130311IT

Page 166

1 judgement, counsel for Mr. Lazarevic and the Prosecution are also invited

2 to advance submissions on aiding and abetting liability in the course of

3 their submissions on Wednesday, 13 March.

4 As set out in the Scheduling Order of 31st January 2013, this

5 hearing will proceed as follows: First, we hear the submissions from the

6 counsel for Mr. Sainovic for one hour. We will then pause for

7 15 minutes. After counsel for Mr. Sainovic completes his second hour of

8 submissions, the Prosecution will respond for one hour. Following a

9 pause of one hour and 30 minutes, the Prosecution will complete its

10 second hour of response, after which counsel for Mr. Sainovic will reply

11 to Prosecution's response.

12 Tomorrow, we will hear the submissions regarding Mr. Pavkovic's

13 appeal. Counsel for Mr. Lazarevic and Mr. Lukic will present their

14 submissions on Wednesday and Thursday respectively. Finally, on Friday

15 we will hear submissions concerning the Prosecution's appeal.

16 By the end of the hearing, the Defence will each have the

17 opportunity to make a personal address for ten minutes, if they wish to

18 do so.

19 Having now stated the manner in which we will proceed, I would

20 like to invite counsel for Mr. Sainovic to present his appeal.

21 MR. FILA: [Interpretation] Thank you, Your Honour, Mr. President.

22 Your Honours.

23 In its appeal brief our Defence has stated in detail and

24 precisely all the reasons why it believes that the trial judgement is

25 legally and factually untenable and that this Appeals Chamber should vary

Page 167

1 that judgement in all the parts establishing the individual criminal

2 responsibility of Mr. Sainovic and return a judgement of acquittal. The

3 Defence stands by fully by its pleadings from the appeals brief. The

4 Defence does not abandon a single one of its grounds or subgrounds of

5 appeal, finding that even after four years from the trial judgement the

6 grounds of appeal are profoundly justified; that the trial judgement is

7 full of contradictions, inclarities, a lack of logic, and legally

8 controversial findings.

9 The Defence believes that this appeal hearing is not an

10 opportunity to repeat all the arguments. The Defence is convinced that

11 this Appeals Chamber has carefully read the submissions of the parties;

12 and therefore, the Defence shall focus its submissions to just a few

13 issues that it believes are of particular importance and sufficiently

14 illustrative to point to the erroneous logic and erroneous conclusions

15 about facts and law which made the Trial Chamber make conclusions that

16 not a single reasonable trier of fact would have made.

17 The Defence will deal here with the finding that Sainovic was a

18 political co-ordinator; the findings related to the existence of the

19 joint criminal enterprise, the so-called Joint Command; the findings

20 related to the events of 1998 that are copied on to year 1999; findings

21 regarding the intent of Mr. Sainovic with regard to the act for which he

22 was convicted by the trial judgement; and the sentence.

23 Joint criminal enterprise para 61, 62, and 64. The Defence will

24 first deal with the issue of existence of the joint criminal enterprise,

25 whose purpose, according to the trial judgement, was to ensure the

Page 168

1 continued control of FRY and Serbia over Kosovo through the commission of

2 crimes, widespread and systematic campaign of terror and violence which

3 resulted in the forced displacement of the Albanian population of Kosovo

4 inside and outside of Kosovo, 95, Volume III. The Trial Chamber has no

5 first-hand evidence of a criminal plan and therefore seeks and finds

6 evidence of its existence in the pattern of events, 17, Volume III. What

7 does the Trial Chamber do in its attempt to establish the existence of a

8 criminal plan? There is no direct evidence of existence of a plan;

9 however, there are a plethora of witnesses who clearly testified there

10 was no plan. They never heard of one; they never saw one. These are

11 witnesses who, in view of their position and work they carried out in

12 1999, must have known if a plan had existed. However, the Trial Chamber

13 rejects the testimony of all these witnesses, direct participants in the

14 events, and says that these witnesses who claim there was no plan either

15 had a motive to lie to protect themselves and others or were simply not

16 in a position to know of a plan or are simply speculating based on

17 inadequate information, 93, Volume III.

18 The Trial Chamber does not even explain why it believes that

19 these witnesses are not telling the truth. It simply says that the

20 witnesses who say there was no plan are lying. However, not even the

21 witnesses that are not called liars by the Trial Chamber also know

22 nothing about a plan. Numerous foreigners in Kosovo who monitored the

23 Serb side in numerous documents and their evidence before the

24 Trial Chamber also failed to provide a shred of evidence about a plan.

25 These witnesses include people who headed large teams made up as a rule

Page 169

1 of military officers from NATO member countries, OSCE mission, the

2 Contact Group, diplomatic observer missions, et cetera. These witnesses,

3 too, know nothing of a plan, but the Trial Chamber does not say they were

4 lying.

5 The Trial Chamber found that a plan existed and that the accused

6 were waiting for the attack of the most powerful military alliance in the

7 world in order to realise their criminal plan under those circumstances.

8 The Chamber, therefore, concludes that out of all the possible

9 situations, Serbia and the FRY were waiting for the least favourable one,

10 the conflict of Serbia with NATO, the only one of all situations that

11 could certainly not end in FRY and Serbia's victory. The allegation that

12 the air strikes, that is to say war with NATO, was the opportunity they

13 were waiting for to displace Kosovo civilians, 90, Volume III, is a

14 finding that not a single reasonable trier of fact would have made.

15 Therefore, the Serbs were waiting to be attacked by NATO to start

16 implementing their permanent goal: Kosovo without Albanians, which was

17 contrary to the NATO objective in that war. Serbs, therefore, according

18 to the finding of the Trial Chamber, moved to implement a plan that was

19 possible to implement only if they defeat NATO.

20 The Trial Chamber notes that at least 700.000 Kosovo Albanians

21 left Kosovo as a result of deliberate actions of the FRY and Serbia's

22 forces, 1178, Volume II. The Chamber, however, rules out all the other

23 reasons why the population was leaving their homes. The Trial Chamber

24 fails to consider the consequences of the bombing of the civilian convoy

25 with Kosovo Albanians near Djakovica in April 1999 or the bombing of

Page 170

1 Korisa village in May 1999 or the bus near Luzine village in May 1999.

2 And how many people out of the minimum 700.000 left out of fear from

3 these mass deaths caused by NATO bombing? The NATO was bombing towns,

4 Pec, Djakovica. What is happening with their population? We have

5 evidence of that in the case including very credible evidence obtained

6 under Rule 70, but the Trial Chamber ignores and neglects everything that

7 does not fit the previously defined picture.

8 In its appeals brief the Defence, as part of its sixth ground of

9 appeal, provided other reasons why it finds the conclusion of the

10 existence of the criminal plan unfounded.

11 Nikola Sainovic was designated in the indictment pleaded by the

12 Prosecutor before the Trial Chamber also as the commander of the

13 Joint Command which commanded, controlled, guided, and otherwise exerted

14 effective control over FRY and Serbia's forces in Kosovo.

15 Nikola Sainovic put up a defence against these charges. And this Defence

16 team concludes that his defence was successful because the trial

17 judgement does not state anywhere that Sainovic was the commander of the

18 Joint Command, nor that he commanded or controlled VJ and MUP of Serbia

19 forces in Kosovo at the indicted time.

20 However, instead of acquitting Sainovic from the charges of the

21 Prosecution that Sainovic was the commander of the Joint Command is not

22 proven, the Trial Chamber convicts him to years of imprisonment for

23 something that he was never charged with. The Trial Chamber convicted

24 Sainovic as the political co-ordinator of VJ and MUP forces in Kosovo.

25 Sainovic -- Sainovic's Defence was not against his political

Page 171

1 co-ordination of forces in Kosovo. His defence was against charges that

2 he commanded these forces, that he planned and ordered their use. If

3 Sainovic had been informed that he was not charged as the commander of

4 the Joint Command but as a political co-ordinator, his defence case would

5 have been probably conceived in a different way. He would have brought

6 different witnesses and led evidence of different facts.

7 The Defence wishes to emphasise that by virtue of the fact that

8 Sainovic was not charged as political co-ordinator but as the commander

9 of the Joint Command commanding VJ and MUP forces, Sainovic was denied

10 the right to a fair trial. Of course, in the eyes of the Defence what is

11 controversial is not only the fact that Sainovic was convicted for

12 something he was not charged with. Deeply controversial in the opinion

13 of this Defence is the very content of the conclusions on Sainovic as a

14 political co-ordination.

15 In paragraph 331, Volume III, the Trial Chamber states that the

16 VJ and the MUP associated themselves with politicians, that the VJ and

17 MUP had to seek approval from Milosevic, and that is why Sainovic's role

18 was decisive. The Trial Chamber uses three groups of evidence to attempt

19 to prove this allegation: A, meetings designated as meetings of the

20 Joint Command; B, other meetings; and C, a string of claims that

21 Sainovic -- that attempt to designate Sainovic as Milosevic's man for

22 Kosovo.

23 The Defence will deal first with issues related to the so-called

24 Joint Command. Already now the Defence wishes to stress that the

25 overwhelming majority of evidence used by the Trial Chamber in its

Page 172

1 analysis relate to 1998, a year that was not charged in the indictment.

2 How does the Trial Chamber reach its conclusions? It cites in detail the

3 content of P1468 and provides explanations of the entries, 306,

4 Volume III, up to 314, Volume III, paragraphs 1 to 13. It cites

5 witnesses who never participated at meetings in Pristina, Crosland, 320,

6 Volume III; Petritsch, and Kickert, 326, Volume III, paras 1 to 18. It

7 cites Cvetic who is contested by all the other witnesses and states that

8 Cvetic is impressive. It cites Cvetic who had no direct insight into

9 what is called the Joint Command because he never attended meetings about

10 he -- which he testified, 315, Volume III, 1 to 14. It cites the

11 telegram where Crosland notes what Dimitrijevic [Realtime transcript read

12 in error "Drewienkiewicz"] said, 320, Volume III. And then the

13 Trial Chamber calls Dimitrijevic to clarify what he had told Crosland,

14 P683. When Dimitrijevic explains what he said, the Trial Chamber rejects

15 everything said by one of only two witnesses that the Trial Chamber

16 invited itself because it obviously does not fit the context of

17 preconceived opinions created by the Trial Chamber, 325, Volume III,

18 paras 1 to 3. A correction to the transcript. The name is not

19 "Drewienkiewicz," it's "Dimitrijevic," General Dimitrijevic.

20 Another witness called by the Chamber is Djakovic, the one who

21 wrote that document, P1468, so that he should clarify. But although it

22 does not say that Djakovic lacks credibility, 330, Volume III, unlike

23 Dimitrijevic, the Chamber rejects all Djakovic's clarifications regarding

24 P1468, paras 1 to 13.

25 The Trial Chamber accepts one-half of Gajic's evidence and

Page 173

1 rejects the second half given the next day on the same matters, 318,

2 Volume III, paras 2 to 5. The Trial Chamber ignores all the other

3 obvious and proven issues that indicate that Sainovic's role lack the

4 characteristics of key role. The Trial Chamber ignores its own

5 conclusions, including the existence and functioning of all chains of

6 command that there is a Supreme Defence Council which exists, operates,

7 and makes decisions; that there is a plan to combat terrorism in 1998

8 that is adopted at the highest level; there is a directive of the

9 Chief of General Staff, Grom 98. There are 20 witnesses heard in the

10 case that confirm the chain of command was intact. I repeat, the

11 Supreme Defence Council consists of Milutinovic, Milosevic, and

12 Djukanovic, not Sainovic.

13 The Trial Chamber therefore concludes, based on witness -- on the

14 evidence of witnesses on matters on which they had no direct knowledge

15 nor could they have first-hand knowledge and based on its own

16 interpretations of several written pieces of evidence. When the Chamber

17 invites the authors of these documents to testify and explain their

18 content, the Chamber rejects all their authentic clarifications and

19 explanations.

20 The Trial Chamber in its own analysis seeks to find evidence that

21 would -- should a document -- Sainovic's role in Kosovo and finds only a

22 few. The first is a meeting of 29 October 1998, where reports are made

23 by Pavkovic, Lukic, and Minic. Sainovic does not take part in that

24 meeting; he only briefly talks about the OSCE mission. Then there is a

25 meeting of 5 November 1998, where Milutinovic, who is acquitted of all

Page 174

1 charges, speaks, explains, instructs, and Sainovic says nothing.

2 Milutinovic is acquitted, although he spoke, explained, and instructed.

3 Sainovic is convicted although he just sat in on this meeting and this

4 meeting is treated as evidence of his key role.

5 Finally, in 1999 the Chamber establishes Sainovic's participation

6 at four meetings. The war lasted from March to June. The evidence

7 speaks to one meeting in April, two in May, and one in June. The

8 substance of these meetings is of no value if one is seeking grounds to

9 conclude that Sainovic played a key role or that he played a role as

10 political co-ordinator. The war with NATO and the war with the KLA

11 require that the co-ordinator of an army and police that are at war hold

12 tens of meetings every day, not four meetings in three months.

13 What did Sainovic co-ordinate in 1999? Who did he co-ordinate?

14 In which way did he co-ordinate? What are the consequences of his

15 co-ordination on the ground or in relation to any crime? Is there an

16 action or operation that was co-ordinated by Sainovic? Not a word about

17 that, not a shred of evidence, not even an assumption. The Trial Chamber

18 ignored its elementary obligation to explain each and every finding. The

19 meeting at which he speaks about the OSCE mission from October 1998, the

20 meeting where he doesn't say anything in November 1998, and four meetings

21 held during the three months of war, during which he does not convey any

22 orders, does not issue orders, did not issue any instructions, on the

23 basis of such evidence there is no reasonable trier of fact who could

24 accept that Sainovic is a key person and - I repeat once again - a

25 political co-ordinator. This is a term that was never clarified.

Page 175

1 What is particularly controversial is the finding of the Chamber

2 that Sainovic conveys Milosevic's orders. This conclusion is based on a

3 single sentence from P1996, where Sainovic is quoted as saying that

4 Milosevic heard the reports of the commander of the 3rd Army and the MUP

5 staff for Kosovo and that a public release was issued which constitutes a

6 directive and an order of the Supreme Command. It is a point of interest

7 that Slobodan Milosevic died eight years ago on this day. Everything

8 that Sainovic did is indicate this public statement, this release, from

9 the meeting of the commander of the 3rd Army and the leader of the MUP

10 staff at Milosevic's.

11 Even more importantly, at the time when this release was made it

12 had already been given to the members of the MUP. Already on the

13 6th of May, 1999, this information was -- that is mentioned in the

14 context of Sainovic was submitted to the secretariats of MUP and Kosovo

15 on the 7th of May, 1999. That is 5D1289. The Defence would like to note

16 that the only evidence in the judgement that indicates that Sainovic is

17 conveying Milosevic's orders is precisely the one that Sainovic indicated

18 this news article. The Trial Chamber in its analysis was not in a

19 position to indicate any other part of the evidence that would suggest

20 anything similar to that. All the rest is merely in the sphere of

21 assumption in terms of the relationship between Sainovic and Milosevic.

22 There is not a single reasonable trier of fact for whom an indication of

23 a news article would replace necessary evidence on a key connection that

24 Milosevic had with Sainovic in terms of the forces in Kosovo according to

25 the Trial Chamber. Also at the meeting held on the 17th of May, 1999,

Page 176

1 Sainovic played a role that was more than marginal. At the meeting

2 Sainovic makes a few comments in passing, whereas others are discussing

3 the essence of the problem of course in accordance with obligations and

4 responsibilities they had with regard to the situation in Kosovo.

5 The conclusion that Sainovic is the key link between Milosevic

6 and Kosovo is something that a reasonable trier of fact can find only if

7 there is evidence on communication between Sainovic and Milosevic and

8 Sainovic the forces of the Army of Yugoslavia and MUP and Kosovo.

9 However, there should also be an absence of evidence that Milosevic had

10 available numerous other channels of communication.

11 However, what is the only thing that does exist in the evidence

12 in this case? Evidence regarding communication between Sainovic and

13 Milosevic at the time relevant to the indictment. Three meetings, two of

14 which were about ten minutes long. What was discussed at these meetings?

15 What, if anything, did Sainovic say to Milosevic or Milosevic to

16 Sainovic? There is no evidence with regard to that whatsoever. Then,

17 evidence about communication between Sainovic and the VJ and MUP in

18 Kosovo, two meetings in the MUP, one meeting with the representatives of

19 VJ and MUP at the very end of the war after all the events that are

20 referred to in the judgement. I repeat, he took part in these meetings

21 very briefly. He came, he exchanged greetings, and he left.

22 As far as evidence is concerned about the communication between

23 Milosevic and the VJ and MUP, things are completely different. There are

24 hundreds of combat reports, orders, directives, a great deal of

25 testimony, and all of that with the absence of any evidence on any kind

Page 177

1 of obstruction in this communication. Is there any evidence that

2 Sainovic is issuing any kind of orders or communicating in this way?

3 Also, what is unreasonable is to conclude that Sainovic was sent

4 to Kosovo on a one-day mission to -- which was a fact-finding mission and

5 that he enjoys Milosevic's trust as if the president of the state has a

6 single source of information regarding the key problem in the state as if

7 the president of the state has only a single man of confidence.

8 Now, what does the Trial Chamber do? They deny everything that

9 can be concluded on the basis of documents and testimony because

10 Bulatovic is not the only possible authority -- source of authority of

11 Sainovic is Milosevic, and Sainovic is just one of the five deputy

12 prime ministers and Bulatovic is prime minister.

13 The Trial Chamber does not make a distinction between evidence

14 and fact and what are mere impressions. Also, what are all the

15 possibilities for reaching conclusions? Were they properly analysed?

16 Were they excluded? What is the principle in dubio pro reo? That is

17 something that exists in European law and that is something that

18 first-year law students know. Also, it is -- is it possible to conclude

19 on the basis of probability that there is liability? Also, is there any

20 proof of what Milosevic is, what his role is, or is it possible to

21 establish that without any facts in evidence. With regard to the

22 position of Sainovic and his relationship with Milosevic, the

23 Trial Chamber judges on the basis of prejudice about Milosevic and

24 prejudice about Sainovic. That is not done by any reasonable trier of

25 fact.

Page 178

1 About Sainovic who makes decisions and influences events, that is

2 something that Witnesses Naumann and Vollebaek testified about and they

3 came for the implementation of the agreement of the verification

4 commission -- mission the OSCE in the autumn of 1999, and they take part

5 in talks with Sainovic who heads the commission for co-operation with

6 that mission. They speak about their impressions and they come for this

7 co-operation with the OSCE. They don't know anything about the

8 Army of Yugoslavia, about the MUP, about relations in Serbia and the FRY.

9 They have impressions but they don't have knowledge. Impressions are not

10 a basis for a reasonable trier of fact to reach certain findings.

11 Ciaglinski, a lieutenant-colonel, never met a single member of

12 the Government of the FRY or Serbia. He doesn't know anything about the

13 work of this government, doesn't know anything about the relations within

14 that government. This witness says: I only could have imagined that

15 only Milosevic was above Sainovic. Again, an assumption. The intuition

16 of any witness is not a basis for reaching a conclusion. After all,

17 Milosevic wanted to be above all of us, not only above Sainovic.

18 Maisonneuve saw Sainovic only once at a meeting that was attended by

19 several people. The meeting was chaired by Keller. He did not have any

20 direct knowledge about the position and role of Sainovic. Petritsch and

21 Byrnes also speak about Sainovic, but the Trial Chamber quotes part of

22 their testimony where they present impressions; however, when they speak

23 about the substance of work and the activity of Sainovic when they

24 explain what their co-operation with Sainovic was like, that is something

25 that the Trial Chamber ignores. A first impression is not sufficient and

Page 179

1 content and explanations are not of relevance. That is the evidence of

2 Sainovic's authority and influence over events, impressions and

3 assumptions, not a shred of evidence. You will allow me a bit of a

4 digression.

5 Mr. Petritsch spoke about the role of Milan Milutinovic. Had

6 Mr. Petritsch said about Sainovic what he said about Milutinovic,

7 Sainovic would be serving life today; however, that did not matter,

8 obviously, to the Prosecution or the Trial Chamber. I hope that you will

9 carefully read that part. What was this order that Sainovic conveyed

10 from Milosevic about a news article that Sainovic indicated, that is

11 something we've already mentioned? If what is meant is the order on

12 cessation of activities which according to the Trial Chamber Sainovic

13 conveyed at the meeting held on the 1st of June, 1999, it is impossible

14 that Sainovic could have conveyed the order on withdrawal as a

15 consequence of an agreement which had not even been concluded at that

16 point in time. The agreement between Milosevic and Ahtisaari is in the

17 case file and it was concluded on the 4th of June, 1999. I repeat, on

18 the 1st of June, 1999, Sainovic was at a meeting. Four days later,

19 Ojdanic authorised senior officers of the VJ to negotiate withdrawal with

20 NATO and the Military Technical Agreement was concluded only on the 9th

21 of June, 1999, so the Trial Chamber ascribes to Sainovic an order which

22 could not have even existed. They ascribe to Sainovic action which is in

23 clear discrepancy with the other findings from this same Trial Chamber.

24 How can someone convey an order that is reached on the 9th, how can one

25 convey that on the 1st?

Page 180

1 The Trial Chamber establishes Sainovic's key role, but nowhere is

2 it established in the evidence which order did Sainovic issue on his own,

3 if any. There is none. Which activity of Sainovic's reflected on what

4 was happening on the ground and how? There is no such thing. Which

5 activity of Sainovic's was -- had the characteristics of a crime? Not a

6 single one. Which activity of Sainovic's was not in keeping with his

7 position of the deputy prime -- federal prime minister or his position of

8 chairman of the commission for co-operation with the OSCE? Not a single

9 one.

10 Regarding Milosevic's trust in Sainovic, in paragraph 292 of the

11 judgement what is heralded is an explanation of that circumstance but

12 that is not referred to at all in the text of the judgement; that is

13 simply because there is no evidence of this kind. There is no evidence

14 regarding any kind of special relationship between Sainovic and Milosevic

15 because such relationship did not exist. On the contrary, there is

16 evidence that refutes any kind of special ties between them. The Defence

17 of Sainovic thinks that there may be a mistake. There is a special

18 relationship between Milutinovic and Milosevic, and now Sainovic is being

19 replaced in that context. Let me go on. Milosevic in negotiations in

20 Rambouillet and on other occasions had his Special Envoy, also a

21 deputy federal prime minister, but his name was Vladan Kutlesic not

22 Nikola Sainovic. Sainovic was marginalised in the socialist party of

23 Serbia. We presented evidence that Sainovic was dismissed from the

24 position of vice-president of the SPS in 1997. If he was that close to

25 him, he wouldn't have dismissed him.

Page 181

1 Milosevic proposes that there be a Working Group of the

2 Socialist Party of Serbia, he also proposes a chairman of this Working

3 Group, and Sainovic is not even a member of that group, let alone the

4 leader of that group. Milosevic proposes Milutinovic to be president of

5 Serbia, not Sainovic, thereby also member of the Supreme Defence Council.

6 He keeps Milutinovic at all high positions in the Socialist Party of

7 Serbia, but for the Trial Chamber that was not proof of closeness as

8 opposed to the Sainovic case. Why the Defence wonders? Because

9 Milutinovic in his interview to the OTP said to his wife that at the time

10 when all of this happened he confided that he did not agree with

11 Milosevic. That is the only evidence that they -- that they adduce.

12 Milutinovic was not -- had Milutinovic opposed Milosevic, there would

13 have been no war, had he contradicted him in 1998, none of this would

14 have happened.

15 And confiding in his wife that he disagreed with Milosevic? That

16 was sufficient for the Trial Chamber to conclude Milutinovic is not close

17 to Milosevic. Throughout the war, Milutinovic -- throughout the state of

18 war, Milutinovic was at the command post with his wife and Milosevic was

19 with his wife. They were next door day and night, 78 days except when he

20 went to Kosovo. Sainovic throughout the state of war had two or three

21 meetings with Milosevic that have already been mentioned, but not in

22 private quarters and not in the presence of wives. However, the

23 Trial Chamber acquits Milutinovic because he's not close and convicts

24 Sainovic because he is close. This is just a telling example of the

25 double standards that are applied by the Trial Chamber when assessing

Page 182

1 closeness with Milosevic.

2 A reasonable trier of fact uses reasonable criteria and bases

3 conclusions on facts, disregarding opinions of witnesses, assumptions,

4 and impressions. With regard to the position of Sainovic and his

5 position of authority, everything is just an opinion, an impression;

6 there is no evidence whatsoever to that effect. After all, you will see

7 that the police was subordinated to Milutinovic, not Sainovic, because

8 the police is Serbian and Sainovic was in the federal government.

9 The existence of a Joint Command and the nature of a

10 Joint Command. An explanation as to who needs a Joint Command is

11 provided by the Trial Chamber through Dimitrijevic, but through an

12 erroneous and incorrect interpretation of Dimitrijevic. Although

13 Dimitrijevic only speaks about Pavkovic's action in relation to the VJ,

14 the Trial Chamber understands that as a way of co-ordinating between the

15 VJ and the police. However, Dimitrijevic makes no reference to the

16 police. He says that he's speculating when testifying about the

17 Joint Command. I do apologise. I do apologise. It's elderly people who

18 get the flu first.

19 As I've already said, Dimitrijevic does not refer to the police

20 at all. He, himself, says that he is speculating as regards

21 Joint Command; however, this does not prevent the Trial Chamber from

22 basing on Dimitrijevic their conclusion that there is a Joint Command for

23 ensuring better co-ordination between the army and the police. A

24 reasonable trier of fact cannot construe evidence in that way and then

25 base findings on that.

Page 183

1 The Trial Chamber finds on the basis of positions of the witness

2 in a different context - and that is that he himself says it's

3 speculation - they base their findings on that and they are ignoring

4 consistent evidence about the co-ordination of VJ and MUP actions in

5 1998. When talking about the content of Joint Command, the Chamber

6 ignores the following participants: Minic, Matkovic, Andjelkovic,

7 Djakovic, that have already been called by the Trial Chamber. And he

8 says that these are not the kind of documents that the OTP says, and he

9 says that he and Pavkovic created the name of the meeting as

10 Joint Command. The Chamber ignores the testimony of Mijatovic,

11 Vucurevic, Adamovic, and they only trust Cvetic who was not there and who

12 did not see any of that. The Chamber considers 40 witnesses who are

13 explaining Joint Command, and the conclusion they reach about the nature

14 of Joint Command is similar only to the testimony of a single witness,

15 this notorious Cvetic.

16 Why doesn't the Chamber appreciate what more than 40 witnesses

17 say about the nature of the Joint Command? Why don't they trust them?

18 Why don't they explain this? Why do they trust only Cvetic? I repeat,

19 he was not there. He did not see this. He had no idea about any of

20 this. This position taken by the Trial Chamber is flagrant ignoring of

21 evidence and accepting assumptions as facts.

22 You know, my professor of law - this was a long time ago, half a

23 century ago - he said a sentence that stands forever, that all the

24 assumptions in this world fall if you have a shred of evidence. And the

25 Chamber does the opposite: They are ignoring evidence and trusting

Page 184

1 assumptions. The Chamber explains with a single sentence their findings

2 on the authority of the Joint Command. Their meetings were more than a

3 daily exchange of information. This position is a telling example of

4 this impermissible imprecision in reaching conclusions more than an

5 exchange, but what is this more? What was said? What was ordered? What

6 was done? What happened? If a reasonable trier of fact says that it is

7 not an exchange of information but it's more than that, they have an

8 obligation to say what this more is. So this is a serious mistake of the

9 Trial Chamber. Conclusions about the authority of this Joint Command

10 over the VJ and the MUP is something that the Trial Chamber bases on a

11 few examples from 1998. All of these examples are untenable. They all

12 show that lines of subordination have been kept. I do apologise once

13 again.

14 JUDGE LIU: Well, counsel, could I ask you a question?

15 MR. FILA: Yes.

16 JUDGE LIU: Would you please explain to me the relationship

17 between the Joint Command and the so-called Working Group. Is that

18 Working Group created to co-ordinate the relationship between VJ and MUP?

19 Thank you.

20 MR. FILA: [Interpretation] If you look at the indictment, at the

21 beginning it is claimed that there was a meeting of the

22 Socialist Party of Serbia and that that joint plan was made there. That

23 was what the Prosecution claimed. When the Working Group was established

24 at the proposal of Slobodan Milosevic, Minic as its head and two

25 ministers as its members, the minister of sport and the ministry of

Page 185

1 industry. The goal of the Working Group was to go on a one-day visit and

2 to see what was going on. That was the interest of the leading party, to

3 see what was going on on the ground. In order to see all that, you have

4 to bear in mind the specificities of Yugoslavia. The army was a joint

5 system, whereas the police belonged to just one republic. And in order

6 to see what was going on, the socialist party sent its party delegation

7 to inspect the situation on the ground. And as for the communications in

8 the Joint Command, those were the people who were there, who had to

9 negotiate, who had to be informed, because there was civilian structures

10 there as well, the Red Cross, local bodies of Serb government and various

11 ties with the international community. There was television there, they

12 could watch the news, and they could exchange information. That was an

13 exchange of information, but that has nothing to do with the commission

14 that reported back to Milosevic as to what they had established.

15 Sainovic joined them because the federal state had to send somebody to be

16 kept abreast and Sainovic went there on Bulatovic's order and he also

17 went back there occasionally in 1998.

18 What is important for the Joint Command is that the lines of

19 command in the police and the army were not rendered uncapable and there

20 is no influence on the command. I don't know whether you are satisfied

21 with my answer. So there were lines of command, they were not rendered

22 disabled.

23 JUDGE LIU: Thank you very much. You may proceed.

24 MR. FILA: [Interpretation] What was the role of the

25 Joint Command? There is an example of the request for helicopters which

Page 186

1 was made by Sainovic for the Red Cross. It is the General Staff and the

2 command of the 3rd Army that allows the use of helicopters and this was

3 not approved. If Sainovic was that important, he would have been given

4 the helicopter for the Red Cross. When it comes to the deployment of

5 combat groups, combat groups were deployed exclusively pursuant to the

6 orders of the command of the 3rd Army. At that time, the accused

7 Pavkovic was the commander of the Pristina Corps, the commander of the

8 3rd Army was in Nis, that was General Samardzic, and those two approved

9 all those activities. For example, the implementation of rapid

10 intervention forces. Those forces were never established. There was an

11 exchange of thoughts and opinions, but those forces were never

12 established. The example of the implementation of the third phase of the

13 plan. Irrespective of Pavkovic's attempts, the units of the

14 Pristina Corps were not used if there was no order by the command of the

15 3rd Army and that person was Pavkovic's superior.

16 When it comes to the Perisic -- letter, P717, Perisic speaks

17 exclusively about attempts to influence the use of corps units which was

18 never materialised. The example of orders by the Pristina Corps, the

19 Trial Chamber concluded that the operation was under the control of the

20 command of the Pristina Corps; and that is P1427 and P1428. The

21 Trial Chamber accepted that the chain of command within the

22 Army of Yugoslavia was preserved. The example of orders where approval

23 by the Joint Command is sought, it is accepted by the Trial Chamber that

24 in reality the approvals were issued by the command of the Pristina Corps

25 and not of the Joint Command.

Page 187

1 The Joint Command during the period of 1999. The conclusions of

2 the Joint Command during 1999 are dramatically different from the

3 conclusions about the Joint Command in 1998. The Trial Chamber says the

4 existence of the Joint Command is less visible. The evidence is less

5 detailed, less precise. There are no minutes of any of the meetings.

6 The evidence on Joint Command is superficial. There is no evidence on a

7 clear mandate of the Joint Command in 1999. Orders which bear the title

8 of the Joint Command are actually the orders which were created at the

9 Pristina Corps. Everything that exists is a conclusion by the

10 Trial Chamber based on Vasiljevic, that a meeting that took place on the

11 1st of June, 1999, was similar to the meetings that were held in 1998.

12 The only similarity that does exist is that that meeting was held in

13 Kosovo and that the topic of the meeting was the situation in Kosovo.

14 Everything else is different. The participants were not the same as in

15 1998. There was no continuity. If it served co-ordination, then one

16 meeting was not enough. No minutes were taken. There were no

17 conclusions. There were no civilians. The similarity that was

18 established by the Trial Chamber does not constitute grounds for a

19 reasonable trier of fact to make inferences about facts. Similar is not

20 the same. One similar differs from another similar by definition. The

21 Trial Chamber cannot adhere to the conclusion that something was similar.

22 Either it was a meeting of the Joint Command or it wasn't. If it was

23 only similar, one cannot use similarities to draw conclusions that have

24 far-reaching repercussions on criminal responsibility.

25 You will remember if it walks like a duck, it acts like a duck,

Page 188

1 it's a duck, but it's not always the case.

2 The Trial Chamber says that some of the accused mentioned a

3 Joint Command in 1999, and by mentioning it they evoked the whole system

4 of co-ordination that existed in 1998. Again, no explanation. What does

5 it mean when somebody says "mention"? Does the body exist or does it not

6 exist? And does the body change if the situation exists on the ground or

7 not? The Trial Chamber says that the Pristina Corps used the title

8 "Joint Command" in order to gain authority in its orders or more

9 authority. What does it mean when one says "more authority"? Who needed

10 that? The VJ units are anyway under the command of the Pristina Corps.

11 The Trial Chamber states that the MUP did not receive orders by the

12 Pristina Corps, but just excerpts from the maps. So the logic of the

13 Trial Chamber leads to the conclusion that the Pristina Corps doesn't

14 have authority in its own units and that it can gain it only if it --

15 title is served Joint Command. However, this is a conclusion that a

16 reasonable trier of fact cannot accept. Very important. Mentioning the

17 Joint Command is a very important factor because when it comes to the

18 planning and implementation it evokes the authority that existed in 1998.

19 This is just one in a series of unclear and contradictory conclusions.

20 Did the body exist in the reality or did it exist because it was

21 mentioned? For example, one could say that Sainovic died and only

22 [indiscernible] could exercise authority. Did that -- did the accused

23 play a role in that body? The conclusion of the Trial Chamber that the

24 Joint Command was established in order to allow MUP commanders to save

25 face and not to be under the command of the Army of Yugoslavia before and

Page 189

1 during the state of emergency, this serves a special explanation. This

2 is just an assumption. Why would Milosevic need Pavkovic and the

3 Joint Command when there were decisions of the superior bodies and

4 commands for the use of the Army of Yugoslavia? Why would Milosevic need

5 Pavkovic or Sainovic or Joint Command to co-ordinate with the MUP when

6 there were uninterrupted chains of command in the MUP? And when it comes

7 to President Milutinovic, they were together every day from breakfast to

8 when they went to bed, and Milutinovic was in charge of the police.

9 Why would Milosevic need Pavkovic if Milosevic was a politician

10 who acts without any control, either by the parliament or party, who was

11 described as a politician who could appoint, dismiss, or demote any

12 officer or official anywhere within the state structure? If he could

13 enjoy Milutinovic's support to make a decision on the removal of

14 General Perisic on the 24th of November, 1998, and if he -- and

15 Milutinovic could have prevented that if he did not agree. If he could

16 make a decision on the removal of the commander of the 3rd Army,

17 Dusan Samardzic, on the 25th of December, 1998, if pursuant to the

18 constitution of the Federal Republic of Yugoslavia and the

19 Law on The Army he was authorised and in charge of the personnel policy

20 in the Army of Yugoslavia, then it is absolutely unclear why he would be

21 afraid of those changes, why he would create special bodies. Why did he

22 need Pavkovic in order to bypass officers who did not agree with the use

23 of the Army of Yugoslavia? He could have made changes in line with the

24 constitution in a very simple, legal, and fast way. He could change

25 people, he could remove people if they were not like-minded and if they

Page 190

1 existed and if they represented a problem for the use of the units of the

2 Army of Yugoslavia.

3 That is why the conclusions of the Trial Chamber are not logical,

4 they were not -- they are not grounded on the facts and the Defence deems

5 them as conclusions on the facts that no reasonable trier of fact could

6 arrive at.

7 THE INTERPRETER: Could the counsel please be asked to slow down

8 when reading. Thank you.

9 JUDGE LIU: Well, I believe that is the time for the break and we

10 will have a break for 15 minutes. Then we will resume at 11.00 sharp.

11 Thank you.

12 --- Recess taken at 10.44 a.m.

13 --- On resuming at 11.02 a.m.

14 JUDGE LIU: Yes, Mr. Fila, you may proceed.

15 MR. FILA: [Interpretation] Thank you.

16 When the allegation from the indictment became moot that the

17 Joint Command headed by its commander Sainovic was in command of the

18 military and the police in Kosovo in 1992, what also became moot was the

19 modus operandi --

20 JUDGE LIU: Mr. Fila, I'm sorry to interrupt you. Judge Guney

21 has a question. Judge Guney has a question.

22 JUDGE GUNEY: Thank you, Mr. President.

23 Counsel, before we resume, I have a question in the framework of

24 the Joint Command and Working Group. Is the role given by the

25 Trial Chamber to the Working Group compatible with its conclusion on the

Page 191

1 Joint Command? This is the first half of the question. Because

2 according to Stojanovic, the Trial Chamber found that the Working Group

3 was established to represent the Joint Command or part of it. This

4 finding, is it erroneous as the Working Group for the separate entity

5 with separate authorities? Thank you.

6 MR. FILA: [Interpretation] Your conclusion is absolutely correct.

7 The Working Group which was established by Slobodan Milosevic attended

8 the meeting of the Socialist Party of Serbia and it had a party task

9 because that was the ruling party in our parliament at the time, and it

10 consisted of three top officials of the Socialist Party who were also

11 members of the government, Matkovic and Andjelkovic, as well as the

12 president of the Federal Assembly, Milomir Minic. That Working Group

13 went there to see what was happening in Kosovo, to report back to the

14 party, and that is why the conclusion that the Joint Command is totally

15 different from the Working Group is completely correct. The two are not

16 the same. It was only later when they returned, seven days later, and

17 reported back to Slobodan Milosevic on what they had seen, that they were

18 given a task to go there occasionally and to gather information and

19 report back to the party as to what was going on. In other words, the

20 meetings of the Joint Command were one thing and the Working Group

21 consisting of three people is a different thing. Especially if you look

22 at the notes drafted by the Joint Command, you will see that the three of

23 them were not there together. Nikola Sainovic that I represent was the

24 representative of the federal state; he had nothing whatsoever to do with

25 that Working Group. I don't know whether I have made myself clear. They

Page 192

1 gathered in a place where they had television to watch CNN and the rest

2 and that's where they exchanged experiences. Every one of them did their

3 own thing. The Working Group was sent there to see what was going on and

4 to report back to their own party as to what was going on in Kosovo.

5 Sainovic represented the federal government and negotiated with NATO and

6 the security organisation. Everybody did their own work. It was like a

7 club; however, there was no efficient command because there was no

8 commander. You know what an army is like: If there is no commander,

9 there is no command, no orders are issued.

10 When the allegation from the indictment became moot that the

11 Joint Command headed by its commander, Sainovic, commanded the military

12 and the police in Kosovo in 1999, what also became moot was the

13 modus operandi of the role played by Sainovic according to the

14 Prosecutor. If there was no Joint Command which commanded, then there

15 was no Sainovic. If the Prosecutor's allegation on the Joint Command

16 became moot, what also became moot was the explanation for the

17 participation of Nikola Sainovic in the developments in 1999. There

18 is -- there was no Joint Command, Sainovic was not a commander. What was

19 he? That cannot be replaced by a change and by the introduction of a new

20 term, the political co-ordinator. The person who was accused as the

21 commander of the Joint Command was found guilty as a political

22 co-ordinator. We discussed that, we did not explain the term, no

23 evidence was presented to that effect. The following chapter is the

24 significant contribution to the JCE, 2-1 and 2-2. The Defence does not

25 deny that the Trial Chamber established correctly that when it comes to

Page 193

1 the joint criminal enterprise, that the accused has to be demonstrated to

2 have made a significant contribution to the JCE. However, the Defence in

3 its appeal brief points to a number of reasons why Sainovic's engagement

4 in Kosovo in the course of 1999 could not be seen as significant. The

5 Trial Chamber states that Sainovic is the man whom Milosevic used to

6 orchestrate developments in Kosovo, another new term, and that Sainovic

7 provided his own instructions, all with a view for Serbia to keep control

8 over Kosovo. Who did he give instructions to? What instructions? We

9 never saw that.

10 With all due respect, the Defence concludes that this conclusion

11 reached by the Trial Chamber is unreasonable. This conclusion denies the

12 fact that there was a state, that there were institutions. The

13 Trial Chamber treats Serbia and the Federal Republic of Yugoslavia as

14 Milosevic's private turf, where he has free and unlimited decision power,

15 where he can deploy people and issue orders. Especially impressive is

16 the conclusion of the Trial Chamber which permeates the entire decision.

17 Milosevic's position and role does not have to be proven. Milosevic's

18 position was given in advance and notorious; everybody knew what it was.

19 The Trial Chamber in the case file has some evidence about

20 conversations between the highest-ranking state officials. However, the

21 Trial Chamber treats these conversations as private conversations that

22 the omnipotent Milosevic has with his yes-men. The Trial Chamber treats

23 these conversations as something that was happening outside of the system

24 and that was contrary to the constitution and the laws. In this

25 decision, political conversations are treated as conversations which are

Page 194

1 not taking place in public, and thus they represent conspiracy to commit

2 crime, as if there were a political system in the world where there are

3 no conversations between state officials that take place outside of the

4 Assembly, outside of the government, outside of the public. The work of

5 no Assembly in the world is completely transparent.

6 The Trial Chamber says that Milosevic - and I quote -

7 "orchestrates events." And it wants to represent Milosevic's authority

8 as something that exists outside of the system, as if Milosevic exercised

9 his own will through some of his men beyond and above the constitution.

10 Milosevic's authority is a fact, but that authority stems from the fact

11 that Milosevic was the president of the FRY, that he was the number one

12 man of the Supreme Defence Council of the FRY, and that he was also the

13 leader of the leading political party in the FRY and in Serbia. The way

14 and extent of Milosevic's influence on the position, the role, of

15 Sainovic as a high-ranking state official can be interpreted only in that

16 context which is typical of every state organisation and which does not

17 constitute conspiracy to commit crime.

18 As I already told you, members of the Supreme Defence Council

19 were Milosevic, as the president of Yugoslavia, the president of

20 Montenegro, and the president of Serbia, Mr. Milutinovic, for whom the

21 Trial Chamber established that he was not close to Milosevic. The

22 Trial Chamber bases its conclusion that Sainovic was the person that

23 Milosevic used to orchestrate events in Kosovo, uses to show that

24 Sainovic's role within the context of the implementation of the joint

25 criminal enterprise was significant because the significance is the key.

Page 195

1 The Trial Chamber, however, mystifies the position and role of Sainovic.

2 It qualifies it as a man who Milosevic gave the Kosovo brief as

3 Milosevic's man for Kosovo, as the person who was in charge of operations

4 on the daily basis, and these are all quotes. The Trial Chamber does not

5 try and explain and analyse Sainovic's activities of which evidence can

6 be found in the case file. It does not try to analyse activities for

7 which there is proof that they can be ascribed to Sainovic. It does not

8 analyse where Sainovic was in the course of 1999.

9 The Trial Chamber moves at the level of prejudices and

10 assumptions which, however, is not enough for any reasonable trier of

11 facts which wants to take position on the existence or nonexistence of

12 criminal responsibility. When you look at the evidence. When you do

13 away with empty allegations about the person for Kosovo orchestration and

14 the Kosovo brief, and when all that is reduced to the level of available

15 evidence, Sainovic's role for every reasonable trier of fact imposes

16 itself as the role that is within constitutional and legal authorities

17 that determine Sainovic's position as a government representative in

18 charge of international relations. There are several clearly separate

19 tasks that Sainovic was in charge of with regard to Kosovo. At first, in

20 the summer of 1991 -- 1998, pursuant to a decision of the president of

21 the federal government, Bulatovic, Sainovic was sent to Kosovo as the

22 vice prime minister in charge of foreign affairs. The second phase

23 started after the October Agreement that was signed by Holbrooke and

24 Milosevic. When Sainovic was proposed by the federal ministry of foreign

25 affairs and appointed by the federal government as the president of the

Page 196

1 committee on co-operation with the Kosovo verification commission. The

2 third phase was Sainovic's participation at the Rambouillet conference

3 where Andjelkovic proposed and the government of the Republic of Serbia

4 established a decision on the composition of the delegation and Sainovic

5 is one of its 12 members. And finally, Sainovic participated in the

6 Rugova proceedings and that was entrusted to him by the president of the

7 federal government.

8 Therefore, Sainovic's tasks were not mystified or castration of

9 events in Kosovo. They were rather legitimate activities within the

10 system of the state administration of the FRY and Serbia, were envisaged

11 by the law and by the constitution and all the actors including

12 prime ministers, presidents of parties, presidents of the republics.

13 They participate and they exercise their influence. And on all of that,

14 there is written evidence for Sainovic to be where he was supposed to be

15 and what his tasks were.

16 We have to pay a lot of attention to Sainovic's activities after

17 the 24th of March, 1999. There is not a single shred of evidence

18 testifying to the fact that Sainovic carried out some sort of

19 co-ordination of forces and activities, that he provided instructions or

20 suggestions, that his instructions and suggestions in any way influenced

21 the developments on the ground, the movements and activities of the units

22 there, and especially not in the phase of the implementation of the goal

23 to exercise control over Kosovo, and the last part of the sentence was a

24 quote. All of that is particularly emphasised by the Defence and all of

25 that refers to the period after the 24th of March, 1999, at the time when

Page 197

1 crimes had already happened and that were established by the

2 first-instance judgement.

3 The Trial Chamber has before it proof on the ways the

4 Army of Yugoslavia and the MUP were commanded and controlled. There is

5 no single shred of evidence that in the process of command and control

6 there was influence of anybody beyond those who were envisaged to

7 exercise control in the chain of command, including Sainovic, especially

8 in the period after the departure of the Kosovo Verification Mission and

9 the beginning of the war with NATO and the KLA.

10 The Trial Chamber was not in a position in its arguments to point

11 to a single piece of evidence that would indicate Sainovic's activity and

12 his influence on the events on the ground, especially after the departure

13 of the KVM. To judge Sainovic's contribution to the JCE as significant,

14 evidence is necessary that Sainovic influenced the events and the way

15 this enterprise was implemented and that his significant contribution

16 existed. The Defence at this point wants especially to point out one

17 sentence that we can find in paragraph 467, Volume III, of the judgement

18 which shows the extent of the error committed by the Trial Chamber when

19 it was assessing and making conclusions on Sainovic. The Trial Chamber

20 admits that there is much less evidence of the direct involvement of

21 Sainovic regarding 1999 than 1998, but that some evidence exists. And

22 the Trial Chamber indicates as such evidence his attendance of meetings.

23 We have already discussed his attendance of meetings, four meetings in

24 three months. The Trial Chamber, however, asked for the opinion of this

25 Defence team, and the Trial Chamber - in the view of this Defence - was

Page 198

1 required to analyse the content of these meetings independently and

2 autonomously of the meetings that Sainovic attended in

3 1998 [as interpreted]. What kind of meetings were they? What did

4 Sainovic say at these meetings? Can his words be qualified by any

5 reasonable interpretation as giving orders or orchestration? Did his

6 words have any effect or consequence on the events on the ground? Did,

7 as a consequence of what Sainovic say, a military or a police unit move?

8 Was any action taken? Was a crime perpetrated? There is nothing. There

9 are just four meetings.

10 JUDGE POCAR: May I ask you a clarification, counsel. Are you

11 speaking about the meetings in 1998 or 1999? Because the transcript says

12 "1998," so I don't know what is the position -- or referring to 1999,

13 just to know exactly.

14 MR. FILA: [Interpretation] I'm talking about the meetings in

15 1999. There were four. And the point is --

16 JUDGE POCAR: Okay.

17 MR. FILA: [Interpretation] -- and the point is to prove the

18 difference between the meetings in 1998 and 1999.

19 When you look at the minutes, the transcripts, of these meetings

20 you will see the extent to which Sainovic was present at all and what he

21 said.

22 In the context of Sainovic's significant role in the

23 implementation of the JCE, the Trial Chamber places him in the context of

24 Joint Command in 1999; however, concerning that Joint Command in 1999,

25 that same Trial Chamber states that the evidence is unclear,

Page 199

1 insufficient, that there is no information of its mandate in 1999. At

2 one point the Trial Chamber states that the Joint Command in 1999 in fact

3 evokes its authority from 1998, whatever that means. In the absence of

4 evidence concerning 1999, the Trial Chamber impermissibly uses analogy

5 and projects conclusions concerning 1998 to the period in 1999, that is

6 to say the period when the criminal acts established were committed. In

7 my country, criminal law prohibits the method of analogy, that is the

8 case in Serbia. In civil law and in lawsuits, it is used but not in

9 criminal law.

10 The Trial Chamber has no proof that Sainovic participated in any

11 co-ordination in 1999. The Trial Chamber has no evidence of the

12 existence of the Joint Command in 1999 either. Instead, it depicts the

13 existence of that alleged body through impressions and memories of 1998.

14 The Trial Chamber completely ignores key differences between 1998 and

15 1999, whereas these differences are of decisive importance for any

16 conclusions on this issue. In 1998 in my country there was peace. In

17 1999 there was a state of war in my country. In 1999 my country was at

18 war with NATO. There is a difference between 1998, gentlemen, and 1999;

19 the difference is war, the difference is NATO. It's no small difference.

20 And therefore, there is a considerable impact on the nature of conflict,

21 and that is why in 1999 there are no civilians attending any meetings

22 with members of the VJ and the MUP because in a state of war there can be

23 no civilians involved in any country, including mine.

24 The Trial Chamber commits a grave error of law in establishing

25 facts because it uses analogy as a means to derive evidence by virtue of

Page 200

1 concluding things about a certain time-period based on findings that

2 apply to a completely different time. We, the Defence, believe that by

3 this submission we respond in a slightly broader context to one of the

4 questions posed by the Appeal Chamber on page 3 of the order of

5 20th February, 2013.

6 The actus reus and mens rea of Mr. Sainovic in the events that

7 he's charged with are established exclusively by analogy. All the

8 conclusions about his actions and intent were formed by the Trial Chamber

9 by analysing facts from 1998. Concerning 1998 the Trial Chamber

10 establishes Sainovic's authority and its source. Concerning 1998 the

11 Trial Chamber establishes there were some meetings discussing activities

12 of the army and the police and that some of these meetings were attended

13 by Sainovic. Concerning 1998, the Trial Chamber establishes the

14 existence of the Joint Command and its jurisdiction, while establishing

15 Sainovic's alleged role. All these things are missing in 1999 and this

16 is the period for which Sainovic is charged. We don't know whether the

17 Joint Command existed then or not. There are only memories that are

18 evoked for certain reasons. We don't know where and what Sainovic was

19 co-ordinating. We don't know whether he was giving any sensible or

20 significant orders or instructions because we don't know where he was at

21 all at the time of the indictment. There is only information that in the

22 relevant time he attended four meetings. In my country, the difference

23 between 1998 and 1999 is the state of war and the NATO attack. The

24 Trial Chamber simply has no evidence for 1999, and in a very

25 impermissible way it uses analogy and makes conclusions and concludes

Page 201

1 that if something happened in 1998 it must have happened also in 1999.

2 This is a serious violation of the fundamental principle of

3 dubio pro reo. This is a gross violation of due process against

4 Sainovic.

5 At this point the Defence believes that it is pertinent also to

6 respond to the second part of question from the distinguished

7 Appeals Chamber relating to 1998. This Defence is required to state its

8 position as to whether mens rea in this accused may be established under

9 JCE I, specifically deportation and forced transfer based on the

10 accused's knowledge of crimes committed in 1998, including crimes that

11 are not deportation or forced transfer.

12 The Defence would like first to deal with the facts. In

13 paragraph 920, Volume I, of the trial judgement it is said that with a

14 few exceptions, generally speaking, the evidence led is not of such

15 nature as to be able to prove specific criminal acts committed by

16 individual groups of VJ or MUP forces in 1998. In certain cases there

17 was disproportionate use of force causing grave consequences and certain

18 observers did express their concern. The Trial Chamber analyses

19 Sainovic's knowledge of the said crimes in 1998 in paragraphs from 441 to

20 443, Volume III. The existence of refugees amidst fighting in 1998 is no

21 proof of crimes; it is proof of the seriousness of the conflict that

22 existed in Kosovo at that time. It seems that the Trial Chamber wants to

23 represent the appearance of refugees in 1998 as a harbinger of

24 deportations that allegedly existed in 1998; however, in evidence for

25 1998 there is no trace of that. The appearance of refugees and

Page 202

1 deportation and forcible transfers have no common elements and cannot be

2 compared for the purpose of Sainovic's knowledge of alleged crimes.

3 The Trial Chamber also cites the example of Gornje Obrinje, 899,

4 Volume I. Concerning the events in Obrinje, the General Staff of the

5 Army of Yugoslavia required a report. The command of the Pristina Corps

6 informed the General Staff that they have no information of any massacre

7 in Gornje Obrinje. A Finnish forensic team was supposed to conduct an

8 investigation. That team arrived in Kosovo, but due to problems with

9 access and security it did not finalise its job. The investigating judge

10 of the district court in Pristina carried out an investigation in this

11 case. Milomir Minic also agreed there should be an investigation. He

12 was man number two under the speaker of the parliament. The crimes,

13 however, were not established in a way that could be designated as

14 Sainovic's knowledge of crimes from 1998. The events in 1998 that the

15 Trial Chamber calls crimes do not have any similarity to events in 1999

16 in terms of their basic characteristics, the method of perpetration, the

17 extent, or the circumstances under which they happened. The events from

18 1998 are not and cannot be represented as knowledge or notice for 1998.

19 Also, knowledge of any crimes in 1998 cannot be used as proof of

20 foreseeability of crimes in 1999 because the alleged crimes are different

21 in all the fundamental elements that characterised them. The standard

22 for the existence of criminal acts of deportation and forcible transfer

23 is that the forcible transfer is from areas where the displaced persons

24 were lawfully residing. In paragraph 919, the Trial Chamber establishes

25 that a significant number of persons was displaced, but establishes two

Page 203

1 different groups of reasons: The fighting between FRY and Serbia forces

2 against the KLA and the disproportionate use of force in certain areas.

3 The Trial Chamber speaks nowhere of forcible transfer.

4 Finally, concerning the act of deportation, there is absolutely

5 no evidence of displacement or transfer across the state border, and at

6 the end of the day all the persons who left their homes in 1998 did

7 return with the help of state organs of Serbia and FRY. In many cases

8 the state helped them to restore their damaged houses and lends

9 assistance in many other ways. There is also evidence of that in the

10 case file.

11 Finding intent for any crime in 1998 is simply impossible,

12 especially in the case of Sainovic. The events from 1998 are

13 fundamentally different from events in 1998 in all of their important

14 elements, which makes any conclusion on the intent of Sainovic in this

15 way impossible.

16 Sainovic's intent. At this point, the Defence wishes to point

17 out especially significant arguments relating to Sainovic's intent to

18 commit the criminal acts with which he is charged. In paragraph 466,

19 Volume III, of the trial judgement, the Trial Chamber found that Sainovic

20 had the intent to forcibly displace part of the Albanian population in

21 Kosovo, and thus affect the ethnic balance in order to ensure permanent

22 control of Serbia and FR Yugoslavia over Kosovo. The Trial Chamber uses

23 five sources in paragraphs 428 to 438, discussing Sainovic's mens rea,

24 these are witnesses Naumann, Phillips, Byrnes, Loncar, and Petritsch.

25 These are persons who at the time relevant for the indictment were in

Page 204

1 contact with Sainovic, that is, before the conflict occurred.

2 The Trial Chamber analyses Naumann but concludes that his

3 testimony cannot be used as proof of Sainovic's attitude towards the

4 Albanian population in Kosovo. Byrnes was the head of the US diplomatic

5 observer mission in Kosovo. Byrnes states that Sainovic believed the

6 problems in Kosovo should be resolved by political means, that continued

7 work should be done to find a mutually acceptable solution. He also

8 testifies that Sainovic worked to find such a solution, that he was

9 always co-operative, and that he even tried to negotiate with the KLA in

10 order to find that solution. Byrnes who participated in both the

11 negotiations at -- in Rambouillet and other discussions testified that he

12 trusted Sainovic.

13 Petritsch is also cited in that part of the

14 indictment [as interpreted] dealing with Sainovic's intent. This witness

15 states that Sainovic was the most constructive in seeking a solution for

16 the overall situation. Loncar, too, testified that Sainovic advocated

17 forming a multi-ethnic police in Kosovo which is an obvious proof that

18 Sainovic saw that a solution for Kosovo was possible only through

19 agreement and compromise. Petritsch testified that in Rambouillet

20 Milutinovic was the most vociferous criticiser, that he had a very

21 negative influence on the negotiations; however, this means nothing for

22 the Trial Chamber. The Trial Chamber ignores all the reasons indicated

23 by persons who were in direct contact with Sainovic and decides to

24 accept, instead, the testimony of Phillips. Acting in this way, the

25 Trial Chamber takes the road that not a single reasonable trier of fact

Page 205

1 would take. Byrnes, Loncar, and Petritsch alike were Prosecution

2 witnesses. Byrnes and Petritsch are diplomats, high-ranking diplomats in

3 their countries. Both of them were extremely conversant with the

4 situation in Serbia and they dealt with it for a long time. Their

5 perception, along with Loncar's and other evidence, do not leave any room

6 for the conclusion made by the Chamber. Byrnes and Petritsch are people

7 who spent a lot of time with Sainovic. Their testimony cannot be

8 compared in terms of weight with the testimony of people who saw Sainovic

9 once or never. The Trial Chamber does not explain at all why it does not

10 accept Byrnes and why it ignores Petritsch and Loncar.

11 The Trial Chamber accepts the testimony of Phillips. However,

12 even with regard to Phillips the Trial Chamber does something that not a

13 single reasonable trier of fact would do. It ignores the entire evidence

14 given by Phillips and bases its far-reaching conclusion of Sainovic's

15 intent on one single sentence uttered by Phillips which is taken out of

16 all context and is refuted by the entirety of his testimony. The

17 Trial Chamber accepts Phillips' statement that Albanians do not belong in

18 Kosovo and that Kosovo is a cradle of Serbian civilisation and that

19 Albanians do not want to co-exist with Serbs. The Defence emphasises

20 that Phillips uttered this sentence in a way that is unclear after

21 several repetitions of the same question by the Prosecutor, where the

22 Prosecutor even interrupted the witness and rephrased the question until

23 he finally got the answer he expected.

24 What did Phillips testify to? He testified that Sainovic was

25 sincere when he talked about the co-existence of Serbs and Albanians,

Page 206

1 that at the meeting on 24 November 1998 Sainovic said that the majority

2 in Kosovo believes it is possible to find a political solution, and he

3 himself was hoping for such a solution, that Sainovic at a meeting with

4 Walker on 8 December 1998 put forward his proposals sincerely in good

5 faith in the desire to resolve problems, that at a meeting with Walker on

6 14 January 1999 he said he was satisfied with the joint work and that the

7 KLA and the VJ have to look for a political solution, that work should be

8 done on the main element of a mutual agreement. Phillips testified this

9 but he also noted that in his official notebooks that weren't

10 contemporaneous and that were subject to special protection measures in

11 this case. Phillips further testified that Sainovic was in favour of the

12 co-existence of Serbs and Albanians in Kosovo, that he was in favour of a

13 political solution, that Sainovic was hoping that solution was possible,

14 that work should continue on reaching an agreement. The Trial Chamber

15 accepts, however, only one sentence from Witness Phillips, although at

16 least four other situations show a completely different position of

17 Sainovic. If Sainovic was in favour of the co-existence of Serbs and

18 Albanians, if he was in favour of a mutually acceptable solution at

19 negotiations, if he was sincere in his desire to negotiate a solution,

20 that it is -- then it is impossible to accept only one sentence out of

21 the whole testimony, which is on top of everything unclear in form and

22 unclear in context.

23 We should recall, once again, the testimony on Sainovic's role in

24 Rambouillet, where he once again expressed his desire to have problems

25 resolved peaceably. The Defence concludes that not a single reasonable

Page 207

1 trier of fact would make the conclusion on Sainovic's intent in the way

2 that the Trial Chamber did in this case, ignoring all the witnesses who

3 have direct knowledge, ignoring written evidence that is contemporaneous,

4 ignoring the essence of Phillips' testimony before the Trial Chamber and

5 the decision underlying the conviction of Nikola Sainovic which is based

6 on a single sentence, which is to say the least contradictory to the rest

7 of the testimony of the same witness.

8 Now we will address the Appeals Chamber's question concerning the

9 making of the indictment against Sainovic public. In its order --

10 JUDGE LIU: Mr. Fila, please slow down.

11 MR. FILA: [Interpretation] I seem to be afraid not to have enough

12 time to finish.

13 JUDGE LIU: Well, I understand that my opening statement took

14 about eight minutes of your time and you'll have another extra eight

15 minutes. Thank you.

16 MR. FILA: [Interpretation] Thank you very much.

17 In its order of 20th February 2013, the Appeals Chamber asks the

18 Defence to state its position on the importance of the fact that the

19 indictment against Sainovic was made public on 27 May 1999, whereas the

20 last crime for which Sainovic was convicted happened two days earlier, on

21 25th May 1999.

22 First of all, the Defence would like to note that the general

23 accessibility of information cannot support a presumption on Sainovic's

24 actual knowledge and awareness. It is only on true knowledge and

25 awareness can one find criminal responsibility. Therefore, accessibility

Page 208

1 via media cannot be taken as a conclusion on Sainovic's actual awareness

2 of the fact that an indictment was issued against him in the absence of

3 specific evidence about his knowledge, and there is no such knowledge in

4 this case. Also, as noted by the Appeals Chamber as well, the indictment

5 was issued after the crimes for which Sainovic was charged were -- had

6 occurred.

7 Possible knowledge or awareness of the indictment could be of

8 significance only in the context of the possible punishment of

9 perpetrators; however, in the case file there is not a single shred of

10 evidence that would show Sainovic's authority or ability to punish anyone

11 or to discipline anyone. The question of the Trial Chamber has to do

12 with the mens rea standard in relation to the third category of joint

13 criminal enterprise.

14 In relation to the question of the Trial Chamber, how the Defence

15 of Sainovic would be affected in terms of the fourth and fifth grounds of

16 appeal by a possible acceptance of the appeal of the Prosecutor in

17 relation to correcting the mens rea standard in terms of the third

18 category of JCE, the Defence wishes to highlight the following: First of

19 all, the Trial Chamber bases its position on the necessary standard on

20 the ruling of the Appeals Chamber in the Brdjanin case and the Defence

21 presented its response in paragraphs 49 through 56. However, if this

22 Trial Chamber were to find that the standard of probable should be

23 replaced by the standard of possible, the Defence wishes to recall the

24 position of the Appeals Chamber in the Karadzic case concerning the third

25 category of joint criminal enterprise of the 25th of June, 2009, where it

Page 209

1 says that the standard of probability cannot apply to situations when the

2 accused is considerably far away from what is happening and that mens rea

3 in terms of the third category of joint criminal enterprise requires that

4 there -- that there is a sufficiently substantial ability to have a crime

5 committed so that it could have been foreseen by the accused person. The

6 Defence, however, would wish to highlight that irrespective of legal

7 standard the conclusion would be the same in relation to Sainovic's

8 responsibility for the crimes of murder and damage to military --

9 THE INTERPRETER: Interpreter's correction: Places of worship.

10 MR. FILA: [Interpretation] Foreseeable. There is detailed

11 reference in paragraphs 397 to 412 of the indictment.

12 Finally, the incident in Tusilje. It is not contained in the

13 indictment and it is contained in the judgement. Although this incident

14 is not part of the appeal of the Sainovic's Defence, the Defence believes

15 that the Appeals Chamber should certainly acquit Sainovic of any

16 responsibility in view of what happened in Tusilje.

17 And, finally, the decision on sentencing. The Defence is

18 convinced that the arguments that are presented in the appeal

19 convincingly demonstrate that the only just decision in the Sainovic case

20 would be a judgement of acquittal. However, if this honourable

21 Appeals Chamber would not accept the positions of the Defence, the

22 Defence would like to indicate that the Trial Chamber in terms of

23 sentencing made mistakes, and therefore the sentence is totally

24 inadequate. If Sainovic conveyed some information or some instruction,

25 the number of such cases is very small.

Page 210

1 The Chamber was only able to identify very few such situations.

2 In most events, in a vast number of the activities of the VJ and the MUP,

3 Sainovic's information or instruction constitutes an insignificant part

4 in the hundreds and thousands of orders, reports that were exchanged

5 between the commanders of the VJ, the MUP, and the structures that were

6 superior to them. If there is a role that was played by Sainovic, if

7 there is a contribution rendered by Sainovic, if there is his authority,

8 then his contribution is very small and his authority was seldom used, if

9 ever. If there are four meetings, if there are four ambiguous or unclear

10 instructions that were allegedly conveyed by Sainovic and if at the same

11 time there is a war and a state of war, if there are commands, staffs,

12 communications equipment, orders, reports, and uninterrupted chain of

13 command in the military and the police, if there are organs of civilian

14 government, then Sainovic's role - if any - is minimal and the sentence

15 is excessive.

16 So if this Appeals Chamber were to find that Sainovic is

17 responsible, then certainly the sentence should be much less strict than

18 the one that was pronounced by the Trial Chamber, 22 years in prison for

19 four episodes at the time relevant to the indictment, four episodes of

20 marginal importance, and that is a sentence that no reasonable trier of

21 fact could agree to.

22 Taking into account all these arguments, the Defence appeals to

23 the Appeals Chamber to take into account all arguments, assess the facts

24 and the legal aspects of the appeal, and to view all the mistakes that

25 were made by the Trial Chamber and to reach a lawful and just judgement.

Page 211

1 In the view of this Defence, it can only be a judgement of acquittal of

2 Nikola Sainovic.

3 In the time that remains, I would like to say something. This is

4 a year in which the Tribunal is commemorating 20 years of its existence.

5 Many persons since then have left, we should remember them, we should

6 remember their contribution. I would particularly like to note

7 Professor Antonio Cassese, who unfortunately is no longer with us. Many

8 persons gave their contribution here and I believe that we should

9 remember all of them.

10 In that spirit, I wish to paraphrase the words of

11 Nelson Mandela, the greatest living fighter for human rights, who said

12 that each and every one of us leaves traces of what they did, they

13 continue in time, and without any error they show the path that we had

14 taken, whether we took the path of truth and justice or the other path.

15 We each choose our own path. I ask the distinguished Appeals Chamber to

16 agree to the road of justice and to acquit my client, Nikola Sainovic.

17 Today negotiations between the state of Serbia and the

18 Kosovo Albanians start and the Serbian delegation includes the president,

19 the prime minister, and the deputy prime minister, and this is of

20 decisive importance for all of the events involved. If all of that were

21 true, if others had been accused in Serbia, not only the president and

22 the three chiefs of General Staff, then we would not have had the

23 situation that we have now. However, many things remained unpunished.

24 The bombing of the Chinese embassy, then also the exodus of Serbian

25 refugees from Kosovo. Had people been found guilty for that, today we

Page 212

1 would have said that the third objective of this Tribunal would have been

2 achieved, that is to say to reach reconciliation among the peoples of the

3 region. Had that happened, we could say proudly today we have achieved

4 that third objective as well. Thank you for your attention.

5 JUDGE LIU: Thank you very much, Mr. Fila. I believe that you

6 are far ahead of your time allocated to you.

7 Well, could we hear the submissions from the Prosecution.

8 MR. KREMER: Thank you, Mr. President. I will respond to

9 Mr. Sainovic's challenges to the joint criminal enterprise and its

10 operation, including the system for co-ordinating the activities of the

11 VJ and MUP, which included the Joint Command. Given the interconnected

12 nature of many of the issues that will be discussed over the course of

13 the week, my response submissions will also try to provide context to the

14 findings as they relate to Mr. Pavkovic and Lukic as members of the

15 joint criminal enterprise and, in part, Mr. Lazarevic.

16 My colleagues, Ms. Martin Salgado and Ms. Monchy, will answer the

17 questions that relate to Mr. Sainovic as set out in Your Honour's order

18 of 31 January 2013 and respond to the issues relating to actus reus and

19 mens rea respectively.

20 Your Honour, Mr. Sainovic brings few allegations of legal error,

21 and as is evident from his brief and his remarks today, the vast majority

22 of his challenges are alleged factual errors. In his arguments, he

23 repeatedly criticises the Trial Chamber's decision-making by citing to

24 other evidence in the record and suggesting other conclusions should have

25 been drawn. As our response brief sets out in detail, a large number of

Page 213

1 his submissions meet the grounds for summary dismissal and the same holds

2 true for the submissions of the other appellants. We do not consider it

3 would be of assistance to Your Honours for us to address such arguments

4 in oral submission this week, and if we have not responded specifically,

5 we rely on our briefs that we have filed.

6 Your Honours, Mr. Sainovic and the other appellants' written

7 submissions fundamentally fail to accept that this is an appellate

8 proceeding, that this is not a de novo review hearing, that this is not a

9 forum to re-argue positions advanced at trial. In order to unseat the

10 Trial Chamber's factual conclusions, based on the assessment of the

11 evidence, the appellants must demonstrate that the conclusions were ones

12 that no reasonable Trial Chamber could have reached when assessing the

13 totality of the evidence and that those findings occasioned a miscarriage

14 of justice. This they fail to do.

15 And Mr. Fila in his submissions constantly spoke of one little

16 piece of evidence offered, an argument that he advanced at trial, pointed

17 to other pieces of evidence, and said that the Trial Chamber got the

18 factual assessment wrong, but throughout his submission he has ignored

19 the fundamental facts that the Trial Chamber used in framing its

20 assessment of the evidence, and that is the pattern of crimes starting on

21 March 24th 1999 and continuing for a two-month period, during which time

22 700.000-plus Kosovo Albanians were displaced. It's in that context that

23 the analysis takes place, not in isolation as to what happened at a

24 meeting and what Mr. Sainovic did or said at a meeting. All of the

25 events that led to the crimes and the proper inferences and conclusions

Page 214

1 to be drawn from those events in regard to the individual criminal

2 responsibility of each of the appellants today.

3 The Trial Chamber didn't conclude without having set out in its

4 judgement how it went about its business of trying this very complex and

5 lengthy trial. The Trial Chamber set out over 11 pages in Volume I,

6 pages 17 to 27, exactly how it approached the assessment of the evidence

7 and applied that approach consistently throughout the judgement.

8 The Trial Chamber had the advantage of seeing and hearing the

9 witnesses testify in court, had the advantage of assessing their

10 demeanour, and had the advantage of forming an impression as to their

11 credibility. And Mr. Fila argues that that should all be rejected. But

12 because another witness said something else, the Trial Chamber's

13 conclusion, in light of the totality of the evidence, should simply be

14 ignored and another finding replace it and the finding beyond a

15 reasonable doubt disturbed.

16 The Trial Chamber carefully sifted and weighed the evidence and

17 gave reasons for its treatment of controversial evidence. Where there

18 was doubt, the Trial Chamber gave that doubt or the benefit of the doubt

19 to the accused. Where the Trial Chamber rejected evidence or assertions

20 made by the parties, it gave reasons. The Trial Chamber's findings, we

21 would submit, are entitled to a significant margin of deference.

22 Throughout the trial judgement's over 1300 pages in three main

23 volumes, its factual findings are supported by detailed references to

24 evidence on the record. Where it based conclusions on circumstantial

25 evidence, it did so mindful that the conclusion must be the only

Page 215

1 reasonable conclusion on the totality of the evidence.

2 At Volume I, paragraph 39, the Trial Chamber specifically

3 referred to the Delalic appeal judgement, paragraph 458, which defined a

4 circumstantial case:

5 "A circumstantial case consists of evidence of a number of

6 different circumstances which, taken in combination, point to the guilt

7 of the accused person because they would usually exist in combination

8 only because the accused did what is alleged against him ..."

9 The Defence submission today suggests that you look at individual

10 pieces of evidence, not all of it in combination. And what is

11 significant to the analysis of this judgement is that the Trial Chamber

12 correctly understood that when evaluating a circumstantial case it is the

13 conclusion pointing to guilt which must be the only reasonable inference.

14 It is not necessary, nor correct, to assess whether each individual

15 strand of evidence can lead only to a finding of guilt beyond a

16 reasonable doubt. What is required is to consider all of the relevant

17 findings based on the totality of relevant evidence before applying the

18 beyond reasonable doubt standard to the essential elements required for

19 conviction.

20 Mr. Sainovic's submissions ask the Appeals Chamber to read the

21 trial judgement piecemeal. However, the intricate links between the

22 sections and the volumes of the judgement cannot be understood properly

23 this way. A complete understanding comes only from a holistic reading of

24 the entire judgement.

25 Let me illustrate using the Trial Chamber's

Page 216

1 joint criminal enterprise findings. The core findings relating to the

2 overall pattern of crimes found in Volume II, paragraphs 1150 to 1178,

3 are referred to at Volume III, paragraph 46, and are integral to the

4 conclusions about the crimes occurring according to a common purpose and

5 thus to the existence of a joint criminal enterprise.

6 The Trial Chamber focused primarily on the scale and pattern of

7 displacement crimes in 1999, discussed throughout Volume II, to find a

8 joint criminal enterprise was in existence at the time those crimes were

9 committed. The Trial Chamber said so at Volume III, paragraph 17:

10 "In the Chamber's view, the most compelling evidence of a common

11 plan, design, or purpose is that which pertains to the pattern of crimes

12 in 1999."

13 In its findings at Volume III, paragraphs 89 to 96, having

14 assessed all of the relevant evidence, not limited to the pattern of

15 crimes but including a number of other factors, the Trial Chamber

16 concluded the existence of a joint criminal enterprise was proven beyond

17 a reasonable doubt. And in doing so, we submit, it was entitled to

18 support its conclusions with evidence of events prior to the commission

19 of crimes and the evidence of the concealment of over 700 bodies after.

20 Your Honours, I will outline for you the -- in greater detail in

21 a moment the -- why the Trial Chamber reasonably took into account the

22 systematic pattern of crimes that took place at the hands of the VJ and

23 MUP forces under the cover of the NATO bombing, demonstrate how this and

24 numerous other factors supported the existence of a

25 joint criminal enterprise.

Page 217

1 The Trial Chamber in its judgement determined, having regard to

2 all of the evidence, that a co-ordinating mechanism between the MUP and

3 VJ forces and Belgrade was integral to the commission of these crimes.

4 The Joint Command, under the leadership of Sainovic and with the

5 membership of Pavkovic and Lukic, was a crucial part of this

6 co-ordinating mechanism.

7 As Judge Liu noted at the beginning of this hearing, the

8 Appeals Chamber's task is to examine errors of fact and law and is not to

9 review every aspect of the Trial Chamber's reasoning and determine

10 whether it agrees. We urge the Appeals Chamber in this case to

11 rigorously apply the standard of review as an Appeals Chamber, to leave

12 the evaluation and assessment of evidence to the Trial Chamber, it was

13 its job, and point out that the Trial Judges in this case evaluated and

14 assessed the evidence well, diligently, and cautiously and reasonably.

15 And when you apply the standard of review properly and consistent with

16 long-standing Appeals Chamber practice, we submit that your conclusion

17 will be that the Trial Chamber's conclusion is reasoned and reasonable.

18 Mr. Sainovic argues today and in his brief that the Trial Chamber

19 erred in finding that a joint criminal enterprise existed and that he was

20 a member of it.

21 First, membership of the joint criminal enterprise. The

22 Trial Chamber found that the JCE members held the highest political,

23 military, and police leadership positions within the FRY and Serbia. And

24 for our purposes its members included Milosevic, the FRY president and

25 supreme commander of the VJ; Sainovic, the FRY Deputy Prime Minister

Page 218

1 responsible for FRY foreign policy and international relations and

2 political co-ordinator of the VJ and MUP in Kosovo; Pavkovic, the

3 commander of the 3rd Army; and Lukic, the head of the MUP staff for

4 Kosovo.

5 As noted in Volume III, paragraphs 91 and 92, the JCE members

6 treated the entire Kosovo Albanian population as enemies of the FRY and

7 Serbia. Instead of solving the political problem in Kosovo through

8 democratic means and addressing crimes by the KLA through the effective

9 use of police and judicial resources, the JCE members committed

10 widespread and systematic crimes against the Kosovo Albanian population

11 in 1999.

12 Slobodan Milosevic played a pivotal role in this joint criminal

13 enterprise. His role and influence in the JCE provides relevant context

14 given that Sainovic, as Milosevic's man in Kosovo, was the conduit for

15 Milosevic's influence in Kosovo. And there are a series of findings

16 confirming Milosevic's role. Milosevic wielded significant power during

17 the indictment period, Volume I, paragraphs 291 and 467. Also, as found

18 by the Trial Chamber at Volume I, paragraphs 284, 467, 485, and

19 Volume III, 468, he was at the apex of the executive chain of command of

20 the VJ throughout the conflict and had significant de facto powers over

21 the MUP.

22 The Chamber found at Volume I, paragraphs 1109 and 1111, that it

23 was through Milosevic's de facto authority that the Joint Command for

24 Kosovo was created to ensure greater co-ordination between MUP and VJ

25 forces and to enable him to direct the actions of the MUP. Milosevic

Page 219

1 orchestrated the events in Kosovo through all of the accused and

2 particularly Sainovic.

3 For example, he issued orders to the MUP personnel in Kosovo,

4 often through Sainovic as noted in Volume III, 274. Through Sainovic,

5 Milosevic gave approval for the activities of the VJ and the MUP in

6 Kosovo and issued his instructions accordingly. You will find that at

7 Volume III, paragraph 331.

8 And Milosevic also promoted Pavkovic and Ojdanic towards the end

9 of 1998 to facilitate implementation of the common purpose as noted in

10 Volume III, paragraph 85.

11 The Trial Chamber found that all of the JCE members, including

12 Sainovic, shared Milosevic's sentiments about Kosovo. It was through his

13 relationship with Milosevic that Sainovic developed the influence and

14 authority he needed to co-ordinate the activities in Kosovo. You will

15 find these findings at Volume III, paragraphs 427, 462, 466, and 467.

16 Your Honours, before addressing the challenges to the findings

17 and evidence supporting the existence of the JCE, I will briefly discuss

18 the formation of the common purpose of the joint criminal enterprise. In

19 examining whether there was a common purpose, as I have indicated

20 earlier, the Trial Chamber considered the pattern of crimes, the

21 concealment of bodies, and a number of other factors which preceded the

22 crimes in some cases by many months. The Trial Chamber's findings on

23 these other matters confirmed that it accepted that the common purpose

24 had crystallised no later than October 1998 as pled in paragraph 20 of

25 the indictment.

Page 220

1 First, at Volume III, paragraphs 68 and 72, the Chamber found

2 that the disarming of Kosovo Albanians and the arming of non-Albanians

3 was "designed to render the Kosovo Albanian population vulnerable to the

4 forces of the FRY and Serbia, while at the same time empowering the

5 non-Albanian population."

6 It is express in this finding that the efforts to arm and disarm

7 which continued through October 1998 formed part of the common plan.

8 At Volume III, paragraph 85, the Trial Chamber confirmed that the

9 common plan continued to exist at the end of 1998. The Trial Chamber

10 reasoned that Ojdanic's promotion on 24 November 1998 and Pavkovic's

11 promotion on 28 December 1998 were done "intentionally ... by Milosevic,

12 a member of the joint criminal enterprise, in order to facilitate the

13 implementation of the common purpose."

14 In Volume III, paragraph 778, the Trial Chamber added that

15 Pavkovic's promotion was a reward "for his participation in the joint

16 criminal enterprise."

17 In this way, the Trial Chamber confirmed that the common purpose

18 had been in existence well before December 1998.

19 At Volume III, paragraphs 76 and 92, the Chamber confirmed that

20 the common purpose was evident during the Rambouillet and Paris

21 negotiations in February of 1999. FRY and Serbian forces "made use of

22 the period of negotiations" to delay an international military presence

23 in Kosovo and bring in additional forces in breach of the

24 October Agreements in order for to be in position to mount the widespread

25 attack in the spring. The Chamber noted that "these dynamic and

Page 221

1 intertwined processes are indicative of a common purpose."

2 And finally, at Volume III, paragraph 92, the Chamber drew upon

3 its earlier findings and concluded that the NATO bombing provided the JCE

4 members with the "opportunity" to undertake the displacement campaign.

5 It added that this was an opportunity for which the JCE members "had been

6 waiting and for which they had prepared by moving additional forces into

7 Kosovo and by the arming and disarming process."

8 Although the Trial Chamber found at Volume III, paragraph 96,

9 that the common purpose was at least in existence at the time of the

10 indictment crimes starting on 24 March 1999, it in no way limited the

11 existence of the common purpose to this period. Indeed, as its other

12 findings demonstrate, the Trial Chamber clearly considered the common

13 purpose to be in existence earlier and our submission is no later than

14 October 1998.

15 The conclusion that the common plan had crystallised well before

16 the indictment crimes is consistent with the Trial Chamber's findings

17 that the widespread and organised expulsions throughout Kosovo required

18 the -- I'm sorry. That the indictment crimes is consistent with the

19 Chamber's findings that the widespread and organised expulsions

20 throughout Kosovo, the implementation of the common plan, required

21 significant planning and co-ordination, and I refer you to Volume II,

22 paragraphs 48 and 888.

23 Now, turning to the Chamber's findings regarding the existence of

24 a joint criminal enterprise. The Trial Chamber carefully considered a

25 large and solid body of relevant evidence including the acts and conduct

Page 222

1 of the accused to find the existence of a joint criminal enterprise. As

2 the Trial Chamber noted at Volume III, paragraph 17, the "most compelling

3 evidence" of the existence of the common criminal purpose was the

4 discernible pattern of numerous crimes in 1999, including the forcible

5 displacement of the Kosovo Albanian population which was evident as early

6 as 24 March.

7 The crimes were highly co-ordinated, systematic, and

8 premeditated. They were of such a nature, scale, and cruelty as to

9 establish the foundation for the Chamber's findings of a joint criminal

10 enterprise among the political, military, and police leadership in the

11 FRY Serbia to forcibly displace the Kosovo Albanian population. And I

12 refer you again to Volume III, paragraph 95.

13 The implementation of this pattern of crimes across Kosovo in

14 such a short time, some two months, required a high level of co-operation

15 and co-ordination between the MUP, the VJ, and the highest political

16 levels. And I refer you to Volume I, paragraphs 1023, 1041, 1054, 1123,

17 and 1151; Volume II, paragraphs 48, 253, 888; and Volume III,

18 paragraph 468, 819, and 1132.

19 The implementation of the pattern of crimes was accomplished

20 through a system of co-ordination carried out by the three JCE members

21 who are appellants in these proceedings, Mr. Sainovic, General Pavkovic,

22 and General Lukic, in particular through the Joint Command, a mechanism

23 in which the Chamber found Sainovic played a central role and I will

24 discuss that later. First, the crimes in brief.

25 In the first three days of the campaign, the joint forces

Page 223

1 attacked virtually every major town in Kosovo, including Pristina,

2 Prizren, Djakovica, Kosovska Mitrovica, and Pec.

3 The VJ and MUP forces also systematically attacked smaller

4 surrounding towns and villages in Kosovo. The Chamber found that over 27

5 towns and villages throughout Kosovo within -- and within the 13

6 representative municipalities charged in the indictment were attacked and

7 had their Albanian population displaced. This is reflected in Volume II,

8 paragraphs 1181 to 1262.

9 It is noted at Volume II, paragraph 1150, as a result of these

10 co-ordinated efforts, over 300.000 Kosovo Albanians were expelled by the

11 end of the campaign's first week. By the end of the second week,

12 April 5th, that number doubled to 613.530. And by 30 April, 715.158

13 Kosovo Albanians had been expelled. To put these numbers in context, in

14 a little over two months, approximately half of the Kosovo Albanian

15 population was expelled and forced into Albania, Macedonia, and

16 Montenegro.

17 Moving now to the pattern of crimes. The Chamber found that the

18 VJ and the MUP units acted with a high degree of co-ordination in

19 expelling the Kosovo Albanian population, Volume I, paragraphs 1033 to

20 1043.

21 Months in advance of the attacks, FRY and Serbian forces began to

22 make preparations which laid the groundwork for the mass expulsions.

23 For instance, in 1998 and early 1999, non-Albanians in Pristina

24 were secretly armed by the VJ and the MUP. Simultaneously, the VJ and

25 the MUP forces disarmed Kosovo Albanians in the town; that's found in

Page 224

1 Volume III, paragraphs 52, 54, 62, and 72.

2 In the weeks preceding the NATO attacks, MUP, VJ, and Serb

3 paramilitary forces were reinforced in and around Pristina despite the

4 absence of significant KLA presence in the area, Volume II ,

5 paragraphs 808, 811 to 813.

6 With this preparatory work in place, on 24 March 1999 and under

7 the cover of the NATO campaign, VJ and MUP forces launched a co-ordinated

8 wave of violence and terror throughout Kosovo intended to expel the

9 Albanian population, found in Volume III, paragraphs 41 and 46.

10 In some cases, such as the villages and towns of Pec, Pristina,

11 Vladovo, and Sojevo, the joint forces would go door to door, forcibly

12 expelling Albanians from their homes, Volume II, paragraph 48 for Pec;

13 paragraph 885 for Pristina; 1247 for Zegra and Vladovo; 1250 for Sojevo,

14 just as examples.

15 In other cases, such as in Celina, Staro Selo, and Dubrava, the

16 joint forces deliberately created a climate of fear intended to drive out

17 the Albanians, Volume II, paragraph 311 for Celina; 885 for -- I'm sorry,

18 1251 for Staro Selo and 1247 for Vladovo.

19 The VJ forces would often first surround the town or village and

20 begin shelling the area. The VJ and MUP forces then, individually or

21 together, would enter the town, terrorise the villagers through murder,

22 threats of death, looting, the burning of homes or the brandishing of

23 weapons, Volume II, paragraph 1060 to 1061 and -- I'm sorry, 1160 to 1161

24 and 1164.

25 Kosovo Albanian residents often received an ultimatum, either to

Page 225

1 abandon their homes or to be killed. Your Honours can see that at

2 Volume II, paragraphs 230, 718, and 839 in relation to the crimes

3 committed in Reka/Caragoj Valley, Suva Reka, Zabare, and Pristina.

4 As a result of these co-ordinated attacks by the VJ and the MUP,

5 Kosovo Albanians were forced from their homes, funneled into massive

6 convoys, and forced to the borders of Albania, Montenegro, and Macedonia.

7 In some instances, Kosovo Albanian houses were occupied by Serbs. For

8 instance, as noted in Volume II, paragraphs 831 to 832, in Pristina, many

9 of the houses belonging to Kosovo Albanians were then occupied by the VJ

10 and the MUP themselves and used to house official organs of the FRY and

11 Serbian government.

12 VJ and MUP forces often controlled the convoys by blocking roads

13 and passages and ensuring that the Kosovo Albanians were directed to the

14 border and could not take refuge in Kosovo. The convoys of

15 Kosovo Albanians were sometimes led at gunpoint. Other times the VJ/MUP

16 forces would direct the convoys to transportation depots where trains,

17 buses, and trucks were assembled. I refer you to Volume II,

18 paragraph 334 for Celine and 1167 for Pristina. The Kosovo Albanians

19 were forced onto trains or vehicles which were severely overcrowded and

20 transported to the different border crossings. Groups of refugees formed

21 at these transportation depots until the Kosovo Albanians were expelled.

22 As the convoys proceeded to the borders, the Kosovo Albanians

23 continued to be subjected to further abuse and threats. Convoys

24 departing from Pristina, for example, were subject to VJ and MUP insults.

25 The VJ and MUP would curse and shout, "Kosovo does not belong to you

Page 226

1 Albanians, it belongs to Serbs," "we're going to kill you Albanians."

2 You can find that at Volume II, paragraph 859.

3 At the different border points and before expelling the Kosovo

4 Albanians, MUP and VJ forces seized and destroyed their identification

5 documents, including passports, driver's licences, in order to make their

6 return to Kosovo difficult, if not impossible. You find that at

7 Volume III, paragraph 32. According to the Trial Chamber, the

8 confiscation and destruction of identification documents was amongst the

9 strongest indicators demonstrating the existence of the common criminal

10 purpose, Volume III, paragraph 40. The confiscation was a common

11 practice, according to the Trial Chamber, and I have too many references

12 on that point to give you at this point.

13 The Trial Chamber took into account evidence of declarations made

14 by FRY/Serbian forces that Kosovo Albanians would not come back to Kosovo

15 when confiscating these documents.

16 Pavkovic himself acknowledged this practice by MUP members, which

17 is found at Volume III, paragraphs 720 and 775. Former VJ officers also

18 testified as to the existence of orders to confiscate ID documents,

19 Volume III, paragraphs 34 and 39. For example, K89 , a VJ soldier in

20 Djakovica, testified that his commanding officer specifically told him

21 that:

22 "... not a single Albanian ear was to remain in Kosovo and that

23 their identification papers were to be torn, so as to prevent them from

24 coming back."

25 And that's found at transcript 9124, 9154, and 9201. It's quoted

Page 227

1 at Volume III, paragraph 34.

2 The Trial Chamber properly rejected the evidence of MUP or VJ

3 officials denying the existence of such a practice. The Trial Chamber

4 was also entitled to find that both MUP and VJ officials were involved on

5 the basis of witness testimony that implicated the VJ.

6 The Chamber properly considered and rejected Mr. Sainovic's

7 assertions that the confiscation and destruction of identification

8 documents did not cause the Kosovo Albanians to lose citizenship, but it

9 did find that it would be more difficult for forcibly expelled Kosovo

10 Albanians to return to Kosovo without proof of identity or citizenship or

11 to obtain new identification documents from the Serb or FRY/Serbian

12 forces or authorities.

13 The VJ and the MUP also committed other crimes against

14 Kosovo Albanians during the campaign of forcible displacement, some of

15 which the Chamber found to be joint criminal enterprise III crimes.

16 These included the looting and destruction of homes or property belonging

17 to Kosovo Albanians, the damage or destruction of cultural, historic, or

18 religious buildings, such as mosques; the summary execution of

19 Kosovo Albanian civilians and the sexual assault and rape of Kosovo

20 Albanian women. Examples of that are found throughout Volume II.

21 The pattern and scale of the MUP/VJ displacement crimes shows

22 that they were not random or spontaneous. As found by the Trial Chamber,

23 they were committed pursuant to the common criminal purpose. The crimes

24 were designed, as noted in Volume II, paragraphs 1156 and 1178, to

25 systematically terrorise the Kosovo Albanian population into leaving

Page 228

1 Kosovo and required a high level of co-ordination. The Chamber properly

2 found that co-ordination became the responsibility of Sainovic, Pavkovic,

3 and Lukic and was accomplished through the system put in place by

4 Milosevic.

5 But it wasn't just the pattern and scale of crimes that

6 influenced the Chamber's decision. It was also the strength of the

7 evidence showing the pattern. The Trial Chamber concluded that there was

8 a discernible pattern of crimes after a detailed and careful analysis of

9 over 400 pages, spanning almost the entirety of Volume II, running from

10 paragraph 1 to paragraph 1149. The numerous Albanian witnesses who

11 testified about their own experiences and that of their relatives,

12 friends, and neighbours gave a consistent account of the broad pattern of

13 violence and terror created and entertained by the FRY/Serbian forces.

14 Sainovic's challenges of the Chamber's reliance on

15 Kosovo Albanian witnesses by arguing their consistency between their

16 evidence indicates that they are in-credible, which he made at trial and

17 continues to make in his brief, was dealt with by the Trial Chamber

18 reasonably and it came to a very reasoned opinion that the testimony of

19 the Kosovo Albanians was reliable, noting that it was inconceivable that

20 such detailed and consistent accounts of the events could be concocted.

21 The Trial Chamber noted that the witnesses came from 13 different

22 municipalities and generally had no connection to one another.

23 It concluded that the accounts of the events by Kosovo Albanians

24 were similar because they experienced and witnessed the same pattern of

25 crimes methodically implemented by FRY/Serbian forces across Kosovo.

Page 229

1 The evidence of Kosovo Albanian witnesses was also corroborated

2 by several witnesses who were members of the VJ or MUP at the time of

3 these events and some of whom were involved in the crimes against

4 Kosovo Albanians. For example, the testimony of K73, a former VJ member,

5 is quoted at Volume II, paragraph 1172:

6 "... all of us took part in that operation, found it, if I can

7 say, unpleasant to expel women, children, elderly persons, and invalids.

8 I know the KLA pretty well and I've not seen a single woman of 70 years

9 old or a child or anybody in the KLA, people like that cannot be fighters

10 or terrorists. Or people in wheelchairs. But we expelled them all from

11 the baby in the cradle to the elderly people in wheelchairs and that's

12 the problem I have today."

13 Another VJ member, K90:

14 "... explained that the orders his unit received to 'relocate'

15 people were never written, but they were passed down verbally because the

16 authorities had learned from experience in Croatia and Bosnia that such

17 orders should not be in writing," "that orders that important would have

18 to be approved at the highest levels as these actions could not be

19 ordered by a local commander alone," and "that these orders were always

20 only related to Kosovo Albanian villages."

21 You will find that at Volume II, paragraph 153.

22 And it's not that the evidence of Kosovo Albanian witnesses was

23 not corroborated, that the Chamber was accepting their version, it was

24 corroborated by expert and forensic evidence, by MUP and VJ documentation

25 and video footage, and evidence from foreign journalists present in

Page 230

1 Kosovo during the crimes, such as Antonio Russo, an Italian journalist

2 who was present in Pristina and was expelled with the Kosovo Albanians

3 living there. I refer Your Honours to the findings set out in our

4 response brief at paragraph 266 and the supporting footnotes on this --

5 on the corroboration point.

6 In light of this strong and consistent body of evidence, the

7 Trial Chamber was correct to dismiss witness evidence denying the

8 existence of a plan to expel Kosovo Albanian civilians.

9 The Chamber was also correct to consider and then reject

10 alternative explanations for the mass expulsions. These conclusions and

11 some of the Chamber's reasoning can be found in Volume II, paragraph 1175

12 to 1179.

13 Contrary to Sainovic's submissions this morning, the

14 Trial Chamber found that the NATO bombing did not cause displacement en

15 masse of Kosovo Albanians. The Chamber noted the fact that none of the

16 Kosovo Albanians who testified listed the NATO bombing as among the

17 causes of their or others' departure. As the Chamber found, the NATO

18 campaign was, in fact, an opportunity for the JCE members to implement

19 the criminal purpose, allowing them to inflict a heavy blow to the KLA

20 and forcibly displace enough Kosovo Albanian civilians to change the

21 ethnic balance of Kosovo and blame "with plausible deniability" both the

22 KLA and NATO, and that's found at Volume III, paragraph 92.

23 The JCE members were found to have been waiting for such an

24 opportunity. Their forces were at full strength in the days immediately

25 prior to the NATO campaign which began on 24 March. The JCE members were

Page 231

1 fully prepared to take advantage of the moment when it arrived, having

2 used the negotiations period and subsequent delay in the arrival of

3 international military presence to send additional forces to Kosovo in

4 breach of the October Agreements. I refer you to Volume III,

5 paragraphs 76 and 92.

6 The Trial Chamber considered and rejected other explanations for

7 the expulsions. It rejected Defence allegations that the combat action

8 between the KLA and FRY/Serbian forces could have been the primary cause

9 of the displacements. That's at Volume II, paragraph 1177; Volume II,

10 paragraphs 285, 887, and 1175.

11 It considered and rejected the argument that the crimes were a

12 legitimate response to KLA action by noting comparatively small numbers

13 of KLA members and their lack of fighting equipment, Volume II,

14 paragraph 1177, and the heavy-handed manner in which the VJ and MUP

15 fought the KLA, including their use of indiscriminate violence against

16 civilian people and property. That's paragraph 1178, Volume II.

17 Finally, the Trial Chamber found that in two locations the

18 departure of Kosovo Albanians did occur in part due to KLA instructions.

19 However, it found that this did not undermine its conclusion that

20 Kosovo Albanian civilians left en masse because of the violent actions of

21 the FRY/Serbian forces in light of the strength of the evidence presented

22 in the case and I refer you to Volume II, 1175.

23 Apart from the Chamber's findings of the widespread, organised,

24 and co-ordinated campaign of violence and fear, the Chamber also

25 determined that the JCE existed based on other factors, such as the

Page 232

1 preparatory acts taken in the months leading up to the crimes and the

2 clandestine operations in April and May 1999 to conceal 700 bodies

3 through their exhumation, transportation, and reburial in Serbia proper.

4 I have discussed many of these preparatory acts already in discussing the

5 formulation of the common plan. They are fully detailed in Volume III,

6 paragraphs 48 to 96.

7 Taking into account this wealth of mutually reinforcing evidence,

8 none of the appellant's piecemeal attacks, taken individually or

9 collectively, undermine the reasonableness of the Trial Chamber's finding

10 that a joint criminal enterprise existed.

11 Now, let me turn just very briefly to Joint Command.

12 The common criminal purpose was carried out by the JCE members

13 through a system of co-ordination which in 1999 had manifested itself as

14 an organisation called the Joint Command and the Chamber's conclusion

15 that a system of co-ordination similar to the Joint Command was active in

16 1999 was reasonable because a massive attack that was carried out under

17 the cover of NATO bombings could not happen spontaneously. It required

18 planning, it required co-ordination, and it required it at the highest

19 levels; highest levels of the police, highest levels of the military, and

20 highest political levels. And, indeed, the Trial Chamber found a high

21 level of co-ordination and co-operation between the VJ and the MUP

22 existed during the planning and execution of the joint operations

23 commencing in March 1999, Volume I, paragraph 1023.

24 Mr. Sainovic challenges the Trial Chamber's findings that a body

25 called the Joint Command existed after October 1998 and throughout 1999,

Page 233

1 and that this body had the power to command forces on the ground and that

2 Sainovic was ever a part of it. Similar arguments are advanced by

3 Pavkovic, Lukic, and Lazarevic. And these will be addressed by my

4 colleagues later in the week. Ms. Martin Salgado will deal in more

5 detail with Mr. Sainovic's personal contributions, and I'll just focus on

6 the existence and authority of the Joint Command.

7 The challenges seek to undermine the Chamber's core findings that

8 the Joint Command "played a significant role in directing and

9 co-ordinating the activities of the VJ and the MUP in Kosovo in both 1998

10 and 1999," Volume III, paragraph 1023, and that "in 1999 the

11 co-ordination system continued to function," Volume I, paragraph 1151.

12 These were reasonable conclusions to draw, given the extensive

13 evidence upon which they were based, such as: Explicit Joint Command

14 orders from 1999, a Joint Command meeting on 1 June 1999 mirroring the

15 1988 [sic] meetings; numerous references to the Joint Command throughout

16 1999; and other evidence which demonstrates that the Joint Command system

17 continued to function in 1999 and co-ordinate the joint operations of the

18 VJ and the MUP.

19 While there is more evidence from 1998 detailing the inner

20 workings of the Joint Command, for instance, minutes of an almost daily

21 Joint Command meetings, the evidence nonetheless demonstrates that the

22 need for this co-ordination continued into 1999 and did -- as did the

23 co-ordination system including the Joint Command itself.

24 The need for the Joint Command is demonstrated by the fact and

25 the evidence that the VJ and the MUP could not work effectively together.

Page 234

1 If left to themselves, they wouldn't -- in fact would not. The

2 Trial Chamber found that they tried in early 1998 and it did not work

3 well, Volume I, paragraph 1025. As a result, in May or June 1998,

4 efforts began to improve co-ordination under Milosevic's direction,

5 ultimately resulting in the formation of the Joint Command body,

6 Volume I, paragraphs 1005 to 1011 and 1109. Milosevic noted that when

7 the system was first created in the second half of 1998, the police, the

8 army, and politicians each had a part to play in the anti-terrorism plan

9 that had been adopted. I refer you to Volume I, paragraph 995. The

10 Trial Chamber found that when important actors, including the accused,

11 referred to the Joint Command in 1999, they were adverting to this whole

12 system of co-ordination, Volume I, paragraph 1151.

13 The Joint Command comprised high-ranking members of the VJ and

14 MUP and high-ranking civilian leaders like Milomir Minic, president of

15 the Assembly and member of the Working Group for Kosovo, and of course

16 Sainovic. Minic and Sainovic played a leadership role in 1998 and when

17 Minic left Kosovo at the end of 1998, Sainovic remained to continue the

18 co-ordination.

19 The political dimension was also key for Milosevic. In 1999,

20 Sainovic was the person Milosevic used to orchestrate the events in

21 Kosovo. I refer you to Volume III, 467. And as one of Milosevic's

22 closest advisors, he was the person to do the job. Several witnesses

23 were of the view that Milosevic was in total control and Sainovic was the

24 next in line, Volume III, paragraphs 200, 409, and 467.

25 The Joint Command also allowed Slobodan Milosevic to direct the

Page 235

1 actions of the MUP in Kosovo, Volume I, paragraph 1110 and Volume III,

2 274.

3 Through Sainovic, together with Pavkovic and Lukic, Milosevic

4 could co-ordinate the activities of the MUP and the VJ. It enabled

5 Milosevic to direct the MUP, a republican organ, which was otherwise

6 outside the scope of his federal powers. It also allowed him to deploy

7 VJ units in Kosovo despite objections within the VJ.

8 Against this backdrop, I will explain why, and very briefly, I'm

9 almost done, the Trial Chamber reasonably concluded that this system of

10 co-ordination continued into 1999 and that this system had an important

11 influence on the events on the ground.

12 First, there are 16 orders from 1999 which all bear the heading

13 "Joint Command," Volume I, paragraph 1122, containing orders for the

14 engagement of units. At the end of each order there is some variant of

15 the phrase "The Joint Command for KiM shall command and control all

16 forces during combat operations from the area of Pristina," and the

17 phrase "Joint Command" appears until the header and signature block,

18 Volume I, paragraph 1122 and 1137.

19 Significantly, the Trial Chamber noted that several of the 1999

20 Joint Command orders identify forces engaging in combat operations in

21 areas and on dates that correspond to the crime sites in the indictment.

22 I refer to Volume I, paragraph 1123, and Volume III, paragraph 695. For

23 example, the order of the 549th Motorised Brigade from 23 March 1999

24 matches the general task and location specified in a Joint Command order

25 also dated 23 March. Both orders target Suva Reka-Orahovac with the task

Page 236

1 of destroying Siptar forces. These orders correspond to the wave of

2 attacks carried out in several towns in the Orahovac municipality, found

3 at Volume II, paragraph 296. The after-action report by the

4 549th Motorised Brigade states the co-ordination of the forces functioned

5 well and that the command of the forces was under the Joint Command of

6 the MUP and VJ. The judgement gives further examples at Volume I,

7 paragraphs 1124 to 1126.

8 The Trial Chamber found that these orders originated from the

9 Pristina Corps command and that the VJ and MUP chains of command remained

10 intact throughout 1999. The system of co-ordination that operated in

11 1999 did not supplant the chains of command but utilised them through the

12 influence of its members. The Trial Chamber found that in 1998 that

13 while some Joint Command members might not have had the de jure powers to

14 order MUP and VJ units, the individual members of the Joint Command

15 brought their de facto influence to bear on how the plan for the

16 suppression of terrorism in Kosovo was put into effect. I refer you to

17 Volume I, paragraph 1110.

18 Similarly, it found that the 1999 orders with the heading

19 "Joint Command" lent a greater air of authority to the commands issued

20 and that references to the Joint Command constituted an important factor

21 during the planning and implementation of joint operations between the

22 MUP and the VJ, Volume I, paragraph 1151.

23 JUDGE LIU: Now, Mr. Kremer --

24 MR. KREMER: Yes.

25 JUDGE LIU: -- I believe the one-hour response this morning is

Page 237

1 over, so we have to stop here because of the technical reasons --

2 MR. KREMER: I have maybe three minutes left, but if we have to

3 stop, we'll stop.

4 JUDGE LIU: I think we have to stop --

5 MR. KREMER: Okay.

6 JUDGE LIU: -- because they have to change the tapes.

7 MR. KREMER: Yes, that's fine.

8 JUDGE LIU: Yes. So we adjourn until 2.30.

9 Yes, Mr. Ackerman.

10 MR. ACKERMAN: Your Honour, I have a very, very brief request, if

11 you will allow me to make it now. As the Chamber knows, a bunch of

12 additional evidence was admitted on our request on our case and that

13 complicates the arguments that I need to make to you because we have to

14 add that. And I've got about three hours of argument but only two hours

15 of time. And I'm just wondering if the Court can maybe find a way to

16 grant me an additional hour either by taking a half-hour off lunch or

17 extending a half hour in the evening or something like that. I really do

18 need that additional time if I can have it.

19 JUDGE LIU: Well, I'm afraid not because a Scheduling Order has

20 been issued on the 20th of February, 2013. You should have made that

21 request before the hearings. I'm sorry, I cannot grant your request at

22 this moment.

23 Well, so we'll resume at 2.30 this afternoon.

24 --- Luncheon recess taken at 12.59 p.m.

25 --- On resuming at 2.30 p.m.

Page 238

1 JUDGE LIU: Yes, Mr. Kremer, you may proceed.

2 MR. KREMER: Thank you, Mr. President.

3 I left off just before the break explaining why the Trial Chamber

4 reasonably concluded that the system of co-ordination continued into 1999

5 and that the system had an important influence on the events on the

6 ground. The first discussion was in relation to the 16 orders under the

7 title "Joint Command" issued in 1999. The second is the evidence of a

8 meeting on 1 June 1999 that was similar to the Joint Command meetings

9 held throughout 1998. Sainovic, Pavkovic, and Lukic were there.

10 Presentations by Pavkovic and Lukic included very technical details about

11 what was going on during VJ and MUP activities. General Vasiljevic, the

12 former head of the VJ security administration, testified that everyone

13 treated Sainovic deferentially throughout and that the reports focused

14 only on that day's activities, giving him the impression that the

15 meetings were a daily occurrence, and that's Volume I, paragraph 1145.

16 This is consistent with the fact that in 1998, between July and October,

17 there was evidence of almost daily meetings of the Joint Command. And

18 that's Exhibit P1468.

19 The third piece of evidence is the need for and continued

20 existence of the Joint Command in 1999 was clear from another meeting

21 held on 29 October 1988 -- or 1998. It was chaired by Milosevic and

22 attended by Sainovic, Milutinovic, Pavkovic, and Lukic. I refer you to

23 Volume I, paragraphs 1097 and 1099. And agreement was reached at that

24 meeting that the Joint Command should continue. Milosevic pointed

25 towards "the need for the continuing function of the Joint Command for

Page 239

1 Kosovo and Metohija and the co-ordination staff." I apologise to my

2 colleagues for the mispronunciation.

3 Sainovic himself agreed by expressing support for the

4 continuation of the Joint Command, and these quotations are cited by the

5 Trial Chamber in Volume I, 1099. And fourth, the Trial Chamber cited

6 several other independent pieces of evidence regarding the

7 Joint Command's authority in 1999. Vasiljevic stated that the

8 Joint Command in 1999 had the force of a mini-Supreme Command, Volume I,

9 paragraph 1114.

10 Ojdanic, Chief of the General Staff of the VJ, stated at a VJ

11 General Staff collegium held on 21 January 1999 that if the "joint staff,

12 command or whatever" decided that an operation in the Racak village could

13 not be carried out without the VJ's assistance, they would need the

14 approval of the FRY president; alternatively, the Joint Command might be

15 receiving orders directly from the FRY president which they could pass on

16 to him, Volume I, paragraph 1120.

17 Pavkovic sent a letter on 25 May 1999 regarding the failed

18 attempts at having the MUP resubordinate to the VJ. He stated that the

19 order should be either reinforced or annulled. If annulled, command of

20 the MUP should be returned to the hands of the Ministry of the Interior

21 through the Joint Command as had so far been the case, and that's found

22 in Volume I, paragraph 1121.

23 And finally, in June 2001, Pavkovic made a statement on the VJ

24 web site concerning the refrigerated lorry in the concealment of bodies

25 that was found in the Danube in 1999. In relation to the incident he

Page 240

1 stated that police co-operation with the army "was co-ordinated through

2 political actors in the Joint Command, formed for that purpose." That

3 quotation is used by the Trial Chamber in Volume I, paragraph 1117.

4 Against this backdrop of evidence from both 1998 and 1999, the

5 Trial Chamber reasonably found that the Joint Command system of

6 co-ordination continued to function in 1999 and facilitated the

7 co-operation and co-ordination of the VJ and MUP. This co-operation and

8 co-ordination was crucial to the successful implementation of the

9 joint criminal enterprise and had direct impact on the events on the

10 ground.

11 I just will conclude my remarks and then pass the podium over to

12 Ms. Martin Salgado, and I will answer the last question posed by

13 Your Honours to the parties. And this deals with the crimes in Tusilje.

14 We agree that Tusilje should have been pled in the indictment and that no

15 corrective actions were taken in our pre-trial brief or 65 ter filings.

16 The evidence led at trial and the Chamber's findings show that Tusilje

17 was a collection point for Kosovo Albanians fleeing from the village of

18 Turcevac and that accused were convicted of the deportations from

19 Turcevac. On Friday we will discuss why even were the Chamber to

20 overturn the Tusilje convictions there should be no impact on sentencing.

21 The accused were still convicted of the deportation of over 700.000

22 Kosovo Albanians from the 13 representative municipalities. The gravity

23 and scale of the crimes and their impact on the victims, as we will argue

24 on Friday, warrant an increase in sentences regardless of the disposition

25 of the Tusilje conviction.

Page 241

1 Unless you have questions of me specifically, I will pass the

2 podium to my colleague.

3 JUDGE LIU: Yes, Judge Tuzmukhamedov has a question to ask.

4 JUDGE TUZMUKHAMEDOV: Thank you, Judge Liu. Back in Arusha I

5 went by Judge T.

6 Mr. Kremer, you stated a few moments ago that JCE had an

7 important influence on the events on the ground. And the statement echos

8 the Trial Chamber's finding that the Joint Command had influence over the

9 MUP and VJ in respect of the implementation of the various stages of the

10 plan for combatting terrorism. How would you characterise in legal and

11 in administrative terms the source and the extent of this influence and

12 practice? In particular, how binding was this influence? What were the

13 modes of its implementation? What would be the consequences of

14 non-compliance? And could you refer to any instances of non-compliance?

15 Thank you.

16 MR. KREMER: The influence stems from the influence of

17 Slobodan Milosevic, who was the -- one of the JCE members and who had at

18 that point in time substantial power over all events in the FRY and

19 Serbia. The influence was exercised by being the point person for

20 Milosevic on the ground. And to the extent that there was disagreement

21 with the issues, Milosevic could replace individuals, as he did with

22 General Perisic who was replaced with Samardzic. Samardzic was replaced

23 by General Pavkovic at the end of 1998. The ultimate discussions in

24 relation to some of these issues moved and there's evidence of meetings

25 in Belgrade where Pavkovic and Lukic give reports to Milosevic and

Page 242

1 Sainovic is present. And so the influence and authority of Sainovic

2 exists throughout as the representative and is evident both in meetings

3 in Belgrade and is evident in his being placed in the position in charge

4 of the KVM and also his going to MUP meetings, his going to VJ meetings,

5 and demonstrating his influence. It wasn't sort of a - what am I saying?

6 The meetings themselves weren't used to exercise the influence; the

7 influence was palpable through their ability of all three of the

8 joint criminal enterprises to bring to bear their influences to make the

9 joint co-operation work. To the extent that trains had to be

10 rescheduled, to the extent that buses had to be available, to the extent

11 that civilian authorities had to be co-operating as well, everything was

12 consolidated so that the events could take place starting when the NATO

13 bombings started, to seize that opportunity and set free all of the

14 resources that had been put in place all over Kosovo in order to carry

15 out the common criminal purpose. Bringing in extra military personnel,

16 bringing in extra police personnel, ensuring that the police and the

17 military worked together at the same places and accomplishing the

18 political ends because the notional goal was to combat terrorism, to

19 fight the KLA. But in practice - as the Chamber found - what was really

20 happening on the ground in a consolidated and co-ordinated way was that

21 the inhabitants of Kosovo who were Albanian were being pushed out in

22 order to change the balance of the population to give the Serbs a

23 majority or aiming towards a majority and to do it by criminal means.

24 Because all over Kosovo in the 13 municipalities the criminal means were

25 demonstrated visibly and over and over and over again in the first

Page 243

1 several weeks of the campaign.

2 JUDGE TUZMUKHAMEDOV: Thank you for that. Actually, I didn't ask

3 you about Mr. Sainovic personally, but thank you for that anyway. I

4 don't want to be annoying, but I think that my question was very specific

5 as to the description in legal and in administrative terms the sources of

6 the influence of the Joint Command on events on the ground and about

7 specific instances, if you could think of any, of consequences of

8 non-compliance with the manifestations of that influence.

9 MR. KREMER: The Joint Command operated as a co-ordinating body,

10 so there are no specific legal authorities that it possessed. The VJ

11 chain of command operated and the MUP chain of command operated. The VJ

12 chain of command went up to the supreme commander, Milosevic; the MUP

13 chain of command went to the minister of interior. But getting them to

14 work together, there was no legal vehicle that was -- presently it was

15 done through the strong will and political influence of

16 Slobodan Milosevic, through his agent, Mr. Sainovic. To the extent that

17 there is no example of someone refusing to follow ...

18 [Prosecution counsel confer]

19 MR. KREMER: There are examples in Volume I of Pavkovic

20 disagreeing with the 3rd Army when he's head of the Pristina Corps

21 command, but it's within the same chain of command as opposed to refusing

22 to follow a Joint Command order.

23 JUDGE TUZMUKHAMEDOV: Thank you.

24 JUDGE LIU: Mr. Kremer, I have a question to ask you. What is

25 your position on the relationship between the common criminal purpose in

Page 244

1 1998 and the joint criminal enterprise in 1999? This morning the Defence

2 counsel submitted that even if there is joint criminal enterprise, the

3 Trial Chamber should have to look into the evidence in 1999 instead of

4 1998. What's your position on that?

5 MR. KREMER: The simple answer, Your Honour, is that the

6 Trial Chamber looked at events prior to the commission of the crimes.

7 Let's start on March 24th, 1999, and look back to confirm and support its

8 findings that there was at least a joint criminal enterprise on that

9 date. And as they looked back, looking at the preparations for the

10 attacks on the Kosovo Albanians, starting March 24th, 1999, they found

11 that the joint criminal enterprise was formed well before that. And when

12 I spoke about the date of at least October this morning, I gave you

13 examples of references that the Trial Chamber used to identify the fact

14 that the joint criminal enterprise predated significantly the

15 commencement date of the crimes.

16 In terms of looking at 1998, I think the words of the

17 Trial Chamber are clear. They're not looking at 1998 to confirm that

18 there is a joint criminal enterprise, but to support their -- or they're

19 using it to support their finding that there was a joint criminal

20 enterprise evident from the events that took place on the ground, the

21 pattern of the crimes, the widespread nature of the crimes that could

22 only have occurred with the support, influence, and involvement of the

23 senior military police and political leadership and then in order to

24 evaluate that they go back and look at events that have similar factual

25 relationships to the events that took place in 1999 and that dealt with

Page 245

1 those at length in terms of its analysis to ensure that the conclusion it

2 was drawing on the existence of a joint criminal enterprise in 1999 were

3 sound and reasonable.

4 JUDGE LIU: Thank you.

5 MR. KREMER: Thank you.

6 MS. MARTIN SALGADO: Good afternoon, Your Honours. I will be

7 addressing the legal position in answer to Your Honours' tenth question

8 at page 3 of the order for the preparation of the appeal hearing. I will

9 also deal with the actus reus part of the question as it relates to

10 Sainovic. My colleague, Ms. Monchy, will then address the mens rea part

11 of that question as it relates to Sainovic and the remaining mens rea

12 questions.

13 The tenth question is as follows:

14 "Discuss, as a legal matter as well as with respect to the

15 particular Trial Chamber's findings for each appellant convicted of

16 JCE I, whether the actus reus and mens rea of a JCE member may be

17 fulfilled prior to the existence of the common purpose of the JCE."

18 Before answering Your Honours' question on the law, I would

19 simply like to clarify the terms used. When referring in the question to

20 the "actus reus" "of a JCE member," we understand Your Honours to be

21 asking after one specific objective element, namely, the participation of

22 the accused in the common purpose. Participation in a common purpose

23 requires conduct amounting to a significant contribution to further the

24 common purpose.

25 When referring to the "mens rea" "of a JCE member," we understand

Page 246

1 Your Honours to be asking after the two subjective elements of, for our

2 purposes, the first category of joint criminal enterprise. And these are

3 that: One, the accused intended the commission of the crime; and two,

4 that the accused intended to participate in a common purpose aimed at the

5 crime's commission.

6 To answer your question then, as a matter of law, generally, an

7 accused's actus reus - in the sense of his significant contribution - and

8 his mens rea cannot be fulfilled prior to the existence of the common

9 purpose. And the reasons for this position are as follows:

10 The criminal purpose needs to be common to all of the persons

11 acting together within a joint criminal enterprise, and this is the same

12 as saying that they need to have a shared intent.

13 Since an accused's contribution must significantly further the

14 common purpose, in the sense that it must be in some way directed to the

15 furthering of the common purpose, it cannot be fulfilled before that

16 common purpose comes into existence.

17 And similarly, the accused's mens rea cannot be fulfilled until

18 it is shared by one or more members of the joint criminal enterprise.

19 And we note in connection with this position that, where

20 necessary, an accused may be held liable for conduct carried out before

21 the existence of a common purpose under other modes of liability in the

22 Statute.

23 Now, the position just explained does not mean that the conduct

24 carried out by an accused before the existence of the common purpose is

25 irrelevant to his joint criminal enterprise liability. It can be

Page 247

1 relevant in at least two ways.

2 First, it is clear that the state of mind and conduct of an accused

3 prior to the existence of the common purpose can be taken into

4 consideration as evidence of that accused's JCE mens rea, and our

5 authority for this is Krajisnik appeals judgement paragraphs 200 to 204,

6 paragraph 492, and also Krajisnik trial judgement, paragraphs 925 to 929.

7 Second, an accused can bring in or make use of the results of

8 conduct predating the existence of the common purpose to further that

9 common purpose. "Bringing in" or "making use" of those results may then

10 constitute a contribution to this common purpose, provided that: One,

11 this "bringing in" or "making use of" is carried out with the required

12 intent; and two, it significantly furthers the common purpose. And in

13 such cases, it makes no sense to speak about "pre-JCE contributions,"

14 since it is the "bringing in" or "making use" of the results of previous

15 conduct that amount to the contribution and this is done once the common

16 purpose is in existence.

17 And to give examples, other cases before this Tribunal have

18 adopted this approach. So, for example, in Krajisnik, the Appeals

19 Chamber affirmed the Trial Chamber's reliance on Krajisnik setting up of

20 political structures before the period of the JCE's existence, which were

21 later used to implement the common purpose during the JCE period. And

22 you can find this at the Krajisnik appeals judgement, paragraphs 162 to

23 218.

24 And similarly, in considering Martic's participation in the

25 joint criminal enterprise, the Trial Chamber found that Martic's contacts

Page 248

1 with other JCE members before the common purpose, which then continued

2 and intensified during the JCE period, resulted in substantial logistical

3 and military support that was later used to further the common purpose.

4 And our authority for that is at Martic appeal judgement, paragraph 117

5 and Martic trial judgement, paragraphs 445 and 448.

6 Now, that is the position on the law, and we will separately

7 address the findings for each appellant convicted under

8 joint criminal enterprise liability. But for all of them, Your Honours,

9 we submit that on the facts of this case, this issue does not arise.

10 These appellants made their significant contribution to the common

11 purpose and had the required intent during the time of the existence of

12 the common purpose, which was well before the crimes were committed in

13 1999, and, at a minimum, throughout the period of the crimes charged.

14 And that concludes my presentation on the legal part.

15 As for the factual part of the question relating to Sainovic, we

16 understand Your Honours to be asking: Was Sainovic found to have

17 contributed to the joint criminal enterprise before the existence of the

18 common purpose? And the short answer is no.

19 As a member of the Joint Command and as the highest-ranking

20 politician meeting with Pavkovic and Lukic, Sainovic continuously

21 influenced and co-ordinated the activities of the forces of the FRY and

22 Serbia in Kosovo. While Sainovic's significant contribution is grounded

23 on conduct carried out throughout the period when the crimes were

24 committed in 1999, his authority and involvement in Kosovo remained the

25 same from the summer of 1998 onwards. And as such, his authority and

Page 249

1 involvement extended from then and into the crimes' period.

2 And I intend to elaborate on this answer by explaining how

3 Sainovic contributed to the common purpose and why his contribution was

4 significant, and I'll do that by describing his role in 1998 and 1999.

5 Turning, therefore, to his role in Kosovo. Sainovic was the

6 political co-ordinator of the activities of the VJ and the MUP in Kosovo

7 from the second half of 1998 to the beginning of the second half of 1999,

8 and the authority for this is at Volume III, paragraphs 331 and 462. And

9 I'll explain what is meant by "political co-ordinator."

10 As Milosevic's man in Kosovo, Sainovic brought the political

11 authority necessary to overcome the reluctance of the VJ and the MUP to

12 work together in Kosovo. In addition, Sainovic gave Milosevic's approval

13 for the actions of the VJ and the MUP and conveyed Milosevic's

14 instructions and his own to those forces. And in this way, by bringing

15 Pavkovic and Lukic together and giving them instructions, Sainovic

16 co-ordinated and influenced the activities of the VJ and the MUP

17 respectively. And these activities were then implemented by Pavkovic and

18 Lukic down the MUP and VJ -- or down the VJ and MUP chains of command.

19 Now, the Chamber reasonably found that Sainovic's involvement

20 continued into the period when the crimes were committed in 1999. And

21 that his authority at that time was undiminished and that the following

22 factors did not change indicates the continuation of Sainovic's

23 involvement and authority.

24 First, the way he operated and his interlocutors were the same.

25 In 1999, Sainovic continued to co-ordinate the forces in a manner similar

Page 250

1 to 1998. He had the help of the same people - that's Pavkovic and

2 Lukic - with whom he was in continuous contact and he acted at the

3 instigation of Milosevic. And that's at Volume III, paragraph 464.

4 The second factor is that the de facto source of Sainovic's

5 authority was also the same. He was one of the closest and most trusted

6 associates of Milosevic both in 1998 and 1999. And thanks to this

7 relationship, he led Joint Command meetings and other meetings with VJ

8 and MUP officials. And also thanks to this relationship, he became

9 chairman for the commission of co-operation with the KVM. And that's at

10 Volume III, paragraph 427. And indeed while between November 1998 and

11 March 1999, Milosevic was replacing individuals such as Perisic,

12 Samardzic, and Dimitrijevic, he kept Sainovic in prominent roles dealing

13 with Kosovo and this allowed Sainovic to expand his role as Milosevic's

14 political representative in the province. And that is at Volume III,

15 paragraph 427.

16 The third factor, Your Honours, is that in 1999 Sainovic

17 continued to show a deep familiarity with the events taking place in

18 Kosovo and still travelled there often. And in fact, the bulk of his

19 trips took place in late March and early April, when the majority of the

20 crimes were committed.

21 Turning to Sainovic's participation when the crimes were

22 committed. Specifically during the crimes' period, Sainovic co-ordinated

23 and influenced the activities of the VJ and the MUP in Kosovo, as a

24 member of the Joint Command and as the highest-ranking politician meeting

25 with Pavkovic and Lukic. Widespread crimes were committed through the

Page 251

1 activities which Sainovic co-ordinated, and in particular the joint VJ

2 and MUP operations.

3 Now, throughout the crimes period Sainovic was a member of the

4 MUP -- of the Joint Command, I'm sorry, and the failure of the MUP to

5 resubordinate to the VJ despite orders for it to do so in April 1999

6 confirms that there was a continued need for political involvement in

7 co-ordinating these forces. And indeed, referring to problems of

8 resubordination in May 1999, Vasiljevic gave evidence that "the executive

9 command was in the hands of Mr. Sainovic down there, who was there for

10 that purpose, to co-ordinate the activities of the army and the MUP."

11 And that's at Volume III, paragraph 339.

12 The 16 Joint Command orders in evidence, which Mr. Kremer

13 mentioned this morning, are the product of the political co-ordination of

14 joint VJ-MUP operations, some of which correspond to indictment crimes

15 committed by VJ and/or MUP forces. The earliest Joint Command order in

16 evidence from 1999 is dated 19th of March and it denotes Joint Command

17 involvement just prior to when the crimes were committed, preparing the

18 groundwork for the mass expulsions that soon followed.

19 In addition to his Joint Command position in 1999, Sainovic's

20 participation at meetings with VJ and MUP officials dealing with Kosovo

21 further demonstrates that he was influencing and co-ordinating the VJ and

22 the MUP during the crimes' period --

23 JUDGE LIU: Well, counsel, would you please slow down for the

24 sake of the translation.

25 MS. MARTIN SALGADO: I apologise, Your Honour.

Page 252

1 In these meetings, Sainovic's role was to liaise between the VJ

2 and the MUP and Milosevic. At meetings with the MUP leadership in

3 Kosovo, Sainovic was ensuring co-ordination between the VJ and the MUP

4 and was authorising MUP actions. He was also giving instructions and

5 relaying Milosevic's orders. And he was doing this, despite the fact

6 that he and Milosevic were federal politicians and therefore were not in

7 the chain of command or in the formal chain of command of the republican

8 MUP.

9 And, for example, at the meeting of 4 April 1999 with senior

10 police officials in Kosovo, which took place in Pristina, Sainovic

11 declared the end of the first stage of anti-terrorist operations. In

12 that same meeting, he also assigned two other very specific tasks, which,

13 he said, were to be planned and carried out together with the VJ. And

14 that's at Volume III, paragraph 341.

15 At the MUP staff meeting of 7 May 1999, also in Pristina,

16 Sainovic outlined the main objectives and tasks and said that after

17 Operation Jezerce, and I apologise for the pronunciation, special police

18 forces in co-operation with the VJ would "work on destroying the

19 remaining terrorist groups."

20 And at this same meeting -- I'm sorry, and that's from

21 Volume III, paragraph 346. And at this same meeting he also referred to

22 an order from Milosevic, stating that it should be communicated to all

23 police commanders, as a task assigned by the Supreme Command. And

24 contrary to the Defence argument of this morning, this shows Sainovic

25 actually putting political weight behind the order and its communication.

Page 253

1 These meetings confirm Vasiljevic's evidence that in 1999

2 Sainovic was "to be informed and co-ordinate the eventual problems

3 between the VJ and the MUP and to follow the overall situation on Kosovo,

4 keeping Belgrade informed thereof." And that's at Volume III,

5 paragraph 357. And reinforcing Sainovic's liaison function is the

6 evidence that in June 1999 Ojdanic complained to Vasiljevic that Pavkovic

7 was giving more importance to keeping Sainovic informed than to informing

8 Ojdanic, his own immediate superior. And that's at Volume III,

9 paragraph 361.

10 Sainovic's pivotal role in co-ordinating MUP and VJ activities

11 remained the same until the end of the 1999 campaign, and this is shown

12 in the 1 June 1999 Joint Command meeting in Pristina attended by

13 Sainovic, Lukic, Pavkovic, Lazarevic, and other VJ, MUP, and civilian

14 leaders. At the 1 June 1999 meeting, Sainovic did a number of things:

15 One, after detailed presentations by Pavkovic, Lazarevic, and Lukic on

16 the day's VJ and MUP activities, Sainovic authorised their actions. He

17 said, "Okay, do as you've planned," referring to an action in Drenica to

18 engage 300 police officers, and that's at Volume III, paragraph 356.

19 Two, he gave Milosevic's instructions and his own, and he did so by

20 ordering that activities of the joint forces stop due to the agreement

21 between Milosevic and Martti Ahtisaari, and when those at the meeting

22 protested, exercised discretion by instructing completion of these

23 activities in the following days. And that's at Volume III,

24 paragraph 359, and indeed hostilities stopped on 10 June 1999, and that's

25 at Volume III, paragraph 743. And we have heard this morning the

Page 254

1 argument that Sainovic could not have issued this order because,

2 according to the Defence, the Military Technical Agreement had not been

3 concluded. But it is clear from the testimony of Branko Krga, which is

4 cited in Volume I, footnote 3322, that the agreement Sainovic was

5 referring to was an interim agreement. And it is also clear from the

6 testimony of Stojanovic, which is cited at Volume III, paragraph 356,

7 that what Sainovic conveyed was that an agreement between the FRY and the

8 international community would be signed soon, that it envisaged the

9 withdrawal of the VJ and the MUP from Kosovo, and that this withdrawal

10 would have to commence soon.

11 As to its significance, Your Honours, Sainovic's conduct amounted

12 to a significant contribution to the joint criminal enterprise because

13 the organised campaign of forcible displacement implemented in 1999

14 entailed extensive co-operation and co-ordination between the VJ and the

15 MUP in furtherance of the policy pursued by Belgrade.

16 Moving on very briefly, Your Honours, to Sainovic's participation

17 before the crimes' period. In addition to the specific evidence of his

18 co-ordination and influence during the crimes, the Chamber relied on

19 evidence of Sainovic's authority and involvement before this period. It

20 correctly found on the basis of all of this evidence that he was the

21 political co-ordinator of the VJ and the MUP throughout and that in this

22 role he significantly contributed to the common purpose. And that's at

23 462 and 467.

24 In the same way as during the NATO campaign, Sainovic

25 co-ordinated and influenced the VJ and MUP in Kosovo in 1998 and before

Page 255

1 24 March in 1999.

2 The Chamber found that in 1998 he was one of the leading members

3 of the Joint Command, and that as such he possessed extensive de facto

4 powers over both the VJ and the MUP in Kosovo and, together with Pavkovic

5 and Lukic, co-ordinated VJ and MUP activities in implementing the plan

6 for combatting terrorism. And that's at Volume I, paragraph 1110; and

7 Volume III, paragraphs 462, 468.

8 Following the completion of this plan in October 1998, he

9 co-ordinated the forces in Kosovo while chairman of the commission for

10 co-operation with the KVM, and he did so by continuing to deal with and

11 have influence over Pavkovic and Lukic without interruption, much like he

12 had done before and much like he would continue doing after.

13 And on this subject, let me just remark that Ojdanic's complaint

14 that I have mentioned before, the one where in 1999 he says that Pavkovic

15 is placing more importance of keeping Sainovic informed rather than on

16 informing his immediate superior, this complaint actually reflects

17 instructions that Sainovic had issued much before. There is evidence

18 that on 12th November 1998, after assuming his role as chairman of the

19 commission, Sainovic instructed Pavkovic and Lukic to continue with the

20 already established practice of informing Sainovic of important incidents

21 first and only then informing their own superiors. And that's at

22 Volume III, paragraph 373.

23 And as an example of this, the Chamber found that the way

24 Sainovic managed the aftermath of the Podujevo and Racak incidents, which

25 took place at the end of December 1998 and in mid-January 1999,

Page 256

1 respectively, demonstrated that he was in regular contact with Lukic and

2 Pavkovic, exerted influence over them, and knew about impending joint

3 VJ-MUP actions, and that's at Volume III, paragraphs 395, 401.

4 To conclude, Your Honours, the Chamber reasonably found that

5 Sainovic was one of the most crucial members of the joint

6 criminal enterprise. In the months leading up to the crimes, Sainovic

7 co-ordinated and influenced actions of the VJ and the MUP in Kosovo and

8 acted as the liaison between these forces and Milosevic. Once the crimes

9 began, Sainovic's continued co-ordination and influence significantly

10 furthered the common purpose. And for that we ask that you see

11 Volume III, paragraphs 462 and 467.

12 And thus, in answer to Your Honours' tenth question, Sainovic's

13 contribution to the joint criminal enterprise took place during the

14 existence of the common purpose. And in response to Sainovic's appeal

15 and his submissions here today, it is our position that his grounds of

16 appeal relating to his contribution to the joint criminal enterprise

17 should be dismissed.

18 And unless Your Honours have any questions, I'll pass on to my

19 colleague.

20 JUDGE LIU: Yes, Judge T. I'll go by Arusha way.

21 JUDGE TUZMUKHAMEDOV: "Xiexie."

22 Ms. Salgado, I'd like to address this term "political

23 co-ordinator." I understand that this was the deduction of the

24 Trial Chamber. Based on the evidence that they had, they concluded --

25 they "assigned" this role to Mr. Sainovic. In your response brief, you

Page 257

1 gave an interpretation of that conclusion of the Trial Chamber by stating

2 that the term "political co-ordinator" was descriptive in nature. I have

3 a feeling that during your presentation right now you went a little bit

4 further than that, stating that this was a descriptive term. However, I

5 guess my question is: Assuming there is a finding that the term

6 "political co-ordinator" was not just a mere descriptive term, then how

7 this could affect Mr. Sainovic's criminal responsibility?

8 I have another question, but probably we should go step by step.

9 MS. MARTIN SALGADO: Thank you, Your Honour. I certainly did not

10 intend to depart in my submissions from our position in the brief, which

11 is that the term "political co-ordinator" is descriptive. And it is used

12 descriptively to, yes, give a label, so to speak to what, in our

13 submission, is the contribution that he made, which is the co-ordinating

14 and influencing the activities of the VJ and the MUP. And in our

15 position, the term "political co-ordinator" condenses that significance

16 essentially.

17 As to the second part of your question -- I'm sorry. I believe

18 it goes back to my first answer which is: What is important is that he

19 made a contribution to the common purpose and that that contribution was

20 significant. And we have described what that contribution is, which is

21 co-ordinating and influencing. And as a result, I don't think that a

22 finding on whether the term "political co-ordinator" is anything more

23 than a descriptive term would have any effect on his criminal

24 responsibility. And I hope I have understood Your Honours correctly.

25 JUDGE TUZMUKHAMEDOV: Yes, thank you. And the second one, by --

Page 258

1 in fact, by quoting the Trial Chamber when you stated that Mr. Sainovic

2 was the closest and most trusted associate of the late Mr. Milosevic, I

3 think you came very close to another description of relationship between

4 Mr. Sainovic and Mr. Milosevic. And the Trial Chamber stated that this

5 was a special relationship, an assumption which was denied this morning

6 by your friends across the aisle. But the Trial Chamber stated that this

7 special relationship resulted to -- resulted in Sainovic undertaking a

8 leading role during the Joint Command meetings. Could you elaborate on

9 the characteristics of that close and most trusted relationship or

10 special relationship - to use the terminology of the Trial Chamber? Was

11 there anything out of the ordinary in that relationship? And what

12 bearing the finding of the existence of that special relationship could

13 have on Mr. Sainovic's criminal responsibility?

14 MS. MARTIN SALGADO: Thank you, Your Honour. I'll begin with the

15 second part of your question so as not -- again, the importance of his

16 close relationship with Slobodan Milosevic is, in our view, two-fold. In

17 the first place it goes towards describing his contribution to the common

18 criminal purpose, and that is because, as I said, his contribution is

19 co-ordinating and influencing the VJ and the MUP. And one of the ways he

20 co-ordinates is by also acting as a liaison not just between the VJ and

21 the MUP, but between the VJ, MUP, and Milosevic so that the common

22 criminal purpose can be implemented through the forces in the ground but

23 in furtherance of the policy pursued by Belgrade. So in that sense, his

24 close relationship is -- evidences what his significant contribution is,

25 which is that part of liaising between Milosevic and the forces in the

Page 259

1 ground.

2 His close relationship also serves the role of showing the extent

3 to which he had authority, the authority to, as we say, influence the

4 activities of the VJ and the MUP in the ground. So it's also explanatory

5 of why we say he was in a position to do the things he did in

6 contribution to the common criminal purpose.

7 And I'm verifying whether I've answered all of your questions,

8 Your Honour.

9 And, Your Honour, if I could rely on the judgement in Volume II

10 in the section it devotes to his relationship with Milosevic for a more

11 fuller -- or for a fuller description of what that relation amounted to.

12 I hope this answers Your Honour's question.

13 JUDGE TUZMUKHAMEDOV: Thank you.

14 MS. MARTIN SALGADO: Thank you.

15 JUDGE LIU: Well, counsel, before you start I have to remind you

16 that you only have six minutes to finish your response.

17 MS. MONCHY: Good afternoon, Your Honours. I will try to meet

18 the challenge and I will just focus on responding strictly to your

19 questions relating to mens rea.

20 Your Honours, regarding the first -- the remaining part of your

21 tenth question which was just addressed by Ms. Martin Salgado, our

22 response is quite short and straightforward. The Trial Chamber did not

23 find that Sainovic had the shared intent for the JCE before the common

24 purpose came into existence. Rather, the Trial Chamber properly took

25 into account evidence from before, during, and after the commission of

Page 260

1 the crimes to find that Sainovic had the requisite intent at all times he

2 contributed to the JCE.

3 Turning now to your question number 11 relating to the relevance

4 of Sainovic's knowledge of crimes in 1998. Well, Your Honours, the

5 Trial Chamber reasonably relied upon Sainovic's knowledge that the use of

6 excessive and disproportionate force by FRY and Serbian forces led to

7 forcible displacements as one of the factors to infer Sainovic's

8 mens rea. This is because this knowledge was a clear warning to Sainovic

9 that the FRY and Serbian forces would behave in a similar way a few

10 months later and again cause massive forcible displacement. Even if the

11 crimes in 1998 were committed on a lower and less systematic scale than

12 during the NATO campaign, Sainovic was on notice of the continuing risk

13 of crimes by these forces. His knowledge was also relevant because

14 Sainovic could be confident that by using those same forces to carry out a

15 widespread and systematic campaign of terror and violence which involved

16 destruction of private property, intimidation, and violence against

17 Kosovo Albanians as in 1998, these forces would successfully achieve mass

18 displacements in 1999.

19 Finally, my third and last point on this issue, this is also

20 relevant to show the pattern of Sainovic's conduct. Sainovic knew that

21 the FRY and Serbian forces committed crimes in 1998, but he did nothing

22 to change it. And instead, he continued co-ordinating these forces and

23 supported their heavy-handed approach, and this is Volume III,

24 paragraph 463. And he behaved in the exact same way during the NATO

25 campaign.

Page 261

1 Turning to Your Honours' fourth question relating to the

2 indictment of the 27th of May, 1999. Your Honours, the Trial Chamber

3 reasonably took into account Sainovic's knowledge of this indictment to

4 infer his JCE intent and this is because this is an additional

5 confirmation that he had the intent. Despite Sainovic's knowledge of the

6 indictment, Sainovic did nothing to encourage the person in charge of the

7 physical perpetrators of a crime listed in the indictment to prosecute or

8 punish them. He did nothing, although he remained in his position as

9 deputy prime minister of the FRY for over a year and a half until the

10 federal government was changed. This is also an additional confirmation

11 that his statements in 1998 and 1999 to the effect that crimes should be

12 punished were "simply window dressing," and in fact Sainovic never

13 intended to deal with the crimes of the FRY and Serbian forces.

14 Turning now to your first question relating to JCE III. Our

15 response to the question is no, Your Honours. If you agree with the

16 Prosecution that the Trial Chamber applied a too-high mens rea standard

17 for JCE III, this will have no impact upon Sainovic's convictions for

18 murder and destruction of and damage to Kosovo Albanian religious

19 property. Indeed, since the Trial Chamber found that these crimes were

20 reasonably foreseeable to Sainovic under a higher probability standard than

21 the required standard, these crimes were clearly foreseeable to Sainovic

22 under the lower, correct, possibility standard. And we rely on our

23 response brief, paragraph 246 to 258 for detailed references to the

24 record.

25 To conclude, Your Honours, all Sainovic's grounds relating to

Page 262

1 mens rea should be dismissed, and unless Your Honours have any question,

2 this concludes our submissions for today. Thank you.

3 JUDGE LIU: Thank you. Your response is really short and

4 straightforward.

5 I'm saying that your response is really short and

6 straightforward.

7 Any reply from defendant.

8 [Appeals Chamber confers]

9 JUDGE LIU: Wait, Judge Pocar has a question. Judge Pocar has a

10 question.

11 JUDGE POCAR: Sorry. I agree with the Presiding Judge that your

12 answers were very short, actually, but I wanted to be very clear on one

13 point; it refers to the answer you gave. Is that your position that

14 knowledge of crimes committed in 1998 could be used as a circumstance to

15 show the mens rea for crimes committed in 1999? And that's one point and

16 I believe that's your position clearly. But is your position also the

17 knowledge of crime A committed in 1998 may be sufficient to establish

18 mens rea in 1999 for crime B? Because the question is whether the

19 mens rea for forcible transfer or deportation committed in 1999 could be

20 inferred from crimes other than deportation committed in 1998.

21 MS. MONCHY: Your Honour, the first --

22 JUDGE POCAR: If the knowledge of crimes committed in 1998 other

23 than deportation may be the basis for mens rea for deportation in 1999?

24 Or knowledge of the actual crime, the specific crime, is necessary. We

25 want to be clear about this point as to your position.

Page 263

1 MS. MONCHY: Yes, thank you, Your Honour. I think the short

2 response is yes. The reason is because in 1998 the use of excessive and

3 disproportionate force by the FRY and Serbian forces which encompassed a

4 number of crimes; I mean, you had burnings of houses, looting, violence

5 against civilians, including murder, these crimes led to the forcible

6 displacement of the Kosovo Albanian population in 1998. So this is

7 because the accused knows that if these forces would commit the same

8 crime it will further their goal to forcibly displace the Kosovo Albanians

9 in 1999. So that is the reason why other crimes than forcible

10 displacement were relevant to Sainovic's knowledge.

11 JUDGE POCAR: Okay. I note you said "to possibly displace" in

12 1999. Thank you.

13 MS. MONCHY: Sorry ...

14 JUDGE POCAR: That's fine. Thank you. Thank you for that.

15 JUDGE LIU: Yes, reply from the defendant.

16 MR. PETROVIC: [Interpretation] Thank you, Your Honour. I shall

17 on behalf of the Sainovic Defence attempt to respond to some of the

18 allegations you've heard today because there is no time for much

19 elaboration.

20 First of all, I would like to make a general comment to what

21 we've heard today from our colleagues from the Prosecution; namely, the

22 response to what our specific grounds of appeal stated in our appeal

23 brief and our arguments today. The response of the Prosecution to all of

24 that is mere reading of certain passages from the trial judgement. The

25 Prosecution explains this approach of theirs by the necessity to

Page 264

1 interpret the judgement in a holistic way, although even if read in that

2 way each of the findings in the judgement should be subject to further

3 analysis. What we are trying to say that in the judgement there is a

4 whole series of details which taken all together, in combination, lead us

5 to the conclusion that this judgement, as regards Mr. Sainovic, cannot

6 stand. One cannot hide behind the holistic approach and say: This is

7 the judgement, the details should not be analysed. On the contrary,

8 details must be analysed, and if we do that and if you accept our

9 arguments, you come to completely different conclusions than those stated

10 in the trial judgement.

11 Just a few details about what was said by our learned friends

12 from the Prosecution. Speaking of the evidence regarding the existence

13 of the joint criminal enterprise, it is said that there is a pattern of

14 events and that this pattern of events in itself is proof that the JCE

15 exists. My learned friend mentioned today the arming and disarming of

16 the population. I should like to recall that in the trial judgement the

17 Trial Chamber does not dispute the legality, the lawfulness, of arming

18 people. What they do contest is the lawfulness of arming based on ethnic

19 principles. Arming or disarming cannot be viewed in isolation from the

20 events; that is the view of the Defence. At the time when all this is

21 happening between the authorities of the FRY and Serbia on one hand and

22 the authorities of Albanians in Kosovo, there is a conflict, a

23 decade-long conflict. It cannot be expected of lawful authorities in a

24 situation where communications are blocked, roads are blocked, civilians

25 are being killed, there is deep mistrust between the Serb and the

Page 265

1 Albanian population, it cannot be expected of the authorities of

2 Yugoslavia and Serbia to arm members of a community who are in their

3 majority opposing that army and that police force. In a situation that

4 bears all the characteristics of armed insurgency in Kosovo, it would be

5 unreasonable to conclude or to claim that based on arming or disarming,

6 the conclusion can be made that this is one of the elements built into

7 the joint criminal enterprise.

8 My learned friend also recently mentioned the promotion of

9 Pavkovic and Ojdanic in the context of explaining the role of

10 Mr. Sainovic. I really don't see that anything in the case file could

11 link Mr. Sainovic with the promotions granted to Pavkovic and Ojdanic.

12 Within that pattern of conduct, also mentioned has been the bringing in

13 of additional forces of Yugoslavia and Serbia into Kosovo. That was

14 indicated as one of the proofs of violation of October Agreements and of

15 Serbia's preparation for war. What do we have in the case file? We have

16 evidence that in addition to a certain reinforcement, the increase in

17 numbers of forces present in Kosovo occurs in March 1999; that is to say

18 it is occurring when the NATO air strikes are already a certainty, that

19 things will happen that neither the authorities of Serbia or Yugoslavia

20 want.

21 We also see that NATO is increasing its presence in Macedonia.

22 Their numbers there are 2.000. At the relevant time, in March 1999, the

23 NATO force increases to 12.500. The KLA strength is also much greater.

24 The only logical reaction of the authorities of Yugoslavia and Serbia is

25 to increase their presence and strength in the territory where they are

Page 266

1 expecting the conflict to occur. That was logically done by the

2 Army of Yugoslavia and the Ministry of the Interior of Serbia and the

3 same would have been done by any other state if it had been in that

4 situation.

5 Let me say a few words about the claim of the Prosecution

6 concerning the pattern of conduct. The Trial Chamber notes also and

7 ascribes responsibility for movements of population exclusively to

8 Serbia. However, the Trial Chamber also notes that there are NATO

9 attacks. It notes the bombing of targets very close to populated areas.

10 It notes that there are reasons that could lead a reasonable trier of

11 fact to make a different conclusion than the one made by the

12 Trial Chamber. However, the Trial Chamber ascribes sole responsibility

13 for the movement of 700.000 people only to the forces of the FRY and

14 Serbia. If there had been any fighting, as there had been around

15 populated areas with the KLA, is that situation important? Should it

16 have been taken into account when deciding when and how these movements

17 of population occurred that the Trial Chamber assesses to have involved

18 at least 700.000 people? If there were other reasons - and the

19 Trial Chamber says there were - each one of them should have been taken

20 into account and weighed properly. So the response in this respect by

21 the Prosecution is inadequate on this issue in the view of this Defence.

22 We have various reports from witnesses and evidence from

23 witnesses as to how these population movements occurred. The

24 Trial Chamber relies solely on the testimony of Albanian witnesses. The

25 evidence that they give is identical. Our learned friend says today that

Page 267

1 this is because the practice was identical; however, the similarities in

2 witness testimony is simply impossible if evidence is truly given freely

3 and is credible. It is very symptomatic that the greatest number of

4 witnesses come from places where the Kosovo Liberation Army was very,

5 very active and all of these witnesses testified before the

6 Trial Chamber. And down to the last man they denied that in the area

7 from which they fled their homes there had been any serious presence of

8 the KLA or any serious clashes. They simply deny the KLA and the

9 conflict. Even the Trial Chamber finds, with good reason, this

10 irrationality and this inconsistency to indicate that there is something

11 wrong with these witnesses. This should have at least led to some doubt

12 and that doubt would have probably resulted in a different decision by

13 the Trial Chamber.

14 I would also like to refer to the issue of identity papers. The

15 removal of identity papers is also used as proof of pattern of conduct in

16 this case. One should say very briefly on this point that removing

17 identity papers from a person in itself is not very important. Personal

18 details of citizens existed in databases of secretariats of the interior

19 and with other state agencies of Serbia. One's right to citizenship is

20 not lost with the loss of identity papers. The registers of the

21 population which included Serbs and Albanians alike contained all this

22 information. We cannot view this issue in the same way because the loss

23 of identity papers does not lead to loss of citizenship, even if the

24 identity papers were taken away from somebody -- which dominated our

25 discussion today.

Page 268

1 The Prosecutor even when speaking about the Joint Command quotes

2 passages from the judgement, and it is our impression, with all due

3 respect, that they ignore proper argument. The main thing the

4 Prosecution still ignored today is the huge difference between year 1998

5 and year 1999. This difference is obvious. This difference is

6 highlighted even by the Trial Chamber. And that is the point, the main

7 thrust, of our appeal. What does the Trial Chamber do and what does the

8 Prosecution support in their arguments today? The Trial Chamber, if it

9 says in its judgement that the Joint Command in 1999 is just evoking

10 prior authority, body of a different nature, all this does not mean that

11 the Joint Command, if it existed in 1998 existed also in 1999 in the same

12 way. We have memories and the reminiscing about prior authority. On a

13 matter so important as the existence or nonexistence of an institution,

14 one cannot make a conclusion based on these things because there is no

15 evidence. What is invoked here today is the order from the

16 Pristina Corps in -- or rather, 16 orders of the Joint Command. And if

17 you here heard the Prosecution today, they also referred to 16 orders of

18 the Pristina Corps with good reason. In the context of these orders,

19 too, it is clear that the chains of command of the army and the MUP are

20 uninterrupted, intact. That is the basis for any proper conclusion as to

21 what exists or not exists in 1999. The 16 orders cannot serve as proof

22 of existence of the Joint Command. Those orders were made in the

23 Pristina Corps. These orders referred to units subordinated to the

24 Pristina Corps, and, quite simply, from their substance we do not see

25 either the necessity or the proof that there is a body, an organ, or an

Page 269

1 individual who in any way unifies, co-ordinates, harmonises, or

2 influences command functions.

3 Command and the method of co-ordination in 1999 is substantiated

4 even in the trial judgement. The Trial Chamber notes there was a

5 standard practice of the MUP and the Army of Yugoslavia before finalising

6 a plan or an activity involving them jointly; a meeting, a co-ordination

7 meeting is held between the army and the MUP where such co-ordination is

8 ensured. That is normal and that is natural in every situation where two

9 different structures co-operate. In that standard practice there is

10 nowhere either a need or evidence that a third party is needed to

11 arbitrate, especially not a third party who has no knowledge of these

12 matters, a third party who belongs to a political authority or other

13 body.

14 It is clear from the case file why these orders from 1999 have

15 the heading of Joint Command. We have heard testimony from witnesses in

16 this case that this heading designates activities that are jointly

17 carried out with the MUP. There is no mystification here. This is a

18 designation for an order that serves to show that this is a joint action,

19 a joint activity. This is the only explanation. There is no logical or

20 operational need for the involvement of any third party, especially a

21 third party who has nothing to do with police or army co-ordination or

22 has the necessary expertise, as Mr. Sainovic did not.

23 We have heard assertions today, again, that Mr. Sainovic was

24 playing a key part, that his was a central place. But what we haven't

25 heard is the answer. What is the substance of a central place? What

Page 270

1 does it mean? It is not enough to refer to a central place and then

2 invoke somebody's impressions about that. A central place must have

3 substance. What did Mr. Sainovic do? What did he omit to do? And, most

4 importantly, what in all that had an essential effect on events on the

5 ground, saying that somebody had a central place in itself means nothing.

6 It can be -- it cannot be a basis for any conclusions about Sainovic's

7 position or his role.

8 A good example of this is something that my learned friends

9 mentioned today, a meeting of 16 June. A witness testifies that his

10 impression was that he was respected and listened to. It is quite normal

11 that a deputy prime minister is respected. Wherever he comes in any

12 country in the world, a deputy prime minister would be met with respect.

13 But what if the witness is wrong in his impressions and what is the legal

14 meaning of a witness's impression? Does it have a meaning?

15 We heard what our learned friends had to say, that he interfered

16 in everything, the KVM, the MUP, the Army of Yugoslavia. We heard of a

17 conglomerate of activities, and, with all due respect, that is not

18 discerned even in the trial judgement. Also, trains, train schedules,

19 and so on. However, in the text of the trial judgement we cannot see

20 anything that would be linked to what we heard today. The strong will of

21 Slobodan Milosevic and Nikola Sainovic, agent. What does that mean,

22 strong will of Slobodan Milosevic? When in many places in this judgement

23 there is a clear indication that chains of command are functioning, that

24 Milosevic -- if that is correct and there are many reasons that show that

25 this is not the case but that Milosevic can appoint, dismiss anyone, what

Page 271

1 does this strong will mean and what does it -- what purpose does it

2 serve? And what about agent Sainovic on the ground? What is the point

3 of that? And this time, the only time that matters after the 24th of

4 March, Milosevic is the supreme commander and he is the man who has the

5 constitutional and legal right to command and control. He does not need

6 a relay. He does not need a mediator. He has the necessary channels,

7 military, police, of course in a specific context, throughout the fact

8 that the police is within one of the federal units. And if we take into

9 account the needs of national defence as such.

10 Also there is the question of co-ordination, co-ordination as my

11 learned friends said, he actually wished to present it as a conspiracy or

12 something verging on conspiracy. Our learned friends for the Prosecution

13 disregard the fact that co-ordination between different structures is

14 something that is a legal and constitutional obligation on the part of

15 different organs of a country and it was also part of police and military

16 practice. A policeman and a soldier do not need a third party to explain

17 the importance of co-ordinator. They know that full well. They know

18 that joint co-ordination can only be materialised through co-ordination.

19 There is nothing mystical about this. There is nothing incredible about

20 this. This is only natural. This is something that anyone who is

21 involved in police work or military work knows full well.

22 Also there is a reference to the question of Milosevic, and now

23 the Defence says that there is no evidence to the effect that anything

24 that existed in 1998 or 1999 on the ground or in communication between

25 Kosovo and Belgrade could have prevented Milosevic from attaining his

Page 272

1 role as such in 1999. There are no problems in communication. There is

2 clear communication. So he simply does not need Sainovic as an

3 intermediary. All the chains of command, all the chains of

4 communication - this is even established by the Trial Chamber

5 itself - are intact.

6 I would particularly like to note the question of closeness

7 between Sainovic and Milosevic. This is one of the circumstances that

8 has not been fully elucidated. Relations between Sainovic and Milosevic,

9 the content of such a relationship is something that is unknown. There

10 are two or three meetings as a matter of protocol. There is nothing else

11 about any other kind of communication. One can only guess, but guessing

12 or guess-work should not be a basis for any kind of decision.

13 This one meeting or two meetings that might have happened, I mean

14 there's no proof of the content of these meetings and, again, speculation

15 cannot be a basis for saying anything about that. The way in which this

16 relationship is explained would necessitate daily intensive

17 communication, but there is simply no proof of any such thing. Sainovic,

18 the deputy federal prime minister at the time, dismissed from the

19 position of vice-president of the SPS, Sainovic marginalised in many

20 situations that could be of relevance for the Chamber. All of that is in

21 contrast to Milutinovic and that has been sufficiently elaborated upon

22 today.

23 I would also like to refer to the meeting held on the

24 1st of June, 1999. Again, we heard today that Sainovic was doing

25 something that borders on the incredible. He is conveying the content of

Page 273

1 an agreement that does not exist.

2 Milosevic-Ahtisaari-Cernomirdin Agreement is an agreement that was

3 concluded only four days later. The negotiations were under way, and,

4 quite simply, something like that is impossible. What is an important

5 question, a very important question, is the question of these channels of

6 communication. The Prosecutor and, unfortunately, the Trial Chamber

7 understand the evidence in this case as follows: Milosevic does not have

8 any other channels of communication and that Sainovic is the only way in

9 which he can reach anyone in Kosovo and the only way in which he can

10 influence events in Kosovo. This really borders on the incredible.

11 Finally, a few moments ago my learned friend raised a question,

12 or rather, tried to provide a response concerning the issuing of the

13 indictment after the things that happened, those that are mentioned in

14 that indictment, that is. And she says that Sainovic could have punished

15 the perpetrators of crimes on that basis. There is no evidence in this

16 case that Sainovic had any kind of authority that would include the

17 punishment of perpetrators of crimes. That is strictly defined in terms

18 of the organs involved, the authority of these organs, in prosecuting the

19 perpetrators of crimes including war crimes and there is no mention of

20 Sainovic in that context.

21 Thank you, Your Honours, I would like to conclude our response in

22 this way to what we heard from the Prosecution today. Thank you.

23 JUDGE LIU: Thank you very much.

24 Well, that concludes hearings for today. We adjourn these

25 proceedings until tomorrow morning at 9.30 a.m.