1 Thursday, 14 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 Madam Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. This is case
9 IT-05-87-A, the Prosecutor versus Nikola Sainovic, Nebojsa Pavkovic,
10 Vladimir Lazarevic, and Sreten Lukic.
11 JUDGE LIU: Thank you very much.
12 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. May I
14 now have the appearances of the parties. The Prosecution first.
15 MR. KREMER: Good morning, Mr. President, Your Honours. The
16 Prosecution counsel this morning are myself, joined by Daniela Kravetz
17 and Mr. Kyle Wood, assisting us again is Mr. Colin Nawrot, our
18 case manager. Thank you.
19 JUDGE LIU: Thank you very much.
20 And now the Defence counsel, please.
21 MR. FILA: [Interpretation] Good morning, Mr. President. Good
22 morning, Your Honours. My name is Toma Fila, and together with
23 Mr. Petrovic I represent the Defence of Nikola Sainovic. Thank you.
24 JUDGE LIU: Thank you.
25 MR. ACKERMAN: Good morning, Your Honours. I'm John Ackerman and
1 along with Aleksander Aleksic we represent General Pavkovic.
2 JUDGE LIU: Thank you.
3 MR. BAKRAC: [Interpretation] Good morning, Your Honours. I am
4 Mihajlo Bakrac. For the Defence of General Lazarevic I am here with my
5 colleague, Mr. Cepic, and our intern, Mr. Milan Petrovic.
6 JUDGE LIU: Thank you.
7 MR. LUKIC: Good morning, Your Honours. Branko Lukic and
8 Dan Ivetic on behalf of Mr. Lukic.
9 JUDGE LIU: Thank you very much. Today we will hear the
10 submissions from the counsel for Mr. Lukic. Yes.
11 MR. LUKIC: Good morning, honoured members of panel. My name is
12 again Branko Lukic with counsel for Mr. Sreten Lukic. By way of
13 introduction I want to let you know that we will be devoting time to
14 focus our presentation to the five questions that Your Honours posed to
15 us, and we will incorporate them into discussions about our appeal where
16 appropriate. I wish to advise that we will be dealing with all five
17 questions. First of all, I want to point out this judgement convicted
18 Lukic and gave him a harsh sentence of 22 years which is astounding when
19 the same judgement clears him of responsibility for many parts of the
20 Prosecution case against him.
21 In book III, paragraph 85, he is shown not to be specially
22 promoted as Milosevic's inner circle.
23 In book III, paragraph 1072, he is shown not to have been
24 involved in violations of the October Accords.
25 In book III, 1015, it is shown that he is not in charge of the
1 work of the RDB, state security part of MUP, even though the main
2 document, P1505, cited by the Chamber and relied upon throughout the
3 judgement lists RDB staff as being subordinated to him.
4 In book III, 1075, it is shown that Lukic did not have authority
5 over border police stations.
6 In book III, 1051, it is shown that Lukic did not replace
7 Obrad Stevanovic or Vlastimir Djordjevic or any of the existing police
9 In book III, 1113, it is shown that Lukic was not involved in the
10 clandestine attempt to transport and hide corpses from Kosovo.
11 Book III, 1021, it is confirmed that Lukic did not participate in
12 the drafting of the global plan for the suppression of terrorism.
13 In book III, 1049, it is concluded that Lukic could not commence
14 or proceed with disciplinary actions against MUP members.
15 In book III, 1122, it is shown that there were no volunteers
16 operating within the MUP.
17 In addition to these factors which the Trial Chamber here found,
18 we wish to direct your attention to the facts that there were three main
19 phases in 1998 and 1999 that were different from each other. The first
20 phase was the one of anti-terrorist actions in 1998. During that period,
21 both head of the public security and Deputy Minister Djordjevic as well
22 as assistant minister and PJP commander Obrad Stevanovic were in Kosovo
23 the entire time. After that is the phase of the signed peace accords in
24 1998 and 1999. With the NATO bombings the third phase begins, in which
25 again the factual and legal framework changed. The Prosecution and the
1 judgement do not recognise these different phases which then leads to
2 improper legal conclusions. Everyone with logic would know that the war
3 brings a new set of circumstances and laws into play.
4 Further, during this period assistant minister Obrad Stevanovic,
5 the PJP commander, came to Kosovo immediately before the NATO bombing
6 with PJP units, and stayed there for the duration, signing the
7 Kumanovo Agreement and was among the last policemen to leave Kosovo upon
8 the withdrawal.
9 Now I wish to address the first question you posed before turning
10 the podium over to my co-counsel, Mr. Ivetic. The question was whether
11 there would be any effect on Lukic's appeal regarding his convictions
12 pursuant to JCE III if the Appeals Chamber were to accept the
13 Prosecution's argument that the Trial Chamber applied an incorrect
14 mens rea standard to JCE III liability.
15 Having in mind that this question has been addressed already by
16 all those that have gone before us, we will be brief. We do not believe
17 that the resolution of the Prosecution appeal as to the mens rea standard
18 for JCE III affects our appeal. We believe our client was wrongly
19 convicted under either standard and we believe the factual scenario under
20 the evidence supports an acquittal under both standards.
21 We submit that upon a review of our submissions hopefully
22 Your Honours will see that the judgement is full of errors and cannot
23 stand on its own. It falls apart with any degree of scrutiny applied.
24 Such a judgement is unsafe and we believe your intervention is required
25 to prevent a serious miscarriage of justice.
1 And now I give the floor to my co-counsel.
2 MR. IVETIC: Good morning, Your Honours. For the record, I am
3 Dan Ivetic.
4 Your Honours have posed a question about the evidence, if any,
5 relating to Sreten Lukic's involvement in the disarming of the
6 Kosovo Albanian population. In this regard, it should be noted that in
7 book III dealing with the individual responsibility of Mr. Lukic, the
8 Trial Chamber fails to analyse the evidence as to this disarming.
9 Rather, only in book III, paragraph 666, dealing with another appellant,
10 the Trial Chamber claims that the disarming process was in furtherance of
11 the aims of the JCE. Further, at paragraph 668, the trial judgement
12 merely states that:
13 "The MUP undertook the task of disarming Kosovo Albanians in the
14 interior of the province, Pavkovic ordered that the Pristina Corps carry
15 this out in the border belt."
16 There is no citation to the evidence or any discussion of the
17 evidence on which this assertion as to the MUP is based. Apart from
18 P1468, notes of the meeting where it is suggested that the MUP should
19 undertake this task and Lukic's response is recorded in English as mostly
20 illegible. Surely this is not evidence to sustain a conviction. There
21 is no inference that the disarming suggested at this meeting was ever
22 undertaken or that it involved Lukic.
23 Further, the B/C/S original confirms that Lukic's response dealt
24 solely with voluntary surrender of arms.
25 Despite not discussing any evidence as to Lukic, in
1 paragraph 1121 of book III, the Chamber concludes:
2 "In 1998 Lukic was actively involved in ... the disarming of the
3 Kosovo Albanian population in villages and towns in the province."
4 But again, the Chamber does not cite or discuss any evidence. A
5 look at the evidence, Your Honours, shows important distinctions must be
7 As a starting point, we would ask that the Chamber focus on what
8 type of disarming is at issue. Long before the Kosovo conflict and
9 certainly at least since 1992, there existed in Serbia, including the
10 province of Kosovo, a Law on Weapons and Ammunition, Article 33 of which
11 prohibited civilians from possessing illegal types of weapons and which
12 proscribed penalties for such possession. This is in evidence at P1016,
13 page 119.
14 This law applied uniformly to the entirety of Serbia and cannot
15 be said to be discriminatory in nature. Lukic cannot be said to have had
16 any role in the promulgation of this law, active or otherwise.
17 Your Honours, the law is reasonable and it makes sense. I dare say that
18 most countries have a similar law and most of them task the police with
19 enforcing it.
20 As to this specific law, the minister of internal affairs set
21 forth how this law was to be enforced and implemented, not Sreten Lukic.
22 Indeed, the evidence shows that in 1996, long before the indictment
23 period, the minister gave an instruction on the work of internal organs
24 within the public security sector. And this is P1239. Section II of the
25 same at point 17 lists item 2: Prevention and detection of abuses of
1 weapons, the detection and seizure of arms held without permits.
2 Also in evidence we see that the SUPs, or secretariats of the
3 interior, across the whole of Serbia created plans for their functioning
4 every year, including tasks aimed at enforcing this law, among others.
5 An example of one such plan is P1074. As is clear from this,
6 Sreten Lukic had no role in either enacting the law, promulgating
7 instructions on its enforcement, nor in planning how the SUPs were to
8 police the law.
9 Now, if we turn to the time-period of 1998, we will see at that
10 time the evidence shows that as part of the effort to reduce tensions an
11 amnesty had been declared by the government organs of both Serbia and the
12 provincial organs of Kosovo to call upon and allow citizens who had been
13 forced to take up illegal arms by the KLA to voluntarily surrender those
14 illegal arms without suffering the legal consequences that otherwise
15 would apply under the law. The judgement only links this to the
16 testimony of Veljko Odalovic in paragraph 70 of book III, but the
17 evidence, namely P908, Article 5, item 3, demonstrates that this was
18 decreed by the National Assembly of Serbia in the last quarter of 1998
19 for everyone.
20 Again, there is no role of Lukic in promulgating this amnesty.
21 Now, the judgement has focused on reports that allegedly do not
22 mention that the weapons being collected by the MUP were illegal weapons
23 under this programme, at book III, paragraph 70. A review of the
24 evidence demonstrates that P1198 and P1203 are the only such reports, and
25 both documents in pages 4 and 5 respectively talk of the MUP involvement
1 in taking custody only of weapons voluntarily surrendered by citizens.
2 It is a reasonable conclusion under the facts that this was part of the
3 amnesty and the law which the Trial Chamber does not exclude.
4 Now, it stands to reason that police organs would be involved in
5 securing custody of and documenting such illegal weapons that were
6 voluntarily surrendered by citizens. This is a normal task in any
7 country. Looking at what role Lukic played in all of this, we see that
8 he is only reporting the statistics of numbers and locations of such
9 weapons that were surrendered. This can be seen from P1468, where we see
10 the direct references to weapons taken into custody by the MUP after they
11 were voluntarily surrendered by civilians at entries for 8 August 1998,
12 26 August 1998, 6 September 1998, 7 September 1998, 10 September 1998,
13 12 September 1998, 13 September 1998, and 14 September 1998. All these
14 entries are merely Lukic reporting statistics of instances where a couple
15 of persons or groups voluntarily surrendered weapons of a few in number,
16 up to 200 in number. Again, Lukic is neither promulgating the tasks nor
17 effectuating the surrender of illegal arms, but is merely reporting the
18 statistics as to persons who have voluntarily surrendered their arms to
19 the police. Further, that these arms are illegal in nature can be seen
20 from the fact that they include even Armburst anti-tank launchers. Thus,
21 the Trial Chamber's earlier finding that these voluntary collections were
22 not in reference to illegal arms is in error.
23 From such a limited involvement in a completely legal enterprise,
24 Lukic cannot be said to have the necessary mens rea to be assisting in
25 any criminal enterprise. In this regard, not only was the voluntary
1 surrender of arms obligated by the law, it was supported by international
2 peace initiatives.
3 Specifically, UN Security Council Resolution 1160, dated
4 31 March 1998 and in evidence as P455, identified the KLA as a terrorist
5 organisation and prohibited the procurement of weapons by either
6 individuals or other groups in Kosovo in order to stem terrorist
7 activities. This initiative cannot be said to be discriminatory.
8 Further, it is dated two months before Lukic even came to Kosovo.
9 As is evidenced by P1468 at page 43, Shaun Byrnes, the head of
10 the US KDOM mission, was involved in this legal process, keeping track of
11 the weapons and villages involved, asking for such statistics and
12 information from Lukic and being provided the same. Thus, the
13 highest-ranking member of the international community in Kosovo was fully
14 apprised of and involved in the reporting by Lukic of the voluntary
15 surrender of weapons. The voluntary surrender of arms was in the
16 interest of all persons and parties interested in pursuing peace in the
17 region. This is the only participation of Lukic that can be inferred
18 from the evidence. Given the involvement of the international community
19 in these efforts and the oversight of Mr. Byrnes in Lukic's reporting, it
20 is illogical and simply unsupportable under any reading of the evidence
21 to conclude that Lukic had knowledge of any criminal enterprise behind
22 these actions.
23 From this evidence it is inconceivable to conclude that Lukic was
24 engaged in any "disarming" of the Kosovo Albanian population with the
25 intent to further the criminal aims of any criminal enterprise.
1 In reaching such conclusions unsupported by the evidence, the
2 Trial Chamber erred; and we therefore ask the assistance of this Chamber
3 to correct those errors and render a just result. Surely we do not want
4 to send a message to the world that a policeman reporting statistics of
5 voluntary illegal weapons surrendered that was proscribed by domestic
6 law, supported by the UN Security Council and by international diplomats,
7 should be guilty of a crime for the same. Otherwise, we would have the
8 absurd result that the citizen voluntarily surrendering arms is also
9 guilty of the JCE, as are the members of the Security Council calling for
10 a conflicted area to turn over illegally held weapons.
11 At this time, we take the opportunity to address a related topic,
12 namely, the arming of the non-Albanian population. In the judgement the
13 Chamber always links this activity with the process of disarming which we
14 have just discussed; that can be seen in book III, paragraphs 49, 72, 666
15 through 669, and at several other places. But they are not the same.
16 Whereas the collection of voluntarily surrendered weapons dealt
17 with illegal weapons, the process of arming did not deal with illegal
18 weapons but rather was a process that was legal in nature and involved
19 the legitimate distribution of arms to reserve defence formations of the
20 state that were being activated in the light of an impending war.
21 The judgement itself concludes at book III, paragraph 56, that it
22 was unable to conclude whether such arming was illegal per se, but
23 considers that the primary issue is whether it was done upon ethnic
24 lines. Again, any involvement in a legal activity in compliance with the
25 existing laws surely cannot be used as the sole basis to conclude that
1 one had criminal intent and knew of or supported a criminal enterprise
2 behind these legal activities. Further, the judgement's focus on the
3 ethnic lines is curious given that the Chamber was shown and concluded
4 that Kosovo Albanian citizens rejected participating in the work of
5 official state organs. We can see that from book III, paragraphs 225,
6 226, and 297. And based on the evidence the Chamber could see that any
7 perceived co-operation with the state authorities by Kosovo Albanians was
8 denounced as collaboration by the KLA and subjected such persons to
9 reprisals by this criminal group including murders. And the evidence of
10 that is discussed at paragraphs 537 through 543 of our appeal.
11 With such a factual background, any attempted distribution of
12 arms to any ethnic Albanian Yugoslav reservists would have been devoid of
13 logic. This is an alternative meaning that the Trial Chamber ignored and
14 did so in error.
15 Although the judgement repeatedly talks of a secret arming
16 process - that can be seen in book III, paragraphs 52, 64, 72, 1121 -
17 there is no evidence that Lukic participated in any such secret process.
18 Indeed, the first and only time in the judgement where the moniker secret
19 is applied to Lukic's involvement is at book III, paragraph 1121, when it
20 is making conclusions as to his criminal responsibility. The previous
21 paragraphs, 1060, 1067, 1071, talking about the evidence do not relate to
22 any secret arming of civilians but rather the arming of reserve police
23 formations, civil protection units and army reservists in accord with the
24 laws of the state. The arming of defence formations must be understood
25 under the wider context of events at the time. The KLA was increasing
1 the intensity of terrorist attacks at the time and it was becoming a
2 possibility that NATO would attack Yugoslavia, making activation of the
3 reserve defence formations logical and legal, without any connotation of
4 any criminal enterprise.
5 The Chamber failed to consider the evidence that the
6 Supreme Defence Council issued an order 21 May 1998 for reservists to be
7 armed - that's P1259 - and that Lukic had no role in the bringing of this
8 decision which was brought by the highest organ of the state and which he
9 was duty-bound to implement once Minister Stojiljkovic issued an
10 instruction to engage the reserve force of the police in June 1998. And
11 we see that from the testimony of Cvetic at T.8169. Such actions were in
12 accord with the Law of Defence, which is P985, and the Law on
13 Internal Affairs, which is P1737, Article 28, such that Lukic's
14 involvement in this public process could not be termed as either illegal
15 or nefarious. Thus, the Trial Chamber erred in finding that the only
16 reasonable inference from the evidence was that Lukic knew of a criminal
17 intent behind the arming of reservists and that he shared the same.
18 Now I will address the third question posed by the Chamber to us
19 which asked if the actus reus and mens rea for a JCE member can be
20 fulfilled prior to the existence of the common purpose of the JCE. In
21 short, Your Honours, our answer is no. The jurisprudence of the Tribunal
22 is clear when it continuously affirms that the common purpose of a JCE
23 does not need to be previously formulated but can materialise
24 extemporaneously. We see that from the Furundzija appeal judgement,
25 paragraph 119 --
1 THE INTERPRETER: Could counsel kindly slow down, please.
2 MR. IVETIC: However, the logical caveat of this finding is that
3 the materialisation of the common purpose, i.e., its revelation or
4 surface to the public is not the same thing as its prior existence which
5 remains a precondition to the existence of a JCE I.
6 A person accused of participating in a JCE category I must act in
7 the implementation of a common purpose through acts directed to the
8 furthering of the same. We see that from the Kvocka appeal judgement,
9 paragraph 187, and the Vasiljevic appeal judgement, paragraph 102.
10 The Defence cannot accept that both actus reus and mens rea of a
11 JCE I could be fulfilled prior to the existence of the common purpose
12 because that would amount to accepting that a JCE I extends abusively to
13 any person who acted without any knowledge and intention to further
14 something that simply did not exist at the time that he acted.
15 If the Prosecution fails to provide evidence that can only be
16 interpreted by the Chamber as proving the existence of a common purpose
17 for a JCE, the Trial Chamber must not interpret other portions of
18 evidence for the purposes of constructing the existence of a criminal
19 purpose, since this would result in the Chamber erring in the
20 determination of facts unduly affecting the accused.
21 The Defence draws the attention of the Chamber to the findings of
22 the Appeals Chamber in the Gotovina appeals judgement when determining
23 that the Trial Chamber erred when finding the existence of a JCE I
24 through the interpretation of evidence regarding the planning phase of an
25 attack in light of subsequent events of the attack and its
1 characterisation by that Chamber as being unlawful in nature. This is
2 paragraph 93. In that case, the Appeals Chamber addressed the error of
3 the Trial Chamber and said considered outside this erroneous retroactive
4 context, it was not reasonable to find that the only possible
5 interpretation of the Brioni transcript involved a JCE to forcibly deport
6 Serb civilians. The Appeals Chamber highlighted many legitimate reasons
7 civilians may leave a combat zone, including a lawful consensus in
8 helping civilians leave an area of conflict for casualty reductions and
9 legitimate military advantage and lawful combat operations. The error in
10 Gotovina was remedied by acquittal. It is respectfully submitted a
11 similar analysis is required here.
12 Moving along to the fourth question that Your Honours posed, you
13 asked under what circumstances the mens rea under JCE I for deportation
14 and forcible transfers may be inferred from the accused's knowledge of
15 crimes committed in 1998, including crimes other than deportation and
16 forcible transfers.
17 Our brief answer is that the mens rea cannot be inferred from
18 knowledge of other crimes in 1998 that are not the same as those in 1999
19 for which the appellant is convicted. First I will address our legal
20 submission and then apply the relevant facts from the evidence to
21 demonstrate the error of such an approach, at least towards Mr. Lukic.
22 The jurisprudence of the Tribunal is clear on the fact that
23 members of the JCE I must share the same criminal intent - we can see
24 that from the Krnojelac appeal judgement, paragraph 84; the Vasiljevic
25 appeal judgement, paragraph 101 - and that the common plan was executed
1 with the intent to commit a particular crime. We can see that from the
2 Stakic appeals judgement, paragraph 65; the Vasiljevic Appeals Chamber
3 judgement, paragraph 101, among others.
4 In this sense the Defence believes that mere knowledge of
5 previous crimes is not sufficient to infer the mens rea for JCE I, since
6 this knowledge of forced transfer and deportations has not been proven to
7 be the only reasonable conclusion for establishing criminal intent to
8 pursue a common criminal goal.
9 No weight was given to the fact that as a MUP officer, the
10 allegations of potential crimes being committed by known and unknown
11 perpetrators were part of Lukic's function as a policeman and only
12 require his attention if other organs do not seem to be investigating
13 them under the law. The mere knowledge of unconfirmed crimes does not
14 necessarily lead to the conclusion that Lukic knew of the existence of a
15 criminal common purpose behind those crimes, that their commission
16 intended to further a criminal common purpose, or that he willingly
17 decided to join the same, sharing such a goal in the future.
18 Knowledge of other types of crimes that have no apparent
19 connection to the alleged Serb plan to control Kosovo through the
20 forcible removal of the Albanian population, such as murder and sexual
21 assaults, are commonly investigated as normal crimes by police personnel
22 around the world and do not show intent to pursue either a different
23 crime, like forcible removal, nor take part in furthering a criminal
24 policy of control. This is especially true where the knowledge of the
25 accused is accompanied with assurances that the relevant authorities are
1 conducting investigations to preserve evidence, locate and apprehend
2 perpetrators for prosecution.
3 We believe that the knowledge of a policeman that certain crimes
4 were committed cannot be the sole basis for concluding the mens rea has
5 been fulfilled for a JCE, for if that were the case every policeman on
6 the plant would ipso facto be guilty of a JCE just by virtue of doing his
7 job as a policeman investigating crimes.
8 In this instant case the evidence is clear that there was no
9 mens rea that could be inferred from incidents and crimes in 1998 that
10 would lead to the sole reasonable conclusion that the crime of
11 deportation and forcible transfer as part of a JCE was underway or
12 intended by Lukic in 1999.
13 The sole instance of murder that was relied upon in the judgement
14 from 1998 as providing notice to the appellant was Gornje Obrinje, for
15 which in paragraph 1134 of book III the Chamber said that it was the key
16 evidence that Lukic knew that the police would commit crimes if it was
17 again utilised in 1999.
18 Not a single bit of evidence demonstrates that murder was
19 established in Gornje Obrinje or that Lukic, as a policeman, could
20 consider that murder had been established and the identity of
21 perpetrators had been established. The Human Rights Watch publication on
22 Gornje Obrinje was only written in 1999 - and that's at paragraph 900 of
23 book I of the judgement - and there is no evidence it was sent to Lukic
24 before or during the war. It likewise could not be considered as
25 establishing proof of a crime, but rather indications of what needed to
1 be checked out. Pavkovic's report based on the unconfirmed story of his
2 security organs, P1440, as to Gornje Obrinje was likewise internal to the
3 VJ and not brought to the attention of Lukic.
4 That which Lukic did know was demonstrated by the meeting
5 evidenced at 6D803, which talked of the rumours of a crime at
6 Gornje Obrinje and the difficulties encountered in trying to confirm the
7 information and conduct an investigation. From this meeting in October
8 of 1998, we see that Lukic was informed by the state security about the
9 Albanian press circulating sensationalised stories about Gornje Obrinje
10 which had been characterised by the state security as false propaganda.
11 Under the same scenario, President Milutinovic was acquitted.
12 As the police is concerned with hard evidence and substantive
13 investigations rather than mere rumours, it is important to look at what
14 was established as to Gornje Obrinje. International diplomats trying to
15 investigate, like Jan Kickert, were unable to confirm the crime had
16 occurred. Even the judgement at paragraph 910 of book I confirms that.
17 Kickert testified at trial of personal knowledge of the efforts to
18 perform an on-site investigation by the Serbian investigative judge;
19 that's in the same paragraph. We had the evidence that the investigative
20 team could not perform the on-site investigation because of the threat of
21 attack by the KLA on the investigative team. Witness Marinkovic at
22 transcript page 23526 talks about that. She was the investigative judge
23 and she confirmed that the Serbian MUP tried to secure the site to assist
24 her investigation, but an investigation was prevented by threats from the
25 KLA. Thus, there was no conclusion under the domestic law that a
1 criminal homicide had occurred. Whether the deaths were due to foul
2 play, whether the foul play was attributable to a known perpetrator, let
3 alone whether the perpetrator was a member of the Serbian security
4 forces, what was a professional and life-long police officer like Lukic
5 supposed to conclude from this paucity of evidence?
6 It should be noted that no Kosovo Verification Mission or KDOM
7 witnesses confirmed that a crime had been established in Gornje Obrinje,
8 not Shaun Byrnes, not Colonel Crosland, not General DZ, and not
9 Colonel Ciaglinski.
10 Leaving Gornje Obrinje, let us turn to other events from 1998
11 analysed by the Trial Chamber. The judgement analyses a total of nine
12 anti-terrorist actions conducted jointly by the police and the VJ in
13 1998, inclusive of Gornje Obrinje; this is at paragraphs 848 through 912
14 of book I of the judgement.
15 The Chamber in its analysis concluded that only in one out of the
16 nine operations was there any evidence of civilians being killed, and
17 that was Gornje Obrinje --
18 THE INTERPRETER: Mr. Ivetic is kindly asked to slow down for
19 interpretation. Thank you.
20 MR. IVETIC: -- for which the paucity of the evidence had already
21 been discussed. This would mean that the other eight actions did not
22 exhibit any elements that would provide notice to Lukic or anyone else of
23 the crimes of murder that could be imputed to a JCE for deportation. The
24 judgement found that in five out of the other eight actions there was no
25 indicia of either crimes or excessive force occurring. Look to
1 paragraphs 853, 860, 869, 873, and 898 of book I.
2 Under this set of facts, it is illogical for any Chamber to
3 conclude that murders and indeed different crimes, such as deportation
4 and forcible transfer, would result in 1999 as part of a future JCE when
5 anti-terrorist actions were again conducted.
6 What could Lukic conclude from the fact that in one of nine
7 anti-terrorist operations there were unverified rumours of civilian
8 deaths that the authorities tried to investigate but were prevented in
9 doing so by the KLA? Surely the existence of a widespread and systematic
10 JCE to deport the Kosovo Albanian population is not the only reasonable
11 conclusion available under this evidence.
12 Since it is not the only reasonable conclusion under the
13 evidence, any approach that automatically assumes a criminal mens rea for
14 a future JCE from past crimes of a different nature is flawed and in
16 As to your fifth question for us, relating to whether the
17 incident at Tusilje should have been pleaded in the indictment and
18 whether it was cured or the prejudice to the accused resulting therefrom,
19 we would like to say as follows.
20 The case law is clear that a Trial Chamber has erred when it
21 enters convictions depending on material facts that were not properly
22 pleaded in an indictment; this is paragraph 1112 [sic] of the
23 Kupreskic appeals judgement.
24 The judgement in our case references Tusilje in multiple
25 paragraphs in book II and the Chamber makes several findings linking
1 Tusilje to the same status as incidents in the indictment; see, for
2 instance, book II, paragraph 1219. It then bases its findings that there
3 was an attack upon the civilian population based on these findings,
4 including Tusilje. Thus, it is clear that the convictions of the trial
5 judgement are based on material facts that the Defence was not put on
6 notice of in the judgement [sic]. Thus, the Trial Chamber erred,
7 rendering the judgement unsafe.
8 It is the position of the Defence that this defect in the
9 indictment could not be cured and that the Defence could not be rightly
10 put on notice that any events in Tusilje would be considered to convict
11 the appellant. Indeed, had that been the case the appellant would have
12 presented Defence evidence as to Tusilje, which the Defence did not,
13 because Tusilje was not in the indictment.
14 Your Honours, I now briefly highlight some of the main points
15 from our appeal. At the outset I must stress that the Appeals Chamber
16 must step in where, as is the case here, factual findings are tainted by
17 multiple errors of law and fact. This is in line with the Kordic and
18 Cerkez appeals judgement at paragraphs 18 through 19. Likewise, as the
19 Appeals Chamber has reaffirmed in two recent decisions - in the Gotovina
20 case at paragraph 93 and the Mugenzi case at paragraphs 91 and 136 -
21 where it is not reasonable for a Trial Chamber to find that the only
22 possible interpretation of events involved a criminal purpose and JCE,
23 reversal and acquittal is warranted. It is submitted that the factual
24 errors in the judgement are so many and go to the heart of the judgement
25 that a limited review is appropriate, as no reasonable Chamber could have
1 excluded the alternative interpretations of events possible under the
2 evidence. And thus, Lukic should not have been convicted of
3 participating in a JCE. Absent such a review, a miscarriage of justice
4 would result.
5 It is respectfully submitted that, reviewing the errors raised in
6 our appellant's brief, it becomes clear that the Trial Chamber
7 consistently made inferences about the existence of a JCE, Mr. Lukic's
8 knowledge of the same, and his intent to join the same, and his voluntary
9 joining of such a criminal purpose, when in fact alternative and
10 reasonable conclusions were available under the evidence that demonstrate
11 the opposite, that Lukic was trying to uphold law and order and not
12 commit crimes.
13 As to mens rea, it is a reasonable conclusion to reach from the
14 evidence that Lukic was engaged in actions appropriate for a police
15 officer, attempting to uphold law and order in a difficult situation,
16 faced with a terrorist insurgency, NATO air strikes, and limited
17 authority. The judgement forgets that in 1999 NATO planes were bombing
18 all over Kosovo which cannot be ignored.
19 In order to assess the judgement's error, it is necessary to take
20 into account that Lukic's arrival to Kosovo, just like all his actions,
21 was dictated by a compliance with the law and was not voluntary, let
22 alone with intent to conduct crimes. Lukic was sent to Kosovo by force
23 of law, which permitted a member of the MUP to be assigned by the
24 minister to any position anywhere on the territory of Serbia. This law
25 is in evidence at P1737, Article 72. The record demonstrates that all
1 three decisions sending Lukic to Kosovo, P1252, P1505, and P1811, all
2 invoke Article 72 of this law. Article 33 of the law dictates that an
3 employee of the ministry is duty-bound to carry out the orders of the
4 minister if they do not themselves amount to a criminal offence on their
5 face. The text of the aforementioned decisions makes clear that what was
6 being asked of Lukic was the regular and normal performance of police
7 duties, not anything that could be construed as criminal acts.
8 Further, it is significant to note that President Milutinovic who
9 was acquitted of any role in the JCE enacted an instruction on internal
10 affairs during the time of war, which is P993, which also in Article 7
11 made it mandatory for Lukic to carry out his assignments given by police
12 superiors unless they clearly involved the commission of crime and called
13 for disciplinary proceedings for those who refused to carry out
14 legitimate orders. Thus, it was entirely reasonable for Lukic, like
15 Milutinovic, to have an intent and frame of mind separate and apart from
16 a criminal one, when performing his duties in Kosovo pursuant to orders
17 and laws that were legitimate on their face.
18 The Trial Chamber, in book III, paragraph 92, concedes that the
19 problems relating to the KLA were supposed to be resolved by the state
20 using the police and the judicial system. Thus, contrary to a finding
21 that Lukic's acceptance of his position as head of staff involved any
22 criminal intent, another reasonable inference under the evidence is that
23 he was following the law and attempting to perform legal, normal police
24 functions, in an effort to bring law and order to all citizens within his
25 means, indeed what the Chamber had called the appropriate course of
2 As part of fulfilling his duties, Lukic had to attend meetings,
3 both in Kosovo and in Belgrade. The judgement erroneously links his
4 attendance to Belgrade meetings as evidence that he shared in a criminal
5 intent, a common purpose as part of a JCE. We see this in book III,
6 paragraphs 1019, 1022, 1024, and 1040. However, this is contrary to the
7 judgement's finding as to Milutinovic, whose presence at the same
8 meetings was determined not to show criminal intent. We see that at book
9 III, paragraphs 132 and 143. Further, the Appeals Chamber has recently
10 ruled in an ICTR judgement of Mugenzi case at paragraph 139 that:
11 "No reasonable trier of fact could have excluded the reasonable
12 possibility that Mugenzi and Mugiraneza attended the installation
13 ceremony for purposes other than because they shared the common criminal
15 In that case the reasonable alternative meaning was that they
16 attended the ceremony as a result of obligations arising from their
17 positions as ministers. Your Honours, Lukic's attendance at meetings is
18 also purely a result of his obligations arising from his official
19 position, not because of any knowledge or acceptance of any criminal
21 Instead of looking at his mere attendance at meetings, the
22 Chamber should have focused on direct evidence of Lukic's intent as
23 contrary to any criminal purpose.
24 The Trial Chamber erroneously lists the criminal purpose as
25 ensuring the continued control by Yugoslavia and Serbia over Kosovo by
1 criminal means, to wit, the deportation of the Albanian population. This
2 is in book III, paragraph 95. No reasonable trier of fact could exclude
3 the possibility that continued sovereignty over Kosovo was envisioned as
4 a legitimate and legal function of the state. Also, no evidence can
5 demonstrate Lukic knew of any nefarious or illegal element such as the
6 removing of Albanians.
7 In relation to the continued sovereignty over Kosovo, this is a
8 recognised tenet of the Constitution of Serbia, rather than any criminal
9 goal or purpose. This tenet was reiterated and confirmed by all the
10 international instruments drafted during the relevant time-period,
11 including the Resolutions of the UN Security Council, P455, P456, P433;
12 also including the Contact Group proposals discussed at paragraph 314 of
13 book I; and the principles of the Contact Group at paragraph 354 of the
14 same book; the Gelbard statement, that is 6D1491; the
15 Milosevic-Holbrooke Agreement, that is 1D204; the Jovanovic-Cermak
16 Agreement, that is P432; the Perisic-Clark Agreement at P454; and the
17 Kumanovo Accords at 6D611. Under this backdrop it is illogical to see
18 how and why Lukic had to understand such a tenet as requiring criminal
19 purpose and criminal means to be attained when the international
20 community itself promoted the sovereignty of Serbia and Yugoslavia over
22 This past Monday the Prosecution again identified
23 Slobodan Milosevic as playing a pivotal role in the JCE. As to the
24 erroneous conclusion that Lukic shared the intent of Milosevic and other
25 alleged members of the JCE to commit crimes, the Trial Chamber in
1 book III, paragraph 1115 did not offer a single piece of evidence.
2 Indeed, the evidence to the contrary demonstrates that Lukic stands apart
3 from other named members of the alleged JCE. He was neither a person
4 close to nor trusted by President Milosevic nor
5 MUP Minister Stojiljkovic. The evidence is clear.
6 Indeed, the Trial Chamber itself confirms at book III,
7 paragraph 85, that Lukic did not fit the pattern of persons said to be
8 carefully positioned to high-level positions by Milosevic. It is clear
9 from the evidence that Lukic, rather than being promoted by Milosevic,
10 was demoted in 1991. We can see this from P948, 6D1360, 1D680, and is
11 also confirmed in the judgement at book III, paragraph 937.
12 In May of 1997, Stojiljkovic, presumably with the prior
13 consultation with Milosevic appointed a major to be the SUP chief and to
14 be Lukic's immediate superior. It should be noted at this time Lukic was
15 a general in rank. And we see that from the testimony of Golubovic at
16 transcript page 7426 as well as 6D1458 and 6D1457.
17 Even when Lukic was sent to Kosovo, the evidence is clear that
18 two high-level assistants of Stojiljkovic were in Kosovo,
19 Assistant Minister Obrad Stevanovic, who was also the PJP commander; and
20 Vlastimir Djordjevic, the chief of the public security sector and deputy
21 MUP minister. The judgement finds that Lukic's appointment did not
22 replace the existing command structures of the MUP. This is at
23 paragraph 1012 of book III. Further, we have evidence of another alleged
24 close associate of Milosevic, General Ojdanic, the Chief of Staff of the
25 VJ, for whom the judgement confirms he was carefully positioned by
1 Milosevic to replace General Perisic who was less malleable to
2 Milosevic's whims, at book III, paragraph 85. The transcript of a
3 meeting, 11 April 1999, chaired by Ojdanic refers to General Lukic as an
4 adjutant, demonstrating that Lukic was not seriously considered as a
5 major player. This is at 3D728.
6 Furthermore, we had a key Prosecution witness,
7 VJ General Vasiljevic, who described Lukic's role at a meeting he claimed
8 was of a so-called Joint Command as being the "last hole on the flute,
9 the 13th piglet." This is at transcript page 9066. Under the totality
10 of the foregoing, no reasonable trier of fact could determine that Lukic
11 had any command authority or that these meetings in Pristina were a place
12 where Lukic exercised any kind of de facto authority.
13 After the war, Lukic was not promoted to a choice position within
14 the MUP, but rather was appointed as head of the border police
15 administration, which at the time was the lowly fourth department in the
17 Later, you will hear about what Lukic did within that position,
18 which is also contrary to the intent to further a JCE.
19 Lukic was only promoted and appointed to a high-level position
20 within the MUP within 2001, after the overthrow of Milosevic by
21 democratic forces. We see this from Prime Minister Zivkovic's 92 ter
22 statement, 6D1607, paragraph 4. Thus, only after Milosevic and his MUP
23 Minister Stojiljkovic, and the assistants Djordjevic and Stevanovic were
24 removed, was Lukic able to be promoted and made chief of public security.
25 Later in our submission you will hear how Lukic acted while in this
1 position. Co-operation with the ICTY and transfer of accused to the
2 Tribunal from Serbia first occurred during Lukic's tenure, and he did
3 many other things to investigate crimes against Albanians and others
4 committed during the prevailing years.
5 One has to ask, given the foregoing evidence, would it be logical
6 for MUP officers Stojiljkovic, Djordjevic, and Stevanovic, as named
7 participants in an alleged JCE, to include and rely upon a person who was
8 not of their choosing, was not trusted by them, and did not owe them any
9 favours, and, in any event, did not hold a position that had any
10 effective control over any units? Or would it be more logical that these
11 named members of a JCE would exclude Lukic and would effectuate the same
12 using their own positions within the highest leadership of the MUP and
13 did not need Lukic.
14 I have to remind the Chamber that the evidence at trial showed
15 that Lukic's MUP staff at all times was comprised of only eight to ten
16 people. The testimony of Mijatovic at 22167 through 22172 confirms that.
17 The Trial Chamber did not perform this analysis and it is in
18 error because it was supposed to exclude any such possibility before
19 convicting Lukic.
20 On the other side, would it be logical for Lukic, who devoted his
21 life to law enforcement, to abandon the same to side with persons who had
22 degraded and demoted him? We say it defies logic. Would it be logical
23 for Lukic to be promoted to the head of the MUP after the fall of
24 Milosevic and would it be logical for him to initiate co-operation with
25 the ICTY and investigation of crimes if in fact he were involved in these
1 crimes? We say that defies logic.
2 If we can now return to focus on the time-period of the
3 indictment, I think it is essential to review the evidence on record that
4 demonstrate the intent of Lukic to be contrary of any criminal enterprise
5 as this demonstrates the further error of the Chamber.
6 In book III, paragraph 918, the judgement rightly gave credit to
7 Lazarevic for a limited number of efforts by way of written declaration
8 to ensure the army acted appropriately in carrying out its duties. As to
9 Lukic, the Trial Chamber first acknowledges that Lukic issued what it
10 calls orders to direct the police to prevent crimes and prevent the
11 departure of civilians from Kosovo and even likens them to these VJ
12 orders to abide by the law which, it says, were violated by the forces.
13 But Lukic's written reminders for the police to adhere to the law and
14 treat civilians accordingly were viewed in a negative light by the
15 Chamber. Look at paragraphs 1124 and 1129 of book III.
16 These steps by Lukic, even from a position where he had a limited
17 authority, demonstrate that he did not share any intent to commit crimes
18 against ethnic Albanians. Rather, Lukic committed himself to call for
19 measures to be undertaken to prevent crimes and prevent mistreatment
20 against Albanians and for punishment of all persons found to be
21 committing these crimes, including police members.
22 It is submitted that 12 key pieces of evidence were erroneously
23 analysed by the Trial Chamber and that these documents demonstrate
24 Lukic's true intent and character. All of these exhibits are first hand
25 from Lukic, containing either what he said or wrote.
1 A brief overview of this evidence demonstrates that each of these
2 12 dispatches and reports from meetings of encouragement and reminders
3 issued by Lukic call for energetic measures by the police to prevent any
4 mistreatment of Kosovo Albanians, that the police prevent persons from
5 evicting Kosovo Albanians from their homes, that measures be taken to
6 apprehend criminals and terrorists, and that citizens should be persuaded
7 not to leave their villages by guaranteeing that safety measures in
8 accord with the law would be taken.
9 These documentary exhibits are as follows: 6D768, dated
10 7 August 1998; 6D872, dated 23 February 1999; 6D666, dated 3 April 1999;
11 P1989, dated 4 April 1999; 6D778, dated 15 April 1999; 6D874, dated
12 6 May 1999; P1996, dated 7 May 1999; 6D773, dated 8 May 1999; P1993,
13 dated 11 May 1999; 5D1423, dated 12 May 1999; 5D1418, dated 26 May 1999;
14 5D1421 dated 11 June 1999; and P1468 at various dates.
15 The Trial Chamber, at paragraph 1129 of book III, tries to cast
16 these, what it calls, orders by Lukic as not being genuine. However,
17 elsewhere, at paragraphs 92, 173, 1001 of book III, it relies on his same
18 items as genuine orders demonstrating that Lukic had a command role and
19 authority over MUP units. Respectfully, Your Honours, you can't have
20 your cake and eat it too. Either these orders were genuine and show
21 Lukic did not intend crimes but perhaps lacked authority to enforce his
22 orders, or they are not genuine; and in that case cannot demonstrate any
23 command authority for Lukic. The Trial Chamber failed to analyse or
24 exclude the reasonable alternative, that these orders were genuine but
25 that Lukic had no authority over MUP forces.
1 Now I would like to return to a point we have alluded to, the
2 limited authority of Lukic as head of the MUP staff for Kosovo.
3 These 12 documents are important to understand why it would be
4 impossible for Lukic to significantly contribute and further any
5 objective of any criminal purpose on the one hand and why the
6 Trial Chamber erred in dismissing them as not genuine.
7 At book III, paragraph 1129, the judgement claims that Lukic,
8 despite his knowledge of the events on the ground, nevertheless continued
9 to order the MUP to engage in joint operations with the VJ and uses this
10 to claim that his orders for prevention and mistreatment of civilians are
11 not genuine. There is no supporting evidence cited that Lukic had a
12 authority to order the MUP to continue engaging in joint operations. To
13 the contrary, a plethora of evidence is on the record that Lukic did not
14 have effective control or command authority.
15 Lukic did not have authority to punish or discipline any MUP
16 personnel directly. This is conceded by the Trial Chamber, at book III,
17 paragraph 1049. It is thus inconceivable for Lukic to have command
18 authority over the MUP when the judgement confirms he did not have the
19 power to punish. Without such a power, one cannot enforce adherence to
20 any orders.
21 The evidence that Lukic could not institute criminal proceedings
22 against police members includes 6D1613, paragraph 43.
23 The evidence that Lukic was not authorised to make decisions as
24 to instituting disciplinary proceedings against police members can be
25 found, for instance, at 6D1613, 6D1340, and the testimony of
1 Witness Cvetic at 8152 through 53. Further, we have the order of
2 President Milutinovic discussed previously as to the disciplinary rules
3 of the MUP which did not identify either the MUP staff or Lukic as having
4 any such authority; that is P993.
5 The evidence we have just cited demonstrates that police
6 superiors did not have an obligation either to inform Lukic nor seek his
7 approval for instituting disciplinary actions against their subordinate
8 police officers. That Lukic had no role is seen also by 6D133 and 6D1342
9 which the republican MUP sent out delineating regulations for
10 disciplinary proceedings during the time of war, where, again, he was not
11 even foreseen to be informed of such instances.
12 Another factor to consider is that Lukic did not even have
13 authority to reassign or remove any police member, even members of his
14 own staff; P1884 demonstrates that fact. And P1885 and P1886 demonstrate
15 that when officers of the SUPs were replaced and new persons appointed,
16 these decisions originated from deputy minister and chief of public
17 security Djordjevic, not Lukic.
18 Insofar as the Chamber did not make a difference between the
19 period before and during the NATO bombing campaign, it further did not
20 take into account that there was no room for Lukic to have any command
21 type authority, since during the time of war assistant minister and
22 commander of all the PJP, General Obrad Stevanovic, who was also the
23 chief of the police administration, was on the ground in Kosovo for the
24 entire duration of the war and out in the field with the PJP units. This
25 can be seen from P948, the testimony of Mijatovic at 22255; the testimony
1 of Vucurevic at 63064 -- 23064; Bogunovic's 92 ter statement, 6D1614,
2 paragraphs 6, 67, and 76; the testimony of Ilic at 24418; and Zivaljevic
3 at 24927.
4 This error is despite the fact that the judgement recognises that
5 Obrad Stevanovic and Vlastimir Djordjevic were the only MUP members
6 present when the issue of resubordination of the MUP to the VJ was at
7 issue, not Lukic. Look to book I, 1170 of the judgement for that.
8 The evidence is also clear that Lukic did not take part in
9 drafting the global plan for terrorism -- for suppression of terrorism.
10 The Trial Chamber itself confirms this at paragraph 1021. Having so
11 found, the Chamber then erred attributing to Lukic a commanding role as
12 to this global plan, at paragraphs 985 and 1058 and 1051 of book III.
13 All anti-terrorist actions in 1998 were carried out under the
14 global plan and this same modus was used in 1999 as well with the
15 military planning the actions.
16 That Lukic did not have a role in planning anti-terrorist actions
17 of the VJ or the police was confirmed by multiple witnesses from within
18 the police and the VJ, but most notably by Chamber Witness
19 Colonel Djakovic at transcript page 26536 through 538; 26522 through 23.
20 And also Mijatovic at transcript 22197 through 8, and Adamovic at 24976
21 through 77.
22 As part of the overall totality of the evidence it must be
23 recalled that the Law on Defence, Article 16, stipulates that at the time
24 of war the army commands all combat activities. There is simply no room
25 for Lukic. This is P985.
1 Lastly on this topic, I would like to highlight that the
2 judgement erroneously attributes to Lukic an instrumental role in
3 communications between Belgrade and Kosovo, in book III, paragraph 1059.
4 However, this is in contradiction to other findings that actually
5 summarise the evidence. For instance, book III, 1090, confirms that per
6 the rules of the MUP - that would be P1044 - the seven SUPs on the
7 territory of Kosovo have to send their dispatch reports directly to
8 Belgrade and also to the MUP staff. It is thus more than clear from this
9 that Lukic's staff only received reports in parallel and in no instance
10 could have information that Belgrade did not already have from the field.
11 On the issue of notice of crimes by the MUP and VJ, the Chamber,
12 at book III, paragraph 1134, relies on a 6 May 1999 dispatch forwarding a
13 news article to SUP chiefs from the MUP staff, following a meeting in
14 Belgrade where, among others, Milosevic was present and so was Lukic.
15 However, the article in question does not relate to any allegations of
16 crimes committed by the MUP and neither did that Milosevic meeting.
17 Further, the crimes in question were being rightly investigated by the
18 appropriate authorities. This dispatch urges police to act in accord
19 with the law and professionally to prevent persons attempting to
20 perpetrate such crimes. Thus, the objectivity of the Trial Chamber is
21 placed in doubt by its misapplication of this document.
22 The Trial Chamber also tries to attribute significant meaning to
23 the daily overviews that were sent from the MUP staff. These were only
24 routine summaries of normal police work based on reports from the SUPs
25 and it is important to note that they do not contain references to crimes
1 from the indictment. Likewise, these overviews, at most, informed Lukic
2 of investigations underway to locate perpetrators of crimes and preserve
3 evidence which is not the light in which the judgement represents them.
4 Thus, these overviews could only provide Lukic with the same type of
5 information that was the basis of President Milutinovic's acquittal.
6 Lastly, at book III, paragraph 40, the Trial Chamber says:
7 "... the confiscation and destruction of identity documents is
8 some of the strongest evidence in the case going to show that the events
9 of spring 1999 in Kosovo were part of a common purpose."
10 As to the alleged confiscation of ID documents, the Chamber's
11 error in considering the evidence is significant. We must keep in mind
12 that the judgement confirms that a majority of witnesses said this was
13 done at the border - this is in book III, paragraph 32 - and by "majority
14 of witnesses," this does not mean a majority of those that testified
15 because, as we know, only 26 out of 62 Kosovo Albanian witnesses spoke of
16 witnessing such confiscation and even fewer claimed to have been
17 personally victims of such confiscation. We can see that evidence
18 summarised in the same paragraph of the judgement.
19 Respectfully, this is not enough to conclude a common criminal
20 purpose, nor is it sufficient to demonstrate the strongest evidence of a
21 common purpose, as the Chamber concludes in paragraph 40. In any event,
22 the error as to Lukic is compounded by the fact that the Chamber conceded
23 he did not have authority over the border police stations, where such
24 confiscations allegedly occurred; and that is a finding from book III,
25 paragraph 1075.
1 Also, the evidence of record is that there are only allegations
2 of such confiscations occurring at one of the several border crossings
3 that were in existence, six in total.
4 The Chamber's error as to identity documents did not adequately
5 take into consideration that under the existing domestic law, which would
6 be 1D226, the Law on Yugoslav citizenship, the loss of such identity
7 documents did not in any way destroy the citizenship records of an
8 individual. Indeed, later you will hear how Lukic undertook to issue new
9 passports to 220.000 Kosovo Albanian citizens after the period of the
11 I would now like to address our arguments as to mitigation, per
12 Rule 101(B)(ii). The judgement having entered an erroneous finding of
13 guilt improperly compounded that error by misapplying the law of
14 mitigation. It is submitted that Lukic is entitled, at the very least,
15 to a significant reduction in sentence. There are three factors in
16 mitigation that apply. These factors are: First, Lukic's voluntary
17 surrender and interview; then his assistance in an investigation and
18 contribution to law and order in a number of cases connected to the
19 crimes against Albanian civilians including some crimes in the
20 indictment; and, third, is his deteriorated health and personal
22 At this time I would like to point out the most glaring error of
23 the Trial Chamber that first acknowledges, in book III, paragraph 1202,
24 that Lukic is entitled to credit for mitigating factors unique to him,
25 but then it declines to give such credit and sentences him uniformly with
1 other accused lacking such personal mitigation evidence. This is at
2 book III, paragraph 1205. Your Honours, this violates the very purpose
3 behind Rule 101(B)(ii).
4 The trial judgement at paragraph 1152 of book III recognised that
5 under the jurisprudence voluntary surrender and co-operation are to be
6 afforded status as mitigation. It is submitted that the Trial Chamber
7 erred and unfairly deprived Lukic of the benefit of his voluntary
8 surrender and interview given to the Prosecution. While correctly
9 acknowledging that co-accused Lazarevic was entitled to mitigation credit
10 for his voluntary surrender, in book III, paragraph 1200, the
11 Trial Chamber, at book III, paragraph 1204, regarded that Lukic was not
12 entitled to credit for his voluntary surrender. The only rationale given
13 by the Chamber was its own prior decisions on provisional release which
14 neither take into account the totality of the evidence nor the prevailing
15 jurisprudence. Furthermore, the first decision cited by the Chamber in
16 support of its conclusion does not, in fact, relate to Lukic but relates
17 to a co-accused showing that the Chamber erred in its analysis.
18 Likewise, as to the interview given by Lazarevic, the Chamber
19 correctly qualifies the same as significant co-operation that is afforded
20 mitigation credit at book III, 1198. As to Sreten Lukic, who gave his
21 interview before ever being indicted for any crimes and without any
22 reservations, without any limitations, without representation of counsel,
23 the Chamber, in book III, paragraph 1202, does not afford it as
24 constituting significant co-operation nor mitigation credit. Such
25 disparate treatment is erroneous.
1 Your Honours, I next want to touch on the contributions of
2 Mr. Sreten Lukic to law and order. At book III, paragraph 1205, the
3 Trial Chamber determined that irrespective of the personal mitigating
4 circumstances that had been established for Mr. Lukic, he had to have an
5 identical sentence to other co-accused found to be part of the JCE.
6 THE INTERPRETER: Kindly slow down. Thank you.
7 MR. IVETIC: As to Lukic, there was significant evidence that he
8 worked within his mandate in different posts in the MUP after 1999 to
9 contribute to peace and reconciliation and bring justice to all crime
10 victims, including Albanians. Even though the Serbian MUP withdrew from
11 Kosovo, Lukic after his appointment as head of the department issuing ID
12 documents, undertook to facilitate the issuance of new ID documents to
13 Kosovo Albanians through an office in Pristina, all until the head of
14 that office was assassinated by the KLA. We have the testimony of
15 Dujkovic at 23367 of the transcript on that. Then Lukic opened a
16 satellite office to continue this work in Nis, the closest major city to
17 Pristina. The evidence shows that most of the persons obtaining
18 documents were ethnic Albanians. From Dujkovic, transcript page 23367
19 through 23368, we see that in evidence. And as I've mentioned, in this
20 manner over 220.000 new passports were issued to Kosovo Albanians in a
21 short time immediately after the war during Lukic's tenure in this
22 department. We see that from Odalovic at transcript page 14447 through
24 After the ouster of Milosevic, Lukic was appointed by the
25 democratic authorities as chief of the public security sector and thus
1 attained more powers. At that time, based on information from media
2 reports, Lukic spear-headed the commencement of unfetterred and
3 wide-scale investigations by the MUP as to mass graves and war crimes
4 dating from the Kosovo war. We -- I would urge Your Honours to look at
5 the record in our final trial brief at paragraphs 1464 through 1485. We
6 summarised the evidence on that which was significant.
7 Further, he promoted and facilitated co-operation between the MUP
8 and the ICTY as to ongoing investigations. The final trial brief at
9 paragraphs 1486 through 1507 summarise that, and that was before the
10 Trial Chamber.
11 This was all in spite of the unpopularity of such actions and
12 threats made to his life and safety when he set up a Working Group to
13 investigate claims of cover-ups of atrocities perpetrated against
14 Albanians. I would point to Prosecution Witness K84 at transcript
15 page 5228. Indeed, Defence and Prosecution witnesses talked of Lukic's
16 integral role in post-conflict efforts to uncover crimes in Kosovo and
17 promote justice, including co-operation with the ICTY; those would be
18 K84, 6D2, Zivkovic, Kostic, and Furdulovic.
19 Lukic initiated a project to gather all documentation from
20 Kosovo, to preserve records, so as to assist in prosecutions of
21 perpetrators even after the war. Witness Kostic talked about that at
23 Further, Lukic undertook to try and resolve the tensions in the
24 south of Serbia by creating a new multi-ethnic police in that region
25 which included Albanians. Dujkovic at transcript page 23369 and Zivkovic
1 at transcript page 24685 talked about this. Indeed, the Trial Chamber
2 recognised some of this and at book III, paragraph 1202, found that:
3 "... Lukic contributed to law and order in a number of cases
4 connected to the crimes in the indictment, and therefore we will take
5 this into account in mitigation when determining his sentence."
6 However, the Chamber did not follow through with its own finding.
7 The Chamber's negation of mitigating factors is improper. It also sends
8 the wrong signal, which would stifle efforts of others, contemplating
9 personal sacrifice to promote law and order. If an individual who puts
10 his life on the line to investigate crimes and bring perpetrators to
11 justice is not afforded mitigation credit and is to be punished equally
12 with others who do not have evidence of such efforts, then where is
13 justice and what is the meaning of Rule 101(B)(ii)?
14 Here Sreten Lukic personally undertook when he came to a position
15 within the police where he could do so, to have investigations carried
16 out on crimes, including those from this indictment, and spear-headed the
17 first steps for co-operation between Serbia and the Tribunal. It should
18 be noted that under the leadership of Lukic, the Serbian MUP made the
19 first arrests and transfers of ICTY indictees, eight in total, and
20 transferred seven more persons to the Tribunal pursuant to voluntary
22 I would like to now turn to the diminished health of Lukic.
23 First of all, it is apparent from the face of the judgement that the
24 Chamber did not review all the pertinent filings when it said on
25 book III, paragraph 1202:
1 "The Chamber has re-examined the relevant documentation in the
2 record of the proceedings but does not consider that Lukic's state of
3 health rises to the level that would warrant mitigation of his sentence."
4 The Chamber's review was only of less serious health
5 complications, which we see from the decisions -- from the filings cited
6 in the footnote. These were a bad back and tooth problems, and the
7 Chamber ignored and did not mention the very serious condition that
8 required two cardiac surgeries before Lukic's surrender, one of which
9 resection of an aneurism of the ascending aorta with interposed graft and
10 replacement of the aortic valve in 2004 is regarded as one of the most
11 serious cardiac invasive procedures.
12 The seriousness of the Trial Chamber's error is best illustrated
13 by the information that this Chamber now has before it. Appendix B to
14 the appellant's brief demonstrates the underlying medical condition and
15 the serious problems that plagued his treatment upon his arrival to the
16 Tribunal. You now also have on the record from the provisional release
17 filings the report of medical professionals dated 13 February 2002 [sic]
18 and 21 January 2013 respectively, from which we see that:
19 "The survival rate among socially isolated patients with coronary
20 disease is twice lower than that among socially integrated patients in
21 the short term ... studies in Sweden have shown that the ten-year
22 survival rate of patients with coronary heart disease is three times
23 better among socially integrated patients than isolated ones."
24 The Appeals Chamber should rightly consider that this current
25 22-year sentence against Lukic is, in fact, potentially a life sentence
1 due to the morbidity statistics set forth by the medical professionals.
2 This should be viewed as a mitigating factor and should be taken into
4 And at this time, Your Honour, I don't know whether we should
5 have the break prematurely or if I can pass the podium to my colleague,
6 Mr. Lukic.
7 JUDGE LIU: Well, I believe we will have the break right now and
8 we will resume at quarter to 12.00.
9 --- Recess taken at 11.11 a.m.
10 --- On resuming at 11.45 a.m.
11 JUDGE LIU: Yes, counsel for Mr. Lukic, you may continue.
12 MR. LUKIC: Thank you, Your Honours. To spare you from my heavy
13 accent, I will give this part in B/C/S so you receive proper translation.
14 [Interpretation] First of all, a small digression. My colleague,
15 Mr. Ivetic, mentioned, among others, two people, those are
16 Obrad Stevanovic and Mr. Djordjevic. We should like to point out to
17 Your Honours that both these persons throughout 1998 and 1999 were
18 superior to Mr. Sreten Lukic.
19 I shall now deal with only some of the errors in fact made in the
20 trial judgement relative to our client. You have heard on this topic
21 from other Defence teams relative to other accused in this case.
22 Our Defence believes that the established practice in this
23 Tribunal is that the Appeals Chamber must intervene when it is clear that
24 the Trial Chamber has committed numerous errors in fact and in law. We
25 would mention not only the dissenting opinion of Judge Morrison on the
1 appeal judgement in the Milan and Sredoje Lukic case, paragraph 8, but
2 also the appeal judgement in the Kordic and Cerkez case, paragraphs 18
3 and 19, as well as the judgement in the Blaskic case.
4 In our appeal brief we have only partially outlined some of these
5 errors because account had to be taken within the limit of words also of
6 other grounds of appeal that this Defence deems important. Thus, the
7 scope of the errors stated in our appeal brief does not nearly reflect
8 the actual extent of the errors. On this occasion, we shall deal only
9 with the errors noted in Volume III of the judgement. We emphasise that
10 the findings and conclusions in 45 paragraphs of Volume III, which is
11 almost one-fourth of the paragraphs related to my client, rely on
12 erroneous, incorrect, inconsistent, and incompletely quoted 194 exhibits
13 that were thus erroneously analysed. This fact cannot and must not be
14 ignored. The judgement does not reflect the actual state of facts, and
15 it is therefore evident that the Trial Chamber, due to these errors,
16 erroneously made legal conclusions on the role of Sreten Lukic and
17 therefore also erroneous conclusions on his liability.
18 The massive number and the substance of these errors considerably
19 invalidate the findings and the conclusions of the Trial Chamber.
20 The judgement is replete with findings and conclusions
21 referencing footnotes, but when one reads the exhibits from those
22 footnotes they simply fail to corroborate the findings and conclusions
23 from the paragraphs of the judgement.
24 If the judgement were to be read on its own, it makes sense; but
25 it does not make sense if the allegations, the findings, and conclusions
1 of the Trial Chamber are cross-checked with the exhibits referenced in
2 the footnotes. This has led to a great injustice done to my client
3 because based on these and such numerous errors, erroneous legal
4 conclusions were made on the liability of my client. We have divided
5 these errors today into several groups. The first groups are errors
6 related to overviews of daily events and incidents made by the MUP staff
7 in Kosovo. These overviews were made on the basis of reports received
8 from secretariats of internal affairs in Kosovo, and as we have heard
9 those reports were in parallel and primarily sent to the headquarters of
10 the MUP in Belgrade and copied to the MUP staff in Pristina for their
12 Although the source documents state that they are overviews, the
13 Trial Chamber persistently calls them reports, which makes an essential
14 difference. Most of the reports had already been sent to the MUP staff
15 in Belgrade. We can see that from the numbers of the documents cited in
16 the reference numbers allocated by the staff. These documents are used
17 by the Trial Chamber as evidence in making conclusions on various issues
18 concerning the powers and the role of Mr. Lukic as head of that staff.
19 As a rule, the Chamber attempts to prove the opposite of what
20 these reports show; namely, the conclusive finding concerning these
21 overviews is cited in para 1059, referencing footnote 2657, where the
22 Chamber states:
23 "Lukic's name is printed at the end of every report, but he did
24 not sign those reports physically."
25 Despite this conclusion, in the concluding paragraph, 1123 of
1 Volume III, the Chamber states how these reports were made and what Lukic
2 knew about the events in Kosovo.
3 "They were later integrated into one comprehensive report that
4 Lukic signed and sent to the MUP in Belgrade."
5 The statement that Lukic signed and sent is directly opposite to
6 the previous finding of the Chamber, where it stated that Lukic did not
7 sign these reports.
8 In several paragraphs the Chamber references these reports as
9 evidence that Lukic had knowledge that he was an important chain in
10 reporting and similar, saying that Lukic signed these reports. However,
11 the fact is that none of these reports were signed by Lukic himself, also
12 because those reports were not even in the possession of Sreten Lukic
13 because it was the routine work of the analyst at the staff. The analyst
14 was Desimir Slovic prior to the bombing, and after he was wounded in the
15 NATO bombing of Pristina at the beginning of the conflict he was replaced
16 by Vojislav Gucic. The reports that Sreten Lukic saw could only inform
17 him that criminal acts were being detected and duly prosecuted, and the
18 same applies to all the reports that are not even all part of the case
19 file, although we have given them all to the OTP, and in this case we
20 have 30 such reports in evidence. Each of these reports states that
21 crimes were being detected and duly prosecuted.
22 The judgement, however, relies on its own erroneous
23 interpretation of reports in a large number of paragraphs: Volume III,
24 1052 [sic], 48 reports in the footnote 2639, 26 reports in footnote 2640,
25 22 reports in footnote 2641; Volume III, 1054, four reports in footnotes
1 from 2654 to 2648; then Volume III, 1090, quotes 6D1246; Volume III,
2 1091, references 6D1239 on three occasions; Volume III, 1094, 6D1242,
3 P1693; Volume III, 1096, 16 report stated in footnote 2751; Volume III,
4 1123, eight reports in footnote 2824; Volume III, 1124, 16 reports in
5 footnote 2826.
6 From this we see that in eight paragraphs 146 reports are
7 referenced which the Trial Chamber says have been signed by Lukic which
8 is not confirmed by any of the reports themselves. Precisely this
9 massive number creates a false impression of the role and powers of
10 Sreten Lukic and his knowledge of crimes. One should emphasise that the
11 case file contains a total of 30 overviews of the MUP staff in Kosovo and
12 Metohija, but their repetitive references to them create the false
13 impression that they are much more numerous.
14 Another group of errors concerned the conclusions of the Chamber
15 when it says that Lukic issued an order, an instruction, or similar and
16 signed them personally which is refuted by the source documents invoked
17 by the Chamber. None of these documents were physically signed by Lukic.
18 They were signed instead by members of the staff and even some generals
19 from Belgrade who came to Kosovo and used the premises of the staff and
20 even the letter-head of the staff and its leader.
21 With Exhibit 6D874 referenced in footnote 2528 and with
22 paragraph 1005, Volume III, the Chamber states the following:
23 "The Chamber notes that even if the dispatch was not sent by
24 Lukic, it was nevertheless sent from the MUP staff in his name. No
25 suggestion was made that it was unauthorised."
1 In contrast to this, we have the testimony of Gvozden Gagic who
2 explained the entire process of the drafting and sending of this
3 document, stating clearly that Sreten Lukic not only did not participate
4 in writing this document, but that he was not even informed of its
5 sending from the address of the staff, nor was any authorisation sought
6 from him. It was explained also that a different person signed the
7 document, although at the bottom of the document we find the name of
8 Sreten Lukic. This is the testimony of Gvozden Gagic, T.24476/24 to
10 Therefore, no decision or approval was needed from Sreten Lukic
11 to send something from the MUP staff. That was also the only address
12 from which his superior, Obrad Stevanovic, wrote and sent documents
13 whenever he was in Pristina instead of in the field with PJP units.
14 We find similar erroneous conclusions of the Chamber also in the
15 following paragraphs and exhibits: Volume III, para 988, Exhibit 6D690
16 and P2528; paragraph 1004, Volume III, Exhibit 6D237; Volume III,
17 paragraph 1005, Exhibit 5D1289; Volume III, 1093, Exhibit 6D874;
18 Volume III, para 1092, Exhibit 6D874 and 6D876; Volume III, para 1095,
19 Exhibit 5D1289. In these six paragraphs the Chamber derives erroneous
20 conclusions related to nine exhibits.
21 The next group of conclusions involving inaccurate, incomplete,
22 or inconsistent citation or interpretation of exhibits. Again, due to
23 the massive number of these errors, the Chamber made erroneous findings
24 and ultimately erroneous conclusions, and as a rule these findings and
25 conclusions went to the detriment of Lukic. Therefore, had the
1 Trial Chamber used correct and accurate interpretations of the said
2 evidence, it would have reasonably reached different conclusions that
3 would be in favour of Lukic's Defence.
4 We're going to give you a flagrant example from Volume III, 1031,
5 where the Chamber cites that Lukic mentioned that there are allegedly --
6 there is an alleged mass grave in the section of Jablanica and cites
7 P1468, page 134. In the next paragraph, Volume III, 1032, it says that
8 this example indicates that Lukic was informed about the activities of
9 the MUP which would indicate that the mentioned mass grave was the result
10 of action by the state forces. The exhibits to which the Chamber refers
11 do not indicate anything like that. Quite to the contrary. Numerous
12 exhibits show that Jablanica was in territory under the control of the
13 KLA and that the KLA staff was also located in Jablanica at the time.
14 Thus, Lukic is referring to crimes of the KLA, and we can see that from
15 Exhibits 5D1307, 4D137, 4D140.
16 Brahimaj was even convicted before this Tribunal for some crimes
17 committed in Jablanica. Then we have paragraph 1056, where the
18 Trial Chamber states that in the report by the staff, 6D1239, the case of
19 finding bodies of unidentified civilians were found which is completely
20 contrary to the original exhibit, where it states that in the area of
21 action by Siptar terrorist forces unidentified bodies of men were found
22 and that the investigating judge was informed about it. So the Chamber
23 omitted the main indicator, the area of action by the Siptar terrorist
24 forces which qualifies Lukic's knowledge as to the bodies being of
25 casualties of battle. Furthermore, this qualifier, unidentified men, is
1 changed, and it says that these were bodies of civilians.
2 In Volume III, paragraph 1054, the Chamber states that in 6D808
3 says that records were being maintained about the number of Albanians
4 leaving Kosovo. The Trial Chamber thereby wishes to show that this
5 notification was, in essence, discriminatory in relation to Albanians --
6 actually, quite to the contrary. If you read the document you can see
7 that it is seeking various data. Among other things, it requests
8 information about persons of Albanian and other ethnic communities who
9 have fled from Kosovo.
10 JUDGE LIU: Well, Mr. Lukic, I believe that the time allocated to
11 your submission is up.
12 MR. LUKIC: If that is so, then I just need one minute to thank
13 Your Honours.
14 JUDGE LIU: Yes, yes, please.
15 MR. LUKIC: [Interpretation] Due to all of the above stated in our
16 appeal and in response of the appeal by the Prosecutor as well as all
17 that we said today in our oral submissions, we would ask the
18 Appeals Chamber to issue an acquittal of our client. We would like to
19 thank the Chamber for listening to us, for taking into account our
20 reasons and for reviewing them, and we hope that you would correct the
21 errors that we pointed to and that you would hand down an acquittal on
22 the basis of our submissions today. Thank you.
23 JUDGE LIU: Thank you very much.
24 Just one thing I would like to seek some clarification from you,
25 that is on page 47, line 5, you are talking about a case of the
1 identified bodies of the civilians. Well, I wonder whether that is the
2 case concerning the 287 individuals who were murdered in Djakovica
4 MR. LUKIC: Sorry, maybe I mispronounced, it's Jablanica, not
6 JUDGE LIU: Thank you very much.
7 MR. LUKIC: Thank you, Your Honour.
8 JUDGE LIU: Yes, Judge T has a question.
9 MR. LUKIC: Sorry, I already sat down. Yes.
10 JUDGE TUZMUKHAMEDOV: You can stand up any time or sit down any
11 time. I would like to refer you to your brief rather to something --
12 with -- part of your brief which was left out of the oral presentation
13 today, and this is the part where you refer to documents underlying
14 Exhibit 6D614 and the brief claims that those documents were of critical
15 nature. And if you could explain what exactly those documents were. Are
16 you with me, counsel?
17 MR. LUKIC: Yes, I am, but I think that my co-counsel will answer
18 your question.
19 JUDGE TUZMUKHAMEDOV: I think so. I think that's more
20 appropriate for him to answer because this refers to his portion of the
22 MR. LUKIC: Thank you, Your Honour.
23 JUDGE TUZMUKHAMEDOV: So I would like to know what exactly those
24 documents were, and why, in your opinion, are they so critical to your
25 defence? And you also claim in your brief that by not admitting, by
1 denying those documents, the Trial Chamber made an error. So if you
2 could also elaborate on that error that allegedly in your opinion was
3 committed by the Trial Chamber. Thank you.
4 MR. IVETIC: Thank you, Your Honour. I will gladly address that
5 and I thank you for your question. 6D614 was a compendium. It was part
6 of this dossier of documents that Sreten Lukic as head of the MUP after
7 the war asked for all the documents to be collected, evidencing crimes
8 that occurred and evidencing all the evidence that the authorities had
9 collected to assist in prosecutions. 6D614 categorises the documentation
10 and demonstrates that the crimes that were being committed were being
11 investigated by the authorities and were being then prepared for
12 prosecution, and it shows that during the time-period of the NATO bombing
13 of Kosovo, the Serbian MUP, in fact, did investigate, did name and
14 apprehend members of the police, members of the army, and members of
15 the -- regular citizens who had committed crimes, including crimes
16 against Albanians. The underlying documents -- 6D614 was a summary. The
17 underlying documents would be the original base documents collected from
18 all the various secretariats of the interior on the territory of Kosovo
19 as part of this project that was spear-headed by our client. And it
20 shows, first of all, that with regards to the notice requirements, the
21 notice that would be available to our client was that the authorities,
22 the MUP, were doing their job, they were policing, they were
23 investigating crimes irrespective of who the victims were, irrespective
24 of who the alleged perpetrators were, and were doing their best to
25 collect evidence to assist in the prosecution of these individuals.
1 The -- we had witnesses who testified as to the creation of
2 6D614, and as to the base of materials that were used, the Trial Chamber
3 only permitted us to include references from 6D614 where witnesses we
4 brought had personal knowledge about specific items in the summary rather
5 than allowing us to present documentary evidence that would show the
6 entirety of the situation, which we believe would have shown a different
7 picture. And again, with the limitation imposed on the number of hours
8 and number of witnesses we could bring, we could not bring witnesses who
9 had personal knowledge of each and every single incident that was
10 investigated in Kosovo during the time-period of the NATO bombings. And
11 I think that is the critical point of the error.
12 JUDGE TUZMUKHAMEDOV: Thank you.
13 MR. IVETIC: Thank you.
14 JUDGE LIU: I see no more questions from the Bench. And thank
15 you very much, Mr. Lukic.
16 Now we would like to hear the response from the Prosecution.
17 MS. KRAVETZ: Thank you, Your Honour and good morning or good
19 General Lukic was an important member of the JCE. As head of the
20 MUP staff he commanded MUP forces which committed crimes on a massive
21 scale in Kosovo in 1999. He planned and co-ordinated the engagement of
22 MUP forces in joint operations with the VJ throughout the province, which
23 resulted in the crimes charged in this case. Based on this and other
24 evidence, the Chamber correctly found that Lukic made a significant
25 contribution to the JCE and that he shared the intent of his fellow JCE
1 members, Pavkovic and Sainovic.
2 In our submissions this morning, my colleague, Mr. Wood, and I
3 will be addressing Your Honours' questions regarding the actus reus and
4 mens rea requirement for JCE liability. I will be dealing with your
5 question ten and specifically with the actus reus requirement for JCE I
6 and I will also be addressing Your Honours' question regarding Lukic's
7 involvement in the disarming process. My colleague, Mr. Wood, will be
8 addressing Your Honours' questions regarding the mens rea requirement for
9 JCE I and III as these relate to Lukic. And we will be dealing with some
10 of the issues raised today by my colleagues from the Defence in relation
11 to these questions.
12 For all other matters that have been raised, we rest on our
13 written submissions. But before I turn to addressing our response to
14 Your Honours' question, a brief comment on the standard of review and
15 Lukic's appeal. It is our position, Your Honour, that Lukic has not
16 assisted the appeal process by his appeal brief, by his reply brief, or
17 by his submissions here today. As we have indicated in more detail in
18 our response brief, many of the issues he raises are, in fact, arguments
19 he raised at trial which the Chamber expressly considered and rejected in
20 its judgement. In doing so, he fails to show that the Chamber erred.
21 Lukic merely picks and chooses his way through the evidence, but ignores
22 the totality of the evidence that was considered by the Trial Chamber.
23 He also highlights irrelevant findings in isolation, and I will return to
24 this point later in my submissions.
25 In addition, Lukic misinterprets the judgement and he has done so
1 in his appeal brief and also this morning in submissions. One example is
2 the reference we heard this morning from my colleagues to paragraph 1049
3 of Volume III of the judgement. The Lukic team suggested that in this
4 paragraph the Chamber concluded that Lukic had no disciplinary powers
5 against members of the MUP. In fact, that's not what the relevant
6 paragraph, paragraph 1049, says. What the Chamber found, in fact, was
7 that instructions given by Lukic in August of 1998 and February 1999
8 indicate that he had de facto authority to require the chiefs of the
9 SUPs, or secretariats of internal affairs, to conduct investigation into
10 crimes, even if he was not the one who actually initiated proceedings.
11 So that is a very different finding than what has been indicated by my
12 colleagues this morning.
13 Lukic's appeal brief illustrates a misunderstanding of the
14 Tribunal's standard of review. It also reveals a misunderstanding of the
15 Trial Chamber's findings and judgement. This is not a case of a failure
16 to deal with evidence, as Lukic suggests. In this case, not only did the
17 Chamber consider the evidence carefully, but it also considered the
18 submissions made by Lukic at trial carefully, provided reasoned opinions
19 on its findings, and supported its conclusions with a summary discussion
20 of the evidence. Lukic fails to show that the Chamber's findings he
21 disagrees with or which he claims are untrue were unreasonable. His
22 appeal simply does not meet the standard of review and should be
23 dismissed in its entirety.
24 I turn now to Your Honours' question number ten, and I will read
25 it out for the record:
1 "Discuss, as a legal matter, as well as with respect to the
2 particular Trial Chamber's findings for each appellant convicted for
3 JCE I, whether the actus reus and mens rea of a JCE member may be
4 fulfilled prior to the existence of the common purpose ..."
5 Your Honours already heard on Monday submissions from my
6 colleague, Ms. Martin Salgado, in relation to our position on the legal
7 matter, and I note that I will only be addressing the actus reus
8 component of this question, as my colleague will be addressing the
9 mens rea component.
10 On the facts, we understand the Appeals Chamber to be asking
11 whether Lukic was found to have contributed to the JCE prior to the
12 existence of the common purpose. The answer to this question is no.
13 Lukic's contribution is grounded on conduct that occurred during
14 the period in which the crimes were committed. As head of the MUP staff,
15 Lukic made a significant contribution to the JCE by planning, organising,
16 and controlling MUP units and by co-ordinating joint actions with the VJ
17 throughout the period in which the crimes were committed.
18 In the months preceding the 1999 campaign with which this case is
19 concerned, Lukic began to make preparations which laid the groundwork for
20 the implementation of the common purpose. This preparatory work,
21 included the arming of the non-Albanian population and the disarming of
22 the Albanian population. This conduct also forms part of his
23 contribution to the JCE, as it was carried out for the purpose of
24 implementing the criminal plan.
25 I intend to elaborate on this answer by explaining how Lukic
1 contributed to the JCE and why his contribution was significant, and I
2 will deal with two issues: First, Lukic's role as head of the MUP staff;
3 and second, his contribution during the period when the crimes were
4 committed, and in doing so I will address Your Honours' question
5 regarding his involvement in the disarming process.
6 Turning first to Lukic's role as head of the MUP staff. The
7 Chamber found that Lukic held this position from mid-June 1998 to
8 June 1999; this is Volume III, paragraphs 945 through 1050. The MUP
9 staff was the entity in charge of planning, organising, controlling and
10 directing the work of MUP forces in Kosovo, Volume III, paragraph 1012.
11 It was based in Pristina.
12 The Chamber correctly found that as head of the MUP staff, Lukic
13 was the de jure and de facto commander of MUP forces deployed in Kosovo,
14 including those units involved in combat activities; this is Volume III,
15 paragraph 1131. In this capacity Lukic was directly involved in the
16 planning process and he was also the person responsible for the use and
17 engagement of MUP forces in the province, Volume III, paragraphs 1118 --
18 JUDGE LIU: Excuse me, it seems that we have a technical problem.
19 Judge Ramaroson has no translation.
20 Is that soft? Everything's okay. Yes. I'm sorry about that.
21 You may proceed.
22 MS. KRAVETZ: No problem, Your Honour, I'll continue.
23 I was referring to Lukic's role as head of the MUP staff. And I
24 mentioned that in this capacity he was directly involved in the planning
25 process and he was also the person responsible for the use and engagement
1 of MUP forces in the province; and this is Volume III, paragraph 1051,
2 1118 and 1131. He was also the person responsible for ensuring that the
3 day-to-day operations of MUP forces in Kosovo were conducted in
4 accordance with the overall plans and policies set by the MUP leadership
5 in Belgrade and by Milosevic, Volume III, paragraph 1131. And he
6 co-ordinated and planned joint operations with the VJ, in particular with
7 his counterpart in the VJ, General Pavkovic, which took place from
8 March 1999 onwards, Volume III, paragraph 1118 and 1132.
9 If I can respond briefly to my colleagues' submissions this
10 morning regarding the Chamber's findings on Lukic's role and authority.
11 From having heard their submissions today, what is apparent is that
12 nothing has changed. At trial Lukic argued that he was a general in the
13 police with no authority over MUP units in Kosovo and that he was the
14 head of a weak body called the MUP staff. However, the Chamber's
15 findings that I have just outlined are based on a careful assessment of
16 the evidence on the role and authority of the MUP staff which can be
17 found at paragraphs 947 and -- through 1051 of Volume III.
18 One of the pieces of evidence the Chamber considered was Lukic's
19 own explanation of his role and responsibilities. He was, in fact, the
20 person best placed to explain the role of the MUP staff, and in
21 Volume III, paragraph 1013, the Chamber referred to his explanation in
22 his interview with Prosecution officials in which he explained that the
23 role of the MUP staff was to co-ordinate, plan, and direct MUP
24 organisational units primarily in the task of curbing terrorism.
25 In that same paragraph the Chamber also referred to Lukic's role
1 vis-a-vis special police units, which are referred to as PJPs in the
2 judgement, and it noted that Lukic himself said that these units had dual
3 responsibility towards Obrad Stevanovic and also responded to the MUP
5 In addition, the Chamber noted that in promoting or recommending
6 Lukic for promotion, MUP Minister Stojiljkovic commended him for his
7 command -- successful command and control of MUP units engaged in the
8 prevention of terrorism in Kosovo, and MUP Minister Stojiljkovic clearly
9 knew and had a clear impression of what were the roles and
10 responsibilities of General Lukic in Kosovo.
11 By challenging the Trial Chamber's findings on his role and
12 authority on appeal, Lukic merely repeats his trial submissions without
13 showing how the Chamber erred. His challenges on this point should be
15 I turn now to Lukic's contribution to the JCE and I will deal
16 first with his involvement in the planning and co-ordination of MUP
17 operations and then turn to his role in the arming and disarming process.
18 Lukic was actively involved in the planning and co-ordination of
19 MUP operations during the 1999 campaign, paragraphs 1131 and 1132 of
20 Volume III. The Chamber found that the NATO bombing provided JCE members
21 with an opportunity - for which they had been waiting and preparing - to
22 carry out the common plan, Volume III, paragraph 92. That the MUP was
23 preparing for a large-scale offensive in the spring of 1999 is evidenced
24 by discussions at the MUP staff on 17th February 1999, and this meeting
25 at the MUP staff is discussed in Volume III, paragraph 996. On that
1 date, Lukic chaired a meeting which was attended by the highest MUP
2 leadership from Belgrade, MUP Minister Stojiljkovic, the heads of both
3 branches of the MUP, Vlastimir Djordjevic and Radomir Markovic as well as
4 by assistant minister Obrad Stevanovic and by MUP commanders in Kosovo.
5 And if we could have slide one up on the screen.
6 Up on the screen we have the minutes of this meeting which are
7 discussed in Volume III, paragraph 996, and we see - and these are words
8 of Lukic that are highlighted at the top of the page - we see that Lukic
9 sets out the situation in Kosovo and he reports on plans of the MUP staff
10 to carry out three mopping-up operations in the areas which are described
11 in the slide and he also refers to the personnel that has been allotted
12 for these operations.
13 In addition, he reports that a meeting of the MUP staff will be
14 held in the coming days with all commanders of police unit detachments
15 for further consultation about their engagement. And if we could have
16 slide two up on the screen.
17 At this same meeting MUP Minister Stojiljkovic addressed those
18 present, and in his conclusions referring to an eventual attack by NATO
19 he said:
20 "Within two or three days of an attack, we have to put our plans
21 in motion and use the time to clear the territory from terrorists."
22 And the minutes of this meeting are Exhibit P1990 and these
23 comments are on page 3, and he continued by setting out the forthcoming
24 tasks as we see on the slide at the bottom. We can remove the slide.
25 The Chamber found that the areas identified by Lukic at the
1 17th February 1999 meeting for these actions were the same ones envisaged
2 by Lazarevic's Grom 3 order of 16th February 1999, confirming joint
3 planning and co-ordination between the VJ and MUP leadership; and this is
4 Volume I, paragraphs 1015 and 1039.
5 The large-scale plans which the VJ and the MUP prepared in
6 February 1999 were implemented down both chains of command in late
7 March 1999 through a series of Joint Command orders, Volume I,
8 paragraph 1017.
9 During the implementation of these operations, Lukic worked
10 closely with Joint Command members Pavkovic and Sainovic in co-ordinating
11 the actions of the MUP and the VJ, Volume III, paragraphs 1118 and 1132.
12 These joint MUP and VJ operations could not have taken place without the
13 direct involvement of Lukic, head of the MUP staff. Using the MUP staff,
14 Lukic implemented the decisions and tasks of the Joint Command involving
15 MUP units down the MUP chain of command, and this is Volume I,
16 paragraphs 1033 through 1042; and Volume III, paragraphs 973 to 975 and
17 1132. Lukic's role was to ensure the participation of MUP units in joint
18 operations, Volume III, paragraph 1118 and 1132. This is why the Chamber
19 found Lukic to be an important member of the JCE, Volume III,
20 paragraph 1131.
21 As Mr. Kremer explained on Monday, the joint MUP and VJ
22 operations which took place from late March onwards resulted in a
23 campaign of terror and violence against the Kosovo Albanian population.
24 Throughout the duration of this campaign, Lukic was on the ground
25 in Pristina and this allowed him to monitor MUP activities closely, and
1 for reference, Your Honours, Volume III, paragraphs 999 to 1001, 1004,
2 1006, 1009 and 1010, and paragraph 1040. Lukic's constant presence on
3 the ground also made him aware of the ill-treatment and the forcible
4 displacement of scores of civilians by Serb forces, Volume III,
5 paragraph 1124.
6 The MUP and VJ operations continued into April and May 1999.
7 Lukic's interventions at MUP staff meetings and his instructions to MUP
8 commanders during this period demonstrate that he actively supervised
9 these operations, and for the detail I refer Your Honours to Volume III,
10 paragraphs 999 to 1011.
11 Together with VJ forces, MUP units, which Lukic commanded,
12 executed the JCE's plan with brutal efficiency, displacing over 700.000
13 Kosovo Albanian civilians in a span of two months. VJ and MUP units
14 acted with a high degree of co-ordination in expelling the
15 Kosovo Albanian population, and this is in Volume I, paragraphs 1033 to
16 1043. Despite his knowledge of the systematic nature of the crimes,
17 Lukic continued to engage MUP units in joint operations with the VJ
18 during the 1999 campaign, clearly intending for these crimes to take
19 place, Volume III, paragraph 1129.
20 I turn now to Lukic's role in the arming of non-Albanian
22 Yes, Your Honour.
23 JUDGE LIU: Well, I believe that you are talking about arming and
24 disarming together. When you discuss Mr. Lukic's involvement in
25 disarming, would you please point out the specific paragraph in the
1 judgement as well as the specific evidence admitted during the trial
2 related to this issue. Thank you.
3 MS. KRAVETZ: Yes, Your Honour. I intend to do that.
4 So turning first to Lukic's role in the arming process and I will
5 later deal with the disarming well. Months in advance of the 1999
6 campaign, Lukic armed, trained, and organised non-Albanian civilians.
7 Lukic then used armed locals during the attacks that took place from
8 March 1999 onwards.
9 As my colleague Mr. Menon explained on Tuesday, between July 1998
10 and March 1999, the non-Albanian population in Kosovo was armed and
11 organised into so-called RPOs, or local defence units; this is Volume I,
12 paragraph 787. The Chamber found that these units were under the general
13 command and control of the MUP and of Lukic, Volume I, paragraph 777; and
14 Volume III, paragraph 1067. And Lukic's involvement in the arming
15 process throughout this period is discussed in Volume III,
16 paragraphs 1061 through 1067.
17 Now my colleagues this morning have referred to the arming
18 process and have characterised it as a legal distribution of weapons and
19 they've characterised the disarming as a voluntary surrender of illegal
20 weapons. The Chamber, in fact, considered the legality of the arming
21 process, but it noted that the primary issue in relation to both the
22 arming and the disarming was the fact that it was carried out upon ethnic
23 lines and the Chamber's findings were -- that sum up its analysis are in
24 Volume III, paragraph 72. And what does this mean that it was carried
25 out on ethnic lines? The Chamber found that weapons were distributed to
1 only one ethnic group, these are non-Albanians, primarily Serbs; and that
2 the majority of the Serb population was provided with weapons. It also
3 found that the disarming only targeted ethnic Albanians and that the
4 majority of the non-Albanian [sic] population was not part of the KLA.
5 An additional factor the Chamber considered was the secrecy of the
6 process, and my colleague this morning has characterised the arming as a
7 public process that was -- that everyone was aware of.
8 In paragraph 65 of Volume III, the Chamber pointed to some
9 comments made by Lukic himself in relation to the arming process and
10 these are comments made at a 2 November 1998 meeting. At this meeting,
11 Lukic directed SUP chiefs and MUP commanders to conceal the fact that the
12 Serb population had been armed from KVM verifiers. And, in addition, he
13 instructed those present that armed Serbs were to be directed to deny
14 that Serbs were armed in the villages if asked by KVM members and to use
15 the excuse that only members of village guards were armed. Clearly, by
16 making these remarks, Lukic himself did not consider the fact that the
17 armed population had been armed as a public process, as the Lukic Defence
19 At the 17th February meeting which I've discussed when
20 preparations were made for a large-scale offensive, Lukic reported that
21 members of the staff had held meetings with all RPOs and that RPOs in
22 nearly all villages inhabited by Serbs were active and this is P1990,
23 page 1, and it's the same exhibit that we saw earlier on a slide.
24 When the 1999 campaign commenced, Lukic used armed locals in
25 operations. His interventions at MUP staff meetings in April and
1 May 1999 confirm the involvement of RPOs in these operations, Volume III,
2 paragraph 1066. And as Your Honours have heard from my colleagues
3 earlier this week, in Volume II of its judgement, the Chamber found that
4 in some municipalities armed locals did, in fact, take part in actions
5 with the MUP and the VJ aimed at expelling Kosovo Albanian civilians from
6 their homes, Volume III [sic], paragraph 48, 432, 888, and 944.
7 I turn now to the disarming of the ethnic Albanian population and
8 at the break I distributed a table and I ask that it be provided to the
9 Bench. And while that is being done, just a correction for the record,
10 the references I just gave regarding volume -- it should state
11 "Volume II" instead of "Volume III." I note that at line 14 of page 62
12 the transcript incorrectly notes "Volume III," and it's probably because
13 I misspoke.
14 Turning to the disarming of ethnic Albanians, just as he had been
15 involved in the arming process, Lukic also participated in disarming the
16 Kosovo Albanian population, and this finding is at Volume III,
17 paragraph 1121. By disarming ethnic Albanians in the months preceding
18 the 1999 campaign, Lukic rendered them defenceless to the Serb attacks
19 that took place from late March 1999 onwards.
20 Now, Your Honours have asked a question regarding Lukic's
21 involvement in the disarming process and before I address it I will just
22 read it out for the record. The question is:
23 "Discuss evidence on the record, if any, showing Lukic's
24 involvement in the disarming of the Kosovo Albanian population."
25 The Chamber's finding that Lukic participated in the disarming
1 process is supported by Joint Command documents on the record. These
2 documents show that MUP units under Lukic's command carried out the
3 disarming in 1998 and that he monitored this process closely.
4 Now, Your Honours have been handed a table of exhibits relating
5 to Lukic's involvement in the disarming process and I ask you to turn to
6 this table. It has several categories of exhibits and I plan to deal
7 with them briefly. The first category of exhibits on this table are 11
8 excerpts from P1468, which are the notes of meetings of the Joint Command
9 and these are all contained on page 1 of the table. And contrary to my
10 submission of the Defence -- to the submissions of the Defence, these
11 excerpts show that in the period between August and October 1998, Lukic
12 provided regular updates of the disarming of ethnic Albanian villages
13 being carried out by MUP units. And if I can take Your Honours to one of
14 these excerpts as an example and this is the one dated
15 10th September 1998, and it's towards the middle of the page. And the
16 relevant reference is P1468, page 100. I note that this excerpt is
17 referred to in Volume III, paragraph 1029.
18 We can see from the relevant excerpt on this table that Lukic
19 reports about the disarming of six ethnic Albanian villages, and he
21 "But it's not enough and it continues tomorrow ..."
22 I should note for clarity, Your Honours, that in paragraph 1029
23 this meeting of -- that Lukic -- at which Lukic is reporting this
24 information is incorrectly dated as 1st September 1998 and it should be
25 10th September.
1 I will not deal with the remaining excerpts from P1468, but I
2 will read all the relevant page numbers out for the record. And the
3 relevant references from this exhibit are: P1468, pages 48, 49, 52, 77,
4 92, 97, 100, 106, 110, 131, and 139.
5 Turning to the second category of documents on this table, these
6 are Joint Command operative reports from the period of October and
7 November 1998, and these are listed on both sides of the table that has
8 been provided to Your Honours. These reports show that MUP units were
9 actively engaged in disarming ethnic Albanian villages and that this
10 disarming process was to continue. And if I can take Your Honours to one
11 example and this is the second one from the bottom of page 1, and it's
12 the reference -- exhibit reference is P1203, and it's dated
13 15th October 1998. And this document is referred to in Volume III,
14 paragraph 58 of the judgement.
15 We see here in the excerpt on the table that under the heading
16 number III (b) engagement of MUP units, the -- IV refers to the fact that
17 MUP units are collecting weapons from Siptar or ethnic Albanian villages
18 which have shown a willingness to surrender them. And under the heading
19 IV, proposal for further engagements of the MUP, the report notes that
20 this collection of weapons will continue.
21 I won't refer to all the different Joint Command operational
22 reports on this table, but I will read them -- the relevant exhibit
23 numbers and page numbers out for the record. The relevant references are
24 P1203, pages 5 and 8; P1206, pages 4 and 7; P1204, pages 5 and 7; P1197,
25 pages 3 and 6; and P1198, pages 4 and 6.
1 The last exhibit on this table that I want to refer to is on
2 page 2, and if I can ask Your Honours to turn to that, this is P2166, and
3 it's an exhibit dated 29th October 1998. And in this exhibit is a record
4 of a meeting that took place in Belgrade on that date and it's referred
5 to in the Trial Chamber's judgement Volume I, paragraph 997, and it's
6 also referred to in Volume I, paragraphs 1097 to 1195.
7 Now, this meeting was attended, as the minutes show, by the
8 highest Serb political military and police leadership. All three JCE
9 members in this case were in attendance. And the excerpt we have on the
10 table is a report that is provided by General Pavkovic at this meeting,
11 where he presented an overview of the plan for the suppression of
12 terrorism which was implemented in the summer of 1998. And as we can see
13 from this excerpt, one of the tasks that General Pavkovic notes formed
14 part of this plan was number 7, disarming all Siptar or Albanian villages
15 which are known to be armed.
16 If I can state -- continue discussing this meeting but ask that
17 we turn to the next slide. What we have on the screen is a copy of the
18 same exhibit, P2166, and this is a continuation of Pavkovic's comments --
19 remarks at that meeting. And on pages 4 and 5 he provides a more
20 detailed overview of the implementation of the plan. On page 5 - and
21 this is the portion that's been highlighted - he -- under number 8 he
22 refers to the weapons collected and the localities from where these
23 weapons have been collected. And if I can draw Your Honours' attention
24 to the portion that appears in red on the screen and I'll read the quote.
25 It says:
1 "Sixty-six villages still need to be disarmed and some 4.000 to
2 5.000 guns will be seized. The villages did not take part in the
3 terrorist operations."
4 Now, my colleagues today have suggested that the disarming
5 process mainly targeted KLA villages and that it was voluntary; however,
6 what these remarks show is that villages which did not take part in
7 terrorist operations were also disarmed by the MUP.
8 In response to Your Honours' question on Lukic's involvement in
9 the disarming, these are the relevant references on the record,
10 Your Honour.
11 JUDGE LIU: Thank you.
12 MS. KRAVETZ: To conclude and returning to question number 10,
13 having planned and co-ordinated MUP operations, including joint
14 operations with the VJ, which led to the commissions of the crimes
15 charged, Lukic made a significant contribution to the JCE.
16 Moreover, his contribution is grounded on conduct that occurred
17 during the period in which the crimes were perpetrated. It is clear from
18 the evidence I've discussed that Lukic was also actively involved in
19 preparing for the implementation of the criminal plan and that the
20 preparatory work he engaged in furthered the common purpose. For the
21 reasons I've outlined, the Defence's challenges to the Chamber's findings
22 on Lukic's contribution to the JCE should therefore be dismissed.
23 Those are our submissions, Your Honours, in relation to the two
24 questions that I was addressing, the actus reus question and also the
25 disarming -- question dealing with Lukic's involvement in the disarming
1 process. Unless Your Honours have questions for me, I will yield the
2 floor to my colleague, Mr. Wood -- oh, we're having a break, I'm told.
3 JUDGE LIU: Judge T has a question to ask you.
4 MS. KRAVETZ: Yes.
5 JUDGE TUZMUKHAMEDOV: Thank you. Ms. Kravetz, counsel, I'm here.
6 MS. KRAVETZ: I can't see you behind the pillar but I'll move
8 JUDGE TUZMUKHAMEDOV: It is a very important pillar.
9 MS. KRAVETZ: It is. It is.
10 JUDGE TUZMUKHAMEDOV: You referred to in your presentation -- I
11 should have asked this earlier but I just didn't want to interrupt you.
12 You referred in your presentation - as did your colleagues on your side
13 of the aisle during the course of this week - to the displacement of over
14 700.000 Kosovo Albanians through a campaign of terror and violence.
15 Could you identify where in the trial judgement the Chamber found that
16 this displacement was entirely attributable to that campaign.
17 To put it differently, did the Trial Chamber specifically exclude
18 the possibility that other factors during the war may have contributed to
19 the displacement of at least a portion of those over 700.000 humans?
20 Thank you.
21 MS. KRAVETZ: Thank you, Your Honour. Well, the Chamber
22 conducted a very thorough analysis of the -- of what the evidence of what
23 happened on the ground, and this is contained in Volume II of the
24 judgement. And it is based on that analysis of the crimes that happened
25 and the reasons that were provided by the persons in the different
1 localities that were expelled by Serb forces that it reached its findings
2 which were referred to earlier this week by my colleague, Mr. Kremer, on
3 the pattern of crimes. And the Chamber noted, when it was dealing with
4 the pattern of crimes, that none of the witnesses who testified who came
5 from 13 different municipalities in Kosovo and from all sorts of walks of
6 life, none of them indicated that they had left because of the NATO
7 bombing or because they were forced by the KLA. They clearly noted that
8 they had been forcibly expelled from their homes by MUP and VJ forces and
9 other forces acting together with these forces. So the Chamber's finding
10 that this was the reason for the displacement is based on this analysis
11 of the evidence. And the Chamber did consider whether NATO was the cause
12 of the displacement or whether the KLA campaign was the cause of the
13 displacement, but except for two localities where the Chamber did find
14 that KLA members had told villagers to flee before Serb forces arrived,
15 in the remaining of the localities this was not the reason why the
16 population left en masse and headed towards the border. I don't know if
17 that answers Your Honour's question.
18 JUDGE TUZMUKHAMEDOV: Yes, as posed it does. Thank you.
19 MS. KRAVETZ: Thank you.
20 JUDGE LIU: Well, we still have less than four minutes to go in
21 the morning sitting, so I'm in your hands whether you would like to
22 continue your response for the last four minutes or we'll resume in this
23 afternoon's session, and in this way I can assure you that I'll make up
24 for the time you lost for this morning's session.
25 MS. KRAVETZ: Your Honour, my suggestion would be to break at
1 this time, and that way my colleague, Mr. Wood, can just go through his
2 submissions without any interruptions.
3 JUDGE LIU: It's a wise choice.
4 MS. KRAVETZ: Thank you.
5 JUDGE LIU: Thank you.
6 We are adjourned until 2.30 this afternoon.
7 --- Luncheon recess taken at 12.56 p.m.
8 --- On resuming at 2.29 p.m.
9 JUDGE LIU: Good afternoon.
10 Mr. Wood, you may continue the response of the Prosecution.
11 MR. WOOD: Thank you, Mr. President.
12 As Ms. Kravetz told you this morning, I'll be dealing with
13 Your Honours' questions with regard to General Lukic's mens rea. That
14 means with regard to the questions I'll be answering Your Honours' eighth
15 and 11th questions and the mens rea component of the tenth question.
16 I'll also address a few smaller points today raised by counsel for
17 General Lukic and their remarks.
18 Now, before I start, though, Your Honours I'd like to provide
19 some citations in support of Ms. Kravetz' response to the last question
20 before the break to show that the Chamber found that the campaign of
21 terror and violence resulted in the forcible displacement of 700.000
22 Kosovo Albanian civilians. And for the record those are Volume II,
23 paragraphs 1150 and 1175 to 78 [sic]; and Volume III, paragraphs 45, 95,
24 and 1173.
25 So turning to the questions then, starting with the tenth
1 question, and I think Mr. Ivetic may have referred to that as the third
2 question. Just for the sake of the record, Your Honour, that's the one
3 I'll be addressing. Now, I note that you've heard this question answered
4 twice now by Prosecution counsel, Your Honours, first by
5 Ms. Martin Salgado and by Ms. Monchy on Monday and by Mr. Schneider on
6 Tuesday. It won't surprise you to hear that my answer today is the same.
7 Though the mens rea of a JCE member cannot be fulfilled prior to the
8 existence of the common purpose of the joint criminal enterprise, it can
9 be inferred from his knowledge of crimes committed before the joint
10 criminal enterprise came into existence.
11 As Ms. Martin Salgado explained and contrary to counsel's remarks
12 this morning, support for this as a matter of law can be found in the
13 Krajisnik appeal judgement at paragraphs 200 to 204 and the Krajisnik
14 trial judgement at paragraphs 925 and 929.
15 So what does this mean for General Lukic's case? As the Chamber
16 properly found, General Lukic's JCE intent is clear from his knowledge of
17 crimes and continuing participation in the campaign of terror and
18 violence starting in March 1999 and it can be properly inferred from his
19 detailed knowledge of crimes committed by his MUP subordinates in 1998
20 and by other evidence.
21 Now, I'll elaborate that -- on that more, Your Honours, in
22 answering the 11th question which I think was referred to by my colleague
23 across the aisle as the fourth question. And for the record since this
24 is the first time this has been dealt with by the Prosecution today I'll
25 read that question into the record, that is:
1 "Discuss whether and under what circumstances the mens rea under
2 JCE I for deportation and other inhumane acts (forcible transfer) may be
3 inferred from the accused's knowledge of crimes committed in 1998,
4 including crimes other than deportation and other inhumane acts."
5 Now, again, Your Honours, as Ms. Martin Salgado has explained on
6 Monday, the Chamber can draw such an inference. And under the
7 circumstances of General Lukic's case, this is the only reasonable
8 conclusion on the totality of the evidence from both 1998 and 1999 as the
9 Trial Chamber properly found in paragraphs 1117 through 1130 of
10 Volume III of the trial judgement.
11 In short, Your Honours, because General Lukic was aware that
12 various crimes arising from joint MUP-VJ operations resulted in massive
13 displacements in 1998, he knew that he could use the same types of
14 operations, using the same troops targeting the same ethnic group to
15 achieve the same result in 1999. The fact that he continued to work to
16 ensure the co-operation of the joint MUP-VJ operations throughout 1999
17 leads to the reasonable inference that he intended the massive forcible
18 displacements starting on 24 March 1999.
19 So what did General Lukic know in 1998? Like my colleagues who
20 argued the Pavkovic and Lazarevic's responses, I've created a table to
21 summarise this evidence for Your Honours' reference, and I think that's
22 been distributed or is about to be. And again, as with my colleagues who
23 argued the responses for Pavkovic and Lazarevic, this is for
24 Your Honours' reference. I'll refer to only a few of those during my
25 remarks today.
1 The Chamber found that General Lukic knew that there were serious
2 allegations of criminal activity by MUP forces in Kosovo directed against
3 the Kosovo Albanian population. Now, that's the Chamber's finding at
4 Volume III, paragraph 1086. He knew that these crimes - and these crimes
5 included arson, murder, and forcible displacement - arose out of joint
6 MUP-VJ operations that he helped to co-ordinate, that's Volume III,
7 paragraphs 1012 and 1080 through 1084.
8 For example, acts of arson were regularly discussed at
9 Joint Command meetings that Lukic attended, including on 7 and
10 12 August 1998, and I refer Your Honours to Volume III, para 1080 for
11 that finding.
12 Further, Lukic was also informed by members of the international
13 community about instances of arson and other crimes. For example,
14 international monitor Shaun Byrnes told Lukic that in August and
15 September 1998 his team observed on an almost daily basis police units
16 burning villages, destroying crops, killing farm animals, intimidating
17 Kosovo Albanian citizens, and driving them from their homes; that's
18 Volume III, paragraph 1082.
19 Now, Lukic also learned in September 1998 of the murders
20 committed in the area of Donje and Gornje Obrinje, and that they resulted
21 from joint MUP-VJ operations, that Lukic, as head of the MUP staff, was
22 helping to co-ordinate and plan; that's Volume III, 1021, 1081.
23 Now specifically, Your Honours, this incident was discussed at a
24 Joint Command meeting that Lukic attended on 4 October 1998; that's at
25 Volume III, para 1081. Also as my colleague across the aisle mentioned
1 this morning in his remarks, Human Rights Watch published a detailed
2 report about this incident. He is right it came out in 1999, it came out
3 in February 1999, that is before the crimes in the indictment and during
4 the same month the MUP was involved in planning the campaign, as
5 Ms. Kravetz has explained this morning. This report was distributed to
6 the MUP as well as to the Presidency of Serbia, the Federal Presidency of
7 Yugoslavia, the republican and federal ministries of justice, and to the
8 VJ. It was also given to Serbian and Albanian-language media in Kosovo.
9 Critically, Your Honours, Lukic knew that these crimes were
10 driving hundreds of thousands Kosovo Albanians from their homes. On
11 September 23rd, 1998, for example, the Security Council noted that it was
12 "gravely concerned" about "the excessive and indiscriminate use of force
13 by Serbian security forces and the Yugoslav army," which according to the
14 Secretary-General's estimates had resulted in the displacement of more
15 than 230.000 persons from their homes. That's at Volume I, para 916;
16 that's also at Volume III, paragraph 443 and at 677. The Chamber found
17 that Lukic was aware of these allegations; that's at Volume III,
18 paragraph 1120. He was present at a Joint Command meeting in which this
19 resolution was discussed; that's Volume III, para 677.
20 Based on the events of 1998 then, Lukic knew that he could count
21 on the joint MUP-VJ operations to expel hundreds of thousands more
22 Kosovo Albanians from their homes in 1999. That he continued to
23 co-ordinate these same operations using these same troops to execute the
24 campaign of terror and violence in 1999, the campaign at the heart of
25 this JCE, Your Honours, shows that he intended to achieve the same
1 results: The massive displacement and forcible transfer of
2 Kosovo Albanians.
3 Now, to be clear, Your Honours, contrary to the submission of my
4 learned colleagues this morning, the Chamber did not rely solely on
5 evidence from 1998 to determine Lukic's intent in 1999. In concluding
6 that Lukic shared the common criminal purpose of the joint criminal
7 enterprise, the Chamber relied on the totality of the evidence, including
8 his continuing MUP-VJ crimes in 1999 -- his knowledge of continuing
9 crimes in 1999.
10 So let's look at that. The Chamber found the MUP staff received
11 a steady stream of reports in 1999, including from 24 March 1999; that's
12 at Volume III, para 1089. And this is a finding that's confirmed by
13 information included in Lukic's own orders and reports. For example, on
14 the 15th of April, 1999, Lukic issued a dispatch noting that some of his
15 MUP intermediate commanders were "tolerating massive scale departures of
16 civilian population." That's a finding at Volume III, paragraph 1094.
17 And on the 4th of May, 1999, Lukic attended a meeting at a villa in
18 Belgrade at which information was presented that the security forces of
19 the VJ had dealt with numerous cases of violence, killings, pillage, and
20 other crimes. He included information from this meeting in an order to
21 his subordinates; that's at Volume III, para 1095. The Chamber will
22 recall of course that as a JCE member, the crimes of the VJ are
23 attributable to General Lukic; that's at Volume III, para 1132.
24 Not only that, Your Honours, but crimes were often discussed at
25 MUP staff meetings in 1999 as noted at paragraph 1126 of Volume III of
1 the judgement.
2 So as in 1998, in 1999 Lukic was informed of the massive
3 displacement of Kosovo Albanians. For example, he reported on
4 May 1st, 1999, that "between 24 March and 30 April 1999 a total of
5 715.158 persons belonging to the Siptar national minority left the
6 territory ..." and that's a finding that's contained in a lot of the
7 citations I mentioned at the beginning of my presentation. That's also
8 specifically at Exhibit P1693.
9 So under these circumstances, Your Honours, the Chamber properly
10 found that Lukic, along with Sainovic and Pavkovic, intended the forcible
11 displacements, including deportation and forcible transfer, that occurred
12 during the indictment period. It was also reasonable to conclude that
13 under these circumstances, Lukic's orders admonishing his subordinates to
14 not commit crimes could not have been genuine as they found at
15 Volume III, para 1129.
16 Turning then to Your Honours' eighth question relating to
17 JCE III, which is, for the sake of clarity of the record:
18 "Discuss, with reference to the record, whether there would be
19 any effect on Lukic's appeal regarding his convictions pursuant to
20 JCE III, if the Appeals Chamber were to accept the Prosecution's argument
21 that the Trial Chamber applied an incorrect mens rea standard for JCE III
23 The answer to this question, Your Honours, is that there would be
24 no effect. As my colleagues have already explained in their responses to
25 the appeals of Sainovic and to Pavkovic, the Trial Chamber here applied
1 an incorrect and more restrictive probability standard in assessing JCE
2 III liability -- JCE foreseeability, I'm sorry, rather than the correct
3 and less-restrictive possibility standard from para 365 of the Brdjanin
4 appeal judgement, paragraph 33 of the Blaskic appeal judgement, as
5 affirmed by the Appeals Chamber in the 25 June 2009 decision on
6 Prosecution's motion appealing Trial Chamber's decision on JCE III
7 foreseeability from the Karadzic case.
8 So in General Lukic's case then, the same findings that show that
9 he knew that murder and destruction would probably be committed in the
10 execution of the campaign of terror and violence also show that he knew
11 that murder and destruction as acts of persecution were a possible
12 consequence of the execution of this campaign. And those findings, for
13 your reference, are at paragraphs 1134 and 1136 of Volume III of the
14 trial judgement.
15 Now, in his appeal, Lukic seems to be arguing that the
16 Appeals Chamber should apply an even higher certainty standard by arguing
17 that he cannot be convicted of crimes for which he had no knowledge. For
18 example, in his challenge to his JCE III convictions for his -- for the
19 murders in Djakovica, he argues there is no evidence that he "personally
20 knew" of the murders or of the efforts to conceal the bodies afterwards,
21 and that's at his brief in paragraph 700. The question, Your Honours, is
22 not whether he knew of these crimes, but whether it was foreseeable to
23 him that they were a possible consequence of the execution of the JCE of
24 which he was a member.
25 And that concludes my answer to the eighth question,
1 Your Honours. I'll turn then to a few minor points. I see you have a
2 question, Mr. President.
3 JUDGE LIU: Yes, yes. Concerning with the murder in Djakovica, I
4 would like to know if the victims are combatants or civilians?
5 MR. WOOD: Well, the Chamber found that -- without the references
6 to the trial judgement at hand, Your Honour, the Chamber found that
7 those -- that constituted an act of persecution that was foreseeable to
8 him and that resulted in his conviction of JCE III. Therefore, it
9 follows that the victims of the murders in Djakovica were civilians,
10 Your Honour.
11 JUDGE LIU: Thank you.
12 You may proceed.
13 MR. WOOD: So turning briefly then to the matter of
14 Exhibit 6D614, which Judge T asked about this morning. Since it came up
15 as a question, I'll address that briefly. The Trial Chamber properly
16 exercised its discretion in denying admission of this 789-page document,
17 where it found that the document lacked sufficient indicia of reliability
18 to be tendered from the bar table as hearsay evidence. Now, as counsel
19 for General Lukic mentioned this morning, it was a summary of documents.
20 The underlying documents were not put before the Trial Chamber, so the
21 Trial Chamber found it could not assess the accuracy of these summaries.
22 Counsel for General Lukic today has failed, as he has in his brief, to
23 explain how the Chamber abused its discretion under these circumstances
24 and how this decision has had any impact on the judgement or his
25 conviction. And I could refer Your Honours to the decision on this point
1 of 2 July 2008 of the Trial Chamber; that's paragraphs 27 to 31. We also
2 address this in our brief as well, Your Honours.
3 In summation, Your Honours, the Trial Chamber properly convicted
4 Lukic of deportation, inhumane acts, murder, and persecutions. His
5 challenges in his appeal express his profound disagreement with the
6 Trial Chamber's findings, but they fail to show any error. The
7 Appeals Chamber should dismiss General Lukic's appeal, it should affirm
8 his convictions, and it should adjust his sentence in accordance with the
9 Prosecution appeal.
10 And before I sit down, Your Honours, I do have a couple of
11 corrections for earlier transcript references, specifically today's
12 temporary transcript page 54, line 18, it reads "945, 1050," that should
13 be "945 through 1050." And at transcript 61 of the temporary transcript
14 today at line 13 it reads "the majority of the non-Albanian population
15 was not part of the KLA," that should read "the majority of the Albanian
16 population was not part of the KLA."
17 And, Your Honours, Mr. President, in reference to your question
18 about Djakovica, I would refer you to Volume II, paragraphs 1197 to 1198
19 for information about the Djakovica murders. And I can mention briefly
20 that we won't be addressing sentencing today, Your Honours. The
21 Prosecution's view is that General Lukic's sentence was too short, as has
22 been argued in our appeal. You'll hear more about that tomorrow.
23 And unless there's further questions, I'll conclude,
24 Your Honours.
25 JUDGE LIU: Well, it seems to me there's no questions from the
1 Bench at this stage.
2 MR. WOOD: Thank you, Your Honour.
3 JUDGE LIU: Thank you. I think that concludes the response from
4 the Prosecution; right?
5 MR. WOOD: Yes, Your Honours, that does.
6 JUDGE LIU: Thank you very much.
7 Any reply?
8 MR. IVETIC: There is, Your Honours, with your leave.
9 JUDGE LIU: You may proceed.
10 MR. IVETIC: Thank you, Your Honours.
11 The first thing that I have to say is that the Prosecution
12 response seems to just rely on paragraphs from the judgement instead of
13 the evidence. This is insufficient at this stage where the judgement is
14 challenged. The OTP has no answer for our arguments that portions of the
15 judgement are in contradiction with one another. What is their position
16 as to the finding of mitigation evidence on the one hand and then the
17 negation of the same in the same judgement? What is their position of
18 the disparate treatment between other appellants and Lukic? Simply, the
19 Prosecution would like to ignore findings that are not favourable to
20 them, but a judgement cannot be read that way on appeal. If a judgement
21 cannot stand on its own due to contradictions, it is unsafe and must be
23 The Prosecution has not and cannot rebut the clear error as to
24 mitigation evidence from the judgement that we have summarised and
25 presented for you. The judgement must be reversed for this reason on its
2 Moving along further. The Prosecution says we have not changed
3 our arguments, the factual story is the same as at trial. Well, how on
4 earth how could it be changed? I don't understand what they're talking
5 about. Obviously the evidence cannot be changed by either party, and we
6 stand by our position that the evidence at trial, just as now, does not
7 support the findings in the judgement and that acquittal is appropriate.
8 Your Honours asked the Prosecution to provide specific reference
9 to paragraphs of the judgement as to the question relating to evidence of
10 Sreten Lukic's involvement in the disarming of the population.
11 Throughout the rest of their response, all they did was cite paragraphs
12 from the judgement. But for this specific request, they did not give you
13 citations to the judgement. This highlights the error of the judgement
14 as I detailed for you earlier today.
15 You need to recall at this time that the voluntary surrender of
16 arms were under way, was a time when all parties were working on peace
17 accords. This is the area -- the time-period known as the
18 October Accords when there were multiple peace initiatives in play, and
19 peace, not war, were on everyone's mind. The items on the list that my
20 colleague, Ms. Kravetz, presented to you are the same entries that I
21 highlighted for you in my presentation, and every single one of them is
22 related to the voluntary surrender of arms during this time-period when
23 peace was on everyone's mind. Does that mean then that the UN and
24 international mediators were also part of the JCE?
25 We presented Lukic's only role was in relation to providing
1 statistics to both Serb officials on the one hand and international
2 officials, like Shaun Byrnes, on the other hand as to voluntary surrender
3 of arms. Surely that is not to be viewed as a crime.
4 In the context of arming, the Prosecution brought up the RPO, and
5 I'd like to take a look at what that actually is and what Lukic's role is
6 in relation to this topic. P2166 is the meeting in Belgrade that was
7 cited to by the Prosecution. This document shows an important fact. It
8 demonstrates that the Supreme Defence Council on June 9th, 1998, brought
9 a decision based on the Law of the VJ, the Law on Defence, and the rules
10 and regulations of the VJ to prepare a global plan for the suppression of
11 terrorism which foresaw the engagement of the VJ and the MUP.
12 If one looks at the evidence that was presented at trial, part 4
13 of this plan, this global plan, establishes the RPO. Again, this is the
14 same plan that you heard of this morning during my presentation, where
15 the Trial Chamber rightly concluded that neither the MUP nor Lukic
16 participated in its drafting. This is at book III, paragraphs 1021.
17 Further, the Prosecution did not provide any citations to any
18 evidence demonstrating that a single crime from the indictment was
19 committed by members of the RPO.
20 Your Honours, I invite you to look at the evidence of -- the
21 record of evidence because there has been no presentation of any such
22 evidence. Again, one has to look at time-periods because the different
23 time-periods that are at issue involved different legal frameworks,
24 different factual frameworks, and they provide a totality of the
25 evidence. The judgement at book I, paragraph 776, confirms that when the
1 war began, when the NATO bombing began, these very same RPO were at that
2 time mobilised and absorbed into their war time positions within the
3 various defence structures of the state, whether the VJ, the MUP, civil
4 protection, wherever their war time assignments were, they were absorbed
5 into them.
6 In book I, paragraph 788, as to the remaining 6.000 RPO that did
7 not have a war time assignment, the Chamber concludes that they fell
8 under the authority and command of the army, including in carrying out
9 assignments relating to combat and that this was in accord with the
10 Law of Defence, Articles 62 and 63. And for Your Honours's reference,
11 the Law of Defence is P985 in evidence.
12 So under the trial judgement's own conclusions, what could
13 Lukic's involvement, authority, and purported command over these RPO
14 amount to? It cannot. The Prosecution is avoiding dealing with the fact
15 that there are different periods with different legal frameworks that
16 cover the facts that were adduced at trial.
17 Further on the issue of the RPO, counsel mentioned book III,
18 paragraph 1066, and identified three documents - they are P1989, P1996,
19 and 6D802 - as relating to Lukic's orders to RPO in actions. I urge the
20 members of this panel to review all of those items because we submit that
21 neither that paragraph of the judgement, nor the three documents cited,
22 relate to any anti-terrorist actions or combat or anything of the sort in
23 relation to the RPO.
24 From this we see that the Prosecution has misrepresented the
25 relevance of the RPO to Lukic and his authority over the same.
1 I'd like to now turn to Lukic's interview which was also cited by
2 the Prosecution in their response. Your Honours will recall that we have
3 a separate ground of appeal relating to errors that arise from
4 Mr. Lukic's interview and the manner that it was used in the trial,
5 problems with the translations, and problems with the same. That is our
6 ground F of the appellant's brief. I will not repeat all those
7 arguments. I will just highlight something for you.
8 The Prosecution's focus is on one particular selection that talks
9 about the dual role as to the PJP of the staff, and again they seem to
10 ignore different time-periods, just as the Chamber does at
11 paragraph [sic] 3, 1013. In that paragraph, the Chamber also focuses on
12 this same selection from the interview. What is ignored is that in this
13 period, that is, 1999, Obrad Stevanovic, the commander of the PJP units
14 and also the chief of the police administration within the MUP was on the
15 ground in Kosovo. He didn't have an office. He used the staff. So when
16 Lukic is talking about the MUP staff, you have to take into account that
17 Obrad Stevanovic when he's in Kosovo, when he's in Pristina, he's at the
18 MUP staff.
19 Furthermore, as to the role that Lukic himself played, it's key
20 to look at P948, which is his interview, and to look at several points in
21 that interview, including at pages 4, pages 66, and pages 153, when Lukic
22 says: I want to give you more details and explain to you the precise
23 role of the MUP staff. And each time the Prosecution interviewer says:
24 No, no, we'll get to that later, we'll get to that later, let's finish
25 this. And he's never given a chance to give a full account, a full
1 explanation, explaining precisely what the meaning of those words were,
2 what the meaning of the MUP staff in the greater picture of things in the
3 MUP hierarchy was, and what his role as head of staff was. That would
4 conclude my comments as to the interview.
5 I'd like to now move to the September -- excuse me, 17 February
6 meeting that both Ms. Kravetz and Mr. Wood have referred to in their
7 remarks. We have a fundamental problem -- or, I should say, the
8 Prosecution and the Chamber have a fundamental problem that now is
9 imputed to all of us. They are operating from the English translation of
10 this document, which is not in comport -- does not comport to the B/C/S
11 original of the document. So I would like to, with the indulgence of the
12 interpreters, try to read the B/C/S original and see if we can obtain a
13 translation of what is actually said in the minutes of that meeting. And
14 I will now begin in B/C/S:
15 [Interpretation] "The staff has planned to carry out, whenever
16 this is ordered, three operations: Mopping-up of the terrain from the
17 terrorists in the sectors of Podujevo, Dragobilje, and Drenica."
18 [In English] And this is P1990 for the record.
19 What is clear from the context of these words is not that the
20 staff has planned an action, but rather that the staff is planning to
21 carry out something once it is ordered, that it intends to carry out
22 orders once they have given. The Prosecution has also mentioned and
23 during this same time-period indeed dated, I believe, one day prior is
24 P2808, which is an order from the Pristina Corps dealing with these exact
25 same locations that are mentioned here, identifying both VJ and MUP units
1 to be involved, and setting out assignments for the same. So indeed, the
2 role of the MUP staff in this is not of the command nature that the
3 Prosecution has implied.
4 Now, I submit to you that both the judgement and the Prosecution
5 ignore the facts on the ground as to 1999 and the evidence of the same,
6 and I'd like to draw Your Honours' attention to some of those factors
7 that I think are relevant for understanding this case. We have the
8 testimony of Colonel Crosland, an international diplomat, that during
9 this time-period the KLA controlled 70 per cent of the territory of
10 Kosovo; that's at transcript page 9910. At the same time, NATO was
11 bombing Kosovo every day and in evidence we had several incidents where
12 NATO bombed Kosovo Albanian refugees. We also had several incidents
13 where NATO bombs fell on civilian targets. We can call it something
14 nice. We can call it collateral damage, but for people on the ground
15 looking at their neighbours' houses being bombed they're thinking of it
16 differently, they're thinking of it as a signal to get out of there
17 before it's their house.
18 Per Sandra Mitchell at transcript page 566 through 567, the
19 Kosovo Verification Mission had evidence that 100.000 Serbs left their
20 homes in Kosovo during the NATO bombing. That would amount to
21 40 per cent of the Serb population of Kosovo leaving during the NATO
22 bombings. The figures given for the Kosovo Albanians leaving is
23 30 per cent of the Kosovo Albanian population.
24 I think the question we all have to ask and which the
25 Trial Chamber failed to ask: Were Serbs leaving their homes in Kosovo
1 for the same reasons as the Albanians? A reasonable alternative reading
2 of the evidence is that they were, that they were all leaving because of
3 the NATO bombings, not the actions of the VJ or the MUP. Without an
4 analysis to exclude that reasonable alternative conclusion, the
5 Trial Chamber judgement is in error.
6 I urge you to look at the evidence in the judgement that has now
7 been relied upon, the paragraphs that have been relied upon by the
8 Prosecution as to why people left, paragraph 1125, no citations to the
9 evidence, that's in Volume II; Volume III, paragraph 45, again no
10 citations to the evidence; paragraph 95, no numbers; paragraph 1123, no
11 numbers, no citations to the evidence.
12 The Trial Chamber did not calculate the number of departures that
13 resulted from any direct evidence of expulsions of the type that are
14 alleged in the Prosecution's indictment. There is no evidence-based
15 findings on the number of persons expelled, nor the reasons why they
16 left. If one looks at the witnesses that came and testified, there were
17 48 crime base witnesses. Thirty-three of the same, which amounts to
18 70 per cent, did not say that they left because they were forced out by
19 the VJ and the MUP, but rather they said they left for other reasons like
20 fears of NATO bombing, fears of combat between the KLA and the Yugoslav
21 forces, or personal reasons. Those are legitimate reasons for people to
22 leave. Those are similar legitimate reasons that people in other cases
23 have been acquitted, like the Gotovina appeals judgement. Here we have
24 direct evidence from Bislim Zyrapi, who was the KLA commander, who
25 testified here at transcript page 6003, who confirmed that KLA ordered
1 Kosovo Albanians to leave their homes as part of their plan and strategy.
2 How can we, therefore, then exclude this as a reason for the
3 displacements of persons that we saw? A reasonable Trial Chamber cannot,
4 and therefore this judgement is in error. It is unsafe.
5 One last topic I'd like to touch upon that my colleague Mr. Wood
6 mentioned. In relation to notice of crimes, he gave us a reference to a
7 paragraph and talking about Shaun Byrnes and what Shaun Byrnes said about
8 the police burning homes on a daily basis. I'd like to look at what the
9 evidence says, not what the trial judgement says. Shaun Byrnes at
10 transcript page 12148:
11 "I did not see a single PJP officer pull a trigger. I did not
12 see a PJP officer light a house on fire by whatever means, but there were
13 no Albanians about. They had fled and the village was in flames."
14 Under this evidence it is not the only reasonable conclusion that
15 crimes imputed to the MUP can be inferred. People flee and houses burn
16 from legitimate combat as well. The biggest problem with the OTP and the
17 judgement is they forget or fail to apply the principle of in
18 dubio pro reo throughout and that is the single most reason why,
19 Your Honours, your review is required and why this judgement is unsafe,
20 illogical, and must be overturned. And I thank you for the time to make
21 these submissions.
22 JUDGE LIU: Well, it seems to me that there's no questions from
23 the Bench, so that concludes the hearings for today. And tomorrow we'll
24 have a longer day. We'll start from 9.00 until 5.00, compared with
25 today -- yes, Mr. Wood.
1 MR. WOOD: Your Honour, I just have one further transcript
2 correction to make, just for the clarity of the record. At transcript
3 70, line 3, today it says the number "78" but it should really be line
4 "1178" which is what I intended to say.
5 JUDGE LIU: Thank you. We are adjourned from these proceedings
6 until tomorrow morning at 9.00 a.m.
7 --- Whereupon the hearing adjourned at 3.15 p.m.,
8 to be reconvened on Friday, the 15th day of
9 March, 2013, at 9.00 a.m.