the transcript whereas I referred to Article 7(3),
14 and I'm referring to page 63, line 7.
15 Your Honours, with your leave I'd like to briefly discuss the
16 locations mentioned by my learned friend which were not found beyond a
17 reasonable doubt, absolutely not, as places where General Lazarevic aided
18 and abetted murder. The Trial Chamber quite rightly found that none of
19 the evidence adduced proved that General Lazarevic was aware that the MUP
20 or VJ forces were going into the specific crime sites in order to commit
21 killings. Specifically, my learned friend mentioned Korenica and Meja in
22 the Djakovica municipality. The evidence shows that the VJ did not
23 participate in the incidents in and around Korenica and Meja on the
24 27th of April, 1999, in the municipality of Djakovica, and the case
25 presented by the Prosecution was merely speculation, because there was no
1 evidence to support it. The Defence maintains that in that area there
2 was a large presence of the KLA in the relevant period when the event
3 happened, and this is what the combat report of the 125th Brigade of the
4 25th of April, 1999, attests to. And I refer you to P2023. We also
5 heard witness Nik Peraj, a member of the Army of Yugoslavia, who in no
6 uncertain terms said that in the Reka Valley, where this action was
7 carried out in Meja and Korenica, there was a strong presence of the
8 137th Brigade of the KLA. And I refer you to P2252, paragraph 105.
9 The report of the 125th Brigade was P2023.
10 Prosecution witness Bislim Zyrapi, the Chief of Staff of the KLA,
11 said that the KLA used heavy artillery from the territory of Albania in
12 order to provide fire support to its units in the Reka Valley starting
13 from the 9th of April, 1999. Therefore, the speculations advanced by the
14 Prosecution were not true, that there was an action carried out with the
15 intent of driving out women -- civilians, women, children, and persons in
16 wheelchairs. There is ample evidence which, at least alternatively, may
17 lead to a reasonable inference that the action carried out in the
18 Reka Valley had the aim of resisting a strong activity on the part of the
19 KLA including that of its heavy artillery from the territory of Albania.
20 And I refer you here to transcript pages 6238 to 6239.
21 There is ample evidence to show that in Korenica and Meja, that
22 is to say, the Djakovica municipality, there was a strong KLA presence
23 and that the action carried out in Korenica and Meja was a military
24 action directed against the KLA. Another important issue is that in the
25 case file there is no evidence to show that General Lazarevic was
1 informed that there were killings of civilians occurring in that action.
2 There is no evidence to support that. There is also no -- there is also
3 evidence to show that in the area of Djakovica there was a forward
4 command post where there was Colonel Zivkovic who assigned tasks to the
5 125th Brigade to hold a stretch of the front line without advancing
6 further. In other words, there is no evidence that General Lazarevic
7 issued any sort of order in respect of this action.
8 Let me move on to a different location now. My time is running
9 out quickly. This is Dubrava/Lisnaja. Your Honours, there you will also
10 find ample evidence which fully and unequivocally justify the position of
11 the Trial Chamber that General Lazarevic was not responsible for this
12 incident of killing. There are killings of two Kosovo Albanians in
13 Dubrava and Kacanik municipality on the 25th of May, and there is ample
14 evidence to show that this was not committed by the VJ. Secondly, there
15 is no evidence to show that General Lazarevic had any knowledge of this
17 We have heard witness Krsman Jelic testify. He was the commander
18 of the unit who was present in that area. He was the commander of the
19 243rd Mechanised Brigade. According to his testimony, there was a strong
20 presence of the KLA in the area. The inhabitants of the village left
21 their village of their own free will and left for Macedonia.
22 General Krsman Jelic made markings on the map where he clearly showed
23 what the positions of the army were and where the fighting against the
24 KLA took place. And I refer you here to Exhibit P370, pages of the
25 transcript 19146. The evidence will indicate clearly that there was
1 fighting going on between the KLA and the VJ in the area. You will also
2 see that none of the reports and documents put General Lazarevic on
3 notice of the fact that there was anything improper going on in the area,
4 especially not the killing of the civilians.
5 Your Honours, the Prosecutor said when addressing the standard,
6 which as we already submitted was very low, General Lazarevic had to have
7 known based on the events from 1998 that these killings might occur in
8 1999. I wish to draw your attention to the documentation that I
9 mentioned the day before yesterday, which was on quite a different set of
10 events and in respect of the fact that, in 1998, the situation on the
11 ground and the situation with regard to General Lazarevic's position was
12 completely different, and this must be taken into consideration with the
13 other factors that we mentioned.
14 In 1998, General Lazarevic was the Chief of Staff of the
15 Pristina Corps and was present at the forward command post in Djakovica.
16 He was securing the state border facing Albania from where there was a
17 high inflow of weapons and personnel on an almost daily basis.
18 General Lazarevic was erroneously described as a person who was
19 mentioned -- who was present when General Samardzic, who was the corps
20 commander then, or, rather, the 3rd Army commander, had a meeting with
21 the Pristina Corps commander. This is Exhibit Number 4D97, which clearly
22 shows that General Lazarevic was not present in that meeting. When the
23 Chief of Staff was mentioned, what was meant was the 3rd Army Chief of
24 Staff, because he was also the signatory. Please look closely at 4D97
25 and you will see this discernible error that General Lazarevic indeed was
1 not present at the meeting which discussed torching.
2 Also, with regard to 1999, the Prosecution cites the example
3 where General Lazarevic, considering that he was in Pristina at the time,
4 should have known that in addition to deportations there were also
5 killings of Albanian civilians. This claim by the Prosecution is also a
6 speculation, an example of speculation that does not rely on any evidence
7 at all.
8 From the case file you will see that the command post of the
9 Pristina Corps from the beginning of the bombing was never in the town of
10 Pristina. The command post was several kilometres outside of Pristina at
11 a place called Kisnica, and there are numerous exhibits to prove this.
12 Defence witness Filipovic also testified in great detail to the fact that
13 there were no units, no troops of the VJ in Pristina itself.
14 Your Honours, this makes the claim from the Prosecution appeal
15 that General Lazarevic should have had such knowledge because he was in
16 Pristina for a meeting on 19 April 1999 completely unreasonable, mere
17 speculation. You will see if you look at this meeting that it was late
18 at night and that General Lazarevic came to Pristina for that meeting at
19 1.00 a.m. from his command post in Kisnica for one hour only. And let me
20 recall that by that time, 600.000 out of the total of 700.000 Albanians
21 had already been deported. So it is absurd to claim that based on that
22 one-hour meeting in Pristina, General Lazarevic had reason to know that
23 in addition to deportations of civilian population there were also
25 Your Honours, I will now let my colleague Mr. Cepic address the
1 Prosecution grounds of appeal 5 and 6 and present our arguments.
2 MR. CEPIC: [Interpretation] Thank you for this opportunity,
3 Your Honour. As my colleague Mr. Bakrac said, I will address the
4 Prosecution grounds of appeal 5 and 6 and attempt to respond to the
5 submissions of our learned friend Mr. Kremer.
6 We have already addressed the issue of deportations from
7 Urosevac, Zabare, and Prizren, Dusanovo. I will not come back to that
8 except to say that these allegations do not correspond to what the
9 Prosecution say, and the Trial Chamber was correct in finding that
10 General Lazarevic had nothing to do with the incidents in that area, also
11 a plethora of evidence has been adduced, diaries of various brigades and
12 other units active in that area. We have pointed out to inconsistencies
13 in witness testimonies considering Staro -- Sojevo, Misojevo [phoen] and
14 other places in that municipality, including Zabarevo [phoen].
15 Speaking of deportations and forced transfers in Zabrezje, I
16 would like to recall that witnesses themselves confirmed that in this
17 place, there was a military hospital of the KLA. [In English] And that
18 was confirmed by the Prosecutor witness Mahmut Halimi, transcript
19 page 4447, 4448, which clearly demonstrate to us that it was a strong --
20 stronghold of KLA in that village. That means that we could use the
21 pattern which is clearly described by the Prosecutor witness, credible
22 Prosecutor witness, Chief of Staff Bislim Zyrapi who said that:
23 "It was normal for us to order the movement of population but
24 also of the KLA."
25 Also, I would like to add something more regarding to that issue.
1 My learned friend Mr. Kremer today on the page of transcript 37 explained
2 alleged crimes on the space of Orahovac municipality, quoted places
3 Celine and Pirane on 25th of March, 1999. I have to again quote Chief of
4 Staff of KLA, page of transcript 5992:
5 "... in the area starting from Pirane and up to Gjakova junction
6 and Bellacerkva, the attacks were launched early in the morning on
7 25th of March, there was combat activity.
8 "I want to mention this: Before the artillery attack started --
9 correction. After the artillery attack started, we wanted the population
10 in this area to move out for security reasons. The KLA forces, together
11 with the population began to withdraw."
12 So that means with this piece of evidence in corroboration with
13 other direct evidence that on that place at that time was very strong
14 combat activities between VJ and MUP from one side and KLA from another
16 I would also like to draw your attention that on other areas out
17 of alleged crime base, there is no evidence, no allegation about alleged
18 deportation or forcible transfer. For example, nearest to village
19 Nogavac, which is just couple hundred metres from Celine, was attacked by
20 NATO bomb on 2nd of April, 1999, and Trial Chamber found that there is no
21 crimes regarding to that location. That is the same area, almost the
22 same period of time, but completely different reason for the movement of
24 Prosecutor in his appeal brief also marked that VJ forces
25 allegedly committed crimes in suburb of Prizren, Dusanovo. One of
1 Prosecutor witnesses testified that on 28th of March, 1999, there was
2 about 50 tanks and military units of VJ. During the morning, my learned
3 friend Mr. Kremer explained that VJ unit 449th Brigade was in the area of
4 Orahovac. That was the only combat unit in that area. So it is not
5 possible to be at two places at the same time.
6 Also report from that brigade from 30th of March, P195, clearly
7 describes positions and movements of VJ units.
8 I would like to present you piece of evidence which is taken just
9 couple streets from Dusanovo area, in Prizren town, in April 1999.
10 I kindly ask my assistant to play Exhibit Number 5D1374. With
11 sound, please.
12 [Video-clip played]
13 MR. CEPIC: The entire video clip is about four minutes, so I
14 kindly ask my assistant just to play couple inserts from it. From this
15 video-clip you can see the distortion of buildings. You can see
16 civilians, Albanian civilians, from their clothing it is very simple to
17 [indiscernible] that. You can see VJ members assisting civilians. Also
18 see the units, civil protection units.
19 So thank you very much.
20 So the reasonable question is: Who can remain on that location
21 after this distortion [sic]? Even before, even later.
22 Request of Prosecutor for the sentence regarding to
23 General Lazarevic is completely unfounded. That request is not founded
24 with any clear explanation. The sentence of 15 years' imprisonment for
25 aiding and abetting is too high. The Defence disposition has established
1 that in this case, the Trial Chamber didn't take into account all
2 relevant pieces of evidence, especially the facts that General Lazarevic
3 was the first one who gave the interview as accused, that
4 General Lazarevic was the only one who testified before the
5 Trial Chamber, even before any of Defence witnesses, and also many of
6 evidence which clearly shows intention and activities of
7 General Lazarevic to provide humanitarian aid to civilians in difficult
8 wartime period.
9 We're just explaining that to illustrate situation, that the
10 request of Prosecutor is completely unfounded.
11 For all those reasons, we kindly request from this honourable
12 Appeals Chamber to dismiss Prosecutor appeal.
13 And I kindly ask for one correction in transcript page 70,
14 line 16. It has to be "destruction" instead of "distortion."
15 Thank you very much for your attention, Your Honours.
16 JUDGE LIU: Thank you. I think there's one question I would like
17 to ask. I would like to seek your clarification on your position that
18 that is to your understanding of the judgement, what kind of legal
19 criteria the Trial Chamber applied concerning of the aiding and abetting?
20 I mean, the Trial Chamber applied the specific direction criteria or not?
21 MR. BAKRAC: [Interpretation] Your Honours, with all due respect,
22 we believe that the Trial Chamber did not apply the criterion of specific
23 direction and that is why they indeed convicted General Lazarevic of
24 aiding and abetting, deportation and forcible transfer. We believe that
25 even applying the inappropriate milder standard, the criteria for
1 mens rea would not have been met and General Lazarevic should not be
3 What we were trying to say that by applying the standard of
4 specific direction, the inadequacy of the conviction of General Lazarevic
5 for this would be even more obvious.
6 JUDGE LIU: Thank you very much.
7 MR. BAKRAC: [Interpretation] Thank you, Your Honour.
8 JUDGE LIU: I believe that later on I will also seek the
9 positions or understandings of the Prosecution in this matter.
10 I think that is all the questions, so may we hear the counsel for
11 Mr. Lukic's reply.
12 MR. IVETIC: Your Honours, I thank you for the opportunity to
13 address you in relation to the Prosecution's appeal on behalf of
14 Mr. Lukic. At the outset I'd like to tell you that if there's anything
15 that we have mentioned in our response brief which we do not present to
16 you here today orally, that does not mean that we are withdrawing any of
17 the arguments that we wrote in there. We are simply trying to highlight
18 some points within the time period that Your Honours have granted us.
19 I would like to start by noting that the Prosecution appeal
20 essentially in every ground is merely seeking different ways to seek and
21 obtain an increase of the sentence which was initially requested by the
22 Prosecution at trial and which was imposed against Mr. Lukic by the
23 Trial Chamber.
24 As you heard from our Defence yesterday, the sentencing of our
25 client to a 22-year sentence is manifestly unjust and in error for
1 multiple reasons, the foremost one being an inappropriate treatment of
2 the evidence of mitigation. I will not repeat those arguments today, but
3 I ask that you please bear them in mind when considering the Prosecution
5 I must also remark respectfully that this Prosecution appeal
6 violates fundamental issues of fairness and the most basic appellate
7 principles. Your Honours, a party is not permitted to appeal from its
8 own mistake. The Prosecution received the sentence within the range that
9 it asked for and should be barred by the doctrine of estoppel from
10 seeking a higher sentence on appeal. Surely in seeking a sentence of at
11 least 20 years at the conclusion of their case the Prosecution at that
12 time had in mind all the appropriate standards of proof as well as the
13 entirety of their evidence, and thus, the sentence that they sought at
14 that time was what they believed was appropriate under the standards of
15 proof and the evidence. Thus, Your Honours, I submit irrespective of
16 whether the Trial Chamber made any errors or not in relation to the
17 standards of proof for JCE III, irrespective of the other grounds of
18 appeal that the Prosecution has raised in this appeal, the Prosecution
19 cannot claim that those errors call for an increase in sentence since
20 they, the Prosecution, were aware of the correct standards, as they say,
21 were aware of their evidence and still asked for a sentence of no less
22 than 20 years and got a sentence of no less than 20 years. In fact,
23 more, 22.
24 The Prosecution has failed to cite to any legal authority that
25 permits them after having prevailed at trial to now seek a second bite of
1 the apple and appeal against their own error, the Prosecution's error,
2 not any error by the Chamber in sentencing. Such a position turns the
3 appellate process on its head.
4 The Prosecution's request that sentencing be based on a simple
5 quantitative calculation would amount to retribution without restraint
6 and would be contrary to the sentencing principles of the Tribunal. It
7 should be recalled that an integral part of the principle of retribution
8 is restraint which requires a fair and balanced approach based upon the
9 culpability of the individual defendant. The Appeals Chamber has stated
10 clearly that retribution must not be accorded undue prominence in
11 sentencing. The Aleksovski appeal judgement at paragraph 185 stands for
12 that proposition.
13 What is clear in the jurisprudence is that concern for the
14 principles of retribution and deterrence cannot justify a departure from
15 the fundamental principles that an individual should be punished solely
16 on the basis of his wrongdoing. This is paragraph 64 of the Nikolic
17 appeal judgement.
18 Thus, in applying the sentencing principles, the limits of
19 sentences are necessarily set by the prior assessment of the gravity of
20 the offence properly taking into account the precise conduct of the
21 accused. The Prosecution position wishes to focus only on the gravity of
22 the offence for which the trial judgement found Lukic liable, and we say
23 that the trial judgement is in error finding him liable, but the
24 Prosecution wishes only to focus on that without applying the second half
25 of the test, which is an analysis of the integral role or lack thereof of
1 the accused.
2 In this regard, it ought to be stressed that under the prior case
3 law of the Tribunal, gradations of fault within the JCE doctrine are
4 possible and may be reflected in the sentences given. This was a finding
5 of the Krajisnik trial judgement at paragraph 886.
6 I implore the members of this panel and this Chamber to use their
7 common sense and legal training to reject the Prosecution's calls for a
8 higher sentence irrespective of the outcome of the remainder of their
10 Now I wish to turn to some of the other submissions of my learned
11 colleagues from the Prosecution.
12 Today we heard submissions about the crimes of sexual assaults
13 and the claim of the Prosecution that they were foreseeable under the JCE
14 possibility standard since armed security forces and soldiers were out
15 and about during the period of NATO bombings.
16 As the Appeals Chamber in Karadzic has stated, it is worth noting
17 that the term "possibility standard" is not satisfied by implausibly
18 remote scenarios plotted on a spectrum of likelihood. The JCE III mens
19 rea standard does not require an understanding that a deviatory crime
20 would probably be committed. It does, however, require that the
21 possibility a crime could be committed is sufficiently substantial as to
22 be foreseeable to an accused. That's paragraph 18 of the Karadzic
23 decision that is the basis of the Prosecution's appeal.
24 Thus, Your Honours, the appropriate analysis focuses on what was
25 foreseeable and substantially known to the accused under the set of facts
1 he operated under at the time. So we need to look at the set of facts,
2 not the Prosecution's characterization of them.
3 It is important to note that even though the Prosecution is no
4 longer claiming the evidence that they cited shows actual notice as to
5 Mr. Lukic, you should still look at the same because that evidence the
6 Prosecution has cited relates to separate isolated opportunistic acts and
7 not what the Prosecution is now claiming. Under such a factual backdrop,
8 the possibility such crimes were foreseeable is not sufficiently
9 substantial so as to permit a conviction of Lukic.
10 By way of example, the Prosecution relies upon evidence of
11 individual crimes of sexual assault that were not shown to have occurred
12 during any joint VJ-MUP actions but, rather, were individual instances of
13 crime that were investigated and punished by the proper law enforcement
14 authorities, be they police or military police.
15 I would urge Your Honours to look at appendix 1 of the OTP appeal
16 brief and check all those instances.
17 I ask the panel to consider when individual opportunistic sexual
18 assaults occur during a time of armed conflict and when perpetrators are
19 arrested and processed by either the military police or the civilian
20 police of that state, what more can a state official, in this case
21 Mr. Lukic, have done? I must take the time to draw your attention again
22 to the lack of any disciplinary authority Lukic had in his position as
23 head of the MUP staff. Yesterday, the Prosecution suggested he could
24 indirectly cause SUP chiefs to institute disciplinary proceedings. I
25 want to present you with a citation to the evidence of what in fact a
1 former SUP chief and an OTP insider witness, Mr. Cvetic, actually said at
2 transcript page 8152 through 8153. If you look there you will see that
3 he says SUPs could only proceed with disciplinary actions upon consent
4 from the police administration in Belgrade. The MUP staff had no say in
5 this process.
6 So, Your Honours, Lukic had no disciplinary authority over
7 disciplinary proceedings of MUP members. In any event, he had no actual
8 notice of sexual assaults let alone any committed by MUP members. Under
9 what basis in law, under what basis in equity should he be found liable
10 and punished for these same crimes?
11 I ask Your Honours: Do we really want to establish a strict
12 liability standard that would hold anyone in a state official position
13 culpable of rape or sexual assaults committed by unknown others either
14 without any actual forewarning that such things could occur simply
15 because there is a state of war underway and the chaos of war is afoot,
16 particularly when it is a war that they neither asked for nor started?
17 We submit this is too remote. We submit that the Prosecution is asking
18 for the standard to be diluted beyond that which has actually been
19 established by the jurisprudence. And, Your Honours, we would say that
20 the presumption of guilt is not permitted in criminal proceedings. We
21 ask you to repel this part of the Prosecution appeal.
22 The Prosecution at paragraph 53 of their reply and in the
23 paragraphs contained in ground 4 of their appeal state that Lukic knew of
24 crimes in 1998 and crimes and expulsion of Kosovo Albanians in 1999 due
25 to his leadership role in the MUP. Arising out of the Prosecution's
1 leadership argument is the presumption that Lukic had detailed
2 information about activities and crimes so as to provide substantial
3 knowledge forecasting the possibility of sexual assaults. This is at
4 paragraph 68 of the OTP's appeal brief.
5 We have analysed in our appeal brief the lack of reporting as to
6 the anti-terrorist actions, the lack of information available after NATO
7 began its air-strikes, and other factors relating to the ability or
8 inability of Lukic to have information from the field. For instance,
9 that could be seen in our appeal paragraphs 641 through 683. They are
10 instructive, I think, for this analysis as well.
11 The Prosecution in this ground attempts to rely on information
12 contained in meetings of the so-called Joint Command and to draw improper
13 conclusions there from to illustrate Lukic's reported knowledge of
14 crimes. However, when you look at what they cite, for instance, book 3,
15 paragraphs 1080 and 1081 of the judgement, what is being discussed at
16 those meetings were actually unverified information from various sources
17 of rumours of a crime that had not yet been legally confirmed to be a
18 crime, that is the respective Prosecutor's office with jurisdiction over
19 the same had not conducted investigations, but a review of the record
20 shows that the authorities diligently followed up and investigated even
21 unverified information in accord with the law. I would direct you to
22 P948, page 159; 6D613; 6D1631, paragraphs 27 through 31, 60 and 93.
23 The misapprehension of the evidence on the part of the
24 Prosecution appeal continues at paragraph 70, where it is again asserted
25 that Lukic was well informed of crimes at meetings where these crimes
1 were discussed. However, a look at these paragraphs from the judgement
2 and the underlying evidence also shows no crimes being discussed.
3 Indeed, paragraph 1079 and 1081 of the judgement that are cited in this
4 paragraph have no mention of crimes.
5 The reference to paragraphs dealing with Sainovic at book 3, 442
6 and 463, only demonstrate discussion of the, quote/unquote, humanitarian
7 catastrophe caused by NATO's bombings. The same type of analysis sheds
8 light on the Prosecution appeal paragraph 72 as the cited sections do
9 not, in fact, relate to any confirmed crimes being discussed. The only
10 things being discussed: Pre-emptive discipline of forces, avoiding
11 breaches of the cease-fire, and the refugee crisis.
12 Another item that the Prosecution cites is P1468, and in
13 particular, they refer to a meeting - that is at page 37 of the same -
14 and I believe this also demonstrates a misapprehension of the evidence by
15 the Prosecution. Looking specifically at this entry it states in
16 pertinent part that "Mr. Gajo" whom the evidence shows to be David Gajic,
17 the senior state security coordinator for Kosovo, and I would turn to
18 Djakovic, the author of this notebook, testifying as to that fact at
19 T 26370, and this is the entry that the Prosecution in the judgement
20 would like to highlight -- or, excuse me, the Prosecution appeal would
21 like to highlight.
22 "An investigation of six persons was initiated. Three in
23 Malisevo. One of them is giving a statement that he committed murder and
24 rape and three new persons."
25 To properly understand this reference, it must be understood,
1 Your Honours, that Malisevo was KLA-controlled territory in 1998 and,
2 indeed, was declared the capital of KLA-controlled territory. We have
3 that from 3D194 and also the testimony of Bislim Zyrapi of the KLA at
4 6852 of the transcript.
5 Gajic, as the RDB coordinator was tasked with giving updates on
6 KLA activities as this was part of his mandate. Djakovic testified as to
7 that at transcript page 26430. Hence, Your Honours, in this concrete
8 case that the Prosecution wants to show you that Lukic had knowledge of
9 crimes, the crimes in question from 1998 are actually relating to the KLA
10 and KLA perpetrators that are taken into custody by state security.
11 More striking examples can be drawn from paragraph 72 and the
12 sections of the trial judgement that the Prosecution cites in support of
13 their appeal. I will just touch on a few of them. They cite to
14 paragraph 1082 of book 3. This is the cited testimony of Shaun Byrnes,
15 which actually relates to a fierce battle between Serb forces and the KLA
16 in Kijevo and makes no allegation of crimes. In fact, when questioned
17 about the cause of the burning houses, Byrnes confirmed, we saw the quote
18 yesterday, quote:
19 "I did not see a single PJP officer pull a trigger. I did not
20 see a PJP officer light a house on fire by whatever means."
21 The missing factor that the Prosecution ignores is there was a
22 battle between the KLA and state forces.
23 Book 3, paragraph 1083, cited by the Prosecution, also dealing
24 with Shaun Byrnes. The incidents in question must be taken in context
25 with the other evidence, inclusive of the fact that this incident -- one
1 incidence complained of in this section was a humanitarian operation
2 where buses were organised to take people back to their home villages.
3 Is liability being now asserted because people were forced back to their
4 homes? Concerning Byrnes' testimony, the evidence, indeed the
5 Trial Chamber concluding at book 1, 881, that this area during this time,
6 quote, "was a site of significant combat operations." Thus,
7 Your Honours, terrorists not civilians would have been the target of any
8 actions. And these activities would have to be considered to reach a
9 sound conclusion and a sound judgement.
10 Book 3, paragraph 1120, finding that Lukic was aware that crimes
11 were committed in 1998 by various forces including the PJP and the SAJ
12 which were under his control while deployed in Kosovo. The Prosecution
13 is relying upon this and the underlying evidence for its arguments on
14 appeal. The Chamber referred to the following evidence: The statement
15 of Adamovic, which is 6D1613; the minutes of the MUP staff meeting held
16 on 4 April 1999, which is P1989; and a memorandum by the MUP staff, which
17 is 6D874.
18 Although this finding related to 1998, the Chamber referenced
19 evidence dating from 1999 that does not substantiate the conclusions made
20 at all regards to 1998. The paragraphs cited from Adamovic's statement,
21 and indeed the entire statement, make no mention of crimes by the MUP or
22 Serb forces committed in 1998. Moreover, the Chamber itself at book 3,
23 paragraph 1005, noted as to 6D874 that it was signed by Dragan Ilic
24 rather than by Sreten Lukic.
25 The Chamber's position is untenable and thus the Prosecution's
1 appeal is untenable as it -- as it would require Lukic to have knowledge
2 of items that he did not author and for which it has not been shown that
3 he saw them or had knowledge of the same.
4 There were no orders, no evidence of orders, no indicia of any
5 orders issued by Lukic as to anti-terrorist actions that were adduced at
6 trial. In regards to the memorandum of the MUP staff from 4 April 1999,
7 neither this document nor Lukic's words recorded therein mention or imply
8 any crimes committed by state forces in 1998. The factual backdrop
9 simply does not support the Prosecution's appeal as to foreseeability and
10 therefore that ground should also be repelled.
11 I want to just touch on the aggravating factors that the
12 Prosecution insists on pursuing for which it says a higher sentence is
13 warranted. Both in their brief at paragraph 181 and today in their oral
14 submissions they have claimed that Sreten Lukic was the de facto
15 commander of all the MUP in Kosovo. They consider him a crucial member
16 of the JCE based upon this alleged position as de facto commander, and I
17 understand the seventh ground of appeal as seeking to have this command
18 superior role viewed as an aggravating factor in sentencing.
19 They list four items that they believe show his de facto
20 commander role. The first is Lukic's role in disarming the Albanian
21 population, paragraph 183 of the appeal. I think we have in some detail
22 explained that yesterday and that shows how their argument is misplaced,
23 because Lukic's role was only in working with the international community
24 and with Serbian officials to keep track of voluntary surrenders of
25 weapons in accord with the law and seeking peace. This part of the
1 Prosecution appeal must therefore fail.
2 The second arm that they allege is Lukic's central role in
3 coordinating the exchange of info from the MUP HQ in Belgrade and the MUP
4 in Kosovo. That's paragraph 184 of their appeal.
5 As to this, we have already seen yesterday how the SUPs reported
6 directly to Belgrade and only in parallel to the staff. Further we
7 showed that you the chief of the police administration and commander of
8 all PJP, Obrad Stevanovic, who was a superior -- who was in a superior
9 position in the MUP to Lukic, was on the ground in Kosovo in 1999. Lukic
10 could not supplant Stevanovic and the judgement confirmed that he did not
11 supplant or change the hierarchy of the MUP upon his appointment as head
12 of staff.
13 The third tenet that the Prosecution holds for the de facto
14 commander role of Lukic is his participation in meetings. It's
15 paragraph 182 of their appeal.
16 As to participation in meetings, that too was discussed and I
17 believe rebutted in our submissions yesterday. And I believe the
18 third -- fourth is from paragraph 185 of their appeal, Lukic's direct
19 involvement in planning. We also discussed that yesterday and saw that
20 indeed the Trial Chamber found Lukic did not have a role in preparing the
21 global plan for the suppression of terrorism.
22 Also we would submit how can Lukic be de facto commander of the
23 MUP and deserve a higher sentence if the following is true under the
25 First, the ability to exercise effective control in the sense of
1 a material power to prevent or punish has been identified by the
2 Appeals Chamber to be a minimum requirement for the purposes of a command
3 superior responsibility. That is paragraph 59 of the Halilovic appeal
4 judgement. The same paragraph concludes as well whereas:
5 "... a police officer may be able to 'prevent and punish' crimes
6 under his jurisdiction ... this would not ... make him a superior ...
7 vis-a-vis any perpetrator within that jurisdiction."
8 Your Honours, it is clear that Lukic didn't have the ability to
9 prevent or punish in the sense of any command superior or leadership
10 role. Thus, it is clear that for the manner of responsibility the
11 Prosecution wishes to assert, it wrongfully assumes that if Lukic
12 reported on crime prevention efforts underway he had control over units
13 through a leadership role.
14 We talked of lack of disciplinary powers already yesterday and
15 today. I would only add that the evidence shows that Lukic could not
16 appoint or replace anyone in the MUP including members of his own staff.
17 6D1045, 6D1047, 6D1049, 6D1050, 6D1052, and even P1884, P1886, and P1885
18 demonstrate that proposition.
19 Lukic could not assign or promote anyone within the MUP. 6D1344
20 and 6D1348 verify that.
21 Further, Lukic could not decide on deployment of PJP units to
22 Kosovo. 6D271, 6D287, 6D291, and 6D1356, among other evidence,
23 demonstrate that.
24 From the foregoing, it is clear under the standard established in
25 Halilovic appeals judgement that irrespective of whether the Brdjanin or
1 Karadzic standard is used, there is no leadership role attributable to
2 Lukic that could form the basis of an aggravation of sentence or ability
3 for -- or liability for sexual assaults.
4 When the totality of the evidence is reviewed under the
5 appropriate standards, we see that Lukic contributed greatly to the
6 investigation of crimes, not to their perpetration. We ask you to repel
7 the Prosecution's appeal.
8 I just want to touch on something that the Prosecution counsel
9 raised today, their claim that persons were expelled from Pristina, Pec,
10 Djakovica, and other towns in Kosovo. Just like yesterday, they would
11 like to ignore the role of the KLA and ignore the role of NATO. And they
12 would like to ignore how these two actors beyond the control of Lukic had
13 an effect on the departure of civilians of all ethnicities in Kosovo.
14 I'd like to now move briefly into private session to discuss some
15 Rule 70 documents and their source.
16 JUDGE LIU: Yes, we'll go to the private session, please.
17 [Private session]
6 [Open session]
7 THE REGISTRAR: Your Honours, we're back in open session.
8 MR. IVETIC: Your Honours, 6D1637 is evidence from a Rule 70
9 provider that Serbs and Albanians in Pristina were facing hardships and
10 choosing to leave that city after and as a result of NATO commencing
11 daytime strikes in Pristina. Was Lukic guilty for NATO's actions?
12 6D1638 talks of the KLA General Staff reporting that its units are in
13 battle inside the towns of Pec and Djakovica and attempting to take over
14 control of those towns. 6D1636 confirms by the KLA that they have
15 entered the city centre of Pec and were battling for control of Pec.
16 6D1637 also talks of fierce fighting in Pec between the KLA and state
17 forces as well as the presence of a KLA force and fighting in the Reka
18 and Carragojs region. I ask you, Your Honours, is Lukic supposed to be
19 guilty for the actions of the KLA?
20 These documents and other evidence of record provide alternative
21 reasons why people left their homes and why they fled. Other evidence --
22 THE INTERPRETER: Please.
23 MR. IVETIC: Other evidence that I believe Your Honours need to
24 consider in relation to the Prosecution appeal. We ask you to consider a
25 totality of the evidence and the arguments that we have presented and ask
1 you to repel the Prosecution appeal in its entirety. And I thank you for
2 your time, and I apologise to the translators.
3 JUDGE LIU: Thank you very much.
4 Mr. Ackerman.
5 MR. ACKERMAN: Your Honour, I was wondering if I might have one
6 minute of my time back. I've been searching for a cite and I finally
7 found it. I just want to tell you what it is and where it is.
8 JUDGE LIU: Yes, please.
9 MR. ACKERMAN: I remembered this from a long time ago and I was
10 having trouble finding it. It's actually in the first Appeals Chamber
11 decision of this Tribunal, the Erdemovic sentencing appeal. It's on
12 page 14, and what the Appeals Chamber says there is:
13 "The appeal process of the International Tribunal is not designed
14 for the purpose of allowing parties to remedy their own failings or
15 oversights during trial or sentencing."
16 Thank you.
17 JUDGE LIU: Thank you very much.
18 I think it's time for a break. We will have 30 minutes' break
19 and we'll resume at quarter past 3.00.
20 --- Recess taken at 2.43 p.m.
21 --- On resuming at 3.15 p.m.
22 MR. PETROVIC: [Interpretation] Your Honours, with your leave, I
23 would like to inform the Appeals Chamber that my colleague did not feel
24 well and he had to leave the courtroom for the rest of the day so I will
25 be the only counsel representing Mr. Sainovic for the rest of today's
1 hearing. Thank you.
2 JUDGE LIU: Thank you very much. We all wish him a speedy
4 MR. PETROVIC: [Interpretation] Thank you, Your Honour.
5 JUDGE LIU: Now the Bench would like to hear the reply from the
7 MR. MILANINIA: Mr. President, Your Honours, may it please the
8 Court. To provide you a brief road map of our reply, first I plan on
9 addressing ground 2 of our appeal and, in the context of our reply,
10 address Judge Liu's question. After me, Ms. Jarvis will then proceed on
11 providing a reply regarding responses concerning grounds 3 and 4 of our
12 appeal. And then finally Mr. Kremer will conclude by addressing the
13 responses to ground 1 and 6 of our appeal but also address the question
14 that was asked of Ms. Jarvis concerning the role of the NATO bombings, as
15 well as the number of individuals who fled Kosovo.
16 Your Honours, to begin, first to address Judge Liu's question.
17 The Trial Chamber did not explicitly apply the specific direction test as
18 this was not a requirement before the Perisic appeals judgement as was
19 explained on Wednesday by Mr. Marcussen. Your Honours, I refer you to
20 transcript pages 439 to 461. However, even if you now take the view that
21 specific direction is a requirement, we submit that it was implicitly
22 established by the Trial Chamber in this case. As Mr. Marcussen detailed
23 before, General Lazarevic was a proximate aider and abettor. You can
24 find that at transcript pages 461 to 470. He was on the ground in Kosovo
25 when the crimes were being committed and he was the commander of the
1 forces involved in those crimes. His role, Your Honours, is similar to
2 that of Krstic, Brdjanin, and Simic, all of which the Perisic
3 Appeals Chamber found to be proximate at footnote 100 of paragraph 38.
4 And on Wednesday, we showed you that General Lazarevic
5 specifically contributed to operations which could never be understood as
6 legitimate warfare, in particular, Your Honours, with respect to the
7 Reka Valley operation. Therefore, on the facts of this case, it is
8 implicit that General Lazarevic's actions were specifically directed at
9 the crimes of deportation, forcible transfer, and murder as explained in
10 our submissions on Wednesday and earlier today.
11 Your Honours, as one final note on that question, I would like to
12 draw your attention to the fact that today the Prosecutor for the
13 Special Court of Sierra Leone has recently issued a briefing in that case
14 indicating all of the problems that we discussed concerning the Perisic
15 appeals judgement.
16 Second, Your Honours, General Lazarevic attempts to disclaim his
17 responsibility for these crimes by suggesting that he took steps to
18 combat murders involving the VJ. While we understand that there may be
19 certain circumstances where an accused can absolve themselves of aiding
20 and abetting liability by taking steps to combat crimes, this is not one
21 of those cases. The Prosecution notes that the Trial Chamber considered
22 these arguments at Volume III, paragraph 870, and found that General
23 Lazarevic's responses were, and I quote, "manifestly inadequate in light
24 of the scale of the offences occurring in Kosovo."
25 The Chamber also found that General Lazarevic was aware of these
1 inadequacies, noting at Volume III, paragraph 925, that, and I quote
3 "General Lazarevic knew that his failure to take adequate
4 measures to secure the proper investigation of serious crimes committed
5 by the VJ enabled the forces to continue their campaign of terror,
6 violence, and displacement."
7 Your Honours, these are the two issues I wish to discuss
8 concerning ground 2, and unless you have any further questions on this
9 issue, I would now like to turn the podium over to Ms. Jarvis. Thank
10 you. Thank you.
11 MS. JARVIS: Your Honours, I'll also aim to be quite brief in
12 reply. I have just three points that I wanted to mention in relation to
13 the issue of the sexual assaults as persecution in this case.
14 First of all, both counsel for Sainovic and Lukic emphasise the
15 point that, in their view, the numbers of sexual assaults in this case
16 were quite low and therefore constituted opportunistic assaults that were
17 unconnected with the broader campaign. First of all, as I've mentioned,
18 Your Honours, there's no legal requirement that a crime has to be
19 committed in large numbers in order to be foreseeable for the purposes of
20 JCE III. Nor is there any legal requirement that a crime has to be
21 committed in large numbers to form part of an attack that would
22 constitute a crime against humanity. The case law more generally
23 confirms that even one act could qualify as a crime against humanity or
24 even persecution so long as it's not an isolated act or random. And
25 that's the Kunarac appeals judgement, paragraph 96, and the Blaskic
1 appeal judgement, paragraph 101, just by way of a couple of examples.
2 But as the Defence have asserted that the number of sexual
3 assaults in evidence was low, it's perhaps worth providing a little bit
4 more detail on this point. And to begin I want to correct something that
5 I said in my submissions earlier today where I referred to 11 sexual
6 assault incidents having been charged in the indictment. What I should
7 have said was there are 11 sexual assault incidents found to be proved by
8 the Trial Chamber.
9 THE INTERPRETER: Please show down. Thank you very much.
10 MS. JARVIS: I also referred to evidence on the record about an
11 estimated 50 additional sexual assaults. In particular, Your Honours,
12 K58, a witness in relation to Beleg, described how, while K20 and the two
13 other girls were absent from the room, more young women were selected by
14 paramilitaries who came to the rooms about four or five times until
15 approximately 20 young women or girls had been taken, with the last one
16 being returned at around 5.00 a.m.
17 These girls returned disheveled and crying, and K58 overheard one
18 of them telling her mother that she had been raped. That's trial
19 judgement Volume II, paragraph 63.
20 The Trial Chamber found that at least four women were sexually
21 assaulted in Cirez, but there was evidence that around 20 other women
22 were subjected to similar treatment. Trial judgement Volume II,
23 paragraphs 629 to 631.
24 And one of the three victims who the Trial Chamber found had been
25 raped in Pristina stated that around 10 to 15 other Kosovo Albanian women
1 had been taken to the Pristina hospital basement where she was held to be
3 That's Trial judgement Volume II, paragraph 880, and
4 Exhibit P2596.
5 In my submissions earlier I also referred to other reports of
6 rape on the record, and to those I could also add that human rights
7 observers and journalists published reports of rape and sexual assault
8 before, during, and after the 1999 campaign, and I refer to Exhibits
9 P385, P441 and P2228.
10 So for example, after the campaign, Human Rights Watch reported
11 96 credible reports of sexual assault by Yugoslav soldiers, Serbian
12 police or paramilitaries during the period of the NATO bombing. That's
13 Exhibit P228. So it's not correct, Your Honours, to say, even on the
14 evidentiary record, that the sexual assaults in issue were unusual
15 occurrences. But more fundamentally, even if a crime is opportunistic,
16 it can be foreseeable as confirmed by the Krstic Trial Chamber in
17 relation to the opportunistic rapes in Potocari.
18 My second point, Your Honours, is the reference by my learned
19 colleagues to the fact that the Trial Chamber looked at the Krstic and
20 Kvocka precedence in its judgement and we accept that there was reference
21 to these two cases. But of course, Your Honours, the Trial Chamber was
22 applying the wrong legal standard when it carried out its assessment of
23 these two cases. It's for Your Honours to now apply the correct legal
24 standard and draw guidance from the authorities in Krstic and Kvocka to
25 make your own determination. You're not bound by the Trial Chamber's
1 assessment, all the more so given the paucity of reasons given by the
2 Trial Chamber as to how these precedents were to be distinguished from
3 the case at hand.
4 And the third point, Your Honours, is in relation to the
5 arguments we've heard today that the Prosecution is proposing an approach
6 that would result in automatic liability or somehow a kind of strict
7 liability for all sexual violence during armed conflict. We have been at
8 pains, Your Honours, to explain why that's really not the case. We're
9 not talking about the general risk of sexual violence in conflict. We
10 are talking about a situation where there was a common criminal plan
11 which incorporated violence and what is foreseeable in that context.
12 What is missing in the arguments presented to you by my colleagues is the
13 reference, of course, to the fact that their clients signed on to this
14 common criminal purpose.
15 Even so, we're not saying that rape is a foreseeable consequence
16 of every joint criminal enterprise or, indeed, of every ethnic cleansing
17 campaign. Of course, it depends on the methodology employed by the JCE
18 members. Certainly every ethnic cleansing campaign similar to this one
19 which involves unleashing tens of thousands of armed men into villages
20 where they're going to come into one-on-one contact with the targeted
21 population in all of the other conditions that I've mentioned, then yes,
22 it is foreseeable that violations of physical integrity like sexual
23 assault will happen.
24 But of course, we recognise that an ethnic cleansing campaign
25 might be carried out by a different methodology. For example, if
1 shelling was the employed mechanism for trying to terrify people into
2 fleeing, which didn't involve sending troops into villages door-to-door,
3 in that situation, Your Honours, depending on the circumstances, it might
4 well be that a physical violation like sexual assault would not be
5 foreseeable. So we very much recognise that it depends on the particular
6 circumstances but given the nature of this campaign, we say that
7 violations of physical integrity including sexual assault were indeed a
8 foreseeable possibility.
9 Thank you, Your Honours.
10 MR. KREMER: Your Honours, I will briefly address some of the
11 responses concerning ground 1 and ground 6.
12 Concerning ground 1, the Prosecution's core case was that Kosovo
13 Albanians were targeted and deported or otherwise forcibly displaced by
14 forces commanded or co-ordinated by the accused. For the reasons that
15 are set out in the Prosecution appeal brief and in our reply brief, the
16 indictment properly pled persecutions by forcible transfer and
17 deportation and the Chamber erred in giving the indictment an overly
18 technical reading resulting in the non-conviction of the persecutions by
19 forcible transfer and deportation.
20 Our position is, and this is set out in paragraphs 8 to 10 of the
21 Prosecution reply brief, there was no waiver. There could be no waiver
22 because the indictment was clear and the Trial Chamber gave it an overly
23 technical reading. I believe that everything that needed to be said is
24 found in the briefs and Your Honours can make your own assessment as to
25 whether or not this position is correct.
1 Concerning ground 6, I have several points. First, counsel for
2 Pavkovic raises his appeal point concerning why his appeal should be
3 mitigated. We deal with this in our response brief at paragraph 149 to
4 151. His response here is not a response to the Prosecution appeal brief
5 per se.
6 Second, contrary to the submissions made by Pavkovic for each
7 crime identified in Volume II, the Trial Chamber made a specific finding
8 as to which entity, the VJ or the MUP, was involved. Where it could, it
9 also made findings about specific divisions or units involved in the
10 crimes and even differentiated crimes committed by other forces. The
11 crimes were imputed to Pavkovic and other JCE members because the
12 JCE members used the VJ and the MUP forces to carry out the crimes. And
13 I refer you to Volume III, paragraph 783.
14 Third, without responding to our sentencing appeal, counsel for
15 Sainovic went into depth comparing and contrasting Sainovic's
16 responsibility with others who were not charged, or tried in this case,
17 such as Milosevic. While his submissions were passionate calls for the
18 acquittal of his client, they were not a measured response against our
19 submissions concerning Mr. Sainovic's role and responsibility for the
20 crimes and the gravity of the crimes for which he was convicted. Which
21 together, we submit, justified a sentence significantly in excess of
22 22 years.
23 Fourth, Mr. Lazarevic and Mr. Lukic did not respond at all.
24 Mr. Lukic instead took the opportunity to augment his appeal including
25 his sentence appeal, with more references to arguments that he made at
1 trial or included in his appeal brief and were rejected -- arguments
2 which were rejected by the Trial Chamber such as the argument that NATO
3 and the KLA were among the many reasons for the Kosovo Albanian
4 displacement. Issues that the Trial Chamber dealt with squarely and
6 And this leads me to my next point, counsel for several of the
7 accused argue that the Prosecution should be estopped from arguing
8 anything in excess of 20 years' imprisonment. We comment on this
9 argument in our reply brief. The practice of sentencing in this Tribunal
10 changed before the conclusion of the trial in this case. So there was no
11 sentencing hearing separate from the trial. And at the time the
12 Prosecution was asked to make sentencing submissions, it had no knowledge
13 as to which counts, if any, the accused would be found guilty of.
14 Both the Prosecution and the Defence were required to provide a
15 rough range of possible sentences depending on whether the accused were
16 convicted of one or more crimes and depending on the convicted mode of
18 Contrary to what is being asserted by the accused, the
19 Prosecution did not simply ask for sentences of 20 years at trial. It
20 requested 20 years to life depending on which specific mode of liability
21 and which crimes the accused are found guilty. I refer you to our final
22 trial brief at paragraph 1100 and the trial transcript at page 26947.
23 20 years was our minimum suggested sentence, assuming the accused were
24 found guilty of only one of the crimes and the lowest mode of liability.
25 The Defence would have you believe that when the Prosecution
1 gives a sentencing range, it should be limited to arguing that on appeal,
2 regardless of the outcome of the trial and regardless of the breadth or
3 narrowness of the convictions. We respectfully disagree.
4 The Chamber in this case went beyond convicting the accused to
5 just one of the crimes under the lowest mode of liability. All four
6 accused were convicted of committing or aiding and abetting the forcible
7 displacement of hundreds of thousands of Kosovo Albanians. The JCE
8 members were convicted of other crimes flowing from their criminal
9 campaign. The accused, in our submission, deserve the severest
10 punishment this Tribunal -- or this Chamber believes is appropriate.
11 In our submission, the Trial Chamber had the responsibility to
12 send a clear message to those who perpetrate crimes on this scale that
13 they will receive the most severe sentences for their crimes. In this --
14 in not doing this, we submit, the Trial Chamber erred, and we ask you to
15 correct this error and significantly increase the sentences for all
16 four accused.
17 Let me now turn to Judge Tuzmukhamedov's question that was asked
18 this morning of Ms. Jarvis, and the question I understand, just so that
19 we can frame the question I'm answering and if it is -- it requires more
20 amplification I'd welcome it. Where the Trial Chamber beyond reasonable
21 doubt based on evidence other that reports of the MUP made a conclusion
22 that the displacement of upwards of 700.000 could be attributed to the
23 common plan of the members of the joint criminal enterprise.
24 And I'll try to answer the question as we understand it in
1 In paragraph 45 of Volume III, the Chamber found that although
2 the NATO bombing and the KLA activities were a factor in the complicated
3 situation on the ground in 1999, these were not the cause of over
4 700.000 people moving en masse both within Kosovo and then across the
5 border. In reaching this conclusion, the Trial Chamber took into account
6 the following seven factors. First, the direct and consistent testimony
7 of the Kosovo Albanian witnesses and victims who testified at trial about
8 their own expulsions and that of many others from Kosovo and who said
9 that they left Kosovo because of the actions of the FRY and Serb forces,
10 not the NATO bombing. And that's found at Volume II, paragraphs 33, 69,
11 163, 279, 285, 887, 915, 942, and 973.
12 In assessing their testimony, the Chamber considered the fact
13 that these witnesses came from a broad section or cross-section of that
14 community generally with no connection to one another beyond their
15 victimisation and found that it was inconceivable that they could or
16 would all have concocted such detail and consistent accounts of the
17 events that they experienced and witnessed. That's Volume II,
18 paragraph 1175.
19 Second, the Chamber took into account the testimony of former MUP
20 and VJ personnel who directly participated in expelling of the Kosovo
21 Albanian civilians from their homes in different municipalities. And I
22 refer the Chamber to Volume II, paragraphs 1172 to 1174; Volume III,
23 paragraph 43. And to also look at Volume II, paragraph 74, 145, 152 to
24 155, 163, 228 to 232, 235 to 237, 398 to 401, 469 to 470, 498 to 507,
25 831, 997 to 999, and 1067.
1 Third, the testimony of internationals who were on the ground and
2 confirmed the consistent account of the victims. I refer you to
3 Volume II, paragraph 836 in particular, but also Volume II,
4 paragraphs 848 to 850, 858; Volume II, footnote 2820, in particular
5 Knut Vollebaek, transcript 9522 to 9524, testifying on 31 January 2007.
6 They also took into account data from the UNHCR on the numbers of
7 refugees crossing into Macedonia, Albania and Montenegro. I refer you to
8 footnote -- to Volume II, footnote 2820; Exhibit P2438, redacted
9 statement of Neill Wright of the UNHCR; P738, the UNHCR estimates of
10 displacement and return.
11 Fifth, the fact that NATO bombs struck targets across the FRY
12 with Belgrade suffering the most destruction and yet people did not leave
13 Belgrade and other parts of the FRY in the massive numbers which fled
14 Kosovo. It's a finding at Volume II, paragraph 1177.
15 Sixth, the fact that in the summer of 1998, despite the ongoing
16 conflict between the VJ and the MUP and the KLA, there was no massive
17 flood of people across the borders. Volume 1, paragraph 1177.
18 And finally, the MUP's own reports of the numbers of people
19 crossing the border into Albania, Macedonia, and Montenegro. Volume I,
20 paragraph 1150.
21 It was based on this wide range of mutually corroborating
22 factors, based on direct evidence and circumstantial evidence from
23 witnesses who testified about their own experiences, their own
24 observation, and documented numbers by not only the MUP but other
25 organisations that the Chamber reasonably concluded that, first, the
1 reason for the departure of the Kosovo Albanian civilians was the
2 violence directed against them by forces under the control of the FRY and
3 Serbian authorities, not the NATO bombing. And I refer you again to
4 Volume II, paragraph 1178, which has been referred to during the
5 Prosecution submissions.
6 And this forcible displacement could only be attributed to the
7 common plan of the members of the JCE. And that's found at Volume III,
8 paragraphs 95 to 96.
9 The Trial Chamber's conclusion as to the reason and numbers of
10 people forcibly displaced by the action of the JCE members to implement
11 their common plan was a reasonable one and is entitled to considerable
12 deference. As an Appeals Chamber, you must ask yourselves if this
13 conclusion was one no reasonable Trial Chamber could make, and because
14 this is not a de novo review, it is our submission that the
15 Trial Chamber's conclusion was in fact reasonable. And I hope I've
16 answered your question in full.
17 JUDGE TUZMUKHAMEDOV: Thank you very much. But I'm afraid that
18 somebody had to sacrifice his or her lunch. That was quite impressive
19 and I only hope that this would -- well, firstly, when you referred 19 --
20 lines 15, 16, apparently you were referring to 115, Volume II, rather
21 than Volume 1.
22 MR. KREMER: I'm sorry?
23 JUDGE TUZMUKHAMEDOV: I don't know how to work with the Lotus
24 LiveNote here, but anyway, page 98 --
25 MR. KREMER: Yes.
1 JUDGE TUZMUKHAMEDOV: -- lines 15 and 16, you said, and it was
2 recorded so, Volume I of paragraph -- and paragraph 1150. I understand
3 you were referring to Volume II, paragraph 1150. All right. Never mind
4 this is technical. And the other thing I hope that ...
5 MR. KREMER: I'm sorry, I can just double-check that --
6 JUDGE TUZMUKHAMEDOV: Yes, you check it, certainly. Maybe I'm
7 wrong as well. But anyway, thank you very much for that analysis and I
8 would hope that this would reconcile paragraphs 1150 and 1179 -- 78, the
9 numbers given in those two paragraphs in Volume II, and also the reasons
10 for leaving, for displacement or for flight of displaced persons which
11 are given in 1175 in Volume II would fit into that reconciliation of
12 numbers between 1150 and 1178. Thank you.
13 MR. KREMER: Based on my reading of the multiple paragraphs, the
14 numbers do reconcile themselves. The unfortunate part of the judgement
15 is that there are numbers coming from different places -- different
16 organisations and at different times, and the -- the total numbers are
17 expressed as more than 700, but we do know that up until May 1st, already
18 715.000 had been displaced and the campaign continued beyond that date
19 into early June. So the final number was never calculated to my
20 understanding or through my reading of the judgement.
21 JUDGE TUZMUKHAMEDOV: Thank you.
22 MR. KREMER: Subject to any questions Your Honours may have,
23 those are my submissions. On behalf of the Prosecution, I would like to
24 thank Your Honours for your attention. I would like to thank my
25 colleagues for their professionalism during the course of the hearing. I
1 would like to thank all of the staff for their assistance and indulgence
2 to five long days of counsel making their remarks, and particularly I'd
3 like to thank the interpreters on behalf of us fast speakers for
4 reminding us periodically that we are making their jobs difficult, and
5 for having done so, I apologise again. Thank you.
6 JUDGE LIU: Thank you very much. Yes, Mr. Ackerman.
7 MR. ACKERMAN: Your Honour, at the beginning of the -- what was a
8 reply of the Prosecution, they injected some completely new matter into
9 this case, telling you what the Prosecutor for the STL said about the
10 Perisic case. And if you're willing to treat that at about the same
11 level you'd treat it from a chief Defence counsel in an international
12 court, then I don't have any problem with it, but I don't think it has
13 any impact at all. But if you think it might, then we would like some
14 time to look at it and give you a response in writing with regard to --
15 we tried to find it. It's not on their web site. I don't know where the
16 Prosecutor found it. But in any event, if they could provide it to us
17 and we could be allowed to respond to it, that would be okay, or I think
18 it would be much easier to just say it has no meaning and we just let it
20 JUDGE LIU: Well, I would like to thank you very much for your
21 submission, but, however, this is a legal document of other Tribunals
22 which has no binding force upon this Tribunal. And according to the
23 Scheduling Order of this hearing, I would like to invite the defendants
24 to make their personal statement if they wish to do so.
25 Yes, Mr. Sainovic, you have the floor. You have ten minutes.
1 THE APPELLANT SAINOVIC: [Interpretation] Thank you,
2 Mr. President.
3 Your Honours, I was a state official. I was elected into the
4 federal parliament back in 1986, and from the parliament into a number of
5 governments in the 1990s. I was still in my term of office as a federal
6 deputy when I came before this Tribunal in 2002. Such an election, of
7 course, implies assuming proportional responsibility for the state of a
8 country. A state official represents the state in good times and bad.
9 In good times there are many of those who take credit for it. In bad
10 times, a state official does not have the right to shy from
11 responsibility and it is in that sense that I stand before you.
12 There were times earlier on when the federal government would
13 send me to Vienna and to Kuwait and those were nice times. When the
14 crisis broke out, it sent me to Kosovo twice before and near the end of
15 the war and that's how I happened to be there. The war in 1999 was
16 exceptionally complex. On the ground there was a clash between the
17 forces of the Federal Republic of Yugoslavia and Serbia and the KLA which
18 used civilians as its base when on offensive activities and would merge
19 with civilians in defensive activities. From the air there was a large
20 scale combat activity of the greatest power in the world whose technical
21 superiority often kept it out of reach or was often unavailable and out
22 of reach of the Army of Federal Republic of Yugoslavia. This gave an
23 unparalleled dynamic and intensity of the conflict. I would truly not
24 want to wish upon anyone who would wish to compare it to 1998 to be in a
25 position to experience the difference in person. The activity of all
1 these forces at the same time led to appalling civilian casualties in
2 Kosovo and across Yugoslavia. The enormous human suffering is felt to
3 this day. I myself will suffer for it as long as I live.
4 Only the four of us from one side of the conflict are at trial
5 here. Am I aware that as a participant in the events preceding the war
6 and during the war I am answerable for the consequences of my actions? I
7 am aware of it. Why did I plead not guilty here? Precisely for that.
8 That was how I pled in respect of the indictment which substantially
9 distorted the picture of the situation in my country and my role in it,
10 and this is what I have been fighting against in these proceedings for
11 more than ten years now.
12 Was there a meaning to this struggle? I believe that there was,
13 and I will give you an example. Over the past several days, all the
14 parties to the proceedings challenged specific portions of the trial
15 judgement. However, nobody challenged the part where it was found that
16 my country entered into peace negotiations in good faith and that it
17 wasn't to blame for the failed negotiations at Rambouillet as the
18 indictment alleged. In Volume I, paragraphs 407 and 410.
19 I participated in these negotiations with a deep conviction that
20 peace was possible, both for me and my country. This finding constitutes
21 a significant outcome even if it may have cost me ten years.
22 Unfortunately, the Trial Chamber convicted me even for that which
23 I did not participate in and for the position that I did not hold in the
24 relevant period. Although its findings were different from the
25 allegations in the indictment, nevertheless, they were in essence far
1 from the situation as it was in reality. This is the subject matter of
2 my appeal which is before you, Your Honours. I fully stand by everything
3 that my Defence counsel stated here, and I have nothing to add to that.
4 Thank you for your attention.
5 JUDGE LIU: Thank you very much, Mr. Sainovic.
6 Mr. Pavkovic. You also have ten minutes.
7 THE APPELLANT PAVKOVIC: [Interpretation] Your Honours, I am
8 Lieutenant-General of the VJ, retired, Nebojsa Pavkovic, a participant in
9 the events of the 1998 and 1999. I am a professional soldier who has
10 completed all the various military schools with highest credit and I have
11 carried out various duties from the lowest to the highest level and held
12 various positions. I built my career long before I met Mr. Milosevic,
13 which was in late May 1998. I spent six years at Kosovo. I was an
14 operational at the corps and then a Chief of Staff of the corps and then
15 the commander of the corps.
16 The appointment of a commander of a corps is not carried out the
17 way the Prosecutor described it. Out of 760 cadets who graduated from
18 the academy, only 20 per cent are generals. Five were corps commanders,
19 one was army commander, and one was Chief of the General Staff.
20 In 1998, I held the duty of the corps commander and received
21 orders solely from the army commander, General Samardzic. The Chief of
22 the General Staff, Perisic, never issued me with a single order.
23 Milosevic, the president, never issued me with a single order.
24 Mr. Sainovic, for whom I have respect, never issued me an order and, with
25 all due respect, I would never accept an order from Mr. Sainovic who has
1 no military training. And to tell you the truth, if somebody asked me
2 why I am [as interpreted] here, I wouldn't be able to give you an answer.
3 Your Honours, I found it hard that I should be accused as a
4 Serbian general who waged a war against my own people, because the
5 Albanians are my own people. I know them well and I have many friends
6 among them. That's why I would like to draw your attention to several
7 factors which led to the creation of the climate as described in the
8 indictment. This was primarily an unlawful terrorist organisation which
9 tried to achieve its goals through terrorist actions and it was declared
10 a terrorist organisation in March of 1998.
11 Furthermore, the lawful forces of a sovereign independent state,
12 a member of the United Nations, its army and the MUP were trying to
13 combat terrorism in an area. You have to understand the fact that there
14 were 1.403 settlements in Kosovo of which 1.050 were Albanian, 150 were
15 Serbian, and the rest were mixed. Every Albanian village had armed men.
16 This was a tradition. There were -- there was armed guard. There were
17 patrols, and there were more than 100.000 [Realtime transcript read in
18 error "10.000"] pieces of weaponry in the hands of the Albanians.
19 It is important for me to say that the climate of terror in
20 Kosovo was not produced by the law enforcement agencies of the Republic
21 of Yugoslavia. Rather, it was the terrorists of the national army of
22 Kosovo. 80 per cent of the territory of Kosovo was blocked in 1998,
23 90 per cent of roads were blocked and, later on, as the roads leading to
24 the frontier were blocked as well, the Yugoslav state organs decided that
25 terrorism in Kosovo be combatted with the use of the VJ and MUP. We
1 embarked on this operation and completed it in October 1998. There were
2 no crimes committed. There were crimes committed in Rznici, Jablanicko
3 Lake, et cetera, committed by the Albanians. All the civilians [Realtime
4 transcript read in error "sips"] who were displaced returned to their
6 After the arrival of the OSCE mission, the army withdrew into the
7 barracks, the MUP left Kosovo and Metohija, the KLA took all the
8 positions. I would like to explain to you why the civilians had moved in
9 the first place. I don't have much time but I may be able to explain.
10 As the Prosecutor highlighted, the population moved from
11 30 municipalities which are in the border area of Kosovo and Metohija.
12 In operative and tactical terms they are on the front line of the
13 3rd Army and the Pristina Corps. Those were the positions that were
14 taken by the units of the Army of Yugoslavia pursuant to an order from
15 the Grom 3 directive. It was ordered that those positions be taken. At
16 the moment when we started moving, we were attacked by the KLA and what
17 happened was serious conflicts.
18 Let me just emphasise that in the course of 1998, 1.845 terrorist
19 attacks were carried out in Kosovo. A total of 368 people were killed,
20 out of which 208 civilians, 757 -- or, rather, 758 civilians were killed,
21 158 were kidnapped. And you can tell from all that who was it who spread
22 the climate of terror. The Army of Yugoslavia, the Pristina Corps
23 namely, had about 11.000 men. Of that the combat segment of the Pristina
24 Corps represented 5.001 men. Everybody else was engaged on the border,
25 deployed on the security detail around various military facilities and so
1 on and so forth.
2 I don't want to talk about NATO. NATO is a military
3 organisation, the most powerful organisation that attacked my country, my
4 small army, and we defended ourselves as best as we could. The biggest
5 problem for us were terrorists, i.e., the KLA. I can tell you that the
6 KLA, on the 1st of January until the 23rd of March, carried out
7 632 attacks. 101 against the army, 298 against the MUP, and 233 against
8 the civilians. Every day 6 to 8 attacks on average. This is an
9 analysis, and all the evidence may be found among the tens of thousands
10 of exhibits that we have seen here and that we have submitted.
11 When it comes to civilians, three to four civilians were killed
12 every day. And they were killed by terrorists.
13 When it comes the deportation of civilians, as the Prosecutor
14 calls that, even up to 1998, from 1981, whenever conflicts happened in
15 Kosovo, whenever there was disorder, civilians fled the territory of
16 Kosovo. It happened all the time. In 1998 it didn't happen, but they
17 again started leaving Kosovo in 1999 from those 13 municipalities that
18 were along the borders. There are 29 municipalities in Kosovo. We heard
19 arguments why people did not leave the remaining 16 municipalities, why
20 there were not conflicts there because there were no terrorists there.
21 There was no need for exodus from those municipalities. We had the
22 fiercest battles with terrorists during the aggression, and with this
23 regard, I would like to point out that the NATO campaign contributed
24 largely to the movement of civilians.
25 During the 78 days of the aggression, the Federal Republic of
1 Yugoslavia suffered 3.380 air-strikes. In Kosovo, 1.574 air-strikes,
2 which accounted for over 50 per cent of the total number of air-strikes.
3 Cities in Kosovo that suffered air-strikes, Pristina 406, Prizren 334,
4 Urosevac 240, Pec 108, Kosovska Mitrovica 116 times. 752 settled areas
5 in Kosovo suffered air-strikes, some of them 5 to 8 times. The units of
6 the 3rd Army suffered 4.662 projectiles thrown at them. That means
7 that --
8 JUDGE LIU: Mr. Pavkovic, I believe that your time is up. I will
9 give you one more minute for you to finish your statement.
10 THE APPELLANT PAVKOVIC: [Interpretation] Thank you, Your Honour.
11 The arguments concerning the conduct of the army of Kosovo are
12 numerous. I tried and I knew I would fail to tell you everything, but
13 it's all in our documents. It's all on the record. As for the conduct
14 and the position of my Defence counsel, I stand by them completely. And
15 I thank you for your attention and I thank you for enabling me to address
16 you. Thank you.
17 JUDGE LIU: Thank you very much.
18 MR. ACKERMAN: Your Honour.
19 JUDGE LIU: Yes, Mr. Ackerman.
20 MR. ACKERMAN: There are some transcript errors that I need to
21 point out real quickly if I can.
22 JUDGE LIU: Yes.
23 MR. ACKERMAN: Page 104, line 12, he was talking about
24 Mr. Sainovic and he said, "I don't know why he is here," instead of
25 saying, "I don't know why I am here." He was referring to Sainovic, "I
1 don't know why he is here."
2 At 105, page 3, regarding the pieces of weaponry possessed by the
3 Kosovo Albanians in 1998, he said "100.000" and the transcript says
4 "10.000." And at 105, 14, he talked about "all the civilians" and the
5 transcript says "all the sips." I don't know what "sips" means but
6 that's -- those are the changes.
7 JUDGE LIU: Thank you very much. I believe that the translator
8 will check according to the recording. Thank you.
9 Mr. Lazarevic, may I invite you to make a personal statement, if
10 you wish, for ten minutes.
11 THE APPELLANT LAZAREVIC: [Interpretation] Mr. President,
12 honourable members of the Appeals Chamber, I would like to thank you for
13 giving me the opportunity to address you. I would like to draw your
14 attention briefly to some aspects of the factual context from the
15 military doctrine aspect. Nothing has been said about that here these
17 I would like to point out that 19 members of NATO, in the spring
18 of 1999, carried out a classical foreign aggression against Yugoslavia.
19 They engaged the first and the fifth echelons of the forces of the
20 separatist terrorist armed rebellion. It all resulted in a practical
21 simulation of the exodus of Albanian civilians. In terms of the forces
22 that were engaged, the types and the power and the quantity of lethal
23 weapons which were used in Kosovo and Metohija, they were tantamount to
24 an equivalent of 8 to 10 nuclear bombs that thrown on Hiroshima, and
25 especially in terms of its brutality and its targets, in view of the
1 international and [indiscernible] aggression was one of the most
2 asymmetrical wars ever conducted in the world. And while that war for
3 some who provoked it was a modern war, for others it was a campaign. I
4 don't understand the word "campaign." For the leadership of the
5 terrorists it was a guerrilla total war, that's what they call it. And
6 for military and geopolitical analysts in the world, it was also a
7 nuclear war because 31.000 nuclear radioactive projectiles were deployed
8 in as many as 102 locations. Over the next 4.5 billion years they will
9 continue bringing death and misfortune to Serbia. At the same time, to
10 date, this has been the only near neocortical war ever conducted in the
11 history of the world.
12 NATO achieved its goals on the 24th of March, 1999, and it did
13 not pay much attention to its targets. The complete border area was
14 carpeted by aerial bombs. Everything that looked like a possible
15 military threat, including even wooden pillars, everything was their
16 target. Densely populated urban neighbourhoods were targeted every day,
17 several hundred times in one city. Easily discernible commercial and
18 production facilities were especially interesting, as well as the long
19 columns of red Albanian tractors belonging to Albanian civilians which
20 were on their way back to their homes. Even the famous Charlie, the
21 famous aircraft pilot, could distinguish them from Serbian tanks. NATO
22 commanders ordered the massacre of those civilians and the whole world is
23 aware of that.
24 In the territory of the region alone, NATO carried out
25 2.000 air-strikes or 30 air-strikes every day. There were several
1 hundreds of rocket strikes, and in all of those attacks, civilian targets
2 accounted for 36 to 38 per cent of all the targets.
3 Unfortunately, Your Honours, these are irrefutable, horrendous,
4 terrible facts describing NATO aggressors' activities in the area and its
5 contribution to the misfortune of all those who happened to found
6 themselves there at the time.
7 Truth be told, or, rather, it is true that in Kosovo and Metohija
8 alone, NATO killed as many as 500 civilians and destroyed over
9 700 various facilities.
10 These facts cannot be masked by any conflation, by exhibitions,
11 or by the abolition of those who caused all that misfortune.
12 In the territory of the region during the war, death came from
13 high altitudes, from distances over 2.500 kilometres, across -- from
14 across the border facing Albania on a front line stretching for several
15 dozens of kilometres, from a hundred of Albanian villages which had been
16 transformed into terrorist strongholds or paramilitary bases. According
17 to the principle of two villages of which one was a terrorist stronghold
18 and the other served for the removal of civilians into them. The tactic
19 of Mao Tse-tung of a thousand fires was applied which means from all
20 sides, from all places at any time.
21 In the conditions of such a war inferno and war chaos, the
22 population sought salvation in flight, movement, transfer, in seeking
23 shelter, like anywhere elsewhere where there's death and where is fire.
24 Their roads led to Albania, Serbia, Macedonia, Montenegro, Turkey,
25 Croatia, to far away countries in the West, as far as possible away from
2 The UNHCR data say that 54 per cent of the Serbian and
3 non-Albanian population of the region and 45 per cent of the Albanian
4 population sought refuge outside of the territory of the region during
5 the war.
6 In Kosovo and Metohija, members of the Pristina Corps did not
7 have a place to flee from death. They suffered as much as 95 per cent of
8 the losses of the total losses of the Army of Yugoslavia, and the same
9 destiny was shared by several hundred thousand of Albanian civilians who
10 believed that they would survive with the help of the Pristina Corps.
11 And this is still the talk of the day among Albanians in Kosovo and
13 Therefore at the beginning of spring over 14 years ago, at the
14 focal point of the strategic defence in the war inferno, the
15 Pristina Corps found itself in a strategic trap faced with a mission
16 impossible. In such conditions which would have been difficult to tackle
17 by any military, the corps -- the corps employed a tactic that
18 immediately after the war NATO named the 4M tactic - masking, manoeuvre,
19 mobility, morale. When translated --
20 JUDGE LIU: Mr. Lazarevic, I believe that your time is up. So
21 you may have one more minute to finish your statement.
22 THE APPELLANT LAZAREVIC: [Interpretation] Your Honours, Judges of
23 the Appeals Chamber, at ten Status Conferences I advised the President,
24 during 122 minutes in total, with the status of my health. In June last
25 year, the last team of medical consultants concluded that I was a patient
1 whose health is seriously undermined, requiring urgent measures to bring
2 his health up to a tolerable level and I would say at least up to the
3 level of a detainee. In the past year there have been no such measures.
4 God help me, but I also hope the Registry will not forget me either, or
5 the Trial -- or the Appeals Chamber, as far as my health is concerned.
6 Your Honours, thank you for your attention. Thank you for your
7 patience and your understanding, I hope.
8 Merci beaucoup, xiexie, spasiba, grazie, tesekkur ederim.
9 [Interpretation] My gratitude is sincere, and I hope you will
10 excuse me for my bad pronunciation.
11 JUDGE LIU: Thank you. Thank you very much, Mr. Lazarevic.
12 Mr. Lukic -- yes.
13 MR. CEPIC: I'm sorry for interruption, Your Honour. With your
14 leave, just one correction in transcript. Page 110, line 22, I think
15 that the words "under the order of KLA" missing in transcript.
16 JUDGE LIU: Thank you very much.
17 MR. CEPIC: Thank you, Your Honour.
18 JUDGE LIU: Mr. Lukic, you also have ten minutes to make a
19 personal statement. You also have ten minutes to make your personal
21 THE APPELLANT LUKIC: [Interpretation] Thank you. Your Honours,
22 I'm truly sorry and I truly regret all the casualties, especially the
23 civilian ones, and the suffering of the citizens caused by the
24 unfortunate war in Kosovo. I want to tell you that I did not go to
25 Kosovo of my own volition, but following orders and the law. I went
1 there neither willingly nor voluntarily. My assignment to Kosovo was the
2 result of a regular rotation of the head of staff that was done annually
3 for a number of years before that. The duties I was sent to perform were
4 the police duties envisaged by the constitution and the law. The safety
5 of both the Serbs and the Albanians was extremely jeopardised by the
6 criminal activities of the terrorist organisation that called itself the
8 The authority of the staff and me as its head was rather limited.
9 The staff was not a command body and I was not a commander, neither
10 de jure nor de facto. Thus, for example, I was not authorised to decide
11 on or institute any disciplinary, misdemeanour or criminal proceedings
12 against police officers who violated the law. I was not in a position to
13 suspend or dismiss any senior police officer. You will agree without
14 those powers there can be no command function.
15 That I was not a commander is also confirmed by the following
16 fact: On the eve of the bombing, Minister Stojilkovic informed me that,
17 as agreed with President Milosevic, he had sent his assistant,
18 Lieutenant-General Obrad Stevanovic to Kosovo with the task of commanding
19 and controlling all the Ministry of Interior forces for the duration of
20 the state of war. The evidence confirms that this was indeed case.
21 In addition to being an assistant minister and the chief of
22 police administration, General Obrad Stevanovic was also de jure and
23 de facto the commander of all the PJP units of the Serbian MUP. Besides
24 the three functions he discharged, Obrad Stevanovic was also known to be
25 fully trusted by Stojilkovic and Milosevic alike.
1 When the bombing started, the security situation became dramatic.
2 All those who found themselves in Kosovo were in danger, especially
3 civilians. Despite my limited powers and authority, I demanded that the
4 civilian population be additionally protected and that all perpetrators
5 of crimes be arrested. During the 78 days of the bombing and constant
6 terrorist attacks, the police identified and filed criminal reports
7 against at least 785 perpetrators. 443 of whom were arrested
8 immediately. Over 95 per cent of them were Serbs, including 46 policemen
9 and 97 soldiers. Almost all of the crimes concerned were committed
10 against the Kosovo Albanians.
11 My commitment and my insistence on arresting anyone who committed
12 crimes was met with disapproval by some of the Serbian political leaders
13 in Kosovo. The most prominent among them intended even to have me
14 liquidated because of the arrests of police officers who had killed
15 Albanian civilians. I faced no less serious threats again in 2001, when
16 I initiated the investigation of the mass graves and the crimes against
18 Everything I did in my entire professional career was for
19 protecting citizens. I never discriminated against people on ethnic or
20 any other grounds. I was brought up in this spirit and trained to act in
21 this manner since I was 15.
22 During my tenure in Kosovo, I did not personally commit any
23 crime, nor did I order, plan, instigate, aid, conceal or otherwise
24 participate in any crime. All my actions, every word I said, and every
25 letter I wrote were aimed at preventing crimes. Therefore, I wish to
1 emphasise once again that I am not guilty of any crimes that I have been
2 convicted of. And I did not know of any of these crimes at the time.
3 I found out about the joint criminal enterprise from the
4 indictment. I was never aware of any plan, intent or objective to have
5 the Kosovo Albanians expelled. No one ever requested or suggested to me
6 to do anything of that sort, and if they had, I most certainly would not
7 have participated in it. I cannot accept the finding in the judgement
8 that I was a member of a joint criminal enterprise headed by Milosevic.
9 It was only after being sent to Kosovo in mid-1998, that I was personally
10 introduced to Milosevic, Milutinovic, Sainovic, Pavkovic, and Lazarevic.
11 I was never a favourite or a confidante of Milosevic or of Minister
12 Stojilkovic or of his assistants Djordjevic and Stevanovic. Quite the
13 contrary, all I ever experienced from them was humiliation and
14 degradation. This fact was common knowledge Serbia. Hence the decision
15 of the government that was formed after the fall of Milosevic to have me
16 promoted and appoint me as chief of police of Serbia. Moreover, foreign
17 intelligence agencies that were involved in the background checks before
18 my appointment had no objections as to my conduct in Kosovo.
19 Your Honours, these are some of the facts. I hope you will take
20 into account in your deliberations regarding the appeal brief and our
21 oral submissions. I hope that your decision will remedy the injustice
22 done to me by the trial judgement.
23 Thank you very much for allowing me to address you.
24 JUDGE LIU: Thank you, Mr. Lukic. Any other corrections?
25 MR. BAKRAC: Here is another. We have one correction,
1 Your Honour.
2 JUDGE LIU: Yes.
3 MR. BAKRAC: Page 114, line 10, Mr. Lukic mentioned Serbian
4 political leaders in Kosovo and he mentioned local Serbian political
5 leaders in Kosovo, because there were some others who were not local from
7 JUDGE LIU: Thank you. Mr. Kremer.
8 MR. KREMER: Yes, in -- I've had the opportunity to follow up on
9 Judge Tuzmukhamedov's corrections or suggestions that we -- I made an
10 error in my submissions and you were indeed correct, and I apologise for
11 that. And I'd like to point out three errors. One is page 98, line 11.
12 It should have read Volume II, paragraph 1176. Paragraph 90 -- or
13 page 98, line 14, should have read Volume II, paragraph 1177, and then
14 the third reference in that sequence, page 98, line 16, again should have
15 read Volume II, paragraph 1150, and again I apologise.
16 JUDGE TUZMUKHAMEDOV: Thanks very much. I guess you missed two
17 lunches judging by the way you pronounced my name.
18 JUDGE LIU: Thank you. That concludes the Appeals Hearing in
19 this case. The Appeals Chamber would like to thank the parties for their
20 submissions. We would also like to thank the translators, the court
21 staff for all their assistance over the course of this week. The
22 Appeals Chamber will deliberate and issue our judgement in due course.
23 The hearing is adjourned.
24 --- Whereupon the Appeals Hearing adjourned
25 at 4.32 p.m.