1 Monday, 26 September 2011
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.01 a.m.
5 JUDGE MOLOTO: Good morning to everybody in and around the
7 Mr. Registrar, will you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. This is case
9 IT-04-84bis-T, the Prosecutor versus Ramush Haradinaj, Idriz Balaj, and
10 Lahi Brahimaj.
11 JUDGE MOLOTO: Thank you so much.
12 Could we have the appearances for the day, starting with the
13 Prosecution, please.
14 MS. KRAVETZ: Good morning, Your Honours. Daniela Kravetz for
15 the Prosecution, with my colleague Aditya Menon; our Case Manager,
16 Line Pedersen; and our legal intern Thomas Dutton. Thank you.
17 JUDGE MOLOTO: Thank you very much.
18 And for the Defence of Mr. Haradinaj.
19 MR. EMMERSON: Your Honour, Ben Emmerson for Ramush Haradinaj,
20 together with Rodney Dixon, Annie O'Reilly, Andrew Strong, and
21 Kushtrim Zymberi.
22 JUDGE MOLOTO: Thank you very much, Mr. Emmerson.
23 And for Mr. Balaj.
24 MR. GUY-SMITH: Good morning, Your Honours. Gregor Guy-Smith,
25 with Colleen Rohan, Chad Mair, and Mr. Gentian Zyberi is appearing
1 pro bono today.
2 JUDGE MOLOTO: Thank you so much.
3 And for Mr. Brahimaj.
4 MR. HARVEY: Good morning, Your Honours. Richard Harvey,
5 assisted by Mr. Luke Boenisch and Rudina Jasini.
6 JUDGE MOLOTO: Thank you so much, Mr. Harvey.
7 Just before we begin, can I just ask a few questions, ma'am.
8 We've got on the notification list from the Prosecution for this week
9 both Witnesses 80 and -- or shall we go into private session? What I
10 just want to find out is whether -- are these people coming, 80 and 75?
11 MS. KRAVETZ: In relation to Witness 80, Your Honours, we have a
12 motion pending before the Chamber --
13 JUDGE MOLOTO: That's right.
14 MS. KRAVETZ: -- to either proceed via videolink for the
15 testimony of this witness or do a Rule 4 sitting. So we have listed him
16 on the basis of that application that has been made to Your Honours.
17 That's why he's listed as the last witness for the sitting period.
18 JUDGE MOLOTO: Okay. Can I suggest we move into private session.
19 [Private session]
11 Pages 1125-1151 redacted. Private session.
6 [Open session]
7 THE REGISTRAR: Your Honours, we're in open session. Thank you.
8 JUDGE MOLOTO: Thank you so much.
9 Madam Kravetz.
10 MS. KRAVETZ: Your Honour, the Prosecution calls Witness 77. We
11 need to go into closed session to allow the witness to enter the
13 JUDGE MOLOTO: May the Chamber please move into closed session.
14 [Closed session]
5 [Open session]
6 THE REGISTRAR: Your Honours, we're back in open session. Thank
8 JUDGE MOLOTO: Thank you very much, Mr. Registrar.
9 Yes, Madam Kravetz.
10 MS. KRAVETZ: Thank you, Your Honour.
11 Examination by Ms. Kravetz:
12 Q. Good morning, sir.
13 A. Good morning.
14 THE INTERPRETER: Could the witness please be asked to sit closer
15 to the microphone for the interpreters.
16 MS. KRAVETZ:
17 Q. Could you please approach the microphone, sir. Just move --
18 MS. KRAVETZ: Maybe the usher could assist the witness.
19 Q. Sir, can you hear me in a language you understand?
20 A. Yes.
21 MS. KRAVETZ: With the assistance of the usher, can I ask that
22 the witness be given a pseudonym sheet.
23 Q. Sir, I would like you to look at the document that's being handed
24 to you or will be handed to you in a minute, and without reading it out
25 loud I'm going to ask you to confirm whether the details on this document
1 are correct.
2 Could you please just read that to yourself and let me know if
3 the details -- if your personal details indicated in that document are
5 A. Yes.
6 Q. Thank you, sir.
7 MS. KRAVETZ: Your Honours, I seek to tender the pseudonym sheet,
8 that's Exhibit 03100, and I seek to tender that under seal.
9 JUDGE MOLOTO: 03100 is admitted into evidence. May it please be
10 given an exhibit number.
11 THE REGISTRAR: Your Honours, it shall be assigned Exhibit P301.
12 JUDGE MOLOTO: Thank you.
13 MS. KRAVETZ: Your Honours, could we please go briefly into
14 private session.
15 JUDGE MOLOTO: May the Chamber please move into private session.
16 [Private session]
9 [Open session]
10 THE REGISTRAR: Your Honours, we are in open session. Thank you.
11 JUDGE MOLOTO: Thank you so much.
12 Yes, Madam Kravetz.
13 MS. KRAVETZ: Thank you.
14 Q. Sir, when did the FARK forces enter Kosovo?
15 A. Sometime in 1998. It was the beginning of June, as far as I
17 Q. And could you tell us, if you know, the size of the FARK forces
18 that entered Kosovo in -- on the date that you have indicated? By that I
19 mean how many men approximately.
20 A. The 134 Brigade had about 200, 250 men.
21 Q. Do you know what type of weaponry these forces brought into
22 Kosovo, if any, when they entered in the date that you have indicated?
23 A. Light armament.
24 Q. Can you explain what you mean by that?
25 A. Automatic rifles, rifles, grenades, hand-grenades.
1 Q. And did these FARK forces have any type of uniform?
2 A. They did have camouflage uniforms.
3 Q. Do you know what was the purpose of these forces, the FARK
4 forces, entering Kosovo in 1998?
5 A. The aim of the FARK forces was to fight Serb paramilitaries.
6 Q. And who decided that these forces would enter Kosovo in the
7 period you have indicated, do you know?
8 A. The decision was taken by Ahmet Krasniqi, because the
9 General Staff was in Tirana, and Colonel Tahir Zemaj was tasked with this
10 entry and Ahmet Krasniqi was the one who gave the order for the forces to
11 enter Kosovo as soon as possible.
12 Q. You have mentioned a couple of names. I just want to clarify who
13 these persons are for the Court. Could you tell us first who is -- who
14 was Ahmet Krasniqi?
15 A. Ahmet Krasniqi was the commander of the armed forces of the
16 Republic of Kosovo.
17 Q. And where was he based at the time?
18 A. He was in Tirana.
19 Q. You also referred to a person by the name of Colonel Tahir Zemaj.
20 Who was he?
21 A. He was the commander of the 134 Brigade. He was appointed by
22 Ahmet Krasniqi.
23 Q. And did Tahir Zemaj enter Kosovo along with the 134th Brigade
24 that you've referred to in June of 1998?
25 A. Yes. He was the leader of the brigade.
1 Q. Do you know whether these FARK forces, once they entered Kosovo,
2 do you know if they went to any particular village within Kosovo?
3 A. Initially they stopped at Jasiq village.
4 Q. And for how long did they, these forces, remain at Jasiq village?
5 A. Several days. I can't remember how many exactly.
6 Q. Do you know whether, after the arrival of the FARK forces in
7 Kosovo, did Tahir Zemaj have any meetings with Ramush Haradinaj?
8 A. Yes, they met. There was a meeting in Junik.
9 Q. Do you remember approximately when that meeting in Junik took
11 A. It was about two or three days after the 134th Brigade got to
12 Jasiq. This meeting was scheduled then.
13 Q. Who organised the meeting?
14 A. As far as I know, Naim Maloku and another person, I can't
15 remember this person's name, and the commander in Junik. I can't
16 remember his name either.
17 Q. That's okay. You've referred to a person by the name of
18 Naim Maloku. Who was he?
19 A. He was an officer. It was said at the time that he had been an
20 officer in the Army of Yugoslavia.
21 Q. And what was the purpose of this meeting?
22 A. The purpose was that the forces wanted to continue on their way
23 to go to an interior part of Kosovo in the Decani area. And they met the
24 resistance of some people and they couldn't go on from Jasiq to the
25 vicinity of Decan, in one of the villages near Decan.
1 Q. I just want to clarify that answer, sir. You say "the purpose
2 was that the forces wanted to continue on their way ..."
3 Which forces are you referring to?
4 A. The 134th Brigade.
5 Q. And when you say "they met the resistance of some people and they
6 couldn't go on from Jasiq," which people are you referring to?
7 A. Ramush Haradinaj had sent word that they shouldn't dare to enter
8 further in Kosovo.
9 Q. Just to clarify, sir. When you say he "had sent word that they
10 shouldn't dare to enter further," who are you referring to by "they"?
11 A. The same brigade, the 134th Brigade that I mentioned earlier.
12 Q. And --
13 JUDGE MOLOTO: Madam Kravetz.
14 MS. KRAVETZ: Oh, I see it's time for the break.
15 JUDGE MOLOTO: Would that be a convenient time?
16 MS. KRAVETZ: Yes, Your Honour, it's fine to interrupt at this
18 JUDGE MOLOTO: Thank you so much. We'll take a break and come
19 back at quarter to 11.00. Court adjourned.
20 May the Chamber please move into closed session.
21 [Closed session]
3 [Open session]
4 THE REGISTRAR: Your Honours, we're back in open session. Thank
6 JUDGE MOLOTO: Thank you very much.
7 We'll take a break and come back at quarter to.
8 --- Recess taken at 10.17 a.m.
9 --- On resuming at 10.46 a.m.
10 JUDGE MOLOTO: May the Chamber please move into closed session.
11 [Closed session]
18 [Open session]
19 THE REGISTRAR: Your Honours, we're back in open session. Thank
21 JUDGE MOLOTO: Thank you so much, Mr. Registrar.
22 Madam Kravetz.
23 MS. KRAVETZ: Thank you, Your Honour.
24 Q. Sir, before the break you had told us that while this
25 134th Brigade was in Jasiq, Ramush Haradinaj had sent word that they
1 should not dare to enter further into Kosovo. How do you know this, sir?
2 A. Tahir Zemaj, the commander, told us.
3 Q. And do you know who came on behalf of Ramush Haradinaj to convey
4 that message to the FARK forces in Jasiq?
5 A. As far as I remember, it was Naim Maloku and it was for that
6 reason that the meeting was scheduled to be held.
7 Q. Did Ramush Haradinaj attend this meeting that was organised in
9 A. Yes.
10 Q. Do you know if he came alone or did he come with others?
11 A. He was accompanied by the military police. This is how they were
12 called at the time. But I don't know who exactly was together with him.
13 However, I know that Naim Maloku was there and a couple of other
14 officers, but I don't remember their names.
15 Q. And these persons that you describe as military police, did they
16 wear any type of uniform?
17 A. Black uniforms.
18 Q. Did this uniform have any sort of insignia or badge?
19 A. The KLA one. But I can't remember whether it was PU-KLA or not.
20 But the black uniforms were of the military police.
21 Q. I think you said you can't remember if it was PU-KLA or not.
22 What does PU stand for?
23 A. Military police.
24 Q. Do you know what was discussed during this meeting which
25 Ramush Haradinaj attended in Junik?
1 MR. EMMERSON: I'm sorry, before the witness answers, could
2 Ms. Kravetz please lay the foundation for knowledge before the witness
3 testifies. In other words, was he present at the meeting, what is the
4 source of his information. That's going to become a theme of objections
5 if questions are asked in that way.
6 JUDGE MOLOTO: Madam Kravetz.
7 MS. KRAVETZ: Sure, no problem, I can back up.
8 Q. First of all, can you tell us with whom Mr. Haradinaj met when he
9 went to Junik on the --
10 MR. EMMERSON: Same objection, same reasons, please, basis of
12 MS. KRAVETZ: I believe the witness will tell us whether he knows
13 that or not and I can take it from there.
14 JUDGE MOLOTO: Proceed.
15 MS. KRAVETZ:
16 Q. So, sir, do you know with whom Mr. Haradinaj met when he went to
17 Junik on this occasion that you've been describing?
18 A. He met Tahir Zemaj, Nazif Ramabaja, and another officer whose
19 name I can't remember; however, I was not in the room where the meeting
20 was held. I was in the ante-room with some other soldiers.
21 Q. Did you see Ramush Haradinaj on that occasion in Junik?
22 A. Yes.
23 Q. And had you met him or encountered him before that occasion?
24 A. No, that was the first time that I saw him.
25 Q. And how did you know that the person you saw was
1 Ramush Haradinaj?
2 A. The people who knew him said that this was Ramush Haradinaj, this
3 person was Naim Maloku, and I don't remember the name of the third
4 person. I think he was commander in Junik, but I can't remember his
6 Q. That's fine. You've told us that you did not attend the meeting;
7 you were in the ante-room with other soldiers. Did any of the persons
8 who attended the meeting tell you what was discussed during this meeting?
9 A. Yes, of course. After people came out of the meeting,
10 Tahir Zemaj told us all that there were some problems, that orders had
11 been given for us to go back to Albania and not enter further into
13 Q. Just to clarify that answer, sir. When you say that he told you
14 all that there were some problems, what exactly did he say? What sort of
15 problems are you referring to?
16 A. The problem was that these officers could not get further into
17 mainland Kosovo because they were not welcome.
18 Q. When you say "these officers could not get further into ...
19 Kosovo," whom are you referring to?
20 A. Tahir Zemaj was commander of 134th Brigade, but there were other
21 officers, 25 of them, who had served in the Yugoslav Army.
22 Q. You told us earlier that orders had been given for you to go back
23 to Albania and not to enter further into Kosovo. Who gave those orders?
24 A. I believe that Tahir said that Ramush, Naim Maloku, and the other
25 person said that.
1 Q. And when you say that these officers, that is, Tahir Zemaj and
2 the other officers, were not welcome, whom are you referring to when you
3 say they were not welcome? By whom were they not welcome?
4 A. As I said, in the meeting there were three people, Ramush,
5 Naim Maloku, and the third person.
6 Q. Have you completed your answer, sir? I was asking: Who did not
7 welcome Tahir Zemaj and the other officers?
8 A. Ramush, Naim Maloku, and the third person.
9 Q. Thank you. I think now it's clear.
10 As a result of this meeting between Ramush Haradinaj,
11 Tahir Zemaj, and the other officers you've referred to, did the FARK
12 forces leave the village of Jasiq?
13 A. No.
14 Q. For how long did they remain in that village?
15 A. For about ten days, I would say.
16 Q. And after those ten days, where did these forces go?
17 A. They remained there until Sali Ceku, Ismet Ceku [as interpreted],
18 and myself --
19 Q. Can I stop you there, sir.
20 MS. KRAVETZ: Maybe we should go into private session for this
22 JUDGE MOLOTO: May the Chamber please move into private session.
23 [Private session]
11 Pages 1164-1188 redacted. Private session.
17 [Closed session]
24 [Open session]
25 THE REGISTRAR: Your Honours, we're back in open session. Thank
2 JUDGE MOLOTO: Thank you so much. We'll take a break and come
3 back at half past 12.00. Court adjourned.
4 --- Recess taken at 12.03 p.m.
5 --- On resuming at 12.30 p.m.
6 JUDGE MOLOTO: Madam Kravetz.
7 MS. KRAVETZ: Yes, Your Honour. Could we please go into closed
8 session so the witness can be brought back in.
9 JUDGE MOLOTO: May the Chamber please move into closed session.
10 [Closed session]
23 [Private session]
11 Pages 1191-1194 redacted. Private session.
22 [Open session]
23 THE REGISTRAR: Your Honours, we're back in open session. Thank
25 JUDGE MOLOTO: Thank you very much, Mr. Registrar.
1 Yes, Madam Kravetz.
2 MS. KRAVETZ: Thank you.
3 Q. Sir, did you see Ramush Haradinaj again after the incident that
4 you have described?
5 A. Yes, I saw him a couple of times.
6 Q. Could you tell us about the next time you saw him after this
7 incident, if you recall?
8 A. The next time after this incident was when he came, because we
9 were billeted in Prapaqan, in a school, the entire 134th Brigade was
10 stationed there with all its officers. One day Ramush and Toger came
11 there. They entered the premises of the school. There were guards
12 there, guarding that barracks, as we called it then, and Haradinaj and
13 Toger entered the yard of the school and demanded that that facility be
14 vacated within 20 or 30 minutes, I don't remember exactly.
15 Q. You had told us earlier that the 134th Brigade was billeted in
16 the village of Isniq. Do you recall when the brigade moved to the
17 village of Prapaqan, to that school you've referred to?
18 A. After some days, I was still recovering. After I recovered, when
19 I came there, I saw that they were stationed in the school in Prapaqan.
20 Maybe two or three weeks, I think.
21 Q. And you said when -- referring to when Ramush and Toger came to
22 the premises of the school, you said that they entered the school-yard
23 and demanded that the facility be vacated. Who did they speak to and say
24 this to?
25 A. I don't know initially who they spoke to. But when they fired in
1 the air, everybody came out. And then what was -- to see what was
2 happening. And Ramush and Toger were there together with some other
3 soldiers dressed in black clothes. That improvised barracks had -- was
4 full of soldiers in black clothes.
5 Q. When you say that they fired in the air and everybody came out,
6 whom are you referring to? Who fired in the air?
7 A. Everybody. The officers, the soldiers came out to see what was
8 happening, because part of the brigade was -- were drilling. Some others
9 were inside the school. Tahir Zemaj too came out to see and asked what
10 the problem was, and then he was told that: You must free the school and
11 go to where you came from.
12 These were the words that I heard.
13 Q. I was asking who was firing. I understand who went out to see
14 what was happening, but who was firing in the --
15 A. Ramush.
16 Q. And how did Tahir Zemaj re --
17 A. Ramush.
18 Q. And how did Tahir Zemaj respond when Ramush Haradinaj said these
19 words to him, You must free the school and go to where you came from?
20 A. He said this is not good. We shouldn't engage in fratricide. We
21 will vacate this facility. That's not a problem.
22 Q. And did that happen? Did the 134th Brigade vacate the school in
24 A. Yes. All the officers packed their bags and vacated the
25 barracks, but they wanted to leave the soldiers there. Ramush and
1 Rrustem Tetaj started to talk in front of the army and they -- I was
2 present there, and they said that: This is the hand of Serbia. They
3 have come from Serbia. Don't listen to them.
4 At those moments, all the soldiers threw down their weapons --
5 their weapons and wanted to leave the barracks.
6 Q. Did the soldiers leave the barracks?
7 A. At that moment they didn't do so immediately, but they dropped
8 their weapons on the ground. They didn't agree, of course, with what was
9 being told them -- to them to do, to free the barracks. We went again to
10 this house in Isniq, to this guest-room. This didn't last -- this
11 incident didn't last long.
12 Q. Did the 134th Brigade eventually leave Kosovo?
13 A. No, no. Because in the evening Rrustem Tetaj talked with
14 Tahir Zemaj. They decided to have a meeting in Lluke e Poshtme.
15 Q. You've referred to a person by the name of Rrustem Tetaj. Could
16 you tell us who he is?
17 A. He acted as a commander in Lluke e Poshtme staff.
18 Q. And just for the record could you again tell us the name of the
19 village where they decided to have a meeting?
20 A. To my recollection it was called Lluke e Poshtme, where
21 Rrustem Tetaj was.
22 Q. And do you know what happened during this meeting in that
24 A. I can't be precise, but I know that an agreement was reached and
25 that everyone turned back to the school of Prapaqan, to that improvised
1 barracks that I mentioned.
2 Q. I know you've said you can't be precise, but do you know what
3 sort of agreement was reached? And if you don't know, you can say so.
4 A. I don't know precisely. I told you that I only know that all
5 officers returned to the barracks and that's it. I don't know any more
6 about the agreement because I was not there.
7 Q. That's fine, sir.
8 Sir, during your testimony today you have referred to Toger, and
9 I asked you earlier what was his full name and you said that that was
10 Idriz Balaj. Can you tell us when you first became aware that this
11 person whom you knew by the name of Toger was called, in fact,
12 Idriz Balaj?
13 A. I can't remember precisely when and how I learned that it was
14 Idriz Balaj. I only recall that people were saying that he was --
15 MR. GUY-SMITH: I'm going to object at this time. The witness
16 has answered the question: "I can't remember precisely when and how I
17 learned that it was Idriz Balaj," which is the answer to Ms. Kravetz's
19 JUDGE MOLOTO: Madam Kravetz.
20 MS. KRAVETZ: That's fine. I can continue with my questions.
21 Q. Sir, based on the information you had at the time - and I'm
22 speaking about 1998 - what kind of reputation did this person you knew as
23 Toger have at the time?
24 MR. GUY-SMITH: Well --
25 JUDGE MOLOTO: Yes, Mr. Guy-Smith.
1 MR. GUY-SMITH: -- I'm going to -- I'm going to object to that
2 question on series of grounds, not the least of which is relevance. It's
3 also prejudice outweighs the probative value. Also I believe under
4 Rule 93 it's an impermissible question. And once again it goes to the
5 very thing that I started this trial with, which is issues concerning
6 rumour are inappropriate and Mr. Balaj's reputation is not an issue in
7 this case.
8 And I trust the Prosecution does not attempt to seek a conviction
9 based on reputation, especially reputation based on rumour.
10 MS. KRAVETZ: I'm asking the witness about his personal knowledge
11 based on the information he had at the time, and he can respond whether
12 he had any information or did not have such information.
13 MR. GUY-SMITH: That was not the question posed.
14 MR. EMMERSON: Could I simply say this: If Ms. Kravetz wishes to
15 adduce evidence of reputation, she would need first to identify to what
16 issue that goes, in other words, to what is its relevance said to be
17 judged against. But if it's simply suggested that evidence of reputation
18 is going to assist this Trial Chamber in considerations of the merits of
19 the proceedings, then, in our submission, that would plainly be an
20 unarguable position.
21 So before evidence of reputation, particularly generalised
22 information of this kind, is adduced, as a very minimum Ms. Kravetz must
23 specify as to what the issue is said to be relevant.
24 JUDGE MOLOTO: Yes, Madam Kravetz.
25 MS. KRAVETZ: I can rephrase my question, Your Honour, if it's
1 easier to proceed in another manner.
2 May I proceed, Your Honour?
3 JUDGE MOLOTO: If you are going to rephrase, you may proceed,
5 MS. KRAVETZ:
6 Q. Sir, you've told us about the involvement that this person you
7 knew as Toger had in the incident you've described today. Do you know
8 whether any other soldiers of the FARK forces were mistreated in a
9 similar way by Toger?
10 MR. GUY-SMITH: I'll object to those -- that question on two
11 grounds: One, relevance; and the other is that it's leading.
12 JUDGE MOLOTO: Objection overruled.
13 MS. KRAVETZ:
14 Q. You can respond, sir.
15 A. The same was suffered by a soldier of the 134th Brigade in Isniq.
16 Toger had beaten him, had stripped him of his clothes. This was a young
17 man from Drenoc. His name was Bujar. I can't recall his surname now.
18 Q. How do you know this, sir?
19 A. He came and informed the commander. These cases with Toger did
20 not stop. Even after the agreement had been reached, he continued with
21 his gestures and his acts against the soldiers of the 134th Brigade. As
22 far as I remember, he once came to the barracks to take Rexh Osaj to
23 arrest him or to take him. And had Tahir Zemaj not intervened, that
24 would have happened. He entered the barracks without any permission and
25 he wanted to take Rexh Osaj with him. I don't know where he wanted to
1 take him or what he wanted to do with him.
2 Q. And you said "had Tahir Zemaj not intervened, that would have
3 happened." What did Tahir Zemaj do when Toger came to the barracks?
4 A. I was not there the moment when this happened. But when I went
5 to the barracks later on, Rexh Osaj informed me that Toger had gone to
6 the barracks, wanted to take Rexh Osaj with him, and Tahir Zemaj had
7 intervened. And Toger had been in one room at the time, unarmed, and
8 then later they had talked and released him.
9 Q. And do you know why it is that Toger came looking for Rexh Osaj?
10 MR. GUY-SMITH: Objection, calls for speculation.
11 JUDGE MOLOTO: Overruled.
12 MS. KRAVETZ:
13 Q. You may respond, sir.
14 A. Rexh Osaj, during the day --
15 JUDGE MOLOTO: Sorry, sorry, the question was: Do you know why
16 it is that Toger came looking for Rexh Osaj? Your answer is going to be
17 "Yes, I know" or "I don't know."
18 THE WITNESS: [Interpretation] Yes, I do.
19 JUDGE MOLOTO: You may proceed, ma'am.
20 MS. KRAVETZ: Thank you.
21 Q. Could you tell us why, sir?
22 A. After Gllogjan had fallen into Serb hands, Rexh Osaj had gone to
23 Irzniq, to the makeshift hospital in Irzniq, to retrieve some of the
24 medication or other medical equipment that was there, IV drips and other
25 things, whatever could be rescued from the hospital. And then he had
1 gone back to the barracks, and Toger had come there later and asked him
2 why he had been there, and accused him that, You have come to spy on us,
3 to find out where our bases are. And so on.
4 Q. Sir, other than those incidents that you have described now, are
5 you aware of any other incidents involving Toger where FARK soldiers were
7 A. I can't remember at this precise time. There was another
8 incident I just remembered --
9 MR. GUY-SMITH: Is this a FARK incident?
10 JUDGE MOLOTO: We don't know --
11 MR. GUY-SMITH: Fine -- [Overlapping speakers] ...
12 JUDGE MOLOTO: [Overlapping speakers] ... testifies.
13 THE WITNESS: [Interpretation] To my recollection, there was a
14 young man, a soldier of the 134th Brigade, he told us about his father
15 who had been in an -- involved in an incident in Irzniq. His father was
16 in a car when Toger had tried to stop him and he had not stopped right
17 where Toger had told him to --
18 MR. GUY-SMITH: [Previous translation continues] ... the question
19 was related to FARK. This is not anything to do with FARK, although the
20 soldier who's relating the incident may have been a FARK soldier. It's
21 not a FARK incident.
22 JUDGE MOLOTO: Are we -- is this witness limited to testifying on
23 FARK incidents?
24 MR. GUY-SMITH: The question that was -- the question that was
25 asked related to FARK incidents. At page 78, line 18:
1 "Sir, other than those incidents that you have described now, are
2 you aware of any other incidents involving Toger where FARK soldiers were
4 And since that is the question that was asked, the answer that
5 was given does not respond to the question that was asked. It is
6 non-responsive and irrelevant.
7 JUDGE MOLOTO: Madam Kravetz.
8 MR. EMMERSON: Sorry, just before Madam Kravetz responds --
9 JUDGE MOLOTO: Can she deal with one thing at a time?
10 MR. EMMERSON: Very well.
11 MS. KRAVETZ: Yes, I can rephrase my question.
12 JUDGE MOLOTO: You can rephrase your question, okay.
13 Mr. Emmerson.
14 MR. EMMERSON: Perhaps I should wait to see how Ms. Kravetz
15 rephrases her question.
16 JUDGE MOLOTO: Yes, Madam Kravetz.
17 MS. KRAVETZ:
18 Q. Sir, other than those incidents that you've described involving
19 FARK soldiers, are you aware of any other incidents involving the person
20 you knew as Toger where persons were mistreated? And by that I mean
21 civilians or other soldiers were mistreated.
22 MR. EMMERSON: Your Honour, that does engage the question that I
23 would -- wanted to raise. Your Honours have ruled this witness's
24 testimony admissible pro tem solely on the basis that it relates to a
25 pleaded allegation in the JCE concerning the exclusion of FARK. Defence
1 objected to the relevance of this witness's testimony to the counts which
2 are in issue in the re-trial. The Prosecution responded: Well, we've
3 chosen and are bound by the pleading of the JCE as originally before the
4 first trial, which included an allegation concerning a joint enterprise
5 to exclude FARK from Kosovo. And on that basis the Trial Chamber
6 determined that this evidence was admissible. Anything travelling beyond
7 that, which is apparently what the last question seeks to do, in our
8 submission, goes beyond the terms of that ruling.
9 JUDGE MOLOTO: Is your submission, Mr. Emmerson, that the pleaded
10 JCE is limited to the exclusion of FARK?
11 MR. EMMERSON: No, Your Honour. This -- I've got the decision in
12 front of me. This decision of Your Honours on the admissibility of
13 evidence was on the 23rd of August, 2011, at paragraph 51 --
14 THE INTERPRETER: Thank you for reading slowly.
15 MR. EMMERSON: Indicates that the suggested evidence related to a
16 clash between the KLA and FARK and continues that it was relevant to
17 allegations concerning the acts and conduct as alleged in the joint
18 criminal enterprise in the indictment.
19 Well, there's obviously some debate to be had in due course about
20 whether FARK has anything remotely to do with the charges that the
21 Tribunal is trying. But be that as it may, evidence that is beyond that,
22 which the -- this witness was called to testify about, namely, the
23 clashes between FARK and the KLA and upon which the Trial Chamber has
24 determined his evidence is admissible, in our submission, travels beyond
25 the ruling.
1 JUDGE MOLOTO: Mr. Emmerson, you've just read from the decision,
2 and I didn't hear, from your reading, that the JCE in this case is
3 limited to FARK or to the exclusion of FARK. And that's the question I'm
4 asking you.
5 MR. EMMERSON: No, Your Honour, clearly that is not the case.
6 JUDGE MOLOTO: [Overlapping speakers] -- so --
7 MR. EMMERSON: Indeed, the exclusion of FARK, in our submission,
8 has nothing remotely to do with the JCE that is, in fact, being tried at
9 this Tribunal.
10 JUDGE MOLOTO: Now we are probably talking at cross-purposes. My
11 question to you is: Is it your submission that the JCE in this case is
12 limited to the exclusion of FARK?
13 MR. EMMERSON: [Overlapping speakers] ... Your Honour, I --
14 JUDGE MOLOTO: And then you read me the decision of the
15 Trial Chamber. What you read still hasn't answered my question.
16 MR. EMMERSON: Well, no, I mean, I think, Your Honour, that is
17 the answer to the question. Of course it's not confined to the exclusion
18 of FARK. The JCE is pleaded more broadly than that as in the original
20 JUDGE MOLOTO: That's right.
21 MR. EMMERSON: But, as the Trial Chamber is well aware, the issue
22 for this re-trial is the JCE insofar as it applied to the commission of
23 six crimes at Jabllanice. But it still retains an allegation concerning
24 the FARK-KLA conflict. That is what this witness's evidence has been
25 admitted as being relevant to.
1 JUDGE MOLOTO: This witness is not -- are you saying this witness
2 has been called here to come and testify only about FARK?
3 MR. EMMERSON: Yes.
4 JUDGE MOLOTO: That's not the way I understand it.
5 MR. EMMERSON: Very well.
6 JUDGE MOLOTO: Thank you.
7 You may proceed, ma'am.
8 MS. KRAVETZ: Thank you, Your Honour. Just if I could have a
9 moment of indulgence just to find my last question.
10 JUDGE MOLOTO: Okay.
11 MS. KRAVETZ:
12 Q. Sir, I'm going to repeat my last question to you. I asked you if
13 other than those incidents that you've described involving FARK soldiers
14 are you aware of any other incidents involving the person you knew as
15 Toger where persons were mistreated?
16 MR. GUY-SMITH: Well, I'm going to object to that because it goes
17 outside of not only the purpose that this witness has been called
18 for - and I understand your position, Judge - but it also does not tie
19 into the JCE as pled.
20 JUDGE MOLOTO: What is the JCE as pled, Mr. Guy-Smith?
21 MR. GUY-SMITH: The JCE as pled is as follows: The common
22 criminal purpose of the JCE was to consolidate the total control of the
23 KLA over the Dukagjin Operational Zone by the unlawful removal and
24 mistreatment of Serb civilians and by the mistreatment of
25 Kosovar Albanian and Kosovar Roma/Egyptian civilians and other civilians
1 who were or perceived to have been collaborators with the Serbian forces
2 or otherwise not supporting the KLA.
3 And it is that to what I'm referring to right now.
4 JUDGE MOLOTO: Then I must rule you out of order, Mr. Guy-Smith.
5 MR. GUY-SMITH: Well, unless there's a causal connection
6 between --
7 JUDGE MOLOTO: Causal connection --
8 MR. GUY-SMITH: -- between -- excuse me. Unless there's a causal
9 connection between, as the Prosecution asserts, mistreatment and the
10 purpose of that mistreatment as alleged in the indictment, it's not
12 JUDGE MOLOTO: Well, you have told us that the purpose of the JCE
13 was to consolidate control within that area and by -- and that was done
14 by mistreatment of Serb civilians and by the mistreatment of
15 Kosovar Albanian, Kosovar Roma/Egyptian civilians. I think we are
16 dealing here with maybe someone who was a civilian -- or I don't know
17 what the status of this person is.
18 MR. GUY-SMITH: But it's not only that, Your Honour. There is a
19 relationship between the mistreatment of those civilians and the purpose
20 of that mistreatment.
21 JUDGE MOLOTO: Well, we --
22 MR. GUY-SMITH: And until there's a nexus established between
23 those two, which is mistreatment and the purpose of that mistreatment, it
24 is irrelevant.
25 JUDGE MOLOTO: And we will hear what the purpose was if this
1 witness can be allowed to answer questions.
2 MR. GUY-SMITH: But that's a different issue, Your Honour,
3 because the question that's being put forth is not that but, rather: Do
4 you know of any mistreatment?
5 JUDGE MOLOTO: We will be told why was that mistreatment
6 exercised or --
7 MR. GUY-SMITH: Well, we have yet to be told that at all with
8 regard to any witness. I mean with regard to any of this gentleman's
10 JUDGE MOLOTO: Okay.
11 You may proceed, ma'am.
12 MS. KRAVETZ:
13 Q. Sir, do you remember my question or should I put it to you again?
14 A. Could you repeat the question, please.
15 Q. Okay. I had -- and I'm just going to rephrase it just not to
16 waste time looking for my question.
17 I had asked you, sir, whether other than for the incidents you've
18 described involving FARK soldiers are you aware of any other instances
19 involving the person you knew as Toger where persons were mistreated?
20 And by "persons," I mean both civilian and soldiers. Are you aware of
21 any other incidents?
22 A. Yes. In Irzniq - and this information I got from the son of the
23 person in question who was travelling in his car - Toger ordered him to
24 stop but he was not able to stop immediately at the place where Toger had
25 asked him. The car had stopped a few metres further. Toger went there
1 up to the car and directed the pistol to him and told him, You know, when
2 I tell you to stop you have to stop where I tell you and not a few metres
4 Q. And did Toger do anything? Or what happened after he said
5 these -- do you know what happened after he said these words?
6 A. I didn't understand the question.
7 Q. You told us that Toger went up to the car and directed the pistol
8 at this person and told him, You know, when I tell you to stop you have
9 to stop where I tell you, not a few metres further. Do you know what
10 happened after he said these words?
11 A. Before he said those words, he had shot him in the foot and then
12 he told him, You have to stop where I tell you.
13 Q. And who was this person that was shot at by Toger on that
15 A. Adem Lokaj.
16 MR. GUY-SMITH: I'm going to object to the question as phrased.
17 He -- she can ask the question: Who was he told was shot, but that
18 assumes that he was shot. There is an assumption being made here.
19 JUDGE MOLOTO: Madam Kravetz.
20 MS. KRAVETZ: I think it -- the witness has already indicated
21 that the person was shot, but I --
22 JUDGE MOLOTO: He has told -- he has indicated that what the
23 objection is, that the witness has been -- was --
24 MS. KRAVETZ: Told.
25 JUDGE MOLOTO: -- told us that he was told that the person had
1 been shot. But now you are stating it as a fact, that: Who was this
2 person who was shot? Now, you've got to say: Who was this person who
3 you were told was shot? That's what you are being asked to do.
4 MS. KRAVETZ: I can put the question again to the witness.
5 Q. Sir, who was this person you were told was shot by Toger on that
7 A. Adem Lokaj.
8 Q. And who was he, do you know?
9 A. He was the father of a young man who was a member of the
10 134th Brigade.
11 Q. Thank you, sir.
12 Sir, did you eventually leave Kosovo in 1998?
13 A. Yes.
14 Q. Can you tell us why you left Kosovo?
15 A. I left because I wanted to be safe and not be killed. Because
16 many things had happened and I thought maybe one day I could be killed
17 and nobody would know whether I would be killed by Albanians or by Serbs.
18 I had Commander Zemaj and he authorised me to leave Kosovo, and that's
19 what I did. There were other stronger reasons. When we were in Ulqin
20 when -- where we heard that five people had been killed, all of them were
21 members of the 134th Brigade or later as it was known, the
22 Mergimi Brigade. And it was said that these people had been taken by
23 Toger and killed, and it was for that reason that I then left Montenegro
24 as well and set off for Europe.
25 MR. GUY-SMITH: For purposes of the record, I interpose an
1 objection with regard to this particular rumour.
2 MS. KRAVETZ: I was about to ask the witness for the source of
3 this information.
4 Q. Who did you hear this from, this incident involving the killing
5 of five people, members of the 134th Brigade?
6 A. My brother.
7 Q. Thank you, sir.
8 MS. KRAVETZ: Your Honour, at this stage I have no further
9 questions for this witness. I would like to ask, given that there are
10 persons present in the public gallery, that if my colleagues are going to
11 pose any questions regarding the incident that the witness has described,
12 that that be done in private session for the same reasons that I led the
13 witness through that evidence in private session.
14 I would also ask that if reference is going to be made to a
15 protected witness who testified in the previous case in relation to the
16 same incident, that that -- those questions be put to the witness in
17 private session, again for purposes of protecting the identity of that
18 witness. Thank you.
19 JUDGE MOLOTO: And also when you see and there's an occasion
20 where the need arises, you can rise and tell us when, because we won't
22 Any cross-examination, Mr. Emmerson? We have 20 minutes.
23 MR. EMMERSON: Yes, well I'll make a start, but I shall be some
24 time into tomorrow with this witness.
25 Cross-examination by Mr. Emmerson:
1 Q. Witness 77, I'm going to ask you some questions about FARK
2 generally. But before I do, can I just clarify one matter with you.
3 MR. EMMERSON: And this is as much for Your Honours' assistance
4 as for the witness's at this stage.
5 Q. There is no dispute that there was a confrontation in Gllogjan on
6 the 4th of July in which there was physical confrontation and in which
7 shots were fired. And it's the detail and the context of that incident
8 that I want to ask some questions about.
9 Witness 77, first of all, I just want to get the picture clear as
10 far as the entry of FARK into Kosovo is concerned. So that the
11 Trial Chamber understands, FARK -- the FARK brigades consists of, you
12 told us, about 200 men and 25 officers. Is that correct?
13 A. Yes.
14 MR. EMMERSON: Now, there's obviously an automatic process by
15 which my microphone is turned off and the witness is answering. I can
16 see the Registrar trying to assist me.
17 THE REGISTRAR: If you can please switch off the microphone every
18 time the witness is answering the question. Thank you.
19 MR. EMMERSON: Very well.
20 Q. The FARK forces considered themselves to be acting with the
21 authority of the Kosovar Albanian government in exile; is that correct?
22 A. They didn't claim to. They acted.
23 Q. And the self-styled so-called government in exile, did that
24 government have a mandate as a result of elections?
25 A. Yes.
1 Q. Where and when were those elections held, Witness 77?
2 A. In Kosova. I don't remember when.
3 Q. And were they organised with a universal right to vote so that
4 all Kosovar Albanians had an opportunity to choose their government?
5 A. Yes.
6 Q. And the end result was a force of about 225 men, you've told us.
7 And did you, those of you who entered Kosovo at the end of June, did you
8 think you could defeat the Serbs with about 225 men on your own?
9 A. We could have defeated the Serbs even without weapons if the
10 people were what they should be, to fight for their country and not for
11 the past. And we were not as many as you mentioned, but we had soldiers
12 being drilled in Papaj [as interpreted], and they were coming to Kosova
13 every day. We were not employing soldiers who had not the least
14 knowledge of fighting and of using weapons, people who joined the
15 fighting without knowing how to fire a shot. That's why the Kosovo
16 government was there, to organise the people, to organise the youth, to
17 train them how to fight, and to have a single command and not to have as
18 they were.
19 Q. I'll come in a few moments to start asking you some questions
20 about the way in which FARK entered and the conflict between the two, but
21 based on your own personal experience are you suggesting that the FARK
22 forces that entered Kosovo at the end of June/beginning of July were
23 professional in training?
24 A. Yes.
25 Q. So I take it that you yourself had had some training, had you, in
1 military matters?
2 A. Me personally, no.
3 Q. Well, you told us a minute ago the forces were professional. You
4 now tell us you had had no military training. Had any of the soldiers
5 had military training; and if so, what percentage, approximately?
6 A. I already explained that the 25 officers were professional
7 soldiers. But I meant the army in general. I meant the young people who
8 were being trained on how to use weapons, how to dismantle the weapons,
9 how to defend yourself, when to fire, how many munition you should have.
10 Elementary things. As for the professionals, I referred only to the
11 officers, the army officers, not to the army in general, to the
12 rank-and-file soldiers who at least knew how to fire a weapon.
13 Q. And what was your rank when you entered Kosovo?
14 A. I was simple soldier, a voluntary soldier. I wanted simply to
15 help my people. I didn't have any ranks, and I was not interested in
16 anything to do with ranking.
17 Q. Given that you've told us that the 25 officers were professional,
18 presumably they taught you - you personally - at least the basics of the
19 laws of war, did they, that you could kill combatants but not kill
20 civilians? Did they teach you that?
21 A. They didn't teach us that, but the commander of the brigade kept
22 saying always: Whatever happens, take it easy because we are not here to
23 fight against the Albanians but the Serb forces. And whatever may
24 happen, for the moment we should disregard it because we don't want to
25 engage in fratricide. This is what he told us.
1 Q. Leaving fratricide apart for a moment: When you personally
2 entered Kosovo, did you know that you were lawfully allowed to shoot
3 combatants but that you were not lawfully allowed to shoot
4 non-combatants, or civilians? Did you know that difference, you
6 A. Of course.
7 Q. So on the 4th of July, the day that this confrontation occurred,
8 let's just be clear --
9 MS. KRAVETZ: Your Honour, could we go into private session.
10 MR. EMMERSON: I'm in Your Honour's hands.
11 JUDGE MOLOTO: May the Chamber please move into private session.
12 [Private session]
11 Page 1217 redacted. Private session.
16 [Open session]
17 THE REGISTRAR: Your Honours, we're back in open session. Thank
19 JUDGE MOLOTO: Thank you so much.
20 Yes, Mr. Emmerson.
21 MR. EMMERSON:
22 Q. Witness 77, you've given some answers in private session about a
23 particular incident and I'm not asking you about the details of that
24 incident. But you've just confirmed to us on the record in private
25 session that on the day in question you were, as were your colleagues,
1 active combatants on active service. That's correct, is it not?
2 A. Yes.
3 Q. Now, returning to the entry of the FARK forces into Kosovo at
4 the -- that in the latter part of June, I want to put some specific dates
5 to you, bearing in mind of course that this Tribunal has heard detailed
6 evidence from witnesses, including a senior FARK officer, about the
7 process by which FARK forces came to enter Kosovo. And I want to suggest
8 to you that after your entry across the border from Albania there were,
9 in fact, three meetings in the Jasiq/Junik area between the commanders of
10 your force and the commanders of the Kosovo Liberation Army who were
11 already on the ground inside Kosovo.
12 A. It is possible.
13 Q. I'm going to suggest to you that one was on the 25th of June in
14 Jasiq; that a second took place on the 26th of June in Jasiq and then in
15 Junik, and that it was on that occasion that Mr. Haradinaj was present;
16 and that a third took place on the 30th of June in Junik. Is that
17 possibly right?
18 A. I don't remember.
19 Q. You knew, didn't you, that there was a significant and principled
20 difference of opinion between your commander, Tahir Zemaj, and the
21 commanders who were already operating on the ground inside Kosovo about
23 A. I didn't understand your question very well.
24 Q. I'm suggesting to you that there was a dispute between the
25 commanders of FARK, including Tahir Zemaj, and the commanders of the KLA
1 inside Kosovo, including Mr. Haradinaj and Mr. Maloku, about the
2 deployment of FARK soldiers. And I can put it a bit more specifically.
3 Those who were already organised on the ground inside Kosovo
4 wanted the FARK brigades to be distributed amongst the already organising
5 village defence units, whereas the FARK commanders under Zemaj considered
6 it essential that all of the 225 FARK officers remain together and in one
8 That was the dispute, wasn't it?
9 A. I don't believe so. I don't know.
10 MR. EMMERSON: Well, Your Honour, I see the time. I'm not sure
11 what point Your Honours wish to rise, but to take this line further I'm
12 going to need to go into private session to identify the senior commander
13 who testified at the previous trial and to put to this witness the
14 evidence that that individual gave.
15 JUDGE MOLOTO: Well, it does seem, of course, that you are not
16 going to be able to do that within the time left for the day, so we might
17 have to stop at this stage if it is convenient for you.
18 MR. EMMERSON: It's convenient for me.
19 JUDGE MOLOTO: We'll do that.
20 May the Chamber please move into closed session.
21 And as we do that, before we are finally into closed session, I
22 just want to warn the witness, Mr. Registrar, to say that:
23 Sir, we are not done with your testimony. You will come back
24 here tomorrow. But we want to say to you that remember you are on the
25 witness-stand; you may not talk to anybody about this case until you have
1 been finally excused from further testifying. Especially, you may not
2 talk to these people from the Prosecution. Thank you so much.
3 Yes, we may move into closed session. Thank you.
4 [Closed session]
15 --- Whereupon the hearing adjourned at 1.46 p.m.,
16 to be reconvened on Tuesday, the 27th day of
17 September, 2011, at 9.00 a.m.