1 Thursday, 3 May 2007

2 [Rule 98 bis Hearing]

3 [Open session]

4 [The accused entered court]

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

6 JUDGE BONOMY: Mr. Bakrac.

7 MR. BAKRAC: [Interpretation] Thank you, Your Honour. Good morning

8 to everyone here in the courtroom.

9 Ten months after the Prosecution started its case, the Defence

10 under Rule 98 bis is now in a situation to give its own analysis, its own

11 view, of the evidence adduced so far and to state itself views as to what

12 it considered to have been proved and what has not been proved regarding

13 the acts that the accused have been charged with, and in particular of

14 course General Lazarevic.

15 In the indictment, the Prosecution has charged my client,

16 General Lazarevic, and the other co-accused in this case the commission of

17 crimes listed in Counts 1 through 5 of the indictment and then these

18 counts were specified in greater detail in paragraphs 70 through 77 of the

19 indictment. For the crimes listed in Counts 1 through 5 of the

20 indictment, it is the Prosecution's view that the accused

21 General Lazarevic is responsible under Article 7(1) and 7(3) of the

22 Statute.

23 In the pre-trial brief, the Prosecution offered evidence that

24 he -- that it intended to call with regard to each of the accused in the

25 course of its case, that this evidence was supposed to support the

1 allegations in the indictment. General Lazarevic's Defence finds that the

2 larger portion of the evidence that the Prosecution based its indictment

3 on has not been called at all. In fact, a major portion of the evidence

4 has not been admitted and the evidence that was adduced before this

5 Trial Chamber is such that it does not support the allegations in the

6 indictment, in particular, the evidence that is supposed to support

7 individual criminal responsibility of General Lazarevic.

8 That is why in the course of our oral arguments we will focus on

9 the evidence that pertains to the individual criminal responsibility of

10 our client called by the Prosecution in the course of its case. We would

11 like to add here very briefly that in the spirit of Rule 98 bis, in our

12 analysis of the evidence tendered and admitted into the record, we would

13 like to make our contribution and assist the Trial Chamber to make a

14 decision that would reflect the interests of justice and the demands for a

15 fair and expeditious and economical trial. As my colleagues have noted

16 before, in our view an economical trial is a trial where we do not have to

17 challenge the -- what the Prosecution has failed to prove. We will first

18 say something about General Lazarevic's responsibility under Article 7(1)

19 of the Statute.

20 We are convinced that, in its case, the Prosecution has failed to

21 prove beyond reasonable doubt General Lazarevic's responsible for the

22 crimes listed in the indictment on the basis of his responsibility under

23 Article 7(1) of the Statute. The Prosecution alleges that each of the

24 accused, including our client, is responsible under Article 7(1) for his

25 contribution to the implementation of the joint criminal enterprise, whose

1 purpose it was to modify the ethnic balance in Kosovo by criminal means,

2 in order to ensure further Serbian control over the province.

3 The Defence contends that even though the Prosecution is relying

4 both on the so-called basic concept of the JCE and, alternatively, on the

5 so-called broader concept of the JCE, has failed to prove beyond

6 reasonable doubt that all the requisite elements established by the

7 jurisprudence of this Tribunal in fact exist for any of those two

8 concepts.

9 We would first like to note to you, Your Honours, that the

10 Prosecution failed to prove the existence of any plan or design to change

11 the ethnic balance in Kosovo by criminal means, and in particular it has

12 failed to prove that this plan came into existence at the latest in

13 October 1998 and the Prosecution failed to prove the existence of any plan

14 aimed against the civilian Albanian population. When the Defence says

15 that the Prosecution has failed to prove beyond reasonable doubt the

16 existence of such a plan, it relies on the evidence provided by several

17 Prosecution witnesses whose -- and this evidence, to say the least, brings

18 into doubt such allegations made by the Prosecution.

19 So to give you an example. The first Prosecution witness,

20 high-ranking OSCE official Sandra Mitchell, claims in her testimony that

21 until the 20th of March, 1999, she was the acting member of the OSCE

22 mission in Kosovo and that the plan for monitoring the refugees was made

23 only on the 22nd of March, 1999, and the reason for this, as she says, is

24 because they did not have a refugee problem before that. That's at page

25 588 of the transcript, lines 1 through 3. It is quite obvious that when

1 the OSCE mission and the Kosovo Verification Mission left the province of

2 Kosovo and when the -- when NATO announced openly that within a few hours

3 it would start an intensive air-strike campaign against the FRY, it was

4 quite inevitable for the civilian population to leave the province en

5 masse. In light of the fact that until that moment there had been no

6 major movements of population out of the borders of the FRY - or at least

7 the Prosecution failed to adduce any evidence to that effect - any

8 reasonable trier of fact would be able to see the causal link between the

9 impending NATO air-strikes and a possible ground offensive and the

10 departure of the civilians from the territory of Kosovo.

11 After all, there was a large movement or exodus of people at that

12 moment in the entire territory of the Republic of Serbia. The Defence

13 does not challenge the claim that within the province of Kosovo there were

14 some instances of internal displacement of civilian population, but what

15 it does challenge is the claim that such transfers of population were

16 forcible, caused by expulsions or any other form of duress exercised or

17 forced -- exercised by the forces of the FRY and Serbia. The Prosecution

18 has failed to prove that the internal displacement of Albanian civilians

19 within the province of Kosovo were a result of violent activities on the

20 part of the FRY and Serbian forces targeting the civilian population with

21 the aim of implementing the above-mentioned plan.

22 So apart from the cases of legitimate transfer of population

23 caused by combat activities, there is a lot of evidence establishing the

24 existence of a KLA plan to ascribe such transfers to alleged violent

25 activities of the FRY and Serbia and we will now list some of the major

1 evidence to support this claim.

2 One of the key Prosecution witnesses, the Chief of Main Staff of

3 the KLA, Bislim Zyrapi, quite unequivocally stated in his evidence that

4 the civilian Albanian population had withdrawn together with the KLA and

5 that this had been the usual practice, purportedly for security reasons

6 because of the risks inherent in the combat between the KLA and the

7 Serbian forces. That's at pages 5991, lines 17 through 25; page 5992,

8 lines 1 through 15; page 5997; and 5998, lines 1 through 23 of the

9 transcript.

10 It is the Defence's view - and it seems to us that the honourable

11 Trial Chamber has also noted this - that it is quite obvious that the risk

12 for the civilian population is far greater if it is moving together with

13 the KLA troops, that's at page 6003, lines 7 through 23. So these are the

14 responses to questions asked by the Trial Chamber.

15 Furthermore, a specific order issued by Bislim Zyrapi on the 1st

16 of April, 1999, is in the record in this case. In his capacity as Chief

17 of Main Staff of the KLA he is ordering the movement of Albanian civilians

18 from the village of Belanica. That's Prosecution Exhibit P2457.

19 Another major Prosecution witness, deputy head of mission of the

20 Kosovo Verification Mission, General Drewienkiewicz, in his evidence said

21 something about the Prosecution Exhibit P680, where it says that in the

22 Djeneral Jankovic region the KLA ordered the civilian population to move

23 out, which they actually did, by the 27th of February, 1999, and in his

24 view this document was accurate and credible.

25 Jan Kickert, in his evidence -- I have to apologise. Let me just

1 give you a reference for the previous quote. That's at page 7932, lines 2

2 through 21.

3 Jan Kickert gives evidence along the same lines. In the relevant

4 period he was the secretary of the Austrian embassy in Belgrade. He also

5 established a direct link between the KLA and the internal displacements

6 of the population. That's at page 11222, lines 1 through 17.

7 The documentary evidence and the oral evidence of major

8 Prosecution witnesses lead us to say that there is reasonable doubt, to

9 say the least, about the existence of a plan to internally displace or

10 deport the Albanian civilian population by violent and criminal means. If

11 the Trial Chamber, despite the evidence referred to above, should find

12 that the Prosecution did prove beyond reasonable doubt the existence of

13 such a plan, then we say that the Prosecution still failed to prove that

14 the Yugoslav Army and General Lazarevic in particular had any knowledge of

15 such a plan and that he participated in it consciously and deliberately.

16 A number of Prosecution witnesses, including high-ranking foreign

17 officials of the OSCE and the Kosovo Verification Mission, support the

18 Defence argument regarding those allegations.

19 Because of the nature of the 98 bis motion, what it should do, we

20 will now move on to say something about some of the evidence that has been

21 adduced.

22 Colonel Crosland, the representative of the UK-KDOM, spoke about

23 his personal experience and his visits to the VJ barracks throughout

24 Kosovo from October 1998 onwards, and he says that the VJ carried out its

25 regular tasks and that their mission had no objections. That's at page

1 9955, lines 3 through 10.

2 Furthermore, Prosecution witness General Maisonneuve, the head of

3 the region centre 1 of the Kosovo Verification Mission that covered the

4 municipalities of Prizren, Suva Reka, and Orahovac, when he speaks about

5 the isolated incident at the Pastrik Mountain on the 14th of December,

6 1998, and also when he speaks about the conduct of the VJ troops and the

7 troops of the 549 Motorised Brigade troops in general terms, because this

8 unit was active in his centre -- in the zone that was covered by his

9 centre, stresses that the VJ's conduct was humane and professional. He

10 notes that the VJ carried out its operations in a professional manner and

11 did not enter into the villages at all. That's at pages 11131, lines 8

12 through 24; 11132 [Realtime transcript read in error "11134"], lines 5

13 through 25; and 11133 [Realtime transcript read in error "111"], line 1.

14 Your Honours, there is an error in the transcript. It's not 1134 but 1132

15 and after that 33.

16 JUDGE BONOMY: Thank you.

17 MR. BAKRAC: [Interpretation] And excuse me, please, but just it

18 might be an error in the transcript, it's pages 11131, lines 8 to 24,

19 11132, lines 4 to 25, and 11133, line 1.

20 This witness also goes on to say on page 11152, lines 5 to 18,

21 that combat groups of the VJ in Kosovo will be deployed in compliance with

22 the October agreement and that he was at liberty to visit all of these

23 units and had permission to do so. Witness General Klaus Naumann, the

24 chair of the NATO military committee, also spoke about the professional

25 approach of the VJ in activities outside of barracks as well as its

1 professional and correct cooperation with the OSCE mission in the period

2 from January to February 1999. Page 8357, lines 12 to 15.

3 Furthermore, Witness Colonel Richard Ciaglinski, a member of the

4 Kosovo Verification Mission, also evaluated the behaviour of the Army of

5 Yugoslavia in Kosovo, both in specific incidents and in general. As

6 regards the specific incident on the Pristina-Podujevo road when a colonel

7 of the VJ was killed in an ambush, and this witness was questioned about

8 this incident, both during direct examination, cross-examination, and

9 re-direct, stated quite decidedly that he was a witness to this operation

10 from the beginning to end, that the VJ carried out this operation in a

11 professional manner, that he saw nothing irregular, and that there was no

12 retribution, destruction or killing.

13 Your Honours, I can offer you a number of references for what I

14 have just said as follows. Page 6847, lines 13 to 25; page 6848, lines 1

15 to 4; page 6908, lines 19 to 23; page 6927, lines 17 to 25; page 6928,

16 lines 1 to 2; and finally Exhibit P2488, page 9, paragraph 4.

17 This same witness also spoke about his visit to VJ units in Junik

18 on the 24th of January, 1999, when he had occasion to talk, as he himself

19 testified before this Court, with local ethnic Albanians who told him on

20 that occasion that they did not have any problems whatsoever with members

21 of the VJ. That's on page 6896, lines 6 to 13.

22 As regards his general assessment of the behaviour of the VJ, this

23 witness added that he had occasion to see numerous reports drawn up by

24 members of his mission and that there were no complaints about the

25 behaviour of the VJ in any of them. That's page 6894, lines 23 to 25;

1 page 6895, lines 1 to 2.

2 We cannot but observe that Witness Ciaglinski, when referring to

3 the actions of the VJ in the border belt, asserted that these actions also

4 were carried out by the VJ in a correct manner and without any problems.

5 That's page 6910, lines 10 to 22. 10 to 22, Your Honours.

6 And finally, in the transcript on pages 6929, lines 18 to 25; and

7 page 6930, lines 1 to 3, Witness Ciaglinski, especially emphasised that

8 the VJ up to the moment when he left Kosovo behaved correctly and did not

9 use undue force or excessive force.

10 Prosecution Witness K79, in his testimony, first on page 9721,

11 line 12 to 20, mentioned a specific incident in the village of Ljubizda

12 where he was an eye-witness who saw the VJ return civilians to their

13 homes, and then in his further testimony on page 9728, lines 7 to 13, he

14 confirmed that members of the VJ in his area behaved professionally in

15 every respect. This same witness during re-direct, when asked by the

16 Prosecutor whether he based his knowledge about the arrest of VJ soldiers

17 on an example that he saw replied that apart from this one incident he had

18 also heard of others.

19 The Defence -- I do apologise, Your Honours. The reference for

20 what I have just said is page 9729, lines 5 to 10.

21 The Defence cannot but analyse the testimony of Shaun Byrnes, the

22 chief of the US-KDOM when he spoke about the cooperation of members of the

23 VJ with the KDOM mission and assessed it as a exceptionally professional

24 and positive. Page 12144, lines 5 to 25. The Defence wishes to point out

25 that this witness, when testifying before this Tribunal and referring to

1 the period from August to September 1998, concluded quite clearly that the

2 VJ did not participate in the torching of villages, destruction of crops,

3 killing of livestock, or similar crimes. Page 12150, lines 5 to 12.

4 Furthermore, Witness Shaun Byrnes, referring to a later period of

5 time, that is, the period throughout 1999, also pointed out that he never

6 saw the VJ involved in the perpetration of any such crimes, nor did any of

7 his teams ever report any involvement by the VJ in the perpetration of

8 such crimes. That's page 12150, lines 15 to 17.

9 Witness Shaun Byrnes goes on to say in his testimony that he

10 learned from Kosovo Albanians working in his mission and from Albanians

11 belonging to the Kosovo political elite and who were refugees from Kosovo,

12 and he learned this later on that the VJ, even after NATO air-strikes

13 began, treated them with respect. He mentioned a specific incident where

14 the VJ intervened to save the lives of two Kosovo Albanians who were

15 employed by the US-KDOM. That's on page 12199, lines 18 to 25.

16 The Defence is convinced that the Prosecution will attempt to

17 counter this testimony with other views of the role of VJ in the relevant

18 period, but the quantity and probative value of this testimony is such

19 that no reasonable trier of fact could reach the conclusion that it has

20 been proved by the Prosecution beyond reasonable doubt that the VJ

21 participated in the alleged joint criminal enterprise.

22 The Defence also submits that the Prosecution failed to prove in

23 its case that General Lazarevic was a member of the alleged JCE and that

24 by his actions he consciously contributed to the implementation of such a

25 plan or enterprise, or that he had an intent either by action or omission

1 to contribute to the implementation of such a plan.

2 The Prosecution has failed to prove that General Lazarevic was

3 aware that there was an attack aimed at the civilian population and that

4 his actions were an integral part of that attack. As it has remained

5 unproved that General Lazarevic was aware of the existence of a JCE aimed

6 at the civilian population or that he had any intent of participating in

7 such a plan, he cannot be held responsible for those actions concerning

8 which no agreement has been reached in a JCE and which might be a natural

9 and predictable consequence of a possible plan so that there is no mens

10 rea in this case, which is -- which must be shown to exist in order to

11 make a finding of responsibility under the third basis of JCE.

12 We now wish, on the basis of certain examples from the evidence,

13 to show that General Lazarevic neither ordered nor planned nor instigated

14 anyone to commit a crime. There is also not a single piece of evidence

15 that would indicate beyond reasonable doubt that the accused

16 General Lazarevic aided and abetted the perpetration of crimes, those

17 crimes with which he's charged in Counts 1 to 5 of the indictment.

18 It has not been proved in relation to any of these modes of

19 participation in a JCE that the accused General Lazarevic had either the

20 actus reus or the mens rea required.

21 The allegations, or rather, the statements in the indictment, in

22 paragraph 309 in the pre-trial brief of the Prosecution, that

23 General Lazarevic, starting from 1999 up to the 10th of June was the

24 commander of the Pristina Corps are correct and there is no doubt about

25 this. It is also not in dispute -- in other words, the fact that he was

1 the commander of the Pristina Corps is not in dispute. What is in dispute

2 is that based on this fact alone his responsibility can be established.

3 This fact on its own is not sufficient to make a finding of criminal

4 responsibility, either under Article 7(1) or Article 7(3) of the Statute.

5 In its pre-trial brief the Prosecution suggests that General Lazarevic

6 contributed to the implementation of the plan through his role in the

7 Joint Command, but the Prosecution has not succeeded in proving what the

8 so-called Joint Command actually was. The Defence asserts and submits

9 that General Lazarevic was never a member of the alleged Joint Command,

10 and this is based on evidence tendered by the Prosecution in this case.

11 Thus, Exhibit P1468, which are the minutes from meetings of the

12 so-called Joint Command, starting from the 22nd of July, 1998, until the

13 30th of October, 1998, and these minutes are from more than 60 meetings,

14 shows when these minutes are analysed that it can clearly be concluded

15 that there was no attack, no plan, no action aimed against the civilian

16 population.

17 When you look at one of the minutes from these meetings dated the

18 23rd of August, 1998, it can be clearly concluded that General Lazarevic

19 was not a member of the so-called Joint Command because you can read who

20 is present and who is absent and then it is added "and General Lazarevic."

21 So a logic, or rather, "Colonel Lazarevic." It can clearly be concluded

22 from this that General Lazarevic attended the meeting but was not a member

23 of any sort of command. And we submit that it was not a command actually

24 in the true sense of the word.

25 General Lazarevic up to January 1999 was the Chief of Staff of the

1 Pristina Corps and he spent this time at the forward command post in

2 Djakovica. Neither in 1998 nor in the following year, 1999, when he

3 became the commander of the Pristina Corps did he ever attend meetings of

4 high-ranking political, military, or security officials in Belgrade where

5 the alleged joint criminal enterprise is said to have come into existence

6 and was implemented through the Joint Command for Kosovo.

7 An analysis of Exhibit P2166 leads to this conclusion quite

8 clearly and unambiguously. The Prosecution simply cannot claim the

9 opposite because there is not a single piece of evidence to support this.

10 Numerous witnesses here have been asked whether General Lazarevic

11 was a member of some sort of Joint Command and not a single one said that

12 he was.

13 The Defence contends that the so-called Joint Command, regardless

14 of its title, did not have any command function and it did not in any way

15 violate the usual and legal chain of command, both in the MUP and in the

16 VJ. After all, Prosecution Witness Ljubinko Cvetic when asked explicitly

17 by the Presiding Judge whether after the establishment of the Joint

18 Command, the chain of command, as it was envisaged by law, continued to

19 exist in the VJ and in MUP, he replied quite explicitly and clearly that

20 it did continue to exist. That's at page 8123, lines 6 to 12.

21 Another piece of evidence to support this is the fact that there

22 was no chain of command within the Joint Command itself, that there was no

23 commander, no chief of staff, no other organ that must exist in any

24 command and the Joint Command itself did not have its command post; there

25 was no usual reporting system established that has to exist where

1 operative or combat reports must be submitted. All those facts not only

2 undermine the Prosecution argument that there was such a thing as a Joint

3 Command, but, in fact, support the claims by the Defence that it had no

4 command function and that this was not, in fact, a body where the powers

5 and authorities of military police and political structures came together.

6 The Prosecution claims that General Lazarevic participated in the

7 joint criminal enterprise primarily by using his position to plan and

8 order operations in which crimes were committed, crimes that he's charged

9 with in the indictment, and that he contributed to this enterprise with

10 intent to commit those crimes. The Prosecution has failed to prove this

11 allegation beyond reasonable doubt and for a very simple reason: It

12 failed to present any order issued by General Lazarevic in his capacity as

13 the PRK commander that would support this allegation.

14 If we want to analyse the orders that General Lazarevic issued as

15 the commander of the Pristina Corps admitted into evidence in this case,

16 it is possible to make an unequivocal and clear conclusion that their

17 purpose is solely to engage PRK units in combat against the KLA and to

18 protect personnel against NATO air-strikes.

19 In his order dated the 25th of May, 1999, admitted into evidence

20 as P2014 - one of the key Prosecution witnesses commented and evaluated

21 this order, this was General Vasiljevic - General Lazarevic orders, or

22 rather, prohibits uncontrolled entry of the troops into inhabited areas,

23 prohibits any plunder of property - that's under paragraph 9. And in

24 paragraph 11, moral and psychological support, he explicitly orders that

25 civilian population is to be treated in a proper and humane manner, and

1 that the provisions of international law of war are to be respected

2 consistently in all situations. So this is what is -- what

3 General Lazarevic says in his order, an order that was tendered into

4 evidence by the Prosecution in this case.

5 We have a same situation with an order issued by General Lazarevic

6 as the PRK commander, admitted into evidence as P2029, on the engagement

7 of the Pristina Corps forces. In addition to regular combat tasks, he

8 specifically orders his units to prevent plunder, theft, and all other

9 forms of crime and war profiteering and to protect the population against

10 criminal activities and robbery. General Lazarevic demands from his

11 subordinate units to identify and apprehend the perpetrators quickly and

12 efficiently and to do the same to all those who are responsible for any

13 negative kinds of conduct, and the military court would then take the

14 appropriate measures provided by the law.

15 The Prosecution asked its witness General Aleksandar Vasiljevic to

16 analyse an order issued by General Lazarevic as the commander of the

17 Pristina Corps, this is the order admitted into evidence as P2014, and

18 this witness said that this order was a typical document drafted in a very

19 precise and professional manner by the PRK command and that this was a

20 high-quality order. That's at page 8732, lines 17 and 18, and at page

21 8734, lines 13 and 14.

22 In order to help the Chamber create a clear picture of those

23 Defence arguments, we also have to note that the subordinate units, when

24 they implemented the orders issued to them by the superior command, the

25 Pristina Corps command, and General Lazarevic focused in particular on the

1 protection of civilian population. Just to give you an example, you can

2 find this in Exhibits 5D86 and 5D87. In those orders, the commander of

3 the 2nd Motorised Battalion issues an order specifying that platoon and

4 company commanders are responsible for the prevention of plunder, terror,

5 and similar crimes and that civilian population is to be treated in a

6 professional manner and that any unnecessary destruction of buildings is

7 to be avoided. Special emphasis is placed on the protection of civilians

8 and that particular care must be taken of children and the elderly.

9 One should also note the orders issued by the commander of the

10 Pristina Military District, 5D32, dated the 20th of April, 1999; and 5D35

11 dated the 24th of April, 1999. In those orders, special focus is placed

12 on the protection of civilian population. There is a prohibition against

13 any wilful acts aimed at a civilian population and the prevention of any

14 movements or transfers of the civilian population, except when the

15 civilian population is at risk because of combat or NATO air-strikes. If

16 there is any threat to the civilian population, the order stipulates that

17 they are to be evacuated and provisionally put in a provisional location.

18 The commander of the Pristina Military District Zlatomir Pesic testified

19 before this Trial Chamber as a Prosecution witness, and he confirmed in a

20 clear and unequivocal manner that from the time when he was resubordinated

21 to the PRK command in mid-April 1999, he never received any oral or

22 written order from General Lazarevic that would be contrary to the law or

23 to the basic rules of engagement of the VJ. That's at page 7267, lines 4

24 to 13.

25 We consider on the basis of all that we have stated above that the

1 Prosecution has failed to proffer any evidence to support the allegation

2 that General Lazarevic contributed to the joint criminal enterprise by

3 ordering and planning, and the Prosecution in particular failed to prove

4 that he had the intent to commit any such crimes.

5 The Defence does not rule out the possibility that in some

6 operations and in combat with the KLA and in the course of defence against

7 NATO air-strikes, some acts were committed that were contrary to the

8 orders and those acts resulted in criminal offences, but such cases - it

9 is our contention - can be considered individual incidents and accidental

10 consequences and cannot be considered as efforts to implement a plan of

11 which my client was purportedly aware and purportedly had the intent to

12 actually implement it.

13 We have to add here that whenever General Lazarevic learned about

14 any such incidents, he reacted by filing criminal reports in order to

15 prosecute any persons responsible for such conduct, but we will say

16 something more about that as we move on.

17 In paragraph 58 of the indictment and paragraph 313 of the

18 pre-trial brief, the Prosecution states that General Lazarevic as the

19 commander of the Pristina Corps had a de jure and de facto control over VJ

20 brigades and smaller VJ units that were part of the Pristina Corps and

21 other units from other corps that were attached to the Pristina Corps.

22 Such allegations on the part of the Prosecution are absolutely incorrect,

23 and this conclusion is based on the evidence called by the Prosecution.

24 Prosecution Witness Aleksandar Vasiljevic in his testimony on the

25 23rd of January, 2007, claims quite resolutely that some brigades and

1 units were not subordinated to the Pristina Corps. That's at page 8963,

2 line 5. Furthermore, the decision to engage units from other corps was

3 made by the superior command, and it was completely legitimate and in

4 accordance with the law. The Defence would like to add here that

5 General Lazarevic had the de jure control only over those units that were

6 part of the Pristina Corps.

7 As regards the de facto control, we have to say that the

8 commanders of the subordinate brigades in the Pristina Corps were the ones

9 who had the de facto control over their subordinate units, battalions,

10 platoons, and companies on the ground.

11 The Prosecution also alleges that after the imminent threat of war

12 was declared on the 23rd of March, 1999, General Lazarevic gained control

13 over the military territorial units that carried out military operations,

14 the MUP units that were involved in the military operations, and armed

15 non-Albanian population in Kosovo that took care of local security.

16 In order to show that there is no evidence to support such

17 Prosecution allegations, we will give you some examples. The Defence

18 wishes to believe that this position of the Prosecution is a consequence

19 of the erroneous linguistic interpretation of Article 17 of the Law on

20 Defence of the Federal Republic of Yugoslavia. The Exhibit Number is

21 P985. In this article it is stipulated quite clearly that in the case of

22 an imminent threat of war, state of war, or state of emergency, the units

23 and organs of the Ministry of Interior may - I stress "may" - be used to

24 carry out combat tasks or to engage in combat or to offer armed

25 resistance. The word "may" indicates that this is just an option, and it

1 does not stem from this wording that they must be subordinated.

2 This argument and this interpretation of this law is confirmed by

3 Prosecution evidence. Prosecution Witness Aleksandar Vasiljevic in his

4 testimony before the Tribunal claims that there never was the

5 resubordination of MUP or its units to the Yugoslav Army. The

6 information, the order, the report to that effect was sent by the

7 commander of the 3rd Army to the Chief of General Staff, and that's

8 Exhibit P1459.

9 Prosecution Witness Dusan Loncar in his testimony states quite

10 unequivocally that MUP never commanded the army and that the army never

11 commanded the MUP. So he also confirms that there never was any

12 resubordination, that's at page 7609, line 25; page 7611, lines 1 to 9.

13 If one could say that all those witnesses that we quoted were

14 members of the VJ, we could offer in support of our arguments that Witness

15 Ljubinko Cvetic, chief in MUP, who confirmed that MUP had never been

16 resubordinated to the Yugoslav Army. That's at page 8140, lines 21 to 25.

17 With reference to military territorial units and the civilian

18 protection and defence, unambiguous evidence has been presented from the

19 standpoint of the subordination of these units to the Pristina Corps.

20 Prosecution Witness Zlatomir Pesic said that the use of military

21 territorial detachments which were part of the military districts was

22 optional and that their use depended on the decision of the brigade

23 commander. That's page 7237, lines 16 to 19.

24 This witness goes on to say that units of the civilian protection

25 and civilian defence, with reference to organisation, had a place within

1 the Ministry of Defence, and as such they had no connection with the VJ.

2 That's page 7184, lines 24 to 25; page 7185, lines 1 to 3.

3 This witness says that such detachments even had their own

4 separate chain of command which ran through the sector leaders of the

5 Ministry of Defence from Kosovo, or rather, leader Ilic up to the Ministry

6 of Defence in Belgrade without any points of contact with the

7 Pristina Corps. That's page 7184, lines 24 to 25; page 7185, line 1 to 3.

8 Furthermore, Witness Aleksandar Vasiljevic, whom we have referred

9 to more than once, in his testimony before this Tribunal on the 23rd of

10 January, 2007, also confirmed that units of the civilian protection and

11 civilian defence were not subordinated to the Pristina Corps but were

12 rather under the command of the Ministry of Defence. That's page 8963,

13 lines 1 to 5.

14 It is quite clear then that the above-mentioned claim by the

15 Prosecution has no basis in the evidence that has been adduced and that

16 the Prosecution has failed to prove which units under the command of the

17 Pristina Corps committed possible crimes. The Prosecution also submits in

18 its pre-trial brief that there were joint operations of the VJ and the MUP

19 and that the plans and orders issued by the corps commanders referred to

20 such joint operations. Our Defence does not deny that there were certain

21 operations on the ground where there was cooperation and coordination

22 between the MUP and the VJ. But there was no resubordination within the

23 scope of these operations. Both the MUP and the VJ retained their own

24 lines of command -- their own chains of command and their own chains of

25 planning. This is also shown by the evidence we have already referred to;

1 however, we can also find confirmation for this in an analysis of the

2 orders issued by the commander of the -- and commanders of the Pristina

3 Corps where joint operations are envisaged. However, it is quite clear

4 that specific tasks for such operations were always aimed against the KLA

5 and that they were issued exclusively to military units. And it is only

6 from the military units of the corps that feedback, or rather, reports and

7 briefings on the action carried out are required.

8 One of the elements of command is reporting on the implementation

9 of the order through a combat report. It is clear that only corps units

10 were asked to submit such reports. Not a single combat report goes beyond

11 the scope of the tasks that the Pristina Corps had. Let us remember that

12 General Vasiljevic evaluated these documents as highly professional and

13 very precisely drawn up.

14 It is correct that certain orders envisage coordination and joint

15 action, but let us reiterate this only pertains to actions aimed against

16 the armed KLA. And according to the testimony of Witness Bislim Zyrapi,

17 in the time-period these orders referred to, the KLA had grown to 18.000

18 soldiers, page 5959, lines 12 to 19.

19 Is coordination and cooperation between the legitimate organs of a

20 state irregular and illegal, especially when it is carried out in order to

21 implement a constitutional provision on the protection of the territorial

22 integrity and sovereignty of an internationally recognised state? The

23 answer to this is clear, even without adducing special evidence to prove

24 it. Of course such coordination and cooperation are not unlawful. They

25 are necessary in a situation when forces being used in an attempt to cut

1 off and separate off part of an internationally recognised territory which

2 has its internationally recognised borders, and these are assertions that

3 the Prosecution has also confirmed through the evidence it has adduced.

4 The Defence would like to remind the Chamber that

5 Witness Maisonneuve, when asked to comment on what we have just been

6 referring to, pointed out that coordination between the VJ and the MUP was

7 certainly necessary and he evaluated it as professional. He went on to

8 point out that every operation implying the participation of the VJ and

9 the MUP must entail close cooperation so that each formation knows about

10 the plans of the other in order to avoid so-called friendly fire.

11 Witness Maisonneuve also stressed the need to carry out

12 coordination in advance of such operations in order to establish a clear

13 description of the responsibilities of each formation. That's page 11183,

14 lines 13 to 23.

15 Prosecution Witness Colonel Crosland confirmed that based on his

16 experience which he gained serving throughout the world, it is to be

17 expected that there would be coordination and cooperation between various

18 elements of the MUP and VJ forces in Kosovo in order to avoid friendly

19 fire. Page 9815, lines 8 to 19.

20 And finally, Witness Dusan Loncar pointed out in no uncertain

21 terms the importance of coordination, cooperation, and exchange of

22 information between the MUP and the VJ and even the Federal Ministry of

23 Foreign Affairs. He said that such cooperation was not only necessary but

24 indispensable. He went on to say, especially in view of the activities of

25 the KLA, that full cooperation of these two armed components of the state

1 was needed in the carrying out of combat operations. That's page 7612,

2 lines 15 to 25; and 7613, lines 1 to 5.

3 The Prosecution in its pre-trial brief further alleges that the

4 plans and orders issued by the Pristina Corps in connection with

5 operations within the relevant time-period included continuous use of

6 troops and commanders which the accused Lazarevic knew to have been

7 involved in crimes committed in the course of 1998, and that rather change

8 tactics as soon as he took over command of the Pristina Corps in 1999,

9 General Lazarevic ordered the engagement of these same troops in the same

10 way that led to crimes in 1998. Such sweeping, across-the-board

11 statements by the Prosecution in its pre-trial brief are absolutely

12 unfounded in view of the evidence adduced before this Tribunal and the

13 facts that we consider to have been established.

14 The Defence would first like to point out that the Prosecution has

15 not in any serious way in a manner envisaged by criminal law even tried to

16 establish which crimes were actually committed in the course of 1998 or

17 who was responsible for them. The Prosecution attempted to tender

18 newspaper articles, books, or brochures which were rejected because of

19 their lack of weight or probative value. When we look back on the

20 evidence and the testimonies of the witnesses heard, it is clear to any

21 reasonable trier of fact that the Prosecution has failed by far to prove

22 this.

23 We have provided numerous examples of testimony by high-ranking

24 military and political officials who all unanimously confirmed that in

25 1998 the behaviour of the VJ was professional and correct.

1 The Defence further submits that General Lazarevic was not the one

2 who ordered the use of VJ and its units. Such orders on the use of units,

3 pursuant to the rules of the use of forces, have to come from a high

4 superior command. Witness Vasiljevic in his testimony on pages 8915,

5 lines 20 to 25, and 8916, lines 1 to 5, on the 23rd of January, 2007,

6 confirmed that the decision on the use of the army has to be made at the

7 highest command post and certainly not at corps level. This might be a

8 good place to mention the generally known fact which is common knowledge

9 and need not even be proved that a subordinate commander is duty-bound to

10 carry out orders coming from the superior command in every case except

11 when such an order requires the subordinate commander to commit a crime.

12 Needless to say, the Prosecution has not even tried to specify

13 which order, either issued by the superior command or by General Lazarevic

14 as the corps commander, ordered a subordinate command to carry out a

15 crime. The Prosecution was unable to prove this because, simply, there is

16 no such order. The assessment that those orders, which their own key

17 witnesses assessed as professional and very correct, contain ulterior

18 motivates and hidden intentions to carry out crimes are pure speculation

19 and this cannot rise to the level of a proved fact before this Tribunal.

20 It is clear that the conclusion presented by the Prosecution in

21 its pre-trial brief, that this use of troops is evidence that Lazarevic

22 instigated the perpetration of future crimes and therefore contributed to

23 the perpetration of crimes through which the criminal purpose was achieved

24 absolutely fails to hold water.

25 Furthermore, the Prosecution suggests that General Lazarevic, as

1 Chief of Staff of the Pristina Corps, was informed by international

2 observers in 1998 of crimes committed by forces under his command. This

3 claim is absolutely incorrect. It is not necessary to go into all the

4 assessments by high-ranking international officials of the behaviour of

5 the VJ, both towards the missions that were present in Kosovo and with

6 reference to the behaviour of troops on the ground.

7 What we feel should be mentioned here is that General Lazarevic,

8 as Chief of Staff of the Pristina Corps, attended a meeting in early

9 December, more precisely the 4th of December, 1998, between

10 General Drewienkiewicz and the military representative General Loncar, at

11 which the topic on the agenda was how to inspect VJ and MUP forces by the

12 OSCE, and no crimes were mentioned. Apart from this meeting, at which

13 General Lazarevic did not participate in the discussion, as testified to

14 by Drewienkiewicz, General Lazarevic attended no other meetings with OSCE

15 officials or officials of the Kosovo Verification Mission. Neither of the

16 witnesses we have mentioned spoke of any other meeting attended by

17 General Lazarevic, none of the witnesses confirmed that Lazarevic attended

18 any other meeting, and Witness Shaun Byrnes, when asked directly whether

19 he was ever in contact with General Lazarevic, said that he had never

20 contacted Lazarevic and that nobody even mentioned him. That's page

21 12201, lines 8 to 14.

22 The testimony of this witness shows how numerous the meetings were

23 which he attended from -- all the way up to March 1999 and the beginning

24 of NATO air-strikes. General Lazarevic is charged in the indictment with

25 failing to take any steps to prevent crimes and that he also accepted

1 volunteers into his troops. The Defence wishes to draw the Chamber's

2 attention to Exhibit P1479, which is an order issued by the Supreme

3 Command Staff dated the 7th of April, 1999, and it has already been

4 referred to by my colleague Mr. Sepenuk, where the Supreme Command Staff

5 stresses the importance of volunteers going through triage, through

6 training centres, and through all kinds of screening. And I will not

7 reiterate what Mr. Sepenuk has already said, although I had intended to

8 speak about this.

9 I will therefore move on now and speak of the testimony of Witness

10 Aleksandar Vasiljevic, who also stated that there were two reception

11 centres for volunteers, in Belgrade and you can see this in Exhibit P1479

12 which has already been referred to. These were in Grocka near Belgrade

13 and this was organised by the 1st Army; and the second location for the

14 reception of volunteers was Medja near Nis, this was organised by the

15 command of the Nis Military District.

16 Prosecution Witness Aleksandar Vasiljevic spoke about this issue

17 and confirmed the existence of these two reception centres where

18 volunteers were screened because of the bad experience from the preceding

19 period. 50 per cent of the volunteers who applied were rejected right

20 away. They did not pass through the check and were not received into the

21 VJ.

22 Also in evidence is Prosecution Exhibit P1938, that's a report by

23 the command of the 3rd Army about the reception and the assignment of

24 volunteers in the 3rd Army. This document shows quite clearly that there

25 were such two reception centres. So these exhibits show quite clearly

1 that the Prosecution's allegation that General Lazarevic was the one who

2 admitted volunteers into the Pristina Corps army does not hold water. The

3 reception of volunteers and their assignment was conducted in accordance

4 with the law at higher levels.

5 Did General Lazarevic do anything about the volunteers? Well,

6 you've heard about that from Mr. Sepenuk, my colleague, and I would just

7 like to remind you of Exhibit P1938, a document originating from the 3rd

8 Army command, and Exhibit P1943, a document originating from the Supreme

9 Command Staff, where we read the following:

10 "A few days after the reception, 25 volunteers were turned back

11 from the PRK and seven were detained because of rebellion, murder, rape,

12 refusal to comply with the orders, and desertion."

13 General Lazarevic took immediate measures when any irregularities

14 regarding the reception of the volunteers were observed and he took

15 measures to arrest those volunteers who committed criminal offences, and

16 he also take measures -- took measures whenever he had any knowledge from

17 his subordinate brigade commanders that VJ officers and rank-and-file

18 soldiers should be prosecuted if there was any suspicion that they had

19 committed any criminal act. There is documentary evidence and also

20 testimony by witnesses to support this claim.

21 We have document 5D84 that's been admitted into evidence, it's a

22 combat report issued by the PRK command and sent to the 3rd Army command,

23 where in paragraphs 5 it states: "In the previous days -- in the previous

24 day, 32 criminal reports were filed against perpetrators of criminal

25 offences: Eight murders; one abuse; three attempted murders; theft of

1 vehicle; theft, six instances; and absence without leave, 12 instances."

2 Again, in Prosecution Exhibit P2617, that's again a combat report

3 submitted to the 3rd Army command by the PRK command in paragraph 5 it

4 states -- it is stated: "In the previous day, six criminal reports were

5 filed against perpetrators of criminal offences."

6 Furthermore, Prosecution Exhibit 5962 [as interpreted], it's an

7 overview of criminal proceedings launched against persons responsible for

8 criminal offences within the area of responsibility of just one brigade,

9 that's the 549th Motorised Brigade, it is stated that 132 criminal reports

10 were filed, almost half of them were -- concern serious or severe criminal

11 offences. Yet, the Prosecution claims that in most instances the criminal

12 offences were failure to respond to the call-up. This overview for the

13 549th Motorised Brigade shows that criminal reports were filed under

14 numbers 103, 104, 105, and 106. You can see that four members of the

15 Yugoslav Army were prosecuted and convicted of war crimes.

16 So measures were not taken only against persons who failed to

17 respond to the call-up. This overview from the 549th Motorised Brigade

18 confirms this, confirms that serious efforts were taken to prosecute

19 rank-and-file soldiers and officers alike and this very same overview

20 shows that when it comes to the four members there were two soldiers, one

21 captain, and one major. They were prosecuted and convicted.

22 And the major who is the ranking soldier in this case was

23 sentenced to 14 years, the captain was sentenced to nine years, and the

24 two soldiers were sentenced, two privates were sentenced to five and two

25 years respectively.

1 Exhibit 5 -- Exhibit P1268, an order issued by the commander of

2 the Pristina Corps dated the 30th of April, 1999, orders that after

3 anti-terrorist combat actions are over, that clean-up of the theatre

4 should be carried out and this -- that this task is given to a unit that

5 was also tasked with carrying out anti-terrorist combat actions. In

6 paragraph 2 of this order it is stated that after combat is over,

7 investigative actions are to be taken if there are grounds for suspicion

8 or if there are any indicia that the criminal offence had been committed

9 or to clarify any relevant facts if it is possible -- if it is necessary

10 for the judicial investigative organs to directly observe the -- what is

11 going on.

12 Finally, in paragraph 3, it is stated that the unit responsible

13 for the carrying out of anti-terrorist actions also has within its remit

14 the conduct of investigative activities. Military judicial organs take

15 investigative actions only in cases when a VJ unit carried out the

16 anti-terrorist operations or when there was reason for -- to suspect that

17 the criminal offence was committed by a member of the VJ.

18 We have to say something about Exhibit P1182, this is a report

19 filed by the PRK command, dated the 15th of May, 1999, about the crime

20 trends among professional active-duty servicemen. This was sent to the

21 subordinate units, and this report clearly shows that in the period

22 between the 24th of March, 1999, and the 10th of May, 1999, proceedings

23 were launched before wartime military courts against 91 active-duty

24 servicemen.

25 This document is not a mere report, and this can be seen from the

1 last paragraph where it says that: "The commission of such and similar

2 criminal offences on the part of the officers and non-commissioned

3 officers in the state of war is deviant conduct that threatens to

4 seriously undermine the morale and combat-readiness in the VJ units and

5 nothing needs to be said about the influence it may have on the

6 subordinates."

7 It goes on to say that the perpetration of such and similar

8 criminal offences, particularly on the part of officers, to a large extent

9 besmirches the reputation of the VJ and the trust of the people in the

10 army.

11 When we talk about clean-up operations and investigations,

12 Prosecution witness said something about this topic,

13 Dr. Gordana Tomasevic, at page 7804, lines 18 to 25, when she was asked

14 about the exhumations she carried out at the Bijelo Polje site and later

15 on at the Malo Ribare site on the order of the investigative military

16 judges she said that both exhumations had been carried out in the presence

17 of a military investigative judge and that everything had been done in

18 accordance with the law on criminal procedure.

19 Finally, Prosecution witness General Aleksandar Vasiljevic, whom

20 we've quoted so many times, gave a very extensive and clear statement

21 about these issues. In his testimony he explained that there was a triple

22 line of reporting on potential crimes. One required that the commander of

23 the PRK should submit reports to the commander of the 3rd Army; the second

24 line was -- linked the security organs of the corps and the security organ

25 in the 3rd Army; and the third one linked military judicial organs.

1 That's at page 8964, lines 6 to 13.

2 This witness stated quite certain -- in no uncertain terms that

3 all the reports of the security organs on the crimes that were prosecuted

4 by the judicial organs, with the exception of the Gornja Klina incident

5 because it was impossible to do so because the Albanians took control over

6 this area. But, according to what this witness knows, this case was

7 finally brought to trial before the military court in Nis that's at page

8 8789, line 25, and page 8790, lines 1 to 15.

9 The same witness goes on to say that there was no intent on the

10 part of the VJ to conceal the crimes, and he also stresses that after

11 General Farkas visited the security organs of the Pristina Corps, gave

12 high marks to those organs, stressing that all the personnel in those

13 formations should be given a promotion. That's at page 8976, lines 21 to

14 25; page 8977, lines 19 to 25.

15 The Defence would like to submit or to note that in answer to an

16 explicit question, General Vasiljevic -- when General Vasiljevic was asked

17 whether General Lazarevic notified the higher command after he learned

18 about the crimes and submitted criminal reports to the judicial organs and

19 whether he could have done anything else, Witness Vasiljevic said he met

20 his obligations by doing that; there was nothing else he could do. That's

21 at page 8969, lines 18 to 23.

22 The Defence has to ask itself whether any reasonable trier of fact

23 could conclude that the Prosecution did prove beyond reasonable doubt that

24 General Vladimir Lazarevic participated in the JCE, in the planning,

25 instigation, and ordering of the concealment of crimes on the part of the

1 PRK or, indeed, instigated and gave legitimacy of the crimes against

2 Kosovo Albanians by failing to report or investigate those crimes. We

3 will quite clearly state here that we firmly believe that the Prosecution

4 has failed to do so and that the trier of fact cannot find this.

5 Finally, the Prosecution alleges that General Lazarevic

6 alternatively aided and abetted the commission of such crimes because he

7 allowed and facilitated the participation of VJ personnel and materiel in

8 combat actions in Kosovo. This contention by the Prosecution is both

9 illogical and contradictory. The Prosecution itself claims that Lazarevic

10 allowed the participation of the VJ in combat actions.

11 In addition to the evidence we referred to above on the use of

12 forces and the compliance with the orders, it is unclear why it is illegal

13 and irregular to use a military in combat. The Prosecution goes on to

14 suggest that he failed to take any disciplinary measures against VJ or MUP

15 personnel who had committed crimes in Kosovo, and that by doing that he

16 encouraged and gave moral support to the direct perpetrators of crimes

17 against Kosovo Albanians.

18 The Defence has already analysed the evidence that points quite

19 clearly to the fact that General Lazarevic had no powers over MUP

20 personnel and was not able and/or authorised to punish them. There is

21 ample evidence referred to above to show that the military judicial organs

22 had no powers to punish MUP personnel. An analysis of the reports on the

23 criminal offences that were prosecuted and the criminal reports that were

24 filed clearly and unequivocally indicate that military judicial organs had

25 no power to prosecute MUP personnel.

1 The Defence has already said something about measures taken

2 against VJ personnel in the Pristina Corps, and we claim therefore that

3 the Prosecution has not furnished any evidence for the alternative charges

4 against General Lazarevic on the basis of aiding and abetting. The

5 Prosecution claims that there was a joint criminal enterprise; that

6 General Lazarevic was aware, that he knew, of that plan; and that he did

7 possess the intent to commit the crimes he's charged with in the

8 indictment.

9 The Defence would like, once again, to stress that it is our firm

10 position that no plan targeting the civilian Albanian population existed

11 and that the Prosecution failed to prove that such a plan existed. If a

12 plan existed aimed against the civilian Albanian population, then we

13 believe firmly that General Lazarevic was not aware of this plan, that he

14 didn't know about that plan, and that he did not demonstrate an intent to

15 participate in such a plan. Although we are convinced that Prosecution

16 Witness Ratomir Tanic's evidence will not be given any major weight,

17 General Lazarevic must refer to parts of his testimony out of an abundance

18 of caution, as my learned colleague Mr. Sepenuk noted in his address. At

19 page 6756 of the transcript, the witness confirmed that Lazarevic did not

20 have a full picture of the events because he was not a member of the State

21 Commission.

22 There is an abundance of evidence indicating the large number, the

23 tactics of the conduct of combat, and other characteristics of the

24 activities of the armed KLA which, quite justifiably, could twist, warp

25 the picture on the existence of some kind of goal which was not the fight

1 to preserve the sovereignty and territorial integrity of the FRY.

2 We will go back and refer to the testimony of Bislim Zyrapi, who

3 said that at the relevant time-period the KLA had grown to as many as

4 18.000 fighters. The same witness, as we have already said, said that the

5 KLA retreated together with the population. He goes on to say that from

6 the beginning of NATO air-strikes, Serb forces attacked KLA positions.

7 All these statements were made on pages 5989, line 25; and page 5990,

8 lines 1 to 5.

9 Furthermore, this witness said that among the KLA fighters there

10 were also women and that from the beginning of the NATO air-strikes, the

11 KLA had the assistance of the Government of Albania, page 6180, line 1 to

12 13.

13 When asked where KLA fighters were located, this same witness said

14 that for the most part they were accommodated in schools, collective

15 facilities, and houses depending on the situation in the region, page

16 6181, lines 24 to 25; page 6182, lines 1 to 3.

17 The same witness goes on to say that local staffs which were made

18 up of the local population were supplied and armed by the KLA. He also

19 points out that they - these local staffs - wore civilian uniforms because

20 they did not have any military uniforms page 6232, lines 20 to 23.

21 Witness General Maisonneuve, in his testimony before this

22 Tribunal, spoke of a strong KLA presence in Kosovo, page 11111, lines 8 to

23 12; and further he testified it would be correct to conclude that the KLA

24 used villages as its basis, 11135, lines 3 to 9.

25 Witness Colonel Richard Ciaglinski, a member of the KVM mission on

1 page 6902, lines 16 to 25, confirmed that during the sojourn of the

2 mission in Kosovo the KLA carried out ethnic cleansing of Serb villages

3 and that during the negotiations in Paris the KLA intensified its attacks.

4 General Klaus Naumann, another witness, additionally confirmed

5 that it was exceptionally difficult to protect the civilian population

6 because the rebels were also wearing civilian clothes and were mixed with

7 the civilian population, page 8319, lines 22 to 25.

8 Colonel Crosland, in his testimony, confirmed that on the ground

9 the KLA implemented a strategy described in Mao Zedong's book and that it

10 first established its bases in villages and then expected the NATO

11 intervention. Page 9899 [Realtime transcript read in error "9895"], line

12 25; page 9900 [Realtime transcript read in error "9890"], lines 1 to 9.

13 Your Honours, I have perhaps some 15 minutes and I think this may

14 be a convenient time for a break.

15 JUDGE BONOMY: Thank you, Mr. Bakrac. We will adjourn now and

16 resume at 11.15.

17 --- Recess taken at 10.45 p.m.

18 --- On resuming at 11.16 a.m.

19 JUDGE BONOMY: Mr. Bakrac, in spite of the frenzied activity of

20 Mr. Cepic's right hand while you've been speaking and your own obvious

21 efforts to slow down, you've been speaking at a very high rate of knots

22 throughout your submission and I've been specially requested by the

23 interpreters to ask everyone now to just take even more care to slow the

24 process down. The speedy Mr. Ivetic, apparently, will follow you so now

25 is a suitable opportunity, I think, to make the particular point that

1 there is a speed beyond which the accuracy of the transcript cannot be

2 spoken for. So could I ask you, even if it takes you more than 15 minutes

3 to finish, just to slow down a bit.

4 Please continue.

5 MR. BAKRAC: [Interpretation] Your Honour, thank you so much. In

6 order to confirm what you have said just now, I will have to ask for two

7 corrections to be made in the transcript. May I make the following

8 corrections. Page 28 of the transcript, line 17, the exhibit that we

9 quoted was P962 rather than 5962. So it is P rather than 5.

10 And towards the very end, or rather, just before the break on page

11 35, line 22, it should read page 9899, line 25, and page 9900, lines 1

12 through 9.

13 Once again, I apologise to the interpreters for having caused them

14 this trouble by reading so fast and I will do my best, of course, not to

15 have this happen again.

16 Your Honours, we stopped at a certain part of the transcript which

17 has to do with the nature of -- of the struggle waged by the KLA against

18 the Serb forces, and we would like to say that General Dusan Loncar, a

19 Prosecution witness, otherwise a representative of the federal government

20 for cooperation with the OSCE mission, on page 7617, lines 17 through 23,

21 confirms that the KLA took advantage of the presence of the Kosovo

22 Verification Mission to, as he put it, re-organise, consolidate, arm, and

23 prepare for struggle against the Serb forces.

24 The same witness further on, confirms that the KLA often used

25 civilians as a human shield, primarily women and children. The page

1 reference is 7617, lines 24 and 25, then page 7618, lines 1 through 9.

2 This witness also adds that at the time when he was in contact with the

3 Kosovo Verification Mission, especially with General Drewienkiewicz,

4 frequent references were made to the forthcoming spring offensive of the

5 KLA, although in the pre-trial brief reference is made to the forthcoming

6 spring offensive of the Serb forces. The reference for this is on

7 transcript page 7618, lines 14 through 21.

8 As for what Witness Loncar said on the arming of the KLA and

9 preparing for a fight against the Serb forces, that is confirmed by

10 Witness Shaun Byrnes as well on page 12217, lines 24 and 25 and page

11 12218, lines 1 and 2. This witness says that it was well known among all

12 the international observers in Kosovo that the Albanians were arming prior

13 to, during, and after the October agreement. The testimony of the

14 mentioned witnesses, notably General Loncar, is corroborated by

15 Prosecution Exhibit P641, admitted on the 4th of December, 2006, which

16 constitutes a report of the liaison officer of the KVM marked DZ8, where

17 when events are described in the zone of Nerodimlje, it is stated that

18 there was a conflict between the KLA and the security forces and that a

19 military operation took place in order to remove the KLA from the region.

20 Further on, it is stated in the report that during the

21 preparations for this operation the brigade commander of the KLA from that

22 area made it impossible for the UNHCR to evacuate displaced persons, which

23 was interpreted as a cynical attempt to use Albanian civilians as a human

24 shield. All of the above mentioned clearly and unequivocally shows that

25 the Defence thesis is right; namely, that even if there was some kind of a

1 plan - and we repeat and we claim that there was no such thing and that

2 was not proven either - all this evidence clearly indicates that in such a

3 situation, even if there were a kind of plan, it would have been virtually

4 impossible or very difficult in this situation and bearing in mind the

5 position that my client held it would be very difficult to recognise that

6 kind of a plan, that is to say, bearing in mind KLA tactics, the use of

7 civilians, instant attacks. The plan, as the Prosecution says in the

8 indictment and its pre-trial brief from the point of view of the position

9 of the commander of the Pristina Corps faced with all these facts, it is

10 very hard to discern any such thing and we need to have firm evidence that

11 there was such a plan, or rather, that General Lazarevic knew of the

12 existence of such a plan and had an intention of taking part in such a

13 plan.

14 In order to support what we've been saying now in terms of intent,

15 we are going to invoke P2004, which constitutes a combat report of the

16 command of the Pristina Corps to the command of the 3rd Army, dated the

17 13th of April, 1999; namely, that some -- this is 20 days after the NATO

18 bombing started. And then in paragraph 4, which refers to the morale of

19 the members of the corps, the following is stated: "The morale of the

20 corps personnel is very good and stable. The increasingly pronounced

21 stands of world political factors that the question of Kosovo and Metohija

22 can and must be resolved by political means has had a positive effect on

23 the morale of the troops." Is that not sufficient evidence in terms of

24 General Lazarevic's intent? Encouraging the army and reporting to his

25 superiors that such solutions, political solutions, are generally accepted

1 within the corps.

2 Witness Dusan Loncar, in response to a direct question as to

3 whether he knew that there ever was any plan to attack the civilian

4 population and to expel it from Kosovo and Metohija, gives the following

5 answer: "First and foremost, knowing the people who were at the head of

6 this corps, Generals Lazarevic and Pavkovic, as well as the commanders and

7 persons who headed the organs, I would rule out any possibility in that

8 sense, and I think that would have been highly inappropriate."

9 The page reference is 7687, lines 9 through 15.

10 The Defence cannot but add at this point as well that it was

11 precisely it was this witness who said in response to a direct question to

12 the effect whether while he was in Kosovo he had occasion to assess the

13 professional conduct of General Pavkovic and General Lazarevic; and if so,

14 what his assessment was, he answered that he knew General Pavkovic from

15 their student days, from the military academy, and that he can say quite

16 freely that he is an exceptionally professional military leader and an

17 exceptional general.

18 As for General Lazarevic, Witness Loncar says that he can state

19 what the majority of the officers of the Army of Yugoslavia believe, that

20 he is a general par excellence.

21 Your Honours, I do apologise to you, a typo was made in the

22 references for this, so I don't have the exact page reference in my text.

23 So may I give you the exact page reference later for the transcript?

24 JUDGE BONOMY: Yes, you may, Mr. Bakrac.

25 MR. BAKRAC: [Interpretation] If the honourable Trial Chamber finds

1 probative value in -- for the testimony of Witness -- Prosecution Witness

2 K73, when assessing the intent of General Lazarevic, you have to look at

3 his testimony. What happened was very unusual. He asked whether he could

4 address the accused General Lazarevic directly, and then this witness said

5 that for General Lazarevic all -- as far as General Lazarevic was

6 concerned, all officers had a very high regard for him, they consider him

7 to be a professional soldier, a good, honest, honourable man, and a strong

8 commander.

9 In the personal view of this witness, General Lazarevic was never

10 a politician or simply career-oriented. He was a soldier, a military

11 leader, who defended his country.

12 Furthermore, this witness gave his own assessment that

13 General Lazarevic does not belong in this courtroom and that it was an

14 honour for him to have served his country under General Lazarevic's

15 command. The transcript page is 3415.

16 In this stage of the proceedings, highest standards are sought,

17 but we claim that the Prosecution did not present evidence and prove the

18 intent of General Lazarevic to take part in a possible joint criminal

19 enterprise and we repeat yet again that this never existed. Again, very

20 briefly, the Defence of General Lazarevic wishes to say a few words about

21 responsibility in respect of Article 7(3). Of course we have already

22 referred to some evidence in this context, so we are not going to repeat

23 it yet again. The Defence claims that the Prosecution did not manage to

24 prove that General Lazarevic omitted to exercise his own authority and

25 duties to prevent his subordinates from committing a crime, or rather,

1 that he omitted to punish them afterwards.

2 There is ample evidence that we pointed out during our previous

3 remarks when we spoke about responsibility in respect of Article 1,

4 especially in terms of aiding and abetting, and they are applicable in

5 terms of assessing responsibility in relation to Article 7(3).

6 We believe that by analysing this evidence we showed, or rather,

7 by referring to the relevant sections, we showed that the Prosecution did

8 not prove that General Lazarevic omitted to take necessary and reasonable

9 measures to prevent the perpetration of crimes and punish the

10 perpetrators. There was evidence concerning the return of volunteers and

11 the filing of criminal reports against officers and reporting to

12 subordinate units to refrain from the commission of crimes and to apply

13 provisions of international humanitarian law. And at any rate, these are

14 indispensable and reasonable measures to prevent crimes, or rather, to

15 punish perpetrators; and this punishment was within the authority of

16 military judicial organs. Again, I would like to refer to the testimony

17 of General Vasiljevic, a -- a witness here, namely that General Lazarevic

18 took everything within his powers in terms of prosecution and bringing

19 criminal charges against perpetrators.

20 The Defence, once again, would like to remind this Trial Chamber

21 that although General Lazarevic was physically and in terms of the line --

22 chain of command removed from the centre where the -- the top leadership

23 of the state was, also as the commander of the Pristina Corps he was

24 removed from immediate action in terms of his units in the field itself.

25 We wish to remind you that in terms of chain of command, under

1 General Lazarevic as commander of the Pristina Corps there were commanders

2 of brigades; and under them battalion commanders; then commanders of

3 platoons and companies. All of this clearly indicates that taking

4 measures directly depended on the degree and quantity of information that

5 came from subordinate units.

6 If we bear in mind - and I will now say something that hasn't

7 really been verified - Kosovo is in territory larger than the Netherlands

8 in view of the Defence. And if we look at the strength of the forces on

9 the ground, the question is whether General Lazarevic could, indeed, have

10 known of every irregularity or every crime that was actually committed on

11 the ground. It is quite obvious, again on the basis of evidence we quoted

12 above, that General Lazarevic responded to every incident, illegal

13 incident, that he had been notified of, and the Prosecution failed to

14 establish and prove that General Lazarevic failed to take measures to

15 prevent a crime or to punish perpetrators in any of the cases that he was

16 aware of.

17 On the basis of everything we presented above, the Defence of

18 General Lazarevic claims that the Prosecution has failed to prove that our

19 client is responsible under Article 7(1) and under Article 7(3) for crimes

20 alleged in the indictment in Counts 1 through 5, and that is why we move

21 that the honourable Trial Chamber acquit General Vladimir Lazarevic of all

22 five counts of the indictment and to set him free.

23 Thank you very much, Your Honours.

24 JUDGE BONOMY: Thank you, Mr. Bakrac.

25 MR. BAKRAC: [Interpretation] Your Honour, I have to apologise. My

1 colleague, Mr. Visnjic, has kindly given me the reference for the

2 transcript that I quoted just now, that's Dusan Loncar's evidence. Let me

3 just find the line.

4 That's at -- that's at 7648, and the line -- that's at page 40 of

5 our transcript today, line 5, there should be a reference inserted here

6 for the evidence we quote here, that's 7648, that's the page in the

7 transcript.

8 JUDGE BONOMY: Thank you.

9 MR. BAKRAC: [Interpretation] Thank you.

10 [Trial Chamber confers]

11 JUDGE BONOMY: Mr. O'Sullivan.

12 MR. O'SULLIVAN: Yes, Your Honour. My apologies to General Lukic

13 and his counsel for intervening. There is one point I'd like to raise

14 with the Chamber. We reviewed the submissions we made on behalf of

15 Mr. Milutinovic on the 1st of May and there's one correction that we have

16 found that needs to be made. It's at page 12375, line 12; at line 12

17 there's reference to Mr. Milutinovic and it should be Mr. Milosevic. I

18 believe I misspoke and I think the evidence supports that, what I've just

19 said. Thank you.

20 JUDGE BONOMY: Thank you, Mr. O'Sullivan.

21 Mr. Ivetic.

22 MR. IVETIC: Thank you, Your Honour.

23 May it please the Court, as you know, I am Dan Ivetic, and I will

24 be presenting the Rule 98 bis submissions on behalf of the Defence team of

25 Sreten Lukic, the sixth named accused in these proceedings.

1 A great deal of the general legal arguments and comments about the

2 deficiencies of the Prosecution's case have already been set forth

3 concisely by my colleagues, so I'll try not to unduly repeat those

4 submissions, save where I believe it is helpful to highlight regarding the

5 various submissions that I will be setting forth.

6 One thing that immediately is evident from a review of the

7 indictment and the record of evidence that has been led by the Prosecution

8 in this case is that the picture of events is not the same as was

9 envisaged in the third amended indictment, nor even in the opening

10 statements of my colleague Mr. Hannis, with which we commenced these

11 proceedings. Indeed, I would respectfully submit that among the things

12 that has been proven by the presentment of evidence to date has been how

13 inaccurate and flawed witness statements and supporting material forming

14 the indictment can be.

15 Just as we could not take for granted the material set forth in

16 the witness statements without scrutiny in cross-examination, likewise, we

17 submit, that it is necessary to scrutinise the indictment in light of the

18 evidence that has been led as the picture that has emerged does not, in

19 fact, support the allegations of the indictment against our client, and

20 therefore acquittal is proper and necessary under Rule 98 bis to avoid

21 injustice.

22 The importance of giving a thorough application of Rule 98 bis to

23 this case cannot be stressed enough. A cornerstone principle of the

24 Tribunal is that the Prosecution bears the burden throughout the case of

25 proving the guilt of an accused beyond a reasonable doubt. If the

1 Prosecution fails to clear the first hurdle of establishing a case that

2 requires an answer from the accused in his Defence case, the burden

3 clearly has not been discharged and the case against him must be

4 dismissed.

5 Likewise, if the goal of these proceedings has been the

6 ascertainment of the truth, the evidence adduced by the Prosecution must

7 be assessed as to the truth it has revealed and if it is wholly

8 inconsistent with the allegations of guilt made by the Prosecution in the

9 indictment, the charges against Mr. Lukic must be stricken at this stage.

10 I think it's important to highlight one of the earlier 98 bis decisions in

11 the Prosecutor versus Kordic and Cerkez of 6th April 2000 at paragraph 28

12 where the Trial Chamber held that the Rule 98 bis motion ought to be

13 granted where the Prosecution's case has: "Completely broken down, either

14 on its own presentation or as a result of such fundamental questions being

15 raised through cross-examination as to the reliability and credibility of

16 witnesses that the Prosecution is left without a case."

17 Respectfully, the instant circumstances are precisely those with

18 respect to the allegations against Mr. Lukic.

19 As my colleague Mr. O'Sullivan cited to the law from the most

20 recent 98 bis cases, if -- the Prosecution's case cannot survive at this

21 stage if it is based upon evidence incapable of belief. Now, by way of

22 introduction and overview, it is respectfully submitted that the case

23 presented by the Prosecution has failed to establish the fundamentally

24 required elements of the crimes charged against Sreten Lukic. The

25 Prosecution, respectfully, submitted no evidence that Sreten Lukic in

1 concert with other individuals identified in the indictment planned,

2 instigated, ordered, committed, or otherwise aided and abetted in the

3 commission of crimes charged in the indictment at either the preparatory

4 or execution phases, whereby his participation in formulating a criminal

5 plan and endorsing a plan proposed by others was substantial, as required

6 by the relevant standards for a joint criminal enterprise from the

7 jurisprudence of both this Tribunal and the ICTR.

8 We submit that while a reasonable trier of fact could potentially

9 find under the evidence presented that one or more of the alleged crimes

10 in question were committed by someone, it could not find beyond a

11 reasonable doubt that Sreten Lukic was involved in or intended the results

12 of these crimes. I will go through the charged incidents from the

13 indictment to demonstrate this fact more clearly later in our submissions.

14 The Prosecution presented no evidence that Sreten Lukic by his

15 acts and conduct prompted other individuals identified in the indictment

16 or specified through the evidence to commit the crimes charged in Counts 1

17 through 5 of the indictment. Likewise, the Prosecution presented no

18 evidence that Lukic's acts or conduct constituted a contributing factor to

19 the conduct of the physical and actual perpetrators of the crimes alleged.

20 There is no evidence before this Chamber that Mr. Lukic intended

21 to provoke and induce the commission of these crimes or that he was aware

22 of the substantial likelihood that the commission of these crimes would be

23 a probable consequence of any acts and conduct on his part. Simply put,

24 the evidence fails to uphold any possible liability for instigating crimes

25 either.

1 The Prosecution has not adduced proper evidence that Sreten Lukic

2 issued any criminal orders to individuals who are alleged to have been the

3 perpetrators of crimes set forth in the indictment; indeed to the

4 contrary, the relevant evidence presented shows that Lukic never knowingly

5 or wilfully issued any orders to commit crimes nor, indeed, did he have

6 authority over persons alleged to have committed crimes.

7 The Prosecution case has failed to establish with requisite

8 evidence that Mr. Lukic aided or abetted any individuals alleged to have

9 perpetrated crimes. As is clear, Mr. Lukic never rendered any assistance

10 and, rather, per the testimony of K84, one of the insider MUP star

11 witnesses for the Prosecution, among others, Mr. Lukic was instrumental in

12 the commencement of inquiries into alleged misconduct and an establishment

13 of an Ministry of Internal Affairs Working Group to investigate MUP

14 personnel relative to the clandestine transport of bodies to Batajnica and

15 elsewhere in Serbia. We can find this from transcript page 5214, line 21

16 through transcript page 5215, line 6.

17 The evidence of this Prosecution witness, K84, established that

18 Sreten Lukic told this Working Group to investigate everyone, including

19 himself, to determine the truth and that he positively cooperated in the

20 investigation. This is from the transcript page 5216, lines 5 through 17.

21 This evidence flies in the face of the general allegations in the

22 indictment and does not correspond with someone who had any fears or guilt

23 on his mind. The requisite mens rea or intent of Mr. Lukic to commit or

24 conceal crimes has not been established by the evidence.

25 The Prosecution simply did not adduce evidence that demonstrated

1 that during the relevant time-period of the indictment, that is March to

2 June 1999, that Sreten Lukic knew of persons intending to commit crimes or

3 that he was aware or intended that any of his acts assisted the principal

4 offenders in these crimes.

5 Now, I'd like to start our highlighting of various matters of

6 evidence with respect to Article 7(3) liability which is alleged against

7 Mr. Lukic to be -- to establish such a form of liability, the

8 three-pronged test must be satisfied which was enumerated by my colleague

9 Mr. Ackerman yesterday. All three prongs of the test are important for

10 scrutinising the evidence against Mr. Lukic and, respectfully, the

11 Prosecution has failed to demonstrate any of the three prongs to the

12 requisite degree necessary to uphold a conviction and to survive the 98

13 bis stage.

14 Conspicuously, I must point out, the Prosecution failed to call a

15 single expert witness to delineate and opine upon the structure,

16 functioning, and lines of command of the Ministry of Internal Affairs of

17 the Republic of Serbia under the laws and regulations and legislation in

18 place during the relevant time-period. According to the Prosecution's

19 pre-trial brief, much of the allegations about the functioning of the

20 Ministry of Internal Affairs was to be proven via a purported expert

21 witness. Not only did no such expert materialise, but the Prosecution

22 instead tried to obtain unqualified testimony from persons with no

23 training in internal affairs and no formal knowledge of the laws

24 pertaining to the Ministry of the Interior, essentially, to give layperson

25 opinions and conjecture about the functioning of the MUP, speculation

1 really. Multiple KVM, KDOM personnel, as well as purported VJ insiders

2 were questioned about the functioning of the MUP.

3 This is interesting insofar as all these witnesses came from

4 military backgrounds and presented military terminology and military

5 understanding to express their beliefs and understanding about how the MUP

6 functioned. Even more interesting, although having the opportunity to

7 examine several MUP officers and officials that testified, such as K84 and

8 Caslav Golubovic, for instance, about the functioning of the MUP, the

9 Prosecution failed to take advantage of that opportunity and relied upon a

10 vision basically painting the MUP as if it were just another type of army

11 formation with army ranks and positions and an army or military stove-top

12 chain of command to the top.

13 Such a flawed approach is apparent from the very indictment.

14 At paragraph 7 of the indictment states that Lukic was appointed

15 as "head of the MUP staff." Now, throughout the trial terms such

16 as "chief" or "commander" have been used to describe Lukic. However, the

17 sole bit of evidence relied upon by the Prosecution regarding this

18 allegation, P1505, sets forth plainly that the true position of

19 Sreten Lukic is in the original Serbian language "rukovodilac", which in

20 English can mean manager or administrator or head. It does not mean the

21 same thing as "nacelnik", the Serbian word for chief which describes the

22 function or position of the heads of the secretariats for internal affairs

23 in Serbia and Kosovo and this distinction is vital within the police

24 structure as it makes a difference to the authority and power and body

25 within that position.

1 Simple logic dictates that insofar as "rukovodjenje", the verb

2 form of rukovodilac or management is one of the powers of nacelnik or

3 chief but that a nacelnik also has command ability which is distinct from

4 rukovodjenje implies that a rukovodilac, one who undertakes rukovodjenje,

5 has a much narrower scope of superior authority. This is confirmed by the

6 evidence led by the Prosecution, specifically P1737, the Law on Internal

7 Affairs, which sets forth the powers embodied within a nacelnik.

8 Now, the problem presented by this error in thinking and error in

9 using terminology and the deficiency of using military-minded persons to

10 describe the functioning of the MUP can be seen from other laws that have

11 been introduced into evidence by the Prosecution. Unlike the Ministry of

12 Interior, the army - in this case the VJ - according to Exhibit P984, is

13 defined as having command based on the principles of unity of command,

14 unity of superiors, and obligations to execute the decisions and orders of

15 superior officers. The allegations made by the Prosecution against the

16 MUP follow this same model, but on the other hand the law specifies a

17 different model, specifically P1823, the law on state administration,

18 specifies that ministries are state administrative organs and that the

19 minister represents the ministry, the minister organises and provides for

20 the efficient and legal work of the ministry and the minister decides

21 about the rights, duties, and responsibilities of the employees of the

22 ministry, with the minister ultimately responsible for his function and

23 the work of the ministry.

24 Thus, rather than having a strict unity of command as understood

25 in the military sense, rather than having unity of superiors, a ministry

1 employee can have whatever duties and authorities are given to him by the

2 minister. Importantly, the Chamber will recall throughout the trial that

3 various MUP witnesses testified that persons with lower ranks such as

4 captain or major actually were superior in power and authority to persons

5 with higher ranks, such as colonel or general, based upon the authority

6 conferred to them by their specific appointment. I would recall witnesses

7 K84 and Caslav Golubovic, for example, on this point.

8 Now, such fundamental features of the relevant laws introduced by

9 the Prosecution were either ignored, misunderstood, or simply not

10 appreciated by the Prosecution. The plain language meaning and reading of

11 the laws introduced into evidence does not support the claim of superior

12 authority as to Sreten Lukic, and in fact neither does the other evidence

13 adduced. If one looks at the evidence adduced, it is plain that Sreten

14 Lukic did not, in fact, have effective control over all MUP units, as the

15 Prosecution alleges at paragraphs 66 and 67 of the indictment.

16 Likewise, no evidence was adduced that Lukic planned, organised,

17 coordinated, or controlled all MUP forces alleged at paragraph 15 of the

18 indictment. Likewise, there is no evidence showing how he could have

19 control over non-MUP units.

20 Now, if we look at the allegations of the indictment, we have to

21 clarify one other matter arising from paragraph 7. At paragraph 7 it is

22 stated that in May of 1998 Lukic ascended to the position of head of the

23 MUP staff. No other evidence was adduced to prove this; rather, Exhibit

24 P1505, as well as the live testimony of Witness Ljubinko Cvetic,

25 established that Lukic came to this position within the MUP staff on the

1 11th of June, 1998.

2 Now, although the OTP in its submission will likely point to

3 Exhibit P1505 as supporting their claim that Lukic had control and command

4 over the RDB, that is the state security units, as well as the RJB, the

5 public security units, primarily because Mr. Gajic of the RDB is listed as

6 assistant head of the staff, all the evidence adduced runs counter to this

7 showing the way that the decision was implemented in the field. A host of

8 witnesses including the aforementioned Ljubinko Cvetic, Shaun Byrnes,

9 General DZ, Colonel Richard Ciaglinski, Colonel Maisonneuve,

10 Colonel Phillips, and Colonel Loncar testified and established that Gajic

11 of the DB was not, in fact, Lukic's assistant, but rather

12 Colonel Mijatovic held that position in practice. Likewise, Cvetic, when

13 asked to identify the members of the MUP staff, did not name any of the

14 other persons set forth in P1505. So there has not been evidence proving

15 that the DB fell under Mr. Lukic's control.

16 What about the other units? Ljubinko Cvetic clearly enunciated

17 that the SAJ and the JSO were directly subordinated to the chiefs of the

18 RJB and the RDB respectively, which of course means they could not be

19 subordinated to Mr. Lukic. We heard testimony from a former member of the

20 PJP, K25, who also confirmed that the JSO was subordinated to the RDB and

21 had a chain of command apart from the RJB. This is at transcript page

22 4722, line 20, through transcript page 4723, line 6.

23 P1505 also sets forth the narrower empowerment of the MUP staff of

24 Kosovo, which again the Prosecution has ignored.

25 K25 further testified about the overall commander of the PJP units

1 as being someone other than Lukic. He identified Obrad Stevanovic at

2 transcript page 4732, line 12. This evidence was corroborated by another

3 former PJP member, K79, who stated explicitly that: "Your Honour, my

4 commander had meetings with Obrad Stevanovic, the commander of the PJP

5 units. Mr. Lukic was not the commander of the PJP units and I don't see

6 why they would have to meet."

7 Transcript page 9622, lines 11 through 13.

8 The evidence is also clear through other witnesses that

9 General Stevanovic, assistant minister of the Ministry of Internal Affairs

10 was on the ground continuously throughout the relevant time-period of the

11 indictment.

12 Now, with respect to the SUPs, the Secretariats of Internal

13 Affairs, Prosecution Exhibit P1074, a work-plan for the year 1999 of the

14 Pristina Secretariat of the Interior, does not mention the MUP staff as

15 having any role in its functioning and, rather, states that its

16 functioning was controlled by the RJB of the ministry in Belgrade.

17 Indeed, the first words of this exhibit are: "On the bases of the

18 programme of work of the RJB of the MUP of Serbia for the year 1999 ..."

19 And so forth. Clearly the RJB and the minister -- ministry in Belgrade

20 are the organs that planned the work of the SUPs as well.

21 With respect to OPGs, the Operative Sweep Groups that were

22 discussed as a MUP unit, Witness K86, another MUP insider witness,

23 trumpeted by the Prosecution as a key witness in their case, testified

24 that these units were actually commanded by the SUP chiefs themselves.

25 Transcript page 7353, lines 3 through 9.

1 Exhibits P1247 and P1249 likewise show that the commander of the

2 PJP at the SUP level was also the commander of the OPG and that the OPG

3 were actually a component of the PJP, meaning that their chain of command

4 would be as the other witnesses testified to, not going to Sreten Lukic.

5 Accordingly, despite calling a number of MUP insider witnesses, the

6 existence of an actual superior/subordinate relationship between Lukic and

7 the various MUP units and organs in the field has not been proven.

8 Further, Ljubinko Cvetic, one of these insiders, testified that

9 the MUP staff in Pristina, and indeed Sreten Lukic, had no role or power

10 or authority to discipline any employees of the Ministry of Internal

11 Affairs, and that such a role was played directly by the minister and

12 other authorities in Belgrade. This is from transcript page 8155, lines 4

13 through 19, and it is also demonstrated by Exhibit 6D133 which shows that

14 the MUP staff was bypassed and had no role in disciplining MUP personnel.

15 I would remind the Court that Judge Bonomy pressed this point with

16 Witness Cvetic, who remained steadfast that it was very clearly explained

17 that the staff and Lukic had no authority whatsoever to punish members of

18 the MUP. Accordingly, a fundamental requirement to be considered a

19 superior within the three-pronged test, the power to discipline an alleged

20 subordinate, cannot be satisfied by the evidence adduced and Article 7(3)

21 liability cannot attach to Mr. Lukic, and as such should be stricken.

22 Now, just for the record, the last prong that the alleged superior

23 knew of the actions of his alleged subordinates, none of the evidence has

24 established that any crimes were reported to the MUP staff from the field.

25 Indeed, the minutes of meetings of the MUP staff that were

1 introduced into evidence, I have some numbers here, I believe P1990 and

2 P1993 demonstrated that crimes alleged in the indictment were not

3 discussed or known of. Likewise, no orders were given by anyone to commit

4 criminal acts. The MUP staff daily reports introduced into evidence - and

5 I urge the Chamber to review them all - likewise demonstrate the type of

6 information available to the MUP staff which should not include knowledge

7 or reporting of any criminal wrong-doing in the field.

8 On the issue of knowledge or notice, it should be recalled that

9 the oft-cited General Vasiljevic, a high-ranking official in the security

10 organ of the VJ who was tasked specifically with investigating crimes in

11 Kosovo and who had security operatives giving him unverified hearsay

12 information that they could not confirm, he even testified that he knew

13 nothing and heard nothing about the alleged crimes from this indictment

14 from his operatives. Now, if Vasiljevic, who as we saw, was keen to take

15 issue with the MUP and accuse the MUP, perhaps due to his personal

16 contacts with the RDB, but if he who had operatives in Djakovica and

17 elsewhere didn't know about the alleged killings in Meja, Korenica, and

18 elsewhere, how is it expected or believed that Sreten Lukic would know if

19 such crimes were not reported to him either? Again, I stress, no evidence

20 was presented establishing that Lukic knew or that these crimes were

21 reported to him at the relevant time-period of 1999?

22 On knowledge: K25, who spent four days at Mala Krusa expressed

23 surprise of the alleged killing and burning of over 100 persons that was

24 said to have occurred precisely during this time-period. He didn't know

25 anything about it, despite having been on the ground. And again, there

1 was no evidence that Sreten Lukic was ever on the ground.

2 These are only examples. There is another example of what actions

3 were taken when there was knowledge of killings. It should be recalled

4 that two -- actually, three incidents that General Vasiljevic knew about

5 were fully processed. The killings in Podujevo, Kosovska Mitrovica, and

6 Kosovo Polje, although not in the indictment were known to Vasiljevic and

7 through cross-examination it was determined and from the other evidence in

8 the case it has been determined that the perpetrators were arrested and

9 even though members of the MUP were arrested by the relevant MUP

10 authorities and the MUP structures acted in accordance with the law and

11 handed them over to the appropriate judicial authorities for processing.

12 I must stress that if you review the law that has been presented,

13 you will see that with respect to the functioning of the MUP this is all

14 the police is empowered to do. They have no control over the functioning

15 of the judiciary. It's not like the military that has their own judicial

16 organs. The civilian organs of the judiciary have absolutely no

17 connection with the police.

18 Now, Article 7(1) liability that is alleged against Mr. Lukic, the

19 same logic applies for Article 7(1) liability insofar as the evidence has

20 failed to establish any involvement of Lukic in the crimes alleged. The

21 specific instances of murder, for example, will be discussed later. In

22 fact, there is only one witness who even mentioned Lukic within the

23 context of any direct participation in any alleged activity, and that was

24 Bozidar Protic in the context of claiming to have recognised Lukic's voice

25 over the telephone as the one directing him to find corpses to be

1 transferred to Serbia. However, the evidence of Protic, we submit, is

2 incredulous and cannot be relied on at this stage due to its unbelievable

3 nature. One would have to suspend belief to afford this evidence any

4 credence and therefore it is not proper evidence to sustain a conviction

5 or to survive 98 bis.

6 First of all, if we are to believe Protic's initial testimony, he

7 drove Lukic for six months as his personal driver and recognised the voice

8 on the phone as being "assistant minister Lukic" because of this fact.

9 Transcript page 11299 lines 20 through 25.

10 However, at the relevant time-period, as the evidence showed,

11 Sreten Lukic was not an assistant minister of the interior and only became

12 so under the democratic government that overthrew Slobodan Milosevic. Now

13 Protic later conceded that he, in fact, had driven Lukic only a handful of

14 occasions, once in Kosovo in 1990 and one or two times in Belgrade to his

15 home, a full 8 to 10 years before hearing the voice on the telephone that

16 he immediately recognised. Protic's evidence also runs counter to the

17 sworn statements that that he gave to the MUP Working Group in 2001 and

18 also to the sworn testimony he gave the Belgrade investigative judge,

19 Dilparic, in 2003.

20 Protic, when he came here, claimed that during the 2001 statement

21 he was fearful for repercussions if he mentioned Lukic because of the way

22 that he had been summarily retired and the fact that he still had family

23 members who still worked in the ministry and could be dealt with

24 similarly.

25 However, the evidence demonstrated that, in fact, the 2001

1 statement was taken long before any of the retirement proceedings occurred

2 relative to Protic and that he actually had no such fear at the time. We

3 see this from transcript page 11353, line 21, through 11354, line 9.

4 Remarkably yet another inconsistency within the sworn statement initially

5 given to Belgrade by Mr. Protic was that the person on the other end of

6 the line called him by his first name. And then in his testimony before

7 this Trial Chamber that changed to the person calling him by his family

8 name, transcript page 11311, line 23, to 11312, line 1.

9 Additionally, Protic did concede another telling fact, that he had

10 once gone to Lukic when Lukic was chief of the RJB after the Kosovo

11 conflict and had asked for Lukic to illegally give him an apartment or

12 flat, which Lukic refused to do. This animosity over Lukic's refusal to

13 breach the law to give Protic a flat can be seen as another reason for the

14 change and the unbelievable testimony of Protic.

15 Lastly on Protic, the testimony runs afoul of the testimony we

16 heard at this Tribunal from three other witnesses and contained in the

17 multiple statements tendered through K84 that demonstrate -- that clearly

18 do not reference Sreten Lukic as having any role in the clandestine

19 transport of bodies to Serbia.

20 Thus, as this unbelievable evidence is the sole evidence presented

21 by the Prosecution linking Sreten Lukic personally to the commission or

22 covering up of crimes, it alone is not sufficient to establish his guilt

23 and acquittal ought to be granted.

24 At paragraph 24 of the indictment, the Prosecution alleges the

25 creation of the Joint Command as being in furtherance of the joint

1 criminal enterprise, in that it had de facto command authority over both

2 VJ and MUP units. The importance of the Joint Command to the

3 Prosecution's case was highlighted by the opening statement of Mr. Hannis

4 when he stated: "The Joint Command was closely involved in the planning,

5 execution, and monitoring of the various combat operations in Kosovo

6 during the first half of 1999. In effect, the Joint Command brought

7 together the two separate chains of command of the VJ and the MUP." This

8 is transcript page 445, line 4 through 7.

9 However, the evidence adduced at trial failed to demonstrate the

10 Joint Command to be anything nearly as nefarious as suggested by the

11 Prosecution. As my colleagues have pointed out already, the Joint Command

12 documents are merely documents of the Pristina Corps, issuing orders to VJ

13 units. Not a single Joint Command document in evidence purports to issue

14 orders to MUP units. Indeed, MUP insider Ljubinko Cvetic essentially

15 debunked the Prosecution's case on the Joint Command in answering

16 Judge Bonomy's question that: "If I could also ask you, you've given

17 evidence already that the normal chain of command according to the Law of

18 the Interior was in place for both the MUP and the VJ throughout 1998.

19 Now, the Joint Command, you've told us earlier, had been established by

20 July 1998. Are you saying that with it in place the normal chains of

21 command continued to operate?"

22 The witness through interpretation answered: "Yes." This is from

23 8 December 2006 transcript, page 8123, lines 6 through 12. Another

24 vaunted insider witness Mr. Vasiljevic produced a notebook entry for what

25 he called a Joint Command meeting which turned out to be an innocuous

1 meeting at the Pristina Corps headquarters, Exhibit P2532.

2 Now, even the purported minutes of the Joint Command P1468, whose

3 dubious authenticity we must accept for purposes of Rule 98 bis, do not

4 set forth any orders to commit crimes nor any other activities that could

5 be deemed to be criminal nature. Crucially no documents set forth any

6 type of plan to deport Albanian civilians from Kosovo and Metohija.

7 And within the "Joint Command" itself, it ought to be recalled

8 that Vasiljevic, albeit only after being confronted with the videotape of

9 his words in his interview with the Prosecution, testified that among the

10 several participants, including MUP participants, Lukic had the least

11 significant standing, being as he was the last hole on the flute.

12 Transcript page 9066, lines 8 through 10.

13 Now, apart from this, we had very little evidence about the

14 functioning of the MUP during the period of the NATO bombing, that is the

15 critical time-period of the indictment. For instance, Shaun Byrnes

16 confirmed he did not know how the MUP functioned during that time-period

17 or even who the most senior MUP officers on the ground were during that

18 time and how they functioned. Transcript page 12230, lines 10 through 15.

19 Similarly, all the Kosovo Verification Mission witnesses confirmed that

20 their information only related to the time-period prior to the NATO

21 bombings.

22 Again, I cannot stress greatly enough that the Prosecution failed

23 to call an expert on the structure and functioning of the Ministry of

24 Internal Affairs. Based on the paucity of this evidence, there is no way

25 that a conviction of Sreten Lukic can be established, relative to any

1 purported command authority arising out of this so-called Joint Command or

2 otherwise.

3 Now, if we can turn to some of the specific allegations of the

4 indictment as to crimes, I would just like to highlight how flat the

5 Prosecution case has fallen, particularly with respect to the allegations

6 that had been made previously about the participation of MUP personnel.

7 And again, I'll only highlight some of the murders for sake of efficiency.

8 The indictment specifies 11 incidents of murder, while three

9 incidents have been removed from the indictment by order of the Trial

10 Chamber, the evidence presented relating to the others at this stage can

11 be said to establish that certain crimes were committed by certain

12 individuals; however, it cannot be said that these crimes have been linked

13 via nexus to Sreten Lukic either by way of knowledge, plan, order,

14 effective control, meaningful contribution, or assistance.

15 Indeed, the evidence has shown that these regrettable crimes have

16 been shown to be private crimes committed by private individuals for very

17 personal reasons, and that -- although some of the individuals were police

18 members or MUP members, they were acting on their own, outside of the

19 orders and directives given to them. Other incidents were committed

20 apparently by unknown individuals and so far as the Prosecution has seen

21 fit not to investigate and present evidence differentiating between

22 paramilitary, army, police, civilians or otherwise, the true identity of

23 the perpetrators cannot be established.

24 Although it is respectfully submitted that the Prosecution case

25 has failed to establish the necessary evidence for criminal liability on

1 any of the murders, we will look through them in greater detail.

2 The first such example would be the incident in Suva Reka, the

3 Berisha family killings. The Prosecution trumpeted this event as having

4 been planned and ordered by MUP superior officers in Suva Reka and carried

5 out by MUP subordinate officers. They even brought an insider witness K83

6 who was a participant and an eye-witness in the killings; however, rather

7 than testifying as to receiving any orders to kill, K83 testified that the

8 decision to throw grenades into the pizzeria where the Berisha family was

9 hiding was made after he and his colleagues consumed 2 litres of hard

10 liquor "like water." Transcript page 3990, line 14, as well as transcript

11 page 4005, lines 10 through 11.

12 Clearly this was not something that was part of their duties.

13 Also, the evidence given about the efforts of the perpetrators,

14 themselves locals, and their local colleagues to hide the evidence of the

15 crime, demonstrate that the same would not have been reported and

16 therefore would not have been known to Lukic. And again, there was no

17 evidence showing that it was reported or known.

18 Then we have the incident at Milos Gilic Street in the Djakovica

19 town. Again, the perpetrators of the crimes are neighbours, locals. And

20 we heard testimony from various of the victim's family that they saw the

21 perpetrators consuming alcohol and found evidence of drug use prior to

22 undertaking the heinous acts alleged. There is no evidence that this was

23 planned, coordinated, or otherwise known to MUP authorities in Djakovica,

24 let alone the MUP staff in Pristina.

25 Then we have the incident at Mala Krusa, where again the

1 perpetrators are alleged to have been local neighbours wearing all sorts

2 of uniforms. K25, a regular police officer present in the area as part of

3 the PJP, testified that there were no orders issued to harm, kill, or

4 mistreat Albanian civilians. He further testified as to assistance given

5 to the Albanian civilians by he and his fellow MUP colleagues who viewed

6 them as fellow citizens. This is inconsistent with any orders to kill.

7 Likewise, the Prosecution introduced evidence relative to the

8 alleged perpetrators, the names of individuals stated to have been

9 involved in the killings. The investigations of the Prosecution revealed

10 that very few of the perpetrators had any formal connection to the Serbian

11 MUP. I would draw the Court's attention to Exhibits P2335, P2849, P2850,

12 and P2851, for instance. One of the Nikolic men who was a firefighter

13 within the MUP was not even listed on the guard rosters that were

14 introduced into evidence through Witness Sweeney, so it cannot established

15 that those that were formerly affiliated with the local SUP in Prizren in

16 any way actually took place -- took part in the activities as part of

17 their official duties.

18 Indeed there was evidence of another plausible explanation for

19 this event; namely, it was adduced in evidence that other members of the

20 Nikolic family had been previously abducted from Mala Krusa by the KLA and

21 had been mistreated by the KLA. I refer, for instance, to transcript page

22 4403 through 4404. Accordingly, private vendetta or revenge by the

23 Nikolic clan against the local Albanians cannot be ruled out, particularly

24 insofar as the vast majority of the alleged perpetrators that were named

25 by the witnesses have been determined not to have ever been members of the

1 MUP.

2 Now, again with respect to the Meja and Korenica in Djakovica,

3 Aleksandar Vasiljevic, the VJ security officer who was investigating

4 allegations of crimes in Kosovo, testified that his operative from

5 Djakovica gave him information, including about other locales such as

6 Kosovska Mitrovica. However, it is crucial to note what his security

7 organ failed to tell him. Vasiljevic denied having any information about

8 Meja and Korenica -- there's no reference to Meja or Korenica or the

9 events there, even though it is within the geographic backyard of his

10 security operative and despite the fact that the other witness,

11 Nike Peraj, identified this same security operative, individual, as being

12 an eye-witness with him to bodies.

13 Accordingly either Nike Peraj cannot be fully believed or the

14 locals in Djakovica, including Vasiljevic's security organ were hiding the

15 crimes even from their superiors; thus, there's no way that Lukic would be

16 privy to this information, if indeed it was hidden from him. And indeed

17 the Prosecution has not presented evidence stating otherwise, stating that

18 this was reported to him or known to him.

19 Izbica, another alleged killing site. It should be noted that the

20 evidence adduced could not be used to properly identify the perpetrators.

21 Indeed, Milazim Thaqi, at transcript page 2319, lines 11 through 13,

22 indicated quite clearly that the persons involved in the shooting were

23 paramilitary and not police. Now, K25 testified that the police uniforms

24 in use were so immediately recognisable and marked as being police that

25 when you were close enough to see a person in camouflage uniform you could

1 tell if he is a policeman. I believe that was in response to a question

2 from Judge Nosworthy at approximately transcript page 4768, lines 1

3 through 2.

4 Accordingly, insofar as the only evidence relating to the

5 perpetrators in Izbica cannot establish that the perpetrators were police,

6 there can be no appropriate basis for upholding a conviction against

7 Mr. Lukic.

8 Now, the same is true throughout the many incidents that were

9 alleged, both with respect to the other killings, with respect to

10 deportations, with respect to persecutions, et cetera. By way of example

11 it should be recalled that K63, who albeit suffered from visual acuity

12 problems and could not distinguish colours, was said by the OTP to attempt

13 to establish that police personnel in police uniforms sexually assaulted

14 and raped his wife. However, the actual victim, K62, was adamant that

15 although she did not know who the men were and what formation they

16 belonged to she was 100 per cent certain that the perpetrators were most

17 definitely not policemen and were not wearing police uniforms. Transcript

18 page 2285, lines 3 through 9. That is the type of evidence that the

19 Prosecution wishes to rely upon to convict my client.

20 On the other hand, we have other witnesses such as Agim Jemini,

21 for example, when talking about police being present misidentified the

22 uniforms of the police, citing to markings that could have not been

23 showing on police uniforms, and are not. In Mr. Jemini's case he spoke of

24 blue uniforms but with "a double-headed eagle" on the chest. Transcript

25 page 4273, lines 1 through 6. Now, the evidence has not shown that any

1 such police uniform exhibited. Other uniforms such as Witness Salihi at

2 transcript page 4213, lines 4 through 8, talking about the same region,

3 described black uniforms of the police.

4 Now, you will recall that Witness Byrnes and others testified

5 about the KLA-UCK and their own special police forces and, indeed, there

6 was testimony that the UCK forces had blue uniforms and that the UCK

7 utilised a double-headed Albanian eagle badge, which perhaps explains some

8 of the mysterious police references that victims testified to since the

9 uniforms and symbols don't add up to the Serbian MUP and therefore cannot

10 be the basis of Lukic's liability. Again, the evidence cannot withstand

11 the legal standards.

12 Now, the same is true for incidents -- there's another factor that

13 needs to be examined with respect to incidents relating to the

14 deportation, alleged forcible transfer, and alleged persecution that we

15 have heard, alleged -- that we've heard about. Bislim Zyrapi, as we have

16 heard from the submissions of my colleagues, testified that the KLA had a

17 policy of ordering civilians to vacate villages and go along with them as

18 part of their battle strategy. This evidence that my colleagues have

19 referred to already is supplemented by the sworn statement of

20 Ylmet Fondaj, Exhibit 6D76, a KLA commander from the Suva Reka region

21 whose wife testified for the Prosecution in this case. That exhibit also

22 describes the successful KLA strategy of ordering the civilians to flee

23 and then lying in wait for the Serbs to advance so they could be ambushed.

24 The culpability of the KLA in forcing people to leave their homes

25 was also confirmed by various KVM reports such as P680. The evidence does

1 not show that the movement of civilians and refugees alone had to give

2 notice of any crimes occurring or that, in fact, they were totally due to

3 crimes.

4 I would be remiss at this point if I did not mention one other

5 element that needs to be understood to gain an understanding of the

6 situation on the ground during the time-period of the indictment. The

7 activities of the OVK, the UCK, the KLA, and others. We heard references

8 throughout, in the testimony of Mr. Abrahams, for instance, and within the

9 testimony of Mr. Shaun Byrnes, about the organisation calling itself the

10 FARK, the -- FARK, F-A-R-K, Armed Forces of the Republic of Kosova, who

11 engaged in activities. Mr. Byrnes said that they were blamed by the KLA

12 for the bombing of the Panda Bar in Pec that were on the ground at the

13 same time and engaging in conflict with the KLA supporters. Likewise,

14 Mr. Byrnes, at transcript page 12241, lines 5 through 24, testified about

15 activities of the UCK-KLA in abducting and mistreating LDK supporters,

16 that is to say, supporters of Mr. Rugova's party. And indeed we did have

17 testimony from other witnesses about persons that were arrested by the KLA

18 who were ethnic Albanians from rival political factions.

19 We also have to take into account the movement of the KLA into the

20 urban sector and the urban fighting that took place that Mr. Phillips, for

21 instance, confirmed and testified as to. The Ministry of Interior

22 throughout all this had, therefore, multiple enemies that it was

23 confronted with. On the one hand, it had multiple groups of armed ethnic

24 Albanian insurgents, terrorists, drug smugglers, criminals, as we heard

25 Shaun Byrnes testify to; on the other hand, it had NATO, which was causing

1 a threat from the sky and the ever-present threat of land troops; and you

2 had a third enemy: Criminals of all ethnicities who were operating on the

3 ground and, indeed, the evidence shows that despite the situations the MUP

4 operated to uphold laws and arrest perpetrators of crimes, whoever they

5 were.

6 This brings us to the issue of volunteers that is alleged and is

7 one of the cornerstones of the Prosecution case in the indictment, the

8 alleged incorporation of volunteers into the MUP, the so-called Skorpions,

9 the Arkan people.

10 We heard from Witness Stoparic that, in fact, the Skorpions were a

11 legitimate reserve -- were legitimate reserve members of the SAJ Police

12 Unit. Accordingly, there can be nothing inherently illegitimate read into

13 their deployment. Further, as Stoparic made clear, the killings in

14 Podujevo by members of this reserve SAJ force were not ordered,

15 instigated, nor condoned by the police superiors present. And while the

16 perpetrators and their entire unit were verbally reprimanded and

17 physically sent away from Kosovo, police officers tended to the victims

18 and even saved a baby from one of the bodies. The evidence likewise was

19 clear through Witness Stoparic that the perpetrators eventually were

20 arrested and processed, leading to court convictions.

21 There is no evidence that Lukic was involved in the deployment of

22 this unit, but it should be pointed out that even Vasiljevic in his

23 testimony could not identify any other alleged crimes committed by this

24 unit following the reprimand, following the arrest of the perpetrators and

25 their redeployment into Kosovo.

1 Now, with respect to Arkan's men, the only evidence of note in

2 this regard is Vasiljevic again, who makes it clear and claims that he was

3 told by Rade Markovic that he had deployed a handful of men to Kosovo

4 under the RDB structure, again reserve JSO. Vasiljevic could point to no

5 known crime committed by the men, save the ordinary murders that the

6 evidence showed had been committed in Kosovska Mitrovica by reserve JSO

7 member Veselinovic who likewise was immediately arrested and processed and

8 convicted by the Serb authorities, despite being a member of the RDB and

9 JSO. Again as it was a DB unit there is no evidence of Lukic being aware

10 or otherwise involved in the deployment.

11 Now, if we move to 1998 -- and I believe, Your Honours, are we

12 close to the break?

13 JUDGE BONOMY: It is a very good time to break, Mr. Ivetic.

14 So we'll adjourn now and resume at 1.45.

15 --- Luncheon recess taken at 12.44 p.m.

16 --- On resuming at 1.46 p.m.

17 JUDGE BONOMY: Mr. Ivetic, please continue.

18 MR. IVETIC: Thank you, Your Honour.

19 Before I continue with my submissions, I do have one correction

20 for the transcript. At page 58 of today's transcript, line 2, I misquoted

21 the transcript page I was referring to from the Protic testimony. The

22 correct citation should be the transcript page 11399, not 299.

23 JUDGE BONOMY: Thank you.

24 MR. IVETIC: And now I will embark on the final portion of my

25 submissions.

1 I would just like to comment upon the allegations within the

2 indictment which repeatedly refer to my client's alleged knowledge of

3 crimes in 1998 conducted by MUP and other personnel. However, the

4 evidence on the record clearly established, as I've repeatedly said, that

5 Lukic did not come to his position at the MUP staff in Pristina until June

6 the 11th of 1998, thus his knowledge of events in Kosovo can only flow

7 from that date forward. I would remind the Court that as the allegations

8 in the indictment even set forth, Lukic was at the city SUP in Belgrade

9 from 1992 onwards through his -- through June of 1998.

10 The only real event in 1998 that could perhaps fall under the

11 penumbra of the Prosecution's assertions would be the Gornje Obrinje

12 event, but we've already heard testimony from various witnesses including

13 Jan Kickert at transcript page 11226, line 21, through 11227, line 14,

14 about the various efforts undertaken to investigate that event by the

15 Serbian authorities which were unsuccessful because of attacks and threats

16 from the UCK-KLA that held a base near Gornje Obrinje, and in fact we did

17 hear about a -- I believe it was a Red Cross vehicle that had been

18 destroyed by a KLA mine in that -- on that same road just a few days prior

19 to the attempted investigation. So it must be stressed that the only

20 evidence on record of any type of events from 1998 that are enumerated in

21 the indictment would be this Gornje Obrinje that shows that the

22 authorities did attempt to undertake investigations and therefore, again,

23 there's not this nefarious undertone of doing nothing on the part of the

24 police.

25 Lastly I would just point out that there are, I believe, in my

1 submission, portions of the indictment for which not a single witness,

2 proper witness, was called and off the top of my head I can recite --

3 there was a reference to a mosque in Brestovac for which not a single

4 witness was called save for Mr. Riedlmayer to say the mosque was damaged.

5 There was not a witness provided for how the mosque was damaged. I

6 believe that's true for all the cultural monuments that were alleged to

7 have been damaged. And I believe that there are some sites that are on

8 the indictment for which not a single witness was called as well; the

9 village of Vojnike comes to mind as one of those. I believe there are

10 several more but in any event it's something that the Chamber should look

11 at to ensure that the Prosecution has actually called witnesses for

12 everything that is alleged in the indictment, as I submit they have not.

13 So respectfully, Your Honours, the evidence, all the evidence, not

14 just those dramatic examples I have highlighted here, when viewed in the

15 light of Rule 98 bis does not, respectfully, stand the test and does not

16 meet the Prosecution's burden of establishing a credible case against

17 Mr. Lukic for him to answer. Accordingly, the Lukic Defence would request

18 an acquittal of all counts directed against him.

19 Thank you, Your Honours.

20 JUDGE BONOMY: Thank you, Mr. Ivetic.

21 Mr. Hannis, before you start your submissions, are there any

22 revisals to the indictment that you have to propose?

23 MR. HANNIS: Your Honour, I don't have any at this time. We have

24 looked at particular lines in the crime base, but we had come to the

25 conclusion that there was some evidence regarding those. There might have

1 been one or two where there was a question about the wording of whether it

2 was a shelling or an aerial bombing or there was a question about whether

3 three villages named were correctly identified. But because we were

4 focusing at this stage on counts, I don't have any specific unproven

5 allegation to give to you.

6 [Trial Chamber confers]

7 JUDGE BONOMY: Can you give us an indication of how you intend to

8 go about responding then, Mr. Hannis. Have you a pattern to this

9 response? Are you going to take them accused by accused or are you going

10 to take it count by count or what?

11 MR. HANNIS: I intended to address that first thing in my comments

12 to you.

13 JUDGE BONOMY: Very well. Please continue.

14 MR. HANNIS: Thank you, Your Honour.

15 It really is an honour for me to address Your Honours at this

16 point. For a fellow who started his prosecutorial career in a little town

17 in Arizona doing speeding tickets and DWIs to speak to Your Honours at the

18 International Tribunal for war crimes is a privilege. Both Mr. Stamp and

19 I will be addressing you, Your Honours. I'm going to go first.

20 I'm going to address the following matters: I'm going to speak,

21 first of all, about the 98 bis standard, give you a very brief overview of

22 the counts in this case; I'll talk about the joint criminal enterprise, as

23 we've alleged it; In connection with that, I'll discuss a little bit about

24 the Joint Command; I'll talk about Article 7(1) responsibility in general;

25 I'll talk about the crime base; and I'll speak specifically about three of

1 the accused are military accused General Ojdanic, General Pavkovic, and

2 General Lazarevic; and I'm just going to speak one time so we won't be

3 popping up back and forth.

4 When I'm done sometime tomorrow, Mr. Stamp will address the issues

5 of Article 7(3) responsibility in general and the lack of punishment.

6 He's talk about the bodies evidence. He'll talk about the other three

7 accused, Mr. Milutinovic, Mr. Sainovic, and Mr. Lukic. Thank you.

8 Now, one thing that we are in general agreement with our learned

9 friends about is the standard of Rule 98 bis. The rule, as you know, was

10 changed in 2004 and now the focus is on counts rather than charges. The

11 standard to be applied in respect of each of the five counts in this

12 indictment which are deportation; forcible transfer; murder, two different

13 ways, murder as a crime against humanity and murder as a violation of the

14 laws or customs of war; and persecutions. The standard is whether there

15 is evidence on record which, if accepted, if believed by you and taken at

16 its highest could lead a reasonable trier of fact to be satisfied beyond a

17 reasonable doubt of the guilt of the accused on the particular charges.

18 At this stage the question is not whether there's evidence

19 contrary to the Prosecution's case on record. And we've heard a lot of

20 talk about that but that's not the standard at this stage. The

21 Trial Chamber is: "Required to assume that the Prosecution's evidence was

22 entitled to credence unless incapable of belief." And I'm quoting from

23 the Jelesic case from the appeal judgement of 5 July 2001. At this stage

24 of the proceedings, it's not the task of Your Honours to make assessments

25 of credibility of witnesses, to weigh the evidence, or to resolve

1 conflicts or inconsistencies in the evidence. As I said before, the only

2 exception is for evidence so inherently incredible that no reasonable

3 fact-finder can rely on it. And we say there is no such evidence relied

4 upon by us to support the five counts at issue.

5 In other words, all evidence that's not inherently incredible

6 should be viewed in the light most favourable to the Prosecution. Based

7 on that standard, we say there's more than ample evidence in the case from

8 which a reasonable Trial Chamber could find each and all of the accused

9 guilty of all five counts beyond a reasonable doubt.

10 Now --

11 JUDGE BONOMY: Before you move from that subject I have just one

12 question I want to have your comment on. The Defence also rely, so far as

13 the case depends, on circumstantial evidence on the -- the apparent rule

14 that we have that before there can be a conviction based on circumstantial

15 evidence, guilt must be the only reasonable interpretation of the

16 evidence. So in other words, if there's another reasonable

17 interpretation, a finding of guilt can't be made. Do you see that also as

18 a matter for the Trial Chamber at this stage?

19 MR. HANNIS: No, Your Honour, I don't. Because at this point the

20 question is whether a reasonable Trial Chamber could find based on this

21 evidence. And so I guess my argument at this point if it would be

22 reasonable to conclude from that evidence, maybe not the only reasonable

23 conclusion but it would be a reasonable conclusion that at this point we

24 can proceed on. You don't have to find it's the only reasonable

25 conclusion at this stage.

1 JUDGE BONOMY: Thank you.

2 MR. HANNIS: Thank you.

3 Now, with regard to the charges in the indictment, as you know,

4 Your Honours, this case we've said from the beginning is principally a

5 case about deportation. Our principal submission regarding that is that

6 the crimes charged in the indictment were committed pursuant to a common

7 plan, a design, or purpose. It was a joint criminal enterprise to which

8 these accused were a part. They were members of that joint criminal

9 enterprise.

10 Now, you've heard much argument about the fact that there is no

11 document, there is no plan, but I submit to you you shouldn't expect one.

12 Since the Nuremberg trials after World War II, I think anyone who's likely

13 to engage in war crimes was not likely to put it down in writing anymore.

14 It's not the kind of thing that people will sit around and brag about or

15 write about.

16 And it is something that, we say, is shown by all kinds of

17 evidence. I'll go through that in a moment.

18 There are three prongs to our argument in this regard. First, we

19 say there is ample evidence at this stage from dozens of eye-witnesses and

20 dozens more who have second-hand evidence about the crimes charged that

21 they, indeed, were committed. We have bodies, murders were committed, we

22 have dozens of eye-witnesses who themselves were deported and have come to

23 court and told you about that.

24 Second, we say that it's clear from the scope and the nature of

25 these crimes committed in Kosovo that they weren't random acts. It wasn't

1 a matter of serendipity that these same kinds of crimes were happening in

2 location after location throughout Kosovo at and around the same time.

3 Rather, they were committed pursuant to a common plan, design, or purpose:

4 A joint criminal enterprise.

5 When these crimes are placed in the relevant context, we say

6 there's ample other evidence to prove that they were part of a joint

7 criminal enterprise, and that joint criminal enterprise had as its purpose

8 to alter the ethnic balance in Kosovo so that the Serbs could remain in

9 control of that province.

10 Thirdly, there is evidence that each and all of the accused

11 contributed to the execution of that joint criminal enterprise and that

12 they intended to further the aims of that joint criminal enterprise. I'm

13 going to talk about some of those issues in detail in a minute, but I want

14 to mention some very recent legal developments. I think Mr. Ackerman

15 made reference to the Brdjanin case, as well he might, and in light of

16 that we feel our case can be somewhat narrow with regard to the JCE. And

17 after I speak to that, Your Honour, I'm going to set out our position that

18 even if you were to find that there's no evidence that a reasonable

19 Trial Chamber could accept that each of these accused participated in the

20 joint criminal enterprise, we are then going to ask you to find that they

21 are responsible pursuant to Article 7(1) for ordering, planning,

22 instigating, or otherwise aiding and abetting the crimes charged in the

23 indictment; and alternatively, pursuant to Article 7(3), for their failure

24 to prevent the crimes from happening and/or to punish the perpetrators of

25 the crimes.

1 And in regard to that, Your Honour, I might note one other matter

2 regarding 98 bis and the standard at this stage of the proceedings. Two

3 recent cases have noted that the amended version of Rule 98 bis: "Does

4 not require evidence capable of establishing each and every allegation or

5 form of liability, that is criminal responsibility, pleaded in respect of

6 a count to support a conviction on a count. The Prosecution need only

7 ultimately succeed in proving one of the forms of criminal responsibility

8 it relies on for there to be a conviction on a count." The quote is from

9 Judge Moloto in the Martic decision on the 3rd of July, 2006, at pages

10 5960 and 5961 of the transcript in that case. And he was quoting from the

11 earlier Mrksic Trial Chamber decision.

12 And now I would like to address briefly the scope of our JCE

13 allegations following the Brdjanin appeal judgement from the 3rd of April

14 of this year. In Brdjanin, as Your Honours are aware, the Trial

15 Chamber -- the Prosecution alleged the Trial Chamber had erred in law, in

16 holding that persons who carry out the actus reus, the hands-on

17 perpetrators of the crimes, had to be members of the JCE. The Appeals

18 Chamber granted that ground of appeal, and in so doing they adopted,

19 Your Honour, a portion of Judge Bonomy's separate opinion in the decision

20 on General Ojdanic's motion challenging jurisdiction previously filed in

21 this very case.

22 The Appeals Chambers held that what matters is not whether the

23 person carrying out the actus reus, the physical perpetrator, was a member

24 of the JCE, but whether the crime in question was a part of the common

25 purpose. The person carrying out the actus reus need not know of the JCE,

1 but if there's evidence that they had such knowledge it could be a factor

2 in deciding whether the crimes form part of the common criminal purpose.

3 To hold a member of the JCE responsible for crimes committed by

4 persons who were not members of the JCE, it has to be shown that the crime

5 can be imputed to a member of the JCE and that the member acted in

6 accordance with the common plan. What we have to do is establish a link

7 between the crime and the member of the JCE, and it's a matter that is to

8 be assessed on a case-by-case basis depending on the particular facts in

9 that case. And frankly, Your Honour, we think that's a very logical

10 common sense approach to dealing with these kinds of crimes. In modern

11 war, as Mr. Ackerman talked about, these kind of crimes carried on such a

12 grand scale over such a large amount of territory to try and say that the

13 foot soldier on the ground with a rifle is in some sort of agreement or

14 common enterprise with the president of a country we think is contrary to

15 common sense.

16 When the accused or any other members of the JCE in order to

17 further the common criminal purpose, which here we say was to alter the

18 ethnic balance in Kosovo, to maintain Serbian control, they use a person

19 or persons to carry out the physical perpetration, the actus reus of the

20 crimes which form part of the common purpose; and those persons carry out

21 some other crime or different crime, the members of the JCE are still

22 responsible for those crimes. And in our context, Judge, I'm talking

23 about murders because we say the primary plan was deportation; altering

24 the ethnic balance by getting these people out. But if in the course of

25 doing that they commit murders, we say that the members of the JCE can be

1 responsible if those murders were, number one, reasonably foreseeable that

2 they might be perpetrated by one or more of the persons being used to

3 carry out the deportations forming part of the common purpose; and number

4 two, that the accused willingly took that risk. In this context,

5 willingly taking the risk means that the accused acted with the awareness

6 that such a crime was a possible consequence of implementing the

7 enterprise and they decided to continue in the enterprise.

8 Paragraph 20 of our indictment, Your Honours, sets out that there

9 was a JCE in which these six were members. We pled our JCE 1 in two

10 alternative formulations. In the first we allege that the members of the

11 JCE were the accused, other named individuals, including Rade Markovic

12 and: "Unidentified persons who were members of the command and

13 coordinating bodies and members of the forces of the FRY and Serbia."

14 Alternatively, we allege in our indictment, that the accused and

15 other named individuals were members of the JCE and that they "implemented

16 the objectives of the joint criminal enterprise through members of the

17 forces of the FRY and Serbia whom they controlled to carry out the crimes

18 charged in the indictment."

19 In light of the appeals judgement in Brdjanin, Your Honours, we

20 intend now to only proceed on the basis of that alternative articulation,

21 that these six members of the JCE used members of the forces of the FRY

22 and Serbia that they had control over to carry out the deportations,

23 forced transfers, murders, and persecutions.

24 JUDGE BONOMY: When you opened this part of your submission and

25 referred to what Mr. Ackerman said, you gave me the impression that

1 somehow or other Brdjanin had made your task more difficult, at least

2 that's what you were going to say, but is it not, in fact, the opposite?

3 MR. HANNIS: No, I think it makes our task easier.

4 JUDGE BONOMY: Yeah.

5 MR. HANNIS: But to avoid any misunderstandings we are maintaining

6 our other submissions regarding the JCE, Your Honour, including the

7 alternative allegation in paragraph 21 where we say with regard to the

8 crimes charged in Counts 3 through 5, that is, murder the two ways and

9 persecutions, were natural and foreseeable consequences of the

10 deportations and --

11 JUDGE BONOMY: That's the third version of JCE?

12 MR. HANNIS: Yes, that's JCE 3 and that's an alternative force

13 that we still are relying on.

14 Now, with regard to JCE 1, I think Mr. Ackerman made reference to

15 this, regarding the actus reus of JCE we need to show, first of all, that

16 there were a plurality of persons involved in the commission of the crime

17 that is accused; number two, that they acted on the basis of a common

18 plan, design, or purpose which amounted to or involved the commission of a

19 crime provided for in the Statute, and maintaining control through

20 altering the ethnic balance involved the commission of deportations and

21 forcible transfers in this case; and that one or several of the

22 co-perpetrators used the physical perpetrators to carry out the crimes.

23 Those co-perpetrators controlled organised structures of power and used

24 its members as tools. And we're referring primarily there to the VJ and

25 the MUP. And then the accused participated in this common design, either

1 physically or through the use of others.

2 In real life, in the real world, Your Honour, one of the other JCE

3 members named in our indictment is Slobodan Milosevic and in this JCE that

4 we've alleged he's in some way the sun around which these other planets

5 revolve. But they're all members of the JCE, they all had separate and

6 distinctive roles to play and separate and distinctive contributions that

7 they make which we'll discuss in more detail when we talk about each of

8 the individual accused. Mr. Milutinovic was president of Serbia, he had

9 previously been a foreign minister, had lots of previous dealings with

10 internationals, and he was the face man in many aspects of this case who

11 was put forward to deal with internationals. Mr. Sainovic was the point

12 man in Kosovo and he was the hands-on political member in Kosovo

13 coordinating the activities of the joint criminal enterprise.

14 General Ojdanic, Pavkovic, and Lazarevic were those members who

15 had control over the VJ and subordinate forces that carried out many of

16 the physical acts on the ground.

17 And Mr. Lukic from the MUP, who did the same thing in regard to

18 police activities.

19 We also need to show that the accused intended to perpetrate the

20 crime, this being the shared intent on the part of the co-perpetrators,

21 and we'll talk about evidence showing intent in a moment.

22 I do want to talk about the general evidence that supports our

23 claim that there was a joint criminal enterprise, that there was a common

24 plan or purpose in which they shared. The Trial Chamber has heard

25 evidence about how more than 800.000 Kosovo Albanians were deported to

1 other countries, thousands were killed, Kosovo Albanian property was

2 looted, dwellings and mosques were burned and destroyed, and countless

3 people were beaten, intimidated, many women were raped, all as part of

4 this campaign which was designed, we say, to alter the ethnic balance in

5 Kosovo by removing substantial members of the Kosovo Albanians.

6 These crimes primarily began within days of the first NATO

7 bombings on 24 March 1999 in what we say was a systematic fashion all over

8 Kosovo. These widespread synchronised crimes all across the province

9 followed very similar patterns, and we say that in itself is some evidence

10 that a Trial Chamber could accept as proof that they were committed

11 pursuant to a common plan, design, or purpose.

12 Mr. Ackerman yesterday made reference to the 13 Joint Command

13 orders that are in evidence in this case, and at the end of the case we'll

14 hope to do this. If you sit down and read those Joint Command orders

15 identifying what forces are to engage in combat operations in what areas

16 and on what dates, you will see that they closely reflect our crime sites

17 and where people fled from, were driven out of, and where the killings

18 occurred.

19 The sheer scale of these deportations, because you've heard some

20 evidence about the population and how many people actually lived in Kosovo

21 at the time, the sheer scale suggests that they must have been the result

22 of a plan or a design or a purpose. In that regard we refer you to

23 Exhibit P2229, the statement of Fred Abrahams; P2438 and the attachment C

24 to that statement which is P738 of a member of an international

25 humanitarian organisation, which show that the number of refugees were

1 around 850.000 by June of 1999.

2 Patrick Ball's report concludes that the refugees in Kosovo had

3 not left randomly. We say a Trial Chamber could on such evidence find

4 that the reason the refugees left Kosovo was that they were forced to

5 leave by the forces of FRY and Serbia. That's not the only evidence you

6 have about that. You have the statements of many of the deportees

7 themselves, the victims of these crimes.

8 One that I think you'll probably remember was Sadije Sediku, she

9 was the young woman who appeared before you here in a wheelchair. She and

10 her family lived in the area near Kosovska Mitrovica and she told you how

11 on the 14th of April police came to their home and told them they had to

12 leave immediately. They were forced out. They travelled long distances

13 across Kosovo to the west. Eventually the police told them to stay in

14 another abandoned village, where they stayed for several days before

15 Ms. Sediku was shot by who she says were police, Serbian police, that was

16 the injury that caused her to end up in the wheelchair that she was in

17 when she testified, and that happened on the 6th of May.

18 You heard several similar accounts -- and then eventually with her

19 wound in the back of a wagon behind a tractor she and her family were

20 forced to go to Albania.

21 You heard several similar accounts from other witnesses

22 Dr. Gerxhaliu in Vucitrn, Edison Zatriqi from Pec, (redacted)

23 (redacted), Halit Berisha from Suva Reka, all of whom told you that they were

24 forced to leave their homes between, the 24 and 28 March, in the first

25 four days of the war. Later in April, you had witnesses Lizane Malaj,

1 Merita Deda from the Korenica-Guska-Meja area who said tell you about how

2 they were forced out of their homes when police and military came to their

3 village, shot and killed some of their family members, and told them to

4 leave to go to Albania.

5 Your Honours could also make such a finding based on witnesses

6 like Maisonneuve, who testified that he spoke to numerous refugees in

7 Albania who had told him how they had been told to leave their houses on

8 short notice by the Serbian authorities and Colonel Ciaglinski, who also

9 was told similar accounts when he visited the border area, I believe in

10 Macedonia.

11 Other categories of evidence, Your Honours, which we say support

12 the allegation of the JCE and the existence of a plan include some of the

13 historical background in this case. You heard from Baton Haxhiu,

14 Adnan Merovci. Think Veton Surroi talked about it a little bit as well,

15 about what had been happening in Kosovo from the early 1980s and a long

16 history of problems and unrest and what we say were ever harsher and more

17 restrictive methods directed towards the Kosovo Albanians in Kosovo.

18 And, we say, the evidence shows that those measures had not worked

19 and in some ways they had backfired, that Mr. Rugova, who was head of the

20 LDK party that came into existence and more moderate than some of his

21 successors eventually lost his leading position, in part I think because

22 of a lack of success in reaching any kind of progress and more violent,

23 more aggressive elements in Kosovo came into being. It seemed the harder

24 that Serbs pushed, the worse the problem got.

25 We say that is some evidence of why you can find that there was a

1 plan. It was frustration, we say, on the part of Slobodan Milosevic and

2 his colleagues with not being able to resolve the problem, being under

3 intensive international pressure about how they were trying to solve the

4 problem. And we say that's part of what led to this solution, the

5 solution that Mr. Milosevic made reference to in October 1998 in the

6 meeting with General Clark and General Naumann where he said, We'll find a

7 solution for this problem in spring of 1999.

8 Now, before the NATO bombing we have statements of several Serbs

9 which we say reflect on the issue of a plan and the existence of joint

10 criminal enterprise. Baton Haxhiu tells you that in 1997 he was at a

11 meeting where he got information from a Serb in the security service that

12 they had a scorched-earth plan for Kosovo. Mr. Ratomir Tanic told you how

13 in the second half of 1997 he was told by Mr. Milosevic that the problem

14 with the Kosovo Albanians was that they supported the KLA and that the

15 problem was the number of Albanians, the sheer number, that had to be

16 brought down to a reasonable figure.

17 You also heard from Mr. Tanic, and I think it's also referred to

18 in one of Mr. Petritsch's diplomatic cables, that in October 1998

19 Mr. Stambuk was saying that Yugoslavia, the FRY, wouldn't mind a few NATO

20 bombs, that the bombing would be a good opportunity to cleanse the

21 Albanians. This is from Mr. Tanic's testimony at transcript 6376 and in

22 his statement, Exhibit 1D44, at paragraph 94.

23 You also have evidence Mr. Naumann told us in his testimony in the

24 Milosevic case at transcript 6989 to page 6991, which is in evidence as

25 Exhibit P2512, that Milosevic told him and Clark that there were about

1 900.000 Albanians and about 600.000 other ethnic groups in Kosovo. That

2 was quite different from the numbers that they were aware of from other

3 sources. And in the context of this in his testimony in Milosevic,

4 Mr. Naumann said Sainovic expressed concern about the reproduction rate of

5 the Albanians.

6 In October of 1998, Naumann told us about that meeting where

7 Mr. Milosevic had his outburst after the signing of the October agreements

8 and said a problem -- the Kosovo problem, a solution would be found in the

9 spring of 1999 and it would be a final solution. It would do, as in 1946

10 in Drenica, which as Milosevic explained was getting them together and

11 shooting them.

12 Mr. Milutinovic at Rambouillet in February of 1999 made a

13 statement that Mr. Petritsch recounted as him indicating that bombing by

14 NATO, bombing of Serbia by NATO, would lead to massacres. And he

15 understood that to mean massacres of Kosovo Albanians.

16 And Exhibit P2307, which is the statement of protected witness

17 K73, who told us that General Pavkovic told officers at a -- at a briefing

18 or a meeting shortly before the war that as soon as the NATO bombs fall

19 they would have to "clean their back from Albanians." We say all this is

20 evidence that suggests that there was a plan to get rid of the problem, to

21 get rid of the Kosovo Albanians by driving them out.

22 Other evidence, we say, that supports this theory is the arming of

23 Serbs and the disarming of Albanians that occurred prior to the conflict.

24 Colonel Pesic, who testified at transcript page 7159, told us how

25 Albanians were not called-up for the Territorial Defence, only Serbs were;

1 he told us that when they learned that weapons no longer needed by their

2 army had been distributed to civilians for their own protection, he agreed

3 that most of those who had been so armed were only Serbs. And in Exhibit

4 P1415 you have the June 1998 order for arming and formation of village

5 defences in that regard. Pesic agreed that those armed were only Serbs.

6 On the other side, Exhibit P1203 from 15 October 1998 talks about

7 the continued MUP operations to collect weapons from Albanian villages.

8 So at the same time the Serbs are being armed, the Kosovo Albanians are

9 being disarmed.

10 Other evidence, we say, supports our submission that there was a

11 joint criminal enterprise being formed to carry out this common purpose or

12 plan, the Joint Command. I want to talk a little bit about the

13 Joint Command because everybody -- just about everybody's talked about the

14 Joint Command and as I understood it from the Defence some seem to be

15 suggesting still that there wasn't a Joint Command, at least not in 1999.

16 And I think it's interesting, Your Honour, to look at why there is so much

17 controversy about the Joint Command. We say it's clear from all the

18 evidence and documents that you've now heard that there really isn't a

19 serious question that there was a Joint Command in existence and

20 functioning, not just in 1998 but in 1999.

21 You'll remember Mr. Coo testified and one of the things he talked

22 about was the efforts we had made to get documentation from Serbia about

23 the Joint Command and the initial response, I believe he testified to, was

24 that there was only a Joint Command in 1998, and we got, through

25 General Pavkovic, the minutes of the Joint Command in 1998 between July

1 and October 1998, but the position was there was no Joint Command in 1999.

2 One of the exhibits that suggests that it did continue beyond

3 October 1998 is Exhibit P2166. This is the minutes of the operations

4 interdepartmental staff for the suppression of terrorism in Kosovo, a

5 meeting that was held on the 29th of October, 1998, the minutes are dated

6 the 2nd of November. We talked a lot about that, but I would encourage

7 Your Honours to take a close look at that document, read it thoroughly,

8 it's very illustrative of what the Joint Command had been doing. Many of

9 our accused were at that meeting. It was chaired by Mr. Milosevic, but

10 Mr. Milutinovic was there, Mr. Sainovic was there, General Pavkovic was

11 there, and General Lukic was there. General Ojdanic had not yet reached

12 the position of Chief of Staff, so General Perisic is at the meeting. But

13 there's great discussion of the work that the Joint Command has done

14 earlier in 1998 to combat terrorism in Kosovo and Metohija and there's

15 discussion about whether or not the Joint Command needs to continue to

16 exist, should continue to exist, and the assessment that the group reaches

17 is that it should. And we say the evidence clearly shows that it did.

18 Mr. Cvetic testified at transcript page 8051 that the

19 Joint Command was established in July 1998. He told you how that at a MUP

20 staff meeting on the 10th of July it was announced to them that it had

21 been created, it had been set up at the highest level, that it included

22 Mr. Sainovic, it included Dusko Matkovic, Milomir Minic, Sreten Lukic,

23 Nebojsa Pavkovic, Mr. Andjelkovic from the TEC, and David Gajic from the

24 Serbian MUP.

25 Now, we know from General Vasiljevic that on the 1st of June he

1 attended a meeting in Kosovo of the Joint Command, and he told you who

2 attended the meeting. Mr. Lukic -- General Lukic was there and

3 General Pavkovic was there, that the meeting was chaired by Mr. Sainovic.

4 So between October -- November 2nd, 1998, from the minutes that say it

5 should continue and the 1st of June, 1999, they are still meeting with

6 many of the same individuals, according to General Vasiljevic. But that's

7 not the only evidence you have about the existence of the Joint Command.

8 We have, I think, the 13 Joint Command orders that Mr. Ackerman

9 made reference to yesterday, and we urge you to look at those. They don't

10 have a signature; they only have a typed stamp that says, "Joint Command."

11 But if you'll look in the upper left where you see the information -- the

12 date of the document, you'll also see the number that we had explained to

13 us was an interior number, an internal number, for the agency that was

14 putting out the document. It's a sequential number. The first number is

15 the subject number or an -- and it's followed by a sequential number in

16 the year in which it's issued.

17 I think those documents that we have regarding Joint Command

18 orders beginning around the 22nd of March, 1999, I think the first one is

19 455-56. So you'll wonder where are the first 55. We eventually did find

20 the order 455-1, but that's an order signed by General Pavkovic in

21 February 1999 which is in the form of a directive. It's about a 40-page

22 document which is in the nature of a directive like you saw from General

23 Perisic in the summer of 1998. We say this shows the planning in

24 February. At the same time negotiations were going on in Rambouillet,

25 that the army was preparing for what was likely to happen after that. And

1 you'll see where those deployments are ordered. You'll see that they line

2 up with where the crimes occurred once the bombing had started.

3 We urge you to look closely at those orders.

4 Part of the Defence position has been: Well, there was no Joint

5 Command. And if there was, well, it wasn't a command, it was a

6 coordinating body and it didn't order anybody to do anything. But you

7 look at the orders themselves and they say, usually in the last paragraph,

8 it says: These operations, those that are set forth in the order, it says

9 these operations are to be commanded by the Joint Command. So it's not

10 just a coordinating body.

11 You'll see other references to the Joint Command in exhibits -- in

12 documents from the -- from the Supreme Command Staff for one; suggestions

13 from General Ojdanic and the Supreme Command, and he makes reference to a

14 particular Joint Command order and makes suggestions to how the 3rd Army

15 might want to make some adjustments to that order from the Joint Command.

16 So General Ojdanic and the Supreme Command Staff are aware of the

17 existence of the Joint Command and apparently satisfied with it. They're

18 not saying, You should ignore what the Joint Command is telling you to do,

19 just merely making suggestions. You also see a reference to it in a 25

20 May 1999 document from General Pavkovic. This relates to the issue of the

21 subordination of the MUP, and in this document - I'm trying to find the

22 number, Your Honour, I'll get that for you in a moment - in this document

23 General Pavkovic is complaining that the subordination of the MUP that had

24 been ordered by the Supreme Command Staff in -- around the 18th or 20th of

25 April, 1999, had not been complied with, that the MUP was not

1 subordinating itself, as had been ordered. And he is suggesting to the

2 Supreme Command Staff that they take steps to either make that happen or

3 otherwise let the command of MUP units revert to the MUP staff of Kosovo,

4 that through the -- through the Joint Command, as has been done up to that

5 date.

6 So it's clear that the Joint Command was in existence and that it

7 was more than a coordinating body. And the fact that everyone has worked

8 very hard on the Defence side, we say, to distance themselves from that

9 body suggests that it has more importance than they want you to know. We

10 think it is the body that effectively ensured the coordination and the

11 carrying out of the operations that were designed to effect the joint

12 criminal enterprise and its objective of forcing out the Kosovo Albanians.

13 And I'm reminded -- I apparently misspoke before when I referred

14 to 455-1, it is General Lazarevic's command or the Pristina Corps who

15 issued that order. I think I may have said General Pavkovic, and if I

16 did, I misspoke.

17 Other evidence regarding the existence of a plan and the existence

18 of the JCE we say you can find from the creation -- or from the removal,

19 I'm sorry, the removal and replacement of other individuals within the

20 army and the MUP. I'm talking particularly about General Perisic and

21 Jovica Stanisic and eventually General Dimitrijevic. As you know,

22 General Perisic was the Chief of Staff of the VJ in 1998, but as early as

23 the summer of 1998 we know that he was having some disagreements with

24 Mr. Milosevic about how the VJ was being used in Kosovo. He, in his

25 letter that's Exhibit 717 that he wrote in July of 1998, took issue with

1 certain practices that have gone on. He made reference to certain

2 individuals going around the chain of command. We think other evidence

3 indicates that was General Pavkovic. And he complained about

4 non-authorised persons controlling or directing the use of VJ units in

5 Kosovo. We think the other evidence indicates that there was probably

6 Mr. Sainovic.

7 And he says that the army should not be used in these kind of

8 operations, this interior fight against terrorism, unless one of the three

9 extraordinary states was declared: A state of emergency, a state of

10 imminent threat of war, or a state of war. And you'll see in some of the

11 discussions of the VJ collegium and the Supreme Defence Council that one

12 of the reasons for this was because of the international scrutiny that

13 Serbia was under at the time. There had already been one UN resolution

14 earlier in the year, there would be another one to follow before the end

15 of the year, about the violence in Kosovo. And Perisic was asking that

16 one of the states be declared so the army could be used that way.

17 Perisic was still on the job in October 1998 when the meetings

18 took place where General Clark and Naumann that led to the October

19 agreements, but in an earlier meeting in October you'll recall that when

20 General Naumann and General Clark complained to Mr. Milosevic about the

21 use of the 211th Brigade in Kosovo, Mr. Milosevic said, No, no, there

22 isn't any such unit and it's not in Kosovo and Mr. Perisic corrected him

23 and pointed out that, yes, indeed there was and it was in Kosovo. We say

24 that's another reason that led to the removal of Mr. Perisic. He was not

25 in agreement with the position that Mr. Milosevic had and other more

1 amenable persons were sought, we say, to be in that position so that the

2 plan that Mr. Milosevic and others eventually agreed upon could be carried

3 out.

4 Related to that in late 1998 and early 1999, we say there were

5 obstructions of negotiations. Mr. Tanic told you how that Milosevic

6 negotiated but at the same time he was preparing for war. Mr. Petritsch

7 told you at transcript page 10723 that Hill had a meeting with Milutinovic

8 on the 18th of February, which was absolutely unproductive. Milutinovic

9 is cited in the Austrian diplomatic dispatch at Exhibit 562 as being

10 intransigent in attempting to protract the negotiations.

11 Ambassador Vollebaek at transcript 9519 testified that between Rambouillet

12 and Paris the Serbs toughened their line and weren't willing to negotiate.

13 At the same time, we say, Serbs were preparing for a spring

14 offensive, the very spring offensive that Mr. Milosevic had talked about

15 in October 1998. Exhibit P2512 is the testimony of General Naumann in the

16 Milosevic case. At transcript 6989 Naumann recalled Milosevic stating

17 that they were going to take care of the problem in the spring. He also

18 in his statement and referring to Exhibit P1767, he said: "Looking at the

19 scale and the magnitude of the activities that took place in Kosovo during

20 the spring of 1999, there would have had to have been months of

21 preparation." He says: "This inference can be drawn because of the

22 coordinated large-scale movement of forces that took place." This is

23 consistent with, we say, the -- the order or the directive issued by

24 General Lazarevic in February of 1999, and that order is Exhibit P2808.

25 It's an order for breaking apart and destruction of the SDS in the region

1 of Malo Kosovo, Drenica, and Malisevo. Right during the middle of the

2 Rambouillet negotiations.

3 You also have the evidence and testimony of Colonel Crosland at

4 P2645, the testimony of Ciaglinski in Exhibit P2489, the evidence from

5 General DZ, who all talk about what they saw as a build-up of Serb forces

6 and the bringing in of new and better equipment, the higher-grade tanks,

7 the number of Serb forces going from a deployment of three companies to 15

8 by the time that DZ left. Similarly, Adnan Merovci told us that the LD

9 activists who were watching the activities at the time estimated that as

10 many as 30.000 troops or 30.000 VJ and MUP had recently entered Kosovo

11 during the time between October 1998 and March 1999.

12 There's also the general pattern of crimes which we talked about

13 before, but related to that there's one thing that we think is important

14 for you to bear in mind as well. A number of crime base witnesses have

15 told you about how when they were forced to leave Kosovo and as they were

16 crossing the border or sometimes on their way from their home to the

17 border, that their identity papers were taken away from them, sometimes

18 torn up in front of them, other times burned in their presence, and the

19 licence plates from their vehicles were removed.

20 We say this was part of the bigger plan, not only to remove them

21 but to be sure that they can't come back. We say the way this works is

22 that these Albanians are forced to leave, and if after the conflict for

23 some reason they try to come back they don't have any identity papers to

24 confirm that they were originally from Serbia and from Kosovo and they

25 could be refused admission. That would help achieve the desired aim of

1 maintaining Serb control in the province because you could keep out those

2 hundreds of thousands of Albanians that you physically forced out earlier.

3 K89 told you that when his unit went up he was told by his major

4 that, for one, not a single Albanian ear was to remain in Kosovo and that

5 their identification papers were to be torn, so as to prevent them from

6 coming back - precisely what we claim. So there is some evidence which

7 you can rely on. That was at transcript page 9124.

8 And Exhibit P2677, which is the testimony of protected witness

9 K54, he was told by a soldier who had been present at the border crossing

10 at Vrmice that the MUP confiscated the identification documents of

11 Albanians and set the documents on fire, that they had orders to do so, so

12 that in case those people came back they would have no proof of ever

13 having lived in Kosovo. And some of that ID document testimony is

14 corroborated by others, not just the crime base victims. Maisonneuve told

15 us that he spoke to numerous refugees when he was head of the refugee task

16 force in Albania and said they all told him they had been forced to leave

17 by the Serbian authorities, and at the border their identity documents

18 were confiscated and licence plates from their vehicles were removed.

19 That's at transcript page 11086.

20 Colonel Ciaglinski in Milosevic also observed people crossing the

21 border into Macedonia and that he tells us in -- at transcript page 3215

22 that he was told by these people that there most of them had had their

23 identity cards taken from them at the train station before they were

24 forced to walk across into Macedonia.

25 Ambassador Vollebaek, likewise, told you at transcript 9523 that

1 he was at the border and met some refugees whose ID papers and licence

2 plates were taken away and destroyed. This is also consistent and

3 supportive of the findings of Patrick Ball in Exhibit 1509 in his report

4 when trying to decide whether these people left because of NATO bombing,

5 because of KLA activity, or because of actions of the Serb army and

6 police. We're not saying that some of these people didn't leave because

7 of the bombing, we're not saying that some of these people didn't leave

8 their villages because they were told to do so by the KLA in some

9 instances. But we're saying there is evidence upon which you could, as a

10 reasonable trier of fact, find beyond a reasonable doubt that they left

11 because of the violent actions and the force of the Serb police and VJ.

12 Now, with regard to the purpose of this criminal enterprise we say

13 all that evidence, each of the different categories, we say, could support

14 your finding, but when you put them all together you have more than enough

15 to meet the standard at this phase of the case where you're making a 98

16 bis determination.

17 I'm sorry, Your Honour, may I have a moment.

18 Related to my comments earlier about the Joint Command, there are

19 two other bodies that I want to briefly mention that I think are important

20 for your understanding about whether or not there was an existence of a

21 joint criminal enterprise and the participation of individual accused

22 therein. One issue was raised regarding the Supreme Defence Council and

23 the Supreme Command. Mr. Stamp will talk some more about that in

24 connection with his comments on Mr. Milutinovic, but we would note that

25 there are a number of items in the evidence which rebut the Defence

1 argument that there was no such body as the Supreme Command.

2 One of those documents, Your Honour, is an interview of

3 General Pavkovic, Exhibit 949, at page 26 of that interview, he's asked

4 about the Supreme Defence Council, which he indicates is made up of the

5 president of Yugoslavia and the presidents of the republican units and he

6 indicates that is the body from the time of peace. And the

7 Supreme Command is formed by including the adequate or relevant military

8 personnel who perform their duties. So the following composition: It has

9 Supreme Commander, also the head of the headquarters of the Supreme

10 Command, and also it has assistants for different departments, like for

11 morale, for security, et cetera. He says, when asked: "At what point was

12 the Supreme Command come into effect?"

13 He says: "The Supreme Command comes into effect when the war is

14 declared."

15 And that was immediately after the Federal Assembly declared the

16 state of war he thinks on the 23rd or 24th of March.

17 The investigator asked: "So was the president -- so the president

18 was involved with the Supreme Command and the presidents of the republic

19 as well. Is that correct?"

20 General Pavkovic answers: "Yes."

21 "Can you name the other two, please?"

22 His answer: "Milutinovic and Djukanovic."

23 The investigator asked: "Did they both participate actively in

24 the Supreme Command?"

25 Pavkovic answers: "I saw Milutinovic but not Djukanovic."

1 So from one of our accused we have existence of the

2 Supreme Command but in other documents --

3 JUDGE BONOMY: Can I ask you to comment on the extent to which

4 that can be used as evidence. Is it not evidence restricted to the case

5 against Mr. Pavkovic?

6 MR. HANNIS: Your Honour, I know that's on argument to be made. I

7 know this exhibit was admitted purport to your order of October 10th,

8 2006. There was -- there was no limitation put on the evidence. I don't

9 know what your ruling will be if there's a Defence argument about how it

10 can be used. We say it certainly can be against General Pavkovic because

11 we say because they're charged in a joint criminal enterprise that you

12 should be able to consider the evidence. We say it's also corroborative

13 of other evidence.

14 JUDGE BONOMY: But is it not a traditional principle that evidence

15 which is obtained outwith the presence of an accused person which he is

16 not in a position to challenge since there's no saying whether Pavkovic

17 will give evidence or not here, is it not the case that that sort of

18 evidence can only be admissible against the person who makes the

19 statement?

20 MR. HANNIS: Your Honour, I know in my jurisdiction that is the

21 general principle.

22 JUDGE BONOMY: Yeah.

23 MR. HANNIS: And that when you have co-accused and when you have a

24 statement from one, if his statement incriminates the other person, if we

25 as the Prosecution are trying to introduce that evidence, we either have

1 to have separate trials or we have to redact the statement in some fashion

2 so, you know, it will make reference to an unknown person as opposed to

3 the named co-accused, et cetera.

4 JUDGE BONOMY: In Scotland, we tend simply to tell juries to

5 ignore it in relation to other accused, but some take the view that that

6 has an effect of throwing a skunk into the jury box and then telling them

7 to ignore the smell.

8 MR. HANNIS: Yes.

9 JUDGE BONOMY: Here, obviously, we can cope with the distinction,

10 but it may be quite important I think, even in the 98 bis context, to be

11 clear in our minds against whom a statement of this nature can be held.

12 MR. HANNIS: Well, Your Honour -- as I wonder -- I pose the

13 question, I guess, does it make a difference if the statement is about a

14 criminal act versus the existence of a particular governmental body? You

15 know, if it's about a fact that is maybe neutral on its face as opposed to

16 something that's clearly inculpatory, does that make a difference?

17 Although I understand the argument that something that is seemingly

18 neutral on its face a good lawyer can make a connection to another item

19 and another item and another item and pretty soon it's incriminating that

20 Jim was wearing a green shirt on Saturday night.

21 JUDGE BONOMY: I think that that argument depends on the evidence

22 having no positive value in support of your case. I think the principle

23 would extend that far, that something obtained outwith the presence of an

24 accused and not open to challenge because it comes from a co-accused would

25 not be admissible in support of the Prosecution case.

1 MR. HANNIS: Yeah, I -- can I continue on this for just another

2 moment?

3 JUDGE BONOMY: Yes.

4 MR. HANNIS: Because I'm trying to think of the law in my own

5 jurisdiction that -- may I consult for a moment?

6 JUDGE BONOMY: Yeah.

7 [Prosecution counsel confer]

8 [Trial Chamber confers]

9 JUDGE BONOMY: Mr. Hannis.

10 MR. HANNIS: Your Honour, I'm thinking about, for example, our

11 Rule 92 quater which allows for written evidence of an unavailable witness

12 because he's dead or because he can't appear because of physical or mental

13 reasons, and that if we have written evidence from that witness we can

14 offer it. And if the Trial Chamber finds that the statement was taken

15 under circumstances or given under circumstances that tend to show it's

16 reliable, that you can consider that evidence. But in our rule the

17 definition -- in our rule in the Tribunal the definition of unavailability

18 doesn't include a co-accused or someone who refuses to testify because his

19 testimony might incriminate him.

20 In my jurisdiction we have an exception to the rule against

21 hearsay that we have, for example, a statement of an unavailable witness,

22 either because he's refusing to testify because he might incriminate

23 himself or because he's fled the jurisdiction, but he gave a statement at

24 the time and at the time which he gave it the statement he gave was

25 against his own interest, whether that's his criminal interest or

1 pecuniary interest that gave it some indicia of reliability, it could be

2 used.

3 JUDGE BONOMY: Again, that's a fairly common exception nowadays,

4 Mr. Hannis. I think it's a developing exception. I'm interested in the

5 question of just how widespread is the practice of excluding this sort of

6 evidence against an accused who can't challenge it. Indeed the very fact

7 that we have the rule you've referred to, 92 quater, really works against

8 your argument. The fact that that rule is necessary. Indeed, I'm quite

9 certain that many domestic jurisdictions are far more lenient in their

10 acceptance of the evidence of deceased witnesses, for example, than this

11 jurisdiction is.

12 MR. HANNIS: Yeah.

13 JUDGE BONOMY: Anyway, if there is anything more you want to say

14 in reflexion on this, that can no doubt be said tomorrow and we can

15 proceed with the rest of your submissions just now.

16 MR. HANNIS: Yes, I will take a look at that and if I have

17 something additional I will bring it to your attention tomorrow.

18 But a couple of other documents we say reflect the existence of

19 the Supreme Command or the continued existence and functioning of the

20 Supreme Defence Council are found in Exhibit 1495 which was admitted on

21 the 20th of March. It's from the 24th of May, 1999, and it makes

22 reference to the Supreme Command undertaking a particular action, not the

23 Supreme Command Staff, not the supreme commander. I think Exhibits 1480,

24 1480, and 1489, similarly have references to the Supreme Command. These

25 are all after the 23rd of March, 1999.

1 And I believe it's Exhibit 1481 dated the 9th of April, 1999,

2 which is from General Ojdanic as head of the Supreme Command Staff and

3 outlining detailed preparations for a possible invasion/conflict with

4 NATO. And one of the things that it provides for I think it's at page 5

5 of the English it says: "At the level of the VSO," which is the Supreme

6 Defence Council, "and the General Staff, organise communications and

7 cryptographic communication with the president of the Republic of Serbia

8 and the president of the Republic of Montenegro." Which would suggest

9 that the Supreme Defence Council is continuing to exist. We say that the

10 reference to "Supreme Command" is probably the wartime informal

11 designation that's being used.

12 In Exhibit P1996, staff -- the MUP staff minutes for a meeting on

13 the 7th of May, 1999, attended by Mr. Sainovic and he spoke to the

14 assembled MUP staff and told them about an order issued by the supreme

15 commander, Slobodan Milosevic, which should be relayed to all police

16 commanders as a task assigned by the Supreme Command. We also say,

17 Your Honour, that logic dictates that if General Ojdanic is the head of

18 the Supreme Command Staff, there must be some Supreme Command that that

19 staff is serving.

20 And, as I said, Mr. Stamp may have a couple of other items to

21 bring to your attention when he discusses Mr. Milutinovic tomorrow.

22 Your Honours, I would like to request if we could break early

23 today. I know it's 20 minutes from time, but I'm -- frankly I'm not

24 feeling very well now and I think I could do better if I could resume in

25 the morning. I think there's a chance that we could spill into Monday

1 with or without these 20 minutes, but I would make that request at this

2 point in time.

3 [Trial Chamber confers]

4 JUDGE BONOMY: Very well, Mr. Hannis. We have a similar length of

5 day tomorrow. We have, I think, only half a day on Monday and we've

6 arranged a similar length of day on Tuesday just in case. But the

7 anticipation appears to be completion on Monday.

8 MR. HANNIS: I think that's right, Your Honour.

9 JUDGE BONOMY: Very well. We'll resume at 9.00 a.m. tomorrow.

10 MR. HANNIS: Thank you.

11 --- Whereupon the hearing adjourned at 3.09 p.m.,

12 to be reconvened on Friday, the 4th day of

13 May, 2007, at 9.00 a.m.

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