1 Monday, 25 June 2012
2 [Prosecution Closing Statement]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.16 p.m.
6 JUDGE MOLOTO: Good afternoon to everyone in and around the
8 Mr. Registrar, would you please call the case.
9 THE REGISTRAR: Good afternoon, Your Honours. This is case
10 IT-04-84bis-T, the Prosecutor versus Ramush Haradinaj, Idriz Balaj, and
11 Lahi Brahimaj.
12 JUDGE MOLOTO: Thank you very much. May we please have the
13 appearances for the day starting with the Prosecution.
14 MR. ROGERS: Yes. Good afternoon, Your Honours. Paul Rogers for
15 the Prosecution, appearing together with Mr. Aditya Menon,
16 Ms. Barbara Goy, Ms. Daniela Kravetz, and our Case Manager,
17 Ms. Line Pedersen.
18 JUDGE MOLOTO: Thank you very much and for Mr. Haradinaj.
19 MR. EMMERSON: Good afternoon, Your Honour. Ben Emmerson for
20 Ramush Haradinaj, together with Rodney Dixon, Andrew Strong,
21 Annie O'Reilly, and Kerrie Rowan.
22 JUDGE MOLOTO: Thank you so much.
23 And for Mr. Balaj.
24 MR. GUY-SMITH: Good afternoon, Your Honour. Gregor Guy-Smith,
25 Colleen Rohan, Holly Buchanan, Gentian Zyberi, and our new intern,
1 Ramon Barquero, appearing on behalf of Mr. Idriz Balaj.
2 JUDGE MOLOTO: Thank you very much, Mr. Guy-Smith.
3 And for Mr. Brahimaj.
4 MR. HARVEY: Good afternoon, Your Honours. Richard Harvey,
5 together with Paul Troop, Luke Boenisch, and Sylvie Kinabo on behalf of
6 Mr. Brahimaj.
7 JUDGE MOLOTO: Thank you very much, Mr. Harvey. I guess we all
8 know why we are here today, to hear closing arguments from the parties.
9 Mr. Rogers.
10 MR. ROGERS: Your Honours, thank you. Your Honours, for your
11 information, I expect to be between an hour and a half and two hours in
12 my submissions. And, Your Honours, I've attempted to try to ensure that
13 as much of this can be in open session as much as possible. Having said
14 that, immediately there is a matter I just want to deal very briefly with
15 in private session before I start the fullness of my submissions.
16 JUDGE MOLOTO: May the Chamber please move into private session.
17 [Private session]
16 [Open session]
17 THE REGISTRAR: Your Honour, we're in open session.
18 JUDGE MOLOTO: Thank you Mr. Registrar.
19 Yes, Mr. Rogers.
20 MR. ROGERS: Your Honours, in my submissions, I will present an
21 overview first of the case against the accused. Secondly, I will address
22 the crimes in summary at Jabllanice. Third, I will make some remarks
23 about the assessment of witness evidence in general and some specific
24 issues relating to Witness 3 and the protected witness. Fourthly, I will
25 turn to the issue of the accused's criminal responsibility. And, fifthly
1 and finally and briefly, will make some remarks in relation to sentence.
2 Your Honours, turning to the overview, Your Honours, the crimes
3 the subject of this indictment and for which the three accused,
4 Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj are criminally
5 responsible occurred as part of the brutal elimination of opposition by
6 the KLA to which they subscribed.
7 The accused were senior and respected commanders in the KLA.
8 Together, they pursued the elimination of opposition by mistreating,
9 torturing, and murdering perceived opponents at the Jabllanice prison.
10 This was a small facility located in one of only two buildings on a small
11 plot of land on the edge of Jabllanice village. Due to its size, for
12 those members of the KLA attending that place, it was, we submit,
13 impossible not to know what was going on.
14 The close co-operation of the three accused, aided by the strong
15 familial ties between Mr. Haradinaj and Lahi Brahimaj, ensured and
16 encouraged the continued use of the Jabllanice prison facility throughout
17 the indictment period to pursue this unlawful enterprise.
18 Ramush Haradinaj was, throughout, a highly respected KLA
19 commander in the Dukagjin area of Western Kosovo. His family home was in
20 Glodjan. His stalwart defence of it in March 1998 against a concerted
21 attack by Serbian forces propelled him to almost God-like status within
22 the region.
23 As Cufe Krasniqi, a KLA soldier, put it, P54, paragraphs 40 to
25 "This incident gave Ramush Haradinaj immense popularity in
1 Kosovo." He went on, "The attack on Glodjan was the first public victory
2 for the guerilla KLA army." And he said, "After this incident the
3 village of Glodjan became the most respected UCK or KLA headquarters
4 after Jabllanice." And finally, "Glodjan was accepted as the focal point
5 of the KLA in the whole Peje and Decan, and Ramush Haradinaj as the
6 popular commander of the UCK forces in the Dukagjin area."
7 Not far from Glodjan lay the home of Ramush Haradinaj's maternal
8 uncle, Lahi Brahimaj. He, too, was a powerful KLA commander based in the
9 more remote and secure location of Jabllanice. Idriz Balaj was the
10 commander of a special unit known as the Black Eagles. He was the
11 trusted lieutenant of Ramush Haradinaj, even known as Togeri, meaning
13 As Haradinaj's trusted lieutenant, Balaj was an important link
14 between Brahimaj and Haradinaj. As commander of the feared Black Eagles,
15 a unit under the direct command of Ramush, Balaj reported directly to
16 Haradinaj. He was seen together with Haradinaj regularly. He was
17 regarded as very close to Haradinaj, a view shared by both those within
18 the KLA and the Serbian intelligence services. So close was this
19 relationship that KLA soldiers needed special permission from Haradinaj
20 to visit Balaj and his Black Eagles. Zoran Stijovic referred to Balaj as
21 basically a bodyguard of Ramush Haradinaj. He said, "He and his group
22 were constantly by the side of Ramush Haradinaj." That's at P122,
23 transcript 9073.
24 Whilst the accused were, in part, fighting a war to achieve
25 control of the Dukagjin Zone, from the outset they pursued that aim by a
1 mixture of legitimate military action and the illegitimate illegal
2 targeting of civilians suspected as spies and collaborators and those
3 considered opponents of the KLA. For liability under a joint criminal
4 enterprise, it is sufficient for the aim to be achieved through criminal
6 Your Honours, I will deal later with the accused's position and
7 responsibility, but I'll summarise this now.
8 Ramush Haradinaj, through his position of authority arising from
9 the respect accorded to him as a hero and a commander and through his
10 strong family ties, was able to influence the conduct of others, and, in
11 particular, his uncle, Lahi Brahimaj; Idriz Balaj; and the soldiers under
12 their individual command. His endorsement and support for the
13 elimination of opposition through illegal means, coupled with his
14 position of authority and respect, acted as positive encouragement to the
15 perpetrators of the crimes at Jabllanice. His failure to use his
16 authority and influence to stop the mistreatment, particularly after he
17 assumed formal command of the facility in June 1998, coupled with his
18 continuation of the repression of opposition by banning political
19 activity of any party or association of a political nature, and by
20 ordering the military police to root out collaborators show his continued
21 support for the repressive aims of the KLA. As commander from June 1998,
22 he had a duty to protect those in the custody of his subordinates.
23 Lahi Brahimaj was central to the operation of the oppressive
24 regime of torture, mistreatment, abuse and murder at the Jabllanice
25 prison. His command of that facility, the soldiers in it, and his
1 position of influence within the KLA and his family, together with his
2 personal involvement in the direct perpetration of crimes against victims
3 named in the indictment including in ordering or instigating their
4 murders, can leave no doubt as to his criminal responsibility under the
5 indictment and is the clearest possible evidence of the pursuit of the
6 repressive aims of the KLA.
7 Idriz Balaj regular presence at the prison in Jabllanice, his
8 direct perpetration of crimes, his manifest relish for violence as
9 demonstrated by his fearsome reputation, his behaviour towards others,
10 such as in the FARK incidents set out in our brief at paragraphs 80 to 84
11 and in his stated aim of being present in Jabllanice to "kill people," as
12 attested to by the protected witness, all demonstrate his commitment to
13 the unlawful repression of opposition throughout the Dukagjin area. By
14 his conduct, he encouraged others.
15 The shared intent of the three accused to eliminate
16 collaborators, spies and opponents of all types is manifest and obvious.
17 To this end, in the context of this armed conflict, this included through
18 torture, mistreatment, and murder.
19 The accused worked together to achieve this end. Jabllanice and
20 Glodjan throughout co-operated closely together. Pjeter Shala and
21 Skender Rexhametaj testified that fighters from Jabllanice provide
22 assistance to Glodjan during the fire-fight at the Haradinaj compound in
23 March 1998. I direct you to our brief at paragraphs 28 and 29.
24 Zoran Stijovic testified that Haradinaj and other fighters retreated from
25 Glodjan to shelter at Jabllanice. That's P121, paragraphs 41; P151,
1 page 3; and P31, page 2.
2 The mutual support offered by these family bases proved
3 invaluable throughout the conflict and enabled the KLA forces to fact in
4 a co-ordinated and cohesive way.
5 When Haradinaj consolidated his command over the two headquarters
6 in June 1998, he issued orders that continued to implement measures to
7 target those perceived as opponents of the KLA. He issued regulations -
8 that's P349 and P190 - directing the military police to seek out
9 collaborators, and he instructed KLA commanders and the population at
10 large to prevent any activity under pain of imprisonment that went to the
11 detriment of their war. P196.
12 The KLA, in which these accused commanded positions of influence,
13 secured control by pursuing a number of strategies.
14 Your Honour, I need to go into private session for this next
15 quotation, please.
16 JUDGE MOLOTO: May the Chamber please move into private session.
17 [Private session]
15 [Open session]
16 THE REGISTRAR: Your Honours, we're back in open session.
17 JUDGE MOLOTO: Thank you very much.
18 Yes, Mr. Rogers.
19 MR. ROGERS: The identification of collaborators, spies, and
20 those considered opponents lay at the heart of the KLA's strategy to
21 secure control of the territory they fault for. As a fledgling
22 organisation, it needed to make its mark, to be recognised and to be
23 accepted. But its strategies included creating fear and operating a
24 brutal regime of torture, cruel treatment, and murder directed at those
25 suspected as traitors and spies, and collaborators and others not
1 supporting the KLA's aims. The protected witness stated:
2 "Not joining the KLA was risky for me," and that "they wanted to
3 have people under their control."
4 The consistent witness evidence in this case shows that this
5 brutal strategy was implemented in Jabllanice and elsewhere in the
6 Dukagjin Zone. It can be seen demonstrated, for example, in the KLA
7 clashes with the FARK soldiers, when Ramush Haradinaj attacked and shot a
8 FARK soldier, and Idriz Balaj, with others, attacked and beat other FARK
9 soldiers; those event taking place on the 4th of July, 1998. It shown
10 though the attack on the Stojanovic brothers and others in Glodjan and
11 the elimination of Zenun Gashi. And for further details, we direct
12 Your Honours to paragraphs 77 to 85 of our brief. And it is seen most
13 obviously in the torture, cruel treatment and murder of the victims named
14 in the indictment at Jabllanice. Of course variously, the various
16 Contemporary KLA communiques dating from before the beginning of
17 the armed conflict and after in which the killing of collaborators were
18 announced and the operation of blacklists leave no room for uncertainty
19 as to the fate to befall those suspected of collaboration. And we direct
20 Your Honours again to our brief at paragraphs 52 to 61.
21 The fact that blacklists were operating before the formal
22 unification of Ramush Haradinaj's command over both Glodjan and
23 Jabllanice and that shared resources across the two commands were used to
24 target opponents; for example, in May 1998, Faton Mehmetaj from Glodjan
25 and Pjeter Shala from Jabllanice interrogated Rrustem Tetaj as a
1 suspected collaborator, shows that the unified ideal between the accused
2 and the joining together of resources to achieve that end demonstrates
3 their shared intent.
4 On the 4th of March, 1998, before the start of the armed
5 conflict, the KLA aim of killing those considered traitors was announced
6 in a communique which stated: "Death to enemies and traitors." Quite
7 simple. That's Jakup Krasniqi P65, P37, Annex 8, and P67.
8 This aim was restated when on the 6th of July, 1998,
9 Jakup Krasniqi, then the spokesperson of the KLA on the KLA General
10 Staff, restated that aim in no uncertain terms. He sent out a clear
11 warning to the population at large stating of collaborators, "We will
12 kill them if they continue to follow the wrong path." That's P67,
13 transcript reference 3359 to 63. This warning would have been known to
14 the accused.
15 Indeed the practice of killing opponents was so deep rooted in
16 Jabllanice and the Dukagjin area that a euphemism "take them to Drenica,"
17 meaning kill them, had been developed and was known to the KLA soldiers
18 there. Those threats were carried out in reality in Jabllanice.
19 Your Honours, I turn now to deal with the crimes.
20 Your Honours, before I start my summary, and it is a summary
21 whose details are set out fully in our brief and I don't want to restate
22 everything when Your Honours have it. But before I start, I want to make
23 it clear the Prosecution does not intend to rely on the evidence of
24 Witness 81. It invites the Chamber to ignore that evidence as unreliable
25 and treat it as though it was not part of the record. The Chamber
1 should, of course, continue to assess the remainder of the evidence
2 independently and without regard to his evidence.
3 I turn now to deal with the crimes at Jabllanice.
4 The overwhelming preponderance of the evidence in this case
5 confirms beyond any reasonable doubt that there was a prison in
6 Jabllanice between at least April 1998 and September 1998; that persons
7 suspected of being Serbian spies, collaborators, or otherwise not
8 supporting the KLA were detained there; that those persons, including
9 Witness 3, Witness 6, Jah Bushati, Skender Kuqi, Pal Krasniqi,
10 Naser Lika, Ivan Zaric, Agron Berisha, Burim Betja, and the many others
11 named in the indictment were severely beaten and tortured, and some of
12 them were killed; that Lahi Brahimaj and his family were at the centre of
13 the mistreatment and abuse; that Idriz Balaj tortured and abused those
14 detained there; and that Ramush Haradinaj supported, encouraged, and
15 otherwise contributed to those crimes.
16 Your Honours, there can be no doubt that between April and
17 September 1998, those who supported -- those who did not support the
18 ideals and aims of the KLA were tortured, mistreated, and murdered at the
19 premises in Jabllanice known variously as the headquarters, barracks, or
20 prison. The consistent evidence of the witnesses in this case
21 identifies, we submit, the same location and buildings in Jabllanice as
22 the place containing the prison.
23 Jabllanice was a secure and remote location suitable for a
24 prison. Difficult to access, Jabllanice was not overrun by Serb forces
25 until August 1998. Not May 1998 as suggested by the Haradinaj Defence at
1 paragraph 34 of their brief where they refer to two VJ combat reports of
2 the 125th Motorised Brigade dated the 20th and 22nd of May to support the
3 assertion that Serb forces overran Jabllanice in May, but neither of
4 those documents makes any reference to Jabllanice. The area of attack
5 referred to is Grabanice and villages well to the east of Jabllanice.
6 And Your Honours may remember that the attack on Grabanice was around the
7 20th of May, 1998. Interestingly, those contemporaneous VJ combat
8 reports also contain reference to the abductions of Serbs and of an
9 increase in the number of "intercepting kidnappings and attacks against
10 the civilian population" by the KLA, as the Serbs called them,
11 "terrorists," P115.
12 Your Honours, the prison location in Jabllanice was in a small
13 plot of land and consisted of only two buildings. Your Honours, we
14 should have on your display momentarily, not me, but the photograph. I
15 don't know whether Your Honours have that. No.
16 Your Honours will remember this, and it's perhaps worthwhile
17 reminding ourselves of what the premises looked like after these many
18 months in trial. There they are. Very simple. A small compound
19 containing one house with four rooms and a basement, and at the back
20 along the wall, another wreck in this photograph of a building but --
21 which you have heard evidence contained a kitchen and office. And the
22 gate by the road at the edge of the village. Not a large overwhelming
23 multibuilding facility but a small, remote, and private location.
24 It was not the kind of place, as emphasised by the Balaj and
25 Brahimaj Defence in their briefs, where it was possible to not know what
1 was going on. And Your Honours can see why that may be. Indeed, such
2 was the reputation of the prison that its existence was known to the
3 local villagers and to Serbian intelligence. And we direct yourself
4 again to page -- at paragraph 90 of our final trial brief for more
6 We can take the picture from the screen. Thank you.
7 The consistent evidence of those intercepted, kidnapped, and
8 detained in that prison exposes the intolerance and indiscriminate
9 brutality of KLA fighters towards ethnic Albanian, Roma, Gypsy, and Serb
11 Such was the intolerance of the KLA toward those it considered
12 opponents that mere suspicion was enough to see innocent civilians
13 bundled unceremoniously into the trunk of a car and transported to the
14 prison to be accused and beaten over days with sticks and fists. Even
15 those such as Pal Krasniqi, mentioned in Count 5, who had attended the
16 prison to join up and fight for the KLA cause, found the finger of
17 accusation pointing at him, resulting in detention and abuse, and in his
18 case, death.
19 Those detained were kept bound like animals, soiling themselves
20 and sleeping in their own excrement and urine, dehumanised and
22 The consistent evidence of those detained and beaten in the
23 Brahimaj prison places Lahi Brahimaj at the heart of the mistreatment.
24 He and other perpetrators were supported and encouraged by other family
25 members, including his brothers Nazmi and Naser Brahimaj and Ramush
1 Haradinaj, we say, his maternal nephew, and were assisted and encouraged
2 by Haradinaj's trusted lieutenant, Idriz Balaj.
3 Evidence of the pattern of abuse in Jabllanice stretches from the
4 spring-time of 1998 into and through the summer of 1998 until Jabllanice
5 was overrun in August 1998 by Serbian forces.
6 Sometime in the spring of 1998, Jah Bushati, a Kosovar Albanian
7 Muslim civilian, was abducted on the evidence by KLA members near to
8 Zhabel. The protected witness confirms that he saw Bushati at the
9 Jabllanice prison and that he had been severely beaten and that he was
10 suspected of being a Serbian spy. Shefqet Kabashi also confirms Jah was
11 detained and severely beaten by Lahi Brahimaj. Jah's severe injuries and
12 terrible condition were also confirmed by two other protected witnesses.
13 In May 1998, as charged in Count 1, Ivan Zric, Agron Berisha and
14 Burim Betja, three innocent young men described variously as children or
15 boys who had simply gone together on a horse and cart to mill corn, as
16 they had been doing regularly, had the random misfortune that day to come
17 across the path of KLA soldiers and were abducted, accused of being
18 spies. They were taken to Jabllanice. They were again accused of being
19 spies. They were beaten by Lahi Brahimaj, Idriz Balaj and others. They
20 were tortured, they are terrified, and they were humiliated. Idriz Balaj
21 beat all three, and sliced off the ear of one. The victims cried for
22 their mothers, urinated in their clothes, and they were, according to the
23 protected witness who observed this beating, beaten black and blue, to a
24 pulp. And then Lahi Brahimaj and Idriz Balaj ordered that they be taken
25 to Drenica, the euphemism confirmed by Shefqet Kabashi and the protected
1 witness to mean that they would be murdered. All three have never been
2 seen again and their bodies have never been recovered.
3 Again around May 1998, the victims of Count 2 disappeared between
4 Dollovo and Grabanice, ending up, the Prosecution says, in Jabllanice
5 prison from whence they disappeared and were never heard of again.
6 In June 1998, Witness 6, the victim in Count 3, a Catholic
7 Kosovar Albanian civilian, was abducted whilst travelling with his
8 family, taken to Jabllanice prison and beaten mercilessly for days. His
9 possession of a pistol and a photograph of a retired Albanian policeman
10 in uniform was enough to cause the finger of suspicion to point at him,
11 and for six weeks he was detained in Jabllanice. Lahi Brahimaj accused
12 him of being a spy and joined in with his beating, and Witness 6
13 described his beating in this way:
14 "They beat me with baseball bats, with fists. For two weeks I
15 didn't know much of myself. I didn't know where my face was, where my
16 neck was. I was all swollen up because of the beatings."
17 That's at P84, transcript 5217.
18 Whilst detained in the prison, Witness 6 also testified about the
19 mistreatment of the victims of Count 4, namely Nenad Remistar, whom he
20 was detained with and saw beaten with a baseball bat by Nazmi Brahimaj.
21 He, Remistar, has also disappeared, and his body has never been
22 recovered. And Witness 6 also spoke about a Bosnian man whose crime
23 appears to have been to have worked for the Serbian state run electricity
24 company, ElektroKosova, and also he spoke of three Montenegrins. He
25 described how all four were beaten with baseball bats, and he described
1 stabbed with knives. All three or four were taken away after a few days
2 and never seen again.
3 Around the 13th of July, 1998, Lahi Brahimaj arrested Witness 3,
4 a victim in Count 5, Kosovar Albanian Muslim. Lahi Brahimaj took him to
5 the prison in Jabllanice and there he was accused of being a Serbian
6 supporter. Witness 3 was beaten severely with baseball bats and sticks.
7 He was beaten so badly he could not stand. And Brahimaj ordered --
8 Lahi Brahimaj ordered that fellow KLA soldiers practice beating him, and
9 he was brutally beaten again with sticks and Your Honours may recall his
10 testimony relating to that.
11 At one point Lahi Brahimaj handed Witness 3 a revolver and
12 suggested that he "take this, kill yourself, because I don't want to
13 smear my hands with your blood." Witness 3, transcript 1567 to 8.
14 Whilst detained, Witness 3 also saw Skender Kuqi and
15 Pal Krasniqi, both Kosovar Albanian civilians and both victims named in
16 Count 5. He was tied with them. They, too, had been severely beaten,
17 and Witness 3 described Kuqi being beaten five or six times a day by
18 Naser Brahimaj. Witness 6 saw Kuqi swollen all over because of the
19 beatings he had received. The protected witness also saw the terrible
20 condition of Skender Kuqi and had seen him arrive in the trunk of his own
21 car as had Witness 6.
22 Your Honours, we submit that this must have been around the
23 13th of July, 1998, as Witness 3 confirmed that this was the approximate
24 start of his ordeal in transcript at 1669. And also Witness 6 had said
25 that about two weeks before he was released, and he confirmed that his
1 release date was the 25th of July, 1998, and that's in P84 at transcript
2 5255, he said that about two weeks before he was released, which would
3 take it to around the 13th of July or slightly earlier that he saw a man,
4 Kuqi, arrive in the boot of a Mercedes car. That's at P84, T5231. It's
5 confirmed by the protected witness. And he later discovered that the car
6 was in fact the victim's own car, Mercedes-Benz.
7 Shefqet Kabashi, a KLA soldier based in Jabllanice, also saw
8 Skender Kuqi detained if the prison. Lahi Brahimaj told Kabashi that
9 Kuqi was a Serbian spy working for the Serbian State Security Service.
10 The protected witness also heard Lahi Brahimaj and Nazmi Brahimaj accuse
11 Kuqi of being a Serbian collaborator. And, Your Honours, we submit it is
12 no coincidence that Skender Kuqi's name appears on a blacklist of wanted
13 persons circulated by the KLA around the 12th of July, 1998. That's
14 Exhibit D212, pages 13 to 14.
15 Kuqi and Krasniqi tried to escape with Witness 3, but they were
16 both recaptured. Witness 6 and the protected witness, as well as
17 Shefqet Kabashi, between them confirm that Kuqi and Krasniqi were
18 recaptured, returned to the prison and subjected to a merciless beating.
19 Your Honours, could we briefly, very briefly, move into private
21 JUDGE MOLOTO: May the Chamber please move into private session.
22 [Private session]
7 [Open session]
8 THE REGISTRAR: Your Honours, we're back in open session.
9 JUDGE MOLOTO: Thank you, Mr. Registrar.
10 Yes, Mr. Rogers.
11 MR. ROGERS: Your Honour, the fact that Kuqi was detained and
12 that he tried to escape is also confirmed by Rrustem Tetaj. Kuqi had
13 been so severely beaten that he later died.
14 The protected witness saw Kuqi in such a poor state - and
15 Your Honours may recall his evidence - that he believed he was dead. The
16 Defence, of course, challenge this, suggesting that Kuqi was not dead at
17 that point, and whilst the Defence seek to make much of the witness's
18 account of the state of the body of Kuqi, it is clear, we submit, on the
19 totality of the evidence that the witness was merely expressing an
20 opinion based upon what he perceived to be the appalling condition of the
21 body of this man.
22 Witness 3 managed to escape, only to be arrested again a few days
23 later by Lahi Brahimaj who forced him into the trunk of a car, and
24 Your Honours may recall his evidence that he was made to endure a mock
1 Your Honours, just returning previously to deal with
2 Pal Krasniqi, who was one of the others detained with Witness 3 and with
3 Skender Kuqi. Pal Krasniqi, around the 10th of July, 1998, had gone to
4 Jabllanice to join the KLA, but he was arrested as a Serbian spy. He was
5 detained together with Witness 3 and Kuqi in the Brahimaj prison at
6 Jabllanice. Witness 3 saw Krasniqi and Kuqi being beaten continuously
7 with baseball bats. Witness 6 described the state of the two men as
8 "horrifying." Krasniqi could not stand up and was left to soil himself
9 in the clothes that he wore.
10 Krasniqi was detained for a considerable period of time, until
11 after the 25th of July, 1998, at the very earliest, as that was the day
12 Witness 6 was released, and he recalls Krasniqi still being detained and
13 still alive at that point in the prison.
14 On the 11th of September, 1998, Pal Krasniqi's body was recovered
15 from the canal leading to the Lake Radoniq area, an area, we submit,
16 controlled by the KLA. On the available evidence, we submit, he must
17 have been executed by the KLA after he was -- sometime after he was last
18 seen alive in detention on the 25th of July, 1998.
19 Your Honours, I want to deal now with Count 6, and I need to move
20 briefly into private session.
21 JUDGE MOLOTO: May the Chamber please move into private session.
22 [Private session]
15 [Open session]
16 THE REGISTRAR: Your Honours, we're back in open session. Thank
18 JUDGE MOLOTO: Thank you, Mr. Registrar.
19 Yes, Mr. Rogers.
20 MR. ROGERS: Your Honours may feel that the critical evidence in
21 this case came from those who were mistreated and abused at the prison.
22 We submit that taken together, they provide a mutually consistent account
23 of the pattern of abuse perpetrated by those members of the KLA in
24 Jabllanice and beyond. And as to timing, whilst there may be some
25 differences, both within individual witness evidence and when compared
1 together, Your Honours can still be sure that there is a broadly
2 consistent chronology of events.
3 Your Honours, that leads me to make some remarks now relating to
4 the credibility of witnesses, and then I want to turn to make some
5 particular remarks about the protected witness.
6 Dealing firstly with some general observations, and Your Honours
7 I hope will forgive me for making these observations to Judges used to
8 dealing with cases on a regular basis, but it perhaps bears remembering.
9 Your Honours, clearly there are differences in accounts.
10 Your Honours are entitled to consider the passage of time that has
11 elapsed between 1998 and 2012, some 14 years, and how those natural
12 differences may be exacerbated when the proceedings are unfamiliar and in
13 a language that is not your own. Inevitably, time will have taken its
14 toll, but while some details may fall victim to the passage of time, the
15 witnesses still recall the main events impressed on their minds with
17 Where they are perhaps confused about dates for specific events,
18 Your Honours can look to other evidence in the record to confirm when
19 those events about which they speak must have occurred. Your Honours are
20 entitled to consider the stress and fear Kosovar Albanian witnesses may
21 have in testifying in this case.
22 Your Honours will recognise that most of the critical witnesses
23 have protective measures, those measures were in place as a result of an
24 objective assessment of their security issues and of what was required
25 for their protection. If a witness had been relocated, likewise would
1 have been an independent assessment of that necessity.
2 In relation to the protected witness in particular, Your Honours
3 will recall the manner and length of time over which he testified, and
4 you will bear in mind no doubt his demeanour. He testified over a number
5 of full days in difficult circumstances Your Honours may feel. You are
6 entitled to consider the extent to which any anxiety may have abated over
7 the days he testified in determining whether such anxiety may have
8 affected the answers given in the early part of his testimony where they
9 appear to conflict with answers given later in his testimony.
10 Your Honours will recall how he spoke about what he saw and the
11 effect that it clearly had on him, particularly in relation to his
12 account of the events relating to the three young men. He was subjected
13 to lengthy cross-examination in which he was accused of fabricating his
14 accounts and acting for monetary gain.
15 You will recall how he testified in response, and you will recall
16 a similar attack being made on Witness 3 and how he responded when it was
17 suggested he was co-operating with the Prosecution simply for gain. Both
18 those witnesses rejected those allegations.
19 And, Your Honours, I want to deal with how they dealt with that,
20 but as it was in private session, I need to go into private session.
21 JUDGE MOLOTO: May the Chamber please move into private session.
22 [Private session]
11 Pages 2766-2767 redacted. Private session.
11 [Open session]
12 THE REGISTRAR: Your Honours, we're in open session.
13 JUDGE MOLOTO: Thank you, Mr. Registrar.
14 Yes, Mr. Rogers.
15 MR. ROGERS: Your Honours, neither of these men wanted to leave
16 their homes and their families. Their hearts lie in Kosovo, the home of
17 their fathers and their forefathers. They had lived happily with their
18 extended families, as is the Albanian culture. And now they live away
19 from that, cut off from all that they had been brought up to know. So,
20 too, their wives and their children. It is said that they would trade
21 all of that in exchange for lies, to compromise themselves so utterly as
22 to make return home impossible.
23 Your Honours, the reality is that they traded their homes, their
24 families, and their livelihoods because honesty, integrity, and truth
25 were more important, more important than their own safety, more important
1 than their homes and their friends and their surroundings, a higher
2 calling to do what is right.
3 Your Honours are entitled to weigh those circumstances positively
4 when assessing the reliability of these witnesses.
5 Your Honours, I want to turn now to make some specific remarks
6 concerning the protected witness. I wish to cover five particular areas:
7 First, some issues relating to Count 1; secondly, relating to a number of
8 arrests; thirdly, relating to Skender Kuqi; fourthly, Witness 6; and then
9 Witness 3 and Shefqet Kabashi. When I've concluded that, I will move on
10 to make some general remarks about the use of unadmitted documents and
11 evidence and conclude this particular topic with some comments about the
12 assessment of evidence generally.
13 Your Honours, the Defence attack the protected witness as
14 unreliable, inconsistent, contradictory, and lacking support. But in
15 truth, there is a great deal of consistency. It --
16 MR. EMMERSON: I do apologise, but if -- if Mr. Rogers is going
17 to make generalised submissions with [indiscernible] reference to the
18 Defence, he ought to distinguish between which Defence he is referring to
19 because he's not summarising submissions made by Mr. Haradinaj's team.
20 MR. ROGERS: I make it broadly. He is attacked, I put it that
21 way, as unreliable, inconsistent, contradictory and lacking support. I'm
22 not sure whether Mr. Emmerson is suggesting he's not unreliable,
23 inconsistent, or contradictory. But in truth, there is a great deal of
24 consistency in his evidence and much support from the other witnesses,
25 especially when considering the 14 years that have elapsed since they all
1 witnessed these events.
2 Your Honours, I'll turn now to deal with the five specific issues
3 I mentioned. Firstly, in relation to Count 1 -- I'm just going to make
4 three points and then we'll need to go into private session. In relation
5 to Count 1, we submit, there can be no doubt from the evidence that the
6 three young men in Count 1, aged 22, 15 and 16, left the village of Dollc
7 together on a horse-drawn cart. There can be no doubt that they went to
8 Grabanice to mill corn and that they never returned.
9 Your Honours, may we now turn into private session. And I will
10 be a little while now in private session.
11 JUDGE MOLOTO: May the Chamber please move into private session.
12 [Private session]
11 Pages 2771-2779 redacted. Private session.
6 [Open session]
7 MR. GUY-SMITH: Excuse me. With regard to the last --
8 THE REGISTRAR: Your Honours, we're in open session. Thank you.
9 MR. GUY-SMITH: Excuse me. With regard to the last remark made
10 by Mr. Rogers, that's a clear example of burden shifting which is an
11 impermissible argument.
12 JUDGE MOLOTO: Is this a convenient time?
13 MR. ROGERS: Your Honours, yes, it is a convenient time.
14 JUDGE MOLOTO: We'll take a break and come back at 4.00. Court
16 --- Recess taken at 3.34 p.m.
17 --- On resuming at 4.01 p.m.
18 JUDGE MOLOTO: Yes, Mr. Rogers.
19 MR. ROGERS: Thank you, Your Honour.
20 Your Honour, could we just move briefly into private session.
21 JUDGE MOLOTO: May the Chamber please move into private session.
22 [Private session]
11 Page 2781 redacted. Private session.
1 [Open session]
2 THE REGISTRAR: Your Honours, we are in open session.
3 JUDGE MOLOTO: Thank you so much.
4 Yes, Mr. Rogers.
5 MR. ROGERS: Your Honours, I was dealing with certain credibility
6 issues relating to the protected witness, and, one, as I draw to the end
7 of this part of my submissions, relates to Shefqet Kabashi where it is
8 suggested by some of the Defence, and we say I am plausibly and without
9 any foundation and without any suggestion to either the protective
10 witness or Shefqet Kabashi that they, too, had somehow colluded, and we
11 submit that that is a suggestion that should be rejected out of hand.
12 Your Honours, in our submission, whenever the Defence see
13 consistency, they see collusion, and Your Honours may, however, see
14 honesty, reliability, and plausibility.
15 Your Honours, may I turn to just deal with an issue relating to
16 unadmitted documents and those that have been admitted for limited
18 The Defence, some of them, refer to evidence that is not admitted
19 as evidence of the truth of its contents in an attempt to impeach the
20 protected witness. Your Honours, our submission, these are collateral
21 issues to which the witness's answer is final. Merely putting a document
22 to a witness does nothing more than give the witness an opportunity to
23 comment upon it. It's the witness's answer that is final. The document
24 itself has no evidential value and no weight can be attached to it unless
25 it is adopted by the witness.
1 Reference is made to the out-of-court statements of Fadil Fazliu
2 and Nazir Fazliu to documents related to an employment dispute and
3 various UNMIK records of which were admitted only to allow the Chamber to
4 follow the record, not as evidence of the truth of their contents. These
5 documents have no intrinsic value unless evidence either they've been
6 adopted by the witness or evidence has been called to establish the truth
7 of their contents insofar as the witness has not adopted them. No such
8 evidence has been adduced.
9 Your Honours, in our submission, another example of impermissible
10 use of out-of-court statements and unadmitted documents is where
11 Mr. Haradinaj in his brief refers to documents not admitted into the
12 record to impugn the statement of a witness, paragraph 185, footnote 474.
13 He also refers to the judgement in the first trial to seek to establish
14 issues relevant to this trial, such as whether there was a policy in the
15 KLA to target collaborators. That's paragraph 175, footnote 446.
16 We say that these references to out-of-court statements,
17 unadmitted documents, and prior findings of a different Chamber where
18 those issues are before you to determine should be ignored.
19 Finally, in concluding my remarks relating to the assessment of
20 evidence in general, we respectfully remind, very respectfully remind
21 Your Honours that it is not every disputed fact that needs to be
22 resolved, only those that are material to the determination of the
23 accounts arising on the indictment before you. Your Honours will of
24 course bring all of your collective experience of the world into the
25 retiring room when assessing the evidence of these witnesses and in
1 making your findings on whether the Prosecution has discharged the heavy
2 burden upon it.
3 Your Honours, I turn now to my remarks concerning the
4 responsibility of the accused under joint criminal enterprise.
5 Your Honours, dealing first with Lahi Brahimaj. In our
6 submission, on the totality of the evidence, he was at the centre of the
7 organisation of KLA activities based in and from Jabllanice. Known as
8 Commander Maxhup, he was the commander of the oldest KLA headquarters in
9 the Dukagjin area, based as it was at his family seat in Jabllanice.
10 Together with other family members, including Nazmi and Naser Brahimaj,
11 Lahi Brahimaj administered his own particular brand of justice.
12 Lahi Brahimaj, we submit, ran the prison as a place of
13 mistreatment and abuse. There, he routinely interrogated prisoners,
14 accusing them of being traitors and spies, and indulged himself in their
15 brutal beatings and terrorisation with others using sticks and other
16 objects, fists and boots. It was he who ordered and/or instigated the
17 execution of the three young men. It was he who encouraged others to
18 indulge in the torture and mistreatment and murder of detainees at his
19 prison, both directly and by setting an example for them to follow, and
20 by failing to intervene to stop the brutality. For further details of
21 Brahimaj's contributions, we direct you to paragraphs 235 to 239 of our
23 Witness 3, Witness 6, and Shefqet Kabashi and the protected
24 witness all confirm Lahi Brahimaj's near constant presence in Jabllanice
25 and involvement in the many beatings of prisoners. Witness 6 stated that
1 he was detained for six weeks between about mid-June and the 25th of
2 July, 1998, and said, "Two days would not pass without seeing
3 Lahi Brahimaj there." That's P84, transcript 5218. Witness 75 confirms
4 Lahi Brahimaj's regular presence at the detection facility, and in the
5 face of the numerous occasions when eye-witnesses saw him at Jabllanice
6 during the indictment period, Your Honours can safely and properly reject
7 any alibi defence as continues to be advanced by him. And for further
8 details, we refer you to paragraph 23 of our brief.
9 Idriz Balaj was the commander of the feared Black Eagles. He was
10 also a regular visitor to Jabllanice. Witness 75, Shefqet Kabashi, and
11 the protected witness collectively confirm his presence on many occasions
12 during the indictment period. He, together with Lahi Brahimaj, other
13 members of the Brahimaj and other KLA soldiers savagely beat and tortured
14 Ivan Zaric, Agron Berisha and Burim Betja and ordered their murder. As a
15 senior commander, his behaviour and failure to prevent such brutal crimes
16 acted as an encouragement and support for others to commit crime.
17 Many witnesses including Stijovic, Witness 77 and Shefqet Kabashi
18 and others - and we direct you for detail to our brief at paragraphs 16
19 to 19 and 80 to 84 - confirm Balaj's reputation for excessive violence.
20 Witness 77 and Witness 29, FARK soldiers, could testify first-hand about
21 his extreme violence. (redacted)
25 (redacted). Fellow Jabllanice
1 KLA soldier Kabashi also confirmed Balaj participated in the beating of
2 detainees at the Jabllanice headquarters, as he put it, whenever he
4 Your Honours can safely reject the suggestion by Balaj that he
5 could not have been at the prison. The fact he may also have been
6 engaged in combat operations does not mean he could not have been present
7 on occasions at the Jabllanice camp. The evidence of Shefqet Kabashi,
8 the protected witness, and Witness 75 all confirm that Balaj was seen
9 there. Where Ylber Haskaj suggests otherwise, he has a clear motive to
10 give Balaj a favourable account given his close relationship to Balaj,
11 and that relationship is identified at P40, paragraph 29, where he
12 describes the respect he had for Balaj during the war, that he still has
13 a lot of respect for him, that he visited him regularly whenever he had
14 the chance, and kept in touch with him, As he calls me, he said, from
15 The Hague every so often.
16 Your Honours, for further details as to Mr. Balaj's
17 contributions, we refer you to paragraphs 229 to 234 of our brief.
18 Haradinaj and Balaj worked closely together, were seen on many
19 occasions as demonstrated by the FARK related incident, the confrontation
20 between Ramush Haradinaj, Idriz Balaj and FARK soldiers at the Prapaqan
21 Barracks. And we direct you to our brief at paragraphs 80 to 84.
22 Together with Balaj's presence in Jabllanice on the 23rd, 24th of May
23 with Ramush Haradinaj when Lahi Brahimaj spoke to the Grabanice
24 villagers. In addition, it was Balaj -- forgive me. In addition, it was
25 Balaj who transferred to Glodjan before the Black Eagles were formed in
1 April 1998, and indeed they were together seen by many witnesses
2 throughout the indictment period.
3 May we briefly go into private session.
4 JUDGE MOLOTO: May the Chamber please move into private session.
5 [Private session]
17 [Open session]
18 THE REGISTRAR: Your Honours, we're in open session.
19 JUDGE MOLOTO: Thank you very much.
20 Yes, Mr. Rogers.
21 MR. ROGERS: Your Honour, Rrustem Tetaj confirmed that Balaj was
22 present when he, Tetaj, first met Ramush Haradinaj in April 1998 -
23 that's P76, T3620 - and when the regional staff in Glodjan was formed
24 towards the end of May 1998.
25 All of this is consistent, the observations, in our submissions,
1 of the protected witness and others of them together at Jabllanice.
2 Your Honours, it's clear that throughout Ramush Haradinaj
3 commanded a respect among his peers and amongst the population that
4 carried with it great authority. For it is only from respect that
5 authority flows. Strict military hierarchies were not in place at this
6 time and thus it was through defence and popular respect that authority
8 This is all that is required to establish his authority, a
9 recognition that the person giving instructions has sufficient gravamen
10 to command respect that the instructions will be carried out. At the
11 very least, it is a position of significant influence from which
12 encouragement or discouragement for a particular course of conduct can be
14 Formal command is not a necessary ingredient to establish a
15 significant contribution to crimes committed with a shared intent. All
16 that is required is a shared intent, a plurality of persons, and a
17 significant contribution. Your Honour, those contributions concerning
18 Ramush Haradinaj are set out in our brief at paragraphs 205 to 237.
19 Your Honours, may we go into private session briefly.
20 JUDGE MOLOTO: May the Chamber please move into private session.
21 [Private session]
15 [Open session]
16 THE REGISTRAR: Your Honours, we're in open session.
17 JUDGE MOLOTO: Thank you, Mr. Registrar. Yes, Mr. Rogers.
18 MR. ROGERS: Your Honours, Ramush Haradinaj, the nephew of
19 Lahi Brahimaj and a key member along with Lahi Brahimaj of the fledgling
20 KLA groups in the Dukagjin area, was a highly respected leader based in
21 Glodjan. This respect had crystallised at the time his family compound
22 was attacked in Glodjan in March 1998, where after an intense fire-fight,
23 he managed to stand against significant Serbian pressure.
24 Skender Rexhametaj put it this way in transcript 1097, he said:
25 "Based on the resistance that he put up with his family, the
1 incident had a lot of echo in the whole country, and Ramush, as a result
2 of that, was widely respected for this resistance that he put up in
3 protecting his family and his village. And with the passage of time in
4 fact, he became famous. Everyone, most of the people knew him and had a
5 lot of respect for him because as I said, he put up that resistance and
6 protected his family and his village."
7 He went on:
8 "As so, on the basis of what I just said, people respected him,
9 and if you are respected, you enjoy authority. I don't mean here legal
10 authority, but the authority of a person who was successful in protecting
11 his family and his village and his people. This is my line of thinking."
12 His reputation throughout the area was well established by
13 April/May 1998. Witness 6 -- Witness 76 described him as the
14 Lord of Dukagjin. Others described the awe with which he was held in
15 such glowing terms as "Ramush on earth, God in heaven."
16 The esteem with which he was held was clear for all to see. The
17 military-trained commanders of the subzones that formed in May 1998
18 elected Ramush Haradinaj as their leader. While they were also willing
19 to adopt Mr. Emmerson's prompting that the structures were horizontal and
20 more of a blueprint, the reality is that these seasoned officers
21 determined that Haradinaj should lead, a man with considerably less
22 military training and experience than they had. In our submission, this
23 reflects the deep respect shown by both the civilian population and the
24 military leadership towards Ramush Haradinaj.
25 Your Honours, in our submission Ramush Haradinaj shared the
1 intent with Lahi Brahimaj and Idriz Balaj to cruelly treat, torture and
2 murder those opposed to the KLA.
3 The three accused worked together with ear local commanders to
4 free Kosovo of what the KLA called the occupier. Inevitably, that
5 involved eliminating opponents and those supporting them with the
6 ultimate aim of securing territory and the control of territory of
7 Kosovo. In this area, this included the area identified in the
8 indictment as the Dukagjin Zone. These aims were to be implemented, the
9 Prosecution says, at least in part through crime.
10 That Ramush Haradinaj intended the use of criminal means to
11 achieve these aims is clear from his support and encouragement of the
12 actions of his relatives and others in Jabllanice from the start and
13 furthered by his own actions when consolidating command of the entire
14 area in June 1998. One of his first actions towards the end of June 1998
15 was to continue this strategy by issuing regulations containing
16 instructions to the military police, the only so-called law enforcement
17 arm of the KLA, an organisation acting outside of any recognisable legal
18 structure. An organisation Ramush Haradinaj ordered was to be manned by
19 those of pure national commitment. Your Honours will see the full
20 details in P349 and P190. It was those purists who were instructed to
21 "take measures against all those working under the Kosovo Liberation --
22 against the Kosovo Liberation Army and investigate and uncover with
23 persuasive facts all those persons who collaborate in any way with the
24 enemy." That's a quote.
25 Your Honours will recall that the MP was in existence before
1 those orders were issued in June, and we direct you to paragraph 62 to 68
2 of our brief.
3 In our submission, it is clear that Ramush Haradinaj continued
4 the use of the MP to root out opposition and that this was part of an
5 already established aim. Rrustem Tetaj explained at P77, paragraph 29,
6 that Faton Mehmetaj, who worked closely with Ramush Haradinaj during the
7 indictment period and in May and June 1998 was based in the Glodjan
8 headquarters. He had circulated lists, blacklists, among the village
9 guards. In May 1998, Tetaj had been arrested and interrogated by
10 Mehmetaj and Pjeter Shala after his inclusion on such a list. Shala had
11 been appointed to the MP by Lahi Brahimaj from the Jabllanice
13 This is another example of the close co-operation between the KLA
14 based in Glodjan and Jabllanice to pursue and target suspected
15 collaborators using Mehmetaj as part of the Glodjan Regional Staff under
16 Ramush Haradinaj and Pjeter Shala from Jabllanice under Brahimaj.
17 The clear aim to eliminate opposition was shared by
18 Ramush Haradinaj, Lahi Brahimaj and Idriz Balaj throughout the indictment
19 period. Haradinaj's instructions to the police continuing the targeting
20 of suspected opponents, as did Ramush Haradinaj's instructions issues on
21 the 24th of June, 1998, to KLA commanders and population to "prevent any
22 activities that go to the detriment of our war" under pain of
23 imprisonment for operation to the order. That's P196. The fact that
24 blacklist were operating before the formal unification of
25 Ramush Haradinaj's command over both Glodjan and Jabllanice headquarters
1 and that shared resources across the two commands were used to target
2 opponents shows the unified ideal between the three accused and their
3 shared intent.
4 The activities which continued at Jabllanice throughout July 1998
5 and attested to by Witness 3, 6 and the protected witness, amongst
6 others, show what fate awaited those considered to be working against the
8 Ramush Haradinaj was a regular visitor to Jabllanice throughout
9 the indictment period. Indeed from at least the 23rd of June, 1998,
10 Haradinaj had both de facto and de jure command of the Jabllanice
11 facility. Lahi Brahimaj formally became his deputy. The evidence from
12 the protected witness confirms that Haradinaj even before his formal
13 appointment in June as overall commander was in attendance at Jabllanice.
14 Due to the smallness of this place it would have been impossible to not
15 to know what was going on there. Throughout the indictment period, there
16 were many persons detained and mistreated.
17 We know from the evidence of the protected witness that
18 Ramush Haradinaj was present in Jabllanice on or about the 23rd or 24th
19 of May, after the attack on Grabanice and when 20 or 30 Grabanice
20 villagers were also present. At this time, Lahi Brahimaj, that's during
21 that meeting, Lahi Brahimaj was threatening those villagers that they
22 needed to fight or that there would be nowhere for them in Kosovo. And,
23 Your Honours, on this occasion, according to the protected witness,
24 Ramush Haradinaj was introduced to the assembled villagers by name as
25 Ramush Haradinaj and that he was the commander of the Dukagjin area.
1 Balaj was also there with Haradinaj.
2 Your Honours, in our submission, the only reason he was there and
3 was introduced to villagers from a village north of Jabllanice and
4 further geographically away from Glodjan must have been to show the unity
5 of the KLA, to display Haradinaj's important position of command and
6 authority in the area, and to demonstrate visible support for his uncle
7 and fellow KLA fighter, Lahi Brahimaj. This is consistent with his
8 important position of authority at that time.
9 The fact that he had been appointed as commander of the
10 Dukagjin Regional Staff at this time is supported by the evidence of
11 Rrustem Tetaj, a subzone commander who was present at a meeting about the
12 23rd of May, 1998, when the subzones were formed and Haradinaj was
13 appointed as commander of the Glodjan Regional Staff which covered the
14 area of the Dukagjin plain.
15 Your Honours, I'm not suggesting that Jabllanice itself was part
16 of the Dukagjin Regional Staff at that time. That came later. But the
17 fact that he had been appointed as the commander of the Dukagjin Regional
18 Staff at around the 23rd of May, 1998, is a fact.
19 Your Honours, in our submission, it's a matter for Your Honours,
20 of course, in due course to determine whether this is the case, but in
21 our submission on the 23rd or 24th of May, the victims of count 1 must
22 also have been present in Jabllanice at the prison on the occasion of the
23 visit by Ramush Haradinaj.
24 We know from the protected witness that those victims were seen
25 in the Jabllanice prison a little time after that meeting on the 23rd and
1 24th May and when - this is after his arrest from Bucan -- and were taken
2 from the basement of the prison where they were detained. Given the
3 smallness of the location, the closeness of the family relationships, the
4 close co-operation between Haradinaj and Lahi Brahimaj and the united
5 aims of the accused to eliminate perceived opposition from the area, it
6 is our submission that it is clear Ramush Haradinaj must have known that
7 the victims were detained there.
8 Given his important position of respect and authority, his
9 nonintervention shows his support for the mistreatment and provided
10 encouragement for the perpetrators.
11 In his final trial brief, Ramush Haradinaj addresses the
12 occasions the protected witness saw Haradinaj. Your Honours will recall
13 that the witness clarified he had seen Haradinaj several times, stating
14 he was commander there. He confirmed the first time when he saw
15 Haradinaj with the other villagers present was in May, and we submit this
16 is the 23rd/24th May incident when Brahimaj was also introduce -- when
17 Brahimaj introduced Haradinaj as the Dukagjin commander.
18 In our submission, it is clear to this witness and no doubt to
19 the many others gathered there, including the Brahimaj family KLA
20 members, that Haradinaj occupied a sufficient -- significant position of
21 authority within the KLA and in the local area, especially given the
22 strong familial link to Jabllanice and Lahi Brahimaj in particular. The
23 continuation of crimes at Jabllanice when Haradinaj was the commander
24 show that he continued to support the elimination of opposition through
25 unlawful means. The direct role of Lahi Brahimaj and Idriz Balaj in
1 those crimes demonstrates their commitments to achieve the common
2 objective. The clear encouragement of those crimes by Haradinaj is
3 shown, inter alia, by his adoption of a policy to target suspected
4 opponents and his failure to stop or punish anyone for their roles in
5 crime especially in relation to the detention and mistreatment of the
6 victims named in the indictment, including Skender Kuqi.
7 For the moment, let's pause to think at the time that he saw
8 Skender Kuqi, and it is accepted that he did and saw him at the prison
9 facility. Others, such as the protected witness, Witness 6, and
10 Pal Krasniqi were also detained there. He cannot have failed to be aware
11 of them, especially as he had attended to deal with Kuqi, yet nothing was
12 done in relation to the remaining detainees. No one was punished and
13 their detention continued. Your Honours, we refer you again to our brief
14 at paragraph 205 to 228 for full details of the contributions we allege
15 against Mr. Haradinaj.
16 Your Honours, we, at this stage, refer you also to our brief for
17 details related to other modes of liability set out against each of the
18 accused as they are set out in full at paragraphs 248 to 266.
19 Finally, briefly, turning to sentence.
20 The Prosecution submits that for the role each accused played in
21 the commission of these crimes and having regard to their gravity, the
22 least sentence that should be imposed is one of 20 years' imprisonment
23 for each accused. In relation to Lahi Brahimaj, Your Honours will no
24 doubt adjust that sentence to give appropriate credit for such time as
25 Your Honours think right to reflect the time that he has already served
1 for the crimes for which he has already been convicted arising from his
2 conduct at Jabllanice.
3 Your Honours, those are our submissions.
4 JUDGE MOLOTO: Thank you very much, Mr. Rogers.
5 Mr. Emmerson.
6 [Defence Closing Statement]
7 MR. EMMERSON: Your Honours, this is the first time that this
8 Tribunal or any other international criminal Tribunal has held a full
9 retrial on the totality of evidence that the Prosecution wished to call
10 after an accused person had been finally acquitted on evidence called at
11 an original trial, and it is a number of other respects a unique case as
12 well. So before embarking on the detail of my submissions, I want, if I
13 may, just to say a little about how we got to the point at which we now
15 It's more than seven years now since Ramush Haradinaj was first
16 indicted, and at the time, as Your Honours know, he was a serving
17 prime minister in the provisional institutions of self-government
18 established under the auspices of UNMIK, the United Nations Mission in
19 Kosovo. He was widely regarded as an excellent political leader, one who
20 could unite Kosovo, secure the support of the international community and
21 critically one that was committed to the protection of the rights of
22 those pockets of Serb national minorities remaining inside Kosovo's
23 boundaries after the war.
24 As such, he represented a potent political threat to Serbia,
25 which was at that time uncompromisingly committed to preventing Kosovo
1 from achieving secession and independence, and uncompromisingly committed
2 to seeking the decapitation of its political leadership.
3 It is widely and publicly known that high-ranking Serbian
4 officials made forceful representations to the Office of the Prosecutor
5 seeking to have Mr. Haradinaj prosecuted. The crimes alleged against him
6 in the original indictment were based upon a dossier of evidence
7 collected by the Serbian intelligence service, the RDB itself, an
8 organisation that was known to engage, as we shall show in the course of
9 the closing submissions, in the basest methods of evidence manipulation.
10 Remarkable, as it may seem to those inside and particularly outside this
11 courtroom, the case against Ramush Haradinaj, a distinguished
12 prime minister and public servant, as it was advanced by the
13 Office of the Prosecutor at the original trial and as it has been
14 advanced here before this Trial Chamber, was and is based primarily on an
15 investigation conducted by the Serbian intelligence services themselves.
16 It is now a matter of public record that lawyers appointed to
17 advise Madam Del Ponte told her from the outset that there was no
18 sustainable case against Mr. Haradinaj and advised her not to indict him.
19 She has said so herself in her published memoirs. She had to change her
20 legal team more than once before she could find a team that was prepared
21 to prosecute him, but in the end, she did. She came up with a team that
22 was prepared to put up for examination the case that was said to exist
23 against Ramush Haradinaj. But when the case came up for examination in
24 the first trial, it predictably fell to pieces. I say predictably
25 because it had, in fact, had been predicted by the two teams of lawyers
1 that she originally instructed to consider the case against him.
2 Now, Your Honours may come to the conclusion having heard the
3 evidence in this case and taking account of those passages of the
4 evidence from the previous trial that have been admitted that some of the
5 crimes alleged on this indictment, at least, were indeed committed. You
6 may conclude that some of the crimes were committed at Jabllanice. But
7 the issue as far as Ramush Haradinaj is concerned, and the only issue, is
8 whether he participated, authorised, or condoned those crimes or was
9 party to a joint criminal enterprise that they be committed.
10 There is no suggestion nor could there be on the evidence that
11 Ramush Haradinaj ever had day-to-day operational control over Jabllanice.
12 There is no suggestion nor could there be on the evidence that
13 Ramush Haradinaj ever committed any unlawful act at Jabllanice. There is
14 no suggestion nor could there be on the evidence that he was even ever
15 present at Jabllanice whilst any of the crimes alleged on this indictment
16 or any other crimes took place.
17 Against that background, I'm going to make the bold submission
18 that no one who's been present during the course of this partial retrial
19 can honestly be in any real doubt about what the right verdict is in the
20 case of Mr. Haradinaj. It's been clear to everyone from the very start
21 that the Prosecution case against Mr. Haradinaj depended upon two key
22 witnesses. There were two central pillars to the Prosecution case:
23 Witness 81 and the witness that I shall describe as Witness X; namely,
24 the witness described by Mr. Rogers as the protected witness. But since
25 both were, in fact, protected, the two core witnesses right at the heart
1 of the Prosecution's case were Witness 81 and Witness X. Mr. Rogers
2 himself repeatedly described them as crucial witnesses, the crucial
3 witnesses, in the case against Ramush Haradinaj. From the very beginning
4 they were critical. Without them, the case could not succeed.
5 Both of them, of course, have the benefit of protective measures,
6 so both were free to give evidence without fear, and both of them were
7 relied upon by the Prosecution fulsomely and unequivocally from the
8 outset in support of an allegation specified by the Prosecution as
9 central to its case that Mr. Haradinaj was both present at and directly
10 participating in the dreadful crimes that form the basis of Count 1 on
11 the indictment, the disfigurement and murder of three teenage boys.
12 Critical to the Prosecution's case.
13 Your Honours will recall that when I opened the case to you, I
14 predicted that there was simply no way that this evidence would stand up.
15 No way. Because, in the end, the man who sits behind me in this room is
16 an honourable man, and an honourable man would not stand there and do
17 nothing whilst crimes of that disgusting nature were carried out before
18 him. So I suggested to you that there was no way the evidence would
19 stand up and so it proved to be.
20 Witness 81 came willingly to The Hague. Indeed, it looks very
21 much as though he was pushed here by the Serbian authorities with great
22 enthusiasm. Yet another product of a Prosecution decision to rely on the
23 Serbian intelligence service to prosecute proceedings against a
24 prime minister democratically elected in an emerging independent Kosovo.
25 His evidence when it came was so appallingly dishonest, so
1 demonstrably fabricated in every detail that he spent five days twisting
2 and turning like a snake on a stick. It was a painfully compelling
3 performance for all those who saw it both inside and outside the
4 courtroom. It was gripping to watching. A witness so dripping with
5 lies, so slippery with the slime of dishonesty that one felt the needed
6 to wash one's hands during a break in his evidence. It makes the blood
7 run cold to think that a witness who is willing to lie so easily, so
8 repeatedly and with such elaborate detail could be relied upon by a
9 responsible prosecutor as the cornerstone of its case.
10 No surprise then that Mr. Rogers took, in the end, the position
11 that he did today. This then was the Prosecution's first star witness
12 against Mr. Haradinaj, half the case against him. And before I start,
13 said Mr. Rogers, I want to make it clear, as though it were simply one of
14 a pack of 52 cards, that I don't intend to rely on the evidence of
15 Witness 81. I invite the Chamber to ignore the evidence as unreliable
16 and treat it as though it wasn't part of the record.
17 But it was part of the record, Mr. Rogers, because you chose to
18 call it. You chose to call a witness to base this prosecution on and
19 hold a man in custody for whose evidence was so obviously false that
20 you've been driven to abandon any reliance at all upon him despite the
21 enormity and the gravity of the claims that he made.
22 MR. ROGERS: Your Honours, it's entirely inappropriate to make
23 such personal and direct remarks to counsel in the course of closing
24 submissions or at all, and I would ask Mr. Emmerson to stop it.
25 MR. EMMERSON: I'm sure Mr. Rogers would prefer it wasn't put in
1 the way that it was, but he needs to take responsibility for a
2 prosecutorial decision to rely on a witness who anyone could have seen,
3 having proofed him as Mr. Rogers personally did, was wholly unreliable.
4 How long did it take Your Honours to realise that this witness was
5 entirely unfamiliar with the basic precepts of the truth. And yet
6 Mr. Rogers had spent days with him, and he made the decision to put him
7 up as the - in his own words - crucial witness upon whom his case relied.
8 So I'm sorry if he finds it difficult to hear those words, but they
9 are -- it is his responsibility, and I do publicly and openly condemn him
10 for it. It is not simply possible at the end of a case, casually in that
11 way, to say having based a case in the way that he did, on the
12 truthfulness of a witness he spent time with to say, Well, I'm so sorry.
13 This is a witness that we are simply going to cast aside and get on with
14 the rest of the evidence in the case. Of course Your Honours need to
15 look at the rest of the evidence, so let's do that for a moment.
16 Witness X, the second star witness that Mr. Rogers intended to
17 call, intended to call to give evidence that Mr. Haradinaj stood by and
18 ordered the dreadful crimes in Count 1. He did initially not want to
19 come to The Hague to give evidence in this trial, as he had not wanted to
20 come to The Hague to give evidence --
21 MR. ROGERS: Your Honours, could we go into private session? I'm
22 sorry to interrupt.
23 JUDGE MOLOTO: May the Chamber please move into private session.
24 [Private session]
11 Pages 2803-2806 redacted. Private session.
23 [Open session]
24 THE REGISTRAR: Your Honours, we're in open session.
25 JUDGE MOLOTO: Thank you so much, Mr. Registrar.
1 Yes, Mr. Emmerson.
2 MR. EMMERSON: Moving then to the second star witness that
3 Mr. Rogers identified as crucial to his case and as essential to the core
4 allegation that Mr. Haradinaj was present at and participated in the
5 crimes alleged under Count 1.
6 As Your Honours know, the witness we are calling Witness X did
7 not want to come to The Hague to give evidence. And so after making
8 various attempts to secure his evidence, the Trial Chamber and all of the
9 lawyers in the case travelled to a remote location in order to hear his
10 testimony. After some hesitation, he gave his account. He described the
11 crimes that were the subject of Count 1 and Count 6 on the indictment in
12 some detail, and he said that Ramush Haradinaj had nothing to do with
13 either of them. He stressed repeatedly that whatever the Prosecution may
14 have recorded in various inconsistent statements that he had signed,
15 statements which were not and never have been admitted in evidence, the
16 account that he was giving on oath to the Trial Chamber was the truth.
17 He was clearly not shy about making allegations about the
18 commission of crimes at Jabllanice or about naming senior members of the
19 Kosovo Liberation Army. He made serious allegations on oath against
20 Mr. Balaj, Mr. Brahimaj, and others whom he named. It is not for me to
21 answer or comment upon those allegations. That is for others. But as
22 far as Mr. Haradinaj was concerned, his evidence was clear and
23 consistent, and Mr. Rogers is driven to and does accept it. He never,
24 that is, Witness X, never saw Mr. Haradinaj present on any of the
25 occasions at Jabllanice when he saw crimes being committed, and he never
1 even claimed to have seen Mr. Haradinaj enter the compound in which it is
2 alleged that those crimes occurred, having seen him only in a named
3 building in the centre of Jabllanice.
4 He once caught a glimpse on around the 23rd, 24th of May of
5 Mr. Haradinaj, he said, at the KLA HQ in Jabllanice. But according to
6 his evidence, if we fix that at around the end of May, it is clear that
7 he was -- and he told Your Honours, he had no direct contact with
8 Mr. Haradinaj. Mr. Haradinaj was so surrounded by people that he could
9 barely see him, that he had no knowledge of what Mr. Haradinaj was doing
10 there, but not that he was introduced as the commander as Mr. Rogers
11 suggested, for he wasn't the commander of Jabllanice or on any view. And
12 indeed Jabllanice wasn't incorporated into a joint command, but, rather,
13 that Lahi Brahimaj told Witness X that the man in the centre of a crowd
14 was Ramush Haradinaj, and that is it in relation to the first occasion.
15 As to the second occasion, he says he once saw Mr. Haradinaj
16 remonstrating with Lahi Brahimaj about the ill-treatment of Skender Kuqi.
17 I'll come back to this in more detail later on, but Witness X could see
18 after Mr. Kuqi's injuries had been inflicted that Mr. Haradinaj arrived,
19 that there was a problem between Mr. Haradinaj and Mr. Brahimaj, and that
20 he said he saw Mr. Haradinaj was very concerned about what had happened
21 to Skender Kuqi, and he said he saw that Mr. Haradinaj was pressing
22 Lahi Brahimaj to provide an explanation, saying to him, "Why did you do
23 that to him?"
24 Well, if that's true and the Prosecution advances this witness
25 unqualified in their terms as a witness of reliability and truth, and
1 what's more, in this respect, in that important detail of intervening to
2 remonstrate about the injuries inflicted to Skender Kuqi, he is
3 corroborated in detail by entirely independent evidence from another
4 witness, Rustem Tetaj, who was also present and whose testimony I'll come
5 to later on, so if it is true then it is hardly, Your Honours may think,
6 the response of a commander who was party to a joint criminal enterprise
7 to mistreat and kill detainees at Jabllanice. It wouldn't even sustain
8 an allegation of command responsibility for it would involve an
9 intervention of precisely the kind that a commander in a loosely
10 connected army of this kind would be expected to make. So, in fact, the
11 evidence proves quite the reverse of the Prosecution's theory.
12 So that then is the evidence and the only evidence in relation to
13 Mr. Haradinaj given by the Prosecution's second star witness, the two
14 central pillars of their case. Insofar as it's relied upon to prove a
15 case against Mr. Haradinaj have simply fallen away as a result of their
16 formal decision to abandon Witness 81, coupled with the fact that
17 Witness X eventually came and told the truth about Ramush Haradinaj, the
18 Prosecution's primary case theory has entirely collapsed. You didn't
19 perhaps pick up a hint of that in Mr. Rogers' closing submission. He
20 didn't apologise or indicate the entirety of the way he put his case had
21 fallen away. He now wished to fall back upon an entirely alternative,
22 speculative joint criminal enterprise case theory based on stitching
23 together a lot of inconsistent evidence from Witness X about dates and
24 tried to persuade Your Honours to draw inferences from that.
25 The fact is Prosecution have been driven to abandon the key
1 allegation that was the cornerstone of their case against Mr. Haradinaj,
2 that he was present at and participating in the dreadful crimes that form
3 the basis of Count 1. And as we all know, had he been, that would have
4 provided ample evidence for convicting him on a joint criminal enterprise
5 basis. For anyone who was prepared as a commander to stand by and watch
6 that happening would necessarily be condoning that conduct. But there is
7 not a shred of evidence that that is what happened, and indeed the
8 evidence called by the Prosecution proves quite the reverse.
9 So despite Mr. Rogers's attempt to fall back on a nebulous and
10 ill defined allegation that Mr. Haradinaj participated in some
11 unspecified way in a joint criminal enterprise to commit crimes when he
12 wasn't even there and there is no evidence that he knew about them with
13 the exception of Skender Kuqi when he intervenes, Mr. Rogers has --
14 despite that, Mr. Rogers has, in effect, conceded in his written brief
15 that the evidence is consistent with Mr. Haradinaj's acquittal.
16 At paragraphs 202 and 243 of the Prosecution closing brief, they
17 put an alternative thesis, an alternative analysis of their own case and
18 the evidence upon which they rely which is the proposition that the
19 evidence demonstrates, say the Prosecution, beyond reasonable doubt that
20 Mr. Brahimaj and Mr. Balaj participated in a joint criminal enterprise
21 with other members of the Brahimaj family and other KLA soldiers to
22 commit the crimes on this indictment but without Mr. Haradinaj being a
23 party to the agreement. In other words, the Prosecution is suggesting,
24 and the words are clear, as an alternative to its main case, that
25 Mr. Haradinaj is not guilty. Paragraphs 202 and 243.
1 Well, that concession is inevitable, and it is correct, but it
2 can also be seen as an implicit acknowledgement by the Prosecution that
3 the verdict in Mr. Haradinaj's case too is close to inevitable. For how
4 can the Prosecution say to you that the evidence is consistent with that
5 proposition and yet say to you at the same time that they can prove his
6 guilt beyond reasonable doubt?
7 Your Honours, at the end of the first trial, the Prosecution case
8 against Mr. Haradinaj was fatally wounded, and the Trial Chamber on the
9 evidence they had before them rightly acquitted him. At the end of this
10 retrial, though, the Prosecution case isn't just fatally wounded. It is
11 finally, thankfully, and to the relief of many in Kosovo, dead in the
13 It doesn't necessarily follow from that that the order or the
14 fact of having had a retrial was wrong. It has, of course, prolonged the
15 agony of uncertainty for Mr. Haradinaj and his family. It has, of
16 course, deprived him of his liberty for a very, very long time and it has
17 deprived Kosovo of its most effective and unifying political leader
18 during a key period of it's history, which of course is exactly what the
19 Serbian authorities wanted to happen.
20 But it has at least served one important purpose in
21 Mr. Haradinaj's case, one very important purpose. At the end of the
22 first trial, there were those, the same people who wanted him on trial in
23 the first place, who were not prepared to accept the verdict, we all know
24 it, it's common currency in the diplomatic community and in the judicial
25 community in international criminal courts. Serbian officials and
1 politicians repeatedly briefed the media and others to the effect that
2 his acquittal had been secured unfairly, that relevant evidence had not
3 been heard because witnesses had been intimidated, a view that started to
4 gain serious currency in coverage of the case long before the
5 Appeals Chamber came to consider it. That at least can never and will
6 never be said of this retrial. This Trial Chamber has left no possible
7 stone unturned. The Prosecution has been allowed to call any witness it
8 chose, and not just those who didn't turn up first time round but any
9 witness they chose, and boy, have they taken advantage of it.
10 Every witness the Prosecution wanted to call was eventually heard
11 one way or another. They were given repeated adjournments over many
12 months to secure testimony while defendants were in custody, to secure
13 testimony that they were having difficulty presenting. The Trial Chamber
14 in this retrial has bent over backwards to accommodate the Prosecution to
15 the point of going literally to the ends of the earth in order to hear
16 the testimony of witnesses. No one can criticise this retrial for
17 leaving evidence out of the equation.
18 When Mr. Haradinaj is found not guilty this time round, as he
19 surely must be, there will be no scope for the mischievous, for the
20 politically motivated to question the correctness of the verdict. And
21 I'm going to ask you to make that clear in your judgement, to spell out
22 not just that the Prosecution has failed to prove its case, but to go
23 further and to spell out the undeniable fact that after what must have
24 been one of the most exhaustive examinations in the history of
25 international criminal law, spanning seven years and two trials and
1 umpteen hopeless, twisted, bent witnesses, he's innocent, properly
2 innocent, of the crimes of which he was charged. The lie that
3 Mr. Haradinaj was somehow complicit -- I'm sorry if Mr. Menon finds these
4 submissions amusing, but it would be helpful and less distracting if he
5 didn't smirk all the way through them. The lie that Mr. Haradinaj was
6 somehow complicit in the commission of war crimes has finally and
7 permanently been nailed by this Trial Chamber by shining the light of
8 truth into every single murky corner of the Prosecution case by hearing
9 and testing the evidence of every single slippery witness that the
10 Serbian authorities handed over to the Prosecution which they, in their
11 supine approach, simply put on before the Trial Chamber in attempts to
12 secure Mr. Haradinaj's conviction. The Tribunal has over the course of
13 two trials now with consistently independent Judges, frankly, an
14 observation that can't be made about the Prosecution, the Tribunal has
15 over the course of two trials exposed the truth. The evidence leads
16 inevitably to the same conclusion as the conclusion that was reached by a
17 series of experienced Prosecutors inside the Office of the Prosecutor who
18 told Carla Del Ponte back in 2005 that there never was a case against
19 Ramush Haradinaj. It didn't bother the Prosecution whether there was a
20 case or not. Any old rubbish will do. Witness 81, if you please. What
21 a disgrace.
22 They told her, those who advised her at the outset, that the
23 evidence couldn't begin to show that Mr. Haradinaj committed or condoned
24 the commission of dishonourable war crimes against vulnerable prisoners,
25 that he conducted himself according to somewhat higher principles than
1 that, believe it or not; that his popularity with the people of Kosovo
2 was borne out of genuine gratitude for his courage and his efforts and
3 sacrifices and those of his family in protecting a vulnerable population
4 from the genocidal campaign of an ethnic cleansing Serbian Army; that he
5 is loved in Kosovo and popular because of his qualities as a soldier --
6 JUDGE MOLOTO: May I interrupt you? May I interrupt you? May I
7 suggest that you stop clicking with your pen because it -- thank you so
9 MR. EMMERSON: The point the Prosecution seeks to -- the
10 inference the Prosecution seeks to draw from the repeated references to
11 the population's loyalty to Mr. Haradinaj is that he's somehow a bully
12 that's managed to intimidate the entire population. The reality, as I
13 shall seek to show through the testimony, is that he is a loved and
14 popular leader because of his qualities as a soldier and a politician.
15 You do not become a loved and popular leader because of your qualities as
16 a soldier if you are committing war crimes against vulnerable civilians.
17 And people know. They know the difference.
18 Not every war hero is a war criminal. Mr. Haradinaj was and is
19 an honourable man who fought an honourable war.
20 Your Honours, I see the time. Would that be a convenient moment?
21 JUDGE MOLOTO: It would indeed.
22 MR. EMMERSON: Yes.
23 JUDGE MOLOTO: Thank you so much. We will take a break and come
24 back at quarter to 6.00. Court adjourned.
25 --- Recess taken at 5.14 p.m.
1 --- On resuming at 5.45 p.m.
2 JUDGE MOLOTO: Mr. Emmerson.
3 MR. EMMERSON: As Your Honours know, the indictment relates to
4 the period during 1998 when the Kosovo Liberation Army was struggling to
5 establish itself.
6 During the first half of 1998, the KLA was made up of a small
7 number of committed fighters like Mr. Haradinaj, together with an
8 increasing number of ill-equipped and untrained part-time volunteers.
9 The important point to emerge from the evidence is that the structure of
10 this fledgling organisation as it was described in the first trial by
11 Colonel Crosland, the military attache to the British embassy in
12 Belgrade, was essentially horizontal rather than vertical.
13 It's common ground that the Kosovo Liberation Army can't be
14 compared in any way to the command structure of a conventional military
15 force. As Mr. Rogers put it earlier, strict military hierarchies were
16 just not in place. And that, no doubt, is why the Prosecution has never
17 charged Mr. Haradinaj under the theory of command responsibility
18 reflected in Article 7(3) of the Statute, although you may have thought
19 that some of the submissions made, both in the closing brief and in oral
20 argument, come very dangerously close to a command responsibility basis
21 for liability.
22 The reality is that there was no effective command structure
23 operating at any point during the indictment period. Most of those who
24 fought with the KLA were villagers who'd returned to their daily lives as
25 farmers or labourers when they weren't actively involved in the fighting.
1 Soldiers by night, effectively, farmers by day. They had no uniforms for
2 the most part and insufficient weapons to go around. As you've heard in
3 relation to one village under attack by the Serbs, there'd be four men
4 for every weapon being fired. They had none of the modern technology of
5 warfare and no effective communications systems. This was a paradigm of
6 asymmetric warfare in which increasing numbers of armed civilians, a sort
7 of home guard, took up arms to defend their own villages and communities
8 against the vast superior strength of the Serbian military. There was no
9 professional army on the Albanian side, no powers of conscription, no
10 general command of the sort that would be known in any conventional army,
11 no centralised authority.
12 In that context, Mr. Haradinaj as the man who had survived the
13 Serbian attack on the 24 of March was, in reality, the commander of those
14 who chose to follow him on any particular day.
15 For much of this retrial we have inevitably focused close up and
16 in dirty detail on what is said to have happened inside a small building
17 in walled compound in Jabllanice. The crimes on this indictment are only
18 concerned with what happened within those four walls. But in an attempt
19 to connect Mr. Haradinaj, a commander from the opposite side of the
20 Dukagini zone with those crimes, the Prosecution selectively relies on
21 items of evidence in order to paint what it says is a broader analysis of
22 command relationships within the KLA and Mr. Haradinaj's supposed
23 influence over those in Jabllanice. And so in the course of my
24 submissions this afternoon, I'm going to pull back the focus of the
25 camera and take a wider-angle view of the conflict in Western Kosovo
1 during the indictment period so that we can see how the crimes committed
2 inside that small courtyard fit into the reality of what was actually
3 taking place at just the same time across the other side of the Dukagjin
4 region where Mr. Haradinaj was manning the real front line.
5 A bird's-eye view is really the best way of exploding the myth
6 that Mr. Haradinaj can be held responsible for crimes which he's no
7 longer alleged to have participated in or even been present at, crimes
8 committed inside a facility he's never been shown even to have visited
9 and which was located miles away across very difficult terrain to
10 navigate, miles away from the front line where his headquarters were
11 located and where he was almost constantly engaged in trying to hold the
12 Serbian forces at bay.
13 JUDGE MOLOTO: Did you say he was not never shown to have visited
15 MR. EMMERSON: Yes. There is no evidence in this trial that
16 Mr. Haradinaj ever visited the compound in which prisoners at Jabllanice
17 were detained.
18 JUDGE MOLOTO: I beg your pardon. I misunderstood what you
20 MR. EMMERSON: Yes. That's a very important point, because --
21 JUDGE MOLOTO: I thought you meant Jabllanice --
22 MR. EMMERSON: No, no. The only evidence is of him visiting the
23 KLA headquarters in the Brahimaj family house inside the village, not the
24 compound where prisoners were detained.
25 Can I then just -- just say a few words about the Serbian
1 military campaign on the other side of the zone, and I say it for this
2 reason, because although a lot of this evidence has been admitted in this
3 trial, it's been admitted by agreement from the previous trial. So it
4 hasn't been played or read in the course of these proceedings and hasn't
5 been the focus, if you like, of attention in the course of the case as
6 it's been presented in hearings before Your Honours. Can I just
7 summarise the background and one or two of the key milestones so that we
8 can see how the charges on the indictment fit in with what was really
9 going on on the other side of the zone.
10 In the -- in the decade or so, if I just sketch in the political
11 background briefly, in the decade or so running up to the outbreak of
12 hostilities in the beginning of 1998, a number of different
13 Kosovar Albanian political parties emerged, and we've heard evidence,
14 even Your Honours have heard evidence about one of them, the
15 Democratic League of Kosovo, or the LDK, which was formed in 1989 under
16 the leadership of Ibrahim Rugova, and Your Honours have heard that the
17 LDK advocated a peaceful non-violent solution to Kosovo question through
18 dialogue with Belgrade. It's of particular relevance in the present
19 case. You remember one witness - and I'm not going to mention him in
20 open session, but it's a witness that's been referred to at various
21 points in closed session - told you that the population of his village
22 were predominantly supporters of Rugova's LDK and that it was for that
23 reason, he said, that they were disliked and punished by Lahi Brahimaj
24 and those at Jabllanice. I simply point out that there is no evidence at
25 all that Ramush Haradinaj operating on the opposite side of the Dukagjin
1 Zone regarded the LDK as his political enemies or opponents. Indeed,
2 when he was prime minister of Kosovo, he was in coalition government with
3 Ibrahim Rugova's LDK.
4 The other main political grouping in Kosovo at the time was the
5 LPK, or Popular Movement for Kosovo, which advocated direct resistance to
6 the Serbian state including armed insurrection, and it was through that
7 organisation that pockets of armed resistance sprung up. But it was not
8 until the end of 1997 a few short months before the start of the
9 indictment period, that the Kosovo Liberation Army made its first public
10 appearance in Kosovo. It gives an idea of it's longevity.
11 By that time, President Milosevic and his supporters had resolved
12 to take the next step in their plan for Kosovo by destroying those
13 Albanian villages that were perceived to be the heartland of armed
14 resistance to the Serb regime. And so at the beginning of 1998, as the
15 indictment period with which we're concerned commences, orders were being
16 issued from Belgrade to begin the implementation of that plan.
17 The first Serbian attacks occurred in late February and early
18 March 1998. On the 28th of February, Serb forces launched an attack
19 without warning on two villages in the Drenica region, Qiroz and
20 Likoshan. They fired indiscriminately at civilians using helicopters,
21 armoured military vehicles, mortars and machine-guns, and at the end of
22 the day, 26 Albanians including a pregnant woman had been killed, many of
23 them at very close range. At least 12 of them were shown to have been
24 put to death after they had been arrested by the Serbian police. So that
25 was the first milestone.
1 On the 5th of March, just three weeks before the attack on the
2 Haradinaj compound, Serb forces attacked the family found of a KLA leader
3 Your Honours have heard of called Adem Jashari in Prekaz. A police
4 special forces shelled the Jashari family compound and then ground forces
5 moved in and simply shot everybody who'd survived. Fifty-eight people
6 were killed including 18 women and 10 children under the age of 16. And
7 at about the same time, an attacked was launched on the nearby village of
8 Laushe so that by the end of the day on the 5th of March, about 80
9 Kosovar Albanians had been killed in those combined and very brutal
10 operations including not just women and the elderly but very young
11 children. And it's immediately obvious the effect that that would be
12 likely to have on the Albanian citizens in the rural areas of
13 Western Kosovo. And, indeed, the evidence that's been admitted from the
14 first trial makes it clear that an atmosphere of deep instability, fear,
15 uncertainty began to spread like fire through the communities that lived
16 in rural, remote locations that perceived themselves to be the next in
17 line for attack.
18 And that is the background to what took place three weeks later
19 on the 24th of March, 1998, in Glodjan which is, if you like, the first
20 major event at the start of our indictment period.
21 Serb forces moved in the days prior to the 24th of March on to
22 their next target, on to the Haradinaj family in Glodjan. They were
23 going to be the next Jasharis, and Colonel Crosland who was in the area
24 at the time and who witnessed the build-up of Serb forces gave evidence
25 which Your Honours have admitted describing a massive influx of military
1 police and army to the area surrounding Glodjan together with what he
2 described as paramilitary thugs coming into the area. It was clear to
3 him, he said, that something big was about to happen and that the Serb
4 forces were gearing up for another major attack. And when it came on the
5 mid-morning of the 24th of March, the Serb tactics were essentially the
6 same as they'd been in Prekaz, but this time those in Glodjan were ready,
7 and they, the Serb forces, expected -- sorry, encountered a fierce
8 resistance from Mr. Haradinaj and his brothers.
9 The Serb troops - and this is important for understanding one of
10 the threads in the Prosecution case - the Serb troops took up position
11 and opened fire on the Haradinaj compound from the property next door to
12 theirs, which is a farmhouse owned by their nearest neighbours, a Serbian
13 family in Glodjan who's familiarly name was Stojanovic. It may be
14 familiar from the submissions that the Prosecution makes that what
15 happened to that family is somehow relevant to what happened in
16 Jabllanice. And I'm going to return to say something about them and what
17 happened to them later in my submissions, because Your Honours have heard
18 that they were, some days after the 24th of March, attacked by the
19 villagers of Glodjan who believed rightly or wrongly that not only had
20 their home been voluntarily used to launch the assault on the village but
21 that the family had been passing information to the Serb forces to enable
22 them to launch this blistering operation.
23 When the shooting began, the evidence shows that the male members
24 of the Haradinaj family returned fire. They moved, in fact, from one
25 window of their compound to another to create the impression that there
1 were more of them than there were, and somehow managed to provide
2 sufficient fire cover to enable the women and children of the family to
3 escape via a back route and then succeeded in holding the Serb forces at
4 bay until nightfall when they were able to escape themselves one by one.
5 Mr. Haradinaj was very seriously wounded in the course of that
7 During the course of the day on the 24th of March, Serb forces
8 were seen using heavy weapons in civilian areas, including a Praga
9 30-millimetre cannon, armoured vehicles and military helicopters.
10 Paramilitary police entered the village, engaging in close fire-fights,
11 many civilians were rounded up and detained, large parts of the village
12 were destroyed and three local teenagers were killed by Serb forces as
13 they were fleeing to safety.
14 There were reports that are in the evidence before you that
15 school children were used by Serb forces as human shields and that one
16 elderly company was shelled in their home. Simultaneously attacks were
17 launched by Serbs on the nearby village of Irzniq and these villages were
18 effectively left empty because the civilian population that -- those that
19 hadn't suffered casualties fled.
20 In the end, the Serb forces withdrew without managing to massacre
21 the Haradinajs the way they massacred the Jasharis. And Mr. Rogers is
22 right when he says to you this morning that the survival of the Haradinaj
23 family, in the face of overwhelming odds quickly became a symbol for a
24 very frightened Albanian population, a sign that it was possible to
25 resist the Serbs and to win. That is, he's right to say, the origin of
1 the popularity that Ramush Haradinaj had with the people of the Western
2 Kosovo. He was for them a sign that there was hope, someone who was
3 there, who was prepared to protect them against the Serbs. And you'll
4 hear in a short while by reference to actual testimony that was admitted
5 from the first trial that the people of Western Kosovo loved him and
6 still do.
7 Your Honours, the failed Serbian attack on the 24th of March
8 marked the first major milestone in the indictment period, but it was by
9 no means the only military attack in Western Kosovo at that time. The
10 most serious and sustained Serb attacks in the indictment region occurred
11 in the course of two major offensives between May and September. The
12 first was towards the end of May and the beginning of June, and the
13 second was towards the end of July and the beginning of August. There
14 was then a further offensive at the beginning of September. And I'm just
15 going to say a word or two, if I may, about these, because they give you
16 a good picture of the military priorities of Mr. Haradinaj and others on
17 the front line on the western side of the Dukagjin region and also
18 because they're pretty important to evaluating the Prosecution's case
19 about what was really taking place on the ground. You would have seen
20 constant references in the Prosecution's brief to this area being under
21 secure KLA control and it's important to subject that to some scrutiny.
22 Can we start, please, with the first Serbian offensive in the
23 second half of May and to put some of the evidence you've heard about
24 particular villages into context, and we have, for that purpose, a map
25 which I think is coming up now. Your Honours can see the large blue area
1 to the bottom is known as Lake Radoniq, and on the top left hand is Peje.
2 And the main Peje to Gjakova road proceeds vertically on the -- just off
3 the left-hand side of the screen. So, essentially, in the second half of
4 May, there were first of all some attacks on the western side of this
5 road close to the Albanian border, but then Serb forces attacked a
6 village called Grabanice which has been mentioned by Mr. Rogers this
7 morning on the 19th and 20th of May. Do we have Grabanice? Great. The
8 date of that attack, the 19th and 20th of May, is an axis date for
9 Your Honours because Mr. Rogers has tried to build quite an elaborate
10 case theory around it for reasons that Your Honours are aware of.
11 MR. ROGERS: I don't want to interrupt, Mr. Emmerson. Can I just
12 understand, is this an exhibit that's in the record? If so, could you
13 give us the P reference, or is it -- or D reference, or is it one that
14 you're just using?
15 MR. EMMERSON: [Overlapping speakers] I think it was in the
16 record from the first trial. I'm using for the purposes -- and this is a
17 graph to illustrate the evidence that is in -- in -- in from the first
18 trial. If we -- if it was admitted in the first trial then we need to
19 check whether it was admitted into the record in this trial, but it
20 doesn't make any difference for the purposes I'm using it for.
21 So 19th and 20th of May, attack on Grabanice. Number of
22 civilians were killed before Grabanice fell to the Serbs and the local
23 population fled to seek shelters in nearby towns and villages and some of
24 them on the evidence went to Jabllanice.
25 By the 25th of May, Serb special forces attacked the villages of
1 Lybeniq and Strelle and buildings were burnt in those attacks and 11
2 villagers were killed. And then on the 28th of May, Serb forces advance
3 across territory south-west from Peje and launched attacks in the areas
4 around Vranoq and Baran. Now, those dates and those towns, Vranoq and
5 Baran, are also highly significant. Baran was later to become the
6 location of the FARK barracks commanded by Witness 17. Witness 17 was
7 the commander of the FARK barracks at Baran and it's important because
8 when we come to look at some of the documents that Mr. Rogers has relied
9 upon, suggesting that they were KLA hit list, for example, they're in
10 fact documents that were compiled by Witness 17.
11 MR. ROGERS: Sorry to interrupt. I think we need to just briefly
12 go into private session.
13 JUDGE MOLOTO: May the Chamber please move into private session.
14 Yes, Mr. Rogers.
15 [Private session]
10 [Open session]
11 THE REGISTRAR: Your Honours, we're in open session. Thank you.
12 JUDGE MOLOTO: Thank you very much.
13 Yes, Mr. Emmerson.
14 MR. EMMERSON: So that was the 28th of May attacks on Baran and
16 Simultaneous attacks also occurred on the same day, for the
17 record, in Junik, in Cerrebreg, in Prejlep on the main -- at Peje-Gjakova
18 road and in Isniq and Rastavice.
19 Now, Your Honours, pausing there for a moment, throughout this
20 period of time May/June, the Serb forces were maintaining constant
21 pressure on all of the villages around Glodjan regularly shelling from
22 vantage points in three elevated positions to the south supported by
23 police paramilitary units who made forays into areas on the ground. And
24 we're going to look at those three elevated points in a moment, but
25 essentially on this plan they are located in an arc around the southern
1 end of Lake Radoniq.
2 Before we look at those, Your Honours, the second major Serbian
3 offensive was launched across the Dukagjin region at the end of July and
4 the beginning of August. The villages attacked at that stage included,
5 again, Junik on the western side of the main road, Rastavice and Prejlep.
6 On the 2nd of August Serb forces entered Jabllanice and took it.
7 Gramocel was overrun on the 8th of August, and the villages of Shaptej
8 and Rastavice fell to the Serbs on the 9th of August. Serb forces then,
9 and Your Honours can see that the location, Serb forces then moved in
10 towards Glodjan and Irzniq and took control of Glodjan itself overrunning
11 Mr. Haradinaj's defences on the 12th of August.
12 That date is important for two reasons: The first is that the
13 Prosecution rely heavily in their closing arguments both written and oral
14 on the evidence of Achilleas Pappas a member of the European Union
15 Monitoring Mission or ECMM whose group of monitors were detained by KLA
16 soldiers in Irzniq near Glodjan on the 11th of August just as the Serb
17 forces were closing in. They were detained because they had driven from
18 Pec directly alone and unarmed into the conflict zone around Glodjane, a
19 reckless decision on any view.
20 Mr. Haradinaj was called away from the front line to deal with
21 them. And the Prosecution apparently rely on this indent to support an
22 allegation that Mr. Haradinaj had the propensity to mistreat civilians
23 and was therefore somehow more likely to have been part of a joint
24 criminal enterprise on the opposite side of the zone to deal with
25 detainees in Jabllanice in an unlawful fashion. In fact, as I'm going to
1 show Your Honours from the evidence of Mr. Pappas, what actually happened
2 when Mr. Haradinaj arrived demonstrates as usual when looked at in detail
3 quite the reverse of what the Prosecution suggests, because Mr. Pappas's
4 evidence was that once Mr. Haradinaj arrived, even though he'd taken
5 himself away from the front line to deal with a group of people who had
6 irresponsibly driven directly into a conflict zone, he treated them with
7 complete professionalism and gave them safe passage out of the area at a
8 time when he must have been under unspeakable stress.
9 So just to pause there for a minute. I want now to just examine
10 those three positions that had been taken up by the Serb forces from the
11 23rd -- from the 24th of March onwards.
12 The evidence shows, and this is from Serbian military -- senior
13 Serbian military commanders who were stationed in that horseshoe that the
14 villages around Glodjan were under almost constant surveillance and
15 intermittent attack from the Serb forces stationed on these three
16 strategic peaks just a few kilometres to the south. I'll just give you
17 their names. They are Suka Babolloq, B-a-b-o-l-l-o-q; Suka Bitesh,
18 that's B-i-t-i-s-h or B-i-t-e-s sometimes; and Suka Cermjan,
20 Now, to use the words of Branko Gajic who was the head of
21 military intelligence for the Vojska Jugoslavije, the VJ army, whose
22 evidence has been admitted from the first trial, the troops stationed on
23 these three areas of high ground near Glodjan were there to operate as "a
24 bone in the throat" of the KLA in the Glodjan area, a "bone in the
1 So if we can just look at the positions that they were at. So
2 you see here the view from the Serb military position at Suka Babolloq
3 and the conurbation that you can see towards the stop left of the picture
4 is Glodjan or the Glodjan-Irzniq area.
5 If we move on to see the view from Suka Bitesh, the next one as
6 we travel eastwards, there were Serb forces also stationed there, and you
7 can see their view of Glodjan and Irzniq in the distance towards the
8 horizon. And then figure 5, the next slide, will show you the view from
9 Suka Cermjan on the other side of the lake with Glodjan and Irzniq
10 appearing again in the centre of the screen. And, finally, figure 6
11 shows us the view from the south shore of the lake towards Glodjan, and
12 you can see Suka Bitesh on the opposite side of the lake, and so on. So
13 you have these three elevated positions. And as Your Honours can see --
14 if we can just go back, please, to figure 5 for a moment, as Your Honours
15 can see they provide the ideal strategic locations to enable the Serbian
16 military to effectively command the terrain with the ability to observe
17 all the movements in the area and to deploy both long-range artillery and
18 ground troops where necessary and there's ample evidence admitted from
19 trial one that that is what they did throughout the indictment period.
20 So as Mr. Gajic put it so graphically with his bone in the throat
21 analogy, the aim of the Serb military commanders with the troops
22 stationed at three high points was quite literally to choke the KLA in
23 the Glodjan area, to restrict their ability to operate, to make it very
24 difficult for them to move around the terrain and to pick them off if
25 they could be seen moving across country. And that, Your Honours, is why
1 you've heard that it was so difficult to travel between the front line at
2 Glodjan and the village of Jabllanice where the crimes on this indictment
3 took place, because while the distances were not huge, it was impossible
4 to travel in daylight or by the main roads.
5 And if Your Honour sees Glodjan and Irzniq, the route by which
6 they would have had to travel would take them across the north end of the
7 lake there, on the right side of the picture, going to the right, that
8 is, eastwards, across the map with three horseshoe high-level
9 surveillance points with high-powered vision equipment and long-range
10 weapons as well as fast rapid deployment paramilitary police forces
11 available to enter onto the ground the moment things moved.
12 So if it was necessary to get from Glodjan to Jabllanice or vice
13 versa, KLA soldiers would have to move slowly and with stealth to avoid
14 troops stationed on the high ground and Bizlim Zyrapi who gave evidence
15 before Your Honours and others from the previous trial told the Tribunal
16 how that would be done. You heard the evidence yourself but now you can
17 see exactly why it was. Generally journeys would be made at night. They
18 would travel not on the main roads but side roads or sometimes just
19 across fields or rough terrain so that they wouldn't be visible and
20 they'd drive with the vehicle lights turned off. So this wasn't a
21 journey anybody was going to make unless they had a very good reason for
22 making it, which perhaps you may think explains why it is that on the
23 evidence that's been adduced in this evidence Mr. Haradinaj is only shown
24 to have made that difficult journey to Jabllanice on four occasions
25 during the whole of the indictment period. Four occasions in nine
2 That begins to give you a frame of reference for the
3 Prosecution's extravagant submission that he's somehow to be held
4 responsible for things had a happened in Jabllanice outside his area of
5 command, at a time when he went there, and when there's no evidence of
6 him knowing of the events or turning a blind eye on any occasion.
7 Can -- can -- can I just return now to give Your Honours a
8 flavour of the intensity of the Serbian front line campaign that
9 Mr. Haradinaj and others were actually contending with on the western
10 side of the Dukagjin region.
11 The pattern of the Serb attacks I've described in these
12 offensives was in each case essentially the same. First of all, villages
13 would be surrounded by Serbian heavy artillery and armoured vehicles.
14 Just letting the transcript catch up.
15 There would then be a destructive phase of bombardment whilst
16 civilians remained in the village. And then the notorious paramilitary
17 police would enter the area - this is all the villages around where
18 Mr. Haradinaj was based - on foot, shooting the survivors who'd remained,
19 looting Albanian property, killing livestock and setting fire to
20 everything from buildings and schools to haystacks. These were
21 euphemistically called mopping-up operations.
22 In many instances, the villages were simply razed to the ground
23 and these Serbian operations were invariably characterised by the use of
24 indiscriminate and excessive force with no distinction between drawn
25 between combatants and civilians, the aim quite simply was to ethnically
1 cleanse the area of its Albanian population and to destroy their villages
2 in order to prevent their return. That's what Mr. Haradinaj was doing.
3 Can we look briefly at two passages of the evidence. I've handed
4 up to Your Honours a bundle of transcripts of evidence that I want to
5 refer to directly. But rather than simply read them out from the page,
6 we've brought up for the screen the videos of the witnesses giving the
7 evidence. They're relatively short passages but they give you a flavour.
8 And the first one is Colonel Crosland who describes what he saw in
9 relation to the types of attacks that were taking place in
10 Western Kosovo. So this is Exhibit P508, and if we can just play this
11 first short passage and then there's one other short passage for him to
12 play immediately after. Just play one after the other, please.
13 MR. ROGERS: Just inquire, before we do, whether the face is
15 MR. EMMERSON: It is.
16 MR. ROGERS: Thank you.
17 MR. EMMERSON: Colonel Crosland gave evidence with face but not
18 voice distortion, and that's how the passage appears.
19 [Video-clip played]
20 "Q. In one of your witness statements, you say this, and I
21 quote: 'I myself saw between 200 and 300 villages burnt throughout 1998
22 and into 1999. Crops were just wantonly burned. Businesses of all
23 sorts, for example, petrol stations and shops were looted, and within
24 towns like Decani, Pec, and Djakovica, the Albanian areas were completely
25 burnt out. This included damage to mosques. Some villages had been
1 looted and burnt at least on three occasions, with the civilian
2 population leaving and then returning once they thought it was relatively
3 safe to come back.'
4 "You've made statements other statements in other words saying
5 much the same thing at various times. Before you tell us about the
6 civilian population leaving and come back, can you just summarise for the
7 Judges how those operations were conducted and with which forces doing
9 "A. The initial statement about the 2 to 300 villages,
10 Your Honour, is made in several reports throughout 1998 and 1999 as a way
11 of trying to convince the international community and the various other
12 foreign powers who were interested that the behaviour of the Serbian
13 security forces was not acceptable to the situation that was in Kosovo
14 itself. The words of ethnically cleansing were not -- I was not allowed
15 to use because ethnic cleansing has a legal connotation which I'm sure
16 the Court is far more well aware of than I am.
17 "Q. I'm not asking you to use it. I'm just asking you to
18 describe what you saw.
19 "A. But, I saw, as set out in that paragraph, exactly what
20 Mr. Emmerson has read out. I don't think I can say any more than that.
21 "Q. Who was -- which troops were involved and what were their
22 roles in the -- the destruction and the burning and looting of the groups
23 that we have described, VJ, SAJ, PJP, JSO, paramilitaries? Who was doing
24 what when you were in Kosovo?
25 "A. All of these formation were involved in -- in destroying and
1 destruction of both villages, businesses, crops, houses, and mosques,
2 et cetera.
3 "Q. Did you see properties being looted?
4 "A. Yes, I did, sir.
5 "Q. And who would be doing the looting, men in uniform, or men
6 out of uniform?
7 "A. The ones that I saw were men in uniform.
8 "Q. And what sort of things were they taking out of people's
10 "A. At Rakovina, on the road up from Djakovica I saw a PJP with
11 a wheelbarrow with a television in it.
12 "Q. And then when they'd looted the houses, was it after that
13 that they would burn them down?
14 "A. This was not an ongoing purpose. Sorry, this was an ongoing
15 project of most operations, and when challenging the Vojka Jugoslavije
16 rumour, I'm not accredited to the MUP --
17 "Q. Yes.
18 "A. I mentioned this fact on several occasions in 1998 to
19 General Ojdanic in particular and other people, that the behaviour of the
20 Serbian security forces was only driving the Albanian population into the
21 hands of the Kosovo Liberation Army, whether they wanted to go or not.
22 And the behaviour of many troops, myself and my colleagues on several
23 occasions, were actually fired at by Serbian security forces.
24 "Q. And, again, just to get the flavour of this absolutely
25 clear, did you see animals shot and crops and animal feed stacks being
1 burnt and destroyed?
2 "A. Yes, I did.
3 "Q. What did you understand to be the purpose of killing the
4 animals and destroying the feed for the winter?
5 "A. Well, you just mentioned the word 'winter,' and during as
6 the 1998 proceeded, when more and more people, Albanians primarily but
7 also Serbs as well, were being driven from their homesteads, then
8 obviously the problem would be how these -- these people would survive
9 the winter when the homesteads had been burnt, their crops had been
10 burnt, and their animals had been killed."
11 MR. EMMERSON: There's one other very short passage from
12 Colonel Crosland that I'd like to play, please, which is listed in the
13 index to your transcript bundle as tab 2. It's Exhibit P508.
14 [Video-clip played]
15 "Q. Can I just put one rather more specific proposition to you
16 and ask you to comment on that. I think you've said at various times
17 that the role of the VJ in these joint operations would be to provide
18 shelling cover, in other words, a destructive phase of bombardment before
19 the burning started, although I think you'd also said that certainly
20 later on there were VJ officers on the ground joining in the burning; is
21 that right?
22 "A. Unfortunately, that appears to be correct. Through --
23 through the majority of, as I understand it from what I saw in 1998,
24 indirect fire was provided by Vojka Jugoslavije tanks and artillery to
25 MUP operations, but sadly in 1999, when we of moved out because of the
1 NATO bombing, it appears that the Vojka Jugoslavije was then involved in
2 other more direct forms of action.
3 "Q. I think you told us yesterday, and it may be that you
4 corrected yourself or it was in error, and, if so, then now is the time
5 to say so, I think you told us yesterday that when you were driving
6 through Prilep and Irzniq on the way to the canal, the destructive
7 operation that you saw taking place then was being jointly conducted on
8 the ground by VJ and MUP forces. Does that accord with your
10 "A. I think the -- yes, that's correct, sir. I think there were
11 tanks there that were doing destruction as well, yes.
12 "Q. Yes. Now, coming back to my question, could the VJ's
13 involvement in these types of operations have occurred without the
14 authority of Bozidar Delic and Dragan Zivanovic?
15 "A. In my opinion, no.
16 "Q. Thank you."
17 MR. EMMERSON: Bozidar Delic and Dragan Zivanovic of course were
18 the VJ commanders stationed in the area, one of whom was responsible for
19 the deployment of the troops on the three areas of high ground that we
20 have looked at.
21 When Colonel Crosland describes that joint VJ PJP looting and
22 burning operation in Prilep and Irzniq that he saw, those of course are
23 the villages either side of Glodjan, and you'll see when you look at his
24 testimony in detail that they've been razed literally to two inches from
25 the ground.
1 So that -- that's the kind of operation that Mr. Haradinaj was
2 contending, but I said a little earlier on that the day that Mr. Pappas
3 and his group of ECMM monitors were briefly detained that Mr. Rogers
4 seeks to rely upon in this case, the Serb forces were drawing in on
5 Glodjan and Irzniq ready to launch the final offensive by which Glodjan
6 fell to the Serbs on the 12th of August, and that -- that ultimately
7 forced Mr. Haradinaj to abandon his headquarters in Glodjan on the 12th
8 of August and ultimately forced him to resign as commander of the
9 Dukagjin Zone for a period of time in favour of Tahir Zimaj who was then
10 the FARK commander.
11 Your Honours, on that day, the 11th or 12th - well, on the 12th
12 in fact - a BBC film crew was in Glodjan and Irzniq as it happens at the
13 very time that the Serb forces took control of the area and they captured
14 footage of the Serb assault. And the broadcast I'm just about to play to
15 Your Honours gives you a vivid picture without having to paint it in
16 words of the kind of military engagement that was taking place, and this
17 was the situation that Mr. Pappas and his group were driving directly
18 into on the 11th of August. Could we please a play the BBC video and
19 Your Honours have a transcript of it as do the interpreters in tab 3, is
20 it, with reference D97.
21 [Video-clip played]
22 "The Serbs know that they have the upper hand and they're
23 determined to press home the advantage. This time it was the village of
24 Glodjan in flames shelled and machine-gunned into submission. On the
25 other side, the KLA allowed us exclusive access to their new front line.
1 They're nervous but determined. Some of these men come from this
2 village. They know what's happened up ahead, and that they now lie
3 directly in the path of the Serb offensive which has already removed the
4 rebel fighters from most of their strongholds in Kosovo. The waiting is
5 tense. But already it's clear that they won't have to wait long. The
6 shells are now falling on Irzniq. Against artillery there is little that
7 the KLA has been able to do but run. All this is happening while both
8 sides consider peace proposals and the international community struggles
9 to find a way forward. Despite the international diplomacy the situation
10 on the ground remains unchanged. The Serbs are still pressing their
11 offensive, the KLA still defending their villages and communities. The
12 Serbs, of course, don't see it that way. They insist that the rebel
13 fighters are the problem, and without them so much misery and destruction
14 could have been avoided. Here it's the paramilitary police that are
15 bearing down on the KLA. In other places we saw heavily armed units of
16 the Army of Yugoslavia. The Serbs say they now regard this as a
17 mopping-up operation. For the KLA it's becoming a battle for survival.
18 When there is fighting, there are of course more refugees. Almost
19 200.000 people have been made homeless by this conflict. The aid
20 agencies have been hoping that they would return to their villages.
21 What's happened today makes that a very distant prospect. Jeremy Cooke,
22 BBC News, Irzniq, Kosovo."
23 MR. EMMERSON: So, Your Honours, I hope that that -- that brief
24 run through gives you a flavour of what was taking place during our
25 indictment period in the area with which Mr. Haradinaj was concerned, as
1 well as placing into context some of the more extravagant inferences that
2 the Prosecution invites you to draw. We'll look at some more of them in
3 detail a little later. But the next thing I want to do is just draw the
4 threads together. Having set that background to draw the threads
5 together as it relates to the counts on the indictment.
6 Can I do that by just setting out, if you like, five or six key
7 points along the indictment period both as they relate to the offensives
8 and the crimes and the organisation such as it was or attempted
9 organisation of the KLA. And I'm going to be referring for this purpose
10 and perhaps just for the purposes of the transcript perhaps note that the
11 key aspects of the chronology are summarised with references at paras 19
12 and 21 of our final brief, but can I just take it in this way in
13 essentially the following -- the following periods: Between March and
14 May, in the face of these threats from the Serbian military, rudimentary
15 defences emerged spontaneously in many of the villages in Western Kosovo.
16 On the 26th of May, the leaders of certain of the villages around the
17 area of Western Kosovo came together for the first time in an attempt to
18 co-ordinate their efforts. That's the 26th of May meeting that
19 Mr. Rogers has referred to in which a regional staff was formed with five
20 subzones. And Your Honours have seen a map - and I'm going to come back
21 to the map in a little while - of the five subzones, and Your Honours
22 will recall the different areas and who was in charge of them.
23 Critically for the purposes of our case, Jabllanice was way outside. So
24 on the 26th of May a regional staff was formed involving these five
25 subzones. Jabllanice wasn't incorporated within its structure and
1 continued to operate as it had been as an independent group of KLA
2 fighters outside this co-ordinated structure established on the 26th of
4 It wasn't until the 23rd of June when the Dukagjin Zone
5 operational command was established that Jabllanice came to be
6 incorporated in any co-ordinated effort at all, and Your Honours have the
7 minutes of a prior meeting on the 21st of June in Irzniq which refers in
8 terms to the need to incorporate Jabllanice within a joint structure for
9 the purpose of improving co-operation and co-ordination. That's P190.
10 The important point being it's absolutely clear that prior to the
11 23rd of June at the earliest, Jabllanice wasn't even co-ordinated with
12 the four subzones immediately along the front line of the Peje to Gjakova
14 Moving to the period between May and June, we know that
15 Jabllanice continued to function as a separate area, and of course it was
16 in that period that it is alleged that the crimes charged in Count 1,
17 Count 2, Count 3, and Count 4 are said to have taken place.
18 Now, we -- if we move forward in time to the 23rd of June when
19 Mr. Haradinaj was elected as commander of the newly formed Dukagjin
20 or -- Plain Operational Zone, our submission to Your Honours, and it's
21 set out in detail between paragraphs 100 and 118 of our brief, is that
22 the evidence shows very clearly that even after the 23rd of June there is
23 nothing to suggest that Mr. Haradinaj was kept informed of the actions of
24 those in Jabllanice, that he was in effective day to day command or
25 control there, or indeed that he was in a position to issue directions.
1 During the period of July, it's alleged that the crimes charged
2 as Count 5 and 6 took place, although Witness X testified that the crime
3 charged in Count 6, in fact, took place earlier than that.
4 Each of those stages of development were punctuated by the
5 sustained Serbian attacks that Your Honours have seen with their fairly
6 catastrophic effects on the civilian population.
7 So what then was the state of play with organisation inside the
8 KLA across that period of time? Well, Mr. Zyrapi told you that there
9 were at least three independent centres of KLA resistance in Western
10 Kosovo, the Jashari family compound in Prekaz until their massacre, the
11 Haradinaj family compound in Glodjan, and the Brahimaj family in
12 Jabllanice. None of those families, he told you, had the authority or
13 ability to impose their will on any of the others. And he confirmed in
14 terms that the Brahimajs could not tell the Haradinajs what to do and the
15 Haradinajs could not tell the Brahimajs what to do.
16 The Prosecution also called Skender Rexhametaj who was one of the
17 subzone commanders established in the command set up on the 26th of May
18 in an effort to bolster the contention that Mr. Haradinaj's participation
19 in the Jabllanice counts could be inferred from his command and
20 leadership position. But, in fact, Mr. Rexhametaj's evidence was to
21 quite the opposite effect. He testified that Jabllanice was not included
22 in the first attempt to establish a regional staff on the 26th of May,
23 and that the staff at Jabllanice continued to act independently. He said
24 that it was he, Mr. Rexhametaj, who then proposed that steps needed to be
25 taken to incorporate Jabllanice to improve some level of co-ordination.
1 And, critically, he told Your Honours that even after the 23rd of June
2 with the Dukagini Plain Operational Staff being agreed and Mr. Haradinaj
3 elected as a commander and even after therefore Jabllanice was formally
4 incorporated within this fledgling structure, Mr. Rexhametaj told
5 Your Honours that the organisation remained horizontal in reality even
6 after the 23rd of June, that no one of the power bases could give orders
7 to the other and that everything had to be done by consensus and by
8 consultation and that the commanders of the various subzones he said
9 continued to act independently with volunteers making up the force. He
10 told you that the Dukagjin Zone structure, such as it was, was in his
11 words an aspirational blueprint for the military organisation that they
12 were hoping they might be able to create at some pointed in the future.
13 That is the reality of the evidence.
14 Now, Your Honours, in the time that remains today I want to
15 start, if I may, by going through the three incidents in the evidence
16 before you in which Mr. Haradinaj is alleged to have played a direct
17 part. I'm going to leave out for a moment the FARK confrontation which
18 I'll come back to at the close of my submissions, because in our
19 submission that's really got absolutely nothing to do with this case.
20 But there are three key points at which he appears in the evidence, and
21 we need to look, if we may, briefly at each of them to see what
22 inferences can safely be drawn.
23 First of all, there is the evidence concerning his intervention
24 following the severe injuries that ultimately resulted in the death of
25 Skender Kuqi. And Skender Kuqi Your Honours will remember had been part
1 on the evidence of an escape attempt from Jabllanice which had taken
2 place around, I think, the 17th or 18th of July along with Witness 3 and
3 Pal Krasniqi, and at the time, also detained at Jabllanice on the
4 evidence was Witness 6. So that just -- just places it in its context.
5 Now, before we look at what the evidence actually establishes
6 about Mr. Haradinaj's involvement in the Skender Kuqi case, I want just
7 to stand back for a minute because Mr. Rogers made a rather glib
8 suggestion to you this afternoon which is extremely dangerous and,
9 frankly, characteristic of the way in which the evidence has been
10 presented. He said to you that there was a list of targets for --
11 included within a KLA blacklist that he said was being circulated by the
12 KLA that included the name of Skender Kuqi. So could we look, please,
13 you have it behind tab 4 but could we bring it up on the screen. It's
15 Not very clear, I'm afraid, on the screen. Could we get a better
16 picture of the type side or not? No. All right. Well, Your Honours
17 have it in -- behind tab 4 in the bundle. Perhaps it's easier to read
18 from there. And Your Honours will see that there's a list of ten groups
19 of people, some of them individuals, some of them more than one, headed
20 as "Wanting [sic] or missing persons." So not a blacklist necessarily at
21 all, but -- I'm sorry? Not wanting. I see the transcript says
22 "wanting." It says "wanted or missing." That's the first point to note.
23 Secondly, you'll note that amongst those on the list is number 5, Zenun
24 Gashi. We'll come back to him later on. Number 8, two unnamed women
25 collaborators. So at least they were being identified on the basis that
1 they were potential collaborators even if the others were simply
2 identified as missing, and then 10, Skender Sali Kuqi from Luci Glava
4 Now, the first point I want to make point and it's an obvious one
5 that the mere fact that anybody within the KLA hierarchy such as it was
6 was looking for suspected collaborators is not evidence of any criminal
7 intent whatever. It's perfectly lawful in the situation of an internal
8 armed conflict to identify individuals collaborating within passing
9 information to the enemy and to detain them. It's only if they are after
10 being detained to be treated in a manner which is unlawful either by
11 killing or by torturing or otherwise ill-treating them that a crime is to
12 be inferred. That's the first point. So the fact that there may well
13 have been at various states an intention to identify people who had been
14 passing information to the Serbs that could in turn have led to the sort
15 of slaughter we saw at Prekaz or the sort of military attack we've seen
16 in these videos is not in itself an unlawful purpose and doesn't betoken
17 any joint criminal enterprise. But the most important thing about this
18 list is it wasn't a KLA list at all. That's why it's so dangerous to
19 take what the Prosecution says about its own evidence at face value
20 because the reality is, and we'll see this, I'm afraid, in copious detail
21 toward the end of my submissions, that the Prosecution don't seem to have
22 read the evidence from the first trial in any detail at all. This list
23 was concluded within the notebook of Witness 17. Witness 17 was the FARK
24 commander in Baran, and it was included in his notebook immediately under
25 a record establishing the names of the FARK military police that he had
1 just appointed. So this is a FARK list, not a KLA list. And I -- when
2 he gave evidence, I was cross-examining him about whether in fact these
3 people were being sought by the FARK military police, and his evidence
4 was he had no idea why he had recorded this list. But can we just look
5 at what he actually had to say about it.
6 JUDGE MOLOTO: Did he say why he had recorded it, or did he say
7 he had no idea who gave it to him.
8 MR. EMMERSON: Your Honours, I'm going to answer that question
9 just now by reference to the testimony that he gave which is behind tab 5
10 in transcript form, but we're going to play it to Your Honours.
11 Do we have a technical problem here? Volume.
12 [Video-clip played]
13 "JUDGE ORIE: You now come to the list, that's the last words.
14 I'm interested in the list, not in the appointment of police officers and
15 how this actually went on. So you said 'and the list.' Could you tell
16 us what this list was about then?
17 "THE WITNESS: [Interpretation] I made note of this list that was
18 offered to me by someone. I don't know who gave that list to me, but
19 there is a note of it in my notebook.
20 "JUDGE ORIE: Yes, but you would only write down especially if
21 you do it the next day any information that is relevant for you, isn't
23 "THE WITNESS: [Interpretation] I was not in a position to carry
24 out one activity and write at the same time. I took notes and then I
25 transcribed those notes in my official notebook on the next day or
1 whenever I had time to make these notes, and I did make note of the most
2 important events.
3 "JUDGE ORIE: Yes. There was not an event, but this is an
5 "THE WITNESS: [Interpretation] I really don't see the difference
6 between an event and the activity. I don't know what kind of activity
7 this could be.
8 "JUDGE ORIE: Well, looking for persons, as a matter of fact.
9 "Mr. Emmerson, please proceed
10 "MR. EMMERSON:
11 "Q. Just to be clear, Witness 17, who did you think was going to
12 go find them?
13 "A. I was not thinking about this at the time. I wasn't
14 preoccupied with this. My preoccupation was to create the brigade, to
15 find location, suitable location, and to form further structures.
16 "Q. But you did know, didn't you, that at least two of the
17 people on that list were being looked for on the grounds that they were
18 alleged to be collaborators, the two women mentioned at item 8?
19 "A. I made a note of the information the way it was served to
20 me, given to me by person.
21 "Q. Did you think there was anything improper about this list
22 that had been giving to you? Did you think, for example, it was evidence
23 of a plan to commit crimes?
24 "A. No, I didn't.
25 "Q. So can we take it then that you never took this list to
1 Ramush Haradinaj and said, 'Look, these men under my command are looking
2 for people'?
3 "A. No, I didn't. That's true. I didn't take it to him."
4 MR. EMMERSON: So another gem from the Prosecution case, a list
5 that is, in fact, not a KLA list but a FARK list. It's not a list
6 necessarily or of alleged collaborators but some people who are being
7 searched for, who are being searched for, if by anybody, by the FARK
8 produced by the leader of the FARK in Baran who doesn't know where it
9 came from or what its purpose with, who didn't think it was evidence of
10 anyone who intending to commit a crime and who never brought it to the
11 attention of Mr. Haradinaj.
12 JUDGE MOLOTO: Do you think you can slow down a little bit?
13 MR. EMMERSON: Yes.
14 JUDGE MOLOTO: The stenographer, I'm sure, is having difficulty
15 trying to keep up.
16 MR. EMMERSON: I'm nearly finished for the day.
17 So there it is, and, says Mr. Rogers, you can infer from that
18 that Ramush Haradinaj was party to a conspiracy to not only arrest but
19 detain Skender Kuqi and to ill-treat collaborators inside Jabllanice as
20 part of a joint criminal enterprise. It's nonsense, and it's typical,
21 frankly, of the unprofessional and sloppy approach that's been taken in
22 preparing the evidence and presenting it to Your Honours. You're going
23 to have to look very, very carefully, and I'm afraid the Trial Chamber's
24 legal assistants are going to have to look very, very carefully at every
25 single footnote in the Prosecution's closing brief because there is
1 barely one that is a fair reflection of the evidence that it purports to
2 summarise. And I shall give you a list at the close of my submissions of
3 particular areas where I regret to say the Trial Chambers are going to
4 have to focus. I make it clear at this point that I -- reading it
5 through, I'm not seeking to apportion blame as between the Prosecution
6 case, but, frankly, it has all the hallmarks of inexperienced junior
7 counsel making bad points on partial evidence rather than of leading
8 counsel having given their attention to the detail. But we'll look at
9 the list towards the end of my submission, but, frankly, you cannot take
10 anything, I regret to say, the Prosecution says about this evidence or
11 any of it at face value. They have given you entirely misleading
12 impression, so that's the wanted list. And that's the evidence about it.
13 What about Skender Kuqi? Can we look, please, at the evidence,
14 first of all, of Witness 80, which you'll find behind tab 6. This
15 section of transcript has to be in private session.
16 JUDGE MOLOTO: May the Chamber please move into private session.
17 [Private session]
11 Page 2850 redacted. Private session.
6 [Open session]
7 THE REGISTRAR: [Interpretation] Your Honours we're in open
9 JUDGE MOLOTO: Thank you so much.
10 Yes, Mr. Emmerson.
11 MR. EMMERSON: Your Honour, the evidence that I've just
12 summarised in closed session is wholly corroborated by the evidence of
13 Rrustem Tetaj from the first trial which has been admitted, and which,
14 in our submission, gives Your Honour a full flavour of Mr. Haradinaj's
15 intervention and not only contradicts the suggestion of a joint criminal
16 enterprise but gives you the kind of flavour of the man that you were
17 dealing with.
18 Can we please play the evidence of Rrustem Tetaj which is to be
19 found behind tab 6 and is P521. That will take us up to the end of
21 [Video-clip played]
22 MR. EMMERSON: No volume.
23 [Video-clip played]
24 "Q. In July 1998, did he come and tell you something about
25 Skender Kuqi?
1 MR. EMMERSON: [Microphone not activated]
2 JUDGE MOLOTO: Microphone. Microphone.
3 MR. EMMERSON: Sorry. The witness has just described how a
4 relative of Skender Kuqi's had come to him to tell him that Mr. Kuqi had
6 Can we go back to the beginning, please, and pick it up from
8 [Video-clip played]
9 "Q. In July 1998, did he come and tell you something about
10 Skender Kuqi?
11 "A. Yes.
12 "Q. What did he tell you?
13 "A. He came do my place and told me that Skender Kuqi has been
14 abducted by the KLA and he's being held in Jabllanice. I haven't seen
15 such a thing, but I took note of what he said, and I contacted
16 Faton Mehmetaj about this.
17 "Q. What did Faton Mehmetaj say?
18 "A. Faton Mehmetaj told me that I need to talk to
19 Ramush Haradinaj. I went to Ramush and told him what I was told, and he
20 had no knowledge of what I told him and together we went to Jabllanice.
21 "Q. Did you go and see Ramush before you went to Jabllanice?
22 "A. To Jabllanice, we went to the house of Nazmi Brahimaj.
23 "Q. Was that the local KLA headquarters or a different location?
24 "JUDGE ORIE: Mr. Re, I am a bit surprised by just -- your next
25 question. Your previous question was, 'Where did you go and see Ramush
1 before you went to Jabllanice?' And then the answer is, 'To Jabllanice,
2 we went to the house of Nazmi Brahimaj.'
3 "MR. RE: It was for time considerations I didn't pursue it.
4 It's not of great importance, that's why I didn't pursue it. But if
5 Your Honours want me to, I can go back and ask him where he saw --
6 "JUDGE ORIE: No, I'm a bit surprised. Now I better understand
7 that it was not of such relevance to pursue the matter. Please proceed.
8 "MR. RE:
9 "Q. Was that the KLA headquarters that you went to in
11 "A. With Ramush we went there. It was a house. It's called a
12 fort from our people there. It was the local staff which was based
14 "Q. Who did you see there, you and Ramush?
15 "A. Both with Ramush, we met Nazmi Brahimaj.
16 "Q. Did you speak to him?
17 "A. Yes. We spoke with him. We didn't have much time because
18 the situation on the ground was very serious, and Ramush told him that
19 this person should be released immediately and we returned.
20 "Q. Did Nazmi Brahimaj tell you, and Ramush, why this person
21 was -- was being -- why Skender Kuqi was being detained?
22 "A. Ramush Haradinaj knew nothing about it until the moment that
23 I told him, and immediately after that, Ramush gave him the ultimatum
24 that this person should be immediately released and he said no such thing
25 should happen any more because this is damaging our cause."
1 MR. EMMERSON: Thank you:
2 "Ramush Haradinaj knew nothing about it until the moment I told
3 him, and immediately after that, Ramush gave the ultimatum that this
4 person should be immediately release and he said no such thing should
5 happen any more because this is damaging our cause."
6 That's the Prosecution's allegation of joint criminal enterprise,
7 Your Honour.
8 JUDGE MOLOTO: Thank you, Mr. Emmerson. I suppose your body
9 language suggests we can adjourn for the day.
10 MR. EMMERSON: Yes.
11 JUDGE MOLOTO: Court adjourned until 9.00 tomorrow morning, same
13 --- Whereupon the hearing adjourned at 7.03 p.m.,
14 to be reconvened on Tuesday, the 26th day
15 of June, 2012, at 9.00 a.m.