1 Monday, 11 March 2013
2 [Appeals Hearing]
3 [Open session]
4 [The appellants entered court]
5 --- Upon commencing at 9.30 a.m.
6 JUDGE LIU: Good morning, everyone.
7 Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. This is case number
9 IT-05-87-A, the Prosecutor versus Nikola Sainovic, Nebojsa Pavkovic,
10 Vladimir Lazarevic, and Sreten Lukic.
11 JUDGE LIU: Thank you very much.
12 Before we start, can all the parties hear the proceedings in a
13 language that they understand.
14 Mr. Sainovic?
15 THE APPELLANT SAINOVIC: [Interpretation] Yes, Your Honour, I can.
16 Thank you.
17 JUDGE LIU: Mr. Pavkovic?
18 THE APPELLANT PAVKOVIC: [Interpretation] Yes, Your Honour, I can.
19 JUDGE LIU: Mr. Lazarevic?
20 THE APPELLANT LAZAREVIC: [Interpretation] I can, Mr. President.
21 JUDGE LIU: Thank you.
22 Mr. Lukic?
23 THE APPELLANT LUKIC: [Interpretation] Yes, Your Honour.
24 JUDGE LIU: Thank you very much. I'm not going to ask the same
25 question every day, but if you have any problem in following the
1 proceedings, please do not hesitate to let me know.
2 Now let me ask for the appears of the parties. First for the
4 MR. KREMER: Good morning, Mr. President, Your Honours.
5 Peter Kremer on behalf of the Prosecution, joining me this morning and
6 our team will change throughout the week, is Ms. Elena Martin Salgado and
7 Virginie Monchy. And we're assisted by our case manager, Colin Nawrot.
8 JUDGE LIU: Thank you.
9 And now the Defence counsel, please.
10 MR. FILA: [Interpretation] Good morning, Mr. President. I'm
11 Toma Fila, and together with Vladimir Petrovic I represent the Defence of
12 Nikola Sainovic. Thank you.
13 MR. ACKERMAN: Good morning, Your Honours. I'm John Ackerman.
14 I'm here with my co-counsel, Aleksander Aleksic, and legal assistant,
15 Cathy MacDaid, and we represent General Pavkovic.
16 MR. BAKRAC: [Interpretation] Good morning, Your Honours. For the
17 Defence of General Lazarevic, Mihajlo Bakrac and Djuro Cepic.
18 MR. LUKIC: Good morning, Your Honours. Branko Lukic and
19 Dragan Ivetic for Mr. Sreten Lukic.
20 JUDGE LIU: Thank you very much, counsels.
21 The Prosecution and the Defence have lodged appeals against the
22 judgement rendered on the 26th February 2009 by Trial Chamber III of the
23 Tribunal. According to the order issued on the 18th January 2013 and the
24 31st January 2013, the Appeals Chamber will presently hear the appeals in
25 this case. This case concerns the criminal responsibility for
1 Mr. Sainovic, Mr. Pavkovic, Mr. Lazarevic, and Mr. Lukic for the forcible
2 displacement of the Albanian population in Kosovo between March and
3 June 1999. The defendants were charged with deportation, other inhumane
4 acts, forcible transfer, murder and the persecution through murder,
5 sexual assault, and the destruction of cultural property as crimes
6 against humanity and murder as a violation of laws or customs of war
7 under Article 7(1) and Article 7(3) of the Tribunal's Statute.
8 The Trial Chamber found that during the indictment period a joint
9 criminal enterprise existed. The common purpose of it was to ensure the
10 continued control by the former Republic of Yugoslavia and the Serbian
11 authorities over Kosovo, and that this was to be achieved by criminal
12 means. The Trial Chamber determined that through a widespread and
13 systematic campaign of terror and violence, the Kosovo Albanian
14 population was to be forcibly displaced, both within and without Kosovo.
15 The Trial Chamber further concluded that while the crimes of deportation
16 and forcible transfer were within the ambit of the common purpose, the
17 crimes of murder, persecution through murder, sexual assault, and the
18 destruction of cultural property fell outside the common purpose.
19 The Trial Chamber found that Mr. Sainovic, the former
20 prime minister of Serbia and deputy prime minister of the
21 Federal Republic of Yugoslavia, possessed the intent to forcibly displace
22 the Kosovo Albanian population and contributed significantly to the
23 joint criminal enterprise.
24 As the members of the joint criminal enterprise used VJ and MUP
25 forces in furtherance of their common purpose, the crimes committed by
1 these forces in the course of implementing the common purpose were found
2 to be imputable to Mr. Sainovic. With regard to crimes falling outside
3 the common purpose, the Trial Chamber held that the murder of the
4 Kosovo Albanians and the damage and the destruction of the religious
5 property were reasonably foreseeable to Mr. Sainovic while the occurrence
6 of sexual assault was not. The Trial Chamber accordingly found
7 Mr. Sainovic guilty of deportation, other inhumane acts, forcible
8 transfer, murder, and the persecution as crimes against humanity and
9 murder as a violation of the laws or customs of war through his
10 participation in the joint criminal enterprise. Mr. Sainovic was
11 sentenced to a single term of 22 years of imprisonment.
12 Mr. Sainovic presents seven grounds of appeal which focus on four
13 main challenges to the trial judgement. First, he contends that the
14 Trial Chamber violated his right to a fair trial by convicting him on the
15 basis of material facts that were not pleaded in the indictment. Second,
16 he insists that the Trial Chamber erred in its evaluation of the
17 evidence. Third, he challenges the Trial Chamber's conclusion regarding
18 the existence of the joint criminal enterprise in general and his
19 participation therein. Finally, he challenged the sentence imposed by
20 the Trial Chamber.
21 Turning to Mr. Pavkovic, Mr. Pavkovic served as a VJ commander of
22 the 3rd Army from the 13th January 1999 until early 2000 when he became
23 chief of the VJ General Staff. The Trial Chamber found that he shared
24 the intent to forcibly displace the Kosovo Albanian population and that
25 he contributed significantly to the joint criminal enterprise. As the
1 the members of the joint criminal enterprise used VJ and MUP forces in
2 furtherance of their common purpose, the crimes committed by these forces
3 in the course of implementing the common purpose were found to be
4 imputable to Mr. Pavkovic. The Trial Chamber further found that the
5 crimes falling outside the common purpose, namely, murder of the
6 Kosovo Albanians, sexual assault, and the damage and the destruction to
7 religious property were reasonably foreseeable to Mr. Pavkovic. The
8 Trial Chamber accordingly convicted Mr. Pavkovic for deportation, other
9 inhumane acts, forcible transfer, murder, and the persecution as crimes
10 against humanity and murder as a violation of the laws or customs of war.
11 Mr. Pavkovic was sentenced to a single term of 22 years of imprisonment.
12 Mr. Pavkovic sets out 12 grounds of appeal challenging the
13 Trial Chamber on five main points. First, he claims that Trial Chamber
14 violated his right to a fair trial. Second, he asserts that the
15 Trial Chamber erred in its evaluation of the evidence. Third,
16 Mr. Pavkovic challenges the Trial Chamber's finding concerning his
17 individual criminal responsibility. Fourth, he submits that the
18 Trial Chamber erred in law in relation to the chapeau mens rea
19 requirement of crimes against humanity. Finally, he argues that the
20 Trial Chamber erred in its evaluation of the factors relevant to his
22 Turning to Mr. Lazarevic, Mr. Lazarevic was appointed VJ
23 commander of the Pristina Corps on 25th December 1998 and held this
24 position until 28th December 1999, when he was appointed Chief of Staff
25 of the 3rd Army. The Trial Chamber held Mr. Lazarevic responsible for
1 aiding and abetting instances of deportation and forcible transfer,
2 wherein the VJ was involved. Accordingly, the Trial Chamber convicted
3 Mr. Lazarevic of aiding and abetting deportation and other inhumane acts,
4 forcible transfer, and sentenced him to a single term of 15 years of
6 Mr. Lazarevic advances four grounds of appeal. First, he
7 challenges the Trial Chamber's finding concerning certain underlying
8 crimes. Second, he submits that the Trial Chamber erred in its
9 evaluation of the evidence. Third, he claims that the Trial Chamber
10 erred in law and fact when assessing his responsibility for aiding and
11 abetting forcible transfer and deportation. Finally, he asserts that the
12 Trial Chamber failed to assess the relevant circumstances and imposed a
13 sentence that was inappropriately severe.
14 Turning to Mr. Lukic, Mr. Lukic was head of the MUP staff in
15 Pristina from middle 1998, and upon the completion of his assignment in
16 Kosovo he was appointed head of the border police administration of the
17 Serbian Ministry of Interior. The Trial Chamber found Mr. Lukic shared
18 the intent to forcibly displace the Kosovo Albanian population and that
19 he made a significant contribution to the joint criminal enterprise. As
20 the members of the joint criminal enterprise used VJ and MUP forces in
21 furtherance of their common purpose, the crimes committed by these forces
22 in the course of implementing the common purpose were found to be
23 imputable to Mr. Lukic.
24 With regard to the crimes falling outside the common purpose, the
25 Trial Chamber held that the murder of Kosovo Albanians and the damage and
1 the destruction of the religious property were reasonably foreseeable to
2 Mr. Lukic, whereas the occurrence of sexual assaults was not. The
3 Trial Chamber accordingly found Mr. Lukic guilty of deportation, other
4 inhumane acts, forcible transfer, murder, and persecution as crimes
5 against humanity and murder as a violation of the laws or customs of war.
6 Mr. Lukic was sentenced to a single term of 22 years of imprisonment.
7 Mr. Lukic sets out 37 grounds of appeal, challenging the trial
8 judgement on four main points. First, he asserts that the Trial Chamber
9 violated his right to a fair trial on various occasions. Second, he
10 challenges a number of findings concerning underlying crimes committed in
11 various municipalities. Third, he contends that the Trial Chamber erred
12 in assessing the existence of a joint criminal enterprise and his
13 participation therein. Finally, he claims that the Trial Chamber erred
14 in imposing an excessive and disproportionate sentence.
15 The Prosecution presents six grounds of appeal against the trial
16 judgement. First, it requests that the Appeals Chamber convict
17 Mr. Sainovic, Mr. Pavkovic, Mr. Lazarevic, and Mr. Lukic for persecution
18 as a crime against humanity through forcible transfer and the
19 deportations. Second, it requests that the Appeals Chamber convict
20 Mr. Lazarevic for aiding and abetting murder and persecution as a crime
21 against humanity and murder as a violation of the laws or customs of war
22 for the killing at Korenica, Meja and Dubrava. Third, the Prosecution
23 submits that Mr. Sainovic and Mr. Lukic should be convicted for
24 persecution as a crime against humanity for the proven instances of
25 sexual assaults in Beleg and Cirez. Fourth, the Prosecution requests
1 that the Appeals Chamber convict Mr. Sainovic, Mr. Pavkovic, and Mr.
2 Lukic for persecution as a crime against humanity for the additional
3 instances of sexual assaults in Pristina. Fifth, the Prosecution
4 requests that the Appeals Chamber convict Mr. Lazarevic for aiding and
5 abetting deportation and other inhumane acts, forcible transfer, as
6 crimes against humanity with respect to certain locations.
7 The Prosecution submits that the sentences should be increased in
8 the event that these convictions were entered. In any event, the
9 Prosecution submits that the sentences imposed by the Trial Chamber were
10 too low and should be increased.
11 Throughout this hearing, counsel may argue the grounds of appeal
12 in any order it considers suitable for their presentations; however, I
13 would urge counsel not to repeat verbatim or to summarise extensively the
14 arguments presented in their briefs. The Appeals Chamber is familiar
15 with the briefs. Furthermore, the parties are obliged to provide the
16 precise reference to materials supporting their oral arguments.
17 The appeal process is not a trial de novo and the parties should
18 refrain from repeating their case as presented at trial. Arguments must
19 be limited to the alleged error of law which invalidate the trial
20 judgement or alleged error of fact which occasion a miscarriage of
22 In addition to the questions raised by the Appeals Chamber in the
23 order issued on the 20th February 2013, Judges may ask a question at any
24 time in the course of parties' submissions or at the end of the hearings.
25 In view of the jurisprudential development in the recent Perisic appeal
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
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
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
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
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
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
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
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
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
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
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
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.
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,
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
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
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
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
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?
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
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.
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
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.
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
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
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
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
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
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.
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,
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
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
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
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
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
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
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.
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
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
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
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
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,
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
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
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
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
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
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
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
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,
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
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
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
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
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.
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.
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
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
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
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
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
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
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.
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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,
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.
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
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
1 actions of the MUP in Kosovo, Volume I, paragraph 1110 and Volume III,
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
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
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.
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
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
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
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.
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
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
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
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
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
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
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
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
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
24 And similarly, in considering Martic's participation in the
25 joint criminal enterprise, the Trial Chamber found that Martic's contacts
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
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
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
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.
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
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.
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
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
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,
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
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
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
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 --
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
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
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
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
25 To conclude, Your Honours, all Sainovic's grounds relating to
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
5 I'm saying that your response is really short and
7 Any reply from defendant.
8 [Appeals Chamber confers]
9 JUDGE LIU: Wait, Judge Pocar has a question. Judge Pocar has a
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.
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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.
1 --- Whereupon the hearing adjourned at 4.00 p.m.,
2 to be reconvened on Tuesday, the 12th day of
3 March, 2013, at 9.30 a.m.