Tribunal Criminal Tribunal for the Former Yugoslavia

Page 571

 1                           Friday, 15 March 2013

 2                           [Appeals Hearing]

 3                           [Open session]

 4                           [The appellants entered court]

 5                           --- Upon commencing at 9.00 a.m.

 6             JUDGE LIU:  Good morning, everyone.  Madam Registrar, would you

 7     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.  As indicated, if any parties

12     are unable to follow the proceedings at any stage, I ask them to bring

13     this to my attention immediately.

14             For the sake of the record, may I -- may we have the appearances

15     of the parties.  First, the Prosecution.

16             MR. KREMER:  Thank you, Mr. President, Your Honours.

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

18     morning is my colleague Michelle Jarvis.  She's assisted by Najwa Nabti,

19     Priya Gopalan.  Also assisting this morning and making submissions will

20     be Mr. Nema Milaninia, and again we're joined by our colleague

21     Colin Nawrot, our Case Manager.  Thank you.

22             JUDGE LIU:  Thank you very much.  For the Defence.

23             MR. FILA: [Interpretation] Good morning, Your Honours.  My name

24     is Tomo Fila.  Next to me is Vladimir Petrovic and we still represent the

25     accused Nikola Sainovic.


Page 572

 1             JUDGE LIU:  Thank you.

 2             MR. ACKERMAN:  Morning, Your Honours.  John Ackerman along with

 3     Aleksandar Aleksic for General Pavkovic.

 4             JUDGE LIU:  Thank you.

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

 6     Mr. Vladimir Lazarevic, Mihajlo Bakrac, Djuro Cepic, and our intern

 7     Milan Petrovic.

 8             JUDGE LIU:  Thank you.

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

10     Dan Ivetic for Mr. Lukic.

11             JUDGE LIU:  Thank you.  This morning we'll hear the appeals of

12     the Prosecution.  Now, counsel for the Prosecution, please.

13             MR. KREMER:  Thank you, Mr. President.  To provide you with a

14     road map of our submissions today, my colleagues Ms. Jarvis and

15     Mr. Milaninia and I have divided the Prosecution's case and limited

16     ourselves to four of the six grounds in our Notice of Appeal and appeal

17     brief.  Ms. Jarvis will make submissions on grounds 3 and 4 pertaining to

18     the Chamber's errors concerning the crimes of persecution involving

19     sexual violence.  Mr. Milaninia will then briefly make submissions on

20     ground 2 regarding the Chamber's erroneous acquittal of General Lazarevic

21     for aiding and abetting murders involving the VJ.  And I will conclude by

22     addressing the Chamber's sentencing errors.

23             We will not make submissions on grounds 1 and 5.  These grounds

24     concern technical legal errors and are fully briefed in our written

25     submissions.

Page 573

 1             If questions arise from the Bench or during the course of

 2     submissions by Defence, we will deal with those in reply.  Thank you.

 3             JUDGE LIU:  Thank you.  Ms. Jarvis.

 4             MS. JARVIS:  Good morning, Mr. President and Your Honours.  As

 5     Mr. Kremer has just mentioned, I'm going to be addressing you this

 6     morning in relation to the Prosecution's third and fourth grounds of

 7     appeal which relate to the treatment of sexual assaults as persecution.

 8             Ground 3 concerns the Trial Chamber's error in failing to find

 9     that sexual assaults were foreseeable to Sainovic and to Lukic under the

10     JCE III standard.  And ground 4 concerns the Trial Chamber's error in

11     failing to find that the sexual assaults that occurred in Pristina were

12     committed with the discriminatory intent required for persecution, and

13     this error affects the convictions of Sainovic, Pavkovic, and Lukic.

14             Presently, Your Honours, the outcome of this case stands for the

15     proposition that in the midst of a violent ethnically driven expulsion

16     campaign where women and girls are expelled from their homes in a highly

17     volatile and terrifying atmosphere, where they are left at the mercy of

18     tens of thousands of armed military and police forces, and where there

19     are no effective protective mechanisms in place, acts of sexual violence

20     are not foreseeable.  A further implication of the trial judgement

21     currently is that unless a perpetrator makes an expressly discriminatory

22     statement at the time of inflicting an act of sexual assault,

23     discriminatory intent for persecution cannot be found.

24             Your Honours, it is important that we look carefully at both of

25     those conclusions.  For almost two decades, the ICTY has fairly and

Page 574

 1     appropriately corrected many of the historical misconceptions surrounding

 2     wartime sexual violence crimes.  At this stage, the ICTY should not leave

 3     as part of its legacy the perception that these crimes are subjected to

 4     higher standards of foreseeability or more onerous standards of proof

 5     concerning discriminatory intent.

 6             It is equally important to establish accountability for these

 7     crimes, Your Honour.  You must focus on whether under the applicable

 8     criminal standards the Trial Chamber erred in assessing the culpability

 9     of the accused in this case.  In our submission, it did.

10             My argument today will proceed as follows.

11             First I will address Your Honours in relation to ground 3

12     concerning the foreseeability of the sexual assault persecution.  I'll

13     explain that the Trial Chamber erred in applying too high a risk

14     threshold for JCE III.  I'll then discuss why, in correcting that legal

15     error, Your Honours should be satisfied beyond a reasonable doubt that

16     persecution based on sexual assaults was foreseeable to the JCE members,

17     including Sainovic and Lukic.

18             Second, I'll address Your Honours in relation to ground 4

19     concerning discriminatory intent for persecution.  I'll explain why,

20     given all of the prevailing contextual factors surrounding the rapes, the

21     only reasonable conclusion is that they were committed with

22     discriminatory intent.  I'll also explain why, having corrected the

23     Trial Chamber's errors, Your Honours should confirm that the Pristina

24     rapes constitute persecution and enter convictions under JCE III for

25     Sainovic, Pavkovic, and Lukic.

Page 575

 1             Turning first to the Prosecution's third ground of appeal.

 2     Before I proceed, Your Honours, I do want to make it clear that the

 3     Prosecution does not maintain the argument initially put forward in its

 4     appeal brief that Sainovic and Lukic had actual notice that sexual

 5     assaults were happening prior to the commencement of the 1999 campaign.

 6     As we mentioned in our reply brief, we accept that the evidence does not

 7     unequivocally support that proposition.  However, in our submission, this

 8     in no way affects the viability of our ground of appeal.  For the reasons

 9     that I'll explain, proof of prior notice that the same crimes have

10     previously happened is not required to prove foreseeability.

11             Your Honours, it is clear that the Trial Chamber has committed a

12     legal error by applying too high a risk threshold for JCE III.  The

13     Trial Chamber required proof that the JCE members could foresee that

14     sexual assaults would happen, relying on a decision that the

15     Appeals Chamber has since confirmed is not good law.  It should instead

16     have considered whether the JCE members could foresee that sexual assault

17     persecutions might happen, which equates with a possibility risk

18     threshold.  And the Appeals Chamber has, of course, settled this issue in

19     its interlocutory appeal decision in the Karadzic case dated

20     25 June 2009.

21             The Karadzic Appeals Chamber specifically noted that JCE III

22     mens rea is satisfied if there is a possibility of the crime.  Certainly

23     we acknowledge that the Appeals Chamber cautioned that the standard will

24     not be satisfied by implausibly remote scenarios and that there must be a

25     sufficiently substantial possibility of the crime happening to make it

Page 576

 1     foreseeable to the particular accused person in question.  But

 2     nevertheless, the Appeals Chamber confirmed that requiring proof of a

 3     probability of the crime is setting the bar too high.  That's at

 4     paragraph 18 of the Karadzic decision.

 5             So there has been a clear legal error.

 6             Your Honours must now apply the correct legal standard -the

 7     possibility risk threshold - to the Trial Chamber's factual findings and

 8     the evidence on the record and decide whether you are satisfied that the

 9     possibility of sexual assault persecutions was foreseeable to Sainovic

10     and Lukic in the course of implementing the common criminal purpose.

11             JUDGE LIU:  Ms. Jarvis, would you be kind enough to point out a

12     specific paragraph of the judgement where you claim that the

13     Trial Chamber made an error in applying the wrong standards.

14             MS. JARVIS:  Yes, Your Honour.  Perhaps I could give a brief

15     answer initially by saying that we have, of course, identified the

16     relevant paragraphs in our Notice of Appeal but I can also take you

17     through them as well.  If you allow me just one moment to find the

18     relevant passages.

19             Your Honours, in particular in Volume I of the Trial Judgement at

20     paragraphs 96 and 111, when we see, for example, in paragraph 190 --

21     sorry, in paragraph 96, if you move towards the end of that paragraph on

22     page 40, the Trial Chamber has indicated it was looking to see whether it

23     was reasonably foreseeable to him that the crime or underlying offence

24     would be perpetrated by one or more of the persons used by him, being a

25     member of the JCE.  And this same language is then repeated in

Page 577

 1     paragraph 111 of Volume I.  And again I take you to the end of the

 2     paragraph on page 46, and we see again reference to it being reasonably

 3     foreseeable on the basis of the information available to the accused that

 4     the crime or underlying offence would be committed.  The language of

 5     "would" is clearly incorrect and that has been confirmed by the Appeals

 6     Chamber.  The relevant language should be "might be committed," which

 7     does equate to a lower risk threshold that is equivalent to a possibility

 8     threshold.

 9             We see, Your Honours, similar language being repeated in

10     Volume III of the Trial Judgement when the Chamber came to make its

11     findings in relation to JCE III, and in particular, in relation to the

12     accused Lukic, the Trial Chamber uses the term whether the sexual

13     assaults were "likely," which again we say is indicative of the wrong

14     legal threshold.

15             Your Honours, more generally, the Trial Chamber in formulating

16     this language was relying on the Brdjanin interlocutory appeal decision

17     which did adopt the higher probability standard, and this was the very

18     decision that in the Karadzic case the Appeals Chamber confirmed was too

19     high a standard and had been implicitly overturned by other authorities.

20             JUDGE LIU:  Thank you.

21             MS. JARVIS:  Your Honours, foreseeability for the purposes of

22     JCE III must be assessed with reference to the overall context in which

23     the crimes were committed and particularly in light of the nature of the

24     common criminal purpose.  While evidence that the accused knew the same

25     types of crimes had previously happened might be one relevant contextual

Page 578

 1     factor, it is certainly not an essential ingredient in proving

 2     foreseeability.  There are many other contextual factors that we say are

 3     relevant, and we ask Your Honours to make this point clear when rendering

 4     your judgement in this case.

 5             To illustrate the point, Your Honours, let's take for a moment

 6     the classical JCE III scenario where an accused person is held

 7     responsible for murder as a participant in a JCE to commit an armed bank

 8     robbery, even though it was never intended that anyone would actually be

 9     shot in the course of the robbery.

10             The assessment that murder is a foreseeable consequence of the

11     JCE III of the armed robbery doesn't depend on evidence that the

12     participants in the JCE knew that bank staff had recently been shot in

13     the course of other armed robberies.  It's a matter of common sense.  If

14     someone charges into a bank with a loaded weapon to steal valuables, it's

15     foreseeable that someone might be killed.

16             Compare this to the JCE in this case.  Instead of one loaded gun,

17     tens of thousands of armed men unleashed into villages, including going

18     door-to-door using violence and terror to forcibly displace upwards of

19     700.000 people, including, of course, women and girls.  Your Honours must

20     ask yourselves what crimes are foreseeable in this context?

21             This approach has been previously adopted by many Trial Chambers

22     and endorsed by the Appeals Chamber.  And the Krstic case, Your Honours,

23     is a very clear example.  In finding that sexual violence was a

24     foreseeable consequence of the humanitarian crisis in Potocari, the

25     Trial Chamber did not require evidence that General Krstic knew his

Page 579

 1     troops had previously been raped [sic].  Instead, the Trial Chamber drew

 2     common sense inferences based on an ordinary understanding of human

 3     behaviour, given the prevailing contextual factors and given the nature

 4     of the common criminal plan which was to displace women and children and

 5     elderly from the area.  So the Trial Chamber emphasised the lack of

 6     shelter, the density of the crowds, the vulnerable condition of the

 7     refugees, the presence of many regular and irregular military and

 8     paramilitary units in the area and the sheer lack of protection available

 9     for the refugees.

10             General Krstic knew enough about these prevailing contextual

11     factors to make it foreseeable to him that women might be raped in this

12     context.  I refer you to paragraph 616 to 617 of the Krstic trial

13     judgement and the Appeals Chamber endorsed this analysis at paragraph 149

14     of its appeal judgement.

15             The Kvocka case is another clear example of a contextual

16     analysis.  In finding that sexual violence was foreseeable in the context

17     of the Omarska prison camp in Prijedor municipality, the Trial Chamber

18     did not require evidence the accused knew women had been previously raped

19     in the camp.  Instead, again, the Trial Chamber drew common sense

20     inferences based on an ordinary understanding of human behaviour given

21     the prevailing contextual factors and given the criminal plan to

22     persecute and subjugate the non-Serb detainees.

23             The Trial Chamber concluded, and the text will appear on your

24     screens, Your Honours:

25              "Indeed it would be -- indeed, it would be unrealistic and

Page 580

 1     contrary to all rational logic to expect that none of the women held in

 2     Omarska, placed in circumstances rendering them especially vulnerable,

 3     would be subjected to rape or other forms of sexual violence."

 4             That's at paragraph 327 of the Kvocka trial judgement.

 5             To the Krstic and Kvocka precedents we can now also add the

 6     Tolimir trial judgement rendered in December last year.  Although the

 7     Tolimir case didn't deal expressly with sexual violence crimes, the

 8     overall approach to foreseeability under JCE III is instructive and

 9     consistent with the Krstic and Kvocka precedents.  It's at paragraphs

10     1136 and 1140 of the Tolimir trial judgement.

11             Your Honours, if you carry out a similar contextual analysis in

12     this case, the only reasonable conclusion is that Sainovic and Lukic

13     could foresee that sexual assault persecution might happen in the context

14     of this joint criminal enterprise.  This conclusion is reinforced by

15     Judge Chowhan's analysis in his dissenting opinion in this case.  In

16     finding sexual assaults were foreseeable, Judge Chowhan relied on factors

17     including the involvement of able-bodied Serb forces, a common plan in

18     which expulsion was achieved using violence, and the removal of women

19     from their homes.  Judge Chowhan's reference to prudence and common sense

20     shows that he was applying everyday understandings of human dynamics in

21     the context of the common purpose in question.  That, we say, was the

22     right approach and the one that Your Honours should adopt in this case.

23             Your Honours, the regrettable truth is that we still live in a

24     world where sexual violence against women is commonplace.  In the chaos

25     and aggression of armed conflict, when normal social structures have

Page 581

 1     broken down, the risk is higher again.  And certainly, Your Honours, in

 2     the midst of a violent ethnic cleansing campaign like the one in this

 3     case, to say that violations of physical integrity such as sexual assault

 4     was not even a foreseeable possibility would be to close our eyes to

 5     human experience.

 6             I want to highlight three main indicators in this case that we

 7     say made the possibility of sexual assault foreseeable to Sainovic and

 8     Lukic.  They are, first of all, the use of violence and terror as an

 9     integral part of the common criminal purpose.  Second, the prevailing

10     climate of intense ethnic animosity.  And third, the fact that women and

11     girls were left in an utterly vulnerable position without normal

12     protective measures functioning.

13             ICTY case law confirms the relevance of each of these predictive

14     factors in predicting sexual violence or other violent crimes.  For

15     example, I refer Your Honours to the Krstic trial judgement,

16     paragraph 616, and the appeal judgement, paragraph 149; the Kvocka trial

17     judgement, paragraph 327; the Popovic trial judgement, paragraph 1088;

18     and the Tolimir trial judgement, paragraph 1136.

19             So turning to the first indicator, the use of violence and terror

20     by armed Serb forces as an integral part of the expulsion campaign.

21             Your Honours, it would be unrealistic to expect that upwards of

22     700.000 people, Kosovo Albanians, would calmly agree to leave their homes

23     never to return on the basis of a polite request.  It's obvious that in

24     order to permanently uproot so many people, the armed Serb forces had to

25     use violence, including door-to-door expulsions, to terrify the targeted

Page 582

 1     population into fleeing.  And the Trial Chamber found exactly that.  The

 2     judgement is replete with references underscoring the use of violence and

 3     terror as a part of the expulsion campaign.  For example, and

 4     Your Honours will see the language on your screens, the Trial Chamber was

 5     satisfied that there was:

 6             "A broad campaign of violence directed against the Kosovo

 7     Albanian civilian population during the course of the NATO air

 8     strikes ..."

 9             That's Volume II, paragraph 1156.

10             The Trial Chamber also found:

11             "... consistent eyewitness accounts of the systematic

12     terrorisation of Kosovo Albanian civilians by forces of the FRY and

13     Serbia, their removal from their homes, and the looting and deliberate

14     destruction of property, satisfies the Chamber that there was campaign of

15     violence directed against the Kosovo Albanian civilian population, during

16     which there were incidents of killing, sexual assault, and the

17     intentional destruction of mosques."

18             That's Volume II, paragraph 1178, and I refer to you a similar

19     finding at paragraph 1156.

20             Most importantly, Your Honours, the Trial Chamber was satisfied

21     that the use of violence and terror was an essential component of the

22     common criminal purpose and again you'll see the text appearing on your

23     screens.

24             The Trial Chamber formulated the common purpose this way, it

25     said:

Page 583

 1             "Through a widespread and systematic campaign of terror and

 2     violence, the Kosovo Albanian population was to be forcibly displaced

 3     both within and without Kosovo."

 4             That's Volume III, paragraph 95.

 5             It is important that we understand sexual assaults were violent

 6     crimes committed in the course of this violent attack, just like the

 7     violent expulsions, murders, beatings, and property damage.

 8             The gang-rape of Witness K20 in Beleg is a clear example.  Serb

 9     forces arrived in Beleg with armoured vehicles and began mistreating the

10     Kosovo Albanian population.  Personal documents were confiscated, men

11     were beaten and murdered, and women were strip-searched and subjected to

12     sexual violence.  That's paragraph -- Volume II paragraphs 54 to 55,

13     58 to 64.

14             Armed Serb forces surrounded K20's home and ordered her and her

15     family to leave.  There were imprisoned in a stifling basement with

16     around 300 other prisoners, many of whom were women.  K20 was taken out

17     with four other girls and violently gang-raped by four soldiers.  At the

18     same time, she could hear the screams of two other girls and she knew

19     that they were being raped too.  Afterwards she was in such severe pain

20     that she could not sit and she lost consciousness.  The next day, a

21     policeman ordered K20 and the other detainees:  "Go to Albania, you have

22     asked for NATO."

23             The villagers of Beleg fled Kosovo, like the hundreds of

24     thousands of other Kosovo Albanians.  K20 was among them.  She had been

25     evicted from her home, imprisoned in inhumane conditions, raped, and

Page 584

 1     finally expelled from Kosovo, fulfilling the aims of the JCE.  That's

 2     Volume II, paragraphs 58, 61, 65, 67, 1178; and Exhibit P2669 at pages 2,

 3     and 4 to 6.

 4             The experiences of the sexual assault witnesses in Qirez bear the

 5     same hallmarks.  Men were killed at will, homes and property burned, and

 6     women were forced to flee from place to place and were sexual assaulted.

 7     That's Volume II, paragraphs 623 to 636.

 8             While the forms of physical violence inflicted on the Kosovo

 9     Albanian population took on different dimensions depending on whether

10     they were men or women, they were all subjected to violence that made

11     them flee.  It is important to remember that the crime we're dealing with

12     here is persecution based on violations of physical integrity.  We should

13     not lose sight of the fact that these sexual assaults, like all other

14     acts of violence to the person, are about the use of physical force to

15     injure and damage human beings.

16             The Trial Chamber found that both Sainovic and Lukic knew that

17     the displacement would be effected by violence and terror.  In

18     particular, the Trial Chamber found that this was one of the factors

19     making property destruction foreseeable to them -- to each of them.

20     That's Volume III, paragraphs 473 and 1136.  Similarly, in finding that

21     murder was foreseeable to Sainovic and Lukic, the Trial Chamber

22     specifically referred to "the context in which the forcible displacement

23     took place."  That's Volume III, paragraphs 470 and 1134.

24             This context obviously included the overwhelmingly violent and

25     terrifying nature of the campaign.  If the overarching use of violence

Page 585

 1     and terror in carrying out the expulsion campaign is relevant in

 2     predicting violations of physical integrity like murder, then it is

 3     equally relevant in predicting violations of physical integrity like

 4     sexual assault.  Similarly, if it's relevant in predicting property

 5     damage, it is certainly relevant in predicting physical damage to the

 6     female members of that same group.

 7             Human experience tells us that the violent acts committed against

 8     women very often take on different forms in the context of a campaign

 9     like the 1999 expulsion campaign in Kosovo.  It is important that the law

10     recognises and responds adequately to the experiences of everyone.

11             A second indicator of sexual assault persecution in this case is

12     the strong ethnic animosity that permeated the displacement campaign in

13     Kosovo in 1999.  This led to a volatile and highly charged situation.  In

14     indeed in this case the Trial Chamber relied on ethnic animosity and

15     division as a factor in finding that both Sainovic and Lukic could

16     foresee murder and the destruction of religious property.  That is

17     Volume III, paragraphs 470, 473, 1134, and 1136.  Again, Your Honours, if

18     it's a relevant factor in predicting murder and the destruction of

19     property belonging to the targeted ethnic group, then it is certainly a

20     relevant factor in predicting violent acts of persecution such as sexual

21     assault on the women of that same ethnic group.

22             A third evidentiary indicator of sexual assault persecution in

23     this case is the fact that the Kosovo women and girls were left in an

24     utterly vulnerable situation without normal protective measures

25     functioning.  They were forced from their homes and left at the mercy of

Page 586

 1     the armed Serb forces who exercised total power over them.  Sainovic and

 2     Lukic were well aware of the vulnerable position of the women and girls.

 3     First, the whole point of the criminal plan they endorsed was to force

 4     the Kosovo Albanian population, including the women and girls, from the

 5     safety and security of their homes.  Second, from their experience in

 6     1998, both accused knew that this criminal plan would likely result in a

 7     humanitarian crisis -- catastrophe and a refugee crisis.  That's

 8     Volume III, paragraphs 442 and 1079.

 9             This was confirmed by what they saw in Pristina during the JCE's

10     implementation.  The Trial Chamber found that during the NATO campaign

11     Sainovic was again a very well-informed politician when it came to the

12     events in Kosovo, and that he had a detailed knowledge of events on the

13     ground in Kosovo in both 1998 and 1999.  That's Volume III,

14     paragraphs 464 and 470.

15             Sainovic was in Pristina during periods when massive expulsions

16     were taking place there, involving door-to-door searches and terrifying

17     the Kosovo Albanian population with threats, beatings and gunfire as they

18     moved in confined columns.  That's set out in our appeal brief at

19     paragraph 79.

20             Similarly, the Trial Chamber found Lukic had a detailed knowledge

21     of events on the ground in 1998 and 1999.  Volume III, paragraph 1134.

22     Lukic was based at the MUP staff headquarters in Pristina and he knew

23     ill-treatment and forcible displacements were occurring.  That's

24     Volume III, paragraph 1124.

25             In addition to these three indicators I've mentioned so far,

Page 587

 1     which are of themselves a sufficient basis to find the possibility of

 2     sexual assault was foreseeable, we also rely on the additional contextual

 3     factors set out in our appeal brief.  In particular, in deploying the VJ

 4     and MUP forces in 1999 to expel the Kosovo Albanian population, Sainovic

 5     and Lukic knew that these same forces had in fact committed violent

 6     crimes including violations of physical integrity during the 1998

 7     campaign.  For example, I refer you to paragraph 70 of our appeal brief.

 8             Not only that, but the JCE members, including Sainovic and Lukic,

 9     used these same forces to carry out a vastly more extensive expulsion

10     campaign without putting in place any meaningful safeguards.

11             In this respect, I refer Your Honours to the approach taken by

12     the ICTR in the Karemera trial judgement at paragraphs 1476 to 1477,

13     finding that in the course of an extermination campaign to destroy a

14     group, it is foreseeable that soldiers and militias who participate in

15     the destruction will resort to rapes unless restricted by their

16     superiors.

17             Your Honours, if we were to conclude that sexual assault

18     persecutions were not foreseeable in this case as a possible consequence,

19     what then are we really saying about the nature of sexual assaults?  Are

20     we concerned that they were purely coincidental opportunistic assaults

21     which weren't connected to the broader campaign?  We know this is not the

22     case, because the Trial Chamber expressly found that they were part of

23     the widespread and systematic attack on the Kosovo Albanian population

24     and therefore constituted crimes against humanity.  That's Volume 2,

25     paragraphs 1184, 1188, 1220, and 1224.

Page 588

 1             By definition then, they were not a limited number of randomly

 2     selected individuals nor were they isolated acts.  Are we concerned,

 3     Your Honours, that the number of sexual assaults in evidence in this case

 4     was not higher?

 5             First of all, we should be careful about the conclusion that the

 6     numbers were low.  Although the Prosecution only charged the accused with

 7     11 incidents and their responsibility is limited to those, that doesn't

 8     mean they were the only incidents documented on the record.  There is

 9     evidence of around 50 additional sexual assaults.  And I refer

10     Your Honours to Volume 2, paragraphs 63, 629 to 636, 880; and

11     Exhibit P2596.  The Trial Chamber also referred to additional reports of

12     rape and sexual violence committed during the 1999 campaign in official

13     documents and meetings.  I refer you to Volume III, paragraphs 552, 572,

14     576, 578, 585, 726, 737, 749, 785, and 1135.

15             But more fundamentally, Your Honours, why should it matter even

16     if only a small number of sexual assaults were in evidence?  The question

17     is whether a crime that is predictable based on the nature of the common

18     purpose occurred, not whether it occurred in large numbers.  Your Honours

19     should instead focus on whether the violations of physical integrity

20     stemming from the sexual assaults fits in with the overall pattern of

21     violations of physical integrity in the violent campaign.

22             We say they did, and as I've mentioned, the Trial Chamber's

23     findings on the contextual elements of crimes against humanity very

24     strongly support that conclusion.

25             If we say that the sexual assault persecutions were not

Page 589

 1     foreseeable, does this mean that we either do not regard them as violent

 2     acts or that we regard them as somehow qualitatively different from other

 3     violent acts?  Neither of these propositions can be accepted either.

 4             Given the facts surrounding each of the incidents in this case,

 5     it's clear that the sexual assaults were about violence and control.  Nor

 6     were these acts qualitatively different just because of their sexual

 7     component.

 8             The ICTY's previous case law has resoundingly rejected Defence

 9     arguments that seek to put sexual violence in a different category from

10     other violent acts on the basis that one of the underlying motives might

11     have been a desire for sexual gratification.  And I refer Your Honours to

12     the Kunarac appeal judgement, paragraphs 153 and 155.

13             This case presents an opportunity for Your Honours to reinforce

14     this point and it's an important one.

15             Not only was the possibility of sexual assault persecution

16     foreseeable to Sainovic and Lukic, but they willingly took the risk that

17     it would happen by joining and continuing to participate in the criminal

18     enterprise.  Moreover, they took no meaningful steps to prevent the

19     crimes from happening.  And I refer Your Honours generally to the

20     Trial Chamber's findings Volume III, paragraphs 458, 477 -- sorry, 458 to

21     477, and 1114 to 1140.

22             Your Honours, the contextual analysis that we're advancing here

23     does not result in an overly broad or unfair approach to

24     responsibility.  In this case we're not speaking about the general risk

25     of sexual assault happening during conflict.  We're speaking about the

Page 590

 1     considerably heightened risk of it happening in the midst of a violent

 2     expulsion campaign to terrify a population into leaving.

 3             Your Honours, this brings me to the fourth ground of appeal

 4     concerning the classification as persecution of three rape incidents in

 5     Pristina in April and May 1999.  The Trial Chamber accepted that the

 6     three rape incidents were proved but stated that the Prosecution had

 7     "failed to bring any evidence" from which it could infer that these rapes

 8     were carried out with the discriminatory intent required for persecution.

 9     That's Volume II, paragraph 1245.

10             It is clear, again, that the Trial Chamber committed an error in

11     saying that there was no relevant evidence.  The Chamber failed to

12     consider any of the general or specific contextual factors surrounding

13     the rapes which are highly relevant to assessing discriminatory intent.

14     In addition, in the case of Witness K31, the Trial Chamber failed to

15     consider direct evidence of discriminatory intent in the form of a

16     derogatory statement about Albanians made by one rapist.

17             This was an error of law or alternatively an error of fact.  You

18     could consider it an error of law because the Trial Chamber improperly

19     limited the scope of the evidence it considered relevant.  Effectively it

20     required evidence of a directly discriminatory statement in order to find

21     persecution.  Alternatively, Your Honours could approach it as an error

22     of fact.  Either way, the only reasonable conclusion is that the Pristina

23     rapes were carried out with the discriminatory intent required for

24     persecution.

25             This is not the first time that the Appeals Chamber has been

Page 591

 1     confronted with an issue similar to the one before Your Honours today.

 2     It also came up in the Krnojelac case.  There too the Trial Chamber had

 3     failed to analyse the contextual surrounding circumstances of the crimes

 4     to infer discriminatory intent and the Appeals Chamber overturned the

 5     Trial Chamber's erroneous conclusions and substituted persecution

 6     convictions.  For example, the Krnojelac appeal judgement at

 7     paragraphs 184 to 188.

 8             In doing so, the Appeals Chamber confirmed that the fact that

 9     something happens in the course of a broader discriminatory attack,

10     doesn't, of course, mean that you can automatically infer it was also

11     committed with discriminatory intent.  But the Appeals Chamber also

12     confirmed that if the circumstances surrounding the commission of the

13     specific acts in question are consistent with that broader discriminatory

14     context, then of course you can and should infer discrimination based on

15     the whole package of relevant factors.

16             Here, Your Honours, all the circumstances surrounding the rape

17     incidents in Pristina confirm that they were an integral part of the

18     discriminatory attack.  We've set out the relevant factors in some detail

19     in our appeal brief at paragraphs 87 to 100, and I won't go over them in

20     detail here but I will highlight some of the key factors.  It is

21     important that we clearly understand the context in which these rapes

22     happened.

23             Everything that happened to the three Kosovo Albanian women -

24     K31, K14, and K62 - was connected to their ethnicity.  K31 saw villagers

25     murdered around her during the attack on Pristina.  Serb forces then

Page 592

 1     captured her and her injured brother.  Her hands were tied, she was

 2     threatened with death, and four soldiers tried to extract information

 3     from her about her uncle and so-called alleged terrorists.  She was

 4     beaten, abused and sexual assaulted as the soldiers took her to the

 5     Pristina hospital.  At the hospital, she was imprisoned in a basement

 6     with up to 15 other young Kosovo Albanian women who had apparently been

 7     brought there to be raped.  She was drugged and brutally raped several

 8     times by three different soldiers.  One of them cursed Albanians

 9     immediately after he raped her.

10             The experiences of K14 and K62, the other Pristina witnesses,

11     bear similar hallmarks.  All three were Kosovo Albanian women targeted by

12     Serb forces for expulsion, imprisonment and rape because they were Kosovo

13     Albanian women.  And the strategy was successful.  As K14 explained,

14     after being violently raped by Serb forces at the notorious Hotel Bozhur,

15     she and her family fled.  That's in the transcript at page 10990.

16             Your Honours, nothing about the prevailing context shows that

17     these rapes were somehow separate or isolated acts disconnected from the

18     broader discriminatory attack.  To paraphrase the Kvocka Trial Chamber at

19     paragraph 195, when all the victims of this attack were Kosovo Albanian

20     civilians and when all of the abusers were members of the Serb forces

21     sent in to expel them from their homes using violence and terror, it is

22     disingenuous to contend that ethnicity did not define the group

23     targeted for attack, including the female members of the group.

24             Once again, Your Honours, we have to think about what we're

25     really saying here if we conclude that these rapes were not committed

Page 593

 1     with discriminatory intent.  Can we really accept that the Serb forces

 2     had a persecutory switch that was somehow turned off when these rapes

 3     occurred but was activated at all other times?  If the Serb forces

 4     attacking and cleansing Pristina were acting with discriminatory intent

 5     when they murdered Kosovo Albanians and damaged Kosovo Albanian property,

 6     how could they suddenly not be acting with discriminatory intent when

 7     they raped and otherwise abused these three Kosovo Albanian women as part

 8     of the same course of conduct?

 9             Even if there are concerns that the perpetrators may have been

10     motivated by the desire for sexual gratification, this would not preclude

11     a finding of discriminatory intent.  Similar arguments have been

12     dismissed by the Appeals Chamber previously.  And I refer to the Kunarac

13     appeal judgement, paragraphs 153 and 155, finding that if a rape

14     perpetrator's motivation is sexual, this does not preclude a finding that

15     the rape was carried out with one of the prohibited purposes for torture.

16     We say a similar analysis applies here in the context of persecution.

17             Further, as confirmed by the Krnojelac trial judgement,

18     paragraph 435, discriminatory intent for persecution need not be the

19     primary intent with respect to the act, although it must be a significant

20     one.  I also refer Your Honours to the Kunarac appeal judgement once

21     again, paragraph 153 and 155, for similar reasoning in the context of the

22     crime of torture.

23             The relief we've requested in relation to ground 4 is that

24     Pavkovic, Sainovic, and Lukic should be convicted of the Pristina sexual

25     assaults as a crime against humanity by way of persecution pursuant to

Page 594

 1     JCE III.

 2             On correcting the Trial Chamber's error in its discriminatory

 3     intent analysis, all of the elements of persecution as a crime against

 4     humanity will be met.  The Trial Chamber made a general finding that the

 5     crimes in Pristina were part of the widespread and systematic attack on

 6     the Kosovo Albanian population and that the physical perpetrators knew or

 7     took that risk.  That's Volume II, paragraphs 889, 1240 to 1241.

 8             With respect to the responsibility of the JCE members for the

 9     Pristina rapes, the Trial Chamber made findings that the crimes were

10     committed by the VJ and/or MUP personnel.  Volume II, paragraph 889.  The

11     Trial Chamber also found that all of the indicted crimes of the VJ and

12     MUP are attributable to each of the JCE members.  That's Volume III,

13     paragraphs 468, 783, and 1132.

14             When it comes to the foreseeability of the Pristina sexual

15     assaults for the purposes of JCE III, I refer to the submissions that

16     I've already made today in respect of Sainovic and Lukic as supplemented

17     by our appeal brief.  And regarding Pavkovic, on Tuesday, my colleague

18     Mr. Schneider answered Your Honours' question as to why the Pristina

19     rapes were foreseeable to him.

20             In conclusion, we ask Your Honours to make it clear in your

21     judgement that this Tribunal will not subject sexual violence crimes to

22     higher standards of foreseeability or higher proof requirements for

23     discriminatory intent than other violent crimes.  We also ask you to make

24     it clear, as you have consistently done before, that this Tribunal

25     recognises and appropriately sanctions the many forms of violence the

Page 595

 1     victims in this conflict experienced, men and women alike, violence

 2     inflicted because of their status as members of the targeted population.

 3             That concludes my submissions, Your Honours.

 4             JUDGE LIU:  Ms. Jarvis, concerning the so-called opportunistic

 5     sexual assault, I would like you to compare with the case in ICTR, that

 6     is Rukundo case.  Although where the contextual circumstances is

 7     genocide, the majority of the Appeals Chamber still did not convict the

 8     accused as rape.

 9             MS. JARVIS:  Yes, Your Honour.  We're aware of the Rukundo

10     precedent, and, Your Honours, I think it would be important to say that

11     of course each case has to be taken on a case-by-case basis having regard

12     to its own contextual factors.  In the context of Rukundo, as I recall

13     the decision, the Appeals Chamber was looking at one incident of rape or

14     sexual assault, I think it indeed was, and it was unable to find by

15     majority -- there were of course different opinions on the Bench in that

16     case, but the majority was unable to find that it was sufficiently

17     connected to the broader attack to find that it constituted an act of

18     genocide as I recall.

19             In this case, Your Honour, for all the reasons that I've given,

20     it is entirely different.  We are talking about a violent ethnic

21     cleansing campaign involving thousands -- tens of thousands of armed

22     forces going door-to-door to expel the population.  In this situation, we

23     say it really is at odds with everything we know about the way the world

24     operates, the way conflict operates, the way violent expulsion campaigns

25     operate, to find that sexual assault would not even be foreseeable as a

Page 596

 1     possibility.  Indeed, all of the other Trial Chambers' findings point in

 2     that same direction.  They accepted that this wasn't some separate

 3     opportunistic isolated act.  Otherwise, they would not have found that it

 4     formed part of the widespread and systematic attack.  They accepted that

 5     the crimes, apart from the Pristina ones, which is subject to our

 6     ground 4, were committed with discriminatory intent.  Again, something

 7     that shows these were part and parcel of the campaign.

 8             In those circumstances, Your Honours, we ask you, in correcting

 9     the Trial Chamber's legal error, to really ask yourselves whether you are

10     satisfied that these acts were foreseeable and that they were committed

11     with discriminatory intent.  And for all the reasons that I've given, we

12     say your answer should be yes.

13             JUDGE LIU:  Thank you.  Judge T also has a question.

14             JUDGE TUZMUKHAMEDOV:  Thank you.  Ms. Jarvis, this may be a

15     recurring theme from yesterday, but yesterday I asked a question of your

16     colleague Ms. Kravetz about the possible, if identifiable, specific

17     exclusion by the Trial Chamber of the possibility that other factors

18     during the armed conflict, apart from sexual assaults or murder or

19     damage, and destruction of religious objects, for that matter, could have

20     contributed to the displacement of at least some of the 700.000

21     Kosovo Albanians.  And my question yesterday was initially answered by

22     Ms. Kravetz, and then after the break, having done some homework,

23     Mr. Wood supplemented her initial answer with reference to particular

24     paragraphs of different volumes of judgements, thus implicitly and

25     discreetly, and in very polite manner, inviting me to do some homework

Page 597

 1     which I had to do even though at the expense of a glass of wine over

 2     supper.  And I think that after this homework the question remains,

 3     because looking at the paragraphs to which Mr. Wood directed my

 4     attention, I discovered only one very specific, up to a single number,

 5     reference to the numbers of Kosovo Albanians who crossed the border from

 6     Kosovo into Albania and Macedonia, and that was referenced to reports

 7     that were sent by the MUP personnel on the ground through the MUP

 8     channels to Belgrade headquarters, and that number was 715.158 during the

 9     period from 24 March to 1 May.

10             My further accomplishment while working on that home assignment

11     proved that the Trial Chamber in paragraph 1175 of Volume II, which

12     Mr. Wood directed my attention to, was mindful of the fact that people

13     may have left their homes for different reasons and there were several

14     reasons unrelated to the primary reason of crimes including sexual

15     assault.

16             So I guess my question remains, while the Trial Chamber Volume II

17     is using the language of almost 700.000 Kosovo Albanians being displaced,

18     your language was different and twice you referred to forcible

19     displacement of, and I quote, "upwards of 700.000 humans."  So I guess my

20     question remains, that is whether you could direct me to the

21     Trial Chamber where it beyond reasonable doubt, based on evidence other

22     than reports of the MUP, made a conclusion that the displacement of

23     almost or upwards of 700.000 could be attributed to the common plan of

24     members of JCE.  Thank you.

25             MS. JARVIS:  Your Honour, it may be that that's a question we

Page 598

 1     could come back to you with perhaps after the break or during our reply

 2     as I would need to take some time to check the -- the judgement and the

 3     evidentiary records.

 4             JUDGE TUZMUKHAMEDOV:  Certainly, but not at the expense of your

 5     lunch.

 6             MS. JARVIS:  No, Your Honour, I think it's quite enough that you

 7     had to take up time last night.  We certainly won't interfere with lunch

 8     plans today.  But given the history of this and given the answers that

 9     have already been given to you by my colleagues, Ms. Kravetz and

10     Mr. Wood, I think it would make most sense and would be of most

11     assistance to Your Honours if we could have a moment to consider our

12     answer and get back to you with that.  Thank you.

13             JUDGE LIU:  Well, it seems to me there's no questions from the

14     Bench.

15             MR. MILANINIA:  Good morning, Your Honours.  Your Honours, as

16     Mr. Kremer has indicated earlier this morning, I intend to cover very

17     briefly ground 2 of our appeal concerning the acquittal of

18     General Lazarevic for aiding and abetting the murders in Korenica, Meja,

19     and Dubrava.

20             THE INTERPRETER:  Kindly slow down for the sake of the

21     interpreters, please.  Thank you.

22             MR. MILANINIA:  Your Honours, the Trial Chamber's legal error

23     which caused it to acquit General Lazarevic of these crimes can be found

24     at Volume III, paragraph 928 of the judgement where it specifically

25     requires that General Lazarevic be aware that VJ and MUP forces were

Page 599

 1     going to commit murders at the specific crime sites at issue.

 2             Your Honours, this Tribunal has rejected this type of precision

 3     for the mens rea of aiding and abetting.  The mens rea for aiding and

 4     abetting only requires awareness of the likelihood that the crime will be

 5     committed and that one's acts and omissions will contribute to that

 6     crime.  It does not require, Your Honours, awareness as to where, when,

 7     or even how that crime will be committed.

 8             This principle was enunciated in the Simic appeals judgement at

 9     paragraph 86, and was further explained in the Oric trial judgement at

10     paragraph 288, which explicitly noted that the aider and abettor need not

11     foresee "the place, time, and number of the precise crimes."

12     Your Honours, I also refer you to paragraphs 37 and 38 of our appeals

13     brief for additional legal support.

14             When applying the correct standard in this case, the

15     Trial Chamber made clear findings that General Lazarevic was aware that

16     murders were likely to be committed by his VJ forces.  Indeed, the

17     Chamber admits at Volume III, paragraph 928, that General Lazarevic was

18     aware of VJ members killing Kosovo Albanians in some instances.  That

19     knowledge, Your Honours, was established by the Chamber's findings that

20     throughout 1998 and 1999 and before the killings at issue,

21     General Lazarevic was constantly informed of VJ involvement in the murder

22     of Kosovo Albanian civilians.

23             Your Honours, we detailed those findings in full in our brief at

24     paragraphs 49 to 47 [sic].  However, for your convenience, I'll quickly

25     highlight a few of those.

Page 600

 1             The Trial Chamber found that at the end of 1998,

 2     General Lazarevic knew of VJ involvement in the killings of Kosovo

 3     Albanian civilians.  For instance, he was informed of UN Security Council

 4     Resolution 1199 which noted that excessive and indiscriminate force by

 5     the VJ had resulted in numerous civilian casualties.

 6             From the beginning of the 1999 campaign, VJ forces continued to

 7     target and kill Kosovo Albanian civilians.

 8             For example, Your Honours, by the end of March 1999, a few days

 9     into the campaign, General Lazarevic was informed of the killing of

10     Kosovo Albanians in the village of Zegra.

11             A week later, at the start of April 1999, General Lazarevic was

12     aware of a press release stating that Serb forces were responsible for

13     killing Kosovo Albanians in the villages of Pudojevo, Pec, and in the

14     Orahovac municipality.

15             A few days later, on April 3rd, 1999, General Lazarevic himself

16     noted the receipt of numerous criminal reports including those for

17     murder.

18             And, Your Honours, a few weeks later, on April 26, 1999, the day

19     before the massacres in Korenica and Meja, General Lazarevic was informed

20     that his subordinates may have executed 20 Kosovo Albanian civilians in

21     the village of Mali Alas just a week earlier.  And approximately one

22     month later, on May 24th, 1999, after the murders in Korenica and Meja,

23     and a day before the murders in Dubrava, General Lazarevic himself issued

24     a report discussing murders being committed throughout the Kosovo

25     campaign at mixed MUP-VJ military check-points and warning about future

Page 601

 1     crimes.

 2             Your Honours, General Lazarevic was also aware that a central

 3     component of the 1999 campaign was a use of force and violence against

 4    Kosovo Albanian civilians.  You can find that at Volume III, paragraphs 855

 5     and 924.

 6             The use of violence was particularly likely in the Reka Valley

 7     operation, during which the massacres in Korenica and Meja occurred,

 8     given that the operation was specifically undertaken to revenge the

 9     killing of five policemen on April 22nd, 1999.  You can find that at

10     Volume II, paragraphs 168 and 179.

11             Your Honours, to conclude my remarks on the Chamber's findings

12    regarding mens rea, I simply remind you that these are examples of a sample

13     of the Chamber's findings concerning General Lazarevic's knowledge of the

14     murders of Kosovo Albanian civilians by the VJ.

15             For the Chamber's findings concerning actus reus, Your Honours, I

16     refer you to our written submissions and also Volume III, paragraphs 923,

17     829 and 925, which discuss how, with this knowledge, General Lazarevic

18     ordered the VJ to operate in Kosovo in 1999 and continued throughout May

19     and June to participate in planning the joint operations.

20             I wish to make one final note before I pass the podium to my

21     colleague Mr. Kremer that with regards to the specific direction

22     requirement established in the Perisic appeal judgement, I simply note

23     and incorporate the detailed submissions made by my colleague

24     Mr. Marcussen on Wednesday.  To summarise Mr. Marcussen's points, there

25     are four cogent reasons to depart from the Perisic appeals judgement.

Page 602

 1     Further, to the extent specific direction is an element of aiding and

 2     abetting, it was established implicitly in this case, first,

 3     General Lazarevic was on the ground in Kosovo during the campaign in

 4     which the murders were committed.  For this reason alone, his acts and

 5     omissions must be considered proximate to the crimes.  Second,

 6     General Lazarevic must be considered a proximate aider and abettor as he

 7     was the commander of the forces involved in the murders.  And lastly, as

 8     noted by Mr. Marcussen on Wednesday, he detailed the relationship between

 9     General Lazarevic acts and conduct and the crimes committed in Korenica,

10     Meja, and Dubrava.  Accordingly, Your Honours, the culpable link between

11     General Lazarevic's acts and omissions and the murders were established

12     in this case.

13             Your Honours, due to the brevity of time and in order to enable

14     Mr. Kremer to do a fuller submission on sentencing, that concludes my

15     submissions on ground 2.

16             JUDGE LIU:  Thank you.

17             MR. MILANINIA:  Thank you.

18             MR. KREMER:  I will deal with ground 6, the Prosecution appeal

19     from the sentences imposed by the Trial Chamber on the accused.

20             Your Honours have heard that in a little over two months,

21     beginning in late March 1999, the accused together, through their

22     individual contributions, ruined the lives of over 700.000 Kosovo

23     Albanians by forcing them from their homes and displacing them into

24     Albania, Macedonia, and Montenegro.  The sentences of 22 years'

25     imprisonment for the JCE members Sainovic, Pavkovic, and Lukic and

Page 603

 1     15 years for the aider and abettor Lazarevic were wholly inadequate and

 2     manifestly disproportionate to the gravity of the crimes and their role

 3     and degree of participation.  It is our submission, as set out more fully

 4     in our brief, that the Appeals Chamber should set aside these sentences

 5     and substantially increase them for each of the four accused.

 6             One cannot sensibly talk about the Chamber's errors in sentencing

 7     without first discussing the crimes for which the accused were convicted.

 8     Throughout the week and even this morning, the Chamber has received but a

 9     glimpse of the scale and cruelty of the crimes committed against Kosovo

10     Albanians in 1999, as well as the systematic and premeditated nature of

11     those crimes.

12             The Chamber has also received submissions regarding the role each

13     accused played in orchestrating and executing these crimes.  As the

14     Chamber has already heard, on 24 March 1999 and under the cover of the

15     NATO bombings, VJ and MUP forces launched a co-ordinated campaign of

16     violence and terror throughout Kosovo intended to expel the Kosovo

17     Albanian population.  Almost every major town in Kosovo was attacked in

18     the campaign's first three days.  Over 600.000 Kosovo Albanians were

19     expelled by the end of the campaign's second week.  By the beginning of

20     June 1999, the Chamber found that the forcible displacement and other

21     crimes were committed by Serb forces in over 27 towns and villages

22     throughout 13 representative municipalities.

23             Today I will give you a brief picture of the scale and nature of

24     these crimes and their impact on victims.  I will not -- try not to

25     repeat what has been said earlier this week or this morning, and I will

Page 604

 1     start with Pristina, which exemplifies the crimes committed throughout

 2     the larger towns in Kosovo.

 3             The attacks in Pristina can be found in Volume II, paragraphs 801

 4     to 890.

 5             On March 24th, 1999, and simultaneous to the beginning of the

 6     NATO attacks, the VJ and the MUP and other armed Serb forces began their

 7     attack on the large Kosovo population in Pristina.  Months and weeks in

 8     advance of the attacks in Pristina, VJ and MUP forces laid the groundwork

 9     for the mass expulsion campaign through the secret arming and disarming

10     process and by reinforcing MUP, VJ, and Serb military forces in and

11     around Pristina despite the absence of significant KLA presence in the

12     area.

13             From the outset, Kosovo Albanians were subject to threats and

14     acts of violence, including beatings, murder, the looting and burning of

15     homes, the sexual abuse of women, and forced evictions.  I refer you to

16     Volume II, paragraph 885.

17             VJ and MUP forces targeted and murdered prominent Kosovo

18     Albanians as a clear message to other civilians of what was to come and

19     to frighten them to flee.  Volume II, paragraph 823.

20             Expulsions were an almost daily occurrence from the 24th of March

21     until at least 3 April 1999.  And that's found in Volume II,

22     paragraph 817 to 832.

23             In some instances, armed VJ and MUP forces went from home to home

24     forcibly evicting Albanians into the streets and threatening them to

25     leave.  Your Honours, the following slide is a quote from K63's written

Page 605

 1     statement, Exhibit P2443.  K63 was a Kosovo Albanian found credible and

 2     relied upon by the Trial Chamber.  I refer you to paragraphs 805 and 839

 3     of Volume II.  He and his wife, K62, who you've heard about already, she

 4     was a victim of the Pristina rapes, resided in Pristina before being

 5     forcibly expelled.  He said in the statement:

 6             "I saw police going to flats and ordering the Albanians out.

 7     They would say, 'Go to Albania, Kosovo is not your land.'  I saw that

 8     once people left their flats with nothing more than a bag of food and

 9     clothing, that the police moved in and positioned themselves in those

10     flats."

11             Dr. Emin Kabashi, another Albanian resident in Pristina, noted

12     that he received calls from Serbs telling him to leave for Albania or

13     else he would be killed.  Volume 2, paragraph 828.

14             Once the Albanians were forced from their homes, VJ and MUP

15     forces in Pristina put doors -- put signs on doors of vacated Albanian

16     homes, stating:  "This is a MUP apartment."

17             Many of these homes were then occupied by the VJ and MUP

18     themselves and used to house official organs of the FRY and Serbian

19     government.  Volume II, paragraphs 832 and 833.  Daily, thousands of

20     Kosovo Albanian Pristina residents were herded into the centre of town

21     and formed into a convoy.  As they left the town centre, carefully

22     positioned policemen and soldiers pointed their weapons to direct them

23     and the flow of the Kosovo Albanians.  Volume II, paragraph 841, 848,

24     849, and 885.

25             The convoys were directed down the main road past exit points

Page 606

 1     with armed Serb forces to the town's train centre -- or train station.

 2     Volume II, paragraph 850.  Kosovo Albanians who attempted to flee the

 3     convoy were mistreated or killed.  Snipers were positioned in a nearby

 4     building.  Volume II, paragraph 846.  Thousands of Kosovo Albanians from

 5     the Pristina municipality gathered at the train station where they were

 6     forced onto trains or onto buses outside the station and taken to the

 7     Macedonian border.  Volume II, paragraphs 852 to 864.

 8             Nazlie Bala, a Kosovo Albanian resident of Pristina, noted that

 9     the train that she was forced onto carried armed MUP and VJ personnel on

10     the first and last cars.  The train was so crowded, she said, that it was

11     difficult to breathe.  Volume II, paragraph 854.

12             Dr. Kabashi was at the train station for three days and three

13     nights before he was forced to board a goods train that took him to the

14     Macedonian border.  He saw five to 12 trains arriving at the station

15     every day, leaving with people who were forced onto the train by the

16     police.  He noted that the Albanians were herded like cattle.  Volume II,

17     paragraph 856.

18             The Chamber concluded that during the displacement campaign, the

19     train schedules were purposefully modified so that a greater number of

20     trains than usual would arrive at Pristina carrying more than the usual

21     number of cars.  These changes demonstrated a high level of co-ordination

22     between not only the VJ and MUP forces carrying out the displacement

23     campaign but also the railway agencies.  That's at Volume II,

24     paragraph 854.

25             At stops during the train journey to the border, the Kosovo

Page 607

 1     Albanians were subject to abuse and threats.  The trains were surrounded

 2     by Serb forces.  VJ and MUP forces shouted insults at the Kosovo

 3     Albanians, cursing at them and shouting, "Kosovo does not belong to you,

 4     Albanians.  It belongs to Serbs.  We're going to kill you, Albanians."

 5     Volume II, paragraph 859.

 6             When the trains reached the Macedonian border, the Kosovo

 7     Albanians were told to disembark, form a line and walk in the middle of

 8     the train tracks to avoid land mines.  Their identity documents and

 9     passports were seized and destroyed.  Finally, at gunpoint, the Kosovo

10     Albanians were forced to cross the border into Macedonia.  I refer you to

11     paragraph -- Volume II, paragraphs 860 to 863, and 973.

12             I highlight the written statement of Dr. Kabashi, Exhibit 2252,

13     which was used in the trial judgement and this is before you now.  And I

14     think it poignantly sets out the result and the impact of the victims who

15     were forced to leave Pristina and Kosovo.  He said:

16             "I did not want to leave Kosovo.  We left because we were forced

17     by the actions and words of the Serb police and army to leave.  As a

18     family, we were not organised to fight.  I do not know who can stay in

19     Kosovo when threatened by gun.  The population was totally undefended.

20     We were mainly the elderly, women, and children.  If you had seen the

21     sights at the train station in Bllaca, you would have thought that all of

22     the children in the world had gathered there.  The reality of the

23     situation was displayed at the railway station and at Bllaca in that

24     there was not a single person who was not in tears.  This was not a road

25     where these columns passed -- there was not a road where these columns

Page 608

 1     passed where there were not dead people."

 2             The Trial Chamber found that the breadth of the crimes and the

 3     organised nature of the forced expulsions of Kosovo Albanians in the

 4     Pristina municipality were a result of significant planning and

 5     co-ordination at the highest levels of authority.  Volume II,

 6     paragraph 888.

 7             And as my colleague Ms. Jarvis described this morning and you've

 8     heard earlier in submissions this week, Sainovic, Pavkovic, Lukic, and

 9     Lazarevic were all in Pristina town during these events.

10             Let me now turn briefly to my second example, the VJ MUP attacks

11     on Orahovac municipality.  These illustrate how the campaign of terror

12     and violence against the Kosovo Albanians was implemented in smaller

13     towns and villages throughout Kosovo and that the attacks on Pristina and

14     other large towns were not committed in isolation.

15             On March 25th, 1999, the day after the attacks were launched in

16     Pristina, VJ and MUP forces launched a wave of attacks in the Orahovac

17     municipality, on the towns of Celina, Pirane, Bela Crkva and Mala Krusa,

18     four towns located in the south-west region of Kosovo near the province's

19     border with Albania.

20             As has been discussed this week, these attacks were ordered by

21     the Joint Command two days earlier, directing a joint action between the

22     549th Motorised Brigade and the MUP.  That's Volume II, paragraph 296.

23             On the morning of March 25th, VJ tanks together with MUP forces

24     began shooting towards Bela Crkva as a warning to Albanian civilians to

25     leave the village.  Serb forces then entered the village and together

Page 609

 1     with local police set Kosovo Albanian houses on fire using petrol and

 2     flame throwers.  Upon hearing the shooting, Kosovo Albanian villagers

 3     began to flee to the Belaja stream to conceal themselves using the

 4     stream's high banks.  And that's Volume II, paragraphs 341 and 343.

 5             MUP forces followed the villagers and began shooting at them with

 6     automatic weapons, killing at least 10 civilians, including women and

 7     children, while shouting, "Fuck your mother.  Ask NATO for help now."

 8     Volume II, paragraphs 346 and 348.

 9             Of the remaining villagers, the women and children were separated

10     from the men and ordered towards the direction of Albania.  The men were

11     ordered to strip to their underwear, robbed of their valuables, and had

12     their passports, identity cards and driver's licenses destroyed.  After

13     being forced to climb down into the stream, at least 42 men were

14     summarily executed.  Volume II, paragraphs 350 to 354, 380 to 382, and

15     1161.

16             Just south of Bela Crkva in the nearby town -- village of Celina,

17     a similar matter of events unfolded simultaneously and these have been

18     dealt with by Mr. Marcussen in his submissions.  Simultaneous to the

19     attacks in Celina and at Bela Crkva, VJ and MUP forces surrounded the

20     village of Mala Krusa.  VJ soldiers shelled the village, then MUP forces

21     entered the town, looting and burning homes.

22             Again the villagers fled to the woods where they were followed by

23     the -- or found by the MUP and forced to return.  The women and children

24     were separated from the men.  The men were put into a barn, men including

25     teenagers, mentally and physically disabled, and elderly.  Before they

Page 610

 1     were put in a barn they were robbed of their valuables and their identity

 2     documents and then they were summarily executed, and the barn was

 3     subsequently burned to the ground after it had been set on fire by the

 4     MUP.  And that's all found at paragraphs 402 to 408 -- or to 409,

 5     paragraphs 432 and 1161.

 6             These examples are but two of the many instances of crimes

 7     committed by VJ and MUP forces over the two-month campaign of violence

 8     and terror aimed at driving out the Kosovo Albanian population.  The full

 9     record of the Trial Chamber's factual findings is found in Volume II from

10     paragraphs 1 to 1178.  I won't repeat, as my colleague Ms. Jarvis has

11     taken you to it this morning, paragraph 1178 which is the summary of the

12     factual findings that the Chamber made outlining its conclusions

13     regarding the action.  I do just want to point out that in the -- I think

14     penultimate sentence, the Chamber said it was the deliberate actions of

15     these forces during this campaign that caused the departure of at least

16     700.000 Albanians from Kosovo in the short period of time between the end

17     of March and the beginning of June 1999.

18             The responsibility of the accused has been spoken about for the

19     entire week.  Each of them was at a higher level of authority and was

20     responsible for the crimes in Kosovo.  Each accused contributed to the

21     commission of crimes in 1999 and for those contributions was found guilty

22     as a JCE member or as an aider and abettor.

23             Given the time, I don't plan to review their contributions.

24     They've been covered several times by both the Prosecution and the

25     Defence, and I'll just close my remarks very briefly by dealing with the

Page 611

 1     error and why it should be corrected.

 2             The Chamber erred in imposing sentences, in our submission, that

 3     were manifestly inadequate and disproportionate to the crimes committed.

 4     If you look at the Chamber's sentencing analysis, you will find that it

 5     was cursory and failed to properly account for the certain mandatory

 6     factors when assessing the seriousness of crimes.  Specifically, the

 7     Trial Chamber's analysis on the gravity of offences was limited to

 8     six paragraphs and it failed to address the discriminatory nature of

 9     crimes and their impact on the victims.  And I gave you the illustration

10     of the impact of victims because although I only quoted from two or

11     three, that that is multiplied several hundred thousand times.  Indeed,

12     there is virtually no decision on the brutal nature of the crimes or the

13     effects of the crimes on the Kosovo Albanian victims and their relatives.

14     The Blaskic Appeals Chamber judgement, paragraph 683, found that these

15     are mandatory considerations when dealing with gravity.

16             The Chamber's cursory sentencing analysis is exemplified by the

17     decision to apportion sentences strictly on the basis of individual

18     criminal liability and the specific mode for which the accused was

19     convicted.

20             The Chamber did not individualise the sentence based on the

21     individual accused's position, his contribution or even the crimes for

22     which he was convicted, which would have been an obvious analysis that

23     would have been required.  At Volume III, paragraph 1175 of the

24     judgement, under the heading "Gravity of Crimes," the Chamber erred by

25     taking into account each accused's convicted mode of liability and

Page 612

 1     ignoring specific contributions.

 2             JUDGE LIU:  Mr. Kremer, I'm afraid that your time is up.

 3             MR. KREMER:  If Your Honour could give me one minute, I assure

 4     you I will finish.

 5             JUDGE LIU:  Yes, one minute.

 6             MR. KREMER:  Thank you.  And as Your Honour just heard from my

 7     colleague Ms. Jarvis, the accused were convicted of different offences.

 8     Pavkovic was convicted for sexual offences and our appeal points out that

 9     Lukic and Sainovic were acquitted.

10             And the Trial Chamber could have taken this into account.  It

11     also could have taken into account the brutality, as I've pointed out,

12     and the fact that each played a distinct, different, and important role

13     but some assessment was required for that.  But ultimately the -- the

14     issue is:  Were the sentences of 15 years and 22 years respectively for

15     the aider and abettor and the JCE members disproportionate to the

16     seriousness of the crimes?  Our submission is that common sense tells you

17     that it was disproportionate.  Twenty-two years and 15 years for the

18     size, nature of the crimes, 700 [sic] lives ruined as a result of

19     premeditated and violent actions in a very short time, suggests that

20     particularly given the -- the additional crimes that went along with it

21     in order to promote the violence and terror to get the people to flee

22     justify more severe sentences.  In fact, we urge the Chamber to look at

23     imposing the most severe sentences that the Statute allows.

24             Subject to any questions, that would be my remark.

25             JUDGE LIU:  Thank you very much.  We will have a break and we


Page 613

 1     will resume at 11.00 so as to hear the response from the appellants.

 2                           --- Recess taken at 10.35 a.m.

 3                           --- On resuming at 11.00 a.m.

 4             JUDGE LIU:  Now we are going to hear the response from the

 5     appellants.  Counsel for Mr. Sainovic.

 6             MR. PETROVIC: [Interpretation] Thank you, Your Honour.  I will

 7     address the Honourable Appeals Chamber on the grounds 1 and 3 of the

 8     Prosecution appeals brief, while my learned friend Mr. Fila will talk

 9     about the 6th ground.

10             Although my learned friends did not address the first ground of

11     their appeal today, I will, however, make two or three points that the

12     Chamber should consider when assessing whether the first ground of appeal

13     of the Prosecution is founded or not.

14             In drafting the third amended indictment which was the basis for

15     all the allegations in this case, the Prosecutor failed to or omitted to

16     as part of ground 5 include the paragraphs which would detail the

17     punishable conduct, and this is paragraph 76, which should have included

18     paragraph 72 describing the acts of deportation and forcible transfer.

19     This was a discernible error on the part of the Prosecution which was

20     noted early on at trial, as early as the 30th of October, 2006.  The

21     President of the Trial Chamber drew the attention of the Prosecution to

22     that defect and said that paragraph 76 does not contain the necessary

23     references for paragraph 72 detailing the acts of deportation and

24     forcible transfer.  The trial attorney in that case said that he

25     understood what the Trial Chamber meant but had no response to offer, and

Page 614

 1     that was how the discussion ended.

 2             Now, the next occasion that the Prosecution had for that same

 3     issue was the Trial Chamber's decision on 98 bis, that is to say, the

 4     98 bis decision by the Trial Chamber, which clearly states that the

 5     Trial Chamber found that the specific details concerning the deportation

 6     and forcible transfer contained in paragraph 72 was simply not included

 7     in ground 5 -- in count 5 of the indictment.  This was the gist of what

 8     the 98 bis decision said.  The Prosecution heard that.  They had an

 9     opportunity to appeal the decision, but that was never done.  The first

10     time when the Prosecutor sought to rectify this defect was in the appeal

11     against the trial judgement.

12             In our view, the failure on the part of the Prosecution to

13     intervene in these two -- on these two occasions at trial preclude the

14     Prosecution from the possibility to do so at this appeals stage, to

15     redress this fault on their part which should have been properly

16     addressed at trial.  Any intervention at this stage would be directly

17     detrimental and prejudicial for the accused.  On this basis, we submit

18     that the Appeals Chamber should dismiss this Prosecution ground of

19     appeal, and I refer you for the details to our reply to the Prosecution

20     brief.

21             With your leave, Your Honours, I'd like to address briefly what

22     was stated here today under ground 3 of the Prosecution appeal, which is

23     divided into two parts.  The first one seeks that the legal standard

24     applied be rectified, and the second has to do with the establishment of

25     the circumstances which should lead to a different finding.  This refers

Page 615

 1     to the factual findings contained in ground 3.

 2             Although mention was made of this matter over the past couple of

 3     days, I would like to recall in part what in our understanding are the

 4     legal standards that the honourable Chamber should apply in considering

 5     this ground of appeal.

 6             Regardless of what sort of position the Appeals Chamber will take

 7     with regard to the legal standard of foreseeability and possibility,

 8     whether they will adhere to the Brdjanin judgement standard or to the

 9     position advanced in the interlocutory appeals decision in the Karadzic

10     case, there is another additional part of the standard which the

11     Prosecution does not find needs to be challenged and which in our view

12     gives the gist of the reasoning of this count of appeal.

13             The definition which the Prosecution does not find needs to be

14     challenged as part of JCE III speaks about reasonable foreseeability

15     based on the information available to the accused.  Now, this part of

16     definition, information available to the accused, is not to be challenged

17     and in our view is the key issue that can help resolve the situation.

18             What does the Appeals Chamber in the Karadzic case say?  They say

19     that regardless of the application of the possibility standard, the

20     requirements cannot be met where there is a scenario of remoteness.  The

21     possibility that a crime may be committed must be substantial enough in

22     order to be foreseeable to the accused.  What does this clearly state?

23     Well, this clearly states that the Appeals Chamber does not support a

24     comprehensive, limitless definition that the Prosecution advocate.

25             What would be the consequence of the Prosecution's understanding

Page 616

 1     of this matter?  Well, that there is a JCE and that there is the mens rea

 2     for the common purpose and that any other crime may be qualified or

 3     characterized as the crime meeting the requirements for the JCE III.

 4             The consequences that stem from the Prosecution's understanding

 5     of it is automatism.  If there are the requirements and if there is the

 6     act of forcible transfer and deportation as the first part of the joint

 7     criminal enterprise, the standard has been met according to which the --

 8     automatically where what would be foreseeable would also be the criminal

 9     assaults -- the sexual assaults.  We believe that there can be no

10     automatism and that, as is the case everywhere else, evidence needs to be

11     identified supporting the decision.  If we adopted the concept advanced

12     by the Prosecution, we would slip into automatism and this would preclude

13     the need for these specific crimes to be proven to begin with.

14             Now, as for whether these crimes exist or do not exist, this is

15     something that can be assessed on the basis of the available information.

16     The scenario of remoteness alone cannot suffice to attach responsibility

17     for these crimes to the accused.

18             How do these matters stand with regard to our client,

19     Mr. Sainovic?  In explaining these circumstances, at paragraph 472,

20     Volume II, the Trial Chamber concluded that the Prosecution did not

21     adduce evidence which would enable it to find that the sexual assaults

22     were reasonably foreseeable to Sainovic, and what clearly transpires from

23     this paragraph is that the Prosecution -- rather, the Trial Chamber

24     reached its findings by applying the standards from the Kvocka and Krstic

25     cases.  In our view, the Trial Chamber assessed these circumstances

Page 617

 1     carefully and based their findings on it.

 2             Today our learned friends pointed out the existence of three

 3     factors that should serve as evidence:  That it had to be reasonably

 4     foreseeable to Sainovic that within the alleged campaign that was carried

 5     out the acts of sexual assaults would occur, that there was a campaign of

 6     fierce violence, and that on the basis of the existence of this campaign,

 7     there is foreseeability that these crimes would occur.

 8             If we look at the Prosecution appeals brief about Sainovic's

 9     knowledge of this campaign of fierce violence, we will find several

10     statements only referring to 1998, the events at Gornje Obrinje, the

11     events at Racak, the events at Malisevo.  However, all those events, and

12     this is something that we address in detail in our reply, clearly

13     indicate that there was no sexual violence and that there was nothing

14     that could lead to the conclusion that there might have occurred such

15     crimes.  However, the Prosecutor makes a contradictory statement.  Most

16     of the submissions we heard from the Prosecution over the past several

17     days were based on allegations that there was something that existed in

18     1998, and that this something that existed in 1998 could therefore only

19     and exclusively exist in 1999.

20             As for the evidence in relation to 1998, there was nothing that

21     would point to any sort of crime that may be related to sexual violence.

22     We provided our detailed reasoning of this in writing, and I believe that

23     my learned friend Madam Prosecutor conceded that on the basis of the

24     knowledge from 1998, the accused could not have this sort of

25     anticipation.

Page 618

 1             If we were to accept this logic of the Prosecution, if year 1998

 2     were indeed a warning, a basis for such knowledge, then it's clear that

 3     Nikola Sainovic did not have that warning, and it cannot be established

 4     that that type of crime could have been foreseeable based on what he knew

 5     from the time before, before the JCE began.

 6             The Prosecution mention in their brief and also today the strong

 7     animosity between Serbs and Albanians as an indication that all types of

 8     violence, including this type of violence, were all possible, but we do

 9     not find this in information available in 1998.  The Prosecution

10     establishes violence in 1998.  They link it with 1999.  However, this

11     type of violence did not exist in 1998.  The question of animosity is an

12     issue between Serbs and Albanians in Kosovo that goes back decades,

13     perhaps longer.  But the history of the region shows that this animosity

14     does not include the acts discussed here.

15             What is especially curious is the OTP mentions that Sainovic

16     could have assumed that if the same units were in Kosovo that had been

17     present in Bosnia and elsewhere years before, they could commit the same

18     type of act in Kosovo.  It is a big question what exactly Sainovic knew

19     about which units were engaged, what they had done before.  This is a

20     claim that something could be foreseen based on the broadest knowledge of

21     the history in the former Yugoslavia.  In the opinion of this Defence,

22     this foreseeability based on general history is not carry an argument

23     that carries any weight in these proceedings.

24             The Prosecution mentions again today that Sainovic was in

25     Pristina on several occasions.  They mention two dates, 29th March and

Page 619

 1     4th April.  That he was able to see displacements and transfers and could

 2     have, based on that, foreseen sexual assault.  There is no evidence about

 3     what Sainovic had seen.  This is all based on assumptions.  But what

 4     could illustrate the state of mind of Sainovic is that he was in Pristina

 5     on these dates in order to negotiate with Mr. Rugova to try to find a

 6     political solution for the problems in Kosovo.  Linking his visits and

 7     his attempts to resolve the situation through negotiations with what he

 8     might have seen is something we have no evidence of, and this Defence

 9     believes it is completely inappropriate.

10             We therefore believe that the honourable Appeals Chamber should

11     reject the third ground of appeal by the Prosecution.

12             If I may only mention two more things within my time limit.  Of

13     course, the Defence of Mr. Sainovic believes that every act of sexual

14     violence is heinous and deserves the harshest punishment, but we believe

15     also that all the evidence shows that Mr. Sainovic has absolutely nothing

16     to do with such acts.  However, it is also necessary to emphasise that

17     the Prosecution speaks of a campaign that lasts for days, weeks, for

18     months, throughout Kosovo, a campaign that involves over 700.000 people.

19             What do we have in terms of facts concerning sexual assaults?

20     There are two acts, and we do not dispute their weight.  We're just

21     emphasising the number.  The first one is the 29th March, 1999, in Beleg,

22     and the other is in mid-April in Cirez.  It is obvious that these are

23     isolated crimes.  It is obvious that if it is true that hundreds of

24     thousands of people were involved, we have two incidents involving

25     eight victims.  This is not to diminish the suffering of the victims, but

Page 620

 1     this is an indication of the isolated and sporadic character of these

 2     incidents.  The isolated and sporadic character of the incidents refutes

 3     the claim of the Prosecution that Sainovic, together with the others

 4     accused of being involved in the JCE, could have foreseen these acts of

 5     sexual violence.

 6             And very briefly concerning the fourth ground of appeal.  Three

 7     incidents are involved.  Our position is that these incidents show no

 8     discriminatory intent, that the Prosecution is trying to copy-paste the

 9     general characterization of the attacks on these incidents of violence

10     and that these incidents belong in the category of general crime,

11     certainly not crime with discriminatory intent, and there is no basis,

12     absolutely none whatsoever, for accepting this ground of the

13     Prosecution's appeal.

14             Thank you very much, Your Honours.  Mr. Fila will take over now.

15             MR. FILA: [Interpretation] Mr. President, ladies and gentlemen,

16     Judges.  I shall deal with the part of the Prosecution appeal which in my

17     eyes is impermissible and, among other things, immoral.  The reason is

18     this:  At trial, the Prosecution spent two years in prosecution with us

19     and the Trial Chamber.  We saw every witness, every document.  We saw the

20     conduct of the accused, and when all this was over, the appeal brief of

21     the Prosecution asked for at least 20 years' sentence for Milosevic [as

22     interpreted], Sainovic, and others.  Milutinovic, as you know, was

23     acquitted, but Sainovic was sentenced to 22 years, which is the required

24     sentence plus two years.

25             I want to tell you one thing.  I'm probably the oldest lawyer


Page 621

 1     before this Tribunal.  I've been here since February 1996 - I think

 2     Prosecutor Mark Harmon is the only one who's been here longer - and I've

 3     never seen anything like this.

 4             I want to tell you, and I'm proud of this, that the co-operation

 5     we had here between the Prosecution, the Defence, and the Trial Chamber

 6     is absolutely unprecedented.  Let me show you two examples that was in

 7     private session, a discussion between the Prosecution and the

 8     Trial Chamber.  If you want to allow me to do this, we would have to move

 9     into private session.  If not, I will move on.

10             JUDGE LIU:  Yes.  Let's go to the private session.

11                           [Private session]

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 622

 1   (redacted)

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 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23                           [Open session]

24             THE REGISTRAR:  Your Honours, we're back in open session.

25             JUDGE LIU:  You may proceed, Mr. Fila.


Page 623

 1             MR. FILA: [Interpretation] Why did I mention these two examples?

 2     Because I wanted to present to the Appeals Chamber the meaning of

 3     promise.  What does a colleague's and lawyer's word mean if they appear

 4     before this Tribunal?  If we were to say one thing and do another, we

 5     would be politicians.  We would be sitting in the Assembly where nobody

 6     knows what other people are saying or what they are -- what they mean.

 7     This is a serious Tribunal.

 8             What did we gain instead of -- of the consistency?  Milutinovic

 9     was acquitted.  He didn't get 20 years.  He didn't get life.  Can there

10     be -- is there an appeal against that?  No.  Ojdanic got 15.  The

11     Prosecutor appealed and had the right to do that because the sentence is

12     for under 20 years, and what happened?  They gave up on that appeal.

13     This is another situation that you have to have in mind.

14             And the first situation is the one that I'm in with Sainovic.

15     They got what they wanted, and they appealed.  I'm not contesting the

16     part of the appeal that has nothing to do with sentencing.  I'm not

17     contesting that.  They have the right to appeal.  What I am saying here

18     is that the parties to these proceedings are bound by their positions

19     which they present during the case.  If a party to the proceedings voices

20     a position, they have to adhere to that.  Every aberration from any such

21     position introduces elements of legal insecurity into the whole

22     proceedings.  That's why I read the Prosecutor's answer about the

23     interview.

24             You know very well that the accused in the proceedings have the

25     right to be aware of the indictment against him.  They have the right to

Page 624

 1     be informed about their position.  They have the right to adjust their

 2     defence to the nature of the indictment and all the other allegations

 3     against him.  If the Prosecution acts based on the evidence and their own

 4     legal position with regard to sentencing, then the Prosecution does that

 5     based on their assessment of the evidence, and I am emphasising the word

 6     "their own," because in -- in the proceedings, the Prosecution asked for

 7     that sentence because they thought that the entire indictment will be

 8     taken into account and will be the grounds for sentencing.  And this

 9     didn't happen.

10             I cannot imagine as a Defence counsel that the Prosecution, based

11     on the same evidence, because no other new evidence was presented here,

12     and the same legal theory during one phase of the procedure asked for one

13     sentence and then in another phase of the procedure without any evidence

14     and about -- any changes with regard to the position of the accused, they

15     want another sentence.  This is not fair.  This is not professional.

16     This is not how colleagues act.  This is not in keeping with our joint

17     obligation to serve justice and respect the rights of all the parties to

18     the proceedings, meaning the accused and the victims, the Defence, and

19     the Prosecution.  Any aberration from the original position that the

20     Prosecution presented during the first instance case now, in this phase

21     of the procedure, has to be based on other evidence or drastically change

22     legal practice.

23             How is it possible for somebody who did not see those people, who

24     did not see the case file -- or, rather, saw only the case file and has

25     only indirect knowledge about what was going on during the two years can

Page 625

 1     see better than the Prosecutor who was here.  Two of the members of that

 2     first instance Prosecutor's office are now here, Mr. Marcussen and

 3     Ms. Kravetz, and it seems that they have changed their opinion in the

 4     meantime.  You know, in the law that I practice in my own country before

 5     the Special Tribunal which is a Tribunal that tries the cases of drug

 6     trafficking, corruption, and other grave crimes, the Prosecutor asks for

 7     a certain sentence, and when they receive that sentence, they do not have

 8     the right to appeal.  It has never happened.  They can appeal if they

 9     don't like a formulation, the kind of wording, but if they were given the

10     sentencing that they requested, they can't appeal.  How is that possible

11     here?

12             I looked at everything that has been written.  We compared it

13     with what the first instance panel wrote.  What is it that the

14     Trial Chamber didn't see and the Prosecution sitting here before us did

15     see?  Everything is there.  They presented tables to our appeals brief.

16     This is what it says in the sentence.  This is what it says in the

17     judgement.  Let them make their own table as to what they say and what is

18     in the judgement.  If they see any differences and discrepancies, fine,

19     we don't have a problem.  I'm really concerned you know.  At the

20     beginning of indictments for Kosovo, which, unfortunately, apply only to

21     Serbs, there were three politicians besides Sainovic who were accused.

22     Slobodan Milosevic who died in prison because he was indicted the way he

23     was, and he could not stand such a long trial.  I remind you of

24     Judge May's words who wanted only Kosovo to be indicted.  And the second

25     one is Milan Milutinovic who was acquitted.  The third one was

Page 626

 1     Vlajko Stojilkovic who was the minister of the interior in Serbia.  He

 2     killed himself.  And now the only -- or, rather, Slobodan Milosevic died

 3     before he could be tried, presumed innocent.  Milutinovic was acquitted.

 4     It is especially interesting in the position of this Prosecution that

 5     Milutinovic was acquitted and they do not appeal.  Of all the responsible

 6     politicians who were mentioned in the judgement, only Sainovic remains,

 7     and now all of a sudden the Prosecutor wants a different sentence, life

 8     in this case.  They want that to be laid -- to be handed down on

 9     Sainovic.

10             You know, you have in the Bible a story about a goat that the

11     Jews took to the wolves to be eaten and that all the sins will go away

12     with that.  I believe that Sainovic is in the same position, that he is

13     supposed to take the blame for everything that was not done or remains

14     unresolved.  You see, Serbia has the police.  Serbia has the government.

15     The government has the minister of the interior.  It has the prime

16     minister.  Serbia has the president of the republic.  How come that one

17     of the vice-prime ministers in the government, as the Prosecutor alleges,

18     knows everything and the person in charge of the police hasn't a clue

19     about all that, or the president?

20             This is not fair.  This is not humane.  It is not fair to impute

21     to the only one person that remains everything that the Prosecution

22     failed to do successfully with other people.

23             That's why we hear today that the MUP commander -- instead of

24     imputing on Sainovic what Milutinovic was supposed to be charged with,

25     why are we doing that?  Why do we have to blame Sainovic for the sins of

Page 627

 1     Milutinovic?

 2             Vlajko Stojilkovic was in command only of the MUP, not only of

 3     the state security.  He was in command, but he was not so powerful to be

 4     involved in war operations and do everything, whereas the president of

 5     the Republic of Serbia was sitting clueless in a bunker next door to

 6     Slobodan Milosevic.  Slobodan Milosevic and his wife, and the other guy

 7     and his wife, and above them was the Supreme Staff that was allegedly

 8     planning operations unbeknownst to them.

 9             I have learned that if somebody says something - I repeat this

10     once again - if somebody says something, if somebody promises something,

11     they're bound by their words.  Here one man is taking the role of another

12     one.  Milutinovic's exculpated together with the others and they are

13     replaced by Sainovic who is supposed to take their blame.  One day

14     somebody will wonder how come that the Prosecutor kept a person in gaol

15     for seven years.  They ask life sentence for him.  He is acquitted and

16     they don't appeal.

17             When you look at the records of this trial, you will see that I

18     did not stop in my defence of Sainovic.  Every day Prosecutor had

19     something to lay against -- against Sainovic but not against Milutinovic.

20     The proceedings was run in the way as if everybody knew what the final

21     outcome was going to be.  It was in a way tepid.  It was not carried out

22     energetically.

23             If the Prosecutor - and let me repeat one more time - if the

24     Prosecutor in this case based on the evidence available to them and their

25     legal understanding of the sentencing, they will ask for a sentence based

Page 628

 1     on their assessment of the evidence available to them.

 2             And now let me deal with the appeal itself.  The Prosecutor does

 3     not present any new arguments that would justify any aberrations from the

 4     position that they had in the first instance case.  The Prosecutor, when

 5     asking for 20 years for Sainovic, bore in mind a number of facts for

 6     which they deemed that they represent very important evidence on

 7     Sainovic's guilt and sentence, and that those aggravated his position

 8     with regard to the responsibility of the crimes that he was charged with.

 9     This is what the Prosecution claim, that Sainovic obstructed the

10     application of the October agreement.  He refused the entry of the

11     inspection into the barracks.  He did not allow the KLA helicopter to

12     enter Kosovo, that he turned down the proposal that the forces in

13     Malisevo should be reduced, and that the KLA should be deployed in order

14     to -- and he also allowed -- he obstructed negotiations in Rambouillet.

15     All of these allegations in the judgement of the Trial Chamber which --

16     with which we are not satisfied have been rejected.  None of these

17     allegations were accepted by the Trial Chamber in the first instance

18     proceedings.  And now in a very paradoxical way, the Prosecutor is asking

19     for a higher sentence for Sainovic in a situation which is even more

20     favourable for Sainovic than at the time when the Prosecutor asked for a

21     sentence of 20-plus years for Sainovic.

22             The reasons of fairness impose the rejection of that request on

23     the part of the Prosecutor.  In addition to that, the Prosecutor did not

24     present any serious reason why the sentence as has been pronounced is not

25     unfair.


Page 629

 1             And let me now talk about the 700.000 Albanians whose lives were

 2     ruined because they were not at home for a month.  120.000 Serbs who had

 3     been chased away from Kosovo before that and they are still in Serbia,

 4     and those who remain in Kosovo die every day.  Has anybody been charged

 5     with that?  No.  It is not very difficult to explain the situation of the

 6     Albanians -- to the Albanians with indictments against the Serbs, but how

 7     can we explain the situation to the Serbs who fled before NATO bombing

 8     and there are 120.000 of us living in Serbia?

 9             This is all of what I wanted to say and I apologise for being so

10     emotional at moments.  Thank you very much.

11             JUDGE LIU:  Thank you very much.  I believe that we will hear the

12     reply this afternoon by the Prosecution on this very issue.

13             Now for the response by the counsel for Pavkovic.

14             MR. ACKERMAN:  Thank you, Your Honours.  I expect to be quite

15     brief this morning, take up very little time, partly because my

16     colleagues said some of the things that I intended to say.

17             The Prosecution is before you this morning asking you to save

18     them from themselves in a couple of instances, that they made prior

19     decisions and now they've decided they don't like those prior decisions

20     they made so they want you to let them change those decisions.  It

21     reminds me of when I wanted some more time to argue my client's case here

22     and you told me, well, you made that prior decision that you didn't want

23     that time or you would have let us know earlier.  And so, you know, I'm

24     in the same position they are, and what I got, they should get too, it

25     seems to me.

Page 630

 1             The first one of those, of course, is when they deliberately

 2     decided, in the face of Judge Bonomy's almost pleading with them, not to

 3     amend paragraph 76 of the indictment to include the allegations in

 4     paragraph 72, they made that decision, and now after the effect of that,

 5     they want you to let them reverse that and you consider it as if they had

 6     amended the indictment.  You shouldn't do that.  And we argue, of course,

 7     that there was a waiver and I think it's clearly a waiver.

 8             The ground that I want to talk about now is that from ground 4

 9     dealing with the sexual assaults which I talked with you at some length

10     about in answer to the Court's questions, and so I will rely primarily

11     what I said then and what we say in our brief.  However, I really must

12     comment on what we heard this morning.

13             We need to understand that the prerequisite to the sexual assault

14     issues that are the subject of ground 4 is that there must have been

15     proof of a JCE I beyond reasonable doubt.  We say there was not, that

16     even though a JCE can be shown by circumstantial evidence, it's not

17     sufficient that it is a reasonable conclusion available from that

18     evidence but that it is the only reasonable conclusion available from the

19     evidence.  And we think it was not.  And there's a lot of evidence to

20     show that it was not.  The evidence of -- that I mentioned the other day

21     of a number of refugees that were at the border trying to cross and the

22     VJ forces said, No, you go back to your homes.  We'll help you, we'll

23     feed you.  They did.

24             The chaos of war provides an opportunity for the criminally

25     inclined who might be disguised as military personnel to engage in all

Page 631

 1     kinds of criminal acts.  It's essential that the evidence identify the

 2     perpetrators of these crimes that were talked about this morning as

 3     persons over whom the accused have control.  The Prosecution could not

 4     identify the perpetrators of these rapes.  We don't know who they were.

 5     We don't know if they were ever identified and punished, or if they're

 6     alive or walking this earth somewhere free.  We just don't know.  The

 7     Prosecutor needs to make that identification before it can ask that

 8     General Pavkovic be held responsible for what those persons did.  They

 9     must prove that not only were they under his control but that he did not

10     make sufficient efforts to prevent, and if not prevent it did not make

11     sufficient efforts to see that they were identified and punished.

12     Commanders in any war, no matter how hard they try, cannot prevent the

13     commission of crimes.  They just happen.  They must try and when they

14     fail, these -- then sufficient efforts must be made to punish.

15             I want to go very briefly into the sentencing issue.  Clearly

16     there were serious crimes committed in Kosovo in 1999, but it is not the

17     number and the character of those crimes that is important to the issue

18     of sentencing but the identity of the perpetrators and their connection

19     to General Pavkovic.  When the OTP was not able to identify perpetrators

20     in the crimes, they simply referred to them as VJ and MUP forces which is

21     not any kind of an identification at all.  What they're saying when they

22     say "VJ and MUP forces," is that we can't tell you whether these people

23     were with the VJ or with the MUP.  We don't know who they were, so we'll

24     just call them forces of FRY and Serbia.  We just don't know who they

25     were.  And that's endemic in this case, Your Honours.  You look at all

Page 632

 1     the crime base in this case.  There's no firm identification of the

 2     people who were committing the crimes that were being committed.

 3             The second time that the Prosecution has asked you to save them

 4     from themselves is when this morning, after having gotten what they asked

 5     for sentence-wise, they're now asking you, well, we're sorry, we didn't

 6     like what we got from what we asked last time.  Let's try again.  If you

 7     look at the transcript, 26947, in closing arguments in the case, you can

 8     see Prosecutor Hannis saying, "We'd like a sentence of at least

 9     20 years."  Well, they got more than that.  They got 22 for my guy.  And

10     now they're saying, no, that wasn't enough, and Mr. Hannis was wrong, and

11     please save us from ourselves.  A life sentence is not a reasonable

12     sentence.

13             I think sentencing should not be an issue due to the flawed

14     character of this judgement.  It is so factually flawed that sentencing

15     shouldn't even arise as a question.  It should be remembered that

16     Pavkovic provided documents to this Tribunal including the minutes of the

17     Joint Command meetings.  He had nothing to hide.  He gave an interview to

18     the OTP before he was indicted.  He co-operated in the investigation for

19     which he received no credit in the judgement to mitigate that, and you'll

20     see that at paragraph 364 of our main brief.

21             That's all I have to tell you this morning, Your Honours.  I

22     appreciate your attention, and I think our brief filed in response to the

23     Prosecutor's main brief covers everything else that's important.  Thank

24     you very much.

25             JUDGE LIU:  Thank you.  I believe that concludes your response.


Page 633

 1     Thank you very much, especially for your briefness.

 2             I think it's time for us to have a lunch break.  We will resume

 3     at 1.30 this afternoon, at 1.30 this afternoon.

 4                           --- Luncheon recess taken at 11.51 a.m.

 5                           --- On resuming at 1.31 p.m.

 6             JUDGE LIU:  Good afternoon.  We will continue the response from

 7     the appellants.  Counsel for Mr. Lazarevic.

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

 9     will try to provide answers or to respond to some of the submissions that

10     my learned friends indicated in their appeal which concern

11     General Lazarevic, those that they mentioned in their brief and those

12     that they mentioned in their oral submissions today.

13             Our Defence appealed or challenged the first ground of appeal of

14     the Prosecution by maintaining that the Prosecution is wrong in claiming

15     that the Trial Chamber erred in finding that -- in acquitting Ojdanic and

16     Lazarevic of aiding and abetting murder.  Our Defence joins the

17     submissions made by my learned friend Mr. Petrovic, who spoke earlier

18     today about the failure on the part of the Prosecution to relate all the

19     material aspects relating to this -- to these acts in the indictment.  I

20     would here like to refer the Appeals Chamber to the other reasons we

21     provided in our reply to the appeal brief which can be found at

22     paragraphs 5 through 16 of our reply to the Prosecution brief.

23             I would now like to address the second ground of appeal of the

24     Prosecution, which is the one that they addressed orally earlier today

25     where they presented their views and arguments supporting the position

Page 634

 1     that General Lazarevic should have been convicted of aiding and abetting

 2     in the crime of murder.

 3             In our view, the Trial Chamber did not err in acquitting

 4     General Lazarevic of aiding and abetting murder.  The Prosecutor spoke of

 5     the specific direction standard again today, which is an issue that was

 6     discussed the day before yesterday when we were presenting our appeal and

 7     the Prosecution were giving their reply.  Should you apply a reasonable

 8     standard of specific direction, in that case it would be quite clear and

 9     unequivocally so from the totality of evidence that General Lazarevic

10     cannot be responsible for aiding and abetting murder.

11             Although I am fully convinced that it is quite justified and

12     legitimate to apply the specific directions standard to

13     General Lazarevic, even if we were to disregard that principle, still

14     there are ample reasons to acquit General Lazarevic of this crime.  In

15     other words, in keeping with the Trial Chamber's finding acquitting him

16     of that responsibility.

17             We heard submissions today that for aiding and abetting murder,

18     the sufficient standard would have been that General Lazarevic was aware

19     of the probability or the likelihood that murders would occur.  I believe

20     that this is an impermissibly broad interpretation of the standard,

21     because in that case any participant in a war could automatically be

22     thought to have the mens rea that murders are likely to happen.

23             In any war situation, improper conduct may occur, including

24     murder.  That is precisely why preventative orders were issued by

25     General Lazarevic, and this is the very purpose of the criminal reports

Page 635

 1     that were filed against the perpetrators of crimes before the relevant

 2     judiciary bodies.

 3             In our view, the standard there was reason that he knew which

 4     could be applied under Article 3 [as interpreted] of the Statute, whereas

 5     when we speak of individual criminal responsibility under Article 7(1),

 6     there, at the very least, the accused must be aware of the fact that his

 7     action or omission may assist the perpetrators in the commission of

 8     crimes.  The Prosecution did not succeed in proving that this standard

 9     was met either.

10             I would like to now address the specific locations that my

11     learned friend from the Prosecution spoke of.

12             Your Honours, my colleague tells me that we have Article 3 of the

13     Statute as recorded in the transcript whereas I referred to Article 7(3),

14     and I'm referring to page 63, line 7.

15             Your Honours, with your leave I'd like to briefly discuss the

16     locations mentioned by my learned friend which were not found beyond a

17     reasonable doubt, absolutely not, as places where General Lazarevic aided

18     and abetted murder.  The Trial Chamber quite rightly found that none of

19     the evidence adduced proved that General Lazarevic was aware that the MUP

20     or VJ forces were going into the specific crime sites in order to commit

21     killings.  Specifically, my learned friend mentioned Korenica and Meja in

22     the Djakovica municipality.  The evidence shows that the VJ did not

23     participate in the incidents in and around Korenica and Meja on the

24     27th of April, 1999, in the municipality of Djakovica, and the case

25     presented by the Prosecution was merely speculation, because there was no

Page 636

 1     evidence to support it.  The Defence maintains that in that area there

 2     was a large presence of the KLA in the relevant period when the event

 3     happened, and this is what the combat report of the 125th Brigade of the

 4     25th of April, 1999, attests to.  And I refer you to P2023.  We also

 5     heard witness Nik Peraj, a member of the Army of Yugoslavia, who in no

 6     uncertain terms said that in the Reka Valley, where this action was

 7     carried out in Meja and Korenica, there was a strong presence of the

 8     137th Brigade of the KLA.  And I refer you to P2252, paragraph 105.

 9             The report of the 125th Brigade was P2023.

10             Prosecution witness Bislim Zyrapi, the Chief of Staff of the KLA,

11     said that the KLA used heavy artillery from the territory of Albania in

12     order to provide fire support to its units in the Reka Valley starting

13     from the 9th of April, 1999.  Therefore, the speculations advanced by the

14     Prosecution were not true, that there was an action carried out with the

15     intent of driving out women -- civilians, women, children, and persons in

16     wheelchairs.  There is ample evidence which, at least alternatively, may

17     lead to a reasonable inference that the action carried out in the

18     Reka Valley had the aim of resisting a strong activity on the part of the

19     KLA including that of its heavy artillery from the territory of Albania.

20     And I refer you here to transcript pages 6238 to 6239.

21             There is ample evidence to show that in Korenica and Meja, that

22     is to say, the Djakovica municipality, there was a strong KLA presence

23     and that the action carried out in Korenica and Meja was a military

24     action directed against the KLA.  Another important issue is that in the

25     case file there is no evidence to show that General Lazarevic was

Page 637

 1     informed that there were killings of civilians occurring in that action.

 2     There is no evidence to support that.  There is also no -- there is also

 3     evidence to show that in the area of Djakovica there was a forward

 4     command post where there was Colonel Zivkovic who assigned tasks to the

 5     125th Brigade to hold a stretch of the front line without advancing

 6     further.  In other words, there is no evidence that General Lazarevic

 7     issued any sort of order in respect of this action.

 8             Let me move on to a different location now.  My time is running

 9     out quickly.  This is Dubrava/Lisnaja.  Your Honours, there you will also

10     find ample evidence which fully and unequivocally justify the position of

11     the Trial Chamber that General Lazarevic was not responsible for this

12     incident of killing.  There are killings of two Kosovo Albanians in

13     Dubrava and Kacanik municipality on the 25th of May, and there is ample

14     evidence to show that this was not committed by the VJ.  Secondly, there

15     is no evidence to show that General Lazarevic had any knowledge of this

16     incident.

17             We have heard witness Krsman Jelic testify.  He was the commander

18     of the unit who was present in that area.  He was the commander of the

19     243rd Mechanised Brigade.  According to his testimony, there was a strong

20     presence of the KLA in the area.  The inhabitants of the village left

21     their village of their own free will and left for Macedonia.

22     General Krsman Jelic made markings on the map where he clearly showed

23     what the positions of the army were and where the fighting against the

24     KLA took place.  And I refer you here to Exhibit P370, pages of the

25     transcript 19146.  The evidence will indicate clearly that there was

Page 638

 1     fighting going on between the KLA and the VJ in the area.  You will also

 2     see that none of the reports and documents put General Lazarevic on

 3     notice of the fact that there was anything improper going on in the area,

 4     especially not the killing of the civilians.

 5             Your Honours, the Prosecutor said when addressing the standard,

 6     which as we already submitted was very low, General Lazarevic had to have

 7     known based on the events from 1998 that these killings might occur in

 8     1999.  I wish to draw your attention to the documentation that I

 9     mentioned the day before yesterday, which was on quite a different set of

10     events and in respect of the fact that, in 1998, the situation on the

11     ground and the situation with regard to General Lazarevic's position was

12     completely different, and this must be taken into consideration with the

13     other factors that we mentioned.

14             In 1998, General Lazarevic was the Chief of Staff of the

15     Pristina Corps and was present at the forward command post in Djakovica.

16     He was securing the state border facing Albania from where there was a

17     high inflow of weapons and personnel on an almost daily basis.

18             General Lazarevic was erroneously described as a person who was

19     mentioned -- who was present when General Samardzic, who was the corps

20     commander then, or, rather, the 3rd Army commander, had a meeting with

21     the Pristina Corps commander.  This is Exhibit Number 4D97, which clearly

22     shows that General Lazarevic was not present in that meeting.  When the

23     Chief of Staff was mentioned, what was meant was the 3rd Army Chief of

24     Staff, because he was also the signatory.  Please look closely at 4D97

25     and you will see this discernible error that General Lazarevic indeed was

Page 639

 1     not present at the meeting which discussed torching.

 2             Also, with regard to 1999, the Prosecution cites the example

 3     where General Lazarevic, considering that he was in Pristina at the time,

 4     should have known that in addition to deportations there were also

 5     killings of Albanian civilians.  This claim by the Prosecution is also a

 6     speculation, an example of speculation that does not rely on any evidence

 7     at all.

 8             From the case file you will see that the command post of the

 9     Pristina Corps from the beginning of the bombing was never in the town of

10     Pristina.  The command post was several kilometres outside of Pristina at

11     a place called Kisnica, and there are numerous exhibits to prove this.

12     Defence witness Filipovic also testified in great detail to the fact that

13     there were no units, no troops of the VJ in Pristina itself.

14             Your Honours, this makes the claim from the Prosecution appeal

15     that General Lazarevic should have had such knowledge because he was in

16     Pristina for a meeting on 19 April 1999 completely unreasonable, mere

17     speculation.  You will see if you look at this meeting that it was late

18     at night and that General Lazarevic came to Pristina for that meeting at

19     1.00 a.m. from his command post in Kisnica for one hour only.  And let me

20     recall that by that time, 600.000 out of the total of 700.000 Albanians

21     had already been deported.  So it is absurd to claim that based on that

22     one-hour meeting in Pristina, General Lazarevic had reason to know that

23     in addition to deportations of civilian population there were also

24     killings.

25             Your Honours, I will now let my colleague Mr. Cepic address the

Page 640

 1     Prosecution grounds of appeal 5 and 6 and present our arguments.

 2             MR. CEPIC: [Interpretation] Thank you for this opportunity,

 3     Your Honour.  As my colleague Mr. Bakrac said, I will address the

 4     Prosecution grounds of appeal 5 and 6 and attempt to respond to the

 5     submissions of our learned friend Mr. Kremer.

 6             We have already addressed the issue of deportations from

 7     Urosevac, Zabare, and Prizren, Dusanovo.  I will not come back to that

 8     except to say that these allegations do not correspond to what the

 9     Prosecution say, and the Trial Chamber was correct in finding that

10     General Lazarevic had nothing to do with the incidents in that area, also

11     a plethora of evidence has been adduced, diaries of various brigades and

12     other units active in that area.  We have pointed out to inconsistencies

13     in witness testimonies considering Staro -- Sojevo, Misojevo [phoen] and

14     other places in that municipality, including Zabarevo [phoen].

15             Speaking of deportations and forced transfers in Zabrezje, I

16     would like to recall that witnesses themselves confirmed that in this

17     place, there was a military hospital of the KLA.  [In English] And that

18     was confirmed by the Prosecutor witness Mahmut Halimi, transcript

19     page 4447, 4448, which clearly demonstrate to us that it was a strong --

20     stronghold of KLA in that village.  That means that we could use the

21     pattern which is clearly described by the Prosecutor witness, credible

22     Prosecutor witness, Chief of Staff Bislim Zyrapi who said that:

23             "It was normal for us to order the movement of population but

24     also of the KLA."

25             Also, I would like to add something more regarding to that issue.

Page 641

 1     My learned friend Mr. Kremer today on the page of transcript 37 explained

 2     alleged crimes on the space of Orahovac municipality, quoted places

 3     Celine and Pirane on 25th of March, 1999.  I have to again quote Chief of

 4     Staff of KLA, page of transcript 5992:

 5             "... in the area starting from Pirane and up to Gjakova junction

 6     and Bellacerkva, the attacks were launched early in the morning on

 7     25th of March, there was combat activity.

 8             "I want to mention this:  Before the artillery attack started --

 9     correction.  After the artillery attack started, we wanted the population

10     in this area to move out for security reasons.  The KLA forces, together

11     with the population began to withdraw."

12             So that means with this piece of evidence in corroboration with

13     other direct evidence that on that place at that time was very strong

14     combat activities between VJ and MUP from one side and KLA from another

15     side.

16             I would also like to draw your attention that on other areas out

17     of alleged crime base, there is no evidence, no allegation about alleged

18     deportation or forcible transfer.  For example, nearest to village

19     Nogavac, which is just couple hundred metres from Celine, was attacked by

20     NATO bomb on 2nd of April, 1999, and Trial Chamber found that there is no

21     crimes regarding to that location.  That is the same area, almost the

22     same period of time, but completely different reason for the movement of

23     population.

24             Prosecutor in his appeal brief also marked that VJ forces

25     allegedly committed crimes in suburb of Prizren, Dusanovo.  One of

Page 642

 1     Prosecutor witnesses testified that on 28th of March, 1999, there was

 2     about 50 tanks and military units of VJ.  During the morning, my learned

 3     friend Mr. Kremer explained that VJ unit 449th Brigade was in the area of

 4     Orahovac.  That was the only combat unit in that area.  So it is not

 5     possible to be at two places at the same time.

 6             Also report from that brigade from 30th of March, P195, clearly

 7     describes positions and movements of VJ units.

 8             I would like to present you piece of evidence which is taken just

 9     couple streets from Dusanovo area, in Prizren town, in April 1999.

10             I kindly ask my assistant to play Exhibit Number 5D1374.  With

11     sound, please.

12                           [Video-clip played]

13             MR. CEPIC:  The entire video clip is about four minutes, so I

14     kindly ask my assistant just to play couple inserts from it.  From this

15     video-clip you can see the distortion of buildings.  You can see

16     civilians, Albanian civilians, from their clothing it is very simple to

17     [indiscernible] that.  You can see VJ members assisting civilians.  Also

18     see the units, civil protection units.

19             So thank you very much.

20             So the reasonable question is:  Who can remain on that location

21     after this distortion [sic]?  Even before, even later.

22             Request of Prosecutor for the sentence regarding to

23     General Lazarevic is completely unfounded.  That request is not founded

24     with any clear explanation.  The sentence of 15 years' imprisonment for

25     aiding and abetting is too high.  The Defence disposition has established

Page 643

 1     that in this case, the Trial Chamber didn't take into account all

 2     relevant pieces of evidence, especially the facts that General Lazarevic

 3     was the first one who gave the interview as accused, that

 4     General Lazarevic was the only one who testified before the

 5     Trial Chamber, even before any of Defence witnesses, and also many of

 6     evidence which clearly shows intention and activities of

 7     General Lazarevic to provide humanitarian aid to civilians in difficult

 8     wartime period.

 9             We're just explaining that to illustrate situation, that the

10     request of Prosecutor is completely unfounded.

11             For all those reasons, we kindly request from this honourable

12     Appeals Chamber to dismiss Prosecutor appeal.

13             And I kindly ask for one correction in transcript page 70,

14     line 16.  It has to be "destruction" instead of "distortion."

15             Thank you very much for your attention, Your Honours.

16             JUDGE LIU:  Thank you.  I think there's one question I would like

17     to ask.  I would like to seek your clarification on your position that

18     that is to your understanding of the judgement, what kind of legal

19     criteria the Trial Chamber applied concerning of the aiding and abetting?

20     I mean, the Trial Chamber applied the specific direction criteria or not?

21             MR. BAKRAC: [Interpretation] Your Honours, with all due respect,

22     we believe that the Trial Chamber did not apply the criterion of specific

23     direction and that is why they indeed convicted General Lazarevic of

24     aiding and abetting, deportation and forcible transfer.  We believe that

25     even applying the inappropriate milder standard, the criteria for


Page 644

 1     mens rea would not have been met and General Lazarevic should not be

 2     convicted.

 3             What we were trying to say that by applying the standard of

 4     specific direction, the inadequacy of the conviction of General Lazarevic

 5     for this would be even more obvious.

 6             JUDGE LIU:  Thank you very much.

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

 8             JUDGE LIU:  I believe that later on I will also seek the

 9     positions or understandings of the Prosecution in this matter.

10             I think that is all the questions, so may we hear the counsel for

11     Mr. Lukic's reply.

12             MR. IVETIC:  Your Honours, I thank you for the opportunity to

13     address you in relation to the Prosecution's appeal on behalf of

14     Mr. Lukic.  At the outset I'd like to tell you that if there's anything

15     that we have mentioned in our response brief which we do not present to

16     you here today orally, that does not mean that we are withdrawing any of

17     the arguments that we wrote in there.  We are simply trying to highlight

18     some points within the time period that Your Honours have granted us.

19             I would like to start by noting that the Prosecution appeal

20     essentially in every ground is merely seeking different ways to seek and

21     obtain an increase of the sentence which was initially requested by the

22     Prosecution at trial and which was imposed against Mr. Lukic by the

23     Trial Chamber.

24             As you heard from our Defence yesterday, the sentencing of our

25     client to a 22-year sentence is manifestly unjust and in error for

Page 645

 1     multiple reasons, the foremost one being an inappropriate treatment of

 2     the evidence of mitigation.  I will not repeat those arguments today, but

 3     I ask that you please bear them in mind when considering the Prosecution

 4     appeal.

 5             I must also remark respectfully that this Prosecution appeal

 6     violates fundamental issues of fairness and the most basic appellate

 7     principles.  Your Honours, a party is not permitted to appeal from its

 8     own mistake.  The Prosecution received the sentence within the range that

 9     it asked for and should be barred by the doctrine of estoppel from

10     seeking a higher sentence on appeal.  Surely in seeking a sentence of at

11     least 20 years at the conclusion of their case the Prosecution at that

12     time had in mind all the appropriate standards of proof as well as the

13     entirety of their evidence, and thus, the sentence that they sought at

14     that time was what they believed was appropriate under the standards of

15     proof and the evidence.  Thus, Your Honours, I submit irrespective of

16     whether the Trial Chamber made any errors or not in relation to the

17     standards of proof for JCE III, irrespective of the other grounds of

18     appeal that the Prosecution has raised in this appeal, the Prosecution

19     cannot claim that those errors call for an increase in sentence since

20     they, the Prosecution, were aware of the correct standards, as they say,

21     were aware of their evidence and still asked for a sentence of no less

22     than 20 years and got a sentence of no less than 20 years.  In fact,

23     more, 22.

24             The Prosecution has failed to cite to any legal authority that

25     permits them after having prevailed at trial to now seek a second bite of

Page 646

 1     the apple and appeal against their own error, the Prosecution's error,

 2     not any error by the Chamber in sentencing.  Such a position turns the

 3     appellate process on its head.

 4             The Prosecution's request that sentencing be based on a simple

 5     quantitative calculation would amount to retribution without restraint

 6     and would be contrary to the sentencing principles of the Tribunal.  It

 7     should be recalled that an integral part of the principle of retribution

 8     is restraint which requires a fair and balanced approach based upon the

 9     culpability of the individual defendant.  The Appeals Chamber has stated

10     clearly that retribution must not be accorded undue prominence in

11     sentencing.  The Aleksovski appeal judgement at paragraph 185 stands for

12     that proposition.

13             What is clear in the jurisprudence is that concern for the

14     principles of retribution and deterrence cannot justify a departure from

15     the fundamental principles that an individual should be punished solely

16     on the basis of his wrongdoing.  This is paragraph 64 of the Nikolic

17     appeal judgement.

18             Thus, in applying the sentencing principles, the limits of

19     sentences are necessarily set by the prior assessment of the gravity of

20     the offence properly taking into account the precise conduct of the

21     accused.  The Prosecution position wishes to focus only on the gravity of

22     the offence for which the trial judgement found Lukic liable, and we say

23     that the trial judgement is in error finding him liable, but the

24     Prosecution wishes only to focus on that without applying the second half

25     of the test, which is an analysis of the integral role or lack thereof of

Page 647

 1     the accused.

 2             In this regard, it ought to be stressed that under the prior case

 3     law of the Tribunal, gradations of fault within the JCE doctrine are

 4     possible and may be reflected in the sentences given.  This was a finding

 5     of the Krajisnik trial judgement at paragraph 886.

 6             I implore the members of this panel and this Chamber to use their

 7     common sense and legal training to reject the Prosecution's calls for a

 8     higher sentence irrespective of the outcome of the remainder of their

 9     appeal.

10             Now I wish to turn to some of the other submissions of my learned

11     colleagues from the Prosecution.

12             Today we heard submissions about the crimes of sexual assaults

13     and the claim of the Prosecution that they were foreseeable under the JCE

14     possibility standard since armed security forces and soldiers were out

15     and about during the period of NATO bombings.

16             As the Appeals Chamber in Karadzic has stated, it is worth noting

17     that the term "possibility standard" is not satisfied by implausibly

18     remote scenarios plotted on a spectrum of likelihood.  The JCE III mens

19     rea standard does not require an understanding that a deviatory crime

20     would probably be committed.  It does, however, require that the

21     possibility a crime could be committed is sufficiently substantial as to

22     be foreseeable to an accused.  That's paragraph 18 of the Karadzic

23     decision that is the basis of the Prosecution's appeal.

24             Thus, Your Honours, the appropriate analysis focuses on what was

25     foreseeable and substantially known to the accused under the set of facts

Page 648

 1     he operated under at the time.  So we need to look at the set of facts,

 2     not the Prosecution's characterization of them.

 3             It is important to note that even though the Prosecution is no

 4     longer claiming the evidence that they cited shows actual notice as to

 5     Mr. Lukic, you should still look at the same because that evidence the

 6     Prosecution has cited relates to separate isolated opportunistic acts and

 7     not what the Prosecution is now claiming.  Under such a factual backdrop,

 8     the possibility such crimes were foreseeable is not sufficiently

 9     substantial so as to permit a conviction of Lukic.

10             By way of example, the Prosecution relies upon evidence of

11     individual crimes of sexual assault that were not shown to have occurred

12     during any joint VJ-MUP actions but, rather, were individual instances of

13     crime that were investigated and punished by the proper law enforcement

14     authorities, be they police or military police.

15             I would urge Your Honours to look at appendix 1 of the OTP appeal

16     brief and check all those instances.

17             I ask the panel to consider when individual opportunistic sexual

18     assaults occur during a time of armed conflict and when perpetrators are

19     arrested and processed by either the military police or the civilian

20     police of that state, what more can a state official, in this case

21     Mr. Lukic, have done?  I must take the time to draw your attention again

22     to the lack of any disciplinary authority Lukic had in his position as

23     head of the MUP staff.  Yesterday, the Prosecution suggested he could

24     indirectly cause SUP chiefs to institute disciplinary proceedings.  I

25     want to present you with a citation to the evidence of what in fact a

Page 649

 1     former SUP chief and an OTP insider witness, Mr. Cvetic, actually said at

 2     transcript page 8152 through 8153.  If you look there you will see that

 3     he says SUPs could only proceed with disciplinary actions upon consent

 4     from the police administration in Belgrade.  The MUP staff had no say in

 5     this process.

 6             So, Your Honours, Lukic had no disciplinary authority over

 7     disciplinary proceedings of MUP members.  In any event, he had no actual

 8     notice of sexual assaults let alone any committed by MUP members.  Under

 9     what basis in law, under what basis in equity should he be found liable

10     and punished for these same crimes?

11             I ask Your Honours:  Do we really want to establish a strict

12     liability standard that would hold anyone in a state official position

13     culpable of rape or sexual assaults committed by unknown others either

14     without any actual forewarning that such things could occur simply

15     because there is a state of war underway and the chaos of war is afoot,

16     particularly when it is a war that they neither asked for nor started?

17     We submit this is too remote.  We submit that the Prosecution is asking

18     for the standard to be diluted beyond that which has actually been

19     established by the jurisprudence.  And, Your Honours, we would say that

20     the presumption of guilt is not permitted in criminal proceedings.  We

21     ask you to repel this part of the Prosecution appeal.

22             The Prosecution at paragraph 53 of their reply and in the

23     paragraphs contained in ground 4 of their appeal state that Lukic knew of

24     crimes in 1998 and crimes and expulsion of Kosovo Albanians in 1999 due

25     to his leadership role in the MUP.  Arising out of the Prosecution's

Page 650

 1     leadership argument is the presumption that Lukic had detailed

 2     information about activities and crimes so as to provide substantial

 3     knowledge forecasting the possibility of sexual assaults.  This is at

 4     paragraph 68 of the OTP's appeal brief.

 5             We have analysed in our appeal brief the lack of reporting as to

 6     the anti-terrorist actions, the lack of information available after NATO

 7     began its air-strikes, and other factors relating to the ability or

 8     inability of Lukic to have information from the field.  For instance,

 9     that could be seen in our appeal paragraphs 641 through 683.  They are

10     instructive, I think, for this analysis as well.

11             The Prosecution in this ground attempts to rely on information

12     contained in meetings of the so-called Joint Command and to draw improper

13     conclusions there from to illustrate Lukic's reported knowledge of

14     crimes.  However, when you look at what they cite, for instance, book 3,

15     paragraphs 1080 and 1081 of the judgement, what is being discussed at

16     those meetings were actually unverified information from various sources

17     of rumours of a crime that had not yet been legally confirmed to be a

18     crime, that is the respective Prosecutor's office with jurisdiction over

19     the same had not conducted investigations, but a review of the record

20     shows that the authorities diligently followed up and investigated even

21     unverified information in accord with the law.  I would direct you to

22     P948, page 159; 6D613; 6D1631, paragraphs 27 through 31, 60 and 93.

23             The misapprehension of the evidence on the part of the

24     Prosecution appeal continues at paragraph 70, where it is again asserted

25     that Lukic was well informed of crimes at meetings where these crimes

Page 651

 1     were discussed.  However, a look at these paragraphs from the judgement

 2     and the underlying evidence also shows no crimes being discussed.

 3     Indeed, paragraph 1079 and 1081 of the judgement that are cited in this

 4     paragraph have no mention of crimes.

 5             The reference to paragraphs dealing with Sainovic at book 3, 442

 6     and 463, only demonstrate discussion of the, quote/unquote, humanitarian

 7     catastrophe caused by NATO's bombings.  The same type of analysis sheds

 8     light on the Prosecution appeal paragraph 72 as the cited sections do

 9     not, in fact, relate to any confirmed crimes being discussed.  The only

10     things being discussed:  Pre-emptive discipline of forces, avoiding

11     breaches of the cease-fire, and the refugee crisis.

12             Another item that the Prosecution cites is P1468, and in

13     particular, they refer to a meeting - that is at page 37 of the same -

14     and I believe this also demonstrates a misapprehension of the evidence by

15     the Prosecution.  Looking specifically at this entry it states in

16     pertinent part that "Mr. Gajo" whom the evidence shows to be David Gajic,

17     the senior state security coordinator for Kosovo, and I would turn to

18     Djakovic, the author of this notebook, testifying as to that fact at

19     T 26370, and this is the entry that the Prosecution in the judgement

20     would like to highlight -- or, excuse me, the Prosecution appeal would

21     like to highlight.

22             "An investigation of six persons was initiated.  Three in

23     Malisevo.  One of them is giving a statement that he committed murder and

24     rape and three new persons."

25             To properly understand this reference, it must be understood,

Page 652

 1     Your Honours, that Malisevo was KLA-controlled territory in 1998 and,

 2     indeed, was declared the capital of KLA-controlled territory.  We have

 3     that from 3D194 and also the testimony of Bislim Zyrapi of the KLA at

 4     6852 of the transcript.

 5             Gajic, as the RDB coordinator was tasked with giving updates on

 6     KLA activities as this was part of his mandate.  Djakovic testified as to

 7     that at transcript page 26430.  Hence, Your Honours, in this concrete

 8     case that the Prosecution wants to show you that Lukic had knowledge of

 9     crimes, the crimes in question from 1998 are actually relating to the KLA

10     and KLA perpetrators that are taken into custody by state security.

11             More striking examples can be drawn from paragraph 72 and the

12     sections of the trial judgement that the Prosecution cites in support of

13     their appeal.  I will just touch on a few of them.  They cite to

14     paragraph 1082 of book 3.  This is the cited testimony of Shaun Byrnes,

15     which actually relates to a fierce battle between Serb forces and the KLA

16     in Kijevo and makes no allegation of crimes.  In fact, when questioned

17     about the cause of the burning houses, Byrnes confirmed, we saw the quote

18     yesterday, quote:

19             "I did not see a single PJP officer pull a trigger.  I did not

20     see a PJP officer light a house on fire by whatever means."

21             The missing factor that the Prosecution ignores is there was a

22     battle between the KLA and state forces.

23             Book 3, paragraph 1083, cited by the Prosecution, also dealing

24     with Shaun Byrnes.  The incidents in question must be taken in context

25     with the other evidence, inclusive of the fact that this incident -- one

Page 653

 1     incidence complained of in this section was a humanitarian operation

 2     where buses were organised to take people back to their home villages.

 3     Is liability being now asserted because people were forced back to their

 4     homes?  Concerning Byrnes' testimony, the evidence, indeed the

 5     Trial Chamber concluding at book 1, 881, that this area during this time,

 6     quote, "was a site of significant combat operations."  Thus,

 7     Your Honours, terrorists not civilians would have been the target of any

 8     actions.  And these activities would have to be considered to reach a

 9     sound conclusion and a sound judgement.

10             Book 3, paragraph 1120, finding that Lukic was aware that crimes

11     were committed in 1998 by various forces including the PJP and the SAJ

12     which were under his control while deployed in Kosovo.  The Prosecution

13     is relying upon this and the underlying evidence for its arguments on

14     appeal.  The Chamber referred to the following evidence:  The statement

15     of Adamovic, which is 6D1613; the minutes of the MUP staff meeting held

16     on 4 April 1999, which is P1989; and a memorandum by the MUP staff, which

17     is 6D874.

18             Although this finding related to 1998, the Chamber referenced

19     evidence dating from 1999 that does not substantiate the conclusions made

20     at all regards to 1998.  The paragraphs cited from Adamovic's statement,

21     and indeed the entire statement, make no mention of crimes by the MUP or

22     Serb forces committed in 1998.  Moreover, the Chamber itself at book 3,

23     paragraph 1005, noted as to 6D874 that it was signed by Dragan Ilic

24     rather than by Sreten Lukic.

25             The Chamber's position is untenable and thus the Prosecution's

Page 654

 1     appeal is untenable as it -- as it would require Lukic to have knowledge

 2     of items that he did not author and for which it has not been shown that

 3     he saw them or had knowledge of the same.

 4             There were no orders, no evidence of orders, no indicia of any

 5     orders issued by Lukic as to anti-terrorist actions that were adduced at

 6     trial.  In regards to the memorandum of the MUP staff from 4 April 1999,

 7     neither this document nor Lukic's words recorded therein mention or imply

 8     any crimes committed by state forces in 1998.  The factual backdrop

 9     simply does not support the Prosecution's appeal as to foreseeability and

10     therefore that ground should also be repelled.

11             I want to just touch on the aggravating factors that the

12     Prosecution insists on pursuing for which it says a higher sentence is

13     warranted.  Both in their brief at paragraph 181 and today in their oral

14     submissions they have claimed that Sreten Lukic was the de facto

15     commander of all the MUP in Kosovo.  They consider him a crucial member

16     of the JCE based upon this alleged position as de facto commander, and I

17     understand the seventh ground of appeal as seeking to have this command

18     superior role viewed as an aggravating factor in sentencing.

19             They list four items that they believe show his de facto

20     commander role.  The first is Lukic's role in disarming the Albanian

21     population, paragraph 183 of the appeal.  I think we have in some detail

22     explained that yesterday and that shows how their argument is misplaced,

23     because Lukic's role was only in working with the international community

24     and with Serbian officials to keep track of voluntary surrenders of

25     weapons in accord with the law and seeking peace.  This part of the

Page 655

 1     Prosecution appeal must therefore fail.

 2             The second arm that they allege is Lukic's central role in

 3     coordinating the exchange of info from the MUP HQ in Belgrade and the MUP

 4     in Kosovo.  That's paragraph 184 of their appeal.

 5             As to this, we have already seen yesterday how the SUPs reported

 6     directly to Belgrade and only in parallel to the staff.  Further we

 7     showed that you the chief of the police administration and commander of

 8     all PJP, Obrad Stevanovic, who was a superior -- who was in a superior

 9     position in the MUP to Lukic, was on the ground in Kosovo in 1999.  Lukic

10     could not supplant Stevanovic and the judgement confirmed that he did not

11     supplant or change the hierarchy of the MUP upon his appointment as head

12     of staff.

13             The third tenet that the Prosecution holds for the de facto

14     commander role of Lukic is his participation in meetings.  It's

15     paragraph 182 of their appeal.

16             As to participation in meetings, that too was discussed and I

17     believe rebutted in our submissions yesterday.  And I believe the

18     third -- fourth is from paragraph 185 of their appeal, Lukic's direct

19     involvement in planning.  We also discussed that yesterday and saw that

20     indeed the Trial Chamber found Lukic did not have a role in preparing the

21     global plan for the suppression of terrorism.

22             Also we would submit how can Lukic be de facto commander of the

23     MUP and deserve a higher sentence if the following is true under the

24     evidence.

25             First, the ability to exercise effective control in the sense of

Page 656

 1     a material power to prevent or punish has been identified by the

 2     Appeals Chamber to be a minimum requirement for the purposes of a command

 3     superior responsibility.  That is paragraph 59 of the Halilovic appeal

 4     judgement.  The same paragraph concludes as well whereas:

 5             "... a police officer may be able to 'prevent and punish' crimes

 6     under his jurisdiction ... this would not ... make him a superior ...

 7     vis-a-vis any perpetrator within that jurisdiction."

 8             Your Honours, it is clear that Lukic didn't have the ability to

 9     prevent or punish in the sense of any command superior or leadership

10     role.  Thus, it is clear that for the manner of responsibility the

11     Prosecution wishes to assert, it wrongfully assumes that if Lukic

12     reported on crime prevention efforts underway he had control over units

13     through a leadership role.

14             We talked of lack of disciplinary powers already yesterday and

15     today.  I would only add that the evidence shows that Lukic could not

16     appoint or replace anyone in the MUP including members of his own staff.

17     6D1045, 6D1047, 6D1049, 6D1050, 6D1052, and even P1884, P1886, and P1885

18     demonstrate that proposition.

19             Lukic could not assign or promote anyone within the MUP.  6D1344

20     and 6D1348 verify that.

21             Further, Lukic could not decide on deployment of PJP units to

22     Kosovo.  6D271, 6D287, 6D291, and 6D1356, among other evidence,

23     demonstrate that.

24             From the foregoing, it is clear under the standard established in

25     Halilovic appeals judgement that irrespective of whether the Brdjanin or


Page 657

 1     Karadzic standard is used, there is no leadership role attributable to

 2     Lukic that could form the basis of an aggravation of sentence or ability

 3     for -- or liability for sexual assaults.

 4             When the totality of the evidence is reviewed under the

 5     appropriate standards, we see that Lukic contributed greatly to the

 6     investigation of crimes, not to their perpetration.  We ask you to repel

 7     the Prosecution's appeal.

 8             I just want to touch on something that the Prosecution counsel

 9     raised today, their claim that persons were expelled from Pristina, Pec,

10     Djakovica, and other towns in Kosovo.  Just like yesterday, they would

11     like to ignore the role of the KLA and ignore the role of NATO.  And they

12     would like to ignore how these two actors beyond the control of Lukic had

13     an effect on the departure of civilians of all ethnicities in Kosovo.

14             I'd like to now move briefly into private session to discuss some

15     Rule 70 documents and their source.

16             JUDGE LIU:  Yes, we'll go to the private session, please.

17                           [Private session]

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 658

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6                           [Open session]

 7             THE REGISTRAR:  Your Honours, we're back in open session.

 8             MR. IVETIC:  Your Honours, 6D1637 is evidence from a Rule 70

 9     provider that Serbs and Albanians in Pristina were facing hardships and

10     choosing to leave that city after and as a result of NATO commencing

11     daytime strikes in Pristina.  Was Lukic guilty for NATO's actions?

12     6D1638 talks of the KLA General Staff reporting that its units are in

13     battle inside the towns of Pec and Djakovica and attempting to take over

14     control of those towns.  6D1636 confirms by the KLA that they have

15     entered the city centre of Pec and were battling for control of Pec.

16     6D1637 also talks of fierce fighting in Pec between the KLA and state

17     forces as well as the presence of a KLA force and fighting in the Reka

18     and Carragojs region.  I ask you, Your Honours, is Lukic supposed to be

19     guilty for the actions of the KLA?

20             These documents and other evidence of record provide alternative

21     reasons why people left their homes and why they fled.  Other evidence --

22             THE INTERPRETER:  Please.

23             MR. IVETIC:  Other evidence that I believe Your Honours need to

24     consider in relation to the Prosecution appeal.  We ask you to consider a

25     totality of the evidence and the arguments that we have presented and ask


Page 659

 1     you to repel the Prosecution appeal in its entirety.  And I thank you for

 2     your time, and I apologise to the translators.

 3             JUDGE LIU:  Thank you very much.

 4             Mr. Ackerman.

 5             MR. ACKERMAN:  Your Honour, I was wondering if I might have one

 6     minute of my time back.  I've been searching for a cite and I finally

 7     found it.  I just want to tell you what it is and where it is.

 8             JUDGE LIU:  Yes, please.

 9             MR. ACKERMAN:  I remembered this from a long time ago and I was

10     having trouble finding it.  It's actually in the first Appeals Chamber

11     decision of this Tribunal, the Erdemovic sentencing appeal.  It's on

12     page 14, and what the Appeals Chamber says there is:

13             "The appeal process of the International Tribunal is not designed

14     for the purpose of allowing parties to remedy their own failings or

15     oversights during trial or sentencing."

16             Thank you.

17             JUDGE LIU:  Thank you very much.

18             I think it's time for a break.  We will have 30 minutes' break

19     and we'll resume at quarter past 3.00.

20                           --- Recess taken at 2.43 p.m.

21                           --- On resuming at 3.15 p.m.

22             MR. PETROVIC: [Interpretation] Your Honours, with your leave, I

23     would like to inform the Appeals Chamber that my colleague did not feel

24     well and he had to leave the courtroom for the rest of the day so I will

25     be the only counsel representing Mr. Sainovic for the rest of today's


Page 660

 1     hearing.  Thank you.

 2             JUDGE LIU:  Thank you very much.  We all wish him a speedy

 3     recovery.

 4             MR. PETROVIC: [Interpretation] Thank you, Your Honour.

 5             JUDGE LIU:  Now the Bench would like to hear the reply from the

 6     Prosecution.

 7             MR. MILANINIA:  Mr. President, Your Honours, may it please the

 8     Court.  To provide you a brief road map of our reply, first I plan on

 9     addressing ground 2 of our appeal and, in the context of our reply,

10     address Judge Liu's question.  After me, Ms. Jarvis will then proceed on

11     providing a reply regarding responses concerning grounds 3 and 4 of our

12     appeal.  And then finally Mr. Kremer will conclude by addressing the

13     responses to ground 1 and 6 of our appeal but also address the question

14     that was asked of Ms. Jarvis concerning the role of the NATO bombings, as

15     well as the number of individuals who fled Kosovo.

16             Your Honours, to begin, first to address Judge Liu's question.

17     The Trial Chamber did not explicitly apply the specific direction test as

18     this was not a requirement before the Perisic appeals judgement as was

19     explained on Wednesday by Mr. Marcussen.  Your Honours, I refer you to

20     transcript pages 439 to 461.  However, even if you now take the view that

21     specific direction is a requirement, we submit that it was implicitly

22     established by the Trial Chamber in this case.  As Mr. Marcussen detailed

23     before, General Lazarevic was a proximate aider and abettor.  You can

24     find that at transcript pages 461 to 470.  He was on the ground in Kosovo

25     when the crimes were being committed and he was the commander of the

Page 661

 1     forces involved in those crimes.  His role, Your Honours, is similar to

 2     that of Krstic, Brdjanin, and Simic, all of which the Perisic

 3     Appeals Chamber found to be proximate at footnote 100 of paragraph 38.

 4             And on Wednesday, we showed you that General Lazarevic

 5     specifically contributed to operations which could never be understood as

 6     legitimate warfare, in particular, Your Honours, with respect to the

 7     Reka Valley operation.  Therefore, on the facts of this case, it is

 8     implicit that General Lazarevic's actions were specifically directed at

 9     the crimes of deportation, forcible transfer, and murder as explained in

10     our submissions on Wednesday and earlier today.

11             Your Honours, as one final note on that question, I would like to

12     draw your attention to the fact that today the Prosecutor for the

13     Special Court of Sierra Leone has recently issued a briefing in that case

14     indicating all of the problems that we discussed concerning the Perisic

15     appeals judgement.

16             Second, Your Honours, General Lazarevic attempts to disclaim his

17     responsibility for these crimes by suggesting that he took steps to

18     combat murders involving the VJ.  While we understand that there may be

19     certain circumstances where an accused can absolve themselves of aiding

20     and abetting liability by taking steps to combat crimes, this is not one

21     of those cases.  The Prosecution notes that the Trial Chamber considered

22     these arguments at Volume III, paragraph 870, and found that General

23     Lazarevic's responses were, and I quote, "manifestly inadequate in light

24     of the scale of the offences occurring in Kosovo."

25             The Chamber also found that General Lazarevic was aware of these

Page 662

 1     inadequacies, noting at Volume III, paragraph 925, that, and I quote

 2     again:

 3             "General Lazarevic knew that his failure to take adequate

 4     measures to secure the proper investigation of serious crimes committed

 5     by the VJ enabled the forces to continue their campaign of terror,

 6     violence, and displacement."

 7             Your Honours, these are the two issues I wish to discuss

 8     concerning ground 2, and unless you have any further questions on this

 9     issue, I would now like to turn the podium over to Ms. Jarvis.  Thank

10     you.  Thank you.

11             MS. JARVIS:  Your Honours, I'll also aim to be quite brief in

12     reply.  I have just three points that I wanted to mention in relation to

13     the issue of the sexual assaults as persecution in this case.

14             First of all, both counsel for Sainovic and Lukic emphasise the

15     point that, in their view, the numbers of sexual assaults in this case

16     were quite low and therefore constituted opportunistic assaults that were

17     unconnected with the broader campaign.  First of all, as I've mentioned,

18     Your Honours, there's no legal requirement that a crime has to be

19     committed in large numbers in order to be foreseeable for the purposes of

20     JCE III.  Nor is there any legal requirement that a crime has to be

21     committed in large numbers to form part of an attack that would

22     constitute a crime against humanity.  The case law more generally

23     confirms that even one act could qualify as a crime against humanity or

24     even persecution so long as it's not an isolated act or random.  And

25     that's the Kunarac appeals judgement, paragraph 96, and the Blaskic

Page 663

 1     appeal judgement, paragraph 101, just by way of a couple of examples.

 2             But as the Defence have asserted that the number of sexual

 3     assaults in evidence was low, it's perhaps worth providing a little bit

 4     more detail on this point.  And to begin I want to correct something that

 5     I said in my submissions earlier today where I referred to 11 sexual

 6     assault incidents having been charged in the indictment.  What I should

 7     have said was there are 11 sexual assault incidents found to be proved by

 8     the Trial Chamber.

 9             THE INTERPRETER:  Please show down.  Thank you very much.

10             MS. JARVIS:  I also referred to evidence on the record about an

11     estimated 50 additional sexual assaults.  In particular, Your Honours,

12     K58, a witness in relation to Beleg, described how, while K20 and the two

13     other girls were absent from the room, more young women were selected by

14     paramilitaries who came to the rooms about four or five times until

15     approximately 20 young women or girls had been taken, with the last one

16     being returned at around 5.00 a.m.

17             These girls returned disheveled and crying, and K58 overheard one

18     of them telling her mother that she had been raped.  That's trial

19     judgement Volume II, paragraph 63.

20             The Trial Chamber found that at least four women were sexually

21     assaulted in Cirez, but there was evidence that around 20 other women

22     were subjected to similar treatment.  Trial judgement Volume II,

23     paragraphs 629 to 631.

24             And one of the three victims who the Trial Chamber found had been

25     raped in Pristina stated that around 10 to 15 other Kosovo Albanian women

Page 664

 1     had been taken to the Pristina hospital basement where she was held to be

 2     raped.

 3             That's Trial judgement Volume II, paragraph 880, and

 4     Exhibit P2596.

 5             In my submissions earlier I also referred to other reports of

 6     rape on the record, and to those I could also add that human rights

 7     observers and journalists published reports of rape and sexual assault

 8     before, during, and after the 1999 campaign, and I refer to Exhibits

 9     P385, P441 and P2228.

10             So for example, after the campaign, Human Rights Watch reported

11     96 credible reports of sexual assault by Yugoslav soldiers, Serbian

12     police or paramilitaries during the period of the NATO bombing.  That's

13     Exhibit P228.  So it's not correct, Your Honours, to say, even on the

14     evidentiary record, that the sexual assaults in issue were unusual

15     occurrences.  But more fundamentally, even if a crime is opportunistic,

16     it can be foreseeable as confirmed by the Krstic Trial Chamber in

17     relation to the opportunistic rapes in Potocari.

18             My second point, Your Honours, is the reference by my learned

19     colleagues to the fact that the Trial Chamber looked at the Krstic and

20     Kvocka precedence in its judgement and we accept that there was reference

21     to these two cases.  But of course, Your Honours, the Trial Chamber was

22     applying the wrong legal standard when it carried out its assessment of

23     these two cases.  It's for Your Honours to now apply the correct legal

24     standard and draw guidance from the authorities in Krstic and Kvocka to

25     make your own determination.  You're not bound by the Trial Chamber's

Page 665

 1     assessment, all the more so given the paucity of reasons given by the

 2     Trial Chamber as to how these precedents were to be distinguished from

 3     the case at hand.

 4             And the third point, Your Honours, is in relation to the

 5     arguments we've heard today that the Prosecution is proposing an approach

 6     that would result in automatic liability or somehow a kind of strict

 7     liability for all sexual violence during armed conflict.  We have been at

 8     pains, Your Honours, to explain why that's really not the case.  We're

 9     not talking about the general risk of sexual violence in conflict.  We

10     are talking about a situation where there was a common criminal plan

11     which incorporated violence and what is foreseeable in that context.

12     What is missing in the arguments presented to you by my colleagues is the

13     reference, of course, to the fact that their clients signed on to this

14     common criminal purpose.

15             Even so, we're not saying that rape is a foreseeable consequence

16     of every joint criminal enterprise or, indeed, of every ethnic cleansing

17     campaign.  Of course, it depends on the methodology employed by the JCE

18     members.  Certainly every ethnic cleansing campaign similar to this one

19     which involves unleashing tens of thousands of armed men into villages

20     where they're going to come into one-on-one contact with the targeted

21     population in all of the other conditions that I've mentioned, then yes,

22     it is foreseeable that violations of physical integrity like sexual

23     assault will happen.

24             But of course, we recognise that an ethnic cleansing campaign

25     might be carried out by a different methodology.  For example, if

Page 666

 1     shelling was the employed mechanism for trying to terrify people into

 2     fleeing, which didn't involve sending troops into villages door-to-door,

 3     in that situation, Your Honours, depending on the circumstances, it might

 4     well be that a physical violation like sexual assault would not be

 5     foreseeable.  So we very much recognise that it depends on the particular

 6     circumstances but given the nature of this campaign, we say that

 7     violations of physical integrity including sexual assault were indeed a

 8     foreseeable possibility.

 9             Thank you, Your Honours.

10             MR. KREMER:  Your Honours, I will briefly address some of the

11     responses concerning ground 1 and ground 6.

12             Concerning ground 1, the Prosecution's core case was that Kosovo

13     Albanians were targeted and deported or otherwise forcibly displaced by

14     forces commanded or co-ordinated by the accused.  For the reasons that

15     are set out in the Prosecution appeal brief and in our reply brief, the

16     indictment properly pled persecutions by forcible transfer and

17     deportation and the Chamber erred in giving the indictment an overly

18     technical reading resulting in the non-conviction of the persecutions by

19     forcible transfer and deportation.

20             Our position is, and this is set out in paragraphs 8 to 10 of the

21     Prosecution reply brief, there was no waiver.  There could be no waiver

22     because the indictment was clear and the Trial Chamber gave it an overly

23     technical reading.  I believe that everything that needed to be said is

24     found in the briefs and Your Honours can make your own assessment as to

25     whether or not this position is correct.

Page 667

 1             Concerning ground 6, I have several points.  First, counsel for

 2     Pavkovic raises his appeal point concerning why his appeal should be

 3     mitigated.  We deal with this in our response brief at paragraph 149 to

 4     151.  His response here is not a response to the Prosecution appeal brief

 5     per se.

 6             Second, contrary to the submissions made by Pavkovic for each

 7     crime identified in Volume II, the Trial Chamber made a specific finding

 8     as to which entity, the VJ or the MUP, was involved.  Where it could, it

 9     also made findings about specific divisions or units involved in the

10     crimes and even differentiated crimes committed by other forces.  The

11     crimes were imputed to Pavkovic and other JCE members because the

12     JCE members used the VJ and the MUP forces to carry out the crimes.  And

13     I refer you to Volume III, paragraph 783.

14             Third, without responding to our sentencing appeal, counsel for

15     Sainovic went into depth comparing and contrasting Sainovic's

16     responsibility with others who were not charged, or tried in this case,

17     such as Milosevic.  While his submissions were passionate calls for the

18     acquittal of his client, they were not a measured response against our

19     submissions concerning Mr. Sainovic's role and responsibility for the

20     crimes and the gravity of the crimes for which he was convicted.  Which

21     together, we submit, justified a sentence significantly in excess of

22     22 years.

23             Fourth, Mr. Lazarevic and Mr. Lukic did not respond at all.

24     Mr. Lukic instead took the opportunity to augment his appeal including

25     his sentence appeal, with more references to arguments that he made at

Page 668

 1     trial or included in his appeal brief and were rejected -- arguments

 2     which were rejected by the Trial Chamber such as the argument that NATO

 3     and the KLA were among the many reasons for the Kosovo Albanian

 4     displacement.  Issues that the Trial Chamber dealt with squarely and

 5     rejected.

 6             And this leads me to my next point, counsel for several of the

 7     accused argue that the Prosecution should be estopped from arguing

 8     anything in excess of 20 years' imprisonment.  We comment on this

 9     argument in our reply brief.  The practice of sentencing in this Tribunal

10     changed before the conclusion of the trial in this case.  So there was no

11     sentencing hearing separate from the trial.  And at the time the

12     Prosecution was asked to make sentencing submissions, it had no knowledge

13     as to which counts, if any, the accused would be found guilty of.

14             Both the Prosecution and the Defence were required to provide a

15     rough range of possible sentences depending on whether the accused were

16     convicted of one or more crimes and depending on the convicted mode of

17     liability.

18             Contrary to what is being asserted by the accused, the

19     Prosecution did not simply ask for sentences of 20 years at trial.  It

20     requested 20 years to life depending on which specific mode of liability

21     and which crimes the accused are found guilty.  I refer you to our final

22     trial brief at paragraph 1100 and the trial transcript at page 26947.

23     20 years was our minimum suggested sentence, assuming the accused were

24     found guilty of only one of the crimes and the lowest mode of liability.

25             The Defence would have you believe that when the Prosecution

Page 669

 1     gives a sentencing range, it should be limited to arguing that on appeal,

 2     regardless of the outcome of the trial and regardless of the breadth or

 3     narrowness of the convictions.  We respectfully disagree.

 4             The Chamber in this case went beyond convicting the accused to

 5     just one of the crimes under the lowest mode of liability.  All four

 6     accused were convicted of committing or aiding and abetting the forcible

 7     displacement of hundreds of thousands of Kosovo Albanians.  The JCE

 8     members were convicted of other crimes flowing from their criminal

 9     campaign.  The accused, in our submission, deserve the severest

10     punishment this Tribunal -- or this Chamber believes is appropriate.

11             In our submission, the Trial Chamber had the responsibility to

12     send a clear message to those who perpetrate crimes on this scale that

13     they will receive the most severe sentences for their crimes.  In this --

14     in not doing this, we submit, the Trial Chamber erred, and we ask you to

15     correct this error and significantly increase the sentences for all

16     four accused.

17             Let me now turn to Judge Tuzmukhamedov's question that was asked

18     this morning of Ms. Jarvis, and the question I understand, just so that

19     we can frame the question I'm answering and if it is -- it requires more

20     amplification I'd welcome it.  Where the Trial Chamber beyond reasonable

21     doubt based on evidence other that reports of the MUP made a conclusion

22     that the displacement of upwards of 700.000 could be attributed to the

23     common plan of the members of the joint criminal enterprise.

24             And I'll try to answer the question as we understand it in

25     detail.

Page 670

 1             In paragraph 45 of Volume III, the Chamber found that although

 2     the NATO bombing and the KLA activities were a factor in the complicated

 3     situation on the ground in 1999, these were not the cause of over

 4     700.000 people moving en masse both within Kosovo and then across the

 5     border.  In reaching this conclusion, the Trial Chamber took into account

 6     the following seven factors.  First, the direct and consistent testimony

 7     of the Kosovo Albanian witnesses and victims who testified at trial about

 8     their own expulsions and that of many others from Kosovo and who said

 9     that they left Kosovo because of the actions of the FRY and Serb forces,

10     not the NATO bombing.  And that's found at Volume II, paragraphs 33, 69,

11     163, 279, 285, 887, 915, 942, and 973.

12             In assessing their testimony, the Chamber considered the fact

13     that these witnesses came from a broad section or cross-section of that

14     community generally with no connection to one another beyond their

15     victimisation and found that it was inconceivable that they could or

16     would all have concocted such detail and consistent accounts of the

17     events that they experienced and witnessed.  That's Volume II,

18     paragraph 1175.

19             Second, the Chamber took into account the testimony of former MUP

20     and VJ personnel who directly participated in expelling of the Kosovo

21     Albanian civilians from their homes in different municipalities.  And I

22     refer the Chamber to Volume II, paragraphs 1172 to 1174; Volume III,

23     paragraph 43.  And to also look at Volume II, paragraph 74, 145, 152 to

24     155, 163, 228 to 232, 235 to 237, 398 to 401, 469 to 470, 498 to 507,

25     831, 997 to 999, and 1067.

Page 671

 1             Third, the testimony of internationals who were on the ground and

 2     confirmed the consistent account of the victims.  I refer you to

 3     Volume II, paragraph 836 in particular, but also Volume II,

 4     paragraphs 848 to 850, 858; Volume II, footnote 2820, in particular

 5     Knut Vollebaek, transcript 9522 to 9524, testifying on 31 January 2007.

 6             They also took into account data from the UNHCR on the numbers of

 7     refugees crossing into Macedonia, Albania and Montenegro.  I refer you to

 8     footnote -- to Volume II, footnote 2820; Exhibit P2438, redacted

 9     statement of Neill Wright of the UNHCR; P738, the UNHCR estimates of

10     displacement and return.

11             Fifth, the fact that NATO bombs struck targets across the FRY

12     with Belgrade suffering the most destruction and yet people did not leave

13     Belgrade and other parts of the FRY in the massive numbers which fled

14     Kosovo.  It's a finding at Volume II, paragraph 1177.

15             Sixth, the fact that in the summer of 1998, despite the ongoing

16     conflict between the VJ and the MUP and the KLA, there was no massive

17     flood of people across the borders.  Volume 1, paragraph 1177.

18             And finally, the MUP's own reports of the numbers of people

19     crossing the border into Albania, Macedonia, and Montenegro.  Volume I,

20     paragraph 1150.

21             It was based on this wide range of mutually corroborating

22     factors, based on direct evidence and circumstantial evidence from

23     witnesses who testified about their own experiences, their own

24     observation, and documented numbers by not only the MUP but other

25     organisations that the Chamber reasonably concluded that, first, the

Page 672

 1     reason for the departure of the Kosovo Albanian civilians was the

 2     violence directed against them by forces under the control of the FRY and

 3     Serbian authorities, not the NATO bombing.  And I refer you again to

 4     Volume II, paragraph 1178, which has been referred to during the

 5     Prosecution submissions.

 6             And this forcible displacement could only be attributed to the

 7     common plan of the members of the JCE.  And that's found at Volume III,

 8     paragraphs 95 to 96.

 9             The Trial Chamber's conclusion as to the reason and numbers of

10     people forcibly displaced by the action of the JCE members to implement

11     their common plan was a reasonable one and is entitled to considerable

12     deference.  As an Appeals Chamber, you must ask yourselves if this

13     conclusion was one no reasonable Trial Chamber could make, and because

14     this is not a de novo review, it is our submission that the

15     Trial Chamber's conclusion was in fact reasonable.  And I hope I've

16     answered your question in full.

17             JUDGE TUZMUKHAMEDOV:  Thank you very much.  But I'm afraid that

18     somebody had to sacrifice his or her lunch.  That was quite impressive

19     and I only hope that this would -- well, firstly, when you referred 19 --

20     lines 15, 16, apparently you were referring to 115, Volume II, rather

21     than Volume 1.

22             MR. KREMER:  I'm sorry?

23             JUDGE TUZMUKHAMEDOV:  I don't know how to work with the Lotus

24     LiveNote here, but anyway, page 98 --

25             MR. KREMER:  Yes.

Page 673

 1             JUDGE TUZMUKHAMEDOV:  -- lines 15 and 16, you said, and it was

 2     recorded so, Volume I of paragraph -- and paragraph 1150.  I understand

 3     you were referring to Volume II, paragraph 1150.  All right.  Never mind

 4     this is technical.  And the other thing I hope that ...

 5             MR. KREMER:  I'm sorry, I can just double-check that --

 6             JUDGE TUZMUKHAMEDOV:  Yes, you check it, certainly.  Maybe I'm

 7     wrong as well.  But anyway, thank you very much for that analysis and I

 8     would hope that this would reconcile paragraphs 1150 and 1179 -- 78, the

 9     numbers given in those two paragraphs in Volume II, and also the reasons

10     for leaving, for displacement or for flight of displaced persons which

11     are given in 1175 in Volume II would fit into that reconciliation of

12     numbers between 1150 and 1178.  Thank you.

13             MR. KREMER:  Based on my reading of the multiple paragraphs, the

14     numbers do reconcile themselves.  The unfortunate part of the judgement

15     is that there are numbers coming from different places -- different

16     organisations and at different times, and the -- the total numbers are

17     expressed as more than 700, but we do know that up until May 1st, already

18     715.000 had been displaced and the campaign continued beyond that date

19     into early June.  So the final number was never calculated to my

20     understanding or through my reading of the judgement.

21             JUDGE TUZMUKHAMEDOV:  Thank you.

22             MR. KREMER:  Subject to any questions Your Honours may have,

23     those are my submissions.  On behalf of the Prosecution, I would like to

24     thank Your Honours for your attention.  I would like to thank my

25     colleagues for their professionalism during the course of the hearing.  I

Page 674

 1     would like to thank all of the staff for their assistance and indulgence

 2     to five long days of counsel making their remarks, and particularly I'd

 3     like to thank the interpreters on behalf of us fast speakers for

 4     reminding us periodically that we are making their jobs difficult, and

 5     for having done so, I apologise again.  Thank you.

 6             JUDGE LIU:  Thank you very much.  Yes, Mr. Ackerman.

 7             MR. ACKERMAN:  Your Honour, at the beginning of the -- what was a

 8     reply of the Prosecution, they injected some completely new matter into

 9     this case, telling you what the Prosecutor for the STL said about the

10     Perisic case.  And if you're willing to treat that at about the same

11     level you'd treat it from a chief Defence counsel in an international

12     court, then I don't have any problem with it, but I don't think it has

13     any impact at all.  But if you think it might, then we would like some

14     time to look at it and give you a response in writing with regard to --

15     we tried to find it.  It's not on their web site.  I don't know where the

16     Prosecutor found it.  But in any event, if they could provide it to us

17     and we could be allowed to respond to it, that would be okay, or I think

18     it would be much easier to just say it has no meaning and we just let it

19     go.

20             JUDGE LIU:  Well, I would like to thank you very much for your

21     submission, but, however, this is a legal document of other Tribunals

22     which has no binding force upon this Tribunal.  And according to the

23     Scheduling Order of this hearing, I would like to invite the defendants

24     to make their personal statement if they wish to do so.

25             Yes, Mr. Sainovic, you have the floor.  You have ten minutes.


Page 675

 1             THE APPELLANT SAINOVIC: [Interpretation] Thank you,

 2     Mr. President.

 3             Your Honours, I was a state official.  I was elected into the

 4     federal parliament back in 1986, and from the parliament into a number of

 5     governments in the 1990s.  I was still in my term of office as a federal

 6     deputy when I came before this Tribunal in 2002.  Such an election, of

 7     course, implies assuming proportional responsibility for the state of a

 8     country.  A state official represents the state in good times and bad.

 9     In good times there are many of those who take credit for it.  In bad

10     times, a state official does not have the right to shy from

11     responsibility and it is in that sense that I stand before you.

12             There were times earlier on when the federal government would

13     send me to Vienna and to Kuwait and those were nice times.  When the

14     crisis broke out, it sent me to Kosovo twice before and near the end of

15     the war and that's how I happened to be there.  The war in 1999 was

16     exceptionally complex.  On the ground there was a clash between the

17     forces of the Federal Republic of Yugoslavia and Serbia and the KLA which

18     used civilians as its base when on offensive activities and would merge

19     with civilians in defensive activities.  From the air there was a large

20     scale combat activity of the greatest power in the world whose technical

21     superiority often kept it out of reach or was often unavailable and out

22     of reach of the Army of Federal Republic of Yugoslavia.  This gave an

23     unparalleled dynamic and intensity of the conflict.  I would truly not

24     want to wish upon anyone who would wish to compare it to 1998 to be in a

25     position to experience the difference in person.  The activity of all

Page 676

 1     these forces at the same time led to appalling civilian casualties in

 2     Kosovo and across Yugoslavia.  The enormous human suffering is felt to

 3     this day.  I myself will suffer for it as long as I live.

 4             Only the four of us from one side of the conflict are at trial

 5     here.  Am I aware that as a participant in the events preceding the war

 6     and during the war I am answerable for the consequences of my actions?  I

 7     am aware of it.  Why did I plead not guilty here?  Precisely for that.

 8     That was how I pled in respect of the indictment which substantially

 9     distorted the picture of the situation in my country and my role in it,

10     and this is what I have been fighting against in these proceedings for

11     more than ten years now.

12             Was there a meaning to this struggle?  I believe that there was,

13     and I will give you an example.  Over the past several days, all the

14     parties to the proceedings challenged specific portions of the trial

15     judgement.  However, nobody challenged the part where it was found that

16     my country entered into peace negotiations in good faith and that it

17     wasn't to blame for the failed negotiations at Rambouillet as the

18     indictment alleged.  In Volume I, paragraphs 407 and 410.

19             I participated in these negotiations with a deep conviction that

20     peace was possible, both for me and my country.  This finding constitutes

21     a significant outcome even if it may have cost me ten years.

22             Unfortunately, the Trial Chamber convicted me even for that which

23     I did not participate in and for the position that I did not hold in the

24     relevant period.  Although its findings were different from the

25     allegations in the indictment, nevertheless, they were in essence far


Page 677

 1     from the situation as it was in reality.  This is the subject matter of

 2     my appeal which is before you, Your Honours.  I fully stand by everything

 3     that my Defence counsel stated here, and I have nothing to add to that.

 4             Thank you for your attention.

 5             JUDGE LIU:  Thank you very much, Mr. Sainovic.

 6             Mr. Pavkovic.  You also have ten minutes.

 7             THE APPELLANT PAVKOVIC: [Interpretation] Your Honours, I am

 8     Lieutenant-General of the VJ, retired, Nebojsa Pavkovic, a participant in

 9     the events of the 1998 and 1999.  I am a professional soldier who has

10     completed all the various military schools with highest credit and I have

11     carried out various duties from the lowest to the highest level and held

12     various positions.  I built my career long before I met Mr. Milosevic,

13     which was in late May 1998.  I spent six years at Kosovo.  I was an

14     operational at the corps and then a Chief of Staff of the corps and then

15     the commander of the corps.

16             The appointment of a commander of a corps is not carried out the

17     way the Prosecutor described it.  Out of 760 cadets who graduated from

18     the academy, only 20 per cent are generals.  Five were corps commanders,

19     one was army commander, and one was Chief of the General Staff.

20             In 1998, I held the duty of the corps commander and received

21     orders solely from the army commander, General Samardzic.  The Chief of

22     the General Staff, Perisic, never issued me with a single order.

23     Milosevic, the president, never issued me with a single order.

24     Mr. Sainovic, for whom I have respect, never issued me an order and, with

25     all due respect, I would never accept an order from Mr. Sainovic who has

Page 678

 1     no military training.  And to tell you the truth, if somebody asked me

 2     why I am [as interpreted] here, I wouldn't be able to give you an answer.

 3             Your Honours, I found it hard that I should be accused as a

 4     Serbian general who waged a war against my own people, because the

 5     Albanians are my own people.  I know them well and I have many friends

 6     among them.  That's why I would like to draw your attention to several

 7     factors which led to the creation of the climate as described in the

 8     indictment.  This was primarily an unlawful terrorist organisation which

 9     tried to achieve its goals through terrorist actions and it was declared

10     a terrorist organisation in March of 1998.

11             Furthermore, the lawful forces of a sovereign independent state,

12     a member of the United Nations, its army and the MUP were trying to

13     combat terrorism in an area.  You have to understand the fact that there

14     were 1.403 settlements in Kosovo of which 1.050 were Albanian, 150 were

15     Serbian, and the rest were mixed.  Every Albanian village had armed men.

16     This was a tradition.  There were -- there was armed guard.  There were

17     patrols, and there were more than 100.000 [Realtime transcript read in

18     error "10.000"] pieces of weaponry in the hands of the Albanians.

19             It is important for me to say that the climate of terror in

20     Kosovo was not produced by the law enforcement agencies of the Republic

21     of Yugoslavia.  Rather, it was the terrorists of the national army of

22     Kosovo.  80 per cent of the territory of Kosovo was blocked in 1998,

23     90 per cent of roads were blocked and, later on, as the roads leading to

24     the frontier were blocked as well, the Yugoslav state organs decided that

25     terrorism in Kosovo be combatted with the use of the VJ and MUP.  We

Page 679

 1     embarked on this operation and completed it in October 1998.  There were

 2     no crimes committed.  There were crimes committed in Rznici, Jablanicko

 3     Lake, et cetera, committed by the Albanians.  All the civilians [Realtime

 4     transcript read in error "sips"] who were displaced returned to their

 5     homes.

 6             After the arrival of the OSCE mission, the army withdrew into the

 7     barracks, the MUP left Kosovo and Metohija, the KLA took all the

 8     positions.  I would like to explain to you why the civilians had moved in

 9     the first place.  I don't have much time but I may be able to explain.

10             As the Prosecutor highlighted, the population moved from

11     30 municipalities which are in the border area of Kosovo and Metohija.

12     In operative and tactical terms they are on the front line of the

13     3rd Army and the Pristina Corps.  Those were the positions that were

14     taken by the units of the Army of Yugoslavia pursuant to an order from

15     the Grom 3 directive.  It was ordered that those positions be taken.  At

16     the moment when we started moving, we were attacked by the KLA and what

17     happened was serious conflicts.

18             Let me just emphasise that in the course of 1998, 1.845 terrorist

19     attacks were carried out in Kosovo.  A total of 368 people were killed,

20     out of which 208 civilians, 757 -- or, rather, 758 civilians were killed,

21     158 were kidnapped.  And you can tell from all that who was it who spread

22     the climate of terror.  The Army of Yugoslavia, the Pristina Corps

23     namely, had about 11.000 men.  Of that the combat segment of the Pristina

24     Corps represented 5.001 men.  Everybody else was engaged on the border,

25     deployed on the security detail around various military facilities and so

Page 680

 1     on and so forth.

 2             I don't want to talk about NATO.  NATO is a military

 3     organisation, the most powerful organisation that attacked my country, my

 4     small army, and we defended ourselves as best as we could.  The biggest

 5     problem for us were terrorists, i.e., the KLA.  I can tell you that the

 6     KLA, on the 1st of January until the 23rd of March, carried out

 7     632 attacks.  101 against the army, 298 against the MUP, and 233 against

 8     the civilians.  Every day 6 to 8 attacks on average.  This is an

 9     analysis, and all the evidence may be found among the tens of thousands

10     of exhibits that we have seen here and that we have submitted.

11             When it comes to civilians, three to four civilians were killed

12     every day.  And they were killed by terrorists.

13             When it comes the deportation of civilians, as the Prosecutor

14     calls that, even up to 1998, from 1981, whenever conflicts happened in

15     Kosovo, whenever there was disorder, civilians fled the territory of

16     Kosovo.  It happened all the time.  In 1998 it didn't happen, but they

17     again started leaving Kosovo in 1999 from those 13 municipalities that

18     were along the borders.  There are 29 municipalities in Kosovo.  We heard

19     arguments why people did not leave the remaining 16 municipalities, why

20     there were not conflicts there because there were no terrorists there.

21     There was no need for exodus from those municipalities.  We had the

22     fiercest battles with terrorists during the aggression, and with this

23     regard, I would like to point out that the NATO campaign contributed

24     largely to the movement of civilians.

25             During the 78 days of the aggression, the Federal Republic of

Page 681

 1     Yugoslavia suffered 3.380 air-strikes.  In Kosovo, 1.574 air-strikes,

 2     which accounted for over 50 per cent of the total number of air-strikes.

 3     Cities in Kosovo that suffered air-strikes, Pristina 406, Prizren 334,

 4     Urosevac 240, Pec 108, Kosovska Mitrovica 116 times.  752 settled areas

 5     in Kosovo suffered air-strikes, some of them 5 to 8 times.  The units of

 6     the 3rd Army suffered 4.662 projectiles thrown at them.  That means

 7     that --

 8             JUDGE LIU:  Mr. Pavkovic, I believe that your time is up.  I will

 9     give you one more minute for you to finish your statement.

10             THE APPELLANT PAVKOVIC: [Interpretation] Thank you, Your Honour.

11             The arguments concerning the conduct of the army of Kosovo are

12     numerous.  I tried and I knew I would fail to tell you everything, but

13     it's all in our documents.  It's all on the record.  As for the conduct

14     and the position of my Defence counsel, I stand by them completely.  And

15     I thank you for your attention and I thank you for enabling me to address

16     you.  Thank you.

17             JUDGE LIU:  Thank you very much.

18             MR. ACKERMAN:  Your Honour.

19             JUDGE LIU:  Yes, Mr. Ackerman.

20             MR. ACKERMAN:  There are some transcript errors that I need to

21     point out real quickly if I can.

22             JUDGE LIU:  Yes.

23             MR. ACKERMAN:  Page 104, line 12, he was talking about

24     Mr. Sainovic and he said, "I don't know why he is here," instead of

25     saying, "I don't know why I am here."  He was referring to Sainovic, "I


Page 682

 1     don't know why he is here."

 2             At 105, page 3, regarding the pieces of weaponry possessed by the

 3     Kosovo Albanians in 1998, he said "100.000" and the transcript says

 4     "10.000."  And at 105, 14, he talked about "all the civilians" and the

 5     transcript says "all the sips."  I don't know what "sips" means but

 6     that's -- those are the changes.

 7             JUDGE LIU:  Thank you very much.  I believe that the translator

 8     will check according to the recording.  Thank you.

 9             Mr. Lazarevic, may I invite you to make a personal statement, if

10     you wish, for ten minutes.

11             THE APPELLANT LAZAREVIC: [Interpretation] Mr. President,

12     honourable members of the Appeals Chamber, I would like to thank you for

13     giving me the opportunity to address you.  I would like to draw your

14     attention briefly to some aspects of the factual context from the

15     military doctrine aspect.  Nothing has been said about that here these

16     days.

17             I would like to point out that 19 members of NATO, in the spring

18     of 1999, carried out a classical foreign aggression against Yugoslavia.

19     They engaged the first and the fifth echelons of the forces of the

20     separatist terrorist armed rebellion.  It all resulted in a practical

21     simulation of the exodus of Albanian civilians.  In terms of the forces

22     that were engaged, the types and the power and the quantity of lethal

23     weapons which were used in Kosovo and Metohija, they were tantamount to

24     an equivalent of 8 to 10 nuclear bombs that thrown on Hiroshima, and

25     especially in terms of its brutality and its targets, in view of the

Page 683

 1     international and [indiscernible] aggression was one of the most

 2     asymmetrical wars ever conducted in the world.  And while that war for

 3     some who provoked it was a modern war, for others it was a campaign.  I

 4     don't understand the word "campaign."  For the leadership of the

 5     terrorists it was a guerrilla total war, that's what they call it.  And

 6     for military and geopolitical analysts in the world, it was also a

 7     nuclear war because 31.000 nuclear radioactive projectiles were deployed

 8     in as many as 102 locations.  Over the next 4.5 billion years they will

 9     continue bringing death and misfortune to Serbia.  At the same time, to

10     date, this has been the only near neocortical war ever conducted in the

11     history of the world.

12             NATO achieved its goals on the 24th of March, 1999, and it did

13     not pay much attention to its targets.  The complete border area was

14     carpeted by aerial bombs.  Everything that looked like a possible

15     military threat, including even wooden pillars, everything was their

16     target.  Densely populated urban neighbourhoods were targeted every day,

17     several hundred times in one city.  Easily discernible commercial and

18     production facilities were especially interesting, as well as the long

19     columns of red Albanian tractors belonging to Albanian civilians which

20     were on their way back to their homes.  Even the famous Charlie, the

21     famous aircraft pilot, could distinguish them from Serbian tanks.  NATO

22     commanders ordered the massacre of those civilians and the whole world is

23     aware of that.

24             In the territory of the region alone, NATO carried out

25     2.000 air-strikes or 30 air-strikes every day.  There were several

Page 684

 1     hundreds of rocket strikes, and in all of those attacks, civilian targets

 2     accounted for 36 to 38 per cent of all the targets.

 3             Unfortunately, Your Honours, these are irrefutable, horrendous,

 4     terrible facts describing NATO aggressors' activities in the area and its

 5     contribution to the misfortune of all those who happened to found

 6     themselves there at the time.

 7             Truth be told, or, rather, it is true that in Kosovo and Metohija

 8     alone, NATO killed as many as 500 civilians and destroyed over

 9     700 various facilities.

10             These facts cannot be masked by any conflation, by exhibitions,

11     or by the abolition of those who caused all that misfortune.

12             In the territory of the region during the war, death came from

13     high altitudes, from distances over 2.500 kilometres, across -- from

14     across the border facing Albania on a front line stretching for several

15     dozens of kilometres, from a hundred of Albanian villages which had been

16     transformed into terrorist strongholds or paramilitary bases.  According

17     to the principle of two villages of which one was a terrorist stronghold

18     and the other served for the removal of civilians into them.  The tactic

19     of Mao Tse-tung of a thousand fires was applied which means from all

20     sides, from all places at any time.

21             In the conditions of such a war inferno and war chaos, the

22     population sought salvation in flight, movement, transfer, in seeking

23     shelter, like anywhere elsewhere where there's death and where is fire.

24     Their roads led to Albania, Serbia, Macedonia, Montenegro, Turkey,

25     Croatia, to far away countries in the West, as far as possible away from

Page 685

 1     death.

 2             The UNHCR data say that 54 per cent of the Serbian and

 3     non-Albanian population of the region and 45 per cent of the Albanian

 4     population sought refuge outside of the territory of the region during

 5     the war.

 6             In Kosovo and Metohija, members of the Pristina Corps did not

 7     have a place to flee from death.  They suffered as much as 95 per cent of

 8     the losses of the total losses of the Army of Yugoslavia, and the same

 9     destiny was shared by several hundred thousand of Albanian civilians who

10     believed that they would survive with the help of the Pristina Corps.

11     And this is still the talk of the day among Albanians in Kosovo and

12     Metohija.

13             Therefore at the beginning of spring over 14 years ago, at the

14     focal point of the strategic defence in the war inferno, the

15     Pristina Corps found itself in a strategic trap faced with a mission

16     impossible.  In such conditions which would have been difficult to tackle

17     by any military, the corps -- the corps employed a tactic that

18     immediately after the war NATO named the 4M tactic - masking, manoeuvre,

19     mobility, morale.  When translated --

20             JUDGE LIU:  Mr. Lazarevic, I believe that your time is up.  So

21     you may have one more minute to finish your statement.

22             THE APPELLANT LAZAREVIC: [Interpretation] Your Honours, Judges of

23     the Appeals Chamber, at ten Status Conferences I advised the President,

24     during 122 minutes in total, with the status of my health.  In June last

25     year, the last team of medical consultants concluded that I was a patient


Page 686

 1     whose health is seriously undermined, requiring urgent measures to bring

 2     his health up to a tolerable level and I would say at least up to the

 3     level of a detainee.  In the past year there have been no such measures.

 4     God help me, but I also hope the Registry will not forget me either, or

 5     the Trial -- or the Appeals Chamber, as far as my health is concerned.

 6             Your Honours, thank you for your attention.  Thank you for your

 7     patience and your understanding, I hope.

 8             Merci beaucoup, xiexie, spasiba, grazie, tesekkur ederim.

 9             [Interpretation] My gratitude is sincere, and I hope you will

10     excuse me for my bad pronunciation.

11             JUDGE LIU:  Thank you.  Thank you very much, Mr. Lazarevic.

12             Mr. Lukic -- yes.

13             MR. CEPIC:  I'm sorry for interruption, Your Honour.  With your

14     leave, just one correction in transcript.  Page 110, line 22, I think

15     that the words "under the order of KLA" missing in transcript.

16             JUDGE LIU:  Thank you very much.

17             MR. CEPIC:  Thank you, Your Honour.

18             JUDGE LIU:  Mr. Lukic, you also have ten minutes to make a

19     personal statement.  You also have ten minutes to make your personal

20     statement.

21             THE APPELLANT LUKIC: [Interpretation] Thank you.  Your Honours,

22     I'm truly sorry and I truly regret all the casualties, especially the

23     civilian ones, and the suffering of the citizens caused by the

24     unfortunate war in Kosovo.  I want to tell you that I did not go to

25     Kosovo of my own volition, but following orders and the law.  I went

Page 687

 1     there neither willingly nor voluntarily.  My assignment to Kosovo was the

 2     result of a regular rotation of the head of staff that was done annually

 3     for a number of years before that.  The duties I was sent to perform were

 4     the police duties envisaged by the constitution and the law.  The safety

 5     of both the Serbs and the Albanians was extremely jeopardised by the

 6     criminal activities of the terrorist organisation that called itself the

 7     KLA.

 8             The authority of the staff and me as its head was rather limited.

 9     The staff was not a command body and I was not a commander, neither

10     de jure nor de facto.  Thus, for example, I was not authorised to decide

11     on or institute any disciplinary, misdemeanour or criminal proceedings

12     against police officers who violated the law.  I was not in a position to

13     suspend or dismiss any senior police officer.  You will agree without

14     those powers there can be no command function.

15             That I was not a commander is also confirmed by the following

16     fact:  On the eve of the bombing, Minister Stojilkovic informed me that,

17     as agreed with President Milosevic, he had sent his assistant,

18     Lieutenant-General Obrad Stevanovic to Kosovo with the task of commanding

19     and controlling all the Ministry of Interior forces for the duration of

20     the state of war.  The evidence confirms that this was indeed case.

21             In addition to being an assistant minister and the chief of

22     police administration, General Obrad Stevanovic was also de jure and

23     de facto the commander of all the PJP units of the Serbian MUP.  Besides

24     the three functions he discharged, Obrad Stevanovic was also known to be

25     fully trusted by Stojilkovic and Milosevic alike.

Page 688

 1             When the bombing started, the security situation became dramatic.

 2     All those who found themselves in Kosovo were in danger, especially

 3     civilians.  Despite my limited powers and authority, I demanded that the

 4     civilian population be additionally protected and that all perpetrators

 5     of crimes be arrested.  During the 78 days of the bombing and constant

 6     terrorist attacks, the police identified and filed criminal reports

 7     against at least 785 perpetrators.  443 of whom were arrested

 8     immediately.  Over 95 per cent of them were Serbs, including 46 policemen

 9     and 97 soldiers.  Almost all of the crimes concerned were committed

10     against the Kosovo Albanians.

11             My commitment and my insistence on arresting anyone who committed

12     crimes was met with disapproval by some of the Serbian political leaders

13     in Kosovo.  The most prominent among them intended even to have me

14     liquidated because of the arrests of police officers who had killed

15     Albanian civilians.  I faced no less serious threats again in 2001, when

16     I initiated the investigation of the mass graves and the crimes against

17     Albanians.

18             Everything I did in my entire professional career was for

19     protecting citizens.  I never discriminated against people on ethnic or

20     any other grounds.  I was brought up in this spirit and trained to act in

21     this manner since I was 15.

22             During my tenure in Kosovo, I did not personally commit any

23     crime, nor did I order, plan, instigate, aid, conceal or otherwise

24     participate in any crime.  All my actions, every word I said, and every

25     letter I wrote were aimed at preventing crimes.  Therefore, I wish to

Page 689

 1     emphasise once again that I am not guilty of any crimes that I have been

 2     convicted of.  And I did not know of any of these crimes at the time.

 3             I found out about the joint criminal enterprise from the

 4     indictment.  I was never aware of any plan, intent or objective to have

 5     the Kosovo Albanians expelled.  No one ever requested or suggested to me

 6     to do anything of that sort, and if they had, I most certainly would not

 7     have participated in it.  I cannot accept the finding in the judgement

 8     that I was a member of a joint criminal enterprise headed by Milosevic.

 9     It was only after being sent to Kosovo in mid-1998, that I was personally

10     introduced to Milosevic, Milutinovic, Sainovic, Pavkovic, and Lazarevic.

11     I was never a favourite or a confidante of Milosevic or of Minister

12     Stojilkovic or of his assistants Djordjevic and Stevanovic.  Quite the

13     contrary, all I ever experienced from them was humiliation and

14     degradation.  This fact was common knowledge Serbia.  Hence the decision

15     of the government that was formed after the fall of Milosevic to have me

16     promoted and appoint me as chief of police of Serbia.  Moreover, foreign

17     intelligence agencies that were involved in the background checks before

18     my appointment had no objections as to my conduct in Kosovo.

19             Your Honours, these are some of the facts.  I hope you will take

20     into account in your deliberations regarding the appeal brief and our

21     oral submissions.  I hope that your decision will remedy the injustice

22     done to me by the trial judgement.

23             Thank you very much for allowing me to address you.

24             JUDGE LIU:  Thank you, Mr. Lukic.  Any other corrections?

25             MR. BAKRAC:  Here is another.  We have one correction,

Page 690

 1     Your Honour.

 2             JUDGE LIU:  Yes.

 3             MR. BAKRAC:  Page 114, line 10, Mr. Lukic mentioned Serbian

 4     political leaders in Kosovo and he mentioned local Serbian political

 5     leaders in Kosovo, because there were some others who were not local from

 6     Kosovo.

 7             JUDGE LIU:  Thank you.  Mr. Kremer.

 8             MR. KREMER:  Yes, in -- I've had the opportunity to follow up on

 9     Judge Tuzmukhamedov's corrections or suggestions that we -- I made an

10     error in my submissions and you were indeed correct, and I apologise for

11     that.  And I'd like to point out three errors.  One is page 98, line 11.

12     It should have read Volume II, paragraph 1176.  Paragraph 90 -- or

13     page 98, line 14, should have read Volume II, paragraph 1177, and then

14     the third reference in that sequence, page 98, line 16, again should have

15     read Volume II, paragraph 1150, and again I apologise.

16             JUDGE TUZMUKHAMEDOV:  Thanks very much.  I guess you missed two

17     lunches judging by the way you pronounced my name.

18             JUDGE LIU:  Thank you.  That concludes the Appeals Hearing in

19     this case.  The Appeals Chamber would like to thank the parties for their

20     submissions.  We would also like to thank the translators, the court

21     staff for all their assistance over the course of this week.  The

22     Appeals Chamber will deliberate and issue our judgement in due course.

23             The hearing is adjourned.

24                           --- Whereupon the Appeals Hearing adjourned

25                           at 4.32 p.m.