1 Tuesday, 29 May 2007
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.22 p.m.
5 JUDGE ORIE: Madam Registrar, would you please call the case.
6 THE REGISTRAR: Good afternoon, Your Honours. This is case number
7 IT-04-84-T, the Prosecutor versus Ramush Haradinaj et al.
8 JUDGE ORIE: Thank you, Madam Registrar.
9 Before we give an opportunity to the OTP to re-examine the
10 witness, Mr. Emmerson --
11 MR. EMMERSON: Yes, I --
12 JUDGE ORIE: -- I did understand there was a matter you would like
13 to raise.
14 MR. EMMERSON: There is. It's, in fact, two related matters.
15 JUDGE ORIE: Yes.
16 MR. EMMERSON: One involves a correction to a position I indicated
17 on the transcript at the end of last Friday when Your Honour was asking
18 questions about the locations of interviews.
19 JUDGE ORIE: Yes.
20 MR. EMMERSON: But the first which is related concerns the
21 document which I hope that Your Honours have in front of you.
22 JUDGE ORIE: We have received a document, first page being the
23 Department of Justice, Office of the Medical Examiner, death certificate.
24 And then attached is a longer document, disaster victim identification,
25 and -- which gives -- the first document seems to give a cause of death.
1 MR. EMMERSON: Yes.
2 JUDGE ORIE: "Gun-shot wound to the pelvis", and the second
3 document, at least at the last page, bears the text: "The above-mentioned
4 person was dressed with KLA uniform."
5 MR. EMMERSON: That's the one. Just to indicate what these
6 documents are. First of all, collectively they are 65 ter number 934, and
7 I would ask that they be marked for identification. The first document,
8 as Your Honour indicates, is a summary post mortem report on Kemajl Gashi
9 by Marek Gasior, an international forensic pathologist, which is dated the
10 17th of May, 2006. Thereafter, there is a lengthy document dated the 10th
11 of August, 2005, which is, in effect, a missing persons report. And Your
12 Honours will see that the reporting person is identified as Mustafa Gashi,
13 that's on the first page, for the father's name and on the third page,
14 which is for some reason numbered page 8 at the bottom, as the reporting
15 individual, the name and telephone number of the father, Mustafa Gashi is
16 there given. And Your Honours will see that, again, on the first
17 substantive page, which is, as I say, curiously numbered 6 at the bottom.
18 JUDGE ORIE: Yes.
19 MR. EMMERSON: The place where the missing person was last seen is
20 given as Barane and the date as July 1998. And as Your Honours picked up
21 in the concluding pages, that's the page which is -- bears the number 19,
22 the circumstances of disappearance, again, are repeated: "Went missing in
23 a village of Barane." And then on page 21, in amplification of an
24 otherwise silent description of clothing and appearance, the report
25 records that the above-mentioned person was dressed with KLA uniform.
1 Family, that is, other than the individual reporter, family doesn't know
2 any details about the clothes.
3 It is our understanding that this witness was present at the time
4 when this information was provided.
5 The second point to some extent relates to the first. That was
6 the first substantive document disclosed by the Prosecution to the Defence
7 in relation to this individual and this allegation in the indictment, and
8 that notification came during May, there is the 19th of May service of DNA
9 reports and the 31st of May service of this -- these documents. And on
10 the strength of that and on the strength of the telephone number for the
11 father there provided, Defence investigators visited the father in Pec to
12 interview him about the content, and in particular the content of the last
13 page of this report. It was during that meeting with the father that this
14 witness first approached investigators for the Defence, so the first
15 contact was made in Pec in the home of the father.
16 What I need to correct is that Your Honour asked me at the end of
17 Friday's proceedings where the interview was conducted and I said it was
18 my understanding that the interview was conducted in Pec. In fact, after
19 that first meeting, there was then a further meeting which that took place
20 in Pristina with the witness attending the offices of the Defence
21 investigation, and completing and signing the witness statement that Your
22 Honour has seen. So it may be that some of the witness's answers appear
23 to have some confusion in them, but perhaps the clarification is that this
24 interchange took place in both locations, both in Pec and in Pristina. I
25 hope that clarifies the position.
1 JUDGE ORIE: Thank you, Mr. Emmerson, for that.
2 There is one other matter which I would briefly like to address,
3 that's the following: Protective measures have been sought in relation to
4 Witness 6. The Chamber would like to receive as soon as possible a
5 response to that, whether in oral form or in writing. Could you give us
6 any indication -- Mr. Guy-Smith, I see -- could you give us any indication
7 when the Chamber could expect a response?
8 MR. GUY-SMITH: I believe after consultation with my colleagues,
9 we should probably be able to do that at the.
10 JUDGE ORIE: Yes. Thank you. Then if --
11 MR. GUY-SMITH: Maybe after the next -- after the first break
13 JUDGE ORIE: Yes. You therefore intend to give the information
14 orally I take it?
15 MR. GUY-SMITH: Yes.
16 JUDGE ORIE: We would then turn into private session at that
18 Then, Mr. Re, are you ready to -- for the re-examination of the
20 Then, Madam Usher, could you please escort the witness into the
22 [Trial Chamber and registrar confer]
23 JUDGE ORIE: Mr. Emmerson, you asked the -- the 65 ter document
24 934 to be marked for identification. Are you going to put it to the
25 witness or --
1 MR. EMMERSON: No. I'm going, if I may, in due course, depending
2 on how Mr. Re deals with it, if he does, to tender it from the bar table.
3 JUDGE ORIE: From the bar table.
4 Mr. Re, would there be any problem in relation to that and is
5 there any explanation for the document -- at least the first document
6 starting on page 3 and then the second document starting on page 5 that
7 suggests that there would be a page 1 and 2 somewhere as well.
8 MR. RE: The only explanation I could hazard would be that the
9 first two pages are the cover pages from the organisation which sent it to
10 the OTP. That's the normal situation with these things. That appears to
11 be handwritten on the bottom, but I can certainly look into it.
12 [The witness entered court]
13 JUDGE ORIE: Would there be any problem as far as the Prosecution
14 is concerned on admitting this document from the bar table?
15 MR. RE: No, none.
16 JUDGE ORIE: Then, Madam Registrar, could you please assign a
17 number to 65 ter 934.
18 THE REGISTRAR: Your Honours, this will be Exhibit Number D96,
19 marked for identification.
20 JUDGE ORIE: Thank you, Madam Registrar.
21 Good afternoon, Mr. Gashi. The Chamber has decided that the
22 counsel for the Prosecution will have additional time for re-examination.
23 Mr. Gashi, it was a long weekend, but you'll certainly remember what
24 happened last Friday. Last Friday you, during examination-in-chief and
25 during cross-examination, you gave answers to questions which are -- were
1 sometimes difficult to reconcile. I just mention KLA membership of your
2 sister, when you saw your father for the last time, whether what kind of
3 work he was doing when he was in Barane. I'd like to remind you that you
4 gave at the beginning of your testimony a solemn declaration that you will
5 speak the truth, the whole truth, and nothing but the truth. That means
6 if a question is asked to you, if you don't know the answer, tell us; if
7 you do know the answer, tell us as precisely as possible what the answer
9 Mr. Re.
10 MR. GUY-SMITH: Excuse me, Your Honour.
11 JUDGE ORIE: Yes.
12 MR. GUY-SMITH: Based on the discussions that this Chamber had
13 with this witness last week and based upon what I now understand to be the
14 potential areas of examination that Mr. Re may be entering -- and this may
15 be an appropriate time for the witness to take off his headphones so that
16 he's not privy to this conversation.
17 JUDGE ORIE: Yes.
18 Could you take off your earphones for a second.
19 Yes, Mr. Guy-Smith.
20 MR. GUY-SMITH: In my last conversations, which were admittedly
21 off the record with Mr. Re at the conclusion of the proceedings, hopefully
22 Mr. Re is being attentive to what I'm about to say, there was a discussion
23 about the extent and nature of examination that Mr. Re would engage in.
24 It was my understanding Mr. Re was going to confine himself or believed it
25 would be appropriate to confine himself to the facts and circumstances
1 surrounding the taking of the Defence statement and no further than that.
2 I'm not sure whether or not he still maintains that position.
3 I, once again, raise the concerns that I raised last Friday with
4 regard to the issue of counsel being given to this gentleman or him at
5 least having the opportunity to have independent legal advice concerning
6 the potential of criminal sanctions based upon the situation which we're
7 in, independent of any inclination by any particular party. With regard
8 to this witness, since the issue has arisen as a matter of law, I believe
9 it would be appropriate for him to have independent advice of counsel so
10 that he can make a determination of how best to proceed. And I would
11 encourage -- I would encourage once again that that be afforded to this
12 gentleman. I am not, obviously, in a position to pursue that; I have a
13 different interest here. However, in order to deal with the, I think,
14 relatively sensitive nature of the legal status that this particular
15 witness has at this time I think it is something which is of great
17 JUDGE ORIE: Yes. The Chamber has considered whether or not to
18 take any initiative to provide counsel to the witness. The Chamber has
19 decided not to do so at this moment. At the same time, of course, the
20 Chamber, if it comes to any question where -- where the witness could be
21 expected to have a dilemma as to whether to incriminate himself, of course
22 the Chamber will then raise the issue with the witness if it comes to any
23 of these points. But at the moment, the Chamber will just wait and see.
24 But if you would like me to specifically draw the attention, as I did last
25 Friday, that not speaking the truth -- intentionally not speaking the
1 truth once you've given a solemn declaration, that that is an offence with
2 a maximum penalty under the Rules of Procedure and Evidence, then I'm
3 willing to do that.
4 MR. GUY-SMITH: I believe that it would probably be appropriate;
5 however -- and I understand the Chamber's position with regard to at this
6 point not offering the gentleman --
7 JUDGE ORIE: Yes.
8 MR. GUY-SMITH: -- Independent counsel --
9 JUDGE ORIE: Yes.
10 MR. GUY-SMITH: -- I do have a question because I -- quite frankly
11 I'm of somewhat two minds here. One is the mind of an individual who is
12 concerned about the protection of an individual, of a particular person's
13 rights as a witness who may potentially be a defendant in some other
14 proceedings which is really not my bailiwick here. And the other is
15 obviously representing my client. I do not wish to be in a position where
16 I continue to jump up like a jack-in-the-box with regard to my concerns
17 about his potential rights. And don't wish to either be doing that or to
18 offend the Chamber because determination made thus far with regard to how
19 we should proceed.
20 However, depending on the questions Mr. Re chooses to ask, and
21 once again, I don't know whether or not he's going to limit himself as we
22 discussed last Friday or he's going to go further then that, we could fast
23 be approaching the very area that is of concern to the Chamber as of our
24 last session and has been articulated by the Chamber with regard to the
25 potential admonition that could be given at this time. I don't know
1 whether it would be appropriate, for example, for the Chamber to consider
2 at this point in time granting the witness immunity for his prior
3 testimony or not.
4 JUDGE ORIE: Mr. Re.
5 MR. RE: In my submission, we're nowhere near that point at the
6 moment. In our submission -- in the Prosecution's submission any
7 differences in his testimony last week are reconcilable. I don't intend
8 to suggest to the witness that he's not telling the truth in any way. I
9 wish to explore certain matters with him. If it came close to the point
10 where, in our submission, the Trial Chamber had to warn the witness, I
11 would certainly stand up and proffer that advice, but in my submission
12 we're not there yet.
13 JUDGE ORIE: You see no inconsistencies irreconcilable last
15 MR. RE: Sometimes an impression is given that someone is saying
16 something which is irreconcilable. I'll just remind you that
17 Mr. Emmerson's question at transcript 4880, he asked the witness if
18 everything he'd said was true and then read to the -- in relation to the
19 statement. He said: "And what you said to those people the truth,
20 Mr. Gashi, did you tell them the truth?
21 "A. The truth as far as I could recollect."
22 Then Mr. Emmerson read the witness a large slab. Mr. Emmerson
23 didn't ask the witness at the end whether what he had said -- what
24 Mr. Emmerson had read to him on the record was true. So where you have a
25 situation where someone has read four or five minutes' worth of
1 transcript, after having said, Is it all true, and what follows, there's a
2 lot of room there for confusion. So in my submission, we're not at the
3 point where it's a position of lying as opposed to another explanation.
4 MR. EMMERSON: May I respond briefly?
5 JUDGE ORIE: Yes, briefly.
6 MR. EMMERSON: Firstly, I don't think, with respect, this is the
7 time to argue what inferences should be drawn from the witness's answers.
8 JUDGE ORIE: No.
9 MR. EMMERSON: And secondly Mr. Re is just simply incorrect
10 because at the end of that passage, I did ask him specifically and in
11 terms in respect to the passages that I had read to him and that he'd
12 signed whether they represented his best recollection at the time that he
13 was interviewed by Defence investigators of the truth of the position and
14 he replied yes.
15 JUDGE ORIE: Yes, that's not exactly what Mr. Re said. But let's
16 not -- Mr. Re said whether this would still be his answer at this moment.
17 Or whether his recollection has -- therefore at this moment is different
18 from what he stated at the time. Let's -- let's not continue this debate.
19 Let's first give an opportunity to Mr. Re to -- to continue or to start
21 Mr. Gashi, I earlier said that you're earlier bound to tell us the
22 truth, the whole truth, and nothing but the truth. I already told you
23 Friday that it is an offence if you would not do so, so therefore
24 carefully think about your answers.
25 Mr. Re, please proceed.
1 WITNESS: MEDIN GASHI [Resumed]
2 [Witness answered through interpreter]
3 Re-examination by Mr. Re: [Continued]
4 Q. Good afternoon, Mr. Gashi. Can you hear me clearly?
5 A. Yes.
6 Q. It might assist if you just turn slightly towards me when I'm
7 asking you questions. Could you do that. And look towards the Court as
8 well. All right.
9 I just want to ask you about your reading and writing ability. I
10 think in your statement you said you had -- to the Prosecution you said
11 you had eight years of primary school; is that correct?
12 A. Yes.
13 Q. How old were you when you left school?
14 A. I don't know. 17 or 18, I think.
15 Q. I think in your statement you said it was 15 years, you were 15
16 year old. Does that assist?
17 A. I don't know. It could be. It could be 15. I apologise. I was
19 Q. When you left school, what sort of work were you doing?
20 A. Mechanic.
21 Q. Did you receive training to be a mechanic; that is, go to a
22 technical college or something like that?
23 A. I worked as a mechanic, and I followed a course for a mechanic.
24 Q. Did you do written exams for it?
25 A. Yes. No written exams but practical, working.
1 Q. What was your reading and writing like when you left school?
2 A. Yes.
3 Q. What does "yes" mean? Could you read and write well?
4 A. I can read well, but as for writing, I can't write that well.
5 Q. Could you read and write as well as the other pupils at school
6 when you left?
7 A. Yes.
8 Q. When you left school, did other pupils stay on at school and go on
9 to finish their school years and you left early?
10 A. Yes, the others followed and I just left it there.
11 Q. Do you know who the accused in this case are or what the
12 accused -- what is meant by "the accused"?
13 A. No.
14 Q. Do you know of any of the people who were charged with any of the
15 offences, do you know what that means, in this court?
16 A. Yes, I do.
17 Q. What do you know? Tell the Trial Chamber what you know about it.
18 A. I know nothing about them.
19 Q. Do you know their names?
20 A. Of one of them, yes, I know his name; and the other two, I don't.
21 Q. What's the one -- whose name do you know?
22 A. I only know Ramush by his name.
23 Q. Do you know why they're here, the three of them?
24 A. No, I don't.
25 Q. Do you know what the defence is or what's meant by the defence?
1 A. Defence, yes, I know.
2 Q. What do you understand is meant by the Defence?
3 A. I don't know.
4 Q. When Mr. Emmerson said to you on Friday that people from the
5 Defence came to speak to you, what did you think he meant?
6 A. Could you please repeat your question.
7 Q. On Friday, Mr. Emmerson said that people from the Defence had come
8 to speak to you and had taken a statement from you. What did you think he
9 meant when he said to you people from the Defence had come?
10 A. I don't know what to say. I don't know how to explain it to you.
11 I don't know.
12 Q. What did you understand when he said that to you? What did you
13 understand he was talking about?
14 A. Well, in fact, I didn't understand anything, and as far as that
15 statement is concerned I have no answers. And the least I could say here
16 is that I'm not here to accuse anyone. I'm here only to testify about the
17 statement that I gave to Sultan in Pristina, who brought me the news that
18 he found my father. As far as other statements are concerned, I will not
19 respond to those statements. I only can respond to the question -- to the
20 statement I gave to Sultan. This is all I can say.
21 JUDGE ORIE: Mr. Gashi, may I just intervene for one moment. It
22 appears that you have to be interviewed twice: Once by the person you
23 called Sultan, and we have a written statement taken approximately one
24 month after that first statement you gave. If there's any question put to
25 you, whether in relation to with the one statement or in relation to the
1 second statement, you'll have to answer these questions to the best of
2 your knowledge.
3 Please proceed, Mr. Re.
4 MR. RE:
5 Q. Do you know what the Prosecution is, Mr. Gashi?
6 A. Prosecution, no, I don't.
7 Q. Do you know what the difference between the Defence and the
8 Prosecution is?
9 A. A little bit, not that much.
10 Q. Tell the Trial Chamber what you understand, what that little bit
12 A. I don't know how to explain it in words.
13 Q. Well, try.
14 A. I don't know really.
15 Q. We've heard evidence of two statements: One to Sultan and the
16 other one to some other people, okay?
17 A. Yes.
18 Q. The statement to the other people, when they came to see you, who
19 did you think they were?
20 A. They were Ramush's Defence, and they said that they were the
21 Defence of Ramush.
22 Q. What did you think that meant?
23 A. It meant that they were there to defend him.
24 Q. Defend him against what?
25 A. That I don't know, against what. I didn't talk that long to them
1 about this subject.
2 Q. How many of them were there?
3 A. Two persons.
4 Q. How many Defence people for Ramush came to see you --
5 JUDGE ORIE: I missed the answer in English -- oh, two persons, I
6 see it now on the screen. Please proceed.
7 MR. RE:
8 Q. Were they men or women?
9 A. Men.
10 Q. Did they -- what are their names, do you remember?
11 A. No.
12 Q. Did they leave you their cards?
13 A. No.
14 Q. Where did you go to tell them your story?
15 A. I went to my house. I didn't tell anyone my story.
16 Q. How did they come to make the statement which has your signature
17 on it or that you signed?
18 A. They came in a car, in my house. First we went and had a coffee
19 together; then, I think it was on the next day when they collected me, we
20 went to Pristina. I gave a statement. Then I returned home again, and
21 then a week or a week and a half later, I'm not sure exactly how long, one
22 of them came back. We had a coffee together. He read the statement to
23 me. I don't know whether it was in English or Turkish or whatever. He
24 asked me if I could sign that. I signed it, and that was it, basically.
25 I had no further contacts with them.
1 Q. Did these men speak to you in Albanian or another language?
2 A. One spoke in Albanian and the other in another language.
3 Q. Did they type into a computer when you spoke to them or did they
4 take notes on a piece of paper?
5 A. Handwritten.
6 Q. When they came back, did they ask you to make any changes to the
7 statement or did they come back with a piece of paper and read it to you?
8 A. They just came and read it back to me and said to me, "Can you
9 sign it?" I said, "Yes, I can." And that was it.
10 Q. Did they give you a copy of it?
11 A. No.
12 Q. Did you see -- ever see a copy of that statement in Albanian?
13 A. No. The first time I saw it was here.
14 Q. And when you saw it here, you saw it on a computer screen in
15 English. Is that right?
16 A. Yes, in English.
17 Q. So had you had any access to that statement between September last
18 year and last Friday when parts of it were read to you?
19 A. Yes.
20 Q. What do you mean by "yes"? I'll put it another way --
21 A. No, I didn't see it, no.
22 Q. All right. When these two men came to speak to you, did they
23 audiotape or videotape you making the statement to them?
24 A. No.
25 Q. And how long were they with you the second time when they came
1 back and read it to you?
2 A. Only one person came back the second time, not the two of them.
3 Altogether, it was about half an hour.
4 Q. And the one who came back, was he speaking to you in Albanian?
5 A. Albanian, yes.
6 Q. Did he ask you whether you wanted to make any changes to the
8 A. I don't know. I don't remember. It all lasted for half an hour.
9 We had a coffee together. He read it to me. I signed it. And that was
11 Q. Why did you go with them to make this statement in Pristina?
12 A. Well, they came and collected me and I went with them.
13 Q. Presumably you had a choice about whether you went. Why did you
14 decide to go with them to make this statement?
15 A. I really don't know what to say.
16 Q. Were any members of your family -- I withdraw that.
17 Did you discuss with any members of your family whether or not you
18 should make this statement before you went and did it?
19 A. No. I have no one left from my family except for my wife. I have
20 no one else to talk to about this.
21 Q. Have you got a grandfather?
22 A. Yes, yes, but we don't live together.
23 Q. Is his name Mustafa?
24 A. Yes.
25 Q. Did you -- did he talk to you about your statement to the Defence?
1 A. No, no, I didn't.
2 Q. Are there members of your family who are supporters of
3 Ramush Haradinaj?
4 A. Yes, yes. Yes, we all support him, me included.
5 Q. Have you spoken to any of those members of your family who support
6 Ramush Haradinaj about your coming here to testify?
7 A. Yes.
8 Q. And what have they said to you about coming here to testify?
9 A. They thought I was joking. They didn't believe me when I said
10 that I was going to come here to testify.
11 Q. Has anyone ever put any pressure on you not to testify or
12 suggested that you shouldn't testify?
13 A. No.
14 Q. Has anyone tried to influence in any way by saying things to you
15 about what you should say when you came here?
16 A. No. I didn't discuss with anyone there this thing.
17 Q. Do you know whether your grandfather, that is, Mustafa, made a
18 report about your father, Kemajl Gashi, a missing persons report to the
19 Department of Justice in -- or Interpol or UNMIK in Pristina?
20 A. To what I know, he made a report to the Red Cross. It was a
21 teacher of mine, I think he reported to her, and she came to our place. I
22 don't know if he made any other report with any other organisation.
23 Q. Were you ever with your grandfather when he made a report to
24 anyone about your father's death?
25 A. No, I wasn't.
1 Q. When on Friday Mr. Emmerson read to you a number of parts of the
2 statement you made to Ramush Haradinaj's Defence in September last year,
3 what did you think he was doing or asking you when he read those -- read
4 those passages to you on Friday?
5 A. I don't know. I didn't pay attention to that statement. He just
6 read it, and I was in a hurry myself. I just signed it and that was it.
7 Q. What about on Friday when Mr. Emmerson, seated to your left over
8 there, read to you large parts of it, what did you think he was doing or
9 asking you when he read it to you?
10 A. I don't know.
11 Q. Well, what did you think you were answering when he was reading it
12 to you?
13 MR. EMMERSON: I'm sorry, I object to this question. I object to
14 the line of questioning as well. The transcript is clear. If Mr. Re
15 wants to take the witness to a particular question and answer, that is
16 another matter. But the questions I put to the witness both before and
17 after putting passages of his statement to him are clear for all to see.
18 And to ask him what the witness thought I was asking whilst reading a
19 passage is liable, particularly given some of the answers that the witness
20 has given, to produce nothing but an unhelpful response.
21 JUDGE ORIE: Mr. Re, it may be clear that the witness is better in
22 concrete matters than in abstract matters. Perhaps you could keep that in
23 mind. Please proceed.
24 MR. RE:
25 Q. Between pages 4882 and 4886 -- excuse me for one moment.
1 Between those pages Mr. -- On Friday afternoon, Mr. Emmerson read
2 to you parts of the statement, and at the end of reading three and a half
3 pages of transcript, those parts of the statement to you, he said to
4 you -- or it's actually 4885, if I've misled anyone, I apologise. He
5 stopped reading at 4885 and then went to the signature. The last question
6 he asked you was:
7 "You've signed that page also, Mr. Gashi. Was it true that you
8 left things out of the witness statement that you gave to the Prosecution,
9 either deliberately or by mistake?"
10 And you answered: "Unintentionally."
11 Now, I'm going to ask you to try and remember what things you left
12 out of the statement to the Prosecution.
13 A. I don't know. I don't remember.
14 Q. Do you remember seeing the video the other day --
15 JUDGE ORIE: Could we perhaps explore that a bit more in detail.
16 Mr. Re, I think the witness is better to be served with concrete examples.
17 In the one statement you signed, you were asked whether your
18 sister Ganimete was a KLA soldier. You said she was not. In the other
19 statement a similar question was put to you -- at least you stated that
20 your sister - and let me -- let me quote you also exactly. You indicated
21 that your sister was in the KLA as well, just as you were. Now, in the
22 one you leave out that your sister was in the KLA; as a matter of fact,
23 you say she was not. Now, in the other statement you say she was. Do you
24 remember why you said in the one interview that she was not a KLA member
25 and whether in the other you said she was?
1 THE WITNESS: [Interpretation] I don't know in which statement I
2 said that my sister was in the KLA.
3 JUDGE ORIE: But is it right or not?
4 THE WITNESS: [Interpretation] No, it's not. My sister was not in
5 the KLA. She was staying with a family in Buqan. She was not wearing any
7 JUDGE ORIE: Yes. But not wearing a uniform does not
8 automatically mean that you are not in the KLA because there were KLA
9 members who did not wear uniforms. So the question is not whether she
10 wore a uniform, but the question is whether she was in the KLA.
11 THE WITNESS: [Interpretation] No.
12 JUDGE ORIE: Did she ever do any work for the KLA? Not being a
13 member but nevertheless --
14 THE WITNESS: [Interpretation] That I don't know. I was not there
15 with her. I was in another place, she was in another.
16 JUDGE ORIE: Yes. Now, in the statement you gave, the second
17 statement you gave, you said that your father was interviewed and so were
18 you and Ganimete. That is a line - and I ask you to focus on Ganimete
19 being interviewed - that does not appear in the first statement. Is that
20 something you left out in the first statement or ...?
21 MR. GUY-SMITH: If I might, Your Honour --
22 JUDGE ORIE: I would first --
23 MR. GUY-SMITH: There are a number of statements here and I'm not
24 sure that the witness is necessarily fixed in a concrete manner as to
25 which statement is which, which is why I rise, since he's indicated he's
1 given a number of statements now and --
2 JUDGE ORIE: Mr. --
3 MR. GUY-SMITH: I think --
4 JUDGE ORIE: I think that the questions are clear enough and I --
5 [Trial Chamber confers]
6 MR. GUY-SMITH: Well, I was confused by your questions, which is
7 why I rose. There are at least three separate times at which he's
8 given --
9 JUDGE ORIE: Mr. Guy-Smith, the Bench considers the questions to
10 be clear enough, even if they do not give the dates of the statements.
11 Mr. Gashi --
12 MR. GUY-SMITH: The reason I asked the question is because you --
13 JUDGE ORIE: Yes, but --
14 MR. GUY-SMITH: The question is whether you are dealing with the
15 issue of memory or dealing with the accuracy of what was said. And since
16 this arose from the context of what he did not remember telling and failed
17 to include in one of the statements, it is yet unclear on the state of the
18 record that we have right now which statement we're referring to. And
19 that's the reason that I rise, for purposes of clarity and for no other
21 JUDGE ORIE: Mr. Gashi, in the one statement at least it's written
22 down on paper that when you were asked -- no. Let me -- whether you -- I
23 already paid attention to the question whether your sister Ganimete was or
24 was not a member of the KLA. Now, in the second of the two statements we
25 talked about, it is written down with your signature on the bottom of that
1 page, and let me read the following.
2 "My father, Kemajl, also later joined the KLA also at Barane.
3 Straight away, he came under suspicion of being in some way associated
4 with the Serb MUP. This was almost certainly because of his association
5 with Nexhat who was generally believed to be a Serbian collaborator. He
6 was interviewed and so were I and Ganimete."
7 Now, in the statement, this is the statement you gave in September
8 last year, in the statement given one month earlier there is no specific
9 mentioning of Ganimete being interviewed.
10 THE WITNESS: [Interpretation] I can only speak about myself. In
11 that statement I did not mention anyone, not Nexhat either. I only
12 mentioned one statement, the statement that I gave to Sultan. As to other
13 statements that another person or my sister gave, I cannot respond to
14 questions related to those statements.
15 JUDGE ORIE: But you signed that statement, and that statement has
16 been given to this Chamber. So if I read portions of that statement, as
17 Mr. Emmerson did last Friday, when you said that that statement was given
18 to the best of your recollection, I would like you to answer the question
19 here as well; that is, when you said that your father, you, and Ganimete
20 were interviewed, was she?
21 THE WITNESS: [Interpretation] I wasn't. As for myself, I wasn't.
22 As for my father and Ganimete, I don't know.
23 JUDGE ORIE: When you heard your father screaming in the room next
24 door --
25 THE WITNESS: [Interpretation] Yes.
1 JUDGE ORIE: Were you at that time interviewed? Were questions
2 being put to you?
3 THE WITNESS: [Interpretation] No. I don't know how to explain it
4 to you. It was only three or four minutes. There was no interview by
5 anyone at that moment.
6 JUDGE ORIE: Mr. Re, please proceed.
7 MR. RE:
8 Q. On Friday, Judge Orie asked you about those bits of the statement
9 which Mr. Emmerson over there read to you when you were sitting there, and
10 you said: "Most of what is there is true but some is not true." Do you
11 remember that, when the Judge -- Judge asked you that and you answered
13 A. Yes, I remember that.
14 Q. How did things that were not true come to be put into that
15 statement? How did the untrue things get into it?
16 A. I don't know.
17 Q. Do you remember when you were asked to sign it whether -- do you
18 remember noticing untrue things in the statement at the time you signed
20 A. I said it earlier, that I didn't pay too much attention to what
21 was read to me. He just read it to me and I signed it. I don't
22 understand English. I wasn't given a copy, and I don't know how to
23 respond to questions about that statement when I was not given a copy of
25 JUDGE ORIE: Mr. Re, there is -- in a previous answer that was on
1 my list of questions still to be put to the witness.
2 You earlier said, "It was read to me. I don't know whether it was
3 Turkish or English."
4 THE WITNESS: [Interpretation] Yes.
5 JUDGE ORIE: Now, did you refer to what was on paper or did you
6 refer to the language in which the statement was read to you?
7 THE WITNESS: [Interpretation] I was referring to what was on
9 JUDGE ORIE: Yes. And in what language was the statement read to
11 THE WITNESS: [Interpretation] Albanian.
12 JUDGE ORIE: In your own language. Yes.
13 Yes, Mr. Emmerson.
14 MR. EMMERSON: I'm sorry. It was apropos of that last issue,
15 apropos of the questions that Mr. Re has just been putting, and apropos of
16 question and answer at page 16, line 25 --
17 JUDGE ORIE: Just a second, please, I might as well get the right
18 -- 16, 25, yes.
19 MR. EMMERSON: "Did he ask you whether you wanted to make any
20 changes to the statement?"
21 "I don't know. I don't remember."
22 If Mr. Re is pursuing this line, in fairness, he ought to ask the
23 witness about page 7 of the statement, where just above the witness's
24 signature the passage appears --
25 JUDGE ORIE: Yes, but don't read it at this moment, Mr. Emmerson,
1 because the witness is of course --
2 MR. EMMERSON: Yes. Your Honour sees the passage.
3 JUDGE ORIE: You have drawn the attention to that part of the
5 Mr. Guy-Smith.
6 MR. GUY-SMITH: Yes, also if I might, once again for purposes of
7 clarity, the answer that was given on line 24 -- I'm sorry, page 24,
8 commencing at line 15, if we could identify the he that he is referring to
9 so that we're very clear who he is talking about each and every time he is
10 dealing with such an issue.
11 JUDGE ORIE: That's unclear to me, Mr. Guy-Smith. I think the
12 testimony of the witness was that when he was interviewed there were two
13 persons, and when the one came back -- that when someone came back that it
14 was one person. So I -- unless you have any other way of understanding
15 that this was -- but of course we could -- let me put one question in this
16 relation, in this context.
17 Mr. Gashi, you said the statement was read to you when -- and
18 there was, if I understood you well, one person that came later to see
19 you, read it to you, and that you then signed the statement. I'm now
20 talking about the second statement, that is, the statement you gave not to
21 Sultan but to the other gentleman, yes? Was the person that came back and
22 read out the statement to you, was that one of the two persons that
23 earlier came to see you and interviewed you?
24 THE WITNESS: [Interpretation] Yes, yes.
25 JUDGE ORIE: Yes.
1 Mr. Emmerson.
2 MR. EMMERSON: I'm very sorry, just to make my position absolutely
3 clear in relation to the point that I raised just a moment ago in relation
4 to page 7, so that it's clear for the record, the passage at the top half
5 of that page is in Albanian and translated.
6 JUDGE ORIE: Yes.
7 MR. EMMERSON: And the witness has signed both versions.
8 JUDGE ORIE: Yes. But it's not the same, as you may have noticed.
9 MR. EMMERSON: Well --
10 JUDGE ORIE: There are differences.
11 MR. EMMERSON: As between the top and the bottom?
12 JUDGE ORIE: Yes.
13 MR. EMMERSON: In terms of the Albanian versus the English?
14 JUDGE ORIE: Yes. For example, I don't know whether you see any
15 8 -- I take it that that's a reference to pages --
16 MR. EMMERSON: Yes, exactly. So the page numbers.
17 JUDGE ORIE: Yes, so it's not the same.
18 MR. EMMERSON: I think that we can have the verbatim translation
19 of that upper passage but it is plainly in Albanian.
20 JUDGE ORIE: No, it's quite clear -- of course that's clear to me
21 and I -- I asked you not to read it. I take it that Mr. Re has observed
22 what you said. Whether you should have asked that in a further
23 possibility to examine the witness or whether you should have intervened
24 is another matter, but at least, Mr. Re, you notice that Mr. Emmerson has
25 drawn your attention to page 7 of the statement, especially the -- the
1 certificates in there.
2 Please proceed.
3 MR. RE:
4 Q. Judge Orie a little while ago when I asked you about page 20, line
5 1: "Was it true that you left things out of the witness statement that
6 you gave to the Prosecution either deliberately or by mistake?"
7 And you answered to Mr. Emmerson: "Unintentionally."
8 You said you couldn't remember which bits you'd left out, and the
9 Judge asked if I could explore it with you in a little more detail. I'm
10 just going to hand you a copy of your statement in the Albanian
11 translation and if you can read through it and tell the Court if you can
12 remember anything you've left out of this statement?
13 JUDGE ORIE: You are now --
14 MR. RE: I'm showing the witness the Albanian translation of his
15 English statement --
16 JUDGE ORIE: Of the --
17 MR. RE: -- Of August 2006.
18 JUDGE ORIE: Yes.
19 MR. RE: I think it's the 4th of August, 2006.
20 [Trial Chamber confers]
21 MR. RE:
22 Q. So what I want you to do is just to read through the statement.
23 Are you okay with reading it, first of all?
24 A. I can read it, but I don't know. It's been a year and I don't
25 know what has happened from that time on. It's been a year since I gave
1 this statement.
2 Q. Okay. All I want you to do, if you can read it, is just to go
3 through it and if you can remember anything that isn't in the statement
4 but should be there, just tell the Trial Chamber what it is. Okay.
5 [Trial Chamber confers]
6 MR. GUY-SMITH: I think ...
7 [Trial Chamber confers]
8 JUDGE ORIE: Mr. Re.
9 MR. RE: Yes, Your Honour.
10 JUDGE ORIE: It's a statement of 32 paragraphs, which the witness
11 might not be able to read right away. The Chamber suggests the
12 following: We'll have a break. We'll invite the witness to read the
13 Albanian version of his earlier statement. During the break he'll have an
14 opportunity to point at matters which he thinks he should have stated at
15 that time and which he does not find in the statement. You will have
16 another five to ten minutes to continue your examination. Then the
17 Defence will have an opportunity to further examine the witness, if
18 there's any need to do so.
19 Yes, Mr. Emmerson.
20 MR. EMMERSON: [Microphone not activated]
21 JUDGE ORIE: Yes, could you -- yes, Mr. Emmerson.
22 MR. EMMERSON: I'm obviously entirely in Your Honour's hands as to
23 whether you think this exercise that Mr. Re proposes to embark upon is a
24 useful one, but it is plain as it possibly can be that this witness has
25 made inconsistent statements. And for a witness now to be asked to read
1 one statement where he has already made a subsequent statement in which he
2 has said in terms and signed in terms, to say that he had left things out
3 of the first statement and has then included a large number of things in
4 the second statement which were not included in the first statement, which
5 he has first avowed and supported and then disavowed on oath, it's
6 entirely a matter for Your Honours whether for the record it would be of
7 assistance to have the man say there is or there isn't anything I should
8 have said in this statement. But frankly in my submission, we've reached
9 the position where this is something of a charade and an attempt to
10 bolster a witness whose ability to provide reliable evidence is manifestly
11 reached a point where this type of questioning can't assist.
12 That would be my submission.
13 JUDGE ORIE: Yes.
14 MR. GUY-SMITH: I join --
15 JUDGE ORIE: You join.
16 And Mr. Harvey, you join as well. From the fact that the Chamber
17 grants limited time for this exercise, although the time then to be used
18 as good as it can be and not to wait here and sit for 15 minutes in court,
19 you may understand from this approach that although the Chamber allows, to
20 some extent, this exercise that the question as to the usefulness of it
21 has been considered by the Chamber.
22 Mr. Gashi, what we would like you to do is to read the statement
23 that was just given to you, that's a statement in your own language.
24 Mr. Re, in view of the limited time available, are there specific
25 portions that you would like the witness to read? Is there a certain
1 place where you would like him to start to read?
2 MR. RE: The main portions would be from paragraph -- paragraph --
3 sorry, paragraph 15 through to paragraph 30.
4 JUDGE ORIE: Yes. We would like you to read the statement
5 starting at paragraph 15, reading the remainder of your statement. If
6 there's any time left, of course you could also read the first paragraphs,
7 but you're instructed to start reading at 15. And then after the break
8 you could tell us whether, now having re-read the statement, whether
9 there's anything that comes into your mind of which you say, Well, this is
10 what I should have added or I should have told at the time. That's what
11 we'd like you to do. Do you understand that?
12 THE WITNESS: [Interpretation] Yes.
13 JUDGE ORIE: Yes.
14 Then we'll have a break and we'll resume at five minutes to 4.00.
15 --- Recess taken at 3.29 p.m.
16 --- On resuming at 3.58 p.m.
17 JUDGE ORIE: Mr. Gashi, did you have an opportunity to read --
18 THE WITNESS: [Interpretation] Yes.
19 JUDGE ORIE: -- the statement? Did you read it entirely or just
20 the portion down from paragraph 15?
21 THE WITNESS: [Interpretation] From paragraph 15 to paragraph 32.
22 JUDGE ORIE: Yes. Thank you. Is there anything that now
23 spontaneously comes into your mind? Did you say, Well, I left out
24 something that I considered I should have said at the time? Is there
25 anything of the kind that you would like to draw our attention to, please
1 do so.
2 THE WITNESS: [Interpretation] No.
3 JUDGE ORIE: No.
4 Then, Mr. Re, I think I said five to ten minutes. Should we make
5 it eight?
6 MR. RE: I don't think I need eight, but I'll --
7 JUDGE ORIE: Okay. Please proceed.
8 MR. RE:
9 Q. You just said there's nothing you wish to draw our attention to.
10 Is there anything you can remember leaving out that's not there that
11 should be there?
12 A. No.
13 Q. Do you remember the video which we briefly showed you in court the
14 other day. Just tell us, do you remember whether your father was in that
16 A. You couldn't see very well from there.
17 Q. Do you remember whether you could see your father in that video?
18 Was he there? Did you see him?
19 A. No.
20 Q. Could you see the Mete's office where --
21 JUDGE ORIE: Mr. Re, you're putting two questions to the witness.
22 He answers no.
23 I did understand that you did not see your father on the video.
24 Even if you don't see him on the video, was he there?
25 THE WITNESS: [Interpretation] I don't know. I don't know.
1 JUDGE ORIE: Thank you.
2 Please proceed, Mr. Re.
3 MR. RE:
4 Q. In that video could you see the building or the office where Mete
5 office was that you went to when you heard your father screaming?
6 A. No.
7 MR. RE: I have no further questions, Your Honour.
8 JUDGE ORIE: Thank you, Mr. Re.
9 Mr. Emmerson, you are the first one.
10 MR. EMMERSON: I wonder if Your Honour would just permit me one
11 very short passage of further questioning.
12 JUDGE ORIE: Yes.
13 MR. EMMERSON: I wonder if we might have D92 up on the screen on
14 page 7, please.
15 JUDGE ORIE: Yes.
16 MR. EMMERSON: Just focus in - yes, thank you very much - on the
17 Albanian and a little lower down if we can just take it -- just to there.
18 That's fine.
19 Further cross-examination by Mr. Emmerson:
20 Q. Now, Mr. Gashi, can you see the screen clearly?
21 A. Yes.
22 Q. And can you see your signature there as the first of the two
23 signatures on the screen?
24 A. This is not my signature.
25 Q. Mr. Gashi, look at the bottom portion.
1 MR. EMMERSON: Go to the bottom of the page.
2 Q. You identified this as your signature in your evidence in chief.
3 A. This one here, on the left --
4 Q. Yes. Would you agree that that is your signature?
5 A. Yes, yes.
6 Q. And the other signature's signed by the gentleman who read the
7 statement to you, isn't it, in your presence?
8 A. Yes.
9 MR. EMMERSON: Just go a little further up then please back to the
10 signature we were looking at again.
11 Q. The first signature there that's showing on the screen now, you
12 signed that, Mr. Gashi, didn't you?
13 A. Yes, yes.
14 Q. So it is your signature; you agree with that?
15 A. Yes.
16 Q. Why did you tell us just a moment ago that it wasn't?
17 A. Well, I thought it wasn't but then I saw the dot at the end.
18 MR. EMMERSON: Perhaps we can just look at the Albanian again,
19 please, go to the top of the page. Thank you. Pausing there for a
21 Q. I'm not going to ask you - unless the Trial Chamber would wish
22 it - to read the Albanian out for the record. We can do that separately.
23 Could you please read to yourself, just for yourself, the second of the
24 two paragraphs that appear there, please. Just make sure you've
25 understood it. Do you understand that paragraph?
1 A. Yes.
2 Q. Does that paragraph say that you fully understand the statement
3 that you have made and that it is true to the best of your knowledge and
4 recollection? Is that what that paragraph says?
5 A. Yes.
6 Q. And that the statement is given voluntarily; correct?
7 A. Yes.
8 Q. Now read the next paragraph, that's the third one down, to
9 yourself, please.
10 MR. RE: It may be of assistance to the Trial Chamber if the
11 witness were to read it aloud. It may clarify something.
12 MR. EMMERSON: I'm very happy for that to be done in which case --
13 JUDGE ORIE: In which case perhaps you could start with the first
15 MR. EMMERSON: Exactly.
16 Q. Could you, please, Mr. Gashi, start again at the top of that text,
17 please, and slowly read aloud for us the first paragraph.
18 A. "I have read this statement APO. This statement contains eight
19 pages and it was read to me in Albanian."
20 Q. Thank you. Now could you please read the second paragraph.
21 A. "I fully understand this statement, and this statement is accurate
22 to the best of my knowledge and recollection. I gave this statement
24 Q. Thank you. Now could you read the third paragraph, please.
25 A. "I was told that I can improve, change, or add anything that I
1 wish to this statement."
2 Q. And then the final paragraph there, please.
3 A. "I am aware that it may be used in the juridical procedures before
4 the ICTY, that in the cases against the people who are responsible for
5 various violations of the international law in the territory of
6 ex-Yugoslavia from 1991 and that I will -- may be invited to testify."
7 Q. And finally, please, the line that appears opposite your
8 signature, what does that say? Could you read that for us, please.
9 A. "The signature of the person who gave the statement."
10 Q. You have just been sent outside from the Tribunal for 20 minutes
11 or so to read your own Prosecution witness statement, and in that time I
12 think you told us you managed to read from paragraph 15 to 32. Is that
14 A. Yes, 32.
15 Q. You have no difficulty in reading the text in Albanian that's
16 right in front of you now, do you?
17 A. A little bit.
18 Q. I see. And you've signed there, Mr. Gashi. Can we assume that
19 you read the Albanian there before you signed it?
20 A. No.
21 Q. Thank you.
22 JUDGE ORIE: Mr. Guy-Smith.
23 MR. GUY-SMITH: Yes.
24 Further cross-examination by Mr. Guy-Smith:
25 Q. Mr. Gashi, when you spoke with Mr. Sultan, did he audiotape or
1 videotape you making the statement to him?
2 A. I don't know.
3 Q. Did you see any tape recorder when you were being interviewed by
4 Mr. Sultan when you made the statement to him?
5 A. As far as I know, no.
6 Q. Did you see any camera that was being used during the period of
7 time that you were making the statement to Mr. Sultan?
8 A. No.
9 Q. Thank you.
10 JUDGE ORIE: Mr. Harvey.
11 MR. HARVEY: No questions.
12 JUDGE ORIE: Mr. Gashi, this concludes your testimony in this
13 court. I'd like to thank you for coming to The Hague and for answering
14 all the questions put to you by the parties and by the Bench.
15 Madam Usher, would you please escort Mr. Gashi out of the
16 courtroom, but not until I have wished you a safe trip home again,
17 Mr. Gashi.
18 THE WITNESS: [Interpretation] Thank you.
19 [The witness withdrew]
20 JUDGE ORIE: Madam Registrar, any exhibits left with this witness?
21 We have not yet finally assigned a number to the -- to the documents we
22 received today.
23 [Trial Chamber and registrar confer]
24 JUDGE ORIE: Let's try to deal with the exhibits. I've still got
25 on my list P325, which is a photograph; and P326, which is a series of
1 photographs, school building.
2 Any objection?
3 MR. EMMERSON: No.
4 JUDGE ORIE: Not -- then P325 and 326 are admitted into evidence.
5 Then we have, numbering not being sequential, but D91, the
6 statement of the sister of the witness.
7 MR. EMMERSON: Yes.
8 JUDGE ORIE: D92 is the September 2006 statement by the witness
9 given to the investigator of the Defence; and D96 being the two documents,
10 Department of Justice, medical examiner, and disaster victim
11 identification, in relation to the father of the witness.
12 Any objections against the exhibits?
13 MR. RE: Certainly not against D92, nor the missing persons report
14 to the Department of Justice.
15 JUDGE ORIE: D96. D91 then remains --
16 MR. RE: D91 is the statement of the sister. It's -- she's not
17 here to -- she's not a witness here. A passage of her statement was read
18 to the witness. Normally, it should just remain at that.
19 JUDGE ORIE: Yes. You say you have -- if the whole of the
20 statement would be in evidence, there would have been no possibility for
21 the Prosecution to cross-examine the witness.
22 Mr. Emmerson.
23 MR. EMMERSON: The position is that this witness gave evidence
24 that his sister had told him that she saw her father alive two weeks after
25 he was last seen at the barracks, and both parties, and indeed the
1 Trial Chamber, have explored with him the basis for the conclusion that
2 what his sister said to him was capable of being dated as an incident that
3 took place or a meeting that took place after rather than before the
4 occasion when he saw his father, or rather, heard his father's -- the
5 sound of his father screaming inside the barracks.
6 In addition, he has given evidence to the Defence about having
7 seen his father washing dishes in the kitchen and his sister, in her
8 witness statement, says that he told her that at that time. Now, in our
9 submission, this is an item of real evidence which is available for the
10 Trial Chamber to consider. I recognise that the weight to be attached to
11 those passages in the witness statement is less than it would be if she
12 were here to give evidence and be cross-examined on them. But the hearsay
13 he has already given about what she told him is in evidence, and therefore
14 to have from the source of the hearsay statement the basis for her account
15 in a statement given to the Prosecution, in our submission, if this count
16 is persisted with, is material that should properly be before the Trial
18 JUDGE ORIE: Mr. Re, would you like to add anything to what you
19 said earlier? Finally, it's objection or no objection. I mean, the
20 Chamber will decide if the objection is there; if there's no objection,
21 then finally the Chamber will not necessarily admit it but it's more
22 likely that the Chamber will admit it. Does the objection stand or not?
23 MR. RE: At the moment it does.
24 JUDGE ORIE: At the moment it does, okay, then the Chamber will
25 determine the matter.
1 Then are you ready to call your next witness?
2 MR. RE: There's also the witness's own statement the 4th of
3 August, 2006. Now, it wasn't put on the exhibit list as such in the same
4 way as D92 was but he did read the Albanian version of it and the
5 Trial Chamber has seen it. But in my submission -- or I move for its
6 admission into evidence although --
7 JUDGE ORIE: From the bar table.
8 MR. EMMERSON: And on the same basis as the sister's statement I
9 have no objection to the Trial Chamber in this particular instance, having
10 that statement admitted in evidence as well.
11 JUDGE ORIE: Yes. Then it should be assigned an exhibit number.
12 That -- but have it -- do we have the -- we are now talking about the
13 Albanian version of the August 2006 statement, which is not yet in
14 evidence or we need it -- do you have a 92 ter number for it?
15 MR. RE: We don't. Mr. Smith can have it in e-court in half an
16 hour if it can be given a virtual number, shall we say.
17 JUDGE ORIE: Yes.
18 Madam Registrar, have we already in anticipation of --
19 MR. EMMERSON: I think we have it in the system, I'll give you the
20 Defence document identification for it in just one moment.
21 MR. RE: We should have the Albanian because he read the
22 Albanian. Both should go in, in my submission.
23 MR. EMMERSON: Certainly the Prosecution statement in English
24 which is the signed version and I think the original, unless I'm wrong, is
25 Defence document identification 1D410001.
1 JUDGE ORIE: Yes. This document, if admitted into evidence,
2 should be in the two languages, the witness having read one of them and we
3 were able to read the English version.
4 Madam Registrar, that would be -- it -- although it comes from the
5 Defence, it -- it's tendered by the Prosecution.
6 That would be P ...?
7 THE REGISTRAR: Your Honours, this would be Exhibit Number P327,
8 marked for identification.
9 JUDGE ORIE: And is admitted into evidence in the absence of any
11 Are you ready to call your next witness?
12 MR. RE: Yes, the next witness is Mr. Jakup Krasniqi, will be
13 taken by my colleague Mr. Kearney with Mr. Gosnell's assistance. And if
14 Your Honours would excuse me and Ms. Schweiger.
15 MR. EMMERSON: Your Honour, before the next witness is called may
16 I respond to Your Honour's inquiry in relation to protective measures for
17 Witness 6.
18 JUDGE ORIE: I was informed, as a matter of fact, informally, and
19 that should now be put on the record that there are no objections against
20 the protective measures sought in relation top Witness 6. That's one.
21 Second, there was a request from the Defence whether written
22 submissions could be made in respect of -- in response to the written
23 submissions made by the Prosecution in view of the Zyrapi exhibits. And
24 that request is granted, although the Chamber does not expect very lengthy
25 submissions there.
1 [Trial Chamber and registrar confer]
2 JUDGE ORIE: Mr. Kearney, do I understand that the Prosecution is
3 seeking admission under Rule 92 ter of the 23rd and 24th of May, 2007
5 MR. KEARNEY: That's correct, Your Honour, as well as also the
6 transcript of the testimony of this witness from the Limaj trial in 2005.
7 JUDGE ORIE: Yes. There may be some confusion there, because the
8 statement gives a lot of annexes, of which it's unclear -- are you seeking
9 the annexes to be admitted as well? Because you're also separately --
10 annex 12 was also part of your 92 ter motion and therefore some confusion
11 is there. But perhaps we first start with the witness.
12 [The witness entered court]
13 JUDGE ORIE: Mr. Krasniqi, do you have do you hear me in a
14 language you understand?
15 THE WITNESS: [Interpretation] Yes, I do.
16 JUDGE ORIE: Before you give evidence, the Rules of Procedure and
17 Evidence require you to make a solemn declaration that you will speak the
18 truth, the whole truth, and nothing but the truth. The text is now handed
19 out to you by Madam Usher, and I would like to invite you to make that
20 solemn declaration.
21 THE WITNESS: [Interpretation] I solemnly declare that I will speak
22 the truth, the whole truth, and nothing but the truth.
23 JUDGE ORIE: Thank you, Mr. Krasniqi. Please be seated.
24 Mr. Krasniqi, you'll first be examined by -- it will be you,
25 Mr. Kearney?
1 By Mr. Kearney, who's counsel for the Prosecution.
2 Please proceed.
3 MR. KEARNEY: Your Honour, thank you, members of the
4 Trial Chamber.
5 WITNESS: JAKUP KRASNIQI
6 [Witness answered through interpreter]
7 Examination by Mr. Kearney:
8 Q. Mr. Krasniqi, good afternoon, sir.
9 A. Good afternoon.
10 Q. Could you please state your name for the record.
11 A. I am Jakup Krasniqi.
12 Q. Could you please tell us your date of birth, sir.
13 A. I was born on the 1st of January, 1951.
14 Q. And where were you born?
15 A. I was born in Negrovce village.
16 Q. Mr. Krasniqi, last week here in The Hague on May 23rd and 24th,
17 did you provide a statement to the Prosecution?
18 A. Yes, I did.
19 Q. After making that statement, were you given an Albanian copy of
20 that statement to review for accuracy?
21 A. Yes, I was. I read it and I signed it afterwards.
22 Q. In addition to reviewing that document, did you also review a
23 series of annexes that were attached to that document?
24 A. Yes, I did.
25 Q. And were -- did you make comments about those annexes which were
1 included in the statement that you signed?
2 A. Yes, I made some short comments.
3 MR. KEARNEY: Your Honour, with the Court's permission ...
4 [Trial Chamber confers]
5 JUDGE ORIE: Please proceed, Mr. Kearney.
6 MR. KEARNEY: Your Honour, with the Court's permission, at this
7 time I'd like to show the witness 65 ter Exhibit 1346, if we may.
8 Q. Mr. Krasniqi, can you see that document, the title page, the first
9 page, in front of you?
10 A. Yes.
11 MR. KEARNEY: May we scroll down to the signature portion.
12 Q. Mr. Krasniqi, do you recognise your signature on that document?
13 A. Yes, it's my signature.
14 Q. I'd like to ask you if this statement reflects what you would say
15 in court today if you were asked the same questions that you were asked
16 during that statement last week?
17 A. What I've already stated in my statement, I'm going to state it
18 here too.
19 MR. KEARNEY: Your Honour, at this time I would tender this
21 JUDGE ORIE: Madam Registrar, that would be number ...?
22 THE REGISTRAR: Your Honours, this will be Exhibit Number P328,
23 marked for identification.
24 JUDGE ORIE: Any objection? I hear of no objections, then P328 is
25 admitted into evidence.
1 Please proceed, Mr. Kearney.
2 MR. GUY-SMITH: I have no objection to it, but I do make one
3 comment which is there is no indication in the statement made what
4 questions were asked, so there's an assumption that's being made, however
5 I certainly have no objection to the statement coming in.
6 JUDGE ORIE: Thank you, Mr. Guy-Smith.
7 Please proceed, Mr. Kearney.
8 MR. KEARNEY: Thank you, Your Honour.
9 Q. Mr. Krasniqi, also in that statement at paragraph 9 you say that
10 you told the truth during your testimony in the Limaj trial here in
11 The Hague in 2005. Is that accurate, sir?
12 A. Yes, it is.
13 Q. You were also asked if you were asked the same questions that you
14 were during the course of your Limaj testimony in this trial, you would
15 give the same answers. Is that also true?
16 A. Yes, it is also true.
17 MR. KEARNEY: And, Your Honour, I would seek to tender that
18 document now if the Court, as it mentioned earlier, wants to take that
19 matter under submission, that's fine. I would notify the Trial Chamber
20 that I did ask the Defence last week if there would be an objection to the
21 admission of that document, and my understanding is that there was not.
22 So I would tender it at this time.
23 MR. EMMERSON: Your Honour, my position and in this respect I
24 speak only on behalf of Mr. Haradinaj, is that I have no objection to the
25 transcript being admitted; however, as will be obvious, cross-examination
1 in that case was directed to the issues in that case. And whilst we are
2 all grateful to the Prosecution for shortening evidence in chief, I hope
3 Your Honours will bear with me if the usual ratio of evidence in chief to
4 cross-examination is disturbed by that process because there are issues I
5 need to explore in cross-examination which clearly were not explored in
6 cross-examination in Limaj.
7 JUDGE ORIE: Yes. --
8 MR. EMMERSON: In other words, Mr. Kearney's been kind enough to
9 indicate that he expects to be less than an hour in chief --
10 JUDGE ORIE: Yes, of course -- the Limaj testimony, of course,
11 is -- stands no need to repeat it but that should not shorten the
12 reasonable time to be granted --
13 MR. EMMERSON: Thank you.
14 JUDGE ORIE: -- to the Prosecution. That's understood.
15 Then, Mr. Kearney, I have therefore, the transcript for the Limaj
16 case that is transcript pages, I take it that will be uploaded soon,
17 I'm -- have 3285 up to and including 3493. Then about the exhibits dealt
18 with in the testimony in Limaj, same position, no objection, Mr. --
19 MR. EMMERSON: No. I think Your Honours will have appreciated
20 that the exhibits attached to this witness's 92 ter statement involve a
21 considerable degree of duplication with the exhibits that were exhibited
22 in the Limaj testimony.
23 JUDGE ORIE: Yes. I, therefore, suggest, Mr. Kearney, that you go
24 through the attachments to the Limaj testimony and the attachments to
25 the -- that is, the -- that is the 19 documents attached to the statement
1 and see whether there are any doubles in it and then make a final list so
2 that we have -- finally we have then three items: That is, one,
3 transcript; second, witness statement 23rd and 24th of May of this year;
4 and then attachments, either to both or to one of these, and then have
5 perhaps --
6 MR. EMMERSON: I think unless I'm much mistaken, all of the
7 appendices to the 92 ter statement are -- I see that I am mistaken.
8 JUDGE ORIE: I think you are mistaken.
9 Please proceed. We'll get the final list from Mr. Kearney.
10 MR. KEARNEY: Your Honour, as my colleague suggested, I do intend
11 to be very brief in my direct examination today.
12 Q. Mr. Krasniqi --
13 MR. KEARNEY: -- and to the Trial Chambers --
14 Q. -- I intend to focus on four areas. The first one is the factual
15 basis for the KLA communiques themselves, with particular emphasis
16 regarding the Dukagjini Zone; secondly, the military operations carried
17 out by the KLA in 1997 and the early part of 1998; thirdly, discipline
18 procedures for KLA soldiers; and lastly, the process involved in ordering
19 the death of a collaborator, with an emphasis again on the Dukagjin Zone.
20 So, Mr. Krasniqi, those are the areas I will ask you about today.
21 And the first question has to do with the actual factual basis for the
22 communiques and the statements that were made that are reflected as
23 annexes to your statement of last week. I want to ask you, sir: Where
24 did the actual operational details come from? When you reported in either
25 a communique or an article or an interview about certain KLA actions
1 having been taken in certain subzones, where did that information come
2 from, please, if you could tell us.
3 MR. EMMERSON: I'm sorry. I do apologise for interrupting so
4 soon, but given a close reading of this witness's testimony in the Limaj
5 case, it does, with respect, seem to me that there was an antecedent
6 question which is to what extent did this witness himself author the
7 operational details in the communique of military activity. Because the
8 question makes an assumption which is not, in my judgement, supported by
9 the transcript in Limaj that this witness was personally the author of
10 those parts of the communiques that deal with military activity.
11 MR. KEARNEY: I would, with all respect to my colleague, very much
12 disagree, Mr. President. The -- it's very clear from the transcript and
13 from his 92 ter statement that this witness was a member of the General
14 Staff at all times when the communiques at issue were made. And he is
15 very much able to talk about the process of how communiques were assembled
16 and where the information that contributed to them came from. And if the
17 Court would like, I can start off with concrete examples to lead the
18 witness through if that would help.
19 MR. EMMERSON: Sorry, just to make it clear, I have no objection
20 at all to this witness giving evidence about methodology --
21 JUDGE ORIE: No, it's just -- I do understand that you understand
22 that you consider the authorship to be slipped in where is there's not and
23 I'm not really certain that Mr. Kearney is -- that is what Mr. Kearney
24 did, as a matter of fact. He was, I think, talking about communiques and
25 reports and he was thinking about what were the sources of information,
1 irrespective of whether this witness himself authored the communiques or
2 not. He could have observed what others may have done.
3 Mr. Harvey.
4 MR. HARVEY: It should also not be taken for granted that this
5 gentleman was at all relevant times a member of the General Staff with
6 these responsibilities. So I didn't want that to just slip under the --
7 JUDGE ORIE: Yes.
8 MR. HARVEY: -- the mat as well.
9 JUDGE ORIE: Mr. Kearney, please proceed in a way you did and you
10 have the -- the signals given to you are not unnoticed, I take it. Please
11 proceed, and let's try to intervene not too early.
12 Please proceed.
13 MR. KEARNEY: Thank you, Your Honour.
14 Q. Mr. Krasniqi, I wanted to ask that question again. Do you have it
15 in mind, sir?
16 A. Yes.
17 Q. The question was -- and we're talking now generally. We'll talk
18 about specifics of individual communiques in a moment, but just in
19 general. When a communique was issued by the KLA General Staff regarding
20 operational activity in the subzones, where did the General Staff gain
21 that information that went into the communiques, please?
22 A. I think that in my statement in the Limaj trial I've already
23 explained this issue; however, I can do it again. At that time I stated
24 that the political process and the political responsibility was separate
25 from the operational one. And the organisation was very much limited. As
1 for the communiques of the KLA General Staff, these communiques were
2 issued by the operational units and they were published on behalf of the
3 General Staff. At the time when the communiques were written or compiled,
4 I was not the person in charge and I did not take part in compiling them
5 or in deciding whether they should be published or not. We dealt mainly
6 with the political statements of the KLA General Staff in which we
7 described the policy of the General Staff and the KLA in general.
8 In other words, the communiques were mostly related to the
9 operative wing of the army. And at that time, this army was more of a
10 guerilla army than a properly organised modern army.
11 MR. KEARNEY: Perhaps we can better proceed, Your Honour, by
12 pulling up an example. I'd like to, if I may, call up 65 ter 1346, this
13 is annex number 5 to the 92 ter statement. And I'm going to be referring
14 to page 1 of the English.
15 MR. EMMERSON: In order to save time --
16 JUDGE ORIE: Mr. Emmerson.
17 MR. EMMERSON: -- I'm sorry.
18 I know that Mr. Kearney has a file of paper copies of the annexes
19 to this witness's statement, and given that there may be a number of
20 documents to be examined, I certainly would have no objection to him
21 providing the witness with the annexes to his 92 ter statement on paper so
22 that whilst things are being loaded examination can continue. Otherwise
23 we may waste some time.
24 MR. KEARNEY: That's correct. I brought an Albanian version of
25 the annexes for the witness to save time. I'm happy to, with the Court's
1 permission, to give it to him at this time.
2 JUDGE ORIE: Yes. There's no objection against that I see from
3 the Defence. You are allowed to do that.
4 I suggest that once we have -- if you could prepare an index from
5 what you showed to the witness, we then later assign exhibit numbers to
6 them. But we now know that annex 5 is shown to the witness.
7 MR. KEARNEY: Thank you, Your Honour. And I'm informed by our
8 case manager that this is -- the page numbers in the 65 ter exhibit are 24
9 and 25, if that helps.
10 JUDGE ORIE: Madam Registrar -- yes.
11 MR. KEARNEY:
12 Q. Mr. Krasniqi, can you open your folder there to annex number 5.
13 Do you have that in front of you, sir?
14 A. Excuse me, I left my glasses in the waiting room and I cannot see
15 the page now very clearly.
16 JUDGE ORIE: Then if someone could get the glasses of
17 Mr. Krasniqi.
18 Madam Usher, your assistance is appreciated.
19 MR. KEARNEY: Your Honours, since this is a rather short sentence,
20 perhaps I could read it orally.
21 JUDGE ORIE: If you read it to the witness, then please do so.
22 MR. KEARNEY:
23 Q. Mr. Krasniqi, this is about two-thirds of the way down the
24 document for those reading in English. I'm going to quote a sentence from
25 this document which was published in Pristina Bujku on 5 December 1997.
1 "On 27 November, the police station at Irzniq was attacked. The
2 Serbian policeman Dragan Davidovic was killed and two others were
4 Now, Mr. Krasniqi, does that fit with your -- even though you
5 can't read that document, does that fit with your memory of what it says,
7 A. The actions carried out by members of the Kosovo Liberation Army
8 are described in the communique. And this communique, of course I read it
9 afterwards as well.
10 Q. This is communique number 40, reported in December of 1997. Do
11 you know who composed this communique?
12 A. No, I don't know.
13 Q. Was it someone on the General Staff?
14 A. In my statement during the Limaj trial and also a few days ago,
15 I've already explained that the staff was dispersed in several locations.
16 There was a limited number of General Staff members who were in Kosovo
17 acting in illegal way, while another part was operating in Albania and in
18 some European countries.
19 Q. And, Mr. Krasniqi, thank you for that answer, but I'm -- my
20 question is much more simple. Do you know who composed this document?
21 A. I already told you that I don't.
22 Q. Was this communique or were communiques such as these, the ones
23 that were numbered, we're going to refer to several of them today, but
24 this number 40 communique, was that sent to Pristina Bujku newspaper by
25 someone from the General Staff or by someone from an operational zone?
1 A. The communique could have been sent by a person who at the
2 relevant time was designated to submit these communiques to Bujku or to
3 other newspapers or media.
4 Q. And who would have been designated to submit those communiques to
6 A. I don't know at that time who was the person who was designated.
7 I was acting clandestinely at the time, so I could not communicate with
8 the mass media.
9 Q. Mr. Krasniqi, does it help your memory to hear the following
10 sentence from your statement that you gave to the Prosecution last week.
11 This is in the statement regarding annex 5, I'm going to quote: "The
12 report references UCK communique number 40. The contents of the article
13 are an accurate reflection of this communique as issued by the UCK General
15 Now, Mr. Krasniqi, did you make that statement to the Prosecution
16 last week?
17 A. Yes. I said that the content is the content of the General Staff.
18 The General Staff did not object to this communique and it was accepted by
19 the General Staff. This is what I also said in the Limaj trial.
20 Q. Now, sir, last week in your statement - I'm going to refer the
21 Trial Chamber and my colleagues to the last clause of this sentence
22 regarding annex 5 - you say: "... This communique as issued by the UCK
23 General Staff."
24 Now, did the UCK General Staff issue this communique or not, sir?
25 A. I've already said before and I'm saying it again today, KLA
1 General Staff, and this is what I said in the Limaj trial as well. And I
2 don't think there's any difference between what I've said then and what
3 I'm saying now.
4 Q. Now, sir, in this same communique, this is number 40, this is
5 annex number 5 which I believe you have in front of you now, there are --
6 there is information, is there not, that comes from different operational
7 zones; namely, zone 1 is represented, the Dukagjini Zone is represented.
8 Isn't that true?
9 A. All the information in the communique comes from the KLA, from the
10 Kosovo Liberation Army.
11 Q. Thank you for that answer, but I'm asking you: Was it the role of
12 the General Staff to collect operational data from different subzones, put
13 them into communiques, and pass those communiques on to the media?
14 A. The question that you're asking assumes that the General Staff
15 lived and worked in comfortable premises and worked in normal conditions.
16 The General Staff worked clandestinely and it was difficult to do an
17 organised and systematic work that you're putting here. The conditions
18 were very difficult, very limited. This material is propaganda material
19 to raise the morale of the citizens, but of course the KLA was far from
20 being a proper, organised army, especially in the time -- at the time when
21 we are talking about.
22 Q. After you became the spokesperson for the KLA, did you make -- or
23 did you have regular contact with the press?
24 A. I became spokesperson of the KLA in June 1998. This was the
25 official time when I started to work as -- in that position. At that time
1 we communicated with the press or, to put it in a better way, the domestic
2 media and international media were interested to get information from us
3 about the KLA.
4 Q. And on those occasions when you contacted the press after you
5 became KLA spokesperson, when you gave the press operational data about
6 what was going on in the field, where did you get your information from?
7 A. During that time we received the information from the subzones of
8 the KLA, mainly by satellite telephones; and on the basis of the
9 information received, we also compiled the political statements and the
10 communiques of the KLA, but always as propaganda material.
11 Q. And the political statements and the communiques of the KLA,
12 before you became the spokesperson, were they constructed in the same way,
13 Mr. Krasniqi?
14 A. I don't know about the earlier period because I was not author or
15 participant in compiling those communiques.
16 Q. When you told us in your statement last week that the information
17 contained in the annexes was accurate, how were you able to make that
19 MR. EMMERSON: I'm sorry, can I --
20 JUDGE ORIE: Mr. --
21 MR. EMMERSON: -- be clear what Mr. Kearney is putting. The
22 passage he's put so far is that the contents of the article, newspaper
23 article, is an accurate reflection of the communique, whereas what he's
24 now putting is that the information contained in the annexes is accurate.
25 What the witness --
1 JUDGE ORIE: As a matter of fact, Mr. Kearney is returning to his
2 original question which we find at the end of page 51, "Does that fit with
3 your memory of what that says," although not very clearly we have --
4 now -- I think everyone has now moved around two issues. The first one is
5 whether the newspaper reflects what was in the communique, and then
6 another matter, whether what is in the communique and therefore in the
7 newspaper article, whether that reflects what happened.
8 MR. EMMERSON: Exactly.
9 JUDGE ORIE: I take it you are aware, Mr. Kearney, that these two
10 issues are on our table and that we clearly make a distinction between the
12 MR. KEARNEY: I am, and perhaps to assist the Trial Chambers and
13 my colleague, I'll be -- I'll refer to one particular document and ask
14 questions about that. This will be annex number 3, which is 65 ter
15 Exhibit 1346, again at page 17 in the English.
16 MR. EMMERSON: I'm --
17 JUDGE ORIE: Yes.
18 MR. EMMERSON: Sorry to press, but just to be absolutely clear,
19 the statement that is in this witness's evidence that refers to annex 5
20 deals with the first of those two propositions, whereas annex 3, I accept,
21 is a statement that deals with the second.
22 JUDGE ORIE: Yes. I have not yet looked at 3, but as far as 5 is
23 concerned that seems to be the case.
24 MR. KEARNEY:
25 Q. Mr. Krasniqi, do you have annex 3 in front of you, sir, in a
1 language you can understand?
2 A. Yes.
3 Q. This was an article published in the Pristina Kosovo Daily Report
4 on 20 October 1997; is that correct, sir?
5 A. Yes.
6 Q. In your statement of last week you say the following words, and
7 please tell us if these are accurate or not: "The actions described in
8 the document did occur at the time and were carried out by the operative
9 wing of the UCK. The report accurately reflects the information given by
10 the UCK to the media."
11 I want to ask you if those two sentences are correct as well?
12 A. Yes, they're correct.
13 Q. My question, Mr. Krasniqi, is: How do you know that those actions
14 actually occurred, the ones that are reflected in that document?
15 A. I think that this is a superfluous question. I lived in Kosovo.
16 I followed all the political events and other events that occurred in
17 Kosovo, and how could I not know? I also am a close relative of
18 Ardijan Krasniqi, who was killed. I've also written a book that has this
19 information. I wrote a book on this period, so I know all these events as
20 a participant in the political occurrences in the -- in Kosovo in the
22 JUDGE ORIE: Mr. Krasniqi, the question was not superfluous, and
23 as a matter of fact you have not answered the question. The question is:
24 Where did you get your knowledge from about these or this event happening?
25 Even politicians hear, see, read, from whatever source. That's what
1 Mr. Kearney would like to know: How do you know that this event took
2 place? And you could not refer to your general knowledge as a politician,
3 but on the specific event Mr. Kearney would like to know where you got the
4 information from.
5 MR. EMMERSON: I do apologise again and I do very much appreciate
6 Your Honour's question, but if it's to be answered then the witness needs
7 to be directed to a specific event. And what happens with a number of
8 these communiques is that they are a melange of different incidents and --
9 JUDGE ORIE: Yes. At the same time, I take it that at this moment
10 the witness has the original of this on his screen before him.
11 MR. EMMERSON: Yes.
12 JUDGE ORIE: So -- of course I have not seen that. If there are
13 more events there, then the first question would be about all the events I
14 take it, whatever is described as we find in his 65 ter statement. The
15 actions, plural, described in the document did occur at the time, and the
16 question by Mr. Kearney is: How did you know about these events, that is,
17 more than one, took place.
18 Could you please answer the question.
19 THE WITNESS: [Interpretation] All these events that are described
20 in the document I learned about them from the media. The press, radio,
22 JUDGE ORIE: Yes.
23 Please proceed, Mr. Kearney.
24 MR. KEARNEY:
25 Q. Did you, while you were on the General Staff, Mr. Krasniqi, have
1 contact with KLA soldiers in the operational zones themselves?
2 A. What period are you referring to?
3 Q. 1997 and 1998.
4 A. Not in 1998.
5 THE INTERPRETER: In 1997, correction of the interpreter.
6 THE WITNESS: [Interpretation] But in 1998 I almost had daily
7 contacts with the soldiers and with the operational units of the KLA.
8 MR. KEARNEY:
9 Q. I want to refer you to the beginning part of annex number 3. I'm
10 going to read to you the first two sentences of that document.
11 "A clandestine group calling itself UCK has claimed
12 responsibility for a couple of attacks at the Serbian police stations and
13 a settlement of Slavic refugees. In communique faxed to the media, the
14 UCK said that it had carried out (without specifying the time) attacks
15 at 'Grlica of Ferizaj [Urosevac], Balince of Kline, Baballoq of Decan
16 [Decani], and Qellopek and Kliqine of Peje.'"
17 Now, first of all, am I accurately reading that sentence from
18 annex number 3?
19 A. Yes, the sentence is correct.
20 Q. Now, in your statement of last week you said that this report
21 accurately reflects information given by the UCK to the media. I want to
22 ask you: How did you learn about that -- those events, those attacks on
23 those police stations?
24 A. I will repeat what I said earlier. I learned all these from the
25 media, from the newspapers that published these events the next day, from
1 the radio, and also the Albanian television.
2 Q. Let me ask you a slightly different question. Was it the policy
3 of the KLA to target Serbian police -- to target Serbian police during
4 this period of 1999 and early 1998 up until March of 1998?
5 MR. EMMERSON: Sorry, I think Mr. Kearney misspoke himself. I
6 don't think he meant 1999 and early 1998 but 1997 and early 1998.
7 MR. KEARNEY: That is what I meant if I didn't say that, thanks to
8 my colleague.
9 JUDGE ORIE: Yes. It appears on the transcript.
10 Perhaps if you repeat your question, Mr. Kearney.
11 MR. KEARNEY: Yes.
12 Q. Was it the policy of the KLA to target Serbian police during 1997
13 and early 1998 up until March of 1998?
14 A. The Kosovo Liberation Army was formed just for this.
15 Q. So I assume, Mr. Krasniqi, that means yes; is that correct?
16 A. Yes, yes.
17 Q. And if you know, was that the practice in the Dukagjini Zone as
19 A. It was true for other zones as well, so it was true for the
20 Dukagjini Zone.
21 Q. Was it also the policy of the KLA to target civilians during this
22 same time-period?
23 A. Your Honour, I think I have explained this question in the Limaj
24 trial, and I will repeat again. The policy of the KLA was not directed
25 against civilians of any ethnicity. It was a policy that was directed
1 against the repressive apparatus of the Serb regime.
2 Q. Mr. Krasniqi, the reason I ask you that question is in annex
3 number 3, which you still have in front of you, at the end of the first
4 full paragraph it says that: "Attacks at the Serbian police stations and
5 a settlement of Slavic refugees."
6 And then later on, this is in the third paragraph, it refers to an
7 attack of "a settlement of Serb and Montenegrin refugees at Baballoq
8 village of Decan."
9 Do you see that in the statement, sir?
10 A. Yes, I see it, but this is not a paragraph from a Serb communique.
11 This is something that was reported by a foreign news agency, and I'm
12 repeating again; this was not the policy of the KLA, to attack civilians.
13 In this bundle of documents you have annex number 2 which says completely
14 an opposite thing to what this statement says here. This is, I repeat, a
15 statement from a news agency, a foreign news agency, and has nothing to do
16 with the KLA.
17 Q. Was there an attack on Slavic refugees in Baballoq -- in Baballoq?
18 A. There might have been.
19 Q. In fact, in your statement last week, referring to this same
20 annex, annex 3, you said that: "The report -- the report accurately
21 reflects information given by the UCK to the media."
22 Isn't that correct, Mr. Krasniqi?
23 A. I was speaking about the parts that are in inverted commas. I
24 never said then and I'm not saying now that the part that is quoted is
25 correct. I'm not speaking here about the accuracy of the foreign agency
1 and their statement. I cannot take that responsibility. And I think my
2 words are being misused here. I'm saying that the quoted parts have been
3 taken as accurate, but the comments that have come from other sources I
4 cannot testify to their accurateness. That was the policy of a certain
5 news agency that made that statement; it was not the policy of the KLA.
6 Q. When you were given a copy of annex 3 in Albanian to read, were
7 those statements included about the refugee camps in Baballoq in your
8 Albanian statement?
9 JUDGE ORIE: Mr. --
10 MR. EMMERSON: I'm sorry, I'm going to object at this stage if I
11 may, and could the witness remove his earphones before I do.
12 JUDGE ORIE: I'm not -- may I first ask you, Mr. Krasniqi, do you
13 understand English?
14 THE WITNESS: [Interpretation] No, I don't understand English.
15 JUDGE ORIE: Could you take off your earphones for a second,
16 Mr. Krasniqi.
17 Mr. Emmerson.
18 MR. EMMERSON: Your Honour, it's perfectly clear, as is the case
19 with a number of these exhibits which are newspaper reports of
20 communiques, that part of the newspaper report reflects the communique and
21 part of it reflects news reporting. And it's not the communiques
22 themselves that the Prosecution has exhibited but newspaper articles which
23 quote from them. And to take this example, in the second paragraph, there
24 is a quotation from the communique referring to a KLA attack on Baballoq.
25 Now, we've heard other evidence in this case that Baballoq was an area
1 where there was a settlement that at one time was used by refugees and at
2 other times was used by Serb forces. The comments that appear here which
3 seek to identify Baballoq as a refugee settlement as the target of the
4 attack are comments of the newspaper.
5 Now, with respect, this needs to be done with accuracy if we're to
6 establish the sources and knowledge of the sources, and what the witness
7 says in his statement in relation to this, Your Honour, sees it at -- in
8 relation to annex 3 is the actions described did occur and the report
9 accurately reflects the information given by the UCK to the media.
10 Well, the information given by the UCK to the media is that part
11 of the communique which is set out in the newspaper article. And this is
12 going to be a recurrent problem because of the way that this material is
13 being exhibited. This witness is being asked to give evidence about the
14 accuracy of sources that he didn't at the time have privy to, which have
15 been reported in newspapers as part of a composite article. And if
16 Mr. Kearney's going to make the point he needs to make it carefully and
17 accurately; otherwise, it's impossible to know and it wasn't, with
18 respect, made with the accuracy with which it should have been made in the
19 Limaj trial at all. Otherwise it's impossible for the Trial Chamber to
20 disentangle what this witness is really saying about the reliability of
21 the sources of the information on which he's being asked to comment.
22 MR. GUY-SMITH: And in addition, with regard to the specific issue
23 of the settlement at Baballoq, the information is that, "The Serb media
24 reported last week ..." And then it goes on.
25 MR. KEARNEY: And, Your Honour, my question to this witness was
1 very simple: Was this statement in his Albanian version of the document
2 and that was all. And I think that's a worthy area of inquiry of this
3 witness at this time.
4 MR. EMMERSON: It's not the question I'm objecting to, or the form
5 of it, it's the line of the questioning and the assumptions that underlie
7 JUDGE ORIE: Mr. Kearney, it's not the question as such, but
8 Mr. Emmerson has expressed some concerns. I could even add to that that
9 talking about issuing communiques, saying that we just issued communiques
10 on the basis of media sources, whereas at the same time these communiques,
11 as we find in the statement, served to inform the media, which brings a
12 bit of a circular. Therefore, I would endorse Mr. Emmerson's observations
13 that we should clearly distinguish between sources where the communiques
14 reflect what happened or what the sources said at that time. I'm not
15 saying that you're not doing that adequately, but it is a very sensitive
16 issue. If you are aware of that and since there was no objection against
17 the last question, please proceed. And then the witness, of course, in
18 order to hear the question, should put his earphones on again.
19 MR. KEARNEY:
20 Q. Mr. Krasniqi, I'm going to ask my last question again, sir. In
21 this document, this is annex number 3, in your Albanian version of that
22 document, is there mention of the attack on the refugee camp near
24 A. What is the question?
25 Q. In the annex that you have in front of you, annex number 3, in
1 your Albanian version of that document, is there a mention of the attack
2 on the refugee camp at Baballoq?
3 A. Yes, there is.
4 Q. Mr. Krasniqi, I'm just going to very briefly now go through with
5 you some of these annexes. I'm going to ask you if these were documents
6 or statements or communiques issued by the UCK General Staff. I'm going
7 to start with annex number 1. Was that a communication issued by the UCK
8 General Staff?
9 JUDGE ORIE: The English page 10, I do understand.
10 THE WITNESS: [Interpretation] Yes.
11 MR. KEARNEY:
12 Q. Same question for annex number 2, sir: Was that communique issued
13 by the UCK General Staff?
14 MR. HARVEY: Your Honour --
15 JUDGE ORIE: Yes, Mr. Harvey.
16 MR. HARVEY: Again, with respect, both to the previous question
17 and the present one, the question should be in the form: Is that a report
18 of a communique? We are not looking at a communique.
19 MR. KEARNEY: That's a valid point by Mr. Harvey. Thank you to my
20 colleague, and I'll rephrase the question.
21 JUDGE ORIE: Please do so.
22 MR. KEARNEY:
23 Q. Again referring you to annex number 2, Mr. Krasniqi, is that a
24 report of a communique made by the UCK General Staff to the media, in this
25 case Koha Ditore?
1 A. The report speaks of a KLA communique, yes. In other words, this
2 report was made or compiled on the basis of the text of the communique.
3 Q. And my question goes one step further: Was that communique issued
4 by the KLA General Staff?
5 A. I already stated that as long as these communiques bear the stamp
6 of the KLA, of course they came from the General Staff of the KLA.
7 Q. All right. Mr. Krasniqi, we've already talked about annex 3. I
8 want to move to annex 4 very briefly. This was a report carried by Tirana
9 TVSH television network on 24th November 1997. Was this based -- was this
10 report based on a communique issued by the KLA General Staff?
11 A. Yes.
12 Q. We've talked about number 5. Moving to annex number 6, this is an
13 article published in the Pristina newspaper Bujku on 8 January 1998. Is
14 this a report of a communique issued by the UCK General Staff?
15 A. Yes.
16 Q. Moving now to annex 7. This is another article printed in the
17 newspaper Bujku --
18 MR. HARVEY: Sorry --
19 JUDGE ORIE: Mr. Harvey.
20 MR. HARVEY: -- to interrupt yet again. I don't know whether the
21 witness draws a distinction between central staff and General Staff, but
22 it is certainly true that the previous report was of a communique
23 allegedly signed by the Central Staff.
24 JUDGE ORIE: Could you please verify that, Mr. Kearney.
25 MR. KEARNEY:
1 Q. Mr. Krasniqi, you just mentioned that regarding annex number 6
2 that was printed in Bujku, that it was a report reflecting a communique by
3 the UCK General Staff. I want to ask you: Is there a difference in your
4 mind between General Staff and Central Staff?
5 A. It is -- both terms refer to the same body or organ.
6 Q. Thank you for that. I want to move on now to annex number 7.
7 Again, this is an article in the Pristina newspaper Bujku. Is that a
8 report of a communique issued by the UCK General Staff?
9 A. Yes.
10 Q. I'm going to ask you the same question about annex number 8,
11 another newspaper article in Bujku. Is that a report of a communique made
12 by the UCK General Staff?
13 A. Yes.
14 Q. Same question as to number 9, please. This is yet another article
15 published in Bujku, this one 11 March 1998.
16 A. I would give you the same answer.
17 Q. Would your answer be the same for annex 10? This is a report
18 published in the Paris Agence France Presse on 11 March 1998, is a report
19 of a communique or a communication made by the KLA General Staff?
20 A. Yes, the report is based on a KLA General Staff communique.
21 Q. In fact, Mr. Krasniqi, without going through annexes 11 through
22 19, we certainly can individually, but as you said in your statement last
23 week, aren't they all media reports of communications made by the KLA
24 General Staff?
25 A. I have already confirmed this about the communiques, that they
1 were of political nature, in the Limaj trial I've said this. I've said
2 this two or three days ago and I'm repeating myself now.
3 Q. And we understand that. My question is very simply: These were
4 based on communications made by the KLA General Staff, were they not?
5 A. Yes.
6 MR. GUY-SMITH: As a matter of fact, I believe that Mr. Kearney is
7 mis -- is in a certain number of regards misstating the very information
8 upon which he's relying in the annexes.
9 MR. KEARNEY: Your Honour, I believe the answer's clear. I'm
10 ready to move on to a different topic.
11 JUDGE ORIE: Yes. Well, there comes a question to my mind at this
13 Mr. Krasniqi, you have at various occasions now said that it was
14 propaganda, it was of a political nature, et cetera. Do you intend to say
15 that whatever may have been in these communiques might well be not true?
16 Is that your message or not? I mean, we are going around what seems to be
17 the real issue. Are you saying that these communiques -- well, they were
18 issued, but political, propaganda, so therefore whether true or not is --
19 could certainly not accept them to reflect the truth. Is that what you
20 want to say? Then it becomes clear to us.
21 THE WITNESS: [Interpretation] Your Honour, I would say the
22 following. The events as such are not a propaganda. They occurred and
23 cannot be eradicated, but having in mind the level of organisation of the
24 leadership of the KLA General Staff, they contain more than what was there
25 in reality. The purpose was to make the Albanian people in Kosova think
1 that the KLA is a well-organised army. So whenever we speak of KLA
2 General Staff and other levels of organisation, much more was said in the
3 communiques as means of propaganda. Your Honour, you may well be aware of
4 the fact that propaganda is used in modern times as well by modern armies
5 as well, and when I say "modern armies," I refer to armies that are
6 well-organised and have a long tradition of organisation which operate in
7 much more sophisticated conditions.
8 JUDGE ORIE: Yes. So therefore, if I understand you well, if a
9 communique says something about a KLA attack on a police station, then
10 what you would say is that will have taken place, but in interpreting this
11 information don't think that it also means that the KLA was a
12 well-organised armed force, but that we should cautiously interpret this
13 action, this KLA action, which consisted of an attack on a police station.
14 Is that the message you give us?
15 THE WITNESS: [Interpretation] That's correct.
16 JUDGE ORIE: Please proceed, Mr. Kearney.
17 MR. EMMERSON: I'm just anxious that -- there is a follow-on
18 question which is then: What is the basis of the witness's knowledge.
19 JUDGE ORIE: That's fine. You can put that question to the
20 witness at a later stage. We have already tried to explore that and I do
21 agree with you that that's not in every respect, for the full hundred per
22 cent, clear but parties can explore that.
23 Mr. Kearney, please proceed.
24 MR. KEARNEY:
25 Q. Mr. Krasniqi, I want to move on to a different topic for a moment
1 regarding crimes committed by KLA soldiers, if they occurred or not. I
2 want to ask you: Did any of the different zones, the subzones, in 1998
3 report crimes having been committed by individual KLA soldiers to the
4 General Staff?
5 MR. HARVEY: Your Honours, I don't know whether Mr. Kearney means
6 to throw in the entirety of 1998 or whether he wants to break it down at
7 all. This question appears to me to be rather broad, with respect.
8 JUDGE ORIE: As the witness did before, sometimes we can wait and
9 see whether the witness makes any further specification as far as time is
10 concerned. Say, to the extent you are asking about the first then -- so
11 therefore we should give an opportunity to Mr. Kearney to generate a flow
12 of evidence, and if it -- matters remain unclear, we'll certainly clarify
13 them but I'd like to have the interventions and the objections reduced.
14 Mr. Kearney, at the same time, the Defence is seeking precision
15 which I would certainly not discourage you to find. Please proceed.
16 MR. KEARNEY: Thank you.
17 Q. And as a foundational matter I'm going to ask the same question,
18 Mr. Krasniqi, again. In 1998, were any crimes reported to the General
19 Staff from any of the subzones regarding actions committed by KLA
21 A. First of all, I believe that the KLA members did not commit
22 crimes, even if they wanted to, certainly there were no conditions and
23 means for them to carry out crimes. In the second statement --
24 JUDGE ORIE: Mr. Krasniqi, I'm going to stop you here. The
25 question was not whether you believed that crimes were committed. The
1 question simply was whether any -- in 1998, were any crimes reported to
2 the General Staff from any of the subzones regarding actions committed by
3 KLA soldiers. So what Mr. Kearney wants to know is whether the General
4 Staff received such reports. True or not is another question, but that's
5 the question, and not whether you believe that crimes were committed,
6 could have been committed. Please answer the question.
7 THE WITNESS: [Interpretation] The General Staff never received
8 information regarding any crime possibly committed during the war period.
9 MR. KEARNEY:
10 Q. Did the General Staff have a system in place for disciplining KLA
11 soldiers in 1998 if there had been a crime reported to the General Staff?
12 A. The General Staff did not receive such reports and neither had the
13 proper, appropriate mechanisms to undertake measures for something like
15 Q. Was the disciplining of soldiers the responsibility of subzone
16 commanders during 1998?
17 A. The responsibility in the way we were organised was quite
18 difficult to be taken upon by the commander of the zone, because every
19 zone was divided in physical terms because the largest part of Kosova was
20 occupied by the Serbian police and military forces. And in many zones,
21 the units acted separately. So there wasn't a proper organisation and
22 regular communication, so the possibility to discipline in the entire
23 space was impossible.
24 Q. Moving on now to my --
25 JUDGE ORIE: If you say "the entire space," are you referring to
1 zones or are you referring to the whole of the country?
2 THE WITNESS: [Interpretation] The whole Kosova was divided, and
3 the zones, as such, the KLA zones I mean, acted separately. For example,
4 there was a possibility for a battalion or a unit of the KLA to act
5 completely separately from another battalion or unit. This is a
6 well-known fact for that time.
7 JUDGE ORIE: And subzones, because the question was focusing on
9 THE WITNESS: [Interpretation] Kosova was divided into subzones in
10 the beginning, but as of November 1998 the subzones were named zones. So
11 we might mix up things when we say "subzones" and "zones," but in fact
12 they refer to the same thing.
13 JUDGE ORIE: Please proceed, Mr. Kearney -- by the way, I'm
14 looking at the clock. If you could find a suitable moment somewhere in
15 the next five minutes for a break.
16 MR. KEARNEY: This actually is a good time, Your Honour. I'm
17 moving into my last topic.
18 JUDGE ORIE: Yes.
19 Then we'll have a break, Mr. Krasniqi. We'll resume at five
20 minutes to 6.00.
21 --- Recess taken at 5.34 p.m.
22 --- On resuming at 6.01 p.m.
23 JUDGE ORIE: Mr. Kearney, please proceed.
24 MR. KEARNEY: Thank you, Your Honour.
25 Q. Mr. Krasniqi, I want to now move into the final topic that I want
1 to cover with you today, and that's the issue of collaborators. At
2 page -- before the break at page 68, line 15, when you were asked a
3 question by the Court you said the following: "The events as such are not
4 a propaganda. They occurred and cannot be eradicated." And I believe at
5 the time you were talking about attacks on Serbian police officers. I
6 want to ask you the same question about attacks on collaborators. Are the
7 attacks on collaborators that are mentioned throughout the annexes events
8 that actually occurred?
9 A. The events occurred.
10 Q. Mr. Krasniqi, was it the policy of the KLA to --
11 JUDGE ORIE: Mr. Kearney, you certainly will not have forgotten
12 what Mr. Emmerson said earlier, what's the source of the knowledge of
13 these events to have occurred. Please proceed.
14 MR. KEARNEY: In that regard, Your Honour, I will ask permission
15 to recall annex 5 which is 65 ter Exhibit 1346 to 24 -- between pages 24
16 and 25.
17 JUDGE ORIE: Yes. Madam Registrar.
18 MR. KEARNEY: Can we scroll down just a little bit,
19 Madam Registrar, to the sentence which begins: "On the evening of 28th
20 November," please. That's fine.
21 Q. Mr. Krasniqi, on -- in annex 5 there is the following quote. I
22 want to read it to you and I'm going to ask you if it's an event that
23 occurred and I'm going to ask you then what you base that knowledge on.
24 "On the evening of 28 November, Dalip Dugolli, a collaborator and
25 one of Milosevic's most trusted men, was killed in the village of
1 Petreshice near Shtime."
2 First of all, did I read that correctly? Is that an accurate
3 quote from that document?
4 A. You read it correctly. I have answered this question several
5 times. I got the information about this case from the media, from
6 television, the radio, and the press.
7 Q. Did you talk with any units on the ground, any operational KLA
8 units, about this event?
9 A. I communicated with the units on the terrain after I was made
10 spokesperson of the General Staff of the KLA, and I took this position
11 after March 1998. I got my information from the media. I have nothing
12 else to add to this.
13 JUDGE ORIE: Yes. Mr. --
14 MR. EMMERSON: I'm hesitating. I wonder if the witness might
15 repeat the date on which he took the position, because I'm slightly
16 concerned there may have been a translation error.
17 JUDGE ORIE: Mr. -- Well, I could -- our transcript reads that you
18 took the position as spokesperson of the General Staff after March of
19 1998; is that correct?
20 THE WITNESS: [Interpretation] It was on the 10th of June, 1998,
21 and it was published in the media on the 12th of June, 1998.
22 JUDGE ORIE: Yes. I would have one other question for you in
23 relation to the document just shown to you, that was annex 5. You
24 said: "I learned this from the media."
25 Do you know how those who prepared the communique learned about
1 the armed attacks described in that communique?
2 THE WITNESS: [Interpretation] Where they got the information from,
3 I don't know.
4 JUDGE ORIE: At later stages I take it that -- when you had become
5 spokesperson, do you know such a communique of this kind describing
6 operations by units or forces of the KLA, would such information be sent
7 to the General Staff by the forces or units that were involved in this
8 type of activity, that's when you had taken that position?
9 THE WITNESS: [Interpretation] After I became spokesperson, the
10 information came to the General Staff from the operational zones, but also
11 from the various units that acted separately from these zones, mainly by
12 satellite telephone that we were using at the time.
13 JUDGE ORIE: Yes. So therefore, in your experience, the source of
14 knowledge came, to say it, from the ground?
15 THE WITNESS: [Interpretation] Generally, the source of information
16 came from the ground.
17 JUDGE ORIE: Thank you.
18 Please proceed, Mr. Kearney.
19 MR. KEARNEY:
20 Q. In this particular document, Mr. Krasniqi, in the first line it
21 says: "A fax reached our office yesterday containing communique number 40
22 of the Kosovo Liberation Army and signed by the 'Central Staff of the
23 UCK.'" ?
24 First of all, do you see that in your document?
25 A. Are you asking me if I see it in English?
1 Q. No. I'm asking you to look at annex number 5 --
2 JUDGE ORIE: In your --
3 MR. KEARNEY:
4 Q. -- in your packet there. Please look at the first line of that
5 document in the Albanian that you have in front of you.
6 A. Yes, yes. Oh, there it is.
7 Q. And as you look at that, I'd like to read you the sentence again.
8 This is an article published in Pristina Bujku on 5 December 1997. The
9 first sentence reads:
10 "A fax reached our editorial office yesterday containing
11 communique number 40 of the Kosovo Liberation Army and signed by the
12 'Central Staff of the UCK.' The communique states: 'By a decision of
13 the Central Staff, armed units of the UCK continued their liberation
14 operations during November.'"
15 First of all, is that an accurate translation?
16 A. Yes, it's an accurate translation.
17 Q. Sir, do you have any reason to doubt that that informing was
18 communicated to Pristina Bujku by the Central Staff of the KLA?
19 A. Of course, at the time somebody designated by the General Staff of
20 the KLA has sent this to Bujku or other press bodies. And because there
21 has been no opposition or contradiction to this, I don't think that the
22 General Staff can deny that this was from the General Staff.
23 Q. And you stated earlier in your 92 ter statement that you believed
24 this information to be accurate. Is that a fair statement?
25 A. I stand by it, yes.
1 Q. For instance, in the second full paragraph when it talks about a
2 hand-grenade attack being carried out on 11 November against the house of
3 Tomcic --
4 MR. EMMERSON: I'm sorry --
5 JUDGE ORIE: Mr. Emmerson --
6 MR. EMMERSON: -- I do apologise.
7 JUDGE ORIE: One second. Mr. Emmerson, I was about to ask
8 Mr. Kearney about his reference to the 92 ter statement, which says
9 that "The contents of the article are an accurate reflection of this
10 communique as issued by the UCK General Staff."
11 Mr. Kearney, if you refer to the 92 ter statement saying that you
12 believed this information to be accurate, that is not very clear, unless
13 there's any other line you could draw our attention to.
14 MR. KEARNEY: I can Your Honour. This is -- and begging the
15 Court's pardon. This -- I was referring --
16 JUDGE ORIE: To --
17 MR. KEARNEY: -- an answer this witness gave in the Limaj trial.
18 This is 65 ter Exhibit 1349.
19 JUDGE ORIE: Yes. Well, then you were, therefore, referring to a
20 92 ter transcript rather than a statement, because as I said earlier we
21 have a transcript and a statement. If you could guide us to the
22 relevant --
23 MR. KEARNEY: I will, and first --
24 JUDGE ORIE: -- and has that received an exhibit number already,
25 Madam Registrar? The --
1 MR. KEARNEY: Your Honour, this is -- this is just two pages of
2 the transcript. I'm --
3 JUDGE ORIE: Yes.
4 MR. KEARNEY: -- It is not our intent to tender these two pages on
5 their own --
6 JUDGE ORIE: No, I do understand. But if it has a number then I
7 can easily look it up in e-court, that's the only thing, and if I have no
8 number yet, then for the Chamber at least it's more difficult.
9 [Trial Chamber and registrar confer]
10 JUDGE ORIE: I invited Madam Registrar to make sure that it's on
11 the screen so that we know exactly what we are talking about.
12 MR. KEARNEY: And if we could scroll down to -- this is page 3322,
13 to line 17, please. And the portion of the text I'm referring to, Your
14 Honour, goes into the next page.
15 MR. EMMERSON: May I make the point. Your Honour anticipated my
16 objection in relation to the 92 ter statement.
17 JUDGE ORIE: Yes.
18 MR. EMMERSON: If, in fact, this is a reference to the 92 ter
19 transcript, it is bedeviled with the same flaw as all of the Limaj
20 references; namely, that once the witness is given an opportunity to
21 comment, there's no explanation or exploration --
22 JUDGE ORIE: That's why I wanted to look at it to see if we have a
23 better source there for -- otherwise, Madam Registrar, if the two pages
24 could be printed out for me so that I could have a look at it.
25 And you could continue meanwhile, Mr. Kearney.
1 MR. KEARNEY:
2 Q. Sir, in Exhibit Number 5 there are several specific attacks are
3 described. I just mentioned a hand-grenade attack which was carried
4 out --
5 JUDGE HOEPFEL: You are speaking of annex number 5, aren't you?
6 MR. KEARNEY: Yes.
7 Q. Further down in the document in a sentence beginning with: "On 26
8 November a special UCK unit attacked Golesh aerodrome. A Cessna 310
9 aeroplane was hit and brought down and five enemies were killed."
10 I want to ask you sir, first, if you believe that to be accurate.
11 JUDGE ORIE: And by "accurate," you mean that this event took
12 place as described here?
13 MR. KEARNEY: Yes.
14 JUDGE ORIE: Yes.
15 THE WITNESS: [Interpretation] The event occurred, but whether it
16 was a real attack I cannot say. This probably was to the service of the
17 propaganda war, and in proving the quality of organisation and attacks of
18 the KLA. I don't think that at the time the KLA had the weapons necessary
19 to bring down an aeroplane.
20 JUDGE ORIE: From what altitude was it brought down, Mr. Krasniqi?
21 THE WITNESS: [Interpretation] I don't know. I don't know. I know
22 that the plane came down, but whether it was as a result of an attack by
23 the KLA, I don't know. I don't think, I don't believe, that the aeroplane
24 could be brought down by the weapons of the KLA.
25 JUDGE ORIE: Again, what do you know about it? You say it took
1 place. What do you know about the incident? What did you learn even if
2 you haven't seen it?
3 THE WITNESS: [Interpretation] Well, I did not say, "attack". I
4 said, "the event happened". I do not live far from the place where this
5 aeroplane came down. I think that the aeroplane came down because of some
6 internal defect and not because it was attacked.
7 JUDGE ORIE: Have you seen the aeroplane?
8 THE WITNESS: [Interpretation] No, I haven't.
9 JUDGE ORIE: Nevertheless, you are positive in saying that --
10 you're very positive in saying the aeroplane came down?
11 THE WITNESS: [Interpretation] Yes, that's a fact, that the
12 aeroplane came down because it was in the media.
13 JUDGE ORIE: Were there pictures of the aeroplane in the media?
14 THE WITNESS: [Interpretation] I did not see any pictures.
15 JUDGE ORIE: But then stories about the event in the media?
16 THE WITNESS: [Interpretation] There were announcements in the
17 Albanian media, but also in the Serb media.
18 JUDGE ORIE: Yes. And now what makes you believe that it was a --
19 something else than described here that brought the aeroplane down?
20 THE WITNESS: [Interpretation] In order to bring an aeroplane down
21 you need to have sophisticated weapons, and the KLA did not have at its
22 disposal such weapons at the time.
23 JUDGE ORIE: Would you agree with me that it very much depends on
24 from what altitude an aeroplane is brought down? That it could make quite
25 a difference if it's from a thousand metres or from 40 metres or from 20
1 metres or 80 metres?
2 THE WITNESS: [Interpretation] I'm saying that this was in the
3 framework of the propaganda that we were carrying out at the time. It
4 helped to boost the morale of the KLA, and I think -- I'm not denying that
5 I would be happy if the KLA were able to bring that plane down.
6 JUDGE ORIE: Isn't it true that to qualify something as propaganda
7 rather than as a proper reporting of an event suggests that you know what
8 actually happened?
9 THE WITNESS: [Interpretation] I know the fact that the aeroplane
10 came down, but whether it was because of an attack of the KLA, I cannot
11 say that.
12 JUDGE ORIE: Yes.
13 Please proceed, Mr. Kearney.
14 MR. EMMERSON: Your Honour, I think, if I may respectfully say so,
15 we're reaching a point in this witness's evidence where we need to take
16 stock of the methodology in which it is being and is being elicited. And
17 I'd like, if I may, to make some submissions on how it ought to be being
18 elicited, because it's not simply about this particular point but whether
19 this witness is giving evidence about something he thinks was done by the
20 KLA, or something he thinks was not in fact done by the KLA, there is no
21 attempt being made to establish ultimately the basis of his knowledge.
22 Unless we are going to go through every incident in these communiques,
23 which as I understand it, the Prosecution are seeking through this witness
24 to tender as evidence of the truth of the facts that they report, some
25 systematic methodology needs to be adopted, applying the Trial Chamber's
1 own rulings about the approach to hearsay material before any proper
2 evaluation can be made, either about what is in the newspaper reports of
3 the communiques or about what this witness wishes to say about what he did
4 or didn't know about them.
5 [Trial Chamber confers]
6 JUDGE ORIE: Would you take off your earphones for a second.
7 The Chamber is not going to do any stock-taking at this moment.
8 It may be clear for the parties on the basis of objections, on the basis
9 of rulings on objections, on the basis of sometimes the Chamber actively
10 asking questions to the witness that the issue you raise has our full
11 attention to the extent that we would end up in a situation where
12 insufficient material is there to make a proper evaluation of the
13 testimony, of course the Chamber will -- will have to face such a
14 situation if that arises. And it's finally the Prosecution, to the best
15 of its abilities, to present its case.
16 MR. EMMERSON: Will Your Honour hear me for one moment on this?
17 JUDGE ORIE: Yes.
18 MR. EMMERSON: Because the way the Prosecution is seeking to
19 present its case involves resort to a transcript which has been admitted
20 under Rule 92, and Your Honour's just had printed out two pages of the
21 transcript which Mr. Kearney said he relied up --
22 JUDGE ORIE: Yes. Could we, perhaps so that I read the lines you
23 had page and line number, Mr. Kearney.
24 MR. KEARNEY: Yes, Your Honour. The passage begins on 3322 where
25 he's talking about this annex, this same document, the hand-grenade --
1 JUDGE ORIE: Could you give us -- could you give me the line --
2 MR. KEARNEY: Yes, it's line 17, it begins --
3 JUDGE ORIE: Line 17, if you would just give me a second to read
5 MR. EMMERSON: And over the page to the first two lines of the
6 following page.
7 JUDGE ORIE: Yes.
8 From what I see at this moment, Mr. Kearney, the witness testified
9 in Limaj that the event described there, that is, a hand-grenade attack
10 against the house of a certain person, did occur but that at least from
11 this part of the transcript it is difficult to know how the witness got to
12 know about this event. He just says it occurred as described.
13 MR. KEARNEY: And that was my intent exactly, Your Honours, to
14 present that statement to him that these events actually occurred and then
15 go on to ask him how he knows that. And we are, as the Court heard, this
16 witness is dissembling at some level about whether these events occurred
17 or not.
18 JUDGE ORIE: Let's -- I think the matter as such --
19 MR. EMMERSON: Can --
20 JUDGE ORIE: Yes, Mr. Emmerson.
21 MR. EMMERSON: Can I just take this one stage further. That
22 passage that Your Honour has seen and the fracture in the process of
23 reasoning that this Trial Chamber would adopt occurs between lines 2 and 3
24 on page 3323, where the matter is simply left as an assertion. That
25 methodology is the methodology that was adopted throughout the evidence in
1 chief in Limaj and was not the subject of cross-examination. Now, if the
2 position is - and we all understand it to be the position here - that it
3 is only those passages that the Prosecution elicits directly from this
4 witness and in respect of which the Prosecution establishes what the
5 factual basis for the witness's knowledge or lack of it is, that will be
6 adduced and relied upon in this case, then I'm very happy for Mr. Kearney
7 to continue as he proposes and to ask what was the basis for the knowledge
8 of that hand-grenade attack and that will then be a confined piece of
10 But if the Prosecution's position is that the assertions,
11 unchallenged as they were in Limaj, that when a witness says everything in
12 that communique as reported in fact occurred, is to be relied upon in any
13 way in these proceedings, then the question arises whether it is necessary
14 to go through each one of these communiques and establish by reference to
15 each factual assertion whether or not the witness is in the position to
16 give any kind of source material beyond saying it percolated up from the
17 ground which provides no basis for assessing reliability.
18 JUDGE ORIE: Well, he makes a distinction there between certain
19 periods, and for certain periods he says he learned it from the media,
20 this was reported in the media, and then of course the issue of what did
21 the media report and what information was given to the media arises.
22 MR. EMMERSON: I'm sorry --
23 JUDGE ORIE: Particularly -- I do understand, Mr. Emmerson, your
24 concern that the methodology of the Prosecution in presenting its case is
25 not perfect. That's of course --
1 MR. EMMERSON: It isn't that; it's that I need to know what case I
2 have to meet, and at the end of the day if it is clear that the only
3 passages on which the Prosecution will seek to rely are those of in
4 respect of whom, they have satisfied the Trial Chamber's own criteria for
5 determining what weight is to be attached to hearsay material, by
6 establishing the sources of the witness's knowledge, then I can sit down
7 because it will only be that which is on this transcript which is being
8 tendered as truth of the contents.
9 If on the other hand, the Prosecution is seeking to rely on
10 material that was generically put in evidence in Limaj with no proper
11 examination of sources as going to the truth of the contents then frankly
12 we need to examine all of it and establish what the basis of the witness's
13 knowledge is.
14 JUDGE ORIE: I'm afraid that the matter is a bit more complex.
15 It's not one or the other, but ...
16 [Trial Chamber confers]
17 JUDGE ORIE: Mr. Kearney, what is -- in the reports we can read
18 that. There is some testimony about the sources of knowledge of the
19 witness on whether these events have occurred or not. But it's not
20 abundant to say the least. General statements such as, I learned matters
21 from the press, of course, under the circumstances and in view of the
22 purposes of this might make it rather difficult for the Chamber to rely on
23 whether it's the present testimony or the Limaj testimony. It might even
24 lead to a situation where the Chamber would have to decide that it cannot
25 rely on the -- such general statements as given in the Limaj case, as we
1 have seen an example of until now.
2 Therefore, the Chamber urges you that if you want to -- if you
3 want the Chamber to rely on it to give it the strongest basis you can
4 find. Because otherwise it mainly is a report used in publications on
5 events described in the report and later on in the publications. Then
6 that's it.
7 MR. KEARNEY: Your Honour, if I can be heard just very briefly in
9 JUDGE ORIE: Yes, yes, I'm -- I should have given you an
10 opportunity, at the same time Mr. Harvey was -- yes.
11 MR. KEARNEY: What this witness has told us recently is that, for
12 instance, this communique was made by the General Staff to the media.
13 JUDGE ORIE: Yes.
14 MR. KEARNEY: And to say that he just learned things from the
15 media, well the General Staff, a body that he is a member of, is
16 communicating to the media this information which the media then
17 reproduces. So when this witness says, I learned about these things in
18 the media, by his own statement these -- this is information communicated
19 by the KLA General Staff to the media in the first place. So that's my
20 understanding of his testimony. So to say that the information that he
21 learns in the press is completely without basis, I believe --
22 JUDGE ORIE: I didn't say that --
23 MR. KEARNEY: -- with all due respect --
24 JUDGE ORIE: I didn't say that as a matter of fact. I didn't
25 say -- I urged you to give it the strongest basis possible. Which is not
1 exactly the same as what you just said.
2 The Chamber is not going to -- first of all, I'd like to give you
3 an opportunity to finish because I interrupted you.
4 MR. KEARNEY: I'm happy -- I'm not happy, but I'm completely
5 willing to go through 19 documents with this witness and go through fact
6 by fact because I think it's very clear -- at least it is to the
7 Prosecution, that there is reluctance on behalf of this witness to attest
8 to some of the things that perhaps he has in the past. I am very happy or
9 very willing to go through point by point in 19 documents to retrieve a
10 basis from this witness as to every fact averred in all of the documents.
11 I'm trying to pick out -- I realise that the Trial Chamber would probably
12 not grant me the time to do that. I'm trying efficiently to pick out
13 examples, namely, this one, annex number 5, where he said in no uncertain
14 terms in the Limaj testimony that the -- everything that is said here
15 really happened.
16 JUDGE ORIE: Yes.
17 MR. KEARNEY: I'm trying to use that as an example to the
18 Trial Chambers to show that this witness believes the events there to be
20 JUDGE ORIE: Yes. I think it -- it's -- that's not the issue,
21 whether the witness believes or not, but in order to properly evaluate
22 what the basis for this belief is. I mean, I do agree with you -- I do
23 understand what you are doing in relation to Limaj. There the witness
24 said, Yes, it happened. Now, what should the Chamber rely upon in view of
25 evaluating where what the witness says, which often comes down to, I
1 believe it happened, what that belief is based upon. I mean, for the
2 aeroplane now we have even some strong beliefs in different directions
3 that it would be propaganda. At the same time, you may have understood
4 from my line of questioning that to know what is propaganda you have to
5 know where the exaggeration is. And if you have to know where the
6 exaggeration is you have to know what really happened. So therefore, that
7 raises a few issues as well, but of course, the Limaj case doesn't add
8 much to what the witness testified here.
9 MR. KEARNEY: Well --
10 JUDGE ORIE: Apart from that at that time he also believed it
11 happened. At that time not examined on how he knew and I can imagine that
12 you say , let's take a few examples and see what happens. And you did it
13 on some of these -- well, it's then of course the next question is whether
14 the Chamber is willing at any time to draw inferences on the basis of
15 examples, that's -- Mr. Emmerson is already nodding no, so therefore he
16 tends to disagree with such a possibility.
17 But there of course is -- that is the issue. We see a document
18 which, as the witness says, he has -- that's at least how I understand it,
19 he has no reason to believe that the event described there did not take
20 place. That's how I -- at least how I understand if you say it takes
21 place, but if he hasn't been there himself. The more information the
22 Chamber has to rely upon to accept or not accept the statement that it
23 took place, of course the better the Chamber is placed to evaluate this
25 Of course, it's a matter of balance. I'm aware of that. Every
1 single detail or general knowledge.
2 Mr. Harvey, you were on your feet as well.
3 MR. HARVEY: I've been getting a lot of exercise over here,
4 Your Honour.
5 I'm troubled and it may be a cultural problem, although I don't
6 know that it is since Mr. Kearney and I have at least practiced on the
7 opposite side of the Atlantic as well. My understanding of the duty of a
8 Prosecutor before he calls his own witness a liar, is to explore at least
9 the basis for the -- for so doing. At page 83, line 10, Mr. Kearney
10 said: "And we are, as the Court heard, this witness is dissembling at
11 some level about whether these events occurred or not."
12 Your Honour, in plain English, the word "dissembling" means lying
13 and it seems to me to be at least a very hasty judgement to be making, and
14 I rise not merely to underscore the points that Your Honour has been
15 making yourself but out of fairness to the witness, out of fairness to
16 these proceedings which are being watched and are being listened to, that
17 this is a witness who is sitting here being traduced by the counsel who is
18 calling him and not -- and I hope he will be given by that same counsel an
19 opportunity to deal with the allegations that are being made, in my
20 submission, most unfairly against him at this stage in the case.
21 JUDGE ORIE: Whether unfairly or not, whether the words were
22 chosen with great care at that moment is another matter.
23 [Trial Chamber confers]
24 JUDGE ORIE: The Chamber, Mr. Kearney, takes it that you have
25 carefully listened to what I said and to what some Defence counsel said
1 and invites you to continue now your examination-in-chief. But taking
2 advantage of what has been said. The Chamber is not going to tell you
3 that you have to explore 19 documents, all the events, or not to do it, or
4 to try to get more general basis for the sources of knowledge. The
5 Chamber leaves that to you. Sufficient observations were made on what the
6 Chamber, the Defence, and perhaps the public will expect from the
9 MR. EMMERSON: May we, though, cease the examination of this
10 witness seven minutes to 7.00 so that I can seek guidance from Your Honour
11 as to how I should prepare my cross-examination with those rulings in
13 JUDGE ORIE: Yes. We'll reserve a couple of minutes before we
15 Mr. Kearney.
16 [Trial Chamber confers]
17 MR. KEARNEY:
18 Q. Mr. -- Put your headphones on --
19 JUDGE ORIE: Would you put your headphones on. Yes.
20 MR. KEARNEY:
21 Q. Mr. Krasniqi, when this communique was made, this is annex number
22 5, when this was made by the General Staff to Pristina Bujku, you were, in
23 fact, a member of the General Staff. Is that correct?
24 A. Yes, I was, and I've already explained this at our last meeting,
25 as well as in the testimony in the Limaj trial.
1 Q. Can you explain to us, please, what input the General Staff had in
2 forming these communiques to the media.
3 A. I will explain it yet again. We are talking about end of 1997.
4 It is true that the actions of the KLA intensified, but the headquarters
5 acted rarely and it was dispersed not in one place due to the clandestine
6 conditions. And we cannot say that this communication was consolidated.
7 Maybe in most of the cases the name of the staff was used, not that the
8 staff members communicated between each other. As I've already said, the
9 General Staff was divided into three parts. One part operated in very
10 difficult conditions and with limited number of staff in Albania --
11 THE INTERPRETER: In Kosovo, correction.
12 THE WITNESS: [Interpretation] -- another part in Albania, and
13 another part in western European countries, as in Switzerland, for
14 example. Kosova was encircled by the police and army of the Serbian
15 authorities. It was impossible under such conditions for it to exist in
16 that capacity. I wished that the KLA General Staff was of that type, that
17 would be the proper leadership body; but for that period of time, this was
18 quite impossible.
19 MR. KEARNEY:
20 Q. But this reporting of events that were taking place on the ground
21 in Kosovo, what segment of the General Staff was doing that reporting?
22 A. I've already stated that this was done by the operative units and
23 by the persons in charge of the operational part.
24 Q. For instance, this communique that we're looking at here, this is
25 annex 5, communique number 40, was this a communication with the media
1 made by an operational units?
2 A. As to who and how sent out the communique, I will again tell you
3 that I don't know, but as such the General Staff recognised this
4 communique as its own. So we took it as a communique of the General Staff
5 of the KLA.
6 Q. Mr. Krasniqi, perhaps that's not what I'm understanding. When you
7 say that the General Staff recognised this communique as its own, can you
8 explain that. Was it a -- did it adopt communications made by individual
9 units on the ground or something else?
10 A. You will receive the same answer from me. I've already explained
11 this. Depending on which unit a certain operation was carried out, that
12 unit designated a person who would inform the General Staff and then the
13 text of the communique was compiled on the basis of the information
15 Q. This communication from the individual units to the General Staff,
16 how was that made? Was it made by phone? Was it made by courier? How
17 was that made?
18 JUDGE ORIE: I think the question has been asked, Mr. Kearney,
19 isn't -- or am I wrong, and answered --
20 MR. KEARNEY: Your Honour, I don't believe so.
21 JUDGE ORIE: So we'll ask the witness to try to find out.
22 THE WITNESS: [Interpretation] I've already answered this question,
23 but I will answer it again. During this time, our main means of
24 communication was telephone. I've already told you, Mr. Prosecutor, that
25 the communication between the members of the KLA in Kosovo and with
1 representatives of KLA living outside of Kosovo was done through
2 telephone. This is what I told you during our meeting last week.
3 MR. KEARNEY:
4 Q. Mr. Krasniqi --
5 JUDGE ORIE: But this creates new confusion, Mr. Krasniqi. I
6 understood that this type of communiques as we have in front of us was
7 prepared by the KLA General Staff in Kosovo. So when we are talking about
8 communications between those on the ground providing, if they did,
9 information on the basis of which such a communique was given, then we are
10 not talking about -- primarily about communication between those on the
11 ground and General Staff outside Kosovo, but rather, General Staff inside
12 Kosovo. Would the communication with the General Staff who prepared such
13 communiques be similar, that is, by telephone?
14 THE WITNESS: [Interpretation] Yes, by telephone. I will explain
15 it once again. We are speaking of a time when my knowledge as to the way
16 these communiques were written are not clear. I've explained you about
17 the period when I was in charge of communication with the public opinion,
18 that I can be very accurate in what I say. So from that perspective as
19 how we communicated in the later period, I can comment on how it was done
20 earlier. So such a communique could be written by a representative
21 outside Kosovo, but on the basis of information collected from
22 representatives inside Kosovo.
23 JUDGE ORIE: Now, you have answered a few times a question by
24 saying this or that event which we find in a communique did happen. You
25 cannot eradicate that. That's, I think, the words you used. Now, taking
1 this example, annex 5, I do understand that you were then already a member
2 of the KLA General Staff. Apart from who drafted the communique, did you
3 learn as a member of the General Staff, even when not involved in drafting
4 communiques, about the events we now see were described in such
6 I mean, would you as a member of the General Staff, even if you
7 would have nothing to do with drafting any communique, would you learn
8 about what happened on the 11th of November or the 25th of November what
9 your units would have done at those dates?
10 THE WITNESS: [Interpretation] Your Honour, Kosova is a small area.
11 I was a political worker in Kosova. Of course I learned about these
12 events through other people who had heard about those events. I heard
13 about these events also through media, but also when we would meet with
14 other staff members, members of the General Staff I mean, we also
15 discussed how successful or unsuccessful these actions were.
16 JUDGE ORIE: Yes. In discussing that, did they, as far as you
17 know - if you don't know, please tell us - rely on information they
18 received from the ground, from the units?
19 THE WITNESS: [Interpretation] In the majority of cases, we learned
20 about those events from the information received from the ground. And in
21 my case, as I said earlier, in most of the cases I heard about those
22 events more quickly from the media than from the communication with other
23 members of the General Staff.
24 JUDGE ORIE: Yes.
25 Mr. Kearney, Mr. Emmerson asked for seven minutes. I'm aware that
1 there were frequent interventions by the Chamber.
2 Mr. Emmerson, may I take it that you would like to make your
3 submissions in the absence of the witness?
4 MR. EMMERSON: I certainly don't need the witness.
5 JUDGE ORIE: You certainly don't need the witness.
6 Then, Mr. Krasniqi, we have a procedural matter to be discussed
7 for a couple of minutes. We'll resume tomorrow in this same courtroom at
8 a quarter past 2.00. We'd like, therefore, to see you back tomorrow, and
9 I instruct you not to speak with anyone about the testimony you have given
10 until now and the testimony which still is to be given in the day or the
11 days to come.
12 Madam Usher, could you -- yes, Mr. --
13 MR. KEARNEY: Your Honour, before the Court releases this witness,
14 could the Court inquire if he actually brought with him copies of the
15 original communiques to The Hague or a book containing them, please.
16 JUDGE ORIE: Yes, I could ask him.
17 Do you -- did you bring -- you have heard the question put by
18 Mr. Kearney. Did you bring any of the original communiques to The Hague
19 or a book which contains such communiques?
20 THE WITNESS: [Interpretation] I didn't bring it with me, but I
21 gave the members of the OTP two books that I've written and a book with
22 the communiques issued by the KLA so that they would use the original
23 communiques and not foreign media or other organisation documents and
25 JUDGE ORIE: Mr. Kearney, of course in view of the answer, the
1 question surprises --
2 MR. EMMERSON: None of this has been disclosed. We had one
3 disclosure yesterday --
4 JUDGE ORIE: Yes. Let's first -- I mean, if Mr. Kearney asks
5 something of which the witness says I brought it already, then there is --
6 there may well be malcommunication, question could have been
7 misunderstood, or Mr. Kearney might have wanted to ask something
9 Mr. Kearney.
10 MR. KEARNEY: Could we just inquire of the witness who he actually
11 gave these books to. I don't have them, Your Honour.
12 JUDGE ORIE: Yes, we could ask the witness.
13 Mr. Krasniqi, to whom did you give the books you were just talking
14 about and when?
15 THE WITNESS: [Interpretation] The Prosecutor knows that these
16 books were submitted to one of his representatives in Pristina on Monday.
17 JUDGE ORIE: Well, that -- I take it, Mr. Kearney, that needs some
18 further inquiries.
19 MR. KEARNEY: I'll inquire this evening, Your Honour, and have an
20 answer for the Court tomorrow.
21 JUDGE ORIE: Yes.
22 Then, Madam Usher, could you escort the witness out of the
24 And the instruction stays as I said before, not to speak with
25 anyone about the testimony.
1 Mr. Emmerson.
2 MR. EMMERSON: Your Honour, whether dealing with media reports or
3 with original communiques, the problem remains the same. The communiques
4 might eliminate the confusion surrounding additional comment.
5 [The witness stands down]
6 MR. EMMERSON: But the ultimate problem remains the same, which is
7 that the Prosecution are seeking to tender the content of these
8 communiques as evidence of the truth of their contents. They contain --
9 essentially the evidence that's that has been given to Your Honours is
10 multiple hearsay; in other words, it's a witness saying, I've seen those
11 communiques, I did not draft them, I didn't even draft the ones that were
12 issued after I was appointed on the 11th of June because I was responsible
13 for political statements and the communiques contained military
14 information which was provided by the operational wing.
15 He was never asked in Limaj for the basis of the knowledge when he
16 made these sweeping assertions about the correctness of the contents, but
17 when asked before Your Honours repeatedly, we get a mixture of a response
18 that it is information that he learned from the media and a response that
19 it is information that percolated up from the grass roots, neither of
20 which provides any basis for assessing the reliability of the material as
21 evidence of the truth of its contents, which is a particularly difficult
22 problem when the witness asserts repeatedly, as he does, that the purpose
23 of the communiques, primarily, was propaganda; in other words, to distort.
24 And sorting out within a situation such as that what is truth and
25 reliable -- reliably sourced material from what is not is an extremely
1 difficult exercise.
2 Now, when I raised the matter earlier on - and this is -- the
3 reason I'm raising it now is it goes to cross-examination tomorrow. When
4 I raised the matter earlier on, I indicated that, provided it is clear,
5 that the only documents, the only statements, upon which the Prosecution
6 seeks to rely as being evidence of the truth of their contents are
7 statements about particular actions in respect of which the basis of the
8 witness's knowledge has been properly laid and explored before the
9 Tribunal, then I have no problem. But if, as, with respect, seems clearly
10 to be the case, the Prosecution here is proceeding as did the Prosecution
11 in Limaj on the fallacious assumption that by getting this witness to say
12 if it's written in the communique it must be true, that this Trial Chamber
13 will be able to evaluate and rely upon the contents, then that leaves me
14 in an impossible position.
15 It's not simply -- I'm trying to be practical about this rather
16 than doctrinaire. I appreciate some of these objections may sound as
17 though I'm nitpicking, but if Your Honour imagines the position that I
18 find myself in. Your Honour indicated on the transcript at page 88, line
19 17, that for Mr. Kearney essentially to select either between particular
20 passages or between all of those on which he wished to rely was a matter
21 of balance, but Your Honour, for the Defence it's not a matter of balance,
22 it's a matter of fairness. We are entitled to know which of these factual
23 assertions we need properly to challenge and the basis for them. Now, it
24 is for the Prosecution to identify those facts it relies upon and to
25 establish the basis for them. And I can't very well go into
1 cross-examination on the general assumption that if the Prosecution hasn't
2 laid a foundation I don't need to deal with it unless it is clear that
3 that is the basis upon which we are proceeding.
4 JUDGE ORIE: Mr. Kearney, if you would like to respond you have
5 got two minutes to do so.
6 MR. KEARNEY: Your Honour, this approach places the Defence in
7 anything but an impossible position. All the Defence has to do on
8 cross-examination is inquire of the witness how he knows certain things.
9 We just heard from this witness that - and this is something I want to
10 pursue with him tomorrow more - that forces on the ground and units who
11 conducted the operations contacted the General Staff and conveyed
12 information to the General Staff about the operations themselves. And
13 these -- this data is part of what went into the communiques. I believe
14 there is sufficient reliability there for the Trial Chamber to place
15 weight on those events occurring, as this witness himself told us, he
16 believes that the events themselves as described actually occurred and
17 there was a propaganda component as well. However, to simply throw out
18 all these communiques as the Defence seems to be suggesting without
19 further inquiry I think is improper at this stage.
20 [Trial Chamber confers]
21 JUDGE ORIE: Yes. I've briefly consulted with my colleagues. I
22 think the -- the issue is clear enough. The less we know about the source
23 of knowledge or belief or -- of the witness in relation to what we find in
24 these documents, of course the more corroboration of another type you
25 would need to give - I'm not saying any weight at all, but to give more
1 than relatively small weight to this material. The Chamber cannot
2 anticipate on what corroboration there still will be. So therefore,
3 although I do understand the concerns that come up in the mind of Defence
4 counsel, they nevertheless have to cope with that situation and have to
5 cross-examine the witness on the basis of the evidence that the witness
6 until now gave.
7 MR. EMMERSON: Your Honour, I entirely understand. Corroboration,
8 of course, is an entirely separate question.
9 JUDGE ORIE: And whether from here or from another, and therefore
10 the Chamber cannot anticipate and say this is how we will use it.
11 MR. EMMERSON: No --
12 JUDGE ORIE: The Chamber at the end of the case will look at the
13 totality of the evidence and we'll also look at the totality of the
14 evidence the Defence will take.
15 Therefore, I at -- I -- my reputation is bad already going over
16 7.00. Anything that can wait until tomorrow should wait until tomorrow.
17 We will resume quarter past 2.00, Courtroom I, tomorrow.
18 --- Whereupon the hearing adjourned at 7.06 p.m.,
19 to be reconvened on Wednesday, the 30th day of
20 May, 2007, at 2.15 p.m.