1 Monday, 10 July 2006

2 [Prosecution Opening Statement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.00 a.m.

6 JUDGE BONOMY: Would the registrar please call the case.

7 THE REGISTRAR: Good morning, Your Honours. This is IT-05-87-T,

8 the Prosecutor versus Milutinovic et al.

9 JUDGE BONOMY: Good morning, everyone. For the commencement of

10 the trial you will see we are joined by Judge Nosworthy, as I intimated on

11 Friday, who is the Reserve Judge in this trial.

12 I now invite the Prosecutor, Mr. Hannis, to make his opening

13 statement.

14 Mr. Hannis.

15 MR. HANNIS: Thank you, Your Honour. Good morning.

16 During my presentation this morning, Your Honour, we will be

17 showing you some visuals, and I understand it may even be necessary for

18 you to press the e-court button to see those on your screen as we go

19 through.

20 Your Honours, in 1999 Kosovo was prominent in international

21 headlines with video images of conflict and convoys of thousands and

22 thousands of Kosovar Albanian refugees, women, children, and the elderly,

23 leaving the country on foot or in wagons drawn by tractors. This trial is

24 going to be about the how and the why that human exodus from Kosovo took

25 place and about who was responsible for it.

1 We say that the evidence in this case will show that these six

2 accused, Milan Milutinovic, Nikola Sainovic, Dragoljub Ojdanic, Nebojsa

3 Pavkovic, Vladimir Lazarevic, and Sreten Lukic, were co-participants with

4 Slobodan Milosevic and other Serbian political, military, and police

5 officials in a joint criminal enterprise, a JCE.

6 And I should tell you here at this point, Your Honours, that I

7 will probably use a number of acronyms during my remarks, and I've got a

8 list here that we'd like to hand around for everybody to use, if we could

9 do that now. I'll have my case manager hand them to the usher. I

10 understand the Defence already have received a copy.

11 The purpose of this joint criminal enterprise, this JCE, was to

12 manipulate or modify the ethnic balance in Kosovo in order to maintain and

13 continue Serbian control over the province of Kosovo. While motive, the

14 why question, is not a necessary element for us to prove in our case, it

15 is a factor that can help you, Your Honours, you Judges, you triers of

16 fact, to understand the evidence. You'll hear evidence about the

17 importance of Kosovo for the Serb leadership, and about the special

18 importance it held for Slobodan Milosevic.

19 In order to best explain what we believe the evidence in this case

20 will show, I'd like to take a journalistic approach to telling you this

21 real-life story, so we'll ask and answer the six basic questions of:

22 What? When? Where? Who? Why? And how?

23 Let me start off with the where question. Well, where is Kosovo.

24 I want to talk for a minute about the geography and the demographics of

25 Kosovo. To begin with it might be helpful to show a couple of maps and

1 talk briefly about the history of this place Kosovo. And during the trial

2 you'll hear it referred to in a variety of ways. Serb witnesses and

3 documents may refer to Kosovo i Metohija or sometimes the acronym KiM.

4 Kosovar Albanians may use the term Kosova, and most internationals and the

5 Prosecution team will use the term Kosovo.

6 Let's have a look at our first map of the area. Do you have that

7 on your screen, Your Honours?

8 Before the wars of the early 1990s, the former Yugoslavia, which

9 was then called the Socialist Federal Republic of Yugoslavia, or the SFRY,

10 looked like this. The Socialist Federal Republic of Yugoslavia was then

11 made up of six republics and in alphabetical order they were:

12 Bosnia-Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and Slovenia.

13 Within Serbian itself, there were two so-called autonomous provinces of

14 Vojvodina and Kosovo. We'll talk more about autonomous provinces and what

15 the term autonomy meant.

16 Now, as you can see on this map, Kosovo was located in the

17 southern part of the Republic of Serbia, which after the Dayton Peace

18 Agreement of December 1995 was a constituent republic of the federal

19 republic of Yugoslavia. Kosovo is boarded on the north and the north-west

20 by the Republic of Montenegro, on the west and south-west by the Republic

21 of Albania, and to the south by the former Yugoslav Republic of Macedonia.

22 Kosovo has been contested territory for much of its history.

23 Kosovo Albanians claim that their ancestors, Illyrians and Dardanians,

24 were the original inhabitants of the area. Serbs, on the other hand,

25 trace the beginnings of their political and religious history to medieval

1 Kosovo. Between 1912 and 1918, and again during World War II, Kosovo was

2 occupied by a number of different forces. At the end of the Second World

3 War, Kosovo was formally annexed to Serb.

4 You will find that Kosovo is a relatively small area

5 geographically. To illustrate this point, I'm going to show you a graphic

6 demonstrating the relative size of Kosovo compared to the Netherlands.

7 Note that Kosovo is barely over 150 kilometres at its

8 widest from one end to the other whichever direction you travel.

9 And next up on the screen for you we've got a map of Kosovo

10 showing the principal towns and cities, including in the right middle the

11 capital city of Pristina.

12 Next up we'll show you another map of Kosovo showing the

13 approximately 30 municipalities into which it was divided.

14 You may note that in our indictment and on some of the maps you'll

15 see during this trial there are alternate spellings listed for the various

16 place names, usually with the Serbian version first, followed by the

17 Albanian. In certain instances the name is the same in both languages,

18 but in others it's quite different. Some witnesses may refer to the

19 Serbian name and some will use the Albanian. We generally, on the

20 Prosecution team, will use the Serbian version so that the accused will be

21 aware of which locations we're talking about.

22 By the end of the trial, I suspect we'll all have a pretty good

23 idea for both the Albanian and Serbian versions of these place names.

24 Speaking now of the towns and the municipalities, who lived in

25 Kosovo? Well, primarily there were two ethnic groups: Albanians and

1 Serbs. Together they made up about 90 per cent of the population.

2 Prior to the conflicts in 1999, the last census with nearly

3 complete participation took place in 1981. At that time, it showed a

4 total population for Kosovo of approximately 1.585.000 citizens, of which

5 77 per cent were Albanians and 13 per cent were Serbs. The remaining 10

6 per cent consisted of several different ethnic groups, including Turks,

7 Roma, and a few more, all those lumped together in the category "others."

8 Kosovo Albanians boycotted the census carried out in 1991, but

9 general estimates of the population for Kosovo in 1998 suggest that the

10 total population in Kosovo for that year was in the neighbourhood of 2 to

11 2.2 million, of which Albanians constituted approximately 85 or 80 to 85

12 per cent and the Serbs approximately 5 to 10 per cent. These numbers and

13 percentages will be useful for you to remember later on when we talk about

14 the number of Albanians -- Kosovo Albanians forcibly transferred within

15 and deported from Kosovo during 1999.

16 Now, let me move on and talk about the when of this case. I'll

17 give you a brief history and chronology leading up to the 1999 conflict.

18 All the crimes charged in our indictment against these accused,

19 the persecutions, which include rapes, physical assaults, robbery,

20 destruction of property, looting, and destruction of religious and

21 cultural sites, and the murders, the forcible transfers, and the

22 deportations, all these occurred during the first half of 1999. The

23 indictment also alleges that the forces of the FRY, the Federal Republic

24 of Yugoslavia, and of Serbia had engaged in similar conduct in 1998. And

25 we'll talk more about that later on.

1 But for a better understanding of that first half of 1999 and the

2 events that occurred then, I need to give you a brief overview of some

3 history of the area.

4 In 1974, a new constitution was passed in the SFRY, which in

5 effect shifted the power from the central federal authority to the six

6 constituent republics we saw on our map earlier, Bosnia, Croatia,

7 Montenegro, Macedonia, Serbia, and Slovenia, and to the two provinces of

8 Vojvodina and Kosovo. These powers that were granted under the new

9 constitution included republican, or in case of Vojvodina and Kosovo

10 provincial, control over the judiciary, the police, and the educational

11 system. In addition, Kosovo was given representation in the federal

12 Assembly, the constitutional court, and the Presidency of the SFRY.

13 President Tito of Yugoslavia died in 1980 and political unrest

14 began to stir in Kosovo. In the 1980s, Kosovo Serbs voiced their concerns

15 about discrimination against them by the Albanian majority provincial

16 government. And you will recall the percentages, Albanians in Kosovo were

17 in a big majority.

18 In 1986, the so-called SANA memorandum, S-A-N-A, written by

19 certain Serbia intellectuals from the Serb Academy of Art and Science

20 became public, and that document spoke of a "physical, political,

21 judicial, and cultural genocide of the Serbian population in Kosovo and

22 Metohija."

23 Meanwhile, during this same time period in the 1980s, Kosovo

24 Albanians expressed their concerns about economic underdevelopment in the

25 province. Kosovo Albanians also sought additional political

1 liberalisation and they wanted to have republic status for Kosovo.

2 Beginning in the 1980s and continuing off and on through the 1990s, Kosovo

3 Albanians frequently staged demonstrations which were often forcefully

4 suppressed by military and police forces of Serbia.

5 In 1986 Slobodan Milosevic was on the rise in Yugoslav politics.

6 He was elected chairman of the presidium of the Central Committee of the

7 League of Communists of Serbia. In April 1987 he travelled to Kosovo and

8 for him he made what was a seminal speech to local Serbs, which marked his

9 apparent adoption of Serb nationalism. His speech received enormous

10 publicity, and it made him a hero in the eyes of many Serbs. It marked a

11 turning point in his career. We say he rode the rising tide of

12 nationalism in Serbia and came to gain even greater control of the

13 political leadership in the SFRY. In later years, Milosevic came to

14 believe that his political career would come to a sudden end if he gave in

15 to ethnic Albanian demands in Kosovo.

16 As about this same time, the Albanians in Kosovo were continuing

17 to press for greater independence. In October 1988, there were

18 demonstrations against Serb nationalism and over concerns about the

19 continued autonomy of the province. In February 1989, there were massive

20 worker strikes in Kosovo; in particular, by the mine workers. These were

21 against the threats of revocation of Kosovo's autonomy.

22 Slobodan Milosevic and the SFRY Presidency responded strongly to

23 this ongoing unrest in Kosovo. Declaring that the situation had

24 deteriorated to such an extent as to threaten the constitution, the

25 integrity, and the sovereignty of the country, the SFRY Presidency

1 imposed "special measures." These special measures re-assigned police

2 authority and responsibility for public security from the provincial

3 government of Kosovo back to the federal government of the SFRY.

4 On the 23rd of March, 1989, the Kosovo Assembly met and we, the

5 Prosecution, say they met under threat and duress and intimidation,

6 caused, in no small part, by the presence of tanks outside the Assembly

7 building. During that meeting the members voted to give up their control

8 of the police, education, choice of official language, and veto powers

9 over further changes to the Serbian constitution. A few days later the

10 Assembly of Serbia approved those changes to the constitution, and in

11 September 1990 passed this new constitution which revoked the autonomy

12 previously granted to Kosovo in 1974. The courts and the Municipal

13 Councils in Kosovo ceased to function. Not surprisingly, there followed

14 more strikes and demonstrations in Kosovo. These actions were strongly

15 repressed with scores of demonstrators killed and hundreds put on trial.

16 On the 600th anniversary of the Battle of Kosovo, a significant

17 event in the history of Serbs, on the 600th anniversary of that battle, in

18 June 1989, Slobodan Milosevic appeared before a crowd in Gazimestan in

19 Kosovo and made another speech in which he foreshadowed the possibility of

20 armed battles to come. We'd like to play just a short clip from that

21 speech, Your Honours. The audio is in B/C/S and you can hear the speaker

22 and the sounds of the crowd. The English subtitles appear on the screen.

23 So if you want to listen, you'll have to listen over your headphones.

24 If we could play that now.

25 [Videotape played]

1 JUDGE BONOMY: Mr. Hannis, there's no English translation on

2 the -- in the earphones at the moment.

3 MR. HANNIS: Your Honour, there was English subtitles.

4 JUDGE BONOMY: I saw that. So it wasn't -- we weren't intended to

5 hear?

6 MR. HANNIS: No.

7 JUDGE BONOMY: That's fine.

8 MR. HANNIS: Not for purposes of this presentation.

9 JUDGE BONOMY: All right. Thank you.

10 MR. HANNIS: During the next couple of years following the

11 imposition of these special measures, which discriminated against the

12 Kosovo Albanians and their efforts at greater independence, the political

13 situation in Kosovo grew increasingly tense. Serbia took over complete

14 control of the police, the courts, the educational system, et cetera.

15 Thousands of Kosovo Albanian professionals, doctors, professors, teachers,

16 police, and civil servants, were dismissed from their job. Police

17 violence against Kosovo Albanians was on the rise. In the early 1990s,

18 discriminatory measures were put in place that we say were the early

19 attempts by legislative means to alter the ethnic balance in Kosovo in

20 order to maintain Serb control of the province.

21 Just as the Albanian professionals were being removed from their

22 jobs because of their ethnicity, many were replaced by Serbs, whether

23 qualified for the position or not. Indeed, after the outbreak of the wars

24 in Croatia and Bosnia in the early 1990s, a number of Serb refugees from

25 those republics were relocated to Kosovo, and special incentives to lure

1 Serbs to settle in Kosovo were attempted, but this particular effort, this

2 kind of effort to alter the ethnic balance in favour of Serbs in Kosovo,

3 didn't meet with any great success.

4 In July 1990, the Kosovo Assembly passed an unofficial resolution,

5 declaring Kosovo to be an equal and independent entity within the SFRY;

6 that is, equal to the republics of Serbia, Croatia, Bosnia, et cetera.

7 The Assembly of Serbia responded within a matter of days by passing a

8 decision suspending or dissolving the Assembly of Kosovo.

9 Nevertheless, the suspended Kosovo Assembly remained active, and

10 in September 1990 they proclaimed a constitution for their would-be

11 Republic of Kosovo.

12 A year later, in September 1991, the Kosovo Albanians held an

13 unofficial referendum which was overwhelmingly in favour of independence.

14 This action was consistent with what was happening elsewhere within the

15 former Yugoslavia at that time. You will see referendums being held in

16 Bosnia, Croatia.

17 In May 1992, the Kosovo Albanians held unofficial elections for an

18 Assembly and president of their own Republic of Kosovo. Ibrahim Rugova, a

19 founder and member of the Democratic League of Kosovo, Lidhja Demokratike

20 e Kosoves - my Albanian is not very good - called LDK for short in my

21 remarks, Rugova was chosen president and six years later was re-elected to

22 that position. During the early 1990s the LDK led an official coalition

23 government in Kosovo, pursued a policy of non-violent civil resistance and

24 began establishing unofficial parallel institutions in the sectors of

25 education and health care in Kosovo.

1 Meanwhile, what was happening in the rest of Yugoslavia? Well,

2 for one thing, the old League of Communists was losing its strangle-hold

3 as the party of power. And 1990 saw the rise of many new political

4 parties throughout the country, including a number of nationalist parties.

5 Slobodan Milosevic was solidifying his power base. He was chosen as the

6 president of Serbia in December 1990. He also became president of a newly

7 founded Serbian Socialist Party, the SPS. The SPS became the most

8 powerful political party in Serbia and remained so until the year 2000.

9 The power of the party in the former Yugoslavia and in Serbia should not

10 be underestimated. As president of the SPS, Milosevic had enormous de

11 facto power, to hire and fire, to choose who would fill the most important

12 and most powerful positions in the government, in the media, in the banks,

13 in all the important positions in Serbia. Our accused, Milan Milutinovic

14 and Nikola Sainovic, both held prominent positions within the SPS and they

15 owed part of their de facto power to their membership in that party and

16 their personal relationship with Milosevic.

17 Elsewhere, the SFRY was beginning to break up in a succession of

18 wars. First briefly in Slovenia, then in Croatia and Bosnia, where the

19 fighting went on from 1991 and 1992 until the Dayton Peace Agreement was

20 signed in December 1995.

21 It's worth noting that the Dayton Accords made no mention of

22 Kosovo, which was certainly a disappointment for many Kosovo Albanians,

23 who may have held out hope that it might be a time when their quest for

24 independence could be addressed.

25 That disappointment on the part of Kosovo Albanians may help

1 explain subsequent events in Kosovo, in particular, a growing

2 disillusionment on the part of many Kosovo Albanians with Dr. Rugova and

3 the LDK's policy of peaceful, non-violent resistance. Although Rugova

4 managed in 1996 to reach an agreement with Milosevic that would have

5 returned certain educational rights and privileges to the Kosovo

6 Albanians, that agreement was never implemented.

7 At any rate, in the mid-1990s, a faction of Kosovo Albanians

8 organised a group known as Ushtria Clirimtare e Kosoves, or UCK in the

9 Albanian or, as known in English, the Kosovo Liberation Army, KLA as we

10 will refer to it, and the KLA, contrary to the position of the LDK,

11 advocated a policy of armed insurgency and violent resistance to the Serb

12 authorities in Kosovo.

13 By mid-1996 the KLA had begun launching armed attacks, primarily

14 against the Serb police forces. The Serb police responded in force with

15 numerous operations against suspected KLA bases and supporters in Kosovo,

16 and the persecution of Kosovo Albanian civilians became more common and

17 widespread. This alternating pattern of aggression by the KLA on the one

18 hand and the forces of the FRY and Serbia on the other continued

19 throughout 1997 and 1998 with an ever-increasing level of violence.

20 You'll note here my use of the term "forces of the FRY and

21 Serbia." As we noted in our indictment and our pre-trial brief, we use

22 that term to include not only units of the Yugoslav army, the VJ, and of

23 the Ministry of Interior, MUP, M-U-P, not just VJ and MUP forces in

24 Kosovo, but also various military territorial units, civil defence units,

25 village defence forces, armed locals, and volunteer units attached to,

1 assigned to, or otherwise incorporated into the VJ and the MUP, and we'll

2 talk more about that when we talk about the who of this case.

3 At the beginning of 1996 and 1997, the KLA was small in numbers,

4 poorly armed, and disorganised. Most of its leadership was abroad.

5 However, due in part to the availability of additional weapons, following

6 a collapse of law and order in neighbouring Albania and an ever-growing

7 number of volunteers, the KLA by 1998 grew to include several thousand

8 members and to become more and more active against the Serb police and

9 also at times against Kosovo Albanians believed to be loyal to the Serb

10 authorities.

11 The conflict intensified, and the Serb response to KLA activities

12 was widely viewed as being disproportionate and amounting to "excessive

13 and indiscriminate force" against Kosovo Albanian civilians. Villages and

14 towns were shelled and residents driven away. Peaceful demonstrations

15 were forcefully subdued -- I'm sorry, peaceful demonstrators were

16 forcefully subdued and arrested. The problem was significant enough to

17 gain the attention of the international community.

18 In March 1998, Serb forces carried out an operation in the Srbica

19 municipality, attacking the village of Donji Prekaz and killing about 50

20 people, including several women and children of the family of Adem Jashari

21 at their family compound. And when I use the term "compound" here, Your

22 Honours, I'm using it to describe a particular feature of Kosovo Albanian

23 architecture and a fairly common practice of building multi-generational

24 houses surrounded with walls and not to suggest that the Jashari family

25 home was an unusual military fortification of some sort.

1 Also in March 1998 the United Nations Security Council deemed it

2 necessary and appropriate to issue its Resolution 1160, which

3 condemned "the use of excessive force by the Serbian police forces against

4 civilians and peaceful demonstrators in Kosovo." It also condemned

5 activities of violence by the KLA.

6 By May of 1998, as a result of these operations by forces of the

7 FRY and Serbia, approximately 15.000 Kosovo Albanians had fled to Albania

8 and a total of about 28.000 persons had been displaced from their homes.

9 Despite the March 1998 UN resolution condemning these practices, Milosevic

10 and the forces of FRY and Serbia chose not only to continue with their

11 operations against the KLA, including against the civilian population in

12 areas where KLA operated, but to increase the level and the scope of that

13 campaign. In July 1998, the forces of the FRY and Serbia began a

14 large-scale offensive throughout the province of Kosovo. This operation

15 included, among other forces, various brigades of the VJ's Pristina Corps,

16 which was then commanded by our accused General Pavkovic, and special

17 units of the MUP.

18 It's interesting to note here that the month before the launch of

19 this big summer offensive, we see the creation of the Joint Command for

20 Kosovo and Metohija, with a mandate to coordinate civil affairs and the

21 activities of the army and the police, the VJ and the MUP.

22 The role and the importance of this Joint Command is reflected in

23 a VJ military order that you'll see during the trial dated the 7th of

24 July, 1998 from the commander of the 125th Motorised Brigade, declaring a

25 ban on operations without the knowledge and approval of the Joint Command.

1 Joint Command meetings occurred on almost a daily basis from July to

2 October 1998 during this big offensive, and three of our accused here,

3 Sainovic, Pavkovic, and Lukic, often attended those meetings. In 1999

4 we'll see our accused General Lazarevic joining those three in the Joint

5 Command and attending meetings. More about the Joint Command later on

6 when I talk about the who in question.

7 In the face of this continued campaign of disproportionate force

8 against the civilian population in Kosovo, the UN Security Council adopted

9 another resolution on the 23rd of September, 1998. Resolution 1199 called

10 for an immediate cease-fire in Kosovo, an international presence to

11 monitor that cease-fire, and the withdrawal of security forces used for

12 civilian repression. This resolution and the increasing outcry on both

13 the domestic and international fronts forced Milosevic to engage in

14 international negotiations with, among others, US Ambassador Richard

15 Holbrooke and NATO generals Klaus Naumann and Wesley Clark in late 1998.

16 NATO was on the verge of launching air strikes against Serbia if the use

17 of disproportionate and indiscriminate force against the civilian

18 population in Kosovo continued.

19 During the trial you'll hear some detailed evidence about these

20 negotiations which occurred in late October 1998. In addition to Slobodan

21 Milosevic, key participants from the Serb side included MUP General

22 Djordjevic and two of our accused here in court, Milan Milutinovic and

23 Nikola Sainovic.

24 Key provisions insisted on by NATO -- by the NATO team in these

25 negotiations were the secession of disproportionate force against the

1 civilian population and the reduction of VJ and MUP forces in Kosovo.

2 Eventually, after agreeing and signing the document, Milosevic

3 said he would try to find a solution for the Kosovo problem in the spring

4 of 1999 and that a pre-condition for a solution was to achieve balance

5 within or between ethnic groups. There wasn't an explanation of what

6 balance meant in that context. Nikola Sainovic expressed that the problem

7 related to a higher birth-rate among Kosovo Albanians and that they had to

8 find a solution which would not lead to the same problem in a few of

9 years. When Naumann and Clark asked for clarification, Milosevic said

10 they would do the same as they had done in 1945 and 1946 which, as he

11 further explained, was to gather them together and shoot them. Milosevic

12 suggested that the problem would be dealt with in the spring.

13 This 25 October 1998 agreement also called on the creation and

14 deployment of a verification mission from the Organisation for Security

15 and Cooperation in Europe, the OSCE, and it was to be called the Kosovo

16 Verification Mission or KVM, consisting of unarmed observers to deploy in

17 the province, to verify compliance with the terms of that October 25th

18 agreement. You'll hear evidence about the experience of the KVM monitors.

19 A United Nations report noted that by the end of October 1998

20 approximately 285.000 Kosovo Albanians had been displaced from their

21 homes. You'll remember our numbers about the total population in Kosovo

22 being 2 to 2.2 million with Kosovar Albanians being about 80 to 85

23 per cent. So do the math and you'll see 285.000 is a significant portion

24 of all Kosovo Albanians living in the province. And these 285.000 had

25 been displaced, either internally within Kosovo, some of them camping out

1 in the mountains and the forests, the fields, or in other villages, and

2 some across the borders of Kosovo to a neighbouring country. 285.000

3 represents more than 15 per cent of the total population of the province

4 at that time, almost one in every six or seven persons in the country, and

5 this is even before what I would refer to as the main event in 1999.

6 Unfortunately, the October agreements did not achieve the

7 hoped-for results. There were some initial withdrawals of Serb forces in

8 the beginning. However, the KLA quickly moved in to fill the void in

9 those areas and remained active against the forces of FRY and Serbia. By

10 December, the numbers of Serb forces were on the rise again. From their

11 arrival in November 1998 until their departure in March 1999, the KVM

12 observers noted in addition to operations against the KLA, there was

13 ongoing violence by the forces of FRY and Serbia against the civilian

14 population.

15 Another note of interest in the chronology here is that in late

16 1998, Slobodan Milosevic made certain key personnel changes in the VJ

17 command. In the Prosecution's view, and we believe as will be supported

18 in the anticipated evidence, these changes were in part to replace

19 individuals who had criticised or expressed concern about Milosevic's

20 policy in Kosovo and what they saw as an improper or inappropriate use of

21 the army.

22 The evidence supports the suggestion that the new faces were seen

23 as individuals who were willing to follow the course intended by Milosevic

24 in terms of solving in spring 1999 the Kosovo problem, the Kosovo problem

25 being ethnic imbalance. As a result of these changes, our accused General

1 Ojdanic became chief of the General Staff of the VJ. General Pavkovic was

2 elevated from commander of the Pristina Corps to command the 3rd Army, and

3 Vladimir Lazarevic moved up from his position of Chief of Staff to become

4 the commander of the 3rd Army subordinate unit in Kosovo, the Pristina

5 Corps.

6 Additional changes were made in regard to senior officers in 1999

7 for similar reasons. We say these moves were not limited to the VJ but

8 also took place in the MUP, in the police, where Radomir Markovic was

9 named to replace Jovica Stanisic as head of the State Security Service,

10 RDB being the acronym for that. And more about the MUP and the RDB when

11 we discuss the who question later on.

12 An operation by the forces of the FRY and Serbia in mid-January

13 1999 led over 40 Kosovar Albanians dead in Racak and gained international

14 attention when the head of the Kosovo Verification Mission visited the

15 site and made public statements about it. This event helped spur ongoing

16 efforts to stop the violence in Kosovo. Further international efforts to

17 resolve the crisis resulted in an international peace conference in

18 Rambouillet and Paris, France, in February 1999. Representatives for the

19 Serb side included Nikola Sainovic and Milan Milutinovic. The Albanians

20 were represented by their non-officially elected representatives, Ibrahim

21 Rugova, for one. There was also a delegation of the KLA involved in the

22 talks.

23 During these negotiations the fighting in Kosovo continued, and

24 Serb forces began to mass on the borders of Kosovo. The would-be peace

25 talks eventually collapsed in mid-March 1999. With the failure of these

1 negotiations, the KVM verifiers withdrew from Kosovo. On 23 March 1999, a

2 declaration of an imminent threat of war was proclaimed in the FRY. The

3 very next day, 24 March 1999, a "state of war" was declared and the NATO

4 bombs began to fall in Kosovo and elsewhere in Serbia.

5 Members of the joint criminal enterprise had already recognised as

6 early as February 1999 that there would be a window of opportunity when

7 NATO attacked, a window of opportunity for them to achieve their aim of

8 modifying the ethnic balance under the guise of crushing the KLA. When

9 that window did open, they acted swiftly by launching large joint

10 operations using the forces of the FRY and Serbia, the VJ and the MUP.

11 The JCE's objective of modifying the ethnic balance to maintain Serb

12 control in the province, that is by depopulating Kosovo of as many Kosovo

13 Albanians as possible in the course of the conflict with NATO, was largely

14 achieved by early April, although some more isolated operations continued

15 to occur after this.

16 And we'll talk in some more detail about the deportations and

17 killings alleged in the indictment when I talk about the what question,

18 but first I think now would be a good time to move to the who question.

19 Who? Who were the major players in this story? Now, let's talk

20 about what we expect the evidence to show regarding the most important

21 individuals and organisations involved in bringing about the events

22 underlying the crimes charged in our indictment.

23 First of all, Slobodan Milosevic. No account of the conflict in

24 Kosovo in 1999 could be told without mentioning him. He was the president

25 of the FRY. He was the undisputed political leader and, without question,

1 the most powerful individual in the country. At the time these crimes

2 were alleged in our indictment, his role in the joint criminal enterprise

3 was the boss-man, the one who gave orders, the primary planner and

4 instigator.

5 Milosevic surrounded himself with loyal followers who shared his

6 views about the importance of Kosovo to Serbia and who could be counted on

7 to take the necessary actions to modify the ethnic balance in Kosovo in

8 order to maintain Serbian control of the province. As president of the

9 FRY and president of the leading party, the SPS, he had significant

10 de jure and de facto ability to affect and control hirings, firings, and

11 promotions within the various organs of the government, the military, and

12 the police, and he used that ability to assure that he had like-minded

13 people in positions of power.

14 We spoke earlier about the importance that Kosovo held for

15 Milosevic. It was the place where his rise to power began. He also

16 believed that his ability to stay in power during and after the wars in

17 Croatia and Bosnia depended in part on maintaining control in and over

18 Kosovo. During various negotiations with internationals, Milosevic told

19 them that Kosovo was more important than his own head.

20 Milan Milutinovic. Milan Milutinovic was a high-ranking member of

21 the SPS and a close associate of Slobodan Milosevic. He was the president

22 of Serbia from December 1997 until December 2002. As the president of

23 Serbia, he was one of only three voting members on the Supreme Defence

24 Council, the SDC, and we'll talk more about the SDC this a bit. During a

25 declared state of war, which we know came into existence in the FRY on 24

1 March 1999, the highest leadership body became the "Supreme Command" which

2 we will also speak about a little bit later.

3 President Milutinovic was also a member of the Supreme Command.

4 Milutinovic's prominent position as president of Serbia, as a member of

5 the Supreme Defence Council and the Supreme Command, together with his

6 close relationship with Milosevic and his high status in the SPS, the

7 party in power, all combined to give him substantial de jure and de facto

8 influence and control over the army and the other organs and individuals

9 engaged in implementing the objectives of this joint criminal enterprise.

10 He exercised his authority to assist Milosevic in appointing and promoting

11 other members of the JCE to positions of high authority within the VJ.

12 His contributions to the joint criminal enterprise included being

13 Milosevic's front man, his public face to act as an intermediary with

14 various internationals and diplomats. One example of this is his role in

15 the 1999 February negotiations in Rambouillet.

16 He also made a key contribution to the objective of the JCE by

17 issuing on 31 March 1999, one week of the bombing, started by

18 issuing "decree on identification cards in time of war." You'll hear more

19 details about that when we talk about the deportation crimes.

20 But next I want to talk about another important individual, Nikola

21 Sainovic. By many accounts, Nikola Sainovic was an even closer associate

22 of Slobodan Milosevic. He was considered part of the inner circle. He

23 was also a high-ranking member of the SPS. From 1994 to 2000, he held the

24 post of Deputy Prime Minister of the FRY.

25 In 1998 and 1999, Sainovic was Milosevic's personal choice,

1 delegated with primary responsibility for Kosovo matters. International

2 diplomats wishing to speak with FRY authorities regarding Kosovo were

3 referred to Sainovic. He acted as head of the Joint Command for Kosovo i

4 Metohija in 1999. Sainovic was also a frequent participant at high-level

5 negotiations with international diplomats and others on Kosovo matters.

6 He acted as chair of the FRY Commission for Cooperation with the Kosovo

7 Verification Mission, and he was an active participant in the October 1998

8 negotiations with NATO and the February 1999 talks in Rambouillet.

9 We say that as Deputy Prime Minister of the FRY and Slobodan

10 Milosevic's designated representative for Kosovo matters, as head of the

11 Joint Command, Nikola Sainovic exercised authority and effective control

12 over the forces of FRY and Serbia which were operating on the ground in

13 Kosovo during 1999.

14 Next we'll talk about Dragoljub Ojdanic. From June 1996 to

15 November 1998, General Ojdanic held the position of Deputy Chief of Staff

16 of the VJ. On 24 November 1998, he was appointed by Slobodan Milosevic to

17 replace General Perisic as Chief of the General Staff. As Chief of the

18 VJ's General Staff, he was the highest ranking, most authoritative

19 uniformed officer in the VJ.

20 From the VJ's 1997 Manual of Command and Control it states

21 that "the commandants of the armies, the air force, and the anti-aircraft

22 defence and the navy are responsible to the chief of the General Staff of

23 the army, as are the commandants of units and temporary compositions

24 immediately subordinate to him." He also acted as chair of the VJ

25 collegium.

1 General Ojdanic, as chief of VJ's Main Staff, was also a member of

2 the SDC, the Supreme Defence Council, and after the state of war was

3 declared on 24 March 1999 he was a member of the Supreme Command and he

4 headed up the Supreme Command Staff.

5 As chief of the General Staff of the VJ and as a member during

6 wartime of the Supreme Command and the Supreme Command Staff, General

7 Ojdanic exercised command authority and effective control over the VJ and

8 units subordinated to it. In particular, he had command and control over

9 the VJ's army, commanded by General Pavkovic, and the Pristina Corps,

10 units operating in Kosovo during 1999, the Pristina Corps commanded by

11 General Lazarevic. In addition, after 23 March 1999, during a state of

12 war, under the FRY Law on Defence, Ojdanic as Chief of the Supreme Command

13 Staff exercised control over MUP units engaged in combat operations as

14 well as other organs subordinated to or acting in concert with the VJ.

15 Next, General Pavkovic, Nebojsa Pavkovic. From January 1998

16 through 25 December 1998, General Pavkovic was commander of the Pristina

17 Corps of the VJ's 3rd Army. On 25 December 1998 he was appointed by

18 Presidential Decree as commander of the 3rd Army. He took up those duties

19 on 13th of January, 1999, and he remained in that post throughout 1999.

20 Pavkovic was also a member and participant in the Joint Command in Kosovo

21 in 1998 and 1999.

22 Pavkovic had close personal ties with Slobodan Milosevic. He also

23 shared Milosevic's attitude about the importance of Kosovo for Serbia. He

24 publicly stated that "Serbian roots are in Kosovo and everything that is

25 connected to the Serbs throughout the past centuries is there."

1 Pavkovic's attitude toward the Kosovo crisis was set out in a July

2 1998 letter to his superiors, in which he bemoans the failure to engage

3 the VJ in a more vigorous role in Kosovo, and he speaks of the "loss of

4 Kosovo and the genocide of the Serbs."

5 As commander of the VJ's 3rd Army, General Pavkovic exercised

6 command authority and effective control over the 3rd Army, the Pristina

7 Corps, and other armed units in Kosovo subordinated to the VJ during 1999.

8 And according to the FRY Law on Defence, after the declaration of a state

9 of war on 24 March 1999, he also had de jure control over MUP units

10 engaged in combat operations in Kosovo.

11 Next on your screen you'll see General Lazarevic. During 1998,

12 Vladimir Lazarevic was Chief of Staff of the Pristina Corps in Kosovo. On

13 25 December 1998, when his immediate superior, General Pavkovic, was

14 elevated to command the 3rd Army, Lazarevic was appointed by Presidential

15 Decree to become commander of the Pristina Corps. He was an active member

16 and participant in the Joint Command in Kosovo. As the commander of the

17 Pristina Corps, Vladimir Lazarevic exercised command authority and

18 effective control over the VJ's Pristina Corps and other units

19 subordinated to it in Kosovo during the time period of the indictment.

20 And next on your screen Sreten Lukic. From May 1998 throughout

21 1999, Sreten Lukic was head of the MUP staff for Kosovo. As such, he was

22 the ranking MUP official on the ground in Kosovo. He commanded MUP

23 operations in Kosovo and was also a member/participant in the Joint

24 Command. As head of the MUP staff for Kosovo, Sreten Lukic exercised

25 command authority and effective control over MUP units deployed in Kosovo

1 and those units subordinated to the MUP in connection with operations in

2 Kosovo.

3 Now, I've talked about all our accused present here in the

4 courtroom, but I need to talk some more about a few individuals named as

5 being participants in the joint criminal enterprise. First of all,

6 Vlastimir Djordjevic. Djordjevic was a part of this original indictment,

7 as you know. Unfortunately, Mr. Djordjevic apparently will not be with us

8 during this trial. Although he's been indicted, he remains a fugitive and

9 we haven't been able to yet obtain his presence.

10 Vlastimir Djordjevic was assistant minister of internal affairs of

11 the Republic of Serbia. He was the chief of the Public Security Sector,

12 the RJB, another acronym I hope we'll all become familiar with, and that's

13 the uniformed side of the police. We'll talk more about the RJB and some

14 of its special units when we discuss the MUP in a few minutes.

15 Djordjevic reported directly to the minister of the interior, and

16 he was the accused Sreten Lukic's direct superior. Here you see all these

17 folks on an organisational chart showing the Supreme Command. We'll put

18 that up again in a minute, but I want to finish with a couple of key

19 players and we'll come back to this.

20 Vlajko Stojiljkovic was the minister of internal affairs of Serbia

21 from March 1998 until October 2000. He is since deceased, but we allege

22 that he was a member of the JCE and he will be mentioned often during the

23 trial. As the minister of internal affairs, he was the boss of the MUP.

24 He directed the work of the MUP and its personnel during the time-frame of

25 this indictment.

1 Next, Obrad Stevanovic. Obrad Stevanovic was also a member of the

2 Ministry of the Interior. He was on the public security side of the

3 house, the RJB. He headed up a subunit of the RJB called the police

4 administration, and you'll hear him mentioned often in this trial in

5 connection with the uniformed special units operating in Kosovo.

6 And one more, Radomir Markovic. He was also an assistant minister

7 of the MUP on the same level as Djordjevic. He was the chief of the State

8 Security Division, the RDB, as opposed to the public security, RJB. These

9 were mostly the plain-clothes police operatives, the secret police, if you

10 will, primarily involved in the collection of information and intelligence

11 related to state security of the Republic of Serbia, but you'll hear later

12 that they did have a uniformed unit that participated.

13 Now, let me talk about some of the organisations or units, groups,

14 involved in the events in 1999. The Yugoslav Army, the VJ. On your

15 screen now you should have an organisational chart showing the command

16 structure of the army. At the top you'll see General Ojdanic as Chief of

17 the General Staff during peacetime and Chief of the Supreme Command Staff

18 after declaration of a state of war on 24 March 1999. He was, if you

19 will, the top dog in the uniformed military chain of command.

20 One of his direct subordinates, and you'll see on this chart

21 immediately below him, was General Pavkovic, commander of the 3rd Army.

22 One level further down on the chain and on the right-hand side of the

23 chart, you'll see another of our accused, General Lazarevic, then the

24 commander of the Pristina Corps which had primary responsibility for the

25 area of Kosovo. Beneath him you'll see some 20 different brigades,

1 battalions, et cetera, of infantry, armour, and special forces.

2 The Yugoslav Army, the VJ, its overall controlling body was the

3 General Staff, which, as I said, during a state of war became the Supreme

4 Command or the Supreme Command Staff. The following strategic groups were

5 subordinate to the General Staff of the army: The 1st Army, the 2nd Army,

6 the 3rd Army, the air and air defence forces, and the navy. In Kosovo, it

7 was units of General Pavkovic's 3rd Army that were active during the

8 time-frame of this indictment. In particular, Kosovo was the primary area

9 of responsibility of the Pristina Corps under General Lazarevic. If I

10 occasionally use the generic term "the army" or "soldiers" I'm referring

11 to elements or personnel of the VJ.

12 The VJ was a modern, professional army. The right of command in

13 the VJ belonged to the FRY president, Milosevic, and to designated

14 officers, including the Chief of the General Staff, Ojdanic, and

15 commanding officers of the units, Pavkovic for the 3rd Army, Lazarevic for

16 the Pristina Corps, et cetera. Command in the VJ was based on the

17 principles of unity of command, singleness of command, and the obligations

18 to carry out lawful orders of a superior.

19 The exercise of command in the VJ included the development of

20 plans and the production of orders by the General Staff. Direction,

21 including orders, was issued by the General Staff on the authority of

22 Ojdanic as its chief, they went to the 3rd Army, Pavkovic. The 3rd Army

23 continued the same process and passed direction and orders down to the

24 Pristina Corps and General Lazarevic, which in turn issued orders to its

25 subordinate brigades and battalions. This is a standard core process in a

1 professional army in which a superior headquarters develops plans and

2 provides direction and orders to suborder units which were carried out at

3 each level in the VJ hierarchy and is common, as I said, to any

4 professional army.

5 So we have direction and orders from the highest level of command

6 being transformed ultimately into combat and other operations on the

7 ground in Kosovo. Many of the VJ's operations were conducted with the MUP

8 and/or with military-territorial units and coordinated through the Joint

9 Command. The VJ also had a system of military discipline and justice, and

10 we'll talk more about that in a later discussion about criminal liable

11 under Article 7(3) of the Statute of this Tribunal for failure to prevent

12 or punish crimes by subordinates.

13 Next we'll talk about the MUP, the Ministry of Interior, or the

14 police. On your screen you have an organisational chart. The Ministry of

15 Interior was mandated by Serbian law to protect human lives and the safety

16 of persons and their possessions and to maintain law and order. I may

17 occasionally use the generic term "police" by which I mean units and/or

18 personnel of the MUP.

19 You'll see the minister at the top. You'll see that the MUP had

20 two main branches: The Public Security Division, that is the uniformed

21 division, the RJB, headed by the fugitive, Vlastimir Djordjevic, and the

22 State Security Division, the RDB, the secret police, headed by Radomir

23 Markovic.

24 In addition to the regular uniform police which did the regular

25 day-to-day police work we all know about, crime prevention and

1 investigation, enforcement of traffic laws, et cetera, the RJB side of the

2 MUP also had a number of special units which were heavily armed and

3 specially trained and equipped to conduct operations, including combat,

4 and which kinds of things could not be done by the regular police force.

5 In Kosovo in 1998 and 1999, the following specials were actively

6 engaged. And on the RJB side of the house under MUP staff you'll see

7 three blocks. The Special Police Units, or the PJP; the Operational Sweep

8 Groups, the OPG; and the special anti-terrorist unit, the SAJ. Over on

9 the other side of the house in the Ministry of Interior, the state

10 security side under Rade Markovic in the RDB, even though it was primarily

11 an intelligence and information gathering body, it also had its own

12 special unit which wore uniforms and engaged in combat operations in

13 Kosovo. This RDB special unit was called the Special Operations Unit with

14 the acronym JSO.

15 On the chart, as I said, you'll see all four of these falling

16 under the MUP staff, recall that Sreten Lukic was the head of the MUP

17 staff in Kosovo at this time.

18 In addition to all this, the MUP had reservists to supplement its

19 regular contingent. MUP reservists of Serb ethnicity formed the core of

20 local defence units established in many parts of Kosovo. As I said,

21 within Kosovo province, the standard work of the MUP was divided on a

22 geographical basis. There were seven separate regional headquarters

23 called Secretariats of the Interiors, or SUPs, I hate to give you another

24 acronym, but S-U-P. The SUPs, for short, were responsible for the public

25 security task in the municipalities making up the Kosovo province.

1 On your screen you should see the regional SUPs. And now we'll

2 put up another one to show you the municipalities that were covered by

3 each of these seven regional SUPs.

4 Next I want to talk about the Supreme Defence Council. The 1992

5 FRY constitution places primary responsibility for the defence of the

6 country with the SDC, the president of the FRY and the VJ. In 1999 the

7 SDC was composed of the president of Serbia, Milan Milutinovic; the

8 president of Montenegro, Milos Djukanovic; and the FRY president, Slobodan

9 Milosevic. Those were the only three voting members of the SDC. General

10 Ojdanic, as Chief of the General Staff of the army, was one of the

11 non-voting members of the SDC. The SDC was the highest authority

12 responsible for strategic matters relating to the defence of the Federal

13 Republic of Yugoslavia. Its mandate under the FRY constitution was to

14 decide upon matters of national defence, including the national defence

15 plan, and the careers of general officers of the VJ.

16 Now if we can go back to the diagram we had before, we'll talk

17 about the Supreme Command.

18 During a state of war, as we said beginning 24 March 1999, the

19 Supreme Command became the highest military-civilian leadership body in

20 the FRY. In effect, it takes the place of the SDC. It was headed by

21 Slobodan Milosevic as Supreme Commander. It formulated strategy and

22 issued directions and commanded operations by the forces of the FRY and

23 Serbia during the declared state of war. Other members of the Supreme

24 Command included Milutinovic, Ojdanic, and the FRY minister of defence.

25 During the state of war, the VJ General Staff became the Supreme

1 Command Staff, again with General Ojdanic as its chief. The direction

2 provided by the Supreme Commander, Milosevic, determined the activities of

3 both the Chief of the Supreme Command Staff, General Ojdanic, and the head

4 of the Joint Command, Nikola Sainovic, and all units under their command,

5 control, and direction.

6 Let me speak for a moment about the Joint Command for Kosovo and

7 Metohija. The Joint Command were Kosovo and Metohija was set up in June

8 1998. This is about the time of the big summer operation I spoke of

9 earlier, and it continued to function during the first half of 1999. It

10 got its direction from President Milosevic. Its role was to coordinate

11 civil affairs and the activities of the VJ, the MUP, and other armed

12 organisations and groups in Kosovo. In the beginning, it was headed by

13 Milomir Minic, a high-ranking member of the SPS and of Milosevic's inner

14 circle, but then Nikola Sainovic became the de facto head of the Joint

15 Command. Other members or participants included Pavkovic, Lazarevic, and

16 Sreten Lukic, as well as the head of the local Temporary Executive

17 Committee, a man named Zoran Andjelkovic.

18 Now, the Joint Command was not a body provided for in the FRY

19 constitution or in the statutory scheme of the FRY or of Serbia. It had

20 the endorsement, however, of Slobodan Milosevic and it was accepted by the

21 other members of the joint criminal enterprise. The Joint Command was

22 responsible for ensuring that the forces of the FRY and Serbia in Kosovo

23 carried out operations in a coordinated manner and in accordance with the

24 political objectives of the leadership, that is of Milosevic and his

25 fellow members of the JCE --

1 JUDGE CHOWHAN: I apologise interfering and bothering you. It

2 means that this Joint Command was not in the text of the constitution?

3 MR. HANNIS: That's correct.

4 The Joint Command was closely involved in the planning, execution,

5 and monitoring of the various combat operations in Kosovo during the first

6 half of 1999. In effect, the Joint Command brought together the two

7 separate chains of command of the VJ and the MUP that you see on the

8 screen.

9 Now, let's have a look at one of our accused had to say about the

10 Joint Command. In June 2001 in the context of a public debate between our

11 accused General Pavkovic and General Sreten Lukic, General Pavkovic had

12 the following to say about the Joint Command and its role in connection

13 with the VJ and the MUP.

14 "The police had their own headquarters, headed by their own

15 officers, and the cooperation with the army was coordinated through

16 political actors in Joint Command formed for the purpose. Therefore, the

17 information to what the police force units were doing can best be provided

18 by the police commanders and the members of the Joint Command in charge of

19 them."

20 At this point I should alert Your Honours to the existence of

21 another body in Serbia that was sometimes referred to as Joint Command.

22 During 1998 and 1999 in Belgrade in Serbia there was another ad hoc body

23 composed of high-ranking political, military, and police officials which

24 met and discussed matters relating to the events and actions in Kosovo.

25 The participants in this body included Milosevic, Sainovic, Ojdanic, and

1 Pavkovic, among others. Now, this body had no apparent basis in law nor

2 an official title. In addition to being referred to as "Joint Command,"

3 it was sometimes also referred to as the "State Commission" or

4 the "Inter-Departmental Staff for the Suppression of Terrorism."

5 This group met in Belgrade and is to be distinguished from the

6 Joint Command in Kosovo that met in Pristina in Kosovo during 1998 and

7 1999. When we, the Prosecution team, use the term "Joint Command," we'll

8 be talking about the body that met in Kosovo, even though many of the same

9 people were on both -- both groups. We refer to "Joint Command" to mean

10 the body that met in Kosovo. References to the Belgrade group will be

11 specifically identified in another fashion if we talk about that.

12 The MUP staff in Kosovo was located in Pristina and from June 1998

13 until June 1999 was headed by Sreten Lukic. Its purpose was to manage the

14 work of MUP on the suppression of terrorism in Kosovo and to organise and

15 direct the work of MUP units when performing more complex security tasks

16 in the province. Other members of the MUP staff in Kosovo included RDB,

17 state security, secret police department heads in Kosovo, as well as the

18 chiefs of the seven regional MUPs in Kosovo. As head of staff of the MUP

19 in Kosovo, Sreten Lukic was required to report to the minister of internal

20 affairs. Daily situation reports went to, among others, the minister, the

21 assistant ministers heading the RJB and the RDB, that is Vlastimir

22 Djordjevic, the uniformed side of the house, and Rade Markovic, the secret

23 police side of the house. In addition to those regular daily reports, the

24 seven regional SUP chiefs were required to report significant events, not

25 only to the MUP staff in Pristina and General Lukic, but also directly to

1 MUP headquarters in Belgrade.

2 This reporting regime was supplemented by the fact that MUP

3 higher-ups, such as the minister himself, the RJB public security head,

4 Djordjevic; and the head of police administration, that is Obrad

5 Stevanovic; and Nikola Sainovic often attended regular meetings with the

6 MUP staff for Kosovo. At these meetings, Sainovic not only passed on

7 direction from above but was also able to gain information about the

8 situation on the ground and pass it up to Milosevic.

9 I have one more, Your Honour, before the break if that's

10 convenient.

11 I want to briefly mention the TEC, or the Temporary Executive

12 Council, which you will hear mention of. The TEC was created by the

13 Serbian National Assembly in 1998 with the proclaimed purpose of

14 strengthening the work of the civilian structures in Kosovo. It had

15 significant powers over provincial administration authorities. Zoran

16 Andjelkovic, the Serbian minister for youth and sports and also a

17 high-ranking member of the SPS, was named the president of the Temporary

18 Executive Council. He also attended meetings of the Joint Command in

19 Pristina.

20 The evidence will show that our accused were members of one or

21 more of these various organs described in my foregoing remarks and, as

22 such, they made various contributions to the joint criminal enterprise

23 with the intention that the objective of modifying the ethnic balance in a

24 way to ensure Serbian control over Kosovo would be achieved. Detailed

25 descriptions of the various contributions to the JCE by each of the

1 individual accused are set forth in our pre-trial brief and you'll hear

2 more about them during the trial. But for now, I think that's enough to

3 answer the who question before I move on to the what.

4 And, Your Honours, if it's convenient, this would be a good moment

5 to take a break, if I may.

6 JUDGE BONOMY: It is convenient, Mr. Hannis. Thank you.

7 [Trial Chamber and legal officer confer]

8 JUDGE BONOMY: Well, we'll adjourn now and resume at 11.00.

9 --- Recess taken at 10.25 a.m.

10 --- On resuming at 11.00 a.m.

11 JUDGE BONOMY: Please continue, Mr. Hannis.

12 MR. HANNIS: Thank you, Your Honour.

13 When we broke, Your Honours, I just finished speaking about the

14 who, and we've already talked about the where and the when. Now I want to

15 talk about the what and how regarding the charged crimes.

16 These accused are charged with persecutions, forced transfers,

17 deportations, and murders committed in the first half of 1999 in Kosovo.

18 The evidence will show that during the time period of our indictment there

19 was an ongoing armed conflict in Kosovo, at first between the forces of

20 the FRY and Serbia on one hand and the KLA on the other; later, between

21 the forces of the FRY and Serbia on the one hand and NATO and the KLA on

22 the other. During this conflict, thousands of Kosovo Albanian civilians

23 and non-combatants were killed by forces of the FRY and Serbia. As many

24 as 800.000 were forcibly transferred and/or deported from Kosovo, and

25 800.000, that's more than one in three of the total population of Kosovo

1 Albanians estimated to be living in Kosovo at the time -- actually, it's

2 one in three of the total population, rechecking my math, and one in two

3 of the Kosovo Albanian population.

4 Although our indictment begins with 1 January 1999, you will know

5 from the indictment and the pre-trial brief and my earlier comments on the

6 chronology leading up to 1999, that the crimes in 1999 are just the final

7 chapter in a campaign of persecutions that -- and escalating violence

8 that -- engaged in by the forces of Socialist Federal Republic of

9 Yugoslavia and Serbia and their leaders to try and maintain physical and

10 political control of the province of Kosovo in the face of ever-growing

11 demands by Kosovo Albanians for increased autonomy or independence.

12 With the onset of the NATO bombing, the forces of FRY and Serbia

13 stepped up their programme to remove the Kosovo Albanians. In only one

14 week, the very first week of the war, between 24 and 30 March 1999, the

15 United Nations data reflects that some 94.000 Kosovars fled Kosovo. Many

16 reported that they didn't know where their men were, as they had been

17 separated from them at the time they were expelled. Many reported that

18 they had been deliberately expelled and explicitly told to leave and they

19 also reported their homes had been destroyed by the Serb forces. Many

20 reported that they had to leave on little or no notice at all, forced to

21 flee at night, on foot, in freezing temperatures, often with nothing more

22 than the clothes on their backs and whatever few things they could carry

23 in their hands as they rushed out the door. Many reported having been

24 rounded up by the Serb forces and put on trains or buses to be taken to

25 the border for expulsion to Albania or to Macedonia. Some of the very

1 young and the very old died during this mass exodus.

2 Your Honours, at this juncture we'd like to show you a brief video

3 depicting some scenes of the Kosovo Albanians leaving Kosovo. I think the

4 total time is less than two minutes, and we'll play it now without any

5 audio. And these segments are all from video excerpts we intend to

6 introduce at the trial later on.

7 So if we could play that video. The first is a refugee convoy at

8 the Albanian border.

9 [Videotape played]

10 MR. HANNIS: You'll see them in the convoys and the tractors

11 pulling wagons full of people.

12 Next we have some of the refugees walking along the railway line

13 from Kosovo into Macedonia.

14 [Videotape played]

15 MR. HANNIS: And the next segment shows them on -- getting on the

16 train to go to Macedonia.

17 [Videotape played]

18 MR. HANNIS: Also walking on foot.

19 [Videotape played]

20 MR. HANNIS: Next one shows them in arriving in -- gathering in a

21 field once they've left Kosovo. And the last one is a scene of one of the

22 camps on the Kosovo-Macedonia border, showing the thousands of refugees.

23 [Videotape played]

24 MR. HANNIS: Now, it's quite possible that there will be a

25 suggestion that these people left because of the NATO bombing rather than

1 because of attacks by the forces of the FRY and Serbia. We submit that

2 the evidence will show that the vast majority of these refugees fled

3 because of the VJ, the actions of the army and the police and the other

4 forces of the FRY and Serbia, not because of the NATO bombs. Many of the

5 Kosovo Albanian witnesses will tell you they welcomed the NATO bombing.

6 Of particular assistance to the Chamber in this regard in dealing

7 with this issue will be the evidence of an expert witness, Dr. Patrick

8 Ball, who testified in the Milosevic case. In his expert report, he

9 specifically addresses this question of whether the refugee flows were the

10 result of the actions of the forces of the FRY and Serbia, the NATO

11 bombing, or the KLA activity. His conclusion corroborates the evidence of

12 the crime base witnesses whom we intend to present, which is that they

13 left as a direct consequence of the acts of the forces of the FRY and

14 Serbia, not because of the NATO bombing, not because of the KLA activity.

15 At this point in time, 24th of March, 1999, immediately following

16 the evacuation of the KVM monitors and with the beginning of the NATO

17 bombing, the forces of the FRY and Serbia had a perfect opportunity to

18 step up their campaign of ethnic removal and at the same time to be able

19 to claim that others were to blame for the departure of the Kosovo

20 Albanians. We contend that the evidence and the witnesses will show that

21 this is exactly what they did do.

22 All across Kosovo in a concerted and coordinated manner, the

23 forces of the FRY and Serbia began their widespread and systematic attack

24 on the Kosovo Albanian civilian population, going from one tiny village to

25 the next and from one town to another, murdering, beating, robbing,

1 looting, destroying businesses and mosques, and forcing out the Kosovar

2 Albanians in front of them. They burned and destroyed villages or towns

3 as they went in order to leave nothing behind for those expelled to return

4 to.

5 The evidence will show a typical pattern occurred in which the

6 Serb forces would nearly encircle a town or village, leaving one avenue of

7 escape. The VJ would commence shelling with artillery and heavy weapons.

8 Then the MUP units, including special units and volunteers, incorporated

9 or otherwise attached to the MUP or VJ, would enter the town, force the

10 people out, sometimes killing or raping as they did so, and often looting

11 and then burning the abandoned houses.

12 This kind of activity understandably created an atmosphere of

13 terror, and the inhabitants of neighbouring villages seeing this happen

14 and hearing the stories of the primary victims would join in fleeing to

15 avoid a similar fate as that suffered by their neighbours. And so the

16 massive convoys seen in the international media quickly came into

17 existence from the end of March 1999 as thousands and thousands of Kosovo

18 Albanians literally fled for their very lives.

19 In this regard, you may also hear a suggestion that the forces of

20 FRY and Serbia were not forcing civilians out but instead were merely

21 escorting them to safety to the borders, where they were voluntarily

22 seeking to go to avoid the NATO bombing. The evidence will refute that

23 suggestion. Of particular note on this point is the evidence of many

24 witnesses about how en route out of the country and at the borders, forces

25 of the FRY and Serbia regularly forced the refugees to hand over their

1 identity documents, and they took the vehicle licence plates off their

2 tractors and their cars and the wagons before they'd left Kosovo and went

3 into Albania or Macedonia.

4 To what purpose would that be if they indeed were only be escorted

5 to temporary safety? Why would they or should they surrender their

6 identity documents upon leaving the province? We suggest it's a clear

7 manifestation of the joint criminal enterprise's objective to modify the

8 ethnic balance of Kosovo in order to maintain Serb control. Once outside

9 the country and with no official identity documents, how were those

10 refugees going to be able to return to Kosovo under Serb authorities who

11 could simply say: Sorry, it looks like you're simply an illegal immigrant

12 from Albania. You can't come in now.

13 You'll remember earlier when I was discussing President

14 Milutinovic and his contribution to the joint criminal enterprise, we

15 mentioned the decree on identification cards in time of war. I'd like to

16 put that up on your screen now and have a quick look at that. You'll see

17 it provided that any persons who "lose their identity cards or are

18 otherwise left without them" are obliged to report this within 24 hours to

19 the organisational unit of the Ministry of the Interior, the MUP, which

20 has jurisdiction in the place where the identity card was lost. It goes

21 on to say those persons then are obliged to request a new card in their

22 place of residence within eight days.

23 Now, think about that as a practical matter. How would this work

24 in real life for the tens of thousands of Kosovo Albanians being forced

25 from their homes in the spring of 1999? What sense in reporting the loss

1 of your identity card to the local MUP when your card is being taken by

2 you by a local policeman? And who would dare turn around and travel back

3 to their home village, in the light of what they had just witnessed, to

4 apply for a new card? To even do so under the circumstances would have

5 been sheer folly and maybe even downright suicidal. The logical inference

6 from all of this conduct and the timing of this decree is that there was

7 an intention that those Kosovar Albanians, once removed, would not be

8 allowed to return, thus effecting the desired modification of the ethnic

9 balance necessary to solve the Kosovo problem.

10 The indictment reflects the widespread nature of this campaign.

11 Our indictment includes 12 killing sites, which now we'll be leading the

12 evidence of nine on, and 13 deportation sites. This is not a complete

13 list of all crimes that allegedly happened in Kosovo or were reported to

14 investigators, rather these were selected as a representative sample

15 sufficient to show the existence of a pattern and to reflect the scope and

16 nature of the campaign throughout the province of Kosovo.

17 First I'd like to talk about what we refer to as the killing

18 sites. Now on your screen we'd like to show you a map with red circles

19 for the locations of the killing sites listed in the indictment. I'm not

20 going to talk about each and every one, but I do want to talk about some

21 of them.

22 First of all, I want to talk about Bela Crkva. Bela Crkva was in

23 Orahovac municipality, and the alleged crimes occurred there on the 25th

24 of March, the day after the beginning of the NATO bombing. Forces of the

25 FRY and Serbia attacked the village of Bela Crkva in Orahovac. Many of

1 the villagers fled along a small river and hid under a railroad bridge.

2 Serbian police opened fire on one group of villagers hiding under the

3 bridge, killing 12 people, ten of them women and children. The remaining

4 villagers were ordered out of the streambed and out from under the bridge.

5 The men and the older boys were separated, ordered to strip, and then they

6 were robbed of their valuables and their identity documents. The women

7 were then ordered to leave, to go to another nearby village. The village

8 doctor tried to intercede with the police commander, but he and his nephew

9 were shot and killed on the spot. The remaining boys and men then were

10 ordered back into the streambed. The Serb forces opened fire, killing

11 most of them. A few survivors lived to tell the tale.

12 The village was destroyed. Later exhumations confirmed the deaths

13 of over 50 villagers from Bela Crkva.

14 And I'd like to put up on the screen for you an aerial photo of

15 Bela Crkva. On the left you see a photo of the village on the 11th of

16 March, 1999, two weeks before the attack; and on the right is the 2nd of

17 April, a week after. You'll see the damage to the buildings. You'll see

18 the note at the bottom of the image indicated that the image on the right

19 is rotated 180 degrees, and I'm sorry we weren't able to fix that before

20 we started. But you can see the river on the right-hand side of the right

21 image; you'll see on the left-hand side that the river is on the left. So

22 if in your minds you can flip the right half of the image upside down,

23 you'll see that the features match up the river, the big white building in

24 the middle, et cetera.

25 Now, let's go to Mala Krusa. Mala Krusa is also located in the

1 municipality of Orahovac. Also on the day after the NATO bombing began,

2 just a few kilometres down the road from Bela Crkva, the forces of the FRY

3 and Serbia were attacking the villages of Mala Krusa and Velika Krusa.

4 The villagers fled into the nearby forest, and they could see the

5 attackers looting and burning their homes. The next morning, the 26th of

6 March, the Serb forces located many of the villagers on the outskirts of

7 town. They ordered the women and children to leave and to go to Albania.

8 The men and older boys were detained, searched, and robbed of their

9 valuables and their identity documents. The forces of FRY and Serbia then

10 forced the men and older boys into a nearby house and began shooting at

11 them with machine-guns. They then set fire to the house. Approximately

12 100 were killed in this massacre.

13 Next I want to talk about Suva Reka. Suva Reka on the 26th of

14 March, the same day as the attack in Mala Krusa, forces of the FRY and

15 Serbia surrounded the Berisha family compound in the Suva Reka town, and

16 they ordered the occupants to come out. At that time six of the men were

17 killed on the spot. The remaining family members were forced down the

18 street into a coffee shop. Once inside, they were fired upon by the Serb

19 forces. Several women and children. Explosives were then thrown into the

20 shop where the victims were, and we have just a short video showing you

21 the shop where this incident occurred.

22 [Videotape played]

23 MR. HANNIS: This is the coffee shop where the Berisha family

24 members were taken to and shot, and all -- at least 44 persons were

25 killed, including 15 women and 15 children. Bodies of the victims were

1 then thrown into the rear of a truck, which drove off toward Prizren.

2 Amazingly, three survivors of this horrific attack, two women and an

3 8-year-old boy, pretending to be dead and having been thrown into the

4 truck with the others, managed to crawl out and escape from among that

5 truckload of the dead. And you'll hear testimony from one of those women.

6 You will also hear about where some of those dead victims ended

7 up. Remains of the Berisha family members killed on that day were found

8 in two different locations: Some at a firing range in Prizren

9 municipality, and others in clandestine mass grave site by the training

10 centre for the SAJ, the elite anti-terrorist unit of the Serbian MUP, one

11 of the special units we told you about before; at Batajnica, near Belgrade

12 in Serbia.

13 And here I want to pause for a moment and show you a graphic to

14 emphasise an important point that we believe the evidence will show.

15 You'll see the distance from Suva Reka to Batajnica is approximately equal

16 to the difference from The Hague to a point in Luxembourg, approximately

17 285 kilometres. How did those bodies get from Suva Reka to that hole in

18 the ground near Belgrade, some 285 kilometres away? And not just any old

19 piece of ground, but police property, an area with limited, restricted

20 access, the training centre for the special unit, the anti-terrorist SAJ.

21 And why? Why would dead Albanian civilians, women and children,

22 be taken away and hidden away like that? Who could have done that? Who

23 had the means and opportunity to do that? And what motive to go to such

24 logistical lengths during a state of war, the time when resources like men

25 and trucks and fuel must have been precious, given the ongoing NATO

1 bombing and combat with KLA. We suggest that this evidence shows the

2 intent of the accused that forces under their control should implement the

3 solution for the Kosovo problem along the lines suggested by Milosevic in

4 his remarks to Clark and Naumann in October 1998 during the negotiations.

5 We say it also reflects guilty knowledge on their part that these killings

6 were not part of a legitimate anti-terrorist campaign, but rather a

7 criminal enterprise to modify the ethnic balance in order to maintain Serb

8 control of Kosovo.

9 Next up I want to show you Izbica in Srbica municipality.

10 On the 28th of March, a couple of days later, in Srbica

11 municipality, forces of the FRY and Serbia had begun firing heavy weapons

12 on several villages in the area near the village of Izbica. As many as

13 4500 people fleeing from these attacks had gathered in a field near

14 Izbica. On the 28th of March, forces of the FRY and Serbia had surrounded

15 these displaced Kosovo Albanian civilians. They approached and demanded

16 money. The women and children were ordered to leave and go to Albania.

17 Two disabled elderly women seated in a trailer who were unable to walk,

18 Serb forces set fire to the trailer and burned those women alive.

19 The men were separated from the women and children and then the

20 men were divided into two groups. One group was taken towards the woods

21 and a stream, where they were then told to kneel down. And then the Serb

22 forces began shooting them. The second group was marched off in another

23 direction, made to line up, before they, too, were shot. Miraculously

24 there were survivors from both these mass shootings, and you will hear

25 live from at least one of them with evidence from others proposed to be

1 submitted in written form or otherwise they'll attend here for

2 cross-examination at least. Over 100 men were killed on that day in

3 Izbica, and you will hear live, as I said, from one of the survivors of

4 the massacre. Local villagers then gathered up the dead and buried them.

5 A local doctor named Liri Loshi filmed the bodies for identification, and

6 you'll see that in full later in the evidence, and you'll hear from Liri

7 Loshi.

8 As I said, the victims were then buried in Izbica by the

9 villagers, but they didn't stay buried for long. At any rate, by sometime

10 between mid-May and the 3rd of June, 1999, the Izbica killing victims were

11 dug up out of what had presumably been thought to be their final resting

12 place. And we'd like to show you some aerial photos now to explain this.

13 Two images on your screen. On the left half is Izbica, Kosovo, on

14 the 9th of March, 1999. In the upper right centre, you'll see an area

15 marked as "no graves." And in the right middle something marked as "no

16 vehicles and debris." On the right half of your screen is an image

17 showing the same area on the 15th of April, and in that area there are now

18 graves. And in the lower right you'll see vehicles and debris being

19 described as appearing in that image. From the testimony of the witnesses

20 you will understand where the vehicles and the debris are mentioned is

21 where the 4500 who had previously fled from surrounding villages were

22 camping and staying when this happened.

23 If we could go to the next image. This is from the 3rd of June,

24 1999, from the same area. On the insert you'll see something says "see

25 following graphic." This is area where the graves were on the previous

1 image. We'll go to a close-up. On the left half of this image is the

2 area where the graves were on the 15th of May, 1999; and on the right,

3 that same area on the 3rd of June. With a big dark area indicating

4 disturbed earth. No neat rows of individual --

5 JUDGE CHOWHAN: I'm sorry, I have a little question for

6 clarification.

7 MR. HANNIS: Yeah.

8 JUDGE CHOWHAN: Sorry for interruption.

9 MR. HANNIS: No problem.

10 JUDGE CHOWHAN: Please, you said the graves were later dug out.

11 Is it only what you want to say or the bodies were --

12 MR. HANNIS: I have some more to say on that, Your Honour.

13 JUDGE CHOWHAN: Not now?

14 MR. HANNIS: Yes, in just a moment.

15 JUDGE CHOWHAN: Because it leaves a bit of a vacuum. After the

16 two words --

17 MR. HANNIS: I hope I can clear it up in just a moment.

18 JUDGE CHOWHAN: That's right. Thank you.

19 MR. HANNIS: You'll see now on June 3rd it appears that the earth

20 has been disturbed.

21 On the 27th of June, 1999, a French forensic team went to this

22 site that you see depicted. Although they found no bodies at the time,

23 they did find evidence of human remains being once been buried there.

24 They found certain artefacts, pieces of clothing, I think some documents,

25 other things indicating that humans had been buried there. From the

1 testimony of witnesses and the evidence in the video, you will see that

2 they were buried as shown in the left half of that image.

3 Later investigations show that on approximately the 1st or 2nd of

4 June, 1999, forces of the FRY and Serbia had returned to Izbica and

5 removed those bodies from their graves. Serb authorities eventually, in

6 2001 or 2002, admitted having removed the bodies. To this date, all

7 120-plus bodies that were there have not been found. About 59 have been

8 discovered, 20 of them were in a clandestine mass grave site near

9 Petrovo Selo, a site called Petrovo Selo 2, which is located in Serbia

10 near -- in eastern Serbia near the border with Romania. Others have been

11 found in various locations in the Kosovska Mitrovica municipality in

12 Kosovo.

13 Once again, you see evidence of an attempt to cover up the crime,

14 suggesting a guilty conscience on the part of the Serb authorities. As in

15 Suva Reka, the Serbs once again had to engage in grave-robbing to hide the

16 evidence. We suggest the only logical inference is that the individuals

17 under authority of our accused dug up those victims and transported them

18 more than 250 kilometres to end up in Petrovo Selo 2.

19 One last killing site I want to talk about before talking about

20 the deportations. We'll talk about Meja, a village in the Djakovica

21 municipality. This was later, on the 27th of April, 1999, in Djakovica

22 municipality, forces of the FRY and Serbia began a large-scale operation

23 an area called the Erenik and Trava River Valleys.

24 On your screen you have a map now. You can see Djakovica

25 identified by a red circle and arrows pointing to the river valley areas

1 for the Erenik River and the Trava River. You also see the Kosovo-Albania

2 border in a pink or purple line on the lower left side. This operation in

3 the river valley areas ended up with Kosovo Albanians fleeing and several

4 convoys being formed.

5 In the vicinity of Meja, forces of the FRY and Serbia detained and

6 separated hundreds of Kosovo Albanian men in those convoys. Several were

7 summarily executed, and another 300 were never seen alive again. Two

8 years later, forensic teams investigating a mass grave site inside the

9 grounds of the barracks of the SAJ, the anti-terrorist police unit,

10 discovered some 344 bodies. DNA identification has determined that 289 of

11 those bodies were the remains of men removed by forces of the FRY and

12 Serbia from the convoys, attempting to flee Meja on the 27th of April,

13 1999. And again we put up a map to show you the relative distance from

14 Meja to Batajnica, being approximate to the distance from The Hague to

15 Luxembourg. Again of these 300 bodies, approximately 289 removed 280

16 kilometres to get from Meja to that hole in the ground outside Belgrade.

17 As I said before, a significant logistical challenge, requiring important

18 resources while engaged in an armed conflict with NATO and KLA.

19 Now, before I go on to talk about the deportations, I want to

20 direct your attention to another matter worth noting in regard to the

21 killings. In our indictment we have attached schedules listing the names

22 of those known killed at the killing sites. Based on my rough

23 mathematical calculations, the number of named identified individuals in

24 those schedules totals about 924. Of those 924, 53 of them were children

25 under the age of 16; 72 were females; 104 were over the age of 65 years.

1 We suggest that these are not what you might expect to see from a

2 legitimate campaign against the armed terrorists of the KLA, but rather

3 reflect killings of civilians in a programme to remove them from Kosovo.

4 Now I'd like to talk about deportations, and we'll put up a map

5 showing our deportation sites referred to in the indictment.

6 The evidence will show a pattern of conduct by the forces of FRY

7 and Serbia which supports the inference that this was a widespread and

8 systematic attack directed at the civilian Kosovo Albanian population,

9 that it was well planned and coordinated from above, and that its

10 objective - or at least one of its primary objectives - was to modify the

11 ethnic balance in Kosovo in order to maintain Serb control over the

12 province. Generally speaking, in the eastern half of Kosovo the forces of

13 FRY and Serbia drove and directed the Kosovo Albanians to the south

14 towards Macedonia. In the western half of the province, the joint VJ and

15 MUP operations tended to drive and direct the civilians towards Albania.

16 I want to talk about some of these individual deportation sites.

17 On the map now you'll see the five of the primary border-crossing points,

18 two for Macedonia and three for Albania marked in purple. These are the

19 primary border-crossing points through which the victims of this

20 operations were funneled out of Kosovo.

21 First of all, I want to talk about Pec. You'll see it marked by

22 the green dot there on the left side. In the city of Pec, Pec

23 municipality, forces of the FRY and Serbia went from house to house

24 forcing Kosovo Albanians to leave their homes. In the course of this

25 process, some civilians were shot and killed and houses were set on fire.

1 Serb soldiers and police directed the civilians to the town centre where

2 those without their own vehicles were forced to get on buses and in

3 trucks. They were then driven to Prizren and towards the border with

4 Albania. The Kosovo Albanians were then forced off the buses and trucks

5 and directed to walk the last 15 kilometres to Albania. And you'll see a

6 little graphic demonstrating the areas to which they went. A few from Pec

7 actually went into Montenegro, but you'll hear evidence that the majority

8 went south to Djakovica and then out to Albania.

9 Once they arrived at the border and before leaving Kosovo, they

10 were ordered to turn over those identity papers to the forces of the FRY

11 and Serbia.

12 Next I would like to talk about Prizren municipality, located in

13 the south and identified by the red dot on your map. Between the 25th and

14 the 28th of March, in the very first week after the NATO bombing began,

15 forces of the FRY and Serbia began attacking villages in this

16 municipality, first in the village of Pirane, and then several others,

17 forcing the Kosovo Albanians from their homes and sending them to the

18 Albanian border. You'll see an image of this deportation.

19 In the town of Prizren itself, beginning on the 28th of March,

20 1999, forces of the FRY and Serbia again went from house to house,

21 ordering the Kosovo Albanians to leave. They formed convoys using all

22 available vehicles, with many having to make the 15-kilometre journey to

23 the border on foot. Along the way, some of the Kosovo Albanian men were

24 beaten or killed by forces of the FRY and Serbia. In some cases, women

25 were separated from the convoy and raped. Once at the border, again the

1 Kosovo Albanians had their personal identity documents taken away from

2 them by the Serbs before being allowed or being directed to cross into

3 Albania.

4 Pristina, the capital, we'll put a map up of that. The capital

5 city itself wasn't immune to Serb efforts to remove Kosovo Albanian

6 civilians. Beginning on the 24th of March and for several weeks

7 thereafter, up until late May, forces of the FRY and Serbia went from

8 house to house and forced the Kosovo Albanians to leave. Many of them

9 left immediately to the train station, while others went to other parts of

10 the city, but for the most part those doing so only temporarily delayed

11 their ultimate removal from the town.

12 During the course of these expulsions, a number of the civilians

13 were killed. Several women were sexually assaulted by the forces of FRY

14 and Serbia. Once removed from their homes, they were directed by the Serb

15 police to the train station, where they were packed on to trains or buses.

16 Then they were taken south to a point near the border - Djeneral Jankovic

17 is the name of the town in Serbian, Hani i Elezit in Albanian - where they

18 had to get off the train and then walk the last part or their exodus along

19 the railroad tracks across the border into Macedonia.

20 On their way from Pristina to Macedonia, many had their identity

21 papers taken away from them by forces of the FRY and Serbia. Most of the

22 ethnic Albanian villagers surrounding Pristina town were also subjected to

23 the same treatment by the forces of FRY and Serbia. They were beaten and

24 robbed, some were killed, and then forced from their homes, which were

25 then looted and burned.

1 Many of them also eventually were put on trains heading to

2 Macedonia, and they too had to walk the last stage across the border and

3 out of Kosovo. Some others from Pristina took an alternate route out of

4 Kosovo and ordered to get to Albania, and you'll see that reflected on the

5 screen before you.

6 Finally, the last deportation municipality I want to speak about

7 is Urosevac on the map before you indicated by the pink circle in the

8 south-eastern part of Kosovo. Beginning with the onset of the NATO

9 bombing on the 24th of March, the forces of the FRY and Serbia began

10 shelling and attacking villages in Urosevac municipality in the usual

11 pattern I've described before. The villagers were ordered to leave, their

12 abandoned houses were burned by the Serb forces.

13 Most of the villagers ended up in the town of Urosevac itself,

14 where they boarded trains heading for the border-crossing point near

15 Djeneral Jankovic, and like the others mentioned above from Pristina,

16 walking the last part along the railway line. At the border the forces of

17 FRY and Serbia took their identity documents before they crossed into

18 Macedonia.

19 The indictment, in addition to the killings and deportations, also

20 charges these accused with persecutions, including rapes and the

21 destruction of property. I want to say a few words about that.

22 You will hear testimony from a number of victims about the sexual

23 assaults committed upon them by forces of the FRY and Serbia during these

24 operations to remove the Kosovo Albanian population. I won't go into

25 specific or graphic detail about these horrific crimes now, but only

1 mention that this evidence will be led during our case and that for

2 several of these witnesses we have sought and been granted protective

3 measures. We have also proposed an expert to testify on certain aspects

4 of these crimes and the impact on the victims. We say these rapes were

5 part of the widespread and systematic attack on the civilian population

6 and an integral part of the persecutions and the objective of the JCE.

7 They occurred throughout the province as Kosovo Albanians were terrorised

8 and expelled from Kosovo.

9 Destruction of cultural sites and religious buildings. Another

10 type of crime under the persecutions count includes damage to religious

11 and cultural property. A number of witnesses, including the expert,

12 Andras Reidlmayer, will testify about this. And we've got some photos of

13 that damage to show you. First is a mosque in Bela Crkva, which we've

14 talked about; next is another one in Brestovac; Velika Krusa, also in

15 Orahovac; Djakovica; also from Djakovica; Vucitrn; another one in Vucitrn;

16 and finally another view of a -- one in Vucitrn; and in Celina; and Cirez;

17 and Landovica.

18 This is evidence, we say, not only of the crime itself of the

19 destruction of those buildings, but also as reflecting the intent and the

20 plan of the perpetrators, that is that the Kosovo Albanians would be

21 driven out and without not be coming back. The evidence regarding this

22 damage also shows and refutes the suggestion that it was done by NATO

23 bombing. The evidence will show that these mosques were not damaged from

24 the air, but rather from the ground by forces of the FRY and Serbia.

25 Mosques were burned and damaged throughout Kosovo, as you've seen.

1 Other sites destroyed included the old bazaar and historic old

2 quarter in Djakovica town, the Hadrum mosque, and the Islamic library.

3 The destruction of cultural and religious sites, we say, was an integral

4 part of this campaign of persecutions.

5 Now I'd like to talk briefly about failure to punish or lack of

6 punishment under Article 7(3) of the Statute. The evidence will further

7 show that none of these crimes charged in the indictment were properly

8 investigated, if investigated at all, nor were the perpetrators punished.

9 This general impunity for serious violations of humanitarian law against

10 ethnic Albanians in Kosovo didn't exist because of any problems of the

11 courts not functioning during the conflict; the courts were functioning.

12 Both civilian and military courts worked regularly during the conflict and

13 thereafter. Military courts were attached to the Pristina Corps command,

14 the Pristina Military District, and the 3rd Army command. Nevertheless,

15 we say, impunity prevailed for a certain type of crime, namely the crimes

16 we're dealing with in this trial, crimes committed by Serbs against Kosovo

17 Albanians. In contrast, VJ members were frequently and regularly

18 investigated and punished in proceedings before military courts for

19 certain offences, mainly disciplinary matters, things in the nature of

20 desertion, absence without leave, sleeping on duty, insubordination, but

21 they were never or almost never prosecuted for crimes of deportation,

22 murder, rape, robbery, or destruction and damage committed against ethnic

23 Kosovo Albanians and their property.

24 To illustrate this point, I would like to show you a graphic. As

25 you can see from this chart, more than 90 per cent -- well, let me tell

1 you. This describes the types of criminal offences through June 1999.

2 This was from an exhibit produced by a Defence witness in the Milosevic

3 case. You'll see on the lower left other crimes were 3 per cent, crimes

4 against life and limb were 6 per cent, all the other crimes, 90 per cent,

5 or the failure to respond to call-up, desertion, or insubordination, or

6 other crimes against the VJ.

7 These disciplinary offences, these statistics are based on numbers

8 contained in a Supreme Command Staff document that will come into

9 evidence, we hope, later in the trial. As for these crimes designated

10 as "others," most of those were crimes against property. Most were for

11 robbery or aggravated robbery or theft. 20 per cent were for vehicle

12 thefts.

13 Let me show you a second chart. This one is based on a report

14 of --

15 JUDGE CHOWHAN: I'll again beg your pardon.

16 MR. HANNIS: Yes, sir.

17 JUDGE BONOMY: Were the properties occupied, those vacated?

18 MR. HANNIS: Your Honour, I can't tell you that at this point.

19 That's something that may appear in the report, but I don't have that

20 answer yet.

21 JUDGE CHOWHAN: I'm sorry.

22 MR. HANNIS: This second report, this charge is based on a report

23 of the military court in Nis to the supreme military court in Belgrade.

24 It was reporting on criminal cases heard by the military courts during the

25 Kosovo conflict from 24 March 1999 until 10 June 1999. You can see how

1 low the percentage of cases concerning war crimes against the civilian

2 population is: 1 per cent. On the lower right you'll see the red pie

3 slice. And rape cases are listed as 3 per cent. These statistics clearly

4 suggest, and we expect to prove with other evidence during the trial, that

5 the widespread persecution, deportation, murders, mistreatments, rape, and

6 destruction of property against ethnic Kosovo Albanians was not a matter

7 of serious concern for Serb authorities. There was no meaningful

8 substantive effort to fully investigate such matters, nor to see that VJ

9 and/or MUP perpetrators of such crimes were punished. The occasional rare

10 investigations of serious incidents which did take place were superficial,

11 and the perpetrators remained unknown, unlocated, uncharged, and/or

12 unpunished. The evidence we'll lead on the investigation into the

13 massacre at Izbica as an example of this practice of a token effort, just

14 going through a few motions in effect in order to be able to say to the

15 outside world: Look, we -- see, we tried. We did do something.

16 The impunity for the crimes concerned by this indictment went hand

17 in hand, we say, with the attempts to conceal those crimes. Milosevic,

18 Milutinovic, Sainovic, and others prevented the Prosecutor and

19 investigators of the Tribunal from carrying out investigations in Racak

20 after the killings in January 1999. Even before any domestic

21 investigations were conducted there, Milosevic declared publicly that

22 members of the forces of the FRY and Serbia had not committed any crimes.

23 At different crime scenes described before, the perpetrators attempted to

24 dispose of the corpus delicti, the human remains and bodies of the

25 murdered victims, in some cases by dynamiting the house in which the

1 massacre had taken place, or by hiding the corpses in wells. In other

2 cases you've seen the bodies were removed long distances to be buried in

3 Serbia. We will present evidence about this with regard to the killings

4 in Mala Krusa, Cirez, and Kacanik, among others.

5 The attempt to conceal crimes by disposing the bodies wasn't

6 limited to just these few sites. As we already talked about with regard

7 to Suva Reka, where hundreds of bodies were transferred vast distances

8 across Kosovo and into Serbia and ended up in secret mass graves, the

9 extent of this operation, we say, the organisation and the involvement of

10 Serb officials therein, is best shown by the fact that one of the largest

11 mass graves with more than 300 bodies -- several hundred bodies of ethnic

12 Kosovo Albanians was at the firing range of the spatial anti-terrorist

13 unit, the SAJ, in Batajnica, close to Belgrade. We say senior Serb

14 officials personally administrated this operation.

15 Finally the evidence will show that in many cases crimes committed

16 against ethnic Kosovo Albanians were not only tolerated but were ordered

17 to be committed by superior officers of the direct perpetrators. In the

18 course of this trial, you will hear live testimony from witnesses who

19 experienced this themselves.

20 We say that this evidence will also prove responsibility of the

21 accused under Article 7(3) for superior responsibility. We say that all

22 of the accused had effective control over the perpetrators, that is they

23 had the material ability to prevent or punish the commission of

24 offensives. They had the material ability to enforce discipline among the

25 troops deployed to Kosovo and to effect the prosecution and punishment of

1 perpetrators by virtue of their respective positions, Milutinovic as the

2 president of Serbia; Sainovic as the Deputy Prime Minister and the head of

3 the Joint Command; Ojdanic as the Chief of Staff of the VJ; Pavkovic as

4 the commander of the 3rd Army; and Lazarevic as the head or the commander

5 of the Pristina Corps; and Sreten Lukic as the head of the MUP staff. By

6 virtue of both their de jure and de facto powers, it was within their

7 power and their authority to take measures that would have prevented

8 crimes or punished the perpetrators appropriately.

9 The evidence will also show that all of the accused knew or had

10 reason to know that serious violations of humanitarian law, as described

11 earlier, were committed by the VJ and MUP forces or forces subordinated to

12 them or incorporated into them and working and operating with them in

13 Kosovo. They had general information in their possession which would put

14 them on notice. And they also knew about the criminal activity of and the

15 criminal propensity of certain elements within their troops. Despite

16 their superior positions and their material ability to take necessary

17 measures and their knowledge, they failed to prevent and they failed to

18 punish the crimes. That's why we say they are responsible under

19 Article 7(3).

20 Now, before answering the last of my journalistic questions, the

21 why question, and concluding, I want to make a few remarks about some

22 other general things that will pertain during the trial.

23 We will have a number of insider witnesses testify during this

24 case, a fair number of so-called insiders. Generally these will be Serbs

25 who were members of the VJ or the MUP. They will come, I suggest, with

1 varying degrees of reluctance to testify and you will see their

2 discomfort, which may occur for many reasons. One reason is that many of

3 their fellow countrymen hold the view that any Serb who testifies for the

4 OTP, for the Prosecutor, in a case against Serb accused, such a person is

5 a traitor, to his country and to his fellow Serbs. Others may be

6 concerned about some of their own conduct during the conflict. Not all

7 are going to come before you, I suggest, with clean hands. And they may

8 unreasonably deny or downplay their own roles in the events. Some will

9 be, I suggest, downright hostile to the Prosecution. It would be nice for

10 the Prosecution if all our witnesses were as pure as new-fallen snow, but

11 that's not how it works in real life. I would like to have Mother Theresa

12 and a couple of nuns and some boy scouts to be all of our witnesses, but

13 those aren't the people who are going to be in a position who are going to

14 have inside knowledge of a joint criminal enterprise in a war crimes case.

15 So I want to alert you to that, and we are confident that Your Honours

16 will be able to judge these witnesses, and in cases where it's necessary,

17 to be able to separate the wheat from the chaff and know which parts are

18 wholly true and those that might be something less.

19 And a related matter regarding evidence, you'll see a number of

20 documents in this case, I'm sorry to say, or maybe I should be glad to

21 say, we don't have a complete collection of all the documents produced and

22 created by the Serbian authorities during the conflict, we don't have all

23 the army documents or all of the MUP documents. You've heard from some of

24 the pre-trial proceedings, Mr. President, that even the Defence has had

25 some difficulty in obtaining documents from the MUP. It's an ongoing

1 process, and there can be all kinds of reasons for the delays which we may

2 discuss during the presentation of the case.

3 It's also interesting to note that General Pavkovic was involved

4 in the creation of the VJ Commission on Cooperation with the ICTY. In

5 some ways that seems like having the fox guard the hen-house, but that's

6 something that we have to deal with as a fact of life in this case.

7 Thirdly I want to mention the crime base victims. We had

8 initially proposed several of those witnesses as 92 bis witnesses to

9 come -- to submit their evidence through the written statements and not

10 have them appear, but based on the pre-trial rulings they will be

11 appearing before you. Since they will be coming, it's our proposal to

12 lead some of their evidence on direct because I think, as we discussed

13 last week, Your Honours, we have a concern about having these witnesses

14 come in and have to directly be submitted to cross-examination without

15 having a brief chance to tell in their own words about their experience.

16 And finally I think I also foreshadowed this possibility, that in

17 addition to the team you have before you today, Mr. Stamp, my co-equal,

18 Senior Trial Attorney on this case, Christina Moeller, Mr. Mathias

19 Marcussen, and Patricia Fikirini, Trial Attorneys, we have some other

20 lawyers who will be make appearances in this case during the course of the

21 trial.

22 Now, that takes me to my last journalistic question posed at the

23 beginning, the why question. Why did these crimes happen? As I said,

24 motive is not an element that we have to prove, but I think it will help

25 you understand the evidence and place it in context.

1 We say the short and simple answer is that Kosovo was central to

2 the political survival of Milosevic and his inner circle. Slobodan

3 Milosevic and his fellow participants in this JCE, in this joint criminal

4 enterprise, we say, were sick and tired of the Kosovo problem. Over the

5 preceding eight years, they had seen their Yugoslavia shrink from six

6 republics to two, and they were determined not to yield any more

7 territory, and certainly not Kosovo.

8 As Milosevic told NATO Generals Wesley Clark and Klaus Naumann,

9 Kosovo was worth more than his own head. For years they had tried various

10 measures but without success. The Serbs were losing the demographic game

11 in Kosovo, and it was only going to get worse. You'll see the varying

12 percentages of Albanians as a total -- as a percentage of the total

13 population was going up and that of the Serbs was going down.

14 Efforts to deal with the problem through legislation and

15 increasingly discriminatory measures didn't work either. Use of force by

16 the police and then the military didn't work. Actually, those efforts

17 only made the situation worse. More and more Kosovo Albanians abandoned

18 the notion of non-violent civil resistance, as led by Ibrahim Rugova and

19 the LDK, and they turned to the KLA and a programme of violent resistance.

20 By the time the international community and NATO decided to act,

21 the decision, we say, had been made and the forces put into place to

22 finally make a significant change in the ethnic balance in Kosovo. The

23 NATO campaign gave the JCE members an opportunity to do under the cover of

24 a state of war what they dared not do in peacetime, and that was to drive

25 hundreds of thousands of Kosovo Albanians out of the province and out of

1 the country.

2 In conclusion, Your Honours, and I'm ending much earlier than I

3 anticipated, hundreds of thousands of Kosovo Albanians were forced to flee

4 for their lives, to leave their homes on little or no notice at all, they

5 were driven out by the shelling by the VJ and at gunpoint by the police,

6 the special units and other forces of the FRY and Serbia. Thousands were

7 killed in the process, uncounted numbers were robbed. Men were beaten,

8 women raped. Their homes and businesses they had to leave behind were

9 looted and burned to the ground. Their mosques and cultural and religious

10 buildings were destroyed. We say this was not just collateral damage from

11 a conflict between the KLA and the forces of the FRY and Serbia, nor was

12 it caused by the NATO bombings. It wasn't an accident, and it wasn't a

13 series of coincidences, nor was it simply the sad and difficult

14 consequences of a legitimate anti-terrorist campaign. This was a plan,

15 directed from above, coordinated by these other members of the joint

16 criminal enterprise, using the forces under their command and control to

17 bring about that objective of the JCE, that one I repeated many times

18 before, modifying the ethnic balance in Kosovo in order to maintain

19 Serbian control of the province.

20 This is not a case where we have confessions by the accused nor a

21 smoking-gun document setting forth a plan calling for a final solution for

22 the Kosovo problem, but all the evidence considered together in a common

23 sense fashion can only lead to the inference and the solid conclusion that

24 these crimes were part of a common plan or purpose for which these accused

25 and the other named members of the joint criminal enterprise, came

1 together and made their respective contributions with the intention that

2 the objective be achieved, intending or knowing that the crimes would be

3 committed to achieve that goal.

4 There are a few key factors I want to reiterate and ask you to

5 keep in mind during the presentation of evidence in this case. Number one

6 is the nature of the armed campaign beginning on the 24th of March, 1999,

7 the coordinated, widespread, systematic nature of the attacks all across

8 the province beginning on that day; number 2, the number of children,

9 women, and elderly victims, obviously not KLA fighters or terrorists;

10 number 3, the efforts to conceal the crimes, first by denying their

11 occurrence, and then by taking great logistical pains and using precious

12 resources to remove the evidence, such as by digging up the bodies of

13 victims and transporting them hundreds of kilometres to hide them in mass

14 grave sites in Serbia; number 4, the confiscation and destruction of

15 identity documents and vehicle licence plates; number 5, statements of

16 intention by Milosevic and others about the Kosovo Albanians and finding a

17 solution for the problem in the spring of 1999, a solution like the one

18 that Milosevic said was done in 1945 and 1946, getting them together and

19 shooting them all; number 6, the removal of nay-sayers from the inner

20 circles of the leadership and replacement of those with others that were

21 more agreeable, more willing, to go along with what was planned; number 7,

22 the importance of Kosovo to the political rise and survival of Slobodan

23 Milosevic and his supporters.

24 At the end of our case when the evidence is all in, we expect it

25 will show and we will ask you to find all six of these accused guilty as

1 charged.

2 I thank you for the opportunity to have spoken to you this

3 morning, and I and my colleagues look forward to presenting our case to

4 you.

5 Thank you.

6 JUDGE BONOMY: Thank you, Mr. Hannis.

7 [Trial Chamber confers]

8 JUDGE BONOMY: Mr. Visnjic, we're minded to take the break early

9 and resume at quarter to 2.00 so that Mr. Ojdanic can give his statement

10 uninterrupted, since you envisage it being concluded well within the

11 period of one session. Does that meet with your approval or would you

12 rather he started now?

13 MR. VISNJIC: Yes, Your Honour, I agree. Thank you very much.

14 JUDGE BONOMY: Very well.

15 What we'll do now is adjourn until 1.45. We'll resume at 1.45.

16 --- Luncheon recess taken at 12.09 p.m.

17 --- On resuming at 1.44 p.m.

18 JUDGE BONOMY: Well, Mr. Ojdanic, you may now make the statement

19 your counsel indicated that you would be making at this point. Just stand

20 up and let us hear what you have to say.

21 THE ACCUSED OJDANIC: [Interpretation] Your Honours, standing in

22 front of you as a soldier, a four-star general, my honourable professional

23 career spans over 42 years. Back in 1964, I took an oath to serve my

24 people and my country. I solemnly undertook to faithfully serve my

25 people, to defend my home country, and to always be prepared to fight for

1 the freedom and honour of my country, without sparing my own life, if need

2 be.

3 We all carry a debt to our home country, whereas our home country

4 owes no one anything. I taught everybody the same thing, my officers in

5 my commands at times when I was the leader of tactical operations and

6 strategic commands. I taught all the future officers of our army the same

7 thing at the time when I served as a lecturer and head at the military

8 academy of the land forces of the JNA. The defence of the home country is

9 our supreme value. It taught me the following, and this is what I tried

10 to each everybody else: There is no shying away from danger or fear.

11 Thank you very much for allowing me to take the floor at the very

12 beginning of this trial. I've been waiting for seven years to remove this

13 feeling of shame. I felt the need to address you at the beginning of this

14 trial in order to introduce myself, not just as a general but also as a

15 human being.

16 I was born on the 1st of June, 1941, in the village of Ravni, near

17 Uzice in Serbia, in a country which at the time was called the Kingdom of

18 Yugoslavia. I was born a mere 56 days after the beginning of the fascist

19 Germany aggression against Serbia. They were joined in this

20 aggression by Hungary and Italy. I was 6 months old when the glorious

21 Uzice republic was established which was the only free territory at the

22 very heart of occupied Europe. I was only 4 years old when the country

23 was liberated from German occupation. As a child, I dreamt of one day

24 becoming a soldier. Both my grandfathers were in the liberating armies in

25 the First World War. My father was an anti-fascist. He took part in the

1 struggle against fascism, chauvinism and anti-Semitism, in which Serbia

2 proudly took part, along with Great Britain, France, the United States of

3 America, and the Soviet Union. I was quite familiar with the involvement

4 of my countrymen in the wars of liberation against Turkey, Austria, and

5 Hungary. My soldierly orientation was based on my knowledge of the famous

6 Uzice army and the 4th Regiment of Stefan Nemanja from the famous Drina

7 Division.

8 As a child, I did not stop at the local level. I read books on

9 our national history. I admired the recognition awarded to the Serbian

10 army and its commanders by the allied powers and the enemy alike. Liote

11 [phoen], the French marshal, wrote: "By their courage, by their

12 resistance, and by their spirit of sacrifice during the war between 1914

13 and 1918, the Serbian army, under the commander of Prince Regent

14 Aleksandar, provided a shining example of soldierly virtue."

15 Robert Lessin [phoen], the American foreign minister, said: "When

16 history is written, the most illustrious chapter of that history will be

17 named Serbia." The Serbian army created a miracle of fortitude while the

18 Serbian people suffered like no one else. Such perseverance and such

19 sacrifice cannot go unobserved. Indeed, they must be rewarded.

20 There were countless examples of this kind. It filled my soul

21 with a great desire to become a proud Serbian soldier, Serbian soldier who

22 has never covered himself in shame throughout the entire history. At the

23 time, a JNA officer was the most highly respected profession back where I

24 come from. It is, therefore, no surprise that at the age of 15 I ceased

25 being a child and became a soldier. I served for four years in schools

1 and for a further ten years in military academies. I completed the school

2 for junior officers, the military academy, the command staff academy, the

3 operations school, which was also called the All People's Defence school,

4 and I completed a degree in strategy, after which I defended my thesis and

5 earned myself the right to be called a master of military sciences. I

6 gave up the defence of my PhD thesis under strange circumstances. I was

7 an excellent student all the time. I had five fast-track promotions. I

8 was decorated eight times, seven times by the JNA, and once by the Russian

9 army.

10 I was taught that Yugoslavia was a country that must ensure equal

11 rights for all its peoples, a life worth living, and a happy future. I

12 believed in this as the supreme value, which guaranteed that our peoples

13 would never again wage wars among themselves.

14 I was a soldier who was prepared to do everything in my power to

15 strengthen the position of the Socialist Federative Republic of

16 Yugoslavia. I not only believed in brotherhood and unity. I did

17 everything within my power to strengthen it day by day. My duties allowed

18 me to take an active part in the struggle for the equal rights of all the

19 different nations that made up Yugoslavia. My best friends among the

20 officers were and remain members of other ethnic groups than myself. I

21 spent many years in the military academy of the JNA where I worked as a

22 commander, as a teacher, as head of one of the biggest groups of cadets,

23 and as head of one particular department. I trained future officers from

24 all the different ethnic groups inhabiting Yugoslavia.

25 As a JNA officer, I came to Kosovo and Metohija first as a

1 lieutenant-colonel and later on -- first as a second lieutenant and then

2 as a lieutenant-colonel. I served in Djakovica between 1964 and 1965 and

3 in the Prizren garrison between 1983 and 1988. I emphasise that I was

4 there with my family. I also served in the Pristina garrison between 1988

5 and 1990. I personally saw how the relations between the Serbs and the

6 Albanians were deteriorating. I never, for a moment, believed that I

7 should take sides. I did everything to remove the cause or whatever it

8 was that was bringing about this deterioration in inter-ethnic relations.

9 Common people, both Serbs and Albanians, still respected the JNA at the

10 time. I personally saw what this respect meant among the Albanians in as

11 far as it applied to my own brigade in Prizren. Elements from our brigade

12 built a road through an Albanian village. The way they treated the

13 soldiers was more than just friendly. They did not allow the soldiers to

14 sleep in tents, welcoming them instead in their own homes, which is

15 probably a unique example of hospitality. I felt happy and I felt proud

16 of this. I believed that this stood for growing confidence in the

17 country's institutions. I had a mild optimism in me when I thought about

18 the future and the co-existence of the different ethnic groups in Kosovo.

19 After Kosovo and Metohija, my service brought me back to the

20 General Staff of the JNA, where I served for a while as the chief

21 operative of the land forces and as deputy head of the administration for

22 training and education of the armed forces of the Socialist Federative

23 Army of the Republic of Yugoslavia back in 1990 and 1991. Late in 1991, I

24 was the standing commander of the 37th Corps. In 1992 and 1993, I was the

25 commander of the Uzice Corps. I continued to serve in the Belgrade

1 garrison as the army's Chief of Staff. Between 1993 and 1994, and between

2 1994 and 1996, I was commander of the 1st Army, the greatest strategic

3 unit or group in the entire Yugoslav army.

4 On the 1st of July, 1996, I was appointed deputy Chief of Staff of

5 the Yugoslav army and I remained in that position until the 27th of

6 November, 1998. At this time, which was the hardest of times, I was then

7 appointed the Chief of Staff of the Yugoslav army and remained in this

8 position for a mere 14 months. It was between the 15th of -- the 27th of

9 November, 1998 until the 15th of February, 2000. Between February 2000

10 and the time I submitted a request to retire, I was the federal minister

11 of defence. I left active service as a military officer on the 31st of

12 March, 2001.

13 While talking about my career and where it took me, it is not

14 exaggerated to say that I am one of the few officers who did not skip a

15 single command level in their entire career, starting with squad level and

16 then working my way all the way up to the top of the army and the General

17 Staff.

18 It's very difficult to find the right words in this brief address

19 to express what I feel about the whole thing, what I feel about everything

20 that I am being charged with here, as well as the rest of us, by this

21 indictment. Anything that I may say now, Your Honours, to you or to all

22 those watching or listening I say with a clear and peaceful conscience. I

23 can look everyone in the eye without, for a second, flinching, even

24 bearing in mind the substance of the opening statement of the OTP and in

25 fact despite that opening statement. This has a calming effect on me,

1 this knowledge that I can face anyone, although for the last seven years I

2 have been toiling under those unjustified charges, charges that could only

3 be brought against a human being with no morality, honour, conscience, or

4 human dignity. These charges can never be brought against a man with such

5 an honourable military career behind him.

6 I face you of my own free will. I decided to do so immediately

7 after the Law on Cooperation with The Hague Tribunal was adopted by the

8 Assembly of the Federal Republic of Yugoslavia. I believe that this was

9 the only venue for me to prove my innocence and to prove the truth, given

10 that I can't do this in my own country, which I had served to defend in an

11 honourable and soldierly way. The motto of my life is truth and nothing

12 but the truth, even should truth be harmful to me.

13 As a military officer throughout my career, I complied strictly

14 with all the laws and regulations. Is it possible to imagine at all that

15 I, as the Chief of the General Staff might err in performing my highest

16 constitutional duty? Article 63 of the constitution of the SFRY says, and

17 I quote: "The defence of the Federal Republic of Yugoslavia is the right

18 and duty of every citizen."

19 Article 133 of the constitution clearly defines the role and

20 duties of the Yugoslav army. I quote: "The Federal Republic of

21 Yugoslavia has an army, the duty of which it is to defend its sovereignty,

22 its territory, its independence, and its constitutional order."

23 These were also my tasks as Chief of Staff of the Supreme Command.

24 Who could defy these provisions of the constitution? Who would have the

25 right? In October 1998, the Supreme Council - and that was before I

1 became Chief of the General Staff - debated the situation in Kosovo and

2 Metohija and arrived at the following conclusion: The Federal Republic of

3 Yugoslavia would do everything in its power for the situation in Kosovo

4 and Metohija to be resolved in a peaceful way by police work and

5 diplomacy. Should it, however, fail in this, the Federal Republic of

6 Yugoslavia will be defended by all means at our disposal. This in itself

7 indicated the task of the Yugoslav army and the entire defence system of

8 the Federal Republic of Yugoslavia.

9 The army and my family taught me another rule that I hold sacred.

10 All men, regardless of their skin colour, their ethnicity, or their

11 religion, are equal and must be treated without prejudice or

12 discrimination. I stood by that principle throughout my whole life. It

13 never even crossed my mind to act in a discriminatory way to anyone at

14 all, and I certainly never did anything like that. And this applied to my

15 enemy in armed conflict, whoever this happened to be.

16 The greatest success in my military career occurred in a community

17 that was not populated by my fellow countrymen or they did not constitute

18 a majority. This was of all places in Kosovo and Metohija, more

19 specifically in Prizren. I was the brigade commander there, and the area

20 of responsibility of this brigade covered the whole of Kosovo and

21 Metohija. I was elected as the best commander of the joint tactical units

22 in the JNA and I was awarded the highest possible honour, the award that

23 we refer to as the 22nd December award.

24 Most of the duties in that brigade were performed by Albanian

25 officers, who greatly contributed to the combat-readiness of our brigade.

1 How on earth could I possibly have been selected as the best commander in

2 the entire JNA had I not enjoyed daily support from all my officers and

3 from a great many people from the local community which was predominantly

4 Albanian? If that is true - and trust me, it is - how could I be a great

5 believer in brotherhood and unity? How could I believe in equal rights

6 for all the different ethnic groups, including the Albanian ethnic group?

7 How could I as a man and soldier of the highest rank possibly change

8 overnight and decide to join some sort of joint criminal enterprise and

9 choose to be involved in the planning of the most heinous crimes, the

10 killing and expulsion of people from their own homes in their own country?

11 No, Your Honours. Something doesn't quite tally. Either it is a

12 lie that I was the best commander in an environment that was almost purely

13 Albanian, either it was a lie that I was loved and respected by that

14 community, or it is a lie that I aided, abetted, and instigated the most

15 heinous crime imaginable against those very people. I assure you, the

16 latter is a lie. I never did anything nor did I ever tolerate anything

17 that would even remotely resemble the allegations made in the indictment.

18 Quite the contrary, in fact. You will see countless orders that I gave,

19 countless warnings that I issued, which indicate precisely the opposite.

20 In these clashes in Kosovo and Metohija, it was very difficult to

21 distinguish the front line from the rear, war from politics, struggle from

22 ideology, civilian from soldier. I wrote down in my own hand and I spoke

23 in my own voice. I didn't use a spokesperson, a PR person, or a scribe.

24 Countless pages of orders and warnings to act humanely under these

25 difficult and inhumane circumstances that prevailed in a war, all with the

1 objective of avoiding unnecessary suffering to the civilians. And we know

2 that civilians are always the greatest and saddest casualty of any war.

3 Unfortunately, I was not entirely successful, but one only learned

4 about this later on, if that is even true. However, I remain convinced

5 that by my acts, by my word, and by my personal authority, I contributed

6 to keep this down, to keep the extent of the whole thing down. I also

7 remain convinced that none of my acts, written or spoken, were never used

8 by anyone as an instigation to commit or perpetrate possible crimes

9 against the Albanian population. I remain particularly convinced that at

10 no time in my very long and very successful military career did I do

11 anything that might qualify as a crime or any form of participation in a

12 crime. It therefore follows that I certainly didn't do that as the Chief

13 of Staff of the Supreme Command. I was a firm believer in international

14 law and in the UN Charter.

15 I hoped that the UN -- that NATO would never attack my country,

16 although everything was indicating the opposite, namely that there would

17 be an aggression. This optimism, then as of now, was founded on a belief

18 that there was no international problem that could be resolved by the use

19 of force, especially by the use of weapons. I sent a letter to General

20 Clark to express this belief. Unfortunately, General Clark did not share

21 my beliefs, and he was then the chief commander of NATO for Europe.

22 Your Honours, the year now is 2006. It's been seven years since

23 the events described in the indictment. One thing that I would like to

24 ask you, Your Honours, is to try to put yourself in my shoes and imagine

25 how these events unfolded between March and June 1999. Even in official

1 US documents, one comes across references to the Kosovo Liberation Army as

2 a terrorist organisation who were perpetually brutally attacking the

3 Serbian police and the Serbian army, as well as both Albanian and Serb

4 civilians. In peril with this struggle against terrorism, we tried to

5 resist the NATO aggression. The mightiest armies of the world joined in

6 attacking Yugoslavia. This operation was a violation of the provisions of

7 international law, and it was an operation that the Security Council never

8 sanctioned. I personally believe that regardless of what the OTP may or

9 may not say, it won't be possible to use this Kosovo tragedy, the tragedy

10 of all the people living there, to remove the horrible consequences of

11 daily bombings of Yugoslavia and the countless civilian victims that fell

12 in indiscriminate attacks against my own country, which peaked in Kosovo

13 and Metohija.

14 The partnership between NATO and the Kosovo Liberation Army is a

15 fact openly discussed today. The crimes committed at the time were never

16 subjected to the scrutiny of the OTP. If they had, I believe it would be

17 easier for us to arrive at the reasons which drove the Kosovo people to

18 leave their homes. Evidence will show that everything I did was against

19 the Kosovo Liberation Army, and then later after the aggression against my

20 country, against NATO, and the Kosovo Liberation Army as NATO's allies,

21 and not the Albanian -- the civilian population, as is claimed.

22 There is one thing that I am certain about, Your Honours. I am

23 not guilty under any of the counts of the indictment. I face this

24 indictment with a clear conscience because I am blameless.

25 In 2001, already as an accused, I asked the supreme military

1 prosecutor to be tried by a domestic court. Having failed in this and

2 after the Law on Cooperation with The Hague Tribunal was adopted, I went

3 to The Hague of my own free will. I believe that Judge Bonomy will

4 remember that at the time, in a bid to prove my innocence, I begged my

5 counsel to ask from NATO to deliver any intercept with me in it or any

6 other document proving my guilt. I could do this because I am certain

7 that I have nothing to hide, I have nothing to be ashamed of, I have

8 nothing to fear, morally or in a purely professional sense. I performed

9 my duties as Chief of Staff of the General Staff of the Yugoslav army or

10 in wartime as the Chief of Staff of the general command in an honourable

11 way.

12 I exhort the OTP to show us intercepts or any other documents or

13 any other evidence which proves that I have an anti-Albanian bias or which

14 proves that I, in any way, instigated or abetted the expulsion of

15 Albanians from Kosovo and Metohija. I was a soldier and I remain one. I

16 always acted upon orders, orders based on law. I always acted upon my own

17 conscience, although I was appointed as Chief of the General Staff of the

18 Yugoslav army at a time when the decision on the aggression had already

19 been adopted, I am still proud of the general command staff, which I

20 headed. I am proud of the Yugoslav army and their commanding officers,

21 because they stood up and resisted an immeasurably superior force within

22 the limits of what was reasonably possible, all the way until the

23 Resolution 1244 was passed and then a withdrawal was ordered. We did not

24 bring shame to our glorious ancestors. We did not, as some ill-informed

25 people seem to suggest, capitulate.

1 How did the Yugoslav army leave Kosovo and Metohija? General

2 Jackson probably provided the best illustration of this. What he said at

3 the time was it was obvious that this was an undefeated and still

4 operational army. For the JNA and its command officers, this is high

5 recognition indeed.

6 After three months of war, after 13 of our tanks were destroyed or

7 damaged, and three -- with 350 fighters defending their home country

8 involved, this was an admirable act. In my heart it is, and I am certain

9 that it applies to all the rest. There is this festering wound and sorrow

10 for all those who killed the police and army alike, as well as the

11 civilians that perished, those belonging to the various ethnic groups,

12 whose sacrifice we still admire.

13 I only wish to offer a couple of elementary conclusions, which I

14 believe will be proven throughout this trial.

15 First of all, the Chief of Staff of the Supreme Command was a

16 position in which I performed my duties to the best of my ability. I

17 complied with the constitution and with my country's laws, with the laws

18 and customs of war, with the international humanitarian law of war, with

19 the combat rules and the use of units in armed warfare and all the other

20 provisions and regulations.

21 Secondly, there was no plan for the expulsion of Albanians, nor

22 was I involved in any situation where such a plan was discussed. Had this

23 plan indeed existed and had it been openly debated, I would have opposed

24 it; that much is certain.

25 Thirdly, there was no such thing as joint criminal enterprise;

1 therefore, I could not have been involved in one.

2 Fourthly, I never aided or abetted, instigated, or ordered any

3 violations of humanitarian law. Quite the contrary, in fact.

4 Fifthly, I took countless precautions through my command system in

5 order to reduce to the greatest possible degree the possibility of any

6 action that could lead to crimes, especially war crimes. This is

7 certainly not something I would have done as a member of anything

8 resembling a joint criminal enterprise.

9 Sixthly, as for the violations of the humanitarian law of war,

10 those were reported by officers in charge in areas wherever this happened.

11 These people were immediately prosecuted in these very complex

12 circumstances because there was a war on, but measures were taken against

13 these people, appropriate measures, if I may say.

14 I would like to take this opportunity to address the Prosecutor,

15 since we have not had an opportunity to communicate yet. I believe that

16 having heard my opening statement and in view of all the evidence so far

17 and the evidence that will be presented by my Defence team, including a

18 number of credible witnesses and expert witnesses, the Prosecutor will, no

19 doubt, gain a more faithful picture of what happened in the war itself,

20 causing them to give up the charges, to drop the charges, in the

21 indictment and give up all their allegations. That would be a great

22 contribution, not only to this trial but to justice as a whole.

23 Your Honours, I believe that after my Defence case you will have

24 learned that my words are true. You will have learned that I am blameless

25 and innocent, and you will be in a position to rule accordingly and to

1 acquit me.

2 I, once again, wish to thank again for giving me a chance to say

3 this. Thank you very much.

4 I'm sorry if I was reading too quickly.

5 JUDGE BONOMY: Thank you, Mr. Ojdanic. Please be seated.

6 Now, Mr. Stamp, would you care to call your first witness?

7 MR. STAMP: Yes, I would. Thank you very much and good afternoon.

8 The first witness is Sandra Mitchell. Before she is brought into

9 court, may I just indicate that she is one witness that I am applying that

10 a part -- a major part of her testimony be received pursuant to 89(F), and

11 I would also ask to put a few questions to her. She was originally

12 scheduled for four hours in chief. I will not be taking any significant

13 part of that time, as originally scheduled.

14 JUDGE BONOMY: Is the statement you intend to provide simply this

15 one page statement which I have received?

16 MR. STAMP: The statement which I intend to submit to the Court is

17 composed of three separate statements, including a -- including two

18 one-page addenda, one done on Saturday, I suspect that is the one that

19 is -- possession of, and two others done in 2002. The others done in

20 2002 would have been part of the original package which was made available

21 to the parties in the matter some time ago. I think the statement of the

22 8th of July is P2225, and the statements of 2002 are in P2226.

23 JUDGE BONOMY: Now, the issue at the moment is a very simple issue

24 of whether this witness should be permitted to give evidence orally but

25 adopting into her evidence written statements. There are three of these.

1 One is the substantive statement and the other two are addenda, as has

2 been explained. I think Mr. Stamp's approaching the matter in this way

3 because Rule 89(F) has within it words which suggest it may be necessary

4 for the Trial Chamber to take a positive decision to admit evidence on

5 basis of the interests of the justice allowing that.

6 Does any Defence counsel have any submission to make that the

7 interests of justice dictate that she should not be allowed to give

8 evidence following that course? All right. Now --

9 MR. IVETIC: Your Honour.

10 JUDGE BONOMY: I'm sorry.

11 MR. IVETIC: We have prepared and filed a motion in limine seeking

12 to bar introduction through this witness of evidence that comes from the

13 so-called Kosovo/Kosova: As Seen, As Told report prepared by the OSCE

14 based upon several grounds, and to the extent that her written statements

15 do make reference to that report or relate to the matters contained

16 therein, we would have an objection to that.

17 JUDGE BONOMY: That, I think, is a separate question from the one

18 that I am asking you to deal with at the moment.

19 MR. IVETIC: Okay.

20 JUDGE BONOMY: On the question of principle, whether any part of

21 her evidence may be incorporated by her from a written document, leaving

22 aside the question of which parts of that may be objectionable, do you

23 have anything to say?

24 MR. IVETIC: As long as it is qualified in proper evidence, that

25 would be fine.

1 JUDGE BONOMY: All right.

2 Now, it seems to me that it shouldn't be necessary to make a

3 separate application in terms of Rule 89(F) every time. If a witness is

4 coming here to say -- to be available for cross-examination and to --

5 having taken the solemn declaration, to say that a written statement is

6 entirely -- an entirely accurate account, then I can't see any reason in

7 the interests of justice, in general, why that shouldn't happen.

8 Now, that doesn't rule out the possibility of such a situation

9 arising. So the course we will follow from now on is that such witnesses

10 will automatically be entitled to be led in that way, subject to any

11 preliminary objection being taken by the Defence. And it will be for the

12 Defence to take exception; otherwise we will simply accept that the

13 evidence should proceed that way.

14 On the matter raised by Mr. Ivetic, I haven't seen that motion.

15 If it's been filed, then it hasn't reached me yet.

16 MR. IVETIC: Your Honour, it was only submitted during the pause,

17 the last break that we had, so it is possible it has not made it to the

18 parties yet.

19 JUDGE BONOMY: However, I don't know whether it necessarily arises

20 just at the moment. I leave it to anyone who wishes to object to any part

21 of this witness's evidence to take exception to a question that counsel

22 believes will lead to an inadmissible answer or, alternatively, to object

23 to a line of evidence when it's plain what the line of evidence the

24 Prosecutor proposes is.

25 MR. IVETIC: Well, Your Honour, the latest statement that we

1 received from the Office of the Prosecutor lists this report that we take

2 question with, Exhibit P473, as a document which it seeks to submit

3 pursuant to 89(F) as well.

4 JUDGE BONOMY: Well, let's wait until we get to the stage of the

5 witness being presented with that particular document, and then we'll

6 address the problem at that stage.

7 MR. IVETIC: Fair enough. Thank you.

8 JUDGE BONOMY: Could you bring in Ms. Mitchell, please.

9 [The witness entered court]

10 JUDGE BONOMY: Could you stand up, please, Ms. Mitchell. Now,

11 make yourself comfortable with the equipment, first of all.

12 THE WITNESS: Thank you.

13 JUDGE BONOMY: And then when you feel comfortable, would you take

14 the solemn declaration and read it, please.

15 THE WITNESS: I solemnly declare that I will speak the truth, the

16 whole truth, and nothing but the truth.

17 JUDGE BONOMY: Please be seated.

18 THE WITNESS: Thank you.

19 JUDGE BONOMY: Mr. Stamp.

20 MR. STAMP: Thank you, Your Honour.

21 WITNESS: SANDRA MITCHELL

22 Examination by Mr. Stamp:

23 Q. Good afternoon. Could you please start by stating your full name?

24 A. Sandra Lynn Mitchell.

25 Q. And what is your present occupation?

1 A. I am currently the director for the Office of Communities, Returns

2 and Minorities for the United Nations Mission in Kosovo.

3 Q. And by profession you're a lawyer?

4 A. That's correct.

5 Q. Could you briefly tell us about your career as a lawyer involved

6 in human rights and international humanitarian law.

7 A. That's a big question.

8 I have about 12 years' experience working in the Balkans in the

9 conflicts of Bosnia, Kosovo, Macedonia, as well as other similar types of

10 events in Africa and in Asia, both conflict -- working during the actual

11 conflicts, either in a humanitarian operation or in a human rights

12 capacity as well as in post-conflict situations with institution buildings

13 along various topics of the rule of law and human rights institution

14 building.

15 Q. And where were you posted or what is your position in --

16 THE INTERPRETER: The counsel is kindly requested to speak into

17 the microphone --

18 Q. -- in 2000.

19 MR. STAMP: Sorry, I wasn't being heard.

20 JUDGE BONOMY: [Microphone not activated].

21 MR. STAMP:

22 Q. Where were you posted between October 1998 and April 2000?

23 A. I was the director for human rights for the Kosovo Verification

24 Mission in Pristina, and then in the refugee camps in Macedonia and

25 Albania during the NATO air campaign.

1 Q. Now, in respect to your work at that time as director for human

2 rights in the Kosovo Verification Mission, did you give to the OTP three

3 statements which you have signed, two in the year 2000 and one last

4 Saturday?

5 A. Yes, I did.

6 Q. And did you recently review those statements and are the contents

7 of those statements true to the best of your knowledge, in the sense that

8 if you're asked about these issues today, right now, would your answers

9 remain the same?

10 A. Yes, they would.

11 MR. STAMP: The statements, Your Honours, as indicated, are P225

12 [sic] and 226 [sic].

13 Q. Can you briefly describe the role of the KVM in Kosovo in that

14 period, its creation and mandate.

15 A. There were pre-existing international standards applying to the

16 KVM mission even before it was established, and then there were two

17 specific Kosovo-related international instruments regarding the mandate.

18 The pre-existing legislation and standards concerned the OSCE itself,

19 which is the Organisation for Security and Cooperation in Europe, an

20 inter-governmental organisation made up of 55 countries, including at the

21 time the Federal Republic of Yugoslavia, although it had suspended status

22 for part of the period.

23 The OSCE, as being made up of these 55 countries, all of whom have

24 signed on to the United Nations declaration for human rights, the

25 international covenant on civil political rights, et cetera, most of the

1 international instruments, and the laws on war, the Geneva Conventions,

2 and the laws of The Hague. So these apply to any OSCE field operation

3 that's deployed, and they had been deploying missions throughout the

4 Balkans since the Dayton Agreement, central Asia, et cetera.

5 The Kosovo-specific governing documents were the United Nations

6 Security Council 1199, which was enacted in September 1998 as a result of

7 escalating displacement of Kosovo civilians. At that time the numbers

8 were in the 2 to 300.000 refugees that were putting tremendous burdens on

9 the surrounding countries. So the Security Council resolution was passed.

10 The resolution provided -- stated that Kosovo at that time was in a state

11 of conflict and provided jurisdiction for this Tribunal as well as urging

12 the parties to allow the return of all the refugees, try to find a

13 peaceful resolution, et cetera.

14 The following month, in October 1998, the head of the OSCE called

15 the chairman in office, of these 55 countries, the chairmanship rotates

16 every year and it's the foreign minister of the particular country that

17 holds the particular the seat. At the time that was the Polish foreign

18 minister Geremek. Foreign Minister Geremek signed an agreement with the

19 foreign minister of Yugoslavia, Jovanovic, which established the Kosovo

20 Verification Mission between the governing authorities in Serbia at the

21 time and the OSCE. And that mandate brought in 1199 and provided for

22 regular reporting to Yugoslav officials and other specific things and was

23 the basis in which the mission was stood up. It put a cap of 2.000 staff

24 members, which was met very rapidly. And in a period of about 90 days,

25 the OSCE set up a field operation that contained a headquarters in

1 Pristina, five regional offices in more than 40 other smaller presences

2 throughout Kosovo, where there were tensions and conflicts.

3 Q. Thank you. May I just say for the record --

4 JUDGE BONOMY: Can I just ask a question arising out of that.

5 That exercise took beyond the end of 1998, just the setting up

6 exercise?

7 THE WITNESS: The Security Council resolution in September, the

8 agreement with the FRY or Yugoslav authorities in October, the immediate

9 plans and preparation, deployment of a team to Vienna to stand up this

10 mission, the OSCE had never done a mission of this size before. One

11 hadn't been seen like this since UNPROFOR in Bosnia.

12 Between November and December, the staffing started at a very

13 robust rate by all member countries. And by the time of the withdrawal of

14 the mission, there were more than -- and the mission withdrew in March of

15 1999, there was more than 1.300 international staff and several thousand

16 national staff employed at the mission at that time.

17 JUDGE BONOMY: The reason I asked the question is just to gauge

18 how much the activity of the personnel may have been concentrated on

19 simply setting up the mission throughout the period before the bombing

20 actually started, and it seems to me it may have been a substantial part.

21 THE WITNESS: It was the most remarkable build-up of a mission

22 that I've been involved in. The funding was incredible, largely through

23 governments like Norway that were going to be moving in to leading the

24 OSCE in 1999, several hundred million dollars, resources were poured in.

25 This was a serious peacekeeping operation to stop, at the time, the flow

1 of refugees. So the logistical side was really impressive of a scale --

2 like I've said, I've not seen, and in large part because countries

3 utilised all their own resources in telecommunications, transportations,

4 getting resources in theatre very quickly, and OSCE has much, much faster

5 administrative procedures than the United Nations.

6 JUDGE BONOMY: Mr. Stamp.

7 MR. STAMP: Your Honour, I'm told it's important these numbers are

8 properly reflected on the record. So may I just indicate that at page 83,

9 lines 15, 16, it should be P2225 and P2226. I think on the record the

10 numbers were not correct.

11 Q. Now, Ms. Mitchell, bearing in mind that the role of the human

12 rights division of the KVM is discussed in the statements you have given

13 to us and which we're apprised of, can you briefly tell us what was the

14 primary role of the mission of the KVM?

15 A. The primary role for the human rights division was to verify the

16 observance of human rights in Kosovo by authorities, both the governing

17 authorities, the VJ, the Yugoslav army, the Serbian police, the special

18 forces, the UCK, the Kosovo Liberation Army, anyone that was exerting any

19 type of control over the civilian population.

20 The second part of the mandate was to coordinate and cooperate.

21 Primarily my department's responsibilities were with the International

22 Committee of the Red Cross on detentions and missing persons, UN High

23 Commissioner for Refugees on displacement, and the Office of the

24 Prosecutor of this Tribunal for evidence and of crimes that were being

25 committed while we were in theatre.

1 Q. Now, bearing in mind that much of this is already documented,

2 could you tell us if you published any major document and the sources and

3 methodology of this document as prepared?

4 A. The KVM produced a large volume of documents. The human rights

5 division had pretty clear methodologies in place. It's difficult for me

6 to answer that question without trying to put a little bit of context into

7 the environment that we were operating under at the time. Because it --

8 the methodology did tend to change when we were in Kosovo and when we were

9 dealing with refugee statements.

10 Q. Among the documents that appeared one was entitled was As Seen,

11 As Told.

12 A. As Seen, As Told, Part I, there's are two parts to that report,

13 was the culmination of all the human rights documentation processes and

14 procedures that we undertook in Kosovo from October until March. All of

15 the human rights files were evacuated with the mission, and I can go into

16 the methodology further, if you want, and then the --

17 Q. Well, could you just tell us briefly first. As Seen, As Told,

18 Part 1, was a report on what?

19 A. That was a report of the human rights violations and humanitarian

20 law violations --

21 MR. IVETIC: Objection, Your Honour.

22 JUDGE BONOMY: Just -- be seated just for a moment.

23 Complete your answer, please, Ms. Mitchell.

24 THE WITNESS: -- that were documented by the human rights officers

25 of the mission between the period October 1998 to June 1999 and also

1 included statements that were collected from thousands of refugees.

2 JUDGE BONOMY: Now, the objection that's being taken to this

3 evidence is to the admission of it.

4 And it may be, Mr. Ivetic, that the Trial Chamber has to hear a

5 bit more about the methodology and then perhaps see even examples from the

6 material itself before it can make a proper determination upon your

7 objection. The fact that we do that doesn't mean that the material has

8 been admitted, because this is material which will have to be -- on which

9 a positive decision to admit it will have to be taken in light of the fact

10 that you have taken objection to it. But do you really see us being in a

11 position to deal with it adequately before we have heard the methodology

12 that was used to compile it and the general nature of the material

13 contained in the book?

14 MR. IVETIC: Well, Your Honour, I thought that it might be useful

15 for the Court to have in mind the specific types of objections that we

16 have so that while considering the testimony as to the methodology of the

17 report you can bear that in mind and perhaps facilitate the process of

18 reaching a decision as to the propriety of that type of testimony or

19 evidence.

20 JUDGE BONOMY: Well, we'll hear that.

21 I think, Ms. Mitchell, in the circumstances since we're almost at

22 the time for a break, the best thing is for you to leave the courtroom

23 just now. We will be resuming no earlier than 3.15, and depending on how

24 long I listen to Mr. Ivetic just now, it might be slightly later than

25 that. But as long as you're ready to resume at 3.15, that's adequate.

1 THE WITNESS: Thank you, Your Honour.

2 [The witness stands down]

3 [Trial Chamber and legal officer confer]

4 JUDGE BONOMY: Mr. Ivetic, do you have copies of your motion for

5 the Trial Chamber?

6 MR. IVETIC: I have unsigned copies, Your Honour, that I could

7 distribute to both the OTP --

8 JUDGE BONOMY: Could you pass them to us then, please?

9 MR. IVETIC: Absolutely.

10 [Trial Chamber confers]

11 MR. STAMP: I'm wondering if one of those copies could also been

12 able to us. We have not been able to see it.

13 MR. IVETIC: I was going to provide a copy for counsel as well.

14 [Trial Chamber and legal officer confer]

15 JUDGE BONOMY: Now, Mr. Ivetic, speaking for myself, the only

16 thing set out here on which I need some elaboration is paragraph -- where

17 are we. In paragraph 3 on the first page, it says that the information

18 collected not only is hearsay but neither follows nor complies with the

19 manner, that means -- I think the word is prescribed by the Rules of

20 Procedure and Evidence of the Tribunal for the admission of evidence.

21 Now, what rules are you referring to there?

22 MR. IVETIC: Well, Your Honour, essentially it's our position that

23 this report and the testimony of Ms. Mitchell arising from it attempts to

24 introduce into evidence by written form the statements of unnamed alleged

25 victims that are unknown --

1 JUDGE BONOMY: I followed -- I've read all that. I'd like you to

2 direct me to the rule that you say is being breached by this.

3 MR. IVETIC: I believe if the statements of the witnesses of the

4 alleged occurrences are being submitted written form, they need to comply

5 with Rule 92(F) -- I apologise, 92 bis, Your Honour.

6 So in that sense we believe that the witness who has already

7 testified that a portion of her staff's work was to conduct investigative

8 work for the ICTY, which I submit means the Office of the Prosecutor,

9 trying to get this unsworn anonymous unverifiable testimony in written

10 form through her is trying to get inadmissible testimony in through the

11 backdoor, which we would take grave objection to.

12 And essentially, as Your Honours have already heard, the witness

13 has qualified the report as being conclusions of laws that were breached.

14 In essence, the report seeks to supplant the role of the Trial Chamber in

15 viewing facts and making factual and legal determinations based upon those

16 facts.

17 JUDGE BONOMY: Well, these are different -- I understand all the

18 submissions you've made; that's not the question I'm asking you. I'm just

19 trying to identify the rule you say which is being breached, that's all.

20 MR. IVETIC: I appreciate that.

21 JUDGE BONOMY: You say it's Rule 89(F) which is being breached by

22 the --

23 MR. IVETIC: 92 bis, Your Honour.

24 JUDGE BONOMY: Oh, 92 bis.

25 MR. IVETIC: Correct. Insofar as the report purports to contain

1 written statements of actual eye-witnesses to occurrences and that report

2 is being submitted in written form, I believe the testimony would have to

3 be sworn and in the proper format to be submitted into evidence in that

4 manner. Trying to do so by way of this report and by way of this witness

5 appears to me to be a way around the rule.

6 JUDGE BONOMY: But your way of characterising the issues to say

7 that each of the persons from whom information has been gathered is a

8 witness and therefore subject to the rule. So it's a question of how the

9 Trial Chamber interprets the word "witness."

10 MR. IVETIC: I agree.

11 JUDGE BONOMY: And we may be assisted in interpreting the

12 word "witness" by looking also at the practice that's been followed so far

13 in the Tribunal and by looking at Rule 89(C), which says: "The Chamber

14 may admit any relevant evidence which it deems to have probative value."

15 MR. IVETIC: That is correct, so long as the probative value is

16 not outweighed by the prejudicial effect. And as the motion sets forth,

17 given that the source material for these statements, including the

18 identities of alleged victims and alleged perpetrators are not included in

19 the report, were not ever disclosed to the Defence, makes it impossible to

20 seek to rebut this testimony, and therefore I submit the prejudicial

21 effect to all of the accused, really, is quite severe indeed, particularly

22 in light of the fact that the report itself questions the -- I should say

23 admits that there are questions as to the veracity of some of the

24 statements insofar as there were inconsistencies between different

25 interviewees about different incidents and --

1 JUDGE BONOMY: I don't need you to repeat more or less word for

2 word what I've already read. Don't you understand that?

3 MR. IVETIC: Fair enough.

4 JUDGE BONOMY: If you want to add something to what you've

5 written, then please do that, but all you're doing is repeating what

6 you've already set out in writing.

7 MR. IVETIC: Well, I stand on those written submissions.

8 JUDGE BONOMY: All right. Thank you.

9 Yes, Mr. Sepenuk.

10 MR. SEPENUK: We join in the motion that my colleague, Mr. Ivetic,

11 has filed, and obviously, Your Honour, under 82(C) can admit the report if

12 you're satisfied with its reliability. For traditionally admitted

13 hearsay, whether they are satisfied of the reliability of the document.

14 We question the reliability of this document, its objectivity,

15 and, Your Honour, if the Trial Chamber would permit, there's a procedure

16 that's used very frequently in the United States. It's called the voir

17 dire examination, and in this case I think it would take five minutes or

18 less. Just very brief questions to Ms. Mitchell to assist Your Honours in

19 deciding whether this is the kind of document that should be admitted in

20 evidence.

21 Now I would withdraw that request if Your Honour, just on the face

22 of things, decided it's not admissible. But if you do have doubt or if

23 you think it would assist you at all, I would ask for permission to speak

24 very briefly during the -- just interrupt the direct examination for a few

25 minutes to ask some questions which show, in our view, why this report is

1 unreliable and should not be accepted by the Trial Chamber.

2 JUDGE BONOMY: Mr. O'Sullivan.

3 MR. O'SULLIVAN: Thank you, Your Honour.

4 We adopt and support the Lukic submission, and one point. And I

5 would direct the Trial Chamber to Rule 95, which states that: "No

6 evidence shall be admissible if obtained by methods which cast substantial

7 doubt on its reliability or if its admission is antithetical, to and would

8 seriously damage, the integrity of the proceedings."

9 Your Honour, I think weighting in all circumstances against

10 Rule 89(C) that the prejudice outweighs the -- any value that these

11 statements may have and are, therefore, inadmissible.

12 JUDGE BONOMY: Yes, Mr. Petrovic.

13 MR. PETROVIC: [Interpretation] Your Honour. With your leave, Your

14 Honour, unfortunately I don't know what it says in my learned friend's

15 submission. However, what I have heard in the oral submissions I would

16 like to say that we accept.

17 I would just like to draw your attention to two things. First of

18 all is the fact that the document that we are now discussing does not have

19 the level of reliability that would suffice for acceptance. None of the

20 sources quoted in the document are named. Some people are mentioned, some

21 women, some statements. None of that is named, does not have a name. And

22 when we -- if we don't have that, we do not have the opportunity to verify

23 the reliability of the documents or statements given by those people.

24 The fact that I've just mentioned leads to another fact, and that

25 is that this document does not have the sufficient level of reliability to

1 be accepted. Having read a statement by Mrs. Mitchell, we have learned

2 that all of these documents have been handed over to the Prosecution of

3 the Tribunal in 2002 when this statement was first taken. As far as I

4 know, these statements have never been disclosed to the Defence teams.

5 I would also like to draw your attention to a decision from the

6 Strugar case dating 26th of May, 2004. In this decision, the matter that

7 was tackled is very similar. I'll give you the exact name of the

8 decision.

9 [In English] "Of certain documents" --

10 [Interpretation] This was in Strugar case on 26th of May, 2004,

11 following a debate between the parties on the inadmissibility of a piece

12 of evidence marked as MFI 51, which contained a number of statements that

13 were obtained in a similar way as the statements dealt with by OSCE that

14 are being introduced through Ms. Mitchell. And the Trial Chamber rejected

15 that document, that compilation of unnamed sources or documents, due to

16 the fact that there was not a sufficient level of reliability of the

17 document, and also for the fact that the documents were not marked, that

18 the statements of these people did not have the source, it was not known

19 who took the statements, under what circumstances, and that is why the

20 Trial Chamber in this case decided not to admit this document that is very

21 similar to the document that is being introduced at the moment through

22 Ms. Mitchell.

23 MR. BAKRAC: [Interpretation] Your Honour, with your leave, the

24 Defence of General Lazarevic would like to join the submission by the

25 Lukic team and everything that has been said to far.

1 I would like to add to that that in the statement that's given by

2 Ms. Mitchell there are some things that will have an impact on the

3 reliability of those statements. When those statements were taken, one

4 had to take into account the objectivity, the training of the person who

5 took the statements, and we do not know who took the statements, what

6 persons took the statements, whether they were objective and trained to do

7 that. This is what you can find in Ms. Mitchell's statements, and this is

8 an additional argument for which we would like to join whatever has been

9 said so far by our colleagues.

10 JUDGE BONOMY: Thank you.

11 All right. Well, it is time for us to break. We'll resume at

12 half past 3.00 and give an indication then of how this should be dealt

13 with.

14 MR. STAMP: I hope, I think Your Honour will no doubt give me an

15 opportunity to respond before --

16 JUDGE BONOMY: Yes. It may not just be an opportunity to respond;

17 it may be an opportunity to expand in some way to explain the position

18 further to us, but we need to give consideration to these submissions

19 first of all.

20 MR. STAMP: Very well.

21 --- Recess taken at 2.57 p.m.

22 --- On resuming at 3.36 p.m.

23 JUDGE BONOMY: What we've decided to do is hear this evidence

24 under reservation of its admissibility.

25 Now, that means that all issues of cross-examination will require

1 to be explored before we decide whether the evidence is admissible. It

2 satisfies the point made by Mr. Sepenuk and allows any issues relating to

3 its reliability and authenticity. Similarly, it deals with the point made

4 by Mr. O'Sullivan, founding on Rule 95. But the Chamber feels that it

5 will be best enabled to make a final decision on admissibility in the

6 light of all the information it can obtain from examination and

7 cross-examination.

8 Once we have heard the evidence in its entirety, we'll make a

9 decision . It may not be an immediate decision but it will be made very

10 shortly after the evidence has been completed. It's not a question of

11 holding this decision over until much later in the trial process.

12 So we should have -- we should have Ms. Mitchell back, please.

13 MR. STAMP: Thank you, Your Honour. But before we proceed, may

14 I --

15 JUDGE BONOMY: Oh, I'm sorry.

16 MR. STAMP: There's one thing I should say for the record.

17 One of the complaints was that these are ordinary persons giving

18 statements that are not available to the Defence. I think I should put

19 this on the record and make it quite clear before the end of the

20 cross-examination that these statements are available, and it is the

21 responsibility of the Defence when they receive the -- when they receive

22 the statement of Sandra Mitchell in which she says that she gave these

23 statements, underlying statements, that the report is based on to the ICTY

24 to make that request, there are specific rule, Rule 66(B), that request

25 has not been made so far as I know. So that is not a complaint, I think,

1 to be raised here and I would not want at the end of cross-examination an

2 issue as to these underlying statements to arise without that being made

3 clear.

4 JUDGE BONOMY: Well, the point that was being made was that these

5 statements hadn't been disclosed, as you acknowledge, and what you're now

6 confirming is they weren't disclosed.

7 MR. STAMP: No, they were not. The rules of disclosure in the

8 Tribunal are pretty straightforward, although there is a lot of debate in

9 regard to them. But I think they are pretty straightforward. These rules

10 do not fall under -- these underlying statements, except for about 12, do

11 not fall under Rule 66(A), neither do they fall under Rule 68. As a

12 matter of fact, they are the opposite of Rule 68. They are highly

13 inculpatory.

14 The Defence, having been notified a long time ago that this

15 witness would testify for the Prosecution, that this document would be a

16 part of the exhibits for the Prosecution, that these are the underlying

17 documents that support this publication, would have been due to -- it's my

18 submission, to make the request to see these documents under Rule 66(B)

19 which provides for that long before she comes to testify.

20 So I would not want at the end of the cross-examination to hear

21 that there is a Rule 66(B) request for these documents.

22 There are other matters which I think could be addressed, but I

23 believe, as -- that it is quite correct and I accept the decision of Your

24 Honour that the ruling in respect of admissibility should be made after

25 the foundation of evidence is heard.

1 Thank you very much.

2 JUDGE BONOMY: Well, we will hear everyone's submissions at that

3 stage.

4 MR. SEPENUK: Excuse me, Your Honour, I think in light of

5 Mr. Stamp's comment, I think I really do have to make one comment.

6 Again, I got in this case a bit late, but when I got in I found

7 out through the other Defence lawyers that none of these refugee

8 interrogation forms, one question of which is your reasons for leaving

9 Kosovo, which is one of the pivotal issues in this case, had not been

10 disclosed. So at the Status Conference last week I asked Mr. Hannis and

11 Mr. Stamp if they had copies of these statements. The answer was yes.

12 And I said I would certainly like you to turn over copies and certainly to

13 the extent they are exculpatory, please do so and certainly as to

14 witnesses who are gaining to testify, could we have those copies for

15 cross-examination.

16 So just to correct the record in that respect, a specific request

17 was made last week of both Mr. Hannis and Mr. Stamp in that regard.

18 JUDGE BONOMY: Well, it's a qualified request, Mr. Sepenuk, on the

19 terms in which you've just explained it. If you're looking for copies of

20 all the underlying material, then perhaps that's what you should have

21 asked for.

22 MR. SEPENUK: No, as a matter of fact, Your Honour, I did, but I

23 said I didn't think that I was justified in asking for all the material

24 except to the extent that it was exculpatory. And if it was not

25 exculpatory, and that of course would be in the decision of the

1 Prosecution team, I said at the very least could you turn over the

2 statements, those statements, for the witnesses who are definitely going

3 to be here so we can use it on cross-examination. Both Mr. Hannis and

4 Mr. Stamp did answer that in the affirmative and said that when those --

5 before those witnesses testify we can have a copy of that statement.

6 JUDGE BONOMY: But I suspect the answer is that none of it's

7 exculpatory according to them, or it would have had to be disclosed under

8 Rule 68.

9 MR. SEPENUK: Yes.

10 JUDGE BONOMY: And secondly, none of the underlying witnesses or

11 personnel who provided the information is likely to be a witness before

12 the Trial Chamber.

13 MR. STAMP: Just --

14 JUDGE BONOMY: Or is that wrong?

15 MR. STAMP: Well, under those statements --

16 JUDGE BONOMY: How many, 12? Sorry.

17 MR. STAMP: 12. And these statements are being made available in

18 accordance with the request.

19 MR. SEPENUK: They haven't been yet, as I understand it, but they

20 will be.

21 JUDGE BONOMY: But you're now on notice, Mr. Sepenuk, that there's

22 a lot more than 12 available to the Prosecution, it would appear.

23 MR. STAMP: The evidence before the Court since the 89 bis

24 statement is now in evidence that there are 3.000 such forms.

25 But as the Defence knows or should know that the Prosecution has

1 received tens of thousands of forms in relation to refugees. These are

2 forms which indicate what happened and why they left by various

3 organisations that were at the refugee camps. They are available and it

4 really is the responsibility of the Defence to ask for however many of

5 those they want, and we will make them available.

6 MR. SEPENUK: Your Honour, not to beat this to death, the only

7 reason I even mentioned it is that the statement was made that no Defence

8 lawyer had ever requested copies of these documents. It's simply not so.

9 I did at the Status Conference last week. And then, if you don't mind,

10 one other statement. I hate to even bring it up.

11 But when you say there are tens of thousands of these documents

12 available, presumably this report was based on 2700. I don't know whether

13 you spoke advisedly there. But if there are tens of thousands,

14 particularly if in those tens of thousands, if there's anything

15 exculpatory, we would certainly like to see it.

16 MR. STAMP: I wouldn't like to comment too much. Whatever is

17 requested by the Defence will be delivered to them pursuant to the rules.

18 JUDGE BONOMY: Are you saying there are tens of thousands of forms

19 in relation to refugees? Is that what you're saying?

20 MR. STAMP: In relation to refugees. In relation to this report,

21 there are approximately 2700 plus.

22 JUDGE BONOMY: What are you referring to when you say there are

23 tens of thousands of forms?

24 MR. STAMP: In 1999 and 2000 the Prosecution received not only

25 from the KVM mission but from a variety of human rights organisations

1 forms in respect of refugee [indiscernible]. Since we are hearing now

2 that the Defence might want to see the forms in respect of this report, I

3 just want it to be made clear that they must request any of these

4 documents which are in our possession at a reasonable time so that proper

5 arrangements can be made for their delivery.

6 JUDGE BONOMY: Are these forms available on the electronic

7 disclosure suite as part of your Kosovo collection?

8 MR. STAMP: I would think not.

9 JUDGE BONOMY: Why not?

10 MR. STAMP: The documents, I believe, and here I am hardly

11 speculating, were so numerous and they consist primarily of forms, that

12 they were not all scanned into the system.

13 [Trial Chamber confers]

14 JUDGE BONOMY: Well, all submissions that are --

15 Mr. O'Sullivan, yes.

16 MR. O'SULLIVAN: I must take issue with the position taken by the

17 Prosecution in relation to these statements. He has referred --

18 JUDGE BONOMY: Well, Mr. O'Sullivan, the decision has been made

19 already that we're going to hear this evidence. And then at the end of

20 all examination, cross-examination, we'll hear the submissions that

21 parties have to make in the light of that. Will that not adequately

22 suffice?

23 MR. O'SULLIVAN: Thank you very much, Your Honour.

24 JUDGE BONOMY: Thank you. So let's have Ms. Mitchell back,

25 please.

1 [The witness entered court].

2 JUDGE BONOMY: Thank you for your patience, Ms. Mitchell. Please

3 have a seat again and the examination will continue.

4 Mr. Stamp.

5 MR. STAMP:

6 Q. The last question I was asking about the report As Seen, As Told.

7 Could you briefly describe, bearing in mind that this is in your statement

8 already, what the report is about and what the sources are for the report.

9 A. The As Seen, As Told report is a culmination of statements

10 received by human rights officers in Kosovo prior to the NATO air

11 campaign. Upon the withdrawal of the mission, information was collected

12 from refugees to continue the human rights mandate of monitoring the

13 situation inside Kosovo. And the second part of the report includes

14 statements and information collected by human rights officers after the

15 NATO air campaign between June and September 1999 during the

16 implementation of the -- a different Security Council resolution and the

17 demilitarisation of the UCK and the withdrawal of the Serbian security

18 forces.

19 Q. And when was it published?

20 A. Both reports were published together in order to provide a

21 complete picture. Given the seriousness of many of the findings, we felt

22 it very important to release both reports at the same time. And they were

23 released in December 1999, when the analysis was completed.

24 Q. Could we discuss briefly the methodology in collecting the

25 statements. What was the system used in collecting the statements before

1 the NATO bombing began in March 1999, and what was the system, if there

2 was any change, in collecting these statements after the bombing started?

3 A. Prior to the NATO bombing, as the mission was standing up and as

4 the Court noted, there may have been additional tasks, the human rights

5 division itself was comprised at the time of the withdrawal of about 75

6 people, but many, many others became involved in the collection of human

7 rights data. And I'll explain that in the methodology.

8 The situation the mission was deployed into was already a critical

9 human rights environment on the ground. There was -- it was a state of

10 marshal law, of military control and occupation of most of the Kosovo

11 Albanian areas. This is a result of the escalation of hostilities over

12 the summer months and then the resulting mandate that I described earlier.

13 Given this critical human rights situation and large-scale

14 displacement of over 2 or 300.000 people, the sheer volume of the

15 information that we were seeing and that the field staff was seeing

16 throughout Kosovo required that we prioritise, as much as possible. So we

17 began prioritising on statements from victims and direct witness accounts.

18 We had a fairly intrusive monitoring mandate under the agreement with

19 Yugoslavia. The mission was not only monitoring the human rights

20 situation but was also monitoring a cease-fire that had been agreed to and

21 the withdrawal of specific numbers of Serbian security forces and their

22 return to barracks. So there was all kinds of monitoring going on at the

23 time, all of which was impacting the lives of people in the communities

24 and their human rights.

25 So to collect this kind of information in such a critical

1 environment with such volumes, we had to go to very centralised, standard

2 reporting. And the operational guidelines, the tasks, instructions of how

3 this was to be done are all attached to my statement. So I won't go into

4 that, except to state that the methodology we used was basically on really

5 two criteria: One was to ensure the highest reliability of the

6 information; and that it be collected in an impartial way.

7 One has to remember that nowhere does any authority admit to human

8 rights violations. Authorities do not cooperate with the investigations

9 of human rights situations, particularly in a state of military conflict

10 that we found ourselves in. So reliability and impartiality became very

11 critical. We felt the only way we could do that, bearing in mind how

12 politicised the conflict in Kosovo had been with Yugoslavia and the

13 international community, staff were recruited that were all -- either had

14 law enforcement background, police officers deployed in contingents from

15 some host countries. We had military officers put into a civilian

16 capacity that were helping with logistics and security. This was armed

17 conflict, so there was a lot of dangerous security situations that staff

18 were being put into. From the human rights perspective, we were very

19 conscious of the fact that information we were collecting about killings

20 that we were seeing was highly sensitive and had to be handled in that

21 way.

22 So the protocols were standardised investigation forms along the

23 types that you would normally see by law enforcement officials. Because

24 of the gravity of what was going on, training for staff in how these forms

25 would be completed. They would be collected weekly in headquarters.

1 Staff were not allowed to keep copies of any of the materials. Their

2 original notes were taken out of their notebooks and attached to

3 statements.

4 As far as investigations, again, the sheer number of the

5 complaints -- when we left Kosovo, we had 750 complaints. These, again,

6 would have been all victim or direct witness accounts of serious crimes,

7 killings, massacres, et cetera. All we could really try to do in those

8 situations was to get additional information, document the crime scenes,

9 get additional statements, corroborate the information, and then closely

10 monitor any official investigations that were going on, and in so doing,

11 was monitoring the administration of justice in the court systems in

12 Kosovo at that time. That information was compiled on a weekly basis, a

13 monthly basis, and spot reports were also issued on specific critical

14 events. And I would describe those as killings of three or more people

15 with strong implications that the security services may have been

16 involved.

17 When the decision was taken to withdraw the KVM from Kosovo on

18 March 20th because of the deteriorating security conditions and the

19 escalation of the violence, additional troops being deployed from Serbia

20 into Kosovo, et cetera, all the human rights information was assembled by

21 five senior human rights officers in their areas of responsibility.

22 Documents that were not relevant to these 750 cases were shredded, burned,

23 destroyed, as was a large part of the administration side of the mission.

24 We assembled that information in Skopje, and it remained in my custody

25 until it was subsequently transferred to the office in Warsaw in June of

1 1999 for analysis and preparation of the report.

2 The information -- the methodology for collecting refugee

3 statements, when the mission withdrew and we started seeing these huge

4 numbers of people pouring over the borders in Afghan -- in Albania and in

5 Macedonia, we quickly realised that some of the stories we were hearing

6 initially at the borders were just replications of violence that we had

7 already been seeing and that this was going to be a very serious

8 humanitarian situation.

9 So OSCE reconfigured the stand-down of the mission. We evacuated

10 1300 people within weeks. That number went down to about 450

11 internationals, 200 of whom were working in the camps in Albania and in

12 Macedonia as their being stood up, perhaps helping first with the

13 humanitarian preparations but quickly others came in to do that. And

14 information was then collected from refugees. And using a standardised

15 form, which I believe is also in my statement, we were -- we asked the

16 same questions of refugees. We again were identifying only victims and

17 direct-witness accounts. The KVM had very, very high credibility with the

18 Albanian population. In any critical human rights environment, people

19 will seek protection. Many Albanians sought protection from the KVM, so

20 in the camps when they saw the bright orange cars of the KVM they would

21 provide us with assistance in identifying the most critical -- most

22 critical evidence, frankly, that's what we were looking for.

23 So we collected -- and we had two processes going on. I had a

24 deputy managing Macedonia. I was in Albania moving back and forth. Every

25 day the statements that were collected in the camps were centralised, and

1 the original copies were provided to the Prosecutor's office, with one

2 copy retained, and again, in my custody or in my deputy's custody, the

3 information was put into databases, particularly the location of where the

4 refugee was from, the gender of the refugee, so that we could ensure that

5 we were getting -- collecting as much information as we could from all the

6 municipalities in Kosovo, as well as ensuring that we were getting a

7 gender balance and not just receiving statements from men, which is the

8 traditional custom for Albanians. That information at the end of the NATO

9 air campaign was far too sensitive to take back into Kosovo, so an

10 agreement was reached with the OSCE office in Warsaw, where I had

11 previously worked before deploying to Kosovo, that we would send all of

12 those files, including the refugee statements and the files that had been

13 evacuated to Warsaw, where they were transported by the Polish military.

14 Chain of custody was ensured through this whole time. Refugee statements

15 were numbered, they were kept in binders. A meant Albania, M meant

16 Macedonia. They were organised by municipality, et cetera.

17 Once in Warsaw, I deployed back into Kosovo and re-started the

18 human rights activities using a similar process to document the revenge

19 and the reprisals, which isn't the topic of this particular proceeding.

20 The information, once in Warsaw, a team of six to eight human rights

21 experts was assembled, including my deputy, who was very familiar,

22 obviously, with the whole operation. And they reviewed the information

23 according to a standardised series of classifications, which is also

24 attached to my statement, which goes into more detail of classification,

25 verifying the information. When -- as this report is -- that hopefully

1 will be before you was prepared, statements were corroborated. We had

2 roughly 2800 statements, 1100 from the Albanian -- from Albania, 1600

3 collected in the camps in Macedonia. The numbers reflect the more serious

4 humanitarian situation in Albania, which took a lot of the tasking time.

5 Q. Thank you. Who --

6 JUDGE BONOMY: Before -- could I just clarify a couple of things.

7 The -- if we take the first volume of this report or the first

8 report, as you called it, that deals with 750 complaints, did you say, of

9 serious incidents and -- and they were all prior to the 20th of March?

10 THE WITNESS: That's correct. And -- that's correct.

11 JUDGE BONOMY: Is that right?

12 THE WITNESS: That's correct, sir.

13 JUDGE BONOMY: And then it also deals with refugees' responses.

14 Do they post-date the 20th of March?

15 THE WITNESS: Yes.

16 JUDGE BONOMY: And how far -- how late do they go in volume 1?

17 THE WITNESS: The refugee monitoring plan, our mandate to do that,

18 was authorised two days after the withdrawal, so from March 22nd. The

19 mission redeployed into Kosovo officially bringing in --

20 JUDGE BONOMY: Where does volume 1 end, though, on what date?

21 THE WITNESS: It ends on June 10th, which is the date that KFOR

22 entered Kosovo.

23 JUDGE BONOMY: And you said that you had your own -- you had 75

24 human rights officers there, but they were supplemented by many others

25 with an interest in human rights. Is that what you said?

1 THE WITNESS: That's correct. When we would have a critical

2 incident, either in Kosovo, for example, Racak, other staff would be

3 pulled in to assist with the documentation from the field operation.

4 JUDGE BONOMY: Right. So the many others were --

5 THE WITNESS: Within KVM.

6 JUDGE BONOMY: -- OSCE or KVM people?

7 THE WITNESS: That's correct.

8 JUDGE BONOMY: They're not just miscellaneous helpers?

9 THE WITNESS: I hope not. There was different departments within

10 the KVM, Your Honour.

11 JUDGE BONOMY: Now, the second volume you say covers the period

12 from June to September. Is that right?

13 THE WITNESS: That's correct.

14 JUDGE BONOMY: And what does -- have you covered what it's dealing

15 with so far, or were you confining your remarks so far to the first

16 volume?

17 THE WITNESS: I've confined my remarks to the first volume.

18 JUDGE BONOMY: That's fine. Thank you.

19 Mr. Stamp.

20 MR. STAMP:

21 Q. Since you're on the second volume and since objectivity is an

22 issue which we would like to discuss, what was the second volume about,

23 just briefly?

24 A. The redeployment back into Kosovo saw a shrinking of the human

25 rights division from several hundred in the camps back down to 75 was

1 restarted in the five regional areas and documented acts of violence and

2 crimes being committed against the remaining minority population in

3 Kosovo, which consisted of Kosovo Serbs, Roma, Askali, Turks, Bosniaks, et

4 cetera, often referred to as the period of revenge and reprisals.

5 Q. In other words, the two reports for the relevant period covered

6 and reported upon human rights violations committed against every

7 ethnicity --

8 A. Absolutely, absolutely.

9 Q. I'd like to ask you to comment briefly on the human rights

10 division operational plan which was referred to in your statement.

11 Perhaps it could be brought up. It's P763. And I do this with

12 some trepidation, having worked with e-court system before.

13 The human rights division operational plan of December 1990, was

14 this the basic guidelines that your staff operated under and was it

15 transmitted to all your staff?

16 A. Yes, it was.

17 MR. STAMP: Could we have a look at page 3 of it. And I have been

18 told that I am -- page 3 on the B/C/S version accords with page 3 on the

19 English version.

20 Could we scroll down a little, please. Could we scroll down so I

21 could see all of the paragraph 2.3? Could you scroll up so I could just

22 see paragraph 2.3. Thank you.

23 Q. And these guidelines the OSCE -- and I read now: "The OSCE must

24 strive for impartiality in the area of human rights. Impartiality

25 connotes fairness and justice, and what is to be strived for is absolute

1 objectivity, not unquestioned inaction. The OSCE must not freeze into

2 inaction through a fear of upsetting some, or at times all, of the parties

3 to the conflict. The aggrieved party views silence as passive complicity

4 and partiality. The violators see it as passive acceptance or symbol of

5 OSCE weakness."

6 And at the end of this section, the operational principle: "KVM

7 action in promoting and protecting human rights will be even-handed and

8 consistent so as to be impartial and neutral."

9 Can you comment on that? Is that the functioning guideline for

10 your staff on the collection of the statements which form the basis of the

11 report?

12 A. Yes. And it was a huge portion of the psyche within the human

13 rights department that we be seen to be impartial and independent because

14 we were operating in a highly political environment and a mission that was

15 managing military relations, et cetera.

16 So we -- our division had independence from many of the other

17 departments as far as not having to share information. We -- I reported

18 directly to the head of mission, and we had our freedom to pursue

19 investigations without consultation with any of the political leaders to

20 ensure our independence. So this -- these paragraphs that you're

21 referring to on impartiality were extremely important in the conduct of

22 all the people working in the human rights of the KVM.

23 MR. STAMP: In this same document, could we proceed to page 13?

24 Again, I've been told that the -- it is the same page in the B/C/S.

25 Q. You mentioned training of staff and the importance it was in your

1 mission to have not only adequate staff but staff who were adequately

2 trained. And --

3 MR. STAMP: Could we scroll to paragraph 5.3 of that page.

4 Q. Is it correct that the KVM, as indicated in your statement in

5 evidence, recognised the complexity of the monitoring situation you were

6 in and made adequate arrangements for the training and induction of

7 competent staff for the collection of these statements?

8 A. Yes. The staff were often active police officers in OSCE

9 countries that were immediately seconded to the mission, several hundred,

10 as well as logistical support, IT support. Training was done in

11 Brezovica, which is an area outside of Pristina, that received --

12 everybody going into the KVM went through several days of induction

13 training. They received information on human rights as well as other

14 aspects of the mission's mandate. And then within the human rights

15 division as staff were assigned, we gave them additional training on the

16 use of forms.

17 We didn't have to do too much training on the technical side

18 because most people had human rights experience, policing experience, and

19 had, in fact, worked in conflict situations before. So it was more

20 adapting them to the needs of Kosovo.

21 MR. STAMP: Could we scroll down a little, although I think your

22 answer covers the section that I'm looking for.

23 Q. It's covered. In this document you -- in the annexes to the

24 document, which is a significant part of the document, if not about half,

25 therein you make provisions for additional training of the staff because

1 of the complexity of the situation there.

2 A. Regrettably we weren't in Kosovo long enough to do all of the

3 tasks that were given to us. So the initial trainings focussed on trial

4 monitoring because the administration of justice prior to the evacuation

5 was being used to further violate the human rights of the majority of the

6 population, as well as documenting critical humanitarian law situations,

7 managing issues of dead bodies, killings, things of this nature, and those

8 were the initial trainings that were focussed on. We evacuated too soon

9 before other things could get put into place.

10 Q. Thank you.

11 MR. STAMP: Could we have a look at page 5, that's paragraphs 3

12 and 3.1 at page 5 of that report, of that exhibit.

13 Q. You ensured in your training procedures, it is the evidence in

14 your statement, that your staff or the staff responsible for collecting

15 these statements were made well acquainted, if they had not been

16 acquainted before, with the international humanitarian law norms and

17 standards?

18 A. That's correct. Every staff member received a binder when they

19 reported to our office for assignment after going through Brezovica, and

20 they got a copy of the operational plan, the mandate, the different

21 mandates we discussed earlier today, all of those original documents, as

22 well as tips and how to complete reports, a full manual was given to every

23 staff member and they read them and we had weekly meetings to ensure that

24 everybody was on top of things.

25 It was a very fast-moving environment. A lot of violence going

1 on. The staff were highly motivated and highly compliant with the

2 procedures in place.

3 MR. STAMP: Can you scroll down that page.

4 Q. And we see there some of the international humanitarian and human

5 rights law instruments there indicated.

6 A. That's correct.

7 Q. Now, you say that your mandate arose out of the United Nations

8 resolution and the agreement signed between the FRY and the OSCE. But

9 speaking from your own perspective as a lawyer, lawyer involved in human

10 rights, what ultimately was the purpose of that report, that assimilation

11 of information from the refugees and the preparation of the report?

12 A. There was very little we could do to stop the violations from

13 occurring at the time we were there. All I felt we could really do was to

14 do the best job we could in documenting and bearing witness. This was a

15 very large peacekeeping operation. Kosovo is a fairly small place of less

16 than 2 million people. You can drive from one end to the other in a few

17 hours. 1300 people is a lot. We wanted to document, we wanted to bear

18 witness, and we wanted to do it in a way that provided reliable and

19 impartial information for this Tribunal.

20 Q. Now, just before I move on, just a few mop-up questions.

21 The second report that you did in respect to the allegations of

22 atrocities committed against Serbs and other non-Kosovar Albanian

23 ethnicities, did you use the same methodology?

24 A. Yes, we used the same methodology. Some of the output looks a

25 little different because the second report was prepared in-country while

1 we had other tasks going on and we didn't have the volume of information.

2 The second report is of a more focussed area, as you say, just focussing

3 on really the minority situation and certainly the scale of the violations

4 reported in both reports is quite different.

5 Q. Now, when you returned to Kosovo in June 1999, as your statement

6 indicates, there was some follow-up investigations, and you of course had

7 had the opportunity to make observations from the field.

8 Now, were there any observations from the field upon your return

9 to Kosovo in 1999 that would cause you or that were inconsistent with the

10 conclusions of the report in As Seen, As Told, Part I, or do they confirm

11 the report?

12 JUDGE CHOWHAN: I'm sorry, a bit of a leading question.

13 MR. STAMP: It's in her statement.

14 JUDGE CHOWHAN: No, that is right, but I'm observing. Just to

15 indicate that's the -- it's examination-in-chief. I'm sorry for this,

16 but -- I know it's difficult, all that is too big. But yet we are to

17 observe the rules of evidence. I'm sorry.

18 MR. STAMP: Very well.

19 Q. When you returned to Kosovo in June 1999, did your observations in

20 any way impact on the conclusions that you made in respect to As Seen,

21 As Told, Part I?

22 A. Again, there was no way that we could follow up on all the

23 refugees statements that were collected. The volume was too great, and

24 the situation was still very difficult in Kosovo for the minorities during

25 those months. We saw absolutely nothing but substantiation of the

1 statements that we received from the refugees and their conclusions. And

2 our priority was to try to assist in the identification of where graves

3 were that we had heard from in the refugee statements. So we went back

4 into Kosovo with a list of sites and quickly deployed teams first to those

5 sites to try to secure them for future investigation by the Prosecutor's

6 office, which was standing up at the same time. And the sites that were

7 visited are contained in an annex in the second report because they were

8 done during that phase of the mission.

9 Q. Now, you said it was published in December 1999. Let's just

10 discuss briefly what you mean by publish. Was it publicly disseminated

11 and to what extent was it?

12 A. Absolutely. It was a much-anticipated series of reports. There

13 was high anxiety and expectations about what impact these reports could

14 have. The OSCE had never undertaken such a thing before. A human rights

15 operation had never been able to work and contribute so much during the

16 crimes as they were being committed.

17 The reports were released in Pristina, in Vienna, in Warsaw, in

18 Belgrade all at the same time. Press conferences were conducted, and the

19 findings of these reports were on the front page of the New York Times,

20 the Washington Post, BBC, most European newspapers that weekend. Official

21 copies of the report were delivered to all delegations of the OSCE,

22 including the Federal Republic of Yugoslavia and was given to their

23 official representatives in Belgrade as well.

24 Q. Thank you. It's a very long report, so -- and we can't cover all

25 the details here. Could you just tell us briefly, in our own words, what

1 were the primary conclusions of the report. For example, let's start with

2 the primary reasons for the refugees' departure from Kosovo between --

3 JUDGE BONOMY: Mr. Sepenuk.

4 MR. SEPENUK: Yes, I am going to object to that, Your Honour.

5 The -- that's a conclusion for this Trial Chamber to make. I

6 don't think it's an appropriate question for this witness. That's --

7 she's not qualified as an expert witness, and that's for the Chamber to

8 conclude. That's, indeed, one of the pivotal issues in this case. And

9 for this witness to be expressing her own opinion on that, Your Honour, I

10 really believe is quite improper.

11 JUDGE BONOMY: Mr. Stamp.

12 MR. STAMP: The witness testified about conclusions drawn from the

13 report prepared on the basis of a mandate given to the Kosovo Verification

14 Mission by a United Nations resolution. She's entitled to comment on the

15 work product done under, her testimony, her supervision.

16 JUDGE CHOWHAN: But as a matter of fact, if you introduce the

17 report --

18 MR. STAMP: Yes.

19 JUDGE CHOWHAN: -- and she will read the report --

20 MR. STAMP: Yes.

21 JUDGE CHOWHAN: But once she start commenting on the report, then

22 it becomes -- if the comments are already in the report, why should we

23 take an aversion then? I would say that -- introduce the report. That's

24 the evidence.

25 MR. STAMP: Yes. It's one of the questions here because much of

1 it is covered in her 89(F) statement. We have to draw a sort of balance

2 between try to save time by the use of 89(F) and also public trials. So

3 although the information is in the report, I ask her to summarise some

4 areas of the report just for the purposes of putting on the record --

5 JUDGE CHOWHAN: Oh --

6 MR. STAMP: -- following the trial.

7 JUDGE CHOWHAN: I apologise for interfering. The report is

8 already -- will be on record.

9 MR. STAMP: Yes.

10 JUDGE CHOWHAN: Once it is on record, we will read it; it becomes

11 a public document. However, you can suggest to her -- if I were there I

12 would say: Have you anything else to add? Finished. And let her add but

13 not that you suggest to her to comment and the comments are already in the

14 report itself. That would make a little -- I mean, it's -- can't be

15 received like that.

16 MR. STAMP: I beg your pardon?

17 JUDGE CHOWHAN: It can't be received like that. I'm sorry.

18 JUDGE BONOMY: Do you have anything else to say, on this

19 Mr. Stamp?

20 MR. STAMP: What if I put the question thus -- this way.

21 Q. In respect to the statements you received, did you receive from

22 the on-the-line persons interviewed, any information as to why they left

23 Kosovo in that period and is that reported in As Seen, As Told?

24 A. Yes. The motivations for why the refugees left Kosovo is

25 discussed in detail in the reports.

1 Q. And in respect to the reasons given these by persons, can you

2 comment on that?

3 MR. SEPENUK: I'll object again, Your Honour. He's trying to get,

4 I hate to use this cliche, through the backdoor. He is trying to get a

5 conclusion from this witness that I think is an improper conclusion for

6 her to make.

7 [Trial Chamber confers]

8 JUDGE BONOMY: Mr. Stamp, what's your response to that? It's the

9 same question by a different route.

10 MR. STAMP: Well, it -- the question -- I'm not sure if I got a

11 ruling in respect to the admissibility of the answer. It is my submission

12 that she is --

13 JUDGE BONOMY: What do you mean you're not sure if you got a

14 ruling? You carried on -- you withdrew the question and asked another

15 one. So the Court wasn't asked to rule. You didn't insist, so you're now

16 facing another objection, and I'm looking for your response to that other

17 objection.

18 MR. STAMP: Yes, which I'm -- again, the response is the same.

19 The witness is testifying about a -- the product of her work, work done

20 under her supervision, that was done as a result of a mandate given to her

21 on the United Nations resolution and an agreement between the FRY and

22 the KVM. She -- it is my submission she is, therefore, entitled to

23 comment on --

24 JUDGE CHOWHAN: As a matter of fact, internationally it is known

25 that when something is given in the form of a document, then the document

1 speaks. If there's anything to be argumented which is missing from the

2 document, that has another aspect. But here is a document, is being

3 produced, let her do it. But opinion from the witness, how will that come

4 in this particular case, when she has formally reported and we are taking

5 the report. How will she orally say something beyond that unless there is

6 something missing, which, for coherence, she has to put in. It's just to

7 put it across so that we get wiser by your comments.

8 JUDGE BONOMY: Just give us a moment, then.

9 [Trial Chamber confers]

10 JUDGE BONOMY: Mr. Stamp, the Trial Chamber is not prepared to

11 allow this question because it carries with it the danger of the

12 expression of a personal opinion by the witness. And the report has

13 already been tendered for our consideration in the context of this

14 evidence as a whole. And on the basis of the report, we will reach a

15 conclusion ultimately on whether it should be admitted and, if so, to what

16 extent it should be admitted.

17 So the question is going to add nothing to our knowledge of the

18 overall circumstances, and in these circumstances we invite you to proceed

19 with another question.

20 MR. STAMP: Thank you. That was, in fact, the last area I wanted

21 to cover in chief. As I indicated before, most of the evidence in chief

22 is reflected in the 89 bis package.

23 Thank you very much, Your Honour.

24 JUDGE BONOMY: Thank you.

25 Mr. O'Sullivan.

1 MR. STAMP: Before the cross-examination proceeds, may I make an

2 inquiry as to what the procedure should be. Do we -- should I tender now

3 or should I wait until the end of the cross-examination? There are

4 different practices in different courts. I think that Your Honour ruled

5 that in respect to As Seen, As Told we should wait until we hear the

6 evidence in total.

7 JUDGE BONOMY: Yeah, but --

8 MR. STAMP: -- other documents she referred to.

9 JUDGE BONOMY: All the documents in this case in relation to this

10 witness's evidence will be considered by the Chamber. They're available

11 to us on the system.

12 MR. STAMP: Yes.

13 JUDGE BONOMY: All you need to do is tell us the numbers of all

14 the documents you wish us to read, or consider at least, and we'll

15 consider them.

16 So far as tendering them so that they may be formally admitted,

17 then that can't be done until we have actually -- well, we know that

18 you're tendering them and we will make our ruling under admissibility in

19 due course. You don't need to do any more at this stage.

20 MR. STAMP: Thank you, Your Honour.

21 JUDGE BONOMY: Mr. O'Sullivan.

22 MR. O'SULLIVAN: Your Honour, we'll proceed in the order of the

23 indictment for this witness.

24 JUDGE BONOMY: Okay.

25 MR. O'SULLIVAN: May I proceed?

1 JUDGE BONOMY: Yes, please.

2 Cross-examination by Mr. O'Sullivan:

3 Q. Good afternoon, Ms. Mitchell.

4 A. Good afternoon.

5 Q. We've heard that you were the director of the human rights

6 division of OSCE for the period of April -- sorry, October 1998 to April

7 2000?

8 A. That's correct.

9 THE INTERPRETER: Microphone for the witness, please.

10 MR. O'SULLIVAN:

11 Q. But before the mission was underway -- before the KVM mission got

12 started in October or thereabouts, 1998, you were a legal advisor to OSCE?

13 A. Yes.

14 Q. And you were -- participated in the planning and deployment of

15 this mission?

16 A. Yes.

17 Q. Another member of the KVM mission who testified in the Milosevic

18 case estimated that by February of 1999 there were approximately 1.600

19 people in your mission. Does that sound about right?

20 A. Sounds a little high. I think it would have been closer to about

21 1300, but it depends if you count the national staff.

22 Q. And this witness estimated that approximately half of those people

23 were filling what he called administrative functions, office work, clerk

24 work, not going into the field. Does that sound about right?

25 A. I think it would be more like 30 per cent were probably supporting

1 the field activities.

2 Q. Okay. So of the 70 per cent who went into the field, that -- that

3 number of people -- that would have been a difficult task to collect data

4 and it would have hampered the performance of the KVM, wouldn't it?

5 A. For a hundred per cent to be deployed?

6 Q. No, for 70 per cent of the --

7 A. No, that's about average.

8 Q. Well, the person I'm referring to, and I want to put this to you,

9 who testified in the Milosevic trial as a man by the name of Roland Keith

10 who had spent 32 years in the Canadian military, and he was assigned as a

11 verifier. And he had this to say in his evidence.

12 He said: "I would hazard a guess that only half of us were sent

13 to the field. The other half were doing headquarters-type work,

14 administrative work, and directional work, but our ability, and I stress

15 this very, very strongly, our inability to monitor the KVM at the field

16 level was apparent to me from day one."

17 Now, is there any reason why we shouldn't accept what Mr. Keith

18 said about his work in the field?

19 A. That's Mr. Keith's opinion. I do not agree with it.

20 Q. Well, were you in the field?

21 A. Yes, I was.

22 Q. And what was the difference between what Mr. Keith has to say?

23 A. I don't know what department Mr. Keith was in. People were

24 assigned to different departments at different times. There were hundreds

25 of people going in and out of taskings, moving around to cover hot spots.

1 It was a very robust field operation with more than 40 field locations

2 established. So I think it was intensively covering the field.

3 Q. I think in one of your statements you described, and I think

4 you've said it here as well, that it was a fast-moving mission and there

5 were logistical challenges for all staff. Is that what you're saying?

6 A. Absolutely.

7 Q. Now, you were asked a question about the training -- or the

8 initial training the verifiers got. And I think it was probably -- it's

9 fair to say having looked through your statement that a lot of the

10 verifiers got what you called on-the-job training?

11 A. Yes.

12 Q. And would you agree with me that on-the-job training is sporadic

13 and haphazard?

14 A. No, I would not, because these individuals came with the skill set

15 necessary to adapt very quickly. Many of them had law enforcement,

16 military, human rights backgrounds working in conflict situations.

17 MR. O'SULLIVAN: I wonder if the witness can be shown P763,

18 please. Page 22 of that exhibit, please. And please bear with me because

19 I want to go down -- would the ERN help you? I'm asking the court

20 officer. The ERN is K0227483. That's the page I want within that

21 document. 7483.

22 [Trial Chamber and registrar confer]

23 JUDGE BONOMY: I'm told that is page 22, Mr. O'Sullivan.

24 MR. O'SULLIVAN: Well, then it must be the annex to it.

25 Is there an an -- perhaps the Prosecution can assist, but I'm

1 looking for the draft annex 1 to that document.

2 MR. STAMP: [Microphone not activated].

3 MR. O'SULLIVAN: That's the right document, yes.

4 JUDGE BONOMY: Is that it?

5 MR. O'SULLIVAN: That's the document.

6 JUDGE BONOMY: Thank you.

7 MR. O'SULLIVAN: Can we go to the second page of that document and

8 scroll down.

9 JUDGE BONOMY: I think he wants to go to the second page.

10 MR. O'SULLIVAN: Second page. Okay. And scroll down a bit, just

11 a little more, little more, little more. All right.

12 The second full paragraph, it says: "In addition, the relatively

13 short tour of duty of most KVM members (six months for many) makes it

14 essential that training occur quickly and is not left to the haphazard and

15 often slow dynamics of the on-the-job training."

16 And I put it to you that your document recognises that the

17 on-the-job training is haphazard.

18 A. Yes.

19 Q. And, in fact, most of the verifiers received on-the-job training.

20 You've told us that?

21 A. I believe I also said that most verifiers came with the skill set

22 necessary to rapidly adapt to the situation and the training they received

23 was how to fulfil the procedures, the mandate of the KVM, and that portion

24 it was, yes, mostly on the job.

25 Q. Well, you said some of them but not all of them did, come with the

1 skills and the training. Isn't that correct?

2 A. Most of them. I mean, it was a minority that were not in

3 position. And usually we transferred them to other departments. Sort of

4 the normal personnel management issues.

5 Q. And you said some of the trained persons were, in fact, former

6 police officers, military people, that sort of person, right?

7 A. And human rights people, yes.

8 Q. And the ones with experience, you would agree, would be in a

9 position to evaluate perhaps those that were not experienced and properly

10 trained. Wouldn't you agree with that?

11 A. Assuming they knew the context in which to make the evaluation,

12 yes.

13 Q. All right. Well, I'd like to read a short passage, Your Honour,

14 to the witness. This is Mr. Keith speaking, the man who spent 32 years in

15 the Canadian military. He was asked by the Presiding Judge, Judge

16 Robinson, whether verifiers were sent out into the field with a training

17 programme, and he was asked whether he could answer that question.

18 And Mr. Keith said this: "Yes, I can, Your Honour, and I would be

19 pleased to. Upon arrival it was mostly administrative and technical

20 training, the competency to handle a Peugeot four-wheel drive sport

21 utility vehicle competently on the roads of Kosovo was taken. I must say

22 it was pretty rudimentary, but everyone did have to pass a test. The

23 ability to operate a radio was provided. The ability to use a GPS, global

24 positioning sensor, and some of the briefings of what was taking place in

25 the province by various high officials from within the mission was

1 provided to people to try to give some sense of what the situation was in

2 the province. And course, to a very limited degree, if I may, direction

3 on what to do. But in my humble opinion, and Mr. Nice in questioning my

4 credibility due to my limited rank -- rise in rank, in my humble opinion,

5 it was very rudimentary and at no time was anybody given, and certainly I

6 wasn't, information of what we were looking at, what we may be looking

7 out. No booklets were given to and were accessible to people of what the

8 organisation of the VJ was and the organisation of the MUP was, but my --

9 Mr. Nice referred to Staff College, staff training. This was -- this was

10 certainly not a staff document."

11 Then Judge Robinson asks: "Was there any training in identifying

12 the matters that ought to be reported on?

13 "A. No, Your Honour, I could honestly say other than: Report

14 what you see."

15 Now, is there any reason to question and not accept what Mr. Keith

16 said?

17 A. Well, I wouldn't agree with it.

18 JUDGE BONOMY: Can we have a transcript page number for that

19 reference, and for the earlier one I think?

20 MR. O'SULLIVAN: Yes. My apology for not saying that at the

21 outset. This last portion is -- begins on page 32800 and continues on to

22 the next page, 32801. And the first passage is page 32825, both on the

23 Milosevic proceedings.

24 JUDGE BONOMY: And can I ask you what Mr. Keith 's particular

25 duties were in the KVM?

1 MR. O'SULLIVAN: Well, he -- he led -- he led a small -- or a

2 mission. He was a verifier.

3 JUDGE BONOMY: But the witness has been dealing with human

4 rights -- people who are checking on human rights violations. There were

5 verifiers doing other things, for example, movement -- troop movements and

6 so on. Do we know what his responsibility was? We know he was military,

7 and therefore it may be that he was involved in something other than human

8 rights observations. I don't know.

9 MR. O'SULLIVAN: I'll have to check that, Your Honour.

10 MR. STAMP: Can I just ask in addition to that if we could have

11 the date of the testimony. We are trying to find it, but I would like

12 to --

13 MR. O'SULLIVAN: The 14th of September, 2004.

14 MR. STAMP: Thank you.

15 MR. O'SULLIVAN:

16 Q. But the training that Mr. Keith described is no greater than

17 verifiers receive, is it?

18 A. I would describe those more as briefings on the communication and

19 security protocols in place for the mission, which included ensuring that

20 people knew how to manage the vehicles, the equipment, things of this

21 nature. It's very standard.

22 Q. But the inexperienced people, whether they're looking at military

23 movements or alleged human rights abuses, if you're not trained in looking

24 at what you're seeing, there's no way of knowing exactly how to interpret

25 what you're seeing. Wouldn't you agree?

1 A. I think the question's a little confusing, if I may say, because

2 we were there to bear witness and to report and to verify allegations.

3 One needs a skill set of proper -- knowing how to do proper documentation,

4 how to record things in an impartial and reliable way; and for those

5 purposes, the staffs did have the skill set plus the additional experience

6 of working in a highly volatile and insecure physical environment.

7 Q. And in that environment your ability to move around was quite

8 limited, wasn't it?

9 A. It would depend. We had movement, for the most part, around

10 Kosovo. When incidents were occurring, then the VJ and the Serbian

11 security forces would prevent us from entering into those areas. So

12 freedom of movement was very much a day-to-day, incident-to-incident,

13 zone-to-zone type of environment.

14 Q. So is it your position here today that your movement was not

15 restricted the whole time you were in Kosovo?

16 A. I believe I just answered that question, that for the most part we

17 had movement on the main roads. There were check-points. We observed the

18 check-points. We often had to negotiate access through the check-points.

19 There were situations where, yes, we were denied access by the security

20 forces to incidents. So I would say that freedom of movement was as

21 challenging in the Kosovo armed conflict situation as it is in any

22 situation like that.

23 Q. I'm not disputing that for a moment. But your movements were

24 restricted to main roads. You didn't go off the beaten tracks?

25 A. Oh, that's not true. No, we did go off the beaten tracks. We

1 tried to get access to very remote locations and villages. Many of the

2 roads in Kosovo are dirt roads, at least at time.

3 Q. But you tried and did not succeed?

4 A. Case by case.

5 Q. Now, you said that -- you testified -- you testified in the

6 Milosevic trial. You said that during the war, when you were in Albania

7 and Macedonia, you had a total of 200 staff members, including

8 interpreters and locals. Is that right?

9 MR. STAMP: Again, if we had the transcript page and date.

10 MR. O'SULLIVAN: Fine. It's page 7545.

11 Q. I'll read -- in fact, I'll just read what you said in the

12 Milosevic trial, page 7545.

13 "Well, we had at full strength 200 staff members dispersed in

14 Albania and in Macedonia that included our national colleagues,

15 interpreters, et cetera. 75 of those staff were deployed in Albania,

16 which was under a horrendous humanitarian catastrophe because of the

17 influx of so many refugees that came in what seemed to be controlled

18 spurts of 50.000 a day for a few days, et cetera. So the 200 working a

19 day is a little deceptive. The mission was going through a phase-down at

20 the time, so it took a little while to get organised."

21 That's correct, isn't it?

22 A. Yes, it is.

23 MR. O'SULLIVAN: No further questions, Your Honour.

24 JUDGE BONOMY: Thank you, Mr. O'Sullivan.

25 Mr. Fila, do you have any questions for this witness?

1 MR. FILA: [Interpretation] Your Honours, I do have several

2 questions, but it's quite late in the day and we only have five minutes to

3 go. I'm not sure if I should start now. I certainly can if you want me

4 to. There's no problem there.

5 JUDGE BONOMY: I thought we would get more value for money in five

6 minutes from you than from anyone else, Mr. Fila.

7 MR. FILA: Okay.

8 [Interpretation] That's fine, that's fine. My apologies.

9 [Trial Chamber confers]

10 JUDGE BONOMY: Carry on, Mr. Fila. Let's hear the beginning of

11 your cross-examination.

12 Cross-examination by Mr. Fila:

13 Q. [Interpretation] Mrs. Mitchell, I read your statement. It says

14 that you're in charge of systematic gathering of data on human rights

15 violations. At first you were there -- you were there throughout, but the

16 first period before people started leaving Kosovo. When you say "human

17 rights violations," that applies equally to all ethnic groups, doesn't it,

18 or at least that's what -- when I say "human rights violations," you take

19 that to include all the ethnic groups there, don't you?

20 A. [Previous translation continues] ...

21 Q. In this first period and up to the 20th of March, that's what

22 we're talking about, which is when you left Kosovo, you withdrew. What I

23 want to know is after the 20th of March, was there a TV appearance for you

24 in Montenegro or not --

25 THE INTERPRETER: The interpreter's correction.

1 MR. FILA: [Interpretation]

2 Q. Was there a mission in Montenegro, because some of the refugees

3 went to Montenegro?

4 A. The mandate for our particular operation that I've described today

5 did not extend to Montenegro, no, sir.

6 Q. Let me rephrase this. Before you arrived there, did your mission

7 entail any sort of training in terms of the historical background for

8 Kosovo and Metohija; for example, did you study the various reasons for

9 various cases where exodus occurred in Kosovo throughout the 19th and 20th

10 century? Did you study the reasons behind these? Did you know about all

11 of these or was that simply not part of your background training?

12 A. I had worked in the Balkans for more than ten years and I was

13 aware of the history, sir.

14 Q. That's precisely the reason I'm asking because you did say that at

15 the outset, didn't you. I wanted to lead you up to that again.

16 What about that situation in Kosovo that you found when you came

17 there? Was this something that only started then, whereas earlier on

18 everything used to be all right, or is there a whole history behind this

19 of trends and even growing hatred? The suffering, the casualties, the

20 hatred, all the different cases where there was an exodus, before you came

21 there, that's what I mean?

22 MR. STAMP: I'm sorry --

23 THE WITNESS: I'm a little unclear how to answer the question, but

24 yes, this was a deteriorating security situation that began in full

25 earnest as far back as 1989 and only got worse. I don't know how far back

1 you want me to go in history.

2 MR. FILA: [Interpretation]

3 Q. As far back as you can; that's how far I want you to go. In terms

4 of your knowledge, you referred to the last ten years, the ten years

5 before your arrival, was everything fine in Kosovo in those ten years?

6 Because what comes across is that everything began in 1999 or back in 1990

7 and up to that point everything was just pure gravy.

8 Do you know the history of this entire evolving trend, if I may

9 call it that, throughout the 20th century?

10 JUDGE BONOMY: I wonder if you could help me, Mr. Fila, with the

11 relevance of that question and the relevance of the witness's knowledge of

12 the -- the whole developing trend throughout the 20th century.

13 MR. FILA: [Interpretation] Thank you very much. The relevance is

14 I believe we have to establish whether the whole thing came about, the

15 lack of trust, the exodus, everything that occurred in 1998, which is what

16 the indictment suggests, or were there cases that were familiar from

17 before but only escalating now? Because there's no logic in that. The

18 joint criminal enterprise would imply that up to 1998 everybody lived in

19 general happiness, and then suddenly something erupted between these

20 people that marred their relations. That's not how it was, so that's what

21 I'm trying to get at.

22 JUDGE BONOMY: I understand entirely the point that you're trying

23 to make, and there may be -- it may be appropriate, to some extent, to

24 explore historical and political contexts in this trial. But this witness

25 is dealing with whether or not there were human rights violations, and it

1 seems to me that history and political background don't have a lot to do

2 with the question: Was this particular conduct a violation of human

3 rights? Was it an atrocity? Was it a behaviour that was criminal? So I

4 doubt very much if exploring her background knowledge of the Balkan

5 history is actually relevant to the evidence she's giving.

6 Now, on that note, we will adjourn. You can think about how you

7 might approach the matter in light of that expression of view, and we will

8 resume the case tomorrow at 2.15, when your cross-examination of

9 Ms. Mitchell will continue.

10 You know the routine by now, Ms. Mitchell, since we've heard that

11 you've been here before, and no doubt had your evidence interrupted

12 before, that you shouldn't be in discussion with anybody overnight about

13 the evidence that you're giving here.

14 THE WITNESS: Yes, Your Honour. Thank you.

15 JUDGE BONOMY: We'll see you tomorrow at 2.15.

16 --- Whereupon the hearing adjourned at 5.00 p.m.,

17 to be reconvened on Tuesday, the 11th day of

18 July, 2006, at 2.15 p.m.

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