Tribunal Criminal Tribunal for the Former Yugoslavia

Page 709

 1                           Thursday, 23 January 2014

 2                           [Appeals Judgement]

 3                           [Open session]

 4                           [The Appellants entered court]

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

 6             JUDGE LIU:  Registrar, would you please call the case, please.

 7             THE REGISTRAR:  Good morning, Your Honours.

 8             This is case IT-05-87-A, the Prosecutor versus Nikola Sainovic,

 9     Nebojsa Pavkovic, Vladimir Lazarevic, and Sreten Lukic.

10             JUDGE LIU:  Thank you.

11             May I now please have the appearances of the parties.  First

12     Prosecution.

13             MR. KREMER:  Good morning, Mr. President.  Peter Kremer,

14     Daniela Kravetz appearing on behalf of the Prosecution, and we're

15     assisted this morning by our Case Manager, Colin Nawrot.  Thank you.

16             JUDGE LIU:  Thank you very much.

17             Now the Defence counsel, please.

18             MR. FILA: [Interpretation] Mr. President, Toma Fila and Vlade

19     Petrovic, lawyers from Belgrade, on behalf of Mr. Sainovic.

20             JUDGE LIU:  Thank you.

21             MR. ALEKSIC: [Interpretation] Good morning, Your Honours.

22     Aleksandar Aleksic, Defence of General Pavkovic.

23             JUDGE LIU:  Thank you.

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

25     behalf of the Defence of General Lazarevic, Mihajlo Bakrac, Djuro Cepic,


Page 710

 1     and Milan Petrovic.

 2             JUDGE LIU:  Thank you.

 3             MR. IVETIC:  Good morning, Your Honours.  Dan Ivetic with

 4     Branko Lukic and our assistant, Mr. Milenko Dundjer, appearing on behalf

 5     of Appellant Sreten Lukic.

 6             JUDGE LIU:  Thank you.

 7             Before we start, can all the parties hear the proceedings in a

 8     language that they understand?

 9             Mr. Sainovic.

10             THE APPELLANT SAINOVIC: [Interpretation] Yes, Your Honour, I can

11     follow.

12             JUDGE LIU:  Thank you.  You may sit down.

13             Mr. Pavkovic.

14             THE APPELLANT PAVKOVIC: [Interpretation] Yes, Your Honour, I can

15     follow.

16             JUDGE LIU:  Thank you very much.

17             Mr. Lazarevic.

18             THE APPELLANT LAZAREVIC: [Interpretation] I can follow.

19             JUDGE LIU:  Thank you.

20             Mr. Lukic.

21             THE APPELLANT LUKIC: [Interpretation] Yes, Your Honour.

22             JUDGE LIU:  Thank you very much.

23             The Appeals Chamber convenes today in accordance with the

24     Scheduling Order issued on 15 November 2013 and pursuant to Rule 117(D)

25     of the Tribunal's Rules of Procedure and Evidence to deliver its


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 1     Judgement in the case of the Prosecutor versus Nikola Sainovic, Nebojsa

 2     Pavkovic, Vladimir Lazarevic, and Sreten Lukic.

 3             Following the practice of the Tribunal, I will not read out the

 4     text of the Judgement, except for the disposition, but instead will

 5     summarise the essential issues on appeal and the central findings of the

 6     Appeals Chambers.  This oral summary does not constitute any part of the

 7     official and authoritative judgement of the Appeals Chamber, which will

 8     be distributed in writing to the parties at the close of this hearing.

 9             In the written judgement when referring to the names of

10     geographic locations, both Albanian and the Bosnian, Croatian, Serbian

11     versions are used.  Solely for the convenience of today's summary, I will

12     use only the Bosnian, Croatian, and Serbian version.

13             Background of the case.

14             The events giving raise to this case tack place between March and

15     June 1999 and concern the forcible displacement of the Kosovo Albanian

16     population in Kosovo.  The Trial Chamber found that following the

17     commencement of the NATO bombing on the 24th March 1999, a campaign of

18     violence was launched against the Kosovo Albanian civilian population,

19     during which numerous Kosovo Albanians were forcibly displaced, incidents

20     of killing and sexual assaults took place, and the mosques were

21     intentionally destroyed.  The Trial Chamber held that neither the NATO

22     bombing, nor the ongoing armed conflict between Kosovo Liberation Army,

23     or KLA, and the forces of the Federal Republic of Yugoslavia or FRY and

24     Serbia were the primary cause of the flight of hundreds of thousands of

25     Kosovo Albanians.  Rather, the Trial Chamber held that it was the


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 1     deliberate actions of the forces of FRY and Serbia during the campaign of

 2     violence that caused the departure of at least 700.000 Kosovo Albanians

 3     from Kosovo.

 4             The Trial Chamber further found that "during the time of the

 5     crimes alleged in the indictment," a joint criminal enterprise, or JCE,

 6     existed, the common purpose of which was to forcibly displace

 7     Kosovo Albanian population both within and without Kosovo through a

 8     widespread and systematic campaign of terror and violence.  The Trial

 9     Chamber found that this was to ensure continued control by the

10     authorities of FRY and Serbia over Kosovo.  The Trial Chamber also

11     concluded that while the crimes of deportation and forcible transfer were

12     within the ambit of the common purpose, the crimes of murder as a

13     violation of the laws and the customs of war, and the murder and

14     persecution through murder, sexual assault, and the destruction of or

15     damage to religious property as crimes against humanity fell outside the

16     common purpose of the JCE.

17             During the period relevant to the indictment, Mr. Sainovic was

18     the deputy prime minister of FRY; Mr. Pavkovic was the commander of the

19     3rd as Army of the Army of Yugoslavia, or VJ; Mr. Lazarevic was commander

20     of the Pristina Corps of the VJ; and Mr. Lukic was the head of the staff

21     of the Ministry of Interior of the Republic of Serbia in Pristina, also

22     referred to as MUP staff.  I will refer to them collectively as

23     appellants.  The Trial Chamber concluded that Mr. Sainovic, Mr. Pavkovic,

24     Mr. Lukic participated in the JCE as each of them shared the intent to

25     forcibly displace Kosovo Albanian population and the significantly


Page 713

 1     contributed to the JCE.  With respect to the crimes following outside the

 2     common purpose, the Trial Chamber found that the commission of murder and

 3     the persecution through murder and destruction of and the damage to

 4     religious property were reasonably foreseeable to Mr. Sainovic,

 5     Mr. Pavkovic, Mr. Lukic.  The Trial Chamber further found that the

 6     commission of the persecutions through sexual assaults was reasonably

 7     foreseeable to Mr. Pavkovic, but not to Mr. Sainovic and Mr. Lukic.

 8             The Trial Chamber convicted Mr. Sainovic of committing, through

 9     participation in JCE, deportation, other inhumane acts (forcible

10     transfer) murder, and the persecution as crimes against humanity and the

11     murder as a violation of the laws and the customs of war.  He was

12     sentenced to 22 years of imprisonment.

13             The Trial Chamber convicted Mr. Pavkovic of committing, through

14     participation in the JCE, deportation, other inhumane acts (forcible

15     transfer), murder, and the persecution as crimes against humanity and

16     murder as a violation of laws or customs of war.  He was sentenced to 22

17     years of imprisonment.

18             The Trial Chamber convicted Mr. Lukic of committing, through

19     participation in the JCE, deportation, other inhumation acts (forcible

20     transfer), murder, and the persecution as crimes against humanity, and

21     the murder as a violation of the laws or customs of war.  He was

22     sentenced to 22 years of imprisonment.

23             The Trial Chamber convicted Mr. Lazarevic of aiding and abetting

24     the crimes of deportation and other inhumane acts, forcible transfer, as

25     crimes against humanity in which the VJ was involved.  The Trial Chamber


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 1     acquitted Mr. Lazarevic as aiding and abetting murder as a crime against

 2     humanity, murder as a violation of the laws and the customs of war, and

 3     the persecution through murder as a crime against humanity.  He was

 4     sentenced to 15 years of imprisonment.

 5             Each of the Appellants challenged his conviction and sentence.

 6     The Office of the Prosecutor, herein after Prosecution, brought six

 7     grounds of appeal against the acquittal of each appellant on certain

 8     counts and in relation to their sentences.

 9             The Appeals Chambers heard the oral submissions of the parties

10     from 11 to 15th March 2013.

11             I now turn to the contentions of the Appellants and the

12     Prosecution, addressing first the submissions regarding alleged errors in

13     relation to fair trial.

14             Alleged error in relation to fair trial.

15             Mr. Pavkovic and Mr. Lukic both alleged a violation of their

16     right to a fair trial due the lack of adequate time and facilities for

17     the preparation of their Defence cases.  Based on the holistic assessment

18     of Trial Chamber's management of the proceedings, the Appeals Chamber

19     found that Mr. Pavkovic and Mr. Lukic were accorded adequate time and

20     facilities for the preparation of their Defence.  In relation to

21     Mr. Lukic's remaining challenges, the Appeals Chamber found no error in

22     the Trial Chamber's relevant determinations or any apprehension of bias

23     on its part.

24             Alleged errors in relation to the indictment.

25             I now turn to parties' submissions regarding alleged errors in


Page 715

 1     relation to the indictment.

 2             Mr. Sainovic argued that the Trial Chamber erred in convicting

 3     him as the political co-ordinator of the VJ and the MUP forces in Kosovo

 4     as this allegation was not adequately pleaded in the indictment.  The

 5     Appeals Chamber finds that the term "political co-ordinator" does not

 6     constitute a material fact in itself that should have been pleaded in the

 7     indictment and therefore dismisses Mr. Sainovic's appeal, in this regard.

 8             Mr. Lazarevic argues that the Trial Chamber erred in holding him

 9     responsible for deportation and forcible transfer committed in the area

10     of the village of Cirez in the Srbica municipality on the basis of acts

11     that occurred outside time-frame specified in the indictment.  The

12     Appeals Chamber considers that the time-frame set out in paragraph 72(C)

13     of the indictment, when read together with the allegations contained in

14     the chapeau of the same paragraph, provides sufficient notice with

15     respect to the timing of the acts.  The Appeals Chamber thus finds that

16     the indictment adequately put Mr. Lazarevic on notice as to the date of

17     the crime charged and dismisses his appeal, to the extent that it alleges

18     a defect in the indictment.

19             Mr. Lukic argues that the Trial Chamber erred in holding him

20     responsible for the murder of victims who were not listed in the

21     indictment.  Having examined the parties submissions, the Appeals Chamber

22     found that only four victims of murder referred to by Mr. Lukic were not

23     mentioned by name in the Schedules annexed to the indictment.  Given the

24     circumstances of this case, including the high number of victims alleged,

25     Mr. Lukic's distance from the actual killings, and the fact that the


Page 716

 1     Schedules to the indictment were not meant to provide exhaustive lists,

 2     the Appeals Chamber found that the omission of the victims' names does

 3     not amount to a defect in the indictment.  The Appeals Chamber therefore

 4     dismisses the relevant part of Mr. Lukic's appeal.

 5             The Prosecution argues that the Trial Chamber erred in law in

 6     finding that specific deportations and forcible transfer detailed in

 7     paragraph 72 of the indictment was not charged as a form of persecution

 8     under Count 5.  The Appeals Chamber finds that the Prosecution has failed

 9     to raise an objection to the Trial Chamber's interpretation of the

10     indictment when it could have reasonably done so.  It further finds that

11     the Prosecution has waived its right to raise this argument on appeal.

12     The Appeals Chamber therefore dismisses Prosecution's appeal in the

13     relevant.

14             The Appeals Chamber observed that the crimes of deportation and

15     other inhumane acts, forcible transfer, committed in Tusilje in Srbica

16     municipality on 29th March 1999 were not pleaded in the indictment.  The

17     indictment was thus defective in this respect and the defect was not

18     subsequently cured.  The Appeals Chamber finds that the omission of the

19     incidents in Tusilje and the resulting lack of notice causes a prejudice

20     and materially impaired the Appellants in the preparation of their

21     Defence.  Accordingly, the Appeals Chamber vacates the convictions of

22     Mr. Sainovic, Mr. Pavkovic, Mr. Lazarevic, and Mr. Lukic in relation to

23     the incidents in Tusilje on 29 March 1999.

24             Alleged errors concerning the mens rea chapeau requirement of

25     Article 5 of the Statute.


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 1             Mr. Pavkovic raises a number of challenges to the Trial Chamber's

 2     findings in relation to the mens rea chapeau requirement of crimes

 3     against humanity.  The Appeals Chamber holds that to satisfy the mens rea

 4     chapeau requirement of Article 5 of the Tribunal's Statute, the accused

 5     must have known of the attack against the civilian population and that

 6     his act comprised part of the attack or at least must have taken the risk

 7     that his acts were part thereof.  For the reasonings set out in the

 8     Judgement, the Appeals Chamber discerns no error in the Trial Chamber's

 9     relevant findings.  Accordingly, the Appeals Chamber dismisses

10     Mr. Pavkovic's appeal in this regard.

11             Underlying crimes.

12             In all of the 13 municipalities where specific crimes were

13     charged, the Trial Chamber found that during the spring of 1999, forces

14     of FRY and Serbia deliberately and forcibly displaced Kosovo Albanian

15     civilians, both within and outside Kosovo.  The Trial Chamber also found

16     that during the forcible displacements of the Kosovo Albanian population,

17     the FRY and the Serbian forces killed at least 600 individuals, destroyed

18     or damaged mosques, and sexually assaulted Kosovo Albanian women.

19             Mr. Lazarevic and Mr. Lukic challenge the Trial Chamber's

20     findings on the commission of the forcible displacement by the FRY and

21     the Serbian forces.  The Appeals Chamber found that, with the exception

22     of the two locations, Mr. Lazarevic and Mr. Lukic have failed to

23     demonstrate an error in the Trial Chamber's findings.  Only in relation

24     to the Kacanik town and Turicevac, the Appeals Chamber finds that no

25     reasonable trier of fact could have a concluded that the only reasonable


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 1     inference was that members of the VJ forces in relation to the Kacanik

 2     town and the members of the VJ and MUP forces in relation to the

 3     Turicevac caused the displacement of the population.  Accordingly, the

 4     Appeals Chamber grants Mr. Lazarevic's argument and then vacates his

 5     conviction in relation in relation to the incident in Kacanik town.  The

 6     Appeals Chamber also vacates the convictions of Mr. Sainovic,

 7     Mr. Pavkovic, Mr. Lazarevic, and Mr. Lukic in relation to the incidents

 8     in the Turicevac.

 9             The Prosecution has appealed against the Trial Chamber's

10     acquittal of Mr. Lazarevic in relation to villages in three

11     municipalities.  In this regard, the Prosecution submits that the

12     Trial Chamber erred by failing to apply its own finding that VJ

13     participated in deportation and forcible transfer as crimes against

14     humanity in those locations.

15             In volume 2 of the Trial Judgement, the Trial Chamber found that

16     Kosovo Albanians from the village in Kosovska Mitrovica, Prizren, and

17     Urosevac municipalities were forcibly displaced by MUP and VJ forces.

18     However, in volume 3 of the Trial Judgement, the Trial Chamber did not

19     hold Mr. Lazarevic responsible for aiding and abetting the crimes of

20     forcible displacement in these locations, stating that these crimes were

21     carried out by the MUP, without the participation of the VJ.  Recalling

22     that a Trial Judgement must be read as a whole, the Appeals Chamber found

23     that Trial Chamber's statement in volume 3 of Trial Judgement was an

24     oversight and that Trial Chamber therefore erred in failing to apply its

25     own factual finding that the VJ was involved in the commission of the


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 1     crimes.  Accordingly, the Appeals Chamber grants, in part, the

 2     Prosecution's appeal.  However, the Appeals Chamber, Judge Ramaroson

 3     dissenting, declines to enter new convictions on appeal.

 4             The Trial Chamber further found a total of at least 600

 5     individuals were killed by VJ and MUP forces during the course of their

 6     operations to forcibly displace the Kosovo Albanian civilian population.

 7     Mr. Lukic raises several challenges to Trial Chamber's findings

 8     concerning these killings, including regarding the identification of the

 9     victims and the cause of their death.

10             The Appeals Chamber finds merit solely in Mr. Lukic's arguments

11     concerning the murders committed in the course of the Reka valley

12     operation in Djakovica municipality.  In particular, Mr. Lukic argues

13     that some of the 287 victims that the Trial Chamber found were murdered

14     during the Reka valley operation could have been combatants.  The Appeals

15     Chamber notes that the Trial Chamber failed to determine whether at the

16     time of their death each victim was a civilian taking no active part in

17     hostilities or was hors de combat.  The Appeals Chamber considers that in

18     absence of sufficient evidence under circumstances and the status of each

19     of the victims, the Trial Chamber erred to the extent it found that all

20     287 killings during the Reka valley operation amounted to murder as a

21     crime against humanity and as a violation of laws or customs of war.

22     Having reviewed the relevant evidence, the Appeals Chamber is satisfied

23     that it has only been established beyond a reasonable doubt that 13

24     individuals killed were taking no active part in hostilities at the time

25     of their deaths.  The Appeals Chamber therefore vacates both


Page 720

 1     Mr. Pavkovic's and Mr. Lukic's convictions for murder under Articles 3

 2     and 5 of the Statute with respect to the 274 of the 287 Kosovo Albanians

 3     found to be murdered.  The Appeals Chamber dismisses Mr. Lukic's

 4     remaining challenges to the Trial Chamber's findings on murder.

 5             With respect to the Trial Chamber's findings on the commission of

 6     sexual assault, the Prosecution argues that the Trial Chamber erred when

 7     it failed to find the rapes of K31, K14, and K62 in Pristina were

 8     committed with discriminatory intent, thus constitutes a persecution.

 9     The Trial Chamber found that the Prosecution had failed to present any

10     evidence from which the discriminatory intent of the perpetrators of the

11     rape could be inferred notwithstanding its findings that the rapes were

12     committed by the VJ and MUP forces in the course of the operation to

13     remove large numbers of Kosovo Albanians from Pristina town.  The Appeals

14     Chamber considers that the Trial Chamber failed to properly consider the

15     context in which the rapes occurred and erred in finding that there was

16     no evidence from which the discriminatory intent of the perpetrators

17     could be inferred.  The Appeals Chamber is satisfied that the only

18     reasonable inference to be drawn from the evidence presented at trial is

19     that the three women were raped with discriminatory intent by members of

20     the VJ and the MUP and that these acts constitute persecution as a crime

21     against humanity.  The Appeals Chambers thus grants, in part,

22     Prosecution's appeal.

23             Joint criminal enterprise.

24             I now turn to the submissions of Mr. Sainovic, Mr. Pavkovic, and

25     Mr. Lukic with regard to their individual criminal responsibility under


Page 721

 1     JCE liability.  I will first address their contentions concerning the

 2     common purpose of the JCE and subsequently turn to their arguments

 3     regarding their participation in the JCE.  The existence of a common

 4     plan, desire, or purpose.

 5             Mr. Sainovic, Mr. Pavkovic, and Mr. Lukic submits that the

 6     Trial Chamber erred in concluding that it was established beyond a

 7     reasonable doubt that there was a common purpose shared by the JCE

 8     members during the time of the crimes alleged in the indictment that

 9     amounted to or involved the commission of those crimes under the Statute,

10     that this common purpose was to forcibly displace a number of

11     Kosovo Albanians, both within and outside Kosovo.

12             The Appeals Chamber observes that the Trial Chamber made findings

13     on the commission of the crimes charged in the indictment in relation to

14     the events starting from 24th March until the end of May, 1999.

15     Therefore, the Appeals Chamber understands that Trial Chamber's finding

16     on the existence of the common purpose to be related to the period of the

17     occurrences of those crimes, namely, from 24th March until the end of

18     May 1999.

19             The Appeals Chamber recalls that, while the Trial Chamber

20     inferred the existence of the common purpose from several factors, it

21     placed the most weight on the pattern of forcible displacement of

22     Kosovo Albanians and the confiscation of their identification documents.

23     Mr. Sainovic, Mr. Pavkovic, and Mr. Lukic have failed to demonstrate that

24     the Trial Chamber erred in its assessment of the evidence regarding those

25     two factors.  The Appeals Chamber found that the evidence regarding those


Page 722

 1     two factors is indeed sufficient for a reasonable trier of fact to find

 2     that the only reasonable inference is that there existed a common purpose

 3     as found by the Trial Chamber.  The Appeals Chamber dismisses in their

 4     entirety Mr. Sainovic's, Mr. Pavkovic's, Mr. Lukic's arguments in

 5     relation to the Trial Chamber's finding on the existence of the common

 6     purpose.

 7             The existence and authority of the Joint Command.

 8             I now turn to the submissions of Mr. Sainovic, Mr. Pavkovic, and

 9     Mr. Lukic concerning an entity known as the Joint Command for Kosovo and

10     Metohija or simply the Joint Command.  The Trial Chamber found that an

11     entity known as the Joint Command composed of politicians and VJ and MUP

12     members was created around June 1998 and that it had influence over VJ

13     and MUP forces in Kosovo and played a role in the co-ordination of those

14     forces in the second half of 1998 and in the first half of 1999.  The

15     Trial Chamber considered Mr. Sainovic's, Mr. Pavkovic's, and Mr. Lukic's

16     respective roles in the co-ordination of the VJ and MUP forces through

17     Joint Command to infer their intent and the contribution to the common

18     purpose of the JCE.  For the reasons set out in the Judgement, the

19     Appeals Chamber, Judge Tuzmukhamedov dissenting, found that Mr. Sainovic,

20     Mr. Pavkovic, and Mr. Lukic have failed to demonstrate any error in the

21     Trial Chamber's finding on the existence and the authority of the joint

22     command.  The Appeals Chamber, Judge Tuzmukhamedov dissenting, therefore

23     dismisses their submissions in this regard.

24             Mr. Sainovic's participation in the JCE.

25             I know turn to Mr. Sainovic's argument challenging the Trial


Page 723

 1     Chamber's finding that he made significant contribution to the common

 2     purpose of the JCE and that shared intent to forcibly displace part of

 3     the Kosovo Albanian population.  In its assessment of Mr. Sainovic's

 4     participation in the JCE, the Trial Chamber found that he possessed

 5     extensive de facto powers over both VJ and MUP forces in Kosovo and was

 6     the crucial link between the then-FRY President Slobodan Milosevic, who

 7     was in Belgrade, and the VJ and the MUP units that were operating in

 8     Kosovo.  The Trial Chamber found that Mr. Sainovic's role was, therefore,

 9     that of political co-ordinator of the forces in Kosovo.

10             The Appeals Chambers, Judge Tuzmukhamedov dissenting, finds that

11     Mr. Sainovic has not demonstrated any error in the Trial Chamber's

12     finding that he was one of the closest and most trusted associates of

13     Slobodan Milosevic in 1999.  The Appeals Chamber further found that

14     Mr. Sainovic has not demonstrated any error in the Trial Chamber's

15     findings related to his leadership role during Joint Command meetings in

16     1998, his participation at meetings in 1998 at which the plan for

17     combatting terrorism in Kosovo was discussed, his position as chairman of

18     the commission for co-operation with the Kosovo verification mission, his

19     dealings with Ibrahim Rugova, and his participation at the MUP staff

20     meeting on 4 April 1999.  The Appeals Chamber, Judge Tuzmukhamedov

21     dissenting, further found that Mr. Sainovic has failed to show any error

22     in the Trial Chamber's findings concerning the meeting on the

23     4th May 1999 with Milosevic, the meeting at MUP staff on the

24     7th May 1999, and on the 1st June 1999 Joint Command meeting.  The

25     Appeals Chamber, Judge Tuzmukhamedov dissenting, also dismisses


Page 724

 1     Mr. Sainovic's argument concerning his role in liaising with and

 2     influencing the VJ and MUP forces.  The Appeals Chamber also held that

 3     Mr. Sainovic has not demonstrated an error in the Trial Chamber's finding

 4     that he was able to make proposals, give suggestions, and issue

 5     instructions.

 6             While the Appeals Chamber found that the Trial Chamber erred in

 7     relying on Mr. Sainovic's presence at a meeting on the 13th April 1999

 8     with Zlatomir Pesic, it finds, Judge Tuzmukhamedov dissenting, the Trial

 9     Chamber's error has no impact on its conclusion that in 1999 Mr. Sainovic

10     continued to liaise between the VJ and the MUP on the one hand and

11     Milosevic on the other.

12             Moreover, the Appeals Chamber, Judge Tuzmukhamedov dissenting,

13     finds that Mr. Sainovic has not demonstrated that the Trial Chamber erred

14     in finding that he had extensive power over VJ and the MUP forces and

15     acted as a political co-ordinator of those forces in both 1998 and 1999

16     and that his contribution to the common purpose was significant.

17             The Trial Chamber further found that Mr. Sainovic was well aware

18     of the displacements and the crimes taking place in Kosovo in 1998 and

19     continued to acquire the information on the commission of the crimes,

20     including, forcible displacements throughout 1999.  The Appeals Chamber

21     considers that a reasonable trier of fact could have concluded that

22     Mr. Sainovic shared the intent to forcibly displace parts of the

23     Kosovo Albanian population in 1999.  In this regard, the Appeals Chamber

24     upholds the Trial Chamber's finding that Mr. Sainovic's statements

25     insisting on the prevention and the punishment of crimes were merely


Page 725

 1     window dressing.

 2             Consequently, the Appeals Chamber, Judge Tuzmukhamedov

 3     dissenting, upholds that Trial Chamber's finding that Sainovic

 4     participated in the JCE.

 5             In addition, Mr. Sainovic challenges Trial Chamber's finding that

 6     he was responsible for the crime of murders as a violation of the laws or

 7     customs of war and the murder and persecution through murder and the

 8     destruction of and damage to religious property as crime against humanity

 9     pursuant to the JCE III.  The Appeals Chamber found that in reaching its

10     conclusion, the Trial Chamber erroneously applied a higher degree of the

11     foreseeability than that required under correct legal standard.  Further

12     the Appeals Chamber found that in assessing whether murder was

13     foreseeable to Mr. Sainovic, the Trial Chamber erred in concluding that

14     he knew about commission of murder in several locations.

15             Nevertheless, in light of the remaining factual findings of the

16     Trial Chamber and applying the correct legal standard, the Appeals

17     Chamber, Judge Liu dissenting, is satisfied that as of 7 May 1999, it was

18     foreseeable to Mr. Sainovic that murders could be committed and that he

19     willing took that risk.  The Appeals Chamber therefore grants

20     Mr. Sainovic's appeal, in part, and quashes his conviction for murder

21     committed prior to 7 May 1999, pursuant to JCE III.  The Appeals Chamber,

22     Judge Liu dissenting, upholding Mr. Sainovic's conviction for murder

23     committed in Dubrava around 25 May 1999 pursuant to the JCE III.  The

24     Appeals Chamber further found that Mr. Sainovic has failed to demonstrate

25     any error in the factual findings relied upon by the Trial Chamber in


Page 726

 1     concluding that it was foreseeable to him that the persecution through

 2     destruction of or damage to religious property would be committed and

 3     that he willing took that risk.  Since a higher degree of the

 4     foreseeability was met, a lower degree of the foreseeability is

 5     necessarily satisfied.  Mr. Sainovic's arguments are therefore dismissed.

 6             Mr. Pavkovic's participation in the JCE.

 7             I now turn to Mr. Pavkovic's arguments challenging the Trial

 8     Chamber's findings that he significantly contributed to the common

 9     purpose of the JCE and the shared intent to forcibly displace

10     Kosovo Albanian population.  He also contests the Trial Chamber's

11     findings that crimes of both VJ and the MUP are imputable to him.

12             In reaching its conclusions, the Trial Chamber considered that,

13     throughout the period in which the crime was committed, Mr. Pavkovic,

14     inter alia, ordered and supported the operations of the VJ in Kosovo,

15     including joint operation with the MUP, mobilised the troops, and

16     commanded them during these operations.  The Trial Chamber also

17     considered that Mr. Pavkovic contributed to the creation and maintenance

18     of an environment of impunity by under-reporting crimes committed by the

19     forces under his control and then failing to take effective measures in

20     response to information thereon, which encouraged the commission of the

21     crimes by forces under the control of the JCE members.  In addition, the

22     Trial Chamber considered Mr. Pavkovic's close working relationship to

23     Slobodan Milosevic in 1998 and 1999, which enabled him to bypass the VJ

24     chain of command.  The Trial Chamber further found Mr. Pavkovic knew of

25     the crimes committed by VJ and MUP members and allegations thereof in


Page 727

 1     1998 and 1999.

 2             The Appeals Chamber found the Trial Chamber erred in finding that

 3     Mr. Pavkovic contributed to the JCE, prior to the existence of the common

 4     purpose, through his involvement in the process of arming the

 5     non-Albanian population and disarming the Kosovo Albanian population and

 6     deploying additional VJ forces into Kosovo in breach of the agreements

 7     brokered in October 1998.  Nevertheless, the Appeals Chamber considers

 8     that the Trial Chamber's overall conclusion that Mr. Pavkovic made a

 9     significant contribution to the JCE is unaffected by those errors as the

10     Trial Chamber's conclusion was based on the abundance of other evidence,

11     including, Mr. Pavkovic's other conduct, which continued through 1999.

12             Mr. Pavkovic's remaining arguments have not demonstrated that the

13     Trial Chamber erred in finding that he significantly contributed to the

14     common purpose of the JCE and shared the intent to forcibly displace

15     Kosovo Albanian population.  His submissions in this regard are thus

16     dismissed.

17             In addition, Mr. Pavkovic has failed to show that the Trial

18     Chamber erred in concluding that crimes committed by both VJ and MUP

19     forces are imputable to Mr. Pavkovic, pursuant to JCE I.  His arguments

20     in this respect are also dismissed.

21             The Appeals Chamber thus upholds Trial Chamber's finding that

22     Mr. Pavkovic's participated in the JCE.

23             Furthermore, Mr. Pavkovic challenges Trial Chamber's finding that

24     he was responsible for crimes of murder as violation of the laws or

25     customs of war and murder and persecution through murder, sexual assault,


Page 728

 1     and destruction of or damage to religious property as crimes against

 2     humanity pursuant to the JCE III.

 3             As already mentioned with respect to Mr. Sainovic, the Appeals

 4     Chamber finds in reaching its conclusion under JCE III, the Trial Chamber

 5     erroneously applied a higher degree of the foreseeability than that

 6     required under the correct legal standard.  The Appeals Chamber finds

 7     that Mr. Pavkovic has failed to demonstrate any error in the factual

 8     findings relied upon by the Trial Chamber in reaching its conclusion on

 9     his foreseeability of the relevant crimes and the risk he took.

10     Consequently, the Appeals Chamber considers that the error of law

11     committed by the Trial Chamber as to the degree of the foreseeability has

12     no impact to Mr. Pavkovic's conviction.  Mr. Pavkovic's further argument

13     have also failed to demonstrate that the Trial Chamber erred in finding

14     that these crimes outside the scope of the common purpose were imputable

15     to him.  Accordingly, the Appeals Chamber dismisses Mr. Pavkovic's

16     argument with regard to his JCE III liability.

17             Mr. Lukic's participation in the JCE.

18             I now turn to Mr. Lukic's arguments challenging the

19     Trial Chamber's findings as to his role as head of the MUP staff, his

20     participation in, and the contribution to the implementation of the

21     common purpose of the JCE and that he shared the intent to forcibly

22     displace Kosovo Albanian population.

23             The Trial Chamber found that Mr. Lukic made a significant

24     contribution to the JCE as he was the de facto commander over MUP forces

25     deployed in Kosovo from mid-1998 to mid-1999, the bridge between the


Page 729

 1     policy planners in Belgrade and those on the ground in Kosovo, and was

 2     directly involved in the planning process, and in ensuring that

 3     day-to-day operations were conducted by the various MUP forces in

 4     accordance with those plans.

 5             The Appeals Chamber found that the Trial Chamber erred in finding

 6     that Mr. Lukic contributed to the JCE prior to the existence of the

 7     common purpose through his involvement in the process of arming the

 8     non-Albanian population and the disarming the Kosovo Albanian population.

 9     Nevertheless, the Appeals Chamber considers that the Trial Chamber's

10     conclusion that Mr. Lukic made a significant contribution to the JCE is

11     unaffected by this error as it was based on abundance of other evidence,

12     including Mr. Lukic's other conduct as the head of the MUP staff which

13     continued through 1999.  The Appeals Chamber finds Mr. Lukic has failed

14     to demonstrate an error in the Trial Chamber's remaining finding

15     concerning the MUP staff's authority, his role as head of the MUP staff,

16     and his contribution to the JCE.

17             In reaching the conclusion that Mr. Lukic shared the intent with

18     other JCE members to forcibly displace Kosovo Albanian population, the

19     Trial Chamber considered, inter alia, the information Mr. Lukic received

20     both in 1998 and in 1999.  Having due regard to the Trial Chamber's

21     finding on Mr. Lukic's awareness of serious allegations of criminal

22     activities by various forces in Kosovo in mid-to late 1998, and the

23     information he received about the commission of crimes and the mass

24     departure of the civilian populations in 1999, the Appeals Chamber finds

25     that the Trial Chamber's conclusion on Mr. Lukic's knowledge of crimes


Page 730

 1     based on the totality of the evidence was reasonable.  Mr. Lukic's

 2     remaining challenge to the Trial Chamber's findings in relation to his

 3     sharing the intent to forcibly displace parts of the Kosovo Albanian

 4     population are dismissed.

 5             The Appeals Chamber thus upholds the Trial Chamber's finding that

 6     Mr. Lukic parted in the JCE.

 7             Mr. Lukic also challenges the Trial Chamber's finding that he was

 8     responsible pursuant to JCE III for the crimes of murder as violation of

 9     the laws or customs of war and the murder and the persecution through

10     murder and the destruction of or damage to religious property as crimes

11     against humanity.  As already expressed with respect to Mr. Sainovic and

12     Mr. Pavkovic, the Appeals Chamber found that in reaching its conclusion

13     on JCE III, the Trial Chamber erroneously applied a higher degree of the

14     foreseeability than that required under the correct legal standard.

15     Further, the Appeals Chamber finds that in assessing whether murder was

16     foreseeable to Mr. Lukic, the Trial Chamber erred in relying on the

17     information he received about the incidents in Gornje Obrinje.

18             In light of the remaining factual findings of the Trial Chamber

19     and in applying the correct legal standard, the Appeals Chamber grants

20     Mr. Lukic's appeal concerning his responsibility of murder pursuant to

21     JCE III, in part, and quashes his convictions for murder as a violation

22     of the laws or customs of war and the murder and the persecution through

23     murder as a crime against humanity committed prior to or on 1st

24     April 1999, pursuant to the JCE III.

25             The Appeals Chamber upholds Mr. Lukic's conviction for murder at


Page 731

 1     Korenica Meja on 27 April 1999, near Gornja Sudimlja in relation to the

 2     convoys on 2nd and 3rd May 1999 and at Dubrava around the 25th May, 1999,

 3     pursuant to JCE III.  The Appeals Chamber further found that Mr. Lukic

 4     has not demonstrated any error in the Trial Chamber's finding in relation

 5     to his JCE III liability for the destruction or of damage to religious

 6     property.

 7             Prosecution's appeal in relation to JCE III.

 8             I now turn to Prosecution's appeal concerning Mr. Sainovic's and

 9     Mr. Lukic's acquittals for persecution through sexual assaults committed

10     in Beleg, Cirez, and Pristina pursuant to JCE III liability and

11     Mr. Pavkovic's acquittal for persecution through sexual assaults

12     committed in Pristina pursuant to JCE III.

13             Regarding Mr. Sainovic Mr. Lukic, the Prosecution argues that the

14     Trial Chamber erred in law by applying an incorrect legal standard for

15     JCE III mens rea.  It requests the Appeals Chamber to apply the correct

16     legal standard to the facts of the case and to convict Mr. Sainovic and

17     Mr. Lukic for persecutions through sexual assaults.  Regarding

18     Mr. Pavkovic, the Prosecution submits that the Appeals Chamber should

19     convict him for persecutions through sexual assaults committed in

20     Pristina pursuant to JCE III.

21             As already explained with respect to the appeals of Mr. Sainovic,

22     Mr. Pavkovic, and Mr. Lukic, the Appeals Chamber found that the Trial

23     Chamber erred in law in concluding that for JCE III liability to arise,

24     it must be foreseeable to the accused that crime would be committed.  The

25     correct legal standard for the JCE III mens rea requires that it was


Page 732

 1     foreseeable to the accused that such a crime may be committed by a member

 2     of the JCE or one or more of the persons used by any member of the JCE in

 3     order to carry out the actus reus of the crimes forming part of the

 4     common purpose, and the accused willingly took the risk that such a crime

 5     might occur by joining or continuing to participate in the enterprise.

 6     The Appeals Chamber thus applied the correct legal standard for the JCE

 7     III mens rea to the evidence in the record.  In relation to Mr. Sainovic,

 8     it finds, Judge Liu dissenting, that it was foreseeable to him that

 9     persecutions through sexual assaults might be committed in Beleg, Cirez,

10     and Pristina, and that he willingly took that risk.  In relation to

11     Mr. Lukic, Appeals Chamber found it was foreseeable to him that

12     persecution through sexual assaults might be committed in Beleg, Cirez,

13     and Pristina, and that he willing took that risk.  In relation to

14     Mr. Pavkovic, the Appeals Chamber found that it was foreseeable to him

15     that persecution through sexual assaults might be committed in Pristina

16     and that he willingly took that risk.

17             The Appeals Chamber therefore grants Prosecution's appeal in

18     relevant part and finds, Judge Liu dissenting, in relation to

19     Mr. Sainovic that the Trial Chamber erred by not finding Mr. Sainovic and

20     Mr. Lukic liable for persecutions through sexual assaults as a crime

21     against humanity in Beleg, Cirez, and Pristina.  The Appeals Chamber

22     further found that the Trial Chamber erred by not finding Mr. Pavkovic

23     liable for persecution through sexual assaults as a crime against

24     humanity in Pristina.  However, the Appeals Chamber, Judge Ramaroson

25     dissenting, declines to enter new convictions on appeal.


Page 733

 1             Aiding and abetting.

 2             Mr. Lazarevic's conviction for aiding and abetting.

 3             I now turn to Mr. Lazarevic's arguments challenging the Trial

 4     Chamber's findings that he fulfilled actus reus and mens rea of aiding

 5     and abetting the crimes of deportation and inhumane acts, forcible

 6     transfer.

 7             Referring to the Perisic appeal judgement, Mr. Lazarevic submits

 8     that the Trial Chamber erred in failing to determine whether his alleged

 9     acts and omissions were specifically directed to assist the deportation

10     and the forcible transfer and thus in including that he aided, abetted

11     those crimes.

12             The Appeals Chamber disagrees with the holding in the Perisic

13     appeal judgement that Mrksic and Sljivancanin and the Lukic and Lukic

14     appeal judgement support that specific direction is an element of the

15     actus reus of aiding and abetting.  For the reasons set out in the

16     judgement, the Appeals Chamber considers that Mrksic and Sljivancanin and

17     Lukic and Lukic appeal judgement, on one hand, and the Perisic appeal

18     judgement, on the other, diverge on the issue of whether specific

19     direction is an element of the actus reus of aiding and abetting

20     liability.  The Appeals Chamber recalls that where it is faced with

21     previous decisions that are conflicting, it is obliged to determine which

22     decision it will follow or whether to depart from both decisions for

23     cogent reasons in the interests of justice.  In view of the divergence

24     between the judgements, the Appeals Chamber, Judge Tuzmukhamedov

25     dissenting, will determine the correct approach.


Page 734

 1             To this end, the Appeals Chamber has carefully examined the

 2     jurisprudence of the Tribunal and the ICTR as well as the customary

 3     international law and concludes, Judge Tuzmukhamedov dissenting, that a

 4     specific direction is not an element of aiding and abetting liability.

 5     Consequently, the Appeals Chamber, Judge Tuzmukhamedov dissenting,

 6     rejects the approach adopted in Perisic appeal judgement as it is in

 7     direct and material conflict with the prevailing jurisprudence on the

 8     actus reus of aiding and abetting liability and with customary

 9     international law in this regard.

10             In light of the foregoing, the Appeals Chamber finds that in

11     assessing the actus reus of aiding and abetting, the Trial Chamber was

12     not required to determine whether Mr. Lazarevic's acts were specifically

13     directed to assist, encourage, or lends moral support to the commission

14     of the crimes by the VJ.  Thus his arguments to the contrary are

15     dismissed.

16             Mr. Lazarevic also contends that the Trial Chamber erred in

17     finding that he provided practical assistance, encouragement, and the

18     moral support to VJ forces in engaging in forcible displacement, that his

19     conduct had a substantial effect upon the commission of the crimes.  He

20     first challenges the Trial Chamber's findings concerning his involvement

21     and participation in the planning and execution of joint operations of

22     the MUP and the VJ in Kosovo in 1999.  The Appeals Chamber found that in

23     assessing Mr. Lazarevic's conduct, the Trial Chamber erred in relying

24     upon his issuance of the Grom 3 order to the Pristina Corps unit on

25     7 February 1999 as, at the time of the issuance of the order, he did not


Page 735

 1     have the requisite mens rea.  However, in light of the other evidence

 2     relied upon by the Trial Chamber, the Appeals Chamber found that this

 3     error does not affect the Trial Chamber's conclusion on Mr. Lazarevic's

 4     participation in the planning and execution of joint operations in

 5     Kosovo.

 6             Mr. Lazarevic also challenges the Trial Chamber's finding that he

 7     failed to take adequate measures to ensure the proper investigation of

 8     serious crimes committed by the VJ and through this omission, therefore,

 9     aided and abetted forcible displacement committed by the VJ forces.  The

10     Appeals Chamber considered that while Mr. Lazarevic's failure to take

11     investigative and punitive measures against the commission of forcible

12     displacement may have had an effect on the ability of the military

13     prosecutor to pursue perpetrators for such crimes.  This, in itself, is

14     not conclusive for the purpose of establishing aiding and abetting

15     liability.  Rather, in order to fulfil the actus reus of aiding and

16     abetting, it must be demonstrated that any such omission substantially

17     contributed to the continued commission of the forcible displacement.

18     Absent such analysis in the Trial Judgement and in light of the

19     circumstances of this case, the Appeals Chamber considers that

20     irrespective of any failure on Mr. Lazarevic's part to take more adequate

21     measures to report, investigate, and initiate disciplinary measures, no

22     reasonable trier of fact could have found beyond a reasonable doubt that

23     his omission in this respect had a substantial effect on the commission

24     of the forcible displacement.  Accordingly, the Appeals Chamber found

25     that the Trial Chamber erred in finding that Mr. Lazarevic aided and


Page 736

 1     abetted the commission of the forcible displacement through his failure

 2     to take adequate measures to ensure the proper investigation of serious

 3     crimes committed by the VJ.

 4             Mr. Lazarevic further challenged the Trial Chamber's finding that

 5     his inspection of the VJ units provided encouragement and moral support

 6     to VJ forces engaging in the forcible displacement.  The Appeals Chamber

 7     recalls that encouragement and moral support can only form a substantial

 8     contribution to the crime when the principal perpetrators are aware of

 9     it.  The Appeals Chamber finds that the Trial Chamber erred in concluding

10     that the only reasonable inference was that Mr. Lazarevic's inspection of

11     the Pristina Corps units provided encouragement and moral support to the

12     perpetrators.  Mr. Lazarevic's conduct in this respect could therefore

13     not to be considered as aiding and abetting the commission of deportation

14     and forcible transfer by the VJ forces.

15             The Appeals Chamber considers, however, that the identified

16     errors have no impact on the Trial Chamber's ultimate conclusion that

17     Mr. Lazarevic provided practical assistance to members of the VJ involved

18     in the commission of forcible transfer and the deportation and that it

19     had substantial effect on the commission of those crimes.  The

20     Appeals Chamber recalls that the Trial Chamber found that Mr. Lazarevic

21     participated in the planning and execution of joint operations conducted

22     by the VJ and therefore substantially contributed to the commission of

23     the crimes by the VJ as such conduct provided assistance in terms of

24     soldiers on the ground to carry out the acts, organising and equipping VJ

25     unit, and the provision of the weaponry, including tanks, to assist those


Page 737

 1     acts.

 2             Mr. Lazarevic also argued that the Trial Chamber erred in finding

 3     that he possessed the requisite mens rea for aiding and abetting the

 4     crimes of deportation and the forcible transfer committed by the VJ.

 5     Mr. Lazarevic submitted that the Trial Chamber erred in finding that

 6     based on his knowledge of event and crimes in 1998, he was aware that

 7     similar excessive uses of forces and the forcible displacement were

 8     likely look to occur if he ordered the VJ to operate in Kosovo in 1999.

 9     The Appeals Chamber notes that the Trial Chamber did not find that

10     forcible displacement took place in 1998.  At most, the information

11     Mr. Lazarevic received in 1998 made him aware of the probability that the

12     VJ forces would use excessive and discriminate force or commit other

13     crimes if ordered to operate in Kosovo in 1999.  However, the

14     Appeals Chamber considered that on the basis of such knowledge alone no

15     reasonable trier of fact could have concluded that the only reasonable

16     inference was that Mr. Lazarevic was aware of the forcible displacement

17     was likely look to occur if we ordered the VJ to operate in Kosovo in

18     1999.  The Appeals Chamber thus finds that the Trial Chamber erred in

19     this respect.

20             However, for the reasons set out in the judgement, the Appeals

21     Chamber finds a reasonable trier of fact could have concluded that the

22     only reasonable inference from the evidence is that as of 24 March 1999,

23     when the first crimes in Pristina took place, Mr. Lazarevic was aware of

24     the campaign of terror, violence, and forcible displacement carried out

25     by the VJ and MUP forces against Kosovo Albanian population.  Therefore,


Page 738

 1     the Appeals Chamber dismisses the relevant part of Mr. Lazarevic's

 2     appeal.

 3             The Appeals Chamber thus upholds Trial Chamber's finding that

 4     Mr. Lazarevic aided and abetted the crimes of deportation and inhumane

 5     acts (forcible transfer).

 6             Prosecution's appeal in relation to Mr. Lazarevic.

 7             I now turn to Prosecution's appeal concerning Mr. Lazarevic's

 8     acquittal of the charges of murder as crime against humanity, murder as a

 9     violation of the laws or customs of war, and the persecution through

10     murder as a crime against humanity.

11             The Trial Chamber found that killings was not intended aim of the

12     VJ and the MUP organised campaign.  For this reason, despite the finding

13     that Mr. Lazarevic was aware of the VJ members killing Kosovo Albanians

14     in some instances, the Trial Chamber concluded that he was not aware that

15     VJ and the MUP forces were going into the specific crime sites in order

16     to commit killings.

17             Prosecution argues that in acquitting Mr. Lazarevic of aiding and

18     abetting murder, the Trial Chamber erred in law in relation to the

19     mens rea standard of aiding and abetting.  The Appeals Chamber finds that

20     the Trial Chamber applied a standard whereby it required that

21     Mr. Lazarevic be aware of the essential elements of the specific crime

22     committed, including, the mental state of the perpetrators.  The Appeals

23     Chamber is therefore satisfied that the Trial Chamber applied the correct

24     legal standard.

25             In the alternative, the Prosecution contends that the Trial


Page 739

 1     Chamber erred in fact by acquitting Mr. Lazarevic of aiding and abetting

 2     murder.  However, the Appeals Chamber finds that the Prosecution has

 3     failed to show any error in the Trial Chamber's conclusion that

 4     Mr. Lazarevic did not have the requisite mens rea.  The Appeals Chamber

 5     therefore dismisses the Prosecution's appeal, in the relevant part, and

 6     upholds Mr. Lazarevic's acquittal for aiding and abetting murder.

 7             Sentencing.

 8             I now turn to question of sentencing.  The Appellants and the

 9     Prosecution have all appealed against the sentences imposed by the

10     Trial Chamber.

11             Having considered the parties arguments carefully, the

12     Appeals Chamber finds merit in the arguments of the Prosecution,

13     Mr. Sainovic, Mr. Lukic, pertaining to the Trial Chamber's failure to

14     individualise the sentences as well as Mr. Lukic's argument regarding the

15     assessment of his surrender as a mitigating circumstances.  Accordingly,

16     the Appeals Chamber grants, in relevant parts, the appeals of

17     Prosecution, Mr. Sainovic, Mr. Lukic.  The Appeals Chamber dismisses all

18     other grounds of appeal raised by the Appellants and the Prosecution in

19     relating to the sentencing.

20             I now turn to the impact of the Appeals Chamber's findings on

21     sentence.

22             In this context, the Appeals Chamber recalls that, in addition to

23     its findings on the parties appeals against the sentence, it reverses

24     certain convictions in relation to each Appellant.  The Appeals Chamber

25     considered that in light of the circumstances of this case as well as the


Page 740

 1     gravity of the crimes for which the Appellants are responsible, and

 2     taking into account the principle of proportionality, a limited reduction

 3     in the sentences imposed by the Trial Chamber is warranted in relation to

 4     Mr. Sainovic, Mr. Lazarevic, and Mr. Lukic.

 5             Disposition.

 6             I shall now read out the full operative text of Appeals Chamber's

 7     disposition.

 8             For the foregoing reasons, the Appeals Chamber, pursuant to

 9     Article 25 of the Statute and Rules 117 and 118 of the Rules, noting the

10     respective written submissions of the parties and arguments they

11     presented at the appeal hearing on 11th to 15th March 2013, sitting in

12     open session.

13             Mr. Sainovic, would you please stand up.

14             With respect to Nikola Sainovic, grants, in part, Mr. Sainovic's

15     first ground of appeal and reverses his convictions for committing

16     through his participation in a JCE murder as violation of the laws or

17     customs of war and murder and persecution through murder as crimes

18     against humanity in Bela Crkva, Mala Krusa, Suva Reka town, Izbica,

19     Djakovica town, Korenica, and Meja, and Gornja Sudimlja; count 3 in part,

20     count 4 in part, count 5 in part.

21             Grants subground 7(3) of Sainovic's appeal concerning sentencing.

22             Dismisses Judge Liu and Judge Tuzmukhamedov dissenting,

23     Sainovic's appeal in all other respects.

24             Reverses proprio motu Sainovic's convictions as a participant in

25     a JCE for deportation and inhumane acts, forcible transfer, as crimes


Page 741

 1     against humanity committed in Tuslija, count 1 in part, and count 2 in

 2     part.

 3             Reverses Sainovic's conviction as a participant in a JCE for

 4     deportation and inhumane acts forcible transfer as crimes against

 5     humanity committed in Turicevac - count 1 in part, count 2 in part - as a

 6     result of granting subground 1(f) of Lazarevic's appeal in part.

 7             Affirms, Judge Liu and Judge Tuzmukhamedov dissenting, the

 8     remainder of Sainovic's convictions under counts 1 and 5.

 9             Allows in part, Judge Liu and Judge Tuzmukhamedov dissenting, the

10     Prosecution's third and fourth grounds of appeal and finds Judge Liu and

11     Judge Tuzmukhamedov dissenting, that the Trial Chamber incorrectly found

12     Sainovic not guilty for committing through his participation in a JCE

13     persecution through sexual assaults, as a crimes against humanity in

14     Beleg, Cirez, and Pristina.  Count 5 in part.  But declines

15     Judge Ramaroson dissenting to enter new convictions against him in this

16     regard.

17             Grants in part the Prosecution's sixth ground of appeal

18     concerning sentencing.

19             Dismisses the Prosecution's appeal concerning Sainovic's in all

20     other respects.

21             Sets aside the sentence of 22 years and imposes a sentence of 18

22     years of imprisonment subject to credit being given under Rule 101(C) of

23     the Rules for the period he has already spent in detention.

24             Mr. Sainovic, you may be seated.

25             Mr. Pavkovic, will you please stand.


Page 742

 1             With respect to Nebojsa Pavkovic.

 2             Dismisses Pavkovic's appeal in its entirety.

 3             Reverses proprio motu Pavkovic's convictions as a participant in

 4     a JCE for deportation and inhumane acts, forcible transfer as crimes

 5     against humanity committed in Tuslija, count 1 in part and count 2 in

 6     part.

 7             Reverses Pavkovic's convictions as a participant in a JCE for

 8     deportation and inhumane acts, forcible transfer as crimes against

 9     humanity committed in Turicevac, count 1 in part and count 2 in part, as

10     a result of granting subground 1(f) of Lazarevic's appeal, in part.

11             Reverses Pavkovic's convictions as a participant in a JCE for

12     murder as a violation of laws and the customs of war, murder and the

13     persecution through murder as a crime against humanity with respect to

14     274 of the 287 Kosovo Albanian's killed in and around Korenica and Meja

15     during Reka valley operation, count 3 in part, count 4 in part, and

16     count 5 in part, as a result of granting ground Q of Lukic's appeal in

17     part.

18             Affirms the remainder of Pavkovic's conviction under counts 1 to

19     5.

20             Allows, in part, Prosecution's fourth ground of appeal and finds

21     that the Trial Chamber incorrectly found Pavkovic not guilty of

22     committing through his participation in a JCE, persecution through sexual

23     assaults as crimes against humanity in Pristina, Count 5 in part, but

24     declines, Judge Ramaroson dissenting, to enter new convictions against

25     him in this regard.


Page 743

 1             Grants in part the Prosecution's sixth ground of appeal

 2     concerning sentencing.

 3             Dismisses the Prosecution's appeal concerning Pavkovic in all

 4     other respects.

 5             Affirms the sentence of 22 years of imprisonment, subject to

 6     credit being given under Rule 101(C) of the Rules for the period he has

 7     already spent in intention.

 8             Mr. Pavkovic, you may be seated.

 9             Mr. Lazarevic, will you please stand.

10             With respect to Vladimir Lazarevic, grants, in part, subgrounds

11     1(f) and 1(i) of Lazarevic's appeal and reverses his conviction for

12     aiding and abetting deportation and inhumane acts, forcible transfer, as

13     crimes against humanity committed in Turicevac and Kacanik town; count 1

14     in part and count 2 in part.

15             Grants in part subgrounds 3(e), 3(h), and 3(i) of Lazarevic's

16     appeal, and set aside the Trial Chamber's findings that:  One, his

17     failure to take adequate investigative and punitive measures

18     substantially contributed to the commission of the crimes of forcible

19     transfer and deportation by VJ forces; and, two, his inspection of the VJ

20     units provided encouragements and moral support to the VJ forces engaging

21     in the forcible displacement.

22             Dismisses Lazarevic's appeal in all other respects.

23             Reverses proprio motu Lazarevic's conviction for aiding and

24     abetting deportation and inhumane acts, forcible transfer, as crimes

25     against humanity committed in Tusilje; count 1 in part and count 2 in


Page 744

 1     part.

 2             Affirms the remainder of Lazarevic's conviction under count 1 and

 3     count 2.

 4             Allows in part the Prosecution's fifth ground of appeal and finds

 5     that the Trial Chamber incorrectly found Lazarevic not guilty for aiding

 6     and abetting deportation and inhumane acts, forcible transfer, as crimes

 7     against humanity committed in Zabare, Dusanovo, Sojevo, Staro Selo, and

 8     Mirosavlje, count 1 in part and count 2 in part, but declines,

 9     Judge Ramaroson dissenting, to enter new convictions against him in this

10     regard.

11             Grants in part Prosecution's sixth ground of appeal concerning

12     sentencing.

13             Dismisses the Prosecution's appeal concerning Lazarevic in all

14     other respects.

15             Sets aside the sentence of 15 years of imprisonment and imposes a

16     sentence of 14 years imprisonment subject to credit being given under

17     Rule 101(C) of the rule for a period he has already spent in detention.

18             Mr. Lazarevic, you may be seated.

19             Mr. Lukic, will you please stand.

20             With respect to Sreten Lukic.

21             Grants in part subground O(1)(e) and ground Q of Lukic's appeal

22     and reverses his conviction for committing through his participation in a

23     JCE murder as violation of the laws and the customs of war and murder and

24     persecution through murder through murder as a crimes against humanity in

25     Bela Crkva, Mala Krusa, Suva Reka town, Izbica, and Djakovica town, as


Page 745

 1     well as respect to the 274 of the 287 Kosovo Albanians killed in and

 2     around Korenica and Meja during Reka valley operation; count 3 in part,

 3     count 4 in part, and count 5 in part.

 4             Grants subground KK(3) KK(1) in part of Lukic's appeal concerning

 5     sentencing.

 6             Dismisses Lukic's appeal in all other respects.

 7             Reverses proprio motu Lukic's conviction as a participant in a

 8     JCE for deportation and inhumane acts, forcible transfer, as crimes

 9     against humanity committed in Tusilje; count 1 in part, count 2 in part.

10             Reverses Lukic's conviction as a participant in a JCE for

11     deportation and inhumane acts, forcible transfer, as crimes against

12     humanity committed in Turicevac - count 1 in part, count 2 in part - as a

13     result of granting subground 1(f) of Lazarevic's appeal in part.

14             Affirms the remainder of Lukic's conviction under counts 1 to 5.

15             Allows in part the Prosecution's third and fourth grounds of

16     appeal and finds that the Trial Chamber incorrectly found Lukic not

17     guilty for committing through his participation in a JCE persecution

18     through sexual assaults as a crimes against humanity in Beleg, Cirez, and

19     Pristina, count 5 in part, but it declines, Judge Ramaroson dissenting,

20     to enter new convictions against him in this regard.

21             Grants in part the Prosecution's sixth ground of appeal

22     concerning sentencing.

23             Dismisses Prosecution's appeal concerning Lukic in all other

24     respects.

25             Sets aside the sentence of 22 years of imprisonment and imposes a


Page 746

 1     sentence of 20 years of imprisonment subject to credit being given under

 2     Rule 101(C) of the Rules for the period he has already spent in

 3     detention.

 4             Mr. Lukic, you may be seated.

 5             Rules that this judgement shall be enforced immediately pursuant

 6     to Rule 118 of the Rules.

 7             Orders that in accordance with Rule 103(C) and 107 of the Rules,

 8     the Appellants are to remain in the custody of the Tribunal pending the

 9     finalisation of arrangements for their transfer to the state where their

10     sentences will be served.

11             Judge Liu Daqun appends a partially dissenting opinion and a

12     declaration.

13             Judge Arlette Ramaroson appends a dissenting opinion.

14             Judge Bakhtiyar Tuzmukhamedov appends a dissenting opinion.

15             Madam Registrar, would you please distribute copies of the

16     judgement to the parties.

17             Thank you very much.

18             Before concluding, I would take this brief opportunity to thank

19     all those who have contributed to the efficient conduct of this case and

20     to thank them for their constructive efforts.

21             This hearing of the Appeals Chamber of International Criminal

22     Tribunal for the former Yugoslavia stands adjourned.

23                           --- Whereupon the hearing adjourned at 10.57 a.m.

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