Page 709
1 Thursday, 23 January 2014
2 [Appeals Judgement]
3 [Open session]
4 [The Appellants entered court]
5 --- Upon commencing at 9.29 a.m.
6 JUDGE LIU: Registrar, would you please call the case, please.
7 THE REGISTRAR: Good morning, Your Honours.
8 This is case IT-05-87-A, the Prosecutor versus Nikola Sainovic,
9 Nebojsa Pavkovic, Vladimir Lazarevic, and Sreten Lukic.
10 JUDGE LIU: Thank you.
11 May I now please have the appearances of the parties. First
12 Prosecution.
13 MR. KREMER: Good morning, Mr. President. Peter Kremer,
14 Daniela Kravetz appearing on behalf of the Prosecution, and we're
15 assisted this morning by our Case Manager, Colin Nawrot. Thank you.
16 JUDGE LIU: Thank you very much.
17 Now the Defence counsel, please.
18 MR. FILA: [Interpretation] Mr. President, Toma Fila and Vlade
19 Petrovic, lawyers from Belgrade, on behalf of Mr. Sainovic.
20 JUDGE LIU: Thank you.
21 MR. ALEKSIC: [Interpretation] Good morning, Your Honours.
22 Aleksandar Aleksic, Defence of General Pavkovic.
23 JUDGE LIU: Thank you.
24 MR. BAKRAC: [Interpretation] Good morning, Your Honours. On
25 behalf of the Defence of General Lazarevic, Mihajlo Bakrac, Djuro Cepic,
Page 710
1 and Milan Petrovic.
2 JUDGE LIU: Thank you.
3 MR. IVETIC: Good morning, Your Honours. Dan Ivetic with
4 Branko Lukic and our assistant, Mr. Milenko Dundjer, appearing on behalf
5 of Appellant Sreten Lukic.
6 JUDGE LIU: Thank you.
7 Before we start, can all the parties hear the proceedings in a
8 language that they understand?
9 Mr. Sainovic.
10 THE APPELLANT SAINOVIC: [Interpretation] Yes, Your Honour, I can
11 follow.
12 JUDGE LIU: Thank you. You may sit down.
13 Mr. Pavkovic.
14 THE APPELLANT PAVKOVIC: [Interpretation] Yes, Your Honour, I can
15 follow.
16 JUDGE LIU: Thank you very much.
17 Mr. Lazarevic.
18 THE APPELLANT LAZAREVIC: [Interpretation] I can follow.
19 JUDGE LIU: Thank you.
20 Mr. Lukic.
21 THE APPELLANT LUKIC: [Interpretation] Yes, Your Honour.
22 JUDGE LIU: Thank you very much.
23 The Appeals Chamber convenes today in accordance with the
24 Scheduling Order issued on 15 November 2013 and pursuant to Rule 117(D)
25 of the Tribunal's Rules of Procedure and Evidence to deliver its
Page 711
1 Judgement in the case of the Prosecutor versus Nikola Sainovic, Nebojsa
2 Pavkovic, Vladimir Lazarevic, and Sreten Lukic.
3 Following the practice of the Tribunal, I will not read out the
4 text of the Judgement, except for the disposition, but instead will
5 summarise the essential issues on appeal and the central findings of the
6 Appeals Chambers. This oral summary does not constitute any part of the
7 official and authoritative judgement of the Appeals Chamber, which will
8 be distributed in writing to the parties at the close of this hearing.
9 In the written judgement when referring to the names of
10 geographic locations, both Albanian and the Bosnian, Croatian, Serbian
11 versions are used. Solely for the convenience of today's summary, I will
12 use only the Bosnian, Croatian, and Serbian version.
13 Background of the case.
14 The events giving raise to this case tack place between March and
15 June 1999 and concern the forcible displacement of the Kosovo Albanian
16 population in Kosovo. The Trial Chamber found that following the
17 commencement of the NATO bombing on the 24th March 1999, a campaign of
18 violence was launched against the Kosovo Albanian civilian population,
19 during which numerous Kosovo Albanians were forcibly displaced, incidents
20 of killing and sexual assaults took place, and the mosques were
21 intentionally destroyed. The Trial Chamber held that neither the NATO
22 bombing, nor the ongoing armed conflict between Kosovo Liberation Army,
23 or KLA, and the forces of the Federal Republic of Yugoslavia or FRY and
24 Serbia were the primary cause of the flight of hundreds of thousands of
25 Kosovo Albanians. Rather, the Trial Chamber held that it was the
Page 712
1 deliberate actions of the forces of FRY and Serbia during the campaign of
2 violence that caused the departure of at least 700.000 Kosovo Albanians
3 from Kosovo.
4 The Trial Chamber further found that "during the time of the
5 crimes alleged in the indictment," a joint criminal enterprise, or JCE,
6 existed, the common purpose of which was to forcibly displace
7 Kosovo Albanian population both within and without Kosovo through a
8 widespread and systematic campaign of terror and violence. The Trial
9 Chamber found that this was to ensure continued control by the
10 authorities of FRY and Serbia over Kosovo. The Trial Chamber also
11 concluded that while the crimes of deportation and forcible transfer were
12 within the ambit of the common purpose, the crimes of murder as a
13 violation of the laws and the customs of war, and the murder and
14 persecution through murder, sexual assault, and the destruction of or
15 damage to religious property as crimes against humanity fell outside the
16 common purpose of the JCE.
17 During the period relevant to the indictment, Mr. Sainovic was
18 the deputy prime minister of FRY; Mr. Pavkovic was the commander of the
19 3rd as Army of the Army of Yugoslavia, or VJ; Mr. Lazarevic was commander
20 of the Pristina Corps of the VJ; and Mr. Lukic was the head of the staff
21 of the Ministry of Interior of the Republic of Serbia in Pristina, also
22 referred to as MUP staff. I will refer to them collectively as
23 appellants. The Trial Chamber concluded that Mr. Sainovic, Mr. Pavkovic,
24 Mr. Lukic participated in the JCE as each of them shared the intent to
25 forcibly displace Kosovo Albanian population and the significantly
Page 713
1 contributed to the JCE. With respect to the crimes following outside the
2 common purpose, the Trial Chamber found that the commission of murder and
3 the persecution through murder and destruction of and the damage to
4 religious property were reasonably foreseeable to Mr. Sainovic,
5 Mr. Pavkovic, Mr. Lukic. The Trial Chamber further found that the
6 commission of the persecutions through sexual assaults was reasonably
7 foreseeable to Mr. Pavkovic, but not to Mr. Sainovic and Mr. Lukic.
8 The Trial Chamber convicted Mr. Sainovic of committing, through
9 participation in JCE, deportation, other inhumane acts (forcible
10 transfer) murder, and the persecution as crimes against humanity and the
11 murder as a violation of the laws and the customs of war. He was
12 sentenced to 22 years of imprisonment.
13 The Trial Chamber convicted Mr. Pavkovic of committing, through
14 participation in the JCE, deportation, other inhumane acts (forcible
15 transfer), murder, and the persecution as crimes against humanity and
16 murder as a violation of laws or customs of war. He was sentenced to 22
17 years of imprisonment.
18 The Trial Chamber convicted Mr. Lukic of committing, through
19 participation in the JCE, deportation, other inhumation acts (forcible
20 transfer), murder, and the persecution as crimes against humanity, and
21 the murder as a violation of the laws or customs of war. He was
22 sentenced to 22 years of imprisonment.
23 The Trial Chamber convicted Mr. Lazarevic of aiding and abetting
24 the crimes of deportation and other inhumane acts, forcible transfer, as
25 crimes against humanity in which the VJ was involved. The Trial Chamber
Page 714
1 acquitted Mr. Lazarevic as aiding and abetting murder as a crime against
2 humanity, murder as a violation of the laws and the customs of war, and
3 the persecution through murder as a crime against humanity. He was
4 sentenced to 15 years of imprisonment.
5 Each of the Appellants challenged his conviction and sentence.
6 The Office of the Prosecutor, herein after Prosecution, brought six
7 grounds of appeal against the acquittal of each appellant on certain
8 counts and in relation to their sentences.
9 The Appeals Chambers heard the oral submissions of the parties
10 from 11 to 15th March 2013.
11 I now turn to the contentions of the Appellants and the
12 Prosecution, addressing first the submissions regarding alleged errors in
13 relation to fair trial.
14 Alleged error in relation to fair trial.
15 Mr. Pavkovic and Mr. Lukic both alleged a violation of their
16 right to a fair trial due the lack of adequate time and facilities for
17 the preparation of their Defence cases. Based on the holistic assessment
18 of Trial Chamber's management of the proceedings, the Appeals Chamber
19 found that Mr. Pavkovic and Mr. Lukic were accorded adequate time and
20 facilities for the preparation of their Defence. In relation to
21 Mr. Lukic's remaining challenges, the Appeals Chamber found no error in
22 the Trial Chamber's relevant determinations or any apprehension of bias
23 on its part.
24 Alleged errors in relation to the indictment.
25 I now turn to parties' submissions regarding alleged errors in
Page 715
1 relation to the indictment.
2 Mr. Sainovic argued that the Trial Chamber erred in convicting
3 him as the political co-ordinator of the VJ and the MUP forces in Kosovo
4 as this allegation was not adequately pleaded in the indictment. The
5 Appeals Chamber finds that the term "political co-ordinator" does not
6 constitute a material fact in itself that should have been pleaded in the
7 indictment and therefore dismisses Mr. Sainovic's appeal, in this regard.
8 Mr. Lazarevic argues that the Trial Chamber erred in holding him
9 responsible for deportation and forcible transfer committed in the area
10 of the village of Cirez in the Srbica municipality on the basis of acts
11 that occurred outside time-frame specified in the indictment. The
12 Appeals Chamber considers that the time-frame set out in paragraph 72(C)
13 of the indictment, when read together with the allegations contained in
14 the chapeau of the same paragraph, provides sufficient notice with
15 respect to the timing of the acts. The Appeals Chamber thus finds that
16 the indictment adequately put Mr. Lazarevic on notice as to the date of
17 the crime charged and dismisses his appeal, to the extent that it alleges
18 a defect in the indictment.
19 Mr. Lukic argues that the Trial Chamber erred in holding him
20 responsible for the murder of victims who were not listed in the
21 indictment. Having examined the parties submissions, the Appeals Chamber
22 found that only four victims of murder referred to by Mr. Lukic were not
23 mentioned by name in the Schedules annexed to the indictment. Given the
24 circumstances of this case, including the high number of victims alleged,
25 Mr. Lukic's distance from the actual killings, and the fact that the
Page 716
1 Schedules to the indictment were not meant to provide exhaustive lists,
2 the Appeals Chamber found that the omission of the victims' names does
3 not amount to a defect in the indictment. The Appeals Chamber therefore
4 dismisses the relevant part of Mr. Lukic's appeal.
5 The Prosecution argues that the Trial Chamber erred in law in
6 finding that specific deportations and forcible transfer detailed in
7 paragraph 72 of the indictment was not charged as a form of persecution
8 under Count 5. The Appeals Chamber finds that the Prosecution has failed
9 to raise an objection to the Trial Chamber's interpretation of the
10 indictment when it could have reasonably done so. It further finds that
11 the Prosecution has waived its right to raise this argument on appeal.
12 The Appeals Chamber therefore dismisses Prosecution's appeal in the
13 relevant.
14 The Appeals Chamber observed that the crimes of deportation and
15 other inhumane acts, forcible transfer, committed in Tusilje in Srbica
16 municipality on 29th March 1999 were not pleaded in the indictment. The
17 indictment was thus defective in this respect and the defect was not
18 subsequently cured. The Appeals Chamber finds that the omission of the
19 incidents in Tusilje and the resulting lack of notice causes a prejudice
20 and materially impaired the Appellants in the preparation of their
21 Defence. Accordingly, the Appeals Chamber vacates the convictions of
22 Mr. Sainovic, Mr. Pavkovic, Mr. Lazarevic, and Mr. Lukic in relation to
23 the incidents in Tusilje on 29 March 1999.
24 Alleged errors concerning the mens rea chapeau requirement of
25 Article 5 of the Statute.
Page 717
1 Mr. Pavkovic raises a number of challenges to the Trial Chamber's
2 findings in relation to the mens rea chapeau requirement of crimes
3 against humanity. The Appeals Chamber holds that to satisfy the mens rea
4 chapeau requirement of Article 5 of the Tribunal's Statute, the accused
5 must have known of the attack against the civilian population and that
6 his act comprised part of the attack or at least must have taken the risk
7 that his acts were part thereof. For the reasonings set out in the
8 Judgement, the Appeals Chamber discerns no error in the Trial Chamber's
9 relevant findings. Accordingly, the Appeals Chamber dismisses
10 Mr. Pavkovic's appeal in this regard.
11 Underlying crimes.
12 In all of the 13 municipalities where specific crimes were
13 charged, the Trial Chamber found that during the spring of 1999, forces
14 of FRY and Serbia deliberately and forcibly displaced Kosovo Albanian
15 civilians, both within and outside Kosovo. The Trial Chamber also found
16 that during the forcible displacements of the Kosovo Albanian population,
17 the FRY and the Serbian forces killed at least 600 individuals, destroyed
18 or damaged mosques, and sexually assaulted Kosovo Albanian women.
19 Mr. Lazarevic and Mr. Lukic challenge the Trial Chamber's
20 findings on the commission of the forcible displacement by the FRY and
21 the Serbian forces. The Appeals Chamber found that, with the exception
22 of the two locations, Mr. Lazarevic and Mr. Lukic have failed to
23 demonstrate an error in the Trial Chamber's findings. Only in relation
24 to the Kacanik town and Turicevac, the Appeals Chamber finds that no
25 reasonable trier of fact could have a concluded that the only reasonable
Page 718
1 inference was that members of the VJ forces in relation to the Kacanik
2 town and the members of the VJ and MUP forces in relation to the
3 Turicevac caused the displacement of the population. Accordingly, the
4 Appeals Chamber grants Mr. Lazarevic's argument and then vacates his
5 conviction in relation in relation to the incident in Kacanik town. The
6 Appeals Chamber also vacates the convictions of Mr. Sainovic,
7 Mr. Pavkovic, Mr. Lazarevic, and Mr. Lukic in relation to the incidents
8 in the Turicevac.
9 The Prosecution has appealed against the Trial Chamber's
10 acquittal of Mr. Lazarevic in relation to villages in three
11 municipalities. In this regard, the Prosecution submits that the
12 Trial Chamber erred by failing to apply its own finding that VJ
13 participated in deportation and forcible transfer as crimes against
14 humanity in those locations.
15 In volume 2 of the Trial Judgement, the Trial Chamber found that
16 Kosovo Albanians from the village in Kosovska Mitrovica, Prizren, and
17 Urosevac municipalities were forcibly displaced by MUP and VJ forces.
18 However, in volume 3 of the Trial Judgement, the Trial Chamber did not
19 hold Mr. Lazarevic responsible for aiding and abetting the crimes of
20 forcible displacement in these locations, stating that these crimes were
21 carried out by the MUP, without the participation of the VJ. Recalling
22 that a Trial Judgement must be read as a whole, the Appeals Chamber found
23 that Trial Chamber's statement in volume 3 of Trial Judgement was an
24 oversight and that Trial Chamber therefore erred in failing to apply its
25 own factual finding that the VJ was involved in the commission of the
Page 719
1 crimes. Accordingly, the Appeals Chamber grants, in part, the
2 Prosecution's appeal. However, the Appeals Chamber, Judge Ramaroson
3 dissenting, declines to enter new convictions on appeal.
4 The Trial Chamber further found a total of at least 600
5 individuals were killed by VJ and MUP forces during the course of their
6 operations to forcibly displace the Kosovo Albanian civilian population.
7 Mr. Lukic raises several challenges to Trial Chamber's findings
8 concerning these killings, including regarding the identification of the
9 victims and the cause of their death.
10 The Appeals Chamber finds merit solely in Mr. Lukic's arguments
11 concerning the murders committed in the course of the Reka valley
12 operation in Djakovica municipality. In particular, Mr. Lukic argues
13 that some of the 287 victims that the Trial Chamber found were murdered
14 during the Reka valley operation could have been combatants. The Appeals
15 Chamber notes that the Trial Chamber failed to determine whether at the
16 time of their death each victim was a civilian taking no active part in
17 hostilities or was hors de combat. The Appeals Chamber considers that in
18 absence of sufficient evidence under circumstances and the status of each
19 of the victims, the Trial Chamber erred to the extent it found that all
20 287 killings during the Reka valley operation amounted to murder as a
21 crime against humanity and as a violation of laws or customs of war.
22 Having reviewed the relevant evidence, the Appeals Chamber is satisfied
23 that it has only been established beyond a reasonable doubt that 13
24 individuals killed were taking no active part in hostilities at the time
25 of their deaths. The Appeals Chamber therefore vacates both
Page 720
1 Mr. Pavkovic's and Mr. Lukic's convictions for murder under Articles 3
2 and 5 of the Statute with respect to the 274 of the 287 Kosovo Albanians
3 found to be murdered. The Appeals Chamber dismisses Mr. Lukic's
4 remaining challenges to the Trial Chamber's findings on murder.
5 With respect to the Trial Chamber's findings on the commission of
6 sexual assault, the Prosecution argues that the Trial Chamber erred when
7 it failed to find the rapes of K31, K14, and K62 in Pristina were
8 committed with discriminatory intent, thus constitutes a persecution.
9 The Trial Chamber found that the Prosecution had failed to present any
10 evidence from which the discriminatory intent of the perpetrators of the
11 rape could be inferred notwithstanding its findings that the rapes were
12 committed by the VJ and MUP forces in the course of the operation to
13 remove large numbers of Kosovo Albanians from Pristina town. The Appeals
14 Chamber considers that the Trial Chamber failed to properly consider the
15 context in which the rapes occurred and erred in finding that there was
16 no evidence from which the discriminatory intent of the perpetrators
17 could be inferred. The Appeals Chamber is satisfied that the only
18 reasonable inference to be drawn from the evidence presented at trial is
19 that the three women were raped with discriminatory intent by members of
20 the VJ and the MUP and that these acts constitute persecution as a crime
21 against humanity. The Appeals Chambers thus grants, in part,
22 Prosecution's appeal.
23 Joint criminal enterprise.
24 I now turn to the submissions of Mr. Sainovic, Mr. Pavkovic, and
25 Mr. Lukic with regard to their individual criminal responsibility under
Page 721
1 JCE liability. I will first address their contentions concerning the
2 common purpose of the JCE and subsequently turn to their arguments
3 regarding their participation in the JCE. The existence of a common
4 plan, desire, or purpose.
5 Mr. Sainovic, Mr. Pavkovic, and Mr. Lukic submits that the
6 Trial Chamber erred in concluding that it was established beyond a
7 reasonable doubt that there was a common purpose shared by the JCE
8 members during the time of the crimes alleged in the indictment that
9 amounted to or involved the commission of those crimes under the Statute,
10 that this common purpose was to forcibly displace a number of
11 Kosovo Albanians, both within and outside Kosovo.
12 The Appeals Chamber observes that the Trial Chamber made findings
13 on the commission of the crimes charged in the indictment in relation to
14 the events starting from 24th March until the end of May, 1999.
15 Therefore, the Appeals Chamber understands that Trial Chamber's finding
16 on the existence of the common purpose to be related to the period of the
17 occurrences of those crimes, namely, from 24th March until the end of
18 May 1999.
19 The Appeals Chamber recalls that, while the Trial Chamber
20 inferred the existence of the common purpose from several factors, it
21 placed the most weight on the pattern of forcible displacement of
22 Kosovo Albanians and the confiscation of their identification documents.
23 Mr. Sainovic, Mr. Pavkovic, and Mr. Lukic have failed to demonstrate that
24 the Trial Chamber erred in its assessment of the evidence regarding those
25 two factors. The Appeals Chamber found that the evidence regarding those
Page 722
1 two factors is indeed sufficient for a reasonable trier of fact to find
2 that the only reasonable inference is that there existed a common purpose
3 as found by the Trial Chamber. The Appeals Chamber dismisses in their
4 entirety Mr. Sainovic's, Mr. Pavkovic's, Mr. Lukic's arguments in
5 relation to the Trial Chamber's finding on the existence of the common
6 purpose.
7 The existence and authority of the Joint Command.
8 I now turn to the submissions of Mr. Sainovic, Mr. Pavkovic, and
9 Mr. Lukic concerning an entity known as the Joint Command for Kosovo and
10 Metohija or simply the Joint Command. The Trial Chamber found that an
11 entity known as the Joint Command composed of politicians and VJ and MUP
12 members was created around June 1998 and that it had influence over VJ
13 and MUP forces in Kosovo and played a role in the co-ordination of those
14 forces in the second half of 1998 and in the first half of 1999. The
15 Trial Chamber considered Mr. Sainovic's, Mr. Pavkovic's, and Mr. Lukic's
16 respective roles in the co-ordination of the VJ and MUP forces through
17 Joint Command to infer their intent and the contribution to the common
18 purpose of the JCE. For the reasons set out in the Judgement, the
19 Appeals Chamber, Judge Tuzmukhamedov dissenting, found that Mr. Sainovic,
20 Mr. Pavkovic, and Mr. Lukic have failed to demonstrate any error in the
21 Trial Chamber's finding on the existence and the authority of the joint
22 command. The Appeals Chamber, Judge Tuzmukhamedov dissenting, therefore
23 dismisses their submissions in this regard.
24 Mr. Sainovic's participation in the JCE.
25 I know turn to Mr. Sainovic's argument challenging the Trial
Page 723
1 Chamber's finding that he made significant contribution to the common
2 purpose of the JCE and that shared intent to forcibly displace part of
3 the Kosovo Albanian population. In its assessment of Mr. Sainovic's
4 participation in the JCE, the Trial Chamber found that he possessed
5 extensive de facto powers over both VJ and MUP forces in Kosovo and was
6 the crucial link between the then-FRY President Slobodan Milosevic, who
7 was in Belgrade, and the VJ and the MUP units that were operating in
8 Kosovo. The Trial Chamber found that Mr. Sainovic's role was, therefore,
9 that of political co-ordinator of the forces in Kosovo.
10 The Appeals Chambers, Judge Tuzmukhamedov dissenting, finds that
11 Mr. Sainovic has not demonstrated any error in the Trial Chamber's
12 finding that he was one of the closest and most trusted associates of
13 Slobodan Milosevic in 1999. The Appeals Chamber further found that
14 Mr. Sainovic has not demonstrated any error in the Trial Chamber's
15 findings related to his leadership role during Joint Command meetings in
16 1998, his participation at meetings in 1998 at which the plan for
17 combatting terrorism in Kosovo was discussed, his position as chairman of
18 the commission for co-operation with the Kosovo verification mission, his
19 dealings with Ibrahim Rugova, and his participation at the MUP staff
20 meeting on 4 April 1999. The Appeals Chamber, Judge Tuzmukhamedov
21 dissenting, further found that Mr. Sainovic has failed to show any error
22 in the Trial Chamber's findings concerning the meeting on the
23 4th May 1999 with Milosevic, the meeting at MUP staff on the
24 7th May 1999, and on the 1st June 1999 Joint Command meeting. The
25 Appeals Chamber, Judge Tuzmukhamedov dissenting, also dismisses
Page 724
1 Mr. Sainovic's argument concerning his role in liaising with and
2 influencing the VJ and MUP forces. The Appeals Chamber also held that
3 Mr. Sainovic has not demonstrated an error in the Trial Chamber's finding
4 that he was able to make proposals, give suggestions, and issue
5 instructions.
6 While the Appeals Chamber found that the Trial Chamber erred in
7 relying on Mr. Sainovic's presence at a meeting on the 13th April 1999
8 with Zlatomir Pesic, it finds, Judge Tuzmukhamedov dissenting, the Trial
9 Chamber's error has no impact on its conclusion that in 1999 Mr. Sainovic
10 continued to liaise between the VJ and the MUP on the one hand and
11 Milosevic on the other.
12 Moreover, the Appeals Chamber, Judge Tuzmukhamedov dissenting,
13 finds that Mr. Sainovic has not demonstrated that the Trial Chamber erred
14 in finding that he had extensive power over VJ and the MUP forces and
15 acted as a political co-ordinator of those forces in both 1998 and 1999
16 and that his contribution to the common purpose was significant.
17 The Trial Chamber further found that Mr. Sainovic was well aware
18 of the displacements and the crimes taking place in Kosovo in 1998 and
19 continued to acquire the information on the commission of the crimes,
20 including, forcible displacements throughout 1999. The Appeals Chamber
21 considers that a reasonable trier of fact could have concluded that
22 Mr. Sainovic shared the intent to forcibly displace parts of the
23 Kosovo Albanian population in 1999. In this regard, the Appeals Chamber
24 upholds the Trial Chamber's finding that Mr. Sainovic's statements
25 insisting on the prevention and the punishment of crimes were merely
Page 725
1 window dressing.
2 Consequently, the Appeals Chamber, Judge Tuzmukhamedov
3 dissenting, upholds that Trial Chamber's finding that Sainovic
4 participated in the JCE.
5 In addition, Mr. Sainovic challenges Trial Chamber's finding that
6 he was responsible for the crime of murders as a violation of the laws or
7 customs of war and the murder and persecution through murder and the
8 destruction of and damage to religious property as crime against humanity
9 pursuant to the JCE III. The Appeals Chamber found that in reaching its
10 conclusion, the Trial Chamber erroneously applied a higher degree of the
11 foreseeability than that required under correct legal standard. Further
12 the Appeals Chamber found that in assessing whether murder was
13 foreseeable to Mr. Sainovic, the Trial Chamber erred in concluding that
14 he knew about commission of murder in several locations.
15 Nevertheless, in light of the remaining factual findings of the
16 Trial Chamber and applying the correct legal standard, the Appeals
17 Chamber, Judge Liu dissenting, is satisfied that as of 7 May 1999, it was
18 foreseeable to Mr. Sainovic that murders could be committed and that he
19 willing took that risk. The Appeals Chamber therefore grants
20 Mr. Sainovic's appeal, in part, and quashes his conviction for murder
21 committed prior to 7 May 1999, pursuant to JCE III. The Appeals Chamber,
22 Judge Liu dissenting, upholding Mr. Sainovic's conviction for murder
23 committed in Dubrava around 25 May 1999 pursuant to the JCE III. The
24 Appeals Chamber further found that Mr. Sainovic has failed to demonstrate
25 any error in the factual findings relied upon by the Trial Chamber in
Page 726
1 concluding that it was foreseeable to him that the persecution through
2 destruction of or damage to religious property would be committed and
3 that he willing took that risk. Since a higher degree of the
4 foreseeability was met, a lower degree of the foreseeability is
5 necessarily satisfied. Mr. Sainovic's arguments are therefore dismissed.
6 Mr. Pavkovic's participation in the JCE.
7 I now turn to Mr. Pavkovic's arguments challenging the Trial
8 Chamber's findings that he significantly contributed to the common
9 purpose of the JCE and the shared intent to forcibly displace
10 Kosovo Albanian population. He also contests the Trial Chamber's
11 findings that crimes of both VJ and the MUP are imputable to him.
12 In reaching its conclusions, the Trial Chamber considered that,
13 throughout the period in which the crime was committed, Mr. Pavkovic,
14 inter alia, ordered and supported the operations of the VJ in Kosovo,
15 including joint operation with the MUP, mobilised the troops, and
16 commanded them during these operations. The Trial Chamber also
17 considered that Mr. Pavkovic contributed to the creation and maintenance
18 of an environment of impunity by under-reporting crimes committed by the
19 forces under his control and then failing to take effective measures in
20 response to information thereon, which encouraged the commission of the
21 crimes by forces under the control of the JCE members. In addition, the
22 Trial Chamber considered Mr. Pavkovic's close working relationship to
23 Slobodan Milosevic in 1998 and 1999, which enabled him to bypass the VJ
24 chain of command. The Trial Chamber further found Mr. Pavkovic knew of
25 the crimes committed by VJ and MUP members and allegations thereof in
Page 727
1 1998 and 1999.
2 The Appeals Chamber found the Trial Chamber erred in finding that
3 Mr. Pavkovic contributed to the JCE, prior to the existence of the common
4 purpose, through his involvement in the process of arming the
5 non-Albanian population and disarming the Kosovo Albanian population and
6 deploying additional VJ forces into Kosovo in breach of the agreements
7 brokered in October 1998. Nevertheless, the Appeals Chamber considers
8 that the Trial Chamber's overall conclusion that Mr. Pavkovic made a
9 significant contribution to the JCE is unaffected by those errors as the
10 Trial Chamber's conclusion was based on the abundance of other evidence,
11 including, Mr. Pavkovic's other conduct, which continued through 1999.
12 Mr. Pavkovic's remaining arguments have not demonstrated that the
13 Trial Chamber erred in finding that he significantly contributed to the
14 common purpose of the JCE and shared the intent to forcibly displace
15 Kosovo Albanian population. His submissions in this regard are thus
16 dismissed.
17 In addition, Mr. Pavkovic has failed to show that the Trial
18 Chamber erred in concluding that crimes committed by both VJ and MUP
19 forces are imputable to Mr. Pavkovic, pursuant to JCE I. His arguments
20 in this respect are also dismissed.
21 The Appeals Chamber thus upholds Trial Chamber's finding that
22 Mr. Pavkovic's participated in the JCE.
23 Furthermore, Mr. Pavkovic challenges Trial Chamber's finding that
24 he was responsible for crimes of murder as violation of the laws or
25 customs of war and murder and persecution through murder, sexual assault,
Page 728
1 and destruction of or damage to religious property as crimes against
2 humanity pursuant to the JCE III.
3 As already mentioned with respect to Mr. Sainovic, the Appeals
4 Chamber finds in reaching its conclusion under JCE III, the Trial Chamber
5 erroneously applied a higher degree of the foreseeability than that
6 required under the correct legal standard. The Appeals Chamber finds
7 that Mr. Pavkovic has failed to demonstrate any error in the factual
8 findings relied upon by the Trial Chamber in reaching its conclusion on
9 his foreseeability of the relevant crimes and the risk he took.
10 Consequently, the Appeals Chamber considers that the error of law
11 committed by the Trial Chamber as to the degree of the foreseeability has
12 no impact to Mr. Pavkovic's conviction. Mr. Pavkovic's further argument
13 have also failed to demonstrate that the Trial Chamber erred in finding
14 that these crimes outside the scope of the common purpose were imputable
15 to him. Accordingly, the Appeals Chamber dismisses Mr. Pavkovic's
16 argument with regard to his JCE III liability.
17 Mr. Lukic's participation in the JCE.
18 I now turn to Mr. Lukic's arguments challenging the
19 Trial Chamber's findings as to his role as head of the MUP staff, his
20 participation in, and the contribution to the implementation of the
21 common purpose of the JCE and that he shared the intent to forcibly
22 displace Kosovo Albanian population.
23 The Trial Chamber found that Mr. Lukic made a significant
24 contribution to the JCE as he was the de facto commander over MUP forces
25 deployed in Kosovo from mid-1998 to mid-1999, the bridge between the
Page 729
1 policy planners in Belgrade and those on the ground in Kosovo, and was
2 directly involved in the planning process, and in ensuring that
3 day-to-day operations were conducted by the various MUP forces in
4 accordance with those plans.
5 The Appeals Chamber found that the Trial Chamber erred in finding
6 that Mr. Lukic contributed to the JCE prior to the existence of the
7 common purpose through his involvement in the process of arming the
8 non-Albanian population and the disarming the Kosovo Albanian population.
9 Nevertheless, the Appeals Chamber considers that the Trial Chamber's
10 conclusion that Mr. Lukic made a significant contribution to the JCE is
11 unaffected by this error as it was based on abundance of other evidence,
12 including Mr. Lukic's other conduct as the head of the MUP staff which
13 continued through 1999. The Appeals Chamber finds Mr. Lukic has failed
14 to demonstrate an error in the Trial Chamber's remaining finding
15 concerning the MUP staff's authority, his role as head of the MUP staff,
16 and his contribution to the JCE.
17 In reaching the conclusion that Mr. Lukic shared the intent with
18 other JCE members to forcibly displace Kosovo Albanian population, the
19 Trial Chamber considered, inter alia, the information Mr. Lukic received
20 both in 1998 and in 1999. Having due regard to the Trial Chamber's
21 finding on Mr. Lukic's awareness of serious allegations of criminal
22 activities by various forces in Kosovo in mid-to late 1998, and the
23 information he received about the commission of crimes and the mass
24 departure of the civilian populations in 1999, the Appeals Chamber finds
25 that the Trial Chamber's conclusion on Mr. Lukic's knowledge of crimes
Page 730
1 based on the totality of the evidence was reasonable. Mr. Lukic's
2 remaining challenge to the Trial Chamber's findings in relation to his
3 sharing the intent to forcibly displace parts of the Kosovo Albanian
4 population are dismissed.
5 The Appeals Chamber thus upholds the Trial Chamber's finding that
6 Mr. Lukic parted in the JCE.
7 Mr. Lukic also challenges the Trial Chamber's finding that he was
8 responsible pursuant to JCE III for the crimes of murder as violation of
9 the laws or customs of war and the murder and the persecution through
10 murder and the destruction of or damage to religious property as crimes
11 against humanity. As already expressed with respect to Mr. Sainovic and
12 Mr. Pavkovic, the Appeals Chamber found that in reaching its conclusion
13 on JCE III, the Trial Chamber erroneously applied a higher degree of the
14 foreseeability than that required under the correct legal standard.
15 Further, the Appeals Chamber finds that in assessing whether murder was
16 foreseeable to Mr. Lukic, the Trial Chamber erred in relying on the
17 information he received about the incidents in Gornje Obrinje.
18 In light of the remaining factual findings of the Trial Chamber
19 and in applying the correct legal standard, the Appeals Chamber grants
20 Mr. Lukic's appeal concerning his responsibility of murder pursuant to
21 JCE III, in part, and quashes his convictions for murder as a violation
22 of the laws or customs of war and the murder and the persecution through
23 murder as a crime against humanity committed prior to or on 1st
24 April 1999, pursuant to the JCE III.
25 The Appeals Chamber upholds Mr. Lukic's conviction for murder at
Page 731
1 Korenica Meja on 27 April 1999, near Gornja Sudimlja in relation to the
2 convoys on 2nd and 3rd May 1999 and at Dubrava around the 25th May, 1999,
3 pursuant to JCE III. The Appeals Chamber further found that Mr. Lukic
4 has not demonstrated any error in the Trial Chamber's finding in relation
5 to his JCE III liability for the destruction or of damage to religious
6 property.
7 Prosecution's appeal in relation to JCE III.
8 I now turn to Prosecution's appeal concerning Mr. Sainovic's and
9 Mr. Lukic's acquittals for persecution through sexual assaults committed
10 in Beleg, Cirez, and Pristina pursuant to JCE III liability and
11 Mr. Pavkovic's acquittal for persecution through sexual assaults
12 committed in Pristina pursuant to JCE III.
13 Regarding Mr. Sainovic Mr. Lukic, the Prosecution argues that the
14 Trial Chamber erred in law by applying an incorrect legal standard for
15 JCE III mens rea. It requests the Appeals Chamber to apply the correct
16 legal standard to the facts of the case and to convict Mr. Sainovic and
17 Mr. Lukic for persecutions through sexual assaults. Regarding
18 Mr. Pavkovic, the Prosecution submits that the Appeals Chamber should
19 convict him for persecutions through sexual assaults committed in
20 Pristina pursuant to JCE III.
21 As already explained with respect to the appeals of Mr. Sainovic,
22 Mr. Pavkovic, and Mr. Lukic, the Appeals Chamber found that the Trial
23 Chamber erred in law in concluding that for JCE III liability to arise,
24 it must be foreseeable to the accused that crime would be committed. The
25 correct legal standard for the JCE III mens rea requires that it was
Page 732
1 foreseeable to the accused that such a crime may be committed by a member
2 of the JCE or one or more of the persons used by any member of the JCE in
3 order to carry out the actus reus of the crimes forming part of the
4 common purpose, and the accused willingly took the risk that such a crime
5 might occur by joining or continuing to participate in the enterprise.
6 The Appeals Chamber thus applied the correct legal standard for the JCE
7 III mens rea to the evidence in the record. In relation to Mr. Sainovic,
8 it finds, Judge Liu dissenting, that it was foreseeable to him that
9 persecutions through sexual assaults might be committed in Beleg, Cirez,
10 and Pristina, and that he willingly took that risk. In relation to
11 Mr. Lukic, Appeals Chamber found it was foreseeable to him that
12 persecution through sexual assaults might be committed in Beleg, Cirez,
13 and Pristina, and that he willing took that risk. In relation to
14 Mr. Pavkovic, the Appeals Chamber found that it was foreseeable to him
15 that persecution through sexual assaults might be committed in Pristina
16 and that he willingly took that risk.
17 The Appeals Chamber therefore grants Prosecution's appeal in
18 relevant part and finds, Judge Liu dissenting, in relation to
19 Mr. Sainovic that the Trial Chamber erred by not finding Mr. Sainovic and
20 Mr. Lukic liable for persecutions through sexual assaults as a crime
21 against humanity in Beleg, Cirez, and Pristina. The Appeals Chamber
22 further found that the Trial Chamber erred by not finding Mr. Pavkovic
23 liable for persecution through sexual assaults as a crime against
24 humanity in Pristina. However, the Appeals Chamber, Judge Ramaroson
25 dissenting, declines to enter new convictions on appeal.
Page 733
1 Aiding and abetting.
2 Mr. Lazarevic's conviction for aiding and abetting.
3 I now turn to Mr. Lazarevic's arguments challenging the Trial
4 Chamber's findings that he fulfilled actus reus and mens rea of aiding
5 and abetting the crimes of deportation and inhumane acts, forcible
6 transfer.
7 Referring to the Perisic appeal judgement, Mr. Lazarevic submits
8 that the Trial Chamber erred in failing to determine whether his alleged
9 acts and omissions were specifically directed to assist the deportation
10 and the forcible transfer and thus in including that he aided, abetted
11 those crimes.
12 The Appeals Chamber disagrees with the holding in the Perisic
13 appeal judgement that Mrksic and Sljivancanin and the Lukic and Lukic
14 appeal judgement support that specific direction is an element of the
15 actus reus of aiding and abetting. For the reasons set out in the
16 judgement, the Appeals Chamber considers that Mrksic and Sljivancanin and
17 Lukic and Lukic appeal judgement, on one hand, and the Perisic appeal
18 judgement, on the other, diverge on the issue of whether specific
19 direction is an element of the actus reus of aiding and abetting
20 liability. The Appeals Chamber recalls that where it is faced with
21 previous decisions that are conflicting, it is obliged to determine which
22 decision it will follow or whether to depart from both decisions for
23 cogent reasons in the interests of justice. In view of the divergence
24 between the judgements, the Appeals Chamber, Judge Tuzmukhamedov
25 dissenting, will determine the correct approach.
Page 734
1 To this end, the Appeals Chamber has carefully examined the
2 jurisprudence of the Tribunal and the ICTR as well as the customary
3 international law and concludes, Judge Tuzmukhamedov dissenting, that a
4 specific direction is not an element of aiding and abetting liability.
5 Consequently, the Appeals Chamber, Judge Tuzmukhamedov dissenting,
6 rejects the approach adopted in Perisic appeal judgement as it is in
7 direct and material conflict with the prevailing jurisprudence on the
8 actus reus of aiding and abetting liability and with customary
9 international law in this regard.
10 In light of the foregoing, the Appeals Chamber finds that in
11 assessing the actus reus of aiding and abetting, the Trial Chamber was
12 not required to determine whether Mr. Lazarevic's acts were specifically
13 directed to assist, encourage, or lends moral support to the commission
14 of the crimes by the VJ. Thus his arguments to the contrary are
15 dismissed.
16 Mr. Lazarevic also contends that the Trial Chamber erred in
17 finding that he provided practical assistance, encouragement, and the
18 moral support to VJ forces in engaging in forcible displacement, that his
19 conduct had a substantial effect upon the commission of the crimes. He
20 first challenges the Trial Chamber's findings concerning his involvement
21 and participation in the planning and execution of joint operations of
22 the MUP and the VJ in Kosovo in 1999. The Appeals Chamber found that in
23 assessing Mr. Lazarevic's conduct, the Trial Chamber erred in relying
24 upon his issuance of the Grom 3 order to the Pristina Corps unit on
25 7 February 1999 as, at the time of the issuance of the order, he did not
Page 735
1 have the requisite mens rea. However, in light of the other evidence
2 relied upon by the Trial Chamber, the Appeals Chamber found that this
3 error does not affect the Trial Chamber's conclusion on Mr. Lazarevic's
4 participation in the planning and execution of joint operations in
5 Kosovo.
6 Mr. Lazarevic also challenges the Trial Chamber's finding that he
7 failed to take adequate measures to ensure the proper investigation of
8 serious crimes committed by the VJ and through this omission, therefore,
9 aided and abetted forcible displacement committed by the VJ forces. The
10 Appeals Chamber considered that while Mr. Lazarevic's failure to take
11 investigative and punitive measures against the commission of forcible
12 displacement may have had an effect on the ability of the military
13 prosecutor to pursue perpetrators for such crimes. This, in itself, is
14 not conclusive for the purpose of establishing aiding and abetting
15 liability. Rather, in order to fulfil the actus reus of aiding and
16 abetting, it must be demonstrated that any such omission substantially
17 contributed to the continued commission of the forcible displacement.
18 Absent such analysis in the Trial Judgement and in light of the
19 circumstances of this case, the Appeals Chamber considers that
20 irrespective of any failure on Mr. Lazarevic's part to take more adequate
21 measures to report, investigate, and initiate disciplinary measures, no
22 reasonable trier of fact could have found beyond a reasonable doubt that
23 his omission in this respect had a substantial effect on the commission
24 of the forcible displacement. Accordingly, the Appeals Chamber found
25 that the Trial Chamber erred in finding that Mr. Lazarevic aided and
Page 736
1 abetted the commission of the forcible displacement through his failure
2 to take adequate measures to ensure the proper investigation of serious
3 crimes committed by the VJ.
4 Mr. Lazarevic further challenged the Trial Chamber's finding that
5 his inspection of the VJ units provided encouragement and moral support
6 to VJ forces engaging in the forcible displacement. The Appeals Chamber
7 recalls that encouragement and moral support can only form a substantial
8 contribution to the crime when the principal perpetrators are aware of
9 it. The Appeals Chamber finds that the Trial Chamber erred in concluding
10 that the only reasonable inference was that Mr. Lazarevic's inspection of
11 the Pristina Corps units provided encouragement and moral support to the
12 perpetrators. Mr. Lazarevic's conduct in this respect could therefore
13 not to be considered as aiding and abetting the commission of deportation
14 and forcible transfer by the VJ forces.
15 The Appeals Chamber considers, however, that the identified
16 errors have no impact on the Trial Chamber's ultimate conclusion that
17 Mr. Lazarevic provided practical assistance to members of the VJ involved
18 in the commission of forcible transfer and the deportation and that it
19 had substantial effect on the commission of those crimes. The
20 Appeals Chamber recalls that the Trial Chamber found that Mr. Lazarevic
21 participated in the planning and execution of joint operations conducted
22 by the VJ and therefore substantially contributed to the commission of
23 the crimes by the VJ as such conduct provided assistance in terms of
24 soldiers on the ground to carry out the acts, organising and equipping VJ
25 unit, and the provision of the weaponry, including tanks, to assist those
Page 737
1 acts.
2 Mr. Lazarevic also argued that the Trial Chamber erred in finding
3 that he possessed the requisite mens rea for aiding and abetting the
4 crimes of deportation and the forcible transfer committed by the VJ.
5 Mr. Lazarevic submitted that the Trial Chamber erred in finding that
6 based on his knowledge of event and crimes in 1998, he was aware that
7 similar excessive uses of forces and the forcible displacement were
8 likely look to occur if he ordered the VJ to operate in Kosovo in 1999.
9 The Appeals Chamber notes that the Trial Chamber did not find that
10 forcible displacement took place in 1998. At most, the information
11 Mr. Lazarevic received in 1998 made him aware of the probability that the
12 VJ forces would use excessive and discriminate force or commit other
13 crimes if ordered to operate in Kosovo in 1999. However, the
14 Appeals Chamber considered that on the basis of such knowledge alone no
15 reasonable trier of fact could have concluded that the only reasonable
16 inference was that Mr. Lazarevic was aware of the forcible displacement
17 was likely look to occur if we ordered the VJ to operate in Kosovo in
18 1999. The Appeals Chamber thus finds that the Trial Chamber erred in
19 this respect.
20 However, for the reasons set out in the judgement, the Appeals
21 Chamber finds a reasonable trier of fact could have concluded that the
22 only reasonable inference from the evidence is that as of 24 March 1999,
23 when the first crimes in Pristina took place, Mr. Lazarevic was aware of
24 the campaign of terror, violence, and forcible displacement carried out
25 by the VJ and MUP forces against Kosovo Albanian population. Therefore,
Page 738
1 the Appeals Chamber dismisses the relevant part of Mr. Lazarevic's
2 appeal.
3 The Appeals Chamber thus upholds Trial Chamber's finding that
4 Mr. Lazarevic aided and abetted the crimes of deportation and inhumane
5 acts (forcible transfer).
6 Prosecution's appeal in relation to Mr. Lazarevic.
7 I now turn to Prosecution's appeal concerning Mr. Lazarevic's
8 acquittal of the charges of murder as crime against humanity, murder as a
9 violation of the laws or customs of war, and the persecution through
10 murder as a crime against humanity.
11 The Trial Chamber found that killings was not intended aim of the
12 VJ and the MUP organised campaign. For this reason, despite the finding
13 that Mr. Lazarevic was aware of the VJ members killing Kosovo Albanians
14 in some instances, the Trial Chamber concluded that he was not aware that
15 VJ and the MUP forces were going into the specific crime sites in order
16 to commit killings.
17 Prosecution argues that in acquitting Mr. Lazarevic of aiding and
18 abetting murder, the Trial Chamber erred in law in relation to the
19 mens rea standard of aiding and abetting. The Appeals Chamber finds that
20 the Trial Chamber applied a standard whereby it required that
21 Mr. Lazarevic be aware of the essential elements of the specific crime
22 committed, including, the mental state of the perpetrators. The Appeals
23 Chamber is therefore satisfied that the Trial Chamber applied the correct
24 legal standard.
25 In the alternative, the Prosecution contends that the Trial
Page 739
1 Chamber erred in fact by acquitting Mr. Lazarevic of aiding and abetting
2 murder. However, the Appeals Chamber finds that the Prosecution has
3 failed to show any error in the Trial Chamber's conclusion that
4 Mr. Lazarevic did not have the requisite mens rea. The Appeals Chamber
5 therefore dismisses the Prosecution's appeal, in the relevant part, and
6 upholds Mr. Lazarevic's acquittal for aiding and abetting murder.
7 Sentencing.
8 I now turn to question of sentencing. The Appellants and the
9 Prosecution have all appealed against the sentences imposed by the
10 Trial Chamber.
11 Having considered the parties arguments carefully, the
12 Appeals Chamber finds merit in the arguments of the Prosecution,
13 Mr. Sainovic, Mr. Lukic, pertaining to the Trial Chamber's failure to
14 individualise the sentences as well as Mr. Lukic's argument regarding the
15 assessment of his surrender as a mitigating circumstances. Accordingly,
16 the Appeals Chamber grants, in relevant parts, the appeals of
17 Prosecution, Mr. Sainovic, Mr. Lukic. The Appeals Chamber dismisses all
18 other grounds of appeal raised by the Appellants and the Prosecution in
19 relating to the sentencing.
20 I now turn to the impact of the Appeals Chamber's findings on
21 sentence.
22 In this context, the Appeals Chamber recalls that, in addition to
23 its findings on the parties appeals against the sentence, it reverses
24 certain convictions in relation to each Appellant. The Appeals Chamber
25 considered that in light of the circumstances of this case as well as the
Page 740
1 gravity of the crimes for which the Appellants are responsible, and
2 taking into account the principle of proportionality, a limited reduction
3 in the sentences imposed by the Trial Chamber is warranted in relation to
4 Mr. Sainovic, Mr. Lazarevic, and Mr. Lukic.
5 Disposition.
6 I shall now read out the full operative text of Appeals Chamber's
7 disposition.
8 For the foregoing reasons, the Appeals Chamber, pursuant to
9 Article 25 of the Statute and Rules 117 and 118 of the Rules, noting the
10 respective written submissions of the parties and arguments they
11 presented at the appeal hearing on 11th to 15th March 2013, sitting in
12 open session.
13 Mr. Sainovic, would you please stand up.
14 With respect to Nikola Sainovic, grants, in part, Mr. Sainovic's
15 first ground of appeal and reverses his convictions for committing
16 through his participation in a JCE murder as violation of the laws or
17 customs of war and murder and persecution through murder as crimes
18 against humanity in Bela Crkva, Mala Krusa, Suva Reka town, Izbica,
19 Djakovica town, Korenica, and Meja, and Gornja Sudimlja; count 3 in part,
20 count 4 in part, count 5 in part.
21 Grants subground 7(3) of Sainovic's appeal concerning sentencing.
22 Dismisses Judge Liu and Judge Tuzmukhamedov dissenting,
23 Sainovic's appeal in all other respects.
24 Reverses proprio motu Sainovic's convictions as a participant in
25 a JCE for deportation and inhumane acts, forcible transfer, as crimes
Page 741
1 against humanity committed in Tuslija, count 1 in part, and count 2 in
2 part.
3 Reverses Sainovic's conviction as a participant in a JCE for
4 deportation and inhumane acts forcible transfer as crimes against
5 humanity committed in Turicevac - count 1 in part, count 2 in part - as a
6 result of granting subground 1(f) of Lazarevic's appeal in part.
7 Affirms, Judge Liu and Judge Tuzmukhamedov dissenting, the
8 remainder of Sainovic's convictions under counts 1 and 5.
9 Allows in part, Judge Liu and Judge Tuzmukhamedov dissenting, the
10 Prosecution's third and fourth grounds of appeal and finds Judge Liu and
11 Judge Tuzmukhamedov dissenting, that the Trial Chamber incorrectly found
12 Sainovic not guilty for committing through his participation in a JCE
13 persecution through sexual assaults, as a crimes against humanity in
14 Beleg, Cirez, and Pristina. Count 5 in part. But declines
15 Judge Ramaroson dissenting to enter new convictions against him in this
16 regard.
17 Grants in part the Prosecution's sixth ground of appeal
18 concerning sentencing.
19 Dismisses the Prosecution's appeal concerning Sainovic's in all
20 other respects.
21 Sets aside the sentence of 22 years and imposes a sentence of 18
22 years of imprisonment subject to credit being given under Rule 101(C) of
23 the Rules for the period he has already spent in detention.
24 Mr. Sainovic, you may be seated.
25 Mr. Pavkovic, will you please stand.
Page 742
1 With respect to Nebojsa Pavkovic.
2 Dismisses Pavkovic's appeal in its entirety.
3 Reverses proprio motu Pavkovic's convictions as a participant in
4 a JCE for deportation and inhumane acts, forcible transfer as crimes
5 against humanity committed in Tuslija, count 1 in part and count 2 in
6 part.
7 Reverses Pavkovic's convictions as a participant in a JCE for
8 deportation and inhumane acts, forcible transfer as crimes against
9 humanity committed in Turicevac, count 1 in part and count 2 in part, as
10 a result of granting subground 1(f) of Lazarevic's appeal, in part.
11 Reverses Pavkovic's convictions as a participant in a JCE for
12 murder as a violation of laws and the customs of war, murder and the
13 persecution through murder as a crime against humanity with respect to
14 274 of the 287 Kosovo Albanian's killed in and around Korenica and Meja
15 during Reka valley operation, count 3 in part, count 4 in part, and
16 count 5 in part, as a result of granting ground Q of Lukic's appeal in
17 part.
18 Affirms the remainder of Pavkovic's conviction under counts 1 to
19 5.
20 Allows, in part, Prosecution's fourth ground of appeal and finds
21 that the Trial Chamber incorrectly found Pavkovic not guilty of
22 committing through his participation in a JCE, persecution through sexual
23 assaults as crimes against humanity in Pristina, Count 5 in part, but
24 declines, Judge Ramaroson dissenting, to enter new convictions against
25 him in this regard.
Page 743
1 Grants in part the Prosecution's sixth ground of appeal
2 concerning sentencing.
3 Dismisses the Prosecution's appeal concerning Pavkovic in all
4 other respects.
5 Affirms the sentence of 22 years of imprisonment, subject to
6 credit being given under Rule 101(C) of the Rules for the period he has
7 already spent in intention.
8 Mr. Pavkovic, you may be seated.
9 Mr. Lazarevic, will you please stand.
10 With respect to Vladimir Lazarevic, grants, in part, subgrounds
11 1(f) and 1(i) of Lazarevic's appeal and reverses his conviction for
12 aiding and abetting deportation and inhumane acts, forcible transfer, as
13 crimes against humanity committed in Turicevac and Kacanik town; count 1
14 in part and count 2 in part.
15 Grants in part subgrounds 3(e), 3(h), and 3(i) of Lazarevic's
16 appeal, and set aside the Trial Chamber's findings that: One, his
17 failure to take adequate investigative and punitive measures
18 substantially contributed to the commission of the crimes of forcible
19 transfer and deportation by VJ forces; and, two, his inspection of the VJ
20 units provided encouragements and moral support to the VJ forces engaging
21 in the forcible displacement.
22 Dismisses Lazarevic's appeal in all other respects.
23 Reverses proprio motu Lazarevic's conviction for aiding and
24 abetting deportation and inhumane acts, forcible transfer, as crimes
25 against humanity committed in Tusilje; count 1 in part and count 2 in
Page 744
1 part.
2 Affirms the remainder of Lazarevic's conviction under count 1 and
3 count 2.
4 Allows in part the Prosecution's fifth ground of appeal and finds
5 that the Trial Chamber incorrectly found Lazarevic not guilty for aiding
6 and abetting deportation and inhumane acts, forcible transfer, as crimes
7 against humanity committed in Zabare, Dusanovo, Sojevo, Staro Selo, and
8 Mirosavlje, count 1 in part and count 2 in part, but declines,
9 Judge Ramaroson dissenting, to enter new convictions against him in this
10 regard.
11 Grants in part Prosecution's sixth ground of appeal concerning
12 sentencing.
13 Dismisses the Prosecution's appeal concerning Lazarevic in all
14 other respects.
15 Sets aside the sentence of 15 years of imprisonment and imposes a
16 sentence of 14 years imprisonment subject to credit being given under
17 Rule 101(C) of the rule for a period he has already spent in detention.
18 Mr. Lazarevic, you may be seated.
19 Mr. Lukic, will you please stand.
20 With respect to Sreten Lukic.
21 Grants in part subground O(1)(e) and ground Q of Lukic's appeal
22 and reverses his conviction for committing through his participation in a
23 JCE murder as violation of the laws and the customs of war and murder and
24 persecution through murder through murder as a crimes against humanity in
25 Bela Crkva, Mala Krusa, Suva Reka town, Izbica, and Djakovica town, as
Page 745
1 well as respect to the 274 of the 287 Kosovo Albanians killed in and
2 around Korenica and Meja during Reka valley operation; count 3 in part,
3 count 4 in part, and count 5 in part.
4 Grants subground KK(3) KK(1) in part of Lukic's appeal concerning
5 sentencing.
6 Dismisses Lukic's appeal in all other respects.
7 Reverses proprio motu Lukic's conviction as a participant in a
8 JCE for deportation and inhumane acts, forcible transfer, as crimes
9 against humanity committed in Tusilje; count 1 in part, count 2 in part.
10 Reverses Lukic's conviction as a participant in a JCE for
11 deportation and inhumane acts, forcible transfer, as crimes against
12 humanity committed in Turicevac - count 1 in part, count 2 in part - as a
13 result of granting subground 1(f) of Lazarevic's appeal in part.
14 Affirms the remainder of Lukic's conviction under counts 1 to 5.
15 Allows in part the Prosecution's third and fourth grounds of
16 appeal and finds that the Trial Chamber incorrectly found Lukic not
17 guilty for committing through his participation in a JCE persecution
18 through sexual assaults as a crimes against humanity in Beleg, Cirez, and
19 Pristina, count 5 in part, but it declines, Judge Ramaroson dissenting,
20 to enter new convictions against him in this regard.
21 Grants in part the Prosecution's sixth ground of appeal
22 concerning sentencing.
23 Dismisses Prosecution's appeal concerning Lukic in all other
24 respects.
25 Sets aside the sentence of 22 years of imprisonment and imposes a
Page 746
1 sentence of 20 years of imprisonment subject to credit being given under
2 Rule 101(C) of the Rules for the period he has already spent in
3 detention.
4 Mr. Lukic, you may be seated.
5 Rules that this judgement shall be enforced immediately pursuant
6 to Rule 118 of the Rules.
7 Orders that in accordance with Rule 103(C) and 107 of the Rules,
8 the Appellants are to remain in the custody of the Tribunal pending the
9 finalisation of arrangements for their transfer to the state where their
10 sentences will be served.
11 Judge Liu Daqun appends a partially dissenting opinion and a
12 declaration.
13 Judge Arlette Ramaroson appends a dissenting opinion.
14 Judge Bakhtiyar Tuzmukhamedov appends a dissenting opinion.
15 Madam Registrar, would you please distribute copies of the
16 judgement to the parties.
17 Thank you very much.
18 Before concluding, I would take this brief opportunity to thank
19 all those who have contributed to the efficient conduct of this case and
20 to thank them for their constructive efforts.
21 This hearing of the Appeals Chamber of International Criminal
22 Tribunal for the former Yugoslavia stands adjourned.
23 --- Whereupon the hearing adjourned at 10.57 a.m.
24
25