Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12300

1 Tuesday, 1 May 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.01 a.m.

5 JUDGE BONOMY: Mr. Stamp. Mr. Hannis? Mr. Stamp.

6 MR. STAMP: The next witness scheduled is Zoran Lilic. I have to

7 advise the court that he is not present in The Hague to testify today. On

8 Saturday last I received information that he had been admitted for

9 emergency treatment in the hospital and was undergoing tests. If --

10 subsequently this morning I received medical documentation in that regard.

11 If there is to be any further discussion of the details of this aspect of

12 it, I would ask that we go into private session. The -- this is the

13 reason why we are unable to proceed with him today.

14 JUDGE BONOMY: [Microphone not activated]

15 MR. STAMP: The Prosecution moves that we be given just sufficient

16 time to see if he would be available in a reasonable period of time,

17 perhaps the end of this week. We are in the process of investigating this

18 matter as fully as we can, to find out the extent of his indisposition

19 and whether or not he would be available to testify this week. If he's

20 not available, we would propose to close and take appropriate steps in due

21 course by motion to request -- that is, the transcript of his evidence be

22 received pursuant to Rule 92 quater or that the Prosecution's case be

23 re-opened at an appropriate point so that his evidence could be taken

24 either viva voce or by the Belgrade field office or hospital by videolink.

25 JUDGE BONOMY: I don't understand your reference to take

Page 12301

1 appropriate steps in due course by motion to request that the transcript

2 of his evidence be received pursuant to 92 quater. This is following the

3 closure of the Prosecution case. How would that be done?

4 MR. STAMP: If -- within whatever period the Court might see fit

5 to give the Prosecution to fully investigate this matter to see whether he

6 is available, if he is not available to attend in a reasonable period of

7 time we would move that his evidence be received pursuant to 92 quater and

8 close the Prosecution's case.

9 JUDGE BONOMY: That's before --

10 MR. STAMP: Before closing the case. I just indicated that option

11 which would be after closing Prosecution's case, if that is not -- if the

12 first option is not amenable to the Court, we would move in due course

13 after the closure of the Prosecution's case to have his -- to have the

14 case re-opened and his evidence received by videolink, if necessary.

15 [Trial Chamber confers]

16 JUDGE BONOMY: Well, we'll go into private session so we can hear

17 what you have to say about the medical position.

18 [Private session]

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 12302











11 Page 12302 redacted. Private session















Page 12303

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 [Open session]

11 THE REGISTRAR: We're in open session, Your Honours.

12 JUDGE BONOMY: Mr. Stamp, do I understand correctly that you have

13 not yet provided copies of this medical material to the Defence?

14 MR. STAMP: No, we have not.

15 JUDGE BONOMY: All right.

16 Well, you should do that now and also provide us with copies of

17 what's available, and we'll adjourn while that's done. And we'll resume

18 in 15 minutes, that's at 20 minutes to 10.00, and we'll hear what the

19 Defence have to say. If they wish more time to consider the position then

20 they should send a message informally through the court clerk to us.

21 MR. STAMP: I'm sure it goes without saying - even though I'm

22 saying it - that since we dealt with the medical condition in private

23 session, documents should remain protected in that sense, and should not

24 be disclosed outside of the parties in this the court.

25 JUDGE BONOMY: Yeah, these are confidential documents and everyone

Page 12304

1 here, I'm sure, has a clear understanding of that.

2 --- Break taken at 9.24 a.m.

3 --- On resuming at 9.49 a.m.

4 JUDGE BONOMY: Mr. Stamp, just one final matter before I hear from

5 the Defence. The Trial Chamber would like to know what's actually

6 happening this very minute to check on the position with the medical staff

7 dealing with the witness.

8 MR. STAMP: I have not had an opportunity to put in train any

9 actual investigations. I've spoken -- and without going too much into our

10 internal situation, I've spoken with a senior person involved in

11 investigations will meet with them as soon as I can to put in place our

12 inquiries in respect to the hospitalisation and the probability or

13 possibility that he would be available within whatever time, or whether or

14 not there is a reasonable likelihood that a videolink could be done within

15 a reasonable time.

16 The short answer is: There is nothing going on in place now,

17 apart from consultations between Belgrade and The Hague.

18 JUDGE BONOMY: So no one has tried to speak to Dr. Todorovic?

19 MR. STAMP: No, not as yet.

20 [Trial Chamber confers]

21 MR. STAMP: We received this document just a couple minutes before

22 court sat -- the court started today.

23 JUDGE BONOMY: Were you not earlier aware of the position?

24 MR. STAMP: I was told of the hospitalisation, but the details

25 contained in this document I was not aware of until shortly before we

Page 12305

1 proceeded today.

2 JUDGE BONOMY: Thank you.

3 Mr. O'Sullivan.

4 MR. O'SULLIVAN: Your Honour, can we first ask that the documents

5 distributed before the break be given an IC number so that it become a

6 part of the record.


8 MR. STAMP: Under seal, if we may.


10 MR. ACKERMAN: Your Honour, on that score I take it that the news

11 reports from Pravda would not be documents under seal and could be

12 publicly filed, so maybe we need two IC numbers.

13 JUDGE BONOMY: I take it that's an -- very well. We'll separate

14 the news report and give it a separate IC number and the rest will have a

15 single number.

16 THE REGISTRAR: The first one, IC 129.

17 JUDGE BONOMY: That's the newspaper report.

18 THE REGISTRAR: And the other one will be IC 130.

19 JUDGE BONOMY: Thank you.

20 Mr. O'Sullivan.

21 MR. O'SULLIVAN: As for the Prosecution request for an

22 adjournment, we oppose. We renew our application to declare this case

23 closed. We're now into our fourth delay since the 23rd of March and the

24 16th of April, last week, and a further delay is unreasonable, we say.

25 And we propose to proceed with 98 bis submissions immediately.

Page 12306

1 JUDGE BONOMY: Thank you.

2 [Trial Chamber confers]

3 JUDGE BONOMY: Mr. Stamp, we've noted carefully what you have to

4 say and the various options that you have been considering and think might

5 later have to be considered, but we've also had to have regard to the

6 whole history of the case to date, the whole circumstances in which you

7 now come before us with this motion for an adjournment, and we have

8 decided that in the circumstances it is not reasonable for us to grant

9 your motion and we, therefore, refuse the motion for an adjournment.

10 Mr. Hannis.

11 MR. HANNIS: Well, Your Honour, in light of that, we have no

12 additional witnesses to call and we would rest at this time, Your Honour.

13 JUDGE BONOMY: Thank you, Mr. Hannis.

14 [Trial Chamber and legal officer confer]

15 JUDGE BONOMY: There appears to be one outstanding evidential

16 matter which should be cleared up now. Exhibit 3D512, that's an exhibit

17 for Mr. Ojdanic, I understand may be admitted by agreement. I see

18 Mr. Hannis nodding his head, and therefore we will admit 3D512.

19 Mr. Visnjic.

20 Now, Mr. O'Sullivan, are you in a position to proceed?

21 MR. O'SULLIVAN: Yes, Your Honour.

22 JUDGE BONOMY: Well, since the rest of today will be taken us with

23 submissions rather than evidence, we will sit for the first session until

24 quarter to 11.00. Then we'll resume from 11.15 to 12.45, and then we will

25 resume in the afternoon at 1.45 for an hour and three-quarters and finish

Page 12307

1 at 3.30. We cannot sit on that basis tomorrow, I think, because of

2 demands upon the courtroom, but we can sit that schedule on Thursday and

3 Friday also. We'll review the position if parties are still

4 making submissions, then we'll review the situation on Friday.

5 Mr. O'Sullivan.

6 [Trial Chamber confers]

7 MR. O'SULLIVAN: May it please the Court. Your Honour,

8 Mr. Zecevic and I are here this morning on behalf of Mr. Milutinovic

9 pursuant to Rule 98 bis requesting that you acquit Mr. Milutinovic on all

10 counts in the indictment. Rule 98 bis provides, and I quote: "At the

11 close of the Prosecutor's case, the Trial Chamber shall by oral decision

12 and after hearing the oral submissions of the parties enter a judgement of

13 acquittal on any count if there is no evidence capable of supporting a

14 conviction."

15 What is the degree of proof necessary under Rule 98 bis? We refer

16 the Chamber to two precedents, two oral decisions under Rule 98 bis, the

17 first is from the Mrksic case IT-98-13/1-T, transcript 11311 to 11313.

18 The second decision is from the Martic case, that's case IT-95-11-T, the

19 transcript reference is 5960 to 5961. I'll quote from the Mrksic case at

20 11311.

21 "The standard to be applied in respect of each count is whether on

22 the evidence as it stands and taken at its highest for the Prosecution, it

23 would be properly open to a Trial Chamber to be persuaded beyond

24 reasonable doubt to convict the accused.

25 "It follows that a decision that there is evidence capable of

Page 12308

1 sustaining a conviction on a particular count is in no sense an indication

2 of the view of this Chamber as to the ultimate guilt or innocence of the

3 accused on that count. This is so because at this stage of the case the

4 Chamber is not to evaluate the respective credit of witnesses or the

5 strengths and weaknesses of contradictory or different evidence. The

6 Chamber is required at this stage to assume that the Prosecution's

7 evidence is, and I quote, 'entitled to credence unless incapable of

8 belief.'

9 "In essence, a Rule 98 bis motion will succeed if there is no

10 evidence supporting a particular count, or if the only relevant evidence

11 is so incapable of belief that it could not properly sustain a conviction,

12 even when the evidence is taken at its highest for the Prosecution."

13 The Mrksic Chamber goes on to rely on the Jelisic Appeals Chamber

14 decision, the Strugar Trial Chamber decision, and the Milosevic Trial

15 Chamber decision. The Martic Trial Chamber adopted the language from

16 Mrksic and at 11312 of the Mrksic transcript the Chamber said that:

17 "This may be established even though the evidence is not

18 necessarily sufficient in respect of some other allegations or particulars

19 set out in the indictment in respect of that count or in respect of one or

20 some forms of criminal responsibility relied on by the Prosecution. The

21 Prosecution need only ultimately succeed in proving one form or one of the

22 forms of criminal responsibility it relies on for there to be a conviction

23 on a count.

24 We say, therefore, that a 98 bis motion will succeed if there's no

25 evidence supporting a particular count or if the only relevant evidence is

Page 12309

1 so incapable of belief that it could not properly sustain a conviction

2 even when the evidence is taken at its highest for the Prosecution.

3 The indictment against Mr. Milutinovic contains five counts:

4 Count 1 is deportation; Count 2 is forcible transfer; Counts 3 and 4 are

5 murder; Count 5 is persecutions. Each of the five counts incorporates

6 paragraphs from the indictment in relation to Mr. Milutinovic. Paragraphs

7 1 and 8 detail the -- Mr. Milutinovic's background, his position;

8 paragraphs 16 to 23 his individual responsibility; 24 to 34 are the

9 overview of the JCE; and 35 to 40 are specific allegations against

10 Mr. Milutinovic. Mr. Milutinovic is charged under Article 7(1) for

11 planning, instigating, ordering, committing as a co-perpetrator in a JCE,

12 or otherwise aiding and abetting. He's also charged under 7(3) as having

13 superior authority for the alleged crimes set out in Counts 1 to 5.

14 In our submission, there is no evidence of planning, instigating,

15 ordering, committing, or aiding and abetting in relation to

16 Mr. Milutinovic. There is no evidence of any superior authority in

17 relation to Mr. Milutinovic. As a matter of fact and law, we say he's not

18 guilty and you should acquit him at this stage.

19 I propose to review the evidence in this case, but before doing

20 that I remind the Court that in our pre-trial brief we stipulated to

21 certain facts. That was our 65 ter (F) filing on the 6th of June 2006 --

22 JUDGE BONOMY: Just one matter before you proceed. Is there any

23 extent to which your submission is a joint submission for all the accused?

24 MR. O'SULLIVAN: No it's not.

25 JUDGE BONOMY: So the law may be presented differently by the

Page 12310

1 others?

2 MR. O'SULLIVAN: I don't believe so, not the law, no.


4 MR. O'SULLIVAN: The facts to which we have stipulated, pre-trial,

5 is that Mr. Milutinovic served at the SFRY Ambassador to Greece from the

6 15th of June, 1989, until the 27th of April, 1992, and thereafter as the

7 FRY Ambassador to Greece until the 15th of August, 1995. He was appointed

8 Minister of Foreign Affairs of the FRY on the 15th of June, 1995.

9 Mr. Milutinovic was elected president of the Republic of Serbia and served

10 in that function from 21 December 1997 until 29 December 2002. And as the

11 president of Serbia, Mr. Milutinovic was a member of the Supreme Defence

12 Council of the FRY. So we have agreed that Mr. Milutinovic was the

13 president of the Republic of Serbia and that he was a member of the

14 Supreme Defence Council. Those are the two facts that are relevant to

15 this case in particular.

16 I'll be making detailed submissions about the Supreme Defence

17 Council. At this point I'll say that evidence in this case is that

18 there's no evidence that the Supreme Defence Council met or functioned

19 after the 23rd of March, 1999. I'll review the powers and authorities of

20 the Supreme Defence Council by reference to the constitutions of the FRY

21 and Serbia, the relevant legislation, minutes of meetings of the Supreme

22 Defence Council, and the testimony of OTP witnesses.

23 In addition, the Prosecution alleges that Mr. Milutinovic was a

24 member of a body called the Supreme Command; there's no evidence of that.

25 These allegations are set out in paragraphs 36 and 37 of the indictment.

Page 12311

1 There's no evidence that Mr. Milutinovic was a member of such a body and

2 there's no evidence that such a body existed.

3 I turn first to submissions in response to the allegations

4 contained in the indictment concerning Mr. Milutinovic as the president of

5 Serbia. Paragraph 8(i) of the indictment says that:

6 "Mr. Milutinovic was the head of state. He represented Serbia

7 and conducted its relations with foreign states and international

8 organisations."

9 Let's look at the evidence in this case in relation to this

10 paragraph. I prefer the Chamber first to Exhibit P855, that's the

11 constitution of the Republic of Serbia that came into effect on the 28th

12 of September, 1990. Article 1 says that the Republic of Serbia is a

13 state. Article 9(2) says that: "The Republic of Serbia is represented

14 and its state unity symbolised by the President of the republic."

15 Now, it's correct that the Republic of Serbia is a state. For our

16 purposes, it's always been a state, a constituent element of a federal

17 state. It was first a constituent republic in the SFRY, and on the 27th

18 of April, 1992, Serbia was a constituent element of the new state of the

19 FRY. In other words, Serbia has never had an international personality;

20 it's never been a sovereign state. We say the president of Serbia did not

21 conduct its relations with foreign states and international organisations.

22 For more clarity, we ask the Chamber to look at P1623, which is the

23 constitution of the FRY -- SFRY, 1974. Article 281, subparagraph 7, says

24 that: "The federal -- the Socialist Federal Republic of Yugoslavia

25 ensured foreign policy on behalf of that federal state." Not the Republic

Page 12312

1 of Serbia when Serbia was a constituent republic of that federal state.

2 We refer you to P856 which is the constitution of the FRY, which

3 is dated 27 April 1992. There again a review of that constitution, that

4 federal constitution, shows you that the FRY organs are competent in the

5 area of international relations. I refer you to Article 77, subparagraph

6 6. Article 96, subparagraph 1 says: "The President of FRY represents the

7 FRY at home and abroad."

8 Article 99, subparagraph 1 of the constitution says: "The federal

9 government establishes and conducts foreign and domestic policies."

10 One might ask then why and where did the Prosecution, and on what

11 did it base paragraph 8(i) of its indictment. Well, that requires a

12 review and an understanding of the relationship between the constitution

13 of the FRY and the constitution of the Republic of Serbia. Because if one

14 turns to the constitution of Serbia, P855, at Article 83, subparagraph 4,

15 you see this, it says that: "The President of the Republic shall conduct

16 affairs in the sphere of relations between the Republic of Serbia and

17 other states and international organisations in accordance with the law."

18 Well, this particular article of the Serbian constitution has no

19 implementing legislation; it was never given any effect in law. So there

20 seems to be an apparent conflict between the Serbian constitution and the

21 FRY constitution, but that's regulated by law. That's regulated by

22 Article 135 of the Serbian constitution, P855. There is a paramountcy

23 clause that says in the case of conflict the federal jurisdiction has

24 primacy over the constituent republic.

25 JUDGE BONOMY: Are you arguing that a constitution such as the

Page 12313

1 constitution of Serbia requires some other form of legislation before a

2 particular provision in it takes effect?

3 [Defence counsel confer]

4 MR. O'SULLIVAN: Well, in relation to Article 83 it says it would

5 be regulated in accordance with law, so that was the specific reference

6 there to that particular section of the Serbian constitution.

7 So at the time that there was -- Serbia was part of the SFRY, it

8 was regulated by a clause which recognised the paramountcy of the federal

9 constitution. The same is true if you look at the federal constitution of

10 the FRY, P856. I refer you -- I ask you to look at Article 7; 16; 78(2),

11 (3), and (4); 92, subparagraph 2; 115; and 130. All those provisions of

12 the federal constitution of the FRY show that the -- in the case of

13 conflict between the two constitutions, the federal constitution is

14 paramount.

15 We say that on a proper construction and interpretation, one must

16 understand that the Serbian constitution of 1990 has to be understood in

17 the political events that were unfolding in the former Yugoslavia at the

18 time. In 1990, the dissolution of the former Yugoslavia was taking place

19 and there are provisions in the Serbian constitution that provide for two

20 possibilities. One is the Republic of Serbia remaining in a federal state

21 or the Republic of Serbia becoming an independent state, and therefore

22 there are provisions that on the face of it might lead one to conclude

23 that there are powers given to organs and entities in Serbia which are

24 consistent with an independent sovereign state. But I repeat that there

25 are clauses on paramountcy that explain that if Serbia were to remain in a

Page 12314

1 federal unit, which it always did, the SFRY and the FRY, then the federal

2 bodies and organs and personalities are paramount.

3 So in relation to paragraph 8, subparagraph i, of the indictment,

4 there's no evidence that Mr. Milutinovic was a head of state. He never

5 conducted Serbian relations with foreign states, and he never exercised

6 such powers either.

7 I turn then to paragraph 8, subparagraph iii, of the indictment,

8 which says that:

9 "Mr. Milutinovic, in conjunction with the Republic of Serbia

10 Assembly, had the authority to request reports both from the Government of

11 Serbia concerning matters under its jurisdiction and from the MUP,

12 concerning its activities and the security situation in Serbia."

13 Here the constitution of Serbia, P855, is quite specific. I

14 address your attention to Article 83, subparagraph 12, which confers

15 powers on the president and here there are powers that are confined by the

16 constitution.

17 Article 83(12) says that: "The President of the Republic shall

18 conduct affairs in accordance with the constitution." His powers are laid

19 down by the constitution, not by statute. Statute will define the details

20 of a power vested in a constitution, but statute may not create a power

21 for the President of the Republic of Serbia.

22 There is one power given to the president of the Republic of

23 Serbia under the constitution in relation to the government and that's in

24 Article 85. Article 85 of the Serbian constitution says: "The President

25 of the Republic may request from the government to state its viewpoints

Page 12315

1 concerning some questions following within its jurisdiction."

2 Now, I emphasise that the wording says: "The President may

3 request a viewpoint from the government," he may not order. Nowhere in

4 the legislation of the constitution does the president of the republic

5 have the power or influence or the ability to influence the government to

6 amend or abandon a viewpoint. The president has no ability to ask for any

7 further information once given by the government. Nowhere in the

8 legislative framework of the country does the president of Serbia have the

9 ability or the institution to verify the completeness or veracity of

10 information. This power is regulated by law, and that is P1862, the Law

11 on Government.

12 Article 19 provides the means for the president to exercise the

13 power vested by Article 85 of the Serbian constitution. It says:

14 "The government acting upon a request from the President of the

15 Republic and within a time-limit set by the President of the Republic,

16 which may not be shorter than 48 hours, adopts a position concerning an

17 issue falling under its sphere of competence and informs the President of

18 the Republic accordingly."

19 Now, the Law on Government sets out many things. It says that the

20 government, and not the president, has the power and responsibility over

21 matters of public administration. The president has no constitutional or

22 statutory authority over public administration or public authorities and

23 they owe no duty to the president of the republic. The government under

24 this law, the Law on Government, appoints and dismisses ministers and

25 other administrative individuals and bodies. It's responsible for

Page 12316

1 financing, it controls and supervises ministries, and it establishes

2 principles for the internal organisation of ministries and other

3 administrative bodies.

4 And what of the relationship between the president of Serbia and

5 the Ministry of the Interior? Again, it's a statutory relationship, not

6 constitutional. P1737 is the Law on Internal Affairs; it sets out the

7 framework. Article 1, subparagraph 2, says: "The minister -- the

8 Ministry of the Interior shall conduct the internal affairs of the state

9 administration."

10 Article 1(3) says: "Specific internal affairs may be entrusted to

11 other organs and organisations." And Article 7 provides that: "The

12 minister shall determine the manner in which the Ministry of the Interior

13 performs its duties and issues instructions for their performance."

14 Article 9 of the Law on Internal Affairs makes reference to

15 the "President of the Republic." Article 9 says, and I quote:

16 "At the request of the National Assembly and the President of the

17 Republic, the minister must submit a report on the work of the Ministry of

18 the Interior and on the security situation in the Republic."

19 Let's look more closely at Article 9. On its face it says: "There

20 must be a joint and contemporaneous report of the National Assembly and

21 the President of the Republic to submit a report to the National

22 Assembly."

23 Now, we say that the proper interpretation and construction of

24 this provision is the following, and I refer back to P855, the Serbian

25 constitution. Article 73(10), it says: "The National Assembly has the

Page 12317

1 power to appoint and dismiss the president, the vice-president of the

2 National Assembly, the prime minister, the deputy prime minister, prime

3 ministers, and the ministers in the government." It's a power of the

4 National Assembly.

5 Article 94, sub 5, says: "The organisation and competencies of

6 the ministries their departments, and special organisations shall be

7 established by law."

8 We've already seen that under Article 9(2) of the Serb

9 constitution, the president has no power or authority over the National

10 Assembly or the government and he symbolises, simply, state unity of the

11 Republic of Serbia. There's no basis on the evidence to support this

12 paragraph 8, subparagraph iii of the indictment.

13 I move to paragraph 8, subparagraph iv, that

14 says: "Mr. Milutinovic had the authority to dissolve the Republic of

15 Serbia Assembly along with the government, 'subject to the proposal of the

16 government on justified grounds,' although this power only applied in

17 peacetime."

18 I refer you, again, to the Serbian constitution, P855, Article 89.

19 And the power to dissolve the National Assembly. 89(4), 89, subparagraph

20 4, says that: "This power exists in peacetime, not during a state of war,

21 an imminent threat of war, or a state of emergency."

22 Article 89, paragraph 1 says: "The power is divided between the

23 government and the President of Serbia. The government must submit a

24 proposal containing justified grounds and the President may decide to

25 dissolve the National Assembly," again in peacetime.

Page 12318

1 And Article 89, subparagraph 2 says: "If and when the National

2 Assembly is dissolved, the government mandate ends."

3 The conclusion, therefore, is that the National Assembly may only

4 be dissolved in peacetime and requires a written proposal from the

5 government to the president.

6 I refer you further to Article 9 of the Serbian constitution.

7 I've already mentioned subparagraph 2, but it's important to recognise the

8 relationship between the branches of government within the Republic of

9 Serbia. Article 9(1) says that: "Legislative power is vested in the

10 National Assembly." Article 9(3) says: "Executive power is vested in the

11 government." That same paragraph says: "Judicial power is vested in the

12 courts." And as I mentioned several times already Article 9(2) says

13 that: "State unity is symbolised through the president." That's the

14 proper relationship, we say.

15 Well, perhaps I have to repeat that. The transcript didn't pick

16 up, and as I say, Article 9(3) states that: "The executive power is

17 vested in the government and judicial power is vested in the courts of

18 law. And the president of Serbia symbolises state unity."

19 The reason I'm taking the Court through these sections of the

20 indictment as a preliminary matter is because we say that throughout this

21 indictment shows a misunderstanding and is misguided in relation to the

22 laws and the constitutions and the legal framework in the country, and in

23 particular, the powers and authorities that Mr. Milutinovic had as the

24 president of Serbia. And I'm going through this in detail as well because

25 the Chamber has heard no evidence from a witness in relation to any of

Page 12319

1 this -- these constitutions or legislation. Much of the laws I'll be

2 referring to were either tendered by the Prosecution or are the result of

3 agreement and stipulation between the parties.

4 I turn to two other sections of the indictment. Paragraph 8,

5 subparagraph v, it says that: "Mr. Milutinovic, during a declared state

6 of war or state of imminent threat of war, could enact measures normally

7 under the competence of the Republic of Serbia, including the passage of

8 laws; these measures could include the reorganisation of the Government

9 and its ministries, as well as the restriction of certain rights and

10 freedoms."

11 And then at paragraph 35(d) of the indictment, the Prosecution

12 alleges that Mr. Milutinovic "used his decree authority to impose measures

13 to further the crimes charged in Counts 1, 2 and 5." We say this is

14 another example of an incorrect and uninformed understanding of the law

15 and the powers of the president of Serbia.

16 Let's look at the situation during a declared state of war. The

17 evidence in the case is that pursuant to P856 of the FRY constitution,

18 Article 78(3): "the Federal Assembly declares a state of emergency, a

19 state of imminent threat of war, or a state of war."

20 According to Articles 99, subparagraphs 10 and 11 of that FRY

21 constitution: "the Federal Government makes such a declaration,

22 emergency, imminent threat of war, or war, if the Federal Assembly is not

23 able to convene."

24 Now, bearing those two of those provisions of the FRY constitution

25 we have Exhibit P992 which is the decision to proclaim a state of imminent

Page 12320

1 threat of war dated 23 March, 1999. It was proclaimed by the federal

2 government. And the next day, on the 24th of March, P991, we have a

3 decision to proclaim a state of war, again proclaimed by the federal

4 government.

5 Now, within that period of a state of war, that condition, we must

6 turn to the Serbian constitution to see what the powers are in relation to

7 the president of the Republic of Serbia, that's P856, Serbian

8 constitution, Article 83, subparagraph 7. It says:

9 "The President of the Republic shall, at his own initiative or at

10 the proposal of the government during a state of war or immediate danger

11 of war, pass the enactments regulating -- relating to questions falling

12 within the competence of the National Assembly, provided he's been bound

13 to submit them to the National Assembly for approval as soon as it is in a

14 position to meet."

15 Well, these provisions were in effect after the 24th of March,

16 1999, when the federal government declared a state of war. And during the

17 state of war, Mr. Milutinovic, as the president of Serbia, enacted 16

18 decrees, each decree was enacted upon a written proposal from the

19 government, not at his own initiative. Each of these 16 decrees was

20 subsequently submitted to the National Assembly for approval. On the 16th

21 of June, 1999, all 16 of these decrees were approved for the period of the

22 state of war. And in that -- on that date, they were all declared null

23 and void because of the cessation of the state of war. Now all 16 decrees

24 are in evidence and the post-war decree and law ratifying those 16 decrees

25 is in evidence.

Page 12321

1 I fear I'm obliged to give you references to each one of the 16

2 decrees because there's no written submissions to support my submissions,

3 so I will do so. P993 contains four decrees in the single document. The

4 other decrees are 1D158, 1D161, 1D163, 1D166, 1D169, 1D172, 1D175, 1D178,

5 1D181, 1D478, 1D187, and 1D189. Those are the 16 decrees. I mention that

6 they were all subsequently -- and each one, if you look at them, you'll

7 see that they're expressly brought on following a written proposal from

8 the government.

9 Now, I told you that on the 16th of June there was a further

10 ratification of this, of these 16 decrees, and that's 1D192, that's the

11 law confirming the ordinance issued by the president of the republic

12 during the state of war. The Prosecution has - and I'll just finish this

13 section in a moment, then we can break, Your Honour - the Prosecution has

14 tendered only four of these decrees through P993 and they seem to place

15 special emphasis, if we can rely on the opening statement of the

16 Prosecution, on one of them which is an ordinance on identification cards

17 during the state of war.

18 Well, if you look at that decree carefully, it's a decree on ID

19 cards, saying that: "During a state of war if an ID card is lost, it must

20 be reported." It seems that there can be nothing more understandable or

21 natural for a state during a state of war to know who its citizens are and

22 there's nothing criminal can be inferred from what is virtually what every

23 other state in the world would do during a state of war.

24 And if we turn to 1D192, the law that confirms this and every

25 other ordinance on June 19th, 1992, under Article 2 of that law, this

Page 12322

1 particular ordinance on ID cards is declared null and void. Now, it was

2 declared null and void on the date that the state of war was abolished,

3 and we know the state of war was abolished on the 24th of June, 1999,

4 that's P1013, the decision of the Federal Assembly on the cessation of the

5 state of war. So there can be no malice or malevolent intent or purpose

6 for enacting this or any other decree. They were done according to the

7 law on a written request by the government, ratified in June, and all the

8 wartime decrees ceased to have any force once the state of war ended.

9 There's nothing in any of these 16 decrees that can be said to

10 have imposed measures to further crimes charged in Counts 1, 2, and 5 as

11 alleged in the indictment.

12 Your Honour, I think this might be an appropriate time to break.

13 JUDGE BONOMY: Thank you, Mr. O'Sullivan.

14 We shall adjourn now and resume at 11.15.

15 --- Recess taken at 10.46 a.m.

16 --- On resuming at 11.17 a.m.

17 JUDGE BONOMY: Mr. O'Sullivan.

18 MR. O'SULLIVAN: Thank you, Your Honour.

19 Before the break I was making submissions in relation to wartime

20 decrees and in particular I was referring to the decree on ID cards. I

21 would just add one further reference for your review, and that is Exhibit

22 1D226, it's the federal law on citizenship, Article 34, which provides

23 that: "In extraordinary circumstances, such as a state of war, a citizen

24 of the FRY cannot lose his citizenship."

25 I turn to paragraph 7 of the indictment, which says: "On the 12

Page 12323

1 May, 1999, Sreten Lukic was promoted by decree of the President of the

2 Republic of Serbia from Major General to Lieutenant General." On 28 May

3 2001, Mr. Lukic was promoted to Colonel-General by presidential decree of

4 Mr. Milutinovic.

5 There is no evidence in this case to support that allegation.

6 Paragraph 36(j), Milan Milutinovic's "failure to exercise his

7 powers as President of Serbia to prevent the perpetration and/or to punish

8 the perpetrators, of crimes charged in this indictment."

9 There is no evidence of any de jure or de facto powers as the

10 president of Serbia conferred upon Mr. Milutinovic to do any of those

11 things and no material ability to do them either.

12 I'd like to address the Chamber on two central tenets on the

13 allegations against Mr. Milutinovic and those regard the Supreme Defence

14 Council and the Supreme Command. The relevant parts or portions of the

15 indictment are paragraph 8, paragraph 2; paragraph 23; paragraph 35,

16 subparagraphs (a), (b), and (e); paragraph 36, subparagraphs (a) and (b);

17 and paragraph 38.

18 Prosecution alleges that Mr. Milutinovic was a member of the

19 Supreme Defence Council and the Supreme Command and that during a state of

20 war the Supreme Command had authority over the VJ and other organisations

21 engaged in the defence of the FRY. I propose to review the following

22 evidence: The constitutions; relevant legislation, which is the law on

23 the VJ and the Law on Defence; minutes of the Supreme Defence Council; the

24 rules of procedure of the Supreme Defence Council; and the testimony of

25 Prosecution witnesses.

Page 12324

1 First, the constitution of the FRY, P856. According to Articles

2 133 to 138 of the constitution, the VJ is a federal army. Articles 135

3 and 136 refer to the powers of the president of the FRY and it also refers

4 to the Supreme Defence Council. Under Article 135, it states that: "The

5 federal President, the President of the FRY, commands the VJ in wartime

6 and in peacetime in accordance with decisions of the Supreme Defence

7 Council."

8 I'll be returning later in my submissions to the meaning of the

9 phrase "in accordance with decisions of the Supreme Defence Council."

10 The same section, 135, stipulates that the Supreme Defence Council

11 is made up of the President of FRY, the President of Serbia, the President

12 of Montenegro, and that the federal president presides over the Supreme

13 Defence Council.

14 Article 136 of the FRY constitution reads as follows: "The

15 President of the Republic," that's the federal republic, "shall appoint,

16 promote, and dismiss from service officers of the Army of Yugoslavia

17 stipulated by federal law; shall appoint and dismiss the president, judges

18 and judge assessors of military tribunals and military prosecutors."

19 I mention that there are two relevant federal laws that we must

20 review: They are P984, the Law on the Army of Yugoslavia, 1994; and P985,

21 the Law on Defence, 1994.

22 The first thing I think the Chamber should be aware of is that the

23 president of the Republic of Serbia, Mr. Milutinovic, is an ex officio

24 member of the Supreme Defence Council. Indeed, both the president of the

25 Republic of Montenegro and the president of Serbia are ex officio,

Page 12325

1 pursuant to Article 135 of the federal constitution. The republic

2 constitutions of both Montenegro and Serbia are silent on the matter. So

3 by virtue of holding the office of president of Serbia, the federal

4 constitution provides that the president of Serbia is a member of the

5 Supreme Defence Council.

6 Now, earlier this morning I said that we had to reconcile, from

7 time to time, the Serbian constitution of 1990 with the FRY constitution

8 of 1992, and here's another example of that. The Republic of Serbia has

9 never had armed forces. Until 1992, the federal army was the JNA in the

10 federal state known as the SFRY. During the indictment period and since

11 1992, the federal army is the Army of Yugoslavia, the VJ.

12 Now, if one were to look at the Serbian constitution, P855,

13 Article 83(4), we find this provision: "The President of the Republic,"

14 the Republic of Serbia, "shall command the armed forces in peacetime and

15 in wartime and the popular resistance in war, order the general and

16 partial mobilisation, organise the preparations for defence in accordance

17 with law."

18 Now, we've seen and I've made submissions on the paramountcy

19 argument, but there's even more specific legislation in place. I refer

20 you to 1D456 which is a 1991 Law on Ministries which created the Ministry

21 of Defence of the Republic of Serbia, 1991. Well, that ministry was

22 abolished in 1993 by 1D142 which is the law correcting and amending the

23 Law on Ministries. And all ministries whose activities fell under federal

24 jurisdiction were abolished by this law, including the Ministry of Defence

25 of the Republic of Serbia.

Page 12326

1 So again, as the SFRY broke up and the nascent state of FRY found

2 its way between 1990 and 1992 and the early 1990s, we see that there are

3 perhaps not perfect reconciliation between the two constitutions, Serbia

4 and FRY, but we do have the paramountcy clauses and we do have, in this

5 instance, legislation which corrects what would appear on the face of it

6 to be an anomaly and Serbia never had armed forces.

7 Our submission is that the VJ is commanded by the president of the

8 FRY, he is the Supreme Commander. On the principle of singleness of

9 command and unity of the command, it's the Supreme Commander who commands

10 the forces, it's not commanded by a collegiate group. The Supreme Defence

11 Council, it performed a function of national defence, and we say this is

12 borne out by a review of the law, the minutes of the meetings, and the

13 evidence of witnesses.

14 I've referred you already to Articles 135 and 136 of the FRY

15 constitution which says, 135 says: "In wartime and peacetime, the Army of

16 Yugoslavia shall be under the command of the President of the Republic in

17 accordance with decisions by the Supreme Defence Council."

18 And 136 refers specifically to promotions, appointments, and

19 dismissals in the VJ.

20 In our submission, the Law on the VJ as implementing legislation,

21 that's P984, sets out the powers and authority of the federal president

22 and his command authority over the VJ. I wish to read out Article 4 of

23 that law to you. It says: "The President of the Republic shall command

24 the army in war and peace in accordance with decisions of the Supreme

25 Defence Council."

Page 12327

1 It picks up the language of Article 135 of the federal

2 constitution.

3 It goes on to say: "In his command of the army, the President of

4 the Republic," the federal president, "shall," and there are eight items

5 he shall do:

6 "The president of the republic shall establish the principles of

7 organisation, the development and equipping of the army;"

8 Subparagraph 2: "Determine the system of command in the army and

9 oversee its implementation."

10 Subparagraph 3: "Decide on the deployment of the army and approve

11 the plan for its use;"

12 Subparagraph 4: "Regulate and order readiness of the army in case

13 of imminent threat of war, state of war, or state of emergency;"

14 Subparagraph 5: "Provide guide-lines for arrangements relating to

15 mobilisation and issue orders for the mobilisation of the army;"

16 Subparagraph 6: "Issue basic regulations and other acts related

17 to the deployment of the army;"

18 Subparagraph 7: "Adopt rules regulating the internal order and

19 relations in the performance of military service;"

20 And subparagraph 8: "Perform other duties relating to the command

21 over the army in accordance with federal law."

22 And what of the power of the federal president to promote,

23 appoint, and dismiss? We invite the Chamber to consider these sections -

24 and I'll just enumerate them - of the Law on the VJ: Article 16, 28, 46,

25 107, 151, 204, 208, 291, 296, 316, and 318.

Page 12328

1 All of those articles I have just enumerated grant express power

2 to the federal president to promote, appoint, and dismiss. He is the

3 commander of the VJ.

4 What does the Law on Defence tell us? That's P985, I refer you to

5 Article 40 --

6 JUDGE CHOWHAN: Sorry for interruption. I have a question. Now,

7 he's the commander, that means Commander-in-Chief. Well, then he acts on

8 the advice of a defence council.

9 MR. O'SULLIVAN: Well --

10 JUDGE CHOWHAN: Where would you differentiate between as far as

11 when he acts as the Commander-in-Chief, and when he acts on the advice of

12 the defence council because he is subject to that? I mean, just a

13 differentiation, please.

14 MR. O'SULLIVAN: Well, with all due respect there is no

15 differentiation to make: He is the Commander-in-Chief.

16 JUDGE CHOWHAN: Then he acts on the advice of -- if defence

17 council -- defence council states that this is to be explored and not

18 this; go this way or do that way. As far as the battle-field, then he

19 doesn't go for the battle-field. Somebody else is going.

20 MR. O'SULLIVAN: I'm just about to address that in my submission

21 because I think when we see the Law on Defence in particular and the

22 minutes of the meetings, we see that it's an advisory panel that deals

23 with national defence and not the army. And the true nature, both in law

24 and in fact, will come out with a review of the legislation, and the

25 minutes, the agenda, what's discussed, and what's decided and the way it's

Page 12329

1 decided.

2 JUDGE CHOWHAN: Thank you.

3 MR. O'SULLIVAN: I just referred the Chamber to P985, which is the

4 piece of federal legislation, the Law on Defence. And I begin with

5 Article 40 which deals with the rights and duties of the federal

6 president. Article 40 again picks up on the language of Article 135 of

7 the federal constitution.

8 It reads: "In accordance with the decisions of the Supreme

9 Defence Council, the President of the Republic:"

10 Subparagraph 1: "Orders implementation of the country's defence

11 plan, commands the Army of Yugoslavia in wartime and peacetime, and

12 decides on the country's territorial division into military areas."

13 Those are the first three paragraphs of Article 40.

14 Article 40, subparagraph 1, referred to a defence plan. Article

15 85 of this Law on Defence deals with the defence plan and the Supreme

16 Defence Council was to issue a defence plan, a plan for the defence of the

17 country within six months of the day this law comes into force, which was

18 in 1994.

19 Now I turn to Article 41 of the Law on Defence, and I believe at

20 this point I'll start addressing the question posed to me a moment ago by

21 Judge Chowhan. Article 41 on the Law on Defence sets out eight

22 subparagraphs in relation to the Supreme Defence Council. And I'll quote

23 this section in its entirety again.

24 "The Supreme Defence Council:"

25 Subparagraph 1: "Adopts the country's defence plan."

Page 12330

1 Subparagraph 2: "Renders decisions in accordance with which the

2 President of the Republic commands the Army of Yugoslavia."

3 Subparagraph 3: "Assesses possible war and other dangers to the

4 defence and security of the country."

5 Subparagraph 4: "Determines the equipment and weapons needed for

6 the country's defence."

7 Subparagraph 5: "Determines the arrangement of the territory for

8 the country's defence."

9 Subparagraph 6: "Determines the strategy of armed conflict and

10 the rules on the use of force in the country's defence and the conduct of

11 war."

12 Subparagraph 7: "Approves the basic elements, training plans, and

13 programme for the country's defence and preparation for work in areas

14 relating to the country's defence."

15 Now, when I turn to -- now to reviewing the minutes of the Supreme

16 Defence Council, which are in evidence, I ask the Chamber to bear in mind

17 the language and the powers conferred on the Supreme Defence Council by

18 Article 41. It deals with the country's defence, it makes assessments, it

19 makes determinations, it provides counsel to the Commander-in-Chief, the

20 president of the federal republic. And not to get ahead of myself, I

21 submit that when we go through the minutes of the meeting, which I intend

22 to do right now, that will be borne out.

23 First I will enumerate the minutes of the meeting which are in

24 evidence: P1573 is the 3rd Session of the Supreme Defence Council, 24

25 December 1997; P1574 is the 5th Session of the Supreme Defence Council, 9

Page 12331

1 June 1998; P1575 is the 6th Session of the Supreme Defence Council, 4

2 October 1998; P1576 is the 7th Session of the Supreme Defence Council, 24

3 November 1998; P1000 is the 8th Session of the Supreme Defence Council, 25

4 December 1998; and P1577 is the 9th Session of the Supreme Defence

5 Council, 23 March 1999.

6 Two sets of the rules of procedure of the Supreme Defence Council

7 are in evidence, they are 2622 -- P2622, the rules of procedure from 23

8 July 1992; and P1738, the rules of procedure from 23 March 1999.

9 Now, I've asked the Chamber to bear in mind the language of

10 Article 41 on the Law on Defence, and I would also invite the Chamber to

11 simply peruse the - as a starting point - the agendas of each of the

12 meetings I've just described to you. What sort of matters are brought

13 before the Supreme Defence Council? On what issues are decisions brought,

14 in accordance with which the president of the FRY commands the army?

15 Well, it deals with personnel issues, the 5th -- at the 5th Session, for

16 example, there was a discussion on the military and political situation in

17 the region and the situation at the state border with the Republic of

18 Albania. Matters dealing with the military budget are discussed. You'll

19 see when you review these minutes that there's the issue of Republic of

20 Serbia and the Republic of Montenegro making contributions to the military

21 budget. Financing comes up a lot. Personnel matters comes up a lot. In

22 December there's information given on candidates for the post in the Army

23 of Yugoslavia to be decided by the president of the FRY.

24 On 23rd of March, 1999, on the eve of the war there's a discussion

25 on the current military and political situation in the region, and danger

Page 12332

1 of NATO aggression against the FRY.

2 So we say that even the -- as a preliminary step, a perusal of the

3 types of matters and issues brought before the Supreme Defence Council

4 supports our contention that this is an advisory body. But let's go

5 further, let's look at the details.

6 I would take you first to the 5th Session of the Supreme Defence

7 Council on the 9th of June, 1998, P1574. There the agenda has two items:

8 Personnel issues and the second item is interpretation of the present

9 military and political situation in the region and the situation at the

10 state border to the Republic of Albania. I remind you we're in June 1998.

11 Now, General Perisic is present at this meeting, and when you

12 review his report to the Supreme Defence Council, he talks about the level

13 of danger facing the FRY from the vicinity. He talks about from the

14 Italian territory, from Macedonia, from Bosnia and Herzegovina, terrorist

15 training camps in Albania, and the conclusion, unanimous conclusion,

16 reached by the three presidents is threefold. First, the report by the

17 Chief of Staff is hereby accepted - I'm at page 3 of this exhibit. The

18 second conclusion: Should terrorist activities of the Albanian separatist

19 movement escalate, the Army of Yugoslavia will intervene appropriately;

20 and the third part of this decision is, conclusion: The Army of

21 Yugoslavia will be prepared to oppose any form of foreign intervention

22 that can endanger the sovereignty and territorial integrity of the

23 Socialist Republic of Yugoslavia.

24 We say this is an example of the nature of discussion, the nature

25 of this body, the Supreme Defence Council. Information is provided,

Page 12333

1 discussions are held, assessments are made, views are expressed and

2 exchanged, and this body is dealing with national defence. We say it's an

3 advisory body and an advisory body to the president of the FRY who

4 commands the VJ as the Supreme Commander.

5 The examples I've just given you of the conclusions or the

6 decisions are spelled out in the broadest terms, general declarations,

7 general findings, based on the power conferred on the Supreme Defence

8 Council by the law. And I'll proceed to the next several meetings and I

9 submit that you will see that as we go through the year 1998 and up to

10 1999 that this is, in fact, the way this body functioned, as I've just

11 described.

12 The 6th Session, 4 October 1998, P1575. One item on the agenda,

13 which is the interpretation of the present military and political

14 situation in the region. The context is UN Security Council Resolution

15 1199, that's Exhibit P456. Again, General Perisic is there and he

16 transmits an assessment that was made by the General Staff of the VJ. He

17 says that the present military and political issues in the region deal

18 with the defence capabilities of the FRY, an assessment of a NATO attack

19 by air, sea, and land. He says that the General Staff came to the general

20 consensus that to ensure peace there should be full compliance with UN

21 Resolution 1119 [sic], that a peaceful solution through dialogue and

22 political means should be sought, but that the country should defend

23 itself if attacked.

24 Now, Mr. Milutinovic spoke at this meeting and at page 4 I'll

25 quote what he said. The minutes record that: "The President of the

Page 12334

1 Republic of Serbia, Milan Milutinovic, agreed with the assessment of the

2 military and political situation which General Perisic had presented with

3 regard to NATO forces, but expressed the hope that reason would, however,

4 prevail and there would be no strikes. But if the whole of the US [sic]

5 Resolution was examined point by point -- UN Resolution was examined point

6 by point, we have practically done everything. If we need to do something

7 more, then let us do it to avoid strikes. However, if despite everything

8 we are attacked, we will have to be prepared to the utmost, we have to

9 defend the country."

10 On pages 7 and 8, President Milosevic stated four points that

11 flowed from this meeting. The first point is the suspension of combat

12 operations. Remember, we're in October 1998 and there was the suspension

13 of the fighting at that time. We're just on the eve of the

14 Milosevic-Holbrooke KVM agreement.

15 Second: "The withdrawal of forces to the permanent stations in

16 proportion to the suspension of terrorist activities which is part of our

17 agreement with President Yeltsin of Russia." We have evidence in this

18 case that in mid-June there was the Yeltsin-Milosevic agreement which

19 brought KDOM and ECMM to the territory.

20 Third: "The opening of the entire area for free movement by

21 representatives of the UNHCR and the International Red Cross in order to

22 help resolve the humanitarian problems."

23 And four: "Our readiness for dialogue and the peaceful resolution

24 of problems."

25 And what's the conclusion of the Supreme Defence Council, what is

Page 12335

1 its decision? It's this, a unanimous decision: "Yugoslavia is firmly in

2 favour of peace and ready to resolve all open questions by peaceful means,

3 but if the country is attacked we shall defend ourselves with all possible

4 means."

5 That's a decision on the Supreme Defence Council in accordance

6 with which the federal president, Mr. Milosevic, commanded the VJ.

7 I move to the 7th Session of the Supreme Defence Council, 24

8 November 1998, P1576. Two items on the agenda: A review of the military

9 budget for 1999 and personnel issues. The only relevance or importance, I

10 would say, in relation to the budgetary issue is that we see the

11 beginnings of the problems that were existing between Montenegro and the

12 FRY. You'll see, when you review this -- these minutes, that

13 President Djukanovic is informed and reminded that Montenegro's not paying

14 its fair share into the military budget. We also know, we have evidence

15 here from witnesses that in later meetings Mr. Djukanovic was being

16 obstructive at the VS Supreme Defence Council and indeed, he stopped

17 coming to meetings.

18 Personnel issues, here the issue of replacing the Chief of the

19 General Staff and filling the vacancy of the air force and anti-aircraft

20 defence commander. President Milosevic proposed the replacement of

21 Colonel-General Perisic, and he puts forward two names:

22 Colonel-General Velickovic and Colonel-General Ojdanic. And the reasons

23 put forward for Mr. Milosevic for replacing General Perisic are at page 3

24 that: "Perisic has been in the post for an uncommonly long period."

25 President Milosevic says: "In the future the Chief of the General

Page 12336

1 Staff should not hold the post so long, stating the example of the USA,

2 where three generals held the post in the past five years."

3 President Milosevic also points out that: "Mr. Perisic has been

4 appointed advisor to the federal government on defence issues and after a

5 transformation of the federal ministry, and the General Staff he may even

6 be destined to become the federal minister of defence."

7 Now, in this meeting you'll see that President Djukanovic is

8 opposed to replacing General Perisic. He supports the re-organisation of

9 the General Staff, he supports the re-organisation of the federal Ministry

10 of Defence. He's opposed to replacing Perisic, he says, because length of

11 time as chief of staff is not a factor. "In his view Perisic is a proven

12 authority with great experience, good cooperation with Montenegro, defends

13 the interests of the VJ at home and abroad, and he's better prepared for

14 the position than the other candidates."

15 Mr. Milutinovic makes this observation at page 4, and I quote,

16 "President Milutinovic had a different opinion with regard to the issue

17 of replacing the superior officer of the General Staff, although he does

18 not contest what President Djukanovic said." He pointed out that: "We

19 need a Chief of General Staff who is an excellent operative. At the

20 international level, General Perisic acted in accordance with political

21 instructions of legitimate organs of this country's political government.

22 That was undoubtedly successful. Nevertheless he has been holding that

23 post for a long time and a change should be made. We now have parallel

24 institutions in the General Staff and the federal Ministry of Defence,

25 SMO, and doubling of some activities which is evidently uneconomical and

Page 12337

1 expensive."

2 Mr. Milutinovic goes on to say: "As for the good opinion others

3 have of Perisic at the international level, that should be taken with a

4 grain of salt and we shouldn't pay much attention to that. We will settle

5 our internal affairs as we think best and not according to their

6 interests. General Ojdanic is less well known to the general public,

7 perhaps, but he is not less excellent in comparison with the present Chief

8 of Staff."

9 Then there is an exchange between President Milosevic and

10 President Djukanovic which ties in to Articles 135 and 136 of the federal

11 constitution and the powers of the president and the role of the Supreme

12 Defence Council.

13 President Djukanovic says this in relation to his opposition to

14 replacing Colonel-General Perisic. I quote at page 5: "The response to

15 that, President Djukanovic again insisted that they establish that the

16 president of Montenegro expressed a negative opinion with regard to

17 replacing the Chief of Staff of the VJ, Colonel-General Momcilo Perisic.

18 He then went on to say that the regulations regarding jurisdiction over

19 the army are clear, that it is not good that the earlier practice in the

20 work and decision-making process of the Supreme Defence Council is being

21 abandoned."

22 How does President Milosevic respond to that? He invokes Articles

23 135 and 136 of the federal constitution. And this is the crux of the

24 point in our submission. At page 5, "President Milosevic pointed out that

25 he was satisfied with the manner of debate at the session of the Supreme

Page 12338

1 Defence Council. Despite some differences. The debate was constructive

2 and correct. He also reminded council members that according to the

3 constitution of the SR Yugoslavia, decisions on the appointments of

4 generals are issued by the president of the republic."

5 President Milosevic said: "According to the constitution the

6 jurisdiction of the president of the republic in relation to the Army of

7 Yugoslavia is regulated in two articles." He refers to 135 and 136. He

8 says, "In one it says" - in my submission, he is referring to 135 - "in

9 one it says that the President of the Republic commands the army in

10 accordance with decisions of the Supreme Defence Council," and then it

11 says who are the members and who the president of the Supreme Defence

12 Council is. This article pertains to the use of the army. A standpoint

13 is adopted about it at the council and authorities are transferred on to

14 direct executives such as, for instance, the engagement of additional

15 forces in Kosmet, Kosovo and Metohija.

16 Then President Milosevic refers to Article 136 of the

17 constitution. In the next 136th article of the

18 constitution: "Jurisdiction of the President of the Republic are

19 regulated in the appointment and discharge of generals, military court

20 judges, military prosecutors, and their deputies in accordance with the

21 federal law. This is the Law on the Army of Yugoslavia in which the

22 jurisdiction of the President of the Republic are further specified."

23 Then President Milosevic explains that he will seek the opinion

24 and consult members of the VSO, but the final decisions are his. He says,

25 "President Milosevic noted that until recently the practice and the work

Page 12339

1 of the Supreme Defence Council was to put many issues on the agenda and

2 that the federal government and other organs can decide about. The

3 council's opinion was sought even for matters that are exclusively and

4 constitutionally in the jurisdiction of the president of the republic.

5 "Concluding the debate, the President said he would always in the

6 future consult members of the Supreme Defence Council, presidents of the

7 member republics, about the most important issues pertaining to the Army

8 of Yugoslavia.

9 JUDGE CHOWHAN: But then, sorry for interruption, now we know what

10 is consultation. One is a consultation which has a binding effect. One

11 is a consult -- and this has been discussed in various constitutions. One

12 is an advice which has a binding effect and one is an advice that's just

13 advice and like ether, it goes away. But when you talk of consultation

14 here, now things are becoming different here, when he may consult but he

15 may follow his own views. I mean, this requires a bit of elucidation.

16 MR. O'SULLIVAN: Well, I think you find the answer to that,

17 Your Honour, when you look in the rules of procedure and the -- who calls

18 the meetings and the agenda and what -- what is or what is not put on the

19 agenda.

20 JUDGE CHOWHAN: Would you be kind enough then in showing from the

21 minutes of the meeting how all this took a shape and how the president was

22 bound or was he not bound or whether he overruled or whether he did this

23 because in appointments he had the absolute power. Consultation can be

24 just a consultation.

25 MR. O'SULLIVAN: Well, I think the -- the answer, in my

Page 12340

1 submission, is - and I'll come -- perhaps I'm getting ahead of myself but

2 I will answer the question. It is the phrase: "In accordance with the

3 decisions of the Supreme Defence Council." What we must look at is what

4 in fact was on the agenda and if a matter is not -- if there's no decision

5 by the Supreme Defence Council, then there's nothing in accordance with

6 which the federal president has his discretion or powers fettered.

7 In other words, if we look at factually which matters are brought

8 before this body, they deal with personnel, they deal with information,

9 they deal with consultations and assessments. Now, if -- if the agenda,

10 in fact, did include a whole array of other things, command and control

11 and anything else, then perhaps then it can be argued. But we must look

12 at exactly what took place and what -- and the way in which

13 President Milosevic understood Articles 135 and 136. And the next meeting

14 of the Supreme Defence Council, I believe, expands a bit on that again.

15 Because here we see president -- President Djukanovic questioning or

16 opposing an appointment and President Milosevic invoking 135 and 136 of

17 the FRY constitution.

18 And in the next meeting in December we have a further exchange

19 between President Milosevic and President Djukanovic. But I think we

20 cannot sit back in the abstract and limit ourselves to the language of the

21 constitution or the law on the VJ and the law on the Defence. We must

22 look as well at what is the nature of the body in practice, what matters

23 are brought before this body and the tone of discussions, the nature of

24 the conclusions, all of which, in our submission, are there -- it's there

25 as a consultative body. That's -- and that's what President Milosevic is

Page 12341

1 saying, that he would seek the opinion of members and he would consult

2 with them.

3 The 8th Session of the --

4 JUDGE BONOMY: I suppose, Mr. O'Sullivan, as long as he had

5 Mr. Milutinovic agreeing with him generally, it really didn't matter very

6 much what Djukanovic thought and what, strictly speaking, the constitution

7 said.

8 MR. O'SULLIVAN: Well, that is a comment that can be made, I would

9 say, if you divorce yourself from what exactly was discussed or what was

10 brought before this body. And the specific question of promotions is

11 expressly granted to the federal president.

12 JUDGE BONOMY: But the comment by Milosevic was wider when he

13 said, "On important matters from now on I will consult, but I will make

14 the decisions." And that statement's consistent with Djukanovic saying,

15 Well, we're departing from previous practice. But if you've got the power

16 by majority you can depart from the previous practice, whatever the rules

17 say. So there's a de facto situation to be dealt with also, I think.

18 MR. O'SULLIVAN: Well, the de facto situation, in my submission,

19 is dealt with by the very nature of the matters that are brought before

20 this body.

21 JUDGE BONOMY: All right.

22 MR. O'SULLIVAN: I move to the 8th Session in December 1998, which

23 is P1000. There the agenda has three matters: A discussion on the

24 situation of the state border with the Republic of Albania; financing of

25 the VJ in 1999; and a report on the proposed appointments in the VJ

Page 12342

1 submitted for decision to the president of the FRY. Now, the discussion

2 on the situation at the state border is dealt with in a report by

3 General Ojdanic, who at this point is the chief of staff, and he's

4 reporting on the border between the FRY-Albania-Macedonia. He's reporting

5 on illegal border crossings from those neighbouring countries between

6 January and December 1998 and all the problems that's causing in the

7 sector of the Pristina Corps.

8 In our submission, there's nothing particularly relevant to the

9 discussion on financing, and on the promotions and appointments,

10 President Milosevic says that it's a year-end, it's the tradition time for

11 promotions and appointments and the cessation of service and he requests

12 comments, suggests, and remarks about those appointments and again

13 President Djukanovic says that he notes that this is for information

14 purposes only and notification and that the decision is made by the

15 president of the FRY.

16 At page 9, President Djukanovic said that: "This item of the

17 agenda came under the heading of information, which means that it's only

18 presented for the council's notification, but that it is not decided upon

19 by the council but by the president of FRY. However, in his opinion, the

20 other participants at the session should have the possibility to give

21 their opinions on the matter in the discussion, regardless of the

22 distribution of authority which is as it is."

23 We've heard evidence in this trial in relation to P1000, these

24 minutes of the Supreme Defence Council. And it's at this point when this

25 was shown to General Vasiljevic and General Vasiljevic, both in this trial

Page 12343

1 and in the Milosevic trial, pointed out that at this point it was common

2 knowledge that President Djukanovic was being obstructionist and, indeed,

3 that was the position of his evidence in Milosevic. The Prosecution knew

4 that, and they adduced it from him in this trial as well, and in fact,

5 that testimony in Milosevic is an exhibit in this case.

6 JUDGE BONOMY: This would also be consistent with the idea that

7 Djukanovic was continuing his protest but now he's trying to restore the

8 right to be consulted, having lost the right to participate in the

9 decision and the agenda heading simply says "notification" now. So he's

10 expressing the view that he's not even being consulted anymore.

11 MR. O'SULLIVAN: Well, the rules of procedure don't say that.

12 President Djukanovic can propose an agenda or items for the agenda;

13 there's no complaint about that.

14 And of course we're not -- we are not here to debate anything

15 other than whether or not there's proof beyond a reasonable doubt that

16 this body is, as the Prosecution alleges, in command of the VJ and forces

17 of the country. And we're saying, well, if there's all these different

18 interpretations, surely, surely, the innocent one must be adopted for

19 Mr. Milutinovic. When we look at the totality of the evidence of the

20 constitution, the laws, the nature of the debates, the tone of the

21 debates, the agendas, and the voting as -- in these meetings.

22 The Prosecution's taken the position that when President Milosevic

23 says that there's nothing irregular about the use of the Pristina Corps,

24 that's page 8651 of our transcript, the Prosecution, during the testimony

25 of General Vasiljevic, the Prosecution has taken the position that

Page 12344

1 Mr. Milosevic is lying to the other members of the Supreme Defence Council

2 when he says there were no complaints domestically or abroad, because he

3 was withholding the information of the letter that General Perisic sent to

4 him in July. If that's the Prosecution's position, I make no further

5 comment on it.

6 But what are the conclusions of this meeting? Again, what's the

7 decision? It's a unanimous decision and there are -- it's

8 threefold. "First, in Kosovo and Metohija, the Yugoslav Army operated in

9 accordance with the rules of service. The Pristina Corps carried out its

10 tasks very successfully; Two, for personnel to have better conditions to

11 protect the border, that is, in order to increase the length of individual

12 border stretches under control, it is necessary to build new border posts,

13 especially along the border with Albania, provide an adequate boat on

14 Lake Skadar for securing the border running through the lake; and 3, the

15 Supreme Defence Council will continue to be apprised of all matters

16 regarding the army and all remarks shall be discussed and taken into

17 account in the decision-making process."

18 And the last minutes I wish to discuss with you are P1577, the 9th

19 Session on the 23rd of March, 1999. President Djukanovic is not present.

20 The agenda has two items. The first is consideration of the current

21 military-political situation in the region and the danger of a NATO

22 aggression on the FRY, and the second point is consideration of the rules

23 of procedure of the Supreme Defence Council.

24 Clearly we're on the eve of the -- of the war and the threat of a

25 NATO attack against the FRY. At page 2, Mr. Milutinovic made this

Page 12345

1 observation: "The President of the Republic, Milan Milutinovic,

2 especially emphasised that our delegation in Rambouillet did everything in

3 its power to find a peaceful solution to the problem in Kosovo and

4 Metohija but that the west had obviously decided to mark the 50th

5 anniversary of the formation of NATO in a spectacular manner and

6 considering everything, it is ready to as soon as tomorrow carry out an

7 aggression against our country from the sea and air."

8 What are the conclusions on this point of the agenda? What's the

9 decision?

10 Page 2: "Concluding the debate regarding the first item on the

11 agenda President Milosevic pointed out the realistic threat of aggression

12 and recalled the stand presented early in October 1998 at a session of the

13 Supreme Defence Council, VSO, that the FRY would do everything to find a

14 peaceful solution to the problem in Kosovo, but if we should be attacked

15 we shall defend the country with all means."

16 That's the decision taken on the eve of the war in accordance with

17 which president of the FRY commanded the VJ. The same conclusion that had

18 been arrived at in October 1998. There's also consideration in the

19 adoption of new rules of procedure for the Supreme Defence Council at

20 pages 2 and 3, it says: "The council considered the innovative text of

21 the rules of the procedure of the Supreme Defence Council. The

22 participants of the session stated that the text of the rules of procedure

23 provided conditions for the efficient work of the sessions of the VSO,

24 Supreme Defence Council, and adoption of its decisions."

25 In our submission, we see the real nature and power of the Supreme

Page 12346

1 Defence Council through the constitutions, legislation, and the minutes.

2 Under Article 135, the president -- the federal president in wartime and

3 peace commands the army in accordance with the decisions of the Supreme

4 Defence Council. There's one commander who's the president of the FRY,

5 the Supreme Commander, based on the principle of unity and singleness of

6 command. We see that in 1998 there were, in fact, four meetings of the

7 Supreme Defence Council, minutes of three of those meetings are in

8 evidence. One meeting in 1999 on the 23rd of March. And there's no

9 evidence of any further meeting of the Supreme Defence Council thereafter,

10 and particularly not during the indictment period after the 23rd of March,

11 1999.

12 What does the phrase "in accordance with the decisions of the

13 Supreme Defence Council" mean? I've asked the Court to look at the

14 practice as reflected in the minutes. Look at the nature of the topics

15 and the matters brought before the Supreme Defence Council for decision.

16 They are entirely consistent with Article 41 of the Law on Defence,

17 information, discussion, advice; no command authority, no issues of

18 command are ever raised or discussed. The Supreme Defence Council did not

19 meet during the war, as I said. P1738 are the rules of procedure adopted

20 on the 23rd of March, 1999. It increases the quorum, to have the three

21 presidents along with the minister of defence and the chief of general

22 staff present to constitute a quorum of the Supreme Defence Council.

23 We say that the Supreme Defence Council plays no role in

24 commanding the VJ or other forces. The presidents of the republics,

25 Mr. Milutinovic and Mr. Djukanovic, play no role in commanding the armed

Page 12347

1 forces. It's a federal army. The declaration of war is a federal act.

2 It's federal jurisdiction, declared by the federal government, the

3 minister of defence is federal; the Commander-in-Chief is the federal

4 president commanding the federal army in a time of war.

5 That's both the legal and factual analysis that shows that the

6 Supreme Defence Council is not the body that the Prosecution alleges that

7 it is.

8 Let me now turn to the evidence, and the evidence here of course

9 is quite scant, isn't it, Your Honours? The only person who was brought

10 to this court who can speak to these issues was General Vasiljevic. Our

11 submission, he's not qualified to give evidence in relation to the

12 Supreme Defence Council. He retired from the JNA in 1992, in May 1992.

13 The constitution of the FRY came into force on the 27th of April, 1992,

14 weeks before his retirement. In the transcript at 8642,

15 General Vasiljevic said he was not familiar with the constitution, and

16 when he was reinstated in April 1999, he says he did not read the

17 constitution, and furthermore he can offer no expertise at all in relation

18 to the constitutions, regulations, and laws.

19 But what did General Vasiljevic tell you? He spoke about the

20 Supreme Commander and the Supreme Command Staff during the war. You'll

21 note that General Vasiljevic was an assistant to General Farkas who was a

22 member of the General Staff of the VJ. That's the position

23 General Vasiljevic assumed in 1999. General Vasiljevic said the General

24 Staff becomes the Staff of the Supreme Command, and he said that there was

25 a -- yes, General Farkas was a member of the General Staff of the VJ.

Page 12348

1 When asked directly by the Prosecution, General Vasiljevic says

2 that the Supreme Commander was President Milosevic and the Supreme

3 Commander gave direction to the army through the command staff. The

4 Supreme Commander refers to the individual who was giving direction to the

5 VJ through the General Staff. He said that in his testimony here; He said

6 it in P2600, which is his OTP interview, paragraphs 15 and 16; he said it

7 in P2589, which is his testimony in Milosevic beginning on page 15964.

8 General Vasiljevic said the reports went up the vertical chain of command.

9 The Staff of [Realtime transcript read in error "and"] the Supreme Command

10 reported to President Milosevic as the Supreme Commander.

11 We ask you also to consider -- yes, line 18 should be the Staff of

12 the Supreme Command reported to President Milosevic as the Supreme

13 Commander.

14 We ask you also to consider a number of contemporaneous exhibits,

15 a publication, which has been entered into evidence by agreement, the

16 Vojska magazine. The first edition I refer you to was 1D459, dated 27

17 March 1999. It's a short article written to explain the legal

18 consequences and mechanisms during a state of war, what happens. It talks

19 about the -- Mr. Milosevic, the federal president being the

20 Commander-in-Chief; describes the presidential powers; describes the state

21 of war; and there's no reference to the president of Serbia or Supreme

22 Command.

23 1D460 is the 5th of April, 1999, President Milosevic is referred

24 to as the president of the republic and Supreme Commander when he meets

25 Mr. Rugova; 1D461, 7th of April, again President Milosevic as the Supreme

Page 12349

1 Commander; 1D462, 10th of April, 1999, President Milosevic, the president

2 and the Supreme Commander receives representatives from Greece, Russia,

3 and Hungary; 1D463, 14th of April, 1999, President Milosevic, the Supreme

4 Commander, receives foreign representatives; 1D467, 29 April 1999,

5 President Milosevic, Commander-in-Chief, receives congratulations on FRY

6 day, 28th of April, 1999; 1D468, 10th of May, both President Milosevic and

7 President Milutinovic are mentioned in this article. President Milosevic

8 is the president and the Supreme Commander who receives a Greek

9 delegation. President Milutinovic, the president of the Republic of

10 Serbia, receives the same Greek delegation. He's described only as the

11 president of the Republic of Serbia.

12 Your Honours, there's no evidence in this case that

13 Mr. Milutinovic was a member of a body called the Supreme Command. The

14 Prosecution cannot point to even the existence of a body called the

15 Supreme Command. The evidence is that there was a supreme commander, who

16 was the president of the FRY; the evidence is that the Supreme Defence

17 Council did not meet; Mr. Milutinovic had no role in any of the

18 allegations as set out and alleged by the Prosecution in its indictment.

19 Let me turn now to 1998 and the acts and conduct of

20 Mr. Milutinovic and his state of mind, as reflected in the Prosecution's

21 evidence. We all know very well that there's been very little evidence

22 heard in this court in relation to Mr. Milutinovic during the

23 Prosecution's case. The evidence is nothing short of scant. There's

24 absolutely no evidence of any criminal intent or criminal conduct by

25 Mr. Milutinovic. Let's look first at P455 which is a UN Resolution 1160,

Page 12350

1 31st of March, 1998. There the Security Council is talking about the best

2 way to defeat terrorism in Kosovo, to offer the Kosovar Albanians a

3 genuine political process. It calls on the leadership in Belgrade and of

4 the Kosovar Albanians to meet for meaningful dialogue. It calls on

5 granting substantial -- a substantial degree of greater autonomy and

6 meaningful self-administration to Kosovo. And it refers to the education

7 agreement and declaration made by Mr. Milutinovic on the 18th of March,

8 1998. That declaration by Mr. Milutinovic is 1D79, 18th of March, 1998.

9 Mr. Milutinovic calls for immediate political dialogue between the

10 representatives of the Government of Serbia and the Albanian leaders.

11 Mr. Milutinovic holds himself out as a guarantor of these

12 discussions based on territorial integrity and self-government for Kosovo

13 and Metohija within Serbia. He makes an appeal for seeking dialogue,

14 peaceful methods, and political means. Mr. Milutinovic calls for the

15 implementation of the education agreement, and he says at one point: "I

16 point out my conviction that the future of the citizens in Kosovo and

17 Metohija as one of those -- as well as those in Serbia and in all of our

18 country does not lie in ethnic, religious, or cultural closing-up and

19 divisions, but in peace, equality, integration, and life together."

20 Now, what's the context of this resolution and Mr. Milutinovic's

21 speech? Well, we have exhibits to that effect, 1D78 is a statement by the

22 Government of Serbia on the 11th of March, 1998, which creates a state

23 delegation headed by Deputy Prime Minister Ratko Markovic. You'll know

24 that Professor Markovic eventually leads the state delegation to

25 Rambouillet, but we're in March 1998.

Page 12351

1 The second important exhibit is 1D18, e-court pages 90 and 91,

2 it's the agreement on measures on education where there had been agreement

3 for the re-opening of the Institute of Albanology, the re-opening of the

4 university faculties in Pristina with future plans to open more faculties,

5 opening elementary schools, high schools. The next exhibit is 1D82, again

6 a statement by the Government of Serbia, 31 March, 1998. It expands the

7 Markovic state delegation to include minorities, including Albanians from

8 Kosovo, in that delegation. It also includes Professor Kutlesic, who at

9 that time was one of the deputy prime ministers of the federal government

10 who was a Special Envoy to President Milosevic to take part in that

11 committee and meet and try to reach a peaceful, meaningful solution to the

12 problems in Kosovo.

13 Not to belabour the point that I made earlier this morning about

14 Article 9(2) of the Serb constitution, but the speech and undertaking by

15 Mr. Milutinovic is consistent with his role as the symbol of unity for the

16 Republic of Serbia. He's holding himself out as a guarantor, making

17 himself available for this process, speaking on behalf of all citizens of

18 Serbia, calling on the Albanian leadership to enter into dialogue. His

19 acts and conduct and state of mind here are consistent with the powers of

20 the president of Serbia and in no way suggest any malevolence or criminal

21 intent. We know that on the 7th of April, 1998, President Milutinovic

22 travels to Kosovo and Metohija with the delegation headed by

23 Professor Markovic to meet the Albanian leaders who did not appear for the

24 meeting.

25 On that occasion, 1D83, President Milutinovic makes a statement,

Page 12352

1 7th of April, 1998, he says that the future of all citizens of Kosovo and

2 Metohija and Serbia and the whole country is not in ethnic division or

3 cessation but in equality and well-linked mutual life. He calls on

4 continued dialogue despite the refusal of leadership and again he pledges

5 that he himself is ready to meet at any moment in Belgrade whenever the

6 representatives of the Albanian political parties decide to do so.

7 Now, Ambassador Petritsch was here. You know that he was the

8 Austrian Ambassador to Yugoslavia and the EU Special Envoy on Kosovo. He

9 was aware of these speeches by Mr. Milutinovic. He knew that he was

10 making repeated efforts to encourage the Kosovo Albanian representatives

11 to meet with the Markovic delegation. I'm referring to pages 1075 --

12 10785 to 10788. He knew that Mr. Milutinovic was critical of the

13 Albanians for not appearing when invited, and that Mr. Milutinovic kept

14 emphasising the importance of this issue to Serbia to find the solution, a

15 resolution to the problem in 1998, and that was one of his key objectives

16 and an objective of the Serbian government.

17 Professor -- Ambassador Petritsch also was aware of the fact that

18 in the spring of 1998, 12 to 15 different invitations, coming either from

19 the government, Professor Markovic, and at times from Mr. Milutinovic,

20 were ignored by the Albanian majority leadership.

21 Now, you've also heard evidence that this whole problem of Kosovo

22 became internationalised in mid-June with the Yeltsin-Milosevic Agreement.

23 Ambassador Byrnes and Ambassador Petritsch spoke about that, that's 1D18,

24 289, that brought KDOM and ECMM to the mission. Ambassador Petritsch --

25 The Yeltsin-Milosevic agreement is 1D18, page 289. My apologies.

Page 12353

1 This brought international involvement to Kosovo and Metohija,

2 with constructive rule on the part of Russia. It brought freedom of

3 movement to accredited diplomats, access by humanitarian organisations,

4 state assistance to rebuild homes. There's also evidence in the case of

5 visits to Kosovo and Metohija in 1998 by Mr. Milutinovic. One such visit

6 was the 23rd of September, 1998. Several witnesses have testified about

7 events relevant to that visit, we say. Dr. Dunjic was a pathologist who

8 autopsied bodies at Radonjic Lake; John Crosland was a British military

9 attache who visited Radonjic Lake and observed the bodies; Zlatomir Pesic

10 was a VJ officer who attended this meeting on the 23rd of September; as

11 was Ljubinko Cvetic, a MUP officer who attended that meeting.

12 We say that the visit by Mr. Milutinovic occurred on the 23rd of

13 September, 1998, shortly after the times of the killings at Radonjic Lake,

14 which at the time were believed to be killings committed by the KLA.

15 Mr. Pesic and Mr. Cvetic were present at the meeting. The evidence of

16 Mr. Pesic is, and that's P2502, his supplemental information and

17 transcript, 7215, 7217, his evidence is that Mr. Milutinovic was a guest

18 of the MUP in a small hall where attendees sat in rows. He sat in the

19 fourth row. Mr. Milutinovic and General Lukic sat at a front table.

20 Mr. Milutinovic addressed the group on the political and security

21 situation in Serbia and how it reflected on the situation in Kosovo and

22 Metohija.

23 Mr. Cvetic gives a similar account of that meeting, that's

24 transcript 8189, Cvetic, yes. He recalls that Mr. Milutinovic said that

25 terrorism had been defeated, the conditions for resolving problems in

Page 12354

1 Kosovo and Metohija by a peaceful means had been created, that only

2 minority terrorist groups remained, the security situation would improve,

3 and everyone should work in line to help resolve the problems.

4 What other evidence is there of activities of Mr. Milutinovic in

5 1998? We know that on the 14th of October, he attended a meeting of the

6 Government of Serbia, that's P656, Serbian government endorses accord

7 reached by President Milosevic, that's the Holbrooke-Milosevic Agreements.

8 Mr. Milutinovic reported to the Serbian government on the talks held

9 between President Milosevic and Richard Holbrooke. He informed them of

10 the -- that the talks lasted over several days and that a definite accord

11 had been reached solving problems in Kosovo and Metohija in a peaceful way

12 by political means. He presented this report to the government, and in

13 particular the 11 points that flowed from the agreement between

14 Mr. Holbrooke and Mr. Milosevic and a timetable.

15 You have Exhibit 1D204, which is a copy of those 11 points and

16 timetable, which was submitted to the UN Security Council by the FRY at

17 the time.

18 Now, we are in early October. You know that there's

19 Exhibit 1D202, the conclusions of the National Assembly of Serbia, 28

20 September condemning terrorism; distinguishing between terrorists and

21 Albanian people; and condemning terrorist support from the Republic of

22 Albania; calling for dialogue, immediate continuation of dialogue;

23 democratic resolution of the problem; equality among Serbs, Montenegrins,

24 Albanians, Turks, Muslims, Roma, and others; and that the future of Kosovo

25 and Metohija was not to be built on ethnic, religious, or cultural

Page 12355

1 divisions. The list of people mentioned in this conclusion of the Serbian

2 Assembly should also include Albanians along with all the others.

3 You also have evidence, Your Honours, of what we've called the

4 Hill process, draft agreements which are 1D18 exhibits, prepared by

5 Ambassador Hill with the collaboration of Ambassador Petritsch on October

6 1st, November 1st, and December 2nd. Well, 1D86 and P556 are two

7 documents which give an account of a meeting chaired by Mr. Milutinovic

8 between Ambassador Hill, Professor Markovic, Professor Kutlesic, two

9 members of the state delegation including the head of that delegation,

10 calling for renewal and intensification of the negotiation process.

11 That's from the testimony of Ambassador Petritsch at page 10800.

12 You've already seen October 4th at the 6th Session of the

13 Supreme Defence Council Mr. Milutinovic has called for what he hoped would

14 be a reasonable resolution of the problem hoping that reason would prevail

15 and there would be no air-strikes and if more needed to be done to fulfil

16 the UN resolution then it should be done.

17 There's also evidence from October, a meeting in Belgrade on the

18 24th and 25th of October in 1998, on which you've heard extensive

19 testimony and there are numerous exhibits, primarily from General Naumann

20 but also Sean Byrnes, a process that lasted over a two-day period. The

21 relevant exhibits are P440, the 15 October 1998 Clark-Perisic air

22 verification agreement; P432, 16th October, Geremek-Jovanovic OSCE-KVM

23 agreement; P395, 25 October 1998 record of meeting; and P394

24 Byrnes-Djordjevic, KDOM-MUP understanding. P394 is the last one.

25 Mr. Milutinovic was present at that time but what is the evidence

Page 12356

1 about his role and what people remember about him? Well, General Naumann

2 in P2561, his supplemental information, says this: "In the technical

3 negotiations in October 1998, Mr. Milutinovic was present but not very

4 active."

5 Sean Byrnes, transcript 12155 to 12158, says that he recalls that

6 there were 30 to 40 attendees at a plenary meeting. He says: "I recall

7 the plenary was chaired by Mr. Milutinovic but my memory may be playing

8 tricks on me."

9 Now, at this point I will digress for a moment, Your Honours, and

10 talk about the nature of the evidence in relation to the acts and conducts

11 of Mr. Milutinovic. Mr. Naumann says Mr. Milutinovic was present and not

12 active, and Sean Byrnes says his memory may be playing tricks on him in

13 relation to Mr. Milutinovic. You'll also recall that Colonel Phillips

14 testified in this court. He attended a meeting with William Walker and

15 Slobodan Milosevic and he claimed that Mr. Milutinovic was present. He

16 gave conflicting accounts of that meeting and he went from saying that he

17 was pretty certain that Mr. Milutinovic was there to conceding that he may

18 very well be wrong about that.

19 Now, is there any -- is there evidence to suggest why

20 Mr. Milutinovic may have been present at these meetings? The only

21 evidence to that effect was given by Ambassador Vollebaek who was the head

22 of the OSCE. He said he met three times with President Milosevic and that

23 once or twice Mr. Milutinovic was present but he's vague and uncertain

24 about that as well. In his testimony, P2634, he offers his understanding

25 of why Mr. Milutinovic was present at some of these meetings, paragraph 39

Page 12357

1 he says: "I believe that this was to indicate that Kosovo was part of

2 Serbia and that they did not want to talk about Kosovo without the

3 president of Serbia present."

4 Well, we know what's happening in the country at this time. There

5 is armed insurrection there is an organised group that has taken up arms

6 to achieve a political end, which is independence from Serbia and FRY.

7 Surely the president of Serbia would be present, surely he would be

8 informed, surely it was an internal matter. He would have to be there.

9 We eel eve seen that he's already held himself out as a guarantor to the

10 process. He's travelled to Kosovo on the 23rd of March. He's informed

11 the government about results of meetings between Ambassador Holbrooke and

12 Mr. Milosevic and he's been present. There's evidence he was present when

13 General Naumann, General Clark, and Mr. Solana visited. We also saw that

14 he received Ambassador Hill during the Hill process.

15 We say that none of this evidence, none of this evidence, supports

16 any allegation that the Prosecution alleges in relation to

17 Mr. Milutinovic. He was the president of the republic after all, and his

18 mere presence establishes nothing.

19 Now, through the end of October and through November 1998, he's

20 also present at meetings, the evidence tells us. He was at meetings where

21 the security situation in Kosovo-Metohija is discussed and he's at

22 meetings working to find a solution, a peaceful solution to the problems

23 in Kosovo-Metohija. One exhibit is P2166 which purports to be the minutes

24 of a meeting of the operations interdepartmental staff for the suppression

25 of terrorism in Kosovo-Metohija, 29 October 1998. There is a discussion

Page 12358

1 on the suppression of terrorism in Kosovo and the security situation

2 generally.

3 Mr. Milutinovic is present. And he is recorded as having made

4 this intervention: "The president of Serbia, Mr. Milutinovic, considers

5 that the reports submitted by the members of the Joint Command for

6 Kosovo-Metohija should be accepted. He agreed with General Perisic's

7 opinion that we are confront confronting two enemies today: Albanian

8 secessionists and international community which is biased in their favour.

9 He says we have done everything we were supposed to do to appease

10 international factors, especially the US and NATO. The situation is as it

11 is. We have accepted OSCE monitors but not foreign troops. We must not

12 leave them to the Albanians. Our legal organs must ensure the necessary

13 conditions for their unimpeded work. We must make them understand simply

14 through the force of our arguments what the objective situation is so that

15 they can depict it as such without any bias towards either side.

16 "The OSCE mission consists of representatives of 53 states of

17 Europe and the US and it is certain that not all of them are against us.

18 President Milutinovic supported the proposal for consideration of the

19 continued status of the Joint Command. Milutinovic believed that the

20 Joint Command should continue functioning for a while, although that

21 should be given -- although thought should be given to whether it should

22 continue in its present membership or whether some changes should be

23 made."

24 That's at page 12 of those minutes.

25 At page 14, "President Milosevic recommends that

Page 12359

1 President Milutinovic, President of Serbia, go personally to Kosovo and

2 explain the substance of the agreement which we have reached with the

3 representatives of the international community to the presidents of the

4 districts and municipalities. The president remarked that members of the

5 OSCE monitoring mission cannot act arrogantly or seek wider authority than

6 what has been agreed on."

7 Well, on the 5th of November, 1998, President Milutinovic did

8 travel to Pristina. The Witness Ljubinko Cvetic was present at that

9 meeting that's 8187, 8189 of the transcript. He said Mr. Milutinovic

10 attended the meeting. Other attendees included Mr. Stojiljkovic, the

11 minister of the interior; Rade Markovic, the head of administration for

12 state security. The witness said that Mr. Milutinovic reported that the

13 Joint Command would remain in the same composition as when it was set up.

14 Mr. Milutinovic played no other role at that meeting, according to the

15 witness. And prior to the meeting Mr. Milutinovic met with political and

16 business figures in Kosovo and Metohija. At the meeting Mr. Milutinovic

17 explained the 11 points of the Holbrooke-Milosevic Agreement. He

18 explained that the OSCE mission would include 53 countries, 2.000

19 monitors. Mr. Milutinovic spoke about the political and economic issues,

20 saying that the Republic of Serbia would invest maximum efforts to help

21 Kosovo, to help the situation in Kosovo, to be dealt with peacefully using

22 political means.

23 And before the break I'll deal with just one other segment of

24 these submissions regarding the acts and conducts and we say the state of

25 mind of Mr. Milutinovic in 1998. That has to do with the joint proposal

Page 12360

1 for agreement on the political framework on self-governance in Kosovo and

2 Metohija. 1D91, this joint proposal is dated 20 November 1998. Coupled

3 with that is a declaration in support of this agreement, 1D18, page 372,

4 which is 25 November 1998. This agreement and declaration is the

5 culmination of a process that began in March 1998 with the establishment

6 of the Markovic delegation.

7 You recall I drew your attention to 1D204, the 11 points and

8 timetable that were submitted to the UN Security Council, the 11 points

9 and timetable that flow from the Milosevic-Holbrooke Agreement. Well,

10 there that agreement -- the timetable said that by November the 2nd there

11 would be the completion of an agreement containing the core elements for a

12 political settlement in Kosovo and Metohija.

13 Now, we know that during this time Mr. Milutinovic worked to

14 support -- gave his continued support to this process in November. And I

15 refer you to the 18th of November, 1D18, e-court pages 367, 369, it's a

16 statement by Mr. Milutinovic in Pristina two days before the signing of

17 the joint declaration. You have the full text of his statement; it's

18 agreed to by the parties. He said that: "Serbia's committed to having

19 the problems in KiM solved politically. Peace and common life are

20 possible only with genuine, not formal equality of all national

21 communities." He said that Serbia has reaffirmed both by state policy and

22 at the diplomatic level that it's firmly committed to a political way of

23 resolving the problems in Kosovo and Metohija.

24 "Exactly for being consistent with this approach, I emphasise that

25 Serbia is ready to fully defend and ultimately defend the achieved peace

Page 12361

1 and safety of all its citizens." And regardless of the nonattendance of

2 the Albanian representatives which was the case yet again, he said, "I

3 stand personally ready to meet with them at any time and discuss the vital

4 issues we discussed today." And of course the following day, on the 19th

5 of November, in Belgrade, 1D89, Mr. Milutinovic met with minority leaders

6 in Belgrade.

7 Your Honour, I believe it's time for a break.

8 JUDGE BONOMY: Thank you, Mr. O'Sullivan.

9 [Trial Chamber and registrar confer]

10 JUDGE BONOMY: Now, we shall adjourn now and resume at 1.45.

11 --- Luncheon recess taken at 12.45 p.m.

12 --- On resuming at 1.46 p.m.

13 JUDGE BONOMY: Mr. O'Sullivan.

14 MR. O'SULLIVAN: Thank you, Your Honour.

15 I've been making submissions now for two hours, and we've worked

16 out among ourselves that we would divide the time --

17 JUDGE BONOMY: There's no need to be concerned about that at the

18 moment, Mr. O'Sullivan. Just please carry on.

19 MR. O'SULLIVAN: Your Honour, before the break I was reviewing

20 evidence that we say reflects the acts and conduct and state of mind of

21 Mr. Milutinovic and I was taking you to 1998 and I move now to 1999.

22 Paragraph 36(c) of the indictment says: "In accordance with instructions

23 from Slobodan Milosevic, Milan Milutinovic was actively engaged in

24 international relations."

25 Well, first there's no evidence at all that Mr. Milutinovic was

Page 12362

1 receiving instructions from Mr. Milosevic, and there's surely no evidence

2 that he was taking instructions from Mr. Milosevic to engage actively in

3 international relations. The Prosecution's position seems to be that at

4 Rambouillet, the Serb delegation went there to obstruct and

5 Mr. Milutinovic was there as a foil to ensure the breakdown of those talks

6 to create I believe the Prosecution said "a window of opportunity" in

7 their opening statement to commit crimes. Well, we've heard the evidence

8 about Rambouillet. We know it to be quite different than what the

9 Prosecution alleges. We've heard the evidence of Veton Surroi, a member

10 of the Albanian delegation; we've heard the evidence of Wolfgang

11 Petritsch, one of the three Contact Group negotiators; and there's a very

12 large array of exhibits connected to Rambouillet through the testimony of

13 both Mr. Surroi and Mr. Petritsch.

14 The Court will recall that the relevant facts are that the

15 Rambouillet-Paris talks were organised by the Contact Group, that the

16 Serbian state delegation was sent to Rambouillet pursuant to conclusions

17 of the National Assembly, that's 1D93, conclusions taken on the 4th of

18 February, 1999, to send a delegation. P967 is a decision to appoint the

19 delegation headed by the same Professor Markovic who had been heading the

20 state delegation in 1998 and that a multi-ethnic delegation was sent to

21 France consisting of Serbs, Albanians, Muslims, Turks, Goran, Egyptian,

22 Roma. We know from the evidence that the conference in Rambouillet opened

23 on the 6th of February. It was scheduled for one week with a possibility

24 of extending it for a second week and ultimately it was extended for three

25 more days after that. So between the 6th and the 23rd of February, 1999.

Page 12363

1 The evidence is that Mr. Milutinovic was not a member of the

2 delegation, but he arrived in Paris at the end of the first week, on the

3 Thursday the 11th, according to Wolfgang Petritsch. At page 10848 of the

4 transcript, Mr. Milutinovic was in Paris, he was housed in Paris.

5 Ambassador Petritsch said he was informed that Mr. Milutinovic was an

6 informal point of contact who occasionally dropped by the castle and was

7 involved on a political level with the Contact Group foreign ministers.

8 Mr. Petritsch acknowledged that Mr. Milutinovic basically had the same

9 relationship to this delegation as he had to the Markovic delegation in

10 1998. We say he was a guarantor to the process. And what of the Serb

11 state delegation? What we know from the -- from Exhibit 1D93, the

12 conclusions of the National Assembly 4th of February, that it had a

13 limited mandate. It [Realtime transcript read in error "He"] was

14 empowered to negotiate a political framework of substantial autonomy and

15 self-governance in Kosovo and Metohija. It had no authorisations to

16 negotiate or accept implementation of a political agreement for the

17 presence of foreign troops.

18 I'm -- had it pointed out to me that the delegation was empowered

19 by the National Assembly.

20 Ambassador Petritsch testified that he was familiar with most

21 members of the state delegation at Rambouillet because many of them had

22 served on the 1998 state delegation. He said they were well-versed

23 experts, aware of the minute details of the 1998 process and they worked

24 constructively, and indeed by --

25 JUDGE BONOMY: The uncertainty, Mr. O'Sullivan, is about your

Page 12364

1 submission that he was, that's Mr. Milutinovic, was empowered to negotiate

2 a political framework of substantial autonomy and self-governance; is that

3 an accurate reflection of the submission you made?

4 MR. O'SULLIVAN: No, it's not and at line 13 I tried to correct

5 that. It should be the delegation was empowered, not Mr. Milutinovic,

6 the -- 1D --


8 MR. O'SULLIVAN: -- 93 empowered the delegation. Mr. Milutinovic

9 was not a member of that delegation.

10 We know that on the 16th of February, that's the Tuesday of the

11 second week, Serbian state delegation provided comprehensive and

12 constructive comments to the political framework. And you will recall

13 that only at this -- only the political framework was on the table during

14 this period of negotiations. P563 is a diplomatic correspondence from

15 Ambassador Petritsch to the foreign ministry in Austria. And also at

16 transcript 10855 he said, "The Serbian delegation was ready to accept the

17 political part of the agreement. It had been thoroughly negotiated and

18 approved by the Contact Group." That's on the 19th of February.

19 On the other hand, on the 18th of February, again, the Kosovo

20 delegation, according to Veton Surroi, a member of that delegation, wanted

21 to quit, had stopped working, because they disapproved of the latest draft

22 of the Rambouillet Agreement that was handed to them by the negotiators on

23 the 18th. 1D18, page 441-442, is a statement from the Kosovo delegation.

24 And there their biggest complaint is that they were insisting on a binding

25 referendum after three years and they complain that the preamble of the

Page 12365

1 then-amended Rambouillet Agreement expressly included recognition of the

2 sovereignty of the FRY.

3 When we came to the 20th of February, that's the second Saturday

4 which was supposed to be the last day of the two-week meeting, the foreign

5 minister -- Contact Group foreign ministers met each delegation.

6 Veton Surroi was in that meeting as part of the representatives of the

7 Albanian delegation, before the Contact Group, and Mr. Thaqi, the head of

8 that Albanian delegation, said that they rejected the political components

9 of the Rambouillet Agreement and they could not accept the agreement

10 without reference to a referendum, a referendum of independence after

11 three years. That same day the Serb delegation came before the foreign

12 ministers and that Serb delegation included Mr. Milutinovic. P2972 is the

13 Milosevic transcript of Mr. Petritsch, and at page 10874 he says that

14 Mr. Milutinovic told the first ministers of the Contact Group that the

15 Serbs basically agreed with the political components.

16 This led to a series of events which I wish to review with you

17 which show quite precisely the true nature of the negotiations and the

18 process at Rambouillet and certainly does not in any way lead to the

19 conclusion or the inference that the Serb side was obstructive, or

20 Mr. Milutinovic himself or anyone else there was obstructive in trying to

21 find a peaceful and lasting solution.

22 JUDGE BONOMY: Mr. O'Sullivan, where is it we see that

23 Mr. Milutinovic was a member of the delegation?

24 MR. O'SULLIVAN: No, he's not.

25 JUDGE BONOMY: Well, you've twice now I think said he was or --

Page 12366

1 either that or was presenting the delegation's position.

2 MR. O'SULLIVAN: Well, he was not -- he was not a member of the

3 delegation, but on the 20th -- I misspoke earlier when I said "he." It

4 should have been the delegation was empowered by the National Assembly

5 that's what I think --


7 MR. O'SULLIVAN: On the 20th, the Saturday --

8 JUDGE BONOMY: Just before you do that, hold on a second.

9 You said at 63, line 3, that he was a guarantor to the process and

10 one of the Serb state delegates.

11 MR. O'SULLIVAN: Well --

12 JUDGE BONOMY: And then what we know from Exhibit 1D93, the

13 conclusions of the National Assembly that it had a limited mandate and it,

14 rather than he, was empowered to negotiate a political framework but are

15 you saying that he was part of the delegation?

16 MR. O'SULLIVAN: No, he was not part --

17 JUDGE BONOMY: All right.

18 MR. O'SULLIVAN: -- of the delegation. He was -- he came the end

19 of that first week to Paris and Ambassador Petritsch told us that he

20 had -- that he was an informal point of contact.

21 JUDGE BONOMY: So what's his role when he goes before the Contact

22 Group to explain the Serb position?

23 MR. O'SULLIVAN: The Contact Group had summoned both sides

24 together to see whether or not they accepted the political framework they

25 had negotiated up to that point.

Page 12367

1 JUDGE BONOMY: I understand that, but what was his status in

2 presenting the Serb position?

3 MR. O'SULLIVAN: He, along with two or three other members of that

4 Serb delegation, came before the foreign ministers.

5 JUDGE BONOMY: Yeah. All right. Thank you.

6 MR. O'SULLIVAN: Now, following that meeting on the 20th of

7 February where the Serbian delegation had expressed their general

8 agreement with the political framework and the Albanian side had rejected

9 it, Veton Surroi told us that there were deep divisions within the

10 Albanian delegation that went from having Mr. Thaqi opposing the agreement

11 and working to stop it to having other members by the 22nd or 23rd of

12 February also opposed to the political components of the agreement. This

13 led to a meeting between Madeleine Albright and members of the Albanian

14 delegation on the 21st of February, including Mr. Surroi, at which meeting

15 Mr. Surroi suggested that perhaps Madeleine Albright could provide a side

16 letter to the Albanian delegation, offering the US interpretation of the

17 words "will of the people" which is in the final clause of the Rambouillet

18 Agreement. The request was to have Mrs. Albright confirm that the

19 term "will of the people" would be tested in a referendum three years

20 after the termination of the Rambouillet Agreement, a referendum to be

21 conducted by the people of Kosovo. That's 1D18, page 449.

22 Mr. Surroi and Mr. Petritsch confirmed that Mr. Surroi approached

23 Wolfgang Petritsch seeking a similar side letter from the EU.

24 Mr. Petritsch learned, as did Mr. Surroi, that the EU would not approve

25 such a letter, Russia was opposed to it, and certainly the FRY would be.

Page 12368

1 The evidence is that that letter was withdrawn, the draft letter prepared

2 by Mrs. Albright addressed to the Albanian delegation, which brought us to

3 the last day of the meetings in Rambouillet, the 23rd of February. And

4 there there's a series of events which we say exposes exactly what was

5 happening there.

6 On the morning of the 23rd of February, at 9.00 a.m., the

7 negotiators presented both delegations with what they call the final

8 version of the Rambouillet Agreement which included for the first time

9 chapters 2, 5, and 7 on implementation. Court exhibit IC126 is a table of

10 the Rambouillet agreements and it shows that these -- this table

11 corroborates the evidence showing that implementation chapters 2, 5, and 7

12 are tabled for the first time to the parties on the morning of the 23rd of

13 February. And the cover letter asks for a response by 1.00 p.m. that day.

14 1D98 is the -- a full copy of that agreement with a cover letter

15 signed by the three Contact Group negotiators: Ambassador Petritsch,

16 Hill, and Mayorski and the letter indicates that the Russian Federation

17 had not approved chapters 2 and chapter 7 of the implementation portion of

18 this newly tabled agreement, and Mr. Mayorski, Ambassador Mayorski makes

19 that express in his signature under which he says that he does not, or the

20 Russian Federation does not adopt 2 and 7.

21 There was still problems, however, by -- for getting support from

22 the Albanian side to agree to the agreement, the political side of the

23 agreement, that leads to 1D18, page 467, which is a letter from the

24 Albanian delegation to Madeleine Albright. It's a mirror image of the

25 letter that was rejected and vetoed by the EU, Russia and would not be

Page 12369

1 accepted by the FRY. We know the circumstances surrounding that.

2 Veton Surroi was in the room, the delegation room, the Albanian room,

3 where it was taking place. Ambassador Hill and his assistant Jim O'Brien

4 and other representatives were preventing Hashim Thaqi from seeing the

5 interpreter's computer on which the letter was being drafted. The letter

6 was signed by Veton Surroi.

7 Now, the letter is published in a book we have in evidence, 1D18,

8 by Professor Weller who was an advisor to the Albanian delegation. And

9 yet, when professor -- when Ambassador Petritsch testified, he was much

10 less than candid or truthful about this letter, in fact initially denied

11 that he knew about it. And then later he admits that he knows it. Now

12 the transcript page 10889 he says it was a transparent process, all

13 documents are tabled, there were no documents, agreements, side deals,

14 side letters that were not tabled. He only knew about the first Albright

15 letter which was withdrawn, he knows of no side agreements or side deals.

16 Ambassador Petritsch was being untruthful, Your Honours, because

17 when he was confronted with the letter from the Albanian delegation by

18 Mrs. Albright signed by Veton Surroi 1D18, page 467, he conceded that he

19 knew about the letter, that he knew about it after the meetings were

20 concluded.

21 At the same time, on the same day, the 23rd of February, 1D18,

22 466, there's a letter from the Serb delegation to the negotiators of the

23 Contact Group at 1600 hours, that's document number 34 in 1D18, page 466.

24 Ambassador Petritsch describes that as a constructive letter. The

25 delegation says it's prepared to discuss the scope and character of

Page 12370

1 international presence and that all elements of self government at the

2 time of the finding of the agreement have to be known and clearly defined.

3 The evidence further from Ambassador Petritsch is that there were

4 three letters submitted by the Serb delegation to the Contact Group

5 negotiators. And I refer you to the first letter which is 1D18, page 466,

6 it's document 31. And at the transcript 10932 that letter was reviewed

7 with Ambassador Petritsch and he says that he understood the position of

8 the Serb delegation, that there was general agreement to the political

9 framework, the areas requiring future negotiation on the political

10 framework were identified, that points needed refining. He acknowledged

11 that it was a legitimate position for a federal state to take in relation

12 to the political components and that more time was needed to discuss

13 implementation. And yet the common perception and the allegation by the

14 Prosecution is that the Serb side is to blame for the failure at

15 Rambouillet.

16 We know from Mr. Surroi and Mr. Petritsch that Madeleine Albright

17 had threatened that if the Albanian side sign and the Serbs don't, then

18 Serbia will be bombed. We know there's Russian disapproval for chapters 2

19 and 7, tabled at the 11th hour. We know that there's a side deal between

20 Mrs. Albright and the Albanians, contrary to what has been told publicly

21 or within the confines of that negotiating complex. The Serb letter is

22 constructive, willing to continue to discuss the scope and character of

23 international presence and to refine the political agreement. The public

24 declarations are that the Albanians have accepted the deal and the Serbs

25 have rejected it.

Page 12371

1 Now, we also know from witnesses like John Crosland, the British

2 attache in the FRY, that throughout 1998 there was open support for the

3 KLA, that there was support for a regime change in Belgrade, and that the

4 Rambouillet process proceeded on that basis. Now taken alone

5 Mr. Crosland's evidence may not mean that much but when seen in the light

6 of all the events, one can see exactly the way things proceeded and that

7 the Serb delegation is certainly not to blame for any failure at

8 Rambouillet.

9 And Mr. Milutinovic denounced that process. He, as well as

10 others, denounced the process, but denouncing this process in no way can

11 be said to be an example of any criminal intent or any criminal conduct.

12 He was just calling the situation as he saw it.

13 There's one other aspect, important aspect, arising out of the

14 evidence at Rambouillet through the evidence of Wolfgang Petritsch.

15 Mr. Petritsch claims that he was at a meeting with Mr. Milutinovic and

16 Ambassador Mayorski, and at this meeting Mr. Petritsch claims that

17 Mr. Milutinovic said that if Serbia's bombed there will be massacres in

18 Kosovo. Mr. Petritsch understood that to mean there would be massacres of

19 Albanian citizens -- Albanian civilians by Serbs. In our submission, this

20 is evidence which is incapable of belief and not entitled to any credence

21 under the law of Rule 98 bis.

22 To get right to the point, when asked by the Presiding Judge,

23 His Honour Lord Bonomy, whether he recalled Mr. Milutinovic actually

24 saying these words or whether he was rationalising it based on a

25 diplomatic correspondence, Ambassador Petritsch says he was rationalising

Page 12372

1 it. He says this must have been said because it was recorded in a

2 diplomatic dispatch. That dispatch is in evidence, it's P562, Austrian

3 diplomatic correspondence.

4 Now, Ambassador Petritsch saw this diplomatic correspondence for

5 the first time just prior to his testimony in this trial. On two

6 occasions at page 10883 he said it was drafted by his assistant

7 Jan Kickert, and that Jan Kickert was present during an OTP interview

8 conducted with Ambassador Petritsch in May 1999. We know that this

9 correspondence was reflecting the situation as at 6.00 a.m. on the 20th of

10 February, 1999. It was prepared overnight between the 19th and 20th of

11 February, 1999. We know that this correspondence passed through two sets

12 of hands and it was an encrypted e-mail sent from Paris to Belgrade to

13 Vienna.

14 Well, what do we know? Let's put this in context, shall we? The

15 OTP interview conducted in May and June 1999 is P2792.

16 Ambassador Petritsch claims he used his best efforts to give a detailed

17 and accurate account of events as he remembered them. He does not mention

18 Mr. Milutinovic saying if bombs fall there will be massacres in Serbia or

19 in Kosovo. He attributes that to a man named Stambuk. He claims he was

20 taken aback by this statement of Mr. Stambuk and it left a distinct

21 impression on him. When Ambassador Petritsch testified in the Milosevic

22 case, transcript Exhibit P2793, nothing is said about Mr. Milutinovic in

23 relation to bombing leading to massacres. He attributes this once again,

24 Mr. Petritsch does, to Mr. Stambuk.

25 If you look at the account of his testimony in Milosevic and his

Page 12373

1 account attributing this phrase to Mr. Milutinovic, they're virtually

2 identical. The context and the circumstances is virtually identical.

3 They're discussing, according to Mr. Petritsch, the necessity of

4 implementation, demilitarisation of the KLA, negotiations ending, and then

5 the comment about bombing leading to massacres.

6 Jan Kickert testified in this trial as well. Now, we've seen that

7 Ambassador Petritsch claims that Mr. Kickert wrote P562. Mr. Kickert

8 claims that Ambassador Petritsch must have added the paragraph or the

9 annotation regarding Mr. Milutinovic's alleged comment about bombing and

10 massacres. Of course Mr. Petritsch never offered such an explanation when

11 he testified. He was given every opportunity to say that he himself added

12 this passage and he didn't.

13 With Mr. Kickert, the circumstances surrounding the preparation of

14 P562 were reviewed, that's from pages 11253 to 11256. The Chamber will

15 see that it was a very hectic day, all through the day and all through the

16 night, and then at 6.00 in the morning, final touches were put on this

17 document and sent off. So they worked all night -- all day and all night

18 after midnight to prepare this document and Mr. Petritsch says that he

19 rationalises that Mr. Milutinovic must have said it because he has no

20 recollection of it and he bases that entirely on having seen this exhibit

21 for the first time just prior to his testimony here despite the fact of

22 being interviewed by the OTP months after Rambouillet, having testified in

23 Milosevic where he never attributes these words to Mr. Milutinovic. We

24 say that this evidence is not worthy of belief.

25 Now, I've been covering the acts and conduct and state of mind

Page 12374

1 chronologically of Mr. Milutinovic and we've covered the point up to the

2 Rambouillet-Paris process in March 1999. I now turn to the final period,

3 the one beginning on the 23rd of March, 1999.

4 I wish to review that evidence with you. I've already made

5 submissions in relation to the Supreme Defence Council and the Supreme

6 Command. We've seen that on the 23rd of March, P1738 are the amended

7 rules of the Supreme Defence Council, where there's an expanded quorum and

8 decisions are made by consensus. We also know that there's no evidence in

9 this case that the Supreme Defence Council met after the 23rd of March,

10 1999. And it's our submission that there's no evidence in this case that

11 Mr. Milutinovic was a member of a body known as the Supreme Command.

12 There is evidence, however, regarding a session of the

13 National Assembly of Serbia on March 23rd, 1999. At that Assembly,

14 Mr. Milutinovic, among others, addressed the Assembly. We have in

15 evidence and will review that, the conclusions and the minutes of the

16 National Assembly. We also have the evidence of Ratomir Tanic in

17 connection with this event.

18 Before turning to the National Assembly, I wish to say a few words

19 about Tanic, who we say also under Rule 98 bis jurisprudence is incapable

20 of -- his testimony is incapable of belief and it could not properly

21 sustain a conviction; it's not worthy of your belief. Let me highlight a

22 couple of examples. Mr. Tanic claims that he only testifies when the

23 information he provides to the Court is corroborated by two or three

24 independent sources. 1D27 is the Milosevic transcript, page 5025; 1D28 is

25 the Milosevic transcript, 5105-5106 and 5092; and he said this in our

Page 12375

1 trial at page 6497. Mr. Tanic was reprimanded by this Trial Chamber for

2 refusing to answer a question at 6460-6461. Tanic was evasive and

3 dishonest about the most basic things: His educational background, his

4 criminal record, his personal record as a member of a political party

5 where he claims he was an important member.

6 But what does he say about the National Assembly meeting on the

7 23rd of March? He claims two things. He claims that Mr. Milutinovic,

8 during his address to the National Assembly, tried to delude the Yugoslav

9 public by saying that NATO wanted to intervene in Yugoslavia under its own

10 flag. And the second thing he says is that draft conclusions of the

11 Assembly prepared by Mr. Vuk Draskovic, the deputy prime minister of the

12 FRY at the time, which had previously been agreed to by Mr. Milutinovic

13 according to Tanic, that these conclusions were modified in order to

14 mislead the public and the National Assembly.

15 Well, in evidence we have 1D32, which are the minutes of the

16 National Assembly and include the conclusions. They're agreed by

17 stipulation between the parties. I asked the Chamber to look at this

18 document, and you'll see that Tanic's claims are incorrect and incredulous

19 and not worthy of belief.

20 First, Mr. Milutinovic's speech. He spoke 12th out of 24

21 individuals that day. The main speaker was Ratko Markovic, the head of

22 the state delegation, who provided a report of the state delegation on the

23 talks in Rambouillet and Paris. And if you read his intervention, you'll

24 see that the report made by Mr. Markovic is entirely consistent with the

25 evidence in this case.

Page 12376

1 Mr. Milutinovic spoke at page 2931 of Exhibit 1D32. This is an

2 oral submission and I won't read it -- read the extract to you. It's

3 short. I ask you to do so. But what does Mr. Milutinovic refer to?

4 Well, he refers to the implementation chapters, 2, 5, and 7, of

5 Rambouillet; he refers to the insistence of a referendum after three years

6 by the Albanian side; and the insistence of foreign troops, the NATO

7 troops -- the insistence of foreign troops, NATO troops, in a sovereign

8 country.

9 Now, we know the Rambouillet agreement contemplated NATO troops.

10 It was not agreed to at Rambouillet by the Russian Federation and

11 certainly there was no UN mandate for foreign troops in Yugoslavia. And

12 what are the conclusions? Well, 1D32, the minutes, from pages 56 to 58,

13 set out the conclusions of the Assembly that day. The so-called Draskovic

14 proposal led by -- through Tanic has, in fact, three exhibit numbers.

15 I'll give you all three P710, P2482, P2483. I invite the Chamber to

16 review these conclusions, both the ones in the minutes and the ones that

17 are drafted by Mr. Draskovic. They're virtually identical. And in fact,

18 the conclusions contained in the minutes of the Serbian Assembly are more

19 far-reaching and conciliatory. And one more point about the minutes in

20 1D32, page 12, a man named Spasoje Krunic, a member of the Serbian Renewal

21 Party, that's Mr. Draskovic's [Realtime transcript read in error "^"]

22 party. He's on the commission which drafted the conclusions which were

23 actually adopted that day by the Serbian Assembly.

24 So there's nothing misleading, malevolent, or criminal about what

25 happened in the Assembly that day. There was an Assembly session. At

Page 12377

1 page 76, line 10, Mr. Krunic was a member of the Serbian Renewal Party,

2 that's Vuk Draskovic's party. And Mr. Krunic was a member of the

3 committee that drafted the conclusions adopted that day.

4 So there's nothing misleading about what occurred in the Assembly

5 that day, not Mr. Milutinovic's speech, not the Assembly conclusions.

6 Mr. Tanic has it wrong. Mr. Tanic also said in -- during his testimony

7 that Mr. Milutinovic supported the idea of going to war, that's page 6324

8 of the transcript. There's a bold assertion by Tanic that Milutinovic

9 supported the idea of going to war. There's nothing in his testimony or

10 there's no evidence aside this bald assertion in evidence to support that.

11 In fact, everything that we've reviewed today, Your Honour, points the

12 other way, that Mr. Milutinovic did what he could to avoid a war, to find

13 a peaceful solution, and to encourage others to do the same.

14 Tanic also testified that Mr. Milutinovic, in 1998, distorted

15 information going abroad. That's pages 6336, 6337. That somehow

16 Mr. Milutinovic was preventing peace. This is another fanciful assertion

17 by Mr. Tanic unsupported by any evidence. As we've seen, all the evidence

18 shows a completely different view. Mr. Milutinovic never spread any

19 distorted or any incorrect information abroad. Tanic also said that

20 Mr. Milutinovic was part of a private chain of command at 6372. I think

21 we can do away with that bit of evidence by the comment made the

22 Presiding Judge who found the account to be nothing more than something a

23 journalist could have written and deserves the same value from the Bench

24 as any piece of journalism.

25 Mr. Tanic also gave evidence about a cease-fire. 1D36 is the

Page 12378

1 joint statement of the FRY and Serbia on a cease-fire; it's agreed by way

2 of stipulation. Mr. Tanic gives four versions of these events, which I'll

3 describe in a second, and what we say is an incredulous explanation as to

4 why there are four different versions of the events. The cease-fire,

5 according to Mr. Tanic, was supposed to be implemented on Catholic Easter,

6 which was one week before Orthodox Easter. Indeed, the -- the evidence is

7 that the cease-fire was implemented between the two Easters.

8 Well, what's relevant here, we say, is the way in which Mr. Tanic

9 testified and the way he tries to implicate people in things. This is the

10 first version of his account which is P2480, his statement, paragraph

11 125. There Mr. Tanic says he called Mr. Milutinovic personally to discuss

12 the cease-fire. In a second version, in his supplemental information,

13 Tanic says he called Mr. Milutinovic and told Mr. Milutinovic that

14 Dusan Mihajlovic wanted to speak to him. Then there's a third version in

15 1D27, the Milosevic transcript, page 6465, there he said, Mr. Tanic says

16 he overheard Mr. Milutinovic and Mr. Mihajlovic on a speaker-phone. And

17 the fourth version that he gave in court is that Mr. Mihajlovic was using

18 a special phone to call Mr. Milutinovic in a secret command post. And how

19 does he explain the inconsistencies, the different versions? He says,

20 well, at page 6466, he says, "The gist is the same but it's true that it's

21 a bit confused because I do not have very precise recollection. Well, it

22 took us quite a while to find him. It was wartime, you know, and this is

23 why confusion created. I corrected that in my talks with the Prosecution

24 and the gist was the same that Milutinovic -- that we had not finished the

25 job. The gist of the conversation is the same. Of course, it is depicted

Page 12379

1 in a confused manner as to the circumstances. I do have this kind of

2 problem because many events happened and some of them bear emotionally on

3 me. In my statement, the gist has never changed. Circumstances are

4 described differently; this is of course due to my memory which works

5 under the burden of hundreds of events stored in there."

6 This is an incredulous fabrication. He back-pedals constantly

7 when he tries to explain things. He spends his whole time trying to

8 hoodwink people, Your Honour.

9 There's also evidence during the war given by Mr. Merovci and also

10 a 92 quater statement from Dr. -- the late Dr. Rugova. There are two

11 exhibits I wish to point out here, one is P416, that's a joint statement

12 signed by Mr. Milutinovic and Dr. Rugova in April 1999; and 1D60 is a

13 video -- is video footage of the statements given by Mr. Milutinovic and

14 the late Dr. Rugova, after that statement was signed.

15 Well, the whole context of this is that the authorities had

16 arranged for the safe transfer of Dr. Rugova, Mr. Merovci, and their

17 families to Rome during the war. They left the country in May 1999.

18 Mr. Merovci testified that his family was allowed to travel to Macedonia

19 in early April after meeting with Mr. Milosevic in Belgrade, phone lines

20 were reconnected in Pristina, they were allowed to phone abroad, they did

21 so. Dr. Rugova met with ambassadors, he met with clerics. And the upshot

22 is that the life of an important Albanian leader was saved and his family

23 was. He was released, allowed to travel abroad, out of harm's way. The

24 joint statement for P416 calls for an end to the NATO bombing and

25 resumption of negotiations, seeking a peaceful resolution and a political

Page 12380

1 agreement on Kosovo and Metohija. There can be no suggestion or inference

2 that Mr. Milutinovic was engaging in any kind of criminal conduct or

3 criminal intent in this regard.

4 Recently, the Prosecution has entered into evidence four documents

5 which I think bear some comment. They are P2842, P2844, P2843, and P2828.

6 These are letters. The first three deal with vital statistics and the

7 preparations for a census. P2842 is a two-page letter from

8 Vladan Kutlesic, the deputy prime minister of the FRY to the director of

9 the Republic Bureau of Statistics dated 6 October, 1998. A copy was sent

10 to Mr. Milutinovic's office. P24 -- 2844 is a letter from the Republican

11 Bureau of Statistics of the Republic of Serbia, dated 17 February 1999.

12 And 2843 is a report dated 12 January, stating that there's no conclusive

13 reliable information available about the ethnic population -- the ethnic

14 Albanian population in Kosovo and Metohija since the 1961 census.

15 Now, Your Honour, when you read through these -- this

16 correspondence, you'll also see that a census was planned between the 1st

17 and 15th of April, 1999, to get accurate numbers. Well, that was

18 pre-empted by the war. And when -- one fails to see how any of this is

19 even relevant to any sort of criminal intent or criminal conduct that when

20 a census is being organised to meet international standards, as these

21 documents suggest, and that in fact a census throughout Serbia, including

22 Kosovo, is being planned for the month of April 1999, one is left

23 pondering.

24 The fourth letter is P2828, and it's a two-page letter sent by the

25 president of the provincial board of the SPS in Kosovo and Metohija, the

Page 12381

1 copy sent to the Office of the President of the Republic of Serbia, on the

2 19th of June, 1998. It deals with the murder of a 68-year-old Serbian man

3 and with terrorists bringing weapons into Albania -- weapons from Albania.

4 The letter states that the Serbs are slowly losing faith in their

5 state and its organs and they're scared. At best, this is a letter from a

6 local politician who's expressing his concerns about dealing with

7 terrorism. There is no logical inference or any connection to be made

8 between this letter and any allegations or any charges, any wrong-doing,

9 by Mr. Milutinovic.

10 I move to one other area, to two pieces of legislation. 1D136 is

11 a law on rescinding of the laws by which the temporary measures for social

12 protection of the self-management rights and socially owned property were

13 imposed. Now, this law from 1991, Article 1, amends the law enacted in

14 1989 on temporary measures for protection of self-management rights and

15 protection of socially owned property. We've made submissions in this

16 case that the laws enacted during the time of the SFRY are irrelevant to

17 this case because that state ceased to exist. Firm, this 1D136 amends

18 that law, abolishes that law. The law was to -- cease to exist by 31

19 December 1991.

20 Now, for the sake of completeness you also have to refer to 1D138,

21 and 1D138 extends the time for the abolishment of the 1989 provisions, it

22 extends it to 31 December 1992. So by the end of 1992, the 1999 [sic]

23 provisions are abolished. By the end of 1992, the 1989 provisions are

24 abolished.

25 And lastly, 1D37 is the law on cessation of work of the public

Page 12382

1 legal office of self-management which, again, the public legal officers

2 ceased to function under the 1989 law. Now, I hasten to add that the

3 Chamber knows that during this period in the early 1990s Mr. Milutinovic

4 was the SFRY ambassador to Greece. He had no political affiliations, no

5 evidence of any political affiliation, and he's a high-ranking civil

6 servant, public servant, ambassador to Greece at this time.

7 I turn now to my concluding comments, submissions.

8 Mr. Milutinovic under 7(1) is charged with ordering. The actus reus of

9 ordering is: "The accused as a person in a position of authority

10 instructed another person to commit an offence."

11 There is no evidence to this and no inference can be drawn from

12 the evidence in this case in relation to Mr. Milutinovic. He's charged

13 with planning under 7(1). The actus reus of planning is: "The accused

14 alone -- the accused alone or together with others designed the criminal

15 conduct constituting the crimes charged. The planning was a factor

16 substantially contributing to the perpetration of the crimes."

17 We say there's no evidence to support that allegation and no

18 inference from the evidence can be drawn in relation to Mr. Milutinovic.

19 He's also charged with instigating. The actus reus of instigating

20 is: "The accused prompted another person to commit the offence. The

21 instigation was a factor substantially contributing to the conduct of the

22 other persons committing the crime."

23 No evidence, no inference can be drawn from the evidence in

24 relation to Mr. Milutinovic.

25 The mens rea for these three offences is quite similar that: "The

Page 12383

1 accused acted with direct intent or with the awareness of the substantial

2 likelihood that a crime would be committed."

3 No evidence pointing at all to Mr. Milutinovic in this regard for

4 any of the underlying alleged offences.

5 Mr. Milutinovic is charged with aiding and abetting. The actus

6 reus of aiding and abetting is: "The accused gave practical assistance,

7 encouragement, or moral support which had a substantial effect on the

8 perpetration of the crime." The mens rea is that: "The accused knew his

9 acts would assist the commission of the crime by the perpetrator or he was

10 aware of the substantial likelihood that his acts would assist the

11 commission of the crime by the perpetrator."

12 There's no evidence and no inference can be drawn from the

13 evidence in relation to the acts, conduct, and state of mind of

14 Mr. Milutinovic.

15 He's charged with committing as a co-perpetrator in a JCE.

16 Categories 1 and 3 under our jurisprudence. The law states that there

17 must be -- that there are three base requirements for a conviction of JCE.

18 First, a plurality of persons is required; second, the existence of a

19 common purpose, which amounts to or involves the commission of a crime

20 provided for in the statute; and third, the participation of the accused

21 in the common purpose is required.

22 There's no evidence of a common purpose, we say. There's no

23 evidence of Mr. Milutinovic being in a plurality of persons who as part of

24 a common purpose. They alleged that the common purpose is the

25 expulsion -- the permanent expulsion of the Albanian population from

Page 12384

1 Kosovo and Metohija. There's no evidence to support that.

2 The mens rea of the first category, the basic joint criminal

3 enterprise, "it must be shown that the accused or other participants in

4 the JCE intended that the crime at issue be committed." The Prosecution

5 can point to no evidence suggesting that on the part of Mr. Milutinovic.

6 The mens rea of the third category of the extended category of JCE speaks

7 of alleged crimes outside the common purpose, the extended foreseeability

8 of it. We say there's no evidence in this case that the Prosecution can

9 point to in relation to this second or third category of JCE.

10 And what of superior authority under Article 7(3)? There's no

11 evidence of any superior-subordinate relationship, de jure or de facto,

12 between Mr. Milutinovic and any of the alleged perpetrators of base

13 crimes. There's no knowledge, there's no evidence that he had knowledge

14 or had reason to know that crimes were about to be committed or that they

15 had been committed, and as for acquiescence, there's no evidence that

16 Mr. Milutinovic had any means at his disposal, even if he were a superior,

17 to prevent or punish. I started these submissions by saying under 98 bis

18 a motion will succeed if there's no evidence supporting a particular

19 count, or if the only relevant evidence is so incapable of belief that it

20 could not properly sustain a conviction, even when the evidence is taken

21 at its highest for the Prosecution.

22 Your Honour, there's no evidence of criminal conduct or criminal

23 intent, no exercise of de jure or de facto power or influence, no exercise

24 of authority or any connection to the alleged base crimes.

25 Mr. Milutinovic asks you to acquit him of all five counts. Those

Page 12385

1 are my submissions.

2 JUDGE BONOMY: Thank you very much, Mr. O'Sullivan.

3 Mr. Fila.

4 MR. FILA: [Interpretation] Your Honour, first of all, I support

5 what has been said by my esteemed colleague, Mr. O'Sullivan, as regards

6 the facts and law. The Defence of Nikola Sainovic will attempt to show

7 why it considers that the Prosecutor has failed to prove his case against

8 Nikola Sainovic and why -- I do apologise. There is a part in the factual

9 submissions I will not agree with in what Mr. O'Sullivan has said. So I

10 agree with what he has said pertaining to the law rather than the facts.

11 The Defence of Nikola Sainovic will attempt to draw attention to

12 those parts of the indictment against Nikola Sainovic which it feels have

13 not been proved even if it were accepted without any doubts.

14 THE INTERPRETER: Could counsel please slow down.

15 MR. FILA: [Interpretation] The indictment against --

16 JUDGE BONOMY: Mr. Fila, the interpreter is asking you to --

17 MR. FILA: Slow down.

18 JUDGE BONOMY: -- Slow down. It is -- this is a difficult one to

19 judge, but I think you're going to have to speak more slowly than you

20 would normally do.

21 MR. FILA: [Interpretation] The indictment against Mr. Sainovic

22 contains a large number of allegations concerning his alleged role in the

23 events of 1998 and 1999. The Prosecution has tried to prove some of these

24 allegations, but with reference to a considerable number of allegations

25 the Prosecution has failed to offer a single piece of evidence, a single

Page 12386

1 word in the testimony of a witness, or a document which would at least

2 indirectly confirm what is stated in the indictment about Sainovic's role.

3 In the indictment, it is stated that Sainovic was the

4 representative of Slobodan Milosevic for Kosovo. Not a single witness has

5 confirmed this, nor has said anything about this. Of course, there are no

6 documents to prove this. The only thing we have heard so far, as

7 mentioned by Mr. O'Sullivan, is that he was the -- the fact that the

8 second vice-president or vice-premier of the principal government is

9 mentioned as Milosevic's advisor for Kosovo. That he was a Special Envoy

10 for Kosovo, that is.

11 It is further stated in the indictment that throughout the

12 time-period relevant for the indictment there was a Joint Command for

13 Kosovo and Metohija and at the head of this command was Nikola Sainovic.

14 More than a hundred witnesses have testified here and not a single one

15 mentioned that in 1999 Nikola Sainovic was at the head of the Joint

16 Command for Kosovo. Also, moreover, several thousand documents have been

17 admitted into evidence, but not in a single one of these does it say that

18 at the time relevant for the indictment Nikola Sainovic was at the head of

19 the Joint Command. The indictment covers events starting on the 1st of

20 January, 1999, and, as has been said, in this time-period there is no

21 evidence to show that Sainovic was at the head of anything that might be

22 called a Joint Command.

23 Let me emphasise that there is also no evidence to show that

24 Sainovic was a member of an organ that allegedly existed and waged the

25 operations in Kosovo and Metohija, which might be called Joint Command.

Page 12387

1 So he was neither its president nor commander nor member; nobody ever said

2 anything like this. What has been shown by the evidence adduced, as

3 observed by Your Honours, is that the circumstances, structures, state

4 organs, officials, their powers and activities differed substantially in

5 1998, as compared to 1999.

6 In 1999 there was a NATO intervention and an imminent threat of

7 war was declared in the state, followed by a state of war. These two

8 facts imply a fundamental difference as regards the role and

9 responsibilities of the state organs in their joint efforts to defend the

10 country from the NATO air-strikes. Many witnesses, especially - and I

11 insist on this - witnesses who are members of international organisations

12 and bodies active in Kosovo in 1998, have described Mr. Sainovic's role.

13 They have mostly done this by talking about their impressions which were

14 often formed based an hearsay, newspaper reports, or solely on the fact

15 that Mr. Sainovic often spoke to them or negotiated with them.

16 Sainovic was often the only person they had contacts with. He was

17 also - and we do not deny this - a high-ranking official in the federal

18 government, one of the five vice-presidents, and therefore, the highest

19 highest-ranking person in the FRY with whom they had contacts. That is

20 why some of them arrived at the erroneous conclusion about the importance

21 of Sainovic's role in Kosovo. They did this without having any insight

22 into the way in which the policy of Serbia and Yugoslavia was formulated,

23 the way processes of information took place between the competent organs,

24 what the mutual relationships between these organs were, what the formal

25 and what the de facto competences were on particular protagonists on the

Page 12388

1 Serbian and Yugoslav political scene.

2 These foreigners saw Sainovic and thought that he was an important

3 person; however, they had no way of knowing how important he really was

4 and they didn't know this. What I'm saying about foreign representatives

5 refers only to the year 1998. As regards 1999, especially the period of

6 the 24th of March, 1999, these witnesses were not in Kosovo. They weren't

7 physically there, so they had no knowledge and they were not able to have

8 any knowledge about events in Kosovo. Therefore, they could not know

9 anything about any role Mr. Sainovic might have had.

10 Even if there was some form of coordination between the VJ, the

11 Army of Yugoslavia, and the MUP in the course of 1999, I maintain that

12 this coordination did not include any civilians, politicians, or state

13 officials who would be able to command VJ or MUP units or their joint

14 operations. Therefore, in 1999 Nikola Sainovic did not have any role

15 which might be in any way linked to coordination of the Army of

16 Yugoslavia.

17 Moreover, all the witnesses who testified before this Chamber

18 spoke about the intact chains of command, both in the army units and among

19 the members of the MUP, both in 1998 and in 1999. I am not listing their

20 names because there was not a single one who spoke to the contrary.

21 Whether there was any kind of Joint Command in the context of some of the

22 documents admitted into evidence which refer to 1999, whether or not there

23 was anything like this, one must bear in mind that these are documents

24 which were in fact documents issued by the VJ, the Army of Yugoslavia.

25 This is evident from their content and the fact that these documents refer

Page 12389

1 solely and exclusively to the use of army units. There is not a single

2 document dating from 1999 drawn up in the MUP bearing the letterhead of

3 some kind of Joint Command. There is no such document dated 1998 either,

4 and it's not there because it doesn't, in fact, exist.

5 Also, there is not a single document emanating from a civilian

6 body which might be said to be any kind of briefing or report or anything

7 like that emanating from a Joint Command. Also, in no document is there

8 any mention of any kind of civilians interfering or attempting to

9 influence the intact chains of command we have mentioned, nor is there any

10 trace of this in military or police reports relating to the relevant

11 time-period.

12 It is also important to mention that there is not a single report,

13 letter, or briefing before you of any commander belonging to any kind of

14 Joint Command in 1999. There is no headquarters, no commander of any such

15 Joint Command. The chain of command was intact. It is very important to

16 bear in mind that Nikola Sainovic was the deputy prime minister of the

17 federal government, which did, in fact, have certain powers over the Army

18 of Yugoslavia, both in 1998 and 1999. But no competencies whatsoever in

19 relation to the MUP of Serbia or the MUP of Montenegro because the police

20 was fully under the jurisdiction of each of the republics.

21 In Exhibit P1468, which was admitted into evidence after six

22 months of justified, in my view, refusal and which refers to the period

23 from July to October 1998, which, let me point out, is before Mr. Sainovic

24 was appointed president of the federal commission for cooperation with the

25 OSCE, there is not a single note or entry in that document ending with an

Page 12390

1 order. If this was the Joint Command, we never see the words "the command

2 orders the following." There is no reference to a previous order, as

3 would be normal. If one day you issue an order, the next day you want to

4 follow-up and see what happened. If there was a command, it would have to

5 issue orders, it would have to have a commander, a log-book, a

6 headquarters. And there would be at least one document emanating from

7 that command dated 1999, bearing the letterhead of that Joint Command.

8 But there is no such document because no such document ever existed.

9 On the contrary, from these notes mentioned in Exhibit P1468, one

10 can see that there was an exchange of information in order to get a better

11 overview of the situation.

12 There is something that is not sufficiently clear. I said that in

13 1998 there was not a single document with the same content as the 14 or 15

14 documents dated 1999, saying "I order that ..."

15 As I said, there were meetings that were held for the purposes of

16 exchanging information in order to gain a better overview of the

17 situation. One might refer to this as coordination, as was done by

18 Mr. Sainovic in his interview which I refer you to. That is coordination

19 between politics, the army, and the police. In 1998 there was no state of

20 war. The federal government had no powers over the work of the police,

21 either in Serbia or in Montenegro. Take a look at the minutes of the

22 Supreme Defence Council. Some have been quoted here. You will see that

23 there are no members of the police present. Why? Because the federal

24 state had no competences over the police. They would have had to be the

25 interior ministers of Serbia and Montenegro, but they are not there. And

Page 12391

1 the generals of the police but they're not there. The Government of

2 Yugoslavia had only a logistical role but not a command role.

3 In the time-period in which a state of war was declared, the

4 Government of the FRY had no role in command and control as relates to the

5 defence forces, and therefore its vice-president had neither actual nor

6 formal duties in relation to military operations. In a state of war, it

7 is the president of the FRY and the military structures with their intact

8 chain of command who have these powers.

9 The Prosecutor said that Nikola Sainovic was the representative of

10 Slobodan Milosevic for Kosovo because diplomats and representatives of the

11 international community were often told to go and talk to Sainovic about

12 Kosovo. It's true that many of them did, but it's also true that they did

13 this because the federal government established a commission for

14 cooperation with the OSCE mission, and Sainovic was appointed president of

15 that commission by that government. Before this, Sainovic was the deputy

16 prime minister in the federal government with special duties in

17 international relations; first of all, the implementation of Dayton and

18 then Kosovo. There is no evidence, nor has anybody ever said, nor was it

19 possible for anyone to say that Sainovic was some kind of personal

20 representative of Milosevic, as if we were talking about a company, a

21 commercial enterprise, or a terrorist organisation. Sainovic was doing

22 this because it was his job, and he was one of five vice-presidents, as

23 was Zoran Lilic who did not come to testify here. And many witnesses have

24 confirmed this. I'm tired of repeating all their names.

25 It is not correct to say that Sainovic had an active role in

Page 12392

1 negotiations on forming the OSCE mission, or more precisely, that his role

2 differed from the roles of dozens of other officials who were doing that

3 job and had similar roles. Many of them were mentioned, Stambuk and

4 others. Something else is true, however, and that is that Sainovic in the

5 implementation of that agreement tried to do everything in his power to

6 have the agreement complied with, to replace the conflict with political

7 negotiations with a mediation of the international community in order to

8 achieve peace in a multi-ethnic Kosovo.

9 THE INTERPRETER: Could counsel please slow down.

10 MR. FILA: [Interpretation] The Prosecutor says that Sainovic acted

11 as a liaison between Milosevic and the leader of the Kosovo Albanians.

12 What is correct, however, is that Sainovic did nothing but convey

13 messages.

14 Let us recall the testimony of Adnan Merovci. When asked by this

15 Defence about his understanding of the role of the accused, whether

16 Sainovic was a middleman who simply transmitted messages or whether he was

17 a decision-maker, Witness Merovci replied that in his view Sainovic was a

18 person, I quote, "who was acting as a middleman who simply conveyed the

19 positions of high-ranking officials." This was stated on the 17th of

20 January, 2007, on page 8535, lines 18 to 19.

21 Nikola Sainovic is charged with participating directly or

22 indirectly in a joint criminal enterprise, with the aim of changing the

23 ethnic balance in Kosovo. But I wonder, Your Honours, what the

24 contribution was of Nikola Sainovic to the aims of this alleged joint

25 criminal enterprise. In order for an enterprise to exist there has to be

Page 12393

1 a plan, and the plan has to be implemented.

2 In these ten months I have heard nothing, and neither have you,

3 that might indicate that such a plan actually existed, that such a goal

4 existed; and least of all, even if something like that did exist, that

5 Sainovic was part of it. We have also not heard that if there was no

6 explicit plan, there was something that might be referred to as a plan,

7 the existence of which might be inferred from all the circumstances of

8 this case. Something, for example, like a tacit agreement or deal

9 amounting to an agreement.

10 If there was a plan, let us now surmise that, in any form

11 whatsoever that I just referred to, the question is: What act did

12 Nikola Sainovic commit in this period of -- starting with the 24th of

13 March, 1999, that would contribute to the implementation of this joint

14 plan if any such plan did, in fact, exist. What have we heard from the

15 witnesses? What have we read in the documents that the Prosecution has

16 presented to us about such acts -- any such acts or activities by Sainovic

17 in the period after the 24th of March, 1999, that would affect the events

18 or would in any other way contribute to the implementation of this

19 hypothetical criminal plan or design, whether within the framework of this

20 design or going even beyond such a framework.

21 Let us assume for a moment that somebody says something in a

22 meeting and this might be interpreted as the instigation to a prohibited

23 activity. Does that mean, according to the Prosecution or the Judges,

24 that any persons present at the meeting are to be held responsible as

25 members of the JCE even if they had not heard those remarks? The

Page 12394

1 Prosecution -- the Defence considers that responsibility has to contain

2 the personal attitude, personal view, acts or omissions, and that

3 everything else is mere interpretation that goes way beyond the

4 jurisprudence of this Tribunal and international humanitarian law in

5 general.

6 This Tribunal must not put aside the obligation of the Prosecution

7 to prove the kind and the degree of individual responsibility, and in the

8 case of Nikola Sainovic the Prosecution has failed to do that. This

9 Tribunal must not allow for the lower limit of the joint criminal

10 enterprise to be set at a level that would equate individual

11 responsibility with collective guilt. Because it is contrary to the

12 elementary moral and philosophical norms that modern criminal law is based

13 on. The Prosecution has failed to prove the existence of any vertical

14 chain of command, a relationship of subordination and superiority between

15 Sainovic on one hand and the VJ and MUP on the other in the period

16 relevant for the indictment, and even indeed in the period that precedes

17 the indictment, 1998 in other words.

18 When we talk about the joint criminal enterprise, we have to

19 answer the question whether there was intent to commit a crime. The

20 Defence contends that the Prosecution has failed to prove that Sainovic

21 had the intent to commit any criminal offence, war crime in this case, and

22 indeed that there was an intent that Sainovic shared with the other

23 participants of the joint criminal enterprise for the acts alleged in the

24 indictment. It is particularly interesting that the Prosecutor claims

25 that the joint criminal enterprise came into being in October 1998 at the

Page 12395

1 latest and that it continued -- that its existence continued throughout

2 this period relevant for the indictment. This is the period that goes

3 beyond the so-called Joint Command minutes for 1998, this is, as my

4 colleague Mr. O'Sullivan quoted, when it was actually specified or stated

5 that hostilities had ceased and so on and that the Joint Command should

6 continue in existence. This is the period in which various agreements are

7 reached, Holbrooke-Milosevic, Geremek-Jovanovic, Clark-Perisic and so on.

8 This is the time when Sainovic becomes the chairman of the Federal

9 Commission for Cooperation with the OSCE. Is this the joint criminal

10 enterprise? Is this when it started? To say that about Mr. Sainovic is

11 absurd.

12 Your Honours will remember that a number of witnesses gave

13 evidence to the fact that Sainovic did everything to find a peaceful and

14 political solution for the crisis, particularly at the time when the

15 Prosecutor alleges that there was this joint criminal enterprise and when

16 this criminal plan was in the making. Witness Michael Phillips says, and

17 I quote: "Sainovic was sincere about trying to find a strategy for the

18 co-existence for the Serbian and Albanian population to live together."

19 This is 19 March 2007, page -- at page 11887, lines 9 through 11.

20 Witness Byrnes explicitly stated before this Chamber that Sainovic

21 had told him all he could in the negotiations, in the ongoing

22 negotiations. At the time he gave striking testimony about

23 Nikola Sainovic's real intentions. He said, and I quote: "I believed in

24 that," his intentions, "I believed everything he told me." 16th of April,

25 2007, at page 12191, lines 17 through 18.

Page 12396

1 Furthermore, when the Defence asked whether Sainovic considered

2 that the situation in Kosovo should have been solved by political means,

3 Witness Byrnes said that it was his clear impression from the

4 conversations with the accused that, I quote: "He, as a practical

5 politician, tried to find a mutually acceptable political solution for the

6 problem and that he was working in that direction." 16th of April, 2007,

7 at page 12188, lines 15 through 19.

8 When the Defence asked Ambassador Petritsch whether he agreed with

9 the conclusion that a high degree of consensus had been achieved between

10 him and Mr. Sainovic in relation to efforts to solve the crisis, in other

11 words, that it should be achieved through political and peaceful means, he

12 said yes and he said that he, Sainovic, hoped that it would be possible --

13 I quote: "That it would be possible to achieve an agreement by peaceful

14 means on the basis of the Kosovo Verification Mission and instruments that

15 were in existence at the time." That's 2nd of March, 2007, at page 10947,

16 lines 19 through 23.

17 How is it possible that somebody who sincerely is trying to

18 contribute to find a peaceful solution for the crisis, as those witnesses

19 indicate, at the same time shares the goals of a joint criminal enterprise

20 that should be implemented through a widespread and systematic campaign of

21 terror and violence, deportations, murder, forcible transfer of the

22 population, and persecution.

23 Well, isn't it clear that Sainovic was the man who trying until

24 the very last moment at Rambouillet to take even the smallest chance for a

25 negotiated solution for the conflict. Sainovic tried to negotiate even

Page 12397

1 with the KLA representatives. In his evidence, Witness Byrnes noted that

2 Sainovic launched this initiative - and I quote - "to extend a hand to the

3 KLA leadership in an effort to find some kind of a solution." And that

4 Sainovic saw such a meeting as something that could be used as a basis

5 for - and I quote - "broader political consequences." That's 16th of

6 April, 2007, at 12189, lines 1 through 16.

7 Sainovic is trying to do all he can to find a solution at

8 Rambouillet to prevent the worst from happening.

9 As I've already noted, Witness Byrnes explicitly said that he had

10 believed in what Sainovic had said, that Sainovic had been doing all he

11 could to prevent further escalation of the conflict in Kosovo. That's on

12 16th of April, 2007, at 12191, lines 15 through 18.

13 Before this Chamber, Witness Petritsch commended Sainovic for his

14 cooperative attitude, saying that meetings with Sainovic were always - and

15 I quote - "amicable meetings based on mutual respect." Witness Petritsch

16 stressed in particular that he met with Sainovic at Rambouillet frequently

17 and that Sainovic was - I quote - "of use" to him and that he had the

18 impression that -- that he had the impression that - I quote - "Sainovic

19 listened and tried to provide answers to the demands made by the

20 international community and he concluded that those meetings were

21 conducted in a very pleasant atmosphere and that this is something that

22 sticks in his memory, 2nd of March, 2007, at 10945, lines 14 through 24.

23 Generally speaking, Ambassador Petritsch stressed in his evidence

24 that Sainovic was a man of peace, I quote, and that somebody else

25 prevented the peaceful solution for which -- which both Sainovic and head

Page 12398

1 of the delegation Ratko Markovic advocated. Those other factors that

2 Sainovic had no control over, according to Ambassador Petritsch, made it

3 impossible to achieve an agreement, and Ambassador Petritsch gave evidence

4 about the last night of the negotiations in Rambouillet and further

5 developments in Paris where Sainovic kept silent, as he said. And I say

6 again that when Ambassador Petritsch went to the last round of

7 negotiations with Milosevic, Sainovic was not there because he fell out of

8 grace because of his views. And now we have this other person appearing,

9 Milosevic's Special Envoy. So who can say then that Sainovic shares the

10 objective to change the ethnic balance in Kosovo by violent means and at

11 the same time advocating the general exchange of prisoners?

12 In his evidence, Ambassador Petritsch stresses that Sainovic

13 worked -- made efforts in goodwill to free the -- to achieve the release

14 of KLA prisoners, saying that he was sure, and I quote, "Mr. Sainovic

15 proposed to Mr. Milosevic to make a positive decision in this issue." And

16 in his view this was a constructive move on the part of Mr. Sainovic. 2nd

17 March, 2007, at 10946, lines 20 through 23.

18 Again, when the Defence asked Witness Byrnes whether he agreed

19 that Sainovic saw the release of the prisoners as an opportunity to calm

20 the situation and to pave the way to a real peaceful solution,

21 Witness Byrnes agreed with this suggestion, adding that Sainovic saw this

22 in such a way that he considered that an exchange of prisoners could

23 perhaps lead to something greater; 16th of April, 2007, at page 12189,

24 lines 17 through 22.

25 Generally speaking, the Defence would like to ask the

Page 12399

1 Trial Chamber to look in detail at the evidence provided by those three

2 witnesses in their entirety as they relate to Mr. Sainovic. Such

3 high-ranking persons such as Ambassador Petritsch and people of that rank

4 could not say things that are not accurate. Sainovic also advocated the

5 return of the population to their homes with the increase of the

6 international presence as we could see in the example of Malisevo. In his

7 evidence before this Trial Chamber, Witness Phillips underlined or

8 stressed that Mr. Sainovic was of great assistance in the efforts to solve

9 the Malisevo problem, 19th March, 2007, at page 11877, lines 2 and 3.

10 The Defence would also like to refer to evidence by Jan Kickert,

11 providing some kind of supplemental clarification for the evidence

12 provided by Ambassador Petritsch, who also described what Nikola Sainovic

13 was doing. Let me remind you that according to the Prosecution, this

14 witness was supposed to prove Sainovic's criminal role by dint of helping

15 to provide electricity in the building where the representatives of the

16 international community were -- had their premises, when they failed to

17 pay their electricity bills. That's 7th of March, 2007, page 11190, and

18 then further 11191, but we will, I hope, forgive him for this crime.

19 In this context, it is of special interest to note whether the

20 accused really knew whether a criminal offence alleged in the indictment

21 was committed. This was to be a natural and foreseeable consequence of a

22 JCE. From the context of the evidence presented, particularly the

23 evidence that relates to an overview of criminal offences committed on the

24 ground, it is quite clear that the local commanders failed to report all

25 the -- any crimes even to their immediate superiors. How could then

Page 12400

1 Nikola Sainovic know about such crimes and how could he be expected to

2 know that the possible outcome of his acts would be criminal?

3 For instance, General Vasiljevic in his testimony states that he

4 visited the security organs of the Yugoslav Army in Kosovo and that he

5 concluded at the security administration of the Yugoslav Army that there

6 were no omissions in the work of the military police, that there were no

7 omissions in the work of the military police and the security organs in

8 the Pristina Corps, and that they were, in fact, to be commended for their

9 results. 24th of January, 2007, at page 8977, line 4, to page 8978, line

10 5.

11 So if the organs that were duty-bound to detect the perpetrators

12 of criminal offences worked very well, as Vasiljevic testified, and if

13 their superior officers had no objections to their work and they did not

14 have such objections, how could Sainovic be expected to know or to have to

15 know about any crimes whose perpetrators had not been -- had not been

16 covered in any reports or had not been criminally prosecuted for their

17 crimes? As far as the police is concerned, at meetings that Sainovic

18 participated in, if you look at the minutes you will see that in any

19 debate he, in fact, advocated efforts to prevent crimes and if any crimes

20 were committed that the perpetrator should be punished. And this is the

21 most that he as a politician could do. Let me repeat that the federal

22 government had no jurisdiction over the police because this was something

23 that was in the jurisdiction of the republic.

24 Let me remind you of Exhibit P1996, this is the minutes of the MUP

25 headquarters dated 7th of May, 1999, and P1989, the minutes of the MUP

Page 12401

1 headquarters dated 4th of April, 1998. This is what I'm talking about.

2 The Trial Chamber has to determine -- oh, I have to apologise. It's 1999,

3 the 4th of April, 1999.

4 The Trial Chamber has to establish the basic elements of the

5 criminal intent of the accused in the context of the joint criminal

6 enterprise. What can the Trial Chamber establish regarding Sainovic's

7 intent except to accept what witnesses Byrnes, Phillips, and Petritsch say

8 in the response to the questions the Defence asked them in order to

9 establish Sainovic's true intent. In a nutshell, it was Sainovic's intent

10 to have negotiations replace conflict and that a peaceful multi-ethnic

11 Kosovo should be achieved through political agreement.

12 In the indictment in paragraph 24 the Prosecution alleges that

13 Sainovic commanded the forces of the Federal Republic of Yugoslavia and

14 Serbia via various organs, including the Joint Command with him at its

15 head. This is an arbitrary claim by the Prosecutor who composed this

16 indictment and it fails to meet the fundamental criteria for the

17 evaluation of evidence at this stage of the proceedings, as no proof

18 whatsoever has been adduced to support it. The standard we are referring

19 to is the standard in Rule 98 bis.

20 That Sainovic commanded the forces of Serbia and Yugoslavia in

21 1999 was never mentioned by anyone, nor can it be found written down

22 anywhere, nor can such a conclusion be made from anything before us. In

23 paragraphs 46(a) and (b) and in paragraph 47(b) of the indictment, it says

24 that Sainovic, as the deputy prime minister of the Government of the FRY

25 in charge of Kosovo, implemented the powers given to him by

Page 12402

1 Slobodan Milosevic over the Army of Yugoslavia with regard to Kosovo,

2 including authority over the VJ and the MUP and civilian bodies.

3 Quite simply, nobody ever said anything like this, nor did anyone

4 ever write anything like this, nor was anything like this possible because

5 one must bear in mind that the FRY was a well-organised state with its

6 organs and institutions. The Defence now asks the Chamber to put aside

7 these issues to save me the trouble of trying to prove how absurd this is.

8 In paragraphs 46(c), (f), and (i), and in paragraph 47(a) of the

9 indictment, it says that Sainovic was the head of the Joint Command and

10 that through that command he commanded control, directed, and otherwise

11 exercised effective control over forces of the FRY and Serbia.

12 Let me repeat. In 1999 there are no indicia that Sainovic had any

13 such role. Most of the Prosecution case relating to Sainovic's role is an

14 attempt to use analogy in an impermissible manner in order to equate 1998

15 and 1999. Some evidence which has been erroneously interpreted and which

16 refers to 1998 and the role of certain civilian persons who were sent to

17 Kosovo has been used in an attempt to show that there was a uniform manner

18 of acting in the time-period before the indictment and the time-period to

19 which the indictment refers, and analogy is impermissible in legal

20 proceedings.

21 Whatever existed in 1998 in the period from July to October need

22 not have existed, necessarily, in 1999. Quite simply, a Joint Command

23 never existed, either in 1998 or in 1999 with Nikola Sainovic as its

24 commander or member.

25 With reference to 1999, there is mention of documents bearing the

Page 12403

1 letterhead "Joint Command," but they do not show that there are any

2 civilians connected with that. And this includes Sainovic. Even

3 General Vasiljevic stated in his testimony that Sainovic attended a

4 meeting and that somebody else told him that this was a meeting of the

5 Joint Command. But when referring to Sainovic's role at that meeting he

6 says that he simply does not know what it was.

7 When asked by the Defence whether he allows for the possibility

8 that, at the meeting in Pristina, Sainovic represented the federal

9 government, Vasiljevic answered that he did not exclude such a possibility

10 and he said, I quote, "You will reach your own conclusions about this."

11 He didn't say who he was addressing. And this was the 22nd of January,

12 2007, page 8837, line 2.

13 The Defence wishes to draw attention to the fact that part of

14 Vasiljevic's notebook hasn't been admitted into evidence although in his

15 interview to the OTP Vasiljevic explicitly said he did not take any notes

16 at that meeting. In that meeting it says that this was actually a meeting

17 in the command of the Pristina Corps. So the words "Joint Command" do not

18 appear in the notebook either.

19 With relation to paragraphs 46(d) and (e) of the indictment, in

20 the evidence adduced there is no mention of the fact that at the time the

21 indictment refers to, Sainovic participated in any kind of planning,

22 coordination, or ordering of operations or planning, instigating, or

23 ordering the concealment of crimes.

24 In paragraph 46(g), Sainovic is linked up with volunteers. The

25 federal government and its vice -- deputy prime minister have no

Page 12404

1 competences concerning volunteers, nor has any kind of role played by

2 Sainovic been shown in connection with volunteers. Of special interest is

3 paragraph 46(h), as well as paragraphs 47(f), (g), (h), (i), and (m),

4 where it is claimed that Sainovic instigated and legitimised crimes

5 perpetrated against Kosovo Albanians by failing to report and investigate

6 crimes or by failing to punish or discipline members of the forces of the

7 FRY and Serbia.

8 Nowhere is it explained what kind of competencies Sainovic had to

9 conduct investigations, what competencies did Sainovic have to punish

10 anyone? This is pure speculation in the indictment and it remains

11 speculation after we have heard all the evidence that the Prosecutor has

12 decided to present in his case, because we have not heard a single word in

13 this courtroom about Sainovic being able or allowed to carry out any kind

14 of investigation, especially to punish anyone or discipline anyone. He

15 had no such powers, and this is best seen in his discussions which have

16 already been mentioned, where he recommends the prevention of crimes and

17 the punishment of perpetrators. He said this as a politician, as a deputy

18 prime minister of the federal government, and that was the most he was

19 able to do. And this is actually what he did.

20 I have finished one part. It seems to be time for a break, but

21 let me mention on page 98 to 2 [as interpreted], 97 line 24, the name of

22 Bugarcic is missing, this is the person who replaced Sainovic at the

23 negotiations. I will have 20 minutes, not more.

24 JUDGE BONOMY: Mr. Fila, could you look at 103, line 3, where you

25 say that there's a part of Vasiljevic's notebook has not been admitted

Page 12405

1 into evidence or has been?

2 MR. FILA: [Interpretation] Yes, yes. It has been admitted but

3 only in part, not the whole notebook.

4 JUDGE BONOMY: Thank you.

5 MR. FILA: [Interpretation] It says "Pristina Corps" in there.

6 [Trial Chamber and registrar confer]

7 JUDGE BONOMY: We shall adjourn now and we will resume at 2.15

8 tomorrow afternoon.

9 --- Whereupon the hearing adjourned at 3.31 p.m.,

10 to be reconvened on Wednesday, the 2nd day of

11 May, 2007, at 2.15 p.m.