110902ED

Page 1068

1 MR. HARVEY: Good afternoon, Your Honours. Richard Harvey

2 assisted by Mr. Paul Troop and Mr. Luke Boenisch for Mr. Brahimaj.

3 JUDGE MOLOTO: Thank you so much.

4 May the witness please be brought in.

5 [The witness takes the stand]

6 JUDGE MOLOTO: Good afternoon, you may be seated.

7 Just to remind you that you're still bound by the declaration you

8 made at the beginning of your testimony to tell the truth, the whole

9 truth, and nothing else but the truth.

10 THE WITNESS: [Interpretation] Yes.

11 JUDGE MOLOTO: Thank you so much.

12 Mr. Emmerson.

13 MR. EMMERSON: Could we have Exhibit P191 back up on the screen,

14 please.

15 WITNESS: SKENDER Rexhahmetaj [Resumed]

16 [Witness answered through interpreter]

17 Cross-examination by Mr. Emmerson: [Continued]

18 Q. Mr. Rexhahmetaj, you are receiving translation?

19 A. Yes, I am.

20 Q. And we're going to return now to the minutes of the meeting in

21 Jabllanice on the 23rd of June, at which a co-ordination attempt was made

22 by ascribing names and ranks to individuals in an attempt to improve

23 co-ordination across the zone and to improve links with Jabllanice. And

24 yesterday you told us, first of all, that this was your suggestion, this

25 meeting, in order to improve co-ordination. And you told us that this

Page 1069

1 was the first time you had been to Jabllanice, a place you said that was

2 difficult to reach because of the dangers involved in crossing that

3 terrain and a place which commanders on the western side of the zone

4 would only visit when it was strictly necessary. You recall giving us

5 that evidence yesterday?

6 A. Yes.

7 Q. So if we can just start by looking at the list of names at the

8 top of the minutes, indicating those present. You, I think, are recorded

9 simply as Skenderi in the second line of the typed version and of the

10 Albanian; is that correct?

11 A. Yes, that's correct.

12 Q. Now, I don't want us to go through the details of who said what

13 at this meeting because they're there for all to see, but is it fair to

14 say - and you -- first of all, you've seen these minutes, haven't you,

15 they were showed you by the Prosecution?

16 A. Yes, yes.

17 Q. It's fair to say that this was a discussion in which, as you

18 described earlier on, everybody had their say; correct?

19 A. Yes.

20 Q. And decisions were reached by consensus, as they always were; is

21 that right?

22 A. Yes, correct.

23 Q. And at the end of the meeting was it agreed that these two sides

24 of the Dukagjin Zone which had been operating really without consultation

25 should now try to come together in some sort of agreed command; is that

Page 1070

1 fair?

2 A. Yes.

3 Q. And so the question came up, did it not, who would then be

4 chosen, nominally at least, to be the head of this newly formed joint

5 force; is that right? Who would lead it or be its titular or nominal

6 head; did that come up?

7 A. Yes.

8 Q. And is it right that there was really -- there were really two

9 possible candidates. No one suggested that you should be the overall

10 leader, did they, Mr. Rexhahmetaj, or Mr. Qeku or Mr. Tetaj?

11 A. No, there were no such proposals.

12 Q. There was some support for the idea that Lahi Brahimaj should be

13 made commander; is that right?

14 A. Yes, initially there was a proposal that he be the commander.

15 Q. Do you remember who put that proposal forward, from memory?

16 A. I can't remember, but if I'm not mistaken it was Rexhep Selimi

17 who proposed him. I'm not sure.

18 Q. And there was also the suggestion that Ramush Haradinaj might

19 take that title; is that correct?

20 A. Yes.

21 Q. Do you remember who suggested that?

22 A. As far as I recall, the first one to suggest Ramush Haradinaj was

23 Sali Veseli.

24 Q. And then was there a discussion amongst all of you about who

25 might be the best person and a consensus decision reached?

Page 1071

1 A. Yes, that's correct.

2 MR. EMMERSON: Can we just, please, look at the very end of each

3 of these documents. It appears on the final page of both the original

4 and the English translation. Well, perhaps I'm wrong, it doesn't appear

5 on the last page of the English translation. It must be -- the list is

6 what I'm concerned with. There we go. It's the bottom half of that

7 English translation and the top half of the Albanian.

8 Q. Can we see there at the very end of that meeting the lists of

9 names that were given, titles that were ascribed to various people?

10 A. Yes.

11 Q. But looking at that list, I want to suggest to you, it would be

12 completely wrong to infer that from that moment onwards vertical lines of

13 command were established in the way that that list might suggest?

14 A. Yes, you can say that. This was a meeting where proposals were

15 made and names were ascribed to this line of vertical command structure,

16 but there is no decision. This is the minutes that the minute-taker has

17 noted down what was said in the meeting.

18 JUDGE MOLOTO: Can I just --

19 MR. EMMERSON: Yes, I'm sorry.

20 JUDGE MOLOTO: Just for clarification, sir, I see on the list of

21 people who attended the meeting, I don't see the name of

22 Mr. Lahi Brahimaj, unless maybe I'm making some mistake. Is it correct

23 that he was given this position in absentia?

24 MR. HARVEY: Your Honour, I may be able to help there if --

25 JUDGE MOLOTO: No, I just want the witness to help me.

Page 1072

1 MR. HARVEY: The name is there, that's why I'm saying it.

2 MR. EMMERSON: He's under a different name, in other words,

3 there's a nickname.

4 MR. HARVEY: It's Lahija and Maxhupi appear both at the very

5 beginning of the page, but it is accepted that that is Lahi Brahimaj.

6 JUDGE MOLOTO: Thank you so much. That helps me much better.

7 You may proceed.

8 MR. EMMERSON:

9 Q. You told us yesterday, Mr. Rexhahmetaj, that throughout the

10 period that I asked you about from March to September there were no

11 effective vertical lines of command in functioning operation on the

12 ground. That's what you told us yesterday. Is that correct?

13 A. Until the 23rd of June when the staff was established, there was

14 no such structure. Upon the establishment of the staff and the

15 appointment of people to it, in a way you can consider this as the

16 creation of a vertical line of command at the zone level. However, as I

17 emphasized earlier, the selection and appointment of people at all levels

18 of responsibility was based on their free -- the free will of the people

19 who were appointed. They accepted the responsibilities. There was no

20 order given to them. Everything was done by consensus in the meeting,

21 which is of course a far cry from what you normally do in a normal army,

22 especially appointing commanders at high levels of command.

23 Q. Yes. And even after the 23rd of June, it remained the position,

24 did it not, that Ramush Haradinaj did not, for example, issue you with

25 orders?

Page 1073

1 A. We always proceeded in the same way. The co-ordination and all

2 the activities were carried out in the same way as before the 23rd of

3 June. We discussed together, we analysed the situation, and we took a

4 joint decision, and there was no order to tell people what to do. We

5 evaluated the situation on the basis of what was going on in the ground

6 and notified the people who were responsible for several areas, and we

7 decided jointly, by consensus, and did not give any orders. These were

8 instructions and not orders. And later on, when we had meetings even

9 after the establishment of the structure, we proceeded in the same way.

10 We analysed the situation and acted upon the things that we decided on

11 together. We decided and told people what to do and then we discussed

12 what was done in the next meeting.

13 Q. Pausing there for a minute. You've been -- had already been

14 trained within the command structures of a conventional army. I would

15 just like you, please, to explain for the Trial Chamber as shortly and

16 succinctly as you can, perhaps in a sentence or two, what the differences

17 were - just try and encapsulate what the difference was, after the 23rd

18 of June, even after the creation of these theoretical vertical

19 structures, what the differences were between the reality of what was

20 happening on the ground within the KLA in the Dukagjin region and what

21 you would have expected from command responsibility in a conventional

22 army.

23 A. Of course there are differences because the organisation of the

24 staff means that there should be orders issued by the staff and then

25 accountability. For example, the commander of the zone is there and

Page 1074

1 there is a deputy commander, and there are people who were responsible

2 for various military areas. That's who will report to the commanders.

3 This is what happens in a conventional army. However, here we have to do

4 only with the beginnings of such a structure. The first attempt to try

5 to create a military structure, and we were hoping that by creating these

6 structures and regular formations we would be able to do something. But

7 we did not have a rules book, we did not have any other regulation. This

8 was just common sense that we followed by -- in creating this kind of

9 command, this kind of staff. The situation was very difficult. We were

10 under a lot of pressure because of the high concentration of Serbian

11 forces in the Dukagjini area. Their presence was far beyond any logical

12 presence that you could expect in those circumstances, and we had to

13 respond to such a situation on the ground and to go a step further,

14 create a vertical command structure, which in the future would be

15 completed and empowered and strengthened and function better in the

16 future.

17 Q. Pause there. Pause there for a minute. So what we see on paper

18 here is a blueprint for what might happen at some unspecified point in

19 the future when the structures were sufficiently in place for there to be

20 operational command; is that fair?

21 A. Yes, approximately. I would like to give you an example. For

22 instance, I was an anti-armoured artillery --

23 Q. Can I interrupt you. Can you slow down because I think the

24 interpreter is having difficulty keeping up with you and this is rather

25 important. Can you go back to where you said "for example" and you were

Page 1075

1 about to give us an example of your position on this list which I think

2 was in response to my question that this was really a blueprint for some

3 unspecified point in the future. So you were going to say yes,

4 approximately, and you started to say for example. Can you pick it up

5 and speak slowly from there.

6 A. Yes. I will take my case and speak about it. My responsibility

7 was as deputy commander for the anti-armoured unit; however, I could not

8 discharge that responsibility because we did not have the equipment and

9 we were not able to ensure any kind of equipment in order to have

10 anti-armoured units. So this was a blueprint of how we would function in

11 the future. This is a skeleton of the responsibilities that we were

12 going to cover in the future. None of the functions here could be

13 applied and realised in most of the cases. Maybe only the Chief of Staff

14 could discharge his function because he would inspect and have

15 co-ordination between the zones. However, even this was more theoretical

16 than practical. While the other ones that you see here, people who had

17 to do with technical equipment, this was impossible to discharge. If

18 we -- if the situation was -- would be as we expected it to be and we had

19 the equipment and the technique and everything, then we could discharge

20 our functions, but we didn't. So we did not discharge our functions.

21 This is my opinion on this.

22 Q. Can I ask you - with the interpreter's help - do you understand

23 what I mean by the word "aspirational"?

24 A. Yes.

25 Q. Would it be fair to say that these were aspirational titles?

Page 1076

1 A. Yes, yes.

2 Q. So, for example, do you know Muhamet Berisha, do you remember

3 him?

4 A. No, I can't recall.

5 Q. You can see he was given the important responsibility of being

6 responsible for chemical and biological defence.

7 A. Yes.

8 Q. That was simply a title with no content, wasn't it?

9 A. Yes. This was a position that would require very complex duties

10 to be discharged. I have never seen this person, I don't know him. But

11 a person who is responsible for chemical and biological defence had to be

12 a professional. However, in Kosovo we did not have a lot of professional

13 people in the military area. So we had to use the people that were

14 available in order to organise ourselves.

15 Q. Now, you told us yesterday that until the 23rd of June meeting

16 you personally had never received an order from Ramush Haradinaj. You

17 were subzone commanders of equal rank even though he was your

18 co-ordinator, you told us yesterday, and you never received an order from

19 him before the 23rd of June. Do you remember telling us that yesterday?

20 A. Yes, I remember that and that stands. I told you that everything

21 that was done was done on the basis of --

22 Q. Just focusing on the question as narrowly as you can for a

23 moment. I'm going to suggest to you that that remained the position

24 after the 23rd of June, that you never received an order from

25 Ramush Haradinaj to do so or not to do anything militarily within your

Page 1077

1 subzone after the 23rd of June.

2 A. Yes. The subzones and the responsibilities of the subzone

3 commanders continued. We continued to work on functionalising the

4 positions and the responsibilities even after the 23rd of June.

5 Q. And in practical terms, after the 23rd of June the relationship

6 between the subzone commanders, in practical terms, remained horizontal?

7 A. Yes, it remained horizontal in reality, which means that no one

8 could give orders to the other. Everything was done by consensus. It

9 remained the same.

10 Q. So even though in this aspirational blueprint Ramush Haradinaj is

11 listed as commander of the Dukagjin Zone, commanding a chemical weapons

12 unit and so on, the reality on the ground continued after the 23rd of

13 June to be a situation in which each commander operated independently of

14 one another in consultation but without orders being issued. That is a

15 compendious suggestion I would like you to comment on, please.

16 MR. MENON: Your Honour, I just have one comment on that

17 question. It seems to be a little confusing, it refers to

18 Ramush Haradinaj commander of the Dukagjin Zone, commanding a chemical

19 weapons unit, that's how it reads on the transcript.

20 MR. EMMERSON: That's what I said. The point I'm making is these

21 are ludicrous titles. Perhaps I'll put the question a bit more shortly.

22 Q. I'm going to put to you a suggestion, Mr. Rexhahmetaj, and I

23 would like you to agree with it or disagree with it. My suggestion is

24 this, that even though in this document which you've told us was an

25 aspirational blueprint and no more, even though in this document

Page 1078

1 Mr. Haradinaj is listed as commander of the Dukagjin Zone, I suggest to

2 you that the reality on the ground after the 23rd of June remained as it

3 had been before, namely, that the commanders of the various subzones

4 continued to operate independently of each other without orders being

5 issued by anyone, by any one commander. That is my suggestion.

6 A. Yes, yes, that's right. As I already explained earlier.

7 Q. Thank you very much. And just to put a little flesh on the bones

8 with a few supplementary questions before I conclude, for example, you

9 never needed to ask Mr. Haradinaj's permission before you sent people

10 over the border to get weapons, did you?

11 A. I didn't need to ask his permission, but I co-operated with him

12 about the way how to go about it. But I didn't need to ask for any

13 permission.

14 Q. You didn't need to seek his consent before choosing how and where

15 to deploy volunteers under your command, did you?

16 A. No, no.

17 Q. And just as a matter of fact, no suggestion of any criticism at

18 all in any of this, it's just to get the picture straight. But we know

19 that in July a large contingent of soldiers entered Kosovo under the

20 banner of the FARK led by Tahir Zemaj. That's correct, isn't it?

21 A. That's correct, yes.

22 Q. And shortly after they entered, they assisted in the battle that

23 took place on the 6th of July in Loxha; is that right?

24 A. Yes, that's right. They not only assisted, but they bore the

25 main brunt of that battle.

Page 1079

1 Q. Now, at some point in July, once they became settled - and we'll

2 just have a few words in a moment about how they became settled - but at

3 some point in July is it right that of the seven or eight villages in

4 your subzone, you assigned a number of men, I think 84 in total, to join

5 the FARK soldiers under the command of Tahir Zemaj?

6 A. Those recruits that I trained and sent to the territory of

7 Albania on their own request was in June, not in July.

8 Q. I'm so sorry. I'm so sorry. So that we're clear, you sent them

9 at their request to join with the group of men under Tahir Zemaj's

10 command who then entered together on the 1st or 2nd of July?

11 A. Yes. I received a letter which requested that we select about 50

12 recruits from the two villages to complement that unit that would enter

13 Kosova, and this is what I did, I sent the recruits.

14 Q. And just to get -- just to be absolutely clear about this issue

15 of autonomy, all I'm interested in for this purpose is the fact that

16 you're able to make these decisions autonomously, independently. Before

17 you sent those 84 men over the border to join with the FARK forces, you

18 did not consult with Ramush Haradinaj, did you?

19 A. No, I did not.

20 Q. Because as an independent commander in a horizontal structure,

21 you were free to make your own decisions without his approval; is that

22 correct? Without his express approval. He trusted you, but you could

23 make your own decisions.

24 A. Yes, that's correct.

25 Q. In short, and I'm just going to summarise it with you now,

Page 1080

1 Mr. Rexhahmetaj, even after the 23rd of June and right up until, let us

2 say, the end of September, even during that period of June, July, August,

3 September, you were dealing with a force made up of volunteers; correct?

4 A. Yes, correct.

5 Q. Who could be volunteering for the KLA some of the time and

6 civilians, not engaged at all in the hostilities, at other times;

7 correct?

8 A. Correct. And I describe this as a component of territorial

9 defence, which is not very effective but which can help organise defence,

10 because they were ordinary folks. And after doing their shift, they went

11 back home and other people replaced them. So we didn't have military

12 bases to base them. Some of them were with uniforms, some without

13 uniforms. It was a people defending themselves.

14 Q. And so -- and so would you agree with me that one of the reasons

15 why a commander from subzone -- from a particular subzone could not

16 impose his will on another subzone was because everybody was volunteering

17 and everything had to be agreed by consent?

18 A. Yes, correct.

19 Q. But there was also another reason which you told us about right

20 at the beginning of your testimony yesterday in some detail, which is

21 that these areas, these concentrations, these towns and villages where

22 commanders had been appointed, were fiercely, culturally jealous of their

23 independence from one another. Would you agree with that?

24 A. I would kindly ask you to repeat the question.

25 Q. Another reason why everything had to be done by consensus was

Page 1081

1 because culturally in western Kosovo - as you told us yesterday - these

2 towns, which were concentrations of KLA activity, were fiercely jealous

3 of their independence. They protected their independence from one

4 another. They wouldn't want another leader from another town telling

5 them what to do because that would break the consensus, wouldn't it?

6 A. It's correct because these people who were appointed were

7 appointed through the will of the local people, going through the rounds

8 I mentioned. So the arrival of everyone else to command, to take over

9 the command, was -- didn't make sense to them. So I think that they

10 wouldn't agree. I believe they wouldn't have liked that, because they

11 trusted us and I believe that we did a good job, given that the objective

12 circumstances.

13 Q. Now, just to conclude, in your evidence as a whole we've really

14 talked about six subzones, the four that were marked on the map I showed

15 you by Rrustem Tetaj, the one that you've told us about which was on the

16 western side of the road around Voksh, subzone 5, and the zone

17 surrounding Jabllanice which is sometimes referred to as Dushaka --

18 Dushkaja, I'm sorry.

19 A. Yes, yes, that's right.

20 Q. And even after the 23rd of June, right up, let us say, until the

21 end of September, it was not possible, was it, for the commander of any

22 one of those zones to march into another one and tell the people there

23 what to do and what not to do as an order?

24 A. Unless it was asked for, otherwise it was not possible.

25 Q. And that remains the position despite this aspirational blueprint

Page 1085

1 remember.

2 Q. And at that meeting where the minutes record Lahi was appointed

3 as the deputy commander of the Dukagjin Zone, do you from your own

4 knowledge, sir, know that about ten days after that, Ramush Haradinaj

5 issued, first, a warning and then a reprimand to Lahi because he was not

6 fulfilling his duties because he was absenting himself from the zone? Do

7 you have personal knowledge of those matters, sir?

8 A. No, I do not.

9 Q. And finally, just this, were you aware that on the 4th of July

10 Ramush Haradinaj issued an order dismissing Lahi as the deputy commander

11 and appointed Nazmi Brahimaj as the deputy commander in his place?

12 A. No, I am not aware of such an order. I didn't have any

13 information to that effect.

14 Q. Very well. I have no further questions. Thank you, sir.

15 JUDGE MOLOTO: Thank you very much, Mr. Harvey.

16 Mr. Menon, any re-examination?

17 MR. MENON: Just a few questions, Your Honour.

18 Re-examination by Mr. Menon:

19 Q. Sir, yesterday you were asked by Mr. Emmerson the following

20 question, and it's in relation to your visit to Gllogjan in April 1998.

21 The question was:

22 "And you went there because you thought it would be a good idea

23 for these village -- various village defences to try to co-ordinate and

24 you wanted to discuss that with Mr. Haradinaj; is that correct?"

25 And the answer which you gave which is at transcript page 1046,

Page 1086

1 lines 20 to 23 was the following:

2 "That is correct, co-ordination was one of the reasons. As I

3 said earlier, we were at the beginning of our organisation. They had

4 more experience than us and we wanted to be ready for any eventuality in

5 case of any Serb attacks."

6 Sir, when you said yesterday that "they had more experience than

7 us," who were you referring to?

8 A. I was referring to Ramush himself and the boys who had overcome a

9 challenge fighting Serb forces. They already had had the first

10 encounter, the first exchange of fire, whereas we were still at the

11 beginning of our organisation. That was why I said "they might have

12 greater experience than us," and I wanted to learn from them. At the

13 same time, I wanted to assure myself that in case of any eventual attack

14 they would provide assistance to us, because we were at the beginning, as

15 I said, of our organisation and we were lying in wait of any potential

16 attack. That was why I went there.

17 Q. And, sir, when you referred to "experience," can you elaborate on

18 any other things that you might be referring to. Are there any other

19 things that you're referring to when you said that "they had

20 experience -- they had greater experience than us"?

21 A. I already explained that there they had had the first exchange of

22 fire, and I merely wanted to assure myself that in case of any future

23 attacks they would support us. I think that for anyone who has not tried

24 himself in such a case, in car, wants some support, wants to feel more

25 confident and would be in a better position to co-ordinate our activities

Page 1087

1 to reach the final objective of pan popular mobilisation in war against

2 Serbia.

3 Q. Sir, I want to ask you about something else. The 23 May 1998

4 meeting about which you gave evidence yesterday, sir, can you tell us who

5 organised that particular meeting?

6 A. The 23rd May meeting, for that meeting we received an

7 invitation - and I believe that was the case also with other

8 villages - which indicated the venue of the meeting and saying that two

9 representatives from the village should go and attend the meeting that

10 was going to be held on that day at that place. That was the information

11 contained in that invitation that we received.

12 Q. And from whom did you receive that invitation, sir?

13 A. I don't know who brought it to the staff, but it said that it

14 came from Gllogjan staff and then it read, as I said, that two

15 representatives from the village are invited to take part in the meeting

16 to be held on that day at that hour, as was specified, along with the

17 place where it was going to be held. That was the content of the

18 invitation.

19 Q. And, sir, at that time who was in charge of the Gllogjan staff?

20 A. Ramush was responsible for Gllogjan, as I was responsible for

21 Isniq [Realtime transcript read in error "Irzniq"]. So we were those

22 responsible for our respective villages.

23 Q. Very well, sir. I just want to go back to an answer which you

24 just gave a little while ago in relation to your visit to Gllogjan in

25 April 1998 to visit with Mr. Haradinaj. You indicated - and this is at

Page 1088

1 page 20, lines 22 to 23 - that you wanted to feel more confident and you

2 would be in a better position to co-ordinate our activities to reach the

3 final objective. Can you be a little more specific, sir, as to what

4 activities you wanted to co-ordinate?

5 A. The defence activities for the protection of the villages. After

6 I finished my visit with Ramush, I met Rrustem Tetaj in Lluka before I

7 arrived in my village, in Isniq. So my concern was to meet those people

8 who were elected to lead the war, even though, as I said, we were at the

9 beginning of our organisation of our village self-defence. So I met also

10 Rrustem Tetaj on the same day.

11 Q. But, sir, if you could just be -- perhaps elaborate if you're in

12 a position to --

13 JUDGE MOLOTO: Yes, Mr. Emmerson.

14 MR. EMMERSON: Your Honours, page 21, line 17, the answer is

15 recorded relating to a place name "Irzniq" clearly when it must be

16 "Isniq". It's the concern that I warned Your Honours about before.

17 JUDGE MOLOTO: Do you confirm that, Mr. --

18 MR. EMMERSON: Your Honour, it in context can only be Isniq.

19 JUDGE MOLOTO: Let the witness confirm.

20 Mr. Rexhahmetaj, do you confirm that?

21 THE WITNESS: [Interpretation] I am not clear what you are asking

22 me about.

23 JUDGE MOLOTO: [Microphone not activated].

24 THE INTERPRETER: Microphone, please.

25 JUDGE MOLOTO: Can you make it clear, sir. Can you see page 21

Page 1089

1 on your screen. Can you see page 22? Yeah, but --

2 THE WITNESS: [Interpretation] Yes.

3 JUDGE MOLOTO: Can you see page 22?

4 THE WITNESS: [Interpretation] Yes.

5 JUDGE MOLOTO: Looking up page 22, can you see the number 17?

6 THE WITNESS: [Interpretation] Yes.

7 JUDGE MOLOTO: Can you see the word, the name of a village just

8 next to the number 17?

9 MR. EMMERSON: I'm sorry, the witness doesn't speak English and

10 so he can't read what the sentence means.

11 JUDGE MOLOTO: I'm asking him to read the name of the village.

12 MR. EMMERSON: Surely in his context --

13 THE INTERPRETER: Interpreter's note: That the witness mentioned

14 two villages, in addition to Isniq which is his village, he mentioned

15 also Irzniq.

16 JUDGE MOLOTO: Yeah, but we want to know what he mentioned in

17 this specific answer. "Ramush was responsible for Gllogjan, as I was

18 responsible for ..." Yeah, it can only be his home village which I think

19 is said to be Isniq. I don't know how it is pronounced, Isniq.

20 THE WITNESS: [Interpretation] No, it's a misunderstanding. I met

21 Mr. Haradinaj in Gllogjan and I said that on my way back when I was asked

22 why did -- what kind of co-ordination did you want to discuss? I said

23 that I met Ramush in his quality -- in his capacity as commander of

24 Gllogjan, like I did later, Rrustem Tetaj, Shemsedin Cekaj who was the

25 commander of Irzniq. That is all I said. Ramush I met in Gllogjan

Page 1090

1 together with ten other people, representatives, of Isniq staff.

2 JUDGE MOLOTO: I guess we'll just accept that here you're

3 referring to your own village, whatever it's called.

4 Yes, Mr. Menon.

5 MR. MENON: Thank you, Your Honour.

6 Q. Sir, yesterday you indicated to us that when the KLA headquarters

7 in Jabllanice was requesting fighters from your area to go to Jabllanice,

8 that you discussed this issue with Mr. Haradinaj. Can you tell us why

9 you discussed this issue with Mr. Haradinaj?

10 MR. EMMERSON: Could you please give us the transcript reference

11 and the exact quotation for that question. Could you read the quotation

12 to the witness.

13 MR. MENON: Sure. I can. Your Honour, if I could just have a

14 minute. I have to pull up yesterday's transcript.

15 JUDGE MOLOTO: By all means.

16 THE WITNESS: [Interpretation] Do you want me to wait or can I

17 give an answer now?

18 JUDGE MOLOTO: Please wait, sir.

19 MR. MENON: It's at page 1062, lines 10 through 15, the answer

20 and the question are fairly long so what I'm going to do is I'm going to

21 read an excerpt of that and if Mr. Emmerson has an objection then he can

22 make the objection after I've read it out.

23 "Any kind of request not only requests not only supporting with

24 firepower but any other request. This is a time when we were teaching

25 other people how to communicate within the military structures, and I

Page 1091

1 discussed this with Ramush and I insisted to have some sort of

2 communication so that requests coming from Jabllanice or any other place

3 should be co-ordinated" --

4 MR. EMMERSON: As the transcript shows, that is not the question

5 that Mr. Menon put and the assumption of Mr. Menon's question was

6 incorrect [Microphone not activated] ... perhaps to rephrase it

7 accurately.

8 JUDGE MOLOTO: Mr. Menon.

9 MR. MENON: Well, I can rephrase the question, Your Honour.

10 Q. Sir, in June of 1998, do you recall having discussed any issues

11 of -- involving Jabllanice, the KLA headquarters there, with

12 Mr. Haradinaj?

13 A. Yes, I insisted that we needed to have contact with that part

14 because it was cut off geographically and it was a remote area. And this

15 request for meeting and co-ordination was made because we had divided the

16 responsibilities for the subzones. And at that time there was a request

17 made by Jabllanice in the village of Rashiq, which is part of subzone 4,

18 to send some fighters in order to support the front line there. Later on

19 the members of the Rashiq staff came to me and told me that there was a

20 request made by Jabllanice to send fighters there. And I postponed their

21 sending -- the sending of these fighters there. I met Ramush. I

22 discussed the issue with him and I said that it is -- it makes sense

23 militarily that if there is a request by another area or a zone for

24 fighters and fire support, the commander needs to know whether they can

25 be sent, if that is possible to be done, and that was the reason why I

Page 1092

1 discussed this with him. If help is required, we need to cover the

2 various areas and the responsible people for the subzones need to know

3 what happens within their area of responsibility. This was the reason

4 why I insisted that we needed to have more contact with Jabllanice. At

5 that time those areas were also under threat and under attack. This is

6 the main reason why I did that and why I requesting that meeting with

7 him.

8 Q. And, sir, the village that you referred to as Rashiq, can you

9 just spell that for us, that village, how is that village spelled?

10 A. R-a-s-h-i-q.

11 Q. Thank you very much, sir. My question to you now, sir, is: Why

12 did you approach Mr. Haradinaj on this particular issue of Jabllanice

13 having sought reinforcements from Rashiq?

14 A. Because I didn't know anybody else there. I had never been to

15 Jabllanice. And simply, I just discussed this issue with him. What were

16 the possibilities of having such a meeting or having contacts with them,

17 because I had information that he had family ties with Jabllanice. And I

18 thought that through him -- or maybe not through him but we could sit

19 together and co-ordinate activities. Because this was to the benefit of

20 a better organisation and co-ordination.

21 Q. And when you say "he had family ties with Jabllanice," can you

22 elaborate on what family ties he had with Jabllanice?

23 A. From the information I have, I think Lahi is Ramush's maternal

24 uncle. I have said this in the statement as well and in our areas there

25 are not too many people living there, so people know each other and the

Page 1093

1 family ties.

2 JUDGE MOLOTO: Yes, Mr. --

3 MR. EMMERSON: I don't know if Mr. Menon really needs to take

4 time about this. There is no dispute about this and never has been. Of

5 course there's a family relationship.

6 JUDGE MOLOTO: In any case, the witness is also not disputing it.

7 MR. MENON: Your Honour, I was just simply developing the answer

8 that had been given on the record so that the record is clear for

9 Your Honours.

10 Q. Can you tell us, sir, how -- once you had this discussion with

11 Mr. Haradinaj, how Mr. Haradinaj communicated your concerns to those in

12 Jabllanice, if you know?

13 A. I don't know that, but when I received this request I was told by

14 him that: I will find a way to have such a meeting, but I don't know

15 anything further than that, what he did. And I insisted, I told him that

16 it would be best if we had some kind of co-ordination and to know how we

17 could support each other. This was an organisational issue and an issue

18 of reciprocal support.

19 Q. And can you confirm for us because you indicated that what

20 Mr. Haradinaj said is that he would have find a way to have such a

21 meeting. Can you just confirm to us that in fact there was such a

22 meeting?

23 A. In fact, some time passed before we had that, maybe two weeks or

24 so, and I was notified that we would go and have a meeting in Jabllanice.

25 And then there was this idea and proposal that the organisational

Page 1094

1 structures should be advanced at the zone level. So it was on the same

2 date that the skeleton of the operational staff of the Dukagjini Zone was

3 created, as I said earlier.

4 Q. Just so we're clear on the dates, when did you approach

5 Mr. Haradinaj about this particular issue involving Jabllanice?

6 A. I can't remember the exact date --

7 Q. But perhaps a month and a year, sir?

8 A. I think I approached him about two weeks earlier than the date of

9 the meeting --

10 Q. Well, then, sir, can you confirm for us what the date of that

11 meeting was then?

12 A. The date of the meeting was the 23rd of June, when we formed the

13 vertical structure for the Dukagjini Zone.

14 Q. Thank you very much, sir.

15 MR. MENON: Your Honour, I would ask that -- I've just been

16 notified, Your Honour, that it might be a good time for a break because

17 it is 3.30 and I was just about to move on to another topic.

18 JUDGE MOLOTO: Thank you so much, Mr. Menon. We'll take a break

19 and come back at 4.00. Court adjourned.

20 --- Recess taken at 3.28 p.m.

21 [The witness stands down]

22 --- On resuming at 4.01 p.m.

23 JUDGE MOLOTO: Mr. Menon.

24 MR. MENON: Your Honour, if we could have the witness enter the

25 courtroom.

Page 1095

1 JUDGE MOLOTO: I beg your pardon. May the witness please come

2 in.

3 MR. MENON: In the meantime I would ask, actually, that

4 Exhibit P297 be called up, which is the witness's statement of 24th of

5 September, 2010. If we could go to page 6 in the Albanian version and

6 page 4 in the English version and only the Albanian should be shown to

7 the witness. In addition to that, Your Honour, we have distributed hard

8 copies of the list of corrections which the witness had made to his

9 statements and which is admitted as Exhibit P299.

10 If we could scroll up in the Albanian version a little bit as

11 much as possible.

12 [The witness takes the stand]

13 MR. MENON: Excuse me, scroll down. And if the witness could be

14 handed a hard copy of the list of corrections which he made to the

15 statement.

16 Q. Sir, I want to direct your attention to paragraph 18 and I'd like

17 you to read -- it's on the screen in front of you first, sir. If you

18 could look at the document on the screen in front of you.

19 A. Yes.

20 Q. So I want to direct your attention to paragraph 18. If you could

21 just read the first four sentences of that paragraph which appear in

22 front of you.

23 MR. MENON: And Your Honours, the first four paragraphs [sic]

24 also appear on the English version page.

25 THE WITNESS: [Interpretation] Yes, I read them.

Page 1096

1 MR. MENON:

2 Q. And that's the first four sentences of paragraph 18, sir, that

3 you read? Because I misspoke. I think I referred to the word

4 "paragraph" instead of "sentence." So have you read the first four

5 sentences of paragraph 18?

6 A. Yes, I did.

7 Q. Now, sir, you have the document in front of you. Can you go to

8 the third page of that document.

9 MR. MENON: And, Your Honours, for your reference it's also the

10 third page of the English version.

11 JUDGE MOLOTO: Of which document, Mr. Menon?

12 MR. MENON: It's the hard copy document that Your Honours have in

13 front of you.

14 JUDGE MOLOTO: Thank you.

15 MR. MENON: And these are the list of corrections to the

16 statement. And I would direct Your Honours' and the witness's attention

17 to paragraph 3, letter (e) which refers to paragraph 18 of the statement

18 which is on the -- which is on e-court.

19 Q. Sir, can you read -- can you read that to yourself? It's

20 paragraph 3, letter (e), which are the corrections that you made to

21 paragraph 18 of your statement.

22 A. You want me to read the correction?

23 Q. To yourself, yes, to yourself.

24 A. Okay. I read it.

25 Q. You read it. Okay. I have a question for you, sir. It relates

Page 1097

1 to the second bullet point under paragraph 18 where you say:

2 "The fourth sentence of the Albanian version of my statement

3 should correspond to the English version, which reads, 'Prior to 23

4 June ... he already had de facto authority over the Dukagjin zone.'"

5 And I don't think there's any dispute that the "he" you're

6 referring to is Ramush Haradinaj. Can you tell me, sir, what you meant

7 by the word "authority"?

8 A. I meant that based on the resistance that he put up with his

9 family, the incident had a lot of echo in the whole country and Ramush as

10 a result of that was widely respected for this resistance that he put up

11 in protecting his family and his village. And with the passage of time,

12 in fact, he became famous. Everyone -- most of the people knew him and

13 had a lot of respect for him, because, as I said, he put up that

14 resistance and protected his family and his village. This is my way of

15 thinking when I said that.

16 Q. And, sir -- I'm sorry, sir, continue.

17 A. So on the basis of what I just said, people respected him and

18 in -- if you are respected you enjoy authority. I'm -- I don't mean here

19 legal authority, but the authority of a person who was successful in

20 protecting his family and his village and his people. This is my line of

21 thinking.

22 Q. And, sir, can you tell us whether KLA soldiers in the Dukagjin

23 Zone respected Ramush Haradinaj's authority?

24 A.

25 MR. EMMERSON: So long as it's clear that the question is being

Page 1098

1 put with the meaning of the word "authority" as the witness has just

2 defined it --

3 MR. MENON: Exactly.

4 MR. EMMERSON: -- then in other words that he's a respected

5 individual. There's a very great risk of the transcript appearing with a

6 misleading question and answer, as Mr. Menon well knows.

7 MR. MENON: Your Honour, I'm simply -- I'm simply -- the question

8 is based upon what is in the witness's statement, so he refers to the

9 fact -- he refers -- let me finish. He refers to the word "authority" in

10 his statement. He's explained what that word means in the -- in --

11 before Your Honours. And I'm simply asking him to elaborate on that by

12 asking specifically whether that would apply to the KLA soldiers in the

13 Dukagjin Zone, whether they shared that same impression of

14 Ramush Haradinaj, as the witness has indicated in his statement --

15 MR. EMMERSON: Well, I'm sorry, again, Mr. Menon skillfully but

16 misleadingly elides what is in the statement with what is the

17 explanation. The witness has explained that when he used those terms in

18 his statement what he meant was that Mr. Haradinaj was respected --

19 JUDGE MOLOTO: We have heard that, Mr. Emmerson.

20 MR. MENON: Your Honour, if we are going to have a prolonged

21 argument about this, I think it would be better for the witness to be

22 excused --

23 JUDGE MOLOTO: No, just carry on.

24 MR. MENON:

25 Q. Sir, I'll repeat the question for you. Can you tell us whether

Page 1099

1 KLA soldiers in the Dukagjin Zone respected Ramush Haradinaj's authority,

2 and I'm referring to the time period from prior to the 23rd of May, 1998,

3 and after the 23rd of May, 1998 -- or, excuse me, after the 23rd of June,

4 1998, it should read.

5 A. The population always respected him. The population was

6 suffering, ordinary people were suffering, and he defended them. So

7 that's why they respected him.

8 Q. And my question actually was specific to KLA soldiers, sir.

9 A. The whole population --

10 Q. Okay. Thank you, sir.

11 A. -- wanted defence and they got it.

12 Q. Thank you very much, sir. And can you elaborate for us, sir, on

13 why Mr. Haradinaj was appointed as the commander of the Dukagjin Zone

14 officially on the 23rd of June, 1998? Why was he selected?

15 A. Because we proposed him.

16 Q. But why did you propose him?

17 A. Perhaps we were not sure that we, the others, could carry that

18 duty upon our shoulders. That's why we proposed him. He had shown what

19 he could do and we proposed him. Ramush could have refused, but he took

20 on the responsibility by respecting us and our proposal. He, out of his

21 goodwill, he accepted the task, but he could have refused.

22 [Prosecution counsel confer]

23 MR. MENON:

24 Q. And, sir, when you say "he had shown what he could do," can you

25 clarify what you mean by that, sir.

Page 1100

1 A. I mentioned it earlier. He had shown that he was a good soldier,

2 a good leader, and a person who could gather people around him; and

3 that's why we decided that Ramush be a co-ordinator for the subzones

4 earlier. The same logic worked later. There were five professional

5 officers there and each of us could have taken that burden upon their

6 shoulders, but we proposed him and he did not hesitate. He respected our

7 will and our proposal for him to be the leader.

8 Q. And, sir, when you say that Ramush Haradinaj was a person who

9 could gather people around him, what do you mean by that, sir?

10 A. I mean that he knew how to respect other people, he was a good

11 communicator, he was reasonable. So this was a person who could gather

12 people around himself. It was this that I meant. He was able to discuss

13 the problems that people had with them. He listened to their concerns,

14 and that's why he had that reputation.

15 Q. And earlier on, sir, you indicated - and this is at transcript

16 page 33, line 7 - you had indicated that -- and this is in -- this is in

17 reference to yourself and the other commanders that:

18 "Perhaps we were not sure that we, the others, could carry that

19 duty upon our shoulders."

20 Can you elaborate on why you and the other commanders felt you

21 couldn't carry the responsibility on your shoulders?

22 A. I -- it was only a supposition because we -- because we had

23 already scored some results, but I know very well from my own experience

24 that it was not an easy task. I said even earlier that we based our

25 proposal on his abilities, his qualities, which he had displayed earlier.

Page 1108

1 There's still an issue to be decided, but a momentary witness.

2 MR. GUY-SMITH: That's my issue and he will be a momentary

3 witness, but it will be momentary.

4 MR. EMMERSON: So, I mean, we're talking ten minutes. Witness 77

5 is a significant witness, it may take us a day, it's possible. And that

6 leaves Witness 3. Even if Witness 3's testimony is given in full afresh,

7 it took I think a day -- a little over a day on the last occasion, so

8 you've in total got about three days there. Now, the reality of

9 Witness 3 is this, we have consented to the Prosecution's application

10 under 92 ter that his testimony and transcripts from the previous

11 trial - and this is a consent that has come from all accused - be

12 admitted. The Prosecution's position, stated position, in their opening

13 brief at paragraph 14 -- I'm sorry, it's their 92 ter motion that I'm

14 looking at paragraph 14, they're stated position is that the only

15 additional evidence that they wish to elicit orally is as follows:

16 [As read] "Witness 3 will be examined," and that is examined

17 orally, "about accusations he heard being levelled against a Catholic man

18 whom the Prosecution will argue is Pal Krasniqi with whom Witness 3 was

19 detained."

20 In other words, the only oral testimony that the Prosecution

21 sought to elicit live from that witness is the fact that he heard

22 accusations being levelled against a co -- an alleged co-detainee. Well,

23 one can imagine how long that will be likely to elicit, minutes one would

24 think.

25 Now, the position is contrary to the Prosecution's 92 ter

Page 1109

1 application and contrary to the position that has been taken by the

2 Defence, the Trial Chamber issued a ruling that because the witness's

3 testimony concerns the act and conduct of the accused, he needs to give

4 his testimony orally. But that is not the position that either party is

5 seeking. The position of the Prosecution is they wish to ask him one or

6 two additional questions. The position of the Defence is that that is

7 perfectly acceptable, providing his full testimony, 92 ter, and

8 transcript from the previous trial is admitted. The Prosecution would,

9 no doubt, wish to have that happen as well because, clearly, we don't

10 want to hear all over again evidence that's been fully cross-examined.

11 So the reality with witness --

12 JUDGE MOLOTO: Let me stop you there. Is it the position of all

13 three Defence teams that -- just sit down, please --

14 MR. GUY-SMITH: Oh, I'm sorry, I thought you were asking for a

15 response.

16 JUDGE MOLOTO: No. Is the position of all three Defence teams

17 that they don't even intend to cross-examine him on the oral part that

18 the Prosecution wants to lead him?

19 MR. EMMERSON: No, absolutely not, no. Insofar as the

20 Prosecution has indicated in its 92 ter mediation that it has certain

21 additional questions to ask him, it may well be that -- I won't be asking

22 many questions about it because it's nothing to do with my client but it

23 may well be that there be questions asked by other counsel in relation to

24 that minute's worth or five-minutes' worth of additional evidence. But

25 the critical point is it's a monumental waste of this Tribunal's time and

Page 1110

1 resources to hear afresh the whole story --

2 JUDGE MOLOTO: I hear you and I'm trying to make sure that we

3 don't waste that time. That's why I want to find out.

4 MR. EMMERSON: Yes.

5 JUDGE MOLOTO: Can I just confirm --

6 MR. EMMERSON: Yes.

7 JUDGE MOLOTO: -- with other counsel.

8 Mr. Guy-Smith, is it Mr. Balaj's Defence's position that they do

9 not intend to cross-examine this witness on the oral testimony that this

10 witness is going to give.

11 MR. GUY-SMITH: The oral testimony that was just discussed with

12 you and Mr. Emmerson?

13 JUDGE MOLOTO: That's right.

14 MR. GUY-SMITH: That is a correct statement. I do not intend to

15 cross-examine him on that matter.

16 JUDGE MOLOTO: Thank you very much.

17 Mr. Harvey.

18 MR. HARVEY: Your Honours, the evidence that has been given so

19 far, absolutely no intention.

20 JUDGE MOLOTO: No, that's not the question --

21 MR. HARVEY: No, let me come to it. We don't know what

22 additional questions are going to be asked of this witness. It seems to

23 me that the most sensible course for the Prosecution to take is to go,

24 take a statement from the witness on the further matters, whatever they

25 may be, that the Prosecution wishes to adduce, provide a copy of that

Page 1111

1 statement to the Defence, and then we can tell you yes or no whether we

2 wish that witness to be called to be questioned about those additional

3 matters. We don't know what they want to ask. I can tell you as I stand

4 here that I may have a very few questions because this will apparently

5 relate to matters that occurred in Jabllanice, which are laid at the door

6 of my client by the Prosecution in this case. To that extent, I may have

7 a few questions. I will not be detaining the Court long, and that's why

8 I propose that the solution that I do that the Prosecution proceed in the

9 normal way, go take an extra statement, give us a copy of it and we will

10 tell you whether we need them at all.

11 JUDGE MOLOTO: Thank you.

12 I know you are on your feet, Mr. --

13 MR. EMMERSON: I just wanted to say obviously the critical point

14 is that at the moment, on Your Honours' ruling, the Prosecution are

15 required to elicit testimony live all over again and no one's asking for

16 that. The Prosecution have asked -- no, I'm sorry, none of the parties

17 are asking you to order that.

18 JUDGE MOLOTO: Sure.

19 MR. EMMERSON: But that being the position, it is agreed by

20 consent that, whatever happens, his 92 ter statement which was admitted

21 on the last occasion and his testimony which was admitted on the last

22 occasion will be sought to be introduced before the Trial Chamber. Now,

23 if the Trial Chamber thinks it a profitable use of time to have him tell

24 the story all over again, then obviously that's a matter for the

25 Trial Chamber.

Page 1112

1 JUDGE MOLOTO: That's not what happens when a 92 ter witness

2 comes. Can I just confirm something with the Prosecution because I hear

3 what you are -- what you want and I would like to make sure that --

4 MR. GUY-SMITH: Excuse me, Your Honour, if I might and it may be

5 of some insistence with regard to your inquiry. We have a supplemental

6 information sheet dated the 24th of January, 2011, which deals with the

7 specific issues that we're talking about right now. And that seems to be

8 pretty clear about what the level of inquiry is. So I think the matter

9 can be addressed if everybody, meaning the Defence or Mr. Harvey and the

10 Prosecution, agree that that's what we're talking about. We're talking

11 about literally moments of time here.

12 JUDGE MOLOTO: Mr. Rogers, Mr. Harvey is suggesting that you

13 could take a statement from the witness on the further oral testimony you

14 intend leading, and Mr. Guy-Smith is referring to some document of the

15 24th of January, 2011. First of all, is it possible, within the

16 capacities of your office, to get the statement before the witness is due

17 to come and give it to the parties on that little part that you want to

18 lead him about?

19 MR. ROGERS: Your Honours, I think it would be difficult to

20 obtain it. We can endeavour to obtain a further statement relating to

21 issues that we would wish to cover, but I think it will be difficult.

22 Normally we wish to have the witness and see the witness in person, but

23 given his present location which is known -- obviously I'm not going to

24 explain where it is, but I know that will be very difficult if not

25 impossible to do between now and the next sitting period. I can't

Page 1113

1 explain why, but it will be.

2 The other thing is of course -- and I can't refer to it in open

3 session, but I'm reminded of Your Honours' decision and it was

4 Your Honours that wished to hear the witness and refused the application

5 of the Prosecution. And we're very willing and able and entirely content

6 to place before you a witness that was present, that can explain in

7 detail about exactly what happened to him and the other --

8 JUDGE MOLOTO: Don't go there. I understand that the Chamber

9 might have called him, but I also do understand that a 92 ter witness

10 does not have to spend ten minutes in court. So we are -- even if he

11 comes here, strictly speaking, the 92 ter part of it shouldn't take more

12 than is necessary. You're going to ask him: Is this what you would say

13 if you were asked to answer questions? Yes. Then you tender the

14 statement. That's it.

15 MR. ROGERS: If he was a 92 ter witness, yes, but he isn't

16 because Your Honours have refused the application.

17 JUDGE MOLOTO: Sure. Okay.

18 [Trial Chamber confers]

19 JUDGE DELVOIE: Mr. Emmerson, is this on your part an application

20 for reconsideration of the ruling on this?

21 MR. EMMERSON: Well, I suppose in effect it comes to that.

22 JUDGE DELVOIE: Okay.

23 MR. EMMERSON: There being no objection in relation to it.

24 Obviously he can be here and if the Chamber has specific questions to put

25 to him or Mr. Rogers wants to put supplementary questions to him then

Page 1114

1 that can be done. But given that the overarching duty on the Tribunal is

2 to ensure efficient management of time, given that neither of the parties

3 are requiring this witness to tell his story all over again because he's

4 been fully cross-examined on it once before and given that the

5 Prosecution has only a very limited amount of additional examination on

6 which the parties can then ask questions, if necessary, it's simply a

7 scheduling issue. It's a massive waste of your time and of money for the

8 witness to give his evidence all over again when he can be here and not

9 be asked any specific questions, but from a point of view of timing on

10 that basis he would be in and out in a session. He's certainly not going

11 to take a day and a half.

12 JUDGE DELVOIE: If he would be 92 ter'd, would there be a

13 cross-examination?

14 MR. EMMERSON: Not on what's gone before, only on --

15 JUDGE DELVOIE: No, that's what I mean. On the fresh evidence --

16 MR. EMMERSON: None of us wish to cross-examine him on what went

17 before. It's all on the record. He's been fully cross-examined already.

18 MR. GUY-SMITH: I shook my head in response to your question and

19 I shook my head side to side which would be affirmative. No, there's not

20 any intention on the part of us to re-cross-examine on what's gone

21 before, none whatsoever, as a 92 ter witness.

22 JUDGE DELVOIE: And is this general strategy? I mean, not --

23 92 ter witnesses --

24 MR. GUY-SMITH: No, it's as regards --

25 JUDGE DELVOIE: This particular one.

Page 1115

1 MR. GUY-SMITH: -- this particular witness. And the Chamber has

2 already admitted a fair number of witnesses in this fashion already where

3 there is essentially the record that you have from the previous trial

4 with full cross-examination.

5 JUDGE MOLOTO: Sorry, gentlemen, you can't all speak at the same

6 time.

7 MR. EMMERSON: [Overlapping speakers] -- Can I just indicate, in

8 case Your Honours should be under any misapprehension and unless I'm

9 mistaken, this is the only witness in the category of somebody who gave

10 evidence at the last trial, was cross-examined in full, and is coming

11 before this Tribunal, again, in person. There are a large number of

12 witnesses who gave evidence at the first trial and were cross-examined in

13 full where the whole of their evidence is going into the record, but the

14 only reason why this witness falls into a different category from the

15 others, in other words, the only reason it wasn't just admitted by

16 consent, is because the Prosecution wishes to ask a few additional

17 questions. So the logic of the situation dictates that the witness

18 arrive here with or without a statement but certainly with the proofing

19 notes which indicate what it is that the Prosecution wishes to elicit

20 from him but that is easily achievable by the time he comes into the

21 witness box. He attests in the normal way to his testimony and his

22 transcript. No party on this side of the court wishes to cross-examine

23 him on that material. The only questions that will be put to him are by

24 the Prosecution on the very limited basis they have given notice of and

25 by the Defence in relation to any of those issues. Now, on the issues

Page 1116

1 that the Prosecution has so far given notice of, I have no questions,

2 Mr. Guy-Smith has no questions, Mr. Harvey may. But on any view, this

3 man will be in and out, if it's done properly and efficiently, in an hour

4 at most. So just looking back at our schedule, if Witness 80 isn't going

5 to be here we've effectively got one witness who is substantial and may

6 last a day --

7 JUDGE MOLOTO: Mr. Emmerson, before you go to the next witness,

8 the questions I was asking earlier I was anticipating what you just said

9 to Mr. -- to Judge Delvoie --

10 MR. EMMERSON: Yes.

11 JUDGE MOLOTO: That you are effectively asking for a

12 reconsideration.

13 MR. EMMERSON: I suppose that's what it comes to.

14 JUDGE MOLOTO: And I'm trying to find out whether in fact we can

15 resolve that if you can just put it formally, but it does seem as,

16 because of Mr. Harvey's position, it becomes difficult to reconsider.

17 MR. EMMERSON: Because of Mr. Harvey's position ... ?

18 JUDGE MOLOTO: Where he says he may very well have questions.

19 MR. EMMERSON: No, no, I think you may have misunderstood him.

20 He said he may very well have questions about the new material.

21 JUDGE MOLOTO: That's what I mean. You don't have --

22 MR. EMMERSON: May I give way to him to clarify.

23 MR. HARVEY: Let me make matters clearer. There is nothing even

24 in the new material of which we have been given notice back in January

25 that involves me needing to ask a single question. I apologise I had not

Page 1117

1 refreshed my memory about that new material before the subject came up, I

2 looked at it again. I cannot see the basis on which I would be asking a

3 further question.

4 JUDGE MOLOTO: Thank you very much.

5 MR. HARVEY: In that case, I join in the application I think

6 Mr. Emmerson is just about to make.

7 JUDGE MOLOTO: Thank you very much, Mr. Harvey. That makes it

8 much easier.

9 Mr. Emmerson, are you making the application, by reference?

10 MR. EMMERSON: Yes, Your Honour.

11 [Trial Chamber confers]

12 JUDGE MOLOTO: The Chamber doesn't have a very sharp recollection

13 of this motion --

14 MR. EMMERSON: Yes.

15 JUDGE MOLOTO: -- where the Prosecution, probably jointly with

16 you, agreed that this evidence goes in. We'd just like to look at our

17 decision.

18 MR. EMMERSON: Yes.

19 JUDGE MOLOTO: Can we take a break and come back.

20 MR. EMMERSON: I mean, if I could just indicate, Your Honours

21 will recall, for example, Zoran Stijovic. Your Honours will recall we've

22 heard the testimony, briefly, of Zoran Stijovic. We've heard the

23 testimony, briefly, of Bislim Zyrapi. Both of those witnesses gave

24 evidence in the previous trial and in both cases they were called in this

25 trial in order to adopt their testimony and give a little bit more, and

Page 1118

1 answer some questions about the little bit more. Witness 6 and Witness 3

2 were both witnesses on the Prosecution's 92 ter application, both of whom

3 concerned detailed events alleged to have occurred at Jabllanice, and

4 both of them in effect cross-relating, it is said, to the same sequence

5 of events. Your Honours have admitted, by agreement, Witness 6 under

6 Rule 92 ter -- I'm sorry ...

7 [Defence counsel confer]

8 MR. EMMERSON: Oh, I'm sorry, I had misunderstood that.

9 Apparently there's an -- it's outstanding. The point remains the same,

10 though, that it's only if the Prosecution want to elicit additional

11 testimony that it is necessary for the witness to attend to give it and

12 they really should only give the additional testimony or any

13 clarification that's absolutely required. And that is certainly a -- the

14 workable position as regards -- as regards Witness 3 because we remain of

15 the position that none of us wishes to re-open what took place before,

16 but obviously if the Prosecution want additional material then they must

17 be entitled to have it and if questions arise they must be asked. But it

18 would be -- it is inevitable that Your Honours are going to be faced with

19 the admission of the transcript and the 92 ter statement one way or the

20 other of that witness, and it would, as I say, just be a monumental waste

21 of the Tribunal's time and money to have a day of taking the evidence all

22 over again.

23 JUDGE MOLOTO: Can we then take a short break and we'll call you.

24 MR. EMMERSON: Yes.

25 JUDGE MOLOTO: Thank you so much.

Page 1119

1 Court adjourned.

2 --- Break taken at 4.50 p.m.

3 --- On resuming at 5.06 p.m.

4 JUDGE MOLOTO: Thank you very much for the indulgence.

5 The Chamber has considered this matter and it does want to hear

6 the witness, so your application for reconsideration will be denied.

7 MR. EMMERSON: Can I nonetheless indicate to Your Honours just

8 take stock of where that leaves us. Going on the length of time that

9 Witness 3 was giving his testimony in full on the last occasion, that

10 would occupy just a little over one day of the Tribunal's time. A

11 similar period of time can be expected in relation to Witness 77. So

12 that would take us maximum two and a half or if one stretches it for

13 procedural difficulties to three days. We then have cross-examination

14 outstanding for Witness 75, let us say the maximum would be a day, and

15 momentary evidence from Witness 76 and Witness Togal under 92 ter.

16 There is -- it is inconceivable that we will occupy more than one

17 week of the Tribunal's time --

18 JUDGE HALL: May I have a moment?

19 MR. EMMERSON: Yes.

20 [Trial Chamber confers]

21 MR. EMMERSON: Could I just -- unless Your Honours want to say

22 something, could I finish the sentence that I was going to complete.

23 I simply wanted to say to Your Honours and for the purposes of

24 the Tribunal's time since we are alternating with Judge Hall and

25 Judge Delvoie in the Stanisic case, it strikes me that the best and, as a

Page 1120

1 matter for trial management, of course, and I don't know how the Stanisic

2 case would be affected but if we are not going to be using the second

3 week because there's not enough evidence to use that second week, then

4 that obviously is a week that is available in one way or another for the

5 Stanisic case.

6 JUDGE MOLOTO: Thank you so much. But maybe on Monday when you

7 see the decision on 89(F) you may very well consider that there may be

8 work for us to do.

9 Are there any other issues that the parties would like to raise?

10 Mr. Rogers.

11 MR. ROGERS: No. Just to thank Your Honours for the decisions in

12 the two matters relating to the orders that have just been released. I

13 will do the best I can to advance that.

14 JUDGE MOLOTO: Thank you, Mr. Rogers.

15 MR. ROGERS: So I can deal with that.

16 Your Honours, I don't know how a -- how we -- sorry, let me start

17 again.

18 I don't know how quickly we may be able to bring other

19 individuals in respect of the 89(F) witnesses. I am anticipating from

20 Your Honour's indication we might need to be looking for some time to

21 fill with them. And I suspect that by speaking to my learned friends we

22 may be able to resolve some of those issues as well because I know what

23 their discrete concerns were about them and it may be that they're

24 resolved, but we'll see. I don't share my learned friends' confidence

25 that on the current running schedule and the way things have been

Page 1121

1 progressing so far that the witnesses that we've already have identified

2 will take as little time as suggested, but I'm not hearing Your Honours

3 vacating any of the sitting time, so there's little more I think I need

4 to say at this time.

5 JUDGE MOLOTO: Sure, we don't intend to vacate any of the time

6 until we see actual need on the ground that there is a need for that.

7 Okay. Anything from the Defence side?

8 MR. EMMERSON: Simply this, Mr. Rogers will have to file the

9 actual list of witnesses he proposes to call in the next session by the

10 12th. Would Your Honours therefore immediately upon the filing of that

11 invite the Registry to seek submissions of the parties as to what the

12 position is time-wise because obviously we could -- Your Honours will

13 want to reconsider the situation in relation to sitting times once we

14 know who is actually going to be called. I mean, Your Honour has just

15 indicated that there may be additional witnesses arising out of the 89(F)

16 ruling. Well, if Mr. Rogers is not a position to call them in the next

17 session -- I'm standing here trying to assist the Tribunal efficiently to

18 manage its time. I could see we could very well end up in a situation

19 where what is time that could be being used for sitting either on this or

20 the other case is not going to be used.

21 JUDGE MOLOTO: Thank you very much. And you can rest assured,

22 Mr. Emmerson, that the Chamber shares that concern. But at the same time

23 the Chamber does want to make sure that all the evidence and every

24 important evidence is placed before it for its own consideration. So

25 yes, we still have to have a fair trial and the fair trial considerations

Page 1122

1 weigh a little more than expeditiousness, I think, if not much more.

2 MR. EMMERSON: I would never question that.

3 JUDGE MOLOTO: Thank you so much for not questioning that.

4 From the way I see Mr. Guy-Smith sitting, it doesn't look like he

5 has got anything to raise this afternoon?

6 MR. GUY-SMITH: I do not. I trust you will have a good

7 weekend -- I'm sorry, I trust you will have a good period of time until

8 we see each other next. One of you I know I'll be seeing sooner than

9 later.

10 JUDGE MOLOTO: Same to you, Mr. Guy-Smith.

11 And Mr. Harvey?

12 MR. HARVEY: I join in wishing you all a pleasant respite.

13 JUDGE MOLOTO: And to you too, Mr. Harvey.

14 We take an adjournment and come back on the 26th of September

15 at --

16 MR. ROGERS: I think it's 9.00, Your Honour.

17 JUDGE MOLOTO: Is it 9.00? Courtroom 1. Court adjourned.

18 --- Whereupon the hearing adjourned at 5.13 p.m.,

19 to be reconvened on Monday, the 26th day of

20 September, 2011, at 9.00 a.m.