²⁶

Monday, 29 October 2001

[Motion Hearing]

[Open session]

[The accused entered court]

--- Upon commencing at 9.32 a.m.

JUDGE MAY: Yes. Let the Registrar call the case.

THE REGISTRAR: Good morning, Your Honours. Case number IT-99-37-PT and case number IT-01-50-I, the Prosecutor of the Tribunal against Slobodan Milosevic.

JUDGE MAY: I'll hear the appearances, please.

MR. RYNEVELD: If it please the Court. Dirk Ryneveld, Senior Trial Attorney for the Kosovo indictment, along with Madam Prosecutor Carla Del Ponte and my colleague Hildegard Uertz-Retzlaff for the Croatia indictment.

JUDGE MAY: Yes, Mr. Kay.

MR. KAY: Stephen Kay, Queen's Counsel of the bar of England and Wales.

MR. WLADIMIROFF: Michail Wladimiroff, member of the bar of the Netherlands.

MR. TAPUSKOVIC: [Interpretation] Branislav Tapuskovic, member of the bar from Belgrade and an attorney from Belgrade, a member of the bar of Serbia.

JUDGE MAY: The purpose of this hearing is to deal with four matters which we will deal with in this order: First of all, the hearing of argument on a number of motions; secondly, the reading of the Kosovo ²⁷ indictment and the accused to enter a plea on one count if necessary; the Initial Appearance on the Croatia indictment; and finally a Status Conference.

As to time, we have available today and, if necessary, tomorrow morning. However, the reading of the indictments is going to take some time, but nonetheless I hope it may be possible to finish today. We begin with the motions hearing, and the matters to be considered are these: First of all, a Prosecution motion for leave to file a second amended indictment, and then various preliminary motions and documents from the accused together with a brief on jurisdiction from the amicus curiae.

We'll deal with these motions in this way: that first we will hear the arguments of the Prosecution and the amicus on the motion to amend the indictment; we will next hear the arguments of the amicus and then the Prosecution on the preliminary motions; and finally we will hear the accused on all motions.

We begin then with the Prosecution motion for leave to file a second amended indictment, this is under Rule 50 of the Rules of Procedure and Evidence, which provides that the Prosecutor may amend an indictment after the assignment of a case to a Trial Chamber with the leave of the Chamber, after having heard the parties.

It may be of assistance if I summarise the issues which are raised under this motion. The motion states that the reasons for the amendment are as follows: First, to reflect the link between killings in Kosovo and the bodies found in mass graves near Belgrade; second, to add an ²⁸ additional count of forcible transfer - this relates to the Kosovo Albanians who were internally displaced within Kosovo rather than actually deported; thirdly, to break down the allegation of persecution in Count 4 - this amendment seeks to particularise the various persecutions and to replace the earlier very general allegation.

Fourth, to add a new section on individual criminal responsibility under Article 7(1) of the Statute. This is said to be an order to specify what the motion calls "common purpose liability." As the Chamber understands it, the amendment seeks to clarify the Prosecution case in this respect and spell out that the Prosecution rely on a joint criminal enterprise in which each of the accused participated. Fifthly, to add three new sites from which the deportations took place and to expand on others, adding more background, and this includes a number of allegations of sexual assault and destruction which were carried out during the deportation operations.

There are also various stylistic changes and the rearrangement of some parts of the material.

Now, that's intended to be a brief summary of the scope of the amendments, which on the whole, speak for themselves. Now, I'm going to turn to the amicus first.

Mr. Wladimiroff, we got your letter of last Friday stating that you wouldn't file a brief on this motion, but there might be some procedural issues to be raised. Is there anything you want to raise on this?

MR. WLADIMIROFF: We have no further observations at this stage, ²⁹ Your Honour, but maybe later on we may come back to the procedural aspects of any amendment if given leave by the Court.

JUDGE MAY: We could hear you better if you were on your feet.

MR. WLADIMIROFF: I apologise.

JUDGE MAY: No. We heard that. So you don't want to make any points about the amendment.

MR. WLADIMIROFF: Not at this stage, Your Honour.

JUDGE MAY: But there may be some subsequent issues which arise out of it.

MR. WLADIMIROFF: That's right. That's right.

JUDGE MAY: Well, we can deal with them in the Status Conference --

MR. WLADIMIROFF: That's right.

JUDGE MAY: -- when we will be timetabling the indictment.

MR. WLADIMIROFF: That's what we had in mind, Your Honour. Thank you very much.

JUDGE MAY: Thank you. Very well. We will hear any submissions from the accused on this issue in due course.

We go on to deal next with the preliminary motions, and in this connection, we have the following motions and other documents, all of which we've read: A motion from the accused of the 9th of August of which he's asked us to consider paragraph 8 only, which we've done; a response from the Prosecution filed on the 16th of August; a presentation, as it was termed, filed by the accused on the 30th of August, relating mainly to the alleged illegality of the Tribunal. This we will treat also as a ³⁰ motion. The brief of the amicus curiae on jurisdiction filed on the 19th of October. This adopts and expands the arguments of the accused. And finally, the response from the Prosecution of the 26th of October. As to the argument, we'll hear the amicus first, then the Prosecutor, and finally, the accused.

Who wants to start for the amicus?

MR. WLADIMIROFF: Thank you, Your Honour. Each of us will deal with matters raised in the brief. We have not much to say in addition to what we already wrote in our brief. We have some observations to make, and I will start to do so.

First of --

JUDGE MAY: I should say, just to make it clear, that we've had those submissions, for which we are grateful. We have had the chance to read them, so there is no reason to repeat either what you've said or indeed what the Prosecutor has said.

MR. WLADIMIROFF: That's exactly what we had in mind, Your Honour. We are not here to repeat things that have already been written or said.

The first observation I want to make deals with the position of the amicus curiae and the position of the accused. We pointed out in our brief that the accused should have full opportunity to express himself and to make any statement that is relevant to argue his case. Here, perhaps it would make sense -- perhaps I'll stop here, because while I'm talking, all things happen here, and I have no clue what's going on. Perhaps I should move a little bit to the right. There's little room here too, Your ³¹ Honour, but we'll try to do it.

First of all, I want to say that the amicus curiae, during the pre-trial position, each of us, we feel that we should not raise issues that have not been raised by the accused. So at this stage, we feel appropriate to react to issues that have been raised by the accused. That's for the very reason that we do not want to replace him in terms of raising issues. It's for the accused to raise the issue and we are there to comment on that by assisting the Court in supplying legal reasoning for the argument raised by the accused.

So in this approach we feel that the Court should allow the accused the broadest possible room to manoeuvre to argue his case, and as we have said in our brief, that also may include reasons which, on the face of it, might not directly be legal reasons but, more or less, political reasons, because the establishment of the Tribunal, his main challenge, also includes, as we have set out, possible political reasons.

JUDGE ROBINSON: Mr. Wladimiroff, I have heard your explanation as to the understanding of your role. I understand what you have said, but in my view, it is perfectly open to the amici to raise any arguments that they wish so long as it will assist the Chamber, and that is perfectly clear from the motion, from the ruling that the Chamber gave. So I understand what you have done, but for the purposes of the rest of the trial, I think it is important that you understand that your role is a bit wider than that. It is not simply to react to arguments raised by the accused. You are there to assist the Chamber in the consideration of this case. ³²

MR. WLADIMIROFF: We understand that, Your Honour. What I tried to explain is at this stage, during pre-trial, having the first motion, we feel that we should approach the matter in a very delicate and diplomatic way, find our way through this method of not being overreactive to anything that's going on or taking initiative where we have no idea what the consequences are. So we start in a very moderate way and develop from there. And that's the reason why we do not feel it appropriate to raise issues at this stage, at the very beginning, that have not been raised by the accused. We may do so later, but not at this stage, because we feel it's for the accused to guide all of us, what he is looking for, what kind of arguments he's looking for, to tell the Court what he is thinking, what he wants. It's not for us to narrow that possibility. So we are very, very, let's say, moderate at the very beginning, and we will develop from there.

JUDGE ROBINSON: Very well. I understand the conservative approach that you have taken, but please understand that your role is a bit wider than that. Please proceed.

MR. WLADIMIROFF: We may come to that, Your Honour. I am confident that at the end of the day, and that's more than today, I hope that the amici curiae will be able to do what we have to do in the interest of the accused and to assist the Court in finding the right answers to issues that have been raised in this Court. But please allow us to start as delicately as we can.

Perhaps I should move on to the next issue I want to touch on. It's a very brief observation as well, because actually we feel everything ³³ has been said in our brief. That's the issue of whether previous decisions of the Court or the Appeals Chambers are binding or not. The amici curiae are perfectly aware of the decision in the Aleksovski case, and we are also perfectly aware of what the Appeals Chamber has said there. However, we also believe that whereas in the Statute there is no guidance on the matter that we are now discussing, it is not expressed by the Statute, nor by the Rules, how to deal with the matter. It is, by itself, a matter of case law, how to understand the issue.

The Appeals Chamber in the Aleksovski case found that generally, in common law jurisdiction, there is more binding with previous decisions than in civil law jurisdictions because there is no doctrine there. I think there is some logic in that observation, because if law or a system derives from a statutory system where most issues have been described in the Statute, there's less reason to rely on previous decisions of courts interpreting those statutes; while in common law, people take more precedents from previous decisions and therefore the system of previous decisions, the case law, is more important for the functioning of the system itself.

Different from the Appeals Chamber, we feel that in the system of the Tribunal, there is a Statute, there are Rules. One may argue that those Rules may not be complete in terms of dealing with all possible issues, but as a matter of fact, they are dealing with all possible issues on a basis that may be different from what one would see in the Statute, for example, on the European continent. But still there are Rules. The ³⁴ answers are in the Rules and in the Statute.

From that point of view, we argue that there is no need to rely on previous decisions in the meaning that they are absolute -- they are absolutely binding. We feel that previous decisions have the importance of being authoritative and they should be of guidance for the Judges, and they should follow them unless they may depart from them, so to say, unless there are cogent reasons in the interests of justice not to do so. So it is not an absolute thing, it is a relative thing. Now, as we have said in our brief, we believe that, on the merits of the case at hand, the Trial Chamber is free to depart from previous decisions and to see whether there are any specific circumstances or arguments raised by the accused or enlightened by the amicus curiae, and therefore the Tadic appeals decision is of very authoritative importance to this Trial Chamber but on the basis of guidance. Now, if you carefully study what we have said, and you have done so, you will realise that we are not actually challenging the Tadic decision. We are following it, and we argue that on the basis of that decision - we'll come to that later - we advise the Trial Chamber to ask for an advisory opinion of the ICJ. We are not saying that the Trial Chamber should rule differently to the Tadic appeals decision. And actually, in the Tadic appeals decision, the issue has not been raised, so it's a novelty.

Let me see if there is any other reason to make more observations about this one.

The next issue will be discussed by Mr. Kay, and that is the issue ^{35 BLANK PAGE 36} of independence of the OTP or perhaps the Tribunal. So I will give him the floor, if you agree with that.

JUDGE MAY: Just one moment. Could the Registrar come, please.

[Trial Chamber and Registrar confer]

JUDGE MAY: Yes, Mr. Kay.

MR. KAY: Thank you, Your Honour. I'm dealing with two matters in relation to the brief of the amici curiae filed on the 19th of October. The first of those matters is set out at paragraph 10 of our brief and takes in paragraph 11, and then I'll go on to deal with paragraphs 12 and 13, which is the right of this Tribunal to try a head of state and so is, therefore, an argument raised by the accused concerning the right of state sovereignty.

Dealing with the first matter, it's quite clear from the points raised by the accused in his correspondence and various documents that he has asserted that this Tribunal is incapable of giving a fair trial because of its failure in relation to impartiality. One of the key fundamental principles for any valid court of law is the principle of impartiality. Without there -- that, there can be no rule of law and no right to a fair trial.

I appreciate this point has been taken several times before in the history of the Tribunal, but that doesn't preclude him in being able to raise the matter. In many respects, this argument of impartiality can be linked up with the issue at the end of the brief filed which the amici curiae, which really concerns the right of these judges, so to speak, to judge themselves in relation to their validity. ³⁷ Mr. Wladimiroff will be addressing you at the end of our submissions on that last feature of the brief of the amici, which starts at paragraph 19 and relates to the test of independence and the proposition that for this court to be validated, it should be validated by a principle organ of the UN, being the International Court of Justice. I won't deal with that argument now as he will, but the point I make is that this issue of impartiality is very much bound up within the validation of the Tribunal.

The accused has stated, within the various documents, that the pressure on this Tribunal from external sources to try him and others makes the whole culture of the Tribunal unfair and biased against him, and that's notwithstanding any issue that there may be concerning the right to try him in the first place. The indictment that was issued against him in 1999, at the time of conflict, was as the result of the Security Council urging the Prosecutor to take action in relation to events in Kosovo. Before that time, it appears from the court records there was no public or secret indictment against him. It wasn't until those political events in 1999 that the first indictment was issued as against him.

JUDGE MAY: The document on which you rely, I think was from the Security Council in March 1998, according to my note.

MR. KAY: The 31st of March, 1998.

JUDGE MAY: Yes. The indictment didn't come until a year later.

MR. KAY: Yes.

JUDGE MAY: -- a year later.

MR. KAY: Obviously there's preparation of these matters. And ³⁸ when that indictment came out, the accused, at that time, was in the middle of a situation of international conflict.

JUDGE MAY: It was merely urging the Prosecutor to investigate violations of international humanitarian law. Are you saying that the Security Council shouldn't have done that?

MR. KAY: It's a pressure upon the Prosecutor, whose job is derived from the Security Council in the first place, that it would be difficult to say that that party could, thereafter, act independently, and that's the point that's being made here in the submissions of the accused.

JUDGE ROBINSON: Mr. Kay, in order to substantiate that, wouldn't you have to go a little further and show that that pressure was applied to the Prosecutor in her decision to indict Mr. Milosevic? Is there any evidence of that?

MR. KAY: With respect, I think it's for the Prosecutor to prove there wasn't. It's impossible for an accused or a party in any other position to prove a negative. We're simply not in possession of any of the facts or any information.

JUDGE ROBINSON: But you are making the allegation of a breach of independence. In my view, the onus is on you. You are alleging the lack of impartiality on the part of the Prosecutor. The onus is on you to show that lack of impartiality.

MR. KAY: What's being asserted here is that there is a suspicion, a reasonable supposition that that could have been the position. As far as the accused is saying within his documents, it would be the definite ³⁹ nature of the allegation.

If an assertion such as that is being made in relation to jurisdiction, surely it's for the party who is seeking to establish the jurisdiction to prove to the contrary. For an accused or any other person to take such an argument on the basis of evidence that is not in his possession and would probably never be in his possession in terms of documents or material evidence, it really amounts to an impossibility.

JUDGE MAY: You've got to make some sort of showing that there is an absence of impartiality or independence as a result of an urging by the Security Council, not to prosecute this case but to investigate, as I say, violations of international humanitarian law. It may be you can't take the matter any further.

MR. KAY: No. Perhaps this is the sort of issue that when an indictment is confirmed, in view of the general circumstances in which the indictment arose, that the Prosecution should seek to justify the position of the issuance of the indictment in the first place, and it may well be that in the early procedural stages that that is when such a course should have been taken on enquiry by the Court itself, the Confirming Judge, Judge Hunt, in relation to the reasons for the issue of the indictment. We have cited an example within our brief that arose in relation to the manner of detention of the accused, which can be looked at as being an example, if you like, of the kind of impartiality that he asserts. He has been forbidden from speaking to the media or the press, whereas other organs of the Tribunal are in a position to be able to do so. From his perspective, that can be seen as an impartial regulation of the respective ⁴⁰ positions of the parties. But this issue of impartiality is fundamental to his right to a fair trial, and in many respects, that's why we say the proposition at the end of our brief is the proposition that is the true test of validity.

Shall I turn now to the second argument that I'm dealing with? Unless Your Honours have any further issues, outside of that which we've written in our text concerning the issue of impartiality.

JUDGE MAY: No. If you'd like to go on.

MR. KAY: Thank you. This relates to the jurisdiction of the Tribunal against him as an individual, as the former President of the Federal Republic of Yugoslavia. The Court knows and the Prosecution has cited, as indeed we cited the Article 7, subarticle (2) of the Statute that states those acting in their official capacity as head of state may be subject to the jurisdiction or be held criminally responsible for acts before this Tribunal. However, this is an issue here that is probably the oldest and most fundamental rule of the governance between states, and that is the principle of state sovereignty.

History is full of examples of attempts to prosecute former heads of state, as we have cited in our brief, none of which were put into effect, and the position of President Milosevic here, one can say properly, is now unique if not historic. The Prosecution, in their response, have cited the case of Prime Minister Kambanda in relation to the Rwanda Tribunal, but that was a plea of guilty and that was not an issue that had to be decided by the Court itself upon this issue of state sovereignty. ⁴¹ As I said, the oldest and most fundamental principle that has, by international customary law, governed the relationships between states, which has in fact been inviolable, has been the issue that a state retains its sovereignty and its leader cannot be put on trial for acts committed in that official capacity of acting on behalf of the state.

JUDGE ROBINSON: Mr. Kay, you must be aware of the vast number of instruments which contain a provision similar to Article 7(2), and I believe you should be aware that by this time, the provision in Article 7(2) reflects a rule of customary international law. With the development of the doctrine of individual criminal responsibility, which commenced after the Second World War, a number of instruments incorporated and reflected that principle; Article 7 of the Nuremberg Charter, Article 6 of the Tokyo Tribunal Charter; Article 4 of the Convention for the Prevention and Punishment of the Crime of Genocide; and most recently Article 27 of the Rome Statute for the International Criminal Court.

At this time, I'm at a loss as to how you could argue that the principle in Article 7(2) is anything but a rule of customary international law in relation to the kind of crimes with which the accused is charged.

MR. KAY: Article 7(2), of course, arises from a Statute that arose from the Security Council, and as one looks at the materials and documents filed by the accused, his principal argument is that this was not a tribunal that was set up by the General Assembly of the United Nations but by the Security Council -- ⁴²

JUDGE ROBINSON: That has nothing to do with the question of whether what is in Article 7(2) reflects the rule of international customary law. The fact that it came from the Security Council doesn't go to that question.

What determines whether it is a rule of customary law is primarily two things: state practice, how wide-spread the state practice is, and principally the feeling among states that there is a legal obligation to abide by that rule, the opinio juris. And all of the instruments I have cited, including most recently the Rome Statute, clearly reflect this. So I can't understand the argument coming at this stage. Perhaps immediately after the Second World War, but not some 50 years after that.

MR. KAY: Of course, no previous heads of state have been subject to a trial, and that is a point in itself probably worth making on this issue. The international customary law in relation to state sovereignty still retains itself as a principle. I take Your Honour's point that in relation to these particular violations, that there have been a number of moves within the international community for the trial of violations of humanitarian law, and that has to be recognised.

JUDGE ROBINSON: Mr. Kay, let us take the recent case from your own jurisdiction, the Pinochet case, where the House of Lords held that Senator Pinochet was not entitled to immunity in respect to acts of torture and conspiracy to commit torture alleged to have been committed in his capacity as a head of state.

I would draw your attention particularly to what Lord Millett said that: ⁴³ "In future, those who commit atrocities against civilian populations must expect to be called to account if fundamental human rights are to be properly protected. In this context, the exalted rank of the accused can afford no defence."

Another example of the state practice contributing to the customary character of the rule reflected in Article 7 of the Tribunal's Statute.

MR. KAY: Yes. And the interesting thing was, of course, Senator Pinochet was returned to his own country and wasn't, in fact, extradited to Spain in the event, and we in our brief cite the examples of Pinochet and Noriega.

JUDGE ROBINSON: He was extradited or returned on grounds which have nothing to do with the validity of the principle that we are examining now.

MR. KAY: Yes. And a national decision doesn't bind an international court.

JUDGE ROBINSON: It doesn't bind it, but it goes to the question of the development of custom, of a customary rule of law. It is quite clear that decisions of national courts can be considered in determining whether a rule of customary law has developed. That's very evident, and no citation is needed for that.

MR. KAY: And far be it for me in any way to diminish the standing of my own House of Lords. But as far as that decision was concerned, which also involved at one stage an issue of impartiality, which I have ⁴⁴ held myself back from, mentions earlier on, that decision by that national jurisdiction which they said reflected international customary law, we say, at the end of this brief, is an issue that another organ should decide for this Court, an organ of long-standing international stature, which is a United Nations organ with great experience in dealing with international affairs and the affairs of the United Nations, which is the International Court of Justice. The self-validation process that has been evident within this Tribunal has led to the apparent feeling of impartiality by those over whose affairs it seeks to regulate. I just say that because of the time-honored maxim: Justice must not only be seen to be done, it must be done as well. And the --

JUDGE ROBINSON: Your colleague is going to argue that point.

MR. KAY: Yes.

JUDGE ROBINSON: Don't preempt him.

MR. KAY: Far be it for me either. But the point here that this issue of state sovereignty that the accused has raised on his own behalf is a valid and historic argument that, if one looks at the history rather than the political intent, has shown to be a rule that has been applied in many circumstances. And that is what he is pleading on his behalf as a valid reflection of international law.

JUDGE MAY: Mr. Kay, I think you've covered the points, unless there's anything else you want to raise.

MR. KAY: I'm grateful, Your Honour.

MR. WLADIMIROFF: If I may, Your Honour, add to what Mr. Kay said. ^{45 BLANK PAGE 46} Let's accept that Article 7(2) reflects international law if one accepts that national developments altogether is an expression of a growing understanding between nations and peoples, that such a custom is the right expression of the law. But the real issue then is if Article 7(2) is supposed to reflect international -- to reflect a customary international law, does the wording of Article 7(2) reflect international law? Now, there we have a problem.

According to Article 7(2), if we deal with functional responsibility, the test is, to say it very simply, knowledge or awareness, power, and negligence or failure to correct. That may be right for commanders, because there is enough evidence to argue that that test is valid under international -- under customary international law, to see whether a commander is assuming responsibility for what he did in that capacity; but we wonder if such evidence is available if it comes to a head of state.

When we argue here, is the test as provided in Article 7(2) the right test to apply to a head of state? So if the Court will agree with that, there is more to the test than what is in Article 7(2). In that respect, Article 7(2) does not reflect customary international law. Now, before moving on, let me reflect for a moment again on the position of the amicus curiae. The Court has put it to Mr. Kay that if you raise an issue, there should be a good showing. In general, we would accept that, but we are not the Defence lawyers of Mr. Milosevic; we are amicus curiae. And as I tried to explain at the very beginning, at this stage, at this very stage, at the very beginning where we have been ⁴⁷ recently appointed, we react to objections, observations made by the accused. Now, we tried to explain to the Court what the accused is saying. So if there is a showing, the showing should be by the accused and not on the amicus curiae.

What I'm saying here is the onus of a showing of the amicus curiae may not necessarily be the same as the onus on the accused. We are not one unit. It's not one thing, the defence, Mr. Milosevic, and the amicus.

So if we argue -- actually, perhaps it's not argue. If we translate what the accused says and we argue on the basis of that translation what the meaning is, what perhaps the consequences might be for your court and we advise the Court how to see it, to take into account other arguments related to what the accused has said, it is a little bit difficult to find out at this stage what exactly is the onus on us. Perhaps we will find the right answers later on. At this stage, we believe it's not quite clear if there is a full onus on us. That's a matter to be studied.

JUDGE MAY: I think it was a figure of speech --

MR. WLADIMIROFF: I understand that.

JUDGE MAY: -- not a precise onus. We are all finding our way with the position of amicus --

MR. WLADIMIROFF: I appreciate that.

JUDGE MAY: -- and the role.

MR. WLADIMIROFF: Thank you, Your Honour. Now, let me move on to the issue I was going to cover. That is the advisory opinion. ⁴⁸ We have written in our brief that if one studies the literature on the Appeals Chamber's decision in the Tadic case, one of the comments that has been made is the issue of should a court consider its own jurisdiction, its own competence?

I'm fully aware that the issue is a common issue in most jurisdictions. At the end of a column, one judge at the end of it, for example, Supreme Court, should judge its own competition -- competence. Here we have a different situation. We are discussing not the competence on the usual issues, but we are discussing the competence in terms of the establishment, the legality of the establishment. That is not a thing that usually is debated in the national setting at the end of the column by, for example, a Supreme Court.

So I think some authors are right if they say it could perhaps have been done better if someone else was to refute that. So departing from that point, we believe that it is possible for your Trial Chamber not to refer the case, as the Prosecution asserts, but to consider the possibility of asking an advisory opinion and ruling yourselves on the basis of that advisory opinion. It's your possibility to rule on the matter, but we advise to split up in refining yourself to the formal function of taking the decision but for the substance asking an advisory opinion.

Now, under the Charter and under the Statute of the ICG -- the ICJ as well, it is not impossible to do, either by asking it yourself if you believe you've got an inherent authority to do so, or by asking the General Assembly or the Security Council to allow you to do so. And the ⁴⁹ amicus curiae have found no precedent, no argument why you should not be allowed to ask of such leave.

And actually, talking about showing, the Prosecution has not shown there is any valid legal argument that would bar such a request. And we have not seen or heard any argument which explains why the General Assembly or why the Security Council would deny such a question. So we believe it is a possibility which should be pursued, and we believe the Trial Chamber seriously consider that avenue to see whether the answers or the opinion of the ICJ would confirm or attribute or perhaps not confirm the Tadic decision of the Appeals Chamber but is heading for a totally different direction. And then at the end of the day, I think there won't be any criticism any more, because then indeed, a set of judges who are not in force have advised this Court how to proceed. So we believe there's not reason to simply deny it. I think it's a serious consideration to avoid any further criticism on the issue of being independent or being impartial.

That's our submission on this issue. Thank you very much.

JUDGE MAY: Mr. Wladimiroff, we'll consider that. Yes, are there any more submissions? Yes.

MR. TAPUSKOVIC: [Interpretation] Your Honours, I would not dwell on matters which my learned colleagues Mr. Kay and Mr. Wladimiroff have already addressed and explained very well how all three of us understand our role as amici curiae. Our position is, in fact, that if the need should arise, we might even separate our opinions and somebody may adopt a separate opinion. ⁵⁰ What I would like to ask is just for a few minutes of attention, as I come from a country of which the president, for a time, was Slobodan Milosevic. And I have to submit here a few important points linked to my position as a member of the amici curiae in such a case. I am not saying that in my own country I am in jeopardy in any physical sense, but from the moment I took over this duty as a member of the amici curiae, there were all kinds of criticisms as to why I had agreed to do this. Among other things, this was discussed in the Serbian parliament. Of course I will not discuss that. There was also some discussion at the Faculty of Law by all the law professors who had many objections as to why I had decided to accept this highly responsible job, the objection being that I am taking upon myself a enormous, an enormous moral, professional, and historical role. I don't like big words, highfalutin words. And this "historic" was used by others, not by me. I was also criticised for accepting to be an amicus curiae in this case, whereas those same law professors in Belgrade have offered their services to this Tribunal to act as amici curiae.

I was particularly criticised from the moral standpoint, that I had dishonoured the Serb morality because, as you may know or not, from the middle of 1996 to the middle of 1997, I worked in a case, and I considered that to have been a great honour. I was Defence counsel in the Celebici case for Mr. Mucic. That case is in its final stages, and I submitted the opening arguments. But the main criticism then was as a Serb, I was defending a Croat in a case linked to a Muslim camp where the victims were Serbs alone. ⁵¹ I said then and I have to repeat that now, that all of us, Serbs, Croats, and Muslims, should be pleased to have had such a person, because he helped people not to have suffered more, and this should have been appreciated by both Serbs, Muslims and Croats, that there was such a person around. And at the time, I made a comparison with Schindler, saying that he was a Schindler among the Croats. However, here I am again in a position to be a part of this case, when both I and the accused come from the same state and belong to the same nation. Again the same criticisms and the same reproaches and risks for myself.

I am profoundly convinced that I can perform the duty of amicus curiae as required by my duties as a professional lawyer according to the rules that apply throughout the world, and I am ready to bear full moral, professional, and even, if you will, historical responsibility to participate in these proceedings as an amicus curiae. Believe me, I have had to make that statement because of the situation I am in, and I hope you will not take it against me. To complement what has already been said before coming to my particular point, I think the principle of fairness is a universal principle, and we have a court which in time, space, and personnel has limited its jurisdiction to a small area on the globe. I'm quite confident that this Chamber can absolutely be fair, within the framework of the Rules, but that level of fairness would be absolute if the validity of those rules were to be universal. Until that is so -- and you know the problems there are in the establishment of a permanent international ⁵² court, and until this Statute becomes universal, we will not be able to speak about absolute justice or fairness, which does not mean to say that I am not confident that this Chamber may be able to achieve absolute fairness, which perhaps will one day be achieved worldwide. To come now to the problem raised by Slobodan Milosevic in his correspondence and submissions, and that is he underlined in particular that his surrender to this Tribunal was not legal, was unlawful. And that brings me to the following issue: We cannot deny that at that point in time, he had been lawfully in detention according to the laws of Yugoslavia at the time. On the 28th of June, he was surrendered to this Tribunal and arrested according to the laws of the country earlier on. We also do not deny that he could have been surrendered by instruction of the Judge of this Tribunal, because detention had been ruled. However, who did the Tribunal or, rather, the Prosecution address via the Tribunal because the Tribunal issued an arrest warrant for the accused? Those requests mainly, or rather, entirely - they couldn't have gone otherwise - through the federal bodies, on the 24th of May, 1999, and on the 22nd of June, 2001, when Yugoslavia was again admitted to the United Nations. And this request was addressed to the federal organs, that is, the Federal Ministry of Justice, and giving primacy to the Tribunal and the Rules of Procedure, was entirely in the hands of the federal bodies of Yugoslavia. There is no dispute over that. There was communication between the two, and the federal minister responded. And what is most important of all, very soon the Federal Ministry of Justice undertook to draft a law which was later transferred into a ⁵³ decree on cooperation with the Hague Tribunal. There is no law in Yugoslavia on the extradition of a national to any foreign body. We have a law of extradition of foreign nationals.

In view of that, the federal authorities undertook to pass a regulation in the form of a decree or a law that would enable cooperation with the Hague Tribunal. Therefore, what the Prosecution is alleging is not true, and that is that the primacy of the Tribunal is such that domestic legislation is totally unimportant. It cannot be unimportant. The fact that that state, as a member of the United Nations, undertook to pass regulations which would enable cooperation with the Hague Tribunal precisely as stipulated by the Rules and Statute of this Tribunal. And what happened then? Without waiting for that law to be passed, or rather, on the very day when the decree on establishing cooperation with the Hague Tribunal was in the final stages, whether it was before the Federal Constitutional Court, on that same day, the Republican Government decided to extradite Slobodan Milosevic to the Hague Tribunal, and as doing so, it acted arbitrarily. You know very well the provisions of international conventions. No one may arbitrarily jeopardise anyone, that everything has to be done in accordance with a certain procedure and according to a law. And Yugoslavia was investing special efforts to overcome the problem.

You're aware of the Tadic case. Tadic was arrested in Germany. Germany worked for four months on the adoption of a law on the basis of which Tadic was extradited. So there was no reason not to wait, and this is something that the current President of Yugoslavia insisted upon in ⁵⁴ particular, that legitimacy be given to everything. There was no need to turn somebody into an ordinary object to be extradited. This was a decision taken by the government of the republic, which was not a member of the United Nations. It was only a member of the Federation, the Republic of Serbia, and it had no obligation to implement anything linked to international covenants to which Yugoslavia is a signatory. This is something that only the federal government had the right to decide about, federal organs through appropriate procedures, because they were doing everything to have the law adopted as soon as possible, and on the basis of that decree, to do what was necessary to establish cooperation with this Tribunal and thus enable everything else after that. By doing so, the state of the Federal Republic of Yugoslavia was prevented from examining the instructions of the Judge of this Tribunal, and this is something that it should have been allowed to do, to examine the jurisdiction of this Tribunal and take the appropriate decision and act accordingly. Because everywhere in the world, including in this case, this procedure should have been respected, the right of the accused whose extradition was requested should have been respected. Only from Republika Srpska and now from Yugoslavia, people were extradited like objects, I have to say that. All I'm saying is that laws have to be respected. Now I come to my most important point. Slobodan Milosevic would not have been delivered in this way, because I assume if everything had been carried out according to procedure, the decree adopted, cooperation established, had there not been very great international pressure - and I'm sure that the Prosecution took part in this, and the Serbian ^{55 BLANK PAGE 56} government, when the law on cooperation with the Hague Tribunal was adopted, the Serbian government arbitrarily made the decision it made - as a result of such pressure on the national legislation, we now have Slobodan Milosevic here in this courtroom, and on the basis of such circumstances, it is not possible to base this case, and I mean the Prosecution.

I must also say that I truly believe that you will devote special attention to this, and I think this is perhaps the most pressing problem to be addressed at this stage. Thank you.

JUDGE MAY: Thank you, Mr. Tapuskovic. Now for the Prosecution. Who is going to address us? Madam Prosecutor, we've seen your brief which covers the matter, if I may say, very fully so we would be grateful if you could be fairly brief.

MS. DEL PONTE: Yes, Mr. President, Your Honours. I will be speaking in French which the accused does not speak, but I will speak slowly so that he can follow the English on the screen if he decides not to make use of the headphones.

JUDGE MAY: He's got an interpretation which is being played to him in Serbian.

MS. DEL PONTE: Thank you. [Interpretation] I have to say that I had spoken in English in order to accommodate the accused during the other hearings, especially further to his refusal to put on a headset. But now, Mr. President and Your Honours, for me it is essential to be able to communicate with this Court in the other language of the Tribunal which comes more naturally to ⁵⁷ me and which allows me to express myself better in respect of the details, without any ambiguities creeping in.

Mr. President and Your Honours, the accused Milosevic has said to us and has written to us and has repeated at the hearings, and I quote, "We are a nonexistent institution." This morning, the amici curiae have illustrated and have gone into depth in respect of all the themes of this preliminary motion, and I would like to say that since having heard them this morning, I must say that they acted the way assigned counsel would react.

But, Mr. President, I'm not going to ask that counsel be assigned - things are as they are and I'm not going to insist - but I would simply like to take this opportunity to tell you that we have tried to get into contact with the amici curiae before this hearing. They refused to do so; they did not wish to meet with us, which I lament, in fact. This is to let you know what the problems are that we confront, these procedural difficulties, difficulties in respect to being able to prepare the trial.

JUDGE MAY: Let me deal with that. I don't know anything about this. It's a matter for the amici the way that they choose to conduct this case, it is not a matter for the Court. If they choose to meet with the Prosecution, then that's a matter for them; but if they choose not to, equally it's a matter of them, and certainly there will be no criticism of them because of that.

MS. DEL PONTE: [Interpretation] Mr. President, this was not a criticism, it was simply a factual observation. ⁵⁸ I would also ask that you allow me to say that I have had a study carried out on the right to self-representation. I have a study here, and I should say that the problem is opened for me, and it is true that customary international law does not contain the right to defend oneself without counsel.

But I go back to the main point. The charges as -- the exchange of briefs and responses in writing in respect of the preliminary motion on jurisdiction, with all the things that follow upon that, is sufficiently well known. But even if sometimes one should not always repeat things, I would still like to repeat several of the most important points, the principal points in respect, first of all, of the legitimacy of this nonexistent institution.

We have already three appeals judgements: the Tadic appeals judgement which, in fact, is an important judgement which deals with the substance of all the arguments raised here; we have the Aleksovski judgement which goes back and follows up on the Tadic judgement. And I believe that the three principles which have been recalled by the Appeals Chamber are untouchable here. By this I mean the establishment of a hierarchy of the administration of justice by ruling on questions of fact and law, the guarantee of the need for security and the foreseeability, and the rule of international customary law, that is, the right to appeal, which means, therefore, the accused's right to have all of these matters dealt with in the same way.

For this reason, the Trial Chamber complies with the judgements of the Appeals Chamber. The Appeals Chamber itself is following its own ⁵⁹ decisions, and we heard this morning through the amici curiae that the exchange of these cases -- of these matters has been decided. The judgement in Celebici really simply confirms what has already been set forth as a principle. And I would like to say to you, Your Honours, that we have no interest and no demands in respect of asking for outside opinions. This advisory opinion which has been the subject of great pressure is not necessary insofar as these decisions were already taken in previous cases.

We are requesting, Mr. President, that the accused Milosevic recognise our jurisdiction and the jurisdiction of this Tribunal. The international community has created this Tribunal with limited territorial jurisdiction, that's true, but we do not have temporal restriction as was said this morning. We are asking, Mr. President, Your Honours, we are asking for the power to begin a trial against Mr. Milosevic. The three other principal reasons that I'm going to mention here are the Prosecutor's independence, because that is what is at stake here. In respect of the independence of the Court, there can be no challenge, because that's in law; and in respect that the Security Council urged the Prosecutor to do what she is doing must be an element which falls within the category of lack of independence.

I point out to the Tribunal Resolution 1160 of 31 March 1998, whereas the Prosecutor announced on the 10th of March, 1998, in public, that the investigation into what happened in Kosovo was going to begin. Therefore, I believe that that small press release of the 10th of March, 1998 should be given the importance that it deserves. ⁶⁰ Likewise, if the Security Council requested or urged the Prosecutor, what does that really mean? It simply means that the Prosecutor should be reminded of her original mandate in respect of the resolution which established this Tribunal; and in the second place, being involved in opening an investigation does not mean that one is going to immediately issue an indictment.

In respect of the Prosecutor's discretionary powers, Mr. President, I cannot agree that this be put into question, and I have no justification to provide for saying that. I heard this morning what was said. I don't have to provide any proof. This is a discretionary power subject to the mandate from the Security Council, and that is it. We are asking to be able to bring a trial against Mr. Milosevic, a former head of state, and this is the second argument, former head of state. Here people do not want to understand. People don't want to understand that this Tribunal was established by the international community explicitly in order to put an end to the impunity of the powerful people, the heads of states, and, therefore, a review of their individual criminal responsibility in the exercise of their function is the task of this Tribunal.

Permit me to say, Mr. President, that outside the Tribunal there are thousands of victims who are demanding justice. For this reason, no immunity for anybody, when what is involved are war crimes, crimes against humanity, and genocide. The Secretary-General's report to the Security Council in respect of the establishment of this Tribunal leaves absolutely no doubt on that issue, because we know that the heads of state entail ⁶¹ more significant responsibility for serious violations of international humanitarian law.

Today, Mr. President, this is the turn of the accused Milosevic, who is complaining - my last point - about an illegal transfer. I followed very carefully the transfer of the accused Milosevic, and I must tell you that he was arrested pursuant to a national warrant of arrest in his own country, and was transferred further to a decision of the government of Yugoslavia, the Republic of Yugoslavia, on the basis of a decree which was accepted and then suspended.

I am not going to go through the legislative CV of what happened in Yugoslavia, but this has absolutely nothing to do with the international obligation that we are familiar with, Article 29 of the Statute. The only thing I say is that at the time Yugoslavia became a member state of the United Nations, that obligation for Yugoslavia existed further to the obligations that every state would have. So the decision to transfer the accused was taken with full respect for the international obligations.

One final point, Mr. President - you'll see that I was very brief - is the fact that the amici curiae, the counsel, are asking to allow him to speak. I must say that we have some problems in respect of the review of the exculpatory documents because we do not have a person to speak with. I believe that I should find -- I must find a solution, and I call upon precedents in order to find that solution. Is it the accused himself that's going to look through all the documents? I'm now speaking about the application of Rule 68 which is just as important to me as any ⁶² other application of the procedural Rules. All this is to say to you, Mr. President, that I feel we must allow him to speak, that is, the accused Milosevic, of course within the limits that we set forth. I thank you, Mr. President.

JUDGE ROBINSON: Madam Prosecutor, if I understand the argument of the amici on the question of transfer, it is that the obligation under Article 29 of the Statute is an obligation of the state. In this respect, they are saying that the arrest warrants were issued to the Federal Republic of Yugoslavia when, in fact, the arrest and transfer were effected by the government of Serbia.

In that circumstance, they would see, as I understand it, that Rule 58 would not apply. Rule 58, as you know, is a Rule which says that the obligations in Article 29 prevail over any legal impediment to the surrender of an accused to the Tribunal.

Now, their contention is that the obligation is the obligation of the Federal Republic. What was implemented was a transfer by the Government of Serbia, and they contend that for that reason, the transfer is illegal.

I raise this because you refer to Article 29, but what they're saying is that Article 29 was not complied with and that Rule 58 would be inapplicable.

What do you say to that?

MS. DEL PONTE: [Interpretation] Yes, Your Honour. As you know, in the Yugoslav Federation, the central government of the Federation has no executing power; that is, all transfers, all decisions by the police or ⁶³ any bindings measures taken are carried out by the Republic of Serbia, the Republic of Serbia which executes and caries out the arrests and transfers, which is the case of the other accused who came from Belgrade. It is true that the decision is the one taken by the Federation. Now, the decision itself -- itself of the transfer is the Federation and Prime Minister Djindjic clearly mentioned the fact that the decision to carry out the transfer was taken and accepted by the Federation, but the very execution not only of the accused Milosevic of all things done by the police and the arrests that is were carried out and transfers that were made and searches, all of those fall within the province of the Republic of Serbia, and that is why the transport itself was carried out by the republic of Serbia.

JUDGE ROBINSON: You are saying that this was properly the responsibility of the Government of Serbia, the transfer?

MS. DEL PONTE: [Interpretation] Yes, absolutely. It is the Republic of Serbia which must execute the transfer.

JUDGE ROBINSON: In any event, I believe you would also say that the matter of the internal constitutional organisation of a state is irrelevant in a situation like this. There is a rule, Article 27 of the Vienna Convention on the Law of Treaties which prevents a party from invoking the provisions of its internal law as a justification for its failure to perform a treaty obligation. There is a treaty obligation here, and it must be performed.

In your brief, you -- I believe you mentioned that.

MS. DEL PONTE: [Interpretation] It is mentioned, that is, Rule 58 ⁶⁴ of the Rules of Procedure and Evidence, it says that the obligations --

[As read] in Article 29 of the Statute shall prevail [In English] [Previous translation continues] ... "any legal impediment to the surrender of transfer of the accused to the Tribunal which must exist under the national law or extradition treaties of the state concerned."

JUDGE ROBINSON: Thank you very much. The new point for me is what you say, that it was in fact the responsibility of the Government of Serbia to affect this transfer.

Perhaps we'll hear a response from that from the --

MS. DEL PONTE: [Interpretation] Yes.

JUDGE ROBINSON: Thank you.

JUDGE MAY: Madam Prosecutor, there is really two points that I want to cover before the adjournment. The first is this: You refer to customary international law not containing a right to defend oneself. I find that most surprising if it really does say that. It seems a fundamental right for anybody in a court to defend yourself. Maybe we can go into that at some other time.

The other point is the point about exculpatory evidence which of course is an important one, and it would seem to be sensible to discuss that during the Status Conference and decide what way of proceeding in relation to obligations in relation to it.

MS. DEL PONTE: [Interpretation] Yes, Mr. President. As regards defending oneself, I can give you the study that I had carried out by my specialist. It's a few pages long. It's interesting to read. And as regards the rest, Mr. President, we have to discuss that at the ^{65 BLANK PAGE 66} appropriate time, because indeed it is important. Thank you very much, Mr. President.

JUDGE MAY: Well, you can pass that document through. There is no reason to say that we will be bound by it.

We will adjourn now until half past, when we'll hear the accused.

--- Recess taken at 11.05 a.m.

--- On resuming at 11.30 a.m.

JUDGE MAY: Mr. Milosevic, it's now your opportunity to address us on the motions before us today. There's no need to repeat what's in the written submissions because we've read all those. It's also your opportunity to address us on the Prosecution motion to amend the indictment, if there's anything you want to say about that, it's now your chance to do so.

THE ACCUSED: [Interpretation] In the first place, I am not submitting any motions to this Court because I do not recognise this Court. If what I am saying into this microphone is considered by you to be a submission on my part, that's up to you.

Secondly, with respect to amicus curiae, it is my understanding that your explanation, when appointing the amicus curiae, was that thereby a contribution would be made to a fair trial, if in such an illegal proceedings one can talk of a fair trial. I think in doing so, you have added a new concept to a set of new concepts, because now we are in a situation when two teams are working for the cause of the same party. So this could now be termed as the "Hague fair play." As for this flood of new amendments and indictments, this deluge ⁶⁷ cannot flood and cover up the truth, because the truth is known to millions of people.

I have heard here, as I heard on the previous occasion, some concern because I am not reading the documents from this false indictment, because allegedly I should know what I am charged with. Let me tell you, I know very well what I am being accused of. I have been accused because in a legal way and with legitimate means on the basis of the right to self-determination that belongs to every nation, I defended my nation. I had the honour to defend my nation from the criminal aggression carried out against it, and to defend my people from terrorism whereby the Clinton Administration cooperated closely with. And this is also something that no one will be able to deny.

The truth cannot be sunk by any kind of flood of false accusations. And I have no intention still to familiarise myself with the contents of something that has been totally fabricated and that is far from the truth.

As for the polemics I have been listening to as to who was competent and who was not and whether a particular government should have done something prior to another government, I wonder and am astonished that not even the attorney from Belgrade, a member of the amicus curiae, that he should be speaking about competencies while forgetting that no government had the competence to enter into arrangements whereby the Constitution of Serbia and the Constitution of Yugoslavia was being violated.

I'm glad that the gentlemen from the amicus curiae are aware that ⁶⁸ they cannot speak on my behalf and that I have nothing in common with them.

JUDGE MAY: Very well. Thank you.

[Trial Chamber confers]

JUDGE MAY: We will consider the motions, preliminary motions, on which we've been addressed this morning. We've had the opportunity of considering the application to amend the indictment, and I'll give our ruling on that.

Rule 50 does not spell out any test to be applied in deciding whether leave to amend an indictment should be given. However, the cases in the Tribunal show that the fundamental question is whether the amendment would cause injustice or prejudice to the accused if it were granted.

In determining whether prejudice or injustice does arise, the issues a Trial Chamber must have in mind include the right of the accused to a fair and expeditious trial, including adequate time for preparation. On the other hand, the Prosecution are entitled to amend an indictment provided that the amendment is necessary and can be done without prejudicing the accused's right to a fair and expeditious trial. A Trial Chamber must balance these factors in coming to a decision.

In the present case, the amendments substantially amount to the addition of one count, the particularising of another count, the particularising of a theory of responsibility together with a modest increase in the factual allegations, to add a number of deportation sites ⁶⁹ to those already in the indictment, and to add some other factual matters.

We have in mind that this is the second amendment to an indictment which is already two years old, but any trial on this indictment is more than three months away at least, and the accused, therefore, has adequate time for preparation.

These amendments amount to a relatively insubstantial change in the indictment and occasion no prejudice or unfairness to the accused. In fact, they amount to an improvement by clarifying the Prosecution case, in particular, on joint enterprise and persecution. Accordingly, leave to amend the indictment will be granted.

[Further Initial Appearance]

JUDGE MAY: We now turn to the next stage, which is the reading of the Kosovo indictment. The second amended indictment will now be read, as Rule 62 provides, in a language which the accused speaks and understands. Let the indictment be read.

THE REGISTRAR: [Interpretation] The Prosecutor of the International Tribunal against Slobodan Milosevic and others. Second Amended Indictment.

The Prosecutor of the International Criminal Tribunal for the former Yugoslavia, pursuant to her authority under Article 18 of the Statute of the International Criminal Tribunal for the former Yugoslavia, charges Slobodan Milosevic and others with crimes against humanity and violations of the laws or customs of war as set forth below. Accused. Slobodan Milosevic was born on the 20th of August, 1941, ⁷⁰ in the town of Pozarevac in present-day Republic of Serbia. In 1964, he received a law degree from the University of Belgrade and began a career in management and banking. Slobodan Milosevic held the posts of deputy director and later general director at Tehnogas, a major gas company until 1978. Thereafter, he became president of Beogradska banka, one of the largest banks in the former Socialist Federal Republic of Yugoslavia, the SFRY, and held that post until 1983.

In 1983, Slobodan Milosevic began his political career. He became Chairman of the City Committee of the League of Communists of Belgrade in 1984. In 1986, he was elected Chairman of the Presidium of the Central Committee of the League of Communists of Serbia, and was re-elected in 1988. On the 16th of July, 1990, the League of Communists of Serbia and the Socialist Alliance of the Working People of Serbia were united. A new party was named the Socialist Party of Serbia, or the SPS, and Slobodan Milosevic was elected its president. He continued to hold the post of the President of the SPS as of the date of this indictment. Slobodan Milosevic was elected President of the Presidency of Serbia on the 8th of May, 1989, and re-elected on the 5th of December that same year. After the adoption of the new constitution of Serbia on the 28th of September, 1990, Slobodan Milosevic was elected to the newly established office of President of Serbia in multiparty elections held on the 9th and 26th of December, 1990. He was re-elected on the 20th of December, 1992.

After serving two terms as President of Serbia, Slobodan Milosevic was elected President of the Federal Republic of Yugoslavia, or the FRY, ⁷¹ on the 15th of July, 1997, and he began his official duties on the 23rd of July, 1997. Following defeat in the September 2000 FRY presidential elections, Slobodan Milosevic stepped down from this position on the 6th of October, 2000. At all times relevant to this indictment, Slobodan Milosevic held the post of President of the FRY. Paragraphs 5 to 15 deal with other individuals; therefore, we continue with the reading of the indictment as of paragraph 16. Individual Criminal Responsibility.

Article 7(1) of the Statute of the Tribunal. Each of the accused is individually responsible for the crimes alleged against him in this indictment under Articles 3, 5, and 7(1) of the Statute of the Tribunal. The accused planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation, or execution of these crimes. By using the word "committed" in this indictment, the Prosecutor does not intend to suggest that any of the accused physically perpetrated any of the crimes charged personally. "Committing" in this indictment refers to participation in a joint criminal enterprise as a co-perpetrator. The purpose of this joint criminal enterprise was inter alia the expulsion of a substantial portion of the Kosovo Albanian population from the territory of the province of Kosovo in an effort to ensure continued Serbian control over the province. To fulfil this criminal purpose, each of the accused, acting individually or in concert with each other, and with others known and unknown, significantly contributed to the joint criminal enterprise using the de jure and de facto powers available to him. ⁷² This joint criminal enterprise came into existence no later than October 1998, and continued throughout the time period when the crimes alleged in Counts 1 to 5 of this indictment occurred, beginning on or about the 1st of January, 1999 and continuing until the 20th of June, 1999. A number of individuals participated in this joint criminal enterprise during the entire duration of its existence, or alternatively at different times during the duration of its existence, including the accused Slobodan Milosevic and others known and unknown. The crimes enumerated in Counts 1 to 5 in this indictment were within the object of the joint criminal enterprise. Alternatively, the crimes enumerated in Counts 3 to 5 were natural and foreseeable consequences of the joint criminal enterprise, and the accused were aware that such crimes were the likely outcome of the joint criminal enterprise. Despite their awareness of the foreseeable consequences, Slobodan Milosevic and others known and unknown knowingly and wilfully participated in the joint criminal enterprise. Each of the accused and other participants in the joint criminal enterprise shared the intent and state of mind required for the commission of each of the crimes charged in Counts 1 to 5. On this basis, under Article 7(1) of the Statute, each of the accused and other participants in the joint criminal enterprise bear individual criminal responsibility for the crimes alleged in Counts 1 to 5. Article 7(3) of the Statute of the Tribunal.

Slobodan Milosevic and other accused, while holding positions of superior authority, are also individually criminally responsible for the ⁷³ acts or omissions of their subordinates pursuant to Article 7(3) of the Statute of the Tribunal. A superior is responsible for the criminal acts of his subordinates if he knew or had reason to know that his subordinates were about to commit such acts, or had done so, and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators.

Slobodan Milosevic was elected President of the FRY on the 15th of July, 1997, and assumed office on the 23rd of July, 1997. At all times relevant to this indictment he held the post of President of the FRY. As President of the FRY, Slobodan Milosevic was President of the Supreme Defence Council of the FRY. The Supreme Defence Council consists of the President of the FRY and the Presidents of the member republics Serbia and Montenegro. The Supreme Defence Council decides on the National Defence Plan and issues decisions concerning the VJ or Yugoslav army. As President of the FRY, Slobodan Milosevic had the power to order implementation of the National Defence Plan and command the VJ in war and peace, pursuant to decisions made by the Supreme Defence Council. Slobodan Milosevic, as Supreme Commander of the VJ, performed these duties through commands, orders, and decisions.

Under the FRY Law on Defence, as Supreme Commander of the VJ, Slobodan Milosevic also exercised command authority over republican police units subordinated to the VJ during a state of imminent threat of war or a state of war. A declaration of imminent threat of war was proclaimed on the 23rd of March, 1999, and a state of war, on the 24th of March, 1999. In addition to his de jure powers, at all times relevant to this ⁷⁴ indictment, Slobodan Milosevic exercised extensive de facto control over numerous institutions essential to or involved in the conduct of the offences alleged herein. Slobodan Milosevic exercised extensive de facto control over federal institutions nominally under the competence of the assembly or the government of the FRY. Slobodan Milosevic also exercised de facto control over functions and institutions nominally under the competence of Serbia and its autonomous provinces including the Serbian police force. Slobodan Milosevic further exercised de facto control over numerous aspects of the FRY's political and economic life, particularly the media. Between 1986 and the early 1990s, Slobodan Milosevic progressively required de facto control over these federal, republican, provincial, and other institutions.

Slobodan Milosevic's de facto control over Serbian, SFRY, FRY, and other state organs stemmed in part from his leadership of the two principal political parties that ruled in Serbia from 1986 to 2000, and in the FRY from 1992 to the year 2000. From 1986 until 1990, he was Chairman of the Presidium of the Central Committee of the League of Communists in Serbia, then the ruling party in Serbia. In 1990, he was elected President of the Socialist Party of Serbia, the successor party to the League of Communists of Serbia and the Socialist Alliance of the Working People of Serbia. Throughout the period of his Presidency of Serbia from 1990 to 1997 and as the President of the FRY from 1997 to the year 2000 Slobodan Milosevic was also the leader of the SPS. Beginning no later than October 1988 and at all times relevant to this indictment, Slobodan Milosevic exercised de facto control over the ^{75 BLANK PAGE 76} ruling and governing institutions of Serbia, including the MUP. Beginning no later than October 1988, he exercised de facto control over Serbia's two autonomous provinces, Kosovo and Vojvodina, and their representation in the SFRY and the FRY. From no later than October 1988 until mid-1998, Slobodan Milosevic also exercised de facto control over the ruling and governing institutions of the Republic of Montenegro, including its representation in all federal organs of the SFRY and the FRY. In significant international negotiations, meetings, and conferences since 1989 and at all times relevant to this indictment, Slobodan Milosevic was the primary interlocutor with whom the international community negotiated. He negotiated international agreements that were subsequently implemented within Serbia, the SFRY, the FRY, and elsewhere on the territory of the SFRY. Among the conferences and international negotiations at which Slobodan Milosevic was the primary representative of the SFRY and FRY are the following: the Hague primary representative of the FRY, the Paris -- the Hague Conference in 1991; the Paris negotiations of March 1993; the International Conference on the former Yugoslavia in January 1993; the Vance-Owen Peace Plan negotiations between January and May 1993; the Geneva peace talks in the summer of 1993; the Contact Group meeting in June 1994; the negotiations for a ceasefire in Bosnia-Herzegovina between the 9th and 14th of September, 1995; the negotiations to end the bombing by the North Atlantic Treaty Organisation, NATO, in Bosnia-Herzegovina, from the 14th to the 20th of September, 1995; and the Dayton peace negotiations in November 1995. As the President of the FRY, the Supreme Commander of the VJ and ⁷⁷ the President of the Supreme Defence Council and pursuant to his de facto authority, Slobodan Milosevic is personally responsible for the actions of his subordinates within the forces of the FRY and Serbia which included the VJ, the Republic of Serbia Ministry of Interior or MUP, military Territorial Units, Civil Defence Units and other armed groups operating under the authority or with the knowledge of the eight accused and their subordinates who committed the crimes alleged in Counts 1 to 5 of this indictment.

Slobodan Milosevic, as President of the FRY, Supreme Commander of the VJ, and President of the Supreme Defence Council is also or alternatively criminally responsible for the acts of his subordinates pursuant to Article 7(3) of the Tribunal's Statute, including but not limited to members of the VJ and the aforementioned personnel of other forces of the FRY and Serbia for the crimes alleged in Counts 1 to 5 of this indictment. In addition, Slobodan Milosevic, pursuant to his de facto authority, is also or alternatively criminally responsible for the acts of his subordinates pursuant to Article 7(3) of the Tribunal's Statute, including members of the VJ and employees of the MUP, for the crimes alleged in Counts 1 to 5 of this indictment. Paragraphs 29 to 52 relate to other accused and, therefore, we continue with the reading of this indictment with paragraph 53. Charges. Following the commencement of the joint criminal enterprise beginning on or about the 1st of January, 1999, and continuing until 20th of June, 1999, Slobodan Milosevic and others known and unknown planned, instigated, ordered, committed, or otherwise aided and abetted a ⁷⁸ deliberate and widespread or systematic campaign of terror and violence directed at Kosovo Albanian civilians living in Kosovo in the FRY. The deliberate and widespread or systematic campaign of terror and violence directed at the Kosovo Albanian population was executed by the forces of the FRY and Serbia acting at the direction, with the encouragement, or with the support of Slobodan Milosevic and others known and unknown. Forces of the FRY and Serbia undertook the operations targeting the Kosovo Albanians with the objective of expelling a substantial portion of the Kosovo Albanian population from Kosovo in an effort to ensure continued Serbian control over the province. To achieve this objective, the forces of the FRY and Serbia, acting in concert, engaged in well-planned and coordinated operations as described in paragraphs 55 to 61.

The forces of the FRY and Serbia, in a deliberate and widespread or systematic manner forcibly expelled hundreds of thousands of Kosovo Albanians from their homes and internally displaced them within Kosovo. To facilitate these expulsions and displacements, forces of the FRY and Serbia intentionally created an atmosphere of fear and oppression through the use of force, threats of force, and acts of violence. Throughout Kosovo, the forces of FRY and Serbia engaged in a deliberate and widespread or systematic campaign of destruction of property owned by Kosovo Albanian citizens. This was accomplished by the widespread shelling of towns and villages, the burning and destruction of property, including homes, farms, businesses, cultural monuments, and religious sites, and the destruction of personal property. As a result of ⁷⁹ these orchestrated actions, villages, towns, and entire regions were made uninhabitable for Kosovo Albanians.

In addition to the deliberate destruction of property owned by Kosovo Albanian civilians, forces of the FRY and Serbia committed widespread or systematic acts of brutality and violence against Kosovo Albanian civilians in order to perpetuate the climate of fear, create chaos and a pervading fear for life. Forces of the FRY and Serbia went from village to village and in the towns and cities, from area to area, threatening and expelling the Kosovo Albanian population. Kosovo Albanians were frequently intimidated, assaulted, or killed in public view to enforce the departure of their families and neighbours. Many Kosovo Albanians, who were not directly forcibly expelled from their communities, fled as a result of the climate of terror created by the widespread or systematic beatings, harassment, sexual assaults, unlawful arrests, killings, shelling, and looting carried out across the province. Forces of the FRY and Serbia persistently subjected Kosovo Albanians to insults, racial slurs, degrading acts and other forms of physical and psychological mistreatment based on their racial, religious, and political identification. All sectors of Kosovo Albanian society were displaced including women, children, the elderly, and the infirm. Thousands of Kosovo Albanians who fled their homes as a result of the conduct of the forces of the FRY and Serbia and the deliberate climate of terror that pervaded the territory the Kosovo, joined convoys of persons that moved towards Kosovo's borders with the Republic of Albania and the former Yugoslav Republic of Macedonia. Across the routes from the ⁸⁰ border crossings forces of the FRY and Serbia manned checkpoints where the displaced Kosovo Albanians were subjected to further beatings, extortion, robbery, harassment, assaults, illegal arrests, and killings. At other times, forces of the FRY and Serbia escorted groups of expelled Kosovo Albanians to the borders. By these methods, the forces of the FRY and Serbia maintained control over the movement of displaced Kosovo Albanians to the borders. Displaced Kosovo Albanians often arrived at the borders of Kosovo on foot in convoys of several thousand persons, or carried by tractors, trailers, and trucks, as well as on trains, buses, or trucks which were organised and provided by forces of the FRY and Serbia. In addition, thousands of Kosovo Albanians who fled their homes and were thereby forcibly transferred as a result of the conduct of the forces of the FRY and Serbia and the deliberate climate of terror that persuaded the territory of Kosovo were forced to seek shelter for days, weeks, or months in other towns and villages and/or in forests and mountains throughout the province. Some of these internally displaced persons remained inside the province of Kosovo throughout the time period relevant to this indictment, and many persons died as a consequence of the harsh weather conditions, insufficient food, inadequate medical attention, and exhaustion. Others eventually crossed over one of the Kosovo borders into Albania, Macedonia, Montenegro, or crossed the provincial boundary between Kosovo and Serbia. Forces of the FRY and Serbia controlled and coordinated the movements of many internally displaced Kosovo Albanians until they were finally expelled from Kosovo. .

Throughout Kosovo, in a deliberate and widespread or systematic ⁸¹ effort to deter expelled Kosovo Albanians from returning to their homes, forces of the FRY and Serbia looted and pillaged the personal and commercial property belonging to Kosovo Albanians. Forces of the FRY and Serbia used wholesale searches, threats of force and acts of violence to rob Kosovo Albanians of money and valuables. And in a widespread or systematic manner, authorities at FRY border posts stole personal vehicles and other property from Kosovo Albanians being deported from the province.

In addition, throughout Kosovo, forces of the FRY and Serbia systematically seized and destroyed the personal identity documents and licenses of vehicles belonging to Kosovo Albanian civilians. As Kosovo Albanians were forced from their homes and directed towards Kosovo's borders, they were subjected to demands to surrender identity documents at selected points en route to border crossings and at border crossings with Albanian and Macedonia. These actions were undertaken in order to erase any record of the deported Kosovo Albanians presence in Kosovo and to deny them the right to return to their homes.

Count 1. Deportation. The Prosecutor re-alleges and incorporates by reference paragraphs 55 to 61.

Beginning on or about the 1st of January, 1991, and continuing until the 20th of June, 1999, forces of the FRY and Serbia, acting at the direction, with encouragement, or with the support of Slobodan Milosevic, and others known and unknown, perpetrated the actions set forth in paragraphs 55 through 61, which resulted in the forced deportation of ⁸² approximately 800,000 Kosovo Albanian civilians. To facilitate these expulsions and displacements, forces of the FRY and Serbia deliberately created an atmosphere of fear and oppression through the use of force, threats of force, and acts of violence as described above in paragraphs 55 to 61. Throughout Kosovo, forces of the FRY and Serbia systematically shelled towns and villages, burned homes and farms, damaged and destroyed Kosovo Albanian cultural and religious institutions, murdered Kosovo Albanian civilians, and sexually assaulted Kosovo Albanian women. These actions were undertaken in all areas of Kosovo, and these deliberate means and methods were used throughout the province, including the following municipalities:

Orahovac. On the morning of the 25th of March, 1999, forces of the FRY and Serbia surrounded the village of Celina with tanks and armoured vehicles. After shelling the village, forces of the FRY and Serbia entered the village and systematically looted and pillaged everything of value from the houses, set houses and shops on fire, and destroyed the old mosque. Most of the Kosovo Albanian villagers had fled to a nearby forest before the army and police arrived. On the 28th of March, 1999, forces of the FRY and Serbia forced the thousands of people hiding in the forest to come out. After marching the civilians to a nearby village, the men were separated from the women and were beaten, robbed, and all of their identity documents were taken from them. The men were then marched to Prizren and eventually forced to go to Albania. On the 25th of March, 1999, a large group of Kosovo Albanians went to a mountain near the village of Nogavac, also in Orahovac municipality, ⁸³ seeking safety from attacks on nearby villages. Forces of the FRY and Serbia surrounded them, and on the following day, ordered the 8,000 people who had sought shelter on the mountain to leave. The Kosovo Albanians were forced to go to a nearby school, and then they were forcibly dispersed into nearby villages. After three or four days, forces of the FRY and Serbia entered the villages, went from house to house and ordered people out. Eventually, they were forced back into houses and told not to leave. Those who could not fit inside the houses were forced to stay in cars and tractors parked nearby. On the 2nd of April, 1999, forces of the FRY and Serbia started shelling the villagers, killing a number of people who had been sleeping in tractors and cars. Those who survived headed for the Albanian border. As they passed through other Kosovo Albanian villages which had been destroyed, they were taunted by forces of the FRY and Serbia. When the villagers arrived at the border, all their identification papers were taken from them. In the course of the expulsions throughout the entire municipality of Orahovac, forces of the FRY and Serbia systematically burned houses, shops, cultural monuments, and religious sites belonging to Kosovo Albanians. Several mosques were destroyed, including the mosques of Bela Crkva, Brestovac, Velika Krusa and others.

Prizren. On the 25th of March, 1999, the village of Pirane was surrounded by forces of the FRY and Serbia with tanks and various military vehicles. The village was shelled and a number of the residents were killed. Thereafter, forces of the FRY and Serbia entered the village and burned the houses of Kosovo Albanians. After the attack, the remaining ⁸⁴ villagers left Pirane and went to surrounding villages. In the town of Landovica, an old mosque was burned and heavily damaged by forces of the FRY and Serbia. Some of the Kosovo Albanians fleeing towards Srbica were killed or wounded by snipers. Forces of the FRY and Serbia then launched an offensive in the area of Srbica and shelled the villages of Donji Retimlje, Retimlje, and Randubrava. Kosovo Albanian villagers were forced from their homes and sent to the Albanian border. From the 28th of March, 1999, in the city of Prizren itself, forces of the FRY and Serbia went from house to house ordering Kosovo Albanian residents to leave. They were forced to join convoys of vehicles and persons travelling on foot to the Albanian border. En route, members of the forces of the FRY and Serbia beat and killed Kosovo Albanian men, separated Kosovo Albanian women from the convoy, and sexually assaulted the women in view of others. At the border all personal documents were taken away by forces of the FRY and Serbia.

Srbica. Beginning on or about the 25th of March, 1999, forces of the FRY and Serbia attacked and destroyed the villages of Vojnike, Leocina, Kladernica, Turicevac, and Izbica by shelling and burning. Many of the houses, shops, and mosques were destroyed, including the mosque in the center of the village of Cirez. Some women and children were taken away by members of the forces of the FRY and Serbia and held in a barn in Cirez. The women were subjected to sexual assault, and their money and property were stolen. At least eight of the women were killed after being sexually assaulted, and their bodies were thrown into three wells in the village of Cirez. On or about the 28th of March, 1999, a group of at ^{85 BLANK PAGE 86} least 4,500 Kosovo Albanians from these villages gathered in the village of Izbica where members of the forces of the FRY and Serbia demanded money from these Kosovo Albanians and separated the men from the women and children. A large number of the men were then killed. The surviving women and children were forcibly moved as a group towards Klina, Djakovica, and eventually to the Albanian border. Suva Reka. On the morning of the 25th of March, 1999, forces of the FRY and Serbia surrounded the town of Suva Reka. During the following days, police officers went from house to house, threatening, assaulting, and killing Kosovo Albanian residents, and removing many of the people from their homes at gunpoint. Many houses and shops belonging to Kosovo Albanians were set on fire, and a mosque in Suva Reka was damaged. The women, children, and elderly were sent away by the police, and then a number of the men were killed by the forces of the FRY and Serbia. The Kosovo Albanians were forced to flee, making their way in trucks, tractors, and trailers towards the border with Albania. While crossing the border, their documents and money were taken away. On the 31st of March, 1999, approximately 80,000 Kosovo Albanians displaced from villages in the Suva Reka municipality gathered near Belanica. The following day, forces of the FRY and Serbia shelled the village of Belanica, forcing the displaced persons to flee towards the Albanian border. Prior to crossing the border, their identification documents were taken away from them.

Pec. On or about the 27th and 28th of March, 1999, in the city of Pec, forces of the FRY and Serbia went from house to house, forcing Kosovo ⁸⁷ Albanians to leave. Some houses were set on fire, and a number of people were shot. Soldiers and police were stationed along every street, directing the Kosovo Albanians towards the town center. Once the people reached the center of town, those without cars or vehicles were forced to get on buses or trucks and were driven to the town of Prizren. Outside Prizren, the Kosovo Albanians were forced to get off the buses and trucks and walk approximately 15 kilometres to the Albanian border where, prior to crossing the border, they were ordered to turn their identification papers over to Serb policemen.

Kosovska Mitrovica. Beginning on or about the 25th of March, 1999, and continuing through the middle of April 1999, forces of the FRY and Serbia began moving systematically through the town of Kosovska Mitrovica. They entered the homes of Kosovo Albanians and ordered the residents to leave their houses at once and to go to the bus station. Some houses were set on fire, forcing the residents to flee to other parts of the town. At least one of the mosques of the town was burned and damaged. Over a three-week period, the forces of the FRY and Serbia continued to expel the Kosovo Albanian residents of the town. During this period, properties belonging to Kosovo Albanians were destroyed, Kosovo Albanians were robbed of money, vehicles, and other valuables, and Kosovo Albanian women were sexually assaulted. A similar pattern was repeated in other villages in the Kosovska Mitrovica municipality, where forces of the FRY and Serbia forced Kosovo Albanians from their homes and destroyed the villages. The Kosovo Albanian residents of the municipality were forced to join convoys going to the Albanian border via the towns of Srbica, Pec, ⁸⁸ Djakovica and Prizren. En route to the border, forces of the FRY and Serbia robbed them of valuables and seized their identity documents. Pristina. Beginning on or about the 24th of March, 1999, and continuing through the end of May 1999, Serbian police went to the homes of Kosovo Albanians in the city of Pristina and forced the residents to leave. During the course of these forced expulsions, a number of people were killed. Many of those forced from their homes went directly to the train station, while others sought shelter in nearby neighbourhoods. Hundreds of ethnic Albanians, guided by Serb police at all the intersections, gathered at the train station and then were loaded onto overcrowded trains or buses after a long wait, during which time no food or water was provided. Those on the trains went as far as Dzeneral Jankovic village near the Macedonian border. During the train ride, many people had their identification papers taken from them. After getting off the trains, forces of the FRY and Serbia told the Kosovo Albanians to walk along the tracks into Macedonia since the surrounding land had been mined. Those who tried to hide in Pristina were eventually expelled in a similar fashion. During the course of these forced expulsions, a number of people were killed and several women were sexually assaulted. During the same period, forces of the FRY and Serbia entered the villages of Pristina municipality, where they beat and killed many Kosovo Albanians, robbed them of their money, looted their property, and burnt their homes. Many of the villagers were taken by truck to the town of Glogovac, in the municipality of Glogovac. From there they were transported to Dzeneral Jankovic and walked to the Macedonian border. ⁸⁹ Others, after making their way to the town of Urosevac, were ordered by the forces of the FRY and Serbia to take a train to Dzeneral Jankovic, from where they walked across the border into Macedonia. Djakovica. By March 1999, the population of the town of Djakovica had increased significantly due to the large number of internally displaced persons who fled their villages to escape deliberate shelling by forces of the FRY and Serbia during 1998, and to escape the armed conflict between these forces and members of the Kosovo Liberation Army. The continual movement of these internally displaced persons increased after the 24th of March, 1999, when, following violent expulsions in the town of Djakovica, many internally displaced persons returned from the town of Djakovica to the outlying villages only to be expelled from these villages again by forces of the FRY and Serbia. Serb forces controlled and coordinated the movement of these internally displaced persons as they travelled from these villages and -- these villages to and from the town of Djakovica and finally to the border between Kosovo and the Republic of Albania. Persons travelling on foot were sent from the town of Djakovica directly toward one of several border crossings. Persons travelling in motor vehicles were routed first towards the town of Prizren before approaching the border and crossing into the Republic of Albania. From on or about the 24th of March 1999, through the 11th of May, 1999, forces of the FRY and Serbia began forcing residents of the town of Djakovica to leave. Forces of the FRY and Serbia spread out throughout the town and went from house to house ordering Kosovo Albanians from their homes. In some instances, people were killed and many persons were ⁹⁰ threatened with death. Many of the houses and shops belonging to Kosovo Albanians were set on fire while those belonging to Serbs were protected. On the 24th of March, 1999, the old mosque in Rogovo and the old historic quarter of Djakovica, which included the bazaar, the Hadum mosque, and the adjoining Islamic library were among the several cultural sites substantially and/or totally destroyed. During the period from the 2nd to the 4th of April, 1999, thousands of Kosovo Albanians living in the town of Djakovica and neighbouring villages joined a large convoy either on foot or driving in cars, trucks, and tractors and moved to the border with Albania. Forces of the FRY and Serbia directed those fleeing along pre-arranged routes and at checkpoints along the way most Kosovo Albanians had their identification papers and licence plates seized. In some instances, Yugoslav army trucks were used to transport persons to the border with Albania.

In addition, during late March and April 1999, forces of the FRY and Serbia forcibly expelled the Kosovo Albanian residents of many villages of the Djakovica municipality, including the villages of Drobros, Korenica, and Meja. Many of these residents were subsequently ordered or permitted to return to their communities only to be expelled again by forces of the FRY and Serbia. On or about the early morning hours of the 27th of April, 1999, forces of the FRY and Serbia launched a massive attack against the Carragojs, Erenik, and Trava Valleys of the Djakovica municipality, including the remaining residents of the aforementioned villages, in order to drive the population out of the area. A large number of soldiers and policemen were deployed and several checkpoints ⁹¹ were established. In Meja, Korenica, and Meja Orize, a large and as yet undetermined number of Kosovo Albanian civilian males were separated from the mass of fleeing villagers, abducted and executed. Throughout the entire day, villages under direct threat of the forces of the FRY and Serbia left their homes and joined several convoys of refugees using tractors, horse carts, and cars and eventually crossed into Albania. Forces of the FRY and Serbia confiscated the identity documents of many of the Kosovo Albanians before they crossed the border. Gnjilane. The forces of the FRY and Serbia entered the town of Prilepnica on the 6th of April, 1999 or thereabouts, and ordered residents to leave, saying that the town would be mined the next day. The townspeople left and tried to go to another village, but forces of the FRY and Serbia turned them back. On the 13th of April, 1999, residents of Prilepnica were again informed that the town had been evacuated by the following day. The next morning, the Kosovo Albanian residents left in a convoy of approximately 500 vehicles. Shortly after the residents left, the houses in Prilepnica were set on fire. Throughout the entire municipality of Gnjilane, forces of the FRY and Serbia systematically burned and destroyed houses, shops, cultural monuments, and religious sites belonging to Kosovo Albanians, including a mosque in Vlastica. Kosovo Albanians and in other villages in Gnjilane municipality were also forced from their homes. Thousands of displaced persons from villages such as Zegra, Nosalje, and Vladovo sought shelter in the village of Donja Stubla located in the Vitina municipality. Many of these displaced persons from Gnjilane crossed Kosovo's boundary with the province of ⁹² Serbia where they suffered similar harassment and mistreatment to that which they experienced in Kosovo before entering Macedonia. Others travelled directly to Macedonia. When the Kosovo Albanians reached the border with Macedonia, forces of the FRY and Serbia confiscated their identification papers.

Urosevac. During the period between 24th of March, and the 14th of April, 1999, forces of the FRY and Serbia shelled and attacked the villages in the Urosevac municipality, including Biba, Muhadzer Prelez, and Star Selo, killing a number of residents. After the shelling, forces of the FRY and Serbia entered some of the villages including Papaz and Sojevo, and ordered the residents to leave. Other Kosovo Albanians from Varos Selo and Mirosavlje fled their villages as the Serb forces entered. After the residents left their homes, the soldiers and policemen burnt the houses. The displaced persons went to the town of Urosevac where most boarded trains which carried them to the Macedonian border, crossing at Dzeneral Jankovic. Serb forces directed the train passengers to walk on the railroad tracks to the border. Others travelled in convoys from Urosevac to the same border crossing. At the border, Serb forces confiscated all of their documents.

Kacanik. Between March and May 1999, forces of the FRY and Serbia attacked villages in the Kacanik municipality and the town of Kacanik itself. This had -- as a result, the destruction of houses and the mosque in the Ivaja valley [sic].

On or about the 8th of March, 1999, forces of the FRY and Serbia attacked and partially burned the village of Kotlina. On the 24th of ⁹³ March, 1999, forces of the FRY and Serbia attacked Kotlina again with heavy weapon systems and soldiers. Many of the male residents of the Kotlina fled into nearby forests during this attack while forces of the FRY and Serbia ordered the women, children, and elderly to board trucks which took them towards the Kacanik. Those who could not fit into the trucks were compelled to walk behind them towards Kocanik. A number of male residents of Kotlina were killed during this attack, including at least 17 men whose bodies were thrown into wells. Before departing Kotlina forces of the FRY and Serbia burnt the remainder of the village. Many of the survivors fled to Macedonia.

On or about the 27th and 28th of March, 1999, forces of the FRY and Serbia attacked the town of Kacanik. Forces of the FRY and Serbia harassed, detained, beat, and shot many Kosovo Albanian residents of the Kacanik. Thousands of persons fled to nearby forests and eventually walked across the border into Macedonia. Other displaced persons from the town of Kacanik and nearby villages walked to the village of Stagovo where they boarded trains that took them to the Macedonian border. On or about the 13th of April, 1999, forces of the FRY and Serbia surrounded the village of Slatina and the hamlet of Vata. After shelling the village, infantry troops and police entered the village and looted and burnt the houses. During this action, 13 civilians were shot and killed. Following this attack, much of the population of Slatina fled to Macedonia.

On or about the 25th of May, 1999, forces of the FRY and Serbia attacked the village of Dubrava in the municipality of Kacanik. During ⁹⁴ the attack, forces of the FRY and Serbia killed several Kosovo Albanian residents of the Dubrava. Many residents of Dubrava formed a convoy of tractors and trailers and fled to Macedonia. Other residents fled to other villages or into forests before eventually crossing the border into Macedonia.

Decani. On or about the 29th of March, 1999, forces of the FRY and Serbia surrounded and attacked the village of Beleg and other surrounding villages in the Decani municipality. Forces of the FRY and Serbia went from house to house and told villagers to leave their houses immediately. About 300 men, women, and children were moved out of their homes and gathered in a nearby field in the village of Beleg. Forces of the FRY and Serbia ordered all men and women to undress and all their personal property was taken away. Men were separated from women and children and taken to the basement of an unfinished house near the field. Women and children were ordered to go to another house. During the night, at least three women were sexually assaulted. The next day, forces of the FRY and Serbia told the villagers to leave the village in trucks and tractors and go to Albania.

Vucitrn. On or about the 27th of March, 1999, forces of the FRY and Serbia began to burn houses in the town of Vucitrn and burnt the main mosque in that town. On or about the 2nd of May, 1999, forces of the FRY and Serbia attacked a number of villages north-east of the town of Vucitrn, including the villages of Skrovna, Slakovce, Cecelija, and Gornja Sudimlja. The villagers were forced out of their homes and many of their houses, shops and religious sites were completely burnt, the villagers, as ^{95 BLANK PAGE 96} well as persons previously displaced from other communities in the Vucitrn municipality were forced to form a convoy of approximately 20.000 people travelling on the Studime Gorge road in the direction of the town of Vucitrn. In the course of these actions, forces of the FRY and Serbia harassed, beat, and robbed the Kosovo Albanians travelling in the convey and killed approximately 104 Kosovo Albanians. Thousands of Kosovo Albanians in this convoy were detained by forces of the FRY and Serbia in the agriculture cooperative near the town of Vucitrn. On or about the 3rd of May, 1999, forces of the FRY and Serbia, at the agriculture cooperative separated Kosovo Albanian men of military age from women, children, and the elderly. The Kosovo Albanian women, children, and elderly were directed to travel to Albania, and a number of Kosovo Albanian men were forced to drive vehicles that carried the women, children, and elderly to the Albanian border. The forces of the FRY and Serbia transported hundreds of Kosovo Albanian men of military age from the agriculture cooperative to a prison in the village of Smrekovrica. After several weeks of detention in inhumane conditions where they were subjected to beatings, torture, and murder, many of these Kosovo Albanian men were transported to the village of Zur near the Albanian border and forced to cross the border into Albania.

By these acts and omissions, Slobodan Milosevic and others known and unknown planned, instigated, ordered, committed, or otherwise aided and abetted the planning, preparation, or execution of: Count 1: Deportation, a crime against humanity, punishable under Article 5(d) of the Statute of the Tribunal. ⁹⁷ Count 2: Other inhumane acts, forcible transfer. With respect to those Kosovo Albanians who were internally displaced within the territory of Kosovo, the Prosecutor re-alleges and incorporates by references paragraphs 55 to 61 and, in particular, paragraph 59.

By these acts and omissions Slobodan Milosevic and others known and unknown planned, instigated, ordered, committed, or otherwise aided and abetted the planning, preparation, or execution of: Count 2: Other inhumane acts, forcible transfer, a crime against humanity, punishable under Article 5(i) of the Statute of the Tribunal. Counts 3 and 4: Murder.

The Prosecutor re-alleges and incorporates by reference paragraphs 55 to 63.

Beginning on or about January the 1st, 1999 and continuing until the 20th of June, 1999, forces of the FRY and Serbia, acting at the direction, with the encouragement, or with the support of Slobodan Milosevic and others known and unknown murdered hundreds of Kosovo Albanian citizens. These killings occurred in a widespread or systematic manner throughout the province of Kosovo and resulted in the deaths of numerous men, women, and children. Included among the incidents of mass killings are the following:

On or about the 15th of January, 1999, in the early morning hours, the village of Racak was attacked by forces of the FRY and Serbia in Stimlje municipality. After shelling, forces of the FRY and Serbia entered the village later in the morning and began conducting ⁹⁸ house-to-house searches. Villagers who attempted to flee from the forces of the FRY and Serbia were shot throughout the village. A group of approximately 25 men attempted to hide in a building but were discovered by the forces of the FRY and the police. They were beaten and then were removed to a nearby hill where they were shot and killed. Altogether, the forces of the FRY and Serbia killed approximately 45 Kosovo Albanians in and around Racak. Those persons killed who are known by name are set forth in Schedule A which is attached as an appendix to this indictment. On or about the 25th of March, 1999, forces of the FRY and Serbia surrounded and attacked the village of Bela Crkva in Orahovac municipality. Many of the residents of Bela Crkva fled along the Belaja River outside the village and were forced to seek shelter at a railroad bridge. As the forces of the FRY and Serbia approached the bridge, they opened fire on a number of villagers, killing 12 persons including 10 women and children. A two-year-old child survived this incident of the forces of the FRY and Serbia then ordered the remaining villagers out of the streambed, at which time the men and older boys were separated from the elderly men, women, and children. The forces of the FRY and Serbia ordered the men and older boys to strip and then systematically robbed them of all valuables. The women and children were then ordered to leave towards an adjacent village called Zrze. The doctor from Bela Crkva attempted to speak with the commander of the attacking forces, but he was shot and killed, as was his nephew. The remaining men and older boys were then ordered back into the streambed. After they complied, the forces of the FRY and Serbia opened fire on these men and older boys, killing ⁹⁹ approximately 65 Kosovo Albanians. A number of men and older boys survived this incident, and other persons hiding in the vicinity also witnessed this incident. In addition, forces of the FRY and Serbia also killed six men found hiding in an irrigation ditch in the vicinity. Those persons killed who are known by name are set forth in Schedule B, which is attached as an appendix to this indictment.

On or about the 25th of March, 1999, forces of the FRY and Serbia attacked the villages of Mala Krusa and Velika Krusa in Orahovac municipality. The villagers of Mala Krusa took refuge in a forest outside Mala Krusa, where they were able to observe the forces of the FRY and Serbia systematically looting and burning their houses. The villagers subsequently took refuge in the house of Sedje Batusha, which is located on the outskirts of Mala Krusa. During the morning of the 26th of March, 1999, forces of the FRY and Serbia located the villagers. The police forces of the FRY and Serbia ordered the women and small children to leave the area and go to Albania. The forces of the FRY and Serbia detained and searched the men and boys and confiscated their identity documents and valuables. Subsequently, the forces of the FRY and Serbia ordered the men and boys, under threat of death, to walk to an unoccupied house in Mala Krusa. The forces of the FRY and Serbia forced the men and boys to enter the house. When the men and boys were assembled inside, the forces of the FRY and Serbia opened fire with machine-guns on the group. After several minutes of gunfire, forces of the FRY and Serbia set fire to the house in order to burn the bodies. As a result of the shootings and fire, approximately had 105 Kosovo Albanian men and boys died. Those persons ¹⁰⁰ killed who are known by name are set forth in Schedule C, which is attached as an appendix to this indictment.

On or about the 26th of March, 1999, in the morning hours, forces of the FRY and Serbia surrounded the vicinity of the Berisha family compound in the town of Suva Reka. Tanks were positioned close to and pointing in the direction of the houses. The forces of the FRY and Serbia order the occupants out of one of the houses. Men were separated from women and children and six members of the family were killed. The remaining family members were herded towards a coffee shop by forces of the FRY and Serbia. Those family members were herded along with three extended Berisha family groups into the coffee shop. Forces of the FRY and Serbia then walked into the coffee shop and opened fire on the persons inside. Explosives were also thrown into the shop. At least 44 civilians were killed and others seriously wounded during this action. The bodies of the victims were dragged out of the shop and placed in the rear of a truck which was then driven in the direction of Prizren. Three injured persons thrown in among the other bodies jumped out of the truck en route to Prizren. Property pertaining to at least six of the persons killed in the coffee shop were found in a clandestine mass grave site at a VJ firing range near Korusa. In addition, identification documents pertaining to at least five of the persons killed in the coffee shop were founded on bodies exhumed near a clandestine mass grave located in Batajnica near Belgrade in Serbia. Those persons killed who are known by name are set forth in Schedule K, which is attached as an appendix to this indictment. On or about the evening of the 26th of March 1999, in the town of ¹⁰¹ Djakovica, forces of the FRY and Serbia came to a house at 134a Ymer Grezda Street. The women and children inside the house were separated from the men and were ordered to go upstairs. The forces of the FRY and Serbia then shot and killed the six Kosovo Albanian men who were in the house. The names of those killed are set forth in Schedule D, which is attached as an appendix to this indictment.

On or about the 26th of March, 1999, in the morning hours, forces of the FRY and Serbia attacked the village of Padaliste, Istok municipality. As the forces of the FRY and Serbia entered the village, they fired on houses and on villagers who attempted to flee. Eight persons of the Beke Imeraj family were forced from their home and were killed in front of their house. Other residents of Padaliste village were killed at their homes and in a streambed near the village. Altogether, forces of the FRY and Serbia killed approximately 20 Kosovo Albanians from Padaliste. Those persons killed who are known by name are set forth in Schedule E, which is attached as an appendix to this indictment. On or about the 27th of March, 1999, forces of the FRY and Serbia attacked the village of Izbica with heavy weapons. At least 4,500 villagers from Izbica and surrounding villages took refuge in a meadow in Izbica. On the 28th of March, 1999, forces of the FRY and Serbia surrounded the villagers and approached them, demanding money. After the forces of the FRY and Serbia stole the villagers' valuables, the men were separated from the women and small children. The men were then further divided into two groups, one of which was sent to a nearby hill and the other was sent to a nearby streambed. The forces of the FRY and Serbia ¹⁰² then fired upon both groups of men, and at least 116 Kosovo Albanian men were killed on that occasion. Also on the 28th of March, 1999, the women and children gathered at Izbica were forced to leave the area and to walk towards Albania. Two elderly disabled women were sitting on a tractor-trailer, unable to walk. Forces of the FRY and Serbia set the tractor-trailer on fire, and the two women were burned alive. Those persons killed in Izbica who are known by name are set forth in Schedule F, which is attached as an appendix to this indictment. On or about the late evening of the 1st of April, 1999, and in the early morning hours of the 2nd of April, 1999, forces of the FRY and Serbia launched an operation against the Qerim district of Djakovica. Over a period of several hours, the FRY and Serbia forcibly entered houses of Kosovo Albanians in the Qerim district, killing the occupants and then setting fire to the buildings. Dozens of homes were destroyed and over 50 persons were killed. For example, in a house located at 157 Milos Gilic Street, forces of the FRY and Serbia shot the 20 occupants and then set fire to the house. As a result of the shootings and the fire set by the forces of the FRY and Serbia at this single location, 20 Kosovo Albanians were killed, of whom 19 were women and children. The names of those killed at this location are set forth in Schedule G, which is attached as an appendix to this indictment.

On or about the early morning hours of the 27th of April, 1999, forces of the FRY and Serbia launched a massive attack against the Kosovo Albanian population of the Carragojs, Erenik and Trava Valleys of the Djakovica municipality in order to drive the population out of the area. ¹⁰³ A large number of forces were deployed and several checkpoints were established. Throughout the entire day, villagers, under direct threat from the forces of the FRY and Serbia, left their homes and joined several convoys of refugees using tractors, horse carts and cars. In Meja, Korenica, and Meja Orize, a large, and as yet undetermined, number of Kosovo Albanian civilian males were separated from the mass of fleeing villagers and abducted. Many of these men were summarily executed, and approximately 300 persons are still missing. Identity documents pertaining to at least seven persons who were last seen at Meja on the 27th of April, 1999 were found on bodies exhumed from a clandestine mass grave located in Batajnica, near Belgrade, Serbia. Those persons killed who are known by name are set forth in Schedule 1, which is attached as an appendix to this indictment.

On or about the 2nd of May, 1999, forces of the FRY and Serbia attacked several villages north-east of the town of Vucitrn, including Skrovna, Slakovce, Ceceli, and Gornja Sudimlja. The villagers were forced out from their homes, and many of their houses, shops, and religious sites were completely burnt. They were subsequently forced into a convoy of approximately 20,000 people, travelling on the Studime Gorge road, in the direction of the town of Vucitrn. In the course of these actions, forces of the FRY and Serbia harassed, beat, and killed approximately 104 Kosovo Albanians. Those persons killed who are known by name are set forth in Schedule H, which is attached as an appendix to this indictment. On or about the 22nd of May, 1999, in the early morning hours, a uniformed person in the Dubrava Prison complex of the Istok municipality ¹⁰⁴ announced from a watchtower that all prisoners were to gather their personal belongings and line up on the sports field at the prison complex for transfer to the prison in Nis, Serbia. Within a very short time, hundreds of prisoners had gathered at the sports field with bags of personal belongings and lined up in rows to await transport. Without warning, uniformed persons opened fire on the prisoners from the watchtower, from holes in the perimeter wall and from gun emplacements beyond the wall. Many prisoners were killed outright and others wounded. On or about the 23rd of May, 1999, in the afternoon, forces of the FRY and Serbia threw grenades and shot into the drains, sewers, buildings and basements, killing and wounding many additional prisoners who had sought refuge in those locations after the events of the previous day. Altogether, approximately 50 prisoners were killed. Many of the murdered persons remain unidentified; however, the names of those persons who are known to have been killed are set forth in Schedule J, which is attached as an appendix to this indictment.

During the period between March 1999 and May 1999, forces of the FRY and Serbia launched a series of massive offensives against several villages in the municipality of Kacanik, which resulted in the murder of over 100 civilians.

On or about the 24th of March, 1999, the village of Kotlina was attacked by the forces of the FRY and Serbia. In the course of the attack, most of the houses were burnt down and at least 17 persons were killed. Some of those killed were captured in the woods, executed, and then thrown into wells. Explosives were thrown on top of the wells. ^{105 BLANK PAGE 106} On or about the 13th of April, 1999, forces of the FRY and Serbia surrounded the village of Slatina and the hamlet of Vata. After shelling the village, infantry troops and police entered the village and looted and burnt the houses. During this action, 13 civilians were shot and killed. On or about the 21st of May, 1999, the village of Stagovo was surrounded by forces of the FRY and Serbia. The population tried to escape toward the mountains east of the village. During this action, at least 12 persons were killed. Most of the village was looted and burnt down.

On or about the 25th of May, 1999, forces of FRY and Serbia surrounded the village of Dubrava. As the forces entered the village, the population was ordered to gather at the school and leave the village on tractors. Men were then separated from women and children. During this action, four men were killed. In addition, four members of the Qorri family were killed while trying to escape towards the woods. Those persons killed in the municipality of Kacanik who are known by name are set forth in Schedule L, which is attached as an appendix to this indictment.

By these acts and omissions, Slobodan Milosevic, and others known and unknown, planned, instigated, ordered, committed or otherwise aided and abetted the planning, preparation, and execution of the following acts:

Count 3: Murder, a crime against humanity, punishable under Article 5(a) of the Statute of the Tribunal.

Count 4: Murder, a violation of the laws or customs of war, ¹⁰⁷ punishable under Article 3 of the Statute of the Tribunal, and recognised by Article 3(1)(a) (murder) of the Geneva Conventions. Count 5. Persecutions.

The Prosecutor re-alleges from paragraphs 55 to 66 and incorporates them into this count.

Beginning on or about the 1st of January, 1999, and continuing until the 20th of June, 1999, the forces of the FRY and Serbia, acting at the direction, with the encouragement, or with the support of Slobodan Milosevic, and others known and unknown, utilised the means and methods set forth in paragraphs 55 to 66 to execute a campaign of persecution against the Kosovo Albanian civilian population based on political, racial, or religious grounds. These persecutions included, but were not limited to, the following means:

The forcible transfer and deportation by forces of the FRY and Serbia of approximately 800,000 Kosovo Albanian civilians as described in paragraphs 55 to 64.

The murder of hundreds of Kosovo Albanian civilians by forces of the FRY and Serbia as described in paragraphs 65 to 66. The sexual assault by forces of the FRY and Serbia of Kosovo Albanians, in particular women, including the sexual assaults described in paragraphs 57 and 63.

The wanton destruction or damage of Kosovo Albanian religious sites. During and after the attacks on the towns and villages, forces of FRY and Serbia systematically damaged and destroyed cultural monuments and Muslim sacred sites. Mosques were shelled, burned and dynamited ¹⁰⁸ throughout the province. Included among the incidents are the following: the damage and/or destruction of mosques in Vucitrn, Suva Reka, Celina, Rogovo, Bela Crkva, Cirez, Kotlina, Ivaja, Brestovac, Velika Krusa, Kosovska Mitrovica, Vlastica, Landovice and Djakovica, as described in paragraph 63.

By these acts and omissions, Slobodan Milosevic, and others known and unknown, planned, instigated, ordered, committed or otherwise aided and abetted the planning, preparation, and execution of the following act:

Count 5: Persecutions on political, racial and religious grounds, a crime against humanity, punishable under Article 5(h) of the Statute of the Tribunal.

General Allegations. At all times relevant to this indictment, a state of armed conflict existed in Kosovo in the FRY. All acts and omissions charged as crimes against humanity were part of a widespread or systematic attack directed against the Kosovo Albanian civilian population of Kosovo in the FRY.

Additional Facts --

JUDGE MAY: It's now 1.00, and that would be a convenient time to adjourn. We will adjourn now for an hour and a half. Half past two.

--- Luncheon recess taken at 1.00 p.m. ¹⁰⁹

--- On resuming at 2.32 a.m.

JUDGE MAY: Let the reading resume.

THE REGISTRAR: [Interpretation] Additional Facts. The Autonomous Province of Kosovo and Metohija is located in the southern part of the Republic of Serbia, a constituent republic of the FRY. The territory now comprising the FRY was part of the SFRY. The Autonomous Province of Kosovo and Metohija is bordered on the north and northwest by Montenegro, another constituent republic of the FRY. On the southwest, the Autonomous Province of Kosovo and Metohija is bordered by the Republic of Albania, and to the south, by Macedonia. The capital of the Autonomous Province of Kosovo and Metohija is Pristina. In 1990, the Socialist Republic of Serbia promulgated a new Constitution which, among other things, changed the names of the republic and the autonomous provinces. The name of the Socialist Republic of Serbia was changed to the Republic of Serbia, the name of the Socialist Autonomous Province of Kosovo was changed to the Autonomous Province of Kosovo and Metohija, and the name of the Socialist Autonomous Province of Vojvodina was changed to the Autonomous Province of Vojvodina. During this same period, the Socialist Republic of Montenegro changed its name to the Republic of Montenegro.

In 1974, a new SFRY Constitution had provided for a devolution of power from the central government to the six constituent republics of the country. Within Serbia, Kosovo and Vojvodina were given considerable autonomy including control of their educational systems, judiciary, and police. They were also given their own provincial assemblies, and were ¹¹⁰ represented in the Assembly, the Constitutional Court, and the Presidency of the SFRY.

In the 1981 census, the last census with near universal participation, the total population of Kosovo was approximately 1,585,000 of which 1,227,000, or rather 77 per cent, were Albanians, and 210,000, or 13 per cent, were Serbs. Only estimates for the population of Kosovo in 1991 are available because Kosovo Albanians boycotted the census administered that year. General estimates are that the population of Kosovo during the time period relevant to this indictment was between 1,800,000 and 2,100,000, of which approximately 85 to 90 per cent were Kosovo Albanians and 5 to 10 per cent were Serbs. During the 1980s, Serbs voiced concern about discrimination against them by the Kosovo Albanian-led provincial government while Kosovo Albanians voiced concern about economic underdevelopment and called for greater political liberalisation and republican status for Kosovo. From 1981 onwards, Kosovo Albanians staged demonstrations, which were suppressed by the SFRY military and police forces of Serbia. In April 1987, Slobodan Milosevic, who had been elected Chairman of the Presidium of the Central Committee of the League of Communists of Serbia in 1986, travelled to Kosovo. In meetings with local Serb leaders and in a speech before a crowd of Serbs, Slobodan Milosevic endorsed a Serbian nationalist agenda. In so doing, he broke with the party and government policy which had restricted nationalist expression in the SFRY since the time of its founding by Josip Broz Tito after the Second World War. Thereafter, Slobodan Milosevic exploited a growing wave of Serbian ¹¹¹ nationalism in order to strengthen centralised rule in the SFRY. In September 1987, Slobodan Milosevic and his supporters gained control of the Central Committee of the League of Communists of Serbia. In 1988, Slobodan Milosevic was re-elected as Chairman of the Presidium of the Central Committee of the League of Communists of Serbia. From that influential position, Slobodan Milosevic was able to further develop his political power.

From July 1988 to March, 1989, a series of demonstrations and rallies supportive of Slobodan Milosevic's policies - the so-called "Anti-Bureaucratic Revolution" - took place in Vojvodina and Montenegro. These protests led to the ouster of the respective provincial and republican governments; the new governments were then supportive of and indebted to Slobodan Milosevic.

Simultaneously, within Serbia, calls for bringing Kosovo under stronger Serbian rule intensified and numerous demonstrations addressing this issue were held. On the 17th of November, 1988, high-ranking Kosovo Albanian political figures were dismissed from their positions within the provincial leadership and were replaced by appointees loyal to Slobodan Milosevic. In early 1989, the Serbian Assembly proposed amendments to the Constitution of Serbia which would strip Kosovo of most of its autonomous powers, including control of the police, education and economic policy, and choice of official language, as well as its veto powers over further changes to the Constitution of Serbia. Kosovo Albanians demonstrated in large numbers against the proposed changes. Beginning in February 1989, a strike by Kosovo Albanian miners further increased tensions. ¹¹² Due to the political unrest, on March the 3rd, 1989, the SFRY Presidency declared that the situation in the province had deteriorated and had become a threat to the constitution, integrity, and sovereignty of the country. The government then imposed "special measures" which assigned responsibility for public security to the federal government instead of the Government of Serbia.

On 23rd of March, 1989, the Assembly the Kosovo met in Pristina, voted to accept the proposed amendments to the Constitution, and with the majority of Kosovo Albanian delegates abstaining. Although lacking the required two-thirds majority in the Assembly, the President of the Assembly nonetheless declared that the amendments had passed. On the 28th of March, 1989, the Assembly of Serbia voted to approve the constitutional changes, effectively revoking the autonomy granted in the 1974 constitution.

At the same time these changes were occurring in Kosovo, Slobodan Milosevic further increased his political power when he became the President of Serbia. Slobodan Milosevic was elected President of the Presidency of Serbia on the 8th of May, 1989, and his post was formally confirmed on the 6th of December, 1989.

In early 1990, Kosovo Albanians held mass demonstrations calling for an end to the "special measures." In April 1990, the SFRY Presidency lifted the "special measures" and removed most of the federal police forces as Serbia took over responsibility for police enforcement in Kosovo.

In July 1990, the Assembly of Serbia passed a decision to suspend ¹¹³ the Assembly of Kosovo shortly 114 of the 123 Kosovo Albanian delegates from that Assembly had passed an unofficial resolution declaring Kosovo an equal and independent entity within the SFRY. In September 1990, many of these same Kosovo Albanian delegates proclaimed a constitution for a republic of Kosovo. One year later, in September 1991, Kosovo Albanians held an unofficial referendum in which they voted overwhelmingly for independence. On the 24th of May, 1992, Kosovo Albanians held unofficial elections for an assembly and President for the republic of Kosovo. On the 16th of July, 1990, the League of Communists of Serbia and the Socialist Alliance of Working People of Serbia joined to form the Socialist Party of Serbia, the SPS, and Slobodan Milosevic was elected its President. As the successor to the League of Communists, the SPS became the dominant political party in Serbia, and Slobodan Milosevic, as President of the SPS, was able to wield considerable power and influence over many branches of the government as well as the private sector. Milan Milutinovic and Nikola Sainovic have both held prominent positions within the SPS. Nikola Sainovic was a member of the Main Committee and Executive Council as well as vice-chairman; and Milan Milutinovic successfully ran for President of Serbia in 1997 as the SPS candidate. After the adoption of the new constitution of Serbia on the 28th of September 1990, Slobodan Milosevic was elected President of Serbia in multi-party elections held on the 9th and 26th of December, 1990. He was re-elected on the 20th of December, 1992. In December 1991, Nikola Sainovic was appointed a Deputy Prime Minister of Serbia. After Kosovo's autonomy was effectively revoked in 1989, the ¹¹⁴ political situation in Kosovo became more and more divisive. Throughout late 1990 and 1991, thousands of Kosovo Albanian doctors, teachers, professors, workers, police, and civil servants were dismissed from their positions. The local court in Kosovo was abolished and many judges removed. Police violence against Kosovo Albanians increased. During this period, the unofficial Kosovo Albanian leadership pursued a policy of non-violent civil resistance and began establishing a system of unofficial, parallel institutions in the health care and education sectors.

In late June 1991, the SFRY began to disintegrate in a succession of wars fought in the Republic of Slovenia, the Republic of Croatia, and Bosnia and Herzegovina. On the 25th of June, 1991, Slovenia declared its independence from the SFRY, which led to the outbreak of war. A peace agreement was reached on the 8th of July, 1991. Croatia declared its independence on the 25th of June, 1991, leading to fighting between Croatian military forces on the one side, and the JNA, paramilitary units, and the Army of the Republic of Srpska Krajina on the other. On the 6th of March, 1992, Bosnia and Herzegovina declared its independence, resulting in wide-scale war after the 6th of April, 1992. On the 27th of April, 1992, the SFRY was reconstituted as the FRY. At this time, the JNA was reorganised as the VJ. In the war in Bosnia and Herzegovina, the JNA, and later the VJ, fought along with the Army of Republika Srpska against military forces of the Government of Bosnia and Herzegovina and the Croats Defence Council. Active hostilities ceased with the signing of the Dayton peace agreement in December 1995. ^{115 BLANK PAGE 116} Although Slobodan Milosevic was the President of Serbia during the wars in Slovenia, Croatia, and Bosnia and Herzegovina, he was nonetheless the dominant Serbian political figure exercising de facto control of the federal government as well as the republican government and was the person with whom the International Community negotiated a variety of peace plans and agreements related to these wars.

While the wars were being conducted in Slovenia, Croatia, and Bosnia and Herzegovina, the situation in Kosovo, while tense, did not erupt into the violence and intense fighting seen in the other countries. In the mid-1990s, however, a faction of the Kosovo Albanians organised a group known as Ushtria Clirimatre e Kosoves, the UCK, or known in English as the Kosovo Liberation Army. This group advocated a campaign of armed insurgency and violent resistance to the Serbian authorities. In mid-1996, the KLA began launching attacks primarily targeting police -- Serbian police forces. Thereafter and throughout 1997, Serbian police forces responded with forceful operations against suspected KLA bases and supporters in Kosovo.

After concluding his term as President of Serbia, Slobodan Milosevic was elected President of the FRY on the 15th of July, 1997, and assumed office on the 23rd of July, 1997. Thereafter, elections for the office of the President of Serbia were held; Milan Milutinovic ran as the SPS candidate and was elected President of Serbia on the 21st of December, 1997. In 1996, 1997, and 1998, Nikola Sainovic was re-appointed Deputy Prime Minister of the FRY. In part through his close alliance with Milan Milutinovic, Slobodan Milosevic was able to retain his influence over the ¹¹⁷ Government of Serbia.

Beginning in late February 1998, the conflict intensified between the KLA, on the one hand, and the forces of the FRY and Serbia, on the other. A number of Kosovo Albanians and Kosovo Serbs were killed and wounded during this time. Forces of the FRY and Serbia engaged in a campaign of shelling predominantly Kosovo Albanian towns and villages, widespread destruction of property, and expulsions of the civilian population from areas in which the KLA was active. Many residents fled the territory as a result of the fighting and destruction or were forced to move to other areas within Kosovo. The United Nations estimates that by mid-October 1998, over 298.000 persons, roughly 15 per cent of the population, had been internally displaced within Kosovo or had left the province.

In response to the intensifying conflict, the United Nations Security Council, or the UNSC, passed Resolution 1160 in March 1998 "condemning the use of excessive force by Serbian police forces against civilians and peaceful demonstrators in Kosovo," and imposed an arms embargo on the import of weapons into the FRY. Six months later the UNSC passed Resolution 1199, dating to 1998, which stated that "the deterioration of the situation in Kosovo, Federal Republic of Yugoslavia, constitutes a threat to peace and security in the region." The Security Council demanded that all parties cease hostilities and that the security forces used for civilian repression be withdrawn. In an attempt to diffuse tensions in Kosovo, negotiations between Slobodan Milosevic and representatives of NATO and the OSCE were conducted ¹¹⁸ in October 1998. An agreement on the OSCE Kosovo Verification Mission was signed on the 16th of October, 1998. This agreement and the "Clark-Naumann agreement," which was signed by Nikola Sainovic, provided for the partial withdrawal of forces of the FRY and Serbia from Kosovo, a limitation on the introduction of additional forces and equipment into the area, and the deployment of unarmed OSCE verifiers. Although scores of OSCE verifiers were deployed throughout Kosovo, hostilities continued. During this period, international verifiers and human rights organisations documented a number of killings of Kosovo Albanians. In one such incident, on 15 January 1999, 45 unarmed Kosovo Albanians were murdered in the village of Racak in the municipality of Stimlje.

In a further response to the continuing conflict in Kosovo, an international peace conference was organised in Rambouillet, France beginning on the 7th of February, 1999. Nikola Sainovic, the Deputy Prime Minister of the FRY, was a member of the Serbian delegation at the peace talks and Milan Milutinovic, President of Serbia, was also present during the negotiations. The Kosovo Albanians were represented by the KLA and a delegation of Kosovo Albanian political and civic leaders. Despite intensive negotiations over several weeks, the peace talks collapsed in mid-March 1999.

During the peace negotiations in France, the violence in Kosovo continued. In late February and early March, forces of the FRY and Serbia launched a series of offensives against dozens of predominantly Kosovo Albanian villages and towns. The FRY military forces were comprised of ¹¹⁹ elements of the VJ's 3rd Army, specifically the 52nd Corps, also known as the Pristina Corps, and several brigades and regiments under the command of the Pristina Corps. At all times relevant to this indictment, the Chief of the General Staff of the VJ, with command responsibilities over the 3rd Army and ultimately over the 52nd Corps, was Colonel General Dragoljub Ojdanic. At all times relevant to this indictment, the Supreme Commander of the VJ was Slobodan Milosevic.

The police forces taking part in the actions in Kosovo were members of the MUP. At all times relevant to this indictment, all police forces employed by or working under the authority of the MUP were commanded by Vlajko Stojiljkovic, Minister of Internal Affairs of Serbia. Under the FRY Law on Defence, those police forces engaged in military operations during a state of war or imminent threat of war are subordinated to the command of the VJ, whose commanders, at all times relevant to this indictment, were Colonel General Dragoljub Ojdanic and Slobodan Milosevic.

During their offensives, forces of the FRY and Serbia acting in concert engaged in a well-planned and coordinated campaign of destruction of property owned by Kosovo Albanian civilians. Towns and villages were shelled, homes, farms, and businesses were burned, and personal property destroyed. As a result of these orchestrated actions, towns, villages, and entire regions were made uninhabitable for Kosovo Albanians. Additionally, forces of the FRY and Serbia harassed, humiliated, and degraded Kosovo Albanian civilians through physical and verbal abuse. The Kosovo Albanians were also persistently subjected to insults, racial ¹²⁰ slurs, degrading acts based on ethnicity and religion, beatings, and other forms of physical mistreatment.

The unlawful deportation and forcible transfer of thousands of Kosovo Albanians from their homes in Kosovo involved well-planned and coordinated efforts by the leaders of the FRY and Serbia, and forces of the FRY and Serbia, all acting in concert. Actions similar in nature took place during the wars in Croatia and Bosnia and Herzegovina between 1991 and 1995. During those wars, Serbian military, paramilitary, and police forces forcibly expelled and deported non-Serbs in Croatia and Bosnia and Herzegovina from areas under Serbian control, utilising the same method of operations as were used in Kosovo in 1999: heavy shelling and armed attacks on villages; widespread killings; destruction of non-Serbian residential areas and cultural and religious sites; and forced transfer and deportation of non-Serbian populations.

On the 24th of March, 1999, NATO began launching air strikes against targets in the FRY. The FRY issued decrees of an imminent threat of war on the 23rd of March, 1999 and a state of war on the 24th of March, 1999. After the air strikes commenced, forces of the FRY and Serbia intensified their widespread or systematic campaign and forcibly expelled hundreds of thousands of Kosovo Albanians from Kosovo. In addition to the forced expulsions of Kosovo Albanians, forces of the FRY and Serbia also engaged in a number of killings of Kosovo Albanians since the 24th of March, 1999. Such killings occurred at numerous locations, including, but not limited to, Bela Crkva, Mala Krusa, Velika Krusa, Djakovica, Padaliste, Izbica, Vucitrn, Meja, the Dubrava ¹²¹ prison, Suva Reka, and Kacanik.

By June 1999, more than 800,000 Kosovo Albanians, about one-third of the entire Kosovo Albanian population, had been expelled from Kosovo. Thousands more were believed to be internally displaced. An unknown number of Kosovo Albanians were killed in the operations conducted by forces of the FRY and Serbia.

On the 3rd of June, 1999, the FRY and Serbia accepted a document of principles towards a resolution of the crisis in Kosovo, which was presented to their representatives by Martti Ahtisaari, representing the European Union, and Viktor Chernomyrdin, Special Representative of the President of the Russian Federation. That document, which was followed by Security Council Resolution 1244 from 1999, provided for a political solution to the Kosovo crisis, including an immediate end to the violence and a rapid withdrawal of FRY and Serbian military, police, and paramilitary forces, and the deployment of international civil and security presence in Kosovo, under United Nations auspices. On the 9th of June, 1999, the Military Technical Agreement was signed between NATO, represented by General Sir Michael Jackson, and representatives of the VJ and the MUP, providing for the withdrawal of all forces of the FRY and Serbia from Kosovo. Under the terms of the Military Technical Agreement, the NATO bombing campaign against targets in the FRY would terminate upon the complete withdrawal of forces of the FRY and Serbia. On the 20th of June, 1999, KFOR, the Kosovo Force, announced that the withdrawal of forces of the FRY and Serbia from the territory of Kosovo was complete. ¹²²

JUDGE MAY: Yes, that completes the reading. Thank you. It remains on this indictment for the new Count 2 to be put to the accused for him to enter a plea.

Slobodan Milosevic, the new Count 2 charges, in relation to the Kosovo Albanians who were internally displaced, you with other inhumane acts, forcible transfer, punishable under Article 5(i) of the Statute of the Tribunal. To that count, how do you plead, guilty or not guilty?

THE ACCUSED: [Interpretation] I wish to say to you that the very text that we have just heard in itself shows that the indictment is false, and also that the evidence looked for by Mr. Robinson in connection with the impartiality of that indictment and the Prosecution for two reasons. First of all --

JUDGE MAY: Mr. Milosevic --

THE ACCUSED: [Interpretation] -- the parties to the conflict are being changed --

JUDGE MAY: -- we are not here to hear argument at the moment. The only matter is for you to enter a plea of guilty or not guilty. In the event -- in the event -- don't interrupt. In the event of your not entering a plea, the Trial Chamber has a power to enter a plea of not guilty. That we will do. You will have an opportunity, as you know quite well, Mr. Milosevic, to address us at other times. Enter a plea of not guilty to that count.

THE ACCUSED: [No interpretation]

JUDGE MAY: We shall move on to the next part of the hearing. Mr. Milosevic, you've had your -- you will have your opportunity, as I've ¹²³ said, to address us. Now is not the time. The only matter for you to do is to enter a plea. Now that has been dealt with. We will move on to the next part of the hearing which concerns the reading of the Croatian indictment.

Mr. Milosevic, will you be quiet, please. We will go on to the next matter which is the hearing of the Croatian indictment and the Initial Appearance on that. Yes, Mr. Wladimiroff.

MR. WLADIMIROFF: May it please the Court. May I assume that the Court takes the absence of a plea as a plea of not guilty?

JUDGE MAY: Yes. If I didn't say so, I make it plain that it's a plea of not guilty.

--- Whereupon the Motion Hearing adjourned at 3.03 p.m. to be followed by the Initial

Appearance