Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12771

1 Friday, 18 May 2007

2 [Ruling - Rule 98 bis]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.14 p.m.

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

7 IT-05-87-T, the Prosecutor versus Milutinovic et al.

8 JUDGE BONOMY: Thank you. The Trial Chamber is seized of motions

9 for acquittal from each of the accused made pursuant to Rule 98 bis, and

10 today we render our decision disposing of these motions. We are bound to

11 deliver our decision orally, including our reasons. I will therefore read

12 the Chamber's decision in full.

13 On the 1st of May, after the Prosecution closed its case in chief,

14 the Chamber immediately invited the Defence for the six accused to make

15 their submissions pursuant to Rule 98 bis. On 1st to 3rd May, each of the

16 accused made oral submissions moving the Chamber to acquit them upon all

17 five counts in the indictment. On 3rd, 4th, and 7th May the Prosecution

18 responded to the motions for acquittal. On 7th May, some of the accused

19 made brief submissions in reply, after which the Chamber adjourned to

20 consider the matter. The Chamber informed the parties that it would

21 render its oral ruling on 18 May. That is today.

22 The legal standard is set out in Rule 98 bis as amended as

23 follows: "At the close of the Prosecutor's case, the Trial Chamber shall,

24 by oral decision and after hearing the oral submissions of the parties,

25 enter a judgement of acquittal on any count if there is no evidence

Page 12772

1 capable of supporting a conviction."

2 That Rule falls to be applied separately to each of the five

3 counts in the indictment in respect of each of the six accused.

4 The test to be applied is whether there is evidence upon which, if

5 accepted, a tribunal of fact could be satisfied beyond reasonable doubt of

6 the guilt of the particular accused on the count in question. The test is

7 not whether a Trial Chamber would in fact convict beyond reasonable doubt,

8 but rather whether it could do so.

9 Therefore, where there is no evidence to sustain a count, the

10 motion will be granted. Where there is some evidence, but it is such

11 that, taken at its highest, a Trial Chamber could not convict on it, the

12 motion will also be granted.

13 Where there is some evidence but it is such that its strength or

14 weakness depends upon the view taken of a witness's credibility, and on

15 one possible view of the facts a Trial Chamber could convict on it, the

16 motion will not be granted. However, if the only relevant evidence is so

17 incapable of belief that it could not properly sustain a conviction even

18 when the evidence is taken at its highest for the Prosecution, then the

19 motion must succeed.

20 The Rule also does not require that the Chamber be satisfied that

21 there is evidence supporting each of the individual charges making up the

22 counts of the indictment. Thus, where, as in the present case, the

23 accused are charged under multiple modes of liability, it is sufficient if

24 there is evidence capable of supporting a conviction on the basis of one

25 of those modes of liability. Although the accused in this case have

Page 12773

1 broadly challenged all the modes of liability alleged in the indictment,

2 the arguments of the parties in their submissions focused mainly on Joint

3 Criminal Enterprise and superior responsibility, and therefore this

4 decision concentrates largely on assessing the responsibilities of the

5 accused in relation to these.

6 The determination whether there is evidence on which a Trial

7 Chamber could convict should be made on the basis of the evidence as a

8 whole.

9 A ruling now that there is sufficient evidence to sustain a

10 conviction on a particular count does not mean that the Trial Chamber

11 will, at the end of the case, return a conviction upon a particular charge

12 falling within that count. Indeed, a great deal of the evidence already

13 heard is contentious and controversial. The Trial Chamber notes that the

14 Defence arguments often related to the interpretation or assessment of the

15 evidence rather than the absence of evidence capable of supporting a

16 conviction.

17 Reliance for the legal standard here enunciated is placed upon the

18 Jelisic appeal judgement, the Slobodan Milosevic Rule 98 bis decision, and

19 the recent 98 bis decisions in the Mrksic trial, the Martic trial, and the

20 Dragomir Milosevic trial.

21 With regard to the evidence that the crimes charged in the

22 indictment were committed as alleged, the Chamber notes that the accused

23 are charged with two types of crime provided for in the Statute of this

24 Tribunal: Crimes against humanity and violations of the laws or customs

25 of war. In addition to the specific elements making up the underlying

Page 12774

1 offences of these crimes which in this case are deportation, forcible

2 transfer, murder, and persecutions, there are general requirements that

3 must be satisfied in order to elevate those offences into the category of

4 crimes against humanity or violations of the laws or customs of war. At

5 the present stage of proceedings the Chamber is satisfied that there is

6 evidence that these general requirements are met. In particular, the

7 Chamber notes that it has heard the evidence of numerous witnesses about

8 attacks upon towns and villages in various parts of Kosovo in the period

9 relevant to the indictment and that this evidence is capable of proving

10 both the widespread and the systematic nature of these attacks.

11 THE INTERPRETER: Would His Honour kindly slow down, please.

12 JUDGE BONOMY: The Trial Chamber also notes that it has heard a

13 lot of evidence about the Kosovo Liberation Army's activities in the weeks

14 and months prior to and during the indictment period. The Kosovo

15 Liberation Army is commonly known as the KLA as the English abbreviation.

16 Indeed, witnesses testified about the organisation and operations of the

17 KLA and their attacks upon police and army units in Kosovo as well as

18 civilians considered supportive of the governmental authorities. However,

19 the potentially criminal nature of the activities of the KLA is not the

20 subject of the present case. Moreover, there is evidence that at least

21 some of the actions undertaken by the Yugoslav army, also known as the VJ,

22 and Serbian police forces, also known as the MUP, were directed towards

23 combatting the KLA. Nonetheless, for the present purposes, the Chamber

24 concludes that there is evidence that some, if not all, of the events

25 described in the indictment included attacks directed at the civilian

Page 12775

1 Kosovo Albanian population.

2 Of before proceeding with our analysis of the evidence, we find it

3 useful to point out that, as set out in paragraph 20 of the indictment,

4 when used by the Prosecution, the phrase "forces of the FRY and Serbia"

5 encompasses the following forces and units:

6 The VJ, including the third army, in particular the Pristina Corps

7 of the 3rd Army, and other units temporarily or permanently deployed to

8 Kosovo or otherwise participating in the conflict;

9 The MUP, including Special Police Units, (PJP), the Special

10 Anti-Terrorist Unit (SAJ), police reservists, MUP Secretariat (SUP)

11 personnel, the Special Operations Unit (JSO), and State Security, (RDB)

12 operatives;

13 The Pristina military district and military territorial units

14 within it;

15 Civil Defence units;

16 Civil Protection Units;

17 Civilian groups armed by the VJ and/or the MUP and formed into

18 village defence units acting under the control and authority of the VJ

19 and/or the MUP; and

20 Volunteers incorporated into units of the VJ and/or the MUP.

21 Finally, the Prosecution alleges that at least one VJ and at least

22 one MUP unit participated in each of the crimes enumerated in counts 1 to

23 5 of the indictment.

24 The Chamber has kept this description of the principal

25 perpetrators in mind throughout its deliberations upon the motions. Where

Page 12776

1 in this decision we refer to the forces of the FRY and Serbia, it should

2 be understood that the Chamber is referring to personnel falling within

3 any of the categories listed above.

4 Before turning to our findings with regard to the evidence

5 supporting the commission of the crimes in the indictment, and then

6 discussing the evidence with regard to the responsibility of each accused,

7 the Chamber further notes, as I remarked a moment ago, that the

8 submissions of the parties focused mainly on two of the modes of liability

9 alleged: Commission through participation in a Joint Criminal Enterprise

10 or JCE, under Article 7(1) of the Statute, and failure to prevent or

11 punish crimes by subordinates under Article 7(3). Much has been written

12 in the jurisprudence of this Tribunal about these modes of liability and

13 their elements, which is not necessary to lay out in full here. However,

14 during its oral submissions, the Prosecution laid some emphasis on the

15 notion of commission by omission in the context of a Joint Criminal

16 Enterprise, which merits some attention. The Appeals Chamber has affirmed

17 that an omission may lead to individual criminal responsibility under

18 Article 7(1) where there is a legal duty to act. The authority for that

19 is the Galic appeal judgement. In addition, in the Kvocka appeal

20 judgement, the Appeals Chamber stated that such omission may occur in the

21 context of a Joint Criminal Enterprise finding that such omission must

22 have contributed to the common criminal purpose of the JCE. Moreover, in

23 Brdjanin, the Appeals Chamber found that the contribution of the accused

24 to the common plan should at least be significant. Therefore, in the

25 present case where the evidence points to a legal duty and failure to act

Page 12777

1 on the part of one or some of the accused, this may be considered

2 sufficient evidence of participation in a Joint Criminal Enterprise for

3 liability under Article 7(1) if, by such omission, a significant

4 contribution to the JCE is made.

5 It should here be emphasised that where we set out the evidence

6 which we consider the Trial Chamber could accept, that is no indication

7 that we are ultimately going to accept that evidence or any part of it.

8 Similarly, our failure to mention any evidence in this decision does not

9 mean that we may not accept it and rely upon it in our final judgement.

10 Even where the Defence have cross-examined a witness to good effect, the

11 decision whether to accept or reject the evidence is for the final

12 judgement. The same applies where the Defence have by cross-examination

13 secured favourable evidence -- sorry, evidence favourable to an accused,

14 the time to evaluate that evidence against the potentially inculpatory

15 evidence is during final deliberations. These principles apply to all of

16 the conclusions set forth in this decision.

17 Finally, for the purposes of today's oral ruling, and in light of

18 the fact that the accused are Serbian, the Chamber will use only the

19 Serbian version of the names of the relevant towns and municipalities in

20 Kosovo.

21 We now address the evidence supporting the commission of the

22 underlying offences making up the crimes alleged in the indictment.

23 The indictment alleges that there existed a Joint Criminal

24 Enterprise, the aim of which was to forcibly expel and internally displace

25 hundreds of thousands of Kosovo Albanians from their homes across the

Page 12778

1 whole of Kosovo. To facilitate these expulsions and displacements, forces

2 of the Federal Republic of Yugoslavia, the FRY, and Serbia intentionally

3 created an atmosphere of fear and oppression through the use of force,

4 threats of force, and acts of violence.

5 The indictment organises these allegations into five counts, each

6 of which charges one type of underlying offence and which contain

7 allegations that these offences were committed in numerous locations in

8 Kosovo.

9 Count 1 charges deportation and in several subparagraphs of

10 paragraph 72 the Prosecution alleges that the deportation of Kosovo

11 Albanians was carried out in early 1999 from 13 municipalities. Count 2

12 is other inhumane acts, forcible transfer, and refers back to the facts

13 alleged in the first count. The paragraphs the indictment falling under

14 counts 3 and 4, murder, that is paragraphs 74 and 75, provide significant

15 details about a number of alleged killings in various locations in Kosovo

16 charged as both violations of the laws or customs of war and crimes

17 against humanity. Many of these locations and individual incidents

18 overlap with those described in paragraph 72 under the deportation count

19 so that several killings are here described for a second time. Finally,

20 under the fifth count, "Persecutions," paragraph 77 of the indictment

21 asserts that the accused are responsible for a campaign of persecution

22 against the Kosovo Albanian population. While this paragraph refers in

23 general to deportation and forcible transfer as among the ways in which

24 this persecution was conducted, along with murder, sexual assault, and

25 wanton destruction or damage of religious sites, the Chamber notes that

Page 12779

1 the specific allegations of forcible transfer and deportation contained in

2 paragraph 72 are not incorporated by reference into count 5. The Chamber

3 brought this fact to the attention of the Prosecution in court on 30th

4 October, but the Prosecution took no action to address it, and therefore

5 the persecutions alleged in count 5 do not include by means of the

6 deportation and forcible transfer of Kosovo Albanians described in

7 paragraph 72.

8 No specific challenges were raised by the Defence to counts 1 and

9 2. On a basis of the review of the evidence brought by the Prosecution,

10 the Chamber finds that there is sufficient evidence on which it could be

11 found that deportation and forcible transfer as crimes against humanity

12 were carried out by forces of the FRY and Serbia in all of the following

13 municipalities:

14 Orahovac, on the basis of evidence from Lufti Ramadani, Ali Hoti,

15 Isuf Zhuniqi, Mehmet Krasniqi, Reshit Salihi, Sabri Popaj, Agim Jemini,

16 and K25.

17 Prizren, on the basis of evidence from Rahim Latifi, Rexhep

18 Krasniqi, and Hyseni Kryeziu.

19 Srbica, on the basis of evidence from Liri Loshi, Milazim Thaqi,

20 Sadik Januzi, Mustafa Draga, Abdullah Salihu, and Hadije Fazilu.

21 Suva Reka, on the basis of evidence from Halit Berisha, Hysni

22 Berisha, Shyrete Berisha, and Hamide Fondaj.

23 Pec, on the basis of evidence from Edison Zatriqi, and Ndrec

24 Konaj.

25 Kosovska Mitrovica, on the basis of evidence from Sadije Sadiku,

Page 12780

1 Aferdita Hajrizi, and Mahmut Halimi.

2 Pristina, on the basis of evidence from Antonio Russo, Emin

3 Kabashi, Nazlie Bala, K63, K62, Baton Haxhiu, and K14.

4 Djakovica, on the basis of evidence from K90, Fuat Haxhibeqiri,

5 K73, Merita Dedaj, Lizane Malaj, and Nike Peraj.

6 Gnjilane, on the basis of evidence from Qamil Shabani, Abdylhaqim

7 Shaqiri, and K81.

8 Urosevac, on the basis of evidence from Bedri Hyseni, Florim

9 Krasniqi, and Bajram Bucaliu.

10 Kacanik, on the basis of evidence from Hazbi Loku, Sejdi Lami, Isa

11 Raka, Fadil Vishi, Muharrem Dashi, and K31.

12 Decani, on the basis of evidence from K58, K20, and Mehmet

13 Mazrekaj.

14 Vucitrn, on the basis of evidence from Sabit Kadriu, Fedrije

15 Xhafa, and Shukri Gerxhaliu.

16 I turn now to counts 3 and 4.

17 Only the Accused Lukic raised challenges to some of the murder

18 charges contained in counts 3 and 4. Having analysed these specific

19 challenges carefully and on a basis of a review of the evidence brought by

20 the Prosecution, the Chamber finds that there is sufficient evidence upon

21 which it could be found that murder as a crime against humanity and as a

22 violation of the laws or customs of war was committed by forces of the FRY

23 and Serbia in each of the municipalities averred in paragraph 75 of the

24 indictment as follows:

25 Orahovac on the basis of evidence from Lufti Ramadani, Isuf

Page 12781

1 Zhuniqi, Mehmet Krasniqi, Reshit Salihi, Sabri Popaj, and Agim Jemini.

2 Lukic argued that the perpetrators of the killings in Mala Krusa,

3 a village in the Orahovac municipality, were local neighbours rather than

4 members of the police under his command and control. The Chamber notes,

5 however, that Mehmet Krasniqi and Lufti Ramadani both testified about the

6 attack on Mala Krusa by VJ and MUP forces on 25th March 1999. They

7 testified that they were in a group of men that was forcibly taken by

8 members of the MUP to a barn where they were shot en masse and the barn

9 then set on fire. John Sweeney, a BBC journalist who carried out an

10 investigation into this alleged massacre shortly after it took place, also

11 testified that survivors whom he interviewed named individual Serbs who

12 were among the perpetrators and that he saw police or army uniforms in

13 houses belonging to the Serb residents of the village. On the basis of

14 the testimony of these witnesses, there is sufficient evidence that

15 approximately 100 men were killed in Mala Krusa as charged in the

16 indictment, and that these killings were perpetrated by armed and

17 uniformed Serbs.

18 Suva Reka, on the basis of evidence from Halit Berisha Hysni

19 Berisha, Shyrete Berisha, Dusan Dunjic, Antonio Alonso, Eric Baccard,

20 Shefqet Zogaj, and K83.

21 Once again, Lukic argued that the killing of members of the

22 Berisha family in Suva Reka town had not been planned and ordered by MUP

23 superior officers in Suva Reka. However, the Trial Chamber heard evidence

24 about these killings from one of the survivors, Shyrete Berisha, who

25 recognised local policemen amongst the perpetrators. K83, himself a

Page 12782

1 reserve policeman, also testified that he and his colleagues participated

2 in the killings. Thus, there is sufficient evidence upon which a trier of

3 fact could find that on 26th March 1999, MUP members participated in the

4 killing of over 40 members of the Berisha family in Suva Reka.

5 Srbica, on the basis of evidence from Liri Loshi, Milazim Thaqi,

6 Sadik Januzi, Mustafa Draga, Gordana Tomasevic, and Eric Baccard.

7 In this case, Lukic submitted that with respect to the killing of

8 over 100 people in Izbica, a village in Srbica municipality, the evidence

9 adduced does not identify the perpetrators adequately. Lukic did not

10 appear to challenge the fact that the killings occurred. The Chamber

11 finds that there is sufficient evidence from Milazim Thaci, Sadiku Januzi,

12 and Mustafa Draga, that a significant number of men were killed as alleged

13 in the indictment and that these killings were committed by armed,

14 uniformed personnel of Serb ethnicity.

15 Djakovica, on the basis evidence from Hani Hodja, Dren Caka,

16 Lulzim Veja -- sorry, that should be Lulzim Vejsa, K73, K74, Merita Dedaj,

17 Lizane Malaj, Martin Pnishi, and K90.

18 Regarding the incident alleged to have occurred at Milosh Gilic

19 street in Djakovica town, during which 20 people were killed, Lukic argued

20 once again that the perpetrators were local neighbours and that the

21 killings were not part of a planned action undertaken by or known to the

22 MUP authorities. However, on the basis of the testimony of Hani Hodja,

23 Lulezim Vejsa, and Dren Caka, the Chamber finds that there is sufficient

24 evidence that the killings were carried out by armed uniformed men of Serb

25 ethnicity, some of whom were wearing masks.

Page 12783

1 With respect to attacks upon Meja and Korenica in Djakovica

2 municipality, Lukic made arguments that appear to challenge his knowledge

3 of the commission of crimes, rather than the crimes themselves. The

4 Chamber is satisfied on the basis of the testimony of K73, Martin Pnishi,

5 Merita Dedaj, Nike Peraj, and K90, that there is sufficient evidence that

6 the killings in Meja and Korenica occurred as described in the indictment.

7 The question of Lukic's responsibility will be dealt with later in this

8 decision.

9 There were no specific challenges raised to the murders alleged in

10 Vucitrn and Kacanik municipalities. The Chamber finds that there is

11 sufficient evidence with regard to these municipalities, on the basis of

12 evidence from Sabit Kadriu, Fedrije Xhafa, and Shukri Gerxhaliu, for

13 Vucitrn, and Hazbi Loku, Sejdi Lami, Isa Raka, Fadil Vishi, Muharrem

14 Dashi, and K31 for Kacanik.

15 I'll deal now with count 5.

16 As we have already noted, the persecution charges falling under

17 count 5 of the indictment are composed of allegations of sexual assault,

18 murder, and the wanton destruction or damage of Kosovo Albanian religious

19 sites. Once again, only Lukic raised specific challenges to some of these

20 charges, which we will address briefly first.

21 Lukic argued that there was not a single witness, save for Andras

22 Riedlmayer, who testified that the mosque in Brestovac, in Orahovac

23 municipality, was damaged by the forces of the FRY and Serbia. Similarly,

24 Lukic questioned the sufficiency of evidence with regard to the village of

25 Vocnjak in Srbica municipality and the destruction of cultural monuments

Page 12784

1 there, and in all of the locations where such damage or destruction is

2 alleged in the indictment. Having reviewed the evidence with regard to

3 the alleged wanton destruction or damage ever Kosovo Albanian religious

4 sites, and in particular the mosques listed in paragraph 77(d) of the

5 indictment, the Chamber finds that, while there may not be evidence

6 capable of supporting a conviction with regard to some of these mosques,

7 there is evidence that others were damaged or destroyed by the forces of

8 the FRY and Serbia, as alleged in the indictment. For example, the

9 evidence of Sabit Kadriu with regard to the mosque in Vucitrn; Halit

10 Berisha with regard to the mosque in Suva Reka; Sabri Popaj with regard to

11 the mosque in Celina; K81 with regard to the missing in Vlastica; and Fuat

12 Haxhibeqiri with regard to the mosque in Djakovica. For this reason,

13 Lukic's challenge to this aspect of count 5 fails.

14 Lukic also challenged the evidence with regard to one incident of

15 sexual assault that is alleged to have occurred in Pristina, namely the

16 rape of K62. Again, he does not appear to argue that this rape did not

17 occur but, rather, focused his submission on the identification of the

18 alleged perpetrators and the evidence from the victim and K63 about this.

19 On the basis of the evidence of K62 and K63, the Chamber is satisfied that

20 there is sufficient evidence that K62 was raped by three uniformed men

21 wearing masks, hats, and boots. In addition, the Chamber has heard

22 evidence from other witnesses concerning additional incidents of sexual

23 assault in Pristina, namely K14 and K31, who testified that they were

24 raped by armed uniformed men of Serb ethnicity. For these reasons, the

25 Lukic challenge to this aspect of count 5 also fails.

Page 12785

1 We have already discussed the evidence regarding the murders

2 alleged in the indictment, which are also charged as forms of persecution

3 under count 5. In order to conclude that there is evidence that these

4 murders, as well as the sexual assaults and damage to or destruction of

5 Kosovo Albanian religious sites amount to persecutions, an additional

6 element that must be satisfied is that at least some of them were

7 committed with the intent to discriminate on political, racial, or

8 religious grounds.

9 A significant point in this regard is that the evidence adduced

10 with regard to all of the alleged murders, as well as the sexual assaults,

11 indicates that the times were almost exclusively Kosovo Albanian. In

12 addition, the Chamber has heard evidence of statements that were made by

13 members of the forces of the FRY and Serbia in the course of their

14 expulsion, mistreatment, and killing of Kosovo Albanians in various

15 locations from which discrimination against the Kosovo Albanians can be

16 inferred. For example, K90 testified about a group of Kosovo Albanians

17 being forced to sing Serb nationalist songs shortly before they were

18 killed and that he was told by a policeman that they were "slaughtering

19 Siptars" and "skinning the Siptars." Mustafa Draga testified that while

20 being detained by forces of the FRY and Serbia, a group of about 200 men

21 were ordered to shout "Long live Serbia!" Milazim Thaqi gave evidence of

22 similar abuse and being forced to give the Serb three-fingered sign.

23 Shyrete Berisha testified that one of the policemen involved in the attack

24 upon her family shouted that they were going to eliminate all the

25 Albanians.

Page 12786

1 For these reasons the Trial Chamber finds that there is evidence

2 upon which it could be found that persecutions as a crime against humanity

3 were committed in Kosovo as alleged in the indictment.

4 I now turn to the individual criminal responsibility and we'll

5 deal with the matter in general terms first of all, and then to address

6 the issue in relation to each of the accused individually.

7 Each of the accused are charged with having committed the crimes

8 alleged in the indictment through participation in a Joint Criminal

9 Enterprise. The Chamber first addresses evidence going to the evidence of

10 a JCE before then turning to the contribution of each accused in any such

11 enterprise.

12 According to the indictment, a JCE came into existence no later

13 than October 1998, and it involved a number of individuals in addition to

14 the six accused, namely Vlastimir Djordjevic, Vajko Stojiljkovic, Radomir

15 Markovic, Obrad Stevanovic, Dragan Ilic, and Slobodan Milosevic. The

16 indictment asserts both that the participants in the JCE included the

17 principal perpetrators of the crimes alleged being unidentified persons

18 who were members of command and coordinating bodies and members of the

19 forces of the FRY and Serbia and/or the participants in the JCE

20 implemented their objectives through members of the forces of FRY and --

21 of the FRY and Serbia whom they controlled.

22 During its oral Rule 98 bis submissions, however, the Prosecution

23 stated that in light of the Appeal Judgement in Brdjanin it intended now

24 only to proceed on the basis of the second articulation, namely that

25 members of the JCE used members of the forces of the FRY and Serbia that

Page 12787

1 they had control over to carry out the deportations, forcible transfers,

2 murders, and persecutions.

3 This is an important representation of the Prosecution that the

4 parties should keep in mind.

5 The Chamber considers that the Prosecution has charged the accused

6 with responsibility for the crimes alleged under the first and third

7 categories of JCE, as articulated in the jurisprudence of the Tribunal.

8 In particular, the Chamber recognises that the accused are alleged to be

9 responsible for the forcible displacement of the Kosovo Albanian

10 population, or the common plan, and that the murders committed in

11 conjunction with the main aim of the JCE were natural and foreseeable

12 consequences under the third category of JCE.

13 The Chamber has considered the arguments of the parties and the

14 evidence accused in this case thus far and finds that there is evidence

15 upon which it could be found that a JCE existed from October 1998

16 throughout the indictment period, consisting of senior military and

17 civilian members of the authorities of the FRY and Serbia.

18 The evidence of the scope, nature, and timing of the alleged

19 crimes indicates that they were not committed randomly but pursuant to a

20 plan to alter the ethnic balance in Kosovo. This conclusion is drawn from

21 many witnesses who testified to their own forcible displacement along with

22 others; the evidence of Fred Abrahams and the fact that the United Nations

23 High Commission for Refugees estimated the number of refugees in June 1999

24 as 850.000, which is corroborated by the report of Patrick Ball; evidence

25 regarding the seisure of identity documents from Kosovo Albanians crossing

Page 12788

1 the border from, inter alia, Hani Hoxha, Sadije Sadiku, Mahmut Halimi,

2 Rexhep Krasniqi, Hysni Kryeziu, K54, Josef Maisonneuve, Richard

3 Ciaglinski, and Knut Vollebaek.

4 The existence of a JCE is also supported by the evidence regarding

5 the arming of Serb civilians and the simultaneous disarming of the

6 Albanian population. Evidence of this was given by Zlatomir Pesic, who

7 testified that only Serbs, and not Kosovo Albanians, were called up for

8 the Territorial Defence, and a letter was admitted into evidence that was

9 from the Chief of the SPS Main Board in Kosovo to the Accused Milutinovic,

10 asking that the Serb population be armed.

11 A body known as the Joint Command is alleged by the Prosecution to

12 have had a significant role in the direction of the VJ and MUP operations

13 in Kosovo during the indictment period. Some of the accused challenged

14 the very existence of the Joint Command, while others took issue with the

15 Prosecution's characterisation of its powers, functions, and membership.

16 The evidence adduced in connection to the Joint Command, including

17 documents issued by that body and the minutes of its meetings, could form

18 a basis for the Chamber to conclude that, firstly, the Joint Command came

19 into existence by July 1998 and met frequently throughout the remainder of

20 that year; secondly, was established to integrate the activities of the

21 forces of the FRY and Serbia in the implementation of anti-terrorist

22 operations in Kosovo; thirdly, had a membership, including some of the

23 accused; and fourthly, existed as late as May 1999. This evidence could

24 also support the Prosecution's contention that the Joint Command was

25 created as one of the means by which the participants in the JCE could

Page 12789

1 carry out the common plan. A number of orders bearing to have been made

2 by the Joint Command for Kosovo and Metohija state that the Pristina

3 Corps, with the reinforced and armed non-Siptar population of Kosovo, is

4 to support MUP forces in breaking up and destroying the Siptar terrorist

5 forces.

6 There is evidence that many of the JCE were carefully positioned

7 as the crisis in Kosovo escalated. The evidence shows that from June

8 1998, Lukic was appointed to act as the Chief of Staff of the MUP in

9 Kosovo. On 24 November 1998, Slobodan Milosevic, through the Supreme

10 Defence Council, removed Momcilo Perisic as head of the VJ General Staff

11 and replaced him with the Accused Ojdanic, after Perisic had complained

12 about the way in which the VJ was being utilised in Kosovo in 1998. On 25

13 December 1998, Lazarevic was appointed commander of the Pristina Corps by

14 Presidential Decree. And finally, the Accused Pavkovic took over as

15 commander of the 3rd Army at the beginning of 1999.

16 There is also evidence suggesting that the participants in the JCE

17 employed the simultaneous strategy of obstructing negotiations over the

18 situation in Kosovo and conducting preparations for combat operations.

19 Wolfgang Petritsch testified that Chris Hill had a very unproductive

20 meeting with the Accused Milutinovic at the time of the Rambouillet

21 negotiations. An Austrian diplomatic dispatch cites Milutinovic as being

22 intransigent in attempting to protract the negotiations. Knut Vollebaek

23 testified that between Rambouillet and Paris, the Serb position became

24 more intransigent with no real willingness to negotiate. Klaus Naumann

25 gave evidence, firstly, that the scale and magnitude of the activities

Page 12790

1 that took place in Kosovo during the spring of 1999 would have required

2 months of preparation; and secondly, that Slobodan Milosevic told him in

3 October 1998 that a solution for the Kosovo problem would be found in the

4 spring. Furthermore, on 16 February 1999, that is, in the middle of the

5 negotiations in France, a directive planning operations against so-called

6 Siptar terrorist forces in the region of Malo Kosovo, Drenica, and

7 Malisevo was issued by the Accused Lazarevic. During the negotiations

8 there was a build-up of forces of the FRY and Serbia, new and better tanks

9 and equipment were being moved in, and the VJ presence rose from three

10 companies to 15. Adnan Merovci testified that LDK, that is Albanian

11 political activists, reported that as many as 30.000 VJ and MUP had

12 entered Kosovo between October 1998 and March 1999.

13 In light of the evidence discussed herein pertaining to the

14 significance and organised movement of the Kosovo Albanian population and

15 the behaviour of the accused in relation to these events, the Chamber

16 could find that a Joint Criminal Enterprise existed at the relevant time,

17 the aim of which was to forcibly displace the Kosovo Albanian population

18 from Kosovo. Moreover, in the event that some of the specific crimes

19 charged, such as rape and murder, were not within the common plan, it was

20 nevertheless foreseeable that such crimes might be perpetrated in the

21 course of the mass expulsion of the population.

22 I now turn to deal with the case against the Accused Milutinovic

23 in particular.

24 Articles 83 to 89 of the Serbian Constitution suggest that

25 Milutinovic's position as the President of Serbia was a powerful one, but

Page 12791

1 also one that made him responsible to all the citizens of the Republic of

2 Serbia. His oath of office required him to devote himself to preserving

3 the "peace and welfare of all the citizens of the Republic of Serbia," and

4 he had the power to request the government to state its position on

5 questions falling within its jurisdiction in as little as 48 hours. The

6 evidence indicates that he was aware of this power when, by his own

7 admission, in March of 1998 he called upon the Minister of Interior to

8 inquire about the Jashari incident.

9 In addition, Article 6 of the Law of Ranks of Members of the

10 Ministry of Interior suggests that, as the president of Serbia, he had the

11 power to appoint and promote generals. By his own admission, he used this

12 power to promote the Accused Lukic in May 1999.

13 There is no disagreement among the parties that he was a member of

14 the Supreme Defence Council. There is evidence that the Supreme Defence

15 Council was more than merely an advisory body and that he, as one of its

16 members, was well-informed about events in the country and had important

17 powers with respect to decision regarding national defence and the VJ.

18 These powers are reflected in constitutional and legislative provisions,

19 namely, Article 135 of the FRY Constitution; Articles 8, 40, and 41 of the

20 Law on Defence; and Article 4 of the Law on the VJ, as well as the rules

21 of procedure of the Supreme Defence Council. These provide, among other

22 things, that the federal president is to command the VJ in accordance with

23 the decision of the Supreme Defence Council and that the members of the

24 Supreme Defence Council could call for meetings and put issues on the

25 agenda. In other words, the members could raise an alarm and express

Page 12792

1 their concerns before the Supreme Defence Council whenever they wished.

2 With respect to this, the Chamber was presented with the minutes of

3 Supreme Defence Council meetings, which so the nature of Milutinovic's

4 participation in this body, and with the evidence of Aleksandar

5 Vasiljevic, who testified about the nature of the body itself.

6 There is also evidence that Milutinovic was an important figure

7 when it came to representing Serbia on the international plane. Not only

8 is there a constitutional provision to that effect, namely Article 83(4)

9 of the Serbian Constitution, but the Chamber also has the evidence of

10 witnesses such as Wolfgang Petritsch, Veton Surroi, Ibrahim Rugova, Shaun

11 Byrnes, Klaus Naumann, Jan Kickert, and Michael Phillips, all of whom

12 testified about Milutinovic's participation in negotiations with Kosovo

13 Albanian and meetings with representatives of the international community.

14 Evidence has also been adduced that, as a member of the Socialist

15 Party Main Board, he participated in the creation of the joint demand and,

16 as a result, had access to its members as well as local politicians who,

17 in turn, had direct access to him and could make informal requests to the

18 leadership. Moreover, there is significant evidence of his participation

19 in meetings of the military and security apparatus responsible for Kosovo,

20 as well as evidence of various reports he received senior personnel

21 involved in events on the ground in Kosovo. For example, he was at the

22 MUP staff meeting of 5th November, 1998, where he spoke about the Joint

23 Command. He also attended the meeting of the operational inter-department

24 staff for the suppression of terrorism in Kosovo, where Lukic presented a

25 detailed report on the situation in Kosovo. At the 8th session of the

Page 12793

1 Supreme Defence Council on 25 December 1998, he was presented with the

2 Accused Sainovic's report on coordination between the MUP and the VJ and

3 made a statement about what he referred to as inflated allegations against

4 VJ soldiers. Finally, Milutinovic himself admitted that during the NATO

5 bombing he had regular meetings with Milosevic and others, including the

6 Minister of Defence, to review the situation in Kosovo.

7 There is also further evidence that he was on notice about

8 allegations of crimes from other sources, such as the ICTY Prosecutor at

9 the time, Louise Arbour, who wrote him a letter to that effect on 26 March

10 1999, and also from international representatives, such as Wesley Clark

11 and Javier Solana, as testified by Klaus Naumann. Finally, there is

12 evidence that Milutinovic was aware that crimes would occur in Kosovo with

13 the start of the NATO campaign, as testified to by Wolfgang Petritsch.

14 All of this evidence is capable of supporting the conclusion that

15 the Accused Milutinovic, by his actions and omissions as the President of

16 Serbia and a member of the Supreme Defence Council, intentionally

17 contributed to the Joint Criminal Enterprise. The same evidence is also

18 capable of supporting his liability as a civilian superior under Article

19 7(3).

20 I turn now to the case against the Accused Sainovic.

21 The evidence shows that the Accused Sainovic participated in the

22 Joint Criminal Enterprise as Slobodan Milosevic's representative it for

23 Kosovo and as a head of the Joint Command. As such, he was in a position

24 to command, control, direct, or otherwise exercise effective and de facto

25 control over the forces of the FRY and Serbia operating in Kosovo.

Page 12794

1 It is a matter of agreement between the parties that he was the

2 deputy Prime Minister of the FRY at all times relevant to the indictment,

3 and the evidence of Klaus Naumann, Knut Vollebaek, Dusan Loncar, Wolfgang

4 Petritsch, and Adnan Merovci confirm that he was the deputy Prime Minister

5 responsible for Kosovo. The evidence of Karol Drewienkiewicz shows that

6 Sainovic was not only acting as Milosevic's messenger but also as a

7 decision-maker for Kosovo. He had responsibility for coordinating the

8 security forces in Kosovo, as is shown by the evidence of Jan Kickert;

9 and, he was the one with the real authority according to Ibrahim Rugova.

10 The Chamber received evidence on his involvement in the Joint

11 Command from witnesses such as Ljubinko Cvetic and Aleksander Vasiljevic

12 who testified that he was the head of the Joint Command. The evidence

13 shows that he participated in the meetings of the Joint Command not only

14 in 1998 between the 22nd of July and 30th of October but also during the

15 indictment period as indicated by Vasiljevic. He also participated in

16 other high-level meetings such as the meetings of senior MUP officials and

17 the VJ General Staff. An example of such a meeting was the one held with

18 senior police officers -- sorry, officials in Kosovo on 4 April 1999.

19 Numerous documents, as well as the testimony of Ljubinko Cvetic,

20 shows that the Joint Command was responsible for ordering and coordinating

21 the activities of the VJ and the MUP and that, by mid-April 1999, the MUP

22 may have been subordinated to the VJ for operational purposes. This

23 evidence -- sorry, this documentation includes a Joint Command order,

24 dated 23 March 1999, an order of the 549th Motorised Brigade, dated 23

25 March 1999, an order for the engagement of the Serbian MUP in the Pristina

Page 12795

1 Corps, dated 25 April 1999, and an order of the command of the 549th

2 Motorised Brigade, dated 19 May, 1999. On the basis of this evidence, it

3 could be concluded that Sainovic, as head of the joint command, had

4 authority not only over the VJ but also the MUP. The evidence shows that

5 he gave orders and instructions to the VJ and the MUP, and this is

6 supported by the testimonies of Ljubinko Cvetic, Aleksander Vasiljevic,

7 and Dusan Loncar.

8 There is also evidence that he was aware of the persecutory

9 conduct of the forces of the FRY and Serbia against Kosovo Albanians

10 during the indictment period. Klaus Naumann, for example, testified that

11 Sainovic, or, if not him, Milosevic in the presence of Sainovic, made a

12 statement regarding the birth rates of Kosovo Albanians and the need to

13 strike a better ethnic balance. There is also evidence that Sainovic was

14 on notice about criminal activities of forces of the FRY and Serbia

15 resulting in the forcible displacement of Kosovo Albanians. The evidence

16 of Loncar and Vasiljevic shows that there was a reporting system whereby

17 all senior members of the forces of the FRY and Serbia reported to

18 Sainovic on events in Kosovo during the indictment period, including the

19 Accused Pavkovic, Lazarevic, and Lukic. There is also evidence that he

20 knew what was happening on the ground, because he reported to the Supreme

21 Defence Council about the activities of the VJ and the MUP in Kosovo, as

22 can be seen from the minutes of those meetings, such as the 8th session of

23 the Supreme Defence Council held in Belgrade on 25th December 1998. He

24 was also informed about various incidents at the meetings of the Joint

25 Command, such as the meeting held on 17th May 1999. Sainovic was also

Page 12796

1 made aware of violations of international humanitarian law by the ICTY

2 Prosecutor, Louise Arbour, in a letter of 26 March 1999, and through his

3 interactions with international interlocutors such as Karol Drewienkiewicz

4 and Klaus Naumann.

5 With regard to his failure to investigate crimes, there is

6 evidence that he was able to submit reports to the Supreme Defence Council

7 and other competent authorities about allegations of crimes in Kosovo, and

8 was able to make recommendations as to their prevention and the punishment

9 of perpetrators. This is borne out in the minutes of the 8th session of

10 the Supreme Defence Council on 25 December 1998, and the evidence of

11 Cvetic. There is sufficient evidence such as that adduced through Lakic

12 Djorovic and a Pristina Corps report dated 15 May 1999 about the status of

13 military proceedings to show that serious crimes committed by the forces

14 of the FRY and Serbia were, in fact, shielded from genuine judicial

15 scrutiny.

16 For the foregoing reasons, the Chamber, taking its evidence at its

17 highest in favour of the Prosecution, could find that the Accused Sainovic

18 is responsible for the crimes alleged in the indictment, either through

19 his participation in the Joint Criminal Enterprise or as a superior

20 pursuant to Article 7(3) of the Statute of the Tribunal.

21 I turn now to deal with the case against the Accused Ojdanic.

22 It is a matter of agreement between the parties that on 24

23 November 1998, Ojdanic was appointed by Slobodan Milosevic as Chief of the

24 General Staff of the VJ to replace General Momcilo Perisic.

25 As such, he was the highest ranking military officer in the FRY at

Page 12797

1 the time of the indictment. Pursuant to the Law On Defence and the law on

2 the army of Yugoslavia, he exercised de jure and de facto command over the

3 VJ and units subordinated to it. Moreover, there is evidence that after

4 the declaration of a state of war, Ojdanic subordinated MUP units to the

5 VJ, issued orders instructing the 3rd Army to support the MUP with

6 artillery fire, and in general supported the involvement of the VJ in

7 combat operations in Kosovo. Despite Ojdanic's contention that the 1999

8 spring offensive was a legitimate attempt to combat terrorism, there is

9 evidence that its implementation entailed crimes on a massive scale in

10 furtherance of the JCE. The evidence shows that in March 1999, the VJ may

11 have been deployed not only along the borders in order to combat the

12 threat there NATO or terrorism, but also throughout Kosovo where the

13 crimes charged in the indictment are alleged to have occurred. His role

14 in these actions is evidenced by his position as the chief of the VJ

15 General Staff, his participation in the VJ Collegium meetings, and many

16 orders signed by him.

17 His participation in meetings of the VJ Collegium is further

18 evidence of his actions (and inaction) during the relevant periods. For

19 example, at the VJ Collegium meeting on 18 March 1999, he received a

20 report of problems in relation to the VJ in Kosovo, but showed no interest

21 in dealing with the issue and instead moved on to another topic. His

22 knowledge of events on the ground in Kosovo came from his position as

23 chief of the VJ General Staff and the reporting structures in place at the

24 time and available to him. Daily reports were sent up the chain of

25 command, as is indicated in the VJ Collegium minutes, and, for example, by

Page 12798

1 a directive in January 1999 for operations of the Pristina Corps

2 containing detailed guidance on reporting obligations.

3 Ojdanic's knowledge of the operation of the Joint Command is

4 demonstrated at the VJ Collegium meeting on 21 January 1999 during which

5 he makes reference to this body.

6 He was informed of criminal acts committed by the MUP via

7 Pavkovic's 25 May 1999 report to the Supreme Command Staff about crimes

8 being committed by the MUP in Kosovo. There is also evidence that he

9 possessed knowledge of the service of volunteers in the VJ, and the

10 difficulties experienced with them. For example, on 20 April 1999,

11 Colonel-General Matovic sent a report to the Supreme Command Staff in

12 relation to problems dealing with volunteers in the 3rd Army, including

13 the facts that, firstly, volunteers were often from pre-existing

14 paramilitary groups and had criminal records; and secondly, some of them

15 had to be detained for having committed murder and rape. In addition,

16 there is evidence of his knowledge of the arming of Serb civilians. At

17 the VJ Collegium meeting on 2nd February 1999, Ojdanic and Colonel-General

18 Samardzic discussed the assignments of those armed Serbs and the plan for

19 including them in the units. A related exchange took place at the 21st

20 January 1999 meeting of the VJ Collegium.

21 Finally, although he had the material ability to enforce military

22 discipline and implement prosecution and punishment through the military

23 justice system, reports were admitted into evidence showing that the few

24 criminal cases that were prosecuted did not cover serious crimes. Of the

25 91 criminal cases in a Pristina Corps report, dated 15 May 1999, about the

Page 12799

1 status of military proceedings, none of them covered serious violations of

2 international humanitarian law.

3 From the foregoing evidence, the Trial Chamber concludes that it

4 could convict Ojdanic of the crimes alleged in the indictment via his

5 command responsibility under Article 7(3), as well as pursuant to the

6 modes of liability contained within Article 7(1) of the Statute, but in

7 particular through -- by commission through participation in a Joint

8 Criminal Enterprise.

9 Although it's not going to take much longer than, say, perhaps

10 about half an hour to complete this, it is necessary to have a break for

11 interpretation, and it's probably best to have that break now. We will

12 therefore rise and resume at 4.00.

13 --- Recess taken at 3.33 p.m.

14 --- On resuming at 4.02 p.m.

15 JUDGE BONOMY: Thank you for your patience. I turn now to the

16 case against the Accused Pavkovic.

17 The evidence suggests that Pavkovic voluntarily participated in

18 the JCE as a member of the Joint Command through his position in 1998 as

19 commander of the Pristina Corps and subsequently in 1999, as commander of

20 the 3rd Army. The Chamber is satisfied that there is evidence to suggest

21 that he was in a position of superior authority over VJ forces committing

22 crimes in Kosovo, that he had knowledge that such crimes had been

23 committed or were likely to be committed, and that he failed to take the

24 necessary measures to prevent those crimes or punish the perpetrators

25 thereof.

Page 12800

1 His participation in the JCE is indicated by his attendance at

2 meetings of the Joint Command and by his reports at those meetings on the

3 activities of the VJ, the evidence of which is contained in the minutes of

4 numerous Joint Command meetings in 1998 and the testimony of Vasiljevic.

5 In addition in his interview with the Prosecution, Pavkovic himself

6 admitted to attending Joint Command meetings in 1998.

7 The Chamber has heard evidence that in his position as commander

8 of the 3rd Army he had de jure and de facto control over the 3rd Army,

9 which enabled him to use VJ resources to ensure the expulsion of the

10 Kosovo Albanian population. Two documents in evidence are requests from

11 Pavkovic for the subordination of further VJ units to the Pristina Corps

12 for operations in Kosovo in February and March 1999. Given the evidence

13 of the involvement of VJ units under his command in at least some of the

14 crimes charged in the indictment, the Chamber is satisfied that he

15 contributed significantly to the JCE through his command and control of

16 these forces. Indeed, in his interview with the Prosecution, he stated

17 that he was present in Kosovo 95 per cent of the time between March and

18 June 1999, further indicating his close control over the actions of the VJ

19 on the ground.

20 Further evidence of his intent to participate in the JCE came from

21 K73, who testified that Pavkovic made a statement to members of the VJ

22 that "as soon as the first NATO bomb falls on Kosovo, we have to 'clean

23 our backs from Albanians'." While differing interpretations of this

24 statement are possible, at the Rule 98 bis station it is for the Chamber

25 to take the Prosecution's case at its highest in relation to this

Page 12801

1 statement, which is capable of bearing the interpretation of indicating

2 his intention to deport the civilian population from Kosovo.

3 The evidence suggests that VJ forces were utilised to carry out

4 the criminal objectives of the JCE. It is therefore arguable that

5 Pavkovic, by virtue of his position as commander of the 3rd Army, must

6 have been a participant in the JCE. Even if he were not a participant, he

7 could have prevented or obstructed the use of the VJ in this manner.

8 With regard to his superior responsibility, as the commander of

9 the 3rd Army in 1999, he was the superior of all VJ forces in Kosovo and

10 may also have been commander of MUP forces involved in combat operations

11 pursuant to Article 17 of the Law on Defence. While there is conflicting

12 evidence about whether he was the effective commander of these MUP forces,

13 there is evidence to suggest that he was at least their de jure commander.

14 In any event, he had effective control at least over the VJ in Kosovo, and

15 there is evidence, for example from K89 and K73, that these forces were

16 involved in operations leading to the commission of crimes charged in the

17 indictment.

18 Furthermore, as we have already noted, he was -- he has stated

19 that he was in Kosovo 95 per cent of the time between March and June 1999,

20 and that he received regular reports from his subordinates as well as from

21 the Joint Command. On this basis, there is evidence that Pavkovic had

22 detailed knowledge of the actions of the VJ deployed in Kosovo, including

23 their participation in criminal acts against the Kosovo Albanian

24 population. In particular, it is clear from his own interview with the

25 Prosecution that he was made aware of significant population movement in

Page 12802

1 1998 and 1999. In addition, Vasiljevic testified to Pavkovic's knowledge

2 of a significant number of killings, at least in May 1999. Dr. Gordana

3 Tomasevic, pathologist, also gave evidence that in May 1999, she was

4 instructed by Pavkovic to perform sanitisation jobs, and that he directed

5 her to a specific location in Kosovo where corpses were located, once

6 again indicating his knowledge that killings had taken place. Moreover,

7 international reports, such as United Nations Security Council

8 Resolutions, and indeed the indictment issued against Milosevic,

9 Milutinovic, Sainovic, Ojdanic, and Stojiljkovic on 24 May 1999, should

10 have served to put him on notice that serious and large-scale crimes may

11 have been or were likely to be committed by forces under his command.

12 Despite his knowledge and his powers as commander of the 3rd Army,

13 there is evidence to support the contention that he did not take the

14 necessary measures either to prevent such crimes being committed or to

15 punish the perpetrators. Lakic Djorovic, for example, gave evidence that

16 efforts were being made within the VJ to obstruct proper investigation and

17 prosecution of criminal activity by members of the VJ.

18 All of this is capable of supporting the conclusion that Pavkovic,

19 by his actions and omissions as commander of the VJ 3rd Army at the

20 relevant time, contributed to the Joint Criminal Enterprise. The same

21 evidence is also capable of supporting his liability as a superior under

22 Article 7(3).

23 I turn now to the case against Lazarevic.

24 It is agreed among the parties that in 1998, the Accused Lazarevic

25 was the chief of staff of the Pristina Corps and that on 25 December,

Page 12803

1 1998, he was appointed commander of the Pristina Corps by Presidential

2 Decree and served in that capacity until the end of the indictment period.

3 The evidence demonstrates that the Joint Command existed, that it

4 coordinated the activities of the forces of the FRY and Serbia in Kosovo,

5 and that the Pristina Corps was responsive to the Joint Command's

6 decisions. Lazarevic recognised the authority of the Joint Command, as is

7 shown in an order on breaking up sabotage and terrorist forces in the Slup

8 and Voksa village sector dated 14 August 1998, which was signed and

9 stamped by Lazarevic and which states that the VJ is to engage in combat

10 operations commanded by the Joint Command. This order also mandates that

11 the Pristina Corps and its subordinates are to follow the orders of the

12 Joint Command. Lazarevic also signed Joint Command documents such as a 22

13 March 1999 amendment to a Joint Command decision, issued on 20 March 1999,

14 to support the MUP in breaking up and destroying and storage and terrorist

15 forces in the area of Malo Kosovo. He wrote combat reports, such as the

16 report from the Pristina Corps to the 3rd Army command, dated 25 April

17 1999, recognising the existence and authority of the Joint Command.

18 Additionally, he participated in at least four meetings of the Joint

19 Command. On 23 August, 1998, 17 September, and 19 September 1998, and 1st

20 June 1999. In respect of the last of these. Vasiljevic testified about

21 his attendance at the meeting, as well as the attendance of Sainovic and

22 Pavkovic. Moreover, Nike Peraj directly implicated Lazarevic as having

23 command of the joint VJ-MUP operation that resulted in the killings at

24 Meja and Korenica in Djakovica in April 1999.

25 There is also evidence that Lazarevic as the commander of the

Page 12804

1 Pristina Corps issued numerous orders to VJ troops in Kosovo under his

2 control and exercised effective control over MUP units in the area, which

3 were subordinated to the VJ, or at least were coordinating their

4 operations with the VJ. The Chamber considers that there is evidence that

5 Lazarevic knew or had reason to know of crimes being committed in Kosovo

6 at the time relevant to the indictment. Nike Peraj gave evidence

7 regarding Lazarevic's knowledge of crimes committed at Meja and Korenica

8 in April 1999; and various reports from international organisations,

9 United Nations Security Council Resolutions, and media publications on the

10 excessive use of force in joint VJ-MUP operations 1998 and early 1999

11 should have served to put Lazarevic on notice of crimes being committed by

12 those under his command. He was also present at the meeting where the

13 Accused Pavkovic instructed Dr. Tomasevic to perform sanitisation jobs

14 with regard to corpses located in Kosovo, which again indicates his

15 knowledge of killings. Although the Chamber was presented with evidence

16 showing that he punished perpetrators of crimes in Kosovo, it notes that

17 the criminal proceedings initiated did not cover serious violations of

18 international humanitarian law. In addition, there is evidence that he

19 did not take effective measures within his material ability to prevent his

20 subordinates from committing crimes. As an example, the Chamber recalls

21 that although rules were established for the admission of volunteers into

22 the VJ, other evidence such as that of Vasiljevic demonstrates that the

23 system established was flawed in its operation.

24 For these reasons, the Chamber finds that there is evidence upon

25 which it could find that the Accused Lazarevic participated in the JCE,

Page 12805

1 that his participation was voluntary in nature, and that he shared the

2 intent to commit the crimes alleged in the indictment which were the aim

3 of the enterprise. There is also sufficient evidence upon which it could

4 be found that he was a participant in the Joint Criminal Enterprise and is

5 also responsible as a commander under Article 7(3) of the Statute in that

6 he had de facto and/or de jure authority and exercised effective control

7 of the Pristina Corps and its subordinate units, and the MUP and its

8 subordinate units, that he knew or had reason to know of the commission of

9 crimes in Kosovo during the time relevant to the indictment, and that he

10 failed to take the necessary and reasonable measures to prevent or punish

11 the crimes of his subordinates.

12 I turn now to the case against the Accused Lukic.

13 Evidence has been adduced that from June 1998, Lukic was appointed

14 to act as the Chief of Staff of the MUP in Kosovo. It is apparent, from

15 two 1998 decisions on the composition of the MUP staff for Kosovo and

16 Metohija and the MUP staff in Pristina, that Lukic was the highest-ranking

17 police officer in Kosovo, exercising control over MUP units operating

18 there.

19 The Chamber notes the dispute between the Prosecution and the

20 Defence over whether in this capacity Lukic exercised command and control

21 over members of the State Security Department as well as the Public

22 Security Department and concludes that there is evidence in the form of

23 the decision to establish a ministerial staff for the suppression of

24 terrorism, dated 16 June, 1998, that the activities of these two branches

25 of the Ministry of Interior forces were at least coordinated in Kosovo

Page 12806

1 from June 1998 under the auspices of a MUP staff headed by Lukic. In

2 addition, in his interview with the Prosecution, Lukic stated that he

3 participated in the Joint Command, and that in that capacity attended its

4 competing in order to review security information or information about

5 particular incidents. He further stated in that interview that the task

6 of the MUP staff in Pristina was to coordinate the work of all police

7 units, including the Special Police Units. This was confirmed by the

8 evidence of Cvetic, who also testified that the SUPs in Kosovo reported to

9 the MUP staff in Pristina, as well as the Ministry of Interior in

10 Belgrade. Further evidence has been adduced from John Crosland, Michael

11 Phillips, Richard Ciaglinski, and in the form of the interview, that the

12 MUP and the VJ operated together. Planning of tasks, creating maps and

13 issuing orders was done by the Pristina Corps, while the implementation of

14 these tasks was undertaken jointly by the VJ and the MUP. Moreover,

15 evidence from Cvetic indicates that in March 1999, Lukic gave instructions

16 that volunteers were to be retained and incorporated into MUP operations

17 during the conflict in Kosovo. The Chamber further notes the evidence

18 that in 1998, Lukic was at the very least aware of the arming of the local

19 non-Albanian population, and supported the use of these armed civilians by

20 the local police.

21 The Trial Chamber recalls the argument advanced by the Defence

22 that Lukic had the least significant standing among all the participants

23 of the Joint Command, and that he was, as stated by Vasiljevic, "the last

24 hole on the flute, the 13th piglet." The Trial Chamber does not consider

25 that this piece of evidence necessarily runs counter to the Prosecution

Page 12807

1 contention that Lukic was involved in the Joint Command. Rather, it is it

2 evidence of his participation in the Joint Command.

3 The Chamber has heard evidence from Bozidar Protic that Lukic was

4 involved in transferring the bodies of Kosovo Albanians to mass grave

5 sites in Serbia, and that this operation was conducted in a clandestine

6 manner. Moreover, significant evidence has been led, such as from Karol

7 Drewienkiewicz and from Shaun Byrnes, to show that Lukic was aware of

8 crimes committed in 1998. During this period, he was notified by

9 international observers on an almost daily basis of the excessive use of

10 force by police units in Kosovo, who were expelling Kosovo Albanians from

11 their villages and destroying their property. The Chamber also heard

12 evidence that the MUP had a well-established reporting system, as

13 demonstrated by an order dated 21 October 1998, to the chiefs of all the

14 SUPs in Kosovo discussing the Kosovo Verification Mission; a notification

15 issued on 15 February 1999 and directed to the OUPs in Podujevo, Lipljan,

16 Glogovac, Kosovo Polje, and Obilic, and the minutes of a meeting of the

17 Pristina MUP staff held had on 17 February 1999.

18 Sufficient evidence has been presented to show that during the

19 period relevant to the indictment, a system existed within the MUP to

20 ensure discipline and respect for the law. This is demonstrated by the

21 Law on Internal Affairs, the Decree of on Disciplinary Responsibility in

22 the Ministry of Interior, and the FRY Criminal Code. In addition, the

23 Decree on Internal Affairs during the State of War, issued on 7 April 1999

24 by Milutinovic, indicates that the disciplinary system existed during the

25 conflict as well. Despite these provisions, the Trial Chamber heard

Page 12808

1 evidence from Cvetic that while he was the head of the SUP in Kosovska

2 Mitrovica, he heard of no cases where a policeman was prosecuted for

3 serious crimes against Kosovo Albanians.

4 All of this evidence is capable of supporting the conclusion that

5 Lukic, by his actions and omissions as the Chief of Staff of the MUP for

6 Kosovo and as a member of the Joint Command, intentionally contributed to

7 the Joint Criminal Enterprise. The same evidence is also capable of

8 supporting Lukic's liability as a commander under Article 7(3) for his

9 failure to prevent or punish crimes committed by his subordinates,

10 evidence of which we have already discussed. Even if Lukic was unaware of

11 some specific offences committed by MUP forces, as argued by the Defence,

12 for the purposes of a decision under Rule 98 bis, there is sufficient

13 evidence that he was aware or was put on notice of the fact that serious

14 crimes were being committed or were likely to be committed and that he

15 failed to take the necessary measures to prevent or punish those crimes.

16 For these reasons and pursuant to Rules 54 and 98 bis, the Trial

17 Chamber denies the motions.

18 That completes this phase of the proceedings. The Chamber will

19 now adjourn the trial until the 22nd of June. That is the day of the

20 pre-trial -- sorry, of the Pre-Defence Conference.

21 --- Whereupon the hearing adjourned at 4.26 p.m.,

22 to be reconvened on Friday, the 22nd day

23 of June, 2007, at 9.00 a.m.