Page 27119
1 Friday, 22 August 2008
2 [Defence Closing Statement]
3 [Open session]
4 [The Accused Lazarevic not present]
5 [The accused entered court]
6 --- Upon commencing at 9.02 p.m.
7 JUDGE BONOMY: Good morning, everyone. We continue this morning
8 to hear the closing arguments for Mr. Ojdanic presented by Mr. Sepenuk.
9 MR. SEPENUK: Thank you, Your Honour. Your Honours, yesterday we
10 were talking about General Ojdanic's advocacy of the limited use of the
11 army, his belief that the MUP should be used to protect the population,
12 and his belief, similar or if not more restrained, than that of General
13 Perisic and General Dimitrijevic concerning the constrained use of the
14 army, lest [Realtime transcript read in error "less"] that lead to war,
15 and in his military expert report, General Radinovic concluded from the
16 collegium of 10 July 1998
17 of the VJ for the defence of the civilian population in settlements, for
18 that would surely lead to a general war in Kosovo and Metohija."
19 By the same token in a collegium of 19 June 1998, General Ojdanic
20 stated that with respect to the establishment of a reserve army unit in
21 Serbia
22 don't think that we could take a unit from Serbia and send it down there
23 without a decision by responsible organs." That's P921 at page 15.
24 In the collegium of 24 August 1998
25 stated that the VJ was then "being engaged quite extensively" with the
Page 27120
1 MUP and anti-terrorist operations. General Dimitrijevic was concerned
2 about that because he thought it "could be quite a strong reason to
3 decide to launch air-strikes." That's at page 11.
4 General Ojdanic, after noting that in his opinion VJ units "are
5 engaged too much outside the border area" at page 13 said as follows:
6 "General Aco," meaning General Dimitrijevic, "was right to ask that
7 question and that is about the extensive use of the VJ working with the
8 MUP. And he goes on to say, "It turned out that throughout this
9 territory, that is in inland areas which are practically areas of fields,
10 it's Yugoslav army units which are in charge which in view of the remarks
11 made here is not good."
12 General Ojdanic then specifically agreed with General
13 Dimitrijevic that in view of these developments air-strikes could be
14 "nearing fast" as he put it and warned against this more extensive use of
15 the VJ working with MUP and anti-terrorist operations.
16 And the Trial Chamber will recall the testimony of General
17 Dimitrijevic in an answer to a question by Judge Bonomy. General
18 Dimitrijevic stated that before both and after becoming Chief of the
19 General Staff General Ojdanic "insisted that the army should be in the
20 function provided by the constitution and bylaws." So I don't think he
21 differed on that score either, namely that the worst way of using the
22 military was exactly the way it was being used.
23 Judge Bonomy, not being satisfied that this answer was specific
24 enough to his question further stated, "Was he, General Ojdanic, against,
25 as you were, the extensive use of the military in the fight against
Page 27121
1 terrorism?" General Dimitrijevic responded, "I think he was,
2 Mr. President." That's at TR 26732.
3 And that is indeed what the record shows. This makes even more
4 nonsensical the OTP's baseless claim in paragraph 768 of its brief that
5 "On 25 December 1998
6 Samardzic who had been critical of the VJ's role in internal operations."
7 The record references cited by the OTP do not support that
8 declaration, and it's clear in any event that General Ojdanic was solidly
9 in line with General Perisic and General Dimitrijevic on the VJ's limited
10 role in internal operations. And I think the Trial Chamber will recall
11 that General Samardzic became the Chief Inspector of the army. He took a
12 very active part in the collegiums after leaving as commander of the
13 3rd Army. That, I don't believe in any way was a demotion for him as
14 implied by the OTP.
15 The short of it is that the Prosecution is wrong when it asserts
16 that General Ojdanic was someone who was willing to use the army in a
17 less limited and restrained manner than advocated by General Perisic or
18 for that matter General Dimitrijevic. As we have shown, the truth is to
19 the contrary, and there is no evidence which indicates that
20 General Ojdanic, when he became chief of staff, was any more willing to
21 use the VJ than was absolutely necessary to repel KLA provocations and
22 attacks and to prepare for NATO air attacks or a potential land invasion.
23 And I won't repeat here the extensive evidence cited in our brief
24 concerning the members of the General Staff uniformly testifying that
25 there was no change of policy when General Ojdanic succeeded
Page 27122
1 General Perisic as the army's chief of staff.
2 Turning to another area. The OTP alleges that General Ojdanic
3 pre-war attempt to violate international agreements is shown by the
4 actions taken by him to deal with KLA provocations and operations during
5 the period when he was the deputy chief of staff. Again, we suggest that
6 the OTP has it wrong. I believe the most logical place to start this
7 discussion is the collegium of 10 July 1998, which is 3D641. At that
8 time, General Ojdanic stated, page 2: "As far as an anti-terrorist
9 operation is concerned, I am not aware of such an operation, but I would
10 like to stress that since General Dimitrijevic, and we all know that
11 military and diplomatic representatives are now permanently stationed in
12 the area, they will carefully record all developments in Kosovo and
13 Metohija, including the engagement of the units of the Serbian MUP and
14 the Yugoslav army."
15 So as late as 10 July 1998
16 not aware of such an anti-terrorist operation." And the reason that he
17 was unaware of this operation was made known by the immediately following
18 speaker at that collegium, General Dimitrijevic, who said, "As far as
19 anti-terrorist activities are concerned, they are being carried out too,
20 and taking all these things into consideration they have been planned so
21 that the MUP forces never appear as initiators but always responding to
22 attacks. I said nothing about this, yet it is already being done down
23 there."
24 So there it is in a nutshell, Your Honours. Dimitrijevic stating
25 that he had said nothing about an anti-terrorist operation, thereby
Page 27123
1 confirming the evidence we've heard in this trial that General Ojdanic
2 knew little, if anything, about such an operation until the day of that
3 collegium, 10 July 1998
4 The Trial Chamber will also recall the evidence concerning
5 General Ojdanic's complaint that he was not kept advised about combat
6 operations, and the testimony of General Radinovic, the military expert,
7 that General Ojdanic had a rather cold relationship with General Perisic,
8 not helped at all by General Perisic's veto of General Ojdanic's proposed
9 Ph.D. thesis on a military subject that was, at least according to
10 Radinovic, worthy of respect.
11 Both in his testimony and expert report General Radinovic
12 confirmed General Ojdanic's lack of awareness of both combat and
13 anti-terrorism operations, that's 3D1116, pages 77, 79, as did General
14 Obradovic, who testified that General Ojdanic did not attend any meetings
15 or sign any documents pertaining to either the promulgation of the 28
16 July 1998 anti-terrorism directive of General Perisic or its execution.
17 That's at 14942-43.
18 I think it's fair to say that before becoming chief of staff the
19 primary, if not the only significant reference by General Ojdanic to
20 anti-terrorist activities came when, as the deputy chief of staff,
21 General Ojdanic briefed the military attaches on 27 August 1998, a
22 meeting attended by Colonel John Crosland. This is another area where
23 both the Prosecution and Colonel Crosland got a wrong.
24 It was the long-time position of Colonel Crosland, from the time
25 of his first statement to the OTP in 1998 and continuing through both the
Page 27124
1 Milosevic trial and this trial, that he had shown a video to
2 General Ojdanic including joint attacks on Albanian villages by combined
3 VJ and MUP forces.
4 During the trial Ms. Carter for the Prosecution asked
5 Colonel Crosland:
6 "Q. Just to be clear on the time line, prior to your handing the
7 video over to Ojdanic and saying 'look, this is a joint operation, what
8 was the party line in regards to whether the MUP and the VJ were acting
9 separately or together.'
10 "A. "The party line on the whole was that there was -- there
11 was no collusion between the VJ and the MUP.
12 "Q. Okay. At the point that you then hand the video to Ojdanic
13 and put it to his face, is that when the party line changes and there's
14 acknowledgement on behalf of the VJ as a whole that there are joint
15 operations?
16 "A. I think there was. No, I don't think there was. There was
17 a resignation that they had been given factual evidence that was correct
18 and difficult to refute but they didn't wish to acknowledge that evidence
19 per se."
20 That's at 9789, 9790.
21 We now know that Colonel Crosland finally admitted during my
22 cross-examination that he did not show this video to General Ojdanic
23 personally, contrary to his prior statements and testimony but, rather,
24 he had "probably" given the video to Colonel Negovan Jovanovic, the
25 officer in charge of liaison duties with military attaches. That's at
Page 27125
1 9891.
2 The Trial Chamber will also recall the firm testimony of Colonel
3 Jovanovic that no such video was shown either to him or any member of his
4 staff. That's at 14911.
5 And when I think of the word agony used by you, Judge Bonomy, in
6 describing whether or not to admit the Perisic written interview, think
7 of the agony experienced by General Ojdanic, knowing for all these years
8 that the written statement given by Colonel Crosland and his trial
9 testimony was either mistaken or false, however you want to characterise
10 it. Think of how he felt, how General Ojdanic felt when Ms. Carter
11 rather bluntly asked Colonel Crosland about "putting the video to
12 Ojdanic's face."
13 What makes this matter even more sobering was Crosland's finally
14 admitting that he did not give the video to General Ojdanic. It happened
15 purely by chance, as Judge Bonomy noted at the time. It had nothing
16 whatever to do with the skill of my cross-examination but was just a
17 piece of good fortune. And that again shows how easy it is to get it
18 wrong and the fragility of our criminal justice system. You will also
19 recall that Colonel Crosland further admitted, contrary to his earlier
20 written statements and testimony in the Milosevic trial, that Mr. Paddy
21 Ashdown did not show General Ojdanic photos of joint VJ/MUP operations in
22 the fall of 1998, but Colonel Crosland did testify under oath erroneously
23 in that respect at the Milosevic trial, and in that case there was no
24 calling it back.
25 Again on the subject of General Ojdanic's pre-war intent, I would
Page 27126
1 like now to turn to the Prosecution's argument that General Ojdanic knew
2 of crimes committed by FRY and Serb forces operating in Kosovo in 1998
3 when he was the deputy chief of staff. That's OTP paragraph 787-788.
4 According to the Prosecution, this made General Ojdanic aware
5 that the units allegedly committing such crimes would continue to commit
6 them during the indictment period. The fact is, however, that the
7 Prosecution did not prove the commission of any specific crimes by Serb
8 forces in the year 1988 [sic], let alone that General Ojdanic knew of
9 such alleged crimes. The only two paragraphs of the OTP brief devoted to
10 this issue, 787, 788, do not mention the commission of crimes by Serb
11 forces but at most the excessive use of force.
12 In paragraph 787, the Prosecution talks not about crimes but,
13 rather, the evidence of Colonel Crosland at the 27 August 1998 defence
14 attache briefing that excessive force was allegedly used by combined
15 VJ-MUP forces in the Prilep-Glodjane area which had created a
16 humanitarian crisis to which General Ojdanic agreed.
17 We have already discussed the alleged use by Serb forces of
18 disproportionate force on pages 52 to 62 of our brief. In addition,
19 General Ojdanic's comments at the Defence attache meeting in August 1998
20 that "force would be met with force" was made necessary by an increasing
21 KLA threat that was commensurate with the situation. Colonel Crosland
22 testified that from a military point of view this made sense at
23 transcript 9803.
24 The other paragraph in the OTP --
25 THE INTERPRETER: Could the counsel please slow down a bit for
Page 27127
1 interpretation. Thank you.
2 MR. SEPENUK: Thank you very much.
3 The other paragraph in the OTP brief on the alleged commission of
4 crimes in 1998 is also concerned not with crimes but with the
5 "international community's expressed concern about the level of violence
6 in Kosovo." That's paragraph 788 of the Prosecution's brief.
7 The statement is made in the OTP brief that "Ojdanic was aware of
8 these concerns via HRW reports," paragraph 788. This is another major
9 stretch to the breaking point by the OTP.
10 As evidence of General Ojdanic's awareness, the OTP refers to a
11 letter of 20 July 1998
12 government departments including the VJ. The Trial Chamber may recall
13 that Mr. Fred Abrahams testified about sending this letter. The letter
14 is P544, which is faxed to the VJ, care of the "Kosovo -- Kosovo command
15 Information Service," and which contained general requests for
16 information about VJ forces, some of which pertain to obviously
17 confidential information.
18 The letter was sent during a vacation period, and the recipient,
19 whomever it may have been, was given ten days to reply at a time when the
20 VJ had its hands full in combatting terrorist activities. There's
21 absolutely nothing in this letter, as you will see when you look at it,
22 which supports the OTP claim that General Ojdanic, then the deputy chief
23 of staff, ever received or looked at this letter or was made aware of the
24 letter.
25 Rather than spend more time on this I would simply refer the
Page 27128
1 Trial Chamber to my cross-examination of Mr. Abrahams at pages 892 to 899
2 which I believe gives you perhaps more than you would ever want to know
3 on this subject, which is really of no substance to the case and should
4 not have been mentioned at all by the OTP except as another illustration
5 of the weakness of its case.
6 Another matter that we must mention in the interests of getting
7 it right is the OTP's misleading claim which quotes some comments of
8 General Andjelkovic who was the General Staff's chief of sector for
9 communications and electronic operations.
10 General Andjelkovic states as follows at a collegium of 2
11 February 1999, and this is quoted by the OTP in its brief at paragraph
12 260. The quote says: "If it is true that the subordinates are doing
13 what they shouldn't be doing and sending us reports saying that they did
14 not do it and we have adequate or accurate information that they did not
15 do it -- that they did do it and that nobody has been held responsible, I
16 cannot possibly accept that, and I think that people are right when they
17 raise the question of our competence."
18 The OTP presumably implies by offering this comment of General
19 Andjelkovic that this refers to some failure to report a crime or some
20 other improper similar conduct. What the OTP fails to refer to is the
21 specific explanation of this portion of the collegium given by General
22 Andjelkovic in his trial testimony at 16400-401 where he says, this very
23 quote that we're talking about now, he says, "This was about the too
24 liberal use of mobile phones and hand-held radio sets. We sent out
25 warnings. We warned subordinate units to try to stop this type of
Page 27129
1 equipment from being misused. No one paid any heed, especially the MUP
2 units. That's why I raise the issue. Were we sufficiently competent to
3 issue an order that would put a stop to this sort of practice, that's
4 what it was about."
5 This testimony followed earlier testimony by General Andjelkovic
6 that the KLA was monitoring movements by FRY forces through conversations
7 over mobile phones and hand-held sets. That's TR 16399.
8 So that was the purpose of General Andjelkovic's comments at the
9 collegium. And unless it was just missed by the OTP, it's really
10 difficult to understand why the OTP omitted this explanation from their
11 brief, especially since the OTP gets it wrong again by mentioning the
12 same alleged misreporting in paragraph 835, footnote 2101 of its brief.
13 Now, I'd like to spend a bit more time on the period when
14 General Ojdanic became Chief of the General Staff on 27 November 1998 to
15 the beginning of the war.
16 We know from the evidence that Serbian forces, following their
17 summer offensive against the KLA, had succeeded in recapturing most of
18 the territory previously occupied by the KLA. We're also aware of the
19 considerable body of evidence starting in the fall of 1998 and continuing
20 to the start of the war in March 1999 that terrorist attacks and
21 provocations continued and indeed escalated in violation of the
22 cease-fire and that the KLA occupied the territory it had previously
23 abandoned. So these were the harsh realities facing General Ojdanic when
24 he assumed command of the General Staff on 27 a November 1998. He had to
25 ensure that the VJ fulfilled its responsibilities under the October
Page 27130
1 agreements and at the same time respond to the continuing threat posed by
2 the actions and provocations of the KLA and the threat of bombing and
3 potentially a land invasion by NATO.
4 We say he responded honourably and humanely in matters large and
5 small. Whether it be Podujevo or Racak or his decision not to draft
6 students of military schools and use them in VJ units, all of which and
7 much more we have covered in our brief.
8 Contrary to the arguments of the OTP, we submit that every action
9 taken by General Ojdanic and the General Staff during this period was a
10 legitimate response to KLA threats and provocations and/or the build-up
11 of potential -- and potential threat from NATO forces. Again we've
12 covered this in our brief but I do want to mention a few matters.
13 In its brief, the OTP argues in paragraph 744-747, that
14 General Ojdanic supported the policy of arming non-Albanians.
15 Specifically paragraph 744 states that: "Ojdanic did not reverse but
16 continued the practice of arming non-Albanian civilians despite being
17 informed of the danger they posed."
18 This assertion is entirely erroneous and unsupported by a
19 citation to the evidence in this case. The fact is that there was no
20 further arming of non-Albanian civilians after General Ojdanic took over
21 as chief of staff. Further, the OTP twists a good faith effort of
22 General Ojdanic to include armed Serbs in the wartime establishment. His
23 goal was to bring them into the system so that they could be accounted
24 for instead of operating as freelance soldiers.
25 This issue is discussed in considerable detail in paragraphs 22
Page 27131
1 to 54 of our final brief.
2 On Tuesday Mr. Hannis tried to link the indictment crimes to
3 General Ojdanic by tracing events from General Ojdanic's directive of 16
4 January 1999, known as Grom 3. Mr. Hannis then discussed a number of
5 Joint Command orders and areas of Kosovo where crimes are alleged to have
6 been committed. Judge Bonomy asked whether every event Mr. Hannis
7 described was related to -- to the Grom 3 directive. Mr. Hannis
8 responded that this was his position.
9 We've covered Grom 3 in detail in paragraphs 196 to 203 of our
10 brief. Our position is simple. Grom 3 was an entirely legitimate and
11 necessary measure aimed at the significant threats faced by the -- by the
12 FRY. The Trial Chamber need only look at the words of the directive. It
13 was not aimed at the expulsion of ethnic Albanian civilians or any
14 criminal act. The Prosecution has completely failed to relate Grom 3 to
15 the alleged JCE or anything illegal. Indeed, the parts of Grom 3 which
16 Mr. Hannis seemed to be concerned about, the plan to destroy terrorist
17 forces also appear in General Perisic's directive from the previous
18 summer. In the event of an attack from NATO, the VJ had to defend the
19 country and fight a war on two fronts. This has nothing to do with the
20 expulsion of civilians.
21 Similarly with regard to General Ojdanic's directive of 9 April
22 1999, this had nothing to do with the expulsion of Albanian civilians.
23 Quite the opposite. At the end of our -- of his submissions, Mr. Hannis
24 requested that the Trial Chamber look at events chronologically to
25 understand orders by what else was happening at the time.
Page 27132
1 We agree, and I refer later to the collegium of the same day when
2 General -- where General Ojdanic emphasises that refugees should be
3 allowed to return to their homes. I also refer later on, a bit later on,
4 to General Ojdanic's announcement of two days beforehand on April 7,
5 1999, that Albanians should return to their homes and work together for
6 peace.
7 The Prosecution next claims an alleged bad faith VJ troop
8 build-up in 1999.
9 The threat to the sovereignty of the FRY by the KLA was severe
10 and has been well documented in this case. Bislim Zyrapi, the KLA chief
11 of staff at the relevant time, testified that in March 1999 the KLA was
12 17.000, 18.000 members strong and controlled a significant part of the
13 territory of Kosovo. Leaving aside the ruthless tactics of this
14 terrorist organisation the KLA of course represented a legitimate
15 military target. Moreover, while the VJ complied with the October
16 agreements, the KLA reoccupied positions previously withdrawn from as
17 they became "more opportunistic," according to General DZ and a host of
18 other witnesses as we've set forth in our brief. By the way, that "more
19 opportunistic" comment of General DZ is at P2508, paragraph 189.
20 While the threat from the KLA was extremely credible, the
21 potential for a NATO land invasion and/or bombing campaign weighed
22 heavily on the minds of the VJ General Staff. In the collegium at 18
23 February 1999, in response to the fact that NATO would be increasing
24 troops in Macedonia
25 the country if we are attacked. Politics and diplomacy will do
Page 27133
1 everything to resolve by peaceful means if possible." P937, page 16.
2 The following month on 11 March General Ojdanic addressed an
3 argument he expected to see from the West in regards to lack of
4 compliance with the October agreements. General Ojdanic said that the
5 OSCE knew full well, while the VJ had deployed more troops in the area.
6 He explained that, "NATO is getting 9.500 people on board down there. We
7 don't know whether they will use them to invade, but we can't sit here
8 and be unprepared." P935, page 1.
9 In addition, there was credible information that pointed to a
10 collective effort on behalf of the KLA and NATO. This included but was
11 not limited to the KLA being supplied with weapons by NATO, Exhibit
12 3D1035, paragraph 2.1, and terrorist forces being trained by NATO,
13 Exhibit 3D584, page 2. The Trial Chamber will also recall the testimony
14 of General Dimitrijevic in this regard. It's also noteworthy that
15 Prosecution witness John Crosland testified that the international
16 community had a regime change in mind for Kosovo and that the KLA was a
17 tool to facilitate this change, as Mr. O'Sullivan reminded us yesterday,
18 and that's at TR9865-66, Exhibit 3D510, paragraph 25.
19 Further discussion on this alleged bad faith build-up of troops
20 by the VJ is addressed in paragraphs 85 to 97 of our final brief.
21 One further matter I'd like to mention during this period
22 preceding the war is the testimony of General Dimitrijevic. This
23 primarily concerns whether General Ojdanic was receiving accurate reports
24 from the 3rd Army and Pristina Corps subordinates on whether provocations
25 in violation of the cease-fire came from the KLA or whether these
Page 27134
1 provocations were initiated by Serb forces. The only two specific
2 incidents mentioned by Dimitrijevic both in the collegium and here at the
3 trial are Podujevo and Racak. As to Podujevo, General Dimitrijevic
4 testified that, after a general staff investigation this was indeed a
5 legitimate training exercise, and as to Racak, General Dimitrijevic
6 further testified that the army was not involved and that General Ojdanic
7 insisted on knowing the truth about these events. No other specific
8 incident was mentioned by Dimitrijevic and there is no basis in the
9 evidence to conclude that action by Serb forces were any different than
10 the legitimate actions revealed by both Podujevo and Racak.
11 In any event, General Curcin answered General Dimitrijevic's
12 question on this issue during the collegium by stating that his reports
13 to the General Staff accurately reflected the subordinate reports. The
14 testimony of General Obradovic of the General Staff is also pertinent
15 here. That's at 15107. And there was a question on cross-examination by
16 Mr. Stamp, and the question was to General Obradovic, "There again we see
17 General Dimitrijevic suggesting that the reports coming from the Pristina
18 Corps were not necessarily accurate about the activities of the corps.
19 Is that a correct conclusion, that the security chief of the VJ was
20 saying that these Pristina Corps reports are not necessarily accurate
21 about the activities of the Pristina Corps?"
22 And the answer was: "The thesis advocated here by General
23 Dimitrijevic, as you can see he received this information from some
24 sources in the West," and a brief interjection here. You'll recall the
25 testimony of both Colonel Crosland and General Dimitrijevic that they
Page 27135
1 would meet frequently. That was clearly established by the evidence. So
2 going on with General Obradovic's answer: "He received this information
3 from some sources in the West. So this thesis is very present in the
4 West, that the MUP and the army are conducting mopping up operations.
5 That's the theory. And it's a fact that the Chief of the General Staff
6 and the collegium as a whole insisted on knowing the full truth of the
7 situation in the units."
8 So what General Dimitrijevic is saying is nothing new. "It's not
9 that we didn't want or didn't know. There was no reason for us not to
10 trust the subordinate commanders and the subordinate commands. We had no
11 reason to doubt each and every piece of information we received. We had
12 no reason to think it was unreliable."
13 Moreover, as we've stated in our brief, General Ojdanic, as well
14 as General Curcin and others took steps during the collegiums involved to
15 heed the admonitions of General Dimitrijevic by continuing to closely
16 monitor the accuracy of reports and issuing orders to make sure this
17 happened.
18 General Ojdanic further stated in the relevant collegium that he
19 would speak to the 3rd Army commander about this issue, and as General
20 Dimitrijevic testified, when General Ojdanic said he intended to
21 accomplish a task, he followed through on it.
22 Indeed the lack of any improper intent on the part of
23 General Ojdanic was testified to by General Dimitrijevic himself, who
24 stated that General Ojdanic was "angry" when he received inaccurate
25 information and that he sincerely wanted to determine the truth and do
Page 27136
1 the right thing. And the only person who really raised the reporting
2 issue, General Dimitrijevic, was as categorical as the other members of
3 the General Staff in testifying that no plan to deport Kosovar Albanians
4 ever existed. And I'd like to use General Dimitrijevic's denial of any
5 plan to expel Kosovar Albanians as a transition to an ultimate question
6 in this case, which is why the refugees left Kosovo.
7 As we explain in our brief at pages 125 to 128, and as discussed
8 in the briefs of the other defendants, there are a number of possible
9 explanations based on the evidence. One, the fact and the threat of NATO
10 bombing. Two, both the fact and the prospect of combat between Serb
11 forces and the KLA. Three, action by the KLA to move civilians to create
12 a humanitarian crisis and to further use civilians as a shield against
13 Serb forces. And four, individuals acting from hatred, revenge, or some
14 other ignoble motive.
15 There's evidence in the case as set forth in various Defence
16 briefs to support each of these four different causes I have mentioned.
17 Specifically as to General Ojdanic, it's clear that he believed, along
18 with the General Staff, that it was the KLA and not Serb forces who were
19 causing the movement of ethnic Albanians from Kosovo. As early as 4
20 March 1999, prior to the war, General Dimitrijevic specifically reported
21 to the collegiums that intelligence was received -- did I say General
22 Dimitrijevic or General Ojdanic? It was General Dimitrijevic who
23 reported to the collegiums that intelligence was received that very
24 organised activities of the KLA were moving civilians from individual
25 villages to bring the humanitarian crisis to the fore again and provoke a
Page 27137
1 reaction from the international community. That's P933, page 9.
2 The discussion at the collegium of 9 April 1999 is particularly
3 important to understand what General Ojdanic knew about the movement of
4 the population from Kosovo. General Krga, in charge of the intelligence
5 division, described the movement as "the planned withdrawal of the
6 so-called Kosovo Liberation Army and the Siptar people from Kosovo and
7 Metohija, which has realistically created a difficult humanitarian
8 situation." Exhibit P929, page 5.
9 Colonel Gajic of the security administration said at the same
10 collegium that "After crushing the terrorist forces of -- in Kosovo, some
11 of them managed, probably in a planned way, to withdraw to Albania,
12 Macedonia
13 will force Albanian and non-Albanian citizens to move out of Kosovo. He
14 goes on to say that "The enemy will conduct planned activity to push out
15 Siptars in order to accuse the army and the state of ethnic cleansing and
16 genocide, thereby creating more favourable grounds for operation by NATO
17 against our forces." That's Exhibit P929, pages 8 to 11.
18 In fact, the discussion at the collegium shows that the staff of
19 the Supreme Command was worried about a ground attack from terrorists
20 mingled with the 400.000 refugees. They proposed announcing publicly
21 that unarmed people and refugees "cannot be played with," and refugees
22 should be allowed to return to their homes. That's at P929, pages 33 and
23 34 of the 9 April 1999
24 That same day, 9 April, General Ojdanic issued a directive which
25 indicated that the army expected infiltration by the KLA on the pretext
Page 27138
1 of securing the return of the refugees, that reception of the refugees on
2 the state border should be organised, that the army should offer
3 assistance to other organs of government for the further care of
4 refugees, that infiltration of the returning refugees by the KLA should
5 be prevented, and that the enemy should be treated in accordance with
6 international humanitarian law. That's P1281.
7 Thus it's clear that as of 9 April 1999, at the level of the
8 staff of the Supreme Command, the displacement of the refugees was
9 believed to have been a KLA tactic to stimulate international support,
10 that it was seen as against the interests of the army and that the return
11 of the refugees was not only contemplated but was to be facilitated.
12 This is hardly consistent with a joint criminal enterprise to deport
13 Kosovo Albanians.
14 Equally inconsistent with such an alleged plan is the
15 announcement made by General Ojdanic on 7 April 1999, the day of the
16 Serbian unilateral cease-fire, encouraging refugees to return to their
17 homes, that announcement set forth in paragraph 263I of our brief. It's
18 noteworthy in his 98 bis argument Mr. Hannis stated concerning the
19 movement of refugees, and this at 12594, Mr. Hannis said, "We're not
20 saying that some of these people didn't leave because of the bombing.
21 We're not saying that some of these people didn't leave their villages
22 because they were told to do so by the KLA in some instances, but we're
23 saying there is evidence upon which you could, as a reasonable trier of
24 fact, find beyond a reasonable doubt that they left because of the
25 violent actions and the force of Serb police and VJ."
Page 27139
1 Let's assume for a moment with Mr. Hannis that the refugee flight
2 was at least due in part to the action of Serb forces. The Prosecution's
3 burden here of course is to further show that these expulsions were the
4 result of a plan, a joint criminal enterprise to change the ethnic
5 balance in Kosovo, and there's nothing in this pre-war conduct of
6 General Ojdanic, we submit, that gives any indication whatever of an
7 intent to join a criminal enterprise to expel Kosovar Albanians.
8 General Ojdanic knew at least as early as 1997, as his comments
9 at the collegium reveal, that the shortest and fastest way to lose Kosovo
10 was by war. As he said in the collegium of 29 June 1998, P927, "I
11 personally still see diplomacy and politics as the only the way out, and
12 I am firmly convinced of that as a soldier. It is utopia for anyone to
13 think that the world will allow us to solve the problems of Kosovo and
14 Metohija by force."
15 And along these same lines in the collegium of 10 April 1998,
16 when he was the deputy chief of staff, General Ojdanic made these very
17 thoughtful, insightful and remarkably prescient comments, that's at
18 3D657, page 1 and 2, and if the usher would please put that slide up.
19 Showing that even old guys can make one concession to the twenty-first
20 century. We can use this kind of stuff too. It will be the only example
21 we will have in the case. Mr. Visnjic had to teach me how to use it.
22 And in looking at these, what we are -- these are very
23 significant comments in our view, and I would ask you to consider these
24 comments in the context of Judge Bonomy's question to Ms. Kravetz on
25 Tuesday. Did they seriously think they could defeat NATO and clear the
Page 27140
1 country of Albanians? Are the words that we're going to look at now
2 really the words of a person who had in mind going to war and expelling
3 Kosovar Albanians under the cover of NATO bombing? Are these words that
4 follow now the words of General Ojdanic someone who feels that way, that
5 they want to use war as an instrument of policy to effectuate a joint
6 criminal enterprise? And here are the words of General Ojdanic:
7 "General, sir, I will not -- I, General, sir, will not go into
8 international community politics. I will give an assessment from my
9 point of view, and that is what the FRY/Federal Republic of Yugoslavia
10 will not preserve Kosovo by fighting a war. We must look for political
11 and diplomatic solutions. Otherwise, we shall, both as a people and as a
12 state, dive headfirst into calamity.
13 "I would like to present a possible minor subvariant of the
14 possible developments in Kosovo corresponding to the need of our
15 engagement. I think that in the future the Albanians shall continue
16 applying pressure through terrorist activities because that has yielded
17 results so far. Such activities will gradually increase, the aim being
18 for them to become so strong that they cannot objectively be opposed by
19 the MUP/Ministry of the Interior forces as the only competent and
20 internationally recognised force for confronting terrorist groups.
21 "Such I would say an imposed situation would in my opinion be
22 perfidious and its goal would be to force the FRY/Federal Republic of
23 Yugoslavia
24 groups. Such a decision of the FRY would give the Albanians the right
25 to ..."
Page 27141
1 Something happened on my screen. This is why we don't use that
2 technology.
3 JUDGE BONOMY: That's the problem when old guys use technology,
4 Mr. Sepenuk.
5 MR. SEPENUK: "Such a decision of the FRY would give the
6 Albanians the right to oppose the VJ and the MUP forces with all their
7 might. Practically speaking, while this would constitute an armed
8 insurrection from our point of view, it would not constitute one in the
9 eyes of the international community. This way, they would all but
10 legalise the armed rebellion.
11 "I am convinced that should we engage in such activity, the
12 international community will not quietly stand aside and watch but will
13 do everything to protect the Albanians in order to address all this at
14 the roundtable, in spite of everything we will have to go through and
15 survive. As far as the Yugoslav army is concerned, General, I think that
16 a decision to engage the Yugoslav army to fight against the terrorist
17 groups would be a big and a difficult one. We know how many of them
18 there are and how strong they are, and we also know which tactics need to
19 be applied to destroy them and the size of the forces needed to truly
20 destroy them. Involving the Yugoslav army on the destruction -- in the
21 destruction of the terrorist groups would practically condemn it. That
22 would mean war."
23 Again, comments made on 10 April 1998 when General Ojdanic was
24 the deputy chief of staff.
25 JUDGE BONOMY: How do these comments fit with what actually
Page 27142
1 happened in the summer of 1998?
2 MR. SEPENUK: Well, what happened, Your Honour, is that -- that's
3 why I think this is such a prescient comment on the part of
4 General Ojdanic because the KLA activities were increasing because they
5 essentially had reoccupied all of the areas starting with the
6 General Perisic directive of July 1998, it was felt necessary that there
7 had to be some use of the VJ. Again, General Ojdanic saw this as a
8 potential disaster, but because the MUP could not handle it on their own
9 the VJ had to be brought in to take care of the situation. Even
10 Colonel Crosland admitted that. And the continual escalation by the --
11 by the KLA is what caused the continuing revving up of this operation.
12 That's why I say it was such a prescient comment.
13 I mean, here was July of -- here he's making these comments in
14 April of 1998, and everything he said came true. Very prophetic
15 comments. Knowing therefore that a war over Kosovo was futile and
16 unwinnable, General Ojdanic did his very best to make sure that war never
17 happened as indicated by his continual anti-war comments in the
18 collegiums, his belief in the limited and restrained use of the army,
19 lest [Realtime transcript read in error "less"] it lead to war and his
20 cooperation with the KVM, lest [Realtime transcript read in error "less"]
21 non-cooperation would lead to NATO bombing and war.
22 And it's our further submission that the evidence of
23 General Ojdanic's pre-war conduct was geared solely to dealing with the
24 dual threats of the KLA and NATO, whether the issue was the arming of
25 civilians, the promulgation of war plans, or the troop build-up in the
Page 27143
1 spring of 1999. At the least, General Ojdanic's conduct throughout the
2 pre-war period is consistent with innocence. The Prosecution's
3 conclusion that General Ojdanic joined a criminal enterprise to deport
4 Kosovar Albanians is not the only reasonable conclusion available from
5 the evidence.
6 Now, we spent the first 100 pages --
7 MR. O'SULLIVAN: Excuse me, Your Honour. There's several times
8 Mr. Sepenuk has used the word "lest" and it appears in the transcript
9 repeatedly as "less." I'm looking at page 24, lines 11 through 13. And
10 a couple of times now his use of the word "lest" has come across as
11 "less" and it does change the meaning of the sentence.
12 JUDGE BONOMY: Give me an example. Sorry. Page 24.
13 MR. O'SULLIVAN: 24 between lines 11 and 13 he used the worth
14 "lest" twice and it's recorded as "less" and it could be quite confusing
15 when you go back to read what he actually said.
16 JUDGE BONOMY: I'm sure that will be corrected when the
17 transcript is reviewed.
18 MR. VISNJIC: [Interpretation] Your Honour, also page 1, line 14,
19 same problem.
20 JUDGE BONOMY: Thank you. Please continue, Mr. Sepenuk.
21 MR. SEPENUK: Thank you, Your Honour. We've spent the first 100
22 pages of our brief discussing the OTP's lack of circumstantial evidence
23 to prove that there was any plan to expel the Kosovar Albanians both
24 before the war and during the war. As set forth in our brief, every
25 member of the General Staff who testified at this trial categorically
Page 27144
1 denied that such a plan ever existed. The best Mr. Hannis could do is to
2 suggest in his oral argument yesterday that all these officers had a
3 motive to lie or kept in the dark about the plan.
4 Your Honours of course are the ultimate judges of a witness's
5 credibility and we presumably won't know your views on this until a
6 judgement is entered. As an aside, however, and for what it's worth, and
7 I hope it's worth something, I note that the only officer of the General
8 Staff whose credibility was seriously questioned at all as I recall was
9 not by the OTP but, rather, by Judge Bonomy, and I refer the Trial
10 Chamber to Judge Bonomy's colloquy with General Obradovic, the assistant
11 Chief of Operations to the General Staff that took place on 6 September
12 2007, transcript 15162 to 165. There is no time to cite this quite
13 lengthy colloquy except to say that there was mounting frustration on
14 Judge Bonomy's part because General Obradovic, in the view of
15 Judge Bonomy, was repeatedly avoiding answering Judge Bonomy's questions.
16 This matter was resolved by the fortunate intervention of Judge Kamenova
17 at transcript 15164. The transcript simply says: "Trial Chamber
18 confers."
19 Mr. Visnjic and I well remember Judge Bonomy's conferring with
20 Judge Kamenova as if it was yesterday because we, Mr. Visnjic and I, were
21 also frustrated by what appeared to be, what appeared to be General
22 Obradovic's refusal to give a straight answer to Judge Bonomy's question.
23 Judge Kamenova, who understands the Serbian language, no doubt informed
24 Judge Bonomy that it was an error in translation of a document that was
25 creating the difficulty, and there was the English, there was the
Page 27145
1 Serbian, and it just so happened that none of my distinguished Serbian
2 colleagues caught this error, but Judge Kamenova did. And I note this
3 incident, I have to say I'm noting this incident not only to show the
4 lack of any cross-examination by Mr. Hannis and Mr. Stamp trying to show
5 that these -- all these officers lied or were kept in the dark about a
6 plan. There was none of that in this case. But I note this incident
7 also to show how easy it is to get it wrong. Had Judge Kamenova not
8 interjected at that point I think it would have been fair to say that you
9 could -- because you were ready to go on to other subject. You were
10 quite frustrated, as we were, Your Honour, with the witness's answer.
11 Judge Kamenova said, no, it's just a mistake of translation, no problem
12 here. And Your Honour Judge Bonomy, you eventually agreed with that.
13 But I cite it to show how easy it is again to get a wrong, that we'd
14 better pause before we jump to conclusions, as the OTP has done in this
15 case continually and repeatedly in its judgements, its erroneous
16 judgements about General Ojdanic.
17 In any event, as I stated, every member of the General Staff who
18 testified at this trial categorically denied that a plan to deport
19 Kosovar Albanians ever existed, nor was such a plan revealed by the
20 numerous documents that the Ojdanic Defence has presented here. Not
21 selectively but virtually in their entirety, including the collegiums of
22 the General Staff, the General Staff daily briefings, 3rd Army combat
23 reports, Supreme Staff, command staff combat reports and the security
24 administration reports, all of which are attached as annexes in our
25 brief.
Page 27146
1 There's simply no evidence from any witness or document that
2 General Ojdanic ever agreed to, had knowledge of or participated in or
3 aided and abetted any criminal enterprise or operation which had as its
4 objective the expulsion of Albanians from Kosovo. The Prosecution has
5 not proven its case against General Ojdanic for individual responsibility
6 under Article 7(1) of the statute, and we submit he should be acquitted
7 of these charges.
8 Before discussing the question of General Ojdanic's command
9 responsibility, I want to briefly reply to Mr. Stamp's comments about
10 Dr. Ball and Dr. Fruits. I heard a critique of Dr. Fruits' alleged lack
11 of expertise but nothing about Dr. Ball's built-in bias and lack of
12 objectivity, no better shown than by his comments to the "Cult of the
13 Dead Cow" activist group at their convention in Las Vegas when he said
14 "it would be very nice if we had a round of applause for the extradition
15 of Slobodan Milosevic to The Hague
16 I hope you're all as excited as I am by the prospect of his very pleasant
17 and drawn-out trial which will begin in about six months." That's at
18 transcript 10273.
19 Dr. Ball conceded that he had no data in his report on the
20 activities of Serb forces. That fact alone, according to Dr. Fruits,
21 eliminated the possibility of concluding from a statistical standpoint
22 that Serb forces were responsible for migrations and deaths in Kosovo.
23 I've heard nothing from the Prosecution to counter this testimony from
24 Dr. Fruits.
25 As Dr. Fruits also testified, there were flaws in the data
Page 27147
1 concerning KLA attacks and NATO air-strikes. For example, Dr. Fruits
2 noted that there were at least ten NATO air-strikes on 3, 4 April 1999
3 whereas Dr. Ball's data indicated only two NATO air-strikes on those
4 dates. Dr. Fruits' data highlighted six days where air-strikes occurred,
5 whereas Dr. Ball's data records no air-strikes. I've heard nothing from
6 the Prosecution to counter this testimony of Dr. Fruits.
7 Mr. Stamp also criticises Dr. Fruits for failing to use his data
8 to run further statistical tests. Dr. Fruits was retained jointly by the
9 Defence to show that Dr. Ball's report lacked statistical credibility.
10 In our view he has done precisely that. It was not Dr. Fruits's role to
11 attempt to resuscitate the OTP case. When asked that same question at
12 the trial about doing further statistical steps, Dr. Fruits replied, and
13 this is at 26021, he said:
14 "A. Well, the main reason I didn't do it was because it wasn't
15 my assignment. Another reason is that his data was incorrect, and a
16 third reason is that Dr. Ball et al did not provide sufficient detail of
17 what data they used to produce figure 2 for me to actually perform that
18 analysis."
19 And we'd also refer the Trial Chamber to section 11.1 of
20 Dr. Fruits' report, 3D893 on this point.
21 The Prosecution's criticisms of Dr. Fruits are misplaced. His
22 evidence demonstrates that Dr. Ball's evidence is unreliable and
23 inappropriate in a criminal trial such as this.
24 I'd like to turn now from the pre-war setting to discuss
25 General Ojdanic's wartime conduct and his command responsibility as VJ
Page 27148
1 chief of staff during the 78 days of war.
2 Before analysing the command responsibility of General Ojdanic in
3 regards to VJ forces, it's our submission that MUP forces were not
4 subordinated to the VJ during the war in Kosovo. This is effectively
5 conceded by the Prosecution in its final brief as they do not indicate at
6 any point that subordination occurred. Instead, the OTP adopts a new
7 position stating that, this is in paragraph 246, "Once the state of war
8 was declared on 24 March 1999
9 subordination to the VJ for combat operations. Rather, MUP units engaged
10 in joint combat actions on the basis of Joint Command decisions." That
11 General Ojdanic did not have effective control of the MUP is covered very
12 extensively in our brief at paragraphs 454 to 478.
13 This lack of effective control of the MUP also holds true for any
14 crimes that may have been committed by paramilitaries in Kosovo since
15 paramilitaries were not subordinated to VJ forces. While the OTP in
16 paragraph 110 of its brief states that "MUP units were supplemented with
17 paramilitary formations," notably absent is any indication of a link
18 between paramilitary forces and the VJ.
19 It should also be noted that information relating to any specific
20 crimes which are alleged to have been committed by MUP forces did not
21 reach General Ojdanic or the General Staff. Any MUP crimes which may
22 have occurred were required to be reported up the Ministry of Interior
23 chain of command which represented an entirely independent reporting
24 system to that of the VJ.
25 In his military expert report, 3D1116 at paragraph 134, page 121,
Page 27149
1 General Radinovic states that following his examination of all relevant
2 documentary evidence, no MUP war crimes were ever reported to the VJ
3 General Staff.
4 The letter allegedly sent by General Pavkovic to the General
5 Staff on 25 May 1999
6 forces, was never received by General Ojdanic or any member of the
7 General Staff. Further details concerning the authenticity of this
8 letter, P1459, is contained in paragraphs 242 to 249 of our final brief.
9 THE INTERPRETER: Could counsel kindly slow down, please. Thank
10 you.
11 MR. SEPENUK: Yes, thank you. I've been told I've been speaking
12 too quickly. I apologise and I will slow down accordingly.
13 Now returning to the matter of General Ojdanic's command
14 responsibility over VJ forces. The threshold question that must be
15 satisfied is the establishment of a superior-subordinate relationship.
16 The minimum requirement for recognition of the superior-subordinate
17 relationship is the superior's ability to exercise effective control over
18 the subordinates, meaning "the material ability to prevent or punish" the
19 subordinates' offences. It is axiomatic, therefore, that General Ojdanic
20 would not have had the material ability to prevent or punish criminal
21 conduct of which he was not aware.
22 What is the evidence that General Ojdanic knew of the commission
23 of any of the specific crimes charged in the indictment, and the answer
24 is none.
25 You heard from General Vasiljevic that it was the regular
Page 27150
1 practice for brigades to submit daily combat reports to the Pristina
2 Corps command. The corps command condensed the information into a single
3 report which was forwarded to the 3rd Army. The 3rd Army would condense
4 the reports from the corps and send it on to the Supreme Command Staff.
5 There's no evidence that any of the crimes charged in the indictment were
6 included in any of the daily reports received by General Ojdanic or the
7 Supreme Command Staff.
8 There is no evidence that any of the crimes, nor is there any
9 testimony -- I got a little bit confused there. I apologise. Nor is
10 there any testimony from anyone that they had brought any of the specific
11 crimes listed in the indictment to General Ojdanic's attention. This is
12 confirmed by the military expert General Radinovic who stated in his
13 report that the 3rd Army combat reports contain no data about a single
14 crime alleged in the indictment. That's 3D1116, paragraph 330, page 202.
15 Of course the fact that General Ojdanic did not receive reports
16 of any crimes listed in the indictment does not end our inquiry.
17 General Ojdanic could still be held liable under Article 7(3) if he knew
18 or had reason to know that a crime was about to be or had been committed
19 by a subordinate and he failed to take necessary and reasonable measures
20 to prevent the crime or punish the perpetrator.
21 I'll turn first to the OTP's claim that General Ojdanic knew or
22 had reason to know that a crime was about to be or had been committed by
23 a subordinate, and here I'm going to do the same thing pretty much that
24 Mr. Fila was talking about yesterday, paragraph by paragraph. It's going
25 to take a bit of time, but the OTP has it so wrong in its brief that
Page 27151
1 there's no way we can -- we can pass it by. We have to let the Court
2 know all of these facts.
3 The OTP's first claim in this regard is that "Ojdanic was aware
4 that thousands of Kosovo Albanians were being forcibly expelled from
5 Kosovo." That's at paragraph 791. Of course the important phrase here
6 is "forcibly expelled," and there is nothing in the bullet points offered
7 by the OTP which points to any such knowledge of General Ojdanic.
8 In its brief the OTP refers to a Supreme Command Staff briefing
9 of 3 April 1999
10 are about 500.000 refugees," and suggested that refugee check-points be
11 set up. In response states the OTP brief at paragraph 791, "Ojdanic
12 simply said prepare denials on refugees." Leaving the totally erroneous
13 impression that General Ojdanic was cavalierly denying the existence of a
14 refugee problem. Another instance where the OTP tells only a misleading
15 snippet of the story which I'll now explain.
16 The Supreme Command Staff briefing referred to by the OTP took
17 place on 3 April 1999
18 before that at 2000 hours General Krga had submitted an intelligence
19 briefing to the General Staff, 3D911, which reported that an American
20 representative had stated that a protectorate "should be established
21 along the border with Albania
22 to the area." 3D911 page 1.
23 General Krga's intelligence report went on to say that "The
24 necessity of establishing a protectorate in Kosovo-Metohija is also being
25 mentioned more and more often in the Western media in the context of the
Page 27152
1 return of refugees and the necessity of their protection." 3D911 page 1.
2 Krga's report concluded with the proposal that "In order to avoid
3 being demonised in the media, I propose that our border organs organise
4 points for the reception of Siptar refugees who are returning to Kosovo
5 Metohija and this should be reported in the media."
6 It was in this context that General Ojdanic's statement "prepare
7 denial on refugees" was issued. This statement followed General Krga's
8 proposal at the General Staff briefing that "refugee check-points be set
9 up" to monitor the return of refugees without external assistance.
10 On this issue the OTP also inexplicably fails to refer to the
11 testimony of Colonel Milovan Novakovic who was a member of the General
12 Staff in charge of information and morale to whose office General Ojdanic
13 referred this task concerning "prepare denial on refugees," as stated in
14 the briefing at 3D721, item 2.
15 In answering a specific question from Mr. Hannis on the phrase
16 used by General Ojdanic, Colonel Novakovic testified: "We were not
17 denying the fact that there were Albania
18 16269, 70.
19 Colonel Novakovic went on to say that the General Staff was
20 concerned at the varying and inflated numbers being publicised by NATO.
21 As Colonel Novakovic testified, "That is why we thought and that is why
22 it was up to the position of the collegium that somebody should speak up
23 and say what the truth would be in approximate terms in terms of actual
24 figures."
25 There's no question that General Ojdanic and the General Staff
Page 27153
1 continually acknowledged the importance and significance of the refugee
2 problem. Indeed the OTP itself refers to a Supreme Command Staff
3 briefing on 12 May 1999
4 refugees was being stressed in all conferences." That appears at
5 paragraph 791 of the OTP brief.
6 Again --
7 JUDGE BONOMY: Mr. Sepenuk, is there any evidence of -- of what
8 was said or issued in response to the instruction "prepare denial on
9 refugees"?
10 MR. SEPENUK: I don't believe so, Your Honour. I wish there was
11 but I do not believe so.
12 Again on the subject of General Ojdanic's alleged knowledge of
13 forceable expulsion of refugees, the OTP in paragraph 791 states: "A
14 Pristina Corps combat report dated 31 March 1999 states that the MUP and
15 the VTOs were channelling Siptar refugees to the Republic of Albania
16 In support of this claim, the OTP simply refers to Exhibit P2930,
17 item 4, a Pristina Corps command group report which states that "Siptar
18 refugees" are being channelled to the Republic of Albania
19 What the OTP fails to mention is that this report was sent from
20 the Pristina Corps command group to the Pristina Corps operations centre.
21 It was not routed to the General staff, and therefore General Ojdanic
22 never saw it. So much for the question of his knowledge. However, even
23 if he had seen this document at the relevant time, it would not have been
24 alarming. The reason that these refugees were "channelled" was to ensure
25 only one thing, their safety. Goran Jevtovic, the VJ member who drafted
Page 27154
1 the report in question, that's Exhibit P2930, states that this particular
2 area was ringed by mines and obstacles along with units in combat
3 disposition, and it was necessary for the safety of the civilians to
4 channel or direct them in safe directions. That's 5D1385, paragraph 22.
5 This protection of the welfare of civilians where there were
6 mines in the area is corroborated by the testimony of Delic 19306-7, and
7 Halimi 4492. In short, as further evidence of the weakness of their
8 case, the OTP has improperly taken this snippet, this little bit of a
9 report out of the context of a true situation to impute to
10 General Ojdanic a knowledge he never had.
11 Having failed to establish General Ojdanic's knowledge that
12 Kosovar Albanians were being forcibly expelled, the OTP turns to its next
13 allegation that "Ojdanic was aware of other crimes against Kosovo
14 Albanians." That's paragraph 792.
15 The OTP then sets forth some eight examples concerning
16 General Ojdanic's knowledge of crimes and concludes in paragraph 793 that
17 despite his awareness of these crimes Ojdanic "took no concrete action."
18 We'll examine each of these eight incidents in turn to show that
19 they are both baseless and misleading.
20 The OTP first claims that on -- that "on 3 April 1999, during a
21 Supreme Court staff briefing, Krga reported problems with looting and
22 that 32 volunteers of the 175th Infantry Brigade had been sent back." In
23 fact, it was Colonel Gajic who made this report, not Krga. As noted by
24 this exhibit 3D721, those volunteers were sent back from Kosovo. In this
25 same General Staff briefing of 3 April 1999, General Ojdanic responds to
Page 27155
1 this incident of looting by volunteers by stating, "The command of the
2 3rd Army is to explain why these 32 were together and not in the units."
3 That's 3D721, page 2.
4 Dividing the volunteers and not allowing them to serve in the VJ
5 as a group would have been in compliance with General Ojdanic's orders
6 regarding the admission of volunteers as more fully explained in our
7 brief at paragraphs 269 to 271.
8 In addition, the Gajic testimony cited but not explained by the
9 OTP, 15332-33 --
10 THE INTERPRETER: Could counsel slow down once again, please,
11 thank you.
12 MR. SEPENUK: I hope this is the last time I've been warned about
13 slowing down. I'll really try to keep it very measured. I apologise for
14 that.
15 In any event, the Gajic testimony confirms that these men who
16 committed crimes were arrested and convicted while the remainder of --
17 while the remainder of the unit was removed from Kosovo-Metohija. So
18 much for the baseless and rather startling OTP claim in paragraph 793
19 that "Ojdanic took no concrete action."
20 The next example cited by the OTP is that, "On 5 April 1999,
21 during the supreme -- the SC staff briefing, Colonel Gajic reported that
22 "bands stealing from the local population had appeared in Kosovo." This
23 is by no means a specific allegation that could realistically be
24 processed or prosecuted. Further, the word "bands" does not indicate
25 that this was VJ forces, MUP, paramilitaries or rogue civilians acting on
Page 27156
1 their own, aside from the fact that a military justice system had been
2 established by General Ojdanic and the VJ for the arrest of any crime
3 perpetrators.
4 The next OTP claim is that, "In April 1999, security organs of
5 the Pristina Corps received a report from the MUP on the execution of 20
6 civilians in Mali Alas in April 1999, allegedly by the 252nd Armoured
7 Brigade. The chief of the security of the Pristina Corps reported this
8 to Vasiljevic."
9 What the OTP fails to mention is that Vasiljevic did not find out
10 about the murder of these civilians until early May 1999 when he was in
11 Kosovo, as his statement makes clear. Neither Vasiljevic nor Ojdanic
12 knew about this at the time.
13 Also not mentioned by the OTP is that this case was transferred
14 to a civilian court. This is explained in the testimony -- in the
15 testimony of the witness Mladenovic who stated that following an
16 investigation by the military prosecutor it was determined that no
17 military personnel had been involved in the murders but, rather,
18 civilians from that area. 21260-261.
19 The next OTP claim is that "On 18 April 1999, during the Supreme
20 Command staff briefing Gajic reported a rape case from the 52nd Air
21 Defence Artillery and Rocket Brigade and looting in the Djakovica area."
22 This precise case is dealt with in paragraph 261 of our brief,
23 and the short of it is that the soldiers committing the rape were
24 identified, arrested, a criminal report was filed, and as far as Colonel
25 Gajic knew, the perpetrators were convicted and sentenced to prison. So
Page 27157
1 much again for the OTP claim that General Ojdanic took no concrete action
2 as --
3 JUDGE BONOMY: On this occasion, though, that's recognised in the
4 OTP brief. The footnote makes it sure that there was a prosecution.
5 MR. SEPENUK: Yeah, but it's -- I'm glad it was clear to Your
6 Honour, I am, but the way it was presented by the OTP, quite frankly,
7 Your Honour, I didn't think it was that clear. It was footnoted. I
8 think it should have been in the text.
9 The next OTP claim is that "On 26 April 1999, or thereabouts, the
10 Supreme Command Staff received a Pristina Corps request for the
11 engagement of a forensic pathologist to exhume bodies buried in graves in
12 Kosovo. Lazarevic reported that "There are indications that members of
13 the army are responsible."
14 All we can say to this is that a forensic examiner being sent to
15 exhume bodies necessarily negates the idea of some plot to cover up the
16 deaths. This was a good faith effort of the VJ to determine if members
17 of the army were in fact responsible.
18 The next OTP claim is as follows: "In early May 1999, the VJ
19 security administration was informed that crimes were being committed in
20 Kosovo and that volunteer groups were present there. Farkas inspected
21 the security organs in Kosovo between 5-6 May 1999, and upon returning
22 reported to Ojdanic that crimes were being committed in Kosovo and were
23 not reported up to the Supreme Command Staff. There were rapes, looting,
24 and theft."
25 Of course what the OTP fails to mention is that Farkas was sent
Page 27158
1 to Kosovo by General Ojdanic in early May specifically to investigate
2 problems of which he had just become aware. The evidence is clear that
3 General Ojdanic reacted strongly upon hearing that crimes were not being
4 reported and proactive measures were taken to uncover further crimes
5 during the next few weeks including meetings with General Pavkovic,
6 President Milosevic and others. This issue is addressed in paragraphs
7 334 to 352 of our brief.
8 The next OTP claim is that "On 6 May 1999, the Supreme Court
9 staff intelligence department reported that General Clark 'assessed that
10 there was no longer a possibility for the VJ to continue with ethnic
11 cleansing in Kosovo.'"
12 It's difficult to understand what the OTP is driving at here.
13 Surely General Clark, indeed the enemy at this point in May 1999, can
14 hardly be cited as any kind of dispassionate observer on whether there
15 was knowledge on the part of General Ojdanic or the General Staff of the
16 forcible expulsion of Kosovar Albanians. This is particularly true since
17 after two
18 the evidence contained in paragraph 791 of its brief, which I hope we
19 have shown is without merit.
20 The last OTP allegation in this regard is that "On 8 May 1999,
21 Lieutenant Colonel Stevan Djurovic, the deputy of the Pristina Corps
22 security, met with Vasiljevic in Belgrade and informed him about the
23 crimes against civilians committed by the military. These included a
24 rape case and two murders. Vasiljevic instructed him to prepare a
25 report."
Page 27159
1 This set of facts is covered in our brief at paragraph 339 as
2 part of the section of our brief in which General Ojdanic begins to
3 receive a flow of information in May 1999 regarding some unreported
4 crimes and is proactive concerned measures to remedy any reporting
5 deficiencies. Vasiljevic stated that his impression was that this was
6 the first time General Ojdanic had heard about these crimes.
7 The fact is as set forth extensively in our brief that
8 General Ojdanic did not receive complete information regarding VJ
9 activity in the field in Kosovo. More specifically, General Ojdanic did
10 not have knowledge of widespread crimes committed or about to be
11 committed sufficient to declare either actual or inquiry notice. This
12 lack of knowledge in regards to crimes allegedly committed by VJ forces
13 is described in detail in paragraphs 252 -- 256 to 262 of our final
14 brief.
15 For instance, Generals Curcin and Simic and Colonel Ivkovic,
16 among others in the VJ General Staff, testified that the Supreme Command
17 Staff did not have knowledge of massive violations of international
18 humanitarian law but, rather, only received information indicating
19 isolated and unorganised criminal behaviour, unorganised criminal
20 behaviour, on behalf of individual soldiers that were being successfully
21 resolved. 3D1121, paragraph 27. 3D1089, page 11. 3D1117, paragraph 13
22 and 27 respectively.
23 The texts of all collegiums, Supreme Command combat reports,
24 daily briefings, security administration reports and 3rd Army reports are
25 attached as annexes to our brief. A careful examination of the abundance
Page 27160
1 of documentary evidence fails to locate any instance which would have
2 provided General Ojdanic with knowledge or a reason to know that massive
3 crimes against humanity were occurring in Kosovo. Rather, similar to the
4 testimony you've heard, through the testimony that you've heard, a review
5 of the Pristina Corps and 3rd Army combat reports indicated that the
6 staff of the Supreme Command was being informed in general of the
7 commission of some crimes in Kosovo and was being consistently assured
8 that these crimes were being adequately addressed by the military justice
9 organs.
10 On the subject of reporting on widespread crimes I want to take a
11 brief detour here to take some issue with paragraph 221 of
12 General Pavkovic's brief. This paragraph refers to an article from the
13 Politika newspaper of 5 May 1999
14 reports the commission of numerous serious crimes within Kosovo, the
15 arrest of several hundred perpetrators, and the imposition of a large
16 number of sentences from 5
17 that paragraph in the Pavkovic brief states.
18 The Ojdanic Defence, in a written submission of 15 November 2007,
19 objected on several grounds to the admission of this newspaper article
20 from the bar table when it was first offered into evidence. Among other
21 objections to its unreliability as a newspaper article, the Ojdanic
22 Defence pointed out that the best evidence of reporting of war crimes
23 were the combat reports of the 3rd Army and that the article's contents
24 had already been refuted by the testimony of General Radomir Gojevic, the
25 chief legal officer of the General Staff, particularly to the extent that
Page 27161
1 it reported massive war crimes followed by lengthy prison sentences.
2 In its decision of 28 November 2007
3 paragraph 6 that 4D406, as was generally the case with newspaper
4 articles, was not admissible to prove the truth of its contents. So we
5 submit that paragraph 221 of the Pavkovic brief should not be given any
6 weight by the Trial Chamber.
7 I should add that while this article is not admissible to prove
8 the truth of its contents, the Trial Chamber may recall that the Ojdanic
9 Defence had no objection to the admissibility of this article simply to
10 show knowledge of its contents when it was sent to certain recipients in
11 the MUP to take measures against the commission of crimes. This is
12 reflected in the testimony of the witness Mijatovic at TR22547-549.
13 Judge Bonomy pointed out at that time the distinction between
14 excluding this document as to the truth of its contents but admitting it
15 solely on the issue of notice.
16 Returning to the subject as to when General Ojdanic became aware
17 of unreported crimes, General Vasiljevic testified that General Ojdanic
18 sent him and General Gajic to Kosovo to gather more detailed information
19 about what was going on concerning crimes, looting, and the other
20 problems that were reported. General Vasiljevic learned during this
21 investigation that there had been a decision by the army command in
22 Pristina not to report the commission of some crimes to the Supreme
23 Command Staff. General Vasiljevic went on to say that the 3rd Army had
24 investigated and processed these cases and therefore they thought it
25 unnecessary to further report these particular cases up the chain of
Page 27162
1 command. This is transcript 8647, 8651.
2 I'd like to pause briefly here to consider the OTP claim about
3 General Ojdanic's failure to discipline or discharge General Pavkovic for
4 his conduct both before and during the war. The OTP first claims that
5 Pavkovic sent inaccurate reports to the General Staff by stating that it
6 was the KLA and not Serb forces who were primarily -- who were primarily
7 responsible for provocations before the war.
8 We've already dealt with this issue by pointing out inter alia
9 that there was no specific information other than an assertion by General
10 Dimitrijevic that these reports were inaccurate, and Dimitrijevic
11 testified that when General Ojdanic said he would be meeting with
12 General Pavkovic about this, he had no reason to doubt that since
13 General Ojdanic usually followed through on what he had to say -- on what
14 he had said.
15 The OTP next claims that the 3rd Army command failed to report
16 crimes to the General Staff during the war. However, as shown by the
17 testimony of General Vasiljevic, these crimes, though not reported to the
18 General Staff, were in fact processed and prosecuted by the responsible
19 lower commands. This bottleneck, therefore, can be described more
20 accurately as an inadvertent lack of communication as opposed to any
21 wilful attempt to misinform, and this circumstance is covered in our
22 final brief at paragraphs 250 to 255.
23 The short of it is that there was no compelling reason to suspend
24 or discipline the commander of the 3rd Army in the midst of a NATO
25 bombing campaign and the separatist and violent actions of the KLA. We
Page 27163
1 suggest that it would have been ill-advised and irresponsible to change
2 commanders in the middle of the war under these circumstances, despite
3 the urgings of General Hannis and General Stamp to substitute their
4 judgement for that of General Ojdanic.
5 All this is aside from the fact that General Ojdanic did hold
6 General Pavkovic accountable by calling him to Belgrade in mid-May 1999
7 after General Ojdanic was informed of the indication of widespread crimes
8 by Generals Farkas and Vasiljevic. General Pavkovic made his
9 explanations to Mr. Milosevic and others at this Belgrade meeting.
10 General Ojdanic then took steps to further investigate by sending his own
11 officers, Vasiljevic and Gajic, to the field. The efforts of Vasiljevic
12 and Gajic to investigate and discover other crimes is set forth in
13 paragraphs 363 to 375 of our brief.
14 In addition, there were further efforts to discover crimes which
15 were directed by General Ojdanic. This included, for instance, seven
16 wartime tours in Kosovo on behalf of the General Staff, as well as some
17 83 inspections at the brigade and battalion level. And this is all set
18 forth in 3D1116, page 171, 3D1115, paragraph 20.
19 It's significant to mention at this point that General Simic
20 testified that these inspections did not result in any indication to the
21 General Staff that war crimes were being committed on the ground by VJ
22 forces. 3D1089 and 3D489.
23 Another important example of General Ojdanic's efforts can be
24 seen following his receipt of the Louise Arbour letter on 2 -- May 29,
25 1999. General Ojdanic forwarded this letter to the legal administration
Page 27164
1 requesting that a draft order to prevent war crimes and punish
2 perpetrators. The end result was an order which stated "each military
3 officer who knows of the perpetration of violations of the principles,
4 rules and regulations of international war law who does not initiate
5 disciplinary or criminal procedure shall be personally responsible."
6 3D483.
7 This example and many others show that General Ojdanic met the
8 last requirement under Article 7(3), that he took the necessary and
9 reasonable measures to prevent the crime or punish the perpetrators, and
10 details of this appear in our final brief at paragraphs 516 to 534.
11 As an example, during the war General Ojdanic issued some 18 good
12 faith orders directed at compliance with the international laws of war.
13 Most of these orders are set forth in our brief, and they are all listed
14 in General Radinovic's military expert report 3D116 paragraphs 153, 154.
15 Additionally, issues related to the observance of humanitarian
16 law were regularly discussed in the daily briefings of the General Staff.
17 These briefings are summarised in the military expert report of General
18 Radinovic at 3D1116, pages 155 to 157. That might be paragraphs. I'm
19 not clear on that. It's either pages or paragraphs.
20 I wonder, Your Honours, if this might be an appropriate -- I'm
21 going on to another subject now which will take a few minutes of
22 explanation.
23 JUDGE BONOMY: Have you much longer?
24 MR. SEPENUK: I would say no, Your Honour. I would say 10 -- 15
25 minutes.
Page 27165
1 JUDGE BONOMY: Very well. We will adjourn now and resume at
2 11.15.
3 --- Recess taken at 10.44 a.m.
4 --- On resuming at 11.17 a.m.
5 JUDGE BONOMY: Mr. Sepenuk.
6 MR. SEPENUK: Thank you, Your Honour.
7 JUDGE CHOWHAN: Well, I would apologise asking you something at
8 the very beginning instead of disturbing you and spoiling your eloquence.
9 Now, on page 44, line 2, what I read it as that the lower command
10 did not report things, but what is -- what is attributed to them is
11 inadvertence and not anything purposeful, and then we also find that the
12 communication -- there were bottlenecks in communication and the general
13 did not receive it. Now, what can this be due to, lack of leadership or
14 something purposeful where -- where things have been suppressed? If it
15 is inadvertent, it is very strange. And how can it be inadvertence in a
16 disciplined force like the army?
17 And then we find Louise Arbour talking of certain things and
18 communicating it, and of course he took action, as you said. But these
19 are paradoxes which have bothered me, and I thought that it's good that I
20 made a request to you to kindly clear it up so that I acknowledge things
21 in the right way.
22 I'm very grateful.
23 MR. SEPENUK: Thank you, Your Honour. Well, in good part
24 following the testimony of General Vasiljevic who said that in his
25 opinion he thought it was inadvertent, that the crimes were being
Page 27166
1 processed and prosecuted in the lower units and therefore the decision
2 was made that it wasn't really necessary to report the crimes up the
3 line, and he was satisfied that the crimes were indeed being prosecuted
4 and I go into that a little bit further in the last part of my argument.
5 Yes, it could be a lack of leadership. It could be a lack of
6 control. I don't think -- you know, it should have been reported up. We
7 don't deny that at all. But I don't think there was any -- certainly no
8 criminal intent here or even criminal negligence. Indeed be criminal
9 negligence if the crimes were reported and not punished. That would
10 indeed be criminal. But the failure to report the crimes in our view was
11 inadvertent. Now, again it may have been a failure of leadership but I
12 would say nothing more than that.
13 JUDGE CHOWHAN: But wasn't there an intelligence system reporting
14 to the chief of army staff about all these happenings? When somebody in
15 a remote place, I mean so remotely away like at The Hague and the
16 knowledge of it and things are being formulated by him and reported and
17 then action is taken. Now, this I was not able to reconcile, and I seek
18 your help and what have you to say to help me in this?
19 MR. SEPENUK: Well, of course yes, there was and intelligence
20 system through the intelligence division and dealing mostly with the KLA
21 and NATO, and then course there was the security administration dealing
22 with the report of crimes and what not, but again I'm -- I wish I could
23 do better and to explain the so-called bottleneck, but again to me, at
24 least to the Ojdanic Defence, the bottom line is that these crimes were
25 reported ultimately and prosecuted.
Page 27167
1 Is that satisfactory, Judge Chowhan?
2 JUDGE CHOWHAN: I'm very grateful that you responded to this.
3 MR. SEPENUK: Thank you, Your Honour.
4 [Trial Chamber confers]
5 JUDGE CHOWHAN: What the Honourable Judge was telling me was that
6 you did understand me when I said Louise Arbour. That's the Prosecutor
7 here.
8 MR. SEPENUK: Oh, sure. Louise Arbour, correct, absolutely, yes.
9 We were dealing with attempting to show that General Ojdanic met
10 the last requirement under Article 7(3), that he took the necessary and
11 reasonable measures to prevent the crime and to punish the perpetrators.
12 We just talked about the number of orders that he issued directed at
13 compliance with the international laws of war.
14 The OTP in paragraph 825 of its brief claims that the
15 distribution of some 1.300 copies of the rules of combatants for
16 combatants was "clearly insufficient" to meet the needs of the 14.000
17 soldiers of the Pristina Corps. This statement is based on a misreading
18 of the record by the OTP which I'd now like to clarify.
19 The Trial Chamber will recall the small four-page laminated
20 pamphlet 3D988 entitled "rules of conduct for soldiers," which briefly
21 and clearly summarises a soldier's duty to treat both combatants and
22 civilians humanely. I'm sure you all remember that little laminated
23 pamphlet that fits in your wallet or inside pocket.
24 Both General Gojevic, the chief legal officer of the army General
25 Staff, and General Farkas, the chief of VJ security, testified that this
Page 27168
1 leaflet was distributed to every soldier in the army at the beginning of
2 the war. That's Gojevic at 16647-48 and Farkas at 16315.
3 The OTP conveniently overlooks this testimony and states at
4 paragraphs 824, 825 of its brief that only 350 copies of this pamphlet
5 was distributed to soldiers in the Pristina Corps. We suggest that the
6 OTP has gotten it wrong here again, but I think in fairness to the OTP
7 that the OTP might have been inadvertently misled by material contained
8 in the Radinovic report at paragraphs 186 to 190. That expert report
9 does state at paragraph 189 that 350 of these pamphlets from a larger
10 group of some 1.300 copies were distributed to soldiers in the 3rd Army.
11 In fact, what apparently was distributed, as indicated by the
12 statement of Ojdanic Defence witness General Gajic, that's 3D1084 at
13 paragraph 145, was "1.300 copies of the International Red Cross brochure"
14 which cited various obligations of combatants to observe international
15 humanitarian law. That's at 15277. In any event the testimony of
16 Generals Gojevic and Farkas that every soldier received a copy of the
17 rules of conduct was reaffirmed by General Radinovic in his expert
18 report. If the OTP had just read a bit further down the page, General
19 Radinovic states, "Moreover, such short and succinct formulations are
20 amenable to printing in pocket format which too made it possible for the
21 rules to be found in the pocket of every VJ member in Kosovo and
22 Metohija." That's 3D1116, paragraph 191. It's really clear that every
23 VJ soldier received a copy of this pamphlet.
24 Just as General Ojdanic fulfilled his duty to prevent crimes, so
25 did he did ensure that all reasonable and necessary measures were taken
Page 27169
1 to prosecute and punish criminal offenders. A matter of hours after NATO
2 air-strikes had commenced on the evening of 24 March 1999,
3 General Ojdanic ordered that all wartime military courts and wartime
4 military prosecutors be mobilised and that they organise their work
5 immediately. In under one week's time, the chief of the legal section of
6 the General Staff had inspected and visited wartime judicial organs in
7 the 3rd Army and determined that they were "ready with regard to
8 personnel and expertise to carry out tasks within their competence."
9 3D804, paragraph 3.3.
10 As an example of the diligence -- of his diligence in overseeing
11 the military justice system we call the Trial Chamber's attention to
12 Annex G of our final brief. This annex shows that General Ojdanic
13 received an update on the work of judicial organs on 63 of 78 days during
14 the war. Of course the military justice system had its flaws, but when
15 problems were identified, they were immediately addressed and corrected.
16 General Gojevic, who was in charge of the legal section of the
17 General Staff, testified that on 12 May 1999, he wrote a report to the
18 Supreme Court staff -- to the Supreme Command Staff stating his
19 assessment that "The volume and complexity of the tasked faced by
20 military judicial organs was too great a load for the existing
21 establishment and after making adjustments and overcoming initial
22 difficulties, the military judicial organs have become fully
23 operational." P2826, paragraph 2.3.
24 Further, General Gojevic testified very significantly that he did
25 not know of a single reported war crime that was not investigated and
Page 27170
1 processed through the criminal justice system. 16686.
2 We should note that General Ojdanic himself questioned General
3 Gojevic after the war about the relatively low number of persons
4 prosecuted for serious war crimes. We noted General Gojevic's answer to
5 General Ojdanic in our brief at paragraph 310, and we suggest it's worth
6 repeating because his words make sense. I hope it makes sense to the
7 Trial Chamber. He said, "In times of war it's very difficult to identify
8 perpetrators and find them because the perpetrators hide very well.
9 There is an atmosphere of fear, so that even those in the immediate
10 surroundings of perpetrators are reluctant to report them. And even in
11 cases when only fighting men were concerned, this seemed to be true as
12 well. That is the flip side, the negative side of solidarity, but it's
13 typical of all soldiers that they are bound by ties of solidarity
14 regardless of the circumstances." That's at 16685.
15 As the war drew to a close and as the extent of certain crimes
16 began to come to light at the level of the Supreme Command, a briefing
17 was held by the Supreme Command Staff. According to the notes of this
18 briefing which is Exhibit 3D493, General Farkas reported that a full
19 analysis had been made of the problems involving humanitarian crime. He
20 said that most of the atrocities and serious crimes from looting to rapes
21 had been documented and were now before military court organs. He said
22 that around 95 per cent of the perpetrators had been arrested or were
23 under investigation.
24 At this meeting General Ojdanic issued a document ordering that
25 military judicial organs should prioritise their prosecution of crimes
Page 27171
1 and that violations of international law must be the first priority.
2 That's Exhibit 4D487.
3 Therefore, the evidence in this case shows that General Ojdanic
4 had no knowledge of the specific crimes alleged in the indictment and
5 therefore no ability or duty to prevent or punish them -- or punish them.
6 The evidence also shows that he was affirmatively informed that the
7 movement of the population was the result of either NATO bombing or KLA
8 actions, not that of the army. And the evidence further shows that when
9 he was informed of violations of international humanitarian law being
10 committed by members of the army in Kosovo, he took swift and repeated
11 steps to investigate, prevent, and punish those crimes.
12 A review of the jurisprudence that sets out the standards of a
13 top commander such as General Ojdanic shows that his actions were
14 appropriate and proper. This jurisprudence is fully set forth in our
15 brief and I don't think bears repeating here. I would only reiterate for
16 the Trial Chamber that during the war General Ojdanic was located
17 primarily in a bunker hundreds of feet under the ground in Belgrade
18 wholly dependent upon the information he received from subordinates. His
19 country was subject to massive air bombardment, mass insurgency and the
20 prospect of imminent land invasion.
21 We ask you to take account of this in judging whether
22 General Ojdanic's actions met the standards of accountability for a top
23 commander as we so strongly urged.
24 To conclude and to step back for a moment to look at the big
25 picture, if General Ojdanic was in fact responsible for the deportation
Page 27172
1 and murder of Albanians, either individually or as a superior commander,
2 don't you think you would have heard some evidence about that? The
3 Prosecution in this case has a good part of the entire international
4 community behind it. It has tremendous evidence-gathering capabilities,
5 not only from NATO and its member countries but from Serbia itself. It
6 has access to the most candid conversations of General Ojdanic, whether
7 it be electronic surveillance, the verbatim transcripts of the General
8 Staff collegiums, or the insiders who have come to testify during this
9 trial, particularly Generals Vasiljevic and Dimitrijevic. It has access
10 to all the orders issued before, during, and after the war, and all of
11 the combat reports. From all of these sources there is no smoking gun,
12 not even a wisp of smoke. There is no evidence against General Ojdanic
13 for one simple reason. He is not guilty.
14 You are all experienced Judges. You know what is fair and you
15 know proof beyond a reasonable doubt when you see it. The Prosecutor's
16 case has fallen short of this standard and it's done so not for lack of
17 effort or for lack of good advocacy. It has fallen short because
18 General Ojdanic is truly not guilty. I suggest that to find
19 General Ojdanic guilty you would have to affirmatively disbelieve
20 Prosecution witness General Vasiljevic who showed how General Ojdanic did
21 all he could to get to the bottom of crimes in Kosovo. The Court's own
22 witness, General Dimitrijevic, who affirmed that General Ojdanic was
23 sincere in his efforts to get accurate information from Kosovo and the
24 numerous officers of the Yugoslavian army who came into this courtroom in
25 person or by videolink and told it as it was.
Page 27173
1 Indeed, it is hard to imagine more exemplary conduct by a
2 military leader during a war. General Ojdanic organised seminars, issued
3 orders, distributed pamphlets, screened volunteers and banned
4 paramilitaries to ensure that the standards of international humanitarian
5 law would be observe. When he learned of problems he ordered
6 investigations, sent personal emissaries, upgraded the military justice
7 system, alerted President Milosevic, advocated the creation of a state
8 investigation commission and made personal pleas to Albanians to remain
9 in their homes, and all for a battle he never sought and a war he never
10 wanted.
11 Mr. Visnjic and I have been privileged to represent
12 General Ojdanic. He's no criminal. He's a good man, a good soldier and
13 a good commander. He is unjustly accused.
14 The events that unfolded in Kosovo in 1999 are tragic indeed, but
15 a rational judgement must declare that General Ojdanic stood for peace
16 and conciliation, not for war and discrimination. He should be acquitted
17 on all counts of this indictment.
18 JUDGE BONOMY: Does that complete?
19 MR. SEPENUK: That completes it, Your Honour.
20 JUDGE BONOMY: You're just frightened to move off that seat.
21 MR. SEPENUK: It's my last gasp, Your Honour.
22 JUDGE BONOMY: Well, thank you, Mr. Sepenuk, for these
23 submissions.
24 We will now hear closing arguments on behalf of Mr. Pavkovic.
25 Mr. Ackerman.
Page 27174
1 MR. ACKERMAN: Your Honours, good morning and good morning to
2 everyone in this court. To some extent I guess I share the feelings of
3 Mr. Fila about how much can really be accomplished by arguing to you
4 after you have sat there for two years and so carefully listened to what
5 we've been doing here and followed this, and I -- it's been remarkable to
6 me really how diligent you've been in that regard, and I think we're all
7 privileged to have such a good Trial Chamber to try this case to. But
8 you know, I'm an old trial lawyer, and old trial lawyers are like
9 racehorses. You put them in the gate and you open the gate and they're
10 going to run until you tell them to stop, so here I go.
11 We've come to the end of what I think is a long and sometimes
12 dusty and sometimes unmarked road, and I'd probably be remiss,
13 Judge Bonomy, if I didn't also say in the spirit of motions that I've
14 filed one without any speed limit, but here we are. I'm not even going
15 to make an attempt to summarise the two years of testimony and exhibits
16 that we have seen as we've gone through at this time. I think my
17 approach to this argument must be simply one of -- of looking at what the
18 OTP says is their best case and telling you why I believe it is not, and
19 so that's what I'm going to do. On occasion I will go beyond the OTP
20 brief and argument, but rarely, I suppose.
21 You've heard three persons speak in front of me, and I suspect it
22 has come to your attention that all of them were critical of various
23 parts of the Prosecution's brief as being misleading or as not being
24 accurate, and I think that's a bit remarkable for a brief in a case of
25 this nature, and I must say to you that I was stunned a bit when I
Page 27175
1 started looking at the Prosecution's brief and looking at what was said
2 and how the footnotes failed to support many of the things that were
3 said, and I say that with some regret, because I have huge respect for
4 Mr. Hannis and the people who have worked under him throughout this
5 trial, and I don't know how it happened that their brief got in the state
6 that it got into, but it is not what it should be, in my view, and I will
7 spend some time talking to you about that.
8 I say that at the beginning to second the arguments made by my
9 colleagues but also to urge all of you to pay very particular attention
10 to the things that are written in the Prosecutor's brief and make certain
11 that there's evidence that supports them and make certain that what they
12 cite in the footnotes really supports what they say in the paragraphs.
13 You all know that as you consider the evidence in this case
14 that -- that what we expect of you and what the law expects of you, what
15 the tradition of our profession expects of you is that you judge the
16 evidence in this case by the standards that protect the freedom and
17 integrity of the rule of law, and that is you judge it by the standards
18 of holding the Prosecution to their task of proving guilt in this case
19 beyond a reasonable doubt. And you can hear Mr. Hannis tell you that you
20 have to adopt the most likely thing, and you have to use Occam's razor
21 and say, you know, apply that to it, but if -- Mr. Hannis probably would
22 like that to be the law but that's not the law, and you must apply the
23 law and I know you will. You know that when there are two reasonable
24 conclusions you always must adopt the one that's most consistent with the
25 innocence of the person standing before you.
Page 27176
1 There are to me some fairly obvious questions that you should ask
2 as you analyse the evidence in this case. Mr. Stamp spoke to you the
3 first day about witness credibility. Mr. Hannis talked about witness
4 credibility, suggesting that some witnesses had an interest that would
5 make their testimony maybe less than credible.
6 The first thing I want to say about that is we probably couldn't
7 have tried this case at a more unfortunate time, but that's the way the
8 time worked out. We tried the case involving the events in Kosovo right
9 in the middle of the negotiations regarding the independence of Kosovo,
10 so that there were -- there were political considerations on both sides
11 with the witnesses that came in to testify in this case. They had to
12 have in their minds, it seems to me, what effect their testimony might
13 have on the efforts to achieve independence by Kosovo, and I think it's
14 just something to keep perhaps in the back of your minds as you make your
15 way through this evidence.
16 Mr. O'Sullivan talked to you a little bit about this issue, and
17 that is what was it the NATO intervention was really about. It was
18 publicly announced as a -- an action to prevent a humanitarian crisis. I
19 think if anything is clear at this point it is that that is not what it
20 was, that that was merely a pretext for what I say was an effort to
21 change the Milosevic regime. The goal here was regime change, not
22 avoiding a humanitarian crisis. And there's a lot of evidence that
23 supports that. There's the testimony of John Crosland, who said that's
24 what it was about, who knew that's what it was about. And there's the --
25 the indictment in this case.
Page 27177
1 I think it's interesting, if there was a humanitarian crisis
2 going on, that would have to be a crisis that would involve the
3 commission of crimes, it would seem to me, either deportations or murders
4 or something of that nature, something that would qualify as a
5 humanitarian crisis caused by individuals, people, and yet the first
6 crime that's charged in this indictment is not until the 24th of March,
7 the day that NATO started bombing. So that's when the humanitarian
8 crisis began according to the indictment of the Prosecutor.
9 I -- I have the good fortune in this case to represent
10 General Pavkovic. General Pavkovic is an intelligent, accomplished
11 professional soldier and has been throughout his entire military career.
12 Every step through his career has been exemplary. He was at the top of
13 his class in every course that he took in his career in the army. He was
14 promoted ahead of his colleagues in almost every promotion that he
15 received in his career in the army. His superiors always gave him the
16 highest possible ratings. And all of this is in the evidence in this
17 case.
18 You will remember Shaun Byrnes talking about General Pavkovic.
19 He said he was direct and professional. He referred to him as a
20 soldier's soldier who didn't get involved in lectures on Serb history or
21 politics. He also said that his view of the VJ was that it conducted
22 itself both professionally and honourably both before and during the
23 conflict. Now, that's a VJ that was under the command of
24 General Pavkovic, a general who insisted that those under his command
25 conduct themselves professionally and honourably and would not
Page 27178
1 countenance their failure to do that.
2 And while I'm talking about Shaun Byrnes, let me just mention
3 that -- what he said about the allegations of excessive force. It says
4 his view that shelling that VJ did with their heavy weaponry was not
5 intended to cause casualties but more in the nature of causing harassment
6 or fear, and that is to, I say, warn the civilian population that there
7 may be an action coming up and that they should get out of the way.
8 If I could point you to one thing in this record which I think
9 virtually compels the acquittal of General Pavkovic, it is the evidence
10 about the meetings of the 16th and 17th of May in Belgrade when
11 General Ojdanic asked General Pavkovic to come to Belgrade and talk about
12 some things he'd heard about crimes being committed.
13 Pavkovic came and reported both in a meeting on the 16th with
14 Ojdanic and others and the next day in a meeting with Milosevic, and you
15 will recall that in both of those meetings Pavkovic urged the formation
16 of an investigative commission to look into the matter in depth and make
17 determinations about the commission of crimes, who was responsible for
18 the commission of crimes, and to really get to the bottom of the issue.
19 Now, that is not something that would be done by a person who
20 believes that the result of that investigation would be to implicate him.
21 That's the recommendation of a person who knows that he himself is clear
22 of any accusation about that but that also knows there is something fishy
23 going on down there that somebody ought to take a look at. And I think
24 it's notable that both General Ojdanic, and the next day General Ojdanic
25 and Sainovic agreed with Pavkovic about that and urged Milosevic to do
Page 27179
1 that, and Milosevic didn't, and we don't know why. The only thing we
2 really know was at the end of that meeting Milosevic urged some people to
3 remain after the army personnel had left, and it would be interesting to
4 know what happened in that next meeting.
5 I can assure you this: If General Ojdanic had proposed the
6 formation of such a commission and General Pavkovic had opposed it, that
7 would be some of the strongest evidence the Prosecution could possibly
8 have against him. The other side of that shows you his innocence.
9 You've heard a lot about the -- the Prosecution's theory on the
10 JCE, the plan, the modification of the ethnic balance, the use of NATO
11 bombing as cover for carrying that out, and I'm not going to spend very
12 much time talking about because you've heard all about it already but
13 just suggest to you that the Prosecution hasn't even come close to
14 proving that to you beyond a reasonable doubt. It's argued in our brief.
15 It's argued extremely well in the Ojdanic brief.
16 The Prosecution argued on the first day and they argue in their
17 brief, Ms. Kravetz talked about it and the brief talks about it, and what
18 they say is that the evidence for the existence of this joint criminal
19 enterprise is the crime base that you have heard about, that people left
20 Kosovo, that people were killed, that some rapes occurred, that the fact
21 that those happened throughout Kosovo is evidence that there was a plan.
22 And what I ask you to do is just pick a war. I don't care which
23 one you pick, just pick any one. What happens in wars when bombs are
24 being dropped is people leave and people are killed and rapes happen, and
25 other crimes happen, lootings happen. All these things happen. The fact
Page 27180
1 that Kosovo looked the same as every other war we've ever seen does not
2 prove that there was an overarching joint criminal enterprise plan in
3 Kosovo. It just shows you that it was another war where things happened
4 just like happened in every other war. That's not a pattern that proves
5 JCE.
6 On the second day beginning at page 82 of the transcript,
7 Mr. Hannis went through an exercise where he started with Ojdanic's Grom
8 3 directive and traced it down through a series of first an order from
9 the 3rd Army and then down through a series of orders from the Pristina
10 Corps to the brigade level and so forth to show you that the -- the
11 actions that were carried out were first ordered at the very top and then
12 carried down through the chain of command and then carried out around the
13 country in accordance with that Grom 3 directive.
14 These are all perfectly legal orders. They were appropriate
15 military actions against terrorists. They don't order the commission of
16 any crimes. They're the kind of orders you'd expect to find in any
17 professional military organisation trying to protect its borders and deal
18 with a terrorist uprising at the same time. They prove no crime charged
19 in this indictment. They're no indication whatsoever of the existence of
20 the JCE as alleged.
21 In his presentation Mr. Hannis made suggestions about
22 possibilities. He raised matters that you should view as suspicious, but
23 this is a criminal case, remember. Allegations must be proved beyond a
24 reasonable doubt. Suspicions and possibilities are not sufficient for
25 conviction.
Page 27181
1 One thing that you've heard the Prosecution talk about, and
2 you'll find it in their brief, paragraph 696 is one place, when they're
3 trying to use things that happened in 1998 as evidence regarding 1999,
4 one of the arguments is that the powers that be, General Pavkovic and
5 others, should have known in 1999, because of what they learned from
6 1998, that crimes were going to be committed and should have done
7 something about that, because they say it was the same forces. But first
8 of all you haven't heard one bit of evidence that it was the same forces.
9 In fact, what you've heard is it was not.
10 The people down on the ground doing the fighting were conscripts
11 who were cycling in and out of Kosovo all the time. They'd finish their
12 military obligation and they were gone and new conscripts would come in,
13 and new conscripts were coming in all the time, and that is why you see
14 General Pavkovic over and over sending out orders regarding adherence to
15 the laws of war, because he knew about every 30 days there was a new
16 group of soldiers down there and he wanted to remind his commanders to
17 remind them to adhere to the law.
18 There's been an enormous amount of -- of smoke and argument about
19 the alleged illegal use of the VJ in Kosovo in 1998. It's been talked
20 about throughout this trial. You know what the law is. You've seen the
21 law, and you know that the VJ could have operated legally as it in fact
22 operated in Kosovo in 1998. I think this whole issue about illegal use
23 of the VJ was a smokescreen created by Perisic and his supporters in the
24 General Staff who were expressing their jealousies and who were
25 disgruntled with their loss of power.
Page 27182
1 If Perisic was really concerned that General Pavkovic was somehow
2 using the VJ illegally, he was the commanding General. All he had to do
3 was remove him. He didn't even take the first step to do that. So I
4 think it's all just made up.
5 It all arose out of that letter that Perisic sent to Milosevic
6 and his complaints about the use of the VJ. And one thing that I think
7 has gotten completely befuddled in all of this, and it has even confused
8 some of my colleagues as you may have just heard. Perisic is not saying
9 to Milosevic, "We shouldn't be using the VJ against terrorists in
10 Kosovo," at all. He's not saying that at all. He's saying, "To use the
11 VJ against terrorists in Kosovo we need to declare a state of emergency
12 or state of war. Now, let's do that. Let's declare that state of
13 emergency or state of war because I want to mount a really, really
14 massive campaign against these people." And they wouldn't do that. And
15 there were reasons they wouldn't do that, and General Pavkovic set out
16 those reasons pretty clearly in his October report. They were dealing
17 with a diplomatic situation that simply would not have allowed them to do
18 what Perisic wanted done, and that is declare this state of war or state
19 of emergency.
20 The contention that the army was being used unconstitutionally,
21 we keep hearing that, and I think I distinctly said in my arguments at
22 the 98 bis level, if the Prosecution can find anywhere in the
23 constitution any constitutional provision that was being violated by the
24 use the army, tell us what it is, and that's never happened. And you can
25 read the constitution, Your Honours, until you turn blue and you won't
Page 27183
1 find it, because there's nothing unconstitutional about the way the army
2 was being used.
3 Paragraph 856 of the Prosecutor's brief says: "Samardzic tried
4 to initiate disciplinary proceedings against Pavkovic." You will not
5 find any evidence, direct evidence, in this record that General Pavkovic
6 ever used a Pristina Corps unit except pursuant to an order coming down
7 through the chain of command, not one. There's no evidence beyond the
8 uncorroborated evidence of Dimitrijevic that Samardzic made any efforts
9 to discipline Pavkovic, and I suggest to you Dimitrijevic is simply part
10 of the Perisic cabal that does not like what happened in terms of their
11 loss of power.
12 In the footnote to paragraph 856, the OTP relies on the
13 Samardzic [sic] testimony, and also they say that this is also proved by
14 Exhibit P922, but that exhibit says absolutely nothing about a Samardzic
15 effort to discipline Pavkovic, although they cite it in support of their
16 assertion.
17 64, line 13 says Samardzic testimony. It should be Dimitrijevic
18 testimony.
19 I suggest to you this whole thing was an invention of
20 Dimitrijevic. You've got to remember that in the assessment of the
21 performance of General Nebojsa Pavkovic from the period 29 June 1997
22 10 January 1999
23 Dimitrijevic tells you tried to initiate disciplinary proceedings against
24 him, he says about General -- General Pavkovic as commander of the
25 3rd Army, Pristina Corps: "He showed superior qualities that he had been
Page 27184
1 continuously improving on over time as a result of several previously
2 held important posts in the Pristina Corps command and the Main Staff of
3 the Yugoslav army. Owing to such results and related intellectual and
4 moral qualities, General Pavkovic was exceptionally promoted to the rank
5 of lieutenant general. His assessment is positive with the mark
6 exceptional." And I think it was General Vasiljevic who told you that's
7 the highest possible rating that he could have gotten.
8 At paragraph 701 of their brief the OTP makes this argument:
9 "President Djukanovic raised the issue of possible crimes committed in
10 Kosovo." Now, I underline possible crimes. "Raised the issue of
11 possible crimes committed in Kosovo by pointing to information indicating
12 that the Pristina Corps actions were not always in accordance with the
13 constitutional role of the army and the decisions of the Supreme Defence
14 Council." And the reference there is to P1000, pages 9 and 10.
15 This concern expressed by Djukanovic does not raise the issue of
16 possible crimes committed in Kosovo as contended by the Prosecutor. It's
17 an irresponsible contention. He did not raise any issue of possible
18 crimes committed in Kosovo. He was just harping along the Perisic line
19 about the unconstitutional use of the army in Kosovo. We all know there
20 was no unconstitutional use.
21 Mr. O'Sullivan clearly pointed out to you in his remarks that in
22 that meeting when shown additional material, Djukanovic then indicated
23 that he was satisfied with that.
24 Another thing we heard about 1998 in Kosovo was that the VJ was
25 using disproportionate force. One of the places you'll see it in the
Page 27185
1 Prosecution's brief is in paragraph 709 where they refer to Naumann who
2 said that Milosevic was presented with somewhere between five and ten
3 incidents in which disproportionate force had been used.
4 There's been no really thorough examination in this case of what
5 that phrase means, "disproportionate force," and what it is. What we
6 have is the opinion of some of the observers that were -- that were in
7 Kosovo at the time that -- that they thought that disproportionate force
8 was being used. And I've given a lot of thought to what that is. It's a
9 strange concept in many ways. It makes sense if what you're saying is
10 that you shouldn't use heavy weaponry against persons wielding spears and
11 throwing rocks. I would agree that that force in that nature would be
12 disproportionate.
13 But I don't understand it to mean that the force you use must be
14 roughly equal to the force that you're going against so that the same
15 number of fighters are killed on each side. Clearly it can't mean that,
16 but that seems to be what's being suggested by the Prosecution here, that
17 the Serbs should have let the KLA kill more of their people instead of
18 trying to deal with them the way they did.
19 They argue that Serb use of tanks and artillery when terrorists
20 didn't have any was disproportionate force, and I suggest to you that is
21 not the law and was never meant to be the law, and again, pick a war, any
22 war, and you'll find that that's not the case in any war. And how much
23 more disproportionate could force possibly get if you apply that kind of
24 a test to it than the dropping of cluster bombs on a country that had no
25 effective air force and a rather ineffective air defence capability?
Page 27186
1 Cluster bombs and uranium munitions, things of that nature. I mean, the
2 Serbs weren't dropping cluster bombs on any NATO countries.
3 I suggest to you you're not required to risk the lives of your
4 soldiers in any way that gives advantage to a terrorist uprising.
5 Terrorists were shooting at Serbs from houses, they were shooting at
6 Serbs from even mosques on occasion, we've learned. And you have an
7 absolute right to shoot back with a tank or an artillery weapon. You
8 don't have to send your soldiers marching out across the field and have
9 them mowed down by people in those buildings.
10 I was going to talk to you about the I think absolutely
11 ridiculous allegation in paragraph 104 that Ojdanic should have
12 disciplined Pavkovic. Mr. Sepenuk covered that pretty well.
13 What should he have disciplined him for? For what? Is there any
14 evidence that Pavkovic was committing any crimes that he should have been
15 disciplined for? Was there any evidence that he was doing anything he
16 should have been disciplined for other than being an absolutely exemplary
17 soldier and carrying out the orders that were given to him?
18 You know, you have an obligation if you're an officer in the
19 military to carry out the orders you receive unless those orders order
20 you to violate the law. Look at every order in this case and you'll not
21 find one that orders General Pavkovic to violate the law.
22 JUDGE BONOMY: Mr. Ackerman, which paragraph is that in the OTP
23 brief?
24 MR. ACKERMAN: Well, my note says 104, but I may have made a
25 mistake.
Page 27187
1 JUDGE BONOMY: It's not 104, but it doesn't matter. Please
2 continue.
3 MR. ACKERMAN: There's some indication that, and I'll get into
4 this in more detail, that maybe he was not properly reporting. I've
5 already talked about the false allegation of illegal use of the VJ in
6 1998, so I don't know what it is that the Prosecution thinks Ojdanic
7 should have disciplined him about.
8 Ojdanic sent Vasiljevic and Farkas down to Kosovo, you know, to
9 look at what was going on down there, and they came back and said, "Well,
10 we found out that all the crimes that are committed down there are being
11 detected and prosecuted. Ninety-five per cent of them are being
12 prosecuted and there aren't any problems, none at all."
13 It's paragraph 837, Judge.
14 JUDGE BONOMY: Thank you.
15 MR. ACKERMAN: I want to talk about another big issue of the
16 Prosecution and that is the breaching the October agreements, and I
17 suggest to you this is probably one of the more silly arguments that they
18 make, because you know if you don't have evidence to prove your
19 indictment, then you sort of figure out other -- other things you can
20 accuse people of that kind of might make them look bad.
21 You know, it's not against the law for the October agreements to
22 have been breached. That is not an offence that is within the
23 jurisdiction of Your Honours. They're not charged in this indictment
24 with breaching the October agreements. I tell you it's a smokescreen.
25 In paragraph 776 they contend Ojdanic facilitated the deliberate
Page 27188
1 breaching of the October agreements. In paragraph 781 they contend that
2 breaching of the agreements jeopardised a peaceful solution to the Kosovo
3 problem. How? We all know what happened. When the October agreements
4 came into force KLA took advantage of the Serb adherence to the
5 agreements, expanded its forces, brought in new arms and equipment,
6 retook much of the territory that had been taken during the spring
7 offensive. Breaching those agreements didn't jeopardise a peaceful
8 solution. The agreements themselves jeopardised a peaceful solution
9 because they put the KLA back in a position of power, back in a position
10 where they were carrying out the same kind of attacks against the Serbs
11 and fellow Albanians that they'd been carrying on before.
12 Even the Prosecution agrees that the KLA took major advantage of
13 the situation. Mr. Hannis said on Wednesday the KLA came back just as
14 strong or stronger than ever. He told you that in the context of
15 suggesting to you that the 1998 anti-terrorist strategy was a failure and
16 a new strategy needed to be found, but actually the 1998 strategy did
17 work, and the October agreements came along, restricted the Serbs, gave
18 the KLA a wide-open gate to walk through, and with Western help and
19 encouragement they walked right through it.
20 You may remember an intercepted conversation between two KLA
21 members that's in evidence in this case. It's in our brief at paragraph
22 120, one of them saying to the other, now the verifiers have arrived.
23 Things will be good. They don't dare attack us, but you attack them.
24 Guard your houses at night. Go out in the field from time to time, carry
25 out an attack and then return to the base.
Page 27189
1 We learn a lot from that. Guard your houses at night means they
2 were in their houses at night this these villages where they were being
3 protected by the villagers. They'd go out and carry out these attacks
4 and then return to those villages and then they wouldn't be wearing their
5 uniforms. And it is exactly what we've been hearing the way they
6 operated. And the OTP contends that Pavkovic was making up that the KLA
7 was attacking Serb forces and just pretending that the KLA was attacking
8 Serb forces, when they say exactly that's what they were going to do. We
9 know the observers were not make any serious efforts to curb the KLA.
10 And as Judge Nosworthy pointed out, when the Serbs entered into
11 this agreement they must have expected that there would be some kind of
12 parity between the opposing forces. They must have expected that the KLA
13 would be restricted in some way as they were being restricted, that it
14 really would achieve what the Western powers said they were trying to
15 achieve there, that it would bring about a cease-fire and stop the war,
16 and instead, what happened was the KLA was allowed to run wild and
17 achieve the strengthening and rearming that was soon clear to everyone.
18 Remember John Crosland's statement about that.
19 Sometimes when I was sitting and listening to the arguments of
20 the Prosecution I -- it sounded as if they were talking about the Serbs
21 having invaded some independent third country, that they had illegally
22 invaded an independent third country. I think we have to keep in mind
23 that this was happening in their country. This was happening in Serbia
24 a place where their army had an absolute right to be, a place that was
25 their place, and you know, just -- you all are from a different country
Page 27190
1 in this world, and what would happen if an insurgent uprising like this
2 started in your country? What if a bunch of terrorists started trying to
3 take over part of your country? You'd deal with it, I suggest, in pretty
4 much the same way the Serbs tried to deal with it here, to bring it to an
5 end, to save their country.
6 What the Serbs actually did in 1998 when they brought in some
7 additional people, additional forces down toward the end there, may have
8 saved a lot of lives. We have no idea what kind of a bloodbath may have
9 occurred had the KLA simply been allowed to run unchecked throughout
10 Kosovo because of those October agreements.
11 And then one has to ask what's the relevance of violation of
12 these agreements in this case? There could be relevance, I suggest, if
13 the OTP could show that any additional forces brought in to Kosovo in
14 violation of the agreements engaged in the commission of war crimes.
15 There's absolutely no showing of that. There's no showing that any
16 soldier or any unit brought into Kosovo in violation of the October
17 agreements committed any war crimes. So it's just irrelevant smoke
18 that's designed to obscure the issues in the case.
19 They contend that Pavkovic on his own brought the 72nd Special
20 Brigade into Kosovo without authority, and that shows you that Pavkovic
21 on his own was violating the October agreements, but they only refer you
22 to P1947, the document where Pavkovic suggests resubordination of that
23 brigade to the Pristina Corps. They neglected to point you to P1948
24 which is the 19 February order of General Ojdanic where he orders the
25 resubordination of that unit to the 3rd Army "for the purpose of carrying
Page 27191
1 out anti-terrorist and anti-sabotage tasks."
2 So again General Pavkovic is simply carrying out orders that he
3 receives. And clearly, you know, it wasn't designed that they be on the
4 edge of Kosovo. It was designed that they be in Kosovo "for the purpose
5 of carrying out anti-terrorist and anti-sabotage tasks." You couldn't
6 carry out anti-terrorist tasks outside Kosovo. It's another specious
7 argument against General Pavkovic and they knew or should have known that
8 it was a false argument.
9 Paragraph 25, on a different subject now, of the brief of the
10 Prosecution says: "All the accused shared Milosevic's sentiments about
11 Kosovo and were loyal to him." And then this: "Some such as Nebojsa
12 Pavkovic had close personal ties as well." And they cite you to
13 Vasiljevic, P2600, paragraph 21.
14 That statement of Vasiljevic says nothing about close personal
15 ties between Pavkovic and Milosevic. What he speaks of is an indirect
16 family connection which may have influenced the relationship. That's
17 what he says, indirect family connection which may have influenced the
18 relationship, not close family ties [sic].
19 Paragraph 137 the Prosecution talks about the removal of
20 officers --
21 72, line 15 I said close personal ties, not close family ties.
22 Paragraph 137: "The SDC minutes provide," important words here,
23 "concrete evidence that JCE members Milosevic and Milutinovic removed
24 individuals who were unwilling to further the goals of the JCE from key
25 positions and replace them with other accused who had shown their
Page 27192
1 commitment to implementing these goals. Totally unsupported allegation
2 of the OTP. Mr. O'Sullivan has discussed it at length and I'll touch on
3 it very briefly. The OTP used the phrase concrete evidence. What is
4 concrete evidence? That's evidence that's rock hard. It's unassailable.
5 It can't be questioned or countered. They say this exhibit provides
6 concrete evidence that Milosevic and Milutinovic removed individuals who
7 were unwilling to further the goals of the JCE.
8 I ask you, is this really a responsible argument? Is there
9 anything in this document where they talk about removing persons
10 unwilling to further their goals and replace them with those who will?
11 Where's the evidence that Pavkovic was willing to implement the goals of
12 the JCE? Zero. Nowhere does Pavkovic say oh, yeah, okay, I'll deport
13 people and I'll kill people. If that's what you want, I'll do that.
14 That's what you have to hear for this to make any sense. It makes no
15 sense. He hadn't ever deported any Albanians before, hadn't ever killed
16 or raped any before, to our knowledge. Where do they get the idea he was
17 willing to carry out those goals? I think it's a desperate statement by
18 a Prosecution that really has no concrete evidence at all. It's not even
19 remotely logical.
20 Paragraph 916, talking about Pavkovic again. He had the
21 authority to immediately remove commanders and soldiers from their
22 positions. During the war Pavkovic made daily visits to the field where
23 he reviewed and inspected the units to assess the implementation of
24 orders. Pavkovic also had the ability to remove volunteers who
25 participated in criminal activity.
Page 27193
1 Well, I guess the question you have to ask is when was it in the
2 record we learned that Pavkovic became aware of specific named volunteers
3 committing criminal activity that he failed to remove? When was it
4 Pavkovic became aware of commanders ordering the commission of war crimes
5 that he failed to remove? Where is the evidence that he became aware of
6 specific soldiers committing war crimes that he failed to remove?
7 Nowhere. Nowhere. And that has to be there or this makes no sense and
8 has no impact.
9 Why don't they say, if Perisic was telling the truth he had the
10 authority to remove Pavkovic and didn't? Why don't they argue that?
11 I want to go now to this whole issue of arming and disarming.
12 Paragraph 872. Pavkovic engaged the Pristina Corps to monitor the
13 behaviour of the Albanian population and disarm Albanian civilians along
14 the border belt.
15 Why -- tell me, why in a situation that existed in Kosovo at this
16 time was it a bad idea to disarm Albanians who were in an uprising
17 against Serbia
18 earlier, if you had that kind of an uprising going on in your country,
19 wouldn't you try to disarm the people that were involved in that
20 uprising? How many lives were saved by the disarming of these people?
21 How many lives were saved by removing weapons from the hands of possible
22 KLA terrorists? You heard that little quote, the intercept, go out and
23 conduct an action and go back to your village. That's exactly what they
24 were doing, and the VJ was going into those villages along the border
25 belt and taking those weapons out. So they weren't going out and
Page 27194
1 conducting actions and then fleeing back to their villages like they
2 said. Disarming them is what could bring peace and what could save
3 lives. It's not a crime. It's sensible.
4 How many lives would have been saved in Northern Ireland if the
5 IRA had been disarmed earlier than it was? How many? Hundreds maybe?
6 We don't know.
7 We do know that terrorists didn't always wear uniforms. We know
8 they were supported by and lived in the villages, and their effectiveness
9 in killing Serbs and fellow Albanians who sympathised with Serbs depended
10 to a great extent on the number of weapons they could get their hands on.
11 Disarmament lessened this violence and the killings they could inflict,
12 and lives absolutely must have been saved thereby. There is no evidence
13 it was done so that they could be indiscriminately killed, which is the
14 suggestion that's made by the Prosecution, I guess. There's no evidence
15 of that.
16 Paragraph 873. As early as June 1998, Pavkovic issued an order
17 to organise local non-Albanian civilians into local defence units and to
18 arm them with sniper rifles, automatic rifles, semi-automatic rifles and
19 light machine-guns.
20 Well, again a very misleading statement to you. The allegation
21 is that Pavkovic did this, that it was Pavkovic's responsibility and that
22 what he was arming was non-Albanian civilians.
23 You already know from what you've heard at least in these
24 arguments and probably in the trial that this was done due to an order
25 that Pavkovic received from Samardzic and you heard that Samardzic
Page 27195
1 detailed in a meeting how he had done this and how he had issued this
2 order. What's misleading is the nature of the order itself.
3 If you look at P1415 which is the order signed by Pavkovic, first
4 of all you will see that he refers -- that he says it's being issued
5 pursuant to the 3rd Army's previous order, 168-104, and then who is it
6 he's arming? Paragraph 1, organise and carry out technical preparations
7 for distribution of weapons and ammunition to military conscripts
8 assigned to war units of the Pristina Corps, the Pristina military
9 district and the 202nd logistics base. This is not non-Albanian
10 civilians. It's conscripts. Are they suggesting you're not supposed to
11 arm your soldiers? Is that the Prosecution's position, that it's illegal
12 to do that? That's what that order was.
13 Paragraph 126 talking about the armed non-Siptar population. The
14 Prosecution makes this unsupported statement: "The absence of written
15 orders setting out the task of the non-Albanian population suggest that
16 field commanders issued verbal instructions to arm locals and directly
17 organise these groups on the ground." Absolutely no support in the
18 evidence for that, none. The transcript reference about it speaks only
19 of the ability to issue tasks to secure certain facilities or features
20 and roads, nothing more. Gergar, who was the one who testified about
21 this, said there weren't even any non-armed Siptars in his whole area of
22 responsibility, so he never even encountered the possibility of having
23 them guard roads or certain facilities or features, but that's all they
24 were ever intended to do in the first place. And again this is another
25 one of these red herrings, another one of these puffs of smoke that's
Page 27196
1 being blown your way. Where in the record is there evidence that crimes
2 were committed by these people? None. And arming them is not a crime.
3 It only becomes a crime if you arm them with intent to go and commit
4 crimes and order them to do so and they go do it, and that's not here.
5 If you just take the allegations that are made by the Prosecutor
6 and turn them over and say so what was supposed to happen then, they get
7 silly at times.
8 You've heard about Pavkovic failed to report. Well, failed to
9 report what? In the first place, they admit that it had no effect.
10 Paragraph 740: "Despite failures in reporting by the 3rd Army command,
11 Ojdanic received the relevant information from other sources." So it
12 made no deference according to the Prosecution. And if it made no
13 difference, then it makes no difference to you. It's totally irrelevant.
14 I want to talk about, Judge Chowhan, your question to Mr. Sepenuk
15 about this reporting issue a little bit. You talked about the Louise
16 Arbour letter, for instance. I think it's really important to understand
17 that that letter was sent on the 26th of March, the second day of the
18 war. There is no way Louise Arbour could have had any concrete evidence
19 about what was going on in Kosovo on the 26th of March. No way.
20 The Prosecution in fact refers to it as a notice from Arbour
21 basically saying, please understand we're paying attention, and if war
22 crimes are committed down there, we're going to probably do something
23 about it, and that's all that was.
24 The other thing that's -- that's important with regard to this
25 issue of reporting, Judge and Judges, the -- the duty to report with
Page 27197
1 regard to crimes is a duty to report to the military prosecutors. That's
2 who those are supposed to be reported to. That's what the law says and
3 that's what all the witnesses told you. The crimes are to be reported to
4 the prosecutors. The brigade commander is to report to the prosecutor.
5 The brigade intelligence officer is to report to the prosecutor. The
6 brigade security officers are to report to the prosecutor. And
7 Vasiljevic and Farkas basically told you that, that what they learned was
8 that the security officers at the brigade level were dealing with these
9 crimes. They were being properly prosecuted, and they thought as long as
10 they were taking care of it without any problem, they didn't have any
11 obligation to report. Well, if they didn't report, then it didn't go up
12 the security organ chain of command, which was a chain of reporting that
13 existed, and you'll see it in our brief. There was a security organ
14 chain separate from the army chain and outside the army chain, so they
15 should have been reporting up that chain and they weren't. But that was
16 their job. Their job was dealing with crimes and reporting those crimes
17 to the military courts and reporting about those.
18 What the combat reports were designed to report and what they
19 were reporting at the order of General Pavkovic was the work of the
20 military prosecutor's offices and the military courts and you'll see, and
21 I've brought it up before with you, you'll see 3rd Army combat report
22 after combat report after combat report which contains a paragraph on the
23 work of the military prosecutor's office and the military courts, and
24 that's what was required to be reported in the combat reports and that's
25 what was reported. So there wasn't any failure there either.
Page 27198
1 And there's absolutely no evidence in this case that at any time
2 there was an abandonment of the Prosecution of war crimes. At no time
3 did the military prosecutor say, oh, we're not going to prosecute any
4 more. We're through prosecuting. We're done with this. What happened
5 was this war ended. The Serbs had to leave Kosovo. A lot of the cases,
6 because people were then leaving the military, had to be turned over to
7 civilian courts. There was substantial chaos through that period, but
8 you'll see if you look at the history since the war that there have been
9 many, many prosecutions in civilian courts of crimes that were committed
10 by soldiers in Kosovo during this war. So the Serbs never stopped
11 prosecuting and never withheld prosecutions. They continued doing it.
12 The allegation that Pavkovic didn't report these kind of things
13 when he knew about them is defeated to some extent by the Prosecution's
14 own brief. You know, when they're arguing against one of the defendants
15 they sometimes give you favourable evidence with regard to another one.
16 In paragraph 711 they're talking about Sainovic, and they say:
17 "Pavkovic said that he'd informed Sainovic that he'd seen a group of
18 Skorpions and Boca in Prolom Banja wearing NATO type uniforms and the
19 insignia of the SAJ. Pavkovic said he'd ordered military organs to
20 establish responsibility in respect to the bodies disinterred at Izbica.
21 THE INTERPRETER: Kindly slow down for the interpreters.
22 MR. ACKERMAN: And he had informed Sainovic of this. So there's
23 Pavkovic when he knows something reporting it all the way up to Sainovic.
24 Paragraph 555: "The necessary and reasonable measures to prevent
25 or punish which a superior must take are those measures that are within
Page 27199
1 his material possibility to be evaluated on a case-by-case basis. In
2 essence it is a commander's degree of effective control, his material
3 ability which will guide the Trial Chamber in determining whether he
4 reasonably took the measures required either to prevent the crime or to
5 punish the perpetrator. Generally speaking, necessary measures are the
6 measures appropriate for the superior to discharge his obligation showing
7 that he genuinely tried, genuinely tried to prevent or punish and
8 reasonable measures are those reasonably falling within the material
9 powers of the superior."
10 Now, you know, that is almost a description of General Pavkovic
11 and who he is and what he did. He squarely fits in this category of
12 person that they're describing.
13 There are, I think, 27 orders from Pavkovic that were admitted in
14 evidence in this case where he is ordering adherence to the laws of war,
15 ordering adherence to the rules of war and suggesting that failure to
16 adhere will result in swift and sure punishment. Twenty-seven times.
17 Now, should he have done it 28 times? Is that the Prosecution's
18 position? Or 30? What if he'd only done it 15? Would that maybe have
19 made him guilty? Who knows. But I don't -- I don't think if you look at
20 any other military commander in his position in the time-frame that this
21 operated in that you would find 27 such orders issued by that commander.
22 I don't think that's -- I think that's extraordinary. It's an
23 extraordinary effort to prevent and punish.
24 Your Honours, I think -- I think I could go ahead and break now
25 if you want. I'll stay on this prevention and punishment thing for a
Page 27200
1 little bit longer and maybe it's more than 10 minutes, so it's up to you.
2 JUDGE BONOMY: All right. We'll adjourn now, Mr. Ackerman, and
3 we will resume at 1.45.
4 --- Luncheon recess taken at 12.45 p.m.
5 --- On resuming at 1.47 p.m.
6 JUDGE BONOMY: Mr. Ackerman.
7 MR. ACKERMAN: Thank you, Your Honour. I hope everyone enjoyed
8 their lunch. I did.
9 I'm a little sleepy, yes, Mr. Milutinovic, I am.
10 My colleagues told me I need to clarify one of the things I'd
11 talked to you about just a little bit. I talked to you about the 27
12 orders that Pavkovic issued regarding adherence to the laws of war, and I
13 know I mentioned earlier, I think I did, that one of the reasons for that
14 number was new recruits were coming in all the time and he wanted to make
15 sure that they were advised.
16 Another part of that is that he was getting also orders coming
17 down from General Perisic or General Ojdanic or General Samardzic to that
18 effect that he was simply passing on in accordance with his
19 responsibilities. So that effort was not just being made by Pavkovic, it
20 was an effort that was going all up the line in the VJ, and so I think
21 that clarifies that a bit, I hope.
22 Now, paragraph 833, the Prosecution tells you with some alarm
23 that Gojevic testified that only 12 per cent of the crimes prosecuted by
24 the military courts related to war crimes, crimes against life and limb,
25 the types of crimes charged in the indictment, and I say to you I think
Page 27201
1 that is a high number, because most of what was going on that was being
2 dealt with by the courts were the desertions and the failures to report
3 and things of that nature. So if 12 per cent of the things they were
4 prosecuting were crimes that were war crimes, could be seen as war
5 crimes, crimes such as murder and those kinds of things, I think that's a
6 high number and shows that the job was being done extremely well,
7 especially when you consider that this all happened in a very compressed
8 little period of time, and look how long it's taken us to get this case
9 to trial. How many years has it been since the events happened in Kosovo
10 before we got this case to trial, before the Prosecutor was able to get
11 this case to trial. So the fact that they didn't try everybody within
12 the 78 days of the war is meaningless. And they couldn't have done it.
13 It's not possible.
14 Paragraph 836: "Following his visit to Kosovo in June 1999,
15 Farkas personally informed Ojdanic of this bottleneck in reporting.
16 While Farkas testified that the measures were taken to punish
17 perpetrators and the issue was simply the lack of reporting, then they
18 say this is not credible in light of the disproportionally small number
19 of prosecutions for serious crimes against civilians given the scale and
20 type of the crimes alleged in the indictment."
21 The same argument. Looks to me like they were doing a really
22 good job if they were doing 12 per cent.
23 We talk about -- the Prosecution talks about, you know, these
24 people being replaced because they would do the bidding of Milosevic.
25 Two people who were brought into the situation by Milosevic are two of
Page 27202
1 the people the Prosecution relies on fairly heavily, and that's
2 Vasiljevic and Farkas. They were both brought in by Milosevic. Were
3 they brought in because they were willing to do his bidding, as they say,
4 what regard to some of these other people, willing to carry out the JCE?
5 If so, why aren't they sitting back here behind us also?
6 These are people that were brought in by Milosevic that were sent
7 down to look into the matter by Ojdanic and came back and reported
8 exactly what they saw. There's no argument they had special
9 relationships with Milosevic or that they were his cronies or they were
10 covering for anybody. And when you are a military commander at the
11 levels of Pavkovic and Ojdanic, you send people like that down to
12 investigate things for you because you trust them to do it. You choose
13 people you trust to do it, and there's no indication in this case that
14 Vasiljevic and Farkas were not trustworthy in that regard. And when they
15 come back and report to you, you're entitled to believe those reports.
16 You're entitled to accept those reports. You certainly would accept them
17 over what some journalist somewhere writes because he's been sitting in
18 Brussels
19 going to find is what Jamie Shea says in those stupid briefings in NATO.
20 Paragraph 900, they're talking about Pavkovic's awareness of the
21 commission of crimes. They say Pavkovic was aware of allegations of a
22 mass grave in the area of Izbica in early April 1999. Pavkovic says he
23 heard about it but was informed by his subordinates that no VJ personnel
24 were involved, so he took no other action than reporting it to the SC
25 staff.
Page 27203
1 So he did everything he was supposed to do. What else was he
2 supposed to do? He heard about it. He investigated it. People told him
3 that nobody that he had effective control over was involved. He reported
4 that he had investigated it and what his findings were. And again he's
5 entitled to rely on those people he sends out to do those investigations
6 for him.
7 Paragraph 902: Orders issued by Pavkovic show that he was aware
8 of the criminality of his troops. For example, on 17 April, he issue the
9 following warning: "According to some reports, there have been a number
10 of individual cases where the provisions or the instructions on conduct
11 in combat or those of the international law of war were not fully adhered
12 to in combat operations. Some commands and units have failed to devote
13 the necessary attention to the suppression of incidents related to
14 looting and crime."
15 Exactly what he's supposed to do. When he hears about a
16 situation like that, he sends out an order and he says, "I'm not going to
17 put up with this. This has to end." That's what he's supposed to do.
18 That's what the law requires him to do. That's what he did.
19 903: "In early May, Farkas and other members of the SC staff
20 reviewed reporting within the 3rd Army. Farkas discovered that Pavkovic
21 was receiving information about the criminal behaviour of his
22 subordinates but was not passing that information up the chain. In order
23 to clarify this situation, he met with Pavkovic."
24 Again the OTP has got it wrong. If you look at the testimony,
25 Farkas did not say that Pavkovic was receiving these reports and not
Page 27204
1 passing them on. He said the reports were being made up to the level of
2 brigades but not passed on from there. So the brigade level security
3 people or brigade level commanders were not reporting those things on up
4 into the Pristina Corps and then finally on up to the 3rd Army, up
5 through the Pristina Corps. So Pavkovic couldn't even have known.
6 Here's what Pavkovic says, here is his exact words: "Yes, there
7 were differences and the difference was that some crimes were committed
8 and some of the measures that had been prescribed had not been complied
9 with. Reports in those units up to the level of the brigade were
10 regularly reported to the superior commands, but this information never
11 reached us, so I learned that criminal offences were being committed,
12 crimes, including crimes in this area."
13 And one of course always must wonder what would have been
14 different if they were being prosecuted, if they were being punished, if
15 the trials were going on at the highest rate they could possibly happen,
16 then what relevance is the reporting?
17 Paragraph 920: "As the military justice system was functioning
18 well, according to the Prosecutor, the manifestly inadequate prosecution
19 of perpetrators of crimes against ethnic Albanian civilians was clearly a
20 consequence of the military's failure to report these types of crimes to
21 the military courts."
22 First of all this doesn't implicate Pavkovic. There is no
23 evidence in this case that he was aware of a crime committed by a
24 specific individual or group of individuals that he failed to report to
25 prosecutorial authorities. The OTP has provided no list of persons who
Page 27205
1 committed crimes against Albanian citizens that have not been prosecuted
2 and prosecutions continue today even as we stand here. For this
3 paragraph to have any relevance in this case and significance against
4 Pavkovic, it was incumbent on the Prosecution to identify persons over
5 whom Pavkovic had effective control who committed crimes who were not
6 prosecuted and to show that Pavkovic had knowledge of these persons and
7 their crimes and did nothing or suppressed that information. No such
8 showing has been made with regard to any crime, not one.
9 I want to talk about the crime base just very briefly because
10 it's pretty heavily covered in our brief and in other briefs that you
11 have before you, but in paragraph 312 the Prosecution talks to you about
12 the rapes that were committed and just makes this statement: "The rapes
13 were not isolated acts committed by individuals but were intended to
14 terrorise the population and push people to flee their homes." There's
15 absolutely no evidence that would support such a statement. Of course
16 there were rapes. You're dealing with -- you know, just look at any war.
17 You're dealing with young soldiers, not pillars of society especially,
18 and these kinds of things just happen no matter what you do to try to
19 keep them from happening, and frequently what they are is isolated
20 indents that have nothing to do with the war itself but just
21 out-of-control individual people. And to make that stick to anybody in
22 this case, they have to go beyond just proving that rapes occurred.
23 I abhor rapes. They shouldn't happen, but that doesn't mean that
24 they become war crimes just because they do.
25 313: MUP and VJ seized the identification documents from the
Page 27206
1 refugees in order to make it impossible for them to return to Kosovo.
2 First of all, the seizure of documents was not a uniform thing,
3 as you know. Obviously not a part of any plan or it would have been
4 uniform, and as you pointed out the first day, Judge Bonomy, and I swear
5 to you I had this in my notes before you pointed it out, Serbs could not
6 have possibly believed that they were going to defeat NATO and thus keep
7 Albanians from returning. That is a silly proposition beyond belief.
8 JUDGE BONOMY: It was a question from me, Mr. Ackerman.
9 MR. ACKERMAN: It was. It was. Yes, it was.
10 JUDGE BONOMY: We'll reach conclusions in due course.
11 MR. ACKERMAN: I'm sorry if I suggested it was a conclusion. I
12 didn't mean to do that. Perhaps some individual half drunk people
13 standing at the border thought it would be a really cool idea to take
14 away identity documents, you know, kind of a if you don't like Serbia
15 then you don't have any right to have Serbian identity documents, but
16 there wasn't any organised effort to pull that off or it would have been
17 done a little better.
18 JUDGE BONOMY: Just a comment on this. When -- when Mr. Hannis
19 comes to respond, it might assist us if he's able to identify who, if
20 any, among the witnesses actually lost their documents. I appreciate
21 there's plenty of evidence about this activity, but I'm not sure that any
22 who actually gave evidence lost documents. There may have been some.
23 Mr. Ackerman.
24 MR. ACKERMAN: You know, I told you a little earlier that -- that
25 one way to look at an allegation made by the Prosecution is just turn it
Page 27207
1 over and look at the other side of it. Ponder what would have happened
2 in this case if the Serbs had decided, "We better not let anybody leave
3 Kosovo. We better close the borders and keep them all here or they'll
4 suggest that we are guilty of deportation." So they closed the borders
5 and keep all the Albanians in the country.
6 JUDGE BONOMY: Sorry, Mr. Ackerman. Please continue.
7 MR. ACKERMAN: No problem. Keep all the Albanians in the country
8 while NATO bombs are falling down on their heads and several of them wind
9 up getting killed. Then we'd be defending a human shields case, wouldn't
10 we? The Prosecution would say, well, they kept them in the country to
11 use them as human shields. They wouldn't let them go to safety.
12 Frankly, I see nothing wrong with the Albanians being allowed to
13 leave that country, even being encouraged by some to leave that country
14 because there was bombing going on. It was dangerous. It was not a safe
15 place to be. And so you get away until it's over and then you come back.
16 I think there's 2 million people that have left Iraq. Nobody
17 made them leave. Thousands and thousands left Ossetia when the Georgians
18 decided to go in there. They're now starting to return even today. You
19 just don't have wars where bombs are being dropped where you don't have
20 refugees. It just doesn't happen. People are people, people get scared.
21 They try to get away, they want to run away, they want to get away from
22 what's happening.
23 There is no crime regarding the passage of the Albanians across
24 the border. There was no deportation. It was clearly the safest thing,
25 considering what was happening. And everyone knew when the war was over
Page 27208
1 they would be coming back, those who wanted to. Some want to stay in
2 other countries and that's where they are.
3 Paragraph 318 is where the Prosecution starts going through the
4 crime base, the evidence regarding the crime base. Frequently what you
5 see in there is the phrase that this was done -- this was committed by
6 the forces of FRY and Serbia
7 control over the forces of FRY and Serbia
8 When the Prosecution says forces of FRY and Serbia, what they are saying
9 to you is it was committed by unidentified persons. We don't know who
10 they were, so we'll call them forces of FRY and Serbia. And that may
11 even be wrong.
12 Look at the one incident we talked about today, that Norman
13 talked about today that they had in their brief about these people being
14 killed and it was finally discovered it was done by civilians and
15 civilians were prosecuted for it. And I suppose if we didn't know who
16 they were, then the Prosecution would call them forces of FRY and Serbia
17 In other words, unidentified persons.
18 362: The beginning of the joint VJ/MUP operations coincide with
19 the crimes committed in the Prizren area and with attacks on the villages
20 of the municipality, and then this sentence: There simply were no other
21 significant armed forces in that area at the time the crimes in the
22 indictment were committed." No support for that statement at all. How
23 would they know that? They weren't there. They presented no evidence
24 about it.
25 627: "The mass killings and other crimes committed in Kosovo in
Page 27209
1 1998 and 1999 were of such magnitude and covered such a wide area that
2 they could not be kept secret and were widely known."
3 Well, I don't know of any evidence that they were widely known.
4 I think most of them were discovered after the war was over when they
5 were able to get in and talk to witnesses. I don't think there was any
6 widely known about it. There's certainly no evidence of that.
7 In the initial arguments of the Prosecutor, Ms. Kravetz was
8 telling you about the trains from Pristina, about people being
9 transferred by trains from -- from Pristina, I'm sorry. She says, this
10 is her language: "These civilians were transported by train to the
11 Macedonian border, and as we've heard from several witnesses, including
12 Mr. Bucaliu who worked at the Urosevac train station during the last week
13 of March and going into the first week of April, the frequency of trains
14 travel from Pristina to Orahovac and on to the Macedonian border was
15 increased and so were the number of cars on the trains in order to be
16 able to deport larger numbers of people out of the province."
17 Again not true. Bucaliu's testimony on 8 September on
18 cross-examination by my colleague Mr. Aleksic, Judge Bonomy asked him
19 what he was -- why he was going into this since there was a log, and
20 Mr. Aleksic says he is he trying to prove that in that period 25 March to
21 3 April nothing was happening. The trains were not operating for five
22 days and after that, there was only one train in two days. There was not
23 a major increase in terms of trains, and Judge Bonomy says, well, you can
24 just make those submissions in argument. I don't think anyone's arguing
25 with you about that. And Aleksic says thank you and Judge Bonomy says,
Page 27210
1 well, carry on with your question so he does. And he says, Mr. Bucaliu,
2 in this document that you explained to us in detail there's no
3 information about the number of passengers and number of train cars; is
4 that right?
5 "A. Unfortunately, yes, it's true. There's no number for the
6 carriages and for the passengers."
7 Ms. Kravetz told you on page 14 of the first day the Defence have
8 advanced several different possible explanations as to why the population
9 left. We heard that the arguments in the sense that the population left
10 because there were NATO bombing, the KLA was forcing them to flee, and we
11 heard arguments that they were fleeing because there was fighting going
12 on. We say that these reasons do not explain why the population left.
13 Well, we sat here at 98 bis and heard Mr. Hannis tell us, 12594 in the
14 transcript, "We're not saying that some of these people didn't leave
15 because of the bombing. We're not saying that some of these people
16 didn't leave their villages because they were told to do so by the KLA."
17 So it wasn't just Defence that was making those arguments. It was
18 Mr. Hannis himself who was telling you that people were leaving because
19 of NATO bombing and leaving because of being told to do so by the KLA.
20 The problem, of course, is we don't have any numbers as to how
21 many left because of NATO bombing and how many left because they were
22 told to do so by the KLA, and we don't know if that is a number that
23 exceeds 10 even for sure, because to even believe it exceeds 10, you have
24 to accept the testimony of people who might have a reason for telling you
25 that story.
Page 27211
1 At page 3510 of the first day's transcript, I think it was the
2 first day, yeah it was, Judge Bonomy asked Mr. Stamp what he was saying
3 about the responsibility for the Meja killings. Mr. Stamp responded that
4 it was the evidence of Pnishi and Peraj and Dedaj that people were killed
5 by both the VJ and the MUP, and this is simply not the evidence.
6 Paragraph 586 of our final brief details that evidence. Pnishi did not
7 describe VJ as committing any killings. Peraj says the VJ was not
8 involved in killings, not even near where the bodies were found. The
9 only witness who even begins to implicate VJ was Witness Dedaj, who told
10 at least three different stories at different times about what she'd
11 observed and whose evidence I'd suggest to you is not capable of being
12 accepted, certainly not as proof beyond a reasonable doubt.
13 Mostly from Prosecutor Stamp but perhaps from others you kept
14 hearing the phrase massive crimes, the massive crimes that were committed
15 in Kosovo. Now, Your Honours, I'm familiar with what happened in Rwanda
16 where a million people were killed, at least. I'd call that a massive
17 crime. I'm familiar with what happened at Srebrenica where maybe 8.000
18 people were killed. I'd call that a massive crime. But I think in the
19 context of this case, massive crime is a major exaggeration, major
20 exaggeration. It doesn't apply to Kosovo. Of course there were crimes.
21 Every war has crimes, but this was not a case of massive crimes.
22 I want to talk about the Joint Command for just a moment.
23 Paragraph 201, the Prosecution says "Although the composition of the
24 Joint Command changed in 1999 as Minic and Matkovic were no longer in
25 Kosovo, Lukic, Pavkovic and Lazarevic remained members of the joint
Page 27212
1 command." There's absolutely no evidence to support that. They don't
2 even -- they don't even put a citation there to anything. They just say
3 it.
4 Even if there was an active frequently meeting Joint Command in
5 1999, and I suggest there was not, but even if there was, you must
6 understand that Pavkovic was no longer the commander of the Pristina
7 Corps. His participation in that Joint Command in 1998 was as commander
8 of the Pristina Corps. I think Samardzic maybe visited those meetings
9 twice throughout that entire period. I haven't counted it up. But once
10 he went up to the 3rd Army it would have not made sense for him to be
11 part of those meetings because they were tactical, they weren't
12 strategic, and he was now a strategic officer. But that -- that
13 statement that they remain members of the Joint Command is just simply
14 unsupported. The only thing that could even remotely support it is when
15 Vasiljevic says he went down there in June and went to a meeting and
16 Pavkovic was there and Lazarevic was there, but that doesn't necessarily
17 support that they were members. Pavkovic could have been doing what
18 Samardzic did on a couple of occasions and that is attend those meetings,
19 and he happened to be in the area.
20 Paragraph 228 the Prosecution argues this to you about the Joint
21 Command: "Once authority to proceed was issued by the Joint Command,
22 they would each task their subordinates to provide the required units and
23 to liaise with their respective counterparts in the VJ and MUP at the VJ
24 brigade or PJP detachment level where the ground level details of the
25 plan would be finalised."
Page 27213
1 I don't think that's the paragraph I want to refer to. Somewhere
2 here I think it says that Pavkovic would carry out the orders of the
3 Joint Command and that's the part that I'm trying to refer to. And I
4 think it's important that you pay particular attention to Exhibit 4D91,
5 which I think is one of the most significant documents in this case, as
6 Mr. Hannis would say, one of my favourite documents. This is the -- the
7 order from Samardzic to Pavkovic of 30 July 1998, ordering him --
8 detailing his duties with regard to this Joint Command. He tells him
9 that prior going -- to going to the meetings, he must tell the chief of
10 staff about any requests, possible requests, and explain proposals for
11 the engagement of forces with reinforcements. And then after he gets
12 consent to agree to some of those proposals or disagree, whatever, he
13 then goes to the meeting, but he goes to the meeting armed with approval
14 from the chief of staff who Samardzic has delegated to take over his
15 duties there in the forward command post.
16 Then after the meeting he's required to report back to the army
17 chief of staff on the proposals that have been accepted or any other
18 subsequent requests which diverge from the proposal and shall ask him for
19 permission relating to those requests. And then he has to inform the
20 Joint Command of any decisions made by the Chief of Staff regarding those
21 requests.
22 So he was never allowed to do anything that was suggested or
23 proposed by the Joint Command until he got approval from General
24 Samardzic or his deputy, the chief of staff. That's what that order
25 says, and that's a really important order.
Page 27214
1 I think Mr. Fila covered this, but Mr. Stamp elevated Djakovic to
2 membership in the Joint Command and there is simply no evidence that he
3 was a member. He was there taking notes. If you -- if you look at the
4 beginnings of those meetings where it lists the members present, Djakovic
5 is never listed as a member present. He wasn't a member. He didn't say
6 he was a member.
7 On day two of arguments is when Mr. Hannis talked a lot about the
8 Joint Command as if there's something sinister about this Joint Command,
9 if it's something criminal and shady and sinister, and there isn't. In
10 the United States we call it the Joint Chiefs Of Staff. In your
11 countries your military organisations all have a comparable organisation,
12 because forces must coordinate their activities. The United States
13 when being supported by the United States Air Force, needs to talk to the
14 air force about what they're going to do and when they're going to do it
15 and how they're going to do it. They have to have joint meetings,
16 coordination meetings. Every military organisation in the world has a
17 coordinating body similar to what was created here to deal with this war.
18 JUDGE BONOMY: And I imagine the membership of any such body
19 would be recognised, Mr. Ackerman, but here we have a dispute about
20 whether people are members or not and certainly some accused contending
21 that there is no such identifiable body. It's not a straightforward
22 comparison in the cases of some of the accused here.
23 MR. ACKERMAN: I only speak for one accused, Your Honour, and I
24 speak from what I see and what I think the evidence shows.
25 JUDGE BONOMY: But it's a mistake to -- to try to oversimplify it
Page 27215
1 to us, those with no experience of -- of direct experience of the work in
2 Serbia
3 experience seem not to have the same views about its nature. I think
4 that -- I use the word "nature" in a more general sense than a more
5 specific term.
6 MR. ACKERMAN: It's difficult for me to hold my tongue, but I
7 will. There's something I'd love to say to you that I don't think I
8 should. But I will say this: You have to understand that -- that the
9 Federal Republic of Yugoslavia was in the process of creating itself when
10 this all started happening. It had been Yugoslavia, and then it was no
11 longer Yugoslavia
12 Montenegro
13 their constitution. They had to rewrite everything. And you don't
14 always get it right when you're just starting brand new. You do make
15 mistakes when you're starting brand new. That accounts for why the Rules
16 of Procedure of this Tribunal have been amended 37 times or something
17 because they didn't get it right the first time. And you can find
18 anomalies in those first rules. You'd say how can this be. Well, it
19 could be because it was a brand new organisation just starting out and
20 they just didn't quite get it right the first time. So you have to
21 understand that this was a work in progress, this creation of the Federal
22 Republic of Yugoslavia
23 rules of the SDC and the constitution regarding the SDC seem to be in
24 some conflict, because it was still being created, and that was why there
25 was nothing within the security forces like we might see in our countries
Page 27216
1 like the Joint Chiefs Of Staff in the United States because they didn't
2 have an opportunity to consider how they were going to deal with
3 coordination between all the different parts of the security forces
4 there. So it was an ad hoc thing, I think, that was put together here at
5 the last minute when they realised that they had to keep from shooting
6 even other. And how it was organised and who was in it and what it means
7 in this case remains of course to Your Honours to figure out and
8 understand, but I don't think it's a sinister body in any way. There's
9 no evidence. Read those -- read those notes all you want. There's no
10 evidence that they were carrying out some of a JCE. There's no evidence
11 that they were planning the commission of any crimes.
12 And my colleague Aleksic suggests that you also keep firmly in
13 mind that you're dealing with -- with two sovereignties here to some
14 extent. The VJ was a federal institution under federal control, the MUP
15 was a state institution under state control, under Serbia rather than
16 FRY.
17 As to the continuation of the Joint Command into 1999, the
18 Prosecution has referred to -- to that meeting where everybody is talking
19 about how and whether it's going to continue and what form it should
20 continue into 1999 and so forth. Just remember that General Pavkovic,
21 P1468, page 160 said it was his view that the Joint Command should cease
22 to exist.
23 I'm going now to paragraph 891. By late March 1999, Pavkovic was
24 aware of the mass movement of civilians. He also was aware that identity
25 documents were being confiscated from ethnic Albanians who were leaving
Page 27217
1 the territory. The first thing I will say about that is mass movement of
2 civilians does not automatically equate with crime. NATO was bombing in
3 March. Common sense tells us that people flee from bombing and common
4 sense would have told Pavkovic that in 1999 also.
5 Second is his awareness of the confiscation of identity
6 documents. The OTP cites his statement but fails to mention that he went
7 on to say that after he learned of it, he investigated it and learned
8 that the army was not involved in it at all. The army was not the border
9 police. It's clear that he was determined to make an end to it if it was
10 being done by persons over whom he had effective control, but it was not.
11 Paragraph 893. It's under the heading Pavkovic knew of the
12 crimes committed by forces of the FRY and Serbia operating in Kosovo in
13 1999, and there's a report that 32 criminal reports were filed against
14 perpetrators of crimes on the preceding day. That's a report from the
15 courts, and those are the reports that Pavkovic ordered that he receive,
16 and what you're seeing there is that crimes are being processed, being
17 prosecuted. Criminal reports are being filed. That means they're being
18 referred to the courts, and they're saying that's evidence against
19 Pavkovic, but it's actually evidence for Pavkovic if it's being done.
20 There's an argument there that while the military's reporting
21 crimes of attempted murder and murder and abuse and things like that, the
22 report that goes up about that from the 3rd Army doesn't say that, and
23 you know, those are obviously two different reports, two different
24 situations. Just because they both happened to be 32 criminal reports,
25 they're talking about totally different offences, and it wouldn't make
Page 27218
1 any sense for anybody to do that to try to cover anything up, anyhow,
2 because the courts were reporting straight up to the General Staff on
3 their own outside the normal chain of command anyhow.
4 There is an allegation, I can't tell you what paragraph --
5 JUDGE BONOMY: Mr. Ackerman, just very briefly, could you clarify
6 one reference for us, P1468, you referred to General Pavkovic's view that
7 the Joint Command should cease to exist, and you gave a page reference
8 from P1468. Could you give us that again? The transcript says 160, but
9 there aren't 160 pages and I thought you said 60. But it's not on page
10 60 either.
11 MR. ACKERMAN: My note says 160.
12 JUDGE BONOMY: 160.
13 MR. ACKERMAN: But I don't know if there's 160 pages. Mr. Hannis
14 talked about it so --
15 MR. HANNIS: I think there were 163 or 164 pages in the English
16 and it's either 160 or 161.
17 JUDGE BONOMY: So you're referring to the English then. All
18 right. Fine. Thank you.
19 MR. ACKERMAN: There's an allegation in the Prosecution's brief
20 and I seem to have misplaced it, but it deals with the allegation that --
21 that Pavkovic knew about crimes being committed by volunteers in --
22 throughout the brigades or something like that. If I don't have the
23 exact language here, I don't really want to rely on it, but it refers to
24 a document, and what that document shows, it's P1938, on page 2, is on 1
25 April 1999, after only a few days, 25 volunteers were returned from the
Page 27219
1 Pristina Corps. Seven were detained for rebellion, killing, robbery,
2 rape, insubordination and desertion. Two killings took place, one
3 volunteer and one woman volunteer were killed.
4 Now, this doesn't show some wide knowledge of crimes by
5 volunteers. It's one group of volunteers in which a few people were
6 causing trouble, seven, actually, and they were all returned back and
7 taken out of service. So what was done there is exactly what should have
8 been done there, and that's not evidence of any crime on the part of the
9 General Pavkovic.
10 Paragraph 202, and this comes from P1281, page 2, the police had
11 their own headquarters headed by their own officers. This is Pavkovic.
12 And the cooperation with the army was coordinated through political
13 actors in Joint Command formed for the purpose. Therefore, the
14 information to what police force units were doing can best be provided by
15 the police commanders and the members of the Joint Command in charge of
16 them. And the Prosecution cites that as evidence against Pavkovic but
17 what it really shows is that Pavkovic had no control over members of the
18 MUP. They were not persons that he exercised effective control over in
19 any way.
20 Paragraph 870: Pavkovic used his subordinate units to commit
21 crimes. There's no evidence of that. There's no evidence he used his
22 subordinate units to commit crimes. Just because crimes may have been
23 committed doesn't prove this kind of a statement. They need to prove
24 knowledge and intent. We know that American and British soldiers
25 committed crimes in Iraq
Page 27220
1 and American generals used them to commit crimes. You'd have to show
2 that they intended for them to commit crimes, that they sent them there
3 to commit crimes, not just that they did it. If -- if commission of
4 crimes all by itself was enough evidence to make leaders and commanders
5 guilty, then all of our military commanders would be in gaol and we would
6 have a problem with our armies with no commanders, you know.
7 I'm going to try to finish up, Your Honour, because I think I'm
8 out of time.
9 One matter that I think is interesting and I think significant
10 also, paragraph 288. The Prosecution points out the evidence of
11 Baraybar, who concludes at that gunshot injuries were inflicted on
12 persons that were not participating in combat activity. Mr. Stamp talked
13 to you about that in his arguments the other day.
14 When I saw that it just struck me how could you possibly know
15 that. How could you know that somebody with a gunshot wound was not
16 engaged in combat activity, so I looked into it. The problem with that
17 testimony is that Baraybar based his findings on statistics from other
18 combat situations and on two kind of interesting variables.
19 First he said that if these persons had been in combat there
20 should be been more shrapnel injuries and less gunshot injuries. Well,
21 yeah, that would be true in a maybe typical war situation where weapons
22 other than rifles are being used, but if it's a war situation where only
23 rifles are being used, then it has no meaning at all. Rifles don't
24 produce shrapnel. So as a result, if it's only rifles, there would be
25 few or no shrapnel injuries in a pure rifle fight and that wouldn't prove
Page 27221
1 that these were persons who were killed not involved in combat
2 activities.
3 The second thing he said, and his words are interesting, he said
4 you usually don't see the types of gunshot wounds found here in combat
5 situations where the fighters are wearing body armour. It is the case
6 that KLA often fought out of uniform, you know that, and that they
7 weren't wearing body armour. They didn't have all that -- well, all that
8 fancy body armour and all that kind of fancy equipment and stuff. So
9 again taking the statistics from other wars in other conditions with
10 other uniforms and other equipment and trying to apply it to some bodies
11 that he's looking at that have bullet holes in them and say he can draw
12 meaning from that is just ridiculous and it shouldn't be accepted by you.
13 So while the conclusion is maybe statistically correct regarding
14 what he looked at from statistics from other wars, it has no meaning
15 here. It will certainly not support the statement "The inescapable
16 inference is that forces of the FRY and Serbia murdered these persons
17 during the execution of JCE," which is what the Prosecution tells you.
18 It's far from an inescapable inference. And as I said, forces of FRY and
19 Serbia
20 the cause of any kind of a JCE.
21 In paragraph 271 the Prosecution says paramilitaries were engaged
22 in combat operations with VJ units. I think there's no evidence of that.
23 THE INTERPRETER: Could you kindly slow down for the
24 interpreters, please. Thank you.
25 MR. ACKERMAN: Paragraph 850, and this is an example of why I
Page 27222
1 tell you to pay attention to the footnotes: "During the indictment
2 period Pavkovic reviewed the work, order and discipline of all units of
3 the Pristina Corps and those subordinated to it. Footnote 2129 referring
4 to P1078."
5 P1078, Your Honours, is a report for the year 1998. It says
6 absolutely nothing about 1999. So it didn't have anything to do with
7 during the indictment period.
8 Paragraph 888: "Another frequent topic at Joint Command meetings
9 was arson," and they mention one statement by Sainovic in August, and I
10 thought gee, that doesn't sound like it being a frequent topic. So I did
11 a search as best that I could, and I found there were actually four such
12 references in the 164 pages of those notes, and I don't know whether that
13 makes it a frequent topic or not, but what's important is that every time
14 it was mentioned, it was mentioned in the context of this is outrageous,
15 this can't happen, this must stop, we can't permit this. Not you're not
16 burning enough houses, go burn some more. So it's preventive language
17 that you're seeing, not permissive language.
18 That entire paragraph, by the way, of the OTP brief doesn't speak
19 of plans to commit crimes but efforts to prevent crimes.
20 Paragraph 271 of their brief shows Pavkovic ordering people to
21 take care in anti-terrorist operations so as not to damage residential
22 buildings, and that order was issued on the same day that Sainovic
23 mentions there was a problem in that regard.
24 I think the Pavkovic order probably went out before Sainovic made
25 that remark since those meetings were in the evening.
Page 27223
1 Paragraph 905. Paragraph 905 the Prosecution is talking about
2 the indictment against Milosevic, Milutinovic, Sainovic, Ojdanic being
3 made public, contained detailed allegations about deportations, forcible
4 transfers, rapes, murders and so forth and that this put Pavkovic on
5 notice of the widespread nature of alleged war crimes. And then they say
6 the next day Pavkovic got a report from Lazarevic about the failure of
7 MUP to be resubordinated to the VJ, and then the following day Pavkovic
8 wrote his report, P1459, which is the subject of some dispute, but the
9 Prosecutor's position on that is that was written in response to Pavkovic
10 learning about the indictment against Milosevic et al., and I suggest to
11 you that that's simply not true. The indictment against Milosevic et al.
12 was not made public until 27 May. If you see our brief at paragraph 240
13 you'll see there was a court order entered in that case ordering that it
14 not be made public until 27 May and we've referred to it in our brief.
15 I've come, Your Honours, now to a page that it says conclusions
16 on the top of it. I want to -- before I go directly into that, the other
17 thing you have to keep in mind, I think, as you review this evidence is
18 that this wasn't a situation like we have here where we can sit around
19 for hours and contemplate things and think about things and make
20 decisions about things and then take another day and think about it
21 again. This -- this stuff all happened in the chaos of war, and the
22 chaos of war is not a place where it's easy to deal with your day-to-day
23 operations, and so of course people made a mistake here and there and of
24 course things got dropped through the cracks because communications
25 weren't always what they should have been. So just in the back of your
Page 27224
1 minds remember the chaos that war brings.
2 I want to for the record adopt some portions of briefs of my
3 colleagues. Milutinovic 117 through 182 -- no, actually 117 through 244
4 of Milutinovic, 12 through 151 of Ojdanic.
5 Now, Your Honours, until Tuesday and Wednesday of this week I'd
6 spent two years believing that what we were trying here was a war crimes
7 case, and then Tuesday and Wednesday I learned that it was something else
8 altogether. It's a case about the misuse of the VJ in Kosovo in 1998, a
9 case about the violation of October agreements. It's a case about
10 failure of reporting. And these are the things we heard as we listened
11 to the Prosecution's final arguments. What we didn't hear was who were
12 the persons who committed the crimes contained in the crime base. Who
13 was their superior? Did that person know they'd committed those crimes?
14 Did that person report it or cover it up? Did General Lazarevic know
15 about it if they were VJ members? Did General Lazarevic tell
16 General Pavkovic? Did General Pavkovic fail to see that it was reported
17 to military prosecutors? That's what makes a war crimes case, and that's
18 not what we heard in this courtroom, ever, not ever.
19 What we heard was massive crimes were committed. The people in
20 this room on the accused bench occupied high positions. General Pavkovic
21 took prevention measures but not enough. General Pavkovic took
22 punishment measures but not enough. That's not a war crimes case. It's
23 not a case at all.
24 Mr. Hannis wants you to apply Occam's razor, look at the evidence
25 and the simplest explanation is the right one, the one you should adopt,
Page 27225
1 mostly likely alternative he wants you to adopt, and I know as I said he
2 wishes that's what the law was.
3 Mr. Hannis said you should follow the maxim of if it looks like a
4 duck and walks like a duck and quacks like a duck, it must be a duck.
5 Well, I was -- I'll tell Hannis a story. I was in front of a crusty old
6 county court judge in Texas
7 evidence in a case, and this is a guy who had been on the bench for years
8 and smoked cigars on the bench and didn't wear a robe, and the prosecutor
9 on the other side was a young female lawyer, and I argued my motion and
10 she argued their position, and he looked at her and he said, Little Lady,
11 that dog won't hunt, and that was his ruling, and that's what this case
12 is about, Your Honours. This dog won't hunt.
13 That's not evidence here upon which you can convict
14 General Pavkovic. I urge you not to do so. I urge you to do your duty,
15 do what's right and acquit him of all the charges against him.
16 Before I sit down I want to say a thing or two on a kind of
17 personal level. I've had the great privilege of appearing before the
18 Judges of this Tribunal now for 11.5 years, almost as long as Mr. Fila
19 has. I share his feelings about that. It's -- it's a part of my life
20 and a significant part of my life. A fourth of my life as a lawyer has
21 been spent in this court, but I look back on it with a great deal of
22 pride and a great deal of appreciation, and I'd be remiss if I sat down
23 without thanking this Tribunal and its staff, its Judges, its
24 Prosecutors, its translators, all of the people who have taken part in
25 making this just a truly memorable experience for me. You have let me
Page 27226
1 join a very small club, and that includes the four of you up there on
2 this bench today.
3 I was aided in this case by a very able co-counsel,
4 Mr. Aleksandar Aleksic from Belgrade
5 opportunity to be here, and I appreciate all the assistance that he
6 provided to me in this very difficult case.
7 I have to leave The Hague
8 here with you next week, and so this is kind of my last hurrah. You
9 might remember that I once told you that where I really wanted to be was
10 up on a mountain top breathing clean air and having a rest. That's where
11 I'm going. It may not be a mountain top. It might be a golf course, but
12 it will certainly be a place where I'll be able to relax. I just want to
13 invite everybody in this room to come there with me, and all you have to
14 do is come to Texas
15 Thank you.
16 JUDGE BONOMY: Thank you for these submissions, Mr. Ackerman, and
17 since we won't have the opportunity to say anything to you at the end of
18 the case, we thank you for the way in which you have conducted the
19 defence of your client and the dignified way throughout in which you have
20 contributed to what for the Judges, too, has been an extraordinary
21 experience.
22 We shall now proceed --
23 MR. ACKERMAN: Thank you, Your Honour, I appreciate that.
24 JUDGE BONOMY: We should proceed to hear the submissions for
25 Mr. Lazarevic but perhaps you would clarify first of all for us,
Page 27227
1 Mr. Bakrac, whether there would be any prospect of him being here on
2 Monday?
3 MR. BAKRAC: [Interpretation] Your Honour, I still do not know
4 that. My colleague Mr. Cepic and I had planned upon the close of this
5 session to go to visit him. What I do know is that he is still in the
6 detention centre hospital, but I'll be able to fill you in on the details
7 subsequently once I pay a visit to him. But I don't think that there are
8 any problems in us continuing the proceedings, in continuing our work.
9 JUDGE BONOMY: Very well. Please continue with your submissions,
10 Mr. Bakrac.
11 MR. BAKRAC: [Interpretation] Thank you, Your Honour.
12 Good afternoon to all of you, you and everyone else in the
13 courtroom, and I know that especially after Mr. Ackerman's closing
14 arguments at the end it will seem an ordinary phrase, something that more
15 experienced colleagues have said before me, but nonetheless I would like
16 to address the Trial Chamber. It is up to me now, so I would like to
17 express the great honour and privilege and pleasure it's been to defend
18 General Lazarevic before this Tribunal, before this Trial Chamber and in
19 these proceedings. It was also a pleasure and privilege to present
20 before you, although I'm not sure that you -- to be able to hold forth
21 before you, although I'm not sure that you always had the pleasure of
22 listening to what I had to say. But I do sincerely hope that this
23 portion of the courtroom will have the pleasure of hearing your final
24 word and be satisfied by that.
25 Before I go on to my closing arguments, I'd like to inform you
Page 27228
1 that our Defence team has accepted the Prosecution tactics, although we
2 know and believe that it won't be successful at the very end, but anyway,
3 with your permission I'd like to inform you that I'm going to address you
4 with -- by saying -- or responding to Mr. Hannis's closing arguments, and
5 my learned friend Mr. Cepic will be speaking to you on the subject of the
6 brief of the sixth Defence team and crime base details, and so with your
7 permission, at the very end I would like to take the floor again to speak
8 about the state of consciousness of my client, his state of mind, and all
9 the evidence that we have produced and the decision and proposal for
10 judgement.
11 My learned colleagues before me for the most part spoke about a
12 thesis put forward by the Prosecution with respect to the joint criminal
13 enterprise, and so I should just like briefly to add some of my own
14 observations on that subject with respect to the evidence that was
15 presented before this Trial Chamber.
16 The Prosecution claims that the goal of the -- of the joint
17 criminal enterprise was to change the ethnic balance in Kosovo by
18 resorting to criminal means in order to ensure further Serbian control in
19 the territory. Now, apart from a sentence uttered to that effect and a
20 sentence which is found in the indictment and which is echoed in the
21 final brief and the closing arguments, we have not heard from the
22 Prosecution in what way this change in the ethnic balance would ensure
23 further Serbian control over the province. We have not seen the nexus
24 between this undertaking and endeavour to throw out a portion of the
25 Albanian population, to expel the Albanian population, and the further,
Page 27229
1 better easier, or more comprehensive exercise of control over the
2 province. I think the Prosecution was duty-bound to provide us with
3 information of that kind and to explain to us the background, the
4 substance of such a vast criminal enterprise that they allege.
5 Now, I'd like to draw the attention of the Trial Chamber to
6 certain facts, facts which are stipulated by the Prosecution in their
7 written submissions.
8 The Prosecution claims that at the time relevant for this
9 indictment in Kosovo there were about 1.700.000 or 1.800.000 Albanians
10 and that is to be found in paragraph 44 on the Prosecution's final brief.
11 According to the Prosecutor, and this is to be found in paragraph 81 of
12 the indictment, in Kosovo there were between 5 to 10 per cent Serbs.
13 That is to say the ratio between ethnic Albanians and ethnic Serbs in
14 1999 at the time relevant for the indictment was 90 to 10.
15 In his closing arguments of the 20th of August this year,
16 Prosecutor Hannis was very decisive in stating that the Prosecution
17 claims that the intention of the accused was not to expel the entire
18 population but a significant portion, and they also claim that 700.000 to
19 800.000 is that significant portion of the population and that that was
20 precisely the intention of the accused.
21 On the assumption that the claims made by my learned friend
22 Hannis are correct, in this new population constellation in which we
23 would have 1.100.000 Albanians and between 150.000 and 200.000 Serbs, we
24 come to a new ratio of forces, between 80 per cent Albanians and 20 per
25 cent Serbs on the assumption that the Serbs did not leave the province.
Page 27230
1 Now, I would like to raise the following question for the Trial
2 Chamber: In what would way this new ratio of forces substantively alter
3 the ratio of forces which would secure further Serbian control over the
4 province? We have not received an explanation, let alone the fact that
5 there has been no evidence to show that at all. The Prosecution has not
6 provided a shred of evidence to bear that thesis out for us really to be
7 able to see whether or not it was in fact a goal and whether an
8 undertaking existed in the first place.
9 We say that these allegations made by the Prosecutor as to the
10 object of a criminal enterprise or joint criminal enterprise already on
11 first blush are out of the question. There is no sense to them. On the
12 other hand, there are many witnesses and other written evidence presented
13 before this Court which quite obviously create and paint a completely
14 different picture about the reasons that the Kosovo Albanians moved out
15 of the territory and not only them but others too.
16 The Defence dealt with this in greater detail in its final brief
17 in paragraphs 483 up to paragraph 505, and I'd just like to mention some
18 of that evidence now and to point the Trial Chamber to them. For
19 example, a Prosecution witness, Sandra Mitchell, on page 588 of the
20 transcript testified and said that up until the 20th of March, 1999
21 was the acting person in the OSCE mission and that the plan for
22 supervising the refugees was made only on the 22nd of March, because the
23 problem of refugees was one that they did not have up until then. This
24 plan quite obviously if you look at the time period coincides with the
25 intimations of NATO bombing and the departure of the OSCE mission from
Page 27231
1 Kosovo. This witness also adds and says that the Serb civilians also
2 left the province at that same time.
3 Adnan Merovci, another Prosecution witness, testified in this
4 court and said that on the 21st of March he saw refugees moving towards
5 the border, towards Macedonia
6 paragraph 43.
7 Another Prosecution witness, otherwise the chief of staff of the
8 AKM, Bislim Zyrapi, in his testimony on transcript page 5991 to 5992 and
9 5997 to 5998 states that the civilian Albanian population was moving
10 together with the KLA and confirms that he issued an order personally
11 ordering the movement and shifting of the Albanian population from the
12 village of Bellanice on the 1st of April, 1999, that is Prosecution
13 Exhibit number P2457.
14 Another Prosecution witness, General Drewienkiewicz, also
15 testified and said that P680 evidence was correct to the effect that in
16 the region of Djeneral Jankovic the KLA ordered the civilian population
17 to move out, which they did, and this can be found on 7932 page of the
18 transcript.
19 There were many Defence witnesses who testified to these
20 circumstances as well but through -- but because our time is limited I'm
21 just going to mention Milutin Filipovic, for example, and a number of
22 them. He testified that on the territory of Pristina
23 parts there was a distribution of handouts, pamphlets in Albanian in
24 which the KLA called upon the civilian Albanian population to leave
25 Kosovo and Metohija and go in the direction of Albania and Macedonia
Page 27232
1 The transcript page is 11984.
2 All this evidence and all these exhibits lead us to conclude that
3 part of the population left the province because of intimations of a
4 coming NATO bombing or because of pressure and instructions from the KLA
5 whose aim it was to show that there was a humanitarian catastrophe and
6 the responsibility of the Serbs for that catastrophe, and the results of
7 that kind of conduct are quite evident and obvious today.
8 If we bear in mind the standards adopted at this Tribunal to the
9 effect that this kind of thesis put out by the Prosecution can be
10 considered to have been proved if the Prosecution's conclusion is the
11 sole reasonable conclusion that one can draw, we consider that it is
12 quite obvious that the Prosecutor has failed to prove his thesis about
13 the existence of a plan and the existence of a plan to prove it beyond
14 reasonable doubt.
15 In addition to that, in addition to the fact that these exhibits
16 and the evidence shown about what the true reason for the moving out of
17 the Albanian population was, if we look at it, at first glance what makes
18 more sense is this, more sense than the Prosecution thesis and the joint
19 criminal enterprise thesis is -- and that the goal was to change the
20 ethnic balance allegedly to enable Serb control of the province.
21 Here and now I don't wish to deny the fact that there were
22 individuals who to certain -- did say to certain Albanian civilians, go
23 to Albania
24 Mr. Ackerman talked to you about this, because there was a war on and
25 much worse things happened, killings and rapes for example. And it is
Page 27233
1 quite true and to be expected that some individual might have said things
2 like that to Albanians, but they are isolated verbal incidents which
3 in -- can in no way be proof and evidence of the existence of a plan as
4 presented by the Prosecutor.
5 The Prosecutor then goes on to suggest the following: That from
6 the orders of the General Staff of the army of Yugoslavia, Grom 3 of the
7 3rd Army and the Pristina Corps, Grom 3, that from them other orders
8 emanated which under the mask of the struggle to break up the Serb --
9 Siptar terrorists represent a coordinated action on the part of the army
10 of Yugoslavia
11 that the areas in which the fighting took place and the battles took
12 place in fact coincide with the areas in which the alleged crimes
13 happened, the crimes cited in the indictment. And on the basis of that
14 he draws the conclusion that this is clear proof of the existence of a
15 plan.
16 The Defence claims that this thesis put forward by the
17 Prosecution has remained at the level of speculation and surmise and that
18 there are no indicia, no indications or any proof which would show beyond
19 reasonable doubt or which would confirm this position taken by the
20 Prosecution beyond reasonable doubt.
21 Before I continue -- before I continue my presentation on these
22 orders and directives, I'd like to show the Trial Chamber of the
23 contradictions to be found in the closing arguments presented by the
24 Prosecution with the intent of showing these decisions as being a screen
25 behind which crimes were committed. My colleague Mr. Hannis, on page 8
Page 27234
1 of the transcript of the 19th of August, speaking about these orders and
2 the orders which were titled Joint Command for Kosovo and Metohija,
3 stated that ever since World War II, for example, this kind of plan is
4 never written down -- or, rather, never documented, nor is it ever
5 declared orally by any side. However, a little bit before that, on page
6 3 of that same transcript, my learned friend Hannis asserts that
7 Mr. Milosevic, in October 1998, to Generals Naumann and Clark, openly
8 stated that the final solution for the Kosovo problem will be found in
9 the spring by doing the same thing that happened in Drenica in 1946, that
10 is to say will rally them all together and execute them.
11 Now, we're not quite clear, but that seems to be the Prosecution
12 thesis, does it.
13 Now, why, if Mr. Milosevic quite openly told high-ranking NATO
14 officials what the plan was for the spring, why then would these orders
15 be screened for conducting something like that? There is quite obviously
16 a contradiction here in what the Prosecution has presented.
17 The Defence furthermore claims that the stipulated orders of the
18 General Staff of the army of Yugoslavia
19 and the Pristina Corps, for the defence of the country and for fighting
20 the KLA were completely legitimate and legal and that these orders and
21 the orders that emanated from them in no way were used to mask plans that
22 were targeting the Albanian population. There is a lot of evidence to
23 show clearly and unambiguously that this -- it was justified and
24 necessary to elaborate directives and orders of this kind. And the
25 Defence spoke about this in greater detail in paragraphs 605 to 628 of
Page 27235
1 its final brief.
2 Every serious army, every serious organisation, even without the
3 kind of threats that we're going to describe in our further presentation
4 has a defence plan, necessarily has a defence plan, necessarily adopts a
5 defence plan. This building has a plan for evacuation should a fire
6 break out, for instance. So why, as Mr. Hannis would have it, would that
7 be something that was necessarily adopted to mask and hide a plan that
8 was directed against the civilian population?
9 Let me remind you that it was precisely a Prosecution witness,
10 Dusan Loncar, who said that the KLA used the presence of the KVM to
11 reorganise, consolidate, arm and prepare for the struggle against the
12 Serb forces. And the witness added that the KLA very often used
13 civilians as a human shield, principally women and children on page 7617
14 of the transcript and goes on to testify of that while he was in contact
15 with General Drewienkiewicz, what was often mentioned was the forthcoming
16 spring offensive by the KLA and this is to be found on page 7618 of the
17 transcript.
18 Another Prosecution witness Shaun Byrnes testified before this
19 Trial Chamber that all the international observers in Kosovo were
20 generally aware of the fact that the Albanians armed themselves before,
21 during, and after the October agreement. Page 12217 to 12218 of the
22 transcript.
23 Another Prosecution witness, Ciaglinski, confirms that the KLA,
24 during negotiations held in Paris
25 the transcript.
Page 27236
1 Another Prosecution exhibit, P638, for instance, which represents
2 a report of the OSCE mission under the marking DZ 5 of the 8th of
3 January, 1999, shows that the terrorist KLA attacks and the violation of
4 the truth undermined efforts for a political solution to be found to the
5 conflict.
6 Another OSCE mission DZ 16 this time, Exhibit P649, which
7 represents information from a meeting of the liaison officers with
8 representatives of the KLA, resulted in the following conclusion: That
9 regardless of what was to happen in the next round of the peace
10 negotiations, there was the clear readiness on the part of the KLA to
11 continue their fighting.
12 There are also numerous reports coming from the security organ of
13 the Pristina Corps and of the 3rd Army pointing to the same facts.
14 We ask the Trial Chamber to inspect these documents that's
15 3D1050, 3D1052, and 3D1053.
16 5D1241, another exhibit, is a BBC video clip showing military
17 manoeuvres by the KLA on Mount Drenica
18 29th of January, 1999. And here you can also see fighters in civilian
19 clothes and women carrying weapons. General Lazarevic testified about
20 this on transcript page 17771.
21 In addition to all this, the General Staff of the army of
22 Yugoslavia
23 in early 1999 about 10 to 12.000 NATO soldiers were deployed with about a
24 hundred tanks and 36 helicopters, and it was estimated that NATO was
25 planning an air and ground operation. NATO air-strikes were announced in
Page 27237
1 February 1999, and Mr. O'Sullivan spoke about this in his closing
2 arguments.
3 From the territory of the Republic of Macedonia
4 increased influx of KLA and weapons with a view to creating a corridor.
5 3D1048 and 5D253 are exhibits illustrating this and pointing to this.
6 In this kind of military and political situation it was
7 completely natural, logical, and legitimate for the army to adopt plans,
8 directives, and orders for the defence of the territory and of the state
9 sovereignty both against the NATO forces whose possible aggression was
10 being prepared and which actually took place as we have seen, and from
11 the KLA which was acting from within with great force.
12 When one analyses the Pristina Corps command order, P2808 shown
13 to you by my learned friend Mr. Hannis, and it's dated the 16th of
14 February, 1999, for the destruction of the Siptar terrorists in the Malo
15 Kosovo area, which is also known as Lab or Podujevo, Drenica and
16 Malisevo, and 455-1 is the log register number, one can see that in
17 addition to the purely military tasks assigned to the corps units the
18 corps commander General Lazarevic prohibited the entry of members of the
19 court into built-up areas and he warned the members of the corps that
20 they must not violate international -- the international laws of war. If
21 you look at P2808, you will see that all this can be found there.
22 I ask the Trial Chamber to look at another piece of evidence
23 which supports all of this and which perhaps shows in the most impressive
24 way the fact that all these orders were justified, but the exhibit is
25 under seal so I ask that we move into private session for a moment.
Page 27238
1 JUDGE BONOMY: Very well, Mr. Bakrac. We can move into private
2 session.
3 [Private session]
4 (redacted)
5 (redacted)
6 (redacted)
7 (redacted)
8 (redacted)
9 (redacted)
10 (redacted)
11 (redacted)
12 (redacted)
13 (redacted)
14 (redacted)
15 (redacted)
16 (redacted)
17 (redacted)
18 (redacted)
19 (redacted)
20 (redacted)
21 (redacted)
22 (redacted)
23 (redacted)
24 (redacted)
25 (redacted)
Page 27239
1 (redacted)
2 (redacted)
3 (redacted)
4 (redacted)
5 (redacted)
6 [Open session]
7 THE REGISTRAR: We're in open session, Your Honours.
8 JUDGE BONOMY: Thank you.
9 MR. BAKRAC: [Interpretation] So the document we refer to shows
10 clearly and unambiguously that the orders and commands referred to were
11 adopted in -- that it was justified to adopt them.
12 Another witness from the Pristina Corps testified that in
13 addition to the large concentration of KLA on the territory of Malo
14 Kosovo Drenica and Malisevo, this area was suitable for a landing by the
15 NATO multinational force and their linking up with KLA. That's 21817.
16 That's the transcript page.
17 This general order, 2808, is one that individual orders were
18 based on bearing the heading Joint Command for KiM and General Lazarevic
19 testified that these were orders of the Pristina Corps command and that
20 these were actions in support of the MUP. My learned friend Mr. Hannis
21 also mentioned these orders, saying that they stemmed from this order,
22 P2808, and that they corresponded to the territory from the indictment
23 referring to the crime base.
24 We will show that these orders, of which we have 16 as exhibits
25 on the record, only 4 of them correspond to the crime base from the
Page 27240
1 indictment. That's P2015, P1968 and P1969, and P1975.
2 If you look at the territory from the crime base as described in
3 the indictment and compare this with the remaining 15 orders -- rather,
4 excuse me, the remaining 12 orders, you will see that these orders refer
5 to actions in areas where no crimes were committed.
6 If these were orders which were intended to mask a plan to commit
7 crimes against ethnic Albanians, the question arises why only four of
8 these orders relate to the crime base? Why not all of them? And the
9 answer is clear. It's clear because the OTP has no evidence to support
10 its case and is engaged in speculation.
11 A simple analysis of the contents of all these orders shows that
12 there was a legal and legitimate sequence both as regards the content of
13 the orders and the chain of command. In addition to this, the content of
14 these orders leads quite clearly and unambiguously to the conclusion that
15 they are not a screen or a cover to commit crimes against Albanian
16 civilians under the pretext of fighting the KLA as the OTP contends.
17 We wish to remind Your Honours that General Vasiljevic, a
18 Prosecution witness, was shown an order issued by the Pristina Corps
19 commander, P2014, and that this witness, Vasiljevic, evaluated this order
20 as being a typical document composed in a precise and professional manner
21 and that it's a high quality document. That's transcript pages 8732 and
22 8734.
23 My colleague Mr. Ackerman has already mentioned, and I have noted
24 down that here I would agree with my colleague Mr. Hannis who asked you
25 to apply the principle, and I'll tell you the following: If something is
Page 27241
1 called an order and if its context shows that it is a high quality order,
2 then probably it is an order and not something quite different.
3 Your Honours, I now wish to move on to another topic, and I see
4 we have only two minutes left, so I don't know if this might be a
5 convenient moment, and -- I do apologise, Your Honours. My colleague
6 Mr. Cepic has received an e-mail. Mr. Lazarevic is still in the prison
7 hospital.
8 JUDGE BONOMY: Well, thank you. We will adjourn at this stage
9 until Monday. We're due to sit on Monday morning. We will have to
10 interrupt the sitting at around 11.45 or thereabouts because there is a
11 Plenary meeting of Judges that the Judges here are required to attend.
12 If by then we know that there is other time available on Monday,
13 we may take advantage of that, and similarly on Tuesday. We may try
14 to -- well, we are trying to secure other time, but it may prove
15 impossible because of the commitments of other cases, but please don't
16 take on any commitments on the assumption that we will not be sitting a
17 little longer on Monday and possibly for part of Monday morning --
18 Tuesday morning, but we will alert you as soon as we can of any change to
19 the sitting arrangements. For the moment, we shall resume on Monday at
20 9.00 and sit until 11.45.
21 --- Whereupon the hearing adjourned at 3.29 p.m.
22 to be reconvened on Monday, the 25th day
23 of August, 2008, at 9.00 a.m.
24
25