Tribunal Criminal Tribunal for the Former Yugoslavia

Page 482

 1                           Thursday, 14 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             Madam Registrar, would you please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  This is case

 9     IT-05-87-A, the Prosecutor versus Nikola Sainovic, Nebojsa Pavkovic,

10     Vladimir Lazarevic, and Sreten Lukic.

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.  May I

14     now have the appearances of the parties.  The Prosecution first.

15             MR. KREMER:  Good morning, Mr. President, Your Honours.  The

16     Prosecution counsel this morning are myself, joined by Daniela Kravetz

17     and Mr. Kyle Wood, assisting us again is Mr. Colin Nawrot, our

18     case manager.  Thank you.

19             JUDGE LIU:  Thank you very much.

20             And now the Defence counsel, please.

21             MR. FILA: [Interpretation] Good morning, Mr. President.  Good

22     morning, Your Honours.  My name is Toma Fila, and together with

23     Mr. Petrovic I represent the Defence of Nikola Sainovic.  Thank you.

24             JUDGE LIU:  Thank you.

25             MR. ACKERMAN:  Good morning, Your Honours.  I'm John Ackerman and


Page 483

 1     along with Aleksander Aleksic we represent General Pavkovic.

 2             JUDGE LIU:  Thank you.

 3             MR. BAKRAC: [Interpretation] Good morning, Your Honours.  I am

 4     Mihajlo Bakrac.  For the Defence of General Lazarevic I am here with my

 5     colleague, Mr. Cepic, and our intern, Mr. Milan Petrovic.

 6             JUDGE LIU:  Thank you.

 7             MR. LUKIC:  Good morning, Your Honours.  Branko Lukic and

 8     Dan Ivetic on behalf of Mr. Lukic.

 9             JUDGE LIU:  Thank you very much.  Today we will hear the

10     submissions from the counsel for Mr. Lukic.  Yes.

11             MR. LUKIC:  Good morning, honoured members of panel.  My name is

12     again Branko Lukic with counsel for Mr. Sreten Lukic.  By way of

13     introduction I want to let you know that we will be devoting time to

14     focus our presentation to the five questions that Your Honours posed to

15     us, and we will incorporate them into discussions about our appeal where

16     appropriate.  I wish to advise that we will be dealing with all five

17     questions.  First of all, I want to point out this judgement convicted

18     Lukic and gave him a harsh sentence of 22 years which is astounding when

19     the same judgement clears him of responsibility for many parts of the

20     Prosecution case against him.

21             In book III, paragraph 85, he is shown not to be specially

22     promoted as Milosevic's inner circle.

23             In book III, paragraph 1072, he is shown not to have been

24     involved in violations of the October Accords.

25             In book III, 1015, it is shown that he is not in charge of the

Page 484

 1     work of the RDB, state security part of MUP, even though the main

 2     document, P1505, cited by the Chamber and relied upon throughout the

 3     judgement lists RDB staff as being subordinated to him.

 4             In book III, 1075, it is shown that Lukic did not have authority

 5     over border police stations.

 6             In book III, 1051, it is shown that Lukic did not replace

 7     Obrad Stevanovic or Vlastimir Djordjevic or any of the existing police

 8     hierarchy.

 9             In book III, 1113, it is shown that Lukic was not involved in the

10     clandestine attempt to transport and hide corpses from Kosovo.

11             Book III, 1021, it is confirmed that Lukic did not participate in

12     the drafting of the global plan for the suppression of terrorism.

13             In book III, 1049, it is concluded that Lukic could not commence

14     or proceed with disciplinary actions against MUP members.

15             In book III, 1122, it is shown that there were no volunteers

16     operating within the MUP.

17             In addition to these factors which the Trial Chamber here found,

18     we wish to direct your attention to the facts that there were three main

19     phases in 1998 and 1999 that were different from each other.  The first

20     phase was the one of anti-terrorist actions in 1998.  During that period,

21     both head of the public security and Deputy Minister Djordjevic as well

22     as assistant minister and PJP commander Obrad Stevanovic were in Kosovo

23     the entire time.  After that is the phase of the signed peace accords in

24     1998 and 1999.  With the NATO bombings the third phase begins, in which

25     again the factual and legal framework changed.  The Prosecution and the

Page 485

 1     judgement do not recognise these different phases which then leads to

 2     improper legal conclusions.  Everyone with logic would know that the war

 3     brings a new set of circumstances and laws into play.

 4             Further, during this period assistant minister Obrad Stevanovic,

 5     the PJP commander, came to Kosovo immediately before the NATO bombing

 6     with PJP units, and stayed there for the duration, signing the

 7     Kumanovo Agreement and was among the last policemen to leave Kosovo upon

 8     the withdrawal.

 9             Now I wish to address the first question you posed before turning

10     the podium over to my co-counsel, Mr. Ivetic.  The question was whether

11     there would be any effect on Lukic's appeal regarding his convictions

12     pursuant to JCE III if the Appeals Chamber were to accept the

13     Prosecution's argument that the Trial Chamber applied an incorrect

14     mens rea standard to JCE III liability.

15             Having in mind that this question has been addressed already by

16     all those that have gone before us, we will be brief.  We do not believe

17     that the resolution of the Prosecution appeal as to the mens rea standard

18     for JCE III affects our appeal.  We believe our client was wrongly

19     convicted under either standard and we believe the factual scenario under

20     the evidence supports an acquittal under both standards.

21             We submit that upon a review of our submissions hopefully

22     Your Honours will see that the judgement is full of errors and cannot

23     stand on its own.  It falls apart with any degree of scrutiny applied.

24     Such a judgement is unsafe and we believe your intervention is required

25     to prevent a serious miscarriage of justice.

Page 486

 1             And now I give the floor to my co-counsel.

 2             MR. IVETIC:  Good morning, Your Honours.  For the record, I am

 3     Dan Ivetic.

 4             Your Honours have posed a question about the evidence, if any,

 5     relating to Sreten Lukic's involvement in the disarming of the

 6     Kosovo Albanian population.  In this regard, it should be noted that in

 7     book III dealing with the individual responsibility of Mr. Lukic, the

 8     Trial Chamber fails to analyse the evidence as to this disarming.

 9     Rather, only in book III, paragraph 666, dealing with another appellant,

10     the Trial Chamber claims that the disarming process was in furtherance of

11     the aims of the JCE.  Further, at paragraph 668, the trial judgement

12     merely states that:

13             "The MUP undertook the task of disarming Kosovo Albanians in the

14     interior of the province, Pavkovic ordered that the Pristina Corps carry

15     this out in the border belt."

16             There is no citation to the evidence or any discussion of the

17     evidence on which this assertion as to the MUP is based.  Apart from

18     P1468, notes of the meeting where it is suggested that the MUP should

19     undertake this task and Lukic's response is recorded in English as mostly

20     illegible.  Surely this is not evidence to sustain a conviction.  There

21     is no inference that the disarming suggested at this meeting was ever

22     undertaken or that it involved Lukic.

23             Further, the B/C/S original confirms that Lukic's response dealt

24     solely with voluntary surrender of arms.

25             Despite not discussing any evidence as to Lukic, in

Page 487

 1     paragraph 1121 of book III, the Chamber concludes:

 2             "In 1998 Lukic was actively involved in ... the disarming of the

 3     Kosovo Albanian population in villages and towns in the province."

 4             But again, the Chamber does not cite or discuss any evidence.  A

 5     look at the evidence, Your Honours, shows important distinctions must be

 6     made.

 7             As a starting point, we would ask that the Chamber focus on what

 8     type of disarming is at issue.  Long before the Kosovo conflict and

 9     certainly at least since 1992, there existed in Serbia, including the

10     province of Kosovo, a Law on Weapons and Ammunition, Article 33 of which

11     prohibited civilians from possessing illegal types of weapons and which

12     proscribed penalties for such possession.  This is in evidence at P1016,

13     page 119.

14             This law applied uniformly to the entirety of Serbia and cannot

15     be said to be discriminatory in nature.  Lukic cannot be said to have had

16     any role in the promulgation of this law, active or otherwise.

17     Your Honours, the law is reasonable and it makes sense.  I dare say that

18     most countries have a similar law and most of them task the police with

19     enforcing it.

20             As to this specific law, the minister of internal affairs set

21     forth how this law was to be enforced and implemented, not Sreten Lukic.

22     Indeed, the evidence shows that in 1996, long before the indictment

23     period, the minister gave an instruction on the work of internal organs

24     within the public security sector.  And this is P1239.  Section II of the

25     same at point 17 lists item 2:  Prevention and detection of abuses of

Page 488

 1     weapons, the detection and seizure of arms held without permits.

 2             Also in evidence we see that the SUPs, or secretariats of the

 3     interior, across the whole of Serbia created plans for their functioning

 4     every year, including tasks aimed at enforcing this law, among others.

 5     An example of one such plan is P1074.  As is clear from this,

 6     Sreten Lukic had no role in either enacting the law, promulgating

 7     instructions on its enforcement, nor in planning how the SUPs were to

 8     police the law.

 9             Now, if we turn to the time-period of 1998, we will see at that

10     time the evidence shows that as part of the effort to reduce tensions an

11     amnesty had been declared by the government organs of both Serbia and the

12     provincial organs of Kosovo to call upon and allow citizens who had been

13     forced to take up illegal arms by the KLA to voluntarily surrender those

14     illegal arms without suffering the legal consequences that otherwise

15     would apply under the law.  The judgement only links this to the

16     testimony of Veljko Odalovic in paragraph 70 of book III, but the

17     evidence, namely P908, Article 5, item 3, demonstrates that this was

18     decreed by the National Assembly of Serbia in the last quarter of 1998

19     for everyone.

20             Again, there is no role of Lukic in promulgating this amnesty.

21             Now, the judgement has focused on reports that allegedly do not

22     mention that the weapons being collected by the MUP were illegal weapons

23     under this programme, at book III, paragraph 70.  A review of the

24     evidence demonstrates that P1198 and P1203 are the only such reports, and

25     both documents in pages 4 and 5 respectively talk of the MUP involvement

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 1     in taking custody only of weapons voluntarily surrendered by citizens.

 2     It is a reasonable conclusion under the facts that this was part of the

 3     amnesty and the law which the Trial Chamber does not exclude.

 4             Now, it stands to reason that police organs would be involved in

 5     securing custody of and documenting such illegal weapons that were

 6     voluntarily surrendered by citizens.  This is a normal task in any

 7     country.  Looking at what role Lukic played in all of this, we see that

 8     he is only reporting the statistics of numbers and locations of such

 9     weapons that were surrendered.  This can be seen from P1468, where we see

10     the direct references to weapons taken into custody by the MUP after they

11     were voluntarily surrendered by civilians at entries for 8 August 1998,

12     26 August 1998, 6 September 1998, 7 September 1998, 10 September 1998,

13     12 September 1998, 13 September 1998, and 14 September 1998.  All these

14     entries are merely Lukic reporting statistics of instances where a couple

15     of persons or groups voluntarily surrendered weapons of a few in number,

16     up to 200 in number.  Again, Lukic is neither promulgating the tasks nor

17     effectuating the surrender of illegal arms, but is merely reporting the

18     statistics as to persons who have voluntarily surrendered their arms to

19     the police.  Further, that these arms are illegal in nature can be seen

20     from the fact that they include even Armburst anti-tank launchers.  Thus,

21     the Trial Chamber's earlier finding that these voluntary collections were

22     not in reference to illegal arms is in error.

23             From such a limited involvement in a completely legal enterprise,

24     Lukic cannot be said to have the necessary mens rea to be assisting in

25     any criminal enterprise.  In this regard, not only was the voluntary

Page 490

 1     surrender of arms obligated by the law, it was supported by international

 2     peace initiatives.

 3             Specifically, UN Security Council Resolution 1160, dated

 4     31 March 1998 and in evidence as P455, identified the KLA as a terrorist

 5     organisation and prohibited the procurement of weapons by either

 6     individuals or other groups in Kosovo in order to stem terrorist

 7     activities.  This initiative cannot be said to be discriminatory.

 8     Further, it is dated two months before Lukic even came to Kosovo.

 9             As is evidenced by P1468 at page 43, Shaun Byrnes, the head of

10     the US KDOM mission, was involved in this legal process, keeping track of

11     the weapons and villages involved, asking for such statistics and

12     information from Lukic and being provided the same.  Thus, the

13     highest-ranking member of the international community in Kosovo was fully

14     apprised of and involved in the reporting by Lukic of the voluntary

15     surrender of weapons.  The voluntary surrender of arms was in the

16     interest of all persons and parties interested in pursuing peace in the

17     region.  This is the only participation of Lukic that can be inferred

18     from the evidence.  Given the involvement of the international community

19     in these efforts and the oversight of Mr. Byrnes in Lukic's reporting, it

20     is illogical and simply unsupportable under any reading of the evidence

21     to conclude that Lukic had knowledge of any criminal enterprise behind

22     these actions.

23             From this evidence it is inconceivable to conclude that Lukic was

24     engaged in any "disarming" of the Kosovo Albanian population with the

25     intent to further the criminal aims of any criminal enterprise.

Page 491

 1             In reaching such conclusions unsupported by the evidence, the

 2     Trial Chamber erred; and we therefore ask the assistance of this Chamber

 3     to correct those errors and render a just result.  Surely we do not want

 4     to send a message to the world that a policeman reporting statistics of

 5     voluntary illegal weapons surrendered that was proscribed by domestic

 6     law, supported by the UN Security Council and by international diplomats,

 7     should be guilty of a crime for the same.  Otherwise, we would have the

 8     absurd result that the citizen voluntarily surrendering arms is also

 9     guilty of the JCE, as are the members of the Security Council calling for

10     a conflicted area to turn over illegally held weapons.

11             At this time, we take the opportunity to address a related topic,

12     namely, the arming of the non-Albanian population.  In the judgement the

13     Chamber always links this activity with the process of disarming which we

14     have just discussed; that can be seen in book III, paragraphs 49, 72, 666

15     through 669, and at several other places.  But they are not the same.

16             Whereas the collection of voluntarily surrendered weapons dealt

17     with illegal weapons, the process of arming did not deal with illegal

18     weapons but rather was a process that was legal in nature and involved

19     the legitimate distribution of arms to reserve defence formations of the

20     state that were being activated in the light of an impending war.

21             The judgement itself concludes at book III, paragraph 56, that it

22     was unable to conclude whether such arming was illegal per se, but

23     considers that the primary issue is whether it was done upon ethnic

24     lines.  Again, any involvement in a legal activity in compliance with the

25     existing laws surely cannot be used as the sole basis to conclude that

Page 492

 1     one had criminal intent and knew of or supported a criminal enterprise

 2     behind these legal activities.  Further, the judgement's focus on the

 3     ethnic lines is curious given that the Chamber was shown and concluded

 4     that Kosovo Albanian citizens rejected participating in the work of

 5     official state organs.  We can see that from book III, paragraphs 225,

 6     226, and 297.  And based on the evidence the Chamber could see that any

 7     perceived co-operation with the state authorities by Kosovo Albanians was

 8     denounced as collaboration by the KLA and subjected such persons to

 9     reprisals by this criminal group including murders.  And the evidence of

10     that is discussed at paragraphs 537 through 543 of our appeal.

11             With such a factual background, any attempted distribution of

12     arms to any ethnic Albanian Yugoslav reservists would have been devoid of

13     logic.  This is an alternative meaning that the Trial Chamber ignored and

14     did so in error.

15             Although the judgement repeatedly talks of a secret arming

16     process - that can be seen in book III, paragraphs 52, 64, 72, 1121 -

17     there is no evidence that Lukic participated in any such secret process.

18     Indeed, the first and only time in the judgement where the moniker secret

19     is applied to Lukic's involvement is at book III, paragraph 1121, when it

20     is making conclusions as to his criminal responsibility.  The previous

21     paragraphs, 1060, 1067, 1071, talking about the evidence do not relate to

22     any secret arming of civilians but rather the arming of reserve police

23     formations, civil protection units and army reservists in accord with the

24     laws of the state.  The arming of defence formations must be understood

25     under the wider context of events at the time.  The KLA was increasing

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 1     the intensity of terrorist attacks at the time and it was becoming a

 2     possibility that NATO would attack Yugoslavia, making activation of the

 3     reserve defence formations logical and legal, without any connotation of

 4     any criminal enterprise.

 5             The Chamber failed to consider the evidence that the

 6     Supreme Defence Council issued an order 21 May 1998 for reservists to be

 7     armed - that's P1259 - and that Lukic had no role in the bringing of this

 8     decision which was brought by the highest organ of the state and which he

 9     was duty-bound to implement once Minister Stojiljkovic issued an

10     instruction to engage the reserve force of the police in June 1998.  And

11     we see that from the testimony of Cvetic at T.8169.  Such actions were in

12     accord with the Law of Defence, which is P985, and the Law on

13     Internal Affairs, which is P1737, Article 28, such that Lukic's

14     involvement in this public process could not be termed as either illegal

15     or nefarious.  Thus, the Trial Chamber erred in finding that the only

16     reasonable inference from the evidence was that Lukic knew of a criminal

17     intent behind the arming of reservists and that he shared the same.

18             Now I will address the third question posed by the Chamber to us

19     which asked if the actus reus and mens rea for a JCE member can be

20     fulfilled prior to the existence of the common purpose of the JCE.  In

21     short, Your Honours, our answer is no.  The jurisprudence of the Tribunal

22     is clear when it continuously affirms that the common purpose of a JCE

23     does not need to be previously formulated but can materialise

24     extemporaneously.  We see that from the Furundzija appeal judgement,

25     paragraph 119 --

Page 494

 1             THE INTERPRETER:  Could counsel kindly slow down, please.

 2             MR. IVETIC:  However, the logical caveat of this finding is that

 3     the materialisation of the common purpose, i.e., its revelation or

 4     surface to the public is not the same thing as its prior existence which

 5     remains a precondition to the existence of a JCE I.

 6             A person accused of participating in a JCE category I must act in

 7     the implementation of a common purpose through acts directed to the

 8     furthering of the same.  We see that from the Kvocka appeal judgement,

 9     paragraph 187, and the Vasiljevic appeal judgement, paragraph 102.

10             The Defence cannot accept that both actus reus and mens rea of a

11     JCE I could be fulfilled prior to the existence of the common purpose

12     because that would amount to accepting that a JCE I extends abusively to

13     any person who acted without any knowledge and intention to further

14     something that simply did not exist at the time that he acted.

15             If the Prosecution fails to provide evidence that can only be

16     interpreted by the Chamber as proving the existence of a common purpose

17     for a JCE, the Trial Chamber must not interpret other portions of

18     evidence for the purposes of constructing the existence of a criminal

19     purpose, since this would result in the Chamber erring in the

20     determination of facts unduly affecting the accused.

21             The Defence draws the attention of the Chamber to the findings of

22     the Appeals Chamber in the Gotovina appeals judgement when determining

23     that the Trial Chamber erred when finding the existence of a JCE I

24     through the interpretation of evidence regarding the planning phase of an

25     attack in light of subsequent events of the attack and its

Page 495

 1     characterisation by that Chamber as being unlawful in nature.  This is

 2     paragraph 93.  In that case, the Appeals Chamber addressed the error of

 3     the Trial Chamber and said considered outside this erroneous retroactive

 4     context, it was not reasonable to find that the only possible

 5     interpretation of the Brioni transcript involved a JCE to forcibly deport

 6     Serb civilians.  The Appeals Chamber highlighted many legitimate reasons

 7     civilians may leave a combat zone, including a lawful consensus in

 8     helping civilians leave an area of conflict for casualty reductions and

 9     legitimate military advantage and lawful combat operations.  The error in

10     Gotovina was remedied by acquittal.  It is respectfully submitted a

11     similar analysis is required here.

12             Moving along to the fourth question that Your Honours posed, you

13     asked under what circumstances the mens rea under JCE I for deportation

14     and forcible transfers may be inferred from the accused's knowledge of

15     crimes committed in 1998, including crimes other than deportation and

16     forcible transfers.

17             Our brief answer is that the mens rea cannot be inferred from

18     knowledge of other crimes in 1998 that are not the same as those in 1999

19     for which the appellant is convicted.  First I will address our legal

20     submission and then apply the relevant facts from the evidence to

21     demonstrate the error of such an approach, at least towards Mr. Lukic.

22             The jurisprudence of the Tribunal is clear on the fact that

23     members of the JCE I must share the same criminal intent - we can see

24     that from the Krnojelac appeal judgement, paragraph 84; the Vasiljevic

25     appeal judgement, paragraph 101 - and that the common plan was executed

Page 496

 1     with the intent to commit a particular crime.  We can see that from the

 2     Stakic appeals judgement, paragraph 65; the Vasiljevic Appeals Chamber

 3     judgement, paragraph 101, among others.

 4             In this sense the Defence believes that mere knowledge of

 5     previous crimes is not sufficient to infer the mens rea for JCE I, since

 6     this knowledge of forced transfer and deportations has not been proven to

 7     be the only reasonable conclusion for establishing criminal intent to

 8     pursue a common criminal goal.

 9             No weight was given to the fact that as a MUP officer, the

10     allegations of potential crimes being committed by known and unknown

11     perpetrators were part of Lukic's function as a policeman and only

12     require his attention if other organs do not seem to be investigating

13     them under the law.  The mere knowledge of unconfirmed crimes does not

14     necessarily lead to the conclusion that Lukic knew of the existence of a

15     criminal common purpose behind those crimes, that their commission

16     intended to further a criminal common purpose, or that he willingly

17     decided to join the same, sharing such a goal in the future.

18             Knowledge of other types of crimes that have no apparent

19     connection to the alleged Serb plan to control Kosovo through the

20     forcible removal of the Albanian population, such as murder and sexual

21     assaults, are commonly investigated as normal crimes by police personnel

22     around the world and do not show intent to pursue either a different

23     crime, like forcible removal, nor take part in furthering a criminal

24     policy of control.  This is especially true where the knowledge of the

25     accused is accompanied with assurances that the relevant authorities are

Page 497

 1     conducting investigations to preserve evidence, locate and apprehend

 2     perpetrators for prosecution.

 3             We believe that the knowledge of a policeman that certain crimes

 4     were committed cannot be the sole basis for concluding the mens rea has

 5     been fulfilled for a JCE, for if that were the case every policeman on

 6     the plant would ipso facto be guilty of a JCE just by virtue of doing his

 7     job as a policeman investigating crimes.

 8             In this instant case the evidence is clear that there was no

 9     mens rea that could be inferred from incidents and crimes in 1998 that

10     would lead to the sole reasonable conclusion that the crime of

11     deportation and forcible transfer as part of a JCE was underway or

12     intended by Lukic in 1999.

13             The sole instance of murder that was relied upon in the judgement

14     from 1998 as providing notice to the appellant was Gornje Obrinje, for

15     which in paragraph 1134 of book III the Chamber said that it was the key

16     evidence that Lukic knew that the police would commit crimes if it was

17     again utilised in 1999.

18             Not a single bit of evidence demonstrates that murder was

19     established in Gornje Obrinje or that Lukic, as a policeman, could

20     consider that murder had been established and the identity of

21     perpetrators had been established.  The Human Rights Watch publication on

22     Gornje Obrinje was only written in 1999 - and that's at paragraph 900 of

23     book I of the judgement - and there is no evidence it was sent to Lukic

24     before or during the war.  It likewise could not be considered as

25     establishing proof of a crime, but rather indications of what needed to

Page 498

 1     be checked out.  Pavkovic's report based on the unconfirmed story of his

 2     security organs, P1440, as to Gornje Obrinje was likewise internal to the

 3     VJ and not brought to the attention of Lukic.

 4             That which Lukic did know was demonstrated by the meeting

 5     evidenced at 6D803, which talked of the rumours of a crime at

 6     Gornje Obrinje and the difficulties encountered in trying to confirm the

 7     information and conduct an investigation.  From this meeting in October

 8     of 1998, we see that Lukic was informed by the state security about the

 9     Albanian press circulating sensationalised stories about Gornje Obrinje

10     which had been characterised by the state security as false propaganda.

11     Under the same scenario, President Milutinovic was acquitted.

12             As the police is concerned with hard evidence and substantive

13     investigations rather than mere rumours, it is important to look at what

14     was established as to Gornje Obrinje.  International diplomats trying to

15     investigate, like Jan Kickert, were unable to confirm the crime had

16     occurred.  Even the judgement at paragraph 910 of book I confirms that.

17     Kickert testified at trial of personal knowledge of the efforts to

18     perform an on-site investigation by the Serbian investigative judge;

19     that's in the same paragraph.  We had the evidence that the investigative

20     team could not perform the on-site investigation because of the threat of

21     attack by the KLA on the investigative team.  Witness Marinkovic at

22     transcript page 23526 talks about that.  She was the investigative judge

23     and she confirmed that the Serbian MUP tried to secure the site to assist

24     her investigation, but an investigation was prevented by threats from the

25     KLA.  Thus, there was no conclusion under the domestic law that a

Page 499

 1     criminal homicide had occurred.  Whether the deaths were due to foul

 2     play, whether the foul play was attributable to a known perpetrator, let

 3     alone whether the perpetrator was a member of the Serbian security

 4     forces, what was a professional and life-long police officer like Lukic

 5     supposed to conclude from this paucity of evidence?

 6             It should be noted that no Kosovo Verification Mission or KDOM

 7     witnesses confirmed that a crime had been established in Gornje Obrinje,

 8     not Shaun Byrnes, not Colonel Crosland, not General DZ, and not

 9     Colonel Ciaglinski.

10             Leaving Gornje Obrinje, let us turn to other events from 1998

11     analysed by the Trial Chamber.  The judgement analyses a total of nine

12     anti-terrorist actions conducted jointly by the police and the VJ in

13     1998, inclusive of Gornje Obrinje; this is at paragraphs 848 through 912

14     of book I of the judgement.

15             The Chamber in its analysis concluded that only in one out of the

16     nine operations was there any evidence of civilians being killed, and

17     that was Gornje Obrinje --

18             THE INTERPRETER:  Mr. Ivetic is kindly asked to slow down for

19     interpretation.  Thank you.

20             MR. IVETIC:  -- for which the paucity of the evidence had already

21     been discussed.  This would mean that the other eight actions did not

22     exhibit any elements that would provide notice to Lukic or anyone else of

23     the crimes of murder that could be imputed to a JCE for deportation.  The

24     judgement found that in five out of the other eight actions there was no

25     indicia of either crimes or excessive force occurring.  Look to

Page 500

 1     paragraphs 853, 860, 869, 873, and 898 of book I.

 2             Under this set of facts, it is illogical for any Chamber to

 3     conclude that murders and indeed different crimes, such as deportation

 4     and forcible transfer, would result in 1999 as part of a future JCE when

 5     anti-terrorist actions were again conducted.

 6             What could Lukic conclude from the fact that in one of nine

 7     anti-terrorist operations there were unverified rumours of civilian

 8     deaths that the authorities tried to investigate but were prevented in

 9     doing so by the KLA?  Surely the existence of a widespread and systematic

10     JCE to deport the Kosovo Albanian population is not the only reasonable

11     conclusion available under this evidence.

12             Since it is not the only reasonable conclusion under the

13     evidence, any approach that automatically assumes a criminal mens rea for

14     a future JCE from past crimes of a different nature is flawed and in

15     error.

16             As to your fifth question for us, relating to whether the

17     incident at Tusilje should have been pleaded in the indictment and

18     whether it was cured or the prejudice to the accused resulting therefrom,

19     we would like to say as follows.

20             The case law is clear that a Trial Chamber has erred when it

21     enters convictions depending on material facts that were not properly

22     pleaded in an indictment; this is paragraph 1112 [sic] of the

23     Kupreskic appeals judgement.

24             The judgement in our case references Tusilje in multiple

25     paragraphs in book II and the Chamber makes several findings linking

Page 501

 1     Tusilje to the same status as incidents in the indictment; see, for

 2     instance, book II, paragraph 1219.  It then bases its findings that there

 3     was an attack upon the civilian population based on these findings,

 4     including Tusilje.  Thus, it is clear that the convictions of the trial

 5     judgement are based on material facts that the Defence was not put on

 6     notice of in the judgement [sic].  Thus, the Trial Chamber erred,

 7     rendering the judgement unsafe.

 8             It is the position of the Defence that this defect in the

 9     indictment could not be cured and that the Defence could not be rightly

10     put on notice that any events in Tusilje would be considered to convict

11     the appellant.  Indeed, had that been the case the appellant would have

12     presented Defence evidence as to Tusilje, which the Defence did not,

13     because Tusilje was not in the indictment.

14             Your Honours, I now briefly highlight some of the main points

15     from our appeal.  At the outset I must stress that the Appeals Chamber

16     must step in where, as is the case here, factual findings are tainted by

17     multiple errors of law and fact.  This is in line with the Kordic and

18     Cerkez appeals judgement at paragraphs 18 through 19.  Likewise, as the

19     Appeals Chamber has reaffirmed in two recent decisions - in the Gotovina

20     case at paragraph 93 and the Mugenzi case at paragraphs 91 and 136 -

21     where it is not reasonable for a Trial Chamber to find that the only

22     possible interpretation of events involved a criminal purpose and JCE,

23     reversal and acquittal is warranted.  It is submitted that the factual

24     errors in the judgement are so many and go to the heart of the judgement

25     that a limited review is appropriate, as no reasonable Chamber could have

Page 502

 1     excluded the alternative interpretations of events possible under the

 2     evidence.  And thus, Lukic should not have been convicted of

 3     participating in a JCE.  Absent such a review, a miscarriage of justice

 4     would result.

 5             It is respectfully submitted that, reviewing the errors raised in

 6     our appellant's brief, it becomes clear that the Trial Chamber

 7     consistently made inferences about the existence of a JCE, Mr. Lukic's

 8     knowledge of the same, and his intent to join the same, and his voluntary

 9     joining of such a criminal purpose, when in fact alternative and

10     reasonable conclusions were available under the evidence that demonstrate

11     the opposite, that Lukic was trying to uphold law and order and not

12     commit crimes.

13             As to mens rea, it is a reasonable conclusion to reach from the

14     evidence that Lukic was engaged in actions appropriate for a police

15     officer, attempting to uphold law and order in a difficult situation,

16     faced with a terrorist insurgency, NATO air strikes, and limited

17     authority.  The judgement forgets that in 1999 NATO planes were bombing

18     all over Kosovo which cannot be ignored.

19             In order to assess the judgement's error, it is necessary to take

20     into account that Lukic's arrival to Kosovo, just like all his actions,

21     was dictated by a compliance with the law and was not voluntary, let

22     alone with intent to conduct crimes.  Lukic was sent to Kosovo by force

23     of law, which permitted a member of the MUP to be assigned by the

24     minister to any position anywhere on the territory of Serbia.  This law

25     is in evidence at P1737, Article 72.  The record demonstrates that all

Page 503

 1     three decisions sending Lukic to Kosovo, P1252, P1505, and P1811, all

 2     invoke Article 72 of this law.  Article 33 of the law dictates that an

 3     employee of the ministry is duty-bound to carry out the orders of the

 4     minister if they do not themselves amount to a criminal offence on their

 5     face.  The text of the aforementioned decisions makes clear that what was

 6     being asked of Lukic was the regular and normal performance of police

 7     duties, not anything that could be construed as criminal acts.

 8             Further, it is significant to note that President Milutinovic who

 9     was acquitted of any role in the JCE enacted an instruction on internal

10     affairs during the time of war, which is P993, which also in Article 7

11     made it mandatory for Lukic to carry out his assignments given by police

12     superiors unless they clearly involved the commission of crime and called

13     for disciplinary proceedings for those who refused to carry out

14     legitimate orders.  Thus, it was entirely reasonable for Lukic, like

15     Milutinovic, to have an intent and frame of mind separate and apart from

16     a criminal one, when performing his duties in Kosovo pursuant to orders

17     and laws that were legitimate on their face.

18             The Trial Chamber, in book III, paragraph 92, concedes that the

19     problems relating to the KLA were supposed to be resolved by the state

20     using the police and the judicial system.  Thus, contrary to a finding

21     that Lukic's acceptance of his position as head of staff involved any

22     criminal intent, another reasonable inference under the evidence is that

23     he was following the law and attempting to perform legal, normal police

24     functions, in an effort to bring law and order to all citizens within his

25     means, indeed what the Chamber had called the appropriate course of

Page 504

 1     action.

 2             As part of fulfilling his duties, Lukic had to attend meetings,

 3     both in Kosovo and in Belgrade.  The judgement erroneously links his

 4     attendance to Belgrade meetings as evidence that he shared in a criminal

 5     intent, a common purpose as part of a JCE.  We see this in book III,

 6     paragraphs 1019, 1022, 1024, and 1040.  However, this is contrary to the

 7     judgement's finding as to Milutinovic, whose presence at the same

 8     meetings was determined not to show criminal intent.  We see that at book

 9     III, paragraphs 132 and 143.  Further, the Appeals Chamber has recently

10     ruled in an ICTR judgement of Mugenzi case at paragraph 139 that:

11             "No reasonable trier of fact could have excluded the reasonable

12     possibility that Mugenzi and Mugiraneza attended the installation

13     ceremony for purposes other than because they shared the common criminal

14     purpose."

15             In that case the reasonable alternative meaning was that they

16     attended the ceremony as a result of obligations arising from their

17     positions as ministers.  Your Honours, Lukic's attendance at meetings is

18     also purely a result of his obligations arising from his official

19     position, not because of any knowledge or acceptance of any criminal

20     purpose.

21             Instead of looking at his mere attendance at meetings, the

22     Chamber should have focused on direct evidence of Lukic's intent as

23     contrary to any criminal purpose.

24             The Trial Chamber erroneously lists the criminal purpose as

25     ensuring the continued control by Yugoslavia and Serbia over Kosovo by

Page 505

 1     criminal means, to wit, the deportation of the Albanian population.  This

 2     is in book III, paragraph 95.  No reasonable trier of fact could exclude

 3     the possibility that continued sovereignty over Kosovo was envisioned as

 4     a legitimate and legal function of the state.  Also, no evidence can

 5     demonstrate Lukic knew of any nefarious or illegal element such as the

 6     removing of Albanians.

 7             In relation to the continued sovereignty over Kosovo, this is a

 8     recognised tenet of the Constitution of Serbia, rather than any criminal

 9     goal or purpose.  This tenet was reiterated and confirmed by all the

10     international instruments drafted during the relevant time-period,

11     including the Resolutions of the UN Security Council, P455, P456, P433;

12     also including the Contact Group proposals discussed at paragraph 314 of

13     book I; and the principles of the Contact Group at paragraph 354 of the

14     same book; the Gelbard statement, that is 6D1491; the

15     Milosevic-Holbrooke Agreement, that is 1D204; the Jovanovic-Cermak

16     Agreement, that is P432; the Perisic-Clark Agreement at P454; and the

17     Kumanovo Accords at 6D611.  Under this backdrop it is illogical to see

18     how and why Lukic had to understand such a tenet as requiring criminal

19     purpose and criminal means to be attained when the international

20     community itself promoted the sovereignty of Serbia and Yugoslavia over

21     Kosovo.

22             This past Monday the Prosecution again identified

23     Slobodan Milosevic as playing a pivotal role in the JCE.  As to the

24     erroneous conclusion that Lukic shared the intent of Milosevic and other

25     alleged members of the JCE to commit crimes, the Trial Chamber in

Page 506

 1     book III, paragraph 1115 did not offer a single piece of evidence.

 2     Indeed, the evidence to the contrary demonstrates that Lukic stands apart

 3     from other named members of the alleged JCE.  He was neither a person

 4     close to nor trusted by President Milosevic nor

 5     MUP Minister Stojiljkovic.  The evidence is clear.

 6             Indeed, the Trial Chamber itself confirms at book III,

 7     paragraph 85, that Lukic did not fit the pattern of persons said to be

 8     carefully positioned to high-level positions by Milosevic.  It is clear

 9     from the evidence that Lukic, rather than being promoted by Milosevic,

10     was demoted in 1991.  We can see this from P948, 6D1360, 1D680, and is

11     also confirmed in the judgement at book III, paragraph 937.

12             In May of 1997, Stojiljkovic, presumably with the prior

13     consultation with Milosevic appointed a major to be the SUP chief and to

14     be Lukic's immediate superior.  It should be noted at this time Lukic was

15     a general in rank.  And we see that from the testimony of Golubovic at

16     transcript page 7426 as well as 6D1458 and 6D1457.

17             Even when Lukic was sent to Kosovo, the evidence is clear that

18     two high-level assistants of Stojiljkovic were in Kosovo,

19     Assistant Minister Obrad Stevanovic, who was also the PJP commander; and

20     Vlastimir Djordjevic, the chief of the public security sector and deputy

21     MUP minister.  The judgement finds that Lukic's appointment did not

22     replace the existing command structures of the MUP.  This is at

23     paragraph 1012 of book III.  Further, we have evidence of another alleged

24     close associate of Milosevic, General Ojdanic, the Chief of Staff of the

25     VJ, for whom the judgement confirms he was carefully positioned by

Page 507

 1     Milosevic to replace General Perisic who was less malleable to

 2     Milosevic's whims, at book III, paragraph 85.  The transcript of a

 3     meeting, 11 April 1999, chaired by Ojdanic refers to General Lukic as an

 4     adjutant, demonstrating that Lukic was not seriously considered as a

 5     major player.  This is at 3D728.

 6             Furthermore, we had a key Prosecution witness,

 7     VJ General Vasiljevic, who described Lukic's role at a meeting he claimed

 8     was of a so-called Joint Command as being the "last hole on the flute,

 9     the 13th piglet."  This is at transcript page 9066.  Under the totality

10     of the foregoing, no reasonable trier of fact could determine that Lukic

11     had any command authority or that these meetings in Pristina were a place

12     where Lukic exercised any kind of de facto authority.

13             After the war, Lukic was not promoted to a choice position within

14     the MUP, but rather was appointed as head of the border police

15     administration, which at the time was the lowly fourth department in the

16     hierarchy.

17             Later, you will hear about what Lukic did within that position,

18     which is also contrary to the intent to further a JCE.

19             Lukic was only promoted and appointed to a high-level position

20     within the MUP within 2001, after the overthrow of Milosevic by

21     democratic forces.  We see this from Prime Minister Zivkovic's 92 ter

22     statement, 6D1607, paragraph 4.  Thus, only after Milosevic and his MUP

23     Minister Stojiljkovic, and the assistants Djordjevic and Stevanovic were

24     removed, was Lukic able to be promoted and made chief of public security.

25     Later in our submission you will hear how Lukic acted while in this

Page 508

 1     position.  Co-operation with the ICTY and transfer of accused to the

 2     Tribunal from Serbia first occurred during Lukic's tenure, and he did

 3     many other things to investigate crimes against Albanians and others

 4     committed during the prevailing years.

 5             One has to ask, given the foregoing evidence, would it be logical

 6     for MUP officers Stojiljkovic, Djordjevic, and Stevanovic, as named

 7     participants in an alleged JCE, to include and rely upon a person who was

 8     not of their choosing, was not trusted by them, and did not owe them any

 9     favours, and, in any event, did not hold a position that had any

10     effective control over any units?  Or would it be more logical that these

11     named members of a JCE would exclude Lukic and would effectuate the same

12     using their own positions within the highest leadership of the MUP and

13     did not need Lukic.

14             I have to remind the Chamber that the evidence at trial showed

15     that Lukic's MUP staff at all times was comprised of only eight to ten

16     people.  The testimony of Mijatovic at 22167 through 22172 confirms that.

17             The Trial Chamber did not perform this analysis and it is in

18     error because it was supposed to exclude any such possibility before

19     convicting Lukic.

20             On the other side, would it be logical for Lukic, who devoted his

21     life to law enforcement, to abandon the same to side with persons who had

22     degraded and demoted him?  We say it defies logic.  Would it be logical

23     for Lukic to be promoted to the head of the MUP after the fall of

24     Milosevic and would it be logical for him to initiate co-operation with

25     the ICTY and investigation of crimes if in fact he were involved in these

Page 509

 1     crimes?  We say that defies logic.

 2             If we can now return to focus on the time-period of the

 3     indictment, I think it is essential to review the evidence on record that

 4     demonstrate the intent of Lukic to be contrary of any criminal enterprise

 5     as this demonstrates the further error of the Chamber.

 6             In book III, paragraph 918, the judgement rightly gave credit to

 7     Lazarevic for a limited number of efforts by way of written declaration

 8     to ensure the army acted appropriately in carrying out its duties.  As to

 9     Lukic, the Trial Chamber first acknowledges that Lukic issued what it

10     calls orders to direct the police to prevent crimes and prevent the

11     departure of civilians from Kosovo and even likens them to these VJ

12     orders to abide by the law which, it says, were violated by the forces.

13     But Lukic's written reminders for the police to adhere to the law and

14     treat civilians accordingly were viewed in a negative light by the

15     Chamber.  Look at paragraphs 1124 and 1129 of book III.

16             These steps by Lukic, even from a position where he had a limited

17     authority, demonstrate that he did not share any intent to commit crimes

18     against ethnic Albanians.  Rather, Lukic committed himself to call for

19     measures to be undertaken to prevent crimes and prevent mistreatment

20     against Albanians and for punishment of all persons found to be

21     committing these crimes, including police members.

22             It is submitted that 12 key pieces of evidence were erroneously

23     analysed by the Trial Chamber and that these documents demonstrate

24     Lukic's true intent and character.  All of these exhibits are first hand

25     from Lukic, containing either what he said or wrote.

Page 510

 1             A brief overview of this evidence demonstrates that each of these

 2     12 dispatches and reports from meetings of encouragement and reminders

 3     issued by Lukic call for energetic measures by the police to prevent any

 4     mistreatment of Kosovo Albanians, that the police prevent persons from

 5     evicting Kosovo Albanians from their homes, that measures be taken to

 6     apprehend criminals and terrorists, and that citizens should be persuaded

 7     not to leave their villages by guaranteeing that safety measures in

 8     accord with the law would be taken.

 9             These documentary exhibits are as follows:  6D768, dated

10     7 August 1998; 6D872, dated 23 February 1999; 6D666, dated 3 April 1999;

11     P1989, dated 4 April 1999; 6D778, dated 15 April 1999; 6D874, dated

12     6 May 1999; P1996, dated 7 May 1999; 6D773, dated 8 May 1999; P1993,

13     dated 11 May 1999; 5D1423, dated 12 May 1999; 5D1418, dated 26 May 1999;

14     5D1421 dated 11 June 1999; and P1468 at various dates.

15             The Trial Chamber, at paragraph 1129 of book III, tries to cast

16     these, what it calls, orders by Lukic as not being genuine.  However,

17     elsewhere, at paragraphs 92, 173, 1001 of book III, it relies on his same

18     items as genuine orders demonstrating that Lukic had a command role and

19     authority over MUP units.  Respectfully, Your Honours, you can't have

20     your cake and eat it too.  Either these orders were genuine and show

21     Lukic did not intend crimes but perhaps lacked authority to enforce his

22     orders, or they are not genuine; and in that case cannot demonstrate any

23     command authority for Lukic.  The Trial Chamber failed to analyse or

24     exclude the reasonable alternative, that these orders were genuine but

25     that Lukic had no authority over MUP forces.

Page 511

 1             Now I would like to return to a point we have alluded to, the

 2     limited authority of Lukic as head of the MUP staff for Kosovo.

 3             These 12 documents are important to understand why it would be

 4     impossible for Lukic to significantly contribute and further any

 5     objective of any criminal purpose on the one hand and why the

 6     Trial Chamber erred in dismissing them as not genuine.

 7             At book III, paragraph 1129, the judgement claims that Lukic,

 8     despite his knowledge of the events on the ground, nevertheless continued

 9     to order the MUP to engage in joint operations with the VJ and uses this

10     to claim that his orders for prevention and mistreatment of civilians are

11     not genuine.  There is no supporting evidence cited that Lukic had a

12     authority to order the MUP to continue engaging in joint operations.  To

13     the contrary, a plethora of evidence is on the record that Lukic did not

14     have effective control or command authority.

15             Lukic did not have authority to punish or discipline any MUP

16     personnel directly.  This is conceded by the Trial Chamber, at book III,

17     paragraph 1049.  It is thus inconceivable for Lukic to have command

18     authority over the MUP when the judgement confirms he did not have the

19     power to punish.  Without such a power, one cannot enforce adherence to

20     any orders.

21             The evidence that Lukic could not institute criminal proceedings

22     against police members includes 6D1613, paragraph 43.

23             The evidence that Lukic was not authorised to make decisions as

24     to instituting disciplinary proceedings against police members can be

25     found, for instance, at 6D1613, 6D1340, and the testimony of

Page 512

 1     Witness Cvetic at 8152 through 53.  Further, we have the order of

 2     President Milutinovic discussed previously as to the disciplinary rules

 3     of the MUP which did not identify either the MUP staff or Lukic as having

 4     any such authority; that is P993.

 5             The evidence we have just cited demonstrates that police

 6     superiors did not have an obligation either to inform Lukic nor seek his

 7     approval for instituting disciplinary actions against their subordinate

 8     police officers.  That Lukic had no role is seen also by 6D133 and 6D1342

 9     which the republican MUP sent out delineating regulations for

10     disciplinary proceedings during the time of war, where, again, he was not

11     even foreseen to be informed of such instances.

12             Another factor to consider is that Lukic did not even have

13     authority to reassign or remove any police member, even members of his

14     own staff; P1884 demonstrates that fact.  And P1885 and P1886 demonstrate

15     that when officers of the SUPs were replaced and new persons appointed,

16     these decisions originated from deputy minister and chief of public

17     security Djordjevic, not Lukic.

18             Insofar as the Chamber did not make a difference between the

19     period before and during the NATO bombing campaign, it further did not

20     take into account that there was no room for Lukic to have any command

21     type authority, since during the time of war assistant minister and

22     commander of all the PJP, General Obrad Stevanovic, who was also the

23     chief of the police administration, was on the ground in Kosovo for the

24     entire duration of the war and out in the field with the PJP units.  This

25     can be seen from P948, the testimony of Mijatovic at 22255; the testimony

Page 513

 1     of Vucurevic at 63064 -- 23064; Bogunovic's 92 ter statement, 6D1614,

 2     paragraphs 6, 67, and 76; the testimony of Ilic at 24418; and Zivaljevic

 3     at 24927.

 4             This error is despite the fact that the judgement recognises that

 5     Obrad Stevanovic and Vlastimir Djordjevic were the only MUP members

 6     present when the issue of resubordination of the MUP to the VJ was at

 7     issue, not Lukic.  Look to book I, 1170 of the judgement for that.

 8             The evidence is also clear that Lukic did not take part in

 9     drafting the global plan for terrorism -- for suppression of terrorism.

10     The Trial Chamber itself confirms this at paragraph 1021.  Having so

11     found, the Chamber then erred attributing to Lukic a commanding role as

12     to this global plan, at paragraphs 985 and 1058 and 1051 of book III.

13             All anti-terrorist actions in 1998 were carried out under the

14     global plan and this same modus was used in 1999 as well with the

15     military planning the actions.

16             That Lukic did not have a role in planning anti-terrorist actions

17     of the VJ or the police was confirmed by multiple witnesses from within

18     the police and the VJ, but most notably by Chamber Witness

19     Colonel Djakovic at transcript page 26536 through 538; 26522 through 23.

20     And also Mijatovic at transcript 22197 through 8, and Adamovic at 24976

21     through 77.

22             As part of the overall totality of the evidence it must be

23     recalled that the Law on Defence, Article 16, stipulates that at the time

24     of war the army commands all combat activities.  There is simply no room

25     for Lukic.  This is P985.

Page 514

 1             Lastly on this topic, I would like to highlight that the

 2     judgement erroneously attributes to Lukic an instrumental role in

 3     communications between Belgrade and Kosovo, in book III, paragraph 1059.

 4     However, this is in contradiction to other findings that actually

 5     summarise the evidence.  For instance, book III, 1090, confirms that per

 6     the rules of the MUP - that would be P1044 - the seven SUPs on the

 7     territory of Kosovo have to send their dispatch reports directly to

 8     Belgrade and also to the MUP staff.  It is thus more than clear from this

 9     that Lukic's staff only received reports in parallel and in no instance

10     could have information that Belgrade did not already have from the field.

11             On the issue of notice of crimes by the MUP and VJ, the Chamber,

12     at book III, paragraph 1134, relies on a 6 May 1999 dispatch forwarding a

13     news article to SUP chiefs from the MUP staff, following a meeting in

14     Belgrade where, among others, Milosevic was present and so was Lukic.

15     However, the article in question does not relate to any allegations of

16     crimes committed by the MUP and neither did that Milosevic meeting.

17     Further, the crimes in question were being rightly investigated by the

18     appropriate authorities.  This dispatch urges police to act in accord

19     with the law and professionally to prevent persons attempting to

20     perpetrate such crimes.  Thus, the objectivity of the Trial Chamber is

21     placed in doubt by its misapplication of this document.

22             The Trial Chamber also tries to attribute significant meaning to

23     the daily overviews that were sent from the MUP staff.  These were only

24     routine summaries of normal police work based on reports from the SUPs

25     and it is important to note that they do not contain references to crimes

Page 515

 1     from the indictment.  Likewise, these overviews, at most, informed Lukic

 2     of investigations underway to locate perpetrators of crimes and preserve

 3     evidence which is not the light in which the judgement represents them.

 4     Thus, these overviews could only provide Lukic with the same type of

 5     information that was the basis of President Milutinovic's acquittal.

 6             Lastly, at book III, paragraph 40, the Trial Chamber says:

 7             "... the confiscation and destruction of identity documents is

 8     some of the strongest evidence in the case going to show that the events

 9     of spring 1999 in Kosovo were part of a common purpose."

10             As to the alleged confiscation of ID documents, the Chamber's

11     error in considering the evidence is significant.  We must keep in mind

12     that the judgement confirms that a majority of witnesses said this was

13     done at the border - this is in book III, paragraph 32 - and by "majority

14     of witnesses," this does not mean a majority of those that testified

15     because, as we know, only 26 out of 62 Kosovo Albanian witnesses spoke of

16     witnessing such confiscation and even fewer claimed to have been

17     personally victims of such confiscation.  We can see that evidence

18     summarised in the same paragraph of the judgement.

19             Respectfully, this is not enough to conclude a common criminal

20     purpose, nor is it sufficient to demonstrate the strongest evidence of a

21     common purpose, as the Chamber concludes in paragraph 40.  In any event,

22     the error as to Lukic is compounded by the fact that the Chamber conceded

23     he did not have authority over the border police stations, where such

24     confiscations allegedly occurred; and that is a finding from book III,

25     paragraph 1075.

Page 516

 1             Also, the evidence of record is that there are only allegations

 2     of such confiscations occurring at one of the several border crossings

 3     that were in existence, six in total.

 4             The Chamber's error as to identity documents did not adequately

 5     take into consideration that under the existing domestic law, which would

 6     be 1D226, the Law on Yugoslav citizenship, the loss of such identity

 7     documents did not in any way destroy the citizenship records of an

 8     individual.  Indeed, later you will hear how Lukic undertook to issue new

 9     passports to 220.000 Kosovo Albanian citizens after the period of the

10     indictment.

11             I would now like to address our arguments as to mitigation, per

12     Rule 101(B)(ii).  The judgement having entered an erroneous finding of

13     guilt improperly compounded that error by misapplying the law of

14     mitigation.  It is submitted that Lukic is entitled, at the very least,

15     to a significant reduction in sentence.  There are three factors in

16     mitigation that apply.  These factors are:  First, Lukic's voluntary

17     surrender and interview; then his assistance in an investigation and

18     contribution to law and order in a number of cases connected to the

19     crimes against Albanian civilians including some crimes in the

20     indictment; and, third, is his deteriorated health and personal

21     circumstance.

22             At this time I would like to point out the most glaring error of

23     the Trial Chamber that first acknowledges, in book III, paragraph 1202,

24     that Lukic is entitled to credit for mitigating factors unique to him,

25     but then it declines to give such credit and sentences him uniformly with

Page 517

 1     other accused lacking such personal mitigation evidence.  This is at

 2     book III, paragraph 1205.  Your Honours, this violates the very purpose

 3     behind Rule 101(B)(ii).

 4             The trial judgement at paragraph 1152 of book III recognised that

 5     under the jurisprudence voluntary surrender and co-operation are to be

 6     afforded status as mitigation.  It is submitted that the Trial Chamber

 7     erred and unfairly deprived Lukic of the benefit of his voluntary

 8     surrender and interview given to the Prosecution.  While correctly

 9     acknowledging that co-accused Lazarevic was entitled to mitigation credit

10     for his voluntary surrender, in book III, paragraph 1200, the

11     Trial Chamber, at book III, paragraph 1204, regarded that Lukic was not

12     entitled to credit for his voluntary surrender.  The only rationale given

13     by the Chamber was its own prior decisions on provisional release which

14     neither take into account the totality of the evidence nor the prevailing

15     jurisprudence.  Furthermore, the first decision cited by the Chamber in

16     support of its conclusion does not, in fact, relate to Lukic but relates

17     to a co-accused showing that the Chamber erred in its analysis.

18             Likewise, as to the interview given by Lazarevic, the Chamber

19     correctly qualifies the same as significant co-operation that is afforded

20     mitigation credit at book III, 1198.  As to Sreten Lukic, who gave his

21     interview before ever being indicted for any crimes and without any

22     reservations, without any limitations, without representation of counsel,

23     the Chamber, in book III, paragraph 1202, does not afford it as

24     constituting significant co-operation nor mitigation credit.  Such

25     disparate treatment is erroneous.

Page 518

 1             Your Honours, I next want to touch on the contributions of

 2     Mr. Sreten Lukic to law and order.  At book III, paragraph 1205, the

 3     Trial Chamber determined that irrespective of the personal mitigating

 4     circumstances that had been established for Mr. Lukic, he had to have an

 5     identical sentence to other co-accused found to be part of the JCE.

 6             THE INTERPRETER:  Kindly slow down.  Thank you.

 7             MR. IVETIC:  As to Lukic, there was significant evidence that he

 8     worked within his mandate in different posts in the MUP after 1999 to

 9     contribute to peace and reconciliation and bring justice to all crime

10     victims, including Albanians.  Even though the Serbian MUP withdrew from

11     Kosovo, Lukic after his appointment as head of the department issuing ID

12     documents, undertook to facilitate the issuance of new ID documents to

13     Kosovo Albanians through an office in Pristina, all until the head of

14     that office was assassinated by the KLA.  We have the testimony of

15     Dujkovic at 23367 of the transcript on that.  Then Lukic opened a

16     satellite office to continue this work in Nis, the closest major city to

17     Pristina.  The evidence shows that most of the persons obtaining

18     documents were ethnic Albanians.  From Dujkovic, transcript page 23367

19     through 23368, we see that in evidence.  And as I've mentioned, in this

20     manner over 220.000 new passports were issued to Kosovo Albanians in a

21     short time immediately after the war during Lukic's tenure in this

22     department.  We see that from Odalovic at transcript page 14447 through

23     14448.

24             After the ouster of Milosevic, Lukic was appointed by the

25     democratic authorities as chief of the public security sector and thus

Page 519

 1     attained more powers.  At that time, based on information from media

 2     reports, Lukic spear-headed the commencement of unfetterred and

 3     wide-scale investigations by the MUP as to mass graves and war crimes

 4     dating from the Kosovo war.  We -- I would urge Your Honours to look at

 5     the record in our final trial brief at paragraphs 1464 through 1485.  We

 6     summarised the evidence on that which was significant.

 7             Further, he promoted and facilitated co-operation between the MUP

 8     and the ICTY as to ongoing investigations.  The final trial brief at

 9     paragraphs 1486 through 1507 summarise that, and that was before the

10     Trial Chamber.

11             This was all in spite of the unpopularity of such actions and

12     threats made to his life and safety when he set up a Working Group to

13     investigate claims of cover-ups of atrocities perpetrated against

14     Albanians.  I would point to Prosecution Witness K84 at transcript

15     page 5228.  Indeed, Defence and Prosecution witnesses talked of Lukic's

16     integral role in post-conflict efforts to uncover crimes in Kosovo and

17     promote justice, including co-operation with the ICTY; those would be

18     K84, 6D2, Zivkovic, Kostic, and Furdulovic.

19             Lukic initiated a project to gather all documentation from

20     Kosovo, to preserve records, so as to assist in prosecutions of

21     perpetrators even after the war.  Witness Kostic talked about that at

22     T.24104.

23             Further, Lukic undertook to try and resolve the tensions in the

24     south of Serbia by creating a new multi-ethnic police in that region

25     which included Albanians.  Dujkovic at transcript page 23369 and Zivkovic

Page 520

 1     at transcript page 24685 talked about this.  Indeed, the Trial Chamber

 2     recognised some of this and at book III, paragraph 1202, found that:

 3             "... Lukic contributed to law and order in a number of cases

 4     connected to the crimes in the indictment, and therefore we will take

 5     this into account in mitigation when determining his sentence."

 6             However, the Chamber did not follow through with its own finding.

 7     The Chamber's negation of mitigating factors is improper.  It also sends

 8     the wrong signal, which would stifle efforts of others, contemplating

 9     personal sacrifice to promote law and order.  If an individual who puts

10     his life on the line to investigate crimes and bring perpetrators to

11     justice is not afforded mitigation credit and is to be punished equally

12     with others who do not have evidence of such efforts, then where is

13     justice and what is the meaning of Rule 101(B)(ii)?

14             Here Sreten Lukic personally undertook when he came to a position

15     within the police where he could do so, to have investigations carried

16     out on crimes, including those from this indictment, and spear-headed the

17     first steps for co-operation between Serbia and the Tribunal.  It should

18     be noted that under the leadership of Lukic, the Serbian MUP made the

19     first arrests and transfers of ICTY indictees, eight in total, and

20     transferred seven more persons to the Tribunal pursuant to voluntary

21     surrenders.

22             I would like to now turn to the diminished health of Lukic.

23     First of all, it is apparent from the face of the judgement that the

24     Chamber did not review all the pertinent filings when it said on

25     book III, paragraph 1202:

Page 521

 1             "The Chamber has re-examined the relevant documentation in the

 2     record of the proceedings but does not consider that Lukic's state of

 3     health rises to the level that would warrant mitigation of his sentence."

 4             The Chamber's review was only of less serious health

 5     complications, which we see from the decisions -- from the filings cited

 6     in the footnote.  These were a bad back and tooth problems, and the

 7     Chamber ignored and did not mention the very serious condition that

 8     required two cardiac surgeries before Lukic's surrender, one of which

 9     resection of an aneurism of the ascending aorta with interposed graft and

10     replacement of the aortic valve in 2004 is regarded as one of the most

11     serious cardiac invasive procedures.

12             The seriousness of the Trial Chamber's error is best illustrated

13     by the information that this Chamber now has before it.  Appendix B to

14     the appellant's brief demonstrates the underlying medical condition and

15     the serious problems that plagued his treatment upon his arrival to the

16     Tribunal.  You now also have on the record from the provisional release

17     filings the report of medical professionals dated 13 February 2002 [sic]

18     and 21 January 2013 respectively, from which we see that:

19             "The survival rate among socially isolated patients with coronary

20     disease is twice lower than that among socially integrated patients in

21     the short term ... studies in Sweden have shown that the ten-year

22     survival rate of patients with coronary heart disease is three times

23     better among socially integrated patients than isolated ones."

24             The Appeals Chamber should rightly consider that this current

25     22-year sentence against Lukic is, in fact, potentially a life sentence

Page 522

 1     due to the morbidity statistics set forth by the medical professionals.

 2     This should be viewed as a mitigating factor and should be taken into

 3     account.

 4             And at this time, Your Honour, I don't know whether we should

 5     have the break prematurely or if I can pass the podium to my colleague,

 6     Mr. Lukic.

 7             JUDGE LIU:  Well, I believe we will have the break right now and

 8     we will resume at quarter to 12.00.

 9                           --- Recess taken at 11.11 a.m.

10                           --- On resuming at 11.45 a.m.

11             JUDGE LIU:  Yes, counsel for Mr. Lukic, you may continue.

12             MR. LUKIC:  Thank you, Your Honours.  To spare you from my heavy

13     accent, I will give this part in B/C/S so you receive proper translation.

14             [Interpretation] First of all, a small digression.  My colleague,

15     Mr. Ivetic, mentioned, among others, two people, those are

16     Obrad Stevanovic and Mr. Djordjevic.  We should like to point out to

17     Your Honours that both these persons throughout 1998 and 1999 were

18     superior to Mr. Sreten Lukic.

19             I shall now deal with only some of the errors in fact made in the

20     trial judgement relative to our client.  You have heard on this topic

21     from other Defence teams relative to other accused in this case.

22             Our Defence believes that the established practice in this

23     Tribunal is that the Appeals Chamber must intervene when it is clear that

24     the Trial Chamber has committed numerous errors in fact and in law.  We

25     would mention not only the dissenting opinion of Judge Morrison on the

Page 523

 1     appeal judgement in the Milan and Sredoje Lukic case, paragraph 8, but

 2     also the appeal judgement in the Kordic and Cerkez case, paragraphs 18

 3     and 19, as well as the judgement in the Blaskic case.

 4             In our appeal brief we have only partially outlined some of these

 5     errors because account had to be taken within the limit of words also of

 6     other grounds of appeal that this Defence deems important.  Thus, the

 7     scope of the errors stated in our appeal brief does not nearly reflect

 8     the actual extent of the errors.  On this occasion, we shall deal only

 9     with the errors noted in Volume III of the judgement.  We emphasise that

10     the findings and conclusions in 45 paragraphs of Volume III, which is

11     almost one-fourth of the paragraphs related to my client, rely on

12     erroneous, incorrect, inconsistent, and incompletely quoted 194 exhibits

13     that were thus erroneously analysed.  This fact cannot and must not be

14     ignored.  The judgement does not reflect the actual state of facts, and

15     it is therefore evident that the Trial Chamber, due to these errors,

16     erroneously made legal conclusions on the role of Sreten Lukic and

17     therefore also erroneous conclusions on his liability.

18             The massive number and the substance of these errors considerably

19     invalidate the findings and the conclusions of the Trial Chamber.

20             The judgement is replete with findings and conclusions

21     referencing footnotes, but when one reads the exhibits from those

22     footnotes they simply fail to corroborate the findings and conclusions

23     from the paragraphs of the judgement.

24             If the judgement were to be read on its own, it makes sense; but

25     it does not make sense if the allegations, the findings, and conclusions

Page 524

 1     of the Trial Chamber are cross-checked with the exhibits referenced in

 2     the footnotes.  This has led to a great injustice done to my client

 3     because based on these and such numerous errors, erroneous legal

 4     conclusions were made on the liability of my client.  We have divided

 5     these errors today into several groups.  The first groups are errors

 6     related to overviews of daily events and incidents made by the MUP staff

 7     in Kosovo.  These overviews were made on the basis of reports received

 8     from secretariats of internal affairs in Kosovo, and as we have heard

 9     those reports were in parallel and primarily sent to the headquarters of

10     the MUP in Belgrade and copied to the MUP staff in Pristina for their

11     information.

12             Although the source documents state that they are overviews, the

13     Trial Chamber persistently calls them reports, which makes an essential

14     difference.  Most of the reports had already been sent to the MUP staff

15     in Belgrade.  We can see that from the numbers of the documents cited in

16     the reference numbers allocated by the staff.  These documents are used

17     by the Trial Chamber as evidence in making conclusions on various issues

18     concerning the powers and the role of Mr. Lukic as head of that staff.

19             As a rule, the Chamber attempts to prove the opposite of what

20     these reports show; namely, the conclusive finding concerning these

21     overviews is cited in para 1059, referencing footnote 2657, where the

22     Chamber states:

23             "Lukic's name is printed at the end of every report, but he did

24     not sign those reports physically."

25             Despite this conclusion, in the concluding paragraph, 1123 of

Page 525

 1     Volume III, the Chamber states how these reports were made and what Lukic

 2     knew about the events in Kosovo.

 3             "They were later integrated into one comprehensive report that

 4     Lukic signed and sent to the MUP in Belgrade."

 5             The statement that Lukic signed and sent is directly opposite to

 6     the previous finding of the Chamber, where it stated that Lukic did not

 7     sign these reports.

 8             In several paragraphs the Chamber references these reports as

 9     evidence that Lukic had knowledge that he was an important chain in

10     reporting and similar, saying that Lukic signed these reports.  However,

11     the fact is that none of these reports were signed by Lukic himself, also

12     because those reports were not even in the possession of Sreten Lukic

13     because it was the routine work of the analyst at the staff.  The analyst

14     was Desimir Slovic prior to the bombing, and after he was wounded in the

15     NATO bombing of Pristina at the beginning of the conflict he was replaced

16     by Vojislav Gucic.  The reports that Sreten Lukic saw could only inform

17     him that criminal acts were being detected and duly prosecuted, and the

18     same applies to all the reports that are not even all part of the case

19     file, although we have given them all to the OTP, and in this case we

20     have 30 such reports in evidence.  Each of these reports states that

21     crimes were being detected and duly prosecuted.

22             The judgement, however, relies on its own erroneous

23     interpretation of reports in a large number of paragraphs:  Volume III,

24     1052 [sic], 48 reports in the footnote 2639, 26 reports in footnote 2640,

25     22 reports in footnote 2641; Volume III, 1054, four reports in footnotes

Page 526

 1     from 2654 to 2648; then Volume III, 1090, quotes 6D1246; Volume III,

 2     1091, references 6D1239 on three occasions; Volume III, 1094, 6D1242,

 3     P1693; Volume III, 1096, 16 report stated in footnote 2751; Volume III,

 4     1123, eight reports in footnote 2824; Volume III, 1124, 16 reports in

 5     footnote 2826.

 6             From this we see that in eight paragraphs 146 reports are

 7     referenced which the Trial Chamber says have been signed by Lukic which

 8     is not confirmed by any of the reports themselves.  Precisely this

 9     massive number creates a false impression of the role and powers of

10     Sreten Lukic and his knowledge of crimes.  One should emphasise that the

11     case file contains a total of 30 overviews of the MUP staff in Kosovo and

12     Metohija, but their repetitive references to them create the false

13     impression that they are much more numerous.

14             Another group of errors concerned the conclusions of the Chamber

15     when it says that Lukic issued an order, an instruction, or similar and

16     signed them personally which is refuted by the source documents invoked

17     by the Chamber.  None of these documents were physically signed by Lukic.

18     They were signed instead by members of the staff and even some generals

19     from Belgrade who came to Kosovo and used the premises of the staff and

20     even the letter-head of the staff and its leader.

21             With Exhibit 6D874 referenced in footnote 2528 and with

22     paragraph 1005, Volume III, the Chamber states the following:

23             "The Chamber notes that even if the dispatch was not sent by

24     Lukic, it was nevertheless sent from the MUP staff in his name.  No

25     suggestion was made that it was unauthorised."

Page 527

 1             In contrast to this, we have the testimony of Gvozden Gagic who

 2     explained the entire process of the drafting and sending of this

 3     document, stating clearly that Sreten Lukic not only did not participate

 4     in writing this document, but that he was not even informed of its

 5     sending from the address of the staff, nor was any authorisation sought

 6     from him.  It was explained also that a different person signed the

 7     document, although at the bottom of the document we find the name of

 8     Sreten Lukic.  This is the testimony of Gvozden Gagic, T.24476/24 to

 9     T.24478/13.

10             Therefore, no decision or approval was needed from Sreten Lukic

11     to send something from the MUP staff.  That was also the only address

12     from which his superior, Obrad Stevanovic, wrote and sent documents

13     whenever he was in Pristina instead of in the field with PJP units.

14             We find similar erroneous conclusions of the Chamber also in the

15     following paragraphs and exhibits:  Volume III, para 988, Exhibit 6D690

16     and P2528; paragraph 1004, Volume III, Exhibit 6D237; Volume III,

17     paragraph 1005, Exhibit 5D1289; Volume III, 1093, Exhibit 6D874;

18     Volume III, para 1092, Exhibit 6D874 and 6D876; Volume III, para 1095,

19     Exhibit 5D1289.  In these six paragraphs the Chamber derives erroneous

20     conclusions related to nine exhibits.

21             The next group of conclusions involving inaccurate, incomplete,

22     or inconsistent citation or interpretation of exhibits.  Again, due to

23     the massive number of these errors, the Chamber made erroneous findings

24     and ultimately erroneous conclusions, and as a rule these findings and

25     conclusions went to the detriment of Lukic.  Therefore, had the

Page 528

 1     Trial Chamber used correct and accurate interpretations of the said

 2     evidence, it would have reasonably reached different conclusions that

 3     would be in favour of Lukic's Defence.

 4             We're going to give you a flagrant example from Volume III, 1031,

 5     where the Chamber cites that Lukic mentioned that there are allegedly --

 6     there is an alleged mass grave in the section of Jablanica and cites

 7     P1468, page 134.  In the next paragraph, Volume III, 1032, it says that

 8     this example indicates that Lukic was informed about the activities of

 9     the MUP which would indicate that the mentioned mass grave was the result

10     of action by the state forces.  The exhibits to which the Chamber refers

11     do not indicate anything like that.  Quite to the contrary.  Numerous

12     exhibits show that Jablanica was in territory under the control of the

13     KLA and that the KLA staff was also located in Jablanica at the time.

14     Thus, Lukic is referring to crimes of the KLA, and we can see that from

15     Exhibits 5D1307, 4D137, 4D140.

16             Brahimaj was even convicted before this Tribunal for some crimes

17     committed in Jablanica.  Then we have paragraph 1056, where the

18     Trial Chamber states that in the report by the staff, 6D1239, the case of

19     finding bodies of unidentified civilians were found which is completely

20     contrary to the original exhibit, where it states that in the area of

21     action by Siptar terrorist forces unidentified bodies of men were found

22     and that the investigating judge was informed about it.  So the Chamber

23     omitted the main indicator, the area of action by the Siptar terrorist

24     forces which qualifies Lukic's knowledge as to the bodies being of

25     casualties of battle.  Furthermore, this qualifier, unidentified men, is

Page 529

 1     changed, and it says that these were bodies of civilians.

 2             In Volume III, paragraph 1054, the Chamber states that in 6D808

 3     says that records were being maintained about the number of Albanians

 4     leaving Kosovo.  The Trial Chamber thereby wishes to show that this

 5     notification was, in essence, discriminatory in relation to Albanians --

 6     actually, quite to the contrary.  If you read the document you can see

 7     that it is seeking various data.  Among other things, it requests

 8     information about persons of Albanian and other ethnic communities who

 9     have fled from Kosovo.

10             JUDGE LIU:  Well, Mr. Lukic, I believe that the time allocated to

11     your submission is up.

12             MR. LUKIC:  If that is so, then I just need one minute to thank

13     Your Honours.

14             JUDGE LIU:  Yes, yes, please.

15             MR. LUKIC: [Interpretation] Due to all of the above stated in our

16     appeal and in response of the appeal by the Prosecutor as well as all

17     that we said today in our oral submissions, we would ask the

18     Appeals Chamber to issue an acquittal of our client.  We would like to

19     thank the Chamber for listening to us, for taking into account our

20     reasons and for reviewing them, and we hope that you would correct the

21     errors that we pointed to and that you would hand down an acquittal on

22     the basis of our submissions today.  Thank you.

23             JUDGE LIU:  Thank you very much.

24             Just one thing I would like to seek some clarification from you,

25     that is on page 47, line 5, you are talking about a case of the

Page 530

 1     identified bodies of the civilians.  Well, I wonder whether that is the

 2     case concerning the 287 individuals who were murdered in Djakovica

 3     municipality?

 4             MR. LUKIC:  Sorry, maybe I mispronounced, it's Jablanica, not

 5     Djakovica.

 6             JUDGE LIU:  Thank you very much.

 7             MR. LUKIC:  Thank you, Your Honour.

 8             JUDGE LIU:  Yes, Judge T has a question.

 9             MR. LUKIC:  Sorry, I already sat down.  Yes.

10             JUDGE TUZMUKHAMEDOV:  You can stand up any time or sit down any

11     time.  I would like to refer you to your brief rather to something --

12     with -- part of your brief which was left out of the oral presentation

13     today, and this is the part where you refer to documents underlying

14     Exhibit 6D614 and the brief claims that those documents were of critical

15     nature.  And if you could explain what exactly those documents were.  Are

16     you with me, counsel?

17             MR. LUKIC:  Yes, I am, but I think that my co-counsel will answer

18     your question.

19             JUDGE TUZMUKHAMEDOV:  I think so.  I think that's more

20     appropriate for him to answer because this refers to his portion of the

21     presentation.

22             MR. LUKIC:  Thank you, Your Honour.

23             JUDGE TUZMUKHAMEDOV:  So I would like to know what exactly those

24     documents were, and why, in your opinion, are they so critical to your

25     defence?  And you also claim in your brief that by not admitting, by

Page 531

 1     denying those documents, the Trial Chamber made an error.  So if you

 2     could also elaborate on that error that allegedly in your opinion was

 3     committed by the Trial Chamber.  Thank you.

 4             MR. IVETIC:  Thank you, Your Honour.  I will gladly address that

 5     and I thank you for your question.  6D614 was a compendium.  It was part

 6     of this dossier of documents that Sreten Lukic as head of the MUP after

 7     the war asked for all the documents to be collected, evidencing crimes

 8     that occurred and evidencing all the evidence that the authorities had

 9     collected to assist in prosecutions.  6D614 categorises the documentation

10     and demonstrates that the crimes that were being committed were being

11     investigated by the authorities and were being then prepared for

12     prosecution, and it shows that during the time-period of the NATO bombing

13     of Kosovo, the Serbian MUP, in fact, did investigate, did name and

14     apprehend members of the police, members of the army, and members of

15     the -- regular citizens who had committed crimes, including crimes

16     against Albanians.  The underlying documents -- 6D614 was a summary.  The

17     underlying documents would be the original base documents collected from

18     all the various secretariats of the interior on the territory of Kosovo

19     as part of this project that was spear-headed by our client.  And it

20     shows, first of all, that with regards to the notice requirements, the

21     notice that would be available to our client was that the authorities,

22     the MUP, were doing their job, they were policing, they were

23     investigating crimes irrespective of who the victims were, irrespective

24     of who the alleged perpetrators were, and were doing their best to

25     collect evidence to assist in the prosecution of these individuals.


Page 532

 1             The -- we had witnesses who testified as to the creation of

 2     6D614, and as to the base of materials that were used, the Trial Chamber

 3     only permitted us to include references from 6D614 where witnesses we

 4     brought had personal knowledge about specific items in the summary rather

 5     than allowing us to present documentary evidence that would show the

 6     entirety of the situation, which we believe would have shown a different

 7     picture.  And again, with the limitation imposed on the number of hours

 8     and number of witnesses we could bring, we could not bring witnesses who

 9     had personal knowledge of each and every single incident that was

10     investigated in Kosovo during the time-period of the NATO bombings.  And

11     I think that is the critical point of the error.

12             JUDGE TUZMUKHAMEDOV:  Thank you.

13             MR. IVETIC:  Thank you.

14             JUDGE LIU:  I see no more questions from the Bench.  And thank

15     you very much, Mr. Lukic.

16             Now we would like to hear the response from the Prosecution.

17             MS. KRAVETZ:  Thank you, Your Honour and good morning or good

18     afternoon.

19             General Lukic was an important member of the JCE.  As head of the

20     MUP staff he commanded MUP forces which committed crimes on a massive

21     scale in Kosovo in 1999.  He planned and co-ordinated the engagement of

22     MUP forces in joint operations with the VJ throughout the province, which

23     resulted in the crimes charged in this case.  Based on this and other

24     evidence, the Chamber correctly found that Lukic made a significant

25     contribution to the JCE and that he shared the intent of his fellow JCE

Page 533

 1     members, Pavkovic and Sainovic.

 2             In our submissions this morning, my colleague, Mr. Wood, and I

 3     will be addressing Your Honours' questions regarding the actus reus and

 4     mens rea requirement for JCE liability.  I will be dealing with your

 5     question ten and specifically with the actus reus requirement for JCE I

 6     and I will also be addressing Your Honours' question regarding Lukic's

 7     involvement in the disarming process.  My colleague, Mr. Wood, will be

 8     addressing Your Honours' questions regarding the mens rea requirement for

 9     JCE I and III as these relate to Lukic.  And we will be dealing with some

10     of the issues raised today by my colleagues from the Defence in relation

11     to these questions.

12             For all other matters that have been raised, we rest on our

13     written submissions.  But before I turn to addressing our response to

14     Your Honours' question, a brief comment on the standard of review and

15     Lukic's appeal.  It is our position, Your Honour, that Lukic has not

16     assisted the appeal process by his appeal brief, by his reply brief, or

17     by his submissions here today.  As we have indicated in more detail in

18     our response brief, many of the issues he raises are, in fact, arguments

19     he raised at trial which the Chamber expressly considered and rejected in

20     its judgement.  In doing so, he fails to show that the Chamber erred.

21     Lukic merely picks and chooses his way through the evidence, but ignores

22     the totality of the evidence that was considered by the Trial Chamber.

23     He also highlights irrelevant findings in isolation, and I will return to

24     this point later in my submissions.

25             In addition, Lukic misinterprets the judgement and he has done so

Page 534

 1     in his appeal brief and also this morning in submissions.  One example is

 2     the reference we heard this morning from my colleagues to paragraph 1049

 3     of Volume III of the judgement.  The Lukic team suggested that in this

 4     paragraph the Chamber concluded that Lukic had no disciplinary powers

 5     against members of the MUP.  In fact, that's not what the relevant

 6     paragraph, paragraph 1049, says.  What the Chamber found, in fact, was

 7     that instructions given by Lukic in August of 1998 and February 1999

 8     indicate that he had de facto authority to require the chiefs of the

 9     SUPs, or secretariats of internal affairs, to conduct investigation into

10     crimes, even if he was not the one who actually initiated proceedings.

11     So that is a very different finding than what has been indicated by my

12     colleagues this morning.

13             Lukic's appeal brief illustrates a misunderstanding of the

14     Tribunal's standard of review.  It also reveals a misunderstanding of the

15     Trial Chamber's findings and judgement.  This is not a case of a failure

16     to deal with evidence, as Lukic suggests.  In this case, not only did the

17     Chamber consider the evidence carefully, but it also considered the

18     submissions made by Lukic at trial carefully, provided reasoned opinions

19     on its findings, and supported its conclusions with a summary discussion

20     of the evidence.  Lukic fails to show that the Chamber's findings he

21     disagrees with or which he claims are untrue were unreasonable.  His

22     appeal simply does not meet the standard of review and should be

23     dismissed in its entirety.

24             I turn now to Your Honours' question number ten, and I will read

25     it out for the record:

Page 535

 1             "Discuss, as a legal matter, as well as with respect to the

 2     particular Trial Chamber's findings for each appellant convicted for

 3     JCE I, whether the actus reus and mens rea of a JCE member may be

 4     fulfilled prior to the existence of the common purpose ..."

 5             Your Honours already heard on Monday submissions from my

 6     colleague, Ms. Martin Salgado, in relation to our position on the legal

 7     matter, and I note that I will only be addressing the actus reus

 8     component of this question, as my colleague will be addressing the

 9     mens rea component.

10             On the facts, we understand the Appeals Chamber to be asking

11     whether Lukic was found to have contributed to the JCE prior to the

12     existence of the common purpose.  The answer to this question is no.

13             Lukic's contribution is grounded on conduct that occurred during

14     the period in which the crimes were committed.  As head of the MUP staff,

15     Lukic made a significant contribution to the JCE by planning, organising,

16     and controlling MUP units and by co-ordinating joint actions with the VJ

17     throughout the period in which the crimes were committed.

18             In the months preceding the 1999 campaign with which this case is

19     concerned, Lukic began to make preparations which laid the groundwork for

20     the implementation of the common purpose.  This preparatory work,

21     included the arming of the non-Albanian population and the disarming of

22     the Albanian population.  This conduct also forms part of his

23     contribution to the JCE, as it was carried out for the purpose of

24     implementing the criminal plan.

25             I intend to elaborate on this answer by explaining how Lukic

Page 536

 1     contributed to the JCE and why his contribution was significant, and I

 2     will deal with two issues:  First, Lukic's role as head of the MUP staff;

 3     and second, his contribution during the period when the crimes were

 4     committed, and in doing so I will address Your Honours' question

 5     regarding his involvement in the disarming process.

 6             Turning first to Lukic's role as head of the MUP staff.  The

 7     Chamber found that Lukic held this position from mid-June 1998 to

 8     June 1999; this is Volume III, paragraphs 945 through 1050.  The MUP

 9     staff was the entity in charge of planning, organising, controlling and

10     directing the work of MUP forces in Kosovo, Volume III, paragraph 1012.

11     It was based in Pristina.

12             The Chamber correctly found that as head of the MUP staff, Lukic

13     was the de jure and de facto commander of MUP forces deployed in Kosovo,

14     including those units involved in combat activities; this is Volume III,

15     paragraph 1131.  In this capacity Lukic was directly involved in the

16     planning process and he was also the person responsible for the use and

17     engagement of MUP forces in the province, Volume III, paragraphs 1118 --

18             JUDGE LIU:  Excuse me, it seems that we have a technical problem.

19     Judge Ramaroson has no translation.

20             Is that soft?  Everything's okay.  Yes.  I'm sorry about that.

21     You may proceed.

22             MS. KRAVETZ:  No problem, Your Honour, I'll continue.

23             I was referring to Lukic's role as head of the MUP staff.  And I

24     mentioned that in this capacity he was directly involved in the planning

25     process and he was also the person responsible for the use and engagement

Page 537

 1     of MUP forces in the province; and this is Volume III, paragraph 1051,

 2     1118 and 1131.  He was also the person responsible for ensuring that the

 3     day-to-day operations of MUP forces in Kosovo were conducted in

 4     accordance with the overall plans and policies set by the MUP leadership

 5     in Belgrade and by Milosevic, Volume III, paragraph 1131.  And he

 6     co-ordinated and planned joint operations with the VJ, in particular with

 7     his counterpart in the VJ, General Pavkovic, which took place from

 8     March 1999 onwards, Volume III, paragraph 1118 and 1132.

 9             If I can respond briefly to my colleagues' submissions this

10     morning regarding the Chamber's findings on Lukic's role and authority.

11     From having heard their submissions today, what is apparent is that

12     nothing has changed.  At trial Lukic argued that he was a general in the

13     police with no authority over MUP units in Kosovo and that he was the

14     head of a weak body called the MUP staff.  However, the Chamber's

15     findings that I have just outlined are based on a careful assessment of

16     the evidence on the role and authority of the MUP staff which can be

17     found at paragraphs 947 and -- through 1051 of Volume III.

18             One of the pieces of evidence the Chamber considered was Lukic's

19     own explanation of his role and responsibilities.  He was, in fact, the

20     person best placed to explain the role of the MUP staff, and in

21     Volume III, paragraph 1013, the Chamber referred to his explanation in

22     his interview with Prosecution officials in which he explained that the

23     role of the MUP staff was to co-ordinate, plan, and direct MUP

24     organisational units primarily in the task of curbing terrorism.

25             In that same paragraph the Chamber also referred to Lukic's role

Page 538

 1     vis-a-vis special police units, which are referred to as PJPs in the

 2     judgement, and it noted that Lukic himself said that these units had dual

 3     responsibility towards Obrad Stevanovic and also responded to the MUP

 4     staff.

 5             In addition, the Chamber noted that in promoting or recommending

 6     Lukic for promotion, MUP Minister Stojiljkovic commended him for his

 7     command -- successful command and control of MUP units engaged in the

 8     prevention of terrorism in Kosovo, and MUP Minister Stojiljkovic clearly

 9     knew and had a clear impression of what were the roles and

10     responsibilities of General Lukic in Kosovo.

11             By challenging the Trial Chamber's findings on his role and

12     authority on appeal, Lukic merely repeats his trial submissions without

13     showing how the Chamber erred.  His challenges on this point should be

14     rejected.

15             I turn now to Lukic's contribution to the JCE and I will deal

16     first with his involvement in the planning and co-ordination of MUP

17     operations and then turn to his role in the arming and disarming process.

18             Lukic was actively involved in the planning and co-ordination of

19     MUP operations during the 1999 campaign, paragraphs 1131 and 1132 of

20     Volume III.  The Chamber found that the NATO bombing provided JCE members

21     with an opportunity - for which they had been waiting and preparing - to

22     carry out the common plan, Volume III, paragraph 92.  That the MUP was

23     preparing for a large-scale offensive in the spring of 1999 is evidenced

24     by discussions at the MUP staff on 17th February 1999, and this meeting

25     at the MUP staff is discussed in Volume III, paragraph 996.  On that

Page 539

 1     date, Lukic chaired a meeting which was attended by the highest MUP

 2     leadership from Belgrade, MUP Minister Stojiljkovic, the heads of both

 3     branches of the MUP, Vlastimir Djordjevic and Radomir Markovic as well as

 4     by assistant minister Obrad Stevanovic and by MUP commanders in Kosovo.

 5     And if we could have slide one up on the screen.

 6             Up on the screen we have the minutes of this meeting which are

 7     discussed in Volume III, paragraph 996, and we see - and these are words

 8     of Lukic that are highlighted at the top of the page - we see that Lukic

 9     sets out the situation in Kosovo and he reports on plans of the MUP staff

10     to carry out three mopping-up operations in the areas which are described

11     in the slide and he also refers to the personnel that has been allotted

12     for these operations.

13             In addition, he reports that a meeting of the MUP staff will be

14     held in the coming days with all commanders of police unit detachments

15     for further consultation about their engagement.  And if we could have

16     slide two up on the screen.

17             At this same meeting MUP Minister Stojiljkovic addressed those

18     present, and in his conclusions referring to an eventual attack by NATO

19     he said:

20             "Within two or three days of an attack, we have to put our plans

21     in motion and use the time to clear the territory from terrorists."

22             And the minutes of this meeting are Exhibit P1990 and these

23     comments are on page 3, and he continued by setting out the forthcoming

24     tasks as we see on the slide at the bottom.  We can remove the slide.

25             The Chamber found that the areas identified by Lukic at the

Page 540

 1     17th February 1999 meeting for these actions were the same ones envisaged

 2     by Lazarevic's Grom 3 order of 16th February 1999, confirming joint

 3     planning and co-ordination between the VJ and MUP leadership; and this is

 4     Volume I, paragraphs 1015 and 1039.

 5             The large-scale plans which the VJ and the MUP prepared in

 6     February 1999 were implemented down both chains of command in late

 7     March 1999 through a series of Joint Command orders, Volume I,

 8     paragraph 1017.

 9             During the implementation of these operations, Lukic worked

10     closely with Joint Command members Pavkovic and Sainovic in co-ordinating

11     the actions of the MUP and the VJ, Volume III, paragraphs 1118 and 1132.

12     These joint MUP and VJ operations could not have taken place without the

13     direct involvement of Lukic, head of the MUP staff.  Using the MUP staff,

14     Lukic implemented the decisions and tasks of the Joint Command involving

15     MUP units down the MUP chain of command, and this is Volume I,

16     paragraphs 1033 through 1042; and Volume III, paragraphs 973 to 975 and

17     1132.  Lukic's role was to ensure the participation of MUP units in joint

18     operations, Volume III, paragraph 1118 and 1132.  This is why the Chamber

19     found Lukic to be an important member of the JCE, Volume III,

20     paragraph 1131.

21             As Mr. Kremer explained on Monday, the joint MUP and VJ

22     operations which took place from late March onwards resulted in a

23     campaign of terror and violence against the Kosovo Albanian population.

24             Throughout the duration of this campaign, Lukic was on the ground

25     in Pristina and this allowed him to monitor MUP activities closely, and

Page 541

 1     for reference, Your Honours, Volume III, paragraphs 999 to 1001, 1004,

 2     1006, 1009 and 1010, and paragraph 1040.  Lukic's constant presence on

 3     the ground also made him aware of the ill-treatment and the forcible

 4     displacement of scores of civilians by Serb forces, Volume III,

 5     paragraph 1124.

 6             The MUP and VJ operations continued into April and May 1999.

 7     Lukic's interventions at MUP staff meetings and his instructions to MUP

 8     commanders during this period demonstrate that he actively supervised

 9     these operations, and for the detail I refer Your Honours to Volume III,

10     paragraphs 999 to 1011.

11             Together with VJ forces, MUP units, which Lukic commanded,

12     executed the JCE's plan with brutal efficiency, displacing over 700.000

13     Kosovo Albanian civilians in a span of two months.  VJ and MUP units

14     acted with a high degree of co-ordination in expelling the

15     Kosovo Albanian population, and this is in Volume I, paragraphs 1033 to

16     1043.  Despite his knowledge of the systematic nature of the crimes,

17     Lukic continued to engage MUP units in joint operations with the VJ

18     during the 1999 campaign, clearly intending for these crimes to take

19     place, Volume III, paragraph 1129.

20             I turn now to Lukic's role in the arming of non-Albanian

21     civilians.

22             Yes, Your Honour.

23             JUDGE LIU:  Well, I believe that you are talking about arming and

24     disarming together.  When you discuss Mr. Lukic's involvement in

25     disarming, would you please point out the specific paragraph in the

Page 542

 1     judgement as well as the specific evidence admitted during the trial

 2     related to this issue.  Thank you.

 3             MS. KRAVETZ:  Yes, Your Honour.  I intend to do that.

 4             So turning first to Lukic's role in the arming process and I will

 5     later deal with the disarming well.  Months in advance of the 1999

 6     campaign, Lukic armed, trained, and organised non-Albanian civilians.

 7     Lukic then used armed locals during the attacks that took place from

 8     March 1999 onwards.

 9             As my colleague Mr. Menon explained on Tuesday, between July 1998

10     and March 1999, the non-Albanian population in Kosovo was armed and

11     organised into so-called RPOs, or local defence units; this is Volume I,

12     paragraph 787.  The Chamber found that these units were under the general

13     command and control of the MUP and of Lukic, Volume I, paragraph 777; and

14     Volume III, paragraph 1067.  And Lukic's involvement in the arming

15     process throughout this period is discussed in Volume III,

16     paragraphs 1061 through 1067.

17             Now my colleagues this morning have referred to the arming

18     process and have characterised it as a legal distribution of weapons and

19     they've characterised the disarming as a voluntary surrender of illegal

20     weapons.  The Chamber, in fact, considered the legality of the arming

21     process, but it noted that the primary issue in relation to both the

22     arming and the disarming was the fact that it was carried out upon ethnic

23     lines and the Chamber's findings were -- that sum up its analysis are in

24     Volume III, paragraph 72.  And what does this mean that it was carried

25     out on ethnic lines?  The Chamber found that weapons were distributed to

Page 543

 1     only one ethnic group, these are non-Albanians, primarily Serbs; and that

 2     the majority of the Serb population was provided with weapons.  It also

 3     found that the disarming only targeted ethnic Albanians and that the

 4     majority of the non-Albanian [sic] population was not part of the KLA.

 5     An additional factor the Chamber considered was the secrecy of the

 6     process, and my colleague this morning has characterised the arming as a

 7     public process that was -- that everyone was aware of.

 8             In paragraph 65 of Volume III, the Chamber pointed to some

 9     comments made by Lukic himself in relation to the arming process and

10     these are comments made at a 2 November 1998 meeting.  At this meeting,

11     Lukic directed SUP chiefs and MUP commanders to conceal the fact that the

12     Serb population had been armed from KVM verifiers.  And, in addition, he

13     instructed those present that armed Serbs were to be directed to deny

14     that Serbs were armed in the villages if asked by KVM members and to use

15     the excuse that only members of village guards were armed.  Clearly, by

16     making these remarks, Lukic himself did not consider the fact that the

17     armed population had been armed as a public process, as the Lukic Defence

18     suggests.

19             At the 17th February meeting which I've discussed when

20     preparations were made for a large-scale offensive, Lukic reported that

21     members of the staff had held meetings with all RPOs and that RPOs in

22     nearly all villages inhabited by Serbs were active and this is P1990,

23     page 1, and it's the same exhibit that we saw earlier on a slide.

24             When the 1999 campaign commenced, Lukic used armed locals in

25     operations.  His interventions at MUP staff meetings in April and

Page 544

 1     May 1999 confirm the involvement of RPOs in these operations, Volume III,

 2     paragraph 1066.  And as Your Honours have heard from my colleagues

 3     earlier this week, in Volume II of its judgement, the Chamber found that

 4     in some municipalities armed locals did, in fact, take part in actions

 5     with the MUP and the VJ aimed at expelling Kosovo Albanian civilians from

 6     their homes, Volume III [sic], paragraph 48, 432, 888, and 944.

 7             I turn now to the disarming of the ethnic Albanian population and

 8     at the break I distributed a table and I ask that it be provided to the

 9     Bench.  And while that is being done, just a correction for the record,

10     the references I just gave regarding volume -- it should state

11     "Volume II" instead of "Volume III."  I note that at line 14 of page 62

12     the transcript incorrectly notes "Volume III," and it's probably because

13     I misspoke.

14             Turning to the disarming of ethnic Albanians, just as he had been

15     involved in the arming process, Lukic also participated in disarming the

16     Kosovo Albanian population, and this finding is at Volume III,

17     paragraph 1121.  By disarming ethnic Albanians in the months preceding

18     the 1999 campaign, Lukic rendered them defenceless to the Serb attacks

19     that took place from late March 1999 onwards.

20             Now, Your Honours have asked a question regarding Lukic's

21     involvement in the disarming process and before I address it I will just

22     read it out for the record.  The question is:

23             "Discuss evidence on the record, if any, showing Lukic's

24     involvement in the disarming of the Kosovo Albanian population."

25             The Chamber's finding that Lukic participated in the disarming

Page 545

 1     process is supported by Joint Command documents on the record.  These

 2     documents show that MUP units under Lukic's command carried out the

 3     disarming in 1998 and that he monitored this process closely.

 4             Now, Your Honours have been handed a table of exhibits relating

 5     to Lukic's involvement in the disarming process and I ask you to turn to

 6     this table.  It has several categories of exhibits and I plan to deal

 7     with them briefly.  The first category of exhibits on this table are 11

 8     excerpts from P1468, which are the notes of meetings of the Joint Command

 9     and these are all contained on page 1 of the table.  And contrary to my

10     submission of the Defence -- to the submissions of the Defence, these

11     excerpts show that in the period between August and October 1998, Lukic

12     provided regular updates of the disarming of ethnic Albanian villages

13     being carried out by MUP units.  And if I can take Your Honours to one of

14     these excerpts as an example and this is the one dated

15     10th September 1998, and it's towards the middle of the page.  And the

16     relevant reference is P1468, page 100.  I note that this excerpt is

17     referred to in Volume III, paragraph 1029.

18             We can see from the relevant excerpt on this table that Lukic

19     reports about the disarming of six ethnic Albanian villages, and he

20     notes:

21             "But it's not enough and it continues tomorrow ..."

22             I should note for clarity, Your Honours, that in paragraph 1029

23     this meeting of -- that Lukic -- at which Lukic is reporting this

24     information is incorrectly dated as 1st September 1998 and it should be

25     10th September.

Page 546

 1             I will not deal with the remaining excerpts from P1468, but I

 2     will read all the relevant page numbers out for the record.  And the

 3     relevant references from this exhibit are:  P1468, pages 48, 49, 52, 77,

 4     92, 97, 100, 106, 110, 131, and 139.

 5             Turning to the second category of documents on this table, these

 6     are Joint Command operative reports from the period of October and

 7     November 1998, and these are listed on both sides of the table that has

 8     been provided to Your Honours.  These reports show that MUP units were

 9     actively engaged in disarming ethnic Albanian villages and that this

10     disarming process was to continue.  And if I can take Your Honours to one

11     example and this is the second one from the bottom of page 1, and it's

12     the reference -- exhibit reference is P1203, and it's dated

13     15th October 1998.  And this document is referred to in Volume III,

14     paragraph 58 of the judgement.

15             We see here in the excerpt on the table that under the heading

16     number III (b) engagement of MUP units, the -- IV refers to the fact that

17     MUP units are collecting weapons from Siptar or ethnic Albanian villages

18     which have shown a willingness to surrender them.  And under the heading

19     IV, proposal for further engagements of the MUP, the report notes that

20     this collection of weapons will continue.

21             I won't refer to all the different Joint Command operational

22     reports on this table, but I will read them -- the relevant exhibit

23     numbers and page numbers out for the record.  The relevant references are

24     P1203, pages 5 and 8; P1206, pages 4 and 7; P1204, pages 5 and 7; P1197,

25     pages 3 and 6; and P1198, pages 4 and 6.

Page 547

 1             The last exhibit on this table that I want to refer to is on

 2     page 2, and if I can ask Your Honours to turn to that, this is P2166, and

 3     it's an exhibit dated 29th October 1998.  And in this exhibit is a record

 4     of a meeting that took place in Belgrade on that date and it's referred

 5     to in the Trial Chamber's judgement Volume I, paragraph 997, and it's

 6     also referred to in Volume I, paragraphs 1097 to 1195.

 7             Now, this meeting was attended, as the minutes show, by the

 8     highest Serb political military and police leadership.  All three JCE

 9     members in this case were in attendance.  And the excerpt we have on the

10     table is a report that is provided by General Pavkovic at this meeting,

11     where he presented an overview of the plan for the suppression of

12     terrorism which was implemented in the summer of 1998.  And as we can see

13     from this excerpt, one of the tasks that General Pavkovic notes formed

14     part of this plan was number 7, disarming all Siptar or Albanian villages

15     which are known to be armed.

16             If I can state -- continue discussing this meeting but ask that

17     we turn to the next slide.  What we have on the screen is a copy of the

18     same exhibit, P2166, and this is a continuation of Pavkovic's comments --

19     remarks at that meeting.  And on pages 4 and 5 he provides a more

20     detailed overview of the implementation of the plan.  On page 5 - and

21     this is the portion that's been highlighted - he -- under number 8 he

22     refers to the weapons collected and the localities from where these

23     weapons have been collected.  And if I can draw Your Honours' attention

24     to the portion that appears in red on the screen and I'll read the quote.

25     It says:

Page 548

 1             "Sixty-six villages still need to be disarmed and some 4.000 to

 2     5.000 guns will be seized.  The villages did not take part in the

 3     terrorist operations."

 4             Now, my colleagues today have suggested that the disarming

 5     process mainly targeted KLA villages and that it was voluntary; however,

 6     what these remarks show is that villages which did not take part in

 7     terrorist operations were also disarmed by the MUP.

 8             In response to Your Honours' question on Lukic's involvement in

 9     the disarming, these are the relevant references on the record,

10     Your Honour.

11             JUDGE LIU:  Thank you.

12             MS. KRAVETZ:  To conclude and returning to question number 10,

13     having planned and co-ordinated MUP operations, including joint

14     operations with the VJ, which led to the commissions of the crimes

15     charged, Lukic made a significant contribution to the JCE.

16             Moreover, his contribution is grounded on conduct that occurred

17     during the period in which the crimes were perpetrated.  It is clear from

18     the evidence I've discussed that Lukic was also actively involved in

19     preparing for the implementation of the criminal plan and that the

20     preparatory work he engaged in furthered the common purpose.  For the

21     reasons I've outlined, the Defence's challenges to the Chamber's findings

22     on Lukic's contribution to the JCE should therefore be dismissed.

23             Those are our submissions, Your Honours, in relation to the two

24     questions that I was addressing, the actus reus question and also the

25     disarming -- question dealing with Lukic's involvement in the disarming

Page 549

 1     process.  Unless Your Honours have questions for me, I will yield the

 2     floor to my colleague, Mr. Wood -- oh, we're having a break, I'm told.

 3             JUDGE LIU:  Judge T has a question to ask you.

 4             MS. KRAVETZ:  Yes.

 5             JUDGE TUZMUKHAMEDOV:  Thank you.  Ms. Kravetz, counsel, I'm here.

 6             MS. KRAVETZ:  I can't see you behind the pillar but I'll move

 7     over.

 8             JUDGE TUZMUKHAMEDOV:  It is a very important pillar.

 9             MS. KRAVETZ:  It is.  It is.

10             JUDGE TUZMUKHAMEDOV:  You referred to in your presentation -- I

11     should have asked this earlier but I just didn't want to interrupt you.

12     You referred in your presentation - as did your colleagues on your side

13     of the aisle during the course of this week - to the displacement of over

14     700.000 Kosovo Albanians through a campaign of terror and violence.

15     Could you identify where in the trial judgement the Chamber found that

16     this displacement was entirely attributable to that campaign.

17             To put it differently, did the Trial Chamber specifically exclude

18     the possibility that other factors during the war may have contributed to

19     the displacement of at least a portion of those over 700.000 humans?

20     Thank you.

21             MS. KRAVETZ:  Thank you, Your Honour.  Well, the Chamber

22     conducted a very thorough analysis of the -- of what the evidence of what

23     happened on the ground, and this is contained in Volume II of the

24     judgement.  And it is based on that analysis of the crimes that happened

25     and the reasons that were provided by the persons in the different

Page 550

 1     localities that were expelled by Serb forces that it reached its findings

 2     which were referred to earlier this week by my colleague, Mr. Kremer, on

 3     the pattern of crimes.  And the Chamber noted, when it was dealing with

 4     the pattern of crimes, that none of the witnesses who testified who came

 5     from 13 different municipalities in Kosovo and from all sorts of walks of

 6     life, none of them indicated that they had left because of the NATO

 7     bombing or because they were forced by the KLA.  They clearly noted that

 8     they had been forcibly expelled from their homes by MUP and VJ forces and

 9     other forces acting together with these forces.  So the Chamber's finding

10     that this was the reason for the displacement is based on this analysis

11     of the evidence.  And the Chamber did consider whether NATO was the cause

12     of the displacement or whether the KLA campaign was the cause of the

13     displacement, but except for two localities where the Chamber did find

14     that KLA members had told villagers to flee before Serb forces arrived,

15     in the remaining of the localities this was not the reason why the

16     population left en masse and headed towards the border.  I don't know if

17     that answers Your Honour's question.

18             JUDGE TUZMUKHAMEDOV:  Yes, as posed it does.  Thank you.

19             MS. KRAVETZ:  Thank you.

20             JUDGE LIU:  Well, we still have less than four minutes to go in

21     the morning sitting, so I'm in your hands whether you would like to

22     continue your response for the last four minutes or we'll resume in this

23     afternoon's session, and in this way I can assure you that I'll make up

24     for the time you lost for this morning's session.

25             MS. KRAVETZ:  Your Honour, my suggestion would be to break at

Page 551

 1     this time, and that way my colleague, Mr. Wood, can just go through his

 2     submissions without any interruptions.

 3             JUDGE LIU:  It's a wise choice.

 4             MS. KRAVETZ:  Thank you.

 5             JUDGE LIU:  Thank you.

 6             We are adjourned until 2.30 this afternoon.

 7                           --- Luncheon recess taken at 12.56 p.m.

 8                           --- On resuming at 2.29 p.m.

 9             JUDGE LIU:  Good afternoon.

10             Mr. Wood, you may continue the response of the Prosecution.

11             MR. WOOD:  Thank you, Mr. President.

12             As Ms. Kravetz told you this morning, I'll be dealing with

13     Your Honours' questions with regard to General Lukic's mens rea.  That

14     means with regard to the questions I'll be answering Your Honours' eighth

15     and 11th questions and the mens rea component of the tenth question.

16     I'll also address a few smaller points today raised by counsel for

17     General Lukic and their remarks.

18             Now, before I start, though, Your Honours I'd like to provide

19     some citations in support of Ms. Kravetz' response to the last question

20     before the break to show that the Chamber found that the campaign of

21     terror and violence resulted in the forcible displacement of 700.000

22     Kosovo Albanian civilians.  And for the record those are Volume II,

23     paragraphs 1150 and 1175 to 78 [sic]; and Volume III, paragraphs 45, 95,

24     and 1173.

25             So turning to the questions then, starting with the tenth

Page 552

 1     question, and I think Mr. Ivetic may have referred to that as the third

 2     question.  Just for the sake of the record, Your Honour, that's the one

 3     I'll be addressing.  Now, I note that you've heard this question answered

 4     twice now by Prosecution counsel, Your Honours, first by

 5     Ms. Martin Salgado and by Ms. Monchy on Monday and by Mr. Schneider on

 6     Tuesday.  It won't surprise you to hear that my answer today is the same.

 7     Though the mens rea of a JCE member cannot be fulfilled prior to the

 8     existence of the common purpose of the joint criminal enterprise, it can

 9     be inferred from his knowledge of crimes committed before the joint

10     criminal enterprise came into existence.

11             As Ms. Martin Salgado explained and contrary to counsel's remarks

12     this morning, support for this as a matter of law can be found in the

13     Krajisnik appeal judgement at paragraphs 200 to 204 and the Krajisnik

14     trial judgement at paragraphs 925 and 929.

15             So what does this mean for General Lukic's case?  As the Chamber

16     properly found, General Lukic's JCE intent is clear from his knowledge of

17     crimes and continuing participation in the campaign of terror and

18     violence starting in March 1999 and it can be properly inferred from his

19     detailed knowledge of crimes committed by his MUP subordinates in 1998

20     and by other evidence.

21             Now, I'll elaborate that -- on that more, Your Honours, in

22     answering the 11th question which I think was referred to by my colleague

23     across the aisle as the fourth question.  And for the record since this

24     is the first time this has been dealt with by the Prosecution today I'll

25     read that question into the record, that is:

Page 553

 1             "Discuss whether and under what circumstances the mens rea under

 2     JCE I for deportation and other inhumane acts (forcible transfer) may be

 3     inferred from the accused's knowledge of crimes committed in 1998,

 4     including crimes other than deportation and other inhumane acts."

 5             Now, again, Your Honours, as Ms. Martin Salgado has explained on

 6     Monday, the Chamber can draw such an inference.  And under the

 7     circumstances of General Lukic's case, this is the only reasonable

 8     conclusion on the totality of the evidence from both 1998 and 1999 as the

 9     Trial Chamber properly found in paragraphs 1117 through 1130 of

10     Volume III of the trial judgement.

11             In short, Your Honours, because General Lukic was aware that

12     various crimes arising from joint MUP-VJ operations resulted in massive

13     displacements in 1998, he knew that he could use the same types of

14     operations, using the same troops targeting the same ethnic group to

15     achieve the same result in 1999.  The fact that he continued to work to

16     ensure the co-operation of the joint MUP-VJ operations throughout 1999

17     leads to the reasonable inference that he intended the massive forcible

18     displacements starting on 24 March 1999.

19             So what did General Lukic know in 1998?  Like my colleagues who

20     argued the Pavkovic and Lazarevic's responses, I've created a table to

21     summarise this evidence for Your Honours' reference, and I think that's

22     been distributed or is about to be.  And again, as with my colleagues who

23     argued the responses for Pavkovic and Lazarevic, this is for

24     Your Honours' reference.  I'll refer to only a few of those during my

25     remarks today.

Page 554

 1             The Chamber found that General Lukic knew that there were serious

 2     allegations of criminal activity by MUP forces in Kosovo directed against

 3     the Kosovo Albanian population.  Now, that's the Chamber's finding at

 4     Volume III, paragraph 1086.  He knew that these crimes - and these crimes

 5     included arson, murder, and forcible displacement - arose out of joint

 6     MUP-VJ operations that he helped to co-ordinate, that's Volume III,

 7     paragraphs 1012 and 1080 through 1084.

 8             For example, acts of arson were regularly discussed at

 9     Joint Command meetings that Lukic attended, including on 7 and

10     12 August 1998, and I refer Your Honours to Volume III, para 1080 for

11     that finding.

12             Further, Lukic was also informed by members of the international

13     community about instances of arson and other crimes.  For example,

14     international monitor Shaun Byrnes told Lukic that in August and

15     September 1998 his team observed on an almost daily basis police units

16     burning villages, destroying crops, killing farm animals, intimidating

17     Kosovo Albanian citizens, and driving them from their homes; that's

18     Volume III, paragraph 1082.

19             Now, Lukic also learned in September 1998 of the murders

20     committed in the area of Donje and Gornje Obrinje, and that they resulted

21     from joint MUP-VJ operations, that Lukic, as head of the MUP staff, was

22     helping to co-ordinate and plan; that's Volume III, 1021, 1081.

23             Now specifically, Your Honours, this incident was discussed at a

24     Joint Command meeting that Lukic attended on 4 October 1998; that's at

25     Volume III, para 1081.  Also as my colleague across the aisle mentioned

Page 555

 1     this morning in his remarks, Human Rights Watch published a detailed

 2     report about this incident.  He is right it came out in 1999, it came out

 3     in February 1999, that is before the crimes in the indictment and during

 4     the same month the MUP was involved in planning the campaign, as

 5     Ms. Kravetz has explained this morning.  This report was distributed to

 6     the MUP as well as to the Presidency of Serbia, the Federal Presidency of

 7     Yugoslavia, the republican and federal ministries of justice, and to the

 8     VJ.  It was also given to Serbian and Albanian-language media in Kosovo.

 9             Critically, Your Honours, Lukic knew that these crimes were

10     driving hundreds of thousands Kosovo Albanians from their homes.  On

11     September 23rd, 1998, for example, the Security Council noted that it was

12     "gravely concerned" about "the excessive and indiscriminate use of force

13     by Serbian security forces and the Yugoslav army," which according to the

14     Secretary-General's estimates had resulted in the displacement of more

15     than 230.000 persons from their homes.  That's at Volume I, para 916;

16     that's also at Volume III, paragraph 443 and at 677.  The Chamber found

17     that Lukic was aware of these allegations; that's at Volume III,

18     paragraph 1120.  He was present at a Joint Command meeting in which this

19     resolution was discussed; that's Volume III, para 677.

20             Based on the events of 1998 then, Lukic knew that he could count

21     on the joint MUP-VJ operations to expel hundreds of thousands more

22     Kosovo Albanians from their homes in 1999.  That he continued to

23     co-ordinate these same operations using these same troops to execute the

24     campaign of terror and violence in 1999, the campaign at the heart of

25     this JCE, Your Honours, shows that he intended to achieve the same

Page 556

 1     results:  The massive displacement and forcible transfer of

 2     Kosovo Albanians.

 3             Now, to be clear, Your Honours, contrary to the submission of my

 4     learned colleagues this morning, the Chamber did not rely solely on

 5     evidence from 1998 to determine Lukic's intent in 1999.  In concluding

 6     that Lukic shared the common criminal purpose of the joint criminal

 7     enterprise, the Chamber relied on the totality of the evidence, including

 8     his continuing MUP-VJ crimes in 1999 -- his knowledge of continuing

 9     crimes in 1999.

10             So let's look at that.  The Chamber found the MUP staff received

11     a steady stream of reports in 1999, including from 24 March 1999; that's

12     at Volume III, para 1089.  And this is a finding that's confirmed by

13     information included in Lukic's own orders and reports.  For example, on

14     the 15th of April, 1999, Lukic issued a dispatch noting that some of his

15     MUP intermediate commanders were "tolerating massive scale departures of

16     civilian population."  That's a finding at Volume III, paragraph 1094.

17     And on the 4th of May, 1999, Lukic attended a meeting at a villa in

18     Belgrade at which information was presented that the security forces of

19     the VJ had dealt with numerous cases of violence, killings, pillage, and

20     other crimes.  He included information from this meeting in an order to

21     his subordinates; that's at Volume III, para 1095.  The Chamber will

22     recall of course that as a JCE member, the crimes of the VJ are

23     attributable to General Lukic; that's at Volume III, para 1132.

24             Not only that, Your Honours, but crimes were often discussed at

25     MUP staff meetings in 1999 as noted at paragraph 1126 of Volume III of

Page 557

 1     the judgement.

 2             So as in 1998, in 1999 Lukic was informed of the massive

 3     displacement of Kosovo Albanians.  For example, he reported on

 4     May 1st, 1999, that "between 24 March and 30 April 1999 a total of

 5     715.158 persons belonging to the Siptar national minority left the

 6     territory ..." and that's a finding that's contained in a lot of the

 7     citations I mentioned at the beginning of my presentation.  That's also

 8     specifically at Exhibit P1693.

 9             So under these circumstances, Your Honours, the Chamber properly

10     found that Lukic, along with Sainovic and Pavkovic, intended the forcible

11     displacements, including deportation and forcible transfer, that occurred

12     during the indictment period.  It was also reasonable to conclude that

13     under these circumstances, Lukic's orders admonishing his subordinates to

14     not commit crimes could not have been genuine as they found at

15     Volume III, para 1129.

16             Turning then to Your Honours' eighth question relating to

17     JCE III, which is, for the sake of clarity of the record:

18             "Discuss, with reference to the record, whether there would be

19     any effect on Lukic's appeal regarding his convictions pursuant to

20     JCE III, if the Appeals Chamber were to accept the Prosecution's argument

21     that the Trial Chamber applied an incorrect mens rea standard for JCE III

22     liability."

23             The answer to this question, Your Honours, is that there would be

24     no effect.  As my colleagues have already explained in their responses to

25     the appeals of Sainovic and to Pavkovic, the Trial Chamber here applied

Page 558

 1     an incorrect and more restrictive probability standard in assessing JCE

 2     III liability -- JCE foreseeability, I'm sorry, rather than the correct

 3     and less-restrictive possibility standard from para 365 of the Brdjanin

 4     appeal judgement, paragraph 33 of the Blaskic appeal judgement, as

 5     affirmed by the Appeals Chamber in the 25 June 2009 decision on

 6     Prosecution's motion appealing Trial Chamber's decision on JCE III

 7     foreseeability from the Karadzic case.

 8             So in General Lukic's case then, the same findings that show that

 9     he knew that murder and destruction would probably be committed in the

10     execution of the campaign of terror and violence also show that he knew

11     that murder and destruction as acts of persecution were a possible

12     consequence of the execution of this campaign.  And those findings, for

13     your reference, are at paragraphs 1134 and 1136 of Volume III of the

14     trial judgement.

15             Now, in his appeal, Lukic seems to be arguing that the

16     Appeals Chamber should apply an even higher certainty standard by arguing

17     that he cannot be convicted of crimes for which he had no knowledge.  For

18     example, in his challenge to his JCE III convictions for his -- for the

19     murders in Djakovica, he argues there is no evidence that he "personally

20     knew" of the murders or of the efforts to conceal the bodies afterwards,

21     and that's at his brief in paragraph 700.  The question, Your Honours, is

22     not whether he knew of these crimes, but whether it was foreseeable to

23     him that they were a possible consequence of the execution of the JCE of

24     which he was a member.

25             And that concludes my answer to the eighth question,

Page 559

 1     Your Honours.  I'll turn then to a few minor points.  I see you have a

 2     question, Mr. President.

 3             JUDGE LIU:  Yes, yes.  Concerning with the murder in Djakovica, I

 4     would like to know if the victims are combatants or civilians?

 5             MR. WOOD:  Well, the Chamber found that -- without the references

 6     to the trial judgement at hand, Your Honour, the Chamber found that

 7     those -- that constituted an act of persecution that was foreseeable to

 8     him and that resulted in his conviction of JCE III.  Therefore, it

 9     follows that the victims of the murders in Djakovica were civilians,

10     Your Honour.

11             JUDGE LIU:  Thank you.

12             You may proceed.

13             MR. WOOD:  So turning briefly then to the matter of

14     Exhibit 6D614, which Judge T asked about this morning.  Since it came up

15     as a question, I'll address that briefly.  The Trial Chamber properly

16     exercised its discretion in denying admission of this 789-page document,

17     where it found that the document lacked sufficient indicia of reliability

18     to be tendered from the bar table as hearsay evidence.  Now, as counsel

19     for General Lukic mentioned this morning, it was a summary of documents.

20     The underlying documents were not put before the Trial Chamber, so the

21     Trial Chamber found it could not assess the accuracy of these summaries.

22     Counsel for General Lukic today has failed, as he has in his brief, to

23     explain how the Chamber abused its discretion under these circumstances

24     and how this decision has had any impact on the judgement or his

25     conviction.  And I could refer Your Honours to the decision on this point

Page 560

 1     of 2 July 2008 of the Trial Chamber; that's paragraphs 27 to 31.  We also

 2     address this in our brief as well, Your Honours.

 3             In summation, Your Honours, the Trial Chamber properly convicted

 4     Lukic of deportation, inhumane acts, murder, and persecutions.  His

 5     challenges in his appeal express his profound disagreement with the

 6     Trial Chamber's findings, but they fail to show any error.  The

 7     Appeals Chamber should dismiss General Lukic's appeal, it should affirm

 8     his convictions, and it should adjust his sentence in accordance with the

 9     Prosecution appeal.

10             And before I sit down, Your Honours, I do have a couple of

11     corrections for earlier transcript references, specifically today's

12     temporary transcript page 54, line 18, it reads "945, 1050," that should

13     be "945 through 1050."  And at transcript 61 of the temporary transcript

14     today at line 13 it reads "the majority of the non-Albanian population

15     was not part of the KLA," that should read "the majority of the Albanian

16     population was not part of the KLA."

17             And, Your Honours, Mr. President, in reference to your question

18     about Djakovica, I would refer you to Volume II, paragraphs 1197 to 1198

19     for information about the Djakovica murders.  And I can mention briefly

20     that we won't be addressing sentencing today, Your Honours.  The

21     Prosecution's view is that General Lukic's sentence was too short, as has

22     been argued in our appeal.  You'll hear more about that tomorrow.

23             And unless there's further questions, I'll conclude,

24     Your Honours.

25             JUDGE LIU:  Well, it seems to me there's no questions from the


Page 561

 1     Bench at this stage.

 2             MR. WOOD:  Thank you, Your Honour.

 3             JUDGE LIU:  Thank you.  I think that concludes the response from

 4     the Prosecution; right?

 5             MR. WOOD:  Yes, Your Honours, that does.

 6             JUDGE LIU:  Thank you very much.

 7             Any reply?

 8             MR. IVETIC:  There is, Your Honours, with your leave.

 9             JUDGE LIU:  You may proceed.

10             MR. IVETIC:  Thank you, Your Honours.

11             The first thing that I have to say is that the Prosecution

12     response seems to just rely on paragraphs from the judgement instead of

13     the evidence.  This is insufficient at this stage where the judgement is

14     challenged.  The OTP has no answer for our arguments that portions of the

15     judgement are in contradiction with one another.  What is their position

16     as to the finding of mitigation evidence on the one hand and then the

17     negation of the same in the same judgement?  What is their position of

18     the disparate treatment between other appellants and Lukic?  Simply, the

19     Prosecution would like to ignore findings that are not favourable to

20     them, but a judgement cannot be read that way on appeal.  If a judgement

21     cannot stand on its own due to contradictions, it is unsafe and must be

22     reviewed.

23             The Prosecution has not and cannot rebut the clear error as to

24     mitigation evidence from the judgement that we have summarised and

25     presented for you.  The judgement must be reversed for this reason on its

Page 562

 1     own.

 2             Moving along further.  The Prosecution says we have not changed

 3     our arguments, the factual story is the same as at trial.  Well, how on

 4     earth how could it be changed?  I don't understand what they're talking

 5     about.  Obviously the evidence cannot be changed by either party, and we

 6     stand by our position that the evidence at trial, just as now, does not

 7     support the findings in the judgement and that acquittal is appropriate.

 8             Your Honours asked the Prosecution to provide specific reference

 9     to paragraphs of the judgement as to the question relating to evidence of

10     Sreten Lukic's involvement in the disarming of the population.

11     Throughout the rest of their response, all they did was cite paragraphs

12     from the judgement.  But for this specific request, they did not give you

13     citations to the judgement.  This highlights the error of the judgement

14     as I detailed for you earlier today.

15             You need to recall at this time that the voluntary surrender of

16     arms were under way, was a time when all parties were working on peace

17     accords.  This is the area -- the time-period known as the

18     October Accords when there were multiple peace initiatives in play, and

19     peace, not war, were on everyone's mind.  The items on the list that my

20     colleague, Ms. Kravetz, presented to you are the same entries that I

21     highlighted for you in my presentation, and every single one of them is

22     related to the voluntary surrender of arms during this time-period when

23     peace was on everyone's mind.  Does that mean then that the UN and

24     international mediators were also part of the JCE?

25             We presented Lukic's only role was in relation to providing

Page 563

 1     statistics to both Serb officials on the one hand and international

 2     officials, like Shaun Byrnes, on the other hand as to voluntary surrender

 3     of arms.  Surely that is not to be viewed as a crime.

 4             In the context of arming, the Prosecution brought up the RPO, and

 5     I'd like to take a look at what that actually is and what Lukic's role is

 6     in relation to this topic.  P2166 is the meeting in Belgrade that was

 7     cited to by the Prosecution.  This document shows an important fact.  It

 8     demonstrates that the Supreme Defence Council on June 9th, 1998, brought

 9     a decision based on the Law of the VJ, the Law on Defence, and the rules

10     and regulations of the VJ to prepare a global plan for the suppression of

11     terrorism which foresaw the engagement of the VJ and the MUP.

12             If one looks at the evidence that was presented at trial, part 4

13     of this plan, this global plan, establishes the RPO.  Again, this is the

14     same plan that you heard of this morning during my presentation, where

15     the Trial Chamber rightly concluded that neither the MUP nor Lukic

16     participated in its drafting.  This is at book III, paragraphs 1021.

17             Further, the Prosecution did not provide any citations to any

18     evidence demonstrating that a single crime from the indictment was

19     committed by members of the RPO.

20             Your Honours, I invite you to look at the evidence of -- the

21     record of evidence because there has been no presentation of any such

22     evidence.  Again, one has to look at time-periods because the different

23     time-periods that are at issue involved different legal frameworks,

24     different factual frameworks, and they provide a totality of the

25     evidence.  The judgement at book I, paragraph 776, confirms that when the

Page 564

 1     war began, when the NATO bombing began, these very same RPO were at that

 2     time mobilised and absorbed into their war time positions within the

 3     various defence structures of the state, whether the VJ, the MUP, civil

 4     protection, wherever their war time assignments were, they were absorbed

 5     into them.

 6             In book I, paragraph 788, as to the remaining 6.000 RPO that did

 7     not have a war time assignment, the Chamber concludes that they fell

 8     under the authority and command of the army, including in carrying out

 9     assignments relating to combat and that this was in accord with the

10     Law of Defence, Articles 62 and 63.  And for Your Honours's reference,

11     the Law of Defence is P985 in evidence.

12             So under the trial judgement's own conclusions, what could

13     Lukic's involvement, authority, and purported command over these RPO

14     amount to?  It cannot.  The Prosecution is avoiding dealing with the fact

15     that there are different periods with different legal frameworks that

16     cover the facts that were adduced at trial.

17             Further on the issue of the RPO, counsel mentioned book III,

18     paragraph 1066, and identified three documents - they are P1989, P1996,

19     and 6D802 - as relating to Lukic's orders to RPO in actions.  I urge the

20     members of this panel to review all of those items because we submit that

21     neither that paragraph of the judgement, nor the three documents cited,

22     relate to any anti-terrorist actions or combat or anything of the sort in

23     relation to the RPO.

24             From this we see that the Prosecution has misrepresented the

25     relevance of the RPO to Lukic and his authority over the same.

Page 565

 1             I'd like to now turn to Lukic's interview which was also cited by

 2     the Prosecution in their response.  Your Honours will recall that we have

 3     a separate ground of appeal relating to errors that arise from

 4     Mr. Lukic's interview and the manner that it was used in the trial,

 5     problems with the translations, and problems with the same.  That is our

 6     ground F of the appellant's brief.  I will not repeat all those

 7     arguments.  I will just highlight something for you.

 8             The Prosecution's focus is on one particular selection that talks

 9     about the dual role as to the PJP of the staff, and again they seem to

10     ignore different time-periods, just as the Chamber does at

11     paragraph [sic] 3, 1013.  In that paragraph, the Chamber also focuses on

12     this same selection from the interview.  What is ignored is that in this

13     period, that is, 1999, Obrad Stevanovic, the commander of the PJP units

14     and also the chief of the police administration within the MUP was on the

15     ground in Kosovo.  He didn't have an office.  He used the staff.  So when

16     Lukic is talking about the MUP staff, you have to take into account that

17     Obrad Stevanovic when he's in Kosovo, when he's in Pristina, he's at the

18     MUP staff.

19             Furthermore, as to the role that Lukic himself played, it's key

20     to look at P948, which is his interview, and to look at several points in

21     that interview, including at pages 4, pages 66, and pages 153, when Lukic

22     says:  I want to give you more details and explain to you the precise

23     role of the MUP staff.  And each time the Prosecution interviewer says:

24     No, no, we'll get to that later, we'll get to that later, let's finish

25     this.  And he's never given a chance to give a full account, a full

Page 566

 1     explanation, explaining precisely what the meaning of those words were,

 2     what the meaning of the MUP staff in the greater picture of things in the

 3     MUP hierarchy was, and what his role as head of staff was.  That would

 4     conclude my comments as to the interview.

 5             I'd like to now move to the September -- excuse me, 17 February

 6     meeting that both Ms. Kravetz and Mr. Wood have referred to in their

 7     remarks.  We have a fundamental problem -- or, I should say, the

 8     Prosecution and the Chamber have a fundamental problem that now is

 9     imputed to all of us.  They are operating from the English translation of

10     this document, which is not in comport -- does not comport to the B/C/S

11     original of the document.  So I would like to, with the indulgence of the

12     interpreters, try to read the B/C/S original and see if we can obtain a

13     translation of what is actually said in the minutes of that meeting.  And

14     I will now begin in B/C/S:

15             [Interpretation] "The staff has planned to carry out, whenever

16     this is ordered, three operations:  Mopping-up of the terrain from the

17     terrorists in the sectors of Podujevo, Dragobilje, and Drenica."

18             [In English] And this is P1990 for the record.

19             What is clear from the context of these words is not that the

20     staff has planned an action, but rather that the staff is planning to

21     carry out something once it is ordered, that it intends to carry out

22     orders once they have given.  The Prosecution has also mentioned and

23     during this same time-period indeed dated, I believe, one day prior is

24     P2808, which is an order from the Pristina Corps dealing with these exact

25     same locations that are mentioned here, identifying both VJ and MUP units

Page 567

 1     to be involved, and setting out assignments for the same.  So indeed, the

 2     role of the MUP staff in this is not of the command nature that the

 3     Prosecution has implied.

 4             Now, I submit to you that both the judgement and the Prosecution

 5     ignore the facts on the ground as to 1999 and the evidence of the same,

 6     and I'd like to draw Your Honours' attention to some of those factors

 7     that I think are relevant for understanding this case.  We have the

 8     testimony of Colonel Crosland, an international diplomat, that during

 9     this time-period the KLA controlled 70 per cent of the territory of

10     Kosovo; that's at transcript page 9910.  At the same time, NATO was

11     bombing Kosovo every day and in evidence we had several incidents where

12     NATO bombed Kosovo Albanian refugees.  We also had several incidents

13     where NATO bombs fell on civilian targets.  We can call it something

14     nice.  We can call it collateral damage, but for people on the ground

15     looking at their neighbours' houses being bombed they're thinking of it

16     differently, they're thinking of it as a signal to get out of there

17     before it's their house.

18             Per Sandra Mitchell at transcript page 566 through 567, the

19     Kosovo Verification Mission had evidence that 100.000 Serbs left their

20     homes in Kosovo during the NATO bombing.  That would amount to

21     40 per cent of the Serb population of Kosovo leaving during the NATO

22     bombings.  The figures given for the Kosovo Albanians leaving is

23     30 per cent of the Kosovo Albanian population.

24             I think the question we all have to ask and which the

25     Trial Chamber failed to ask:  Were Serbs leaving their homes in Kosovo

Page 568

 1     for the same reasons as the Albanians?  A reasonable alternative reading

 2     of the evidence is that they were, that they were all leaving because of

 3     the NATO bombings, not the actions of the VJ or the MUP.  Without an

 4     analysis to exclude that reasonable alternative conclusion, the

 5     Trial Chamber judgement is in error.

 6             I urge you to look at the evidence in the judgement that has now

 7     been relied upon, the paragraphs that have been relied upon by the

 8     Prosecution as to why people left, paragraph 1125, no citations to the

 9     evidence, that's in Volume II; Volume III, paragraph 45, again no

10     citations to the evidence; paragraph 95, no numbers; paragraph 1123, no

11     numbers, no citations to the evidence.

12             The Trial Chamber did not calculate the number of departures that

13     resulted from any direct evidence of expulsions of the type that are

14     alleged in the Prosecution's indictment.  There is no evidence-based

15     findings on the number of persons expelled, nor the reasons why they

16     left.  If one looks at the witnesses that came and testified, there were

17     48 crime base witnesses.  Thirty-three of the same, which amounts to

18     70 per cent, did not say that they left because they were forced out by

19     the VJ and the MUP, but rather they said they left for other reasons like

20     fears of NATO bombing, fears of combat between the KLA and the Yugoslav

21     forces, or personal reasons.  Those are legitimate reasons for people to

22     leave.  Those are similar legitimate reasons that people in other cases

23     have been acquitted, like the Gotovina appeals judgement.  Here we have

24     direct evidence from Bislim Zyrapi, who was the KLA commander, who

25     testified here at transcript page 6003, who confirmed that KLA ordered

Page 569

 1     Kosovo Albanians to leave their homes as part of their plan and strategy.

 2     How can we, therefore, then exclude this as a reason for the

 3     displacements of persons that we saw?  A reasonable Trial Chamber cannot,

 4     and therefore this judgement is in error.  It is unsafe.

 5             One last topic I'd like to touch upon that my colleague Mr. Wood

 6     mentioned.  In relation to notice of crimes, he gave us a reference to a

 7     paragraph and talking about Shaun Byrnes and what Shaun Byrnes said about

 8     the police burning homes on a daily basis.  I'd like to look at what the

 9     evidence says, not what the trial judgement says.  Shaun Byrnes at

10     transcript page 12148:

11             "I did not see a single PJP officer pull a trigger.  I did not

12     see a PJP officer light a house on fire by whatever means, but there were

13     no Albanians about.  They had fled and the village was in flames."

14             Under this evidence it is not the only reasonable conclusion that

15     crimes imputed to the MUP can be inferred.  People flee and houses burn

16     from legitimate combat as well.  The biggest problem with the OTP and the

17     judgement is they forget or fail to apply the principle of in

18     dubio pro reo throughout and that is the single most reason why,

19     Your Honours, your review is required and why this judgement is unsafe,

20     illogical, and must be overturned.  And I thank you for the time to make

21     these submissions.

22             JUDGE LIU:  Well, it seems to me that there's no questions from

23     the Bench, so that concludes the hearings for today.  And tomorrow we'll

24     have a longer day.  We'll start from 9.00 until 5.00, compared with

25     today -- yes, Mr. Wood.


Page 570

 1             MR. WOOD:  Your Honour, I just have one further transcript

 2     correction to make, just for the clarity of the record.  At transcript

 3     70, line 3, today it says the number "78" but it should really be line

 4     "1178" which is what I intended to say.

 5             JUDGE LIU:  Thank you.  We are adjourned from these proceedings

 6     until tomorrow morning at 9.00 a.m.

 7                           --- Whereupon the hearing adjourned at 3.15 p.m.,

 8                           to be reconvened on Friday, the 15th day of

 9                           March, 2013, at 9.00 a.m.