1 Friday, 4 May 2007

2 [Rule 98 bis Hearing]

3 [Open session]

4 [The accused entered court]

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

6 JUDGE BONOMY: Please continue, Mr. Hannis.

7 MR. HANNIS: Thank you, Your Honour.

8 There were two matters I wanted to address before I got back to

9 the substance of my remarks. One was regarding something I said

10 yesterday about the Joint Command and our efforts to obtain documents

11 relating to the Joint Command from -- from the Serbian authorities.

12 There is an RFA in connection with that that is admitted into

13 evidence; that's RFA 1317. And the response to that RFA indicated that

14 the Joint Command was established by oral order of the FRY president in

15 June 1998, and that it ceased to operate in October 1998.

16 And the other matter was -- I don't know if you want to hear from

17 me on this, Your Honour, but this has to do with a discussion we had

18 yesterday on whether you can rely on a statement of an accused as

19 evidence against a co-accused.

20 JUDGE BONOMY: Yes, please.

21 MR. HANNIS: Thank you.

22 And this is in relation to Exhibit 949, the interview of

23 General Pavkovic. As we discussed, this has been admitted into evidence

24 pursuant to the Trial Chamber order of the 10th of October. We would

25 submit, Your Honour, that it is relevant and probative evidence, as it

1 goes to the existence of the Supreme Command and Mr. Milutinovic's

2 participation in it. We rely on four points --

3 I see Mr. O'Sullivan is standing.

4 MR. O'SULLIVAN: I don't mean to pre-empt any submissions, and I

5 apologise to Mr. Hannis and the Chamber, but I would hope that Mr. Hannis

6 refers to the submission that they made on the 18th of August, 2006, in

7 support of tendering this -- this series of interviews that the OTP took.

8 Their position is clearly spelled out in a submission of 18 August, 2006,

9 and if he's changing that -- I say he cannot change the position he took

10 in this filing, and I know I'm pre-empting his submission, but his

11 submission has to be based on what the Prosecution filed when they moved

12 for you to admit these statements from the bar table.

13 JUDGE BONOMY: What was that submission?

14 MR. O'SULLIVAN: I'm looking at the Prosecution's reply

15 18 August 2006, paragraph 44, the Prosecution said:

16 "The statements given by the accused to the Prosecution are

17 admissible pursuant to Rule 89(C) against the accused who made them.

18 They are also admissible against co-accused, except those parts that go

19 to the acts and conduct or the mental state of the co-accused."

20 So they didn't offer them in relation to the acts and conduct or

21 the mental state of the co-accused. That was their submission, and you

22 admitted those statements on that basis.

23 JUDGE BONOMY: Thank you.

24 Mr. Hannis.

25 MR. HANNIS: Thank you. My point is that the existence of the

1 Supreme Command and those who are members of it isn't an act of the

2 accused or conduct of the accused.

3 May I proceed with my other comments?

4 JUDGE BONOMY: Yes, please.

5 MR. HANNIS: Thank you.

6 The points we rely on, Your Honour, is: one, the Trial Chamber

7 has broad discretion to admit and rely on evidence; number two, the

8 common-law rules are modified at the Tribunal, especially with regard to

9 hearsay; number three, the right to cross-examine a witness is not

10 absolute; and number four, fairness to the Prosecution.

11 With regard to the Trial Chamber's discretion, Rule 89(A)

12 provides that you shall not be bound by the national rules of evidence.

13 Rule 89(C) and (D) guide your decision in relying on Mr. Pavkovic's

14 statement as evidence against any of the co-accused, and they say:

15 "A Chamber may admit any relevant evidence which it deems to have

16 probative value" subject to the safe-guard that "a Chamber may exclude

17 evidence if its probative value is substantially outweighed by the need

18 to ensure a fair trial." Not merely outweighed but substantially

19 outweighed.

20 So we say there's nothing in the Rules of Procedure and Evidence

21 which prevents you from relying on General Pavkovic's statement as

22 evidence against any of the other accused.

23 Secondly, the common-law rules are modified at the Tribunal,

24 especially regarding hearsay. In many jurisdictions, there -- there is a

25 rule that allows for the admission of an accused's statement as evidence

1 against a co-accused in certain circumstances. One of them is in my

2 jurisdiction, it has to do with the co-conspirator exception to hearsay.

3 In Canada, there's a case called Carter and the Carter rule. I realise

4 both of those deal with statements of a co-conspirator in the context --

5 in the course of the conspiracy and in furtherance of the conspiracy,

6 generally speaking.

7 So it's not 100 per cent applicable to this situation where at

8 the time Mr. Pavkovic gave his interview, our joint criminal enterprise

9 is no longer functioning, except to the extent that - you may argue -

10 that the members of the joint criminal enterprise may have a continuing

11 interest in trying to hide evidence about the existence of the JCE and

12 any criminal conduct they might have engaged in.

13 JUDGE BONOMY: I take it the exceptions you're referring to just

14 now are things said in the course of the conduct of the enterprise and,

15 therefore, are part of the res gestae of the crime.

16 MR. HANNIS: Correct, Your Honour, and they are deemed to have

17 more reliability because --

18 JUDGE BONOMY: That would be admissible in most jurisdictions --

19 MR. HANNIS: I --

20 JUDGE BONOMY: -- that's a rather different situation from what

21 we're talking about.

22 MR. HANNIS: And I agree this is a different situation, because

23 once the conspiracy or the joint criminal enterprise has ended, or once

24 people have been arrested or charges filed, the playing field is changed,

25 and the motivations of those individuals are much different, but you have

1 to look at it in the context of whether or not -- one of the factors you

2 should consider is whether or not the statement by the accused in

3 question is inculpatory as to him or exculpatory as to him.

4 For example, if I'm the one making a statement, and I'm talking

5 about something that Mr. Stamp did and I'm putting him in trouble, I'm

6 saying things that lead you to believe that he engaged in criminal

7 conduct and I'm putting myself out of it; that's less reliable than

8 something where I put myself in trouble just as much as Mr. Stamp. So

9 that's a factor that you should look at.

10 Now, the right to cross-examine a witness is not absolute. Our

11 own rules, 92 bis and 92 quater, allow for the admission of evidence of

12 unavailable witnesses, even if it goes to the acts and conduct of the

13 accused. The fact that it may go to the acts and conduct of the accused

14 is a factor that could be relied on in keeping out the evidence, but it's

15 not automatically disqualified.

16 And certainly we agree that an accused's statement raises

17 particular concern that somebody with the motive to exculpate himself

18 might try to shift the blame to others while being able to avoid

19 cross-examination.

20 We say that's addressed in two ways here at the Tribunal

21 different from domestic jurisdictions. One is ICTY cases are heard by

22 professional Judges and not lay jurors; secondly, Mr. Pavkovic's evidence

23 can and should be considered in the totality of all of the evidence. I

24 think Your Honour made the analogy yesterday about the skunk in the jury

25 room. We respectfully submit that Your Honours are able to ignore the

1 smell of the skunk.

2 An additional safe-guard is that the accused may not be convicted

3 solely on the basis of uncorroborated hearsay evidence.

4 Other factors that go into the determination in this Tribunal

5 about whether statements or prior testimony of unavailable witnesses,

6 witnesses who can't be cross-examined for one reason or another, include

7 the probative value of the evidence, its reliability, its relevance, and

8 the circumstances under which it was given, was it under oath, was it

9 signed and acknowledged. In this case we have a tape-recorded interview.

10 Is it consistent with or corroborated by other evidence? Is it

11 first-hand? How close was the witness to the actual events? And the

12 accused -- the co-accused opportunity to introduce countervailing

13 evidence.

14 In this Tribunal in the Martic case, we had the situation where

15 Milan Babic was an insider witness who testified at the trial but died

16 before his cross-examination was completed. In that case, upon

17 application of the Prosecution, the Trial Chamber and the Appeals Chamber

18 agreed that it was appropriate to allow that evidence in, even though

19 cross-examination had not been completed.

20 The Trial Chamber stated that corroboration would be required of

21 any evidence which had not been cross-examined upon, and the accused,

22 Martic, was offered an opportunity to tender other evidence in rebuttal.

23 In this case with the testimony -- or with the evidence and prior

24 testimony of Dr. Rugova, you accepted our application to tender his

25 evidence, even though it did go to the acts and conduct of some of the

1 accused because you found it was relevant, probative and consistent with

2 other evidence.

3 In Aleksovski, a case before this Tribunal, the testimony and

4 documents of Admiral Domazet given in the Blaskic trial were ruled

5 admissible, noting that the weight or probative value will usually be

6 less than given to a witness who has been cross-examined, and that

7 certainly makes sense.

8 JUDGE BONOMY: Mr. Hannis, let me leave you in no doubt about

9 what my difficulty is with all this.

10 MR. HANNIS: Okay.

11 JUDGE BONOMY: You have chosen to put all the accused together.

12 It's by your acts that you prevent on accused being able to call another

13 as a witness and cross-examine him. And let me illustrate the situation

14 with an example from our own case.

15 You're going to rely on things said by a man called Perisic, and

16 you have chosen not to call him as a witness for reasons which you must

17 have and which are not immediately clear to me, but -- but they may be --

18 they may well be justified.

19 But by relying on hearsay there, you're not inhibiting the

20 Defence from calling him as a Defence witness and challenging his

21 evidence in some way or trying to present him in a different way in

22 different circumstances, but the accused here can't do that with

23 Pavkovic, and that's where I find a fundamental difference from all the

24 examples and all the circumstances you invite us to consider here.

25 However, don't let me stop you illustrating the point further. I

1 just want to be sure that you understand my -- my difficulty with this.

2 MR. HANNIS: I do understand, I do understand your point,

3 Your Honour, and I actually had come to the end of my examples. The last

4 point I wanted to make was with regard to fairness to the Prosecution,

5 that's a concept that we say extends to all the parties, including the

6 Prosecution, and it's difficult to see.

7 In Aleksovski, I think, the Appeals Court noted that it's

8 difficult to see how a trial can be considered fair where the accused is

9 favoured at the expense and the Prosecutor -- beyond a strict compliance

10 with those fundamental protections. And I'm not saying that if you

11 decide not to allow that, that you're being unfair to us; I just say that

12 because that is one of the principles involved.

13 Your Honour, that's my submission with regard to that, and as I

14 say this particular evidence about the existence of the Supreme Command

15 is -- is not at the same degree of inculpatory evidence as -- as maybe

16 some other things that General Pavkovic could have said or may have said

17 that we're not proposing to have you consider against other accused. And

18 we say there is other evidence indicating the existence of that body at

19 that time.

20 That's all I had to say about that at that time. We -- we can

21 make a written submission, if that's helpful to you, or if you feel you

22 have enough, I'll move on.

23 JUDGE BONOMY: There is no need to make a written submission at

24 this stage on any matter. We'll be content with the oral submissions of

25 the party.

1 MR. HANNIS: Thank you, Your Honour. Thank you for that

2 opportunity.

3 JUDGE BONOMY: Mr. O'Sullivan, I'm reluctant to have regular

4 interruptions of what Mr. Hannis has said.

5 MR. O'SULLIVAN: Will you allow me to respond?

6 JUDGE BONOMY: On this point?

7 MR. O'SULLIVAN: Yes.

8 JUDGE BONOMY: If you really think it's necessary. You --

9 MR. O'SULLIVAN: Well, I just --

10 JUDGE BONOMY: Well, if you are going to, it will be after the

11 completion of Mr. Hannis's submission.

12 MR. O'SULLIVAN: Very well.

13 JUDGE BONOMY: You can raise the matter then.

14 MR. HANNIS: Thank you --

15 JUDGE BONOMY: Mr. Hannis.

16 MR. HANNIS: -- Your Honour.

17 Next, I wanted to talk about some of the crime base evidence. We

18 didn't hear a lot of argument from most of the Defence counsel earlier

19 this week contesting the crime base evidence. Mr. Ivetic raised some

20 points, but for the most part I don't recall the others making much of an

21 issue of that.

22 We say there is more than ample evidence in this case at this

23 stage for you to find that the crimes alleged did occur. And what I

24 propose to do, Your Honour, unless you find it not helpful at all, was

25 just quickly go through each of the scheduled deportation and killing

1 incidents and name for you the witnesses who testified about each one.

2 JUDGE BONOMY: That will be extremely helpful, Mr. Hannis. Thank

3 you.

4 MR. HANNIS: Thank you.

5 Your Honour, the first is paragraph 72(a) and 72(a)(i) of the

6 indictment which talks about the deportation from various villages in the

7 Orahovac municipality. The witnesses who testified to Orahovac

8 deportation include: Agim Jemini, Reshit Salihi and Ali Hoti. That was

9 as to paragraph 72(a), which related to Celine.

10 The witnesses who testified to paragraph 72(a)(i) and which was

11 regarding the Krusha e Madhe, Bela Crkva, and Orahovac municipality

12 generally include: Ali Hoti, Reshit Salihi, K25, Sabri Popaj and

13 Isuf Zhuniqi or Zhuniqi.

14 With regard to paragraph 75(b), that's murders in relation to

15 Bela Crkva, the witnesses who testified about that were: Isuf Zhuniqi,

16 Sabri Popaj, K25, and Agim Jemini.

17 And paragraph 75(c), another killing incident, this is in regard

18 to Mala Krusa, the witnesses who testified were: Mehmet Avdyli;

19 Lutfi Ramadani; K25; John Sweeney, and he made some documentaries about

20 that case, which are Exhibits P114 and 115; Ali Hoti also testified about

21 some portion about that.

22 I want to spend a little time to talk about this one, because

23 Mr. Ivetic raised yesterday an issue about the perpetrators and

24 suggested, I think, that this was a -- this was a local vendetta and

25 didn't involve really any police.

1 First of all, with regard to what forces surrounded the town

2 before the killings occurred, you have the evidence from -- from K25 that

3 on March 25th, he was told to go to Mala Krusa and his -- his unit set up

4 a blockade. They were supposed to basically hold the line while mop-up

5 operation was being conducted from the direction of Bela Crkva, Orahovac,

6 and Velika Hoca.

7 There were four PJP companies deployed for operations in the area

8 south of Orahovac, and this witness explained on -- on a map, P109 and

9 P2372, showing the various locations of VJ MUP, PJP, and military

10 vehicles deployed at the time of this operation. He showed three tanks

11 and four other VJ vehicles on the map in the area of Mala Krusa.

12 Mr. Ramadani also talked about the tanks and anti-aircraft

13 artillery weapons and armoured cars surrounding the village. On

14 Exhibit IC72, he marked the main road, the road into the village, where

15 the APCs and the tanks were stationed, and he marked the house where

16 the -- the MUP gathered. He described the --

17 JUDGE BONOMY: Mr. Hannis, sorry, if I may interrupt -- sorry, I

18 thought you were going through 72, but it's actually 75 you are going

19 through?

20 MR. HANNIS: Yes, yes. This -- this is the killings in

21 Mala Krusa.

22 JUDGE BONOMY: I'm sorry. Yes, please carry on.

23 MR. HANNIS: He described that the men with the vehicles wore

24 black and multi-coloured camouflage uniforms. He says that the -- the

25 army was in the mountains around the village and on the main road, while

1 the policemen were the ones who were actually in the streets of the

2 village.

3 Mehmet Avdyli told you that he woke up to the sound of tanks on

4 the 25th of March, and that they were firing in the upper part of the

5 forest. Then he says that the forces started to burn down the village.

6 He described MUP policemen wearing blue camouflage uniforms. He says

7 they went to Dimitrije Nikolic's cafe in Mala Krusa on the 25th and 25th.

8 As to the forces that actually did the killing, Lutfi Ramadani

9 says that among the people in the village in different uniforms, he

10 noticed also some local villagers, and he named several of the Nikolic

11 family: Dimitrije Ranko, Momcilo, Sava, Zlatko, and -- and two or three

12 other locals.

13 He says they were all in uniform and armed, but with them there

14 were other uniformed people who the villages did not know, and the locals

15 were leading these others through the village, entering houses and

16 setting them on fire. Inside the village, he only saw policemen. As he

17 said -- as another witness said, the army was on the main road and in the

18 mountains.

19 There was a policeman in a black uniform, who with one of the

20 locals separated the men from the women and children, then searched and

21 ill-treated the men and took them to the Batusha barn where the women

22 then were ordered to leave and the men were ordered to kneel down. There

23 were many policemen along the road that the men walked on, on the way to

24 the barn. Some they knew and some they didn't know. He didn't see the

25 local policemen but only the others.

1 After the witness fled from the barn, he saw policemen he did not

2 know and also some of the locals near the barn. He recognised Stanko and

3 Rade Nikolic, among others.

4 Mehmet Avdyli saw men wearing green camouflage uniforms, and some

5 wearing a combination of green camouflage and a plain green shirt, and

6 people in the MUP blue camouflage uniform in the village. He describes a

7 group of 15 policemen in dark blue and green camouflage, not all had the

8 same uniform. And these were the ones who escorted them to the Batusha

9 barn. He didn't know these policemen; they weren't locals. He did hear

10 one of his neighbours address one of the shooters, saying Momcilo, is

11 that you? He believed that was referring to Momcilo Nikolic, one of the

12 local Serbs.

13 Now, in connection with that, we have Exhibits 2357, which was a

14 list that Lutfi Ramadani had prepared listing the local inhabitants who

15 assisted or participated in the execution, that included several of the

16 Nikolics, and Exhibits P2333 and 2335 were an RFA we had sent requesting

17 information on the local Serbs from Mala Krusa as to any membership in

18 the MUP or the VJ, and 2335 is the response, which indicated that several

19 of them were members of -- or people with those names were members of the

20 reserve police force in Prizren SUP.

21 Exhibit P2850 is the personnel file for Zvezdan Nikolic, which

22 confirms he was a fireman in the SUP of Prizren, and that, indeed, he was

23 born in Mala Krusa and the son of Dimitrije Nikolic, who was identified

24 by the witnesses as being present on that day.

25 Now, the suggestion that this was a local vendetta goes counter

1 to all the evidence and to a common-sense interpretation of what you've

2 heard about who was out there and what they were doing. The mass murder

3 of more than a hundred men occurred in the context of a big

4 anti-terrorist operation that was going on throughout Orahovac and

5 Prizren at the time. There was coordination of forces between the

6 military and the MUP. The VJ was on the mountains and on the main road;

7 and the MUP was going into the village. The VJ units were stationed so

8 close to the PJP, they had direct oral communication with them.

9 It's not reasonable, we say, in this context to assume that it

10 would just happen that the whole village was being destroyed and a

11 hundred men were being killed and the entire female population is being

12 forced out. It's counter to our intelligence to believe that this was

13 done by some rogue elements unnoticed by the VJ and the MUP that were

14 stationed there for this operation.

15 The witnesses testified that the expulsion of the women and the

16 search and killing of the men was done in collaboration with local Serbs.

17 It was not done entirely by local Serbs, it was done by policemen who

18 were not from the village as well. K25 testified that the local Serb

19 reservists were assigned duties of reserve policemen.

20 Also of note, only the Albanian houses in Mala Krusa were

21 completely burned and destroyed. The Serb and Roma houses were in

22 perfect condition when Lutfi Ramadani returned in mid-June.

23 The crime site, the barn, was dynamited and all the evidence

24 destroyed, which we suggest is evidence of intent on the part of someone,

25 probably the perpetrators, to hide what had happened. And up until this

1 time, no investigation of this particular killing has occurred, even

2 though there's been public information about some of the perpetrators.

3 That was testified to by John Sweeney, and he indicated they actually

4 managed to track down some of them in Serbia.

5 Some documentary evidence relating to this incident, Your Honour,

6 is found at Exhibit P2015, which is a Joint Command order of 23rd March

7 1999, to "provide assistance to the MUP in crushing and destroying Siptar

8 terrorist forces in the Orahovac, Suva Reka, and Velika Krusa sector."

9 And that document, we say, is important for you to look at in connection

10 with this event, because it explicitly assigns tasks to particular units,

11 the 549th Motorised Brigade, in the villages of Orahovac, which are

12 indictment cites as listed below, and I'll detail it in a moment.

13 It clearly states that the VJ units are to support MUP units, and

14 it states that the Joint Command shall: "Command and control all forces

15 during combat operations." The relevant details of that order include

16 item 2, which assigns as a task to support MUP forces in the general area

17 of Orahovac and Velika Krusa; item 4 mentions explicitly that the VJ

18 should support the MUP forces in Bela Crkva and Velika Krusa, which

19 equals the Krusha e Madhe village.

20 The goal, according to the order, is to block, among others,

21 Mala Krusa, Velika Krusa, Brestovac, and other villages.

22 Item 5.1 calls for the 549th Motorised Brigade to blockade the

23 line along the villages of Bela Crkva, in a joint action with VJ and MUP

24 carry out -- carry all-out attack on the axis of villages around

25 Bela Crkva, Velika Krusa. The more immediate task is to break-up and

1 destroy the Siptar terrorist forces in the villages of Celine,

2 Velika Krusa, and Mala Krusa.

3 Related is Exhibit P1981, this is the brigade level order signed

4 by Colonel Delic on destroying terrorist forces in the general sector of

5 Retimlje and lifting a blockade of the Suva Reka-Orahovac road. This

6 called upon at page 4, battle group 1 in cooperation with the 37th PJP

7 Detachment and two platoons of MUP to energetically attack and destroy

8 major individual targets using hardware to overpower and destroy the

9 Siptar terrorist forces in Mala Krusa. Battle group 3 was to coordinate

10 their actions with our forces in taking control of the villages of Mala

11 Krusa and Celine, among others.

12 Exhibit P1995 shows that the operation lasted from the 25th to

13 the 29th of March in the relevant areas; that it involved in the

14 neighbourhood of 2.000 men, 21 tanks. It also lists the MUP-PJP units

15 that were deployed. It indicates that coordination among the forces and

16 with the MUP forces were functioning well, and that it was under the

17 Joint Command of the MUP and the VJ forces.

18 K25 confirmed that the first paragraph of Exhibit P1995 describe

19 accurately the operation he took part in, and that it lists his unit as

20 participating in the operation. He confirms that MUP-PJP was partaking

21 in the action.

22 I'm not going to go through all of them, Your Honour. That was

23 one in particular I wanted to go into some detail, but we say that you

24 have heard evidence in this case, and you have evidence in the form of

25 the documents, that will assist you in finding that there is reliable

1 evidence upon which you can find that these crimes did indeed occur.

2 With regard to paragraph 72(b), this is deportations from

3 Prizren, you heard from three different -- or four different witnesses:

4 Rexhep Krasniqi, Mr. Latifi, and Mr. Kreyziu - I can't pronounce his

5 name - and I believe you also had evidence pursuant to 92 bis (C) or

6 92 ter, I'm not sure at what time we filed the motion regarding

7 Mr. Morina's evidence.

8 With regard to Serbica, that's both a deportation site and

9 killing site. As to -- to that event, you heard evidence from -- on

10 deportations, you heard evidence from Xhevahire Rrahmani. With regard to

11 the killings in Izbica, you heard from Milazim Thaqi and Mustafa Draga

12 and Liri Loshi. Others witnesses regarding deportations in that

13 municipality included Hadije Fazilu and Abdullah Salihu.

14 Next, paragraph 72(d) and 75(d), this is both deportations and

15 killings in Suva Reka municipality. Regarding deportations, you heard

16 from Mr. Zogaj and Ms. Fondaj. And regarding the killings, you've heard

17 from Hyseni and Shyrete Berisha, as well as an insider witness who was

18 K83.

19 Regarding Pec deportation site in paragraph 72(e), the witnesses

20 who testified included Ndrec Konaj and Edison Zatriqi. Dr. Riedlmayer

21 testified about the destruction.

22 Paragraph 72, Kosovo Mitrovica, the witnesses included

23 Aferdita Hajrizi, Sadije Sadiku, Mahmut Halimi. Pristina deportation

24 counts for the town itself and for villages in the area of Pristina in --

25 this was listed in paragraph 72(g) and 72(g)(i), the witnesses included:

1 Nazlie Bala, Emin Kabashi, K62 and K63, K14, K31, Baton Haxhiu and

2 Lakic Djorovic all spoke about that.

3 Paragraph 72(h) and paragraph 75(g), this is Djakovica, both

4 deportation and killings. Regarding the deportations, Fuat Haxhibeqiri

5 testified. Regarding the killings at Milos Gilic Street, you heard from

6 young Dren Caka, Hani Hoxha, Lulzim Vejsa and Naser Rudi.

7 Paragraph 72(h) and paragraph 75(h), again deportations and a

8 killing site. This is in the Meja area. You heard from Lizane Malaj,

9 Merita Deda and Martin Pnishi. You also heard evidence related to this

10 from some insider witnesses as well. K73 gave evidence related to this,

11 as well as did K90. And we also heard from -- and Nike Peraj about the

12 operation in that area.

13 Paragraph 72(i) was deportation only in the Gnjilane

14 municipality. The witnesses who testified it included Qamil Shabani,

15 K81, and Abdylhaqim Shaqiri.

16 Paragraph 72(j), Urosevac, witnesses included Bajram Bucaliu, who

17 worked at the train station and provided the log from the train station;

18 Florim Krasniqi; and Bedri Hyseni.

19 Paragraph 72(k) and 75(k), some deportations and killings both in

20 the Kacanik municipality. You've heard evidence from Sejdi Lami,

21 Muharrem Dashi, Fadil Vishi, Isa Raka, and Hazbi Loku.

22 Decani, paragraph 72(l), deportations, you heard witnesses --

23 evidence from witnesses K20, K58, and Mehmet Mazrekaj.

24 Paragraph 72(m) and 75(i) relates to Vucitrn municipality and

25 deportations and a killing in connection with the convoy. You heard from

1 Fedrije Xhafa, Shukri Gerxhaliu and Sabit Kadriu.

2 And those are the crime base witnesses.

3 Your Honours, I next want to address in connection with that,

4 some issue regarding perpetrator identification. I'm certain you'll

5 recall that early in the case, there was -- it was apparent that there

6 was some confusion among the witnesses about perpetrators. Some used the

7 term "soldiers" to identify what appears to be three different types of

8 groups; some used the term "policemen"; some used the terms

9 "paramilitaries."

10 It seemed from the evidence that there's some overlap on how the

11 crime base witnesses used those terms to describe the perpetrators. We

12 think, now that you've heard all their evidence, there is some reason to

13 understand why there is that confusion. There was also confusion about

14 the colours.

15 I don't know if the Court has had this, but we have made a

16 request from CLSS to provide us some explanation about how there is some

17 confusion based on how certain words for colours are used in Albanian

18 Albania, in Albanian that's spoken in Albania, and Albanian that's spoken

19 in Kosovo, and also you have some evidence about the different uniforms

20 that the different forces wore. In General Lukic's interview, which is

21 in evidence and it's -- I'm sorry, I don't have the exhibit number in

22 front of me, but at page 54 of that transcript of the videotape which is

23 ERN V000-3910, he tells us that PJP units had blue camouflage uniforms or

24 green camouflage uniforms, that the SAJ and the JSO had green camouflage

25 uniforms. So PJP had either or both. General Lukic went on to say that

1 blue camouflage uniforms basically were worn for urban task, whereas

2 green would be worn when carrying out tasks outside the urban areas.

3 One point we would like to argue from the evidence with regard to

4 identification of the perpetrators is, Your Honours, we say from all of

5 the evidence, even though you may not be able to tell from an individual

6 crime base victim's description of who came to his or her village on that

7 day, whether it was a policeman, and if it was a policeman whether he was

8 PJP or SAJ or JSO or whether he was in the VJ or the reserve or military

9 territorial detachment or local civil defence of some sort, we say the

10 evidence in this case indicates there were no large bands of armed men

11 roving in Kosovo that weren't under the control of our accused. The

12 number of VJ and MUP that were stationed in Kosovo at that time and their

13 presence throughout Kosovo just excludes the reasonable possibility that

14 any significant band of armed men roving around and doing mass

15 killings or mass deportations could not be anybody except somebody in one

16 of these -- one or more of these forces, we say, or under the control of,

17 armed by, equipped by, and working with forces under the control of our

18 accused.

19 With that -- and I do now have that number for General Lukic's

20 interview, that is Exhibit P948.

21 Let me now move to some of the individual accused.

22 General Ojdanic. I want to talk about his participation in the

23 joint criminal enterprise. With regard to his authority, he was the

24 highest-ranking military officer in the FRY at the time of our

25 indictment. He was the Chief of the General Staff during peacetime, and

1 when the state of war was declared, he became the Chief of Staff, the

2 Chief of the Supreme Command Staff.

3 Pursuant to the Law on Defence which is Exhibit P985 and the Law

4 on the Army or the Law on the Armed Forces, P984, in that position he

5 exercised de jure and, we say, de facto command over the VJ and units

6 subordinated to it. After the declaration of a state of war on the 24th

7 of March, we say he also exercised control over MUP units engaged in

8 combat operations and other organs subordinated to the VJ or acting in

9 concert with the VJ. This is under the -- under the FRY law on the -- on

10 defence, which is our Exhibit P985.

11 On the 19th of April, 1999, we have an order from

12 General Ojdanic, this is Exhibit P1460, as Chief of Staff of the Supreme

13 Command and citing as authority Article 17 of the Law on Defence and the

14 order of the president of the FRY. He's subordinating MUP units to the

15 VJ.

16 How did he contribute to the JCE? We say he did so through

17 several channels. He used the VJ General Staff to plan, direct, and

18 coordinate the operations and activities of the forces of the FRY, in

19 Kosovo, that furthered the JCE's purpose of altering the ethnic balance

20 by removing hundreds of thousands of Kosovo Albanians.

21 General Ojdanic assisted in the planning and coordination of the

22 deployment of troops to Kosovo that committed the crimes charged in the

23 indictment. In the minutes of the collegium of the General Staff for the

24 25th of February, 1999, this is Exhibit P941, at page 12 there is a

25 reference made to the resubordination of units from outside of Kosovo to

1 VJ units operating in Kosovo. And on the 21st of January, 1999, General

2 Ojdanic presided over a meeting of the collegium, and this is P939,

3 particularly at pages 24 through 26, in which a plan of operation against

4 the KLA during spring-time was discussed in detail.

5 Now, on the face of it, it was a spring offensive that was a

6 legitimate anti-terrorist operation, but we say in its implementation it

7 included massive crimes that were committed in furtherance of the JCE.

8 As the Chief of General Staff, he exercised his authority in other ways

9 by ordering an increase in the troops' strength of the 3rd Army units.

10 This was to be found in Exhibit P1487, suggestions to the 3rd Army

11 command from the Chief of Staff of the Supreme Command. And that's a

12 document we've talked about before, too, that makes a reference to a

13 Joint Command order.

14 He did it also by mobilising reserve units. He further

15 contributed by arming civilians.

16 General Ojdanic was aware. He was aware of and involved in the

17 arming of predominantly non-Albanian civilians into local or village

18 defence units during a collegium meeting on -- I believe it's the 21st of

19 January -- I'm sorry, it may be the 30th of December, 1998. It's P928.

20 During that meeting it was suggested to General Ojdanic that some

21 60.000 Serb civilians could be mobilised outside the control of official

22 organs. In another meeting of the collegium, Ojdanic was updated on the

23 arming of civilians, the weapons that were being issued to them, and the

24 manner in which these armed civilians would be incorporated into VJ

25 operations. This is a meeting from 2 February 1999 and found in Exhibit

1 P931 and the reference goes to page 23 of that meeting. We say this is

2 important because you will see in the Joint Command orders, during the

3 first week of the war, that there is particular reference to implementing

4 and using the armed non-Siptar population in carrying out those

5 operations. You will see that specific tasks are assigned for the

6 non-Siptar population, in many cases to blockade an area or control a

7 road.

8 We say also that General Ojdanic's authority as head of the

9 Supreme Command Staff was augmented by the fact that he was a member of

10 the Supreme Defence Council and he directly participated in the

11 formulation of policy and issued orders and instructions to his

12 subordinates in further of the JCE. You have an order from the Supreme

13 Command Staff dated the 12th of April 1999 in which Ojdanic subordinates

14 forces of the MUP and civilian defence to the command of the 3rd Army.

15 That's Exhibit P1483.

16 As a member of the Supreme Command Staff he participated in

17 strategy formulation, strategic-level decisions, and he commanded

18 operations during the state of war that was declared on 24 March. The

19 Supreme Command was headed by President Milosevic as the

20 Supreme Commander, and it's clear that Ojdanic worked in collaboration

21 with Milosevic on issues such as troop deployment and operations in

22 Kosovo. We point to Exhibit P1495 from the 24th of May, 1999.

23 VJ and MUP coordination is another aspect of Ojdanic's

24 participation in the JCE. He encouraged it, he was involved in it, he

25 issued orders, as we said before. He issued orders to formally

1 subordinate MUP units engaged in combat operations. He also issued an

2 order on the 29th of May, 1999, to the 3rd Army command, which is

3 Exhibit P1920, urging the 3rd Army and subordinate units to now prepare

4 for NATO's possible land invasion, and that order clearly shows that the

5 MUP was resubordinated to the VJ.

6 And that order, Your Honour, we say you should look at as well

7 because he notes that up to this point in time, 29th of May, 1999, that

8 the Pristina Corps has not been able to prepare for a possible NATO land

9 invasion because they've been too busy being engaged in their

10 anti-terrorist operations, evidence which we say shows General Ojdanic's

11 awareness of what the VJ was doing in the first months of the war.

12 We say that because of that order, because of the law, the MUP

13 units engaged in combat operations were under the effective control of

14 the VJ.

15 We say that General Ojdanic had knowledge of the crimes that were

16 being committed in furtherance of the JCE, and he was informed of these

17 through various means, including international observers and as a

18 function of his position in command organs.

19 Regarding international observers, before the war was declared in

20 March 1999, he had interactions with international observers, who told

21 him that the VJ was acting improperly and illegally, using excessive

22 force. The security -- UN Security resolutions were public knowledge.

23 General Crosland spoke about presenting evidence regarding the

24 evidence -- regarding excessive force being used in Kosovo and to which

25 Ojdanic responded: "Force would be met with force."

1 Now, I don't think it's clear from the evidence whether General

2 Ojdanic viewed that tape, but it was presented to his staff, according to

3 Colonel Crosland. And we say in this regard and in all other regards

4 concerning General Ojdanic, we agree with Mr. Sepenuk. Read the

5 collegium minutes. They're lengthy, they're extensive, a lot of it is,

6 for me and maybe for Your Honours, boring and not so pertinent, but it's

7 sort of impossible to pick and choose a sentence or a paragraph. You

8 have to read the whole thing to get an understanding and flavour for the

9 persons involved, their interactions. But we say what it shows is

10 extremely detailed knowledge on the part of General Ojdanic and the

11 General Staff or the Supreme Command Staff about what's happening on the

12 ground. I mean, sometimes they talk about very minor individual events.

13 One soldier has had frostbite and had toes amputated and there's a

14 discussion about what they need to do about that because of some claim he

15 might make for assistance after his army service is over.

16 But they also talk about things that are going on at the

17 international level, how Serbia's being viewed, how they're under

18 pressure, how they're under scrutiny from the outside world and how that

19 affects what they do and how they do it in Kosovo. So please do read

20 those collegium minutes that are in evidence.

21 Ojdanic's knowledge of events also derived from being in the

22 position he held and as a result of the reporting structures within those

23 organs. To reflect what I said, that they were extremely well-informed.

24 Daily reports were sent up the chain of command, and you will see from

25 the documents and you will know from the testimony you've heard that the

1 reporting system within the VJ was well organised. Exhibit P2603 is a

2 entitled "the methodology of work of Pristina Corps" signed by General

3 Lazarevic on the 6th of January, 1999. It's a directive from the

4 Pristina Corps command with detailed guidance on reporting obligations.

5 And you'll see that those were complied with. That reporting went from

6 the subordinate units of the Pristina Corps all the way to the top of the

7 chain of command, to the Supreme Commander, Milosevic, on operational

8 matters.

9 And as an example of that, we point you to Exhibit P1480, which

10 is described as a preparatory order from the Supreme Command. It's from

11 General Ojdanic, as chief of the Supreme Command Staff, directed to

12 General Pavkovic, as commander of the 3rd Army, to submit a proposal for

13 a decision which then could be submitted at the Supreme Command Staff in

14 the presence of the Supreme Commander.

15 Also, in terms of being informed on what was happening on the

16 ground, we point you to Exhibit P929, and this is a VJ collegium meeting

17 at pages 33 and 34. This April 9th meeting you will see reference being

18 made to some 400.000 refugees. So at the Supreme Command Staff they are

19 aware in early April of what is happening with regard to the actions

20 their units are taking in Kosovo and how thousands -- hundreds of

21 thousands of refugees have come into being as a result.

22 We say that General Ojdanic was also aware of crimes committed by

23 certain volunteers in Kosovo. Exhibit P490 and P1943 refer to an order

24 of the 20th of April, 1999, in which -- this is from the Supreme Command

25 Staff. General Ojdanic refers to a report of the 3rd Army which sets out

1 in detail the actual knowledge of the Supreme Command on the use of

2 unscreened volunteers and the serious crimes committed by them in Kosovo.

3 On the 13th of May, you heard evidence -- well, you didn't hear

4 it on the 13th of May, but you heard evidence that on the 13th of May,

5 1999, General Farkas informed Ojdanic about this issue. That's when

6 Ojdanic informed Milosevic the following day. This is from General

7 Vasiljevic's testimony and from his statement, Exhibit P2594, paragraphs

8 59 to 62.

9 Vasiljevic also briefed Ojdanic about these crimes, and we've

10 heard evidence about the meeting that took place on the 17th of May

11 chaired by Slobodan Milosevic, attended by Mr. Sainovic, General

12 Pavkovic, General Ojdanic, Rade Markovic from the DB, and General

13 Vasiljevic. Crimes against civilians, including murder and rape,

14 problems with volunteer groups, some of these are associated with the

15 MUP, including the Skorpions and the Arkan's Tigers were discussed. It

16 was at this meeting that Rade Markovic said that volunteers were "a

17 necessary evil" that accompanied every war.

18 However, it's not only at this meeting where allegations were

19 made the crimes were being committed either by the police or by the VJ.

20 You have Exhibit P1996 which are the MUP staff minutes of a meeting on

21 the 7th of May 1999 where complaints are being made about crimes being

22 committed primarily by the VJ, by army units.

23 Now, more specifically we say that Ojdanic was informed of

24 criminal acts against Albanian civilians by the MUP which was operating

25 with the VJ. We have General Pavkovic's report dated 25 May 1999 on the

1 noncompliance of MUP organs. That's Exhibit P1459. We say that's worthy

2 of some attention by Your Honours.

3 At paragraph 3, it says that MUP members were condoning criminal

4 activities such as plunder by fellow MUP members, and it describes some

5 of them are committing serious offences such as murder, rape, robbery

6 against the Siptar civilian population in settlements or refugee

7 shelters.

8 And it complains that in spite of the April -- I believe

9 April 18th order for subordination of MUP units, they had not

10 subordinated themselves to the VJ. This is an issue in this case, and

11 this is something that you will need to pay attention. But there's some

12 interesting aspects to it, we say.

13 This complaint from General Pavkovic comes on the 25th of

14 May, 1999. Your Honour, that's three days after the indictment in case

15 number IT-99 -- 99-37 was issued. That's an indictment that was signed

16 by Louise Arbour, when she was the Prosecutor, and it's for the Kosovo

17 case. It charges Milosevic, Ojdanic, and Minister Stojiljkovic,

18 Mr. Sainovic.

19 So three days before that indictment had been issued, and I

20 believe it on the 22nd of April is the date that it was signed, it's

21 file-stamped in the registry, I think, on the 23rd and became, I believe,

22 public on the 24th of May.

23 So on the 25th of May, General Pavkovic is writing this order

24 saying: MUP hasn't been subordinate -- has not been subordinated to us

25 in the army, they haven't done what they're supposed to do, and they've

1 been committing a bunch of crimes. But this is almost five weeks after

2 the original order. We haven't seen evidence in this case about ongoing

3 complaints about MUP not subordinating itself to the army. We've had

4 lots of joint combat operations that have been carried out under orders

5 of the Joint Command where they're working together, and we've had

6 post-action reports in evidence indicating that cooperation went well,

7 they worked well together with the MUP. So we suggest you should view

8 this evidence in the context of the time when it occurred and when the

9 motivation might be. And --

10 JUDGE BONOMY: Did that indictment also include Mr. Milutinovic?

11 MR. HANNIS: I believe it did. Yes, it did.

12 JUDGE BONOMY: Thank you.

13 MR. HANNIS: I'm sorry I omitted him.

14 And as I said, it notes that the army was well aware that the

15 MUP -- that some MUP members and smaller units that "operate

16 independently on the ground" were committing these serious offences

17 against the civilian population. But there's no indication that any

18 other action was taken by General Pavkovic or General Ojdanic.

19 Now, I suppose the argument will be: Well, they -- they didn't

20 subordinate themselves, so we can't do anything about it. But even if --

21 even if that were the case, we suggest that in the context of this

22 conflict that's going on, the VJ has the substantial forces in this area.

23 These are crimes occurring in their area of responsibility. At the

24 least, there should be some reporting or information to civilian

25 authorities or to MUP authorities and superiors about these crimes. We

1 don't see any evidence of that.

2 So despite knowledge of these crimes, we say General Ojdanic

3 failed to take substantive measures to prevent commission of further

4 crimes or to punish anyone for the ones that he knew about. We say this

5 created an atmosphere of impunity which encouraged and instigate further

6 crimes.

7 And when you take that together with all the other evidence, we

8 say it shows that General Ojdanic intended for those crimes to occur.

9 The -- the reasonable inference that you can take from this is that the

10 crimes charged were part of a common plan to alter the demographic

11 balance in Kosovo, and thus part of the joint criminal enterprise that

12 we've alleged. Ojdanic made contributions to that enterprise with the

13 intent that he shared with the other members.

14 Now, our fall-back position with regard to all the accused is

15 that if you don't find responsibility under JCE, that you may find

16 responsibility under 7(1) with regard to General Ojdanic on the basis of

17 planning and ordering; or, in the alternative, that he aided and abetted

18 the commission of such crimes.

19 In that regard, we say he permitted and facilitated the

20 involvement of VJ personnel and resources in combat activities in Kosovo.

21 He knew that without the involvement of those units, the objectives of

22 the JCE couldn't be achieved. And by implementing instructions from

23 Milosevic as a member of the staff of the Supreme Command, as the

24 Chief of Staff of the Supreme Command, he lent material and moral support

25 to the members of the JCE. And by abstaining from taking any substantive

1 disciplinary measures, he encouraged and morally supported the direct

2 perpetrators of those crimes against the Kosovo-Albanian population.

3 We say he shared an intention to participate in the JCE with its

4 other members. He knew the plan was being implemented, and he didn't

5 exercise his authority to prevent or restrain it. And in connection with

6 that, we point again to that order with suggestions for the 3rd Army,

7 which is the one that makes reference to a Joint Command order that is --

8 that the Supreme Command Staff and General Ojdanic are aware of. Again,

9 this is Exhibit P1487.

10 The Joint Command is not a body provided for in the constitution

11 or the Law on Defence or the Law on the Army. There doesn't seem to be

12 any legal basis for it, yet General Ojdanic seems to be content and

13 satisfied to go along with it. He doesn't order the 3rd Army to

14 disregard it; he makes the suggestion that they might want to do some

15 aspect of it differently. We say this shows his intention, his shared

16 intention with the other members of the JCE.

17 Likewise, we say evidence about the removal of certain high-level

18 personnel show his intention -- his shared intention to participate in

19 the JCE.

20 Unlike his predecessor General Perisic, we say the evidence shows

21 Ojdanic supported the involvement of VJ in combat activities in Kosovo

22 under -- under conditions which General Perisic felt were in

23 contravention of the VJ's legal mandate.

24 This is evidence we've talked about a lot. General Perisic's

25 letter of -- of 23rd of July, 1998, Exhibit P717, where he said, If the

1 army is going to be used this way, Mr. Milosevic, you really need to

2 declare a state of emergency. When General Ojdanic replaced

3 General Perisic in late November, after that date you heard General DZ

4 say there was a change in the attitude, there was a perceived change in

5 the attitude and the way in which the army was used. We say this change

6 occurred in part because Ojdanic was viewed as someone who was more

7 willing to go along with what Milosevic wanted to do in Kosovo with the

8 army.

9 As Chief of the General Staff, we say he used his authority to

10 facilitate the furtherance of the JCE. Now, while the removal of senior

11 VJ officials like General Perisic was done on a basis of a decision by

12 the FRY president, Mr. Milosevic, as Chief of the General Staff, Ojdanic

13 makes recommendations to the Supreme Defence Council on personnel issues.

14 You see that is referred to in the order on agreed facts of 11 July 2006.

15 Now, in addition, pursuant to a decree by Milosevic, Ojdanic

16 assisted in the replacement of officers who were opposed to the use of

17 the VJ in Kosovo and the replacement of officers. We point you to

18 Exhibits P799 through P803, a series of five documents.

19 We say you can also see his intention, his shared intention with

20 the other members of the JCE is shown by his actions in connection with

21 breach of the October 1998 agreements. The build-up of troops and

22 creation of training areas, we say, are examples of breaches of those

23 agreements which were within Ojdanic's area of responsibility.

24 In addition, you've heard from General Loncar of another example

25 when he testified that Ojdanic refused to permit General DZ to inspect

1 military brigades and weapons located in Kosovo, in spite of Ojdanic's

2 acknowledgement that such monitoring was a part of the October

3 agreements. That can be found at transcript page 7672.

4 Ojdanic's superior responsibility, Mr. Stamp will be talking

5 some -- about 7(3) responsibility, but I'll mention something here.

6 Ojdanic had the material ability and obligation to enforce

7 military discipline and to effect prosecution and punishment. The

8 military justice system was properly functioning during the time-period

9 of the indictment. You can see that in Exhibit 1917, the Supreme Command

10 Staff report of 7 May 1999.

11 We say after the declaration of war and pursuant to the order of

12 the president and the Supreme Command Staff's order, that Ojdanic had

13 command over MUP units that were subordinated to the VJ for combat

14 operations. He had sufficient information available to put him on notice

15 that units under his command were about to or had committed crimes, and

16 he failed to take effective measures. Instead of putting his authority

17 to use to end those widespread attacks against the civilian population,

18 the few criminal cases that were prosecuted didn't really cover those

19 serious crimes; rather, you'll see they're more focussed on crimes

20 against the army: desertion, absence without authorisation, and other

21 crimes related to infractions of VJ discipline.

22 An exception, I guess I would add, is -- is theft. There were

23 lots of prosecutions for theft and looting, but not for murder, not for

24 war crimes. And you'll see this in reports on -- of the 3rd Army command

25 organ on legal affairs on the work of military prosecutors and courts,

1 Exhibits P1912, 1939, 1940, and 1941.

2 For example, of the 91 proceedings mentioned in the Pristina

3 Corps report about the status of military proceedings involving its

4 members since 24 March 1999, none of them covered serious violations of

5 law, of war, or international humanitarian law. That is Exhibit number

6 P1182, dated the 15th of May.

7 We say this systematic failure to investigate and properly

8 prosecute resulted in extremely few war criminal cases ever being tried.

9 According to the testimony of Lakic Djorovic, he was repeatedly faced by

10 attempts to obstruct his investigations in criminal proceedings. We say

11 Ojdanic's lack of effective and timely response demonstrates an intent to

12 permit the occurrence of these crimes or, at the very least, the

13 knowledge and lack of action in fulfilling the requirements of Rule 7(3).

14 You'll recall General Vasiljevic's account of how this

15 information first came to light for General Ojdanic, as far as

16 General Vasiljevic knows. That's when General Farkas advised him.

17 Ojdanic called Milosevic, an appropriate action. A meeting was

18 scheduled, and he, General Ojdanic, ordered General Pavkovic to come up

19 and brief him on what had been happening.

20 They had a pre-meeting meeting before the big meeting on the

21 17th of May with Milosevic, Sainovic, and Rade Markovic. It seems clear,

22 based on what General Vasiljevic tells us in his statement and evidence,

23 that prior to coming up to brief General Ojdanic, General Pavkovic must

24 have known about some of those crimes, because he explains how there were

25 800 bodies on the ground, and that he's been having discussions with the

1 MUP and General Lukic about who's responsible for which of those 800

2 bodies, and how they'd sorted it out that the army was responsible for

3 270-some, and the MUP was saying that maybe 300 were theirs and the

4 others were unaccounted for.

5 So it seems that Pavkovic knew about these crimes but apparently

6 had not reported it to General Ojdanic before that. But if that's the

7 case, then it seems that General Ojdanic should have taken some action,

8 some punishment, some discipline against General Pavkovic, and there's no

9 evidence of any of that occurring. We say that shows an intention, a

10 shared intent, by Ojdanic with the others that the crimes be committed.

11 Now, I want to just address some of the remarks that Mr. Sepenuk

12 made in regard to this. The basics of Mr. Sepenuk's argument seems to be

13 that General Ojdanic was running a tight ship and reacting appropriately.

14 He was removed from the Kosovo units by a few levels and dependent on the

15 accuracy of the reports from the field. And he also says that the

16 operations in the spring were a reasonable response to KLA and the NATO

17 threat, and there wasn't any intention.

18 But the VJ conduct in the field, we say, it was not in March 1999

19 directed at the NATO threat. Those forces, you'll see from the -- the

20 16 February order, I think it's 20 -- P2808, this is the 40-page

21 directive or planning order from General Lazarevic. It has the subject

22 number 455-1, the first in the series of those orders from which we find

23 the 13 Joint Command orders in late March. The deployment of units were

24 not at the borders, where you might expect if they were anticipating a

25 NATO attack from Macedonia or Albania, but they were throughout Kosovo in

1 the heartland, in the area where the KLA forces were but where our crimes

2 occurred, the ones that are listed in the indictment. And these are

3 consistent with the Joint Command orders and the combat reporting from

4 the Pristina Corps and the subordinate unites.

5 This involved many VJ and MUP units on an offensive over large

6 sections of Kosovo and occurred on the dates of the crimes alleged in our

7 indictment. It also involved the armed Serb civilians, the armed

8 non-Siptar population which Ojdanic was aware of since at least February,

9 based on what we see in the collegium minutes. And the way they

10 conducted operations, excessive tactics. An example is from the

11 commander of the 37th Brigade, where he made the comparison to using an

12 elephant to kill a fly, I believe. All this meant that civilians would

13 flee, as they did in 1998, even when there was no bombing.

14 With regard to those armed civilians, Exhibit P931, which is a VJ

15 collegium meeting, Ojdanic heard that there were 47.000 armed Serbs, that

16 their wartime tasks were to defend villages and participate together with

17 army units in any operations in the immediate vicinity. Ojdanic made no

18 further comment upon hearing that. And as we've said, the Joint Command

19 orders refer to using the armed non-Siptar population. So we have a VJ

20 link to those armed civilians, who we say were armed by the VJ.

21 And prior to this meeting, in P939, the 21 January 1999 collegium

22 meeting, General Dimitrijevic had previously expressed a concern about

23 Serbs in Kosovo radicalising. So he had an express concern about the

24 attitude of the Serb civilians in Kosovo; and in a meeting after that,

25 when General Ojdanic hears 47.000 of them are being armed, we say this is

1 something that should put him on notice that crimes might occur.

2 With regard to the Joint Command in the VJ collegium meeting of

3 21 January 1999, P939, Ojdanic makes reference to the Joint Command. So

4 it's clear that even at that early date, he was aware of its existence.

5 There was a comment about reporting problems and honouring

6 October agreements. Ojdanic is presented with allegations that reporting

7 some subordinate units to the General Staff isn't accurate. I think it's

8 General Dimitrijevic that's talking about this, that some operations are

9 presented as exercises and others described as responses to KLA

10 provocation when that wasn't the case.

11 Ojdanic doesn't seem to show in the meeting a proportional degree

12 of concern about that. We point you to Exhibit P928 at page 10; P931 at

13 pages 15 to 16; P938 at page 21; P933 at page 13. Reports don't show

14 that it's the VJ initiating some attacks rather than the KLA. Instead,

15 they claim the opposite. It is Dimitrijevic and General Andjelkovic who

16 both mention this.

17 Planning for the spring. The collegium minutes P929 and P939

18 corroborate the Joint Command orders in documents such as P995, the 549th

19 Brigade post-operation analysis, describing combat operations in Kosovo

20 where the indictment incidents occurred.

21 And finally I want to say in connection with General Ojdanic, we

22 say that he is criminally liable for his participation in the JCE. At

23 the very least, he's incurred individual criminal responsibility under

24 Article 7(1) in relation to ordering, planning, or aiding and abetting,

25 and that he's also liable under Article 7(3).

1 Next, I want to move to General Pavkovic. General Pavkovic had

2 direct involvement in the joint criminal enterprise by planning,

3 ordering, and implementing the use of the VJ in Kosovo to further the

4 JCE's objective of basically ethnic cleansing, to alter the ethnic

5 balance, to maintain Serb control in the province.

6 He, too, was an integral part of the JCE through his active

7 participation in the Joint Command, by providing tactical guidance and

8 military support of the 3rd Army and its subordinate units.

9 With regard to his command position, in 1998 he'd been commander

10 of the Pristina Corps. In early 1999, we know that he was elevated to

11 become commander of the 3rd Army. In both those positions, we say he had

12 the authority to issue orders and require reporting from subordinates,

13 and therefore had effective control over those units.

14 The evidence shows that throughout 1998, General Pavkovic

15 violated the Law on Defence by using the Pristina Corps in engagements

16 within Kosovo without a declared state of war or emergency. Superior

17 officers were aware of this, as was noted in General Perisic's letter,

18 Exhibit P717.

19 Mr. Pavkovic had effective control of the Pristina Corps in 1998,

20 and was aware that crimes were being committed in Kosovo in terms of

21 excessive force and the force against the civilian population, and he

22 exhibited, we say, a willingness to disregard the rule of law.

23 In 1999, after his elevation to command the 3rd Army, he had

24 de jure and de facto control over the 3rd Army.

25 In Exhibits P1946 and 1947, you see him requesting the

1 resubordination of units outside of the 3rd Army to support 3rd Army

2 combat operations. And as commander of the 3rd Army, Pavkovic had

3 knowledge of the crimes being committed by his subordinate units. We say

4 this was derived from his substantial presence on the ground in Kosovo.

5 In his suspect interview, P949, at page 812, he indicated that 95

6 per cent of his time in Kosovo was spent at the forward command post. In

7 addition, he had regular reports from his subordinates from the Pristina

8 Corps. He had further information from the Joint Command, and we say he

9 intended to participate in the joint criminal enterprise through his

10 active role in the Joint Command.

11 Colonel Pesic told us that he knew that General Pavkovic had

12 attended Joint Command meetings in 1998, and from the minutes of the

13 Joint Command in July through October of 1998, Exhibit 1468, you will see

14 his regular attendance and participation in those meetings.

15 Mr. Cvetic also testified that Pavkovic was a member of the Joint

16 Command.

17 From within this body, the Joint Command, operational plans were

18 organised and later implemented, particularly by units under the command

19 of General Pavkovic. A review of Joint Command orders shows that

20 specific attention was paid to the use of the 3rd Army, the Pristina

21 Corps, and its subordinate units.

22 And in connection with General Pavkovic's role and participation

23 with the Joint Command, we ask you to pay particular attention to

24 Exhibit P2166. These are the minutes of a late October 1998 meeting of

25 the interdepartmental staff for combatting terrorism in Kosovo-Metohija.

1 I think the minutes are actually dated the 2nd of November, 1998, and

2 Pavkovic is the one who is assigned the task of reporting on what the

3 Joint Command has been doing for the previous several months. It goes

4 into great detail about what they've done. This is a meeting, too, where

5 it's discussed about whether the Joint Command should continue to exist,

6 and the consensus is indeed that it should, with perhaps some change in

7 membership.

8 And you'll see the report on how many KLA they report to have

9 killed in the process of those months and what strides they have made in

10 their efforts.

11 Pavkovic was the means to bring the overall command of the 3rd

12 Army to fulfil the objectives of the JCE, and we say through his

13 membership on the Joint Command, he intended the use of those units,

14 including many that he knew to have committed crimes in 1998.

15 Evidence that shows his intent. We say he intended for crimes to

16 be committed in Kosovo in part by inciting his troops. Exhibit -- pardon

17 me.

18 The testimony of K73 included his reference to a gathering of

19 members of that unit where General Pavkovic spoke to them. This is

20 shortly before the declaration of the state of war, and he indicated to

21 him that that was likely to happen and that: "Once NATO bombs begin to

22 fall, we will rid our backs of Albanians."

23 We say in light of all the evidence about what happened since

24 that date, that that was an indication of the intent to carry out and

25 implement the purposes of the joint criminal enterprise; that is, to

1 solve the problem, the Kosovo problem, that had been going on for years

2 by getting those Albanians out. We say that was not referring just to

3 the KLA, but that was to all of them or as many of them as possible to

4 bring it down to a manageable number where the Serbs could easily

5 maintain effective control.

6 It was just too hard. It was just too hard. They'd been trying

7 for a long time to deal with the KLA, and the KLA is an insurgent army

8 that sometimes would run and gun, attack from ambush, then go back to the

9 village, take off their uniform, and mix in with the civilian population,

10 a civilian population which by and large supported them, some with more

11 enthusiasm than others, but at least they provided shelter and food,

12 lodging. It was just too hard to try and sort it out anymore. And we

13 say the evidence shows, and it's a logical inference, that this was the

14 point where they had decided they weren't going to try and sort them out

15 anymore; let's just kick them out and keep them out, and then we don't

16 have to mess with it. It's too difficult, it's too hard, we've lost too

17 many good men already. We say that's a reasonable inference you can draw

18 from the evidence.

19 The VJ was a professional army with a fully functioning reporting

20 system. Those reports detail the status of operations and who was

21 involved. Combat reports from the 549th, Colonel Delic's motorised

22 brigade, indicate that joint operations with the MUP were successful.

23 You see that in Exhibit P1995 from the 30th of March, 1999, right after

24 many of the most serious crimes had occurred. Pavkovic was informed by

25 General Lazarevic of the increased movement of population in Kosovo

1 around the 30th of March, 1999. You hear that in Pavkovic's suspect

2 interview, Exhibit P949 at page 8.

3 Moreover, Pavkovic provided his superiors with detailed accounts

4 of the situation in Kosovo. It's clear that he was substantially well

5 informed. And I want to refer you now, one more time, to his suspect

6 interview, P949, at page 18, a couple items I want to point to.

7 In there, Pavkovic states that there was a conflict between

8 Kosovo Albanian and non-Albanians, Serbs and Montenegrins, which was

9 known from the previous historical situations and crimes always occurred

10 when there were such conflicts.

11 He also said that he didn't know who was taking identity cards

12 from Albanians as they left the borders, especially through the border

13 with Macedonia. It happened at Djeneral Jankovic or Kacanik, but he

14 doesn't know who did it or who gave the order. He heard it was the 10th

15 day of the campaign and the roads between Urosevac and Djeneral Jankovic

16 were completely congested. So Pavkovic informed the Supreme Command

17 Staff. He said that it must have been the MUP because although VJ

18 controlled the border areas, the MUP controlled the border crossings.

19 And at page -- I'm sorry, that's -- that's the end of that.

20 After the NATO bombings began, Pavkovic, we say, after the order

21 from the president and General Ojdanic, as Chief of the Command Staff to

22 resubordinate the MUP to the VJ -- we say after that date he had de jure

23 authority over the MUP and its subordinate units engaged in combat

24 operations.

25 And we've talked about the 17 May meeting where the discussion

1 was held regarding crimes in Kosovo with Mr. Milosevic and Mr. Sainovic.

2 In connection with that we say Pavkovic is additionally responsible for

3 the concealment of crimes and we talk about the murders that occurred in

4 Izbica. You heard from Dr. Tomasevic that General Pavkovic told her that

5 her assistance would be needed in connection with some "asanacija," the

6 cleansing or sanitation of the territory. You heard her testimony about

7 the bodies that she examined, and from the other evidence we know that

8 these were the bodies that were dug-up from Izbica. From the other

9 evidence we've suggested to you before that the digging up of bodies and

10 the then taking them to Serbia suggests some guilty knowledge on the

11 parts of those engaged.

12 Mr. Thaqi told you that he witnessed the mass murder of those men

13 who were buried there and who were among those who were exhumed from

14 Izbica.

15 Shared intent. We say General Pavkovic shared the intent of

16 other members of the JCE through his active participation in the

17 Joint Command in planning, ordering, and providing material support to

18 further JCE objectives through his position of authority over the 3rd

19 Army and subordinates.

20 He openly shared information regarding the current state of the

21 3rd Army with persons outside his chain of command. We have evidence

22 from General Loncar that Pavkovic gave information directly to Sainovic,

23 further that Pavkovic often met with President Milosevic without

24 informing his superiors. We have evidence of that from General

25 Vasiljevic in his statement Exhibit P2589 and in the transcript at

1 T15978. General Loncar's evidence about this is in his witness statement

2 at P2521.

3 Failure to prevent and punish. We say Pavkovic had knowledge

4 that crimes were being committed that made him aware of a real or

5 reasonably foreseeable risk that other crimes would be committed, and

6 that he failed to take reasonable measures to punish or prevent. Reports

7 that he had served to put him at least on inquiry notice. We say he

8 disregarded the seriousness of those offences, and this is demonstrated

9 in part through the nominal prosecution of persons for crimes against

10 civilians. See Exhibit P955, a summary of review of prosecutions;

11 Exhibit P831, report of activities undertake by the MUP to uncover war

12 crimes; and P939, report on the work of the military prosecutor. We say

13 Pavkovic should have implemented investigations into allegations and he

14 failed to take those reasonable steps.

15 In the alternative we say he, too, through his willingness to

16 provide material support with the knowledge that crimes were being

17 committed substantially contributed to fulfilling the JCE's objectives,

18 and he knew that without that support of the VJ, JCE wouldn't succeed in

19 meeting those objectives. We say that Pavkovic willingly allowed and

20 intended for the VJ to be used in Kosovo and in coordination with the MUP

21 to carried out those crimes in furtherance of the JCE. He was aware of

22 the widespread nature of crimes being committed within Kosovo. See

23 Exhibit P2508, statement of General DZ, who had reported the mass

24 depopulation of villages throughout Kosovo.

25 Further, his failure to take reasonable steps to punish and

1 prevent only encouraged and morally supported the perpetration of further

2 atrocities. Based on the foregoing, we say the evidence shows at this

3 stage, it meets the burden that General Pavkovic aided and abetted the

4 commission of the crimes charged, and he substantially contributed to the

5 commission of those crimes through his support.

6 Your Honours, this would be a good time for me to break, if

7 that's convenient.

8 JUDGE BONOMY: Ideal, Mr. Hannis. We'll resume at 11.15.

9 --- Recess taken at 10.44 a.m.

10 --- On resuming at 11.18 a.m.

11 JUDGE BONOMY: Mr. Hannis.

12 MR. HANNIS: Thank you, Your Honours.

13 I just wanted to respond to some of the remarks that Mr. Ackerman

14 made regarding General Pavkovic before I move on to talk about

15 General Lazarevic.

16 Mr. Ackerman told us that war is hell, and the gist of some of

17 his remarks seemed to be just basically: Well, these things happen.

18 Stuff happens in war, and suggests that no commander could control these

19 kinds of things.

20 I understand the essence of his remarks, but a professional army

21 has a system to eliminate as much as possible the rogue actions of

22 soldiers. They have training, they have leadership, and this isn't like

23 kids in a city street in a gang in New York or Detroit or Los Angeles.

24 Some young men with guns in combat will commit crimes, but when that

25 happens there's an obligation for commanders to take a proportionate

1 response and that means more than just charging a few individual

2 perpetrators.

3 And this war was different than some other modern wars in that it

4 wasn't a high-intensity, high-paced conventional war with one

5 conventional army against another on the ground. NATO was bombing but

6 didn't have ground troops. The confrontation was between the Serb VJ, a

7 modern professional army, with the KLA. It was a much superior force

8 using heavy weapons against a relatively smaller and more poorly trained

9 and equipped force with a substantial civilian population in the middle.

10 Mr. Ackerman suggested that we were bringing Mr. Pavkovic here as

11 based on guilt by association. That's not quite correct. Pavkovic was a

12 commander, and the units in Kosovo were his subordinate units. Crime

13 base witnesses and documents put his subordinates in the areas of crimes

14 at the time those crimes occurred. He was not far removed; he was in

15 Kosovo. And he tells us in his suspect interview that he was at the

16 forward command post 95 percent of the time when he was there.

17 He was aware of crimes during the war, for example, Izbica, and

18 the mass movement of civilians coincident with his force's operations. I

19 believe Mr. Ackerman referred to international witnesses talking about

20 1998, but they don't just talk about 1998, they talk about activities in

21 1999 as well.

22 He addressed the issue of General Perisic and his complaints

23 about General Pavkovic. He suggests that if it was really such a

24 problem, Perisic could have just removed him. We suggest the law -- the

25 laws that are in evidence don't support that. It does not appear that

1 under the law that Perisic could remove a general; he didn't have that

2 authority. It's in the SDC rules and laws. It's the FRY president

3 acting on the recommendations of the Chief of Staff who can decide

4 whether to accept a recommendation and remove a general officer. Perisic

5 could do that with a lower-level officer and with a colonel and below, I

6 believe, is what the laws say.

7 Mr. Ackerman suggested that the Prosecution's evidence about

8 Pavkovic going outside the chain of command was -- was a red herring. We

9 say it's not, Your Honour. It's relevant to at least a couple of things,

10 and you'll see that there is discussion about that in some of the

11 collegium minutes, Dimitrijevic talks about it, you've seen the reference

12 in General Perisic's letter, you've heard the evidence from

13 General Vasiljevic about what General Ojdanic told him about Pavkovic

14 seeing Milosevic without telling Ojdanic about that.

15 You've heard a lot of evidence from people who say that

16 General Pavkovic was a soldier's soldier, was an outstanding officer, an

17 excellent officer, but we say that a truly outstanding officer wouldn't

18 do that, wouldn't go outside the chain of command, wouldn't skip over his

19 commander to see the ultimate supreme commander. And the fact that he

20 was willing to do so, we say you take that with other evidence in this

21 case which shows that he was ambitious, and sometimes ambitious men are

22 willing to take an extra step, to go a little further, and sometimes in

23 doing so, they cross the line. We say that's what the evidence in this

24 case supports.

25 And certainly at this stage, there's evidence from which you can

1 make a finding that he should be held to answer in the Defence case.

2 Mr. Ackerman also made in connection with General Perisic the

3 argument that: Well, Perisic's letter complaining about this isn't

4 really all that serious because you see in July about the same time

5 Exhibit 4D137 and -- which is Perisic's directive. But you heard a lot

6 of discussion about that with General Vasiljevic when he was here, and

7 Ms. Carter I believe in her re-direct examination with Mr. Crosland about

8 that document, and I think when you read it you will see that that is not

9 an operational order. It's a planning document, and the fact that he

10 issued that planning document - which would seem to call for the use of

11 the army in combatting anti-terrorism in Kosovo - doesn't undermine his

12 position that he disagreed with how the army was being used. And it

13 doesn't show that he's willing to use the army, he's willing to make that

14 directive, but he wants that order from Mr. Milosevic. He wants that

15 declaration of an extraordinary state, a state of emergency or a state of

16 war.

17 Mr. Ackerman said there was no ordering of crimes. Well, you

18 wouldn't expect to see an order couched in those kind of terms. There's

19 no need to do that, as a matter of fact, when the tactics and the units

20 being used achieve this under the guise of a routine operation. There

21 was a suggestion that Mr. Pavkovic had assisted the Prosecution by

22 turning over documents, which indeed he did do. He turned over

23 documents. I believe you have from Mr. Coo or you've seen a list of what

24 the documents were. We would suggest that many of those are more

25 self-serving than anything.

1 Joint Command. The lack of reports to the Joint Command doesn't

2 mean that it didn't exist. There are significant gaps in the record. We

3 don't have the Pristina Corps war diary. We're missing combat reports.

4 You heard Mr. Coo's evidence about the difficulties in actually finding

5 Joint Command documents, and I'll talk about that again in a moment when

6 I talk about General Lazarevic. The Joint Command documents don't match

7 the requirements of official documents. They don't have a distribution

8 list and there's no signature, but Pristina Corps documents and brigade

9 documents and orders and reports do make reference to Joint Command

10 orders in both 1998 and 1999. Certainly it was un-Orthodox, the Joint

11 Command, but there's no sign it was fictional, quite the contrary.

12 Joint Command orders may say "I have decided ...," but they also

13 say "operations will be commanded by the Joint Command." And they do

14 list roles for both the MUP and for non-Siptars.

15 I want to turn now to General Lazarevic. Each other accused had

16 a particular responsibility within this joint criminal enterprise.

17 General Lazarevic provided the tactical knowledge and equipment and men

18 to implement on the ground the objectives of the JCE. He was a commander

19 of the Pristina Corps, the primary VJ body in Kosovo. We say Lazarevic

20 planned, ordered, controlled, commanded, and encouraged the VJ Pristina

21 Corps, the MUP, and subordinate forces in the pursuit of the objective of

22 the joint criminal enterprise: Ethnic cleansing to alter the ethnic

23 balance in Kosovo, to enable continued Serb control in the province. He,

24 too, played an integral role in policy decisions in coordination of

25 operations of the FRY and Serbian forces within Kosovo.

1 Vasiljevic tells you that Lazarevic was at a Joint Command

2 meeting in June 1999. Colonel Pesic tells you that he knows Lazarevic

3 attended Joint Command meetings. And Joint Command orders were issued

4 directing the VJ to support the MUP in operations against the Siptars.

5 The first one I think we showed you was Exhibit P1967. The

6 drafting similarities and style of these Joint Command orders to Pristina

7 Corps orders exhibit a close connection between the Pristina Corps and

8 the Joint Command.

9 But think about it. Who is involved in the Joint Command from

10 what we know? Mr. Sainovic, so you have a politician, a nonsoldier; we

11 have General Pavkovic and General Lazarevic, so you have representative

12 of the VJ; and you have the MUP, the police, General Lukic. But in terms

13 of combat, who in that group knows how to write orders, combat orders?

14 It's not Mr. Sainovic and it's not the MUP, even though they engage in

15 combat activities and they do police anti-terrorist operations, it's not

16 the same as controlling huge numbers of men and different components of

17 forces over large areas of territory. So it makes sense that if there's

18 someone in the Joint Command who's going to draft these orders, it will

19 be somebody from the military, and that's why Joint Command orders look

20 like VJ orders, look like Pristina Corps orders. It's only logical.

21 Furthermore, General Lazarevic personally signed -- we have the

22 stamped and signed amendment to the Joint Command order for joint combat

23 operations. I think the amendment is Exhibit P1967 or 1966. I can't

24 remember which one's the amendment and which one's the original. But

25 you'll see that reference. So, clearly General Lazarevic is aware of it

1 and appears to be recognising the authority of the Joint Command because

2 he's not telling anybody to ignore the Joint Command orders, he's simply

3 making an amendment to it.

4 The orders from the Joint Command often include the

5 Pristina Corps and assigns specific tasks within locations and areas

6 where our alleged crimes were committed. Thus, as a member of the

7 Joint Command, General Lazarevic had a direct impact on the operations

8 that led to carrying out the objectives of the JCE.

9 From this evidence, we say you can conclude that

10 General Lazarevic attended Joint Command meetings to provide information

11 and actively participate in the coordinated efforts of the JCE -- of the

12 VJ and the MUP.

13 General Lazarevic had de jure and de facto authority over the

14 Pristina Corps. He assumed command on the 28th of December, 1998.

15 That's in Exhibit P801. In addition to the forces that normally fell

16 under him, the 72nd Special Forces Brigade and the 63rd Brigade were also

17 under his command. This was part of the increased manpower that came

18 into Kosovo and, we say, in anticipation of the spring offensive.

19 General Lazarevic exercised effective control over the

20 Pristina Corps by ordering and making changes or amendments to directives

21 and orders issued by the Joint Command and the VJ General Staff. You'll

22 see exhibit -- an exhibit is referred to in General Lazarevic's

23 interview, which is Exhibit P950. That is order number 455-172 from the

24 Joint Command.

25 Lazarevic further ordered the resubordination of the MUP in

1 accordance with orders he had received from the army command. This

2 authority is further illustrated by his amendment, which calls for

3 specific steps by the VJ to support the MUP. It is 1967, I recall now,

4 Your Honours.

5 Other examples of his authority to issue orders and command units

6 of the Pristina Corps include Exhibit P1503 from the 27th of May, 1999,

7 where the Pristina Corps, the 37th Motorised Brigade from the 2nd Army

8 and the 15th Armoured Brigade were to conduct combat operations aimed

9 against the KLA in the Prekaz area.

10 Furthermore, an order from the command of the Pristina Corps,

11 back at a time when Lazarevic was still the Chief of Staff, decided that

12 the Pristina Corps and its subordinates were to follow the orders of the

13 Joint Command. That's Exhibit P1428. That came out in -- on the 14th of

14 August, 1998, and, as far as we can tell, remained in place throughout

15 the indictment period.

16 Relating to 1998, we also see General Lazarevic in Exhibit P969,

17 the 7th of -- or the 10th of August -- 10th of July, 1998, issuing an

18 order to his troops not to fire if international observers were present.

19 You'll see this is an order talking about the artillery, and we say this

20 is evidence showing that the VJ was aware of the presence of

21 international observers in the area, the complaints that had been made

22 about them using excessive force, and taking steps to avoid international

23 observers see them do that kind of thing.

24 We say this also explains in part why a witness like Shaun Byrnes

25 say he never saw the VJ use any heavy artillery against a village; but

1 that's contrary to other evidence you have heard in this case about what

2 was done in the summer of 1998.

3 General Lazarevic, as Pristina Corps Chief of Staff in 1998, was

4 aware that crimes were being committed by units of the Pristina Corps,

5 and upon his elevation to commander of the Pristina Corps in December of

6 1998 and subsequent thereto, there's no indication that he replaced any

7 of those persons responsible. His failure to do so, we say, indicates he

8 intended that further crimes be committed.

9 As we've said before in connection with Generals Ojdanic and

10 Pavkovic, the VJ had a very elaborate reporting system and a chain of --

11 and a clear chain of command. Lazarevic has admitted that he would

12 receive reports about the general situation in Kosovo.

13 Lazarevic had first-hand operation -- had first-hand knowledge of

14 operations of the Pristina Corps in the field from his own visits to the

15 forward command post and from monitored radio communications of units on

16 the ground in Kosovo. He tells us that in his suspect interview at

17 pages 4 through 8. He often accompanied General Pavkovic, the 3rd Army

18 commander, on unit operations -- observations and command post visits.

19 This is also in his suspect interview, Exhibit P950.

20 In January 1999, after he had taken command of the

21 Pristina Corps, he continued to engage some of those same units that he

22 had reason to know had engaged in crimes in 1998.

23 In April of 1999, Vasiljevic tells us that he was notified by the

24 Pristina Corps chief of security, who would have worked with

25 General Vasiljevic and with General Lazarevic, of the possible

1 involvement of the 252nd Armoured Brigade in killings at Mali Alas. This

2 is referred to in Exhibit P2594 at paragraphs 54 through 58, the

3 statement of General Vasiljevic.

4 This unit, the 252nd, was a subordinate unit of the

5 Pristina Corps, and yet on 25 May 1999, a month or so after this

6 information came to Vasiljevic's attention, Lazarevic issued an order for

7 the continued destruction of the KLA and ordered the continued use of the

8 252nd Armoured Brigade in that operation.

9 We say continued use of units like the 252nd indicate that it was

10 the intention of General Lazarevic that his troops continue to pursue the

11 actions that led to the ethnic cleansing, deportation, and forced

12 transfer of Kosovo-Albanians. That failure to take reasonable measures

13 to prevent and punish only encourages and provides an environment that

14 fosters commission of future behaviour by the same and other units.

15 Through his position as commander of the Pristina Corps and as a

16 member of the Joint Command, he had the authority to order the use of

17 materials and men to implement the purposes of the JCE, and he had

18 knowledge about which units had committed crimes in 1998 and would likely

19 commit future crimes. He was aware of these crimes through the VJ's

20 reporting system and from being on the ground in Kosovo. We say that

21 evidence shows he intended the continued perpetration of those kinds of

22 crimes.

23 General Lazarevic further shared the intent of the other members

24 of the JCE by actively participating in the meetings of the Joint Command

25 headed by Mr. Sainovic, and he actively planned, organised, and ordered

1 the use of the Pristina Corps to implement the intentions and objectives

2 of the Joint Command. We say this is evident from Exhibit P1428, an

3 order from the command of the Pristina Corps directing the Pristina Corps

4 and subordinate units to follow the orders of the Joint Command.

5 There's similar information in a 25 April 1999 combat report,

6 Exhibit P2016.

7 In addition, General Lazarevic gave information about the current

8 position and status of the Pristina Corps during the meetings attended

9 with other members of the JCE, including General Lukic, General Pavkovic,

10 and Mr. Sainovic. He intended to participate in the JCE and to share the

11 intent of those other members.

12 We want to address the failure to prevent or punish. We say he

13 was in possession of information that provided him with knowledge that

14 there was a real or reasonable risk that crimes would be committed, and

15 he failed to take reasonable measures to prevent future crimes. He was

16 aware of joint VJ-MUP operations in 1998 and early 1999. He knew of

17 excessive use of force during those operations. He certainly knew of

18 allegations of excessive force from several sources. He received

19 information and reports from his subordinates, from his superiors, the

20 media, and other international organisations and observers that at least

21 put him on inquiry notice about such allegations.

22 General Lazarevic permitted the use of VJ troops and volunteers

23 that previously had acted unlawfully. We refer you to the statement of

24 Fred Abrahams in Exhibit P2228.

25 Because he permitted and facilitated the commission of these

1 crimes through his position as commander of the Pristina Corps, we say he

2 aided and abetted the JCE. Without the support of the Pristina Corps,

3 the objectives could not have been achieved. They were the primary tool

4 in this joint criminal enterprise. He willingly provided material

5 support to the JCE, and he provided informational and strategic support

6 to the Joint Command. He had knowledge of the widespread crimes, he knew

7 that his willingness to allow the use of his Pristina Corps troops was a

8 substantial contributor in achieving the goals of the JCE. He failed to

9 take necessary and reasonable disciplinary measures, and this simply

10 encouraged and instigated the commission of further crimes. By so doing,

11 we say he aided and abetted the crimes charged.

12 I want to address some of the remarks that Mr. Bakrac made and

13 one final comment about General Lazarevic in the Joint Command.

14 JUDGE BONOMY: Before you do that, just --

15 MR. HANNIS: Yes.

16 JUDGE BONOMY: -- clarify for me one thing, Mr. Hannis. In

17 relation to Messrs. Ojdanic and Pavkovic, you've also presented the

18 alternative to a JCE, that there was 7(1) liability for ordering,

19 planning, and as well as aiding and abetting.

20 MR. HANNIS: Yes.

21 JUDGE BONOMY: You seem merely to refer to aiding and abetting in

22 this instance.

23 MR. HANNIS: I did.

24 JUDGE BONOMY: Was that deliberate?

25 MR. HANNIS: No, that was an oversight on my part. I would make

1 the same submissions regarding General Lazarevic as JCE, ordering and

2 planning, as I did for General Ojdanic and Pavkovic.

3 JUDGE BONOMY: Thank you.

4 MR. HANNIS: Thank you, Your Honour, for bringing that to my

5 attention.

6 Mr. Bakrac pointed out that the VJ acted professionally and cited

7 Mr. Byrnes and Colonels Crosland and Ciaglinski for that proposition, but

8 we point you to other testimony of General Crosland about the tactics of

9 the VJ and that he found them excessive. Exhibit P2591, the 37th Brigade

10 post-operational analysis from April of 1999, a reference to using an

11 elephant to kill a fly suggests that the tactics were excessive, and thus

12 not professional.

13 He argued that Mr. Lazarevic was not in a joint criminal

14 enterprise, if there was one, nor was he in the Joint Command. I want to

15 address that last thing with a reference to his interview, Exhibit P950.

16 But we do have evidence from Pesic and -- and Vasiljevic about Lazarevic

17 attending Joint Command meetings. We do have Exhibit P1967, his signed

18 amendment of the Joint Command order. Also, the Joint Command orders all

19 specify a role for the armed non-Siptar population, which links the local

20 defence to the VJ. And we say this helps with regard to identifying the

21 perpetrators because we say this shows that they were all - and when we

22 say "they all," we mean VJ and subordinate units, we mean MUP and

23 subordinate units and we mean the local defence - they were all under

24 control of these accused.

25 With regard to the Joint Command, General Lazarevic was

1 interviewed after he arrived in The Hague. At that time, he was

2 interviewed in part by an investigator and by Mr. Coo. The OTP only had

3 one document from the Joint Command at that time, which was shown to the

4 witness, and he was asked about it. I'm reading from page 27 of

5 Exhibit P950, and he's asked if he knows anything about this

6 Joint Command or this document. He said:

7 "Just before I wanted to tell you that on several occasions. I'm

8 not certain whether it was more than twice there have been -- there have

9 been a document some sort -- some kind of instruction or where even --

10 even the heading of the order said Joint Command, and I've seen several

11 of these papers, these documents, but without signature. Nobody signed

12 them. For me and a group of men at the forward command post in

13 Djakovica, there was only the Pristina Corps command, and none of my

14 subordinates ever asked me what the Joint Command was and whether they

15 should listen to me or to them. Personally, I believe this was probably

16 a technical mistake in the name. I don't know whose mistake this was,

17 and I don't know who came up with the idea to name itself, but I would

18 like to assure -- to assure you that this mistake had nothing to do with

19 where I was at the time with the rest of the men at the forward command

20 post, because if I thought anything different than what I'm saying now,

21 I -- be assured that I would react, that I would have reacted as an

22 officer and in 1998 already the same way I did react in 2001, when

23 something to this but much more serious was attempted to be done in the

24 south of Serbia when a coordination body tried to take over -- take

25 command over the army and the police and to curb terrorism."

1 Your Honours, we say that is difficult to swallow when you see

2 all the references to the Joint Command, the evidence about him attending

3 the Joint Command meetings, and the fact that he authored an amendment to

4 the Joint Command order signed and stamped by him, it's admitted into

5 evidence, there's really no question as to authenticity. And yet, when

6 he's here interviewed and he's shown a document, he's trying to say: Oh,

7 I might have seen some things like that, but I didn't know anything about

8 them and if I thought there really was something like that, I would have

9 taken action.

10 Your Honour, we say that is evidence from which you can infer

11 that he was aware that Joint Command existed, and we suggest he was aware

12 that they were engaged in a joint criminal enterprise, just as other

13 accused in this case have tried to run away from the Joint Command and

14 deny its existence, it's there and it's not going away.

15 I'm not sure why it is so sensitive, unless maybe it's because

16 Joint Command starts with the same letters as "joint criminal

17 enterprise." They're both JCEs, and we say there is a close connection

18 between those two, more than an alphabetical one.

19 For all those reasons, Your Honour, we think at this stage we

20 have shown -- the Prosecution has presented sufficient evidence for the

21 case to go forward on all five counts as to these accused. I'm going to

22 shut up now and sit down, and Mr. Stamp will address the other three

23 accused and some other matters with you.

24 Thank you.

25 JUDGE CHOWHAN: Mr. Hannis, I have a question, a little

1 digression from all the seriousness in this. And while arguing, you

2 pointed out that -- you mentioned about the professional army's role

3 against rogue soldiers. And I immediately was reminded of "Arms and the

4 Man" by Bernard Shaw and that also pertains to Balkans. Is there a

5 relevance when he calls those he met as chocolate cream soldiers, any

6 relevance to that?

7 MR. HANNIS: I'm not sure, Your Honour.

8 JUDGE CHOWHAN: Okay. Thank you.

9 MR. HANNIS: Thank you.

10 JUDGE BONOMY: Thank you, Mr. Hannis.

11 MR. HANNIS: I see --

12 JUDGE BONOMY: Mr. Fila.

13 MR. FILA: [Interpretation] I do apologise for interrupting you

14 and for disturbing the order, as it were, but since Mr. Hannis gave

15 references for all his assertions, about five minutes ago he said that

16 the Prosecution knows that Sainovic was a member of the Joint Command in

17 1999.

18 Could I kindly have a reference on the basis of what they have

19 this knowledge so that I could share this knowledge with him? That is

20 the only thing I wish to say. Thank you.

21 JUDGE BONOMY: I think if you wait until you've heard Mr. Stamp's

22 submissions, you might be in a better position to know whether there is a

23 basis for this assertion and it would be best, I think, in any event if

24 there are matters to be cleared up for the Defence if that's done at the

25 end of the complete Prosecution submission.

1 Mr. Stamp.

2 MR. STAMP: Thank you very much, Mr. President, Your Honours, may

3 it please you.

4 As indicated by my learned colleague, Mr. Hannis, I'll make

5 submissions in respect to the 98 bis applications made on behalf of

6 Mr. Milutinovic, Mr. Sainovic, and Mr. Lukic, and I'll also make a few

7 general comments, comments that apply to the -- all the accused in

8 respect to Article 7(3) liability and one or two other comments on some

9 other aspects of the evidence which we submit also applies to all the

10 accused, including the evidence of the disposal of bodies.

11 There has been quite a lot of evidence tendered in this case over

12 the last few months and there is limited time so I am going to be

13 selective in the evidence I refer to. I will try to address you within

14 the confines of what is expected, as Mr. Hannis submitted at this stage,

15 that at this stage we're concerned with evidence on which a reasonable

16 trier of fact could act and not evidence that goes beyond a reasonable

17 doubt. We are not at that stage yet, so I will be generally referring

18 the Court to the evidence I intend to rely on, and I will try to address

19 the submissions of my friends for the Defence directly, even though I

20 would make general submissions about our case as a whole in respect to

21 the accused. So if I have missed something in respect to any of the

22 submissions, I would be grateful if the Court has any concerns if that

23 could be raised.

24 And I am reminded that I should go a little bit more slowly.

25 I wish to start, Your Honours, with the submissions made by my

1 learned friend Mr. O'Sullivan on behalf of Mr. Milutinovic, and I, as I

2 indicated, will respond specifically to those submissions and will also

3 make some comments on the general evidence which I believe supports the

4 charges in respect to that accused.

5 I think the first and major thrust of learned Defence counsel's

6 submission is that Mr. Milutinovic, as head of state or president of

7 Serbia had no statutory or public authority over public administration.

8 He was mainly, primarily a symbol of national unity, and therefore had no

9 effective authority to exercise. And the Defence submission is that

10 these, therefore, negate the allegations of the Prosecution in paragraphs

11 8 and 35 and 36 of the indictment, where we submit that he had powers to

12 do something about what was happening and failed to do so. And I submit

13 that there's copious evidence indicating that he had the powers, as

14 alleged in the indictment, and that in the exercise of these powers he

15 furthered the implementation of the joint criminal enterprise, and in

16 omitting to exercise some of his powers he also furthered the

17 implementation of the joint criminal enterprise.

18 Now, clearly there are formal and de facto by looking at his

19 formal powers, and especially those that we have referred to in

20 paragraphs 8, subsection (iii) and 35, subsection (e) and (f), and

21 35 -- 36(g) and (h) of the indictment, that is his participation in the

22 JCE and the commission of the crime by failure to act as the president.

23 And, firstly, I'd like to look at the role of the president under

24 the constitution of Serbia and the constitution is P855 I think there are

25 two copies because there is also P1021.

1 And under that constitution, the president of Serbia is a very

2 powerful individual. He stands in a very strong position. He is

3 directly elected by the people of Serbia under Article 86, and he can

4 only be removed from office on impeachment by a two-thirds majority of

5 all the members of the National Assembly. That's at paragraph 88 -- or

6 Article 88, paragraph 2 of the constitution. And even then he can only

7 be recalled if there is a majority of the votes for his recall at the

8 referendum Article 88, paragraph 3 of the indictment [sic], and in

9 certain circumstances he can dissolve the National Assembly upon proposal

10 of the government.

11 What are his primary duties under the constitution? Because I

12 will come later to the importance of identifying what his legal duties

13 are -- not just moral duties, but legal duties.

14 His primary duties can be gauged from his oath of office. In

15 section 86 of the constitution. And that is where he swears to devote

16 himself to the realisation of the human rights and the preservation of

17 the peace and welfare of the citizens of Serbia. It is very brief, if I

18 could just read it quickly, and I should say that the articles of the

19 constitution that deal with the powers of the president are -- are not

20 very lengthy, and I would ask Your Honours to look at those powers

21 because they indicate what figure the president of Serbia and what powers

22 and authority he had in the circumstances of the allegations of this

23 case.

24 His oath of office was:

25 "I swear that I shall devote all my forces to the preservation of

1 sovereignty and integrity of the territory of the Republic of Serbia to

2 the realisation of human and civil freedoms and rights, to the

3 observation and defence of the constitution and laws, and to preserving

4 the peace and welfare of all citizens of the Republic of Serbia, and that

5 I shall conscientiously and responsibly meet my duties."

6 Preserving the peace and welfare of all citizens of Serbia. In

7 paragraph 88, the constitution provides that the president of Serbia

8 shall be responsible to the citizens of Serbia.

9 So how does the constitution of Serbia enable the president to

10 discharge this paramount of all responsibilities, the preservation of the

11 human rights and peace of its citizens?

12 Your Honours, the constitution at section 85 invested in him

13 significant oversight powers, mainly, as we have alleged in paragraph 8,

14 subsection (iii) of the indictment, to request any organ of government,

15 the MUP for example, to state its viewpoint concerning questions falling

16 within its jurisdiction; in other words, for them to report to him on

17 what they were doing in the exercise of their governmental functions.

18 It was submitted by learned counsel for the Defence for

19 Mr. Milutinovic that that should be construed with the provisions of the

20 Law on Government, which is P1862. But if Your Honours have a look at

21 that, insofar as is relevant the Law on Government provides, and this is

22 Article 19, that:

23 "At the request of the president, the government shall take a

24 position on certain issues within its jurisdiction and inform the

25 president thereof within a time he determines being not less than 48

1 hours."

2 So basically all the Law on Government does is regulate the time.

3 It gives the government organs 48 hours to report to the president.

4 So, Your Honours, the Prosecution's position is that this was not

5 an exercise in idleness as if he was given a responsibility as president,

6 a burden to carry without any power, any authority to achieve it. He

7 could have intervened to protect the peace and welfare of the Kosovar

8 Albanian citizens of Serbia, if he so wished.

9 He, himself, recognised that, because in his statement or in his

10 interview to the OTP, he agreed that in March 1998, in respect to the

11 Jashari incident -- and that is an incident that is referred to in the

12 indictment, the paragraph I can't recall just now on the pre-trial brief.

13 Mr. Milutinovic says that when he heard about that incident, he called

14 officials, including the minister of interior, and had them brief him

15 about it. This was in March 1998, sometime before the JCE -- the joint

16 criminal enterprise crystallised, as we -- we allege in the indictment.

17 So not only did he have this significant oversight power, but he

18 knew that he could exercise it and how to exercise it. And this, on a

19 fair reading of his interview to us, at all times when he exercised his

20 constitutional power to call the minister of interior to account for

21 incidents in which Kosovar Albanians were persecuted.

22 So before I move on, if I may just briefly address on the law in

23 respect to this issue. The existence of the mode of liability of

24 commission through omission under Article 7(1) of the Statute of the ICTY

25 has been acknowledged in the jurisprudence of the Tribunal, and that is a

1 Kvocka appeals judgement at paragraph 187. Requirements are an omission

2 or a failure to act, an ability to act, and a duty to act. In other

3 words, it goes beyond just a moral duty of an individual to stop

4 oppression, but there must be a duty under some rule of law. And the

5 authorities are the Blagojevic and Jokic trial judgement and various

6 cases cited in that judgement, as well as from the -- the appeals

7 division of the ICTR, the Rutaganira trial judgement at paragraph 68 and

8 the Ntagerura, N-t-a-g-e-r-u-r-a, et al. appeals judgement at paragraphs

9 3, 34, 35.

10 Now, it is sufficient, Your Honours, that the accused acted -- or

11 may I repeat it. It is sufficient that had the accused acted, he or she

12 would have made it more difficult for the other members of the JCE to

13 implement.

14 The head of liability for commission by omission has been applied

15 to aiding and abetting in Krnojelac appeal judgement at paragraphs 37 and

16 43, to instigating in the Galic appeal judgement recently upheld at

17 paragraph 168, and the duty to act should be assessed on a case-by-case

18 basis.

19 The source of the duty can arise in various circumstances. In

20 this case, as I have submitted, it arose under the constitution, the

21 primary law of the Republic of Serbia, but it also arises on the

22 international humanitarian law that a head of state or a head of

23 government or a president of a republic has towards its citizens.

24 In addition to omission by commission as part of the -- or

25 commission by omission as part of the actus reus for participation in the

1 JCE or the other forms of commission under 7(1), Article 7(1), a

2 Trial Chamber may infer the intent to commit an act or to commit the

3 crimes from the omissions. The Trial Chamber in Galic at paragraph 722

4 held, and I quote:

5 "The omission by the SRK" -- that is Sarajevo-Romanija Corps

6 Command -- "indicates that the accused had the deliberate intent to allow

7 the situation and behaviour to continue." The deliberate intent.

8 The Trial Chamber also held at paragraph 745 that:

9 "The inference is compelling that the failure to act for a period

10 of 23 months by a corps commander who had substantial knowledge of crimes

11 committed against civilians by his subordinates and is reminded on a

12 regular basis of his duty to act upon that knowledge bespeaks a

13 deliberate intent to inflict acts of violence on civilians."

14 And this was upheld by the Trial Chamber -- by the Appeals

15 Chamber.

16 Outside the context of military superiors, this principle also

17 applies. It's a common-sense principle, and it has been recognised also

18 in the jurisprudence of the -- of the Tribunal.

19 In the Simic case, the Defence argued that Simic had no authority

20 over persons committing crimes; however, the Trial Chamber found that

21 Simic, as the highest-ranking civilian in Bosanski-Samac municipality,

22 had the opportunity and responsibility to protect non-Serbs from crimes.

23 And that's paragraph 994 of the Simic trial judgement.

24 The Appeals Chamber at paragraph 108 of its judgement re-affirmed

25 that as president of the Crisis Staff, Simic had an obligation to try

1 every possible measure to prevent non-Serbs from being persecuted. The

2 Appeals Chamber further held that Simic failed to take significant steps

3 to prevent the continued arrests and detention of non-Serbs, and from

4 this the only reasonable conclusion that could be drawn from its

5 aforementioned findings is that he did so with a discriminatory intent.

6 And it re-affirmed the Trial Chamber's position that the only, only,

7 reasonable inference to be drawn in the circumstances from those facts is

8 that Blagoje Simic shared the intent of the participants of the joint

9 criminal enterprise.

10 So the duty and the implications arises under the constitution of

11 Serbia and on the international humanitarian law in respect to a high

12 official or a position -- or an official holding high public office to

13 protect civilians from persecution, and from this it is submitted

14 respectfully that a Trial Chamber could infer that Mr. Milutinovic not

15 only encouraged and promoted, instigated the crimes as alleged by

16 contributing to the environment of impunity, but also intended the crimes

17 charged in the indictment and intended to participate in the joint

18 criminal enterprise.

19 JUDGE BONOMY: Mr. Stamp.

20 MR. STAMP: Yes.

21 JUDGE BONOMY: Can I ask you two questions? Is the only source

22 of the duty to which you've referred what is said in the oath of office?

23 MR. STAMP: The -- the oath of office of the constitution.

24 JUDGE BONOMY: The only source in the constitution for that

25 duty --

1 MR. STAMP: Yes, Your Honour.

2 JUDGE BONOMY: -- is the oath of office?

3 MR. STAMP: The oath of office, and the section 88 in which he is

4 responsible to the citizens of -- of Serbia.

5 JUDGE BONOMY: And second question I have is, you said that

6 commission by omission is recognised where there's a failure to act, a

7 duty to act, but there was a third element and that was the ability --

8 MR. STAMP: The ability.

9 JUDGE BONOMY: -- the ability to act. Now, what do you say ought

10 to have been done?

11 MR. STAMP: The -- I was coming to that, but the responsibility

12 of the president under the constitution, the power he's given under the

13 constitution, is a power to raise an alarm, really, in the corridors of

14 government. The test, as enunciated in the cases that I cited, is

15 whether or not by doing something, anything at all, as I indicated about

16 the Simic case, he must try everything possible, whether by doing

17 something it would have made it more difficult for the carrying out of a

18 joint criminal enterprise. Here the constitution said he could call up

19 the minister and say --

20 JUDGE BONOMY: Yeah.

21 MR. STAMP: -- what about 250.000 Kosovar Albanians being made

22 internally displaced people, persons? What about these villages that we

23 are told being flattened? What about this United Nations resolution

24 about the excessive force by the police against one sector of a society?

25 What about the various reports that he got from the leader of the Kosovar

1 Albanians, Mr. Rugova? Various international figures complaining about

2 specific incidents. He --

3 JUDGE BONOMY: Thank you.

4 [Trial Chamber confers]

5 MR. STAMP: And ...

6 [Trial Chamber confers]

7 JUDGE BONOMY: Please continue, Mr. Stamp.

8 MR. STAMP: Thank you. Thank you, Your Honours.

9 So in examining the evidence, particularly in respect to the JCE,

10 the joint criminal enterprise that had developed, and I refer to the

11 joint criminal enterprise because the law in respect of the joint

12 criminal enterprise is that the contribution need not be substantial once

13 it makes it more difficult -- once by doing something, it makes it more

14 difficult that he has contributed to the JCE.

15 The question is whether the president could have exercised his

16 formal or de facto power, and I want to discuss there in respect to the

17 power -- I'm sorry.

18 JUDGE BONOMY: Well, I'm confused by your last submission. You

19 said that by doing -- the contribution need not be substantial once it

20 is -- once by doing something, it makes it more difficult that he has

21 contributed to the JCE. I don't understand that.

22 MR. STAMP: I'm sorry, Your Honours. I -- the submission is that

23 insofar as a law in respect to joint criminal enterprise is concerned,

24 one's contribution or part or participation in a joint criminal

25 enterprise as a member need not be substantial, as in this case the

1 contribution by omission is sufficient as long as it makes it more

2 difficult for other members of the joint criminal enterprise to implement

3 or to perpetrate the crimes in the joint criminal enterprise.

4 JUDGE BONOMY: I thought the submission was the opposite earlier,

5 that his obligation was to make it more difficult for members of the JCE

6 to act, and that's what would have taken him out of the JCE.

7 MR. STAMP: Yes, Your Honour.

8 JUDGE BONOMY: All right.

9 MR. STAMP: His obligation was to act to make it more difficult.

10 I just expressed it in the reverse.

11 JUDGE BONOMY: Well, okay, if that -- I'll accept that the first

12 version was what you intended. Thank you.

13 Are you trying to say that it's sufficient as long as it does not

14 make it more difficult for other members, or are you confusing what's

15 necessary for involvement in a JCE with what is necessary in the form of

16 failure to make you a member of the JCE?

17 MR. STAMP: No, Your Honour. I'm not confusing the two at all.

18 The submission is that as far as a joint criminal enterprise is

19 concerned, one's act of participation need not be substantial --

20 JUDGE BONOMY: Yes.

21 MR. STAMP: -- the participation of a -- of anybody who is a

22 member of that JCE need not be substantial.

23 JUDGE BONOMY: Yes.

24 MR. STAMP: In this situation, we are speaking about

25 participation by omission. It is sufficient that had he done something,

1 it would have made it more difficult for the other members of the JCE to

2 carry out the JCE.

3 JUDGE BONOMY: That was your original submission. Thank you.

4 MR. STAMP: So, if I may, Your Honours, with your leave move on

5 to his role in the Supreme Defence Council, because he also had powers as

6 a member of the Supreme Defence Council. It seemed to me that the

7 submissions of my learned friend for the Defence was that the

8 Supreme Defence Council was merely an advisory body. The president of

9 the republic exercised all the authority over the VJ and could, whenever

10 he wished, accept or not advice from the SDC.

11 The Prosecution's submission is that as a member of the

12 Supreme Defence Council, Mr. Milutinovic had significant powers as well

13 to affect or prevent the perpetration of these crimes, and that he either

14 failed to exercise these powers, to impede the joint criminal enterprise,

15 or when he did, he did so in agreement with Mr. Milosevic to further the

16 joint criminal enterprise.

17 Just a side note. I think it was Mr. Fila who submitted for

18 Mr. Sainovic that the -- it was the SDC that exercised command functions

19 over the army; whereas the position seems to be slightly different as

20 submitted by Mr. O'Sullivan for Mr. Milutinovic.

21 The FRY constitution, the -- and that's the Federal Republic of

22 Yugoslavia, the Federal Republic of Yugoslavia Law on Defence, the

23 Federal Republic of Yugoslavia Law on the VJ, all demonstrate that the

24 SDC was a body which made decisions which governed the armed forces, that

25 is the army, and not only advised. These laws show that the SDC had the

1 authority to make decisions in respect to military issues, including the

2 activation, deployment, the command system in the VJ. And all the laws

3 provide that the president of the republic shall act in accordance with

4 these decisions. The operative word is "shall." That is, the president

5 of the republic has no discretion to act outside of the directives of the

6 SDC. The SDC was the highest civilian body with responsibility for

7 national defence and employment of the VJ.

8 Under the FRY constitution, that is P856, at Article 135 it is

9 stated that the VJ shall be under the command of the president of the

10 republic, that's the president of the FRY, pursuant to the decisions of

11 the SDC. The FRY Law of Defence at paragraph 985 states in Article 40:

12 "In accordance with the decisions of the SDC" the president of

13 the republic commands the VJ in wartime and peacetime.

14 And Article 8 of the same Law of Defence, P985, states that in a

15 case of an imminent threat of war, a state of war or a state of

16 emergency, the president of the republic shall, pursuant to decisions of

17 the supreme council, order measures of readiness, mobilisation and use of

18 the armed forces of Yugoslavia. Similarly, Article 41 of the Law on

19 Defence provides that the SDC renders decisions in accordance with which

20 the president of the republic commands the Army of Yugoslavia, that the

21 SDC determines the strategy of armed conflicts, and rules of the use of

22 the forces of the country's defence and the conduct of war. The SDC

23 determines the rules on the use of the country's defence and conduct of

24 war.

25 The FRY law on the VJ at P984 reiterates at Article 4 that the

1 president of the republic shall command army, war and peace in accordance

2 with the decisions of the SDC and Article 4 states that the president in

3 accordance with the decisions of the SDC shall decide on the deployment

4 of the army and approve the plan for its use, determine the system of

5 command in the army and oversee its implementation, regulate an order of

6 readiness of the army in a state of war, issue basic regulation and other

7 acts related to deployment of the army and perform other duties relating

8 to command over the army in accordance with federal law.

9 So these provisions indicate, quite clearly, that the SDC had a

10 major element of control over the employment of the armed forces and that

11 the president of the republic was not independent of the SDC in his

12 management and deployment of the armed forces.

13 Again, if we look at the minutes of the SDC. For example, the

14 minutes of the 8th Session of the SDC, and that's P1000. It was

15 determined that the SDC would continue to be apprised of all matters

16 regarding the army and all remarks should be discussed and taken into

17 account in the decision-making process of the SDC. The decision-making

18 process, indeed, Your Honours, if you review the submissions by my

19 learned friend, even on occasion in discussing the role of the SDC, you

20 determine decisions in some of what it did. It was not merely advising.

21 Not only did Mr. Milutinovic had have powers as a member of the

22 SDC, but the minutes also show that he was an important participant in

23 making decisions re: Some of the most important issues when we are

24 discussing the sort of allegations we have in this case, personal issues,

25 which commanders do you place where? Which commanders do you retire?

1 Which commanders do you promote? He was actively engaged in making these

2 decisions. He, himself, on occasion referred to clearly VJ-related

3 matters. And there were discussions within the SDC of budget matters,

4 personnel matters, and significantly the matter of replacing the highest

5 officer of the VJ, the head of the General Staff. Mr. Milutinovic

6 participated in the removal of Mr. Milutinovic [sic] and his replacement

7 by General Ojdanic about whom my learned colleague Mr. Hannis has

8 discussed.

9 I beg your pardon, I misstated. Mr. Milutinovic participated in

10 the removal of General Perisic and his replacement by General Ojdanic.

11 That is in Exhibit P1576 at page 4, the minutes of that SDC meeting. You

12 see one member of the SDC expressing reservations and Mr. Milutinovic --

13 as we will see of a review of many of the exhibits coming out in support

14 of the position of Mr. Milutinovic [sic], who we allege was the leader of

15 the joint criminal enterprise.

16 In P1000, that is the minutes of the 8th Session, we see

17 Mr. Milutinovic being present --

18 JUDGE BONOMY: I take it your last reference is actually to

19 Mr. Milosevic?

20 MR. STAMP: Mr. Milosevic. Thank you very much, Your Honour,

21 that is correct.

22 JUDGE BONOMY: That's the reference at line 13.

23 MR. STAMP: He was a participant in the elevation of

24 Mr. Pavkovic, that's P1000, at page 10; he was present when the SDC

25 adopted the proposal of the -- of Mr. -- of General Perisic on personnel

1 issues, which included the promotion of Vladimir Lazarevic to

2 major-general, and that is P1574, the minutes of the 5th Session. So it

3 is submitted, respectfully, Your Honour, that he participated in

4 furthering the joint criminal enterprise by the exercise of his powers

5 within the SDC in supporting Mr. Milosevic in the placement of other

6 members of the JCE, some of whom are charged here, to positions where

7 they could effect and carry out the plan, the purposes, of the JCE.

8 And if I may digress a little bit from the JCE, he exercises

9 powers also under the law of ranks to further the JCE in the way in which

10 under that order he could promote or appoint police personnel. By virtue

11 of Article 6 of the law of ranks of the MUP, which is P1015, the

12 president of Serbia was in power to appoint and promote generals and

13 authorise officials to posts up to the rank of general is required as per

14 the job specification. This gave the president additional influence over

15 the police service in Serbia. He exercised his power to promote

16 General Lukic to the rank of lieutenant-general on the 12th or at least

17 in May 1999.

18 My learned friend, Mr. O'Sullivan, had submitted that there's no

19 such evidence. Your Honours, a review of his interview with the OTP at

20 P -- that is P604, at page 186, shows that he admitted that he signed the

21 decree promoting General Lukic on the occasion of security day, which

22 would be the 12th or 13th of May, 1999.

23 JUDGE CHOWHAN: Sorry, but that document has not been placed on

24 the file.

25 MR. STAMP: The --

1 JUDGE CHOWHAN: Because counsel was very categorical that he was

2 not promoted, and I was also looking forward to an answer on that, but

3 that he was promoted or was he not? And what is your position on that,

4 please?

5 MR. STAMP: At P00604 -- well, I believe - and I will check this

6 and tell you in the break. I believe in the Defence pre-trial brief,

7 Mr. Lukic did accept that he was promoted. As to whether he was promoted

8 by Mr. Milutinovic, that is Mr. Milutinovic signing the decree, that is

9 in the interview given to the OTP by Mr. Milosevic, that is admitted, and

10 that is P604 and that is at page 186. And in a moment, I'll probably be

11 able to tell you when it was admitted into evidence. On the 10th of

12 October, 2006.

13 We also ask ourselves the question or I submit respectful that

14 one would ask our self a question, what does a president of a country do

15 with the powers he would have in SDC when there are allegations of these

16 grave crimes of persecution against an element of the population on a

17 wide-scale basis over a long period of time.

18 It is said that there is no evidence that the SDC, whatever his

19 powers in the SDC was, but there is no evidence that the SDC convened

20 after 23rd or 24th of March, 1999. However, Your Honours, if one views

21 the rules of the SDC, and that is Exhibit P2622, that's the rules of the

22 SDC, that is dated the 23rd of July, 1992, and P1738, that is the amended

23 rules, the rules that were amended on the 23rd of March, 1999, those

24 amended rules provided that the president of Yugoslavia, of the FRY,

25 shall - shall - convene meetings at the proposal of members. So a

1 president disturbed, and not a participant of the joint criminal

2 enterprise, hearing these grave allegations in receipt of an ICTY

3 indictment naming him and identifying specific crimes had the power to

4 convene a meeting of the SDC. He did not.

5 I think my learned friend Mr. O'Sullivan submitted that the

6 members of the SDC, apart from the president, did not have the power to

7 propose agenda items, as if the president of a republic would not say,

8 Well, you know, they say that hundreds of people are -- hundreds of

9 thousands of people have been forcibly expelled, we need to discuss that

10 gentlemen, the president of the republic would not do so.

11 It is the submission of the Prosecution the rules of SDC gave the

12 president a power - and these are called common sense - a power to put on

13 the agenda issues that he thought were of importance, and I refer to

14 P1738, the relevant rules of the SDC, and that is paragraph 3 -- sorry,

15 paragraph 5. Paragraph 3 provided the president shall convene the SDC,

16 that's the president of the FRY, if any member demands it or requests it.

17 And paragraph 5 enables a member of the SDC to put on the agenda a matter

18 that he considers important for the SDC to determine.

19 It is submitted that a member of the SDC who was not a party to

20 the joint criminal enterprise could have exercised these powers in a

21 manner that would impede the implementation of the joint criminal

22 enterprise. Instead, the evidence is that Mr. Milutinovic joined

23 Mr. Milosevic at every step. By failing to make use of his powers as an

24 SD member -- SDC member as outlined above, he contributed as a

25 participate to the joint criminal enterprise and alternatively instigated

1 and aided and abetted the commission of the crimes.

2 In addition, Article 4 of the relevant rules of the SDC, that's

3 the rules that govern the period after the 23rd of March, 1999, provided

4 that the decisions must be adopted by consensus. So he could have

5 significantly impacted on what the army was doing on the ground in Kosovo

6 in any SDC meeting by standing up and discharging his responsibility,

7 sworn responsibility, as the president of Serbia.

8 And as a member of the SDC, Mr. Milutinovic was kept informed in

9 addition to the note that I referred to earlier in which they agreed that

10 they must receive reports in respect to certain things, Article 2 of the

11 rules shows that Mr. Milutinovic must have received reports from the VJ

12 and other state organs involved in the defence of the -- the FRY. He was

13 present when Mr. Sainovic reported to the SDC on the cooperation between

14 the VJ and the MUP, and there was a discussion of other security-related

15 issues and that is P1000.

16 And if you review P1000 carefully, you will see that some of the

17 statements that Mr. Milutinovic made, for example, when he discussed

18 allegations of undisciplined and unconstitutional conduct of VJ soldiers

19 and said that these allegations were inflated, demonstrates that he not

20 only had material knowledge but he was aware of the allegations that were

21 being made, and as an SD member -- as an SDC member dismissed them.

22 I would about now seek to move on to another topic, so I don't

23 know if it's a convenient time.

24 JUDGE BONOMY: Very well. We shall break now and resume in an

25 hour at quarter to 2.00.

1 --- Luncheon recess taken at 12.45 p.m.

2 --- Upon resuming at 1.46 p.m.

3 JUDGE BONOMY: Please continue, Mr. Stamp.

4 MR. STAMP: Thank you, Mr. President.

5 If I could try to move along more quickly and turn to the

6 challenge raised in respect to the existence of a Supreme Command and

7 Mr. Milutinovic's role therein. To the extent that the existence of this

8 body during the relevant period has been challenged, I refer the court to

9 Exhibit 1488, an order dated the 18th of April 1999, signed by

10 General Ojdanic as chief of staff of the Supreme Command, and

11 Exhibit 1459, a report signed by General Pavkovic addressed to the

12 Supreme Command staff and an order in response to it by the

13 Supreme Command, which is P1495 and dated the same date, the 24th of May

14 1999, signed by General Ojdanic as commander of the Supreme Command.

15 And General Vasiljevic also testified about the chain of command

16 during operations; that is, and he spoke at pages 8658-8663 of the

17 transcript of 18th of January 2007, of the reporting system that was in

18 operation that went right up to the Supreme Command.

19 The other reference I leave to the good judgement of the Chamber

20 to make whatever use it will, or to give whatever weight it is, is P949,

21 which I think was referred to by my colleague Mr. Hannis, which is the

22 subsequent interview of Mr. Pavkovic -- General Pavkovic, I'm so sorry,

23 in which he states that Mr. Milutinovic was a member of the

24 Supreme Command.

25 And Radomir Tanic in his statement, which is -- which was

1 admitted in evidence at paragraph 109, said that when the war with NATO

2 began, Mr. Milosevic established the Supreme Command of which Milutinovic

3 was one of its members. I don't --

4 MR. O'SULLIVAN: Your Honour, I must object. Paragraph 109 of

5 that statement is not in evidence pursuant to your order. You admitted

6 paragraphs 1 to 45.

7 JUDGE BONOMY: Mr. Stamp?

8 MR. STAMP: Your Honours, I will ensure that it is in evidence

9 and return to that. My information is that it is.

10 JUDGE BONOMY: Yes. The Chamber will be able to deal with this

11 in the light of the comment made by Mr. O'Sullivan.

12 MR. STAMP: I wanted to say in respect to Mr. Tanic that

13 notwithstanding learned counsel's submissions that Tanic is not to be

14 believed, I'd ask Your Honour to refer back to the submissions of

15 Mr. Hannis in respect to the standards here at this 98 bis hearing which

16 do not involve an assessment of the credibility of the witnesses in a

17 manner that my friend suggested the Court should -- should undertake, and

18 that the evidence of Mr. Tanic is not so inherently incredible that it

19 has to be discarded at this stage, as was submitted.

20 The prosecution submits that Mr. Milutinovic attended many

21 international meetings and conferences, many times along or in the

22 presence of Mr. Milosevic. And in doing so, he gave legitimacy to some

23 of these meetings and conferences by attending as the president of

24 Serbia, and in some of them - particularly the last few days of

25 Rambouillet and Paris, which I'll get to later - he acted in a manner

1 which furthered the joint criminal enterprise. I think it is in respect

2 to this position of the prosecution that learned counsel sought to

3 suggest and argue that Mr. Milutinovic had no or a limited role in

4 foreign affairs as a president of the Republic of Serbia.

5 Your Honours, I refer back to Exhibit P1021, which is the

6 constitution of the Republic of Serbia, and article 3 thereof provides

7 that all -- that the president of Serbia shall conduct affairs in the

8 sphere of relations between the Republic of Serbia and other states and

9 international organisations in accordance with law.

10 So there is some legal basis for the accused Mr. Milutinovic to

11 undertake engagements in international affairs. However, if we look at

12 the actual situation, the -- the fact of the situation, it is clear that

13 Mr. Milutinovic attended many of these meetings and was present at many

14 of these meetings as an ally and as a participant with Mr. Milosevic in

15 the JCE. There is evidence of Mr. -- Ambassador Vollebaek in a statement

16 at P2634, in which he said that Mr. Milutinovic's presence gave

17 legitimacy to those meetings at -- as president of Serbia and in his

18 testimony here, he said that Mr. Milutinovic would be present at meetings

19 and he would normally, and I quote: "Normally, as far as I recall

20 anyway, sit next to Mr. Milosevic and be very supportive of Mr. Milosevic

21 and not very supportive of [inaudible]."

22 And I'm quickly going to refer to many of these meetings without

23 going into detail into them, but I'd ask the Court to look into the

24 records of these meetings, look at the topics discussed, the persons

25 present, and assess whether he was attending these meetings as a symbol

1 of national unity, as was submitted by the defence, or whether he

2 attended these meetings as a central figure, as a senior leader, in

3 respect to the affairs of Kosovo and the engagements of forces of the FRY

4 and Serbia.

5 Mr. Tanic in his evidence stated at page 6371 of the transcript

6 that the private chain of command of Mr. Milutinovic included

7 Milomir Minic and Nikola Sainovic for internal affairs and

8 Milan Milutinovic for foreign relations.

9 Mr. Milutinovic was present in the October 1998 negotiation that

10 led to the FRY-Serbia-VJ -- sorry that led the FRY and Serbia -- I

11 withdraw that. This is clearly incorrect.

12 In any case, he attended the October 1998 meetings and he led the

13 delegations of the FRY and Serbia, the Serbian MUP, he led the MUP

14 delegations during technical negotiations with NATO representatives and

15 this is the evidence of Mr. Naumann. Mr. Naumann also spoke of the

16 meeting of the 15th of October 1998 with General Clark, Mr. Solana, in

17 which Mr. Milosevic was warned about the use of excessive force.

18 Mr. Milutinovic was there. He spoke about the meeting of the 25th -- 24

19 and 25th of October 1998 with Mr. Milutinovic and Sainovic present, in

20 which Clark issued warnings in respect of the conduct of the forces of

21 FRY. In that meeting, Mr. Milosevic denies use of disproportionate

22 force.

23 This was a meeting, it should be noted and that I think was

24 discussed earlier by my friend -- by my colleague, Mr. Hannis, in a

25 general sense, in which Mr. Milosevic made derogatory remarks about the

1 Kosovo Albanian people and stated that they should be killed, and it was

2 in P2512, the transcript of Mr. Naumann from the Milosevic case. In

3 those circumstances, Mr. Milutinovic voiced no opposition, expressed no

4 dissent, to that sort of a -- and according to Mike Phillips,

5 Mr. Milutinovic was present in meetings with Mr. Milosevic and Mr. Walker

6 in October and November 1998.

7 There is evidence of a meeting of the 19th of January 1999 of the

8 Racak incident when Mr. Naumann, Mr. Clark -- General Clark met with

9 Mr. Milosevic. The parties from FRY included Mr. Milosevic,

10 Mr. Milutinovic, Mr. Sainovic, Mr. Jovanovic, Mr. Bugatic [phoen],

11 Klaus Naumann and General Clark. And this is discussed in the Milosevic

12 transcript which is in evidence and that the transcript of the 13th of

13 June 2002, 6998, is the page number and also in paragraph 30 of

14 Mr. Naumann's statement which is P2512.

15 In none of these meetings could it be said, it is submitted, that

16 he attended as a symbol of national unity. It is the Prosecution's

17 submission that he attended as a senior political leader of the FRY. A

18 participant in the discussions and the decision-making processes of the

19 FRY in a crucial capacity.

20 Turning to Rambouillet, criticisms have been passed about the

21 credibility of Ambassador Petritsch by counsel for Mr. Milutinovic.

22 Again, I will not address credibility arguments here but just to submit

23 that there is nothing in the evidence of Ambassador Petritsch that

24 undermines it to such a degree that it will make it inherently

25 unbelievable or so inherently unbelievable that it must be discarded at

1 this stage.

2 In fact, I noted that Mr. Fila expressed a different view about

3 the credibility of Mr. -- of Ambassador Petritsch, which is probably why

4 we should not be debating that at this stage, because Mr. Fila said that

5 persons such as Ambassador Petritsch could not say things that are not

6 accurate. There you have it.

7 Ambassador Petritsch said that Mr. Milutinovic told him that if

8 Serbia was bombed, there would be massacres, and by that in the context

9 it meant massacres of the Kosovar Albanians. That is evidence of intent,

10 knowledge of the JCE.

11 Learned counsel Mr. O'Sullivan suggested that -- quite correctly

12 from the evidence, that Mr. -- that Ambassador Petritsch could not of

13 himself after cross-examination recall it actually being said to him but

14 relied upon the record, upon the diplomatic dispatch, which is Exhibit --

15 I'll get to the exhibit number shortly, but my friend Mr. O'Sullivan also

16 suggested quite incorrectly, it is respectfully submitted, that

17 Ambassador Petritsch saw the diplomatic dispatch long after the incident

18 and just shortly before he testified here.

19 On the contrary, Your Honours, Ambassador Petritsch first saw

20 that diplomatic dispatch where he checked it just a few hours after the

21 statement was made to him. In other words, that dispatch is a

22 contemporaneous record of the events that it discusses or that it

23 records.

24 He was asked by presiding Judge Bonomy if it was a possibility

25 that there was a mistake in the dispatch, and his response was, "Very,

1 very unlikely, because you would not just write -- put something into

2 writing about the president, the acting president or the president of a

3 republic, part of then Yugoslavia if it were not said particularly in

4 such a dispatch. It's an internal dispatch. Again, I must reiterate,

5 and of course we, as diplomats, are bound to say and write the truth and

6 nothing but the truth. That is clearly one of the main principles."

7 And Ambassador Petritsch also told you about the system of

8 checking the accuracy of these dispatches before they were transmitted.

9 We see that there has been some evidence about something similar

10 being said by Mr. Stambuk and Ambassador Petritsch could not remember

11 whether or not he heard it from two persons or from one person. But if

12 one reflects on the evidence in this case, it is clear that more than one

13 person at some point in time during the development of the joint criminal

14 enterprise expressed in moments of high tension or anxiety, expressed a

15 knowledge that something was going to happen in the spring of 1999.

16 So that is evidence before you, that the ambassador could not

17 remember whether there were two statements or one statement, but he did

18 remember or he could testify that he could rely on that record that he

19 checked.

20 Again, his credibility was challenged in respect to his evidence

21 about the transparency of the process at Rambouillet, in that, firstly,

22 it is the position of the defence that the implementation chapters were

23 tabled just hours before the Serbian delegation had been forced to sign.

24 It is the evidence of Ambassador Petritsch, and this is a matter

25 to be determined at the end of the case - we're not now dealing with

1 proof beyond reasonable doubt - that those tables were made known to the

2 Serb delegation or the Serbian delegation from the 19th of March. And

3 that's at transcript 10841 and 101925 -- well, and I think this is

4 transcript 10925 as well.

5 The other complaint about Ambassador Petritsch, which is again an

6 issue of credibility, is as regards side letters. It is said that

7 Ambassador Petritsch should not be -- or his evidence should not be

8 received at this stage because the talks were not transparent, because

9 there were side letters going around between various parties.

10 This doesn't affect his credibility, and although I'm not

11 addressing the credibility issue, I'll just say this. As regards the

12 side letters, his testimony was that these are not unusual in bilateral

13 or multilateral negotiations of this nature. What he knows is that he

14 had nothing to do with any side deals or side letters. He had nothing to

15 do with the Kosovar letter addressed to -- to Secretary of State

16 Albright, and he did not participate in the event depicted in the video

17 sequence which was shown by the defence in which there were letters being

18 prepared and one party, the Kosovar delegation, was not allowed to see

19 those letters. And that, as far as he was concerned, he and the

20 representatives of the Contact Group conducted themselves fairly and

21 transparently in respect of both parties, and they had no control over

22 what other persons from other states might have tried to do, in terms of

23 influencing proceedings.

24 The significant thing about Mr. -- or Ambassador Petritsch's

25 evidence is that whatever those implemental -- those implementation

1 provisions were, they were open for discussion. The peace could still

2 have been salvaged. There was no need for outright rejection of further

3 talks. That is a gravamen, it is submitted, of his testimony.

4 And although Mr. Milutinovic, at the beginning, was not formally

5 a member of the Serbian delegation, when he attended, he played an

6 important role at Rambouillet and later at Paris - particularly at

7 Paris - where he led the negotiation on behalf of Serbia and where he led

8 the rejection -- I beg your pardon, on behalf of the FRY and where he led

9 the rejection of any agreement.

10 According to Ambassador Petritsch, and also we see from the

11 evidence of Veton Surroi and Ibrahim Rugova, deceased, he undermined and

12 directly obstructed these negotiations and was clearly acting on the

13 directions of Mr. Milosevic.

14 And later on, on the 23rd of March, 1999, he addressed the

15 Serbian Assembly and persuaded them, particularly the majority party,

16 just his party in the assembly, to -- to reject the Paris accord.

17 It is the Prosecution's submission that in so doing, he furthered

18 the objective of the joint criminal enterprise because, as my colleague

19 Mr. Hannis has described, the plan, as expressed from before, was to

20 bring a solution to the Kosovo problem by the spring, by March, of 1999.

21 And at the time, when these -- the peace proposals were rejected, that

22 was the time when the forces of the FRY and Serbia was ready to go on the

23 offensive to effect the plan.

24 I noted that Mr. Fila, in his address, suggested that

25 Mr. Sainovic was removed from his position because he -- or dismissed, I

1 think was the expression, because he disagreed with the programme. That

2 is not the evidence, Your Honour. The evidence is simply that by that

3 time, by the time of the Paris talks, Mr. Milutinovic took over and led

4 the rejection of the peace proposals.

5 I'd like to do a quick review of Mr. Milutinovic's de facto

6 powers. We have been looking at powers which are mostly supported by

7 law. As I submitted earlier, he was a central figure in the proceedings

8 relevant to this indictment, and by his participation at important

9 meetings of the military and security apparatus responsible for what was

10 going on in Kosovo and the reports that he regularly received -- that he

11 would regularly receive from senior personnel involved in affairs of

12 Kosovo, he could not have been a participant as a national symbol as

13 suggested, a symbol of unity. He could not have been there as a

14 guarantor, when you look at these meetings. He was there as a party, in

15 the Prosecution's submission, to the planning and the ordering of the

16 force of the FRY and Serbia, to conduct the operations which are the

17 subject of these indictment -- of this indictment in Kosovo.

18 Again, it is a matter for Your Honours to give this whatever

19 weight you think it's worth, but Exhibit P605 is the interview of

20 Mr. Sainovic, and he said that in the first half of 1998, he was sent to

21 Pristina on several occasions and would report back and consult with

22 Mr. Milutinovic. That's at page 9.

23 Colonel Pesic in his statement, P2502, attended a meeting in 1998

24 in which Mr. Milutinovic was present with Mr. Lukic, Mr. Pavkovic. He

25 concluded that Mr. Milutinovic was present as a guest of the Ministry of

1 Internal Affairs, and the issues they discussed was related to the

2 political and security situation in Kosovo.

3 K64, in his statement at P2805, states or stated that at the MUP

4 staff for Kosovo and Metohija meeting held on the 5th of November 1998,

5 Mr. Milutinovic stated that the Joint Command for Kosovo would remain in

6 the same composition as when it was set up. He -- it was clear that

7 Mr. Milutinovic supported the existence of the Joint Command and

8 advocated its continuing function.

9 So Mr. Milutinovic de facto, in his capacity as president, as

10 well directly lent support to the authority of the Joint Command and

11 their activities and its legitimacy.

12 Again, K64 said that Mr. Milutinovic also attended another MUP

13 staff meeting on the 23rd of September 1998, in which in his address he

14 told them that terrorism in Kosovo was defeated and only minor terrorist

15 groups remained. And Mr. Sainovic, in his interview at P605 also

16 discusses the -- well, here he discusses the conduct of Mr. Milutinovic.

17 I will not go into that, this one. Similarly, Mr. Lukic in his interview

18 at P948 also mentions the presence of Mr. Milutinovic at MUP meetings,

19 the MUP for Kosovo meetings.

20 MR. O'SULLIVAN: Your Honour, we objected to this, and you have

21 given directions to the prosecution that perhaps they shouldn't be

22 referring to the statements of the co-accused.

23 JUDGE BONOMY: No, we haven't given them directions,

24 Mr. O'Sullivan, we've have expressed, or at least I have expressed, a

25 preliminary view about what the law might be on this, and we'll take

1 account of the arguments when we decide whether any of this is admissible

2 against your client. And you will have the opportunity, if you wish, to

3 respond to it as you asked for earlier.

4 MR. STAMP: I just leave it at that. The Tribunal -- the Chamber

5 may give it whatever weight you think it.

6 There was a meeting on 29nd of November 1998 of the operational

7 interdepartment staff for the suppression of terrorism in Kosovo, and the

8 minutes of that meeting are P2166. Present at the meeting were

9 Slobodan Milosevic, Mr. Milutinovic, Mr. Lukic, General Pavkovic and

10 Mr. Sainovic.

11 This document gives significant insight into the level of detail

12 of the -- of reporting that these persons, including Mr. Milutinovic,

13 would receive. Indeed, General Lukic, who was present at that meeting,

14 gave a detailed report in the compliance of the MUP with the

15 Holbrooke-Milosevic agreement.

16 In his interview, that is the interview of Mr. Milutinovic, P604,

17 he said that during the NATO campaign, he had maybe two or three meetings

18 with Mr. Milosevic and the chief of the General Staff together. Your

19 Honours will no doubt have a look at what he says. This is at page 68 to

20 69 of his interview, because he seems to at first deny meeting both of

21 them together, but that is a matter for you.

22 He says, I should add, in his interview that these meetings, they

23 are told the consequences of the bombing. He also said in his interview

24 that there were also frequently half-hour meetings reviewing the general

25 situation with Mr. Milosevic, and the general leadership held in

1 Velesboro [phoen] Palace. It's at page 69 and 74. That the minister of

2 defence was present at these meetings, and that he was informed at these

3 meetings about what was happening in Kosovo, although he adds at page 70,

4 "not in detail."

5 At page 76, he explains that these meetings were held for

6 historical reasons because during the war, previous war, there were

7 circumstances where the leadership appeared to have -- and that is

8 World War II, 1941 to 1944, appeared to have left the country at some

9 point in time.

10 Much of what he says in the interview about these meetings are a

11 matter for interpretation, but what is clear is that he was meeting with

12 Mr. Milosevic during the bombing, and he was meeting with Mr. Milosevic

13 in the presence of the senior figures, the leaders, of the operation in

14 Kosovo, although in the interviews, to be complete, he says that he met

15 them for a variety of reasons.

16 I move on very quickly to the evidence in respect to the passing

17 of the decree, that's P993, the decree in respect to identification

18 cards. The answer to that, which it is submitted again would probably be

19 worthy of more consideration if we were discussing proof beyond a

20 reasonable doubt at later stage, was that this law was repealed after the

21 war. Well, it was repealed after circumstances had changed

22 significantly, after it had had its effect and could have had no further

23 effect in disabling, as it clearly did, or discouraging expelled Kosovo

24 Albanians from returning to Kosovo.

25 Quickly to submit, Your Honour, that it is clear on examination

1 of these meetings that his presence and participation in the

2 circumstances of what is happening in Kosovo, that he knew about, and

3 that's what I would come to now is his knowledge, indicates that he is a

4 central figure who participated in the planning and the directing at a

5 high level, a political level, of these operations, as my colleague

6 Mr. Hannis indicated that operations on the ground, it would be other

7 members of the JCE who would have that role of making direct orders to

8 the force on the ground.

9 Clearly, Mr. Milutinovic not only had inquiry notice, inquiry

10 notice of the various complaints he would have received from the

11 international media, from the United Nations resolutions, but he would

12 have specific direct notice from the ICTY indictment of the specific

13 offences.

14 There is also the evidence of Mr. Rugova, the deceased leader,

15 former leader of the Kosovo Albanian people, who said in mid-April

16 1999 -- he complained to him about the expulsions of Kosovo Albanians

17 from Kosovo; that is the leader, the recognised leader of the Kosovar

18 Albanian people making a complaint, something in the nature of an

19 official complaint to the president about the expulsion of the Albanian

20 people. He said that Serb police and military forces, paramilitaries and

21 other volunteer forces were driving the Albanians out. This is a report,

22 a complaint, that has great significance and carries with it serious

23 ramifications in the present circumstances.

24 We have the evidence of Fred Abrahams about letters he sent to

25 various ministers in the Serbian government, P540 to P546, letters he

1 sent to various organs of the Serb government. He also said in his

2 testimony that the Human Rights Watch sent reports to the various organs

3 and specifically to the presidency of Serbia, and this is at page 76 to

4 78 of the transcript. I think either Mr. Hannis or myself has already

5 referred to the reports made by Mr. Naumann and General Clark in October

6 1998.

7 There is P02827, an internal memo from the Deputy Minister of

8 Information to the office of Mr. Milutinovic, dated the 1st of October

9 1998, in which he describes media reports regarding criminal acts being

10 committed by MUP personnel in Gornja Obrinja, Glogovac as propaganda and

11 suggests possible response.

12 Now, although it is described, these reports are described as

13 propaganda, it shows that Mr. Milutinovic received reports analysing what

14 the international media was saying about the use of excessive force by

15 the police and the army, the FRY. Dusan -- Dusan Loncar, at P2521,

16 states that there were incidents around Podujevo, Racak, Stimlje,

17 et cetera, where he had to organise meetings. He attended these meetings

18 with Milan Kwarter [phoen], Colonel Mijatovic, Velimir Slana. These

19 meetings were recorded by Velimir Slana, who made five copies of these

20 meetings and distributed them to -- to, and their addresses included

21 Nikola Sainovic and Mr. Milutinovic.

22 P508 is one such report, a report by Velimir Slana in which he

23 states that DZ had brought to the attention of the Ministry of Foreign

24 Affairs office in Pristina that FRY and Serb forces were acting in a

25 disproportionate way. This report was sent to Slobodan Milosevic,

1 Milan Milutinovic and Nikola Sainovic, among other persons.

2 And P399 is a letter from the prosecutor, the then prosecutor of

3 this Tribunal, Louise Arbour, dated the 26th of March 1999, to

4 Mr. Milutinovic expressing her grave concerns about serious the

5 violations of international humanitarian law in Kosovo.

6 Mr. Adnan Merovci also in his evidence testified about personal

7 reporting to Mr. Milutinovic about offences committed against the Kosovar

8 Albanian people. That has a -- that's a transcript 8412. And he was

9 also present when Mr. Rugova made the reports that I've already

10 discussed.

11 There are -- and I just give exhibit numbers, there are a

12 significant amount of other documents detailing Mr. Milutinovic's receipt

13 of notice or reports or information about what was happening, including

14 P1481, P2828, P2842, P2843, P2844, and these documents confirm that there

15 was a regular system where the senior political leaders would be informed

16 about what was happening in Kosovo.

17 So it is submitted that Mr. -- the evidence is, there is serious

18 evidence on which this tribunal could act that Mr. Milutinovic acted with

19 the necessary intent for all the offences charged. That he had the

20 necessary knowledge in respect of all the offences charged. And that by

21 his actions and his participation -- in particular his participation

22 along with Mr. Milosevic in the various meetings I've discussed, and his

23 omissions, he participated in the commission of the crimes.

24 I will discuss in a general sense issues in respect to 7(3)

25 liability for high government officials, especially where de facto

1 responsibility is concerned and I, with the leave of the court, would do

2 so after I have discussed the evidence with respect to Mr. Sainovic who

3 is another high government official, and just do it in a general sense in

4 respect to both.

5 I had referred earlier to the Simic decision. This is a very

6 important decision because Simic, unlike Mr. Milutinovic, did not have a

7 constitutional role and power but he was held to have a legal power under

8 international humanitarian law as a high government official to do

9 anything he could, to use his political influence in any way, to stop

10 what were massive crimes that were being committed, the crimes in Kosovo

11 were greater, not that I minimise the crimes in Bosanski Samac.

12 And it is important to point out, in addition to what I've said

13 about that case, that ultimately, the Trial Chamber found that any high

14 political leader in that position, who felt that he could not or would

15 not do anything, for whatever reason, ought not to have occupied the

16 position and not done anything but ought to have resigned.

17 Ultimately, Mr. Simic's failure to resign in the circumstances of

18 what was happening in that municipality was also an indication of his

19 intent and his participation.

20 Your Honours, I wish to move on to evidence in respect to

21 Mr. Sainovic and the submissions made by my learned friend, Mr. Fila, in

22 respect of Mr. Sainovic. I'll do it this way, with your leave. I'll

23 proceed to deal with the specifics of his submission first and then,

24 having regard to the time how I'm progressing, I will deal with my

25 general submission about the evidence in respect to Mr. Sainovic. I'm

1 not sure if I need to. It's some tribunals require that you respond to

2 the specific submissions that are made in the no-case submission, and I

3 intend to start by doing that, but I will, depending on the time, come

4 back to some other matters that, about the evidence of the prosecution,

5 that perhaps Mr. Sainovic did not mention.

6 JUDGE BONOMY: The second part of what you propose to do is very

7 important. It may be that all that's said by Mr. Fila is wrong but so

8 what? You have to point to positively to the evidence which creates a

9 sufficiency for your case.

10 MR. STAMP: Indeed, Your Honour.

11 JUDGE BONOMY: Please continue, Mr. Stamp.

12 MR. STAMP: Thank you, Your Honour.

13 On occasion I might have mentioned K64. I'm reminded that that

14 is a witness, Ljubinko Cvetic, that the protective measures had been

15 withdrawn just before he testified.

16 JUDGE BONOMY: Thank you.

17 MR. STAMP: The Prosecution submits that Nikola Sainovic, like

18 Milan Milutinovic, is liable within Article 7(1) and Article 7(3) for the

19 campaign to modify the ethnic balance in Kosovo. He participated in the

20 JCE as a civilian superior, as Mr. Milosevic's facilitator and

21 implementer in Kosovo and shared the intent of the joint criminal

22 enterprise, to ethnically cleanse Kosovo in order to ensure continued

23 Serbian control over the province.

24 Further, as a civilian superior, in a position of de facto and de

25 jure authority, Mr. Sainovic failed to exercise his power and breached

1 his duty to prevent subordinates from committing the alleged offences,

2 and failed to exercise whatever powers he had to prevent -- sorry, to

3 punish subordinated -- subordinates after the fact.

4 Looking first at the submissions by learned counsel, Mr. Fila, a

5 number of issues were raised. Again it is my submission respectfully,

6 with respect to Mr. Fila, that most if not all of his arguments were

7 arguments that went to the issue of proof beyond a reasonable doubt,

8 which is not the applicable standard here. And I will refrain from

9 entering into a debate weighing the value of the evidence and just

10 proceed by referring Your Honours to the relevant evidence in respect to

11 the areas that were addressed by Mr. Fila and the areas of the

12 Prosecution's case that the evidence supports.

13 Mr. Sainovic's -- sorry, Mr. Fila's submissions can be summarised

14 under eight general heads and, of course, there are other things which

15 I'll come to later but the submissions of Mr. Fila fall under these eight

16 heads, it is submitted:

17 One, Mr. Sainovic -- or the evidence disclosed that Mr. Sainovic

18 was a middleman who conveyed positions of high ranking officials. To

19 that, I say that is part of the allegation in the indictment, but we do

20 not allege that that was his only role.

21 The second head is that there is no evidence that Mr. Sainovic

22 was Mr. Milosevic's representative in Kosovo.

23 Thirdly, and this was probably the main thrust of Mr. Sainovic's

24 submission, is that there's no evidence that in 1999, Mr. Sainovic was

25 head of the Joint Command, if it existed, because Mr. Sainovic also

1 seemed to cast doubt on it or seemed to -- to suggest or argue that there

2 is no evidence that the Joint Command existed. So he is saying that

3 there was no evidence that in 1999, Mr. Sainovic was head of a

4 Joint Command and certainly not after the 23rd of March.

5 He also said that the documents referring to the Joint Command

6 are from the VJ and refer solely to army units. If those documents,

7 according to Mr. Fila, if those documents are authentic, he said the

8 evidence was that the MUP of Serbia was fully under the jurisdiction of

9 Serbia, that's head 5.

10 Head 6, that the Prosecution had failed to prove the existence of

11 a vertical chain of command involving Sainovic.

12 Head 7, Sainovic could not have known about the crimes.

13 8, that many persons, international figures, had complimentary

14 things or expressed approval about the conduct of Mr. Sainovic.

15 In dealing with this, I would like to refer to the evidence of

16 Mr. Vasiljevic in a little bit of detail because I think if I read three

17 paragraphs from Mr. Vasiljevic's testimony, all but the last of these

18 heads of submissions of Mr. Fila would be rebutted. Certainly, at this

19 stage of the proceedings. Because it is submitted that the evidence of

20 Mr. -- of General Vasiljevic is evidence on which this Tribunal can act,

21 on which this Chamber can act, more so that in respect to much of what

22 I'm about to read, he was never seriously challenged in cross-examination

23 about it.

24 In his statement, which was received in evidence, and I'll get

25 the exhibit number shortly, he said he attended a meeting of the

1 Joint Command of the 1st or the 2nd of June 1999. Now, this was way into

2 the -- this is way after the 23rd or the 25th of May.

3 It was attended by VJ and MUP personnel; the head of the Kosovo

4 government; by the temporary Executive Council; the head of the security

5 services for the Pristina Corps; Colonel Stojanovic; Zoran Andjelkovic,

6 who was head of the TC; General Djordjevic of the MUP; General Stevanovic

7 of the MUP; General Lukic of the MUP; General Pavkovic;

8 General Lazarevic; et cetera.

9 It was in a building with an underground area, and it was in a

10 large room which he, as a general, former general of the VJ, with his

11 experience assessed to be some sort of Pristina Corps headquarters,

12 possibly the forward command post of the 3rd Army, but it was certainly a

13 high level operational centre.

14 Before I proceed, this is Exhibit 2594, and I am looking at

15 paragraph 78 to 82.

16 He said that all the persons named except Sainovic --

17 Mr. Sainovic and Mr. Andjelkovic were there. When Mr. Sainovic and

18 Mr. Andjelkovic entered, everyone rose, small talk stopped and they got

19 down to business. Mr. Sainovic sat at the head of the table.

20 Mr. Sainovic was treated deferentially by the other members throughout.

21 General Vasiljevic said Mr. Sainovic presided over this meeting.

22 This meeting of the leading members of the MUP and the VJ in Kosovo. And

23 he said, in these circumstances, he, General Vasiljevic, could only

24 conclude that Sainovic must have been appointed to this position by

25 Mr. Milutinovic -- sorry, by Mr. Milosevic, because it was a position of

1 such high power and control, and that he would have reported to

2 Mr. Milosevic.

3 The meeting began with a briefing by General Lukic, and if you

4 look at the briefing what he said about the briefing, the briefing

5 involved detail of activities of an underground by the MUP.

6 After this, General Lazarevic gave his report and used a map

7 which showed distribution of forces, et cetera. Again, if you look at

8 this, you can assess the level of detail that these leading members of

9 the force of the FRY and Serbia were addressing and reporting to

10 Mr. Sainovic.

11 Following that, General Pavkovic spoke. After this, Sainovic

12 spoke and said, and I'm quoting now: "Okay. Do as you have planned."

13 Then he said the remaining terrorist groups were to be destroyed in the

14 next three to four days, and that the organisation of activities in the

15 field and cooperation between the MUP and the army is to be improved.

16 According to General Vasiljevic, nobody stood at attention to

17 receive that as an order but Sainovic's word was last, and the meeting

18 disbanded. It was, in General Vasiljevic's estimation, a meeting which

19 lasted 20 minutes, dealt with details of events that occurred in the last

20 24 hours, including combat operations, and therefore according to

21 General Vasiljevic would have been something in the nature of a daily or

22 certainly a meeting that was called frequently because of the atmosphere

23 at the meeting, the topics and the time it lasted.

24 In this evidence, there is material, it is respectfully

25 submitted, that rebuts and disposes of the submissions of Mr. Sainovic

1 that I just outlined under those eight heads, except for the last one,

2 that people spoke about Mr. Sainovic's conduct with approval.

3 Where there is other evidence on these several matters,

4 Mr. Sainovic submitted that the evidence was that -- Mr. Fila submitted

5 that the evidence was that Mr. Sainovic was a middle man who conveyed

6 positions of high-ranking officials. As I indicated, this is neither

7 unusual or inconsistent. This is part of the Prosecution's case that he

8 conveyed orders, et cetera, from Mr. Milosevic. The joint criminal

9 enterprise involved various parties who played their own part led by

10 Mr. Milosevic, and some persons had more than one role.

11 And Mr. Fila's position on this may well have been a

12 misunderstanding of the evidence that he cited, that is of Mr. Merovci.

13 That evidence is at page 8535 of the transcript as a matter for this

14 Court. It seems that Mr. Merovci is saying that on some occasions, in

15 his opinion, Mr. Sainovic was a person who came frequently and announced

16 meetings. In a way, he could have been a person who acted in a capacity

17 as an envoy, who conveyed opinions of higher ranks, but it was not -- but

18 nothing from his testimony goes to suggest that he was saying that this

19 was exclusively Mr. Sainovic's role.

20 There is, as far as the second head is concerned, significant

21 evidence that Mr. Sainovic was Mr. Milosevic's representative in Kosovo.

22 Mr. Surroi testified at 4547 of the transcript to 4548, that

23 Mr. Sainovic was clearly Mr. Milosevic's most trusted man in Kosovo.

24 Mr. Naumann testified much to the same -- much to the same -- in the same

25 manner. He testified that Mr. Sainovic was introduced to him as a

1 Deputy Prime Minister and the man responsible for Kosovo. And he also

2 signed the 25th of October agreement or record, meeting record, as the

3 one responsible for Kosovo. See also the evidence of Mr. DZ, P2508 at

4 paragraph 201; Mr. Vollebaek at 9508 of the transcript; Mr. Kickert,

5 11235 of the transcript. Mr. Merovci testified that both he and

6 Dr. Rugova knew that Mr. Sainovic's position as one of the persons

7 designated by -- sorry, that both he and Mr. -- and Dr. Rugova knew that

8 Sainovic was one of the persons designated by Mr. Milosevic to have

9 responsibility for Kosovo. That's P2588. And so did Dr. Rugova in his

10 statement.

11 Similarly, General Loncar, in his statement, concluded that from

12 the information he had, Sainovic was in charge of Kosovo on

13 Mr. Milosevic's instructions. And that is P2521, paragraph 38.

14 And there is interspersed in the evidence of Mr. -- of

15 Ambassador Petritsch many statements that Mr. Sainovic held this role.

16 He further said that there is no evidence that in 1999, Mr. Sainovic was

17 head of the Joint Command. And in addition to the evidence about -- the

18 evidence from General Vasiljevic, there is other evidence.

19 Ljubinko Cvetic testified that as far as he knew, as a head of

20 one of the Secretariats of the interior for Kosovo, Mr. Sainovic was head

21 of the Joint Command. And this is at T8078 -- at transcript 8078. And

22 Mr. Lukic made a similar statement in his interview, P4 -- P948 at page

23 106.

24 There is an exhibit which I'll get to, which details about 60

25 meetings of the Joint Command in 1998, in which Mr. Sainovic attended as

1 a head. I'll get to it. It's P1498, meetings from the 22nd of July 1998

2 to the 30th of October 1998, where Sainovic is identified as present and

3 participating in most of those meetings.

4 JUDGE BONOMY: Did you say 60 meetings?

5 MR. STAMP: 69 separate meetings.

6 Lest it be said that Sainovic may just have participated or

7 attended for even a single occasion after the 24th of March 1999, and as

8 that was a focus, a thrust of the submissions in this regard, that we

9 cannot by analogy refer to 98 and assume the same situation occurred in

10 1998 in 1999. There are other meetings in 1999 after the 24th of March.

11 There was one on the 4th of April 1999, and this was a MUP meeting, and

12 this is referred to at P1989, and in those minutes, it is said that

13 federal Deputy Prime Minister Nikola Sainovic joined the work. And it

14 refers to so many of the directives that Mr. Sainovic gave at that

15 meeting. In other words, he's giving directives to senior members of the

16 MUP in Kosovo on the 4th of April 1999.

17 Mr. Cvetic as the commander or Secretary of the Interior was also

18 present at that meeting and he said that Mr. Sainovic assisted and

19 requested and asked all the police present to conduct themselves highly

20 professionally, et cetera, in carrying out their duties, not to mistreat

21 anyone or committing any sort of misdemeanour.

22 He also gave a variety of instructions to the police and also

23 said operations that had been planned to take place on or up until the

24 4th of April were to be concluded by the end of that day and they were to

25 move on to other tasks. So he's directing them as to the timing of their

1 task. He's giving them directions that's what they were supposed to be

2 doing in the field. It meant that they were to make changes and

3 camouflage themselves against NATO attacks, et cetera. 7th of May 1999,

4 another MUP staff meeting. The minutes are P1996. Mr. Sainovic took

5 part according to the minutes, addressing the group at the very start.

6 The meeting was chaired by Mr. Lukic. Mr. Lukic opened the meeting but

7 immediately gave the floor to Mr. Sainovic who proceeded to make a speech

8 about the MUP VJ coordination, stating that all detachments of the PJP

9 Special Police units would return to their Secretariats and in

10 cooperation with the VJ work on destroying the remaining terrorist

11 groups.

12 Similarly, there is a meeting on the 17th of May. The minutes --

13 sorry, this is described in General Vasiljevic's testimony in the

14 Milosevic case. That's P2589, at transcript 15999 to 1600 [sic].

15 The next submission by learned counsel, Mr. Fila, was that the

16 Joint Command or the documents referring to the Joint Command, if the

17 documents are authentic, are VJ documents and they refer solely to army

18 units. If we look, Your Honours, at three of those documents, and I

19 believe there are many -- not necessarily many but there are others.

20 P2809 is an order for the engagement of the Serbian MUP in the Pristina

21 Corps area of responsibility and that is dated the 25th of April 1999.

22 This is a Pristina Corps command document but it speaks about coordinated

23 activities with the MUP.

24 But the three documents I wish to refer to, which highlight the

25 role of the Joint Command in ordering and coordinating the activities of

1 the VJ and the MUP is -- begins with P2015 the Joint Command order of the

2 23rd of March 1999, in which there is, among other things, an order to

3 "provide assistance to the MUP in crushing and destroying Siptar

4 terrorist forces in Orahovac, Suva Reka and Velika Krusa sector," and it

5 directly refers to the coordinated assault, if I may, of both VJ and MUP

6 forces.

7 I respectfully remind the Tribunal that in those areas, at that

8 time, there are significant uncharged offences of murder and deportations

9 committed by the forces of FRY and Serbia. Orahovac, Suva Reka. It also

10 specifically orders 549th Motorised Brigade to perform tasks in Orahovac

11 and Prizren at that time, and these are also two sites identified in the

12 indictment and this is item, page 3 of P2015. And it states that the

13 Joint Command from Pristina section shall command and control all forces

14 during combat operations.

15 P1981 implements on the brigade level the Joint Command order, I

16 mentioned before and it is signed by Colonel Bozidar Delic, who we have

17 heard about in this case before. And again demonstrates that the VJ, the

18 MUP and the PJP operated joint actions in the villages identified in the

19 indictment, at the relevant time identified in the indictment. P1995 is

20 an analysis of the operation of the 549th Motorised Brigade in routing

21 the KLA and lifting the blockade on Suva Reka as ordered by the

22 Joint Command and by Colonel Delic, and it again shows that the operation

23 in Suva Reka and Orahovac were conducted by forces under the

24 Joint Command and forces of the MUP and VJ.

25 Learned counsel, Mr. Fila also submitted that the MUP of Serbia

1 was fully under the jurisdiction of the republic. There is evidence

2 demonstrating, it is submitted, that the MUP of Serbia was not only under

3 the jurisdiction of the republic but was also resubordinated to the VJ

4 for operational purposes and in these activities or these operations,

5 they were under the command of a Joint Command.

6 P1920, I'd ask Your Honours to look at that. P14 -- well, I

7 should mention that it is an order, issued by General Ojdanic to the 3rd

8 Army, dated the 29th of May 1999 and it shows the subordination of the

9 MUP to the VJ, at least for the purposes of these operations.

10 P1483, demonstrates that for operations, those operations that

11 are discussed there, the forces of the MUP were resubordinated to the VJ.

12 It also states that forces of the Ministry of Internal Affairs and

13 civilian Defence shall be placed under the command of the 3rd Army during

14 the operation and they shall be used exclusively by your decision.

15 Similarly, an order from General Ojdanic on the 18th of April 1999 also

16 subordinates MUP forces to the VJ. And it says the authority for the

17 subordination, Article 17 of the Law on Defence. P2821 is to a similar

18 effect.

19 General Vasiljevic testified to the same effect, without going

20 into the details. This is at T1590 -- T15991 of the transcript. He also

21 said in his statement, at paragraph 43, and that's P2594, "Although

22 they" - that is the MUP - "were not formally part of the Supreme Command

23 the MUP was practically under the control of along the vertical line that

24 went through the Minister of Interior of Serbia and then further on in

25 depth," and he said that this is a legacy of the period when

1 Mr. Milosevic was president of Serbia and as such had more direct

2 authority over the Serbian MUP.

3 In this regard, I'd also refer the Court to P2809, an order

4 signed by General Lazarevic.

5 The next submission by Mr. Fila was that there was no evidence

6 establishing a chain of command of which Mr. Sainovic was a part or

7 demonstrating a vertical chain of command involving Mr. Sainovic.

8 I'd again refer the Court to Mr. -- to General Vasiljevic's

9 testimony that notwithstanding the fact that Mr. Sainovic was not an

10 appointed member of the police or the army, notwithstanding the fact that

11 he had apparently very little de jure responsibility for these organs,

12 that he attended the meetings and he commanded them; he exercised control

13 over them. And again, that is demonstrated in P1989, the minutes of the

14 meeting of the 4th of April 1999 of the MUP leadership.

15 I think my colleague Mr. Hannis referred to Mr. Perisic's letter,

16 so I won't go into the details of that, but Mr. Perisic -- sorry,

17 General Perisic complained about the alternative chain of command where

18 Mr. Sainovic was involved, as it were, in directing VJ units.

19 Mr. Cvetic testified that Mr. Sainovic was entrusted with the

20 coordination of the military and the police. That's at 8124 of the

21 transcript.

22 JUDGE BONOMY: The witness you've just referred to, could you

23 spell his name, please?

24 MR. STAMP: C-v-e-t-i-c.

25 JUDGE BONOMY: It's been repeated with a different spelling

1 several times but that should clarify any doubt in the transcript.

2 MR. STAMP: There is the evidence of Mr. Panic in this regard

3 which I will not quote, but that is at T6371, and I have various

4 references to General Vasiljevic. General Vasiljevic's testimony is

5 replete with this sort of reference.

6 Mr. Fila submitted that there is sufficient evidence -- that

7 there was no evidence demonstrating that Mr. Sainovic could have and, in

8 fact, did know about the crimes alleged in the indictment. In this issue

9 of knowledge, again, naturally, Your Honours would have to -- with -- and

10 I know, examine all the evidence of all the meetings that he attended,

11 assess the evidence in respect to the massive crimes that were going on

12 on the ground, and come to an appropriate conclusion. The Prosecution

13 submits that the only conclusion, even if that is not necessary at this

14 stage, but the only conclusion is that he must have known about what was

15 going on on the ground.

16 And in support of that, not only the general inference that

17 somebody in his position receiving these reports, travelling around

18 Kosovo, must have known about what was happening, there are also minutes

19 of meetings, for example, P1.000, the minutes of the SDC meeting on the

20 20th of December 1998, in which Sainovic is recorded as reporting to the

21 SDC on the activities of the VJ and the MUP in Kosovo, and the efficiency

22 of their cooperation while in operation in Kosovo.

23 General Loncar testified, and Your Honours can draw necessary

24 inferences from this testimony, that Mr. Sainovic insisted on being

25 informed of the activities in Kosovo and established strict communication

1 channels to facilitate the process, and these communication channels

2 involved himself, General Loncar, General Lukic, General Pavkovic,

3 General Lazarevic. This is transcript 7649 to 7654.

4 General Naumann testified that on the 19th of January 1999, he

5 gave Sainovic a list of the violations of the October agreement,

6 including issues of excessive force.

7 In addition, there is P400, a letter -- if I may just have a

8 moment to make an inquiry?

9 [Prosecution counsel confer]

10 MR. STAMP: I will -- sorry, I will check the facts for the

11 submission I intended to make and I'll get back to you. It is possible

12 that the document might not have been received into evidence.

13 As a matter of fact, it was received into evidence on the 10th of

14 October 2006, and this is Exhibit P400, which is a letter of the 26th of

15 March 1999, just about the time when the -- when many of the serious

16 offences were being committed, and this is from former ICTY Prosecutor

17 Louise Arbour to Mr. Sainovic, and the Prosecutor -- the then Prosecutor

18 made references to the escalating violence in Kosovo and expressed

19 concerns about the serious violations of international humanitarian law.

20 And Mr. Vasiljevic, General Vasiljevic, in his statement

21 indicated that at the meeting of the 17th of May 1999, it was reported

22 that crimes committed by the VJ and volunteers and those responsible for

23 crimes in Podujevo, were moved on to elsewhere until Biljani where they

24 committed other crimes.

25 I'm sorry, it was reported that the crimes committed by the VJ

1 and by volunteers in Podujevo were committed by persons who were moved on

2 to other places, and this is at P2594, paragraphs 63 to 72.

3 I will complete that submission as to when and where Mr. Sainovic

4 would have received that report when we resume, Your Honour.

5 I -- well, it's a matter really for the Court, but I'm wondering

6 it this is a convenient moment since I'll have to return anyway.

7 JUDGE BONOMY: Yes, we can break now, Mr. Stamp. Can you help us

8 with timetabling?

9 MR. STAMP: I will try hereafter just to refer to the documents.

10 I think I may be just about two hours more. I won't quote --

11 JUDGE BONOMY: You have still to deal with Mr. Lukic, you have

12 still to deal with general matters. In fact, you have still to deal with

13 both the first and second accused in relation to Article 7(3).

14 MR. STAMP: Yes, Your Honour.

15 JUDGE BONOMY: So you've -- I'm surprised you think you've only

16 got two hours, but ...

17 MR. STAMP: Maybe I'm optimistic, but I probably -- if I just

18 refer to the documents without citing -- without quoting as much as I

19 have, I might --

20 JUDGE BONOMY: All right. Thank you.

21 MR. STAMP: It sounds optimistic now I think about it.

22 JUDGE BONOMY: We will resume at 9.00 on Monday and sit until

23 1.45.

24 --- Whereupon the hearing adjourned at 3.30 p.m.,

25 to be reconvened on Monday, the 7th day of May,

1 2007, at 9.00 a.m.

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