Tribunal Criminal Tribunal for the Former Yugoslavia

Page 27119

 1                           Friday, 22 August 2008

 2                           [Defence Closing Statement]

 3                           [Open session]

 4                           [The Accused Lazarevic not present]

 5                           [The accused entered court]

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

 7             JUDGE BONOMY:  Good morning, everyone.  We continue this morning

 8     to hear the closing arguments for Mr. Ojdanic presented by Mr. Sepenuk.

 9             MR. SEPENUK:  Thank you, Your Honour.  Your Honours, yesterday we

10     were talking about General Ojdanic's advocacy of the limited use of the

11     army, his belief that the MUP should be used to protect the population,

12     and his belief, similar or if not more restrained, than that of General

13     Perisic and General Dimitrijevic concerning the constrained use of the

14     army, lest [Realtime transcript read in error "less"] that lead to war,

15     and in his military expert report, General Radinovic concluded from the

16     collegium of 10 July 1998 that, "General Ojdanic opposes this direct use

17     of the VJ for the defence of the civilian population in settlements, for

18     that would surely lead to a general war in Kosovo and Metohija."

19             By the same token in a collegium of 19 June 1998, General Ojdanic

20     stated that with respect to the establishment of a reserve army unit in

21     Serbia proper to possibly assist in operations in Kosovo, he said, "I

22     don't think that we could take a unit from Serbia and send it down there

23     without a decision by responsible organs."  That's P921 at page 15.

24             In the collegium of 24 August 1998, 3D513, General Dimitrijevic

25     stated that the VJ was then "being engaged quite extensively" with the

Page 27120

 1     MUP and anti-terrorist operations.  General Dimitrijevic was concerned

 2     about that because he thought it "could be quite a strong reason to

 3     decide to launch air-strikes."  That's at page 11.

 4             General Ojdanic, after noting that in his opinion VJ units "are

 5     engaged too much outside the border area" at page 13 said as follows:

 6     "General Aco," meaning General Dimitrijevic, "was right to ask that

 7     question and that is about the extensive use of the VJ working with the

 8     MUP.  And he goes on to say, "It turned out that throughout this

 9     territory, that is in inland areas which are practically areas of fields,

10     it's Yugoslav army units which are in charge which in view of the remarks

11     made here is not good."

12             General Ojdanic then specifically agreed with General

13     Dimitrijevic that in view of these developments air-strikes could be

14     "nearing fast" as he put it and warned against this more extensive use of

15     the VJ working with MUP and anti-terrorist operations.

16             And the Trial Chamber will recall the testimony of General

17     Dimitrijevic in an answer to a question by Judge Bonomy.  General

18     Dimitrijevic stated that before both and after becoming Chief of the

19     General Staff General Ojdanic "insisted that the army should be in the

20     function provided by the constitution and bylaws."  So I don't think he

21     differed on that score either, namely that the worst way of using the

22     military was exactly the way it was being used.

23             Judge Bonomy, not being satisfied that this answer was specific

24     enough to his question further stated, "Was he, General Ojdanic, against,

25     as you were, the extensive use of the military in the fight against

Page 27121

 1     terrorism?"  General Dimitrijevic responded, "I think he was,

 2     Mr. President."  That's at TR 26732.

 3             And that is indeed what the record shows.  This makes even more

 4     nonsensical the OTP's baseless claim in paragraph 768 of its brief that

 5     "On 25 December 1998, Ojdanic proposed the removal of 3rd Army commander

 6     Samardzic who had been critical of the VJ's role in internal operations."

 7             The record references cited by the OTP do not support that

 8     declaration, and it's clear in any event that General Ojdanic was solidly

 9     in line with General Perisic and General Dimitrijevic on the VJ's limited

10     role in internal operations.  And I think the Trial Chamber will recall

11     that General Samardzic became the Chief Inspector of the army.  He took a

12     very active part in the collegiums after leaving as commander of the

13     3rd Army.  That, I don't believe in any way was a demotion for him as

14     implied by the OTP.

15             The short of it is that the Prosecution is wrong when it asserts

16     that General Ojdanic was someone who was willing to use the army in a

17     less limited and restrained manner than advocated by General Perisic or

18     for that matter General Dimitrijevic.  As we have shown, the truth is to

19     the contrary, and there is no evidence which indicates that

20     General Ojdanic, when he became chief of staff, was any more willing to

21     use the VJ than was absolutely necessary to repel KLA provocations and

22     attacks and to prepare for NATO air attacks or a potential land invasion.

23             And I won't repeat here the extensive evidence cited in our brief

24     concerning the members of the General Staff uniformly testifying that

25     there was no change of policy when General Ojdanic succeeded

Page 27122

 1     General Perisic as the army's chief of staff.

 2             Turning to another area.  The OTP alleges that General Ojdanic

 3     pre-war attempt to violate international agreements is shown by the

 4     actions taken by him to deal with KLA provocations and operations during

 5     the period when he was the deputy chief of staff.  Again, we suggest that

 6     the OTP has it wrong.  I believe the most logical place to start this

 7     discussion is the collegium of 10 July 1998, which is 3D641.  At that

 8     time, General Ojdanic stated, page 2:  "As far as an anti-terrorist

 9     operation is concerned, I am not aware of such an operation, but I would

10     like to stress that since General Dimitrijevic, and we all know that

11     military and diplomatic representatives are now permanently stationed in

12     the area, they will carefully record all developments in Kosovo and

13     Metohija, including the engagement of the units of the Serbian MUP and

14     the Yugoslav army."

15             So as late as 10 July 1998, General Ojdanic, as he put it, "was

16     not aware of such an anti-terrorist operation."  And the reason that he

17     was unaware of this operation was made known by the immediately following

18     speaker at that collegium, General Dimitrijevic, who said, "As far as

19     anti-terrorist activities are concerned, they are being carried out too,

20     and taking all these things into consideration they have been planned so

21     that the MUP forces never appear as initiators but always responding to

22     attacks.  I said nothing about this, yet it is already being done down

23     there."

24             So there it is in a nutshell, Your Honours.  Dimitrijevic stating

25     that he had said nothing about an anti-terrorist operation, thereby

Page 27123

 1     confirming the evidence we've heard in this trial that General Ojdanic

 2     knew little, if anything, about such an operation until the day of that

 3     collegium, 10 July 1998.

 4             The Trial Chamber will also recall the evidence concerning

 5     General Ojdanic's complaint that he was not kept advised about combat

 6     operations, and the testimony of General Radinovic, the military expert,

 7     that General Ojdanic had a rather cold relationship with General Perisic,

 8     not helped at all by General Perisic's veto of General Ojdanic's proposed

 9     Ph.D. thesis on a military subject that was, at least according to

10     Radinovic, worthy of respect.

11             Both in his testimony and expert report General Radinovic

12     confirmed General Ojdanic's lack of awareness of both combat and

13     anti-terrorism operations, that's 3D1116, pages 77, 79, as did General

14     Obradovic, who testified that General Ojdanic did not attend any meetings

15     or sign any documents pertaining to either the promulgation of the 28

16     July 1998 anti-terrorism directive of General Perisic or its execution.

17     That's at 14942-43.

18             I think it's fair to say that before becoming chief of staff the

19     primary, if not the only significant reference by General Ojdanic to

20     anti-terrorist activities came when, as the deputy chief of staff,

21     General Ojdanic briefed the military attaches on 27 August 1998, a

22     meeting attended by Colonel John Crosland.  This is another area where

23     both the Prosecution and Colonel Crosland got a wrong.

24             It was the long-time position of Colonel Crosland, from the time

25     of his first statement to the OTP in 1998 and continuing through both the

Page 27124

 1     Milosevic trial and this trial, that he had shown a video to

 2     General Ojdanic including joint attacks on Albanian villages by combined

 3     VJ and MUP forces.

 4             During the trial Ms. Carter for the Prosecution asked

 5     Colonel Crosland:

 6             "Q.  Just to be clear on the time line, prior to your handing the

 7     video over to Ojdanic and saying 'look, this is a joint operation, what

 8     was the party line in regards to whether the MUP and the VJ were acting

 9     separately or together.'

10              "A.  "The party line on the whole was that there was -- there

11     was no collusion between the VJ and the MUP.

12              "Q.  Okay.  At the point that you then hand the video to Ojdanic

13     and put it to his face, is that when the party line changes and there's

14     acknowledgement on behalf of the VJ as a whole that there are joint

15     operations?

16              "A.  I think there was.  No, I don't think there was.  There was

17     a resignation that they had been given factual evidence that was correct

18     and difficult to refute but they didn't wish to acknowledge that evidence

19     per se."

20             That's at 9789, 9790.

21             We now know that Colonel Crosland finally admitted during my

22     cross-examination that he did not show this video to General Ojdanic

23     personally, contrary to his prior statements and testimony but, rather,

24     he had "probably" given the video to Colonel Negovan Jovanovic, the

25     officer in charge of liaison duties with military attaches.  That's at

Page 27125

 1     9891.

 2             The Trial Chamber will also recall the firm testimony of Colonel

 3     Jovanovic that no such video was shown either to him or any member of his

 4     staff.  That's at 14911.

 5             And when I think of the word agony used by you, Judge Bonomy, in

 6     describing whether or not to admit the Perisic written interview, think

 7     of the agony experienced by General Ojdanic, knowing for all these years

 8     that the written statement given by Colonel Crosland and his trial

 9     testimony was either mistaken or false, however you want to characterise

10     it.  Think of how he felt, how General Ojdanic felt when Ms. Carter

11     rather bluntly asked Colonel Crosland about "putting the video to

12     Ojdanic's face."

13             What makes this matter even more sobering was Crosland's finally

14     admitting that he did not give the video to General Ojdanic.  It happened

15     purely by chance, as Judge Bonomy noted at the time.  It had nothing

16     whatever to do with the skill of my cross-examination but was just a

17     piece of good fortune.  And that again shows how easy it is to get it

18     wrong and the fragility of our criminal justice system.  You will also

19     recall that Colonel Crosland further admitted, contrary to his earlier

20     written statements and testimony in the Milosevic trial, that Mr. Paddy

21     Ashdown did not show General Ojdanic photos of joint VJ/MUP operations in

22     the fall of 1998, but Colonel Crosland did testify under oath erroneously

23     in that respect at the Milosevic trial, and in that case there was no

24     calling it back.

25             Again on the subject of General Ojdanic's pre-war intent, I would

Page 27126

 1     like now to turn to the Prosecution's argument that General Ojdanic knew

 2     of crimes committed by FRY and Serb forces operating in Kosovo in 1998

 3     when he was the deputy chief of staff.  That's OTP paragraph 787-788.

 4             According to the Prosecution, this made General Ojdanic aware

 5     that the units allegedly committing such crimes would continue to commit

 6     them during the indictment period.  The fact is, however, that the

 7     Prosecution did not prove the commission of any specific crimes by Serb

 8     forces in the year 1988 [sic], let alone that General Ojdanic knew of

 9     such alleged crimes.  The only two paragraphs of the OTP brief devoted to

10     this issue, 787, 788, do not mention the commission of crimes by Serb

11     forces but at most the excessive use of force.

12             In paragraph 787, the Prosecution talks not about crimes but,

13     rather, the evidence of Colonel Crosland at the 27 August 1998 defence

14     attache briefing that excessive force was allegedly used by combined

15     VJ-MUP forces in the Prilep-Glodjane area which had created a

16     humanitarian crisis to which General Ojdanic agreed.

17             We have already discussed the alleged use by Serb forces of

18     disproportionate force on pages 52 to 62 of our brief.  In addition,

19     General Ojdanic's comments at the Defence attache meeting in August 1998

20     that "force would be met with force" was made necessary by an increasing

21     KLA threat that was commensurate with the situation.  Colonel Crosland

22     testified that from a military point of view this made sense at

23     transcript 9803.

24             The other paragraph in the OTP --

25             THE INTERPRETER:  Could the counsel please slow down a bit for

Page 27127

 1     interpretation.  Thank you.

 2             MR. SEPENUK:  Thank you very much.

 3             The other paragraph in the OTP brief on the alleged commission of

 4     crimes in 1998 is also concerned not with crimes but with the

 5     "international community's expressed concern about the level of violence

 6     in Kosovo."  That's paragraph 788 of the Prosecution's brief.

 7             The statement is made in the OTP brief that "Ojdanic was aware of

 8     these concerns via HRW reports," paragraph 788.  This is another major

 9     stretch to the breaking point by the OTP.

10             As evidence of General Ojdanic's awareness, the OTP refers to a

11     letter of 20 July 1998 sent by Human Rights Watch to various Serbian

12     government departments including the VJ.  The Trial Chamber may recall

13     that Mr. Fred Abrahams testified about sending this letter.  The letter

14     is P544, which is faxed to the VJ, care of the "Kosovo -- Kosovo command

15     Information Service," and which contained general requests for

16     information about VJ forces, some of which pertain to obviously

17     confidential information.

18             The letter was sent during a vacation period, and the recipient,

19     whomever it may have been, was given ten days to reply at a time when the

20     VJ had its hands full in combatting terrorist activities.  There's

21     absolutely nothing in this letter, as you will see when you look at it,

22     which supports the OTP claim that General Ojdanic, then the deputy chief

23     of staff, ever received or looked at this letter or was made aware of the

24     letter.

25             Rather than spend more time on this I would simply refer the

Page 27128

 1     Trial Chamber to my cross-examination of Mr. Abrahams at pages 892 to 899

 2     which I believe gives you perhaps more than you would ever want to know

 3     on this subject, which is really of no substance to the case and should

 4     not have been mentioned at all by the OTP except as another illustration

 5     of the weakness of its case.

 6             Another matter that we must mention in the interests of getting

 7     it right is the OTP's misleading claim which quotes some comments of

 8     General Andjelkovic who was the General Staff's chief of sector for

 9     communications and electronic operations.

10             General Andjelkovic states as follows at a collegium of 2

11     February 1999, and this is quoted by the OTP in its brief at paragraph

12     260.  The quote says:  "If it is true that the subordinates are doing

13     what they shouldn't be doing and sending us reports saying that they did

14     not do it and we have adequate or accurate information that they did not

15     do it -- that they did do it and that nobody has been held responsible, I

16     cannot possibly accept that, and I think that people are right when they

17     raise the question of our competence."

18             The OTP presumably implies by offering this comment of General

19     Andjelkovic that this refers to some failure to report a crime or some

20     other improper similar conduct.  What the OTP fails to refer to is the

21     specific explanation of this portion of the collegium given by General

22     Andjelkovic in his trial testimony at 16400-401 where he says, this very

23     quote that we're talking about now, he says, "This was about the too

24     liberal use of mobile phones and hand-held radio sets.  We sent out

25     warnings.  We warned subordinate units to try to stop this type of

Page 27129

 1     equipment from being misused.  No one paid any heed, especially the MUP

 2     units.  That's why I raise the issue.  Were we sufficiently competent to

 3     issue an order that would put a stop to this sort of practice, that's

 4     what it was about."

 5             This testimony followed earlier testimony by General Andjelkovic

 6     that the KLA was monitoring movements by FRY forces through conversations

 7     over mobile phones and hand-held sets.  That's TR 16399.

 8             So that was the purpose of General Andjelkovic's comments at the

 9     collegium.  And unless it was just missed by the OTP, it's really

10     difficult to understand why the OTP omitted this explanation from their

11     brief, especially since the OTP gets it wrong again by mentioning the

12     same alleged misreporting in paragraph 835, footnote 2101 of its brief.

13             Now, I'd like to spend a bit more time on the period when

14     General Ojdanic became Chief of the General Staff on 27 November 1998 to

15     the beginning of the war.

16             We know from the evidence that Serbian forces, following their

17     summer offensive against the KLA, had succeeded in recapturing most of

18     the territory previously occupied by the KLA.  We're also aware of the

19     considerable body of evidence starting in the fall of 1998 and continuing

20     to the start of the war in March 1999 that terrorist attacks and

21     provocations continued and indeed escalated in violation of the

22     cease-fire and that the KLA occupied the territory it had previously

23     abandoned.  So these were the harsh realities facing General Ojdanic when

24     he assumed command of the General Staff on 27 a November 1998.  He had to

25     ensure that the VJ fulfilled its responsibilities under the October

Page 27130

 1     agreements and at the same time respond to the continuing threat posed by

 2     the actions and provocations of the KLA and the threat of bombing and

 3     potentially a land invasion by NATO.

 4             We say he responded honourably and humanely in matters large and

 5     small.  Whether it be Podujevo or Racak or his decision not to draft

 6     students of military schools and use them in VJ units, all of which and

 7     much more we have covered in our brief.

 8             Contrary to the arguments of the OTP, we submit that every action

 9     taken by General Ojdanic and the General Staff during this period was a

10     legitimate response to KLA threats and provocations and/or the build-up

11     of potential -- and potential threat from NATO forces.  Again we've

12     covered this in our brief but I do want to mention a few matters.

13             In its brief, the OTP argues in paragraph 744-747, that

14     General Ojdanic supported the policy of arming non-Albanians.

15     Specifically paragraph 744 states that:  "Ojdanic did not reverse but

16     continued the practice of arming non-Albanian civilians despite being

17     informed of the danger they posed."

18             This assertion is entirely erroneous and unsupported by a

19     citation to the evidence in this case.  The fact is that there was no

20     further arming of non-Albanian civilians after General Ojdanic took over

21     as chief of staff.  Further, the OTP twists a good faith effort of

22     General Ojdanic to include armed Serbs in the wartime establishment.  His

23     goal was to bring them into the system so that they could be accounted

24     for instead of operating as freelance soldiers.

25             This issue is discussed in considerable detail in paragraphs 22

Page 27131

 1     to 54 of our final brief.

 2             On Tuesday Mr. Hannis tried to link the indictment crimes to

 3     General Ojdanic by tracing events from General Ojdanic's directive of 16

 4     January 1999, known as Grom 3.  Mr. Hannis then discussed a number of

 5     Joint Command orders and areas of Kosovo where crimes are alleged to have

 6     been committed.  Judge Bonomy asked whether every event Mr. Hannis

 7     described was related to -- to the Grom 3 directive.  Mr. Hannis

 8     responded that this was his position.

 9             We've covered Grom 3 in detail in paragraphs 196 to 203 of our

10     brief.  Our position is simple.  Grom 3 was an entirely legitimate and

11     necessary measure aimed at the significant threats faced by the -- by the

12     FRY.  The Trial Chamber need only look at the words of the directive.  It

13     was not aimed at the expulsion of ethnic Albanian civilians or any

14     criminal act.  The Prosecution has completely failed to relate Grom 3 to

15     the alleged JCE or anything illegal.  Indeed, the parts of Grom 3 which

16     Mr. Hannis seemed to be concerned about, the plan to destroy terrorist

17     forces also appear in General Perisic's directive from the previous

18     summer.  In the event of an attack from NATO, the VJ had to defend the

19     country and fight a war on two fronts.  This has nothing to do with the

20     expulsion of civilians.

21             Similarly with regard to General Ojdanic's directive of 9 April

22     1999, this had nothing to do with the expulsion of Albanian civilians.

23     Quite the opposite.  At the end of our -- of his submissions, Mr. Hannis

24     requested that the Trial Chamber look at events chronologically to

25     understand orders by what else was happening at the time.

Page 27132

 1             We agree, and I refer later to the collegium of the same day when

 2     General -- where General Ojdanic emphasises that refugees should be

 3     allowed to return to their homes.  I also refer later on, a bit later on,

 4     to General Ojdanic's announcement of two days beforehand on April 7,

 5     1999, that Albanians should return to their homes and work together for

 6     peace.

 7             The Prosecution next claims an alleged bad faith VJ troop

 8     build-up in 1999.

 9             The threat to the sovereignty of the FRY by the KLA was severe

10     and has been well documented in this case.  Bislim Zyrapi, the KLA chief

11     of staff at the relevant time, testified that in March 1999 the KLA was

12     17.000, 18.000 members strong and controlled a significant part of the

13     territory of Kosovo.  Leaving aside the ruthless tactics of this

14     terrorist organisation the KLA of course represented a legitimate

15     military target.  Moreover, while the VJ complied with the October

16     agreements, the KLA reoccupied positions previously withdrawn from as

17     they became "more opportunistic," according to General DZ and a host of

18     other witnesses as we've set forth in our brief.  By the way, that "more

19     opportunistic" comment of General DZ is at P2508, paragraph 189.

20             While the threat from the KLA was extremely credible, the

21     potential for a NATO land invasion and/or bombing campaign weighed

22     heavily on the minds of the VJ General Staff.  In the collegium at 18

23     February 1999, in response to the fact that NATO would be increasing

24     troops in Macedonia to 8.000, General Ojdanic explained, "We must defend

25     the country if we are attacked.  Politics and diplomacy will do

Page 27133

 1     everything to resolve by peaceful means if possible."  P937, page 16.

 2             The following month on 11 March General Ojdanic addressed an

 3     argument he expected to see from the West in regards to lack of

 4     compliance with the October agreements.  General Ojdanic said that the

 5     OSCE knew full well, while the VJ had deployed more troops in the area.

 6     He explained that, "NATO is getting 9.500 people on board down there.  We

 7     don't know whether they will use them to invade, but we can't sit here

 8     and be unprepared."  P935, page 1.

 9             In addition, there was credible information that pointed to a

10     collective effort on behalf of the KLA and NATO.  This included but was

11     not limited to the KLA being supplied with weapons by NATO, Exhibit

12     3D1035, paragraph 2.1, and terrorist forces being trained by NATO,

13     Exhibit 3D584, page 2.  The Trial Chamber will also recall the testimony

14     of General Dimitrijevic in this regard.  It's also noteworthy that

15     Prosecution witness John Crosland testified that the international

16     community had a regime change in mind for Kosovo and that the KLA was a

17     tool to facilitate this change, as Mr. O'Sullivan reminded us yesterday,

18     and that's at TR9865-66, Exhibit 3D510, paragraph 25.

19             Further discussion on this alleged bad faith build-up of troops

20     by the VJ is addressed in paragraphs 85 to 97 of our final brief.

21             One further matter I'd like to mention during this period

22     preceding the war is the testimony of General Dimitrijevic.  This

23     primarily concerns whether General Ojdanic was receiving accurate reports

24     from the 3rd Army and Pristina Corps subordinates on whether provocations

25     in violation of the cease-fire came from the KLA or whether these

Page 27134

 1     provocations were initiated by Serb forces.  The only two specific

 2     incidents mentioned by Dimitrijevic both in the collegium and here at the

 3     trial are Podujevo and Racak.  As to Podujevo, General Dimitrijevic

 4     testified that, after a general staff investigation this was indeed a

 5     legitimate training exercise, and as to Racak, General Dimitrijevic

 6     further testified that the army was not involved and that General Ojdanic

 7     insisted on knowing the truth about these events.  No other specific

 8     incident was mentioned by Dimitrijevic and there is no basis in the

 9     evidence to conclude that action by Serb forces were any different than

10     the legitimate actions revealed by both Podujevo and Racak.

11             In any event, General Curcin answered General Dimitrijevic's

12     question on this issue during the collegium by stating that his reports

13     to the General Staff accurately reflected the subordinate reports.  The

14     testimony of General Obradovic of the General Staff is also pertinent

15     here.  That's at 15107.  And there was a question on cross-examination by

16     Mr. Stamp, and the question was to General Obradovic, "There again we see

17     General Dimitrijevic suggesting that the reports coming from the Pristina

18     Corps were not necessarily accurate about the activities of the corps.

19     Is that a correct conclusion, that the security chief of the VJ was

20     saying that these Pristina Corps reports are not necessarily accurate

21     about the activities of the Pristina Corps?"

22             And the answer was:  "The thesis advocated here by General

23     Dimitrijevic, as you can see he received this information from some

24     sources in the West," and a brief interjection here.  You'll recall the

25     testimony of both Colonel Crosland and General Dimitrijevic that they

Page 27135

 1     would meet frequently.  That was clearly established by the evidence.  So

 2     going on with General Obradovic's answer:  "He received this information

 3     from some sources in the West.  So this thesis is very present in the

 4     West, that the MUP and the army are conducting mopping up operations.

 5     That's the theory.  And it's a fact that the Chief of the General Staff

 6     and the collegium as a whole insisted on knowing the full truth of the

 7     situation in the units."

 8             So what General Dimitrijevic is saying is nothing new.  "It's not

 9     that we didn't want or didn't know.  There was no reason for us not to

10     trust the subordinate commanders and the subordinate commands.  We had no

11     reason to doubt each and every piece of information we received.  We had

12     no reason to think it was unreliable."

13             Moreover, as we've stated in our brief, General Ojdanic, as well

14     as General Curcin and others took steps during the collegiums involved to

15     heed the admonitions of General Dimitrijevic by continuing to closely

16     monitor the accuracy of reports and issuing orders to make sure this

17     happened.

18             General Ojdanic further stated in the relevant collegium that he

19     would speak to the 3rd Army commander about this issue, and as General

20     Dimitrijevic testified, when General Ojdanic said he intended to

21     accomplish a task, he followed through on it.

22             Indeed the lack of any improper intent on the part of

23     General Ojdanic was testified to by General Dimitrijevic himself, who

24     stated that General Ojdanic was "angry" when he received inaccurate

25     information and that he sincerely wanted to determine the truth and do

Page 27136

 1     the right thing.  And the only person who really raised the reporting

 2     issue, General Dimitrijevic, was as categorical as the other members of

 3     the General Staff in testifying that no plan to deport Kosovar Albanians

 4     ever existed.  And I'd like to use General Dimitrijevic's denial of any

 5     plan to expel Kosovar Albanians as a transition to an ultimate question

 6     in this case, which is why the refugees left Kosovo.

 7             As we explain in our brief at pages 125 to 128, and as discussed

 8     in the briefs of the other defendants, there are a number of possible

 9     explanations based on the evidence.  One, the fact and the threat of NATO

10     bombing.  Two, both the fact and the prospect of combat between Serb

11     forces and the KLA.  Three, action by the KLA to move civilians to create

12     a humanitarian crisis and to further use civilians as a shield against

13     Serb forces.  And four, individuals acting from hatred, revenge, or some

14     other ignoble motive.

15             There's evidence in the case as set forth in various Defence

16     briefs to support each of these four different causes I have mentioned.

17     Specifically as to General Ojdanic, it's clear that he believed, along

18     with the General Staff, that it was the KLA and not Serb forces who were

19     causing the movement of ethnic Albanians from Kosovo.  As early as 4

20     March 1999, prior to the war, General Dimitrijevic specifically reported

21     to the collegiums that intelligence was received -- did I say General

22     Dimitrijevic or General Ojdanic?  It was General Dimitrijevic who

23     reported to the collegiums that intelligence was received that very

24     organised activities of the KLA were moving civilians from individual

25     villages to bring the humanitarian crisis to the fore again and provoke a

Page 27137

 1     reaction from the international community.  That's P933, page 9.

 2             The discussion at the collegium of 9 April 1999 is particularly

 3     important to understand what General Ojdanic knew about the movement of

 4     the population from Kosovo.  General Krga, in charge of the intelligence

 5     division, described the movement as "the planned withdrawal of the

 6     so-called Kosovo Liberation Army and the Siptar people from Kosovo and

 7     Metohija, which has realistically created a difficult humanitarian

 8     situation."  Exhibit P929, page 5.

 9             Colonel Gajic of the security administration said at the same

10     collegium that "After crushing the terrorist forces of -- in Kosovo, some

11     of them managed, probably in a planned way, to withdraw to Albania,

12     Macedonia, and a few to Montenegro."  He predicts that the terrorists

13     will force Albanian and non-Albanian citizens to move out of Kosovo.  He

14     goes on to say that "The enemy will conduct planned activity to push out

15     Siptars in order to accuse the army and the state of ethnic cleansing and

16     genocide, thereby creating more favourable grounds for operation by NATO

17     against our forces."  That's Exhibit P929, pages 8 to 11.

18             In fact, the discussion at the collegium shows that the staff of

19     the Supreme Command was worried about a ground attack from terrorists

20     mingled with the 400.000 refugees.  They proposed announcing publicly

21     that unarmed people and refugees "cannot be played with," and refugees

22     should be allowed to return to their homes.  That's at P929, pages 33 and

23     34 of the 9 April 1999 collegium.

24             That same day, 9 April, General Ojdanic issued a directive which

25     indicated that the army expected infiltration by the KLA on the pretext

Page 27138

 1     of securing the return of the refugees, that reception of the refugees on

 2     the state border should be organised, that the army should offer

 3     assistance to other organs of government for the further care of

 4     refugees, that infiltration of the returning refugees by the KLA should

 5     be prevented, and that the enemy should be treated in accordance with

 6     international humanitarian law.  That's P1281.

 7             Thus it's clear that as of 9 April 1999, at the level of the

 8     staff of the Supreme Command, the displacement of the refugees was

 9     believed to have been a KLA tactic to stimulate international support,

10     that it was seen as against the interests of the army and that the return

11     of the refugees was not only contemplated but was to be facilitated.

12     This is hardly consistent with a joint criminal enterprise to deport

13     Kosovo Albanians.

14             Equally inconsistent with such an alleged plan is the

15     announcement made by General Ojdanic on 7 April 1999, the day of the

16     Serbian unilateral cease-fire, encouraging refugees to return to their

17     homes, that announcement set forth in paragraph 263I of our brief.  It's

18     noteworthy in his 98 bis argument Mr. Hannis stated concerning the

19     movement of refugees, and this at 12594, Mr. Hannis said, "We're not

20     saying that some of these people didn't leave because of the bombing.

21     We're not saying that some of these people didn't leave their villages

22     because they were told to do so by the KLA in some instances, but we're

23     saying there is evidence upon which you could, as a reasonable trier of

24     fact, find beyond a reasonable doubt that they left because of the

25     violent actions and the force of Serb police and VJ."

Page 27139

 1             Let's assume for a moment with Mr. Hannis that the refugee flight

 2     was at least due in part to the action of Serb forces.  The Prosecution's

 3     burden here of course is to further show that these expulsions were the

 4     result of a plan, a joint criminal enterprise to change the ethnic

 5     balance in Kosovo, and there's nothing in this pre-war conduct of

 6     General Ojdanic, we submit, that gives any indication whatever of an

 7     intent to join a criminal enterprise to expel Kosovar Albanians.

 8             General Ojdanic knew at least as early as 1997, as his comments

 9     at the collegium reveal, that the shortest and fastest way to lose Kosovo

10     was by war.  As he said in the collegium of 29 June 1998, P927, "I

11     personally still see diplomacy and politics as the only the way out, and

12     I am firmly convinced of that as a soldier.  It is utopia for anyone to

13     think that the world will allow us to solve the problems of Kosovo and

14     Metohija by force."

15             And along these same lines in the collegium of 10 April 1998,

16     when he was the deputy chief of staff, General Ojdanic made these very

17     thoughtful, insightful and remarkably prescient comments, that's at

18     3D657, page 1 and 2, and if the usher would please put that slide up.

19     Showing that even old guys can make one concession to the twenty-first

20     century.  We can use this kind of stuff too.  It will be the only example

21     we will have in the case.  Mr. Visnjic had to teach me how to use it.

22             And in looking at these, what we are -- these are very

23     significant comments in our view, and I would ask you to consider these

24     comments in the context of Judge Bonomy's question to Ms. Kravetz on

25     Tuesday.  Did they seriously think they could defeat NATO and clear the

Page 27140

 1     country of Albanians?  Are the words that we're going to look at now

 2     really the words of a person who had in mind going to war and expelling

 3     Kosovar Albanians under the cover of NATO bombing?  Are these words that

 4     follow now the words of General Ojdanic someone who feels that way, that

 5     they want to use war as an instrument of policy to effectuate a joint

 6     criminal enterprise?  And here are the words of General Ojdanic:

 7     "General, sir, I will not -- I, General, sir, will not go into

 8     international community politics.  I will give an assessment from my

 9     point of view, and that is what the FRY/Federal Republic of Yugoslavia

10     will not preserve Kosovo by fighting a war.  We must look for political

11     and diplomatic solutions.  Otherwise, we shall, both as a people and as a

12     state, dive headfirst into calamity.

13             "I would like to present a possible minor subvariant of the

14     possible developments in Kosovo corresponding to the need of our

15     engagement.  I think that in the future the Albanians shall continue

16     applying pressure through terrorist activities because that has yielded

17     results so far.  Such activities will gradually increase, the aim being

18     for them to become so strong that they cannot objectively be opposed by

19     the MUP/Ministry of the Interior forces as the only competent and

20     internationally recognised force for confronting terrorist groups.

21              "Such I would say an imposed situation would in my opinion be

22     perfidious and its goal would be to force the FRY/Federal Republic of

23     Yugoslavia to engage the VJ/Yugoslav army to destroy the terrorist

24     groups.  Such a decision of the FRY would give the Albanians the right

25     to ..."

Page 27141

 1             Something happened on my screen.  This is why we don't use that

 2     technology.

 3             JUDGE BONOMY:  That's the problem when old guys use technology,

 4     Mr. Sepenuk.

 5             MR. SEPENUK:  "Such a decision of the FRY would give the

 6     Albanians the right to oppose the VJ and the MUP forces with all their

 7     might.  Practically speaking, while this would constitute an armed

 8     insurrection from our point of view, it would not constitute one in the

 9     eyes of the international community.  This way, they would all but

10     legalise the armed rebellion.

11              "I am convinced that should we engage in such activity, the

12     international community will not quietly stand aside and watch but will

13     do everything to protect the Albanians in order to address all this at

14     the roundtable, in spite of everything we will have to go through and

15     survive.  As far as the Yugoslav army is concerned, General, I think that

16     a decision to engage the Yugoslav army to fight against the terrorist

17     groups would be a big and a difficult one.  We know how many of them

18     there are and how strong they are, and we also know which tactics need to

19     be applied to destroy them and the size of the forces needed to truly

20     destroy them.  Involving the Yugoslav army on the destruction -- in the

21     destruction of the terrorist groups would practically condemn it.  That

22     would mean war."

23             Again, comments made on 10 April 1998 when General Ojdanic was

24     the deputy chief of staff.

25             JUDGE BONOMY:  How do these comments fit with what actually

Page 27142

 1     happened in the summer of 1998?

 2             MR. SEPENUK:  Well, what happened, Your Honour, is that -- that's

 3     why I think this is such a prescient comment on the part of

 4     General Ojdanic because the KLA activities were increasing because they

 5     essentially had reoccupied all of the areas starting with the

 6     General Perisic directive of July 1998, it was felt necessary that there

 7     had to be some use of the VJ.  Again, General Ojdanic saw this as a

 8     potential disaster, but because the MUP could not handle it on their own

 9     the VJ had to be brought in to take care of the situation.  Even

10     Colonel Crosland admitted that.  And the continual escalation by the --

11     by the KLA is what caused the continuing revving up of this operation.

12     That's why I say it was such a prescient comment.

13             I mean, here was July of -- here he's making these comments in

14     April of 1998, and everything he said came true.  Very prophetic

15     comments.  Knowing therefore that a war over Kosovo was futile and

16     unwinnable, General Ojdanic did his very best to make sure that war never

17     happened as indicated by his continual anti-war comments in the

18     collegiums, his belief in the limited and restrained use of the army,

19     lest [Realtime transcript read in error "less"] it lead to war and his

20     cooperation with the KVM, lest [Realtime transcript read in error "less"]

21     non-cooperation would lead to NATO bombing and war.

22             And it's our further submission that the evidence of

23     General Ojdanic's pre-war conduct was geared solely to dealing with the

24     dual threats of the KLA and NATO, whether the issue was the arming of

25     civilians, the promulgation of war plans, or the troop build-up in the

Page 27143

 1     spring of 1999.  At the least, General Ojdanic's conduct throughout the

 2     pre-war period is consistent with innocence.  The Prosecution's

 3     conclusion that General Ojdanic joined a criminal enterprise to deport

 4     Kosovar Albanians is not the only reasonable conclusion available from

 5     the evidence.

 6             Now, we spent the first 100 pages --

 7             MR. O'SULLIVAN:  Excuse me, Your Honour.  There's several times

 8     Mr. Sepenuk has used the word "lest" and it appears in the transcript

 9     repeatedly as "less."  I'm looking at page 24, lines 11 through 13.  And

10     a couple of times now his use of the word "lest" has come across as

11     "less" and it does change the meaning of the sentence.

12             JUDGE BONOMY:  Give me an example.  Sorry.  Page 24.

13             MR. O'SULLIVAN:  24 between lines 11 and 13 he used the worth

14     "lest" twice and it's recorded as "less" and it could be quite confusing

15     when you go back to read what he actually said.

16             JUDGE BONOMY:  I'm sure that will be corrected when the

17     transcript is reviewed.

18             MR. VISNJIC: [Interpretation] Your Honour, also page 1, line 14,

19     same problem.

20             JUDGE BONOMY:  Thank you.  Please continue, Mr. Sepenuk.

21             MR. SEPENUK:  Thank you, Your Honour.  We've spent the first 100

22     pages of our brief discussing the OTP's lack of circumstantial evidence

23     to prove that there was any plan to expel the Kosovar Albanians both

24     before the war and during the war.  As set forth in our brief, every

25     member of the General Staff who testified at this trial categorically

Page 27144

 1     denied that such a plan ever existed.  The best Mr. Hannis could do is to

 2     suggest in his oral argument yesterday that all these officers had a

 3     motive to lie or kept in the dark about the plan.

 4             Your Honours of course are the ultimate judges of a witness's

 5     credibility and we presumably won't know your views on this until a

 6     judgement is entered.  As an aside, however, and for what it's worth, and

 7     I hope it's worth something, I note that the only officer of the General

 8     Staff whose credibility was seriously questioned at all as I recall was

 9     not by the OTP but, rather, by Judge Bonomy, and I refer the Trial

10     Chamber to Judge Bonomy's colloquy with General Obradovic, the assistant

11     Chief of Operations to the General Staff that took place on 6 September

12     2007, transcript 15162 to 165.  There is no time to cite this quite

13     lengthy colloquy except to say that there was mounting frustration on

14     Judge Bonomy's part because General Obradovic, in the view of

15     Judge Bonomy, was repeatedly avoiding answering Judge Bonomy's questions.

16     This matter was resolved by the fortunate intervention of Judge Kamenova

17     at transcript 15164.  The transcript simply says:  "Trial Chamber

18     confers."

19             Mr. Visnjic and I well remember Judge Bonomy's conferring with

20     Judge Kamenova as if it was yesterday because we, Mr. Visnjic and I, were

21     also frustrated by what appeared to be, what appeared to be General

22     Obradovic's refusal to give a straight answer to Judge Bonomy's question.

23     Judge Kamenova, who understands the Serbian language, no doubt informed

24     Judge Bonomy that it was an error in translation of a document that was

25     creating the difficulty, and there was the English, there was the

Page 27145

 1     Serbian, and it just so happened that none of my distinguished Serbian

 2     colleagues caught this error, but Judge Kamenova did.  And I note this

 3     incident, I have to say I'm noting this incident not only to show the

 4     lack of any cross-examination by Mr. Hannis and Mr. Stamp trying to show

 5     that these -- all these officers lied or were kept in the dark about a

 6     plan.  There was none of that in this case.  But I note this incident

 7     also to show how easy it is to get it wrong.  Had Judge Kamenova not

 8     interjected at that point I think it would have been fair to say that you

 9     could -- because you were ready to go on to other subject.  You were

10     quite frustrated, as we were, Your Honour, with the witness's answer.

11     Judge Kamenova said, no, it's just a mistake of translation, no problem

12     here.  And Your Honour Judge Bonomy, you eventually agreed with that.

13     But I cite it to show how easy it is again to get a wrong, that we'd

14     better pause before we jump to conclusions, as the OTP has done in this

15     case continually and repeatedly in its judgements, its erroneous

16     judgements about General Ojdanic.

17             In any event, as I stated, every member of the General Staff who

18     testified at this trial categorically denied that a plan to deport

19     Kosovar Albanians ever existed, nor was such a plan revealed by the

20     numerous documents that the Ojdanic Defence has presented here.  Not

21     selectively but virtually in their entirety, including the collegiums of

22     the General Staff, the General Staff daily briefings, 3rd Army combat

23     reports, Supreme Staff, command staff combat reports and the security

24     administration reports, all of which are attached as annexes in our

25     brief.

Page 27146

 1             There's simply no evidence from any witness or document that

 2     General Ojdanic ever agreed to, had knowledge of or participated in or

 3     aided and abetted any criminal enterprise or operation which had as its

 4     objective the expulsion of Albanians from Kosovo.  The Prosecution has

 5     not proven its case against General Ojdanic for individual responsibility

 6     under Article 7(1) of the statute, and we submit he should be acquitted

 7     of these charges.

 8             Before discussing the question of General Ojdanic's command

 9     responsibility, I want to briefly reply to Mr. Stamp's comments about

10     Dr. Ball and Dr. Fruits.  I heard a critique of Dr. Fruits' alleged lack

11     of expertise but nothing about Dr. Ball's built-in bias and lack of

12     objectivity, no better shown than by his comments to the "Cult of the

13     Dead Cow" activist group at their convention in Las Vegas when he said

14     "it would be very nice if we had a round of applause for the extradition

15     of Slobodan Milosevic to The Hague."  The transcript says applause.  "And

16     I hope you're all as excited as I am by the prospect of his very pleasant

17     and drawn-out trial which will begin in about six months."  That's at

18     transcript 10273.

19             Dr. Ball conceded that he had no data in his report on the

20     activities of Serb forces.  That fact alone, according to Dr. Fruits,

21     eliminated the possibility of concluding from a statistical standpoint

22     that Serb forces were responsible for migrations and deaths in Kosovo.

23     I've heard nothing from the Prosecution to counter this testimony from

24     Dr. Fruits.

25             As Dr. Fruits also testified, there were flaws in the data

Page 27147

 1     concerning KLA attacks and NATO air-strikes.  For example, Dr. Fruits

 2     noted that there were at least ten NATO air-strikes on 3, 4 April 1999,

 3     whereas Dr. Ball's data indicated only two NATO air-strikes on those

 4     dates.  Dr. Fruits' data highlighted six days where air-strikes occurred,

 5     whereas Dr. Ball's data records no air-strikes.  I've heard nothing from

 6     the Prosecution to counter this testimony of Dr. Fruits.

 7             Mr. Stamp also criticises Dr. Fruits for failing to use his data

 8     to run further statistical tests.  Dr. Fruits was retained jointly by the

 9     Defence to show that Dr. Ball's report lacked statistical credibility.

10     In our view he has done precisely that.  It was not Dr. Fruits's role to

11     attempt to resuscitate the OTP case.  When asked that same question at

12     the trial about doing further statistical steps, Dr. Fruits replied, and

13     this is at 26021, he said:

14             "A.  Well, the main reason I didn't do it was because it wasn't

15     my assignment.  Another reason is that his data was incorrect, and a

16     third reason is that Dr. Ball et al did not provide sufficient detail of

17     what data they used to produce figure 2 for me to actually perform that

18     analysis."

19             And we'd also refer the Trial Chamber to section 11.1 of

20     Dr. Fruits' report, 3D893 on this point.

21             The Prosecution's criticisms of Dr. Fruits are misplaced.  His

22     evidence demonstrates that Dr. Ball's evidence is unreliable and

23     inappropriate in a criminal trial such as this.

24             I'd like to turn now from the pre-war setting to discuss

25     General Ojdanic's wartime conduct and his command responsibility as VJ

Page 27148

 1     chief of staff during the 78 days of war.

 2             Before analysing the command responsibility of General Ojdanic in

 3     regards to VJ forces, it's our submission that MUP forces were not

 4     subordinated to the VJ during the war in Kosovo.  This is effectively

 5     conceded by the Prosecution in its final brief as they do not indicate at

 6     any point that subordination occurred.  Instead, the OTP adopts a new

 7     position stating that, this is in paragraph 246, "Once the state of war

 8     was declared on 24 March 1999, the MUP did not submit to full

 9     subordination to the VJ for combat operations.  Rather, MUP units engaged

10     in joint combat actions on the basis of Joint Command decisions."  That

11     General Ojdanic did not have effective control of the MUP is covered very

12     extensively in our brief at paragraphs 454 to 478.

13             This lack of effective control of the MUP also holds true for any

14     crimes that may have been committed by paramilitaries in Kosovo since

15     paramilitaries were not subordinated to VJ forces.  While the OTP in

16     paragraph 110 of its brief states that "MUP units were supplemented with

17     paramilitary formations," notably absent is any indication of a link

18     between paramilitary forces and the VJ.

19             It should also be noted that information relating to any specific

20     crimes which are alleged to have been committed by MUP forces did not

21     reach General Ojdanic or the General Staff.  Any MUP crimes which may

22     have occurred were required to be reported up the Ministry of Interior

23     chain of command which represented an entirely independent reporting

24     system to that of the VJ.

25             In his military expert report, 3D1116 at paragraph 134, page 121,

Page 27149

 1     General Radinovic states that following his examination of all relevant

 2     documentary evidence, no MUP war crimes were ever reported to the VJ

 3     General Staff.

 4             The letter allegedly sent by General Pavkovic to the General

 5     Staff on 25 May 1999, which reported serious crimes committed by MUP

 6     forces, was never received by General Ojdanic or any member of the

 7     General Staff.  Further details concerning the authenticity of this

 8     letter, P1459, is contained in paragraphs 242 to 249 of our final brief.

 9             THE INTERPRETER:  Could counsel kindly slow down, please.  Thank

10     you.

11             MR. SEPENUK:  Yes, thank you.  I've been told I've been speaking

12     too quickly.  I apologise and I will slow down accordingly.

13             Now returning to the matter of General Ojdanic's command

14     responsibility over VJ forces.  The threshold question that must be

15     satisfied is the establishment of a superior-subordinate relationship.

16     The minimum requirement for recognition of the superior-subordinate

17     relationship is the superior's ability to exercise effective control over

18     the subordinates, meaning "the material ability to prevent or punish" the

19     subordinates' offences.  It is axiomatic, therefore, that General Ojdanic

20     would not have had the material ability to prevent or punish criminal

21     conduct of which he was not aware.

22             What is the evidence that General Ojdanic knew of the commission

23     of any of the specific crimes charged in the indictment, and the answer

24     is none.

25             You heard from General Vasiljevic that it was the regular

Page 27150

 1     practice for brigades to submit daily combat reports to the Pristina

 2     Corps command.  The corps command condensed the information into a single

 3     report which was forwarded to the 3rd Army.  The 3rd Army would condense

 4     the reports from the corps and send it on to the Supreme Command Staff.

 5     There's no evidence that any of the crimes charged in the indictment were

 6     included in any of the daily reports received by General Ojdanic or the

 7     Supreme Command Staff.

 8             There is no evidence that any of the crimes, nor is there any

 9     testimony -- I got a little bit confused there.  I apologise.  Nor is

10     there any testimony from anyone that they had brought any of the specific

11     crimes listed in the indictment to General Ojdanic's attention.  This is

12     confirmed by the military expert General Radinovic who stated in his

13     report that the 3rd Army combat reports contain no data about a single

14     crime alleged in the indictment.  That's 3D1116, paragraph 330, page 202.

15             Of course the fact that General Ojdanic did not receive reports

16     of any crimes listed in the indictment does not end our inquiry.

17     General Ojdanic could still be held liable under Article 7(3) if he knew

18     or had reason to know that a crime was about to be or had been committed

19     by a subordinate and he failed to take necessary and reasonable measures

20     to prevent the crime or punish the perpetrator.

21             I'll turn first to the OTP's claim that General Ojdanic knew or

22     had reason to know that a crime was about to be or had been committed by

23     a subordinate, and here I'm going to do the same thing pretty much that

24     Mr. Fila was talking about yesterday, paragraph by paragraph.  It's going

25     to take a bit of time, but the OTP has it so wrong in its brief that

Page 27151

 1     there's no way we can -- we can pass it by.  We have to let the Court

 2     know all of these facts.

 3             The OTP's first claim in this regard is that "Ojdanic was aware

 4     that thousands of Kosovo Albanians were being forcibly expelled from

 5     Kosovo."  That's at paragraph 791.  Of course the important phrase here

 6     is "forcibly expelled," and there is nothing in the bullet points offered

 7     by the OTP which points to any such knowledge of General Ojdanic.

 8             In its brief the OTP refers to a Supreme Command Staff briefing

 9     of 3 April 1999 where General Krga reported the "NATO claim that there

10     are about 500.000 refugees," and suggested that refugee check-points be

11     set up.  In response states the OTP brief at paragraph 791, "Ojdanic

12     simply said prepare denials on refugees."  Leaving the totally erroneous

13     impression that General Ojdanic was cavalierly denying the existence of a

14     refugee problem.  Another instance where the OTP tells only a misleading

15     snippet of the story which I'll now explain.

16             The Supreme Command Staff briefing referred to by the OTP took

17     place on 3 April 1999 starting at 2330 hours, 3D721.  Just a half hour

18     before that at 2000 hours General Krga had submitted an intelligence

19     briefing to the General Staff, 3D911, which reported that an American

20     representative had stated that a protectorate "should be established

21     along the border with Albania to monitor the return of Siptars Albanians

22     to the area."  3D911 page 1.

23             General Krga's intelligence report went on to say that "The

24     necessity of establishing a protectorate in Kosovo-Metohija is also being

25     mentioned more and more often in the Western media in the context of the

Page 27152

 1     return of refugees and the necessity of their protection."  3D911 page 1.

 2             Krga's report concluded with the proposal that "In order to avoid

 3     being demonised in the media, I propose that our border organs organise

 4     points for the reception of Siptar refugees who are returning to Kosovo

 5     Metohija and this should be reported in the media."

 6             It was in this context that General Ojdanic's statement "prepare

 7     denial on refugees" was issued.  This statement followed General Krga's

 8     proposal at the General Staff briefing that "refugee check-points be set

 9     up" to monitor the return of refugees without external assistance.

10             On this issue the OTP also inexplicably fails to refer to the

11     testimony of Colonel Milovan Novakovic who was a member of the General

12     Staff in charge of information and morale to whose office General Ojdanic

13     referred this task concerning "prepare denial on refugees," as stated in

14     the briefing at 3D721, item 2.

15             In answering a specific question from Mr. Hannis on the phrase

16     used by General Ojdanic, Colonel Novakovic testified:  "We were not

17     denying the fact that there were Albania refugees."  That's at transcript

18     16269, 70.

19             Colonel Novakovic went on to say that the General Staff was

20     concerned at the varying and inflated numbers being publicised by NATO.

21     As Colonel Novakovic testified, "That is why we thought and that is why

22     it was up to the position of the collegium that somebody should speak up

23     and say what the truth would be in approximate terms in terms of actual

24     figures."

25             There's no question that General Ojdanic and the General Staff

Page 27153

 1     continually acknowledged the importance and significance of the refugee

 2     problem.  Indeed the OTP itself refers to a Supreme Command Staff

 3     briefing on 12 May 1999, where General Krga "reported that the problem of

 4     refugees was being stressed in all conferences."  That appears at

 5     paragraph 791 of the OTP brief.

 6             Again --

 7             JUDGE BONOMY:  Mr. Sepenuk, is there any evidence of -- of what

 8     was said or issued in response to the instruction "prepare denial on

 9     refugees"?

10             MR. SEPENUK:  I don't believe so, Your Honour.  I wish there was

11     but I do not believe so.

12             Again on the subject of General Ojdanic's alleged knowledge of

13     forceable expulsion of refugees, the OTP in paragraph 791 states:  "A

14     Pristina Corps combat report dated 31 March 1999 states that the MUP and

15     the VTOs were channelling Siptar refugees to the Republic of Albania."

16             In support of this claim, the OTP simply refers to Exhibit P2930,

17     item 4, a Pristina Corps command group report which states that "Siptar

18     refugees" are being channelled to the Republic of Albania.

19             What the OTP fails to mention is that this report was sent from

20     the Pristina Corps command group to the Pristina Corps operations centre.

21     It was not routed to the General staff, and therefore General Ojdanic

22     never saw it.  So much for the question of his knowledge.  However, even

23     if he had seen this document at the relevant time, it would not have been

24     alarming.  The reason that these refugees were "channelled" was to ensure

25     only one thing, their safety.  Goran Jevtovic, the VJ member who drafted

Page 27154

 1     the report in question, that's Exhibit P2930, states that this particular

 2     area was ringed by mines and obstacles along with units in combat

 3     disposition, and it was necessary for the safety of the civilians to

 4     channel or direct them in safe directions.  That's 5D1385, paragraph 22.

 5             This protection of the welfare of civilians where there were

 6     mines in the area is corroborated by the testimony of Delic 19306-7, and

 7     Halimi 4492.  In short, as further evidence of the weakness of their

 8     case, the OTP has improperly taken this snippet, this little bit of a

 9     report out of the context of a true situation to impute to

10     General Ojdanic a knowledge he never had.

11             Having failed to establish General Ojdanic's knowledge that

12     Kosovar Albanians were being forcibly expelled, the OTP turns to its next

13     allegation that "Ojdanic was aware of other crimes against Kosovo

14     Albanians."  That's paragraph 792.

15             The OTP then sets forth some eight examples concerning

16     General Ojdanic's knowledge of crimes and concludes in paragraph 793 that

17     despite his awareness of these crimes Ojdanic "took no concrete action."

18             We'll examine each of these eight incidents in turn to show that

19     they are both baseless and misleading.

20             The OTP first claims that on -- that "on 3 April 1999, during a

21     Supreme Court staff briefing, Krga reported problems with looting and

22     that 32 volunteers of the 175th Infantry Brigade had been sent back."  In

23     fact, it was Colonel Gajic who made this report, not Krga.  As noted by

24     this exhibit 3D721, those volunteers were sent back from Kosovo.  In this

25     same General Staff briefing of 3 April 1999, General Ojdanic responds to

Page 27155

 1     this incident of looting by volunteers by stating, "The command of the

 2     3rd Army is to explain why these 32 were together and not in the units."

 3     That's 3D721, page 2.

 4             Dividing the volunteers and not allowing them to serve in the VJ

 5     as a group would have been in compliance with General Ojdanic's orders

 6     regarding the admission of volunteers as more fully explained in our

 7     brief at paragraphs 269 to 271.

 8             In addition, the Gajic testimony cited but not explained by the

 9     OTP, 15332-33 --

10             THE INTERPRETER:  Could counsel slow down once again, please,

11     thank you.

12             MR. SEPENUK:  I hope this is the last time I've been warned about

13     slowing down.  I'll really try to keep it very measured.  I apologise for

14     that.

15             In any event, the Gajic testimony confirms that these men who

16     committed crimes were arrested and convicted while the remainder of --

17     while the remainder of the unit was removed from Kosovo-Metohija.  So

18     much for the baseless and rather startling OTP claim in paragraph 793

19     that "Ojdanic took no concrete action."

20             The next example cited by the OTP is that, "On 5 April 1999,

21     during the supreme -- the SC staff briefing, Colonel Gajic reported that

22     "bands stealing from the local population had appeared in Kosovo."  This

23     is by no means a specific allegation that could realistically be

24     processed or prosecuted.  Further, the word "bands" does not indicate

25     that this was VJ forces, MUP, paramilitaries or rogue civilians acting on

Page 27156

 1     their own, aside from the fact that a military justice system had been

 2     established by General Ojdanic and the VJ for the arrest of any crime

 3     perpetrators.

 4             The next OTP claim is that, "In April 1999, security organs of

 5     the Pristina Corps received a report from the MUP on the execution of 20

 6     civilians in Mali Alas in April 1999, allegedly by the 252nd Armoured

 7     Brigade.  The chief of the security of the Pristina Corps reported this

 8     to Vasiljevic."

 9             What the OTP fails to mention is that Vasiljevic did not find out

10     about the murder of these civilians until early May 1999 when he was in

11     Kosovo, as his statement makes clear.  Neither Vasiljevic nor Ojdanic

12     knew about this at the time.

13             Also not mentioned by the OTP is that this case was transferred

14     to a civilian court.  This is explained in the testimony -- in the

15     testimony of the witness Mladenovic who stated that following an

16     investigation by the military prosecutor it was determined that no

17     military personnel had been involved in the murders but, rather,

18     civilians from that area.  21260-261.

19             The next OTP claim is that "On 18 April 1999, during the Supreme

20     Command staff briefing Gajic reported a rape case from the 52nd Air

21     Defence Artillery and Rocket Brigade and looting in the Djakovica area."

22             This precise case is dealt with in paragraph 261 of our brief,

23     and the short of it is that the soldiers committing the rape were

24     identified, arrested, a criminal report was filed, and as far as Colonel

25     Gajic knew, the perpetrators were convicted and sentenced to prison.  So

Page 27157

 1     much again for the OTP claim that General Ojdanic took no concrete action

 2     as --

 3             JUDGE BONOMY:  On this occasion, though, that's recognised in the

 4     OTP brief.  The footnote makes it sure that there was a prosecution.

 5             MR. SEPENUK:  Yeah, but it's -- I'm glad it was clear to Your

 6     Honour, I am, but the way it was presented by the OTP, quite frankly,

 7     Your Honour, I didn't think it was that clear.  It was footnoted.  I

 8     think it should have been in the text.

 9             The next OTP claim is that "On 26 April 1999, or thereabouts, the

10     Supreme Command Staff received a Pristina Corps request for the

11     engagement of a forensic pathologist to exhume bodies buried in graves in

12     Kosovo.  Lazarevic reported that "There are indications that members of

13     the army are responsible."

14             All we can say to this is that a forensic examiner being sent to

15     exhume bodies necessarily negates the idea of some plot to cover up the

16     deaths.  This was a good faith effort of the VJ to determine if members

17     of the army were in fact responsible.

18             The next OTP claim is as follows:  "In early May 1999, the VJ

19     security administration was informed that crimes were being committed in

20     Kosovo and that volunteer groups were present there.  Farkas inspected

21     the security organs in Kosovo between 5-6 May 1999, and upon returning

22     reported to Ojdanic that crimes were being committed in Kosovo and were

23     not reported up to the Supreme Command Staff.  There were rapes, looting,

24     and theft."

25             Of course what the OTP fails to mention is that Farkas was sent

Page 27158

 1     to Kosovo by General Ojdanic in early May specifically to investigate

 2     problems of which he had just become aware.  The evidence is clear that

 3     General Ojdanic reacted strongly upon hearing that crimes were not being

 4     reported and proactive measures were taken to uncover further crimes

 5     during the next few weeks including meetings with General Pavkovic,

 6     President Milosevic and others.  This issue is addressed in paragraphs

 7     334 to 352 of our brief.

 8             The next OTP claim is that "On 6 May 1999, the Supreme Court

 9     staff intelligence department reported that General Clark 'assessed that

10     there was no longer a possibility for the VJ to continue with ethnic

11     cleansing in Kosovo.'"

12             It's difficult to understand what the OTP is driving at here.

13     Surely General Clark, indeed the enemy at this point in May 1999, can

14     hardly be cited as any kind of dispassionate observer on whether there

15     was knowledge on the part of General Ojdanic or the General Staff of the

16     forcible expulsion of Kosovar Albanians.  This is particularly true since

17     after two years of trial, the best that the OTP can do on this issue is

18     the evidence contained in paragraph 791 of its brief, which I hope we

19     have shown is without merit.

20             The last OTP allegation in this regard is that "On 8 May 1999,

21     Lieutenant Colonel Stevan Djurovic, the deputy of the Pristina Corps

22     security, met with Vasiljevic in Belgrade and informed him about the

23     crimes against civilians committed by the military.  These included a

24     rape case and two murders.  Vasiljevic instructed him to prepare a

25     report."

Page 27159

 1             This set of facts is covered in our brief at paragraph 339 as

 2     part of the section of our brief in which General Ojdanic begins to

 3     receive a flow of information in May 1999 regarding some unreported

 4     crimes and is proactive concerned measures to remedy any reporting

 5     deficiencies.  Vasiljevic stated that his impression was that this was

 6     the first time General Ojdanic had heard about these crimes.

 7             The fact is as set forth extensively in our brief that

 8     General Ojdanic did not receive complete information regarding VJ

 9     activity in the field in Kosovo.  More specifically, General Ojdanic did

10     not have knowledge of widespread crimes committed or about to be

11     committed sufficient to declare either actual or inquiry notice.  This

12     lack of knowledge in regards to crimes allegedly committed by VJ forces

13     is described in detail in paragraphs 252 -- 256 to 262 of our final

14     brief.

15             For instance, Generals Curcin and Simic and Colonel Ivkovic,

16     among others in the VJ General Staff, testified that the Supreme Command

17     Staff did not have knowledge of massive violations of international

18     humanitarian law but, rather, only received information indicating

19     isolated and unorganised criminal behaviour, unorganised criminal

20     behaviour, on behalf of individual soldiers that were being successfully

21     resolved.  3D1121, paragraph 27.  3D1089, page 11.  3D1117, paragraph 13

22     and 27 respectively.

23             The texts of all collegiums, Supreme Command combat reports,

24     daily briefings, security administration reports and 3rd Army reports are

25     attached as annexes to our brief.  A careful examination of the abundance

Page 27160

 1     of documentary evidence fails to locate any instance which would have

 2     provided General Ojdanic with knowledge or a reason to know that massive

 3     crimes against humanity were occurring in Kosovo.  Rather, similar to the

 4     testimony you've heard, through the testimony that you've heard, a review

 5     of the Pristina Corps and 3rd Army combat reports indicated that the

 6     staff of the Supreme Command was being informed in general of the

 7     commission of some crimes in Kosovo and was being consistently assured

 8     that these crimes were being adequately addressed by the military justice

 9     organs.

10             On the subject of reporting on widespread crimes I want to take a

11     brief detour here to take some issue with paragraph 221 of

12     General Pavkovic's brief.  This paragraph refers to an article from the

13     Politika newspaper of 5 May 1999, which is Exhibit 4D406.  This article

14     reports the commission of numerous serious crimes within Kosovo, the

15     arrest of several hundred perpetrators, and the imposition of a large

16     number of sentences from 5 to 20 years' imprisonment for these crimes as

17     that paragraph in the Pavkovic brief states.

18             The Ojdanic Defence, in a written submission of 15 November 2007,

19     objected on several grounds to the admission of this newspaper article

20     from the bar table when it was first offered into evidence.  Among other

21     objections to its unreliability as a newspaper article, the Ojdanic

22     Defence pointed out that the best evidence of reporting of war crimes

23     were the combat reports of the 3rd Army and that the article's contents

24     had already been refuted by the testimony of General Radomir Gojevic, the

25     chief legal officer of the General Staff, particularly to the extent that

Page 27161

 1     it reported massive war crimes followed by lengthy prison sentences.

 2             In its decision of 28 November 2007, the Trial Chamber ruled in

 3     paragraph 6 that 4D406, as was generally the case with newspaper

 4     articles, was not admissible to prove the truth of its contents.  So we

 5     submit that paragraph 221 of the Pavkovic brief should not be given any

 6     weight by the Trial Chamber.

 7             I should add that while this article is not admissible to prove

 8     the truth of its contents, the Trial Chamber may recall that the Ojdanic

 9     Defence had no objection to the admissibility of this article simply to

10     show knowledge of its contents when it was sent to certain recipients in

11     the MUP to take measures against the commission of crimes.  This is

12     reflected in the testimony of the witness Mijatovic at TR22547-549.

13             Judge Bonomy pointed out at that time the distinction between

14     excluding this document as to the truth of its contents but admitting it

15     solely on the issue of notice.

16             Returning to the subject as to when General Ojdanic became aware

17     of unreported crimes, General Vasiljevic testified that General Ojdanic

18     sent him and General Gajic to Kosovo to gather more detailed information

19     about what was going on concerning crimes, looting, and the other

20     problems that were reported.  General Vasiljevic learned during this

21     investigation that there had been a decision by the army command in

22     Pristina not to report the commission of some crimes to the Supreme

23     Command Staff.  General Vasiljevic went on to say that the 3rd Army had

24     investigated and processed these cases and therefore they thought it

25     unnecessary to further report these particular cases up the chain of

Page 27162

 1     command.  This is transcript 8647, 8651.

 2             I'd like to pause briefly here to consider the OTP claim about

 3     General Ojdanic's failure to discipline or discharge General Pavkovic for

 4     his conduct both before and during the war.  The OTP first claims that

 5     Pavkovic sent inaccurate reports to the General Staff by stating that it

 6     was the KLA and not Serb forces who were primarily -- who were primarily

 7     responsible for provocations before the war.

 8             We've already dealt with this issue by pointing out inter alia

 9     that there was no specific information other than an assertion by General

10     Dimitrijevic that these reports were inaccurate, and Dimitrijevic

11     testified that when General Ojdanic said he would be meeting with

12     General Pavkovic about this, he had no reason to doubt that since

13     General Ojdanic usually followed through on what he had to say -- on what

14     he had said.

15             The OTP next claims that the 3rd Army command failed to report

16     crimes to the General Staff during the war.  However, as shown by the

17     testimony of General Vasiljevic, these crimes, though not reported to the

18     General Staff, were in fact processed and prosecuted by the responsible

19     lower commands.  This bottleneck, therefore, can be described more

20     accurately as an inadvertent lack of communication as opposed to any

21     wilful attempt to misinform, and this circumstance is covered in our

22     final brief at paragraphs 250 to 255.

23             The short of it is that there was no compelling reason to suspend

24     or discipline the commander of the 3rd Army in the midst of a NATO

25     bombing campaign and the separatist and violent actions of the KLA.  We

Page 27163

 1     suggest that it would have been ill-advised and irresponsible to change

 2     commanders in the middle of the war under these circumstances, despite

 3     the urgings of General Hannis and General Stamp to substitute their

 4     judgement for that of General Ojdanic.

 5             All this is aside from the fact that General Ojdanic did hold

 6     General Pavkovic accountable by calling him to Belgrade in mid-May 1999

 7     after General Ojdanic was informed of the indication of widespread crimes

 8     by Generals Farkas and Vasiljevic.  General Pavkovic made his

 9     explanations to Mr. Milosevic and others at this Belgrade meeting.

10     General Ojdanic then took steps to further investigate by sending his own

11     officers, Vasiljevic and Gajic, to the field.  The efforts of Vasiljevic

12     and Gajic to investigate and discover other crimes is set forth in

13     paragraphs 363 to 375 of our brief.

14             In addition, there were further efforts to discover crimes which

15     were directed by General Ojdanic.  This included, for instance, seven

16     wartime tours in Kosovo on behalf of the General Staff, as well as some

17     83 inspections at the brigade and battalion level.  And this is all set

18     forth in 3D1116, page 171, 3D1115, paragraph 20.

19             It's significant to mention at this point that General Simic

20     testified that these inspections did not result in any indication to the

21     General Staff that war crimes were being committed on the ground by VJ

22     forces.  3D1089 and 3D489.

23             Another important example of General Ojdanic's efforts can be

24     seen following his receipt of the Louise Arbour letter on 2 -- May 29,

25     1999.  General Ojdanic forwarded this letter to the legal administration

Page 27164

 1     requesting that a draft order to prevent war crimes and punish

 2     perpetrators.  The end result was an order which stated "each military

 3     officer who knows of the perpetration of violations of the principles,

 4     rules and regulations of international war law who does not initiate

 5     disciplinary or criminal procedure shall be personally responsible."

 6     3D483.

 7             This example and many others show that General Ojdanic met the

 8     last requirement under Article 7(3), that he took the necessary and

 9     reasonable measures to prevent the crime or punish the perpetrators, and

10     details of this appear in our final brief at paragraphs 516 to 534.

11             As an example, during the war General Ojdanic issued some 18 good

12     faith orders directed at compliance with the international laws of war.

13     Most of these orders are set forth in our brief, and they are all listed

14     in General Radinovic's military expert report 3D116 paragraphs 153, 154.

15             Additionally, issues related to the observance of humanitarian

16     law were regularly discussed in the daily briefings of the General Staff.

17     These briefings are summarised in the military expert report of General

18     Radinovic at 3D1116, pages 155 to 157.  That might be paragraphs.  I'm

19     not clear on that.  It's either pages or paragraphs.

20             I wonder, Your Honours, if this might be an appropriate -- I'm

21     going on to another subject now which will take a few minutes of

22     explanation.

23             JUDGE BONOMY:  Have you much longer?

24             MR. SEPENUK:  I would say no, Your Honour.  I would say 10 -- 15

25     minutes.

Page 27165

 1             JUDGE BONOMY:  Very well.  We will adjourn now and resume at

 2     11.15.

 3                           --- Recess taken at 10.44 a.m.

 4                           --- On resuming at 11.17 a.m.

 5             JUDGE BONOMY:  Mr. Sepenuk.

 6             MR. SEPENUK:  Thank you, Your Honour.

 7             JUDGE CHOWHAN:  Well, I would apologise asking you something at

 8     the very beginning instead of disturbing you and spoiling your eloquence.

 9             Now, on page 44, line 2, what I read it as that the lower command

10     did not report things, but what is -- what is attributed to them is

11     inadvertence and not anything purposeful, and then we also find that the

12     communication -- there were bottlenecks in communication and the general

13     did not receive it.  Now, what can this be due to, lack of leadership or

14     something purposeful where -- where things have been suppressed?  If it

15     is inadvertent, it is very strange.  And how can it be inadvertence in a

16     disciplined force like the army?

17             And then we find Louise Arbour talking of certain things and

18     communicating it, and of course he took action, as you said.  But these

19     are paradoxes which have bothered me, and I thought that it's good that I

20     made a request to you to kindly clear it up so that I acknowledge things

21     in the right way.

22             I'm very grateful.

23             MR. SEPENUK:  Thank you, Your Honour.  Well, in good part

24     following the testimony of General Vasiljevic who said that in his

25     opinion he thought it was inadvertent, that the crimes were being

Page 27166

 1     processed and prosecuted in the lower units and therefore the decision

 2     was made that it wasn't really necessary to report the crimes up the

 3     line, and he was satisfied that the crimes were indeed being prosecuted

 4     and I go into that a little bit further in the last part of my argument.

 5             Yes, it could be a lack of leadership.  It could be a lack of

 6     control.  I don't think -- you know, it should have been reported up.  We

 7     don't deny that at all.  But I don't think there was any -- certainly no

 8     criminal intent here or even criminal negligence.  Indeed be criminal

 9     negligence if the crimes were reported and not punished.  That would

10     indeed be criminal.  But the failure to report the crimes in our view was

11     inadvertent.  Now, again it may have been a failure of leadership but I

12     would say nothing more than that.

13             JUDGE CHOWHAN:  But wasn't there an intelligence system reporting

14     to the chief of army staff about all these happenings?  When somebody in

15     a remote place, I mean so remotely away like at The Hague and the

16     knowledge of it and things are being formulated by him and reported and

17     then action is taken.  Now, this I was not able to reconcile, and I seek

18     your help and what have you to say to help me in this?

19             MR. SEPENUK:  Well, of course yes, there was and intelligence

20     system through the intelligence division and dealing mostly with the KLA

21     and NATO, and then course there was the security administration dealing

22     with the report of crimes and what not, but again I'm -- I wish I could

23     do better and to explain the so-called bottleneck, but again to me, at

24     least to the Ojdanic Defence, the bottom line is that these crimes were

25     reported ultimately and prosecuted.

Page 27167

 1             Is that satisfactory, Judge Chowhan?

 2             JUDGE CHOWHAN:  I'm very grateful that you responded to this.

 3             MR. SEPENUK:  Thank you, Your Honour.

 4                                [Trial Chamber confers]

 5             JUDGE CHOWHAN:  What the Honourable Judge was telling me was that

 6     you did understand me when I said Louise Arbour.  That's the Prosecutor

 7     here.

 8             MR. SEPENUK:  Oh, sure.  Louise Arbour, correct, absolutely, yes.

 9             We were dealing with attempting to show that General Ojdanic met

10     the last requirement under Article 7(3), that he took the necessary and

11     reasonable measures to prevent the crime and to punish the perpetrators.

12     We just talked about the number of orders that he issued directed at

13     compliance with the international laws of war.

14             The OTP in paragraph 825 of its brief claims that the

15     distribution of some 1.300 copies of the rules of combatants for

16     combatants was "clearly insufficient" to meet the needs of the 14.000

17     soldiers of the Pristina Corps.  This statement is based on a misreading

18     of the record by the OTP which I'd now like to clarify.

19             The Trial Chamber will recall the small four-page laminated

20     pamphlet 3D988 entitled "rules of conduct for soldiers," which briefly

21     and clearly summarises a soldier's duty to treat both combatants and

22     civilians humanely.  I'm sure you all remember that little laminated

23     pamphlet that fits in your wallet or inside pocket.

24             Both General Gojevic, the chief legal officer of the army General

25     Staff, and General Farkas, the chief of VJ security, testified that this

Page 27168

 1     leaflet was distributed to every soldier in the army at the beginning of

 2     the war.  That's Gojevic at 16647-48 and Farkas at 16315.

 3             The OTP conveniently overlooks this testimony and states at

 4     paragraphs 824, 825 of its brief that only 350 copies of this pamphlet

 5     was distributed to soldiers in the Pristina Corps.  We suggest that the

 6     OTP has gotten it wrong here again, but I think in fairness to the OTP

 7     that the OTP might have been inadvertently misled by material contained

 8     in the Radinovic report at paragraphs 186 to 190.  That expert report

 9     does state at paragraph 189 that 350 of these pamphlets from a larger

10     group of some 1.300 copies were distributed to soldiers in the 3rd Army.

11             In fact, what apparently was distributed, as indicated by the

12     statement of Ojdanic Defence witness General Gajic, that's 3D1084 at

13     paragraph 145, was "1.300 copies of the International Red Cross brochure"

14     which cited various obligations of combatants to observe international

15     humanitarian law.  That's at 15277.  In any event the testimony of

16     Generals Gojevic and Farkas that every soldier received a copy of the

17     rules of conduct was reaffirmed by General Radinovic in his expert

18     report.  If the OTP had just read a bit further down the page, General

19     Radinovic states, "Moreover, such short and succinct formulations are

20     amenable to printing in pocket format which too made it possible for the

21     rules to be found in the pocket of every VJ member in Kosovo and

22     Metohija."  That's 3D1116, paragraph 191.  It's really clear that every

23     VJ soldier received a copy of this pamphlet.

24             Just as General Ojdanic fulfilled his duty to prevent crimes, so

25     did he did ensure that all reasonable and necessary measures were taken

Page 27169

 1     to prosecute and punish criminal offenders.  A matter of hours after NATO

 2     air-strikes had commenced on the evening of 24 March 1999,

 3     General Ojdanic ordered that all wartime military courts and wartime

 4     military prosecutors be mobilised and that they organise their work

 5     immediately.  In under one week's time, the chief of the legal section of

 6     the General Staff had inspected and visited wartime judicial organs in

 7     the 3rd Army and determined that they were "ready with regard to

 8     personnel and expertise to carry out tasks within their competence."

 9     3D804, paragraph 3.3.

10             As an example of the diligence -- of his diligence in overseeing

11     the military justice system we call the Trial Chamber's attention to

12     Annex G of our final brief.  This annex shows that General Ojdanic

13     received an update on the work of judicial organs on 63 of 78 days during

14     the war.  Of course the military justice system had its flaws, but when

15     problems were identified, they were immediately addressed and corrected.

16             General Gojevic, who was in charge of the legal section of the

17     General Staff, testified that on 12 May 1999, he wrote a report to the

18     Supreme Court staff -- to the Supreme Command Staff stating his

19     assessment that "The volume and complexity of the tasked faced by

20     military judicial organs was too great a load for the existing

21     establishment and after making adjustments and overcoming initial

22     difficulties, the military judicial organs have become fully

23     operational."  P2826, paragraph 2.3.

24             Further, General Gojevic testified very significantly that he did

25     not know of a single reported war crime that was not investigated and

Page 27170

 1     processed through the criminal justice system.  16686.

 2             We should note that General Ojdanic himself questioned General

 3     Gojevic after the war about the relatively low number of persons

 4     prosecuted for serious war crimes.  We noted General Gojevic's answer to

 5     General Ojdanic in our brief at paragraph 310, and we suggest it's worth

 6     repeating because his words make sense.  I hope it makes sense to the

 7     Trial Chamber.  He said, "In times of war it's very difficult to identify

 8     perpetrators and find them because the perpetrators hide very well.

 9     There is an atmosphere of fear, so that even those in the immediate

10     surroundings of perpetrators are reluctant to report them.  And even in

11     cases when only fighting men were concerned, this seemed to be true as

12     well.  That is the flip side, the negative side of solidarity, but it's

13     typical of all soldiers that they are bound by ties of solidarity

14     regardless of the circumstances."  That's at 16685.

15             As the war drew to a close and as the extent of certain crimes

16     began to come to light at the level of the Supreme Command, a briefing

17     was held by the Supreme Command Staff.  According to the notes of this

18     briefing which is Exhibit 3D493, General Farkas reported that a full

19     analysis had been made of the problems involving humanitarian crime.  He

20     said that most of the atrocities and serious crimes from looting to rapes

21     had been documented and were now before military court organs.  He said

22     that around 95 per cent of the perpetrators had been arrested or were

23     under investigation.

24             At this meeting General Ojdanic issued a document ordering that

25     military judicial organs should prioritise their prosecution of crimes

Page 27171

 1     and that violations of international law must be the first priority.

 2     That's Exhibit 4D487.

 3             Therefore, the evidence in this case shows that General Ojdanic

 4     had no knowledge of the specific crimes alleged in the indictment and

 5     therefore no ability or duty to prevent or punish them -- or punish them.

 6     The evidence also shows that he was affirmatively informed that the

 7     movement of the population was the result of either NATO bombing or KLA

 8     actions, not that of the army.  And the evidence further shows that when

 9     he was informed of violations of international humanitarian law being

10     committed by members of the army in Kosovo, he took swift and repeated

11     steps to investigate, prevent, and punish those crimes.

12             A review of the jurisprudence that sets out the standards of a

13     top commander such as General Ojdanic shows that his actions were

14     appropriate and proper.  This jurisprudence is fully set forth in our

15     brief and I don't think bears repeating here.  I would only reiterate for

16     the Trial Chamber that during the war General Ojdanic was located

17     primarily in a bunker hundreds of feet under the ground in Belgrade and

18     wholly dependent upon the information he received from subordinates.  His

19     country was subject to massive air bombardment, mass insurgency and the

20     prospect of imminent land invasion.

21             We ask you to take account of this in judging whether

22     General Ojdanic's actions met the standards of accountability for a top

23     commander as we so strongly urged.

24             To conclude and to step back for a moment to look at the big

25     picture, if General Ojdanic was in fact responsible for the deportation

Page 27172

 1     and murder of Albanians, either individually or as a superior commander,

 2     don't you think you would have heard some evidence about that?  The

 3     Prosecution in this case has a good part of the entire international

 4     community behind it.  It has tremendous evidence-gathering capabilities,

 5     not only from NATO and its member countries but from Serbia itself.  It

 6     has access to the most candid conversations of General Ojdanic, whether

 7     it be electronic surveillance, the verbatim transcripts of the General

 8     Staff collegiums, or the insiders who have come to testify during this

 9     trial, particularly Generals Vasiljevic and Dimitrijevic.  It has access

10     to all the orders issued before, during, and after the war, and all of

11     the combat reports.  From all of these sources there is no smoking gun,

12     not even a wisp of smoke.  There is no evidence against General Ojdanic

13     for one simple reason.  He is not guilty.

14             You are all experienced Judges.  You know what is fair and you

15     know proof beyond a reasonable doubt when you see it.  The Prosecutor's

16     case has fallen short of this standard and it's done so not for lack of

17     effort or for lack of good advocacy.  It has fallen short because

18     General Ojdanic is truly not guilty.  I suggest that to find

19     General Ojdanic guilty you would have to affirmatively disbelieve

20     Prosecution witness General Vasiljevic who showed how General Ojdanic did

21     all he could to get to the bottom of crimes in Kosovo.  The Court's own

22     witness, General Dimitrijevic, who affirmed that General Ojdanic was

23     sincere in his efforts to get accurate information from Kosovo and the

24     numerous officers of the Yugoslavian army who came into this courtroom in

25     person or by videolink and told it as it was.

Page 27173

 1             Indeed, it is hard to imagine more exemplary conduct by a

 2     military leader during a war.  General Ojdanic organised seminars, issued

 3     orders, distributed pamphlets, screened volunteers and banned

 4     paramilitaries to ensure that the standards of international humanitarian

 5     law would be observe.  When he learned of problems he ordered

 6     investigations, sent personal emissaries, upgraded the military justice

 7     system, alerted President Milosevic, advocated the creation of a state

 8     investigation commission and made personal pleas to Albanians to remain

 9     in their homes, and all for a battle he never sought and a war he never

10     wanted.

11             Mr. Visnjic and I have been privileged to represent

12     General Ojdanic.  He's no criminal.  He's a good man, a good soldier and

13     a good commander.  He is unjustly accused.

14             The events that unfolded in Kosovo in 1999 are tragic indeed, but

15     a rational judgement must declare that General Ojdanic stood for peace

16     and conciliation, not for war and discrimination.  He should be acquitted

17     on all counts of this indictment.

18             JUDGE BONOMY:  Does that complete?

19             MR. SEPENUK:  That completes it, Your Honour.

20             JUDGE BONOMY:  You're just frightened to move off that seat.

21             MR. SEPENUK:  It's my last gasp, Your Honour.

22             JUDGE BONOMY:  Well, thank you, Mr. Sepenuk, for these

23     submissions.

24             We will now hear closing arguments on behalf of Mr. Pavkovic.

25     Mr. Ackerman.

Page 27174

 1             MR. ACKERMAN:  Your Honours, good morning and good morning to

 2     everyone in this court.  To some extent I guess I share the feelings of

 3     Mr. Fila about how much can really be accomplished by arguing to you

 4     after you have sat there for two years and so carefully listened to what

 5     we've been doing here and followed this, and I -- it's been remarkable to

 6     me really how diligent you've been in that regard, and I think we're all

 7     privileged to have such a good Trial Chamber to try this case to.  But

 8     you know, I'm an old trial lawyer, and old trial lawyers are like

 9     racehorses.  You put them in the gate and you open the gate and they're

10     going to run until you tell them to stop, so here I go.

11             We've come to the end of what I think is a long and sometimes

12     dusty and sometimes unmarked road, and I'd probably be remiss,

13     Judge Bonomy, if I didn't also say in the spirit of motions that I've

14     filed one without any speed limit, but here we are.  I'm not even going

15     to make an attempt to summarise the two years of testimony and exhibits

16     that we have seen as we've gone through at this time.  I think my

17     approach to this argument must be simply one of -- of looking at what the

18     OTP says is their best case and telling you why I believe it is not, and

19     so that's what I'm going to do.  On occasion I will go beyond the OTP

20     brief and argument, but rarely, I suppose.

21             You've heard three persons speak in front of me, and I suspect it

22     has come to your attention that all of them were critical of various

23     parts of the Prosecution's brief as being misleading or as not being

24     accurate, and I think that's a bit remarkable for a brief in a case of

25     this nature, and I must say to you that I was stunned a bit when I

Page 27175

 1     started looking at the Prosecution's brief and looking at what was said

 2     and how the footnotes failed to support many of the things that were

 3     said, and I say that with some regret, because I have huge respect for

 4     Mr. Hannis and the people who have worked under him throughout this

 5     trial, and I don't know how it happened that their brief got in the state

 6     that it got into, but it is not what it should be, in my view, and I will

 7     spend some time talking to you about that.

 8             I say that at the beginning to second the arguments made by my

 9     colleagues but also to urge all of you to pay very particular attention

10     to the things that are written in the Prosecutor's brief and make certain

11     that there's evidence that supports them and make certain that what they

12     cite in the footnotes really supports what they say in the paragraphs.

13             You all know that as you consider the evidence in this case

14     that -- that what we expect of you and what the law expects of you, what

15     the tradition of our profession expects of you is that you judge the

16     evidence in this case by the standards that protect the freedom and

17     integrity of the rule of law, and that is you judge it by the standards

18     of holding the Prosecution to their task of proving guilt in this case

19     beyond a reasonable doubt.  And you can hear Mr. Hannis tell you that you

20     have to adopt the most likely thing, and you have to use Occam's razor

21     and say, you know, apply that to it, but if -- Mr. Hannis probably would

22     like that to be the law but that's not the law, and you must apply the

23     law and I know you will.  You know that when there are two reasonable

24     conclusions you always must adopt the one that's most consistent with the

25     innocence of the person standing before you.

Page 27176

 1             There are to me some fairly obvious questions that you should ask

 2     as you analyse the evidence in this case.  Mr. Stamp spoke to you the

 3     first day about witness credibility.  Mr. Hannis talked about witness

 4     credibility, suggesting that some witnesses had an interest that would

 5     make their testimony maybe less than credible.

 6             The first thing I want to say about that is we probably couldn't

 7     have tried this case at a more unfortunate time, but that's the way the

 8     time worked out.  We tried the case involving the events in Kosovo right

 9     in the middle of the negotiations regarding the independence of Kosovo,

10     so that there were -- there were political considerations on both sides

11     with the witnesses that came in to testify in this case.  They had to

12     have in their minds, it seems to me, what effect their testimony might

13     have on the efforts to achieve independence by Kosovo, and I think it's

14     just something to keep perhaps in the back of your minds as you make your

15     way through this evidence.

16             Mr. O'Sullivan talked to you a little bit about this issue, and

17     that is what was it the NATO intervention was really about.  It was

18     publicly announced as a -- an action to prevent a humanitarian crisis.  I

19     think if anything is clear at this point it is that that is not what it

20     was, that that was merely a pretext for what I say was an effort to

21     change the Milosevic regime.  The goal here was regime change, not

22     avoiding a humanitarian crisis.  And there's a lot of evidence that

23     supports that.  There's the testimony of John Crosland, who said that's

24     what it was about, who knew that's what it was about.  And there's the --

25     the indictment in this case.

Page 27177

 1             I think it's interesting, if there was a humanitarian crisis

 2     going on, that would have to be a crisis that would involve the

 3     commission of crimes, it would seem to me, either deportations or murders

 4     or something of that nature, something that would qualify as a

 5     humanitarian crisis caused by individuals, people, and yet the first

 6     crime that's charged in this indictment is not until the 24th of March,

 7     the day that NATO started bombing.  So that's when the humanitarian

 8     crisis began according to the indictment of the Prosecutor.

 9             I -- I have the good fortune in this case to represent

10     General Pavkovic.  General Pavkovic is an intelligent, accomplished

11     professional soldier and has been throughout his entire military career.

12     Every step through his career has been exemplary.  He was at the top of

13     his class in every course that he took in his career in the army.  He was

14     promoted ahead of his colleagues in almost every promotion that he

15     received in his career in the army.  His superiors always gave him the

16     highest possible ratings.  And all of this is in the evidence in this

17     case.

18             You will remember Shaun Byrnes talking about General Pavkovic.

19     He said he was direct and professional.  He referred to him as a

20     soldier's soldier who didn't get involved in lectures on Serb history or

21     politics.  He also said that his view of the VJ was that it conducted

22     itself both professionally and honourably both before and during the

23     conflict.  Now, that's a VJ that was under the command of

24     General Pavkovic, a general who insisted that those under his command

25     conduct themselves professionally and honourably and would not

Page 27178

 1     countenance their failure to do that.

 2             And while I'm talking about Shaun Byrnes, let me just mention

 3     that -- what he said about the allegations of excessive force.  It says

 4     his view that shelling that VJ did with their heavy weaponry was not

 5     intended to cause casualties but more in the nature of causing harassment

 6     or fear, and that is to, I say, warn the civilian population that there

 7     may be an action coming up and that they should get out of the way.

 8             If I could point you to one thing in this record which I think

 9     virtually compels the acquittal of General Pavkovic, it is the evidence

10     about the meetings of the 16th and 17th of May in Belgrade when

11     General Ojdanic asked General Pavkovic to come to Belgrade and talk about

12     some things he'd heard about crimes being committed.

13             Pavkovic came and reported both in a meeting on the 16th with

14     Ojdanic and others and the next day in a meeting with Milosevic, and you

15     will recall that in both of those meetings Pavkovic urged the formation

16     of an investigative commission to look into the matter in depth and make

17     determinations about the commission of crimes, who was responsible for

18     the commission of crimes, and to really get to the bottom of the issue.

19             Now, that is not something that would be done by a person who

20     believes that the result of that investigation would be to implicate him.

21     That's the recommendation of a person who knows that he himself is clear

22     of any accusation about that but that also knows there is something fishy

23     going on down there that somebody ought to take a look at.  And I think

24     it's notable that both General Ojdanic, and the next day General Ojdanic

25     and Sainovic agreed with Pavkovic about that and urged Milosevic to do

Page 27179

 1     that, and Milosevic didn't, and we don't know why.  The only thing we

 2     really know was at the end of that meeting Milosevic urged some people to

 3     remain after the army personnel had left, and it would be interesting to

 4     know what happened in that next meeting.

 5             I can assure you this:  If General Ojdanic had proposed the

 6     formation of such a commission and General Pavkovic had opposed it, that

 7     would be some of the strongest evidence the Prosecution could possibly

 8     have against him.  The other side of that shows you his innocence.

 9             You've heard a lot about the -- the Prosecution's theory on the

10     JCE, the plan, the modification of the ethnic balance, the use of NATO

11     bombing as cover for carrying that out, and I'm not going to spend very

12     much time talking about because you've heard all about it already but

13     just suggest to you that the Prosecution hasn't even come close to

14     proving that to you beyond a reasonable doubt.  It's argued in our brief.

15     It's argued extremely well in the Ojdanic brief.

16             The Prosecution argued on the first day and they argue in their

17     brief, Ms. Kravetz talked about it and the brief talks about it, and what

18     they say is that the evidence for the existence of this joint criminal

19     enterprise is the crime base that you have heard about, that people left

20     Kosovo, that people were killed, that some rapes occurred, that the fact

21     that those happened throughout Kosovo is evidence that there was a plan.

22             And what I ask you to do is just pick a war.  I don't care which

23     one you pick, just pick any one.  What happens in wars when bombs are

24     being dropped is people leave and people are killed and rapes happen, and

25     other crimes happen, lootings happen.  All these things happen.  The fact

Page 27180

 1     that Kosovo looked the same as every other war we've ever seen does not

 2     prove that there was an overarching joint criminal enterprise plan in

 3     Kosovo.  It just shows you that it was another war where things happened

 4     just like happened in every other war.  That's not a pattern that proves

 5     JCE.

 6             On the second day beginning at page 82 of the transcript,

 7     Mr. Hannis went through an exercise where he started with Ojdanic's Grom

 8     3 directive and traced it down through a series of first an order from

 9     the 3rd Army and then down through a series of orders from the Pristina

10     Corps to the brigade level and so forth to show you that the -- the

11     actions that were carried out were first ordered at the very top and then

12     carried down through the chain of command and then carried out around the

13     country in accordance with that Grom 3 directive.

14             These are all perfectly legal orders.  They were appropriate

15     military actions against terrorists.  They don't order the commission of

16     any crimes.  They're the kind of orders you'd expect to find in any

17     professional military organisation trying to protect its borders and deal

18     with a terrorist uprising at the same time.  They prove no crime charged

19     in this indictment.  They're no indication whatsoever of the existence of

20     the JCE as alleged.

21             In his presentation Mr. Hannis made suggestions about

22     possibilities.  He raised matters that you should view as suspicious, but

23     this is a criminal case, remember.  Allegations must be proved beyond a

24     reasonable doubt.  Suspicions and possibilities are not sufficient for

25     conviction.

Page 27181

 1             One thing that you've heard the Prosecution talk about, and

 2     you'll find it in their brief, paragraph 696 is one place, when they're

 3     trying to use things that happened in 1998 as evidence regarding 1999,

 4     one of the arguments is that the powers that be, General Pavkovic and

 5     others, should have known in 1999, because of what they learned from

 6     1998, that crimes were going to be committed and should have done

 7     something about that, because they say it was the same forces.  But first

 8     of all you haven't heard one bit of evidence that it was the same forces.

 9     In fact, what you've heard is it was not.

10             The people down on the ground doing the fighting were conscripts

11     who were cycling in and out of Kosovo all the time.  They'd finish their

12     military obligation and they were gone and new conscripts would come in,

13     and new conscripts were coming in all the time, and that is why you see

14     General Pavkovic over and over sending out orders regarding adherence to

15     the laws of war, because he knew about every 30 days there was a new

16     group of soldiers down there and he wanted to remind his commanders to

17     remind them to adhere to the law.

18             There's been an enormous amount of -- of smoke and argument about

19     the alleged illegal use of the VJ in Kosovo in 1998.  It's been talked

20     about throughout this trial.  You know what the law is.  You've seen the

21     law, and you know that the VJ could have operated legally as it in fact

22     operated in Kosovo in 1998.  I think this whole issue about illegal use

23     of the VJ was a smokescreen created by Perisic and his supporters in the

24     General Staff who were expressing their jealousies and who were

25     disgruntled with their loss of power.

Page 27182

 1             If Perisic was really concerned that General Pavkovic was somehow

 2     using the VJ illegally, he was the commanding General.  All he had to do

 3     was remove him.  He didn't even take the first step to do that.  So I

 4     think it's all just made up.

 5             It all arose out of that letter that Perisic sent to Milosevic

 6     and his complaints about the use of the VJ.  And one thing that I think

 7     has gotten completely befuddled in all of this, and it has even confused

 8     some of my colleagues as you may have just heard.  Perisic is not saying

 9     to Milosevic, "We shouldn't be using the VJ against terrorists in

10     Kosovo," at all.  He's not saying that at all.  He's saying, "To use the

11     VJ against terrorists in Kosovo we need to declare a state of emergency

12     or state of war.  Now, let's do that.  Let's declare that state of

13     emergency or state of war because I want to mount a really, really

14     massive campaign against these people."  And they wouldn't do that.  And

15     there were reasons they wouldn't do that, and General Pavkovic set out

16     those reasons pretty clearly in his October report.  They were dealing

17     with a diplomatic situation that simply would not have allowed them to do

18     what Perisic wanted done, and that is declare this state of war or state

19     of emergency.

20             The contention that the army was being used unconstitutionally,

21     we keep hearing that, and I think I distinctly said in my arguments at

22     the 98 bis level, if the Prosecution can find anywhere in the

23     constitution any constitutional provision that was being violated by the

24     use the army, tell us what it is, and that's never happened.  And you can

25     read the constitution, Your Honours, until you turn blue and you won't

Page 27183

 1     find it, because there's nothing unconstitutional about the way the army

 2     was being used.

 3             Paragraph 856 of the Prosecutor's brief says:  "Samardzic tried

 4     to initiate disciplinary proceedings against Pavkovic."  You will not

 5     find any evidence, direct evidence, in this record that General Pavkovic

 6     ever used a Pristina Corps unit except pursuant to an order coming down

 7     through the chain of command, not one.  There's no evidence beyond the

 8     uncorroborated evidence of Dimitrijevic that Samardzic made any efforts

 9     to discipline Pavkovic, and I suggest to you Dimitrijevic is simply part

10     of the Perisic cabal that does not like what happened in terms of their

11     loss of power.

12             In the footnote to paragraph 856, the OTP relies on the

13     Samardzic [sic] testimony, and also they say that this is also proved by

14     Exhibit P922, but that exhibit says absolutely nothing about a Samardzic

15     effort to discipline Pavkovic, although they cite it in support of their

16     assertion.

17             64, line 13 says Samardzic testimony.  It should be Dimitrijevic

18     testimony.

19             I suggest to you this whole thing was an invention of

20     Dimitrijevic.  You've got to remember that in the assessment of the

21     performance of General Nebojsa Pavkovic from the period 29 June 1997 to

22     10 January 1999, an assessment written by General Samardzic, who

23     Dimitrijevic tells you tried to initiate disciplinary proceedings against

24     him, he says about General -- General Pavkovic as commander of the

25     3rd Army, Pristina Corps:  "He showed superior qualities that he had been

Page 27184

 1     continuously improving on over time as a result of several previously

 2     held important posts in the Pristina Corps command and the Main Staff of

 3     the Yugoslav army.  Owing to such results and related intellectual and

 4     moral qualities, General Pavkovic was exceptionally promoted to the rank

 5     of lieutenant general.  His assessment is positive with the mark

 6     exceptional."  And I think it was General Vasiljevic who told you that's

 7     the highest possible rating that he could have gotten.

 8             At paragraph 701 of their brief the OTP makes this argument:

 9     "President Djukanovic raised the issue of possible crimes committed in

10     Kosovo."  Now, I underline possible crimes.  "Raised the issue of

11     possible crimes committed in Kosovo by pointing to information indicating

12     that the Pristina Corps actions were not always in accordance with the

13     constitutional role of the army and the decisions of the Supreme Defence

14     Council."  And the reference there is to P1000, pages 9 and 10.

15             This concern expressed by Djukanovic does not raise the issue of

16     possible crimes committed in Kosovo as contended by the Prosecutor.  It's

17     an irresponsible contention.  He did not raise any issue of possible

18     crimes committed in Kosovo.  He was just harping along the Perisic line

19     about the unconstitutional use of the army in Kosovo.  We all know there

20     was no unconstitutional use.

21             Mr. O'Sullivan clearly pointed out to you in his remarks that in

22     that meeting when shown additional material, Djukanovic then indicated

23     that he was satisfied with that.

24             Another thing we heard about 1998 in Kosovo was that the VJ was

25     using disproportionate force.  One of the places you'll see it in the

Page 27185

 1     Prosecution's brief is in paragraph 709 where they refer to Naumann who

 2     said that Milosevic was presented with somewhere between five and ten

 3     incidents in which disproportionate force had been used.

 4             There's been no really thorough examination in this case of what

 5     that phrase means, "disproportionate force," and what it is.  What we

 6     have is the opinion of some of the observers that were -- that were in

 7     Kosovo at the time that -- that they thought that disproportionate force

 8     was being used.  And I've given a lot of thought to what that is.  It's a

 9     strange concept in many ways.  It makes sense if what you're saying is

10     that you shouldn't use heavy weaponry against persons wielding spears and

11     throwing rocks.  I would agree that that force in that nature would be

12     disproportionate.

13             But I don't understand it to mean that the force you use must be

14     roughly equal to the force that you're going against so that the same

15     number of fighters are killed on each side.  Clearly it can't mean that,

16     but that seems to be what's being suggested by the Prosecution here, that

17     the Serbs should have let the KLA kill more of their people instead of

18     trying to deal with them the way they did.

19             They argue that Serb use of tanks and artillery when terrorists

20     didn't have any was disproportionate force, and I suggest to you that is

21     not the law and was never meant to be the law, and again, pick a war, any

22     war, and you'll find that that's not the case in any war.  And how much

23     more disproportionate could force possibly get if you apply that kind of

24     a test to it than the dropping of cluster bombs on a country that had no

25     effective air force and a rather ineffective air defence capability?

Page 27186

 1     Cluster bombs and uranium munitions, things of that nature.  I mean, the

 2     Serbs weren't dropping cluster bombs on any NATO countries.

 3             I suggest to you you're not required to risk the lives of your

 4     soldiers in any way that gives advantage to a terrorist uprising.

 5     Terrorists were shooting at Serbs from houses, they were shooting at

 6     Serbs from even mosques on occasion, we've learned.  And you have an

 7     absolute right to shoot back with a tank or an artillery weapon.  You

 8     don't have to send your soldiers marching out across the field and have

 9     them mowed down by people in those buildings.

10             I was going to talk to you about the I think absolutely

11     ridiculous allegation in paragraph 104 that Ojdanic should have

12     disciplined Pavkovic.  Mr. Sepenuk covered that pretty well.

13             What should he have disciplined him for?  For what?  Is there any

14     evidence that Pavkovic was committing any crimes that he should have been

15     disciplined for?  Was there any evidence that he was doing anything he

16     should have been disciplined for other than being an absolutely exemplary

17     soldier and carrying out the orders that were given to him?

18             You know, you have an obligation if you're an officer in the

19     military to carry out the orders you receive unless those orders order

20     you to violate the law.  Look at every order in this case and you'll not

21     find one that orders General Pavkovic to violate the law.

22             JUDGE BONOMY:  Mr. Ackerman, which paragraph is that in the OTP

23     brief?

24             MR. ACKERMAN:  Well, my note says 104, but I may have made a

25     mistake.

Page 27187

 1             JUDGE BONOMY:  It's not 104, but it doesn't matter.  Please

 2     continue.

 3             MR. ACKERMAN:  There's some indication that, and I'll get into

 4     this in more detail, that maybe he was not properly reporting.  I've

 5     already talked about the false allegation of illegal use of the VJ in

 6     1998, so I don't know what it is that the Prosecution thinks Ojdanic

 7     should have disciplined him about.

 8             Ojdanic sent Vasiljevic and Farkas down to Kosovo, you know, to

 9     look at what was going on down there, and they came back and said, "Well,

10     we found out that all the crimes that are committed down there are being

11     detected and prosecuted.  Ninety-five per cent of them are being

12     prosecuted and there aren't any problems, none at all."

13             It's paragraph 837, Judge.

14             JUDGE BONOMY:  Thank you.

15             MR. ACKERMAN:  I want to talk about another big issue of the

16     Prosecution and that is the breaching the October agreements, and I

17     suggest to you this is probably one of the more silly arguments that they

18     make, because you know if you don't have evidence to prove your

19     indictment, then you sort of figure out other -- other things you can

20     accuse people of that kind of might make them look bad.

21             You know, it's not against the law for the October agreements to

22     have been breached.  That is not an offence that is within the

23     jurisdiction of Your Honours.  They're not charged in this indictment

24     with breaching the October agreements.  I tell you it's a smokescreen.

25             In paragraph 776 they contend Ojdanic facilitated the deliberate

Page 27188

 1     breaching of the October agreements.  In paragraph 781 they contend that

 2     breaching of the agreements jeopardised a peaceful solution to the Kosovo

 3     problem.  How?  We all know what happened.  When the October agreements

 4     came into force KLA took advantage of the Serb adherence to the

 5     agreements, expanded its forces, brought in new arms and equipment,

 6     retook much of the territory that had been taken during the spring

 7     offensive.  Breaching those agreements didn't jeopardise a peaceful

 8     solution.  The agreements themselves jeopardised a peaceful solution

 9     because they put the KLA back in a position of power, back in a position

10     where they were carrying out the same kind of attacks against the Serbs

11     and fellow Albanians that they'd been carrying on before.

12             Even the Prosecution agrees that the KLA took major advantage of

13     the situation.  Mr. Hannis said on Wednesday the KLA came back just as

14     strong or stronger than ever.  He told you that in the context of

15     suggesting to you that the 1998 anti-terrorist strategy was a failure and

16     a new strategy needed to be found, but actually the 1998 strategy did

17     work, and the October agreements came along, restricted the Serbs, gave

18     the KLA a wide-open gate to walk through, and with Western help and

19     encouragement they walked right through it.

20             You may remember an intercepted conversation between two KLA

21     members that's in evidence in this case.  It's in our brief at paragraph

22     120, one of them saying to the other, now the verifiers have arrived.

23     Things will be good.  They don't dare attack us, but you attack them.

24     Guard your houses at night.  Go out in the field from time to time, carry

25     out an attack and then return to the base.

Page 27189

 1             We learn a lot from that.  Guard your houses at night means they

 2     were in their houses at night this these villages where they were being

 3     protected by the villagers.  They'd go out and carry out these attacks

 4     and then return to those villages and then they wouldn't be wearing their

 5     uniforms.  And it is exactly what we've been hearing the way they

 6     operated.  And the OTP contends that Pavkovic was making up that the KLA

 7     was attacking Serb forces and just pretending that the KLA was attacking

 8     Serb forces, when they say exactly that's what they were going to do.  We

 9     know the observers were not make any serious efforts to curb the KLA.

10             And as Judge Nosworthy pointed out, when the Serbs entered into

11     this agreement they must have expected that there would be some kind of

12     parity between the opposing forces.  They must have expected that the KLA

13     would be restricted in some way as they were being restricted, that it

14     really would achieve what the Western powers said they were trying to

15     achieve there, that it would bring about a cease-fire and stop the war,

16     and instead, what happened was the KLA was allowed to run wild and

17     achieve the strengthening and rearming that was soon clear to everyone.

18     Remember John Crosland's statement about that.

19             Sometimes when I was sitting and listening to the arguments of

20     the Prosecution I -- it sounded as if they were talking about the Serbs

21     having invaded some independent third country, that they had illegally

22     invaded an independent third country.  I think we have to keep in mind

23     that this was happening in their country.  This was happening in Serbia,

24     a place where their army had an absolute right to be, a place that was

25     their place, and you know, just -- you all are from a different country

Page 27190

 1     in this world, and what would happen if an insurgent uprising like this

 2     started in your country?  What if a bunch of terrorists started trying to

 3     take over part of your country?  You'd deal with it, I suggest, in pretty

 4     much the same way the Serbs tried to deal with it here, to bring it to an

 5     end, to save their country.

 6             What the Serbs actually did in 1998 when they brought in some

 7     additional people, additional forces down toward the end there, may have

 8     saved a lot of lives.  We have no idea what kind of a bloodbath may have

 9     occurred had the KLA simply been allowed to run unchecked throughout

10     Kosovo because of those October agreements.

11             And then one has to ask what's the relevance of violation of

12     these agreements in this case?  There could be relevance, I suggest, if

13     the OTP could show that any additional forces brought in to Kosovo in

14     violation of the agreements engaged in the commission of war crimes.

15     There's absolutely no showing of that.  There's no showing that any

16     soldier or any unit brought into Kosovo in violation of the October

17     agreements committed any war crimes.  So it's just irrelevant smoke

18     that's designed to obscure the issues in the case.

19             They contend that Pavkovic on his own brought the 72nd Special

20     Brigade into Kosovo without authority, and that shows you that Pavkovic

21     on his own was violating the October agreements, but they only refer you

22     to P1947, the document where Pavkovic suggests resubordination of that

23     brigade to the Pristina Corps.  They neglected to point you to P1948

24     which is the 19 February order of General Ojdanic where he orders the

25     resubordination of that unit to the 3rd Army "for the purpose of carrying

Page 27191

 1     out anti-terrorist and anti-sabotage tasks."

 2             So again General Pavkovic is simply carrying out orders that he

 3     receives.  And clearly, you know, it wasn't designed that they be on the

 4     edge of Kosovo.  It was designed that they be in Kosovo "for the purpose

 5     of carrying out anti-terrorist and anti-sabotage tasks."  You couldn't

 6     carry out anti-terrorist tasks outside Kosovo.  It's another specious

 7     argument against General Pavkovic and they knew or should have known that

 8     it was a false argument.

 9             Paragraph 25, on a different subject now, of the brief of the

10     Prosecution says:  "All the accused shared Milosevic's sentiments about

11     Kosovo and were loyal to him."  And then this:  "Some such as Nebojsa

12     Pavkovic had close personal ties as well."  And they cite you to

13     Vasiljevic, P2600, paragraph 21.

14             That statement of Vasiljevic says nothing about close personal

15     ties between Pavkovic and Milosevic.  What he speaks of is an indirect

16     family connection which may have influenced the relationship.  That's

17     what he says, indirect family connection which may have influenced the

18     relationship, not close family ties [sic].

19             Paragraph 137 the Prosecution talks about the removal of

20     officers --

21             72, line 15 I said close personal ties, not close family ties.

22             Paragraph 137:  "The SDC minutes provide," important words here,

23     "concrete evidence that JCE members Milosevic and Milutinovic removed

24     individuals who were unwilling to further the goals of the JCE from key

25     positions and replace them with other accused who had shown their

Page 27192

 1     commitment to implementing these goals.  Totally unsupported allegation

 2     of the OTP.  Mr. O'Sullivan has discussed it at length and I'll touch on

 3     it very briefly.  The OTP used the phrase concrete evidence.  What is

 4     concrete evidence?  That's evidence that's rock hard.  It's unassailable.

 5     It can't be questioned or countered.  They say this exhibit provides

 6     concrete evidence that Milosevic and Milutinovic removed individuals who

 7     were unwilling to further the goals of the JCE.

 8             I ask you, is this really a responsible argument?  Is there

 9     anything in this document where they talk about removing persons

10     unwilling to further their goals and replace them with those who will?

11     Where's the evidence that Pavkovic was willing to implement the goals of

12     the JCE?  Zero.  Nowhere does Pavkovic say oh, yeah, okay, I'll deport

13     people and I'll kill people.  If that's what you want, I'll do that.

14     That's what you have to hear for this to make any sense.  It makes no

15     sense.  He hadn't ever deported any Albanians before, hadn't ever killed

16     or raped any before, to our knowledge.  Where do they get the idea he was

17     willing to carry out those goals?  I think it's a desperate statement by

18     a Prosecution that really has no concrete evidence at all.  It's not even

19     remotely logical.

20             Paragraph 916, talking about Pavkovic again.  He had the

21     authority to immediately remove commanders and soldiers from their

22     positions.  During the war Pavkovic made daily visits to the field where

23     he reviewed and inspected the units to assess the implementation of

24     orders.  Pavkovic also had the ability to remove volunteers who

25     participated in criminal activity.

Page 27193

 1             Well, I guess the question you have to ask is when was it in the

 2     record we learned that Pavkovic became aware of specific named volunteers

 3     committing criminal activity that he failed to remove?  When was it

 4     Pavkovic became aware of commanders ordering the commission of war crimes

 5     that he failed to remove?  Where is the evidence that he became aware of

 6     specific soldiers committing war crimes that he failed to remove?

 7     Nowhere.  Nowhere.  And that has to be there or this makes no sense and

 8     has no impact.

 9             Why don't they say, if Perisic was telling the truth he had the

10     authority to remove Pavkovic and didn't?  Why don't they argue that?

11             I want to go now to this whole issue of arming and disarming.

12     Paragraph 872.  Pavkovic engaged the Pristina Corps to monitor the

13     behaviour of the Albanian population and disarm Albanian civilians along

14     the border belt.

15             Why -- tell me, why in a situation that existed in Kosovo at this

16     time was it a bad idea to disarm Albanians who were in an uprising

17     against Serbia?  Why was that a bad idea?  If you had that -- as I said

18     earlier, if you had that kind of an uprising going on in your country,

19     wouldn't you try to disarm the people that were involved in that

20     uprising?  How many lives were saved by the disarming of these people?

21     How many lives were saved by removing weapons from the hands of possible

22     KLA terrorists?  You heard that little quote, the intercept, go out and

23     conduct an action and go back to your village.  That's exactly what they

24     were doing, and the VJ was going into those villages along the border

25     belt and taking those weapons out.  So they weren't going out and

Page 27194

 1     conducting actions and then fleeing back to their villages like they

 2     said.  Disarming them is what could bring peace and what could save

 3     lives.  It's not a crime.  It's sensible.

 4             How many lives would have been saved in Northern Ireland if the

 5     IRA had been disarmed earlier than it was?  How many?  Hundreds maybe?

 6     We don't know.

 7             We do know that terrorists didn't always wear uniforms.  We know

 8     they were supported by and lived in the villages, and their effectiveness

 9     in killing Serbs and fellow Albanians who sympathised with Serbs depended

10     to a great extent on the number of weapons they could get their hands on.

11     Disarmament lessened this violence and the killings they could inflict,

12     and lives absolutely must have been saved thereby.  There is no evidence

13     it was done so that they could be indiscriminately killed, which is the

14     suggestion that's made by the Prosecution, I guess.  There's no evidence

15     of that.

16             Paragraph 873.  As early as June 1998, Pavkovic issued an order

17     to organise local non-Albanian civilians into local defence units and to

18     arm them with sniper rifles, automatic rifles, semi-automatic rifles and

19     light machine-guns.

20             Well, again a very misleading statement to you.  The allegation

21     is that Pavkovic did this, that it was Pavkovic's responsibility and that

22     what he was arming was non-Albanian civilians.

23             You already know from what you've heard at least in these

24     arguments and probably in the trial that this was done due to an order

25     that Pavkovic received from Samardzic and you heard that Samardzic

Page 27195

 1     detailed in a meeting how he had done this and how he had issued this

 2     order.  What's misleading is the nature of the order itself.

 3             If you look at P1415 which is the order signed by Pavkovic, first

 4     of all you will see that he refers -- that he says it's being issued

 5     pursuant to the 3rd Army's previous order, 168-104, and then who is it

 6     he's arming?  Paragraph 1, organise and carry out technical preparations

 7     for distribution of weapons and ammunition to military conscripts

 8     assigned to war units of the Pristina Corps, the Pristina military

 9     district and the 202nd logistics base.  This is not non-Albanian

10     civilians.  It's conscripts.  Are they suggesting you're not supposed to

11     arm your soldiers?  Is that the Prosecution's position, that it's illegal

12     to do that?  That's what that order was.

13             Paragraph 126 talking about the armed non-Siptar population.  The

14     Prosecution makes this unsupported statement:  "The absence of written

15     orders setting out the task of the non-Albanian population suggest that

16     field commanders issued verbal instructions to arm locals and directly

17     organise these groups on the ground."  Absolutely no support in the

18     evidence for that, none.  The transcript reference about it speaks only

19     of the ability to issue tasks to secure certain facilities or features

20     and roads, nothing more.  Gergar, who was the one who testified about

21     this, said there weren't even any non-armed Siptars in his whole area of

22     responsibility, so he never even encountered the possibility of having

23     them guard roads or certain facilities or features, but that's all they

24     were ever intended to do in the first place.  And again this is another

25     one of these red herrings, another one of these puffs of smoke that's

Page 27196

 1     being blown your way.  Where in the record is there evidence that crimes

 2     were committed by these people?  None.  And arming them is not a crime.

 3     It only becomes a crime if you arm them with intent to go and commit

 4     crimes and order them to do so and they go do it, and that's not here.

 5             If you just take the allegations that are made by the Prosecutor

 6     and turn them over and say so what was supposed to happen then, they get

 7     silly at times.

 8             You've heard about Pavkovic failed to report.  Well, failed to

 9     report what?  In the first place, they admit that it had no effect.

10     Paragraph 740:  "Despite failures in reporting by the 3rd Army command,

11     Ojdanic received the relevant information from other sources."  So it

12     made no deference according to the Prosecution.  And if it made no

13     difference, then it makes no difference to you.  It's totally irrelevant.

14             I want to talk about, Judge Chowhan, your question to Mr. Sepenuk

15     about this reporting issue a little bit.  You talked about the Louise

16     Arbour letter, for instance.  I think it's really important to understand

17     that that letter was sent on the 26th of March, the second day of the

18     war.  There is no way Louise Arbour could have had any concrete evidence

19     about what was going on in Kosovo on the 26th of March.  No way.

20             The Prosecution in fact refers to it as a notice from Arbour

21     basically saying, please understand we're paying attention, and if war

22     crimes are committed down there, we're going to probably do something

23     about it, and that's all that was.

24             The other thing that's -- that's important with regard to this

25     issue of reporting, Judge and Judges, the -- the duty to report with

Page 27197

 1     regard to crimes is a duty to report to the military prosecutors.  That's

 2     who those are supposed to be reported to.  That's what the law says and

 3     that's what all the witnesses told you.  The crimes are to be reported to

 4     the prosecutors.  The brigade commander is to report to the prosecutor.

 5     The brigade intelligence officer is to report to the prosecutor.  The

 6     brigade security officers are to report to the prosecutor.  And

 7     Vasiljevic and Farkas basically told you that, that what they learned was

 8     that the security officers at the brigade level were dealing with these

 9     crimes.  They were being properly prosecuted, and they thought as long as

10     they were taking care of it without any problem, they didn't have any

11     obligation to report.  Well, if they didn't report, then it didn't go up

12     the security organ chain of command, which was a chain of reporting that

13     existed, and you'll see it in our brief.  There was a security organ

14     chain separate from the army chain and outside the army chain, so they

15     should have been reporting up that chain and they weren't.  But that was

16     their job.  Their job was dealing with crimes and reporting those crimes

17     to the military courts and reporting about those.

18             What the combat reports were designed to report and what they

19     were reporting at the order of General Pavkovic was the work of the

20     military prosecutor's offices and the military courts and you'll see, and

21     I've brought it up before with you, you'll see 3rd Army combat report

22     after combat report after combat report which contains a paragraph on the

23     work of the military prosecutor's office and the military courts, and

24     that's what was required to be reported in the combat reports and that's

25     what was reported.  So there wasn't any failure there either.

Page 27198

 1             And there's absolutely no evidence in this case that at any time

 2     there was an abandonment of the Prosecution of war crimes.  At no time

 3     did the military prosecutor say, oh, we're not going to prosecute any

 4     more.  We're through prosecuting.  We're done with this.  What happened

 5     was this war ended.  The Serbs had to leave Kosovo.  A lot of the cases,

 6     because people were then leaving the military, had to be turned over to

 7     civilian courts.  There was substantial chaos through that period, but

 8     you'll see if you look at the history since the war that there have been

 9     many, many prosecutions in civilian courts of crimes that were committed

10     by soldiers in Kosovo during this war.  So the Serbs never stopped

11     prosecuting and never withheld prosecutions.  They continued doing it.

12             The allegation that Pavkovic didn't report these kind of things

13     when he knew about them is defeated to some extent by the Prosecution's

14     own brief.  You know, when they're arguing against one of the defendants

15     they sometimes give you favourable evidence with regard to another one.

16             In paragraph 711 they're talking about Sainovic, and they say:

17     "Pavkovic said that he'd informed Sainovic that he'd seen a group of

18     Skorpions and Boca in Prolom Banja wearing NATO type uniforms and the

19     insignia of the SAJ.  Pavkovic said he'd ordered military organs to

20     establish responsibility in respect to the bodies disinterred at Izbica.

21             THE INTERPRETER:  Kindly slow down for the interpreters.

22             MR. ACKERMAN:  And he had informed Sainovic of this.  So there's

23     Pavkovic when he knows something reporting it all the way up to Sainovic.

24             Paragraph 555:  "The necessary and reasonable measures to prevent

25     or punish which a superior must take are those measures that are within

Page 27199

 1     his material possibility to be evaluated on a case-by-case basis.  In

 2     essence it is a commander's degree of effective control, his material

 3     ability which will guide the Trial Chamber in determining whether he

 4     reasonably took the measures required either to prevent the crime or to

 5     punish the perpetrator.  Generally speaking, necessary measures are the

 6     measures appropriate for the superior to discharge his obligation showing

 7     that he genuinely tried, genuinely tried to prevent or punish and

 8     reasonable measures are those reasonably falling within the material

 9     powers of the superior."

10             Now, you know, that is almost a description of General Pavkovic

11     and who he is and what he did.  He squarely fits in this category of

12     person that they're describing.

13             There are, I think, 27 orders from Pavkovic that were admitted in

14     evidence in this case where he is ordering adherence to the laws of war,

15     ordering adherence to the rules of war and suggesting that failure to

16     adhere will result in swift and sure punishment.  Twenty-seven times.

17     Now, should he have done it 28 times?  Is that the Prosecution's

18     position?  Or 30?  What if he'd only done it 15?  Would that maybe have

19     made him guilty?  Who knows.  But I don't -- I don't think if you look at

20     any other military commander in his position in the time-frame that this

21     operated in that you would find 27 such orders issued by that commander.

22     I don't think that's -- I think that's extraordinary.  It's an

23     extraordinary effort to prevent and punish.

24             Your Honours, I think -- I think I could go ahead and break now

25     if you want.  I'll stay on this prevention and punishment thing for a

Page 27200

 1     little bit longer and maybe it's more than 10 minutes, so it's up to you.

 2             JUDGE BONOMY:  All right.  We'll adjourn now, Mr. Ackerman, and

 3     we will resume at 1.45.

 4                           --- Luncheon recess taken at 12.45 p.m.

 5                           --- On resuming at 1.47 p.m.

 6             JUDGE BONOMY:  Mr. Ackerman.

 7             MR. ACKERMAN:  Thank you, Your Honour.  I hope everyone enjoyed

 8     their lunch.  I did.

 9             I'm a little sleepy, yes, Mr. Milutinovic, I am.

10             My colleagues told me I need to clarify one of the things I'd

11     talked to you about just a little bit.  I talked to you about the 27

12     orders that Pavkovic issued regarding adherence to the laws of war, and I

13     know I mentioned earlier, I think I did, that one of the reasons for that

14     number was new recruits were coming in all the time and he wanted to make

15     sure that they were advised.

16             Another part of that is that he was getting also orders coming

17     down from General Perisic or General Ojdanic or General Samardzic to that

18     effect that he was simply passing on in accordance with his

19     responsibilities.  So that effort was not just being made by Pavkovic, it

20     was an effort that was going all up the line in the VJ, and so I think

21     that clarifies that a bit, I hope.

22             Now, paragraph 833, the Prosecution tells you with some alarm

23     that Gojevic testified that only 12 per cent of the crimes prosecuted by

24     the military courts related to war crimes, crimes against life and limb,

25     the types of crimes charged in the indictment, and I say to you I think

Page 27201

 1     that is a high number, because most of what was going on that was being

 2     dealt with by the courts were the desertions and the failures to report

 3     and things of that nature.  So if 12 per cent of the things they were

 4     prosecuting were crimes that were war crimes, could be seen as war

 5     crimes, crimes such as murder and those kinds of things, I think that's a

 6     high number and shows that the job was being done extremely well,

 7     especially when you consider that this all happened in a very compressed

 8     little period of time, and look how long it's taken us to get this case

 9     to trial.  How many years has it been since the events happened in Kosovo

10     before we got this case to trial, before the Prosecutor was able to get

11     this case to trial.  So the fact that they didn't try everybody within

12     the 78 days of the war is meaningless.  And they couldn't have done it.

13     It's not possible.

14             Paragraph 836:  "Following his visit to Kosovo in June 1999,

15     Farkas personally informed Ojdanic of this bottleneck in reporting.

16     While Farkas testified that the measures were taken to punish

17     perpetrators and the issue was simply the lack of reporting, then they

18     say this is not credible in light of the disproportionally small number

19     of prosecutions for serious crimes against civilians given the scale and

20     type of the crimes alleged in the indictment."

21             The same argument.  Looks to me like they were doing a really

22     good job if they were doing 12 per cent.

23             We talk about -- the Prosecution talks about, you know, these

24     people being replaced because they would do the bidding of Milosevic.

25     Two people who were brought into the situation by Milosevic are two of

Page 27202

 1     the people the Prosecution relies on fairly heavily, and that's

 2     Vasiljevic and Farkas.  They were both brought in by Milosevic.  Were

 3     they brought in because they were willing to do his bidding, as they say,

 4     what regard to some of these other people, willing to carry out the JCE?

 5     If so, why aren't they sitting back here behind us also?

 6             These are people that were brought in by Milosevic that were sent

 7     down to look into the matter by Ojdanic and came back and reported

 8     exactly what they saw.  There's no argument they had special

 9     relationships with Milosevic or that they were his cronies or they were

10     covering for anybody.  And when you are a military commander at the

11     levels of Pavkovic and Ojdanic, you send people like that down to

12     investigate things for you because you trust them to do it.  You choose

13     people you trust to do it, and there's no indication in this case that

14     Vasiljevic and Farkas were not trustworthy in that regard.  And when they

15     come back and report to you, you're entitled to believe those reports.

16     You're entitled to accept those reports.  You certainly would accept them

17     over what some journalist somewhere writes because he's been sitting in

18     Brussels listening to Jamie Shea.  That's about the worst evidence you're

19     going to find is what Jamie Shea says in those stupid briefings in NATO.

20             Paragraph 900, they're talking about Pavkovic's awareness of the

21     commission of crimes.  They say Pavkovic was aware of allegations of a

22     mass grave in the area of Izbica in early April 1999.  Pavkovic says he

23     heard about it but was informed by his subordinates that no VJ personnel

24     were involved, so he took no other action than reporting it to the SC

25     staff.

Page 27203

 1             So he did everything he was supposed to do.  What else was he

 2     supposed to do?  He heard about it.  He investigated it.  People told him

 3     that nobody that he had effective control over was involved.  He reported

 4     that he had investigated it and what his findings were.  And again he's

 5     entitled to rely on those people he sends out to do those investigations

 6     for him.

 7             Paragraph 902:  Orders issued by Pavkovic show that he was aware

 8     of the criminality of his troops.  For example, on 17 April, he issue the

 9     following warning:  "According to some reports, there have been a number

10     of individual cases where the provisions or the instructions on conduct

11     in combat or those of the international law of war were not fully adhered

12     to in combat operations.  Some commands and units have failed to devote

13     the necessary attention to the suppression of incidents related to

14     looting and crime."

15             Exactly what he's supposed to do.  When he hears about a

16     situation like that, he sends out an order and he says, "I'm not going to

17     put up with this.  This has to end."  That's what he's supposed to do.

18     That's what the law requires him to do.  That's what he did.

19             903:  "In early May, Farkas and other members of the SC staff

20     reviewed reporting within the 3rd Army.  Farkas discovered that Pavkovic

21     was receiving information about the criminal behaviour of his

22     subordinates but was not passing that information up the chain.  In order

23     to clarify this situation, he met with Pavkovic."

24             Again the OTP has got it wrong.  If you look at the testimony,

25     Farkas did not say that Pavkovic was receiving these reports and not

Page 27204

 1     passing them on.  He said the reports were being made up to the level of

 2     brigades but not passed on from there.  So the brigade level security

 3     people or brigade level commanders were not reporting those things on up

 4     into the Pristina Corps and then finally on up to the 3rd Army, up

 5     through the Pristina Corps.  So Pavkovic couldn't even have known.

 6             Here's what Pavkovic says, here is his exact words:  "Yes, there

 7     were differences and the difference was that some crimes were committed

 8     and some of the measures that had been prescribed had not been complied

 9     with.  Reports in those units up to the level of the brigade were

10     regularly reported to the superior commands, but this information never

11     reached us, so I learned that criminal offences were being committed,

12     crimes, including crimes in this area."

13             And one of course always must wonder what would have been

14     different if they were being prosecuted, if they were being punished, if

15     the trials were going on at the highest rate they could possibly happen,

16     then what relevance is the reporting?

17             Paragraph 920:  "As the military justice system was functioning

18     well, according to the Prosecutor, the manifestly inadequate prosecution

19     of perpetrators of crimes against ethnic Albanian civilians was clearly a

20     consequence of the military's failure to report these types of crimes to

21     the military courts."

22             First of all this doesn't implicate Pavkovic.  There is no

23     evidence in this case that he was aware of a crime committed by a

24     specific individual or group of individuals that he failed to report to

25     prosecutorial authorities.  The OTP has provided no list of persons who

Page 27205

 1     committed crimes against Albanian citizens that have not been prosecuted

 2     and prosecutions continue today even as we stand here.  For this

 3     paragraph to have any relevance in this case and significance against

 4     Pavkovic, it was incumbent on the Prosecution to identify persons over

 5     whom Pavkovic had effective control who committed crimes who were not

 6     prosecuted and to show that Pavkovic had knowledge of these persons and

 7     their crimes and did nothing or suppressed that information.  No such

 8     showing has been made with regard to any crime, not one.

 9             I want to talk about the crime base just very briefly because

10     it's pretty heavily covered in our brief and in other briefs that you

11     have before you, but in paragraph 312 the Prosecution talks to you about

12     the rapes that were committed and just makes this statement:  "The rapes

13     were not isolated acts committed by individuals but were intended to

14     terrorise the population and push people to flee their homes."  There's

15     absolutely no evidence that would support such a statement.  Of course

16     there were rapes.  You're dealing with -- you know, just look at any war.

17     You're dealing with young soldiers, not pillars of society especially,

18     and these kinds of things just happen no matter what you do to try to

19     keep them from happening, and frequently what they are is isolated

20     indents that have nothing to do with the war itself but just

21     out-of-control individual people.  And to make that stick to anybody in

22     this case, they have to go beyond just proving that rapes occurred.

23             I abhor rapes.  They shouldn't happen, but that doesn't mean that

24     they become war crimes just because they do.

25             313:  MUP and VJ seized the identification documents from the

Page 27206

 1     refugees in order to make it impossible for them to return to Kosovo.

 2             First of all, the seizure of documents was not a uniform thing,

 3     as you know.  Obviously not a part of any plan or it would have been

 4     uniform, and as you pointed out the first day, Judge Bonomy, and I swear

 5     to you I had this in my notes before you pointed it out, Serbs could not

 6     have possibly believed that they were going to defeat NATO and thus keep

 7     Albanians from returning.  That is a silly proposition beyond belief.

 8             JUDGE BONOMY:  It was a question from me, Mr. Ackerman.

 9             MR. ACKERMAN:  It was.  It was.  Yes, it was.

10             JUDGE BONOMY:  We'll reach conclusions in due course.

11             MR. ACKERMAN:  I'm sorry if I suggested it was a conclusion.  I

12     didn't mean to do that.  Perhaps some individual half drunk people

13     standing at the border thought it would be a really cool idea to take

14     away identity documents, you know, kind of a if you don't like Serbia

15     then you don't have any right to have Serbian identity documents, but

16     there wasn't any organised effort to pull that off or it would have been

17     done a little better.

18             JUDGE BONOMY:  Just a comment on this.  When -- when Mr. Hannis

19     comes to respond, it might assist us if he's able to identify who, if

20     any, among the witnesses actually lost their documents.  I appreciate

21     there's plenty of evidence about this activity, but I'm not sure that any

22     who actually gave evidence lost documents.  There may have been some.

23             Mr. Ackerman.

24             MR. ACKERMAN:  You know, I told you a little earlier that -- that

25     one way to look at an allegation made by the Prosecution is just turn it

Page 27207

 1     over and look at the other side of it.  Ponder what would have happened

 2     in this case if the Serbs had decided, "We better not let anybody leave

 3     Kosovo.  We better close the borders and keep them all here or they'll

 4     suggest that we are guilty of deportation."  So they closed the borders

 5     and keep all the Albanians in the country.

 6             JUDGE BONOMY:  Sorry, Mr. Ackerman.  Please continue.

 7             MR. ACKERMAN:  No problem.  Keep all the Albanians in the country

 8     while NATO bombs are falling down on their heads and several of them wind

 9     up getting killed.  Then we'd be defending a human shields case, wouldn't

10     we?  The Prosecution would say, well, they kept them in the country to

11     use them as human shields.  They wouldn't let them go to safety.

12             Frankly, I see nothing wrong with the Albanians being allowed to

13     leave that country, even being encouraged by some to leave that country

14     because there was bombing going on.  It was dangerous.  It was not a safe

15     place to be.  And so you get away until it's over and then you come back.

16             I think there's 2 million people that have left Iraq.  Nobody

17     made them leave.  Thousands and thousands left Ossetia when the Georgians

18     decided to go in there.  They're now starting to return even today.  You

19     just don't have wars where bombs are being dropped where you don't have

20     refugees.  It just doesn't happen.  People are people, people get scared.

21     They try to get away, they want to run away, they want to get away from

22     what's happening.

23             There is no crime regarding the passage of the Albanians across

24     the border.  There was no deportation.  It was clearly the safest thing,

25     considering what was happening.  And everyone knew when the war was over

Page 27208

 1     they would be coming back, those who wanted to.  Some want to stay in

 2     other countries and that's where they are.

 3             Paragraph 318 is where the Prosecution starts going through the

 4     crime base, the evidence regarding the crime base.  Frequently what you

 5     see in there is the phrase that this was done -- this was committed by

 6     the forces of FRY and Serbia.  General Pavkovic didn't have effective

 7     control over the forces of FRY and Serbia.  This is a failure of proof.

 8     When the Prosecution says forces of FRY and Serbia, what they are saying

 9     to you is it was committed by unidentified persons.  We don't know who

10     they were, so we'll call them forces of FRY and Serbia.  And that may

11     even be wrong.

12             Look at the one incident we talked about today, that Norman

13     talked about today that they had in their brief about these people being

14     killed and it was finally discovered it was done by civilians and

15     civilians were prosecuted for it.  And I suppose if we didn't know who

16     they were, then the Prosecution would call them forces of FRY and Serbia.

17     In other words, unidentified persons.

18             362:  The beginning of the joint VJ/MUP operations coincide with

19     the crimes committed in the Prizren area and with attacks on the villages

20     of the municipality, and then this sentence:  There simply were no other

21     significant armed forces in that area at the time the crimes in the

22     indictment were committed."  No support for that statement at all.  How

23     would they know that?  They weren't there.  They presented no evidence

24     about it.

25             627:  "The mass killings and other crimes committed in Kosovo in

Page 27209

 1     1998 and 1999 were of such magnitude and covered such a wide area that

 2     they could not be kept secret and were widely known."

 3             Well, I don't know of any evidence that they were widely known.

 4     I think most of them were discovered after the war was over when they

 5     were able to get in and talk to witnesses.  I don't think there was any

 6     widely known about it.  There's certainly no evidence of that.

 7             In the initial arguments of the Prosecutor, Ms. Kravetz was

 8     telling you about the trains from Pristina, about people being

 9     transferred by trains from -- from Pristina, I'm sorry.  She says, this

10     is her language:  "These civilians were transported by train to the

11     Macedonian border, and as we've heard from several witnesses, including

12     Mr. Bucaliu who worked at the Urosevac train station during the last week

13     of March and going into the first week of April, the frequency of trains

14     travel from Pristina to Orahovac and on to the Macedonian border was

15     increased and so were the number of cars on the trains in order to be

16     able to deport larger numbers of people out of the province."

17             Again not true.  Bucaliu's testimony on 8 September on

18     cross-examination by my colleague Mr. Aleksic, Judge Bonomy asked him

19     what he was -- why he was going into this since there was a log, and

20     Mr. Aleksic says he is he trying to prove that in that period 25 March to

21     3 April nothing was happening.  The trains were not operating for five

22     days and after that, there was only one train in two days.  There was not

23     a major increase in terms of trains, and Judge Bonomy says, well, you can

24     just make those submissions in argument.  I don't think anyone's arguing

25     with you about that.  And Aleksic says thank you and Judge Bonomy says,

Page 27210

 1     well, carry on with your question so he does.  And he says, Mr. Bucaliu,

 2     in this document that you explained to us in detail there's no

 3     information about the number of passengers and number of train cars; is

 4     that right?

 5             "A.  Unfortunately, yes, it's true.  There's no number for the

 6     carriages and for the passengers."

 7             Ms. Kravetz told you on page 14 of the first day the Defence have

 8     advanced several different possible explanations as to why the population

 9     left.  We heard that the arguments in the sense that the population left

10     because there were NATO bombing, the KLA was forcing them to flee, and we

11     heard arguments that they were fleeing because there was fighting going

12     on.  We say that these reasons do not explain why the population left.

13     Well, we sat here at 98 bis and heard Mr. Hannis tell us, 12594 in the

14     transcript, "We're not saying that some of these people didn't leave

15     because of the bombing.  We're not saying that some of these people

16     didn't leave their villages because they were told to do so by the KLA."

17     So it wasn't just Defence that was making those arguments.  It was

18     Mr. Hannis himself who was telling you that people were leaving because

19     of NATO bombing and leaving because of being told to do so by the KLA.

20             The problem, of course, is we don't have any numbers as to how

21     many left because of NATO bombing and how many left because they were

22     told to do so by the KLA, and we don't know if that is a number that

23     exceeds 10 even for sure, because to even believe it exceeds 10, you have

24     to accept the testimony of people who might have a reason for telling you

25     that story.

Page 27211

 1             At page 3510 of the first day's transcript, I think it was the

 2     first day, yeah it was, Judge Bonomy asked Mr. Stamp what he was saying

 3     about the responsibility for the Meja killings.  Mr. Stamp responded that

 4     it was the evidence of Pnishi and Peraj and Dedaj that people were killed

 5     by both the VJ and the MUP, and this is simply not the evidence.

 6     Paragraph 586 of our final brief details that evidence.  Pnishi did not

 7     describe VJ as committing any killings.  Peraj says the VJ was not

 8     involved in killings, not even near where the bodies were found.  The

 9     only witness who even begins to implicate VJ was Witness Dedaj, who told

10     at least three different stories at different times about what she'd

11     observed and whose evidence I'd suggest to you is not capable of being

12     accepted, certainly not as proof beyond a reasonable doubt.

13             Mostly from Prosecutor Stamp but perhaps from others you kept

14     hearing the phrase massive crimes, the massive crimes that were committed

15     in Kosovo.  Now, Your Honours, I'm familiar with what happened in Rwanda

16     where a million people were killed, at least.  I'd call that a massive

17     crime.  I'm familiar with what happened at Srebrenica where maybe 8.000

18     people were killed.  I'd call that a massive crime.  But I think in the

19     context of this case, massive crime is a major exaggeration, major

20     exaggeration.  It doesn't apply to Kosovo.  Of course there were crimes.

21     Every war has crimes, but this was not a case of massive crimes.

22             I want to talk about the Joint Command for just a moment.

23     Paragraph 201, the Prosecution says "Although the composition of the

24     Joint Command changed in 1999 as Minic and Matkovic were no longer in

25     Kosovo, Lukic, Pavkovic and Lazarevic remained members of the joint

Page 27212

 1     command."  There's absolutely no evidence to support that.  They don't

 2     even -- they don't even put a citation there to anything.  They just say

 3     it.

 4             Even if there was an active frequently meeting Joint Command in

 5     1999, and I suggest there was not, but even if there was, you must

 6     understand that Pavkovic was no longer the commander of the Pristina

 7     Corps.  His participation in that Joint Command in 1998 was as commander

 8     of the Pristina Corps.  I think Samardzic maybe visited those meetings

 9     twice throughout that entire period.  I haven't counted it up.  But once

10     he went up to the 3rd Army it would have not made sense for him to be

11     part of those meetings because they were tactical, they weren't

12     strategic, and he was now a strategic officer.  But that -- that

13     statement that they remain members of the Joint Command is just simply

14     unsupported.  The only thing that could even remotely support it is when

15     Vasiljevic says he went down there in June and went to a meeting and

16     Pavkovic was there and Lazarevic was there, but that doesn't necessarily

17     support that they were members.  Pavkovic could have been doing what

18     Samardzic did on a couple of occasions and that is attend those meetings,

19     and he happened to be in the area.

20             Paragraph 228 the Prosecution argues this to you about the Joint

21     Command:  "Once authority to proceed was issued by the Joint Command,

22     they would each task their subordinates to provide the required units and

23     to liaise with their respective counterparts in the VJ and MUP at the VJ

24     brigade or PJP detachment level where the ground level details of the

25     plan would be finalised."

Page 27213

 1             I don't think that's the paragraph I want to refer to.  Somewhere

 2     here I think it says that Pavkovic would carry out the orders of the

 3     Joint Command and that's the part that I'm trying to refer to.  And I

 4     think it's important that you pay particular attention to Exhibit 4D91,

 5     which I think is one of the most significant documents in this case, as

 6     Mr. Hannis would say, one of my favourite documents.  This is the -- the

 7     order from Samardzic to Pavkovic of 30 July 1998, ordering him --

 8     detailing his duties with regard to this Joint Command.  He tells him

 9     that prior going -- to going to the meetings, he must tell the chief of

10     staff about any requests, possible requests, and explain proposals for

11     the engagement of forces with reinforcements.  And then after he gets

12     consent to agree to some of those proposals or disagree, whatever, he

13     then goes to the meeting, but he goes to the meeting armed with approval

14     from the chief of staff who Samardzic has delegated to take over his

15     duties there in the forward command post.

16             Then after the meeting he's required to report back to the army

17     chief of staff on the proposals that have been accepted or any other

18     subsequent requests which diverge from the proposal and shall ask him for

19     permission relating to those requests.  And then he has to inform the

20     Joint Command of any decisions made by the Chief of Staff regarding those

21     requests.

22             So he was never allowed to do anything that was suggested or

23     proposed by the Joint Command until he got approval from General

24     Samardzic or his deputy, the chief of staff.  That's what that order

25     says, and that's a really important order.

Page 27214

 1             I think Mr. Fila covered this, but Mr. Stamp elevated Djakovic to

 2     membership in the Joint Command and there is simply no evidence that he

 3     was a member.  He was there taking notes.  If you -- if you look at the

 4     beginnings of those meetings where it lists the members present, Djakovic

 5     is never listed as a member present.  He wasn't a member.  He didn't say

 6     he was a member.

 7             On day two of arguments is when Mr. Hannis talked a lot about the

 8     Joint Command as if there's something sinister about this Joint Command,

 9     if it's something criminal and shady and sinister, and there isn't.  In

10     the United States we call it the Joint Chiefs Of Staff.  In your

11     countries your military organisations all have a comparable organisation,

12     because forces must coordinate their activities.  The United States Army,

13     when being supported by the United States Air Force, needs to talk to the

14     air force about what they're going to do and when they're going to do it

15     and how they're going to do it.  They have to have joint meetings,

16     coordination meetings.  Every military organisation in the world has a

17     coordinating body similar to what was created here to deal with this war.

18             JUDGE BONOMY:  And I imagine the membership of any such body

19     would be recognised, Mr. Ackerman, but here we have a dispute about

20     whether people are members or not and certainly some accused contending

21     that there is no such identifiable body.  It's not a straightforward

22     comparison in the cases of some of the accused here.

23             MR. ACKERMAN:  I only speak for one accused, Your Honour, and I

24     speak from what I see and what I think the evidence shows.

25             JUDGE BONOMY:  But it's a mistake to -- to try to oversimplify it

Page 27215

 1     to us, those with no experience of -- of direct experience of the work in

 2     Serbia and the FRY at that time when those who do have that direct

 3     experience seem not to have the same views about its nature.  I think

 4     that -- I use the word "nature" in a more general sense than a more

 5     specific term.

 6             MR. ACKERMAN:  It's difficult for me to hold my tongue, but I

 7     will.  There's something I'd love to say to you that I don't think I

 8     should.  But I will say this:  You have to understand that -- that the

 9     Federal Republic of Yugoslavia was in the process of creating itself when

10     this all started happening.  It had been Yugoslavia, and then it was no

11     longer Yugoslavia.  It became an entity only encompassing Serbia and

12     Montenegro.  So they had to rewrite all their laws.  They had to rewrite

13     their constitution.  They had to rewrite everything.  And you don't

14     always get it right when you're just starting brand new.  You do make

15     mistakes when you're starting brand new.  That accounts for why the Rules

16     of Procedure of this Tribunal have been amended 37 times or something

17     because they didn't get it right the first time.  And you can find

18     anomalies in those first rules.  You'd say how can this be.  Well, it

19     could be because it was a brand new organisation just starting out and

20     they just didn't quite get it right the first time.  So you have to

21     understand that this was a work in progress, this creation of the Federal

22     Republic of Yugoslavia, and that will help you maybe understand why the

23     rules of the SDC and the constitution regarding the SDC seem to be in

24     some conflict, because it was still being created, and that was why there

25     was nothing within the security forces like we might see in our countries

Page 27216

 1     like the Joint Chiefs Of Staff in the United States because they didn't

 2     have an opportunity to consider how they were going to deal with

 3     coordination between all the different parts of the security forces

 4     there.  So it was an ad hoc thing, I think, that was put together here at

 5     the last minute when they realised that they had to keep from shooting

 6     even other.  And how it was organised and who was in it and what it means

 7     in this case remains of course to Your Honours to figure out and

 8     understand, but I don't think it's a sinister body in any way.  There's

 9     no evidence.  Read those -- read those notes all you want.  There's no

10     evidence that they were carrying out some of a JCE.  There's no evidence

11     that they were planning the commission of any crimes.

12             And my colleague Aleksic suggests that you also keep firmly in

13     mind that you're dealing with -- with two sovereignties here to some

14     extent.  The VJ was a federal institution under federal control, the MUP

15     was a state institution under state control, under Serbia rather than

16     FRY.

17             As to the continuation of the Joint Command into 1999, the

18     Prosecution has referred to -- to that meeting where everybody is talking

19     about how and whether it's going to continue and what form it should

20     continue into 1999 and so forth.  Just remember that General Pavkovic,

21     P1468, page 160 said it was his view that the Joint Command should cease

22     to exist.

23             I'm going now to paragraph 891.  By late March 1999, Pavkovic was

24     aware of the mass movement of civilians.  He also was aware that identity

25     documents were being confiscated from ethnic Albanians who were leaving

Page 27217

 1     the territory.  The first thing I will say about that is mass movement of

 2     civilians does not automatically equate with crime.  NATO was bombing in

 3     March.  Common sense tells us that people flee from bombing and common

 4     sense would have told Pavkovic that in 1999 also.

 5             Second is his awareness of the confiscation of identity

 6     documents.  The OTP cites his statement but fails to mention that he went

 7     on to say that after he learned of it, he investigated it and learned

 8     that the army was not involved in it at all.  The army was not the border

 9     police.  It's clear that he was determined to make an end to it if it was

10     being done by persons over whom he had effective control, but it was not.

11             Paragraph 893.  It's under the heading Pavkovic knew of the

12     crimes committed by forces of the FRY and Serbia operating in Kosovo in

13     1999, and there's a report that 32 criminal reports were filed against

14     perpetrators of crimes on the preceding day.  That's a report from the

15     courts, and those are the reports that Pavkovic ordered that he receive,

16     and what you're seeing there is that crimes are being processed, being

17     prosecuted.  Criminal reports are being filed.  That means they're being

18     referred to the courts, and they're saying that's evidence against

19     Pavkovic, but it's actually evidence for Pavkovic if it's being done.

20             There's an argument there that while the military's reporting

21     crimes of attempted murder and murder and abuse and things like that, the

22     report that goes up about that from the 3rd Army doesn't say that, and

23     you know, those are obviously two different reports, two different

24     situations.  Just because they both happened to be 32 criminal reports,

25     they're talking about totally different offences, and it wouldn't make

Page 27218

 1     any sense for anybody to do that to try to cover anything up, anyhow,

 2     because the courts were reporting straight up to the General Staff on

 3     their own outside the normal chain of command anyhow.

 4             There is an allegation, I can't tell you what paragraph --

 5             JUDGE BONOMY:  Mr. Ackerman, just very briefly, could you clarify

 6     one reference for us, P1468, you referred to General Pavkovic's view that

 7     the Joint Command should cease to exist, and you gave a page reference

 8     from P1468.  Could you give us that again?  The transcript says 160, but

 9     there aren't 160 pages and I thought you said 60.  But it's not on page

10     60 either.

11             MR. ACKERMAN:  My note says 160.

12             JUDGE BONOMY:  160.

13             MR. ACKERMAN:  But I don't know if there's 160 pages.  Mr. Hannis

14     talked about it so --

15             MR. HANNIS:  I think there were 163 or 164 pages in the English

16     and it's either 160 or 161.

17             JUDGE BONOMY:  So you're referring to the English then.  All

18     right.  Fine.  Thank you.

19             MR. ACKERMAN:  There's an allegation in the Prosecution's brief

20     and I seem to have misplaced it, but it deals with the allegation that --

21     that Pavkovic knew about crimes being committed by volunteers in --

22     throughout the brigades or something like that.  If I don't have the

23     exact language here, I don't really want to rely on it, but it refers to

24     a document, and what that document shows, it's P1938, on page 2, is on 1

25     April 1999, after only a few days, 25 volunteers were returned from the

Page 27219

 1     Pristina Corps.  Seven were detained for rebellion, killing, robbery,

 2     rape, insubordination and desertion.  Two killings took place, one

 3     volunteer and one woman volunteer were killed.

 4             Now, this doesn't show some wide knowledge of crimes by

 5     volunteers.  It's one group of volunteers in which a few people were

 6     causing trouble, seven, actually, and they were all returned back and

 7     taken out of service.  So what was done there is exactly what should have

 8     been done there, and that's not evidence of any crime on the part of the

 9     General Pavkovic.

10             Paragraph 202, and this comes from P1281, page 2, the police had

11     their own headquarters headed by their own officers.  This is Pavkovic.

12     And the cooperation with the army was coordinated through political

13     actors in Joint Command formed for the purpose.  Therefore, the

14     information to what police force units were doing can best be provided by

15     the police commanders and the members of the Joint Command in charge of

16     them.  And the Prosecution cites that as evidence against Pavkovic but

17     what it really shows is that Pavkovic had no control over members of the

18     MUP.  They were not persons that he exercised effective control over in

19     any way.

20             Paragraph 870:  Pavkovic used his subordinate units to commit

21     crimes.  There's no evidence of that.  There's no evidence he used his

22     subordinate units to commit crimes.  Just because crimes may have been

23     committed doesn't prove this kind of a statement.  They need to prove

24     knowledge and intent.  We know that American and British soldiers

25     committed crimes in Iraq.  That doesn't lead us to conclude that British

Page 27220

 1     and American generals used them to commit crimes.  You'd have to show

 2     that they intended for them to commit crimes, that they sent them there

 3     to commit crimes, not just that they did it.  If -- if commission of

 4     crimes all by itself was enough evidence to make leaders and commanders

 5     guilty, then all of our military commanders would be in gaol and we would

 6     have a problem with our armies with no commanders, you know.

 7             I'm going to try to finish up, Your Honour, because I think I'm

 8     out of time.

 9             One matter that I think is interesting and I think significant

10     also, paragraph 288.  The Prosecution points out the evidence of

11     Baraybar, who concludes at that gunshot injuries were inflicted on

12     persons that were not participating in combat activity.  Mr. Stamp talked

13     to you about that in his arguments the other day.

14             When I saw that it just struck me how could you possibly know

15     that.  How could you know that somebody with a gunshot wound was not

16     engaged in combat activity, so I looked into it.  The problem with that

17     testimony is that Baraybar based his findings on statistics from other

18     combat situations and on two kind of interesting variables.

19             First he said that if these persons had been in combat there

20     should be been more shrapnel injuries and less gunshot injuries.  Well,

21     yeah, that would be true in a maybe typical war situation where weapons

22     other than rifles are being used, but if it's a war situation where only

23     rifles are being used, then it has no meaning at all.  Rifles don't

24     produce shrapnel.  So as a result, if it's only rifles, there would be

25     few or no shrapnel injuries in a pure rifle fight and that wouldn't prove

Page 27221

 1     that these were persons who were killed not involved in combat

 2     activities.

 3             The second thing he said, and his words are interesting, he said

 4     you usually don't see the types of gunshot wounds found here in combat

 5     situations where the fighters are wearing body armour.  It is the case

 6     that KLA often fought out of uniform, you know that, and that they

 7     weren't wearing body armour.  They didn't have all that -- well, all that

 8     fancy body armour and all that kind of fancy equipment and stuff.  So

 9     again taking the statistics from other wars in other conditions with

10     other uniforms and other equipment and trying to apply it to some bodies

11     that he's looking at that have bullet holes in them and say he can draw

12     meaning from that is just ridiculous and it shouldn't be accepted by you.

13             So while the conclusion is maybe statistically correct regarding

14     what he looked at from statistics from other wars, it has no meaning

15     here.  It will certainly not support the statement "The inescapable

16     inference is that forces of the FRY and Serbia murdered these persons

17     during the execution of JCE," which is what the Prosecution tells you.

18     It's far from an inescapable inference.  And as I said, forces of FRY and

19     Serbia means unknown persons.  There's no evidence that these deaths were

20     the cause of any kind of a JCE.

21             In paragraph 271 the Prosecution says paramilitaries were engaged

22     in combat operations with VJ units.  I think there's no evidence of that.

23             THE INTERPRETER:  Could you kindly slow down for the

24     interpreters, please.  Thank you.

25             MR. ACKERMAN:  Paragraph 850, and this is an example of why I

Page 27222

 1     tell you to pay attention to the footnotes:  "During the indictment

 2     period Pavkovic reviewed the work, order and discipline of all units of

 3     the Pristina Corps and those subordinated to it.  Footnote 2129 referring

 4     to P1078."

 5             P1078, Your Honours, is a report for the year 1998.  It says

 6     absolutely nothing about 1999.  So it didn't have anything to do with

 7     during the indictment period.

 8             Paragraph 888:  "Another frequent topic at Joint Command meetings

 9     was arson," and they mention one statement by Sainovic in August, and I

10     thought gee, that doesn't sound like it being a frequent topic.  So I did

11     a search as best that I could, and I found there were actually four such

12     references in the 164 pages of those notes, and I don't know whether that

13     makes it a frequent topic or not, but what's important is that every time

14     it was mentioned, it was mentioned in the context of this is outrageous,

15     this can't happen, this must stop, we can't permit this.  Not you're not

16     burning enough houses, go burn some more.  So it's preventive language

17     that you're seeing, not permissive language.

18             That entire paragraph, by the way, of the OTP brief doesn't speak

19     of plans to commit crimes but efforts to prevent crimes.

20             Paragraph 271 of their brief shows Pavkovic ordering people to

21     take care in anti-terrorist operations so as not to damage residential

22     buildings, and that order was issued on the same day that Sainovic

23     mentions there was a problem in that regard.

24             I think the Pavkovic order probably went out before Sainovic made

25     that remark since those meetings were in the evening.

Page 27223

 1             Paragraph 905.  Paragraph 905 the Prosecution is talking about

 2     the indictment against Milosevic, Milutinovic, Sainovic, Ojdanic being

 3     made public, contained detailed allegations about deportations, forcible

 4     transfers, rapes, murders and so forth and that this put Pavkovic on

 5     notice of the widespread nature of alleged war crimes.  And then they say

 6     the next day Pavkovic got a report from Lazarevic about the failure of

 7     MUP to be resubordinated to the VJ, and then the following day Pavkovic

 8     wrote his report, P1459, which is the subject of some dispute, but the

 9     Prosecutor's position on that is that was written in response to Pavkovic

10     learning about the indictment against Milosevic et al., and I suggest to

11     you that that's simply not true.  The indictment against Milosevic et al.

12     was not made public until 27 May.  If you see our brief at paragraph 240

13     you'll see there was a court order entered in that case ordering that it

14     not be made public until 27 May and we've referred to it in our brief.

15             I've come, Your Honours, now to a page that it says conclusions

16     on the top of it.  I want to -- before I go directly into that, the other

17     thing you have to keep in mind, I think, as you review this evidence is

18     that this wasn't a situation like we have here where we can sit around

19     for hours and contemplate things and think about things and make

20     decisions about things and then take another day and think about it

21     again.  This -- this stuff all happened in the chaos of war, and the

22     chaos of war is not a place where it's easy to deal with your day-to-day

23     operations, and so of course people made a mistake here and there and of

24     course things got dropped through the cracks because communications

25     weren't always what they should have been.  So just in the back of your

Page 27224

 1     minds remember the chaos that war brings.

 2             I want to for the record adopt some portions of briefs of my

 3     colleagues.  Milutinovic 117 through 182 -- no, actually 117 through 244

 4     of Milutinovic, 12 through 151 of Ojdanic.

 5             Now, Your Honours, until Tuesday and Wednesday of this week I'd

 6     spent two years believing that what we were trying here was a war crimes

 7     case, and then Tuesday and Wednesday I learned that it was something else

 8     altogether.  It's a case about the misuse of the VJ in Kosovo in 1998, a

 9     case about the violation of October agreements.  It's a case about

10     failure of reporting.  And these are the things we heard as we listened

11     to the Prosecution's final arguments.  What we didn't hear was who were

12     the persons who committed the crimes contained in the crime base.  Who

13     was their superior?  Did that person know they'd committed those crimes?

14     Did that person report it or cover it up?  Did General Lazarevic know

15     about it if they were VJ members?  Did General Lazarevic tell

16     General Pavkovic?  Did General Pavkovic fail to see that it was reported

17     to military prosecutors?  That's what makes a war crimes case, and that's

18     not what we heard in this courtroom, ever, not ever.

19             What we heard was massive crimes were committed.  The people in

20     this room on the accused bench occupied high positions.  General Pavkovic

21     took prevention measures but not enough.  General Pavkovic took

22     punishment measures but not enough.  That's not a war crimes case.  It's

23     not a case at all.

24             Mr. Hannis wants you to apply Occam's razor, look at the evidence

25     and the simplest explanation is the right one, the one you should adopt,

Page 27225

 1     mostly likely alternative he wants you to adopt, and I know as I said he

 2     wishes that's what the law was.

 3             Mr. Hannis said you should follow the maxim of if it looks like a

 4     duck and walks like a duck and quacks like a duck, it must be a duck.

 5     Well, I was -- I'll tell Hannis a story.  I was in front of a crusty old

 6     county court judge in Texas one day with a motion to suppress some

 7     evidence in a case, and this is a guy who had been on the bench for years

 8     and smoked cigars on the bench and didn't wear a robe, and the prosecutor

 9     on the other side was a young female lawyer, and I argued my motion and

10     she argued their position, and he looked at her and he said, Little Lady,

11     that dog won't hunt, and that was his ruling, and that's what this case

12     is about, Your Honours.  This dog won't hunt.

13             That's not evidence here upon which you can convict

14     General Pavkovic.  I urge you not to do so.  I urge you to do your duty,

15     do what's right and acquit him of all the charges against him.

16             Before I sit down I want to say a thing or two on a kind of

17     personal level.  I've had the great privilege of appearing before the

18     Judges of this Tribunal now for 11.5 years, almost as long as Mr. Fila

19     has.  I share his feelings about that.  It's -- it's a part of my life

20     and a significant part of my life.  A fourth of my life as a lawyer has

21     been spent in this court, but I look back on it with a great deal of

22     pride and a great deal of appreciation, and I'd be remiss if I sat down

23     without thanking this Tribunal and its staff, its Judges, its

24     Prosecutors, its translators, all of the people who have taken part in

25     making this just a truly memorable experience for me.  You have let me

Page 27226

 1     join a very small club, and that includes the four of you up there on

 2     this bench today.

 3             I was aided in this case by a very able co-counsel,

 4     Mr. Aleksandar Aleksic from Belgrade, and I know he also appreciates his

 5     opportunity to be here, and I appreciate all the assistance that he

 6     provided to me in this very difficult case.

 7             I have to leave The Hague tomorrow, Your Honours, so I won't be

 8     here with you next week, and so this is kind of my last hurrah.  You

 9     might remember that I once told you that where I really wanted to be was

10     up on a mountain top breathing clean air and having a rest.  That's where

11     I'm going.  It may not be a mountain top.  It might be a golf course, but

12     it will certainly be a place where I'll be able to relax.  I just want to

13     invite everybody in this room to come there with me, and all you have to

14     do is come to Texas and ask around and maybe I'll see you.

15             Thank you.

16             JUDGE BONOMY:  Thank you for these submissions, Mr. Ackerman, and

17     since we won't have the opportunity to say anything to you at the end of

18     the case, we thank you for the way in which you have conducted the

19     defence of your client and the dignified way throughout in which you have

20     contributed to what for the Judges, too, has been an extraordinary

21     experience.

22             We shall now proceed --

23             MR. ACKERMAN:  Thank you, Your Honour, I appreciate that.

24             JUDGE BONOMY:  We should proceed to hear the submissions for

25     Mr. Lazarevic but perhaps you would clarify first of all for us,

Page 27227

 1     Mr. Bakrac, whether there would be any prospect of him being here on

 2     Monday?

 3             MR. BAKRAC: [Interpretation] Your Honour, I still do not know

 4     that.  My colleague Mr. Cepic and I had planned upon the close of this

 5     session to go to visit him.  What I do know is that he is still in the

 6     detention centre hospital, but I'll be able to fill you in on the details

 7     subsequently once I pay a visit to him.  But I don't think that there are

 8     any problems in us continuing the proceedings, in continuing our work.

 9             JUDGE BONOMY:  Very well.  Please continue with your submissions,

10     Mr. Bakrac.

11             MR. BAKRAC: [Interpretation] Thank you, Your Honour.

12             Good afternoon to all of you, you and everyone else in the

13     courtroom, and I know that especially after Mr. Ackerman's closing

14     arguments at the end it will seem an ordinary phrase, something that more

15     experienced colleagues have said before me, but nonetheless I would like

16     to address the Trial Chamber.  It is up to me now, so I would like to

17     express the great honour and privilege and pleasure it's been to defend

18     General Lazarevic before this Tribunal, before this Trial Chamber and in

19     these proceedings.  It was also a pleasure and privilege to present

20     before you, although I'm not sure that you -- to be able to hold forth

21     before you, although I'm not sure that you always had the pleasure of

22     listening to what I had to say.  But I do sincerely hope that this

23     portion of the courtroom will have the pleasure of hearing your final

24     word and be satisfied by that.

25             Before I go on to my closing arguments, I'd like to inform you

Page 27228

 1     that our Defence team has accepted the Prosecution tactics, although we

 2     know and believe that it won't be successful at the very end, but anyway,

 3     with your permission I'd like to inform you that I'm going to address you

 4     with -- by saying -- or responding to Mr. Hannis's closing arguments, and

 5     my learned friend Mr. Cepic will be speaking to you on the subject of the

 6     brief of the sixth Defence team and crime base details, and so with your

 7     permission, at the very end I would like to take the floor again to speak

 8     about the state of consciousness of my client, his state of mind, and all

 9     the evidence that we have produced and the decision and proposal for

10     judgement.

11             My learned colleagues before me for the most part spoke about a

12     thesis put forward by the Prosecution with respect to the joint criminal

13     enterprise, and so I should just like briefly to add some of my own

14     observations on that subject with respect to the evidence that was

15     presented before this Trial Chamber.

16             The Prosecution claims that the goal of the -- of the joint

17     criminal enterprise was to change the ethnic balance in Kosovo by

18     resorting to criminal means in order to ensure further Serbian control in

19     the territory.  Now, apart from a sentence uttered to that effect and a

20     sentence which is found in the indictment and which is echoed in the

21     final brief and the closing arguments, we have not heard from the

22     Prosecution in what way this change in the ethnic balance would ensure

23     further Serbian control over the province.  We have not seen the nexus

24     between this undertaking and endeavour to throw out a portion of the

25     Albanian population, to expel the Albanian population, and the further,

Page 27229

 1     better easier, or more comprehensive exercise of control over the

 2     province.  I think the Prosecution was duty-bound to provide us with

 3     information of that kind and to explain to us the background, the

 4     substance of such a vast criminal enterprise that they allege.

 5             Now, I'd like to draw the attention of the Trial Chamber to

 6     certain facts, facts which are stipulated by the Prosecution in their

 7     written submissions.

 8             The Prosecution claims that at the time relevant for this

 9     indictment in Kosovo there were about 1.700.000 or 1.800.000 Albanians

10     and that is to be found in paragraph 44 on the Prosecution's final brief.

11     According to the Prosecutor, and this is to be found in paragraph 81 of

12     the indictment, in Kosovo there were between 5 to 10 per cent Serbs.

13     That is to say the ratio between ethnic Albanians and ethnic Serbs in

14     1999 at the time relevant for the indictment was 90 to 10.

15             In his closing arguments of the 20th of August this year,

16     Prosecutor Hannis was very decisive in stating that the Prosecution

17     claims that the intention of the accused was not to expel the entire

18     population but a significant portion, and they also claim that 700.000 to

19     800.000 is that significant portion of the population and that that was

20     precisely the intention of the accused.

21             On the assumption that the claims made by my learned friend

22     Hannis are correct, in this new population constellation in which we

23     would have 1.100.000 Albanians and between 150.000 and 200.000 Serbs, we

24     come to a new ratio of forces, between 80 per cent Albanians and 20 per

25     cent Serbs on the assumption that the Serbs did not leave the province.

Page 27230

 1             Now, I would like to raise the following question for the Trial

 2     Chamber:  In what would way this new ratio of forces substantively alter

 3     the ratio of forces which would secure further Serbian control over the

 4     province?  We have not received an explanation, let alone the fact that

 5     there has been no evidence to show that at all.  The Prosecution has not

 6     provided a shred of evidence to bear that thesis out for us really to be

 7     able to see whether or not it was in fact a goal and whether an

 8     undertaking existed in the first place.

 9             We say that these allegations made by the Prosecutor as to the

10     object of a criminal enterprise or joint criminal enterprise already on

11     first blush are out of the question.  There is no sense to them.  On the

12     other hand, there are many witnesses and other written evidence presented

13     before this Court which quite obviously create and paint a completely

14     different picture about the reasons that the Kosovo Albanians moved out

15     of the territory and not only them but others too.

16             The Defence dealt with this in greater detail in its final brief

17     in paragraphs 483 up to paragraph 505, and I'd just like to mention some

18     of that evidence now and to point the Trial Chamber to them.  For

19     example, a Prosecution witness, Sandra Mitchell, on page 588 of the

20     transcript testified and said that up until the 20th of March, 1999, she

21     was the acting person in the OSCE mission and that the plan for

22     supervising the refugees was made only on the 22nd of March, because the

23     problem of refugees was one that they did not have up until then.  This

24     plan quite obviously if you look at the time period coincides with the

25     intimations of NATO bombing and the departure of the OSCE mission from

Page 27231

 1     Kosovo.  This witness also adds and says that the Serb civilians also

 2     left the province at that same time.

 3             Adnan Merovci, another Prosecution witness, testified in this

 4     court and said that on the 21st of March he saw refugees moving towards

 5     the border, towards Macedonia and that is to be found in Exhibit P2588,

 6     paragraph 43.

 7             Another Prosecution witness, otherwise the chief of staff of the

 8     AKM, Bislim Zyrapi, in his testimony on transcript page 5991 to 5992 and

 9     5997 to 5998 states that the civilian Albanian population was moving

10     together with the KLA and confirms that he issued an order personally

11     ordering the movement and shifting of the Albanian population from the

12     village of Bellanice on the 1st of April, 1999, that is Prosecution

13     Exhibit number P2457.

14             Another Prosecution witness, General Drewienkiewicz, also

15     testified and said that P680 evidence was correct to the effect that in

16     the region of Djeneral Jankovic the KLA ordered the civilian population

17     to move out, which they did, and this can be found on 7932 page of the

18     transcript.

19             There were many Defence witnesses who testified to these

20     circumstances as well but through -- but because our time is limited I'm

21     just going to mention Milutin Filipovic, for example, and a number of

22     them.  He testified that on the territory of Pristina and the surrounding

23     parts there was a distribution of handouts, pamphlets in Albanian in

24     which the KLA called upon the civilian Albanian population to leave

25     Kosovo and Metohija and go in the direction of Albania and Macedonia.

Page 27232

 1     The transcript page is 11984.

 2             All this evidence and all these exhibits lead us to conclude that

 3     part of the population left the province because of intimations of a

 4     coming NATO bombing or because of pressure and instructions from the KLA

 5     whose aim it was to show that there was a humanitarian catastrophe and

 6     the responsibility of the Serbs for that catastrophe, and the results of

 7     that kind of conduct are quite evident and obvious today.

 8             If we bear in mind the standards adopted at this Tribunal to the

 9     effect that this kind of thesis put out by the Prosecution can be

10     considered to have been proved if the Prosecution's conclusion is the

11     sole reasonable conclusion that one can draw, we consider that it is

12     quite obvious that the Prosecutor has failed to prove his thesis about

13     the existence of a plan and the existence of a plan to prove it beyond

14     reasonable doubt.

15             In addition to that, in addition to the fact that these exhibits

16     and the evidence shown about what the true reason for the moving out of

17     the Albanian population was, if we look at it, at first glance what makes

18     more sense is this, more sense than the Prosecution thesis and the joint

19     criminal enterprise thesis is -- and that the goal was to change the

20     ethnic balance allegedly to enable Serb control of the province.

21             Here and now I don't wish to deny the fact that there were

22     individuals who to certain -- did say to certain Albanian civilians, go

23     to Albania or go to Clinton or something similar.  My learned friend

24     Mr. Ackerman talked to you about this, because there was a war on and

25     much worse things happened, killings and rapes for example.  And it is

Page 27233

 1     quite true and to be expected that some individual might have said things

 2     like that to Albanians, but they are isolated verbal incidents which

 3     in -- can in no way be proof and evidence of the existence of a plan as

 4     presented by the Prosecutor.

 5             The Prosecutor then goes on to suggest the following:  That from

 6     the orders of the General Staff of the army of Yugoslavia, Grom 3 of the

 7     3rd Army and the Pristina Corps, Grom 3, that from them other orders

 8     emanated which under the mask of the struggle to break up the Serb --

 9     Siptar terrorists represent a coordinated action on the part of the army

10     of Yugoslavia and the MUP directed against the civilian population and

11     that the areas in which the fighting took place and the battles took

12     place in fact coincide with the areas in which the alleged crimes

13     happened, the crimes cited in the indictment.  And on the basis of that

14     he draws the conclusion that this is clear proof of the existence of a

15     plan.

16             The Defence claims that this thesis put forward by the

17     Prosecution has remained at the level of speculation and surmise and that

18     there are no indicia, no indications or any proof which would show beyond

19     reasonable doubt or which would confirm this position taken by the

20     Prosecution beyond reasonable doubt.

21             Before I continue -- before I continue my presentation on these

22     orders and directives, I'd like to show the Trial Chamber of the

23     contradictions to be found in the closing arguments presented by the

24     Prosecution with the intent of showing these decisions as being a screen

25     behind which crimes were committed.  My colleague Mr. Hannis, on page 8

Page 27234

 1     of the transcript of the 19th of August, speaking about these orders and

 2     the orders which were titled Joint Command for Kosovo and Metohija,

 3     stated that ever since World War II, for example, this kind of plan is

 4     never written down -- or, rather, never documented, nor is it ever

 5     declared orally by any side.  However, a little bit before that, on page

 6     3 of that same transcript, my learned friend Hannis asserts that

 7     Mr. Milosevic, in October 1998, to Generals Naumann and Clark, openly

 8     stated that the final solution for the Kosovo problem will be found in

 9     the spring by doing the same thing that happened in Drenica in 1946, that

10     is to say will rally them all together and execute them.

11             Now, we're not quite clear, but that seems to be the Prosecution

12     thesis, does it.

13             Now, why, if Mr. Milosevic quite openly told high-ranking NATO

14     officials what the plan was for the spring, why then would these orders

15     be screened for conducting something like that?  There is quite obviously

16     a contradiction here in what the Prosecution has presented.

17             The Defence furthermore claims that the stipulated orders of the

18     General Staff of the army of Yugoslavia, Grom 3 of the 3rd Army, Grom 3

19     and the Pristina Corps, for the defence of the country and for fighting

20     the KLA were completely legitimate and legal and that these orders and

21     the orders that emanated from them in no way were used to mask plans that

22     were targeting the Albanian population.  There is a lot of evidence to

23     show clearly and unambiguously that this -- it was justified and

24     necessary to elaborate directives and orders of this kind.  And the

25     Defence spoke about this in greater detail in paragraphs 605 to 628 of

Page 27235

 1     its final brief.

 2             Every serious army, every serious organisation, even without the

 3     kind of threats that we're going to describe in our further presentation

 4     has a defence plan, necessarily has a defence plan, necessarily adopts a

 5     defence plan.  This building has a plan for evacuation should a fire

 6     break out, for instance.  So why, as Mr. Hannis would have it, would that

 7     be something that was necessarily adopted to mask and hide a plan that

 8     was directed against the civilian population?

 9             Let me remind you that it was precisely a Prosecution witness,

10     Dusan Loncar, who said that the KLA used the presence of the KVM to

11     reorganise, consolidate, arm and prepare for the struggle against the

12     Serb forces.  And the witness added that the KLA very often used

13     civilians as a human shield, principally women and children on page 7617

14     of the transcript and goes on to testify of that while he was in contact

15     with General Drewienkiewicz, what was often mentioned was the forthcoming

16     spring offensive by the KLA and this is to be found on page 7618 of the

17     transcript.

18             Another Prosecution witness Shaun Byrnes testified before this

19     Trial Chamber that all the international observers in Kosovo were

20     generally aware of the fact that the Albanians armed themselves before,

21     during, and after the October agreement.  Page 12217 to 12218 of the

22     transcript.

23             Another Prosecution witness, Ciaglinski, confirms that the KLA,

24     during negotiations held in Paris intensified its attacks.  Page 6902 of

25     the transcript.

Page 27236

 1             Another Prosecution exhibit, P638, for instance, which represents

 2     a report of the OSCE mission under the marking DZ 5 of the 8th of

 3     January, 1999, shows that the terrorist KLA attacks and the violation of

 4     the truth undermined efforts for a political solution to be found to the

 5     conflict.

 6             Another OSCE mission DZ 16 this time, Exhibit P649, which

 7     represents information from a meeting of the liaison officers with

 8     representatives of the KLA, resulted in the following conclusion:  That

 9     regardless of what was to happen in the next round of the peace

10     negotiations, there was the clear readiness on the part of the KLA to

11     continue their fighting.

12             There are also numerous reports coming from the security organ of

13     the Pristina Corps and of the 3rd Army pointing to the same facts.

14             We ask the Trial Chamber to inspect these documents that's

15     3D1050, 3D1052, and 3D1053.

16             5D1241, another exhibit, is a BBC video clip showing military

17     manoeuvres by the KLA on Mount Drenica in the village of Klecka on the

18     29th of January, 1999.  And here you can also see fighters in civilian

19     clothes and women carrying weapons.  General Lazarevic testified about

20     this on transcript page 17771.

21             In addition to all this, the General Staff of the army of

22     Yugoslavia had at its disposal intelligence indicating that in Macedonia

23     in early 1999 about 10 to 12.000 NATO soldiers were deployed with about a

24     hundred tanks and 36 helicopters, and it was estimated that NATO was

25     planning an air and ground operation.  NATO air-strikes were announced in

Page 27237

 1     February 1999, and Mr. O'Sullivan spoke about this in his closing

 2     arguments.

 3             From the territory of the Republic of Macedonia, there was an

 4     increased influx of KLA and weapons with a view to creating a corridor.

 5     3D1048 and 5D253 are exhibits illustrating this and pointing to this.

 6             In this kind of military and political situation it was

 7     completely natural, logical, and legitimate for the army to adopt plans,

 8     directives, and orders for the defence of the territory and of the state

 9     sovereignty both against the NATO forces whose possible aggression was

10     being prepared and which actually took place as we have seen, and from

11     the KLA which was acting from within with great force.

12             When one analyses the Pristina Corps command order, P2808 shown

13     to you by my learned friend Mr. Hannis, and it's dated the 16th of

14     February, 1999, for the destruction of the Siptar terrorists in the Malo

15     Kosovo area, which is also known as Lab or Podujevo, Drenica and

16     Malisevo, and 455-1 is the log register number, one can see that in

17     addition to the purely military tasks assigned to the corps units the

18     corps commander General Lazarevic prohibited the entry of members of the

19     court into built-up areas and he warned the members of the corps that

20     they must not violate international -- the international laws of war.  If

21     you look at P2808, you will see that all this can be found there.

22             I ask the Trial Chamber to look at another piece of evidence

23     which supports all of this and which perhaps shows in the most impressive

24     way the fact that all these orders were justified, but the exhibit is

25     under seal so I ask that we move into private session for a moment.

Page 27238

 1             JUDGE BONOMY:  Very well, Mr. Bakrac.  We can move into private

 2     session.

 3                           [Private session]

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 27239

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6                           [Open session]

 7             THE REGISTRAR:  We're in open session, Your Honours.

 8             JUDGE BONOMY:  Thank you.

 9             MR. BAKRAC: [Interpretation] So the document we refer to shows

10     clearly and unambiguously that the orders and commands referred to were

11     adopted in -- that it was justified to adopt them.

12             Another witness from the Pristina Corps testified that in

13     addition to the large concentration of KLA on the territory of Malo

14     Kosovo Drenica and Malisevo, this area was suitable for a landing by the

15     NATO multinational force and their linking up with KLA.  That's 21817.

16     That's the transcript page.

17             This general order, 2808, is one that individual orders were

18     based on bearing the heading Joint Command for KiM and General Lazarevic

19     testified that these were orders of the Pristina Corps command and that

20     these were actions in support of the MUP.  My learned friend Mr. Hannis

21     also mentioned these orders, saying that they stemmed from this order,

22     P2808, and that they corresponded to the territory from the indictment

23     referring to the crime base.

24             We will show that these orders, of which we have 16 as exhibits

25     on the record, only 4 of them correspond to the crime base from the

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 1     indictment.  That's P2015, P1968 and P1969, and P1975.

 2             If you look at the territory from the crime base as described in

 3     the indictment and compare this with the remaining 15 orders -- rather,

 4     excuse me, the remaining 12 orders, you will see that these orders refer

 5     to actions in areas where no crimes were committed.

 6             If these were orders which were intended to mask a plan to commit

 7     crimes against ethnic Albanians, the question arises why only four of

 8     these orders relate to the crime base?  Why not all of them?  And the

 9     answer is clear.  It's clear because the OTP has no evidence to support

10     its case and is engaged in speculation.

11             A simple analysis of the contents of all these orders shows that

12     there was a legal and legitimate sequence both as regards the content of

13     the orders and the chain of command.  In addition to this, the content of

14     these orders leads quite clearly and unambiguously to the conclusion that

15     they are not a screen or a cover to commit crimes against Albanian

16     civilians under the pretext of fighting the KLA as the OTP contends.

17             We wish to remind Your Honours that General Vasiljevic, a

18     Prosecution witness, was shown an order issued by the Pristina Corps

19     commander, P2014, and that this witness, Vasiljevic, evaluated this order

20     as being a typical document composed in a precise and professional manner

21     and that it's a high quality document.  That's transcript pages 8732 and

22     8734.

23             My colleague Mr. Ackerman has already mentioned, and I have noted

24     down that here I would agree with my colleague Mr. Hannis who asked you

25     to apply the principle, and I'll tell you the following:  If something is

Page 27241

 1     called an order and if its context shows that it is a high quality order,

 2     then probably it is an order and not something quite different.

 3             Your Honours, I now wish to move on to another topic, and I see

 4     we have only two minutes left, so I don't know if this might be a

 5     convenient moment, and -- I do apologise, Your Honours.  My colleague

 6     Mr. Cepic has received an e-mail.  Mr. Lazarevic is still in the prison

 7     hospital.

 8             JUDGE BONOMY:  Well, thank you.  We will adjourn at this stage

 9     until Monday.  We're due to sit on Monday morning.  We will have to

10     interrupt the sitting at around 11.45 or thereabouts because there is a

11     Plenary meeting of Judges that the Judges here are required to attend.

12             If by then we know that there is other time available on Monday,

13     we may take advantage of that, and similarly on Tuesday.  We may try

14     to -- well, we are trying to secure other time, but it may prove

15     impossible because of the commitments of other cases, but please don't

16     take on any commitments on the assumption that we will not be sitting a

17     little longer on Monday and possibly for part of Monday morning --

18     Tuesday morning, but we will alert you as soon as we can of any change to

19     the sitting arrangements.  For the moment, we shall resume on Monday at

20     9.00 and sit until 11.45.

21                           --- Whereupon the hearing adjourned at 3.29 p.m.,

22                           to be reconvened on Monday, the 25th day

23                           of August, 2008, at 9.00 a.m.