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1 Toma Fila and, together with Vladimir Petrovic, we are Defence counsel

2 for Nikola Sainovic.

3 JUDGE LIU: Thank you.

4 MR. ACKERMAN: Good morning, Your Honours. I'm John Ackerman.

5 I'm here with Aleksander Aleksic, my co-counsel, and Cathy MacDaid,

6 legal assistant.

7 JUDGE LIU: Thank you.

8 MR. BAKRAC: [Interpretation] Good morning, Your Honours. I am

9 Mihajlo Bakrac and, together with Mr. Djuro Cepic, I am Defence counsel

10 for General Lazarevic.

11 JUDGE LIU: Thank you.

12 MR. LUKIC: Good morning, Your Honours. Branko Lukic and

13 Dan Ivetic for Mr. Sreten Lukic.

14 JUDGE LIU: Thank you.

15 Now we would like to hear the submissions from the counsel for

16 Mr. Pavkovic.

17 Yes, Mr. Ackerman.

18 MR. ACKERMAN: Thank you, Your Honour. Good morning,

19 Your Honours.

20 I want to begin this morning by referring to the writings of

21 Justice Robert Jackson, which I did mention in my brief, in the Journal

22 of International Law on the 13th of April, 1945, where he warned of the

23 risk in war crimes trials:

24 "... that the decision that most of the world thinks should be

25 made may not be justified as a judicial finding, even if perfectly

Page 277

1 justified as a political policy ..."

2 He concluded that:

3 "... our profession should see that it is understood that

4 any trials to which lawyers" --

5 JUDGE LIU: Well, well, Mr. Ackerman, I've been informed there's

6 some technical problems with computer. I don't know --

7 MR. ACKERMAN: Yeah, we don't have a transcript on the computer

8 here.

9 JUDGE LIU: I see. Shall we wait for the technicians to come to

10 the room or you may go along?

11 MR. ACKERMAN: Well, the transcript is on this one but it's not

12 showing up in the computer part, so I don't know.

13 JUDGE LIU: So you mean that we could proceed?

14 MR. ACKERMAN: It's not bothering me.

15 JUDGE LIU: Okay.

16 MR. ACKERMAN: If it's a problem for Your Honours, then we need

17 to wait.

18 JUDGE LIU: Well, we have no problem, so we'll proceed.

19 MR. ACKERMAN: Thank you, Your Honour.

20 JUDGE LIU: Thank you.

21 MR. ACKERMAN: Justice Jackson concluded that:

22 "... our profession should see that it is understood that any

23 trials to which lawyers worthy of their calling lend themselves will be

24 trials in fact, not merely trials in name, to ratify a predetermined

25 result."

Page 278

1 Our case, Your Honours, is about an outstanding military man,

2 General Pavkovic, a career military man. In every evaluation he received

3 in his career he got the highest possible marks. From 26 April 1998 to

4 the start of the NATO campaign, there are 13 exhibits in this court case

5 where General Pavkovic ordered adherence to international law or gave

6 other clear indications of his determination that international law be

7 honoured by those under his command. During the NATO campaign the record

8 contains 25 similar exhibits, some very explicit in their wording. See,

9 for instance, 4D411, 4D372, 4D189, and 4D158. He issued an average of

10 one order or communication every three days during this campaign. It's

11 difficult to argue that he did not take sufficient steps to prevent and

12 punish crimes. I'd be surprised if any high-level commander in any

13 recent world conflict has issued more such orders in an equivalent time

14 than General Pavkovic did in this one. His arrest, his confinement, his

15 conviction has been an enormous miscarriage of justice and I suggest

16 politically motivated. This Chamber must correct this injustice.

17 I think it may be helpful to begin with a comment about the

18 Prosecution's theory of this case. Significant numbers of Kosovo

19 residents left Kosovo during the NATO bombing. These included

20 representatives of all ethnicities, including Serbs. This case really

21 turned on the reason why Kosovo Albanians left Kosovo. Did they go out

22 of fear of the fighting and the NATO bombing? Or were they forcefully

23 expelled? The Prosecution theory is that they left because of the

24 existence of a plan by the Federal Republic of Yugoslavia leadership to

25 forcibly expel a sufficient number of Kosovo Albanians to maintain

Page 279

1 Serbian control of the province. We said in our brief filed in

2 September 2009 that 11 years had elapsed since those events in Kosovo and

3 that during all those years not one document, not one witness has been

4 found to provide any direct evidence of the existence of such a plan.

5 It's now 14 and a half years with no such evidence surfacing. There

6 simply could be no stronger evidence that the Prosecution theory is

7 untrue and this failure after so much effort and so much time to find

8 even one bit of direct evidence to support the theory. There's evidence

9 that many left. There's evidence that some were forced to leave. But

10 there's no evidence that these realities resulted from a still

11 undiscovered plan to expel a sufficient number to maintain Serbian

12 control of the province.

13 On its face, the alleged plan defies logic. The world was

14 watching. The UN Security Council had issued two Resolutions in 1998

15 regarding the events in Kosovo. International monitors were there after

16 October 1998 when this plan was alleged to have been conceived. For this

17 alleged plan to be real, one would need to suspend belief and conclude

18 that a group of educated, intelligent persons, that being the FRY

19 leadership, could have believed that they could have expelled thousands

20 and thousands of Kosovo Albanians and then succeed on the international

21 stage with an argument that these persons had never lived in Kosovo, that

22 they were falsely claiming citizenship, that there had always been a

23 Serbian majority living there. Not only was this theory not proved

24 beyond a reasonable doubt; it was a theory that could not have been

25 proved beyond a reasonable doubt. It was preposterous on its face, and

Page 280

1 yet it's the theory upon which this Trial Chamber based its conviction of

2 General Pavkovic of joint criminal enterprise.

3 Yesterday we heard the Prosecution say that the expulsions were

4 done under the cover of NATO bombing. That sounds good, but then when

5 you analyse it, what is "under the cover of NATO bombing"? That's

6 probably the worst time possible because you've got NATO aircraft in the

7 air overhead all the time, many of them surveillance aircraft, so they're

8 seeing everything that's going on down there on the ground. They're

9 bombing everything that's going on down there on the ground. We should

10 have videos from NATO, from those aircraft, of people being expelled

11 across the border, but there were none in this case. And "under the

12 cover of NATO bombing" just doesn't make any sense either.

13 I've suggested to you in my reference to the writings of

14 Judge Jackson that this Trial Chamber approached the decision in this

15 case with a result in mind but lacking evidence to support it. I don't

16 make this charge lightly. I believe we can show you that it is, indeed,

17 the case. We do not know how or why the failings that we're about to

18 bring to your attention could have happened. It's not our place to try

19 to make that determination. It's sufficient that we make you aware of

20 them. I do know that the body of evidence in this case is enormous. We

21 all worked under intense time pressures in this case, and since the trial

22 we've actually discovered several exhibits we simply did not see before.

23 The same time pressure could have caused the Trial Chamber to overlook

24 some exhibits also. What I'm going to tell you about are numerous

25 instances where the Trial Chamber in its judgement arrived at conclusions

Page 281

1 very damaging to General Pavkovic and essential to their conclusions

2 which are not supported in the evidence cited in the footnotes attached

3 to the conclusions. On their own without more, these make this judgement

4 unsafe and not one that should be allowed to stand as a historical

5 account of what happened in Kosovo and the role of General Pavkovic

6 therein. It is not an honest judgement. It must be corrected, whether

7 that is with a remand for a new trial or a reversal ordering acquittal of

8 General Pavkovic of all charges.

9 I want to refer very briefly to the Tribunal jurisprudence

10 regarding what a reasoned judgement is. It was quoted in the recent

11 Perisic decision at paragraph 92 from the Limaj Appeals Chamber and said:

12 "The Appeals Chamber ... recalls that:

13 "A Trial Chamber need not refer to the testimony of every witness

14 or every piece of evidence on the trial record, 'as long as there is no

15 indication that the Trial Chamber completely disregarded any particular

16 piece of evidence.' Such disregard is shown 'when evidence which is

17 clearly relevant to the findings is not addressed by the Trial Chamber's

18 reasoning.'"

19 [Defence counsel confer]

20 MR. ACKERMAN: I'm told that I have to speak slower, so I'll try

21 to do that.

22 The Prosecution's response brief to our main brief came as a

23 surprise to me because in the 46 years that I've been working in criminal

24 law, it was the first time that I'd seen a brief that had the footnotes

25 refer to paragraphs of the judgement rather than the evidence in the

Page 282

1 case. I've always thought it was our obligation when communicating with

2 a Court like this to refer to the evidence because the findings of the

3 Trial Chamber are not evidence; they're simply findings that are supposed

4 to be based on evidence. And then it happened again yesterday right here

5 in court when the Prosecutor simply referred you to paragraphs of the

6 judgement, not the underlying evidence that would support those

7 paragraphs. And I can give you a couple of examples very quickly. In

8 paragraph 91 of their response they talk about the Drewienkiewicz press

9 release. We said it was based on information from the KLA. The OTP said

10 in their brief that it was not, that it was based on what he saw, not

11 what he heard. The press release which was not a press release was based

12 on events in 1999, and the reference made by the OTP in their brief was

13 to his statements about what he saw in 1998, not what he saw in 1999.

14 I want to start with Volume I of the judgement, paragraph 1086.

15 On 1 August of 1998, Pavkovic sent a request to the 3rd Army forward

16 command post for authority to implement the third stage of the plan for

17 combatting terrorism. That's P1419 of 1 August 1998. On the same day,

18 Samardzic, his commander, ordered that the request be put on hold until

19 his preliminary approval on 2 August and the president's approval on

20 3 August. The plan was not rejected; it was just delayed for about

21 48 hours. That's 4D125 of 1 August. On 2 August, Pavkovic directed

22 Pristina Corps units toward the three main points involved, Drenica,

23 Jablanica, and Smonica. And that's found at P1468, page 36,

24 Joint Command notes. This is the activity, this -- mentioned by Pavkovic

25 in the Joint Command, that the Trial Chamber concluded violated the

Page 283

1 Samardzic order. The Trial Chamber called it insubordination. Volume I,

2 paragraph 1086. And then cited a document in support that was not even

3 admitted into evidence, 4D458. However, two days earlier, on the

4 31st of July, Pavkovic was sent an order from the 3rd Army forward

5 command post, General Simic, to use some of the Pristina Corps troops "to

6 rout and destroy terrorist forces in the Smonica village sector,

7 establishing full control of the sector, and ensuring safe use of the

8 Djakovica-Batusa road." He was asked to brief Simic on specific plans to

9 carry out this order at 1300 hours on 1 August at the forward command

10 post. That is Exhibit 4D378, not cited by the Trial Chamber.

11 The meeting apparently took place because General Simic in a

12 3rd Army combat report for 2 August 1998 reported that:

13 "At 0500 hours on 2 August, the implementation started of our

14 forces' planned activities in the Smonica and Jablanica villages

15 sectors."

16 This is from Exhibit 4DA3 of 2 August 1998 and is the very

17 activity that Pavkovic reported in the Joint Command meeting on 2 August.

18 The reference to Pavkovic's report to the Joint Command on 2 August is

19 not a violation of a Samardzic order, but a report regarding the Simic

20 order of 31 July. The Trial Chamber could not make this connection

21 completely because Exhibit 4DA3 only became available after the judgement

22 and was admitted by this Tribunal. This is a trial court error that is

23 partly understandable.

24 Another one is found Volume III, paragraph 779, footnote 1982.

25 Our brief subground 1(C). The Prosecution's case against Pavkovic

Page 284

1 included a charge that he was involved in 1998 in the arming of the

2 non-Albanian population and disarming the Kosovo Albanian population. We

3 heard a lot about that yesterday. That finding was made by the

4 Trial Chamber in agreement with the theory of the Prosecution. Clearly

5 this finding was focused on arming of the civilian population since

6 arming of military population is what military organisations do.

7 The finding was based or the testimony was based on Exhibit P1415

8 of 26 June 1998. It's clear from the preamble that this was an order

9 that came down from Samardzic to Pavkovic, ordering him to carry out its

10 terms. And he was simply implementing this as ordered by his commander.

11 It's also clear that those to be armed are "military conscripts," not

12 non-Albanian civilians. The Trial Chamber's footnote cites Exhibit P1011

13 at page 58, which is a 23 July communication from Pavkovic to the

14 collegium of 3rd Army commanders. He briefly mentions the arming of the

15 population, but does not indicate any involvement himself or show any

16 enthusiasm for it. He just says:

17 "Despite the arming of the population, that factor in the system

18 against terrorist struggle has not been fully included."

19 The Trial Chamber then cites his statement to the Prosecution,

20 P949. He was asked about the arming of the civilian population and he

21 simply says that:

22 "Albanians and Serbs were already armed 10 to 15 years ago ..."

23 Nothing about his having anything to do with this arming

24 situation.

25 And that's all the evidence that's cited to support their

Page 285

1 conclusion, that Pavkovic was involved in the process of arming the

2 non-Albanian population. Thus, in the evidence cited by the Chamber,

3 there is no support for their conclusion and certainly no support for

4 their conclusion in this paragraph that:

5 "His enthusiasm for and involvement in these processes supports

6 the Prosecution contention that Pavkovic acted in concert with members of

7 the joint criminal enterprise to further the common purpose of

8 maintaining control over Kosovo through various criminal means."

9 Nothing in the evidence referred to by the Trial Chamber in

10 footnote 1982 would suggest enthusiasm. They use that alleged enthusiasm

11 from June and July of 1998 to conclude that it shows his acting in

12 concert with members of the joint criminal enterprise, which was at least

13 three months away from even being created according to the Prosecution's

14 indictment.

15 In Volume III, paragraph 667, footnote 1623, the Chamber

16 concludes that:

17 "Pavkovic's support and leadership of the process of arming the

18 armed non-Albanian population is also demonstrated in discussions of the

19 Joint Command on the issue throughout 1998."

20 And that's just not so. You can go to every page of P1468, the

21 Joint Command notes that are cited by the Trial Chamber, and you see no

22 indication of Pavkovic's support and leadership for the process of

23 arming. It's mentioned on occasion by other persons, he's present there,

24 but he says not a word. The clear purpose to the Trial Chamber

25 conclusions regarding the arming process was to provide support for the

Page 286

1 proposition that it was this arming and Pavkovic's part in it and

2 enthusiastic support for it that contributed to the goals of the joint

3 criminal enterprise once the war started on 24 March 1999. In other

4 words, the armed non-Albanian civilians supported the plan and played an

5 important role in assisting the VJ and Pavkovic in its implementation.

6 And we'll see that the TC attempts to support this claim but fails to do

7 so. And I think in that view it's interesting to point out some

8 testimony by Dimitrijevic who the Trial Chamber thought was a good

9 witness. He said:

10 "We didn't have any cases where civilians misused the weapons

11 they'd been issued with. In other words, I'm talking about them using

12 weapons for any other purpose. It simply served to protect those people

13 against any terrorist acts. That was the purpose of these weapons."

14 That's transcript 26635.

15 I go now to Volume III, paragraph 490, footnote 1064 --

16 THE INTERPRETER: The interpreters kindly ask counsel to slow

17 down. Thank you.

18 MR. ACKERMAN: Thank you.

19 In this paragraph the Trial Chamber concludes:

20 "Although the armed non-Albanian population did not form part of

21 the VJ, the VJ nonetheless was involved in arming and organising this

22 entity and ordered its engagement during joint operations with the MUP in

23 1999."

24 In footnote 1064, the Chamber first cites P2086 of 1 July 1998.

25 There's nothing in this document that supports VJ involvement in arming,

Page 287

1 organising, or ordering engagement. TC cites P1114, again nothing in

2 this document supports their conclusion of arming and assisting. They

3 cite the testimony of Pesic at page T 7316. It has nothing to do with

4 the Trial Chamber conclusion. They cite the statement of Nike Peraj,

5 P2253 at paragraph 15. It does not support the conclusion in any way.

6 Finally the Trial Chamber cites 3D1087, a document issued on

7 8 April 1999, and again there's absolutely no support.

8 If the Trial Chamber concern about this subject was merited, then

9 one would have expected to see reports of armed non-Albanians expelling,

10 slaughtering, committing crimes against Kosovo Albanians in large

11 numbers. Such reports simply do not exist.

12 Volume III, paragraph 775, footnote 1971, deals with the issue of

13 intent. In paragraph 775, the Trial Chamber talked about how the

14 information in Pavkovic's possession regarding the commission of crimes

15 by VJ subordinates and MUP members and his continuing ordering of joint

16 operations was evidence of his intent that such crimes occur and, by

17 extension, his attempt to participate in the alleged joint criminal

18 enterprise. Part of the Trial Chamber effort to establish Pavkovic's

19 knowledge of crimes being committed by the VJ in 1999 was the finding in

20 this paragraph that he attended a meeting in Pristina with Stevanovic and

21 Djordjevic from the MUP:

22 "While Kosovo Albanians were being forcibly displaced from the

23 town by VJ and MUP forces acting together."

24 The only cite is to one page of the testimony of Lazarevic, where

25 he says that this meeting occurred on 19 April 1999. The Trial Chamber

Page 288

1 provides no support for the proposition that VJ and MUP forces were

2 expelling Kosovo Albanians at the time and that Pavkovic was aware of it.

3 So the question is: Is there any credible evidence in the record, even

4 though uncited by the Trial Chamber, that would support such conclusion?

5 And I suggest to you there is not. A review of Volume I, paragraphs 838

6 through 873, where the Chamber describes the evidence of persons leaving

7 Pristina, there's not one bit of evidence that VJ and MUP were engaged in

8 forcible displacements there on 19 April, when Pavkovic was there and was

9 alleged to have seen this happen. So the Trial Chamber must have known

10 from their conclusions in Volume I that there was no support for their

11 conclusion in Volume III. The only reference in April in these

12 paragraphs in Volume I is in paragraph 867 where it is reported that a

13 witness, SD3, testified that he saw the greatest number of people leaving

14 Pristina in the second half of April after the post office was bombed.

15 He said MUP and VJ were not forcing persons to leave; they were leaving

16 on their own.

17 The testimony of Witness Filipovic also sheds light on this

18 issue. Filipovic basically said that he was in the Pristina Corps

19 command post there from 29 March on, that there were no Pristina Corps

20 combat units in the Pristina area after the NATO bombing started because

21 they were heavy targets in the Pristina area and they, according to plan,

22 left Pristina and went to safer places. From 30 March 1999 to 10 June,

23 Kumanovo Agreement, not a single member of the Pristina garrison fired a

24 single bullet despite daily attacks on Pristina by terrorists.

25 So the Trial Chamber's proposition that Pavkovic knew of crimes

Page 289

1 in 1999 because he was present in Pristina on 19 April when VJ and MUP

2 forces were expelling people is totally without evidentiary foundation.

3 In Volume III, paragraph 775, again deals with awareness of

4 crimes in 1998. In this paragraph the Chamber concluded that:

5 "Reports from international sources made him," Pavkovic, "aware

6 of MUP and VJ involvement in the forcible displacement and commission of

7 crimes against Kosovo Albanians, including in Pristina where he was

8 regularly located."

9 The cited source for this conclusion was a press statement and

10 testimony by Drewienkiewicz. The so-called press statement is P2542.

11 It's clearly not a press statement. It doesn't say "press release" on it

12 or anything like that. In his testimony at T 7815, he did not say it was

13 a press statement; he agreed with the Prosecution's suggestion that "it's

14 a press statement that you gave or your note for a statement you gave."

15 There's no indication it ever was released to the media, no

16 indication that it was published in any media. There's no exhibit of any

17 media publication of this alleged press release. However, the Chamber's

18 conclusion necessarily implies that it was a press release, that it was

19 actually released to the press, that it was published in some

20 publication, that General Pavkovic read that publication and thus knew of

21 its contents. There's simply no evidence of that at all beyond the mere

22 existence of this document, which I submit to you was not even a press

23 release.

24 Volume III, paragraph 572, footnote 1336, deals with the

25 underreporting of crime, which he was accused of by the Trial Chamber and

Page 290

1 the Prosecution. In this paragraph the Trial Chamber says:

2 "Farkas, chief of the security administration of VJ in 1999

3 testified that also as a consequence of the revelation of the

4 underreporting of crimes, Ojdanic sent him on a mission as head of the

5 security administration to inspect the security organs in the 3rd Army

6 and the Pristina Corps on 5 and 6 May 1999."

7 This is footnote 1336, citing the testimony of Farkas at 16292.

8 And here's what the testimony really was:

9 "Q. Thank you, General. Why did you in early May go to Kosovo?

10 Could you please tell us?

11 "A. Well, the first reason was that we had a situation there.

12 Some information was not specific enough, especially as regards security

13 affairs. And then the Chief of the General Staff, or rather, of the

14 Supreme Command Staff ordered me to go down to Kosovo and see where the

15 problem lay because he suspected that those reports were not reaching him

16 regularly and he thought that what he was getting was not sufficient for

17 his decision-making."

18 Nothing in this testimony says that he was sent there "as a

19 consequence of the revelation of the underreporting of crimes." He only

20 said that there was a situation regarding security affairs.

21 Again with regard to underreporting, Volume III, paragraph 572,

22 footnote 1340. This deals with two witnesses, Aleksandar Vasiljevic and

23 Branko Gajic, they were both assigned to the security administration of

24 the Supreme Command Staff and were deputy chief and assistant chief

25 respectively. In this paragraph the Chamber said this:

Page 291

1 "Vasiljevic gave evidence that he later discovered that a

2 decision had been taken by the 3rd Army command not to report the

3 occurrence of certain crimes in regular combat reports, as they were

4 being dealt with by military judicial organs."

5 So they're saying basically that Pavkovic issued an order not to

6 report crimes based on this testimony of Vasiljevic. They repeated the

7 same thing in paragraph 737, indicating the importance they attach to it.

8 Now, this is a serious finding by the Trial Chamber, a finding that

9 Pavkovic made a decision not to report crimes, to hide them from his

10 superiors. If it's true, it would support a finding that not only did

11 Pavkovic know of crimes being committed in 1999, he was deliberately not

12 reporting them up the chain of command. So it becomes important to see

13 exactly what Vasiljevic says he discovered on his mission to Kosovo. He

14 and Gajic were sent there in the first week of June, transcript 8751.

15 The testimony cited in footnote 1340 of the Chamber is in part this from

16 TC 8750. This is Vasiljevic answering questions:

17 "Then I asked the chief of security in the Pristina Corps whether

18 he had sent that information to the security section of the 3rd Army ...

19 and the chief of security of the Pristina Corps said that he had not

20 reported because all those cases had been processed already.

21 "And that's what I told him, that it was just a pretext, an

22 attempt at self-justification, that he should have made the report along

23 the line of the security organs, if not otherwise, and he should have

24 also reported to the security section of the 3rd Army in Nis."

25 And then he went on to say:

Page 292

1 "But I must say that those cases were not covered up or

2 concealed; that was my impression. They didn't report it the way I

3 suggested because the cases had already been prosecuted and processed.

4 They simply thought the problem had been resolved, the perpetrators had

5 been arrested and that's why they committed this omission in reporting."

6 So what he actually reported was that the chief of security of

7 the Pristina Corps, one level below General Pavkovic, had not reported

8 this information up to the 3rd Army, had simply not reported it at all.

9 And the Trial Chamber concludes from that that General Pavkovic ordered

10 that crimes not be reported. And there's simply zero evidence to support

11 that conclusion, none.

12 Volume III, paragraph 651, footnote 1567. The Prosecution

13 contended that -- and the Trial Chamber agreed that Pavkovic had a

14 special relationship with Milosevic that enabled him to go around the

15 chain of command and, in effect, be the man in charge in Kosovo even as

16 Samardzic was his superior in the 3rd Army command. The Trial Chamber's

17 acceptance of this proposition can be seen in the language used in this

18 paragraph. Volume III, paragraph 651, the Trial Chamber finds in a

19 letter of 22 July 1998:

20 "Pavkovic reminded Samardzic that the plan for combatting

21 terrorism had been agreed in a meeting with the FRY president and then,"

22 and this is an important word, "then directed Samardzic to draw up

23 details of the Pristina Corps operations."

24 This meeting was attended not just by Pavkovic, but by Samardzic

25 and several other individuals, but the important language here, the

Page 293

1 Trial Chamber uses the word "directed," indicating that Pavkovic was

2 ordering Samardzic to do something.

3 Actually, the word used by Pavkovic was "please," not "directed."

4 The document begins with the heading:

5 "Clarification required ..." and ends with:

6 "Please work out in more detail the engagement of the

7 Pristina Corps units in the implementation of the plan."

8 That's 4D100 of 22 July 1998.

9 What the document does is reminds Samardzic of a meeting in

10 Belgrade, express a need for instructions as to what to do with the

11 Pristina Corps as a result of that meeting, and asks very politely for

12 those instructions. Pavkovic was not entitled to engage the VJ based on

13 the meeting in Belgrade with Milosevic; he needed specific orders from

14 his commander, Samardzic. It is clearly a document showing that

15 Samardzic was in command and Pavkovic was asking for his next

16 instructions. The testimony of Vasiljevic in this regard at T 9092 is

17 illustrative.

18 On the same day Samardzic responded and suggested that since the

19 plan adopted by Milosevic had been initially proposed by Pavkovic, he

20 would like him to draft very specifically a proposal for indirect and

21 direct engagement of Pristina Corps units in blocking the villages of

22 Junik and Jasic and unblocking the said roads. That's 4D119,

23 22 July 1998.

24 There has been some concern expressed about this plan having been

25 drafted by Pavkovic and that would show some kind of a close relationship

Page 294

1 between he and Milosevic, but just being realistic about this from a

2 military point of view, if someone is going to be asked to draft a plan

3 regarding actions that need to be taken in a combat area, like was going

4 on in Kosovo, wouldn't you want the person that is there, that's familiar

5 with the territory, that's familiar with the villages, that's familiar

6 with everything that's going on, to make a suggestion as to a plan to

7 deal with those issues and that's exactly what happened here. They

8 picked the right person to make the proposal because he was the one that

9 knew everything.

10 Anyhow, the next day Pavkovic submitted his proposal, again using

11 the word "please," in asking Samardzic for approval. That's 4D101 of

12 23 July. And on the same day Samardzic then approved but did not allow

13 the use of Pristina Corps units in unblocking the Pristina-Kijevo-Pec and

14 Stimlje-Dulje-Suva Reka roads. That's 4D102 of 23 July.

15 The Trial Chamber then found that this order "asserted the

16 obligation to adhere to the VJ chain of command," leaving one with the

17 belief that somewhere Samardzic told Pavkovic that he had to adhere to

18 the VJ chain of command, as if he was not adhering to the VJ chain of

19 command, which he was, by the way. And this conclusion is not supported

20 by anything. That's in paragraph 651. Nothing supports it at all.

21 Next is Volume III, paragraph 514, the footnote is 1133. It has

22 to do with the violation of the October Agreements that Pavkovic was

23 charged with by the Prosecution and found to have been guilty of by the

24 Trial Chamber. The Trial Chamber says in Volume III, paragraph 514, that

25 Dimitrijevic, who they found to be a truthful witness in spite of

Page 295

1 significant evidence to the contrary, reported to the General Staff in

2 late 1998 and early 1999 that reports from the 3rd Army and Pristina

3 Corps that all actions occurring in Kosovo were defensive were both

4 incorrect and misleading. The Chamber cites P928 of 30 December 1998 at

5 page 14, where Dimitrijevic is complaining of a situation near Podujevo,

6 where it is reported that the VJ was attacked while engaging in a planned

7 exercise. He says it was not a planned exercise but an effort to provoke

8 the KLA so that the MUP could respond.

9 The Trial Chamber under the heading "Conduct with respect to the

10 October Agreements" quoted the Dimitrijevic charges as evidence of

11 violation of the October Agreements by Pavkovic. They printed this quote

12 from Dimitrijevic:

13 "After the so-called pretend or real planned exercises in which

14 this company took part in the field, General," this is a collegium

15 meeting, by the way, and he's talking to General Perisic, I think,

16 "General, these sorts of moves will lead us to disaster. The explanation

17 that this was a planned exercise, that is not true. It was planned that

18 the unit would provoke the terrorists so that the MUP would then have to

19 do whatever it had to do."

20 That's paragraph 514. Without more, this tends to make the case

21 that reports from the Pristina Corps or 3rd Army regarding this incident

22 contained lies and misinformation, claiming this was a planned exercise

23 when it was not, instead a provocation.

24 But there's more that the Chamber apparently chose not to mention

25 because it would destroy the point they were trying to make. The

Page 296

1 footnote 1133 directs the reader to the testimony of Dimitrijevic at

2 pages 26627, and 26653 to 26654, but fails to point out his testimony at

3 T 26631. And this is really important. On this page Judge Bonomy asks

4 Dimitrijevic about Exhibit P928 and reads to him that quote about this

5 not being a planned exercise and that the reports were not true. This

6 appears in paragraph 514 of the judgement, and it is in response to

7 Judge Bonomy's question that Dimitrijevic then says:

8 "... I know that soon after this things were checked, and

9 General Obradovic explained that after an additional report was requested

10 they established that, after all, this was not a provocation; rather, it

11 was a planned exercise ..."

12 So on the same page of the transcript where Judge Bonomy reads

13 this quote from Dimitrijevic that the Trial Chamber relied on, that this

14 was not a planned exercise, on the same page of the transcript

15 Dimitrijevic says: We learned later that it was a planned exercise.

16 That didn't make it into the Trial Chamber's account of this matter.

17 So with the clear testimony that Dimitrijevic's allegations at

18 this collegium meeting were wrong, the Chamber chose to use the

19 allegations as if they were true, leaving out the testimony that it was,

20 in fact, a planned exercise.

21 Volume III, paragraph 1161, again dealing with violation of the

22 October Agreements. This regards the issue of the MP battalion of the

23 72nd Special Brigade being moved into Kosovo without Ojdanic's approval.

24 The Trial Chamber said that at a collegium meeting - and we talk about

25 that much later - but the Trial Chamber said at a meeting of the

Page 297

1 collegium:

2 "Ojdanic told those present that he would have a talk with

3 Pavkovic about the matter."

4 The citation is in footnote 1161 to pages 16 and 24 of P941.

5 This language or anything like it is simply not there. From the

6 judgement it appears that Ojdanic was concerned and was going to talk to

7 Pavkovic about this. There's simply no evidence that we could find to

8 support that conclusion, certainly not where the Chamber said it was

9 found in their footnote.

10 Volume III, paragraph 659, at footnote 1595, deals with the issue

11 of clashes with superiors that the Trial Chamber found Pavkovic was

12 involved in. Paragraph 659 they've said this:

13 "On 6 September 1998, Samardzic and Pavkovic also clashed over a

14 request made by Pavkovic to make a helicopter available to the

15 Pristina Corps."

16 There simply was no clash. It's clear from a reading of the

17 relevant documents that's covered in detail at paragraph 116 of our

18 brief, the Trial Chamber was simply wrong. The Exhibit is 4D230. You

19 can look at it. What it is is an exhibit where Pavkovic asks for a

20 helicopter. The request has to be sent to the General Staff by

21 Samardzic. He sends it to the General Staff. He gets a response back

22 from the General Staff denying it, and then informs Pavkovic of the

23 process that has to be undertaken to get approval, has to go through the

24 air force, and that sort of thing. So that's all there was to that;

25 there was no clash at all.

Page 298

1 And the contention that there was such close relationship between

2 Pavkovic and Milosevic, if that was true, he wouldn't have had to go

3 through this anyhow. He could have just called Milosevic and said: Send

4 me a helicopter.

5 JUDGE LIU: Mr. Ackerman.

6 MR. ACKERMAN: Yes.

7 JUDGE LIU: I would like to ask you a question.

8 MR. ACKERMAN: Yes.

9 JUDGE LIU: You talk about arming or disarming.

10 MR. ACKERMAN: Yes.

11 JUDGE LIU: The breaching of the October Agreement.

12 MR. ACKERMAN: Yes.

13 JUDGE LIU: As well as introducing troops to Kosovo.

14 MR. ACKERMAN: Yes.

15 JUDGE LIU: All this happened in 1998 and early 1999. My

16 question is: What is your position on the issue whether in the

17 circumstances of the present case a joint criminal enterprise member can

18 be found to have acted in furtherance of the common purpose prior to the

19 time when it was found to have existed?

20 MR. ACKERMAN: Your Honour, my position is that he can't. The

21 simple answer is: That can't be. And I do intend to go into that in a

22 little bit of detail in a few minutes, but to answer your question: No,

23 I don't think that can happen. But the Trial Chamber made all of these

24 findings and the Trial Chamber concluded that these findings were very

25 important to their determination of the existence of the joint criminal

Page 299

1 enterprise and General Pavkovic's intent to operate within it. So I

2 think it's important for me to bring the 1998 matters to your attention.

3 We concluded from the very beginning of this case that the 1998 matters

4 were irrelevant, should not be allowed into evidence, that they were not

5 in the indictment, and the Trial Chamber basically agreed with us but

6 then said that the Prosecution could use it in very limited ways with

7 very exact proof. So that's what happened. And I've always been

8 frustrated by the fact that we spent so much time on 1998.

9 JUDGE LIU: Thank you very much. I'm looking forward to your

10 further elaborations of this issue at a later stage.

11 MR. ACKERMAN: Thank you, Your Honour.

12 Volume III, paragraph 694, 704, 774, were all based on an

13 exhibit, a document, 4D103. And the Trial Chamber's findings were based

14 on the proposition that this was an active order, issued by Pavkovic,

15 ordering the engagement in 1999, Your Honour, of VJ troops. In

16 Volume III, paragraph 694, the Trial Chamber says this:

17 "An order issued by Pavkovic on 23 March 1999 directed that the

18 VJ was to be immediately engaged against all enemy forces," immediately

19 engaged against all enemy forces.

20 It further stated that:

21 "In places or sectors where the presence of the KLA has been

22 established, units were to establish protective shell in order to prevent

23 attacks on the 3rd Army commands and units, to focus on populated places

24 with a loyal population, and to prevent a link-up between KLA and NATO

25 air-borne assaults."

Page 300

1 We talk about this in our brief at paragraph 214, but there's

2 some additional clarification I wanted to give you. The cite, as I said

3 was to 4D103, it's paragraph 1.6 of 23 March 1999. This is reported

4 under the heading "Military Orders" -- the Trial Chamber's heading,

5 "Military Orders," seeking to set out the orders issued by Pavkovic

6 during the NATO invasion. It was part of the fabric on which the

7 Trial Chamber stitched the guilt of Pavkovic. However, as is much too

8 common in this judgement, the Trial Chamber was simply wrong. The order

9 was not what the Trial Chamber says it was. The Trial Chamber left out

10 the main operative language of the order that was its very first phrase,

11 which is this:

12 "At the beginning of NATO strikes and in case of communications

13 break with superior commands and officers," do this.

14 So the order was only to be implemented in case of communications

15 break with superior commands. It wasn't an order for an immediate

16 engagement at all. It was only to be operative in the event of this

17 break and only during the duration of this break, and it never took

18 effect because the communication break never happened. The Trial Chamber

19 repeated this error in paragraph 704, again citing this document as if it

20 were an operative order. Here the Trial Chamber said:

21 "It was a basis for the Joint Command orders for the VJ and MUP

22 to engage in widespread joint operations in late March of 1999."

23 And finally in paragraph 774, using the same document as a basis

24 to conclude that in spite of his awareness of allegations of widespread

25 criminal activity, he ordered VJ operations in conjunction with MUP. Of

Page 301

1 course, the order was not activated and, further, it does not call for

2 joint activities with MUP. The Trial Chamber must have been aware of the

3 Lazarevic Pristina Corps order in response to this, 5D1793 of 23 March,

4 where Pavkovic's paragraph 1.6 becomes Lazarevic's paragraph 1.6 with

5 only minor changes. The Lazarevic version orders that it goes into

6 effect only if there is a severance of communications with the

7 Pristina Corps command. Again, never happened.

8 The Trial Chamber must also have been aware of an order issued by

9 the command of the 125th Motorised Brigade on 24 March 1999, 5D708,

10 limiting the order to the event that there's a communication breakdown

11 with the brigade command. The contingency of the order goes all the way

12 down to the brigades and never took effect.

13 Volume III, paragraph 705, footnote 1736, this deals with the

14 close relationship with Milosevic. The Trial Chamber spoke of testimony

15 by General Curcin regarding the drafting of document P1487, a group of

16 suggestions from Ojdanic to Pavkovic regarding a Pristina Corps

17 Joint Command order for an action near Rugova gorge. The

18 Joint Command/Pristina Command order was issued on 15 April 1999 at

19 P1878. Note that at the very beginning this document refers to a map,

20 and it's also important to note that this is not a 3rd Army command

21 order; it's a command not issued by Pavkovic but a command of

22 General Lazarevic at the Pristina Corps command. Basically Curcin

23 testified that he was contacted by Ojdanic who said he had seen Pavkovic

24 and was given the map for the ordered operations. Ojdanic said that he

25 saw Pavkovic after Pavkovic had been to a meeting with Milosevic.

Page 302

1 The Trial Chamber says:

2 "Curcin further testified that Pavkovic came to see Ojdanic after

3 meeting with Milosevic:

4 "Having bypassed his immediate superior ..."

5 They say this is testimony of Curcin, paragraph 705. Curcin

6 doesn't say this, he doesn't say that it was a bypass of his immediate

7 superior. The Trial Chamber again is wrong. Footnote 1736, the

8 reference to the testimony of Curcin 17025, 17027 of the transcript.

9 There's no evidence of what Pavkovic and Milosevic talked about,

10 if they actually met on that day, none whatsoever. The Trial Chamber

11 suggests that Ojdanic's sending suggestions to Pavkovic is quite

12 irregular since he was his superior and could simply have ordered him to

13 proceed in a certain way, and that is certainly true, he could have.

14 However, these suggestions went to Pavkovic who did not issue the

15 original orders. They were issued at the corps level by the

16 Pristina Corps. We believe this is simply a consultation between two

17 military leaders regarding activities to be carried out by the

18 Pristina Corps in Kosovo and the best way for them to be carried out.

19 Two superior minds meeting about a matter of major concern, and

20 suggestions from Ojdanic in that situation are not irregular at all.

21 Volume III, paragraph 729, deals with the failure to prevent or

22 punish. The Trial Chamber complains in this paragraph that:

23 "Reports from the 3rd Army command to the Supreme Command Staff

24 at the start of April 1999 indicate that many criminal and disciplinary

25 proceedings had been initiated for crimes against the VJ but did not

Page 303

1 mention any specific investigations of war crimes or serious violent

2 crimes."

3 I suggest this would only be of evidentiary significance if the

4 Trial Chamber had been also referred to evidence that the 3rd Army was in

5 possession of specific information regarding "investigations of war

6 crimes or serious violent crimes" and failed to report this information.

7 This they do not do. They don't cite any evidence of that regard that

8 was not reported. They do say this, that two 3rd Army combat reports

9 "state that crimes of looting from abandoned houses of Kosovo Albanians

10 had occurred." That's in footnote 1826. And they cite two exhibits,

11 4D274 and 4D275. And you can look at those and you won't see any

12 evidence of looting from abandoned houses of Kosovo Albanians. It's not

13 mentioned in these documents at all. The only information about houses

14 in one of those documents is in 4D275, where it's reported that NATO

15 aircraft attacked two villages, damaging houses and causing casualties

16 among the civilian population. That's on page 2. Whether the casualties

17 and houses were Serb or Albanian is not mentioned.

18 Volume III, paragraph 179 at footnote 1785, this has to do with

19 Pavkovic's awareness of 1999 crimes. In an effort to show this awareness

20 by units under his command in 1999, the Trial Chamber said:

21 "By 31 March, Pavkovic had information indicating that VJ

22 military territorial units and MUP forces were channelling displaced

23 Kosovo Albanians to Albania."

24 The Trial Chamber cites as their source for that P2930, a

25 31 March report, from a Pristina Corps command group at Mazrek village to

Page 304

1 the Pristina Corps operations centre. The Trial Chamber cited no

2 evidence that this report went beyond the command operations centre of

3 the Pristina Corps. The document doesn't show that it went anywhere but

4 to the Pristina Corps command. It did not go to the Pristina Corps

5 operations centre.

6 Looking at the Pristina Corps combat reports that did go to the

7 3rd Army operations centre for that day and the next day, there's no

8 indication that this information was forwarded to the 3rd Army. 6D1135

9 for 31 March, 4D371 for 1 April. Thus, there's simply no evidence that

10 Pavkovic was ever made aware of this information in that report from

11 Mazrek village. No proof that he had this by March 31, as the

12 Trial Chamber declares.

13 What he did know by the 31st of March is information contained in

14 a 3rd Army combat report, 4D510 of 24 March, regarding a column of

15 refugees seeking to cross the border. VJ border security closed the

16 border, did not permit them to leave the country. Now, the Trial Chamber

17 was aware of this report, they cited it. After mentioning at

18 paragraph 556 [sic] in Volume III, their conclusion was that VJ was

19 "involved with the movement of the civilian population." They didn't say

20 that that movement was to keep them from going across the border; they

21 just said "involved with the movement," leaving the impression that they

22 must have been involved with expelling Kosovo Albanians. That is not

23 what happened. We think this casts a serious doubt on a plan that had

24 supposedly existed since at least October to expel Kosovo Albanians. It

25 makes such a conclusion beyond a reasonable doubt, I think, an impossible

Page 305

1 conclusion to reach.

2 I want to go now to the questions that the Chamber asked us to

3 address, and I'm going to start with this. We were asked to address

4 this:

5 "Discuss, with reference to the record, whether there would be

6 any effect on Pavkovic's appeal regarding his convictions pursuant to

7 JCE III, if the Appeals Chamber were to accept the Prosecution's argument

8 that the Trial Chamber applied an incorrect mens rea standard for JCE III

9 liability."

10 The simple answer, Your Honours, is no. Consider the following

11 example: General A, as a member of a joint criminal enterprise, orders a

12 unit under his command to expel the inhabitants of a village from the

13 country to force them to flee to a neighbouring country. He recognises

14 that since the soldiers under his command are typical of young soldiers

15 everywhere, there is a possibility that they will commit other criminal

16 acts in the process of carrying out this order. He does not intend for

17 that to happen. He does not wish for that to happen. He wants to

18 prevent that from happening. So he issues orders to be brought to the

19 attention of all the soldiers that contain an assurance that they would

20 be arrested and imprisoned for the commission of any crimes during the

21 ordered exercise. He orders their immediate superiors to monitor the

22 activities to prevent any such crimes and immediately take action to

23 punish any violator. This is the commander's responsibility under

24 international law and as set out in Article 7 of the Statute of this

25 Tribunal.

Page 306

1 Article 7 refers to the crimes defined in Articles 2 through 5 of

2 the Statute. Joint criminal enterprise under current Tribunal

3 jurisprudence is simply a form of commission of those stated crimes and

4 thus Article 7 is applicable. Joint criminal enterprise is not, as we

5 all know, set out as some separate offence. Article 7 makes a superior

6 responsible for the acts of a subordinate if it is shown that the

7 superior has failed to take the necessary and reasonable measures to

8 prevent such acts or to punish the perpetrators thereof. It thus makes

9 no difference to our position in our brief regarding the convictions of

10 Pavkovic under the third category of joint criminal enterprise which

11 mens rea standard is applied.

12 The difference between the Pavkovic facts and the examples set

13 out above is that the example presumes a commander who as part of a joint

14 criminal enterprise ordered the commission of the offence that was its

15 purpose. No joint criminal enterprise was proved in this case, Pavkovic

16 was not a member of any joint criminal enterprise, Pavkovic never issued

17 an order to soldiers under his command to commit any offence punishable

18 by this Tribunal. He made extraordinary efforts to prevent the

19 commission of any crimes, both as commander of the Pristina Corps and the

20 3rd Army.

21 The second question we were asked to:

22 "Discuss, with reference to the record, whether, in the event the

23 Appeals Chamber were to grant the Prosecution's argument that the sexual

24 assaults of K62, K14, and K31 constituted persecutions, Pavkovic should

25 be held responsible for these persecutions pursuant to JCE III."

Page 307

1 Again, my answer is no. Even if the correct interpretation of

2 the jurisprudence of this Tribunal with regard to JCE III is that argued

3 by the Prosecution, General Pavkovic could not be held responsible for

4 the sexual assaults that are the subject of this question. Assuming the

5 finding that there was a joint criminal enterprise and that Pavkovic was

6 a member of it, there would need to be proof that he could have foreseen

7 the possibility that these offences would be committed by those carrying

8 out his orders. That requires a connection to be shown between Pavkovic

9 and the principals in these offences. If they were not individuals who

10 were members of units under his command, then he could not possibly

11 foresee that they would commit these crimes. With regard to persecution,

12 there is simply no evidence that could be called "proof beyond a

13 reasonable doubt" that these incidents were persecutory in nature other

14 than simple non-war crime sexual assaults.

15 With regard to K31 there is no evidence regarding the identity of

16 the three soldiers who committed the assault. She describes their

17 uniforms as green camouflage, some had their faces painted black and wore

18 bandannas bearing the word "massacre" written on them. That's P2596,

19 page 1. One had a beard clear down to his chest, T 9250. Their

20 descriptions are consistent with paramilitaries, not VJ soldiers. As

21 Witness K73 pointed out in his testimony, regular VJ soldiers were not

22 allowed to wear beards. That's transcript 3310.

23 It is certainly not shown that these were VJ soldiers in the

24 chain of command flowing down from General Pavkovic and among those who

25 would have received Pavkovic's orders regarding adherence to

Page 308

1 international humanitarian law. The events that are described are

2 strongly consistent with the non-persecutory attack just as they could be

3 consistent with a persecutory one. But when there are two reasonable

4 conclusions, the one that's consistent with innocence must be the one

5 that's chosen.

6 Witness K62's testimony does not identify the three men who

7 sexually assaulted her beyond brown and green camouflage uniforms,

8 wearing hats with masks on their faces. That's transcript 2274, 75. She

9 said she was staying home that day because she was afraid of

10 paramilitaries, 2269. This confirms that paramilitaries were present in

11 Pristina at that time. There's actually no evidence that the attack on

12 this witness was persecutory in nature. There's no evidence as to who

13 the men were who attacked her. The fact that persons who committed these

14 offences were wearing uniforms is not at all conclusive as to the

15 military organisations, if any, that they may have belonged to. As

16 Zlatomir Pesic testified:

17 "There were army surplus sale points where uniforms and parts of

18 uniforms were available to be bought and that's how people could get hold

19 of a uniform, not only by having a prior war-time assignment."

20 Transcript 7316.

21 THE INTERPRETER: Mr. Ackerman is kindly asked to slow down for

22 the interpretation. Thank you.

23 MR. ACKERMAN: K14 gives a clear description of being sexually

24 assaulted by a policeman. She even gives his name. There may be no

25 contest over whether this person was actually a policeman. Clearly he

Page 309

1 was not a VJ soldier in the Pavkovic chain of command. There's nothing

2 that would make this attack a persecution beyond a reasonable doubt.

3 Finally, in paragraph 11, Volume III of the judgement, the

4 Trial Chamber points out that the Prosecution was only proceeding on the

5 basis that the members of the joint criminal enterprise used members of

6 the forces of FRY and Serbia that they had control over to carry out the

7 deportations, forced transfers, murders, and persecutions. With regard

8 to these three events, the Prosecution failed to prove which member or

9 members of the JCE had control over these perpetrators or whether any did

10 or that they were even members of the forces of FRY and Serbia.

11 We were asked to:

12 "Discuss the relevance of the indictment made public on

13 27 May 1999 on the mens rea of Sainovic and Pavkovic, given that the

14 indictment was made public after the last crime for which Sainovic and

15 Pavkovic were convicted was committed on 25 May 1999."

16 We believe the answer is that it had absolutely no relevance.

17 There's absolutely no evidence as to when or even whether Pavkovic became

18 aware of this indictment. The Trial Chamber's finding in Volume III,

19 paragraph 755 that Pavkovic "must have been informed of the existence of

20 the indictment on or around 27 May" has absolutely no evidentiary basis,

21 none. It's pure speculation and not a speculation upon which the TC

22 could base knowledge of allegations that crimes had been committed by VJ

23 personnel. In paragraph 755 the Chamber says:

24 "The indictment was discussed at the Supreme Command Staff

25 briefing of 28 May where Branko Krga stated that one of the purposes of

Page 310

1 bringing the indictment against the high FRY Serbian officials was to

2 stall peace initiatives."

3 Now, if you just read that, the conclusion that you draw is that

4 there was a discussion, a discussion means more than one person talking.

5 And that Krga said it had something to do with high FRY Serbian

6 officials. Now, this is a stretch without evidentiary support, another

7 one. If you actually look at 3D628 and read about this "discussion" that

8 was had at that meeting between the attendees, you'd very disappointed.

9 It does show that taking anything that the Trial Chamber says for granted

10 can be a big mistake. There is no indication that there was any

11 discussion of the Milosevic indictment made public the day before. It

12 was not mentioned by name. No one says anything about an indictment

13 against high FRY Serbian officials. The only thing is this. Branko Krga

14 says:

15 "Bringing an indictment has several purposes. One of them is, of

16 course, stalling peace initiatives."

17 That's it. That's all that was said at that meeting by

18 Branko Krga. While it's highly likely that this is the ICTY indictment

19 that Krga mentions, it's no evidence whatsoever that it had been seen by

20 any of the members of the Supreme Command Staff, studied by them,

21 discussed by them. To conclude that this small phrase represented

22 awareness within the VJ and that "Pavkovic must have been informed of the

23 existence of the indictment on or around 27 May" is nothing more than

24 pure speculation. And yet, it's used along with other evidence to prove

25 that Pavkovic was aware of allegations of crimes committed by VJ

Page 311

1 personnel.

2 We were asked to:

3 "Discuss, as a legal matter as well as with respect to the

4 particular Trial Chamber's findings for each appellant convicted of

5 JCE I, whether the actus reus and mens rea of a JCE member may be

6 fulfilled prior to the existence of the common purpose of the JCE."

7 And I agree with the Prosecution when they said yesterday that it

8 does not. One of the problems with regard to analysis of this issue is

9 the language of the indictment. In paragraph 20 it charges:

10 "This joint criminal enterprise came into existence no later than

11 October 1998 and continued throughout the time-period when the crimes

12 alleged in Counts 1 to 5 of this indictment occurred, beginning on or

13 about January 1999 and continuing until 20 June 1999."

14 It's difficult to figure out - if there was a joint criminal

15 enterprise - when it might have come into existence. There's certainly

16 no evidence that one existed at any time and certainly no evidence that

17 there was anything going on in October of 1998 that would have caused the

18 creation of a joint criminal enterprise. What was going on from October

19 right up to almost the day that NATO attacked was efforts to solve the

20 problem in many different forms. And I suggest that the government of

21 FRY was making serious efforts to solve that problem. And it was almost

22 done at Rambouillet, they had an agreement, and then at the last minute,

23 as you'll see, they brought in this Military Agreement that the Serbs

24 simply couldn't accept.

25 Had the Prosecution been able to prove and had the Trial Chamber

Page 312

1 concluded that the JCE alleged in the indictment was in existence in

2 October 1998, that would compel one answer. However, it's impossible to

3 tell. Well, it is possible to tell. I take that back.

4 The plan as alleged was an expulsion plan. It seems to me that

5 it would be virtually impossible to form an intent to participate in such

6 a plan before it actually came into existence. We strongly contend that

7 there was no plan, no JCE, theoretically, if such a plan came into

8 existence with a pattern of crimes in 1999. Nothing Pavkovic was doing

9 before that date could have been found to be the mens rea for the

10 carrying out of the plan. Up until 13 January 1999, Pavkovic was the

11 commander of the Pristina Corps. What the Prosecution alleged and what

12 the Chamber found and what the evidence actually showed about his tenure

13 there will be discussed as we proceed. So the shorter answer is that one

14 cannot intend to carry out the goals of a plan when there is no plan. It

15 must exist before intent to carry it out can be formed.

16 We were asked to:

17 "Discuss whether and under what circumstances the mens rea under

18 JCE I for deportation and other inhumane acts ... may be inferred from

19 the accused's knowledge of crimes committed in 1998, including crimes

20 other than deportation and other inhumane acts (forcible transfer)."

21 The allegations and findings regarding deportations in this case

22 all deal with events following the beginning of the NATO bombing on 24

23 March 1999. The Court's question is: Could Pavkovic's knowledge of

24 crimes committed in 1998 be used to infer a mens rea for the deportations

25 that were the goal of the alleged JCE? There are circumstances where I

Page 313

1 suppose that could be the case. If the evidence beyond a reasonable

2 doubt were to show the existence of an expulsion plan satisfying the

3 actus reus of JCE I during the 1998 criminal events in which Pavkovic was

4 aware and if during that time these criminal events were seen as

5 preparatory to carrying out the joint plan, then the inference could be

6 made. The evidence in this case, however, does not come close to

7 supporting such a finding. The OTP effectively admits as much by their

8 indictment, that alleges expulsions in accordance with the alleged plan,

9 beginning with the NATO bombing.

10 We were asked to:

11 "Discuss whether the incident in Tusilje ... on 29 March 1999

12 should have been pleaded in the indictment, whether a defect in this

13 respect, if any, was cured, and whether Sainovic, Pavkovic, Lazarevic,

14 and Lukic suffered a prejudice as a result of any such defect."

15 We believe that clearly the Trial Chamber should not have

16 convicted Pavkovic based upon a finding of deportation or forcible

17 transfer from the village of Tusilje. We have no reason, however, to

18 believe that this defect was cured in any way. It's impossible to

19 determine if General Pavkovic suffered any prejudice as a result.

20 I want to talk now for just a few moments about the common plan,

21 the existence of the common plan. This is subground (B), 1(B) of our

22 brief. It has to do with expulsion of Kosovo Albanians. Exhibit 2D301,

23 which was not cited by the Trial Chamber, of 7 April 1999 is an

24 announcement from the FRY government urging Kosovo Albanians not to leave

25 the country. This militates against the existence of an expulsion plan.

Page 314

1 Voluntary departure would be much more effective in realising such an

2 alleged plan if it existed. So would the leaders plead against voluntary

3 departure just so they could forcibly expel? It makes no sense. The

4 Trial Chamber didn't cite this document.

5 On the same day, 7 April, 3D753, the office of the General Staff

6 issued a plea to the Albanian population to return to their homes. The

7 Trial Chamber didn't cite this document.

8 Just eight days after these pleas from the government and

9 military for the Kosovo Albanians to remain in the country,

10 General William Walker went to the Djeneral Jankovic border crossing and

11 secured an agreement with the border organs in Macedonia that they would

12 let all Albanian refugees into the country without any hold-up. In other

13 words, kind of assisting that process of refugees leaving the country.

14 That's 4D511, again not mentioned by the Trial Chamber. It's a

15 15 April 1999 document.

16 On 21 April 1999, in 3D431, again not mentioned by the

17 Trial Chamber, a Pristina Military District combat report to the

18 Pristina Corps reports NATO projectiles hitting a refugee camp,

19 completely demolishing it, and killing and wounding the refugees. News

20 of such an attack, it seems to me, would certainly heighten fears of NATO

21 bombing and cause people to want to flee. This report just a couple of

22 weeks after the government pleas for Kosovo Albanians to remain

23 additionally says that many Albanian families were returning to the

24 Podujevo area, some with the assistance of MUP. Again the TC didn't

25 mention this.

Page 315

1 So why did they leave? That's a major question. Why did they

2 leave?

3 We're all citizens of this world. We see what's going on around

4 this world every day. We see what goes on in places like Iraq and

5 Afghanistan and now in Syria, all the refugees that leave those places in

6 a state of war --

7 THE INTERPRETER: The interpreters kindly ask the speaker to slow

8 down.

9 MR. ACKERMAN: I'm having trouble speaking slowly enough. I'm

10 sorry.

11 We see what happens in this world, and we see no allegations of

12 expulsion in any of these other situations where refugees are leaving in

13 large numbers. Serb refugees left in large numbers during the NATO

14 bombing. Helpful can be the testimony of Zyrapi, the KLA officer and

15 Chief of Staff of the KLA. At transcript 5992, he talks about the KLA

16 wanting the population to move for security reasons on 25 March, the day

17 after the NATO bombing started. 5D980 is a Pristina Military District

18 combat report to the 3rd Army. In the first paragraph they report NATO

19 bombing in the area and the results, and then in the same paragraph they

20 report that both Albanians and Serbs are leaving. Albanians going to

21 Macedonia, Serbs going to Nis.

22 Serbs would not have been leaving because of an expulsion plan;

23 they would have been leaving because of the NATO bombing. It makes it

24 hard to argue that Albanians were leaving due to expulsion. The

25 Trial Chamber ignored this aspect of this document. On 3 April 1999

Page 316

1 Bozidar Delic, commander of the 549th VJ Motorised Brigade, sent a report

2 to the Pristina Corps command, which is 5D885. This report was stamped

3 "Military Secret: Strictly confidential." Most of these reports were

4 stamped with that. Most of these reports were confidential. No one

5 expected them to see the light of day. They weren't done for PR

6 purposes; they're real.

7 Commander Delic had no reason to suspect that his report would be

8 made public. It gives it a certain aura of credibility, significantly

9 more so than after-the-fact testimony or public statements by persons

10 from either side of this conflict --

11 JUDGE LIU: Mr. Ackerman --

12 MR. ACKERMAN: Yes.

13 JUDGE LIU: If you have trouble to speak slow enough, you may

14 make a longer pause after each sentence.

15 MR. ACKERMAN: I'll do that. Thank you, Your Honour.

16 JUDGE LIU: Thank you.

17 MR. ACKERMAN: The report was sent just a few days after the

18 beginning of the NATO bombing. Delic pointed out his surprise at the

19 huge numbers of refugees, 290.000 since the bombing started. He pointed

20 out that he had learned that it was the position of authorities to keep

21 them from leaving, to have them return to their homes. He said the

22 refugees were coming from the remotest parts of Kosovo. He said persons

23 in his brigade had talked with the refugees and they gave their reasons

24 for wanting to leave and leaving, and he listed those reasons. A, fear

25 of major fighting; B, some to avoid forced mobilisation into the KLA; C,

Page 317

1 fear of the army and the police, especially Arkan's troops. However, on

2 further questioning they said they did not fear the army. They would

3 stay if army troops were near where they lived. And finally, D, the NATO

4 bombing was emphasised by all groups as the primary reason because NATO

5 does not distinguish between troops and civilians. They do not look

6 where they are striking.

7 There is no indication that anyone was being forcibly deported.

8 Although cited several times, the Trial Chamber gave the conclusions of

9 this document no credit.

10 On the other hand, Kosovo Albanian witnesses in the refugees

11 camps and in court had a motive for being untruthful about their reasons

12 for departure. Everyone knew that Kosovo was seeking independence from

13 Serbia and may succeed if Serbia could be seen as oppressors. This

14 motive was significantly heightened in 1999 because the Kosovo Albanians

15 were receiving international support for their campaign against the

16 Federal Republic of Yugoslavia.

17 The record contains evidence of significant departures of Kosovo

18 Albanians from Pristina. There is also evidence that NATO was bombing

19 civilian structures in Pristina. Witnesses Marinkovic and Filipovic

20 testified about NATO bombing of civilian structures in Pristina. The

21 Trial Chamber rejected their testimony with the following language:

22 "Indeed a significant number of reports made at the time are in

23 evidence and none of them confirms Marinkovic and Filipovic's testimony

24 that civilian buildings in Pristina were targeted."

25 That's Volume II, paragraph 837 in some other not-true statement

Page 318

1 by the Trial Chamber.

2 On 13 April 1999, in Exhibit P2004, a Pristina Corps combat

3 report to the 3rd Army and the Supreme Command Staff, said this:

4 "The following civilian targets were attacked in Pristina:

5 Jugopetrol warehouse, the plastics factory, the bus station, and the

6 Dardanija neighbourhood. The report also listed targets that were not

7 classified as civilian: The Lukare warehouse and the Slatina warehouse."

8 The Trial Chamber cited this document, but as evidence of

9 non-confirmation of the testimony of the two witnesses, yet the document

10 clearly supports their testimony that civilian targets were bombed.

11 There are several additional documents reporting NATO attacks on

12 civilian targets. Although many were cited by the Trial Chamber, it was

13 for other reasons, and they failed to consider the civilian consequences

14 of the NATO attacks. I refer you to 4D172; 3D280, not cited by the

15 Trial Chamber; 5D223, not cited by the Trial Chamber; 4D286; 4D342, not

16 cited by the Trial Chamber; 4D290; 5D225, not cited by the Trial Chamber;

17 5D914, and that's characterised by the Chamber as a document suggesting

18 that buildings and objects forming part of the Serbian civilian

19 infrastructure were bombed by NATO. But actually, what it reports is a

20 NATO attack on a column of Albanian refugees returning to their homes on

21 tractors, killing 100 and wounding 50. See Volume I, paragraph 1214.

22 4D358; 5D222, not cited by the Trial Chamber; 6D1489, not cited by the

23 Chamber; 4D336; 5D228, not cited; 5D241, not cited; 5D242, not cited;

24 4D309, which the Trial Chamber says shows forcible displacement and it

25 does not, Volume III, paragraph 848.

Page 319

1 So did General Pavkovic in all of his efforts to ensure

2 compliance with international humanitarian law do anything for the

3 protection of these Kosovo Albanian civilians? And the answer is yes.

4 In early April, right after the bombing started, Pavkovic phoned

5 General Branko Krga, chief of legal administration in the Supreme Command

6 Staff, by telephone with regard to the Kosovo Albanian refugees,

7 expressing his concern that arrangements were needed to be made to take

8 care of these people, make sure they were clothed and housed and fed and

9 things of that nature, and what do they recommend that he do about that.

10 That's transcript 16916. Pavkovic issued several orders for the

11 protection of civilians during the NATO bombing period. Shortly after

12 his conversation with General Krga, his Grom 4 order of 10 April 1999,

13 which is 4D308, was issued. It contains specific instructions for

14 civilian protection. In item 2, paragraph 5, page 4, he orders 3rd Army

15 units at:

16 "Established axes on the state border, organise the reception of

17 refugees, and offer help to governing organs in their further care."

18 The last sentence of item 4, page 6 reads:

19 "Carry out the defensive operation in two stages with full

20 application of and honouring the Geneva Conventions on the protection of

21 victims of war and its Additional Protocols."

22 4D212, not cited by the Trial Chamber, a 14 April 1999 document,

23 first of all, indicates that the Pavkovic orders from 10 April regarding

24 civilians are being honoured. This is a report by a commission he

25 appointed to look into the situation of refugees being accommodated in

Page 320

1 Istok. While the commission found that none had been accommodated there,

2 there were 544 that had been in a school in Suvi Lukavac, which I think

3 is nearby. After receiving food and fuel from the staff, these refugees

4 travelled towards Djakovica in the direction of Albania. They were

5 intercepted at one point by the VJ as they approached the border and were

6 told that it was closed. They were given food and sent back Istok. He

7 reported that the VJ had treated them properly.

8 P1306 of 16 April 1999 is a further example that Pavkovic's

9 orders in this regard were being implemented. The preamble reads:

10 "Due to the operations of the NATO air forces and the remaining

11 terrorist forces against civilian targets, every day the civilian

12 population in the corps zone is exposed to direct attacks which seriously

13 threatens its safety."

14 The document then sets out very specific orders for the care of

15 the civilian population. Pristina Corps commander Lazarevic issued this

16 very specific order to his subordinate units and indicated that he would

17 personally bring to account anyone who would violate the order. The

18 Trial Chamber, however, used this document only to show that Lazarevic

19 was aware of the massive displacement of the population. See Volume III,

20 paragraph 851.

21 They did report the protection language in paragraph 902,

22 however. Exhibit 4D350, 19 April 1999, is another very strong order from

23 Pavkovic to the units commanded by him regarding the treatment of the

24 Albanian civilian population.

25 It required accommodation, food, medical care. It required the

Page 321

1 designation of safe villages where they could be accommodated. The order

2 says:

3 "Monitor the movements of the civilian population in your zones

4 of responsibility daily and ensure they have the necessary protection and

5 can return to their homes or to sectors outside the combat operation

6 zones."

7 In paragraph 720 of Volume III, the Trial Chamber mentioned that

8 it was clear that Pavkovic was aware of the confiscation of identity

9 documents based on his OTP interview. He also said in the interview that

10 he established that no VJ personnel were involved and that he sent a

11 report about it to the Supreme Command Staff. And in this document,

12 4D350 in paragraph 5, he clearly prevented the VJ from doing so. The

13 paragraph reads:

14 "Use vigorous measures to prevent personal items and private

15 property being taken from the refugee population. Take measures to

16 prosecute violators."

17 This order was transmitted down the chain of command as can be

18 seen from the following: 5D201, 19 April; 5D1033, 20 April; 5D1004,

19 20 April, all from lower units under his authority. And it's clear that

20 they were being implemented.

21 With regard to these efforts, the Chamber in Volume III,

22 paragraph 765 made this conclusion:

23 "Noting the statement relating to the security situation in

24 Kosovo to prepare these actions and mask our actions with undertakings

25 for civilians made by Minic in Pavkovic's presence at a Joint Command

Page 322

1 meeting in August 1998 at P1468, pages 52 to 53, and noting K90's

2 evidence that Kosovo Albanians were prevented from leaving areas in which

3 the VJ was operating because that would have left the VJ without the

4 protection of surrounding civilians and thus vulnerable to NATO attacks,

5 T 9408, the Chamber does not consider these to be genuine measures to

6 limit the criminal offending occurring in Kosovo."

7 With respect, I must say that this makes no sense. The reference

8 to a statement by Minic eight months earlier in a Joint Command meeting

9 being somehow related to the events of April 1999, if you look at what

10 Minic said in P1468, it's impossible to tell what he's talking about. It

11 has something to do with a media report about something going on in

12 Junik. It's an absolutely amazing jump to suggest that he's looking

13 forward to April of 1999 when he makes that remark and that Pavkovic

14 understood it as such.

15 Second, to suggest that the order and similar orders at the time

16 were not genuine is also ridiculous. These orders went from Pavkovic to

17 all units under his command, from Lazarevic to all units under his

18 command. To suggest that they were not genuine, it would be necessary

19 for there to be some evidence that there was then a communication that

20 these orders were to be ignored. They were top secret orders, they were

21 confidential orders, they weren't public. There is not one shred of such

22 evidence, that they should be ignored. These documents probably only

23 became public for the first time at this Tribunal. There's certainly no

24 evidence they were public when issued.

25 So what we have are two competing reasonable conclusions or may

Page 323

1 be reasonable conclusions. A reasonable Trial Chamber must adopt that

2 consistent with innocence and this Trial Chamber did not.

3 In Volume III, paragraph 1172, the Chamber went beyond the

4 confines of the indictment and emphasised evidence of violence and

5 intimidation in other locations based on the testimony of three former VJ

6 members, K90, K73, and K54. K90 described how his unit expelled the

7 Kosovo Albanians from their homes during the NATO campaign. K90's

8 written statement was admitted into evidence. The statement was written

9 in English and this is an important thing to be understood, the way these

10 statements were taken. They would interview the witness and the

11 statement would be written down in English and typed up and printed out

12 in English, and then they would -- an interpreter would read that

13 statement to the witness and the witness would then be asked to sign it.

14 That's what happened with K90's written statement. But he said in court

15 that he wasn't quite sure it was read back to him. That's at T 9309. As

16 to its language talking about expelling villagers, he said in his

17 testimony in court that the word "expulsion" in his statement was not a

18 correct translation. He said villagers were relocated basically for

19 their own safety. That's at T 9298. The Trial Court really failed to

20 clarify that this witness contended that his written statement was not

21 correct. He gave his testimony in court, under oath, subject to

22 cross-examination. Such testimony should always be superior to a

23 questionable written statement.

24 K90 in his testimony in court said this:

25 "I can guarantee that nobody could or was allowed to take

Page 324

1 anything with them throughout the war in Kosovo. In my unit, I don't

2 know about the other units, but in the unit where I served, nobody was

3 allowed to touch anything that belonged to somebody else. People that

4 were caught doing that were prosecuted and ended up in prison." That's

5 T 9303.

6 K73, transcript 3324, describes helping an elderly Albanian

7 couple. He says:

8 "Quite simply, we respected these people and tried to help them

9 in every conceivable way to do something for them."

10 Now, for some reason, at that point as he made that statement,

11 Judge Bonomy interrupted the testimony and said:

12 "... exploration of rather immaterial events, Mr. Hannis,

13 please."

14 And then Hannis says to the witness:

15 "Okay, let me stop you there."

16 At transcript 3367 the witness says:

17 "I never shot at civilians, at women, at children. That goes

18 against the grain of all military principles in the Army of Yugoslavia

19 and of my unit. We never did that. I swear, I always told my soldiers,

20 my subordinates, 'If I ever hear that any one of you, even if I hear of

21 such a thing, I don't even have to see it, that any one of you kills

22 civilians, raped women, or did such obnoxious things, I'm going to be

23 your prosecutor and executioner.'

24 "I assert before this Court that my unit never committed crimes,

25 counsel ..."

Page 325

1 T 3380 and 81, K-73 says the reason for the removal action was

2 that KLA were in civilian clothing, hiding among the Albanian civilians,

3 that they were to send them to Korenica, they were ordered to send them

4 to Korenica where the police could check them against lists of KLA

5 members. He agrees that there was a military reason for this action, to

6 try to locate KLA soldiers and remove them as combatants from among the

7 civilian population. So these people actually were sent to Korenica and

8 something pretty horrible happened there, many of them were killed.

9 The witness and his unit was later assigned with Lazarevic as

10 body-guards. He said during the time he was assigned as a body-guard to

11 Lazarevic in Pristina he never saw Pavkovic, didn't see him anywhere.

12 That's T 3392. There's controversy about a Pavkovic speech where he was

13 alleged to have said: We need to clean our backs of Albanians. This

14 witness says what that meant was to clean our backs of the KLA and break

15 down or break up their units and incapacitate them in order for us to be

16 able to fight NATO without having to worry about them being behind our

17 backs. At that time they were expecting a land invasion by NATO and they

18 couldn't face that land invasion if KLA was also behind them and they

19 were basically surrounded by troops and that makes sense.

20 K54 did say that Albanians were expelled from Petrovo Selo, the

21 purpose was not clear, and he definitely did not say that they left

22 Kosovo or were forced to leave Kosovo. With the bombing nearby they may

23 have been relocated for their safety. It's simply not clear, and no

24 Court should conclude beyond reasonable that he's talking about forced

25 expulsions in accordance with the alleged JCE plan.

Page 326

1 I've got more information here about arming and disarming, but I

2 think we've talked about that enough and I'm going to skip that.

3 I want to go to some more about the breaches of the October

4 Agreements. This is ground three of our appeal. It's discussed by the

5 Trial Chamber in Volume III, paragraph 685 through 690 under the heading

6 "Breaches of the October Agreements." The claim is that Pavkovic

7 breached the October Agreements by bringing VJ units into Kosovo. This

8 claim is simply not true, it's not supported by any evidence. The

9 context of the actual breaches is this: Due to the restrictions on the

10 VJ imposed by the October Agreements, the KLA was able to largely rebuild

11 itself and reoccupy many areas that had been abandoned. As 1999 began,

12 the threat of NATO intervention increased. The Rambouillet conference

13 was organised and the success of the peace process diminished. The FRY

14 began filling a need to prepare for an invasion. Thus, there was a need

15 to restore troop strength to Kosovo where KLA had been building. This

16 was not a Pavkovic programme but one activated at the highest levels of

17 the FRY government.

18 On January 16 1999, General Ojdanic issued Grom 3, his directive

19 based on the projected introduction by force of a multi-national NATO

20 brigade into Kosovo. It envisioned the additional build-up of VJ forces

21 in Kosovo which had recently begun. It assigned specific

22 responsibilities to the 3rd Army in that regard. It's an important

23 document to achieve an understanding of the alleged breaches. It's

24 3D690.

25 I would refer Your Honours to 3D557 at page 7, that's a

Page 327

1 3 December 1998 document in which Dimitrijevic tells the collegium that

2 the KLA has not been restricted and are rebuilding and are a future

3 threat. 3D1025 of 6 December 1998, Dimitrijevic receives a security

4 organ report on KLA build-up in the Podujevo area. 3D1036 of

5 26 December, Dimitrijevic receives a security organ report that KLA has

6 trenches and bunkers along the road near Podujevo and are firing on the

7 VJ moving along that road. P928, 24 December collegium meeting,

8 Dimitrijevic says this:

9 "The increasing number of terrorist acts against Serbs is a

10 special danger at the moment, as the intent is to intimidate them and

11 encourage them to move out of Kosovo and Metohija as well as to bring

12 terrorist activities into urban areas."

13 At this moment this occurs most frequently in the area of

14 Podujevo, where the Serbian villages of Obrandza, Pirane, and Velika Reka

15 have been almost completely abandoned.

16 P936, 14 January 1999, another collegium meeting, Kosovac lists

17 units relocated from peace-time garrisons to Kosovo and subordinated to

18 the Pristina Corps. These units were sent pursuant to a special order by

19 General Ojdanic, Pavkovic not involved. Dimitrijevic, on page 11,

20 proposes that additional forces may be necessary in Kosovo to deal with

21 the terrorist threat.

22 Volume III, paragraph 689, the Chamber says:

23 "In early 1999, Pavkovic brought a number of units into Kosovo to

24 augment the forces of the VJ."

25 The sentence has no cite at all but is probably covered by the

Page 328

1 remainder of the paragraph where this is said:

2 "Pavkovic brought the 72nd Special Brigade into the interior of

3 Kosovo prior to 25 February 1999 despite an instruction from Ojdanic to

4 keep it in the border belt area."

5 This is covered well and completely in our brief beginning at

6 paragraph 164. I'd only add the following. Exhibit P1948 is the Ojdanic

7 order regarding this unit. You'll see in paragraph 1 of that order that

8 the purpose for it being subordinated to the 3rd Army command was - these

9 are Ojdanic's words - "carrying out anti-terrorist and anti-sabotage

10 tasks." These are tasks that could only be carried out in Kosovo. So

11 clearly this was an order that that 72nd Brigade be sent to Kosovo.

12 Nothing in this order says anything about it being kept at the border and

13 kept out of Kosovo.

14 P941, a collegium meeting, Ojdanic says at page 24 that he

15 disagreed with the proposal for the 72nd Military Police Battalion to be

16 deployed to Kosovo, but he signed the order doing it. So why does he say

17 at a collegium meeting he disagreed with it? And then he says he ordered

18 that it should be deployed at the edges of Kosovo; that's also not true,

19 he didn't order that. He's now distressed to learn that they've been

20 transferred to Kosovo and split up. He says this only after Dimitrijevic

21 complains that the units should not have been moved without his having

22 being consulted. That's page 16. It's important to know that Ojdanic

23 did absolutely nothing after he said he ordered that it be kept at the

24 border, he did absolutely nothing to bring it back out of Kosovo.

25 He and Dimitrijevic both knew that it was operating inside Kosovo

Page 329

1 and that's clear by a security organ report of 2 March 1999 reporting a

2 successful mission having been carried out by this unit. We'll never

3 know what Ojdanic was doing in this meeting and why he was saying the

4 things he was saying because it's totally contrary to his orders.

5 Pavkovic says in his interview at P1319 -- or he did not say that

6 he brought additional troops into Kosovo. He said the VJ did that and

7 that's a true statement. It was ordered and organised at the highest

8 level. The evidence is clear. It is not something that he could do on

9 his own.

10 Then on 6 March 1999, the Supreme Command Staff, Ojdanic, ordered

11 the transfer of the 37th Motorised Brigade from the 2nd Army to the

12 3rd Army "due to the threat to the security of the Federal Republic of

13 Yugoslavia in the zone of the Pristina Corps, in order to provide

14 appropriate forces for implementation of tasks of the 3rd Army, and

15 pursuant to Articles 5 and 6 of the Law on the Yugoslav Army."

16 5D261, 13 March 1999, the General Staff in an order signed by

17 deputy chief General Marjanovic ordered mobilisation and/or partial

18 mobilisation of a number of units, ordering their resubordination. The

19 252nd Armoured Brigade from the 1st Army to the 3rd Army. The Mechanised

20 Battalion of the 211th was sent from Kursumlijska Banja to Malo Kosovo

21 which is near Podujevo. In 3D683, not cited by the Trial Chamber, 16

22 March of 1999, the General Staff by Marjanovic again ordered the

23 72nd Special Brigade Reconnaissance and Sabotage Battalion subordinated

24 to the 3rd Army. No request by Pavkovic is shown in the preamble or in

25 the evidence.

Page 330

1 JUDGE LIU: Well, Mr. Ackerman, I wonder whether it's the right

2 time for us to stop. I'll give you ten more minutes after we resume.

3 MR. ACKERMAN: Okay. That's fine with me.

4 JUDGE LIU: Yes, we'll have a 30-minute break. We'll resume at

5 ten minutes to 12.00.

6 MR. ACKERMAN: Thank you.

7 --- Recess taken at 11.20 a.m.

8 --- On resuming at 11.51 a.m.

9 JUDGE LIU: Yes, Mr. Ackerman, you may proceed.

10 MR. ACKERMAN: Thank you, Your Honour. I'm going to conclude

11 very briefly with the subject --

12 THE INTERPRETER: The interpreters note that they do not have

13 counsel's text. Kindly speak slowly.

14 MR. ACKERMAN: Thank you, interpreters.

15 Conclude very quickly with this. There is simply no evidence,

16 testimony or otherwise, that would support the conclusion that Pavkovic

17 brought VJ units into Kosovo in violation of the October Agreements. The

18 General Staff ordered all additions to VJ forces in Kosovo. On two or

19 three instances these were at the request of Pavkovic, but it remains

20 that all transfers to Kosovo were on Supreme Command Staff orders not

21 3rd Army orders. No reasonable Trial Chamber could reach the conclusion

22 that the Trial Chamber made in this regard.

23 Now, Your Honours, for the little bit of time that's left, I want

24 to move to one of my pet-peeve documents. This is P1439, and this

25 document was heavily relied on by the Prosecutor and by the Trial Chamber

Page 331

1 to establish that Pavkovic was violating orders of his superior,

2 Samardzic.

3 On 5 October of 1998, Pavkovic sent a document to Samardzic and

4 the Trial Chamber misinterpreted its meaning partly due to translation

5 difficulties and partly due to ignoring very important testimony.

6 Paragraph 2 speaks of the plan authorised by the president that

7 envisioned the formation of rapid intervention forces. Pavkovic then

8 says that he telephones Samardzic on return from a Joint Command meeting

9 on 19 and 20 September and informed him of a Joint Command decision to

10 form rapid intervention forces. He then sent that decision to Samardzic,

11 which Samardzic rejected in his order 168-262 of 3 October. Because of

12 the need to carry forward with the plan as set out in paragraph 2 and the

13 denial of the formation of rapid intervention forces, he is now asking

14 the 3rd Army command to determine the composition of forces to carry out

15 the plan ordered by the president without the use of rapid intervention

16 forces. The preamble reference in this document of 5 October 1998 refers

17 to a 3rd Army order, 168-262 of 3 October. In paragraph 1 of this

18 document he informs Samardzic that he has not formed any new groups in

19 violation of the order forbidding him to do so of 3 October. The matter

20 is complicated by the fact that the 3 October order number 168-262 is not

21 in evidence in this case. But it's clarified, however, by testimony in

22 the case. And the controversy about this is is paragraph 1 says this:

23 "Contrary to your orders, Pristina Corps command has not formed

24 any new combat groups."

25 And actually, that's a mistranslation. It should say something

Page 332

1 like:

2 "The Pristina Corps command has not formed combat groups as you

3 have ordered."

4 So it wasn't violating any kind of an order and that becomes

5 clear.

6 On October 19th, the witness Radinovic is being questioned by

7 Judge Bonomy regarding this document. It's clear that Judge Bonomy

8 believes because of the English translation that it shows that Pavkovic

9 has violated a Samardzic order, and Radinovic has trouble understanding

10 the question because he's looking at the B/C/S version of the document.

11 So he sees something different. Bonomy refers him -- Judge Bonomy refers

12 him to paragraph 1 and the language contrary to your orders. Then he

13 refers him to the second paragraph, under number 2, where Pavkovic points

14 out that he calls Samardzic after the JC meeting to inform him of the

15 decision to establish rapid deployment forces. And Bonomy then asks him

16 how he reads this situation. Radinovic says that the document indicates

17 the commander did not allow the establishment of the rapid deployment

18 force. And then the Judge asks:

19 "But does it not look as though General Pavkovic just went ahead

20 and did it?"

21 Radinovic says:

22 "Well, he probably proposed that because the combat groups that

23 had been established earlier were engaged in other tasks and there would

24 be a need to intervene and there aren't any appropriate forces for that,

25 hence his request to have that kind of force created."

Page 333

1 That's T 17340 and 341. So Radinovic clearly sees this document

2 as a request to create some kind of force to replace the combat groups

3 that had been denied.

4 Much earlier in the trial, Prosecutor Hannis brought this

5 document, P1439, to the attention of Aleksandar Vasiljevic. Hannis also

6 believed it to be evidence that Pavkovic had disobeyed a Samardzic order.

7 Vasiljevic's testimony is even clearer. Again, Vasiljevic is looking at

8 a B/C/S version of this document. Prosecutor Hannis showed him the

9 language from paragraph 1, saying, "Contrary to your orders the Pristina

10 Corps has not formed any new combat groups," and then asks him this:

11 "Under what circumstances was it permissible for a subordinate to

12 disobey an order of a superior commander?"

13 Vasiljevic answers that properly regarding the constitution and

14 the laws and then says:

15 "Now, what is this here? I don't think there's any controversy

16 here. It was just stated that the Pristina Corps had not formed these

17 new combat groups yet."

18 He is then referred to language under paragraph 2 and asked what

19 this says about the relative relations between the 3rd Army, the Pristina

20 Corps, and the Joint Command, and Vasiljevic answers:

21 "I think that the commander of the 3rd Army still has

22 jurisdiction over the command of the Pristina Corps. And if you read

23 this, the first paragraph, it says here that the Pristina Corps did not

24 form combat groups in contravention of your order, and the order actually

25 forbade the establishment, the formation, of such groups. They were not

Page 334

1 formed and this was not in contravention; in other words, the order was

2 complied with."

3 At that point the Prosecutor went on to other matters. That's

4 T 9093 to 95. The Prosecution did not even argue in their final brief

5 before the Trial Court that this document showed Pavkovic disobeying a

6 Samardzic order. The two military witnesses had made it so clear that

7 the document was being misread.

8 In response to our supplementary brief we had an annex attached

9 that showed a huge number of villages that were outside the border belt

10 that are in various orders and reports during a time when it was being

11 contended that the VJ was not operating outside the border belt properly.

12 And the Prosecution challenged that annex that we didn't cite that there

13 was any evidence for it. The evidence, Your Honours, is 4D381, it's a

14 map. It's a big map, and it's easy to find all of those villages outside

15 the border belt on that map.

16 I think my time has virtually expired and I simply want to say to

17 you that I have another hour or so that I would like to tell you about

18 some other things and I don't have time to do that, and I think they're

19 important things that you should know but I haven't got time to do it.

20 Maybe I will get to some of them a little later.

21 What I would really like to emphasise based upon the things I've

22 told you this morning is that you've got to be very careful about

23 accepting the pronouncements of the Trial Chamber without looking behind

24 them to see what -- where the evidence is or if there is any. And I've

25 shown you several examples today where there is none behind those

Page 335

1 pronouncements and I could show you several more, and within five minutes

2 or so I could probably find another one, that quickly, because all you

3 have to do is look at the pronouncement, look at the citation and you'll

4 find that it is not what it is said to be. So I hope you will pay that

5 kind of attention to the evidence in this case because the evidence is

6 what's important, not what the Trial Chamber said.

7 Thank you very much.

8 JUDGE LIU: Thank you very much.

9 Yes, Judge Guney has a question.

10 Mr. Ackerman.

11 JUDGE GUNEY: Mr. Ackerman.

12 JUDGE LIU: Judge Guney has a question.

13 JUDGE GUNEY: Mr. Ackerman, as you know, on the 21st July 1998, a

14 plan comprising both military and political measures for suppression and

15 combatting terrorism was adopted. What were the measures, immediate and

16 important measures, taken following this plan which was approved in the

17 Milosevic residence in Belgrade? Could you please enlighten us on this

18 respect?

19 MR. ACKERMAN: This is a very important document, Your Honour,

20 and you've hit on one that's very important to this case. The

21 Prosecution was contending throughout the Prosecution case that the VJ

22 was being used outside the border belt in Kosovo mainly by Pavkovic

23 without orders bypassing the chain of command, and that that was improper

24 and illegal and that it couldn't be done. And it came as a significant

25 surprise to the Prosecution when we brought this document, that's 4D139,

Page 336

1 to the attention of a witness in the case, and then 4D140, which was the

2 3rd Army version of that order, and it was -- 4D137, I'm just told is

3 what it is. In any event, it authorised and ordered by Perisic who just

4 four or five days before had told Milosevic the VJ shouldn't be used

5 outside the border belt because it was illegal, nobody was ever able to

6 show us any law that made it illegal and still haven't been able to, but

7 that was Perisic's claim. Anyhow, this order ordered the use of the VJ

8 outside the border belt. The order was then -- became a 3rd Army order

9 that ordered immediate use of the VJ outside the border belt. And

10 finally, that became a matter that even the Trial Chamber agreed

11 authorised the use of the VJ outside the border belt as of 21 July. Have

12 I answered your question?

13 JUDGE GUNEY: Thank you.

14 MR. ACKERMAN: You're welcome.

15 JUDGE LIU: Yes, Judge T, please.

16 JUDGE TUZMUKHAMEDOV: Thank you.

17 Mr. Ackerman, maybe this belongs to the hour that you don't have,

18 but you were approaching the issue of an agreement and in your appeal

19 brief you contend that the Trial Chamber erred with regard to the

20 existence of JCE since there should have been, and I quote, paragraph 25,

21 "a real plan emanating from real agreement." And your brief continues:

22 "It does not materialise out of thin air or out of events on the

23 ground. There must be an agreement."

24 Could you please elaborate on your -- upon this argument and

25 explain what you mean by the "real agreement." Of course if you look

Page 337

1 into the jurisprudence of the Tribunals, you would find a suggestion that

2 a common purpose does not require a specific and formal agreement with

3 all the seals and fancy bands. But at the same time, if you look at the

4 jurisprudence, you would find that there should exist an understanding,

5 an arrangement, that might be amounting to an agreement. Thank you.

6 MR. ACKERMAN: There's a long answer and a short answer. I'll

7 try the short answer and if you want more, I can do that.

8 The problem is this: By taking a set of facts and trying to take

9 those facts and find just because of the way they relate to each other

10 that there must have been some kind of an agreement and, therefore, there

11 was a JCE is kind of a dangerous road to go down and a difficult road to

12 go down. Because you have to prove things beyond a reasonable doubt in a

13 criminal court. And even if the law, as it says, that it can arise out

14 of the situation, it still -- you still have to have the group that's

15 part of the JCE having an agreement among themselves as to what the

16 purpose of that is and assisting each other in that process. So even

17 though there does -- there's no formal agreement, there's no written

18 document or anything like that, there has to be some kind of

19 communication between them about this is the goal that we're going to

20 pursue and we're going to do it together. And that's what's missing from

21 the evidence in this case, is no indication that there was anything like

22 that. There are hundreds of pages of meetings of the collegium of the

23 General Staff, hundreds of pages of documents at that very, very high

24 level and never in any of those documents is there any, any, discussion

25 of a plan to expel Kosovo Albanians for the reasons suggested. And so

Page 338

1 what I'm saying is that without some evidence that these people had a

2 plan that they were working together on that would outweigh beyond a

3 reasonable doubt that it happened in a different manner, it doesn't prove

4 a JCE.

5 Does that answer you?

6 JUDGE TUZMUKHAMEDOV: So was this a long answer or a short

7 answer?

8 MR. ACKERMAN: That was the short one.

9 JUDGE TUZMUKHAMEDOV: I would need a shorter answer to what the

10 real agreement is.

11 MR. ACKERMAN: Well I don't think there is a real agreement. I

12 don't think there was any agreement at all. This was a situation --

13 JUDGE TUZMUKHAMEDOV: I'm sorry, I'm just looking for a

14 definition from Ackerman what the real agreement is.

15 MR. ACKERMAN: Oh. The real agreement is that there is some

16 evidence showing that everybody that is a member of the joint criminal

17 enterprise had the same goal in mind, they agreed with each other about

18 what they were doing; that's the real agreement. If that's not there,

19 there's no JCE.

20 JUDGE TUZMUKHAMEDOV: Okay. Thank you.

21 JUDGE LIU: Judge Pocar has a question.

22 JUDGE POCAR: Following on your answer, Mr. Ackerman, are you --

23 I want to try to understand your point. Are you suggesting that the

24 agreement to be real cannot be proved by circumstantial evidence?

25 MR. ACKERMAN: No, it can, but circumstantial evidence is pretty

Page 339

1 tricky. It has to outweigh anything else. And again, we're back at

2 beyond a reasonable doubt thing. But yes, you don't have to have a

3 written agreement. That's what the Tribunal says. I don't have to agree

4 with the law that has been established in this Tribunal, but the law is

5 that it can arise without any proof of an actual written agreement or a

6 sit down and discuss kind of agreement that is recorded in any way, so

7 yes, it can arise.

8 JUDGE POCAR: Okay. Thank you.

9 JUDGE LIU: Well, I think it's time to hear the response from the

10 Prosecution.

11 MR. SCHNEIDER: Thank you, Your Honour. If I might just have a

12 moment to set up and get ready.

13 If I might have just one more moment. We'll need just a moment,

14 Your Honour, to distribute some charts I've prepared for today to help

15 with the -- my submission. So if I could just wait a moment to have

16 those distributed to everyone in the courtroom so they can follow along.

17 Hopefully you'll find them helpful.

18 JUDGE LIU: Well, I understand that this is just for the help for

19 your presentation?

20 MR. SCHNEIDER: Exactly, Your Honour.

21 JUDGE LIU: It is not evidence in this case?

22 MR. SCHNEIDER: It is not evidence, it is not part of the record.

23 It is merely a list of particular findings by the Trial Chamber I'll be

24 referring to during the course of my submission, but of course, as you

25 correctly point out, we would not call this evidence in any way.

Page 340

1 JUDGE LIU: Thank you. You may proceed.

2 MR. SCHNEIDER: Thank you, Your Honour.

3 Your Honours, General Pavkovic was a key member of the joint

4 criminal enterprise. As 3rd Army commander in 1999, he ordered his

5 troops into joint operations with the MUP throughout Kosovo with the

6 intent that they engage in a campaign of terror and violence to drive out

7 Kosovo Albanians. These operations resulted in murders, sexual assaults,

8 and the displacement of over 700.000 Kosovo Albanians.

9 He covered up his subordinates' crimes or else took no meaningful

10 steps in response, thereby creating an atmosphere where perpetrators felt

11 they could and did get away with further crimes. The Trial Chamber

12 reasonably found, based on this and other evidence, that Pavkovic shared

13 the intent of his fellow JCE members, Nikola Sainovic and Sreten Lukic,

14 and that Pavkovic made a significant contribution to the common criminal

15 plan.

16 Our submissions today will focus on these two points.

17 Specifically, I will discuss Pavkovic's mens rea and I will answer

18 Your Honours' questions relating to JCE I and JCE 3 as they relate to

19 Pavkovic. My colleague Mr. Menon will then address Your Honours'

20 question on the actus reus as it relates to Pavkovic.

21 As a preliminary matter, we would note that today counsel for

22 Pavkovic has misconstrued the standard for review on appeal. He has

23 broadly repeated trial submissions rather than, as he should have,

24 demonstrating that no reasonable Trial Chamber could have reached the

25 factual finding in question based on the totality of the evidence. For

Page 341

1 example, he today has highlighted certain exhibits, isolated exhibits,

2 that are favourable to his position without addressing or rebutting

3 contrary Trial Chamber findings. A good example of this would be his

4 discussion of the ineffective measures that Trial Chamber took Pavkovic

5 took.

6 Another example is a failure to read the trial judgement as a

7 whole. An example of this would be the earlier discussion today of the

8 witness K90. The Trial Chamber was well aware that there was a change,

9 difference, I'll say, between K90's written statement where he used the

10 word "expelled," and his oral testimony where he discussed -- he

11 explained it was "relocated." The Trial Chamber specifically discussed

12 this relevant point at Volume II, paragraph 74, and further explained why

13 it was reasonable to rely on K90 as a credible witness on this point and

14 others.

15 Because today we're only addressing these two points on mens rea

16 and actus reus, we won't go into his challenges regarding the existence

17 of the common purpose. We would rely on Mr. Kremer's submissions in that

18 regard from yesterday, and that's in the appeals transcript at page 217

19 to 232, and is also dealt with in our response brief to Pavkovic,

20 paragraphs 15 to 28.

21 At this time, Your Honours, I'd like to turn to Pavkovic's shared

22 intent for the JCE, and the first -- by doing so, I will address what we

23 have numbered as question ten in Your Honours' addendum, which I'll read

24 so there is no confusion.

25 "Discuss, as a legal matter as well as with respect to the

Page 342

1 particular Trial Chamber's findings for each appellant convicted of

2 JCE I, whether the actus reus and mens rea of a JCE member may be

3 fulfilled prior to the existence of the common purpose of the JCE."

4 I'm going to talk now about the mens rea part of this question.

5 My colleague Mr. Menon will subsequently discuss the actus reus.

6 Yesterday Ms. Martin Salgado for the Prosecution set out our

7 position on the law for this question. As she clarified, we understand

8 Your Honours to be further asking whether each JCE accused was found to

9 have shared the intent for the JCE prior to the existence of the common

10 purpose. The short answer for Pavkovic is no. The Trial Chamber found

11 that Pavkovic shared the intent for the JCE based on a wide range of

12 evidence arising during the 1999 conflict, during the time the crimes

13 were committed. For example, Pavkovic ordered on May 7th, 1999, that his

14 troops control the movements of Kosovo Albanian civilians. And that's at

15 judgement Volume III, paragraph 736.

16 Furthermore, during the 1999 conflict, Pavkovic did nothing in

17 the face of massive forcible displacement and crimes of violence or else

18 covered up crimes. He bypassed the chain of command to work with

19 Milosevic on the issue of Kosovo.

20 In addition to this evidence from 1999, the Trial Chamber also

21 looked at other evidence that revealed the pattern of Pavkovic's

22 behaviour. For example, Pavkovic covered up crimes in 1998, just as he

23 would do in 1999. He violated the chain of command to work directly with

24 Milosevic in 1998, just as he would do in 1999. As the Trial Chamber

25 said in Volume III, paragraph 665, he advanced his aggressive strategy of

Page 343

1 using the VJ and MUP together in Kosovo in 1998, just as he would do - as

2 other Trial Chamber's findings show - in 1999.

3 The Trial Chamber properly examined the totality of Pavkovic's

4 conduct, the pattern of this conduct through 1998 and 1999, when finding

5 he shared the intent for the JCE I crimes.

6 We heard earlier today the assertion from the counsel for

7 Pavkovic that the 1998 evidence was irrelevant. I plan to show

8 otherwise. At this point, though, before we get to 1998, I'm going to

9 focus a bit more on the 1999 conflict and the Trial Chamber's focus on

10 evidence relating to Pavkovic from this time period. A good starting

11 point is our first slide.

12 This is the order I've just mentioned from May 7th, 1999, in the

13 midst of the conflict, from Pavkovic to his troops to control the

14 movement of the Kosovo Albanians. This is particular -- this document as

15 a whole is a comprehensive list -- I'm just pausing to make sure that

16 everyone is seeing the slide.

17 THE INTERPRETER: Interpreter's note: We are not provided with

18 the slide and we kindly ask the speaker to slow down in his presentation.

19 MR. SCHNEIDER: I apologise to the interpreters for my speed.

20 My understanding is we all have the slide in front of us.

21 Explaining yet again, this is a list of instructions to

22 Pavkovic's troops. Among various logistical and strategic goals, he adds

23 the following:

24 "Ensure complete control of the territory and movement of Siptar

25 civilians in your zones of responsibility."

Page 344

1 "Siptar" means Kosovo Albanians. Your Honours, this is what the

2 JCE boils down to, ensure control of Kosovo by ensuring control of the

3 movement of the Kosovo Albanian civilians. It's as simple as that. The

4 Trial Chamber reasonably, properly, focused on the discriminatory nature

5 of this order because it does not say "civilians," but makes a point to

6 say "Siptar civilians."

7 In line with this is our next slide. This is a report from

8 Pavkovic a few days later noting an attack by his troops on a village and

9 the resulting displacement of civilians. As you see in the highlighted

10 portion:

11 "A part of the units of the 7th Infantry Brigade and Pec Military

12 Detachment in an operation of routing the Siptar terrorist forces in the

13 sector ..."

14 And then it lists various villages. And then we go to the end:

15 "... and about 10.000 civilians from that sector were sent

16 towards Klina and Pec."

17 As the Trial Chamber noted, there's no reference to NATO bombing

18 at the time of this report, Volume III, paragraph 736, which is

19 Pavkovic's usual explanation for the flight of civilians. Rather, this

20 report is a straightforward account of how the VJ troops forced Kosovo

21 Albanian civilians out of their villages.

22 My next point, Your Honours, is that this May 7th order and

23 May 10th report are not isolated examples. What they do is make explicit

24 what had already been happening --

25 JUDGE LIU: I'm sorry, Judge T has a question.

Page 345

1 MR. SCHNEIDER: Certainly.

2 JUDGE TUZMUKHAMEDOV: Could we go back to that slide, please?

3 MR. SCHNEIDER: Yes.

4 JUDGE TUZMUKHAMEDOV: What does the first line say:

5 "In the past 24 hours NATO air forces have carried out ..." what?

6 MR. SCHNEIDER: If I could have a moment, Your Honour.

7 I have a larger, more legible copy which -- I'm sorry, one

8 moment, Your Honour.

9 JUDGE TUZMUKHAMEDOV: It should be 1.1.

10 MR. SCHNEIDER: Yes. In the past -- would you like me to read

11 that sentence?

12 JUDGE TUZMUKHAMEDOV: Yes, please.

13 MR. SCHNEIDER: Certainly.

14 JUDGE TUZMUKHAMEDOV: I left my glasses back in my office.

15 MR. SCHNEIDER: I -- I have assistance as well. I could not do

16 it --

17 JUDGE TUZMUKHAMEDOV: I don't have binoculars to read from your

18 list.

19 MR. SCHNEIDER: The first sentence, and this is again

20 Exhibit 4D315, paragraph 1.1:

21 "In the past 24 hours, NATO air forces have carried out

22 low-intensity actions but is intensively engaged in monitoring the whole

23 zone of the army."

24 JUDGE TUZMUKHAMEDOV: Thank you.

25 MR. SCHNEIDER: To return to my submissions, Your Honour, this

Page 346

1 report that we've just looked at a bit more in detail and the May 7th

2 order are making explicit what has already been happening since

3 March 1999, the mass forcible displacement and the other violent crimes

4 which Pavkovic was well informed of and could see for himself from the

5 ground in Pristina. So now I'm going to turn to Pavkovic's awareness

6 during the 1999 conflict of the crimes of his troops and the MUP. We

7 agree with counsel for Pavkovic that:

8 "He could only be expected to deal with what he knew about

9 specifically at the time ..." and that's from the appeal brief for the

10 Defence at paragraph 196. Well, let's look now at what he did know about

11 specifically at the time. And now I would turn to the chart we've had

12 distributed and you'll see there's two years, 1998/1999. I'll be

13 focusing on the 1999 chart. I'll just pause and make sure everyone has a

14 copy.

15 Your Honour, this is a table listing the Trial Chamber's findings

16 of the examples it focused on in relation to Pavkovic as to his awareness

17 of VJ and MUP crimes in 1999. These are orders and reports that were

18 received by Pavkovic or received -- received by him or issued from him or

19 meetings that he attended. For purposes of clarity, I've highlighted in

20 bold those that deal with forcible displacement. I'm just pausing to

21 make sure everyone is following the chart.

22 JUDGE LIU: Yes, you may proceed.

23 MR. SCHNEIDER: Okay. Thank you, Your Honour.

24 We've heard today, actually, a few challenges to some specific

25 examples on this chart, but really, the important point for my -- the

Page 347

1 important point is the sheer volume of examples that Pavkovic was aware

2 of the crimes of his subordinates and [Realtime transcript read in error

3 "in"] the MUP, starting from the very beginning in March 1999 and

4 reaching all the way through the end, including the indictment itself,

5 which is of course Your Honour's question I will be addressing later.

6 Apart from these specific examples, Pavkovic admitted that he

7 knew identification documents were being taken from Kosovo Albanians at

8 the border. That's at Volume III, paragraph 720. Pavkovic knew of

9 illegal takings and distribution of Kosovo Albanian property by the VJ

10 and military justice system in Volume III, paragraph 764. Moreover, in

11 1999, Pavkovic was in Kosovo more than 95 per cent of the time and

12 present in Pristina when thousands were being forcibly displaced. That's

13 at Volume III, paragraph 716 to 717. And as the Trial Chamber's findings

14 in Volume II, at paragraphs 838 and following, make clear, these

15 displacements went from March through May 1999.

16 Having looked at the sheer volume of information of crimes of

17 which Pavkovic became aware of, I'd like to turn to my next point: What

18 did he do in response? He lied about his ability to hold perpetrators

19 accountable. That's at Volume III, paragraph 757. He took ineffective

20 measures. What does he not do? He takes no meaningful steps to hold

21 them accountable, Volume III, paragraph 777, and he never refuses to

22 order the VJ in the joint operations with the MUP, Volume III,

23 paragraph 780. What Pavkovic did not do given this awareness of the

24 crimes in 1999 sheds light on his shared intent as the Trial Chamber

25 reasonably found.

Page 348

1 But there's one other thing Pavkovic did in response to some of

2 these crimes, the cover-ups. Pavkovic has argued in his appeal brief at

3 paragraph 223 that:

4 "The integral element of committing a crime is usually covering

5 up the evidence of that crime."

6 We couldn't agree more. What, then, are we to make of the fact

7 that Pavkovic himself underreported crimes in 1999 during the campaign of

8 terror and violence to drive out the Kosovo Albanians, paragraph [sic] 3,

9 776. And after first being caught in May 1999, he went ahead and did it

10 again in June 1999. And that's Volume III, paragraph 737, 752, and 752

11 [sic].

12 Finally on this point of the cover-ups, it's important to note

13 that the two meetings in Belgrade on May 16th and 17th, 1999, to discuss

14 the crimes in Kosovo were the result of Pavkovic having been caught

15 underreporting crimes, Volume III, paragraphs 738 to 740.

16 So at this May 17th meeting with fellow JCE members Sainovic and

17 Milosevic and other people present at the meeting, when Pavkovic proposes

18 a commission to investigate, it is only possible because he'd already

19 been caught in his cover-up. In any event, he never followed up on this

20 idea for a commission, Volume III, paragraph 740.

21 The final point I'd like to address from 1999, during the time

22 the crimes were being committed, is Pavkovic's bypassing the chain of

23 command. He violated the chain of command so he could work directly with

24 Milosevic on the issue of Kosovo. For example, an example that's been

25 referred to earlier today, in April 1999 when Pavkovic and Milosevic

Page 349

1 planned an action together, it was left to Ojdanic, his superior, to

2 offer only suggestions about the proposed action, Volume III,

3 paragraphs 503, 534, and 705. We've heard today what counsel for

4 Pavkovic believes to have occurred during this particular incident. His

5 interpretation of the evidence and speculation does not rebut the

6 reasonableness of the Trial Chamber's finding based on the evidence it

7 cited.

8 Another example of this 1999 bypassing the chain of command came

9 in mid-June 1999 when Pavkovic was seen leaving Milosevic's office,

10 Volume III, paragraph 708. And Ojdanic commented that Pavkovic placed

11 more importance on keeping Sainovic informed than Ojdanic informed,

12 Volume III, paragraph 361.

13 Now that we've looked at this evidence from 1999 from the

14 conflict, let's turn to the other evidence that the Trial Chamber

15 examined which demonstrated the pattern of Pavkovic's behaviour, and

16 let's start where we left off. This is bypassing the chain of command in

17 1998 to work directly with Milosevic, just as he would do in 1999.

18 The Trial Chamber made extensive findings on this topic at

19 Volume III, paragraphs 642, 665. We've heard some again isolated

20 challenges today that do not address the totality of these findings and

21 the evidence cited therein. But rather than go into that, I'm going to

22 focus on why Pavkovic was well suited to work closely with Milosevic on

23 the issue of Kosovo, and to do so, we'll turn to our next slide.

24 This is a letter from Pavkovic to the 3rd Army command on

25 July 23rd, 1998, cited at Volume III, paragraph 652 of the judgement.

Page 350

1 Recall that at this time Pavkovic is Pristina Corps commander and not

2 3rd Army commander as he will later become.

3 As he says in the highlighted excerpts:

4 "If urgent measures are not taken, Kosovo will be lost

5 forever ..."

6 "I cannot resign myself to the fact that as a soldier" -- I'm

7 sorry, I'm at the -- that was obviously the first highlighted excerpt and

8 then I'll just start reading towards the bottom in the second excerpt.

9 "... I cannot resign myself to the fact that as a soldier I have

10 not done everything I was required to do in order to avoid such a

11 situation," in other words, avoid the loss of Kosovo.

12 The Trial Chamber noted at Volume III, paragraph 765, that this

13 letter demonstrated Pavkovic's determination to keep Kosovo which led him

14 to go beyond his normal duties, to do whatever it took. It's not a

15 coincidence that just two days before this letter, Pavkovic had been

16 promoted to lieutenant-general, Volume III, paragraph 649. And by the

17 end of the same year, 1998, Perisic and Samardzic who opposed Milosevic's

18 approach to Kosovo were out and Pavkovic had been promoted again.

19 I'd like to turn briefly to two other examples of Pavkovic's

20 approach as evidenced by his letter of his -- what he was willing to do

21 to keep control of Kosovo. The first example is the arming and disarming

22 of Albanians and non-Albanians. What the Trial Chamber found helped show

23 the shared intent, Volume III, 779. Pavkovic was fully aware of the

24 simmering ethnic tensions between non-Albanians and Albanians. As the

25 Trial Chamber summarised Pavkovic's own words, Volume III, paragraph 669,

Page 351

1 he stated that it is known from the previous historical period that it -

2 and the Trial Chamber explained this meant the conflict between the

3 Albanian and non-Albanian population - took place every time that events

4 of this kind happened in Kosovo and that crimes occurred when there were

5 such conflicts and people were protecting their villages.

6 As the Trial Chamber further held, despite this incendiary

7 situation, as the Trial Chamber described it, Pavkovic provided weapons

8 to the non-Albanian population while concurrently disarming the Kosovo

9 Albanian population. Again Volume III, paragraph 669.

10 The other example in line with Pavkovic's approach from the

11 July 23rd letter is how he violated Ojdanic's order by moving the

12 72nd Special Brigade in Kosovo's interior in early 1999, which the

13 Trial Chamber found help showed his shared intent. That's at Volume III,

14 paragraph 778. And the findings on the moving of the brigade can be

15 found at Volume III, 689 to 690. Pavkovic also moved his troops into

16 Kosovo in violation of the international agreements so they would be well

17 placed for operations in March 1999. That's at Volume III,

18 paragraph 690. He misled others in the VJ as to aggressive approach in

19 Kosovo by claiming that Pristina Corps and 3rd Army actions in Kosovo

20 were defensive only, were responses to attacks. In fact, these had been

21 preplanned by the army itself. Volume III, paragraphs 515 to 516, 546,

22 599, and 688.

23 So let's move away from these examples of Pavkovic's approach to

24 Kosovo and turn to a topic we've talked about before which goes again

25 into the pattern of his conduct, his awareness of crimes in 1999 - and

Page 352

1 now, of course, we're talking about 1998 - by the VJ and the MUP.

2 Pavkovic has argued in ground seven of his brief that he was not aware of

3 crimes in 1998. The chart I passed out would say otherwise, and I would

4 invite Your Honours to flip the page to the 1998. Again, as I mentioned

5 before, these reflect Trial Chamber -- these reflect what the

6 Trial Chamber focused on in relation to Pavkovic regarding his awareness

7 in 1998 of these crimes and are orders and reports received by Pavkovic

8 or issued from him or meetings he attended. Again, I've highlighted in

9 bold those that deal with forcible displacement.

10 Apart from the specific incidents on this time-line, Pavkovic

11 admitted that VJ members had committed arson in 1998, Volume III,

12 paragraph 672, and Pavkovic himself ordered VJ troops in the Drenica in

13 August 1998 contrary to superior orders, excessive force was used there,

14 and this resulted in displacement of Kosovo Albanians. Volume III,

15 paragraphs 658 and 774, as well as Volume I, paragraphs 894, 915, 919.

16 What does all this mean? This relates to Your Honours' question

17 about 1998 crimes and their relevance in this case. It shows that

18 Pavkovic knew his troops in the MUP had previously been successful in

19 expelling civilians through crimes of violence because it means he can

20 successfully deploy them once again in a campaign of terror and violence

21 that will result in mass expulsions.

22 Another pattern I'd like to highlight is what Pavkovic does in

23 response to crimes of his subordinates. He covers up. He underreports

24 in 1998, just as he would do in 1999. For example, he downplayed reports

25 of a massacre at Gornje Obrinje in September 1998, where a number of

Page 353

1 civilians had been killed, including women and children, in the course of

2 a VJ and MUP operation. Volume III, paragraphs 675 and 678; Volume I,

3 paragraph 912.

4 He passed on an order on July 7th, 1998, to avoid firing when

5 internationals are present, which the Trial Chamber noted was designed to

6 avoid detection of VJ crimes, paragraph [sic] 3, 673 and 678. He shifted

7 the blame in 1998 -- in September 1998 from VJ forces, accused of

8 displacement of civilians. Volume III, paragraph 674.

9 Working backwards now, we have Pavkovic's call to arms in

10 July 1998 to do whatever it takes. He's laying the groundwork up until

11 March 1999, in preparation for a massive campaign of displacement. Then,

12 after the campaign of terror and violence begins, he issues an order to

13 keep the Kosovo Albanians moving. He does nothing in the face of

14 forcible displacement or crimes of violence or else covers up the crimes.

15 So we have evidence from the 1999 conflict, from the time the crimes were

16 being committed, that is consistent with and connecting back to the 1998

17 evidence to show the pattern of Pavkovic's behaviour. When viewed as a

18 whole, this evidence shows that the Trial Chamber is reasonable to find

19 that Pavkovic shared the intent for the JCE along with Sainovic and

20 Lukic.

21 This concludes my answer to question ten.

22 The next question I'm going to address is what we've numbered as

23 your question 11:

24 "Discuss whether and under what circumstances the mens rea under

25 JCE I for deportation and other inhumane acts (forcible transfer) may be

Page 354

1 inferred from the accused's knowledge of crimes committed in 1998,

2 including crimes other than deportation and other inhumane acts ..."

3 As Ms. Monchy already explained yesterday in regarding Sainovic,

4 it was appropriate in the case of Pavkovic for the Trial Chamber to infer

5 his shared intent based upon -- based upon, among other factors, his

6 knowledge of the violent crimes committed in 1998 that resulted in mass

7 displacement. Before explaining why, I want to recall for a moment the

8 Trial Chamber's findings regarding these 1998 crimes. The Trial Chamber

9 found that in their operations against the KLA in 1998, FRY and Serbian

10 forces used heavy-handed tactics which forced over 200.000 civilians from

11 their villages. Volume I, paragraph 919; and Volume III, paragraph 90.

12 These tactics involved the burning and destruction of homes, intimidating

13 inhabitants to move out, firing artillery shells and killing civilians.

14 And this can be found in Volume I, between paragraphs 880 to 920.

15 Thus, even if the Trial Chamber did not specify the departure of

16 civilians from their homes in 1998 as forcible displacement, these

17 departures were clearly not voluntary or lawful under international

18 humanitarian law.

19 As to why - turning again to Pavkovic - it is appropriate for the

20 Trial Chamber to rely on these crimes, I'll just go back to what I

21 mentioned earlier from the 1998 chart. It provides notice to Pavkovic of

22 his troops and the MUP's propensity for violence. It shows that he can

23 successfully use these same troops, again in 1999, to achieve the same

24 results. In other words, a mass campaign of terror and violence

25 resulting in mass expulsions.

Page 355

1 As a general matter in response to this question, we would note

2 that an accused's knowledge of earlier crimes is simply a fact in the

3 case and that can be relied on as other facts in this case or others. So

4 here we have the use of the force -- Pavkovic's forces in 1999, the

5 widespread crimes committed in 1999. All the other findings the Trial

6 Chamber relied upon, all of which together, read as a whole, support the

7 Trial Chamber's finding as to his shared intent.

8 A final brief point on this. I would like to clarify for the

9 record that yesterday Ms. Monchy, when answering a question from

10 Judge Pocar, Your Honour, was recorded as saying "to possibly displace

11 the Kosovo Albanians in 1999," and the transcript cite is appeal

12 transcript page 263, line 8. Ms. Monchy actually said "forcibly

13 displace" not "possibly displace" and we'll request a check of that. But

14 at the very least, she meant to say "forcibly displace" and we want to

15 avoid any confusion in that regard. That would conclude on question 11,

16 1998 crimes. And I'll turn to what we've numbered as your question 4:

17 "Discuss the relevance of the indictment made public on

18 27 May 1999 on the mens rea of Sainovic and Pavkovic, given that the

19 indictment was made public after the last crime for which Sainovic and

20 Pavkovic were convicted was committed on 25 May 1999."

21 Contrary to the argument earlier today, the Trial Chamber

22 properly considered this indictment when assessing his shared intent. It

23 was relevant. As the Trial Chamber said at paragraph -- Volume III,

24 paragraph 765, his subsequent inaction is relevant to his mental state at

25 the time. In other words, Pavkovic failing to take any effective

Page 356

1 measures during the rest of 1999 and even during 2000, when he was

2 promoted to VJ Chief of Staff, showed that he intended the crimes in the

3 common purpose and is in line with the pattern of his failure to take

4 measures during the 1999 conflict itself.

5 As to arguments today that Pavkovic was not aware of this

6 indictment, the Trial Chamber reasonably found that he did based on the

7 findings [indiscernible] -- and particularly note in respect to Pavkovic

8 that he had previously received a letter directly from the ICTY

9 Prosecutor, so this was, in fact, the second time that the ICTY

10 Prosecutor had -- that Pavkovic had received notice from the ICTY as to

11 crimes occurring in 1999.

12 I'd like to turn at this point to the topic of JCE III and

13 Your Honours' questions in that regard. First question I'm going to deal

14 with is what we would have numbered as page number -- question 2:

15 "Discuss, with reference to the record, whether there would be

16 any effect on Pavkovic's appeal regarding his convictions pursuant to

17 JCE III, if the Appeals Chamber were to accept the Prosecution's argument

18 that the Trial Chamber applied an incorrect mens rea standard for JCE III

19 liability."

20 Your Honours, since the Trial Chamber found the JCE crimes of

21 murder and persecution through murder, sexual assault, and destruction of

22 religious property were foreseeable to Pavkovic under a higher standard

23 than required, its finding would clearly stand under the lower

24 possibility standard. In particular, we would note the Trial Chamber's

25 findings on JCE III with respect to Pavkovic at paragraphs 785 to 786.

Page 357

1 Your Honours, today we heard a hypothetical from the Defence that

2 is not this case since it assumes, contrary to the Trial Chamber's

3 finding, that there's no common purpose and it assumes, contrary to the

4 Trial Chamber's finding, that Pavkovic was not liable for the JCE I

5 crimes.

6 Finally, Your Honour, I'll turn to the other question, JCE III

7 question, for Pavkovic which is:

8 "Discuss, with reference to the record, whether ... the Appeals

9 Chamber were to grant the Prosecution's argument that the sexual assaults

10 of K62, K14, and K31 constituted persecutions, Pavkovic should be held

11 responsible for these persecutions pursuant to JCE III."

12 Your Honours, the answer is yes. The Trial Chamber already found

13 Pavkovic liable under JCE III for other sexual assaults committed during

14 the course of the JCE I crimes of deportation and forcible transfer. In

15 fact, it found, again, him liable for these sexual assaults under a

16 higher standard than required. With respect to the sexual assaults, the

17 Trial Chamber focused on his awareness of the VJ and MUP's propensity for

18 violence, and I would just note in this regard in particular the charts

19 that I passed out from 1998 and 1999 listing these crimes of violence.

20 The Trial Chamber also noted that the stated aim of the joint criminal

21 enterprise was to displace people for a campaign of terror and violence,

22 and that's at Volume III, paragraph 786. And the Trial Chamber further

23 noted specific evidence that Pavkovic was aware of sexual assaults,

24 Volume III, paragraph 785.

25 The Defence has raised challenges regarding the linkage of these

Page 358

1 crimes to himself. The linkage was properly established. I would note,

2 first as a general matter, that the Trial Chamber had found that the

3 required link had been established between the physical perpetrators and

4 at least one JCE member for all indicted crimes that were proven.

5 Volume III, paragraph 468, 783, and 1132. Specifically with regard to

6 the three sexual assaults mentioned in this question, I would read from

7 Volume II, paragraph 889:

8 "The Chamber ... finds it proved that three women were raped in

9 the course of the operation to remove large numbers of Kosovo Albanians

10 from Pristina town - K62 by three VJ or MUP personnel, K14 by a

11 policeman, and K31 by three VJ soldiers."

12 So his challenges based on the issue of linkage should be

13 dismissed.

14 As for his challenges as to whether these sexual assaults

15 amounted to persecution, we will be addressing this in our appeal

16 submissions on this Friday as part of the Prosecution appeal.

17 To conclude my submissions, Your Honour, the Trial Chamber

18 reasonably found that Pavkovic had the intent for the JCE I crimes and

19 the foreseeability for the JCE III crimes. His challenges on this issue

20 should be dismissed. And unless you have any questions, I will turn it

21 over to my colleague or perhaps it would be our break time.

22 I think we would certainly think a break would be appropriate

23 subject to any questions from Your Honours.

24 JUDGE LIU: Well, I see no questions from the floor, and we'll

25 break here and we'll resume at 2.30 this afternoon. Thank you.

Page 359

1 --- Luncheon recess taken at 12.53 p.m.

2 --- On resuming at 2.29 p.m.

3 JUDGE LIU: Good afternoon. We'll continue the response from the

4 Prosecution.

5 Yes. Yes.

6 MR. BAKRAC: [Interpretation] Your Honours, with your leave, if I

7 can inform you that our legal assistant, Mr. Cvijic has joined the

8 Lazarevic team this afternoon. Thank you.

9 JUDGE LIU: Thank you.

10 Yes.

11 MR. MENON: Good afternoon, Your Honours. As Mr. Schneider

12 indicated, I will be discussing Pavkovic's contribution to the JCE. In

13 doing so, I intend to answer Your Honours' question number 10 insofar as

14 it relates to the actus reus requirement for JCE liability.

15 As Ms. Martin Salgado clarified in her presentation yesterday, we

16 understand the Appeals Chamber to be asking in question 10 whether each

17 JCE accused was found to have contributed to the JCE prior to the

18 existence of a common purpose. The short answer, Your Honours, as far as

19 Pavkovic is concerned is no. Pavkovic's significant contribution is

20 grounded on conduct that occurred throughout the period when the charged

21 crimes were committed. This contribution falls into two categories.

22 First, Pavkovic planned, ordered, and supported VJ operations in

23 Kosovo in 1999, including by co-ordinating and planning joint VJ-MUP

24 operations with his co-accused Sainovic and Lukic.

25 Second, he created and sustained an environment of impunity in

Page 360

1 Kosovo through his non-measures and his concealment of crime.

2 Your Honours, it would of course be artificial to consider

3 Pavkovic's conduct during the 1999 campaign in a vacuum, given that in

4 the months leading up to it, he took steps to prepare for its

5 implementation. These preparations, which included the arming of the

6 non-Albanian population, the disarming of the Kosovo Albanian population,

7 and the movement of troops into Kosovo in breach of the October

8 Agreements are also part of his contribution. They not only furthered

9 the operations through which the charged crimes were committed, but as

10 Mr. Kremer explained yesterday, the Trial Chamber's findings and its

11 approach to the evidence demonstrate that the common purpose had come

12 into existence no later than October 1998, and thus encompassed these

13 preparatory acts.

14 Your Honours, I want to begin by explaining how Pavkovic planned,

15 ordered, and supported VJ operations in Kosovo. In doing so, I will

16 explain how his introduction of troops into Kosovo in breach of the

17 October Agreements and his involvement in the arming and disarming

18 process furthered the operations that were carried out beginning in late

19 March 1999.

20 I will then turn to the environment of impunity which Pavkovic

21 created and sustained in Kosovo during the 1999 campaign.

22 Turning to the VJ's operations in 1999. Your Honours will recall

23 the Trial Chamber's finding at paragraph 92 of Volume III that the NATO

24 bombing was an opportunity, an opportunity for which the JCE members had

25 been waiting to forcibly displace enough Kosovo Albanians to maintain

Page 361

1 control over Kosovo and to deal a heavy blow to the KLA. This was a

2 campaign for which the JCE members had planned and prepared. The joint

3 VJ-MUP operations carried out from late March 1999 through which crimes

4 were committed were planned in the period between January and early March

5 1999, and this is at Volume I, paragraph 1017.

6 The VJ's Grom 3 plan provided the basis for the VJ presence in

7 Kosovo and its participation in joint operations with the MUP. Pavkovic

8 issued his initial Grom 3 order on the 27th of January, 1999, further to

9 Ojdanic's Grom 3 directive. Then, on the 1st of February, 1999, Pavkovic

10 instructed Lazarevic to "draft a plan for blocking and destroying

11 Albanian terrorist forces in the Drenica, Lab, and Malisevo sectors."

12 Pavkovic also instructed that Lazarevic ensure complete

13 co-ordination with MUP units. Lazarevic implemented Pavkovic's order

14 through a plan which he issued on the 16th of February, 1999, and at a

15 MUP staff meeting a day later, Lukic announced that the MUP staff had

16 planned mopping-up operations in the same areas as those referred to in

17 Lazarevic's plan from a day earlier. And the citations from the

18 judgement are Volume I, paragraphs 1013 to 1015; and Volume III,

19 paragraphs 693 and 704.

20 In addition, Your Honours, beginning in early 1999, Pavkovic also

21 brought VJ units into Kosovo in breach of the October Agreements in order

22 to place the VJ in a position to engage in a campaign of violence when

23 the NATO bombing began. And I refer Your Honours to Volume III,

24 paragraphs 689 to 690, and paragraph 76. This conclusion, Your Honours,

25 is borne-out by the evidence which the Trial Chamber relied upon in

Page 362

1 paragraph 689.

2 First, in a media interview from 2000, Pavkovic stated:

3 "We carried out a timely mobilisation, brought them to Kosovo in

4 the greatest secrecy, distributed the war reserves, and blocked those

5 forces without them even knowing it. The signal for a total blockade was

6 the first rocket that came this way."

7 And this is from P1319, page 17, and the reference to the forces

8 being blocked is a reference to the KLA.

9 Similarly, in a documentary from 2004, Pavkovic stated:

10 "Our biggest strategic ruse was that we managed to bring in the

11 new forces in front of Walker and that they did not know it, that we

12 surrounded all of these groups, without Walker and themselves knowing it;

13 their task was to surround them and destroy them if the aggression

14 starts, if the first missile falls on our ground."

15 And this is from P912, page 7, which is also -- which is cited at

16 footnote 1689 of Volume III. And the reference, Your Honours, to Walker

17 is a reference to William Walker, the head of the KVM mission that was

18 responsible for ensuring the implementation of the October Agreements.

19 And indeed, Your Honours, on the 23rd of March, 1999, the eve of

20 the NATO bombing, Pavkovic put the VJ forces under his control in a

21 position to carry out the expulsion campaign. That day, set out in

22 paragraph 694 of Volume III, Pavkovic ordered that at the start of NATO

23 strikes units were "to be immediately engaged against all enemy forces."

24 And as Mr. Ackerman indicated this morning, this comes from

25 Exhibit 4D103, and the Trial Chamber was right to rely on this exhibit as

Page 363

1 it did because when the NATO bombing began the next day, as described in

2 vivid detail in Volume II of the judgement, so too did the systematic and

3 organised campaign of terrorisation against the Kosovo Albanian

4 population. And I refer Your Honours in this regard to Mr. Kremer's

5 discussion of the pattern of crimes which appears at T 221 to T 232 of

6 yesterday's transcript. From the nature of the campaign that was carried

7 out, campaign of violence, we know what the objective of Pavkovic's

8 military orders were.

9 Throughout this expulsion campaign, Pavkovic maintained tight

10 command and control over the VJ forces in Kosovo through his near

11 constant presence on the ground. By his own admission, Pavkovic was in

12 Kosovo more than 95 per cent of the time between March and June 1999.

13 And this is at Volume III, paragraph 716.

14 And if I could direct Your Honours' attention to the slide in

15 front of you, as you'll see in the text highlighted in yellow, Lazarevic,

16 who was the only accused to testify in this case, affirmed that during

17 this conflict:

18 "... not a single day went by without the army commander at the

19 command post of the Pristina Corps."

20 Of course, the army commander to whom Lazarevic refers is

21 Pavkovic. And as Your Honours can see from the text highlighted in blue,

22 Lazarevic added that it was rare for a commander of Pavkovic's position

23 to locate himself as he did at the corps command.

24 Having considered such evidence, Your Honours, the Trial Chamber

25 was right not to view Pavkovic as a mere conduit through whom orders were

Page 364

1 relayed as Pavkovic presents himself at paragraph 214 of his appeal

2 brief. Instead, as the Chamber found at paragraph 782 of Volume III,

3 through his presence on the ground, Pavkovic commanded the VJ troops who

4 carried out the expulsion campaign. During this campaign, Pavkovic also

5 worked closely with his fellow members of the Joint Command, Sainovic and

6 Lukic, to co-ordinate the joint VJ-MUP operations. Pavkovic ensured that

7 decisions adopted by the Joint Command were carried out by the VJ by

8 giving his approval when Lazarevic prepared Joint Command decisions. And

9 I refer Your Honours in this regard to trial judgement Volume III,

10 paragraphs 462, 782, 1118; and Volume I, paragraphs 1037 to 1038, and

11 1151.

12 As Your Honours will recall from Mr. Kremer's submission

13 yesterday, several of the Joint Command decisions admitted into evidence

14 identify forces engaging in operations in areas and on dates that

15 correspond with crimes found proven by the Trial Chamber. And this is at

16 Volume I, paragraph 1123; and Volume III, paragraph 695.

17 The systematic way in which crimes were committed during the

18 joint operations demonstrates that the objective of these operations was

19 to expel the Kosovo Albanian population. As set out in Volume II of the

20 judgement, when VJ and MUP forces were unleashed in joint operations, the

21 result in most cases was devastation, as Kosovo Albanians villages were

22 shelled, the homes of Kosovo Albanians were torched and looted, Kosovo

23 Albanians were murdered, their religious structures were destroyed, and

24 there were instances of sexual assault. Scores of Kosovo Albanians fled

25 their homes from fear of the attacking forces or were forcefully rounded

Page 365

1 up and expelled. And again I refer Your Honours to Mr. Kremer's

2 submission from yesterday concerning the pattern of crimes.

3 As the Trial Chamber noted at paragraph 696 of Volume III, orders

4 to displace Kosovo Albanians during such operations were generally never

5 issued in writing, but instead passed down verbally. However,

6 Your Honours will recall from Mr. Schneider's presentation the list of

7 directions which Pavkovic issued to his subordinate commanders on the

8 7th of May, 1999. When Pavkovic issued these directions and in them

9 instructed his subordinates to "ensure complete control of the territory

10 and movement of Siptar civilians," the objective of the common purpose

11 had almost been achieved and Pavkovic finally made explicit what had

12 previously only been transmitted orally. Ultimately, Your Honours, over

13 700.000 Kosovo Albanians were forcibly displaced during the 1999 campaign

14 in a little over two months.

15 And now I would like to turn to the disarming of the Kosovo

16 Albanian population.

17 When sending forces into operations where the objective was to

18 expel Kosovo Albanians, Pavkovic made use of the fact that, in 1998, he

19 had rendered many Kosovo Albanians defenceless, by ordering and ensuring

20 that they be disarmed.

21 Pavkovic's involvement in the disarming process, which began in

22 September 1998 and continued into October 1998, is addressed at

23 paragraphs 668 to 669, and 57 to 58 of Volume III, and the evidence

24 referred to therein. The Chamber found that the approach of disarming

25 Kosovo Albanians "was designed to render the Kosovo Albanian population

Page 366

1 vulnerable to the forces of the FRY and Serbia." And this is at

2 Volume III, paragraph 72. The ruthless efficiency with which Pavkovic

3 and his fellow JCE members were able to implement the common purpose in

4 the spring of 1999 demonstrates that the intended effect of the disarming

5 process was achieved.

6 I turn now, Your Honours, to the arming of the Kosovo Albanian

7 population.

8 Just as he had disarmed Kosovo Albanians in 1998, Pavkovic armed

9 non-Albanians beginning in the summer of 1998. He then made use of these

10 armed civilians during the operations that were carried out in 1999.

11 Pavkovic's involvement in arming non-Albanians is discussed at paragraph

12 666 [sic] of Volume III. Now, this morning Mr. Ackerman said at page 11

13 of the transcript that:

14 "You can go to every page of P1468, the Joint Command notes that

15 are cited by the Trial Chamber, and you can see no indication of

16 Pavkovic's support and leadership for the process of arming. It's

17 mentioned on occasion by other persons, he's present there, but he says

18 not a word."

19 Well, I ask Your Honours to go to page 163 of the Joint Command

20 notes, P1468, and this is from the 28th of October, 1998, and to read

21 Pavkovic's comments, where he said:

22 "We have to take into consideration how to use the armed

23 population and how to involve it in the defence of communications."

24 Your Honours, in his submissions this morning Mr. Ackerman cites

25 to evidence which he says supports his argument but ignores relevant

Page 367

1 evidence relied upon by the Trial Chamber and this is but one example.

2 THE INTERPRETER: The interpreters kindly ask the speaker to slow

3 down for the purposes of interpretation. Kindly slow down.

4 MR. MENON: Excuse me, Your Honours, the quote that I read out

5 from page 163 of the Joint Command notes is from -- is referred to at

6 paragraph 667 of Volume III and the transcript reads "666" right now so

7 that needs to be corrected.

8 Now, Your Honours, returning to those whom Pavkovic armed, those

9 whom he armed were VJ reservists who were not actively engaged

10 in war-time units. The MUP staff under Lukic similarly armed MUP

11 reservists. Once they were armed, VJ and MUP reservists were sent back

12 to their villages to form local defence units known as RPOs or reserve

13 police detachments. Although the MUP maintained general command and

14 control over these units, the VJ also played a role in commanding and

15 controlling these units. And this is at Volume I, paragraph 778, 784 to

16 788.

17 While most RPOs were disbanded when mobilisation commenced in

18 March 1999, the Chamber found at paragraph 776 of Volume I that there

19 still remained roughly 6.000 RPO members after mobilisation, and indeed

20 Pavkovic engaged these armed non-Albanians in the VJ's operations in

21 1999, through orders which he issued and approved.

22 JUDGE LIU: Well, counsel, if you also have trouble to speak

23 slowly, you may also make a longer pause after each sentence.

24 MR. MENON: Your Honours -- Your Honour, I apologise for that. I

25 will endeavour to speak slower through the remaining part of my

Page 368

1 submissions, and I thank Your Honours for the intervention.

2 As I mentioned, Your Honour, Pavkovic engaged armed non-Albanians

3 in the VJ's operations in 1999, through orders which he issued and

4 approved. And the judgement cites for this are Volume III,

5 paragraph 693; and Volume I, paragraphs 768, 780, 785, and 788. And when

6 the expulsion campaign commenced, Your Honours, the Trial Chamber found

7 that in some instances armed non-Albanian civilians acted together with

8 VJ and MUP soldiers in driving out Kosovo Albanians, including within

9 Pristina and villages in the municipalities of Orahovac, Pec and

10 Gnjilane. And I refer Your Honours to Volume II, paragraphs 48, 432,

11 888, and 944.

12 Your Honours, this then brings me to the second aspect of

13 Pavkovic's contribution.

14 Once the criminal activity had begun, Pavkovic created and

15 sustained an environment of impunity by taking wholly inadequate measures

16 to prevent and punish crime and by concealing from his superiors within

17 the VJ the full extent of what he knew was taking place on the ground.

18 This enabled the criminal campaign in 1999 to continue.

19 Although Pavkovic issued orders which called generally for crime

20 prevention and respect for international law, these were token efforts

21 which he knew would never halt or even stem the prevailing crime wave.

22 And as one could expect, they had no impact. As the Trial Chamber found

23 at paragraph 569 of Volume I, from its analysis of the relevant evidence,

24 criminal offending was significantly underreported to the military

25 justice system.

Page 369

1 The fact that Pavkovic was frequently in Kosovo between March and

2 June 1999 and spent most of his time in Pristina where the Trial Chamber

3 found that scores of Kosovo Albanians were expelled from the

4 24th of March, 1999, onwards, through operations that in the Chamber's

5 words at paragraph 888 of Volume II "required significant planning and

6 co-ordination," would have made it abundantly clear to Pavkovic's

7 subordinates that he accepted, approved, and intended the forcible

8 displacement campaign; that his calls for crime prevention and respect

9 for international law were disingenuous; and that the violence targeted

10 at the Kosovo Albanian population could be allowed to persist without

11 repercussion.

12 As far as other measures which Pavkovic took are concerned, the

13 Trial Chamber reasonably considered them but concluded that they were not

14 intended to limit criminal activity by the VJ. And I refer Your Honours

15 to Volume III, paragraphs 721, 725, and 765. For example, Your Honours,

16 in rejecting Pavkovic's dismissal of subordinate commanders as a genuine

17 measure, the Trial Chamber referred to Pavkovic's admission that these

18 commanders were removed because they failed to take "certain measures for

19 protection and camouflaging of the units." This is at Volume III,

20 paragraph 725.

21 In addition, Mr. Ackerman this morning referred to Pavkovic's

22 appointment of a commission concerning refugees in Istok in April 1999.

23 Contrary to Mr. Ackerman's submission, the Trial Chamber did consider

24 this evidence. It considered a duplicate of the exhibit which

25 Mr. Ackerman referred to at transcript pages 44, 7 to 17. Having

Page 370

1 considered the evidence, the Chamber questioned the motivation behind the

2 commission's report and its accuracy. And this is at Volume III,

3 paragraph 721.

4 Pavkovic's token efforts at suppressing crime were coupled with

5 concealment. As Mr. Schneider alluded to in his presentation, Pavkovic

6 kept information concerning the VJ's involvement in crime from his

7 superiors within the General Staff. Even though meetings were organised

8 by Pavkovic's superiors within the VJ on the 16th and the 17th of May,

9 1999, where the issue of serious crimes by the VJ, MUP, and paramilitary

10 units was discussed, nothing was done as a result of these meetings

11 because Milosevic was uninterested in resolving the issue of crime. And

12 this is at Volume III, paragraphs 575 to 576, and 737 to 739.

13 Thereafter, with Milosevic's stamp of approval, Pavkovic allowed the

14 3rd Army's practice of underreporting to continue through the end of the

15 criminal campaign. And this is at Volume III, paragraph 752.

16 In summary, then, Your Honours, Pavkovic was a critical member of

17 the JCE who had been carefully positioned by Milosevic to ensure that the

18 JCE succeeded. In the months leading up to the implementation of the

19 common purpose, Pavkovic was actively involved in preparing for it. Once

20 the common purpose was implemented, Pavkovic's conduct was critical to

21 its success, as it was he who ensured the participation of the VJ. He

22 not only planned, ordered, and supported VJ operations through which the

23 crimes were committed; he also created and sustained an environment of

24 impunity to ensure that nothing would get in the way of achieving the

25 criminal objective. Pavkovic clearly made a significant contribution to

Page 371

1 the JCE and shared the intent of his fellow JCE members. We ask

2 Your Honours that his appeal be dismissed and his sentence be adjusted in

3 accordance with the Prosecution's appeal.

4 Unless Your Honours have any further questions, those are our

5 submissions. Thank you, Your Honours.

6 JUDGE LIU: It seems to me there's no questions from the Bench.

7 Does it mean that you're finished your response?

8 MR. MENON: It does, Your Honours. We have concluded our

9 submissions. We have nothing more.

10 JUDGE LIU: Thank you very much.

11 Any reply from the Defence?

12 MR. ACKERMAN: Yes, Your Honour. Just a moment.

13 Good afternoon, Your Honours. I can't help but refer at the

14 beginning to the chart that we were all handed at the beginning of the

15 Prosecutor's presentation. And the thing I noted about it was that on

16 all of the entries there are no citations to any evidence at all, no

17 testimony, no documents, just sections of the judgement, as if the

18 judgement is evidence. And the judgement is not evidence. Nothing in

19 the judgement is evidence.

20 It was argued a few moments ago in the first presentation that

21 Pavkovic was aware of the Resolutions of the United Nations regarding

22 what was happening on the ground in Kosovo. And if you get away from

23 what's said in the judgement and go to what they are referring to in the

24 evidence, it takes you to P1468 at page 161, where Pavkovic says this:

25 "I ask that I be given in writing that the OSCE monitors can

Page 372

1 enter the barracks and count weapons. I believe that the principles as

2 regulated in the Resolution of the UN should be respected."

3 Period. There's nothing about Resolutions, as the Chamber says,

4 and you cannot tell from this that Pavkovic was aware of the Resolutions

5 of the UN dealing with what the UN said was going on on the ground.

6 The Prosecution just told you a few moments ago and referred to

7 some statements that Pavkovic made after the war to show you that he was

8 aware that forces were being enhanced in early 1999 -- late 1998/early

9 1999. And we've never contended he was not aware. He was of course

10 aware because he was there, he was a 3rd Army commander, he would know

11 when forces had been assigned to his command. Our position is that he

12 did not move forces into Kosovo in violation of the agreements; it was

13 commanded down to him.

14 This issue of arming, the Prosecutor just told you that I said

15 there was nothing about Pavkovic with regard to arming in P1468 that

16 showed his support and enthusiasm and leadership in that regard. And I

17 stand by that proposition. What's on page 163 has nothing to do with

18 support, leadership, enthusiasm, or anything else. He simply says:

19 "We have to take into consideration how to use the armed

20 population and how to involve it in the defence of communications."

21 Now, understand we are at that point when the OSCE is coming in,

22 they're -- the VJ has to remove a number of their forces, and the KLA is

23 going to be strengthened in the process, and communications could become

24 a problem. And so having these people that might be available to help

25 with the communications issue could be important and ultimately -- he's

Page 373

1 just saying that that could be important.

2 We keep hearing from the Prosecution about criminal activity that

3 was underreported. And I don't know how you can say that activity is

4 underreported if you don't know that it was happening in the first place.

5 How could a person like Dimitrijevic, at his level, say that things were

6 being underreported without knowing that things were happening that were

7 being underreported. But there's no evidence at all that anything that

8 had happened, any crimes that were occurring, were underreported. And

9 I'll get to a little more detail on that in just a few minutes.

10 Yesterday, in Volume III, paragraph 778, the Prosecution brought

11 to your attention this language from the Trial Chamber with regard to

12 Pavkovic:

13 "His promotions to Commander of the 3rd Army and Chief of the

14 General Staff were rewards from Milosevic to Pavkovic for his

15 participation in the joint criminal enterprise."

16 Now, if you look at Volume III, paragraph 778, you will find no

17 footnote supporting that. It's not evidence. It's just a statement by

18 the Trial Chamber, a supposition by the Trial Chamber.

19 Document seizure is one of the significant events that is showing

20 the existence of a plan, according to the Prosecution and the

21 Trial Chamber. And I was wondering yesterday evening what the evidence

22 shows regarding the seizure of documents. I did as quick a survey as I

23 could of the evidence, and I'm guessing - without knowing exactly - that

24 there were around 10.000 Kosovo Albanians that had their documents

25 seized. There were 750.000 refugees. That works out to about

Page 374

1 1.33 per cent of the refugees having had their documents seized. For

2 this to be a significant event, it would require proof of a more

3 widespread seizure of documents than maybe 1.3 per cent.

4 The OTP referred to Volume III, paragraph 34, and the quoted

5 statement from the Trial Chamber of K89 that:

6 "... 'not a single Albanian ear was to remain in Kosovo and that

7 their identification papers were to be torn, so as to prevent them from

8 coming back.'"

9 What the Chamber left out and the Prosecution left out was the

10 cross-examination of this witness. He was asked this question:

11 "You mentioned ... the commander of your unit. You mentioned an

12 order that he had issued. Am I correct when I tell you that" he "said

13 that no ear of any terrorist should remain in combat?"

14 The answer is:

15 "Well, it's possible. I didn't understand whether he meant the

16 ear of terrorists or any other persons."

17 That's at transcript 9179, indicating this person really had no

18 sense of what that statement really was. No reasonable Trial Chamber

19 could conclude that he was talking about refugees instead of terrorists.

20 I've discussed both K73 and K90 in my other presentation so I

21 won't go there now.

22 The Prosecution says yesterday that none of the Albanians who

23 testified listed NATO bombing as a reason for their departure. Well, if

24 I was in charge of the Prosecution in this case and I was concerned about

25 that, then I get to choose the witnesses. And if some witness wants to

Page 375

1 say that NATO bombing was responsible for their departure, then I won't

2 call that witness. I will call another Albanian witness that won't say

3 that. The other thing we have to consider is that many of those people

4 had to go back home after their testimony here, and that would have been

5 an unpopular thing for them to have said back where they live. Who knows

6 what would have happened to them.

7 Volume III, paragraph 373, the Trial Chamber says this, and this

8 was alluded to also yesterday:

9 "According to Loncar, Sainovic instructed Lukic and Pavkovic to

10 continue with the already established practice of informing him ... of

11 important incidents first, and only then informing their ... superiors."

12 That's the Trial Chamber language and they refer to Loncar's

13 testimony at T 7652 to 54. Now, if you go there and look for that, you

14 won't find it. What you will find is this. His answer was:

15 "As stipulated, General Lukic was to report to him any police" --

16 to Sainovic "any police -- as regards any police matters, and

17 General Pavkovic any army matters, or someone from their respective

18 office."

19 Nothing about informing him first and only then informing their

20 superiors as if Sainovic was somehow deciding whether or not they should

21 report certain things to their superiors. So it's a misleading

22 interpretation by the Trial Chamber rather than an accurate account of

23 what was said.

24 Vasiljevic -- this whole business of Pavkovic being close to

25 Milosevic and having a special relationship with Milosevic, and you keep

Page 376

1 hearing from the Prosecution that they got together and planned what was

2 going on in Kosovo, there is zero evidence, zero, of them talking about

3 anything to do with Kosovo. You're not going to find it. You will find

4 one instance, one proven instance, of Pavkovic meeting with Milosevic and

5 that's the one that was described by Vasiljevic in his testimony and

6 that's at page 8669 of the transcript. And he talks about going to the

7 White Palace with Ojdanic and Milosevic is leaving as they arrive. And

8 then they go in and talk to Milosevic, and Ojdanic mentions that he saw

9 Pavkovic leaving, and Milosevic says:

10 "Well, you know, he was here not in an official capacity, he just

11 dropped by."

12 More important, this alleged meeting that had to do with planning

13 in Kosovo happened in mid-June after the war was over. So it's useless

14 as an exhibit for that proposition.

15 Today at -- they talked about Volume III, 757, and I've got to

16 see if I can find that now. At Volume III, 757, the Chamber says:

17 "Pavkovic's response to the receipt of the indictment, that he

18 was unable to take further measures against perpetrators of crimes in

19 Kosovo ..." and then on about -- and they said that he said that it was

20 found that he was unable to take measures against crimes in Kosovo

21 because of the receipt of the indictment. Well, he never received an

22 indictment. There's no evidence at all that he received any indictment.

23 I don't know whether that's referring to that one statement by Krga in

24 the meeting, saying that -- something about an indictment. I don't know

25 what it's referring to, but I think it's a mistake. I think it's a

Page 377

1 typographical error by the Trial Chamber in the thing. I think they're

2 talking about his receipt of the letter from Louise Arbour that was sent

3 to him and that he responded to.

4 And when he responded to it, what he said was - not that he

5 couldn't continue to investigate crimes - what he said was -- she was

6 asking to send representatives of ICTY to investigate in Kosovo. And he

7 said in his report back to the joint -- to the General Staff,

8 Supreme Command Staff:

9 "I stress that I am not authorised to give this permission, but

10 the authorised responsible organ of the federal government is ..."

11 So that's all he was saying, not that he couldn't do anything.

12 This afternoon you heard from the Prosecutor I think - and I may

13 have misheard this, I think he said with regard to Pavkovic, his troops

14 in the MUP would commit crimes, that he knew in 1998 his troops in the

15 MUP would commit crimes. Well, Pavkovic never had any troops in the MUP

16 and never had any control over the MUP and never ordered the MUP to do

17 anything and couldn't.

18 Gornje Obrinje was brought up and I need to talk about that. The

19 Trial Chamber says at paragraph 774 with regard to Pavkovic:

20 "He was informed of the violent crimes committed during joint VJ

21 and MUP operations in Gornje Obrinje ... and of allegations that VJ and

22 MUP were responsible for these crimes."

23 And you go to the footnote and you start trying to find out where

24 they come up with that information. The orders for and reports of the VJ

25 actions in this area are found in 4DA17 - and these are new exhibits so

Page 378

1 they wouldn't have been able to the Chamber - 4DA17 of 9 September, 4DA19

2 of 22 September, 4DA20 of 23 September, 6D755 of 26 September, and 6D756

3 of 27 September. There followed after this action reports in the press

4 and from humanitarian organisations regarding an alleged massacre of

5 civilians in Gornje Obrinje on the 26th and 27th of September. In

6 response to that, General Perisic sent a request for information to the

7 3rd Army; that's 4D403 of 2 October 1998. He asks for any information on

8 the commission of a massacre, and if there was one, who committed it.

9 The next day Samardzic sent the same request on down to the Pristina

10 Corps to General Pavkovic; and that's 4D402. And on this same day,

11 3 October, Pavkovic sent an inquiry to units active in the area; and

12 that's 4D199 of 3 October. He asked if they deviated in any way from the

13 schedule of 26 and 27 September combat operations. And if they had any

14 information of any massacre committed against civilians in the zones

15 where their units were engaged, and if so, describe it and tell who

16 participated in it. He requested a written report by 5 October.

17 Numerous reports were received back. None had any information about a

18 massacre; that's 4D387, 4D390, 4D391, 4D407, 4D389, 4D401. All said no

19 massacre.

20 The 125th Motorised Brigade reported the same thing with an

21 exception. Colonel Zivanovic reported a conversation with the commander

22 of a police unit in which he was told that a woman's body was found lying

23 on top of what was presumed to be her three children in an improvised

24 bunker. She was dead, probably hit by a bullet or shrapnel in an area

25 where terrorists had opened fire. The children were alive. Thus, there

Page 379

1 was one civilian death reported to Pavkovic, likely by terrorist fire.

2 This was certainly not evidence of any massacre of civilians by army or

3 police forces. And that's P1011, pages 71 and 72.

4 Pavkovic submitted his report to the 3rd Army on 5 October 1998.

5 He reported that based on combat reports, regular intelligence reports,

6 and written reports from all unit commanders, that's more sources than

7 are in the evidence actually than just cited, there was no information

8 about the alleged massacre against the civilian population in the village

9 of Gornje Obrinje.

10 He reported that the chief of security of the Pristina Corps had

11 told him about a report that was submitted to the General Staff security

12 department about an unchecked report that some members of MUP carrying

13 out combat operations in the village had executed some persons taken into

14 custody. He informed the -- he informed that this was not a massacre of

15 the civilian population as reported in the media, but apparently had to

16 do with some KLA persons who were arrested and then wound up being

17 executed apparently. And that's P1440, 5 October 1998. But he reported

18 this.

19 Recall that the Trial Chamber made this finding. He was informed

20 of the violent crimes committed during joint VJ and MUP operations in

21 Gornje Obrinje and of allegations that the VJ and MUP were responsible

22 for these crimes. No support for that. The Trial Chamber first cited to

23 try to support it a Human Rights Watch report at P441. This report

24 detailing alleged crimes at Gornje Obrinje contains nothing that

25 indicates Pavkovic was informed of these crimes. It was issued in

Page 380

1 1 February of 1999, that's what it was dated. P1011, pages 70 and 72,

2 referred to previously, provide no information at all regarding these

3 crimes. P1440, previously referred to, has nothing regarding the alleged

4 Gornje Obrinje massacre.

5 Pavkovic did learn from that report that Serbian police had

6 reportedly executed some persons they'd taken into custody. He reported

7 this information to Samardzic. The cited evidence does not support the

8 conclusion that Pavkovic was informed of the violent crimes committed.

9 He was informed of media reports of a massacre at that place but was not

10 able to confirm it and certainly was not informed that VJ and MUP members

11 were responsible for the crimes. The Trial Chamber then says:

12 "His subsequent report sought to minimise the seriousness of the

13 incident and omitted relevant" information "in his possession."

14 The only thing that he had in his possession that was omitted

15 from his report because it didn't relate to the question he was asked to

16 report on was the dead woman that was found lying on top of three

17 children who was not, according to what he was told, the victim of a

18 crime.

19 I want to now go to Volume III, paragraph -- Your Honour, may I

20 ask how much time I'm going to have?

21 JUDGE LIU: Well, I think you only have 12 minutes to finish your

22 reply.

23 MR. ACKERMAN: Okay. I was wondering if I could have until 4.00

24 since we're scheduled for that.

25 JUDGE LIU: No, no, you could not benefit from the diligence of

Page 381

1 the Prosecution.

2 MR. ACKERMAN: I'll try anything, you know.

3 In Volume III, paragraph 718, the Trial Chamber says that with

4 respect to knowledge of crimes, Pavkovic was aware of the UN Security

5 Council Resolutions -- well, I've already talked about that. I'll skip

6 that.

7 I want to go to the underreporting of crimes issue sort of

8 quickly and briefly. It's just not the case that there was

9 underreporting of crimes by Pavkovic and no evidence supports the

10 contention. He could not have kept relevant crime information from the

11 Supreme Command Staff had he wanted to. Daily reports were filed through

12 the military court's chain of command. You can find that in 4D160. The

13 3rd Army legal affairs office would submit reports to the legal

14 department of the Supreme Command Staff.

15 As evidence of underreporting, in Volume III, 748, the

16 Trial Chamber reported that the Pristina Corps report for 3 April 1999

17 contained reports regarding crimes such as murder and attempted murder,

18 that's 5D84, and the report from the 3rd Army for that day omitted that

19 information. And that's true. But if you look at 4D276, you see that

20 the 3rd Army report was filed before the Pristina Corps report was

21 received and said additional information will be forwarded as soon as

22 received. So the 3rd Army report was filed before that information of

23 the 3rd Army came.

24 What is not clear and just assumed by the Trial Chamber is that

25 the murders and attempted murders in the report were war crimes and not

Page 382

1 internal VJ-on-VJ or VJ-on-Serb civilian kinds of crimes, of which there

2 were several.

3 In paragraph 747, Volume III, the Trial Chamber refers to a

4 report of 31 March 1999 from the 175th Infantry Brigade to the Pristina

5 Corps. It reported that eight volunteers were arrested on suspicion of

6 having committed the crime in Zegra of robbery and murder. This was not

7 forwarded in the Pristina Corps report to the 3rd Army of 31 March or

8 1 April. 6D1135, 4D371. It was reported to the Pristina Corps

9 prosecutor's office, however, on 31 March. 6D69, page 38. So what was

10 supposed to happen did happen.

11 The Prosecution contended today that the military court system

12 was not working at capacity, that crimes were not being reported and not

13 being processed, and that was partly the fault of Pavkovic. It's

14 interesting to note that there is a document, Exhibit P953, that was not

15 referred to by the Prosecution. This document reported that during the

16 war, prosecutors received 18.541 criminal reports; that's 237 per day

17 every day. They issued 6.708 indictments; that would be 86 per day every

18 day. They issued 2.811 judgements; that's 36 per day every day. And

19 there were 278 on-site investigations; that would be three and a half per

20 day every day. Considering that they were operating under war-time

21 conditions in Kosovo, with bombs falling daily, needing to move

22 frequently, it looks like they stayed pretty busy. This is not on its

23 face a system that appears to have been failing to punish violators.

24 Your Honours, I'm going to finish now. It will take me a couple

25 minutes.

Page 383

1 I recently noticed something from the Washington Post that I

2 think is a lesson on how to look at a case such as this, written by a

3 gentleman named Timothy Kudo who served as a captain in the Marine Corps

4 in Afghanistan. And I simply do this like the Prosecution's chart, as

5 something that might be of value in referencing what happened in this

6 case.

7 In the Perisic appeal that I read, the Trial Chamber in that

8 case, different from the Trial Chamber in this case, emphasised that what

9 was going on was a war. And many things happen in war, but it was a war.

10 This Chamber didn't ever seem to appreciate what was going on here was

11 really a war. Anyhow, Captain -- this captain from the Marine Corps who

12 served in Afghanistan says this:

13 While I was on patrol in Afghanistan in 2010, my squad saw a

14 motorcycle racing toward us. The two riders did not respond to our

15 shouts to stop and we began firing and killed them. The riders turned

16 out to be unarmed civilians and one looked no older than 16. Every day I

17 think about those people and others whose deaths I ordered. The images

18 flow into my mind while I'm showering, walking down the street, or

19 watching a movie. I'm haunted by the feeling that I'm no longer the good

20 person that I once thought I was.

21 The Afghan conflict, Kosovo conflict were similar with regard to

22 the inability for the regular military forces to distinguish between

23 legitimate fighters and civilians. That provokes the kind of mistakes

24 that Captain Kudo spoke of eloquently.

25 The Trial Chamber judgement is based on the proposition that

Page 384

1 Pavkovic as commander of the 3rd Army, following orders from his superior

2 officers, failed to control the 150.000 persons under his command, that

3 he was able to be everywhere all the time and in the minds of all his

4 soldiers. That's an impossible burden to place on General Pavkovic.

5 You've heard today and have read in our brief about the many efforts that

6 he made to ensure that soldiers under his control abided by the rules of

7 the law of war. He did more in that regard than anyone could have

8 expected or demanded. The major Trial Chamber finding against him is

9 that upon learning of the commission of crimes he continued to order VJ

10 forces to support MUP forces in operations against KLA forces. Had he

11 refused to do so, he would simply have been replaced. His refusal would

12 not have changed the situation; it likely would have made it worse

13 because he was working to protect the people.

14 I was assigned to this case on 13 June 2005, almost eight years

15 ago. I've carried the responsibility for General Pavkovic and his future

16 in my hands for approximately 400 weeks. That's a significant part of my

17 life as a lawyer. This Chamber is the Court of last resort for this

18 General. When I finish today, I'll not likely be able to speak for him

19 again. I need to trust that as he leaves my hands, he will be in good

20 hands. I have to trust this Chamber to consider this case carefully and

21 correctly, and I do. I do so knowing that you'll have in mind the words

22 of Justice Jackson from nearly 70 years ago, when he said that in war

23 crimes trials:

24 "... any trials to which lawyers worthy of their calling lend

25 themselves will be trials in fact, not merely trials in name, to ratify a

Page 385

1 predetermined result."

2 Thank you very much for your attention.

3 JUDGE LIU: Thank you very much, Mr. Ackerman.

4 Yes.

5 MR. MENON: Your Honour, if I may make a correction to the record

6 from our submissions this morning. At transcript page 70, lines 15

7 through 16, the transcript reads:

8 "Pavkovic was aware of the crimes of his subordinates in the

9 MUP."

10 What was intended to be said was that Pavkovic was aware of the

11 crimes of his subordinates and the MUP, so I just want to make that

12 correction for the record, Your Honours. We have nothing else. Thank

13 you.

14 JUDGE LIU: Thank you.

15 It seems to me that there's no questions from my colleagues, so

16 that concludes the hearings for today. We adjourn these proceedings

17 until tomorrow morning at 9.30 a.m.

18 --- Whereupon the hearing adjourned at 3.28 p.m.,

19 to be reconvened on Wednesday, the 13th day of

20 March, 2013, at 9.30 a.m.