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
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
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
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.
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
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
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
15 also in the 10 December 1998
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
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.
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
15 Disarming all the Siptar Albanian villages.
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.
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
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.
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
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.
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
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
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
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
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.
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
10 this evidence we say clearly shows that the Joint Command continued to
11 exist up to and including the 1st of March.
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
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
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
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
25 MR. HANNIS: Yes.
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.
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
1 area. That Joint Command order is dated the 24th of March, 1999
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
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
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
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
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
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
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
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
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
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.
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.
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
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.
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
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
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
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
15 leadership in Serbia
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,
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
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
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,
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
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
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
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
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
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
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
1 where to go and where to get the bodies, and he carried out those
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
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
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
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
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
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
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
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
1 Protic said happened when the news broke when it was on the front page of
2 the newspapers in Belgrade
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
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
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
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
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
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
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
1 we say the circumstantial evidence leads to only one reasonable
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.
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.
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
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
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
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
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
14 THE INTERPRETER: Kindly slow down for the interpretation. Thank
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,
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
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
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
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
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
1 mentioned in an attempt to move the process forward through shuttle
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
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
1 Kosovo who were there back in Belgrade
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
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
14 be the main pillar of a political solution within the framework of the
15 FRY and Serbia
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
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
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
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
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
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
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
16 Petritsch and Momir Bulatovic about the notion of greater Albania
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
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
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
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
23 the 4th of February, 1999, the National Assembly of the Republic of
25 a delegation of experts and experienced members, gave them a mandate
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
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
1 took off her headphones in exasperation, apparently. And Mr. Cook said,
2 Something's missing which is non-negotiable, and the meeting was
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
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
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
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
25 MR. O'SULLIVAN: I'll find the reference. It's a clip that was
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
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
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
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
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
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
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
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,
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
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
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.
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
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
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
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?
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
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
19 peaceful resolution with broad autonomy for Kosovo within Serbia
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.
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
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
24 A larger group including Mr. Milutinovic and Ambassador Petritsch waited
25 in the foyer. They were not in that first meeting.
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
20 you, in Serbia
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
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
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
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
1 of the agreement to be in conformity with the constitutional and legal
2 frameworks of the FRY and Serbia
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
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
11 change the essence of the agreement but improve it. What else happens in
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
20 it, the Albanians had been fostering the KLA insurgents, terrorists, in
21 Kosovo, and here they are in Paris
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 -
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
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
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
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
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
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
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
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
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.
1 The second decision on that day is this, and I quote: "The
2 National Assembly of the Republic of Serbia
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
18 disaster. It said it was going in to bring about regime change. And
19 once installed in Georgia
20 they can forget about the territorial integrity of Georgia, that the two
21 former autonomous provinces of the USSR
22 no longer part of the territorial -- the territory of Georgia
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
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
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
1 that bombing will start soon. Members of the Kosovar delegation
2 travelled to Brussels
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
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
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
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
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
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
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
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
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
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
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
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.
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.