110915IT

Page 181

1 and behind us, our legal assistants, Ms. Sabine Schulz and

2 Mr. Jacob Nuebel. Thank you.

3 JUDGE GUNEY: [Interpretation] Could we have the appearances for

4 the OTP, please.

5 MR. KREMER: Good morning, Your Honours. Peter Kremer,

6 Matthew Gillett to my left, Matthias Schuster behind us, assisted this

7 morning again by Colin Nawrot, our Case Manager.

8 JUDGE GUNEY: [Interpretation] Thank you very much.

9 This morning is devoted to the submissions of the OTP on appeal.

10 And the representatives of the OTP will have 30 minutes to do so.

11 Sredoje Lukic's counsel will thereafter have 30 minutes to respond. The

12 representatives of the OTP will have up to 15 minutes in reply.

13 Mr. Milan and Sredoje Lukic will then be asked to take the floor if they

14 wish to do so, and I want to underscore - if they wish to do so. And

15 this will be a brief statement that should not exceed ten minutes.

16 I would like now to invite the representatives of the OTP to

17 present their submissions on appeal.

18 MR. GILLETT: Your Honours, as you heard yesterday, the

19 Prosecution largely accepts the cautious and thorough findings set out in

20 the judgement. However, in two discrete instances, the Trial Chamber

21 erred.

22 First, it failed to convict Sredoje Lukic for aiding and abetting

23 extermination at Pionirska Street. The Chamber found that this crime was

24 extermination and convicted Milan Lukic on this basis. The Chamber found

25 that Sredoje Lukic aided and abetted the exact same crime. However,

Page 182

1 instead of convicting him for aiding and abetting extermination, it

2 acquitted him on that count and instead convicted him for aiding and

3 abetting murder. The Appeals Chamber should remedy this error.

4 Second, the Chamber erred when it failed to convict Sredoje Lukic

5 for committing persecution at the Uzamnica camp. It found that he

6 viciously beat Muslim detainees at the camp. It found that he had the

7 discriminatory intent. However, instead of convicting him for committing

8 persecutions, it convicted him merely for aiding and abetting the

9 persecutions at this camp. Again, the Appeals Chamber should remedy this

10 error.

11 In these submissions I will primarily focus on the first ground

12 of appeal, on extermination. I will briefly set out the second ground of

13 appeal, on persecution. And finally, I will offer some remarks about the

14 implications for sentencing if the Prosecution appeal is granted in whole

15 or in part.

16 Turning to the first ground of appeal. Your Honours, in light of

17 its factual findings, the Chamber should have convicted Sredoje Lukic for

18 aiding and abetting extermination at Pionirska Street. As I mentioned,

19 the Chamber held that this massacre, in which 58 Bosnian Muslims were

20 killed, was large scale and was the crime of extermination. It found

21 that Sredoje Lukic provided substantial practical assistance to

22 Milan Lukic and the other perpetrators of this vicious crime. It found

23 that Sredoje Lukic knew that the victims would be killed and that he knew

24 his participation contributed to their murder. When you bear in mind its

25 finding that this was a large group of victims, this shows he was aware

Page 183

1 he was contributing to murder on a large scale, and this satisfies the

2 mental element for aiding and abetting extermination.

3 Although these findings were made by majority, this does not

4 invalidate them. Article 23(2) of the Tribunal's Statute clearly allows

5 Chambers to work by majority. So factually, the judgement establishes

6 that the killings at Pionirska Street were extermination and that

7 Sredoje Lukic aided and abetted these exact same killings.

8 At this stage of proceedings, it's important to focus on the key

9 issue. And the main question is: Was the killing of 58 people

10 sufficiently large scale to constitute extermination?

11 In acquitting Sredoje Lukic on Count 8, the extermination count,

12 the Chamber explained that this was due to dissents on different issues

13 by two of the Judges. You'll recall that Judge Van Den Wyngaert

14 dissented on the large-scale element for extermination and Judge Robinson

15 dissented on whether Sredoje Lukic's conduct met the test for aiding and

16 abetting.

17 However, now that the matter is before the Appeals Chamber, the

18 mechanics of how Judges dissent at trial is not the dispositive issue.

19 Indeed, that question does not need to be addressed for Your Honours to

20 resolve the Prosecution appeal. Instead, the key determination is

21 whether this massacre was large scale. And this is because if it was

22 large-scale, as the Trial Chamber found in its judgement, then it was

23 extermination, and that is the crime that Sredoje Lukic aided and

24 abetted, and that is the crime for which he should be convicted.

25 Looking to the element of large-scale for extermination, the

Page 184

1 Trial Chamber's finding in the judgement is well supported by the guiding

2 law and is entirely reasonable in the circumstances of this case. First,

3 on a simple numerical basis, the Chamber's finding accords with the

4 guiding jurisprudence. As my colleague outlined yesterday, the number of

5 victims killed at Pionirska Street is approximately equal to the

6 68 victims killed in the incident at Brisevo, which the Appeals Chamber

7 recognised as independently qualifying as extermination in the

8 Brdjanin appeal judgement.

9 It's important to note that the Brisevo incident was

10 independently characterised as extermination. In the relevant passage of

11 paragraph 472, the Appeals Chamber did not refer to the many other

12 smaller incidents that were also at issue in Brdjanin. So it's clear

13 that for the five specific incidents that it singled out, including the

14 68 victims at Brisevo, it was holding that they specifically,

15 independently qualified as extermination. This is clear when you look

16 at, in particular, footnote 997 of the appeal judgement and you compare

17 it with para 476 of the trial judgement, which sets out the other smaller

18 incidents.

19 Other judgements of international tribunals have regularly found

20 that the killing of over 50 people is sufficiently large-scale. For

21 example, the killing of around 60 victims was characterised as

22 extermination by the Stakic Trial Chamber, and this is at paragraph 653

23 of the trial judgement. This was undisturbed on appeal.

24 The Krajisnik Trial Chamber found that the Pionirska massacre

25 constituted extermination, that's at paragraphs 699 and 720, albeit it

Page 185

1 was referring to a total of 66 victims.

2 At the Special Court for Sierra Leone, similar-scale killings

3 were found to be extermination in the Sesay trial judgement. These

4 incidents include the killing of 63 victims, as discussed at

5 paragraph 1107; between 30 and 40 victims, as discussed at para 1271; and

6 64 victims, as discussed at paragraph 1449. Again, these findings were

7 undisturbed on appeal.

8 After the briefing period in this case, the ICTR Trial Chamber in

9 the case of Setako found at paragraph 481 that the killing of between

10 30 and 40 victims at a camp independently constituted extermination.

11 So when you look at the guiding jurisprudence, you can see that

12 on a straight numerical basis the Trial Chamber's finding is entirely

13 consistent with the comparable and relevant jurisprudence.

14 Moreover, the factual circumstances in which the Pionirska

15 massacre was committed further confirm that it was properly found to be

16 large-scale. The perpetrators of this crime clearly intended to

17 eradicate a large number of people. Milan Lukic and the other

18 perpetrators, assisted by Sredoje Lukic, killed the Muslim women,

19 children, and elderly people in a callous and premeditated fashion. The

20 execution house had been prepared with an accelerant, and this was to

21 ensure that as many victims as possible would perish in the inferno.

22 After they set the house on fire, the perpetrators stood around and shot

23 with weapons at victims who attempted to escape. Clearly, they intended

24 to kill the entire large group of victims and not just a few individuals

25 within that group.

Page 186

1 In her dissent on the large-scale element, Judge Van Den Wyngaert

2 argues that extermination should be reserved for killings of an extremely

3 large scale. However, her approach is premised on an erroneous view of

4 the law.

5 At the outset of her dissent, she states, and I quote:

6 "... the crime of extermination almost necessarily must be of

7 such a scale ... as to be prohibitive to identifying, naming, or counting

8 the victims with specificity ..."

9 That is incorrect. Just because the victims may be identified or

10 counted does not preclude a conviction for extermination.

11 In support of this proposition, Judge Van Den Wyngaert cited

12 exclusively to the Ntakirutimana appeal judgement. However, she

13 misinterpreted the relevant passage. At para 521 of that judgement, the

14 Appeals Chamber clarified that it is unnecessary to identify specific

15 victims in order to prove the crime of extermination. However, that does

16 not mean that if the victims are identified then the crime cannot be

17 extermination. The relevant passage simply cannot be read in that

18 manner.

19 Moreover, if Judge Van Den Wyngaert's approach were accepted, it

20 could lead to absurd results. Taken to its logical conclusion, it would

21 mean that a mass killing could not be characterised as extermination so

22 long as the perpetrator kept a list of the victims or the victims could

23 otherwise be identified. The Appeals Chamber should not accept such a

24 restrictive approach.

25 Judge Van Den Wyngaert insists that an extremely high threshold

Page 187

1 should be required in order to reflect the gravity of the crime.

2 However, the current jurisprudence adequately deals with this issue.

3 Where the killing involves an extremely large number of victims, far

4 exceeding the threshold required for extermination, this can be taken

5 into account in sentencing as an aggravating factor. That's set out in

6 the Ndindabahizi appeal judgement, at paragraph 135.

7 Against this backdrop, the Trial Chamber's finding that the

8 Pionirska Street massacre was extermination is well-founded in the

9 jurisprudence and is entirely reasonable. Given that Sredoje Lukic aided

10 and abetted this exact same crime, his acquittal as an outcome of the

11 trial judgement is not only wrong in law but it conflicts with the

12 findings set out in that same judgement. The Appeals Chamber should

13 remedy this error and find that Sredoje Lukic contributed to and was

14 aware that he was contributing to murder on a large scale. Accordingly,

15 it should convict him of aiding and abetting extermination.

16 Turning to the Prosecution's second ground of appeal.

17 Your Honours, during 1992 and 1993, Sredoje Lukic viciously beat Muslim

18 detainees at the Uzamnica camp. He had the discriminatory intent. That

19 was found in the judgement. Consequently, he should have been convicted

20 for committing persecution against those detainees. At paragraph 990 of

21 the judgement, the Chamber found that it was:

22 "... satisfied that Sredoje Lukic repeatedly and severely beat

23 detainees ... in the Uzamnica camp ..."

24 At paragraph 1039, the Chamber found that Sredoje Lukic had the

25 discriminatory intent required for persecution. In light of these

Page 188

1 findings, the Chamber should have put them together and found that he

2 committed, rather than merely aided and abetted, persecutions at the

3 Uzamnica camp. The Chamber's failure to do so was a clear error. It

4 provided no reason whatsoever of convicting him only of aiding and

5 abetting. Moreover, for the comparable charges of cruel treatment and

6 inhumane acts, on the same factual basis it did convict him for

7 committing. So this is a clear error. Again, the Appeals Chamber should

8 exercise its corrective function and set the record straight.

9 Your Honours, if the Prosecution's appeal is granted, in whole or

10 in part, the Appeals Chamber should increase Sredoje Lukic's sentence.

11 Although the factual basis of his liability would remain the same, the

12 legal characterisation of his conduct would be more serious. In relation

13 to Count 1, he would be convicted of aiding and abetting extermination

14 rather than murder. Extermination is a more serious crime because of the

15 additional large-scale element. In relation to ground 2, he would be

16 convicted of committing, rather than aiding and abetting, persecution,

17 and committing is a more serious mode of liability in general than aiding

18 and abetting. This justifies a higher sentence.

19 The Appeals Chamber of the ICTY and the ICTR has recognised that

20 a more serious legal characterisation justifies an increase in sentence

21 even where the factual basis of the conviction remains the same. This

22 can be found, for example, in the Semanza appeal judgement at the ICTR at

23 paragraphs 355, 364, and 388, that's when these paragraphs are read

24 together as a whole.

25 In conclusion, Your Honours, I would repeat that although the

Page 189

1 Chamber's cautious and thorough findings are well-founded and reasonable,

2 in these two discrete instances it did err. The Chamber's errors result

3 in a contradictory outcome, where all the elements of the crimes and the

4 modes of liability have been proved, but the appropriate convictions have

5 not been entered. The Appeals Chamber should remedy these errors and

6 correctly convict Sredoje Lukic for aiding and abetting extermination at

7 Pionirska Street and for committing persecution at the Uzamnica camp.

8 If Your Honours have no questions, that concludes my primary

9 submission.

10 JUDGE GUNEY: [Interpretation] Thank you very much. I now invite

11 the counsels of Sredoje Lukic to present their submissions in response.

12 You have the floor.

13 MR. DIECKMANN: Good morning, Your Honours. Thank you very much.

14 Your Honours, the Defence of Sredoje Lukic submits that both

15 Prosecution grounds of appeal as stated in the Prosecution's appeal brief

16 and following -- followed by submissions today are entirely without merit

17 and should be treated as such in the instant appellate proceedings. The

18 first issue upon which Prosecution premise its appeal is that the

19 Trial Chamber erred in law by failing to convict Sredoje Lukic for aiding

20 and abetting the extermination of 59 Muslim civilians at

21 Pionirska Street. This issue will be addressed first.

22 Secondly, the Defence will present oral submissions on the first

23 question of Appeals Chamber's order from 6th September, 2011. And

24 finally, the Defence is prepared to address the second ground of the

25 Prosecution's appeal, followed by short remarks regarding sentencing.

Page 190

1 Your Honours, with regard to extermination, the Trial Chamber

2 acquitted Sredoje Lukic of having committed or aided and abetted in the

3 commission of the crime of extermination. We submit that this finding

4 was and remains in full accordance with Article 23(2) of the Statute as

5 well as with Rule 92 ter (C) of the Rules of Procedure and Evidence.

6 Your Honours, the Trial Chamber Judges clearly outlined and

7 explained the reasoning of the majority finding in para 953 of the trial

8 judgement, dealing with Count 8 of the indictment, that is, the

9 Pionirska Street incident. I may quote:

10 "The Trial Chamber recalls that the factual findings concerning

11 Sredoje Lukic's participation in Pionirska Street incidents were reached

12 by majority, Judge Robinson dissenting. As Judge Van Den Wyngaert's

13 dissent concerning Count 8 relates to the legal qualification of the

14 crime as extermination, there is no majority for a conviction of

15 Sredoje Lukic for extermination. Consequently, Trial Chamber acquits

16 Sredoje Lukic of having committed or aided and abetted in the commission

17 of the crime of extermination."

18 Your Honours, this finding is a logical and lawful consequence of

19 the positions of the three Judges. Only one Judge of three voted in the

20 positive on the two necessary requirements for a conviction of aiding and

21 abetting extermination. And instead, Prosecution's submissions today,

22 the mechanism of judgement finding is indeed a matter in this appeal.

23 Judge David considered the act and conduct of Sredoje Lukic as a

24 practical assistant, having a substantial effect on the commission of the

25 crime. In addition, Judge David is of the opinion that Sredoje Lukic --

Page 191

1 THE INTERPRETER: Please slow down.

2 MR. DIECKMANN: I will try. Thank you.

3 -- that Sredoje Lukic knew that his acts and conduct contributed

4 to the criminal act.

5 Furthermore, Judge David found that the killing of the 59 persons

6 constitutes extermination. Therefore, the vote of Judge David was that

7 Sredoje Lukic aided and abetted crime of extermination.

8 In sharp contrast, Judge Van Den Wyngaert held that the killing

9 of the 59 --

10 JUDGE GUNEY: [Interpretation] Kindly slow down, please, sir, for

11 the sake of the interpreters.

12 MR. DIECKMANN: I'll try. Thank you very much. I'm sorry.

13 In sharp contrast, Judge Van Den Wyngaert held that the killing

14 of the 59 Muslim civilians does legally not qualify as extermination.

15 Therefore, her vote was that Sredoje Lukic is to be acquitted of the

16 crime of extermination, even she supported a conviction of Sredoje Lukic

17 for aiding and abetting murder for the same incident.

18 Judge Robinson held, on the one hand, that there is no credible

19 evidence showing that Sredoje Lukic rendered practical assistance,

20 encouragement, or moral support which had a substantial effect on the

21 perpetration of the crimes of murder. On the other hand, Judge Robinson

22 held that killing of the 59 persons fulfils legal requirement of

23 extermination. Consequently, Judge Robinson vote to acquit Sredoje Lukic

24 of extermination.

25 Your Honours, this reasoning, implying diverging majorities is in

Page 192

1 itself clear, it's concise and logical. A vote of a Trial Chamber Judge

2 only counts as a yes in favour of a conviction if the Judge is satisfied

3 that all factual and legal requirements are fulfilled for the individual

4 accused. Therefore, we have here just one yes and two no votes with

5 regard to a conviction of Sredoje Lukic for aiding and abetting

6 extermination.

7 Your Honours, from para 5, 6, and 7 of Prosecution's appeal

8 brief, as well as following their submissions today, it can be easily

9 inferred that the Prosecution is in fact of the view that the legal

10 findings for Milan Lukic in relation to the numerical threshold of crime

11 of extermination should also have been binding on the Trial Chamber when

12 assessing Sredoje Lukic's individual criminal responsibility. Taking

13 into account Rule 87(B) of the Rules of Procedure and Evidence, the

14 Prosecution's view is quite astonishing. Rule 87(B) provides, in the

15 second sentence, that:

16 "If two or more accused are tried together under Rule 48,

17 separate findings should be made as to each accused."

18 This is exactly what Trial Chamber did when acquitting

19 Sredoje Lukic for aiding and abetting extermination. It is respectfully

20 submitted that Prosecution failed to present a sufficient legal

21 foundation for this ground of appeals in the written brief and in their

22 submission today.

23 In order to substantiate this ground of appeal, Prosecution

24 solely referred to Prlic appeals decision on evidence, para 27, where the

25 quote reads as follows:

Page 193

1 "Whenever a Chamber renders a decision in accordance with the

2 Statute, the decision is that of the Chamber and not merely a bundle of

3 opinions of individual Judges."

4 In footnote 22 of Prosecution's appeal brief, Prosecution itself

5 indeed underlines that the subject matter of this Prlic appeals decision

6 "differs from the issues at hand." Nevertheless, and without any

7 explanation or justification, the Prosecution simply asserts that the

8 reasoning in placing such reliance upon Prlic appeals decision was due to

9 the case being "applicable in analogy" to the instant proceeding in the

10 Lukic case.

11 In addendum to its written submissions and in its response to

12 Prosecution's appeal brief, the Defence of Sredoje Lukic submits today

13 that the Prosecution did not show in its appeals submissions that a

14 comparable procedural situation exists allowing an application in

15 analogy. In fact, the Prosecution fails to mention that the essence of

16 para 27 of Prlic decision is that an appellant cannot claim a violation

17 of his fair trial rights on the fact that one Judge dissented on the

18 non-admission of certain evidence. The appellant in the Prlic appeals

19 proceedings, an interlocutor appeal, claimed that in his case the

20 majority -- the minority Judge shall be entitled to rely upon the

21 non-admitted evidence when Trial Chamber has finally to render its trial

22 judgement.

23 The Appeals Chamber, in para 27 of Prlic decision, further

24 stated - and the Prosecution left this part of the quotation in

25 footnote 22, I may quote:

Page 194

1 "In this case, the Trial Chamber decided, albeit by majority, not

2 to admit certain documents tendered into evidence. The effect of this

3 decision is as such that these documents do not form part of the record.

4 Several venues are open for the appellant to challenge this decision,

5 including motions for reconsideration and a review interlocutory appeal

6 for appeal on the merits. However, if such challenges fail, the parties

7 and Judges are bound to refer themselves to the record of the case."

8 This is how situation in Prlic differs from our case, and we

9 refer to Rule 87(A) of the Rules, which provides as follows:

10 "When both parties have completed their presentation of the case,

11 the Presiding Judge shall declare the hearing closed and Trial Chamber

12 shall deliberate in private."

13 In the Lukic case, there is simply no venue open for Defence to

14 challenge a Chamber's finding once Judges are in the stage of

15 deliberations. There is no possibility anymore to issue motions for

16 reconsideration or review or interlocutor appeal --

17 THE INTERPRETER: Please slow down.

18 MR. DIECKMANN: I'm sorry.

19 There is one judgement based on the admitted trial evidence. As

20 a result, the situation in Prlic cannot be compared with our case.

21 Your Honours, with regard to further Defence submissions in

22 attesting to the erroneous raising of this issue by Prosecution in its

23 first ground of appeal, Defence respectfully refers to our written

24 response to Prosecution's appeal, paras 22 through 30.

25 Your Honours, with your leave, with regard to the first question

Page 195

1 of Appeals Chamber's order from 6th September, 2011, as well as

2 addressing the first question of Judge Liu from yesterday, the Defence of

3 Sredoje Lukic respectfully submits the following.

4 ICTY jurisprudence has established that extermination requires

5 the same physical elements as murder but with additional requirement that

6 the killings occur on a massive scale. In Stakic, the Appeals Chamber

7 ruled:

8 "That the actus reus of extermination is the act of killing on a

9 large scale. The actus reus also includes subjecting a widespread number

10 of people or systematically subjecting a number of people's conditions of

11 living that would inevitably lead to death."

12 Para 259 of appeals judgement.

13 The same Appeals Chamber judgement was said:

14 "The expressions on a large scale or large number do not,

15 however, suggest a numerical minimum."

16 Para 260.

17 The Trial Chamber in Lukic referred to several trial judgements

18 in the -- in its findings. First they referred to Krajisnik, the

19 Trial Chamber judgement in Krajisnik, where Chamber indeed considered,

20 inter alia, the Pionirska Street incident and found that the killings

21 during this incident individually fulfilled the requisite level of

22 massiveness. However, also the Trial Chamber in Krajisnik has held that

23 several incidents individually were considered to be massive. The

24 Trial Chamber relied on several incidents as a whole, para 721.

25 Finally, Krajisnik was found guilty of extermination for the

Page 196

1 death of approximately 3.000 people. It should be noted that Krajisnik

2 has been finally acquitted, and so Appeals Chamber, due to our

3 interpretation, did not confirm these findings. He was acquitted for

4 committing extermination since the crime was outside the scope of the JCE

5 in which Krajisnik had participated.

6 In addition, the Trial Chamber in Stakic also stated that several

7 incidents of killings individually met the threshold of massiveness, but

8 the Appeals Chamber in Stakic relied on an entire series of incidents in

9 which a total of 1.500 individuals were killed.

10 And, indeed, in Brdjanin, Appeals Chamber apparently acknowledged

11 that five incidents of mass killings, each of which resulted in the death

12 of between 68 or 300 victims, were of such scale as to meet the threshold

13 of massiveness. But in any case, ultimately, in para 472 of Brdjanin,

14 Brdjanin was found guilty of extermination for the death of 1.669 people.

15 In any event, it should be emphasized that in finding --

16 JUDGE GUNEY: [Interpretation] Kindly slow down to allow the

17 interpreters to do their work properly and to enable us to collect our

18 thoughts. Thank you.

19 MR. DIECKMANN: I apologise, Your Honour. Thank you very much.

20 In any event, it should be emphasized that in finding the

21 respective accused guilty of extermination, the three Chambers in

22 Krajisnik, Stakic, and Brdjanin finally aggregated all the indicted

23 killings that occurred during the time-frame of the respective

24 indictments. All of them did not have to decide extermination fulfilled

25 by a single incident.

Page 197

1 In the Blagojevic case, the finding of Trial Chamber refers to a

2 single murder operation - this is the wording of the Trial Chamber - but

3 this led to the death of more than 7.000 people. Blagojevic

4 Trial Chamber judgement para 577, whereby clearly fulfilling the

5 large-scale requirement.

6 It's our submission that this substantial difference between the

7 Lukic case and this re-judgement has not been considered appropriately by

8 the Trial Chamber in the Lukic case.

9 With regard to the additional criterions, the Trial Chamber

10 placed particular emphasis, some remarks. First of all, the Defence

11 submits that the vulnerability of victims has little, if any, bearing on

12 the massiveness of the crimes, and it does not at all affect the key

13 requirement of scale and should therefore totally be left out of account.

14 Regarding planning and preparation, it's clear that the

15 Appeals Chamber jurisprudence unequivocally rejected the suggestion that

16 the plan or policy is an element of the crime of extermination, referring

17 to Krstic Appeals Chamber judgement para 225.

18 And all the references given by the Prosecution today also

19 referred to series of incidents.

20 With regard -- with regard to the issue of low population

21 density, we concur with Judge Van Den Wyngaert and her position in her

22 dissenting opinion, Lukic Trial Chamber judgement para 1119.

23 Your Honours, a rather restrictive approach, as favoured and supported by

24 Judge Van Den Wyngaert, would enable Chambers to distinguish more clearly

25 between extermination and murder. And we refer to

Page 198

1 Judge Van Den Wyngaert's position on para 1120 in the Lukic trial

2 judgement.

3 The Prosecution left Appeals Chamber without answer to the

4 question how to differ multiple murder cases from extermination cases

5 from a low scale. And we concur with Judge Van Den Wyngaert in her

6 dissenting opinion, telling:

7 "Indeed I'm concerned that if we find that mass killings of

8 increasingly low scale to be extermination, then this inadvertently

9 suggests that the charge of murder is not significant enough to convey

10 the seriousness of crimes."

11 [Defence counsel confer]

12 MR. DIECKMANN: Your Honours, with regard to Prosecution's second

13 ground of appeal, we submit it has to be dismissed entirely. The

14 Prosecution premised its second ground of appeal on the fact that

15 Trial Chamber erred in law by failing to convict Sredoje Lukic for

16 committing persecutions in relation to the beatings at Uzamnica camp.

17 Trial Chamber found Sredoje Lukic guilty of aiding and abetting

18 persecutions in relating to Uzamnica camp beatings.

19 First and foremost, it is in a way surprising that Prosecution

20 requests for a conviction of Sredoje Lukic for committing persecution

21 with regard to the beatings in the Uzamnica camp in the Prosecution's

22 appeal, but stating in its Prosecution response to Sredoje Lukic appeal

23 brief on para 186 through 188 that Sredoje Lukic fulfilled the necessary

24 actus reus and mens rea for aiding and abetting persecutions with regard

25 to Uzamnica beatings. So from the first starting point, the position of

Page 199

1 Prosecution is contradictory and inconsistent.

2 Secondly, Your Honours, the Defence of Sredoje Lukic reinforce

3 its position that Trial Chamber erred in fact and/or in law convicting

4 him for the crimes in Uzamnica camp at all. This is in fact the case of

5 Sredoje Lukic with regard to the Uzamnica camp beatings. The Defence of

6 Sredoje Lukic avers that no reasonable Trial Chamber could have found

7 that Sredoje Lukic was involved in any criminal acts in Uzamnica camp.

8 In consequence, the Defence submit that the admitted evidence does not

9 support a conviction of Sredoje Lukic for persecutions at Uzamnica at

10 all.

11 Your Honours, in its Defence appeal brief, the Defence had

12 exhaustively elaborated in subground 8(A) that no reasonable

13 Trial Chamber would have found that evidence by the four Prosecution

14 witnesses for Uzamnica camp was credible with regard to the participation

15 of Sredoje Lukic in Uzamnica camp incident. The Defence refers --

16 JUDGE GUNEY: [Interpretation] You have five minutes left before

17 concluding. Thank you.

18 MR. DIECKMANN: Thank you, Your Honours.

19 The Defence refers to para 238 through 242 of its appeal brief

20 with regard to Nurko Dervisevic, para 243 through 248 with regard to

21 Islam Kustura, para 249 through 253 with regard to Adem Berberovic. And

22 secondly, the Defence submitted under subground 8(B) the Trial Chamber

23 erred in law by applying an erroneous and incomprehensible method of

24 evidentiary reasoning and decision-making.

25 Your Honours, yesterday we heard about the standards established

Page 200

1 by the ICTY Appeals Chamber in the Kupreskic appeal judgement. The

2 Defence of Sredoje Lukic urged you to apply these standards to

3 Trial Chamber judgement with regard to Sredoje Lukic's conviction for

4 participating in beatings at Uzamnica camp, including persecution.

5 Accordingly, Sredoje Lukic had to be acquitted for all related charges,

6 including aiding and abetting persecutions, and in consequence also the

7 second ground of Prosecution's appeal has to be dismissed.

8 The Defence submits that the Trial Chamber did neither proceed

9 with extreme caution when assessing conflicting witness identifications

10 made under established difficult circumstances, nor did the Chamber

11 provide a reasoned opinion carefully articulating the factors it relied

12 upon in support of the identifications.

13 Regarding sentencing, Your Honours, we refer to ground of

14 appeal 15 of Sredoje Lukic appeal brief para 310 to 341. As a concluding

15 remark, Your Honours, by and through his counsel, Sredoje Lukic

16 respectfully submits that when considered, both in isolation and in

17 aggregate, the Prosecution has failed completely to proffer any

18 meritorious grounds for appeal to be appropriately considered by the

19 Appeals Chamber. Sredoje Lukic respectfully requests that the

20 Appeals Chamber reflects that accurately in dismissing the entire

21 Prosecution's appeal.

22 Thank you very much, Your Honours. This concludes my

23 submissions.

24 JUDGE GUNEY: [Microphone not activated]

25 THE INTERPRETER: Microphone, Your Honour, please.

Page 201

1 JUDGE GUNEY: [Interpretation] I would now like to ask the

2 Prosecution to respond. You have ten minutes.

3 MR. GILLETT: Thank you, Your Honour.

4 Your Honours, Sredoje Lukic has failed to undermine the

5 Prosecution's arguments in support of both its appeal grounds. Instead,

6 he has concentrated on issues in particular in relation to the first

7 ground of appeal on extermination at Pionirska Street, issues which are

8 not essential to the determination of the appeal at this stage of

9 proceedings. He has repeated his argument that the Prosecution approach

10 would essentially force Judges to vote against their will. However, this

11 is not the dispositive issue. Rather, the issue is whether this crime

12 was large-scale. For the reasons I've already mentioned, it was properly

13 characterised as such.

14 My learned friend has said that the determination in the

15 judgement that the Pionirska Street massacre was large-scale in relation

16 to Milan Lukic should not apply to Sredoje Lukic. We entirely disagree

17 with this position. These were not two separate killings. This was the

18 same event. This was the same crime. In the judgement, the majority

19 properly found that this was extermination. Sredoje Lukic aided and

20 abetted his cousin Milan and the other perpetrators in this exact same

21 crime.

22 Your Honours should not add your seal of approval to an outcome

23 where all the elements of the crime and the mode of liability are proved

24 but a conviction is not entered. You should correct this error.

25 Now, my learned friend for the Defence has mentioned the

Page 202

1 contextual factors that the Trial Chamber took into account. He mentions

2 in particular the population density issue. I would reiterate at the

3 outset that the Chamber's finding is in line with the guiding

4 jurisprudence on a basic numerical basis. The judgements that I've

5 mentioned speak for themselves. However, the contextual factors indeed

6 provide further confirmation that the Pionirska Street incident was

7 properly characterised as large-scale. The circumstances show that this

8 was a single mass killing event and that the perpetrators intended to

9 kill all the victims. Taking into account the population density of the

10 victims' home village was entirely reasonable. For the victims and their

11 families, the effect of this killing was massive. The vast majority of

12 the victims were members of the Kurspahic family from Koritnik, a small

13 village with a population of around 60 inhabitants, maybe slightly more.

14 This village was decimated by this mass killing. It was a devastating

15 event. In the circumstances of this case, this was an appropriate factor

16 to take into account.

17 Sredoje Lukic knew Hasib Kurspahic and he knew the Kurspahic

18 family. He would go to their house before the event and so he knew of

19 the locality where these victims came from. Moreover, as he helped herd

20 these victims into the Omeragic house, which had been prepared for their

21 execution, he saw them walking past him. He knew the size of this group

22 and how many victims were intended to perish in this fire. Nonetheless,

23 he continued to participate in this crime.

24 Now, when you assess this key element of large scale, I would

25 suggest that you should ask yourself the following question: If you read

Page 203

1 in the newspaper that there had been a killing of 58 people and you

2 wanted to describe this to your neighbour, would you call this a

3 large-scale killing? Your Honours, the Chamber looked at the relevant

4 jurisprudence, it looked at the relevant circumstances, and in the body

5 of the judgement it reached the proper conclusion that this was killing

6 on a large scale.

7 On ground two, I won't respond to the substance, as that has

8 already been addressed by my colleague Mr. Schuster yesterday. I would

9 simply clarify that in the Prosecution response to Sredoje Lukic's appeal

10 we were defending the conviction as entered in the judgement. This is an

11 entirely separate matter from our appeal here today, which seeks to

12 remedy what we say is an error in the judgement. So there is no

13 inconsistency there.

14 Your Honour, these two errors emerging from the judgement as a

15 whole end in an incoherent result where all the elements of the crimes

16 and all the elements of the modes of liability for the respective

17 offences have been proved. The convictions that were appropriate,

18 however, were not entered. Your Honours should correct these errors and

19 ensure a proper outcome at the end of these proceedings.

20 Unless you have any further questions, that concludes the

21 submissions for the Prosecution.

22 [Appeals Chamber confers]

23 JUDGE GUNEY: [Interpretation] Thank you very much.

24 I would now invite the appellants to take the floor if they so

25 wish.

Page 204

1 Mr. Milan Lukic, would you like to speak?

2 THE APPELLANT M. LUKIC: [Interpretation] Yes, I do, as a matter

3 of course.

4 JUDGE GUNEY: [Interpretation] Mr. Milan Lukic, I would like first

5 to remind you that this is a public hearing and that the witness

6 protection measures still stand. You're therefore strictly forbidden to

7 quote confidential information or do anything as to reveal the identity

8 of protected witnesses. Have I been understood, Mr. Lukic?

9 I remind you that you have ten minutes. You have the floor.

10 THE APPELLANT M. LUKIC: [Interpretation] I have understood you

11 fully. Should I stand up or -- so that you can see me all?

12 JUDGE GUNEY: [Interpretation] As you like.

13 THE APPELLANT M. LUKIC: [Interpretation] I wish you to see me

14 all.

15 Your Honours, I want you and the public as a whole to know that

16 before you are sitting innocent persons, Milan Lukic and Sredoje Lukic,

17 convicted by the first-instance judgement for the crime we have not

18 committed. Gentlemen, the Milan Lukic who is addressing you now is not a

19 murderer or a fascist. I will explain this in a short time who I am and

20 what function I performed during the war in Visegrad.

21 As I do not have sufficient time, I am restricted in terms of

22 time, and I have written what I do not have enough time to say in my

23 book, which was published both in English and in Serbian and with a

24 circulation of 20.000 copies.

25 Milan Lukic fought in a chivalrous manner and acted likewise

Page 205

1 during the war and peace and now at the Detention Unit in Hague. That

2 means in a humane and honourable manner. This was how I was born. I

3 will remain like that until the day I die. Please look at my face and my

4 eyes, Your Honours. Do I look like a monster, like someone who would be

5 capable of killing children, women, the elderly, or anyone?

6 Gentlemen, what can I do when I'm a Serb? I was born a Serb and

7 I cannot do anything about it. As you have seen my face and my eyes,

8 that is important. My eyes and face should bring liberty to me and also

9 to the innocent man next to me, Sredoje Lukic. If you stick to law and

10 justice, Your Honours, I trust you, Your Honour, and I believe that we

11 will be acquitted. The ICTY Prosecution on the basis of honourable

12 Muslim witnesses described this Milan Lukic as having blue eyes, a mole

13 above my lip, tattoos on my arms. On the basis of this description and

14 the evidence of OTP witnesses, the Prosecution issued an Interpol warrant

15 with number 1D22-381. That's the Serbian version. The English version

16 is number 1D22-0494. The number of the warrant in Argentina was

17 AD 37/9-2001. However, gentlemen, I do not have blue eyes or a mole

18 above my lip. As for tattoos, I have never had them nor would I ever put

19 them on my body.

20 Are there any tattoos at the ICTY Detention Unit? American

21 expert Jenkins established and confirmed that there are no tattoos. This

22 American expert Jenkins spent 30 years serving the US police as an

23 expert. He told my Defence, my attorneys, and myself that after two

24 hours I would be set free in the United States, and I have been sitting

25 here for six years though I'm innocent.

Page 206

1 Your Honours, yesterday the Presiding Judge mentioned that I used

2 to live in Pionirska Street in Visegrad together with my parents. I

3 claim that I have never ever in my life lived in Pionirska Street. My

4 parents, until December 1992, lived in their village of Rujiste, which is

5 20 kilometres away from Visegrad. In December 1992, the entire village

6 moved out. People were brought to the town, accommodated. And once the

7 war ended, they were sent back because that was the first line of the

8 front. That is the whole truth.

9 Secondly, the Prosecution charged me for being the head of the

10 White Eagles, a paramilitary formation, me, Milan Lukic. The witnesses

11 have been telling us that the White Eagles committed crimes in Visegrad,

12 that they are a gang, that they committed crimes in Visegrad, and I

13 agree. But, gentlemen, I, Milan Lukic, have nothing to do with the

14 White Eagles or any other paramilitaries in Visegrad, because when the

15 war broke out in Visegrad and when various gangs were active in the town,

16 I was still in Switzerland, in Zurich, where I worked as a barman. I was

17 a mere mortal. It was only on the 6th of May, 1992, that I came to

18 Visegrad to pull out my parents from their village, from hell, because I

19 had an apartment in Belgrade. That was when I was deployed as a member

20 of reserve policemen, as a body-guard of the police commander

21 Dragan Tomic. This honourable man used to be my teacher in high school.

22 He knew who I was and what I was like, that I was devoted and honourable,

23 and this is why he took me to have me next to him.

24 I stayed with Tomic up until the 19th of July in the police, the

25 reserve forces, until he got killed. Mr. Dragan Tomic lost his life, and

Page 207

1 my other two friends Vidoje and Mladen Andric who were also his

2 body-guards. While escorting Mr. Tomic, I also discharged other

3 duties --

4 JUDGE GUNEY: [Interpretation] Mr. Milan Lukic, think of

5 concluding, please.

6 THE APPELLANT M. LUKIC: [Interpretation] Has it already been ten

7 minutes? I will conclude, certainly. Thank you.

8 While a member of the reserve police force, I discharged other

9 duties just like other 200 policemen. I fought in the woods. I never

10 mistreated anyone, nor did my colleagues. In early August 1992, I was

11 deployed as a private in the Army of Republika Srpska. On the basis of

12 important facts which I just mentioned, I should be acquitted and the

13 trial should be repeated. The OTP should have checked, before charging

14 innocent people, whether this was the truth or whether it was fabricated.

15 Your Honours, it is known who ruled, who was obeyed. There was

16 the commander of the Crisis Staff, the chief of police in Visegrad; it

17 turns out that a reserve policeman and a professional policeman were

18 superior to their own superiors. That could not happen anywhere but

19 here. So Sredoje and myself, as innocent men, should be held accountable

20 for somebody else's crimes? In order to avoid shame at ICTY because the

21 OTP fabricated the charges, if the investigators acquitted those who were

22 the real masters of life and death in Visegrad, they should be nominated

23 for the Nobel Peace Prize, but I do not wish to be held accountable for

24 what I did not do. I do not wish to serve prison sentence for something

25 I haven't done.

Page 208

1 Your Honours, we all know that each man in the world has his own

2 price. Why shouldn't one of the ICTY investigators have his price in

3 this case? You may conclude what you think. I don't know what else to

4 conclude, because the human mind cannot grasp all the lies the OTP used.

5 In order not to waste our time about OTP witnesses, I will tell

6 you who are the persons who provided evidence on the basis of which we

7 were convicted. First of all, let me mention a woman called

8 Bakira Hasecic. 95 per cent of her statements were submitted to ICTY.

9 She was taking statements from false witnesses and submitted them to

10 ICTY. I will mention the facts about this person. While the

11 hydro-electric power-plant in Visegrad was taken by extremist group

12 before the outbreak of the war in Visegrad, they planted explosive on the

13 hydro-electric power plant and they threatened to blow everything up.

14 Then they kidnapped a group of policemen of Serbian ethnicity who were

15 discharging their duties and put them in the tunnel below the

16 hydro-electric power plant. The main person present there was

17 Bakira Hasecic. She beat and tortured the policemen with her gang.

18 Instead of water, they forced the policemen to drink urine and to --

19 JUDGE GUNEY: [Interpretation] You have already spoken over ten

20 minutes. How many minutes do you still need?

21 THE APPELLANT M. LUKIC: [Interpretation] Not many, Your Honours,

22 so please allow me. It won't be long.

23 JUDGE GUNEY: [Interpretation] All right.

24 THE APPELLANT M. LUKIC: [Interpretation] Thank you.

25 What I'm telling you has been documented by TV footage, and this

Page 209

1 gentleman was among the maltreated policemen, I mean Mr. Sredoje Lukic.

2 The war did not begin in Visegrad. It was the outbreak of the

3 war, when the JNA came to Visegrad and liberated the hydro-electric power

4 plant, where Bakira Hasecic fled to Sarajevo with her gang and never

5 returned to Visegrad. After the war, to protect herself, she established

6 an association of women victims of war, and she was the head of it.

7 Whenever any Prosecutor's office throughout the former Yugoslavia or from

8 ICTY needed statements, she would then fabricate stories and take

9 statements from them. In Sarajevo she was investigated and in the Sipcic

10 and others cases it was proved that she forced people to make false

11 testimonies against people. Before the war she was a friend of

12 Risto Perisic and Branimir Savovic, who were those who decided about the

13 life and death of people in Visegrad. These were the commander of the

14 Crisis Staff and the chief of the police in Visegrad.

15 [No interpretation]

16 JUDGE GUNEY: [Interpretation] You are still given two minutes to

17 complete your --

18 THE APPELLANT M. LUKIC: [Interpretation] -- probably colluded so

19 that she provide protection to innocent Muslim people and they would

20 provide her with cover. As for Huso Kurspahic, that's a different story

21 all together. He was a hearsay witness and it's a story out of a horror

22 movie. He said 70 people were in Pionirska Street, and I found 20 of

23 them alive and spoke to them on the telephone from the Detention Unit.

24 When he gave an interview to the TV, he said that it was all

25 rigged. As for Hamdija Vilic, that man threw a grenade into a cafe after