Page 386
1 Wednesday, 13 March 2013
2 [Appeals Hearing]
3 [Open session]
4 [The appellants entered court]
5 --- Upon commencing at 9.29 a.m.
6 JUDGE LIU: Good morning, everyone.
7 Registrar, would you please call the case, please.
8 THE REGISTRAR: Good morning, Your Honours. This is case number
9 IT-05-87-A, the Prosecutor versus Nikola Sainovic, Nebojsa Pavkovic,
10 Vladimir Lazarevic, and Sreten Lukic. Thank you.
11 JUDGE LIU: Thank you very much.
12 As indicated, if any party is unable to follow the proceedings at
13 any stage, I ask them to bring this to my attention immediately.
14 May we now have the appearances of the parties. First the
15 Prosecution.
16 MR. KREMER: Good morning, Mr. President, Your Honours.
17 Peter Kremer appearing on behalf of the Prosecution. With me this
18 morning, Mathias Marcussen, Ingrid Elliott, and Francois Boudreault; and
19 again, our case manager, Colin Nawrot. Thank you.
20 JUDGE LIU: Thank you.
21 And the Defence counsel, please.
22 MR. FILA: [Interpretation] Good morning, Mr. President and
23 Your Honours. My name is Toma Fila and together with Mr. Petrovic I
24 represent the Defence for Nikola Sainovic. Thank you.
25 JUDGE LIU: Thank you.
Page 387
1 MR. ACKERMAN: Good morning, Your Honours. I'm John Ackerman
2 with Aleksander Aleksic for General Pavkovic.
3 JUDGE LIU: Thank you.
4 MR. BAKRAC: [Interpretation] Good morning, Your Honours,
5 Mr. President, honourable Judges. For the Defence of General Lazarevic,
6 Mihajlo Bakrac, Djuro Cepic; our legal advisor, Milos Cvijic; and our
7 intern, Milan Petrovic, are present in the courtroom today.
8 JUDGE LIU: Thank you.
9 MR. LUKIC: Good morning, Your Honours. Branko Lukic and
10 Dan Ivetic on behalf of Mr. Sreten Lukic.
11 JUDGE LIU: Thank you very much.
12 Before we start, there are some adjustments of today's and
13 tomorrow's sitting schedule. The first sitting of today will last one
14 hour and 45 minutes instead of two hours. After the break, the counsel
15 for defendant will continue for 15 minutes to finish his presentation.
16 This is also true for tomorrow's first sitting.
17 Mr. Bakrac, now we would like to hear your presentation.
18 MR. BAKRAC: [Interpretation] Thank you, Your Honour. With your
19 leave, we will give our oral submissions with the help of a PowerPoint
20 presentation which is not new evidence that we are adducing; rather, we
21 would like Their Honours to have certain relevant parts of our
22 presentation on the screens for ease of reference. In our submissions,
23 Your Honours, we will try to provide answers to your questions from your
24 order of the 20th of February. Likewise, we will be addressing certain
25 issues that we believe are important for our client and provide answers
Page 388
1 to questions that you would not otherwise find in the judgement. With
2 your leave, Your Honours, I would now like to give the floor to my
3 learned friend, Mr. Cepic, who will be addressing the first ground of
4 appeal and answering your first question. Thereafter, Your Honours, with
5 your leave, I would like to address grounds two, three, and four of our
6 appeal and the second and third questions put by Their Honours in their
7 order of the 20th of February, 2013.
8 JUDGE LIU: Thank you. You may proceed.
9 MR. CEPIC: [Interpretation] Thank you, Your Honour. Good morning
10 to everyone in the courtroom. My name is Djuro Cepic, and I am counsel
11 for Lazarevic. And I will be addressing ground one of our appeal brief.
12 Can we have slide one in front of us on the screen, and I would like the
13 usher's assistance to distribute a copy of the document to Their Honours.
14 JUDGE LIU: This one?
15 MR. CEPIC: Yes, that's correct. Thank you very much,
16 Your Honour.
17 [Interpretation] When addressing the crime base, I would like to
18 point out that in item 1 of our appeals brief we have explained in detail
19 that members of the Army of Yugoslavia did conduct themselves in keeping
20 with the law and constitution and those who broke the law were prosecuted
21 by the competent bodies. An important issue arises, which is the alleged
22 conveyance of oral orders to commit crimes. My learned friend Mr. Kremer
23 raised this very issue the day before yesterday and this can be found at
24 Volume III, paragraph 43, of the trial judgement.
25 In their appeals brief, the Defence indicated what the
Page 389
1 contradictory elements were in the testimony of this witness and directed
2 the attention to the fact that it absolutely lacks credibility and is
3 inadmissible. And at this stage we would only like to show the most
4 glaring example of it to Their Honours. We have a slide in front of us
5 which is the contents of the K90 testimony, where he clearly says that he
6 had never been ordered to commit any crimes against villagers.
7 Can we have slide two, please. As you can see, this is
8 corroborated by other testimonies and Judge Bonomy, the Presiding Judge
9 himself, made a very clear conclusion about this witness which we can see
10 at the bottom of this slide; and the reference is transcript page 9489.
11 Hence, these portions of the transcript clearly show that Witness K90 was
12 not a credible or reliable witness and that he changed his written
13 statement significantly in the course of his testimony. Therefore, the
14 Trial Chamber had to reject the testimony of this witness. On the other
15 hand, had it assessed his testimony at all, it would have had to reach a
16 completely different finding from the one it did in the trial judgement;
17 that is to say that there was no such general pattern.
18 Another illogical point of his testimony is that he himself was a
19 soldier and that he could not possibly know in which way the orders were
20 conveyed down the chain. That the orders were conveyed down the chain of
21 command in keeping with the law is clearly shown by the fact that the
22 Prosecution investigator, Philip Coo, upon his arrival in Belgrade, found
23 the entire documentation of the Army of Yugoslavia from the relevant
24 period in the archives. The reference is 12075 of the transcript. And
25 on the basis of all these documents and combat reports he, and later on
Page 390
1 the Prosecution and the Trial Chamber after the evidence was adduced,
2 could make a complete and thorough analysis of the relevant events rather
3 than have the Trial Chamber's findings be based on indirect evidence on
4 the principle of pick and choose; whereas, on the other hand, there was
5 ample evidence adduced which lead to reasonable findings in the favour of
6 the Defence which was not taken into consideration in adjudication.
7 Furthermore, I'd like to point the fact -- point out the fact
8 that there were over 30 chains of command under the Pristina Corps. This
9 fact clearly shows that in the event that there had been the procedure of
10 verbally handing down orders, this would have completely disrupted these
11 chains of command. Can I have the next slide, please.
12 I would now like to address the crime base and some findings of
13 the Trial Chamber on this score. The Trial Chamber erred in finding that
14 none of the reports of the subordinate units which speak about the large
15 numbers of displaced Kosovo Albanians and the engagement of the
16 Army of Yugoslavia in connection with their movement and provisions for
17 them do not relate to the locations where, according to the Trial Chamber
18 finding, the forcible displacement by the VJ was found. This is
19 Volume III, paragraph 912.
20 Such a finding has no basis and is contradictory to the findings
21 of the Trial Chamber itself in that same judgement and in -- and is also
22 contrary to ample adduced evidence. As you can see on this slide, you
23 have on the left-hand side the finding of the Trial Chamber and on the
24 right-hand side the finding reached by the Trial Chamber in Volume III,
25 paragraph 905, which deals with the humane treatment by VJ members in the
Page 391
1 areas between the villages of Turicevac, Izbica, Vocnjak, and Cirez in
2 late March 1999.
3 [In English] At the end of March of 1999. Yes, thank you.
4 [Interpretation] It is a showing of how the VJ forces stopped
5 their actions precisely for the sake of protecting civilians and the
6 instance where a senior officer from the Pristina Corps itself had
7 arrived to assist this activity.
8 This was corroborated by testimonies and the combat report of the
9 units of the VJ which is P2046. Can I have the next slide, please.
10 We will continue addressing the municipality of Srbica. In
11 addition to the Trial Chamber finding, I would like to point to other
12 evidence relating to this area and the relevant time which are clearly in
13 favour of the Defence. We have explained in our appeal brief that the
14 forces of the Army of Yugoslavia did not enter the village of Cirez in
15 the period of time when allegedly crimes were found to have been
16 committed there. But, as you can see in the slide, after the subsequent
17 arrival of the army in the area we can clearly see that -- what sort of
18 attitude the members of the VJ had toward the civilians. These are all
19 testimonies of Prosecution witnesses, assistance in food, medication, and
20 other forms of assistance that could have been provided by soldiers.
21 Can I have the next slide, please. The orders and reports of the
22 Yugoslav Army in the area of Srbica clearly show that the soldiers under
23 the command of General Lazarevic treated civilians humanely. As you can
24 see, there is even a relevant portion of this -- the Trial Chamber -- the
25 exhibits -- 5D1033, this is the 37th Brigade report about the protection
Page 392
1 of civilians in the area; next Exhibit 5D1083, the report of the
2 37th Brigade of the army, which sought measures to be undertaken for the
3 protection of civilians, the securing of a supply of food and other
4 necessities; 5D1037, a report about the situation in Glogovac, where the
5 Red Cross is called upon to provide assistance; 5D105D [as interpreted],
6 where the army distributed its own food reserves to help the civilians.
7 That's to say all the civilians present in the area regardless of their
8 faith or ethnicity, and I'd like to say that under all the censuses
9 Glogovac was 99 per cent Albanian.
10 [In English] Sorry for intervention. Page 7, line 1, it could
11 be -- it has to be 5D1059, exhibit number. Thank you very much.
12 [Interpretation] Can I have the next slide. We have two maps
13 before us. One was admitted as evidence. A credible Prosecution
14 witness, Colonel Bislim Zyrapi, the chief of the KLA staff in the
15 relevant period. And on the other side we have a map IC157; it is a
16 Defence witness's map, Colonel Dikovic's map, who was present in the area
17 in the relevant period. Colonel Zyrapi's map is IC105. These maps are
18 consistent in the essential parts and the testimony by
19 Witness Bislim Zyrapi clearly shows that there was fighting between the
20 VJ and law enforcement forces on the one hand and the KLA on the other.
21 In his credible testimony Colonel Zyrapi explained that the area was
22 under the control of his forces. In addition to that, he said the
23 following, and I will quote, this is transcript page 6003, lines 5 to 6:
24 [In English] "It was normal for us to order the movement of the
25 population but also of the KLA ..."
Page 393
1 [Interpretation] If the Trial Chamber found in the example of
2 Belanica that there was not a war crime committed, precisely thanks to
3 such a position held by Colonel Zyrapi and if we know that Colonel Zyrapi
4 testified that this was a principle which applied to the entire territory
5 of Kosovo, then this direct piece of evidence will lead us to the
6 conclusion of what the general pattern was. I would particularly like to
7 thank the Appeals Chamber for its order of the 20th of February, in which
8 it pointed out the question of the location of the alleged crime, the
9 village of Tusilje, the 29th of March, 1999.
10 As a matter of fact, in the indictment that village was not
11 pointed out, and therefore there is -- there are no grounds for its
12 presence in the judgement because that would mean going beyond the scope
13 of the indictment. Now I'd like to ask my colleague Mr. Cvijic to play a
14 video-clip that was played during the trial as well. It is a night of
15 bombing in Pristina, one of the many nights of bombing, that is the
16 7th of April, 1999.
17 [Video-clip played]
18 MR. CEPIC: [Interpretation] You see it. Buildings aflame. You
19 see residential buildings that were hit. The question is whether any of
20 the people living in this building would stay on after this kind of
21 bombing. And I would like to note that during the bombing
22 199 projectiles hit the town of Pristina only, hitting civilian targets
23 at that.
24 Now that we're speaking of Pristina, I wish to repeat what my
25 learned colleague Mr. Ackerman pointed out yesterday. In Pristina there
Page 394
1 were no combat units of the VJ. All the combat units were defending the
2 country outside of town. This was attested to by the war commanders,
3 also the Defence Witness Filipovic and also there are many combat reports
4 to that effect of the Army of Yugoslavia. As I've already pointed out
5 earlier, the archives were complete. Each and every combat report could
6 have been found. And any movement by units could have been
7 reconstructed. What I wish to point out to the Appeals Chamber is that
8 in Pristina in the outskirts humanitarian aid was provided to civilians
9 by the VJ and that is attested to by many documents.
10 PD499 [as interpreted], as you can see, the 354th Brigade of the army is
11 taking care of 15.000 ethnic Albanians who were returning, and they were
12 put up in Ladovac and Sajkovac. 5D615, the 211th Brigade is providing
13 humanitarian aid to the Albanian population and everything else they may
14 have needed. Even Colonel Zlatomir Pesic, a Prosecution witness,
15 commander of the military district in Pristina, pointed out that he tried
16 to keep a group of civilians at their homes. Also we have 5D592 where we
17 see that members of the 211th Brigade of the VJ provided medical
18 assistance to the civilian population.
19 Could I please have the next slide now.
20 I shall briefly deal with the municipality of Prizren as well.
21 We see here that there are several orders and several combat reports. We
22 see what the attitude was. My colleague Mr. Ackerman pointed out
23 yesterday that some refugee columns were hit by NATO bombs. As you can
24 see in report 5D1158, NATO projectiles hit a refugee column in the
25 territory of the municipality of Prizren and further on the municipality
Page 395
1 of Djakovica. There was a vast number of victims. People were killed,
2 wounded, and here we see that the members of the Army of Yugoslavia
3 offered assistance to civilian victims of NATO bombing. And Defence
4 Witness Franjo Gloncak pointed that out. Then also this happened near
5 the village of Korisa. The first example I provided is in the village of
6 Pirane and in the crime base it says that it was in Pirane that there was
7 forcible deportation of the civilians. The statement by Witness Gloncak
8 is 5D1395.
9 In addition to that, the same witness describes the situation
10 when a civilian column was hit by 15 NATO projectiles. This was a column
11 of Albanian refugees that were returning to their homes near the village
12 of Korisa, the municipality of Prizren. As you can see, hundreds of
13 victims. Witness Gloncak gave his own blood to help the civilians who
14 were harmed. All of this is corroborated by 5D194 [as interpreted] of
15 the 549th Brigade about that attack. Could we please have the next slide
16 now.
17 This is testimony provided by Prosecution witnesses, K79. The
18 army returned civilians to their homes wherever they could. 9721 is the
19 transcript page. General Maisonneuve also praised the conduct of the VJ
20 in the area and also there is ample evidence that we provided in our
21 brief that testifies to this humane treatment. Could we please have the
22 next slide now.
23 The situation was the same in the municipality of Djakovica,
24 5D1158, the wounded in the column that we mentioned in the municipality
25 of Djakovica, medical team -- a military medical team is being sent to
Page 396
1 help them, although that is not the task of the army. Of course the army
2 is defending the country respecting the law, but it is other structures
3 that are taking care of civilians. 5D1147 also speaks about taking care
4 of civilians. Could I please have the next slide now.
5 Document PD1147 and PD1144 and PD1155 [as interpreted]. Now we
6 are moving on to the municipality of Orahovac. There is also a reference
7 here to the humane treatment provided by the Army of Yugoslavia. There
8 is a reference to Witness K79 who also says that the army acted in
9 accordance with the law. Could we please have the next page -- the next
10 slide, rather. And we see numerous documents like 5D963, speaking of
11 humanitarian aid provided to civilians. 5D964, 5D1071, where it says
12 that civilians in that area were fully protected.
13 There are also many other documents there, like 5D1072, 973, 974,
14 and so on. Thank you.
15 As I've already explained using the example of Srbica, the
16 situation was the same in the municipalities of Djakovica, Prizren, and
17 Orahovac. On the left-hand side we have Colonel Delic's map, IC1515, and
18 on the right-hand side we have Colonel Zyrapi's map. He was the Chief of
19 Staff of the KLA, P2447. The movements of units coincide to a large
20 extent and Colonel Zyrapi explains the fighting that took place there as
21 he explained in the case of Srbica as well. As we said in our brief,
22 near the village of Pirane, near the village of Celine there was fighting
23 between the KLA forces on the one hand and the forces of Serbia and
24 Yugoslavia on the other. Transcript reference 5991 and 5992.
25 Next, please, that is map P2447. This is Colonel Zyrapi's map
Page 397
1 and he shows here the area that was under their control on the
2 25th of March and the alleged crime base is marked in these locations,
3 but as I've already said Colonel Zyrapi explained that they ordered
4 movement by the civilian population and he also said that there was
5 fighting between the two warring parties. Also, I wish to add to that
6 that this was under constant NATO bombing and hundreds and hundreds of
7 projectiles fell in the area of Kosovo and Metohija.
8 All of this clearly indicates that the specific direction of all
9 these actions taken by the army pertain to the defence of the country in
10 an exceptionally difficult situation due to the NATO bombing and
11 simultaneous heavy fighting with the KLA.
12 Your Honours, with your leave, now I would like to deal with the
13 first question from your order dated the 20th of February, this year, and
14 it has to do with disciplinary and other measures that were taken in
15 relation to the members of the Army of Yugoslavia. Could we please have
16 the next slide now --
17 JUDGE LIU: Mr. Cepic, can I give you a piece of advice?
18 MR. CEPIC: Yes, please.
19 JUDGE LIU: I believe that you have to point out for us where the
20 Trial Chamber is wrong in the judgement as error of law and error of
21 facts instead of repeating the evidence you showed during the trial
22 stage.
23 MR. CEPIC: Thank you very much, Your Honour. We pointed all
24 these paragraphs from the judgement and all relevant exhibits in our
25 appeal brief, and I was thinking that this presentation should be just to
Page 398
1 present that argument in some additional light. So that is the point of
2 that presentation. We do have everything filed in our appeal brief.
3 JUDGE LIU: I see. But bear my remarks in mind in your further
4 submissions. You may proceed.
5 MR. CEPIC: Thank you very much, Your Honour.
6 [Interpretation] In this way I wish to respond to your question
7 specifically from your order of the 20th of February, and it has to do
8 with the following: Whether the Trial Chamber erred when they found that
9 General Lazarevic had not taken sufficient measures that particularly
10 pertained to his contribution to the crime of deportation and other --
11 his failure to take adequate measures to ensure the proper investigation
12 of serious crimes committed by the VJ. This is Volume III,
13 paragraph 900. I hope that I'm assisting the Appeals Chamber in this
14 way. As a matter of fact, such a ruling by the Chamber simply does not
15 hold water, to put it mildly. General Lazarevic did his very best at the
16 time that is relevant to the indictment. When we're speaking of
17 disciplinary responsibility we have some provisions of the Law on
18 The Army of Yugoslavia - that is P984 and Article 159 - clearly defines
19 what disciplinary measures are as much. In this way I wish to refer to
20 the appeals judgement in Gotovina and Markac, paragraph 133. The Chamber
21 concluded that the accused had taken disciplinary measures against a
22 large number of soldiers and that was in their favour. What I am going
23 to show to you now is that General Lazarevic did that exactly and even
24 more than that within the scope of his possibilities, but first we have
25 to deal with the key issue. For all of us who deal in criminal law, this
Page 399
1 is the primary issue; that is, disciplinary responsibility as
2 responsibility for set work obligations and, therefore, that is a much
3 lower form of responsibility than criminal liability.
4 In disciplinary proceedings someone cannot be held accountable
5 for crimes of murder, rape, deportation, or any other crime or war crime.
6 Aleksandar Vasiljevic, Prosecution witness, explained that in a specific
7 example; 8968 is the transcript reference. Next slide, please.
8 As you can see, there are clear-cut disciplinary sanctions that
9 are spelled out in Articles 163 and 164 and the most serious sanction is
10 20 days in military detention. We will agree that we are not going to
11 punish in that way someone who committed a crime. In addition to that
12 there is Article 181 of the Army of Yugoslavia that says that the
13 military disciplinary court, disciplinary proceedings before military
14 courts, have to be taken by army commanders, that is the lowest level.
15 Also, Article 204, paragraph 2 of the Army of Yugoslavia, says
16 that in a case of war, in a war situation, as a rule disciplinary
17 measures or disciplinary sentences the implementation of which is not
18 feasible or possible shall not be handed down during the state of war.
19 However, in spite of such limitations, General Lazarevic took all
20 measures that were within the scope of his possibilities with a view to
21 punishing soldiers in accordance with the law - 5D260, March 1999,
22 12th of March, 1999 - and he is asking for strict disciplinary measures
23 to be taken. Then we also see from PD1144 [as interpreted] that again
24 General Lazarevic asked for that and on the 29th of March, 1999, and also
25 there were criminal sanctions involved too. Then also document P2029 of
Page 400
1 the 1st of April, 1999, and then 4D237 of the 7th of May, 1999.
2 There are also numerous documents of subordinate units stating
3 that these measures were being taken. I am going to refer to some of
4 them: 5D1293, 5D1020, 5D554, 5D365, 5D388, 5D387, 5D315, 5D550, 5D798,
5 5D1142, 5D1151, 5D1154. Could we look at the next slide, please.
6 What is the most important thing is, as I said, disciplinary
7 violations are taken from minor violations. If somebody is late for
8 work, if they did not turn up to the unit in time, if they mildly
9 infringe on military discipline. But what is most significant in this
10 case is the criminal prosecution of perpetrators of criminal acts. My
11 colleague, Mr. Bakrac, will speak more about that. All I would like to
12 point out is that military officers, superior officers, and the corps
13 commander himself carried out their duties by submitting criminal reports
14 because the courts and the prosecutor's offices are independent in their
15 work in the same way that this Court and this Prosecutor's office are
16 independent in their work. In the same way the courts in the area of
17 Yugoslavia and the territory of Serbia by constitution and by law were
18 defined. Their functions were defined. In front of us we see
19 Article 143 [as interpreted] of the constitution and we see also the
20 article on the work of military courts which defines their independence.
21 I would also like to say that members of the Pristina Corps in
22 the time relevant for this judgement submitted 2.382 criminal reports, of
23 which one-fifth referred to violations of international humanitarian law.
24 This was in 492 criminal reports filed. I tried to find in the
25 jurisprudence of this and other criminal courts that deal with war crimes
Page 401
1 similar examples of this volume of prosecution and the extent to which
2 humane measures were taken in respect of civilians and I was not
3 successful in that. I didn't manage to find any, which clearly speaks to
4 the fact that General Lazarevic subordinated the principle of military
5 efficiency to the principle of humaneness. And that he adhered to the
6 constitution and the law in all his actions that he was bound by, by
7 rules and regulations. I would like to thank you for your attention and
8 my colleague, Mr. Bakrac, will continue with our presentation.
9 JUDGE LIU: Thank you very much.
10 MR. CEPIC: I'm sorry for --
11 JUDGE LIU: Yes.
12 MR. CEPIC: I have to intervene in the transcript. Page 15,
13 line 14, it has to be "Article 138" instead of "143."
14 JUDGE LIU: Thank you.
15 MR. CEPIC: Thank you very much.
16 JUDGE LIU: Thank you.
17 Mr. Bakrac.
18 MR. BAKRAC: [Interpretation] Thank you, Your Honour. I will be
19 addressing the gist of our grounds of appeal, numbers two and three. In
20 relation to these grounds of appeal, the Defence will be specifically
21 addressing the questions put by Their Honours, numbers two and three,
22 from the 20 February 2013 order of this Appeals Chamber.
23 With all due respect, our Defence submits that the Trial Chamber
24 erred in finding that General Vladimir Lazarevic participated in aiding
25 and abetting the deportations and forcible transfers of the Albanian
Page 402
1 population and that his actus reus in these actions consisted of the
2 following: Under one, participation in the planning and the execution of
3 joint VJ and MUP operations; under two, issuance of Grom 3 and Grom 4
4 orders and Joint Command orders which sent the VJ into actions in those
5 locations where the forcible displacement of Albanians occurred; under
6 three, his presence in the field and inspection of units which boosted
7 the combat morale of soldiers; and lastly, under four, his failure to
8 take adequate measures to secure the proper investigation of the serious
9 crimes committed by the Army of Yugoslavia. These Trial Chamber's
10 findings can be found in the trial judgement, Volume III, paragraph 925.
11 The Defence reiterates that in our view and in view of the
12 totality of the evidence adduced in this case the Trial Chamber
13 completely erred in this finding. In order to reach the finding that
14 through these actions General Lazarevic aided and abetted the
15 deportations and forcible transfer of the Albanian population, it was
16 incumbent upon the Trial Chamber in keeping with what we believe is now
17 the prevailing jurisprudence of the ICTY to establish the so-called
18 specific direction of these actions as the decisive element of actus reus
19 for aiding and abetting. It was necessary to establish this specific
20 direction explicitly in our view in order to establish the necessary link
21 between the acts of aiding and the crimes committed by principal
22 perpetrators. In order to establish the existence of specific direction
23 in the actions by General Lazarevic, the Trial Chamber was obligated to
24 properly establish the broad context in which these actions were done.
25 And it was precisely at this crucial stage that the Trial Chamber erred.
Page 403
1 Because of the erroneous interpretation of the evidence adduced and
2 possible prejudice, instead of finding that General Lazarevic as an
3 honourable officer and professional acted in keeping with his
4 constitutional, legal, and moral obligation to defend his country from
5 the KLA and NATO campaign, the Trial Chamber instead found that
6 General Lazarevic, in fact, aided and abetted deportations and forcible
7 transfer of the Albanian population.
8 The extent to which the erroneous understanding of this general
9 context of events and the constitutionally and legally established laws
10 and obligations that Lazarevic had as the Pristina Corps commander
11 affected the erroneous reasoning of the Trial Chamber is best illustrated
12 by the evidence which was adduced at trial and which was -- which the
13 Trial Chamber gave a completely different meaning from the one that a
14 reasonable trier of fact would. The acts that the appellant did to
15 defend the country were interpreted by the Chamber as aiding and abetting
16 a crime. And these errors of fact have, in fact, occasioned a
17 miscarriage of justice.
18 We will now address each and every one of these elements of
19 actus reus of aiding and abetting and we'll find that they militate in
20 General Lazarevic's favour. We will now first deal with the planning and
21 execution of joint VJ and MUP actions. The Defence notes that in the
22 context of the events in Kosovo in the relevant period, the participation
23 in the planning and execution of joint VJ and MUP actions in Kosovo was
24 not just lawful but also logical and necessary. The Defence could not
25 find anywhere in the trial judgement a clear distinction between this
Page 404
1 legitimate, logical, and necessary actions on the part of the appellant
2 and those acts or omissions which would clearly and unequivocally show
3 that what was done was with the intent on the part of the appellant to
4 aid and abet deportations and forcible transfers. The appellant was a
5 corps commander in the relevant period of time and his main task was on
6 the basis of the orders of the superior command to plan actions for the
7 defence of the country from the KLA and the NATO campaign. It was,
8 therefore, incumbent on the Trial Chamber to show unequivocally and make
9 a clear distinction between what were the lawful and the regular
10 professional tasks of the appellant and those acts in the planning and
11 execution of joint acts which would show that they had been done in such
12 a way as to amount to a significant contribution to the commission of
13 these crimes and that the appellant was aware of it.
14 In all lines of work, including those of a general in command of
15 a corps, there exists a description of duties and one of these duties on
16 the part of a general is to plan operations, especially so in a state of
17 war. Is that punishable? Certainly not.
18 I would now invite you to look at a slide where we will only
19 summarise the views presented by Prosecution witnesses, those witnesses
20 who in view of their experience and position were well-placed to state
21 certain things about this. Among them were quite a few high-ranking
22 officials of international organisations, and in respect of these
23 elements that the Trial Chamber held amounted to the actus reus on the
24 part of the appellant, they stated that these actions were, in fact,
25 legal and legitimate. And what's more, that they were necessary where
Page 405
1 the country was defending itself from the KLA and the NATO campaign. So
2 according to the Prosecution Witness Maisonneuve the co-ordination
3 between the VJ and the MUP was more than necessary, it was highly
4 professional. Every operation which implies the participation of both
5 the VJ and MUP had to have been carried out in close co-operation in
6 order that the -- each of these formations would be well acquainted with
7 the plans of the other and that incidents of friendly fire would be
8 avoided. That is why co-ordination is done well ahead to clearly
9 establish the responsibilities of all the parties during these
10 operations. And, Your Honours, this can be found at page -- at the page
11 of the transcript 11183.
12 At transcript page 9815, Colonel Crosland - as he himself put
13 it - based on his wealth of experience gained [Realtime transcript read
14 in error "again"] across the world testified that it was quite expected
15 that there should be various forms of co-ordination and co-operation
16 between the forces of the MUP and VJ in Kosovo in order to, among other
17 things, avoid friendly fire. This is transcript page 9815.
18 In addition to these testimonies, we have the SFRY legislation in
19 force at the time which General Lazarevic was duty-bound to adhere to
20 which envisaged the engagement of Yugoslav Army units in operations
21 against renegade terrorist groups. This was fully legitimate and legal.
22 You can find this in Exhibit P1085.
23 Your Honours, line 8, Colonel Crosland and his wealth of
24 experience "gained" across the world; that is what the transcript should
25 reflect.
Page 406
1 The evidence that we drew the attention of the Appellate Chamber
2 to clearly shows that the planning and participation in the joint VJ-MUP
3 operations in counter-terrorist actions is not only legitimate and
4 customary but also necessary, especially in a situation where an armed
5 force is attempting to separate a part of the territory of an
6 internationally recognised country. The MUP and the VJ had an
7 constitutional obligation to protect the territorial integrity and the
8 sovereignty of the country.
9 The Trial Chamber further found that the appellant demonstrated
10 his actus reus also by issuing the orders of Grom 3 and Grom 4 as well as
11 the Joint Command orders drafted by the Pristina Corps which sent the VJ
12 into actions in those locations where there was forcible displacement of
13 Albanians. At this point the Defence wishes to point out that the units
14 of the Pristina Corps were deployed in all the various locations in
15 Kosovo, including those where instances of deportation and forcible
16 transfer were not found to have happened.
17 The crucial issue is that the Chamber invoked those orders which
18 clearly and unequivocally constituted a broader plan for the use of the
19 Army of Yugoslavia in Kosovo and Metohija which had to do with the
20 defence of the country from land aggression and a plan which had been
21 drafted at a level higher than that of the Pristina Corps. The contents
22 itself indicate that the plan was not erected against the civilian
23 population but was rather the result of a war effort for the defence of
24 the country.
25 I will recall briefly something you can see in the slide. 3D690
Page 407
1 is a directive of the General Staff of the Army of Yugoslavia dated the
2 16th of January, 1999, which bears the heading Grom 3. This directive
3 conveys the task to the lower levels, first the 3rd Army and then the
4 Pristina Corps, to apply this use of VJ -- or, rather, to use VJ units in
5 combat against forcible deployment of a multi-national NATO brigade and
6 incursions of the terrorist units from Albania into Kosovo and Metohija.
7 On the basis of this directive, the 3rd Army issued an order,
8 Grom 3, on the 27th of January, 1999, in order to define the tasks of the
9 Pristina Corps to prevent the deployment of a NATO brigade and its
10 joining up with the KLA. This is 5D245. At the same time and further
11 down the chain of command, this order, this plan for the defence of the
12 country, was transformed by the 3rd Army command into an order to block
13 and destroy the KLA in Drenica, Mlaka -- Laba, Malo Kosovo, and Malisevo.
14 The 3rd Army sent out an order that the plan should be carried out at the
15 latest by the 15th of February, 1999. This was 5D249.
16 On the 16th of February the order was, in fact, carried out and
17 issued to carry out these actions, and this is P2808. This was, in fact,
18 an order that was then issued by the Pristina Corps command. The fact
19 that this was all done to defend the country finds support also in a
20 foreign intelligence report which is 60 --
21 THE INTERPRETER: The interpreter didn't catch the number.
22 MR. BAKRAC: [Interpretation] This is 6D1671 from November 1998
23 which follows the activities in the field. And I apologise, the number
24 is 6D1671. This intelligence report which was sent through the embassy
25 in Belgrade to the country in question discusses the activities and the
Page 408
1 organisation of the KLA, noting in particular that the KLA was being
2 re-established and mobilised in Malisevo, Drenica, and Podujevo, that's
3 to say Lab and Malo Kosovo, where some of the strongest and best
4 organised KLA units were spotted. It was indicated that the KLA was
5 actively recruiting and training new groups. Witness Radojko Stefanovic
6 also testified, and at transcript page 21817 he stated that the 16th of
7 February, 1999, order of the Pristina Corps stemmed from the order of the
8 3rd Army. And, therein, it was assessed that the areas of Malo Kosovo,
9 Drenica, and Malisevo where there was a high concentration, a high
10 presence, of the KLA units, these areas were suitable for an air-borne
11 attack by a multi-national brigade of NATO.
12 All this evidence which clearly corroborates the orders clearly
13 lead to the conclusion that these were actions, orders undertaken for the
14 purpose of the defence of the country, undertaken with the desire and
15 with the goal of carrying out combat aims. With an analysis of all these
16 orders we can establish what the objective of the actions of the VJ was
17 and what the chain of command was. These were obviously orders for the
18 defence of the country and there are no illegal orders or directions
19 there. The appellant was obliged to carry out such orders from a
20 superior command. The content of all of these orders and the
21 corroborating evidence unequivocally lead to the conclusion that they do
22 not constitute a screen or a mask in order to conceal that crimes were
23 committed against Albanian civilian population under the guise of alleged
24 fighting against the KLA and in defence of the NATO campaign. If that is
25 not the only reasonable conclusion, then at least it is an alternative
Page 409
1 reasonable conclusion which should have been made by the Trial Chamber.
2 I repeat, by issuing -- the issuance of these orders was taken by the
3 Trial Chamber. One of the actus reus in the responsibility of
4 General Lazarevic. In my view, when you analyse these orders the only
5 reasonable conclusion would be that they were conducted for the purpose
6 of the defence of the country and within war efforts. If you would like
7 to lower the standards, in view of the fact that the Trial Chamber
8 reasoned on the basis of circumstantial evidence, then at least a
9 reasonable alternative conclusion is that these were orders that had to
10 do with the war effort and defence.
11 Especially when we're talking about the fact that in these places
12 that the orders refer to, the KLA concentrations were exceptionally high
13 and the members of the KLA were mixed in with the Albanian civilian
14 population. The Trial Chamber -- the appellant would like to note that
15 the Trial Chamber erroneously and without relying on specific evidence
16 established that among other things Lazarevic demonstrated actus reus of
17 aiding and abetting deportation and forcible transfer by going out into
18 the field and touring the units, whereby he boosted the combat morale of
19 the soldiers. The Defence would like to remind the Appeals Chamber that
20 in the relevant period units of the VJ in Kosovo and Metohija were
21 exposed to fierce bombing from the air and by frequent attacks of the KLA
22 in the whole territory of Kosovo and Metohija. In such circumstances, it
23 is absolutely logical for the corps commander to tour his units. This is
24 done by every commander of any army in the world. The Trial Chamber does
25 not have one direct and then we would say either an indirect proof that
Page 410
1 the tour of units was conducted with the awareness or intent to encourage
2 and support the perpetrators of crimes. We repeat that in order for --
3 this is something that circumstantial evidence would need to point to in
4 order for the conclusion of the Trial Chamber to be the only reasonable
5 conclusion which would believe that that was not the case in this
6 instance.
7 Your Honours, you have the conclusion of the Trial Chamber in
8 front of you, Your Honours, and in the position of the Defence this is
9 exculpatory evidence. If you look at Exhibit P2004, Your Honours, you
10 will see that item 4, dealing with the state of morale, General Lazarevic
11 notifies the 3rd Army and the Supreme Command Staff of the VJ of the
12 following. This is a combat report of the 13th of April, 1999, some 20
13 days thus after the NATO campaign and the bombing began.
14 General Lazarevic says the morale of the corps is very good and stable.
15 The morale is positively influenced by the increasingly prominent view of
16 international political factors, that the issue of Kosovo and Metohija
17 should and must be dealt with by political means.
18 And here is what the result is of Lazarevic's tour of the field.
19 He's encouraging, he's reporting to the superior [as interpreted] 3rd
20 command and the General Staff that the army in the field is prepared and
21 in favour of a peaceful, political resolution of the situation. Would
22 anyone who is aware of deportations and forcible transfer be in a
23 position to report to the command that the awareness and morale of the
24 soldiers is such that they wish for a political rather than a military
25 resolution of the problem and that he would inform his superiors of such
Page 411
1 a position?
2 What is particularly significant is also the testimony of
3 Witness K73 who was mentioned the day before yesterday in the brief by my
4 learned friend, Mr. Kremer, and also Mr. Ackerman referred to the
5 testimony of this witness, Witness K73. My colleague, Mr. Cepic, talked
6 about K90. I am now going to talk about the testimony of K73. My
7 colleague, Mr. Ackerman, pointed to the testimony of this witness
8 yesterday before the Trial Chamber and called or invited the
9 Appeals Chamber to look at the testimony of this witness in detail. I
10 would like the Chamber to review his testimony in detail so that you can
11 see that even though this witness talked about an incident of
12 deportation, he said that he never received an order for deportation or
13 forcible transfer directly. When he testified, this witness talked about
14 one incident here. My learned friend, Mr. Kremer, said the day before
15 yesterday that this witness himself has a problem to face something that
16 he allegedly himself did in one of the actions. But it is evident,
17 however, that this witness does not recognise General Lazarevic as his
18 co-perpetrator and aider and abettor in these acts. He recognises him as
19 a commander; under his command he defended his country. And for him it
20 was a great honour, as he himself said, to defend his country under the
21 command of General Lazarevic.
22 You will find this on T.341 [as interpreted] page of the
23 transcript where Witness 73 says all officers had a high opinion about
24 General Lazarevic. They held him to be a professional soldier, a good,
25 honest, and honourable man who defended his country. He was one of a
Page 412
1 string of commanders or one in the chain of command of the commanders.
2 The witness believed that Lazarevic was a military leader and emphasised
3 that it was an exceptional honour for him to serve the homeland under his
4 command.
5 And finally, which of course is not the task of a witness but I
6 would like to mention, this witness personally holds that
7 General Lazarevic has no place in this courtroom.
8 Your Honours, why am I talking about this? This is completely
9 incompatible with the findings of the Trial Chamber. If the
10 Trial Chamber finds that General Lazarevic's tour in the field was such
11 as to encourage and incite perpetrators of crimes, why then do the
12 Prosecution witnesses, soldiers from the field, have an opinion like this
13 of General Lazarevic? This is an absolute proof, actually, that
14 General Lazarevic was thought to be a general leader in the defence of
15 the country and that he did not have any influence or effect on any kind
16 of illegal or ill deeds. This is transcript page "3415," Your Honours.
17 This is an error in our transcript today.
18 I am also going to mention Prosecution Witness Dusan Loncar who
19 testified about General Lazarevic, said that he can state what most of
20 the VJ officers believe and that is that he is a general par excellence.
21 Prosecution Witness Zlatomir Pesic noted that he never received any order
22 from General Lazarevic, either in writing or oral, that would oppose the
23 law or basic rules on the use of the VJ. This is also a Prosecution
24 witness. And finally, a witness, Prosecution, Ratomir Tanic gave an
25 assessment that Lazarevic did not have a complete overview of what was
Page 413
1 happening on Kosovo and Metohija. The Trial Chamber -- this is
2 transcript page 6756. Zlatomir Pesic is actually transcript page 7267;
3 Dusan Loncar is transcript page 7687; and Ratomir Tanic is transcript
4 page 6756.
5 The Trial Chamber finally concludes erroneously that
6 General Lazarevic knew that his failure to undertake adequate measures in
7 order to ensure a proper investigation of serious crimes committed by the
8 VJ enabled the forces to continue their terror of
9 terror [as interpreted], violence, and transfer. The appellant notes
10 that there is numerous evidence that the Trial Chamber did not evaluate
11 correctly which indicate that General Lazarevic whenever he had knowledge
12 of any crime by a member of the VJ carried out all measures at his
13 disposal in order to investigate the crime and prosecute the
14 perpetrators. There is numerous evidence which indicates without a
15 reasonable doubt that -- there is extensive evidence proving beyond a
16 reasonable doubt that the Trial Chamber erred in finding that
17 General Lazarevic failed to take appropriate measures to investigate
18 serious crimes alleged committed by the VJ. I draw your attention to
19 5D84; that is Lazarevic's combat report of the 3rd of April, 1999. It's
20 a report of the -- some seven or eight days after the beginning of the
21 NATO bombing campaign. In this report General Lazarevic informs the
22 superior command and the General Staff that the day before, on the
23 2nd of April, 32 criminal reports were brought against perpetrators of
24 crimes and eight for murder, one for maltreatment, three for attempted
25 murder, two for car theft, and so on and so forth.
Page 414
1 Thus, at the very beginning of the bombing campaign whenever
2 General Lazarevic received information he would submit a report to the
3 superior command and inform them about it. This exhibit was shown to
4 General Vasiljevic, Prosecution witness. He was part of the intelligence
5 organ in the General Staff of the VJ -- actually, the security organ - I
6 apologise - at the Main Staff of the Army of Yugoslavia. Vasiljevic, and
7 I'm just going to summarise what he said - these are transcript
8 pages 8965, 8966 - where he says that this is a classic example of a
9 combat report as it should be drafted containing all the necessary
10 elements. After that Witness Vasiljevic was shown Exhibit 5D85, a combat
11 report of the 4th of April, 1999, the following day after the combat
12 report of the 3rd of April where General Lazarevic regarding the security
13 says the day before there was six criminal reports filed against
14 perpetrators.
15 Can we look at the following slide, please. And then again when
16 General Vasiljevic was shown this document, General Vasiljevic - and you
17 have that on this slide - replied that in this combat report as well --
18 this combat report as well contains everything that such a combat report
19 should contain. He added -- he added that there was a duty by the
20 security organ as well, that is, his line of reporting, to report back on
21 these crimes. He also, when asked whether what General Lazarevic
22 wrote -- what he wrote in the combat report and whether he undertook
23 everything that he could and was able to do, he said yes, certainly.
24 What General Lazarevic did was what he was supposed to do and his
25 responsibility ended with that. Any further investigation was in the
Page 415
1 hands of higher organs and superior organs if required were obliged to
2 request a more detailed report about these events. And you can find this
3 on transcript 8967 to 8968.
4 The said conduct by General Lazarevic which the Trial Chamber
5 erroneously characterised as acts and omissions constituting the
6 actus reus of aiding and abetting, deportations, and forcible transfer
7 actually must be viewed exclusively as conduct directed at conducting
8 war, or rather, behaviour which in real circumstances constitutes war
9 efforts to defend the territory of a recognised state from armed
10 rebellion and violent secession conducted by the KLA as well as for
11 purposes of defence from the NATO air campaign.
12 In view of all the evidence that we have noted, it is clear that
13 a reasonable trier of fact can only necessarily come to such a decision.
14 The Prosecution should have proved beyond a reasonable doubt that the
15 acts and omissions by General Lazarevic which we cited above were
16 specifically directed at providing practical assistance to perpetrators
17 of crime and that these acts had a significant effect on the execution of
18 crimes. In a case in which such a conclusion is based on circumstantial
19 evidence, this should have been the only reasonable conclusion that could
20 have been drawn from such evidence. It's evident that the examples that
21 we cited as well as other numerous examples from our appeal brief do not
22 allow the Trial Chamber the option to establish that the only reasonable
23 conclusion was that General Lazarevic had the requisite actus reus
24 through the above-cited conduct and alleged omissions. The alternative
25 reasonable explanation of Lazarevic's conduct would be in taking legal
Page 416
1 measures directed at conducting war and defence of the country and not to
2 perpetrator of crimes.
3 In light of the latest jurisprudence, the Defence believes that
4 in this specific case General Lazarevic -- we would need to apply to him
5 the principle of specific direction, regardless of the fact that at the
6 relevant time he was in Kosovo where allegedly deportations and forcible
7 transfers were taking place. The entire territory of Kosovo cannot be
8 considered as one crime scene, especially if we keep in mind the
9 circumstances of daily mass and wide spread bombing on the part of the
10 NATO Alliance and practically daily attacks of the KLA against units of
11 the VJ and MUP. Due to these specific circumstances it was necessary to
12 establish whether General Lazarevic was present at each specific place
13 where a crime was committed. Had General Lazarevic reacted when he knew
14 of any crime or when he found out about any crime, this is indicated by
15 the following examples that he did react: 5D379 is General Lazarevic's
16 request of the 26th of April, 1999, when he asked the superior organs to
17 send urgently to Kosovo a forensic expert team in order to exhume bodies
18 because of alleged information that the Army of Yugoslavia was implicated
19 in crimes and killings in Mali Alas. Also, if you look at Exhibit 5D383
20 you will see that immediately the following day, the VMA sent
21 Dr. Ivica Milosavljevic to help in the investigation of these crimes.
22 What is of particular interest - and I would like to draw the
23 attention of the Chamber to that - is the following:
24 PD383 [as interpreted]. This is what it says, that a forensic expert, or
25 rather, a military expert, a pathologist, will carry out exhumations
Page 417
1 throughout the territory of the Pristina Corps for as long as necessary.
2 So this is not a call in respect of one particular situation or crime.
3 This is a call for this forensic pathologist to remain in Kosovo, to deal
4 with the entire area of Kosovo, and to stay for as long as necessary.
5 A few days later, that is to say at the beginning of May --
6 previously, Your Honours, I do apologise, I would like to draw your
7 attention to the following: PD1315 [as interpreted]. And that is a
8 report, a forensic report, of Dr. Milosavljevic in terms of what he did
9 at Mali Alas and Slovinje. Number 1, this report shows that the call was
10 not just mere writing on paper.
11 Something that was just supposed to show that General Lazarevic
12 did something. It was a sincere, meaningful call to investigate the
13 situation and to punish the possible perpetrators. As for 5D1315, the
14 report on the forensic examination of bodies at these two locations shows
15 that this was truly done. Further on, 5D421 shows that precisely on the
16 basis of this evidence that was initiated by General Lazarevic UNMIK
17 prosecuted crimes at these particular locations. I would like to draw
18 your attention to 5D421 which shows that immediately after that, on the
19 8th of May, 1999, General Lazarevic once again sent a letter to the
20 superior command requesting two more teams of pathologists, forensic
21 pathologists, to carry out additional examinations. Please do focus on
22 this document. General Lazarevic says that all these pathologists are
23 going to perform their functions according to the orders issued by the
24 military court. This shows that he has no further authority with regard
25 to these matters.
Page 418
1 In view of such situations and in view of clear evidence that in
2 each and every case when he was aware of the commission of any crime,
3 General Lazarevic took adequate measures and appropriate measures, the
4 only ones he could have taken. It is quite clear that because of this
5 specific situation of a war, that is to say lack of sufficient
6 information, the impossibility of observing things directly, it was
7 necessary for the Trial Chamber to deal with each and every location of
8 forcible deportation to see whether General Lazarevic was actually there
9 or close to that location or whether he knew that specifically at these
10 locations members of the VJ conducted deportations or forcible transfers.
11 Therefore, we believe that in the case when General Lazarevic was
12 commander of the Pristina Corps the principle of specific direction has
13 to be applied in this case as well, and it has to be established whether
14 General Lazarevic was present at each and one of these locations of
15 deportation or whether he was close to any one of them and whether he
16 could have known that soldiers under his command could have carried out
17 such deportations.
18 I would also like to recall the jurisprudence of the Tribunal.
19 I'd like to go back to something else. I do apologise to the
20 Trial Chamber, but I'm trying to fit into the time allocated to me. So I
21 would like to say that General Gojovic, who was a Defence witness, said
22 that military judicial organs dealt with 601 victims at 11 locations;
23 16687 is the transcript reference. Also Defence Witness Geza Farkas said
24 that when at the General Staff they recapitulated the situation, their
25 assessment was that at Kosovo and Metohija, at the relevant point in
Page 419
1 time, 95 per cent of crimes that were believed to have been committed by
2 members of the VJ were criminally prosecuted. Also I would like to draw
3 your attention to 5D550, the commander of the 175th Brigade of the VJ,
4 I'm saying that criminal reports were filed, although the Trial Chamber
5 says something different. As for Witness Geza Farkas, 16304 is the
6 transcript page reference.
7 Your Honours -- actually, when you assess all this evidence, with
8 all due respect, I would like to remind you of something that of course
9 you know full well. The jurisprudence of this Tribunal does say that
10 presence alone at the scene of a crime is not conclusive of aiding and
11 abetting unless it is shown to have a significant legitimatising or
12 encouraging effect on the principal perpetrator, and so on; this is the
13 Boskoski and Tarculovski trial judgement, paragraph 402, and Brdjanin
14 appeal judgement, paragraph 273, 277. Therefore, I believe it is
15 absolutely necessary here to establish specific direction of
16 General Lazarevic in terms of aiding and abetting in forcible transfers
17 and deportations as far as actus reus is concerned.
18 Also I would like to add something else. Prosecutor versus
19 Perisic, that is another case I would like to deal with. General
20 assistance provided cannot be sufficient evidence in terms of crimes
21 committed by direct perpetrators.
22 THE INTERPRETER: Interpreter's note: We do not have the actual
23 text of the judgement.
24 MR. BAKRAC: [Interpretation] Therefore, it is necessary to
25 establish a direct link between the immediate perpetrator. In these
Page 420
1 cases of actus reus that was established by the Trial Chamber in relation
2 to General Lazarevic, we see no such thing. This can be found in the
3 appeals judgement of Perisic in paragraph 44.
4 In the evidence of this case there is not a shred of evidence
5 that would indicate any direct link of General Lazarevic in the
6 aforementioned case. Also, in the Perisic case it was stated that
7 awareness of the commission of a crime does not establish, per se,
8 specific direction consisting of actus reus separate from mens rea. That
9 can be seen in paragraph 68 of the same judgement.
10 THE INTERPRETER: Interpreter's note: We do not have the
11 original text.
12 MR. BAKRAC: [Interpretation] Your Honours, I see the
13 interpreter's note. Yes, we are going to submit the original text of
14 these judgements to the interpreters.
15 With your leave, Your Honours, I would like to move on to
16 questions related to the following, whether the standard of mens rea was
17 met in terms of aiding and abetting in the case of General Lazarevic.
18 Perhaps at this point in time it would be right for me to try to respond
19 to the question put by the honourable Appeals Chamber to deal with the
20 following question: Actus reus and mens rea in terms of aiding and
21 abetting as part of joint criminal enterprise, whether that can be in
22 existence before the JCE itself. The Defence believes that that's not
23 possible, that that cannot be achieved in such a way.
24 In my modest view as Defence counsel, for as long as there is not
25 an objective the accused cannot assist in carrying out crimes that are
Page 421
1 within this joint purpose. Before the joint enterprise or joint
2 objective or joint purpose comes into being, it is not possible to
3 achieve actus reus and not mens rea either. An aider and abettor has to
4 be aware of crimes and also to know that his conduct significantly
5 contributes to the commission of such crimes. However, an aider and
6 abettor does not accept a possible plan or objective of the enterprise as
7 his own, and in this particular case I'm claiming that he's not even
8 aware of one and does not share this common purpose with the others.
9 That's why I believe that actus reus and mens rea before this plan
10 started at all cannot pertain to deportations and forcible transfers
11 before this plan had been embarked upon.
12 If you believe that this would suffice, then I would like to move
13 on. Thank you, Your Honours.
14 The Trial Chamber erred in determining that the appellant had the
15 necessary mens rea for the crimes of aiding and abetting and the
16 deportation and forcible transfer of Albanian civilians because he was
17 aware of the intentional commission of such crimes by the VJ in
18 co-ordinated actions with the MUP and he knew that his conduct assisted
19 the commission of these crimes. This is paragraph 927 of the trial
20 judgement.
21 Before the Defence starts dealing with the evidence that shows on
22 the contrary, beyond any reasonable doubt, that General Lazarevic was not
23 aware of any kind of intentional commission of these crimes and he did
24 not know that his conduct assisted the commission of these crimes, we
25 wish to point out now that in this specific case and in view of the
Page 422
1 aforementioned specific characteristics of this concrete case, in the
2 view of this Defence a standard has to be applied that implies the
3 existence of a purpose or an objective. Article 25(3)(c) of the
4 Rome Statute. Why am I saying in this specific case and in view of the
5 specific circumstances involved? The NATO air campaign and the alleged
6 simultaneous start of crimes of deportation and forcible transfers under
7 the guise of this campaign as well as previously mentioned evidence make
8 it necessary to adjust the criterion for assessment to these
9 circumstances. This simply is not sufficient. The Defence believes that
10 the Trial Chamber had to determine that the appellant acted with an
11 objective in mind of committing such crimes because knowledge is not
12 sufficient for the existence -- responsibility according to this.
13 However, on the other hand, if this kind of position taken by the
14 Defence is not to be accepted, again the accused has to know that his
15 action or failure to act would assist the main perpetrators of certain
16 crimes. He would have to know that at least some of these crimes would
17 be committed. This is a standard that is also higher than had reason to
18 know. In addition to that, the Defence believes that every professional
19 soldier and even a lay person knows that in any war there is a risk that
20 individuals may commit crimes against the civilian population that cannot
21 be prevented. Therefore, the Defence believes that when the NATO
22 campaign started the Trial Chamber had to establish beyond reasonable
23 doubt that this kind of knowledge did exist on the basis of specific
24 evidence related to this accused. Even if some information about
25 deportations and forcible transfers carried out by members of the VJ had
Page 423
1 been generally known and widely disseminated, this would not support a
2 presumption of the knowledge of the accused, in this case
3 General Lazarevic.
4 The Trial Chamber erred in finding that Lazarevic knew that
5 through his conduct he would help further the campaign of the forcible
6 displacement of Kosovo Albanians. The Defence did not manage to identify
7 the piece of evidence that the Trial Chamber relied upon and which would
8 show beyond reasonable doubt that Lazarevic knew that he would further
9 this campaign through his conduct. If Lazarevic was aware of it and even
10 if he knew that the Kosovo Albanians were leaving the province, there is
11 no evidence that would show beyond reasonable doubt that Lazarevic was
12 aware that this was the result of the force used by his subordinates,
13 especially not -- and there is especially no evidence showing beyond
14 reasonable doubt that Lazarevic knew that with his conduct he was
15 assisting a campaign of forcible displacement and deportations. It is to
16 be noted that as the first NATO bombs landed there were many Serbian
17 civilians who were leaving the area as well.
18 Your Honours, I don't know if this is the right time based on
19 your guidance?
20 JUDGE LIU: Yes, I believe so. And we'll take a break for
21 30 minutes. We'll resume at quarter to 12.00.
22 --- Recess taken at 11.13 a.m.
23 --- On resuming at 11.46 a.m.
24 JUDGE LIU: Yes, Mr. Bakrac, you may continue.
25 MR. BAKRAC: [Interpretation] Thank you, Your Honour.
Page 424
1 Before we took the break, Your Honours, I gave my modest view
2 with regard to the mens rea of General Lazarevic. In an attempt to
3 support my view, I would first like you to -- to point you to Volume III,
4 paragraph 906, of the trial judgement -- or actually, paragraphs 901
5 through 906, where the findings are related about the measures that
6 General Lazarevic took. The Defence believes that the findings of the
7 Trial Chamber which can be found at paragraph 906 where it is stated that
8 General Lazarevic took measures to help the civilian population but that
9 this showed that he was aware of the forcible displacement of the
10 Kosovo Albanians by the VJ forces and that these orders also show that he
11 tried to carry these actions out in a non-violent manner and not with the
12 intention to displace the civilians.
13 I would like to draw your attention to some of these orders,
14 P2029, on the 1st of April, this is six days after the bombing. The
15 order said that measures of prevention are to be applied, prevent looting
16 and other forms of crime. Evidently at the very start of bombing as an
17 experienced officer General Lazarevic issued orders with the intention of
18 preventing crimes, seeking to have the civilians protected from every
19 form of theft and other criminal offences. This is quite understandable,
20 and in our view this does not go to show that he knew that these acts
21 were being committed or that they were being committed systematically or
22 in an organised fashion. Rather, this was a war where NATO bombs were
23 destroying the residences and businesses of citizens and where such
24 occurrences were a possibility.
25 The other order, P1306, directly contradicts - and quite clearly
Page 425
1 so - the finding by the Trial Chamber in paragraph 906. If you look at
2 the order dated the 16th of April, 1999, you will see that
3 General Lazarevic stated the following:
4 "Because of the NATO forces' activity and the activities of SDS's
5 on -- against the civilian population, the corps forces were under daily
6 attack and directly threatened. In order to avert losses among the
7 civilian population from the activities of the aggressor, I hereby issue
8 the following order ..."
9 And what follows is the order that at all the various levels of
10 the corps, regardless of the location - since the Trial Chamber said that
11 these orders were related to those areas where the crime of deportation
12 occurred - here we see that all the corps units were instructed to set
13 out special elements of their forces that would be solely concerned with
14 the protection of the civilian population.
15 Therefore, from the preamble of this order we can infer the
16 knowledge of General Lazarevic. He saw the movement of the civilian
17 population as the result of the attack of the air forces and the attack
18 of the terrorist forces against the VJ and MUP forces. I would also like
19 to draw your attention to Exhibit P -- to Exhibit 5D201 dated the
20 1st of April, 1999. I apologise, Your Honour, my mistake. 5D201 dated
21 the 19th of April, 1999. The heading also reads "signed personally by
22 General Vladimir Lazarevic, commander."
23 In view of the air raids by NATO or as a result of the air raids
24 by NATO, the civilian population within the area of responsibility of the
25 Pristina Corps has started moving and I hereby order, so the reason
Page 426
1 behind the order is clearly stated. All the corps units should see what
2 the situation is with regard to the civilian population on the move, and
3 wherever possible protect the civilian population and prevent any
4 movement and spilling. Therefore, General Lazarevic clearly said what
5 his understanding of the reasons why the civilian population on -- were
6 on the move was, states the air raids as the reasons. He clearly asks
7 from his personnel to find relevant facilities, to set out the forces,
8 and these forces that were sent out to protect the civilian population
9 should provide the protection indeed, and, as it is stated here, prevent
10 any movement and spilling. Therefore, General Lazarevic ordered that any
11 deportation or forcible transfer be prevented.
12 Likewise, in Exhibit 5D372 on the 22nd of April, that's to say
13 less than a month after the start of bombing, General Lazarevic gave an
14 assessment that it was on account of NATO raids and a terrorist activity
15 that the civilian population was on the move. Under 3, he states in this
16 order:
17 "Speed up the return of civilians who are returning to the
18 villages and towns from where they were moved out. Do not allow civilian
19 refugee groups to remain in the areas of defence of the brigades. Ensure
20 a safe return of refugees to the places that they left previously."
21 So this clearly shows an instance where General Lazarevic is
22 asking from his subordinates that all those persons who left their homes,
23 as we saw earlier on, because of NATO bombing and terrorist activities,
24 be allowed to and enabled to return home. Is this a clear showing that
25 General Lazarevic was aware of deportations and forcible transfer and
Page 427
1 that he was indeed making a significant contribution to such acts?
2 Please look at 5D370 as well, where on the 23rd of April, a day
3 after the earlier order of the 22nd April, General Lazarevic ordered
4 under 3:
5 "Accommodate the population in keeping with the already issued
6 orders of the command of the Pristina Corps. The population should be
7 put up in the settlements and ensure that it is controlled. Prevent any
8 misconduct especially in the lower command structure with regard to the
9 civilian population."
10 Those held responsible for this task, brigade commanders. This
11 is 5D374.
12 Your Honour, Your Honours, we have provided numerous such
13 examples in our appeals brief, and this isn't the time to reiterate them
14 nor is it allowed. We just wanted to draw your attention to some of
15 them. You will find all the other orders in our brief and, more
16 importantly, you will find the reports which show that the subordinate
17 units reported to the General on the activities taken, which goes to show
18 that this was not just a piece of paper; rather, this was an attempt to
19 protect the civilian population in a state of war and that this was the
20 actual intention and wish on the part of General Lazarevic.
21 Your Honour, Your Honours, I believe I still have four or five
22 minutes left. I'd like to address now the third question that you put,
23 respectfully. The question was to discuss whether and under what
24 circumstances the mens rea of aiding and abetting, deportation, and other
25 inhumane acts, forcible transfer, may be inferred from the accused's
Page 428
1 knowledge of crimes committed in 1998, including crimes other than
2 deportation and other inhumane acts.
3 In our appeals brief, we have already stated the position of the
4 Defence about the knowledge of General Lazarevic of the crimes that the
5 VJ forces committed in 1998. We gave numerous examples showing that from
6 the presence of foreign observers, whether the KDOM or the KVM, there
7 were different views as to what the conduct of the VJ forces was. The
8 Defence holds that - and this is a humble answer to your question - that
9 when it comes to the alleged crimes committed in 1998 and those committed
10 in 1999, they are not identical in essentials. And since there is no
11 essential identity between these two, any possible knowledge of the
12 crimes in 1998 would, in our view, have no substantial effect on the
13 mens rea of aiding and abetting, deportation, and other inhumane acts.
14 In this particular case we had occasion to hear, although quite
15 unjustly, we didn't have an opportunity to adduce evidence on this, that
16 the -- these VJ activities in 1998 were in August and September. After
17 the October Agreement, foreign observers arrived. And since that point,
18 up until the start of NATO bombing on the 24th of March, 1999, there were
19 no combat activities. If there was an incident, it was sporadic, save
20 for perhaps one or two incidents.
21 There was a very important interruption in the sequence of
22 events, in our view.
23 Now, since there are factors which interrupt the chain of events,
24 they support the conclusion that there should also be an interruption in
25 the natural sequence of consequences. If this notion of direction is
Page 429
1 implied in the finding about the existence of substantial assistance,
2 then there must also exist a connection between actions and crimes that
3 the Prosecution must prove beyond reasonable doubt. Because there is
4 such an interruption in the chain of events, under no circumstances can a
5 finding be made that the mens rea of aiding and abetting, deportation,
6 and forcible transfer can be inferred from the events that transpired in
7 1998. In 1998 there was allegedly excessive use of force, and in 1998 we
8 had the internally displaced persons. There were no deportations or
9 forcible transfers. We talk about internally displaced persons in our
10 brief.
11 JUDGE LIU: Well, one thing, I would like to seek your
12 clarification. On the transcript, 42 , 17, it says, "They are identical
13 in essentials." I wonder whether it should be, "They are not identical
14 in essentials"?
15 MR. BAKRAC: [Interpretation] Yes, they are not. They are not
16 identical.
17 JUDGE LIU: Thank you. I think you are out of our time allocated
18 to you, but I give you one minute to finish your submission.
19 MR. BAKRAC: [Interpretation] Your Honours, thank you. I'm
20 certainly not a better lawyer than Mr. Ackerman, but I am certainly much
21 poorer timekeeper. If you will allow me that one minute to say that our
22 Defence is convinced that in the sea of evidence that we have presented,
23 you will discern the errors the Trial Chamber made in their factual and
24 legal findings that have occasioned a miscarriage of justice. I'm sure
25 that the Appeals Chamber will do that and that General Lazarevic will
Page 430
1 live to see justice done. Thank you.
2 JUDGE LIU: Thank you very much.
3 It seems to me there's no questions from the Bench. Now we would
4 like to hear the Prosecution's response.
5 MR. MARCUSSEN: Thank you, Your Honours.
6 Your Honours, General Lazarevic was one of the most important
7 linchpins for the implementation of the common criminal purpose. As the
8 highest tactical commander of the large VJ force in Kosovo,
9 General Lazarevic's assistance and support was required to plan joint
10 VJ-MUP operations and deploy VJ troops and equipment on the ground.
11 Lazarevic acted with Pavkovic, the 3rd Army commander, and others
12 to plan and co-ordinate joint operations through which the campaign of
13 forcible expulsions in Kosovo was unleashed. In pursuit of this planning
14 and General Lazarevic's Joint Command orders, VJ troops using VJ weaponry
15 and resources systematically and brutally expelled more than 700.000
16 Kosovo Albanians from their homes over the border to Albania in little
17 over three months. As the campaign of terror unfolded, Lazarevic's
18 troops reported back up the chain of command that operations had gone
19 according to plan and he himself reported upwards to Pavkovic in the
20 3rd Army.
21 Despite his intimate and protracted involvement in the operations
22 that targeted the Kosovo Albanian population, the Trial Chamber rendered
23 a very cautious conviction of Lazarevic for aiding and abetting forcible
24 displacements by his VJ forces that was based on a careful and detailed
25 consideration of the totality of the evidence in the case. Lazarevic has
Page 431
1 shown no error in these cautious findings and his appeal should be
2 dismissed.
3 I should perhaps just be clear and say that it is the
4 Prosecution's position that some of the Trial Chamber's findings, in
5 fact, were too cautious as will be discussed by my colleagues on Friday.
6 Your Honours, to give a road map to you for what I'm going to be
7 saying this morning, first, I will explain why General Lazarevic's appeal
8 should be dismissed; second, I will respond to Your Honours' questions
9 which we have labelled questions five, six, and seven; and third, I will
10 turn to the issues arising from the Perisic appeals judgement. I expect
11 to be about an hour and a half so there should be room for questions
12 whenever Your Honours wish to.
13 Now, first, turning to General Lazarevic's appeal and why it
14 should be dismissed. Most of General Lazarevic's appeal is simply a cut
15 and paste from his final trial brief. His appeal essentially boils down
16 to his disagreement with and different evaluation of the evidence from
17 the Trial Chamber's assessment of evidence in the case. He fails to show
18 any errors in the judgement; that is to say, he fails to show that the
19 assessment was unreasonable and occasioned a miscarriage of justice. He
20 has failed to meet the standard of review.
21 Your Honours, General Lazarevic's argument fall into a number of
22 categories that we have discussed in our response brief and I'm not going
23 to go into that again here, but one category is, as I mentioned, mere
24 repeats of submissions made at trial. I would also like to point out
25 that my learned colleagues do not make reference correctly to the
Page 432
1 Trial Chamber's findings and the use of evidence needs to be closely
2 scrutinised. At page 6, for example, submissions were made regarding the
3 Srbica events and it was stated that the evidence showed and the findings
4 were in the judgement that there was a whole range of exculpatory
5 reports. But, Your Honours, the events that are being discussed in the
6 judgement took place in March. If Your Honours look at the exhibits that
7 were referred to by the Defence, they all are reports from a month later,
8 from the 20th of April, from the 3rd, 5th, and 16th of May, so they have
9 absolutely no bearing on the Trial Chamber's findings about what happened
10 in March.
11 And, Your Honours, there are also issues about how the
12 Trial Chamber's findings are being presented. Today at transcript
13 page 38, there's a discussion -- there was a discussion of paragraph 906
14 of the judgement. It was said that it was found by the Trial Chamber
15 that General Lazarevic had no intention to displace the civilians. It
16 was being said as if that was a finding in that paragraph. It is not.
17 That paragraph actually says that he did have the intent but that there
18 was also evidence that he was trying to make efforts to ensure it was
19 done in a non-violent way which is completely different. The finding was
20 that he had intent to displace, but as we know from the judgement there
21 was no sufficient evidence to convict him of other crimes. We'll get
22 back to some of that on Friday.
23 So, Your Honours, we submit as we did in the Prosecution's
24 response brief, that General Lazarevic's appeal should be summarily
25 dismissed on the basis of the consistent jurisprudence of the
Page 433
1 Appeals Chamber in Krajisnik, Martic, Strugar, and Brdjanin.
2 That leads me to addressing Your Honours' fifth question.
3 Your Honours have asked the parties to address with reference to the
4 Trial Chamber's findings whether a breach of duty imposed by national,
5 military, disciplinary law may amount to aiding and abetting by omission
6 under customary international law.
7 Your Honours, we submit that in this case it is actually not
8 necessary for the Appeals Chamber to determine whether a duty imposed by
9 national military disciplinary law alone may amount to aiding and
10 abetting by omission under customary international law. The duty of a
11 commander to prevent or punish violations of international humanitarian
12 law by his subordinate is one of the most fundamental duties imposed by
13 the laws and customs of war. The ICRC study on customary international
14 humanitarian law calls it "a long-standing rule of customary
15 international law." And that is ICRC study -- yes, ICRC study rule 153.
16 The duty is encapsulated in the provisions of
17 Additional Protocol I, Articles 86 and 87, but was used as the basis for
18 conviction of commanders following the Second World War in the
19 High Command Case and the Yamashita case. It is also recognised in the
20 ICTY case law as an international duty under which criminal liability
21 under Article 7(1) could arise for a breach; for example, in the Blaskic
22 appeals judgement, paragraphs 663 and 664.
23 Aiding and abetting by omission based on a breach of duty in
24 international law is not in question. That's found in the Mrksic appeal
25 judgement at paragraph 151.
Page 434
1 The Trial Chamber recognised that a commander's duty to prevent
2 or punish crimes by his subordinates can arise to 7(1) liability at
3 Volume I, paragraph 90, and Volume III, paragraph 622. In addition, when
4 discussing Article 7(3), the Chamber stated that:
5 "The duty to prevent and the duty to punish are distinct and
6 separate responsibilities under international law, and an omission to
7 carry out either duty may give rise to its own charges in an indictment."
8 THE INTERPRETER: Interpreters kindly ask the counsel to slow
9 down. Thank you.
10 MR. MARCUSSEN: My apologies.
11 This is found in Volume I, paragraph 116, and I refer
12 Your Honours also to the Hadzihasanovic appeal judgement, paragraph 259,
13 and the Blaskic appeal judgement, paragraph 83.
14 While the Trial Chamber explored national military justice laws
15 and regulations, this was relevant evidence of Lazarevic's material
16 ability to act and the types of measures that were open to him in his
17 position to prevent crimes and punish crimes by his subordinates. And
18 this analysis is found in Volume I, paragraph 518 to 523. These national
19 laws reflected and incorporated commanders' duties under international
20 law.
21 Unless Your Honours have questions, I will move to the next
22 question. Thank you.
23 Turning to -- now to your sixth question which asks the parties
24 to discuss as a legal matter as well as with respect to the particular
25 Trial Chamber's findings whether the actus reus and mens rea of aiding
Page 435
1 and abetting that formed part of the JCE may be fulfilled prior to the
2 existence of the common purpose of the JCE.
3 Your Honours, as a matter of law, the timing of the existence of
4 the common purpose in this case is irrelevant to General Lazarevic's
5 conviction for aiding and abetting. Under our law the aider and abettor
6 has to contribute to the commission of the crime, not to the joint
7 criminal enterprise. That's found in Kvocka appeals judgement,
8 paragraph 91.
9 It is well established in the jurisprudence that aiding and
10 abetting can take place before, during, and after a crime occurs. And I
11 refer, Your Honours, for example, to the Nahimana appeals judgement,
12 paragraph 482; and the Blagojevic and Jokic appeals judgement,
13 paragraph 127; Simic appeals judgement, paragraph 85; and the
14 Blaskic appeals judgement, paragraph 48.
15 Now, in this case crimes of forcible displacement were committed
16 between March and June 1999, as set out in detail in Volume I. The
17 crimes were committed both by the JCE members but also by the physical
18 perpetrators who were found to have the intent to deport. There's
19 specific findings at the end of each section dealing with the different
20 crime bases about the perpetrators' intent. I'll just refer Your Honours
21 to the general findings in Volume III, paragraph 92 and 95. If
22 Your Honours wish, I can also provide references to all the paragraphs in
23 Volume II, but it may not be necessary. Thank you.
24 However, neither the identity of the perpetrators nor whether
25 they shared the intent with someone else, i.e., they formed a JCE, is
Page 436
1 relevant for aiding and abetting. Indeed "a defendant may be convicted
2 of having aided and abetted a crime even if the principal perpetrators
3 have not been ... identified."
4 That's found in the Brdjanin appeal judgement, paragraph 355; and
5 the Krstic appeal judgement, paragraph 143.
6 The coincidence of General Lazarevic's actus reus and mens rea
7 occurred before and during the commission of deportations in 1999.
8 General Lazarevic was aware that crimes of forcible displacement were
9 probably going to be committed by VJ forces and he knowingly provided
10 assistance to the commission of these crimes. His assistance
11 substantially contributed to the forcible displacement crimes for which
12 he was convicted. That is all that is required for him to be held
13 responsible as an aider and abettor. And this brings me, unless there
14 are questions, to question number seven.
15 Question number seven asked whether and under what circumstances
16 the mens rea of aiding and abetting deportation and forcible transfer may
17 be inferred from the accused's knowledge of crimes committed in 1998,
18 including other crimes than deportation and forcible transfer.
19 In short, Your Honours, the Prosecution's position is that yes,
20 Lazarevic 's knowledge of crimes committed in 1998 is relevant in
21 establishing his mens rea for aiding and abetting crimes that occurred in
22 1999. My colleague, Ms. Monchy, has already provided Your Honours with
23 the legal basis for such an approach. And indeed, it is common and quite
24 proper use of evidence adopted and approved by many Trial and
25 Appeals Chambers at this Tribunal. As a matter of law, there are no
Page 437
1 specific circumstances in which this is not allowed. It is ultimately a
2 factual or evidentiary question.
3 I will therefore just address Your Honours on the facts of this
4 case relating to General Lazarevic. General Lazarevic's knowledge of the
5 massive forcible displacements in 1999 -- excuse me, 1998, is directly
6 relevant to his knowledge of the substantial likelihood that the same
7 crimes being committed during 1999.
8 In addition, the nature of some of the other crimes such as arson
9 and murder as well as the scale of them in 1998 is also relevant to his
10 knowledge of the substantial likelihood of forcible displacements in
11 1999.
12 THE INTERPRETER: The Prosecutor is kindly asked to take into
13 account interpretation and slow down. Thank you.
14 MR. MARCUSSEN: I do apologise once again.
15 Your Honours have heard about the many sources of knowledge of
16 the 1998 crimes from my colleagues already this week. I will, a bit
17 later, distribute a bundle of material where we will be referring to some
18 specific material in the bundle we have prepared, and in that bundle you
19 will find some charts similar to the ones you have been given yesterday.
20 Since I don't propose to go through those charts specifically -- I see
21 your colleague is handing them out. Okay, let's hand them out now.
22 Your Honours, my -- I'm sorry. I can see Judge --
23 JUDGE LIU: I guess there's no objections from the defendants for
24 us to have this bundle of --
25 MR. BAKRAC: [No interpretation]
Page 438
1 JUDGE LIU: Thank you.
2 MR. BAKRAC: [Interpretation] Unless that is being admitted as
3 evidence.
4 JUDGE LIU: No, of course not.
5 MR. MARCUSSEN: Thank you, Your Honours. And thank you to my
6 learned colleagues.
7 Your Honours, in this bundle there are two -- there are two
8 tables: One set out the source of General Lazarevic's knowledge of
9 crimes in 1998 and the other table sets out the sources of knowledge in
10 1999. I'm afraid there's a typo on the front page of the overview, but I
11 think it's self explanatory. As I said, I'm not intending to go through
12 this in any detail today as all of these sources have been discussed so
13 exhaustively already during the proceedings in this appeal. Of course,
14 if there are questions I'm happy to address them.
15 But what all of this shows is that General Lazarevic knew of a
16 broad range of crimes such as looting, arson, and murder which were
17 committed repeatedly by the VJ and the MUP against Kosovo Albanians in
18 1998. In addition, Lazarevic was informed of the massive flight of
19 civilians that resulted from these crimes and the heavy-handed tactics
20 used by joint VJ-MUP forces.
21 It was with this knowledge that General Lazarevic became the
22 commander of the Pristina Corps in 1999. Knowing that his VJ forces had
23 frequently violated -- sorry, had frequently committed violent crimes
24 that had resulted in massive forcible displacements of Kosovo Albanians,
25 he knew that there was a substantial likelihood that these same troops
Page 439
1 acting in similar joint operations with the MUP would continue to use the
2 same heavy-handed tactics and extreme violence against the
3 Kosovo Albanian population and that the Kosovo Albanians would be forced
4 to flee as a result. The Trial Chamber reasonably held that in 1999
5 General Lazarevic was "aware that similar excessive use of force and
6 forcible displacements were likely to occur if he ordered the VJ to
7 operate in Kosovo in 1999." Volume III, paragraph 923.
8 So on the facts of this case, Lazarevic's knowledge of crimes in
9 1998 included deportations and forcible transfer and was directly
10 relevant to the same crimes being committed in 1999. However, the
11 Prosecution submits that if General Lazarevic knew from the events in
12 1998 that VJ forces would probably commit widespread crimes, including
13 looting and burning of homes, and inflict extreme violence on civilians
14 in 1999, then he would also have known that the civilian population would
15 probably be forced to flee in order to escape this. Therefore, his
16 knowledge of widespread crimes including violence was relevant to his
17 knowledge of the probability of forced displacement.
18 And finally, I would like to stress that the Trial Chamber's
19 findings on General Lazarevic's knowledge in 1998 was just one of many
20 strands which enabled -- which established his knowledge and his mens rea
21 for aiding and abetting during events in 1999. This is illustrated by
22 the second table that I discussed at the beginning of my answer to
23 Your Honours' question. Again, I'm not suggesting that we necessarily
24 need to look at it today.
25 I would like at the end of my submission on question seven to
Page 440
1 note that I got the impression that my learned friends were arguing a new
2 ground of appeal today. It was said that the Rome Statute of the ICC had
3 a purpose standard for aiding and abetting and that that purpose standard
4 should be applied by this Appeals Chamber in this case. Your Honours,
5 first of all, the mens rea standard of this Tribunal is clear. The
6 standard is knowledge of a substantial likelihood. It is not a purpose
7 standard. And secondly, the Rome Statute is not binding on the ICTY and
8 is not necessarily a reflection of customary international law, and we
9 would submit actually on this point it is not. We would refer
10 Your Honours to the Katanga and Ngudjolo confirmation decision,
11 paragraphs 507 and 508 regarding the binding nature of the ICC Statute
12 and also to the ICC Statute Article 10.
13 Your Honours, this includes -- unless I may further assist in
14 relation to Your Honours' questions the Prosecution's response to the
15 three questions that were put. No.
16 Thank you, Your Honours. Your Honours, I now turn to address the
17 Perisic appeal judgement. First, I will show that there are cogent
18 reasons for the Appeals Chamber to depart from the Perisic appeal
19 judgement and specifically its findings on specific direction. And
20 second, I will submit that if the Appeals Chamber does not find cogent
21 reasons, then General Lazarevic's conviction should not be disturbed
22 because of the Perisic appeal judgement.
23 Turning to the first point on cogent reasons. There are four
24 important cogent reasons to depart from the Perisic appeal judgement on
25 specific direction. First, the Perisic appeal judgement has created a
Page 441
1 new specific direction element for aiding and abetting which is not found
2 in customary international law. Second, the Perisic appeal judgement
3 incorrectly interprets the Appeals Chamber's consistent jurisprudence.
4 Third, it introduces vague concepts which lead to considerable
5 uncertainties and difficulties in practice. And fourth, it undermines
6 the respect for international humanitarian law and is against the
7 interests of international justice.
8 First, customary international law does not require specific
9 direction as an element for aiding and abetting. I will not embark on a
10 full exploration of customary international law today; that is not
11 necessary. It was already done by this Tribunal 15 years ago. Customary
12 international law on aiding and abetting was thoroughly examined in the
13 Furundzija trial judgement. In a 20-page analysis of relevant
14 international instruments and jurisprudence, the Furundzija trial
15 judgement concluded that the mens rea of aiding and abetting according to
16 customary international law is knowledge. And it held that "the
17 actus reus of aiding and abetting in international criminal law requires
18 practical assistance, encouragement, or moral support which has a
19 substantial effect on the perpetration of the crime." Furundzija trial
20 judgement paragraphs 249 and 235. And there's no mention of any specific
21 direction requirement.
22 Only seven months later the Furundzija Trial Chamber -- sorry, I
23 start that again.
24 Only seven months after the Furundzija trial judgement, the
25 Appeals Chamber rendered its judgement in the Tadic case. It contained
Page 442
1 no analysis of or reference to customary international law on aiding and
2 abetting. And it is in that judgement that the wording "specific
3 direction" appears for the first time in the Tribunal's jurisprudence.
4 And it appears -- in the context in which it appears it indicates that
5 the Appeals Chamber did not want to add a new element to aiding and
6 abetting and this can be seen in the Tadic appeal judgement
7 paragraph 229(iii).
8 Specific direction was used only to explain some distinctions
9 between aiding and abetting and joint criminal enterprise and not to add
10 a new element. The Appeals Chamber did not explain where the wording
11 "specific direction" came from; it provided no reasons as to why such a
12 requirement is needed. It surely would have done so if it had intended
13 to change or give guidance on the meaning of the Furundzija elements.
14 Moreover, Your Honours, the conclusions of the
15 Furundzija Trial Chamber were explicitly approved by the Appeals Chamber
16 in the Aleksovski appeal judgement at paragraph 162. As we will return
17 to later, it is also clear from the Aleksovski appeal -- of the -- sorry.
18 It is also clear from the Aleksovski Appeals Chamber's explanation of the
19 Tadic appeal judgement that it did not understand it as containing a
20 "specific direction" element for aiding and abetting. None of the
21 subsequent judgements that have reproduced the Tadic language discusses
22 customary international law on the basis of specific direction as a
23 requirement.
24 It is therefore clear that customary international law, as
25 authoritatively interpreted by the Tribunal, do not require specific
Page 443
1 direction for aiding and abetting liability, neither on the actus reus
2 nor on the mens rea side. I would note as an aside here that the
3 Perisic Appeals Chamber --
4 JUDGE LIU: Yes, Judge Pocar has a question.
5 JUDGE POCAR: May I ask you for your assistance. You said none
6 of the subsequent judgements have reproduced the Tadic
7 language discuss -- discussed international law on the basis of specific
8 direction as a requirement. Can you mention these judgements if you have
9 the references? What judgements are you referring to exactly --
10 MR. MARCUSSEN: The --
11 JUDGE POCAR: -- when you mentioned the judgements that have
12 reproduced the Tadic language?
13 MR. MARCUSSEN: They are referred to in footnote 100 of the
14 Perisic appeal judgement, but there are numerous judgements which have
15 listed -- have lifted, if you like, the language of Tadic in setting out
16 what the elements of aiding and abetting are. But none of them have had
17 a discussion of -- it's a -- if I may, for consistency there have been a
18 repetition of the very wording but there have never been a new
19 interpretation of the language. That was the point I was trying to make.
20 And we will provide you with a list of the cases if Your Honours will
21 allow my colleague to compare --
22 JUDGE POCAR: So --
23 MR. MARCUSSEN: -- if I may come back to this with a list of the
24 specific case references I will do that in a little bit.
25 JUDGE POCAR: So your point is that the only judgement that
Page 444
1 discusses that and gives an interpretation is Aleksovski?
2 MR. MARCUSSEN: Correct.
3 JUDGE POCAR: Thank you.
4 JUDGE LIU: Well, counsel, I will ask you a question.
5 MR. MARCUSSEN: Of course, Your Honour.
6 JUDGE LIU: If you claim that specific direction is not an
7 element for the aiding and abetting, how could you distinguish the law
8 force support to a legitimate military action with the aiding and
9 abetting of the criminal acts? Do you think the existing elements of the
10 aiding and abetting is enough for that?
11 MR. MARCUSSEN: Yes, Your Honour. And I will be addressing this
12 at the very end as the fourth cogent reason. But in sum, Your Honour, we
13 submit that it cannot be a question of the position of the specific
14 perpetrator or the specific factual scenario which by the legal analysis
15 of the elements of aiding and abetting. There's one set of elements for
16 aiding and abetting that apply to everyone and ultimately it would be a
17 factual determination whether assistance from one military organisation
18 to another or whatever the factual scenario is, whether the elements of
19 aiding and abetting are met based on the knowledge and substantial
20 contribution standards that we have in the Tribunal. I don't know if
21 that answers Your Honour's question. Thank you, Your Honour.
22 So what I want to mention as an aside is that in the
23 Perisic Appeals Chamber's judgement when it discusses the development of
24 the jurisprudence on aiding and abetting, there's actually no reference
25 neither to the Tadic -- sorry, neither to the Furundzija trial judgement
Page 445
1 nor to the endorsement of that judgement in the Furundzija appeal
2 judgement -- I'm sorry, to the Furundzija trial judgement or the
3 Aleksovski appeal judgement it should have been.
4 Your Honours, the Perisic appeal judgement does not discuss
5 customary international law except for one reference in footnote 115 to
6 one World War II case, Zyklon B, which it incorrectly represents as
7 supporting specific direction. It describes the case as "finding two
8 defendants guilty of assisting crimes [sic] of concentration camp
9 detainees by providing gas, despite arguments that the gas was to be used
10 for lawful purposes ...," and then, "... after reviewing evidence that
11 the defendants arranged for S.S. units to be trained in the use of this
12 gas to kill humans."
13 Your Honours, I respectfully submit that there is no way that the
14 Zyklon B case can be interpreted in this way. And if I may refer to the
15 handout that I provided Your Honours this morning. We have included an
16 excerpt of the Zyklon B case, and I would invite Your Honours to look at
17 this case with me. I would first like to draw Your Honours' attention to
18 page 100 of the case which is on the second page of this little bundle.
19 Your Honours will see how the Prosecution presented the case in
20 its closing arguments. The essential parts I'm going to go through are
21 numbers 1, 2, 3, and 4. First the Prosecution said that the essential
22 question was whether the accused knew of the purpose to which that gas
23 was being put.
24 Later on this report explains that:
25 "Counsel said that it was unbelievable that Dr. Tesch did not
Page 446
1 know that anything wrong went on in the concentration camps."
2 Again, clearly knowledge.
3 The Prosecution also said that:
4 "It was ... unbelievable that Dr. Tesch had no knowledge of the
5 amount of gas being supplied to the S.S. and to Auschwitz in particular
6 by a firm which was wholly his property."
7 But also when the Judge Advocate summed up the case, the
8 Judge Advocate at the passage that I've marked with a number 4 said that
9 there were three facts which had to be considered. And the third fact
10 was -- as I said:
11 "Thirdly, the accused knew that the gas was to be used for the
12 purpose of killing human beings."
13 It is true that in the case there was some evidence of training,
14 but that evidence was discussed in the judgement at paragraph -- at
15 page 95 and the Defence contested this evidence and the Prosecution, as
16 we can see, did not rely on it. I haven't included these passages but
17 it's at pages 95, 97, and 99.
18 [Prosecution counsel confer]
19 MR. MARCUSSEN: This interpretation by the Perisic appeal
20 judgement of Zyklon B is all the more astonishing in that the Zyklon B
21 case is discussed in quite some detail in the Furundzija trial judgement
22 in paragraphs 222 and 223, which is a judgement which was approved by the
23 Aleksovski appeal judgement.
24 So, Your Honours, the Tribunal was created to prosecute those
25 most responsible for serious international crimes under customary
Page 447
1 international law. In customary international law, there is no specific
2 direction element either in the actus reus or on the mens rea elements of
3 aiding and abetting. The Perisic appeal judgement, therefore, has
4 departed from customary international law, which the Tribunal was created
5 to apply. This in itself is a cogent reason for the Appeals Chamber to
6 depart from the Perisic appeal judgement.
7 And before I move on, if I may just return to Judge Pocar's
8 question, the cases on specific direction can be found in the
9 Perisic appeal judgement in footnote 70 and not footnote 100 as I
10 incorrectly stated. I apologise for that.
11 The second cogent reason to depart from the Perisic appeal
12 judgement is that it ignores and misrepresents the Appeals Chamber's
13 previous judgements which have explicitly rejected the specific direction
14 element. First, the Furundzija appeal judgement completely ignores, as
15 I've mentioned -- I'm sorry, I keep making the same mistake, it seems.
16 First, the Perisic appeal judgement completely ignores the
17 Furundzija trial judgement and the Aleksovski appeals judgement
18 determination which limited the Tadic specific direction wording to its
19 context.
20 Your Honours, this -- there's an analysis found in -- of this in
21 paragraphs 162 to 164 of the Aleksovski appeal judgement which makes this
22 point, and I'll try to go through that in some detail now.
23 In paragraph 162, the Aleksovski appeal judgement endorses the
24 Furundzija trial judgement's statement of the elements of aiding and
25 abetting which was the knowledge standard and the substantial
Page 448
1 contribution standard. And then it explains Tadic in paragraph 163,
2 which Your Honours have on the screen now. It's a complicated paragraph,
3 but it is nevertheless very clear. So after having discussed and
4 approved the Furundzija trial judgement it explains that:
5 "Subsequently, in the Tadic judgement, the Appeals Chamber
6 briefly considered the liability of one person for acts of another person
7 where the first person has been charged with aiding and abetting that
8 other person in the commission of a crime. This was the context -- this
9 was in the context of contrasting that liability with the liability of a
10 person charged with acting pursuant to a common purpose or design with
11 another person to commit a crime, and for that reason that judgement does
12 not purport to be a complete statement of the liability of the person
13 charged with aiding and abetting."
14 And then in the next paragraph, paragraph 600 -- sorry, 164, the
15 Aleksovski appeals judgement went on to clearly state -- set out the
16 actus reus element for aiding and abetting in a way which did not include
17 specific direction. And further, this can -- that it did not consider
18 specific direction to be an element can also see when it applied the
19 aiding and abetting standard to the facts of the Aleksovski case. I
20 refer to paragraphs 168 and 169.
21 So the Appeals Chamber at the time did not see any contradiction
22 between the Furundzija trial judgement and the Tadic appeal judgement
23 elements of aiding and abetting liability. It did not understand the
24 Tadic appeal judgement as a definitive statement on aiding and abetting.
25 It did not understand the Tadic appeal judgement as adding a
Page 449
1 distinction -- I'm sorry, to adding a distinct requirement of specific
2 direction.
3 The Perisic appeal judgement, however, goes back to Tadic and
4 offers an alternative interpretation of the specific direction language
5 which is the one that the Aleksovski appeal judgement excluded. In the
6 same way, the Perisic appeal judgement goes back to the Blagojevic appeal
7 judgement and offers an interpretation which was explicitly rejected by
8 the Appeals Chamber in Mrksic and Lukic. And then it goes on to
9 incorrectly interpret the Appeals Chamber's judgements in Mrksic and
10 Lukic, despite their explicit rejection of specific direction as an
11 element of aiding and abetting.
12 The Perisic appeal judgement interprets the Blagojevic appeals
13 judgement paragraph 189 as endorsing the existence of a specific
14 direction element in the actus reus of aiding and abetting. That's in
15 paragraphs 31 and 32. The Perisic appeal judgement's interpretation was,
16 however, rejected by the Appeals Chamber in both Mrksic and Lukic, in
17 which the appellants argued that specific direction was required as an
18 element and that it had not been fulfilled in those cases. This was
19 therefore extensively briefed in both cases. In Mrksic the appellant
20 argued that he could not be convicted of aiding and abetting because his
21 omissions were specifically directed to [sic] assist, encourage, or lend
22 moral support to the perpetration of the crimes that he had been
23 convicted of -- that he were not specifically convicted of.
24 The Perisic appeal judgement misapprehends the Mrksic appeal
25 judgement when at paragraph 33 it states that the Mrksic Appeals Chamber
Page 450
1 never [sic] discussed specific direction in the context of mens rea.
2 This is incorrect. I'm sorry, that it only discussed -- only discussed
3 it in the context of mens rea. This is incorrect.
4 While Sljivancanin had raised the issue as a mens rea issue, the
5 Appeals Chamber emphasised that "Sljivancanin misapprehends the mens rea
6 standard applicable to aiding and abetting" and clarified that it should
7 have been raised as an actus reus issue. The Appeals Chamber then
8 explicitly rejected his argument, finding that specific direction was
9 "not an essential ingredient of the actus reus of aiding and abetting,"
10 Mrksic appeal judgement paragraph 159. There is nothing ambiguous about
11 this express rejection. Furthermore, the question of whether specific
12 direction was an element of aiding and abetting was directly in issue and
13 had to be decided by the Appeals Chamber. Its rejection of specific
14 direction was an essential part of its reasoning and was not a mere
15 passing reference, as it was put in the appeals judgement in Perisic,
16 because the point had to be decided to affirm the conviction.
17 And the point was again affirmed -- confirmed in the Lukic appeal
18 judgement paragraph 424, where the Appeals Chamber said:
19 "In Mrksic and Sljivancanin the Appeals Chamber has clarified
20 that specific direction is not an essential ingredient of the actus reus
21 of aiding and abetting" and then it finds that there are -- there is no
22 cogent reason to depart from this jurisprudence.
23 The Perisic Appeals Chamber's attempt to distinguish or reconcile
24 these judgements with its own preferred interpretation of the law at
25 paragraphs 32 to 36 is untenable given the Mrksic and Lukic Appeals
Page 451
1 Chamber's plain language rejecting specific direction.
2 Further, like in Blagojevic, the Appeals Chambers in Mrksic and
3 Lukic did not conduct any assessment as to whether a specific direction
4 finding was in fact implicit in the substantial effect and knowledge
5 findings by the Trial Chamber. Moreover, both the dissenting opinions of
6 Judge Guney at paragraphs 10 and 11 and of Judge Agius in Lukic confirmed
7 that the Appeals Chamber's judgements in these two cases were plainly
8 rejecting specific direction as an element of aiding and abetting.
9 In sum, Your Honours, the Perisic appeal judgement's finding that
10 specific direction is an element of the actus reus of aiding and abetting
11 ignores the specific findings in the Aleksovski appeal judgement about
12 the meaning of Tadic; it misinterprets Blagojevic in a manner which has
13 been explicitly denied by the Appeals Chamber in Mrksic and Lukic. The
14 Appeals Chamber's flawed analysis in Perisic should be departed from.
15 And, Your Honours, the Appeals Chamber should find that the
16 serious misinterpretation of the Tribunal's long-standing jurisprudence
17 rejecting specific direction is a cogent reason to depart from the
18 Perisic appeal judgement.
19 The third cogent reason --
20 JUDGE LIU: Well, counsel --
21 MR. MARCUSSEN: Yeah.
22 JUDGE LIU: -- I wonder whether it's the right time for us to
23 stop here since you are going to the third element of your submission --
24 MR. MARCUSSEN: Certainly, Your Honour, we can do that and then
25 continue after.
Page 452
1 JUDGE LIU: Thank you very much.
2 We'll resume at 2.30 this afternoon.
3 --- Luncheon recess taken at 12.58 p.m.
4 --- On resuming at 2.29 p.m.
5 JUDGE LIU: Yes, Mr. Marcussen, you may proceed.
6 MR. MARCUSSEN: Thank you, Your Honour.
7 So, Your Honours, I'm turning to the third cogent reason. As the
8 Aleksovski Appeals Chamber pointed out:
9 "The fundamental mandate of the Tribunal to prosecute persons
10 responsible for serious violations of international humanitarian law
11 cannot be achieved if the accused and the Prosecution do not have the
12 assurance of certainty and predictability in the application of the
13 applicable law." Paragraph 113(ii).
14 A third cogent reason to depart from the Perisic appeal judgement
15 is that it introduces vague concepts which lead to considerable
16 uncertainties and practices as illustrated by my learned friend's
17 arguments this morning. The Perisic appeal judgement introduces new
18 elements into the law of aiding and abetting specific direction and the
19 proximity/remoteness of an accused which has not been applied before.
20 Parties, the Prosecution, Chambers, in this Tribunal and others will now
21 have to grapple with their application. These new concepts are unclear
22 and problematic.
23 The Perisic appeal judgement does not explain what specific
24 direction as an objective element actually is, but simply states that it
25 is a culpable link, paragraphs 37, 38, and 44.
Page 453
1 Further, there appear to be considerable disagreement between the
2 Judges in their separate and dissenting opinions. Four out of five
3 Judges in the Perisic Appeals Chamber suggest that specific direction is
4 more akin to a mens rea element, Judges Meron and Agius in their separate
5 opinion at paragraph 4; Judge Liu dissenting at paragraph 2 and
6 footnote 7; Judge Ramaroson, separate opinion paragraphs 7 and 9.
7 And in the application of specific direction to the facts of the
8 Perisic case, the Appeals Chamber appears to consider it a cognitive
9 element going beyond knowledge of assistance seeking purpose, at
10 paragraph 69.
11 The implication of the Perisic appeal judgement is that the
12 culpable link will require evidence that the aider and abettor's mens rea
13 exceeded the knowledge standard to something akin to purpose. Yet, the
14 Perisic appeal judgement reasserts that the mens rea for aiding and
15 abetting is knowledge, not purpose, at paragraph 48, as established by
16 the long standing jurisprudence of the Tribunal. The apparent
17 contradiction is difficult to understand or to reconcile in practice.
18 The Perisic appeal judgement also blurs the lines between aiding
19 and abetting and JCE, thus undermining the purpose of aiding and abetting
20 liability. If an aider and abettor now has to specifically direct his
21 assistance to a crime, then there is no difference in the mental state of
22 an aider and abettor and the JCE members who share the common purpose.
23 The Perisic appeal judgement also creates considerable
24 uncertainty because it introduces a new notion of remoteness without any
25 basis in the jurisprudence of the Tribunal. In order to distinguish the
Page 454
1 prior judgements which did not explicitly apply a specific direction
2 requirement, the Perisic Appeals Chamber states that the accused in those
3 previous judgements were proximate aider and abettors such that a
4 specific direction finding could have been implicit in the findings
5 regarding other aiding and abetting elements, at paragraph 38 and in
6 footnote 100.
7 In doing so, it sets two evidentiary standards for aiding and
8 abetting, one for a proximate aider and abettor which do not require
9 explicit consideration and reasoning for one of the elements; and a
10 different one for a remote aider and abettor, where explicit
11 considerations and reasons must be given.
12 And, Your Honours, the confusion was illustrated this morning.
13 My learned friends understand the specific direction element to require
14 that the accused was present when the crimes were being committed. We
15 submit that that's not the case. Somebody like Krstic who was convicted
16 as an aider and abettor, for example, was not present when the crimes
17 were committed, but that this issue come up certainly shows how confusing
18 the situation has now become.
19 It is also confusing because proximity is not defined -- is not
20 determinative of the nature or impact of assistance nor of a
21 contributor's knowledge or frame of mind. For example, a remote
22 perpetrator may be able to recognise a wider pattern of crimes or the
23 systematic nature of crimes which he is assisting and may be able to make
24 much more substantial contributions or assistance in crimes.
25 Furthermore, the Appeals Chamber did not indicate where the
Page 455
1 boundaries between remoteness and proximity might lie. It only indicated
2 that it is a fact-based analysis which "will depend on the individual
3 circumstances of the case," and that relevant factors include significant
4 temporal distance and geographical distance. However, it also stated
5 that this list is not exhaustive, paragraph 40.
6 These uncertainties may lead to serious problems in practice as
7 individuals will not be able to understand when their acts may lead to
8 liability. Trial Chambers may also have difficulties applying the test
9 imposed by the Perisic appeal judgement. The Appeals Chamber should find
10 the problems and uncertainties created by the Perisic appeal judgement
11 provide a cogent reason to depart from it.
12 And if Your Honours will excuse me just for one second.
13 [Prosecution counsel confer]
14 MR. MARCUSSEN: Your Honours, I now turn to the fourth cogent
15 reason and I will be returning to Judge Liu's question as well -- sorry,
16 maybe there's a question beforehand.
17 JUDGE LIU: Yes, before that could I put a question to you. I
18 think this morning the appellant submits that it was necessary to
19 establish the accused was present at each specific places where a crime
20 is committed so that to establish the aiding and abetting responsibility
21 of the accused. And I understand that your position is the remoteness or
22 proximity is not an essential element in the actus reus of the aiding and
23 abetting. Maybe just because of this question of remoteness the
24 Appeals Chamber of Perisic case introduced the "specific direction"
25 elements in this aspect. Do you have anything to say in this area?
Page 456
1 MR. MARCUSSEN: Your Honours, I certainly agree that the Perisic
2 judgement could be read in that way, and I would submit that raises an
3 additional serious issue with that judgement. We submit that it cannot
4 be the case that different legal standards apply to accused at different
5 levels or different distances, whatever that remoteness means, from a
6 crime. There must be one legal standard that applies to all, that must
7 be a fundamental principle that also this Tribunal applies.
8 But I agree with that it -- the Perisic judgement could be seen
9 as introducing this element for specific type of cases. As I said, we
10 submit that that would be highly problematic if that's actually what it
11 is. That cannot be the law if there are different standards for
12 different accused. As I will get back to in a little bit in answering --
13 when we get to cogent reason number four, we also submit that there is no
14 reason to introduce such new standards to deal with a specific problem
15 because the existing elements of aiding and abetting safe-guard against
16 any unreasonable convictions. The sufficient -- the existing elements
17 provide -- set such a high threshold that there's not a risk that just
18 anybody who contributes -- who assists, say, a foreign government or
19 insurgency forces will be unreasonably convicted. And we understand, of
20 course, the context is that it's unfortunately known that in many armed
21 conflicts there are elements who might commit crimes. And I think we all
22 understand that it's -- it may be a concern if just the fact that it is
23 known that somebody may commit a crime, somebody who provide assistance
24 to the army can now suddenly be held responsible as an aider and abettor
25 in that crime. But really the high standard we have for aiding and
Page 457
1 abetting in the jurisprudence safe-guard against those kind of
2 situations, just as somebody who legitimately sold handguns isn't found
3 to be an aider and abettor in every single robbery that may be committed
4 with that weapon that was sold.
5 I hope that was of assistance.
6 JUDGE LIU: Thank you. Yes, you may proceed.
7 MR. MARCUSSEN: Thank you.
8 So, Your Honours, the fourth cogent reason is that the Perisic
9 appeal judgement undermines the respect for international humanitarian
10 law. Allowing persons to engage in conduct they know will substantially
11 contribute to a crime because it is not their specific aim to do so risks
12 undermining international humanitarian law.
13 The Perisic appeal judgement, as I mentioned, give rise to what
14 appears to be two fundamental implications. First, the judgement
15 expressly states that the aider and abettor must specifically direct his
16 acts towards a crime or crimes; and second, from the actual findings of
17 that case when the Appeals Chamber applied specific direction to the
18 Perisic case, it appears that a remote aider and abettor who both knows
19 of the substantial likelihood that his acts will assist crimes and whose
20 conduct does, in fact, substantially assist in those crimes will not be
21 considered to have met the elements of aiding and abetting -- the element
22 of specific direction.
23 What is the outcome of this? It means that a remote aider and
24 abettor who both knowingly and substantially contributes to widespread
25 and systematic crimes will escape liability for aiding and abetting.
Page 458
1 Your Honours, this impunity gap cannot be accepted.
2 And worse, the Perisic appeals judgement appears to require
3 assistance to a purely criminal organisation in order for a remote aider
4 and abettor to attract criminal responsibility. Both governments -- but
5 governments, armies, security forces, insurgency and rebel movements will
6 hardly ever be purely criminal. By introducing a requirement that
7 contributions must be to purely criminal organisations, the impunity gap
8 becomes so huge that little is actually left of aiding and abetting
9 responsibility for remote perpetrators in practice.
10 The customary international law standard of aiding and abetting
11 promotes the respect for international humanitarian law. The
12 Perisic appeal judgement undermines it. The two elements of the
13 customary international law standard of aiding and abetting ensures that
14 there is no risk that anyone will be unreasonably convicted. Only when
15 it's proven beyond a reasonable doubt that the accused know of the
16 substantial likelihood that his conduct would assist in the commission of
17 serious international crimes and when it's proven beyond a reasonable
18 doubt that his assistance actually had a substantial effect on the
19 commission of those crimes can he be held responsible as an aider and
20 abettor.
21 This was the question, I believe, that Your Honour, Judge Liu,
22 put. The fact that there is a risk that sending troops or providing
23 equipment will lead to crime does not mean that a person is prohibited
24 from assisting a war effort or otherwise legitimate operations and will
25 not be held liable as an aider and abettor if he does so.
Page 459
1 There are no safe-guards in customary international law of -- in
2 the customary international law standard of substantial effect and
3 knowledge of assistance to crimes to avoid this. First, the standard of
4 knowledge is quite high. It is not sufficient to know of a risk of
5 crimes. The accused but know about -- must know that crimes are probably
6 going to be committed. In particular, if a person takes reasonable
7 measures to ensure that his assistance will not be used to commit crimes,
8 he will not know that crimes will probably be committed nor that his
9 assistance will probably assist in any such crimes. And such measures
10 may vary from case to case, but could, for example, include obtaining
11 guarantees that the help will not be used to commit crimes, obtaining
12 guarantees that the receiving forces will take all necessary measures to
13 prevent and punish crimes before help is provided, could also be
14 providing training on international humanitarian law before or as a
15 condition for providing assistance, it could be stopping or temporarily
16 ceasing the provision of assistance if crimes are permitted but not
17 punished, it could amount to asking for the return of material or
18 manpower provided if it is used to commit crimes, and the persons who
19 received the assistance failed to take reasonable and necessary measures
20 to prevent and punish crimes. There are many steps that a provider of
21 assistance can take: To, first of all, ensure that crimes are not being
22 committed, and taking those steps will make it very reasonable for that
23 person to believe that crimes are not being committed and certainly not
24 being committed with -- somehow with the assistance of the -- through the
25 means that are being provided by the assistance. And therefore, there
Page 460
1 are sufficient safe-guards to avoid unreasonable results.
2 But moreover, and very importantly, such steps would reduce the
3 prevalence of crimes and encourage adherence to international
4 humanitarian law. If such steps do not work and those receiving the aid
5 still use it to commit crimes, then the persons who knowingly continued
6 to provide assistance in these circumstances may be liable for aiding and
7 abetting those crimes. Equally, if a person knows that no means would
8 ever be sufficient to prevent the commission of large-scale massive
9 systematic crimes, they should refrain from providing the assistance or
10 run the risk of being held criminally liable as aiders and abettors.
11 The customary international law standard on aiding and abetting
12 promotes the respect for international humanitarian law; the Perisic
13 appeal judgement undermines it.
14 All of the above shows that there are cogent reasons to depart
15 from the Perisic appeals judgement. It is wrong in customary
16 international law, it wrongly interprets the Appeals Chamber case law,
17 and very seriously it creates uncertainty and problems, and, maybe worse
18 of all, it undermines the adherence to international humanitarian law
19 contrary to the interests of international justice.
20 The Appeals Chamber should reiterate that specific direction is
21 not a distinct aiding and abetting requirement or that if it is involved
22 in the actus reus it is necessarily included within the element of
23 substantial effect.
24 Now, should the Appeals Chamber require further assistance on
25 cogent reasons, the Prosecution can prepare a supplemental written brief
Page 461
1 on this issue.
2 If there are no questions on this, I shall move on to the final
3 part of my submission.
4 JUDGE LIU: [Microphone not activated]
5 MR. MARCUSSEN: Thank you.
6 Your Honours, if the Appeals Chamber decides that there are no
7 cogent reasons to depart from the Perisic appeal judgement, then the
8 Appeals Chamber may have to consider: One, whether the Trial Chamber
9 should have entered explicit findings regarding the specific direction
10 element of the actus reus for aiding and abetting; and two, if it did not
11 have to make such findings, whether the Trial Chamber's findings
12 implicitly included this element. And actually, I think Your Honours
13 would have to make those determinations because it was specifically
14 raised by my learned colleagues this morning.
15 Contrary to what my learned friends submitted this morning, the
16 Trial Chamber did not have to make explicit findings regarding specific
17 direction as an element of the actus reus of aiding and abetting in this
18 case. This is because General Lazarevic is a proximate aider and abettor
19 rather than a remote one, under Perisic paragraph 39.
20 First, whereas General Perisic was remote in that he was an
21 officer in a foreign army outside the chain of command of those who
22 committed the crimes in Srebrenica and Sarajevo, General Lazarevic was
23 the corps commander of the VJ soldiers perpetrating the forcible
24 displacements in Kosovo. He had the authority over all Pristina Corps
25 members and the power to plan VJ activities and operations in Kosovo,
Page 462
1 Volume III, paragraph 905 [sic]. He is akin to Krstic, a commander who
2 permitted troops and resources under his command to assist in crimes, who
3 was recognised by the Perisic appeal judgement as a proximity aider and
4 abettor, in footnote 100.
5 Indeed, the Perisic Appeals Chamber placed great importance on
6 the fact that Perisic had no de jure and de facto command over the VRS in
7 Bosnia to establish Perisic's remoteness, paragraphs 42 and --
8 paragraphs 42 and 46.
9 Second, the Perisic appeal judgement, paragraph 38, held that
10 proximity is established when the accused is physically present during
11 the planning or commission of a crime. Lazarevic was physically present
12 and significantly contributed to the planning and execution of the joint
13 operations which cleared whole villages of Albanian civilians. The
14 period from January to March 1999 was devoted to planning of joint VJ-MUP
15 operations, Volume I, paragraph 1017. Lazarevic worked closely with
16 Pavkovic on these plans and the resultant Joint Command Orders, Volume I,
17 paragraphs 1034 -- sorry, 1037 to 1038. The campaign to forcibly expel
18 the Kosovo Albanian population was carried out through these joint
19 operations.
20 General Lazarevic also issued at least 16 Joint Command orders
21 between March and April 1999. I will provide examples which show how
22 these orders, joint orders, were implemented -- and implemented the
23 common criminal plan to forcibly expel Kosovo Albanians. As the
24 Trial Chamber found, several of those orders correspond to crime sites in
25 the indictment, Volume I, paragraphs 1122 and paragraph 1123.
Page 463
1 Moreover, General Lazarevic was present on the ground "on the
2 front line of the action" as he put it and quoted in Volume III,
3 paragraph 924. He regularly visited and encouraged troops before and
4 after joint operations that he planned and commanded and which were
5 implemented with excessive force, targeting whole villages of civilians
6 and driving out the Kosovo Albanian residents. He was with Pavkovic
7 "most of the time," Volume III, paragraph 838. He is akin to Brdjanin
8 and Simic about -- be it civilian leaders in their region and their
9 municipality respectively, whom the Perisic Appeals Chamber also
10 recognised as proximity aiders and abettors in footnote 100.
11 The Trial Chamber, therefore, did not have to make specific
12 findings regarding the specific direction element of the actus reus of
13 aiding and abetting under the Perisic appeal judgement
14 paragraph 37 [sic].
15 And in fact, given Lazarevic's proximity and intimate involvement
16 in the planning and execution of these joint operations, you can see that
17 the Trial Chamber's findings regarding General Lazarevic's contributions
18 implicitly included specific direction. The Trial Chamber noted "the
19 political and military leadership of the FRY and Serbia ... treated the
20 Kosovo Albanian population in its entirety as enemies of the state,
21 despite the fact that the KLA formed only a very small part of that
22 population," Volume III, paragraph 91. The joint VJ-MUP operations made
23 no distinction between the KLA and the Kosovo Albanian population. Two
24 examples, the joint VJ-MUP operations in Orahovac and Reka valley
25 illustrate that Lazarevic's contributions were directed to operations
Page 464
1 which were planned and executed to clear whole villages and areas of
2 Kosovo Albanians.
3 Orahovac is in the south-west of Kosovo. One of the villages
4 targeted in the Orahovac operation was Celine village. In March 1999,
5 Celine village consisted of around 250 homes. It was situated not far
6 from the Djakovica forward command post, Volume II, paragraphs 303, 333
7 to 335. It was explicitly mentioned and targeted by Lazarevic's
8 Joint Command order dated the 23rd of March, 1999, Volume II,
9 paragraph 296.
10 General Lazarevic ordered the 549th Motorised Brigade to deploy
11 at a line, and together with the MUP attack, break up, and destroy the
12 KLA in Celine and other villages. General Lazarevic's order went down
13 the chain of command. The 549th motorised Brigade the same day ordered
14 its units to cut off and destroy the KLA in the village of Celine,
15 paragraph 297 of Volume II.
16 There was, however, little or no KLA presence or threat in this
17 village, Volume II, paragraph 304. And in reality these orders were
18 orders for the attack on the Kosovo Albanian population in Celine, as the
19 findings regarding the attack clearly shows.
20 From the early morning of the 25th of March, Celine village was
21 surrounded by VJ tanks, armoured vehicles, and armoured personnel
22 carriers. Between 5.00 and 5.30 a.m., the VJ began shelling the village
23 and continued to do so on and off until about 9.00 p.m. at night. A day
24 of shelling of 200 homes. VJ soldiers and MUP forces entered the
25 village. Their operations were co-ordinated. The soldiers had hand-held
Page 465
1 radios and they were given orders through these radios, Volume II,
2 paragraphs 310 to 314.
3 The VJ forces and MUP forces looted and torched the village, also
4 setting fire to the mosque. They set up manned points around the village
5 and shots were fired during the night to scare the villagers, Volume II,
6 paragraph 311. The forces went house to house conducting searches and
7 pulling out everyone they found. Some of those found were murdered,
8 including women and children, Volume II, paragraphs 315, 321, 329 to 335.
9 A large group of civilians were found hiding in the woods by
10 policemen. The men were separated from the women and children.
11 Policemen took their possessions and identification guards. Their
12 identification cards were thrown into a pile and burned. The groups were
13 made to walk through the village towards Prizren at gunpoint. Later
14 these civilians were put on trucks, driven to the border, where they were
15 forced to walk to Albania, Volume II, paragraphs 323 to 325 and 334.
16 Following the operations, reports were sent up the chain of
17 command. For example, Prosecution Exhibit P2019 which confirms that VJ
18 forces "blocked and cleansed" Celine, Volume II, paragraph 364 and also
19 paragraphs 301 and Volume III, paragraph 857.
20 The operation was planned, ordered, and was reported back as
21 implemented in accordance with those plans and orders.
22 Despite the large number of civilians killed in this joint
23 operation as set out in Volume II, paragraph 335, 381 and 382 and 433,
24 and the massive number of Albanians who fled in fear or were ordered
25 across the border which General Lazarevic knew, Volume III,
Page 466
1 paragraph 849, no one was prosecuted as a result, Volume III,
2 paragraph 864 to 869. And the same soldiers were used again in future
3 operations. Inevitably the same pattern repeated over and over and over
4 again.
5 For example, units of the 349th [sic] Motorised Brigade one month
6 later participated in the Reka Valley Operation during which the VJ and
7 the MUP swept through the valley expelling all Albanians. This is my
8 second example. Sorry, and I seem to have misspoken, it was units of the
9 549th Motorised Brigade who participated in the operation again.
10 Both Witnesses Peraj and Kotur were VJ soldiers provided evidence
11 of meetings to organise and co-ordinate the operation to cleanse
12 Reka Valley. Both spoke of receiving oral orders for the operation,
13 Volume II, paragraph 600 -- no, sorry, paragraph 169 and 173. In
14 addition, Witnesses K90 and K73, both again VJ soldiers, also described
15 receiving oral orders to cleanse the Reka Valley by expelling
16 Kosovo Albanians, Volume II, paragraph 176 and 230.
17 And, Your Honours, this morning my learned friends addressed the
18 evidence of witness -- of both these witnesses, K90 and K73. Contrary to
19 my learned friends' submissions, the issues that were raised in relation
20 to K90, namely, the allegation that he changed his testimony, was
21 specifically dealt with by the Trial Chamber. The Trial Chamber found
22 that he tried to minimise his evidence and explain -- gave reasons why it
23 came to the conclusions that it did too -- that it did. My learned
24 colleagues have not shown that those findings were unreasonable; it has
25 just invited Your Honours to accept its interpretation of the evidence.
Page 467
1 And I will refer Your Honours to Volume II, paragraph 34 [sic] and
2 paragraph 133 -- sorry, 53, where these issues -- where the issues
3 relating to K90 are discussed.
4 And contrary to the submissions made this morning, K73 did speak
5 of orders to cleanse the -- cleanse areas of Kosovo Albanians, and the
6 reasons for those findings are clearly set out in the judgement at
7 Volume II, paragraph 176.
8 Your Honours, during this operation, VJ and the MUP swept down
9 the Reka Valley from north to south in two days, terrorising and driving
10 out all of the civilian population as they went. And, Your Honours --
11 Your Honours, on your screen is now Prosecution Exhibit P326. It was
12 used with several witnesses. This is a one that was tendered through
13 Witness Nike Peraj. As Your Honours can see, this was a joint operation.
14 It had the flanks -- on the flanks of the valley were VJ positions and
15 MUP positions. The operation took place right in front of the VJ
16 Joint Command position -- joint -- sorry, forward command post. There
17 was a MUP command post. And groups, units, of VJ soldiers and MUP went
18 down through the valley in the course of two days. And on the map you
19 can see the approximate line where the operation stopped on the
20 27th of April, 1999, and then continued on the 28th, forcing civilians in
21 front of it down through the valley.
22 On the first day, K73's unit "expelled hundreds of
23 Kosovo Albanians and set their homes on fire," Volume II, paragraph 229.
24 VJ and the MUP -- VJ and MUP forces surrounded villages, ordering women
25 to leave and go to Albania, and then shot the men and boys. Their homes
Page 468
1 were burnt down. And at VJ and MUP check-points set up at the southern
2 end of the valley, any remaining men were separated out and the women and
3 children had their identification cards seized before being seized --
4 excuse me, before being forced to go to Albania under threat of death,
5 paragraph 230.
6 And Your Honours can see, as I mentioned, the check-points, for
7 example, that I mentioned circled on this map and the red lines as
8 indicated, indicate two columns of refugees that are described in the --
9 of Kosovo Albanians that are described in the evidence in the
10 [indiscernible].
11 These all-inclusive clearances took place despite the fact that
12 there was no significant KLA presence there, Volume II, paragraph 230.
13 Four VJ soldiers involved gave evidence that they were under orders to
14 expel the Kosovo Albanian civilian population from the valley, discussed
15 in Volume II at paragraphs 169, 173, 176, and 230.
16 Witness K33's [sic] testimony quoted at Volume II, paragraph
17 1172, confirmed that what his order required him to do in this joint
18 operation and what -- and that it was not to target the KLA. And I once
19 again need to correct myself - I apologise, Your Honours - the witness is
20 Witness K73.
21 The instructions that K73 had received he set out as being:
22 "... we expelled them all from the baby in the cradle to the
23 elderly people in wheelchairs."
24 General Lazarevic visited the 125th Motorised Brigade on the
25 29th of April, 1999, immediately after their involvement with the
Page 469
1 Reka Valley operation. Zivanovic reported to Lazarevic on the operation,
2 Volume III, paragraph 842 and 856. Lazarevic took no measures against
3 the VJ forces involved in the comprehensive forcible expulsions in
4 Reka Valley. No one was prosecuted for these events, Volume III,
5 paragraph 870. And again, after the Reka Valley operation, joint
6 operations continued unchanged and unhindered. For example, the VJ-MUP
7 joint action attack on the village of Dubrava in May 1999 that followed
8 the same pattern. The villagers fled in fear or were killed, including a
9 female and a child, Volume II, paragraph 1141 and 1149.
10 The operations in Orahovac and Reka Valley are but two examples
11 which illustrate how, in fact, joint operations by the VJ and MUP were
12 designed to attack the Kosovo Albanian population. Volume II is replete
13 with other examples covering 13 municipalities all over Kosovo.
14 General Lazarevic's substantial assistance, encouragement, and
15 moral support was directed at and related specifically to these joint
16 operations, which treated the whole Kosovo Albanian population as the
17 enemy. When Lazarevic planned and executed these operations, when he
18 sent his troops and weapons to areas where there was little or no KLA
19 presence, when he inspected the troops in the field who had just carried
20 out forcible expulsions, when he failed to take measures specifically
21 against forcible displacements, paragraph 925 of Volume III, there was no
22 way he could have thought that he was assisting legitimate warfare. He
23 knew his assistance was directed and substantially facilitated the
24 campaign of forcible expulsions.
25 For these reasons the Appeals Chamber should not accept
Page 470
1 General Lazarevic's argument that he only contributed to the war efforts
2 of his country. Clearly, as the VJ commander in the field his
3 contributions were significantly directed to assist in the commission of
4 crimes that he was convicted of. Such was Lazarevic's intimate and
5 protracted involvement and proximity that there was a direct, close, and
6 culpable link between his contributions and the crimes.
7 Your Honours, the -- my learned colleagues this morning suggested
8 that General Lazarevic was merely carrying out his duties. I would note
9 that in the Blagojevic appeal judgement at paragraph 800 -- 189, the
10 Appeals Chamber specifically held that when somebody knowingly
11 contributes to the commission of a crime, the fact that this is done
12 in -- pursuant to a duty does not alleviate that person of
13 responsibility.
14 I need, maybe, to correct one thing that I said this morning
15 about paragraph -- the submission by my learned colleague regarding
16 paragraph 906 in the judgement. I may have said -- in Volume III. I may
17 have said that there was a finding of intent in that paragraph. That is
18 incorrect. What it was is it said that General Lazarevic was aware of
19 acts of violence and expulsions. And also, the assessment of K90's
20 evidence is found in Volume II at paragraph 74 and not 34 as I said.
21 With those clarifications and unless I may assist Your Honours
22 any further, this would conclude the Prosecution's response to
23 General Lazarevic's appeal and the questions put by Your Honours before
24 the hearing. For further issues that I have not addressed today, I refer
25 Your Honours to the detailed responses in the Prosecution's response
Page 471
1 brief to General Lazarevic's appeal.
2 JUDGE LIU: Thank you very much.
3 Any response?
4 MR. BAKRAC: [Interpretation] Yes, Your Honour, with your leave.
5 My learned friend Mr. Marcussen was dealing with the
6 jurisprudence of the Tribunal for a good part of his address and also the
7 legal practice relating to a specific issue, the issue of specific
8 direction and the requirement that it be part of the actus reus of the
9 accused for aiding and abetting or for -- or part of the mens rea of the
10 accused. Of course it is very difficult immediately after the address
11 when my learned friend Mr. Marcussen quoted and cited precedents, it's
12 difficult to reply on one's feet after hearing such arguments. But
13 even -- despite that I'm still going to state my position on all of these
14 issues to a limited extent because of the requirement for me to provide
15 my reply immediately after the address by Mr. Marcussen.
16 It seems to me and perhaps I'm wrong, I apologise, or perhaps it
17 just sounds like that, that the practice of the
18 International Criminal Tribunal and customary law on the matter of
19 specific direction simply is a singular thing and the appeals judgement
20 in the Perisic case deviates from that. If this is the position, I think
21 that this is what can be concluded from the address by Mr. Marcussen and
22 I cannot agree with that. The judgement of the Appeals Chamber in the
23 Perisic case is not the only such judgement which treats this matter in
24 the way it does. If you permit me just briefly, I am going to deal with
25 examples that my learned friend Mr. Marcussen did not mention. On
Page 472
1 several occasions the Appeals Chamber defined the actus reus for aiding
2 and abetting as acts specifically directed towards the aiding,
3 encouragement, or providing moral support to the principal perpetrators
4 of a crime which have a significant effect on the execution of the crime.
5 When I say this, I refer to the to the Tadic appeals judgement,
6 paragraph 229; the Vasiljevic appeals judgement, paragraph 102; the
7 Blagojevic appeals judgement, paragraph 127; the Kvocka appeals
8 judgement, paragraph 89; the Blaskic appeals judgement, paragraph 45; the
9 Rukundo appeals judgement paragraph 52 -- I apologise.
10 I'm now moving to an overview of the jurisprudence of the
11 Tribunal where there is a consistent approach by the Appeals Chambers on
12 this particular standard. First of all, this standard for specific
13 direction was articulated for the first time in the Tadic appeals
14 judgement, but that concept, the concept of specific direction, continues
15 to be a part of the actus reus arguments for aiding and abetting, and it
16 can be found in other judgements as well. Other than that, the
17 International Criminal Court -- I would also like to draw the attention
18 of the Appeals Chamber to the Rukundo judgement -- appeals judgement,
19 paragraph 52, which also deals with specific direction; then
20 Kalimanzira appeals judgement, paragraphs 74 and 76 and 86 -- 74 and 86;
21 Muguniya [phoen] - I apologise if I'm mispronouncing the names - this is
22 the appeals judgement, paragraph 79; Seromba, appeals judgement,
23 paragraph 47; Nahimana appeals judgement, paragraph 482; and the
24 Ntakirutimana appeals judgement, paragraph 530. Again, I apologise if I
25 mispronounce the names.
Page 473
1 So there are numerous judgements by Appeals Chambers which deal
2 with the issue of specific direction and which treat this particular
3 area.
4 My learned friend, Mr. Marcussen, tried to simplify one of the
5 requisite conditions with regard to the remoteness of the perpetrator,
6 suggesting that any perpetrator who is remote from the site of the
7 commission of a crime would be exculpated from responsibility. I believe
8 that this is quite a simplification of that position. With all due
9 respect to Mr. Marcussen, remoteness is one of the elements that has to
10 be established. It's quite clear that somebody who is remote from the
11 place of commission of a crime can fulfil the requisite criteria for
12 actus reus and for mens rea for the crime of aiding and abetting.
13 However, it is necessary to establish all the other elements of
14 actus reus and mens rea. Simply, the application of this principle would
15 not have any consequences in terms of the perpetrators who just by the
16 nature of the fact that they are remote from the scene of the crime would
17 be exculpated on the basis of that. My learned friend Mr. Marcussen even
18 said that -- I apologise, Your Honours. As for the jurisprudence
19 regarding the principle of specific direction, with all due respect, I
20 believe that my learned friend Mr. Marcussen did not articulate adequate
21 arguments in view of the fact that this problem has been considered to a
22 large extent by international tribunals and that the concept is known in
23 international customary and humanitarian law and it would need to be
24 applied in situations of crimes which are specifically the subject of
25 review by this Appeals Chamber.
Page 474
1 Furthermore, my colleague Mr. Marcussen also referred to the fact
2 that in our oral submissions we referred to the question of the standard
3 of the objective or goal of mens rea and referring to the
4 Rome Statute Article 25(3)(c). The Defence believes that it did not
5 overstep the grounds of appeal because one of the grounds of appeal is
6 the erroneous finding by the Trial Chamber of the mens rea of the accused
7 Lazarevic in relation to aiding and abetting of the crime of deportation
8 and forcible displacement. The standard of the goal or purpose was
9 applied also in some other judgements, for example, of the transitional
10 administration of the United Nations in the year 2000 which constitutes a
11 new practice and I think that it was completely justified as well, also
12 with respect to the Defence referring to this element of the mens rea and
13 that this is also in the interest of justice and does not exceed the
14 bounds of what we refer to as the ground of appeal of the erroneous
15 findings of the Trial Chamber in relation to the mens rea for this type
16 of criminal act which we refer to in our appeal brief.
17 Today at the very beginning of his address, my learned friend
18 Mr. Marcussen said that my colleague Mr. Cepic when -- actually, he
19 responded to our grounds of appeal. He said that we cited evidence which
20 is not linked to the relevant parts and he cited the example of Srbica,
21 giving dates from April and March 1999. And that for that reason we made
22 a mistake as to the relevant time-period of these events. My colleague
23 Mr. Cepic presented a clear contradiction precisely for the relevant
24 period of the indictment when we're talking about Volume III,
25 paragraph 905 of the judgement, citing an example for the
Page 475
1 28th of March, 1999, and the area of Srbica. So we hold that this
2 argument by the Prosecutor does not stand. All the other presented
3 evidence refer to the relevant period. Other than that, the Prosecution
4 did not provide any other evidence to substantiate his allegations
5 regarding the disciplinary measures and acts taken to shed light on the
6 crimes. Here we presented numerous direct evidence before you which
7 would be difficult to find in any other case before this Tribunal,
8 indicating that General Lazarevic did everything in his power so that all
9 alleged perpetrated crimes by members of the VJ would be thoroughly
10 investigated and processed. The responsibility, as we mentioned, for
11 further processing lay in the hands of the judicial organs so that all of
12 this would lead to the reasonable conclusion that General Lazarevic in
13 everything acted in accordance with the law and the constitution.
14 When one takes measures to process the perpetrators of a criminal
15 act and when this processing is supposed to be undertaken by the judicial
16 organs, then the assertion by my friend Mr. Marcussen is superfluous that
17 the measures provided for under customary law were not applied by
18 General Lazarevic.
19 Your Honours, my colleague Mr. Marcussen stated also that
20 General Lazarevic was responsible also because he knew about the crimes
21 which were committed in 1998. He knew about the mass displacements and
22 forcible displacements in 1998, knew that members of the
23 Army of Yugoslavia which he allegedly used later in 1999 frequently
24 committed crimes which had, as a consequence, a significant or
25 substantial displacement of the population. These assertions absolutely
Page 476
1 do not stand. I am just going to draw your attention to a number of
2 Prosecution witnesses, foreign observers, whose mission it was in 1998
3 specifically to observe and monitor the situation in the field. So
4 Prosecution witness Mr. Ciaglinski on page 6910 of the transcript said
5 that the actions of the VJ in the border belt area were carried out
6 correctly. I remind that the border belt area is the area where
7 General Lazarevic was in 1998 as the Chief of Staff at the time of the
8 Pristina Corps.
9 Witness Ciaglinski said that he had the opportunity to read
10 numerous reports drafted by members of his mission, and these reports did
11 not contain any remarks regarding the conduct of the army. And you can
12 find this on transcript page 6894 to 6895. In January 1999
13 Witness Ciaglinski testified that he had the opportunity to speak with
14 local Albanians in the Junik border belt village, who personally told him
15 that they did not have any problems with members of the army. And you
16 can find this on transcript page 6896. Witness Ciaglinski concludes at
17 the end that -- going back a little bit:
18 "When I talk about the VJ certainly during most of my time in
19 Kosovo the VJ behaved correctly. It was not using excessive force until
20 the last few weeks of March 1999."
21 This is on transcript page 6929.
22 Prosecution Witness Maisonneuve said that his experience was that
23 the Army of Yugoslavia acted very professionally.
24 Witness Shaun Byrnes, a member of the American mission, when
25 asked about excessive use of force, bombing, and the torching of houses,
Page 477
1 some cases in 1998, said that his clear impression was and that he could
2 state that quite clearly was that the Army of Yugoslavia was not involved
3 in such activity. He also says concerning the time I spent in Kosovo and
4 as far as 1998 is concerned, that is August and all of September, he
5 personally never saw the Army of Yugoslavia being involved in that kind
6 of activity, nor did he receive any such information from his
7 subordinates; 12150 is the transcript page reference.
8 There is also numerous evidence that indicates that there is no
9 reliable evidence to prove beyond reasonable doubt that General Lazarevic
10 in 1998 as Chief of Staff of the Pristina Corps who was at the forward
11 command post near the border with Albania had any knowledge about
12 possible individual cases of excessive use of force in 1998. There is no
13 evidence that General Lazarevic knew or had to know about
14 Resolution 1299, that in October 1998 cautioned that FRY forces were
15 using force. What may have been relevant for General Lazarevic was,
16 first of all, the assessment of General Perisic. And the Prosecution
17 says that this is a renegade general who opposed Milosevic. 3D757 is the
18 document where he pointed out on the 29th of September, 1998, that in
19 actions in Kosovo the Army of Yugoslavia was carrying out its obligations
20 in fighting against terrorism in a professional manner. He added that
21 the Army of Yugoslavia, the Army of Yugoslavia through the Pristina
22 Corps, took all necessary measures, all necessary measures, to protect
23 the country.
24 Your Honours, when my learned friend Mr. Marcussen said that
25 General Lazarevic in 1999 used the army, or rather, the troops that did
Page 478
1 what I read out to you in 1998 and what the foreign observers assessed as
2 well, he made a major mistake. In our brief we proffered to the Chamber
3 ample evidence showing that in 1999 when the aggression was supposed to
4 start, the aggression by NATO forces against the FRY, the General Staff
5 of the Army of Yugoslavia reached a decision on manning the units of the
6 Pristina Corps. I wish to note that a Prosecution witness,
7 Colonel Zyrapi, who was the Chief of Staff of the KLA, said himself that
8 in the beginning of the NATO bombing the KLA had a personnel level that
9 was twice as high as the Pristina Corps. The Pristina Corps had 10.000
10 members at the time. As their personnel levels were raised by the
11 General Staff of the Army of Yugoslavia, it became 50.000. So this fact
12 alone cannot support the position of the Prosecution that
13 General Lazarevic used the forces that he knew committed crimes in 1998
14 in 1999. First of all, he could not have done such a thing in terms of
15 the position he held; and secondly, in 1999 when the NATO campaign
16 started the General Staff of the Army of Yugoslavia - and we indicated
17 that in detail in our appeal - increased personnel levels in the
18 Pristina Corps many-fold at that.
19 My learned friend Mr. Marcussen, my learned friend Mr. Marcussen,
20 also at the end of his remarks mentioned an incident in the village of
21 Celine, and he referred to the alleged participation of the
22 Army of Yugoslavia in the commission of crimes. In our appeal,
23 paragraph 252, we analyse in detail the evidence related to this
24 incident. I would briefly like to draw the attention of the
25 Appeals Chamber that Witness Bislim Zyrapi, Chief of Staff of the KLA,
Page 479
1 confirmed that the thrust of the Serb forces' attack was against the KLA
2 and in the village of Pirane which is the neighbouring village of Celine.
3 I quote:
4 "From Pirane to the Djakovica, the Djakovica cross-roads and
5 Bela Crkva, the attack started in the early morning hours of the
6 25th of March, 1999, and there was combat activity. This is what I wish
7 to point out. Before the artillery attack started" -- correction.
8 "After the artillery attack started, we wanted to move the population
9 from that area for reasons of safety. The forces of the KLA together
10 with the population started withdrawing."
11 THE INTERPRETER: Interpreter's note: We do not have the
12 original document.
13 MR. BAKRAC: [Interpretation] So the Chief of Staff of the KLA as
14 regards this incident - and my learned friend says that it was aimed only
15 against the civilian population - claims that it was KLA forces that were
16 there and that they were moving along with the civilian population and
17 were mixed among the civilian population. I hope that I have a bit more
18 time, five minutes.
19 The Defence --
20 JUDGE LIU: Well, I think you have to finish your reply in five
21 minutes. So we adjourn at five minutes to 4.00.
22 MR. BAKRAC: [Interpretation] Thank you. Thank you, Your Honour.
23 I was afraid that I had stolen a minute or two by accident, that is.
24 So the very last argument that was presented by my learned friend
25 Mr. Marcussen was the operation in the river valley and with regard to
Page 480
1 that the Defence provides a detailed analysis of everything that
2 happened. Within the time that I still have left, I would just like to
3 refer to what my colleague Mr. Marcussen pointed out. He says that after
4 this operation General Lazarevic went to the 125th Motorised Brigade that
5 was partly only under blockade in terms of this operation and he says
6 that Commander Zivanovic reported to him but General Lazarevic did not
7 take any steps to punish perpetrators of crimes.
8 In the case file you will find the report of Commander Zivanovic
9 and you will see that in the report there is no indication whatsoever of
10 the 125th Motorised Brigade participating in the crime or that any crime
11 had happened. So General Lazarevic did not have any information from his
12 superior officer that in the operation of blockade in which the
13 125th Brigade participated that any crimes had been committed, that is,
14 and therefore he could not have taken any kind of action.
15 Finally, my colleague Mr. Marcussen says that General Lazarevic
16 closely co-operated in elaborating plans with Commander Pavkovic. Can
17 you imagine a single army anywhere in the world where the command of the
18 Pristina Corps -- rather, any corps commander would not have a
19 co-operation with the army commander, where the army commander would not
20 co-operate with the Chief of General Staff. That is quite logical. The
21 question is just which part of that co-operation would be illegal,
22 anti-constitutional, and which part of that co-operation would be aimed
23 against civilian persons? That is an answer that the trial judgement
24 could not respond to. That is something that the Prosecution could not
25 indicate to us in their reply. Is it sufficient to say merely that
Page 481
1 General Lazarevic closely co-operated with General Pavkovic? Well, of
2 course. General Pavkovic was commander of the 3rd Army and
3 General Lazarevic was his subordinate in the chain of command. He was
4 the corps commander there. Military hierarchy, per se, is it a crime?
5 Is waging war, per se, a crime? I think that the Prosecution in their
6 reply to our appeal did not assist you in finding arguments in the trial
7 judgement that would indicate that the only reasonable conclusion would
8 be, if looking at all the facts together, that General Lazarevic
9 supported and aided and abetted in the crimes of forcible transfer.
10 Thank you, Your Honours.
11 JUDGE LIU: Thank you. Thank you very much, Mr. Bakrac.
12 Yes --
13 MR. CEPIC: I'm sorry, Your Honour. Just one correction in
14 transcript. Page 24 [sic], line 15, instead of word "superior" it has to
15 be "subordinated."
16 JUDGE LIU: Thank you.
17 MR. CEPIC: Thank you, Your Honour.
18 JUDGE LIU: Thank you very much.
19 Well, I think that's all for today, and that concludes today's
20 hearing. We adjourn these proceedings until tomorrow morning at
21 9.30 a.m.
22 --- Whereupon the hearing adjourned at 3.55 p.m.,
23 to be reconvened on Thursday, the 14th day of
24 March, 2013, at 9.30 a.m.
25