1 Thursday, 1 September 2011
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.17 p.m.
5 JUDGE MOLOTO: Good afternoon to everybody in and around the
7 Madam Registrar, will you please call the case.
8 THE REGISTRAR: Good afternoon, Your Honours. This is case
9 number IT-04-84bis-T, The Prosecutor versus Ramush Haradinaj, Idriz Balaj
10 and Lahi Brahimaj.
11 JUDGE MOLOTO: Thank you very much. Could we have the
12 appearances for today, starting with the Prosecution.
13 MR. ROGERS: Yes, good morning, Your Honours. Paul Rogers, and
14 Ms. Daniela Kravetz for the Prosecution together with our case manager,
15 Line Pedersen.
16 JUDGE MOLOTO: Thank you, Mr. Rogers.
17 And for Mr. Haradinaj.
18 MR. EMMERSON: Ben Emmerson, together with Rod Dixon,
19 Annie O'Reilly, Andrew Strong and we're joined today by
20 Daniel Gad el rab.
21 JUDGE MOLOTO: And for Mr. Balaj.
22 MR. GUY-SMITH: Good afternoon, Your Honours. Gregor Guy-Smith,
23 Colleen Rohan, Chad Mair on behalf of Mr. Balaj. Mr. Zyberi is no longer
24 with us.
25 JUDGE MOLOTO: Thank you so much, Mr. Guy-Smith.
1 And for Mr. Brahimaj.
2 MR. HARVEY: Good afternoon, Your Honours. Richard Harvey,
3 assisted by Mr. Paul Troop and Mr. Luke Boenisch. I should have notified
4 Your Honours, just as Mr. Zyberi is no longer available to assist
5 Mr. Guy-Smith, Ms. Jasini is no longer available to assist me, which
6 means that both of our teams have lost their Albanian-speaking members,
7 but I just pass that on.
8 JUDGE MOLOTO: Thank you, Mr. Harvey.
9 May we pleas move into closed session.
10 [Closed session] [Confidentiality lifted by order of the Chamber]
11 MR. HARVEY: Your Honour, I'm sorry, before we do move into
12 closed session, I think we probably already have.
13 THE REGISTRAR: We are in closed session.
14 MR. HARVEY: There's a matter I'd like to raise in open session,
15 if I may, before the witness is brought in.
16 JUDGE MOLOTO: [Microphone not activated] Okay. Wait a minute
17 with the blinds there, sir.
18 Madam Registrar, can you take us back into open session.
19 [Open session]
20 THE REGISTRAR: Your Honours, we're in open session.
21 JUDGE MOLOTO: Thank you so much.
22 Yes, Mr. Harvey.
23 MR. HARVEY: Your Honours, yesterday, I caused a letter to be
24 sent to Prosecution counsel, in light of matters that the court was
25 discussing yesterday. There are several matters that arise as a result
1 of that, and I think Your Honours would be assisted if I could hand to
2 you copies of correspondence and documents received from the Prosecution
3 as a result. There are three copies here for Your Honours; one for the
5 JUDGE MOLOTO: Are you tendering them as exhibits [Overlapping
6 speakers] ...
7 MR. HARVEY: No. I'm providing them for your assistance because
8 I wish to take you through them and indicate to you the position we have
9 reached today, which I think is one that is profoundly disturbing and on
10 which I will be seeking your guidance in due course. But I think you're
11 going to need to follow these with me. I just want to be as helpful to
12 everybody as possible, so that you can see what this is about.
13 Thank you.
14 MR. EMMERSON: As far as I'm concerned these documents arrived 4
15 minutes before I walked into court. I'm not sure when the Prosecution
16 served them but I think it was shortly before 2.00.
17 MR. HARVEY: 1.52 is the time of the e-mail.
18 JUDGE MOLOTO: Okay.
19 MR. HARVEY: Your Honours will see, first of all, the first sheet
20 you have is in fact the reply. I'd like if you would be kind enough to
21 turn to page two which was my letter sent by my Case Manager yesterday at
22 6.12 p.m., while I was on my feet, and which I wrote to Mr. Rogers in the
23 following terms:
24 [As read] "In the light of the questions you asked of the witness
25 in private session," and I give the transcript reference there, "it is
1 evident that you are in possession of further information concerning this
2 witness's application for asylum refugee status. I would therefore be
3 grateful if you would urgently, i.e., by close of business today," that
4 is to say yesterday, "disclose all document and information in your
5 possession concerning the witness's application for asylum refugee status
6 in order that I may consider the material and use it, if appropriate, in
7 cross-examination. This includes, but should not be considered limited
8 to: 1, any correspondence between the OTP and any other party such as
9 the country's authorities, lawyers or intermediaries acting on behalf of
10 the witness; 2, documentation evidencing the progress of and outcome of
11 the witness's application for asylum and/or refugee status; 3, subsequent
12 proceedings brought by the authorities to deport or remove the witness
13 from the country; 4, submissions or representations made by the OTP to
14 the country's authorities to enable the witness to return to that country
15 if he were to leave that country in order to testify, having been refused
16 permission to remain in that country.
17 "I would be grateful if you would consider this request and of
18 the utmost urgency."
19 You will see then if you turn back to page 1, Your Honours, the
20 response, and you will see that it is timed at 1.52 p.m. today:
21 [As read] "Dear counsel: I write in response to Mr. Harvey's
22 disclosure request, in which he asks for urgent disclosure of all
23 documents," et cetera.
24 And then taken in this order:
25 [As read] "In relation to item 3" -- and Your Honours may just
1 want to have -- cast your eyes back to page 2 again. "In relation to
2 item 3, the Prosecution has no information in this regard. In relation
3 to item 4," that's submissions or representations made by the OTP, "no
4 such submissions or representations have been made by the OTP. Travel
5 arrangements for witnesses are handled by VWS. In relation to item, the
6 OTP received from the witness's attorney, on Tuesday, the 30th of August,
7 and as we all know, that's the day before yesterday, a copy of the most
8 recent decision relating to the witness's application. We contacted the
9 attorney yesterday afternoon to inquire whether this decision was subject
10 to any privilege. He has informed that this should be treated
11 confidentially and only referred to in private session. Especially as
12 the witness has not seen or been made privy to it himself. This decision
13 is attached. The only other information about the status of the
14 witness's application was contained in the attorney's original e-mail of
15 5 November 2010, in which he informed the OTP that the witness had
16 recently been denied political asylum and that his case was pending
17 before the (redacted).
18 "Finally, in relations to item 1, that's a request for any
19 correspondence between the OTP and any other party such as the country's
20 authorities, lawyers, or intermediaries acting on behalf of the witness,
21 we are looking into this request and will revert to you in due course."
22 Accompanying that e-mail were the items that Your Honours will
23 find and which, since it is asked by the witness's attorney in the
24 country that these matters should be treated confidentially, I'm not
25 going to read them. But save to say, the first item that Your Honours
1 have, I believe is an e-mail message from Mr. Roel Versonnen, the
2 investigator of the Prosecution, dated the 2nd of February, 2011, to the
3 witness, in response to a message from that witness which appears to be
4 dated that same day. And Your Honours will see the content of that, in
5 my submission, eminently disclosable document, which was disclosed to me
6 at 1.52 p.m. today.
7 And I give Your Honours a moment to read what the witness wrote
8 to Mr. Versonnen.
9 And finally, Your Honours, if you have finished with that, we
10 have the decision of the (redacted) -- ooh. I'm sorry. Can we go
11 into private session.
12 JUDGE MOLOTO: Can we go into private session.
13 MR. HARVEY: Private session.
14 [Private session] [Confidentiality lifted by order of the Chamber]
15 THE REGISTRAR: Your Honours, we're in private session.
16 JUDGE MOLOTO: Thank you very much. Madam Registrar, could be
17 please redact that reference to that country in page 5, line 23.
18 Are you done, Madam Registrar?
19 May we then move into open session.
20 [Open session]
21 THE REGISTRAR: Your Honours, we're in open session.
22 JUDGE MOLOTO: Thank you.
23 Yes --
24 MR. HARVEY: My apologies to everyone. We'll see the decision
25 that was dated the 26th of August, the last month. And you'll see in
1 material part, and I --
2 MR. ROGERS: Your Honour, I'm sorry. If this is to be referred
3 to, it must be referred to in private session.
4 MR. HARVEY: Yes, I accept that. May this be -- may we go into
5 private session for this part.
6 JUDGE MOLOTO: May the Chamber please move into private session.
7 [Private session] [Confidentiality partially lifted by order of the Chamber]
8 THE REGISTRAR: Your Honours, we're in private session.
9 MR. HARVEY: Your Honours, you will see after a number of
10 procedural issues are dealt with, first of all, it appears that the -- on
11 the 16th of June, 2010, an immigration judge denied the witness's
12 applications for asylum, withholding of removal and protection under the
13 UN convention against torture, finding that the applicant established
14 past persecution, however, the immigration judge also found that the
15 (redacted) met its burden with respect to both a
16 fundamental change in circumstances, such that the applicant no longer
17 had a well-founded fear of persecution in Kosovo and the availability of
18 internal relocation. There was then a further decision on -- actually,
19 it would appear an earlier decision on March 10th -- no, I'm sorry.
20 Further decision March 10th, 2011, denying the applicant's motion to
21 remand and dismissing the appeals. However, it appears from the next
22 paragraph that the letter that Your Honours saw yesterday from Mr. Rogers
23 was submitted to the -- to the court for -- as part of an application for
24 review. And in that, it was noted that the applicant provided a
25 voluntary witness statement, in relation to this retrial and that the
1 Office of the Prosecutor intends to call the applicant as a witness at
2 the retrial. The applicant then presents in support of this the
3 rapporteur of the parliamentary assembly report which I'm reminded is the
4 same report, I believe, that Mr. Rogers makes references to in his letter
5 to the witness's attorney.
6 MR. ROGERS: That's not right.
7 MR. HARVEY: Oh, this is a separate one. In that case, it's the
8 Marty report, I expect.
9 MR. ROGERS: No, it's the Gardetta report.
10 MR. HARVEY: Thank you for that clarification. Nice to know.
11 And --
12 JUDGE MOLOTO: Just so that you take me along, what document are
13 you looking at at this point.
14 MR. HARVEY: I'm sorry I'm looking at the second page of the
15 (redacted), Your Honour.
16 JUDGE MOLOTO: Okay.
17 MR. HARVEY: I've moved to the second page.
18 And, really just going on down to the final substantive
19 paragraph. The finding, as a result, essentially, I would say,
20 apparently entirely of Mr. Rogers's letter:
8 Now, this as I say, was provided to me at 1.52 today, as I was
9 preparing to come into court, and we still, as Your Honours will see from
10 page 1 of this small bundle, in relation to my first request, which I
11 would have thought was perhaps the simplest one, any correspondence
12 between the OTP and any other party such as the authorities, lawyers,
13 or -- I'm sorry.
14 We can now go back into open session.
15 JUDGE MOLOTO: I was just going to interrupt you.
16 May the Chamber please move into open session.
17 [Open session]
18 THE REGISTRAR: Your Honours, we're back in open session.
19 JUDGE MOLOTO: Thank you, Madam Registrar.
20 Yes, Mr. Harvey.
21 MR. HARVEY: Yes, Your Honours, I was saying.
22 You will see from the reply received from the OTP just before we
23 came into court, in relation to item 1, they are still looking into my
24 request for any correspondence between themselves and any other party
25 relevant to this case, essentially. I find it shocking, in the extreme,
1 that this documentation has been withheld from us until I filed a further
2 specific request yesterday in writing. One would have thought that
3 Mr. Rogers would have been on his feet with all of these items in his
4 hand before you yesterday and not simply handing over the one letter
5 received -- that he had sent to the attorney in (redacted). I
6 find it shocking that they are still at this stage looking into the
7 request for further documentation that we have asked for. I find it
8 shocking that there is apparently an entire witness file in relation to
9 this witness of which the Prosecution must have knowledge and which they
10 should have sought in order to provide the Defence with the information
11 that we has asked them for -- as long ago as January.
12 JUDGE MOLOTO: Which they should have sought from?
13 MR. HARVEY: Should have sought from the country's authorities,
14 in my submission.
15 There is clearly a mass of documentation in relation to this
16 witness which affects not merely the credibility of the witness but --
17 JUDGE MOLOTO: [Microphone not activated]
18 MR. HARVEY: Your microphone, please, Your Honour.
19 JUDGE MOLOTO: I hold no brief for the Prosecution, however, I
20 just do want to find out from you if Rule 68 does impose such an
21 obligation on the Prosecution to find information that it's not in its
22 possession and to find it to be able to pass it on to you; or is the
23 obligation that the information that's in their possession should be
25 MR. HARVEY: Your Honours, I think I am right in saying, and I
1 will confer with my colleagues if necessary, that requests had been sent
2 to the Prosecution in addition to Rule 68 for any information in their
3 possession or which, by the reasonable exercise of due diligence may come
4 into their possession that could affect the credibility of any of their
5 witnesses. I will check with my colleagues. But once that is made, that
6 request, in that form, most certainly they're under a duty. I don't say
7 that they're not under a duty under the plain wording of Rule 68 in the
8 circumstances we have here.
9 JUDGE MOLOTO: What you are saying still doesn't answer my
10 question, Mr. Harvey. My question is: Whether it's your position that
11 Rule 68 obliges them to go looking for information which is not already
12 in their possession which they suspect might affect the credibility of
13 the witness and find it in order to disclose it to you?
14 Or is the obligation imposing a duty on them to disclose that
15 which is already in their possession and which they know to be
17 MR. HARVEY: Your Honour, I do not believe that a Prosecutor
18 exercising the due diligence which his code of conduct demands of him
19 allows him -- that that duty allows him to sit there and only hand over
20 that which he conveniently has in front of him or in his file, and to --
21 to fail to look for material that he reasonably suspects might be out
23 JUDGE MOLOTO: I thank you for clarifying your position,
24 Mr. Harvey.
25 MR. HARVEY: Mr. Guy-Smith may be able to enlighten us further.
1 MR. GUY-SMITH: Since you asked the specific question about
2 "within the possession of the Prosecutor," the answer to that question
3 is: It need not be in his possession but it must be within his actual
5 So the standard here is within his knowledge. 68(A)(i) says:
6 "Disclose to the Defence any material which in the actual
7 knowledge of the Prosecutor may ...," and then it continues.
8 So it's set forth not in terms of the issue of possession but in
9 terms of knowledge. But I think Mr. Rogers would be hard-pressed to take
10 the position that this was not within his knowledge. But I'm only
11 responding to your specific question at this point in time.
12 JUDGE MOLOTO: Sure. In any case, if we look at what Mr. Harvey
13 was saying:
14 [As read] "I find it shocking that there is apparently an entire
15 witness file in relation to this witness of which the Prosecutor must
16 have knowledge and which they should have sought in order to provide to
17 the Defence with the information."
18 Okay. You say he must have had knowledge. I take note of that.
19 MR. HARVEY: Your Honours --
20 JUDGE MOLOTO: You may proceed.
21 MR. HARVEY: -- at this stage, the Defence is put in a position
22 where we really have to consider whether to seek sanctions. We really
23 have to consider what steps we are going to ask Your Honours to take.
24 And, as you know, having come into possession of this literally minutes
25 before coming into court I have not had a chance to speak with either of
1 my fellow counsel on this, and we would wish, certainly, to confer about
2 the most expedient way of proceeding.
3 But right now, as I stand here, I feel that I have been
4 deliberately deprived of information which the Prosecution knew that they
5 had, could, and should have provided to me, and I am being subverted and
6 most importantly my client's rights are being subverted in our ability to
7 conduct a proper, effective, efficient cross-examination of this witness.
8 So, Your Honours, I'm sure you would like to hear further from
9 Mr. Emmerson, Mr. Guy-Smith, and, of course, from Mr. Rogers. But for my
10 part, I would ask for some time, not a lot of time, but some time to
11 confer with my colleagues and with my client, because I haven't had a
12 chance even to speak to my client about this extremely important
13 information and the manner in which it has come to me.
14 JUDGE MOLOTO: Thank you very much, Mr. Harvey. I think so that
15 we don't have repetition. I would rather you confer first before
16 Mr. Emmerson and Mr. Guy-Smith talk.
17 MR. EMMERSON: Might I be heard on that subject?
18 JUDGE MOLOTO: Just a second, Mr. Emmerson. Let me just finish
19 with Mr. Harvey first.
20 I would have thought it would be better if you conferred so that
21 when you do come and address the Chamber, you have marshalled your
22 submissions and your thoughts collectively, and so that you also indicate
23 whether you would be -- are you in a position now to carry on with the
24 cross-examination of the witness. I thought doing that, you could confer
25 during the next break and maybe make your submissions at the beginning of
1 the next break. That's a point I'm throwing at you.
2 MR. HARVEY: I understand the Court's desire to crack on, if I
3 can put it that way. But with the greatest respect, I do not want to
4 proceed one step further without conferring with my colleagues at least
5 briefly --
6 JUDGE MOLOTO: Would you like a break now.
7 MR. HARVEY: I would, please.
8 JUDGE MOLOTO: Let's hear what you wanted to say, Mr. Emmerson.
9 MR. EMMERSON: Well, Your Honour, two separate questions arise
10 here. The first is the remedy necessary to enable these trial
11 proceedings to remain on track. That is an issue about which we will
12 undoubtedly need to confer.
13 The second question throw and it doesn't matter which way around
14 they come is: Having established the basic facts, is it appropriate at
15 this stage to invite the Trial Chamber to exercise its powers under
16 Rule 68 bis in relation to the imposition of sanctions.
17 Now as to that, I don't need to confer.
18 Can I just indicate to Your Honours what the position is and I'm
19 going to invite us to go into closed session briefly so that we can have
20 the chronology absolutely clear. Private session, briefly. And then, I
21 will in due course invite the private session to be released publicly
22 lest there should be any question that material is being withheld from
23 the public. But I think, out of an abundance of caution, we ought to go
24 into private session first because certainly in relation to one of these
25 documents as Your Honours know, a submission has been made that it cannot
1 be referred to in open session. I do not accept that submission and I
2 want to address you in private session before you rule upon it.
3 JUDGE MOLOTO: May the Chamber please move into private session.
4 [Private session] [Confidentiality partially lifted by order of the Chamber]
5 THE REGISTRAR: Your Honours, we're in private session.
6 JUDGE MOLOTO: Thank you so much.
7 MR. EMMERSON: Can I just deal with the chronology, first of all.
8 Before I do --
9 JUDGE MOLOTO: Let me give this warning. I think the Chamber at
10 the end of the day is going to ask for a written motion.
11 MR. EMMERSON: I understand that.
12 JUDGE MOLOTO: You understand.
13 MR. EMMERSON: I'm going to -- I've incorporated that --
14 JUDGE MOLOTO: To the extent that the you understand that it can
15 obviate you going through the chronology now, it would save us a lot of
17 MR. EMMERSON: It doesn't obviate the necessity for setting out
18 the reasons why and the basis for the nature of the order I'm going to
19 ask you to make.
20 Rule 68(i) is an obligation to provide disclosure which may
21 affect the credibility of the witness but it is an obligation to provide
22 that disclosure as soon as practicable. So it's no answer to a breach of
23 Rule 68 that I've given it to you now, if it should have been given as
24 soon as practicable at an earlier date. That is a breach of Rule 68. So
25 the question for Your Honours to consider is not simply where are we now,
1 but why are we where we are now, and should the Prosecution have given
2 this disclosure at an earlier stage.
3 Now you've heard various explanations from Mr. Rogers but I want
4 this to be absolutely clear about the chronology and what remains
5 outstanding. Yesterday you were addressed upon a letter from Mr. Rogers
6 directed to (redacted), this witness's attorney in the immigration
7 proceedings. You were provided with a copy of that letter, and as is
8 clear from the letter itself, it is a letter from Mr. Rogers to
9 (redacted) in response to an e-mail from (redacted) dated the 5th of
10 November, requesting a letter concerning this witness. We have never
11 received that e-mail, even now. So the request to which Mr. Rogers's
12 letter responded has still not been disclosed but that is point one in
13 this particular chronology. The 5th of November.
14 On the 18th of November, clearly knowing that this letter was
15 sought in response and in relation to an ongoing asylum application,
16 Mr. Rogers wrote a letter that supported the asylum application.
17 The next step is the e-mail dated the 2nd of February, so we've
18 got a gap between the 18th of November and the 2nd of February. And the
19 e-mail is directly to Mr. Versonnen from the witness saying that "one of
20 your paper with information has been received by my attorney." One
21 assumes since there's no other document being disclosed that the paper
22 referred to is the letter from Mr. Rogers. And certainly that appears
23 clear from the chronology.
24 He goes on to say:
25 [As read] "the information I gave to my attorney is like this: I
1 told my attorney that my brother was killed in the war. This is not
2 true. You know the truth. But I did this for the safety of my family in
3 Kosovo and myself and my wife in the (redacted).
4 "Now my attorney thinks that I am not telling the truth, which
5 truth is that my brother was killed after the war."
6 (redacted), and so forth.
7 "My attorney is telling me why you did not tell me the truth."
8 So here we have a situation where this witness having received
9 his attorney having received Mr. Rogers' helpful letter in support of
10 thinks then-refused asylum application is writing back to the Prosecutor
11 saying I need your help. That's the last line of it: "My case here is
12 in limbo I need your help for the safety of my life and my family."
13 To which Mr. Versonnen responds, "We will keep you informed and
14 bring it to the attention of the Prosecutor."
15 Well, we've received nothing either subsequent to this to show
16 what was done to keep him informed or what steps were taken thereafter.
17 But what we do have is a document which is the judgement of the, as
18 Mr. Harvey's pointed out to you, the (redacted), dated
19 the 26th of August, which Mr. Rogers told me just before we came into
20 court before Your Honours came into court, he had on Tuesday of this
21 week. So all the way we were having the argument yesterday this was in
22 the Prosecution's possession.
23 This is an application by this witness's attorney, based upon Mr.
24 Rogers's own letter for two alternative remedies: Reconsideration of the
25 (redacted) previous refusal, to overturn the decision of the
1 immigration judge, that application was refused; and alternatively,
2 remand to the immigration judge to reconsider his decision in the light
3 of Mr. Rogers's letter. That application was granted.
4 In other words, the witness got what he wanted from Mr. Rogers.
5 And from Mr. Rogers's letter. Namely, the overturning of a refusal of an
6 asylum application.
7 However, in that process, his own attorney was calling him a liar
8 because what Mr. Rogers had said did not accord with what he had said to
9 his attorney. I mean that is as far as one can divine the chronology.
10 Yesterday, in what we submit was a dissembling attempt to justify
11 the position of the Prosecution that the question of the asylum
12 application was relevant to credibility because he had lied in it, but
13 the assistance the Prosecution had given limb to have the decision
14 overturned was irrelevant, Mr. Rogers tried to suggest that there was
15 somehow no Rule 68 obligation on the Prosecution. That's why he was able
16 to say, and Your Honours remember the passage, it is now 917, line 4, to
17 918, line 10, from yesterday which I had put into open session. Where
18 Mr. Rogers led the witness in-chief on the lies or statements, rather,
19 that he had made in the asylum application in order as he conceded to
20 elicit evidence that was relevant to the witness's credibility. As
21 Your Honours know, he left us in a situation where the witness had
22 attested that he told the truth to the (redacted) when we all know
23 that he lied, including Mr. Rogers.
24 So that is the position.
25 Now, going back over this history, there can scarcely be the
1 slightest doubt that all of this material and all of these documents are
2 part of the story relevant to this witness's credibility. It is not
3 possible to distinguish between the lies he told to the (redacted)
4 (redacted) and the deal he struck with the Prosecution to get him a
5 letter assisting his asylum application which has now come to fruition
6 just yesterday and which was in Mr. Rogers's possession while he stood up
7 before you, making no reference to it, while we had an argument yesterday
8 about the Prosecution's conduct in these proceedings.
9 Going back to Rule 68(i): The obligation is to disclose as soon
10 as practicable and that's why the chronology is important. The 5th of
11 November letter from the lawyer. The 18th of November letter from
12 Mr. Rogers. The 2nd of February letter from the witness himself saying
13 his own lawyer is accusing him being a liar. The 2nd of
14 February response from Mr. Versonnen. All of those documents should have
15 been disclosed long ago and certainly the Prosecution cannot begun to
16 argue that they have met their Rule 68 obligation to disclose this
17 material as soon as practicable.
18 Would go further and say given the obvious significance of the
19 judgement was in existence and in Mr. Rogers' possession on Tuesday, he
20 is in breach of Rule 68 (i) for not disclosing that while we had the
21 argument yesterday.
22 Can I just ask Your Honours to imagine what the situation would
23 be if this material had all come to light at the end and after the trial?
24 So says Mr. Rogers, well, if I was being naughty I wouldn't have given it
25 to you in the first place. The duty is to disclose as soon as
1 practicable. Mr. Rogers clearly does not either understand or take
2 seriously his obligations of disclosure. The point is now being reached
3 at which the Trial Chamber needs to consider the imposition of sanctions,
4 and I don't need an opportunity to consult on that because it is
5 absolutely clear.
6 And so our application and the sanction that I would have in mind
7 is a reprimand. Our application is for Your Honours to give directions
8 now for the determination of a Rule 68 bis, a request for sanctions to be
9 imposed on Mr. Rogers personally in the form of a reprimand for the
10 manner in which he has conducted this disclosure exercise and the clear
11 breaches of Rule 68 of which he has been guilty.
12 If that is not done, given the entirely complacent attitude that
13 Mr. Rogers continues to take to his continuing breaches of Rule 68 in
14 relation to this witness, this Trial Chamber could not have any
15 confidence with future witnesses some of whom raise very similar issues
16 in very similar but perhaps even nor sensitive circumstances that
17 Mr. Rogers with be trusted. Cannot be trusted in the exercise of his
18 Rule 68 obligations. We saw that yesterday. What has happened here
19 today is proof positive that that's the position. What possible
20 explanation has he got for not disclosing a letter from the witness
21 himself to the Prosecution on the 2nd of February of this year, asking
22 for further help in his asylum application because what has been given so
23 far has revealed him to his own lawyer to be a liar. That says
24 Mr. Rogers, somehow, in la-la land that he lives in, isn't relevant to
25 credibility. It's time to take a grip on the situation, Your Honours.
1 JUDGE MOLOTO: Yes, Mr. Guy-Smith.
2 MR. GUY-SMITH: Yes, are we in open or closed session.
3 JUDGE MOLOTO: [Microphone not activated].
4 MR. GUY-SMITH: I would ask that we move into open session.
5 JUDGE MOLOTO: May the Chamber please move into open session.
6 [Open session]
7 THE REGISTRAR: Your Honours, we're in open session.
8 JUDGE MOLOTO: Thank you.
9 MR. GUY-SMITH: In addition to the application made by
10 Mr. Emmerson, with regard to personal sanctions concerning Mr. Rogers's
11 behaviour and performance, I would also remind the Chamber that there are
12 legal remedies available to it at this point in imposing sanctions with
13 regard to how this witness's testimony should be treated in -- in light
14 of the specific Rule 68 violations that have, thus far, been established.
15 Other than that, I join the remarks of my colleagues and because
16 you've asked for brevity, I'm not going to go further with my comments at
17 this time. Although I have a great deal to say. But at this time I'm
18 going to be finished for now.
19 MR. EMMERSON: Your Honour, can I just add this. As regards the
20 question of what should be in private session and what should be in open
21 session, without referring to the nature of the document, as Your Honours
22 know, Mr. Rogers has written a letter to the Defence disclosing a
23 particular document from an official body concerning this witness,
24 arising from the country in which is he is currently residing and the
25 letter disclosing that indicates that the lawyer acting for the witness
1 had been contacted by Mr. Rogers yesterday to inquire whether there was
2 any confidentiality attaching to that document and:
3 [As read] "He," that is the lawyer, "has informed us that this,"
4 the document, "should be treated confidentially and only referred to in
5 private session, especially as the witness has not seen or been made
6 privy to it himself."
7 With respect that is it not a reason for private session. There
8 is no reason why that document needs to be in private session. The
9 lawyer concerned is not in a position to dictate whether it should or not
10 be referred to only in private session. He has not asserted any kind of
11 legal privilege. Had he done so, it would be spelled out in the letter.
12 He is simply saying that because the witness has not seen it, it ought
13 not to be referred to in open session.
14 We disagree. There is no justification for that, and for that
15 reason, the submissions that I made in closed session, subject to
16 redactions of reference to the state concerned or any other identifying
17 language should in due course be released into open session.
18 MR. GUY-SMITH: I would join in those remarks and based upon my
19 experience in American practice, I don't believe there has been any basis
20 on which is these matters should be alluded to in private session. As a
21 general proposition, hearings are held publicly and transcripts are
22 available for public review.
23 JUDGE MOLOTO: [Overlapping speakers] ...
24 Yes, Mr. Harvey.
25 MR. HARVEY: Your Honours, I was careful when I was reading from
1 that document in private session to express myself in ways that could be
2 made public following the application that Mr. Emmerson has just made.
3 In other words, I believe I avoided any reference to the witness by name
4 or to the country in question by name, and I therefore apply that that
5 portion of what I read to Your Honours and that portion of our colloquy
6 should also be made public.
7 Thank you.
8 JUDGE MOLOTO: Thank you, Mr. Harvey.
9 Mr. Rogers, do you have any comments to make on everything that
10 has been said this morning?
11 MR. ROGERS: Yes. There's quite a lot that has been said.
12 Your Honours, dealing with Mr. Emmerson's application,
13 Your Honour, I would prefer to deal with that, given its highly personal
14 nature, I would prefer not to deal with that orally but to deal with it
15 by writing so that we can deal with the whole of the history fully and
16 properly and set it out clearly in writing in that document.
17 So far as the question of privacy, my understanding of that is
18 that these documents are treated confidentially and in private in the
19 state in which they come from. They're not publicly available. And to
20 accord respect to that judicial determination that they are not publicly
21 available, the reference to the documents should be in private session.
22 The primary reason is not that the individual has not seen it himself,
23 but that that is my understanding of how these documents are treated in
24 the country, which is why I made the inquiry that I did before any
25 disclosure of that was made. And, in addition, there is a question, and
1 certainly it was an operative question in my mind, as to the relevance of
2 it at that time. Subsequently, considering it only arrived on the day
3 when the Chamber was not sitting, given where we are as a result of our
4 discussions yesterday, I thought it right that the -- that document be
5 provided to the Defence.
6 Now, they seek to draw a conclusion from it, that, because
7 something was provided for the individual and a result occurred, that
8 there was some form of complicity in that outcome. That is simply not
9 the case. Mr. Emmerson has very strongly suggested that there was some
10 sort of deal. There was no deal and there never has been any deal with
11 the individual in question.
12 So I deal, then, with the e-mail, and that should have been
13 disclosed; I agree. And as soon as it came to my attention on the review
14 of this file, I -- which was this morning, shortly before we came to
15 court, I instructed that it be disclosed immediately to the Defence,
16 having looked at the document and clearly seeing the relevance, the
17 relevance is clear, as a result of the discussion we had, which is why we
18 provided it immediately to the Defence.
19 It should have been on the delayed disclosure list. It wasn't.
20 But it should have been. And as soon as I saw that that was an error, I
21 corrected it, immediately, by sending it to the Defence.
22 This is a delayed disclosure witness so the materials, any
23 materials relating to him, were only due for disclosure on the 18th of
24 July, subject to the order of the Court. And we did provide a lot of
25 material to the Defence relating to this witness, including the material
1 relating to his immigration status and the documents that Mr. Harvey
2 referred to yesterday. They have had since then to make further requests
3 and I understand the point that is made to Rule 68. But nevertheless
4 they have had since then to make further requests relating to
5 correspondence and information, et cetera, et cetera, concerning the
7 And the first indication of that came from Mr. Harvey when the
8 witness had already commenced his evidence in-chief. And since then, we
9 have been trying to address it as fairly and properly -- I know my
10 learned friends have said a great deal of personal things against me, but
11 I have been trying to deal with it fairly and properly and have provided
12 information in what I understand my obligations to be, and I have given
13 that to my learned friends as quickly as I could. And it also was of
14 concern to me that I had received, unsolicited, the decision of the
15 requisite body but in circumstances where it wasn't clear to me, first of
16 all, that I could even disclose it, and, secondly, whether it was
17 relevant given its nature.
18 My learned friends seek to draw connections but on one view the
19 outcome of the witness's asylum status, still uncertain as it is, is not
20 a relevant consideration. But in fairness, having reflected and
21 reviewed, I thought it right that they had it, so that they could, and I
22 expected what came, make the sort of allegations and accusations and
23 applications that they have. It's because I provided it, a devil if you
24 do, a devil if you don't. It's a question of whether it was done quickly
25 enough. And I've tried to explain the reason why. They now have it and
1 they can deal with it with the witness in such ways as they see fit.
2 In relation to the question of lies, that was something that was
3 brought up directly within the supplemental information sheet that was
4 provided by the Prosecution to the Defence as a result of speaking with
5 the witness during the course of the proofing that took place. Within
6 that supplemental information sheet, the documents that Mr. Harvey, or at
7 least some of the documents that Mr. Harvey has already identified, the
8 witness speaks to those, and agrees that he did, in terms, agrees that he
9 did lie on his immigration applications and the things that he said.
10 That material, and the underlying material, was provided to the Defence
11 back in July. That clearly goes to his credibility and was material that
12 I provided to the Defence as quickly as could be provided to them.
13 Your Honours, that's the position relating to the disclosure that
14 I've given. I have answered a number of the requests that have been
15 made, given that this request from Mr. Harvey was sent yesterday at ten
16 past 6.00, of course, we're all still in court until 7.00 or just after
17 7.00. And then, as a result of the proceedings yesterday, there were
18 quite a lot of things that I needed to discuss. So during the course of
19 the morning we have been looking at that request. It is not
20 straightforward. It is not normal for the Prosecutor to disclose
21 correspondence with outside states or entities or any other body in
22 relation to its activities in investigating these matters.
23 So that is not a normal request and it's not normally ordered but
24 I'm looking at it, to see whether -- to try to deal with the situation
25 that has arisen. That is something that we can do in this case or not.
1 But given that Mr. Emmerson has also made a further request, I think very
2 shortly before we walked into court, so as he criticises me, so I suggest
3 writing it before we come into court. That is also perhaps subject to
4 criticism, requesting basically all -- I did print it. Now I can't put
5 my finger on it.
6 MR. EMMERSON: It simply records the request that I made several
7 times on the record yesterday as a result of the non-disclosure that has
8 been occurring.
9 MR. ROGERS: [As read] "All communications and contact whatever
10 between the Office of the Prosecutor and any individual, state, body,
11 agency, or other organisation in respect of any witnesses in the case."
12 That's a pretty big disclosure request.
13 Your Honours can see how the Office has to deal carefully with
14 requests for correspondence because they are so broad and wide-ranging,
15 and are not often or usually relevant and generally are covered by
16 Rule 70 privilege in any event.
17 I just say that as a broad and general comment. The types of
18 areas that we're moving into by the types of requests that are being
19 made, and the Office has to respond sensitively, not just in this case
20 but having regard to the effect in other cases, of the position that it
21 takes. That takes a little while to coordinate. Where there is
22 information that is clearly, that is Rule 68, we do provide it. I know
23 we argue about that, and I've accepted that in relation to that one
24 e-mail it should have been disclosed; I accept that. Earlier. But we do
25 take the responsibilities seriously. As much as Mr. Emmerson wishes to
1 paint us as cavalier, uncaring, or yesterday, I think, Janus-faced was
2 the insult that I remember most clearly, that is not of the way I have
3 ever conducted myself. And, Your Honours, we will look at the requests
4 or deal with the response to the requests, as I have done throughout this
5 case, as quickly and efficiently as I can, addressing the issues that my
6 learned friend raise. What they don't, of course, tell you is the
7 significant amount of exculpatory material that we have disclosed
8 relating to witnesses. Some of it very significant, indeed. But that's
9 all forgotten when it comes to picking on these pieces as they go through
10 and make the type of broad and wide-ranging accusations that they do.
11 Now, Your Honours may have to make a determination in due course.
12 Mr. Emmerson's made his application and you'll have to decide what to do
13 with it. But in order to answer fully and properly to it, he needs to
14 put his application in writing and we will respond to it in writing and
15 Your Honours will, no doubt, deal with it as you see appropriate.
16 JUDGE MOLOTO: Thank you very much.
17 The Chamber did indicate at the beginning of Mr. Emmerson's
18 speech that we would like to save time and we'd like to have this in
19 writing, and everything that has been said this afternoon and possibly
20 even yesterday, that the Defence wants relief on, should be put on paper,
21 let whoever has to respond, respond to it properly, let the arguments be
22 clear to the Chamber what is, indeed, that the parties are complaining
23 about and what relief they want, and let the likes of Mr. Guy-Smith have
24 the opportunity to add what they couldn't add because they were
25 constrained by brevity. And once that has happened, I think the Chamber
1 will give its ruling. And I ask the parties to please put everything on
2 paper, not only with respect to disclosure, but also with respect to what
3 needs to go public that is private. And let it be identified clearly so
4 that when the Chamber does give its order it knows what it's giving an
5 order on.
6 I think that's only fair that I have --
7 MR. GUY-SMITH: I understand that you've said, Your Honour. And
8 in order to crystallise the issue and put it into writing, I would
9 specifically request at this time at a minimum the November e-mail from
10 (redacted) because it is a document that leave a huge hole in this entire
11 discussion and it's a document now that has been raised on a number of
12 occasions, and I would specifically request that the Chamber order
13 Mr. Rogers to divulge that document to the Defence so that we can put it
14 in writing.
15 JUDGE MOLOTO: This is my problem. I don't know what that
16 document is you're talking about, Mr. Guy-Smith.
17 MR. GUY-SMITH: It's the document that was discussed by
18 Mr. Emmerson when he was dealing with the chronology of events.
19 JUDGE MOLOTO: Sure.
20 MR. GUY-SMITH: It's a document. It is a letter from -- from
21 this witness's lawyer or an e-mail from this witness's lawyer to
22 Mr. Rogers to which he responded.
23 JUDGE MOLOTO: Right.
24 MR. GUY-SMITH: And I think Mr. Rogers is playing a very
25 dangerous game here, in terms of the way that he -- the way that he is
1 bleeding out slowly the information that he has within his possession.
2 MR. ROGERS: Your Honour, that's not the intention at all. I
3 know that's what my learned friend like to think.
4 One of the reasons I have not provided a full answer to the
5 correspondence question is precisely because I do not want to drip-feed
6 letter by painful letter to the Defence. That's not the right thing to
7 do. The right thing is to provide to them the full material that they
8 are entitled to, not in an individual, bit-by-bit basis. That is why
9 they have not had at this stage, the correspondence. There is a question
10 about the relevance of the correspondence itself. In this case, I
11 provided the letter. It's the letter that they're concerned about. That
12 is the thing that started this all off and that is why the -- the letter
13 to which it responds was not provided. Because the thing that matters is
14 the alleged intervention by the Prosecution into somebody's asylum case.
15 I don't accept the characterisation that Mr. Emmerson puts upon it at
16 all. He seeks to gloss it as an intervention. It is certainly not. It
17 was -- as I said yesterday, a neutral document that was used within
18 proceedings by the lawyer, yes. But that wasn't the intention of the
19 Office of the Prosecutor to assist, but merely to provide an account, as
20 I said yesterday.
21 JUDGE MOLOTO: Thank you, Mr. Rogers.
22 I just want to say that Mr. Guy-Smith, in response to what you
23 are requesting, make that request in the written document. Let
24 Mr. Rogers respond to you.
25 MR. GUY-SMITH: I understand that, but I don't want -- I've said
1 this before and I -- and I am beginning to believe at a certain level
2 that I must have either trouble hearing or I'm a broken record. I do not
3 wish to put the cart before the horse. I wish to be in a position to
4 fully ventilate the issue with the Chamber. This is an issue which is
5 extremely serious. And in order to responsibly deal with it in the
6 fashion that the Chamber has suggested, which is in writing, I do not
7 wish to be in a position where I am requesting disclosure in order to
8 make the point. We have been in this situation -- we have been in this
9 situation before with regard to other matters and without -- and I don't
10 want to at this point compound or confound some of the difficulties that
11 are going on in terms of some of the positions that have been taken by
12 Mr. Rogers.
13 I'm asking for a simple piece of disclosure so that I can
14 intelligently address what I believe to be grave breaches of the
15 Prosecutor's behaviour and the Prosecutor's obligation. To the extent
16 that it is going to impact upon this Chamber's fact-finding process, I
17 think it is important for me to have that information before I begin to
18 essentially speculate as to what that might be. Mr. Rogers takes the
19 position that I'm engaged in speculation and the Defence is engaged in
20 speculation and he is pure as the driven snow. Well, if he's pure as the
21 driven snow, then give us the information so that we're in a position to
22 analyse it and make a determination about whether his representations
23 here are, in fact, accurate or not.
24 JUDGE MOLOTO: Mr. Guy-Smith, once again, I say to you, it is not
25 possible for this Chamber at this stage to make a determination on that
1 request. You will have to -- if it has to be that you allege in your
2 written submission that there is further disclosure that the Prosecution
3 is refusing with and you want to draw inferences from that. By all
4 means, make those inferences and ask for the right remedy.
5 You are also wanting us to put the cart before the horse.
6 MR. GUY-SMITH: I'm absolutely not [Overlapping speakers] ...
7 JUDGE MOLOTO: [Overlapping speakers] ...
8 MR. GUY-SMITH: [Overlapping speakers] ... Here's the chronology
9 of what we're dealing with here, Your Honour.
10 JUDGE MOLOTO: You are aware of that document and what do
11 you want this Chamber to do? Pull it out of Mr. Rogers?
12 MR. GUY-SMITH: Tell him to do his duty. Tell him to act like a
13 proper Prosecutor; that is what I'm asking this Chamber to do.
14 MR. EMMERSON: Can I just suggest with respect that we try to
15 lower the temperature a little, have a little more light and little less
16 heat on the situation. Because it's clear that there are strong feelings
17 about what has occurred and I hope that Your Honours will understand that
18 if there are strong feelings in the way that there are from experienced
19 professional advocates, there's a reason for it.
20 So perhaps we could just take a moment to -- to look at the
21 sequence of events that we are dealing with right now. Because
22 Your Honour says to me, to each of us on this side of the bar, Put it in
23 writing. We have to go away now and have a consultation amongst
24 ourselves about what should happen with this witness. Now the position
25 at the moment is that Mr. Rogers is telling you that the letter he wrote
1 was not an intervention in this witness's asylum application. That's his
2 position. But just pause for a minute. We are saying, Give us the
3 letter to which you were responding so that we can see whether you're
4 telling the Chamber the truth.
5 JUDGE MOLOTO: [Overlapping speakers] ...
6 MR. EMMERSON: If I just develop my submissions. I understand
7 that Your Honour wishes to get to the conclusion. But I have to say,
8 it's not a question of cart before horse. We may have to have this
9 witness adjourned indefinitely.
10 JUDGE MOLOTO: [Overlapping speakers] ... That's true. But let me
11 just stop you there, Mr. Emmerson.
12 At this stage, when Chamber is asking you to make a submission,
13 so that it can make an order, if you do want to get that letter at this
14 stage you can get it by agreement from the Prosecution.
15 MR. EMMERSON: No.
16 JUDGE MOLOTO: You can ask him to give it to you [Overlapping
17 speakers] ...
18 MR. EMMERSON: [Overlapping speakers] ... We've asked him to give
19 it to us, he hasn't given it. So we're asking you to order it.
20 JUDGE MOLOTO: Mr. Rogers, are you still refusing to give this
22 MR. ROGERS: No, Your Honour. It's not a question of refusing to
23 give it.
24 JUDGE MOLOTO: Are you prepared to give it to them now.
25 MR. ROGERS: It's a question of trying to deal with it in the
1 round. That's all.
2 JUDGE MOLOTO: My question to you are you prepared to give it to
3 them now? Yes or no.
4 MR. ROGERS: Yes.
5 JUDGE MOLOTO: Okay. Give it to them.
6 MR. EMMERSON: Thank you for that. I'm sorry that it involved
7 such drawing of teeth. Because as Mr. Rogers is concerned not to give
8 drip-feed disclosure, piecemeal, letter by letter, but an comprehensive,
9 honest and open approach to disclosure, I'm sorry that you were drawn
10 into having to order that in this way.
11 Can I just finish my submission. Mr. Rogers has acknowledged to
12 you in the submissions he made a moment ago that he has been guilty of a
13 breach of Rule 68. He has told you that the e-mail of 2nd February, as
14 is obvious, should have been disclosed at the appropriate time. That is
15 a breach of Rule 68, unequivocally the case.
16 He is suggests that it only occurred to him on a review of the
17 file, and he's going to have to explain that because the e-mail that
18 responds to it from Mr. Versonnen says, "I will bring this to the
19 attention of the Prosecutor."
20 And, of course, the letter that it relates to was Mr. Rogers' own
22 So if he is saying to Your Honours he didn't know about the
23 e-mail, he is obviously going to have to explain that. But be that as it
24 may, even on his own position the only question that is going to arise on
25 these pleadings is what sanctions should you impose. Because he accepts
1 he is in breach of Rule 68. We do not accept that it is as confined as
2 he would like it to be.
3 JUDGE MOLOTO: You will ask for your sanctions, your relief, the
4 relief you ask, that you require in your submissions and the Chamber will
5 consider that.
6 MR. EMMERSON: Yes. But Your Honours will understand that there
7 are two, as I said to you at the very outset, there are two separate
8 questions: What should you do about the way Mr. Rogers is behaving and,
9 separately, how do we keep this trial on track? You just removed a
10 problem because Mr. Rogers's complete recalcitrance to his duty has had
11 to be the result -- had to be overcome with an order in which he wouldn't
12 even give you a straight answer three minutes ago. We're now in the
13 situation where there is also -- it's clear from Mr. Versonnen's response
14 to this witness on the 2nd of February, he says, "We will keep you
15 informed." There is obviously a whole lot of further correspondence that
16 postdates that communication as to what was going on between this witness
17 who was to quote, sir, his own e-mail, looking to the Prosecution for
18 their help at that point. There's obviously more. It is obvious.
19 Now are to go ahead with Mr. Rogers not yet understanding, still
20 now, what his obligations are?
21 JUDGE MOLOTO: Thank you, Mr. Emmerson, for that. I don't think
22 you expect an answer from me.
23 MR. HARVEY: Your Honours, I see the relief with which you were
24 able to breathe out and the horror you have at somebody else getting to
25 his feet. I get to my feet only for this: To say, I think, now, with
1 respect would be a good time for us to adjourn for a short time so that
2 the Defence can confer together and with our clients so that perhaps we
3 can allow the temperature in the courtroom to cool a little, so that we
4 can shed some light and take the heat out and so that we can consider
5 together, for instance, whether we're going to ask you to appoint a
6 special master to supervise disclosure since we clearly are dealing with
7 a Prosecution that does not understand the duty of disclosure.
8 But that's one of the things that we will be considering, if
9 Your Honours are kind enough to grant us an adjournment -- because we
10 want to move this case ahead. We most certainly do. Our clients have
11 been sitting for a long time waiting for this case to move ahead. But we
12 do not want their rights violated in the process.
13 JUDGE MOLOTO: We will then take a break and come back at 4.00.
14 Court adjourned.
15 --- Recess taken at 3.25 p.m.
16 --- On resuming at 4.01 p.m.
17 JUDGE MOLOTO: Mr. Harvey.
18 MR. HARVEY: Your Honours, first of all, may I thank you for
19 giving us time to consult together.
20 Secondly, may I notify you that the Defence has now been provided
21 with a copy of a document which contains the message that was sent
22 apparently on the 5th of November, 2010, by the attorney in the country
23 to Mr. Versonnen and it says at the top history this, Madam, has been
24 replied to and forwarded, whatever that may mean and at the bottom, it
25 indicates that this comes from Mr. Versonnen's computer dated yesterday
1 but for whatever reason did not form part of the package that was turned
2 over to us just before we came into court today. So we now have that.
3 Your Honours, I have discussed this with my colleagues, I have
4 discussed this with my client. As you recall, when we broke off
5 yesterday, I was in the middle -- actually, I was far from the middle, I
6 still beginning a review of this witness's conduct and statements to the
7 country's immigration authorities. I am not in a position to proceed
8 with any further questioning of this witness until I have full disclosure
9 from the Prosecution. I believe it would be grossly prejudicial to my
10 client's interest for me to ask him a single question more until I have
11 full disclosure. I'm very confident -- very cognisant of the Tribunal's
12 wish to get on, to move ahead, and if there were anything that I thought
13 I could responsibly do as advocate for my client to move this case ahead
14 with this witness, I would do so, but I ask you to accept from me my
15 assurance as an advocate of almost 40 years that I have never been in a
16 situation like this and I will not prejudice my client, with the greatest
17 respect, by asking a further question of this witness until I have the
18 disclosure to which I believe I am entitled. And we will, of course, be
19 putting those matters in writing to Your Honours with all due speed.
20 So that is my application: That the evidence of this witness
21 should be postponed until we have full disclosure.
22 JUDGE MOLOTO: Thank you, Mr. Harvey.
23 MR. EMMERSON: Can I indicate, first of all, I adopt and endorse
24 that approach. The document that Your Honours managed to elicit from
25 Mr. Rogers just before the adjournment, if read in conjunction with
1 Mr. Rogers' reply, we would invite you and will ensure that a copy is
2 provided to you to draw the inevitable inference that there is only one
3 reading of Mr. Rogers' reply which is that it was, indeed, a deliberate,
4 knowing, and intentional intervention by the OTP in this witness's asylum
5 appeal at the request of his lawyer. It is clear.
6 Now the reason I say that is because, first of all, Mr. Rogers
7 told you that it wasn't a few moments ago. And accused me of
8 mischaracterising it as such whereas the document that has now been
9 elicited confirms that that is exactly what it was.
10 Secondly, because of what Mr. Harvey is applying for now is an
11 opportunity to file written submissions, both on the question of
12 sanctions and on the question of remedies because it is clear that there
13 is a considerable body of further material relating to this particular
14 witness which Mr. Rogers has still not yet had prized out of his hands.
15 That being the case it would be wrong to proceed at this stage
16 without the issues having been resolved about prosecutorial conduct, the
17 consequences of that, both for Mr. Rogers but also more importantly for
18 the conduct of the trial.
19 JUDGE MOLOTO: Mr. Emmerson, I really don't want to interrupt you
20 in your address. Could the Chamber invite you to make all those
21 submissions as part of your written submission.
22 MR. EMMERSON: Absolutely. But obviously the issue at the moment
23 that Your Honours have to decide is whether or not the evidence of this
24 witness should stop at this point until those questions have been ruled
25 upon so it is important that you should understand that we -- it's not
1 simply a backward-looking question as to what has gone wrong so far but a
2 forward-looking question as in relation to this witness what is still yet
3 clearly undisclosed and relevant material and more generally we are about
4 to have a recess of three weeks.
5 The joint submission will address structural defects in the
6 Prosecution's approach to disclosure as exemplified by this witness. And
7 is likely to invite the Trial Chamber to make certain -- order certain
8 arrangements to be made to ensure it doesn't occur in the future.
9 There is one further witness to be called in the present session
10 who is the next witness in line. We are not inviting Trial Chamber to
11 suspend that witness's evidence until the Prosecution can be put in a
12 position where it conducts its duties properly, but I give notice now
13 that the time-frame for submissions and a ruling will need to take
14 account of the fact that it will be a firm submission of the Defence that
15 this trial should not resume until the motions that are about to be filed
16 and we will endeavour to file a single joint motion have been responded
17 to and ruled upon because there are witnesses upcoming in relation to
18 whom disclosure may be a very significant issue and in relation to whom,
19 we would submit, it would be, given what has happened so far, wrong, for
20 the trial to be permitted to proceed until a proper and responsible and
21 professional disclosure responsibility has been put in place, to ensure
22 that Mr. Rogers is not left as judge of his own cause.
23 So, in other words, we are inviting Your Honours to suspend this
24 witness's evidence. We are not inviting you to adjourn into the recess
25 now. We would be content to proceed with the next witness because
1 disclosure in relation to him is not an issue of such acute concern.
2 This witness will obviously have to be recalled in the next session, but
3 before the next session we would need to be clear and, certainly, we
4 would be inviting the Trial Chamber to have ruled upon and decided these
5 issues because it would be very wrong for this trial to continue with a
6 Prosecution who can't discharge its disclosure obligations.
7 JUDGE MOLOTO: Thank you, Mr. Emmerson.
8 Yes, Mr. Guy-Smith. I know you are renowned for brevity.
9 MR. GUY-SMITH: I request the matter with regard to this
10 witness's testimony be adjourned until the resolution of written
11 submissions. I join in the request made by Mr. Emmerson with regard to
12 the presentation of the next witness's testimony so that we can
13 meaningfully use the time that is left.
14 JUDGE MOLOTO: Thank you very much, Mr. Guy-Smith.
15 Mr. Rogers.
16 MR. ROGERS: Your Honours, we clearly need to resolve these
17 issues. I have no objection to the course of action that is being
18 advocated by my learned friends. We can get on with the next witness.
19 It is regrettable that this particular witness may have to go away and
20 come back again, particularly having regard to the personal circumstances
21 that he is currently under. However, I do think we need to resolve the
22 matters that have been raised, and I would -- I would concur.
23 JUDGE MOLOTO: Thank you very much, Mr. Rogers.
24 In that event, I want to suggest the following course of action:
25 That we move into closed session, invite the witness in, warn him about
1 his obligations that he is still in the witness-stand, and then we can
2 call the next witness.
3 Is that okay?
4 May the Chamber please move into closed session.
5 [Closed session] [Confidentiality lifted by order of the Chamber]
6 THE REGISTRAR: Your Honours, we are in closed session.
7 [The witness takes the stand]
8 JUDGE MOLOTO: Good afternoon, sir. You may be seated.
9 Sir, you might be surprised that you've been sitting outside and
10 not coming in to testify. There are a number of issues that have been
11 raised by the lawyers. As a result of those issues that they have
12 raised, it is not possible to continue with your further questioning.
13 You are going to be excused to stand down from the witness-stand. You
14 are not completely excused from further testifying. However, the issues
15 that have to be resolved may take a bit of time, and I'm not sure what
16 arrangements will be made, whether you will go home and come back or are
17 you stay around here pending the resolution of these issues but what is
18 of importance from our side is that you still on the witness-stand. You
19 are still barred from discussing the case with anybody, in particular,
20 with the Prosecution. You will stand down and until you are told to
21 return to the witness-stand. And make sure that when you are called upon
22 to come back, you avail yourself.
23 Thank you very much. You may stand down. Until you hear from
24 the Chamber.
25 THE WITNESS: [Interpretation] Thank you.
1 JUDGE MOLOTO: Okay.
2 [The witness stands down]
3 JUDGE MOLOTO: Mr. Rogers, do we still -- do we need to stay in
4 closed session for the next witness.
5 MR. ROGERS: No.
6 JUDGE MOLOTO: May the Chamber please move into open session.
7 [Open session]
8 THE REGISTRAR: Your Honours, we're in open session.
9 JUDGE MOLOTO: Thank you very much, Madam Registrar.
10 MR. ROGERS: Your Honours, Mr. Menon will deal with the next
12 JUDGE MOLOTO: Thank you very much, Mr. Rogers.
13 Welcome, and good afternoon to you, Mr. Menon.
14 MR. MENON: Good afternoon, Your Honours. The Prosecution called
15 Skender Rexhahmetaj.
16 JUDGE MOLOTO: Thank you.
17 While we're waiting for the witness, Mr. Menon, how do you
18 pronounce the witness's surname?
19 MR. MENON: I'm sorry, Your Honour. The surname is pronounced
21 THE INTERPRETER: The interpreters note it is pronounced
23 JUDGE MOLOTO: Thank you very much, madam.
24 [Trial Chamber confers]
25 JUDGE MOLOTO: While we're waiting for the witness, Judge Delvoie
1 seems to recollect that counsel for the Defence indicated that there is a
2 document that is not in the Chamber's possession that you promised to let
3 us have. And was wondering whether you would let us have it.
4 MR. EMMERSON: It's the document of the 5th of November e-mail to
5 which Mr. Rogers responded. Yes, I have copies for Your Honours. In
6 fact we collated them together with the reply. I know you already have
7 the reply, but if I give you three sets. I am afraid they're not
8 stapled. That's why I was sitting Your Honours, because I thought might
9 want to have it stapled.
10 JUDGE MOLOTO: We thought you might file them with the motion.
11 MR. EMMERSON: Well, they will come with the motion, but, I think
12 to give Your Honours advance notice and to put the response in proper
13 perspective, it might be an idea to see it now.
14 JUDGE MOLOTO: Thank you.
15 [Trial Chamber and Registrar confer]
16 [The witness takes the stand]
17 JUDGE MOLOTO: May the witness please make the declaration.
18 THE WITNESS: [Interpretation] I solemnly declare that I will
19 speak the truth, the whole truth, and nothing but the truth.
20 JUDGE MOLOTO: Thank you very much, sir. Good afternoon to you.
21 You may be seated.
22 THE WITNESS: Thank you.
23 JUDGE MOLOTO: Mr. Menon.
24 MR. MENON: Thank you, Your Honour.
25 WITNESS: SKENDER REXHAHMETAJ
1 [Witness answered through interpreter]
2 Examination by Mr. Menon:
3 Q. Sir, can you confirm for us that you're receiving translation in
4 a language which you understand and are comfortable with.
6 A. Yes.
7 Q. Thank you. And can you state your full name for the record, sir.
8 A. Skender Rexhahmetaj.
9 Q. And can you confirm -- and can you indicate what your date of
10 birth is again for the record, sir.
11 A. I was born on the 13th of October, 1969.
12 Q. And, sir, what is your place of birth?
13 A. Isniq.
14 Q. And in what country is that, sir?
15 A. It's in Decan municipality, Kosovo.
16 Q. Thank you, sir. And, sir, did you provide the Office of the
17 Prosecutor with a statement on the 24th of March, 2006?
18 A. Yes.
19 Q. And did you provide the Office of the Prosecutor at this Tribunal
20 with another statement on the 24th of September, 2010?
21 A. Yes.
22 Q. And since you arrived in The Hague, sir, have you had a chance to
23 review those statements in a language which you understand?
24 A. Yes, I had.
25 Q. And did you review those statements in Albanian, sir?
1 A. Yes. Yes, both of them.
2 Q. And, Your Honours, if we could call up 65 ter 03090.
3 And, sir, are those your initials at the bottom of the page?
4 Only the Albanian needs to be shown to the witness.
5 A. Yes.
6 Q. And if we could go to page 4 in both the English and the
8 Sir, is that your signature on the page in front of you?
9 A. Yes, it is. Yes, it is.
10 Q. And, sir, can you confirm for us that this document captures the
11 changes or - excuse me - the corrections which you had made to the
12 statements that you had signed on the 24th of March, 2006 and the 24th of
13 September, 2010?
14 A. Yes. This is the document that captures the corrections.
15 Q. And, sir, if questions were asked to you about the subject
16 matters covered in the statements which you signed on the 24th of
17 March and 24th of September, would your answers reflect what's in those
18 statements as corrected in this document?
19 A. Yes, it would.
20 MR. MENON: Your Honours, I would move for the admission of
21 65 ter 03043, which is the witness's statement of 24 September 2010.
22 65 ter 03058 which is the witness's statement of 24 March 2006. And
23 03090, which is the list of corrections to those statements, Your Honour,
24 signed by the witness.
25 JUDGE MOLOTO: Those 65 ter numbers, statements tendered are
1 admitted into evidence. May it please be given an exhibit number,
2 respectively, Madam Registrar.
3 THE REGISTRAR: Your Honours, 65 ter 03043 will be Exhibit P297.
4 65 ter 03058 will be Exhibit P298. And 65 ter 03090 will be
5 Exhibit P299.
6 MR. MENON: With Your Honours' leave I will read the 92 ter
7 summary for this witness.
8 JUDGE MOLOTO: You may, sir.
9 MR. MENON: Thank you.
10 The witness is a former KLA commander from the village of Isniq
11 in Decan municipality.
12 Following the armed confrontation of the Haradinaj family
13 compound in the Gllogjan in March 1998 steps were taken to organise a
14 military defence of the witness's village of Isniq. The witness was
15 appointed as a commander of his village defence. In organising the
16 defence of his village, the witness and his fellow villagers worked with
17 the KLA headquarters in Gllogjan. The witness went to the village of
18 Gllogjan in the second half of April 1998 where he met Ramush Haradinaj
19 for the first time.
20 The witness gives evidence relating to a meeting which he
21 attended in Gllogjan on 23 May 1998 and the military structure that was
22 created at this meeting. The structure was comprised of five subzones.
23 The witness was appointed as one of the subzone commanders. In his
24 evidence, the witness describes the role which Ramush Haradinaj played
25 within this military structure. The village of Jabllanice was not
1 included within the five subzones that were created on 23 May 1998.
2 The witness met Lahi and Nazmi Brahimaj for the first time at a
3 meeting which took place in the first place in the first half of June,
4 1998. The witness had asked Ramush Haradinaj to organise the meeting
5 with the Jabllanice KLA headquarters in order to improve cooperation with
6 their village. The witness approached Ramush Haradinaj because he had
7 better contacts with the Jabllanice KLA headquarters and knew those in
8 Jabllanice better. The witness confirms that Ramush Haradinaj officially
9 became the overall commander of the Dukagjin zone, including Jabllanice,
10 on 23 June 1998. According to the witness, operations between the
11 Gllogjan and Jabllanice KLA headquarters were coordinated on an ad hoc
12 basis prior to 23 June 1998.
13 The witness also gives evidence relating to Ramush Haradinaj's
14 relationship with and authority over Idriz Balaj.
15 That ends the 92 ter summary for this witness. I would ask, with
16 Your Honours' leave, to show the witness 65 ter 01264.
17 JUDGE MOLOTO: You may, counsel.
18 MR. MENON: And if the Albanian version could be shown to the
19 witness and both the Albanian and English versions shown for the rest of
20 the courtroom.
21 Q. Sir, do you see the document in front of you?
22 A. Yes.
23 Q. Can you tell us what this document is, sir?
24 A. This document is a record, I would say, of -- or the minutes of a
25 meeting that was held in Gllogjan in June.
1 Q. And, sir, do you recall what this meeting concerned?
2 A. The letter contains the points to be discussed on the agenda.
3 The first item is the establishment of the Dukagjini operational staff
4 and the duties of the operation command and what we should do regarding
5 the organisation of the formations, the staffs, the units, in that zone;
6 and then another element is -- that was discussed in this meeting was the
7 training of the units going from the individual to the collective
8 training, and the engagement of the command for the preparation of the
9 training programmes and issues of coordination among the units that would
10 operate in the Dukagjini operational zone.
11 Q. And, sir, do you see your signature on this document?
12 A. Not on this page.
13 Q. [Previous translation continues] ... Maybe if you go to the
14 second page in Albanian.
15 Do you see your signature on this page, sir?
16 A. Yes, I do. Yes, I see -- I see it.
17 Q. [Previous translation continues] ... Beside which --
18 A. It's the sixth -- can you repeat the question again? I didn't
19 hear it.
20 Q. Beside which number do you see your signature, sir?
21 A. Besides number 6.
22 Q. [Previous translation continues] ... is that the first reference
23 to 6 on the document, sir, or the second reference to 6 on the
25 A. I don't recall, but I know that that's the signature with my
1 name, my last name, my position. I have written it myself, but I don't
2 know whether it's the first or the second.
3 Q. No. I'm just -- do you see two references to the number 6 on the
4 document, sir?
5 A. The second one.
6 Q. [Previous translation continues]... Okay, thank you, sir.
7 MR. MENON: Your Honour, I would ask that document be admitted
8 into evidence.
9 JUDGE MOLOTO: The document is admitted into evidence. May it
10 please be given an exhibit number.
11 THE REGISTRAR: Your Honours, that will be Exhibit P300.
12 JUDGE MOLOTO: Thank you.
13 MR. MENON: Your Honour, I have no further questions for this
15 JUDGE MOLOTO: Thank you so much, Mr. Menon.
16 Mr. Emmerson.
17 MR. EMMERSON: Thank you, Your Honours. Just one moment.
18 Cross-examination by Mr. Emmerson:
19 Q. Mr. Rexhahmetaj, I'm -- want to ask you some general questions
20 about the emerging organisation and lines of command amongst the
21 developing KLA during the period from March through to --
22 THE INTERPRETER: Sorry to interrupt. I think there is no
23 interpretation in Albanian.
24 THE WITNESS: [No interpretation]
25 JUDGE MOLOTO: We know what the problem is. Is it because the
1 interpreters are not interpreting or is it because they're not coming
3 Mr. Court Usher, is the witness on the correct channel?
4 Could somebody in the Albanian booth say something? Testing,
5 testing. Let's hear whether the witness can hear.
6 THE WITNESS: [Interpretation] Yes, now I hear. Now I hear.
7 JUDGE MOLOTO: Thank you so much.
8 Sorry about that, Mr. Emmerson. You may proceed.
9 MR. EMMERSON:
10 Q. I'm sorry, Mr. Rexhahmetaj. We'll start again.
11 I want to ask you quite a large number of questions over the next
12 hour or so about the structures that gradually were put in place in the
13 emerging organisation of the KLA in the Dukagjin zone, between March 1998
14 and September 1998, and about lines of command. So I'm just letting you
15 know the sorts of topics that I want to ask you about.
16 And so it won't always be necessary for you to give us vast
17 amounts of detail. If you can listen to the question and try to answer
18 specifically the question that I'm asking you, if it is necessary to ask
19 you for further detail, then either I will ask you or the Judges will ask
20 you for clarification.
21 Do you understand?
22 A. Yes, I understand.
23 Q. So I want to take you back to the earliest part of this period,
24 first of all, to March 1998. Now, at that time, were you living in
1 A. Yes.
2 Q. So can we take it that you were in the Dukagjin zone consistently
3 from March 1998 through to September 1998?
4 A. Yes.
5 Q. And would it be fair to say that you had a good grasp from
6 information that was provided to you from a variety of different sources,
7 a good grasp of what was taking place in the organisation of the Kosovar
8 Albanian community?
9 A. Yes, I had. I was informed of the situation.
10 Q. And a good grasp, also, of the emerging structures that came into
11 operation within the KLA in that area.
12 A. Yes. I had a good grasp, beginning from April, actually, when I
13 assumed the responsibility for my village.
14 Q. Let me start, then, by asking you of how you came to assume the
15 responsibility for your village. I just want to get a sense, so the
16 Judges can get a sense, of how this type of thing was happening.
17 So let me ask you some specific questions.
18 During the course of March, is it right that there were three
19 attacks by combined Serbian forces on families associated with the
20 Kosovo Liberation Army, firstly the Jashari in Prekash; secondly, the
21 Tahirsylaj family in your own village of Isniq; and then, thirdly, the
22 Haradinajs in Gllogjan?
23 A. Yes. Your information is accurate regarding the events.
24 I want to explain, however, that during the attack on the
25 Tahirsylaj family it occurred at the end of January 1998.
1 Then we have the attack on the Jashari family. Everybody knows
2 what happened.
3 And then we have the attack on the Haradinaj family, on the 24th
4 of March in Gllogjan.
5 Q. Thank you for that clarification about the order and the dates,
6 and that's a good example of when additional detail is helpful.
7 Now, first of all, I want to put a specific suggestion to you, a
8 series of specific suggestions.
9 At that time would it be fair to say that the Jashari family and
10 the Haradinaj family were two entirely independent pockets, neither -- of
11 KLA activity, neither one commanding the other?
12 JUDGE MOLOTO: At that time where specifically? In March or for
13 the entire period, March to September.
14 MR. EMMERSON: No, no, no. At that time, I meant March.
15 JUDGE MOLOTO: March.
16 THE WITNESS: [Interpretation] Geographically speaking, Drenice
17 and Dukagjini or Decan are far away. But these families were, of
18 course -- lived in different locations. Militarily speaking, there
19 wasn't any connection between them. They were simply attacks mounted by
20 the forces of Serb occupiers against Albanian families.
21 MR. EMMERSON:
22 Q. I'll come back to the attacks and their aftermath in a few
23 moments. But, first I want you to give the Trial Chamber a sense of
24 these different concentrations of KLA activity and how they related to
25 each other.
1 So the question I want to put to you specifically is, that there
2 was no command structure by which the Jasharis commanded the Haradinajs,
3 or the Haradinajs commanded the Jasharis, was there?
4 A. No, there was not.
5 Q. And, similarly, we know from other evidence that the Brahimajs
6 had a concentrated KLA base in Jabllanice. They weren't commanding the
7 Jasharis, were they?
8 A. To my knowledge, no.
9 Q. They weren't commanding the Haradinajs either.
10 A. No. No, they weren't.
11 Q. So that the Chamber has the picture, you had pockets or groups of
12 people belonging to the KLA but within -- all operating -- maybe speaking
13 to each other but all operating with essentially separately around their
14 family bases. That is, up to the time of the attacks that we discussed.
15 A. You are talking about the time of the attacks? During those
16 months? I have no information or accurate information on the military
17 organisation because that didn't exist as such. They were separate
18 groups. I don't have information. I have no knowledge whether they had
19 any links. But I think it was very difficult for them to have any links
20 at that time.
21 Q. So I understand you might yourself not know of any possible
22 communications or anything of that kind on a limited level you may not
23 have any detailed knowledge. But you said to us just now, the military
24 organisation, that didn't exist as such. They were separate groups.
25 Can you just expand on that briefly, in your own words.
1 A. In the past periods, I was not involved in this. I wasn't part
2 of any political or military group. My involvements in the
3 Kosovo Liberation Army or the first armed groups dates back to the
4 beginning of April 1998. So I have no information about the existence of
5 such groups, their number, the way they operated. I wasn't there, part
6 of them, as I said. So my military activity begins in early April 1998.
7 It is from this period onwards that I can speak. Prior to that period, I
8 can give you nothing. Because I have no information.
9 Q. Very well. We'll -- I'll just ask you one further question on
11 When you said they were separate groups and the military
12 organisation didn't exist as such in March, prior to the attacks, can you
13 tell us what you meant by that?
14 A. Later on, in the later periods, I understood that there were
15 small groupings that were active in the 1990s. But personally I did not
16 belong to any of these groups. I don't know how they functioned. But
17 later on I received information that there were such small groupings in
18 the 1990s that were active then.
19 Q. Thank you. Now, in your particular village, in Isniq, the attack
20 on the Tahirsylaj family was an attack that had a profound effect on the
21 village and the surrounding areas; is that correct?
22 A. Yes. It was an attack mounted by the police forces, supported by
23 armoured vehicles, and they surrounded the compound of the Tahirsylaj,
24 and, as a result, there were two or three people who were injured.
25 Q. Injured or killed?
1 A. After their compound was surrounded, a few hours later, the
2 Serbian police got into the house and arrested two people. This was an
3 attack at the time when the Serbia repression had reached very large
4 dimensions, and they, now, did not attack only young people or
5 individuals on the street but families. This was another stage of the
6 Serbian repression on Albanians in Kosovo.
7 Q. Now, shortly after that attack, you've told us about the Jashari
8 family attack. In that attack, is it right that a large family was
9 literally wiped out, with every living person, from male adults to
10 babies, being killed?
11 A. Yes, that's correct. All the people there, men, women, the
12 elderly, children, babies were not spared. This was a very horrible
13 event, and it is known all over the world now, what the Milosevic forces
14 and policy did to the Albanian families.
15 Q. What I'm particularly want to ask you about is what effect that
16 had on the communities in western Kosovo. But, first of all -- just wait
17 for the question.
18 First of all, people regarded it and described it, did they not,
19 as a massacre?
20 A. The Prekash event shook the whole public opinion in Kosovo and in
21 the western democratic countries. And from that time on, the population
22 in Kosova felt very unsafe and very concerned.
23 Q. And in broad terms, did that then lead to a general perception on
24 the ground that there was a necessity for communities to arm and defend
25 themselves against similar attacks?
1 A. It was exactly these horrible events that we just mentioned made
2 the Albanian population to -- sit down and think, to find the form of
3 protecting themselves from these notorious attacks mounted on them by the
4 Serbian police and army forces.
5 So the civilian population could not find any other means to
6 protect themselves rather than just protect themselves.
7 Q. Focussing on your own village, in Isniq and perhaps the
8 surrounding villages, is it right that after the attack on the Haradinaj
9 family compound, the next one in line on the 24th of March, is it right
10 that, after that, young men from your village travelled over the
11 mountains and into Albania to bring back arms and weapons for your own
13 A. After these events, there were initiatives taken by small
14 groupings of young people in Isniq who were seriously thinking that they
15 had to face such situations in the future, because we had one such event
16 in Isniq that had already happened. Then the Gllogjan attack happened.
17 And ordinary people knew that the situation would become even more
18 complicated, and that's why small groupings of young people, young men
19 went to Albania to procure, to get weapons for self-defence.
20 Q. Now, at the time that those groupings of young men went, the time
21 they left Isniq to go to Albania, it's right, isn't it, that there was no
22 organised KLA in your village of Isniq at that time.
23 A. No. At that time, there wasn't. These were the first steps. It
24 was -- it was the initiative of ordinary people who felt they had to
25 defend themselves, and that's why they took it upon themselves to go and
1 get supplies of weapons.
2 Q. And did there come a time soon after that attack on the Haradinaj
3 compound, did there come a time when there was talk in the village about
4 trying to organise a village defence, i.e., not just having pockets of
5 individuals with guns who had been brought in from Albania but actually
6 trying to organise a village defence for Isniq?
7 A. Yes. There were such initiatives.
8 Q. And in that process of trying to organise the Isniq village
9 defence, I mean, it's right, isn't it that initially, at least it wasn't
10 a KLA village defence. It was just the village defence.
11 A. Yes, that's correct. That's how it went. It was the logic of
12 self-defence, self-protection. There was initiatives and opinions that
13 were expressed with regard to how to be able to face further attacks by
14 the Serbian forces because ordinary people were very concerned about the
15 future fate. And that's why young people took such initiatives.
16 Q. Pausing there for a minute, and still focussing on this period of
17 time, when the first steps were taken in Isniq to organise a village
18 dense, would that be at the beginning of April?
19 A. Yes. It was early April.
20 In the beginning, there was a small group that brought arms. By
21 the end of March, if I'm not mistaken, it was either the 27th or the 28th
22 of March. There were four weapons that were brought by a group of four
23 people to Isniq, but, at the time, I was not aware that they existed. It
24 was on the 2nd of April, or 3rd of April, that I became aware.
25 Q. I'm going to come to that, then, in just a second.
1 But just before we move on from that early period where the
2 village was -- young people in the village were bringing arms and there
3 were attempts to set up a village defence, just focussing on that period
4 for a moment. You've told us people were frightened. It's right, isn't
5 it, that Isniq was particularly impacted by the attack on Gllogjan
6 because, is it not right that the civilian population of Gllogjan, many
7 of them came into Isniq on 24th of March when they were fleeing from the
8 Serb attack?
9 A. Yes. The attack on Gllogjan frightened people. And each
10 village, the population of the villages generally began to think
11 seriously about defence, as a result of the attack on the Haradinaj
12 family in Gllogjan. And, at that time many civilians from that village
13 came to take shelter in our village, yes.
14 Q. And when you say "at that time," you mean at the time of the 24th
15 of March, when the Serbs attacked Gllogjan, many of the civilians from
16 Gllogjan tried to take refuge in Isniq. Is that right?
17 A. Correct.
18 Q. And so you said that in the first few days of April, I think you
19 said the 2nd of April, or the 3rd, you became aware for the first time
20 that within your own village there were youngsters with guns; is that
22 A. Correct.
23 Q. And did you become aware of that because you yourself were
24 approached to ask whether you would help try and organise a village
1 A. I was told by one of my cousins that there is a small group of
2 people who had weapons in the village, and they had asked him to ask me
3 whether I would be willing to help them and support them in organising
4 the defence of the village and -- in the village.
5 Q. These people had no uniform, did they?
6 A. No, they didn't. They were civilians.
7 Q. And they were not claiming to be representatives of any army,
8 were they? At that time.
9 A. No, they weren't. They were just people who were concerned about
10 the fate of the population of the village and they wanted someone to lead
11 them in defending the village. And when they had talked amongst
12 themselves, they had decided that I was the person who was able to lead
14 Q. And -- and the reason for that, as it was explained to you, was
15 it because you had -- yourself had military training and a short period
16 of military activity within the JNA?
17 A. Yes, correct. I graduated the Military Academy. I had relative
18 experience in the army. And they thought that I would be the most
19 appropriate person to support them.
20 Q. Now -- and you took up that invitation and agreed to be the
21 leader of the village defence; is that right?
22 A. Yes, correct. The moment I heard that they had expressed a wish
23 for me to lead them and learned from my cousin that they had four
24 weapons, three Kalashnikovs and one rocket-launcher, I accepted their
25 proposal to be their leader, and, at the same time, recommended to them
1 that, as they had decided to defend the village, they had to bring more
2 weapons to the village at the shortest time possible.
3 Q. And did you have a view as to whether there should be secrecy?
4 A. Of course. I recommended that there be secrecy, and I told the
5 person who contacted me that, "You have not talked to me about this."
6 Q. So even within the village, it wasn't known that you and these
7 youngsters were trying to organise a village defence; is that right? You
8 had to keep it secret even within the village.
9 A. Yes. Of course, it's normal that secrecy should be kept.
10 Q. That really you don't - can I put it this way and see if you
11 agree with it - that you would not want more people to know what you were
12 doing than was strictly necessary. A need-to-know basis.
13 A. At the beginning, yes.
14 Q. Now, can we take it that men from your village, at your
15 suggestion, did go and get more weapons?
16 A. Yes, you're right. In the following days, there were small
17 groupings that went to get supplies of weapons.
18 Q. Now, pausing there for a minute and changing focus away from the
19 attempt to arm certain people in the village, was there in Isniq, as in
20 all other villages in Kosovo, a structure within the village by which
21 community decisions were taken? A group of village leaders, in
22 peacetime, as well as in wartime?
23 A. Yes, there was a structure. Life was organised in the village,
24 and there was a chairmanship of the village that regulated life there; in
25 difficult times especially.
1 Q. That's how society in Kosovo was and, to some extent, still is
2 organised; is that right? With village leadership groupings chosen by
3 the community.
4 A. Yes, correct. It is a well-known fact that we have been through
5 very tough times, so people tried to find ways to organise their life in
6 the conditions of an occupation.
7 Q. And obviously these leadership structures in the village, they're
8 quite independent of any state structure imposed on Kosovo at that time
9 by Serbia; is that right?
10 A. Yes, of course. They were quite independent from the Serbian
11 government. But, at the same time, I should add, they were at risk. The
12 people in these committees were at risk, from the Serb government.
13 Because they did not obey the state mechanisms or state structures, and
14 they tried to organise life in the village, in order to have a modicum of
15 normality in the villages. There were certain councils that were created
16 in each and every village, I think.
17 Q. Thank you. In addition to that, it's right, isn't it, that these
18 village command structures - I don't mean the military command
19 structures, I'm talking about the village leadership groupings - that
20 they were independent of one another so the village leadership in Isniq
21 would be operating completely independently of, say, the village
22 leadership in Prilep. They fought, if you like, they were concerned
23 about the interests of their own people in their own village, and perhaps
24 the surrounding villages. Is that right?
25 A. Yes, that's correct.
1 Q. So what I want to explore with you now is the relationship
2 between this -- when this little village defence that you were trying to
3 set up and the village leadership. Did you have discussions with the
4 civilian leadership in Isniq about the village defence? Did you talk to
5 any of them. You told us it needed to be kept secret. Did you talk to
6 the civilian leaders of the village about what you were doing in Isniq?
7 A. Yes. Later on, I had meetings with them after I learned that
8 there were weapons in the village, and after the recommendation I made
9 for more weapons to come, after the second group and the third group went
10 to Albania to get weapons and the weapons came, I was invited to a
11 village Oda, to the council of the village, where we discussed the issues
12 further, because, at the time, there had come over 28 weapons, so we
13 could arm a platoon with them.
14 At this stage, I would say that we could have a better
15 organisation, and I thought that the village elders or leadership had to
16 be informed about the ways we thought of organising the defence of the
17 village, and that's why this meeting was held.
18 Q. So it was held to inform them. Were you also asking for their
19 approval or consent?
20 A. There is no interpretation.
21 JUDGE MOLOTO: Do we have a problem.
22 MR. EMMERSON: There's a technical problem.
23 JUDGE MOLOTO: Do we have a technical problem somewhere?
24 THE WITNESS: [Interpretation] Now there is interpretation. Thank
1 JUDGE MOLOTO: Thank you so much.
2 MR. EMMERSON:
3 Q. Sorry, the question I was asking you was: You told us you went
4 to inform the village elders. Did you also go to seek their approval or
5 consent to what you were doing in Isniq?
6 A. In reality, at that meeting, on the 12th of April I think it was,
7 when the young people had brought considerable amounts of weapons, I
8 recommended that three members of the village council be present, in
9 order for us to sit down and talk about what we were going to do in the
10 future. Because this was a stage where things were getting more serious
11 and we had to consult the village elders, in order to decide jointly and
12 to get their approval and the approval of the whole population for
14 Q. And just to be absolutely clear, you needed to consult with the
15 village elders and get their approval from the village elders in Isniq,
16 but you wouldn't have sought the approval of the village elders from any
17 other town or village, would you? It was your village elders that you
18 needed to have the agreement of; is that right?
19 A. I didn't need to get the approval of the elders of another
20 village. The way life was organised in the village, it was independent
21 [Realtime transcript read in error "wasn't dependant"]. And it was the
22 beginning, as well, so the people who had been appointed as village
23 elders had to be informed, consulted, and their approvals sought so that
24 we could decide what to do in the future.
25 Q. I know some of these questions may seem obvious, or the answers
1 may seem obvious, Mr. Rexhahmetaj, to anybody who has lived in Kosovo all
2 their lives, but they're not necessarily obvious in the context of
3 international Judges and lawyers looking at the structures in Kosovo,
4 just to explain why I may be asking you questions to which the answers
5 seem very obvious to you.
6 Now, if that is the position, would you agree with me that, as
7 you were forming your village defence, you were not taking instructions
8 from anybody outside Isniq?
9 A. Yes, that's correct. These were only the very beginnings of our
10 organisation because the population, the Albanian population, did not
11 have its own government. We did not have our own state. So we were
12 obliged under the conditions of the increasing repression to
13 self-organise, and these were just the beginnings of our organisation,
14 and they were independent of each other.
15 MR. EMMERSON: Your Honour, I'm -- it's pointed out to me there
16 is a transcription error at page 60, line 6, where the transcript reads:
17 "The way life was organised in the village, it wasn't dependant," and it
18 should, of course, it was independent.
19 JUDGE MOLOTO: Thank you so much.
20 On that note, Mr. Emmerson, would that be an opportune moment?
21 MR. EMMERSON: It would, Your Honour.
22 JUDGE MOLOTO: On that note, we will take a break and come back
23 at quarter to.
24 Court adjourned.
25 --- Recess taken at 5.15 p.m.
1 [The witness stands down]
2 --- On resuming at 5.46 p.m.
3 JUDGE MOLOTO: Mr. Emmerson.
4 MR. EMMERSON: Your Honour, yes?
5 JUDGE MOLOTO: You may -- I beg your pardon.
6 May we get the witness in, please.
7 MR. EMMERSON: I can't do it on my own.
8 JUDGE MOLOTO: Understood.
9 [Trial Chamber confers]
10 [Trial Chamber and Registrar confer]
11 [The witness takes the stand]
12 JUDGE MOLOTO: You may be seated, sir.
13 Thank you very much, Mr. Emmerson.
14 MR. EMMERSON:
15 Q. Mr. Rexhahmetaj, do you have translation?
16 A. Yes.
17 Q. Now, the picture that you've painted for us about Isniq and the
18 start of an attempt to organise village defences there, can you tell us,
19 please, from your own knowledge, it's right, isn't it, that the same sort
20 of pattern was taking place in all of the villages in that area, of the
21 formation of local village defences?
22 A. Yes. Yes, the same pattern was applied in terms of organisation,
23 which means that it was a matter of individual forms of organisations in
24 each village.
25 Q. All operating independently of each other with no central
1 command; correct?
2 A. Correct.
3 Q. Now, Isniq was fortunate in that it had a former JNA officer
4 living in the village, namely you, and there were other villages that had
5 individuals with military experience, such as Rrustem Tetaj; that's
6 correct, isn't it?
7 A. Yes, correct. Rrustem Tetaj, too, was a former JNA army officer.
8 Q. But there were lots and lots villages in the area who had no
9 individual with military experience in the JNA living in the village,
10 weren't there?
11 A. Correct.
12 Q. And there, in those villages, it would just be a farmer or a
13 local village leader who was put in charge of military defence; is that
15 A. Yes, that is right. In those villages where there were no
16 trained officers or soldiers, the inhabitants decided of their own free
17 accord on their own leader.
18 Q. I want to focus with you now on the period between the middle of
19 April and the end of May. That's the period I'm going to ask you about
20 now: The middle of April and the end of May, okay?
21 A. Okay.
22 Q. All the questions I'm asking you now concern that period.
23 First of all, it's right, isn't it that around about mid-April,
24 weapons started to come across more frequently and in larger numbers?
25 A. That's right. That's right.
1 Q. But still without any central organisation of these different and
2 independent village defences.
3 A. I would kindly ask you to repeat your question, because I wasn't
4 clear about it.
5 Q. Well, let me -- let me put the question in stages.
6 First of all, there was one incident, want there, one well-known
7 event when as many as 120 young men travelled across the mountains and
8 brought a large amount of weapons back to different villages in the
9 Dukagjin zone. Do you remember that?
10 A. That's correct. But it cannot be called an incident. It was an
11 initiative, to go and get weapons.
12 Q. Sorry, that's just a linguistic issue.
13 So we have the picture correct, that in the second half of
14 April and the beginning of May, there were large numbers of weapons
15 coming over the border being taken to a large number of different village
16 defences in different parts of the Dukagjin zone; correct?
17 A. Correct.
18 Q. And, at the same time, is it right that the Serbian forces in the
19 region were accumulating?
20 A. That is correct. If you allow me, I would like to make a minor
22 Initially, the Serb regime chose to send police forces, but these
23 forces were well-equipped, capable of conducting also military
24 operations. We saw less of military forces at that time, but they were
25 in readiness. We have no confirmed information but we know that, at that
1 time, there were also army officers who were donned -- in police uniforms
2 among the members of the police force.
3 Q. We -- I won't ask you a lot about the Serbian deployment because
4 we have other evidence about the build-up of Serbian forces in western
6 MR. EMMERSON: And for Your Honours note, that is particularly in
7 the evidence of Colonel Crosland, which has been admitted by agreement.
8 Q. But it's right that the Serb forces in western Kosovo had
9 overwhelming fire-power as against the village defences?
10 A. Correct. It was much larger fire-power than what we had.
11 Q. And would it be fair to say this: That really what was facing
12 you in Isniq and other leaders in other villages at that time, was a
13 choice between shooting back in the hope that you would keep the Serb
14 forces out, or just letting them rampage through the village and massacre
15 the entire population.
16 Is that how you saw it?
17 A. Our aim was to make our best -- to make it impossible for the
18 Serb forces to penetrate our villages who definitely aimed at massacring
19 and decimating the civilian population. That was our objective at the
20 time, our main objective.
21 Q. But given the build-up of Serbian forces and given the additional
22 number of weapons that were in the hands of various village defences, was
23 it your view, your own opinion at that time, the end of April, that it
24 was necessary to get some sort of coordination between these different
25 village defences?
1 A. Yes. According to the military rationale of action, that was the
2 case. This is what we did.
3 There were also demands by the elected representatives of the
4 villages sent to us, in this case to me, and they asked me when -- to
5 help them regarding organisational experience, to form units or -- or
6 staffs for the villages and so on.
7 Q. And so, was it then at the end of April, when you started to make
8 contact with the commanders of the village defences in the other
9 villages, such as Rrustem Tetaj?
10 A. Yes. There were village representatives who came for
11 consultation. As I said earlier, I, on my part, I saw it necessary after
12 we had formed the staff in Isniq on the 15th of April to study the ways
13 of how I could contact the others so that we had better coordination in
14 case of any eventual attack so that we could provide reciprocal
15 assistance to one another.
16 Q. I think it's probably right to say, isn't it, that, at the time,
17 in the end of April, in light of what had happened in Gllogjan on the
18 24th of March, the Haradinaj family were thought of as having a special
19 reputation because they managed to beat the Serb attack on Gllogjan; is
20 that right?
21 A. It is right. That family had a reputation, because it was the
22 first time for us to see a family managing to put up a resistance to the
23 Serb forces. So it gained a good reputation by so doing among the
24 population. And it was in light of what happened in Gllogjan and our
25 efforts at self-defence that I took the initiative to contact the
1 relevant people in the region to coordinate work among us, since my
2 village and the region were at the preparatory phase, and lacked the next
3 experience in case of any eventual attacks, whose size we didn't know at
4 the time.
5 Q. And just answering yes or no, is it fair to say that the success
6 of the Haradinaj family on the 24th of March in repelling the Serb
7 attempted attack on the village, was an inspiration to other village
9 A. Yes.
10 Q. And then was it with that in mind that, at the end of April, you
11 first made contact with Ramush Haradinaj?
12 A. Yes. This was the reason why I did so.
13 I don't remember very well, but I think this happened in the
14 second half. In the beginning of the second half of April, during which
15 time I insisted on meeting him and together with other members of the
16 staff, we went to visit Ramush Haradinaj in Gllogjan.
17 Q. And you went there because you thought that it would be a good
18 idea for these various village defences to try to coordinate, and you
19 wanted to discuss that with Mr. Haradinaj; is that correct?
20 A. That is correct. Coordination was one of the reasons, as I said
21 earlier, we were at the beginning of our organisation. They had more
22 experience than us, and we wanted to be ready for any eventuality, in
23 case of any Serb attacks. So having a horizontal form of coordination
24 was, in my opinion, necessary at the time. So to make sure that we
25 didn't continue with our isolated forms of organisations but be in a
1 position to provide mutual assistance to one another; that was the main
2 reason and aim.
3 Q. And is it right to say when you asked Mr. Haradinaj, when you
4 came with your proposal to Mr. Haradinaj at that first meeting about
5 coordination, that his response to you was that it may be too early,
6 because some of the villages just weren't sufficiently organised
7 themselves to be able to start talking in terms of a coordinated defence,
8 at that time?
9 A. It is correct. Yes, in the meeting we had together, he said that
10 we, as a village, but this applied to other villages as well in the
11 region, we should continue our efforts at organisation but that every
12 exposure of ours might jeopardize our resistance from the start.
13 Therefore, he was not in favour of making it very obvious, but would step
14 up our efforts so that in the near future we would find the best way and
15 the best form of organisation.
16 I have to say, that, irrespective of the circumstances, he said
17 that in case of any danger to the population, we should -- he should try
18 to find the ways to help us as much as he could. But try to avoid an
19 early exposure so that we didn't draw the attention of the Serb forces to
20 our resistance and which would ensue on an attack against us.
21 Q. Just give us a flavour of these discussions with Mr. Haradinaj.
22 I mean, can I put a proposition to you?
23 These were discussions between two men, yourself and him, I mean,
24 I appreciate there were others there, but these were discussions between
25 two men looking to find a cooperative way forward; is that right?
1 A. That is right. I was welcomed there, as I said earlier, I went
2 there together with the staff. We were about ten persons, and he
3 received us very well, indeed, and our discussion was sincere, our
4 exchange of views, and we came out happy with the outcome of the meeting,
5 even though we didn't realize the aim we went there for.
6 However, we left content, and we went back to our village.
7 Q. In fact, if we could just move further in time to -- to the 23rd
8 of May now, a few weeks later on, during those three weeks between the
9 end of April and the 23rd of May, attempts to organise had continued; is
10 that correct?
11 A. Yes, yes, they continued.
12 Q. The level of threat of attack from the Serbs had increased, as
13 you understood it; is that correct?
14 A. Yes, yes.
15 Q. And more of the villages in the area managed to establish some
16 sort of rudimentary village defence; is that correct?
17 A. That's correct.
18 MR. EMMERSON: Can we call up, please, P78. And then can we
19 enlarge the central section.
20 Q. First of all, just to give you a moment to look at the map and
21 the markings on it, just to familiarize yourself with the various
22 locations. You can see -- can you see Jabllanice? Don't mark the screen
23 at the moment because it will show on the map.
24 But can you see where Jabllanice is? It is in a red oval mark?
25 A. Yes, yes, I found it.
1 Q. And you can see the main Pec-Decan-Gjakove road running
2 north/south on the left side of the map?
3 A. Yes, yes.
4 Q. And can you please point us to Isniq, your village?
5 JUDGE MOLOTO: Would you like the usher to help you.
6 MR. EMMERSON: Yes.
7 Q. Perhaps you can just put a circle around your village?
8 JUDGE MOLOTO: May the usher please help you.
9 MR. EMMERSON: Oh, I see.
10 Q. Just give us a moment.
11 MR. EMMERSON: If we go back.
12 Q. Just bear with us for a moment, Mr. Rexhahmetaj.
13 Now would you circle Isniq, please.
14 A. [Marks]
15 MR. EMMERSON: And can I indicate just for Your Honours benefit,
16 you'll hear or there is reference in the evidence to Irzniq, which is a
17 different place from Isniq. Just an important point for you to realize.
18 JUDGE MOLOTO: If that is the case, may I just mention that what
19 we have been seeing on the transcript is Isniq, I-s-n-i-q.
20 MR. EMMERSON: Yes, that will do, because it doesn't have an R
21 after it. Obviously there is an Albanian and Serbian spelling of each
22 village. But Irzniq is a different village from Isniq or Istinic.
23 Q. Now, just pausing there for a moment, Mr. Rexhahmetaj, on the
24 23rd of May, is it right that a meeting took place in Gllogjan, where for
25 the first time the representatives of these different village defences in
1 this area of western Kosovo all came together to discuss the possibility
2 of organisation?
3 A. That's correct.
4 Q. And, of course, organisation had been, if I can put it this way,
5 a priority for you, hadn't it? It had been something you felt strongly
7 A. It was a priority and a necessity.
8 Q. And I'm going to ask you some questions about a later period.
9 But, generally speaking, is it right that throughout the period we're
10 talking about, May to September, throughout that period -- I'm sorry,
11 March to September, you were always pushing for greater organisation
12 whenever you could.
13 A. Yes.
14 Q. But it wasn't easy to organise any of this, was it,
15 Mr. Rexhahmetaj?
16 A. It was a very complex issue. It was difficult to organise. It
17 took time. Because, in addition to organisation, we had to face the war.
18 It was a burden on us, but with the passage of time, step by step, we
19 managed to set up the structure to empower the defence and so on. This
20 was dictated by the objective possibilities we had.
21 Q. Yes. Limited by the reality on the ground; is that right?
22 A. Yes, that's right.
23 Q. We'll look at some of those realities in the questions I'm going
24 to ask you, and how they limited your capacities for organisation in the
25 context of command structures.
1 But, first of all, I want to focus on that very first meeting
2 where everybody came together in an effort to try to, for the first time,
3 impose some sort of coordinated structure.
4 If you look at the map, can you see the numbers 1, 2, 3, 4
5 written on the map? Don't mark it for the moment. But can you see
6 they're written on there -- you see those?
7 And you see the areas that those numbers relate to? Can you see
9 A. Yes. Yes, I do.
10 Q. Now just for your information, this is a map that was -- those
11 markings were put on this map by Rrustem Tetaj describing the approximate
12 boundaries of the subzones that were agreed to be set up at that 23rd of
13 May meeting, okay?
14 A. Yes.
15 Q. Now, I'm not asking you to change the boundaries or comment on
16 any details of whether they're exactly correct. But broadly speaking, at
17 that meeting was it agreed to try to organise the villages into four
18 subzones, or five subzones, I'm sorry.
19 A. Yes. It was agreed.
20 Q. We'll look at the fifth subzone in a minute. But just focussing
21 on subzones 1, 2, 3, and 4, subzone 1 is the area in which Gllogjan was
22 situated; is that correct?
23 A. That is correct.
24 Q. And was it agreed at that meeting that that would be regarded as
25 one subzone with the leader being Ramush Haradinaj?
1 A. Yes. Yes, it was agreed.
2 Q. Subzone 2 is the area in which the village of Irzniq fell, is
3 that correct, or Rznic?
4 A. Irzniq, yes.
5 Q. And was it agreed that that would be set up under the subzone
6 command of Shemsedin Qeku?
7 A. Yes.
8 Q. Subzone 3, which included Gornja Luka and Donja Luka?
9 MR. EMMERSON: Which Your Honours can see as "D. Luka" and
10 "G. Luka" in the top left-hand corner.
11 Q. Subzone three, that was under the command of Rrustem Tetaj, is
12 that right?
13 A. Right, right.
14 Q. And, of course, subzone four, you were the village commander of
15 Isniq. Who decided that you should become the subzone commander for the
16 whole of subzone 4?
17 A. I would like to take a while, if you allow me to explain, to
18 explain the procedure of selection.
19 We were invited, two representatives of each village staff, local
20 staff were invited to attend the meeting at Gllogjan at that time. And
21 from Isniq, and from all the villages that were involved in the war, and
22 which might be potentially involved were invited. I cannot be accurate
23 about the exact number of villages present there. Maybe between 20 and
24 30. We met at an Oda which is a room where we went through two rounds of
25 selection, three actually, to come up with a structure at a horizontal
1 level. This is how I described it then, and how I'm describing it now.
2 Horizontal command.
3 During the first round --
4 Q. [Previous translation continues] ... Sorry, just pause there.
5 What do you mean by "horizontal command"?
6 A. By that, I mean when there is no vertical command chain. In my
7 opinion, that was -- that was horizontal. Horizontally spread in terms
8 of command. We had five commanders appointed for five subzones, and they
9 were unanimously elected by the representatives of the local village
10 staffs of all the villages present at that meeting.
11 In the first selection round, the representatives of the villages
12 could discuss among themselves, there were two from each village, and
13 they agreed who would take part in the meeting.
14 Q. [Previous translation continues] ...
15 A. This is the procedure -- the procedure that really happened.
16 Q. Can I just ask you to pause for a minute because we could go
17 through a lot of detail. Could I try to take it a little shortly.
18 First of all, this meeting, how long did it take from start to
20 A. I can't be sure about the exact time. Over two hours, I think.
21 Because the procedure itself, the selection procedure, selecting the
22 people who lead them, us, took long. I can't be precise about the time.
23 Q. And because it is going to become important in due course.
24 And the process by which these decisions were made were they made
25 with everyone having a say in the Oda sitting around in a circle in a
1 large room with only men?
2 A. Yes.
3 Q. And everyone expressing their opinion one by one?
4 A. Yes. Yes, that's it.
5 Q. And then decisions being reached by consensus and agreement.
6 A. Yes, yes.
7 Q. No one was telling anybody else from any other village or area
8 what to do or how to organise, were they?
9 A. There was no dictate. The will of every village was taken into
10 consideration during the selection process, to elect the people, you
11 know, that would be in command. This is to cut a long story short.
12 Q. [Previous translation continues] ...
13 A. The will of the representatives of the villages were taken -- was
14 taken into consideration, to -- to elect the people who would lead the
16 Q. And -- and, again, so that the Judges have the picture, was that
17 generally how decisions were always made within the KLA during the period
18 March to September, by decisions in which everybody had a voice and then
19 a position was reached by agreement? Or --
20 A. Yes. The decisions were taken like that. Generally, every
21 decision that was taken and every selection of a structure that was made
22 within the KLA in the Dukagjin operational zone was done through
23 expressing the free -- each person expressing their free will and
24 respecting the will of the individual himself. Nothing was imposed on
25 anyone. If I, for example, did not want to take on a certain
1 responsibility, I could refuse, and somebody else was appointed. But it
2 was our collective will to do what we could to do our best to have a
3 structure in order to have a successful resistance towards the Serbs.
4 Q. That's helpful. But -- but just to take it one stage further, so
5 that the Judges can understand why that would be and why this would
6 continue to be the position, I mean, is it fair to say that, first of
7 all, that there was no state or legal authority behind any of you?
8 A. Yes, that's correct. We did not have a state at all, as you all
9 know, and the situation imposed upon us, this participation in war, and
10 all this organisation was occurring because people wanted to defend
11 themselves and the Kosovan people were under threat. The threat of
12 whether they were going to exist anymore or not.
13 Q. Mr. Rexhahmetaj, can I just make one general comment. This is
14 not a criticism at all because your evidence is extremely important. But
15 your answers are getting a bit longer as we go on.
16 If you could just try to keep them a little shorter, and if I
17 need to ask you a second question, I will. Because, otherwise, we've got
18 quite a lot of material to get through.
19 Is that -- I hope you won't take that rudely.
20 A. I understand.
21 Q. So given that you had no legal authority behind you, is it right
22 to say that throughout that period that we're concerned - with
23 March through to September - getting individuals to do what you needed
24 them to do was always about consent and persuasion, rather than the
25 issuing of orders that could not be enforced?
1 A. The only form was by consent. In taking decisions, we operated
2 by consent because we did not have any legal power or any authority given
3 to us by a state in order to give orders to anyone. We wanted to help.
4 We wanted to help our homeland, our people, and on these sound bases, we
5 wanted to have decisions based on consent and consensus, not by imposing
7 Q. You mentioned that there's a fifth subzone which is not shown on
8 this map. Is that the subzone that was established around Voksh and
9 Drenoc under the command of Adem Ukehaxhaj?
10 A. Yes. This was the fifth zone. I apologise, but I don't know the
11 exact villages included in the zone. I know that Voksh was one of them
12 and the commander of that zone was Adem Ukehaxhaj, who was a career
14 Q. So the judges have it clear, I'm not going to ask you to mark it
15 because you don't know the precise villages, but that subzone was on the
16 west side of the main Pec-Decan-Djakovica -- Gjakove road?
17 A. Correct.
18 Q. And we've heard evidence from Bislim Zyrapi, that when he visited
19 in July, that zone was so cut off from the subzones on the east side of
20 the road that it could not be effectively incorporated. Is that your
22 JUDGE MOLOTO: Yes, Mr. Menon.
23 MR. MENON: Your Honours, just a clarification. I believe that
24 Mr. Zyrapi testified that he did not visit the village of Voksh.
25 MR. EMMERSON: His testimony was that he visited that subzone on
1 the west side of that road, that it had been impossible to incorporate it
2 because of the communication disruption caused by Serb military
3 manoeuvres and presence on the main Pec-Decane-Djakovica road.
4 MR. MENON: Perhaps Mr. Emmerson can put the reference to the
5 specific area that Mr. Zyrapi refers to in his evidence because it's
6 [Overlapping speakers] ...
7 MR. EMMERSON: I obviously can't do that on my feet. Let me ask
8 the witness his testimony.
9 [Trial Chamber confers]
10 MR. EMMERSON:
11 Q. Just looking at your own knowledge of the situation,
12 Mr. Rexhahmetaj, the subzone that existed on the west side of the main
13 road, is it right that that subzone was physically and militarily cut
14 off? And you can answer that question yes or no for the time being.
15 A. Yes, you can say that it was cut off. Isolated.
16 Q. Now, after the meeting on the 23rd of May, I now want to
17 concentrate on the period of time between that meeting on the 23rd of
18 May when these subzones were set up and another meeting that took place
19 on the 23rd of June in Jabllanice, so it is that period I want to
20 concentrate on. And you remember Mr. Menon took you to a document dated
21 the 24th of June in your evidence earlier on this afternoon, concerning
22 the appointment of different commanders.
23 Do you remember seeing that document?
24 A. The document I was shown earlier is a simple document. And I
25 remember the time when we signed it. The aim of the signing was to
1 confirm that we attended the meet.
2 Q. Yes, I'm not asking you about that document at the moment. I
3 want to ask you about the period of time, the month, that took place
4 between the establishment of these four subzones on the 23rd of May, and
5 the meeting that happened in Jabllanice on the 23rd of June that
6 Mr. Menon has already asked you about. I'm looking at that month now.
8 A. Okay.
9 Q. So --
10 A. The document -- can you ask the question again, please.
11 Q. I haven't actually asked a question yet. What I'm saying is the
12 questions I'm about to ask you concern that month between the meeting
13 that the subzones were established on 23rd of May and a later meeting, a
14 month later, in Jabllanice. Okay? I'm looking at that month now.
15 And, first of all, we can see for ourselves that Jabllanice was
16 not incorporated within those subzones that were established on the 23rd
17 of May. That's correct, isn't it?
18 A. That's correct.
19 Q. It was operating independently of the coordination that was
20 agreed at that time. Correct?
21 A. Yes, correct.
22 Q. Now, first of all, what were communications like during that
23 month? How easy was it for the subzone commanders to communicate with
24 each other, first of all?
25 A. It was difficult to communicate, because the communications
1 network and equipment did not exist, if at all -- they did not exist.
2 And what we had, they were very -- of poor quality. And if we needed to
3 communicate with each other or request something, we sent people in
4 person or we met in person with each other.
5 Q. Now, on the 29th of May - that's just six days after the
6 establishment of these subzones - was there a major Serbian offensive
7 against your village?
8 A. That's correct.
9 Q. And was it also against other villages in your subzone,
10 Strellc i Eperm, Boriq, Kryshec and so forth?
11 A. Yes, yes.
12 Q. And did you manage to keep the Serbian forces at bay with the
13 help of fighters from other villages?
14 A. On the 29th of May, there was a Serbian offensive of large
15 proportions and there were attacks in the area of Isniq and there were
16 other directions of attacks towards Strellc i Eperm, Lugu i Baranit,
17 Perroi i Gervalles, Rashiq, and on the same day, there were other attacks
18 outside the subzone in Kodra e Vranocit. This was a large-scale attack
19 and all the villages were active in organising resistance. And in the
20 end, we were able to keep them at bay.
21 I just wanted to add that the villages helped each other, and
22 there was voluntary support that came to our aid from other villages.
23 For example, Shemsedin Qeku came from Irzniq with 30 men. But because we
24 had large numbers of people ourselves, we did not use that formation in
25 our defence.
1 Q. Thank you very much for that. Generally speaking, you've talked
2 about the -- the problems that there were in getting anything organised
3 militarily amongst the village defences because you were engaged in
4 fighting of Serbian offensives. Where was Ramush Haradinaj most
5 frequently engaged during this period of May to June?
6 A. Ramush Haradinaj was mainly engaged in his own zone, and we had
7 contact with each other. I think it was once a week. This was to
8 analyse the situation in each zone. We thought that this was necessary
9 to have some sort of coordination and in order to be aware of the
10 situation in each zone during the fighting and what things we needed to
11 change, if any.
12 Q. Pausing there for a minute, again, during this period between the
13 23rd of May and the 23rd of June, were the five subzone commanders all of
14 equal status?
15 A. Yes. They were of equal status.
16 Q. So that Mr. Haradinaj may have had -- or the Haradinaj family may
17 have had a special reputation for their success on the 24th of March, but
18 they were not commanding you, were they?
19 A. No. They were not commanding us. But we had a lot of respect
20 for the Haradinaj family and Ramush Haradinaj, and we proposed that there
21 should be a person who would coordinate our work and we proposed Ramush
22 to be our coordinator. And, of course, Ramush accepted that task as he
23 accepted other tasks which had to do with the improvement of our
25 Q. You're referring now, I think to the meeting on the 23rd of June;
1 is that right?
2 A. No. I'm referring to the 23rd of May.
3 Q. [Previous translation continues] ...
4 A. We were appointed representatives or responsible people for the
5 five subzones and at that time we had this discussion of how we would be
6 able to keep contact in the future. And because of our respect for him,
7 we proposed that Ramush would be the coordinator who would coordinate the
8 work and we would have regular meetings amongst each other. He was the
9 person who had actually fought the Serbs, so we respected him for that.
10 Q. And in that month we're discussing, 23rd of May to 23rd of June,
11 although you may have had regular contacts with Mr. Haradinaj, can I put
12 to you, it's true, isn't it, that he never once issued you an order?
13 A. Yes, that can be said. We discussed in meetings about the way
14 how we would solve problems, and we decided jointly. So there were no
15 orders in the sense of orders given in an advanced normal army. The
16 notion of an order did not exist. There was consensus, and consent after
17 we agreed on something, then the decision was taken to act upon it.
18 Q. Now, is it right that it was your idea that -- that there should
19 be greater coordination between the subzones and the KLA base in
20 Jabllanice? It was you who was suggesting that there should be greater
21 communication, because Jabllanice -- partly because Jabllanice was
22 recruiting young men without you necessarily knowing who they were or
23 where they were coming from.
24 A. After we became the people responsible for the subzones, it is
25 logical and it makes military sense that a person who is responsible
1 militarily, or from the command point of view, should know what's going
2 on in the area.
3 It was not a matter of reporting, of -- or being accountable to
4 some -- to someone. But there were requests for fighters from a certain
5 area to go to Jabllanice. I didn't think that was very much of a
6 concern, but professionally, I thought that it was important to ensure
7 that every initiative, every request, because I was responsible for a
8 certain zone, the person who was responsible for the area in question,
9 for the zone in question should be contacted. Any kind of request, not
10 only supporting with fire-power, but any other request. This was a time
11 when we were teaching other people how to communicate within the military
12 structures, and I discussed this with Ramush and I insisted to have some
13 sort of communication so that requests coming from Jabllanice or any
14 other place should be coordinated and we should be -- should -- aware of
15 them and respond to them to our best ability at the time.
16 Q. Thank you. But just maybe a short answer, in very short
17 yes-or-no form, it was your suggestion, wasn't it, that there should be
18 this meeting on the 23rd of June to try to establish greater coordination
19 with Jabllanice.
20 A. Yes. Yes, this was a suggestion from the organisational point of
21 view. I thought it was necessary to do that because before that time
22 there had been a request by Jabllanice village.
23 Q. Again, try to keep your answers just a little bit shorter if you
24 can. And again, no discourtesy, I'm not intending any discourtesy but we
25 need to try to keep time moving on.
1 MR. EMMERSON: Can we please look at P191 which is the minutes of
2 that meeting.
3 Q. Mr. Menon took you to a document that postdated the meeting but
4 we actually have the minutes of the meeting itself which is P191, please.
5 JUDGE MOLOTO: Before we do that, Mr. Emmerson, what do you want
6 to do with this map the witness has marked.
7 MR. EMMERSON: I imagine that ought to be marked as an exhibit.
8 JUDGE MOLOTO: The document is admitted into evidence. May it
9 please be given an exhibit number. That was P78, am I right?
10 THE REGISTRAR: Your Honours, the marked map which was taken from
11 Exhibit P78 will now be given exhibit number D145.
12 MR. EMMERSON: Thank you.
13 So we were looking for P191.
14 Q. Whilst that document is being brought up, Mr. Rexhahmetaj, let me
15 just ask you a couple of questions about this meeting.
16 First of all, was it the first time you'd ever been to
18 A. Yes, that was the first time.
19 Q. In fact, was it the only time during 1998 that you ever went to
21 A. As far as I remember, yes.
22 I think I accompanied an officer one day.
23 Q. [Previous translation continues] ... let me stop you there.
24 Because we don't need all the details. The point I was trying to get to
25 with you was simply this: It's right, isn't it, that travel to
1 Jabllanice was dangerous and difficult.
2 A. Yes. Yes, it was like that because it was far away, and it was
3 isolated as an area.
4 Q. Pausing there, you would tend to -- people, if they had to go to
5 Jabllanice, would have to travel at night, by and large, and with the
6 lights on their vehicles turned off; is that right?
7 A. I don't know what other people did when they travelled there.
8 The night we went there, we used additional security measures during our
9 travel there.
10 Q. Did you have your headlights turned off?
11 A. In some portions of the road, yes. I can't remember exactly. We
12 were in the car, myself and two other people. They tended to use them on
13 and off.
14 Q. And is that because there were Serb military formations with
15 long-range artillery stationed on high ground such as Suka e Biteshit and
16 all of the high points, Suka e Radonjicit and so forth so that you needed
17 to ensure that you couldn't be targeted by long-range weaponry.
18 A. Correct. Because the lights of the car could make us -- could
19 expose us to them and that's why we masked them.
20 Q. So is it again fair to say that, generally speaking, those of you
21 who were engaged on the western side of the zone close to the main road
22 would only make the journey to Jabllanice when it was strictly necessary?
23 A. Can you please repeat the question.
24 Q. Given the difficulties of travel to Jabllanice, is it correct to
25 say, I'm suggesting to you, that those of you who were commanders on --
1 of the four subzones, 1, 2, 3, and 4, would make that journey only if it
2 was strictly necessary.
3 A. Yes.
4 Q. Thank you. And we can see this is -- we have the full minute
5 here in the screen in front of you of the meeting of the 23rd of June at
6 Jabllanice. And we can see that you I think -- just to be absolutely
8 MR. EMMERSON: Sorry, have we got the right -- I think this is
9 the wrong minute. It's the wrong minute. Let me look at the last page.
10 [Defence counsel confer]
11 THE WITNESS: [Interpretation] Can I have ten minutes, please, if
12 possible, a break.
13 MR. EMMERSON: We're going to break in ten minutes is that --
14 inevitably, we are going to break in ten minutes, I think.
15 JUDGE MOLOTO: We are, but depending on what the needs of witness
16 maybe we should break.
17 MR. EMMERSON: A little earlier.
18 JUDGE MOLOTO: Or maybe you respond to him now.
19 MR. EMMERSON: So respond to him as in respond to his request to
20 rise at this point.
21 JUDGE MOLOTO: Indeed.
22 MR. EMMERSON: Yes, well, I think.
23 JUDGE MOLOTO: You want ten minutes to stand down? Would it be a
24 convenient time?
25 MR. EMMERSON: It may be a convenient time to break for the day.
1 I don't have a great deal more for this witness but I can finish in less
2 than half an hour tomorrow.
3 JUDGE MOLOTO: In response to your request, Mr. Rexhahmetaj,
4 we'll break off now. Remember, you are still on the witness-stand. You
5 are not excused yet. You're still coming back tomorrow to come and
6 testify. Because of that you may not discuss the case with anybody, in
7 particular, not from anybody from the Prosecution.
8 You are excused until tomorrow at quarter past 2.00 in the
9 afternoon, in the same courtroom. You may stand down. And have a good
10 rest tonight.
11 [The witness stands down]
12 JUDGE MOLOTO: I guess we can stop here for the day.
13 MR. EMMERSON: Your Honour, yes. I don't think -- unless anybody
14 else has anything they want to raise in the last ten minutes.
15 JUDGE MOLOTO: That would be very kind of all of you if there
16 were nothing to raise. Thank you very much. Well, we stand adjourned to
17 tomorrow, quarter past 2.00 in the afternoon.
18 Court adjourned.
19 --- Whereupon the hearing adjourned at 6.55 p.m.,
20 to be reconvened on Friday, the 2nd day of
21 September, 2011, at 2.15 p.m.