1 Wednesday, 2 May 2007
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.17 p.m.
5 JUDGE BONOMY: Please continue, Mr. Fila.
6 MR. FILA: [Interpretation] Your Honour, before we continue today
7 I would like to ask you, Your Honours, if we could correct two or three
8 errors that occurred in the transcript yesterday which I think are quite
9 important for the understanding of the Defence case.
10 At 12395, 20 to 21, it says that Witness Byrnes stated explicitly
11 before this Trial Chamber that Sainovic had told him all he could in the
12 negotiations, but what I actually did say Witness Byrnes stated
13 explicitly before this Trial Chamber that Sainovic had told him that he
14 had done all he could in the negotiating -- in the ongoing negotiations.
15 So not "said" but "did."
16 And at line 16, page 12046, when I talked about Exhibit P2862, it
17 says -- the sentence begins with: "At this meeting," and what it
18 actually should read is: "In this notebook ...," we're talking about
19 General Vasiljevic's notebook. So this is all I had to say in this
21 Now, with your permission, I would like to continue --
22 JUDGE BONOMY: Mr. Fila, we are grateful to you for reviewing the
23 transcript in a matter as important as this, and that's a very helpful
24 clarification you have given us. Please continue now.
25 MR. FILA: [Interpretation] Thank you. I will continue now. This
1 will be a little bit out of the context, but let me continue. What I
2 said yesterday, that Sainovic had done all he could, we could illustrate
3 this with an example when Judge Chowhan asked Witness Phillips regarding
4 Sainovic's powers whether during the meetings, Sainovic had ever given
5 any instructions or reprimanded General Loncar or General Lukic regarding
6 protests sent by the Kosovo Verification Mission.
7 The witness replied, I quote: "Instructions were given sometimes
8 if he needed an answer, but there were never any reprimands." 19th March
9 2007, at page 11856, line 18 through 25, and page 11857, line 1 through
11 Let us say something at this point about paragraph 46(j). The
12 Prosecutor alleges here that Sainovic expressed his view that a better
13 balance of Serb and Albanian demographic levels should be achieved in
14 Kosovo. The Prosecutor probably expected General Klaus Naumann to say
15 something about this, but General Klaus Naumann didn't say anything about
17 Furthermore, when the Defence asked him whether he remembered who
18 had said at one of the meetings that Yugoslavia would have problems
19 because of the Albanian birth-rate, General Naumann responded, I quote:
20 "As far as I can remember, I don't know who exactly said that." 14th of
21 December, 2006, at page 8374, lines 24 and 25.
22 On the same occasion, General Naumann said that on the basis of
23 intelligence available to NATO, the coordination between the military and
24 the police was done in Nis and Belgrade. That's at page 8367, lines 20
25 through 23. This claim was confirmed by Colonel Crosland when the
1 Defence asked the question at page 9870. It is quite easy to draw the
2 conclusion from this that the coordination issues can have nothing to do
3 with Sainovic, and as you can see we are talking about NATO intelligence.
4 In paragraphs 47(c) -- (k), and 48 of the indictment, it is
5 alleged that Sainovic exercised command authority and/or effective
6 control over the units of the Yugoslav Army and MUP. It is also alleged
7 that he had de facto authority over the highest-ranking officials in the
8 Yugoslav Army and MUP.
9 In paragraph 47(k) of the indictment and paragraph 401 of the
10 Prosecution pre-trial brief, it is alleged that Sainovic had the power
11 over the local authorities in Kosovo and over the interim Executive
12 Council. So he had all the power he could in his hands, and this is
13 completely untrue. There is nothing in the record to show that this was
14 so, even in the interviews given to the Prosecution in this case.
15 And let us use General Vasiljevic's evidence to prove the --
16 quite the opposite. That's the only witness who testified about the
17 state of war period, when the state of war was in force. At page 8827,
18 lines 8 to 20, Vasiljevic recounts a conversation at Slobodan Milosevic's
19 in May 1999, when a discussion went on in order to establish the exact
20 situation in Kosovo, and that to this end a supervisor should be sent
21 there, either an individual or a group of people, and it is quite clear
22 from Vasiljevic -- from what Vasiljevic said that Sainovic was not the
23 supervisor in question, which can lead us to a conclusion that Sainovic
24 had no powers that the Prosecutor alleges he had, because if it had been
25 otherwise why would then a supervisor be needed in Kosovo?
1 As regards paragraph 49 of the indictment, this is the mens rea,
2 the requisite mens rea for the liability under Articles 7(1) and 7(3) of
3 the ICTY's Tribunal Statute. The Defence has already presented facts
4 that bring into doubt the existence of the factors that might be the
5 foundation of Nikola Sainovic's mens rea in relation to the alleged
6 crimes; crimes that either happened or are alleged to have happened.
7 The Prosecution also mentions alleged crimes from 1998. What
8 crimes are these? Who has proven and in what case that there were crimes
9 in 1998 that Sainovic was supposed to be notified of? What crimes was
10 Sainovic notified of as a member of several FRY delegations charged with
11 finding facts in Kosovo in 1998, and how, in what way? In order for us
12 to be able to conclude reliably that crimes did happen.
13 In relation to this paragraph, we have to stress that there is
14 the difference between the events and players in 1998 and in 1999. The
15 Prosecution keeps overlooking this difference. Prosecution witnesses do
16 not, in fact, support the existence of the requisite mens rea of
17 Nikola Sainovic for a liability under Article 7(1) and 7(3). Yet,
18 Prosecution witnesses do provide us with elements for the determination
19 of Nikola Sainovic's mens rea in 1998 and in the first few months of
21 These witnesses give a very detailed and direct account of
22 Nikola Sainovic's mens rea, but their description has nothing to do with
23 what the Prosecution tried to paint in documents made before the evidence
24 was actually adduced. So what I'm talking about is the indictment and
25 the pre-trial brief. Thus, Ambassador Wolfgang Petritsch said that
1 Sainovic was cooperative in his attitude towards international
2 negotiators, and that this is how he remembered him. 2nd March 2007, at
3 page 10945, lines 14 through 24.
4 Witness Michael Phillips testified that, I quote: "Sainovic was
5 sincere about trying to find some kind of a strategy for the co-existence
6 of the Serb and Albanian population." That was on 19th of March, 2007,
7 at page 11887, lines 9 through 11.
8 Finally, Witness Shaun Byrnes fully supported the conclusion that
9 Mr. Sainovic was cooperative at meetings with him, and that he did not
10 engage in propaganda and was not prone to making any vehement speeches of
11 any kind. That's 16th of April, 2007, at page 12188, lines 6 through 9.
12 The Defence requests the Trial Chamber respectfully to find in
13 relation to all these subparagraphs in paragraph 46, that's (a) through
14 (j), or at least to some parts of this paragraph, to find that the
15 Defence does not need to adduce any evidence to show that they are
16 unsupported. The Defence also respectfully requests the Trial Chamber to
17 find that all the paragraphs -- subparagraphs in paragraphs 47, 48, and
18 49, or at least major parts of these paragraphs, that the Defence does
19 not have to adduce any evidence to show that they are unsupported.
20 In some of the allegations the Prosecution made in the pre-trial
21 brief, before the pre-trial phase, that the JCE hails back to times
22 before the month of October 1998. It is alleged, for instance, that in
23 June 1998, the political, military, and security elite of the
24 Federal Republic of Yugoslavia and Serbia was divided into two camps:
25 One camp advocating a political solution, and the second one - and
1 Nikola Sainovic allegedly sided with them - advocated a military
2 solution. There is no evidence of that in the record.
3 In the same vein, it is alleged by the Prosecution that Sainovic
4 said that the balance between Serbs and Albanians in Kosovo must be
5 achieved, expressing his concern about the fact that the birth-rate among
6 Albanians was higher than the birth-rate among Serbs. There is no
7 evidence about that in the record. And as I already noted, Klaus Naumann
8 testified otherwise.
9 Of particular interest is the argument that Sainovic took part in
10 obstructing negotiations with the Kosovo Albanians, and that he
11 undermined the efforts to achieve a peaceful settlement for the Kosovo
12 crisis through negotiations. Ambassador Petritsch and Mr. Byrnes say
13 that Sainovic did all he could in order to achieve the exchange of
14 prisoners. Byrnes says that the issue of the exchange of prisoners was
15 of particular importance for him as the head of the American KDOM, and
16 that the awareness of the importance of this exchange was something that
17 he shared with Sainovic. He even remembers that Sainovic considered that
18 a successful exchange should be a foundation for further efforts to
19 stabilise the situation, as has already been said.
20 It is also alleged that Sainovic directly obstructed and
21 undermined those negotiations. Let us recall what Ambassador Petritsch
22 and Mr. Byrnes said about Sainovic's role in Rambouillet. Not only did
23 Sainovic not obstruct the negotiations, but Prosecution witnesses
24 describe Sainovic as a sincere and committed negotiator who firmly
25 believes in a political solution that would be acceptable to both
1 parties. All those things that the Prosecutor states or alleges about
2 efforts to obstruct the investigations and conceal the crimes in the
3 documents drafted before the trial simply have nothing to do in any of
4 their elements with what Nikola Sainovic did or the role he played. No
5 evidence adduced before this Trial Chamber indicates that by his acts or
6 omissions Sainovic contributed to the concealment of the crimes that had
7 been committed and the impunity for those crimes.
8 Nikola Sainovic's role in the events in 1998 and 1999, the way
9 that the Prosecutor tried to paint it, is completely erroneous.
10 Nikola Sainovic was the deputy prime minister in the federal government.
11 The events in Kosovo found him as the deputy prime minister charged with
12 foreign policy and international relations. At that time, the
13 deterioration of the overall situation in Kosovo required all the state
14 organs to step-up their activities within their constitutional and legal
15 powers in order to try to find a settlement for the crisis that
16 threatened to destabilise the whole country and the region. And such
17 activities needed to be carried out in the spheres of defence, security,
18 foreign policy, education, health care, and other -- in other spheres.
19 The defence of the country, including the command and control
20 over the VJ, was within the remit of the Supreme Defence Council. The
21 internal affairs, education, health care, local self government, and
22 other activities were within the remit of the organs and institutions of
23 the Republic of Serbia.
24 In 1998, the federal government had full authority over the --
25 overrunning the foreign policy of the country. The deterioration of the
1 situation in Kosovo required the federal government to step-up its
2 activity in foreign affairs. In March 1998, the OSCE decided to
3 strengthen their observation teams from the missions accredited in
4 Belgrade in order to be able to establish what the situation was in
5 Kosovo. That's Exhibit 1D18 at page 289.
6 After the -- after the agreement achieved between
7 President Milosevic and President Yeltsin on the 16th of June, 1998,
8 guarantying unimpeded access to international observers to the entire
9 territory - that's Exhibit 1D18, page 289 - the number of international
10 representatives in Kosovo grew exponentially. The international presence
11 of this kind required an increased activity of the federal government in
12 Kosovo in terms of foreign policy. This is how this decision was made to
13 dispatch Deputy Prime Minister Sainovic to Kosovo as the deputy prime
14 minister in charge of international affairs and -- international
15 relations and foreign affairs.
16 After political consultations, Federal Prime Minister Momir
17 Bulatovic concludes that Nikola Sainovic should on behalf of the federal
18 government be involved directly in Kosovo in the sphere of foreign
19 affairs bearing in mind two facts: A, Nikola Sainovic's duties within
20 the government; and B, the powers and the apparatus of the federal
21 government in existence in the province.
22 Within the framework of the activities of the federal government
23 in Kosovo, Sainovic was involved in activities in foreign policy,
24 including contacts with foreign diplomatic representatives and
25 international organisations that had flocked to Kosovo in 1998 in large
2 In June 1998, or to be more specific on the 10th of June, 1998,
3 at a session of the SPS, the socialist party of Serbia, the ruling party
4 headed by Slobodan Milosevic, their main board, this is Prosecution
5 Exhibit P1012, and in order to step-up the activities in Kosovo itself, a
6 decision was made to establish a team composed of prominent members of
7 the SPS Main Board to go to Pristina and to assist in the implementation
8 of the activities of the state organs geared to stabilise the situation
9 in the province.
10 This team comprised Zoran Andjelkovic, the -- a minister in the
11 Republic of Serbia government; Dusko Matkovic, the envoy of the republic
12 and a prominent businessman; and it was headed by Milomir Minic, the
13 president of the Chamber of citizens of the FRY Assembly.
14 This then debunks the myth called by the Prosecutor Joint
15 Command. Representatives of the federal government and representatives
16 of the ruling party were sent to Kosovo in order to assist in stabilising
17 the situation in the region, each within his own sphere of competence.
18 The government of the Republic of Serbia in the course of 1998 sent a
19 large number of representatives from various ministries to intensify and
20 coordinate the activities falling under their portfolios in Kosovo
22 When the verification mission of the OSCE arrived in Kosovo and
23 Metohija, the federal government established a commission for cooperation
24 with the mission. Nikola Sainovic was appointed by the
25 federal government as the president of that commission, and that is
1 Defence Exhibit 2D8. Witness -- Prosecution Witness Dusan Loncar also
2 testified to this.
3 The role of the commission was to assist and harmonise the
4 activities of the federal government and the various ministries in
5 implementing the agreement with the OSCE. The commission worked in
6 compliance with the rules of procedure of the federal government which
7 regulated the founding and functioning of ad hoc working bodies, and this
8 can be concluded on the basis of this Defence exhibit.
9 Nikola Sainovic never belonged to Milosevic's inner circle or, as
10 the Prosecutor terms it, shadow cabinet.
11 Moreover, in the relevant time-period, Sainovic was bereft of any
12 important role in the ruling party in Serbia at the time. Although at
13 the congress of the SPS in 1996, he was elected vice-president of that
14 party; in 1997, he was dismissed from that post, and that was the
15 situation in the ensuing years. We had prepared an exhibit to show
16 Zoran Lilic to prove this; however, we will have to adduce it later on at
17 a later stage of the proceedings.
18 Any other interpretation of the role and place of Sainovic is at
19 odds with all the evidence presented so far and also at odds with the
21 Let me now come to my conclusion. The Trial Chamber knows that
22 the Defence of Sainovic has always done its best to expedite the
23 proceedings and make them more efficient. Therefore, on this occasion
24 also, Sainovic's Defence wishes to be efficient and innovative.
25 Therefore, we move that the Trial Chamber, under Rule 98 bis,
1 issue a decision stating that the Prosecution has failed to prove the
2 following contentions and that the Sainovic Defence does not have to
3 adduce any evidence to disprove them.
4 First, that Nikola Sainovic was the commander of the
5 Joint Command for Kosovo at the relevant time-period; two, that
6 Nikola Sainovic and other civilians and politicians were members of the
7 Joint Command in the course of 1999, if such a body existed at all;
8 three, that Nikola Sainovic had real or formal powers to carry out
9 investigations and to punish the perpetrators of crimes; four, that
10 Nikola Sainovic had the authority and ability to control and command
11 units of the army and police in 1999.
12 Most of the Defence case will be devoted to proving these
13 submissions. The trial would be greatly expedited and made much more
14 efficient should the Trial Chamber establish that these contentions have
15 not been proved by the Prosecution or that at least some of them have not
16 been proved.
17 The indictment against Sainovic also contains a so-called factual
18 context. This contains a number of allegations which are supposed to
19 represent the general context of the events, and in the view of the
20 Defence, they have remained unproved. This pertains especially to the
21 connection between the accused Sainovic with what is stated there.
22 For example, in paragraph 88 of the indictment, there is mention
23 of discrimination against Kosovo Albanians in education, in interior
24 affairs, in the economy, in social policy. No evidence has been adduced
25 by the Prosecution to show any kind of connection or role played by
1 Sainovic in these processes.
2 For this reason, the Defence asks or moves that the Chamber
3 establish that there is no nexus between the processes described in
4 paragraph 88 of the indictment and the accused Sainovic. This would save
5 a great deal of time in the presentation of the Sainovic Defence case
6 because should this not occur, the Defence will have to deal with all
7 these issues, including education, health care, and other issues.
8 Finally, the Prosecutor should answer the following question: If
9 everything is the way the Defence says, why was one of the five deputy
10 prime ministers separated out and accused in this case? The answer to
11 that is simple: There are -- there were numerous meetings and numerous
12 activities on the international level in which Nikola Sainovic
13 participated, from the implementation of the Dayton Agreement to the
14 Kosovo crisis.
15 In the testimony of all the witnesses who have been heard here,
16 it follows that Sainovic dealt with political issues, that he advocated a
17 political solution to the crisis in Kosovo, that he advocated
18 co-existence in Kosovo, and that he did not hesitate to meet even
19 representatives of the KLA, or rather, he did not hesitate to express the
20 desire to meet representatives of the KLA, only in order to achieve this
22 In Rambouillet, Sainovic together with Ratko Markovic managed to
23 achieve an agreement about the political part of the agreement.
24 Everything Sainovic did was to work on political issues, those he
25 was tasked with. And everything he did was simply his patriotic duty as
1 a politician who was committed to finding a political solution to the
2 crisis. Sainovic's activity and commitment to his job made him prominent
3 enough for some malicious people to think that the key of the Kosovo
4 enigma was to a large extent in his hands.
5 The Defence wonders whether Sainovic who, as all the witnesses,
6 foreign diplomats and others, have said, worked for peace, advocated a
7 multi-ethnic Kosovo, accepted the political agreement in Rambouillet, and
8 for all these reasons was marginalised in the negotiations in Paris and
9 no longer participated in negotiations at Milosevic's, as
10 Ambassador Petritsch testifies, should now be found guilty of serious
11 crimes because of all these things.
12 I wish to refer to a Latin saying which was the basis for the
13 presentation of evidence in Roman times: "Tetis unus, tetis nullus."
14 This means it is not enough to have one witness in order to establish
15 something; that one witness equals no witnesses. The Romans were
16 referring, of course, to eye-witnesses, to first-hand evidence. The
17 Prosecution has brought forward witnesses with only hearsay, second-hand
18 knowledge or even fourth-hand knowledge, as in the case of Tanic. If the
19 Romans said that one eye-witness equals zero witnesses, then these
20 witnesses amount to four zeros, depending on how far removed they are
21 from the evidence.
22 The Defence wishes to say -- to raise another point in relation
23 to witnesses. This process will end with some kind of judgement which
24 will not deal only with the criminal aspects of the case. This is a
25 historical proceeding because inevitably it also deals with political
1 issues, such as the negotiations in Rambouillet, the negotiations
2 preceding Rambouillet, the reasons for the air-strikes against a
3 sovereign country without the approval of the United Nations - and this
4 is the United Nations Tribunal - and after we all leave this place, this
5 judgement will be studied for a long time to come.
6 In order to reach such a decision, much more should have been
7 done by the Prosecution than has been done. I'm personally satisfied
8 that I had the honour to have as my legal opponents Mr. Hannis,
9 Mr. Stamp, and Mr. Marcussen, and it was even -- an even greater honour
10 to meet the more charming and beautiful part of their team, but - and
11 there is always a but - the selection of witnesses and documents for this
12 historical proceeding was, in my view, not up to the mark.
13 For the Tribunal to hand down such a historical decision without
14 ever having all this work brought into question, I expected to see at
15 least an attempt to call as witnesses, for example, Generals
16 Momcilo Perisic, Aca Dimitrijevic, Geza Farkas from the Army of
17 Yugoslavia, then at least one general from the collegium of
18 General Ojdanic and most especially a military analyst. Then from the
19 MUP of Serbia, Jovica Stanisic, Frenki Simatovic, Obrad Stevanovic,
20 Dragan Ilic, and most importantly a police analyst. From among the
21 politicians, Milo Djukanovic, who is now a businessman in Podgorica, but
22 who was once one of the three members of the Supreme Defence Council.
23 One of them is deceased, another one is sitting right behind me, while
24 the third is engaged in business, and his testimony would have been very
25 valuable, not only with reference to the VSO but also in -- with
1 reference to meetings with Ambassadors Walker and so on.
2 Momir Bulatovic, who I hope to call; Zivadin Jovanovic, the
3 Minister of Foreign Affairs of the FRY. Zivadin Jovanovic, the Minister
4 of Foreign Affairs of the FRY, whom I will also attempt to call;
5 Vladan Kutlesic, the special envoy of Slobodan Milosevic for Kosovo; and
6 Deputy Prime Minister, whom I cannot call and don't want to call,
7 Ratko Markovic, the Deputy Prime Minister of the Serbian government, the
8 author of the Serbian constitution, and the head of the delegation in
9 Rambouillet and also in Kosovo in negotiations with Rugova;
10 Bojan Bugarcic, Milosevic's advisor for foreign policy who negotiated
11 with Petritsch after Rambouillet, and an expert for constitutional issues
12 of the FRY who would testify to the relation between the federal state
13 and the member republics.
14 And finally, witnesses from abroad, primarily
15 Mr. Christopher Hill and Ambassador Boris Mayorski, who, together with
16 Ambassador Petritsch, were the three negotiators in Rambouillet;
17 Ambassador then Geremek; Ambassador Keller; Bo Pelinas and others. It is
18 still not impossible to do this, applying Rule 98 of the Rules of
19 Procedure and Evidence.
20 Crime base witnesses have a limited value because they are only
21 victims. Of course, they have the right to our compassion, our
22 understanding, but that's as far as they go. Second-hand testimony,
23 where national legislation is accepted as a necessary evil if -- are
24 accepted --
25 THE INTERPRETER: Interpreter's correction.
1 MR. FILA: [Interpretation] National legislations accept hearsay
2 testimony mainly as a necessary evil in cases where there are no
3 eye-witnesses, no first-hand witnesses, but this Defence wishes to show
4 that there are such witnesses but that insufficient efforts were made or
5 there was not the will to call them here.
6 Had the witnesses I have enumerated been called, this Tribunal
7 would have had credible witnesses and would have been able to hand down a
8 truly historical judgement. I say this with regret, not because I have
9 any malicious intentions.
10 Finally, I wish to thank you for your time and attention, and it
11 is time for me to put forward my final proposal. Looking at the evidence
12 presented against Nikola Sainovic as a whole, the Defence feels that it
13 has not been proved that he is guilty under any of the five counts of the
14 indictment, and therefore the Defence moves that the Trial Chamber hand
15 down an acquittal for Sainovic in accordance with Rule 98 bis, applying
16 the principle of in dubio pro reo, which is one of the fundamental
17 principles of law.
18 Thank you very much, Your Honours.
19 JUDGE CHOWHAN: I wanted to clarify one thing. You've said that
20 the -- you made a comparison between crime base witnesses and those who
21 were victims. Now, can you kindly elaborate on that? I mean, crime base
22 witnesses and witnesses you thought were ...
23 MR. FILA: [Interpretation] No, no. In my view, it's all the
24 same, but they cannot be useful for the Trial Chamber to determine the
25 broader truth, aside from what happened to them and their kin. So this
1 is why I say that their evidentiary value is limited, because they always
2 testify about one single event, no matter how horrible it is, but what
3 you need in order to see the broader truth, you have to see the whole
4 range of events, what was happening in the world at that time and who
5 were the real players who brought all this about.
6 And that is why we could perhaps understand finally why a country
7 is brought in a situation where it is about to lose one of its
8 constituent parts, which is what we are facing now. So this is the
9 difference that I'm talking about. I'm talking about crime base
10 witnesses. The only thing that is at issue here is whether this witness
11 is telling the truth or not, but it is not useful for the broader
12 picture. I hope that now I've explained this to you.
13 JUDGE CHOWHAN: [Microphone not activated].
14 THE INTERPRETER: Microphone, please.
15 JUDGE CHOWHAN: Of course, there is a duty on the Defence in that
16 respect to point out where things have been omitted and where truth have
17 been suppressed and to complete the picture, if that is possible, if
18 something has been oppressed, and we expect that you would be able to
19 assist us in that direction, but you haven't pointed out anything. Maybe
20 this is not the stage maybe, at 98.
21 Thank you.
22 MR. FILA: [Interpretation] Well, yes, we're not at this stage
24 [Trial Chamber confers]
25 JUDGE BONOMY: Mr. Fila, part of that discussion just now was
1 about the possibility that there may be some contradiction between your
2 acceptance of what Mr. O'Sullivan has said on the law, on the test for
3 98 bis, and your reference latterly to the question of proof beyond
4 reasonable doubt.
5 My own view was that what you were saying was that the quality of
6 this evidence -- not so much the quality, but the nature of some of the
7 evidence being hearsay evidence rather than eye-witness evidence, being
8 from a limited number of people when there were more available, was such
9 that it was not capable of entitling the Chamber to make a finding of
10 guilt. Is that what you were saying about the various -- in your latter
11 submissions about the omissions to lead certain evidence by the
13 MR. FILA: [Interpretation] Well, I would not like to move beyond
14 the framework of 98 bis, and that is the reason why I didn't go that far.
15 And the reason why I made this criticism is because the evidence was
16 simply not up to the mark at this trial, and I noticed some lack of
17 willingness as, for instance, on the part of the US government to place
18 at our disposal some documents when, for instance, they refused to
19 provide documents indicating where there are -- air-strikes actually
20 were, and I tried to obtain this evidence. I even tried to do so in
21 collaboration with the Prosecution, but we failed.
22 And that is why I wanted to have these people that I listed here
23 because the weight of your judgement would be that much greater because
24 of that. Because the main criticism levied at this Tribunal in the world
25 is because people are saying, Well, Tom said this to Bill, Bill said this
1 to Jim, and this is then admitted as evidence. This is the criticism
2 that is levied. And I think that simply the quantity of evidence is
3 insufficient. This is what I said in the pre-trial stage, and I didn't
4 really change my opinion. This is the thing that I wanted to note. And
5 the hearsay evidence that was adduced is insufficient for this
6 Trial Chamber to find the -- that there is enough evidence against the
7 accused, even hearsay evidence.
8 JUDGE BONOMY: Thank you very much.
9 MR. FILA: [Interpretation] So I'm now trying -- I've now tried to
10 expand a little bit.
11 JUDGE BONOMY: No. The position is clearer now. Thank you.
12 Mr. Sepenuk.
13 MR. SEPENUK: Thank you, Your Honour.
14 And may it please the Court, it's my privilege today, together
15 with Mr. Visnjic, to represent General Ojdanic in support of his motion
16 for a judgement of acquittal. General Ojdanic personally addressed you
17 at the beginning of the trial and told you that he never participated in
18 any joint criminal enterprise to expel Albanians from Kosovo, and that he
19 took all reasonable and necessary steps to prevent and punish crimes in
20 Kosovo. As I stand here before you some ten months later, we
21 respectfully submit that the evidence has shown that what General Ojdanic
22 told you was true.
23 I have a duty at this point in the case to resist the advocate's
24 temptation to construe and argue the evidence in a light most favourable
25 to General Ojdanic. As a matter of fact, my duty is to the contrary, and
1 I recognise that. I have a duty at this point, under 98 bis, to construe
2 the evidence in the light most favourable to the Prosecution, and I
3 recognise, of course, that a Trial Chamber can uphold a Rule 98 bis
4 motion only if it is entitled to conclude that no reasonable trier of
5 fact could find the evidence sufficient to sustain a conviction beyond a
6 reasonable doubt.
7 And that, indeed, is our submission to you today, that no
8 reasonable trier of fact could find General Ojdanic guilty beyond a
9 reasonable doubt on this record.
10 I'm going to spend most of my time allotment discussing the
11 evidence from the date that General Ojdanic became chief of the army's
12 General Staff in late November 1998. But I think it important to first
13 discuss an event that took place some three months before on August 27th,
14 1998, and that is the briefing that General Ojdanic gave on that day to
15 military attaches in Belgrade, a meeting attended by
16 Colonel John Crosland.
17 And before getting to that meeting, I want to briefly recall for
18 the Trial Chamber the evidence which showed during various times in 1998
19 that the MUP, acting alone, was not always able to adequately deal with
20 KLA acts and provocations.
21 One example of that is in Podujevo, which I will discuss shortly.
22 But the plain fact is that as early as July 1998, General Perisic, then
23 the army's Chief of Staff, recognising the military necessity, issued a
24 directive in which he stated, and I quote: "Through its presence and by
25 carrying out training in the entire territory of Kosovo and Metohija, the
1 army has had a repelling effect with regard to the Siptar Albanian
2 terrorist forces and it has offered direct assistance to the forces of
3 the MUP of the Republic of Serbia." That's 4D137, page 2.
4 In that same directive of 28 July 1998, General Perisic further
5 stated that the Yugoslav Army: "Has intensified the security for
6 military facilities and units in Kosovo and Metohija, and it ensured a
7 regular supply flow to the Yugoslav Army units for the execution of their
8 tasks." That's again 4D137 at page 2.
9 These statements of General Perisic in his 28 July 1998 directive
10 were simply echoed by General Ojdanic as the Deputy Chief of Staff when
11 he made his comments on 27 August 1998 to the military attaches in
12 Belgrade at a meeting attended by, among others, Colonel Crosland.
13 In his report of 28 August 1998, Colonel Crosland reported as
14 follows, and this is 3D512, he said: "Ojdanic outlined four tasks of VJ
15 and explained VJ wider deployment in Kosovo was in order to protect lines
16 of communications which the MUP could not do -- could not do."
17 He went on to say: "These routes had been and were now subject
18 to guerilla-type attacks, and this task was therefore difficult to
20 In addition to protecting lines of communication, General Ojdanic
21 mentioned three other VJ tasks: To maintain border security; to protect
22 VJ installations; and to protect VJ units, both in barracks and in the
24 The Trial Chamber will recall that Colonel Crosland agreed that
25 the four main tasks of the VJ announced by General Ojdanic at the
1 briefing made imminently good military sense. Citing General Ojdanic's
2 statement at the briefing conference that force would be met with force,
3 Colonel Crosland agreed that the VJ-MUP could, of course, use appropriate
4 but not disproportionate force to respond to KLA attacks and
6 In a perfect world, that should have been the end of the
7 August 27, 1998, briefing story and we could move on. But I respectfully
8 suggest to you that we can't really do that because Colonel Crosland in
9 repeated statements to the Office of the Prosecutor over several years
10 and in his direct trial testimony here stated as follows, and I'll quote
11 from his statement, which is P2645, paragraph 49: "The constitutional
12 change to the role of the VJ was shortly after I showed the Deputy Chief
13 of the General Staff Ojdanic a video in August 1998, proving that the VJ
14 was involved in internal security operations, something he had denied."
15 Well, of course, we now know that that was an erroneous
16 statement. Colonel Crosland, after much backing and filling, finally
17 admitted on cross-examination that he did not show this video to
18 General Ojdanic or even hand it to him personally at any time.
19 The Trial Chamber may recall that in confronting Colonel Crosland
20 about the alleged showing of the video, I said - and I'm quoting now: "I
21 respectfully submit to you, sir, that I think you're wrong about that,
22 just like you were wrong about Lord Ashdown."
23 And I'll say here parenthetically you'll recall that
24 Colonel Crosland admitted to Ms. Carter, Prosecutor Carter, the day
25 before he testified, that he and Lord Ashdown had never shown
1 photographic evidence to General Ojdanic of the VJ shelling Suva Reka in
2 September 1998, as he also erroneously said in paragraph 51 of his
3 statement and, indeed, had erroneously so testified in the Milosevic
5 And continuing on with the cross-examination, my
6 cross-examination of Colonel Crosland, I said: "And by the way, sitting
7 here now -- sitting here now before I get into my questions, are you
8 prepared to concede if I make a sufficient demonstration to you that you
9 got that wrong, too?" In other words, in addition to Lord Ashdown, that
10 you've also gotten this wrong, that in fact you never really showed this
11 video to General Ojdanic.
12 And the answer was: "No. I represent, as I've said, the video
13 was given to the Vojska Jugoslavije. Whether General Ojdanic or anyone
14 else looked at it, I have no idea.
15 "Q. So you didn't show this video to General Ojdanic on
16 August 27th, 1998?
17 "A. I presented it to him or his staff, and what they did with
18 it, I do not know.
19 "Q. I presented it to him or his staff? There's a difference.
20 There's a difference, sir. Who did you present it to?
21 "A. I think at the time -- I think at the time Colonel Negovan
22 Jovanovic, who was the head of the foreign liaison service, was at this
23 meeting and I probably gave it to him.
24 "Q. So sitting here right now, is it fair to say you have no
25 idea whether General Ojdanic ever viewed that video?
1 "A. I've told you that, sir. It was not my job to ask the
2 general to look at a video because in my army, you would be put in
4 Now, what is the practical importance of all this to our case,
5 aside from showing that this portion of Colonel Crosland's OTP statement
6 and direct testimony was not true?
7 I suggest that it shows that even a witness with the credentials
8 of Colonel Crosland can get it badly wrong, can have a mindset which
9 closes out other possibilities, and can result, if not discovered as it
10 was fortunately -- as it was fortunately here, can result in a
11 miscarriage of justice. At the least it shows the frailty and
12 fallibility of human memory, something that is traditionally tested in
14 But what makes this situation even more disturbing - at least in
15 my view, it is disturbing, and I hope in the view of the Trial Chamber,
16 it's disturbing - is that my cross-examination had little, if anything,
17 to do with getting at the truth of this. As Judge Bonomy aptly observed
18 on this point during cross-examination, speaking to me, he said: "You've
19 got to something you might not have discovered, and you may have reached
20 it by accident."
21 That's transcript 9892.
22 Well, Judge Bonomy was exactly right, and that shows how fragile
23 our system of justice can be and why it's so important to keep getting it
24 right. And as we go along, I'm going to point out other areas where I
25 firmly believe that the OTP has not gotten it right, how the OTP, indeed,
1 has also this erroneous mindset about General Ojdanic that I've referred
2 to and why this motion for judgement of acquittal should be granted.
3 I'd like to continue our discussion of the evidence with
4 General Ojdanic's appointment as Chief of the General Staff of the
5 Yugoslav Army on 24 November 1998.
6 In his opening statement, Mr. Hannis said this about the
7 appointment of General Ojdanic to replace General Perisic and other
8 appointments at the same time. Mr. Hannis said: "The evidence supports
9 the suggestion that the new faces were seen as individuals who were
10 willing to follow the course intended by Milosevic in terms of solving in
11 spring 1999 the Kosovo problem, the Kosovo problem being ethnic
12 imbalance." That's page 430 of the 10 July transcript.
13 This statement of Mr. Hannis is simply wrong and not at all
14 supported by the evidence.
15 Ironically enough, in the light of Mr. Hannis's comments, when
16 General Ojdanic took charge of the collegium of the General Staff, this
17 is what he had to say to his colleagues on 27 November 1998: "To what
18 extent I am a hard-liner, how blind or loyal I am, my position on
19 resolving the problems in Kosovo and Metohija, I hope you know and are
20 witnesses of my participation in the meetings of the collegium, if
21 nothing else. Rest assured that in your colleague, who has been given
22 the difficult task of leading you, you have a man who above all thinks
23 with his own head and is his own man. This is how I've been and I remain
24 so, and I have no intention to nor can I change this at this very late
25 stage in my career." And you'll find that at Exhibit P925 at page 9.
1 Now, I'm going to suggest to you, and this suggestion is strongly
2 based on the evidence, that General Ojdanic was, indeed, his own man and
3 made decisions solely on the basis of what he thought was right. The
4 evidence is going to show in this case -- and maybe you caught some of
5 the flavour of that when he made his little statement to you at the
6 beginning, the evidence is going to show a person who is up-front, what
7 you see is what you get, he says what he means, he means what he says.
8 He's without guile; he's without duplicity. And I'm confident that the
9 collegiums, a number of which you're going to hear about today, will bear
10 this out and will bear out these qualities of General Ojdanic.
11 You may recall that for three years, General Ojdanic and his
12 Defence team -- and his Defence team at that time was -- was Mr. Visnjic
13 and Mr. Robinson, Peter Robinson, his Defence team fought to get evidence
14 from NATO and its member states of intercepted conversations which would
15 show General Ojdanic's words and deeds, and his innocent state of mind.
16 In the end, they unfortunately didn't have such intercepts, but
17 the verbatim transcripts of the collegium are the next best thing
18 providing you with an opportunity to understand what, why, and how
19 General Ojdanic conducted himself during the events in issue in this
21 We have 25 collegiums in evidence in this case; 22 of them from
22 27 November 1998 to 9 April 1999; and three prior to 27 November 1998.
23 The transcript of these collegium meetings represent spontaneous,
24 contemporaneous, and frank discussions of the General Staff concerning
25 the very issues which are the subject of this trial. The collegiums show
1 frequent, intense, and high-spirited discussions among generals. These
2 are men with strong views, who are not afraid to express their opinions.
3 I hope you'll be impressed, as I was, by the range and cogency of these
4 discussions and note that there were frequently doubts expressed as to
5 the best and wisest policy to be pursued.
6 I hope you will also note that virtually without exception the
7 comments and decisions made by General Ojdanic were always to resolve
8 doubts in favour of openness and candour and truth. I say this with full
9 confidence, and I say it now since I'll have no right to reply to what
10 Mr. Hannis might say about these collegiums. I respectfully submit to
11 you that the collegiums, when read in their entirety and not just a
12 little snippet that Mr. Hannis read during the re-direct examination of
13 Mr. Byrnes, when read in their entirety, these collegiums are the key to
14 demonstrating that there was no plan to expel Kosovar Albanians, and the
15 key to determining General Ojdanic's personal responsibility in this
16 case. And I urge you to pay great attention to them in your deliberation
17 on these motions.
18 Before --
19 THE INTERPRETER: The counsel is kindly requested to read more
21 MR. SEPENUK: I'm requested to read more slowly, and I promise to
22 try to abide by that. By my likes, Your Honour, I'm actually creeping,
23 believe it or not, and so I will make even further efforts to slow down.
24 Mr. Visnjic has probably passed me 20 notes that I'm going too quickly,
25 but I apologise if I slow down too much.
1 So before turning to the collegiums, which start for our purposes
2 on 27 November 1998, three days after General Ojdanic became Chief of
3 Staff, I want to put my discussion in the context of what was going on in
4 Kosovo at that time. It's particularly important to do this, since the
5 Prosecution in its indictment alleges that the joint criminal enterprise
6 came into existence no later than October 1998 and continued until
7 20 June 1999.
8 Now, what was happening in late 1998 when General Ojdanic became
9 Chief of the General Staff? We know from the evidence that Serbian
10 forces following their summer offensive against the KLA had succeeded in
11 recapturing most of the territory previously occupied by the KLA.
12 United Nations Security Council Resolution 1199 called for a cease-fire
13 and resolution of the conflict between -- that was taking place.
14 To this end, the Clark-Naumann-Milosevic Agreement was reached on
15 25 October 1998. It called for the reduction of VJ and MUP forces to
16 February/March 1998 levels.
17 We know from the evidence what happened after that. As
18 General Naumann, General DZ, Colonel Crosland, and others testified, the
19 Serbian side honoured its commitments and withdrew their forces. The KLA
20 then filled the void left by these forces, oozed back into these areas as
21 one observer put it. And as the KLA Chief of Staff Bislim Zyrapi stated,
22 this is the report of 28 December 1998, P2460: "Following the enemy
23 offensive, the repositioning of forces has been carried out in all
24 operating zones, and we can freely say that the territory controlled by
25 our units is now a greater percentage than prior to the enemy offensive."
1 To complete the picture of what General Ojdanic was facing when
2 he became Chief of Staff, the Trial Chamber will recall the very
3 significant evidence that starting in late 1998, and continuing right
4 until the start of the war in March 1999, KLA terrorist attacks and
5 provocations continued and, indeed, escalated in violation of the
7 The evidence is overwhelming on this point. General Naumann:
8 "In most cases the escalation came from the Kosovo side, not the Serb
9 side." 3D377.
10 Ambassador Walker, as stated in notes recorded by
11 Colonel Phillips of 30 November 1998, and I quote: "Most of the violent
12 acts are being committed by the KLA." 3D564.
13 General DZ: "I must say that during the Rambouillet discussions,
14 the number of incidents instigated by the Serbs declined significantly,
15 whereas those instigated by the KLA declined much less appreciably.
16 Furthermore, the KLA became more opportunistic during this time." P2508,
17 paragraph 189.
18 General DZ, March 1st, 1999, in his notebook: "KLA actions on
19 the ground are becoming increasingly unrestrained. The return of the KLA
20 leadership from France on 25 February does not appear to have affected
21 the situation for the good. KLA have taken hostages in the Prizren
22 region in the latest incident in a spade of detentions by the KLA. There
23 has also been KLA activity around Kacanik, an area which has been quiet
24 in recent months." 3D573, page 32.
25 Moreover, a series of reports and assessments made by the
1 Kosovo Verification Mission were to the same effect. I certainly won't
2 mention them all. You've heard extensive evidence about this. Just one
3 example is a KVM report covering the period 23 February to 11 March 1999,
4 3D179, which states that: "Unprovoked attacks by the KLA against the
5 police have continued, and the number of casualties sustained by the
6 security forces has increased." The report goes on to say that incidents
7 of kidnapping and abductions by the KLA have continued.
8 And the Chamber will recall the various ambushes and killings of
9 policemen. The murder of six Serb teenagers in the Panda Bar in Pec; the
10 kidnapping and killing of the deputy mayor of Kosovo Polje; the killing
11 of both Serb civilians and so-called Albanian collaborators continuing
12 right up until the war started, one of the last recorded incidents being
13 on 21 March 1999 when four members of the MUP were shot and killed in a
14 KLA ambush in Pristina.
15 In its comment to the report by the KVM fusion centre, the report
16 states that this is the first urban attack against the MUP in Pristina,
17 and the Trial Chamber will recall the testimony of Colonel Phillips that
18 the KLA had targeted for attack other urban areas aside from Pristina.
19 Transcript of 20 March 2007 at pages 1215 and 1216.
20 So by the beginning of the war on March 23rd, 1999, the KLA had
21 transformed itself, as Bislim Zyrapi testified, from a popular guerilla
22 army to a more effective organised army of some 17 to 18.000 men combined
23 with, when necessary, the use of hit-and-run guerilla tactics and
24 generally supported by a large majority of the Albanian population.
25 On the question of KLA numbers, I suggest that the most
1 authoritative source is Commander Zyrapi for obvious reasons, but the
2 fact is the KLA membership as set forth in an ECMM memorandum of June 22,
3 1998, that's P2136, was almost unlimited.
4 This report, a good part of which was read to you during the
5 cross-examination of Colonel Crosland - and I won't read it again, but I
6 do commend it to you, the report makes the following conclusion: "The
7 larger family unit to which an Albanian so often derives support is still
8 the most plausible overall structure on which the UCK is attached and
9 will remain their greatest strength. In this way, membership of the UCK
10 becomes unlimited."
11 Even Colonel Crosland, who put the hard-core number of KLA
12 fighters at 400, another erroneous mindset of Colonel Crosland, I
13 respectfully suggest, even Colonel Crosland agreed with the ECMM
14 assessment and stated: "It was entirely in line with what I've told you
15 on the bigger picture of the KLA and the potential for major numbers to
16 appear." Transcript 9905.
17 Indeed, in his OTP statement of June 30, 2006, 3D510, at
18 paragraph 49, Colonel Crosland states that: "I think that the clan-based
19 society, that is Kosovo, actually made the KLA stronger. You need the
20 tacit support of the whole family to get involved, but once you had it,
21 everyone would support the cause."
22 And then finally, to complete the picture of the difficulties
23 posed by the -- by the KLA and what was facing General Ojdanic when he
24 became the Chief of the General Staff, we have the observation of
25 Colonel Crosland made in a meeting of 25 June 1998 with
1 Colonel Jovanovic, who was serving as a liaison to the foreign military
3 Colonel Jovanovic's report on this meeting, 3D511, was confirmed
4 as accurate by Colonel Crosland in his testimony at 9909 through 12.
5 The report summarises Colonel Crosland's views on the KLA,
6 including: "That the KLA is increasingly revealing its fundamental
7 characteristic as a terrorist organisation which has no qualms in
8 liquidating its members for the slightest disobedience. Something that
9 has become more apparent recently."
10 Colonel Crosland further states: "The situation is also rendered
11 more complex by the fact that in Kosovo-Metohija, there is no front line
12 separating the two opposing forces, but instead there are terrorist
13 groups which set up base mostly in settled places with an ethnically pure
14 population supportive of the idea of Kosovo a republic."
15 So those were the harsh realities facing General Ojdanic both
16 when he assumed command of the General Staff in late November 1998 and
17 continuing to the start of the war. He had to ensure that the VJ
18 fulfilled its responsibilities set forth in the October 25 Clark-Naumann
19 Agreement and at the same time respond to the continuing threat posed by
20 the actions and provocations of the KLA and the threat of bombing by NATO
21 forces. How did he respond? We say honourably, decently,
22 professionally, as the evidence shows.
23 His first job was to deal with the Kosovo Verification Mission,
24 and I submit to you that General Ojdanic's dealings with the KVM were
25 honourable and straightforward, as the evidence clearly shows.
1 Though new on the job on 27 November 1998, just three days after
2 his appointment as Chief of the General Staff, General Ojdanic met with
3 General DZ, the chief of operations for the KVM. As General DZ
4 testified, General Ojdanic assured him that the VJ would fulfil all their
5 obligations under the FRY-OSCE Agreement.
6 General Ojdanic expressed the desire for transparent troop
7 rotations in and out of Kosovo, which he said were a normal part of
8 operations and should not be misunderstood by the international
10 General DZ described General Ojdanic's attitude during this
11 meeting as correct and confirmed that the KVM was indeed provided with
12 the information promised by General Ojdanic two days later. You will
13 find that testimony of General DZ at pages 7919 and 7923 of the
14 transcript of 5 December 2006.
15 General DZ further testified that his impression of the meeting
16 with General Ojdanic was that the general had just given him the green
17 light to open discussions with the lower levels of command, which was the
18 whole purpose of the meeting, given that General Ojdanic had just assumed
19 his position. That's at transcript 80 -- 88013-14 [sic].
20 General Ojdanic had agreed to transparent troop rotations at
21 their initial meeting, as was clearly reflected in General DZ's
22 contemporary notes taken about the meeting. 3D412, page 317.
23 General DZ, however, claimed in his statement to the OTP and here
24 at the trial in direct examination that his request to verify troop
25 rotations was "refused by Ojdanic and refused with considerable
1 authority," that's P2508, paragraph 66.
2 The Trial Chamber may recall that I took strong issue with this
3 testimony since I was convinced that it was incorrect, and I mentioned to
4 General DZ on cross-examination, that his notes revealed no such
5 conversation with General Ojdanic. I asked the general whether he was
6 willing to concede that he may indeed have gotten this wrong.
7 The Chamber may also recall that General DZ admitted that he may
8 have gotten it wrong and that his present recollection was that it was
9 General Loncar, as he put it "I'm pretty sure" it was General Loncar who
10 communicated this alleged comment by General Ojdanic; that's TR7927.
11 General DZ testified that he did not receive all the information
12 he wanted as a KVM verifier, but it's clear from the evidence that this
13 was not due to any action or decision of General Ojdanic. As
14 General Loncar testified, "The army never interpreted international
15 agreements; it simply implemented them, as instructed by the political
16 authorities." That's transcript of 1 December 2006 at 7673.
17 General DZ testified that he did not receive all the information
18 he wanted because of the difference of interpretation between the OSCE
19 and the Serbian political leadership over what was required under the
20 agreement. This is a subject open to debate, but the short of it is that
21 General Ojdanic was acutely conscious of the army's obligations in this
22 regard, and he went the last mile to fulfil them. And this is again
23 confirmed by the collegiums, as we will now show.
24 General Ojdanic expressed his attitude about cooperation with the
25 newly formed Kosovo Verification Mission at his very first collegium as
1 Chief of the General Staff. He said: "I personally think that every
2 unit, every troop rotation we can and should report to the verifiers, and
3 this will not cause any problems. This goes out, this comes in, rather
4 than having accusing [sic] us of bringing in reinforcements given the
5 situation we've been put in."
6 You'll find this in Exhibit -- that Exhibit 925 at page 16, the
7 transcript of the collegium of 27 November 1998. That was the same day
8 that General Ojdanic, again new on the job, met with General DZ.
9 In his comments to the collegium on 17 December 1998,
10 General Ojdanic stated, and I summarize here, I summarize closely,
11 though, based on wording: The members of the verifier group all have
12 diplomatic status, and that is how they should be approached. There
13 should be no forms of crudeness shown to them. This the least painless
14 form of intrusion, and we should not give them a reason to withdraw.
15 You'll find that in Exhibit 3D494, at page 21.
16 General Ojdanic also sought to improve the army's cooperation
17 with the verifiers. You'll recall the testimony of General Loncar that
18 in December 1998, General Ojdanic issued an order improving the
19 cooperation with OSCE by relieving liaison officers of other duties and
20 submitting reports on a daily basis to OSCE. This testimony can be found
21 in transcript of 1 December 2006, at pages 7675 and 7676. The order
22 itself is Exhibit 3D408 at page 2.
23 At the collegium of 24 December 1998, General Ojdanic
24 reiterated - and I summarize here - all commanding levels should study
25 the Security Council resolutions and agreements, and demand that they be
1 strictly observed. Nobody in the army has a right to violate these
3 And then quoting directly word for word: "Adventurism or false
4 patriotism which results in wilful behaviour which goes against the
5 resolutions or agreements must be severely sanctioned because such
6 behaviour could have fatal consequences for both this country and its
7 people." You'll find that at Exhibit 924 at page 27.
8 Now, I've already referred to the evidence that while the army
9 withdrew from Kosovo and attempted to comply with its international
10 obligations, the KLA took advantage by filling in the positions,
11 strengthening its forces, and threatening the local population.
12 And that is exactly what happened in the Podujevo area in
13 December of 1998. This led to the deployment of Yugoslavian Army
14 personnel to the Podujevo area at the end of December, which was
15 construed, as the Prosecution has submitted here, as a violation of the
17 I want to spend a few minutes discussing the Podujevo situation,
18 and I'm happy to continue to do it now, Your Honour, or I don't know
19 whether -- I probably have at least another five to ten minutes on
21 JUDGE BONOMY: Well, it might be convenient to break now and
22 resume at 4.00.
23 --- Recess taken at 3.41 p.m.
24 --- On resuming at 4.03 p.m.
25 JUDGE BONOMY: Mr. Sepenuk.
1 MR. SEPENUK: Thank you, Your Honour.
2 I'd just gotten to the event that was happening in Podujevo in
3 December of 1998, where the Kosovo Liberation Army had moved back into
4 that area previously vacated by the Serb forces. And I want to spend
5 some time discussing Podujevo, particularly to make it clear that the VJ
6 was not in Podujevo to either harass or expel Kosovar Albanian citizens
7 from the area.
8 A unit of the VJ was in Podujevo in December 1998, I submit to
9 you, for two very good reasons. One was to protect the Serbian civilian
10 population, which, as both Colonel Phillips and Shaun Byrnes confirmed,
11 were being terrorised and driven out of the area by substantial KLA
12 forces. The rather desperate condition of the Serb civilians in the area
13 was graphically described in Prosecution Exhibit 414, which is a letter
14 to various government Serbian officials -- government officials in Serbia
15 from two leading citizens of the Podujevo Municipal Assembly, which
16 describes terrorist acts by a KLA that "have become so strong that they
17 are marauding through the area literally armed to the teeth with
18 automatic rifles, hand-held rocket-launchers, necklaces of hand-grenades
19 and cartridge belts in the camouflage and black uniforms of what they
20 call their police."
21 You will recall the black uniformed police as described by
22 Mr. Byrnes as "sinister" and headed by a man called Geza, who had a
23 reputation for ruthlessness and for killing both Serb and Albanian
24 citizens. In their plea for help, the letter includes a request: "That
25 we again insist for the umpteenth time on the stationing of a Yugoslav
1 Army garrison on the territory of our municipality."
2 In addition to protecting civilians, the second reason for the VJ
3 presence, again confirmed by Phillips and Byrnes, was that it was very
4 important for both Serb forces and the military to keep open the very
5 strategic road which connected traffic from Belgrade down to Podujevo to
7 So given these very good reasons for the presence of a VJ unit,
8 what's the problem? The problem, as Mr. Byrnes testified, is that the VJ
9 presence in Podujevo allegedly violated that portion of the October 1998
10 Clark-Naumann Agreement which only allowed three company-size units in
11 Kosovo to protect three specified roads which did not include the
12 Podujevo-Pristina road.
13 The Trial Chamber will recall that General Loncar testified that
14 in his opinion there was no violation of the agreement, since the army in
15 Podujevo was not deployed for combat but was there on a training mission
16 and specifically to train personnel to operate tanks. That's at
17 pages 7623, 7630 of the record.
18 Mr. Byrnes testified that calling this a training -- calling this
19 a training mission was just an excuse, as he put it, to have a VJ unit in
20 the area.
21 You'll recall that Judge Bonomy asked Mr. Byrnes, and I quote:
22 "Let's assume it was a genuine exercise, would it be permitted by the
23 Agreement agreement?"
24 Mr. Byrnes stated that his "recollection of the agreement is not
25 so precise that I can answer that question directly."
1 Well, I'm not sure I can answer Judge Bonomy's question either,
2 based on the language of the agreement. We do know, however, from
3 Ambassador Walker's letter to Mr. Milosevic on 23 November 1998, that's
4 Prosecution Exhibit 396, that information required to be furnished by
5 Serbian forces in Kosovo included: "Those security force sites at which
6 no formation, unit, or subunit is located (for example, training areas)."
7 So it's certainly a legitimate conclusion that training areas
8 were indeed contemplated under the agreement, and why shouldn't a
9 training area include an area where, as Mr. Byrnes testified, the KLA
10 commander Remi was "very aggressive" and "was constantly pushing the
11 envelope, if you will."
12 This is aside from the fact that the October 25 Clark-Naumann
13 Agreement - and that's P395 - retained for Serb authorities "the right to
14 respond adequately and proportionately to any form of terrorist activity
15 or violation of law which could jeopardise the lives and safety of
16 citizens and representatives of the state authorities."
17 Now, how did General Ojdanic and the General Staff react to the
18 events in Podujevo? Again, the collegiums provide a compelling answer.
19 The discussion at the collegium of 30 December 1998 demonstrates that a
20 VJ unit was in the Podujevo area not as part of any effort or any plan to
21 harass or expel Kosovo-Albanian citizens, but because it was necessary to
22 protect Serb civilians and important convoy and supply routes.
23 General Dimitrijevic reported that the KLA is in a position to
24 block the Pristina-Podujevo road whenever they wish, and that the KLA
25 actions have resulted in the abandonment of three Serb villages in the
1 Podujevo area. He said that the entire state structure had left
2 Podujevo, and it is only the army's pressure in Podujevo which is
3 managing to ensure the safety of the remaining Serb civilians. You'll
4 find that on pages 7 through 10 of Exhibit P928, again the minutes of the
5 collegium of 30 December 1998.
6 At that collegium, General Ojdanic justified the deployment of
7 the army in the Podujevo area by recalling what General Perisic had said
8 when he agreed to the condition of withdrawal of the VJ at an earlier
9 time; that if the other side threatened the local population, we would be
10 forced to bring this group back into the area. You'll find that at
11 page 17 of Exhibit P928.
12 Now, finally, on this question of whether this was an exercise,
13 we'll recall -- the Chamber will recall the re-direct examination by
14 Mr. Hannis of Mr. Byrnes, and Mr. Hannis referred Mr. Byrnes to that
15 particular collegium I just quoted from, P928, and he had Mr. Byrnes read
16 out the following from General Dimitrijevic's language.
17 General Dimitrijevic said: "The explanation that this was a
18 planned exercise, that is not true. It was planned that the unit would
19 provoke the terrorists so that the MUP would then have to do whatever it
20 had to do. The fact the MUP did not do what it had to do afterwards has
21 resulted in what we have now."
22 And then on re-cross-examination, I asked Mr. Byrnes to read
23 again from the collegium. I was gently chided by Judge Bonomy for doing
24 so, but I was trying to get this -- this into evidence for you. And at
25 that time on page 17 of this particular collegium, Colonel --
1 General Ojdanic said -- here's what he said about Podujevo: "These
2 claims presented here regarding the situation down there in and around
3 Podujevo that the presence of this unit added to it, it was really a
4 matter of whether the marching route and the location of the camp were
5 selected correctly, but this unit really was bivouacked there. I was
6 assured of this by the commander of the army"; the commander of the army
7 at that time being General Samardzic.
8 So we have General Dimitrijevic saying it's not an exercise; we
9 have General Loncar and the 3rd Army commander saying that it is an
10 exercise. Now, if we were at the end of the case and we were arguing the
11 case, then I would invoke the principle in dubio pro reo and ask you to
12 resolve doubts in favour of General Ojdanic, but we're not in that part
13 of the case, and I concede that viewing this in the light most favourable
14 to the Prosecution, you're entitled to conclude that this was not an
16 But what does that say? All that shows, that at most this was a
17 violation of the Clark-Naumann Agreement, but that's not what
18 General Ojdanic is charged with. He's charged with being part of a joint
19 criminal enterprise to deport Kosovo-Albanians. And in that regard, it's
20 very clear from this meeting that the purpose -- very clear from the
21 collegiums, that the purpose was not to do that but to protect Serbian
22 civilians and to protect that very strategic road.
23 And incidentally, again, other generals had a fair amount to say
24 about this during that collegium, and it would really be instructive, I
25 think, for the -- for the Trial Chamber to read the entire discussion
1 that took place at that time.
2 Now, continuing the chronology, we're now into January of 1999,
3 and at that collegium on January 14th, 1999, it was reported that in the
4 last week, measures were taken to ensure full implementation of the
5 agreement with OSCE. The General Staff once again remarked that any
6 failure of the OSCE monitoring admission [sic] could be used by those who
7 support other kinds of engagement by international forces in Kosovo.
8 You'll find that at pages 6 to 9 of Exhibit P936.
9 In the next days, the event at Racak occurred. Now, again, we
10 know that the Trial Chamber has eliminated Racak as a scene, a crime
11 scene, in the indictment, but as you also well know, there have been all
12 sorts of testimony about it on pattern, command, function, et cetera.
13 And at the collegium on 21 January 1999, General Ojdanic was assured that
14 the army was not involved in this incident. He told the collegium that
15 he had ordered the corps command to provide a report of where the army
16 units were and what they were doing.
17 He reported that he studied the report in detail, and it
18 represents the army was not involved and that no artillery support was
19 given. General Ojdanic went on to say there is no reason to hide
20 anything. If the army was involved, we'll admit it and take the
21 consequences. "As the Chief of the General Staff, I want to know the
22 truth." You'll find these comments at pages 10 and 12 of Exhibit P939.
23 Throughout the remainder of January and February, as the
24 political pressure from the international community mounted on the
25 government, General Ojdanic and the General Staff continued to urge
1 restraint so as not to provoke a NATO attack. You can see this in the
2 collegium discussions on 2 February 1999, which is Exhibit 931 at page 6,
3 and the collegium of 25 February 1999, which is Exhibit 941 at pages 5
4 through 7.
5 In the collegium of 11 February 1999, General Ojdanic directed
6 that the army's liaison officers with the Kosovo Verification Mission be
7 upgraded, and that English-speaking officers be transferred to perform
8 liaison duties. That's in Exhibit P934 at pages 24, 25, and then in the
9 order he issued on 89 -- 8 March 1999, which is Exhibit 3D407.
10 General Loncar also testified about this at pages 7677 and 7680.
11 As the threats and military preparations from the international
12 community intensified during February and March 1999, General Ojdanic and
13 the General Staff became increasingly concerned about a possible ground
14 invasion. You'll see this in the collegium of 4 February 1999, which is
15 Exhibit P932 at pages 10 and 11.
16 On 18 February 1999, General Antic reported that the number of
17 NATO forces in Macedonia will be raised to 8.000 at the end of February.
18 General Ojdanic indicated that he had taken the position to call-up and
19 deploy troops to areas near the border with Kosovo so that they can be
20 deployed there rapidly. It was clear that this build-up of troops was to
21 defend against a possible NATO invasion and not to expel the Albanian
23 When explaining why he had decided to call-up more troops,
24 General Ojdanic expressly said on this occasion: "We must defend the
25 country if we are attacked. Politics and diplomacy will do everything to
1 resolve this by peaceful means if possible." That's at page 18 of
2 Exhibit P937.
3 On 11 March 1999, General Ojdanic said at the collegium that the
4 OSCE knew full well why the Yugoslavian army had increased and deployed
5 more troops. He said, and I summarize here: NATO is getting 9.500
6 people on board down there, we don't know whether they will use them to
7 invade, but we can't sit here and be unprepared. That's at pages 21 and
8 22 of Exhibit P935.
9 On 18 March 1999, at the collegium, General Ojdanic again stated
10 that the army had increased its forces in and around Kosovo because of
11 the NATO build-up of troops in Macedonia. That's at page 7,
12 Exhibit P938.
13 Therefore, it's clear from these discussions over the course of
14 February and March 1999, that the build-up of troops of the Yugoslav
15 forces had nothing to do with any plan to expel Albanians from Kosovo.
16 In fact, at the collegium on 4 March 1999, it was reported that the KLA
17 was trying to provoke incidents of excessive use of force or a
18 humanitarian crisis so as to generate international intervention, and
19 that the possibility of the KLA provoking massive movements of refugees
20 in order to create again a humanitarian -- a humanitarian catastrophe
21 situation could not be excluded.
22 General Dimitrijevic specifically reported intelligence that very
23 organised activities of the KLA were moving civilians from individual
24 villages to bring the humanitarian crisis to the fore again and
25 provoke -- provoke a reaction from the international community. You'll
1 find that on pages 4 through 9 of Exhibit P933.
2 Therefore, not only is there not a single mention of a plan by
3 the Yugoslav Army to expel Albanians from Kosovo, but it's clear that the
4 General Staff believed that it was the KLA who wanted the population to
5 move. Had a plan to expel Albanians been in existence to the knowledge
6 of the General Staff, it is inconceivable that it not -- it would not
7 have at least been alluded to in the collegiums.
8 The discussion -- the discussion at the --
9 THE INTERPRETER: The interpreters request that the speaker slow
10 down, please.
11 MR. SEPENUK: Yes. I've been -- I've been requested to slow
12 down. I apologise to the interpreters, and I assure you my colleague,
13 Mr. Visnjic, has been very keenly after me.
14 The -- the discussion at the collegium of 9 April 1999 is
15 particularly important to understand what General Ojdanic knew about the
16 movement of the population from Kosovo. It's clear that he believed that
17 it was the KLA, not the Serb forces, who were causing the movement of
18 people from Kosovo.
19 General Krga, in charge of the intelligence administration,
20 described the movement as "the planned withdrawal of the so-called Kosovo
21 Liberation Army and Siptar people from Kosovo which has realistically
22 created a difficult humanitarian situation." That's at page 5 of the
23 collegium, which is Exhibit P929.
24 General Gajic, who was the head of security administration, said
25 at the same collegium that: "After crushing the terrorist forces in
1 Kosovo, some of them managed, probably in a planned way, to withdraw to
2 Albania, Macedonia, and a few to Montenegro." He predicts that the
3 terrorists will force Albanian and non-Albanian citizens to move out of
4 Kosovo. He goes on to say that: "The enemy will conduct planned
5 activity to push out Siptars in order to accuse the army and the state of
6 ethnic cleansing and genocide, thereby creating more favourable
7 conditions for operations by NATO against our forces." That's at pages 8
8 through 11 of Exhibit P929.
9 On that same day, April 9, 1999, General Ojdanic issued a
10 directive which indicated that the army expected infiltration by KLA on
11 the pretext of securing the return of the refugees; that reception of
12 refugees on the state border should be organised; that the army should
13 offer assistance to other organs of government for the further care of
14 the refugees; that infiltration of the returning refugees by the KLA
15 should be prevented; and that the enemy should be treated in accord with
16 international humanitarian law. That's Exhibit P1481.
17 It's therefore clear that as of 9 April 1999 at the level of the
18 staff of the Supreme Command, the displacement of the refugees was
19 believed to have been a KLA tactic to stimulate international support;
20 that it was seen as against the interests of the army; and that the
21 return of the refugees was not only contemplated but was to be
22 facilitated. This is hardly consistent with a joint criminal enterprise
23 to deport Kosovo-Albanians.
24 In fact, the Prosecution witness, General Vasiljevic, testified
25 that he was certain there was no plan to expel Albanians from Kosovo. He
1 said that if such a plan existed, it would have had to have been
2 discussed at the daily meetings of the Supreme Command Staff attended by
3 a representative of the security organs and no such discussion, in fact,
4 took place.
5 You'll find his testimony in the transcript of 22 January 2007 at
6 page 8840.
7 There is simply no evidence from which any -- from any witness or
8 document that General Ojdanic ever agreed to, had knowledge of, or
9 participated in any enterprise or operation which had as its objective
10 the expulsion of Albanians from Kosovo. This fact alone requires a
11 finding that the Prosecution has not proven its case against
12 General Ojdanic for individual criminal responsibility under Article 7(1)
13 of the Statute.
14 In short, the Prosecution's case against General Ojdanic for
15 individual criminal liability comes down to this: Because the expulsion
16 of Albanians was widespread all across Kosovo, it must have been the
17 result of a plan, a joint criminal enterprise.
18 However, taking the Prosecution's evidence at its highest, giving
19 them the benefit of all doubt, there is simply no evidence that
20 expulsions were planned or ordered at the level of the General Staff.
21 The Prosecution cannot substitute inference for evidence, particularly
22 where the involvement of the General Staff is not the only reasonable
23 inference available from the evidence. Other reasonable inferences in
24 support of the Prosecutor's theory, such as the bad behaviour of
25 individual soldiers or units or coordination by other bodies on the
1 ground in Kosovo, may be more readily drawn from the evidence heard by
2 the Trial Chamber.
3 As the Appeals Chamber has recently said in the Galic appeals
4 judgement, "Findings at trial based on circumstantial evidence must be
5 the only reasonable conclusions available from that evidence. If there
6 is another conclusion which is also reasonably open from the
7 circumstantial evidence and which is consistent with the innocence of the
8 accused, he must be acquitted."
9 Putting aside the substantial questions of whether a joint
10 criminal enterprise or even a plan to expel Albanians from Kosovo ever
11 existed, one thing is abundantly clear. There is no evidence - I
12 repeat - no evidence upon which this Trial Chamber could conclude that
13 General Ojdanic participated in such an enterprise or plan. For that
14 reason, he must acquitted on charges of individual criminal liability
15 under Article 7(1) on each count of the indictment.
16 I'd like now to turn to the events in Kosovo beginning on
17 24 March 1999 and the question of General Ojdanic's superior
18 responsibility under Article 7(3): The failure to prevent or punish
19 crimes submitted -- committed by his subordinates.
20 The Appeals Chamber has held that to hold a commander responsible
21 for the crimes of his subordinates, it must be established beyond
22 reasonable doubt: First, there existed a superior/subordinate
23 relationship between the superior and the perpetrator of the crime;
24 second, the superior knew or had reason to know that the criminal act was
25 about to be or had been committed; and three, the superior failed to take
1 the necessary and reasonable measures to prevent the criminal act or to
2 punish the perpetrator thereof.
3 I take that from the Kordic Appeals Chamber judgement
4 17th December 2004 at paragraph 827.
5 For the purposes of this agreement, let's assume that the
6 Prosecution has introduced evidence from which the Trial Chamber could
7 find that some of the crimes alleged in the indictment were committed in
8 Kosovo by members of the Yugoslavian Army. I don't know to what extent,
9 if any, my colleagues will address the crime-based evidence in this case,
10 but for purposes of assessing General Ojdanic's criminal responsibility
11 in this motion, let's assume that the first element has been established;
12 that at least some of the crimes charged in the indictment were committed
13 in Kosovo by persons who were subordinate to General Ojdanic.
14 And by "subordinates," I'm using the word in the most general
15 sense, since in fact there were at least five degrees of separation
16 between General Ojdanic in Belgrade and any soldiers who may have
17 committed crimes in Kosovo. The soldiers were subordinate to the company
18 commander, the battalion commander, the brigade commander, the corps
19 commander, the 3rd Army commander, and finally to General Ojdanic as
20 Chief of Staff.
21 It may well be that despite the fact that some perpetrators of
22 the crimes were soldiers in the army and, therefore, technically
23 subordinate to General Ojdanic, he did not have the requisite "effective
24 control" over them, as required by relevant case law to satisfy the first
25 element of Article 7(3).
1 But again, we're in a 98 bis motion, so let's assume for purposes
2 of this 98 bis motion that at least some of the crimes in the indictment
3 were committed by persons who were subordinates of General Ojdanic and
4 over whom he exercised effective control. Let's assume that arguendo.
5 So let's turn then to the second requirement, and that is the
6 issue of knowledge. What is the evidence that General Ojdanic knew or
7 had reason to know that any of the specific crimes charged in the
8 indictment "was about to be or had been committed"? And the answer, I
9 respectfully suggest, is: None.
10 You heard from General Vasiljevic that it was the regular
11 practice for brigades to submit daily combat reports to the Pristina
12 Corps command. The corps command condensed the information into a single
13 report, which was forwarded to the 3rd Army. The 3rd Army would condense
14 the reports from the corps and send it on to the Supreme Command Staff.
15 You'll find that testimony in the transcript of 18 January 2007 at page
17 The daily combat reports of the Pristina Corps were also copied
18 to the staff of the Supreme Command in Belgrade. I submit to you that
19 there is no evidence that any of the crimes charged in the indictment
20 were included in any of the daily reports received by General Ojdanic or
21 the Supreme Command Staff, nor is there any testimony from anyone that
22 they had brought any of the specify crimes listed in the indictment to
23 General Ojdanic's attention.
24 There is evidence in these reports that, in general, crimes were
25 being committed in Kosovo, and they were being addressed by the military
1 justice system. Pristina Corps daily combat reports, beginning on
2 3 April 1998 [sic], reported that during the preceding days, 32 criminal
3 reports were submitted against the perpetrators for crimes: eight for
4 murder; one for abuse; three for attempted murder; two for taking
5 vehicles; six for theft; and 12 for absence without official leave.
6 That's Exhibit 5D84.
7 Other Pristina Corps daily combat reports containing similar
8 information, which are in evidence, include the report of 4 April 1999,
9 which is Exhibit P2617; the report of 13 April 1999, which is
10 Exhibit P2004; the report of 25 April 1999, which is Exhibit 2016;
11 9 May 1999, Exhibit P2006; 12 May 1999, Exhibit P2007.
12 We also have some of the daily reports of the 3rd Army to the
13 staff of the Supreme Command in evidence. For example, the report of
14 20 April 1999, which is Exhibit P1945, informed the General Staff that:
15 "Individual cases of violation of order and discipline had been
16 registered and were successfully dealt with. Units of the military
17 police carrying out -- are carrying out -- successfully carrying out
18 tasks that fall within their competence." You'll find that on page 4.
19 In the 3rd Army daily report of 27 April 1999, it was indicated
20 that military prosecutors are processing 89 criminal reports and had
21 issued 11 indictments. First-instance courts had received 38 requests
22 for investigation and 10 indictments. That's on page 2 of Exhibit P2005.
23 Two days later, on 29 April 1999, it was reported that military
24 prosecutors had received 116 criminal reports and first-instance courts
25 had received 15 indictments. That's from page 2 of Exhibit P2017.
1 Similar reports can be found in the 3rd Army reports of
2 20 May 1999, which is Exhibit P2008 at page 4.
3 In a Pristina Corps daily report of 9 May 1999, it was reported
4 that: "The population is treated correctly and humanely." An example
5 was given of how soldiers had found a group of Albanian refugees in the
6 woods and taken them to a nearby school where they were supplied with
7 heating, oil, and food. You'll find that at page 4 of Exhibit P2006.
8 And parenthetically may I note here the testimony of Shaun
9 Byrnes, who was quite clear in saying that in his opinion the VJ, both
10 before and during the conflict, acted honourably and correctly.
11 So a review of these reports indicates that the staff of the
12 Supreme Command was being informed in general of the commission of some
13 crimes in Kosovo and was being consistently assured that these crimes
14 were being adequately addressed by the military justice organs.
15 The evidence also shows that, during this period, General Ojdanic
16 took measures to prevent crimes in Kosovo. On 2 April 1999, he issued an
17 order to treat prisoners humanely and to undertake prosecution against
18 any army member who fails to adhere to international humanitarian law,
19 and that the combat reports be upgraded to include instances of failure
20 to obey humanitarian laws. That's at Exhibit 3D480.
21 On the 7th of April, General Ojdanic issued an order that
22 required full screening of volunteers. He directed that his subordinates
23 pay special attention to the results of the psychiatric examination he
24 had required for all volunteers to establish the suitability of
25 volunteers from a security point of view, to prohibit the grouping of
1 volunteers in one unit, to inform each volunteer that the illegal
2 behave -- that illegal behaviour will not be tolerated and will be
3 punished and to strictly prohibit paramilitaries. You'll find that order
4 as Exhibit P1479.
5 General Ojdanic issued another order on 14 April 1999, which
6 directed that a sufficient number of security organs, military police,
7 and psychologists must be engaged at reception centres for volunteers,
8 emphasised the volunteers must undergo psychological screening and
9 training, insisted that there be training on the consequences of unlawful
10 behaviour, and that it be clearly stated that any such conduct will
11 prosecuted. General Ojdanic once again forbid volunteers to be grouped
12 into separate units. That's all in Exhibit 3D481.
13 And finally, on this aspect of the case I call to the
14 Trial Chamber's attention a communication dated 20 April 1999 from the
15 Supreme Command Staff, that's Prosecution Exhibit 1943. This
16 communication is critical of the 1st Army for sending volunteers in its
17 area for service in the 3rd Army, where of course the war was going on,
18 including the fact that a number of the volunteers had a prior criminal
19 record and also citing paramilitary volunteers who were unfit for
20 military service. And this document says specifically several days --
21 and I'm reading from P1943: "Several days after receiving the
22 volunteers, 20 of them were returned from the Pristina Corps and seven of
23 them were detained for outlawry, murder, rape, refusing to obey orders,
24 and desertion."
25 The report goes on to say: "A number of volunteers, around 50
1 per cent subsequently gave up their deployment and engagement in the VJ
2 Yugoslav Army RJ war units, reserve units stating that they were not
3 ready to obey the orders unreservedly."
4 And finally report says: "Based on the above stated take
5 measures in order to eliminate the problems and oversights that were
6 noted -- and to entirely secure execution of the order issued by the
7 Chief of the Supreme Command Staff dated 14 April 1999." And that was
8 the prior order of General Ojdanic outlining more stringent screening and
9 entreatment of volunteers and paramilitaries.
10 General Ojdanic's insistence that international humanitarian law
11 be obeyed by the soldiers under his command continued throughout the
12 period of the war. On 16 April 1999, he issued a warning labelled "very
13 urgent" that he transmitted to all army units in Kosovo, reiterating that
14 international law must be observed and that all organs must prevent and
15 report criminal acts.
16 "During combat so far," reading from the report -- reading from
17 General Ojdanic's transmission.
18 "During combat so far, according to some information, there have
19 been isolated cases of conduct when the provisions of the instructions
20 and guide-lines on conduct and the provisions of the international law of
21 war were not fully complied with. Some commands and units do not pay due
22 attention to combatting isolated cases of looting and crimes. Commands
23 and professional organs shall undertake effective measures to prevent all
24 forms of criminal acts. Inform all members of the VJ about the damaging
25 consequences of all forms of criminal activity to the population and
1 morale of the army."
2 That's Exhibit 3D482.
3 And then on April 25th, 1999, General Vasiljevic was called out
4 of retirement and given the task of investigating and reporting to the
5 staff of the Supreme Command about crimes committed in Kosovo.
6 On 26 April 1999, General Ojdanic issued another order that
7 provided that paramilitaries are to be disarmed and legal measures taken
8 against them that violators of international law are to be apprehended,
9 prosecuted, and the superior command levels informed, that the Geneva
10 Conventions and rules of law are to be consistently and rigorously
11 obeyed, and that superior officers are to be held responsible for this.
12 You'll find this order in Exhibit P1902.
13 On 10 May 1999, General Ojdanic issued yet another order
14 emphasising that commanders were obligated to take all necessary steps to
15 prevent violations of international humanitarian law and warning them
16 that they'll be held personally responsible if they don't. You'll find
17 this as Exhibit 3D483.
18 Also in evidence is a report of 7 May 1999, which is
19 Exhibit P1917. In that report, the staff of the Supreme Command was
20 informed that after initial difficulties, the organs of the military
21 justice system are now working according to wartime conditions, and that
22 military prosecutors and military courts are being reinforced.
23 Another report on the work of military judicial organs in wartime
24 was prepared on 12 May 1999. The report noted that military judicial
25 operations had been put in operation as soon as a state of war was
1 proclaimed, but that the large number of criminal reports required
2 replenishment of these organs with professional and experienced
3 personnel. The report notes that the initial deficiencies were
4 relatively quickly eliminated.
5 The report further noted that the military judicial organs at the
6 command of the Pristina Corps had encountered very complex criminal cases
7 concerning serious crimes, and that it was necessary that legally valid
8 proofs be included in the criminal reports.
9 It concluded with recommendations for improving the efficiency of
10 the military judicial organs.
11 You'll find this report at Exhibit P1918.
12 Meanwhile, as you've heard from the testimony of
13 General Vasiljevic, on 13 May 1999, there was a modest celebration of the
14 day of the establishment of the security services. The representatives
15 of the security department were received by General Ojdanic. On that
16 occasion, General Geza acquainted General Ojdanic with the information
17 that General Vasiljevic had learned from his mission to Kosovo.
18 General Vasiljevic testified that General Ojdanic was very taken
19 aback by what he was told. How while the officers were still there, he
20 called President Milosevic and informed him that he had just received
21 information from security organs that there was serious problems with
22 crimes being committed in Kosovo.
23 General Vasiljevic further testified that a meeting was scheduled
24 for the 17th of May with President Milosevic.
25 General Ojdanic then called General Pavkovic and summoned him to
1 Belgrade to report directly to General Ojdanic what was going on.
2 According to General Vasiljevic, General Ojdanic explicitly
3 stressed that nothing should be concealed or cover -- or covered up, and
4 that everything that had happened be put forward, and that it has to be
5 seen whether any measures and what measures had been taken to deal with
6 such developments.
7 You'll find that testimony from General -- from
8 General Vasiljevic in the transcript 19 January 2007, at pages 8748 and
10 General Vasiljevic also told you of the meeting held at the
11 Supreme Command on 16 May 1999 prior to the meeting with
12 President Milosevic. At this meeting, General Pavkovic spoke about
13 crimes that were allegedly committed. General Vasiljevic testified that
14 from the reaction of General Ojdanic at this meeting and the meeting of
15 May 13, he concluded that General Ojdanic had not been informed of the
16 extent of the crimes that had been committed in Kosovo.
17 You'll find that testimony in the transcript of 19 January 2007,
18 at pages 8755 and 8768.
19 These crimes were discussed in full during the meeting on
20 17 May 1999 with President Milosevic and representatives of the Ministry
21 of Interior and state security. According to General Vasiljevic,
22 General Ojdanic and Pavkovic proposed an independent state commission to
23 investigate war crimes in Kosovo.
24 You'll find that testimony in the transcript of 22 January 2007,
25 at page 8783.
1 Although this commission was never established, General Ojdanic
2 continued to make his own efforts to see that crimes in Kosovo were
3 prevented and punished.
4 According to General Vasiljevic on 26 May 1999, orders were
5 issued to improve the functioning of the military courts.
6 General Ojdanic then convened a meeting on 28 May 1999 with the heads of
7 the military judicial organs and General Farkas, in which he informed
8 them that their bodies were required to act more vigorously.
9 You'll find that testimony in the transcript of 22 January 2007,
10 at page 8878.
11 And you can see from the report of 30 May 1999, which is
12 Exhibit P1899, that daily reports of the functioning of the military
13 courts began to be compiled and provided to the Supreme Command Staff.
14 General Vasiljevic also testified that after the meeting of
15 17 May, General Ojdanic sent him and General Geza to Kosovo to gather
16 more detailed information about what was going on concerning crimes,
17 looting, and the other problems that were reported at the meeting.
18 General Vasiljevic learned during his investigation that there
19 had been a decision by the army command in Pristina not to report the
20 commission of some crimes, but General Vasiljevic went on to say that the
21 3rd Army had investigated and processed these cases, and therefore they
22 thought it unnecessary to further report these particular cases up the
23 chain of command.
24 You'll find that in the transcript of 19 January 2007, at pages
25 8647, 8651.
1 You also heard testimony from Mr. Djordjevic about the pressure
2 put on the military judicial organs, the lack of credibility of the
3 testimony of this disgruntled individual is a matter which I recognise is
4 not properly before you at this stage of the proceedings in deciding on a
5 motion for judgement of acquittal.
6 But even if his testimony is taken at face value, which we must
7 do in a 98 bis hearing, even if it's taken at face value, it provides no
8 facts to believe that General Ojdanic was involved in or aware of any
9 efforts to extricate certain individual from prosecution -- certain
10 individuals from prosecution for crimes they committed on the ground in
12 You can see that on the 8th of June, as the extent of these
13 crimes began to come to light at the level of the Supreme Command, a
14 briefing was held by the Supreme Command Staff. According to the notes
15 of this briefing, which is Exhibit 3D493, General Geza reported that a
16 full analysis had been made of the problems involving humanitarian crime.
17 He said that most of the atrocities and serious crimes from looting to
18 rapes had been documented and were now before military court organs. He
19 said that around 95 per cent of the perpetrators had been arrested or
20 under investigation.
21 At this meeting, General Ojdanic issued a document ordering that
22 military judicial organs should prioritise their prosecution of crimes,
23 and that violations of international law must be the first priority.
24 You'll find that document at Exhibit 3D487.
25 Therefore, the evidence in this case shows that General Ojdanic
1 had no knowledge of the specific crimes alleged in the indictment, and
2 therefore no ability or duty to prevent or punish them. The evidence
3 also shows that he was affirmatively informed that the movement of the
4 population was the result of KLA action, not that of the army. And the
5 evidence showed that when he was informed in a general way of violations
6 of international humanitarian law being committed by members of the army
7 in Kosovo, he took swift and repeated steps to investigate, prevent, and
8 punish those crimes.
9 A review of the jurisprudence that sets out the standards of a
10 top commander, such as General Ojdanic, shows that his actions were
11 appropriate and proper. Starting with the high command case at Nuremberg
12 after World War II when assessing the liability of the defendant Vonleeb,
13 the Tribunal noted that a Chief of Staff is not automatically criminally
14 responsible for the criminal acts of soldiers under his command. The
15 Tribunal said that a high commander "has the right to assume that details
16 entrusted to responsible subordinates will be legally executed." It must
17 be proven that there was some individual breach of his responsibilities
18 by that commander.
19 You'll find that language in volume 12 of the Law Reports of
20 Trials of War Criminals at page 76.
21 At the trials held in Tokyo after World War II, the Tribunal also
22 recognised the reality faced by top commanders. The court said: "In the
23 multitude of duties and tasked involved in modern government, there is of
24 necessity an elaborate system of subdivision and delegation of duties."
25 The court held that: "The responsibility of senior commanders is
1 twofold. First they must establish a system that secures proper
2 treatment, in that case of prisoners of war; and second, they must take
3 steps to secure the system's continued and efficient working."
4 It was also held that: "A senior commander cannot be expected to
5 be intimately familiar with all the day-to-day operations of his
6 subordinate units, rather, it is his responsibility to establish systems
7 that will ensure law of war compliance and then provide command oversight
8 of those systems."
9 You can find this jurisprudence in the Pritchard edition of the
10 proceedings of the Tokyo major war crimes at pages 443 through 448.
11 This concept was codified some 50 years later in the Statute of
12 the International Criminal Court, which explicitly provides in Article 28
13 for a commander's duty to take all necessary and reasonable measures
14 within his or her power to prevent or repress the commission of crimes or
15 to submit the matter to the competent authorities for investigation and
17 At this Tribunal, four Trial Chambers have endorsed the view that
18 the question whether all necessary and reasonable measures to prevent the
19 commission of crimes or to punish the perpetrators have been taken must
20 be considered in light of the accused's material powers at that time.
21 Factors relevant to the Chamber's assessment include whether
22 specific orders prohibiting or stopping the criminal activities were
23 issued; what measures to secure the implementation of these orders were
24 taken; what other measures were taken to secure that the unlawful acts
25 were interrupted; and whether these measures were reasonably sufficient
1 in the specific circumstances. And after the commission of the crime,
2 what steps were taken to secure an adequate investigation and to bring
3 the perpetrators to justice.
4 You'll find that in the judgement in the Strugar case at
5 paragraph 378; the Halilovic case, at paragraph 74; the Limaj case at
6 paragraph 528; and the Hadzihasanovic judgement, at paragraphs 147 and
7 1043 to 1067.
8 General Hadzihasanovic was held not -- was held not responsible
9 for failing to punish Bosnian army subordinate soldiers who killed
10 unarmed prisoners because he turned the matter over to the judicial
11 system. The accused was informed that executions may have occurred, but
12 concluded that the deaths were combat related. Pursuant to local
13 procedure, the military police then referred the matter to the military
15 Evidence established that the court did not punish the
16 perpetrators; however, since the accused turned the matter over to the
17 appropriate authority without reason to suspect a crime was committed, he
18 was held not to have failed to take reasonable measures.
19 And again that's in paragraphs 1043 to 1063 of the Hadzihasanovic
21 In the Blaskic case, the accused was held not responsible by the
22 Appeals Court for failing to punish subordinate crimes because he had
23 submitted the case to competent authorities. Despite never receiving a
24 satisfactory report regarding the alleged incident, the Court found that
25 the accused's obligation, by virtue of the duties of his position, was to
1 call for an investigation. By doing so, the accused had fulfilled his
2 duty, despite the fact the investigators allowed the crime to go
4 You'll find that at paragraphs 412 through 422 of the Blaskic
5 appeals judgement.
6 From the evidence produced by the Prosecution in this case, you
7 can see that as Chief of Staff in Belgrade, General Ojdanic had no
8 specific information about the crimes alleged in the indictment. Given
9 the attitude and actions he displayed consistently throughout the war, it
10 is clear that if he had had such information, he would have referred the
11 matters to the competent military judicial authorities and insisted that
12 the perpetrators of these crimes be prosecuted.
13 It is also clear that during the course of the war,
14 General Ojdanic received general information that crimes were being
15 committed by members of the army, but at the same time he was receiving
16 consistent information that these crimes were being addressed by the
17 military justice authorities, who were the competent authorities to
18 handle such matters.
19 When he first began receiving information of more extensive
20 problems with crimes in Kosovo, General Ojdanic took swift and decisive
21 action. He ordered an investigation, insisted on receiving reports on
22 the situation from his subordinates, immediately brought the matter to
23 the attention of his own superior President Milosevic, and issued a
24 series of directives and orders, insisting on obedience to international
25 humanitarian law, threatening superiors with personal consequences for
1 breaches by their subordinates, and strengthening the military justice
3 It is our respectful submission that there is no evidence from
4 which the Trial Chamber could find that General Ojdanic failed to take
5 reasonable and necessary measures to prevent and punish crimes committed
6 in Kosovo.
7 The Prosecution's own case is replete with frequent and repeated
8 efforts by General Ojdanic to meet and exceed his obligation as a
9 commander to prevent and punish such crimes. These efforts are all the
10 more extraordinary when one considers the circumstances under which
11 General Ojdanic was operating, facing a daily barrage of bombs dropping
12 all over the territory of Serbia by the combined forces of the greatest
13 superpowers in the world.
14 The philosopher and statesman Edmund Burke said: "All that is
15 necessary for the triumph of evil is that good men do nothing." The
16 Prosecution's case in this courtroom has indeed shown that evil deeds
17 were committed in Kosovo against Albanians, just as its case in another
18 courtroom is showing that evil deeds were committed in Kosovo against
20 But the Prosecution's own evidence has shown that General Ojdanic
21 was not one of those who did evil, and he was not one of those who did
22 nothing; rather, as you heard from General Loncar, General Perisic [sic],
23 and General Vasiljevic, General Ojdanic was a good man, a good soldier,
24 and a good commander who acted professionally and without ethnic hatred
25 or discrimination. No witness in this entire trial has said a bad word
1 about him.
2 The documentary evidence in the Prosecution's own case is replete
3 with his tireless efforts to do the right thing. There is simply no
4 evidence upon which this Trial Chamber could find him guilty beyond a
5 reasonable doubt.
6 We're not here to ask you to make fine distinctions or to rely on
7 procedural niceties; the truth is that General Ojdanic is innocent. He's
8 here because Prosecutor Louise Arbour made a political decision to indict
9 the top officials of the Federal Republic of Yugoslavia, as the bombing
10 dragged on in May 1999, as just another weapon in NATO's arsenal.
11 There was no evidence of General Ojdanic's criminal
12 responsibility then, and there is no evidence of it now. He does not
13 belong here. We ask you to grant General Ojdanic's motion for judgement
14 of acquittal and put an end now, please, to this prosecution.
15 Thank you.
16 JUDGE BONOMY: Thank you, Mr. Sepenuk.
17 Mr. Ackerman -- I'm sorry. I gather -- just one moment,
18 Mr. Ackerman.
19 Judge Chowhan has a question for Mr. Sepenuk.
20 JUDGE CHOWHAN: Somewhere in the middle of your learned
21 arguments, you mentioned about the troops being sent to protect the
22 Serbs, VJ troops were being sent. Keeping this in mind, I take it to be
23 a national organisation, and the way you put it and the way I understood
24 it appeared as if a national organisation was only concerned about some
25 of the ethnic groups and not all. And nowhere it was said that the VJ
1 sent troops or men or materiel for any other ethnic group in that way in
2 which you -- which you put it for the troops having gone for protection
3 of one of the ethnic groups.
4 Being a national army it -- what impression was it giving or
5 should it not have given an impression that it belongs to everybody in
6 that sense of the term and the overall tumultuous situation should have
7 been brought to an end not because A was there, B was there, C was there,
8 but it was a national duty for a national organisation to see that it
9 goes down and help anybody without any such feelings as I gathered from
10 this. I mean, this is what you -- if you wish to, rather, explain, this
11 may be useful.
12 MR. SEPENUK: Yes, of course, Your Honour.
13 JUDGE CHOWHAN: I'm most grateful for you taking this question.
14 MR. SEPENUK: Of course.
15 JUDGE CHOWHAN: Thank you, sir.
16 MR. SEPENUK: Your Honour, you said about the middle of my
17 arguments. I'm assuming you're referring to what I had to say about
18 Podujevo, about the presence in Podujevo.
19 JUDGE CHOWHAN: [Microphone not activated].
20 MR. SEPENUK: And the reason I was focusing rather heavily on the
21 Serb population was that the overwhelming majority of the folks there,
22 you know, many of the folks there were Albanian, but the Serbs were
23 leaving the place in droves. And so that was the concern. The concern
24 was to protect these Serbian civilians who were, again, requesting
25 protection from the army.
1 It's not that the army was indifferent to Albanian civilians, but
2 since -- because there was a strong KLA presence there, I think the
3 Albanians certainly were comfortable, you know, in an area where there
4 was a strong KLA presence. And there is nothing to indicate that any of
5 the General Staff certainly had any negative feelings about Albanians or
6 would not have responded, for example, had Albanian citizens protested,
7 because there were very many Albanian citizens who were treated very
8 poorly and very shabbily by the KLA. And in that kind of a situation I
9 would find it really incredible that the Serb forces would not have given
10 assistance under those circumstances.
11 JUDGE CHOWHAN: But there was no such illustration referred to by
12 your good self in your learned discourse to have actually supported this
13 view which you are now holding. Any such occasion where it may have
14 happened for any other ethnic group? I mean, some sort of indication
15 that I thought -- if that was possible. I'm grateful again.
16 MR. SEPENUK: Right. Well, there were all sorts of reports
17 during the trial by the Kosovo Verification Mission of improper treatment
18 of Albanians by the KLA, murders, kidnappings of those thought to be
19 collaborationists. And I think the evidence is quite clear that in that
20 kind of a situation the MUP responded to that. They didn't ignore it,
21 they investigated it and treated it very, very seriously. There were a
22 number of instances, Your Honour, which showed that.
23 JUDGE CHOWHAN: I should say thank you.
24 MR. SEPENUK: Thank you.
25 [Trial Chamber confers]
1 JUDGE BONOMY: Thank you, Mr. Sepenuk.
2 Mr. Ackerman.
3 MR. ACKERMAN: Your Honour, I assume we'll break at 5.30. Is
4 that correct?
5 JUDGE BONOMY: Yes.
6 MR. ACKERMAN: Thank you.
7 Good afternoon, Your Honours. I'm happy to have this opportunity
8 to address you on behalf of General Pavkovic. As you've no doubt
9 noticed, my colleagues have covered a lot of ground that would be
10 appropriate for me to cover when I'm speaking to you only by myself. So
11 I'm not going to go through the process of repeating a number of the
12 things that my colleagues have already expressed to you, many of those
13 things being their analyses of the law which primarily I'm in totally in
14 agreement with.
15 My intention, as I begin, is to adopt at least in some measure
16 the recommendations of Your Honour Judge Bonomy several weeks ago when
17 you said, The 98 bis process is one where really all the Defence has to
18 do is stand up and say the case was not proven, and then it's up to the
19 Prosecutor to -- to make a showing.
20 Now, that paragraph was written by me about five or six weeks
21 ago, and since then a number of pages have -- have come into this
22 process. I still think I can complete my remarks in maybe about an hour,
23 and that's what I'll try to do.
24 I'm not going to go into huge detail about the evidence you've
25 heard in this case. I've watched you pay attention. I've watched you
1 make notes. I don't have to tell you what the various witnesses have
2 said, although there's been a huge amount of material to try to -- to get
3 our hands around. And I'll try to help just a little bit with that.
4 Over a hundred years ago, General William Tecumseh Sherman, a
5 civil war confederate general in the United States said: "War is hell."
6 And it is. Perhaps more so now than then. Almost every day, we hear of
7 the hell of war. We hear about Iraq; we hear about Afghanistan; we hear
8 about Somalia; and Darfur; and Sri Lanka; where things are in many ways
9 similar to what happened in the Kosovo in 1998 and 1999 are going on in
10 front of us today.
11 Although war is hell, it's legal. Was is not illegal. Modern
12 war is very different from the Napoleonic wars that many of us learned
13 about in grade school and high school. They're not wars fought on the
14 battle-fields and the countryside, they're wars that are fought among the
15 civilian population in the villages and in the cities.
16 Most often they're wars these days brought on by insurgencies or
17 terrorists seeking to overthrow a government and take control of a state,
18 rather than war as between two states over territory.
19 This kind of modern warfare certainly describes what we've
20 learned about in Kosovo. And in these kinds of wars, civilians die in
21 numbers that I think we all believe are unacceptable, and that we would
22 change if there was any way we could.
23 Every day we hear about such things. Just yesterday, the BBC
24 reported about an incident in Afghanistan where NATO was attacking a
25 Taleban group, who as usual were mingled among the civilian population,
1 resulting perhaps in the death of as many as 30 civilians. There was no
2 intention on the part of NATO to kill those civilians, but there was an
3 intention to deal with a very difficult situation that is facing those
4 forces in Afghanistan at this time.
5 Modern wars also produce crowds of refugees. That's not the goal
6 of these wars, but it's an inevitable byproduct of them. When a war is
7 fought among the citizenry with modern weapons, what happens is intense
8 fear; intense fear causes persons to flee. Just look at the huge numbers
9 of refugees who have fled the country of Iraq since it was invaded nearly
10 five years ago.
11 Modern military leaders have studied in their schools these
12 modern wars as they were coming up through the ranks in their various
13 military organisations. They learned that a feature of such wars is this
14 mass exodus of civilians from war zones. People run from bombs and guns.
15 I would. You would. Anybody would. Nobody needs to tell us to get out
16 of harm's way.
17 So the mere reality of refugees does not automatically suggest
18 that someone forced them to leave their homes by committing some kind of
19 a war crime. Responsible people make efforts to save themselves, and
20 that's what refugees mostly are doing around this world today. So when
21 we ask, Was it NATO or the KLA or the Serbs or some other factor that
22 forced the people of Kosovo to flee, we could be ignoring the fact that
23 war is hell, and it frightens people, and they run from it.
24 The real answer of why people leave their homes in war is because
25 they're afraid. They're seeking safety. They're looking for a place
1 where bombs are not falling and guns are not firing. We can't expect
2 what happened in Kosovo to be one of these old-fashioned, clean
3 Napoleonic countryside wars. It was modern war, and it was war
4 instigated by terrorists.
5 Every modern war also carries with it atrocities of one form or
6 another. The men who fight these wars are traditionally very young. In
7 some cases, we've seen in Africa even children. It's easy to get young
8 people to fight; that's why our soldiers are young people. They have
9 little sense of their own mortality. They tend to see themselves as
10 bullet-proof, so they'll enter the foray and charge up the hill when
11 asked to do so.
12 And unfortunately, some of them commit war crimes. They do
13 things they know they're not supposed to do. And no matter the effort
14 made by commanders to prevent the rapes and the murders and the beatings
15 and the tortures, they happen in wars. They happen with British and
16 American soldiers in Iraq and Afghanistan; they happen wherever we see a
17 war going on.
18 Because we're human and because we care, we really, when we hear
19 about these matters, want to believe there must be someone who's
20 responsible for this that we can blame and punish. There must be
21 somebody we can find that we can put the onus on for what these youths do
22 when they're handed guns and told to go fight. There must be some evil
23 person who has orchestrated this misbehaviour by these young people.
24 So we begin to look at leaders and try to find some justification
25 for the behaviour of our children. We don't want to believe that our
1 children could do the things we hear about, and so we do things like
2 we're doing here.
3 But what we also know if we look at the major cities of this
4 world, largely in American, Britain, crimes are committed by youth on the
5 streets of those cities. Children with guns, youth committing crimes,
6 youth committing rapes, youth committing murders. They do it every day
7 in the cities of my country. And there, they're not under the direction
8 of anybody, they're just kids committing crimes. That's what they do.
9 Why are we surprised then when they do the same thing in a war
10 zone, when we've made it even easier for them by handing them a gun and
11 lots of ammunition and cutting them loose? It's so easy for them to step
12 over a line.
13 We need to acknowledge that leaders cannot prevent this type of
14 activity. Look at every war that you've ever seen in your lifetime, and
15 no leader has yet been able to prevent this kind of activity. Efforts
16 are made, no doubt, and efforts have been made by the leaders in this
17 case, as Mr. Sepenuk has so thoroughly covered for you. But those
18 efforts are not always successful. In fact, they're not ever successful.
19 I'm sure that the -- the commanders in the Yugoslav Army and the
20 orders they issued are no less than the commanders in the British Army
21 and the American Army issued as they went into Iraq to begin that
22 adventure there.
23 Kosovo is not a World War II story. It was not some rogue state
24 trying to brutally conquer territory. It was a people seeking to
25 preserve a country against attack by well-armed and well-financed
1 terrorists who were seeking to overthrow the government and take control
2 of that part of that state.
3 I want to talk for a moment about joint criminal enterprise
4 because that's a significant issue in this case. I assume most of you
5 would have had an opportunity to take a look at the Appeals Chamber
6 judgement in the Brdjanin case where joint criminal enterprise was
7 discussed at some length. And unusually, the Appeals Chamber relied
8 pretty heavily on some work that our own Judge Bonomy had done earlier
9 regarding joint criminal enterprise.
10 Judge Bonomy had analysed a couple of World War II vintage cases,
11 and those analyses were found to be compelling and helpful by the Appeals
12 Chamber. The first of those, the Justice case. The Justice case
13 involved an accused by the name of Lautz. He was the chief public
14 prosecutor of the people's court, and he issued indictments against
15 Poles, charging them with high treason for leaving their places of work
16 and attempting to escape German -- Germany by crossing into Switzerland.
17 He was following a clear plan of racial discrimination. The Poles that
18 he indicted were all of them sentenced to death and executed. To an
19 extent, he defended on the basis that he didn't execute any of those
20 people. All he did was issue an indictment. But the fact that he took
21 that step made him guilty for the death of those people. But what you
22 see there and what Judge Bonomy saw there was a link and an action by
23 Lautz ultimately resulting in the death of the people that he directly
24 brought indictments against.
25 Rothaug was also convicted for his role in convicting and
1 sentencing to death three Poles and a Jew in conformity with this
2 discriminatory policy of persecution, torture and extermination of the
3 Jewish and Polish races. The defence that the executioners were separate
4 from Rothaug and Lautz was not a defence that was allowed to carry any
5 water. Their responsibility was based on actions performed by them.
6 They ordered prosecutions and executions in furtherance of this plan.
7 You will find no orders by General Pavkovic, in this case, ordering any
8 kind of comparable activity or ordering the commission of any kind of an
10 They also talked about what Judge Bonomy wrote with regard to the
11 Rusha case, Hofmann and Hildebrandt. In response to contentions by the
12 accused, quoting Judge Bonomy, that they did not themselves physically
13 perpetrate any crimes, the Tribunal held that it is no defence for a
14 defendant to insist, for instance, that he never evacuated populations
15 when orders exist signed by him in which he directed that the evacuation
16 should take place.
17 While in such a case the defendant might not have actually
18 carried out the physical evacuation in the sense that he did not
19 personally evacuate the population, he nevertheless is responsible for
20 the action. And his participation by instigating the action is more
21 pronounced than that of those who actually performed the deed."
22 Again, in this case, you'll find no comparable order by General
24 The Brdjanin case discussed this question of the necessity of the
25 Prosecution to prove links between the individual that's charged and the
1 perpetrators who commit the crimes. At paragraph 412, the Appeals
2 Chamber wrote: "As the Prosecution recognises for it to be possible to
3 hold an accused responsible for the criminal conduct of another person,
4 there must be a link between the accused and the crime as legal basis for
5 the imputation of criminal liability."
6 Paragraph 418: "The Appeals Chamber understands that the Trial
7 Chamber's disputed finding was reached out of a concern that it is
8 inappropriate to impose liability on an accused where the link, between
9 him or her and those who physically perpetrated the crimes for which he
10 or she is charged, is too tenuous. The Appeals Chamber shares this
12 Judge Van Den Wyngaert, in a separate declaration in the Brdjanin
13 case, I think sheds significant light on these issues when she wrote at
14 paragraph 4: "The judgement of the Appeals Chamber clearly shows that
15 JCE is not an open-ended formula that allows convictions based on guilt
16 by association. I am in full agreement with the conclusions of the
17 judgement on the doctrine of joint criminal enterprise, where these
18 limits are strictly drawn, based on a careful analysis of customary
19 international law and of the Tribunal's own case law. The link between
20 the accused and the criminal conduct of the principal perpetrator does
21 not follow from the perpetrator's membership of the JCE but from the
22 actual contribution of the accused to the JCE which must be significant."
23 It's not enough, Your Honours, for the Prosecution to show you
24 that crimes were committed. There is no modern war that doesn't involve
25 the commission of crimes. There must be a link between the accused and
1 the perpetrator who committed the crime, as described above, even in a
2 JCE situation.
3 This case is highly unique among the kinds of cases that I was
4 discussing as I started my remarks. And I think maybe, Your Honour, I
5 should go into this after we come back from our break.
6 JUDGE BONOMY: Thank you, Mr. Ackerman.
7 We'll break now and we'll resume at 6.00.
8 --- Recess taken at 5.29 p.m.
9 --- On resuming at 6.02 p.m.
10 [Trial Chamber confers]
11 JUDGE BONOMY: Mr. Ackerman.
12 MR. ACKERMAN: Thank you, Your Honour.
13 I talked about other wars that we're familiar with. World War II
14 lasted for six years. What's going on in Iraq has been going on now for,
15 like, five years. If you look at Kosovo, the crime base for Kosovo
16 covers a period of about five weeks. The whole conflict was 78 days from
17 March 24th until the Serb forces were -- left Kosovo. But the crime base
18 is over a period of about five weeks. That's a very, very short time for
19 high-level commanders to learn about events occurring, to react to those
20 events, to take prevention and punishment measures.
21 The other thing that must be clearly kept in mind was when that
22 conflict ended and the Serb forces left Kosovo, the opportunity to
23 investigate what went on in some of the villages was not there any
24 longer. No more investigation could be done. Serb forces were not
25 allowed into Kosovo after that.
1 For the most part, even though we know crimes were committed,
2 murders were committed in those villages, we don't know who committed
3 those crimes. The Prosecution has spent years trying to find out who
4 committed the crimes, largely without success, but argues that a general
5 like Pavkovic so far removed from the action should have known about
6 those crimes and who committed them almost instantly. That defies all
7 logic. After many years of investigation, eight years, what the
8 Prosecutor's been able to tell us in most cases is the colour of the
9 uniforms worn by the perpetrators and nothing more.
10 We need to understand that people who commit war crimes don't go
11 around bragging about their crimes and even their immediate superiors,
12 the company commanders, are not all that anxious to report that people
13 under their command committed crimes for fear of what might happen to
14 them. We know that crimes notoriously are covered up by their
15 perpetrators whether they're committed in war or on the streets of the
16 cities of the world.
17 You must ask when did General Pavkovic learn of the crimes that
18 make up the crime base in this case? You're not going to find that out
19 from the evidence you've heard. Perhaps he only learned it only when he
20 read the indictment. The Prosecution must prove that he had knowledge of
21 these crimes, and that he failed to prevent and punish them. We must ask
22 what he failed to do. Where in the evidence is there something that
23 General Pavkovic should have done that he failed to do?
24 You have before you an indictment charging my client,
25 General Pavkovic, with the commission in various indirect ways of crimes
1 from the year 1999. You've heard evidence of criminal activity in 1999
2 from residents of villages in Kosovo, some credible, some not so
3 credible, but none of them implicate General Pavkovic in any way.
4 What you've mostly heard, however, strangely, has been about
5 matters that occurred in 1998. Witness after witness after witness could
6 only testify about 1998. Virtually all of the international witnesses
7 you've heard could only give evidence about 1998. If the OTP has a case
8 against anyone for 1998 events, they have no indictment for 1998 events.
9 They do have an indictment for 1999, but they have no case.
10 One of the things that kept cropping up - and I suggest it was
11 virtually a red herring in this case - was that whole thread of evidence
12 trying to establish that General Pavkovic was operating outside the chain
13 of command in 1998. First of all, it's 1998. Whether he was operating
14 outside the chain of command in 1998 seems to me to have little effect on
15 the indictment charges for what happened in 1999.
16 It should be clear to you that the Prosecution's allegations in
17 this regard have failed. The evidence is, at best, speculative and, at
18 worst, simply false.
19 It appears that General Perisic may have started making a case
20 for his own absolution very early on by making false allegations against
21 others, maybe not. I can't offer any more proof of that than the
22 Prosecution has offered you that General Pavkovic was operating outside
23 the chain of command.
24 If Perisic was as concerned as his letter to Milosevic indicates
25 he was, he could have replaced Pavkovic immediately. He was his
1 commander. He had absolute power to replace him, to remove him, but he
2 didn't do that.
3 On the contrary, on 10 January 1999, General Samardzic, commander
4 of the 3rd Army, rated General Pavkovic as exceptional. That's in 4D136.
5 And Vasiljevic told you that that was the highest possible rating at 8810
6 of the transcript. It's simply not possible that Samardzic would have
7 rated General Pavkovic excellent if he was operating outside the chain of
8 command, as General Perisic was contending.
9 It's contended that, again by General Perisic, that Pavkovic
10 would meet with Milosevic outside the chain of command, privately,
11 secretly. The evidence presented on that was Vasiljevic said he saw him
12 emerge from the White Palace at one point and concluded that he must have
13 been meeting with Milosevic. And then later on in his testimony,
14 Vasiljevic said, well, Milosevic had confirmed that he had met with
15 Pavkovic, but that it was a private matter.
16 Again, this has the characteristics of a red herring because it
17 makes no difference if Pavkovic was meeting with Milosevic unless the
18 Prosecution can show you that something came from those meetings that's
19 relevant to the crimes charged in this indictment, and no showing has
20 been made of that at all. There's no showing that General Pavkovic did
21 something that's criminal as a result of a meeting that he had secretly
22 with Milosevic.
23 Why is this issue of outside the chain of command even before us
24 in this case? The Prosecution contends that the VJ was being used
25 illegally in Kosovo in 1998. And even though this evidence doesn't go to
1 directly prove any allegation in the indictment, it's the position of the
2 OTP that its evidence from which one might conclude, I guess, that if
3 Pavkovic was operating illegally and outside the chain of command in
4 1998, he might also have been doing so in 1999. If that's the OTP
5 position, this is not evidence capable of supporting a conviction, as
6 required by the rule.
7 1998 actions do not provide direct proof of the commission of
8 crimes during the indictment period.
9 The key documents dealing with this issue have been mentioned by
10 Mr. Sepenuk in his presentation: 4D137, the Perisic directive on use of
11 the VJ of 28 July 1998. I'll not go into it further since Mr. Sepenuk
12 did so.
13 4D140, July 29, General Ojdanic follows up that directive from
14 Perisic and issues an order -- General Samardzic, I'm sorry, issues an
15 order implementing the Perisic directive of the previous day, ordering
16 the use of the VJ in exactly the way that he told Milosevic in his letter
17 was not appropriate and illegal.
18 The other document that was not mentioned by Mr. Sepenuk is
19 4D138, the Rules of Service of the Yugoslav Army that were in force in
20 July of 1998. Paragraph 473 of that document makes it clear that army
21 units may be used to combat outlawed, sabotage, terrorist, and other
22 armed enemy groups. No declaration of emergency, imminent threat of war,
23 or state of war is a prerequisite to the operation of this rule.
24 Contrary to the allegations and even testimony of some witnesses, there's
25 nothing in the constitution of the Federal Republic of Yugoslavia that
1 requires the army operate only in the border belt.
2 There's no evidence in this record that General Pavkovic ordered
3 anything illegal to be carried out, or that he learned of crimes and took
4 no action upon them. One key document that is important in understanding
5 the attitude of General Pavkovic and what he did is P1011.
6 At page 80 of that document, you find an order by Pavkovic as the
7 3rd Army commander, a very urgent order by its terms, to treat humanely
8 and spare the lives of members of enemy armed forces who surrender and
9 lay down their arms or who are defeated, ordering compliance with the
10 Geneva Convention.
11 On the 17th of April, 14 days later, P1011, page 90, Pavkovic
12 issues a warning that during the conduct of combat operations all
13 provisions of international law of war and the instruction for the VJ
14 members on the procedure in preparing and executing their tasks in Kosovo
15 shall be fully implemented. Commands and professional organs shall
16 undertake effective measures to prevent any forms of criminal acts as
17 regulated, and then cites an order from the General Staff in that regard.
18 When we talk about military prosecutors and military courts and
19 what was done to investigate and punish, one thing that must be kept
20 firmly in mind is the constitution of the Federal Republic of Yugoslavia
21 in that regard. The document is P856, it's Article 136, which provides
22 that the president of the Federal Republic of Yugoslavia appoints
23 military court judges and military prosecutors. They're appointed
24 outside the chain of command of the Yugoslav Army. A commanding general
25 of the Yugoslav Army has maybe nothing more than an advisory role in the
1 appointment of these judges and prosecutors, and there's a reason for
2 that. Judges and prosecutors in the military must operate independently,
3 just like judges and prosecutors in the civilian system must operate
4 independently. There wouldn't be any justice if commanders could order
5 prosecutions or order prosecutions stopped or things of that nature.
6 So what -- and Mr. Sepenuk even gave you some law in this regard.
7 What's required of a commander if he learns of the commission of a crime
8 is to report it to the military justice authorities, and after that he's
9 done his job and it's up to them to go forward with it.
10 The Prosecution witness Pesic testified that the Pristina Corps
11 had its own separate military court and Prosecutor. The military
12 district prosecutors were not subordinated to this Pristina Corps units.
13 The Pristina Corps court and prosecutor, he said, were in operation from
14 day one and processed a number of cases both during and after the
15 bombing. You'll find this at 7275 through 7277.
16 Touched upon by Mr. Sepenuk was Vasiljevic's investigation into
17 crimes in Kosovo. You'll see that at page 8749. He describes how his
18 investigations in Kosovo revealed that all crimes were being reported and
19 processed. The only deficiency was in not reporting on up the chain of
20 command. He said the feeling on the part of his security officers was
21 that these crimes had been properly processed and that no further
22 reporting was necessary.
23 However, even in that milieu, you have to -- you have to
24 understand what Vasiljevic is saying. He's saying that his security
25 officers in Kosovo didn't report up through the security chain of
1 command. He's not talking about the Pristina Corps not reporting up
2 through the chain of command or the 3rd Army not reporting up through the
3 chain of command.
4 And again, Mr. Sepenuk has given you many examples of reports
5 coming from the Pristina Corps to the 3rd Army, which also were copied to
6 the General Staff. He referred to 5D84, which I refer you to just as an
7 example. And then he also referred to a number of 3rd Army reports that
8 went up to the General Staff talking about activities of the military
9 prosecutor's office and what they were doing.
10 At page 8750, Vasiljevic says this: "But I must say that those
11 cases were not covered up or concealed. That was my impression. They
12 didn't report it the way I suggested because the cases had already been
13 prosecuted and processed. They simply thought that the problem had been
14 resolved, the perpetrators had been arrested, and that's why they
15 committed this omission in reporting."
16 What did General Pavkovic do that will help you understand that
17 the case against him is nonexistent? One thing you learned, both from
18 testimony in the case and from your review of the -- the Coo material,
19 was that General Pavkovic prior to his indictment was involved in
20 assisting the Prosecution by turning over a large number of documents
21 from the VJ to the Prosecution for their investigation. That's not
22 something that is done by one with a guilty mind who believes that those
23 documents will point to him in any way.
24 You'll recall General Ojdanic summoning him to a meeting in
25 Belgrade that was held on the 16th of May regarding reports of crimes
1 being committed in Kosovo. And at that meeting, General Pavkovic said,
2 I've looked into it. There's a dispute about who committed those crimes,
3 and we really need to get to the bottom of it. I recommend we have a
4 commission appointed to look into it immediately. Ojdanic agreed with
5 that, that that needed to be done.
6 That's not something you recommend, that's not something you try
7 to get done if you believe the investigation by that commission is going
8 to point at you.
9 The next day they went to meet with Milosevic; Pavkovic and
10 Ojdanic there, Sainovic was there. They recommended to Milosevic that
11 what was needed was a commission, a joint commission, to go and
12 investigate this commission of crimes in Kosovo. Ojdanic agreed,
13 Sainovic agreed; unfortunately, Milosevic ignored the recommendation and
14 did not approve of that. Nobody knows why. Nobody knows why he didn't
15 think that was a good idea. But as a result of his rejection, it didn't
17 These things go directly to the intent and knowledge of Pavkovic,
18 paragraph 54 of the indictment. It's not likely he would make this
19 recommendation if he thought it would point to him, and the thing you
20 must understand about these two meetings on the 16th and 17th of May is
21 these were secret meetings. These were not open meetings. These were
22 not meetings where there was press there. These were not meetings where
23 the minutes were going to be distributed to the world. These were
24 secret. Nobody was ever supposed to know about these meetings. And so
25 when Pavkovic in these meetings recommends a commission, he's being
1 genuine, he's being honest, and he's being serious.
2 We can see that attitude as early as November 1998 in another
3 secret meeting. This was a meeting of the interdepartmental staff for
4 the suppression of terrorism that met on the 2nd of November; it's
5 Exhibit P2166. Pavkovic made a report at that meeting regarding the
6 efforts that had been made in 1998 to suppress -- the successful efforts
7 to suppress terrorism in Kosovo.
8 On page 3, he said this -- and he was referring to a plan that
9 had been put together to suppress terrorism in Kosovo during the summer
10 offensive in 1998. Page 3, he said this: "As may be concluded, our plan
11 was not to kill all the Siptars or expel them from Kosovo, but to destroy
12 the main terrorist forces and separate the terrorists from the people."
13 And, Judge Chowhan, that may be a partial answer to your question
14 to Mr. Sepenuk, showing Mr. Pavkovic's concern for the Albanian people,
15 that they separate the terrorists from them to protect them from those
17 JUDGE CHOWHAN: Thank you.
18 MR. ACKERMAN: And this pronouncement by Pavkovic, a plan not to
19 kill or expel, occurs one month after the Prosecution alleges that this
20 joint criminal enterprise came into existence; paragraph 20 of the
22 Looking at the crime base in this case, it seems clear that most
23 of the crimes were in late March and the month of April. By May,
24 Pavkovic hears something about them, meets with Ojdanic, then Milosevic,
25 recommends the commission. He believes they were mostly committed by
1 non-VJ personnel, over whom he had no power to recommend prosecution.
2 Thus, he wanted an independent commission to make sure that they would
3 all be properly investigated and prosecuted.
4 Milosevic's rejection of the Pavkovic recommend, I suggest, is
5 highly exculpatory of Pavkovic, Ojdanic, and Sainovic. Those who had no
6 fear welcomed an investigation; the one who did rejected it.
7 It's difficult to imagine what more Pavkovic could have done. He
8 drafted orders making it clear that he would not tolerate the commission
9 of crimes. He made serious and successful efforts to get persons found
10 to have committed crimes referred for prosecution. He tried to get this
11 independent commission to investigate and was blocked in that regard.
12 I want to now talk for just a few moments about the Prosecution's
13 allegations regarding a Joint Command. The allegation of the existence
14 of a Joint Command is a key part of the Prosecution's case for JCE and
15 for Pavkovic's responsibility for crimes committed by all Serb forces,
16 and I suggest to you this allegation fails.
17 You can look through the evidence as long as you want to. You
18 won't find any reports from any units to any Joint Command in the record
19 of this case. The reports, the after-action reports, combat reports,
20 remained in their normal chain of command throughout the indictment
21 period in 1999.
22 Reports addressed to a Joint Command would be a strong indication
23 of the existence of that command, but there are none. There are, I
24 believe, 13 Joint Command orders and decisions from the year 1999. They
25 are P1966, P2031, P2015, P1968, P1969, P2003, P1970, P1973, P1974, P1975,
1 P1976, P1878, and P1977.
2 There are a number of curious things about these documents. Five
3 of them range from the 22nd to the 28th of March; seven days. The other
4 eight are the 14th, 15th, 16th, 2nd, and 9th of April; five days. So
5 they all cover a period of only ten days -- or there are only ten days
6 upon which they are issued.
7 If you look at normal orders, action orders, orders to -- from
8 the Pristina Corps, for instance, to engage in an action, at the end of
9 that order -- at the end of almost any order that you'll see in this
10 case, you'll see a distribution list where this order was distributed.
11 If you look at the supposed Joint Command orders, there isn't any
12 distribution list; it doesn't exist. There's no indication they were
13 distributed to anyone.
14 As I said, there are no after-action reports submitted to the
15 Joint Command, even though these supposed Joint Command orders said that
16 they should be. Where they're submitted is in the normal chain of
17 command from the units to the Pristina Corps.
18 There's no signatures on any of these documents; none of them are
19 signed. And with no exception, if you look for the action order
20 contained in these documents, you will see the language: "I have
21 decided ..." That's really significant. "I have decided" means that
22 that order is being drafted and decided by an individual, not by some
23 Joint Command.
24 Again, if you look at them, you will see that the only activity
25 ordered in those orders is activity by units of the Pristina Corps; no
1 activity by any MUP forces. These documents are simply not evidence of
2 any Joint Command in operation during the indictment period in this case.
3 What was going on, what these documents clearly show, because after the
4 language "I have decided ...," you generally see the language: "... to
5 support MUP forces." And what this is, is Pristina Corps orders where it
6 was necessary for them to support MUP forces. So they were, at best, a
7 coordination document, but certainly no evidence of any operating Joint
8 Command that was giving orders to both VJ and MUP units.
9 And you heard about that from Witness K25, who served in the PJP
10 in Kosovo in 1998/1999. He said at page 2365 -- it's actually P2365 at
11 page 21, that's his statement: "There was never any occasion in my
12 experience where the VJ gave orders to the MUP, and although I'm aware
13 that during a state of war under our laws the MUP could be subordinated
14 to the VJ, this did not happen as far as I'm concerned."
15 He goes on to say that from his experience, it was the MUP that
16 was conducting combat operations against the KLA, while the VJ concerned
17 itself primarily with deploying against the possibility of a NATO ground
18 invasion. The VJ did provide heavy weapons support on occasion.
19 I think some of the most crucial testimony you've heard in this
20 case, and most credible in many ways, was the testimony of Shaun Byrnes,
21 who came near the end. The thing that's remarkable about Shaun Byrnes in
22 terms of the credibility of his testimony is that he's retired, he
23 doesn't work for any government anymore. He's free to say what he wants
24 to say, to tell you the truth about what he observed and what he saw and
25 what he concluded from his time in Kosovo.
1 At page 12198, he was asked by me: "I think with regard to your
2 knowledge of General Pavkovic, what you've said about him was that he was
3 direct and professional, and at one point you referred to him as a
4 soldier's soldier who did not get involved in lectures on Serb history or
5 politics. Is that a fair statement?
6 "A. Yes, Mr. Ackerman, that's a fair statement. But let me
7 point out for the record, I met General Pavkovic only once but I stand by
8 what I said."
9 With regard to the VJ:
10 "Q. And with regard to the VJ, as you pretty much told us here
11 today, your view of the VJ was that it conducted itself both
12 professionally and honourably, both before and during the conflict, and
13 in fact what you said about the shelling that was done with the heavy
14 weaponry of the VJ was that it was not intended to cause casualties but
15 more in the nature of causing harassment or fear. Is that fair?
16 "A. That's what I said for the record earlier, yes."
17 Now, that ties right in from what we heard from some of the
18 villagers, that the shells were going over the tops of their villages and
19 not landing in them, like they were shelling something across on the
20 other side of the village. That's these kinds of new warfare I was
21 talking about earlier, where there's a great need to try to separate the
22 civilian population from the combatants, and that's one way you might do
24 Back to the Joint Command issue, in July 1998 while Pavkovic was
25 commander of the Pristina Corps and Samardzic was the 3rd Army commander,
1 we got another clue about how the army viewed this supposed
2 Joint Command. You'll recall that in Exhibit 4D91, Samardzic authorises
3 Pavkovic to attend Joint Command meetings; however, before attending, he
4 was required to brief the Chief of Staff of the 3rd Army about proposals
5 that would be made at that meeting for the engagement of forces. And
6 then only with the consent of the Chief of Staff could he attend the
7 meeting and approve.
8 After the meeting, he was then required to again report to the
9 Chief of Staff on any proposals that were accepted and any subsequent
10 requests which might diverge from previous proposals, and seek consent
11 from General Samardzic or the Chief of Staff for those requests. He was
12 required to inform the Joint Command of the 3rd Army about decisions
13 regarding the requests.
14 Clearly, even in 1998, the Joint Command could only propose joint
15 participation by the army, and the 3rd Army command would have to
16 approve; it could not be ordered by the Joint Command.
17 The OTP alleges that General Pavkovic was involved in some kind
18 of cover-up. In its pre-trial brief with regard to JCE, the Prosecution
19 suggested that the accused took steps to prevent investigations and
20 engaged in a considerable operation to conceal the commission of crimes
21 in Kosovo. These efforts are said by the OTP to be a reflection of
22 guilty knowledge.
23 Remember what Vasiljevic said after investigating in Kosovo: "I
24 must say that those cases were not covered up or concealed."
25 There's simply no evidence before you at all that
1 General Pavkovic took any steps whatsoever to conceal any crimes in
2 Kosovo; the evidence is contrary, calling for a commission to try to
3 bring light to them.
4 Count 1 and Count 2 deal with deportation and forcible transfer.
5 It's clear that people were leaving Kosovo in large numbers; it's not
6 clear why they were doing so. There's evidence that they left because of
7 fear of NATO bombing; there's evidence they left because the KLA told
8 them to leave; there's evidence they left because of fighting between KLA
9 and Serb forces in their area; there's evidence they left because they
10 were told to do so by Serb forces; there's evidence they left because
11 they were told to do so by Serb civilians.
12 What there is not is evidence capable of supporting a conviction
13 of Pavkovic for deportation as charged in this count of the indictment.
14 There's no order from Pavkovic ordering deportation of people.
15 K25, again the PJP soldier: "Whenever we have an operation in a
16 village, there are always going to be civilians who are taken out of the
17 combat activity zone. We call that taking the refugees and placing them
18 behind the line of blockade." That's in P2365, page 9.
19 With regard to the KLA, evidence from witnesses that the KLA told
20 people to leave their villages, evidence that the KLA were trying to get
21 sympathy from the international community, see P680, the OSCE fusion
22 working papers. That's P689.
23 Halimi left Zabar because a KLA member told him he should leave
24 for his own safety. That's transcript P4447.
25 The KLA used people as human shields. That was Zyrapi, 2448.
1 Judge Bonomy asked Zyrapi at page 5949 of the transcript that --
2 said to him: "Your answer suggests that you increased the risk by
3 keeping the population in the area where the KLA are in control."
4 Counts 3 and 4 are murder counts. For 98 bis purposes, murders
5 have been proven; however, there's no evidence capable of supporting a
6 conviction that shows that any murders were committed by forces under the
7 command and control of General Pavkovic or with his encouragement or
8 support or on his order.
9 Persecutions, Count 5, there's no evidence capable of supporting
10 a conviction that any crime charged in this count was committed by forces
11 or persons under the command or control of General Pavkovic or with his
12 encouragement or support.
13 As to the responsibility of General Pavkovic under 7(1),
14 Mr. O'Sullivan has accurately stated the law in his presentation. He's
15 charged with ordering, and there's no evidence that he ordered the
16 commission of any crimes. He's charged with planning, and there's no
17 evidence that he planned the commission of any crimes. He's charged with
18 instigating, and there's no evidence that he instigated the commission of
19 any crimes. And there's no evidence that he aided or abetted in any
21 As to 7(3), there's no evidence that General Pavkovic from his
22 position of authority as 3rd Army commander failed in any way to prevent
23 or punish the commission of crimes by persons under his control. The
24 evidence is that he did all that could be expected or is required of a
25 person in his position.
1 All international witnesses who met him gave you a very positive
2 assessment of him: a good soldier, a competent soldier, direct, a
3 soldier's soldier.
4 All the Prosecution can give you in terms of evidence against
5 General Pavkovic is what I call a might-have/must-have/could-have
6 argument, and that doesn't work, even at this stage of the case. This
7 evidence fails and is not capable of supporting a conviction, and you
8 should acquit General Pavkovic on all the counts against him.
9 Thank you so much for your attention.
10 JUDGE BONOMY: Thank you, Mr. Ackerman.
11 [Trial Chamber confers]
12 JUDGE BONOMY: Mr. Bakrac, are you anxious to start this evening?
13 MR. BAKRAC: [Interpretation] Your Honours, I was just wondering
14 whether it might be superfluous for me to spoil both your evening and
15 tomorrow. Perhaps it might be best if I were to spoil only tomorrow.
16 JUDGE BONOMY: Well, you've already succeeded in spoiling my
17 evening by not -- by not reaching 7.00. So you can complete the picture
18 tomorrow, which will be at 9.00.
19 MR. BAKRAC: [Interpretation] I will make up for the loss of time
20 tomorrow, I promise.
21 JUDGE BONOMY: Very well. We'll rise now, and we'll sit at 9.00
23 --- Whereupon the hearing adjourned at 6.48 p.m.,
24 to be reconvened on Thursday, the 3rd day of
25 May, 2007, at 9.00 a.m.