Tribunal Criminal Tribunal for the Former Yugoslavia

Page 332

 1                           Monday, 22 August 2011

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.06 a.m.

 5             JUDGE MOLOTO:  Good morning to everybody in and around the

 6     courtroom.

 7             Madam Registrar, would you please call the case.

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

 9     IT-04-84bis-T, the Prosecutor versus Ramush Haradinaj, Idriz Balaj, and

10     Lahi Brahimaj.

11             JUDGE MOLOTO:  Thank you so much.

12             Could we have appearances for the day, starting with the

13     Prosecution.

14             MR. ROGERS:  Yes, good morning, Your Honours.  Paul Rogers

15     appearing on behalf of the Prosecution, together with Ms. Priya Gopalan

16     and our case manager today, Ms. Line Pedersen.

17             JUDGE MOLOTO:  Thank you.

18             For the Defence.

19             MR. EMMERSON:  Ben Emmerson, Your Honours, for Ramush Haradinaj,

20     together with Mr. Rod Dixon, Ms. Annie O'Reilly, and Mr. Andrew Strong.

21             JUDGE MOLOTO:  Thank you so much, Mr. Emmerson.

22             And for Mr. Balaj.

23             MR. GUY-SMITH:  Gregor Guy-Smith, good morning, Your Honours,

24     along with Colleen Rohan, Chad Mair, and Gentian Zyberi continues to be

25     with us.

Page 333

 1             JUDGE MOLOTO:  Thank you so much.

 2             For Mr. Brahimaj.

 3             MR. HARVEY:  Good morning, Your Honours, Richard Harvey for

 4     Mr. Brahimaj, with Mr. Paul Troop, Ms. Sophie Rigney, Mr. Luke Boenisch,

 5     and again assisted by Ms. Rudina Jasini.  Thank you.

 6             JUDGE MOLOTO:  Thank you so much, Mr. Harvey.

 7             Mr. Rogers.

 8             MR. ROGERS:  Your Honours, we call Shefqet Kabashi, please.

 9             MR. KARNAVAS:  May I be heard, Mr. President?

10             JUDGE MOLOTO:  [Microphone not activated]

11             MR. KARNAVAS:  May I be heard?

12             JUDGE MOLOTO:  You may be heard.

13             MR. KARNAVAS:  Well, as I understand it, my client is coming

14     with -- he was coming in with handcuffs.  I was going to make sure that

15     those handcuffs were removed.

16             JUDGE MOLOTO:  Thank you.

17                           [The witness entered court]

18             JUDGE MOLOTO:  May the witness please make the declaration.

19             THE WITNESS: [Interpretation] I solemnly declare that I shall

20     speak the truth, the whole truth, and nothing but the truth.

21                           WITNESS:  SHEFQET KABASHI

22                           [Witness answered through interpreter]

23             JUDGE MOLOTO:  Thank you very much.  You may be seated,

24     Mr. Kabashi.  Good morning to you.

25             Sorry, Mr. Kabashi, we are in court.  Can you please face the

Page 334

 1     front and don't communicate with the people in the gallery.

 2             Mr. Rogers.

 3             MR. ROGERS:  Yes, Your Honour.

 4                           Examination by Mr. Rogers:

 5        Q.   Good morning, Mr. Kabashi.  I see that you have your counsel

 6     present here with you this morning.  Is that something you would wish to

 7     remain, that Mr. Karnavas stays with you during the course of these

 8     proceedings this morning?

 9        A.   Yes, he may stay.

10        Q.   Yes.  Mr. Kabashi, could you give your full names to the Court,

11     please.

12        A.   Shefqet Kabashi.

13        Q.   And your date of birth?

14        A.   July the 1st, 1976.

15        Q.   And your place of birth, please.

16        A.   Zahaq, Peje, the Republic of Kosova.

17        Q.   Thank you.  And what is your ethnicity, if I may ask that

18     question, please?

19        A.   I think you know it.

20        Q.   Yes, I know it, but the Court needs to hear it from you.  It's

21     the process we have, Mr. Kabashi.  I have to ask you questions that don't

22     tell you what the answer is and the Court can then hear it.  So I do my

23     best.  It may seem strange, and I wonder if you could answer the

24     question.

25        A.   May the Honours ask that question?

Page 335

 1        Q.   May I lead, please, on this?  Defence?

 2             MR. EMMERSON:  I'm sorry, I've already indicated to Mr. Rogers

 3     that given the particular history of this witness I'm not happy to

 4     consent to any leading questions on any subject.

 5             MR. ROGERS:  Even on a simple question of ethnicity?

 6             MR. EMMERSON:  On any subject.

 7             MR. ROGERS:  I'm in Your Honours' hands.  Perhaps Your Honour

 8     would be kind enough to ask the question.

 9             JUDGE MOLOTO:  You are leading your witness.  The Chamber will

10     ask questions when it -- the Chamber is not going to be directed by a

11     witness or not on what procedure to follow.

12             MR. ROGERS:  I understand that, Your Honour.

13        Q.   Mr. Kabashi, are you Serbian?

14        A.   I am Albanian, but I have no reason to answer your questions and

15     you know why.

16        Q.   All right.  Mr. Kabashi, I want to ask you some questions,

17     please, about what happened in Kosovo in the municipalities of Peje and

18     in the surrounding municipalities in 1998.  Now, in the early part of

19     19 --

20             JUDGE MOLOTO:  Mr. Harvey?

21             MR. ROGERS:

22        Q.   In the early part of 1998, where were you?

23        A.   What time-period exactly?

24        Q.   Well, let me start with, let's say, March 1998.  Where were you

25     in March 1998?

Page 336

 1        A.   At home, in Zahaq.

 2        Q.   And did you stay in Zahaq in April 1998?

 3        A.   Yes, partly.

 4        Q.   Partly.  Where else did you go in April 1998?

 5        A.   May I know why you deem it so significant?

 6             JUDGE MOLOTO:  Mr. Kabashi.

 7             THE WITNESS:  Yes, sir.

 8             JUDGE MOLOTO:  You are here to answer the questions that the

 9     Prosecutor asks you.  It's not for you to ask him questions.  If you want

10     to ask him questions, wait until we take a break and you can discuss with

11     him outside court.  Okay?

12             MR. EMMERSON:  I'm sure Your Honour didn't intend to indicate

13     that the witness could discuss anything with prosecuting counsel outside

14     of court.  It may be that I misunderstood you.

15             JUDGE MOLOTO:  When he finishes testifying.

16             MR. EMMERSON:  Oh, I'm sorry, at the end of his evidence at a

17     whole.

18             MR. ROGERS:

19        Q.   Mr. Kabashi, I asked you whether you stayed in Zahaq in April

20     1998, where else did you go in April 1998?  Could you kindly answer my

21     question.

22        A.   I went to join the Kosova Liberation Army.

23        Q.   Thank you.  And may I ask, please, where it was that you went to

24     join the Kosovo Liberation Army.

25        A.   At Jabllanice.

Page 337

 1        Q.   And do you know the municipality in which Jabllanice is?

 2        A.   It belongs to the municipality of Gjakove.

 3        Q.   And are you able to help, please, with any other villages that

 4     are near to it so that we can orientate ourselves a little bit before I

 5     show you a map.

 6        A.   Your Honours, may the gentleman on the right ask no further

 7     questions because I've got no answers to give.

 8             MR. ROGERS:  Could the map e-court reference 03076 be -- please

 9     be put on to the screen.  Okay.

10        Q.   Mr. Kabashi, you can -- I can -- I hope you can see on a screen a

11     map that's rather small, but if we could just enlarge it, as is happening

12     here, you can see the town of Peje -- well, it's marked here as Pec, but

13     using the Albanian name Peje, you can see Peje there - that's enough of

14     the enlargement, thank you - you can see Peje.  And then if we can just

15     scroll the screen to the right and to show where Kline is, please.  You

16     see there the town of Kline.  You see that there, Mr. Kabashi?

17        A.   I wasn't very good at school.  I cannot read maps.

18        Q.   Ah-ha.  Can you read the name "Klina"?

19        A.   I can't see where it is.

20        Q.   Well, perhaps I don't know if there's a method whereby I can try

21     to point it out or we can just enlarge it further.  Perhaps we can just

22     enlarge it further.

23             Do you see Klina now, Mr. Kabashi?

24        A.   No.

25        Q.   You don't.  Well, I could come and physically point it out to you

Page 338

 1     or we could try to find another way to point it out.

 2             MR. ROGERS:  Perhaps if you could scroll the map to the left and

 3     see if we can find your own village, Zahaq.  Stop, please.

 4        Q.   Do you see towards the top of the map along the road which is the

 5     red line about a third of the way along a village marked Zahaq.  Can you

 6     see that?

 7        A.   No, I can't.

 8        Q.   All right.  You told us that you went to the village of

 9     Jabllanice.  Can you tell us, please, the date when it was that you went

10     to Jabllanice, approximately?

11             MR. EMMERSON:  I think the witness has already answered that

12     question.  My note is that he indicated that he went in April 1998 to

13     Jabllanice when he joined the KLA.

14             MR. ROGERS:  I asked the date, a more precise question.

15        Q.   Can you help us approximately with the date, please.

16        A.   I can't remember it.

17        Q.   Can you help, please, with whether it was towards the beginning

18     or the end of the month?

19        A.   In the middle.

20        Q.   Did you go with anybody else or did you go on your own?

21        A.   I went with my uncle's sons.

22        Q.   And are you able to tell us who they were?  Or do you have a

23     reason why you don't wish to say who they are?

24        A.   I went with Bashkim, my cousin, and then Jaha and Bashkimi after

25     he was wounded in Dubrava as a result of the NATO bombing.  After that,

Page 339

 1     he was wounded by a hand-grenade thrown by the Serbs in the Dubrava

 2     basement and he died after the war as a result of the injuries sustained

 3     there.  You didn't want to know about that, neither about those who have

 4     found their deaths there nor about the other 200 who also died in

 5     basements.  So how do you expect me to answer when at a time I was at the

 6     Dubrava prison, in the same room, in the same wing, as the one where I

 7     find myself now.  And now that I've been contained to this one, I have

 8     exactly the same memories.  I'm expecting the NATO planes to come and

 9     bomb at any time, but they won't.  I don't know what the frame of mind I

10     am in to be able to carry out these things and to think that it is okay.

11     Is there any force on earth to restrain you, to hold you accountable

12     about what you have done?  All you do is ask questions, answer -- and

13     say:  Answer, answer, answer.  Why?  Why should I answer?  What's the

14     goal?

15             JUDGE MOLOTO:  Control your witness, please.

16             MR. ROGERS:  Your Honour, yes, of course.  It may be important to

17     try to allow the witness to speak a little as -- in order to move on.  I

18     do understand Your Honour's point.

19             JUDGE MOLOTO:  But he must speak relevantly.

20             MR. ROGERS:  Your Honour, I entirely understand.  I think for

21     Mr. Kabashi this is relevant for him and important for him to say, and it

22     may assist us to move on if he is allowed to say what it is he feels a

23     little and then perhaps we can --

24             MR. EMMERSON:  I'm sorry, I --

25             MR. ROGERS:  But I move -- I'm going back to questions now.

Page 340

 1             MR. EMMERSON:  I'm sorry, I think if -- this is not a criticism

 2     in any way, but if Mr. Karnavas is consulting with Mr. Kabashi during his

 3     testimony, then I think we ought to perhaps have some understanding of

 4     what the parameters of that is now that he's begun his evidence.  I'm

 5     sorry, I don't mean to intrude upon it, but simply some understanding of

 6     what principles the Court is operating upon, if there is consultation

 7     taking place during testimony.

 8             MR. ROGERS:  Your Honours, I would agree.  I would suggest that

 9     if Mr. Kabashi wishes to speak with Mr. Karnavas, perhaps he could first

10     indicate that to Your Honours, and then Your Honours can determine

11     whether it is appropriate for him to speak with his counsel during the

12     course of his testimony.

13             MR. GUY-SMITH:  Well, if I might, Your Honour, and I don't know

14     what Mr. Karnavas's intentions are, but I do know having represented a

15     many a witness and many a witness in the setting of federal court and

16     state court in the United States, that there is more of an open flow as

17     between the attorney and the witness.  And considering that Mr. Karnavas

18     is not only representing him as a witness in this case but is also

19     representing him with regard to a case in which he has his own personal

20     criminal liability, I believe that he may have some legal understanding,

21     some legal concerns, that we may not be privy to.  I don't know.  I don't

22     know whether that's the case or not, but I rise because that is one of

23     the functions for counsel I would --

24             THE WITNESS: [Interpretation] I will tell you why --

25             JUDGE MOLOTO:  Mr. Kabashi --

Page 341

 1             THE WITNESS: [Interpretation] I may explain.  You and

 2     Mr. Emmerson and everybody, the money that he got for the Defence of the

 3     defendants would have been best spent somewhere in Kosova.  There would

 4     be no need for about 20 of you to be around the courtroom here.  You

 5     could have helped the homeless, people who were maimed, who lost their

 6     loved ones during the war.  I mean the millions that you have received.

 7     And there's no need for you to interrupt because I'm fully aware of what

 8     I'm saying.  I know that I'm innocent.  I've done nothing.  That's why I

 9     asked Their Honours to ask the questions because the Defence and the

10     Prosecution are the same.  You're a Defence lawyer today, you're a

11     Prosecutor tomorrow.  All you want to do is just earn some more money,

12     but you don't care at all about who was killed where over there, but that

13     is important enough for me.  I gave my evidence to KFOR, the Kosova

14     police -- yes, Your Honour.

15             JUDGE MOLOTO:  Yes, please.  Can I -- just one point.  When

16     somebody's speaking, we wait for him to finish.  We don't interrupt him.

17             THE WITNESS: [Interpretation] I was speaking when they

18     interrupted me.  If they have a right to interrupt me, do I not have the

19     same right?  So that I'm clear, if I don't have that right --

20             JUDGE MOLOTO:  He did not interrupt you.  We give each other a

21     chance to finish what we are saying, but we try also to speak relevantly

22     to the issues.

23             May I just mention to both you and Mr. Karnavas that when you do

24     want to chat, say -- consult, give an indication to the Bench that you do

25     want to do that and we'll give you that opportunity.

Page 342

 1             MR. ROGERS:

 2        Q.   Mr. Kabashi, can I just take you back, please, you were

 3     telling --

 4             THE WITNESS: [Interpretation] No, thank you.  I'm fine.

 5             JUDGE MOLOTO:  Thank you, Mr. Kabashi.

 6             THE WITNESS:  You're welcome.

 7             MR. ROGERS:

 8        Q.   Mr. Kabashi, can I just take you back, please, to April 1998 --

 9        A.   Mr. Rogers.

10        Q.   Yes?

11        A.   [In English] Get to the point what you want to know from me.  You

12     don't need to know my life.  You don't need to know where I went this

13     time and that time.  What you are interested to know?

14        Q.   What I know to know is what you saw, if anything, in Jabllanice

15     when you were there as a member of the KLA.  So when you first went

16     there, who did you speak to?

17        A.   [Interpretation] About what, for instance?

18        Q.   About when you joined the KLA, who did you speak to?

19        A.   I spoke to a number of people.

20        Q.   Could you name them?

21        A.   If you want.

22        Q.   Yes, please?

23        A.   It's a large number.

24        Q.   All right.  Start with the first one you spoke to about your

25     joining the KLA --

Page 343

 1        A.   I said it's a lot of people and maybe amongst them are people who

 2     would prefer to have their names withheld.  It's people who are not

 3     present here anyway.

 4        Q.   Why did you go to Jabllanice to join the KLA?

 5        A.   I do not know how to answer this question.

 6        Q.   Well, why did you go there and not anywhere else?

 7        A.   I went to join the army.

 8        Q.   Yes, why did you go there and not anywhere else?

 9        A.   Because my family's from there and I was more interested in that

10     particular territory because that's my origin, my family origin.  From

11     Zhabel which is the village nearby.

12        Q.   Do you know the village of Gllogjan, Catholic Gllogjan as I will

13     call it?

14        A.   Yes.

15        Q.   Is that -- that's also near Jabllanice, that you went to?

16        A.   Yes, I know -- I do know, but do you know?

17        Q.   When you first went there to join, was there anybody that you

18     understood was in charge of that group of the KLA there; and if so, who

19     was that person or persons?

20        A.   I said earlier, show me what your intention is.  What do you want

21     to know in particular?  Don't beat about the bush --

22             JUDGE MOLOTO:  Mr. Kabashi --

23             THE WITNESS: [Interpretation] -- because I am a simple person, I

24     am taken aback by things easily.  So maybe I will give you a wrong

25     answer.  So please tell me what your intention is.  I don't want to make

Page 344

 1     a mistake.  In fact, I don't know what mistake I have committed to be

 2     arrested, to be put in prison.  What have I done?  What have I done to

 3     you?

 4             MR. ROGERS:

 5        Q.   Mr. Kabashi, it was a simple question as to who you understood

 6     was in charge of the group of the KLA at Jabllanice when you reported

 7     there.  So I wonder if you could tell us who you understood was in charge

 8     at that time, and it may be more than one person.

 9        A.   Will you first tell me why I was imprisoned, why I was detained,

10     why am I sitting side by side with people accused of crimes?  I've seen

11     courage playing tennis.  I'm going there and sitting side by side with

12     the same people, and then you expect me to testify here before this Court

13     to say something.  How can I do that?

14        Q.   Mr. Kabashi, you asked me to get to the point and ask you some

15     direct questions, and I'm trying to do that.  And the direct question I

16     asked you was:  When you went to Jabllanice, who did you understand was

17     in charge of the KLA group in Jabllanice and it may be more than one

18     person.  So would you please answer that simple question.

19        A.   I have followed the proceedings of this Tribunal and all the

20     questions relate to one thing.  Do you want me to speak about the

21     Jabllanice detention centre or prison?  Don't beat about the bush.  Tell

22     me straight for what you want from me.

23        Q.   Thank you, Mr. Kabashi.  Tell us about the Jabllanice detention

24     centre or prison.  Where was it located?

25        A.   There was no prison in Jabllanice, and I can swear by that.

Page 345

 1        Q.   But it's your phrase, words, "prison, detention centre," what do

 2     you mean by that?

 3        A.   I said do you want to know about the Jabllanice prison?  Is that

 4     your intent?  You have asked me for the umpteenth time and you are asking

 5     me for the same thing.  I think the investigator has made a mess of it.

 6     I can't put some order in this mess created by you.

 7        Q.   Were there people detained at the Jabllanice barracks or place?

 8     Were people detained there where the KLA were?

 9        A.   I didn't see any prisoners there.  People came in and went out

10     very easily.  There was a guard at the gate of the staff.  Inside there

11     were no doors, there were no locks.  Many rooms didn't have any doors.  I

12     did -- I don't know that there was anything forbidden in the place.

13        Q.   What was your role there, Mr. Kabashi?

14        A.   I was a soldier.  I was maybe one of the few that remained a

15     soldier because the others became commanders.

16        Q.   And what did you do there in Jabllanice?

17        A.   Many things.  What do you want to know?

18        Q.   In particular, at the -- first of all, was there a place where

19     soldiers stayed together?  Was there a barracks?

20        A.   Yes, there were.

21        Q.   Where was the barracks located?

22        A.   In Jabllanice.

23        Q.   Whereabouts in Jabllanice was the barracks?

24        A.   There were three or four.  I don't know which one you want me to

25     answer about.

Page 346

 1        Q.   Mr. Kabashi, do you remember when you spoke to investigators that

 2     you drew some sketches?

 3        A.   Yes, I do.

 4        Q.   Do you remember signing those sketches when you were trying to

 5     explain about the location?

 6        A.   From last Thursday to today I have signed some 20 papers.  So, to

 7     tell you the truth, I don't know what is what --

 8        Q.   All right --

 9        A.   -- they tell me to sign and I sign.  It's the same thing that

10     happened to me with the Serbs, they told me, "Sign this because there is

11     no other way," and I was forced to do that.  The powerful can force you

12     to do things.

13        Q.   Can you look, please, at 03015 in e-court.

14             MR. EMMERSON:  Your Honour, I simply rise at this point because

15     obviously from a procedural point of view this is indistinguishable from

16     putting a witness statement to a witness.  The fact that the map that he

17     proposes to put to -- Mr. Rogers proposes to put to the witness is

18     graphic rather than the written word makes no difference because it is

19     part of the witness statement.  So if a witness's witness statement is

20     going to be used in chief, Mr. Rogers needs to make an application and

21     lay the foundation for doing that.

22             MR. ROGERS:  Your Honour, I think I just did lay the foundation

23     for doing it.  The foundation was that the witness agreed that he had

24     drawn some sketch maps during the course of his interviews, and I'm

25     showing what we say is one of them.  And the witness can comment upon it

Page 347

 1     or not as we go.  I think my learned friend knows well I have laid the

 2     foundation for this question.

 3             So perhaps the witness could please be shown 03 --

 4             THE WITNESS: [Interpretation] I didn't say yes that I did some

 5     sketches.  I have drawn these sketches, but I don't know your purpose in

 6     asking me these questions.

 7             MR. ROGERS:

 8        Q.   It will all become clear, Mr. Kabashi, don't worry.

 9        A.   [No interpretation].

10        Q.   Well, if you'll just look at it, first of all, please, and then

11     we'll take it one question at a time.  Now, if you would kindly look at

12     the document, 03015.

13             MR. ROGERS:  Is it on the screen?  Page 16, I think, in e-court.

14     Forgive me.  It's my fault.

15             JUDGE MOLOTO:  [Microphone not activated]

16             MR. ROGERS:  Yes, Your Honour, there we are.

17        Q.   Do you recognise that document, Mr. Kabashi?

18        A.   Yes, I do.

19        Q.   Is that something you drew?

20        A.   Yes.

21        Q.   And is it signed at the bottom by you?

22        A.   Yes.

23        Q.   And has it got words written on it by you?

24        A.   Yes, yes, of course.

25        Q.   Thank you.  Now, perhaps we can look at it.

Page 348

 1        A.   Ask the question.

 2        Q.   You can see there at marked E a place that you have called army

 3     barracks; is that right?

 4        A.   In point A you mean?

 5        Q.   E, E.

 6        A.   Yes.

 7        Q.   Yes.  Is that the place that was the barracks, as you've marked,

 8     in which people were detained; is that right?  First of all, is that the

 9     barracks that you referred to?

10        A.   Yes, that is the barracks, but there were no detainees there.

11        Q.   No.  Well, I want you to help me, if you would, please, with the

12     building, the square object, rectangular object, that is marked in the

13     centre of the compound.  Can you see that, first of all?  Do you see it,

14     yes or no?

15        A.   Which one?  There are many --

16        Q.   The rectangular one that is marked --

17        A.   -- rectangular facilities.

18        Q.   -- in the centre or near the centre of the compound.  Not the

19     ones that appear to be attached to walls, but the one that is standing

20     alone within the compound within the marked area.  You see that building?

21             JUDGE MOLOTO:  Mr. Rogers, when you say "within the compound,"

22     did you mean the place -- the picture marked E?

23             MR. ROGERS:  Yes, Your Honour, I do.  Thank you.

24        Q.   Within the picture marked E.  It was unclear.  You see that?

25        A.   Yes.

Page 349

 1        Q.   Thank you.  Do you see marked in the top left-hand corner of that

 2     building the letter H?

 3        A.   Yes.

 4        Q.   Do you see what you've written at the top of the page

 5     "H - Detention Centre."  What did you mean by that when you wrote

 6     "detention centre"?

 7        A.   I didn't write that word.  [In English] I never wrote there.

 8     That's not my writing.

 9        Q.   That's not your handwriting?

10        A.   No.

11        Q.   Whose handwriting is that?

12        A.   Probably one of your boys.

13        Q.   What do you say, then, about the room that is marked H as

14     detention centre?

15        A.   [Interpretation] It was not a detention centre.  I myself used to

16     sleep in that very room.  Several times I have slept there.

17        Q.   What was that building used for?

18        A.   For the soldiers.

19        Q.   And what else was it used for?

20        A.   To sleep there.

21        Q.   Can I show you some photographs, please.  First of all, can I

22     show you 65 ter 03054.

23             MR. ROGERS:  Your Honour, can -- could that -- the map actually

24     please be an exhibit?  Before I get to the photograph, could I please

25     exhibit there the map that has just been shown and identified by the

Page 350

 1     witness.

 2             JUDGE MOLOTO:  The map is admitted into evidence.

 3             May it please be given an exhibit number.

 4                           [Trial Chamber and Registrar confer]

 5             JUDGE MOLOTO:  Mr. Rogers, the Registrar correctly asks that

 6     there was -- states that there was a map and a sketch.  What is it that

 7     you are tendering into evidence?

 8             MR. ROGERS:  Sorry, forgive me, the sketch.  Just the sketch.

 9     The map we didn't get very far with.

10             THE REGISTRAR:  Your Honours, 65 ter 03015 will be Exhibit P118.

11             JUDGE MOLOTO:  Thank you so much.

12             MR. ROGERS:

13        Q.   Mr. Kabashi, could you look at this photograph, please.  Can you

14     tell me what it shows.

15        A.   You mean the photograph?

16        Q.   Yes.

17             MR. GUY-SMITH:  Excuse me.

18             JUDGE MOLOTO:  Yes, Mr. Guy-Smith.

19             MR. GUY-SMITH:  But as a matter of housekeeping, as I understand

20     it that is -- that particular 65 ter number includes the entire

21     statement.

22             MR. ROGERS:  I only want that one page.

23             MR. GUY-SMITH:  Okay.

24             MR. ROGERS:  I think that's just the one page that's been --

25             MR. GUY-SMITH:  Very well, I just want to double-check that it

Page 351

 1     was --

 2             MR. ROGERS:  I'm not intending to --

 3             MR. GUY-SMITH:  Fine.

 4             MR. ROGERS:  If anything else becomes relevant later, we'll deal

 5     with that later.

 6             JUDGE MOLOTO:  [Microphone not activated]

 7             MR. ROGERS:  Of which, Your Honour?

 8             JUDGE MOLOTO:  [Microphone not activated]

 9             MR. ROGERS:  The photograph, 03054.

10        Q.   Are you able to tell us, Mr. Kabashi, where this photograph is

11     taken?

12        A.   No, I don't recognise it.

13        Q.   You don't.  Have you seen it before?  Has this photograph been

14     shown to you before, Mr. Kabashi?

15        A.   I've seen many things.  I can't remember all.  I don't know.  I

16     don't remember.

17        Q.   Do you remember ever during the course of your interview with

18     investigators that you were shown a series of photographs?

19        A.   Yes, I was shown several photographs.

20        Q.   And, Mr. Kabashi, this photograph is identified in your statement

21     as one of those you were shown.  Now, I'd ask you to look at it again,

22     please, and help me with whether this is the place that you have

23     described as the barracks or have drawn on the sketch.

24             MR. GUY-SMITH:  Well, that's a -- that question is leading as

25     presently framed.

Page 352

 1             JUDGE MOLOTO:  [Microphone not activated]... Mr. Rogers.

 2             MR. ROGERS:  Well, he's drawn a picture, he's described going to

 3     a barracks, and I think he's entitled to say whether this photograph does

 4     or does not show that barracks.  He may say that.

 5             JUDGE MOLOTO:  Your question is still leading, Mr. Rogers.  A

 6     sketch is one thing, a photograph is another.  He can tell us what he

 7     knows about this photograph without you suggesting to him what the answer

 8     should be.

 9             MR. ROGERS:

10        Q.   What do you suggest -- are you able to help with where this

11     photograph was taken, Mr. Kabashi?

12        A.   I see a burned house here.

13        Q.   All right.  Well, I'll have to try it another way.

14        A.   It's not the same that I was in at that time.  It's different.

15     That was rather different from this.

16        Q.   How was it different?

17        A.   If you are asking me whether this is the place that I used to

18     stay, I'm saying that it doesn't seem the same place.

19        Q.   All right.

20        A.   It doesn't seem to me the same.  It's much different than the one

21     I was in.  So I can't say for sure that this is the place.  Since it's

22     not the same.  Many things there are not the same.

23        Q.   I understand that the -- it may be that the state of the

24     buildings is in a different state to when you remember it.  But I'm

25     asking you whether you recognise any part of it as being the place where

Page 353

 1     you stayed.

 2        A.   I told you earlier -- I gave you the answer as much as I could.

 3        Q.   All right.  You were shown this photograph together with others

 4     when you provided a statement in 2007 --

 5             MR. GUY-SMITH:  Excuse me.  I would request that Mr. Rogers

 6     refrain from testifying.

 7             MR. ROGERS:  Well, I can show the statement.  I'm getting to

 8     that.  It's just --

 9             MR. EMMERSON:  With respect, I don't think Mr. Rogers is entitled

10     to show the statement.  He needs to proceed according to the Rules and on

11     principle.

12             MR. ROGERS:  Yeah, the principle is of memory-refreshing in this

13     Tribunal.  The witness has repeatedly stated he is not sure, I can't

14     remember.  I want to show him the statement where he refers to these

15     specific photographs, and that seems to me to be admissible,

16     respectfully, course of action.

17             JUDGE MOLOTO:  Provided that we have admitted that statement

18     with -- because it has passed the admissibility standard.

19             MR. ROGERS:  I don't think I need to have the statement admitted,

20     respectfully, for it to be shown as a memory-refreshing document to the

21     witness.  Your Honour will recall that if we proceed down a particular

22     route where we may end up with this witness that I have to go through a

23     number of stages.  The first of which is to go through a

24     memory-refreshing stage.

25             All right.  It's 03016.  And it's paragraph 29 --

Page 354

 1             JUDGE MOLOTO:  Just before we go to that 03016, what are you

 2     doing with 03054?

 3             MR. ROGERS:  Your Honour, I'm just taking it off the screen for

 4     the moment.  The witness hasn't identified it.

 5             JUDGE MOLOTO:  Okay.  Thank you.

 6                           [Trial Chamber and Registrar confer]

 7             MR. ROGERS:  It's the same paragraph reference in the Albanian

 8     statement as well.  It's paragraph 29.

 9        Q.   First of all, before we move on, do you see your signatures on

10     the bottom of each of the page?  Is that your signature at the bottom

11     there, Mr. Kabashi?

12        A.   I said earlier yes, it is, and I said that ever since I came here

13     last Thursday I have given 20 or some signatures.  They've told me, "Sign

14     it," and I've signed it.  I know what this is about.  I've read it

15     several times, but there are many untrue things in this sentence -- in

16     this statement.

17        Q.   Let me just ask -- can I --

18        A.   But I think the investigator has made many mistakes, mistakes

19     which has even cost human lives.

20        Q.   Mr. Kabashi, just look at paragraph 29 of this statement that you

21     have signed both in Albanian and in English.  Can you see that?

22        A.   Sir --

23        Q.   Just read it to yourself.  When you've read it, tell me.  Have

24     you read it?

25        A.   What do you want me to say?

Page 355

 1        Q.   Have you read the paragraph?

 2        A.   Yes.

 3        Q.   Thank you.  You see there a series of photograph numbers referred

 4     to there and you said, paragraph 29, in the second line -- third line:

 5             "I have seen some photographs of the barracks.  These are

 6     identified by ERN numbers U0184-3082 [sic] ..." plus others.

 7             Do you see that?

 8        A.   Yes.

 9        Q.   The photograph that I have just shown you, e-court number 03054,

10     is the first of those listed photographs that you have described as the

11     barracks.  Now, does that help your memory?

12        A.   To remember what?

13        Q.   This is a photograph showing the barracks that you reported to in

14     Jabllanice.

15        A.   I told you even earlier what was discussed with the investigators

16     and then what happened afterwards for me to sign it.  It's not the same

17     stuff.  This has been elaborated, changed.  I told you that I have signed

18     many things.  I may sign a document that I killed Barack Obama, but now

19     nobody has killed him.  I told you earlier when I came out of that war,

20     when I came out of the prison in Dubrava, the Serbian prison, for me it

21     was the same, it amounted to the same thing.  And I have no regrets that

22     your investigators are even worse than the ones of the Serbs.  They beat

23     you up, but these ones here drain your blood slowly and this is what

24     happened not with me alone.  They are asking me whether I am afraid or

25     not.

Page 356

 1        Q.   Mr. Kabashi.

 2        A.   It's not a question of being afraid, Mr. Rogers.  You have to

 3     come to the point.  I'm trying to go to the crux of the problem, where

 4     the problem lies.  With your investigators, with your work, you are

 5     trying to make me speak about something which is not at all important

 6     regarding in the context of the war crimes committed there in Yugoslavia.

 7     If you are talking and if we are discussing about the crimes committed in

 8     Yugoslavia for which this Tribunal was set up, you've done nothing.  In

 9     fact, you have done more -- committed more crimes with your deeds and

10     everyone knows that.  If I am talking here -- if I am saying here

11     something that -- for which tomorrow you can accuse me, you can increase

12     the number of charges brought against me, you can put me in jail, but it

13     won't change my conviction what I know and what all the world knows, what

14     is a fact.

15        Q.   Mr. Kabashi.

16        A.   I don't know what --

17        Q.   Mr. Kabashi --

18        A.   Sir, sir --

19        Q.   Would you please allow me to ask my next question?  Thank you.

20        A.   I won't allow you to ask questions of me because what I've been

21     through, I don't know how I have put up with being here.  I don't know

22     how I am taking all of this and I am warning even the distinguished

23     honours coming from very different countries, I don't know who they are,

24     but please leave me in peace.  If you send me to prison, then don't ask

25     me any questions.  I might lose my mind, I might lose control of myself,

Page 357

 1     and then you can send me to jail again.  If you want me to speak dirty

 2     words, bad words, then I will do that; but if you want to allow me to

 3     testify as a normal human being, as God has made me, please allow.  Don't

 4     push me too much.  You have to acknowledge your mistakes.  I don't know

 5     who is going to try you.  I don't know if there is anyone that can try

 6     you.  Since you are trying me for what?  And putting me in jail?  And

 7     then you who have done so many crimes, nobody is judging you.

 8        Q.   Mr. Kabashi --

 9        A.   Is this Tribunal set up for war crimes?

10             MR. ROGERS:  Your Honour, it's clearly not going to be possible

11     to try to continue to answer questions at this precise moment in time.  I

12     would ask and invite Your Honours to adjourn briefly to allow the witness

13     to recompose himself and then he can come back.  Because I've tried

14     several times now to interject to control this, and I can't because the

15     witness won't stop now.  I would suggest we take a short break or if

16     Mr. Kabashi is sufficiently composed to deal with the next question, then

17     I will deal with the next question.

18             JUDGE MOLOTO:  How long do you want to take a break for?

19             MR. ROGERS:  Your Honour, if Mr. Kabashi is prepared to answer

20     the next question of him without ranting --

21             THE WITNESS: [Interpretation] I can ask you one further thing

22     because you are interrupting me continually.  Permit me to ask a single

23     question, please.  You're asking me about what happened at Jabllanice,

24     how many people were killed, how many were killed, five, six, ten?  Why

25     did you never, you, yourself, of your workers, why did you never ask us

Page 358

 1     about the 200 people who were killed, who were massacred, in the course

 2     of two or three days?  Who is the one who testified before The Hague

 3     Tribunal on the 200 killed at Dubrava, of the people killed in the

 4     basement where I was present, of the ones who were stabbed after being

 5     killed.  And I was hiding myself in the boilers in that basement but

 6     nobody is asking me to give any evidence of that because somebody else

 7     has said -- the others who were with me, however, my uncle's sons and the

 8     others, and I can give names, if you want, and none of them have been

 9     asked to come here to give evidence.  I can state here that there is no

10     justice at all.  Don't ask me to answer questions.  This is rubbish.

11     What you're dealing with is absolutely rubbish.  This money could have

12     been sent to Hollywood to make a good movie for the whole world to

13     understand what had occurred.  But everybody has lost their belief in

14     justice because of you in Kosova and in Bosnia, the two countries that

15     suffered the greatest losses in the course of the war.  And you are

16     mentioning here three or four people who have been killed there.  I'm not

17     defending those ones who have been committed, whoever has committed a

18     crime has to be held accountable, but there is no justice as I can see.

19     Take me into prison and keep me there if you like.

20             MR. ROGERS:

21        Q.   Mr. Kabashi, I'm going to take you back to the paragraph I just

22     showed you relating to the photographs, and in that --

23             JUDGE MOLOTO:  Just before you do that, have you abandoned your

24     request for a short break?

25             MR. ROGERS:  Yes, I'm just trying to move on.

Page 359

 1        Q.   Mr. Kabashi, you stated in that statement that you made signed

 2     in --

 3        A.   I didn't say anything.  It's not true --

 4             JUDGE MOLOTO:  [Previous translation continues]...  can we give

 5     Mr. Rogers a chance to finish his question, please.

 6             THE WITNESS:  I hear the question.

 7             JUDGE MOLOTO:  But he hasn't finished.  Mr. Kabashi, you stated

 8     that -- in that statement that you made and then you interrupted him.

 9     What is the question?  You interrupted him.  Look at the script -- the

10     transcript, his statement is incomplete.

11             MR. ROGERS:

12        Q.   The question was that in the statement you were referred you've

13     said:

14             "I have drawn a rough sketch of the location of different

15     buildings including the KLA HQ and the KLA barracks where people were

16     detained in Jablanica."

17             I want to ask you:  Were people detained in Jabllanice as you've

18     described in your statement?

19        A.   I didn't say that and I know nothing about it.  You are the ones

20     who ought to know, you are the ones who ought to have investigated, who

21     ought to have worked.  You didn't do your job and I have no idea why you

22     are pursuing it further and I plead with the honours --

23        Q.   Mr. Kabashi, do you know a man called Pal Krasniqi?

24        A.   Yes, I do.

25        Q.   And do you know a man called Skender Kuci?

Page 360

 1        A.   Yes, I know him too.

 2        Q.   And whilst you were in Jabllanice, did you ever see either of

 3     those men in Jabllanice?

 4        A.   No.  Skender Kuci used to be one of my neighbours, Pal used to

 5     work at Kline, he had a burger shop or a kebab shop.  As a young man I

 6     used to go out with his younger brother.

 7        Q.   Did you ever see them whilst you were at Jabllanice?

 8        A.   No.

 9        Q.   You didn't?

10        A.   [In English] No.

11        Q.   Never once?

12        A.   [Interpretation] How many times do I have to answer the same

13     question?

14        Q.   Mr. Kabashi, you testified under oath in this Tribunal in the

15     Limaj case and you testified about these events.

16             MR. EMMERSON:  Sorry, if Mr. Rogers is starting to cross-examine

17     his own witness, we need to move into a different phase of this

18     proceeding, and he needs to be in a position to lay a foundation for it.

19             MR. ROGERS:  I'm trying to lay the foundations.

20        Q.   Is it right that you testified in the Limaj case?

21        A.   Yes.

22        Q.   Is it right that you testified about both of these --

23             MR. EMMERSON:  I'm sorry, another problem, and for this we need

24     to go into private session.

25             JUDGE MOLOTO:  May the Chamber please move into private session.

Page 361

 1                           [Private session]

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25                           [Open session]

Page 362

 1             THE REGISTRAR:  We are in open session.

 2             JUDGE MOLOTO:  Thank you so much.  Take a break and come back at

 3     quarter to 11.00.  Court adjourned.

 4                           --- Recess taken at 10.07 a.m.

 5                           --- On resuming at 10.45 a.m.

 6             MR. EMMERSON:  Your Honour, it's at my request, Your Honour, that

 7     you've come in without Mr. Kabashi, and I would ask that we go into

 8     private session for a few moments.

 9             JUDGE MOLOTO:  May the Chamber please move into private session.

10                           [Private session]

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 363











11  Pages 363-377 redacted. Private session.















Page 378

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19                           [Open session]

20             THE REGISTRAR:  Your Honours, we are back in open session.

21             JUDGE MOLOTO:  Thank you so much.

22             Are there any further submissions the parties would like to make

23     in open session before we call the witness in?

24             MR. ROGERS:  Your Honours, yes, might I just have ten minutes to

25     check --

Page 379

 1             JUDGE MOLOTO:  Ten minutes?

 2             MR. ROGERS:  -- some material.  Yes, and then I will --

 3             JUDGE MOLOTO:  We will take a break for ten minutes and come

 4     back.

 5             MR. ROGERS:  Thank you.

 6             JUDGE MOLOTO:  Court adjourned.

 7                           --- Break taken at 11.16 a.m.

 8                           --- On resuming at 11.32 a.m.

 9             JUDGE MOLOTO:  Yes, Mr. Rogers.

10             MR. ROGERS:  Your Honours, thank you very much for that time.

11     We've been able to identify what I needed to identify, and I'm content

12     that the publicly available records reflect that which was submitted by

13     the Prosecution, as I anticipated it would, but I -- without seeing the

14     actual references, I couldn't check them myself, but there are a few and

15     I have and I'm grateful.

16             JUDGE MOLOTO:  Thank you so much, Mr. Rogers.

17             MR. ROGERS:  May the witness be re-called back into court.

18             JUDGE MOLOTO:  Thank you.

19             MR. ROGERS:  In fact, whilst the witness is being called, I just

20     need to make a small alteration to the transcript, if I may.  At page 41,

21     line 5, I inadvertently referred to the two individuals we may end up

22     speaking about as witnesses.  They're not witnesses, they're victims.

23     Perhaps the transcript reference could be corrected to show it as

24     victims, not witnesses.

25             JUDGE MOLOTO:  Thank you, Mr. Rogers.

Page 380

 1                           [The witness takes the stand]

 2             JUDGE MOLOTO:  You may be seated, Mr. Kabashi.

 3             THE WITNESS:  Thank you.

 4             JUDGE MOLOTO:  And may I just say to you, Mr. Kabashi, I'm sure

 5     you would like to go home as soon as you possibly can.  I will ask you to

 6     please listen carefully to the questions from Mr. Rogers, the Prosecutor,

 7     and try to stay focused on the question and answer just that question

 8     that he's asking you.  That way, we will finish quicker and you will be

 9     free to go home earlier than otherwise would be the case.  And I'm sure

10     his questions will be fairly straightforward.  If you know, you know; if

11     you don't know, you don't know.  May I just mention also perhaps

12     something we should have mentioned to you in the beginning, that if there

13     is any question that you feel uncomfortable answering and you feel it

14     might incriminate you, say to him:  I wish not to answer that question.

15     But don't go into a long explanation why you don't want to answer that

16     question, just very short answers.  Okay?

17             THE WITNESS: [Interpretation] Thank you.

18             JUDGE MOLOTO:  Thank you so much.

19             Mr. Rogers.

20             MR. ROGERS:

21        Q.   Mr. Kabashi, before the break I was asking you about whether you

22     knew two men, Pal Krasniqi and Skender Kuci.  And I was asking if you had

23     seen them at Jabllanice.  I want to clarify your answer and make sure I

24     understand what you are saying now.  Did you ever see either of those two

25     men at the Jabllanice barracks in 1998?

Page 381

 1        A.   I cannot answer this question.

 2        Q.   Why can't you answer the question?

 3        A.   I can't.

 4        Q.   Did you see them or was it that you don't wish to answer the

 5     question?

 6        A.   It's not that I don't wish, but I can't.

 7        Q.   Can you remember the events in 1998 at the barracks at Jabllanice

 8     involving these men?

 9        A.   No.

10        Q.   No.  Well, I wonder if you could have a look at your statement,

11     please.  It's 0301 -- 3016 --

12             MR. GUY-SMITH:  Excuse me, if I --

13             JUDGE MOLOTO:  Yes.

14             MR. GUY-SMITH:  -- might, Your Honour.  The manner in which this

15     question is going on I think is a bit curious, strange.  The gentleman's

16     asked twice whether he can answer a question, he responds that he cannot.

17     Thereafter, he's asked a slightly different question and then Mr. Rogers

18     is going to attempt to refresh his recollection, something that he's done

19     before.  And I think at some point in time there has to be a

20     determination of whether or not the witness can or cannot answer a

21     question.  If he wishes to refresh recollection, that's quite distinct

22     from the issue of whether he can or cannot answer a question.

23             JUDGE MOLOTO:  You started off by saying the manner in which this

24     question is asked is curious --

25             MR. GUY-SMITH:  Is a bit curious, strange --

Page 382

 1             JUDGE MOLOTO:  Are you objecting?

 2             MR. GUY-SMITH:  I am.

 3             JUDGE MOLOTO:  Or are you just telling us that it's curious?

 4             MR. GUY-SMITH:  I'm objecting.  And I'm objecting on the grounds

 5     that the question has been asked and answered now twice.

 6             JUDGE MOLOTO:  Sure, and because it's been asked and answered

 7     twice, counsel is trying to refresh the witness's memory.

 8             MR. GUY-SMITH:  Well, no, he said "I can't answer the question."

 9     I cannot answer the question.  Now, that has some significance, and with

10     regard to what the witness said precisely, he says:

11             "It's not that I don't wish, but I can't."

12             Now, he doesn't inquire any further into why he can't and I think

13     in the absence of getting an answer to that particular question, the

14     manner that this particular questioning is going on is improper.

15             JUDGE MOLOTO:  Mr. Rogers.

16                           [Trial Chamber confers]

17             JUDGE MOLOTO:  Any response to the objection?

18             MR. ROGERS:  Your Honour, yes, yes.

19             Your Honours, in my submission the stage has come where it's

20     proper to put to the witness what he may have said previously in his

21     statements to see whether the reason why he can't answer the question is

22     because he can't remember whether -- or maybe there is some other

23     explanation.  I attempted to elicit that, I hope, earlier by asking

24     whether he did not wish to answer the question.  But the purpose of

25     showing him the document is to see if he is able to refresh his memory

Page 383

 1     from that.  I can ask the witness -- I see Mr. Guy-Smith rises again.

 2        Q.   Mr. Kabashi, why can you not answer that question?

 3        A.   Which one?

 4        Q.   The question as to whether you saw Pal Krasniqi and Skender Kuci

 5     at the Jabllanice barracks in 1998.  Why can you not answer that

 6     question?

 7        A.   You were asking something else that has to do with the earlier

 8     statement.  I thought that was the question you were aiming at.

 9        Q.   Mr. Kabashi, you've told us that you didn't -- that you could not

10     see these or did not see these witnesses at the barracks in 1998.  I want

11     to ask you then about --

12             JUDGE MOLOTO:  That's actually not what he said.  He -- you said

13     to him:

14             "Can you remember the events in 1998 at the barracks in

15     Jabllanice involving these men?"

16             And he said:

17             "No, I cannot remember" -- I'm adding "I cannot remember," but

18     his answer was "no."

19             MR. ROGERS:  Your Honour, forgive me, I thought I asked earlier

20     whether he had seen the men at the barracks.

21             JUDGE MOLOTO:  You had asked that question.

22             MR. ROGERS:  Yes.

23             JUDGE MOLOTO:  And you said, Did you see them or was it that you

24     don't wish -- okay, It's not that I don't wish, but I can't.  And you

25     said, Can you remember the events?  That's when you then referred to a

Page 384

 1     statement and Mr. Guy-Smith stood up.  I was just telling you --

 2             MR. ROGERS:  Thank you.

 3             JUDGE MOLOTO:  -- the last question before the objection.

 4             MR. ROGERS:  Thank you.

 5        Q.   Mr. Kabashi, you recall making some statements to Prosecutors

 6     during the course of 2007 and before; is that right?

 7        A.   Yes, I do remember.

 8        Q.   And during the course of those statements, you referred to a

 9     number of events, do you remember, at Jabllanice barracks during 1998?

10        A.   Can you be more specific.  Which statement do you mean?  There

11     are quite a few of them.

12        Q.   Yes, all right.  We can take the most recent one, the 10th, 12th,

13     14th of May, 2007, which is a consolidated statement relating to the

14     events that you described.  That's the most recent one.  That's some

15     while ago now, but it is the most recent.  It's 65 ter number 3016.

16             Do you recall providing that statement?

17        A.   This statement was taken a little -- a few moments or a few -- a

18     little time before I was asked to come and give evidence here, and I

19     asked for changes to be made to the 2004, they weren't, i.e., there's

20     been a mix-up with the 2004 statement which you refused to change and

21     which your investigator, H arjit Sandhu, gave me a leaflet that said:  If

22     you do not answer the questions and a number of laws, which I'm not

23     familiar with, I incurred the possibility of a seven-year sentence.  At

24     the time I was not ready to submit to a new jail sentence.  I had just

25     emerged from prison and he has done whatever he wanted with my statement.

Page 385

 1             So what I said in my evidence at the Limaj case and what I'm

 2     saying today, yes, I accept that but for -- on a number of occasions now

 3     I've said that whatever you see in those statements is not true.  In a

 4     manner of speaking, I was forced to sign them.

 5             JUDGE MOLOTO:  Yes, Mr. Kabashi, I note that you are referring to

 6     a statement of 2004.  The Prosecutor was asking you about the statement

 7     of 2007, which is the most recent one.  So I don't know whether any

 8     mistakes that you say were made in the 2004 statement were -- whether

 9     they were resolved in the 2007 statement, but could you stay with the

10     2007 statement rather than the 2004 statement because that's what he's

11     asking about.

12             THE WITNESS: [Interpretation] That's what I was referring to, the

13     amendments were not made.

14             JUDGE MOLOTO:  Well, the transcript --

15             THE WITNESS: [Interpretation] Only a few --

16             JUDGE MOLOTO:  -- interprets you as referring to the 2004

17     statement, but counsel was asking you about the 2007 statement.

18             You may proceed, Mr. Rogers.

19             MR. ROGERS:  Yes.

20        Q.   Mr. Kabashi, you, I note from your evidence, that you referred to

21     saying:

22             "What I said in my evidence at the Limaj case and what I'm saying

23     today ... I accept that but for -- on a number of occasions now I've said

24     that whatever you see in those statements is not true."

25             Do you stand by what you said in the Limaj trial when you

Page 386

 1     testified before the Court then?

 2        A.   Yes, on my evidence there, yes.

 3        Q.   What you said to that Trial Chamber was the truth, was it,

 4     Mr. Kabashi?

 5        A.   Yes, on my evidence before the court of law, yes, from what I

 6     recall.

 7        Q.   Do you recall speaking to that Trial Chamber about the events

 8     relating to Pal Krasniqi and Skender Kuci?

 9        A.   I cannot remember.

10        Q.   Would you like me to show the transcript to you where you spoke

11     about those events so that you can refresh your memory?

12        A.   Yes.

13        Q.   Okay.  It's 65 ter 3047 and it starts at page 81.  Do we have it?

14     And you will see in here a reference to a question at the top of the

15     page -- I'll come back to the times in a moment, but do you see at the

16     top of the page there, there is a question.  Are you able to read this in

17     English, Mr. Kabashi, or would you wish it to be translated?  Are you

18     able to read it in English?

19             Mr. Kabashi, are you able to read it in English?

20        A.   [In English] I'm reading it.

21        Q.   Thank you.

22        A.   I'm reading it.

23        Q.   Perhaps if we could go through it together.  It says at the

24     top:

25             "Q.  Witness, was there somebody else at that barracks at some

Page 387

 1     point that was detained, someone that you knew from before?"

 2             And you answered:

 3             "Yes."

 4             Is that right?

 5             MR. GUY-SMITH:  I thought the purpose of this exercise was to

 6     refresh his memory.

 7             MR. ROGERS:  Yes --

 8             MR. GUY-SMITH:  The question just asked certainly doesn't do

 9     that.  If the witness is given an opportunity to read, then he can answer

10     Mr. Rogers' question, which is:  After having reviewed the document

11     whether it does refresh or doesn't refresh his memory with regard to

12     those events, by that I mean the event of testifying.

13             JUDGE MOLOTO:  Mr. Rogers.

14             MR. ROGERS:  Your Honour, I'm content for the witness to read

15     through.  I was not certain that he was understanding it because it's not

16     in his own language, hence I was reading it out, to see whether he agreed

17     with each portion of it --

18             MR. GUY-SMITH:  Well, I take --

19             JUDGE MOLOTO:  Well, I guess Mr. Kabashi said he was reading it,

20     but let's give him a chance to do it.

21             MR. GUY-SMITH:  Thank you.

22             MR. ROGERS:  [Overlapping speakers]

23             JUDGE MOLOTO:  You don't have to read the entire transcript,

24     Mr. Kabashi, it's just those few questions at the beginning.

25             MR. ROGERS:

Page 388

 1        Q.   You refer there to Pal Krasniqi and Skender Kuci; correct?

 2        A.   [Interpretation] Yes.

 3        Q.   And you -- do you recall now, having refreshed your memory, about

 4     when it was that you saw them at the barracks?

 5        A.   I can't remember.

 6        Q.   You've just read the beginning part of that transcript that

 7     refers to a time-frame.  Having refreshed your memory from it, have

 8     you --

 9             MR. GUY-SMITH:  Excuse me, the question remains the same, and the

10     purpose of refreshing memory is you give somebody a document or some

11     other piece of evidence and they are able to examine it.  After that the

12     question remains the same:  Is your memory refreshed or not?  If the

13     witness indicates his memory is not refreshed, you can't say "your memory

14     is refreshed," that's improper because the exercise here is specifically

15     limited to the issue of refreshing memory.

16             JUDGE MOLOTO:  Mr. Rogers.

17             MR. ROGERS:  Your Honour, it just simply gives the witness an

18     opportunity to clarify with the Court, if he wishes, whether he does or

19     does not remember his mind having been directed more specifically to the

20     actual thing that it is alleged he said, bearing in mind the witness's

21     answer already is that everything he said in the Limaj trial was true.

22             MR. EMMERSON:  No, he did not, with respect, say everything he

23     said in the Limaj trial was true.  I was careful at that stage to watch

24     the way the question and answer was delivered.  Because clearly if

25     Mr. Rogers wants to elicit testimony through memory-refreshing, he's

Page 389

 1     going to need to do what he's doing now which is to go through the

 2     testimony, invite the witness to refresh his memory and ask him now

 3     whether he recalls it, and that's obviously going to be a point-by-point

 4     analysis of the testimony he gave in Limaj.  He gave a large amount of

 5     testimony in Limaj across a very broad range of issues, most of which had

 6     nothing to do with Jabllanice, as Mr. Rogers has carefully emphasised to

 7     Your Honours already.  We don't know what it is precisely the witness was

 8     referring to in the answer that he gave.  And it certainly can't be taken

 9     as a categoric adoption of each and everything that appears on the

10     transcript.

11             MR. KARNAVAS:  Your Honour, may I be heard because now

12     Mr. Emmerson is insinuating, perhaps it was a mistake, but he is

13     insinuating that my client committed perjury in the Limaj case, but --

14             MR. EMMERSON:  No, absolutely not.

15             MR. KARNAVAS:  If he would just sit down and wait his turn.  I

16     lack the civility that Mr. Rogers has, and I will attack when my client

17     is attacked.  Now, he was posed a question.  If we go back to the

18     record - and that's something that the Prosecution should have done but

19     did not do - in the Limaj case he's asked specifically on page 4179 if he

20     gave a statement and if it was voluntary and if he was truthful.  And he

21     said -- and it's over here:

22             "And apart from some corrections and explanations which we have

23     discussed earlier this week, were you as truthful as you could be in

24     those statements?"  Meaning 2004, October and December.

25             And the answer is:

Page 390

 1             "Yes."

 2             He then testifies and he answers all the questions.

 3             Now, if Mr. Emmerson or someone else thinks that he perjured

 4     himself in that testimony then they should point out where it is.

 5             MR. EMMERSON:  I'm absolutely not suggesting anything of the

 6     sort.  I'm simply say that if Mr. Rogers wishes to use the transcript as

 7     memory refreshing, then he needs to direct the witness's attention to

 8     which parts of the transcript he's referring to.  I'm making no such

 9     suggestion against Mr. Kabashi or any either suggestion.

10             MR. GUY-SMITH:  If I might, this whole dilemma started because of

11     the following question and answer.  The question posed by Mr. Rogers at

12     page 56, line 2, was:

13             "And do you recall now, having refreshed your memory, about when

14     it was that you saw them at the barracks?"

15             And his answer is:

16             "I can't remember."

17             So obviously his memory is not refreshed as a result of reading

18     that transcript.

19             JUDGE MOLOTO:  I suppose you are going to have to take --

20             MR. ROGERS:  [Overlapping speakers] --

21             JUDGE MOLOTO:  Step by step.

22             MR. ROGERS:  [Overlapping speakers] --

23             JUDGE MOLOTO:  And make sure that your questions follow

24     logically --

25             MR. ROGERS:  Your Honour --

Page 391

 1             JUDGE MOLOTO:  -- on the previous question.  The purpose was to

 2     refresh your memory.  Then let's find out whether the memory has been

 3     refreshed.

 4             MR. ROGERS:

 5        Q.   Mr. Kabashi --

 6             MR. ROGERS:  And, Your Honours, we'll need to go line by line?

 7             JUDGE MOLOTO:  It does look like.

 8             MR. ROGERS:  Page 81 of the e-court transcript, 4225 the actual

 9     transcript -- that's why I was attempting to go line by line.

10        Q.   If you look, please, Mr. Kabashi at what is line 5.  You see the

11     question and answer:

12             "Were there people that you knew from beforehand?"

13             And you gave an answer.

14             Having looked at the answer between lines 5 and 7, is your memory

15     now refreshed as to the time and the number of persons that you saw?

16        A.   [In English] No.

17        Q.   No, all right.

18        A.   [Interpretation] I'm not --

19        Q.   Read on a little bit, please, from lines 8 down to line 12 and

20     you'll see a reference there to the two men that we've been speaking

21     about.

22             Is your memory refreshed now as to those two men and whether you

23     saw them?

24        A.   What are you aiming at?

25             JUDGE MOLOTO:  His aim is unimportant, Mr. Kabashi.  Just the

Page 392

 1     question is:  Is your memory refreshed after having read those lines?  I

 2     know you answered it, but he's asking you again.

 3             THE WITNESS: [Interpretation] Mr. Rogers could have had a deeper

 4     investigation about what he's referring to.  He certainly had all the

 5     capabilities.  He's too late now to speak about these things, in my view.

 6     He is meaningless to continue to talk about these things now.

 7             JUDGE MOLOTO:  Mr. Kabashi, well it may -- you might think it is

 8     meaningless, but it is not for purposes of what we are here about.  And

 9     what Mr. Prosecutor wants to find out from you is just whether your

10     memory has been refreshed after having read lines 5 to 7 on the

11     transcript of your testimony in the Limaj case.  And I think the answer

12     to that question is very simply:  Yes, my memory is refreshed; or no, my

13     memory is not refreshed.

14             THE WITNESS: [Interpretation] When you started to speak,

15     Your Honour, you said the aim is what happened, the aim which has not

16     been apparent to me on the part of the Prosecution so far.  Had the

17     Prosecution had that aim, it would have gone to -- out of its way to make

18     everything possible, to realise it.  I come from that country, I have

19     been there.  They haven't done even 1 per cent of the work.  That is why

20     I am unable to say or to speak about things which are not considered by

21     justice because there is no justice here.  I don't think that the justice

22     is brought here before you, Your Honours.  There are many, many other

23     things that have been disregarded, have not been investigated to come to

24     justice, to come to the phase where we know what has everyone done --

25             JUDGE MOLOTO:  Now can I stop you, Mr. -- look, I'm going to stop

Page 393

 1     you.  We -- I don't know how deep the Prosecution should or should not

 2     have gone.  That is really not material for purposes of this exercise.

 3     The question that is being put to you is a very simple one:  Whether your

 4     memory has been refreshed after reading what you see in lines 5 to 7 of

 5     your testimony in the Limaj trial.  And if you will just say whether your

 6     memory is refreshed or not refreshed, we will then move a little further

 7     on with this and you will probably go home a little bit sooner than you

 8     probably might if you don't answer.

 9             I don't think it's for you or I to comment on how the Prosecution

10     investigated this case, whether deep or not deep.  Just answer the

11     question and then we will go home sooner, please.

12             THE WITNESS: [Interpretation] Is it possible to know why I cannot

13     know why the Prosecution didn't conduct its investigation properly?  Why

14     when I belonged to that country, to that place.  Can you please explain

15     to me why I don't have this right.  If you do, I will be very frank and

16     try to do my best to answer the questions.

17             JUDGE MOLOTO:  [Overlapping speakers] ...

18             THE WITNESS: [Interpretation] Why I am that collaborator that was

19     sought by the Prosecution, to co-operate with it, to discover the crimes

20     perpetrated?  So if you don't perform your duty well, like the

21     Prosecution has, then why should I be under an obligation to answer

22     questions posed to me by the Prosecution?  Where is the crux of the

23     matter?  Why should I feel obligated to answer it?  And they were not

24     obligated to go to the root of the crime, to know who the perpetrators

25     were or in the case of Skender Kuci.  There are rumours that he was taken

Page 394

 1     from the place he was working.  He was there with other people.  The

 2     entire village, my village, and other villages know who took him, where

 3     they took him, and what happened.  Why the Prosecution can't know this,

 4     why the Prosecution should ask me when the Prosecution had the necessary

 5     data to go to the person who knows who took him.  Why have they been

 6     discriminating me vis-a-vis other witnesses.  They haven't taken the

 7     witnesses who should come here to testify, they haven't.  They have had a

 8     lot of data on crimes committed.

 9             Your Honour, in my opinion, if we want to do justice to the

10     victims, we should find who committed the crime, who committed the

11     offence, and find the witnesses.  They haven't done that and I can

12     produce facts to prove my point.  I don't like to mention names, I don't

13     want to do harm to anyone or to do an honour, if that's the case.

14             I said in 2007, even before, I was not willing to go back to jail

15     because I have a family to keep.  I want to express my gratitude to my

16     brother and others that helped me.  People who have been working 15-

17     16-day hour days to keep their families and help me --

18             JUDGE MOLOTO:  Mr. Kabashi, sorry.  I must ask you once again to

19     please stay short and just to answer the questions from the Prosecution.

20     We are trying to do here just what you say should be done.  You are being

21     asked to help to tell us what you know about this case, and if you know

22     something, tell us; if you don't know, you don't know.  Just answer the

23     questions of the Prosecutor.  I think the Prosecutor has done his job the

24     best way he thinks he should do it.  And you and I -- I don't know what

25     you mean by "he's not doing his job well," because I don't know whether

Page 395

 1     you know what his job is.  But just answer his questions.

 2             MR. KARNAVAS:  If I may heard, Mr. President, just very briefly.

 3     There is a sense of frustration on the part of Mr. Kabashi because he

 4     came forward when nobody else would or did back right after he was

 5     released from prison, where he was tortured effectively for three years.

 6     He gave information to the authorities in Kosovo, the local authorities,

 7     the United Nations, and the ICTY.  Those authorities did zero.  They did

 8     nothing.  He came to the Limaj case, it was poorly prosecuted.  In his

 9     opinion other evidence was not investigated, and so he felt and he feels

10     today a sense of betrayal.  He's now being asked to come here today and

11     testify again.  He does not believe that the Prosecution has ever been

12     serious in this case, and that's why there is a sense of frustration on

13     his part.  And he wanted to make this known to the Trial Chamber.  And

14     hopefully now that he has made this known, he may be able to answer some

15     questions so that you can go on about your business and he can go on

16     about his business.

17             But I must say, I must say, and I say this regrettably, that

18     coming here as a witness and being handcuffed at the airport and then

19     taken to the UNDU like a prisoner and then being woken up every 30

20     minutes where they check you at night, every 30 minutes, reminds him of

21     what it was like when he was in prison and he was being woken up every 30

22     minutes to get a beating.  And that's what we're dealing with here today

23     and it's regrettable.  But I understand his sense of frustration, and I

24     certainly see Your Honours are being very, very patient.  But I think now

25     that he's finished at least explaining why he feels betrayed and that

Page 396

 1     there is no sense of justice overall, hopefully we can go about the

 2     business of answering some questions so we can get out of here.  Thank

 3     you.

 4             MR. GUY-SMITH:  If I might, Your Honour, just one thing in terms

 5     of Mr. Karnavas's testimony, which is with regard -- with regard to the

 6     issue of beating, since there's been the issues of Mr. Kabashi being

 7     beaten, it's my understanding - and perhaps this -- I could be

 8     corrected - it's my understanding that he was beaten by the Serbs.

 9             MR. KARNAVAS:  That's correct.

10             MR. GUY-SMITH:  That's while he was in prison.

11             MR. KARNAVAS:  That's what I'm referring to, the three years that

12     he spent as a prisoner of war why the Serbs.  And so now he's back up

13     and, you know, every 30 minutes they're checking up.  There is such a

14     thing called post-traumatic stress disorder, and I believe we may be

15     dealing with -- I'm not a specialist, but I've dealt with the issue long

16     enough to know we're dealing with a situation where the Court, the

17     Trial Chamber -- the Judge who ordered his arrest and, of course, now him

18     being here handcuffed, I'm unable to see him, all of these are playing

19     into this situation and it's regrettable.  But he's doing his level best

20     under the circumstance.  I know it doesn't seem that way, but he is doing

21     his level best to co-operate, and hopefully now he'll be able to answer

22     the questions, but we do need to go step by step.  And it would be, far

23     be it for me to give advice -- some foundations occasionally might help

24     so we don't get the sort of objections that we are getting which, in my

25     opinion, in many instances are proper objections.

Page 397

 1             JUDGE MOLOTO:  Thank you for that, Mr. Karnavas.

 2             I hope as you right -- as you say, that now that he has --

 3     Mr. Kabashi has expressed his feelings we might be able to move a little

 4     forward with the case.

 5             Mr. Kabashi, I ask you now that we have heard your frustrations,

 6     your counsel has explained them -- elaborated on them, I hope that we can

 7     now -- you are now in a better position to answer the questions of the

 8     Prosecutor.

 9             Mr. Prosecutor, you may proceed.

10             MR. ROGERS:

11        Q.   Mr. Kabashi, I return to these two men, Pal Krasniqi and

12     Skender Kuci.  What can you tell the Trial Chamber, please, about what

13     you saw or heard in relation to those men in Jabllanice in 1998?

14        A.   I see we are going back to square one.  If it's possible, just I

15     would like to give a brief example to you, Your Honours.

16             If a witness testifies, provides data, on a crime committed and

17     at the same time he knows, he recognises, the person who has committed

18     the crime, that is the perpetrator, he provides the Prosecution with that

19     data.  The perpetrator is today free, was never, never detained, never

20     charged - and I am speaking specifically of the same subject matter, as I

21     have seen many things in my life - how can I trust that Prosecution that

22     it has done the best thing?  This is just a simple example.  Please,

23     Your Honours, tell me, how can I trust such a Prosecution?  This was a

24     simple example to make you understand my position and the work done by

25     the Prosecution and its investigators.  If you convince me or explain to

Page 398

 1     me why this is the case.  Earlier on, Your Honour, you told me that it's

 2     not up to me or to you to judge the work of the Prosecution.  Maybe it's

 3     not, but for me it is because I come from that country and I know very

 4     well, and many other witnesses know very well, what they have done,

 5     witnesses who have been either disappeared or don't -- or refuse to come

 6     here.  I know very well who the witnesses should be -- should have been.

 7     Where are those witnesses?  So you expect me to give names about

 8     witnesses, then other conflicts may ensue.  I think -- let the

 9     Prosecution tell me where are the suitable or adequate witnesses who

10     should have come here to testify?  And I know that they know very well

11     what I'm talking about.  I'm not the witness that should have taken the

12     stand here.  I should have come here after all the other people who

13     should have come here to testify should have come here.  Those witnesses

14     who have been eye-witnesses are no longer alive, either they have been

15     killed or disappeared.  And I know that the Prosecution has questioned

16     such witnesses.  I'm not talking of one single witnesses, but of several

17     such witnesses.  Let the Prosecution tell me, where are these witnesses

18     that the Prosecution has questioned?

19             I was lucky that I am still alive.  Where is the destiny of those

20     other witnesses that are no longer here?  Even on television I have heard

21     that witnesses have been intimidated, they are afraid, both by the --

22     such words have been mentioned by the Prosecution and by the Defence as

23     well.  But I'm talking -- I'm saying the truth here.  Let them tell me

24     where are those witnesses.  I know very well that they were witnesses and

25     today they are no longer alive.  Let the Prosecution tell me who will be

Page 399

 1     responsible for the lost lives.

 2             JUDGE MOLOTO:  If I may ask you a question, Mr. Kabashi.  Does

 3     the Chamber understand you --

 4             THE WITNESS: [Interpretation] Certainly.

 5             JUDGE MOLOTO:  -- to be saying you are fearful of testifying here

 6     for your life because some witnesses who did testify previously have

 7     either been killed or dis -- or they have disappeared?  Is that the

 8     reason?  Is that why you don't want to testify?  And you can just say yes

 9     or no.  You don't have to elaborate.

10             THE WITNESS: [Interpretation] No, I'm not afraid, Your Honour.

11     I'm not afraid.  I am afraid of something else.

12             JUDGE MOLOTO:  Is --

13             THE WITNESS: [Interpretation] I spoke about other witnesses.  I

14     didn't mean myself.

15             JUDGE MOLOTO:  Sure.  No, no, I understand you.  I understand

16     you.  You keep saying we must -- the Prosecutor must tell you where those

17     people are, and you seem to know that they have been killed or they

18     disappeared somehow.  And I'm asking you:  Is that the reason you don't

19     want to testify, because people who testified have either been killed or

20     they have disappeared?

21             THE WITNESS: [Interpretation] No, this is not the reason,

22     Your Honour.

23             JUDGE MOLOTO:  Do you have any other reason why you don't want to

24     testify?

25             THE WITNESS: [Interpretation] This is one of the reasons, but

Page 400

 1     there are other reasons that I enumerated earlier, namely, that the

 2     witnesses who should have come, those who have committed the crimes, that

 3     the Prosecutor knows very well, is not here as an accused.  So in

 4     summary, because there are many, I would like to say that I don't feel it

 5     up to the situation to testify because it seems to me invalid, useless,

 6     unjust, very unjust, to testify.  I may say -- you can urge me to testify

 7     all day, but I cannot.  Much as I wish to say something, much as I wish

 8     to testify, it's beyond me to do that.  I have come here to have justice.

 9     I joined the war to defend my country and the things that occurred after

10     the war have done us disgrace, I may say.

11             JUDGE MOLOTO:  Okay.  Thank you so much.

12             I realise we've gone, what, 17 minutes beyond the time we should

13     have taken the break all because we have been having short breaks in

14     between this morning, but just to make sure that we do not overstep the

15     tapes, I will ask that we take a break now, maybe it will be a shorter

16     one, can we come back at half past so that we start the next session at

17     the time it's supposed to start.  Take a short break.

18             [Microphone not activated]

19                           [The witness stands down]

20                           --- Recess taken at 12.17 p.m.

21                           --- On resuming at 12.33 p.m.

22             JUDGE MOLOTO:  May the witness please be brought in.

23                           [The witness takes the stand]

24             JUDGE MOLOTO:  You may be seated, Mr. Kabashi.

25             THE WITNESS:  Thank you.

Page 401

 1             JUDGE MOLOTO:  You may proceed, Mr. --

 2             MR. ROGERS:

 3        Q.   [Microphone not activated]

 4             Mr. Kabashi, you testified in the Limaj trial relating to the

 5     truthfulness of the statements that you made to the Office of the

 6     Prosecutor.  Do you remember that?  Your counsel just referred to it in

 7     court.

 8        A.   [Interpretation] I thank the counsel for everything he's done for

 9     me.  And I thank the Court for its understanding.  There is nothing more

10     I can add to this trial.  It's beyond me, it's impossible.  I apologise

11     for that.

12        Q.   Mr. Kabashi, are you prepared to answer any further questions in

13     these proceedings?

14        A.   If I could, I would willingly do; but I cannot.  I really cannot.

15     I don't see any reason why.

16        Q.   Can I ask you this, to clarify the -- is it your position

17     relating to what you said in the trial in Limaj:  Is what you said in

18     that trial true?

19        A.   As I already stated, I am unable to discuss this issue further

20     nor to answer more than I have done so far.  What I said before this

21     Court I accept, to my recollection; there are things that I don't

22     remember.

23        Q.   When you said just a moment ago "what I said before this Court,"

24     do you mean this Chamber or both this Chamber and the last Chamber, the

25     Limaj Chamber?

Page 402

 1        A.   I don't know if you understand me, but there is nothing more I

 2     can add.

 3        Q.   Mr. Kabashi, if I show you your prior witness statements and as

 4     you to go through them, will that help you to remember any of the events

 5     or to help you to want to testify.  In other words, if I show you those

 6     and go through them, will you answer my questions about them?

 7        A.   I already stated, it's not that I'm unwilling to reply to your

 8     questions; but I am unable to answer to any other question and I cannot

 9     provide any more assistance to this Chamber.  It's inside me.  You can do

10     whatever you want me, you can kill me, you can imprison me, but I cannot.

11     Maybe I'm a person who is not very clever.  I haven't done a lot of

12     schooling.  Even my mother doesn't understand me properly, so I don't

13     think you will either.  But I would kindly ask you to let me go and you

14     know why.  I tried to explain even earlier.  I hope it suffices.  I don't

15     know why you are -- I said even in the first session:  Please, don't push

16     me to say bad words which you can use against me then.  You don't need to

17     do that.

18             If this trial is here to do justice, to discover crimes, and the

19     Prosecutor's office has done nothing, then why do you involve me?  I am a

20     very insignificant player.  It won't make any difference.

21        Q.   Mr. Kabashi, do you understand that this Trial Chamber wishes to

22     hear your evidence about the matters that you saw and heard in 1998 in

23     Jabllanice?  Whatever it may be.

24        A.   I said I am unable to speak about these things.

25        Q.   Mr. Kabashi, you spoke about them in the past in the Limaj case.

Page 403

 1     Why are you not able to speak about them again now?

 2        A.   If you were in my shoes, you'd know why.  Since you are not, you

 3     will never be able to understand the reason why.  If you had passed

 4     through what I have -- you haven't gone halfway, I think, what I have

 5     done.  I have suffered a lot and the burden is so heavy that I cannot

 6     lift myself up.  I don't want you to urge me more than you are.  Maybe I

 7     would even forget everything I have passed.

 8             If it's possible, that would be the best approach you would

 9     follow.  But if you -- even if you accuse me of something, then I will

10     let it to God to decide.  My children have bread to eat.  I grew up an

11     orphan myself because he died very younger, younger than I am today, but

12     he is three days -- three sons, sorry, they have survived and mine will

13     survive.  I leave it in the hands of God.

14        Q.   Mr. Kabashi, you have given a number of reasons why you don't

15     wish to answer further questions.  Earlier, His Honour was asking you

16     about whether there was anything about which you were afraid and whether

17     that was affecting you in any way from wishing to testify.  Is there

18     anything about that, about your -- are there any fears that you have for

19     your own safety or the safety of anybody else should you continue to

20     testify?

21        A.   [In English] Do I look like one who is afraid?

22        Q.   I wonder if you could just answer my question without posing a

23     question.

24        A.   [Interpretation] I cannot answer your question.

25        Q.   Do you have any -- I'll break it into two, see if you can answer

Page 404

 1     this:  Do you have any fears specifically for yourself, for your own

 2     safety or otherwise, should you answer questions?

 3        A.   I already answered the question to my understanding.

 4        Q.   Do you have any fears for the safety of any other person should

 5     you answer questions?

 6        A.   I already stated that.

 7        Q.   Mr. Kabashi, it would be of great assistance for us to be very

 8     clear on these two points, and I say you've stated it.  Would you just

 9     state one more time for the record so it's very clear, whether you -- it

10     can be yes or no, whether you have any fears for yourself if you were to

11     continue to testify.  Yes or no.

12             MR. GUY-SMITH:  It is very clear.

13             MR. ROGERS:  I'm not sure it is.

14             MR. GUY-SMITH:  I'm -- I'm quite sure it's clear if you take a

15     look at the record, and really what is going on here is Mr. Rogers is

16     using this as a device to seek to do something in the future.

17             MR. ROGERS:  No, that's not right.

18             MR. GUY-SMITH:  Oh, it's most definitely right, and you know you

19     are going to try to do it later.

20             MR. ROGERS:  It's a proper question in the circumstances.

21             MR. GUY-SMITH:  In these circumstances this gentleman has

22     repeatedly made himself clear.

23             MR. ROGERS:  If the Court --

24             MR. GUY-SMITH:  In my entire experience of litigation, I have

25     never seen a witness make himself clearer.

Page 405

 1             MR. ROGERS:  If Your Honours consider the matter is clear, then I

 2     need not pursue it; if Your Honours do not, then perhaps it would be best

 3     if it was abundantly clear.

 4             MR. GUY-SMITH:  I'm sorry, Your Honour, putting an adjective on

 5     the issue of clarity doesn't assist this at all.

 6             MR. ROGERS:  I'm in Your Honours' hands.  The objection has been

 7     made.  It's a matter for Your Honours to rule.

 8             JUDGE MOLOTO:  [Microphone not activated]

 9             MR. ROGERS:  The objection's overruled.

10        Q.   Mr. Kabashi, would you answer the question.  Yes or no, are you

11     afraid for yourself should you continue to testify in this matter?

12        A.   No, I am not afraid.  But I am unable to testify.  It's not a

13     matter of fear.  It's something that is inside me, a feeling I have

14     inside myself, something that keeps you alive or makes you go on living

15     in the place you live.  There are many things there that prevent me.  I'm

16     trying, I'm doing my best, but I can't.  I don't see any rights

17     somewhere, prevailing somewhere, to give me a reason why.  That's why I'm

18     not testifying.

19        Q.   For the clarity, is there any reason as any fear that you have

20     for the safety of any other person should you continue to testify?

21        A.   I said what I wanted to say.  I don't think I can say something

22     else.

23             MR. ROGERS:  Your Honours, I have asked a direct question and

24     asked for a yes or no answer.  I wonder if you would direct the witness,

25     please, to answer the question:  Is he afraid for any other person should

Page 406

 1     he continue to testify?

 2             JUDGE MOLOTO:  Mr. Kabashi, are you -- will you please answer the

 3     question.  Just say yes or no, whatever the answer is.

 4             THE WITNESS: [Interpretation] I don't know.

 5             JUDGE MOLOTO:  You don't know whether you fear for somebody else?

 6             THE WITNESS: [Interpretation] I don't know.

 7             JUDGE MOLOTO:  There you are, Mr. Rogers.

 8             MR. ROGERS:  Your Honours, yes, this is as far as we can go on

 9     that particular issue.

10             Would Your Honours bear with me.

11                           [Prosecution counsel confer]

12             MR. EMMERSON:  Your Honours, whilst Mr. Rogers is consulting, can

13     I ask the record to note that on page 71, lines 21 to 23, when the

14     witness is asked the question that he has just been asked immediately

15     before his answer he was shaking his head which should appear on the

16     video.

17             JUDGE MOLOTO:  Page 71, line ... ?

18             MR. EMMERSON:  21 to 23, the witness shook his head whilst giving

19     his answer.

20             MR. ROGERS:  He did.  I accept that.  There may be all sorts of

21     reasons for that, of course.

22             MR. GUY-SMITH:  Well, yes, to the extent that the video recording

23     is of assistance to the Chamber in determining issues with regard to

24     demeanour and credibility, I think that Mr. Emmerson's point is well

25     taken and is something that should be in the Chamber's mind.

Page 407

 1             JUDGE MOLOTO:  Thank you, Mr. Guy-Smith.

 2             Mr. Rogers.

 3             MR. ROGERS:  Your Honours, I think we've come to a stage where I

 4     have to consider what the further steps I should take in relation to

 5     seeking to continue to hear the evidence of this witness one way or

 6     another.  I don't want to make a precipitate application.  I'd rather

 7     consider it with care as to the next steps.  I've tried

 8     memory-refreshing.  The witness has not gone along that road.  The next

 9     step is one I would like to consider, but I don't wish to discuss that in

10     the presence of the witness.  So as we come, I think, really to the end

11     of this morning's proceedings or near to that, as far as we're able to go

12     this morning, Your Honour, I wonder if the witness could leave for the

13     moment.

14             JUDGE MOLOTO:  Mr. Kabashi, you are excused for the moment.

15                           [The witness stands down]

16             MR. EMMERSON:  I'm just wondering if Mr. Rogers is going to

17     outline the way in which his mind is working, we probably ought to be in

18     private session.  It would certainly help us to know what he intends to

19     do.

20             MR. ROGERS:  Yes, I'm happy to go into private session.  I was

21     going to outline.

22             JUDGE MOLOTO:  Do you want to outline it now or did you want to

23     consider it?  I thought you wanted to [Overlapping speakers] ...

24             MR. ROGERS:  No, I'll consider it, but I'm not going to make the

25     application right this minute.  I just wanted to tell Your Honours so

Page 408

 1     that my learned friends are aware.

 2             JUDGE MOLOTO:  Yes.

 3             May the Chamber please move into private session.

 4                           [Private session]

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 409











11  Pages 409-418 redacted. Private session.















Page 419

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12                           [Open session]

13             THE REGISTRAR:  Your Honours, we are back in open session.

14             JUDGE MOLOTO:  Thank you so much.

15             We are going to take an adjournment and we will come here

16     tomorrow at 9.00 in the morning, and Mr. Rogers will tell us then what

17     his decision is.

18             May the Chamber rise.

19                           --- Whereupon the hearing adjourned at 1.10 p.m.,

20                           to be reconvened on Tuesday, the 23rd day of

21                           August, 2011, at 9.00 a.m.