1 Monday, 7 May 2007

2 [Rule 98 bis Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.03 a.m.

6 JUDGE BONOMY: Mr. Stamp, please continue with your submission.

7 MR. STAMP: Thank you, Your Honour. May it please the Court.

8 Before I continue where I left off, on the last day we were here I

9 had indicated in response to an objection by learned counsel

10 Mr. O'Sullivan that I would check what the situation was in respect to

11 Mr. Tanic's statement and what parts are admissible. And I am to report

12 that on this occasion Mr. O'Sullivan is correct. The situation in respect

13 of Mr. Tanic's statement is that only paragraphs 1 to 45 would be

14 admissible; the remainder were to provide context in respect to the

15 cross-examination.

16 JUDGE BONOMY: Thank you.

17 MR. STAMP: When we broke last, Your Honours, I was referring the

18 Court to some of the evidence relating to the knowledge, both that could

19 be inferred and directly, that the accused Sainovic would have and did

20 have about the offences that were being committed in Kosovo and the

21 likelihood that these offences would continue to be committed. And we

22 were -- I was referring to the meeting on the 17th of May, 1999, and it is

23 submitted that his knowledge is further evidenced by his attendance at

24 that meeting where it was reported that crimes had been committed by

25 members of the VJ and by volunteers, and Serb officials also stated that a

1 group of volunteers that entered Grocka without the usual training or

2 check-ups. Mr. Vasiljevic who gave testimony about this meeting notes or

3 noted from the meeting that there was a reference to the SAJ integrating

4 into other -- integrating into the organisation itself groups and forces

5 which had not fulfilled the requirements of serving within the MUP. And

6 this is from his written statement P2592 and 8873.

7 From this it may be inferred that Mr. Sainovic was aware of the

8 nature of the reserve forces and their propensity to commit crimes, and in

9 addition to this army officials at the meeting reported that the forces

10 responsible for the crimes at Podujevo had moved into Gnjilane without any

11 investigation or punishment, and once in Gnjilane these forces committed

12 additional crimes. The officials at the meetings were also told by army

13 reporting personnel that the meeting that Radosavljevic's unit, which

14 included Arkan's Tigers, had committed crimes in the Kosovo area.

15 So this is one occasion on which Mr. Sainovic received substantial

16 information about ongoing crimes committed by forces of the FRY and

17 Serbia, in particular volunteer forces or forces incorporated into the MUP

18 units and their propensity as well to commit crimes.

19 In addition to this, there is evidence again in P2594 from

20 Mr. Vasiljevic, a statement of Mr. Vasiljevic, that there was at the

21 disposal of Mr. Sainovic a reporting system where all senior members of

22 the VJ and the MUP in Kosovo and the civilian structures in Kosovo

23 reported to Mr. Sainovic on events in Kosovo during regular meetings, and

24 they transformed his instructions into combat operations and activities,

25 and these led to the crimes which are charged in the indictment. Indeed,

1 Mr. Loncar -- sorry, General Loncar testified that Mr. Sainovic insisted

2 on being informed in a timely manner of incidents in the field, especially

3 those involving many victims. When big incidents occurred such as the

4 events in Racak in January 1999, Mr. Pavkovic and General Lukic were

5 required to contact General [sic] Sainovic directly, and this is the

6 testimony of Dusan Loncar at transcript page numbers 7576 to 7577.

7 In that part of the testimony, Mr. -- General Loncar also

8 indicated that even when some of the senior officers on the ground were or

9 sought to report incidents to Mr. Sainovic about the -- or sought to

10 report to Mr. Sainovic about the events at Racak, he clearly was aware of

11 the details of the events before many of these persons, and this indicates

12 that a system of reporting or this system of reporting that he had at his

13 disposal was sufficiently efficient to inform him of what was happening on

14 the ground and he would be aware of the events referred to in the

15 indictment.

16 In the opening citation from Mr. -- from General Vasiljevic's

17 statement I referred to General Vasiljevic's assessment that Mr. Sainovic

18 was report -- receiving reports from persons as high as General Lazarevic,

19 General Lukic on a very regular basis, probably a daily basis because of

20 the nature and topics, 24-hour reporting that occurred in the course of

21 that meeting. And I have also referred the Court to the many meetings he

22 attended with senior personnel in which he would have been informed.

23 In addition, his other interactions with international

24 interlocutors supply additional grounds for inferring that Mr. Sainovic

25 was aware of the criminal activity in Kosovo. As the evidence or as

1 recalled by General DZ, for example, the meeting of the 4th of December,

2 1992, Mr. Sainovic was informed that the police in Malisevo were harassing

3 Albanians and were therefore part of the problem. Mr. Sainovic not only

4 refused to diminish the police presence but also failed to investigate the

5 allegations made by General DZ and this is in the course of his testimony

6 at pages 7777 to 7782.

7 Mr. Sainovic, according to General Naumann, was also present at a

8 meeting during which Mr. Milosevic was given a list of violations of the

9 October agreement which were committed by Serb forces. This is in

10 General Naumann's statement at P2512 and also his testimony -- I beg your

11 pardon, P2512 is his testimony in the Milosevic case and it's at 7008 to

12 7009.

13 The -- a similar observation has been made in respect to his

14 meeting with the Kosovar Albanian leaders as has been made in respect to

15 this very same meeting and Mr. Milutinovic's state of mind or awareness as

16 a result of that meeting. Again, without going into the submission again,

17 these were the leaders, acknowledged leaders, of the Kosovar Albanian

18 people. And both Mr. Merovci and Mr. Rugova, according to the evidence,

19 stated that Mr. Sainovic was present when Mr. Rugova made complaints to

20 Mr. Milutinovic about members of the forces of the FRY, the MUP in

21 particular, forcing Albanians from their homes and destroying their homes.

22 And that is the statement of Mr. Merovci, P2588, at paragraph 72; and the

23 statement of Mr. Rugova, P2613, at page 11.

24 So the -- this ongoing knowledge of -- in circumstances where he

25 did not act to end or prevent the continuing offences in Kosovo,

1 indicates, it is respectfully submitted and it is an inference which the

2 open to the Court and therefore legitimately before the Court, that

3 Mr. Sainovic shared the intent of the joint criminal enterprise, that he

4 shared the intent to carry out the goals of the JCE to recast the ethnic

5 make-up of Kosovo. According to Ratomir Tanic at 6325 to 6 of the

6 transcript, as early as the spring of 1998 Mr. Sainovic was no longer

7 interested or committed to the peaceful resolution of the problems in

8 Kosovo. In addition, Klaus Naumann testified that at a meeting with

9 internationals around the 24th of October, 1998, either Mr. Sainovic, or

10 if not him, Mr. Milosevic in the presence of Mr. Sainovic made statements

11 regarding the birth-rates of Kosovar Albanians and the need to strike a

12 better ethnic balance. This is at paragraph 29 of the statement of

13 Mr. Naumann, which is P1767.

14 Whether Mr. Sainovic made the statement or it was made by

15 Mr. Milosevic in his presence, it indicates his at least tacit agreement

16 to the stated position.

17 I have already referred the Court to some of the evidence about

18 the de facto exercise of authority and power by Mr. Sainovic, and I will

19 wrap up by referring to some other items of evidence which demonstrates,

20 as submitted before, that he exercised command authority, effective

21 authority, as Mr. Milosevic's representative in Kosovo. He was, in his

22 official capacity, Mr. Milosevic's representative. He had been sent from

23 early 1998 to Kosovo by Mr. Milosevic on at least two fact-finding

24 missions and had the authority to report back to Mr. Milosevic about the

25 situation or his insight into the situation on the ground in Kosovo. This

1 can be gleaned from his interview, P605 at page 27, 28. In addition to

2 the example I gave earlier, Veton Surroi observed, in respect to the

3 Rambouillet negotiations, that whenever direct consultations with

4 Mr. Milosevic was required, Mr. Sainovic would be the one to fly to

5 Belgrade to speak with him.

6 And in addition to this, in addition to the power to approve and

7 to lay the guide-lines within which the generals on the ground could

8 prepare the plans or the -- the strategy of the campaign on the ground,

9 there were occasions in which Mr. Sainovic directly interfered or directly

10 exercised authority over the VJ. We have seen already that he did, to a

11 significant degree, directly exercise authority over the MUP at his

12 presence at MUP meetings, giving specific instructions, and that is from

13 the evidence, as I discussed earlier, of Mr. Cvetic. And there are

14 specific instances where he, as head of the Joint Command, exercised this

15 sort of authority over the VJ. General Naumann testified that prior to

16 Mr. Milosevic's extremely reluctant and late signature on the 28th of

17 October, 1998, record of meeting between NATO representatives and the FRY

18 and Serbia, Mr. Sainovic signed, was a lone signatory who could sign on

19 behalf of both the VJ and the FRY.

20 Ratomir Tanic at 6373 to 6374 of the transcript testified that

21 Mr. Pavkovic -- sorry, it's General Pavkovic took orders from Mr. Sainovic

22 to engage military units to assist the MUP and to give the MUP mortars and

23 tanks, contrary to constitutional provisions. And we see that

24 General Vasiljevic, in his testimony in the Milosevic case, that is P2589,

25 at 16429 to 16430 of that transcript, said that Mr. Sainovic would also

1 engage in the issuance of precise orders and this, he said, was evidenced

2 by his ordering of detachments on Mount Rudnik to attack Laus in 1998, and

3 Your Honours have also heard about the complaint by the former Chief of

4 Staff of the VJ, General Perisic, about Sainovic's directing VJ forces

5 which is a letter, P717.

6 In addition to his exercise of de facto command responsibilities

7 over the VJ and the FRY, there's evidence of General Loncar, that

8 Mr. Sainovic, together with Mr. Andjelkovic, worked together to establish

9 a local police force in Kosovo and also, as head of the Joint Command,

10 Mr. Sainovic exercised authority over the local defence.

11 The items of evidence I've outlined, Your Honours, I respectfully

12 submit goes to -- submit -- goes to establish that Mr. Sainovic shared the

13 intent of the joint criminal enterprise, was aware of the persecutory

14 conduct of the forces of the FRY and Serbia against Kosovar Albanians

15 prior to the 23rd of March, 1999, and after the 23rd of March, 1999; and

16 he exercised his authority with all this knowledge to further the joint

17 criminal enterprise; that he participated in the planning of the

18 activities resulting in the expulsion of the Kosovar Albanians; he aided

19 and abetted the parties involved in these expulsions. His continued

20 failure to take appropriate steps, which I'll come to shortly, encouraged

21 and instigated continued perpetration of these offences.

22 I'd like, with your leave, now move to the evidence in respect to

23 Mr. Lukic, and I would do it, I think, conveniently if I make some general

24 submissions first and then move to the specific complaints or submissions

25 raised by learned counsel for the Defence.

1 The Prosecution's case is that General Lukic was a member of the

2 joint criminal enterprise charged in the indictment and that he actively

3 contributed to its implementation. As chief of the MUP staff for Kosovo

4 and Metohija, he was the highest-ranking police officer of the MUP in

5 Kosovo during the indictment period. He participated in the joint

6 criminal enterprise by using the MUP staff to plan, direct, and coordinate

7 the activities and operations of the MUP in Kosovo. He issued orders and

8 instructions to subordinates in furtherance of the joint criminal

9 enterprise, pursuant to instructions from senior members of the joint

10 criminal enterprise including the Joint Command.

11 Mr. Lukic held key -- held a key position in the MUP chain of

12 command. He was appointed as head of the MUP staff in Kosovo on 11th of

13 May, 1998, by decision signed by the head of the MUP public security

14 sector, General Djordjevic. That's P1252. And he remained in that

15 position throughout the war in 1999, and that can be determined from

16 P1811. As head of the MUP staff, he commanded, controlled, and exercised

17 authority over the MUP and its subordinate units in Kosovo. P1251, the

18 decision on the formation of the MUP staff dated the 15th of May, 1998,

19 and signed by General Djordjevic, states the mandate of the MUP staff, and

20 that was a plan to organise, guide, and coordinate the work of the

21 ministry's organisational units and the work units posted or attached to

22 it during their engagement in the suppression of terrorism in the

23 territory of the Kosovo province. And it is significant that it's -- the

24 authority extended not only to the units domicile, as it were, the units

25 posted in Kosovo and Metohija on a long-term basis, but also units that

1 were seconded to it or sent to it from other areas or other jurisdictions

2 of the MUP. The MUP staff was expanded in June of 1990, bringing the RDB

3 and the RJB together in the MUP staff headquarters in Pristina. The

4 expanded staff also included the chiefs of Kosovo's seven secretariats of

5 internal affairs. P1505 is a decision to establish a ministerial staff,

6 and it indicates, as I just submitted, the various groups that were

7 subordinated to the MUP staff in Kosovo.

8 Ljubinko Cvetic, the former chief of the Kosovska Mitrovica SUP

9 stated in evidence that in practice whatever special units such as special

10 police units, the PJP, special anti-terrorist units, SAJ, operational

11 sweep groups, or the special operational units, that's the OPGs or JSOs,

12 were employed or engaged in operations in Kosovo, these units fell under

13 the command and structure of the MUP staff. The MUP staff would issue

14 orders to the commanders of these units, and that is at pages 8073 to 5 of

15 the transcript.

16 The MUP staff from their control, direction, and ordering of these

17 various elements that we are told by the crime base witnesses committed

18 the various crimes against them in Kosovo. The MUP staff played a crucial

19 [Realtime transcript read in error "Velika Krusa"] role in implementing

20 the joint criminal enterprise in their control of the activities of these

21 groups. And through the MUP staff Mr. Lukic planned, directed, and

22 coordinated these groups and their activities in Kosovo. He received his

23 from his superiors, who were also members of the JCE, and he implemented

24 the JCE by communicating and directing the SUPs and the MUP units, the

25 special MUP units that were deployed, in Kosovo, that's by communicating

1 to and directing these units.

2 JUDGE BONOMY: Could you repeat what you said about Velika Krusa.

3 MR. STAMP: Sorry?

4 JUDGE BONOMY: Could you repeat what you said about Velika Krusa.

5 MR. STAMP: I don't think I said anything about Velika Krusa just

6 now.

7 JUDGE BONOMY: Nor did I, but it's appeared in the transcript.

8 MR. ACKERMAN: Your Honour, his words were: "Played a crucial

9 role."

10 JUDGE BONOMY: "Played a crucial role." Thank you.

11 MR. STAMP: I haven't found it yet, but I think that would be

12 correct.

13 In his interview with the OTP Mr. -- General Lukic stated that the

14 role of the Joint Command was to coordinate police and army duties in

15 Kosovo and that it was headed by Mr. Sainovic. And his interview is P948

16 and the part I'm referring to is pages 34 to 35. He said that the members

17 of the Joint Command which included the head of the MUP staff, that's

18 himself; the commander of the 3rd Army; and other persons would hold joint

19 meetings to review the security situation and exchange information.

20 According to Mr. Cvetic at 8080 and 8194 to 95 of the transcript, as a

21 member of the Joint Command, General Lukic was in charge of implementing

22 the decisions adopted by the joint staff, by the MUP staff.

23 General Lukic regularly attended Joint Command meetings and

24 briefings on MUP-related matters taking part in discussions on the

25 operations to be conducted. This is what Mr. -- General Lukic himself

1 said in his interview at pages 35 to 36. He and other members of the

2 Joint Command planned, ordered, and coordinated joint operations to be

3 conducted by military and police units in Kosovo. For example, without

4 going into these documents too much because they were cited previously,

5 Exhibit 1968 is a Joint Command order of the 24th of March, 1999,

6 instructing the Pristina Corps to support MUP forces in anti-terrorist

7 operations conducted in the Drenica sector. Another example is

8 Exhibit P1998 [sic] which is a Joint Command operation report of November

9 1998 which evidences the role of the Joint Command in coordinating the

10 activities of both the MUP and the VJ.

11 General Lukic, it is submitted, participated in the planning and

12 coordination of joint MUP/VJ anti-terrorist operations in 1998 and 1999,

13 which involved the use of excessive force against the Kosovo Albanians and

14 ultimately the use of force designed to expel them or expel a substantial

15 part of them from the territory of Kosovo and Metohija.

16 The evidence from the crime base witnesses shows that the

17 anti-terrorist operations as they are naturally described in the police

18 documents consistently involved the use of excessive force against the

19 Kosovar Albanian population. During his tour of Kosovo in 1999,

20 John Crosland, a British Defence Attache, observed joint MUP/VJ clearing

21 operations against Albanian villages, and this is his statement, P2645,

22 paragraphs 37 to 42. He said that he, himself, saw between 200 and 300

23 villages burnt throughout 1998 and into 1999. Crops were just wantonly

24 burned; businesses of all sorts, for example petrol stations and shops,

25 were looted. And within the towns of Decani, Pec, Djakovica, the Albanian

1 areas were completely burned up.

2 And he described the standard tactics employed in these

3 operations, and it was that there were MUP special units, such as PJPs and

4 SAJ units, entering villages and settlements on foot while the VJ would

5 establish a cordon and provide fire support with tank and artillery. We

6 respectfully submit that the trial record is replete with evidence that

7 the MUP and VJ units employed similar tactics in 1999 which resulted in

8 the commission of the crimes.

9 In early 1999, Richard Ciaglinski observed a similar practice in a

10 joint VJ/MUP operation. He stated that the normal method of operation was

11 that the MUP would lead operation and provide infantry soldiers on the

12 ground, while the VJ's role was to provide heavy fire support. And this

13 is at page 12 of his statement, which is P2488. And Mr. Hannis also

14 enumerated the crime base witnesses who also spoke about joint MUP/VJ

15 attacks on their villages during the course of which the local population

16 was forcibly expelled. The evidence, as I've indicated, is that

17 General Lukic was one of the directors, one of the senior participants,

18 senior planners and coordinators, of these assaults.

19 General Lukic also assisted in the arming of the non-Albanian

20 civilians in Kosovo. We have seen some of the reports including those

21 that I discussed earlier that were tendered through Mr. Cvetic discussing

22 the participation of what were described as the armed Siptar -- armed

23 non-Siptar population in police operations, police and VJ operations. The

24 evidence demonstrates that the MUP used local citizens and those with MUP

25 reservist status in village defence units, Exhibit P1064, which is a July

1 1998 Joint Command instruction on defending populated areas, gave MUP

2 command over local defence units.

3 By July 1998, the situation was such that General Lukic could send

4 a letter to all the secretariats of the interior, the SUPs, attaching

5 extracts from a register of weapons issued by the VJ to: "Citizens engage

6 in defence of villages and cities through the reserve police squads in the

7 municipalities" and these fell under the seven SUPs. In that letter he

8 directed the SUP chiefs to update their reserve police unit records to

9 support their defence plans. This is --

10 JUDGE BONOMY: I don't think I understand that submission,

11 Mr. Stamp. It may again be a misrepresentation in the transcript. "By

12 July 1998 the situation was such that General Lukic could send a letter to

13 the SUPs attaching extracts from a register of weapons issued by the

14 VJ" --

15 MR. STAMP: Very well, I'll put it in this way. P1115 [Realtime

16 transcript read in error "P1150"] is a letter sent by General Lukic to the

17 heads of all the SUPs. In which he attached extracts from a register of

18 weapons that were issued by the VJ to various citizens, and he in that

19 letter directed the SUP chiefs to update their reserve police unit records

20 in respect to citizens who had received these weapons. The submission is

21 that this letter, P1115, indicate that General Lukic through his position

22 as head of the MUP staff in Kosovo, also exercised control over these

23 so-called armed non-Siptar members of the population that had been issued

24 weapons.

25 Indeed, an accompanying page of that exhibit, covering only the

1 Kosovska Mitrovica SUP area, notes that 7.436 weapons were assigned -- I'm

2 sorry, an accompanying page indicates that 7.436 weapons were assigned to

3 the six municipalities which the MUP covered. So this shows that the

4 military, the VJ, provided weapons to these units and these units were

5 formed around the reserve MUP units and that they were under the control

6 of the MUP staff. This is also supported by the evidence of Mr. Cvetic at

7 pages 8054 to 8546 of the transcript.

8 The -- two of the exhibits that refer to the use of these armed

9 civilians in police operations are 1968 and P1878. And Mr. Cvetic

10 explained the expression "armed non-Siptar population" in these orders and

11 also said at 8090 of the transcript that in past Serbian population in the

12 Drenica area was armed and assigned to either VJ or MUP units.

13 In addition to this evidence shows that -- it is submitted that

14 contrary, to law volunteers who came to Kosovo were armed and were engaged

15 by the MUP. Exhibit 1990, the minutes of the MUP staff meeting of the

16 17th of February, 1999, records instructions of the MUP minister

17 Vlajko Stojiljkovic as to how to approach and engage volunteers that

18 appeared in Kosovo indicating that such men were to be retained and

19 included in the MUP as reserve police. You'll remember the evidence of

20 Mr. Cvetic, who said that contrary to what happened, the law was that the

21 MUP or the law did not allow the MUP to engage volunteers; only the VJ was

22 allowed to engage volunteers. And Cvetic recalled that at a MUP meeting

23 or at a meeting of the MUP staff on the 17th of March, 1999, General Lukic

24 said that in case volunteers appeared in Kosovo, such men were to be

25 retained and incorporated into MUP operations once the war began. And

1 that's at 8099 of the transcript.

2 The -- this reference is also relevant, Your Honours, to the issue

3 of failure to prevent. As happens in circumstances like these, a lot of

4 the evidence in respect to different elements or different areas of the

5 case merge or overlap, and I mention this so that I won't have to go over

6 that document again, evidence, Your Honours, is also that General Lukic in

7 the planning, instigating, and ordering the concealment by members of the

8 MUP and subordinate MUP -- subordinate units of the crime of murder. The

9 evidence shows that General Lukic was involved in coordinating the

10 transfer of bodies of Kosovar Albanians in mass grave sites to Serbia.

11 Bozidar Protic, one of the drivers involved in the transfer of the

12 bodies, testified that Mr. Lukic contacted him on at least three occasions

13 and gave him instructions as to where to pick up and transport the bodies

14 and that he acted on these instructions. Credibility issues were raised

15 in respect to Mr. Protic, in particular why it is the first time he spoke

16 or was interviewed in 2001 or 2000 he did not mention Mr. Lukic; he

17 explained that. Here it is submitted it is not -- or now it is submitted

18 it is not the appropriate time for us to weigh these fine issues of

19 credibility, but I would -- I would submit this, that his testimony about

20 his contact with General Lukic before he was engaged to remove the bodies,

21 during the period when he was engaged to remove the body when he spoke to

22 General Lukic on a few occasions, and after that period when both

23 General Lukic and General Djordjevic, he spoke to both of them in respect

24 to certain arrangements, is evidence at this stage on which a Court can

25 act to show that General Lukic participated in the concealment of these

1 bodies. And I remind the Court that the evidence is that the first

2 shipment occurred somewhere in the first week, first few days of April;

3 that is very shortly after the hostilities commenced.

4 Not much has been said in these submissions about the bodies, so

5 if I may, I will not discuss them at this stage in detail except to point

6 out that well over 800 bodies of Kosovar Albanians were found at several

7 graves in Kosovo. 828 bodies; I've found the figure. Batajnica had 705

8 bodies. Some of them, 300 of them, were identified as victims from Meja

9 and Suva Reka, charged in the indictment. From the evidence it is clear

10 that these bodies were transported there within just a few days after the

11 alleged offences.

12 Petrovo Selo had 75 bodies, 22 of which were identified as victims

13 of the Izbica massacre, and at Lake Perucac there were 48 bodies, all of

14 them victims from Kosovo.

15 Your Honours, 828 bodies recovered in these mass graves in Serbia

16 that were identified are persons whose names appear on the ICRC list of

17 missing persons in Kosovo during the indictment period. This ICRC list

18 was incorporated in the list of the UNMIK organisation for missing persons

19 and was tendered through Dr. Baraybar. I thought I had noted the number,

20 the exhibit number, but this number is wrong and I will submit the number

21 shortly. And most of these persons from the scientific examination of the

22 remains, particularly in some cases bone fragments, were killed by

23 gun-shot wounds.

24 Much can reasonably be inferred, it is respectfully submitted,

25 from the foregoing in respect to Mr. Lukic's intent and that he shared the

1 intent of the joint criminal enterprise and shared the intent to cover up

2 crimes. That he knew that the crimes committed in Kosovo by the forces of

3 the FRY and Serbia during the indictment period, he knew of them and he

4 was aware that he, his actions were contributing to the commission of the

5 crimes. He was informed of the massive displacement of Kosovo Albanians

6 and the perpetration of numerous other crimes through the reporting

7 systems of the MUP at his attendance at the various staff meetings.

8 Indeed it is respectfully submitted that it is inconceivable that the

9 police officer in charge of operations on the ground in an area the size

10 of Kosovo would not be aware of such large-scale crimes and such

11 large-scale movements of people.

12 The evidence in the trial record shows that at all times relevant

13 to the indictment, the MUP had effective and functioning reporting

14 structures in Kosovo. General Lukic issued instructions, detailed

15 instructions, to his immediate subordinates to ensure that the periodic

16 reports, including daily reports, were sent up the chain of command and

17 that he was kept fully apprised of the developments on the ground and of

18 the progress of operations. Exhibit 2528 is such an order.

19 Ljubinko Cvetic stated that all police stations and OUPs had to

20 brief the SUPs and that based on General Lukic's instructions, the

21 secretariats compiled information and forwarded it up the chain of

22 command. In February 1999, the police stations throughout Kosovo ordered

23 to report significant incidents directly and immediately to the MUP

24 operation centre, in the MUP headquarters in Belgrade and to the MUP staff

25 for Kosovo. And this reinforced Lukic's control of the situation. This

1 is P1092.

2 Exhibits P1990 are minutes of MUP meetings or is the minutes of

3 MUP meetings or a meeting dated the 17th of February, and it shows that

4 reports were made. And again Exhibit P1998, further minutes of the MUP

5 meeting on the 4th of April, 1999, has Lukic reminding the SUP chief and

6 unit commanders of their duty to report.

7 Lukic would also have been kept aware of the situation by his

8 interactions with senior members of the JCE at MUP staff meetings. Many

9 of these meetings were attended by Mr. Sainovic, the head of the

10 Joint Command; the minister of internal affairs, Mr. Stojiljkovic; the

11 head of the RDB, Mr. Djordjevic; the head of police operations or

12 administration in the RJB, Mr. Stevanovic; and the command of the MUP

13 special units. These meetings and what Mr. Lukic reported and had to say

14 at these meetings indicate that he had a hands-on involvement and control

15 of affairs that were occurring on the ground.

16 General Lukic also knew of the likelihood that MUP units would

17 commit crimes in 1998 due to the widespread reporting from many sources of

18 allegations of crimes committed in Kosovo in 1998. He was informed of

19 crimes committed by forces under his command in 1998 through numerous

20 complaints voiced by international observers - this applies to all of the

21 accused. The allegations were publicly and prominently raised in United

22 Nations by human rights organisations. Fred Abrahams testified about

23 making several reports, or forwarding several reports to the police

24 authorities, domestic and foreign media, foreign diplomats. The entire

25 world, as is alleged in the indictment, was aware that there were at least

1 allegations of serious violations of humanitarian rights of Kosovar

2 Albanians. Indeed, this was the stated, the ostensible reason for the

3 threat of NATO involvement in Kosovo.

4 On one specific occasion, during a meeting between General Lukic

5 and General DZ in December 1998, General DZ informed General Lukic that

6 the KVM had received unconfirmed reports of the use of excessive force by

7 the police in village searches in Kosovo Polje. Lukic sought to refute

8 these allegations. Shaun Byrnes, the former head of the United States

9 KDOM stated that in the summer of 1998 he met with General Lukic on a

10 regular basis and informed him and his team that KDOM, US-KDOM, had

11 observed MUP forces forcibly expelling Kosovar Albanians from their

12 villages, destroying property, and torching houses. On one occasion

13 himself, Byrnes, personally observed this. Lukic's reaction to Byrnes'

14 complaints was either to dismiss them as untrue or to say that the MUP

15 actions were carried out in response to KLA attacks. This is the

16 transcript of the evidence of Shaun Byrnes from 12148 to 12153.

17 Apart from engaging in what Mr. Cvetic said was an unlawful

18 practice of receiving volunteers into the MUP, General Lukic also knew of

19 and approved of incorporation into the MUP of volunteer groups that had a

20 history of allegations of involvements in serious crimes against civilians

21 in other conflicts and also in the Kosovo conflict in 1998. General Lukic

22 approved the integration of about 128 members of the Skorpions into the

23 SAJ as reservists in March 1999 --

24 MR. IVETIC: Your Honour, I would object. I believe counsel's

25 relying upon a document that has not been entered into evidence and was

1 the subject of many objections and many rulings by this Court refusing to

2 admit it into evidence. The unsigned, unstamped, unletterhead -- without

3 a letterhead piece of paper that makes these allegations. So I think that

4 is not in evidence.

5 JUDGE BONOMY: Mr. Stamp.

6 MR. STAMP: I -- if I may, I wish to be absolutely precise so I

7 could return to this. I believe it is in evidence or there is evidence of

8 the submission, but I will withdraw it now and return to it.

9 JUDGE BONOMY: Well, do we have a number for it?

10 MR. STAMP: Actually, I was referring to the evidence of

11 Goran Stoparic at P2224. The --

12 JUDGE BONOMY: I don't think it -- well, his name doesn't appear

13 in the transcript. Did you mention him?

14 MR. STAMP: Sorry?

15 JUDGE BONOMY: The name "Stoparic" does not appear in the

16 transcript. Did you mention him as the source?

17 MR. STAMP: No, Your Honour, I did not. Mr. Ivetic rose before I

18 referred to the source. But I think I understand Mr. Ivetic's complaint,

19 not that I agree with it, but I'd like to check it because I see where I

20 should have a source there is -- there is an issue as to that source and

21 the submission is further supported by -- or a further submission, an

22 additional submission, the source would be Goran Stoparic.

23 JUDGE BONOMY: Well, if you would clear this at the break --

24 MR. STAMP: Immediately at the break I will.

25 JUDGE BONOMY: -- you can tell us later.

1 MR. STAMP: Goran Stoparic, a former member of the Skorpions,

2 stated that his unit, upon their arrival in Kosovo, was issued with MUP

3 uniforms, equipment, and attached to the SAJ. Soon after their deployment

4 in Kosovo, members of the Skorpions executed a group of women and children

5 in Podujevo and they were subsequently sent back to Serbia. However, in

6 April 1999, 108 members of the same unit were redeployed in Kosovo under

7 the SAJ command and they operated in Kosovo until May 1999.

8 When one reviews the reporting system that Mr. -- that

9 General Lukic had at his disposal and the level of detail that he could

10 furnish when he himself did is reporting up, it is a clear inference, it

11 is submitted, that he must have known of the deployment and redeployment

12 of this unit under his command. In addition, Exhibit 1505, which is a

13 decision to establish the Ministerial Staff for the Suppression of

14 Terrorism dated June 1999 shows that one of the members of the MUP staff

15 in 1998 was Milorad Ulemek, also known as Legija. Legija was the

16 operations or the head of special operations of the MUP staff.

17 JUDGE BONOMY: What's the date of that exhibit?

18 MR. STAMP: It is in June 1999, the date is the --

19 JUDGE BONOMY: And it's referring to the position in 1998, is it?

20 MR. STAMP: Yes, Your Honour. I think it is referring to the

21 position in 1999 and not 1998. I'm sorry.

22 The date of the exhibit is actually June 1998, 16th of June, 1998,

23 and it refers to this person at that time as being the assistant head of

24 special operations of the MUP staff. General Vasiljevic stated at P2594,

25 paragraph 30, that this unit, Legija's unit, was involved in the

1 commission of crimes in 1999.

2 General Lukic failed to take substantive measures to prevent his

3 subordinates from committing the crimes alleged or to punish them for the

4 crimes they had committed. This, it is submitted, although there is no

5 actual requirement for causation in respect to Article 7(3), but it is

6 submitted that his failure to exercise appropriate and responsible control

7 over his units contributed significantly to the furtherance of the joint

8 criminal enterprise and having regard to his state of knowledge --

9 MR. IVETIC: Your Honour, I hate having to do this again, but the

10 statement of Vasiljevic does not refer to Legija's unit, it refers to a

11 unit called Legija, which I think is a significant point and I'll have

12 more points at the conclusion of Mr. Stamp's submissions regarding other

13 misstatements of the evidence that have been made thus far.

14 JUDGE BONOMY: Well, we can deal with all of these once the

15 submission is completed.

16 MR. STAMP: As the head of the MUP staff, General Lukic had the

17 material ability to prevent crimes from being committed as well as enforce

18 discipline among MUP units, including special units. A functioning

19 discipline and justice system existed to ensure discipline and respect for

20 the law in the MUP; however, despite his knowledge of the widespread and

21 systematic crimes committed by the forces under his command in 1998 and

22 1999, he failed to take substantive measures from prevent his subordinates

23 from committing further crimes or to punish them for the crimes they had

24 committed over the protracted period of time in Kosovo. In addition to

25 the inference that in doing so he furthered the joint criminal enterprise,

1 it is also submitted that from this the only reasonable inference to be

2 drawn is that he intended these crimes to occur.

3 And it is therefore submitted in light of the evidence of the

4 offences committed by the MUP on the ground in Kosovo that a reasonable

5 Trial Chamber could find that General Lukic is responsible as a

6 co-perpetrator for the commission of the crimes charged in the indictment.

7 General Lukic, it is submitted, is also responsible pursuant to

8 Article 7(1) for ordering, instigating, aiding and abetting the crimes

9 charged in the indictment. The evidence establishes the criminal

10 responsibility of General Lukic on the basis of planning or ordering under

11 Article 7(1) of the Statute. Furthermore, this evidence combined with his

12 failure to discipline units who committed crimes established his criminal

13 responsibility on the basis of instigating, and aiding and abetting by

14 encouraging. Despite his knowledge of the crimes committed by MUP units

15 during this period, that is, the period relevant to the indictment,

16 General Lukic failed to take substantive measures to prevent his

17 subordinates from committing further crimes. And in doing so or failing

18 to do so, he created an atmosphere of impunity, which encouraged and

19 instigated the crimes charged in the indictment.

20 He also aided and abetted the commission of the crimes by

21 permitting, directing, and facilitating the involvement of MUP personnel

22 and resources in the perpetration of these crimes. He knew that without

23 the involvement of the MUP units in Kosovo, the objectives of the joint

24 criminal enterprise could not be achieved, and his role was to employ and

25 engage these units for that or those purposes. By implementing

1 instructions received from the MUP minister in Belgrade and from the Joint

2 Command, he lent material and moral support to the members of the joint

3 criminal enterprise. And by abstaining from taking substantive

4 disciplinary measures against MUP members who committed crimes in Kosovo,

5 he encouraged and morally supported the direct perpetrators of crimes

6 against Kosovo Albanian population.

7 In respect to responsibility under Article 7(3), General Lukic as

8 a commander, as the appointed commander of the MUP staff in Kosovo or for

9 Kosovo and Metohija exercised de jure command over the MUP units,

10 including the special units. I think I already referred the Court to the

11 documents establishing the staff and the jurisdiction of the staff.

12 As a member of the Joint Command, General Lukic also exercised de

13 facto authority over other forces operating under the authority of the

14 Joint Command. He had the material ability, therefore, to prevent crimes

15 from being committed as well as to enforce discipline among MUP units,

16 including special units. As head of the MUP staff, General Lukic had the

17 material ability to issue orders to subordinate officers, including

18 commanders of special units giving such instructions.

19 During the relevant period to the indictment, a functioning

20 discipline and justice system existed to ensure discipline and respect for

21 law within the MUP. The law on internal affairs established a framework

22 for discipline and responsibility and accountability within the MUP, and

23 that is P1016. The decree on discipline and responsibility regulated the

24 duties of MUP superiors to investigate and conduct preliminary proceedings

25 against subordinates who had breached the law. That is P1016, and the Law

1 on Internal Affairs which I cited just now is P1757 [sic].

2 In addition on the 24th of March, 1999, a decree on internal

3 affairs during the state of war was issued amending the disciplinary

4 responsibilities for MUP officials to some extent in order to take into

5 account the state of war. And this is P993. This decree also indicates

6 that the disciplinary system also existed during the state of war in 1999.

7 This latter decree strengthened the authority of MUP officials to detain

8 suspects, restrict their movement, and perform searches of persons and

9 property. And it made provisions in respect to offences including

10 exhibiting national, racial, or religious intolerance under Article 9 and

11 it simplified the disciplinary system by authorising the head of a sector

12 of the MUP or a person designated by him to discipline without resort to

13 the usual procedures.

14 So there was a structure in place, at least ostensibly, for the

15 prevention and punishment of the persecutory crimes committed against the

16 Kosovar Albanians.

17 As indicated before, General Lukic was informed about these crimes

18 and certainly would have known or would have been put on inquiry notice.

19 The issue as to prevention and punishment of crimes was discussed

20 regularly at MUP staff meetings or MUP meetings with internationals,

21 including the KVM, and I could refer the Court to P2544. Notwithstanding

22 this knowledge, this power and authority that he had, he failed to

23 undertake any or any adequate measures to prevent and punish offenders.

24 Ljubinko Cvetic said that during his tenure in Kosovo - and that is from

25 January 1997 to the end of April 1999 or to April 1999 - he did not know

1 of any cases where police officers were prosecuted for serious crimes

2 against ethnic Albanian people. And that is crimes like murder of Kosovar

3 Albanians, arson of Kosovar Albanian property, or forcible expulsion of

4 Kosovar Albanians from their homes. This Court is entitled to infer that

5 a chief of one of the seven SUPs in Kosovo would be aware if police

6 officers had been so charged or had been so investigated. He never heard

7 of any such investigations or prosecutions at the MUP staff meetings, and

8 this is at pages 8112 to 8113 of the transcript.

9 On the basis of information on relevant investigations and

10 prosecutions requested from the MUP, an OSCE report on the prosecution of

11 war crimes came to the conclusion that the MUP has largely investigated

12 crimes committed by KLA soldiers and only a few cases where potential

13 perpetrators were Serb -- Serbian police or security forces. According to

14 the OSCE, these few investigations conducted against Serbian police or

15 security forces were initiated only when and because the public learnt

16 about the crimes and the MUP had no choice but to conduct investigations.

17 That's P846.

18 This is a general observation made by the OSCE as a result of

19 information it received on request from the MUP. But this Court has

20 before it evidence of a particular situation from a former protected

21 witness who was involved in investigations of the refrigerator truck in

22 which there were bodies found. And it is clear from his evidence in

23 respect to the sequence or the development of that investigation that when

24 the bodies were originally found in the refrigerator truck by the MUP in

25 Kladovo, Serbia, in early April 1999, there was a huge cover-up by the

1 police and that cover-up cloaked the fact that these Albanian civilians or

2 the bodies of these Albanian civilians were found in the river for almost

3 a year until it became public when an intrepid newspaper reporter brought

4 it to the public attention and thereafter the responsibility to

5 investigate became irresistible. That is an example of what the OSCE is

6 discussing about the MUP's attitude in respect to investigations.

7 I don't know if this is a convenient time.

8 JUDGE BONOMY: Yes, it is convenient, and we will resume at five

9 minutes to 11.00.

10 --- Recess taken at 10.32 a.m.

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

12 JUDGE BONOMY: Mr. Stamp.

13 MR. STAMP: Thank you very much, Your Honour.

14 Your Honours, there are a couple matters which since we are

15 resuming from break I may raise. In the transcript at -- today's

16 transcript at page 2, line 6, it appears that I said -- referred to the

17 statement of General Vasiljevic, it's actually the notes of

18 General Vasiljevic and that's Exhibit 2592. And the reference 8873 is to

19 the transcript page number.

20 Also at page 11, line 8, the exhibit number I'm referring to is

21 Exhibit P1198 and not P1998. And at page 13, line 14, the exhibit number

22 referred to is P1115 and not P1150. And at page 25, line 2, the exhibit

23 number is P1737 and not 1757.

24 In addition, I had indicated that I would get the exhibit number

25 in respect to the list of missing persons from Kosovo, the OMP list and

1 that's Exhibit P2798 [Realtime transcript read in error "298"].

2 JUDGE BONOMY: Thank you.

3 MR. ACKERMAN: So we don't have to do this again, it's P2798, Your

4 Honour, not P298.

5 MR. STAMP: Thank you, sir.

6 I had submitted earlier in respect to the Legija group that

7 General Vasiljevic in his statement P2594, paragraph 30, refers to

8 Legija's unit and that is Milorad Ulemek, Legija, his unit involved in the

9 commission of crimes in 1998 -- 1999, I beg your pardon. Paragraph 30

10 refers to the commission of crimes in Kosovo as indicated by learned

11 counsel by another group known as Legija. However, paragraphs 31, 32, 33

12 discusses criminal activity and indiscipline by the JSO group under the

13 control of Milorad Ulemek, otherwise known as Legija.

14 So the reference to General Vasiljevic's statement for

15 indiscipline and criminal conduct of this group, this JSO group, is

16 paragraphs 31, 32, and 33 of his statement.

17 The Defence counsel for Mr. Lukic made several submissions in

18 respect to the Prosecution's evidence. He submitted in respect to the

19 7(3) responsibility, or the responsibility of General Lukic under

20 Article 7(3), that there is no evidence that Lukic had effective control

21 over the MUP units. Counsel says that the plain language meaning and

22 reading of the laws introduced into evidence does not support the claim of

23 superiority authority as to Sreten Lukic and in fact, neither does the

24 other evidence adduced. It is submitted in response, Your Honours, that

25 as head - and the evidence on that I have already outlined - as head of

1 the MUP staff, Lukic -- General Lukic exercised de jure and de facto

2 command over the MUP units including special units. He had the authority

3 to control and coordinate all MUP actions and operations in municipalities

4 throughout Kosovo.

5 I have already referred to the documents appointing him and the

6 documents setting out his area of responsibility. Exhibit P1251

7 specifically provides that the MUP -- the mandate of the MUP staff was to

8 plan, organise guide, and coordinate the work of the ministry's

9 organisational unit, and the work of units posted or attached to it during

10 their engagement on in the suppression of terrorism in the territory of

11 Kosovo.

12 So even those units that were seconded to Kosovo were within the

13 mandate of the MUP staff.

14 And even in his interview, General Lukic himself said in P948 at

15 pages 37 and 38, that the primary role of the MUP staff was to coordinate,

16 plan, and direct the organisation of the MUP units deployed in Kosovo. So

17 he accepted responsibility, or accepted that the MUP staff that he

18 commanded had responsibility to command and control these units.

19 And I've already referred to P1505 which again sets out the task

20 of the MUP staff.

21 Specific reference can be made and ought to be made, I submit, to

22 the evidence of Ljubinko Cvetic in this area. He said at 8075 of the

23 transcript in respect to the various units, the SAJ, the OPG, the PJP, the

24 JSO, who were sometimes sent from elsewhere in Serbia to come and engage

25 and manoeuvre in Kosovo and Metohija, he accepted that they would be given

1 directives by the MUP staff. He said: "Orders would be submitted to the

2 unit via the MUP staff in Pristina and the direct command of the units was

3 by the commander of the unit in question."

4 JUDGE BONOMY: Mr. Stamp, you don't need to go over things that

5 you've been over already with us today.

6 MR. STAMP: Very well, Your Honour. I will move very quickly

7 through these submissions.

8 The other submission was that the OPGs and the PJPs were attached

9 to the secretariats of the interior and commanded by the secretariat of

10 the interior chiefs, not by the MUP staff. Exhibits P1247 and P1249 were

11 cited in support of that submission. These documents are merely lists of

12 persons who are due payment of daily allowances and they show that the

13 SUPs did retain some amount of administrative management of these units;

14 however, again, the evidence of Cvetic was that the secretariats

15 themselves, for manoeuvres and operations, were directly under the MUP

16 headquarters or staff in Pristina. And the expanded MUP staff in Pristina

17 also included the seven SUPs, and that is also demonstrated by P1505.

18 The Defence also submitted that P1505 doesn't support the claim

19 that General Lukic had command over the RDB and that many witnesses,

20 including Cvetic, Byrnes, General DZ, Colonel Ciaglinski, Maisonneuve,

21 Colonel Phillips, et cetera testified that Gajic of the DB was not

22 General Lukic's assistant, but it was rather Colonel Mijatovic. It is

23 submitted that Exhibit 1505 establishes that the MUP staff was established

24 in June 1998 bringing the RDB and the RJB under their control and

25 coordination, or under the control and coordination of the MUP staff

1 headquarters in Pristina. So I respectfully would ask the Court to review

2 Exhibit P1505 in this regard. It clearly states that the expanded MUP

3 staff shall also include the chiefs of the secretariats for internal

4 affairs and branches of the RDB for the zone of Kosovo and Metohija. And

5 this was an order signed, as I indicated before, by the MUP Minister

6 Vlajko Stojiljkovic.

7 The Defence submission that as head of the MUP staff,

8 General Lukic had no role or authority to discipline MUP members or MUP

9 employees, it is respectfully submitted is not sustainable. There is

10 evidence that he had this power and authority, not only from the decrees

11 that I already referred to dealing with the structures that were in place,

12 but at transcript 8156 in response to a question from the Presiding Judge

13 Bonomy, Mr. Cvetic stated that General Lukic could take disciplinary

14 action against MUP members who committed serious crimes. And this -- this

15 is evidence but this is also a common-sense proposition and inference that

16 the Court could draw from the evidence that the chief of the MUP staff,

17 the police staff, even if he might not be able to get involved in internal

18 infractions of police officers, like uniforms or going to work late or

19 whatever, certainly must have disciplinary influence and impact when

20 offences like murder or arson, et cetera, of the police are being

21 considered. And at that page I just referred to 8156, the transcript

22 reflects that Judge Bonomy asked: "It may be that my question was not

23 properly translated to you. The question was: Assuming the chief of the

24 MUP staff in Pristina, that's Mr. Lukic, were to learn of conduct by MUP

25 officers which amounted to murder, what action would you expect him to

1 take in relation to these offences?"

2 And the witness answered: "He is to notify immediately the head

3 of his organisational unit, that is the chief of the SUP, from where the

4 policeman comes. He is to notify the chief of the public security

5 department."

6 So -- and it follows from his answer when we look at the other

7 evidence that these persons he is to notify also reported to him; he

8 controlled them, that he was more than or he had more than adequate powers

9 to impose discipline for serious crimes on MUP staff.

10 The Defence also submitted that there is no evidence that

11 General Lukic had knowledge of the crimes committed by his subordinates in

12 Kosovo. I have submitted that there were specific complaints made to him

13 and also the circumstances were such that it is inconceivable that the

14 chief of police, the chief of these operations in this area, would not

15 have known about these allegations that were known worldwide.

16 The other submission was that Lukic had no control over the

17 functioning of the judiciary, and therefore could not discipline or punish

18 his superiors. It is submitted that it is not a matter of control over

19 the judiciary; it is a matter of him taking effective steps to ensure that

20 there are appropriate investigations that persons alleged to have

21 committed serious offences are removed from situations where they may

22 commit such offences. And he could take these steps and he had, as I

23 already indicated - and I won't go through all of these decrees - he

24 already had the mechanism, the structure in place to take effective steps

25 if it was his intention to do so. I'll just add that P1736 is the FRY

1 Criminal Code and that code provides that the regular criminal law system,

2 the criminal justice system, also applied to members of the MUP if they

3 committed crimes.

4 The Defence for Mr. -- General Lukic also submitted that the

5 Joint Command is a body with no real power over the MUP. That is contrary

6 to the evidence of General Vasiljevic, General [sic] Cvetic, and even, as

7 I indicated earlier what General Lukic indicated in his interview or

8 inference that can be drawn from what he said in his interview at pages 35

9 and 36. I've already commented on the incorporation of the Skorpions, a

10 large group, into the MUP and submitted that their deployment and

11 redeployment after having committed such grave crimes as occurred at

12 Podujevo could not have occurred without General Lukic's knowledge.

13 It is respectfully submitted that the several submissions made in

14 respect to the evidence related to General Lukic are unsupported and that,

15 as I've indicated, the Prosecution has presented evidence on which a

16 reasonable Trial Chamber properly directed could act in respect to all the

17 heads of liability and all of the counts charged. With your leave,

18 Your Honours, I'd like to move on to make some general comments about

19 Article 7(3).

20 In respect to all of the accused, we have sought to refer the

21 Court to at least some of the evidence that establishes the several

22 elements of Article 7(3) as it relates to each individual accused. As

23 Mr. Hannis mentioned, three Trial Chambers have now adopted as the

24 practice of the Tribunal the interpretation of Rule 98 bis as amended in

25 2004, whereby the Trial Chamber need only to find that sufficient evidence

1 to sustain each count of the indictment and need not consider every mode

2 of liability alleged for each count. That is Martic, Mrksic cases, and we

3 said on the 3rd of May, it would apply in the last case in which a no-case

4 submission -- in which Rule 98 bis submission was dealt with, that's the

5 case of Dragomir Milosevic and it seems that the Defence in this case has

6 also accepted that that is the appropriate law and the appropriate

7 practice.

8 So in light of this, the submissions that I make in respect to the

9 general responsibility or that the accused -- each accused is responsible

10 under Article 7(3) of the Statute are necessary -- these submissions are

11 necessary only to extent that the Trial Chamber were, at this stage, to

12 disagree with the Prosecution that there is evidence that the

13 Trial Chamber could rely on under Article 7(1).

14 Article -- or the law in respect to Article 7(3) has been set out

15 in the Prosecution's pre-trial brief at -- or from paragraphs 367 forward

16 and I will not address very much in respect to the law.

17 Article 7(3) does not provide a superior with two alternative

18 options when the superior is engaged in discharging his obligations

19 according to international humanitarian law, but it contains two distinct

20 legal obligations: One, to prevent the commission of the offence; and

21 two, to punish the perpetrators. The duty to prevent arises from a

22 superior from the moment he acquires knowledge of or has reason to know

23 that a crime is being or about to be committed. He's not entitled to wait

24 and punish afterwards. And that is from the Strugar trial judgement at

25 page 37 -- at paragraph 373.

1 In this case, the Trial Chamber is entitled to find -- the

2 evidence before the Trial Chamber entitles it to find that, having regard

3 to the history of the crimes against the Kosovar Albanians in the period

4 leading up to the NATO bombing, the first and primary responsibility of

5 each accused was to prevent the crimes. Strict action could have been and

6 ought to have been taken to prevent what happened after the 23rd and the

7 24th of March, 1999, if there was no intention, shared intention, this

8 these crimes or these events should happen.

9 The accused patently failed to take these measures to put in place

10 specific and stringent measures, if necessary, to prevent the massacres

11 that they said -- or some of them said would occur. And this was despite

12 the fact that each of them, as we have, it is submitted, already

13 demonstrated knew of the pervasive and widespread crimes being committed

14 in 1998. Both military and civilian leaders may be held criminally liable

15 for the acts of their subordinates. The doctrine of command

16 responsibility is ultimately predicated upon the power of a superior to

17 control the acts of his subordinates, and what is required is effective

18 control in the sense of a material ability to prevent or punish criminal

19 conduct. The crucial question is not the civilian -- excuse me, status of

20 the accused but the degree of authority he could exercise over his

21 subordinates.

22 Thus, the concept of effective control for civilian superiors is

23 different to some degree, in that a civilian superior's sanctioning power

24 must be interpreted very broadly and I'm referring now to the Brdjanin

25 trial judgement at paragraph 276, where the observation was made that in

1 respect to the civilian superior sanctioning powers there must be a broad

2 interpretation. It was further said that it cannot be expected that

3 civilian superiors will have disciplinary power over their subordinates

4 equivalent to that of military superiors in an analogous command

5 position. For a finding that civilian superiors have effective control

6 over their subordinates, it suffices that civilian superiors through their

7 position in the hierarchy have the duty to report whenever crimes are

8 committed and that in light of their position the likelihood that those

9 reports will trigger an investigation or initiate a disciplinary or

10 criminal measures is extant.

11 The Court again recognises a situation where the law accords with

12 common sense there, probably with respect to many civilian superiors, will

13 not be a stream-lined situation for the exercise of disciplinary control;

14 however, many times the influence and authority of civilian superiors

15 extends to being able to initiate reports, to raise an alarm. And the

16 higher that civilian superior is, it is -- the alarm that can be raised is

17 raised in higher places can be raised in the very seat of government. And

18 if in raising that alarm and initiating the report and investigation and

19 following up on it, it is possible or there is a likelihood that

20 investigations and disciplinary criminal measures could result, then that

21 has to be considered in respect to civilian superiors.

22 So the material ability -- and I should indicate that that

23 position was also the position in the Aleksovski trial judgement at

24 paragraph 78. The material ability may be the ability to issue orders

25 requiring the competent authorities to take action. It might be able to

1 personally take disciplinary action if the superior has not the power to

2 sanction, it might be just being able to submit reports to competent

3 authorities to take appropriate measures, or to initiate or implement

4 effective investigations or to establish facts and to take active steps to

5 secure that perpetrators will be brought to justice.

6 A superior may only be held criminally responsible for taking such

7 measures that are within his powers, that is within his material

8 possibility, because we are not suggesting that a superior should be

9 obliged to perform the impossible. Effective control is more a matter of

10 evidence than of law. Any evaluation of the action taken by a superior to

11 determine whether his duty has been met is inextricably linked to the

12 facts of each particular situation. What constitutes necessary and

13 reasonable measures required of a commander is a matter not of evidence,

14 but of law. Thus, the categories of material ability are not closed and

15 ought to remain open to the reasonable adjudication of a trial chamber, as

16 command responsibility is the most effective method by which international

17 criminal law can enforce elementary humanitarian values.

18 Much of the analysis not only depends on what could be done but

19 the nature and seriousness of the alleged crimes. Thus, to give an

20 example, in the ICTR case of Musema, M-u-s-e-m-a, where mass murder,

21 genocide, was being considered, it was held that the director of a tea

22 factory had de facto authority over the tea factory employees who were

23 engaged in acts of genocide and used the resources and the -- well, the

24 resources including the facilities, resources, facilities, in the

25 commission of these crimes. The seriousness of a crime imposes on persons

1 who control subordinates in a greater duty to do whatever is possible. In

2 that case, it was held in the judgement at paragraph 880 that a

3 Trial Chamber finds:

4 "The Trial Chamber finds that it had been established beyond

5 reasonable doubt that Mr. Musema exercised de jure authority over

6 employees of the Gisovu tea factory while they were on tea factory

7 premises and while they were engaged in their professional duties as

8 employees of the tea factory, even if those duties were performed outside

9 the factory premises.

10 "The Chamber notes that Musema exercised legal and financial

11 control over these employees particularly through his power to appoint and

12 remove these employees from their position at tea factory. The Chamber

13 notes that Musema was in a position by virtue of these powers to take

14 reasonable measures such as removing or threatening to remove an

15 individual from his or her position in the tea factory if he or she was

16 identified as a perpetrator of crimes punishable under the Statute."

17 I give the example of the civilian in this situation to emphasise

18 that this category, it is something that should be left to the assessment

19 of a Trial Chamber, having heard all the evidence.

20 The formal designation as a commander or a superior not a

21 necessary prerequisite for superior responsibility. This consideration as

22 to whether or not somebody is formally designated a commander or superior

23 is particularly in the case concerning Mr. Sainovic. We know that he was

24 head of the group responsible for contact with the -- with the various

25 international bodies that operated in Kosovo and that he was a deputy

1 minister -- one of five deputy ministers of the FRY.

2 He was not formally designated commander of the MUP forces in

3 Kosovo or the defence, local defence forces, in Kosovo or the VJ in

4 Kosovo. However, the evidence of his conduct mainly but not exclusively,

5 from Generals -- from General Vasiljevic and Mr. Cvetic taken at its

6 highest is that he exercised de facto control and authority over the

7 commands of the forces of the FRY in Kosovo at the material time. I refer

8 back in particular to the citation or the extensive quotation I made from

9 the evidence of General Vasiljevic at the beginning of my address in

10 respect to Mr. Sainovic.

11 The Joint Command was a commanding body as well as a coordinating

12 organ and the evidence, it is submitted, makes it clear that Mr. Sainovic

13 effectively headed that body.

14 Superior/subordinate relationship based on a notion of control

15 within a hierarchy, or is based on the notion of control within a

16 hierarchy, but control can be exercised in a direct or indirect manner.

17 There is no requirement that the perpetrator must be in a direct chain of

18 command under the superior. I refer to the Celebici appeals judgement at

19 paragraph 251. Direct and indirect relationships within the hierarchy is

20 possible. Again, the Brdjanin trial judgement at page 276 accepted this.

21 Thus, Mr. Milutinovic -- or if Mr. Milutinovic or Mr. Sainovic in

22 their formal or de facto positions could make reports or initiate

23 investigations that could -- that had a likelihood of resulting in the

24 restraint or punishment of the direct perpetrators, they can be held

25 liable if they fail to do so, even if these direct perpetrators were not

1 in a direct chain of command below either of them. But in any case, in

2 addition to this, both Mr. Milutinovic and Mr. Sainovic exercised

3 effective control over the military and police generals that were involved

4 in actively furthering the JCE on the ground.

5 Having regard to this or the foregoing, it is respectfully

6 submitted, Your Honours, that prior to the period or prior to the 24th of

7 March, 1999, in accordance with his duty to prevent and after that day in

8 accordance with his duty to punish, the accused Mr. Milutinovic could have

9 exercised his substantial authority and influence as president of Serbia

10 to order the MUP and its senior members to report to him within 48 hours

11 on the allegations of abuses of Kosovar Albanian citizens by forces of the

12 FRY, to report to him on their investigations and prosecutions of the

13 perpetrators, and to report to him on any other appropriate measures to be

14 adopted. It is submitted that he also could have used his legal authority

15 as a member of the Supreme Defence Council to convene Supreme Defence

16 Council meetings to place on agenda issues re allegations of crimes

17 committed by the VJ, to put in place systems to bring offenders to

18 justice. In failing to do, or to do adequately in the circumstances any

19 of these things he is liable under Article 7(3) of the Rules.

20 Indeed, Your Honours, he had power and significant influence over

21 the careers of some of the alleged senior perpetrators, both MUP and the

22 VJ; instead, as has been seen, he appointed and promoted them.

23 It is submitted that Mr. Sainovic as de facto head of the Joint

24 Command had the responsibility as commanders of the VJ and MUP to take

25 effective steps to prevent or punish crimes including ordering

1 investigations and referring cases to military or civilian courts.

2 Mr. Sainovic was in a position to report effectively to the competent

3 authorities. We have seen that he was occasionally sent on fact-finding

4 missions to gain insight into the events in Kosovo.

5 He was able to submit reports to the SDC and other competent

6 authorities about allegations of crimes in Kosovo and he was able to make

7 recommendations as to their prevention and the punishment of the

8 perpetrators. In failing to exercise these powers to prevent or punish

9 the crimes, he's also liable under 7(3). Indeed, I refer back to P1000,

10 that is the minutes of, I think, the 5th Session of the SDC, in any case,

11 the minutes of an SDC meeting in the latter part of 1998, in which

12 Mr. Milutinovic was present when Mr. Sainovic reported to the SDC on

13 cooperation between the VJ and MUP among other security-related issues

14 concerning Kosovo. Both of them, it is clear from these exhibits, were in

15 a position to express persuasive opinions, at least, in the SDC either as

16 informant or decision-maker.

17 And in addition, we have the evidence of Mr. Cvetic already

18 discussed in respect to the several MUP meetings that Mr. Sainovic

19 attended in which he was able to give instructions to the leaders of the

20 MUP.

21 I'll touch on briefly, if I may, some of the items of evidence

22 that also establishes -- where it may well be said establishes intent to

23 commit these crimes but certainly establishes a failure to take

24 appropriate steps to prevent and punish these crimes.

25 There is evidence that the -- that VJ and MUP subordinates were

1 sent to Kosovo without proper training and education in the lawful

2 behaviour in armed conflicts. Volunteers were accepted without screening

3 and units known for their criminal propensity were sent to Kosovo. Again

4 I refer the Chamber to the evidence of Goran Stoparic. He is someone who

5 indicated that after the crime in Podujevo he was expecting punishment,

6 people to be fined or demoted, but that didn't happen. Vasiljevic's

7 testimony in his statement P2594 about Arkan's Tigers being part of

8 Radosavljevic's unit committing crimes in Kosovo discussed in a meeting

9 with Mr. Sainovic present. The evidence of insiders, VJ insiders, K54,

10 K82, K89, who said that they were sent into action in Kosovo with only a

11 couple months' training and no instructions on the law of war and

12 responsibility to civilians. Evidence of K79, a PJP member - that's a

13 policeman like Goran Stoparic - who also was not given any instructions,

14 when sent to Kosovo, on appropriate behaviour.

15 In respect to the VJ and the MUP, the evidence is that very few,

16 if any, serious investigations were done on crimes, serious crimes,

17 committed against Kosovar Albanians. In assessing this, the Tribunal

18 would, no doubt, have a look at the evidence as to the widespread and

19 gross nature of these crimes.

20 I've already referred to the report by the OSCE indicating that

21 even after the conflict there was a hesitancy to investigate the crimes

22 and investigations were only done when something became too public to

23 ignore. Exhibits P829 and 830 are -- P829 is a letter from the VJ to the

24 OSCE on investigations and prosecutions done, and it demonstrates

25 basically the same, little or nothing done. Exhibit P831 similarly is a

1 letter of the MUP to the OSCE, it demonstrates the same thing. There were

2 investigations, there was some work done, but in respect to the

3 investigations of these serious and gross offences against Kosovar

4 Albanians, very little. Similarly P845. Lakic Djorovic testified before

5 this Tribunal; his statement is P2671. He said that many state security

6 organs and military prosecutors even resided in the apartments of expelled

7 Kosovar Albanians. And some VJ representatives who stole cars of Kosovar

8 Albanians.

9 P953 was a document that was tendered in the Milosevic case, and

10 it is a report on the work of military judicial organs during the state of

11 war from 21st -- up to the 21st of June, 1999, and it shows that 88 per

12 cent of cases were related to acts committed against the VJ by its

13 members; only 12 per cent were related to what were described as other

14 crimes.

15 Similarly P954, a similar report. An analysis of this report and

16 the previous one shows there are various serious crimes against Kosovar

17 Albanians are investigated. They cover mainly property crimes and

18 disciplinary crimes against VJ members.

19 JUDGE BONOMY: If you look at the transcript your reference to

20 P953 shows that 88 per cent of cases were related to acts committed by the

21 VJ. Is that what you said?

22 MR. STAMP: Committed by VJ members against other VJ members or

23 committed against the VJ as an institution.

24 JUDGE BONOMY: All right. Thank you.

25 MR. O'SULLIVAN: Your Honour, this may need double-checking, but

1 our records show that P953 and P954 are not admitted into evidence.

2 [Prosecution counsel confer]

3 [Trial Chamber and legal officer confer]

4 MR. STAMP: Your Honours, I believe that my friend is right. What

5 I'm trying to find out is whether or not there is an outstanding

6 application in respect to them.

7 JUDGE BONOMY: Neither is admitted according to our records,

8 Mr. Stamp, and as far as we are concerned all applications for the

9 admission of evidence have been disposed of.

10 MR. STAMP: I withdraw any reference to those two documents.

11 JUDGE BONOMY: Thank you.

12 MR. STAMP: According to Lakic Djorovic, when crimes became known,

13 security organs of the VJ sometimes undertook steps to dispose of the

14 crimes before they could be prosecuted. Military prosecutors who wanted

15 to prosecute army members were sabotaged and threatened. And this is in

16 his statement P2671 at paragraphs 45, paragraph 6, paragraph 29, paragraph

17 31 and 38. Even after the war, he himself was continually threatened and

18 put under pressure because he tried to prosecute, as a military

19 prosecutor, crimes that he became aware of in Kosovo, P2671, paragraphs 1,

20 4, and 57.

21 Similarly, the MUP investigated very few MUP members for the

22 serious crimes. I have already referred to the documents.

23 Ljubinko Cvetic, the -- was head of a SUP, as I indicated, said that as

24 head of the SUP he did not know of any serious -- of any police officer,

25 certainly no serious [sic] police officer being charged for any serious

1 offence against Kosovar Albanians.

2 Your Honours had the evidence about Mr. Stevanovic's notebook and

3 the meeting with the MUP and Mr. Milosevic and Mr. Sainovic in which it is

4 indicated that Mr. Milosevic spoke about mopping up the terrain being the

5 most important and that traces along roads are to be removed, no corpse,

6 no crime.

7 The indicators, especially the 828 bodies in Serbia, and the

8 circumstances after such long delay in which these investigations started

9 indicate that instead of investigating, the prevailing intention was to

10 cover up.

11 In respect to knowledge required under Article 7(3), the

12 Prosecutor's pre-trial brief covers the law in respect to knowledge.

13 There -- the requirement is either actual knowledge or constructive

14 knowledge or that the accused knew of the offences or ought -- or had

15 reason to know that the act was about to be committed or had been

16 committed. I certainly will not trouble the Court with the law in respect

17 to knowledge. But I may, with respect, refer the Court to the indicia

18 given by the United Nations Commission of Experts in its final report on

19 armed conflict in the former Yugoslavia, which was referred to in the

20 Celebici trial judgement at paragraph 386. In that judgement the Court

21 said that in determining whether a superior in fact must have possessed

22 the required knowledge, the Trial Chamber may consider the indicia stated

23 by the commission of experts.

24 So the -- a Trial Chamber may impute actual knowledge from

25 circumstantial evidence and the indicia that the commission of experts

1 said -- used in their report, affirmed in Celebici, included the number of

2 illegal acts, the type of illegal acts, the scope of illegal acts, the

3 time during which the illegal acts occurred, the number and type of troops

4 involved, the logistics involved, the geographic location of the acts, the

5 widespread occurrence of the acts, the tactical tempo of operations, modus

6 operandi of similar illegal acts, the officers and the staff involved.

7 It is respectfully submitted that applying or considering these

8 matters, this Court is entitled to infer that each accused must have had

9 actual knowledge about the crimes alleged in the indictment.

10 In the alternative, each of the accused was possessed of

11 sufficiently alarming information, to use the expression adopted in the

12 Krnojelac Appeals Chamber in paragraph 154, which put him on notice of

13 possible unlawful acts by subordinates and therefore each accused had

14 reason to know that these crimes would be committed or had been committed.

15 Exhibits -- Your Honours, I should have cited Exhibits 1912 to

16 19 -- sorry, 1912 -- P1912, P1939, P1940, P1941, which are reports from

17 the 3rd Army command organ for legal affairs on the work of the military

18 prosecutions office between the 12th of April and the 30th of May. These

19 documents also show that investigations and prosecutions were limited to

20 minor offences, particularly violations of military discipline.

21 I postpone referring to them to check if they were in fact in

22 evidence.

23 And while I'm on this point, Your Honours, Exhibits 953 and 954,

24 which I referred to and which my friend Mr. O'Sullivan indicated that the

25 records show that they were not in evidence. I agree that the record

1 shows they were not in evidence, but I think that there may have been an

2 error in the official evidence register. At page 11509 of the transcript

3 of the 12th of March, 2007, the -- this exchange took place at the end of

4 the evidence of Mr. Djorovic, or during the evidence of Mr. Djorovic.

5 Question by Presiding Judge Bonomy: "Now, in your statement in

6 paragraph 62 and the following you referred to a number of exhibits or a

7 number of documents that were shown to you when you gave the statement,

8 documents that were received in another case in the Tribunal through a

9 Defence witness for Mr. Milosevic."

10 To which my learned colleague, Ms. Moulin, applied: "Your

11 Honours, I do not intend to go with the witness through these documents

12 because I think he has in his written statement commented on them. I

13 would just like to give you the cross-reference to the exhibit number:

14 The document in paragraph 52 of the statement is Exhibit 593; the document

15 referred to in paragraph 53 of his statement is P2826; the document

16 referred to in paragraph 54 of his statement is Exhibit P2825; and the

17 document referred to in paragraph 55 and 56 is Exhibit P954.

18 President Bonomy said: "Thank you."

19 I believe from that that if the documents were not officially

20 entered into the evidence register, it is due to error, and I would apply

21 now that that matter be reviewed. And if the documents properly ought to

22 be in evidence that they be so received and that the Tribunal is therefore

23 entitled to rely upon them.

24 Before I --

25 JUDGE BONOMY: Just a moment, Mr. Stamp.

1 [Trial Chamber and legal officer confer]

2 [Prosecution counsel confer]

3 JUDGE BONOMY: What you say, Mr. Stamp, does indicate that these

4 have, in fact, been admitted and the record of exhibits admitted

5 erroneously excludes them. If that causes any prejudice to the Defence,

6 we'll hear any further submissions they have to make about the impact of

7 these documents, but following the practice that we have consistently

8 applied throughout the trial they were admitted.

9 MR. STAMP: Thank you very much, Your Honour.

10 JUDGE BONOMY: Yeah.

11 MR. STAMP: Your Honours, before I close, there are some matters

12 which I wish to make the Prosecution's position clear about. During

13 submissions on the interviews of each accused --

14 JUDGE CHOWHAN: I apologise interfering. Mr. Stamp, I just would

15 request you to help me understand a proposition -- a position.

16 MR. STAMP: Yes, Your Honour.

17 JUDGE CHOWHAN: You see, invariably in the constitutions of the

18 world there is a clause given which is an article given which speaks of

19 the rules which are to be made under the constitution. As a subordinate

20 legislation, for purposes of running the government and for running

21 departments inter-se and that is followed by other subordinate departments

22 as well. So they lay down what will be the relationship between one

23 department and its subordinates and the other and so on and so forth.

24 Now, I was wondering if you have knowledge of any such rules of business

25 as these are usually called in respect of this country we are dealing

1 with; and if you have, can you kindly supply us with a copy because that

2 would give a more clearer picture of how one has to behave and how one has

3 to conduct relationship as these emerge inter-se the various departments,

4 the groups, the branches, and so on. But if you come to the conclusion

5 that there is none, please also let us know. That will be quite an

6 unusual thing. Thank you.

7 MR. STAMP: Thank you, Your Honour, for the opportunity.

8 [Trial Chamber confers]

9 JUDGE BONOMY: Judge Chowhan has raised a matter which requires

10 debate by the Bench, so we will have to adjourn to deal with that. We're

11 approaching the break in any event, and we will resume at quarter to 1.00.

12 --- Recess taken at 12.13 p.m.

13 --- On resuming at 12.51 p.m.

14 JUDGE BONOMY: We're grateful to the Defence, I think Mr. Zecevic

15 in particular, who has provided reference to some material which deals

16 with the point raised by Judge Chowhan and we of course have had regard to

17 other documents already in the process which supplement that and deal with

18 the matter. So we are now satisfied that that has been dealt with,

19 Mr. Stamp, and we can hear the balance of your submission.

20 MR. STAMP: Thank you, Your Honours.

21 I would like to just cover a few miscellaneous matters before I

22 close, Your Honours. An issue arose as to what use the Court ought to

23 make of the statements made by each accused in respect to the other

24 accused. At page -- at paragraph 22 of the Prosecution's filing on the

25 18th of August, 2006, in which we responded -- or replied to the Defence

1 response to application to tender the statements of the accused, the

2 Prosecution set out its position and we wish to make it clear that we do

3 not resile from it or seek to renege upon this.

4 And at paragraph 22 we state that: "The Prosecution clarifies its

5 motion to indicate that the statements are to be used in their entirety as

6 evidence against the proponent of the statement and against the co-accused

7 except portions that address the acts and conduct of mental state of other

8 accused."

9 The second matter relates to a statement I made on Friday in

10 respect to the evidence of Ambassador Petritsch in which I stated that the

11 ambassador could not recall whether there were two statements made by two

12 persons about a massacre of Albanians or whether there was one statement

13 made by either Mr. Milutinovic or Mr. Stambuk. That is not correct. The

14 ambassador did state on more than one occasion that there were two

15 statements. He did so in his direct examination at transcript 10637 in

16 which an answer to the President of the Chamber, Judge Bonomy.

17 "Q. Well, are these -- do you think these are two separate

18 occasions?

19 "A. That was -- there were, to my recollection, two separate

20 occasions."

21 And further on in cross-examination at 10841 he said:

22 "Clearly at the time when I was interviewed by the ICTY obviously

23 this one example came to my mind and not Mr. Milutinovic's example. Once

24 I re-read the dispatch I was reminded that the same had happened also in a

25 conversation with Mr. Milutinovic."

1 And he also said it again at 1078 -- or, sorry, at 10879. I had

2 referred the Court to the decision in the Simic case, the events which --

3 they were the events at Bosanski Samac. I should note that the Appeals

4 Chamber in that case dismissed the conviction of Simic under the joint

5 criminal enterprise; however, this -- right, dismissed the conviction or

6 set aside the conviction, I should say, of Simic on the joint criminal

7 enterprise. This decision, to set aside the conviction, was based on the

8 technical ground that there was insufficient notice in the indictment in

9 respect to the joint criminal enterprise. So that decision does not

10 derogate from the Appeals Court finding that the Trial Chamber was

11 entitled to make the inferences about Simic's intent that I submitted upon

12 and which was the basis for his conviction on other grounds.

13 And finally in respect to Mr. Milutinovic, I have been reminded to

14 add, in respect to de facto authority - and this is in respect to both

15 Mr. Milutinovic and Mr. Sainovic - that they were both members of the Main

16 Board of the SPS, the Socialist Party of Serbia, and that can be seen in

17 P1012, P1012, and they were both present at the meeting of the 10th of

18 June, 1998, when a coordination body to deal with the situation in Kosovo

19 was set up by Mr. Milutinovic -- Mr. Milosevic. Milomir Minic was to

20 become head of that body and Dusan Matkovic and Zoran Andjelkovic members,

21 and that is from pages 79 forward of that same exhibit I just referred to.

22 This body later evolved to become the Joint Command, and as my colleague

23 Mr. Hannis indicated in respect to P1317 which is an RFA response from the

24 Serbian authorities, the Joint Command was created without a legal basis.

25 From this it is submitted that the members of the Joint Command, including

1 Mr. Milutinovic -- sorry, the members of the joint criminal enterprise,

2 including Mr. Milutinovic, used a system of parallel information and

3 decision-making chains, the SPS in this case, to further their criminal

4 aims. And Exhibit P2828 is an example of this. This is a letter sent by

5 Vojislav Zivkovic to Mr. Milutinovic. The letter was not just expressing

6 concern of -- of a local low-level Serb politician, as suggested by

7 Mr. O'Sullivan, but it also asked for Serbs to be armed, for local Serbs

8 to be armed and to be organised into formations.

9 Exhibit P0 -- sorry, P1012 shows that Mr. Zivkovic was also a

10 member of the SPS Main Board. So this is a situation of the Joint Command

11 being created informally and persons, local politicians, Zivkovic, who was

12 president of the SPS Kosovo Provincial Board could also make informal

13 requests to the leadership, which as the evidence indicates were

14 eventually carried out.

15 Those, may it please you, Mr. President, Your Honours, are the

16 submissions on behalf of the Prosecution in answer to the submission made

17 by learned counsel for the Defence under Rule 98 bis.

18 JUDGE BONOMY: Is that the only specific decision of the SPS that

19 you rely on? I mean in the case as a whole, have you made earlier

20 submissions about --

21 MR. STAMP: No, no, that is the one we rely on.

22 JUDGE BONOMY: Thank you.

23 MR. STAMP: On behalf of Mr. Hannis, I wish to thank the Court for

24 the opportunity to respond to the submissions made by learned counsel on

25 the other side. May it please Your Honours.

1 JUDGE BONOMY: Thank you, Mr. Stamp.

2 Now, Mr. O'Sullivan, you indicated you may wish to make submission

3 about the use to which the statement of one accused may be made in the

4 case against another accused. Do you have anything further to say on

5 that?

6 MR. O'SULLIVAN: Well, if I've understood my friend correctly he

7 seems to be withdrawing that position.

8 JUDGE BONOMY: He's taking a position that was set out in the

9 response -- the reply to your response seeking -- when the Prosecution

10 sought to have these documents admitted.

11 MR. O'SULLIVAN: Correct. We had lodged our objection there.

12 One final point which may be another point for verification. In

13 Friday's transcript, I'm referring to page 12695, line 22, submissions

14 were made in respect to Exhibit P508, and our records again show that P508

15 is not admitted into evidence. Those are submissions made in respect to

16 Mr. Milutinovic.

17 [Trial Chamber and registrar confer]

18 JUDGE BONOMY: I gather that was used in the course of evidence on

19 the 4th of April, Mr. O'Sullivan.

20 MR. O'SULLIVAN: The 4th of May.

21 JUDGE BONOMY: Sorry?

22 MR. O'SULLIVAN: 4th of May.

23 JUDGE BONOMY: The 4th of April -- 4th of May?

24 MR. O'SULLIVAN: Well, last Friday, that's when the submissions

25 were made by counsel.

1 JUDGE BONOMY: No. The document to which you're referring was

2 part of the evidence on the 4th of April.

3 MR. O'SULLIVAN: No, Your Honour, it wasn't. It's not in the

4 transcript, it's never been tendered. There's no reference to P508.

5 [Trial Chamber and registrar confer]

6 JUDGE BONOMY: One thing everyone can rest assured about is that

7 every exhibit to which reference has been made in these submissions will

8 be checked by the Trial Chamber before the decision on these motions is

9 issued. If, however - and it's perhaps inevitable in view of the volume

10 of material here - if something comes to light indicating the possibility

11 that either an exhibit which was not, in fact, admitted may mistakenly be

12 referred to or the opposite, that one properly admitted might be

13 overlooked, then parties should, by e-mail, address that issue on notice

14 to the other side by directing the attention of the Trial Chamber to that

15 possibility.

16 Now, in light of these comments, are there any other matters that

17 Defence counsel wish to raise?

18 Mr. Ivetic.

19 MR. IVETIC: Your Honour, just to finish up on the matter that I

20 had raised during Mr. Stamp's submissions, there was a portion of the

21 Vasiljevic statement that was referred to and then the conclusions

22 therefrom were referred to multiple times today by Mr. Stamp beginning at

23 transcript page 2, lines 7 through 14 today, dealing with the former

24 Skorpion members who were part of the reserve SAJ elements, stating that

25 they had committed additional crimes after being redeployed in Gnjilane.

1 I would like to point out on January 23rd and 24th, General Vasiljevic

2 negated that portion of his statement first at page 9004, line 23, all the

3 way through transcript page 9005, line 12, wherein he stated he knew of no

4 crimes committed by the SAJ reserve elements upon their deployment after

5 Podujevo. And then in re-direct from questioning by Mr. Hannis who

6 specifically asked about the Gnjilane incident at transcript page 9107,

7 lines 1 through 17, stating that this was not an incident tied to either

8 the SAJ and the Skorpions or any MUP unit.

9 And then that's basically the thrust of the one correction I had.

10 There were two other matters that I think will be self-evident namely that

11 the Goran Stoparic exhibit P2224 is actually devoid to any reference to

12 Lukic or the MUP staff. So Mr. Stamp's submission on that regard were

13 incorrect. And then also the Vasiljevic statement at paragraph 31, 32,

14 and 33 referenced at transcript page 28, lines 16 through 18, although

15 those paragraphs do identify the JSO and delineate the chain of command of

16 the JSO, there is again no reference to Lukic or the staff. And

17 importantly there is no reference to any crimes, as was represented by

18 Mr. Stamp in his submissions. Those are just -- the first is the most

19 important one because I don't think that would necessarily have been

20 caught since the statement says one thing but the witness when he came

21 here modified that somewhat. So I wanted to bring that to Your Honours'

22 attention so it's easier to locate these things when you are preparing

23 your decision. Thank you.

24 JUDGE BONOMY: Thank you, Mr. Ivetic.

25 Mr. Petrovic.

1 MR. PETROVIC: [Interpretation] Your Honours, of course that I

2 don't want to enter a polemic with my learned friend Mr. Stamp, I just

3 want to indicate a few situations where, quite simply, what he read out to

4 you is simply not written. On 12704, page 12704, from Friday, speaking of

5 P1468, my colleague Mr. Stamp said that this document shows that Sainovic

6 attended 60 meetings as the person in charge; however, there is no

7 reference to any such thing on a single page of this document. Please

8 look it up.

9 Also 12701, another page reference from Friday. I quote: "P2594

10 is the Vasiljevic statement, paragraphs 78 to 82," again he is quoting it

11 in the context of this evidence that Sainovic was at the head of the Joint

12 Command. However, in the mentioned paragraphs there is no reference to

13 this. It was stated that he sat at the head of the table but it -- there

14 is no reference to Sainovic being at the head of the Joint Command.

15 Also, Your Honours, today on page 2, line 19 of the transcript,

16 what is analysed is a Prosecution Exhibit 2594, Vasiljevic again.

17 Reference is made to the system of information Sainovic established in

18 relation to the army and the MUP. However, I did not find that anywhere

19 in this document. Also, when speaking of Mr. Lukic and quoting P298 --

20 2948, this is page -- line 14 today and he also says that Sainovic was at

21 the head of the Joint Command. Your Honours, if you simply look at these

22 pages of these documents, there is no reference to that, there is no

23 mention of that.

24 Finally, on page 44, line 24, today, when speaking of Stevanovic's

25 notebook and meetings that were allegedly attended by Sainovic, according

1 to that notebook, 8828 is the transcript page reference, Vasiljevic

2 decidedly stated that he was not at that meeting, that he did not know

3 anything about this, everything he said he is saying on the basis of the

4 papers shown to him by the OTP when he came to this Tribunal. Thank you,

5 Your Honours, and I believe this will be of assistance when you make your

6 decision. Thank you.

7 Your Honour, I just want to say page 56, line 21, P948 is the

8 reference here not 2948, as is in the transcript now. Thank you.

9 JUDGE BONOMY: Thank you, Mr. Petrovic.

10 [Trial Chamber and registrar confer]

11 JUDGE BONOMY: We would like to give an indication this afternoon

12 of when we will issue our determination on this. We'll need to adjourn to

13 consider that and we'll resume at 20 minutes to, which will simply be for

14 the purpose of intimating the date when the decision will be issued.

15 --- Break taken at 1.15 p.m.

16 --- On resuming at 1.43 p.m.

17 JUDGE BONOMY: The Trial Chamber will give its decision on the

18 afternoon of the 18th of May, that's a week on Friday, at 2.15.

19 We're now adjourned until then.

20 --- Whereupon the hearing adjourned at 1.43 p.m.,

21 to be reconvened on Friday, the 18th day of

22 May 2007, at 2.15 p.m.

23

24

25