Tribunal Criminal Tribunal for the Former Yugoslavia

Page 386

 1                           Wednesday, 13 March 2013

 2                           [Appeals Hearing]

 3                           [Open session]

 4                           [The appellants entered court]

 5                           --- Upon commencing at 9.29 a.m.

 6             JUDGE LIU:  Good morning, everyone.

 7             Registrar, would you please call the case, please.

 8             THE REGISTRAR:  Good morning, Your Honours.  This is case number

 9     IT-05-87-A, the Prosecutor versus Nikola Sainovic, Nebojsa Pavkovic,

10     Vladimir Lazarevic, and Sreten Lukic.  Thank you.

11             JUDGE LIU:  Thank you very much.

12             As indicated, if any party is unable to follow the proceedings at

13     any stage, I ask them to bring this to my attention immediately.

14             May we now have the appearances of the parties.  First the

15     Prosecution.

16             MR. KREMER:  Good morning, Mr. President, Your Honours.

17     Peter Kremer appearing on behalf of the Prosecution.  With me this

18     morning, Mathias Marcussen, Ingrid Elliott, and Francois Boudreault; and

19     again, our case manager, Colin Nawrot.  Thank you.

20             JUDGE LIU:  Thank you.

21             And the Defence counsel, please.

22             MR. FILA: [Interpretation] Good morning, Mr. President and

23     Your Honours.  My name is Toma Fila and together with Mr. Petrovic I

24     represent the Defence for Nikola Sainovic.  Thank you.

25             JUDGE LIU:  Thank you.


Page 387

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

 2     with Aleksander Aleksic for General Pavkovic.

 3             JUDGE LIU:  Thank you.

 4             MR. BAKRAC: [Interpretation] Good morning, Your Honours,

 5     Mr. President, honourable Judges.  For the Defence of General Lazarevic,

 6     Mihajlo Bakrac, Djuro Cepic; our legal advisor, Milos Cvijic; and our

 7     intern, Milan Petrovic, are present in the courtroom today.

 8             JUDGE LIU:  Thank you.

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

10     Dan Ivetic on behalf of Mr. Sreten Lukic.

11             JUDGE LIU:  Thank you very much.

12             Before we start, there are some adjustments of today's and

13     tomorrow's sitting schedule.  The first sitting of today will last one

14     hour and 45 minutes instead of two hours.  After the break, the counsel

15     for defendant will continue for 15 minutes to finish his presentation.

16     This is also true for tomorrow's first sitting.

17             Mr. Bakrac, now we would like to hear your presentation.

18             MR. BAKRAC: [Interpretation] Thank you, Your Honour.  With your

19     leave, we will give our oral submissions with the help of a PowerPoint

20     presentation which is not new evidence that we are adducing; rather, we

21     would like Their Honours to have certain relevant parts of our

22     presentation on the screens for ease of reference.  In our submissions,

23     Your Honours, we will try to provide answers to your questions from your

24     order of the 20th of February.  Likewise, we will be addressing certain

25     issues that we believe are important for our client and provide answers

Page 388

 1     to questions that you would not otherwise find in the judgement.  With

 2     your leave, Your Honours, I would now like to give the floor to my

 3     learned friend, Mr. Cepic, who will be addressing the first ground of

 4     appeal and answering your first question.  Thereafter, Your Honours, with

 5     your leave, I would like to address grounds two, three, and four of our

 6     appeal and the second and third questions put by Their Honours in their

 7     order of the 20th of February, 2013.

 8             JUDGE LIU:  Thank you.  You may proceed.

 9             MR. CEPIC: [Interpretation] Thank you, Your Honour.  Good morning

10     to everyone in the courtroom.  My name is Djuro Cepic, and I am counsel

11     for Lazarevic.  And I will be addressing ground one of our appeal brief.

12     Can we have slide one in front of us on the screen, and I would like the

13     usher's assistance to distribute a copy of the document to Their Honours.

14             JUDGE LIU:  This one?

15             MR. CEPIC:  Yes, that's correct.  Thank you very much,

16     Your Honour.

17             [Interpretation] When addressing the crime base, I would like to

18     point out that in item 1 of our appeals brief we have explained in detail

19     that members of the Army of Yugoslavia did conduct themselves in keeping

20     with the law and constitution and those who broke the law were prosecuted

21     by the competent bodies.  An important issue arises, which is the alleged

22     conveyance of oral orders to commit crimes.  My learned friend Mr. Kremer

23     raised this very issue the day before yesterday and this can be found at

24     Volume III, paragraph 43, of the trial judgement.

25             In their appeals brief, the Defence indicated what the

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 1     contradictory elements were in the testimony of this witness and directed

 2     the attention to the fact that it absolutely lacks credibility and is

 3     inadmissible.  And at this stage we would only like to show the most

 4     glaring example of it to Their Honours.  We have a slide in front of us

 5     which is the contents of the K90 testimony, where he clearly says that he

 6     had never been ordered to commit any crimes against villagers.

 7             Can we have slide two, please.  As you can see, this is

 8     corroborated by other testimonies and Judge Bonomy, the Presiding Judge

 9     himself, made a very clear conclusion about this witness which we can see

10     at the bottom of this slide; and the reference is transcript page 9489.

11     Hence, these portions of the transcript clearly show that Witness K90 was

12     not a credible or reliable witness and that he changed his written

13     statement significantly in the course of his testimony.  Therefore, the

14     Trial Chamber had to reject the testimony of this witness.  On the other

15     hand, had it assessed his testimony at all, it would have had to reach a

16     completely different finding from the one it did in the trial judgement;

17     that is to say that there was no such general pattern.

18             Another illogical point of his testimony is that he himself was a

19     soldier and that he could not possibly know in which way the orders were

20     conveyed down the chain.  That the orders were conveyed down the chain of

21     command in keeping with the law is clearly shown by the fact that the

22     Prosecution investigator, Philip Coo, upon his arrival in Belgrade, found

23     the entire documentation of the Army of Yugoslavia from the relevant

24     period in the archives.  The reference is 12075 of the transcript.  And

25     on the basis of all these documents and combat reports he, and later on

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 1     the Prosecution and the Trial Chamber after the evidence was adduced,

 2     could make a complete and thorough analysis of the relevant events rather

 3     than have the Trial Chamber's findings be based on indirect evidence on

 4     the principle of pick and choose; whereas, on the other hand, there was

 5     ample evidence adduced which lead to reasonable findings in the favour of

 6     the Defence which was not taken into consideration in adjudication.

 7             Furthermore, I'd like to point the fact -- point out the fact

 8     that there were over 30 chains of command under the Pristina Corps.  This

 9     fact clearly shows that in the event that there had been the procedure of

10     verbally handing down orders, this would have completely disrupted these

11     chains of command.  Can I have the next slide, please.

12             I would now like to address the crime base and some findings of

13     the Trial Chamber on this score.  The Trial Chamber erred in finding that

14     none of the reports of the subordinate units which speak about the large

15     numbers of displaced Kosovo Albanians and the engagement of the

16     Army of Yugoslavia in connection with their movement and provisions for

17     them do not relate to the locations where, according to the Trial Chamber

18     finding, the forcible displacement by the VJ was found.  This is

19     Volume III, paragraph 912.

20             Such a finding has no basis and is contradictory to the findings

21     of the Trial Chamber itself in that same judgement and in -- and is also

22     contrary to ample adduced evidence.  As you can see on this slide, you

23     have on the left-hand side the finding of the Trial Chamber and on the

24     right-hand side the finding reached by the Trial Chamber in Volume III,

25     paragraph 905, which deals with the humane treatment by VJ members in the

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 1     areas between the villages of Turicevac, Izbica, Vocnjak, and Cirez in

 2     late March 1999.

 3             [In English] At the end of March of 1999.  Yes, thank you.

 4             [Interpretation] It is a showing of how the VJ forces stopped

 5     their actions precisely for the sake of protecting civilians and the

 6     instance where a senior officer from the Pristina Corps itself had

 7     arrived to assist this activity.

 8             This was corroborated by testimonies and the combat report of the

 9     units of the VJ which is P2046.  Can I have the next slide, please.

10             We will continue addressing the municipality of Srbica.  In

11     addition to the Trial Chamber finding, I would like to point to other

12     evidence relating to this area and the relevant time which are clearly in

13     favour of the Defence.  We have explained in our appeal brief that the

14     forces of the Army of Yugoslavia did not enter the village of Cirez in

15     the period of time when allegedly crimes were found to have been

16     committed there.  But, as you can see in the slide, after the subsequent

17     arrival of the army in the area we can clearly see that -- what sort of

18     attitude the members of the VJ had toward the civilians.  These are all

19     testimonies of Prosecution witnesses, assistance in food, medication, and

20     other forms of assistance that could have been provided by soldiers.

21             Can I have the next slide, please.  The orders and reports of the

22     Yugoslav Army in the area of Srbica clearly show that the soldiers under

23     the command of General Lazarevic treated civilians humanely.  As you can

24     see, there is even a relevant portion of this -- the Trial Chamber -- the

25     exhibits -- 5D1033, this is the 37th Brigade report about the protection

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 1     of civilians in the area; next Exhibit 5D1083, the report of the

 2     37th Brigade of the army, which sought measures to be undertaken for the

 3     protection of civilians, the securing of a supply of food and other

 4     necessities; 5D1037, a report about the situation in Glogovac, where the

 5     Red Cross is called upon to provide assistance; 5D105D [as interpreted],

 6     where the army distributed its own food reserves to help the civilians.

 7     That's to say all the civilians present in the area regardless of their

 8     faith or ethnicity, and I'd like to say that under all the censuses

 9     Glogovac was 99 per cent Albanian.

10             [In English] Sorry for intervention.  Page 7, line 1, it could

11     be -- it has to be 5D1059, exhibit number.  Thank you very much.

12             [Interpretation] Can I have the next slide.  We have two maps

13     before us.  One was admitted as evidence.  A credible Prosecution

14     witness, Colonel Bislim Zyrapi, the chief of the KLA staff in the

15     relevant period.  And on the other side we have a map IC157; it is a

16     Defence witness's map, Colonel Dikovic's map, who was present in the area

17     in the relevant period.  Colonel Zyrapi's map is IC105.  These maps are

18     consistent in the essential parts and the testimony by

19     Witness Bislim Zyrapi clearly shows that there was fighting between the

20     VJ and law enforcement forces on the one hand and the KLA on the other.

21     In his credible testimony Colonel Zyrapi explained that the area was

22     under the control of his forces.  In addition to that, he said the

23     following, and I will quote, this is transcript page 6003, lines 5 to 6:

24             [In English] "It was normal for us to order the movement of the

25     population but also of the KLA ..."

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 1             [Interpretation] If the Trial Chamber found in the example of

 2     Belanica that there was not a war crime committed, precisely thanks to

 3     such a position held by Colonel Zyrapi and if we know that Colonel Zyrapi

 4     testified that this was a principle which applied to the entire territory

 5     of Kosovo, then this direct piece of evidence will lead us to the

 6     conclusion of what the general pattern was.  I would particularly like to

 7     thank the Appeals Chamber for its order of the 20th of February, in which

 8     it pointed out the question of the location of the alleged crime, the

 9     village of Tusilje, the 29th of March, 1999.

10             As a matter of fact, in the indictment that village was not

11     pointed out, and therefore there is -- there are no grounds for its

12     presence in the judgement because that would mean going beyond the scope

13     of the indictment.  Now I'd like to ask my colleague Mr. Cvijic to play a

14     video-clip that was played during the trial as well.  It is a night of

15     bombing in Pristina, one of the many nights of bombing, that is the

16     7th of April, 1999.

17                           [Video-clip played]

18             MR. CEPIC: [Interpretation] You see it.  Buildings aflame.  You

19     see residential buildings that were hit.  The question is whether any of

20     the people living in this building would stay on after this kind of

21     bombing.  And I would like to note that during the bombing

22     199 projectiles hit the town of Pristina only, hitting civilian targets

23     at that.

24             Now that we're speaking of Pristina, I wish to repeat what my

25     learned colleague Mr. Ackerman pointed out yesterday.  In Pristina there

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 1     were no combat units of the VJ.  All the combat units were defending the

 2     country outside of town.  This was attested to by the war commanders,

 3     also the Defence Witness Filipovic and also there are many combat reports

 4     to that effect of the Army of Yugoslavia.  As I've already pointed out

 5     earlier, the archives were complete.  Each and every combat report could

 6     have been found.  And any movement by units could have been

 7     reconstructed.  What I wish to point out to the Appeals Chamber is that

 8     in Pristina in the outskirts humanitarian aid was provided to civilians

 9     by the VJ and that is attested to by many documents.

10     PD499 [as interpreted], as you can see, the 354th Brigade of the army is

11     taking care of 15.000 ethnic Albanians who were returning, and they were

12     put up in Ladovac and Sajkovac.  5D615, the 211th Brigade is providing

13     humanitarian aid to the Albanian population and everything else they may

14     have needed.  Even Colonel Zlatomir Pesic, a Prosecution witness,

15     commander of the military district in Pristina, pointed out that he tried

16     to keep a group of civilians at their homes.  Also we have 5D592 where we

17     see that members of the 211th Brigade of the VJ provided medical

18     assistance to the civilian population.

19             Could I please have the next slide now.

20             I shall briefly deal with the municipality of Prizren as well.

21     We see here that there are several orders and several combat reports.  We

22     see what the attitude was.  My colleague Mr. Ackerman pointed out

23     yesterday that some refugee columns were hit by NATO bombs.  As you can

24     see in report 5D1158, NATO projectiles hit a refugee column in the

25     territory of the municipality of Prizren and further on the municipality

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 1     of Djakovica.  There was a vast number of victims.  People were killed,

 2     wounded, and here we see that the members of the Army of Yugoslavia

 3     offered assistance to civilian victims of NATO bombing.  And Defence

 4     Witness Franjo Gloncak pointed that out.  Then also this happened near

 5     the village of Korisa.  The first example I provided is in the village of

 6     Pirane and in the crime base it says that it was in Pirane that there was

 7     forcible deportation of the civilians.  The statement by Witness Gloncak

 8     is 5D1395.

 9             In addition to that, the same witness describes the situation

10     when a civilian column was hit by 15 NATO projectiles.  This was a column

11     of Albanian refugees that were returning to their homes near the village

12     of Korisa, the municipality of Prizren.  As you can see, hundreds of

13     victims.  Witness Gloncak gave his own blood to help the civilians who

14     were harmed.  All of this is corroborated by 5D194 [as interpreted] of

15     the 549th Brigade about that attack.  Could we please have the next slide

16     now.

17             This is testimony provided by Prosecution witnesses, K79.  The

18     army returned civilians to their homes wherever they could.  9721 is the

19     transcript page.  General Maisonneuve also praised the conduct of the VJ

20     in the area and also there is ample evidence that we provided in our

21     brief that testifies to this humane treatment.  Could we please have the

22     next slide now.

23             The situation was the same in the municipality of Djakovica,

24     5D1158, the wounded in the column that we mentioned in the municipality

25     of Djakovica, medical team -- a military medical team is being sent to

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 1     help them, although that is not the task of the army.  Of course the army

 2     is defending the country respecting the law, but it is other structures

 3     that are taking care of civilians.  5D1147 also speaks about taking care

 4     of civilians.  Could I please have the next slide now.

 5             Document PD1147 and PD1144 and PD1155 [as interpreted].  Now we

 6     are moving on to the municipality of Orahovac.  There is also a reference

 7     here to the humane treatment provided by the Army of Yugoslavia.  There

 8     is a reference to Witness K79 who also says that the army acted in

 9     accordance with the law.  Could we please have the next page -- the next

10     slide, rather.  And we see numerous documents like 5D963, speaking of

11     humanitarian aid provided to civilians.  5D964, 5D1071, where it says

12     that civilians in that area were fully protected.

13             There are also many other documents there, like 5D1072, 973, 974,

14     and so on.  Thank you.

15             As I've already explained using the example of Srbica, the

16     situation was the same in the municipalities of Djakovica, Prizren, and

17     Orahovac.  On the left-hand side we have Colonel Delic's map, IC1515, and

18     on the right-hand side we have Colonel Zyrapi's map.  He was the Chief of

19     Staff of the KLA, P2447.  The movements of units coincide to a large

20     extent and Colonel Zyrapi explains the fighting that took place there as

21     he explained in the case of Srbica as well.  As we said in our brief,

22     near the village of Pirane, near the village of Celine there was fighting

23     between the KLA forces on the one hand and the forces of Serbia and

24     Yugoslavia on the other.  Transcript reference 5991 and 5992.

25             Next, please, that is map P2447.  This is Colonel Zyrapi's map

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 1     and he shows here the area that was under their control on the

 2     25th of March and the alleged crime base is marked in these locations,

 3     but as I've already said Colonel Zyrapi explained that they ordered

 4     movement by the civilian population and he also said that there was

 5     fighting between the two warring parties.  Also, I wish to add to that

 6     that this was under constant NATO bombing and hundreds and hundreds of

 7     projectiles fell in the area of Kosovo and Metohija.

 8             All of this clearly indicates that the specific direction of all

 9     these actions taken by the army pertain to the defence of the country in

10     an exceptionally difficult situation due to the NATO bombing and

11     simultaneous heavy fighting with the KLA.

12             Your Honours, with your leave, now I would like to deal with the

13     first question from your order dated the 20th of February, this year, and

14     it has to do with disciplinary and other measures that were taken in

15     relation to the members of the Army of Yugoslavia.  Could we please have

16     the next slide now --

17             JUDGE LIU:  Mr. Cepic, can I give you a piece of advice?

18             MR. CEPIC:  Yes, please.

19             JUDGE LIU:  I believe that you have to point out for us where the

20     Trial Chamber is wrong in the judgement as error of law and error of

21     facts instead of repeating the evidence you showed during the trial

22     stage.

23             MR. CEPIC:  Thank you very much, Your Honour.  We pointed all

24     these paragraphs from the judgement and all relevant exhibits in our

25     appeal brief, and I was thinking that this presentation should be just to

Page 398

 1     present that argument in some additional light.  So that is the point of

 2     that presentation.  We do have everything filed in our appeal brief.

 3             JUDGE LIU:  I see.  But bear my remarks in mind in your further

 4     submissions.  You may proceed.

 5             MR. CEPIC:  Thank you very much, Your Honour.

 6             [Interpretation] In this way I wish to respond to your question

 7     specifically from your order of the 20th of February, and it has to do

 8     with the following:  Whether the Trial Chamber erred when they found that

 9     General Lazarevic had not taken sufficient measures that particularly

10     pertained to his contribution to the crime of deportation and other --

11     his failure to take adequate measures to ensure the proper investigation

12     of serious crimes committed by the VJ.  This is Volume III,

13     paragraph 900.  I hope that I'm assisting the Appeals Chamber in this

14     way.  As a matter of fact, such a ruling by the Chamber simply does not

15     hold water, to put it mildly.  General Lazarevic did his very best at the

16     time that is relevant to the indictment.  When we're speaking of

17     disciplinary responsibility we have some provisions of the Law on

18     The Army of Yugoslavia - that is P984 and Article 159 - clearly defines

19     what disciplinary measures are as much.  In this way I wish to refer to

20     the appeals judgement in Gotovina and Markac, paragraph 133.  The Chamber

21     concluded that the accused had taken disciplinary measures against a

22     large number of soldiers and that was in their favour.  What I am going

23     to show to you now is that General Lazarevic did that exactly and even

24     more than that within the scope of his possibilities, but first we have

25     to deal with the key issue.  For all of us who deal in criminal law, this

Page 399

 1     is the primary issue; that is, disciplinary responsibility as

 2     responsibility for set work obligations and, therefore, that is a much

 3     lower form of responsibility than criminal liability.

 4             In disciplinary proceedings someone cannot be held accountable

 5     for crimes of murder, rape, deportation, or any other crime or war crime.

 6     Aleksandar Vasiljevic, Prosecution witness, explained that in a specific

 7     example; 8968 is the transcript reference.  Next slide, please.

 8             As you can see, there are clear-cut disciplinary sanctions that

 9     are spelled out in Articles 163 and 164 and the most serious sanction is

10     20 days in military detention.  We will agree that we are not going to

11     punish in that way someone who committed a crime.  In addition to that

12     there is Article 181 of the Army of Yugoslavia that says that the

13     military disciplinary court, disciplinary proceedings before military

14     courts, have to be taken by army commanders, that is the lowest level.

15             Also, Article 204, paragraph 2 of the Army of Yugoslavia, says

16     that in a case of war, in a war situation, as a rule disciplinary

17     measures or disciplinary sentences the implementation of which is not

18     feasible or possible shall not be handed down during the state of war.

19     However, in spite of such limitations, General Lazarevic took all

20     measures that were within the scope of his possibilities with a view to

21     punishing soldiers in accordance with the law - 5D260, March 1999,

22     12th of March, 1999 - and he is asking for strict disciplinary measures

23     to be taken.  Then we also see from PD1144 [as interpreted] that again

24     General Lazarevic asked for that and on the 29th of March, 1999, and also

25     there were criminal sanctions involved too.  Then also document P2029 of

Page 400

 1     the 1st of April, 1999, and then 4D237 of the 7th of May, 1999.

 2             There are also numerous documents of subordinate units stating

 3     that these measures were being taken.  I am going to refer to some of

 4     them:  5D1293, 5D1020, 5D554, 5D365, 5D388, 5D387, 5D315, 5D550, 5D798,

 5     5D1142, 5D1151, 5D1154.  Could we look at the next slide, please.

 6             What is the most important thing is, as I said, disciplinary

 7     violations are taken from minor violations.  If somebody is late for

 8     work, if they did not turn up to the unit in time, if they mildly

 9     infringe on military discipline.  But what is most significant in this

10     case is the criminal prosecution of perpetrators of criminal acts.  My

11     colleague, Mr. Bakrac, will speak more about that.  All I would like to

12     point out is that military officers, superior officers, and the corps

13     commander himself carried out their duties by submitting criminal reports

14     because the courts and the prosecutor's offices are independent in their

15     work in the same way that this Court and this Prosecutor's office are

16     independent in their work.  In the same way the courts in the area of

17     Yugoslavia and the territory of Serbia by constitution and by law were

18     defined.  Their functions were defined.  In front of us we see

19     Article 143 [as interpreted] of the constitution and we see also the

20     article on the work of military courts which defines their independence.

21             I would also like to say that members of the Pristina Corps in

22     the time relevant for this judgement submitted 2.382 criminal reports, of

23     which one-fifth referred to violations of international humanitarian law.

24     This was in 492 criminal reports filed.  I tried to find in the

25     jurisprudence of this and other criminal courts that deal with war crimes

Page 401

 1     similar examples of this volume of prosecution and the extent to which

 2     humane measures were taken in respect of civilians and I was not

 3     successful in that.  I didn't manage to find any, which clearly speaks to

 4     the fact that General Lazarevic subordinated the principle of military

 5     efficiency to the principle of humaneness.  And that he adhered to the

 6     constitution and the law in all his actions that he was bound by, by

 7     rules and regulations.  I would like to thank you for your attention and

 8     my colleague, Mr. Bakrac, will continue with our presentation.

 9             JUDGE LIU:  Thank you very much.

10             MR. CEPIC:  I'm sorry for --

11             JUDGE LIU:  Yes.

12             MR. CEPIC:  I have to intervene in the transcript.  Page 15,

13     line 14, it has to be "Article 138" instead of "143."

14             JUDGE LIU:  Thank you.

15             MR. CEPIC:  Thank you very much.

16             JUDGE LIU:  Thank you.

17             Mr. Bakrac.

18             MR. BAKRAC: [Interpretation] Thank you, Your Honour.  I will be

19     addressing the gist of our grounds of appeal, numbers two and three.  In

20     relation to these grounds of appeal, the Defence will be specifically

21     addressing the questions put by Their Honours, numbers two and three,

22     from the 20 February 2013 order of this Appeals Chamber.

23             With all due respect, our Defence submits that the Trial Chamber

24     erred in finding that General Vladimir Lazarevic participated in aiding

25     and abetting the deportations and forcible transfers of the Albanian

Page 402

 1     population and that his actus reus in these actions consisted of the

 2     following:  Under one, participation in the planning and the execution of

 3     joint VJ and MUP operations; under two, issuance of Grom 3 and Grom 4

 4     orders and Joint Command orders which sent the VJ into actions in those

 5     locations where the forcible displacement of Albanians occurred; under

 6     three, his presence in the field and inspection of units which boosted

 7     the combat morale of soldiers; and lastly, under four, his failure to

 8     take adequate measures to secure the proper investigation of the serious

 9     crimes committed by the Army of Yugoslavia.  These Trial Chamber's

10     findings can be found in the trial judgement, Volume III, paragraph 925.

11             The Defence reiterates that in our view and in view of the

12     totality of the evidence adduced in this case the Trial Chamber

13     completely erred in this finding.  In order to reach the finding that

14     through these actions General Lazarevic aided and abetted the

15     deportations and forcible transfer of the Albanian population, it was

16     incumbent upon the Trial Chamber in keeping with what we believe is now

17     the prevailing jurisprudence of the ICTY to establish the so-called

18     specific direction of these actions as the decisive element of actus reus

19     for aiding and abetting.  It was necessary to establish this specific

20     direction explicitly in our view in order to establish the necessary link

21     between the acts of aiding and the crimes committed by principal

22     perpetrators.  In order to establish the existence of specific direction

23     in the actions by General Lazarevic, the Trial Chamber was obligated to

24     properly establish the broad context in which these actions were done.

25     And it was precisely at this crucial stage that the Trial Chamber erred.

Page 403

 1     Because of the erroneous interpretation of the evidence adduced and

 2     possible prejudice, instead of finding that General Lazarevic as an

 3     honourable officer and professional acted in keeping with his

 4     constitutional, legal, and moral obligation to defend his country from

 5     the KLA and NATO campaign, the Trial Chamber instead found that

 6     General Lazarevic, in fact, aided and abetted deportations and forcible

 7     transfer of the Albanian population.

 8             The extent to which the erroneous understanding of this general

 9     context of events and the constitutionally and legally established laws

10     and obligations that Lazarevic had as the Pristina Corps commander

11     affected the erroneous reasoning of the Trial Chamber is best illustrated

12     by the evidence which was adduced at trial and which was -- which the

13     Trial Chamber gave a completely different meaning from the one that a

14     reasonable trier of fact would.  The acts that the appellant did to

15     defend the country were interpreted by the Chamber as aiding and abetting

16     a crime.  And these errors of fact have, in fact, occasioned a

17     miscarriage of justice.

18             We will now address each and every one of these elements of

19     actus reus of aiding and abetting and we'll find that they militate in

20     General Lazarevic's favour.  We will now first deal with the planning and

21     execution of joint VJ and MUP actions.  The Defence notes that in the

22     context of the events in Kosovo in the relevant period, the participation

23     in the planning and execution of joint VJ and MUP actions in Kosovo was

24     not just lawful but also logical and necessary.  The Defence could not

25     find anywhere in the trial judgement a clear distinction between this

Page 404

 1     legitimate, logical, and necessary actions on the part of the appellant

 2     and those acts or omissions which would clearly and unequivocally show

 3     that what was done was with the intent on the part of the appellant to

 4     aid and abet deportations and forcible transfers.  The appellant was a

 5     corps commander in the relevant period of time and his main task was on

 6     the basis of the orders of the superior command to plan actions for the

 7     defence of the country from the KLA and the NATO campaign.  It was,

 8     therefore, incumbent on the Trial Chamber to show unequivocally and make

 9     a clear distinction between what were the lawful and the regular

10     professional tasks of the appellant and those acts in the planning and

11     execution of joint acts which would show that they had been done in such

12     a way as to amount to a significant contribution to the commission of

13     these crimes and that the appellant was aware of it.

14             In all lines of work, including those of a general in command of

15     a corps, there exists a description of duties and one of these duties on

16     the part of a general is to plan operations, especially so in a state of

17     war.  Is that punishable?  Certainly not.

18             I would now invite you to look at a slide where we will only

19     summarise the views presented by Prosecution witnesses, those witnesses

20     who in view of their experience and position were well-placed to state

21     certain things about this.  Among them were quite a few high-ranking

22     officials of international organisations, and in respect of these

23     elements that the Trial Chamber held amounted to the actus reus on the

24     part of the appellant, they stated that these actions were, in fact,

25     legal and legitimate.  And what's more, that they were necessary where

Page 405

 1     the country was defending itself from the KLA and the NATO campaign.  So

 2     according to the Prosecution Witness Maisonneuve the co-ordination

 3     between the VJ and the MUP was more than necessary, it was highly

 4     professional.  Every operation which implies the participation of both

 5     the VJ and MUP had to have been carried out in close co-operation in

 6     order that the -- each of these formations would be well acquainted with

 7     the plans of the other and that incidents of friendly fire would be

 8     avoided.  That is why co-ordination is done well ahead to clearly

 9     establish the responsibilities of all the parties during these

10     operations.  And, Your Honours, this can be found at page -- at the page

11     of the transcript 11183.

12             At transcript page 9815, Colonel Crosland - as he himself put

13     it - based on his wealth of experience gained [Realtime transcript read

14     in error "again"] across the world testified that it was quite expected

15     that there should be various forms of co-ordination and co-operation

16     between the forces of the MUP and VJ in Kosovo in order to, among other

17     things, avoid friendly fire.  This is transcript page 9815.

18             In addition to these testimonies, we have the SFRY legislation in

19     force at the time which General Lazarevic was duty-bound to adhere to

20     which envisaged the engagement of Yugoslav Army units in operations

21     against renegade terrorist groups.  This was fully legitimate and legal.

22     You can find this in Exhibit P1085.

23             Your Honours, line 8, Colonel Crosland and his wealth of

24     experience "gained" across the world; that is what the transcript should

25     reflect.

Page 406

 1             The evidence that we drew the attention of the Appellate Chamber

 2     to clearly shows that the planning and participation in the joint VJ-MUP

 3     operations in counter-terrorist actions is not only legitimate and

 4     customary but also necessary, especially in a situation where an armed

 5     force is attempting to separate a part of the territory of an

 6     internationally recognised country.  The MUP and the VJ had an

 7     constitutional obligation to protect the territorial integrity and the

 8     sovereignty of the country.

 9             The Trial Chamber further found that the appellant demonstrated

10     his actus reus also by issuing the orders of Grom 3 and Grom 4 as well as

11     the Joint Command orders drafted by the Pristina Corps which sent the VJ

12     into actions in those locations where there was forcible displacement of

13     Albanians.  At this point the Defence wishes to point out that the units

14     of the Pristina Corps were deployed in all the various locations in

15     Kosovo, including those where instances of deportation and forcible

16     transfer were not found to have happened.

17             The crucial issue is that the Chamber invoked those orders which

18     clearly and unequivocally constituted a broader plan for the use of the

19     Army of Yugoslavia in Kosovo and Metohija which had to do with the

20     defence of the country from land aggression and a plan which had been

21     drafted at a level higher than that of the Pristina Corps.  The contents

22     itself indicate that the plan was not erected against the civilian

23     population but was rather the result of a war effort for the defence of

24     the country.

25             I will recall briefly something you can see in the slide.  3D690

Page 407

 1     is a directive of the General Staff of the Army of Yugoslavia dated the

 2     16th of January, 1999, which bears the heading Grom 3.  This directive

 3     conveys the task to the lower levels, first the 3rd Army and then the

 4     Pristina Corps, to apply this use of VJ -- or, rather, to use VJ units in

 5     combat against forcible deployment of a multi-national NATO brigade and

 6     incursions of the terrorist units from Albania into Kosovo and Metohija.

 7             On the basis of this directive, the 3rd Army issued an order,

 8     Grom 3, on the 27th of January, 1999, in order to define the tasks of the

 9     Pristina Corps to prevent the deployment of a NATO brigade and its

10     joining up with the KLA.  This is 5D245.  At the same time and further

11     down the chain of command, this order, this plan for the defence of the

12     country, was transformed by the 3rd Army command into an order to block

13     and destroy the KLA in Drenica, Mlaka -- Laba, Malo Kosovo, and Malisevo.

14     The 3rd Army sent out an order that the plan should be carried out at the

15     latest by the 15th of February, 1999.  This was 5D249.

16             On the 16th of February the order was, in fact, carried out and

17     issued to carry out these actions, and this is P2808.  This was, in fact,

18     an order that was then issued by the Pristina Corps command.  The fact

19     that this was all done to defend the country finds support also in a

20     foreign intelligence report which is 60 --

21             THE INTERPRETER:  The interpreter didn't catch the number.

22             MR. BAKRAC: [Interpretation] This is 6D1671 from November 1998

23     which follows the activities in the field.  And I apologise, the number

24     is 6D1671.  This intelligence report which was sent through the embassy

25     in Belgrade to the country in question discusses the activities and the

Page 408

 1     organisation of the KLA, noting in particular that the KLA was being

 2     re-established and mobilised in Malisevo, Drenica, and Podujevo, that's

 3     to say Lab and Malo Kosovo, where some of the strongest and best

 4     organised KLA units were spotted.  It was indicated that the KLA was

 5     actively recruiting and training new groups.  Witness Radojko Stefanovic

 6     also testified, and at transcript page 21817 he stated that the 16th of

 7     February, 1999, order of the Pristina Corps stemmed from the order of the

 8     3rd Army.  And, therein, it was assessed that the areas of Malo Kosovo,

 9     Drenica, and Malisevo where there was a high concentration, a high

10     presence, of the KLA units, these areas were suitable for an air-borne

11     attack by a multi-national brigade of NATO.

12             All this evidence which clearly corroborates the orders clearly

13     lead to the conclusion that these were actions, orders undertaken for the

14     purpose of the defence of the country, undertaken with the desire and

15     with the goal of carrying out combat aims.  With an analysis of all these

16     orders we can establish what the objective of the actions of the VJ was

17     and what the chain of command was.  These were obviously orders for the

18     defence of the country and there are no illegal orders or directions

19     there.  The appellant was obliged to carry out such orders from a

20     superior command.  The content of all of these orders and the

21     corroborating evidence unequivocally lead to the conclusion that they do

22     not constitute a screen or a mask in order to conceal that crimes were

23     committed against Albanian civilian population under the guise of alleged

24     fighting against the KLA and in defence of the NATO campaign.  If that is

25     not the only reasonable conclusion, then at least it is an alternative

Page 409

 1     reasonable conclusion which should have been made by the Trial Chamber.

 2     I repeat, by issuing -- the issuance of these orders was taken by the

 3     Trial Chamber.  One of the actus reus in the responsibility of

 4     General Lazarevic.  In my view, when you analyse these orders the only

 5     reasonable conclusion would be that they were conducted for the purpose

 6     of the defence of the country and within war efforts.  If you would like

 7     to lower the standards, in view of the fact that the Trial Chamber

 8     reasoned on the basis of circumstantial evidence, then at least a

 9     reasonable alternative conclusion is that these were orders that had to

10     do with the war effort and defence.

11             Especially when we're talking about the fact that in these places

12     that the orders refer to, the KLA concentrations were exceptionally high

13     and the members of the KLA were mixed in with the Albanian civilian

14     population.  The Trial Chamber -- the appellant would like to note that

15     the Trial Chamber erroneously and without relying on specific evidence

16     established that among other things Lazarevic demonstrated actus reus of

17     aiding and abetting deportation and forcible transfer by going out into

18     the field and touring the units, whereby he boosted the combat morale of

19     the soldiers.  The Defence would like to remind the Appeals Chamber that

20     in the relevant period units of the VJ in Kosovo and Metohija were

21     exposed to fierce bombing from the air and by frequent attacks of the KLA

22     in the whole territory of Kosovo and Metohija.  In such circumstances, it

23     is absolutely logical for the corps commander to tour his units.  This is

24     done by every commander of any army in the world.  The Trial Chamber does

25     not have one direct and then we would say either an indirect proof that

Page 410

 1     the tour of units was conducted with the awareness or intent to encourage

 2     and support the perpetrators of crimes.  We repeat that in order for --

 3     this is something that circumstantial evidence would need to point to in

 4     order for the conclusion of the Trial Chamber to be the only reasonable

 5     conclusion which would believe that that was not the case in this

 6     instance.

 7             Your Honours, you have the conclusion of the Trial Chamber in

 8     front of you, Your Honours, and in the position of the Defence this is

 9     exculpatory evidence.  If you look at Exhibit P2004, Your Honours, you

10     will see that item 4, dealing with the state of morale, General Lazarevic

11     notifies the 3rd Army and the Supreme Command Staff of the VJ of the

12     following.  This is a combat report of the 13th of April, 1999, some 20

13     days thus after the NATO campaign and the bombing began.

14     General Lazarevic says the morale of the corps is very good and stable.

15     The morale is positively influenced by the increasingly prominent view of

16     international political factors, that the issue of Kosovo and Metohija

17     should and must be dealt with by political means.

18             And here is what the result is of Lazarevic's tour of the field.

19     He's encouraging, he's reporting to the superior [as interpreted] 3rd

20     command and the General Staff that the army in the field is prepared and

21     in favour of a peaceful, political resolution of the situation.  Would

22     anyone who is aware of deportations and forcible transfer be in a

23     position to report to the command that the awareness and morale of the

24     soldiers is such that they wish for a political rather than a military

25     resolution of the problem and that he would inform his superiors of such

Page 411

 1     a position?

 2             What is particularly significant is also the testimony of

 3     Witness K73 who was mentioned the day before yesterday in the brief by my

 4     learned friend, Mr. Kremer, and also Mr. Ackerman referred to the

 5     testimony of this witness, Witness K73.  My colleague, Mr. Cepic, talked

 6     about K90.  I am now going to talk about the testimony of K73.  My

 7     colleague, Mr. Ackerman, pointed to the testimony of this witness

 8     yesterday before the Trial Chamber and called or invited the

 9     Appeals Chamber to look at the testimony of this witness in detail.  I

10     would like the Chamber to review his testimony in detail so that you can

11     see that even though this witness talked about an incident of

12     deportation, he said that he never received an order for deportation or

13     forcible transfer directly.  When he testified, this witness talked about

14     one incident here.  My learned friend, Mr. Kremer, said the day before

15     yesterday that this witness himself has a problem to face something that

16     he allegedly himself did in one of the actions.  But it is evident,

17     however, that this witness does not recognise General Lazarevic as his

18     co-perpetrator and aider and abettor in these acts.  He recognises him as

19     a commander; under his command he defended his country.  And for him it

20     was a great honour, as he himself said, to defend his country under the

21     command of General Lazarevic.

22             You will find this on T.341 [as interpreted] page of the

23     transcript where Witness 73 says all officers had a high opinion about

24     General Lazarevic.  They held him to be a professional soldier, a good,

25     honest, and honourable man who defended his country.  He was one of a

Page 412

 1     string of commanders or one in the chain of command of the commanders.

 2     The witness believed that Lazarevic was a military leader and emphasised

 3     that it was an exceptional honour for him to serve the homeland under his

 4     command.

 5             And finally, which of course is not the task of a witness but I

 6     would like to mention, this witness personally holds that

 7     General Lazarevic has no place in this courtroom.

 8             Your Honours, why am I talking about this?  This is completely

 9     incompatible with the findings of the Trial Chamber.  If the

10     Trial Chamber finds that General Lazarevic's tour in the field was such

11     as to encourage and incite perpetrators of crimes, why then do the

12     Prosecution witnesses, soldiers from the field, have an opinion like this

13     of General Lazarevic?  This is an absolute proof, actually, that

14     General Lazarevic was thought to be a general leader in the defence of

15     the country and that he did not have any influence or effect on any kind

16     of illegal or ill deeds.  This is transcript page "3415," Your Honours.

17     This is an error in our transcript today.

18             I am also going to mention Prosecution Witness Dusan Loncar who

19     testified about General Lazarevic, said that he can state what most of

20     the VJ officers believe and that is that he is a general par excellence.

21     Prosecution Witness Zlatomir Pesic noted that he never received any order

22     from General Lazarevic, either in writing or oral, that would oppose the

23     law or basic rules on the use of the VJ.  This is also a Prosecution

24     witness.  And finally, a witness, Prosecution, Ratomir Tanic gave an

25     assessment that Lazarevic did not have a complete overview of what was

Page 413

 1     happening on Kosovo and Metohija.  The Trial Chamber -- this is

 2     transcript page 6756.  Zlatomir Pesic is actually transcript page 7267;

 3     Dusan Loncar is transcript page 7687; and Ratomir Tanic is transcript

 4     page 6756.

 5             The Trial Chamber finally concludes erroneously that

 6     General Lazarevic knew that his failure to undertake adequate measures in

 7     order to ensure a proper investigation of serious crimes committed by the

 8     VJ enabled the forces to continue their terror of

 9     terror [as interpreted], violence, and transfer.  The appellant notes

10     that there is numerous evidence that the Trial Chamber did not evaluate

11     correctly which indicate that General Lazarevic whenever he had knowledge

12     of any crime by a member of the VJ carried out all measures at his

13     disposal in order to investigate the crime and prosecute the

14     perpetrators.  There is numerous evidence which indicates without a

15     reasonable doubt that -- there is extensive evidence proving beyond a

16     reasonable doubt that the Trial Chamber erred in finding that

17     General Lazarevic failed to take appropriate measures to investigate

18     serious crimes alleged committed by the VJ.  I draw your attention to

19     5D84; that is Lazarevic's combat report of the 3rd of April, 1999.  It's

20     a report of the -- some seven or eight days after the beginning of the

21     NATO bombing campaign.  In this report General Lazarevic informs the

22     superior command and the General Staff that the day before, on the

23     2nd of April, 32 criminal reports were brought against perpetrators of

24     crimes and eight for murder, one for maltreatment, three for attempted

25     murder, two for car theft, and so on and so forth.

Page 414

 1             Thus, at the very beginning of the bombing campaign whenever

 2     General Lazarevic received information he would submit a report to the

 3     superior command and inform them about it.  This exhibit was shown to

 4     General Vasiljevic, Prosecution witness.  He was part of the intelligence

 5     organ in the General Staff of the VJ -- actually, the security organ - I

 6     apologise - at the Main Staff of the Army of Yugoslavia.  Vasiljevic, and

 7     I'm just going to summarise what he said - these are transcript

 8     pages 8965, 8966 - where he says that this is a classic example of a

 9     combat report as it should be drafted containing all the necessary

10     elements.  After that Witness Vasiljevic was shown Exhibit 5D85, a combat

11     report of the 4th of April, 1999, the following day after the combat

12     report of the 3rd of April where General Lazarevic regarding the security

13     says the day before there was six criminal reports filed against

14     perpetrators.

15             Can we look at the following slide, please.  And then again when

16     General Vasiljevic was shown this document, General Vasiljevic - and you

17     have that on this slide - replied that in this combat report as well --

18     this combat report as well contains everything that such a combat report

19     should contain.  He added -- he added that there was a duty by the

20     security organ as well, that is, his line of reporting, to report back on

21     these crimes.  He also, when asked whether what General Lazarevic

22     wrote -- what he wrote in the combat report and whether he undertook

23     everything that he could and was able to do, he said yes, certainly.

24     What General Lazarevic did was what he was supposed to do and his

25     responsibility ended with that.  Any further investigation was in the

Page 415

 1     hands of higher organs and superior organs if required were obliged to

 2     request a more detailed report about these events.  And you can find this

 3     on transcript 8967 to 8968.

 4             The said conduct by General Lazarevic which the Trial Chamber

 5     erroneously characterised as acts and omissions constituting the

 6     actus reus of aiding and abetting, deportations, and forcible transfer

 7     actually must be viewed exclusively as conduct directed at conducting

 8     war, or rather, behaviour which in real circumstances constitutes war

 9     efforts to defend the territory of a recognised state from armed

10     rebellion and violent secession conducted by the KLA as well as for

11     purposes of defence from the NATO air campaign.

12             In view of all the evidence that we have noted, it is clear that

13     a reasonable trier of fact can only necessarily come to such a decision.

14     The Prosecution should have proved beyond a reasonable doubt that the

15     acts and omissions by General Lazarevic which we cited above were

16     specifically directed at providing practical assistance to perpetrators

17     of crime and that these acts had a significant effect on the execution of

18     crimes.  In a case in which such a conclusion is based on circumstantial

19     evidence, this should have been the only reasonable conclusion that could

20     have been drawn from such evidence.  It's evident that the examples that

21     we cited as well as other numerous examples from our appeal brief do not

22     allow the Trial Chamber the option to establish that the only reasonable

23     conclusion was that General Lazarevic had the requisite actus reus

24     through the above-cited conduct and alleged omissions.  The alternative

25     reasonable explanation of Lazarevic's conduct would be in taking legal

Page 416

 1     measures directed at conducting war and defence of the country and not to

 2     perpetrator of crimes.

 3             In light of the latest jurisprudence, the Defence believes that

 4     in this specific case General Lazarevic -- we would need to apply to him

 5     the principle of specific direction, regardless of the fact that at the

 6     relevant time he was in Kosovo where allegedly deportations and forcible

 7     transfers were taking place.  The entire territory of Kosovo cannot be

 8     considered as one crime scene, especially if we keep in mind the

 9     circumstances of daily mass and wide spread bombing on the part of the

10     NATO Alliance and practically daily attacks of the KLA against units of

11     the VJ and MUP.  Due to these specific circumstances it was necessary to

12     establish whether General Lazarevic was present at each specific place

13     where a crime was committed.  Had General Lazarevic reacted when he knew

14     of any crime or when he found out about any crime, this is indicated by

15     the following examples that he did react:  5D379 is General Lazarevic's

16     request of the 26th of April, 1999, when he asked the superior organs to

17     send urgently to Kosovo a forensic expert team in order to exhume bodies

18     because of alleged information that the Army of Yugoslavia was implicated

19     in crimes and killings in Mali Alas.  Also, if you look at Exhibit 5D383

20     you will see that immediately the following day, the VMA sent

21     Dr. Ivica Milosavljevic to help in the investigation of these crimes.

22             What is of particular interest - and I would like to draw the

23     attention of the Chamber to that - is the following:

24     PD383 [as interpreted].  This is what it says, that a forensic expert, or

25     rather, a military expert, a pathologist, will carry out exhumations

Page 417

 1     throughout the territory of the Pristina Corps for as long as necessary.

 2     So this is not a call in respect of one particular situation or crime.

 3     This is a call for this forensic pathologist to remain in Kosovo, to deal

 4     with the entire area of Kosovo, and to stay for as long as necessary.

 5             A few days later, that is to say at the beginning of May --

 6     previously, Your Honours, I do apologise, I would like to draw your

 7     attention to the following:  PD1315 [as interpreted].  And that is a

 8     report, a forensic report, of Dr. Milosavljevic in terms of what he did

 9     at Mali Alas and Slovinje.  Number 1, this report shows that the call was

10     not just mere writing on paper.

11             Something that was just supposed to show that General Lazarevic

12     did something.  It was a sincere, meaningful call to investigate the

13     situation and to punish the possible perpetrators.  As for 5D1315, the

14     report on the forensic examination of bodies at these two locations shows

15     that this was truly done.  Further on, 5D421 shows that precisely on the

16     basis of this evidence that was initiated by General Lazarevic UNMIK

17     prosecuted crimes at these particular locations.  I would like to draw

18     your attention to 5D421 which shows that immediately after that, on the

19     8th of May, 1999, General Lazarevic once again sent a letter to the

20     superior command requesting two more teams of pathologists, forensic

21     pathologists, to carry out additional examinations.  Please do focus on

22     this document.  General Lazarevic says that all these pathologists are

23     going to perform their functions according to the orders issued by the

24     military court.  This shows that he has no further authority with regard

25     to these matters.

Page 418

 1             In view of such situations and in view of clear evidence that in

 2     each and every case when he was aware of the commission of any crime,

 3     General Lazarevic took adequate measures and appropriate measures, the

 4     only ones he could have taken.  It is quite clear that because of this

 5     specific situation of a war, that is to say lack of sufficient

 6     information, the impossibility of observing things directly, it was

 7     necessary for the Trial Chamber to deal with each and every location of

 8     forcible deportation to see whether General Lazarevic was actually there

 9     or close to that location or whether he knew that specifically at these

10     locations members of the VJ conducted deportations or forcible transfers.

11     Therefore, we believe that in the case when General Lazarevic was

12     commander of the Pristina Corps the principle of specific direction has

13     to be applied in this case as well, and it has to be established whether

14     General Lazarevic was present at each and one of these locations of

15     deportation or whether he was close to any one of them and whether he

16     could have known that soldiers under his command could have carried out

17     such deportations.

18             I would also like to recall the jurisprudence of the Tribunal.

19     I'd like to go back to something else.  I do apologise to the

20     Trial Chamber, but I'm trying to fit into the time allocated to me.  So I

21     would like to say that General Gojovic, who was a Defence witness, said

22     that military judicial organs dealt with 601 victims at 11 locations;

23     16687 is the transcript reference.  Also Defence Witness Geza Farkas said

24     that when at the General Staff they recapitulated the situation, their

25     assessment was that at Kosovo and Metohija, at the relevant point in

Page 419

 1     time, 95 per cent of crimes that were believed to have been committed by

 2     members of the VJ were criminally prosecuted.  Also I would like to draw

 3     your attention to 5D550, the commander of the 175th Brigade of the VJ,

 4     I'm saying that criminal reports were filed, although the Trial Chamber

 5     says something different.  As for Witness Geza Farkas, 16304 is the

 6     transcript page reference.

 7             Your Honours -- actually, when you assess all this evidence, with

 8     all due respect, I would like to remind you of something that of course

 9     you know full well.  The jurisprudence of this Tribunal does say that

10     presence alone at the scene of a crime is not conclusive of aiding and

11     abetting unless it is shown to have a significant legitimatising or

12     encouraging effect on the principal perpetrator, and so on; this is the

13     Boskoski and Tarculovski trial judgement, paragraph 402, and Brdjanin

14     appeal judgement, paragraph 273, 277.  Therefore, I believe it is

15     absolutely necessary here to establish specific direction of

16     General Lazarevic in terms of aiding and abetting in forcible transfers

17     and deportations as far as actus reus is concerned.

18             Also I would like to add something else.  Prosecutor versus

19     Perisic, that is another case I would like to deal with.  General

20     assistance provided cannot be sufficient evidence in terms of crimes

21     committed by direct perpetrators.

22             THE INTERPRETER:  Interpreter's note:  We do not have the actual

23     text of the judgement.

24             MR. BAKRAC: [Interpretation] Therefore, it is necessary to

25     establish a direct link between the immediate perpetrator.  In these

Page 420

 1     cases of actus reus that was established by the Trial Chamber in relation

 2     to General Lazarevic, we see no such thing.  This can be found in the

 3     appeals judgement of Perisic in paragraph 44.

 4             In the evidence of this case there is not a shred of evidence

 5     that would indicate any direct link of General Lazarevic in the

 6     aforementioned case.  Also, in the Perisic case it was stated that

 7     awareness of the commission of a crime does not establish, per se,

 8     specific direction consisting of actus reus separate from mens rea.  That

 9     can be seen in paragraph 68 of the same judgement.

10             THE INTERPRETER:  Interpreter's note:  We do not have the

11     original text.

12             MR. BAKRAC: [Interpretation] Your Honours, I see the

13     interpreter's note.  Yes, we are going to submit the original text of

14     these judgements to the interpreters.

15             With your leave, Your Honours, I would like to move on to

16     questions related to the following, whether the standard of mens rea was

17     met in terms of aiding and abetting in the case of General Lazarevic.

18     Perhaps at this point in time it would be right for me to try to respond

19     to the question put by the honourable Appeals Chamber to deal with the

20     following question:  Actus reus and mens rea in terms of aiding and

21     abetting as part of joint criminal enterprise, whether that can be in

22     existence before the JCE itself.  The Defence believes that that's not

23     possible, that that cannot be achieved in such a way.

24             In my modest view as Defence counsel, for as long as there is not

25     an objective the accused cannot assist in carrying out crimes that are

Page 421

 1     within this joint purpose.  Before the joint enterprise or joint

 2     objective or joint purpose comes into being, it is not possible to

 3     achieve actus reus and not mens rea either.  An aider and abettor has to

 4     be aware of crimes and also to know that his conduct significantly

 5     contributes to the commission of such crimes.  However, an aider and

 6     abettor does not accept a possible plan or objective of the enterprise as

 7     his own, and in this particular case I'm claiming that he's not even

 8     aware of one and does not share this common purpose with the others.

 9     That's why I believe that actus reus and mens rea before this plan

10     started at all cannot pertain to deportations and forcible transfers

11     before this plan had been embarked upon.

12             If you believe that this would suffice, then I would like to move

13     on.  Thank you, Your Honours.

14             The Trial Chamber erred in determining that the appellant had the

15     necessary mens rea for the crimes of aiding and abetting and the

16     deportation and forcible transfer of Albanian civilians because he was

17     aware of the intentional commission of such crimes by the VJ in

18     co-ordinated actions with the MUP and he knew that his conduct assisted

19     the commission of these crimes.  This is paragraph 927 of the trial

20     judgement.

21             Before the Defence starts dealing with the evidence that shows on

22     the contrary, beyond any reasonable doubt, that General Lazarevic was not

23     aware of any kind of intentional commission of these crimes and he did

24     not know that his conduct assisted the commission of these crimes, we

25     wish to point out now that in this specific case and in view of the

Page 422

 1     aforementioned specific characteristics of this concrete case, in the

 2     view of this Defence a standard has to be applied that implies the

 3     existence of a purpose or an objective.  Article 25(3)(c) of the

 4     Rome Statute.  Why am I saying in this specific case and in view of the

 5     specific circumstances involved?  The NATO air campaign and the alleged

 6     simultaneous start of crimes of deportation and forcible transfers under

 7     the guise of this campaign as well as previously mentioned evidence make

 8     it necessary to adjust the criterion for assessment to these

 9     circumstances.  This simply is not sufficient.  The Defence believes that

10     the Trial Chamber had to determine that the appellant acted with an

11     objective in mind of committing such crimes because knowledge is not

12     sufficient for the existence -- responsibility according to this.

13             However, on the other hand, if this kind of position taken by the

14     Defence is not to be accepted, again the accused has to know that his

15     action or failure to act would assist the main perpetrators of certain

16     crimes.  He would have to know that at least some of these crimes would

17     be committed.  This is a standard that is also higher than had reason to

18     know.  In addition to that, the Defence believes that every professional

19     soldier and even a lay person knows that in any war there is a risk that

20     individuals may commit crimes against the civilian population that cannot

21     be prevented.  Therefore, the Defence believes that when the NATO

22     campaign started the Trial Chamber had to establish beyond reasonable

23     doubt that this kind of knowledge did exist on the basis of specific

24     evidence related to this accused.  Even if some information about

25     deportations and forcible transfers carried out by members of the VJ had

Page 423

 1     been generally known and widely disseminated, this would not support a

 2     presumption of the knowledge of the accused, in this case

 3     General Lazarevic.

 4             The Trial Chamber erred in finding that Lazarevic knew that

 5     through his conduct he would help further the campaign of the forcible

 6     displacement of Kosovo Albanians.  The Defence did not manage to identify

 7     the piece of evidence that the Trial Chamber relied upon and which would

 8     show beyond reasonable doubt that Lazarevic knew that he would further

 9     this campaign through his conduct.  If Lazarevic was aware of it and even

10     if he knew that the Kosovo Albanians were leaving the province, there is

11     no evidence that would show beyond reasonable doubt that Lazarevic was

12     aware that this was the result of the force used by his subordinates,

13     especially not -- and there is especially no evidence showing beyond

14     reasonable doubt that Lazarevic knew that with his conduct he was

15     assisting a campaign of forcible displacement and deportations.  It is to

16     be noted that as the first NATO bombs landed there were many Serbian

17     civilians who were leaving the area as well.

18             Your Honours, I don't know if this is the right time based on

19     your guidance?

20             JUDGE LIU:  Yes, I believe so.  And we'll take a break for

21     30 minutes.  We'll resume at quarter to 12.00.

22                           --- Recess taken at 11.13 a.m.

23                           --- On resuming at 11.46 a.m.

24             JUDGE LIU:  Yes, Mr. Bakrac, you may continue.

25             MR. BAKRAC: [Interpretation] Thank you, Your Honour.

Page 424

 1             Before we took the break, Your Honours, I gave my modest view

 2     with regard to the mens rea of General Lazarevic.  In an attempt to

 3     support my view, I would first like you to -- to point you to Volume III,

 4     paragraph 906, of the trial judgement -- or actually, paragraphs 901

 5     through 906, where the findings are related about the measures that

 6     General Lazarevic took.  The Defence believes that the findings of the

 7     Trial Chamber which can be found at paragraph 906 where it is stated that

 8     General Lazarevic took measures to help the civilian population but that

 9     this showed that he was aware of the forcible displacement of the

10     Kosovo Albanians by the VJ forces and that these orders also show that he

11     tried to carry these actions out in a non-violent manner and not with the

12     intention to displace the civilians.

13             I would like to draw your attention to some of these orders,

14     P2029, on the 1st of April, this is six days after the bombing.  The

15     order said that measures of prevention are to be applied, prevent looting

16     and other forms of crime.  Evidently at the very start of bombing as an

17     experienced officer General Lazarevic issued orders with the intention of

18     preventing crimes, seeking to have the civilians protected from every

19     form of theft and other criminal offences.  This is quite understandable,

20     and in our view this does not go to show that he knew that these acts

21     were being committed or that they were being committed systematically or

22     in an organised fashion.  Rather, this was a war where NATO bombs were

23     destroying the residences and businesses of citizens and where such

24     occurrences were a possibility.

25             The other order, P1306, directly contradicts - and quite clearly

Page 425

 1     so - the finding by the Trial Chamber in paragraph 906.  If you look at

 2     the order dated the 16th of April, 1999, you will see that

 3     General Lazarevic stated the following:

 4             "Because of the NATO forces' activity and the activities of SDS's

 5     on -- against the civilian population, the corps forces were under daily

 6     attack and directly threatened.  In order to avert losses among the

 7     civilian population from the activities of the aggressor, I hereby issue

 8     the following order ..."

 9             And what follows is the order that at all the various levels of

10     the corps, regardless of the location - since the Trial Chamber said that

11     these orders were related to those areas where the crime of deportation

12     occurred - here we see that all the corps units were instructed to set

13     out special elements of their forces that would be solely concerned with

14     the protection of the civilian population.

15             Therefore, from the preamble of this order we can infer the

16     knowledge of General Lazarevic.  He saw the movement of the civilian

17     population as the result of the attack of the air forces and the attack

18     of the terrorist forces against the VJ and MUP forces.  I would also like

19     to draw your attention to Exhibit P -- to Exhibit 5D201 dated the

20     1st of April, 1999.  I apologise, Your Honour, my mistake.  5D201 dated

21     the 19th of April, 1999.  The heading also reads "signed personally by

22     General Vladimir Lazarevic, commander."

23             In view of the air raids by NATO or as a result of the air raids

24     by NATO, the civilian population within the area of responsibility of the

25     Pristina Corps has started moving and I hereby order, so the reason

Page 426

 1     behind the order is clearly stated.  All the corps units should see what

 2     the situation is with regard to the civilian population on the move, and

 3     wherever possible protect the civilian population and prevent any

 4     movement and spilling.  Therefore, General Lazarevic clearly said what

 5     his understanding of the reasons why the civilian population on -- were

 6     on the move was, states the air raids as the reasons.  He clearly asks

 7     from his personnel to find relevant facilities, to set out the forces,

 8     and these forces that were sent out to protect the civilian population

 9     should provide the protection indeed, and, as it is stated here, prevent

10     any movement and spilling.  Therefore, General Lazarevic ordered that any

11     deportation or forcible transfer be prevented.

12             Likewise, in Exhibit 5D372 on the 22nd of April, that's to say

13     less than a month after the start of bombing, General Lazarevic gave an

14     assessment that it was on account of NATO raids and a terrorist activity

15     that the civilian population was on the move.  Under 3, he states in this

16     order:

17             "Speed up the return of civilians who are returning to the

18     villages and towns from where they were moved out.  Do not allow civilian

19     refugee groups to remain in the areas of defence of the brigades.  Ensure

20     a safe return of refugees to the places that they left previously."

21             So this clearly shows an instance where General Lazarevic is

22     asking from his subordinates that all those persons who left their homes,

23     as we saw earlier on, because of NATO bombing and terrorist activities,

24     be allowed to and enabled to return home.  Is this a clear showing that

25     General Lazarevic was aware of deportations and forcible transfer and

Page 427

 1     that he was indeed making a significant contribution to such acts?

 2             Please look at 5D370 as well, where on the 23rd of April, a day

 3     after the earlier order of the 22nd April, General Lazarevic ordered

 4     under 3:

 5             "Accommodate the population in keeping with the already issued

 6     orders of the command of the Pristina Corps.  The population should be

 7     put up in the settlements and ensure that it is controlled.  Prevent any

 8     misconduct especially in the lower command structure with regard to the

 9     civilian population."

10             Those held responsible for this task, brigade commanders.  This

11     is 5D374.

12             Your Honour, Your Honours, we have provided numerous such

13     examples in our appeals brief, and this isn't the time to reiterate them

14     nor is it allowed.  We just wanted to draw your attention to some of

15     them.  You will find all the other orders in our brief and, more

16     importantly, you will find the reports which show that the subordinate

17     units reported to the General on the activities taken, which goes to show

18     that this was not just a piece of paper; rather, this was an attempt to

19     protect the civilian population in a state of war and that this was the

20     actual intention and wish on the part of General Lazarevic.

21             Your Honour, Your Honours, I believe I still have four or five

22     minutes left.  I'd like to address now the third question that you put,

23     respectfully.  The question was to discuss whether and under what

24     circumstances the mens rea of aiding and abetting, deportation, and other

25     inhumane acts, forcible transfer, may be inferred from the accused's

Page 428

 1     knowledge of crimes committed in 1998, including crimes other than

 2     deportation and other inhumane acts.

 3             In our appeals brief, we have already stated the position of the

 4     Defence about the knowledge of General Lazarevic of the crimes that the

 5     VJ forces committed in 1998.  We gave numerous examples showing that from

 6     the presence of foreign observers, whether the KDOM or the KVM, there

 7     were different views as to what the conduct of the VJ forces was.  The

 8     Defence holds that - and this is a humble answer to your question - that

 9     when it comes to the alleged crimes committed in 1998 and those committed

10     in 1999, they are not identical in essentials.  And since there is no

11     essential identity between these two, any possible knowledge of the

12     crimes in 1998 would, in our view, have no substantial effect on the

13     mens rea of aiding and abetting, deportation, and other inhumane acts.

14             In this particular case we had occasion to hear, although quite

15     unjustly, we didn't have an opportunity to adduce evidence on this, that

16     the -- these VJ activities in 1998 were in August and September.  After

17     the October Agreement, foreign observers arrived.  And since that point,

18     up until the start of NATO bombing on the 24th of March, 1999, there were

19     no combat activities.  If there was an incident, it was sporadic, save

20     for perhaps one or two incidents.

21             There was a very important interruption in the sequence of

22     events, in our view.

23             Now, since there are factors which interrupt the chain of events,

24     they support the conclusion that there should also be an interruption in

25     the natural sequence of consequences.  If this notion of direction is

Page 429

 1     implied in the finding about the existence of substantial assistance,

 2     then there must also exist a connection between actions and crimes that

 3     the Prosecution must prove beyond reasonable doubt.  Because there is

 4     such an interruption in the chain of events, under no circumstances can a

 5     finding be made that the mens rea of aiding and abetting, deportation,

 6     and forcible transfer can be inferred from the events that transpired in

 7     1998.  In 1998 there was allegedly excessive use of force, and in 1998 we

 8     had the internally displaced persons.  There were no deportations or

 9     forcible transfers.  We talk about internally displaced persons in our

10     brief.

11             JUDGE LIU:  Well, one thing, I would like to seek your

12     clarification.  On the transcript, 42 , 17, it says, "They are identical

13     in essentials."  I wonder whether it should be, "They are not identical

14     in essentials"?

15             MR. BAKRAC: [Interpretation] Yes, they are not.  They are not

16     identical.

17             JUDGE LIU:  Thank you.  I think you are out of our time allocated

18     to you, but I give you one minute to finish your submission.

19             MR. BAKRAC: [Interpretation] Your Honours, thank you.  I'm

20     certainly not a better lawyer than Mr. Ackerman, but I am certainly much

21     poorer timekeeper.  If you will allow me that one minute to say that our

22     Defence is convinced that in the sea of evidence that we have presented,

23     you will discern the errors the Trial Chamber made in their factual and

24     legal findings that have occasioned a miscarriage of justice.  I'm sure

25     that the Appeals Chamber will do that and that General Lazarevic will


Page 430

 1     live to see justice done.  Thank you.

 2             JUDGE LIU:  Thank you very much.

 3             It seems to me there's no questions from the Bench.  Now we would

 4     like to hear the Prosecution's response.

 5             MR. MARCUSSEN:  Thank you, Your Honours.

 6             Your Honours, General Lazarevic was one of the most important

 7     linchpins for the implementation of the common criminal purpose.  As the

 8     highest tactical commander of the large VJ force in Kosovo,

 9     General Lazarevic's assistance and support was required to plan joint

10     VJ-MUP operations and deploy VJ troops and equipment on the ground.

11             Lazarevic acted with Pavkovic, the 3rd Army commander, and others

12     to plan and co-ordinate joint operations through which the campaign of

13     forcible expulsions in Kosovo was unleashed.  In pursuit of this planning

14     and General Lazarevic's Joint Command orders, VJ troops using VJ weaponry

15     and resources systematically and brutally expelled more than 700.000

16     Kosovo Albanians from their homes over the border to Albania in little

17     over three months.  As the campaign of terror unfolded, Lazarevic's

18     troops reported back up the chain of command that operations had gone

19     according to plan and he himself reported upwards to Pavkovic in the

20     3rd Army.

21             Despite his intimate and protracted involvement in the operations

22     that targeted the Kosovo Albanian population, the Trial Chamber rendered

23     a very cautious conviction of Lazarevic for aiding and abetting forcible

24     displacements by his VJ forces that was based on a careful and detailed

25     consideration of the totality of the evidence in the case.  Lazarevic has

Page 431

 1     shown no error in these cautious findings and his appeal should be

 2     dismissed.

 3             I should perhaps just be clear and say that it is the

 4     Prosecution's position that some of the Trial Chamber's findings, in

 5     fact, were too cautious as will be discussed by my colleagues on Friday.

 6             Your Honours, to give a road map to you for what I'm going to be

 7     saying this morning, first, I will explain why General Lazarevic's appeal

 8     should be dismissed; second, I will respond to Your Honours' questions

 9     which we have labelled questions five, six, and seven; and third, I will

10     turn to the issues arising from the Perisic appeals judgement.  I expect

11     to be about an hour and a half so there should be room for questions

12     whenever Your Honours wish to.

13             Now, first, turning to General Lazarevic's appeal and why it

14     should be dismissed.  Most of General Lazarevic's appeal is simply a cut

15     and paste from his final trial brief.  His appeal essentially boils down

16     to his disagreement with and different evaluation of the evidence from

17     the Trial Chamber's assessment of evidence in the case.  He fails to show

18     any errors in the judgement; that is to say, he fails to show that the

19     assessment was unreasonable and occasioned a miscarriage of justice.  He

20     has failed to meet the standard of review.

21             Your Honours, General Lazarevic's argument fall into a number of

22     categories that we have discussed in our response brief and I'm not going

23     to go into that again here, but one category is, as I mentioned, mere

24     repeats of submissions made at trial.  I would also like to point out

25     that my learned colleagues do not make reference correctly to the

Page 432

 1     Trial Chamber's findings and the use of evidence needs to be closely

 2     scrutinised.  At page 6, for example, submissions were made regarding the

 3     Srbica events and it was stated that the evidence showed and the findings

 4     were in the judgement that there was a whole range of exculpatory

 5     reports.  But, Your Honours, the events that are being discussed in the

 6     judgement took place in March.  If Your Honours look at the exhibits that

 7     were referred to by the Defence, they all are reports from a month later,

 8     from the 20th of April, from the 3rd, 5th, and 16th of May, so they have

 9     absolutely no bearing on the Trial Chamber's findings about what happened

10     in March.

11             And, Your Honours, there are also issues about how the

12     Trial Chamber's findings are being presented.  Today at transcript

13     page 38, there's a discussion -- there was a discussion of paragraph 906

14     of the judgement.  It was said that it was found by the Trial Chamber

15     that General Lazarevic had no intention to displace the civilians.  It

16     was being said as if that was a finding in that paragraph.  It is not.

17     That paragraph actually says that he did have the intent but that there

18     was also evidence that he was trying to make efforts to ensure it was

19     done in a non-violent way which is completely different.  The finding was

20     that he had intent to displace, but as we know from the judgement there

21     was no sufficient evidence to convict him of other crimes.  We'll get

22     back to some of that on Friday.

23             So, Your Honours, we submit as we did in the Prosecution's

24     response brief, that General Lazarevic's appeal should be summarily

25     dismissed on the basis of the consistent jurisprudence of the

Page 433

 1     Appeals Chamber in Krajisnik, Martic, Strugar, and Brdjanin.

 2             That leads me to addressing Your Honours' fifth question.

 3     Your Honours have asked the parties to address with reference to the

 4     Trial Chamber's findings whether a breach of duty imposed by national,

 5     military, disciplinary law may amount to aiding and abetting by omission

 6     under customary international law.

 7             Your Honours, we submit that in this case it is actually not

 8     necessary for the Appeals Chamber to determine whether a duty imposed by

 9     national military disciplinary law alone may amount to aiding and

10     abetting by omission under customary international law.  The duty of a

11     commander to prevent or punish violations of international humanitarian

12     law by his subordinate is one of the most fundamental duties imposed by

13     the laws and customs of war.  The ICRC study on customary international

14     humanitarian law calls it "a long-standing rule of customary

15     international law."  And that is ICRC study -- yes, ICRC study rule 153.

16             The duty is encapsulated in the provisions of

17     Additional Protocol I, Articles 86 and 87, but was used as the basis for

18     conviction of commanders following the Second World War in the

19     High Command Case and the Yamashita case.  It is also recognised in the

20     ICTY case law as an international duty under which criminal liability

21     under Article 7(1) could arise for a breach; for example, in the Blaskic

22     appeals judgement, paragraphs 663 and 664.

23             Aiding and abetting by omission based on a breach of duty in

24     international law is not in question.  That's found in the Mrksic appeal

25     judgement at paragraph 151.

Page 434

 1             The Trial Chamber recognised that a commander's duty to prevent

 2     or punish crimes by his subordinates can arise to 7(1) liability at

 3     Volume I, paragraph 90, and Volume III, paragraph 622.  In addition, when

 4     discussing Article 7(3), the Chamber stated that:

 5             "The duty to prevent and the duty to punish are distinct and

 6     separate responsibilities under international law, and an omission to

 7     carry out either duty may give rise to its own charges in an indictment."

 8             THE INTERPRETER:  Interpreters kindly ask the counsel to slow

 9     down.  Thank you.

10             MR. MARCUSSEN:  My apologies.

11             This is found in Volume I, paragraph 116, and I refer

12     Your Honours also to the Hadzihasanovic appeal judgement, paragraph 259,

13     and the Blaskic appeal judgement, paragraph 83.

14             While the Trial Chamber explored national military justice laws

15     and regulations, this was relevant evidence of Lazarevic's material

16     ability to act and the types of measures that were open to him in his

17     position to prevent crimes and punish crimes by his subordinates.  And

18     this analysis is found in Volume I, paragraph 518 to 523.  These national

19     laws reflected and incorporated commanders' duties under international

20     law.

21             Unless Your Honours have questions, I will move to the next

22     question.  Thank you.

23             Turning to -- now to your sixth question which asks the parties

24     to discuss as a legal matter as well as with respect to the particular

25     Trial Chamber's findings whether the actus reus and mens rea of aiding

Page 435

 1     and abetting that formed part of the JCE may be fulfilled prior to the

 2     existence of the common purpose of the JCE.

 3             Your Honours, as a matter of law, the timing of the existence of

 4     the common purpose in this case is irrelevant to General Lazarevic's

 5     conviction for aiding and abetting.  Under our law the aider and abettor

 6     has to contribute to the commission of the crime, not to the joint

 7     criminal enterprise.  That's found in Kvocka appeals judgement,

 8     paragraph 91.

 9             It is well established in the jurisprudence that aiding and

10     abetting can take place before, during, and after a crime occurs.  And I

11     refer, Your Honours, for example, to the Nahimana appeals judgement,

12     paragraph 482; and the Blagojevic and Jokic appeals judgement,

13     paragraph 127; Simic appeals judgement, paragraph 85; and the

14     Blaskic appeals judgement, paragraph 48.

15             Now, in this case crimes of forcible displacement were committed

16     between March and June 1999, as set out in detail in Volume I.  The

17     crimes were committed both by the JCE members but also by the physical

18     perpetrators who were found to have the intent to deport.  There's

19     specific findings at the end of each section dealing with the different

20     crime bases about the perpetrators' intent.  I'll just refer Your Honours

21     to the general findings in Volume III, paragraph 92 and 95.  If

22     Your Honours wish, I can also provide references to all the paragraphs in

23     Volume II, but it may not be necessary.  Thank you.

24             However, neither the identity of the perpetrators nor whether

25     they shared the intent with someone else, i.e., they formed a JCE, is

Page 436

 1     relevant for aiding and abetting.  Indeed "a defendant may be convicted

 2     of having aided and abetted a crime even if the principal perpetrators

 3     have not been ... identified."

 4             That's found in the Brdjanin appeal judgement, paragraph 355; and

 5     the Krstic appeal judgement, paragraph 143.

 6             The coincidence of General Lazarevic's actus reus and mens rea

 7     occurred before and during the commission of deportations in 1999.

 8     General Lazarevic was aware that crimes of forcible displacement were

 9     probably going to be committed by VJ forces and he knowingly provided

10     assistance to the commission of these crimes.  His assistance

11     substantially contributed to the forcible displacement crimes for which

12     he was convicted.  That is all that is required for him to be held

13     responsible as an aider and abettor.  And this brings me, unless there

14     are questions, to question number seven.

15             Question number seven asked whether and under what circumstances

16     the mens rea of aiding and abetting deportation and forcible transfer may

17     be inferred from the accused's knowledge of crimes committed in 1998,

18     including other crimes than deportation and forcible transfer.

19             In short, Your Honours, the Prosecution's position is that yes,

20     Lazarevic 's knowledge of crimes committed in 1998 is relevant in

21     establishing his mens rea for aiding and abetting crimes that occurred in

22     1999.  My colleague, Ms. Monchy, has already provided Your Honours with

23     the legal basis for such an approach.  And indeed, it is common and quite

24     proper use of evidence adopted and approved by many Trial and

25     Appeals Chambers at this Tribunal.  As a matter of law, there are no

Page 437

 1     specific circumstances in which this is not allowed.  It is ultimately a

 2     factual or evidentiary question.

 3             I will therefore just address Your Honours on the facts of this

 4     case relating to General Lazarevic.  General Lazarevic's knowledge of the

 5     massive forcible displacements in 1999 -- excuse me, 1998, is directly

 6     relevant to his knowledge of the substantial likelihood that the same

 7     crimes being committed during 1999.

 8             In addition, the nature of some of the other crimes such as arson

 9     and murder as well as the scale of them in 1998 is also relevant to his

10     knowledge of the substantial likelihood of forcible displacements in

11     1999.

12             THE INTERPRETER:  The Prosecutor is kindly asked to take into

13     account interpretation and slow down.  Thank you.

14             MR. MARCUSSEN:  I do apologise once again.

15             Your Honours have heard about the many sources of knowledge of

16     the 1998 crimes from my colleagues already this week.  I will, a bit

17     later, distribute a bundle of material where we will be referring to some

18     specific material in the bundle we have prepared, and in that bundle you

19     will find some charts similar to the ones you have been given yesterday.

20     Since I don't propose to go through those charts specifically -- I see

21     your colleague is handing them out.  Okay, let's hand them out now.

22             Your Honours, my -- I'm sorry.  I can see Judge --

23             JUDGE LIU:  I guess there's no objections from the defendants for

24     us to have this bundle of --

25             MR. BAKRAC:  [No interpretation]

Page 438

 1             JUDGE LIU:  Thank you.

 2             MR. BAKRAC: [Interpretation] Unless that is being admitted as

 3     evidence.

 4             JUDGE LIU:  No, of course not.

 5             MR. MARCUSSEN:  Thank you, Your Honours.  And thank you to my

 6     learned colleagues.

 7             Your Honours, in this bundle there are two -- there are two

 8     tables:  One set out the source of General Lazarevic's knowledge of

 9     crimes in 1998 and the other table sets out the sources of knowledge in

10     1999.  I'm afraid there's a typo on the front page of the overview, but I

11     think it's self explanatory.  As I said, I'm not intending to go through

12     this in any detail today as all of these sources have been discussed so

13     exhaustively already during the proceedings in this appeal.  Of course,

14     if there are questions I'm happy to address them.

15             But what all of this shows is that General Lazarevic knew of a

16     broad range of crimes such as looting, arson, and murder which were

17     committed repeatedly by the VJ and the MUP against Kosovo Albanians in

18     1998.  In addition, Lazarevic was informed of the massive flight of

19     civilians that resulted from these crimes and the heavy-handed tactics

20     used by joint VJ-MUP forces.

21             It was with this knowledge that General Lazarevic became the

22     commander of the Pristina Corps in 1999.  Knowing that his VJ forces had

23     frequently violated -- sorry, had frequently committed violent crimes

24     that had resulted in massive forcible displacements of Kosovo Albanians,

25     he knew that there was a substantial likelihood that these same troops

Page 439

 1     acting in similar joint operations with the MUP would continue to use the

 2     same heavy-handed tactics and extreme violence against the

 3     Kosovo Albanian population and that the Kosovo Albanians would be forced

 4     to flee as a result.  The Trial Chamber reasonably held that in 1999

 5     General Lazarevic was "aware that similar excessive use of force and

 6     forcible displacements were likely to occur if he ordered the VJ to

 7     operate in Kosovo in 1999."  Volume III, paragraph 923.

 8             So on the facts of this case, Lazarevic's knowledge of crimes in

 9     1998 included deportations and forcible transfer and was directly

10     relevant to the same crimes being committed in 1999.  However, the

11     Prosecution submits that if General Lazarevic knew from the events in

12     1998 that VJ forces would probably commit widespread crimes, including

13     looting and burning of homes, and inflict extreme violence on civilians

14     in 1999, then he would also have known that the civilian population would

15     probably be forced to flee in order to escape this.  Therefore, his

16     knowledge of widespread crimes including violence was relevant to his

17     knowledge of the probability of forced displacement.

18             And finally, I would like to stress that the Trial Chamber's

19     findings on General Lazarevic's knowledge in 1998 was just one of many

20     strands which enabled -- which established his knowledge and his mens rea

21     for aiding and abetting during events in 1999.  This is illustrated by

22     the second table that I discussed at the beginning of my answer to

23     Your Honours' question.  Again, I'm not suggesting that we necessarily

24     need to look at it today.

25             I would like at the end of my submission on question seven to

Page 440

 1     note that I got the impression that my learned friends were arguing a new

 2     ground of appeal today.  It was said that the Rome Statute of the ICC had

 3     a purpose standard for aiding and abetting and that that purpose standard

 4     should be applied by this Appeals Chamber in this case.  Your Honours,

 5     first of all, the mens rea standard of this Tribunal is clear.  The

 6     standard is knowledge of a substantial likelihood.  It is not a purpose

 7     standard.  And secondly, the Rome Statute is not binding on the ICTY and

 8     is not necessarily a reflection of customary international law, and we

 9     would submit actually on this point it is not.  We would refer

10     Your Honours to the Katanga and Ngudjolo confirmation decision,

11     paragraphs 507 and 508 regarding the binding nature of the ICC Statute

12     and also to the ICC Statute Article 10.

13             Your Honours, this includes -- unless I may further assist in

14     relation to Your Honours' questions the Prosecution's response to the

15     three questions that were put.  No.

16             Thank you, Your Honours.  Your Honours, I now turn to address the

17     Perisic appeal judgement.  First, I will show that there are cogent

18     reasons for the Appeals Chamber to depart from the Perisic appeal

19     judgement and specifically its findings on specific direction.  And

20     second, I will submit that if the Appeals Chamber does not find cogent

21     reasons, then General Lazarevic's conviction should not be disturbed

22     because of the Perisic appeal judgement.

23             Turning to the first point on cogent reasons.  There are four

24     important cogent reasons to depart from the Perisic appeal judgement on

25     specific direction.  First, the Perisic appeal judgement has created a

Page 441

 1     new specific direction element for aiding and abetting which is not found

 2     in customary international law.  Second, the Perisic appeal judgement

 3     incorrectly interprets the Appeals Chamber's consistent jurisprudence.

 4     Third, it introduces vague concepts which lead to considerable

 5     uncertainties and difficulties in practice.  And fourth, it undermines

 6     the respect for international humanitarian law and is against the

 7     interests of international justice.

 8             First, customary international law does not require specific

 9     direction as an element for aiding and abetting.  I will not embark on a

10     full exploration of customary international law today; that is not

11     necessary.  It was already done by this Tribunal 15 years ago.  Customary

12     international law on aiding and abetting was thoroughly examined in the

13     Furundzija trial judgement.  In a 20-page analysis of relevant

14     international instruments and jurisprudence, the Furundzija trial

15     judgement concluded that the mens rea of aiding and abetting according to

16     customary international law is knowledge.  And it held that "the

17     actus reus of aiding and abetting in international criminal law requires

18     practical assistance, encouragement, or moral support which has a

19     substantial effect on the perpetration of the crime."  Furundzija trial

20     judgement paragraphs 249 and 235.  And there's no mention of any specific

21     direction requirement.

22             Only seven months later the Furundzija Trial Chamber -- sorry, I

23     start that again.

24             Only seven months after the Furundzija trial judgement, the

25     Appeals Chamber rendered its judgement in the Tadic case.  It contained

Page 442

 1     no analysis of or reference to customary international law on aiding and

 2     abetting.  And it is in that judgement that the wording "specific

 3     direction" appears for the first time in the Tribunal's jurisprudence.

 4     And it appears -- in the context in which it appears it indicates that

 5     the Appeals Chamber did not want to add a new element to aiding and

 6     abetting and this can be seen in the Tadic appeal judgement

 7     paragraph 229(iii).

 8             Specific direction was used only to explain some distinctions

 9     between aiding and abetting and joint criminal enterprise and not to add

10     a new element.  The Appeals Chamber did not explain where the wording

11     "specific direction" came from; it provided no reasons as to why such a

12     requirement is needed.  It surely would have done so if it had intended

13     to change or give guidance on the meaning of the Furundzija elements.

14             Moreover, Your Honours, the conclusions of the

15     Furundzija Trial Chamber were explicitly approved by the Appeals Chamber

16     in the Aleksovski appeal judgement at paragraph 162.  As we will return

17     to later, it is also clear from the Aleksovski appeal -- of the -- sorry.

18     It is also clear from the Aleksovski Appeals Chamber's explanation of the

19     Tadic appeal judgement that it did not understand it as containing a

20     "specific direction" element for aiding and abetting.  None of the

21     subsequent judgements that have reproduced the Tadic language discusses

22     customary international law on the basis of specific direction as a

23     requirement.

24             It is therefore clear that customary international law, as

25     authoritatively interpreted by the Tribunal, do not require specific

Page 443

 1     direction for aiding and abetting liability, neither on the actus reus

 2     nor on the mens rea side.  I would note as an aside here that the

 3     Perisic Appeals Chamber --

 4             JUDGE LIU:  Yes, Judge Pocar has a question.

 5             JUDGE POCAR:  May I ask you for your assistance.  You said none

 6     of the subsequent judgements have reproduced the Tadic

 7     language discuss -- discussed international law on the basis of specific

 8     direction as a requirement.  Can you mention these judgements if you have

 9     the references?  What judgements are you referring to exactly --

10             MR. MARCUSSEN:  The --

11             JUDGE POCAR:  -- when you mentioned the judgements that have

12     reproduced the Tadic language?

13             MR. MARCUSSEN:  They are referred to in footnote 100 of the

14     Perisic appeal judgement, but there are numerous judgements which have

15     listed -- have lifted, if you like, the language of Tadic in setting out

16     what the elements of aiding and abetting are.  But none of them have had

17     a discussion of -- it's a -- if I may, for consistency there have been a

18     repetition of the very wording but there have never been a new

19     interpretation of the language.  That was the point I was trying to make.

20     And we will provide you with a list of the cases if Your Honours will

21     allow my colleague to compare --

22             JUDGE POCAR:  So --

23             MR. MARCUSSEN:  -- if I may come back to this with a list of the

24     specific case references I will do that in a little bit.

25             JUDGE POCAR:  So your point is that the only judgement that

Page 444

 1     discusses that and gives an interpretation is Aleksovski?

 2             MR. MARCUSSEN:  Correct.

 3             JUDGE POCAR:  Thank you.

 4             JUDGE LIU:  Well, counsel, I will ask you a question.

 5             MR. MARCUSSEN:  Of course, Your Honour.

 6             JUDGE LIU:  If you claim that specific direction is not an

 7     element for the aiding and abetting, how could you distinguish the law

 8     force support to a legitimate military action with the aiding and

 9     abetting of the criminal acts?  Do you think the existing elements of the

10     aiding and abetting is enough for that?

11             MR. MARCUSSEN:  Yes, Your Honour.  And I will be addressing this

12     at the very end as the fourth cogent reason.  But in sum, Your Honour, we

13     submit that it cannot be a question of the position of the specific

14     perpetrator or the specific factual scenario which by the legal analysis

15     of the elements of aiding and abetting.  There's one set of elements for

16     aiding and abetting that apply to everyone and ultimately it would be a

17     factual determination whether assistance from one military organisation

18     to another or whatever the factual scenario is, whether the elements of

19     aiding and abetting are met based on the knowledge and substantial

20     contribution standards that we have in the Tribunal.  I don't know if

21     that answers Your Honour's question.  Thank you, Your Honour.

22             So what I want to mention as an aside is that in the

23     Perisic Appeals Chamber's judgement when it discusses the development of

24     the jurisprudence on aiding and abetting, there's actually no reference

25     neither to the Tadic -- sorry, neither to the Furundzija trial judgement

Page 445

 1     nor to the endorsement of that judgement in the Furundzija appeal

 2     judgement -- I'm sorry, to the Furundzija trial judgement or the

 3     Aleksovski appeal judgement it should have been.

 4             Your Honours, the Perisic appeal judgement does not discuss

 5     customary international law except for one reference in footnote 115 to

 6     one World War II case, Zyklon B, which it incorrectly represents as

 7     supporting specific direction.  It describes the case as "finding two

 8     defendants guilty of assisting crimes [sic] of concentration camp

 9     detainees by providing gas, despite arguments that the gas was to be used

10     for lawful purposes ...," and then, "... after reviewing evidence that

11     the defendants arranged for S.S. units to be trained in the use of this

12     gas to kill humans."

13             Your Honours, I respectfully submit that there is no way that the

14     Zyklon B case can be interpreted in this way.  And if I may refer to the

15     handout that I provided Your Honours this morning.  We have included an

16     excerpt of the Zyklon B case, and I would invite Your Honours to look at

17     this case with me.  I would first like to draw Your Honours' attention to

18     page 100 of the case which is on the second page of this little bundle.

19             Your Honours will see how the Prosecution presented the case in

20     its closing arguments.  The essential parts I'm going to go through are

21     numbers 1, 2, 3, and 4.  First the Prosecution said that the essential

22     question was whether the accused knew of the purpose to which that gas

23     was being put.

24             Later on this report explains that:

25             "Counsel said that it was unbelievable that Dr. Tesch did not

Page 446

 1     know that anything wrong went on in the concentration camps."

 2             Again, clearly knowledge.

 3             The Prosecution also said that:

 4             "It was ...  unbelievable that Dr. Tesch had no knowledge of the

 5     amount of gas being supplied to the S.S. and to Auschwitz in particular

 6     by a firm which was wholly his property."

 7             But also when the Judge Advocate summed up the case, the

 8     Judge Advocate at the passage that I've marked with a number 4 said that

 9     there were three facts which had to be considered.  And the third fact

10     was -- as I said:

11             "Thirdly, the accused knew that the gas was to be used for the

12     purpose of killing human beings."

13             It is true that in the case there was some evidence of training,

14     but that evidence was discussed in the judgement at paragraph -- at

15     page 95 and the Defence contested this evidence and the Prosecution, as

16     we can see, did not rely on it.  I haven't included these passages but

17     it's at pages 95, 97, and 99.

18                           [Prosecution counsel confer]

19             MR. MARCUSSEN:  This interpretation by the Perisic appeal

20     judgement of Zyklon B is all the more astonishing in that the Zyklon B

21     case is discussed in quite some detail in the Furundzija trial judgement

22     in paragraphs 222 and 223, which is a judgement which was approved by the

23     Aleksovski appeal judgement.

24             So, Your Honours, the Tribunal was created to prosecute those

25     most responsible for serious international crimes under customary

Page 447

 1     international law.  In customary international law, there is no specific

 2     direction element either in the actus reus or on the mens rea elements of

 3     aiding and abetting.  The Perisic appeal judgement, therefore, has

 4     departed from customary international law, which the Tribunal was created

 5     to apply.  This in itself is a cogent reason for the Appeals Chamber to

 6     depart from the Perisic appeal judgement.

 7             And before I move on, if I may just return to Judge Pocar's

 8     question, the cases on specific direction can be found in the

 9     Perisic appeal judgement in footnote 70 and not footnote 100 as I

10     incorrectly stated.  I apologise for that.

11             The second cogent reason to depart from the Perisic appeal

12     judgement is that it ignores and misrepresents the Appeals Chamber's

13     previous judgements which have explicitly rejected the specific direction

14     element.  First, the Furundzija appeal judgement completely ignores, as

15     I've mentioned -- I'm sorry, I keep making the same mistake, it seems.

16             First, the Perisic appeal judgement completely ignores the

17     Furundzija trial judgement and the Aleksovski appeals judgement

18     determination which limited the Tadic specific direction wording to its

19     context.

20             Your Honours, this -- there's an analysis found in -- of this in

21     paragraphs 162 to 164 of the Aleksovski appeal judgement which makes this

22     point, and I'll try to go through that in some detail now.

23             In paragraph 162, the Aleksovski appeal judgement endorses the

24     Furundzija trial judgement's statement of the elements of aiding and

25     abetting which was the knowledge standard and the substantial

Page 448

 1     contribution standard.  And then it explains Tadic in paragraph 163,

 2     which Your Honours have on the screen now.  It's a complicated paragraph,

 3     but it is nevertheless very clear.  So after having discussed and

 4     approved the Furundzija trial judgement it explains that:

 5             "Subsequently, in the Tadic judgement, the Appeals Chamber

 6     briefly considered the liability of one person for acts of another person

 7     where the first person has been charged with aiding and abetting that

 8     other person in the commission of a crime.  This was the context -- this

 9     was in the context of contrasting that liability with the liability of a

10     person charged with acting pursuant to a common purpose or design with

11     another person to commit a crime, and for that reason that judgement does

12     not purport to be a complete statement of the liability of the person

13     charged with aiding and abetting."

14             And then in the next paragraph, paragraph 600 -- sorry, 164, the

15     Aleksovski appeals judgement went on to clearly state -- set out the

16     actus reus element for aiding and abetting in a way which did not include

17     specific direction.  And further, this can -- that it did not consider

18     specific direction to be an element can also see when it applied the

19     aiding and abetting standard to the facts of the Aleksovski case.  I

20     refer to paragraphs 168 and 169.

21             So the Appeals Chamber at the time did not see any contradiction

22     between the Furundzija trial judgement and the Tadic appeal judgement

23     elements of aiding and abetting liability.  It did not understand the

24     Tadic appeal judgement as a definitive statement on aiding and abetting.

25     It did not understand the Tadic appeal judgement as adding a

Page 449

 1     distinction -- I'm sorry, to adding a distinct requirement of specific

 2     direction.

 3             The Perisic appeal judgement, however, goes back to Tadic and

 4     offers an alternative interpretation of the specific direction language

 5     which is the one that the Aleksovski appeal judgement excluded.  In the

 6     same way, the Perisic appeal judgement goes back to the Blagojevic appeal

 7     judgement and offers an interpretation which was explicitly rejected by

 8     the Appeals Chamber in Mrksic and Lukic.  And then it goes on to

 9     incorrectly interpret the Appeals Chamber's judgements in Mrksic and

10     Lukic, despite their explicit rejection of specific direction as an

11     element of aiding and abetting.

12             The Perisic appeal judgement interprets the Blagojevic appeals

13     judgement paragraph 189 as endorsing the existence of a specific

14     direction element in the actus reus of aiding and abetting.  That's in

15     paragraphs 31 and 32.  The Perisic appeal judgement's interpretation was,

16     however, rejected by the Appeals Chamber in both Mrksic and Lukic, in

17     which the appellants argued that specific direction was required as an

18     element and that it had not been fulfilled in those cases.  This was

19     therefore extensively briefed in both cases.  In Mrksic the appellant

20     argued that he could not be convicted of aiding and abetting because his

21     omissions were specifically directed to [sic] assist, encourage, or lend

22     moral support to the perpetration of the crimes that he had been

23     convicted of -- that he were not specifically convicted of.

24             The Perisic appeal judgement misapprehends the Mrksic appeal

25     judgement when at paragraph 33 it states that the Mrksic Appeals Chamber

Page 450

 1     never [sic] discussed specific direction in the context of mens rea.

 2     This is incorrect.  I'm sorry, that it only discussed -- only discussed

 3     it in the context of mens rea.  This is incorrect.

 4             While Sljivancanin had raised the issue as a mens rea issue, the

 5     Appeals Chamber emphasised that "Sljivancanin misapprehends the mens rea

 6     standard applicable to aiding and abetting" and clarified that it should

 7     have been raised as an actus reus issue.  The Appeals Chamber then

 8     explicitly rejected his argument, finding that specific direction was

 9     "not an essential ingredient of the actus reus of aiding and abetting,"

10     Mrksic appeal judgement paragraph 159.  There is nothing ambiguous about

11     this express rejection.  Furthermore, the question of whether specific

12     direction was an element of aiding and abetting was directly in issue and

13     had to be decided by the Appeals Chamber.  Its rejection of specific

14     direction was an essential part of its reasoning and was not a mere

15     passing reference, as it was put in the appeals judgement in Perisic,

16     because the point had to be decided to affirm the conviction.

17             And the point was again affirmed -- confirmed in the Lukic appeal

18     judgement paragraph 424, where the Appeals Chamber said:

19             "In Mrksic and Sljivancanin the Appeals Chamber has clarified

20     that specific direction is not an essential ingredient of the actus reus

21     of aiding and abetting" and then it finds that there are -- there is no

22     cogent reason to depart from this jurisprudence.

23             The Perisic Appeals Chamber's attempt to distinguish or reconcile

24     these judgements with its own preferred interpretation of the law at

25     paragraphs 32 to 36 is untenable given the Mrksic and Lukic Appeals

Page 451

 1     Chamber's plain language rejecting specific direction.

 2             Further, like in Blagojevic, the Appeals Chambers in Mrksic and

 3     Lukic did not conduct any assessment as to whether a specific direction

 4     finding was in fact implicit in the substantial effect and knowledge

 5     findings by the Trial Chamber.  Moreover, both the dissenting opinions of

 6     Judge Guney at paragraphs 10 and 11 and of Judge Agius in Lukic confirmed

 7     that the Appeals Chamber's judgements in these two cases were plainly

 8     rejecting specific direction as an element of aiding and abetting.

 9             In sum, Your Honours, the Perisic appeal judgement's finding that

10     specific direction is an element of the actus reus of aiding and abetting

11     ignores the specific findings in the Aleksovski appeal judgement about

12     the meaning of Tadic; it misinterprets Blagojevic in a manner which has

13     been explicitly denied by the Appeals Chamber in Mrksic and Lukic.  The

14     Appeals Chamber's flawed analysis in Perisic should be departed from.

15             And, Your Honours, the Appeals Chamber should find that the

16     serious misinterpretation of the Tribunal's long-standing jurisprudence

17     rejecting specific direction is a cogent reason to depart from the

18     Perisic appeal judgement.

19             The third cogent reason --

20             JUDGE LIU:  Well, counsel --

21             MR. MARCUSSEN:  Yeah.

22             JUDGE LIU:  -- I wonder whether it's the right time for us to

23     stop here since you are going to the third element of your submission --

24             MR. MARCUSSEN:  Certainly, Your Honour, we can do that and then

25     continue after.

Page 452

 1             JUDGE LIU:  Thank you very much.

 2             We'll resume at 2.30 this afternoon.

 3                           --- Luncheon recess taken at 12.58 p.m.

 4                           --- On resuming at 2.29 p.m.

 5             JUDGE LIU:  Yes, Mr. Marcussen, you may proceed.

 6             MR. MARCUSSEN:  Thank you, Your Honour.

 7             So, Your Honours, I'm turning to the third cogent reason.  As the

 8     Aleksovski Appeals Chamber pointed out:

 9             "The fundamental mandate of the Tribunal to prosecute persons

10     responsible for serious violations of international humanitarian law

11     cannot be achieved if the accused and the Prosecution do not have the

12     assurance of certainty and predictability in the application of the

13     applicable law."  Paragraph 113(ii).

14             A third cogent reason to depart from the Perisic appeal judgement

15     is that it introduces vague concepts which lead to considerable

16     uncertainties and practices as illustrated by my learned friend's

17     arguments this morning.  The Perisic appeal judgement introduces new

18     elements into the law of aiding and abetting specific direction and the

19     proximity/remoteness of an accused which has not been applied before.

20     Parties, the Prosecution, Chambers, in this Tribunal and others will now

21     have to grapple with their application.  These new concepts are unclear

22     and problematic.

23             The Perisic appeal judgement does not explain what specific

24     direction as an objective element actually is, but simply states that it

25     is a culpable link, paragraphs 37, 38, and 44.

Page 453

 1             Further, there appear to be considerable disagreement between the

 2     Judges in their separate and dissenting opinions.  Four out of five

 3     Judges in the Perisic Appeals Chamber suggest that specific direction is

 4     more akin to a mens rea element, Judges Meron and Agius in their separate

 5     opinion at paragraph 4; Judge Liu dissenting at paragraph 2 and

 6     footnote 7; Judge Ramaroson, separate opinion paragraphs 7 and 9.

 7             And in the application of specific direction to the facts of the

 8     Perisic case, the Appeals Chamber appears to consider it a cognitive

 9     element going beyond knowledge of assistance seeking purpose, at

10     paragraph 69.

11             The implication of the Perisic appeal judgement is that the

12     culpable link will require evidence that the aider and abettor's mens rea

13     exceeded the knowledge standard to something akin to purpose.  Yet, the

14     Perisic appeal judgement reasserts that the mens rea for aiding and

15     abetting is knowledge, not purpose, at paragraph 48, as established by

16     the long standing jurisprudence of the Tribunal.  The apparent

17     contradiction is difficult to understand or to reconcile in practice.

18             The Perisic appeal judgement also blurs the lines between aiding

19     and abetting and JCE, thus undermining the purpose of aiding and abetting

20     liability.  If an aider and abettor now has to specifically direct his

21     assistance to a crime, then there is no difference in the mental state of

22     an aider and abettor and the JCE members who share the common purpose.

23             The Perisic appeal judgement also creates considerable

24     uncertainty because it introduces a new notion of remoteness without any

25     basis in the jurisprudence of the Tribunal.  In order to distinguish the

Page 454

 1     prior judgements which did not explicitly apply a specific direction

 2     requirement, the Perisic Appeals Chamber states that the accused in those

 3     previous judgements were proximate aider and abettors such that a

 4     specific direction finding could have been implicit in the findings

 5     regarding other aiding and abetting elements, at paragraph 38 and in

 6     footnote 100.

 7             In doing so, it sets two evidentiary standards for aiding and

 8     abetting, one for a proximate aider and abettor which do not require

 9     explicit consideration and reasoning for one of the elements; and a

10     different one for a remote aider and abettor, where explicit

11     considerations and reasons must be given.

12             And, Your Honours, the confusion was illustrated this morning.

13     My learned friends understand the specific direction element to require

14     that the accused was present when the crimes were being committed.  We

15     submit that that's not the case.  Somebody like Krstic who was convicted

16     as an aider and abettor, for example, was not present when the crimes

17     were committed, but that this issue come up certainly shows how confusing

18     the situation has now become.

19             It is also confusing because proximity is not defined -- is not

20     determinative of the nature or impact of assistance nor of a

21     contributor's knowledge or frame of mind.  For example, a remote

22     perpetrator may be able to recognise a wider pattern of crimes or the

23     systematic nature of crimes which he is assisting and may be able to make

24     much more substantial contributions or assistance in crimes.

25             Furthermore, the Appeals Chamber did not indicate where the

Page 455

 1     boundaries between remoteness and proximity might lie.  It only indicated

 2     that it is a fact-based analysis which "will depend on the individual

 3     circumstances of the case," and that relevant factors include significant

 4     temporal distance and geographical distance.  However, it also stated

 5     that this list is not exhaustive, paragraph 40.

 6             These uncertainties may lead to serious problems in practice as

 7     individuals will not be able to understand when their acts may lead to

 8     liability.  Trial Chambers may also have difficulties applying the test

 9     imposed by the Perisic appeal judgement.  The Appeals Chamber should find

10     the problems and uncertainties created by the Perisic appeal judgement

11     provide a cogent reason to depart from it.

12             And if Your Honours will excuse me just for one second.

13                           [Prosecution counsel confer]

14             MR. MARCUSSEN:  Your Honours, I now turn to the fourth cogent

15     reason and I will be returning to Judge Liu's question as well -- sorry,

16     maybe there's a question beforehand.

17             JUDGE LIU:  Yes, before that could I put a question to you.  I

18     think this morning the appellant submits that it was necessary to

19     establish the accused was present at each specific places where a crime

20     is committed so that to establish the aiding and abetting responsibility

21     of the accused.  And I understand that your position is the remoteness or

22     proximity is not an essential element in the actus reus of the aiding and

23     abetting.  Maybe just because of this question of remoteness the

24     Appeals Chamber of Perisic case introduced the "specific direction"

25     elements in this aspect.  Do you have anything to say in this area?

Page 456

 1             MR. MARCUSSEN:  Your Honours, I certainly agree that the Perisic

 2     judgement could be read in that way, and I would submit that raises an

 3     additional serious issue with that judgement.  We submit that it cannot

 4     be the case that different legal standards apply to accused at different

 5     levels or different distances, whatever that remoteness means, from a

 6     crime.  There must be one legal standard that applies to all, that must

 7     be a fundamental principle that also this Tribunal applies.

 8             But I agree with that it -- the Perisic judgement could be seen

 9     as introducing this element for specific type of cases.  As I said, we

10     submit that that would be highly problematic if that's actually what it

11     is.  That cannot be the law if there are different standards for

12     different accused.  As I will get back to in a little bit in answering --

13     when we get to cogent reason number four, we also submit that there is no

14     reason to introduce such new standards to deal with a specific problem

15     because the existing elements of aiding and abetting safe-guard against

16     any unreasonable convictions.  The sufficient -- the existing elements

17     provide -- set such a high threshold that there's not a risk that just

18     anybody who contributes -- who assists, say, a foreign government or

19     insurgency forces will be unreasonably convicted.  And we understand, of

20     course, the context is that it's unfortunately known that in many armed

21     conflicts there are elements who might commit crimes.  And I think we all

22     understand that it's -- it may be a concern if just the fact that it is

23     known that somebody may commit a crime, somebody who provide assistance

24     to the army can now suddenly be held responsible as an aider and abettor

25     in that crime.  But really the high standard we have for aiding and

Page 457

 1     abetting in the jurisprudence safe-guard against those kind of

 2     situations, just as somebody who legitimately sold handguns isn't found

 3     to be an aider and abettor in every single robbery that may be committed

 4     with that weapon that was sold.

 5             I hope that was of assistance.

 6             JUDGE LIU:  Thank you.  Yes, you may proceed.

 7             MR. MARCUSSEN:  Thank you.

 8             So, Your Honours, the fourth cogent reason is that the Perisic

 9     appeal judgement undermines the respect for international humanitarian

10     law.  Allowing persons to engage in conduct they know will substantially

11     contribute to a crime because it is not their specific aim to do so risks

12     undermining international humanitarian law.

13             The Perisic appeal judgement, as I mentioned, give rise to what

14     appears to be two fundamental implications.  First, the judgement

15     expressly states that the aider and abettor must specifically direct his

16     acts towards a crime or crimes; and second, from the actual findings of

17     that case when the Appeals Chamber applied specific direction to the

18     Perisic case, it appears that a remote aider and abettor who both knows

19     of the substantial likelihood that his acts will assist crimes and whose

20     conduct does, in fact, substantially assist in those crimes will not be

21     considered to have met the elements of aiding and abetting -- the element

22     of specific direction.

23             What is the outcome of this?  It means that a remote aider and

24     abettor who both knowingly and substantially contributes to widespread

25     and systematic crimes will escape liability for aiding and abetting.

Page 458

 1     Your Honours, this impunity gap cannot be accepted.

 2             And worse, the Perisic appeals judgement appears to require

 3     assistance to a purely criminal organisation in order for a remote aider

 4     and abettor to attract criminal responsibility.  Both governments -- but

 5     governments, armies, security forces, insurgency and rebel movements will

 6     hardly ever be purely criminal.  By introducing a requirement that

 7     contributions must be to purely criminal organisations, the impunity gap

 8     becomes so huge that little is actually left of aiding and abetting

 9     responsibility for remote perpetrators in practice.

10             The customary international law standard of aiding and abetting

11     promotes the respect for international humanitarian law.  The

12     Perisic appeal judgement undermines it.  The two elements of the

13     customary international law standard of aiding and abetting ensures that

14     there is no risk that anyone will be unreasonably convicted.  Only when

15     it's proven beyond a reasonable doubt that the accused know of the

16     substantial likelihood that his conduct would assist in the commission of

17     serious international crimes and when it's proven beyond a reasonable

18     doubt that his assistance actually had a substantial effect on the

19     commission of those crimes can he be held responsible as an aider and

20     abettor.

21             This was the question, I believe, that Your Honour, Judge Liu,

22     put.  The fact that there is a risk that sending troops or providing

23     equipment will lead to crime does not mean that a person is prohibited

24     from assisting a war effort or otherwise legitimate operations and will

25     not be held liable as an aider and abettor if he does so.

Page 459

 1             There are no safe-guards in customary international law of -- in

 2     the customary international law standard of substantial effect and

 3     knowledge of assistance to crimes to avoid this.  First, the standard of

 4     knowledge is quite high.  It is not sufficient to know of a risk of

 5     crimes.  The accused but know about -- must know that crimes are probably

 6     going to be committed.  In particular, if a person takes reasonable

 7     measures to ensure that his assistance will not be used to commit crimes,

 8     he will not know that crimes will probably be committed nor that his

 9     assistance will probably assist in any such crimes.  And such measures

10     may vary from case to case, but could, for example, include obtaining

11     guarantees that the help will not be used to commit crimes, obtaining

12     guarantees that the receiving forces will take all necessary measures to

13     prevent and punish crimes before help is provided, could also be

14     providing training on international humanitarian law before or as a

15     condition for providing assistance, it could be stopping or temporarily

16     ceasing the provision of assistance if crimes are permitted but not

17     punished, it could amount to asking for the return of material or

18     manpower provided if it is used to commit crimes, and the persons who

19     received the assistance failed to take reasonable and necessary measures

20     to prevent and punish crimes.  There are many steps that a provider of

21     assistance can take:  To, first of all, ensure that crimes are not being

22     committed, and taking those steps will make it very reasonable for that

23     person to believe that crimes are not being committed and certainly not

24     being committed with -- somehow with the assistance of the -- through the

25     means that are being provided by the assistance.  And therefore, there

Page 460

 1     are sufficient safe-guards to avoid unreasonable results.

 2             But moreover, and very importantly, such steps would reduce the

 3     prevalence of crimes and encourage adherence to international

 4     humanitarian law.  If such steps do not work and those receiving the aid

 5     still use it to commit crimes, then the persons who knowingly continued

 6     to provide assistance in these circumstances may be liable for aiding and

 7     abetting those crimes.  Equally, if a person knows that no means would

 8     ever be sufficient to prevent the commission of large-scale massive

 9     systematic crimes, they should refrain from providing the assistance or

10     run the risk of being held criminally liable as aiders and abettors.

11             The customary international law standard on aiding and abetting

12     promotes the respect for international humanitarian law; the Perisic

13     appeal judgement undermines it.

14             All of the above shows that there are cogent reasons to depart

15     from the Perisic appeals judgement.  It is wrong in customary

16     international law, it wrongly interprets the Appeals Chamber case law,

17     and very seriously it creates uncertainty and problems, and, maybe worse

18     of all, it undermines the adherence to international humanitarian law

19     contrary to the interests of international justice.

20             The Appeals Chamber should reiterate that specific direction is

21     not a distinct aiding and abetting requirement or that if it is involved

22     in the actus reus it is necessarily included within the element of

23     substantial effect.

24             Now, should the Appeals Chamber require further assistance on

25     cogent reasons, the Prosecution can prepare a supplemental written brief

Page 461

 1     on this issue.

 2             If there are no questions on this, I shall move on to the final

 3     part of my submission.

 4             JUDGE LIU:  [Microphone not activated]

 5             MR. MARCUSSEN:  Thank you.

 6             Your Honours, if the Appeals Chamber decides that there are no

 7     cogent reasons to depart from the Perisic appeal judgement, then the

 8     Appeals Chamber may have to consider:  One, whether the Trial Chamber

 9     should have entered explicit findings regarding the specific direction

10     element of the actus reus for aiding and abetting; and two, if it did not

11     have to make such findings, whether the Trial Chamber's findings

12     implicitly included this element.  And actually, I think Your Honours

13     would have to make those determinations because it was specifically

14     raised by my learned colleagues this morning.

15             Contrary to what my learned friends submitted this morning, the

16     Trial Chamber did not have to make explicit findings regarding specific

17     direction as an element of the actus reus of aiding and abetting in this

18     case.  This is because General Lazarevic is a proximate aider and abettor

19     rather than a remote one, under Perisic paragraph 39.

20             First, whereas General Perisic was remote in that he was an

21     officer in a foreign army outside the chain of command of those who

22     committed the crimes in Srebrenica and Sarajevo, General Lazarevic was

23     the corps commander of the VJ soldiers perpetrating the forcible

24     displacements in Kosovo.  He had the authority over all Pristina Corps

25     members and the power to plan VJ activities and operations in Kosovo,

Page 462

 1     Volume III, paragraph 905 [sic].  He is akin to Krstic, a commander who

 2     permitted troops and resources under his command to assist in crimes, who

 3     was recognised by the Perisic appeal judgement as a proximity aider and

 4     abettor, in footnote 100.

 5             Indeed, the Perisic Appeals Chamber placed great importance on

 6     the fact that Perisic had no de jure and de facto command over the VRS in

 7     Bosnia to establish Perisic's remoteness, paragraphs 42 and --

 8     paragraphs 42 and 46.

 9             Second, the Perisic appeal judgement, paragraph 38, held that

10     proximity is established when the accused is physically present during

11     the planning or commission of a crime.  Lazarevic was physically present

12     and significantly contributed to the planning and execution of the joint

13     operations which cleared whole villages of Albanian civilians.  The

14     period from January to March 1999 was devoted to planning of joint VJ-MUP

15     operations, Volume I, paragraph 1017.  Lazarevic worked closely with

16     Pavkovic on these plans and the resultant Joint Command Orders, Volume I,

17     paragraphs 1034 -- sorry, 1037 to 1038.  The campaign to forcibly expel

18     the Kosovo Albanian population was carried out through these joint

19     operations.

20             General Lazarevic also issued at least 16 Joint Command orders

21     between March and April 1999.  I will provide examples which show how

22     these orders, joint orders, were implemented -- and implemented the

23     common criminal plan to forcibly expel Kosovo Albanians.  As the

24     Trial Chamber found, several of those orders correspond to crime sites in

25     the indictment, Volume I, paragraphs 1122 and paragraph 1123.

Page 463

 1             Moreover, General Lazarevic was present on the ground "on the

 2     front line of the action" as he put it and quoted in Volume III,

 3     paragraph 924.  He regularly visited and encouraged troops before and

 4     after joint operations that he planned and commanded and which were

 5     implemented with excessive force, targeting whole villages of civilians

 6     and driving out the Kosovo Albanian residents.  He was with Pavkovic

 7     "most of the time," Volume III, paragraph 838.  He is akin to Brdjanin

 8     and Simic about -- be it civilian leaders in their region and their

 9     municipality respectively, whom the Perisic Appeals Chamber also

10     recognised as proximity aiders and abettors in footnote 100.

11             The Trial Chamber, therefore, did not have to make specific

12     findings regarding the specific direction element of the actus reus of

13     aiding and abetting under the Perisic appeal judgement

14     paragraph 37 [sic].

15             And in fact, given Lazarevic's proximity and intimate involvement

16     in the planning and execution of these joint operations, you can see that

17     the Trial Chamber's findings regarding General Lazarevic's contributions

18     implicitly included specific direction.  The Trial Chamber noted "the

19     political and military leadership of the FRY and Serbia ... treated the

20     Kosovo Albanian population in its entirety as enemies of the state,

21     despite the fact that the KLA formed only a very small part of that

22     population," Volume III, paragraph 91.  The joint VJ-MUP operations made

23     no distinction between the KLA and the Kosovo Albanian population.  Two

24     examples, the joint VJ-MUP operations in Orahovac and Reka valley

25     illustrate that Lazarevic's contributions were directed to operations

Page 464

 1     which were planned and executed to clear whole villages and areas of

 2     Kosovo Albanians.

 3             Orahovac is in the south-west of Kosovo.  One of the villages

 4     targeted in the Orahovac operation was Celine village.  In March 1999,

 5     Celine village consisted of around 250 homes.  It was situated not far

 6     from the Djakovica forward command post, Volume II, paragraphs 303, 333

 7     to 335.  It was explicitly mentioned and targeted by Lazarevic's

 8     Joint Command order dated the 23rd of March, 1999, Volume II,

 9     paragraph 296.

10             General Lazarevic ordered the 549th Motorised Brigade to deploy

11     at a line, and together with the MUP attack, break up, and destroy the

12     KLA in Celine and other villages.  General Lazarevic's order went down

13     the chain of command.  The 549th motorised Brigade the same day ordered

14     its units to cut off and destroy the KLA in the village of Celine,

15     paragraph 297 of Volume II.

16             There was, however, little or no KLA presence or threat in this

17     village, Volume II, paragraph 304.  And in reality these orders were

18     orders for the attack on the Kosovo Albanian population in Celine, as the

19     findings regarding the attack clearly shows.

20             From the early morning of the 25th of March, Celine village was

21     surrounded by VJ tanks, armoured vehicles, and armoured personnel

22     carriers.  Between 5.00 and 5.30 a.m., the VJ began shelling the village

23     and continued to do so on and off until about 9.00 p.m. at night.  A day

24     of shelling of 200 homes.  VJ soldiers and MUP forces entered the

25     village.  Their operations were co-ordinated.  The soldiers had hand-held

Page 465

 1     radios and they were given orders through these radios, Volume II,

 2     paragraphs 310 to 314.

 3             The VJ forces and MUP forces looted and torched the village, also

 4     setting fire to the mosque.  They set up manned points around the village

 5     and shots were fired during the night to scare the villagers, Volume II,

 6     paragraph 311.  The forces went house to house conducting searches and

 7     pulling out everyone they found.  Some of those found were murdered,

 8     including women and children, Volume II, paragraphs 315, 321, 329 to 335.

 9             A large group of civilians were found hiding in the woods by

10     policemen.  The men were separated from the women and children.

11     Policemen took their possessions and identification guards.  Their

12     identification cards were thrown into a pile and burned.  The groups were

13     made to walk through the village towards Prizren at gunpoint.  Later

14     these civilians were put on trucks, driven to the border, where they were

15     forced to walk to Albania, Volume II, paragraphs 323 to 325 and 334.

16             Following the operations, reports were sent up the chain of

17     command.  For example, Prosecution Exhibit P2019 which confirms that VJ

18     forces "blocked and cleansed" Celine, Volume II, paragraph 364 and also

19     paragraphs 301 and Volume III, paragraph 857.

20             The operation was planned, ordered, and was reported back as

21     implemented in accordance with those plans and orders.

22             Despite the large number of civilians killed in this joint

23     operation as set out in Volume II, paragraph 335, 381 and 382 and 433,

24     and the massive number of Albanians who fled in fear or were ordered

25     across the border which General Lazarevic knew, Volume III,

Page 466

 1     paragraph 849, no one was prosecuted as a result, Volume III,

 2     paragraph 864 to 869.  And the same soldiers were used again in future

 3     operations.  Inevitably the same pattern repeated over and over and over

 4     again.

 5             For example, units of the 349th [sic] Motorised Brigade one month

 6     later participated in the Reka Valley Operation during which the VJ and

 7     the MUP swept through the valley expelling all Albanians.  This is my

 8     second example.  Sorry, and I seem to have misspoken, it was units of the

 9     549th Motorised Brigade who participated in the operation again.

10             Both Witnesses Peraj and Kotur were VJ soldiers provided evidence

11     of meetings to organise and co-ordinate the operation to cleanse

12     Reka Valley.  Both spoke of receiving oral orders for the operation,

13     Volume II, paragraph 600 -- no, sorry, paragraph 169 and 173.  In

14     addition, Witnesses K90 and K73, both again VJ soldiers, also described

15     receiving oral orders to cleanse the Reka Valley by expelling

16     Kosovo Albanians, Volume II, paragraph 176 and 230.

17             And, Your Honours, this morning my learned friends addressed the

18     evidence of witness -- of both these witnesses, K90 and K73.  Contrary to

19     my learned friends' submissions, the issues that were raised in relation

20     to K90, namely, the allegation that he changed his testimony, was

21     specifically dealt with by the Trial Chamber.  The Trial Chamber found

22     that he tried to minimise his evidence and explain -- gave reasons why it

23     came to the conclusions that it did too -- that it did.  My learned

24     colleagues have not shown that those findings were unreasonable; it has

25     just invited Your Honours to accept its interpretation of the evidence.

Page 467

 1     And I will refer Your Honours to Volume II, paragraph 34 [sic] and

 2     paragraph 133 -- sorry, 53, where these issues -- where the issues

 3     relating to K90 are discussed.

 4             And contrary to the submissions made this morning, K73 did speak

 5     of orders to cleanse the -- cleanse areas of Kosovo Albanians, and the

 6     reasons for those findings are clearly set out in the judgement at

 7     Volume II, paragraph 176.

 8             Your Honours, during this operation, VJ and the MUP swept down

 9     the Reka Valley from north to south in two days, terrorising and driving

10     out all of the civilian population as they went.  And, Your Honours --

11     Your Honours, on your screen is now Prosecution Exhibit P326.  It was

12     used with several witnesses.  This is a one that was tendered through

13     Witness Nike Peraj.  As Your Honours can see, this was a joint operation.

14     It had the flanks -- on the flanks of the valley were VJ positions and

15     MUP positions.  The operation took place right in front of the VJ

16     Joint Command position -- joint -- sorry, forward command post.  There

17     was a MUP command post.  And groups, units, of VJ soldiers and MUP went

18     down through the valley in the course of two days.  And on the map you

19     can see the approximate line where the operation stopped on the

20     27th of April, 1999, and then continued on the 28th, forcing civilians in

21     front of it down through the valley.

22             On the first day, K73's unit "expelled hundreds of

23     Kosovo Albanians and set their homes on fire," Volume II, paragraph 229.

24     VJ and the MUP -- VJ and MUP forces surrounded villages, ordering women

25     to leave and go to Albania, and then shot the men and boys.  Their homes

Page 468

 1     were burnt down.  And at VJ and MUP check-points set up at the southern

 2     end of the valley, any remaining men were separated out and the women and

 3     children had their identification cards seized before being seized --

 4     excuse me, before being forced to go to Albania under threat of death,

 5     paragraph 230.

 6             And Your Honours can see, as I mentioned, the check-points, for

 7     example, that I mentioned circled on this map and the red lines as

 8     indicated, indicate two columns of refugees that are described in the --

 9     of Kosovo Albanians that are described in the evidence in the

10     [indiscernible].

11             These all-inclusive clearances took place despite the fact that

12     there was no significant KLA presence there, Volume II, paragraph 230.

13     Four VJ soldiers involved gave evidence that they were under orders to

14     expel the Kosovo Albanian civilian population from the valley, discussed

15     in Volume II at paragraphs 169, 173, 176, and 230.

16             Witness K33's [sic] testimony quoted at Volume II, paragraph

17     1172, confirmed that what his order required him to do in this joint

18     operation and what -- and that it was not to target the KLA.  And I once

19     again need to correct myself - I apologise, Your Honours - the witness is

20     Witness K73.

21             The instructions that K73 had received he set out as being:

22             "...  we expelled them all from the baby in the cradle to the

23     elderly people in wheelchairs."

24             General Lazarevic visited the 125th Motorised Brigade on the

25     29th of April, 1999, immediately after their involvement with the

Page 469

 1     Reka Valley operation.  Zivanovic reported to Lazarevic on the operation,

 2     Volume III, paragraph 842 and 856.  Lazarevic took no measures against

 3     the VJ forces involved in the comprehensive forcible expulsions in

 4     Reka Valley.  No one was prosecuted for these events, Volume III,

 5     paragraph 870.  And again, after the Reka Valley operation, joint

 6     operations continued unchanged and unhindered.  For example, the VJ-MUP

 7     joint action attack on the village of Dubrava in May 1999 that followed

 8     the same pattern.  The villagers fled in fear or were killed, including a

 9     female and a child, Volume II, paragraph 1141 and 1149.

10             The operations in Orahovac and Reka Valley are but two examples

11     which illustrate how, in fact, joint operations by the VJ and MUP were

12     designed to attack the Kosovo Albanian population.  Volume II is replete

13     with other examples covering 13 municipalities all over Kosovo.

14             General Lazarevic's substantial assistance, encouragement, and

15     moral support was directed at and related specifically to these joint

16     operations, which treated the whole Kosovo Albanian population as the

17     enemy.  When Lazarevic planned and executed these operations, when he

18     sent his troops and weapons to areas where there was little or no KLA

19     presence, when he inspected the troops in the field who had just carried

20     out forcible expulsions, when he failed to take measures specifically

21     against forcible displacements, paragraph 925 of Volume III, there was no

22     way he could have thought that he was assisting legitimate warfare.  He

23     knew his assistance was directed and substantially facilitated the

24     campaign of forcible expulsions.

25             For these reasons the Appeals Chamber should not accept

Page 470

 1     General Lazarevic's argument that he only contributed to the war efforts

 2     of his country.  Clearly, as the VJ commander in the field his

 3     contributions were significantly directed to assist in the commission of

 4     crimes that he was convicted of.  Such was Lazarevic's intimate and

 5     protracted involvement and proximity that there was a direct, close, and

 6     culpable link between his contributions and the crimes.

 7             Your Honours, the -- my learned colleagues this morning suggested

 8     that General Lazarevic was merely carrying out his duties.  I would note

 9     that in the Blagojevic appeal judgement at paragraph 800 -- 189, the

10     Appeals Chamber specifically held that when somebody knowingly

11     contributes to the commission of a crime, the fact that this is done

12     in -- pursuant to a duty does not alleviate that person of

13     responsibility.

14             I need, maybe, to correct one thing that I said this morning

15     about paragraph -- the submission by my learned colleague regarding

16     paragraph 906 in the judgement.  I may have said -- in Volume III.  I may

17     have said that there was a finding of intent in that paragraph.  That is

18     incorrect.  What it was is it said that General Lazarevic was aware of

19     acts of violence and expulsions.  And also, the assessment of K90's

20     evidence is found in Volume II at paragraph 74 and not 34 as I said.

21             With those clarifications and unless I may assist Your Honours

22     any further, this would conclude the Prosecution's response to

23     General Lazarevic's appeal and the questions put by Your Honours before

24     the hearing.  For further issues that I have not addressed today, I refer

25     Your Honours to the detailed responses in the Prosecution's response


Page 471

 1     brief to General Lazarevic's appeal.

 2             JUDGE LIU:  Thank you very much.

 3             Any response?

 4             MR. BAKRAC: [Interpretation] Yes, Your Honour, with your leave.

 5             My learned friend Mr. Marcussen was dealing with the

 6     jurisprudence of the Tribunal for a good part of his address and also the

 7     legal practice relating to a specific issue, the issue of specific

 8     direction and the requirement that it be part of the actus reus of the

 9     accused for aiding and abetting or for -- or part of the mens rea of the

10     accused.  Of course it is very difficult immediately after the address

11     when my learned friend Mr. Marcussen quoted and cited precedents, it's

12     difficult to reply on one's feet after hearing such arguments.  But

13     even -- despite that I'm still going to state my position on all of these

14     issues to a limited extent because of the requirement for me to provide

15     my reply immediately after the address by Mr. Marcussen.

16             It seems to me and perhaps I'm wrong, I apologise, or perhaps it

17     just sounds like that, that the practice of the

18     International Criminal Tribunal and customary law on the matter of

19     specific direction simply is a singular thing and the appeals judgement

20     in the Perisic case deviates from that.  If this is the position, I think

21     that this is what can be concluded from the address by Mr. Marcussen and

22     I cannot agree with that.  The judgement of the Appeals Chamber in the

23     Perisic case is not the only such judgement which treats this matter in

24     the way it does.  If you permit me just briefly, I am going to deal with

25     examples that my learned friend Mr. Marcussen did not mention.  On

Page 472

 1     several occasions the Appeals Chamber defined the actus reus for aiding

 2     and abetting as acts specifically directed towards the aiding,

 3     encouragement, or providing moral support to the principal perpetrators

 4     of a crime which have a significant effect on the execution of the crime.

 5     When I say this, I refer to the to the Tadic appeals judgement,

 6     paragraph 229; the Vasiljevic appeals judgement, paragraph 102; the

 7     Blagojevic appeals judgement, paragraph 127; the Kvocka appeals

 8     judgement, paragraph 89; the Blaskic appeals judgement, paragraph 45; the

 9     Rukundo appeals judgement paragraph 52 -- I apologise.

10             I'm now moving to an overview of the jurisprudence of the

11     Tribunal where there is a consistent approach by the Appeals Chambers on

12     this particular standard.  First of all, this standard for specific

13     direction was articulated for the first time in the Tadic appeals

14     judgement, but that concept, the concept of specific direction, continues

15     to be a part of the actus reus arguments for aiding and abetting, and it

16     can be found in other judgements as well.  Other than that, the

17     International Criminal Court -- I would also like to draw the attention

18     of the Appeals Chamber to the Rukundo judgement -- appeals judgement,

19     paragraph 52, which also deals with specific direction; then

20     Kalimanzira appeals judgement, paragraphs 74 and 76 and 86 -- 74 and 86;

21     Muguniya [phoen] - I apologise if I'm mispronouncing the names - this is

22     the appeals judgement, paragraph 79; Seromba, appeals judgement,

23     paragraph 47; Nahimana appeals judgement, paragraph 482; and the

24     Ntakirutimana appeals judgement, paragraph 530.  Again, I apologise if I

25     mispronounce the names.

Page 473

 1             So there are numerous judgements by Appeals Chambers which deal

 2     with the issue of specific direction and which treat this particular

 3     area.

 4             My learned friend, Mr. Marcussen, tried to simplify one of the

 5     requisite conditions with regard to the remoteness of the perpetrator,

 6     suggesting that any perpetrator who is remote from the site of the

 7     commission of a crime would be exculpated from responsibility.  I believe

 8     that this is quite a simplification of that position.  With all due

 9     respect to Mr. Marcussen, remoteness is one of the elements that has to

10     be established.  It's quite clear that somebody who is remote from the

11     place of commission of a crime can fulfil the requisite criteria for

12     actus reus and for mens rea for the crime of aiding and abetting.

13             However, it is necessary to establish all the other elements of

14     actus reus and mens rea.  Simply, the application of this principle would

15     not have any consequences in terms of the perpetrators who just by the

16     nature of the fact that they are remote from the scene of the crime would

17     be exculpated on the basis of that.  My learned friend Mr. Marcussen even

18     said that -- I apologise, Your Honours.  As for the jurisprudence

19     regarding the principle of specific direction, with all due respect, I

20     believe that my learned friend Mr. Marcussen did not articulate adequate

21     arguments in view of the fact that this problem has been considered to a

22     large extent by international tribunals and that the concept is known in

23     international customary and humanitarian law and it would need to be

24     applied in situations of crimes which are specifically the subject of

25     review by this Appeals Chamber.

Page 474

 1             Furthermore, my colleague Mr. Marcussen also referred to the fact

 2     that in our oral submissions we referred to the question of the standard

 3     of the objective or goal of mens rea and referring to the

 4     Rome Statute Article 25(3)(c).  The Defence believes that it did not

 5     overstep the grounds of appeal because one of the grounds of appeal is

 6     the erroneous finding by the Trial Chamber of the mens rea of the accused

 7     Lazarevic in relation to aiding and abetting of the crime of deportation

 8     and forcible displacement.  The standard of the goal or purpose was

 9     applied also in some other judgements, for example, of the transitional

10     administration of the United Nations in the year 2000 which constitutes a

11     new practice and I think that it was completely justified as well, also

12     with respect to the Defence referring to this element of the mens rea and

13     that this is also in the interest of justice and does not exceed the

14     bounds of what we refer to as the ground of appeal of the erroneous

15     findings of the Trial Chamber in relation to the mens rea for this type

16     of criminal act which we refer to in our appeal brief.

17             Today at the very beginning of his address, my learned friend

18     Mr. Marcussen said that my colleague Mr. Cepic when -- actually, he

19     responded to our grounds of appeal.  He said that we cited evidence which

20     is not linked to the relevant parts and he cited the example of Srbica,

21     giving dates from April and March 1999.  And that for that reason we made

22     a mistake as to the relevant time-period of these events.  My colleague

23     Mr. Cepic presented a clear contradiction precisely for the relevant

24     period of the indictment when we're talking about Volume III,

25     paragraph 905 of the judgement, citing an example for the

Page 475

 1     28th of March, 1999, and the area of Srbica.  So we hold that this

 2     argument by the Prosecutor does not stand.  All the other presented

 3     evidence refer to the relevant period.  Other than that, the Prosecution

 4     did not provide any other evidence to substantiate his allegations

 5     regarding the disciplinary measures and acts taken to shed light on the

 6     crimes.  Here we presented numerous direct evidence before you which

 7     would be difficult to find in any other case before this Tribunal,

 8     indicating that General Lazarevic did everything in his power so that all

 9     alleged perpetrated crimes by members of the VJ would be thoroughly

10     investigated and processed.  The responsibility, as we mentioned, for

11     further processing lay in the hands of the judicial organs so that all of

12     this would lead to the reasonable conclusion that General Lazarevic in

13     everything acted in accordance with the law and the constitution.

14             When one takes measures to process the perpetrators of a criminal

15     act and when this processing is supposed to be undertaken by the judicial

16     organs, then the assertion by my friend Mr. Marcussen is superfluous that

17     the measures provided for under customary law were not applied by

18     General Lazarevic.

19             Your Honours, my colleague Mr. Marcussen stated also that

20     General Lazarevic was responsible also because he knew about the crimes

21     which were committed in 1998.  He knew about the mass displacements and

22     forcible displacements in 1998, knew that members of the

23     Army of Yugoslavia which he allegedly used later in 1999 frequently

24     committed crimes which had, as a consequence, a significant or

25     substantial displacement of the population.  These assertions absolutely

Page 476

 1     do not stand.  I am just going to draw your attention to a number of

 2     Prosecution witnesses, foreign observers, whose mission it was in 1998

 3     specifically to observe and monitor the situation in the field.  So

 4     Prosecution witness Mr. Ciaglinski on page 6910 of the transcript said

 5     that the actions of the VJ in the border belt area were carried out

 6     correctly.  I remind that the border belt area is the area where

 7     General Lazarevic was in 1998 as the Chief of Staff at the time of the

 8     Pristina Corps.

 9             Witness Ciaglinski said that he had the opportunity to read

10     numerous reports drafted by members of his mission, and these reports did

11     not contain any remarks regarding the conduct of the army.  And you can

12     find this on transcript page 6894 to 6895.  In January 1999

13     Witness Ciaglinski testified that he had the opportunity to speak with

14     local Albanians in the Junik border belt village, who personally told him

15     that they did not have any problems with members of the army.  And you

16     can find this on transcript page 6896.  Witness Ciaglinski concludes at

17     the end that -- going back a little bit:

18             "When I talk about the VJ certainly during most of my time in

19     Kosovo the VJ behaved correctly.  It was not using excessive force until

20     the last few weeks of March 1999."

21             This is on transcript page 6929.

22             Prosecution Witness Maisonneuve said that his experience was that

23     the Army of Yugoslavia acted very professionally.

24             Witness Shaun Byrnes, a member of the American mission, when

25     asked about excessive use of force, bombing, and the torching of houses,

Page 477

 1     some cases in 1998, said that his clear impression was and that he could

 2     state that quite clearly was that the Army of Yugoslavia was not involved

 3     in such activity.  He also says concerning the time I spent in Kosovo and

 4     as far as 1998 is concerned, that is August and all of September, he

 5     personally never saw the Army of Yugoslavia being involved in that kind

 6     of activity, nor did he receive any such information from his

 7     subordinates; 12150 is the transcript page reference.

 8             There is also numerous evidence that indicates that there is no

 9     reliable evidence to prove beyond reasonable doubt that General Lazarevic

10     in 1998 as Chief of Staff of the Pristina Corps who was at the forward

11     command post near the border with Albania had any knowledge about

12     possible individual cases of excessive use of force in 1998.  There is no

13     evidence that General Lazarevic knew or had to know about

14     Resolution 1299, that in October 1998 cautioned that FRY forces were

15     using force.  What may have been relevant for General Lazarevic was,

16     first of all, the assessment of General Perisic.  And the Prosecution

17     says that this is a renegade general who opposed Milosevic.  3D757 is the

18     document where he pointed out on the 29th of September, 1998, that in

19     actions in Kosovo the Army of Yugoslavia was carrying out its obligations

20     in fighting against terrorism in a professional manner.  He added that

21     the Army of Yugoslavia, the Army of Yugoslavia through the Pristina

22     Corps, took all necessary measures, all necessary measures, to protect

23     the country.

24             Your Honours, when my learned friend Mr. Marcussen said that

25     General Lazarevic in 1999 used the army, or rather, the troops that did

Page 478

 1     what I read out to you in 1998 and what the foreign observers assessed as

 2     well, he made a major mistake.  In our brief we proffered to the Chamber

 3     ample evidence showing that in 1999 when the aggression was supposed to

 4     start, the aggression by NATO forces against the FRY, the General Staff

 5     of the Army of Yugoslavia reached a decision on manning the units of the

 6     Pristina Corps.  I wish to note that a Prosecution witness,

 7     Colonel Zyrapi, who was the Chief of Staff of the KLA, said himself that

 8     in the beginning of the NATO bombing the KLA had a personnel level that

 9     was twice as high as the Pristina Corps.  The Pristina Corps had 10.000

10     members at the time.  As their personnel levels were raised by the

11     General Staff of the Army of Yugoslavia, it became 50.000.  So this fact

12     alone cannot support the position of the Prosecution that

13     General Lazarevic used the forces that he knew committed crimes in 1998

14     in 1999.  First of all, he could not have done such a thing in terms of

15     the position he held; and secondly, in 1999 when the NATO campaign

16     started the General Staff of the Army of Yugoslavia - and we indicated

17     that in detail in our appeal - increased personnel levels in the

18     Pristina Corps many-fold at that.

19             My learned friend Mr. Marcussen, my learned friend Mr. Marcussen,

20     also at the end of his remarks mentioned an incident in the village of

21     Celine, and he referred to the alleged participation of the

22     Army of Yugoslavia in the commission of crimes.  In our appeal,

23     paragraph 252, we analyse in detail the evidence related to this

24     incident.  I would briefly like to draw the attention of the

25     Appeals Chamber that Witness Bislim Zyrapi, Chief of Staff of the KLA,

Page 479

 1     confirmed that the thrust of the Serb forces' attack was against the KLA

 2     and in the village of Pirane which is the neighbouring village of Celine.

 3     I quote:

 4             "From Pirane to the Djakovica, the Djakovica cross-roads and

 5     Bela Crkva, the attack started in the early morning hours of the

 6     25th of March, 1999, and there was combat activity.  This is what I wish

 7     to point out.  Before the artillery attack started" -- correction.

 8     "After the artillery attack started, we wanted to move the population

 9     from that area for reasons of safety.  The forces of the KLA together

10     with the population started withdrawing."

11             THE INTERPRETER:  Interpreter's note:  We do not have the

12     original document.

13             MR. BAKRAC: [Interpretation] So the Chief of Staff of the KLA as

14     regards this incident - and my learned friend says that it was aimed only

15     against the civilian population - claims that it was KLA forces that were

16     there and that they were moving along with the civilian population and

17     were mixed among the civilian population.  I hope that I have a bit more

18     time, five minutes.

19             The Defence --

20             JUDGE LIU:  Well, I think you have to finish your reply in five

21     minutes.  So we adjourn at five minutes to 4.00.

22             MR. BAKRAC: [Interpretation] Thank you.  Thank you, Your Honour.

23     I was afraid that I had stolen a minute or two by accident, that is.

24             So the very last argument that was presented by my learned friend

25     Mr. Marcussen was the operation in the river valley and with regard to

Page 480

 1     that the Defence provides a detailed analysis of everything that

 2     happened.  Within the time that I still have left, I would just like to

 3     refer to what my colleague Mr. Marcussen pointed out.  He says that after

 4     this operation General Lazarevic went to the 125th Motorised Brigade that

 5     was partly only under blockade in terms of this operation and he says

 6     that Commander Zivanovic reported to him but General Lazarevic did not

 7     take any steps to punish perpetrators of crimes.

 8             In the case file you will find the report of Commander Zivanovic

 9     and you will see that in the report there is no indication whatsoever of

10     the 125th Motorised Brigade participating in the crime or that any crime

11     had happened.  So General Lazarevic did not have any information from his

12     superior officer that in the operation of blockade in which the

13     125th Brigade participated that any crimes had been committed, that is,

14     and therefore he could not have taken any kind of action.

15             Finally, my colleague Mr. Marcussen says that General Lazarevic

16     closely co-operated in elaborating plans with Commander Pavkovic.  Can

17     you imagine a single army anywhere in the world where the command of the

18     Pristina Corps -- rather, any corps commander would not have a

19     co-operation with the army commander, where the army commander would not

20     co-operate with the Chief of General Staff.  That is quite logical.  The

21     question is just which part of that co-operation would be illegal,

22     anti-constitutional, and which part of that co-operation would be aimed

23     against civilian persons?  That is an answer that the trial judgement

24     could not respond to.  That is something that the Prosecution could not

25     indicate to us in their reply.  Is it sufficient to say merely that

Page 481

 1     General Lazarevic closely co-operated with General Pavkovic?  Well, of

 2     course.  General Pavkovic was commander of the 3rd Army and

 3     General Lazarevic was his subordinate in the chain of command.  He was

 4     the corps commander there.  Military hierarchy, per se, is it a crime?

 5     Is waging war, per se, a crime?  I think that the Prosecution in their

 6     reply to our appeal did not assist you in finding arguments in the trial

 7     judgement that would indicate that the only reasonable conclusion would

 8     be, if looking at all the facts together, that General Lazarevic

 9     supported and aided and abetted in the crimes of forcible transfer.

10             Thank you, Your Honours.

11             JUDGE LIU:  Thank you.  Thank you very much, Mr. Bakrac.

12             Yes --

13             MR. CEPIC:  I'm sorry, Your Honour.  Just one correction in

14     transcript.  Page 24 [sic], line 15, instead of word "superior" it has to

15     be "subordinated."

16             JUDGE LIU:  Thank you.

17             MR. CEPIC:  Thank you, Your Honour.

18             JUDGE LIU:  Thank you very much.

19             Well, I think that's all for today, and that concludes today's

20     hearing.  We adjourn these proceedings until tomorrow morning at

21     9.30 a.m.

22                           --- Whereupon the hearing adjourned at 3.55 p.m.,

23                           to be reconvened on Thursday, the 14th day of

24                           March, 2013, at 9.30 a.m.