1 Tuesday, 6 May 2008

2 [Open session]

3 [Prosecution Closing Statement]

4 [The accused entered court]

5 --- Upon commencing at 2.15 p.m.

6 JUDGE PARKER: Good afternoon. Could the case be called.

7 THE REGISTRAR: Good afternoon, Your Honours. This is case

8 number IT-04-82-T, The Prosecutor versus Ljube Boskoski and Johan

9 Tarculovski.

10 JUDGE PARKER: Thank you.

11 We commence today the final submissions of the three parties on

12 this trial.

13 Mr. Saxon.

14 MR. SAXON: Good afternoon, Your Honours. Good afternoon to my

15 learned colleagues.

16 Your Honours, before we begin our formal submissions today, the

17 Prosecution would like to take a moment to express its gratitude to,

18 first of all, the interpreters and other members of CLSS who have

19 laboured to ensure that the courtroom interpretation and the translation

20 of documents in this case have been accurate and comprehensive.

21 We would like also express our appreciation to the legal officers

22 of the Trial Chamber, who have skillfully and patiently assisted both the

23 Prosecution and the Defence to ensure that the trial proceeded as

24 smoothly as possible; to the registry officers, in particular

25 Ms. Guduric, without whom it would have been impossible to view, create,

1 and record the thousands of exhibits that have become part of the record

2 of there trial.

3 And, finally, Your Honour, we would like to express our

4 appreciation to our long-suffering court reporter, Miss Ogston, who has

5 done a wonderful job recording the transcript of these proceedings and

6 who has patiently tolerated attorneys, like myself, who spoke too fast,

7 too softly, and sometimes not very clearly.

8 To all, the Prosecution expresses its sincere appreciation for

9 the work they have done during the length of this trial.

10 Your Honour, I will take a moment to explain the order and

11 structure of the Prosecution's submissions today. The Prosecution has

12 divided its oral submissions into five parts.

13 First, Mr. Dobbyn will commence with submissions about the

14 pattern of crimes that occurred in Ljuboten and Skopje from the 12 to

15 14th of August, 2001.

16 Then, Ms. Valabhji will discuss the evidence of the criminal

17 responsibility of Mr. Tarculovski, pursuant to Article 7(1) of the

18 Statute.

19 I will follow Ms. Valabhji, and I will make submissions about the

20 evidence of the criminal responsibility of Mr. Boskoski, pursuant to

21 Article 7(3) of the Statute.

22 Ms. Regue will discuss the evidence proving that an armed

23 conflict existed in Macedonia from January through September 2001.

24 And, finally, Mr. Dobbyn will make submissions concerning the

25 appropriate sentences for the accused, should the Trial Chamber find one

1 or both of them guilty.

2 Your Honours, in order to maintain the integrity of evidence

3 provided in private or closed session, or exhibits admitted under seal,

4 the Prosecution will occasionally request that the proceedings move into

5 private session. In order to remain in public session as much as

6 possible, the Prosecution may refer to pages of the transcript, without

7 mentioning the name of the witness who gave that testimony.

8 Now, with your leave, I will give the floor to Mr. Dobbyn first,

9 Your Honours.

10 MR. DOBBYN: Good afternoon, Your Honours.

11 As Mr. Saxon has explained, I will be speaking about the pattern

12 of crimes committed in Ljuboten from the 10th to the 12th of August 2001,

13 and I will be happy to respond to any questions that the Trial Chamber

14 may have either during my submissions or when I'm finished.

15 As a preliminary matter, the Prosecution has prepared an

16 annotated panoramic photograph which, with the leave of the Trial

17 Chamber, we will seek to use as a visual aid during our submissions. We

18 will not be seeking to tender the photograph, nor will we be asking that

19 it be given any evidentiary value. It is simply as an aid to our to save

20 time and for the sake of clarity. It has been provided to the Defence,

21 and I hope there will be no objection to the use of this photograph.

22 Your Honours, the evidence establishing the pattern of crimes is

23 discussed in detail in the Prosecution's final brief. I don't intend to

24 repeat much of what is in the final brief. I will simply touch on some

25 pertinent facts, and I will use the remainder of my time to address

1 arguments that have been made by the Defence counsel in their respective

2 final briefs.

3 Now, at this point, I would like to call up the panoramic

4 photograph that we have prepared, which has ERN N005-8308.

5 Your Honours, shortly after 8.00 a.m. on 12 August 2001, two days

6 after the mine incident at Ljubotenski Bacila, a police unit led by Johan

7 Tarculovski entered the north-western end of Ljuboten from the direction

8 of Ljubanci, and this is shown in the panorama photograph with the red

9 line. The path the police unit took came from the right of the picture

10 moving to the left.

11 Your Honours, the terror and the cruelty that this police unit

12 inflicted upon the civilians of Ljuboten over the next five or so hours

13 is simply but starkly illustrated by the words of Witness M-017, as he

14 said at page 630 of the transcript: "I don't know how to describe it. I

15 wouldn't have done what they did to us to an animal."

16 The senseless brutality and the unlawfulness of this tactic was

17 apparent right from the start with the murder of Rami Jusufi. Two

18 eye-witnesses, Elmaz and Zenep Jusufi, have given evidence that at

19 approximately 8.20 a.m., members of Tarculovski's police unit opened the

20 gates and entered their yard, and this location is shown by the point

21 marked with a red "1" on the panorama.

22 Both of these witnesses testified that their son, Rami Jusufi, a

23 33-year-old ethnic Albanian, was asleep in his bed when the police

24 arrived. They both gave evidence that he awoke and he ran to close the

25 door, and they both gave evidence that when we reached the door he was

1 shot by at least one policeman in their yard.

2 I would ask for Exhibit P4 to now be called up.

3 Your Honours, at the time that Rami Jusufi was shot, he was

4 unarmed; and as we can see from this photograph, he was wearing a light

5 agree T-shirt and blue jeans.

6 Crucially, Peter Bouckaert of Human Rights Watch inspected the

7 scene on 23rd of August, and what he found corroborated the Jusufis

8 version of the events. He found that the gate to the yard had been blown

9 open with explosives, he found bullet casings lying in the yard, and he

10 found bullet holes in the front door. This can be found in Exhibit P352,

11 the Human Rights Watch report, at the page with ERN U000-0104.

12 Bouckaert also found a pool of blood on the carpet just inside

13 the front, and this is the same location where the Jusufis say their son,

14 Rami, was standing when he was shot. Bouckaert found no indications that

15 there had been any firing from the inside the house, and I refer to his

16 92 ter statement, Exhibit P322, at paragraphs 54 to 55.

17 Now, counsel for the accused have sought to discredit the

18 evidence of Zenep and Elmaz Jusufi. They have pointed to apparent

19 inconsistencies in their testimony. Counsel for the accused Boskoski has

20 gone even further, making the novel argument that the consistencies in

21 their evidence renders their evidence unreliable, as it's apparently an

22 indication that they must have discussed their testimony together, while

23 at the same time saying that any inconsistencies must be proof that

24 they're not telling the truth. This is at paragraph 291 of the Boskoski

25 final brief.

1 Your Honours, the fact is that on all material points, Zenep and

2 Elmaz Jusufi gave consistent and truthful evidence, and that evidence

3 proves that Rami Jusufi was an unarmed civilian taking no part in the

4 hostilities. It proves that he was shot and he was killed by members of

5 Tarculovski's police unit as he stood in the doorway of his home.

6 Your Honours, the Prosecution has satisfied its burden of

7 proofing the murder of Rami Jusufi as charged in the indictment.

8 After the murder of Rami Jusufi, the police unit then moved on to

9 the upper eastern part of Ljuboten arriving at the houses of

10 Adem Ametovski and Zija Ademi.

11 I would ask that the panoramic photograph be brought back up.

12 And, Your Honours, the location I'm referring to now is shown

13 with the red number "2" on the panoramic photograph. At these two homes,

14 a number of villagers, all unarmed and all ethnic Albanian, had taken

15 cover in the basement of these two houses. They had taken cover from the

16 police ground attack and from the shelling from the army positions, and I

17 refer to paragraph 95 of the Prosecution's final brief.

18 The police ordered these men out of the basements. They made

19 them lie down near the main gait where they beat them with boots, fists,

20 and rifle-butts. This is paragraph 96 of the Prosecution's final brief.

21 The police tortured some of the men with burning pieces of wood and they

22 even carved a cross into the back of one man, Ismail Ramadani, as he lay

23 on the ground. That is in paragraph 98 of our final brief.

24 And, Your Honours, I would ask that we move briefly into private

25 session at this point.

1 JUDGE PARKER: Private.

2 [Private session]

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 [Open session]

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

12 MR. DOBBYN: The Trial Chamber, over the course of this trial,

13 has also heard evidence of the murder at this particular location of two

14 more ethnic Albanians, Sulejman Bajrami and Muharem Ramadani. In the

15 case of Sulejman Bajrami, during the beatings and after a policemen

16 kicked him in the head as he lay on the ground, he stood up, groaning in

17 pain, and started to move away. He was allowed to walk for approximately

18 ten metres before at least one policemen shot and killed him.

19 The remaining detainees were then made to match towards Ljubanci.

20 As they moved off, two elderly men, Muharem Ramadani and Aziz Bajrami,

21 were left behind at the gate to the Ametovski house. However, the

22 evidence indicates that at least one police officer shot at these two

23 unarmed elderly men killing Muharem Ramadani. That could be found in

24 paragraph 100 of the final brief.

25 Again, the Defence have sought to discredit this evidence. With

1 regards to the murder of Sulejman Bajrami, counsel for Tarculovski have

2 suggested that there is conflicting evidence about how he died. They

3 suggest that the possibility could not be excluded that he was killed by

4 cross-fire or by so-called friendly fire; although, they do acknowledge

5 that the police units that they accept was on the ground in Ljuboten may

6 also have killed him. I refer to paragraph 260 of the Tarculovski final

7 brief.

8 With respect, Your Honours, there is no conflicting evidence

9 here. The only reliable evidence before the Court is that the police

10 unit killed Sulejman Bajrami; anything else is pure conjecture. Counsel

11 for both accused also contend that Bajrami was attempting to escape and

12 was, therefore, a legitimate target for the police. I refer to

13 paragraph 264 of the Tarculovski brief and paragraphs 299 to 302 of the

14 Boskoski brief.

15 This argument is flawed on a number of levels. First, the

16 evidence shows that Sulejman Bajrami was an unarmed civilian. He was not

17 taking an active part in hostilities; therefore, he was not a prisoner of

18 war. He was an unlawfully detained civilian. Second, he got up and he

19 moved away out only after he'd beaten and kicked in the head while lying

20 on the ground. He was not attempting to escape custody. He was trying

21 to end the vicious beating that the police were giving him.

22 Furthermore, the eye-witness testimony is clear that the police

23 allowed Bajrami to move away. They made no effort to stop this dazed,

24 unarmed man from leaving. There were no cries for him to stop; instead,

25 they allowed him to move away, watching him go, before simply shooting

1 him. I refer to paragraph 97 of the Prosecution's final brief.

2 Your Honours, if we could move briefly into private session

3 again.

4 JUDGE PARKER: Private.

5 [Private session]

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 [Open session]

18 THE REGISTRAR: Your Honours, we're in open session.

19 MR. DOBBYN: The scenario which I have just described is

20 corroborated by Henry Bolton, who testified that his examination of

21 Bajrami's body lead him to the conclusion that Bajrami was shot from

22 close range while his body was on or close to the ground. This is at

23 page 1809 of the transcript.

24 The evidence shows that what took place was the execution of a

25 wounded man lying on the ground. Even if he had been taking active part

1 in hostilities, which the Prosecution does not concede, and even if he

2 been trying to escape, what took place was simply murder.

3 The evidence regarding the killing of Muharem Ramadani is equally

4 unequivocal. The only evidence before this Court is that he was killed

5 by the police at the gate to the Ametovski house. Counsel for Boskoski

6 has suggested that cannot be ruled out that Ramadani was killed by fire

7 from the army positions or by NLA position, and my learned colleague cite

8 from Henry Bolton testimony to indicate that the bullet that shot

9 Ramadani could have come from as far as 150 metres away. This assertion

10 is in paragraph 304 of Boskoski's final brief.

11 With respect, Your Honours, this passage that they cite comes

12 from a discussion of Sulejman Bajrami, not Muharem Ramadani, and it is

13 simply describes the line of site around Bajrami that Bolton used as the

14 starting point for his analysis of the distance from which Bajrami was

15 shot. I refer to the transcript page 1809.

16 In fact, Bolton's opinion was that Muharem Ramadani, like

17 Sulejman Bajrami, had been shot from close range. I refer to Exhibit

18 1D24, with the page with the ERN N001-5357.

19 Then, in their final briefs, counsel for both accused also seek

20 to justify the murders of Sulejman Bajrami and Muharem Ramadani and the

21 cruel treatment of the 11 other men taken from the basement by alleging

22 that all these men are in some way actively engaged in hostilities. In

23 support of this theory, our learned colleagues refer to a gun and

24 ammunition found in the basement of the Ametovski house. They refer to

25 the evidence of Henry Bolton on this point at pages 1701 and 1702.

1 They insist that this evidence proves that these men were

2 shooting at the Macedonian security forces. In fact, Henry Bolton's

3 evidence was that this gun that was found was a shotgun of the type used

4 for hunting birds. It was not a high-velocity rifle of the type used in

5 combat. This is it at page 1702 of the transcript. He is also gave

6 evidence that this shotgun was just one of several items, and a number of

7 items that appear to have been in the basement for sometime, and that

8 they were not signs that it had been hidden or rapidly discarded or that

9 had been fired any time recently. I refer to his 92 ter statement at

10 paragraph -- sorry, Exhibit P236.1, paragraph 17.

11 THE INTERPRETER: Interpreters kindly ask the Prosecution to slow

12 down.

13 MR. DOBBYN: Clearly, Your Honours, there is nothing suspicious

14 or sinister in the presence of this bird gun in the basement of the

15 Ametovski house.

16 Counsel for Tarculovski also referred to evidence apparently

17 indicating that all the men in the Ametovski house were combatants, who

18 had been firing towards the police with weapons that they later hid in a

19 fridge freezer in the basement. This is found in paragraph 265 of the

20 Tarculovski brief.

21 This evidence, however, is nothing more than an unsubstantiated,

22 third-hand, hearsay rumour. This information comes from an unnamed

23 source, and it was provided to the MOI some seven months after the events

24 in Ljuboten. This is contained in Exhibit 1D273.

25 There is nothing else in evidence to support this rumour. On the

1 contrary, Bolton gave evidence that during his on-site inspection on 14

2 August, as he moved along the road towards the Jashari house, and that is

3 the same road that the Ametovski house is located, although he found

4 evidence indicating that the police had been firing as they moved from

5 west to east, he found no evidence of any fire coming from the other

6 direction towards the police unit. I refer to Exhibit P236.1,

7 paragraph 13.

8 Furthermore, Your Honours, it defies belief that the police would

9 detain these unarmed men, supposedly with the genuine belief that they

10 were combatants who had been firing at them, and then not even search the

11 basement for the supposed collection of weapons. The police didn't find

12 any such weapons because there were none to be found, and the police

13 didn't search for any weapons because they did not believe that these men

14 were combatants. This was confirmed when Bolton went into the basement

15 himself on 14 August and found nothing apart from the previously

16 mentioned bird gun.

17 As the police marched the ten remaining detainees from the

18 Ametovski house toward Ljubanci, the beatings continued. These men

19 arrived at a police check-point at a residence known as Brace's house at

20 the Ljuboten-Ljubanci border. This can be seen on the panoramic

21 photograph. It is a blue circle with a yellow flag coming up on the

22 right-hand side of the picture. M-037 testified that Johan Tarculovski

23 was also present at Brace's house on the afternoon of 12 August, and I

24 refer to transcript pages 873 to 875.

25 And, Your Honours, could we briefly move into private session,

1 please.

2 JUDGE PARKER: Private.

3 [Private session]

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 [Open session]

14 THE REGISTRAR: Your Honours, we're in open session.

15 MR. DOBBYN: At Brace's house, the police continued to beat the

16 detainees until they were eventually loaded on a truck and taken to

17 Mirkovci police station. That's at page 897 to 899 of the transcript.

18 The police did not, as suggested by counsel for Tarculovski at

19 paragraph 309 of the brief, "transport the men outside of the danger."

20 They were simply transported from one location where they were being

21 beaten, that is Brace's house, to another location where they were being

22 beaten, that is Mirkovci police station, and they were beaten while they

23 were being transported there. I refer to paragraph 121 of the

24 Prosecution's final brief.

25 At Mirkovci police station, although he was unable to even speak

1 at this time, the police continued to beat Atulla Qaili. Eventually, he

2 was transported to Skopje City Hospital where he died from his injuries

3 on 13 August.

4 In their final briefs, the Defence have attempted to portray

5 Atulla Qaili, not as an unarmed civilian, but as a heavily armed

6 combatant. This assertion cannot be supported by any reasonable

7 interpretation of the evidence. The Trial Chamber has heard from

8 Drs. Stein, Eichner, and Jakovski, who all attested to the inherent

9 unreliability of the paraffin glove test as a means of determining

10 whether an individual has fired a weapon.

11 Yet still, counsel for Tarculovski contend that there is a high

12 probability that Atulla Qaili was an NLA member, and this assertion is

13 based solely on the paraffin glove test that was apparently performed on

14 him at his autopsy. This is at paragraph 272 of the Tarculovski final

15 brief. The evidentiary value of the paraffin glove test is clear; it is

16 minimal at best.

17 Counsel for Boskoski then assert there is evidence that, when

18 detained, Atulla Qaili was found in possession of hand-grenades. I refer

19 to paragraph 311 of the Boskoski final brief. However, despite what one

20 would expect to find if this were true, such as Official Notes or

21 criminal reports from the MOI, there are no such documents and evidence

22 containing any such allegations. In fact, this evidence about a

23 hand-grenade is nothing more than a rumour that was put to OTP

24 investigator Thomas Kuehnel during cross-examination. It is nothing more

25 than this, and this can be found at page 8046 of the transcript.

1 Finally, our learned colleagues have suggested that a bullet that

2 might have come from Atulla Qaili's clothing was recovered from close to

3 his body when exhumed. This is at paragraph 311 of the Boskoski final

4 brief. In fact, the bullet was found on top the ground in the general

5 area of Atulla Qaili's grave the day before the exhumation took place,

6 several months after his death. I refer to transcript pages 5442 to

7 5445.

8 This, Your Honours, was after he had been detained in the

9 village, held at Mirkovci police station, taken to Skopje City Hospital

10 for treatment, and had an autopsy performed on him. Yet, somehow it

11 suggested that this bullet remained on his person and escaped the

12 attention of all these people at these various location. There is

13 clearly no connection between Atulla Qaili and this bullet.

14 The claim that Atulla Qaili was in possession, and to quote my

15 learned colleagues, "an arsenal of weaponry at the time of his detention"

16 is completely unsupported by the facts. On the other hand, the facts do

17 show that he was beaten by police while he was detained in Ljuboten at

18 Brace's house and at Mirkovci police station, and that he died as a

19 result of these beatings.

20 Following the murders of Rami Jusufi, Sulejman Bajrami, and

21 Muharem Ramadani, and while the ten detainees from the Ametovski house

22 were taken to Brace's house, the police unit continued to move further

23 east through the village to the house of Kadri Jashari. This is marked

24 by the red number "3" on the panorama.

25 As set out in detail in the Prosecution's final brief, five

1 unarmed civilians taking cover at the Jashari house were driven out and

2 shot at by the police unit who killed three of the men, Xhelal Bajrami,

3 Bajram Jashari, and Kadri Jashari. This is in paragraphs 104 to 119 --

4 THE INTERPRETER: Interpreters kindly ask counsel to slow down.

5 MR. DOBBYN: -- of the Prosecution's final brief.

6 In the Defence final briefs, our learned colleagues submit that

7 these victims were, in fact, actively participating in the hostilities.

8 The Prosecution does not accept this position but will rest on the

9 submissions made in the Prosecution's final brief on this point.

10 Further ore, contrary to the forensic and ballistic evidence to

11 eye-witness testimony, and to the conclusions drawn during the on-site

12 investigation carried out by Henry Bolton, counsel for Tarculovski

13 contend that these three men were, in all likelihood, shot by army

14 snipers. The evidence does not support this assertion; and, again, the

15 Prosecution will rely on the points made in its final brief.

16 Now, the evidence that has been put before the Trial Chamber has

17 also shown that as the police units led by Johan Tarculovski moved

18 through the village on 12 August, they left a trail of destruction in

19 their wake. This unit damaged or completely destroyed at least 14 homes

20 through the use of hand-grenades, small arms, and accelerants. The

21 Defence also suggests that police directed their fire -- sorry, Your

22 Honours, if I can just go back a moment.

23 Counsel for Boskoski contend that the damage done to the

24 properties was limited in scope both in terms of the number of properties

25 concerned and the nature of the damage which they characterise as in most

1 cases minimum. This is in paragraph 316 of the Boskoski final brief.

2 With regard to the number of homes damaged, Your Honours, we have

3 established 14 homes in the small close-knit village. In this context,

4 the Prosecution has certainly met its burden of proving that a

5 considerable number of objects were destroyed or damaged. This is test

6 applied by the Strugar Trial Chamber at paragraph 294.

7 With regard to the Defence' position that the damage to the

8 houses was minimal, I would simply refer to the Trial Chamber to the

9 photographs taken by Peter Bouckaert and the International Management

10 Group; for example, I would refer to Exhibits P337, P412.07, P347, and

11 P350. These and other photographs make perfectly clear the damage and

12 destruction that the police units inflicted on these homes is anything

13 but minimal. These homes were left unhabitable.

14 The Defence also suggests that the police directed their fire

15 only at those houses from which they came under fire. Counsel for the

16 accused Tarculovski, in particular, relies upon the evidence of Nikolce

17 Grozdanovski to establish locations from where this hostility fire was

18 allegedly coming, and the Prosecution does not concede that there was

19 shooting from these locations.

20 However, for the sake of argument for this closing submission,

21 the Prosecution has taken a panoramic photograph that was annotated by

22 Grozdanovski, which is Exhibit 1D281, and transposed the alleged

23 locations of hostility fire onto the panoramic being used for this

24 presentation. You will see four locations, four positions on the map

25 labelled A to D. Your Honours, while Grozdanovski clearly located four,

1 and only four, specific buildings from which he claimed fire was coming,

2 Tarculovski's unit damaged or destroyed a minimum of 14 homes, as set out

3 in paragraph --

4 THE INTERPRETER: Interpreters kindly ask the counsel do slow

5 down.

6 MR. DOBBYN: I apologise to the translators.

7 As set out in paragraph 154 of the Prosecution's final brief,

8 Bouckaert's inspection of the village corroborates the allegations that

9 these homes were destroyed by the police and not by army shelling, with

10 clear signs that accelerants were used to set houses alight from the

11 inside. He also found no signs of outgoing fire from these houses. So

12 this destruction of 14 homes, when only four locations had been

13 identified, clearly had nothing to do with the legitimately responding to

14 hostility fire. It's clear from the evidence that the wanton destruction

15 was, indeed, wanton. It was indiscriminate, and it was unrelated to any

16 legitimate military targets.

17 The Trial Chamber has also heard evidence over the past year that

18 shows without any doubt that numerous male ethnic Albanian residents from

19 Ljuboten were detained and were subjected to cruel treatment at a number

20 of locations outside Ljuboten. Residents were detained and beaten

21 repeatedly by police and, with their encouragements, villagers at Buzalak

22 check-point.

23 Detainees from Buzalak check-point were then taken in separate

24 groups to Cair, Kisela Voda, Bit Pazar, and Karpos police stations where

25 the beatings continue. Many were even subjected to cruel treatment at

1 the court and at Skopje City Hospital. This was done by the police and,

2 with their encouragement or approval, civilians. These facts are set out

3 in detail of the Prosecution's final brief at paragraphs 173 to 149.

4 Before concluding this part of the Prosecution's closing

5 statement, I would like to briefly address the general point regarding

6 the reliability of the crime-base witnesses.

7 On all material facts, Your Honours, the evidence of the

8 crime-base witnesses has remained consistent and unchanged. The

9 crime-base witnesses have remained steadfast in their identification of

10 the perpetrators of these crimes. They were either uniformed police

11 officers or, in some of the cases of cruel treatment, civilians acting

12 with the permission and encouragement of the police.

13 The crime-base witnesses have also consistently and steadfastly

14 maintained that when beaten and physically abused by the police, they

15 were unarmed and they were in custody and they had not taken any part in

16 hostility. But in what counsel of Boskoski refers to as the village

17 story, the Defence alleged that the villagers had discussed their

18 evidence and have changed their evidence during the course of these

19 proceedings. In particular, it's alleged that they have changed their

20 evidence regarding the collateral issuing of whether or not any villagers

21 were members of the NLA.

22 With respect, Your Honours, the material issue here is not

23 whether anyone from Ljuboten may have joined the NLA in 2001, the issue

24 is whether there were any NLA fighters in the village on 12 August 2001.

25 The position of the crime-base witnesses has remained the same from the

1 start. There were none. This is confirmed by Nazim Bushi, commander of

2 the 114th Brigade of the NLA, at pages 5634 to 5639 of the transcript; it

3 is also corroborated by Peter Bouckaert, page 3162 of the transcript; and

4 Witness M-083, at pages 1481 to 1482 of the transcript; and Franz-Josef

5 Hutsch, at transcript pages 2710 to 2711.

6 It is to be expected that some details of some of the witnesses

7 recollection of events would change over time, but those changes that the

8 Defence highlights are not material to this case.

9 Your Honours, through the evidence presented to the Court, the

10 Prosecution submits that we have proven beyond a reasonable doubt the

11 crimes of murder, wanton destruction, and cruel treatment, as alleged in

12 the indictment.

13 At this point, I will happy to answer any questions or else I

14 will turn over to my colleague, Ms. Valabhji.

15 JUDGE PARKER: Thank you.

16 MS. VALABHJI: Good afternoon, Your Honours. I will now present

17 submissions on Mr. Tarculovski's responsibility under Article 7(1) of the

18 Statute.

19 There is an absolute prohibition on the targeting of civilians in

20 customary international law. Article 50 of Protocol I to the

21 Geneva Conventions, whose provisions may largely be viewed as reflecting

22 customary law, further provides that in case of doubt, whether a person

23 is a civilian, that person shall be considered to be a civilian.

24 The police forces who attacked Ljuboten on 12th August, under

25 Mr. Tarculovski' leadership, violated this principle. They committed

1 crimes against civilians.

2 One of the clearest examples of such conduct was demonstrated by

3 what happened at the Ametovski house that day in Ljuboten. At this

4 house, the police forced the ethnic Albanian men to come out of the

5 basement and one of them shouted to the detainees: Expletive, "you

6 thought Arkan is dead." The detainees were compelled to sing Macedonian

7 national songs and to glorify Arkan. The police carved a cross into the

8 back of one of the ethnic Albanian villagers. What could be a more

9 graphic manifestation of a criminal purpose, carving an Orthodox symbol

10 into the back of an ethnic Albanian?

11 As Mr. Dobbyn has just elaborated, as soon as the villagers came

12 out of the basement, the police beat them brutally and killed two men in

13 the group after they had been detained. The detained villagers were also

14 persons not taking an active part in the hostilities and, therefore,

15 protected under Article 3 of the Statute. Next door, women and children

16 were hiding in another basement with some other men from the village,

17 further evidence that those detained were civilians.

18 MS. VALABHJI: May we go into private session, Your Honour.

19 JUDGE PARKER: Private.

20 MS. VALABHJI: Thank you.

21 [Private session]

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 [Open session]

9 THE REGISTRAR: Your Honours, we're in open session.

10 MS. VALABHJI: But, as we have heard, the crimes at the Ametovski

11 house were not the only crimes committed in Ljuboten that day. There was

12 a pattern of crimes that occurred throughout the village, including

13 murders, wanton destruction, and further acts of cruelty perpetrated

14 against the ethnic Albanian villagers by the police forces who attacked

15 the village.

16 The question is: How could this happen? It happened because the

17 police perpetrators of these crimes wanted them to happen. They intended

18 to commit crimes.

19 The evidence shows that the summer of 2001 was a violent time in

20 Macedonia. Indeed, a Defence witness, Petre Stojanovski, assistant to

21 the head of SVR Skopje in 2001, described as "the practice "acts of

22 violence against civilian property and suspected ethnic Albanian

23 terrorists." In other words, such violence was normal. It was

24 particularly foreseeable after casualties suffered by the Macedonian

25 security forces. The same witness, Petre Stojanovski, agreed that the

1 police, by August 2001, would want to take great care after incidents

2 where members of the security forces were killed, in order to try to

3 avoid danger to civilians in such a volatile environment.

4 I refer to the transcript at 9273 to 9274.

5 Just days before the events in Ljuboten on the 8 August, the NLA

6 killed ten soldiers from Prilep at Karpalak, and violence against ethnic

7 Albanian properties followed. Exhibit P610, for example, which is video

8 footage broadcast on Macedonian television at the time, shows the burning

9 mosque in Prilep. Another Defence witness, Blagoja Markovski, described

10 the reactions after the Karpalak incident as a mass scale psychological

11 situation this. This at transcript page 10.882.

12 Another incident occurred only two days later on the 10th of

13 August, at Ljubotenski Bacila, about five kilometres away from Ljuboten.

14 Eight Macedonian soldiers were killed and two of them were from Ljubanci,

15 where the accused, Mr. Tarculovski, is from.

16 Mr. Tarculovski led his police forces into Ljuboten on the

17 12 August in this incendiary climate. Furthermore, the police forces he

18 led included criminals.

19 May we go into private session, please.

20 JUDGE PARKER: Private.

21 [Private session]

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 [Open session]

8 THE REGISTRAR: Your Honours, we're back in open session.

9 MS. VALABHJI: Thank you.

10 This evidence is further corroborated by Exhibit P592. The

11 criminal records included serious bodily injury or serious disturbance to

12 another's health, and I refer to Exhibit P590. Defence witness Popovski

13 confirmed that several persons listed in Exhibit P592 as having criminal

14 records were the same persons who received remuneration from the Ministry

15 of Interior in August and September 2001.

16 Mr. Tarculovski's knowledge that persons in his group included

17 criminals can be inferred from the evidence in P379, his own statement,

18 where he said that he had been in Ljuboten with a large group of men, and

19 that he had known all of them. I refer to the ERN N000-8918 to 8919.

20 Mr. Tarculovski's knowledge can also be inferred from the fact

21 that other persons knew that there were criminals in the group. This

22 evidence considered together gives rise to the only reasonable inference;

23 namely, that Mr. Tarculovski was aware of the criminal pasts of persons

24 who went into Ljuboten with him.

25 One of the modes of responsibility alleged in the case against

1 Mr. Tarculovski is a joint criminal enterprise. The Prosecution must

2 prove that plurality of persons acted together to implement a common

3 purpose. It should be noted that the common purpose need not have been

4 previously arranged or formulated. It may materialise extemporaneously

5 and be inferred from the facts.

6 I refer to the Stakic appeal judgement at paragraph 64. The

7 participation of the accused in the common purpose is required, although

8 he need not physically commit a specific crime. In addition, a

9 participant in a JCE is not required to be physically present when and

10 where a crime is being committed.

11 In the first form of JCE, all participants must intend to effect

12 the common purpose and to commit the crimes. At paragraph 328 of the

13 Tarculovski final brief, the Defence appears to suggest that an agreement

14 between the parties is required under this mode of responsibility.

15 However, this is not the case, as stated in the Krajisnik trial judgement

16 at paragraph 883.

17 The other modes of responsibility alleged against

18 Mr. Tarculovski, under Article 7(1), are ordering, planning, instigating,

19 and aiding and abetting. I will not dwell here on the legal definitions

20 of these modes of responsibility, which are also set out fully in the

21 Prosecution's final brief.

22 How do we know that there was a common criminal purpose with

23 regard to the crimes committed in Ljuboten? Well, we've already heard

24 the statements of the police forces at the Ametovski house that day,

25 which constitutes strong evidence of the criminal purpose. We also know

1 that these events took place at a time when violence against ethnic

2 Albanians constituted the practice, particularly after casualties

3 suffered by the Macedonian security forces.

4 May we go into private session, Your Honour.

5 JUDGE PARKER: Private.

6 [Private session]

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 [Open session]

15 THE REGISTRAR: Your Honours, we're back in open session.

16 MS. VALABHJI: Thank you.

17 There was also an attempt to show that the villagers from the

18 Ametovski house were terrorists; in other words, to frame them as

19 terrorists. The police allegedly found three weapons and ammunition near

20 the Jashari house, but the villagers detained at another location, the

21 Ametovski house, were forced to sign a seizure certificate pertaining to

22 these very weapons. This was a blatant attempt to mask what truly

23 happened that day.

24 There also a number of documents which reflect further attempts

25 to cover up what happened in Ljuboten that day, referred to from page 60

1 of the Prosecution's final brief. Exhibit P253, for example, a log which

2 recorded Official Notes about events with respect to operational sector

3 Cair doesn't have an entry pertaining to the 12th of August.

4 The report of the first commission, Exhibit P378, is remarkably

5 silent about the death of Atulla Qaili and the grave injuries sustained

6 by Ljuboten villagers in Ljuboten and at the other cruel treatment sites

7 mentioned in the indictment. Where are the reports of cruel treatment

8 regarding all the locations mentioned in the indictment?

9 The Defence makes the claim that a legitimate military purpose

10 existed for the attack in Ljuboten and that the Macedonian security

11 forces believed that the NLA was present in the village. First of all,

12 the NLA was not in Ljuboten, and I refer to the evidence of Bouckaert at

13 T3162; M-083, T1482 to 1482; Witness Grozdanovski at T10.513; Witness

14 Hutsch at T2710 to 11; Witness Bushi at T5634 to 5638.

15 Further, even if the Macedonian security forces had a belief that

16 there were NLA in the village, that does not exclude the concurrent

17 existence of the common criminal purpose. In other words, with regard to

18 criminal purpose, it does not matter.

19 But, of course, the Defence argument begs the question: If the

20 police were indeed going after the NLA and directed its attack against

21 selected targets, as the Defence claims, then why beat and kill the

22 villagers whom they had detained?

23 Another submission by the Defence is that the NLA mingled with

24 civilians in the village and that the NLA are the real culprits for what

25 happened to the village. This is at paragraph 235 of the Tarculovski

1 final brief.

2 First of all, whatever actions are alleged against the NLA, are

3 these relevant to Mr. Tarculovski's responsibility? The answer is no.

4 What is at issue in this case is the crimes in the indictment and the

5 accused's responsibility for these crimes.

6 Second, even if one were to consider that the NLA mingled with

7 civilians, a point which the Prosecution does not concede, then police

8 perpetrators, on the 12th of August, should certainly have been in doubt

9 as to whether the persons they attacked were civilians. As stated

10 earlier, customary law states that when in doubt as to a person's

11 civilian status, such a person must be presumed to be a civilian.

12 The Defence for Mr. Tarculovski has also submitted in its brief

13 on several occasions that the role of Mr. Tarculovski in these events was

14 that of a mere monitor. He was there to monitor these events. Well, the

15 evidence which we have set out in our brief, both testimony and

16 documentary evidence, overwhelmingly shows that his role went far beyond

17 that

18 May we now go into private session again, Your Honours.

19 JUDGE PARKER: Yes, private.

20 [Private session]

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

1

2

3

4

5

6

7

8

9

10

11 Page 11003 redacted. Private session.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 [Open session]

10 THE REGISTRAR: Your Honours, we're back in open session.

11 MS. VALABHJI: Thank you.

12 The next day Mr. Tarculovski met with Despodov again, and in the

13 face of Despodov's persistent refusal to proceed in the absence of an

14 order he swore at Despodov, saying, "With our without you, the action

15 will take place." And I refer to Despodov at T2567.

16 Exhibit P303 similarly records Mr. Tarculovski saying after 2200

17 hours on the 11th of August, that on the following day, at 4.30 a.m., he

18 would start the action. Again, these words and actions are not those of

19 someone who was merely monitoring the situation.

20 Mr. Tarculovski's participation is reflected in his own

21 statements to the second commission, and I refer to Exhibit P379. In the

22 3rd March 2003 Official Note, Mr. Tarculovski wrote: "Since I was a

23 local, I knew the terrain, and I headed towards Ljuboten with the other

24 men."

25 In the 25th November 2003 information it is stated:

1 "Mr. Tarculovski replied that he was in Ljuboten with many people, more

2 than 100 persons, and he knew all of them." Again, in the 12th November

3 2003 minutes, the same information is repeated.

4 I'll say a few words about the reliability of these documents

5 that I've just referred to; that is to say, the documents that are part

6 of Exhibit P379. The Defence submits that no weight should be placed on

7 the evidence contained in this document and that all the statements given

8 by Mr. Tarculovski are unreliable. And that is at paragraph 18 of the

9 Tarculovski brief.

10 The Prosecution disagrees, and I must again go into private

11 session.

12 JUDGE PARKER: Private.

13 [Private session]

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

1

2

3

4

5

6

7

8

9

10

11 Page 11006 redacted. Private session.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 [Open session]

10 THE REGISTRAR: Your Honours, we're back in open session.

11 MS. VALABHJI: After the operation had concluded, Witness Hutsch

12 saw Mr. Tarculovski, and he seemed to be in charge. Witness Kuehnel was

13 familiar with the response to a RFA from the Ministry of Defence,

14 according to which the land operation over the village of Ljuboten was

15 under the leadership of Johan Tarculovski on the 12th of August, 2001.

16 Transcript page 7889 to 7892.

17 The evidence of Mr. Tarculovski's participation proves that he is

18 responsible for all modes of responsibility set out in Article 7(1) of

19 the Statute; namely, as a participant in a joint criminal enterprise, and

20 for planning, ordering, instigating, and aiding and abetting the crimes.

21 The evidence pertinent to each mode of responsible under

22 Article 7(1) has been set out in detail in Section 3 of the Prosecution's

23 final brief, so I will only briefly highlight a few points with regard to

24 each mode of responsible at this stage.

25 Regarding the joint criminal enterprise, evidence of the criminal

1 purpose and Mr. Tarculovski's participation therein has already been

2 discussed. His intent to further the common purpose is demonstrated by

3 his own statements, his leadership of the operation, the persons he used

4 to carry out the operation, his continuous participation in the attack,

5 and his presence at key locations during the operation, including

6 locations where the crimes occurred.

7 As to ordering, the evidence proves that Mr. Tarculovski was in a

8 position of authority over the physical perpetrators of crimes committed

9 in Ljuboten and that he led the police unit. To cite some examples, on

10 the evening of 11th August he led his unit on a reconnaissance of

11 Ljuboten.

12 A very brief private session, please.

13 JUDGE PARKER: Private.

14 [Private session]

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 [Open session]

23 THE REGISTRAR: Your Honours, we're in open session.

24 MS. VALABHJI: As to planning, the evidence demonstrates that

25 Mr. Tarculovski organised and led the Ljuboten operation; and to cite a

1 few examples, he met with key personnel prior to the operation and

2 requested support for his operation. He procured equipment for his men

3 such as bullet proof vests and radios.

4 As to instigating, the evidence proves that Mr. Tarculovski

5 through his actions and words promoted and substantially contributed to

6 the commission of crimes in Ljuboten.

7 With regard to aiding and abetting, Mr. Tarculovski organised

8 and led the operation and was present at key locations including where

9 crimes occurred. His presence, words, and actions at these locations

10 constituted encouragement of the police forces to commit crimes. He must

11 have been aware of the legitimi sing effect of his words and presence on

12 the actions of the physical perpetrators.

13 Mr. Tarculovski acted with direct intent or was aware of the

14 substantial likelihood that crimes would be committed during the Ljuboten

15 operation. He must have been aware of the volatile climate in Macedonia

16 at the time, the danger to ethnic Albanians, especially after the deaths

17 of Macedonian security force-personnel, and the use of criminals for the

18 operation.

19 The Prosecution requests the Trial Chamber to find

20 Mr. Tarculovski guilty under Article 7(1) of the Statute, pursuant to the

21 charges against him, set out in Counts 1 to 3 of the indictment.

22 That brings me to the end of my submissions, Your Honour, and Mr.

23 Saxon will be making the next set of submissions. I don't know if this

24 is a time for a break or I just hand it over to Mr. Saxon.

25 JUDGE PARKER: Thank you very much.

1 Mr. Saxon, we could have the first break now or in about a

2 quarter of an hour. Which is more convenient to you?

3 MR. SAXON: It would probably make more sense simply to take the

4 break, Your Honour, and then I will continue and hopefully complete my

5 submissions in the next full session.

6 JUDGE PARKER: Very well. We will resume, then, at 4.00.

7 --- Recess taken at 3.28 p.m.

8 --- On resuming at 4.05 p.m.

9 JUDGE PARKER: Mr. Saxon, before you continue, the Chamber has

10 been uncertain as to the basis upon which the references to certain

11 evidence was made only in a private session. In most if not all cases,

12 the reference was to the evidence of witnesses identified only by a

13 designation, and it would seem for most purposes it would, therefore, be

14 adequate to be able to refer to that evidence in open chamber. There may

15 be circumstances of which you are aware, where there is some peculiarity

16 about the evidence which itself would help identify a particular witness,

17 but that would seem to be unusual if it occurs at all. We would think

18 that the precaution presently being taken is probably unnecessary.

19 I mention that so that it may assist you and others that follow

20 you.

21 MR. SAXON: Thank you very much, Your Honours. Would Your

22 Honours' suggestion also apply to evidence that was given in closed

23 session?

24 JUDGE PARKER: Yes, Mr. Saxon.

25 MR. SAXON: Very well. Thank you.

1 Your Honours, I'm going to be speaking about the responsibility

2 of Mr. Boskoski pursuant to Article 7(3) of the Tribunal's Statute;

3 Mr. Boskoski's responsibility as a superior. Certainly, I would be happy

4 to respond to any questions that you might have, either during my

5 submissions or after I finish.

6 The evidence proves that Mr. Boskoski's de jure and de facto

7 control over Johan Tarculovski and the police officers who perpetrated

8 crimes in Ljuboten and that cruel treatment in locations outside of

9 Ljuboten and in Skopje, and Boskoski's effective control over police

10 officers whose acts and omissions aided and abetted prison guards,

11 hospital personnel, and civilians to commit the crimes charged in the

12 indictment. The evidence also proves that Mr. Boskoski knew and had

13 reason to know that his subordinates perpetrated and aided and abetted

14 the crimes alleged in the indictment.

15 And, Your Honours for purposes of my submissions when I use the

16 term "indictment," I'm referring to the Second Amended Indictment.

17 Finally, the evidence proves that Mr. Boskoski failed to take all

18 necessary and reasonable measures to punish his subordinates who were

19 responsible for these crimes.

20 I'd like to spend a few minutes discussing Mr. Boskoski's

21 effective control over the perpetrators of the crimes. Paragraphs 274 to

22 276 of the Prosecution's final brief describe Mr. Boskoski's de facto

23 control over Macedonian police forces, including reserve police officers

24 in 2001. I won't repeat that discussion today, but I would like to refer

25 you to some additional evidence that illustrates the extent of

1 Mr. Boskoski's control over Ministry of Internal Affairs personnel,

2 including police officers, when he was the minister.

3 Your Honours, at pages 5133 to 5134 of the transcript, police

4 General Zoran Jovanovski described how Mr. Boskoski could order one of

5 his directors to obtain more information about an issue, and how those

6 orders would be passed down the ministry's chain of command. And after

7 meetings of Mr. Boskoski's collegium, his subordinate, such as General

8 Jovanovski, would carry out the instructions of the minister. That's at

9 page 5099 of the transcript.

10 Your Honours, on the 28th of July, 2001, Minister Boskoski

11 instructed his subordinates in the ministry to cut short all annual leave

12 being taken at that time, and to direct all employees on annual leave at

13 that time to return to their work. We see this in Exhibit P00489.

14 The Chamber heard from Miodrag Stojanovski that these

15 instructions reached the PSOLO police station. That is it at page 6812

16 of the transcript.

17 After the Ohrid Framework Agreement was signed on the 13th of

18 August, the Ministry of Internal Affairs chain of command continued to

19 function. Orders were sent down the chain of command and reports went

20 up. General Jovanovski continued to carry out the orders of his

21 superiors. That's at page 5101 of the transcript.

22 Defence witness Keskovski, a member of the ministry's security

23 sector, described how members of the Macedonian army were placed under

24 his command during a period of 2001. That's at page 10.083 of the

25 transcript.

1 Witness M-084, at page 1450, described how at OVR Cair, in 2001,

2 there was a station commander, a department station commander, and an

3 assistant commander. All of these personnel were subordinate to the

4 Ministry of Interior which was in command.

5 And at page 1452 of the transcript, M-084 gave a vivid

6 description of the place of the minister in that chain of command, and

7 the amount of power that he exercised. He said: "The minister of the

8 interior has the right to issue an order anywhere and any time, and no

9 one could tell him whether that would be at 4.00 a.m. or 4.00 p.m."

10 As M-052 described the power of the minister, at page 8438: "The

11 minister is my superior. I do not, I cannot doubt his word."

12 Your Honours, along with this evidence, authority cited by

13 counsel for Mr. Boskoski in his final brief, at footnote 966, helps us

14 understand the military dynamics that were alive in the Ministry of

15 Internal Affairs during 2001. In the article called, "Command

16 responsibility for war crimes," the author explains on the first page:

17 "That subordinates typical obey is a basic tenet of military life."

18 The evidence in this trial proves beyond a reasonable doubt that

19 this military principle was alive and well in the Ministry of Internal

20 Affairs in 2001. For example, Witness M-056 described how: "There are

21 strict sanctions for not obeying orders." This is at page 2168 of the

22 transcript.

23 Indeed, during 2001, not only was there a chain of command

24 operating within the Ministry of Internal Affairs, there were also

25 diverse chains of command operating at that time within that one

1 ministry. For example, the commander of the Tigers special police units

2 reported to two chains of command, to the minister and to the directors

3 of the bureau for public safety and the counter-intelligence directorate.

4 You'll find that testimony at page 2133.

5 Your Honours, above Minister Boskoski in the chain of command was

6 the prime minister, Ljubco Georgievski. In his expert report,

7 Dr. Blagoja Markovski confirmed that the prime minister commanded the

8 police through the minister of interior. That's at Exhibit 2D101,

9 paragraph 216. For example, at the beginning of the armed conflict,

10 Prime Minister Georgievski instructed the commander of the Tigers special

11 police unit to expand that unit. This is it at pages 2253 to 2256.

12 All of this evidence, Your Honour, is further proof of the

13 effective control that Mr. Boskoski exercised over members of the

14 Ministry of Internal Affairs and the police.

15 As you know, the element of effective control is important as a

16 manifestation of the superior/subordinate relationship required to prove

17 criminal responsibility under Article 7(3) of our Statute.

18 Your Honour, the evidence proves beyond a reasonable doubt that

19 the members of the unit led by Johan Tarculovski in Ljuboten village were

20 reserve police officers. We know that the men who followed

21 Mr. Tarculovski into Ljuboten were police reservists for several reasons.

22 The members of Mr. Tarculovski's unit were "given weapons and

23 uniforms and put on the list at PSOLO police station and at OVR Cair."

24 That met the standards for becoming a police reservist that you will find

25 described at page 8430 to 8432 of the transcript.

1 As witness M-084 explained, pages 1460 to 1462, with respect to

2 the men who received weapons on the 10th of August: "Data was taken and

3 their criminal record checked. Those who did not have a criminal record

4 were given weapons."

5 In the words of M-084: "The competence after the reserve police

6 officer wears the clothes and takes the weapons, then the competence and

7 responsibility is assumed by the superior officers in the station."

8 As M-052 put it succinctly at page 8433 of the transcript: "If a

9 person wears a uniform, he is employed in the ministry."

10 Second of all, Your Honours, the men were deployed and

11 subordinated to a regular police officer, Mr. Tarculovski, who in turn,

12 was a subordinate of Mr. Boskoski. This requirement is described by

13 Witnesses M-053 and M-084, pages 1990 and 1460 respectively. It is also

14 corroborated by Miodrag Stojanovski who testified that: "One such

15 volunteers were redeployed they were subordinated to the commanders of

16 the units where they were assigned," at pages 6838 to 6839.

17 Third, Your Honours, Mr. Tarculovski, the leader of the group of

18 men who entered Ljuboten on the 12th of August, said that they were

19 reservists. You can find that at his Official Note from May 2003. It is

20 part of Exhibit P00379, bearing ERN N000-8922.

21 M-052 described how the people who went into Ljuboten on the

22 12th of August were "police," so did Defence witness Army Captain

23 Grozdanovski at page 10.511 of the transcript. Other Prosecution and

24 Defence witnesses who served in the Macedonian army at that time

25 confirmed that the army of the Republic of Macedonia did not enter

1 Ljuboten on the 12th of August. We heard that from Witness 2D008, at

2 page 10576; from Mr. Despodov, at page 2597; from witness M-051, at pages

3 4136 to 4137; and from Mr. Jurisic, at page 3319.

4 And, finally, Your Honour, even the Tarculovski Defence

5 acknowledges that the unit that entered Ljuboten on the 12th of

6 August were police officers. If you look at the final brief of the

7 Tarculovski Defence, ten times from paragraphs 205 to 210, five times in

8 paragraph 265 alone, and, additionally, in paragraphs 276, 277, 278, and

9 308 in the brief, we are told that there were police in the village.

10 Your Honours, as explained at paragraphs 303 to 307 of the

11 Prosecution's brief, by the summer of 2001, the Ministry of Internal

12 Affairs did not depend on the fulfilment of formal administrative

13 so-called requirements for the mobilisation of police reservists.

14 Instead, ministry officials focussed on de facto indicator, such as the

15 issuance of weapons and uniforms and the deployment with a regular police

16 officer; nor should any de jure requirements, if they existed, be

17 determinative of Mr. Boskoski's effective control over these police

18 officers.

19 In the Blaskic trial judgement at paragraph 302, the Trial

20 Chamber held that superiors need not have any legal authority to prevent

21 or punish acts of subordinates. The determining factor is a superior's

22 material ability to do so. In this case, the evidence demonstrates

23 Mr. Boskoski's de facto and de jure powers over all police reservists,

24 whether or not they had fulfilled all potential conditions described in

25 laws and by-laws.

1 The fact that police reservists stood at attention when

2 Mr. Boskoski entered the courtyard of Brace's house on the 12th of

3 August, 2001 is a much more germane indication of a superior/subordinate

4 relationship than compliance with administrative criteria. I'm

5 referring, Your Honours, to the testimony of Mr. Jakovoski at page 3938

6 and also to testimony at page 8281.

7 Your Honours, there is another reason why it would be incorrect

8 to give too much importance to the supposed de jure requirements for

9 police reservists. The evidence demonstrates that during the summer of

10 2001, police command positions, even entire police units, existed

11 de facto before they existed de jure.

12 For example, at pages 8610 to 8611, the Chamber heard how the

13 Kuceviste reserve police station and the work of Marjan Taskovski, as the

14 commander of that police station, began before the Ministry of Internal

15 Affairs issued a decision establishing that reserve police station on

16 15 August 2001.

17 Mr. Taskovski complained several times about the fact that he was

18 working as the commander of this reserve police station, but he was not

19 yet receiving the appropriate salary because no decision had been issued

20 formally appointing him to that position. And in that same testimony,

21 M-052 explained that these kinds of situations arose frequently during

22 that crisis period. Indeed, Your Honours, the testimony of Witness

23 M-056, at pages 2235 to 2237, illustrates a similar situation involving

24 positions in the posebna unit, which existed long before rules were

25 issued establishing those positions.

1 Furthermore, Your Honour, the genesis of the Ministry of Internal

2 Affairs Lions unit provides another example where de facto situations

3 existed on the ground long before they were formalised. I would refer

4 you to Exhibit P00074, a decision issued by Mr. Boskoski on the 6th of

5 August to establish a rapid intervention battalion, composed of regular

6 members of the special units of the police, the posebna unit, regular

7 police, and members of the police reserve. This units, Your Honours,

8 became known as the Lions.

9 Jovanovski testified that a majority of the members of this unit

10 came from the posebna unit. That's at page 4909 of the transcript.

11 During his cross-examination, Jovanovski agreed that the establishment of

12 the Lions unit was not complete until mid-November 2001, when the members

13 received employment contracts with the Ministry of Internal Affairs.

14 This is at pages 4907 to 4911.

15 However, in his memoire of those years, Mr. Boskoski acknowledged

16 that the Lions unit operated as a "special reserve unit of the Ministry

17 of Internal Affairs" well before November. By late August 2001,

18 Mr. Boskoski acknowledged to the media that: "The newly formed forces

19 called the Lions are not a paramilitary group of armed civilians, as

20 Western diplomates claim," but, rather, a special Ministry of Internal

21 Affairs reserve unit. This special reserve unit, Mr. Boskoski explained

22 to the Reuters news service, would conduct "search and destroy operations

23 up and down the entire length of western Macedonia." Persons found in

24 possession of weapons would "be punished more harshly than usual."

25 You can find this information, Your Honour, in Exhibit P00402, in

1 the English translation bearing N000-9661 to N000-9685, pages 6 to 8.

2 Mr. Boskoski's statements in this regard in his book are

3 supported by the transcript to Exhibit P00439, a video-clip of

4 Mr. Boskoski and the Lions unit in November 2001.

5 Your Honours, also relevant to the genesis of the Lions is

6 Exhibit P00518, an Official Note from the Ministry of Internal Affairs,

7 dated the 22nd of September, 2001, describing the presence of a

8 "battalion for rapid intervention" at the police academy in Idrizovo at

9 that time. That is six weeks before this unit was formally established

10 in November, and discussing concerns that police forces would prevent

11 ethnic Albanian police recruits from entering the police academy.

12 Your Honours, if entire special units could operate in 2001 in a

13 de facto sense before their formal creation in a de jure sense, then

14 surely individuals could be deployed as police reservists and

15 subordinated to the ministry's chain of command before they fulfilled all

16 formal or administrative criteria.

17 In addition, Your Honours, the arguments presented by

18 Mr. Boskoski in his final brief about the existence of prerequisites to

19 becoming a police reservist are also inconsistent with Mr. Boskoski's

20 expert evidence. If you look at paragraph 46 of Exhibit 1D00310,

21 Professor Taseva describes five conditions that must be fulfilled before

22 a person could become a police reservist. One of these requirements was

23 the provision of regular identification documentation. But when we read

24 paragraph 4 of the Boskoski final brief, this requirement of an

25 identification document has disappeared. If the Boskoski Defence is

1 disagreeing with its own expert on this issue, or, if the expert witness

2 was wrong on this matter, then, in the Prosecution's respectful

3 submission, the Chamber should be cautious before it places a great deal

4 of weight or reliance on this argument concerning alleged prerequisites

5 for police reservists in 2001.

6 But for the sake of argument, I would like to consider with you

7 the alleged de jure requirements for mobilisation into the police

8 reserves mentioned by Mr. Boskoski at paragraph 4 of his brief. The

9 first requirement is listing as reservists at the department for defence

10 preparations at the SVR level.

11 Your Honours, the Prosecution concedes that a great deal of

12 evidence was led during this trial, describing the lists of reservists

13 maintained by the Ministry of Defence and by the department of defence

14 preparations within the Ministry of Internal Affairs; for example, at

15 pages 1453 to 1455 of the transcript.

16 However, we know from Mr. Tarculovski's Official Note from

17 May 2003, part of Exhibit 379 as I have said, that the reserve police

18 officers who accompanied him into Ljuboten registered with the reserve as

19 volunteers. The evidence demonstrates that these volunteer police

20 reservists were subjected to a vetting process, including the review of

21 information about them on lists kept by the Ministry of Internal Affairs'

22 department for defence preparations.

23 Your Honour, in 2001 --

24 I'm sorry, Your Honours. Can we move into private session for

25 one brief moment.

1 JUDGE PARKER: Private.

2 [Private session]

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 [Open session]

10 THE REGISTRAR: Your Honours, we're in open session.

11 MR. SAXON: The MOI's -- the Ministry of Internal Affairs's

12 department for defence preparations had data provided from the Ministry

13 of Defence on each volunteer which they reviewed at OVR Cair, and then

14 checked to see whether the volunteers had criminal records. You'll find

15 this at page 1455 of the transcript and also from the testimony of M-083

16 at page 1419.

17 The evidence proves that persons with criminal records were only

18 mobilised into the police reserve upon the orders of ministry superiors.

19 You can find that at pages 8272 to 8274, page 1895, and page 1475.

20 (redacted)

21 (redacted) in this process, this vetting process, with the group of

22 volunteer reservists who came to OVR Cair on 10 and 11 August, some of

23 whom participated in the Ljuboten operation. This is at 1461 to 1462.

24 Prior to that, on the 25th to 26th of July, Miodrag Stojanovski carried

25 out a somewhat different procession with the group of volunteers from

1 Kometa security company, who came to PSOLO police station along with

2 Mr. Tarculovski. This is at pages 6804 to 6806 and page 6830.

3 Upon the orders of Mr. Stojanovski's superiors, volunteers were

4 issued weapons and sent to another ministry facility in order to fill in

5 reserve police officer questionnaires. Thus, procedures were followed to

6 mobilise these volunteers into the Ministry of Internal Affairs. This

7 was not anarchy, Your Honours. On the contrary, this was a controlled

8 procedure subject to the chain of command of the Ministry of Internal

9 Affairs.

10 Secondly, the Defence for Mr. Boskoski argue that before a person

11 became a reservist, in 2001, he had to perform some training.

12 Your Honour, the relevant articles in the Law on Internal

13 Affairs, that's Article 46 from Exhibit P00086, pertaining to

14 mobilisation of police reservists do not set out training as a

15 precondition to an individual becoming a reserve police officer.

16 Article 46 of this Law, says that the ministry can up reservists for

17 training, for exercises, or with respect to the circumstances described

18 in Article 45 of the law.

19 Article 45 describes how police reservists can be mobilised

20 during war, emergencies, or when the public peace and order is disrupted

21 on a large-scale. The law does not say that a prospective reserve police

22 officer must undergo training before that person becomes a reservist.

23 Similarly, Your Honours, the Book of Rules for summoning and

24 engaging members of the reserve ranks of the Ministry of Internal

25 Affairs, Exhibits 1D0054 and 1D00356, contains no prerequisite of

1 training before a person can join the police reserves. Indeed, Article 2

2 of that exhibit reads: "The members of the reserve ranks of the ministry

3 take part in practices and other forms of professional training organised

4 by the ministry."

5 In other words, first, the individual becomes a member of the

6 reservists ranks; and, then, he may take part in practices and training.

7 Article 3 of the same by-laws makes the same point, and the first

8 paragraph of that article: "The summoning of members of the ministry for

9 practice or other type of professional training, or, for the performing

10 work and tasks as in Article 2, item 2 of this book of rules, is done by

11 the ministry with an individual or group summons."

12 And in the third paragraph of Article 3: "The individual summons

13 for practice or other type of professional training is delivered by the

14 ministry to the members of the reserve ranks of the ministry."

15 Therefore, Your Honours, the laws and by-laws of the Ministry of

16 Internal Affairs prove that a person became a member of the reserve

17 police forces before he or she would be sent for training.

18 The third criteria mentioned in the Boskoski final brief is

19 payment of compensation; but, Your Honours, nothing in the Law on

20 Internal Affairs or the by-laws of the Ministry of Internal Affairs

21 require that a police reservist receive compensation prior to his or her

22 deployment as a police reservist. Article 4 of the Law on Internal

23 Affairs, P86, provides only that members of the reserve forces of the

24 Ministry of Internal Affairs "have the right" to compensation for their

25 service in the reserves. In other words, first comes service; then comes

1 compensation.

2 A discussion during the testimony of police General Zoran

3 Jovanovski shines a particular light on this issue. Starting at the

4 bottom of page 4917 of the transcript, my learned colleague asked General

5 Jovanovski: "In order to become a member of the reserve forces of the

6 Republic of Macedonia, is it true that it is necessary, first, for a

7 person to respond to a summons or to volunteer, in case the summons were

8 public.

9 Answer: "Yes."

10 Question: "Then, to -- for weapons and uniform to be issued?"

11 Answer: "Yes."

12 Question: "Then, to go through a brief training which, in 2001,

13 took place in Idrizovo, to receive the identification from the reserve

14 forces, and to be put on the payroll in order to receive the remuneration

15 for the reserve forces?"

16 Answer: "Yes. When the members of the reserve forces are

17 involved for more than one month, and that person -- that person's

18 regular job is put on hold and he receives his salary from the Ministry

19 of Interior."

20 General Jovanovski's evidence indicates that a police reservist

21 could be engaged for less than one month and not have his name placed on

22 the Ministry of Internal Affairs's payroll list.

23 Lastly, paragraph 4 of the Boskoski's brief mentioned age

24 requirements; but there has been no evidence in this trial to suggest

25 that any of the men who followed Mr. Tarculovski into Ljuboten on the

1 12th of August, 2001 were minors or were elderly. So if this requirement

2 exists, it is not applicable to this case.

3 Turning to a different topic, Your Honours, at pages 341 to 353

4 of its final brief, the Prosecution described the abundant evidence which

5 proves that Mr. Boskoski knew or had reason to know that his subordinates

6 perpetrated the crimes alleged in the indictment. I do not intend to

7 review this material today; however, I'm certainly prepared to respond to

8 any questions that you might have about this topic.

9 Moving to the third prong of superior responsibility, I would

10 like to discuss Mr. Boskoski's failure to discharge his duty to punish

11 the perpetrators of the crimes charged in the indictment.

12 At paragraphs 353 to 390 of its final brief, the Prosecution

13 discussed evidence that demonstrates that Mr. Boskoski failed to

14 discharge his duty to take all necessary and reasonable measures to

15 punish his subordinates who perpetrated the crimes charged in the

16 indictment, and I would like to make some additional submissions on this

17 topic today.

18 Once the Prosecution has demonstrated that the accused knew or

19 had reason to know that a subordinate was about to commit a crime, or had

20 done so, the law of superior responsibility does not require the

21 Prosecution to prove further elements of the accused's intent. However,

22 in this case, the evidence proves that Mr. Boskoski's intention was to

23 ensure that none of his subordinates were held accountable for the crimes

24 charged in the indictment. A review of this evidence is pertinent to the

25 third prong of superior responsibility.

1 Your Honours, you can often tell if someone understands how wrong

2 their actions are, and in this case, the actions of a person's

3 subordinates, by the lengths that they go -- the lengths to which they go

4 to rationalise them.

5 For example, in Mr. Boskoski's memoire, Exhibit P00402, at page 6

6 of the ERN translation N000-9794 to N000-9711, Mr. Boskoski writes: "You

7 know very well that Macedonia and the Macedonian people are dissatisfied

8 with the way the international community acts within our country, and

9 also with its positions regarding Macedonia. In particular, it disagrees

10 with the continuing attempts to equate the victim with the aggressor.

11 The political court in The Hague is a brilliant invention which has

12 nothing to do with human rights at all. It is a pure farce. Why?

13 Because it is being used to incriminate the Macedonian security forces

14 for alleged crimes in Ljuboten where the Macedonian security forces

15 actually saved Ljuboten."

16 I would refer you, again, Your Honours, to the language of

17 Exhibit P378, the report of the 2001 commission created by Mr. Boskoski

18 to review the circumstances and analyse the activities of the Ministry of

19 Interior forces in Ljuboten at page 3: "In such situations, the reality

20 cannot be ignored that in these circumstances, there is both the human

21 factor and a natural reaction to survive in conditions where, in fact,

22 his live has been placed there real danger, and it is precisely this

23 factor, which, in the actions and the activities carried out in the

24 village of Ljuboten caused, in a negligible number of individual events

25 within tolerable limits the established equilibrium of attack defence to

1 be destroyed."

2 Similarly, Your Honour, in Exhibit P00531, an opinion that he

3 sent to the Macedonian government in November 2001, Mr. Boskoski proposed

4 that the government of the Macedonia decline to support a resolution from

5 an ethnic Albanian political party, criticising the use of force by

6 members of the Ministry of Internal Affairs. Mr. Boskoski argued that

7 the numbers of cases of excessive force was insignificant, "especially

8 having in mind the current security situation in the country."

9 But the laws of wars, Your Honours, presume that a nation can

10 adequately perform its military campaigns without committing crimes.

11 This principle is described in the article, "Command responsible for war

12 crimes," published in the 82nd Yale Law Journal at page 1274, and it's

13 referred to in the final brief of Mr. Boskoski at footnote 966.

14 Mr. Boskoski's attempts to rationalise the misconduct of his

15 subordinates, contrary to international humanitarian, illustrate not only

16 his knowledge of their criminal behaviour but Mr. Boskoski's own desire

17 to minimise these events as unimportant.

18 Indeed, the mention of crimes committed against ethnic Albanians

19 was cause for Mr. Boskoski not to redress these problems but to attack

20 the messenger. On two occasions on television in January 2002,

21 Mr. Boskoski called the leader of the Macedonian Helsinki Committee,

22 state enemy number 1 for her reporting of abuses committed against ethnic

23 Albanians. We learn this from Peter Bouckaert at transcript pages 3262

24 and 3195. Concurrently, Mr. Boskoski made no genuine efforts to

25 investigate and punish the detailed allegations of egregious abuses

1 committed by his subordinates between 12 and 14 August, 2001. Perversely

2 and effectively, Mr. Boskoski attacked the innocent and protected the

3 guilty.

4 Minister Boskoski's message and intentions remained the same

5 during the spring of 2002. In Exhibit P00277, a video of a speech that

6 Mr. Boskoski gave to the Lions on the 7th of May, 2002, Mr. Boskoski

7 said: "I know that the accusations will continue but the Macedonian

8 public is asking itself why. It is it to defend the fatherland, to

9 defend the constitutional order. What is it that we want to condemn?

10 No, the only thing that can be condemned is treason. That which will not

11 be preserved for the future."

12 The evidence admitted during this trial proves that

13 Mr. Boskoski's intent vis-a-vis the Ljuboten matters was not to perform

14 his legal duties. It was to avoid them, and avoid them he did. The

15 gross failures of the so-called investigation carried out by

16 Mr. Boskoski's closest subordinates in the ministry proves the wish of

17 Mr. Boskoski and his closest colleagues not to identify which members of

18 the Ministry of Interior perpetrated the crimes in and around Ljuboten

19 and Skopje. How else can you explain their failure to probe this matter

20 more deeply?

21 If Mr. Boskoski had insisted that this question be investigated

22 with any skill and sincerity, he would have had to confront his own

23 responsibility as a superior for the actions of his subordinates.

24 This evidence illustrating Mr. Boskoski's intentions during 2001

25 and 2002 underlines and explains Mr. Boskoski's failure to discharge his

1 obligations as a superior concerning the crimes charged in the

2 indictment.

3 Turning more specifically to this failure, Your Honours,

4 Mr. Boskoski failed to even denounce these crimes. By this failure,

5 Mr. Boskoski failed to take even the simplest most basic step within his

6 ability to identify and punish the perpetrators.

7 Your Honours, the Prosecution does not concede that the Ministry

8 of Internal Affairs was constrained in its investigation by the fact that

9 the public prosecutor and investigating judges were alerted to the death

10 of five persons in Ljuboten on the 12th of August. As discussed in the

11 Prosecution's brief at paragraph 381, the Ministry of Internal Affairs

12 only provided information to the judiciary about alleged acts of

13 terrorism committed by ethnic Albanian residents in Ljuboten. The

14 Ministry of Internal Affairs provided no information to the judiciary

15 about crimes committed against ethnic Albanians on the 12th of August and

16 subsequent days. To paraphrase M-052: "Everybody was there, everybody

17 saw."

18 But no member of the Ministry of Internal Affairs alerted the

19 public prosecutor and the investigative judge to these facts, and the

20 ultimate responsibility for this failure lay with Mr. Boskoski.

21 Even assuming, for the sake of argument, that the judiciary took

22 jurisdiction over all the events alleged in the indictment, additional

23 measures for redressing these crimes were within Mr. Boskoski's

24 abilities. For example, if you look at Article 173 of Exhibit P00096,

25 the Book Of Rules for conducting matters of the Ministry of Internal

1 Affairs, that Article provides: "A special report to the competent

2 public prosecutor shall also be submitted as a supplement to the criminal

3 charges in the case when, after criminal charges are brought, new facts,

4 evidence, or traces of a crime are determined."

5 In this matter, had the Ministry of Internal Affairs conducted a

6 serious investigation, it could have provided the facts of the crimes,

7 the identities of the perpetrators, or even the facts that serious

8 allegation existed about the crimes, to the public prosecutor. As

9 minister, Mr. Boskoski had the power to instruct his subordinates to

10 produce such a "special report" and provide it to the public prosecutor.

11 Instead, Mr. Boskoski chose to categorically deny that any serious

12 misconduct occurred or to minimise the significant of that misconduct.

13 The Ministry of Internal Affairs could have submitted a copy of

14 the Human Rights Watch report now in evidence in this case to the

15 investigative judge and the public prosecutor. But a review of the court

16 files from Basic Court I in Skopje, that is Exhibits P46 through P55,

17 reveals that this simple measure did not occur.

18 Given his legal duty to investigate and punish, Mr. Boskoski

19 could not have relied on the results of his own sham investigative

20 commission.

21 Your Honour, the president of Macedonia in 2001,

22 Boris Trajkovski, told representatives of the international community in

23 November of that year that he had no faith in Macedonian government

24 commissions because they produced no results. That's in Exhibit 1D00211.

25 And that statement is significant for two reasons. First, it illustrates

1 that commissions established to redress serious issues, such as the

2 conduct of the Ministry of Internal Affairs forces in Ljuboten, were mere

3 facades; and, secondly, it illustrates implicitly that not even the

4 president, a member of Mr. Boskoski's own political party, had faith in

5 the work of Mr. Boskoski's commission set up to review the conduct of his

6 subordinates in the village of Ljuboten.

7 Your Honours, the cooperation, or lack thereof, of ethnic

8 Albanian victims of the crimes committed between 12 and 14 August with

9 Macedonian authorities does not excuse the failure of Mr. Boskoski to

10 take all necessary and reasonable measures to punish the perpetrators.

11 For example, in the judgement rendered in the case of Maritza Urrutia

12 versus Gautemala on the 27th November 2003, the Inter-American Court of

13 Human Rights noted at paragraph 104(d) that: "The obligation to

14 investigate cannot depend on the decision of the victim."

15 Your Honours, the complex security situation existing in

16 Macedonia during 2001 and 2002 did not prevent the Ministry of Interior

17 from performing more thorough investigation into the allegations of the

18 crimes described in the indictment. You heard the testimony of Deputy

19 Public Prosecutor Vilma Ruskovska at pages 1523 to 1524 of the

20 transcript. Ms. Ruskovska described how, in the summer of 2001, she

21 received telephone threats from the NLA and how these threats frightened

22 her. But Ms. Ruskovska continued to carry out her professional

23 responsibilities because, as she explained, "as a prosecutor, you know

24 that our profession is such. We do receive threats, but we need to --

25 but we need to continue working having this in mind. We either accept

1 our job as it is, or we discontinue working at it."

2 That same simple principle applied to Mr. Boskoski and the

3 members of the Ministry of Internal Affairs. Mr. Boskoski remained in

4 his position, with all of its duties, powers, and responsibilities,

5 throughout the time-period described in the indictment.

6 Furthermore, Your Honours, the fact that the Macedonian

7 government had not yet created a formal witness protection programme

8 provides no excuse for Mr. Boskoski's failure to discharge his

9 obligations in this case. In reality, Minister Boskoski had his own

10 witness protection capability.

11 I'd like to show you a bit of video material, please. This will

12 be Exhibit P00277. It was shot in November 2001. It shows the Lions --

13 members of the Lions, the Tigers, and the posebna units in an exercise

14 attended by Mr. Boskoski and the prime minister.

15 If we could play that tape, please.

16 [Videotape played]

17 MR. SAXON: We see a large crowd, we see vehicles.

18 [Videotape played]

19 MR. SAXON: We see a large group of police officers in combat

20 gear - can we stop there, please - and we saw just a second ago how well

21 armed they are.

22 Can we continue.

23 [Videotape played]

24 MR. SAXON: Stop there, please. We see the number of vehicles.

25 Can we continue, please.

1 [Videotape played]

2 MR. SAXON: If we can stop there. We see the police vehicles

3 lined up on the left and the police officers in the centre.

4 Thank you very much.

5 Your Honours, that was Mr. Boskoski's witness protection

6 programme had he chosen to use it, and it existed long before the events

7 in Ljuboten. Given the man power, the weaponry, the armoured personnel

8 carriers, and the facilities available to the Ministry of Internal

9 Affairs, protecting witnesses who were members of that ministry would

10 have been a very feasible task.

11 Indeed, on the 12th of August, with the assistance of a telephone

12 call, reportedly to the Minister Boskoski, a Hermeline armoured personnel

13 carrier was obtained for the protection of the police officers who

14 attacked Ljuboten. The Hermeline accomplished its task with one

15 exception. There was one clumsy police reservist, Aleksander Janevski,

16 also known as Kunta the younger or Kunta junior, who shot himself in the

17 foot; the only police casualty that day. You find that evidence at pages

18 8288 to 8289, and pages 8293 and 8295. Fortunately, the Hermeline was

19 available to quickly transport Kunta the younger to Brace's house.

20 That's at pages 864 to 865.

21 Finally, on this point, Your Honours, I would direct your

22 attention to Exhibit P00148, a Ministry of Internal Affairs Official

23 Note, dated 14 August 2001, which indicates that ministry personnel were

24 able to obtain important information from a person born in Ljuboten about

25 the events in Ljuboten on the 12th of August, such as information

1 pertaining to the identities of the persons killed there. Thus,

2 information was accessible to the Ministry of Internal Affairs even in

3 the tense environment following the events of 12 August. You might also

4 want to review, in this regard, Exhibit 1D189, a similar document dated

5 15 November 2001.

6 Your Honours, Mr. Boskoski had ample ability to ensure that the

7 police officers who perpetrated the crimes on the 12th -- from the

8 12th to 14th of August were disciplined. Exhibits P00523 to P00530

9 provide the proof of Mr. Boskoski's ability to discipline his

10 subordinates when he wished to. Two exhibits, in particular, are worth

11 noting today.

12 If we could move -- or I will try to do this in public session,

13 Your Honour. You may want to refer to Exhibit P00526, which contains the

14 records of the disciplinary proceedings against the former head of the

15 Tigers special police unit. If you scan just the first page of

16 ERN N006-6076 to 6077, you will see how effective the Ministry of

17 Interior's disciplinary system could be, even during the armed conflict.

18 The incident involving that commander at Vaksince occurred on

19 25 May 2001. The director of the public security sector of the Ministry

20 of Internal Affairs, that was Mr. Mitevski, submitted a proposal to start

21 disciplinary proceedings with the Ministry of Interior's permanent

22 disciplinary committee on the 30th of May, 2001. And on the 9th of

23 July 2001, just 45 days after the incident at Vaksince, and after several

24 procedures, the minister signed a decision confirming the punishment for

25 the individual involved. Clearly, this system could work well, even

1 during the armed conflict, when the leaders of the Ministry of Internal

2 Affairs wanted it to work.

3 In addition, Your Honours, I would respectfully direct the

4 Chamber's attention to Exhibit P00528, disciplinary proceedings brought

5 in early 2002 against a reserve member of the -- excuse me, against a

6 regular member of the police and a police reservist. The head of OVR

7 Cair at that time submitted criminal reports concerning both individuals

8 to the public prosecutor.

9 Your Honours, my colleagues who spoke previously mentioned the

10 pattern of crimes that occurred between the 12th and 14th of August, and

11 I would respectfully ask you during your deliberations to look not just

12 at the pattern of crimes but also at the entire patterns of events

13 subsequent to that -- to those crimes. The evidence demonstrates that

14 the Ministry of Internal Affairs forces were involved in Ljuboten and

15 that they perpetrated the crimes in and around Ljuboten and in and around

16 Skopje. The evidence demonstrates the ministry's failure, Mr. Boskoski's

17 failure, to ensure that easy and obvious investigative tasks were

18 performed.

19 The evidence demonstrates that no reporting was done about these

20 crimes, alleged crimes, to the judiciary. The evidence also demonstrates

21 that this occurred in an environment both before and after the 12th of

22 August, when offer acts of police brutality had been committed against

23 ethnic Albanian civilians.

24 So, Your Honours, in the Prosecution's submission, this evidence

25 demonstrates the failure of Mr. Boskoski to discharge his duty to take

1 all necessary and reasonable measures to investigate these allegations

2 and punish the perpetrators.

3 Unless you have any questions for me, I will turn the microphone

4 over to my colleague, Ms. Regue.

5 JUDGE PARKER: Thank you.

6 [Trial Chamber confers]

7 JUDGE PARKER: The question arises, again, whether the break now

8 would be more practical.

9 MR. SAXON: I believe it would be, Your Honour.

10 JUDGE PARKER: We will adjourn now and resume at a quarter to

11 6.00.

12 --- Recess taken at 5.16 p.m.

13 --- On resuming at 5.47 p.m.

14 MS. REGUE: Good afternoon, Your Honours.

15 JUDGE PARKER: Ms. Regue.

16 MS. REGUE: Good afternoon. I'm going to address the topic of

17 armed conflict, the chapeau of requirement of Article 3. I am going to

18 structure my presentation in three groups. I will start with the legal

19 standard; then I will move to the most relevant evidence concerning the

20 organisation of the NLA, and I will address my learned colleagues's

21 submissions at this stage; and I will end up my submissions with the key

22 facts concerning the intensity of the armed conflict.

23 Your Honours, I do not intend to repeat the whole Prosecution

24 closing brief; therefore, in case of any omission, I refer Your Honours

25 to paragraphs 391 to 503 where the armed conflict is presented.

1 Now, Your Honours, the legal standard.

2 The test which was originally laid out in the Tadic jurisdiction

3 appeal decision states that an armed conflict exists whenever there is an

4 resort to armed force between states, or protracted violence between

5 governmental authorities and armed groups, or between these groups within

6 a state. Basically, Your Honours, the test focuses on two conditions and

7 two requirements: The intensity of the conflict and the organisation of

8 the parties to the conflict.

9 The criteria of protracted armed conflict has been interpreted in

10 practice as referring more to the intensity of the armed violence than to

11 its duration. I would refer to Your Honours, to Haradinaj trial

12 judgement, paragraph 49. Further, some degree of organisation by the

13 parties will suffice to establish the existence of the armed conflict.

14 Basically, the main purpose of the Tadic test is to distinguish an armed

15 conflict from banditry and organised and short-lived insurrections, as

16 well as terrorist activities which are not subject to international

17 humanitarian law.

18 Your Honours, the Prosecution has proved beyond a reasonable

19 doubt that the armed violence through wide scale use of conventional arms

20 between the Macedonian security force, meaning police of the MOI and

21 army, and the NLA between September -- excuse me, from January to

22 September 2001 constituted an armed conflict of a scale that met the

23 intensity prong of the Tadic test. Secondly, Your Honours, the

24 Prosecution has proved beyond a reasonable doubt that the NLA had an

25 organised hierarchical structure, as well as a functioning chain of

1 command and logistics, distinctive of an organised armoured group able to

2 engage in an internal armed conflict.

3 The Prosecution, Your Honours, has also proved the existence of a

4 nexus between the crimes and the armed conflict. Both accused where

5 aware of the factual circumstances of the Macedonian conflict, and the

6 existence of this armed conflict play a substantial role in the accused's

7 ability and decision to commit the crimes.

8 Finally, Your Honours, the four Tadic requirements described in

9 the appeal jurisdiction decision, paragraph 94, have also been met. I

10 will refer Your Honours to paragraphs 501 to 503 of the Prosecution

11 closing brief on this regard.

12 Now, Your Honours, I will move to the second part of my

13 submissions, the organisation of the NLA.

14 The NLA had a functioning chain of command and a hierarchical

15 structure with a General Staff in the top, with Ali Ahmeti, the NLA

16 commander; Gzim Ostreni, the Chief of Staff; as well as other members,

17 such Shefit, aka Krabata [phoen], in charge of logistics; or Nazmi Bikari

18 [phoen], dealing -- the spokesperson.

19 And the law of that hierarchical structure, we could find active

20 brigades, and one brigade which was in a state of readiness. Each

21 brigade had its own commanders, zone of operations, headquarters. The

22 Prosecution, Your Honours, has proved these facts through viva voce

23 witness and through documentary evidence coming from different and

24 credible source.

25 We have seen, Your Honours, Exhibit P487, the directive produced

1 by Gzim Ostreni at the beginning of June. We have also presented Exhibit

2 P515, also three maps produced by Gzim Ostreni to be delivered to NATO

3 indicating the areas under the control of the NLA by July -- by the

4 beginning of July 2001. But, Your Honours, we have also presented

5 documents coming from the Macedonian government, such as Exhibit P485, or

6 from NATO such as P493 and P321.

7 Your Honours, it is the Prosecution submission that all these

8 documents are reliable, relevant, and have a probative value to establish

9 the existence of the organisation of the NLA. The Prosecution has

10 presented through Gzim Ostreni, Nazim Bushi, and the expert witness of

11 the Prosecution, Viktor Bezruchenko, the NLA regulations that were

12 intended to organise the diverse needs of the NLA in order to function as

13 an organised army. I will refer Your Honours to the Prosecution's brief,

14 paragraphs 475 to 482.

15 Your Honours, the NLA was able to speak through a unified voice,

16 and they did so through the communiques. The communiques which were

17 issued generally by the General Staff aimed at informing the public about

18 the goals of the NLA, about the actions of the NLA. Even the MOI

19 document, the White Book, P45, acknowledged the existence of the

20 communiques and reproduced the text of these communiques.

21 Your Honours, I won't repeat all the documents which are in

22 evidence, but I would like to highlight three. Communique number 6,

23 Exhibit P520, reproduces the main goals of the NLA which do not include

24 the disintegration of Macedonia. The NLA claims since the very beginning

25 of the armed conflict that they were fighting for equal rights of the

1 Albanian population through political changes such as the amendment of

2 the constitution. But the communique number 6 was not the only document

3 where the cause of the NLA were reproduced.

4 Also there is the Prizren Agreement, reached the 22nd of May

5 between Ali Ahmeti and the two male leaders of the Albanian political

6 parties with representation in the Macedonian parliament, that is Exhibit

7 P560. Also there is the memorandum issued by Ali Ahmeti on the 24th of

8 April, to Kofi Annan, to the leaders of NATO, OSCE, and the European

9 Commission, which was explained by Ostreni in pages 7445, and it's

10 actually acknowledged by the US spokespersons and journalists in the

11 Defence exhibits 1D338, page 4.

12 Your Honours, if we compare the Ohrid Agreement, the text of the

13 Ohrid Agreement, Exhibit P84, with the text of these three documents, we

14 will see an overlap. The demands of the NLA were, indeed, reflected in

15 the Ohrid Agreement despite the fact that NLA was not a signatory party.

16 But, indeed, Ali Ahmeti kept in contact with the parties who were

17 negotiating the Ohrid Agreement.

18 Your Honours, the NLA was also regarded as a valid negotiating

19 party by the international community. Exhibit P514, another communique

20 issued by the Ali Ahmeti, explains how the withdrawal of Aracinovo was

21 agreed upon by Ali Ahmeti and representatives from NATO and European

22 Union. Exhibit P458, another communique issued by Ali Ahmeti on the

23 14th of August, where he explains how he reach agreement with

24 Peter Feith, the NATO representative, concerning the demobilisation that

25 is found disbandment of the NLA, that what later became Operation

1 Essential Harvest.

2 Therefore, Your Honours, Tarculovski's argument in paragraph 58

3 of its brief, that the Defence has been unable to test the organisation

4 of the NLA due to the non-existence of any credible documentary evidence,

5 is without merit.

6 Your Honours, the NLA regulations that I just mentioned are

7 reliable, are relevant, and have probative value. We have here the

8 author Gzim Ostreni. We also had a brigade commander, Bushi, who

9 implemented them. Also, Bezruchenko testified about the reliability of

10 the regulations. The regulations of the NLA were produced from

11 March until April and, exceptionally, early May 2001. Ostreni

12 acknowledged the fact that he used as sources KLA documents, regulations,

13 KPC, as well as regulations from the Republic of Albania and the former

14 Yugoslavia.

15 But, Your Honours, the Spanish civil code also used as a source

16 the French civil code.

17 Ostreni also acknowledged that not all the institutions, not all

18 the structures which were foreseen in the regulations were implemented.

19 He testified that the NLA was an army, an organised group in process of

20 development, and they didn't expect that the war will end so soon.

21 And, Your Honours, I will also call your attention to the fact

22 that UCK translate from Albanian into English indistinctively NLA and

23 KLA. Therefore, Your Honours, Tarculovski's argument in paragraphs 69 --

24 excuse me, 68 to 69 of his brief, that where he states that the NLA

25 regulations are mere copies of the KLA and the KPC documents, is flawed.

1 Your Honours, numerous internal international armed conflicts

2 between states [indiscernible] armed groups have occurred. And,

3 regretfully, IHL have not been respected; for example, the Americans and

4 the Japanese in the Second World War, the Americans in Vietnam, the

5 Apartheid regime, the Cuban internal conflict. These are some examples.

6 Therefore, Boskoski's argument that the implementation of

7 humanitarian standards is a key criteria to establish the existence of an

8 organised armed group is without merit. This is in paragraph 263 of

9 Boskoski's final brief.

10 Nevertheless, Your Honour, I would like to draw your attention to

11 the fact that the NLA took measures to enforce the implementation of IHL.

12 NLA documents and regulations foresaw -- will establish the respect of

13 the international convention such as the Geneva Convention, as well as

14 acknowledge the jurisdiction of the ICTY. I will refer Your Honours to

15 Exhibit P487, page 4; Exhibit P507; as well as the rules of service of

16 the NLA, which is Exhibit P498. The ERN range is R062-6775, page 6; as

17 well as page 12 of the same documents.

18 The NLA regulations also foresaw disciplinary measures which were

19 to be implemented by the brigade and battalion commanders. I will refer

20 Your Honours to the same rules of service of the NLA, Exhibit P498,

21 ERN R062-6923, pages 4 to 6. Even for a certain period of time, Your

22 Honour, the NLA had military police; but as Ostreni testified, they were

23 integrated into the brigades.

24 It was a reminiscence of the KLA, but this does not mean that the

25 NLA didn't have personnel dealing with disciplinary measures. As Bushi

1 testified, Xhavit Hasani, officer for morale and information, was the one

2 dealing or talking to the detainees, to the NLA people arrested. Also,

3 Your Honours, during the initial training of the new recruits, they were

4 actually taught about the ordinary laws of war and international

5 conventions, as well as their duty to respect civilians and civilian

6 property.

7 Your Honours, the NLA had the manpower, the resources, and the

8 level of development to carry out concerted operations involving

9 different brigades by June 2001. We saw that in the directive,

10 Exhibit P487, exhibited by Gzim Ostreni. Nevertheless, the political

11 context, meaning the cease-fire agreement, as well as the

12 Ohrid Agreement, made the full implementation of the directive

13 impossible.

14 Nevertheless, Your Honour, the evidence presented in trial has

15 proved that the NLA General Staff had the ability to determine a unified

16 military strategy, as well as to plan and coordinate different brigades

17 on the field who were operating in different fronts.

18 Your Honours, I will refer to paragraph 29 of Exhibit P497, as

19 well as Exhibit P499, page 7.

20 Your Honours, the brigade commanders reported to the General

21 Staff. The General Staff issue orders and instructions down to the chain

22 of command, which the NLA members had the obligation to implement. I

23 would refer Your Honours to the rules of service of the NLA,

24 Exhibit P498, ERN R062-6774, page 13.

25 Also, Your Honour, brigade commanders from different brigades who

1 were sharing the same front, they indeed met and kept in contact in order

2 to coordinate their operations. Your Honours, the progressive

3 territorial advance, as well as the successful tactical operations of the

4 NLA, could have only occur with a General Staff which was able to

5 establish a unified military strategy, as well as to coordinate and plan

6 the different brigades on the field.

7 I will refer Your Honours to an assessment document, a research

8 document drawn by NATO in 2003. It's Exhibit P493, pages 3 and 12. NATO

9 defined the NLA as a well armed, well disciplined, and highly motivated

10 organisation that enjoy majority support from within the area; and when

11 referring to one brigade, appears to be a highly developed level of

12 organisation and discipline which allows the brigade to function

13 effectively.

14 Therefore, Your Honours, Boskoski's argument in paragraph 263,

15 stating that concerted operations involving different brigades is a key

16 requirement to establish the existence of an organised armed group, is

17 without merit. It may be relevant, Your Honours, but it is not a key or

18 a determinative requirement.

19 Your Honours, the NLA did carry out operations in different

20 fronts simultaneously. For example, in June, the NLA was operating in

21 Aracinovo and Tetovo. In August, Your Honours, the NLA were operating.

22 In July and August they were basically operating in all the fronts at the

23 same time. Early August, they were in Tetovo, Exhibit 1D229.1. They

24 were in Aracinovo, Exhibit 2D39, page 3. They were in Radusa, Exhibits

25 P605 and P609. And they also operated in Kumanovo, Exhibits 2D39, page

1 2, and 2D44, page 3.

2 Even the UBK reports were reporting or informing about the

3 operations that the NLA was carrying out in the different fronts. I will

4 refer Your Honours to Exhibits 2D40, 2D44, 2D39. Therefore, Your

5 Honours, Tarculovski argument that the NLA brigades were unable to

6 operate in different fronts in different locations simultaneously is

7 flawed. I will refer to paragraphs 59 to 60 to -- of Tarculovski's

8 brief.

9 Your Honours, the evidence at trial has shown that the NLA

10 members had the obligation to carry out -- to wear uniforms when carrying

11 out military operations. Nevertheless, as any other member of any other

12 army when they were on leave, they would be wearing civilian clothing.

13 Bolton, on page 1698, and Bouckaert, in page 3218, testified that every

14 single time that they met with the NLA, they were wearing uniforms.

15 According to Bolton in page 1699, if a NLA member was with a civilian, he

16 will always had on his uniform, a distinctive sign that will identify him

17 as a member of the NLA. On this matter, Your Honour, I will refer to the

18 Prosecution's brief, paragraphs 471 to 472.

19 Therefore, Your Honour, Tarculovski's submission on this point is

20 unsound. Your Honours, Tarculovski has referred to this matter in

21 paragraphs 82 to 92; and, indeed, his argument is not supported by the

22 evidence cited in footnote 130.

23 Your Honour, Ostreni was appointed by Ali Ahmeti as chief of the

24 General Staff. He acted and he was regarded by NLA members such as

25 Bushi, also by the international community and by the Macedonian

1 authorities, as the Chief of Staff of the NLA. I will refer Your Honours

2 to P93, page 34, that document produced by NATO, who refers to him as the

3 Chief of Staff of the NLA. I will also refer to P485, page 3, a document

4 produced by the minister of defence which also refers to him as the Chief

5 of Staff of the NLA.

6 Indeed, Bushi [sic] acted at the Chief of Staff. He issued

7 instructions, he reported the orders issued from Ali Ahmeti, he received

8 the reporting from the brigade commanders, he drafted the regulations, he

9 even issued communiques, and he was the person dealing with the

10 disbandment of the NLA. Thus, Your Honour, Tarculovski's submission in

11 paragraph 111 is without merit.

12 Ostreni, Your Honours, knew perfectly well and explained --

13 Your Honours, I have just been reminded that in page 69, line 5,

14 it appears as "Bushi acted as the Chief of Staff." It should read,

15 obviously, "Ostreni acted as the Chief of Staff."

16 Ostreni knew and explained perfectly well where the headquarters

17 of the General Staff were located. Initially, they were in Vejce, then

18 they moved to Prizren Kosovo, and some elements of the General Staff were

19 moving to Sipkovica. He testified about that in pages 7712 to 7714, and

20 paragraph 32 of Exhibit P497. He knew and testified about the

21 communications that he was using with the brigade commanders, phone and

22 Internet. This is on pages 7749 to 7751.

23 Your Honours, he also testified actually about the approximate

24 number of casualties, 68. There is in 7749 to 7751.

25 I would like to correct, actually, the reference with regards to

1 the communication which was in page 7424.

2 And, Your Honours, Gzim Ostreni may have not known exactly the

3 structure of the NLA before March 2001, because he was abroad and he was

4 the Chief of Staff of KPC in Kosovo. Therefore, Your Honour,

5 Mr. Tarculovski's submissions in this regard in paragraph 64 are without

6 merit.

7 Your Honour, before moving to the third area, I would like to

8 deal with three submissions raised by my learned colleagues. First, the

9 required mens rea of the accused with regard to armed conflict, the

10 mens rea of the perpetrators, and, finally, the relevance of state

11 practice.

12 With regards to mens rea of the accused, Your Honours, the

13 Prosecution has to prove that the accused knew or had reason to know the

14 factual circumstances of the conflict, and it is up to the Trial Chamber

15 to determine whether these facts presented at trial are constitutive of

16 an armed conflict. I will refer Your Honours to Naletilic appeals

17 judgement, paragraphs 114 and 119.

18 Your Honours, the Prosecution has proved that Johan Tarculovski,

19 a police officer working as an escort of the president, knew or, in the

20 alternative, had reason to know the factual circumstances in Macedonian

21 of the conflict. He saw how his friends, his colleagues were killed in

22 Ljubotenski Bacila. He even led an operation in Ljuboten where he said,

23 "This is a state of war."

24 Ljube Boskoski, Your Honour, the minister of the interior, he

25 also knew or, in the alternative, had to know the factual circumstances

1 underlying the armed conflict. Boskoski was issuing orders, he was

2 issuing press releases concerning military activities, he was on the

3 ground on a regular basis.

4 Consequently, Your Honours, Boskoski's submission that the

5 Prosecution has failed to establish that "Boskoski knew of the existence

6 of an armed conflict and knew of the nature of that conflict as neither

7 he nor the government officials never took the view that an armed

8 conflict existed" is again without merit.

9 I will refer Your Honours to paragraphs 458 to 470 of

10 Mr. Boskoski's brief. Tarculovski raises a similar argument in

11 paragraph 117 of his brief.

12 Your Honour, I would like to draw your attention to footnote 959

13 in paragraph 467 of Boskoski's brief. In order to support this

14 contention, Boskoski quotes his own memoire, Exhibit P402. The ERN range

15 will be N000-9607, page 31. But if we read that page, Your Honours, we

16 will see the prime minister, Ljubco Georgievski, wanted to declare the

17 state of war. We will see how Boskoski himself acknowledge that he was

18 working 24 hours, seven days per week because the military conflict was

19 on top of his worries.

20 Your Honours, the Prosecution does not have the obligation to

21 exclude the possibility that Boskoski could have committed in good faith

22 a mistake of fact or law with regard to the issue of armed conflict. The

23 Prosecution merely has to prove that Ljube Boskoski either knew or had

24 reason to know of the factual circumstances in Macedonia in 2001.

25 It is up to the Trial Chamber to legally qualify this factual

1 circumstances. By proving that the accused knew these factual

2 circumstances, we are excluding this error of fact. And, Your Honours,

3 with regards to the error of law, I will refer to Kordic appeal

4 judgement, paragraphs 303 and 311, when the Appeals Chamber -- when the

5 Appeals Chamber reiterated that the accused has to be aware of the

6 factual circumstances basically.

7 Therefore, Your Honours, Boskoski's argument in paragraph 471 of

8 his brief is without merit.

9 Your Honour, in those circumstances, when a subordinate of the

10 accused commits a crime, the Prosecution has to prove that the accused

11 either knew or had reason to know the victim's status; and I will refer

12 Your Honours to Naletilic appeal judgement paragraph 114 footnote 257.

13 Therefore, Tarculovski's argument that the accused needs to have

14 only knowledge of the victims' status in paragraph 125 of his brief is

15 without merit.

16 Now, Your Honours, I will move to the mens rea of the perpetrator

17 which has also been raised by my learned colleague Tarculovski in

18 paragraph 129.

19 In a similar circumstances, when a subordinate of the accused

20 commits the crime, perpetrates a crime, the perpetrator must know or have

21 reason to know also the victims' status; and the Prosecution refers to

22 Halilovic trial judgement, paragraph 36, and Krajisnik trial judgement,

23 paragraph 847, on this matter.

24 Therefore, Your Honours, Tarculovski's submission in

25 paragraph 124 that the mens rea standard of the perpetrator is merely

1 being aware of the victims' status is flawed. Furthermore, no source has

2 been cited to support this argument.

3 And, finally, Your Honour, I just briefly mention an issue which

4 had already been dealt by this Trial Chamber in your decision of the

5 27th of February, but has been raised again by both parties. Your

6 Honours stated in such decision, in paragraph 6, that the existence of an

7 armed conflict in Macedonia in 2001 is a question of fact and that public

8 statement by states or organisations have no relevance for establishing

9 the factual issue of armed conflict.

10 Therefore, Your Honours, the arguments raised by the accused

11 Tarculovski in paragraphs 112 to 116, and the accused Boskoski in

12 paragraph 264 to 269, stating that the names that the countries and

13 organisations gave to the NLA are a state practice that reflects the

14 state of customary law are without merit.

15 Your Honours, I would like to conclude the second part of my

16 submissions stating that the Prosecution has proved beyond a reasonable

17 doubt that the NLA was an organised armed group able to engage in an

18 armed conflict. The NLA had a hierarchical structure with an effective

19 and functioning chain of command, with the General Staff on top as the

20 leadership, and the brigades and others subunits below. The brigade

21 commanders were reporting to the General Staff, the General Staff were

22 issuing orders and instructions, and the General Staff was able to

23 actually define a unified military strategy and to coordinate and plan

24 the brigade's military activities, and the NLA brigades were indeed able

25 to carry out these operations in different fronts simultaneously.

1 Your Honours, the General Staff was able to obtain weaponry,

2 uniforms, equipment, mainly thanks to the funds coming from the diaspora.

3 The NLA was issuing its own communiques, had to its own regulations. And

4 the NLA was regarded by the international community as a valid

5 negotiating partner, among other factors. And, Your Honours, the

6 Macedonian conflict indeed caught the attention of the international

7 community. I will simply refer to the UN Security Council Resolution,

8 Exhibit 1D346, and on this particular point Your Honours, I will refer to

9 paragraphs 491 to 498 of the Prosecution's final brief.

10 And, finally, Your Honours, I will move to the third and last

11 part of my submission, the intensity of the armed conflict.

12 The armed conflict between the Macedonian security forces and the

13 NLA started at least January 2001 and lasted -- that is, until September

14 2001. Therefore, there were clashes before and afterwards. Your

15 Honours, you can find a detailed chronological description of the

16 geographical development of the armed conflict in paragraphs 396 to 427

17 of the Prosecution brief. I won't deal with that matter now. I just

18 want to highlight the fact that the NLA at some point had authority over

19 the 20 per cent of the territory of Macedonia.

20 Your Honours, an evidence of the intensity of the armed

21 conflict was the weaponry that the Macedonian security forces had to use

22 in order to face the NLA. They were using large-calibre artillery,

23 multi-barrel rocket launchers, combat aircrafts, fixed-wing ground attack

24 planes, and helicopter gunships, anti-aircraft guns, tanks, APCs, and at

25 the beginning of the conflict, Your Honours, the army established

1 tactical operational groups with the purpose to destroy the NLA in combat

2 operations.

3 With regards to the manpower of both parties, Your Honours, I

4 will simply refer to paragraphs 465, 468 to 469 of the Prosecution's

5 final brief. But, in a nutshell, the NLA had approximately 6.000

6 members, although some sources mention 8.000. The army employ per month

7 15.000 soldiers, and the police mobilised at the peak of the conflict

8 around 10.200 reserve police officers, on top of the regular police

9 officers. This high number of mobilised police officers indeed is an

10 evidence of the seriousness of the conflict. The president, Your Honour,

11 issue orders with the purpose of destroying the NLA and to regain the

12 territorial control and the NLA authority. And also Boskoski, as the

13 minister of the interior, established special police units; for example,

14 the Lions, reactivated the posebna unit, special police unit that

15 operated in complex situations when law and order were disrupted.

16 Boskoski also restructure operation headquarters Ramno. He

17 ordered the redeployment of the police to conflict areas. He mobilised

18 and demobilised reservists, he set up check-points, and he even limited

19 that citizens' movement in the main cities of the country, such as

20 Kumanovo, Aracinovo, Tetovo, and Bitola. As a result, Your Honours, a

21 large number of the Macedonian population had to flee the country. I

22 will refer Your Honours to paragraph 428 of the Prosecution's brief, as

23 there are many sources. The Macedonian sources, for example, mention

24 that over 80.000 fled the country, and over 86.000 were internally

25 displaced.

1 In conclusion, Your Honours, the evidence presented at trial

2 proved beyond a reasonable doubt that the NLA sufficiently had the

3 characteristics of an organised armed group, which was engaged in an

4 internal armed conflict with the Macedonian security forces during the

5 relevant time-period of the indictment. Further, the intensity of the

6 armed violence was of a scale that met the intensity prong of the Tadic

7 case.

8 Your Honours, I will end my submissions from a quote from

9 Exhibit P464, which is a book written by three former members of the

10 Macedonian army. In the ERN range N006-3325, page 2, the authors stated:

11 "Macedonia waged a real seven-month war which followed the theory and

12 practice of wars waged to date. The state authorities did not want to

13 recognise or accept this situation - a state of war."

14 At this point, Your Honours, I will be happy to answer your

15 answers, or I will turn over to my colleague, Mr. Dobbyn.

16 JUDGE PARKER: Thank you very much, Ms. Regue.

17 MR. DOBBYN: Your Honours, the Prosecution's final comments today

18 concern sentencing. In our final brief, we have addressed briefly the

19 primary factors that we suggest should be taken into consideration, and

20 those are the gravity of the offence and relevant aggravating factors.

21 With respect to the gravity of the offence, this has been cited

22 as the primary consideration in determining a sentence. I refer to the

23 Celebici Appeal Judgement, paragraph 731. The Appeals Chamber in the

24 same case also held that this consideration also applies in cases where

25 responsibility is based solely on Article 7(3), and that can be found at

1 paragraph 732 of the same judgement.

2 The Prosecution has alleged, and we submit that we have proven

3 beyond a reasonable doubt the charges set forth in the indictment.

4 With regard to the accused Ljube Boskoski, it has been

5 proven that he bears criminal responsibility for the failure to

6 investigate or to punish the crimes set out in Counts 1, 2, and 3 of the

7 indictment.

8 By failing to investigate or to punish these crimes, the accused

9 Boskoski has allowed seven murders, the wanton destruction of 14 homes,

10 and the cruel treatment of at least 36 ethnic Albanian individuals to go

11 unsolved. He has allowed the perpetrators of these crimes to escape

12 accountability. He has allowed members of the Macedonian police - his

13 subordinates - to rampage through a previously peaceful village, killing,

14 beating and burning homes, with impunity.

15 These crimes are grave in and of themselves, but we submit each

16 more so when taking into account the impact they have had on such a

17 small, close-knit community. The damage done, and the bewilderment as to

18 how they came to be targeted, was clear in the testimony of the

19 crime-base witnesses.

20 In terms of aggravating factors, first and foremost must be Ljube

21 Boskoski's abuse of his position of authority as the Macedonian minister

22 of the interior at the time of these crimes. Both the Hadzihasanovic

23 appeals judgement at paragraph 320, and the Seromba appeals judgement at

24 paragraph 230 cite this as an aggravating factor.

25 Your Honours, the evidence has shown that this is a case of real

1 abuse of power. As set out by my colleague Mr. Saxon, from the outset

2 Mr. Boskoski set out to "prove the opposite," to use the words of his

3 advisor, Sofija Galeva-Petrovska. And that is at transcript page 8806.

4 As early as the 14th of August, Mr. Boskoski was stating to the

5 media that all that remained was to establish whether the, to use his

6 words, "five terrorists" were "from Ljuboten itself, or whether those

7 terrorists were also imported." And this is in Exhibit P362.

8 As Mr. Saxon has described, this intent to prove the opposite

9 guided Mr. Boskoski in whatever steps he took following the attack on

10 Ljuboten. His failure to ensure a competent investigation was carried

11 out, his failure to punish the perpetrators, and his ongoing

12 justification and rationalisation of the crimes that took place in

13 Ljuboten amounts to a serious abuse of his authority and a serious breach

14 of the public trust.

15 In Naletilic, the Trial Chamber held that Naletilic's failure to

16 punish the soldiers conveyed the message that their behaviour was

17 tolerable. And that can be found at paragraph 28 of the Trial Chamber

18 judgement.

19 The Prosecution submits that a similar situation arises here.

20 The accused Boskoski's failure to hold accountable the people who

21 perpetrated these crimes sent the message that this unlawful conduct

22 would be tolerated by his words. By his actions and by his inactions,

23 Ljube Boskoski helped to create a culture of impunity within the Ministry

24 of Interior. He used his position of authority to shield his

25 subordinates from liability, and to paint those who raised their concerns

1 about these crimes as enemies of Macedonia.

2 This abuse of his power is an aggravating factor that the

3 Prosecution submits the Court should take into account.

4 A further aggravating circumstance is the particular

5 vulnerability of many of the victims, and this factor is cited in the

6 Aleksovski trial judgement at paragraph. In this case, many of the cruel

7 treatment victims were viciously beaten while unarmed and defenceless and

8 in police custody. Many of these victims were already seriously injured

9 and physically incapable of defending themselves, yet the police

10 continued to beat them in various police stations around Skopje.

11 THE INTERPRETER: The interpreters kindly ask the Prosecutor to

12 slow down a bit.

13 MR. DOBBYN: [Previous translation continues] ... the most

14 seriously injured, those who were sent to Skopje City Hospital continued

15 to be beaten by the police. Your Honours, we submit that this is it also

16 an aggravating factor which should be reflected in the sentence.

17 Finally, Your Honours, Mr. Boskoski's clear lack of remorse or

18 sympathy of any kind for the victims deserves consideration by the Trial

19 Chamber. What is disturbing is that, in the many statements Mr. Boskoski

20 has given to the media, not once is there any recognition that innocent

21 civilians may have suffered as a result of the deaths, beatings, and

22 destruction that the villagers of Ljuboten endured.

23 This lack of remorse or lack of any recognise nation the ethnic

24 Albanian residents of Ljuboten have suffered at all is clear in

25 Boskoski's own words. Although this has already been quoted today, it

1 does deserve further consideration, and I refer to the quote from his

2 memoirs where he states: "The political Court in The Hague is a

3 brilliant invention which has nothing do with human rights at all. Why?

4 Because it is being used to incriminate the Macedonian security forces

5 for alleged crimes in Ljuboten, where the security forces of Macedonia

6 actually saved Ljuboten."

7 That is Exhibit P402, ERN N000-9704 to N000-9711 at page 6.

8 These memoirs were published in 2004. So even three years after

9 the crimes in Ljuboten, with all the information that was clear at this

10 point, there's no acknowledgment of any suffering or pain caused by the

11 attack on the village. In fact, according to Mr. Boskoski, it was the

12 police who were the victims and the villagers are actually the

13 beneficiaries of this attack.

14 Your Honours, this clear lack of remorse or sympathy should be

15 certainly be considered as an aggravating factor for the purposes of

16 sentencing.

17 Finally, with regards to Mr. Boskoski, it is an established

18 principle that the Trial Chamber must take into account the general

19 practice regarding sentencing and the domestic jurisdiction, although

20 this is not binding. I refer to the Hadzihasanovic trial judgement at

21 paragraph 2074.

22 While the domestic law of Macedonia provides no guidance for

23 responsibility based on failure to punish, Article 404 of the Macedonia

24 Criminal Code does cover war crimes, including the offences charged in

25 this indictment. It calls for a minimum sentence of ten years

1 imprisonment up to a maximum of life.

2 Taking this into account, along with the gravity of the

3 underlying crimes, and the aggravating factors that the Prosecution has

4 set out, it is our respectful submission that the accused Boskoski is

5 guilty of the crimes that we have alleged in the indictment and that a

6 sentence of 12 years imprisonment would be appropriate.

7 With regards to the accused Johan Tarculovski, I have already set

8 out the gravity of the crimes, so I won't repeat that at this point.

9 In respect of aggravating features, we submit that his direct

10 participation and his presence during the commission of the crimes in

11 Ljuboten is an aggravating factor the Trial Chamber is entitled to

12 consider. We rely on the Banovic sentencing judgement at paragraph 43 in

13 support of this proposition.

14 Again, the vulnerability of the victims is a further aggravating

15 circumstance, at least in regards to the cruel treatment of the victims

16 at Ametovski house Brace's house. These men were unarmed, detained, and

17 utterly incapable of defending themselves.

18 The Trial Chamber in Celebici has also stated that a sadistic or

19 cruel motivation behind the crimes is another aggravating circumstance

20 that can be taken into account. That is at paragraph 1268 of that

21 judgement.

22 Your Honours, the evidence proves that such a motivation was

23 exhibited in this case. The words and above all the actions of the

24 police, while beating the detainees in Ljuboten, clearly demonstrates

25 this.

1 At this point, I would ask that Exhibit P195 be shown. Your

2 Honours, what we see here is a photograph showing a large cross that was

3 carved into the back of the one of the cruel treatment victims at

4 Ametovski house.

5 I would ask now that Exhibit P14 be shown. Your Honours, this

6 shows Atulla Qaili, a victim of cruel treatment in Ljuboten, who, as we

7 heard earlier, arrived at Brace's house already looking like he was going

8 to die.

9 Thank you. That can be taken off now. Thank you.

10 Your Honours, these pictures graphically demonstrate the sadistic

11 cruel motivation behind the crimes the police, led by the accused

12 Tarculovski, committed on 12 August, 2001. This, we submit, is a proper

13 aggravating factor for the Trial Chamber to consider.

14 Furthermore, like the accused Boskoski, Johan Tarculovski has

15 also failed to show any awareness or any sort of remorse for the

16 suffering that may have been caused by his actions; and as with accused

17 Ljube Boskoski, I turn to the accused Tarculovski's own words, or at

18 least the words of his counsel. I refer to paragraph 395 of

19 Tarculovski's final brief, where it states: "Mr. Tarculovski, himself,

20 is not aware that he had person operated any crime, nor caused suffer to

21 go anyone."

22 Again, Your Honours, what is demonstrated is a total lack of

23 awareness or any remorse for his actions and the undoubted suffering that

24 these actions caused. Your Honour, this is a further aggravating factor

25 we invite the Trial Chamber to consider.

1 As I have already mentioned, for the crimes the accused

2 Tarculovski has been charged with, the Macedonian Criminal Code calls for

3 a minimum sentence of ten years imprisonment. In light of the gravity of

4 the offences and the aggravating circumstances, the Prosecution submits

5 that this is a case that is deserving of a substantially longer sentence

6 than the minimum provided for by Macedonia law.

7 And with respect, Your Honours, we submit that a sentence of 15

8 years imprisonment would be appropriate in this case.

9 And, Your Honours, that concludes the Prosecution's submissions.

10 JUDGE PARKER: Thank you, Mr. Dobbyn, and thank you, Mr. Saxon,

11 and all the members of your team, for the assistance that has been given

12 today.

13 We now adjourn. We resume tomorrow at 9.00 in the morning to

14 continue the submissions.

15 --- Whereupon the hearing adjourned at 6.44 p.m.,

16 to be reconvened on Wednesday, the 7th day of May,

17 2008, at 9.00 a.m.

18

19

20

21

22

23

24

25