INDICTED continued part 13
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1. Paragraph 63 cites that Milutinovic, as President of Serbia, “represents Serbia and conducts its relations with foreign states and international organisations. He organises preparations for the defence of Serbia.”

The 1990 Constitution of Serbia (Article 93, Paragraphs 4 and 5) does give the Serbian President the powers that the Indictment mentioned. However, this article would be valid only if Serbia were to become a separate sovereign state – a situation regulated by Article 135 of the same Constitution. Since Serbia is still within the FRY, these powers are vested in the Federal government, under the FRY Constitution.

2. In two paragraphs (67 and 69) the Indictment refers to “de facto authority”, always unconstitutional and greater than de iure authority. This is especially clear in paragraph 67: “In addition to his de iure powers, Milan MILUTINOVIC exercises extensive de facto influence or control over numerous institutions essential to, or involved in, the conduct of the crimes alleged herein and has “influence or control over functions and institutions nominally under the competence of the Government and Assembly of Serbia and its autonomous provinces, including but not limited to the Serbian police force.

In addition to what we already said on the topic of the de jure and de facto authority, (see responses to paragraphs 55-60), we wish to add that: a) neither the previous, nor these paragraphs of the Indictment cite any evidence that would point to how this “de facto authority” was used, or when and on what topic did Milosevic, Milutinovic, or anyone else make any decisions outside the Constitution. Therefore, the Indictment’s mention of "de facto" authority is but empty talk, and certainly not proof of anyone’s guilt; b) it is self-contradictory, and therefore unsustainable, to claim that two statesmen – Milosevic and Milutinovic – had or could have unlimited “de facto” authority at the same time, in the same state.

3. Paragraph 69 says that Milan Milutinovic, as a member of the Supreme Defense Council, “pursuant to his de facto authority… is responsible for the actions of any of his subordinates within the VJ and within any police forces who have committed the crimes alleged...”

In any of the functions Milan Milutinovic served, he never had under his command one single soldier. Responses to other parts of the Indictment have already proven that the VJ committed no crimes in Kosovo-Metohija. Even if Milan Milutinovic had had any authority over the VJ, there would have been nothing for him to be responsible for.

The Serbian police is under the jurisdiction of the Serbian Interior Ministry. According to the Constitution and governing laws of this republic, the Ministry is responsible to the Government and the Parliament of Serbia. The Constitution of Serbia (Article 83) does not give the President any authority over the Ministry of Interior and its units or bodies. Neither the Indictment, nor the documents of the Serbian government contain anything that could incriminate President Milutinovic for any decision on using the Serbian MUP forces in counter-terrorist operations in Kosovo-Metohija, or for defense from NATO aggression in 1998-99.

4. Paragraph 68 cites activities of Milan Milutinovic while he was FRY foreign minister. Since this position by itself is not incriminating in any way, further comment is unnecessary. What Milutinovic did is done by all other foreign ministers in the world. Milutinovic was present in Rambouillet as the Serbian President, but he was not officially a member of the FRY delegation. As the Serbian president he, naturally, had an interest in closely monitoring the outcome of these negotiations, however staged they were.

Paragraph 70 of the Indictment says: “Colonel General Dragoljub OJDANIC was appointed Chief of the General Staff of the VJ on 26 November 1998. He remains in that position as of the date of this indictment. As Chief of the General Staff of the VJ, Colonel General Dragoljub OJDANIC commands, orders, instructs, regulates and otherwise directs the VJ, pursuant to acts issued by the President of the FRY and as required to command the VJ.”

Paragraph 71 of the Indictment says: “As Chief of the General Staff of the VJ, Colonel General Dragoljub OJDANIC determines the organisation, plan of development and formation of commands, units and institutions of the VJ, in conformity with the nature and needs of the VJ and pursuant to acts rendered by the President of the FRY.”

Paragraph 72 of the Indictment says: “In his position of authority, Colonel General Dragoljub OJDANIC also determines the plan for recruiting and filling vacancies within the VJ and the distribution of recruits therein; issues regulations concerning training of the VJ; determines the educational plan and advanced training of professional and reserve military officers; and performs other tasks stipulated by law.”

Paragraph 73 of the Indictment says: “As Chief of the General Staff of the VJ, Colonel General Dragoljub OJDANIC—or other officers empowered by him—assigns commissioned officers, non-commissioned officers and soldiers, and promotes non-commissioned officers, reserve officers, and officers up to the rank of colonel. In addition, Colonel General Dragoljub OJDANIC nominates the president, judges, prosecutors, and their respective deputies and secretaries, to serve on military disciplinary courts.”

Paragraph 74 of the Indictment says: “Colonel General Dragoljub OJDANIC carries out preparations for the conscription of citizens and mobilisation of the VJ; co-operates with the Ministries of Internal Affairs of the FRY and Serbia and the Ministry of Defence of the FRY in mobilising organs and units of Ministries of Internal Affairs; monitors and, proposes measures to correct problems encountered during, and informs the Government of the FRY and the Supreme Defence Council about the implementation of the aforementioned mobilisation.

Paragraph 75 of the Indictment says: “As the Chief of the General Staff of the VJ, Colonel General Dragoljub OJDANIC is responsible for the actions of his subordinates within the VJ and for the actions of any federal and republican police forces, which are subordinated to the VJ, who have committed crimes since January 1999 within the province of Kosovo.”

COMMENT: In addition to everything we said about Colonel-General Dragoljub Ojdanic in the responses to paragraphs 31, 51 and 52, we will only add that everything in paragraphs 70-75 fits the duties of the Chief of the General Staff, as set out in the laws regulating the Yugoslav Army and national defense, as well as the VJ standing operating procedures. Given that, it is surprising that these paragraphs were included in the Indictment. This is even more puzzling since it is known that Chiefs of Staff in any world army, the VJ included, have no command authority and therefore, no command responsibility. The claim in paragraph 75 that Colonel-General Dragoljub Ojdanic “as the Chief of the General Staff of the VJ… responsible for the actions of his subordinates within the VJ and for the actions of any federal and republican police forces, which are subordinated to the VJ...” is therefore unsustainable.

Paragraph 76 of the Indictment says: “Vlajko STOJILJKOVIC was named Minister of Internal Affairs of Serbia on 24 March 1998. As head of a Serbian government ministry, Vlajko STOJILJKOVIC is responsible for the enforcement of laws, regulations and general acts promulgated by Serbia’s Assembly, Government or President.”

Paragraph 77 of the Indictment says: “As Minister of Internal Affairs of Serbia, Vlajko STOJILJKOVIC directs the work of the Ministry of Internal Affairs and its personnel. He determines the structure, mandate and scope of operations of organisational units within the Ministry of Internal Affairs. He is empowered to call up members of the Ministry of Internal Affairs reserve corps to perform duties during peace time, and to prevent activities threatening Serbia’s security. The orders which he and Ministry of Internal Affairs superior officers issue to Ministry of Internal Affairs personnel are binding unless they constitute a criminal act.”

Paragraph 78 of the Indictment says: “As Minister of Internal Affairs of Serbia, Vlajko STOJILJKOVIC has powers of review over decisions and acts of agents for the Ministry. He considers appeals against decisions made in the first instance by the head of an organisational unit of the Ministry of Internal Affairs. Moreover, he is empowered to decide appeals made by individuals who have been detained by the police.”

Paragraph 79 of the Indictment says: On 8 April 1999, as Minister of Internal Affairs of Serbia, Vlajko STOJILJKOVIC’s powers during the state of war were expanded to include transferring Ministry employees to different duties within the Ministry for as long as required.

Paragraph 80 of the Indictment says: As Minister of Internal Affairs of Serbia, Vlajko STOJILJKOVIC is responsible for ensuring the maintenance of law and order in Serbia. As Minister of Internal Affairs, he is responsible for the actions of his subordinates within the police forces of the Ministry of Internal Affairs of Serbia who have committed crimes since January 1999 in the province of Kosovo.

COMMENT: Biographical information, takeover of duties in the Ministry of Interior, legal and other authority have been cited accurately in all five Paragraphs (76-80) of the indictment. All the authority cited is in accordance with Serbia's Internal Affairs Law and other laws regulating this department of the government.

Evidence of any crimes committed by members of the Serbian Interior Ministry in Kosovo-Metohija had not been made public by the day of the indictment.

General Allegations

Paragraph 81 of the Indictment says: “At all times relevant to this indictment, a state of armed conflict existed in Kosovo in the FRY.”

COMMENT: The ICTY Indictment specifically states its frame of reference to be January-May 22, 1999. For parts of that time period, a “state of armed conflict” did not exist in Kosovo-Metohija.

Until the last week of February 1999, the VJ had been in the barracks (garrisons), where it retreated according to the Milosevic-Holbrooke agreement supervised by the OSCE Verification Mission. MUP forces were withdrawn to their peacetime stations. With that in mind, the first month and twenty days of 1999 there was no “state of armed conflict” in Kosovo. There was, however, a state of unhindered regeneration of the “KLA” and its increased terrorist activities. Detailed information about those activities was cited in responses to previous paragraphs of the Indictment.

OSCE’s KVM, led by William Walker, contributed the most to the regeneration and rearmament and recruitment of the “KLA” forces in Kosovo-Metohija, helping them reach a strength of over 25,000 men after the defeats they suffered in the latter half of 1998. All this took place between November 1998 and February 1999.

After Walker’s fabrication of the “Racak incident” and the refusal of Serbia and Yugoslavia to accept the U.S. ultimatum in the Rambouillet and Paris negotiations, it was obvious that NATO will commit aggression against the FRY. “KLA” attacks on the Army, police and civilians intensified again at this time. The situation made it imperative for the VJ and Serbian police forces to launch a counter-terrorist offensive in late February 1999, in order to defeat the terrorist forces in Kosovo-Metohija, if possible, before the NATO aggression began.

Paragraph 82 of the Indictment says: “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.”

COMMENT: This allegation is unsustainable and never proven. The leadership of Serbia, Yugoslavia and the Serbian MUP has never had the aim to attack the Albanian civilian population in Kosovo-Metohija. History shows countless irrefutable evidence to that effect. As previous refutations of the Indictment have said, Kosovo Albanians have enjoyed their greatest windfall of prosperity precisely in Serbia and Yugoslavia.

It has also been said that the Albanian terrorists - “KLA”- have murdered Albanians loyal to the legitimate provincial government.

Refutations of previous Paragraphs offer sufficient evidence that the Albanian civilian population was fully protected, both during the counter-terrorist operations against the “KLA,” and during the NATO aggression against the FRY, and especially during the Alliance’s air strikes against targets in Kosovo-Metohija.

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