Tribunal Criminal Tribunal for the Former Yugoslavia

Page 26992

 1                           Thursday, 21 August 2008

 2                           [Milutinovic Defence Closing Statement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           [The Accused Lazarevic not present]

 6                           --- Upon commencing at 9.02 a.m.

 7             JUDGE BONOMY:  Good morning, everyone.  When we closed yesterday,

 8     we were hearing submissions from Mr. O'Sullivan, and these will now

 9     continue.

10             Mr. O'Sullivan.

11             MR. O'SULLIVAN:  Thank you, Your Honour, and good morning.  I

12     realize I have 45 minutes left for my submissions, but Mr. Fila has been

13     gracious enough to give me some latitude there, and I'll do my best to

14     finish in the time allotted.

15             JUDGE BONOMY:  We've so far found the oral submissions of parties

16     very helpful, and we do not think you should have too close an eye on the

17     clock if you have some helpful information or submission to make to us.

18     And we appreciate there will be the possibility of rebuttal or rejoinder

19     submissions also.  And if there are significant points that you feel can

20     be made in that context following what you've heard in court, then it

21     would be helpful to us to hear what you have to say.

22             MR. O'SULLIVAN:  Thank you for that.

23             As I said at the outset, my intention is to respond to the

24     submissions of the Prosecutor, both written and oral, and that's the way

25     I intend to continue this morning.  At the end of the session yesterday,

Page 26993

 1     Judge Chowhan raised two matters and asked me to consider them and

 2     respond to them.  With your leave, I will deal with one of those points

 3     later, and that is the allegation made at paragraph 613 of the

 4     Prosecutor's brief that Mr. Milutinovic failed to restrain the VJ by not

 5     proposing a session of the Supreme Defence Council and by not proposing

 6     an agenda for the Supreme Defence Council.

 7             I would straight away like to deal with the other issue raised by

 8     the learned Judge, and you asked me, Your Honour, about consultations in

 9     relation to appointments in the VJ and the powers of the Supreme Defence

10     Council.  My response is this:  The Supreme Defence Council does not have

11     the power to appoint; that's Article 136 of the FRY constitution.  It is

12     clear that's an exclusive power conferred upon the president of the FRY.

13             Now, the question you asked me yesterday seemed to imply that the

14     Supreme Defence Council did have such a power; we say it does not under

15     the constitution or the Law on the VJ.  If it may of assistance, we can

16     refer you to our final written brief paragraph 67 and 70 through 77.  The

17     position is this:  The president of the FRY is not required to put

18     personnel matters on the agenda of the Supreme Defence Council.  He is

19     not required to consult members of the Supreme Defence Council on

20     personnel matters.  It's within his discretion to do so.  And when he

21     did, when the president of the FRY did put those matters on the agenda,

22     we saw yesterday that information is provided to the members who

23     expressed views and opinions on changes; and in that sense, the members

24     of the Supreme Defence Council are consulted.

25             Now, there are many examples in the record where the president of

Page 26994

 1     the FRY did make appointments in the VJ in the relevant period, where

 2     there was absolutely no consultation with the Supreme Defence Council

 3     because it's his power and his right to do so.  And I can give you the

 4     examples of General Obradovic who was appointed by President Milosevic as

 5     second commander of the -- as commander of the 2nd Army in Montenegro at

 6     the end of March 1999.  There's the example of Geza Farkas who was

 7     appointed by President Milosevic as the chief of the security

 8     administration on the 24th of March, 1999.  Prosecution witness General

 9     Vasiljevic, again appointed by President Milosevic as the assistant to

10     Farkas on the 27th of April.  It -- also, I would invite the Chamber to

11     peruse Exhibit P1018.  It's a collection of presidential decrees,

12     President Milosevic's decrees, on promotions and decorations in the VJ

13     for the years 1999 and 2000.  It's voluminous, it's 350 pages.  But we

14     know that during this period, of course, the VSO, Supreme Defence

15     Council, was not meeting.

16             So, in answer to your question, Your Honour, that's our position.

17             JUDGE CHOWHAN:  Thank you very much.

18             MR. O'SULLIVAN:  I'd now like to move to another aspect of the

19     Supreme Defence Council, and it's the allegation made by the Prosecution

20     in relation to the Supreme Defence Council and the Supreme Command.  Your

21     Honour, Mr. Milutinovic was not a member of a body called the Supreme

22     Command.  The VSO did not become the Supreme Command or become a part of

23     the body called the Supreme Command.

24             The Trial Chamber's had the benefit of all -- of seeing all

25     relevant documentation in relation to the Supreme Command and the Supreme

Page 26995

 1     Defence Council.  You've seen the laws, the constitution, the minutes of

 2     meetings.  You've heard the evidence of VJ officers who were members of

 3     the body called the Supreme Command, who were present in the underground

 4     bunker in Belgrade for 78 days, who were present at daily briefings at

 5     the collegium.

 6             In our brief at paragraphs 62 to 116, we present the position,

 7     and the evidence is this:  The body called the Supreme Command was

 8     composed of the president of the FRY, supreme commander.  And he had a

 9     command staff which was the staff of the Supreme Command; in peacetime,

10     this was the General Staff.  The president of the FRY was the only

11     civilian in the Supreme Command; and under the principle of military

12     doctrine, of singleness of command, each commander has his staff which

13     implements his orders.

14             What of the evidence?  Well, let's begin again with P604, the

15     interview of Mr. Milutinovic with the Prosecutor in 2001.

16     Mr. Milutinovic told the Prosecutor that with the declaration of a state

17     of war by the federal government, everything moved up to the federal

18     level.  He told them that the president of the FRY commanded the army

19     through the staff of the Supreme Command, the president of the FRY issued

20     his orders through the Chief of Staff of the Supreme Command.  He told

21     the Prosecutor that the presidents of Montenegro and the president of

22     Serbia had no authority and no role to play in the defence of the country

23     during a state of war.

24             What did the direct participants who testified in this court tell

25     you?  There's Prosecution witness General Vasiljevic; Defence witnesses

Page 26996

 1     Gajic, Simic, Smiljanic, Curcin, Krga; Court witness Dimitrijevic.  All

 2     of them said the same thing.  All of them confirmed exactly our position,

 3     the position that Mr. Milutinovic explained to the Prosecutor in 2001.

 4     Indeed, it was the Trial Chamber that explored this issue with the

 5     witness Gajic.  You asked him what was the composition of the Supreme

 6     Defence Council?  And you asked him twice -- excuse me, the composition

 7     of the Supreme Command.  And the Chamber asked him twice on the first day

 8     of his testimony and on the fifth day of his testimony.  You wanted to

 9     know if he was consistent and you wanted to know if he was credible, and

10     he was both.  He described the Supreme Command to you.  He told you that

11     Mr. Milutinovic was not a member of the Supreme Command, he was not

12     present, he was not involved.  He told you that the supreme commander was

13     the only civilian in the Supreme Command.  He told you that the Supreme

14     Defence Council had no role and did not meet.

15             Now, in the face of this overwhelming evidence, the Prosecution

16     refers to two witnesses, one of them is Colonel Mucibabic who was a

17     member of the operations administration.  He was not a member of the

18     collegium, and he did not attend the collegium.  He and Colonel Paskas

19     were responsible for setting up the room for evening briefings, and they

20     took notes.  He offered a personal opinion of what he thought the

21     situation was.  With all due respect to Colonel Mucibabic, he wasn't in a

22     position to know, and you should disregard what he said in light of all

23     the evidence from the senior officers who were there.

24             The same is true for the second witness the Prosecution cites in

25     their brief, and that's General Obradovic.  We deal with him and his

Page 26997

 1     evidence at paragraph 101 of our final brief.  The Prosecution asked

 2     General Simic during his testimony about the testimony of General

 3     Obradovic.  General Simic said that at the end of March 1999, Obradovic

 4     went to Montenegro, where he was the commander of the 2nd Army.  General

 5     Obradovic was not a member of the staff of the Supreme Command.  He was

 6     not there, and it was Simic who told you that the members -- who the

 7     membership of the Supreme Command Staff was.  He said directly that the

 8     Supreme Defence Council did not become the Supreme Command, and this was

 9     based on the doctrine of singleness of command.  He also said the Supreme

10     Defence Council did not meet.

11             Now, what is the evidence of the fact the Supreme Defence Council

12     did not meet?  Again, P604, the interview with Mr. Milutinovic; the

13     evidence of these senior VJ officers; the evidence of Mr. Kojic, who was

14     a staff member at Mr. Milutinovic's office, all of which corroborates the

15     submission of Serbia and Montenegro under Rule 54 bis that said there

16     were no meetings of the Supreme Defence Council between the 23rd of

17     March, 1999, and the 5th of October, 2000.

18             JUDGE BONOMY:  What was its status during that period,

19     Mr. O'Sullivan?

20             MR. O'SULLIVAN:  The Supreme Defence Council existed; it's in

21     their constitution under 135.

22             JUDGE BONOMY:  So the state of war doesn't affect the fact that

23     there is a body known as the Supreme Defence Council which can function

24     if the members thereof wish it to function?

25             MR. O'SULLIVAN:  That's correct.

Page 26998

 1             JUDGE BONOMY:  Thank you.

 2             MR. O'SULLIVAN:  But we say that the Supreme Defence Council had

 3     no reason to meet during the state of war.

 4             There were competent federal and republic --

 5             JUDGE BONOMY:  Just before you leave that point, if a member of

 6     the Supreme Defence Council was unhappy on the question whether the

 7     supreme commander was commanding the army in accordance with the

 8     decisions of the Supreme Defence Council, there would be no reason in

 9     theory why that member could not seek to have a meeting in view of the

10     new rules that were introduced?

11                           [Defence counsel confer]

12             MR. O'SULLIVAN:  That's correct.  That's correct, Your Honour,

13     yes.

14             JUDGE BONOMY:  Thank you.

15             MR. O'SULLIVAN:  Now, we say that the Supreme Defence Council did

16     not meet, and it had no reason to meet.  With the declaration of war, the

17     competent federal and republic bodies and institutions were functioning

18     and dealing with the question of war and peace and the defence of the

19     country when it was attacked.  The Supreme Defence Council,

20     Mr. Milutinovic in particular, had no role, authority, or competence on

21     decisions or determinations in relation to the VJ, the MUP, or other

22     formations engaged in the war effort.  The Supreme Defence Council and

23     Mr. Milutinovic would have no role in deliberations or considerations

24     concerning the imminent threat of war, the state of war, or the cessation

25     of war.

Page 26999

 1             We know that the VJ is a federal army, and under the constitution

 2     is obliged to defend the sovereignty of the country, the independence of

 3     the country, and constitutional order.  It's commanded solely and

 4     exclusively by the federal president.  The organs of the federal

 5     government, in particular the Ministry of Defence, formulate policy and

 6     implement matters of defence and security.  We know that the MUP is under

 7     the authority of the minister of the interior, who's responsible to the

 8     government and ultimately the National Assembly.  And we ask you to

 9     consider Exhibit 3D670, which is the subordination order of the 18th of

10     April, 1999.  We've reproduced that in full in our brief, and I'll review

11     it very briefly here.

12             We say that the subordination order goes to the heart of the

13     matter.  It's the only written order issued by the supreme commander

14     during the war, issued by President Milosevic; and it goes to the heart

15     of the matter as I say.  We draw your attention to the preamble of the

16     order.  The preamble states that the order's issued on the basis of the

17     Law on the Army of Yugoslavia and the Law on Defence and the conclusions

18     of the Supreme Defence Council of October 1998.

19             What does this tell us?  As we say, it shows that the president

20     of the FRY is the supreme commander and the only competent federal organ

21     in command, that he's empowered under the constitution and the law to

22     make decisions and issue operative orders.  Our position is that the

23     Supreme Defence Council is not a command body, it does not plan, and it

24     does not order.  And how do we know that?  Well, let's look at the

25     reference to the conclusions of the Supreme Defence Council in

Page 27000

 1     October 1998, which are referred to in this order of April 19th -- April

 2     18th, 1999.  Those minutes are P1575, it's the 6th Session of the Supreme

 3     Defence Council on the 4th of October.  And there we see that at the

 4     conclusion of this rather lengthy discussion, at this point, of course,

 5     we have the Security Council resolution of the 23rd of September.  The

 6     members are discussing how to fulfil their obligations, the call that the

 7     UN Security Council has made to Yugoslavia to find a peaceful resolution

 8     to the problem in Kosovo.

 9             And we see this in the record, and I'll quote:  "While bringing

10     the discussion to an end, the president of the FRY and the Supreme

11     Defence Council, Slobodan Milosevic, suggested that the conclusion of

12     this session that would be published in the information be expressed in

13     one -- in only one sentence.  Yugoslavia is firm in their choice of peace

14     and ready to resolve all outstanding issues in a peaceful manner; but if

15     we should be attacked, we will defend our country by all means."  He put

16     this standpoint as he called it on the table, and it was accepted by both

17     President Milutinovic and President Djukanovic as the standpoint on the

18     issue.

19             We also should look and the Chamber also should look, we say, at

20     P1577, which is the 9th Session of the Supreme Defence Council on the

21     23rd of March, 1999, on the eve of the war, where President Milosevic

22     reminds the Supreme Defence Council of their standpoint at the session I

23     just mentioned in October and in relation to their position of finding a

24     peaceful resolution and defending if the country's attacked.  And this

25     shows, we say, the legal requirements and the involvement of the Supreme

Page 27001

 1     Defence Council in relation to state policy concerning the security

 2     situation in Kosovo, the threats to its sovereignty, and the need to

 3     defend the country if attacked.  Now, these political standpoints are

 4     adopted unanimously in the form of conditional conclusions, after

 5     discussion and consultation among the members of the Supreme Defence

 6     Council.

 7             The Chamber will also recall that in 1998 at a session of the

 8     Supreme Defence Council in June, a similar conclusion was adopted by all

 9     members in the conditional, which was:  Should terrorist activities of

10     the Albanian separatist movement escalate, the Army of Yugoslavia will

11     intervene in adequate measure.  And we know that this conclusion was

12     followed by an operative order of the president of the FRY on the 21st of

13     July, 1998, to fight terrorism in Kosovo which, indeed, had escalated.

14     We also know that the plan for fighting terrorism was prepared,

15     submitted, and approved by the president of the FRY.

16             In the Prosecution's -- I move on now to another matter.  In the

17     Prosecution's submissions at pages 26863-26864, he referred to

18     Exhibit 3D728; that's an evening briefing of the 11th of April, 1999.  We

19     deal with this matter in our brief at paragraphs 110 to 113.  One matter

20     raised by the Prosecutor is the meaning of the abbreviations.  We say

21     that "VK" means supreme commander and "VK-DA" means Supreme Command.

22     Now, the evidence on this is clear.  We have the evidence of Defence

23     witness Vlajkovic.  When he was cross-examined by the Prosecutor at page

24     16098, he was asked this question:

25             "Q.  Before I get to my last question, your last answer was that

Page 27002

 1     'VK' stands for supreme commander; and if you're talking about Supreme

 2     Command, then it would be 'VK-DA'?

 3             "A.  Yes."

 4             There was also the evidence of Branko Fezer at page 16487-16488.

 5     Now, the Prosecutor also referred to the testimony of Witness Gajic in

 6     relation to this evening briefing.  Of course, Gajic's testimony is that

 7     no politician other than Slobodan Milosevic was a member of the Supreme

 8     Command.  And Witness Vlajkovic testified that Mr. Milutinovic never

 9     attended meetings of the Supreme Command Staff.  This evening briefing

10     also lists three other people who testified in this case; that's Exhibit

11     3D728.  Witness Curcin, who testified that General Pavkovic briefed the

12     supreme -- the staff of the Supreme Command in the presence of the

13     supreme commander.  And, indeed, in the Prosecution's brief at

14     paragraph 737, they state the same thing, that the briefing was held in

15     the presence of the supreme commander.

16             The other two witnesses who were mentioned in this part of the

17     exhibit are Smiljanic and Krga.  They were not asked about 3D728, but we

18     know what their testimony is in relation to the Supreme Command.

19     Smiljanic said the only civilian in the Supreme Command was the supreme

20     commander, Mr. Milosevic.  Krga said there was no collective body

21     commanding the VJ.  The VJ was commanded by Slobodan Milosevic.

22             In a related matter, the Prosecution referred to Exhibit P1010, a

23     Politika article, a Belgrade daily newspaper; and we say that we can by

24     and large disregard what's in a Belgrade daily on this matter.

25             JUDGE BONOMY:  Mr. O'Sullivan, it does remain an odd expression.

Page 27003

 1     It's understandable in the context that you referred to earlier of

 2     General Pavkovic briefing the staff of the Supreme Command, I understand

 3     that, and Supreme Command is an appropriate way there of describing the

 4     commander.  But the more recent reference you've just made, "The only

 5     civilian in the Supreme Command was the supreme commander,

 6     Mr. Milosevic," that doesn't make much sense to me just as a concept what

 7     this Supreme Command is.  I understand a commander, I understand the

 8     Supreme Command Staff, but I don't understand this:  The idea of a body

 9     that is the Supreme Command with members that include a civilian.

10             MR. O'SULLIVAN:  Well, the point is this and the evidence is

11     this, and it was explained by the officers who testified, that every

12     commander has his staff.

13             JUDGE BONOMY:  I understand that.  That's the first way that

14     you've described it; the second way is the way that I don't understand.

15             MR. O'SULLIVAN:  Well, it's the way that people have expressed

16     it, perhaps.  But it's this singleness of command in the army and it's

17     right down the line that it's that way, that the commander has his staff

18     and implements his orders.  One person's responsible and one person makes

19     decisions, and we say that's reflected in the subordination order.

20             JUDGE BONOMY:  But that would be reflected in peacetime as well.

21     We have this concept of the president commanding the army in peace and

22     war, and he would be the one to issue the orders in peace or in war.  So

23     you would have the same concept there.  Even when the Supreme Command, as

24     it were, didn't exist, you would still have the supreme commander, the

25     president of the FRY, acting in accordance with the decisions of the

Page 27004

 1     opinions of the Supreme Defence Council.

 2             MR. O'SULLIVAN:  Well, we quite agree.  In fact, President

 3     Milosevic is the only person who was able to issue operative orders, but

 4     we know that the --

 5             JUDGE BONOMY:  But in the peacetime context, you have the Supreme

 6     Defence Council, so you can understand the various concepts because there

 7     is this body that has membership who are not military men.  But when we

 8     get to the Supreme Command, we have references to membership, but there

 9     only is one member effectively in what you're saying and that's where it

10     begins defy common sense.

11             MR. O'SULLIVAN:  Well, the membership includes the commander and

12     his staff, and he's the only -- and the difference is that within that

13     command, as opposed to every other command in the army, he is the only

14     civilian who is commander.  And during the war, and we talk about this,

15     that is when the term "Supreme Command" is used, and there's historical

16     reasons for that.  We point that out in our brief, and that is the

17     mindset, that is the reason that this was used.  I mean, we agree that

18     the Law on the VJ didn't change.  The fact that the General Staff is now

19     called the staff of the Supreme Command is explained by virtue of the

20     fact of the way that they saw themselves, with President Milosevic

21     commanding through his staff for historical reasons.  That was their

22     understanding.

23                           [Trial Chamber confers]

24             JUDGE BONOMY:  Just one final point on this, Mr. O'Sullivan, if

25     you can help me personally.  Do you remember a witness who rather

Page 27005

 1     suggested that the Supreme Command Staff did not necessarily simply turn

 2     the command -- the supreme commander's orders into action, and that there

 3     was a much greater measure of discretion than we might have thought?  A

 4     strange answer at the time that seemed to suggest that the staff could

 5     act independently of the commander.  Now, it may be my mind's playing

 6     tricks on me.

 7             MR. O'SULLIVAN:  Well, I believe that the evidence is this:

 8     That -- and I can remember and I know it's General Curcin for sure, and

 9     some others, who said that every morning General Ojdanic would meet with

10     President Milosevic and he would then transform President Milosevic's

11     orders into -- in the professional sense and pass them down the line.  So

12     it was, again, within the framework of the commander implementing his

13     orders through his staff is entirely the position and the evidence.

14             JUDGE BONOMY:  Thank you.

15             MR. O'SULLIVAN:  I now wish to turn to an allegation in the

16     indictment that --

17             JUDGE BONOMY:  Excuse me one moment, Mr. O'Sullivan.

18                           [Trial Chamber and legal officer confer]

19             JUDGE BONOMY:  Sorry.  Please continue, Mr. O'Sullivan.

20             MR. O'SULLIVAN:  Thank you.

21             I now wish to turn to an allegation in the indictment made by the

22     Prosecution in its submissions, where the indictment alleges that

23     Mr. Milutinovic promoted General Lukic by decree.  We say that the

24     correct -- correct position is that the instrument which gave effect to

25     the promotion of General Lukic in May 1999 was an ordinance, not a

Page 27006

 1     decree, signed by Mr. Milutinovic.  Now, this requires some explanations

 2     for a number of reasons, some for linguistic and some are conceptual.

 3     Now, the background to this is that in the B/C/S there are two words.

 4     The first word is "uredba," u-r-e-d-b-a; and the second word is "ukaz,"

 5     u-k-a-z.  Now, the problem that arose is that CLSS took the position when

 6     translating Professor Markovic's expert report, that they translated both

 7     of those words from the B/C/S into "decree," which we say is incorrect

 8     linguistically and, in particular, in substance, legally.

 9             Now, we raised the matter with CLSS; they stood by their guns.

10     We submitted to you court exhibit IC132 which we used during the

11     testimony of Professor Markovic, which clearly made the distinction

12     between "uredba," which is a decree, and "ukaz," which is an ordinance.

13     And I repeat that the position is that the promotion of General Lukic in

14     May was given effect by ordinance, a declarative act signed by President

15     Milutinovic.

16             JUDGE BONOMY:  Well, I was going to ask you:  Are you now going

17     to tell us the difference between a decree and an ordinance?

18             MR. O'SULLIVAN:  I shall.

19             JUDGE BONOMY:  Yes.

20             MR. O'SULLIVAN:  Let me first finish the story on the

21     mistranslation, the linguistic problem.

22             In Exhibit 1D680, in the first paragraph, there's a sentence that

23     uses the word "ukaz," and it's been translated by "issue a decree by

24     promoting Sreten Lukic."  We say it should say "issue an ordinance

25     promoting Sreten Lukic."

Page 27007

 1             Similarly, the cover page of 1D680 in English says "draft

 2     decree."  It should say "draft ordinance."  The second exhibit where

 3     there's a problem is 1D722, where again you see the word "decree," where

 4     it should be "ordinance" because the B/C/S original is "ukaz."

 5             And the last point I want to make before I get to the substance

 6     is, again, P604, Mr. Milutinovic's interview with the Prosecutor which

 7     was conducted in English and where Mr. Milutinovic used the word

 8     "decree."  So, in his mind, it wasn't clear either.

 9             Now, then, the difference between the concept of decree and

10     ordinance.  It's fully discussed and set out in our brief in relation to

11     this matter at paragraphs 55 to 61; it's fully described in the testimony

12     of Professor Markovic.  An ordinance is a declarative act; it's similar

13     to the power that the president of the Republic of Serbia has in

14     declaring or promulgating a law.  It's a declarative act.  It states --

15     it recognises that a certain fact exists.  In some jurisdictions, you may

16     call that royal assent, where you have constitutional monarchies.

17             A decree, on the other hand, is a different document; it's an

18     executive document.  And, indeed, as we shall see a little later, the

19     only time that the president of the Republic of Serbia can sign a decree

20     is during the exceptional irregular [Realtime transcript read in error

21     "regular"] state of war; the rest of the time he's only empowered to sign

22     ordinances.

23             It should be "irregular" circumstances.  I may have misspoken.

24     The state of war is an irregular circumstance, and I'll come back to that

25     in a different context later.

Page 27008

 1             Now, the promotion of General Lukic was an ordinary promotion

 2     based on the Law on Ranks, Article 6(1), the promotion is regulated by

 3     law.  In other words, under Articles 7 and 8 there is objective criteria

 4     that if they are fulfilled, then the individual is entitled to a

 5     promotion.  That's an ordinary promotion.  And the ordinance signed by

 6     the president really confirms this existing fact:  The individual has

 7     fulfilled the legal requirements, he's entitled to the promotion.  It's a

 8     formality.  It's a declarative act.  The promotion is made in conformity

 9     with the law, and the law provided at that time that the ordinance was a

10     required final step in this process.

11             JUDGE CHOWHAN:  I'm sorry.  I just want to learn a bit about the

12     two words, because I thought I understood it earlier but now it's getting

13     a bit rickety.  Now, ordinance certainly is a legislative term, and the

14     constitutions provide a life for it and it has to be laid before

15     somebody.  It is not something like something permanent.  Decree, of

16     course, is an executive order and may not have a life, but appointments

17     usually, as I can think of, should be through a decree.  Why through an

18     ordinance?  I mean, this is very strange here.

19                           [Defence counsel confer]

20             MR. O'SULLIVAN:  Well, I've just consulted my colleague,

21     Mr. Zecevic, and part of the explanation is the words in the Serbian

22     language.  The decree, or "uredba," is the executive act linguistically

23     in that language; whereas, "ukaz" is the ordinance, it's declarative.  In

24     fact, part of the problem may be the fact that the English language may

25     not capture what the Serbian language or B/C/S language does.

Page 27009

 1             JUDGE CHOWHAN:  That is all right.  You are the master of that

 2     language and I am learning from you, but you have been telling us through

 3     your learned discourse that the appointment was through an ordinance.

 4     Now, that means you are using it in the parlance of the ordinance as

 5     understood in the English language, so that has been created a bit of

 6     confusion.  Why would an appointment be made through an ordinance?  Why

 7     not through a decree?  It is, after all, an executive act.  This is where

 8     things get a bit confused.  Thank you very much.  I won't bother you

 9     further.

10                           [Defence counsel confer]

11             MR. O'SULLIVAN:  We can refer you to the expert opinion of

12     Professor Markovic, and the position is this:  That a decree is an

13     instrument issued by an organ with executive power.  It comes from the

14     executive body.  And an ordinance, or an "ukaz," emanates from a body

15     without executive power.  Now, in the context of this promotion, we say

16     it's a promotion according to the law provided for in the law, and the

17     law also said that it required an ordinance, the baptism of the

18     ordinance, to become effective.

19             JUDGE NOSWORTHY:  Yes, I'm sorry, Mr. O'Sullivan, with the leave

20     of the Presiding Judge.  You have said, though, that the ordinance is of

21     a declarative nature.

22             MR. O'SULLIVAN:  Correct, correct.  It --

23             JUDGE NOSWORTHY:  Merely declarative.

24             MR. O'SULLIVAN:  Correct.

25             JUDGE NOSWORTHY:  That which was necessary has been done before

Page 27010

 1     in terms of the appointment, but this is like a formality?

 2             MR. O'SULLIVAN:  Correct.

 3             JUDGE NOSWORTHY:  Very well.  Thank you.

 4             MR. O'SULLIVAN:  Now, the second point we wish to make in

 5     relation to this promotion is that it occurred on the 13th of May, 1999,

 6     which is the traditional Security Day in republic.  Indeed, Security Day,

 7     the 13th of May, had been a traditional police holiday from the days

 8     preceding the SFRY and during the SFRY, and including during the life of

 9     the FRY.  Security Day, as we have shown in our submissions, is a day of,

10     we say, a police holiday, where there are commendations, speeches, public

11     relations, literary contests, awards, memorials.

12             And on the 13th of May, 1999, during the war, of course, the

13     celebration was much more subdued, but on that day Mr. Milutinovic hosted

14     a small reception of some 20 officers from the different branchs of the

15     Ministry of the Interior.  You have Exhibit 1D715, which is the draft

16     speech and the list of guests, both of which were prepared in the

17     Ministry of the Interior.  It's a purely ceremonial event, a purely

18     ceremonial address Mr. Milutinovic made to the officers that day.  He

19     congratulates the MUP on their holiday.  He makes an appeal for the

20     bombardment to stop, and for peace and normal life to resume.  Now, those

21     are the circumstances surrounding this promotion, a Security Day

22     celebration, an ordinary promotion according to the law.

23             Let me now move to the wartime decrees, which is the only time

24     that the president of the republic may sign decrees.  Now, before I get

25     to the substance of that, I will respond to what the Prosecutor said at

Page 27011

 1     page 26816, and there he refers to Professor Markovic's expert report,

 2     1D682, paragraph 2.26.  Now, Professor Markovic did not say that the

 3     decree power is a reserve power under the Constitution of the Republic of

 4     Serbia.  What he did say was that the ability to declare a state of war

 5     is a reserve power under the Serbian constitution.  In other words, on

 6     the issue -- on the matter by virtue of the paramountcy of the federal

 7     constitution, the federal organs declare the state of war.

 8             And once the state of war is declared, then Article 83(7) of the

 9     Serbian constitution becomes operative for the duration of that irregular

10     period, the state of war.  And we dealt head on with this matter.  We

11     presented the 16 decrees that were presented for signature by the

12     government to Mr. Milutinovic.  We also explained, as Article 83(7)

13     provides, that once the state of war ended, there was a requirement to

14     submit those decrees to the National Assembly, which he did.  And we deal

15     with that in paragraphs 21 to 54 of our brief.

16             Now, contrary to the allegations of the Prosecution, we say that

17     Mr. Milutinovic did not use the decree power to further a JCE; that's

18     contrary to the law and the facts and completely misconstrued by the

19     Prosecutor.  As I just said, the ability to sign the decree under 83(7)

20     is contingent to an irregular situation, a state of war that has been

21     declared by the body.

22             The four decrees are of relevance, we say, and all four decrees

23     are dated the 6th of April, 1999, and I'll explain why those four are

24     important.  There's the decree on internal affairs, the decree of

25     assembly of citizens, the decree on domicile and residents, and the

Page 27012

 1     decree on ID cards.  Now, all four of these decrees were presented to

 2     Mr. Milutinovic for signature on the 6th of April.  All four of these

 3     decrees or similar decrees had already been on the books in the former

 4     Yugoslavia in the SFRY.  They were standard decrees that would be

 5     implemented in the case of a state of war.

 6             The decree on internal affairs expanded the ability of a superior

 7     in the MUP to impose measures to punish subordinates.  It enlarged the

 8     list of grave offences, which included the prohibition of the exhibition

 9     of national, racial, or religious intolerance.  Among other things, I

10     would submit that this shows that there certainly was no way to argue

11     that this was a furtherance of a JCE, when the powers of the superiors to

12     punish subordinates is expanded and there's a grave offence for the

13     exhibition of national, religious, or racial intolerance; in fact, that

14     shows just the contrary.

15             The decree on assembly imposes the restrictions on public

16     assembly, the decree on ID cards lowers the age from 16 to 14, and the

17     decree on resident provides that residents must register their domicile.

18             Now, in relation to all four of these decrees, there is a

19     statement of reason which accompanies it, it accompanies all four of

20     them; and statement of reasons states that it's to create the

21     prerequisite for the Ministry of the Interior to carry out its function

22     efficiently in wartime conditions.  We say it's important for the state

23     to know where citizens are living, to be able to identify its citizens in

24     case of mobilisation or casualty.  Lowering the age from 16 to 14 could

25     deal with questions of delinquency.  There's questions of public safety

Page 27013

 1     and assembly, rationalised food, and so on.  There's nothing criminal or

 2     nefarious about any of these decrees, and it's pure fancy to suggest that

 3     there is.

 4             On the same day when there's a decree -- a proposal from the

 5     government, a decision from the government, to make the MUP work more

 6     efficiently, it defies logic to say, well, at the same time, they're

 7     proposing decrees on residents and ID cards to make sure that they can

 8     expel the Albanian citizens.  There's no connection between these four

 9     decrees and any kind of criminal conduct or intent or anything of the

10     sort.

11             I would like to move now to the final part of my submissions, and

12     in this part I will deal with His Honour's question from yesterday; and

13     it has to do with state of mind, Mr. Milutinovic's state of mind, what

14     animated his conduct.  Now, we know that is during the relevant period of

15     1998 and 1999.  Well, in 1998, Mr. Milutinovic knows that there's an

16     armed insurrection happening in part of the territory of the Republic of

17     Serbia, he knows all the steps that are being taken by the republic and

18     federal levels.  And, indeed, at the Supreme Defence Council meeting on

19     the 4th of October where the position of seeking peace primarily and

20     defending if attacked, on the 4th of October, Mr. Milutinovic says:  "We

21     must do everything.  If more needs to be done, we should do it."  And, of

22     course, that is the period, October-November, that Mr. Milutinovic is

23     most active in the negotiation of process, of trying to achieve

24     negotiation.

25             At paragraph 630, the Prosecution refers to in its brief, 630, it

Page 27014

 1     refers to Exhibit 2827, which is a document from the deputy minister of

 2     information on the 1st of October, 1998.  It arrives on Mr. Milutinovic's

 3     desk, and it refers to media reports in Western media in relation to

 4     Gornje Obrinje.  Now, the Ministry of Information is reporting that

 5     Western media has stated and Albanian press has stated that there's an

 6     alleged massacre of Albanian citizens, civilians, by the Serbian police

 7     in Gornje Obrinje.  And the Ministry of Information says this, and I'm

 8     quoting:  "Officials of the Ministry of the Interior deny that its

 9     members conducted operations against civilians, adding that an

10     investigation would be launched into the alleged crime which they learned

11     about from the Western media.  The Ministry of Information denied the

12     reports in the foreign media via the internet and in letters to foreign

13     editorial offices."

14             Now, here the president is receiving information from the

15     Ministry of Information.  He's informed that the MUP has denied the

16     accuracy of the foreign media and that an investigation is going to be

17     undertaken.  Now, clearly that is a -- Mr. Milutinovic's state of mind

18     there is that he's informed that the proper functioning channels are

19     going to deal with it.  I don't think there's any dispute in this case

20     from either side that the MUP and the VJ were sophisticated structures

21     with competent people that functioned during 1998 and 1999.  And here the

22     president of the republic is informed that precisely that is going to

23     happen.

24             JUDGE CHOWHAN:  I'm sorry.  Maybe that is not very relevant, but

25     I'm confused with respect to the periphery of time.  I've read the brief

Page 27015

 1     of the Prosecution, where they make a mention of a report sent by a

 2     Prosecutor from this place to the government.

 3             MR. O'SULLIVAN:  Now --

 4             JUDGE CHOWHAN:  Now, did that activate anybody there or did it

 5     come to the notice of your client or something or any action taken,

 6     because nothing has been said on that.

 7             MR. O'SULLIVAN:  Yes.  Well, what the Prosecution fails to point

 8     out is that the evidence of Mr. Kojic, who was in Mr. Milutinovic's

 9     office, was that that letter was never received by his office; whereas,

10     Mr. Kojic did confirm that this exhibit, 2827, was received.

11             I turn now to some of the allegations made by the Prosecution

12     questioning why Mr. Milutinovic should be present at international

13     meetings, and that was at transcript 26815.  And Prosecution asked why

14     did Professor Markovic say that Mr. Milutinovic did not conduct foreign

15     relations and relations with foreign organizations.  Well, the only

16     reason that was addressed by us is because paragraph 8.1 of the

17     indictment alleges it, and it demonstrates a complete misunderstanding of

18     the constitutions of the FRY and Serbia, because on the basis of

19     paramountcy, foreign relations are strictly within the realm of the

20     federal government.  That's why it was addressed.

21             Now, was Mr. Milutinovic present at certain meetings?  Yes, he

22     was.  Ambassador Vollebaek, head of the OSCE, said he met Mr. Milosevic

23     on one or two occasions, and at one or two of those meetings

24     Mr. Milutinovic was present.  And in his evidence, P2634, paragraph 39,

25     Mr. Vollebaek says this in relation to Mr. Milutinovic's presence:  "I

Page 27016

 1     believe that this was to indicate that Kosovo was a part of Serbia, and

 2     they did not want to talk about Kosovo without the president of Serbia

 3     present."

 4             Well, we know that one of the constitutional provisions of the

 5     Republic of Serbia -- Constitution of the Republic of Serbia is that the

 6     role of the president is to symbolise unity of the state.  Then the

 7     Prosecutor asked:  "Well, where did Mr. Milosevic and Mr. Milutinovic sit

 8     in relation to one another?"  And the answer was that Mr. Milutinovic sat

 9     to the right of Mr. Milosevic.

10             I believe that's what's called protocol.  We've all seen people

11     sitting in circles in big comfortable chairs and sofas, and you have the

12     head of state and to his left was sitting the president of the republic.

13             General Naumann, there's a supplement information sheet, P2561,

14     in relation to the technical negotiations which took place in October on

15     reducing VJ and MUP forces in Kosovo to stabilize Kosovo.  The

16     Prosecution for some reason doesn't mention the supplemental information

17     given by General Naumann, which one would think the questions are puts to

18     Mr. Naumann so that he can clarify the position.  He said Mr. Milutinovic

19     was present and not very active.  Now, why would he be very active?  This

20     is a very technical meeting where MUP and VJ people with all the

21     information about forces and logistics are there, and they're negotiating

22     with Clark, Naumann, Byrnes, and the rest.  What we do say about this,

23     however, is it goes to Mr. Milutinovic's state of mind.  He realizes that

24     they are complying with the UN resolution to withdraw, he knows that his

25     main task at that point is to seek a political solution, he's working

Page 27017

 1     with the state delegation, and here he is present when the points of the

 2     October Agreements are being hashed out.

 3             The Prosecution also refers to a man named Phillips who

 4     testified, and Phillips attended the meeting with William Walker and

 5     Mr. Milosevic.  Now, initially, Phillips claimed that Mr. Milutinovic was

 6     present.  He was challenged on that.  He was asked to give a date; he

 7     gave dates.  He was shown newspaper articles, and Mr. Milutinovic is not

 8     present.  Finally, he concedes -- Phillips concedes:  "After all this

 9     time, I may very well -- I could very well be wrong."  We've explained

10     Mr. Milutinovic's presence with meeting Hill and Petritsch in 1998 and

11     being in France in 1999.

12             Turning to paragraph 613 of the Prosecutor's brief, we say it

13     misrepresents the evidence that in 1998 and early 1999, Mr. Milutinovic

14     was preventing and others were preventing the ICTY from investigating in

15     Serbia.  Now, we're in 1998 and 1999, and the key things here are to

16     remember that in relation to Racak and in relation to Radonjic lake,

17     there were investigations by local authorities and foreign forensic

18     people, the Finnish were there.  It was an internal matter because ICTY

19     jurisdiction applies when there is an armed conflict.  There was no armed

20     conflict in 1998 and early 1999.  Those were purely domestic matters, and

21     they were being investigated.  Nobody can say anything to the contrary.

22     Indeed, the Prosecutor called Dr. Dunjic and his colleague to testify.

23     Perfectly legitimate position taken by the authorities.  There's no

24     abdication of responsibility, there were investigations.

25             The OTP brief at paragraph 565.  I'll give you the reference and

Page 27018

 1     I'll ask you to read it at your leisure because it's not easy to explain

 2     orally.  There the Prosecution is alleging -- the Prosecution provides a

 3     quotation from Mr. Milutinovic's interview with the Prosecutor, P604.

 4     It's pages 150 and 151, and they say it shows that Mr. Milutinovic had

 5     influence over Mr. Milosevic.  Now, I'm going to ask you to look at

 6     paragraph 565, and then look at the reference in Mr. Milutinovic's

 7     interview, page 150-151, because in the interview, the investigator

 8     says -- asks Mr. Milutinovic:  "Were you ever very close to

 9     Mr. Milosevic?"

10             His answer is:  "No, I couldn't say that I was close."

11             Now, that sentence is not included in the brief.  So I just ask

12     you to read the full context of the questions and answers, and you'll see

13     that the inference or the submission doesn't follow at all.

14             Bombing will lead to massacres.  It's Mr. Milutinovic's position

15     that he categorically denies that he ever uttered those words to

16     Mr. Petritsch or anyone else.  We've analysed the evidence in this case

17     at paragraphs 216 to 221.  The Prosecution's brief provides no analysis

18     of this because it cannot withstand scrutiny.  Mr. Milutinovic never said

19     those words.

20             Ambassador Petritsch told you that he --

21             JUDGE BONOMY:  Is there evidence that he denies it?  Just so that

22     there's no misunderstanding here.

23             MR. O'SULLIVAN:  That's our submission.

24             JUDGE BONOMY:  Yes.  All right.

25             MR. O'SULLIVAN:  Yes.  That's --

Page 27019

 1             JUDGE BONOMY:  But it's not in the interview, for example?

 2             MR. O'SULLIVAN:  No.

 3             JUDGE BONOMY:  Thank you.

 4             MR. O'SULLIVAN:  Of course, his interview took place, and he was

 5     not asked by the Prosecutor about any of it.

 6             JUDGE BONOMY:  No, no.  I understand that.

 7             MR. O'SULLIVAN:  I understand.

 8             JUDGE BONOMY:  [Microphone not activated]

 9             THE INTERPRETER:  Microphone, Your Honour, please.

10             JUDGE BONOMY:  [Microphone not activated]

11             MR. O'SULLIVAN:  Now, the evidence is, as you know, that

12     Mr. Petritsch does not recall Mr. Milutinovic ever saying this at a

13     meeting with him.  He admits that he's rationalised it eight years after

14     the fact after seeing a memo.  He never even mentioned that he spoke to

15     Mr. Milutinovic at Rambouillet when he was interviewed by the Prosecutor

16     in May and June 1999, a few short months after the events.  The

17     Prosecutor in its submission says the interview in May took place in very

18     intense circumstances.  Well, there was two sessions, one was the 14th of

19     May and the second was the 9th of June.  What's intense about that?  When

20     Ambassador Petritsch testified in Milosevic, he never mentioned that he

21     ever spoke with Mr. Milutinovic at Rambouillet.  Now, the Prosecution

22     says we didn't cross-examine Petritsch on that fact.  There's no need to

23     cross-examine him on that fact; it's part of his testimony.  We're just

24     pointing out in submission that this is his evidence.  The memo in

25     question is P562.  If you look at the memo, it does not say that

Page 27020

 1     Mr. Milutinovic says, Bombing Serbia will lead to massacres.  That's the

 2     first point.  But we do know that Mr. Petritsch has attributed those

 3     words to Mr. Stambuk in his interview at the Milosevic trial, and he

 4     comes here and says, well, Stambuk and Milutinovic both said it and

 5     exactly the same change.  In our brief, we show the parallels, that he

 6     asked the same questions of both men, and both men said the same thing in

 7     the same context, hardly.  We ask you to review that evidence.

 8             In the final brief of the Prosecutor, paragraph 45 says,

 9     according to Petritsch:  "It's very, very unlikely that a mistake was

10     made at the time of the dispatch."

11             JUDGE BONOMY:  Do you have a submission about -- you've been over

12     Petritsch in detail yesterday as well.  Do you have a submission about

13     why he would give us inaccurate evidence?

14             MR. O'SULLIVAN:  Because he's mistaken, he's rationalised it.

15             JUDGE BONOMY:  That is the basis on which you say that his

16     evidence is inaccurate.

17             MR. O'SULLIVAN:  Yes.

18             JUDGE BONOMY:  Thank you.

19             MR. O'SULLIVAN:  Now, at paragraph 216 of our brief, we review

20     the circumstances surrounding the creation of that memo.  We know that

21     memos are created ad hoc according to the testimony of Petritsch and

22     Kickert.  This particular memo was prepared at 6.00 in the morning on the

23     20th of February by Kickert, who was not -- never claims to be present at

24     any meeting between Mr. Petritsch and Mr. Mayorski and Mr. Milutinovic.

25             Now, we know that on the night of the 19th and 20th at

Page 27021

 1     Rambouillet, Ambassador Petritsch was working with the state delegation

 2     from 7.00 p.m. until 5.00 in the morning.  That's the evidence of

 3     Professor Markovic, that's the evidence of Kickert.  He also met in the

 4     early morning of the 20th with the Albanian delegation.  Remember, the

 5     20th of February is the day when the first ministers of the Contact Group

 6     were coming to the castle, when the two parties presented their views and

 7     their positions on the political components of the Rambouillet agreement;

 8     that's the 20th.  So all that night before, from 7.00 p.m. Friday until

 9     5.00 in the morning Saturday, Petritsch is with the delegation and

10     they're working on the agreement.

11             They're working all night, it's charged, it's hectic, it's busy,

12     and common sense tells you that that's a perfect formula for mistakes to

13     happen, mistakes to occur.  And Kickert acknowledged that because he

14     pointed out that dispatches were made in that kind of environment, this

15     one and others.  And when one other dispatch from 1998 was pointed -- was

16     shown to him and it contained a mistake, he says, "Well, yes, those are

17     the kind of things that can happen; you can get a name wrong."

18             So those are the surrounding circumstances.  It's rationalised by

19     Petritsch, he doesn't recall it, never talked about it, and the

20     circumstances surrounding that memo which he say refreshed his memory are

21     unreliable.  That's why we say it never happened.

22             JUDGE BONOMY:  On the points you raised about Petritsch

23     yesterday, am I right in thinking your submission went further than

24     simply that he was mistaken?

25             MR. O'SULLIVAN:  In regards to the other aspects.

Page 27022

 1             JUDGE BONOMY:  Yes, the negotiations themselves.  Yes.  Thank

 2     you.

 3             MR. O'SULLIVAN:  Now, I'm talking at this point about

 4     Mr. Milutinovic's state of mind and what he was aware of, what he knew,

 5     what he legitimately believed during the war. I'm moving to that now.  We

 6     can look at that based on the information available to him during the

 7     war, the meetings he attended, people who was in contact with.

 8             Now, his -- the person from his office, Mr. Kojic, told you that

 9     Mr. Milutinovic dealt with civilian matters, removal of hazardous

10     material, food supply, electrical supply.  You know that Mr. Milutinovic

11     travelled to Vojvodina, to Novi Sad, which, in fact, is where the NATO

12     bombings began from the first day, where oil refineries were hit and

13     bridges were taken out.  Mr. Milutinovic was meeting with the deputy

14     prime minister of Serbia, Mr. Tomic, Mr. Cosic testified, the minister of

15     energy, Mr. Babic, the general manager of the electrical industry.

16             Now, remember, Mr. Milutinovic has already told the Prosecutor

17     that with the declaration of war, the federal organs are conducting the

18     war effort and defending the country.  He attends weekly meetings, short

19     meetings, meetings that lasted less than half an hour with the dual

20     purpose of getting a briefing on wartime conditions; by that, we mean

21     protection of the population, economy, diplomatic issues, trying to find

22     a way to end the war, rebuilding the country.

23             And we also know that the second reason for those meetings was to

24     give assurances to the population.  Now, there's a history of World War

25     II which was very painful for Serbia when the Nazis bombed the city on

Page 27023

 1     the 6th of April, 1941, when the king and the government left the country

 2     for Cairo.  Very painful memories for that in the country.  And part of

 3     those meetings was to publicize that the leadership was still in the

 4     country.  There were people from the federal government and the republic

 5     government discussing these matters, but it was also used to broadcast

 6     and to publicize on the front page of the daily newspapers.

 7             Now, to state the obvious, at none of these meetings is there

 8     discussion about committing crimes against the Albanian civilians or the

 9     plan to expel or how is it going in succeeding in the plan to expel.

10             Then we look at the information Mr. Milutinovic received.  He

11     received information on the destruction of -- caused by the NATO bombing.

12     He received all the reports on the hazardous materials, food,

13     electricity, telecommunications.  He received information from the

14     Ministry of Foreign Affairs, he received MUP bulletins, he received the

15     intelligent department briefings from the VJ, he received the daily

16     combat reports from the VJ.  His staff summarized information they

17     received from the international and domestic media and other sources for

18     him when he arrived in the office, so that he knows what's going on.  And

19     we say that based on all this information, Mr. Milutinovic knows and

20     believes that the competent structures authorised to conduct the war

21     during the state of war were fully functioning, fully operational,

22     fulfilling their duties and their obligations.  There was no evidence to

23     suggest they weren't.

24             And what else is he aware of?  Well, on the 6th of April, he's

25     aware of the unilateral proposal for a cease-fire from both levels of

Page 27024

 1     government.  He's aware on the 8th of April that the federal government

 2     has denounced the heightened NATO bombardment during this period, the

 3     very period where the government has asked -- jointly, the governments

 4     have asked for a cease-fire for Easter period.  He knows the federal

 5     government has made an appeal to the world for humanitarian aid.

 6     Mr. Bulatovic said that would include aid to the Kosovar Albanians.

 7     Mr. Milutinovic knows that in early April, the staff of the Supreme

 8     Command made a public announcement condemning NATO and asking for the

 9     bombardment to stop and for people to return home.

10             You'll see in our brief that we made a brief selection of the VJ

11     intelligence documents, but we ask you to read them all.  On the 3rd of

12     April, the VJ intelligence says that:  "NATO is planting information in

13     the Albanian diaspora; but within the next 24 to 48 hours, they'll begin

14     indiscriminate bombing and raze Kosovo and Metohija to the ground."  On

15     the 25th of April, the intelligence documents say that the Kosovar

16     Albanian refugees are being sent in circles by the CIA at the

17     Macedonia-Albanian border to generate public support for NATO.  And the

18     suggestion of the intelligence document says:  "We should call once again

19     on the refugees to return home."

20             On the 12th of May, the intelligence report says that the West is

21     still manipulating the question of refugees.  Now, when General Krga was

22     here he testified about this particular document, and he said that every

23     option and initiative to find a peaceful solution to end the war was

24     being sought.  They were creating conditions -- trying to create

25     conditions for the cessation of air attacks and to launch dialogue.  And

Page 27025

 1     he said that one of the factors that the VJ was counting on was the

 2     return of refugees [Realtime transcript read in error "VJ"].  He knew of

 3     no one and believed that no one had the aim of expelling them.

 4             25th of May, Mr. Milutinovic learns that there are 4.000 -- that

 5     4.000 refugees returned from Macedonia in one day; and the next day, by

 6     noon, there were 400 NATO sorties including B-52 and B-18 bombers.  And

 7     the analysis of this is that it's supporting the KLA breakthrough.  The

 8     consequence is that previously destroyed targets were hit, and this

 9     spread panic and demoralised the population in the region.

10             When you review these documents that crossed his desk,

11     Mr. Milutinovic is told that there's a functioning military court system

12     with prosecutors and that there are complaints and investigations.  Now,

13     that's his state of mind, that's the information he has.

14             Mr. Milutinovic knew of no plan, never heard of a plan to expel

15     Albanians, he never intended to harm anyone, he never conducted himself

16     in any fashion whatsoever that could begin to be construed as criminal,

17     and yet the Prosecution claims that there's omission on his part.  Well,

18     let's look back at one of the decrees, the decree I mentioned early under

19     83(7), where the government takes over temporarily from the National

20     Assembly.

21             JUDGE CHOWHAN:  Excuse me.  Here, at page 33, line 11, I think

22     you meant something else instead of the word "VJ" there, "return of VJ,"

23     am I right?

24             MR. O'SULLIVAN:  Sorry.  Yes, "the return of refugees."

25             JUDGE CHOWHAN:  Thank you.

Page 27026

 1             MR. O'SULLIVAN:  The VJ was counting on the return of refugees.

 2     Thank you.

 3             Now, this is the decree on internal affairs.  I would like you,

 4     the Chamber, to read paragraphs 1079 and 1080 of the Prosecutor's brief.

 5     There the Prosecutor's position is that this decree on internal affairs

 6     provided MUP officials with greater power to detain suspects, restrict

 7     movement, perform searchs, to carry out orders unless ordered to carry

 8     out criminal acts, to implement more efficient disciplinary measures.  As

 9     I mentioned earlier, there was also the grave offence in the exhibition

10     of national, religious, racial intolerance is included.

11             Now, Mr. Milutinovic is aware of this document; he signed the

12     decree.  He has every reason to believe that the MUP structures are

13     functioning and their functioning with greater powers than they had in

14     peacetime, in conformity with the law.  And in this regard, I would refer

15     the Chamber to -- additionally to paragraphs 34 and 38 of our brief and

16     paragraphs 28 to 33 of our brief.

17             And this might be the appropriate time for me just briefly to

18     make a comment about the submissions made by my learned friends by

19     Mr. Markovic and his expertise.

20             JUDGE BONOMY:  Now, Mr. O'Sullivan, while we are quite happy to

21     be flexible about the use of time, we also have to have regard to the

22     fairness of the situation and the way in which the Prosecution certainly

23     recognised the terms of the order we made.  So I don't think you should

24     regard yourself as having a free hand to repeat again a lot of what's in

25     the brief.

Page 27027

 1             MR. O'SULLIVAN:  Then I'll move to the two matters and I'll be

 2     finished.  The first matter is to deal with Judge Chowhan's question

 3     about the VSO.  What I've been describing here is Mr. Milutinovic's state

 4     of mind, his awareness, the information at hand.  He knows the VJ had no

 5     plan to expel.  The VJ is commenting on manipulation of refugees by

 6     the CIA.  He knows the wartime courts are functioning.  He knows the

 7     civilian courts are functioning.  These intelligence reports also say

 8     that there's manipulation in the Western media, falsehoods in the Western

 9     media, which are unfounded.  And we've referred to those submissions in

10     our brief chapter and verse on that.

11             So there's absolutely no reason for him to think that anything

12     untoward is happening or that there's any reason to propose a meeting of

13     the Supreme Defence Council.  His understanding, of course, on the basis

14     of who's commanding the army, on the army's functioning in the wartime is

15     clear.  There's no basis for him, for a man in his position, with his

16     information, with his activities during the war, to think that there's a

17     reason to convene or propose the meeting be convened.  That's our

18     position.

19             JUDGE CHOWHAN:  Thank you.

20             MR. O'SULLIVAN:  I do wish to conclude by referring to evidence

21     regarding Mr. Rugova.

22             JUDGE BONOMY:  Just before you do that, you should not be

23     diverted from dealing with the criticism of Markovic's expertise.  I

24     didn't interrupt to stop you doing that, but just to make sure we focus

25     on what you really need to address and I think that is something you do

Page 27028

 1     need to address.

 2             MR. O'SULLIVAN:  Well, very well.

 3             We would ask the Court, first, to look at 1D684, that's his

 4     curriculum vitae; and we point out that the Prosecution has acknowledged

 5     that he's an expert in the field of constitutional law, given his

 6     training and expertise.  And we called him to deal with the allegations

 7     in the indictment which are completely misguided on the constitution and

 8     authority and competence of the president of the FRY; that's in part 3 of

 9     our brief.  And we think it's somewhat disingenuous or very close to

10     being disingenuous for the Prosecution to make submissions when they did

11     not call a constitutional expert.  They dropped their first one and would

12     not even disclose to us the report of the second one.  I think it's a

13     fair comment to say the reason they didn't call someone is because that

14     expert wouldn't say what they wanted to hear.

15             Now, the fact that Professor Markovic is also in government, also

16     working in the peace process, he's there because of his constitutional

17     expertise.  There's nothing in his opinion, interpretation of the

18     constitution, that would suggest bias, we say.  I mean, you can make a

19     blanket statement, but there's no detail of that.  It certainly doesn't

20     come out of his cross-examination.  And, indeed, in some points of the

21     Prosecutor's submissions, they referred to Professor Markovic.  So a

22     blanket condemnation of someone without any detail is untenable; and,

23     quite frankly, we've put in annex 1 of our brief a full review of his

24     expertise and his expert testimony.  We say it's rock solid, explains the

25     situation, and it shows the frailties and the weaknesses of the

Page 27029

 1     Prosecution's submissions or allegations.

 2             The evidence of Dr. Rugova -- regarding Dr. Rugova in spring of

 3     1999, the evidence is that the international media had reported at the

 4     beginning of the war that Dr. Rugova was killed or wounded.  Well, quite

 5     untrue.  The Prosecution says that the contacts with Dr. Rugova are part

 6     of a Serb propaganda campaign.  We deal with this at paragraph 261 and

 7     271 to 276 of our brief.

 8             For some reason, the Prosecution's insisting that there was house

 9     arrest; nothing can be further from the truth.  Dr. Rugova met with

10     Mr. Milosevic on the 1st of April, and said he needed to travel abroad to

11     contact his key people.  The next day -- prior to that, state security

12     had been ordered to protect him.  The next day, they connect CNN

13     television in his house, they connect the phone line in his house.

14     Mr. Merovci is calling Skopje, speaking Chris Hill.  Mr. Rugova's

15     associates, Mr. Shala, Mr. Ramoj [phoen], Mr. Kortesi [phoen], are

16     located in Kosovo, and Mr. Rugova is asked:  Do you want to meet them?

17             Mr. Merovci said he demanded, the word he used was demanded, that

18     his family is children be allowed to travel to Skopje, and they were at

19     the beginning of April.  Between the 17th and the 21st of April,

20     Mr. Merovci himself travelled to Skopje, and travel arrangements were

21     made by state security.  There he met Petritsch, Hill, William Walker.

22     Mr. Rugova was giving press statements.  He had a press conference with

23     the Russian ambassador.  He met with the Russian patriarch Aleksei.  He

24     met on the 16th of April in Belgrade with Mr. Milutinovic.  Here's the

25     Prosecution evidence on that meeting:  Mr. Rugova and Mr. Merovci arrived

Page 27030

 1     in Belgrade with police escort.  There was a pleasant meeting.

 2     Mr. Rugova did not -- there's no complaint about house arrest.

 3     Mr. Rugova told Mr. Milutinovic that the majority of his party members or

 4     collaborators were in the west.  He needed to leave the FRY.  He needed

 5     to meet and work with party members.

 6             Mr. Milutinovic knew of his very difficult situation, that he'd

 7     spoken out publicly against the KLA, and Mr. Milutinovic said that Rugova

 8     had been pushed out by the KLA at Rambouillet.  Mr. Milutinovic said very

 9     diplomatically, "Kosovo is yours, you are a person, a leader of the

10     citizens of Kosovo, and the responsibility lies with you."

11     Mr. Milutinovic said this to Rugova in this meeting.

12             Mr. Rugova indicated he wanted to go to Macedonia.

13     Mr. Milutinovic said it wouldn't be safe for him in Macedonia.

14     Mr. Rugova said he wanted to go to Italy.  Mr. Milutinovic phoned Foreign

15     Minister Dini, the Italian foreign minister.  The Italians accepted, they

16     sent the plane; and Rugova, Merovci, and other family members travelled

17     to Rome.  What's the basis of this evidence?  P604, Mr. Milutinovic's

18     interview with the Prosecutor where he told them that, and the testimony

19     of Adnan Merovci.

20             Now, the evidence from these two people who were present at the

21     meeting, there's no mention that Dr. Rugova said to Mr. Milutinovic that

22     Kosovo was being emptied by oppression and violence.  There's no account

23     that Mr. Milutinovic said that the outcome -- that this was the outcome

24     of the international community.  Now, there's a matter of law and fact

25     here which we say is important.  The Rugova statement is admitted under

Page 27031

 1     Rule 92 quater, because Mr. Rugova, the late Dr. Rugova, obviously could

 2     not attend.  So there was no ability for us to have confronted

 3     Dr. Rugova.  We say you can accord no weight to what's in that statement

 4     because it's completely uncorroborated.  In fact, it's contradicted by

 5     what Mr. Milutinovic told the Prosecutor and by what Mr. Merovci told the

 6     Prosecutor.

 7             There's no mention of Rugova saying there's oppression and

 8     emptying Kosovo in the statement of Mr. Merovci.  The Prosecution never

 9     asked Mr. Merovci if this is correct, but Mr. Milutinovic was interviewed

10     by the Prosecutor.  It was the 12th and 13th of November, 2001.  Rugova

11     had been interviewed by the Prosecutor on the 1st and 3rd of November,

12     2001.  Prosecutor interviewers never challenged Mr. Milutinovic's

13     evidence.

14             Let me turn to the meeting in Pristina on the 28th, where there

15     is a joint declaration aimed at --

16             JUDGE CHOWHAN:  Just a word, please.  I apologise for

17     interruption.  Now, in context with Rugova and those days when then his

18     house was visited by your client and all, now there's also a journalist

19     lady staying with him.  What significance does that have, because I think

20     she did utter a few things .

21             And, secondly, when he's being called as the diplomat of Kosovo

22     and all that, he also gives a symbolic gift.  What does that indicate?

23             Thank you very much.

24             MR. O'SULLIVAN:  Thank you.  Perhaps I wasn't clear enough.  The

25     meeting on the 16th was in Belgrade.  Mr. Milutinovic never visited his

Page 27032

 1     home.  The symbolic gift was presented by Dr. Rugova to Mr. Milutinovic

 2     in Pristina on the 28th, and we know that that is a sign, a traditional

 3     sign of respect, that Dr. Rugova presented crystals to individuals when

 4     he met with them.

 5             JUDGE CHOWHAN:  So, culturally, that's something of respect,

 6     nothing otherwise, is it?

 7             MR. O'SULLIVAN:  Well, I'm not sure if it's cultural, it's just

 8     something that Dr. Rugova did.  Kosovo's rich in minerals, and for him it

 9     symbolised Kosovo.  And it was a sign of respect and friendship that he

10     presented to people, certain individuals when he met them.

11             JUDGE CHOWHAN:  But you did take the stand that wherever he was,

12     he was not under house arrest or anything of that sort.  That is what

13     you're saying, is it?  In that context, I was mentioning about that lady

14     journalist.

15             MR. O'SULLIVAN:  Yes.  Now, it may very well be a state of mind

16     of Dr. Rugova and Mr. Merovci at the time.  I'm sure they were scared.

17     They were concerned, they had to be.  They didn't know what would happen

18     to them.  But eight years later, we have the evidence of the state

19     security man and all the events that surrounded this whole event.  The

20     press report saying that -- the Western report saying that he's dead;

21     he's not.  He's the only interlocutor, the key interlocutor, that the

22     Serbian side at least have reasonable interlocutor.  Now, were they

23     scared?  I'm sure they were scared until the plane landed in Rome, but

24     the fact of the matter is they were sent to Rome.

25             Mr. Milutinovic said:  "Don't go to Macedonia, it's dangerous for

Page 27033

 1     you there."  Now who would the danger be if anyone but the KLA in

 2     Macedonia.  That's, I think, how I would -- we submit that is the proper

 3     interpretation of Mr. Milutinovic saying, "Don't go to Macedonia."  Then

 4     Mr. Milutinovic turns around and says, "All right.  I'll phone Mr. Dini,

 5     the foreign minister."  Now, if there's a plan to ethnically cleanse,

 6     don't you get rid of the leadership first?  You don't save lives.  You

 7     don't tell the man, You're the legitimate leader.

 8             And for -- the Prosecution says, Well, that Dr. Rugova in the

 9     Milosevic trial said they were doing this to discredit him, but they

10     don't look at the next question Mr. Nice asked Mr. Rugova, and say,

11     "Well, were you discredited?  He said, "Of course not.  I was elected

12     president in 2000 and 2001 of Kosovo."

13             None of this is a sign of anything on the part of Mr. Milutinovic

14     and others to stop the bombing, to stop the madness, including Rugova.

15     Why would he want his people bombed, and to attempt to once again engage

16     in that?

17             JUDGE CHOWHAN:  That's very kind.  Thank you.

18             But please tell me when your client gives him that place, now why

19     his role in the peace talks was, as we saw in the evidence, not very

20     prominent, Dr. Rugova's.  Why didn't you induct him that way?  Why didn't

21     you put him at the right place.

22             MR. O'SULLIVAN:  Well, I think the reason Dr. Rugova was not

23     prominent at Rambouillet is because the KLA were in control, Mr. Thaqi

24     and others.  Mr. Rugova had been sidelined.  As we from that Rule 70

25     document, he was under pressure from the KLA not to negotiate.

Page 27034

 1             JUDGE CHOWHAN:  No.  But is there any expression of your desire

 2     to have him there or deal with him in those talks because you were, after

 3     all, a party.

 4             MR. O'SULLIVAN:  You're talking about Rambouillet?

 5             JUDGE CHOWHAN:  Yes.

 6             MR. O'SULLIVAN:  He was a part of --

 7             JUDGE CHOWHAN:  No, no, overall.  I'm talking about overall

 8     negotiations.

 9             MR. O'SULLIVAN:  Well, he had been invited numerous times in

10     1998.

11             JUDGE CHOWHAN:  What about later than that?

12             MR. O'SULLIVAN:  Well, this meeting that he and Mr. Milutinovic

13     had on April 28th was again a request to resume -- in 1999, to stop the

14     bombing and resume talks and to have a Temporary Executive Council until

15     a permanent body was -- legislative body could be established in Kosovo.

16             JUDGE CHOWHAN:  Thank you.

17             JUDGE BONOMY:  Do you have anything to say on the point of the

18     journalist that was included in that question?

19             MR. O'SULLIVAN:  The point of the journalist fades completely

20     when we look at everything that was done to accommodate Mr. Merovci and

21     Mr. Rugova.

22             Now, the last point I'll make is in relation to the meeting on

23     the 28th in Pristina, and I ask you to look at transcript 8469-8471.

24     Mr. Merovci has been in Dr. Rugova's house since the 31st of March.  He

25     returned to his flat twice.  He was escorted by the police to his flat

Page 27035

 1     twice.  His Albanian neighbour is still living in her apartment.  Now,

 2     she tells him that a policeman had come to his flat with a dog, and

 3     obviously it had been damaged and destroyed.  As well, it had been

 4     ransacked.  Now, certainly, that's the full context of the statement

 5     Mr. Merovci made to Mr. Milutinovic at that meeting.  He said that people

 6     were being forced out of their homes, his neighbour wasn't, and that his

 7     flat had been destroyed and it had been done by the MUP.  And

 8     Mr. Milutinovic expressed surprise at that.

 9             We say the neighbour's still living in her flat.  His house may

10     have been ransacked, yes.  We don't know what other information or what

11     other steps were taken by those on the ground in Pristina to find out

12     what happened.  We say that certainly isn't evidence that should put

13     Mr. Milutinovic on notice, given the full context that there's some

14     nefarious crimes going on here.

15             To conclude, Your Honour, we have nothing to add to part 5 of our

16     brief where we review charges and the law.  We hold the Prosecution to

17     strict proof of all the elements in the indictment.  We wish to adopt

18     certain submissions of co-accused, the Ojdanic brief part 4, legal issues

19     and responsibilities; the Pavkovic brief, the legal submissions contained

20     in paragraph 11 to 48 and 340 to 358; we adopt the submissions of the

21     co-accused on crime base and evidence of no plan and no JCE.

22             Finally, two evidentiary points.  P2166, a document that purports

23     to be minutes of the inter-departmental staff.  We refer you to our brief

24     at paragraphs 176 to 178.  We say that it's an unreliable document.  We

25     objected the first time it was tendered.  The second point is paragraph 4

Page 27036

 1     of the OTP brief, which says that except for the Lazarevic interview, you

 2     are not invited to rely on any of the statements of the co-accused to

 3     prove the acts or conducts of an accused.

 4             Those are our responses to the Prosecution's submission.  We say

 5     our written brief fully addresses every issue, every allegation, and

 6     Mr. Milutinovic was never involved in any conduct at all, never

 7     manifested criminal intent.

 8             And one last point:  He's a man who sought solutions through

 9     dialogue and compromise.  We know that he had been a politician most of

10     his adult life and a diplomat, and there's no possible connection

11     between, we say, between Mr. Milutinovic and radical politicians or

12     radical speech.  And, in fact, in P604, his interview with the

13     Prosecutor, annex 24, he says this about Mr. Seselj, a man he defeated to

14     become president in 1997.  Mr. Milutinovic says:  "Mr. Seselj had an

15     extreme rightist and fascist approach to all questions in Yugoslavia."

16             The complete antithesis of what Mr. Milutinovic advocated, said,

17     and practiced.  I thank you for your attention, Your Honours.  Those are

18     our submissions and we request a full acquittal.

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

20             We'll adjourn now and resume at 11.15.

21                           --- Break taken at 10.49 a.m.

22                           --- On resuming at 11.19 a.m.

23             JUDGE BONOMY:  Mr. Fila, we shall now hear your submissions on

24     behalf of Mr. Sainovic.

25             MR. FILA:  [Microphone not activated]

Page 27037

 1             THE INTERPRETER:  Microphone, please.

 2             MR. FILA: [Interpretation] Mr. President, Your Honours, my

 3     learned friends, I hope we are friends because we've been together long

 4     enough, I wish to say to you and to take this opportunity because this is

 5     my last address to the Court, and you will address us in due course, to

 6     say two things.  Firstly, I acted for 12 and a half years before this

 7     Tribunal; it's a long time even for me.  And now that I'm about to leave,

 8     I remembered a wonderful speech made by Napoleon Bonaparte, who addressed

 9     his soldiers who participated in the battle of Austerlitz.  He said:  "Be

10     happy because all your life you will be able to say I took part in it."

11             It has been an honour for me to have taken part here, and I am

12     especially gratified to have taken part in this trial truly because it

13     has been conducted on a highly professional level, both by Your Honours

14     and by my learned friends and the other Defence counsel.  I was afraid it

15     might be like the Milosevic trial, and I'm glad that my fears were not

16     confirmed.  For all these reasons, I cannot mention any successes in

17     track and field by Serbia as my colleague from Jamaica was able to do,

18     but I can tell you wonderful a French saying, which is "partir, c'est un

19     peu mourir," which means, "every time you say good-bye, you die a

20     little," and that is the feeling I have here now that I'm about to leave

21     you.

22             Let me now move on to the substance of the matter.  I will not

23     say anything about my final brief for two reasons:  Firstly, because I

24     promised you I wouldn't if you remember correctly in order to avoid

25     bothering both you and myself and the Prosecutor; and, secondly, because

Page 27038

 1     I belong to a law school which doesn't consider closing arguments to be

 2     worth much because when a Defence counsel is well prepared, when a

 3     counsel presents the right evidence, if the trial is concluded and the

 4     Judges have no idea what the counsel was trying to prove, you've wasted

 5     your money.  So I hope that my Defence case became clear in the course of

 6     its presentation, and I don't know what I should add.  So I will deal

 7     only with the closing arguments of the Prosecutor which we have heard

 8     here in the past two days.

 9             And, unfortunately, I have to abide by what I said before, that

10     the level of evidence presented by the Prosecution - and I said this

11     during the pre-trial stage and I abide by it now - that the level is very

12     low.  In another situation, this should have made me happy, but this is

13     history.  This is the International Criminal Tribunal and not just anyone

14     can take part here, either as Prosecution or Defence or as a Judge.  The

15     Security Council has established this Tribunal, and it is creating

16     history.  Whatever is said in these courtrooms will be creating

17     international law.

18             I acted as defence counsel in several hundred murder cases.  Some

19     were acquitted, some clients were found guilty.  But if I look back on my

20     life, I don't think I've done anything very significant in helping some

21     of these murderers, but this is something else.  And a very high level of

22     evidence is required here, a very high level of logical argument.  It's

23     not about a drunk driver, you know.

24             I called witnesses who were participants in the events, and

25     that's the whole point.  Bulatovic was the prime minister.  The minister

Page 27039

 1     of foreign affairs signed the agreement with Geremek, and I expected

 2     Geremek to appear here if anything that Mr. Jovanovic said was incorrect,

 3     not low-level observers of the United Nations.  They never probably even

 4     saw the agreement and yet they spoke about what was in it.  Now Geremek

 5     has been killed in a traffic accident.

 6             When I spoke under Rule 92 bis, I mentioned a few persons who I

 7     thought were indispensable as witnesses, and I still think so.  I'm

 8     grateful to the Court for selecting at least four.  I can enumerate

 9     another ten now that I feel would have to be called.  Two of them we

10     didn't manage to get here, but had we done so we would have had everyone

11     from Rambouillet, not just Mr. Petritsch, but also Hill and all the

12     others, and we would have known exactly what happened in Rambouillet

13     whether we like it or not.  The judgements of history does not depend on

14     personal interests.  My personal interests as counsel is to get my client

15     off; but when I come home, I know that my personal feelings sometimes

16     differ from my professional attitude.

17             All the participants should have been called here.  In my system,

18     when that is the conclusion reached by the court, it re-opens the case so

19     that all the necessary witnesses can be called.  There are no grounds for

20     this under the Rules, but I would be happy if you were to do this because

21     I've seen quite a few misunderstandings between the OTP and us.

22             Well, let me begin with the following:  We might have got Hill

23     and the others here had the OTP wanted to call them.  Had America wanted,

24     we could have had Hill here.  We could have had Ambassador Keller if

25     France had agreed.  I tried but he got married, and his wife wouldn't let

Page 27040

 1     him come here I assume.  Look at the notebook of General Obrad Stevanovic

 2     which has been mentioned here, only one page of it.  General Obrad

 3     Stevanovic, if it's true that he was in command of the PJP -- well, I

 4     don't know if the Prosecutor is -- well, it doesn't matter.  But why was

 5     General Stevanovic not brought here to explain this?  Later on, I'll deal

 6     with this, and you'll see some odd things in this notebook.

 7             I think, and this is my main objection, that for a reason I

 8     cannot fathom, there was not the will to call certain witnesses, whether

 9     out of fear, because the ones that were called did not say things the way

10     they are presented in the indictment.  Maybe they were afraid of that,

11     but it would have been better had we seen and heard them.  Because from

12     his notebook we could have established, you see it says here something

13     about the president and there's something before that and something after

14     that, and he could have explained in what way he took the notes, who

15     attended, who said what.  That's P1898.

16             Maybe I'm saying too often that this is a historical trial, but

17     let's look at the example of Georgia.  According to the same logic, as an

18     American diplomat so picturesquely said, the Russians are using a hammer,

19     and now this is going to be done in Georgia but not by NATO.  Now they

20     say that Saakashvili did have the right to enter his rebel provinces, but

21     my colleague, Mr. O'Sullivan, explained all this brilliantly.  And one of

22     the reasons for the low level of evidence we've seen here is to avoid

23     such comparisons.

24             Let me just quote Obrad Kesic, a witness not mentioned by the

25     OTP.  He's an America, a member of the Democratic party, and he testified

Page 27041

 1     to a conversation with President Bill Clinton, regardless of whether Bill

 2     Clinton was in his honest or dishonest phase at the time.  And Clinton

 3     said why Rambouillet hadn't been signed, that they had done everything so

 4     that Milosevic wouldn't sign.  They wanted to have air-strikes against

 5     Serbia.  And if you read Kesic properly, you can see that Holbrooke

 6     overstepped his authority in a way by signing the October Agreement, thus

 7     delaying the air-strikes until March, and his credibility has not been

 8     challenged by the Prosecutor.

 9             And, finally, I'm raising issues from the theory of criminal law.

10     You know that one of the major principles is the principle of directness.

11     The Court has to see and hear direct evidence.  There is a joke from

12     Roman times:  How did they teach law?  What's the difference between a

13     witness, an expert, and the court?  The witness saw but doesn't know; the

14     expert knows but didn't see; the court neither saw nor knows but has to

15     reach a judgement.  It's a joke from ancient Rome.  It's better for the

16     court to see and to know than to read inserts from one witness or

17     another.

18             I consider that evidence presented directly before this Court has

19     far greater weight than in another case, even if the witness

20     unfortunately died.  Look at these other cases, how did Prosecutor Nice

21     coerce witnesses into giving statements?  He made three or four attempts,

22     put leading questions during the examination-in-chief, which is

23     inadmissible but there was no Defence counsel.  Slobodan Milosevic was

24     not counsel, and it seems that he didn't really understand the law quite

25     well.  And the same happened with General Vasiljevic.  He was given

Page 27042

 1     documents to read which he had never seen before, so what can you

 2     conclude from that?  Things were suggested to him, and he was asked to

 3     read documents he knew nothing about.  Look at Obrad Stevanovic's

 4     notebook, he commented on what he read there, but he never saw the

 5     notebook or attended the meeting and then that became evidence.

 6             I welcome the decision of this Chamber on page 26772 when General

 7     Dimitrijevic was being heard, where the Chamber said they didn't want

 8     witnesses to comment on others' letters, the parties would do that, and

 9     the Chamber would reach its assessment of that.  And that is something I

10     agree with.

11             The following principle not being upheld here is in dubio pro

12     reo, which is the basis of human rights in criminal proceedings.  If in

13     doubt, then do what is in favour of the accused.  But the OTP is basing

14     its entire indictment on suspicions only based on this or that quotation

15     without any valid evidence, especially in the war period, 1999.

16             Then there's another principle, your Anglo-Saxon principle, in

17     support of this defence and that's beyond reasonable doubt, that's

18     narrower than in dubio pro reo.  If no one mentions that in 1999 Sainovic

19     was a member of some sort of Joint Command, let alone a commander, if

20     nobody observed that the chains of command of the army or the MUP

21     included someone called Sainovic, if witness Djakovic whose notes you

22     used as evidence explained that "ZK" was an internal term between him and

23     Pavkovic when there was civilians and this implies Pavkovic and Lukic in

24     1998, what is this if not reasonable doubt that Sainovic was not a member

25     nor was he in command of the Joint Command.  And it hasn't even been

Page 27043

 1     proved that the Joint Command existed in the way described in the

 2     indictment and in the war period when crimes were committed.  This may

 3     not be reasonable doubt, it's even worse than that.  It's lack of any

 4     sort of evidence, whether written or oral.

 5             Justice must win, you know.  You know that you were told here,

 6     "fiat iustitia, et pereat mundus," "let there be justice, even if all

 7     else perish."  That is the principle on which we live, not hearsay.  What

 8     did we hear in the Prosecutor's oral presentation of his closing

 9     arguments?  They added a few new terms to describe Sainovic which are not

10     present in their closing brief.  If you have no evidence, then you have

11     terms to use.  If no one saw something, well, add a few adjectives and it

12     may sound all right.

13             For the first time we hear Sainovic's role described in a way

14     that differs in essence from the way they're described in the indictment,

15     the pre-trial brief, and in the course of the trial.  For example, it

16     said that Sainovic's role was to exercise political control over -- on

17     page 26834, we never heard this before.  And on the same page, the

18     Prosecutor says that Sainovic was not directly involved in the chain of

19     command of the VJ and the MUP and then to describe his role uses the term

20     political control.  On page 26841, he says that Sainovic's role was the

21     role of a political director, political operative; two new terms again.

22             For the first time in his closing brief, the Prosecutor describes

23     Sainovic as a political director, as a person who exercises political

24     control over the forces of the SRJ, both the army and the MUP in Kosovo

25     and Metohija.  Let me remind you that in paragraph 46 of the indictment,

Page 27044

 1     it said that Sainovic as the person at the head of the Joint Command

 2     commanded the forces, but now it seems he didn't command them but rather

 3     exercised political control.  Characterizing Sainovic's role as that of a

 4     person exercising political control in my view affects the indictment

 5     against Sainovic essentially.  It's not the same thing.

 6             This description, as I said, is contained neither in the

 7     indictment nor in the pre-trial brief.  In these proceedings, I did not

 8     defend Sainovic from charges that he was a political director or a person

 9     exercising political control.  Had I seen that this was how the

10     Prosecutor saw him, I might have adduced other evidence in order to

11     establish who in Kosovo and Metohija exercised political control over the

12     security forces, on the basis of what regulations and with what results.

13     Whatever the SRJ or Serbia was like, it was a state; and in a state, it

14     is governments that exercise such control.  In the situation that

15     existed, the SRJ government controlled the army and the Government of

16     Serbia, and the minister of the interior exercised control over the MUP.

17             A slide was shown, for example, and this was something that was

18     new as well, the first slide.  What can we see there?  Sainovic as

19     someone who is superior to the Temporary Executive Council of Kosovo and

20     Metohija, and that was that.  No evidence adduced at all.  You have loads

21     and loads of transcripts without Sainovic appearing anywhere; it was

22     Andjelkovic.  There was a mix-up with the names.

23             Another statement that was made orally, the Prosecutor said that

24     Sainovic was Milosevic's political left hand for Kosovo.  The Prosecutor

25     claims that this was something that was generally well known.  There was

Page 27045

 1     evidence adduced that Sainovic was Milosevic's political confidant, but

 2     this is not something that the Defence knows or understands.  This was

 3     certainly not something that was commonly known as the Prosecutor claims.

 4             How does this tie-in with the fact that is beyond challenge?  I

 5     believe throughout 1999 during the war, we have evidence of a single

 6     encounter between Sainovic and Milosevic, and that was Vasiljevic's

 7     evidence before this Court, and there were other meetings with more

 8     people taking place, a confidant.  Had he been some such, he would have

 9     spent every single day with him; but during the actual bombing, Sainovic

10     wasn't there.  They didn't see each other, they didn't meet, and that's

11     why the Prosecutor dropped the charges about Milosevic ordering certain

12     things through Sainovic.

13             So what is the Prosecutor doing here?  They posit a fact that

14     they believe to be commonly known as they say.  They take that fact and

15     try to use it to create evidence instead of doing what they should do,

16     what any Prosecutor should do.  They should use commonly known facts and

17     not merely state them but prove them.  Once these facts have been proven,

18     only then can conclusions be drawn based on these same facts; that is how

19     it should be done.  If there is someone who exercises political control,

20     as the Prosecutor claims Sainovic did, then there must be some reports on

21     any control exercised, and just on whose behalf.  But we've seen no such

22     thing.  It's not in evidence, there was nothing in writing about that,

23     and nothing was orally presented to corroborate these claims.  I have not

24     seen a single report by Sainovic to Milosevic about the situation in

25     Kosovo or to anyone else for that matter.

Page 27046

 1             We have something that Sainovic said at the VSO meeting on the

 2     25th of December, 1998.  This is something that stems from his visit to a

 3     border post, which is a visit that occurred, as the Prosecutor mentioned,

 4     in the spring of 1998.  That was the only thing that I found where

 5     Sainovic said anything about that at all.

 6             The Prosecutor said something new during their closing argument.

 7     Now, Sainovic and the Joint Command were used by Pavkovic as a pretext

 8     for his actions, and Milosevic purportedly enlisted the assistance of

 9     Sainovic in order to achieve his goal, for Pavkovic to be in charge of

10     all the forces in Kosovo and Metohija.  This is at 26892.  Another

11     allegation that I'd never heard before.  This is yet a new creation by

12     the OTP.  The description of Sainovic's purported role -- this

13     description of Sainovic's purported role is something that in no way

14     follows from what the Prosecutor claims is their source, the evidence of

15     General Dimitrijevic.  He never says a word about Sainovic, especially

16     not as related to any potential relations between Pavkovic and Milosevic.

17     Again, this is merely an insinuation, yet another one, not to say a

18     fabrication.  There is nothing in evidence to show that Sainovic at any

19     time did anything like that or offer any support to Pavkovic at all.

20             I tried to decipher the OTP's need to come up with these

21     concocted terms and qualifiers, and the only distinction that I was able

22     to reach was the difference between Sainovic and the other accused in

23     terms of his political role and function in the SRJ.  He was one of the

24     five deputy presidents.  Carla del Ponte in her book says that one of

25     those would not be allowed to be indicted by the Americans, but this book

Page 27047

 1     was never used in this trial.  He was one of the five deputy presidents,

 2     but he can't place him at the scene, unless there is something new there,

 3     there is something new emerging.

 4             All right.  We have no evidence.  Let's try using qualifiers and

 5     adjectives:  Political director in charge of this, in charge of that,

 6     director of this, director of that, and so on and so forth.

 7             Finally, it must be clear that any Trial Chamber could only reach

 8     a verdict based on facts in evidence.  As God reigns in heaven, the

 9     Trial Chamber must reach a verdict on oath, but God must not submit any

10     statement of reasons to anyone.  And this is something else we heard from

11     the OTP; they are asking the Chamber to do something.  They say that

12     there shouldn't have been any trial at all in the first place or any

13     evidence for that matter.  What we needed to do was accept any written

14     statements that already existed at the time the trial began.

15             So what have I spent the last two years doing?  Why have I spent

16     the last two years doing?  Why have I been preparing for all of this if

17     it's all no matter at all?  We have these witness or those witnesses, we

18     have the indictment read out, then a witness appears, and that takes care

19     of a problem.  Unfortunately, that's not a way we can do this.  The

20     Prosecutor asks you to use certain records, certain transcripts, certain

21     documents which they then manipulate, and I'm about to show just how.

22     But when the persons who actually produced these documents and the words

23     contained in these documents are presented here and they say directly

24     that what this was about, and the Prosecutor simply comes up with

25     something else, what they are telling us now is simply not they way it

Page 27048

 1     was.  It is the way I say it was.  That's what they are telling us.

 2             You have General Dimitrijevic, General Djakovic, and this applies

 3     to both of these cases.  Why would we need ten different explanations for

 4     this drunk driver.  Let's take Djakovic and the problem is solved.  That

 5     explains the Joint Command, I suppose, but we have no serious political

 6     analysis being performed in relation to the clashes in Kosovo and

 7     Metohija.  We have Merovci's assessments and he is nothing but a mere

 8     body-guard or another interested party.  Then Milosevic is being quoted,

 9     No one must beat you; and then the notorious Sana [phoen] memorandum

10     which is not in evidence in this trial.  It's not at memorandum either,

11     it's a document that was prepared, and it's not notorious to begin with,

12     but I suppose that none of that really matters, that the vision to keep

13     Kosovo within Serbia is cited as a serious violation.  But this is

14     something that was being done again by this new government, and each

15     government to come will probably be adamant about this just as well.  I

16     suppose such time will come as well.

17             The change to the ethnic make-up, that's another thing that was

18     mentioned.  How is it possible to make a serious assertion of that nature

19     to expel 800.000 people and just wait leaving these people outside?

20     Because that is the only way to change the ethnic make-up, but they keep

21     coming back, all too often in fact.  Well, are the Serbs supposed to

22     march straight into Washington for this to be achieved probably led by

23     the Joint Command and Sainovic?  Do you think we are really that insane

24     in our country of Serbia to expect to achieve a victory like that?  We

25     just lay low waiting for the bombs to stop falling.  We had a grand total

Page 27049

 1     of three electrical transformers that were in full working order in all

 2     of Serbia, and witness Milanovic said that.  If they'd hit one of those

 3     three, all of our children would have ended up dead.

 4             A historical approach, a serious one, would show that the

 5     Albanians wanted to leave Serbia and they may have been right for all I

 6     know, or maybe they weren't right but for a hundred years.  Certainly

 7     not.

 8             Look at Rugova, now he wants a republic.  He wants to join

 9     Albania, he wants independence, as Thaqi does.  It's all the same really,

10     but that's what Serbia has been asking for, for a hundred years, way

11     before Milosevic appeared, and it still wants all these same things.  It

12     also wants its own government administration.  We've always wanted

13     independence for ourselves.  That's what I'm telling you.  You see, this

14     is simply not a right, this is simply not appropriate.  Serbia is being

15     accused because a company was doing drills near Podujevo.  At the same

16     time, there was NATO involved, and this is something that a witness told

17     us to gather intelligence, that Kosovo's independence is being promised.

18     And this is something that Mr. O'Sullivan raised, that members of the

19     Kosovo Liberation Army are being bank-rolled, they are being given

20     weapons.

21             Yes, perhaps I should slow down.  I apologise to the

22     interpreters.

23             Serbia is being accused because there was a company who was doing

24     drills around Podujevo.  At the same time, there was a massive build-up

25     of NATO forces.  It was making operative use of the intelligence.  They

Page 27050

 1     were promising independence to the Albanians, they were training and

 2     bank-rolling members of the KLA.  The NATO brigade arrives in Skopje, it

 3     arrives at the border, ship carriers entering the Adriatic sea.  Small

 4     units are being brought in battalion size in order to defend in

 5     March 1999 on the eve of the war itself, and this is something that is

 6     seen as a violation of the agreement and then the war begins.  What were

 7     we supposed to do, leave all our army back in barracks and once the

 8     bombing began leave all our children to die?  We knew the war would

 9     start.  We could see that for ourselves.  We'd known that since October

10     1998 because threats were being made.

11             This deployment by the VJ that occurred at the time proved to be

12     the right one, because despite the massive scale of the bombing and the

13     all-out attack by the KLA and their newly formed brigades, the land

14     incursions were prevented from Albania and from elsewhere into Serbia,

15     and these operations were foiled.  To ignore these facts and to say the

16     objective was to expel the Albanian population is simply something that

17     is a non sequitur.  Is this not sufficiently explained by the actions at

18     Drenica and Malisevo?  It is simply untrue to say that actions were being

19     planned on the ground simply because the Prosecutor says there were the

20     greatest concentration of the Albanian population in those areas.

21             It is untrue that actions were being planned in that area because

22     that was the area with the greatest concentration of the Albanian

23     population.  This area contained hardly 15 per cent of the Albanian

24     population which was a minority.  And this is simply untrue, it's

25     inaccurate, this is a case of manipulation.  If you look at that area,

Page 27051

 1     and this is obvious if you look at KLA documents, we had a KLA formation

 2     in that document and also foreigners from the Kosovo Verification

 3     Mission, and they were visiting their units there.

 4             Then we have Zyrapi's evidence, and then Defence witnesses

 5     brigade commanders Delic and Savic.  If we take that evidence, we see

 6     what the extent of the clashes was and the extent of the area where these

 7     clashes were unfolding to VJ brigades and the KLA on the other side.

 8     Only then can a conclusion be drawn as to why the civilians were running

 9     and, the civilians running included half the Serbian population in

10     Kosovo.  We had Sandra Mitchell's evidence to show that.  So the ethnic

11     balance remained the same as before because 700.000, the Albanians before

12     and the Serbs before, where again you have the same ratio.  So what was

13     achieved; the only difference being the Albanians came back, the Serbs

14     never did.  We still have over 100.000 Serbs living elsewhere because

15     they have no homes to go back to.

16             We have all sorts of random theories being put forward and then

17     being transformed into facts.  Sainovic at the head of the ZK.  He

18     approved all the decisions, he approved all the actions, and then the VJ

19     commanders and the MUP commanders were advising him.  How is it possible

20     for something like this to come up again?

21             We're all trying to show that Sainovic was positive in the way he

22     discussed these matters as regarded the withdraw all the forces, the

23     legality, the order, the work, his insistence that all crimes be punished

24     and investigated.  These are simple incriminations.  What was he supposed

25     to do?  Just keep his mouth shut?  He wasn't there for that.  He was the

Page 27052

 1     deputy prime minister.  He had to say something and he said all the right

 2     things, for the crimes to be punished, for the troops to be withdrawn

 3     pursuant to the agreement that was reached.

 4             Now, all of a sudden the Prosecutor is twisting all these things

 5     as something that is not in favor of Sainovic.  They are using this as an

 6     incrimination against Sainovic, so I can't help but wonder -- well, I may

 7     be going a little beyond my brief right now.  During the sentencing part

 8     of the closing arguments, they talked about aggravating circumstances.

 9             Is it possible for a group of six people not to have a single

10     mitigating circumstance in their favor?  Okay, so they say Sainovic was

11     guilty in relation to the period in the indictment.  Is it so difficult

12     to say that by Rambouillet he was fighting for peace and then he might as

13     well killed himself later on, he might have resigned, and then we could

14     see what happened, but at least give him his due.  You've got to hand it

15     to him.  He made sure that an area, God knows where, I no longer remember

16     where, now had electricity.  So this turns out to be another crime that

17     he committed.  Is that possible?

18             Coordination between the MUP and the VJ.  According to the

19     Prosecutor, this is something that is foul.  Mr. Naumann said that this

20     was something that had to exist during a time of war because of friendly

21     fire and for all sorts of other reasons at all.  Now this seems to be

22     tantamount to coordinating crimes, the examples of Suva Reka, Mala Krusa,

23     Izbica, Milosh Giliq street in Djakovica are given.  Sainovic is the

24     deputy prime minister of the federal government, he is also the president

25     of the Kosovo cooperation commission.  This man perhaps knows something

Page 27053

 1     that any state official knew.  All of us knew what was going on in

 2     general terms in Kosovo.  Now suddenly it seems that this was just

 3     because he was receiving instructions from someone.  There were a total

 4     of 15 actions carried out by the VJ and the MUP under the heading Joint

 5     Command, yet there were over 500 individual clashes.  This is not the

 6     entire war as the Prosecutor claims, 500 individual clashes, which is

 7     something that General Lazarevic confirmed as well.

 8             Another fact that is neglected is the fact that internal

 9     relations in the VJ, on the one hand, and the MUP on the other,

10     disciplinary action, criminal action being taken against members of the

11     human resources.  This isn't something that was being coordinated.

12     That's never mentioned at all.  All they are mentioning are some actions

13     but this is of vital importance in terms of Sainovic's responsibility as

14     seen by the Prosecutor.  He should have all of that, he should have

15     people coordinating his personnel policies, he should have people

16     coordinating disciplinary actions that were being taken.

17             In their final brief, they see the Joint Command in 1999 as

18     comprising four persons:  Pavkovic, Lukic, Lazarevic, and Sainovic.

19     That's what the Prosecutor is telling us in his final brief.  Now in his

20     closing arguments, we see that Sainovic did not necessarily have to be in

21     Kosovo.  It wasn't us who said in our brief that Sainovic had been in Bor

22     throughout, as you suggest.  What I said was that among other things, he

23     spent some time both in Bor and in Belgrade and in Ilidza -- or in Vinca

24     and in Vares during the war; but how, then, could he have exercised

25     command over this Joint Command from such a great distance.  If you try

Page 27054

 1     to use simple logic, this cannot stand.

 2             In their closing argument, the OTP say that the joint criminal

 3     plan came into existence at the latest by October 1998, and they relate

 4     this to something that Milosevic told to Naumann:  "Next spring, there

 5     will be a final showdown with the Albanians like the one in Drenica in

 6     1945 and 1946."  First of all, the witness has no clue what occurred at

 7     Drenica, and this is something that the witness shared with the

 8     Trial Chamber with no hesitation.  Defence witness Veljko Odalovic

 9     explained that this was a showdown which [indiscernible] as Albanians.

10             They were armed Albanians, members of the -- of Hitler's

11     coalition.  What can this possibly have to do with forced removal of the

12     Albanian population or any expulsion or part of any plan such as seen by

13     the OTP?  This was a case where a gang was being liquidated, done away

14     with.  It's not people or civilians being expelled or driven out.

15             The Prosecution then starts to develop a thesis, but it seems to

16     have given up on that already, according to which Milosevic and the

17     others wanted to see the bombing of Serbia to be able to put their plan

18     into effect; and so in Rambouillet what happened happened.  Now, how can

19     anybody believe that, that somebody would be ready to be in favour of

20     having a whole country bombed by NATO?  Subotica was bombed thousands of

21     kilometres away from NATO.  They hit where they could, not only Kosovo

22     was hit.

23             What person would enter into a conflict with the largest

24     coalition that exists in the world today, a conflict and clash which they

25     know full well they cannot win?  Now, I accept what my learned colleague

Page 27055

 1     and friend Mr. O'Sullivan said and the way he explained the situation in

 2     Rambouillet and who orchestrated Rambouillet, but I'd like to add the

 3     testimony of Witness Kesic as well to that.

 4             Now, while we're on the subject of Rambouillet, I have to say

 5     something because I am Sainovic's Defence counsel.  I have to say

 6     something about the person that Sainovic is and his role in Rambouillet,

 7     and I would like to rely on everybody who was called as a witness,

 8     Petritsch, for example, and all the others.  Did their words not show the

 9     operative quality of Sainovic, his desire for peace for example?  How

10     many times did he go in and out of Rambouillet?  Whenever he needed to

11     says the Prosecutor, he went to see Milosevic.  I never saw that.  The

12     witnesses spoke about one time he left to consult Milosevic, but here we

13     suddenly have multiple times.

14             And when they say that he left, it was to save the negotiations,

15     they say.  Well, is that to be held against him?  Had he have refused to

16     go, that would have seemed to have been a quality in their mind.  Is it

17     not quite clear that the order to bomb was given in October 1998?  What

18     was it called, an act or whatever, an order?  And Holbrooke's agreement,

19     the Milosevic-Holbrooke Agreement, prevented that.  That's not being

20     challenged, not even the Prosecutor is challenging that, the act or the

21     order.  Important sections of the Army of Yugoslavia were in Kosovo and

22     Metohija at the time.  Many of them, it would have been much easier to

23     engage in persecution then; and if they wanted bombs, well, Holbrooke

24     should have been rejected then.  Certain forces according to Kesic wanted

25     to do that, and they criticised him for it.  Then it would have been

Page 27056

 1     more -- it would have been easier to persecute people, but I never

 2     understood how the Prosecutor explains and interprets the plan and how

 3     you could prevent these people from coming back.  That's what I'd like to

 4     know, unless we were victorious over NATO and beat NATO, and nobody in

 5     their right mind can think that that could be the case.

 6             But anyway, the bombing came to an end, peace in Kumanovo came,

 7     all this was over, and the resolution guaranteed that Kosovo was a

 8     component part of Yugoslavia, and the United Nations entered Kosovo and

 9     not as was demanded in Rambouillet, that we should sign up for an

10     occupation of the whole of Yugoslavia by NATO.  Jovanovic, Witness

11     Jovanovic, spoke about all these details and the referendum which meant

12     the independence of Kosovo as well.

13             Let me summarize.  How did the war begin in the first place?

14     Holbrooke arrived and set an ultimatum.  He said, "Sign Rambouillet,"

15     that would mean NATO's occupation, the referendum for Kosovo's

16     independence, "or we're going to bomb you."  And that was the reason for

17     the bombing and the war, and this was explained by witness Kesic.  And we

18     know how the war ended, with a Security Council Resolution 1244, the

19     sovereignty of FRY guaranteed.  There's no occupation of the federal

20     state, and the forces guarantee security to the Serbs.  Now, how far that

21     was put into practice is another matter, and it is essential to mention

22     another detail that I wish you to bear in mind here.  It is Sainovic's

23     conversation with Rugova, and this is mentioned here, too, and the

24     agreement they reached, what Sainovic told him:  One, an end to the

25     bombing; and, two, the return of refugees.  The Serb refugees never

Page 27057

 1     returned, and the cease-fire was accepted, and that's what happened.

 2             This agreement with Holbrooke was respected; it was adhered to.

 3     You heard that here from the NATO representative and from other

 4     observers.  Now, why would it have been respected if we had a criminal

 5     enterprise of any kind in mind?  One assertion is being made here and

 6     asked why people didn't flee from Belgrade just like the Albanians fled

 7     from Kosovo.  You can't compare the two; it's impossible to compare the

 8     two if you're serious.

 9             In Belgrade, for example, NATO, General Naumann, so on, it was by

10     mistake that the Chinese embassy was hit.  There were some mistakes, but

11     they said they selected targets and tried to avoid civilian casualties.

12     It's not that people didn't flee from Belgrade.  People tried to take

13     their wives and children to safety.  Some politicians fled, so that did

14     exist.  But most people stayed put because there wasn't that much reason

15     for them to flee.  They expected the bombing to end every day, and they

16     kept telling us over television, well, it's just a matter of a few days.

17     Everything functioned, traffic functioned, there were power cuts, and so

18     on, but electricity would return.  And there was no fighting in the

19     streets, the KLA hadn't entered Belgrade for there to be shooting in

20     Terazije square, and so on.  That's when the people fled, but like this

21     they didn't.

22             You know, this brings me to a hypothetical question, and I agree

23     with Mr. Hannis that we shouldn't use any hypotheticals here, but

24     envisage the situation.  Had NATO decided to bomb Belgrade alone, only

25     Belgrade, would 800.000 Albanians have fled from Kosovo?  Why would they

Page 27058

 1     have?  That's the answer to it.  There you have it.  Why would they have

 2     fled from Kosovo if they targeted Subotica, Belgrade, Novi Sad, et

 3     cetera?  That's the best evidence and proof that it was because of the

 4     NATO bombing that they fled on any grounds.

 5             I have to respond to something the Prosecutor said in his

 6     question as to why we make a difference in our closing arguments,

 7     Mr. Stamp asked this, between 1998 and 1999 when it's the same thing.

 8     Well, the difference is in one point, and that is it's in the war.  In

 9     1999 we had war, in 1998 we had peace.  NATO is the difference.

10             So if we're talking about the Joint Command, whatever that means,

11     in 1998 you have notes, you have meetings; in 1999 you have nothing, none

12     of that, because none of that existed and Sainovic wasn't there at all.

13     And that's the difference, that's the difference that I'd like to

14     underline.  There's no evidence, no proof, that civilians were present in

15     the chain of command of both the army and the MUP, and that is why

16     Sainovic was dislocated from Kosovo as the fourth member, the only

17     civilian, and then I suppose commanded by remote control or whatever.

18             The Prosecutor relies on P1317 exhibit.  I think we've analysed

19     that sufficiently.  It's the one where we say that the Joint Command was

20     thought up or established, whichever you like, by Slobodan Milosevic, and

21     that's where the Prosecutor stops.  However, we can go on discussing that

22     document.  It talks about handing over military documents to the

23     secretary of the cabinet of Slobodan Milosevic, and that man's name was

24     Goran Milinovic.  And he is at liberty today walking around Belgrade; and

25     as far as I understand it, no one ever asked him about that, at least not

Page 27059

 1     by the OTP he wasn't asked about that.  I did ask him.

 2             Anyway, the documents were handed over at the time to the

 3     military cabinet of Slobodan Milosevic and then says when in October the

 4     Joint Command ceased.  So this document says that it came into being but

 5     also ceased to exist at that time as well.

 6             A document is a document.  If you're going to use it, then you

 7     must use it truthfully.  We're talking about October 1998, because it is

 8     in that document, at the end of that document, that it says that the

 9     Joint Command ceased to exist, in October 1998; and then the military

10     documents were handed over to the secretary of the cabinet of Milosevic,

11     and his name is Goran Milinovic.

12             Now, the next thing I would say to say this:  The letter by

13     Perisic is being treated in a completely erroneous manner when it comes

14     to Sainovic.  The Prosecutor fails to remember that we're talking about

15     the word "attempt" here.  At that time, according to the position taken

16     by this Prosecutor, Minic was at the head of the Joint Command, but look

17     at the date.  Evidence shows that the very next day after this letter,

18     Perisic issued an order and established a forward command post of the

19     3rd Army in Pristina which controlled and guided the work of the Pristina

20     Corps.  After that, Perisic -- or rather, in addition to that, Perisic on

21     a number of occasions sent inspectors out to Kosovo, and he went to

22     Kosovo and Metohija himself.  All this after the letter without noticing

23     anything untoward.  It was normal that Sainovic was in command of the

24     troops.  Perisic stayed on for a few months as the head of the General

25     Staff, Chief of the General Staff; after the letter, that is.

Page 27060

 1             Yes.  I want to make a correction here.  I don't think I said

 2     that.  Perisic did not notice anything untoward, anything unnormal, and

 3     it would be not normal if Sainovic were to be in command.

 4             So we forget that after July, Perisic for several months to come

 5     was at the head of the General Staff, and nowhere did I see him mention

 6     Sainovic at all or involvement in the troops.  And, finally, the Defence

 7     would like to stress that the Prosecution, except for the letter, did not

 8     wish to call Perisic as a witness.  It said it didn't believe him.

 9     Geoffrey Nice said even worse things:  "Why would I believe him, why

10     would the Trial Chamber believe him, and why would we believe in the good

11     intentions of the writer of the letter?"

12             Next, the Prosecutor, once again, says that Sainovic's words at

13     two meetings of the MUP were some sort of instructions or orders.  All

14     the witnesses that took part in the meeting - and we heard them

15     all - state quite the reverse.  So we cannot conclude that Sainovic is

16     ordering anything, issuing any kind of orders, and we can see that he did

17     attend both meetings for a brief period of time.  He didn't even attend

18     the meetings in its entirety, and he was the vice-president of the

19     government not as a commander of a Joint Command or a political director

20     or goodness knows what else.

21             They say he said that the refugees should be registered, and that

22     is taken to be an order.  But if you look at the discussion that was held

23     after his departure, you will see that the chiefs of SUP are reporting on

24     how many people they'd already registered.  So this was ordered earlier

25     on by someone else and he just mentioned it.  Vice-presidents receive

Page 27061

 1     instructions as to what they're going to say.  He came as the vice

 2     premier, the vice premier of the government, to attend the meeting.

 3             And when the Jezerce action is mentioned, the same thing holds

 4     true.  When Sainovic talks about this, we can see that the action is

 5     already underway and had been ordered well before; whereas, from what the

 6     Prosecutor says, it would appear that he ordered it.

 7             And quoting Vasiljevic is very often incorrect.  Vasiljevic

 8     before this Trial Chamber never -- never in this court did Vasiljevic say

 9     that Sainovic was a member of any Joint Command.  And when he speaks

10     about the meeting held on the 1st of June, if you listen carefully to

11     what he said, he said I don't know what Sainovic was doing over there.

12     So, regardless, you now have two statements; two statements have been

13     made.

14             I expressed the concern, although I can't claim this for sure,

15     that nonetheless Pavkovic's and Lukic's interviews will be used against

16     the other accused in one way or another, because they are mentioned

17     within the context of Sainovic by Mr. Hannis.  I hope that this will not

18     pass -- hold water with the Trial Chamber.

19             And now something with regard to the founding and meetings of

20     the ZK.  I say they are my concerns, but I don't say that that's what's

21     going to happen.

22             If we look at the Prosecution brief and our pet subject, the

23     notes which we call the meeting of the Joint Command, then the Prosecutor

24     quotes some ten sentences, about a dozen or ten - if I have made a

25     mistake I apologise - which allegedly Sainovic says according to

Page 27062

 1     Djakovic's notes.  Now, look at one precise fact, you have 69 meetings in

 2     all.  At each of them five or six people take part in the discussion,

 3     which means 400 various pieces of discussion, and Sainovic takes part in

 4     ten.  How could I put this?  I don't know how to tell you this.  Had

 5     Sainovic been in command and had there been a command of any kind, then

 6     he would have had to have taken the floor for a great length of time.  He

 7     would have had to issue orders, make conclusions, make observations.  He

 8     would be the central personage, and that could have been seen from the

 9     notes, who issues instructions, orders, gives permission, and so on;

10     whereas, he wasn't even able to get a helicopter from General Samardzic.

11     So there you have it.

12             And from sentences pulled out of context - and I repeat witness

13     Djakovic explains just how valid his notes are; I don't need to remind

14     you of that - then the conclusions are made that Sainovic was in command

15     of the whole army and the MUP and, of course, throughout the whole time.

16             Now, there's another interesting point.  Djakovic confirmed that

17     he kept the notes only when he was there; when he wasn't there, nobody

18     kept any notes at all.  So what kind of command is this I ask you?

19     Whereas, in fact, this is how the voids between the meetings are being

20     explained, the spaces between one and another.  Djakovic was probably

21     engaged elsewhere, the meetings were held in his absence, and nobody took

22     notes.  Does that sound to you like a valid command?  And that's how

23     these gaps are explained.

24             You did not present a single document where Sainovic is mentioned

25     as a member of any Joint Command, let alone that he was the commander of

Page 27063

 1     a Joint Command.  Wherever mention is made of the vice premier or

 2     president of the commission for cooperation with the OSCE, Djakovic was

 3     brought in despite the Prosecutor, if I can put it that way.  And he

 4     explained everything to us; and, of course, this cannot be found in

 5     anything the Prosecutor has presented to us.  As far as the Prosecution

 6     is concerned, it never happened.

 7             Had he succeeded to bring Philip Coo as an independent

 8     investigator or analyst, whereas, he was an ordinary investigator of the

 9     OTP interviewing everyone - Vasiljevic, Lazarevic, Lukic - and putting in

10     the Joint Command Sainovic everywhere, then the final brief would have

11     been just Philip Coo because that's all they could have referred to,

12     Philip Coo; but luckily they weren't successful in achieving that because

13     he wasn't an independent expert, and, indeed, he was no expert at all.

14             Did it escape your attention that everybody said that those

15     meetings were held always after Pavkovic received orders from the

16     generals?  And if you believe Djakovic, then the coordination of the army

17     and the MUP had been completed.  Djakovic said that here.  So who was in

18     command then and who was in command of what?  Because everything had been

19     completed, everything was already over.

20             So Pavkovic, after he received an order from Simic or Samardzic,

21     met up with Lukic; they coordinated among themselves, among the army and

22     the MUP; and only after that was that meeting held, and there were no

23     further orders to be issued at that meeting because all orders had been

24     issued already, and that's what Djakovic told you.

25             Let's mention General Dimitrijevic's testimony who said that it

Page 27064

 1     was ridiculous to think that Sainovic was in command of the army, and I

 2     said it was sad because that's why Sainovic was here.  What bothers me is

 3     that Defence witnesses are said to be not telling the truth.  It's very

 4     hard for me to utter the word "lie."  These people were never heard as

 5     suspects or anything else.  With most of them, the OTP didn't even want

 6     to interview them, but let's look at the quality of the OTP witnesses.

 7     Who said something nice about Ljubinko Cvetic?  We heard that he was not

 8     a good man, that he was a man who didn't do good work.  What about Tanic?

 9     That state was attacking the state that he was a citizen of.  Is that a

10     moral man?

11             As for General Vasiljevic, he was interviewed by Philip Coo as a

12     suspect and was later promoted to the status of witness because probably

13     his answers suited someone, but even he did not claim before this Court

14     that Sainovic was either a member or the commander of the Joint Command.

15     Let's look at the statement he gave to the Defence and his testimony

16     before the Court.

17             And, finally, I have to ask myself, if the Defence witnesses were

18     not telling the truth, I have not read anything about the Court

19     witnesses, I haven't heard anything about them.  Does that apply to them

20     too?

21             Allow me, Mr. President, at this point to move on to the more

22     boring part and read you the paragraphs where the Prosecutor misquoted

23     what the documents actually say.  Paragraph 21, the Prosecutor says that

24     the basis of the Serbian nationalist policy was that the Serbs must live

25     on territory controlled by the Serbs or else they will be exposed to

Page 27065

 1     discrimination, prosecution, and genocide.  I cannot find any source for

 2     this claim.  Paragraph 22, events in Serbia in the spring of 1987 are

 3     described based on statements by Merovci and Abrahams.  The Prosecutor is

 4     simplifying all the important historical events and presenting them

 5     through the statements of witnesses who are biassed or who are not

 6     sufficiently conversant with the facts.  Let us bring in a real expert

 7     and support this with proper documents and witnesses because it's a large

 8     claim.

 9             Paragraph 24, he says that Milosevic was in power for eight years

10     and that it was imperative that he retain Serb control over Kosovo, and

11     this is quoting Merovci.  This is again a sad simplification of

12     historical events, and it constitutes ignoring the reality of social and

13     political affairs at the time.  Kosovo was part of the sovereign

14     territory of the Republic of Serbia, and the issue of control over part

15     of the territory of the country was not a result of criminal intent, it

16     was a constitutional obligation.  How would you apply this to Georgia?

17     Is Saakashvili guilty for wanting to keep his own territory, and are the

18     Russians right then to fight him, or does this apply only to our people?

19             The Prosecutor says, in paragraph 25, that at a meeting with

20     Phillips, Sainovic said that the Albanian population did not wish to

21     co-exist with Serbs to whom Kosovo belonged.  The Prosecutor pulled this

22     out of context.  Sainovic was speaking in the context of his, Sainovic's,

23     dissatisfaction with the terrorist activities in which part of the

24     Albanian population was participating.  In his notebook, 2D17 - and I ask

25     the Court to pay attention to it - Phillips noticed that at a meeting on

Page 27066

 1     the 24th of November, 1998, Sainovic when asked by Walker why fewer and

 2     fewer Albanians wanted to live in Yugoslavia replied that the majority of

 3     the population in Kosovo and Metohija believed that there could be a

 4     political solution to the crisis.  Phillips confirmed this in his

 5     testimony before this court.  Look at transcript page 11879, and this has

 6     nothing to do with what the Prosecutor is claiming.

 7             Paragraph 26, the Prosecutor states that Milosevic ordered the

 8     establishing of the Joint Command, referring to an unsigned letter which

 9     the federal Ministry of Justice sent to the Office of the Prosecutor on

10     the 12th of July, 2002.  That's the document I've already mentioned,

11     P1317.  First of all, the letter isn't signed.  There's no source quoted,

12     no source mentioned, for its claims.  Only claims are put forward

13     according to the knowledge of the military organs.  It doesn't say what

14     organs or on what basis.  The Prosecutor is using this document to show

15     when and where the Joint Command came into being, but he doesn't use the

16     other part of the document, only several lines, which says that the

17     Federal Ministry of Justice informed them that the Joint Command ceased

18     to exist in late 1998.  There's no other evidence, so suddenly this

19     correspondence from 2002 is put forward but only in part.

20             And, again, there is mention here that military documents were

21     handed over to the secretary of the office, and this is the best proof

22     that there is no longer any command because if there are no documents it

23     means it's over.  Goran Milinovic, who is now undergoing criminal

24     proceedings in Belgrade before the fourth municipal court as stated by

25     witness Kostic who was heard here, but he told me this unfortunately

Page 27067

 1     after the trial.  It's easy to check this in connection with these

 2     documents.  I don't know what his defence is, I really don't.  But it's

 3     very important to say here, and it's being ignored by the Prosecutor,

 4     that General Dimitrijevic explained in his testimony how this letter came

 5     into being.  This is very interesting because Dimitrijevic denies the

 6     first half of the letter.

 7             In this same paragraph, 26, the Prosecutor states the following:

 8     The Joint Command had no other authority in law than what Milosevic

 9     transferred to it.  But no source is adduced for this claim.  It's

10     fabricated, it's unprofessional, and its aim is to mislead the Chamber as

11     if this was definitely the case.

12             Paragraph 28, although the Serbs were a majority in Kosovo and

13     Metohija, it says, many Serbs considered Kosovo and Metohija to be an

14     integral part of Serbia.  Well, it was part of Serbia, it wasn't many

15     Serbs, all Serbs considered it to be part of Serbia because it was part

16     of Serbia --

17             THE INTERPRETER:  Interpreter's correction:  The Serbs were a

18     minority not a majority in Kosovo.

19             MR. FILA: [Interpretation] Even in the Security Council

20     resolution this is confirmed, and that's resolution 1244, although it

21     wasn't respected by America.

22             Paragraph 29, the memorandum of the Serbian academy of arts and

23     sciences of 1986 is mentioned, and genocide over Serbs is mentioned.  The

24     memorandum was never completed, and it wasn't presented as evidence by

25     the Prosecutor in this case so that you might see what is in it.  And you

Page 27068

 1     can see that Abrahams didn't read it either, he didn't read that

 2     document, that's evident.  This is all improvised, this is all

 3     superficial.  It's copied from article 63  -- or rather, count 63.

 4             Paragraph 30, Baton Haxhiu is used as a source for the claim that

 5     Milosevic was used in Kosovo and Metohija in order to gain power.

 6             The previous statement is copied from paragraph 63 of the

 7     Prosecution pre-trial brief.

 8             This Baton Haxhiu was found guilty of contempt by this Court, and

 9     this shows you the quality of the witnesses called here.

10             Paragraph 33, it says that the amendments to the Constitution of

11     Serbia were adopted with the help of tanks, and the source of this claim

12     is Rugova who was neither a delegate in the Assembly nor was he present

13     at the session.  So how can we ask him where he got this?  And this all

14     shows the weight of the evidence and the value of this evidence.

15             Paragraph 36 says that Milosevic used his majority of the SPS

16     Assembly in order to enact legislation and that he relied on selected

17     loyal members of the SPS such as Sainovic, but again no source is given

18     for this.  Where did they get this?  I don't know.  They weren't even

19     members of the Assembly, so how did he rely on Sainovic in the Serbian

20     Assembly?  I have no idea.

21             Paragraph 43, this is again paragraph 73 from the pre-trial

22     brief.  Numerous witnesses spoke about the SPS session of the 16th --

23     paragraph 42, let me correct myself, not 43.

24             Many witnesses spoke about the session of the 16th of June, 1998,

25     and a sentence is extracted from the discussion there, but Sainovic never

Page 27069

 1     took the floor.

 2             Paragraph 43, again there's mention of Drenica, and the Veljko

 3     Odalovic's testimony is ignored completely.  Naumann is mentioned, who

 4     admitted he didn't know what this was about and that he didn't manage to

 5     find it in the literature.

 6             Paragraph 48, this concerns orders issued by the Joint Command in

 7     relation to the non-Albanian armed population.  The OTP claims that they

 8     provided support to the army forces and the MUP.  We've heard several

 9     dozen testimonies here about the way in which this claim is found in the

10     Joint Command orders.  From General Lazarevic onwards, everyone explained

11     that this was somehow automatic and that it simply didn't happen.

12             Paragraph 57, the Prosecutor fails to refer to key documents on

13     the basis of which the anti-terrorist action began, and these are the

14     documents of General Perisic, directive and other orders.  And as far as

15     I can understand, he's not part of any joint criminal enterprise and yet

16     it is based on his orders and directives that this happened.

17             Paragraph 73, again the notebook is used but a part of it not

18     written by Djakovic.  And I abide by all the objections that we don't

19     know who the author is and so on and so forth, but let's see how this is

20     quoted.  The words on page 162 of the English version:  "When we

21     withdraw, we have to be careful, we have to take care that nobody finds

22     parts of certain detachments who have not withdrawn.  There must be no

23     discrepancy with the information already issued."

24             So this is being interpreted as an attempt to conceal something;

25     although, there is no mention of concealing parts of detachments nor is

Page 27070

 1     Sainovic doing this.  Of course, the Prosecutor explains these words as

 2     Sainovic's order that parts of the detachments should hide; although,

 3     nowhere in the conversation mentioned in this notebook is there any

 4     mention of hiding parts of the detachments.  Although all the other

 5     evidence in the case, including KDOM reports, NATO communiques, and

 6     Madeleine Albright's testimony, all this shows that the withdrawal was

 7     actually carried out.  So Sainovic's words were quite the opposite of

 8     what the Prosecutor interprets them to be.

 9             Paragraph 74, the Prosecutor states that Sainovic was the only

10     person authorised to permit the inspection of barracks because this was

11     not in agreement with the Jovanovic-Geremek Agreement.  Jovanovic

12     confirmed this; and as I said, nobody asked Geremek whether this was true

13     or not.  So the agreement is being explained by whoever wants to but not

14     those who drew it up.

15             Loncar testified before the Court that the federal government

16     discussed the decision and that the decision of the federal government

17     was not to allow inspection of the barracks because it was not in

18     compliance with the agreement on the KVM, and that's on page 7601.

19             Paragraph 81, the Prosecutor speaks of the concern of

20     high-ranking VJ officers about the actions of the ZK in connection with

21     the VJ; and Perisic's letter is quoted, P717, but Perisic nowhere

22     mentions the Joint Command --

23             THE INTERPRETER:  Interpreter's correction:  Joint Command, not

24     ZK.

25             MR. FILA: [Interpretation] The most that is said is a civilian

Page 27071

 1     part of the staff, but there is an operative inter-ministerial staff

 2     where Perisic did attend the meetings as did civilians, if one can trust

 3     the minutes.  So how the Prosecutor concluded that this is the Joint

 4     Command is not clear; and other staffs are also mentioned, not just the

 5     Joint Command.

 6             Paragraph 107, from the instruction for the defence of built-up

 7     areas, it has the Joint Command in the title.  And it says in the

 8     instructions that this is temporary and that the MUP was combining the

 9     activities.  It doesn't say anywhere that these units were being

10     subordinated to the MUP as the Prosecutor claims.  Besides this, in the

11     file, there is a testimony explaining the provenance of this document,

12     P1065, which is entitled:  Joint Command, instruction for the defence of

13     settled areas, built-up areas.  Djakovic testified that the document was

14     created by an operative organ; that's transcript page 26416.

15             Paragraph 120, the Prosecutor states, according to the Joint

16     Command order for the defence of built-up areas, again this is

17     exaggeration.  It's not an order, it's an instruction, and that's not the

18     same thing and the instruction is temporary.  Was it ever applied?

19     Nobody knows if it was ever implemented.  How long did it last?  We don't

20     know that either, if it was implemented.  There's no evidence in the case

21     to show any of this, but an attempt is being made to extend this to the

22     entire indictment.  On the contrary, in August 1998, the MUP did

23     establish a reserve police detachments, units, but nowhere was it -- was

24     there command.

25             In paragraph 156, there's no mention of any sources for these

Page 27072

 1     claims.  I'm trying to speed up.  Paragraph 156, the Joint Command was

 2     established in June 1998.  The evidence is supposed to be the ministry

 3     letter.  Djakovic says that he and Pavkovic made up the title.  Do you

 4     believe him or not?

 5             Paragraph 157, the Prosecutor says:  Pursuant to a decision by

 6     the Supreme Defence Council dated the 9th of September, 1998, the VJ made

 7     a plan to combat terrorism.  Any reference to the Joint Command there?

 8     This is a planning function.  Based on what the Prosecutor says, this is

 9     in Belgrade and not that the VJ, not with Sainovic, yet that is what the

10     indictment claims.

11             Paragraph 160, the first meeting of the Joint Command was held in

12     Pristina the day after the meeting at Milosevic.  This was the conclusion

13     in the first entry in Djakovic's notebook dated the 22nd of July, 1998,

14     but Djakovic, himself, said the term was used before the civilians

15     arrived.  This is at pages 26378 and 26381.

16             Djakovic also explained who the term Joint Command was applied

17     to, and this is page 26382.  That is the explanation.  If you want the

18     truth, consider Djakovic.  If you do, you won't need ten other

19     explanations about things entirely unrelated to all of this.

20             Paragraph 158 says that at a session of the Main Board of the SPS

21     a group of three was appointed, and Milosevic observed that the group

22     should be amplified, extended.  In paragraph 160, the Prosecutor claims

23     that Milosevic's request was met.  At a meeting dated the 22nd of July,

24     1998, this extended group now included Sainovic, Pavkovic, Lukic, Gajic,

25     and Djakovic.  I don't know what the source is for this declaration,

Page 27073

 1     except for that the fact of the entire list of persons attending the

 2     meeting on the 22nd of July, 1998, is in Djakovic's notebook, P1468.  How

 3     based on a list of those attending can one conclude that this was

 4     Milosevic's desire and that this was a way to see them implemented?  I

 5     simply fail to understand that.  There is no evidence showing this.

 6     There is a list of who Milosevic is dispatching.  Why do we have nothing

 7     in writing about this apparent extension?

 8             Paragraph 161, now that's really interesting.  The Prosecutor

 9     claims Djakovic was the note-taker for the VJ at these meetings of the

10     Joint Command.  For two years, the Prosecutor kept claiming that

11     Djakovic's notes were records of the meetings of the Joint Command for

12     Kosovo and Metohija.  Now they called him a note-taker.

13             Let me repeat.  Perhaps this was on account of my speed.

14             Paragraph 161, we see the Prosecutor claiming that Djakovic was

15     the note-taker for the VJ at meetings of the Joint Command, note-taker.

16     For two years, the Prosecutor has been claiming that Djakovic's notes

17     were records of the Joint Command for Kosovo and Metohija.  Now all of a

18     sudden Djakovic is a note-taker only for the VJ.  This is some progress

19     in understanding his role.

20             I see now the Prosecutor finally accepts that there are no

21     minutes of any meetings of the Joint Command, but again we have something

22     new cropping up.  There is an oral explanation by the Prosecutor

23     promoting Djakovic to a member of the Joint Command, claiming that he

24     kept minutes in an official capacity which is another case of

25     manipulation.

Page 27074

 1             Paragraph 162, claims that as of the 22nd of July, 1998, meetings

 2     of the VJ, the MUP, and, as the Prosecutor claims, Milosevic's officials

 3     from Belgrade were described, were designated as the Joint Command.  This

 4     is corroborated apparently by Djakovic's words at 26378; however, at

 5     26378, Djakovic never actually says that these meetings were referred to

 6     as the Joint Command.  All Djakovic says there is that he and Pavkovic

 7     for internal purposes referred to as the Joint Command, while the

 8     politicians called these meetings sessions.

 9             Paragraph 163, the Prosecutor claims that these meetings were

10     first held in the PIV building, the Temporary Executive Council building.

11     In July 1988 [as interpreted], there is no Temporary Executive Council

12     any longer, or rather, not yet.  The Temporary Executive Council was only

13     set up in 1998, in September 1998.

14             Your Honours, I think this might be a convenient time for our

15     lunch break.

16             JUDGE BONOMY:  Very well, Mr. Fila.  Thank you.

17             We will resume in an hour at quarter to 2.00.

18                           --- Luncheon recess taken at 12.45 p.m.

19                           --- On resuming at 1.48 p.m.

20             JUDGE BONOMY:  Please continue, Mr. Fila.

21             MR. FILA: [Interpretation] Paragraph 163, the Prosecutor says

22     that Momir Stojanovic became aware of the existence of the Joint Command

23     in June 1998; however, at pages 19761 through 19762, where the Prosecutor

24     makes this claim, the allegation is simply not to be found.  Momir

25     Stojanovic speaks about when he heard of the term "the Joint Command,"

Page 27075

 1     which doesn't mean that he heard of the existence of a body called the

 2     Joint Command.  This is particularly important because Stojanovic

 3     explains what he heard.

 4             He explains what he heard and what he heard was about.  Kotur

 5     also says nothing about being aware or becoming aware of the existence of

 6     some command; rather, at page 20714, as the Prosecutor claims, he talks

 7     about the term "the Joint Command" and the explanation of that term

 8     provided to him by Djakovic.  Kotur never says a single word about the

 9     command.  He simply recounts what he was told by Djakovic about his

10     conversation with Pavkovic and what to call the meetings that he

11     attended.

12             In this paragraph, the Prosecutor also mentions Ljubinko Cvetic,

13     who allegedly heard something that no one else who was with the MUP ever

14     heard as early as the 10th of July, 1998; and I must emphasize this, as

15     early as the 10th of July, 1998, at a time when, if we bear in mind the

16     allegation contained in paragraph 160, the Joint Command never even

17     existed.  This is 12 days earlier.  Cvetic also knows that Sainovic is at

18     the head of this Joint Command; whereas, the Prosecutor, himself, claims

19     that up until at least the 14th of September, 1998, it was Minic who

20     headed the Joint Command.  Sainovic could not possibly have been the

21     person that Cvetic had heard anything at all about.

22             Paragraph 164, the Prosecutor claims that Milosevic exercised

23     control over the Joint Command first through Minic.  Not a single source

24     is quoted to corroborate this.  This is a fabrication and nothing else.

25     Evidence on Minic's chairing these meetings is something that the

Page 27076

 1     Prosecutor finds in Djakovic's notebook.  In footnote 408, they say that

 2     Minic remained chairman until the 14th of September, 1998.  In that same

 3     paragraph, they go on to state that Milosevic later exercised control,

 4     just as before, but through Sainovic.  Two sources are indicated:

 5     Perisic's letter and Cvetic's letter at 8078.  This is another

 6     fabrication from beginning to end.  Cvetic's evidence at 8078; Cvetic's

 7     evidence, that's 8078.

 8             At first, it was Minic who chaired the meetings; and if Minic

 9     continued to chair meetings until the 14th of September, 1998, how then

10     do we have Perisic's letter dated the 23rd of July, 1998, being used as a

11     source that Milosevic was exercising control over the Joint Command

12     through Sainovic?  Logically, this makes no sense at all.  This is

13     essentially nonsense and an untruth.  Perisic's letter makes no mention

14     of the fact that Milosevic was exercising control over the Joint Command

15     through Sainovic, nor is there any reference that he first did this

16     through Minic and now through Sainovic.  The letter is dated the 23rd of

17     July.  The meetings of the Joint Command allegedly started on the 22nd of

18     July.  It follows that this is pure nonsense.

19             The other source for this affirmation or assertion that Milosevic

20     was exercising control over the Joint Command through Sainovic is Cvetic;

21     this is at 8078.  If you look at that page or any other page for that

22     matter in Cvetic's evidence, this theory is never mentioned at all.

23     Apparently, Cvetic heard who the members and the leaders of the Joint

24     Command were at a meeting at the MUP staff of the 22nd of July, 1998.

25     Cvetic names these members and says that Sainovic was at the head of the

Page 27077

 1     Joint Command.  This is absurd because the Prosecutor claims that Minic

 2     chaired the body at least up until the 14th of September, 1998.  In

 3     addition to this, Cvetic is -- Cvetic's allegations are denied by

 4     everybody else, Mijatovic, Jurisic, Adamovic.  Also in the transcript

 5     from that meeting, there is no mention of that, 6D798, paragraph 164.

 6             The Prosecutor claims that in October 1998, Sainovic chaired a

 7     meeting of the Joint Command; again, no source is given.  They go on to

 8     state that Sainovic at that time issued orders; all of this probably

 9     based on the notebook which is P1468, and all this despite Djakovic's

10     evidence, all this in the face of dozens of witnesses who explained how

11     anti-terrorist action was conducted and how control was exercised over

12     these actions in Kosovo and Metohija in 1998.

13             It is entirely unbelievable how the Prosecutor should take

14     Djakovic's notebook and then, based on that, draw the conclusion that

15     Sainovic headed the Joint Command, and yet not a single word is found

16     about that in that very notebook, paragraph 146 -- 164.  The last

17     sentence is another example of a shockingly inaccurate interpretation of

18     evidence.  The sentence claims that Sainovic occupied the position of

19     head of the Joint Command throughout the period relevant to the

20     indictment.  There is only one source, Aleksander Vasiljevic.  We're

21     talking about the Milosevic transcript, and we're talking about

22     Vasiljevic's evidence in this trial, page 43 of Exhibit P2589.  This is

23     the transcript from the Milosevic trial.

24             Nice wants Vasiljevic to interpret Pavkovic's letter dated the

25     25th of May, 1999.  Vasiljevic, based on that letter, offers an entirely

Page 27078

 1     free interpretation of the position and the role of the Joint Command.

 2     Elsewhere in that transcript, nice uses 19 lines of the transcript,

 3     nearly an entire page.  He gives a speech and explains to Vasiljevic what

 4     this is about, stating that Vasiljevic was looking at a document that

 5     pre-dated the period that he was able to give evidence about because that

 6     was before this became relevant.  Then he quotes parts of Djakovic's

 7     notebook and leads him to certain conclusions.

 8             The Defence would like to quote the position of the Chamber in

 9     this case; this is TT26722:  "Witnesses are not to be used in order to

10     provide analyses or to read other people's letters, but in order to give

11     us directly their knowledge or any other knowledge they may possess about

12     the relevant circumstances."

13             Here we see Nice insisting that Vasiljevic do just that and

14     comment on Pavkovic's letter.  Another source is Vasiljevic's statement

15     dated the 14th of January, 2007, which is in contradiction to

16     Vasiljevic's statement dated July 2007 and other statements made by

17     Vasiljevic.  Also up until the 27th of April -- or by the 27th of April,

18     1999, Vasiljevic is already retired.  Vasiljevic tells us himself about

19     the Joint Command throughout 1998.  He knows Stojanovic.

20             Vasiljevic also says that Stojanovic never told him anything

21     about the Joint Command throughout 1999; page 8820.  How, then, can the

22     Prosecutor conclude anything at all that based on Vasiljevic's evidence

23     about the existence of the Joint Command at any point in time during

24     1999?

25             Paragraph 166, the Prosecutor inaccurately represents Pesic as a

Page 27079

 1     source for the assertion that the Joint Command exercised command and

 2     control over the VJ and the MUP in Kosovo; this is P2502, paragraph 32.

 3     All that Pesic actually claims there is that the Joint Command

 4     coordinated the work of the VJ and the MUP, which is entirely different

 5     from what the Prosecutor would have us believe.

 6             Also, if we go to Cvetic's evidence, pages 8051 through 8052,

 7     there is no indication at all of what the Prosecutor would have us

 8     believe.  If you look at pages 8194 through 8195, pages invoked by the

 9     OTP, Cvetic makes this even more explicit.  The Joint Command coordinated

10     activities, but the chains of command enshrined in the relevant laws were

11     preserved in their entirety.

12             Vasiljevic is mentioned in that paragraph, yet he knows nothing

13     about the Joint Command.  He knows no more than he was told by Stojanovic

14     in relation to 1998, and this is something that we have already

15     discussed.

16             Paragraph 167, the Prosecutor tells us that the most important

17     part of the activities of the Joint Command was the planning and

18     coordination of the joint actions of the VJ and MUP in Kosovo.  No source

19     is given yet again.  In that same paragraph, the Prosecutor says that

20     Djakovic explains that the Joint Command was an element of coordination

21     between the VJ and the MUP.  Here the Prosecutor invokes Djakovic's

22     evidence, but Djakovic's sentence was pulled out of context because the

23     essence of his sentence was that the fact that the term "Joint Command"

24     referred to Pavkovic and Lukic and no one else.

25             Paragraph 171, the Prosecutor says that in P2166, page 3, we see

Page 27080

 1     that the Joint Command was in charge of implementing the plan for the

 2     suppression of terrorism.  Quite simply, that's not what the document or

 3     that specific page say.  There are no references at all to the Joint

 4     Command.  The words "Joint Command" are not mentioned on that page at

 5     all.  The Prosecutor quotes extensively the excerpts from Djakovic's

 6     notebook; although, the substance of this notebook has not been

 7     clarified, it has not been translated, and it remains illegible.

 8             Paragraph 171, the Prosecutor mentions armed civilians and the

 9     Joint Command.  Quite aside from their inaccurate quotes of the document,

10     there is something that is even more important that is being overlooked

11     here; they're not being specific enough in terms of the time-line.  What

12     is 1998 and what is 1999?

13             Paragraphs 172 and 173, the Prosecutor ignores the substance of a

14     VJ document showing that the Pristina Corps was -- only carried out

15     orders of its superior command -- exclusive role of the chain of command

16     by the VJ.

17             Paragraph 171, the Prosecutor furnishes as proof of the existence

18     of the Joint Command, the plan --  or rather, the communications plan

19     P1052, where we find the code-name Pastrik.  However, the Prosecutor

20     ignores evidence to the fact that Pastrik was a code-name used for the

21     Pristina Corps, paragraph 179.  The Prosecutor claims that the Joint

22     Command is receiving directives from Belgrade, more specifically from

23     Milosevic.  The source of this is Vasiljevic, page 139, P2589.  We find

24     nothing about this there.  Again, the Prosecutor refers to P1468, pages

25     63 through 64.  75, 130, no reference there either.  Least of all do we

Page 27081

 1     get to understand what these documents really claim.

 2             Paragraph 179 mentions that the Joint Command issued a report and

 3     a conclusion about the implementation of the plan to combat terrorism in

 4     October 1998.  They say that this is at P1011, page 72; again, there is

 5     nothing there, the document doesn't exist.  There is just a heading, no

 6     more than a heading, indicating the existence of that report.  But does

 7     that report exist?  What does it say?  Who produced it?  No evidence on

 8     that.

 9             Paragraph 181, meeting dated the 29th of October, 1998.  The

10     Prosecutor entirely neglects assessments by Dimitrijevic and other

11     participants in that meeting as well as their conclusions about what the

12     minutes of that meeting really mean.  None of the participants mention

13     anything about the first stage of the Joint Command's work as quoted by

14     the OTP.  If we look at the conclusions of that meeting and based on this

15     very document, P2166, we find nothing about the decision being taken at

16     the meeting that the Joint Command should continue its work.

17     Dimitrijevic's evidence denies the existence of any minutes or any

18     transcript, that's P2166, because Dimitrijevic, himself, gave evidence to

19     the effect that Susic was seated right next to him.  No records were made

20     of the meeting or else he would have seen it himself.  Dimitrijevic also

21     expressed his doubt to the effect that the record might have been

22     produced at a later date under suspicious circumstances.  We would also

23     like to remind Trial Chamber of the fact that Minic tells us that he

24     never used the term "the Joint Command."

25             Paragraph 193, based on a plurality of several hundred documents

Page 27082

 1     used in this trial, in addition to the Joint Command order explained by

 2     Defence witnesses, the Prosecutor sets aside another two documents, P2016

 3     and P2017, telling us that these documents prove the existence of the

 4     Joint Command during the war.  The Defence believes that if at all the

 5     Joint Command had played a role attributed to it by the Prosecutor, there

 6     would need to be an incomparably greater number of documents telling us

 7     about its composition and telling us about its exact role in what was

 8     going on.

 9             Paragraph 194, the Prosecutor claims that it is possible to

10     conclude that there is a parallel structure between the PRK, the Pristina

11     Corps, as a staff of the Joint Command and the staff of the Supreme

12     Command, but the sources being quoted there tell us nothing about that.

13             Paragraphs 203 and 204, we find there a description of the

14     meeting held on the 1st of June.  Vasiljevic tells us clearly that he is

15     not saying this is a Joint Command meeting; and what's more, he has no

16     idea in what capacity Sainovic appeared at that meeting.  If we go back

17     to his notebook, and his notebook is shown, it doesn't say Joint Command

18     meeting.  It says a meeting was held at the Pristina Corps command;

19     that's what it says.

20             Paragraph 203, Vasiljevic is inaccurately quoted there.

21     Vasiljevic allegedly says, "Do as we planned"; whereas, Vasiljevic's

22     statement, and this is particularly important Vasiljevic's statement,

23     P2600, paragraph 81, shows this, "Do as you planned."  There's a world of

24     difference there.  Sainovic is not involved in the planning.  This is a

25     dangerous and inaccurate assertion, not to say capricious.

Page 27083

 1             Paragraph 262, the Prosecutor tells us who the members were of

 2     the Joint Command in 1999.  They give us four names, but it is hard to

 3     see just based on what the Prosecutor drew this conclusion.

 4             We leave this open.

 5             Paragraph 281, the Prosecutor concludes that Stevanovic in his

 6     notebook recorded that in May 1999, he had together with Sainovic

 7     attended a meeting at Milosevic's.  The source for this is a document

 8     that is being alleged to be Stevanovic's notebook, and this is concluded

 9     based on Vasiljevic's evidence; whereas, Vasiljevic first set eyes on

10     this notebook when it was shown to him by the Prosecutor, Mr. Nice.

11     Vasiljevic said explicitly he didn't know whether Sainovic had attended

12     that meeting or not, and he didn't know whether he had contributed

13     anything at that meeting or not.  This is TT8830.

14             If Stevanovic had testified in this trial, he probably would have

15     been able to explain how and why he used special channels to set apart

16     the transcripts of his meetings at Milosevic's from his own notes where

17     he refers to Sainovic.  I think we should now look at page 88 in the

18     Serbian.  This is 106 of the English, and the exhibit is P1898.  This

19     will help us better understand what I'm talking about.

20             If Stevanovic had testified, he would have explained about the

21     lines on these pages which obviously separate the body of the notes from

22     the meeting with the president from perhaps some other text mentioning

23     Sainovic.

24             Can that please be displayed now so it's there for all to see.

25     This is P1898.  This is 88 in the Serbian and 106 in the English.  Is it

Page 27084

 1     a problem for us to show this now?  Could we please show the entire page

 2     in the Serbian, and then later we can have a look at the English just to

 3     clarify what I'm talking about.

 4             There.  That is what I've been trying to say.  You see item 8.

 5     It says "change of staff" or something along these lines, and then two

 6     lines drawn there, and then it says "chairman" and then whatever it says,

 7     and then the two lines end and they move on to item 9.  Item 8 is

 8     followed by item 9, and that's probably what it says.

 9             So why is this being marked out?  There are some strange

10     recordings there, some strange numbers 306 or whatever.  I have no idea

11     what that means.  But what this means is we can't take Vasiljevic's

12     interpretation at face value, and Vasiljevic's interpretation does not

13     allow us to draw any conclusions as to what this means.  Does Sainovic

14     ever attend this meeting?  Is this the meeting we're talking about?  If

15     the Prosecutor had been interested in learning the truth, they would have

16     brought Stevanovic to testify.  That's all I'm trying to say, and we can

17     stop here.

18             I'm moving on to paragraph 660 where the Prosecutor says that

19     Sainovic was the political leader of the delegation in Rambouillet.  It's

20     true that Sainovic was the only member of the delegation dealing with

21     foreign policy issues, the rest were legal men or representatives of

22     national communities.  And from the evidence shown, it can clearly be

23     seen that there was no political leader.  All that existed was a

24     delegation led by Professor Markovic.

25             Paragraph 661 now, the Prosecutor states that Sainovic had

Page 27085

 1     influence in the socialist party of Serbia, first of all, as

 2     vice-president.  Have you forgotten that as of the 24th of April, 1997,

 3     for example, Sainovic was not the vice-president of the SPS for reasons

 4     explained in detail in the Defence brief, and I don't want to repeat them

 5     here.

 6             Paragraph 662, the Prosecutor claims that Sainovic's influence

 7     emanates from his closeness to Milosevic.  What are the sources?  An

 8     excerpt from Bulatovic's book in footnote 1683 states -- or rather,

 9     Bulatovic makes no mention of Sainovic's strength emanating from his

10     close relations with Milosevic.  All that Bulatovic says is just one

11     sentence, in fact.  He says that Milosevic asked Sainovic to lead

12     political activities with respect to Kosovo and Metohija, and Bulatovic

13     goes on to explain that that was because Milosevic wanted to protect him,

14     Bulatovic.

15             Yes.  That Milosevic wanted to protect Bulatovic.  Does that

16     speak about any closeness in relations?  Quite the contrary, it speaks

17     about the closeness between Bulatovic's close relations with Milosevic

18     because Milosevic is protecting Bulatovic and sends this other man to

19     Kosovo.

20             Then, furthermore, it is stated, as a source we have Gajic on

21     page 15443, that he also refers to this closeness in relations; however,

22     that does not exist.  There's none of that.  The Prosecutor quotes two

23     excerpts from Sainovic's interview as well about the affairs that

24     Sainovic is engaged in.  Once again, there's nothing about any closeness

25     of relations from which his authority would be -- would emanate.

Page 27086

 1     Milosevic was the president of the state, and millions of people had

 2     contact with him -- or hundreds of people, and that quality was no

 3     different in character than the contacts and relationships Sainovic had

 4     with him.  So I don't see how the Prosecutor can claim that there was a

 5     closeness in their relationships.

 6             Paragraph 662 goes further on and says that Sainovic was part of

 7     Milosevic's inner circle, which is an absolutely fabrication because

 8     nobody ever said that anywhere.  I don't see it anywhere in writing or

 9     anywhere else for that matter.  The Prosecution states that Naumann said

10     that Sainovic was Milosevic's close associate.  Naumann says that within

11     the context of the meeting he had with Milosevic in January 1999 and with

12     Sainovic and as the president of the commission.  He quotes Petritsch;

13     however, Petritsch speaks of the assumptions within the frameworks of the

14     diplomatic community in Belgrade.  Petritsch's description of the role of

15     Sainovic is quite different, and the Defence provides it in exstenso in

16     its brief.

17             Paragraph 663, the Prosecutor begins with the following, and I

18     quote:  "As Milosevic's representative for Kosovo, neither in this

19     paragraph or in previous paragraphs where such claims are made, nothing

20     is said about what grounds this is based on," that Sainovic was

21     Milosevic's representative in Kosovo.  All the sources that the

22     Prosecutor refers to in this paragraph relates to the time of the KVM,

23     and at that time Sainovic had his obligations as president of the

24     commission.  And the Prosecution concludes on the basis of what

25     Dimitrijevic says about what Crosland says.  Crosland, Ciaglinski, and

Page 27087

 1     others speak of their assumptions and their impressions.  They cannot

 2     know what the responsibilities were of the president of FRY and of Serbia

 3     because they didn't know the internal political system, all relations

 4     that governed the political system within the FRY and Serbia, for

 5     example.  Ciaglinski says that Sainovic in 1999 -- that he saw Sainovic

 6     in 1999 every two or three days in Kosovo.  Who, then, was in Rambouillet

 7     instead of Sainovic if Ciaglinski saw him in Kosovo so frequently?

 8             Paragraph 664, the Prosecutor says that whenever it was necessary

 9     to go -- for somebody to go to Belgrade, Sainovic went to Belgrade, and

10     the conclusion made there is that he went every two or three days.  Now,

11     evidence has been shown and presented about that, yes, he did go to

12     Belgrade but not on a daily basis.

13             Paragraph 666, the Prosecution intentionally mixes up the time of

14     the KVM mission with other times, and so they quote and say that Pavkovic

15     and Loncar informed Sainovic about the events and uses Djakovic as a

16     source.  Loncar was speaking at one time; Djakovic's notes cover another

17     time.  So this is a mix-up of the time-periods, which serves the

18     Prosecutor well in overcoming his basic problems, a time of war after the

19     24th of March, 1999.  There are just a few indications about Sainovic's

20     role in Kosovo and Metohija, and you can't have an analogy made there

21     which is what the Prosecution wants to do to diminish the evidence and by

22     using assertions and claims which refer to a different time-period.

23             The Prosecutor also quotes Farkas as if he knew what Sainovic's

24     role was in Kosovo and Metohija; whereas, Farkas, himself, says that from

25     what Sainovic said at the meeting that was held on the 17th of May, 1999,

Page 27088

 1     he drew conclusions from which it is clear that he has no other knowledge

 2     than that, and that is to be found on page 16368.

 3             Paragraph 667, all the comments given by Sainovic at the meeting

 4     of the 17th of May, 1999, indicate precisely that Sainovic had -- did not

 5     have the role that the Prosecutor ascribes to him.  Had Sainovic been

 6     responsible for Kosovo and Metohija, he would be the man who was asked

 7     all the questions and provided all the answers, the man who was given

 8     duties to perform, but none of that ever happened.  Sainovic's

 9     participation at that meeting was marginal.  Nothing that he said or did

10     indicates that he had any authority, certainly not of the kind that the

11     Prosecutor is ascribing.

12             What the Prosecutor quotes as proof of Sainovic's influence on

13     the basis of P2592 of General Vasiljevic's notebook is marginal and

14     insignificant if compared to what the other participants at the meeting

15     said when they took the floor.

16             Paragraph 668, the Prosecutor talks about the confidence that

17     Milosevic placed in Sainovic and says that it is evident that Sainovic

18     had maintained contacts with Rugova, and he quotes Rugova and Merovci who

19     says that he talked to Sainovic just to pass the time.  There is no

20     mention anywhere of Milosevic and the trust and confidence he placed in

21     Sainovic.  The Prosecutor also quotes Bulatovic, Jovanovic, Minic,

22     Matkovic as sources for these claims; also fabricated.  None of them

23     makes any mention of Milosevic's confidence when it comes to Sainovic but

24     exclusively the fact that Sainovic talked to Rugova and that those talks

25     were important, nothing more than that.  The Prosecutor, therefore,

Page 27089

 1     represents the facts inaccurately.

 2             Paragraph 668, the talks between Sainovic and Rugova in April

 3     1999, the Prosecutor says that they were propaganda campaigns.  There's

 4     no evidence of that.  Rugova does not mention a propaganda campaign

 5     anywhere and neither does Sainovic.

 6             Paragraph 668, the Prosecutor claims that in Merovci statement,

 7     P2588, paragraph 64, we can see that Sainovic was acting in Milosevic's

 8     name and that he was consulting Milosevic before making decisions.

 9     Everything that it says in that paragraph is that Merovci saw Sainovic on

10     television at some meeting which was also attended by leading officials

11     together with Milosevic, and that's why hoe concluded that Sainovic was

12     appointed by Milosevic.  No other source bears that out.  He also says

13     Sainovic nodded his head when Merovci mentioned Milosevic; however,

14     Merovci makes no mention of any decisions and who Sainovic consulted if

15     anyone.  He could not have known that.

16             Everything that the Prosecutor states there has been construed by

17     using parts of testimonies from witnesses, but they cannot be serious

18     grounds for making any conclusions about Sainovic's role and his

19     relationships with Milosevic.

20             Paragraph 671, the Prosecutor states that on the 4th of May,

21     1999, Rugova and Merovci went to Belgrade for talks with Sainovic and

22     Milosevic.  There is no source for making these claims and assertions.

23     They did travel to Belgrade to meet representatives of the Italian

24     embassy, that is true, and to leave the country.

25             Paragraph 673 begins with a flagrantly inaccurate assertion that

Page 27090

 1     the ZK started in June 1998 and existed until June 1999.  There is no --

 2     there are no grounds for this assertion because nobody said that at this

 3     trial at all.  The next sentence is also inaccurate and incorrect.  It

 4     says:  "By Sainovic, Milosevic exercised control over the ZK."  The

 5     source is Vasiljevic, P2600, paragraph 80.  Vasiljevic presents his

 6     assumptions there.  Even he who gives free interpretation to many things

 7     says that Sainovic must have been appointed by Milosevic.  Now, in that

 8     sentence in Serbian is just a claim, an assumption.  And even if you look

 9     at Vasiljevic's testimony superficially and even if you accept the fact

10     that he knew something about Sainovic, these can only be assertions.

11             Paragraph 673, the Prosecutor does not tell us how Sainovic at

12     the material time of the indictment contributed to the preparation and

13     planning of an action.

14             All conclusions stem from Vasiljevic and his conclusion with

15     respect to the meeting held on the 1st of June, 1999.  Everything that

16     Vasiljevic said -- what Vasiljevic said was that he did not know what

17     role Sainovic played because Sainovic used what the representatives of

18     the VJ said and MUP.  There was no ordering, planning, authorisation of

19     attacks, transformation of instructions, and so on and so forth.  These

20     are just claims made by the Prosecution and are not professional.

21             Let me repeat, everything that -- all that Vasiljevic said was he

22     did not know what Sainovic's role was and that Sainovic agreed with what

23     the representatives of the MUP and VJ said.  2D383 [as interpreted] is

24     the reference.  No ordering, planning, or anything like that took place.

25     All that has been construed and fabricated by the Prosecutor.

Page 27091

 1             Paragraph 672 [as interpreted], it says from the start of the ZK

 2     to the end of the war, Sainovic was the central figure in ZK activities,

 3     and then evidence follows.  He was present at the session of the Main

 4     Board of the SPS, for example.

 5             In the previous paragraph, there's something different in the

 6     transcript.  The number I quoted was 2D387 as a reference, 2D387.

 7             Anyway, he was present at the meeting of the Main Board of the

 8     SPS on the 10th of June, 1998, and on the 21st of July, 1998, at a

 9     meeting with Milosevic.

10             Shall I begin again, paragraph 675, the Prosecutor states as

11     follows:  "Since the inception of the Joint Command up until the end of

12     the war, Sainovic was the central figure in ZK activities, "and this is

13     the evidence they offer up to support that assertion.  He was present at

14     the meeting of the Main Board of the SPS on the 10th of June, 1998; he

15     was also present on the 21st of July, 1998, at a meeting with Milosevic

16     where Pavkovic put forward a plan for an offensive.  Sainovic, therefore,

17     was the central figure because he was present at that meeting of the Main

18     Board of the SPS with several hundred other people, might I add.  And at

19     the meeting, mention was made of Kosovo and Metohija, but Sainovic did

20     not say a single word, nor did anybody mention him.  And as far as the

21     second meeting is concerned, there were many military, police, and

22     political figures there, and there is no proof or evidence whereby

23     Sainovic said anything or did anything.  So how can he be a central

24     figure if he only attended the meetings and did nothing more than that?

25             Paragraph 676, the Prosecutor describes Sainovic --

Page 27092

 1             JUDGE BONOMY:  Mr. Fila, are you now just going to go through

 2     every one of these paragraphs of the Prosecution brief in relation to

 3     Mr. Sainovic's individual criminal responsibility, including repeating

 4     things you've already said in dealing with the Joint Command at the

 5     earlier stage?  Is that what you're going to do?

 6             MR. FILA: [Interpretation] I'll try not repeat matters.

 7             JUDGE BONOMY:  Just give us a moment, please.

 8                           [Trial Chamber confers]

 9             JUDGE BONOMY:  We observe your earlier comments, Mr. Fila, about

10     Mr. Hannis's ten points of the drunk driver, but think that you may have

11     fallen into the same trap to some extent.  We also remind you that your

12     opening gambit in your submissions was that if your case is any good, you

13     won't have to say much about it as an advocate at the end of it.

14     However, we do appreciate that what you're doing is analysing the

15     Prosecution's submissions, and we actually find that a very helpful

16     approach.  But we would encourage you to minimise the repetition as far

17     as you can.

18             So please continue.

19             MR. FILA: [Interpretation] Paragraph 677 -- or should I skip that

20     too?

21             JUDGE BONOMY:  You mustn't skip anything -- sorry.  I thought you

22     were asking me, but you're actually asking Mr. Petrovic.

23             MR. FILA: [Interpretation] Paragraph 678 -- believe me, I find

24     this even more boring than you --

25             THE INTERPRETER:  The interpreter did not understand the

Page 27093

 1     remaining part of the sentence.

 2             MR. FILA: [Interpretation] There is a job to be done, that's all.

 3     I accept everything you say, Your Honours.  I'll try to cut this short.

 4             Paragraph 678, this is about proving Sainovic's authority over

 5     the MUP.  All I'm trying to say here is that there was a court order

 6     about only that part of the notebook being relevant which Djakovic

 7     interpreted at IC199.  This is where Djakovic explains what the

 8     Prosecutor claims in paragraph 678.  There is no mention there of any

 9     secretariats liquidations.  I'm talking about pages 10 and 11 in the

10     Serbian.

11             The other piece of evidence on Sainovic's authority over the MUP

12     is Merovci telling Sainovic that a part of the route was dangerous.  The

13     third proof is the question of the MUP's presence in Malisevo.  Merovci

14     said this was dangerous.  That's it.  I just said it like that.  This is

15     about the MUP's presence in Malisevo, the complexity that that part of

16     the route was dangerous.  And this is something that was explained by

17     Byrnes and Phillips and the Prosecutor misrepresents this situation.  I'm

18     invoking Byrnes.  Byrnes, he was working on that; and what he said

19     Sainovic was doing, well, that's that, and it certainly wasn't authority

20     over the MUP.

21             679, as if Dimitrijevic never gave evidence before this Court.

22     Where is the principle of directness or immediacy and the right of any

23     accused to a fair trial?

24             681, Sainovic's responsibility for the security situation in

25     Kosovo and Metohija.  This is proved by him attending several meetings in

Page 27094

 1     Kosovo, a grand total of two throughout the entire war, in fact.

 2             684, paragraph 684, this is the best illustration of how

 3     worthless Djakovic's notes are.  According to the OTP's interpretation,

 4     Sainovic is here saying on the 21st of September, 1998, that the

 5     Milosevic-Yeltsin agreement is not being implemented.  It is entirely

 6     clear that Djakovic failed to understand or failed to record what was

 7     being said.  The notes that do exist are obviously meaningless,

 8     especially to confirm the fact that the October agreement was being

 9     obstructed, and this is something that Sainovic was busy working on

10     already as early as September.

11             Paragraph 686, Sainovic tried to stop the inspection of the

12     barracks; although, all the evidence we have says exactly the opposite.

13     For example, 3D438, Obradovic says that he was informed by Sainovic that

14     no inspection would take place, informed; and then Loncar said this was a

15     decision of the federal government.  The question of the helicopters of

16     Malisevo, the electricity for the verification mission, this is something

17     that was mentioned so many times there is no need for me to repeat this

18     again, the conclusion being that Sainovic made no independent decisions

19     at all.

20             Paragraph 687, the Prosecutor says that Petritsch claims that

21     Sainovic obstructed the Rambouillet talks.  What I'm saying is this:  The

22     Court should take what Petritsch said at face value.  If Petritsch said

23     that about Sainovic, well, then, fine, but he didn't.

24             Look at 10717, it's just not true.  He says that Sainovic was a

25     pleasant person to talk to and someone who was friendly and that he was

Page 27095

 1     someone that he was sending the Ministers Cook and Vedrine to speak to.

 2             Paragraph 688, the negative approach of the Serb delegation being

 3     a result of Milosevic's instructions.  That may have been the case, it

 4     may not have been the case, but then the Prosecutor says that these

 5     instructions were forwarded by Sainovic.  I simply fail to see that.

 6     They invoke Petritsch again who talks about these instructions but never

 7     mentions Sainovic.  There is a reference admittedly somewhere, but he

 8     says probably from Milosevic but he is far from certain.  Then Surroi,

 9     who here as was in the previous paragraph, is quoted.  It's quite clear

10     that he's in no position to know about the nature of those relations in

11     the delegation itself, because as you know the Albanians and the Serbs

12     never met, never physically met.  They were physically separate during

13     the talks.

14             Yet, again, we go back to the previous paragraph, the now

15     paragraph 688, what evidence do we have for Sainovic's behaviour?  We see

16     Dragan [Realtime transcript read in error "Sidran"] Milanovic's evidence

17     being invoked there, but we don't know that this man said anything at all

18     about Rambouillet.  He talked about transformers, he talked about he the

19     bombing of Bor, as long as we're talking about the same Dragan Milanovic.

20     If not, then this was probably at a different trial somewhere where I was

21     not present.

22             Paragraph 688, the Prosecutor concludes that Sainovic had control

23     over the delegation.  It says Sidran Milanovic, not Dragan Milanovic.

24     Dragan Milanovic.  That is what it says.  I have no idea who this man is.

25             688, Sainovic being in control of the delegation; no source

Page 27096

 1     quoted.

 2             692, Tanic listens to a tape about Racko [as interpreted].  Tanic

 3     says he couldn't tell the voices and he couldn't really tell what it was

 4     that he had heard.  He said it himself.

 5             Another allegation being made there is that Sainovic was supposed

 6     to punish some perpetrators or some such.  Sainovic's authority to

 7     prosecute anyone, where does that come from?  The Prosecutor himself

 8     tells us that both the VJ and the MUP had their own chains of command and

 9     disciplinary and criminal responsibility.  What does Sainovic have to do

10     with all this?

11             Paragraph 693, this is something about the birth-rate among the

12     Albanians, these are Milosevic's words, and then the conclusion by the

13     OTP is this:  Bearing in mind the close relations between Milosevic and

14     Sainovic - and as I said to begin with, I have no idea how you arrived at

15     this conclusion - there is little doubt that Sainovic shared this

16     approach and Milosevic's plans.  This is a fabrication and it's total

17     nonsense.

18             Paragraph 694, well, the Prosecutor said there was little doubt,

19     there was little doubt, little doubt, that Sainovic knew about this.  In

20     other words, he had to know, based on what?  This is all somehow ill

21     defined.  You know, there was a professor of criminal law when I went to

22     school, perish the thought, this was so long ago.  He said that any

23     indicia in the world must stoop before a single piece of evidence.  This

24     is all just indicia, but is this likely, is this sort of likely, highly

25     likely?

Page 27097

 1             JUDGE BONOMY:  Could you repeat that, please?

 2             MR. FILA: [Interpretation] Professor of criminal law --

 3             JUDGE BONOMY:  He said any --

 4             MR. FILA: [Interpretation] Any indicia in the world must stoop

 5     before a single piece of evidence.  Indicia are worthless.  That's what

 6     he was trying to say.

 7             JUDGE BONOMY:  All right.  Thank you.

 8             MR. FILA: [Interpretation] 696 - I'm getting there - 696 talks

 9     about crimes from 1998.  It tells us that Sainovic knows about these.  If

10     there were any crimes, why aren't they in the indictment?  How come the

11     Prosecutor doesn't know?  How come Sainovic knows and the Prosecutor

12     doesn't?  How does Sainovic get to learn about this?  Where does this

13     information come from?  I fail to understand.  This should probably be

14     drawn from paragraph 698 where he says that he attended meetings, but

15     nothing was said at these meetings about who was perpetrating the crimes

16     and how.  What is discussed there is some operations.  Well, it's a long

17     road one has to take from operations to crimes.

18             Paragraph 707, as evidence of the efficiency of Sainovic's

19     methods for collecting information, the Prosecutor is taking an event

20     here which has been taken out of the indictment.  Somebody introduced

21     himself as Sainovic and spoke to Djordjevic.  Whether it really was

22     Sainovic and what he spoke about is something nobody knows; however, that

23     is sufficient for the Prosecutor to conclude that the topic of

24     conversation must have been Racak, and these are the basis for his

25     arguments.

Page 27098

 1             Paragraph 708, the Prosecutor says that Sainovic must have known

 2     that Drewienkiewicz said to Loncar, but this again is speculation, it's

 3     guess-work.  The Prosecutor says that Sainovic must have known about

 4     Drewienkiewicz's press release of the 1st of April, 1999, but that again

 5     is speculation.

 6             Paragraph 711, in paragraph 711, everything that the Prosecutor

 7     states does not constitute information on crimes.  Nowhere in

 8     Vasiljevic's statement, P2600, paragraph 62, does it say that Pavkovic

 9     informed Sainovic about Izbica.  It simply doesn't state that there.

10     Sainovic was providing information about some sort of commission.

11     Paragraph 712, in connection with the crimes mentioned on the 17th of

12     May, 1999, the only thing Sainovic could have heard is that these cases

13     were brought before the courts.  There was nothing else that was

14     mentioned.  They were dealt with.  The mention of crimes, if he learned

15     about them only then, what sort of culpability is that?

16             Paragraph 722, the Prosecutor again says for the umpteenth time

17     that Vasiljevic was the source for the statement that Sainovic was the

18     chief of the Joint Command, that he was authorised to authorise the use

19     of units.  All this is taken from a sentence formulated by Vasiljevic at

20     the trial which leaves doubt.  It leaves room for doubt, and this is the

21     source for all the conclusions reached about Sainovic and the Joint

22     Command at the time of the war.

23             There's also mention of Dimitrijevic, but the Prosecutor avoids

24     saying what Dimitrijevic testified to before the Court and under oath,

25     and takes its statements from ambiguous, unclear, vague sentences from

Page 27099

 1     the collegium of the chiefs of the General Staff and other documents.

 2             Paragraph 718 to 724, with the exception of paragraph 722 have no

 3     sources.  These are all conclusions reached by the Prosecutor.  In

 4     paragraph 724, the Prosecutor writes about Sainovic's omission, about his

 5     failure to punish the perpetrators.

 6             Could this be corrected, not 718 to 824, but 718 to 724, with the

 7     exception of 722.

 8             Paragraph 724, the Prosecutor says that Sainovic omitted to

 9     punish the perpetrators, but nowhere can one see on the basis of what

10     authority Sainovic was able to do that as Deputy Prime Minister of the

11     federal cabinet.

12             So I have now finished dealing with all these paragraphs, and all

13     that remains is for me to read my conclusion.

14             I believe that the arguments we have put forward as Sainovic's

15     Defence represent our standpoint, that Sainovic was one of the five

16     deputy federal prime ministers whose position was different from that of

17     all the other accused.  He was neither a soldier nor a policeman nor a

18     prime minister or the president of the republic or the state.  The

19     Defence has shown that Sainovic performed the same functions in

20     Bulatovic's government as he did of the previous government, that of

21     Kontic.  Let's remember that he was at Rambouillet [as interpreted], and

22     that he worked on implementation.  Bulatovic formed his government in

23     1998, and after that the situation in Kosovo began to get more complex.

24             It wasn't Rambouillet, it was Dayton.  Before entering

25     Bulatovic's government, Sainovic, as I said, worked on the implementation

Page 27100

 1     of the Dayton Accords.  That's what I was referring to.

 2             Sainovic performed the same function in Bulatovic's government

 3     that he had in Kontic's government, the previous one, but the problem of

 4     Kosovo grew more complex and grew greater after Bulatovic took office.

 5             On the other hand, I wish to show and I hope that I've succeeded

 6     in this that only parts of evidence or documents have been presented to

 7     you and that these have been interpreted by others and not their authors,

 8     especially as regards the Joint Command where Sainovic is nowhere

 9     mentioned either as a member or as a leader in 1999.  Simply, the Chamber

10     has not heard this.

11             And what is presented by the Prosecution is a combination of

12     various indicia and all indicia have to fall in the face of evidence.

13     Numerous witnesses and documents that the Defence has pointed to do not

14     confirm that Sainovic had the role that is presented by the Prosecutor.

15     If we have to find a solution about the Joint Command, the simplest way

16     to explain the Joint Command, to use a simple analogy such as the one of

17     the drunk driver, let's take Djakovic 's and Dimitrijevic's testimonies

18     and then you can reach your judgement.  That's the truth.

19             On the one hand, you have the word of the Prosecutor not

20     supported by evidence but only by indicia, manipulation, and

21     misquotations; and, on the other hand, I believe you have valid evidence

22     brought before the Court presented here before this Trial Chamber.

23     Otherwise, what have we been doing for the past two years?  If these

24     witnesses are not telling the truth and if we have to ignore all this,

25     what are we left with?  Nothing.

Page 27101

 1             For all these reasons, bearing in mind the high level of this

 2     Tribunal and everything that I said about this Tribunal, I ask that this

 3     Tribunal reach its judgement based on the evidence heard here and then

 4     there will be no problems for Sainovic regarding his fate.  I propose

 5     that he be acquitted.  Thank you.

 6             JUDGE BONOMY:  Thank you, Mr. Fila.

 7             One thing for sure you can rely on is our decision will be based

 8     on the evidence we've heard here.

 9             MR. FILA: [Interpretation] I don't doubt that, not for a second.

10             JUDGE BONOMY:  Now we'll move to the submissions and closing

11     arguments on behalf of Mr. Ojdanic.

12             Mr. Sepenuk.

13             MR. SEPENUK:  Thank you, Mr. President, and thank you, Your

14     Honours.  And I appreciate your indulgence in allowing me to use this

15     stool which for what I hope is just a temporary physical condition.  I

16     know it bears a close resemblance to a bar stool, so I hope I don't feel

17     too comfortable or act too comfortable while I'm in it.

18             It's been an honour and a pleasure to appear before this

19     Trial Chamber, and I know that Mr. Visnjic joins me in that, as does

20     General Ojdanic, and we thank the Trial Chamber for the very fair way

21     that you've conducted this trial and for the obviously very close

22     attention you've paid to the evidence over these past two years.

23             I'd like to begin by remarks with a statement made at this trial

24     by Judge Bonomy in March of this year some 20 months after the trial had

25     begun.  Judge Bonomy was discussing whether or not the interview of

Page 27102

 1     General Perisic should be admitted into evidence.  Judge Bonomy said as

 2     follows at that time, and this was on 20 March 2008.  He said, and I

 3     quote:  "None of this Bench has read this interview.  In one sense, it

 4     came to our notice by accident, but that led us to, through curiosity, to

 5     at least explore whether it had anything to do with Kosovo since we knew

 6     that Perisic was indicted in relation to other matters.  So we haven't

 7     read it and that's part of the agony for us."

 8             Judge Bonomy said "that was part of the agony for us," and so I

 9     assume he spoke for the entire Trial Panel.  And at least to me and my

10     colleague, Mr. Visnjic, that indicated to us that the use of this rather

11     strong word, "agony," underline the fact that this Trial Panel was here

12     to do justice and was struggling with the question of the admissibility

13     of the Perisic interview because you wanted to know all the facts.  And I

14     would also like to think that this passion to know the facts, this

15     "agony," as Judge Bonomy put it, also indicated that after some 20 months

16     of trial, the Trial Panel was still struggling at that time with the

17     question of whether the Prosecution had produced sufficient evidence of

18     guilt beyond a reasonable doubt.

19             And it is now our strong submission that after two years of

20     trial, no evidence of guilt beyond reasonable doubt has been presented

21     against General Ojdanic.  General Ojdanic is here because on May 24th,

22     1999, while the bombs were still falling on Belgrade and Kosovo, the ICTY

23     Prosecutor, Louise Arbour, decided to indict some of the top officials of

24     the FRY, political, and military leadership, including General Ojdanic.

25     We can only surmise that this discussion by Ms. Arbour while the war was

Page 27103

 1     still ongoing was based on the proposition that because the alleged

 2     expulsion of many thousands of Kosovo Albanians was widespread all across

 3     Kosovo, it must have been the result of a plan, a joint criminal

 4     enterprise.  In fact, there was no evidence that General Ojdanic bore

 5     criminal responsibility when he was initially indicted in May 1999, and

 6     there is no evidence of it now, some nine years later.  And it is our

 7     submission that the Prosecution has gotten it very badly wrong in this

 8     case from day one of the indictment to the present time.

 9             What I would like to do now is examine the evidence, first as to

10     General Ojdanic's statements and conduct prior to the war during the

11     period when he was deputy Chief of the General Staff, followed by his

12     appointment as Chief of the General Staff, and, finally, the evidence

13     concerning his conduct during the war.  Of course, we'll be discussing

14     this evidence in the light of the well-recognised legal principle that in

15     order for General Ojdanic to be found guilty, the inference to support

16     guilt must be the only reasonable inference available from the evidence.

17     It is our submission that with respect to every major factual allegation

18     in this case, there are inferences to be drawn which are equally, if not

19     more consistent, with General Ojdanic's innocence.

20             I would like to start our decision with what the Prosecution has

21     to say about the appointment of General Ojdanic to replace General

22     Perisic as Chief of Staff -- Chief of the General Staff in November 1998.

23     The Prosecution has claimed throughout in its pre-trial brief, opening

24     statement, and now in its closing brief and argument, and particularly

25     its closing brief, that General Ojdanic and other appointees at that time

Page 27104

 1     were seen as individuals who were willing to follow the course intended

 2     by Mr. Milosevic in terms of solving the -- in the spring of 1999 the

 3     Kosovo problem, the Kosovo problem being ethnic imbalance.

 4             This claim by the OTP is grossly unfair to General Ojdanic as a

 5     man, as a soldier, and as chief of the army's General Staff.  The

 6     testimony from a number of witnesses at this trial - and I'm not going to

 7     repeat it here; it's set forth in our brief - but this testimony makes it

 8     abundantly clear that General Ojdanic from his very early days in the

 9     army and throughout the war harboured no prejudice against ethnic

10     Albanians, let alone that he was part of a joint criminal enterprise to

11     change the ethnic balance in Kosovo.

12             Prior to being appointed as Chief of the General Staff in

13     November 1998, General Ojdanic was the deputy Chief of Staff, second in

14     command, and next in line to be Chief of Staff.  Moreover, General

15     Ojdanic was not close to Mr. Milosevic.  Mr. Milosevic specifically

16     stated that he was "less well acquainted with General Ojdanic" when he

17     was being considered for the position as Chief of Staff to replace

18     General Perisic.  Mr. Milosevic's comments are contained in the minutes

19     of the Supreme Defence Council of November 24th, 1998, and that reference

20     is to Exhibit P1576 at page 4.

21             Rather than a decision of Mr. Milosevic based on the personal

22     contacts, his personal contacts or knowledge of General Ojdanic, these

23     minutes make it clear that the decision to appoint him was solely because

24     of his qualifications, as these minutes stated, and I quote:  "General

25     Ojdanic, when he was the commander of the 1st Army, conducted an

Page 27105

 1     anonymous poll among the officers subordinate to him.  This questionnaire

 2     had 36 items and the results showed that his results with his

 3     subordinates were very high in many elements.  He holds a masters degree

 4     in military science.  This is an extremely honourable and good general."

 5             Much has been made by the Prosecution in this case, throughout

 6     this case, and particularly in its closing brief, that somehow General

 7     Ojdanic was a so-called hard-liner, as opposed to the more restrained

 8     conduct and policies of his predecessor, General Perisic, another OTP

 9     misconception that finds no support in the evidence.

10             Let's look at the record on this.  And as we look at the record

11     I'm reminded, Judge Chowhan, of a comment you made over a year ago on May

12     4th, 2007, to Mr. Hannis, and you said at that time:  "Mr. Hannis, I have

13     a question, a little digression from all the seriousness in this.  And

14     while arguing, you pointed out, you mentioned about the professional

15     army's role against rogue soldiers.  And I immediately was reminded of

16     "Arms and the Man," by Bernard Shaw, and that also pertains to the

17     Balkans.  Is there any relevance when he calls those he met chocolate

18     creamed soldiers, any relevance to that?"  Mr. Hannis said, "I'm not

19     sure, Your Honour."  Judge Chowhan said, "Okay.  Thank you."  Mr. Hannis

20     said, "Thank you."

21             Well, I probably would have given pretty much the same answer as

22     Mr. Hannis did at that time.  I read "Arms and the Man" many years ago,

23     but I went back to it after you mentioned it, Judge Chowhan, and I think

24     there is one theme in this play by George Bernard Shaw that resonates

25     deeply in this case.  The play takes place in Bulgaria in 1885 during a

Page 27106

 1     war between Bulgarians and Serbs.  A Swiss professional soldier, Captain

 2     Bluntschli, had been fighting on the Serb side and is fleeing from the

 3     Bulgarians.  This officer carries chocolate in the pockets of his uniform

 4     instead of bullets and pistols.  And a light opera called "The Chocolate

 5     Soldier" was later based on the events in Shaw's play.

 6             So why do I mention this?  I mention it because, as we will show,

 7     the conduct of General Ojdanic far from being the hard-liner portrayed by

 8     the Prosecution was precisely the opposite.  The trial record in this

 9     case repeatedly shows that when confronted with the choice between war

10     and peace, between bellicosity and compromise, between bravado and

11     restraint, General Ojdanic invariably chose the alternative that would

12     lead to peaceful resolution and not further conflict.  There are numerous

13     examples of this.  I won't repeat the many collegium references cited in

14     our closing brief beginning as early as 26 September 1997 when General

15     Ojdanic was the deputy Chief of the General Staff.

16             General Ojdanic at that time and throughout his tenure as Chief

17     of the General Staff repeatedly emphasized the futility of the war option

18     and the necessity to look for political and diplomatic solutions.  As

19     General Ojdanic said in the collegium of 4 May 1998, as just one of many

20     examples:  "The shortest and fastest way to lose Kosovo is by war."

21             And I think it appropriate here to mention General Ojdanic's

22     comments to his colleagues when he first took over as Chief of the

23     General Staff on 27 November 1998.  And he said at that time, and I

24     quote:  "To what extent I am a hard-liner, how blind or loyal I am, my

25     position on resolving the problems in Kosovo and Metohija, I hope that

Page 27107

 1     you know and are witnesses of my participations in the meetings of the

 2     collegium if nothing else.  Rest assured that in your colleague who has

 3     been given the difficult task of leading you, you have a man above all

 4     who thinks with his own head and who is his own man.  This is how I've

 5     been and I remain so, and I have no intention to nor can I change at this

 6     very late stage of my career."

 7             And I think that this independence of mind is no better revealed

 8     than by General Ojdanic's comments to the collegium on 15 December 1997,

 9     3D1076, when he said, and I quote:  "During my most recent trip to

10     Kosovo, I met a large number of Serbs in whose heads only the war option

11     is present non-stop, and fools like these can lead us into a war, but I

12     will not stand behind them."

13             As this Trial Chamber knows, there's considerable macho posturing

14     during periods of tension and conflict, and it would have been relatively

15     easy for General Ojdanic to just avoid commenting on the war-mongering of

16     what he then called these Serbian fools.  He made these comments before

17     his colleagues on the General Staff, and I think that comments such as

18     these may well have been on his mind when some 11 months later he became

19     Chief of the General Staff and reminded his colleagues that they knew the

20     kind of man he was from their prior collegiums together.

21             This same spirit of both independence of thought and working for

22     peaceful resolution to problems was also demonstrated by General Ojdanic

23     on how he proposed to deal with the members of the Kosovo Verification

24     Mission, the KVM, following the October 1998 agreements.  Again, I won't

25     repeat the abundance of evidence cited in our closing brief, but two

Page 27108

 1     brief citations to the collegium are illustrative.

 2             In the collegium of 17 December, 1998, General Ojdanic stated,

 3     and I quote:  "The members of the verifier group all have diplomatic

 4     status and that is how they should be approached.  There should be no

 5     forms of crudeness shown to them.  This is the least painless form of

 6     intrusion, and we should not give them a reason to withdraw," 3D494,

 7     page 2.

 8             Then one week later on 24 December 1998 General Ojdanic said to

 9     the collegium with respect to the KVM:  "All commanding levels should

10     study the Security Council resolutions and agreements and demand that

11     they be strictly observed.  Nobody in the army has the right to violate

12     these agreements.  Adventurism or false patriotism which results in

13     wilful behaviour which goes against the resolutions or agreements must be

14     severely sanctioned because such behaviour could have fatal consequences

15     for both this country and its people," P924, page 27.

16             And I believe it most appropriate at this point to refer the

17     Trial Chamber to the testimony of Canadian General Michael Maisonneuve.

18     The Trial Chamber will recall that General Maisonneuve was a high-ranking

19     member of the KVM in Prizren, and at one point briefly became the

20     operational head of the KVM in the absence of General DZ.  General

21     Maisonneuve testified about a memorandum prepared in late December 1998

22     by a British officer named David Wilson.  David Wilson worked for

23     Maisonneuve as an intelligence officer.  He was characterized by General

24     Maisonneuve as an astute person who had good knowledge of what was

25     happening on the ground.  And if the Trial Chamber would bear with me I

Page 27109

 1     think it important to quote the following colloquy from my

 2     cross-examination of General Maisonneuve:

 3             "Q.  And my last question for you, General, is that memo that the

 4     same David Wilson, who I think you consider a fairly astute guy,

 5     prepared.  It's attached to your statement and I ask you about it only

 6     because in your statement you said you think it's an accurate assessment

 7     of the Kosovo situation."

 8             And General Maisonneuve's answer was:  "Generally accurate,

 9     generally accurate."

10             I went on:

11             "Q.  I have hesitate to use it because it is one man's opinion

12     and, you know, he could be right, he could be wrong.  But I'm going to

13     ask you about one small part, and this gets back to the simple soldier,"

14     and you recall I was asking General Maisonneuve to give us the soldier's

15     point of view, "gets back to the simple soldier if I might I say.

16             And here's what he says.  Talking about the VJ, he says quote -

17     this is from the British officer's report - quote:  "The key group

18     obviously are the professional officers," talking about once again the

19     army, the VJ, and the SNCOs, the non-commissioned officers, and General

20     Maisonneuve says "senior non-commissioned officers."

21             My question:  "Right."

22             Then continuing with the report of David Wilson:  "From their

23     point of view, they are frustrated, contemptuous of the the political

24     manoeuvrings, angered at the double humiliation of being scrutinised, the

25     word "scrutinised" is in quotes, "scrutinised by foreign observers in

Page 27110

 1     their own land and being required to observe a cease-fire against

 2     terrorists, and skeptical, skeptical about the prospects of a policy

 3     settlement.  While the analogies with Western forces can easily be

 4     overdone, it is comparatively easy for any soldier to understand their

 5     emotions."

 6             "Q.  Now, David Wilson was a soldier, was he not?

 7             "A.  He was.

 8             "Q.  And, obviously, sir, you're a very high-ranking and

 9     distinguished soldier.  Do you think there's truth in what he has to say?

10             "A.  Absolutely.  I think it accurately reflects the feelings

11     from Colonel Delic on down, to probably soldiers on the ground -- of

12     soldiers on the ground of the VJ sources."

13             Transcript 11127-128.

14             And I venture to say that General Ojdanic at the least must have

15     had the same understanding of the emotions of the VJ officers and NCOs,

16     and that, in our view, is what makes even more admirable his insistence

17     on what he regarded as his clear duty to fully cooperate with the KVM,

18     lest cooperation might lead to NATO bombing and war.  This even though he

19     also knew that his policy of strict cooperation with the KVM might well

20     be resented by not an insignificant portion of his officers and senior

21     non-commissioned officers.

22             This same pattern and preference of General Ojdanic for

23     compromise and conciliation with the KVM, instead of confrontation, was

24     shown in a number of other ways.  The Trial Chamber will recall that

25     General Ojdanic, while still the deputy Chief of Staff, urged that,

Page 27111

 1     following the KVM agreements in October 1998, all of the VJ combat groups

 2     should be withdrawn to barracks, thus arguing for even more of a

 3     restriction than the three company-sized units allowed in the field by

 4     the agreement.  You can see the collegium of 23 October 1998, 3D645, at

 5     page 4.

 6             The Trial Chamber will also recall that General Ojdanic arranged

 7     for daily rather than weekly reports to the KVM.  He also continued to

 8     increase the number of VJ personnel assigned for cooperation with the KVM

 9     mission, including an increase in the number of English-speaking

10     officers.

11             Having said all this about General Ojdanic's obvious good faith

12     in dealing with the KVM and despite what we regard as an almost fanatical

13     devotion to cooperation with the KVM, the OTP makes a series of

14     misleading claims on this issue as set forth in paragraphs 776 to 782 of

15     its brief.

16             Just about all the OTP's contentions have been addressed in our

17     brief at paragraphs 170 to 185 on General Ojdanic's cooperation with the

18     KVM and paragraphs 64 to 83 on the specific subject of Podujevo as it

19     relates to the KVM.  One matter not addressed in our brief to which I now

20     turn is the claim made by the OTP in paragraph 780 that allowing the MUP

21     to keep heavy weapons was a breach of the agreement.  This was also

22     mentioned by Mr. Hannis in his oral argument.

23             I note first that this matter actually dealt with the Vienna arms

24     control agreement and not the October Agreements.  There's still an

25     obligation to comply.  I'm just making a distinction, though, between the

Page 27112

 1     Vienna arms control versus the October agreements.

 2             And in the collegium of 3 December 1998, General Obradovic had

 3     made the suggestion that the heavy equipment could be listed as being

 4     with the VJ or as being temporarily with the MUP.  There was no

 5     suggestion that the equipment should be concealed.  The OTP citation of

 6     General Ojdanic's comment that he was "not for either one or the other"

 7     is out of context.  Just before his comment, General Ojdanic actually

 8     stated as follows:  "Put this problem on paper with brief information and

 9     proposal.  With regard to these two issues, I will first try with the

10     minister, and after that I must seek the FRY president's position,"

11     3D557, page 20.

12             And, indeed, immediately after General Ojdanic's comment, General

13     Grahovac stated that it was not General Ojdanic but the state who was a

14     signatory to the agreement who would ultimately decide the issue.  For

15     the OTP to say in paragraph 780 of its brief that General Ojdanic "was

16     clearly unconcerned" about a breach of the agreement is just not so.

17             We also note the testimony on this point of General Obradovic at

18     TR14977-78 who testified that following this collegium of 3 December

19     1998, full information was provided by the VJ in compliance with

20     Article 4 of the Vienna Agreement.

21             Finally, on the question of cooperation with the KVM, the OTP in

22     paragraph 777 takes note of General Ojdanic's initial agreement to KVM

23     inspection of barracks.  That agreement, by the way, was not the view of

24     General Perisic who, as General Obradovic testified, opposed the

25     authority of the authority to enter barracks; that's at transcript 15034.

Page 27113

 1     The reason that barracks inspection did not take place as stated in the

 2     OTP brief at paragraph 777 is that, and I quote now from the OTP brief:

 3     "Sainovic firmly rejected the KVM's plans for inspections and he was the

 4     only individual authorised to permit inspection."

 5             From this, the OTP deduces in its brief that "once again, it is

 6     clear that Ojdanic supported a fellow JCE participant, this time

 7     Sainovic, in furthering the JCE."

 8             So we have now reached the point, according to the OTP, that a

 9     general is supposed to contest the decision of a civilian authority on a

10     legitimate matter of interpretation; and if not, then the general is

11     supporting a joint criminal enterprise.  Ridiculous in the extreme, I

12     respectfully suggest.

13             I wanted to pause here to discuss the significance of the pre-war

14     evidence, including cooperation with the KVM, that we've been talking

15     about as it bears on General Ojdanic's intent.  It is, after all, part of

16     the Prosecution's theory that at least as early as October 1998, the

17     joint criminal enterprise to expel Kosovar Albanians came into being.

18     That being so, the OTP presumably would point to alleged non-cooperation

19     with the KVM as evidence that the VJ and General Ojdanic were violating

20     their international obligations and that this state of mind carried over

21     to the war period.

22             I think it might help our analysis here if we briefly refer to

23     the trial testimony of General Dimitrijevic concerning the KVM.  General

24     Dimitrijevic said as follows at 26733-34:  "My knowledge from this period

25     is as follows:  I remember some of the details even today that 90 per

Page 27114

 1     cent of the verification mission were active-duty officers of the armies

 2     that took part in the setting up of the mission, except that they were

 3     not in uniform and they all came from intelligence structures from the

 4     intelligence community; that is to say, we had quite a few cases when we

 5     realized that members of the verification mission were actually

 6     transferring weapons and providing information about the Army of

 7     Yugoslavia."

 8             So, really, they sided with the Albanian terrorists.  At the same

 9     time, they asked and in many cases they actually overstepped, they went

10     beyond their mandate, and they asked for information that they were not

11     authorised to ask about.

12             And along these same lines of General Dimitrijevic's mistrust of

13     the KVM, the Trial Chamber will recall the report of British army officer

14     David Wilson as just cited in the testimony of General Maisonneuve, that

15     VJ officers were "angered by the double humiliation of being scrutinised

16     by foreign observers in their own land and being required to observe

17     cease-fire with terrorists who were not even a party to the agreement,"

18     which has some relevance, I think, Judge Nosworthy, to comments you made

19     the other day.

20             As I hope we've shown, General Ojdanic strongly resisted this

21     built-in opposition to the KVM even from some of his close associates

22     with full realization and appreciation for the potential of bombing and

23     war that eventually occurred, but I ask this question:  What if General

24     Ojdanic had not been as cooperative with the KVM as he was?  Does

25     mistrust of the KVM, as clearly expressed by General Dimitrijevic and

Page 27115

 1     even relative non-cooperation with the KVM because of this mistrust,

 2     necessarily equate with an intent to change the ethnic balance in Kosovo

 3     by forcibly expelling Kosovar Albanians?  I think that to ask this

 4     question is to answer it.

 5             And as we go along, I think that this is one of the relevant

 6     questions to ask with respect to the resolution of each of the factual

 7     sets of issues that are before us.  For example, the OTP claims that

 8     because he sent troops to Kosovo and March of 1999, General Ojdanic

 9     facilitated the joint criminal enterprise.  But the build-up of troops,

10     in our submission, has another even more reasonable explanation; that is,

11     preparing to defend against both KLA and potential NATO attack.  And as

12     we've already noted, the inference to support guilt must be the only

13     reasonable inference available from the evidence.

14             I'd like to turn now to another instance of the pre-war conduct

15     of General Ojdanic, and that is the proposition that it was General

16     Perisic who presumably against the wishes of Mr. Milosevic was in favour

17     of the limited use of the army and that absent a declaration of a state

18     of emergency, the army should not be used to conduct anti-terrorist

19     operations.

20             As we pointed out in our brief, this is not the time for a

21     parliamentary debate on this subject; but at the least, the constitution

22     and army rules of service make it clear, as I believe Professor Markovic

23     testified, that there was ample basis to support the conclusion that the

24     use of the army was justified in carrying out anti-terrorist operations

25     without the need to declare a state of emergency.

Page 27116

 1             Now, where did General Ojdanic stand on this question?  Contrary

 2     to the claim of the OTP, the fact is that General Ojdanic shared General

 3     Perisic's view of the limited use of the army and, indeed, was equally if

 4     not more restrictive than General Perisic on this issue.  Let me first

 5     illustrate this point with some documentary evidence that has not yet

 6     been discussed in the briefs.

 7             I refer the Trial Chamber to the collegium of 26 October 1997

 8     when General Ojdanic was the deputy Chief of Staff at a time when there

 9     are meetings and demonstrations by groups in what were deemed radical

10     antigovernment actions.  Here's what General Ojdanic said at the time:

11     "During demonstrations, limit the use of military motor vehicles to a

12     necessary minimum; prohibit the use of vehicles at night except when the

13     brigade commander judges it necessary.  In this period, cancel all

14     planned activities which require large-scale movements and the engagement

15     of VJ forces.  In addition to what I have said, I believe that the order

16     should strictly prohibit any actions and conduct of VJ commands and units

17     exceeding the constitutional role and tasks of the VJ and which would

18     irritate our public and the international public in particular," 3D1074,

19     page 23, an early recognition of not irritating the international public

20     because he knew what trouble that could eventually and did, indeed, lead

21     to.

22             Now, immediately that comment by General Ojdanic, here's what

23     General Perisic had to say:  "All right.  Anybody else?  Do you have

24     anything to say regarding the organizational groups under your command?

25     There are contradictory opinions regarding the viewpoint that the VJ

Page 27117

 1     should not irritate, just as Ojdanic has said, and there are opinions

 2     that the army should directly demonstrate for us; that is to say, plan

 3     and carry out activity in Kosovo with the aim of discouraging by

 4     demonstrating force."

 5             Now, as General Perisic said, there were contradictory opinions

 6     to General Ojdanic about the use of force.  So this is an early example

 7     in October 1997 of General Ojdanic's continuing policy of restraint in

 8     the face of provocation, just as he denounced Serbian war-mongering

 9     fools, as he put it, at a collegium a few months later in December 1997

10     and as he did a year later in December 1998 when he was the army Chief of

11     Staff and strictly prohibited adventurism in false patriotism by any

12     members of his staff in dealing with the KVM.

13             There are a number of other examples of General Ojdanic's policy

14     of limiting the use of the army while he was the deputy Chief of Staff.

15     At the collegium of 10 April 1998, General Ojdanic said:  "As far as our

16     engagement in the curbing of the armed rebellion according to the plans

17     at our disposal we have, they must be carried out after the decision has

18     been made by the competent organs," 3D657, page 2.  This echoed the

19     policy of General Perisic.

20             In the collegium of 10 July 1998 when he was the deputy Chief of

21     Staff General Ojdanic:  "As concerns certain views according to which we

22     should extend the scope of the army's engagement on certain tasks, I do

23     not agree with that, General.  In particular, when this concerns the

24     protection of the population, we should not embark on that position.  We

25     have the Serbian MUP forces for that," 3D641, page 2.  Later on in that

Page 27118

 1     same collegium pages 2 and 3, General Dimitrijevic stated:  "When it

 2     comes to protection of the population in over 200 villages, that part is

 3     going on in an organized fashion."

 4             General Ojdanic had a response to that comment of General

 5     Dimitrijevic, showing an even more restrained view of the use of the VJ.

 6     General Ojdanic said:  "I do not know what Aco," that's General

 7     Dimitrijevic, "I do not know what Aco means by the protection of the

 8     population.  It is completely natural to assume that if we positioned a

 9     certain number of units deep within Kosovo and Metohija, that their

10     purpose is predominantly to provide psychological support to the

11     population and I think that the direct use of units is a very sensitive

12     issue."

13             In his military expert report, General Radunovic concluded from

14     this college of 10 July 1998 that:  "General Ojdanic opposes this direct

15     use of the VJ for the defence of civil population and settlements, for

16     that would surely lead to a general war in Kosovo and Metohija," 3D1116,

17     paragraph 25, page 78.

18             I'm happy to go on, Your Honour, but this might be an appropriate

19     time for a break.  I think we're fairly close.

20             JUDGE BONOMY:  Thank you, Mr. Sepenuk.

21             We shall adjourn now until tomorrow at 9.00, when your

22     submissions will continue.

23                           --- Whereupon the hearing adjourned at 3.29 p.m.,

24                           to be reconvened on Friday, the 22nd day of

25                           August, 2008, at 9.00 a.m.