Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11147

1 Thursday, 8 May 2008

2 [Open session]

3 [Prosecution Rebuttal]

4 [The accused entered court]

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

6 JUDGE PARKER: Good morning.

7 We continue now with the final stages of the closing submissions

8 of all parties, as they respond to what each has said in the last two

9 days.

10 Mr. Saxon.

11 MR. SAXON: Thank you, Your Honours. Very briefly, just one

12 administrative matter, on Tuesday afternoon, Jesenka Residovic, the very

13 competent case manager of the Boskoski Defence team, alerted the

14 Prosecution to a point that perhaps needs some clarification, and it is

15 simply this: That when myself and Ms. Valabhji referred to

16 Exhibit 3P00379, on Tuesday, that it would be more precise to refer to

17 the exhibits that we mentioned, for example, as 379.01 which was the

18 Official Note of Mr. Tapuskovic, as well as 379.04. You will find this

19 references at pages 11.015 of the transcript, as well as 11.004 and

20 11.005 of the transcript. It would also be more precise, Your Honours,

21 to refer to Exhibit P96.1, rather than P96 which was the term used by the

22 Prosecution on Tuesday.

23 THE INTERPRETER: The interpreters wish to point out that the

24 sound we receive is very poor, so we kindly ask that the user keyboards

25 is restricted in the courtroom.

Page 11148

1 JUDGE PARKER: Mr. Saxon, could I mention that there is

2 difficulty hearing you, partly because the microphone appears to be a

3 long way from where you are standing, and also because there was a great

4 deal of other activity in the courtroom at the same time. It's the use

5 of the remote lectern which is aggravating the first of those problems

6 I'm not suggesting that you cease it, but you may need to pitch your

7 voice a little higher if you continue to use the lectern.

8 MR. SAXON: Thank you, Your Honour.

9 Your Honours, at pages 11.065 to 11.066, my colleague

10 Mr. Mettraux referred you yesterday to the Trial Chamber judgement and

11 the Appeals Chamber judgement in the Ntagurera case from the ICTR as

12 support for the argument that Mr. Boskoski did not have effective control

13 over the perpetrators charged in the indictment in these proceedings.

14 But a careful reading of the Ntagurera judgements reveals that the

15 circumstances of Mr. Boskoski in this case were dramatically different

16 from the circumstances of the accused Bagambiki, the subject of the

17 Ntagurera case.

18 Mr. Bagambiki was a civilian prefect, an administrator of an area

19 in Rwanda during the tragedy that occurred there in 1994. The

20 perpetrators in that case, however, were gendarmerie, members of the

21 Rwandan government's Ministry of Defence. Mr. Bagambiki possessed no

22 legal authority or de facto authority over the gendarmerie, and it is for

23 that reason that the trial judgement and the Appeals Chamber judgement

24 found that Mr. Bagambiki did not exercise effective control over the

25 perpetrators of the crimes in that case and found that no

Page 11149

1 superior/subordinate relationship existed between the accused and the

2 perpetrators.

3 You'll fine this at paragraphs 633 to 639 of the Ntagurera trial

4 judgement, and paragraphs 242 to 347 of the appeals judgement.

5 In this case, Your Honours, the evidence demonstrates that

6 Mr. Boskoski was the highest authority in the Ministry of Internal

7 Affairs during 2001 and 2002. The evidence demonstrates that he

8 exercised both de jure and de facto effective control over the regular

9 and reserve police officers who perpetrated the crimes committed in the

10 indictment, including the ability to punish them.

11 Your Honours, my colleagues submit that there is no evidence to

12 suggest that Zoran Krstevski, the advisor to Minister Boskoski in 2001,

13 was present at OVR Cair on the 10th of August, 2001, nor evidence

14 suggesting that he was an advisor at that time to the minister. But,

15 Your Honours, the testimony on cross-examination of Defence expert

16 witness, Professor Slagjana Taseva, corroborates M-052's testimony about

17 the presence of Mr. Boskoski's advisor, Zoran Krstevski, with

18 Mr. Tarculovski at OVR Cair on Friday afternoon, the 10th of August.

19 Professor Taseva explained that an individual could advise the Macedonian

20 government ministries without being a formal employee of that ministry.

21 This at pages 9.787 to 9.790 of the transcript.

22 My colleague Mr. Mettraux, at page 11,070, and my colleague

23 Mr. Apostolski, at page 11.114, argued yesterday that no evidence exists

24 that Mr. Tarculovski and Mr. Boskoski were together at Brace's house on

25 the 12th of August. But a careful reading of the testimony of witness

Page 11150

1 M-037, at pages 873 to 876, reveals that his evidence was that

2 Mr. Tarculovski and Mr. Boskoski were present together at Brace's house

3 on that Sunday afternoon.

4 Starting at page 873, during the re-direct exam of Witness M-037,

5 I read to the witness paragraph 14 of an investigator's note prepared by

6 the Office of the Prosecutor, and I said to the witness: "And let me

7 say, witness, as we discuss paragraph 14, if you see something that is

8 not correct there, please tell us, because you're here to tell the

9 truth."

10 Then I said: "Let's turn to paragraph 14, please. During

11 cross-examination, my colleague asked you about the presence of

12 Mr. Boskoski near the Chinese wall, and what he understood or what he did

13 not understand, what he was doing there.

14 Then there was an objection from Ms. Residovic, which was

15 overruled, and then I continued.

16 At the bottom of page 874: "You see there under paragraph 14, in

17 the English version, there's a letter "A" which stands for "answer," your

18 answer.

19 "And you say: 'The minister was there.'

20 "And up above the question" - this is myself continuing - "And up

21 above the question was related to a conversation between Ljube Boskoski

22 and Johan Tarculovski. You continue your answer.

23 "You say, after you say the minister was there, he was interested

24 in the situation. 'I think he was speaking to the police commander Ljube

25 Krstevski. Johan was aside. I assume Ljube Krstevski told Ljube

Page 11151

1 Boskoski, told him about some arms that they have found with some

2 terrorists. I assume that the minister asked Ljube Krstevski to see the

3 weapons and the minister came and saw the weapons.'"

4 Then I continued: "In your answer to the next question, after

5 the investigator asked about why you used the term 'discretion' in a

6 prior interview with the Office of the Prosecutor, you say: 'Johan was

7 showing or pointing to the weapons,' and then, 'Johan was all the time

8 standing aside. Ljube Krstevski and Ljube Boskoski were speaking, and

9 Ljube Boskoski was asking for some explanation for the action.'"

10 Then I asked: "Could you tell us, please, whether Ljube Boskoski

11 got such an explanation at that time?"

12 Answer from M-037: "From whom?

13 Question: Well at the moment from Ljube Krstevski.

14 Answer: When they were by the Hermeline.

15 Question: Yes.

16 Answer: I assume he got an answer during -- if he was able to

17 get an answer during the ten seconds, but I will stress again, I think it

18 was Ljube Krstevski. I'm not sure who that was."

19 The only comment that M-037 wanted to make was to explain his

20 uncertainty, whether Mr. Krstevski was present at that moment. He

21 expressed no uncertainty about the presence of Mr. Tarculovski.

22 It's also important on this same topic, Your Honour, to review

23 the testimony of Mr. Boskoski's body-guard in 2001, Blagoja Jakovoski,

24 about the presence of Mr. Tarculovski and Mr. Boskoski together at

25 Brace's house in the afternoon of 12th August. As you will recall,

Page 11152

1 Mr. Jakovoski accompanied Mr. Boskoski to Brace's house on that day.

2 If I could direct your attention to page 3925 of the transcript,

3 the colloquy the between colloquy myself and Mr. Jakovoski was the

4 following: "Okay. Can you recall ..." -- Actually, I will start earlier

5 than that, at line 1:

6 "In 2001, where did the man known as Bucuk work, Bucuk?

7 Answer: In the Kometa agency.

8 Question: Okay. Can you recall the names of other persons who

9 also worked or were associated with the Kometa agency in 2001?

10 Answer: I cannot recall at that time. It was a long time ago.

11 Question: Would you take a look at paragraph 24 again."

12 This was paragraph 24 of the prior statement given by

13 Mr. Jakovoski to the Office of the Prosecutor.

14 It says: "Being asked who else I know from Kometa which were

15 present in Ljuboten, I can name Bucuk Jovanovski; Johan Tarculovski; Sasa

16 the one who was wounded; the brother of the wounded, Vlado Janevski,

17 former department chief of the Kometa. These ones I can identify."

18 Then I asked: "Does that help refresh your memory, inspector?"

19 Mr. Jakovoski replied: "Yes. But I cannot remember now who this

20 Vladko [sic] is and Sasa is. I have not seen them for seven years at

21 least.

22 Question: But at the time when you made this statement, this

23 information was correct to the best of your knowledge?

24 Answer: I cannot recall."

25 Again, Your Honours, the only point that Mr. Jakovoski wanted to

Page 11153

1 clarify was his lack of recollection regarding who Vlado Janevski and

2 Sasa were; no attempt to clarify information related to the presence of

3 Mr. Tarculovski.

4 I'd like to turn the subject of Mr. Boskoski's knowledge of

5 crimes committed at police stations and other cruel treatment locations.

6 First of all, contrary to the submissions of my colleague yesterday, at

7 page 11.075 of the transcript, the Prosecution's final brief makes

8 submissions about Mr. Boskoski's effective control over police officers

9 at police stations and other cruel treatment sites described in the

10 indictment.

11 I would refer the Chamber to paragraphs 269, 274 through 286, and

12 340 of the Prosecution's final brief.

13 Your Honours, the only reasonable inference to be drawn from the

14 evidence is that beginning in August 2001, after he established his sham

15 investigative commission, Mr. Boskoski was, or at least should have been,

16 aware that the police had subjected the detained residents from Ljuboten

17 to cruel treatment at various police stations around Ljuboten.

18 Risto Galevski, a member of the commission established by

19 Minister Boskoski, was asked during his testimony whether the commission

20 was aware of these allegations of cruel treatment in police stations in

21 Skopje, or had them as part of their mandate. Mr. Galevski replied that

22 he had insisted that his subordinates present him with such information,

23 if indeed, they hadn't.

24 This at page 3588 of the transcript.

25 Mr. Galevski would not have made such a request unless he had

Page 11154

1 reason and information to do so. Clearly, he was on notice that there

2 may have been instances of cruel treatment in police stations around

3 Ljuboten. The evidence of Mr. Galevski was that he and Goran Mitevski

4 discussed the work of their commission on several occasions with Minister

5 Boskoski.

6 Furthermore, the information Mr. Boskoski had received prior to

7 and immediately after the events in Ljuboten would have given him a

8 heightened awareness of the likelihood that the detainees from Ljuboten

9 might well be mistreated in custody.

10 Exhibit P328 is a press release from Human Rights Watch, dated

11 31st of May, 2001. A press release that was widely distributed that

12 reported on beatings and torture of ethnic Albanian detainees in police

13 stations in Kumanovo and Skopje. Peter Bouckaert testified that this

14 press release received extensive press coverage in Macedonia.

15 Exhibit P361 is another widely circulated Human Rights Watch

16 report, calling on the government of Macedonia to address violence

17 against ethnic Albanians in police stations and citing a case of an

18 ethnic Albanian beaten to death by the police on 13 August in the Beka 1

19 police station. This report from Human Rights Watch was issued on the

20 22nd of August, 2001.

21 These reports gave Minister Boskoski notice of the likelihood of

22 violence against the detainees from Ljuboten in the various police

23 stations in which they were held.

24 Furthermore, Exhibit P352, the Human Rights Watch report on the

25 Ljuboten events, specifically referred to cruel treatment of detainees in

Page 11155

1 Cair, Kisela Voda, and Karpos police stations. This would certainly have

2 informed Minister Boskoski of the need to investigate the treatment of

3 Ljuboten detainees in all the police stations in which they were held.

4 Your Honours, my colleague's reliance yesterday on the Halilovic

5 appeals judgement, at 11.077 to 11.078 of the transcript, and the

6 von Leeb case, at 11.709, are also misplaced. These two cases deal with

7 accused who lacked executive authority over the perpetrators of crimes.

8 As I have mentioned already today, the circumstances of Mr. Boskoski in

9 2001, his degree of power, authority, and responsibility over the

10 perpetrators of the crimes charged in this indictment were extensive.

11 Mr. Mettraux referred you yesterday to the Kvocka judgement, page

12 11074 of the transcript, as support for his submission that Mr. Boskoski

13 had no effective control over the perpetrators of the crimes. The

14 important distinction, Your Honour, between Miroslav Kvocka at the

15 Omarska death camp in Prijedor in 1992 and Mr. Boskoski in August 2001

16 was that Mr. Boskoski had the material ability to punish the perpetrators

17 of the crimes. So the Kvocka judgement is also in opposite to these

18 proceedings.

19 At pages 11.077 to 11.078, my colleague focussed on the concepts

20 of Mr. Boskoski's duties and obligations. The Prosecutor has made

21 extensive submissions on this subject, at paragraphs 365 to 387 of its

22 final brief. But it's important to recall two points: First, the

23 Ministry of Internal Affairs made no genuine and competent efforts to

24 investigate the crimes alleged in the indictment, to report the relevant

25 facts to the judiciary and/or discipline the perpetrators. As the

Page 11156

1 highest authority in the Ministry of Internal Affairs at the time, and

2 the superior of the perpetrators the of these crime, Minister Boskoski

3 had the duty and obligation to ensure that these activities occurred.

4 I with refer you to Exhibits P86, the Law on Internal Affairs,

5 and P88, particularly Articles 140 through 142, on this point. P88, as

6 you know, is the Code of Criminal Procedure from Macedonia.

7 Instead, Mr. Boskoski failed to even criticise the misconduct of

8 the police that occurred between 10 -- excuse me, 12 and 14 of

9 August 2001.

10 Your Honours, I would also refer you to the testimony of Defence

11 witness Petre Stojanovski, at pages 9270, 9093 to 9094, and 9371 to 9373.

12 Petre Stojanovski described how one method used by the Macedonian police

13 to learn about potential perpetrators of crimes was to speak with

14 perpetrators of crimes, witnesses of crimes, and citizens. Petre

15 Stojanovski also explained that the Macedonian police had an obligation

16 to check out the facts, and "provide at least a minimum of relevant facts

17 an information that could corroborate the notion that a crime had,

18 indeed, been committed."

19 Secondly, Your Honours, at page 11.081, my colleague submits that

20 it was the Macedonian law that enabled Minister Boskoski to carry out his

21 functions and which set limits on Mr. Boskoski's duties as minister. My

22 colleague suggested that, once the duty officer from the Mirkovci police

23 station notified the investigative judge on 12 August that there were

24 dead bodies at Ljuboten, Mr. Boskoski's duties and obligations ceased.

25 That would be a perverse interpretation of the law, indeed; and if

Page 11157

1 correct, would create a huge gap in international humanitarian law. As

2 the Prosecution submitted in its brief, the police only reported alleged

3 acts of terrorism committed by ethnic Albanian residents of Ljuboten.

4 The police never reported to the judiciary any facts about the crimes

5 committed by the police between 12 and 14 August.

6 Your Honours, if you take the Defence`s position to its extreme,

7 that would mean that, hypothetically, a police unit could massacre an

8 entire village of civilians, report to the judiciary merely that there

9 were some persons killed in the village, and then the ministry of

10 internal affairs could wash his hands of any additional responsibility

11 for the matter. The Prosecution does not believe that international

12 humanitarian law can be interrupted in this way.

13 My colleagues mentioned yesterday a number of steps that

14 Mr. Boskoski and the Ministry of Internal Affairs allegedly took to

15 redress the crimes or investigate the crimes that occurred in and around

16 Ljuboten and in and around Skopje.

17 Your Honours, there is no credible evidence that steps were taken

18 to genuinely investigate the cruel treatment of ethnic Albanian civilians

19 at the Ametovski house, Brace's house, Buzalak check-point, the police

20 stations referred to in the indictment, and the Basic Court in Skopje and

21 Skopje City Hospital.

22 I'd like to mention one of the steps referred to by my

23 colleagues. It was a proposal for an exhumation that was submitted by

24 Goran Mitevski, the director of the ministry's public security bureau, to

25 the public prosecutor and the investigative judge that an exhumation be

Page 11158

1 carried out at Ljuboten. This is Exhibit 1D33.

2 If you take a look at the last paragraph of that document, you

3 see that, for the Ministry of Internal Affairs and for the closest

4 subordinate of Mr. Boskoski, the goal of the exhumation was to identify

5 the five corpses and determine the cause of death of these five

6 individuals. Nothing more.

7 I would invite Your Honours to compare that document with

8 Exhibit P55.02, under seal, the proposal of department public prosecutor,

9 Dragoljub Cakic, that an exhumation be carried out. The public

10 prosecutor wanted to address the real issue, the circumstances under

11 which death occurred. The Ministry of Internal Affairs never advocated

12 for that task to be carried out.

13 My colleagues suggested yesterday that the Prosecution must prove

14 that the accused's conduct, under Article 7(3), amounted to a "gross

15 violation of his duties," and that the accused's breach of his duties

16 must amount to acquiescence of toleration of the crimes. The Prosecution

17 does not accept that this is the standard applied for Article 7(3)

18 responsibility at this Tribunal. But even if it was, the evidence in

19 this case meets that standard. Minister Boskoski's intention was not to

20 redress the crimes that occurred between 10 and 14 August 2001. It was

21 to tolerate them and to shield the perpetrators from accountability.

22 My colleague yesterday suggested that Exhibit P464, the book

23 entitled "The War in Macedonia" should be given little weight, allegedly

24 because it is uncorroborated by other evidence; but the record of this

25 trial tells us otherwise. For example, P464 refers to the existence of a

Page 11159

1 war in Macedonia during 2001. That evidence is corroborated by Peter

2 Bouckaert, at page 3242 of the transcript. Information in "The War in

3 Macedonia" about the goals and objectives of the NLA were corroborated by

4 Nazim Bushi; pages 6043 to 6046 of the transcript. Exhibit P493, page 3,

5 corroborates "The War in Macedonia" description of the NLA and its

6 abilities during 2001.

7 My colleagues told you yesterday that the evidence of M-084,

8 about the issuance of radios and bullet-proof vests at OVR Cair on the

9 11th of August, is uncorroborated. But that's not correct.

10 Witness M-052 referred to the fact that a number of the members of the

11 police unit that followed Mr. Tarculovski into the village that day had

12 bullet-proof vests. Witness M-037 described the fact that

13 Mr. Tarculovski had a two-way radio with him in Ljuboten on the 12th of

14 August.

15 My colleagues told you yesterday that the unit for professional

16 standards in the Ministry of Internal Affairs was not operating in 2001,

17 but that submission is belied by Exhibit P00395, the 92 bis statement of

18 Kire Rusevski, who explains that the unit for professional standards was

19 very much operating in 2001, although it was expanded during 2002.

20 I'd like to turn my attention now to the comments of my colleague

21 Mr. Apostolski, with respect to the accused Johan Tarculovski.

22 First of all, Your Honours, the Prosecution has never argued that

23 a joint criminal enterprise extended beyond 12 August 2001. It has

24 always been the Prosecution's position that "the joint criminal

25 enterprise came into existence no earlier than Friday, 10 August 2001,

Page 11160

1 and continued up to and including Sunday, 12 August 2001."

2 That's at paragraph 4 of the Second Amended Indictment.

3 At paragraph 59 of the Prosecution's amended pre-trial brief, the

4 Prosecution explains that the common plan of the joint criminal

5 enterprise "would have had to be in place before the police entered the

6 village, or, at the very least, developed extremely rapidly after the

7 first crimes were committed."

8 However, evidence of a cover-up after the 12th of August can

9 constitute evidence of the common purpose of the joint criminal

10 enterprise within the time-period of 10 to 12 August, and I would refer

11 the Chamber to the Krajisnik trial judgement, paragraphs 970 and 1.054 on

12 this point.

13 The Defence for Mr. Boskoski and Mr. Tarculovski submit that the

14 Prosecution has failed to prove that persons with criminal backgrounds

15 participated in the Ljuboten events. This at pages 11.108 and 11.136 of

16 yesterday's transcript. The evidence on this point is set out fully in

17 paragraphs 43 and 44 of the Prosecution's final brief.

18 The evidence of witnesses, such as M-052 and M-084, along with

19 M-053, Exhibits P591, 1D326, P231, under seal, demonstrate that persons

20 who received weapons at OVR Cair on 11 August had criminal records and

21 that such persons participated in the Ljuboten operation. These criminal

22 records are set out in Exhibit P592.

23 By the way, I should have mentioned a moment ago, also P232,

24 under seal.

25 With respect to one of these persons, Ilija Sekarovski, his

Page 11161

1 criminal record is also set out in Exhibit P231 at ERN N006-4710. As to

2 the persons listed in Exhibit P232, M-084 recognised at least one of

3 those persons who did not have a clean record. This is at page 1.475 of

4 the transcript.

5 My colleague suggested yesterday that the criminal records for

6 these persons were expunged; but if these records were expunged, Your

7 Honours, then how was it possible to determine what these records are and

8 what they say, as Exhibit P592 demonstrates.

9 The Defence claim that persons -- that the persons who have

10 criminal records indicated in Exhibit P592, as shown to witness Popovski,

11 became police reservists as of the 16th of August, 2001. But, on the

12 contrary, the evidence that you've heard proves that these persons came

13 to OVR Cair on the 10th and 11th of August to be issued weapons. They

14 were given police uniforms and they became reservists, or they wore

15 police uniforms and they became reservists.

16 At page 11.115 of the transcript, my colleague Mr. Apostolski

17 appeared to argue that the Prosecution has been inconsistent by relying

18 on Exhibit 487, a map produced by Gzim Ostreni, to describe places that

19 you were under the control of the NLA, and, at the same time, keeping its

20 position that the NLA were not present in Ljuboten on the 12th of August.

21 Your Honours, these two positions are not mutually exclusive.

22 The evidence of Henry Bolton, at page 1.608 of the transcript, described

23 how the concept of control over territory can mean areas where Macedonian

24 government authorities were unable to function in 2001. Control does not

25 necessarily equal presence.

Page 11162

1 As an example, Your Honour, while the United States military may

2 be said to have been in control of South Vietnam during parts of the

3 1960s and 1970s, that does not mean that the United States military had a

4 physical presence in every South Vietnamese village. The same principle

5 can apply to Exhibit P487 and the village of Ljuboten, and as Nazim Bushi

6 described at page 5605 of the transcript: "The village of Ljuboten was

7 within the zone of responsibility of the NLA's 114th Brigade, but not

8 within its area of operation."

9 Your Honours, there has been no change to the Prosecution's case

10 theory. At pages 11.115 to 11.116, Mr. Apostolski argued that the

11 Prosecution has attempted to change the theory of its case because it

12 makes submissions in its final brief about the possibility that the

13 victims at Ljuboten were hors de combat.

14 Your Honours, the indictment in paragraphs 23, Count 1, and 42,

15 Count 3, refers to Article 3(1)(a) of the Geneva Conventions; namely, a

16 provision of common Article 3 to the Geneva Conventions which refers to

17 persons hors de combat. And in addition, paragraph 117 of the

18 Prosecution's pre-trial brief specifically refers to persons

19 hors de combat. It says: "There is an additional general requirement,

20 under common Article 3, that victims be mere bystanders to the

21 hostilities, including civilians, members of the armed forces who have

22 laid down their arms and those placed hors de combat."

23 Yesterday, at page 11.117, Mr. Apostolski acknowledged that there

24 were over 2.000 civilians in the village of Ljuboten on the weekend of

25 10 to 12 August. That fact was enough to make any participant in the

Page 11163

1 Ljuboten attack aware of the likelihood that any ethnic Albanian who they

2 encountered on 12 August was a civilian, but that awareness did not

3 temper the behaviour of the police units that entered Ljuboten on

4 12 August.

5 At page 11.118, Mr. Apostolski argued that the attack on Ljuboten

6 targeted only members of the NLA who were allegedly present in Ljuboten

7 village and that no common plan to target civilians ever existed.

8 Your Honours, the evidence about the presence of the NLA in

9 Ljuboten taking at its highest in support of the Defence position

10 demonstrates that, at most, there were three armed NLA members in the

11 village, because only three weapons, those allegedly found near the

12 Jashari house, were recovered from Ljuboten on 12 August. Why, then,

13 were the persons at the Ametovski house also targeted? Why were they

14 beaten and killed? Why was Rami Jusufi killed? Why were so many houses

15 burned?

16 Your Honours, the Prosecution agrees with the position of the

17 Tarculovski Defence, expressed yesterday at page 11.121 of the transcript

18 that "no civilian was killed in the cross-fire."

19 No civilians were killed by cross-fire on the 12th of August

20 because the members of the Macedonian police deliberately shot to death

21 the persons who died at Ljuboten: Sulejman Bajrami, Muharem Ramadani,

22 Xhelal Bajrami, Bajram Jashari, and Kadri Jashari. The explanation given

23 by my learned colleague that no civilian was killed in the cross-fire due

24 to the precautions of the security forces is a puzzling interpretation of

25 the evidence, to say the least.

Page 11164

1 Your Honours, the evidence admitted in this trial does not

2 demonstrate that President Trajkovski issued an order for the security

3 forces to carry out the Ljuboten attack on the 12th of August. The

4 evidence demonstrates that the only possible instruction given by the

5 president was his comment to Major Despodov to undertake measures and

6 activities that were within his competence so that the operation at

7 Ljuboten was successful. You find this at Mitre Despodov's testimony at

8 pages 2579 to 2580, and Mr. Keskovski's testimony at page 10.139.

9 Exhibit P304 contains a phrase suggesting that President

10 Trajkovski ordered that the attack on Ljuboten should begin on the

11 morning of 11 August; but if the president issued such an order, it was

12 not obeyed. The president was certainly unaware of the attack on

13 Ljuboten on 12 August, as evidenced by the testimony of Defence witness

14 Keskovski, who described how, on the morning of 12 August, the president

15 received information "that something was happening with the civilian

16 population that had gathered in the village of Radisani." Nothing more.

17 Page 10.112 of the transcript.

18 After the events of 12 August, President Trajkovski asked

19 Mr. Tarculovski if he had been in Ljuboten. This is at pages 10.028 to

20 10.029, and 10.019 to 10.120 of the transcript. If President Trajkovski

21 had commanded the Ljuboten operation, as the Defence suggest, it is

22 highly unlikely that the president would have asked such a question to

23 Mr. Tarculovski, the leader of the police unit that attacked Ljuboten.

24 Finally, even if you accept the Defence position that the

25 president gave certain orders pertaining to the Ljuboten attack, there is

Page 11165

1 no evidence that the president's orders somehow erased the effective

2 control, including the material ability to punish, that Mr. Boskoski

3 exercised over the police officers who carried out the attack.

4 At page 11.112 of the transcript, (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted) Mitre Despodov

10 "would also be in charge of taking other measures."

11 There was no mention of any order from President Trajkovski.

12 Indeed, there was no mention of President Trajkovski at all. This is at

13 page 8.270 to 8.271 and pages 8.312 to 8.313.

14 Your Honours, at page 11.126 of the transcript yesterday, just a

15 few minutes after relying on the testimony of M-052, (redacted)

16 (redacted)

17 (redacted), Mr. Apostolski urged you to disregard the evidence of M-052 in

18 its entirety, alleging that M-052's evidence is false, unreliable, and

19 self-serving. That is a puzzling argument, indeed, given that the

20 Tarculovski Defence seeks to rely on important parts of M-052's

21 testimony.

22 At page 11.130, (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 11166

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 At page 11.124 of yesterday's transcript, my colleague told the

13 Chamber: "After the resistance was neutralized, the attack stopped."

14 Your Honours, leaving aside the shooting of three men at the

15 Jashari house, just what was "neutralized" at the Ametovski house? The

16 evidence shows that men and women there were forced to leave the

17 basements where they had taken shelter, and the men were cruelly beaten

18 and then the police shot two of them. The attack on civilians at

19 Ljuboten did not stop until the ten men detained at the Ametovski house

20 were put on a truck bound for the Mirkovci police station, where the

21 cruel treatment continued.

22 At page 11.142, Mr. Apostolski argues that the attack on Ljuboten

23 was a legitimate anti-terrorist operation and that there was no plan to

24 attack civilians during that attack.

25 Your Honours, at that time, in addition to the new Lions unit,

Page 11167

1 the Ministry of Internal Affairs had, at a minimum, the posebna unit and

2 the Tigers special police unit. If this was a legitimate anti-terrorist

3 operation, the Ministry of Internal Affairs would have used one of those

4 units in the attack on Ljuboten. We know from the evidence of

5 Mr. Galevski and others that the posebna was available on the 12th of

6 August, 2001.

7 Mr. Tarculovski, as a regular member of the Ministry of Internal

8 Affairs and part of its security sector, would have been aware of the

9 existence of these special police units trained for legitimate

10 operations.

11 Mr. Boskoski, during his time at Brace's house on the 12th of

12 August, might also have asked himself why neither the posebna unit nor

13 the Tigers unit were present.

14 Your Honours, if this was a legitimate anti-terrorist operation,

15 why were persons with criminal records used to execute the operation? If

16 that was a legitimate anti-terrorist operation, why were volunteer police

17 reservists, individuals with the least amount of police training, used to

18 carry out the operation? And if that was a legitimate anti-terrorist

19 operation, Your Honours, why did the police officers burn crosses in the

20 back of detained persons, beat them, and kill them?

21 At page 11.127 of the transcript, my colleague argued that, in

22 general, that Mr. Tarculovski was not in control of the situation at

23 Ljuboten and had no authority over the other police officers who entered

24 the village that day. But the evidence is overwhelming that

25 Mr. Tarculovski was the leader of the police unit that attacked Ljuboten

Page 11168

1 with authority over the participants in the attack. On the 10th and 11th

2 of August, Mr. Tarculovski procured assistance for the police unit. On

3 the evening of 11 August, Mr. Tarculovski told Major Despodov:

4 "Tomorrow, I will start the action."

5 That's in Exhibit P302 and P303.

6 On the 12th of August, (redacted)

7 (redacted)

8 (redacted) further into the

9 village because artillery support from the army units was expected. It

10 was Mr. Tarculovski who explained the situation to M-037 at the Ametovski

11 house, and it was Mr. Tarculovski who told M-037 that an inspection was

12 not necessary at the Jashari house.

13 At page 11.128, Mr. Apostolski argues that the Prosecution failed

14 to prove that Mr. Tarculovski made his comment, "There is no need for an

15 inspection. This is a state of war," from a position of authority. But

16 this is circular reasoning, indeed, since Mr. Tarculovski's comment

17 proved his position of authority.

18 M-052 described the role of Mr. Tarculovski this way, at page

19 8271: "These units that was -- that came, responsible for that unit was

20 Mr. Johan. He was their boss. Whether he had a rank or not, I don't

21 know. I didn't know what was his position. I know only that he was

22 their boss."

23 Mr. Apostolski argued that the Prosecution checked the records at

24 Basic Court I in Skopje, the records of the public prosecutor, and the

25 Ministry of Internal Affairs, and yet was unable to identify the

Page 11169

1 individual perpetrators of the crimes alleged in the indictment. Well,

2 that's correct, and that's because Mr. Boskoski and his subordinates

3 failed to carry out their duties in 2001.

4 Mr. Apostolski argued that Mr. Tarculovski knew that the three

5 individuals killed near the Jashari house were not civilians because they

6 were armed; therefore, Your Honours, Mr. Tarculovski and his colleagues

7 must have known that the persons they detained at the Ametovski house

8 were civilians because they were not armed.

9 Mr. Apostolski argued that the presence of civilians will not

10 render a target immune from attack. This is at page 11.120 of

11 yesterday's transcript. But the Prosecution would respectfully refer

12 Your Honours to the Galic appeals judgement, at paragraph 194, referring

13 to the Galic trial judgement at paragraph 61, where the Appeals Chamber

14 noted that the failure of a party to abide by its obligations under

15 international humanitarian law does not relieve the attacking side of its

16 duty to abide by the principles of distinction and proportionality when

17 launching an attack.

18 Your Honours, the evidence proves that on 12 August 2001, the

19 police unit that attacked the village of Ljuboten cast the principle of

20 distinction to the winds, and that is why we are present before you

21 today, and the Prosecution asks that you find both accused guilty of the

22 crimes charged in the indictment.

23 Those are the submissions that I intended to make, Your Honours.

24 I don't know if you have any questions for me. If not, I will sit down.

25 [Trial Chamber confers]

Page 11170

1 JUDGE PARKER: Thank you very much, Mr. Saxon.

2 There seems time enough to make it a worthwhile proceeding now.

3 So, Ms. Residovic.

4 MS. RESIDOVIC: [Interpretation] Your Honour, if it suits the

5 Trial Chamber, we could have a break now, and then we will be able to

6 answer in a expeditious fashion to all the arguments put forward by my

7 learned friend. So could we have a break now, please, and then after the

8 break, we will continue. Thank you.

9 [Trial Chamber confers]

10 JUDGE PARKER: I take it you anticipate your submissions and

11 those of Mr. Tarculovski finishing well within the appointed time? Yes.

12 MS. RESIDOVIC: [Interpretation] Your Honour, yes, yes, we shall

13 be finished today. We only ask for a break now. If the Trial Chamber

14 does not find it appropriate, we will begin, but we feel that our

15 submissions would be simpler and would be presented in an appropriate

16 sequence if we were to have a break now.

17 [Trial Chamber confers]

18 JUDGE PARKER: The Chamber would be more comfortable if you were

19 able to proceed now for quarter of an hour or so, Ms. Residovic. That

20 will still give you a break in which to collect thoughts.

21 MS. RESIDOVIC: [Interpretation] Thank you.

22 [Defence Rejoinder]

23 MR. METTRAUX: Good morning, Your Honours, good morning,

24 Mr. President.

25 We'll start with responding to some of the arguments which were

Page 11171

1 made yesterday by the Office of the Prosecutor, and we'll deal with the

2 issues raised anew today after the break, Your Honour.

3 The first issue we would like to respond to is a submission made

4 by the Prosecution in response to the Defence submission of a so-called

5 village story, a version of the event which, in part, was agreed upon by

6 the villagers and repeated in this courtroom.

7 In response to the Defence submissions on that point, Prosecution

8 has invited the Chamber to ignore a clear pattern of evidential

9 tailoring, and are suggesting, at page 10.092 of the transcript: "The

10 evidence of the crime-base witnesses has remained consistent and

11 unchanged in relation to important issues."

12 In particular, the Prosecution said the following: "The

13 crime-base witnesses have remained steadfast in their identification of

14 the perpetrators of these crimes. They were either uniformed police

15 officers, or, in some of the cases of cruel treatment, civilians acting

16 with the permission and encouragement of the police."

17 The suggestion that the villagers, Your Honour, were steadfast in

18 that regard is incorrect, and the suggestion that the Chamber could rely

19 on the consistency, so-called, of the testimony in trial in that regard

20 as proof of its reliability is unwarranted.

21 Your Honours, at the time when some of the villagers were

22 interviewed by the authorities, the Macedonian judicial authorities, and

23 I refer in particular to P47, out of the 16 persons who had been

24 interviewed, only one of them suggested to have been the witness to any

25 incident of mistreatment at check-points. A number of the witnesses

Page 11172

1 referred to incident of attempted mistreatment by civilians. This

2 evidence, Your Honour, or this information has disappeared from the story

3 told in this courtroom.

4 Concerning the same 16 persons, again in P47, and concerning the

5 police stations, which does not include Mirkovci police, there is only

6 one person who alleged a mistreatment and does not identify whether that

7 person was or wasn't a member of the police.

8 The fact that their story has now changed and that they are now

9 all claiming that it was police officers that mistreated them and that

10 none of them mentioned incidents of mistreatment at the hands of

11 civilians does not show reliability, Your Honour. Quite to the contrary,

12 it shows and confirms the Defence submissions that some of the witnesses

13 have agreed to recite a particular version in this courtroom.

14 A second issue, Your Honour, which we would like to address

15 briefly is that of effective control. At page 11.014, after making

16 submissions about the alleged relevance of certain documents, the

17 Prosecution took the following view: "All of this evidence, Your Honour,

18 is further proof of the effective control that Mr. Boskoski exercised

19 over members of the Minister of Internal Affairs and the police."

20 That statement, Your Honour, not only gravely misunderstand whom

21 the requirement of effective control refers to, but it is also indicative

22 of the fact that, as submitted by the Defence yesterday, the Prosecution

23 is just trying to prove the wrong fact.

24 For the purpose of international law, Your Honours, the

25 relationship of effective control that must be shown to exist in relation

Page 11173

1 to the accused is one with the perpetrators and not, as the Prosecutor

2 has sought to assert, with the police or the members of the ministry

3 generally. I can refer, for instance, to Aleksovski Appeals Chamber,

4 paragraph 76; Blaskic Appeals Chamber, 67; Stakic Trial Chamber, 459;

5 Celebici Appeals Chamber, 249 and 992; among others.

6 As we noted in our final brief, Your Honour, and repeated

7 yesterday in our closing argument, the Prosecution is just trying to

8 prove the wrong fact and, effectively, relies upon the theory of overall

9 command that the Appeals Chamber in Halilovic has expressly rejected. I

10 would wish, Your Honour, to take a minute in this courtroom to cite from

11 the High Command case, the case from the Second World War, at page 543

12 to 544, which may be relevant to your considerations.

13 The military Tribunal said this: "Military subordination is a

14 comprehensive but not conclusive factor in fixing criminal

15 responsibility. The authority, both administrative and military, of a

16 commander and his criminal responsibility are related but by no means

17 co-extensive. A high commander cannot keep completely informed of the

18 details of military operations of subordinate and, most assuredly, not of

19 every administrative measure. He has the right to assume that details

20 entrusted to responsible subordinates will be legally executed.

21 "The President of the United States is Commander in Chief of its

22 military forces. Criminal acts committed by those forces cannot in

23 themselves be charged to him on the theory of subordination. The same is

24 true," the Tribunal continued, "of other higher commanders in the chain

25 of command. Criminality does not attach to every individual in this

Page 11174

1 chain of command from that fact alone. There must be a personal

2 dereliction that can occur only where the act is directly traceable to

3 believe him or where his failure to properly supervise his subordinate

4 constitute criminal negligence on his part.

5 "In the later case, it must be a personal neglect amounting to a

6 wanton, immoral disregard of the action of his subordinates amounting to

7 acquiescence. Any other interpretation of international law," the

8 Tribunal concludes, "would go far beyond the basic principles of criminal

9 law as known to civilized nations."

10 Your Honour, another matter pertaining to the effective control

11 case of the Prosecution concern the police stations. We have asserted

12 yesterday in our closing argument that the Prosecution had effectively

13 abandoned its effective control case in relation to the police station,

14 the court, and the hospital.

15 Mr. Saxon, in response, has cited to a number of paragraphs in

16 the Prosecution final brief, suggesting that those paragraph, in fact,

17 contain the submissions of the Prosecution in that regard.

18 We invite the Chamber to look at those paragraph and to ascertain

19 whether any basis as would allow the Chamber to make a finding of

20 effective control is to be found in those paragraphs. Your Honour, we

21 submit that none is present, and we invite the Chamber, again, to

22 consider that part of the Prosecution case as having been abandoned.

23 Your Honours, the Prosecution is also claiming that the law,

24 Macedonian law, was more than bent a little in the Ministry of Interior

25 at the time, and that situation could come to legal life without all the

Page 11175

1 necessary requirements having been met. In our submissions, Your Honour,

2 this proposition is not only artificial but it is not supported in

3 evidence.

4 The Prosecution is apparently trying to suggest that because some

5 situation could be established without the strict requirements of the law

6 having been met, it is open and reasonable to this Chamber to conclude

7 that this was the case with the people who entered Ljuboten on the

8 12th of August. In other words, despite the absence of any evidence that

9 these people had met the strict legal requirements of the law, you are

10 invited to regard them as reservists anyway.

11 There are many problems with that proposition and such an

12 inference is not open. First, proof of the existence of a relationship

13 of superior to subordinate, as is relevant to the law of command

14 responsibility, must be proved beyond a reasonable doubt. To the extent

15 that the case of the Prosecution is now one to be made by inference, Your

16 Honour, this inference would have to be the only one available, the only

17 reasonable inference open on the evidence. The standard would not be

18 made in the present case, where the Defence has put on the record that

19 many of those alleged by the Prosecution to have been in Ljuboten were

20 not, in fact, members or officials of the ministry.

21 Furthermore, and insofar as the Prosecution argument depends on

22 proof having been made that it was possible for a person to become a

23 reservist of the police without fulfilling the conditions of the law,

24 proof of that fact has not been made. There is not one single example on

25 the record of a reservist or of a person having become a reservist

Page 11176

1 without the requirement of the law having been met.

2 The Prosecution is effectively asking you not to draw an

3 inference but to disregard the law and the evidence in favour of a fact

4 that it cannot prove. In effect, you are asked to make the following or

5 to follow the following reasoning, Your Honour: Despite the clear

6 requirements of the law to the contrary, you are asked to come to the

7 view that the person may be become a reservist without fulfilling those

8 legal requirements, and you should, therefore, set aside and disregard

9 both the law and the fact that no example of this ever happened.

10 Then you are asked to assume that this is what happened in

11 Ljuboten, again without any evidence of that fact, and also despite

12 evidence to the contrary, Your Honour. You are further invited to take

13 the view that this was the case in particular in relation to the

14 perpetrators, again a fact that the Prosecution has failed to prove. I

15 will remind the Chamber, once again, that not a single one of the alleged

16 perpetrators has been identified.

17 Your Honours, with all due respect, this is not an inference that

18 is sought of you, that is pure fiction; and the allegation of the

19 Prosecution on that point is not just deficient factually or evidently,

20 but it is also contrary to its own pleadings.

21 At page 11.016, the Prosecution argues that the de jure

22 requirements should not be determinative of Mr. Boskoski's effective

23 control over those police officers. But the fact is, Your Honour, that

24 the sole basis of the alleged relationship between Mr. Boskoski and the

25 alleged perpetrators is the fact that Mr. Boskoski was the minister of

Page 11177

1 the interior at the time. That position, as well as the duties and

2 relationships of the ministers, are regulated by law and no where else.

3 There is nothing de facto about the position of the minister of the

4 interior in Macedonia, nor is there anything de facto about being a

5 reservist, Your Honour. The concept of a de facto reservist simply does

6 not exist.

7 So when the Prosecution claims that the determinative factor is a

8 material ability to punish crimes, not a legal authority to do so, he is

9 not just legally incorrect as regard the charges against Mr. Boskoski,

10 and as explained yesterday, but he also goes against the pleadings

11 according to which the duties and obligation of Mr. Boskoski are founded

12 in law in Macedonia and which allegedly linked him to the alleged

13 perpetrators.

14 Your Honour, simply for the record, we would also indicate that

15 the theory of the Prosecution, whereby individuals could have become

16 members or reservists of the Ministry of Interior without fulfilling the

17 requirements of the law, is contrary to the evidence of many witnesses

18 who testified in this courtroom. And as pointed out by my colleague

19 Mr. Apostolski in his closing yesterday, unless the Prosecution is

20 willing to confront that evidence, it may not seek from the Chamber an

21 inference to the contrary.

22 I will simply refer to the transcript at page 5.111, 4.909,

23 9.115, to 9.116, 6.827 to 6.828, 1.971, 4.918, 3.717 to 3.722, and also

24 page 10.671 to 10.672, an Exhibit 1D310, paragraph 47.

25 All of this evidence, Your Honour, is in plain contradiction with

Page 11178

1 the Prosecution's theory and remains unchallenged.

2 Would that be a convenient time, Your Honour?

3 JUDGE PARKER: Yes, thank you, Mr. Mettraux.

4 We adjourn now and will resume after the normal break at 11.00.

5 --- Recess taken at 10.30 a.m.

6 --- On resuming at 11.06 a.m.

7 JUDGE PARKER: Mr. Mettraux.

8 MR. METTRAUX: Thank you, Your Honour.

9 I'd like to move on briefly, Your Honours, to the issue of the

10 alleged armed conflict and the alleged mens rea relevant to that

11 conflict.

12 The Prosecution, Your Honours, we note has not addressed an

13 important issue that we pointed out to in our brief; namely, the status

14 of the actions of the NLA as terrorist activities and the consequence

15 which this may have on the Prosecution ability to establish an armed

16 conflict. We won't reiterate here our submissions here on that point,

17 and simply refer to our final brief. There is, however, a related issue

18 that we would like to highlight, and simply to point out that, as

19 indicated in our brief, acts of terrorism do not constitute evidence of

20 the existence of an armed conflict and fall outside the realm of

21 international humanitarian law.

22 As mentioned in the UK Manual on the Laws of War, which we cite

23 in our briefs at paragraphs 265, acts of terrorism do not amount to an

24 armed conflict. This means that to establish the existence of an armed

25 conflict, Your Honour, the Prosecution could not rely on those incidents

Page 11179

1 which amount to terrorist activities. This issue, Your Honours, is

2 relevant not just to whether or not there was an armed conflict at the

3 time in the former Yugoslavia Republic of Macedonia, but also whether to

4 the related question of whether it was reasonable for Mr. Boskoski to

5 take the view that the situation was not an armed conflict. Here, Your

6 Honour, the important fact is that at all times Mr. Boskoski and the

7 Ministry of Interior regarded and described the activities and attacks of

8 the NLA as example in cases of terrorist activities.

9 I will refer, Your Honour, in particular, as a matter of example,

10 to Exhibit 1D342, which lists a number of incidents which the Prosecution

11 claims are relevant to establishing the intensity, so they say, of the

12 armed conflict, but which, in fact, are regarded as instances of

13 terrorism.

14 And when my colleagues, Your Honours, said that what matters is

15 the accused awareness of the relevant factual circumstances on which to

16 judge finally whether the existence of an armed conflict internal in this

17 case was established, she was quite right. What was incorrect, however,

18 Your Honour, is to suggest that the facts to which the Prosecution

19 pointed to would have been relevant to establishing such a state of mind.

20 In effect, the Prosecution is pointing to a number of factual

21 incidents, acts of terrorism, as evidence, they say, of Mr. Boskoski's

22 mens rea. In effect, the Prosecution has only established that

23 Mr. Boskoski knew of incidents which are irrelevant to establishing the

24 existing -- the existence of an armed conflict. In other words, the

25 Prosecution has failed to establish that he was aware of the factual

Page 11180

1 basis that would have made it possible for him to come to that view. In

2 other words, the Prosecution failed to establish the mens rea relevant to

3 Article 3 of the Statute.

4 Counsel for the Prosecution has responded to Defence submissions

5 as regards possible mistake of law and mistake of fact by suggesting that

6 it is not for the Prosecution to exclude the possibility of such a

7 mistake. Your Honour, this is quite wrong. First, concerning the

8 technical issue of the burden of proof, it is clear that the burden is

9 upon the Prosecution at all times. It is for the Prosecution to exclude

10 the reasonable possibility that the accused might have committed an

11 excusable mistake of fact or an excusable mistake of law which might

12 offer him a full defence to the charges.

13 As authority for that proposition, Your Honour, I will cite, in

14 particular, a case Michael A. Schwartz, which is a US Court Marshall

15 judgement of 21st June 1970. It's an appeal decision at page 862 to 864.

16 The Prosecution is equally incorrect when it is dismissing this

17 defence, or at least the submissions pertaining to this defence, as

18 unimportant in this context. The Defence in particular, and the Defence

19 of mistake of law more specifically, plays a significant part and a

20 significant role under international criminal law insofar as it

21 compensates, in part, for the general lack of precision of that body.

22 The judge advocate in the Peleus case, again a case from the Second World

23 War, said this: "No sailor and no soldier can carry with him a library

24 of international law."

25 This is equally true of civilian leaders, Your Honour. And as a

Page 11181

1 result of the law's uncertainty, and as pointed out by Professor Cassese,

2 the first president of this Tribunal, he said this: "As a countervailing

3 factor to these flaws of international criminal law, court therefore tend

4 to attach to mistake of law a greater weight than the one most national

5 legal systems attribute to the same excuse."

6 And as a matter of illustration, Your Honour, of that principle,

7 I can cite, for instance, to the hostage case, where the following said:

8 "Where room exists for an honest error in judgement, such army commander

9 is entitled to the benefit thereof by virtue of the presumption of

10 innocence."

11 This principle, or these defences of mistake of law and mistakes

12 of facts, are relevant, Your Honour, in our submissions, not just to the

13 question of whether or not there was an armed conflict and whether or not

14 it was reasonable for Mr. Boskoski to take the view that there wasn't,

15 but also, as we indicated in our submission, to the issue of whether or

16 not he would have been entitled to come to the conclusion that he had

17 fulfilled all those duties that the law relevant to these proceedings

18 required of him.

19 I will cite again, this time not verbatim, from a different case

20 where the principle stated is as follows: Where the accused believed in

21 good faith that he was entitled to act as he did or that his conduct was

22 in conformity with his obligation, he may be said to have been mistaken

23 about the unlawfulness and criminal character of his conduct if, indeed,

24 that conduct is shown to have been otherwise criminal and may not be held

25 criminally reliable.

Page 11182

1 This case, Your Honour, is In Re B; it's a Dutch case from the

2 Field Court Marshall, a decision of the 2nd of January, 1951, which is

3 reported in "The Netherlands 1952" at page 247.

4 The Prosecution today, Your Honour, in its brief has reiterated

5 the suggestion that Mr. Boskoski and Mr. Tarculovski were present

6 together at Brace's house. As we have indicated in our brief, and in our

7 submissions, the evidence does not support such a case. The Prosecution

8 relies upon the evidence of two persons, M-037 and Mr. Jakovoski.

9 Starting with M-037, Your Honour, the Prosecution has cited to

10 pages of the transcript where Mr. Saxon, indeed, read back to the witness

11 a statement which that witness had given earlier. The content or that

12 part of the statement upon which the Prosecution now seeks to rely was

13 never put to the witness. The witness never adopted that part of the

14 statements upon which the Prosecution seeks to rely. To the extent that

15 this is evidence, Your Honour, this is the evidence of counsel, not of

16 the witness.

17 M-037 never claimed in evidence before this trial that he saw

18 Mr. Tarculovski and Mr. Boskoski together. If that was the Prosecution's

19 case, it should have put it to the witness. And, Your Honours, I draw

20 your attention to page 875 and 876, which counsel has read to you, in

21 part.

22 Following the part that was read to you by the Prosecution, the

23 Prosecution said this: "All right. Thank you. That is all I want to

24 deal with this document."

25 Mr. Saxon said: "I don't need to deal with anything else in this

Page 11183

1 document. Can that document then now be removed, please."

2 Your Honour, it is our submissions that on a matter of such

3 importance and to the extent that the Prosecution intended to elicit such

4 evidence from this witness, it had the duty to put the proposition in

5 question to the witness. It failed to do so.

6 Concerning the second witness on which the Prosecution seeks to

7 rely, Mr. Jakovoski, the situation is very similar. Mr. Jakovoski never

8 adopted the content of the statement that counsel read to him. In fact,

9 he positively rejected it when asked specifically by counsel. In that

10 regard, I can cite, in particular, from page 2935, where the following

11 page was asked of him:

12 "Can you recall seeing Minister Boskoski and Bucuk and Johan

13 Tarculovski together during the crisis time in 2001?"

14 The answer was: "I cannot recall this either."

15 Elsewhere in the transcript, Your Honour, the same witness,

16 Mr. Jakovoski, indicated that he did not even know what Mr. Tarculovski

17 looks like. It is page 3942.

18 Therefore, to the extent that the Prosecution suggests that

19 Mr. Jakovoski gave positive evidence of a sighting of Mr. Boskoski and

20 Mr. Tarculovski together, the record does not support such a proposition.

21 Today, Your Honour, the Prosecution has also taken issue with

22 submissions made by counsel in the course of yesterday's closing

23 argument, concerning the degree of fault necessary to entail superior

24 responsibility under international criminal law. The Defence has

25 indicated that the standard to be met was that of a gross breach of duty

Page 11184

1 which amounted, effectively, to acquiescence on the part of the superior.

2 The Prosecution has indicated that this was not law the of this Tribunal

3 and that there was no support support for the Defence proposition on that

4 point.

5 First, I would like to cite from the Bagilishema, the Appeals

6 Chamber judgement of the ICTR Tribunal. Paragraph 36, the Appeals

7 Chamber said this: "Depending upon the nature of the breach of duty,

8 "and that refers to the duties of a superior, "which must be a gross

9 breach, and the gravity the consequence thereof breaches of duties

10 imposed by the laws of war maintain a disciplinary rather than a criminal

11 liability of a superior who is subject to military discipline.

12 So what the Appeals Chamber said is that it was, in fact, a

13 requirement of international law that the duty -- the breach of duty be

14 gross in nature.

15 Secondly, and insofar as relevant to the law of superior

16 responsibility which is applied in this Tribunal as is indicated, inter

17 alia, in the Hadzihasanovic Appeals Chamber judgement of this Tribunal,

18 this is customary international law which rules. Therefore, the cases to

19 which the Defence has referred in page 15 to 20 of tab 25 of your binder

20 are foundational precedents of international criminal law, an extremely

21 important indication of the state of international law on that point; and

22 all of them, Your Honour, we submit, support the point of the Defence.

23 The Prosecution has not explained why or how this Chamber could disregard

24 this standard.

25 As an additional matter, we will simply draw Your Honours'

Page 11185

1 attention to the position of the ICRC on that point, which said this at

2 paragraph 3451 of its commentary to additional Protocol I.

3 It says that: "To be criminal, the dereliction that is to be

4 attributed to a commander or a superior must be so serious that it is

5 tantamount to malicious intent apart from any link between the conduct in

6 question and the damage that took place."

7 In various cases that took place after the Second World War, the

8 standard which was regarded by this Tribunal as relevant to liability for

9 this form of responsibility was that of acquiescence.

10 Perhaps, I will read briefly, again, the conclusion of the High

11 Command case in relation to this matter, where it said that: "The

12 dereliction must be personal neglect amounting to a wanton, immoral

13 disregard of the action of his subordinates amounting to acquiescence.

14 Any other interpretation of international law would go far beyond the

15 basic principles of criminal law as known to civilized nations."

16 Your Honour, I'm grateful for your patience, and now I give the

17 floor to Ms. Residovic.

18 JUDGE PARKER: Thank you, Mr. Mettraux.

19 Ms. Residovic.

20 MS. RESIDOVIC: [Interpretation] Thank you, Your Honour.

21 In the course of today's rebuttal, the Prosecutor touched on the

22 Defence position that the Ministry of Interior, when informing the

23 investigating judge, had carried out its duty, and commented on this by

24 saying that such an interpretation of the position of the minister of the

25 interior would amount to a serious violation of international law.

Page 11186

1 Your Honours, the Macedonian state has ordered an entire system

2 of detecting and prosecuting perpetrators of crimes. In this system, as

3 you have seen from the evidence admitted and from the testimony of the

4 witnesses heard here, particular organs have certain duties and

5 responsibilities. As has been shown in the evidence presented, at the

6 point of time when the duties of one body or organ cease, the duties are

7 taken up by another organ. So, in the Republic of Macedonia, there is no

8 possibility for orders to detect and prosecute crimes. It cannot fail to

9 be carried out in full.

10 You have heard testimonies to this effect, as I have already

11 said: Vilma Ruskovska, the deputy prosecutor, and also the testimony of

12 Petre Stojanovski.

13 Therefore, at no point is there any vacuum or gap where someone

14 might wash his hands of a crime they had committed. The only issue is

15 who had the legal duty and responsibility to act and in what direction

16 was that action taken.

17 The Prosecutor used only one example, saying that that would be

18 the action taken by the police, and this is the information of the

19 12th of August that there were corpses in the villages. However, our

20 written submissions and the evidence in the case shows that neither on

21 the 12th nor on the 14th did the ministry cease cooperating actively with

22 the other judicial organs in order to throw light on the events in

23 Ljuboten and the surrounding area. Your Honours, we have provided

24 evidence to support this, and this evidence has been dealt with in full

25 in our written submissions. So I will not repeat them now.

Page 11187

1 The Prosecutor, however, wishes to show that the Ministry of

2 Interior didn't really want to investigate the events and gave an

3 example; that is, Exhibit 1D33. This is the proposal for exhumation and

4 post-mortem which was submitted on the 7th of September to the public

5 prosecutor's office and the duty investigating judge of the Basic Court

6 in Skopje by the ministry. Referring to this exhibit, the Prosecutor

7 claims without foundation that this exhibit goes to show that the

8 ministry did not have the intention of throwing light on the events and

9 establishing all the relevant facts and circumstances.

10 Your Honours, I will take the liberty of reading the closing

11 sentence of this proposal, in which the Ministry of Interior explains its

12 proposal by saying that the identity of five corpses must be established,

13 as well as the cause of death from the five individuals from Ljuboten

14 village. To establish the reason or the cause of death means

15 establishing all circumstances and reasons and the conditions due to

16 which the death of the aforementioned individuals occurred.

17 In relation to this proposal, you have heard witnesses, Vilma

18 Ruskovska and others, that this exhumation request was actually an

19 initiative that went beyond the responsibilities and the competences of

20 the minister of the interior towards the justice system bodies. This

21 business after the knowledge that the bodies were buried was in the hands

22 of the prosecutor himself. But since the prosecutor did not do that

23 within the next 20 days, it was the ministry who initiated the

24 aforementioned procedure, precisely due to the reasons that the Defence

25 indicated, because it was important for the minister and for the ministry

Page 11188

1 to clarify and elucidate all events and to justly and properly establish

2 all facts and circumstances.

3 The best illustration that this is correct is the information

4 compiled by the commission established by Mr. Boskoski on the 13th of

5 August, which states at the end of its opinion: "In order to analyse the

6 issue at stake and have a comprehensive approach, it is necessary that

7 the competent structures in the Republic of Macedonia undertake

8 legitimate action, exhumation of the corpses in the presence of experts,

9 as well as representatives of the interested international organisations

10 which would have as its consequence undertaking of all necessary legal

11 measures, in order to ascertain all relevant facts and obtain the answer

12 to the open and essential issue for this case."

13 So it is precisely the opposite of the position of the Prosecutor

14 that the ministry was unwilling to learn about the circumstances of the

15 case. The documents that were received in evidence, Your Honours,

16 testify to the opposite.

17 And, finally, in relation to this issue raised by my learned

18 colleague the Prosecutor today, I wish to refer to Exhibit 1D73; that is,

19 the Official Note that speaks to the meeting which took place on the

20 14th of September, 2002 [as interpreted] in the Forensic Medicine

21 Institute -- 2001, upon the initiative of the investigating judge,

22 Nikolovski, which from the very beginning, acting upon the proposal of

23 the public prosecutor and upon the initiative of the Ministry of

24 Interior, was in charge of the Ljuboten case from the beginning until the

25 end, until it was deferred to the competence of the international

Page 11189

1 Tribunal.

2 This document reads: "In the meeting, the investigating judge,

3 Nikolovski, informed the attendants that the Ministry of Interior has

4 submitted to the basic public prosecutor's office, Skopje, an information

5 note on the activities undertaken in the area of Ljuboten by the security

6 forces of the Ministry of Interior."

7 So, Your Honours, it is exactly the opposite from what the

8 Prosecutor suggests. The evidence in this case show all due responsible

9 of the ministry and the Minister Boskoski in performing all duty that

10 they had under the law but to go even beyond, to ascertain all facts

11 related to the events and any liability, if there would be evidence that

12 would lead to reasonable suspicion.

13 So, this is a direction according to which I am referencing also

14 Exhibit P88, Article 42, which clearly speaks about the duties of the

15 public prosecutor within the criminal procedure, who has the task of

16 being in charge of the pre-trial procedure. That is the stage when the

17 crimes are detected. Article 144, paragraph 2 of that same law, P88,

18 which clearly stipulates that at the moment when the public prosecutor

19 obtains knowledge that there is an reason to suspect that a crime has

20 been committed, that he is then dominus litis who puts requests to other

21 organs, so also to the Ministry of Interior which are the tasks that they

22 need to undertake. So all the other evidence that you have on record

23 absolutely deny the allegations of my learned colleague.

24 In his closing arguments, the Prosecutor, attempting to

25 demonstrate the de facto control of the minister of the interior over the

Page 11190

1 police, refers, inter alia, to the fact that the minister in 2001 issued

2 an order to interrupt annual leaves and the testimony of Miodrag

3 Stojanovski who said that this order reached the police stations.

4 Your Honours, not for a single moment did the Defence claim that

5 a minister cannot issue an order. The Defence, however, has stated

6 clearly, and the evidence points to this, that the minister could issue

7 an order when authorised to do so by the law. We have mentioned more

8 than once Exhibit P92, Article 55. This is the Law on the Organisation

9 of the State Administration which enumerates the authorities and the

10 powers of the minister, if he is empowered to implement them by the law.

11 As for the specific issues raised by my learned friend when

12 referring to the de facto control of Mr. Boskoski, when he issued an

13 order to interrupt annual leave, this right of his is founded directly on

14 the law and is one of the exceptional cases when a minister may issue an

15 order. This can be seen in Exhibit P86, Article 61, which says the

16 following: "When the needs of the ministry so require, the minister, or

17 an officer authorised by them, could delay or terminate the annual

18 vacation of an employee."

19 So it is the opposite from the assertion of the Prosecutor. This

20 example, again, corroborates the position of the Defence that the

21 minister had certain rights, when explicitly provided with them by the

22 law, to also issue certain decisions.

23 In a part of his closing arguments where the Prosecutor wishes to

24 show that there was some situations which existed de facto before they

25 came into being de jure, the Prosecutor refers, inter alia, to the

Page 11191

1 testimony of witness M-056, claiming that this witness held the position

2 of senior inspector, although the post did not exist in legal terms at

3 the time.

4 With respect to the same circumstance, Your Honours, we heard the

5 testimony of General Zoran Jovanovski, who stated clearly, when this

6 question was put to him, that Exhibit 1D62, from which the Prosecutor

7 deduced that the status of senior inspector existed before it was

8 regulated by law, the witness said that this rule book on the

9 modification and amendments, in fact, only amended the rules in item 5 by

10 introducing into 5.1 the battalion called Lavovi, Lions, Rapid

11 Intervention Battalion which was established under exhibit -- from the

12 testimony of M-056. That's on transcript pages 49 -- I apologise. I

13 will give you pages later. As well as from the exhibits, it follows

14 quite clearly that the title, "senior advisor," existed before, and that

15 the amendment referred only to the introduction of the decision of the

16 minister of the 6th of August, 2001.

17 The Prosecutor's claim of something existing before it was

18 regulated by law, the decision of the 26th of June on the reestablishment

19 of the posebna unit, all evidence shows that this was a unit which

20 existed in the time of the Socialist Federative Yugoslavia. And in the

21 transitional provisions, this is mentioned in the exhibit itself. The

22 exhibit referred to by the Prosecutor represents only minor changes and

23 amendments to the previous decision, rather than establishing the unit

24 anew or establishing a new unit.

25 In his oral closing arguments, the Prosecutor -- I do apologise.

Page 11192

1 I've just received the transcript pages where General Jovanovski

2 clarified the situation. That's 4894 to 4898, transcript pages 4894 to

3 4898.

4 Supporting his arguments that something could exist de facto,

5 although it did not exist de jure, the Prosecutor, again, refers to the

6 testimony of witness M-052, who testified incorrectly about another issue

7 before this Tribunal, which impeaches the credibility of this witness.

8 On transcript page 11.017, he says that the Kuceviste reserve police

9 station existed de facto, although it was created only at a later date.

10 And when a written statement of Marjan Taskovski was put to witness

11 M-052, where Marjan Taskovski confirmed that the police station existed

12 only as of the 15th of August, 2001, M-052 made the comment quoted by my

13 learned friend.

14 However, Your Honours, the reserve police station of Kuceviste

15 came into being on the 15th of August, and was opened on the 16th of

16 August, 2001.

17 In the binder we gave you yesterday, we included Exhibit P586,

18 which is an overview of the payments of remuneration for the reserve

19 force for this police station, reserve police station, Kuceviste. That's

20 a letter from the Ministry of Interior, the sector for interior affairs

21 Skopje, the Cair department, the Kuceviste reserve police station, dated

22 September 2001.

23 It includes a list of the persons which, as of the 16th of

24 August, 2001 to the 31st of August, 2001 were engaged in this police

25 station. This exhibit is in tab 17D.

Page 11193

1 However, in tab 17E of yesterday's binder, you will find, Your

2 Honours, part of the diary of witness M-084 or his log-book. This first

3 lists the persons whose status in the reserve force was checked by

4 witness Gjoko Popovski. However, on page N006-4709 -- so, N006-4709 --

5 THE INTERPRETER: Interpreter's correction: 4715.

6 MS. RESIDOVIC: [Interpretation] -- of the text in English -- the

7 pages are correct.

8 I do apologise, Your Honours. I think I will never understand

9 these e-court pages.

10 That's ERN N006-4714. This contains a personal note of

11 witness M-084, dated the 15th of August, 2001, referring to a meeting in

12 the Ministry of Interior. That's -- well, what is important here is that

13 at the end, it says that preparations are being carried out for the

14 reserve police station. The last line says that: "On the 15th of

15 August, preparations for the reserve stations were under way."

16 And on the next page, Your Honours, there is an note, dated the

17 16th of August, 2001. That's N006-4715. The time is 7.30, and it says

18 "opening of the reserve police station in Ljubanci." This evidence, Your

19 Honours, confirms what the commander of this police station, Marjan

20 Taskovski, wrote and what was put to witness M-052, and M-052 denied

21 these indisputable facts.

22 Attempting to prove his claim that there was effective control

23 and that the de facto situation existed before the de jure situation came

24 about, the Prosecutor refers to Exhibit P402, saying that parts of this

25 exhibit show that the Lions existed before they were created in terms of

Page 11194

1 legal documents.

2 I wish to say the following, Your Honours: At a meeting of 29th

3 of August, referred to by my learned friend, if we look at the exhibit in

4 question, we shall see clearly that Mr. Boskoski addressed those present

5 in connection with this issue, saying that the action of the Lions which

6 were in the process of being established - this follows from Exhibit P74

7 and other exhibits in the file; Exhibit 1D61, referring to an amendments

8 of the rules an organisation and work; and 1D62 - and the name Lions was

9 given to this unit in these documents. It says that this will be the

10 unit which, when the NATO forces leave Macedonia, will be able to take

11 over the defence of Macedonia.

12 Therefore, citing this conversation as a fact confirming their

13 prior existence goes contrary to the gist of what Minister Boskoski said

14 on the pages I quoted. Likewise, the following meeting, that -- or the

15 next meeting that the Prosecutor relies on, that's Exhibit P402, must be

16 seen in the same light. That is the meeting of the 10th of June which is

17 about what is going to happen, not what has already happened.

18 A complete clarification for this position was given by witness

19 Zoran Jovanovski, who had been the deputy under-secretary for police at

20 that time and later became under-secretary for police. However, the

21 evidence speaks best, evidence and records: This is 1D59, that is

22 government's decision; 1D60, president's decision on the establishment of

23 this unit; then P74, which is the decision of the minister about the

24 establishment of Lions; exhibits which create prerequisites for the

25 establishment of this unit, 1D62 and 1D61; and the testimonies of all

Page 11195

1 witnesses who stated that this unit became operational only in the autumn

2 of 2001.

3 The Prosecutor also refers to Exhibits P439 and 277. These

4 are --

5 [Defence counsel confer]

6 MS. RESIDOVIC: [Interpretation] Actually, I apologise, the

7 Prosecutor cited only to P439. That is a video-clip in which it is

8 mentioned that the Lions existed for eight months already.

9 In relation to this, in the course of cross-examination and in

10 course of the re-examination, the witness, General Jovanovski, provided a

11 complete clarification.

12 Actually, from the Exhibit P74, it is seen what was the procedure

13 necessary in order to create the Lions, and it can be seen who will

14 become part of the structure of the Lions. This exhibit presents clearly

15 that parts of the posebna unit will become parts of the Lions. We know

16 that this was a permanent unit that existed forever in the structure of

17 the Ministry of Interior and also part of the reserve forces who will

18 enter into contracts with the Ministry of Interior in the future.

19 So, those individuals who will later become members of Lions

20 have, as members of posebna or as members of the reserve forces, in their

21 original police units participated in the fights, but as members of the

22 posebna or members of the reserve forces. Probably, they became members

23 of the Rapid Interventions Battalion, Lions, through the procedure that

24 was followed. As explained by General Jovanovski, the words of the

25 minister, when speaking to the Lions, that they fought bravely in the

Page 11196

1 past six months refer to those who have been the best in the units and

2 participated in the fights at those times, and not about the Lions that

3 allegedly existed before and now were only formally established.

4 So a proper overview of all evidence speaking about the

5 establishment of the Lions unit and all testimonies speaking to this

6 before this Court, we will find that the case and the theory of the

7 Prosecutor presented in the closing arguments and today is absolutely

8 unfounded.

9 Clarifying the aforementioned video-recording, P439, General

10 Jovanovski was also shown the video-clip that was Exhibit P277. They

11 were both received in evidence; but on that occasion, General Jovanovski

12 clarified another matter, and that was why are the brave young men called

13 Lions and why was that title given to Lions once they were established as

14 a unit. I already indicated that the title was given to the unit only on

15 the 5th of September. The witness explained that that was part of the

16 Macedonian history, and that in the old times the units that were

17 fighting in the Ilinden uprising were called by that name.

18 So nothing of it is related to the assertion of the Prosecutor

19 that the Lions, either as a unit or as a group, existed before they were

20 actually established, and no evidence within this procedure testifies to

21 the opposite. In relation to this, what I just said can be found in

22 Zoran Jovanovski's testimony on page 5.113, in relation to Exhibit P277,

23 and 5.439 [as interpreted].

24 There is a mistake in the transcript. It is not "5.439" but

25 "P439."

Page 11197

1 Your Honours, I would speak briefly only about the issue raised

2 today by my learned friend the Prosecutor, and that is whether the

3 persons participating in the Ljuboten action had criminal background or

4 not.

5 We are all familiar because we are working in criminal matters

6 that the procedure of resocialisation exists in all civilized countries

7 in the world, and this is why the expunging of criminal records is not

8 something that is known in the Macedonian penal legislation only. It

9 exists everywhere in the world. But respectfully of this, we have

10 accepted through the testimony of witness Vesna Dorevska two decisions of

11 the constitutional court of the Republic of Macedonia that this

12 requirement absence of prior convictions was removed from the law, or

13 that was Exhibit P86. That was no longer a requirement for someone to

14 become a member of the regular police forces.

15 What is important for us here are the evidence that were on

16 record and that we presented within your binders. They clearly show that

17 the Prosecutor offered no evidence that would establish that any of the

18 persons that allegedly on the 11th were issued weapons allegedly upon an

19 order of Petre Stojanovski or Goran Mitevski, that was a list of eight

20 individuals, that any of those had any criminal background; neither has

21 the Prosecutor offered any evidence that would corroborate this; and

22 neither has he offered anything that would corroborate such notions for

23 the list from the PSOLO police stations.

24 Individuals with criminal background in the words of the

25 Prosecutor were actually villagers of Ljuboten village that were issued

Page 11198

1 weapons on that day, and they were never brought in relation with anyone

2 from the Ministry of Interior. But, at the end, Your Honours, as my

3 learned friend said, the main issue here is that the Prosecutor failed to

4 prove, firstly, that the persons who were prior perpetrators of crime

5 have ever been or on that date members of the Ministry of Interior, and

6 he offered no proof that they had been under effective command and

7 control of Mr. Boskoski.

8 So, our final position that we had presented before, as well, is

9 that the minister took all necessary and reasonable measures be, all

10 measures that he the detention unit to undertake according to the

11 legislation of the Republic of Macedonia, and even measures that he had

12 no duty to undertake but that he still undertook, wishing to elucidate

13 events in and around Ljuboten and that they were appropriate in the given

14 circumstances.

15 So due to these reasons, we still remain, Your Honours, with the

16 proposal that Mr. Boskoski is acquited on all counts of the indictment.

17 And at the end, Your Honours, allow me to thank you, first of

18 all, Your Honours, for providing, during the entire procedure, a

19 situation where the Defence is able, in accordance with the principle of

20 fair trial, to examine and question all witnesses that the Prosecutor

21 offered, to examine a significant number of documents, and to call up

22 witnesses that they considered appropriate and questioned them.

23 Also, I wish to thank my colleagues from the Prosecutor's office

24 who have demonstrated a significant degree of goodwill for cooperation to

25 so that this procedure ran smoothly.

Page 11199

1 I also thank, Your Honours, everyone, all members of the registry

2 who also, as can be seen from numerous examples and situations, helped

3 the Defence in presenting the evidence that it planned to present before

4 this Court adequately.

5 We also thank CLSS and all interpreters who often needed to

6 manage the pace that the Defence took in order to use the time

7 efficiently. I also thank all Macedonian interpreters who made efforts

8 to adequately interpret the language that is not their native language,

9 and also thank you, Your Honours, for allowing me to speak in my native

10 language.

11 And at the end, I wish to tell you that a huge part of the burden

12 of the Defence presentation was carried by the Defence team, so I thank

13 you the legal assistants, case managers, my consultants, and the interns

14 without whom the Defence of Mr. Boskoski would not have been able to

15 present its evidence as it did.

16 I thank you, once again, Your Honours.

17 JUDGE PARKER: Thank you, Ms. Residovic.

18 Mr. Apostolski, do you need the lectern?

19 MR. APOSTOLSKI: [Interpretation] Thank you, Your Honour. I would

20 ask for a moment, to take the lectern from my colleagues.

21 Your Honours, on page 16 of today's transcript, the Prosecution

22 claims that it is not changing its theory that there are some victims who

23 were hors de combat, and it supports this claim by saying that in citing

24 the law in their pre-trial submission. This is mentioned in

25 paragraph 117 showing which persons are protected under Common Article 3.

Page 11200

1 Nonetheless, in the indictment, in the pre-trial submission, as well as

2 during the trial, it was claimed that all victims are civilians and not

3 persons hors de combat.

4 Your Honours, the fact that only three automatic rifles were

5 brought and the evidence which irrefutably says that they were found in

6 Ljuboten does not exclude the possibility that there were other weapons

7 in the village of Ljuboten. The Prosecution itself, my learned

8 colleagues from the Prosecution, in paragraph 68 of the indictment,

9 lists - and Defence is in agreement with this - in paragraph 68 -- my

10 apologies. I would like to rephrase my sentence.

11 The Prosecution in the indictment in Article 68, lists Sunday,

12 12th of August 2001, the presence of armed Albanian combatants in

13 Ljuboten was assessed at maximum ten to 15 persons armed with automatic

14 weapons and at least one machine-gun. These individuals acted either

15 alone or in small groups to prevent the advancement of the police units

16 of Johan Tarculovski. The Prosecution claims that there were ten to 15

17 persons armed with automatic weapon there and at least one machine-gun.

18 Furthermore, it is a fact that no house was searched, and the

19 evidence, among which witness Bolton state that on the 14th of August, he

20 found a gun in the Ametovski house, and that there is an proof that

21 several guns were hidden in the Ametovski house.

22 Your Honours, the Prosecutor claims that this was not a lawful

23 anti-terrorist action because no special unit Tigers were used, nor the

24 Lions were used in this action. At that time, unfortunately, the Lions

25 did not exist, and the Tigers were fighting with the NLA and the Kosovo

Page 11201

1 Protection Corps in Radusa, preventing the penetration from that

2 direction to Skopje. It would be wonderful if Macedonia had multitude of

3 units that could fight terrorists. However, Macedonia was not prepared

4 for these terrorists. We're talking about a young state that fought with

5 the courage of its defenders who were often volunteers or reservists. In

6 fact, the reservists were the ones who destroyed the NLA in Vaksince and

7 were most courageous on the ground.

8 On page 22 of today's transcript, the Prosecution claims that I

9 said yesterday that the Tribunal -- the prosecutors of the Tribunal in

10 Macedonia checked the MOI, the courts, and the prosecutor's office of

11 Macedonia, when they did not find the alleged participants in this

12 action. This is not what I said yesterday. I said that the Prosecutors

13 of the Tribunal carried out checks and asked criminal records of the

14 alleged participants in the unit of Johan Tarculovski. To this end, they

15 carried out checks in the MOI, the prosecutor's office of Macedonia, as

16 well as in the courts of Macedonia, and they did not succeed in finding

17 any single criminal record with a verdict for the alleged participants.

18 JUDGE PARKER: Mr. Saxon.

19 MR. SAXON: I'm very sorry to interrupt, Your Honour.

20 Just a point of clarification. What Mr. Apostolski is submitting

21 right now, is this based on any evidence that has been admitted in this

22 trial?

23 JUDGE PARKER: That, I think, is a question delivered to you,

24 Mr. Apostolski.

25 MR. APOSTOLSKI: [Interpretation] Your Honours, I just wanted to

Page 11202

1 clarify that representatives from the Office of the Prosecutor of the

2 Tribunal have been to Basic Court Skopje I, to Basic Court Skopje II.

3 JUDGE PARKER: Is this a matter of evidence in this trial?

4 MR. APOSTOLSKI: [Interpretation] Your Honours, this is not a

5 matter of evidence on this trial. I'm just commenting --

6 JUDGE PARKER: Well, you shouldn't comment on matters that are

7 not in evidence, Mr. Apostolski. Perhaps you should move on.

8 Thank you.

9 MR. APOSTOLSKI: [Interpretation] Thank you, Your Honours.

10 The Prosecutor then claims that Tarculovski was the commander of

11 the unit on the basis of evidence of witness M-052, their favourite

12 witness, who had come to agreement with the Prosecution not to be accused

13 in this case but, rather, to testify against Tarculovski.

14 But I must say that (redacted)

15 (redacted)

16 (redacted)

17 members of the Macedonian security forces enter the village. He

18 reported to the minister in this action. He prepared the criminal

19 reports against apprehended terrorists in the village who are now alleged

20 victims.

21 Witness M-052 is the one who did not want to speak the truth in

22 front of this Tribunal, that he wanted and asked for his whole family to

23 be dislocated outside of Macedonia, and that he would say anything in

24 order to throw responsibility away from himself.

25 Your Honours, once again, I propose that, after having considered

Page 11203

1 the evidence, Mr. Tarculovski is acquitted of all points in the

2 indictment.

3 I would like to express my appreciation to the Court Chamber

4 which very attentively followed our deliberations and allowed us a fair

5 trial. It allowed the Defence to cross-examine witnesses with the aim of

6 establishing the rightful factual situation. My appreciation and thanks

7 to my colleagues of the Prosecution, to my colleagues of the Defence of

8 Mr. Boskoski for their cooperation in this case, all with the aim to

9 speed up the process and bring it to its end.

10 I wish to point out also my appreciation to the registry for the

11 cooperation we have had with them throughout the whole trial.

12 Thank you, Your Honours, for permitting me to address this

13 Chamber yet once again.

14 I have nothing further to add.

15 JUDGE PARKER: Thank you very much, Mr. Apostolski.

16 [Trial Chamber confers]

17 JUDGE PARKER: The Chamber is informed that each accused may wish

18 to briefly address the Chamber. This is not a matter provided by the

19 Rules, but the Chamber is prepared to allow that to occur, if the accused

20 so wish. The Chamber could hear those brief comments now, conveniently.

21 Is there any difficulty with that perceived by counsel?

22 Ms. Residovic.

23 MS. RESIDOVIC: [Interpretation] Your Honours, we have no

24 comments, as we ask perhaps before our clients address, could you grant

25 us a brief recess, and after that, they will address the Court.

Page 11204

1 JUDGE PARKER: Our problem is with the tape mechanism. If we

2 have a recess, it really needs to be half an hour because there must be a

3 rewinding of the tapes, and there is an half an hour delay on the

4 broadcasting, so it requires half an hour.

5 If, for that reason, it would be much more convenient to proceed

6 now, is there some particular concern you have that would require an

7 adjournment?

8 MS. RESIDOVIC: [Interpretation] Your Honour, we have no

9 particular concern, but considering that those are the closing arguments

10 presented by our colleagues, closing words, and, previously, you did

11 accept such proposal to go in recess early. We could kindly ask you for

12 this.

13 But if the Chamber believes that there is any reason to not grant

14 this proposal of the Defence, we will continue. But we believe that this

15 would be more appropriate.

16 [Trial Chamber confers]

17 JUDGE PARKER: The Chamber feels it is would be more practical

18 for everybody to proceed now to hear what it is that each accused wishes

19 to say.

20 We would emphasise that this is an unusual procedure and the

21 Chamber expects each accused to be brief in their comments, but we do

22 appreciate that the accused may wish to put something finally to the

23 Chamber.

24 To that end, we would normally call upon Mr. Boskoski first, if

25 that is convenient.

Page 11205

1 Yes, Mr. Boskoski. Press the red button.

2 [Statement of the Accused Boskoski]

3 THE ACCUSED BOSKOSKI: [Interpretation] Mr. President, Your

4 Honours, first of all, allow me to express my high appreciation for

5 giving me the opportunity, although this is not the usual practice, to

6 say a few words at the end of this one-year process. After such a long

7 period of absence after four years, thank you for giving me the

8 opportunity to express my impressions and my pleasure at what transpired

9 in the course of this process.

10 In particular, Your Honours, I would like to point out that I

11 agree fully with the clearly stated positions and arguments made by my

12 esteemed team, who did not spare the efforts in the course of this last

13 year to give their maximum with one and only goal before this Tribunal:

14 Macedonia and international public state the truth about a very difficult

15 time through which my country, the Republic of Macedonia, passed through.

16 I also have to express my particular appreciation to my team that

17 in this period of time, they worked exclusively on evidence based and

18 founded on Macedonian law, international law, humanitarian law, so as to

19 avoid any trace uncleared about this period through which the Macedonian

20 state went through.

21 Also, I would like to say that as a man, and as a minister at

22 that time, Your Honours, at that time, for me, there was one high legal

23 act important for me at that time: The constitution of the Republic of

24 Macedonia, laws which I had to respect, rule books which I had to

25 respect, a body of laws and regulations inherent to all modern and

Page 11206

1 civilized states which seek to become member European associations above

2 all NATO and the European Union.

3 We're not a state which stands outside of this European system.

4 We're not a state that works based on some fabricated rules. Our legal

5 system is based on that of Europe and international experience. This is

6 why at that time I did not and could not have any other alternative but

7 to respect law of the Republic of Macedonia, and in accordance with my

8 authorisations, to assist anyone and everyone who needed assistance. To

9 those who requested such assistance from the ministry, I responded to

10 this and I never differentiated among people along their ethnic,

11 religious, or any other affiliation, not now, not in my past, not in my

12 youth, because I, too, was born in an intermixed area. This is the

13 intermixed and culturally different area where I was born.

14 Mr. President, Your Honours, I worked in a most transparent

15 manner. I was known as minister for this. I offered maximum assistance

16 and help to this Tribunal as well. On several occasions, I met with

17 Ms. Carla Del Ponte.

18 We spoke about the difficult situation which Macedonia was facing

19 and no one refutes this, because I knew that it would be this Tribunal

20 where important decisions will be made which will contribute to the

21 stabilization of our country, of our region as a whole, the region of

22 south-eastern Europe.

23 Your Honours, although thousands of days of loneliness have

24 passed for me, much like those of Marques, I can say, Your Honours, that,

25 nonetheless, I'm satisfied with everything I was given, including in this

Page 11207

1 Tribunal believing in the sincerity of all participants in this process.

2 Also, this is my only opportunity to thank the personnel at

3 Scheveningen prison, among which I have discovered some secret talents, I

4 must say. Although, we have been separated from those closest to us,

5 from our family, from my beloved Macedonia, I remain steadfast and loyal

6 and faithful and sure in one thing: That this Tribunal is just; that you

7 will be prepared; after all the analysis that has been presented, you

8 will be able to bring a just decision and acquit me from the points in

9 the indictment.

10 Ultimately, as a man, and this is the symbolic meaning of my name

11 as well, I wish now to recall a great Macedonian, Mihail Rendzov, who

12 said: "Dear Lord, for a while at least, choose some others. We are

13 tired of death, we are no more prayers, we have no new blood for new

14 victims."

15 Let this Tribunal finalise these victims and the suffering and

16 this message rendered by Rendzov which is embedded deeply also in the

17 Statute of the Tribunal, which is bring reconciliation in my country and

18 in the whole region. Let it bring about a normal life, breaking away

19 from the past.

20 I think this is a great role which the international community

21 has endowed, and that this will be fulfilled.

22 Once again, thank you very much for the attention you have given

23 me, Your Honours.

24 JUDGE PARKER: Thank you, Mr. Boskoski.

25 Mr. Tarculovski.

Page 11208

1 [Statement of the Accused Tarculovski]

2 THE ACCUSED TARCULOVSKI: [Interpretation] Your Honours, I wish to

3 thank you for giving me the opportunity, as well as giving it to my

4 Defence team, to demonstrate that I have done no crime aiming against the

5 civilians or civilian facilities.

6 I have no objection in relation to the treatment that I received

7 over the course of the trial. At the beginning, I was unlawfully

8 arrested and I doubted that I would have a fair trial, but I wish to send

9 a message to my immediate family that their support is my greatest

10 treasure, and their love.

11 Everything in life happens for a reason. I don't think that the

12 three years spent in detention are time lost. I have learned many truths

13 here. I learned not to be rushed, to be patient, to appreciate what I

14 have, and to appreciate the differences.

15 When my family grew larger, my life gained a completely different

16 meaning. It's tragic and completely unnecessary what happened in

17 Republic of Macedonia in 2001. It is tragic, and it is sad that some

18 sick minds through perpetrating attacks against civilians, soldiers, and

19 police officer fought for political offices.

20 Your Honours, we, the Macedonians, are people of peace. We are

21 always prepared to help anyone who needs it is most. No Macedonian

22 wished for what happened in 2001. But nowhere, in no country in the

23 world, would there be any one who would approve and support terrorist

24 actions. It is a sacred duty for any individual to defend their country.

25 I wish to give thanks for the support that the government of the

Page 11209

1 Republic of Macedonia, headed by the prime minister, Nikola Gruevski,

2 offers to me and my family. I'm also grateful to the Trial Chamber

3 because I never felt during the trial as someone who was convicted

4 already, or that I would be convicted because someone else wishes for

5 this.

6 Your Honours, this trial for my small but proud and biblical

7 country, Macedonia, is a historical precedence. It would either give

8 legitimacy to the legitimate Macedonian state institutions in the defence

9 of the constitutional order or would reward the terrorists and encourage

10 them in continuing their evil deeds.

11 I thank you, and I believe your justness.

12 JUDGE PARKER: Thank you, Mr. Tarculovski.

13 [Trial Chamber confers]

14 JUDGE PARKER: That concludes the hearing of evidence and

15 submissions in this case, which has continued now for just over one year.

16 The Chamber records its appreciation to counsel and their teams, to the

17 court officers, interpreters, and the security personnel who have enabled

18 the trial to be conducted with the convenience and efficiency that we

19 have all enjoyed.

20 It is now for the Chamber to give consideration to the very

21 substantial amount of oral and documentary evidence it has received, and

22 to the submissions that we have received in writing and now orally in the

23 last three days. Inevitably that will take some time and the Chamber

24 must reserve its decision before reaching a conclusion, as it must

25 consider all those matters.

Page 11210

1 That is what we will now do. We will now declare the case closed

2 and reserve our decision.

3 --- Whereupon the hearing adjourned at 12.32 p.m.,

4 sine die