Tribunal Criminal Tribunal for the Former Yugoslavia

Page 26878

 1                           Wednesday, 20 August 2008

 2                           [Prosecution Closing Statement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           [The Accused Lazarevic not present]

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

 7             JUDGE BONOMY:  Good morning, everyone.

 8             We shall now continue to hear the closing arguments of the

 9     Prosecution.

10             Mr. Hannis.

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

12             Before I move on to General Pavkovic, there were two items I

13     wanted to follow-up from yesterday.  One regarded a question you

14     addressed to Ms. Kravetz.  You asked about whether it was our position to

15     say that -- using the NATO bombing campaign as a cover on implementing

16     the plan.  You said, "Now, are you saying that's something which just

17     happened because of a developing set of circumstances, or are you saying

18     that they went to the peace negotiations with the plan in mind that,

19     Well, when these break down NATO will bomb us and we'll use that as a

20     cover for removing the population?"

21             We take the position, Your Honour, that the accused's intention

22     was to implement the plan to alter the ethnic composition in Kosovo.

23     They took steps to ensure this including, we say, a step of not

24     negotiating in good faith to achieve a peaceful solution.  As it

25     happened, the bombing did provide an opportunity to speed up the process

Page 26879

 1     and do it on a greater scale, but we say from October when you have that

 2     statement from Milosevic about, We'll have a solution in the spring, that

 3     there was the intention from that point on to remove a significant

 4     portion of the population in order to alter the ethnic balance to help

 5     ensure Serbian control of the province.

 6             If the bombing did not happen, we believe the accused still would

 7     have taken steps to implement the plan, but it's difficult to speculate

 8     about something that didn't happen.  The fact is that bombing did occur,

 9     and we say that members of the JCE proceeded with the plan which had been

10     conceived in October 1998.  I hope that answers your question about our

11     position.

12             JUDGE BONOMY:  Thank you, Mr. Hannis.

13             MR. HANNIS:  Two other things.  In General Ojdanic's final brief,

14     there are a couple of matters they raised that I just wanted to address.

15     In paragraph 410, he asserts that the mens rea for forcible transfer

16     requires an intent to permanently displace.  We say that's not a correct

17     statement of the law.  For deportation, what is required is the forcible

18     displacement of persons from an area in which they are lawfully present

19     across a border without grounds permitted under international law.

20     That's from the Stakic appeals judgement at paragraph 278.  The Appeals

21     Chamber held that no intent to displace permanently is required, nor is

22     there a minimum threshold as far as the number of deportees.  We refer

23     you again to the Stakic appellate judgement at paragraph 307, the

24     Brdjanin appellate judgement at paragraph 206, and regarding minimum

25     numbers, Stakic at paragraph 320.

Page 26880

 1             And one other item.  Between the time that we filed our briefs

 2     and today's arguments, there was a judgement in the Strugar case on the

 3     17th of July that deals with an issue that you may address in reaching

 4     your final judgement, and that has to do with Article 7(3) and about

 5     whether a superior knew or had reason to know that his subordinate was

 6     about to commit crimes.  I would like to direct your attention to

 7     paragraphs 301 and 304 of that judgement.

 8             Now, while a superior's knowledge -- paragraph 301 says, While a

 9     superior's knowledge and failure to punish his subordinate's past

10     offences is insufficient in itself to conclude that the superior knew

11     that future, similar -- that similar, future offences would be committed

12     by the same group, this may, depending on the circumstances, nevertheless

13     constitute sufficiently alarming information to justify further inquiry.

14             And then in paragraph 4, they point out that the correct legal

15     standard regarding the mens rea element under Article 7(3) is that

16     "sufficiently alarming information putting a superior on notice of the

17     risk, the risk, that crimes might subsequently be carried out by

18     subordinates, and justifying further inquiry is sufficient to hold a

19     superior liable under Article 7(3)."

20             That's -- we think that's fairly new jurisprudence that the Court

21     should be aware of in your deliberations on this matter.

22             Now, there were other Defence arguments by the Ojdanic case --

23     Ojdanic Defence.  One of them was the fair trial issue.  Your Honour,

24     that was raised on three earlier occasions by the Defence, and we say

25     there's nothing new presented here to warrant a change your prior rulings

Page 26881

 1     on that.

 2             Now with that, I would like to turn to General Pavkovic, and

 3     General Pavkovic we know was the commander of the Pristina Corps in 1998

 4     during the implementation of the plan to suppress terrorism and of the

 5     3rd Army from January 1999.  We say General Pavkovic contributed to the

 6     JCE, first of all, by arming non-Siptars; secondly, by breaching the

 7     October Agreement; and thirdly and most significantly, in planning,

 8     commanding, ordering, and coordinating VJ operations in controlled joint

 9     VJ and MUP combat actions.

10             With regard to arming the non-Siptars, we spoke about this

11     already when I was addressing General Ojdanic's role in that connection,

12     and we looked at Exhibit P1415, which was the 26 June 1998 order from

13     General Pavkovic, following on from an order from General Samardzic in

14     the 3rd Army command providing for arming the non-Siptar population and

15     organizing defence in those non-Siptar villages.  So I won't go through

16     that again.

17             The other side of that coin was Pavkovic's involvement in

18     disarming the Siptars, the Albanian population.  Pavkovic reported about

19     this in one of my favourite Exhibits, P2166, which we'll be talking about

20     some more before I'm finished.  That was the 29 October 1998 meeting of

21     the operations inter-departmental staff for the suppression of terrorism.

22     In that report he indicated that large quantities, over 150 tonnes of

23     weapons and ammunition were confiscated and handed over in the course of

24     implementing the plan; some 93 Siptar villages were disarmed; and as of

25     the date of the report, he indicated at page 5 of that exhibit that 66

Page 26882

 1     villages still needed to be disarmed.

 2             And we have evidence that that disarming programme in cooperation

 3     between the VJ and the MUP continued.  You'll see in Exhibit P1197, which

 4     is a Joint Command operations report dated the 20th of November, 1998,

 5     that that work, that disarming programme, was ongoing.

 6             Next, we say General Pavkovic contributed to the JCE by breaching

 7     the October Agreement.  It's set out in more detail in our closing brief,

 8     but in interviews after the war he, in my view, appeared to be bragging

 9     about the fact that they were able to bring in additional units into

10     Kosovo during the time before the war practically under the nose of the

11     OSCE verifiers.  You can find that in Exhibits P1319 and P912.

12             You've also heard evidence about that on several occasions in

13     discussions of VJ collegium meetings.  Some of those meetings include the

14     18th March 1999 meeting, which is found in Exhibit P938 at page 11, and

15     also in the 10 December 1998 VJ collegium, Exhibit 3D484.

16             Related to that, we say that General Pavkovic also violated the

17     October Agreements because he directed his subordinate forces to engage

18     in offensive actions against the KLA and misrepresented those in his

19     reports, first of all, to the VJ General Staff by claiming that those

20     were merely responses to initial attacks by the KLA.

21             Let me turn now to the most significant contribution, joint

22     VJ/MUP combat actions.  During 1998, as the PRK commander and as a member

23     of the Joint Command, Pavkovic commanded, planned, ordered, and

24     coordinated joint VJ/MUP combat actions.  In 1999, after he had been

25     elevated to the 3rd Army command, he did the same and still in connection

Page 26883

 1     with the Joint Command, we say.  In 1999 he continued to support MUP

 2     forces in those anti-terrorist actions, the same MUP forces which he well

 3     knew had committed crimes in 1998.  This is set forth in much greater

 4     detail in our final brief at paragraphs 853 to 870.

 5             I want to talk about Pavkovic in the Joint Command, and I'll talk

 6     about several topics.  First, this is the operations inter-departmental

 7     staff to suppress terrorism.  We only have one --

 8             JUDGE CHOWHAN:  I apologise, interfering --

 9             MR. HANNIS:  Yes.

10             JUDGE CHOWHAN:  -- and spoiling your eloquence.

11             Now, from line 15 to line 19, you talked about General Pavkovic

12     violating the October Agreement because he directed his subordinate

13     forces to engage in offences against the KLA, misrepresenting those in

14     his report, first of all, to the VJ General by claiming that those were

15     merely responses to initial attacks by the KLA.

16             Now, how do you formulate an accusation as to this because this

17     is only focused on KLA.

18             MR. HANNIS:  Your Honour, if I understand your question

19     correctly, part of the October Agreement provided that additional forces

20     were not to be brought in and also that the OSCE was to be advised in

21     advance when certain elements of the VJ were coming out of barracks or

22     were going to engage in operations, and that's part of where we say he

23     violated the agreements by bringing VJ elements out of barracks and

24     engaging in offensive operations without prior notice to the verifiers.

25             JUDGE CHOWHAN:  Without prior notice.  Thank you, sir.

Page 26884

 1             MR. HANNIS:  You're welcome.

 2             Now, let me return to Pavkovic and the Joint Command.  The

 3     operations inter-departmental staff, we only have the one document P2166

 4     that refers to that body, but I say we have other evidence showing the

 5     existence of that body and other meetings carried out by them.  But

 6     before I go to that, I want to talk about other items joining Pavkovic

 7     with the Joint Command.  We'll talk about the creation of the Joint

 8     Command.  We'll talk about the 1998 plan to suppress terrorism.  We'll

 9     talk about another one of my favourite exhibits P1468, the notes of Joint

10     Command meetings; Exhibit P2166, the report on implementing the plan to

11     suppress terrorism; and finally, evidence showing the continued existence

12     of the Joint Command in 1999.

13             Now, first the operations inter-departmental staff.  Between late

14     May 1998 and October 1998, we have evidence from the suspect interview of

15     General Pavkovic that there were four what are basically described as

16     top-level meetings of the VJ, MUP, and political brass about the crisis

17     in Kosovo.  The first meeting was about adopting the plan to suppress

18     terrorism and forming a Joint Command.  In General Pavkovic's interview

19     at page 321, he indicates that the first meeting took place on the 30th

20     of May, 1998, in Belgrade; the persons present were Milosevic,

21     Milutinovic, Perisic, Jovica Stanisic from the state security, General

22     Samardzic, General Dimitrijevic, and Pavkovic himself.  And he then

23     indicates that there was a second meeting, which we know was on the 21st

24     of July, and at page 395 of his interview he tells us the third meeting

25     took place on the 4th of August in 1998 in Belgrade.  All the same

Page 26885

 1     persons were present except Jovica Stanisic.  The fourth meeting took

 2     place on the 31st of October, and all the same persons were present.

 3             It's -- I'll address it when we come back to P2166, but you'll

 4     see Pavkovic tells us about four meetings of this group of high-ranking

 5     VJ, MUP, and political officials.  You'll see in the October 29th meeting

 6     a numbering that would suggest that this is the fifth meeting of that

 7     group in October.

 8             Pavkovic tells us that the first meeting was about adopting the

 9     plan to suppress terrorism and forming a Joint Command.  We'll look at

10     that in just a minute in further detail.

11             I'll talk about the creation, how did this body come into being,

12     the creation of the Joint Command, according to Pavkovic, at pages 322 to

13     325 of his suspect interview, and if I could go to -- let me consult with

14     my case manager.

15                           [Prosecution counsel confer]

16             MR. HANNIS:  One of our sources of information about the Joint

17     Command was in the form of a response to an OTP request for assistance,

18     and we received back from the Federal Ministry of Justice of the Federal

19     Republic of Yugoslavia Exhibit P1317, which you see on your screen.  They

20     informed us in July 2002 that:  "The Joint Command for Kosovo and

21     Metohija was formed on the order by the FRY President in June 1998

22     without any specific document ..." We have some evidence about the

23     meeting of Mr. Milosevic's political party around June 10th, 1998, where

24     some of our members of the Joint Command are named to go to Kosovo and

25     deal with the situation.  That seems to be the logical inference, that

Page 26886

 1     that is what this refers to, but as it indicates and as best as we have

 2     been able to determine, there is no document.  And as we've said, there

 3     is no provision in the constitution that we could find or that Professor

 4     Markovic could help us with about provision for the existence of any such

 5     body.

 6             Note that this response says:  "The above command operated until

 7     October of that year," 1998, "following which, several unofficial

 8     meetings were held where the current security situation was analysed ..."

 9             We don't have General Djakovica's notes or any equivalent

10     regarding meetings after October 1998, but we do have a lot of evidence

11     in this case suggesting that the Joint Command in some form continued to

12     exist and function into 1999, and with General Vasiljevic's testimony we

13     say that was still the case up until at least 1 June 1999.  And it's not

14     clear from this what distinguishes an official meeting of the Joint

15     Command for Kosovo and Metohija from an unofficial meeting, but that's

16     what it says.

17             It's interesting to note in this response, as well, that

18     according to the military organ's knowledge, documents from the Joint

19     Command related to military issues were delivered to the incumbent chief

20     of the cabinet of the FRY president, and the buildings where those

21     documents may have been housed were demolished and destroyed.  But that

22     raises more questions than it answers, I suggest, Your Honour, about,

23     well, what other Joint Command documents were there that related to

24     issues other than military issues and the fact that the documents may

25     have been housed in destroyed buildings doesn't mean that they weren't

Page 26887

 1     housed elsewhere.

 2             But at any rate, that's the official response we had about the

 3     creation of the Joint Command from the Serbian government.  But we have,

 4     perhaps, better evidence from General Pavkovic in his interview.  Exhibit

 5     P949 from pages 322 to 326, he talks about how that came about.  At page

 6     322, he tells us about the first meeting.  Among those present were

 7     himself and General Samardzic and General Perisic.  The MUP

 8     representatives included General Djordjevic, Rade Markovic, Obrad

 9     Stevanovic, General Lukic.  And on page 322 near the bottom, he tells us

10     that the purpose of this first meeting was:  "Adopting of the plan for

11     fighting terrorism in Kosovo."

12             And -- I'm sorry.  It doesn't appear on your screen, but the

13     B/C/S plan -- Pavkovic's B/C/S answer includes "i formiranje zajednicke

14     komande."  With my limited B/C/S, I understand that to mean forming Joint

15     Command, which has not been translated into the English, but you'll see

16     it in the original B/C/S.

17             And then he goes on at page 324 to say that the result of the

18     meeting was to start with realization of the plan for fighting terrorism.

19     At 325, he tells us that the Joint Command was formed, at the bottom of

20     the page.  So it appears that this body, which I suggest to you was the

21     inter -- the operations inter-departmental staff, created the Joint

22     Command perhaps as early as that meeting in late May 1998.

23             Other evidence related ...

24                           [Trial Chamber and legal officer confer]

25             JUDGE BONOMY:  What's concerning me, Mr. Hannis, is your

Page 26888

 1     reference to the foot of page 122 [sic] which you say can't be seen or

 2     isn't on the screen.  Do we have that page?

 3             MR. HANNIS:  Page 322?

 4             JUDGE BONOMY:  Yes.

 5             MR. HANNIS:  Yes, I see it on my screen now.

 6             JUDGE BONOMY:  It's just not been picked up --

 7             MR. HANNIS:  Here, it's mentioned as page 6 of 37 or something,

 8     but that is page 322 in e-court.  You'll see the interpreter -- the

 9     biggest block for the interpreter about nine blocks up from the bottom,

10     and immediately above that, Pavkovic's answer is the part where I'm

11     referring to.  Yes, that's it.  You'll see the last four words:  "I

12     formiranje zajednicke komande."

13             JUDGE BONOMY:  Do you have any reason why that's not been

14     interpreted at the time?  I mean, the issue for me is whether this ought

15     to be interpreted now.  I understood that everything that was said in

16     both languages was repeated in the other language, and you're founding on

17     something which we can't read, as I understand it.

18             MR. HANNIS:  Yes, Your Honour.  I could ask the interpreters to

19     read those four words for us and interpret them for us, but I'm also

20     satisfied because three pages later Pavkovic says the Joint Command was

21     formed.

22             JUDGE BONOMY:  Yeah, well, that would be fine if that's what

23     you're relying on, but what you're actually relying on is what's said

24     earlier on this page, and therefore, that needs to be translated.  So the

25     best way of doing that is to ask the interpreter here now to read in

Page 26889

 1     English the last three words of that answer, which -- that interpreted

 2     answer, which is now on the screen.

 3             MR. HANNIS:  I'm satisfied to have them read the whole statement

 4     of Pavkovic.

 5             JUDGE BONOMY:  That might be better, so the passage immediately

 6     preceding what the interpreter says in B/C/S should now be read in

 7     English, please.

 8             THE INTERPRETER:  The purpose of that meeting was to adopt a plan

 9     for the suppression of terrorism in Kosovo and Metohija and the setting

10     up of a Joint Command.

11             JUDGE BONOMY:  Thank you.

12             Are you content with that, Mr. Hannis?

13             MR. HANNIS:  I am.  Thank you.

14             JUDGE BONOMY:  Any concern from you, Mr. Ackerman, about that?

15             MR. ACKERMAN:  Well, the concern is the integrity of the rest of

16     that document in view of that.  It obviously has not been very carefully

17     translated.

18             JUDGE BONOMY:  Thank you.

19             Please continue, Mr. Hannis.

20             MR. HANNIS:  Well, Your Honour, I don't think there's a problem

21     with the translation of the document.  I think what happened was the

22     interpreter, you'll see, asked Pavkovic a question about the earlier part

23     of his answer, and I think so that's why he or she missed translating the

24     rest of that into English at the time.  I think if you review the entire

25     document that there's not a grievous concern about the translation.

Page 26890

 1             JUDGE BONOMY:  Thank you.

 2             MR. HANNIS:  Thank you.

 3             Now, related to this, I would like you to take a look at an

 4     excerpt from the testimony of General Dimitrijevic when he was here

 5     testifying about what was happening in late May, June, and July regarding

 6     Kosovo.  At -- and we talked about the Joint Command and Pavkovic.  At

 7     this first meeting -- or this meeting in July had presented a plan that

 8     was apparently assigned to him to present at the first meeting.  General

 9     Dimitrijevic says:  "Why General Pavkovic?  I was present, or rather,

10     participated in a conversation at Milosevic's place when he called the

11     Chief of General Staff," Perisic, "and me to discuss ..." He thought this

12     was sometime in late May or perhaps mid- or late June, and Milosevic at

13     that time had the idea that he presented to Perisic and Dimitrijevic

14     about appointing Pavkovic the commander of all the forces in Kosovo, both

15     the military and the MUP forces.  Perisic and Dimitrijevic were opposed

16     to that idea.  He told you in his testimony that the simple reason they

17     were opposed was because probably there would be obstruction and refusal

18     on the part of the MUP to subordinate its units.

19             I suggest to Your Honours, that's not a -- I'm not sure that was

20     the real reason Perisic and Dimitrijevic were most concerned because if

21     General Pavkovic is put in that position by Slobodan Milosevic, I suggest

22     to you during that time and at that place, if that's what Milosevic

23     wanted to do, he would make it happen, and he would make MUP go along

24     with it if he wanted to force it that way, but he didn't.

25             But keep all this in context.  It's very important.  I'll address

Page 26891

 1     this at the very end of my remarks.  Keep all this evidence in context,

 2     review the evidence in chronological fashion, and you'll see all kinds of

 3     connections that may illuminate things which otherwise remain a bit

 4     confusing.

 5             At this same time, in June and July of 1998, we've seen some

 6     evidence that General Perisic was upset about how some VJ units were

 7     being used in Kosovo.  We have the excerpt from one of those VJ

 8     collegiums.  I don't have the precise cite in front of me, but July 1998

 9     where he is upset because it's come to his attention that some VJ units

10     had been used I think in the interior of Kosovo, despite his specific ban

11     on use of VJ units without his specific permission.  And you heard the

12     evidence from General Dimitrijevic that General Samardzic had tried to

13     implement disciplinary proceedings against General Pavkovic in connection

14     with that, and what happens instead, there's no discipline, and Pavkovic

15     is promoted by Mr. Milosevic.

16             We have evidence of that promotion in Exhibit P1510, which is a

17     newspaper report from Tanjug, saying that Milosevic had promoted Pavkovic

18     from major-general to lieutenant-general.  That's the very same day that

19     they had the meeting of what I say was the inter-departmental staff for

20     the suppression of terrorism, where the plan for suppressing terrorism

21     was first discussed.  I suggest to you that this is the way that

22     Milosevic got what he wanted in effect by creating this Joint Command

23     with one of his personal representatives, Mr. Sainovic, to play a leading

24     role, and he then didn't have to go directly in the face of General

25     Perisic and General Dimitrijevic.  Although we say he could, I think the

Page 26892

 1     evidence suggests that until that time that was something he didn't want

 2     to do.

 3             Remember, then, two days later, on the 23rd of July, 1998, is

 4     when General Perisic writes his letter to General Milosevic complaining

 5     about how the army is being used and in his view being misused contrary

 6     to the constitution in his view, how persons outside the military are

 7     having a role in directing how army units are used, et cetera.  And

 8     Pavkovic's status now in connection with this Joint Command, do you

 9     remember what General Dimitrijevic said about that?  He thought part of

10     the reason that this Joint Command was created was so that Pavkovic could

11     point to something that he had behind him, and what he had behind him in

12     the Joint Command was Mr. Sainovic and Mr. Milosevic.  So that's how we

13     say Mr. Milosevic arranged to get what he wanted in the first place,

14     which in effect was to have Pavkovic in charge of all the forces in

15     Kosovo.

16             Reflective on this, the plan to suppress terrorism, we'll take a

17     quick look at Exhibits 4D100 and 4D101 and then 1468 and 2166.  4D100 and

18     4D101 on the 22nd and 23rd of July.  One day after this meeting with

19     Milosevic where the plan to suppress terrorism was discussed, Pavkovic in

20     4D100 sends to his superior, General Samardzic, the 3rd Army commander, a

21     request for clarification about engagement of the Pristina Corps units.

22     You'll see he makes reference in that document to the meeting with

23     President Milosevic, and he reflects that an order was given to implement

24     the plan for combatting terrorist forces.  The plan envisages the

25     participation of the MUP and Pristina Corps units, and his last line

Page 26893

 1     said:  "In view of the above, please work out in more detail the

 2     engagement of the Pristina Corps units in implementation of the plan."

 3             I think I made the comment the first time we brought this

 4     document up in evidence that at least to my layman's eye that reads more

 5     like a document from a superior to a subordinate than vice versa, but

 6     that's just my opinion.

 7             4D101, that is from Samardzic -- or from Pavkovic to Samardzic

 8     the next day, the 23rd of July.  He notes that implementation of the

 9     second stage of the plan to eliminate terrorism provides for the

10     engagement of MUP and PRK units.  He reminds Samardzic:  "You have been

11     briefed on the plan as a whole several times, the last time at the

12     briefing with the president on 21 July when the order was given to

13     commence implementation of the plan."

14             Now, Pavkovic is very much, we say, encouraged by the creation of

15     this Joint Command and this plan to suppress terrorism and his role in

16     all of that.

17             Look at -- look carefully, I request of you, in your review of

18     the evidence before writing your judgement at P1468, General Djakovica's

19     notes of the Joint Command meeting.  Because of the handwriting, there

20     are several parts that unfortunately we weren't able to have translated.

21     They're illegible, and apparently even now some of them are illegible to

22     the one who wrote them, but there is enough there that you can get the

23     sense and the gist of what happened in those 60-plus meetings between

24     July and October 1998.  We say they clearly show this group is more than

25     just an information-sharing body as some of the witnesses would have you

Page 26894

 1     believe.  The members themselves refer to it as a "command," and what is

 2     discussed at the meeting is corroborated by events on the ground and by

 3     contemporaneous documents from the MUP and VJ.

 4             If you could have a look at an excerpt from these meeting notes,

 5     first of all, page 160 of P1468, Mr. Sainovic, this is on the 26th of

 6     October which you will recall is the day after the Clark-Naumann

 7     agreement was reached and signed, where Mr. Milosevic made his comment

 8     about a final solution in the spring.  Sainovic is advising the Joint

 9     Command members about what's been happening, and you'll see he says:

10     "When pulling out we must be careful enough not to let anyone find out

11     that parts of some detachments did not pull out."  That relates to our

12     earlier points about violating the October Agreements and the approach to

13     dealing with the OSCE.  But right below that, you see General Pavkovic

14     says:  "My command from Nis," the 3rd Army command, "believes that this

15     command," the Joint Command, not the joint coordinating committee or not

16     the joint information-sharing body, the Joint Command, "this command

17     should cease to exist."

18             But on the next page and the next excerpt -- and I'm sorry, I

19     don't think I have the right one on the screen.  The very next page, I'll

20     read from it in case I can't find it to put up for you.  It's at page 61

21     and -- 161 in the English version in e-court.  Again, from this 26th of

22     October meeting Mr. Sainovic says:  "This stage of combat operation is to

23     be closed, and decisions and tasks are to be given.  I think that with

24     OSCE pressure there should be more coordination between all the bodies."

25     This is where you'll recall Andjelkovic then says:  "Nobody's authorised

Page 26895

 1     to take away our documents.  All the documents are to be kept on the

 2     Joint Command's premises."

 3             Then Mr. Sainovic, then, finally the last comment noted from this

 4     meeting says:  "Since the command was not able to keep the documents in

 5     the district building, conditions have been created to keep the documents

 6     in a MUP building."

 7             And then finally, the one last reference is from a meeting on the

 8     28th of October, and I think we do have this one.  Yeah, it's General

 9     Pavkovic, page 163.  One thing I wanted this up for was General

10     Pavkovic's reference to:  "We have to take into consideration how to use

11     the armed population and how to involve it in the defence of

12     communications."  We'll relate to this later when we're talking about the

13     armed non-Siptar population.  But on this topic I'm talking about right

14     now, Minister Minic is talking about this command.  You'll see his last

15     four lines:  "I think that this command should stay and work with the

16     same people until the end of the year and meet in accordance to the need.

17     The documentation should be completed and given to the military committee

18     of the President of the FRY."

19             This is from the 28th of October, and we say, Your Honour, that

20     this relates to the big meeting that was held the next day on the 29th of

21     October of the operations inter-departmental staff for the suppression of

22     terrorism which is reflected in Exhibit P2166.  But you'll see Sainovic,

23     Pavkovic, Minic, Andjelkovic, all referring to themselves as a command,

24     as the Joint Command, not the coordinating body but the Joint Command.

25             P2166, the report on the work of the Joint Command.  We say this

Page 26896

 1     document demonstrates the existence and the nature of the Joint Command,

 2     particularly in regard to the 1998 and the summer plan to suppress

 3     terrorism.  You see in that report itself that the participants agree,

 4     and the conclusion pronounced by Mr. Milosevic at the end is that the

 5     Joint Command should continue to function.  It was Mr. Sainovic himself

 6     who suggested that perhaps in a different state, maybe with fewer persons

 7     involved, but that it should continue.

 8             In that document, you'll also see the explanation for why no

 9     state of emergency was declared and an awareness about civilian

10     casualties in the event of mobilisation and engaging strong forces.

11             Let's take a look at the next slide.  I just put this up for you

12     to see the number on this document, DT.  I think it's state secret.  This

13     is number 208-5, and that's my argument, Your Honour, that dash 5 means

14     that this is the fifth one; this is the fifth meeting.  The first was May

15     30th, the second was July 21st, one on August 4th or 5th, one on August

16     31st, and then this one on the 5th of -- or this one on the 29th of

17     October.  And this is part of the reason that I suggest to you those four

18     meetings described by General Pavkovic in his suspect interview were

19     meetings of the operations inter-departmental staff.  And in 2166 you see

20     the list of all the persons who were attending that meeting.

21             The next slide, please.

22             This is General Pavkovic explaining about the implementation of

23     the plan to suppress terrorism and explaining some of the restrictions

24     they had to take into consideration.  One was avoiding provoking an

25     excessive reaction from abroad and carrying out the above without

Page 26897

 1     proclaiming a state of emergency.  He then explains why an introduction

 2     of a state of emergency was not acceptable for several reasons.  Keep in

 3     mind General Perisic's letter of 23 July 1998, P717, where he had urged

 4     the president to impose or declare one of those states or to have that

 5     done by the appropriate body so that the army then could be engaged more

 6     fully.

 7             Pavkovic explains, Well, first we would provoke a reaction from

 8     the foreign countries which would intervene militarily on behalf of the

 9     terrorists.  Second, we'd have to mobilise the VJ and that could cause a

10     problem domestically; we're not even sure mobilisation would be

11     successful.  Third, the engagement of strong forces would draw more

12     attention from domestic and international public, and certainly it would

13     have.  We've already had two UN resolutions prior to this date decreeing

14     the use of force against the civilian population and since the terrorists

15     would sustain extensive losses as would our own forces, and avoiding

16     civilian casualties would not be possible.  So Pavkovic and everyone at

17     this meeting, then, we say, Your Honour, is on notice that engaging in

18     that activity was going to unavoidably result in civilian casualties, but

19     that's what they did anyway.  They went ahead in 1999 and did that.

20             It's interesting to note the next comment.  I'm not sure why this

21     was put in there at this meeting, but Pavkovic says:  "As may be

22     concluded, our plan was not to 'kill all the Siptars' or expel them from

23     KiM, but to destroy the main terrorist forces and separate the terrorists

24     from the people."

25             We suggest that perhaps in light of what had happened in 1995

Page 26898

 1     there was an awareness of the problem of taking that approach of killing

 2     all the Siptars, and to try and expel all the Siptars from Kosovo at that

 3     point in time we say would have been extremely difficult in light of the

 4     intense international awareness and focus of what was happening in

 5     Kosovo.  And we'll argue this again, probably more than once before we're

 6     done.  We are not alleging in our indictment or claiming that the plan

 7     was to expel all the Albanians from Kosovo; it was only to expel a

 8     sufficient number in order to maintain Serbian control of the province,

 9     as a practical matter during the war, and you'll see this in General

10     Pavkovic's interview himself.  There was an awareness that once NATO

11     started bombing there was some strategic considerations regarding keeping

12     part of the civilian population in Kosovo.  If all the civilians were

13     kicked out of Kosovo, the only people remaining would have been the VJ

14     and the MUP, and NATO bombing would have been much more intense and wide

15     open, we suggest.

16             So in October, the end of October 1998, in discussing the plan

17     that had been implemented prior to that day, Pavkovic notes that it

18     wasn't our plan then, at the time, to kill all the Siptars or expel them.

19     But, Your Honour, this is part of my argument that I've made, that there

20     -- because of the Kosovo problem there were ever more oppressive measures

21     to try and deal with the situation.  They continually met with failure.

22     They still had the problem.  So after October 29th, 1998, we say they had

23     to do try something more severe than they had done up to now, and that

24     was to increase their military and police actions and remove as many

25     Kosovo Albanians as they could, including the civilians.  Because you

Page 26899

 1     see, the problem was to separate the terrorists from the people.  You've

 2     heard lots of evidence about the difficulty with that, how the terrorists

 3     would throw down their weapons and change into civilian clothes and go

 4     into the villages.  It was a practical impossibility, and we say they

 5     decided, the heck with that.  We can't sort this out anymore.  We're

 6     going to deport -- or we're going to kick out as many of these people as

 7     we can, because half of them support these guys anyhow.  They provide

 8     them food, shelter, et cetera.

 9             Next slide, please.

10             Next, in P2166 there's a note about what tasks were set forth in

11     the plan, and one was arming the Serbian and Montenegrin people and

12     establishing reserve police units to defend villages.  This relates to

13     P1415 that we showed you earlier and discussions in the VJ collegiums.

14             Next.

15             Disarming all the Siptar Albanian villages.

16             Next.

17             The moving out of non-Albanians was prevented.  This was, again,

18     we say part of the plan to try to maintain Serb control of the province

19     to keep the Serbs in Kosovo and remove as big a number of the Albanians

20     as possible to achieve that ultimate goal of maintaining control.

21             Next.

22             We say this project -- this plan to suppress terrorism had been a

23     last-ditch effort to try and solve the Kosovo problem before the October

24     Agreements took place and the Kosovo Verification Mission arrived to

25     Kosovo.  I've discussed Pavkovic's comment about the plan was not to kill

Page 26900

 1     all, but we say the new year 1999 called for a new plan because this one

 2     in the light of what happened after October 1998 proved not to be

 3     successful.  The KLA came back just as strong or stronger than ever.

 4             Next.  Now, we have a number of statements that we say imply that

 5     there, indeed, was a plan.  We've talked earlier about Milosevic's

 6     comments on the 24th of October, 1998, talking about a final solution.

 7     You heard, I think, when Mr. Stamp was talking about Mr. Milutinovic's

 8     statement, and in our brief we have a reference to Mr. Stambuk's

 9     statements about massacres in Kosovo if NATO bombs.

10             Next.

11             We have Mr. Seselj on the eve of the war.  We played this one for

12     you:  "If NATO bombs us, we Serbs will suffer casualties, but no

13     Albanians will be left in Kosovo."  I think we played this when Professor

14     Markovic was here, and you'll recall Professor Seselj was a member of the

15     government, one of the deputy prime ministers at the time, and that was

16     what he said on the eve of the war.

17             Next, please.

18             Now, we've had a number of witnesses come in and claim that there

19     was no plan, a whole parade of military, police, and civilian witnesses

20     from -- called by the Defence who claimed that there was no plan.  I'll

21     say there's something that they all have in common.  One of -- one or

22     more of these three factors are listed on the slide.  They have a

23     personal motive to lie about that, to protect themselves or their

24     colleagues and friends or the institutions of which they were a member,

25     whether it be the VJ or the MUP or the Serbian Yugoslav government at the

Page 26901

 1     time; or 2, they were not told about the plan or were not in a position

 2     to know about it.  And as I think you heard, one of our state security

 3     witnesses, I think it was Mr. Mijatovic called by the Pavkovic -- or by

 4     the Sainovic Defence talked about -- in security work there's this

 5     principle of need to know, and you only tell people what they need to

 6     know.  And many of the people in the VJ and MUP who were involved in

 7     implementing the actions that resulted in the crimes on the ground would

 8     not necessarily have to be told about the plan in order for them to do

 9     their job.

10             In thirdly, some of those people who denied that there were a

11     plan were merely speculating based on inadequate information.  They were

12     at such a low level or in such a job or only there at an earlier time

13     where they were not in a position to really know whether or not there was

14     a plan.

15             Next.

16             Now, let me talk about the continuation of the Joint Command

17     because there's been -- first there was an argument there wasn't a Joint

18     Command; well, okay, there was, but it was only a coordinating body, and

19     it only worked up until October 1998.  But we say the evidence shows, no,

20     no; it continued on through the 1st of June, 1999, at least.  You saw in

21     Exhibit P2166, the minutes of the inter-departmental staff meeting, that

22     the conclusion was the participants agreed that the Joint Command should

23     continue to function.  P1197 is one of those Joint Command operations

24     report, and I think that's from November of 1998, so it shows the Joint

25     Command continued to exist.  P2945 was the interview of Colonel

Page 26902

 1     Stojanovic, the newspaper article which included a report he had written

 2     to the Joint Command about the security situation.  The VJ collegium of

 3     21 January 1999 where there's discussion about the events at Racak.

 4     You'll see that there was a reference -- a couple of references to the

 5     Joint Command by General Ojdanic in talking about what had happened down

 6     there.

 7             Then we have a number of Joint Command orders in March and April

 8     1999.  General Lazarevic testified and told us about those and his

 9     explanation of, Well, no, no, those were really Pristina Corps orders

10     even though they do say Joint Command on the top and they do say at the

11     bottom that the Joint Command will command these actions.  In addition,

12     there are references to Joint Command in VJ documents at all levels, at

13     the Supreme Command Staff level, at the 3rd Army level, and at the

14     Pristina Corps level.  P1487, P2017, and P2016 are some examples of that.

15     2016 is a 25 April 1999 combat report from the Pristina Corps, General

16     Lazarevic, to both the 3rd Army command and the Supreme Command Staff.

17     On page 2 of that document under activities of the Pristina Corps unit,

18     it notes:  "Operations of combing the terrain and breaking up Siptar

19     terrorist forces continue in line with the decision of the Joint Command

20     for Kosovo and Metohija."

21             The 29th of April, we see Exhibit P2017, which is from General

22     Pavkovic in the 3rd Army command to the Supreme Command Staff reporting

23     on events the day before, and at page 2 it mentions that measures were

24     undertaken to block the above sectors and carry out tasks in line with

25     the Joint Command decision or the Joint Command for Kosovo decision.

Page 26903

 1             In addition, as I indicated before, we have the testimony of

 2     General Vasiljevic about the 1st of June meeting.  With regard to General

 3     Pavkovic himself, in his suspect interview he makes reference to the fact

 4     that there were at least a couple of informal meetings of the Joint

 5     Command in 1999, and General Lukic in his suspect interview made

 6     reference to meetings of the Joint Command in 1999, including after the

 7     start of the NATO campaign.

 8             Finally, P1317 which we looked at earlier, the RFA response from

 9     Yugoslavia noted several unofficial meetings after October 1998.  All of

10     this evidence we say clearly shows that the Joint Command continued to

11     exist up to and including the 1st of March.

12             Next.

13             Pavkovic arranged a number of arguments --

14             JUDGE BONOMY:  Is that a --

15             MR. HANNIS:  Yes.

16             JUDGE BONOMY:  Was that a deliberate reference to the 1st of

17     March, or was that a slip of the tongue?

18             MR. HANNIS:  It was supposed to be the 1st of June.  If I said

19     March, I misspoke.

20             JUDGE BONOMY:  Thank you.

21             MR. HANNIS:  Thank you.

22             Among the Defence arguments are that there's no 7(1) liability

23     because he had no criminal intent.  He didn't plan, order, instigate, or

24     aid and abet any crimes.  He didn't know of any.  We say that the

25     totality of the evidence and as detailed in our closing brief makes it

Page 26904

 1     clear that that's not the case.  He denies participation in the JCE

 2     except by one of the excluded means.  We think that's not a correct

 3     understanding of the law.  He claims no link to the direct perpetrators,

 4     but we say the law doesn't necessarily require that, but we also say that

 5     he did have a direct link to the perpetrators because those forces were

 6     in his chain of command.

 7             The Defence -- the military accused have tried to I think conjure

 8     up a bit of a straw man in saying, Well, my guy was nine levels removed

 9     from the squad member who carried out that crime.  Well, yeah, but that's

10     a little bit exaggerated.  I think that should be condensed a little, and

11     we're talking about two or three levels primarily.  But you've seen from

12     the VJ collegiums and from the combat reports and from the orders going

13     up and down the chain that the high levels, they were well-informed about

14     what was going on.  You've seen at some of these VJ collegium, they're

15     discussing fairly minute events and incidents.  It's strange credibility

16     to believe that they didn't know about these, and clearly Pavkovic knew

17     about crimes being committed.  You see in our brief and you've heard the

18     evidence about when he was summoned to speak to General Ojdanic,

19     Vasiljevic, and Gajic at that middle-of-May meeting to discuss crimes

20     that apparently had been stuck in the bottle-neck of the 3rd Army and not

21     reported up the Supreme Command Staff prior to that date.  And Pavkovic

22     comes to that meeting and talks about how he's had conversations with

23     General Lukic and there are 800 bodies above the ground in Kosovo not

24     accounted for and the army takes responsibility -- or at least the army

25     concedes that 200-and-some of those bodies were in their area of

Page 26905

 1     operations and 300-and-some were in MUP's and the others, and nobody was

 2     claiming any responsibility for.  So he knew about it.  He knew about

 3     crimes.

 4             And no plan, and we've talked about that, and no 7(3), no

 5     effective control over the MUP.  We say if you accept that he didn't have

 6     any effective control over the MUP, in one way he at least failed to

 7     prevent future crimes by continuing to order his VJ units to support the

 8     MUP, support MUP units which he had knowledge had committed crimes in the

 9     past.  And by his own document, P1459, the 25 May 1999 report about which

10     there's much controversy about whether that was indeed written at that

11     time and sent up the chain at that time, but in which he indicates that

12     MUP units and MUP members were committing crimes against Albanian

13     civilians:  Murder, rape, looting, robbery.  And yet, after May 23rd, the

14     VJ continued on several occasions to support MUP units engaged in

15     anti-terrorist operations, combat actions.  I think it's in evidence

16     Colonel Kotur's order regarding Operation Sekac directing MUP units to

17     engage in those actions.

18             Inadequate measures were taken as regard Pavkovic's VJ

19     subordinate units when he was aware of crimes, and that's detailed in our

20     written brief.

21             Regarding the next slide -- well, I'm sorry, before we get to

22     General --

23             JUDGE BONOMY:  Mr. Hannis, before you move on can I ask you about

24     --

25             MR. HANNIS:  Yes.

Page 26906

 1             JUDGE BONOMY:  -- one thing there that I've been trying to figure

 2     out.  Page 26, line 17, when you're summarizing General Pavkovic's

 3     position:  "He denies participation in the JCE except by the excluded

 4     means.  We think that is not a correct understanding of the law."

 5             What do you mean by that?

 6             MR. HANNIS:  I think in General Pavkovic's brief he argued

 7     that -- may I grab my binder?

 8             There was a bit of a confusing argument to me, and perhaps

 9     Mr. Ackerman can help me with the paragraph -- all right.  I'm sorry.

10     Your Honour, at paragraph 42, page 12, of Pavkovic's final brief, he

11     said:  "The allegation that Pavkovic committed acts by his participation

12     in joint criminal enterprise requires the Prosecution to prove that he

13     was a perpetrator of the acts."  He says:  "One who 'commits' is a direct

14     perpetrator of the act.  Any other interpretation would change the JCE

15     concept from a theory of liability into a new criminal offence.  That he

16     planned, instigated, ordered, or aided and abetted is specifically

17     excluded by the indictment from JCE consideration."

18             And he goes on and says:  "It's very difficult to imagine what it

19     is the Prosecution contends that Pavkovic could have done from his

20     position as 3rd Army commander that would constitute a JCE commission of

21     a crime excluding planning, instigating, ordering, or aiding and abetting

22     in the process."

23             So I read that to mean that he was suggesting that the only way

24     that Pavkovic could have committed anything was by planning, instigating,

25     ordering, or aiding and abetting.

Page 26907

 1             JUDGE BONOMY:  And he may be saying, firstly, that your

 2     indictment only alleges that his role in the JCE was in relation to

 3     commission, and he may also be saying that the law confines the conduct

 4     that a person may be responsible for as part of a JCE to something that

 5     can be described as commission.

 6             In paragraph 18 of your indictment you say:  "By using the word

 7     'committed' the Prosecutor does not intend to suggest that any of the

 8     accused physically perpetrated any of the crimes.  Committing in this

 9     indictment when used in relation to the accused refers to participation

10     in a joint criminal enterprise as a co-perpetrator, either directly or

11     indirectly."

12             MR. HANNIS:  And I don't understand the law to say that

13     commission cannot include planning, instigating, ordering --

14             JUDGE BONOMY:  So your argument is that you can as a planner

15     commit --

16             MR. HANNIS:  An act that is a contribution to the JCE.

17             JUDGE BONOMY:  And that's something that the jurisprudence

18     doesn't really make clear at the moment; is that --

19             MR. HANNIS:  Not to my knowledge.

20             JUDGE BONOMY:  Yeah.

21             So by reference -- I was really concerned about the reference to

22     the excluded means, and that's what I thought it was, but I wanted to be

23     clear about that.  Thank you.

24             MR. HANNIS:  Okay.

25             JUDGE BONOMY:  And just give me one moment before you continue.

Page 26908

 1             MR. HANNIS:  Sure.

 2                           [Trial Chamber and legal officer confer]

 3             JUDGE BONOMY:  Please continue, Mr. Hannis.

 4             MR. HANNIS:  Thank you, Your Honour.

 5             A few more points raised in Pavkovic's written submission that I

 6     wanted to address before moving on to General Lazarevic.  One claim is

 7     the fact that some people were allowed to stay shows that there was no

 8     plan.  As I said before, we're not alleging that the intention of the

 9     accused was to expel the entire population, only a substantial portion.

10     And we say 700 to 800.000 is a substantial portion of that population.

11             Another argument asserted is that the perpetrators were not VJ,

12     so my guy, Pavkovic, is innocent.  First of all, we're saying that the VJ

13     and the MUP acted in coordination.  This is a JCE case.  We have argued

14     that the direct perpetrators were either members of the JCE and shared

15     the intent or they were used by the members of the JCE.  We say it's

16     sufficient for you as the Trial Chamber to find that a link existed

17     between the direct perpetrators and one member of the JCE, either VJ or

18     MUP.  And in the alternative to our JCE charge, we've charged the

19     military accused with aiding and abetting.  They lent material and moral

20     support to the perpetrators of the crimes who were not the VJ.  By

21     implementing instructions received from Ojdanic and through his

22     involvement in the Joint Command, Pavkovic lent material and moral

23     support to the perpetrators of the crimes.

24             Now, with that I would now turn to General Lazarevic.  General

25     Lazarevic, I see he's not here today, he was the Pristina Corps

Page 26909

 1     commander, Chief of Staff in 1998.  During that time he attended at least

 2     five Joint Command meetings as we see from P1468.  He signed the decision

 3     for the Slup-Voksa Joint Command -- joint action with the MUP in August

 4     1998 that was to be commanded by the Joint Command, and he was the

 5     Pristina Corps commander then, in 1999 [sic], and he told you he or his

 6     staff drafted those Joint Command orders that we see in March and April

 7     1999 from which we say the crimes alleged in the indictment flowed.

 8             He contributed to the joint criminal enterprise by commanding,

 9     planning, ordering, and coordinating activities of the Pristina Corps and

10     subordinate units in Kosovo.  He implemented the Joint Command orders.

11     He coordinated joint VJ and MUP combat actions in both 1998 and 1999.  He

12     participated in incorporating volunteers into the Pristina Corps.

13             With regard to his command of the Pristina Corps, first of all we

14     note that the Pristina Corps chain of command functioned well, with

15     orders going down the chain to subordinate units and reports coming back

16     up.  Later on, Lazarevic exercised control over the subordinated military

17     territorial detachments, and some of those units engaged in combat.  This

18     is set forth in more detail in our written brief at paragraphs 926 to

19     932, and one example of the military district or the military territorial

20     detachments being engaged in combat is found in Exhibit 5D1074 from the

21     15th of April, 1999.  You'll see a reference to that.

22             Next slide.

23             We say he implemented Joint Command orders.  First of all, he

24     attended some of those Joint Command meetings in 1998.  He signed the

25     decision for the Voksa action in August 1998 that was to be commanded by

Page 26910

 1     the Joint Command, and then he told you that he and his staff drafted

 2     those Joint Command orders which are reflected in the maps we showed you

 3     earlier in describing the pattern of the crimes committed in March and

 4     April of 1999.

 5             Next slide.

 6             He coordinated joint VJ and MUP combat.  He told us that there

 7     was full cooperation and coordination of the VJ and the MUP in both 1998

 8     and 1999.  One of the prime examples of this in 1999 was described

 9     yesterday when I was talking to you about General Ojdanic and his

10     directive regarding Grom 3.  We saw that come from Ojdanic and the

11     supreme -- I'm sorry, the General Staff at that time down to Pavkovic,

12     who then issued his own Grom 3 order, and Lazarevic in P2808 on the 16th

13     of February issued his own version of that to subordinate brigades.

14             And those directions, those orders, were seen and carried out at

15     the ground level.  You heard testimony from Colonel Zivaljevic from the

16     MUP, how he saw the contents of those orders in his meetings with Colonel

17     Gergar and when he saw the map excerpt, and those actions were carried

18     out.  Djakovic also told you how Exhibit 6D716 from the 17th of February,

19     1999, was drafted by him to help MUP in knowing how to write these kind

20     of orders up.  And in Exhibit P1990, the MUP staff meeting for the 17th

21     of February, 1999, you will recall, I think it's at page 2, there's a

22     reference to:  "Staff plans once ordered to carry out three mopping-up

23     operations in Podujevo, Dragobilje, and Drenica areas."  And it noted

24     that they had allotted 4.000 police, 70 OPG and 900 reservists for that

25     eventuality, which we say then did occur later on, and that was part of

Page 26911

 1     what happened in early -- or in late March 1999 after the onset of the

 2     NATO air-strikes and resulted in the crimes charged in our indictment.

 3     P1503 is a Pristina Corps order of 27 May 1999 to crush and destroy the

 4     Siptar terrorists in the Prekaze sector.  I put this one out because this

 5     relates to the argument I was raising earlier.  It's addressed to the

 6     command of the MUP.  It was signed by Lazarevic only three days after he

 7     wrote his own report in Exhibit P1723 on the 24th of May to Pavkovic,

 8     complaining about the conduct of the MUP, particularly at the mixed

 9     check-points, and how the MUP were engaging in crimes against civilians.

10     And in spite of that, three days later, in spite of this problem, he's

11     calling for joint action with the MUP.

12             Next slide.

13             We say that Lazarevic was also a contributor to the joint

14     criminal enterprise by incorporating volunteers into the VJ.  He directly

15     was involved in approving and assigning volunteers.  He had notice of

16     their greater propensity for criminal behaviour, and yet still as of 18

17     April 1999 the Pristina Corps had at least 1.259 volunteers under

18     Lazarevic's command.

19             Exhibit 5D825 is a combat report of the 175th Brigade, infantry

20     brigade.  It's dated the 31st of March, 1999, and if we could go to the

21     next slide, I think we actually have an excerpt from that document.  This

22     is from Colonel Petrovic to the Pristina Corps command, and he notes:

23     "After certain volunteers showed indiscipline and other criminal

24     activities, the situation is slowly becoming more stable.  Eight

25     volunteers for whom there are reasonable grounds to suspect that they

Page 26912

 1     committed the crime in Zegra village have been arrested."

 2             We heard some details about that crime and a number of murders

 3     and robberies that were committed by volunteers in the 175th.  I note

 4     that Colonel Petrovic tells us that:  "The commander of the Pristina

 5     Corps," General Lazarevic, "approved the sending of 24 volunteers who

 6     wanted to be immediately involved in combat operations to the 243rd

 7     Mechanised Brigade.  Some said they wanted to go back home and they'll be

 8     disarmed and taken back.  There are 32 of them so far.  Some volunteers

 9     said they wanted to link up with their sons ... and their requests shall

10     be met."

11             I say this may relate to something you saw in one of the evening

12     briefings where General Gajic was reporting about a situation with

13     volunteers with which there had been some problems and had been sent

14     back.  But this shows that General Lazarevic was aware of volunteers and

15     approved where they would be sent, in this case to the 243rd so they

16     could immediately be involved in combat operations.

17             There's another portion of this I want to refer you to, same

18     document.  Colonel Petrovic notes that:  "Since there are in the zone of

19     responsibility of the brigade very many units and armed individuals which

20     have not been included in the initial decision received from the Pristina

21     Corps command, we ask that you give us information about all units whose

22     deployment in the zone of the 175th Infantry Brigade have been approved

23     by you so that we can engage our forces properly ..."

24             So this is notice to General Lazarevic about the forces that are

25     within the areas of responsibility of his subordinate units.  This

Page 26913

 1     relates to the arguments from the Defence about perpetrators and the

 2     suggestion that there are rogue elements perhaps engaged in these crimes.

 3     As Ms. Kravetz said from the pattern of the crimes and as we showed you

 4     on the map reflecting Colonel Delic's post-action analysis in the area of

 5     Bela Crkva, Celina, Mala Krusa, et cetera, there were no other

 6     significant bodies of armed men speaking Serbian and committing these

 7     crimes other than VJ and MUP and individuals under the control of our

 8     accused.

 9             4D371 is a Pristina Corps combat report from the 1st of April,

10     1999.  It notes the security situation is stable, but "impaired to some

11     degree by incidents of crime ..."

12             And also:  "Volunteers, reserve contingents of the military

13     territorial detachments and free individuals have the greatest influence

14     on incidents of crime."

15             Notice, too, evidence indicating that General Lazarevic was aware

16     of the presence of these individuals and the propensity for criminal

17     activity by such persons.  5D215 is another Pristina Corps combat report

18     from the 18th of April, 1999, which reflects that there were 1.259

19     volunteers in the area of responsibility of the Pristina Corps command on

20     that day.  General Lazarevic raises some of the same kinds of defence

21     arguments that Pavkovic and Ojdanic did, first of all, saying there were

22     no crimes by VJ units, that there was no plan, no participation in the

23     JCE, and no 7(3) responsibility.  We address all of those in much greater

24     detail in our written submission.

25             But next, I have to make a comment about General Lazarevic.  You

Page 26914

 1     have to deal with the issue of his credibility.  We say he was not

 2     completely candid with you about everything.  In particular, I suggest to

 3     you that he was not completely candid about the Joint Command, about his

 4     knowledge of the Joint Command and his role or his participation with the

 5     Joint Command.  You saw what he said in his initial interview with

 6     Mr. Coo when he first came to The Hague, and perhaps it was only a matter

 7     of memory, but he had to be shown documents with his name on them before

 8     he came to remember that he had gone to, perhaps, a Joint Command meeting

 9     or two or three or, as it turned out, actually five in 1998.  And for me,

10     one of the most compelling incidents of what I suggest was not complete

11     candor with you related to Exhibits P1966 and P1967.  These are the Joint

12     Command orders number 455-56 and 455-56/1.  I think they're both dated

13     the 22nd of March, 1999, just a couple of days before the war began,

14     calling for operations to crush the Siptar terrorists I think in the Malo

15     Kosovo area.  And 1966 is a Joint Command order; no signature at the end,

16     just the typewritten "Joint Command."

17             1967 is signed by Lazarevic, and that's the one that's entitled

18     Amendment To 455-56 or Exhibit P1966.  1966 has the full complement that

19     you see in these standard orders from item 1 through 12, you know,

20     describing the enemy and the neighbours and the task and logistical

21     support and command and control, et cetera.  The amendment only has I

22     think items 4 and 5, what's been decided in the task for the assigned

23     units.  We discussed that with General Lazarevic, and he explained, Well,

24     when you're doing an amendment you don't re-write the whole thing; you

25     only change the part that needed to be changed.  And he explained what

Page 26915

 1     needed to be changed was I think the date or the time for commencing the

 2     operation, and there was some change in the specific task as to where a

 3     unit started from and perhaps which unit was going to do a part of the

 4     action.  And so I said, Well, then, you sign this amendment titled "Joint

 5     Command," you made no change to the original, 1966, which called for

 6     these actions to be commanded by the Joint Command; and the argument I

 7     tried to put to him was, So therefore you see no need to make a change in

 8     the order and you agree that these operations should be commanded by the

 9     Joint Command?

10             And he explained to me, he said, No, no, no, that wasn't

11     necessary because, you see, I had changed the command post, and anybody

12     would know that the Pristina Corps command was at that command post.  But

13     if you look at that document, that's not correct.  P1966 indicated where

14     the command post from which the actions were to be commanded would be,

15     and I think it said the peacetime location of the Pristina Corps command.

16             But in the amendment for each unit that is engaged, there's a

17     separate command post, which is typical in these orders.  If there's the

18     125th Brigade, there's going to be a command post from where they run

19     their operations.  He tried to argue that the command post for the

20     Pristina Corps was in the same place as the command post for the 354th

21     Brigade.  And when he said that I thought, Oh, gosh, maybe he's right.

22     But then I looked at it and, no, that's not true, and there's no way

23     someone receiving that order would know that the Pristina Corps command

24     was commanding that whole operation from the command post for the 354th

25     when Colonel Zivanovic came here to testify, commander of the 125th, we

Page 26916

 1     showed him those two documents and asked him that, and he told you that,

 2     no, from this he wouldn't know where the command post was.

 3             Also, I think General Lazarevic was not honest with you about the

 4     armed non-Siptar population and the inclusion in many of those directives

 5     and orders to engage the armed non-Siptar population in carrying out

 6     those tasks, in defending the non-Siptar settlements and population and

 7     otherwise.  He tried to explain to say that term was really sort of an

 8     artefact left over from earlier days when they used to have All People's

 9     Defence as part of this system, and that, really, it was only the civil

10     defence and/or the civil protection.  I think he sort of waffled on his

11     answer on that.  I asked him to explain, Well, why didn't you just say

12     that?  His answer was, Well, I get my order from above, and I can't

13     change that part of the order.

14             Yesterday when we talked about the April 9th directive from

15     General Ojdanic down to Pavkovic and Grom 4, you saw that General

16     Lazarevic had written his version of Grom 4 four days before he got any

17     written order from Pavkovic about that, and in General Lazarevic's

18     version he writes, "Engage the armed non-Siptar population.

19             So I suggest to you, he knew better who that was, but he didn't

20     want to tell you about that.

21             Another area that I'm not sure how that falls out relates to

22     Meja.  You've had the testimony of Nike Peraj about General Lazarevic

23     being present in the area where those operations took place at the end of

24     April 1999, and there was detailed information by the Defence to rebut

25     Nike Peraj and say, He must be lying about that, that can't be true

Page 26917

 1     because I, General Lazarevic, was not there on that day.  The day before,

 2     I was in Pristina at this awards ceremony, et cetera, et cetera.  There

 3     are a couple of possibilities here; one is that Nike Peraj could be off

 4     by a day, but we also have evidence that General Lazarevic was in that

 5     area on I think the 28th of April.  In the combat report of the 125th

 6     Motorised Brigade, it notes that General Lazarevic is at their location.

 7     Zivanovic told us where that was, and it's in the area.  They say that

 8     Lazarevic was there between I think 9.00 in the morning and 12.00 noon,

 9     but the Defence presented another exhibit that shows General Lazarevic

10     some many kilometres away, I suggest perhaps an hour away, at 9.00

11     because he notes some commander from some element of the 37th Brigade

12     stuck in a motor vehicle in the creek, and he sends a warning to all

13     others not to be -- about that.  So either he can be at two places in one

14     time or there's something not right with those documents.

15             And P1723, the report from Lazarevic to Pavkovic about the MUP

16     crimes, this I'm afraid, Your Honour, is still a bit of mystery for me.

17     I don't know how Your Honours are going to deal with P1723 on the 24th of

18     May and P1459 on the 25th of May, which is Pavkovic's report about the

19     MUP committing crimes and that evidence suggesting that the document was

20     put into archives after the fact, and there are a couple possibilities.

21             In the end, I don't know that it makes any difference on your

22     final judgement in this case, but it is an issue that we all have to

23     contend with, and it's there.  Perhaps Lazarevic wrote his report on that

24     date and sent it up and Pavkovic didn't write his until later.  Perhaps

25     Lazarevic and Pavkovic worked together in doing that.  Perhaps both

Page 26918

 1     documents were back-dated.  There is an issue, not only with Pavkovic's

 2     P1459 and what we see from the archives of the Supreme Command Staff, but

 3     with regard to Lazarevic's exhibit, P1723, there is something with the

 4     numbering of that document.  It has a routing number, and we saw in the

 5     455 series of documents that there are two 455 numbers with -- documents

 6     with the same number, and oddly enough, one of those is that 24 May

 7     report.

 8             He certainly would have a motive not to tell you the truth about

 9     that if he was involved in the joint criminal enterprise.  He's not going

10     to take the stand and tell you that's the case.  He's not going to sit

11     through two years of trial when he could tell you that at the beginning

12     and be judged guilty and move on from that.  He can't have enjoyed our

13     company that much.

14             Next slide, please.

15             JUDGE BONOMY:  Could I just have a moment, Mr. Hannis.

16             MR. HANNIS:  Yes.

17                           [Trial Chamber and legal officer confer]

18             JUDGE BONOMY:  Please continue, Mr. Hannis.

19             MR. HANNIS:  Thank you, Your Honour.

20             Next, I wanted to speak briefly connected to the armed non-Siptar

21     population.  We have Joint Command instructions for the defence of

22     populated inhabited areas.  These documents came out in late July 1998,

23     and they're referred to as the Joint Command instructions.

24             Your Honours, I have about four different documents I want to

25     show you.  Perhaps we could take the break a couple minutes early.

Page 26919

 1             JUDGE BONOMY:  All right.  We shall do that, Mr. Hannis, and

 2     we'll resume at 11.15.

 3             MR. HANNIS:  Thank you.

 4                           --- Recess taken at 10.43 a.m.

 5                           --- On resuming at 11.17 a.m.

 6             JUDGE BONOMY:  Mr. Hannis.

 7             MR. HANNIS:  Thank you, Your Honours.

 8             I'll try to go quickly through this next section.  I was going to

 9     cover it in more detail, but I think in the interest of time for

10     Mr. Stamp and for my final remarks, I'll speed up.

11             I did want to talk about Joint Command instructions for the

12     defence of populated and inhabited areas.  We did discuss this with some

13     witness who came in.  P2086, 1064, 1063, 1065, and 1067 are a series of

14     documents from late July 1998 relating to this, and it sheds some light,

15     we say, on the issue of the armed non-Siptar population, the reserve

16     police, the civil protection, the civil defence, exactly who these people

17     were and how they fit into the system.  I'm not going to take the time

18     now to go into the specific details of each of those documents, and as I

19     say they are from late July 1998, but we see we had no evidence

20     indicating that these instructions changed or were not still in effect at

21     the time that the crimes occurred in March, April, and later in 1999.

22     And I think they're consistent with the evidence from some of the crime

23     base witnesses who talked about seeing some of their local labourers in

24     uniforms and at the scene when some of the crimes occurred.  So I would

25     urge Your Honours to look at those exhibits in some further detail when

Page 26920

 1     you are reaching your judgement in this case.

 2             So I'll ask Mr. Reid --

 3             JUDGE BONOMY:  You referred to these as Joint Command

 4     instructions.

 5             MR. HANNIS:  Yes, Your Honour.  Exhibit P2086 --

 6             JUDGE BONOMY:  If we just see that one as an example.

 7             MR. HANNIS:  Yeah.  We can show you that one.  It's in Sanction,

 8     I think, P2086.  It is entitled:  "The instructions for the defence of

 9     inhabited places," and you'll see at the top it says:  "Joint Command for

10     Kosovo and Metohija."  I don't know if you have it on your screen yet.

11             JUDGE BONOMY:  Not yet.

12             MR. HANNIS:  Yeah, it looks like you have the B/C/S version on

13     the left.  And 2086, we say, is the item that is referred to in the cover

14     letter, P1064, and it refers to the instructions as having been issued by

15     the Joint Command for Kosovo and Metohija.

16             If you want to see P1064 --

17             JUDGE BONOMY:  No, no.  That's all that's required, Mr. Hannis.

18     Thank you.

19             MR. HANNIS:  Okay.

20             Then I'll ask Mr. Reid if we can fast-forward to the exhibit

21     regarding Izbica.  I did want to go into just a little detail about

22     Izbica and about Meja and Korenica.  Izbica, you've heard testimony from

23     Mr. Thaqi and Mustafa Draga and a few other witnesses about the crimes

24     that occurred at Izbica, and in connection with that, I would ask you to

25     look at Exhibit P1968, was a Joint Command order for operations in that

Page 26921

 1     area.  That Joint Command order is dated the 24th of March, 1999, and it

 2     bears confidential number 455-73.  And if you look at the task for the

 3     various units to be engaged in that operation, we have drawn on the map

 4     where those units were located and where their movements were to take

 5     place.  The first slide we will show you is where Izbica is located, and

 6     this is in the Drenica sector.  The next item we'd like to show you,

 7     those circles -- these are the five different VJ units or elements of VJ

 8     units that were involved in this Joint Command order, and the circles

 9     show the locations from which they were starting.  The next slide, we

10     show you where their movement was to take place according to the Joint

11     Command order.

12             And you'll see that these operations are pushing -- it seems to

13     me, it's logical that it would be pushing the -- civilian population in a

14     direction to move away from these, and that's consistent with the

15     testimony of the crime base witnesses, and you'll see the elements of the

16     37th Brigade moving right by Izbica.  You can look at the map in Exhibit

17     P615 for scale, and those last two yellow circles regarding Tactical

18     Group 252, I think the bottom one is for the village of Vosnjak, or maybe

19     it's the top one.  I can't read that on my map here, but that's less --

20     that's a kilometre, basically, or less from Izbica.  And you saw in one

21     of the daily combat reports from the 37th Motorised Brigade that the day

22     before the crimes happened in Izbica that they requested instructions

23     from the Pristina Corps command about what to do because they anticipated

24     to come across thousands of civilian refugees.  But the following day

25     there's no report; there's no mention of that.  So we ask you to take a

Page 26922

 1     look at that evidence, have a look on this map, and we say this clearly

 2     shows that the only forces in that area at that time were the VJ and MUP

 3     forces carrying out actions in coordination with the instructions from

 4     the Joint Command in P1968.  The circles are locations specified in the

 5     Joint Command order as areas where the Siptar terrorist forces are to be

 6     destroyed.  And the lines and the arrow show the direction and axis of

 7     movement for those specific units.

 8             And with regard to Meja and Korenica, I just ask you to recall

 9     the testimony of some of the victim witnesses from that area.  On the

10     screen you have a picture of Lizane Malaj who testified for you early in

11     this case.  She testified about her husband and son being taken out of

12     the house and shot in their front yard while she was then told to go to

13     Albania, go down the road, and she told you about her journey leaving

14     Kosovo subsequent to the killings of her family members.

15             Next slide, please.

16             This is a map that we saw with Nike Peraj, but it was also I

17     think corroborated by witness K-73, and we heard about that operation,

18     which was a joint VJ and MUP operation.  It included elements of the 63rd

19     Parachute Brigade, moving from the north/north-west, in a

20     south/south-easterly direction, and we heard from the insider witness

21     about how they were directed to expel people from their homes, and that's

22     consistent with what Lizane Malaj, Merita Dedaj, Martin Pnishi and other

23     witnesses have told you about that operation at the end of April, 1999.

24             The next map.

25             This is a map showing Korenica, and the markings made on here in

Page 26923

 1     blue and red were made by Colonel Vukovic - or then, at the time of the

 2     event, Major Vukovic - of the 2nd Motorised Battalion of the 549th.  And

 3     we saw some documents concerning where his unit was located and what

 4     their tasks were on that day and put him at the graveyard at the

 5     outskirts of Korenica.  As you know from the evidence and looking at the

 6     map, Korenica is not a big place, and I suggest to you there is no way

 7     that he could have been at that location on that date as he's marked on

 8     the map and not been aware of what was happening at Korenica to Lizane

 9     Malaj and her family and the others and the shootings that were going on

10     in the village and the killings that were occurring and the women and

11     children being directed down the road.  He denied seeing anything like

12     that, but I suggest to you that that is impossible and that he had a

13     motive not to be truthful to you about that and that you should be highly

14     suspect of his testimony.  We had some evidence that he himself had been

15     subject of a military judicial proceeding in connection with his

16     directing one of his subordinates to make a false entry about the use of

17     30 litres of -- or 30 gallons or 300 gallons, I can't remember the

18     amount, of fuel.  So I suggest to you that that Lizane Malaj is a more

19     reliable witness and the document is a more reliable piece of evidence

20     about who was there at the time those crimes occurred in Korenica and in

21     Meja.

22             Next slide, please.

23             Now, again, the argument is made that there is no plan, but we

24     say when you consider the evidence as a whole it's clear that there was a

25     plan, that General Lazarevic participated in the joint criminal

Page 26924

 1     enterprise, and that he should be responsible pursuant to 7(3).

 2             I am going to conclude my remarks concerning General Lazarevic

 3     and turn the podium over now to Mr. Stamp to talk to you about General

 4     Lukic.  I'll be back one more time just to sum up on some considerations

 5     about evidence, and then we'll be done.  Thank you, Your Honour.

 6             JUDGE CHOWHAN:  Well, I'm sorry.  Can I ask you to elucidate

 7     something which is bothering my mind.  While you were talking -- while

 8     you were speaking, you made a reference to the storage of the documents

 9     pertaining to the Joint Command in a house or in some place, and then

10     according to yourself this building was destroyed or burnt.

11             Now, can you further elucidate on this with reference to

12     something, and what is your own stand on this and so on?  Thank you.

13             MR. HANNIS:  Well, as far as I recall, the evidence, Your Honour,

14     is from the documents and the witnesses.  The response to our RFA for

15     documents concerning the Joint Command suggested that the place where

16     those documents might have been stored, those buildings were destroyed.

17     Now, I guess that means, Well, that's probably where the documents were,

18     and since the build was destroyed we can't find them.  They may have been

19     kept somewhere else.  We don't know.  In P1468, I think on the 28th of

20     October, that excerpt we showed you from I think page 163,

21     Mr. Andjelkovic was talking about, Where are we going to keep our

22     documents, and Mr. Sainovic suggested that since they couldn't be kept in

23     the district building - I think that's where the tech headquarters were -

24     that they could be kept in the MUP building.  If he's talking about the

25     MUP building in Pristina, we do have evidence that the MUP building in

Page 26925

 1     Pristina was bombed in March 1999.  So some of the documents that may

 2     have remained in Pristina may have been destroyed in that bombing, but

 3     other documents that went to President Milosevic's chief of cabinet, we

 4     think that's probably Colonel or General Susic who kept the minutes of

 5     not only the SDC meetings but also the inter-departmental staff meeting

 6     that's in Exhibit P2166.  Some Joint Command documents may have been kept

 7     there, but -- and I don't recall the evidence about this, and I'm sure my

 8     colleagues will call me on this if I'm stating something that's not

 9     accurate, but I seem to recall there was some evidence that we had made a

10     request for documents from the military cabinet of President Milosevic

11     and we were told those records no longer existed, that either they had

12     been removed and couldn't be located or that they had been destroyed

13     pursuant to standard procedure after a certain period of time.  That's to

14     the best of my recollection, Judge.  I don't know if that answers your

15     question.

16             JUDGE CHOWHAN:  No, because this is something very important, but

17     I think a lot is being based on assumption.  Am I right in thinking that

18     way?

19             MR. HANNIS:  Well, in the absence of hard documents, sometimes we

20     have to rely on the best inference we can draw from what we do have, yes.

21             JUDGE CHOWHAN:  Thank you very much.

22             MR. HANNIS:  You're welcome.

23             All right.  I'll turn over to Mr. Stamp now.  Thank you.

24             JUDGE BONOMY:  Thank you, Mr. Hannis.

25             Mr. Stamp.

Page 26926

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

 2             The main thrust that can be discerned, I think, from the closing

 3     brief presented on behalf of Mr. Lukic is really that he did not possess

 4     any authority over the police in Kosovo, the SUPs, police attached to the

 5     SUPs, the special units.  He did not have any authority to order or plan

 6     or instigate or aid and abet any of them in any of their activities.  The

 7     submission was made in the brief.

 8             Seriously, I believe that the MUP staff was an innocuous police

 9     postbox in Kosovo, and they base that submission on the evidence of many

10     former subordinates of Mr. Lukic who testified on his behalf, including

11     Mr. Adamovic, Mr. Mijatovic, Mr. Vucurevic.  I discussed some of them

12     yesterday and their credibility and the credibility of these witnesses,

13     so clearly troubling, to say the least, does not make the evidence of any

14     of them in regard to the -- to the authority of the MUP staff any more

15     believable since several of them came to say that it was innocuous, it

16     had -- it was just some people gathering together for meetings but who

17     had no real authority.

18             The main difficulty I think many of these witnesses had, if one

19     reviews the record, is that they could not reconcile their evidence that

20     the MUP staff was powerful -- powerless with the evidence of P1502, the

21     MUP staff mandate issued by the MUP Minister Stojiljkovic in June 1998,

22     and which in almost exact terms was re-issued at the end of May 1999.

23     Nobody could suggest that the minister when he did -- when he issued

24     those declarations, which are fully discussed in the Prosecution's brief,

25     was engaging in an idle project even if he had nothing better to do.

Page 26927

 1             But more than that, there are several minutes of the MUP staff

 2     meetings, again, discussed in the closing brief, where the chiefs of the

 3     SUPs, the commanders of the special units in Kosovo, including the PJP,

 4     the SAJ, the JSO, members of the RDB, are present, in attendance,

 5     reporting to Lukic and receiving instructions from him.  The MUP minutes

 6     establish that he in Kosovo along the Prosecution agreed with General

 7     Stevanovic when he came down, exercised authority over these commanders

 8     and chiefs and, therefore, their respective units and organization.  And

 9     these documents, it is submitted, really speak for themselves.  I don't

10     think the authenticity of these documents are in any real question.

11             The Defence spent some time discussing the proposition that there

12     were different structures for the MUP in Kosovo, that the SUPs had their

13     own reporting chain up to the -- to Belgrade, and this was to some

14     degree -- or this was separate from the MUP staff.  Your Honours, the

15     Prosecution does not say that the MUP staff abrogated the entire MUP

16     chain in Kosovo.  The SUP chiefs still reported to Belgrade, and PJP

17     commanders of units attached to the SUPs still reported to the SUP

18     chiefs, and PJP commanders of the larger PJP units still reported to

19     assistant Minister Stevanovic.  However, when they were operational in

20     Kosovo, as the MUP staff mandate, P1505, provides, the MUP staff

21     coordinated them, governed them, and controlled them; and that, it is

22     submitted, is quite clear from the evidence.  Thus, there was a dual or

23     parallel chain, and the fact that there is a dual or parallel chain does

24     not mean that one chain, the chain up to Belgrade, has to be excluded

25     necessarily.  This dual and parallel chain of authority is borrowed by

Page 26928

 1     what Lukic himself said in his OTP interview.  He -- and it is -- I

 2     commend the interview to Your Honours' review.  He accepted that he was

 3     responsible for the MUP in Kosovo when they were engaged operationally,

 4     and indeed so, it is submitted unequivocally.  His interview is P948.

 5             In paragraph 13 of the Lukic closing brief, they raise somewhat

 6     vaguely challenges about this exhibit.  This has been a matter that has

 7     been subject to intense litigation in this case over two years, and the

 8     Lukic Defence, it is submitted, has not presented anything even slightly

 9     credible that the -- that P948, the interview, as it stands now does not

10     accurately reflect the words of Mr. Lukic on any substantive issue.  And

11     the Lukic Defence, I don't think, or has not said yet that the formal

12     assistant minister of the police, Lukic, was coerced into making these

13     statements, did not understand what he was saying, or the -- on

14     substantive grounds any of the areas are inaccurate.

15             Many of the statements are dealt with at various places insofar

16     as they are relevant in the Prosecution's closing brief, but some of

17     them, in particular I'd like to highlight as could be seen on the slide

18     before the Court, I should point out that the vast majority of the

19     references can be found in the Prosecution's closing brief from paragraph

20     211 and from paragraph 1004.  Lukic was aware of and understood the scope

21     of the MUP staff mandate, P1505, and further on he said that the task of

22     the task was to coordinate the work of these units, and in this part,

23     these units, the special police units had practically dual responsibility

24     to the commander, that is, the commander of the units or the SUP chiefs,

25     and to the head of the staff, that is to himself.

Page 26929

 1             Secondly, he agreed that he had parallel responsibility over the

 2     PJP units, which was a main operational unit engaging Kosovo.  They had

 3     parallel responsibility with Stefanovic and Djordjevic.  He was asked at

 4     pages 41 to 42, Who had primacy, and he said, In the hierarchy they are

 5     by all means above the head of the staff because they are assistant

 6     ministers, and this is why I said that the special units had

 7     responsibility for the task parallel and together.  We had towards it

 8     both.  He's saying that he as well as the minister had parallel

 9     responsibility for the PJP in Kosovo.  It is clear from the staff minutes

10     and also accepted by Mr. Lukic in P948 that operational commanders in

11     charge of what was going on in the field would have to report to the MUP

12     in the fulfilment of the tasks.  He accepted the role of the Joint

13     Command.  He said that as far as the so-called Joint Command is concerned

14     - he referred to it as so-called because as far as I know it has not been

15     officially enacted in any document - "It was called the Joint Command

16     because it was necessary to unite police and army activities and engage

17     the politicians to resolve other issues in Kosovo."

18             And he accepted the work and the meetings of the Joint Command

19     during the indictment period.  At page 86 when he was asked about that,

20     he said:  "Due to the specific situation during the bombing, the frequent

21     changes of locations of both the corps command and the ministry staff,

22     they met mostly in basements at various locations."  And he said finally:

23     "It was most often in the shelter of the Grand Hotel."

24             That is the evidence or part of it.  Much more is described in

25     the closing brief, as I indicated, and I don't think there is any point

Page 26930

 1     in repeating that here or to elaborate upon it here.

 2             In addition to that evidence that is in the brief, there is

 3     evidence that is not fully discussed there, the evidence of international

 4     representatives who were in Kosovo and who worked with Lukic and who

 5     described Mr. Lukic as the most senior MUP person, the person responsible

 6     for the MUP in Kosovo.  General DZ said that Lukic himself or Lukic

 7     introduced himself to him as the Serbian police commander in Kosovo.  And

 8     he also said or gave examples where in the discussion that he had with

 9     General Lukic it was clear that Lukic exercised authority over these

10     forces in Kosovo.  Ciaglinski testified to the same effect.  He said that

11     when he arrived in Kosovo he was informed that Lukic was the person in

12     charge of the MUP.  At the various meetings with the FRY and the KVM

13     commission, Lukic was introduced as the boss of the MUP in Kosovo.  He

14     accepted or assumed that Mijatovic worked directly for Lukic because he

15     would always refer or defer to Lukic.  And Maisonneauve and Byrnes

16     testified to the same effect that Lukic as far as they were concerned

17     Lukic was the chief of police in Serbia.

18             So from all angles, he had the power, he had the authority to

19     command, to control, and to discipline the forces in Kosovo, the relevant

20     forces in Kosovo.  You know, I'm not talking about the traffic police or

21     the other work that police officers do, but those that are operating in

22     the field where the villages are and the towns where the Albanian

23     population was expelled from.

24             All of that evidence is supported by evidence, much of which was

25     dealt with just now by Mr. Hannis.  Lukic's presence at various

Page 26931

 1     high-level meetings as a representative for the MUP in Kosovo, he was one

 2     of the representatives for the MUP at the 21st of July meeting at Beli

 3     Dvor in Belgrade where the 1998 summer offensive was planned.  He

 4     represented the MUP at the Joint Command meetings in 1998 and 1999.  He,

 5     together with Djordjevic and Stevanovic, was part of the MUP delegation

 6     involved in the discussions of the Clark-Naumann Agreement, which

 7     included matters impacting the work of the MUP in Kosovo.  On the 29th of

 8     October, 1998, at the meeting of the operations inter-departmental staff

 9     for the suppression of terrorism in Belgrade, he submitted to all the

10     presidents and high-level leaders the report on behalf of the MUP in

11     Kosovo; and if you look at that report, that report covered the MUP

12     operations in all its aspects.

13             And on the 4th of May, he attended a meeting in Milosevic's villa

14     in Belgrade where the leaders of the police and military and the civilian

15     leadership in Serbia were present and provided an overview of the

16     activities of the MUP.

17             I don't think I could elaborate any further usefully on those

18     aspects of the evidence.  There are a couple matters that I'd like to

19     refer to which are raised in the brief, and I think I should comment on

20     them.  The submission is that Lukic not only was in charge of these

21     operational forces, but he was linked directly to persons involved in the

22     commission of the crimes, and I'll give two examples.

23             We see at paragraph 754 of the closing brief for Mr. Lukic that

24     it is submitted that the sole evidence that Lukic had responsibilities

25     over Trajkovic and the SAJ is in P1505, and there's a reason for this,

Page 26932

 1     and that is because Trajkovic was in charge of the SAJ including those

 2     persons who committed the Podujevo massacre of the women and children.

 3     So there is an attempt to distance Lukic from Trajkovic.  Paragraph 1001

 4     of the pre-trial brief discusses P1989, which is a MUP staff meeting on

 5     the 4th of April, 1999, where there were several SAJ commanders present,

 6     including Trajkovic, and as I said, JSO commanders who were present there

 7     reporting to and making proposals to and receiving instructions from

 8     Lukic.  So Lukic had authority over Trajkovic.

 9             As I said, Trajkovic was responsible for the Skorpions, according

10     to the evidence, and is a person who according to Goran Stoparic, the

11     insider police witness who was a member of the Skorpions, in his

12     statement, P2224, he visited the Skorpions shortly after they had

13     murdered all these women and children in Podujevo and thanked them,

14     something that shocked the witness.

15             Trajkovic should have -- well, it is obvious that having regard

16     to what happened at Podujevo, it was obvious to Stoparic and it is

17     obvious to all of us here that Trajkovic 's responsibility would have

18     been to do otherwise in respect to any person that might have been

19     involved in such an incident.

20             The Lukic closing brief suggests that Skorpions were tried,

21     convicted, and sentenced for the crime.  True, but this was long after

22     the indictment period, and this occurred in what might have -- might be

23     described as a different era in Serbia, and if one looks at the exhibit

24     referred to, P951, which I think is a document in which they are charged,

25     one will see that the charges later on in Serbia bear little relation to

Page 26933

 1     the time in 1999 when Mr. Lukic exercised command responsibility there.

 2             The Prosecution's pre-trial brief discusses the evidence of K-83,

 3     another police insider who testified about the Suva Reka massacre.  I

 4     won't discuss further the massacre itself, but one of the points he made

 5     in his evidence is that the massacre of the Berisha family was -- the

 6     massacre occurred during an operation led by Cegar 1 or Colonel Mitrovic

 7     who commanded the 37th PJP Detachment.  There has been evidence about

 8     Cegar 1 and Colonel Mitrovic.  The suggestion at paragraph 895 of the

 9     Lukic closing brief that the unit was not involved is not correct.  One

10     can check the references to see that it is not correct.  The evidence of

11     Stoparic was that this was the unit that led the operation.

12             Colonel Mitrovic was also Lukic's subordinate who reported to

13     him.  In P1989, again, at page 2, we see him -- well, the screen is

14     before -- it's interesting to note on this page and I think the previous

15     page and the next page who attended the meetings and gave reports to

16     Mr. Lukic, chiefs of secretariats, and chiefs of PJP detachments who were

17     present there giving reports.  And at the bottom of this page we see the

18     said Radoslav Mitrovic, the commander of the 37th Detachment who gave a

19     report to Lukic.  And later on in the exhibit, you can see that Lukic

20     issued various directives.

21             So the point is that the -- Lukic had control of the various

22     persons in the field who were involved in the commission of the crimes.

23     He's linked to them as their leader and commander.

24             The Defence argument at paragraph 620 is that General Lukic was

25     not the most senior officer in Kosovo.  To some degree, with respect,

Page 26934

 1     that is solely non sequitur.  What the Prosecution is saying that he was

 2     the most senior officer posted in Kosovo, with office in Kosovo.  So the

 3     minister or the -- or Mr. Djordjevic or Mr. Stevanovic, as the Defence

 4     has indicated, they were senior, too, yes, but they were based in

 5     Belgrade, and I don't think the Defence has suggested who else was more

 6     senior who was down there.

 7             I remind the Court that he was a senior police officer, and there

 8     are various inferences which Judges I'm sure can infer from the seniority

 9     within a disciplined force like the police force or a force intended to

10     be disciplined like the police force.  Many inferences as evident, I

11     think, can be drawn, and one is his authority to take steps where he

12     becomes aware that police officers commit crimes, and therefore a

13     distinction must be drawn between what is clear.  The Lukic Defence is

14     saying that he was not involved in disciplinary proceedings in the SUPs.

15     Yes, if a policeman didn't come to work on time or was sloppily dressed,

16     that is something that the MUP rules of procedure and the disciplinary

17     procedures in the MUP took care of.  That is something for the SUP chief,

18     and that went up to Belgrade.  But the most senior police officer in

19     Kosovo who had authority over the operational police in Kosovo had a

20     different responsibility that came to the attention that police officers

21     were involved in murder or ethnic cleansing, looting, his

22     responsibility -- he cannot say that there is a structure in place for

23     that.

24             If we look at the evidence of Bozidar Filic who was asked

25     about -- and he is a SUP chief who testified was asked about that, we can

Page 26935

 1     see how -- what I say is a self-evident inference, a self-evident fact,

 2     how self-evident it is in the way he dealt with it.  This is not

 3     something anti-intuitive or non-intuitive.

 4             He said the head of the staff -- he agreed that the head of the

 5     staff was the most senior officer posted in Kosovo even though more

 6     senior officials visited during the war.  He said that Lukic did not have

 7     direct authority to take measures in case of serious crimes; it was the

 8     chief of secretariats.  But when pressed about his authority to take

 9     direct measures if he knew about crimes, his answer was:  "Certainly,

10     certainly.  As I said before, there were instructional dispatches on the

11     part of the staff stating that measures should be timely and that both

12     the staff and the ministry need to be advised of the measures taken."

13             So this is an acceptance of what I think is the obvious.

14     Mr. Lukic had responsibility for the conduct of these forces when they

15     were operational and investigated.  There is also some direct evidence

16     linking Mr. Lukic to another aspect of the case that I addressed

17     yesterday, and that is evidence linking him to the shipment of the bodies

18     from Serbia -- from Kosovo to Serbia.  This is direct evidence from

19     Protic.  Protic who said that he knew Lukic before, him and his driver,

20     in 1990 and had spoken to him on the phone before, and he said that he

21     got instructions from General Zekovic, I think it is, in Kosovo -- in

22     Belgrade to go down to Kosovo and to call a number to get instruction as

23     to where to get the bodies from.  And when he called the number, the

24     person he spoke to recognised his voice and the manner in which he was

25     addressed, as well.  He recognised him to be Mr. Lukic, and he told him

Page 26936

 1     where to go and where to get the bodies, and he carried out those

 2     instructions.

 3             JUDGE BONOMY:  Can I take you back briefly, Mr. Stamp, to your

 4     broad submission that Lukic was in charge of the MUP when they were

 5     engaged in action.  I maybe have paraphrased what you said.  Now, it's

 6     easy to understand that submission in relation to PJP units.  Can you

 7     give an example from the evidence of a situation where the

 8     run-of-the-mill police officers in a SUP would be involved in something

 9     that would fall under Lukic's responsibility?

10             MR. STAMP:  No, Your Honour.  No, the run-of-the-mill police

11     officers -- the police officers who were engaged in the field, there are

12     examples, well, many examples discussed in the brief that indicated that

13     they were -- they fell within his responsibilities.  When I say

14     "run-of-the-mill," I'm thinking of police officers who were engaged.

15             JUDGE BONOMY:  Well, your submission was - I've found it now -

16     the SUPs and the PJP reported -- still reported to Belgrade, but when

17     they were operational in Kosovo --

18             MR. STAMP:  Yes.

19             JUDGE BONOMY:  -- the MUP staff coordinated and controlled them.

20             MR. STAMP:  Yes.

21             JUDGE BONOMY:  Now, can you relate that more specifically to a

22     SUP's activities?

23             MR. STAMP:  We have the SUP chiefs, and perhaps I could find it

24     in the Prosecution's closing brief.  We have the SUP chiefs reporting on

25     the operations to the -- to General Lukic, and we have in those MUP

Page 26937

 1     minutes General Stevanovic instructing the SUP chiefs that whenever they

 2     have their own plans for anti-terrorist activity they must submit them to

 3     the MUP staff first before they could proceed with their own plans.

 4             JUDGE BONOMY:  So that's how you fit it into this scheme, that

 5     there was, and we've seen -- I think there's more than one example of it,

 6     instructions that SUP chiefs have to submit -- or had to devise a plan

 7     for anti-terrorist activities and to submit that for approval.

 8             MR. STAMP:  Yes.

 9             JUDGE BONOMY:  So you're talking about the action of any of their

10     staff when engaged in anti-terrorist activity or what is called

11     anti-terrorist activity?

12             MR. STAMP:  Yes.  Operational activity in the field is one way

13     one could look at it, and there are in addition to that various

14     directives from General Lukic to the SUP chiefs that they should send

15     reports to him about various activities.  These, again, are discussed in

16     the brief.

17             JUDGE BONOMY:  Thank you.

18             MR. STAMP:  Protic was a witness, I readily concede, who was

19     involved in criminal activity.  Certainly, at least, to knowingly

20     transport and conceal bodies must have been against the law of Serbia.

21     And Your Honours must exercise your own judgement and experience in

22     respect to the testimony of an insider like that who comes and tells you

23     that, I'm telling you the truth, and I was involved in this harvesting,

24     and this is how it occurred.  And I agree, I accept that Your Honours

25     have to be very cautious in reviewing evidence of people like that, and

Page 26938

 1     in case of this nature we will have people like that, and there will be

 2     areas of their testimony which needs to be reviewed, particularly the

 3     issue as to his naming General Lukic sometime after he had given his

 4     first and second statements to the war crimes investigators in Serbia.

 5     Much has been made about it.  He explained it.  He was cross-examined

 6     about it.  Those who have experience in dealing with evidence of persons

 7     who were involved in the crimes know that many times initially they are

 8     very hesitant about naming persons, and at the time in question, at the

 9     time when he gave his first statements and took the investigators to

10     Petrovo Selo where he showed them those graves, Mr. Lukic still occupied

11     a position of authority in Serbia.

12             So these are issues which I do not back away from.  I accept that

13     that aspect of the evidence must be reviewed carefully, but I commend --

14     I submit that on a whole his evidence is credible that it was Mr. Lukic

15     that he spoke to and can be relied on by the Tribunal.  There are other

16     aspects of the entire testimony that the Court can look to.  One of the

17     areas is the testimony of Mr. Kostic and Mr. Furdulovic about Lukic who

18     took over or was appointed to be in charge of the investigations in 2001

19     and 2002.  He ensured, almost to shocking -- almost shockingly that

20     even -- that not even a janitor, as it turned out from the evidence,

21     could be interviewed without him knowing first.  These are signs.  These

22     are signs that perhaps his engagement may not be as the Defence claimed.

23             What is interesting, again, and a very interesting aspect of the

24     testimony from which I -- I'm sure your experience will draw the

25     appropriate conclusions, is the evidence Sakic, Cedomir Sakic, he the

Page 26939

 1     Defence brought to say that, yes, he was engaged to escort Lukic --

 2     sorry, to escort Mr. Protic when Mr. Protic was transporting the bodies

 3     from Kosovo to Serbia, and he stuck close to Mr. Protic like glue so

 4     Mr. Protic would have never had an opportunity at any time on those

 5     trips, some of which lasted over a day; there was one trip when they left

 6     Serbia, one they overnighted and then picked up the bodies the next day

 7     to carry them back, but he was always so close to Mr. Lukic that Mr. --

 8     Mr. Protic, I beg your pardon, according to him that Mr. Protic would not

 9     have had an opportunity to call.  That aspect of the evidence where he

10     could not account for four hours of the time when they were supposed to

11     have been together is discussed in the closing brief, but there is

12     another interesting aspect if you look at the extracts before you.  You

13     know, he had not seen Mr. Protic for, what is it, five years according to

14     his testimony, and he meets him on the street near to where he lives.  At

15     that time, Mr. Protic was running some sort of removal business and was

16     beside his van, and he immediately said -- started speaking against

17     General Lukic, and he said the following words, and this is Basanovic.

18     "I will testify against Mr. Lukic because he did not award me a flat,

19     whereas he had awarded one to the driver Basanovic."

20             Protic was involved in transporting the bodies.  Savic

21     was involved in escorting the people who were transporting bodies.  I

22     keep -- it's Sakic.  Cedomir Sakic was involved in escorting them.  The

23     evidence from Protic is that Basanovic who was General Zekovic's driver

24     was also involved in transporting bodies to Kosovo.

25             Now, how after five years could Protic have made such an outburst

Page 26940

 1     to Sakic about General Lukic and Basanovic if Sakic did not know that all

 2     of them, all of them, were involved in this procedure?  There could be no

 3     other reason that -- for Protic to be able to say something like that to

 4     Sakic.  And Sakic was asked why -- why -- he was given an opportunity to

 5     explain, why is it that after six years Protic would be telling him about

 6     Basanovic and complaining about Lukic if they were not involved, and he

 7     couldn't -- well, it's -- I put the answer before the Court.  He was

 8     given an opportunity to explain and that his answer, it is submitted,

 9     that he -- that there is no explanation or no other explanation but that

10     even Sakic knew that this was something that these persons were involved

11     in.

12             Interestingly, a part of the evidence, as well, is that one of

13     the drivers, I think the custodian of Basanovic -- sorry, the custodian

14     of Batajnica who was a protected witness whose acronym I can't recall

15     said that there were at least six trips, and one of the drivers according

16     to Protic of these refrigerated trucks was Radosavljevic, Radosavljevic's

17     driver.  Radosavljevic was also a member of the MUP staff of Kosovo.  So

18     clearly they were all engaged in this endeavour.

19             We agree with the Defence that Mr. Djordjevic was involved, but

20     there were other senior leadership figures involved.  The evidence from

21     K-84 who led the investigations in 2001 when the story came out in the

22     newspapers about these bodies was that when he approached Djordjevic

23     about it, Djordjevic disappeared.  They didn't interview Lukic who was

24     the most senior person posted in Kosovo.  Lukic was -- Lukic, it is

25     clear, maintained a tight grip on this investigation.  This is what

Page 26941

 1     Protic said happened when the news broke when it was on the front page of

 2     the newspapers in Belgrade every day in 2001.  Djordjevic and Lukic

 3     discussed with him what should be done with him, and he agreed that he

 4     should be transferred, sent outside of Belgrade for the time being, and

 5     you will remember he also testified about how he was efficiently retired

 6     from the police force during the period of the investigations.

 7             So this is a case not of Djordjevic's sole responsibility, but

 8     it's another case, it is submitted by the Prosecution, of parallel and

 9     dual responsibility.

10             So the Prosecution submits that the evidence has exhaustively

11     discussed in the closing brief and in the other evidence that the Court

12     is aware of which we did not discuss, clearly demonstrates that Mr. Lukic

13     not only was in charge of these forces but had leadership

14     responsibilities to some specific individuals who were involved in these

15     crimes, including scheduled crimes.

16             And with that I will hand over now to Mr. Hannis to wrap up.

17     Thank you very much, Your Honours.

18             JUDGE BONOMY:  Thank you, Mr. Stamp.

19             Mr. Hannis.

20             MR. HANNIS:  Thank you, Your Honours.

21             I just wanted to conclude by addressing some general

22     considerations to you regarding how you approach the mountain of evidence

23     that you have to deal with in this case.

24             First of all, there are certain documents that I feel are core

25     documents that will be most helpful to you in understanding the evidence

Page 26942

 1     in this case, and I refer them to you for your consideration:  The SDC

 2     minutes from the Supreme Defence Council; the VJ collegium minutes,

 3     they're quite lengthy and sometimes they contain material that may not

 4     appear on the surface to be all that helpful or useful to you, but at the

 5     same time I think it's useful to you to even go through that because it

 6     shows you the relations and the interactions among the individuals

 7     involved in the VJ General Staff, the detailed nature of the information

 8     they have from all kinds of sources, and I think it's worthwhile for

 9     that; the Supreme Command Staff evening briefings during the war will be

10     useful and helpful to you; the Joint Command meetings of 1998 in Exhibit

11     P1468; a body of documents of the VJ and Joint Command decisions and

12     orders and combat reports and post-action analysis by those units engaged

13     in the actions in the field; MUP staff meetings contain a lot of useful

14     information for you; and of course, the suspect interviews.

15             One other group of core documents:  The constitutions of the FRY

16     and Serbia, the Law on Defence, the Law on the Army, the Law on Internal

17     Affairs, P2166; P1898, the excerpts from Stevanovic's diary; P1011, which

18     was the Markovic document about how the VJ complied with international

19     law; contains a lot of does go documents.  One of them I failed to

20     mention earlier when we were talking about the continuation or the

21     existence of the Joint Command is contained in there, and I think Judge

22     Bonomy asked one of the witnesses about that.  That's a reference to a

23     Joint Command report dated October 29th about the activities of the Joint

24     Command, and we don't have that document, although apparently it existed,

25     and it's referred to in P1011.  P615 is the Kosovo atlas and other maps

Page 26943

 1     will be useful to you.

 2             In reviewing that evidence, as I've mentioned before, you will

 3     find it very helpful to try and do it in a chronological fashion when you

 4     can.  It gives you context; it will help corroborate other documents and

 5     witness testimony; it can assist you in determinations of weight,

 6     reliability, and authenticity; and sometimes you will find things that

 7     make sense.  You will see a meeting, and based on what's said at the

 8     meeting if you work backwards you'll say, There should have been some

 9     mention of this before or there -- we should see some reflection of this

10     after, and that will help you in evaluating all that evidence.

11             Credibility of witnesses.  I've never been in a case this big

12     with this many witnesses, and you've got a lot of witnesses to judge

13     credibility.  Now, certainly, you've never been in a case with this many

14     witnesses where you have as many credibility issues as you have in this

15     case.  Many witnesses, I say, on both sides were not credible about many

16     issues; however, you as professional Judges, if you find a witness not

17     credible on some answer or answers, you can decide to reject part of

18     their testimony or all of their testimony in light of that, but you have

19     to weigh their evidence in light of all the circumstances.  And you as

20     experienced Judges will know those kinds of things that you need to

21     factor in in making that determination.

22             Some direct conflicts in the evidence of witnesses are going to

23     have to be resolved where, for example, we had VJ insiders or MUP

24     insiders and their commanders or their colleagues came in and said

25     something that was 180 degrees opposite.  You're going to have to resolve

Page 26944

 1     some of those conflicts and consider the bias, the motive of the people

 2     testifying, consider when they first made their statements, how they may

 3     have changed over time.

 4             Sometimes you had several witnesses come in and talk about an

 5     event, a document, an institution.  In my experience in dealing with

 6     witnesses, even in a simple case like a car crash or a bank robbery, you

 7     may have five witnesses who were there at the same time, and you would

 8     expect them to report basically the same thing.  But it's human nature

 9     and it's funny how you will get some widely disparate reports about the

10     same thing.  But with the other information you have, you're often able

11     to sort through who got it right, who got it wrong, and why they got it

12     wrong.  But the opposite side of the coin, though, however, sometimes you

13     may have eye-witnesses who come in and tell exactly the same story.  That

14     should cause suspicion on your part, I suggest, based on my experience

15     with human nature because that may suggest that people have decided, Oh,

16     we have to tell this story a certain way because otherwise it will look

17     bad for us.  Sometimes too much consistency can be a bad thing.  I ask

18     you to bear that in mind in evaluating this evidence.

19             You're going to have to consider the testimony of some of the

20     Prosecution insider witnesses like K-25, K-54, K-82, K-89 compared to the

21     testimony of VJ and MUP commanders Delic, Vukovic, et cetera.  You're

22     going to have to consider Peraj versus Lazarevic and Kotur and make a

23     decision about who you believe and why.

24             This relates to circumstantial evidence.  As I said earlier on,

25     this is not a case where we have a confession.  We don't have a

Page 26945

 1     smoking-gun document.  We don't have a copy of the plan to expel Kosovo

 2     Albanians from Kosovo, but, again, I think in the experience of human

 3     nature we oftentimes find that circumstantial evidence can be more

 4     compelling and more trustworthy sometimes than a confession or a

 5     document.  In deciding whether it's the only reasonable inference to be

 6     drawn that there was a plan, it should be viewed in the totality of the

 7     circumstances, not in an isolated fashion.  I think it was in General

 8     Ojdanic's brief where there was a good job of taking individual aspects

 9     of the whole thing and offering an alternative explanation for each,

10     which on the surface has appeal and looks good, but that's too simple, I

11     suggest to you.

12             Occam's razor is a principle that you're probably familiar with

13     if things are subject to more than one reasonable explanation.

14     Oftentimes the simple one is the correct one.  I'd like to give you an

15     analogy based on my early days as a prosecutor in a drunk driving case,

16     and I don't mean the demean these proceedings or the seriousness of the

17     kinds of crimes we're talking about here, but the process is the same;

18     the analysis is the same, and I'll give you an example.  A highway

19     patrolman stops a driver because his driving is erratic, speed is fast,

20     slow, its up, it's down, he's weaving in the roadway.  He talks to the

21     driver.  He smells what appears to be alcohol on his breath.  He has

22     bloodshot and watery eyes and a red nose.  His speech is slurred.  He

23     gives him some field sobriety test, walk in a straight line, he can't do,

24     trying to close his eyes and lean his head back and touch his finger to

25     his nose.  He misses badly.  There are beer cans on the floor board in

Page 26946

 1     the car.  The case goes to trial, and the defendant comes in, and he has

 2     an explanation for every one of those things.  The bad driving, the

 3     weaving, and the inconsistent speed was I had a mechanical problem with

 4     my car.  You know, the suspension was bad and the accelerator was messed

 5     up.  The alcohol on my breath, that was the Breathalyzer -- not the

 6     Breathalyzer.  That was the breath freshener I used because I was on my

 7     way to see my girlfriend, and there's some alcohol in that.  The red

 8     nose, I have allergies.  Bloodshot and water eyes, I was out working in

 9     the field all day.  Slurred speech, I bit my tongue accidentally when I

10     saw your red light in my rearview mirror, and I was nervous.  The field

11     sobriety test, I couldn't walk a straight line because I had on my new

12     boots and they hurt my feet.  My finger to the nose, I still had the

13     lingering effects of an inner ear infection after my last flight and it

14     affected my balance when I closed my eyes.  The beer cans on the floor

15     board were left there by a hitchhiker I had picked up and dropped off

16     shortly before you stopped me, officer.

17             All reasonable explanations, all possible.  But is it more likely

18     that those ten different varying explanations serendipitously came

19     together in one place at one time, or is the more likely explanation he

20     was drunk, he was driving drunk?  We say you can make an analogy in this

21     case, but on top of that, in this case, throw in the testimony of the

22     survivors of the massacres and the deportations.  In my drunk driving

23     case that would be like, I found the bartender and the waitress who came

24     in and said, yeah, he was here.  He had four beers before he left ten

25     minutes before you stopped him.  Consider all that evidence together, and

Page 26947

 1     we say the circumstantial evidence leads to only one reasonable

 2     conclusion.

 3             And that's where we hope you will as the professional Judges take

 4     your common sense with you when you sit down to consider the evidence in

 5     this case.  As you said, Mr. President, I think on at least one occasion,

 6     maybe more, if it's called a cat and it looks like a cat, it's probably a

 7     cat.  I think you told Professor Markovic calling it a dog does not

 8     change the nature of the cat.  Where I came from, we used to say if it

 9     looks like a duck and it walks like a duck and it quacks like a duck,

10     it's probably a duck.  Same principle, Your Honour, and we ask you to

11     bear that in mind when it comes time to write your judgement.

12             My last remark does relate to sentencing.  In the event that you

13     find one or more of these accused guilty of any of the crimes charged,

14     you're going to have to impose sentence.  The general considerations are

15     in Rules 101 of our Rules of Procedure and Article 24 of the Statute.  We

16     have recommended a range of 20 years to life to be given out as you deem

17     fit for any accused that you might convict, and I only point to you the

18     aggravating factors that we think you should consider in the event you

19     are going to impose sentence on one or more of the accused, and those are

20     the leadership roles that these individuals had, the vulnerability of the

21     particular victims in this case, and the victim impact, including the

22     duration of the harm.  For many of those people, that harm is permanent.

23     Some of them are dead.  Those who survived will probably never be the

24     same as a result of what they experienced, as a result of the commission

25     of these crimes.

Page 26948

 1             And with that, Your Honour, that concludes my remarks.  I only

 2     want to thank you for the opportunity to have addressed you and to tell

 3     you it's been a professional honour and pleasure.  Thank you.

 4             JUDGE BONOMY:  Thank you, Mr. Hannis.

 5                           [Trial Chamber confers]

 6             JUDGE BONOMY:  It would probably suit everyone, I suspect,

 7     Mr. O'Sullivan, if we adjourn now and resumed at a quarter to 2.00 when

 8     we can hear your submission or a large part of it without interruption.

 9             So we'll adjourn now until quarter to 2.00.

10                           --- Luncheon recess taken at 12.32 p.m.

11                           --- On resuming at 1.47 p.m.

12             JUDGE BONOMY:  Mr. O'Sullivan, your submissions on behalf of

13     Mr. Milutinovic.

14             MR. O'SULLIVAN:  Thank you, Your Honour, and good afternoon to

15     you and the Trial Chamber, and good afternoon to my learned friends from

16     the Office of the Prosecutor.

17             At the outset, we have to say that we are prepared to concede

18     based on the Prosecution's review of the evidence that they could prove

19     the guilt of the drunk driver, but we make no further concessions.

20             On a more serious note, Your Honour, the Chamber has had the

21     opportunity to review Mr. Milutinovic's final brief and his prayer for

22     full acquittal.  I will not recite the contents of our brief, but I will

23     respond to the Prosecution's submissions that demonstrate to you that the

24     Prosecution has utterly failed to prove the case against Mr. Milutinovic

25     and that you should acquit him.

Page 26949

 1             I'd like to begin with the allegations made by the Prosecutor

 2     that in 1998 and 1999 that Mr. Milutinovic obstructed and derailed the

 3     negotiating process and that he destroyed the possibility of bringing

 4     about a peaceful resolution of the Kosovo crisis, and that this created a

 5     window of opportunity for the members of the JCE to carry out their plan.

 6     The Prosecution says this is evidence of criminal intent and criminal

 7     conduct, proof of a JCE and proof of Mr. Milutinovic's participation in

 8     the commission of a JCE.

 9             Now, yesterday the Prosecutor said that they've presented

10     comprehensive and conclusive evidence to you.  Now, we must say with all

11     due respect to the Prosecutor that based on the evidence in this case we

12     find that the allegations and the submissions of the Prosecutor are

13     nothing short of astounding.  They are astoundingly incomplete,

14     astoundingly incorrect, and misguided.  All of us who sat through this

15     trial for two years, we saw tens of exhibits, numerous witnesses

16     concerning the legitimate and serious attempts made by Mr. Milutinovic

17     and others in 1998 and 1999 to find a viable, lasting, and fair agreement

18     to bring about peace in Kosovo and Metohija.  We saw and heard from

19     international players, Kosovar Albanians, federal and republican

20     politicians, and here I'm thinking about John Crosland, the British

21     military attache, Ambassador Petritsch, Veton Surroi, Momir Bulatovic,

22     Zivadin Jovanovic, Ratko Markovic to name a few.  And we've heard that

23     powerful members of the international community supported the separatist

24     aspirations of the KLA, turned a blind eye to KLA activities, and made

25     secret deals with the Kosovar Albanians on independence, while at the

Page 26950

 1     same time casting public blame on the Serbs for failure of the process as

 2     a pretext to bomb the FRY.  The OTP knows this is the evidence.  We all

 3     know that this is the evidence, yet the Prosecutor continues to allege

 4     that Mr. Milutinovic acted criminally.  There's a flagrant disregard for

 5     the evidence.

 6             The Prosecution ignores the evidence that we set out in our final

 7     brief at paragraphs 127 to 182 concerning 1998, and I must review this

 8     with you because there's a complete disregard by the Prosecutor for this

 9     evidence.  We know that as early as the 10th of March, 1998, the

10     Government of the Republic of Serbia created a delegation to negotiate

11     self-governance in Kosovo and Metohija.  And on the 18th of March,

12     Mr. Milutinovic made a declaration where he held himself out as the

13     guarantor for the process.  Now, yesterday at page 26820, my learned

14     friend says that it's unclear what it meant to be the guarantor or

15     questions what it means to be a guarantor, but Professor Markovic at page

16     13133 said that it was Mr. Milutinovic's personal commitment to the peace

17     process, that he represented the state of Serbia and symbolised its unity

18     as the president of the republic, and that he was speaking in that

19     capacity.  The negotiations were of a political nature and

20     representatives of the government and the leaders of the Kosovar

21     Albanians were expected to negotiate.  There was no other state organ

22     involved.

23             And Mr. Milutinovic, as we will see as I review this evidence,

24     used his experience as a politician, as a diplomat, and his role as

25     the -- or his function as the president of the republic using best

Page 26951

 1     attempts to make that happen.  Now, we know that in early March or by

 2     late March, the 23rd of March, we had the education agreement, and steps

 3     were taken despite very difficult circumstances for the remainder of 1998

 4     up to and including the 28th of March, 1999, after the commencement of

 5     the war, to fulfil the education agreement, hand over institutions,

 6     repair buildings, get supplies up and running.  We have evidence of that,

 7     and Mr. Milutinovic supported the initiative.  The evidence is that he

 8     expressed to those around him that he wanted an agreement on education at

 9     all costs, and there's the evidence of the letter he received from

10     Monsignor Palija of the San Egidio community in June; and as soon as Mr.

11     Milutinovic received the letter, he forwarded the letter to those who

12     were responsible for implementation, to move faster, to make sure it got

13     done.

14             THE INTERPRETER:  Kindly slow down for the interpretation.  Thank

15     you.

16             MR. O'SULLIVAN:  By the end of March -- by the end of March 1998,

17     the state delegation was expanded to include the national minority and

18     ethnic communities of Kosovo and Metohija --

19             THE INTERPRETER:  Could Mr. O'Sullivan not knock on the desk,

20     please.

21             MR. O'SULLIVAN:  -- in the National Assembly.

22             The delegation included the national minorities and ethnic

23     communities in Kosovo, the full spectrum of political representatives,

24     and the Special Envoy to the federal president who is Mr. --

25     Dr. Kutlesic, deputy federal prime minister.  On that same day, 31st of

Page 26952

 1     March, the UN Security Council Resolution 1160 said this:  It welcomed

 2     the statement Mr. Milutinovic had made on the 18th of March; it welcomed

 3     the signing of the implementation of the education agreement; it called

 4     for immediate dialogue to begin on substantial autonomy, through peaceful

 5     means, without precondition, and based on the territorial integrity of

 6     the FRY and international standards such as the UN charter, the Helsinki

 7     Final Act, and OSCE standards.  And those are precisely the same

 8     parameters that Mr. Milutinovic advocated on the 18th of March in his

 9     declaration.

10             Now, in 1998 Mr. Milutinovic was in Kosovo five times.  On four

11     occasions he accompanied the state delegation to meetings.  The fifth

12     time was in September when he was in Kosovo following the killing of

13     civilians by the KLA at Radonjic Lake where he laid a wreath and toured

14     the area.  The most noteworthy visits he made were on the 18th and 25th

15     of November, 1998, when he accompanied the state delegation.

16             By this time we've had months of shuttle diplomacy which began in

17     July under the auspices of Ambassador Hill, who was US ambassador to

18     Macedonia; Ambassador Petritsch, who was the Austrian ambassador to the

19     FRY; and the EU Special Envoy for Kosovo.  The Chamber has the evidence

20     of the 15 draft agreements that were prepared in Mr. Milutinovic's office

21     by his staff.  Mr. Kojic testified about that.

22             Mr. Kojic told you that Professor Markovic and Professor Kutlesic

23     were engaged with Ambassador Hill and Jim O'Brien from the US State

24     Department.  In the same period, Mr. Milutinovic was meeting with

25     Ambassador Hill and the two members of the state delegation I just

Page 26953

 1     mentioned in an attempt to move the process forward through shuttle

 2     diplomacy.

 3             Now, in relation to the meeting on the 18th in Pristina, four

 4     days earlier Mr. Milutinovic had sent letters of invitation to

 5     Dr. Rugova, representatives of the ethnic minorities in Kosovo,

 6     Ambassador Petritsch, and ambassadors for three of the permanent members

 7     of the UN Security Council, the US, Russia, and China.  And when he was

 8     in Pristina that day, he made remarks at the beginning and at the end of

 9     the meeting, and we've included those in our brief in annex 3 and 4.  But

10     in his remarks, Mr. Milutinovic stressed for peaceful co-existence in

11     Kosovo and Metohija and common life together, free of conflict,

12     xenophobia, chauvinism, or religious or historical prejudice, and he

13     advocated modern democratic solutions to solve the problem:

14     self-governance, parliamentary system with an executive and judiciary,

15     local police, direct multi-party elections, multi-ethnic and a

16     multi-confessional society.  And he concluded by repeating and

17     emphasizing his personal commitment to the process, and he also expressed

18     his disappointment in that the representatives of the leading political

19     parties of the Kosovar Albanians have not responded to invitations that

20     had come out, and I'll come back to how many there were.  But he remained

21     open and hopeful that they would engage.  That's on the 18th of November.

22             Now, between the -- that meeting and the second meeting I'd like

23     to talk about on the 25th, Mr. Milutinovic took a number of initiatives

24     to move -- to attempt to move the process forward.  On the 19th, the day

25     after the Pristina meeting, he met the political representatives from

Page 26954

 1     Kosovo who were there back in Belgrade.  He sent letters of invitation to

 2     Mr. Qosja, Mr. Hyseni, and Mr. Demaqi.  On the 20th of November, the day

 3     after, he held separate meetings; Mr. Milutinovic held separate meetings

 4     in Belgrade with federal and republican politicians from the full

 5     spectrum of the political galaxy of Serbia and the FRY including

 6     opposition parties.  That same day, a joint proposal on the political

 7     framework of self-governance in Kosovo was discussed.  Mr. Milutinovic

 8     called for a continuation of talks on the 25th in Pristina.  Letters of

 9     invitation were again sent out to Dr. Rugova and others.

10             I take you to the 23rd of November where, again, Mr. Milutinovic

11     is meeting with Ambassador Hill, Dr. Markovic, and Dr. Kutlesic, where

12     they reviewed the events of the previous days in Pristina, the meetings

13     in Belgrade, the joint proposal, and how the joint proposal itself could

14     be the main pillar of a political solution within the framework of the

15     FRY and Serbia according to international standards.  Well, on the 25th

16     of November the joint proposal was signed in Pristina accompanied by a

17     document that has become known as the Pristina declaration.  It was

18     signed by Dr. Markovic on behalf of the Republic of Serbia, Dr. Kutlesic

19     on behalf of the FRY, and the representatives of the national and

20     political parties.  Well, Dr. Rugova did not attend.

21             Now, as a parenthesis, we do have Exhibit 6D1671 which is a Rule

22     70 Exhibit which I will not go into any detail on because it's Rule 70,

23     but the Chamber can look at it.  But the document does tell us -- I won't

24     mention the source.  The document does tell us that by that time members

25     of Dr. Rugova's party had been arrested by the secret police of the KLA

Page 26955

 1     and they were going to stand trial under the KLA's system.

 2             Now, the process did not end on the 25th of November because the

 3     evidence is, on the 2nd of December, Ambassador Hill came back with a

 4     further draft, and the evidence is this -- this draft presented by

 5     Ambassador Hill through the shuttle diplomacy was acceptable to the

 6     Serbian side.

 7             Now, despite that, the Prosecution cites in its brief the

 8     testimony of Ambassador Petritsch and claims that his evidence shows a

 9     lack of sincerity from the Serbian side, that they refused international

10     mediation, that the Serbs hindered international mediation, and that they

11     refused to meet with the Kosovar Albanian leadership.  I invite you to

12     look at what Ambassador Petritsch actually said.  Ambassador Petritsch's

13     testimony is this:  He welcomed the three-plus-three agreement.  It was

14     consistent with Resolution 1160.  It was a positive step.  He considered

15     the Yeltsin-Milosevic agreement of mid-June as a very positive step

16     forward, a significant compromise by FRY and Serbia, a compromise to

17     internationalise the process.  He called it an historic declaration, and

18     we know that that agreement brought in KDOM.  It allowed for freedom of

19     movement of diplomats and humanitarian organizations.  It provided for

20     state assistance through the citizens of Kosovo and Metohija and, also, a

21     further undertaking to bring in and negotiate with the OSCE of

22     monitoring.

23             The Milosevic-Yeltsin agreement also signalled the beginning of

24     the shuttle diplomacy I've just mentioned, which was -- involved

25     Ambassadors Hill and Petritsch.  But Ambassador Petritsch says more.  He

Page 26956

 1     considered the Holbrooke-Milosevic Agreement of October 1998 as an

 2     important next step of the involvement of the international community as

 3     well as all the subsequent agreements that flowed from that with OSCE,

 4     KVM, NATO, and KDOM.  Ambassador Petritsch considered the joint proposal

 5     of the 20th of November and the Pristina declaration of 25 November as a

 6     demonstration of the commitment of the Serbian side to fulfil the

 7     timetable which the Serbian government had set for itself in its 11-point

 8     framework on the 13th of October, 1998.  The Prosecution cites at

 9     paragraph 250 of its brief this, the evidence of Mr. Petritsch,

10     Ambassador Petritsch, that on the 11th of March, 1998, an invitation was

11     sent from the state delegation to the Albanian leadership one day after

12     the creation of the state delegation, and that that was short notice and

13     that was a sign of bad faith.  Well, fair enough.  It was short notice.

14     It was the first day after the creation of the delegation.  But what does

15     Ambassador Petritsch tell us?  He says that repeated efforts were made to

16     encourage all Kosovar Albanian representatives to meet.  He knew himself

17     of 12 to 15 invitations that were destined to encourage dialogue, and

18     Professor -- Ambassador Petritsch said there could be no legitimate

19     reason for one side to refuse 15 invitations, and he knew that

20     Mr. Milutinovic was constantly emphasizing his personal commitment to the

21     process and the importance of finding a resolution to the problem in

22     Kosovo and Metohija.  Now, that's only the evidence of Ambassador

23     Petritsch that I've been referring to in this last segment.  There's a

24     wealth of evidence from other individuals and other sources in this case.

25             And what of the claim by the Prosecution that the state

Page 26957

 1     delegation refused to meet with the Kosovar Albanians?  Let's put the

 2     shoe on the right foot.  In 1998 and at Rambouillet and Paris, it was the

 3     state delegation that always requested, all encouraged face-to-face

 4     talks, and it was always the Albanian side which refused and which was

 5     supported in not sitting down with the state delegation.

 6             At paragraph 588 of the Prosecutor's brief, they make reference

 7     to a letter by Dr. Qosja and Mr. Hyseni.  It's a response, I say.  It's a

 8     response to the letter Mr. Milutinovic sent inviting them, and their

 9     response is that meetings were improvised and the discussions were hasty.

10     Now, we're in November 1998.  We know that there's been shuttle diplomacy

11     through Ambassador Hill.  The UN Security Council by this time has twice

12     called for urgent and immediate negotiations.  That's on the 31st of

13     March in the 1160 and the 23 September in 1199.  There was also a

14     timetable requested by the UN Security Council and a process that it

15     would include all ethnic nations in Kosovo, and only -- we know that only

16     representatives of the leading political parties refused to

17     participate -- the representatives of the leading Albanian parties

18     refused to participate.

19             In that same paragraph, 588, Prosecution refers to the letter

20     from Mr. Demaqi, his response to Mr. Milutinovic.  That's 1D92.  We

21     invite you to look at our brief at paragraph 153 because the essence of

22     Mr. Demaqi's response is that it was not clear to him whether

23     Mr. Milutinovic was inviting him as a private citizen or as the chief

24     political representative of the KLA.  But what's the evidence in relation

25     to this letter?  Well, it's P604.  That's Prosecution Exhibit P604, which

Page 26958

 1     is Mr. Milutinovic's interview with the Prosecutor.  It's Mr. Milutinovic

 2     who provided this letter to the Prosecutor, and he told them that Demaqi

 3     was insincere in this letter because clearly, Mr. Milutinovic said, he'd

 4     invited him as a representative of the KLA, just as he had invited

 5     Mr. Rugova, Mr. Qosja, and Mr. Hyseni in their official capacities as

 6     representatives of the leading Kosovar Albanian political parties.

 7             And to round off 1998, we have the evidence of the press

 8     conference given by Mr. Demaqi on the 8th of December, 1998.  This is a

 9     week after the final Hill proposal on the 2nd of December, which, again,

10     P604 tells us, Mr. Milutinovic told the Prosecutor, that on the 2nd of

11     December both the Americans and the Serbs were in general agreement with

12     that proposal.  But Demaqi from the KLA denounces the Hill proposal as

13     utterly unacceptable, and he repeats his historic -- what he considers to

14     be his historic mission, which is the unification of Albanians across

15     Albania, Kosovo, and Macedonia, and we've heard evidence from Mr.

16     Petritsch and Momir Bulatovic about the notion of greater Albania.  And

17     this letter also reveals that Mr. Agani had not made any real proposals.

18     It was a question by the Presiding Judge during the testimony of

19     Ambassador Petritsch which reveals that.

20             So clearly, in 1998 there can be no basis for alleging a lack of

21     sincerity or refusing international mediation, certainly no criminal

22     intent, and no criminal conduct.

23             JUDGE BONOMY:  Mr. O'Sullivan, just a point of detail.  Is there

24     any evidence of what happened between the 25th of November and the 2nd of

25     December to create the final draft?  You've referred to some evidence

Page 26959

 1     there of the KLA response to Serb acceptance of it.  Do we know how the

 2     situation changed from being a document which only minority parties were

 3     involved in to a proposal in a different form?

 4             MR. O'SULLIVAN:  Well, the proposal was a result of efforts made

 5     by the state delegation at late November in Pristina, and the 2nd of

 6     December document is a document issued by Ambassador Hill, who was doing

 7     the shuttling.  So it was the final Hill version, and you remember that

 8     Mr. Kojic had been preparing these drafts and they'd been shuttled

 9     between the state delegation and Ambassador Hill.

10             JUDGE BONOMY:  But is there any evidence of who Hill met and

11     discussed matters with between the 25th and the 2nd, or is there just a

12     vacuum?

13             MR. O'SULLIVAN:  Well, there's no details on who he met, but he

14     and Ambassador Petritsch were doing the shuttling between the state

15     delegation and Kosovar Albanians.  They'd been doing that since July

16     so --

17             JUDGE BONOMY:  Is there any evidence in the case, though, of who

18     these Kosovar Albanians were?

19             MR. O'SULLIVAN:  Well, obviously the -- Mr. Demaqi and Mr. Agani

20     [Realtime transcript read in error, "again"], Hyseni had been receiving

21     that.  They responded to this in their press release, the press release

22     on the 8th of December.

23             JUDGE BONOMY:  Thank you.

24             MR. O'SULLIVAN:  I move now to 1999 on the same theme, and I must

25     begin by correcting what we say are some factual errors in paragraph 252

Page 26960

 1     of the Prosecutor's brief.  This is in relation to Rambouillet.  At

 2     paragraph 252, the Prosecutor states that at Rambouillet the parties

 3     would refine the draft proposals presented earlier by Hill, Petritsch,

 4     and Mayorski, and that the Rambouillet was a continuation of negotiations

 5     conducted by the Contact Group in 1998.  Well, just as a background

 6     matter, that's incorrect.  The Contact Group was not involved in the 1998

 7     process.  The shuttle diplomacy was between -- under the auspices of

 8     Ambassador Hill.  It was, as I said, the American ambassador to Macedonia

 9     and Ambassador Petritsch who was the Austrian ambassador to the FRY and

10     Special Envoy to the EU for Kosovo.  Ambassador Mayorski only became

11     involved at Rambouillet as the Russian representative, and it's also

12     incorrect to say that there had been an earlier draft presented to the

13     parties at Rambouillet because as Ambassador Petritsch told us, the

14     Rambouillet document, as we've seen, the Rambouillet document was

15     presented piecemeal at Rambouillet over a two-week period, and Ambassador

16     Petritsch told us that negotiations among the six Contact Group countries

17     took up more time than shuttling between the two delegations.

18             Now, in our brief at paragraphs 183 and 244, we present a full

19     and complete presentation of the evidence concerning Rambouillet, and

20     it's our position that Mr. Milutinovic and the state delegation did not

21     obstruct, derail, or in any way destroy the possibility of bringing about

22     a peaceful resolution in France.  What do we know?  Well, we know that on

23     the 4th of February, 1999, the National Assembly of the Republic of

24     Serbia responded positively to the Contact Group invitation, established

25     a delegation of experts and experienced members, gave them a mandate

Page 26961

 1     based on the ten non-negotiable principles of the Contact Group.  It

 2     included representatives from the FRY.  We know that there was a joint

 3     federal platform supporting this delegation.  It was by and large the

 4     same individuals who had been negotiating in -- or attempting to

 5     negotiate in 1998 who were aware of the situation in Kosovo, aware of the

 6     law, and aware of life in that part of the Republic of Serbia.

 7             As we know, the Rambouillet process lasted from the 6th of

 8     February until the 23rd of February, initially planned for one week.

 9     Now, within that first week, what did the state delegation do?  Well,

10     they requested the full text as soon as they arrived in France.  They

11     requested face-to-face meetings with the Kosovar Albanians.  They

12     requested the two parties as a sign of good faith sign the ten

13     non-negotiable principles of the Contact Group, and at that point, the

14     co-chairs, Mr. Vedrine and Mr. Cook, assured the state delegation that

15     there was no need to sign the ten non-negotiable principles and that the

16     sovereignty and territorial integrity of the FRY and Serbia was assured.

17             And lastly, at the end of that first week, on Friday the 12th,

18     the delegation renewed its request to receive the full text that was

19     being offered at Rambouillet.

20             Now, by the second week, the state delegation had been given what

21     was considered to be the full political components of the accord.

22     Ambassador Petritsch told us that by the end of that week, the 19th and

23     the 20th, that's the Friday night, they worked -- he worked from 7.00

24     p.m. until 5.00 the next morning along with Dr. Markovic and others to

25     make significant progress on the precise terms of the political

Page 26962

 1     components of the agreement.  It was that next day, the 20th, the second

 2     Saturday -- end of the second week where Mr. Milutinovic accompanied the

 3     state delegation and told the Contact Group foreign ministers that there

 4     was general agreement on their side as to the political components of the

 5     Rambouillet agreement.  Mr. Milutinovic had arrived at the end of the

 6     first week because initially it was supposed to be a one-week

 7     get-together, and the evidence from Mr. Petritsch and from Mr. Markovic

 8     is that Mr. Milutinovic had the same relationship with the delegation in

 9     1999, in Rambouillet, as he had had in 1998 as the guarantor of the

10     process.  He was not there as someone's mouthpiece; he was not there as

11     someone to obstruct.

12             Now, that's what the state delegation -- that's their -- that was

13     their position by the end of the second week at Rambouillet.  During that

14     same period, Veton Surroi told us that by the 18th - that's Thursday -

15     the Kosovar Albanian delegation had rejected the agreement.  They said it

16     was unacceptable because it referred to the sovereignty of the FRY, that

17     authority originated according to the agreement in the FRY, powers were

18     derived from the FRY, and there was no reference to a referendum.

19     Mr. Surroi told us, and Mr. Surroi, of course, was a member of this

20     delegation, that other members of the delegation would not touch the

21     document and they wanted to quit.  And when the Kosovar representatives

22     came before the first ministers -- the foreign ministers of the Contact

23     Group on Saturday, they rejected it.  Mr. Thaqi told Mr. Dini when asked,

24     It doesn't have a referendum; it's unacceptable.  And that's when

25     Mr. Dini turned to Mrs. Albright and said, See, I told you so, and she

Page 26963

 1     took off her headphones in exasperation, apparently.  And Mr. Cook said,

 2     Something's missing which is non-negotiable, and the meeting was

 3     adjourned.

 4             Now, let's recall that two days prior to this meeting with the

 5     Contact Group foreign ministers, that is the 18th, there had been a

 6     secret meeting between General Clark and KLA members of the Kosovar

 7     Albanian delegation outside the castle, and there General Clark was

 8     discussing what would become chapters 2, 5, and 7 of the Rambouillet

 9     agreement.  But by this time, these chapters had not been discussed in

10     the Contact Group, had not been approved by the Contact Group, and

11     certainly they had not been tabled at Rambouillet.  These chapters, in

12     particular chapter 7, was prepared by NATO, and the evidence is that

13     General Clark was trying to convince the KLA to accept the agreement and

14     that these chapters 2, 5, and 7 would eventually be included at a later

15     date.

16             So by the 20th of February, we have a situation where the Contact

17     Group foreign ministers have been told by the state delegation and

18     Mr. Milutinovic as their chaperon that the political components of the

19     Rambouillet document are acceptable, generally acceptable; and the KLA

20     has told the Contact Group foreign ministers that they rejected it, that

21     between the 20th and the 23rd, the last three days, a series of events

22     unfolded which we say were planned by Mrs. Albright and implemented by

23     people like Mr. Hill, Petritsch, and others.  And the purpose of this was

24     to find a way to start bombing the FRY.  We know that by this point

25     Mrs. Albright had told Veton Surroi and Mr. Thaqi, and it was known by

Page 26964

 1     Ambassador Petritsch as well.  She said if the Kosovars sign and the

 2     Serbs do not, then NATO will bomb the FRY.  Privately, she was

 3     reprimanding Mr. Thaqi for not being a leader, for not agreeing to the

 4     political components because otherwise, if he didn't do that, NATO

 5     couldn't engage; while at the same time, publicly she's blaming the Serbs

 6     for failure on the 20th.

 7             Now, the events that unfolded over the next three days --

 8             JUDGE BONOMY:  There is evidence of that, is there?

 9             MR. O'SULLIVAN:  Yes.

10             JUDGE BONOMY:  In what form?  That at that point in time, after

11     the Serbs have said they'll agree, that she is publicly saying that they

12     won't.

13             MR. O'SULLIVAN:  It's -- it's in one of our annexes.  I think I

14     can find it for you.  Your Honour, I can --

15             JUDGE BONOMY:  It doesn't need to be answered this minute.  No,

16     it would help to have it.

17             MR. O'SULLIVAN:  Yes.

18             JUDGE BONOMY:  Because I just have a feeling there's another

19     vacuum in here, as well, about just exactly -- it's a big leap that

20     you've suggested we take, and it may be that what you're about to say

21     does fill what appears to me to be a vacuum, but you're saying that as of

22     this time a strategy has developed, a joint criminal enterprise on the

23     part of the international politicians to create a situation to justify

24     bombing.

25             MR. O'SULLIVAN:  I'll find the reference.  It's a clip that was

Page 26965

 1     shown to Ambassador Petritsch in annex 9 of our brief.  That's Exhibit

 2     1D205.  It was originally a Prosecution exhibit, 771.  That's where we

 3     have Mrs. Albright speaking and Mr. Thaqi speaking, and in addition to

 4     that --

 5             JUDGE BONOMY:  This is the Fall of Milosevic, again, is it,

 6     the --

 7             MR. O'SULLIVAN:  That's correct, yes.

 8             JUDGE BONOMY:  Yeah.

 9             MR. O'SULLIVAN:  That corroborates what Ambassador Petritsch and

10     what Mr. Surroi said, and it corroborates the fact when we get into the

11     secret side letters it follows that that's exactly what happened in

12     Rambouillet, that Mrs. Albright needed the pretext of the Serbs being the

13     bad guys so, as her spokesman said, the world would know whose side to be

14     on, and that's a statement he made publicly.

15             JUDGE BONOMY:  You have to bear in mind that this is a

16     documentary film compiled after the event and it may record words, but

17     the question is the order of events at the moment, and does it help us

18     with the order of these events?

19             MR. O'SULLIVAN:  Well, it helps corroborate the events as they

20     were told by you by participants, particularly Mr. Surroi --

21             JUDGE BONOMY:  Yeah.

22             MR. O'SULLIVAN:  -- and Ambassador Petritsch.

23             JUDGE BONOMY:  All right.  Thank you.

24             MR. O'SULLIVAN:  What is important to understand these events are

25     the attempts by Mrs. Albright through a side arrangement with the Kosovar

Page 26966

 1     Albanians to accept the political components of Rambouillet, which by

 2     this point they'd rejected by the 20th.  Now, this is all set out in our

 3     brief, but I'll slowly review it.  There are in fact two side letters.

 4     The first one is from the 21st of February --

 5             JUDGE BONOMY:  Yeah, we're quite clear about these,

 6     Mr. O'Sullivan.  It's your suggestion that this is all designed from that

 7     point on as a pretext to justify bombing.  And that's a very strong

 8     allegation to make, and it's the evidence for that that I'm anxious to

 9     find.  I mean, you can't just deduce that from the side letters --

10             MR. O'SULLIVAN:  Well, it's the --

11             JUDGE BONOMY:  -- that is one thing conclude that the Serbs were

12     not being told the whole story about the US position on this, but quite

13     another to say that this is designed to justify bombing.  If you do

14     things secretly and keep the information from the Serbs, it's not likely

15     to influence their behaviour, whereas if you tell them something that is

16     plainly unfair, then I can see that you might be trying to set up a

17     situation where you might bomb them.  But that's a difficult argument to

18     follow if you're basing it on secret material.

19                           [Defence counsel confer]

20             MR. O'SULLIVAN:  In our brief we fully set out what we say the

21     strategy was, and the strategy was that the Americans in particular were

22     convinced that the Albanians and the Serbs would accept the political

23     components on the 20th, and the Serbs did, and the Albanians wouldn't.

24     And with that in place, chapters 2, 5, and 7 were going to be presented

25     as a fait accompli, which -- and chapter 7 in particular was problematic

Page 26967

 1     for a number of reasons.  It wasn't approved or discussed in the Contact

 2     Group.  It provided for free -- basically free -- the occupation if NATO

 3     determined of the FRY to move about freely and without any questions

 4     asked.  And it's the totality of these events, and the secrecy is

 5     important because Ambassador Petritsch says at one point that he

 6     distanced himself from the second side letter.  The first one was vetoed

 7     by the EU, by Russia, and it certainly would have been unacceptable to

 8     the Serbs.  And at 9.00 in the morning on the 23rd, the last day, is

 9     where the first time that chapters 2, 5, and 7 are tabled.  The Serbian

10     side knew that the -- those chapters had not been approved by the Contact

11     Group.  Ambassador Mayorski told them so.  Now, they're there invited by

12     the Contact Group, and a member of the Contact Group, an important

13     country in the Contact Group, a permanent member of the Security Council,

14     says to them, This isn't part of the agreement or it hasn't been

15     approved, and they're quite at liberty to ask what's been going on here,

16     while at the same time they're being demonised in the process as being

17     the people who are responsible for the failure two days earlier when in

18     fact there is no failure from their side.

19             And the events of the 23rd are revealing.  The delegation's asked

20     by 1.00 in the afternoon, some two and a half hours later, to give its

21     views on the agreement, and they comply.  They comply.  They comply with

22     the letter at 1.00 sharp, but they point out that more room is necessary,

23     that more negotiation is necessary on the outstanding issues, the

24     fine-tuning, but importantly on the political components because they

25     were not reconciled with the FRY and Serbian constitutional and legal

Page 26968

 1     framework, issues like the constitution, the president of Kosovo and

 2     Metohija, the constitutional court, property.  That's all set out in the

 3     first letter sent by the delegation.  Now, Professor Markovic pointed out

 4     that the problem was that you had Anglo-Saxon lawyers making proposals in

 5     these agreements that didn't fit in with the continental FRY

 6     constitutional legal framework.  The general principles were acceptable;

 7     the details had to be flushed out, and they made that clear on the 23rd,

 8     the Serb delegation.  And they wrote to the Contact Group and they said

 9     this, two things.  All elements of self-government at the time of

10     defining the agreement have to be known and clearly defined.  In further

11     work, this should be adequately addressed and consistently resolved.

12             And the second point that they made to the Contact Group is that

13     the FRY agreed to discuss the scope and character of international

14     presence in Kosmet to implement the agreement to be accepted in

15     Rambouillet, so an undertaking to refine the political components and to

16     discuss implementation.

17             Now, that same day, the last day of the conference, Mr. Surroi

18     told us that the -- that Albanian delegation which had rejected the

19     political component had stopped working, just sitting around having

20     lunch, wasting time, he said.  Now, by this time we know that Mr. Thaqi

21     is working to kill the Rambouillet agreement.  And then we have what

22     occurs in the Kosovar delegation room, and it's not something you can

23     make up because it's nothing short of absurd, where Chris Hill shows up

24     dishevelled and says, Okay, guys, we've got five minutes, are you going

25     to sign this thing?  And they come up with the idea of having a letter

Page 26969

 1     from the Kosovars to Mrs. Albright, a mirror image of the letter that has

 2     been vetoed by the EU [Realtime transcript read in error, "Security

 3     Council"] and Russia.  And they type this up on the computer and people

 4     from the state department block Mr. Thaqi's access to the computer like

 5     in a basketball game, to quote Mr. Surroi.  And the letter is taken from

 6     there directly to Mrs. Albright, and that's when her spokesman James

 7     Rubin goes public and says, The Albanians have chosen peace, the Serbs

 8     have not, and now there's the clarity the world needed in deciding whose

 9     side they should be on.

10             Now, this side letter remains secret.

11             THE INTERPRETER:  The speaker is kindly requested to speak closer

12     to the microphone.

13             MR. O'SULLIVAN:  -- whether he knew about any side letters, side

14     deals, arrangements that weren't tabled that the parties didn't know

15     about, and he said, no, he didn't know about that.

16             And then when he was shown the letter that I've just described,

17     the one that was signed by Mr. Surroi, he tried to distance himself from

18     it.  He said, well, that's -- that was a side letter between the

19     Americans and the Kosovars, not between the Contact Group and the

20     Kosovars, but of course, Ambassador Hill is one of the three negotiators

21     for the Contact Group.  Now, why would Ambassador Petritsch be reluctant

22     to admit to this letter and then distance himself from it?  Well, he was

23     aware of the US strategy of having -- finding a way to get the Albanians

24     to agree, to cast blame on failure of talks on Serbia.  He was aware that

25     the cover letter of the 23rd of February, the one in closing chapters 2,

Page 26970

 1     5, and 7 have not been signed by Ambassador Mayorski, had not been

 2     approved by the Contact Group.  What he did not know, however, in this

 3     courtroom was that that letter had become public, and it became public

 4     because it was published in a book by Professor Weller, that's 1D18, and

 5     Professor Weller was an advisor to the Kosovar Albanians.  So Ambassador

 6     Petritsch was caught out.  The ambassador had no clothes.

 7             And what else do we know from Ambassador Petritsch's testimony?

 8     We know that on the --

 9             THE INTERPRETER:  And the speaker is kindly requested to speak

10     into the microphone.

11             MR. O'SULLIVAN:  -- and we have to say the ambassador had no

12     clothes.

13             The other thing we know from Ambassador Petritsch is that he and

14     Ambassador Hill on the last day of Rambouillet are working with the

15     Albanians in drafting a public statement from the Albanian delegation,

16     and he and Ambassador Hill are advising the Kosovars to put in their

17     statement that after three years there will be a referendum in Kosovo on

18     independence.  Now, before he was caught out Ambassador Petritsch was

19     telling you that a referendum was a terrible idea in the Balkans.  It

20     leads to war in Bosnia, couldn't have such a thing, and yet his own

21     internal memo to his foreign ministry in Austria is saying that he and

22     Ambassador Hill are advising the Kosovars to do just that, and what is

23     perceived as a unilateral declaration by the Kosovars is in fact

24     supported by the secret letter to Mrs. Albright with the collaboration of

25     two of the three negotiators, Ambassador Hill and Ambassador Petritsch.

Page 26971

 1             Now, in the periods between Rambouillet and Paris --

 2             JUDGE BONOMY:  Could you just hold on a second, please,

 3     Mr. O'Sullivan.

 4             There is evidence which I think came from Mr. Bulatovic that by

 5     the 18th of February the Serbian government -- sorry, the FRY government

 6     had a position on the military annex, these chapters 2, 5, and 7.  They

 7     clearly -- well, on one view of that evidence, by the 18th of February,

 8     they knew about the existence of these.  Now, the particular exhibit is

 9     2D221.  Do you have any comment to make on that document?

10             MR. O'SULLIVAN:  I believe there is an exhibit that says just the

11     opposite that was sent to the federal government, that's referred to in

12     our brief.  Indeed, on the 19th a telex was sent to the federal

13     government saying there is no -- they know of no military annex.  That's

14     in our brief.

15             JUDGE BONOMY:  And does your -- remind me, does your brief deal

16     with Bulatovic's own evidence on this, where he said that it was a

17     diplomatic response to the military annex offered to the negotiators in

18     Rambouillet?

19             MR. O'SULLIVAN:  Bulatovic or Jovanovic?

20             JUDGE BONOMY:  No, in Bulatovic's evidence at 13847.

21             MR. O'SULLIVAN:  My colleagues are telling me that it's Zivadin

22     Jovanovic, the foreign minister, not the prime minister Mr. Bulatovic.

23             JUDGE BONOMY:  17th of August, 2007.

24             MR. O'SULLIVAN:  Well, the reference I have -- the exhibit I have

25     is in paragraph 205 of our brief.  It's Exhibit 2D211, and the FRY

Page 26972

 1     ministry -- Federal Ministry of Foreign Affairs reported to the federal

 2     government on the 19th that the state delegation had not received any

 3     military annex with similar proposals at Rambouillet.

 4             JUDGE BONOMY:  The --

 5             MR. O'SULLIVAN:  That's a document that was shown to Foreign

 6     Minister Jovanovic.

 7             JUDGE BONOMY:  Well, just give me -- the reference I'm about to

 8     make is to the evidence of Bulatovic, and it's at 13847, where he says:

 9     "It was sent to the federal prime minister and the cabinet by the

10     Ministry of Foreign Affairs asking that the position of the foreign

11     ministry be discussed and that if they're adopted they should become the

12     standpoints of the federal government.  This is a diplomatic response of

13     our ministry to the military annex offered to the negotiators in

14     Rambouillet."

15             MR. O'SULLIVAN:  Yeah, that's exactly what I'm --

16             JUDGE BONOMY:  Which suggests that by the 18th of February --

17     actually, the English is the 19th, but the original says the 18th of

18     February of the exhibit --

19             MR. O'SULLIVAN:  Point 1 is what I just quoted to you.  Point 1

20     of that document says:  "Our delegation did not receive any military

21     annex or similar military proposals at Rambouillet."

22             And paragraph 2 says what I've been saying, Contact Group did not

23     discuss --

24             JUDGE BONOMY:  What do you say about Bulatovic's evidence, is my

25     question.  Is he wrong, or is he lying or what?

Page 26973

 1             MR. O'SULLIVAN:  Well, I don't see a problem with what Bulatovic

 2     said.  They received this document saying there is no -- they had not

 3     received a military annex.

 4             JUDGE BONOMY:  All right.  Please continue, then.

 5             MR. O'SULLIVAN:  And the evidence of Professor Markovic is that

 6     it was presented for the first time at 9.00 in the morning on the 23rd of

 7     February, the last day.

 8             Well, in the period between Rambouillet and Paris, the

 9     Prosecution alleges that there was a complete change of attitude towards

10     the Rambouillet agreement, then, that Milutinovic made a statement to

11     that effect.  That's at paragraph 226 of the Prosecutor's brief, and

12     that's untrue.  Ambassador Petritsch is the source of that claim, but

13     what you have in evidence on the 5th of March -- from the 5th of March is

14     a meeting in Belgrade of the state delegation which was chaired by

15     Professor Markovic, the head of delegation, and attended by

16     Mr. Milutinovic.  And from that meeting came a joint statement of the

17     delegation and Mr. Milutinovic, that they're prepared to continue

18     negotiations in Paris, Belgrade, or Pristina, that they're seeking a

19     peaceful resolution with broad autonomy for Kosovo within Serbia and the

20     FRY.  The same day Mr. Markovic and President Milutinovic co-signed

21     letters to each one of the foreign ministers of the Contact Group.

22     That's annex 11 to our brief.  And what they're reminding -- they're

23     reminding the Contact Group of the situation at Rambouillet.  They're

24     asking the Contact Group to ensure that negotiations continue, and

25     they're asking that negotiations continue free of pressure and threats.

Page 26974

 1             Now, you recall that on the 23rd of March, before leaving

 2     Rambouillet the delegation indicated that more work needed to be done on

 3     certain aspects of the political components.  And this letter says that

 4     the text of Rambouillet has not been agreed, it has not been adopted, and

 5     it's far from ready.  Now, it's also far from ready and it has not been

 6     agreed because the text of Rambouillet at that point includes chapters 2,

 7     5, and 7, and they make reference to that in this letter.

 8             And they also remind the Contact Group foreign ministers that

 9     they're prepared to negotiate, to continue negotiations, and to negotiate

10     the scope and character of international presence on implementation.  And

11     they ask that the campaign which apparently had been brewing at this

12     point to have the Kosovar Albanians sign the agreement before returning

13     to Paris as a fait accompli not take place, and they request that the

14     Contact Group create appropriate conditions for the continuations of

15     talks impartially, without pressure and threat.  So Ambassador Petritsch

16     is wrong.

17             On the 8th of March, and this is paragraph 256 of the

18     Prosecutor's brief, the Prosecutor claims that there was a meeting

19     between President Milosevic, President Milutinovic, Ambassador Petritsch,

20     and German Foreign Minister Fischer.  Well, that's factually incorrect.

21     There was, indeed, a meeting between Foreign Minister Fischer and

22     Mr. Milosevic.  Now, Mr. Fisher was the German foreign minister, and at

23     that time Germany held the Presidency of the EU.  That was the meeting.

24     A larger group including Mr. Milutinovic and Ambassador Petritsch waited

25     in the foyer.  They were not in that first meeting.

Page 26975

 1             Ambassador Petritsch states that while he and Mr. Milutinovic and

 2     others were sitting in the waiting room, Mr. Milutinovic would not

 3     discuss the Rambouillet agreement with him.  Well, why would he?  The

 4     German foreign minister is in talking to the head of state,

 5     Mr. Milosevic, about the agreement.  The foreign minister by the 8th has

 6     received the letter from Mr. Markovic and Mr. Milutinovic asking that

 7     Rambouillet not be a fait accompli before going back to Paris, that they

 8     understand -- that the Contact Group understands that more work is needed

 9     and that they're prepared to continue work.  And Ambassador Petritsch

10     says Mr. Milutinovic was critical.  He complained to him about chapters 2

11     and 7.  He was complaining about the fact that pressure was being put on

12     the Kosovars to sign before Paris, and Mr. Petritsch says, Well,

13     Mr. Milutinovic called it, the agreement, a fake.  Now, remember by this

14     time Ambassador Petritsch knows about the secret side letter.  Why didn't

15     he say to Mr. Milutinovic, You know what, maybe you're right; it is all

16     fake; the Americans have gone off on their own and Mrs. Albright has

17     given assurances to the Albanians that in three years they'll have a

18     right to a referendum in Kosovo and independence, which is contrary to

19     the EU, contrary to Russia, and you certainly wouldn't accept it, would

20     you, in Serbia?  Now, why didn't he say that?  Who's in cahoots with who?

21     That's the problem, Your Honour.

22             And then -- and Ambassador Petritsch comes here and says, Well,

23     Milutinovic took over; Milutinovic killed it.  Because they wanted a war?

24     I mean, put aside the preposterous notion that they started a war so they

25     had a window of opportunity.  We're not talking about stealing someone's

Page 26976

 1     handbag here --

 2             JUDGE BONOMY:  Mr. O'Sullivan, there obviously is a substance in

 3     much of what you submit about the way in which these negotiations were

 4     conducted, but I'm concerned to be sure that there is evidence to support

 5     the criticisms that are made.  Now, is it wrong to think that by this

 6     time the notion of the back letter had been abandoned?  I thought the

 7     evidence was that Mrs. Albright had departed from that idea because the

 8     EU wouldn't back it.

 9             MR. O'SULLIVAN:  No, Your Honour, there are two -- there are two

10     side letters, all right, and we fully describe this in our brief.  The

11     first letter was the 21st of February, and that was a letter from

12     Mrs. Albright to the Kosovar Albanians because she met a day after Thaqi

13     had told the first ministers that it was -- the political agreement is

14     unacceptable.  Mr. Surroi asked Mrs. Albright, Can you give us a letter

15     giving us assurances that in three years we can hold a referendum on

16     independence in Kosovo.  She did that.  She gave them that letter.

17     Mr. Surroi went to Ambassador Petritsch asking if the Europeans, the E U,

18     would do the same thing, give the assurances.  The Europeans said no.  It

19     was vetoed.  The Russians wouldn't agree to it, and the Kosovars were

20     told that evening, the 22nd, that this was not on.  Then we get to the

21     23rd, the last day, and by this time the Serb delegation has said,

22     Further refinement is necessary of the political component; we're ready

23     to discuss the scope and character of international presence for

24     implementation.  And that's when we have Chris Hill coming into the room

25     with the Kosovar Albanians, and they draft a letter from the Kosovars to

Page 26977

 1     Mrs. Albright, the mirror image of it --

 2             JUDGE BONOMY:  If that's what you're talking about, I'm quite

 3     aware of it, but that's their statement of their interpretation of the

 4     agreement.  Is that right?  Sorry, I understood you to be saying that the

 5     letter from Mrs. Albright was still alive by the time we've reached.

 6     Now, tell me what paragraph this is in your brief and it may be clearer

 7     there, but if we're -- if you're saying the second letter is the one from

 8     the Kosovars, then I quite understand that.

 9             MR. O'SULLIVAN:  Correct, that she's put in her pocket and not

10     told --

11             JUDGE BONOMY:  Yeah, all right.  I'm well aware of that.  I

12     thought you were suggesting there were two letters from her.

13             MR. O'SULLIVAN:  No.

14             JUDGE BONOMY:  No.  All right.

15             MR. O'SULLIVAN:  Now, we've -- I've now taken you through

16     Rambouillet, the period between Rambouillet and Paris, and then we're

17     back in Paris.  Now, Ambassador Petritsch claims that at this point

18     Mr. Milutinovic has taken over and there's a backtrack to the compromise

19     on the political agreement reached in Rambouillet by the Serbian side,

20     and we say that's not correct.  You will recall that Mr. Petritsch

21     acknowledged this, and the letters from the Serbs to the Contact Group

22     says this, that there are -- that further refinement is necessary on the

23     political component.

24             So Exhibit 2D384 is, in fact, the revised document, the one that

25     Professor Markovic says was needed to dovetail the political components

Page 26978

 1     of the agreement to be in conformity with the constitutional and legal

 2     frameworks of the FRY and Serbia.  They did exactly what they were

 3     supposed to do.  No one can say they're sitting around doing nothing or

 4     that they're disrupting things or not wanting to negotiate; in fact, the

 5     opposite is quite true.

 6             The same day -- and that was on the 15th of March when they

 7     arrive in Paris.  The same day, Mr. Milutinovic makes a press statement,

 8     which is completely consistent with the actions of the delegation in

 9     presenting this revised political agreement.  He refers to it.  He says

10     the document was prepared in Belgrade and makes proposals that do not

11     change the essence of the agreement but improve it.  What else happens in

12     Paris?  There's three days between the 15th and the 18th of March.  Well,

13     again, the delegation requests a face-to-face meeting.  They request a

14     work -- this is the Contact Group negotiators.  They request a work-plan

15     with an agenda and a work schedule where they can exchange proposals.

16     Professor Markovic told you it was completely ad hoc.  There was no

17     guidance, no rules, no guide-lines.  The third thing they did, they

18     complained about the fact that the delegation from the Republic of

19     Albania was in Paris.  Now, we know the Albanians -- Mr. Petritsch admits

20     it, the Albanians had been fostering the KLA insurgents, terrorists, in

21     Kosovo, and here they are in Paris.  And the fourth important point is

22     that the national communities which are members of the delegation had

23     written a letter to the Contact Group asking that the Rambouillet

24     agreement reflect their interests as minorities - that's the Gorani, the

25     Egyptians, and all the others who are living in Kosovo and Metohija -

Page 26979

 1     which is completely consistent with what the Contact Group had set out in

 2     January by saying respect for all groups including ethnic minorities in

 3     Kosovo.

 4             In addition to that, you have Professor Markovic who said that

 5     Mr. Milutinovic never obstructed the work.  He always supported the state

 6     delegation.  He was always prepared to work for lasting peace and a

 7     political solution.  And ultimately, ultimately, on the 18th of March,

 8     the document is signed by representatives of the Kosovar Albanians,

 9     Ambassador Hill and Ambassador Petritsch.  Mr. Mayorski won't sign it,

10     the FRY doesn't sign it, and of course, Serbia doesn't sign it.  So you

11     have a unilateral signature on a document that we know is politically

12     unacceptable to the Albanians, but for the assurance from Mrs. Albright

13     that they'll have a referendum within Kosovo in three years on

14     independence, which clearly goes against the territorial integrity of the

15     country, clearly goes around the back of the EU, and it's signed by a

16     delegation of Kosovar Albanians that has no standing internationally.

17     It's a non-entity in public international law.

18             JUDGE BONOMY:  Were these chapters, 2, 5, and 7, ever approved by

19     the Contact Group?

20             MR. O'SULLIVAN:  No.

21             Another of the cornerstones of -- and, Your Honour, clearly we're

22     not here to have a round table on the finer points of international

23     diplomacy.  The point I'm making in defending Mr. Milutinovic is no basis

24     to say that any of this points to criminal intent or criminal conduct.

25             JUDGE BONOMY:  I agree.  At one stage I asked myself the question

Page 26980

 1     whether the sort of misleading that one can detect in this scenario is

 2     acceptable in international diplomacy, but that's not a question we have

 3     to answer in this case.

 4             MR. O'SULLIVAN:  Now, another of the cornerstones of the

 5     Prosecution's claim of Mr. Milutinovic's criminal intent and criminal

 6     conduct was that after he derailed this process and destroyed it, that he

 7     persuaded the National Assembly of the Republic of Serbia to reject the

 8     Rambouillet agreement, thus creating the window of opportunity to enter

 9     into a war with NATO, which would allow ethnic cleansing.  Now, there was

10     great fanfare about this in the pre-trial brief and in the 98 bis

11     submission, and there isn't a word of it in the Prosecutor's final brief.

12     I suppose even the Prosecutor wanted to disregard the pernicious lies and

13     fabrications of Ratomir Tanic, who was the only person who even came

14     close to making those claims.

15             Now, the allegations that Mr. Milutinovic did this in the

16     assembly we say is just as preposterous as saying he did those things in

17     1998 and 1999 in Rambouillet in Paris.  Now, Exhibit 1D32 are the minutes

18     of that session of the National Assembly, a public document.  It wasn't

19     hard to get one's hands on 1D32.  The Prosecution could have got it, as

20     well, and we fully review this in paragraphs 236 to 244 of our brief.  On

21     that day, the 23rd of March, the eve of the war, there's a session held

22     at the National Assembly of the Republic of Serbia from 10.00 in the

23     morning until 7.00 at night, and three documents are given to the

24     delegates:  a report by the state delegation, the -- the report of the

25     Rambouillet and Paris process by the state delegation; the second

Page 26981

 1     document is the revised agreement or draft of the 15th of March, 1999,

 2     the ones that the state delegation brought back to Paris; and the third

 3     document is the Rambouillet agreement which was signed by the Kosovar

 4     Albanians, Hill, Petritsch.

 5             Now, Mr. Markovic addressed the National Assembly and gave a full

 6     account of what happened in Paris, Rambouillet and Paris.  It's there to

 7     read.  He was followed by 26 speakers, speakers from the full spectrum of

 8     political life in the Republic of Serbia, including people from new

 9     democracy, Mr. Mihajlovic's party, the Serbian Renewal Party, Mr.

10     Draskovic, the same politicians that Mr. Milutinovic had been meeting

11     with or had met with at the end of 1998 to garner support for what the

12     state delegation was doing in Pristina on the 18th and 25th.

13             To a person, there's praise for the state delegation throughout

14     that session.  What's denounced is the pressure and blackmail, the threat

15     of NATO bombing, and the support for the KLA.  You'll recall that the

16     same National Assembly had sent the state delegation to Paris or to

17     Rambouillet on the 4th of February, 1999, with a clear mandate.  But in

18     addition to that, on that same day in 1D32 you'll see that a five-member

19     commission was set up with representatives from the five major political

20     parties, including the opposition, and two decisions were proposed and

21     voted on in the Assembly.  The first one is -- was this:  The first

22     decision is the National Assembly of the Republic of Serbia does not

23     accept the presence of foreign troops in Kosovo and Metohija.

24             Now, the vote on that decision is 191 in favour, no abstentions,

25     no one against; eight did not vote.

Page 26982

 1             The second decision on that day is this, and I quote:  "The

 2     National Assembly of the Republic of Serbia is ready immediately after

 3     the signing of a political accord on self-government in Kosovo and

 4     Metohija, which is agreed upon and accepted by representatives of all

 5     ethnic communities living in Kosovo and Metohija to consider the volume

 6     and character of international presence in Kosovo and Metohija in order

 7     to implement the agreement reached in this manner."

 8             The vote there is 204 in favour, no one against, no abstentions,

 9     and one person did not vote.

10             Your Honour, as it happens, as circumstances would have it --

11     Your Honour, as circumstances would have it, in the days leading up to

12     preparations for these final submissions, world attention has been turned

13     to some exceptional events which are a matter of interest to all of us

14     who work in this international Tribunal and deal with these sorts of

15     problems, and I'm referring to the conflict between Russia and Georgia.

16     As a matter of interest, I make three points.  When Russia moved its

17     forces into Georgia, it said it was going in to avert a humanitarian

18     disaster.  It said it was going in to bring about regime change.  And

19     once installed in Georgia, Russia told Georgia and the rest of the world

20     they can forget about the territorial integrity of Georgia, that the two

21     former autonomous provinces of the USSR, South Ossetia and Abkhazia are

22     no longer part of the territorial -- the territory of Georgia.  It's an

23     interesting formula, Your Honour, that formulates in this court.

24     Remember, Prosecution witness John Crosland, the British military

25     attache, told the Court that President Clinton, Ambassador Holbrooke, and

Page 26983

 1     Mrs. Albright had decided to bring about regime change in Belgrade and

 2     that one of the tools, one of the tools they would use was the KLA, and

 3     that the internationals turned a blind eye to KLA activities, and that

 4     this was a position that was also present at Rambouillet.

 5             Now, yesterday, Your Honour, Judge Nosworthy asked the Prosecutor

 6     a question about the October Agreements, and, Your Honour, you were

 7     asking whether there would be any legitimate or reasonable expectation as

 8     to KLA conduct under the October Agreements.  Mr. Hannis says that's a

 9     difficult issue.  We say it's not.  Because in addition to what

10     Mr. Crosland told you, and here we set this out in paragraph 222 of our

11     brief, we know that Mr. Holbrooke and Mr. Hill are meeting with the KLA

12     in Junik in June of 1998.  The evidence is that the KLA and the US

13     military attache have had relations since the summer of 1998.  The KLA

14     political wing and the US state department have relations, and there's

15     also evidence in this case that the KVM was giving logistical support to

16     the KLA.  So not only is there acquiescence of what the KLA is doing, we

17     say there's support for it.  I believe that's the answer to your

18     question, Your Honour.

19             Preventing a humanitarian disaster.  One of the questions the

20     Chamber's had is when was the decision made to bomb the FRY?  Well, we

21     know that in the middle of February, Mrs. Albright is stating that if the

22     Serbs -- if the Albanian side sign and the Serbs do not, FRY will be

23     bombed.  On the 20th of February, she's reprimanding Thaqi for not being

24     a leader.  Now, on the 18th of March, Mr. Merovci, who was part of the

25     delegation, before leaving Paris he's told by Mr. Vedrine and Mr. Cook

Page 26984

 1     that bombing will start soon.  Members of the Kosovar delegation

 2     travelled to Brussels on the 18th of March, and General Clark tells them

 3     that bombing will start soon, and what of territorial integrity?  Well,

 4     we've seen, we've seen the side letter or the assurances that the Kosovar

 5     Albanians believed they had from Mrs. Albright.  That was never

 6     disclosed.  And I think we can say that we know what indeed happened in

 7     Kosovo just recently with its unilateral declaration of independence, so

 8     the territory of FRY was up for grabs.

 9             Now, we say it's a matter for the Office of the Prosecutor to

10     decide, it's a matter for the Office of the Prosecutor to decide whose

11     bidding they do; but in the face of overwhelming evidence to the

12     contrary, they're saying that Mr. Milutinovic acted criminally in

13     obstructing, derailing, and destroying the peace process.  Unfortunately,

14     they're asking you to rubber stamp the triumph of realpolitik over the

15     law, and you should have none of it based on the evidence Mr. Milutinovic

16     is guilty, and you should acquit him.

17             Let me turn to the Supreme Defence Council --

18             MR. ZECEVIC:  Your Honours, let me use the opportunity just for

19     the transcript.  Page 80, line 18, instead of "again" it should be

20     Mr. Agani; and 89 -- page 89, line 20, instead of vetoed by Security

21     Council, I believe Mr. O'Sullivan, and that is actually the evidence,

22     that it was vetoed by the EU; and 104, 13, I believe Mr. O'Sullivan said

23     territory of FRY was up for grabs and that didn't enter, 104, line 13.

24     Thank you.

25             MR. O'SULLIVAN:  I thank Mr. Zecevic for the corrections and the

Page 26985

 1     water break.

 2             JUDGE BONOMY:  You think it was the territory of the FRY and not

 3     territory of Kosovo?  No, no, no, I think what you actually -- I'm trying

 4     to remember what you actually said, not to correct it in any way.

 5             MR. O'SULLIVAN:  Well, what I'm --

 6             JUDGE BONOMY:  It was FRY --

 7             MR. O'SULLIVAN:  What I meant to say was that the territorial

 8     integrity of the FRY was up for grabs.

 9             JUDGE BONOMY:  Yeah.  All right.  Thank you.

10             MR. O'SULLIVAN:  Let me turn to some matters regarding the

11     Supreme Defence Council, and I'm referring to the Prosecutor's brief 137

12     to 141.  Let's be clear.  The Supreme Defence Council did not decide on

13     personnel matters, and we say it's time to lay the tired repetition of

14     unsubstantiated allegations to rest.  And we say that because the

15     evidence in this case shows the Prosecutor is wrong, and most of the

16     evidence on this matter is, in fact, Prosecution evidence, and I'll show

17     you that.

18             First, Article 136 of the Constitution of the Federal Republic of

19     Yugoslavia, it says that:  "The president of the FRY appoints, promotes,

20     and dismisses."

21             Then let's look at P984, the Law on the VJ.  Article 151 of that

22     law is the implementing legislation which gives effect to Article 136 of

23     the constitution.  It says that the president of the FRY, among other

24     things, promotes, appoints, issues decisions on generals' transfer,

25     service status, admissions professional military service, and termination

Page 26986

 1     of service.  Then let's look at P935, the minutes of the collegium of the

 2     Chief of the General Staff from the 11th of March, 1999.  We refer you to

 3     paragraph 74 of our brief.  Those minutes reveal that an order was issued

 4     by the president of the FRY to the Chief of Staff.  The order is issued

 5     pursuant to a decision of the military office of the president of the

 6     FRY, and the order is concerning the service status of General Perisic.

 7     They're asked to deal with it.

 8             What do we learn from these minutes of the collegium?  We learn

 9     that pursuant to Article 136 of the constitution of the FRY, Article 151

10     of the Law on the VJ, it's the president of the FRY, not the Supreme

11     Defence Council, that is responsible for regulating a general service,

12     and he does this by decree -- yes, the president of the FRY.  Now, this

13     is evidence led by the Prosecution, and in our submission that should end

14     the matter, but there's more, the Prosecution evidence, and that's

15     contained in the minutes of the Supreme Defence Council itself.

16             Now, let's look at the minutes of the 24th of November, 1998,

17     P1576.  That concerns the appointment of General Ojdanic as the Chief of

18     Staff and the appointment of General Perisic as advisor to the federal

19     government of defence issues until the transformation of the federal

20     Ministry of Defence and the General Staff is completed, at which time

21     General Perisic is destined to become the minister of defence.  I ask you

22     to look at page 5 of these minutes, and President Milosevic is recorded

23     as saying this, first in relation to Article 136 of the FRY constitution.

24     He's recorded as saying, Decisions on the appointment of generals are

25     issued by the president of the republic, the federal republic.  The

Page 26987

 1     practice -- again, President Milosevic:  The practice in the work of the

 2     Supreme Defence Council was to put many issues on the agenda that the

 3     federal government and other organs can decide about.  The council's

 4     opinion was sought even for matters that are exclusively and

 5     constitutionally in the jurisdiction of the president of the republic.

 6             He's also recorded as saying he would always in the future, as

 7     well, consult members of the Supreme Defence Council, presidents of the

 8     member republics about the most important issues pertaining to the army

 9     of Yugoslavia.  Now, President Djukanovic is recorded as expressing a

10     view, and his view is opposed to replacing General Perisic.  He's

11     recorded as saying that he based his opinion on the fact that General

12     Perisic had been the Chief of Staff for a long time and he was good at

13     it.  The record shows this was the only reason why he was not in favour

14     of replacing him, Perisic.

15             Mr. Milutinovic had this to say at page 4:  President Milutinovic

16     had a different opinion with regard to the issue of replacing the

17     superior officer of the General Staff, although he does not contest what

18     President Djukanovic said.  He pointed out that what we need, a Chief of

19     Staff who is an excellent operative.  At the international level, General

20     Perisic acted in accordance with political instructions of legitimate

21     organs of this country's political government.  That was undoubtedly

22     successful.  Nevertheless, he's been holding that post for a long time,

23     and a change should be made, and he added this:  "We now have parallel

24     institutions in the General Staff and the Federal Ministry of Defence and

25     doubling of some activities which is evidently uneconomical and

Page 26988

 1     expensive."  There's a restructuring going on in the Ministry of Defence

 2     and the General Staff.  The parallel institutions are uneconomical and

 3     expensive.  Certainly, General Perisic is qualified to advise the federal

 4     government and to become the minister of defence.  Clearly, Professor --

 5     General Ojdanic, who was one of among many of several candidates

 6     mentioned in these minutes, is qualified.  He was the deputy Chief of

 7     Staff.  So these minutes show that on personnel matters that members are

 8     consulted, opinions are sought, and views are expressed, and the decision

 9     is not within the purview of the Supreme Defence Council.  And the

10     reasons that Mr. -- given by Mr. Milutinovic are quite reasonable given

11     the restructuring that's going on in both the General Staff and the

12     Federal Ministry of Defence.

13             And there's more evidence, more Prosecution evidence to show that

14     the Supreme Defence Council did not decide on personnel matters, and

15     that's the session of the Supreme Defence Council on the 25th of

16     December, 1998, P1000.  Now, at page 5, right across the middle of the

17     page in bold print, it says:  "Report on proposed amendments" -- excuse

18     me.  "Report on proposed appointments in the Yugoslav Army submitted for

19     decision to the president of the Federal Republic of Yugoslavia."

20             And then we invite you to look at pages 9 and 10.  There,

21     President Djukanovic on page 9 says that this item comes under the

22     heading "information," which means it is only presented for the council's

23     notification but that it is not decided on by the council but by the FRY

24     president.  He's recorded as saying other participants could give their

25     opinions, and he needed more extensive information on the candidates to

Page 26989

 1     express an opinion.  He also says he's heard conflicting information

 2     coming from Kosovo concerning the Pristina Corps.

 3             Now, at that point President Milosevic says that a mistake has

 4     been made and more detailed information should have been provided to

 5     Mr. Djukanovic and Mr. Milutinovic, and Mr. -- General Ojdanic provides a

 6     file to the two other members of the VSO.

 7             Then the next line of the minutes says:  "After looking at these

 8     documents, President Djukanovic said that that was quite sufficient."

 9             Mr. Milutinovic, after looking at the file, says that some

10     reports of alleged lack of discipline and unconstitutional action by the

11     Pristina Corps were usually inflated.  Now, the word "inflated" is in

12     quotation marks.  Now, wouldn't that suggest that he's quoting from the

13     file he's looking at?  Nothing else is in quotation marks.

14             Then there's a final position adopted unanimously, and the

15     position is that in Kosovo and Metohija the Yugoslav Army operated in

16     accordance with the rules of service and the Pristina Corps carried out

17     its tasks very successfully.  Now, you've heard the evidence of other VJ

18     officers who've testified, in particular in relation to General

19     Pavkovic's promotion.  The OTP witness Mr. Loncar said that General

20     Pavkovic was an excellent -- exceptional, professional, and military

21     leader and that his promotion to the command of the 3rd Army was fully

22     warranted.  General Simic, who was deputy commander and chief of the 3rd

23     Army when General Pavkovic was in the Pristina Corps, said he never heard

24     any complaints about the Pristina Corps operating in an illegal manner or

25     outside the chain of command.  General Pavkovic received the highest

Page 26990

 1     grades on his assessment prepared by his superiors.  Another example is

 2     General Lazarevic who testified that he did not have any information

 3     about General Pavkovic skipping a step in the chain of command in 1998 or

 4     1999.

 5             So far I've been presenting you Prosecution evidence by and

 6     large.  Let me complete this -- these submissions on this matter that the

 7     Supreme Defence Council did not promote, and the totality -- before I

 8     move on to that, the totality of this evidence shows that there were --

 9     that the allegations of -- that the allegations of irregular or illegal

10     activity were, indeed, unfounded.

11             Finally, I wish to refer to the evidence of a Defence witness,

12     Branko Fezer, who was the deputy head of personnel administration in the

13     VJ, and we referred to him in paragraph 77, and he states that all

14     personnel matters in 1998 and 1999 prior to the war and during the war

15     were made pursuant to order of the president of the FRY, Mr. Milosevic,

16     pursuant to Article 136 of the constitution, and 151 of the Law on the

17     VJ.

18             So but for the evidence of several VJ officers, all this evidence

19     is Prosecution evidence, evidence tendered by the Prosecution and

20     evidence upon which the Prosecutor wants you to rely; and contrary to the

21     allegations, we see that the Supreme Defence Council did not decide on

22     personnel matters.  Those are the decisions of the president.  There was

23     nothing nefarious about the appointments of General -- or promotions of

24     General Ojdanic, General Perisic.  The promotions of Pavkovic and

25     Lazarevic were part of a customary year-end changes in the VJ.

Page 26991

 1             I wonder if it might be appropriate to stop here.

 2             JUDGE CHOWHAN:  Well, I have a little question on this word

 3     "consultation."  Now, what will be its sweep in context with the

 4     constitution here?  Because a consultation can -- consultation will

 5     normally apply meaningful consultation in the matters of appointment.

 6     Otherwise, this power will not be given to the SDC.  So what was the

 7     scope of this consultation, and I will request you can answer tomorrow.

 8             And the second thing is that what the learned Prosecutor has been

 9     telling us that in case your client had the knowledge of certain wrongs,

10     why did not he bring these up in the agenda pursuant to Rule 3 or 4 or

11     whatever, 5, of the SDC rules?  Now, it will be nice if you could kindly

12     dilate on this to clear such matters, but I won't bother you at this

13     time.  You can do it tomorrow.  I'm very grateful.

14             JUDGE BONOMY:  Thank you, Mr. O'Sullivan.  We'll adjourn now

15     until tomorrow at 9.00 when your submissions will continue.

16                           --- Whereupon the hearing adjourned at 3.29 p.m.,

17                           to be reconvened on Thursday, the 21st day of

18                           August, 2008, at 9.00 a.m.