1 Wednesday, 27 June 2012
2 [Defence Closing Statement]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.00 a.m.
6 JUDGE MOLOTO: Good morning to everyone in and around the
7 courtroom. Mr. Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. This is case
9 IT-04-84bis-T, the Prosecutor versus Ramush Haradinaj, Idriz Balaj, and
10 Lahi Brahimaj.
11 JUDGE MOLOTO: Thank you so much, Mr. Registrar. Could we have
12 appearances for the day, please, starting with the Prosecution.
13 MR. ROGERS: Good morning, Your Honours. Paul Rogers for the
14 Prosecution, together with Mr. Aditya Menon, Ms. Daniela Kravetz,
15 Ms. Barbara Goy, and our Case Manager today, Line Pedersen.
16 JUDGE MOLOTO: Thank you so much.
17 And for Mr. Haradinaj.
18 MR. DIXON: Good morning, Your Honours. On behalf of
19 Mr. Haradinaj, Rodney Dixon assisted by Andrew Strong and Annie O'Reilly.
20 JUDGE MOLOTO: Thank you so much.
21 For Mr. Balaj.
22 MR. GUY-SMITH: Good morning, Your Honours.
23 JUDGE MOLOTO: Good morning, Mr. Guy-Smith.
24 MR. GUY-SMITH: Ramon Barquero, our intern, who is with us for
25 the last time today. He is actually going to be catching a flight. He
1 has been with us for a short period of time. I want to thank him much
2 for the short period of time that he's been with us. He's been a great
3 help, but I wanted to at least acknowledge his presence and his help.
4 JUDGE MOLOTO: Thank you so much.
5 MR. GUY-SMITH: Gentian Zyberi, Holly Buchanan, Colleen Rohan, my
6 co-counsel, and I'm Gregor Guy-Smith representing Idriz Balaj.
7 JUDGE MOLOTO: Thank you so much.
8 And for Mr. Brahimaj.
9 MR. HARVEY: Good morning, Your Honours. Richard Harvey assisted
10 by Mr. Paul Troop, my co-counsel; Luke Boenisch, my Case Manager; and
11 Ms. Sylvie Kinabo, who is also having her last day with us as her intern
12 and she has also been of invaluable assistance for the entire period
13 she's been with us.
14 JUDGE MOLOTO: Thank you so much. Thank you.
15 Mr. Guy-Smith.
16 MR. GUY-SMITH: Thank you, Your Honours.
17 One of the themes that the Prosecution has asserted in its case
18 is that Idriz Balaj was always with Ramush Haradinaj and always at
19 meetings, and with regard at least to the meeting within Jabllanice, the
20 23rd of June, the 1st of July, and mid-July 1998, the exhibits relied on
21 do not support the contention made. For the 23rd June 1998 meeting, the
22 reliance is on P191, P192, which are minutes of those meetings. Balaj is
23 not listed as attending. For the July 1st meeting, which is P204, Balaj
24 is not listed as attending. For the mid-July meeting, which is with
25 regard to Zyrapi which is P159, T328, there is no mention of Balaj.
1 T3211 lists the people at the meeting, does not list Balaj as attending.
2 And at T3218, which is Zyrapi testimony of P159, there is the statement
3 the next day after the meeting in Jabllanice. He went to a meeting in
4 Irzniq and he met Balaj at that meeting. Hence it's an inference clearly
5 that can be drawn that he wasn't at the first meeting but attended the
6 second meeting, but there is mention at all of him with regard to the
7 first meeting that was discussed.
8 This Chamber has made a ruling with regard to the use of -- of
9 the testimony of Mr. Kabashi, which is that it must be independently
10 corroborated before it can have any weight. That was a ruling that was
11 made, I believe, on the 28th of September last year. I'm not going to
12 dwell on each and every of the assertions made, but only indicate for you
13 that in paragraphs 17, 18, 23, 25, 49, 87, 90, 117, 118, 159, 172, and
14 273, there is no corroboration for the assertions made.
15 Independent of whether or not there is, there still remains the
16 thorny question which was raised at the time and one this Chamber must
17 consider which is that he was not cross-examined. The evidence that he
18 gave in an another proceeding, another trial concerning distinct issues
19 was not information that was pertaining to or specifically germane to
20 this case and the failure of the ability to cross-examine the witness
21 claimed as critical, as Mr. Kabashi has been claimed, and it was one of
22 the reasons why we've had this retrial, in and of itself should give this
23 Chamber great pause for relying on any of his assertions or any of the
24 assertions that the Prosecution relies on for his evidence.
25 There's a fair amount of discussion in the Prosecution brief
1 concerning what I would call in a general sense victims of the KLA. And,
2 in large measure, one of the things that has occurred in this section is
3 that the Prosecution has identified an individual as being of a certain
4 ethnic background or of a certain political persuasion and thereafter
5 made the leap that by virtue of the fact that that's who they were, they
6 were being discriminated against or mistreated by the KLA. However,
7 that's not the case, and the cites relied upon do not support the
8 position taken.
9 For example, in paragraph 49, they cite to Witness 66, P107,
10 testimony 8413 and 8416. This is for the assertion that Roma, Egyptian,
11 Kosovar Albanians as many did not join the KLA and had good relations
12 with the Serbs and therefore must have been targeted by the KLA.
13 Witness 66's testimony in this regard describes as a background
14 and he describes the people who were alleged as victims in Count 1. He
15 does not testify about the KLA targeting Roma because they did not join
16 the KLA or because he or any of his family or any of his friends or
17 anyone who was Roma had good relations with the Serbs.
18 They cite to -- in the same paragraph to the notion that
19 Kosovo Albanians who did not want to fight against the Serbs were
20 victimised by the KLA. Cite to testimony of Avramovic P449 at T6602.
21 It's not what Avramovic testified to, did not testify the KLA victims
22 included Albanians who would not fight against the Serbs. His testimony
23 was rather that March, April and May of 1998 he heard from colleagues and
24 saw reports regarding people who had disappeared. These included Serbs
25 and non-Serbs. They included Kosovo Albanians who were loyal to the
1 state and did not want to fight the state. His testimony in the first
2 instance was [indiscernible] hearsay but more importantly makes no
3 reference at all to the KLA.
4 Now, in this case it's important to note I raise those with
5 trepidation, those words res judicata, because there were factual
6 findings made at the first trial that many of the victims attributed to
7 the KLA could not, in fact, be connected in any way to the KLA. Those
8 findings remain undisturbed.
9 It also is asserted that the supporters of the LDK were victims
10 and of course that is a centre-piece of the testimony of -- of Witness
11 6 -- Witness X's motivation -- motivations for his journeys back and
12 forth to Prishtina, because he was a member of the LDK, as well as his
13 perception that there was active dislike of the LDK by the KLA.
14 Interestingly, one of the documents relied upon is that of Mr. Stijovic,
15 P121, which is used for the proposition that the KLA attacked
16 "collaborators," but what is left out by the Prosecution is that in that
17 same statement, it says that in 1997, the LDK publicly stated it was
18 behind the KLA and supporting it, and that can be found at
19 paragraph 20(i).
20 There are a series of -- not a series. I apologise. There are
21 two Serb intelligence reports that are used for the proposition that
22 Catholic Kosovar Albanians who frequently did not support or join the KLA
23 and had good relations with the Serbs were targeted. We've already
24 discussed in previous argument the issue of the Serb intelligence
25 reports. These reports, which are P34 and P33, literally nothing is said
1 in either of those reports about the KLA targeting Catholics.
2 Excuse me for a moment. I attempted in the interest of time to
3 put the argument together even tighter and have to jump around in what I
4 had previously done.
5 I return now to the artful phrase that is used to define why you
6 should find Mr. Balaj guilty, unsubstantiated as I discussed before, but
7 I want to spend a moment with it again.
8 His manifest relish for violence as demonstrated by his fearsome
9 reputation is what Mr. Rogers told us on Monday, and in that regard, one
10 of the things that is cited in the brief and is alluded to as a basis for
11 establishing this fearsome reputation and the problems that he posed is
12 that Witness 17 complained to Ramush Haradinaj that he had to be kicked
13 out or disciplined for his bad behaviours, and that is to be found at
14 paragraph 33, footnote 119. And if one is to examine specifically what
15 was problem was, it goes like this: 17 is stopped by Balaj. He didn't
16 like it, and he says to Balaj when asked for identification, when asked
17 for proper documentation in order to pass:
18 "You self-declared commanders don't have good memories. I was
19 fully armed and in uniform. These are the permissions you are looking
21 And specifically in terms of the testimony with regard to the
22 asserted intimidation or concerns that he felt, he stated at pages 752
23 and 753 of the transcript:
24 "Initially, I tried to consider it as a joke, but when he
25 insisted that I reacted and I asked him whether he knew me, who I was, he
1 said, No, I don't know you. Then I showed him an automatic weapon and a
2 few hand grenades and I told him that I was the commander of a brigade,
3 and nobody could stop me from going to the military hospital to visit a
4 friend, and that is why I asked Ramush to either dismiss him or to
5 discipline him, because incidents like these could lead to greater
7 Reduced to its essence, this is not intimidation. This is a
8 professional military man, an older man, taking umbrage at some young
9 upstart, in his view, which he clearly was, some young upstart,
10 challenging his authority. Nothing more, nothing less, and does not
11 serve as a factual basis for the assertions made that Idriz Balaj was a
12 most notorious, brutal -- and had a relish for violence. As a matter of
13 fact, Witness 17, when pressed on the facts to substantiate such a claim,
14 had no such information.
15 It's been said in more than one culture, of course, that trying
16 to squash a rumour is like trying to catch the wind or water with a net,
17 and rumour or gossip without a leg to stand on would get around some
18 other way.
19 Going through the Prosecution's brief and listening to the
20 remarks that were made on Monday, we think it not unfair to say they're
21 attempting to establish Mr. Balaj's guilt based on bad reputation, which
22 itself is based on rumour and gossip. Bad reputation is not a substitute
23 for evidence. It certainly does not prove his guilt beyond a reasonable
25 In relying on this kind of thing, they follow at least three
1 improper paths. They violate the fundamental rule of fairness in
2 contravention of Article 21 that prohibits the use of such testimony.
3 They, as I said, attempt to establish the guilt of Mr. Balaj by innuendo
4 arising from gossip and not through testimony that is trustworthy or
5 reliable. And, thirdly, they leave him so painted with no means of
6 testing or challenging these unsourced assertions. For what is a rumour
7 but a cruel story on wheels, and every hand oils those wheels as they
8 run. It's like a virus. It has a viral nature and spins out of control.
9 It has been said about rumours over the years: Enemies carry a report
10 different in form than the original. What one invents, the rest enlarge,
11 expand, embellish. Such is the case here.
12 Rumour opens a veritable Pandora's box of irresponsible innuendo
13 and smear. It is not relevant evidence which in any respect proves a
14 particular fact. Of course, you understand, as well you should because
15 of where you sit, we're in a court law, not a coffee shop, not a bar, not
16 sitting at a table where any kind of remarks can be made. Rumours have
17 no role at all in a court of law, and the reputation as characterised by
18 the Prosecution as a basis for any finding whatsoever should be
19 disregarded in its entirety.
20 I wish to move on for a moment now to three witnesses,
21 Witness 81. He's been dispensed with and I will say no more.
22 Witness 75, returning to the guiding principle of reasonable
23 doubt, would you rely on his word? Now, Witness 75, he's a proven liar.
24 He lied about his brother. He used his brother's death to further a
25 fraudulent asylum application. In dealing with the most important
1 affairs, he has no compunctions. He has no concerns. He's willing to
2 use the corpse of his brother to achieve his own ends. And you're asked
3 to believe him, to rely on his testimony in deciding aspects of this
4 case. I suggest to you that's a dangerous proposition.
5 He claimed he saw Idriz Balaj at Jabllanice. The Prosecution
6 made no effort to verify his identification of Balaj. His mother didn't
7 corroborate this identification, and she was with him. They have not
8 approved his identification as reliable beyond a reasonable doubt, and
9 that is their burden. They have not met it, and they cannot meet it. In
10 any event, he certainly didn't ascribe any behaviour of any sort to the
11 man he thought he claimed was Balaj.
12 Witness 80. I've said before that he is either lying or has the
13 mental problems that he claimed in his attempt to evade this court for
14 years. His testimony's not trustworthy. It is not reliable. What he
15 says cannot be objectively considered to be true, and why do I say that?
16 Because in order to accept Witness 80 as a truthful witness, you
17 necessarily will have to reject the testimony from at least Witnesses 3,
18 6, 31, 28, 66, Ylber Haskaj and Rrustem Tetaj at a minimum. His evidence
19 is like a carton of sour milk. Once you take a sip, you don't have to
20 drink the rest of it. You know from one taste you've got a contaminated
21 product. Once you've tasted it, you don't know any more. You know what
22 to do with it.
23 As I said that in order to believe Witness 80, you have to reject
24 the testimony of others.
25 Going now to Count 1. You have to reject the testimony of
1 credible witnesses who told a coherent story, which he did not. He is
2 the only witness to claim the event like the ear cutting that took place.
3 He cannot name, and he did not name, a single individual other than
4 himself who saw this. It is impossible to corroborate his story.
5 And in looking at the issue of a witness's testimony, I suggest
6 to you there's some questions that you can ask yourself, questions that
7 are always asked. Is what the witness said internally consistent? Is
8 what the witness said consistent with the known facts of the case? Is
9 what the witness said consistent with what other witnesses have said,
10 other witnesses have independently testified to, and how plausible are
11 the statements made?
12 In paragraph 102 of the Prosecutor's brief, they say the
13 testimony given by Witness 3 and Witness 80 shows that three people were
14 arrested and mistreated in -- and I won't mention the village. That's
15 not correct. Witness 3 never testified to any such thing; 80 is the only
16 one who claimed he saw an arrest or beating or abduction as we discussed
17 yesterday. Remember something: This village was on alert because of the
18 situation at the time with the expectation of a Serbian attack. People
19 were on the road standing guard. There is no evidence at all that these
20 three people were targeted because they were Roma or Serb.
21 As I said to you earlier, paragraph 49 cites to Witness 66 for
22 such a proposition, and he never says that. There's been a lot of
23 discussion here about one of the elements you have to decide in a
24 criminal case, which is the "when." When did something happen? And here
25 is: When did this claimed ear cutting happen?
1 The last person who knew these three testified that they left
2 their village on 19 May at 9.30 in the morning. That was Witness 66. We
3 have addressed his testimony and the entirety of Count 1 in our
4 submissions at paragraphs 158 through 239.
5 We've heard testimony that Idriz Balaj was at Glodjan as of
6 May 14th, 2000 -- May 14, 1998, and there was a -- there was a Serb
7 offensive shortly thereafter in which the Black Eagles were engaged, and
8 we've heard testimony that he was in Glodjan by March.
9 To the extent that this gentleman, and by that I mean
10 Witness 80's testimony can be unsnarled, I think that we can say the
11 following that he claims: Between the 19th and the 21st of May, there
12 was -- there was fighting with the Serbs in his village. Thereafter, he
13 was in a -- and I don't know if we need to go into private session for
14 this or not to name the town.
15 JUDGE MOLOTO: I don't think there's any problem with naming the
17 MR. GUY-SMITH: Sorry?
18 JUDGE MOLOTO: I don't think there is any problem with --
22 Thereafter he's released. He stays in Jabllanice for some period of
23 time. We don't know how long. He then goes to Bucan for some period of
3 What we do know is this: Witness 6 - and this is undisputed by
4 all parties, everybody agrees. Witness 6 was in Jabllanice by the
5 13th of June. He never said anything at all about any ear cutting. And
6 if it happened after the 13th of June, taking -- taking stock with what
7 Mr. Rogers has said, which is the place is so small that anybody who was
8 there knew everything that was going on, certainly Witness 6 would have
9 seen it or heard it if it had occurred while he was there, and we know
10 that he was there from the 13th of June to the 25th of July.
11 So we're clear about something here. And this comes up in
12 another area as well, but at P44, which is the testimony of
13 Pekka Haverinen, dealing specifically with the issue of whether Witness 6
14 identified Witness 80 at pages 6342 --
15 JUDGE MOLOTO: You said P44 is the testimony of ...
16 MR. GUY-SMITH: Pekka Haverinen. It's a 92 -- I'm sorry. It's
17 92 -- it's Pekka Haverinen's testimony in 92 ter statement. And
18 Pekka Haverinen was an investigator for the OTP who went out and, among
19 other things, was involved in photographic identifications.
20 He was asked the following questions and he gives the following
21 answer about his encounter with Witness 6 specifically concerning the
22 issue of his awareness or knowledge of Witness 80. Page 6342:
23 "Q. And you asked Witness 6 about -- you gave him the name of
24 Witness --" it's a different name at the -- a witness's different number
25 at the time, "before you actually showed him a photograph, didn't you?
1 "A. It's possible, yes.
2 "Q. Now, that was a name that he hadn't given you, wasn't it?"
3 Now, if I'm not mistaken, this is probably a question that came
4 from Judge Orie.
5 "A. No he didn't give me that name, no.
6 "Q. And he didn't recognise the photograph either, did he?
7 "A. ... no, he didn't."
15 MR. ROGERS: Your Honours, just before Mr. Guy-Smith does, may we
16 briefly go into private session.
17 JUDGE MOLOTO: May the Chamber please move into private session.
18 MR. GUY-SMITH: I'm sorry, did I --
19 [Private session]
11 Pages 2963-2965 redacted. Private session.
4 [Open session]
5 THE REGISTRAR: Your Honours, we're back in open session.
6 JUDGE MOLOTO: Thank you so much, Mr. Registrar.
7 Yes, sir, Mr. Guy-Smith.
8 MR. GUY-SMITH: Suffice it to say that Witness 80 has claimed
9 that he was in Jabllanice and the ear cutting that he claimed occurred
10 occurred before the attack on (redacted), after the attack on (redacted)
11 (redacted), before he went to that other town, after he was arrested at that
12 town, (redacted).
13 I think I've covered all the times that he's claimed it occurred.
14 There is also a reasonable alternative explanation. That is the
15 one that has been previously adopted and formed the basis of an
16 acquittal, and that is that these people disappeared during the Serb
17 offensive. There's also another reasonable alternative explanation
18 that -- which is in reviewing and looking and giving the best
19 consideration you can to Witness 80's testimony, that the incident didn't
20 happen at all. And there's another reasonable alternative explanation
21 which is there is a high probability that Mr. Balaj, who was based on the
22 other side of the Dukagjin Zone, was engaged in battle elsewhere and not
23 involved at all if you can believe that the incident occurred.
24 Moving to Count 2. The evidence in Count 2 shows that on or
25 about the 20th of May, two men were taken by -- two armed and
1 uniformed -- two armed and uniformed men, those were Uke Rexhepaj and
2 Nezir Aljija [phoen], who were the people who were taken somewhere
3 between Grabanice and Dollovo. There is no evidence but armed forces, if
4 any, the two armed men were affiliated with who took these two. There's
5 no evidence of the cause of their death. Their remains have not been
6 recovered. They were never seen after the event. There is no evidence
7 that Balaj or anyone in the Black Eagles was involved or aware of this
8 incident before, during, or after. This matter's discussed in our brief
9 at paragraphs 240 to 263.
10 As to Counts 3 and 4 --
11 MR. ROGERS: I'm sorry. May we go into private session, I'm very
13 JUDGE MOLOTO: May the Chamber please move into private session.
14 [Private session]
11 Pages 2968-2969 redacted. Private session.
21 [Open session]
22 THE REGISTRAR: Your Honours, we're in open session. Thank you.
23 JUDGE MOLOTO: Thank you so much. Thank you.
24 Mr. Guy-Smith, you may proceed.
25 MR. GUY-SMITH: Thank you. Our submissions concerning Count 3
1 and Count 4 are covered in paragraphs 264 to 303 of our brief.
2 As to Count 3, briefly. Witness 6 made no identification of
3 Idriz Balaj as being present during the time that he was in Jabllanice.
4 He does -- did not discuss any involvement of Idriz Balaj or the presence
5 of Idriz Balaj in any of the things that occurred to him. Affirmative
6 evidence was received that he was shown a photo of Idriz Balaj on a photo
7 board and did not identify him as anyone he had ever seen in Jabllanice.
8 That's P45, paragraphs 8 and 9, paragraph 16, and the associated annex,
9 Annex 6. As I've said to you before, he was there from the 13th of June
10 and released the 25th of July.
11 Witness 6 learned the names of those responsible for his
12 mistreatment. He does not name Idriz Balaj. There's no indication of
13 the Black Eagles' involvement or Balaj's knowledge of the mistreatment of
14 Witness 6 at any time.
15 In the Prosecution's pre-trial brief, they say that by July 1998,
16 Haradinaj, Balaj, and Brahimaj, were at the Jabllanice facility on a
17 daily basis, and they cited to Witness 6's testimony as one source.
18 That's to be found in paragraph 20, footnote 97. This is an affirmative
19 misrepresentation of the record. He literally said he never saw Balaj
20 once. They have not corrected this contention and continued to press for
21 a conviction on this count.
22 Count 4. Count 4 deals with Nenad Remistar, and one Bosnian and
23 three Montenegrin men who show up at the end of June.
24 With regards to Count 4, these were the only people other than
25 Witness 6 who were there. There's no evidence as to what happened to
1 them. There's no evidence of their names, and by that I'm referring to
2 the Bosnian and three Montenegrins. There's no indication of any
3 Black Eagle involvement or Balaj's knowledge at any time, and there were
4 battles occurring in the other parts of the zone, according to Tetaj and
5 Haskaj, which involved the Black Eagles. Once again, as said before,
6 there are reasonable, plausible, alternative explanations with regard to
7 Mr. Balaj.
8 Count 5 -- I'm -- I'm reminded that they allege that the
9 Montenegrins were never seen again. We don't even know who they are. We
10 have no information at all who they were. They were never identified
11 whatsoever. So the assertion that they were never seen again is one that
12 has absolutely no forensic significance, because if you don't know, that
13 would be the "who," the who question in a criminal case. If you can't
14 answer the who question, you can't draw any kind of conclusions about
15 what happened with them.
16 Count 5. Witness 80 testified that he met Skender Kuqi and
17 offered to help him escape. Well, we know from Witness 3, who was a
18 named victim in the count, and Witness 6 that that can't be true. If it
19 was, they would have seen Witness 80 and could not have avoided seeing
20 him. As the Prosecution has now repeatedly said, this was a small place,
21 and Skender Kuqi was in the same room was Witness 3.
2 MR. ROGERS: I'm sorry, we have to go into private session.
3 JUDGE MOLOTO: May the Chamber --
4 MR. GUY-SMITH: Yes, we do have to go into private session. May
5 we move into private session.
6 JUDGE MOLOTO: May the Chamber please move into private session.
7 [Private session]
10 [Open session]
11 THE REGISTRAR: Your Honours, we're in open session.
12 JUDGE MOLOTO: Thank you so much.
13 Yes, Mr. Guy-Smith.
14 MR. GUY-SMITH: With regard to Pal Krasniqi, the evidence
15 established that he was at Jabllanice. He left Jabllanice, and his body
16 was thereafter found at the Lake Radoniq canal. He left Jabllanice in
17 July. His body was found in September.
18 There was another caution given in the first trial - that's the
19 judgement at paragraph 159 - and that occurred because of the extensive
20 testimony and battle over the death of a woman named Sanije Balaj. And
21 it was important because Sanije Balaj's body was similarly found at the
22 canal, and it was Prosecution's position that because her body was found
23 at the canal she was killed by the KLA.
24 So what the Trial Chamber says with regard to that, and I suggest
25 the same caution applies here concerning the discovery of a body at
1 Radoniq. This is paragraph 159.
2 The Trial Chamber has received extensive evidence in particular
3 about the perpetrators and circumstances surrounding the death of only
4 one of the alleged murders, namely that of Sanije Balaj. The case of
5 this victim demonstrates the level of caution which the Trial Chamber
6 should proceed when considering inferences as to the responsibility on
7 the mere basis of the disappearance or abduction of a person and the
8 discovery of the body of that person in the Radoniq canal area.
9 As the Trial Chamber will discuss below, a reasonable alternative
10 to KLA involvement in the alleged murder is that Sanije Balaj was
11 targeted by people who were not acting under the direction of or in
12 pursuit of the KLA's policies and that she therefore was not killed in
13 KLA custody.
14 Pal Krasniqi left Jabllanice around the 25th of July. His body
15 was found in September. We have information that there were -- the wars
16 and battles were waged throughout the area. A reasonable alternative --
17 JUDGE MOLOTO: Can you cite us to the evidence where it shows
18 that he left on the 25th of July?
19 MR. GUY-SMITH: On the 25th of July? Yes, I'll get the cite for
21 JUDGE MOLOTO: Thank you so much.
22 MR. GUY-SMITH: I am corrected. I am told that he -- that
23 Witness 6 left on the 25th and that Pal was still there and he was
24 improving physically. So I retract -- I retract the assertion that he
25 left on the 25th.
1 JUDGE MOLOTO: Thank you, Mr. Guy-Smith. Are you able to -- are
2 you able to tell us what became of him?
3 MR. GUY-SMITH: No. No. But we know that -- we know that his
4 body was found in the Lake Radoniq canal area in September. That's what
5 I can tell you. I think that Mr. Harvey may be attending this issue in
6 his argument. And the Serbs overran -- overran Jabllanice on the
7 2nd of August, but Mr. Harvey, I'm sure, will attend to that.
8 Count 6. Now, before we start Count 6, I want to get some rules
9 of the road here, because I'm going to be discussing Fadil -- I'm going
10 to be discussing the named victims in Count 6 who are -- who can either
11 be called.
12 JUDGE MOLOTO: Do you want to move into private? We can move
13 into private session.
14 MR. GUY-SMITH: Do I want to? No. But perhaps we should.
15 JUDGE MOLOTO: Well, let's move into private session, please.
16 [Private session]
11 Page 2977 redacted. Private session.
2 [Open session]
3 THE REGISTRAR: Your Honours, we're in open session.
4 MR. GUY-SMITH: Yes. For purposes of informing the public of
5 what is occurring, by virtue of the discussions just had in private
6 session, we will be discussing the last count of the indictment, Count 6,
7 and that will be in private session based upon those discussions that
8 have been had.
9 Could we move back into private session.
10 JUDGE MOLOTO: Before we do that, can we give the Chamber a
12 [Trial Chamber confers]
13 JUDGE MOLOTO: May I Chamber please move into private session.
14 [Private session]
6 [Open session]
7 THE REGISTRAR: Your Honours, we're in open session. Thank you.
8 JUDGE MOLOTO: Thank you so much. Can you now say on the record
9 that we are going to deal with Count 6 in open session.
10 MR. GUY-SMITH: I am definitely going to say that, Your Honour.
11 JUDGE MOLOTO: Thank you so much.
12 MR. GUY-SMITH: After further discussions, we are now going to
13 deal with Count 6 in open session, and I thank all the parties for their
14 consideration and analysis in allowing us to do so.
15 Jabllanice, as the Prosecution has said, is a tiny place where
16 everyone would know what is going on as regards to those who were
17 actually there, that being Witness 3 and Witness 6. Concerning Count 6,
18 they never testified to seeing Naser Lika or Fadil Fazliu as claimed by
19 Witness 80 were there.
20 Witness 80 says after an arrest there were 20 to 30 villages
21 [sic] at Jabllanice. At that time, Witness 80 says that Fadil Fazliu was
22 beaten and that Naser Lika was not beaten.
23 With regard to that assertion, there is no evidence of personal
24 commission by Mr. Balaj of anything. There is no evidence of aiding and
25 abetting by Idriz Balaj. There is no evidence in terms of the testimony
1 that was given of cruel treatment of Fazliu. There is no evidence of
2 torture of Fazliu. There is no evidence of cruel treatment of
3 Naser Lika. And there is no evidence of torture of Naser Lika concerning
4 the incident, assuming this is when something happened, and there were
5 20 to 30 villagers the Jabllanice.
10 (redacted). And with
11 regard to that statement, Witness 80 said that when he said it to
12 Naser Lika, he said it not only in Naser Lika's presence but also in the
13 presence of many other people.
14 And of course remember that if that occurred, this has to be in
15 July, but that is if you believe Witness 80's recount of what happened to
16 Naser Lika. You've got to reject once again the testimony of Witness 3
17 and Witness 6. You have no choice.
18 You also have to, as indicated earlier, reject the testimony and
19 the reasonable explanation with regard to the issue of battles that was
20 testified to by Rrustem Tetaj and Ylber Haskaj.
21 Now, neither Witness 3 or Witness 6 as claimed by Witness 80's
22 accounting said there were many other people there, and neither Witness 3
23 or Witness 6 said that they saw Naser Lika there as Witness 80 testified.
24 Witness 6 worked in the kitchen.
25 JUDGE MOLOTO: Did he see Fadil Fazliu?
1 MR. GUY-SMITH: No, he did not. Witness 6 worked in the kitchen.
2 The Prosecution has argued that Witness 6 failed to identify Naser Lika
3 and Fadil Fazliu because of the passage of time and because Jabllanice
4 was so crowded.
5 Well, first of all, Witness 6 had no problem at all identifying
6 Gani Brahimaj, and you can find that at trial testimony pages 5219, 5233,
7 5236, 5240, and which among other things he testifies not only about
8 working with Gani Brahimaj in the kitchen - Gani Brahimaj, I believe,
9 baking bread - but also that he and Gani Brahimaj were witnessing the
10 escape of Skender Kuqi and Witness 3, and Gani Brahimaj ran after them.
11 There is no testimony at all from Witness 6 that the area where
12 he was detained was crowded as suggested by the Prosecution as a basis
13 for there not being any identification by him. And, as a matter of fact,
14 Witness 6, as previously discussed, testified that there were few people
15 there, and by the time that he left the only other prisoner was there was
16 Pal Krasniqi. And as I've said before, neither Witness 3 or Witness 6
17 testified that they ever saw Idriz Balaj in Jabllanice.
18 I suggest with regard to much of this evidence we run afoul of --
19 or not really run afoul, but are suffering from the problem of we want
20 the facts to fit the preconceptions, is what the Prosecution wants, and
21 when they don't, it's easier to ignore the facts than to change the
23 The fact that the Prosecution did not call their own named victim
24 in this count, we suggest, allows the Chamber to draw the reasonable
25 inference that that named victim, and now I am referring to -- I think we
1 better go into private session.
2 JUDGE MOLOTO: [Microphone not activated]
3 MR. GUY-SMITH: Okay. That name. That named victim --
4 JUDGE MOLOTO: Fadil Fazliu.
5 MR. GUY-SMITH: Fadil Fazliu. You're right. Now I'm being
6 overly cautious. Would -- because Fadil Fazliu would not have supported
7 and would have contradicted the assertion made and the testimony of
8 Witness 80 as to what occurred.
9 The fact that a conviction is sought at all concerning
10 Fadil Fazliu in light of the history of this case and in light of the
11 obligations that the Prosecution had, that I talked about at the
12 beginning of this case to see that justice is done, and not to obtain a
13 conviction by improper methods coupled with their own specific guidelines
14 here in terms of the kinds of information that are to be presented to the
15 fact-finder, is shameful.
16 If you -- if you wish to --
17 JUDGE MOLOTO: When you find a convenient moment, do say.
18 MR. GUY-SMITH: Give me one minute. I'll just get through this
19 one part.
20 If you wish to accept the Prosecution's invitation to engage in
21 the speculation and conjecture with regard to Fadil Fazliu, then we're
22 still left with the fundamental absence of evidence for any claim of
23 cruel treatment or torture of him. There's absolutely no evidence of
24 that. We suggest to you that there's no evidence whatsoever but there is
25 certainly no evidence of that if you wish to accept any of the testimony
1 with regard to what occurred by Witness 80.
2 And if I'm not mistaken, according to Witness 80, the beating of
3 Fadil Fazliu took place in front of a number of villagers. That would be
4 20 to 30. There's no evidence corroborating this claim. Why? Because
5 it didn't happen. In total absence of evidence, how can we seek -- how
6 do they seek and how could you find a conviction for either cruel
7 treatment or torture of Fadil Fazliu? And in the OTP's brief, they
8 specifically discuss issues with regard to Fadil Fazliu at paragraph 67,
9 87, 188, 196, 197, and 208.
10 If this would be a convenient moment.
11 JUDGE MOLOTO: We will --
12 MR. ROGERS: Before we rise, Your Honours, may we just go into
13 private session.
14 JUDGE MOLOTO: May the Chamber please move into private session.
15 [Private session]
11 Page 2984 redacted. Private session.
1 [Open session]
2 THE REGISTRAR: Your Honours, we're in open session.
3 JUDGE MOLOTO: Thank you so much. We'll take a break and come
4 back at quarter to. Court adjourned.
5 --- Recess taken at 10.20 a.m.
6 --- On resuming at 10.46 a.m.
7 JUDGE MOLOTO: Mr. Guy-Smith, there's a request that you try to
8 speak as close as you possibly can to the microphone and as loud as you
10 MR. GUY-SMITH: Yes.
11 JUDGE MOLOTO: Thank you. But you're still far from the
12 microphone. Thank you so much.
13 MR. GUY-SMITH: I concern myself with speaking too close to the
14 microphone because of the experience of the papers hitting the microphone
15 and then I get yelled at for doing that. And I recall when I first
16 started practising law that my mother used to scold me for dropping my
17 voice. So I apparently have been doing it again. So it's a point well
18 taken and one that's been haunting me for many, many nears.
19 JUDGE MOLOTO: Thank you.
20 MR. GUY-SMITH: I, first of all, want to make sure that something
21 is clear, because I -- I made a misstatement. I don't want to
22 mischaracterise anything whatsoever. For the purpose of my argument, I
23 want to be very clear about what our position is and what the evidence
24 has shown with regard to the issue of Pal Krasniqi which you had asked me
1 To clarify, regarding Pal Krasniqi, Witness 6 left Jabllanice on
2 the 25th of July. At that time, Pal Krasniqi was the only detainee at
3 Jabllanice. (redacted)
11 (redacted). Which is in direct contradiction, obviously, to
12 Witness 6's testimony, because as far as Witness 6 was concerned, the
13 only person there apart from himself, that being Witness 6, was
14 Pal Krasniqi. So Witness 80 couldn't have been there if we are to
15 believe Witness 6.
16 JUDGE MOLOTO: Can we move into private session.
17 [Private session]
4 [Open session]
5 JUDGE MOLOTO: And --
6 MR. GUY-SMITH: As -- as suggested --
7 JUDGE MOLOTO: Sorry, let's deal with open session.
8 THE REGISTRAR: Your Honours, we're back in open session.
9 JUDGE MOLOTO: Thank you so much. You were saying, as suggested?
10 MR. GUY-SMITH: As suggested for purposes of clarification, the
11 testimony from Witness 80 that Naser Lika was present in Jabllanice and
12 escapes at the time of the Serb offensive in August simply cannot be the
13 case, and that is by virtue of Witness 6's testimony. Witness 6 made it
14 very clear that at the time that he left Jabllanice on the 25th of July,
15 the only person who was there was Pal Krasniqi.
16 MR. ROGERS: Your Honours, sorry, private session, please.
17 JUDGE MOLOTO: May the Chamber please move into private session.
18 [Private session]
16 [Open session]
17 THE REGISTRAR: Your Honours, we're in open session.
18 JUDGE MOLOTO: If you stick to my advice you will never need to
19 worry about this.
20 THE REGISTRAR: Your Honours, we're back in open session.
21 JUDGE MOLOTO: Thank you. Thank you very much, Mr. Registrar.
22 Yes, Mr. Guy-Smith.
23 MR. GUY-SMITH: Yes. Over the years I've tried to do that to the
24 best of my abilities.
25 In paragraph 234, of the Prosecution brief they take the position
1 that Balaj held a position of authority and influence within, and I
2 emphasise the word "within" the detention facility. There's no evidence
3 of this. None whatsoever. As a matter of fact, the evidence is to the
5 In order to find the joint criminal enterprise that has been
6 suggested by the Prosecution, you have to find a common plan. There is
7 no basis to infer a common plan on the evidence that has been presented
8 to you in this case. Again, quite to the contrary.
12 This is getting too difficult. Can we go into private session.
13 JUDGE MOLOTO: Can we please go into private session.
14 [Private session]
11 Page 2990 redacted. Private session.
23 [Open session]
24 THE REGISTRAR: Your Honours, we're in open session. Thank you.
25 JUDGE MOLOTO: Thank you so much.
1 Yes, Mr. Guy-Smith.
2 MR. GUY-SMITH: Could -- as I said, you know the transcripts, the
3 judgement of the first trial, the testimony and photographs of each of
4 these gentlemen have been available in the public domain and on the
5 internet for years. We have received information and testimony that a
6 number of the witnesses who have testified in this case, who we suggest
7 to you their testimony is indeed at best suspect, were aware of previous
8 proceedings, were aware of individuals testifying either because they
9 specifically researched the information or had family members or others
10 discuss the information with them.
11 This is not an uncommon or unique experience, actually, in the
12 annals of the history of criminal law. In 1989, in California, a
13 jailhouse informant was able to demonstrate with the use of a telephone
14 that he was able to obtain sufficient information from a number of
15 different places, including the corner's office, the district attorney's
16 office, newspapers, enough information, that coupled with getting into
17 the same cell as an accused or taking a ride with an accused was
18 sufficient for him to testify in a trial that the accused had confessed
19 to him. So the acquisition of the information is not something which is
21 In 1998, in a report concerning informers as said by the
22 honourable Fred Kaufman which is not precisely our situation but is
23 definitely comparable to it: Since these witnesses were motivated by
24 self-interest and unconstrained by morality, they were as likely to lie
25 as to tell the truth depending on where their perceived self-interest
1 lay. Their claim, referring to a specific case, that M confessed to May
2 was easy to make and virtually impossible to disprove. These facts taken
3 together were ready recipe for disaster. The systemic evidence presented
4 during phase 6 of the inquiry emanating from Canada, Great Britain,
5 Australia and the United States demonstrated to me that these dangers
6 were not unique to the M case. Indeed, a number of miscarriages of
7 justice throughout the world are likely explained, at least in part, by
8 false self-serving evidence.
9 And we suggest to you that that is precisely what occurred here,
10 as precisely what occurred here, with regard to a number of witnesses not
11 the least of which obviously would be Witness 80.
12 Finally, reference was made on Monday that some of these
13 witnesses sacrificed their safety on the altar of integrity and truth,
14 and if I understood Mr. Rogers' argument, he alluded to decisions made on
15 protective measures as a basis for you to make a determination about
16 their credibility and reliability. We suggest to you, first of all, that
17 there is no connection whatsoever between the two. And, secondly, if in
18 doing so he was making a reference to ex parte filings or representations
19 made in ex parte filings for a factor to rely on such allegations that
20 we've had no -- the accused have had no access to and have never been
21 able to substantively challenge whatsoever would violate all legal known
23 Enough. I deliver Mr. Balaj into your hands and trust that you
24 will, after full and fair consideration of the evidence presented, find
25 him not guilty on all counts. I thank you for your time.
1 JUDGE MOLOTO: Thank you, Mr. Guy-Smith.
2 Yes, Mr. Harvey.
3 MR. GUY-SMITH: And if we could have but a moment so I could help
4 Mr. Harvey with the podium.
5 JUDGE MOLOTO: Mr. Harvey.
6 MR. HARVEY: Finally, the moment we've all been waiting for.
7 JUDGE MOLOTO: Thank you so much.
8 MR. HARVEY: Your Honours, it is commonly said that: "In war,
9 truth is the first casualty." I rather prefer Dr. Samuel Johnson's
11 "Among the calamities of war may be justly numbered the
12 diminution of the love of truth, by the falsehoods which interest
13 dictates and credulity encourages."
14 "Interests" here means bias, self-advancement. "Credulity"
15 means lack of objectivity and willingness to believe, a lowering of the
16 standards which fair-minded people apply to information of doubtful
18 So a diminution of the love of truth by the falsehoods which
19 interest dictates and credulity encourages. That expression is
20 absolutely on point here where those witnesses upon whom the Prosecution
21 most heavily relies have been shown to be full of the falsehoods which
22 interests dictate, and the Prosecution's final brief, indeed its whole
23 case, is based on encouraging credulity rather than the strict and
24 time-honoured test of proof and certainty beyond reasonable doubt.
25 On behalf of Mr. Brahimaj, I adopt much of what Mr. Emmerson and
1 Mr. Guy-Smith have said in relation to the law, the standard of proof,
2 the burden of truth, and many of the facts, such as they are, in this
3 case. So my address to you is shorter than it would otherwise have been,
4 but there is ground I must cover out of concern for my client and out of
5 concern for a proper evaluation of the case against him on the four
6 counts before -- that he faces before you. I'll try to avoid repetition,
7 but I will have to go over some of the same ground.
8 By way of example, I did not take Mr. Emmerson to be holding out
9 Witness 80 as a witness of truth, merely saying that even Witness 80,
10 with all of his many falsehoods, had nothing to say to Mr. Haradinaj's
11 detriment, and so obviously he would, to that extent, adopt much of what
12 he said in relation to his client. Each of us has a different case to
14 The first duty of a responsible Prosecutor, we say, is, or it
15 should be, to seek out truthful and reliable witnesses who can present
16 evidence upon which a Tribunal can safely rely. They have manifestly
17 failed to discharge that duty.
18 The first duty of a war crimes Tribunal is to rescue truth from
19 the casualty list, to restore it to its rightful place in the courtroom,
20 to rigorously uphold the time-honoured standard of proof beyond a
21 reasonable doubt and to steadfastly reject any invitation to lower that
22 standard. As we shall see and as we have already seen, in the search for
23 proof beyond reasonable doubt, the Prosecution case and its own attempts
24 to debase that standard will be of very little help to you, we submit.
25 I adopt what Mr. Guy-Smith said a few moments ago about quoting
1 Justice Kaufman. The claims that are easy to make and virtually
2 impossible to disprove. We all know that that is why the burden of proof
3 lies with the Prosecution, and in a case of the kind of evidence that you
4 have heard, it's all the more important that it should do so.
5 One of the classic techniques of war propaganda is the big lie.
6 Its effectiveness resides in its simplicity, in its seductiveness and in
7 the drip, drip, drip, of its frequent repetition, and we have heard that
8 here. We have constantly heard of the climate of fear. We are told that
9 the witnesses are frightened to testify. They fear for their lives, for
10 their families, and there is a seductiveness in this. There is a risk
11 that we will be seduced into believing because we all rightly share a
12 concern for genuinely innocent victims, for the oppressed. And you've
13 probably had the same experience that I have with colleagues saying to me
14 in other jurisdictions, Oh, you're doing that case, the Kosovo case.
15 That's the one where they killed all the witnesses isn't it? Where does
16 this come from? This is the drip, drip, drip, of rumour. There have
17 been times during this retrial where out of an abundance of caution the
18 Trial Chamber has been compelled to redact large swathes of evidence thus
19 shielding the Prosecution case from being exposed to the public gaze in
20 all its threadbare weakness.
21 When my son was growing up in New York I used to sit and watch a
22 children's fairy-tale programme with him every morning called
23 Mr. Rogers' Neighbourhood. For much of this retrial, we have had to
24 speak in witness numbers, to redact villages named in the indictment, and
25 it must seem to the outside world as if we are living in some kind of an
1 fairy-tale world. Well, it's time to leave Mr. Rogers' Neighbourhood.
2 It's time to expose the fairy-tales expunged by these witnesses. You've
3 finally see them in this retrial. You've seen Witness 3 redux, you've
4 seen Witness 75, Witness 80, and Witness 81. Manipulative, dishonest,
5 self-interested. Their testimony is shot through with the falsehoods
6 which interest dictates. Not a frightened man among this happy group of
7 people. Each and every one of whom has managed to get themselves and
8 their families enormous benefits by testifying for the OTP.
9 You've heard the rumours of the water-filled basement filled with
10 salt, barbed wire. Imagine three whole days. Doesn't it sound like
11 something of a Sylvester Stallone or Jean-Claude van Damme movie? It
12 sounds like fantasy and that's what it is. You heard of a sliced off ear
13 floating like a butterfly until it lies fluttering in the dust. Graphic,
14 powerful, but physically impossible image. It comes out of a nightmare,
15 a painting by Salvador Dali or a surrealist film by Luis Bunuel or
16 David Lynch. Again, it rightly belongs in the world of dreams but not
18 And you've heard that the KLA targeted Serbs, Roma, Montenegrins,
19 power plant workers, Catholics, LDK supporters, PDK supporters, what
20 next? Seventh-Day Adventists, Zen Buddhists?
21 This has not been a retail in the way in which one normally
22 expects a retrial to take place. Again, when you say to colleagues, Oh,
23 we're doing a retrial. Oh, so you won the appeal? No, we lost the
24 appeal. Oh. It's not a retrial where due to a miscarriage of justice
25 the whole case has to be tried again. Here you have had testimony
1 admitted from witnesses who testified but whom you have been prevented
2 from seeing and evaluating with your own eyes. Just by way of example,
3 if I wanted to show you as Mr. Emmerson yesterday showed you or the day
4 before yesterday, I think, showed you some witness clips, if I wanted to
5 show you Witness 6, I couldn't do so because he was granted face
6 distortion, and therefore even in the privacy of your Chamber the images
7 don't exist for you to look at his face, to look at body language, to
8 evaluate for yourselves, Is this a witness whom we would rely on. All
9 you can go by is the fact that previous Trial Chamber relied upon him to
10 convict my client on one count.
11 In the first trial the focus was the whole Dukagjin Zone. There
12 was, in fact, relatively little evidence, very little time spent in that
13 trial on Jabllanice, and the OTP never put forward alternative theories
14 of the case in the glib way that have been done here. I refer to
15 paragraph 243 of the Prosecution's brief. And that is the one in which
16 perhaps for the sake of convenience I should pull it up. It's the one in
17 which they say essentially, Well, if you can't convict Haradinaj, you can
18 convict Balaj and Brahimaj. If you can't convict Balaj and Brahimaj,
19 well, you can convict Brahimaj based on the fact that there were other
20 Brahimajs who we say were acting in concert, the joint criminal
21 enterprise theory. These alternative theories are new in this case.
22 Okay. They're entitled to do that. But as I say, this is not a retrial
23 in the way in which that term is normally understood.
24 There's an invitation to this Trial Chamber which we are sure you
25 will not accept. We are confident that the way in which the OTP has
1 pleaded their case you will find is not to the standard demanded of a
2 Prosecutor serving the interests of justice. In this case, the entire
3 focus has been on Jabllanice, and the Prosecution is put to the strict
4 proof that everything they claim happened at Jabllanice was aimed at
5 establishing total control of the Dukagjin Zone. So not simply whether
6 or not certain things actually happened there, but what was the aim of
8 You have heard very little direct evidence about Kosovo in
9 general. The Dukagjin Zone, broadly speaking, and instead the microscope
10 has been homed in on this tiny village. It's a bit like what happens
11 when a witness accidentally touches the screen in front of him and it
12 zooms into an unrecognisable blur. There's the danger that this case
13 will be taken completely out of proportion because of this microscopic
14 focus. But it is a danger, again, that we are confident you will not
15 fall victim to.
16 Now all the evidence is in. What it comes down to is this:
17 First, you cannot trust the Prosecution witnesses whom you have seen; and
18 secondly, you cannot trust the Prosecution to interpret accurately the
19 witnesses whom you haven't seen.
20 In their Prosecution brief at paragraph 44, they accept that the
21 KLA were fighting a legitimate war of national liberation, and like any
22 liberation movement fighting against military domination, foreign
23 military donation and ethnic repression, they were entitled to use armed
24 force, entitled to attack their oppressors, and entitled to defend
25 themselves against those acts of oppression of which you've heard and
1 which certainly in the first trial Colonel Crosland testified to in quite
2 some detail.
3 Here the OTP refuses to accept, however, the practical realities
4 of what a war of national liberation must entail. For example, they
5 criticise Haradinaj for requiring travel authorisations for movement
6 between villages. That's at paragraph 261 of their brief.
7 Well, why on earth wouldn't you want to know who was moving
8 between villages?
9 Paragraph 225: They criticise the KLA for requiring that
10 collaborators be reported. What are you supposed to do in any war, let
11 alone a guerrilla conflict, ignore the fact that you have collaborators
12 in your midst? No.
13 They criticise targeting perceived opponents. Whom exactly do
14 they suggest should be targeted then? I refer to paragraphs 226 and 262.
15 The reality is you have heard testimony from Bislim Zyrapi, from
16 Jakup Krasniqi and from others. There were acute difficulties of travel
17 and communication throughout this period. You have heard that at this
18 time with which you are concerned, the indictment period, the KLA was a
19 nascent organisation, and, to some extent, an inchoate organisation, that
20 it was a horizontal structure of command and not a great deal of command
21 at all, testified to by Cufe Krasniqi and Colonel Crosland, among many
23 And I think a very good point was made by Mr. Emmerson in
24 relation to the fierce independence of little villages, and essentially
25 that's all we're talking about. A lot of little villages during this
1 indictment period coming together in self-defence, coming together to try
2 to keep the Serbs out during the major offences launched, particularly in
3 May, and those are village organisations, the local village head man, the
4 local villagers meeting in their oda, and just as Skender Rexhahmetaj and
5 Bislim Zyrapi said in response to Mr. Emmerson's questions, the idea, the
6 very idea that the Haradinajs could tell the Brahimajs what to do or vice
7 versa, the very idea that the villages of Jabllanice could walk into the
8 village of Grabanica and say, This is what you're going to do. It
9 doesn't pass the laugh test, but the Prosecution ask you to take it
11 Paragraph 56 of the Prosecution brief, they cite Zoran Stijovic.
12 Again, Mr. Emmerson has done a fairly thorough demolition job on
13 Zoran Stijovic, but I have a few more words to say.
14 He was the MUP inspector. He was the head of the section for
15 analysis and documentation of state security. He was, in short, a spook,
16 a person who gathers "intelligence" by the sort of methods Mr. Guy-Smith
17 has described. A blackmailer at best whose testimony was dripping with
18 loathing for the KLA. We invite you to revisit his testimony in detail
19 and to remind yourselves of how many times the Trial Chamber had to
20 intervene to remind him to answer the question and not just keep
21 launching into yet another prolonged diatribe against the KLA. His bias,
22 his malice, were clear for all to see.
23 The OTP called him apparently hoping to bolster their claim that
24 during the indictment period the accused jointly operated a policy and
25 practice of launching attacks on civilians or supposed collaborators.
1 When you actually check, as both Mr. Emmerson and Mr. Guy-Smith have
2 asked you to, and I join in that, when you check the slippery and
3 misleading footnotes to the OTP's brief, you find, in fact, that every
4 single one of those cases cited by Mr. Stijovic in support of his claim
5 that innocent individuals were being targeted, every single one of them
6 falls outside the indictment period. Not one of them has any connection
7 with Jabllanice, and not one of them is connected in any way with any of
8 the accused or other alleged members of the alleged JCE.
9 At paragraphs 54 and 57 of the Prosecution brief, they cite KLA
10 attacks on heavily armed police paramilitary forces as if they were aimed
11 at the harmless unarmed bobby standing outside the Old Bailey. This is
12 not the real world. Colonel Crosland and numerous other witnesses in the
13 first trial gave clear and compelling testimony about the true nature of
14 the heavily militarised Serbian police force, the extent to which it was
15 integrated into Serbian war against the Kosovo Liberation Army and how
16 out of control many of those Serbian police and their undisciplined
17 paramilitary auxiliaries were. There is not the unarmed bobby on the
19 At paragraph 76 the OTP say in their brief that by July 1998, DB
20 intelligence, that reliable and impartial source, "strongly indicated"
21 that members of the KLA in the Dukagjin Zone had kidnapped and killed
22 Serbs, Roma, and Albanians who refused to join the KLA. Is this the new
23 standard of proof strongly indicated, Serbian intelligence, unsourced
24 hearsay, evidence obtained by torture? From the most biased commentator
25 imaginable. It is a strong indication, we say, of how weak the OTP case
2 Where might you expect to find the hard evidence that KLA forces
3 in the Dukagjin Zone generally, and in Jabllanice particularly, had the
4 intention to set up a detention centre, however makeshift, or a plan to
5 murder, torture, and mistreat Serb civilians, Catholics, Roma,
6 Montenegrins, power supply workers, and all the rest? You would surely
7 expect that if any such plan of any type were to exist, you would find it
8 in the records held of meetings on June the 21st, 23rd, 24th, and you
9 have those meetings and they're quite thoroughly and fully documented.
10 People's organisational responsibilities are set out, but it's not there.
11 These are exhibits P190, 191, 192, 195. There is nothing like it to be
12 found in those exhibits. Still less is there anything in those minutes
13 to suggest that Lahi Brahimaj was in charge of dealing with collaborators
14 or that Jabllanice was the place where this was to be done. It's not
15 there anywhere and I'll come back -- I'll move on to the opposite, which
16 actually comes out of these documents.
17 Lahi Brahimaj is appointed deputy head of the Dukagjin Zone on
18 June 23rd, but within days it becomes clear that this is a mistake. This
19 is a job that he is not in a position to undertake because he's not even
20 there. I refer you to Exhibit P218.
21 He is not there, and he is dismissed by Mr. Haradinaj after a
22 meeting on July 1st where it's said that Mr. Brahimaj is going to have to
23 be reprimanded for failing to fulfil his duties and attend meetings after
24 a warning issued on July 4th, and then a prompt termination on July 5th
25 where Mr. Lahi Brahimaj is replaced by Mr. Nazmi Brahimaj as deputy
1 commander of the Dukagjin Zone. The question is: Where is Lahi?
2 Once again you have the drip, drip, drip of constant repetition.
3 It must have been Lahi Brahimaj who was responsible for everything that
4 happened or is alleged to have happened in Jabllanice. Why? Why must it
5 be Lahi Brahimaj? Who sign the documents warning Witness 6 that any
6 further misconduct on his part would result in punishment? Not
7 Lahi Brahimaj. That was Nazmi on the 25th of July.
8 Who was it whom Rrustem Tetaj and Ramush Haradinaj met when they
9 went to Jabllanice to see what had happened with Skender Kuqi? Even
10 Mr. Emmerson on Monday mistakenly said at what was then page 65,
11 line 4 -- even he mistakenly said that it was Lahi, but in fact we all
12 know it was Nazmi Brahimaj. Rrustem Tetaj said clearly when asked by
13 me - that's Exhibit P75, transcript page 3820:
14 "Q. On the two occasions, when you went to Jabllanice to
15 inquire about Skender Kuqi, there was no sign of Lahi Brahimaj in
16 Jabllanice at that time, was there?
17 "A. No, no, no. I had no contact with him and he was not
18 present, no."
19 Is it perhaps the case that people at the time in the -- I'm
20 being told to slow down a bit. Am I rattling on?
21 JUDGE MOLOTO: You probably are.
22 MR. HARVEY: Okay. I did take the precaution of providing our
23 LiveNote reporters with copies of what I planned to say and I've said
24 I've more or less struck to transcript but I'll slow down a bit conscious
25 of the time.
1 Is it perhaps the case that people at the time in a confused war
2 situation simply didn't know who was in charge in Jabllanice, simply
3 didn't know at that time who was whom? Can you afford to ignore the
4 obvious point that with the arrest seven years ago of Lahi Brahimaj with
5 the media attention which this understandably generated in Kosovo and
6 with the protracted history of the first trial people today have managed
7 to convince themselves that they saw him, whereas in fact it could have
8 been any one of other uniformed KLA soldiers in Jabllanice at the time?
9 But of course, say the Prosecution, Lahi was the leader of Jabllanice.
10 Of course, say the Prosecution, Lahi was the uncle of Ramush and,
11 therefore, it must have been Lahi.
12 Well, this doesn't mean that Lahi Brahimaj had nothing to do with
13 Jabllanice. Of course we're not suggesting any of the sort. But we are
14 asking you to bear in mind the reality of the time when the KLA, during
15 this indictment period, are gradually trying to build up a General Staff
16 inside the country. The problem the Prosecution does not attempt to
17 address is the practical reality of Lahi's true role and
19 Bislim Zyrapi and Jakup Krasniqi testified that his
20 responsibilities required him to be in the Berisha mountains most of the
21 time. Yet the Prosecution say he was nearly constantly in Jabllanice,
22 nearly constantly present. Why you have to ask. You don't even need to
23 look at Bislim Zyrapi and Jakup Krasniqi. Why is Ramush, his own nephew,
24 saying, You're not up to it, Lahi. You're out of here. Because he's not
25 attending meetings. He's not physically present.
1 There has been gross misrepresentation of the actual testimony
2 that you have heard and that is therefore much easier to point out than
3 the misrepresentations by the witnesses themselves in some respects.
4 The Prosecution kicks off at paragraph 4 of their brief citing
5 Colonel Crosland for the proposition that from April to September the
6 Dukagjin Zone was mainly under the control of the KLA. In fact, his
7 testimony, very forceful and powerful and compelling testimony it was,
8 was that it was a "fluid situation." And he said that time and time
10 In that situation, the Serbs could take control, he said,
11 whenever they chose. The situation was "extremely fluid throughout,
12 because no one side really held ground apart from the garrison towns and
13 things like that." That's at Exhibit P8, transcript 3030, lines 1 to 2,
14 on 20th of April, 2007.
15 Colonel Crosland accepted that from March to July 1998:
16 "the apparent efficacy of the KLA and control has been or was
17 exaggerated in the minds of others where in fact on the ground it was
18 fairly thin."
19 Again, Prosecution Exhibit 8, T3032, lines 5 to 11, and 3033,
20 lines 1 to 2.
21 On Monday, Mr. Rogers again misrepresented the truth in this case
22 and attempted, we say, to mislead you by citing a briefing given by
23 Colonel Crosland in April 1998, and I refer to transcript page 2751,
24 lines 8 to 11, where that misrepresentation occurred in echoing as it
25 does paragraph 46 of the Prosecution's brief.
1 Mr. Rogers cited the briefing given by Colonel Crosland in
2 support of his general proposition - Mr. Rogers' general proposition -
3 that the KLA murdered six Albanians deemed Serb sympathisers. However,
4 what Colonel Crosland in fact said was six bodies were found in a forest
5 near Orahovac on the 6th of April. One plausible explanation is that
6 these were Albanians loyal to the Serbian regime killed by the KLA, but
7 no one has claimed responsibility. Is that where we're at, one plausible
8 explanation is cited as convincing proof beyond a reasonable doubt of
9 something that happened near Orahovac, not in -- not near Jabllanice?
10 Mr. Guy-Smith also drew attention to what Colonel Crosland in
11 fact said. I would add only this, when he said - I'm quoting again from
12 Colonel Crosland in the Limaj case:
13 "We did see the bodies, but there was really no conclusive
14 evidence as to how they came there and who had shot whom. This is all
15 part of - I said the fluid situation - that prevailed throughout 1998 and
17 That's Prosecution Exhibit 9 under seal, T1882.
18 I make that point because not only is this in the Limaj case
19 where counsel in this case did not have a chance to cross-examine had
20 they wished to do so, but this wasn't even cross-examination. This was
21 in response to the OTP Prosecutor at that time. This is evidence in
22 chief, not led -- not in respond to a leading Defence question.
23 Other counsel have also commented on paragraph 101 with this
24 completely misleading statement that days before the 19th of May Serb
25 attack, dot, dot, dot. This is in relation to Count 1 when the three
1 left Dollc, days before the 19 of May Serb attack, paragraph 101. And in
2 a footnote the OTP cites to Witness 66 who as you have heard does not say
3 anything about days before the 19th, he says on the 19th, at 9.30 in the
5 His testimony quite explicitly not only says it's the 19th, he
6 said it was a Tuesday, and I ask you to take judicial notice and we can
7 all zip back through our computerised calendars and find out that indeed
8 on the 19th of May, 1998, it was a Tuesday.
9 This attempt by the OTP to reconcile these witnesses with
10 Witness 80's testimony is at best inaccurate and at worst a deliberate
11 misrepresentation of the evidence before you. As Mr. Emmerson has said,
12 it means that you cannot rely on any of these footnotes, unfortunately,
13 to support the positions they stand for or they purport to stand or. The
14 only reason they claim it was days before is so they can tie it to one of
15 the many different pick 'n' mix versions told by Witness 80, the story
16 they want you to swallow.
17 This brings me to review the gross misrepresentations that have
18 been made to you by a number of witnesses, because we don't like the word
19 "lie," do we.
20 The failure to exercise any responsibility in relation to the
21 quality of the evidence presented before you is, frankly, insulting to
22 the intelligence of this Trial Chamber and to the integrity of this
23 institution as a whole. The total failure to explain in their final
24 brief what weight should be attached to the testimony of witnesses who
25 have clear motives to lie and exaggerate, it beggars belief. Their bland
1 shoulder-shrugging abandonment of Witness 81. Well, never mind, just
2 ignore him.
3 This is not the conduct of a responsible Prosecution. A
4 responsible Prosecution would never have put Witness 81 before you in the
5 first place.
6 The repeated presentation of flawed testimony is the one
7 consistent theme in the Prosecution case in this partial retrial.
8 Your Honours may be of a generation to remember Simon and Garfunkel's
9 "The Boxer," a man hears what he wants to hear and disregards the rest.
10 You may also remember the chorus of that song: "lie, lie, lie, lie,
12 It's the constant drip of Prosecution's misrepresentations.
13 Witness 6 not that we put him forward as a witness of truth in general
14 terms, but even he claims and probably did spend the longest time of any
15 in Jabllanice. He never mentions word one about people being put in a
16 basement full of water. He never saw anybody beat Witness 3. He says,
17 in terms, Witness 3 was not beaten.
18 Mr. Guy-Smith has set out many of the details of the conflicts
19 between Witness 6 and Witness 80, and we adopt Mr. Guy-Smith's answers --
20 points in their entirety. Witness 6 flatly contradicts much of the key
21 evidence on which the Prosecution relies from Witness 3, Witness 75, and
22 Witness 80. That doesn't matter. As long as you pick out the flavours
23 in the pick 'n' mix bag that the OTP asks you to like. For example,
24 paragraph 87 of the Prosecution brief. It's a little throwaway line
25 there that Mr. Jah Bushati was forced to join the KLA. Not according to
1 Witness 75 he wasn't. There's no evidence from Witness 80 or anyone else
2 on that point. It's just a bold unsupported assertion.
3 Paragraph 91. Jabllanice was a no-go area for Serbs.
4 Colonel Crosland said there was no such thing as a no-go area. Whenever
5 they wanted to, the Serbs were capable of overrunning Jabllanice, and
6 they did so at least twice during the indictment period on the 2nd of
7 August when they butchered Lahi Brahimaj's mother and grandmother,
8 literally cutting them to pieces.
9 Count 1, as Mr. Guy-Smith has rightly said, the question is not
10 when these three young men were taken to Jabllanice but whether they ever
17 Just select whichever portions of it happen to fit the Prosecution's case
18 when Witness 80's evidence is "read as a whole" the one thing that you do
19 find throughout is that it is inconsistent, that he says nothing that is
21 MR. ROGERS: Your Honours, forgive me. May we move briefly into
22 private session.
23 JUDGE MOLOTO: May the Chamber please move into private session.
24 [Private session]
22 [Open session]
23 THE REGISTRAR: Your Honours, we're back in open session.
24 JUDGE MOLOTO: Thank you, Mr. Registrar.
25 Yes, Mr. Harvey.
1 MR. HARVEY: Thank you, Your Honours. [Microphone not activated]
2 as I was saying --
3 THE INTERPRETER: Microphone for Mr. Harvey, please.
4 JUDGE MOLOTO: Microphone, Mr. Harvey.
5 MR. HARVEY: My apologies. Thank you. As I was saying, where
6 the Prosecution say the only reasonable interpretation of Witness 80's
7 evidence, all at once alarm bells have got to start ringing. Is this
8 their new definition of beyond reasonable doubt? The Trial Chamber
9 should not have to rely on the OTP's selective interpretation of the
10 evidence. If the evidence doesn't speak clearly and consistently for
11 itself, it cannot be said to be established beyond a reasonable doubt.
12 In relation to Counts 2 and 4, they have been covered by my
13 colleagues. I would make only this point: Search the OTP's case as you
14 can. Search their final brief. They do not cite to anything that any
15 witness has said before you. They only cite to the previous trial.
16 Well, I appreciate that this is a retrial, but if there has been
17 no fresh evidence on counts of which my client has already been
18 acquitted, then, in my submission, those acquittals are good and should
20 At paragraph 151 of the OTP's final brief, they say it is clear
21 from Witness 6's evidence that he did not see the beating that Witness 3
22 suffered upon his arrival. Well, they've got to say that because they've
23 got to try and find some way of explaining why Witness 6, whom they want
24 as a witness of truth, and Witness 3, whom they want as a witness of
25 truth, have a complete inconsistency. But it's worse than this, because
1 that isn't what Witness 6 said. He did not say that he didn't see the
2 beating. He said specifically that Witness 3 was not beaten, and he was
3 only there for a relatively short period of time. That is at
4 Exhibit P84, transcript pages 5235 through 5336, which we invite you to
5 review as you look at the evidence of Witness 3 on this point.
6 Never mind, say the OTP. Just pick those bits of Witness 3's
7 testimony that we tell you you should accept. Ignore the contradictions
8 between 3 and 6, just as they invite you to ignore the contradictions
9 between 6 and 80; 3 and 80; 3 and 6 and 80; 75 and 80. I'm sounding like
10 a bingo caller here, but essentially they want you to ignore every
11 contradiction with which their case is full. And of course you should
12 forget all about 81.
13 Is this the new OTP standard of beyond reasonable doubt?
14 In relation to Count 6, I've said a little bit already about
15 Lahi Brahimaj's role as we say it was, and I refer again to the
16 Prosecution's brief, paragraph 235 and 236, where they describe Lahi as a
17 near constant presence in charge of Jabllanice.
18 The exhibits that you have in this case tell a very different
19 story. P204. Perhaps we could call that up. Could we, please,
20 Mr. Registrar, P204. And if we could have the English version as well,
21 please. Thank you. And could we go to the next page, please. If we
22 just highlight the last four lines on that page.
23 "Caution for Lahi Brahimaj: When he moves out of the
24 operational zone, he has to inform ..."
25 Again, something I don't think we need to bother too much,
1 although the next words obviously relate to that, but a caution to be
2 issued to Lahi Brahimaj as a result of his being out of the zone. That's
3 on the 1st of July.
4 If we could now have P161, please. Thank you. And could we go
5 to the next page again, please. Oh, wait a minute. Sorry. I -- I have
6 called up the wrong exhibit. I do apologise. May we go instead -- I've
7 obviously got confused over exhibit numbers. I'll find the right
8 exhibit. Meanwhile, if I could just quote from it and I'll get the right
9 number for Your Honours. This is the 4th of July meeting where a
10 reprimand is issued to Lahi Brahimaj in these terms:
11 "Following our request for a working meeting that due to your
12 absence from the zone of responsibility to which you belong, failed to
13 take place twice in a row, we address to you this reprimand from us
14 requesting you to carry out your work faithfully."
15 Thank you very much. It's P211. I do apologise for that.
16 JUDGE MOLOTO: And is his zone of responsibility described? Do
17 we know what --
18 MR. HARVEY: He is the head of the Dukagjin Zone at this period,
19 Your Honour. That is the zone of responsibility as defined in the
20 previous documentation that we have.
21 JUDGE MOLOTO: Thank you.
22 MR. HARVEY: So to Lahi Brahimaj, deputy commander of the
23 operational headquarters of the Plain of Dukagjin. I think that makes it
24 very clear:
25 "Following our request for a working meeting that due to your
1 absence from the zone of responsibility to which you belong, failed to
2 take place twice in a row, we address to you this reprimand from us
3 requesting you to carry out your work faithfully. We ask for this
4 behaviour not to be repeated."
5 Now, clearly two meetings were scheduled and had to be cancelled
6 because Lahi was not in the operational zone. And why? You've heard
7 from Bislim Zyrapi. You've heard from Jakup Krasniqi. You have heard
8 the evidence that of course the headquarters that they were trying to set
9 up for the General Staff of the KLA were in the Berisha mountains. You
10 have heard that Lahi was responsible for finance and logistics. You
11 heard, therefore, that he had duties that compelled him to be wherever
12 the General Staff might be at any given time. Therefore, it is perhaps
13 not at all surprising that within a very, very few days of his supposed
14 appointment of his actual appointment as deputy commander it is
15 recognised that this is, frankly, a mistake, that it's not possible for
16 him to carry that out, and we can see - if we could have Exhibit P218,
17 please - the result of that.
18 Thank you.
19 And this, as Your Honours see, is the next day from the previous
20 exhibit. That was the 4th of July. This is the 5th of July.
21 Lahi Brahimaj is discharged from the service of the deputy commander of
22 the Dukagjin operative headquarters, and Nazmi Brahimaj is appointed as
23 deputy commander in his place. This order comes into effect immediately.
24 So, Your Honours, I think it's important to focus on this point,
25 because the constant or near constant presence claimed by the OTP of
1 Lahi Brahimaj in Jabllanice, that his command responsibility there - this
2 gives the lie, the exhibits put in by the Prosecution give the lie to
3 that claim. Doesn't mean -- as I say, I'm being realistic, I hope. It
4 doesn't mean that Lahi Brahimaj was never in the village that he was born
5 and grew up in. Of course he was there. But it does mean you have heard
6 all of the evidence about the difficulties of travel by night, not being
7 able to use the roads that were blockaded by the Serbian military forces.
8 You have heard that it was a problem of communication throughout this
9 period and that the headquarters were a considerable distance away in the
10 Berisha mountains, and obviously Lahi Brahimaj was required to be there
11 on a frequent if not regular basis.
12 That's all I say in that respect.
13 JUDGE MOLOTO: Do we --
14 MR. HARVEY: Please.
15 JUDGE MOLOTO: Do we have evidence to say that he was there on a
16 frequent and regular basis?
17 MR. HARVEY: We have Bislim Zyrapi and Jakup Krasniqi say that he
18 was there. I don't think anybody is able to speak of the particular
19 degree of frequent circumstances. But I it is, I think, Jakup Krasniqi
20 and I will have to find reference on this one, I don't have it right at
21 my fingertips, who says that because of his responsibilities as a staff
22 officer, it was impractical and impossible for him to fulfil the
23 responsibilities of a -- an officer commanding troops in the field. So
24 when he would be in Jabllanice, that would be on a time-to-time basis.
25 It would be on an as-needs basis. And we have plenty of evidence in this
1 case that people did move around in response to an attack, in response to
2 a sudden need from a particular village. People would be brought in very
3 quickly, and there's -- I think there's quite a bit of evidence also from
4 Bislim Zyrapi on him travelling with Lahi Brahimaj on an emergency basis
5 in response to requests from the General Staff. But if Your Honours
6 would like, I can certainly find page references in the transcript on
8 I'd like to move, if I may, to a number of sections in our brief
9 which I have no intention, you will be relieved to know, of reading to
10 you, because I note that you will have read it already and that you will
11 study it, I hope, in some detail and depth.
12 JUDGE DELVOIE: Mr. Harvey, just one moment. I suppose the
13 transcript at page 63, 21, will be corrected where it is said that it's
14 Mr. Guy-Smith that is speaking while obviously it's you.
15 MR. HARVEY: I'm grateful for him not interrupting me at this
16 point, Your Honour, and for you drawing attention to that. Thank you.
17 JUDGE MOLOTO: What did you say?
18 MR. HARVEY: Yes, I see I'm back on the job.
19 At page 7 of our brief, we have a section headed "Credibility and
20 Reliability" where we describe the Prosecution case as a master class in
21 the indicia of untruthfulness and unreliability. And Your Honours know
22 at page -- at paragraph 18 on pages 8 through 10, we list criteria of
23 unreliability and absence of credibility because it's -- it's an
24 interesting exercise to do, just as a trial lawyer thinks of all of the
25 areas where a -- Your Honour, I see you poised. I see your light is on.
1 I see I'm probably approaching a time at which you'd like me to take a
3 JUDGE MOLOTO: We've gone beyond it by five minutes.
4 MR. HARVEY: Okay. May I just finish making this point and then
5 I will break. Thank you.
6 As a trial lawyer, you constantly think about the issues which
7 demonstrate a witness to be lacking in credibility or reliability, but
8 speaking for myself, and Your Honours may have a different experience, I
9 don't think I've ever been involved in a case in 40 years where I have
10 seen every single one of these indicia of unreliability and incredibility
11 demonstrated as clearly and as disturbingly as the Prosecution case here.
12 With that, I will pause for half an hour.
13 JUDGE MOLOTO: Thank you very much. We will take a break and
14 come back at half past 12.00. Court adjourned.
15 --- Recess taken at 12.04 p.m.
16 --- On resuming at 12.32 p.m.
17 JUDGE MOLOTO: Mr. Harvey.
18 MR. HARVEY: Your Honours, just before the break, I had begun to
19 address a couple of issues in reply to a question of the Presiding Judge
20 on Lahi Brahimaj's presence or -- presence in or absence from Jabllanice,
21 and if Your Honours have to hand our final brief, page 11, beginning at
22 paragraph 21, we do set this out in some detail, pointing out that in
23 1998, Lahi was then 28 years old and already a member of the
24 General Staff working inside the country. We cite at paragraph 22 the
25 evidence of Bislim Zyrapi and Jakup Krasniqi concerning the conditions
1 under which the General Staff operated. Krasniqi, in particular, at
2 paragraph 23 saying he had even no knowledge at all of Lahi Brahimaj
3 until he actually entered the -- Kosovo in around June 1998 when he was
4 appointed spokesperson, and that further down on that paragraph, members
5 of the General Staff operated in secret, meeting irregularly at a variety
6 of separate villages in the Berisha mountains in Drenica. And again at
7 24, Mr. Krasniqi and Mr. Zyrapi both confirmed that Lahi was a staff
8 officer and, as such, not in a position to be in command of soldiers in
9 the area. And I think that, therefore -- I hope that addresses your
11 As I said, we do not take the absurd position that Lahi Brahimaj
12 was never in Jabllanice. We simply say that logic makes it obvious that
13 he has -- in order to have discharged his responsibility, he has to have
14 been absent frequently, and indeed that is underscored by his rapid
15 dismissal by Mr. Haradinaj from his position as deputy head of the
16 Dukagjin Zone because he was not attending meetings when he was outside
17 the area.
18 Thank you.
19 If I may also make the point that in relation, on page 12, we
20 take the point that Jabllanice was not in and could not have been in
21 control of all of the surrounding villages. Again drawing on what
22 Mr. Rexhahmetaj and Mr. Zyrapi said about attempting to gain control, the
23 other very obvious point to any of us who has any knowledge, experience,
24 background in liberation struggles and liberation movements and how they
25 operate is that you don't win power by bullying people when you are in a
1 relatively weak position. You have to win their hearts and minds. And
2 the record shows that the KLA not only won the hearts and minds, it won
3 the war. It won the respect and love of the people, as Mr. Emmerson has
4 pointed out.
5 I just want to hit a couple of points in relation to Witness 80's
6 more extravagant and incredible claims. Pages 15, 16, and 17 of our
7 final brief.
8 The suggestion that he was targeted because he was a member of
9 the LDK, when on his own evidence he was not an office holder. He played
10 no leading role. There's nothing to suggest that those who did play a
11 leading role in that village were themselves targeted, which is what you
12 might expect if there were any basis to that claim. It makes no sense,
13 but that almost pales into significance by his claim that in 1998 he
14 could set up a stronger army than the KLA. If frankly beggars belief
15 that that could come out of his mouth which is why I asked him was he
16 actually serious about that bizarre claim. He insisted that he was.
17 Transcript page 2594, lines 9 through 13.
18 And then sometimes we as lawyers, when we put a witness on the
19 stand, have to be very good at keeping a straight face and not letting
20 our reactions show, and Mr. Rogers did a very good job of that when
21 Witness 80 suddenly blurted out that he had been reported to have been
22 seen in or on top of a Serbian tank during the Serb attack on Ceskovo
23 village. And questioned by the Prosecutor as to why he claims the KLA
24 detained him, he said allegedly someone had gone and told him -- told
25 them that I had participated in the attack against the Ceskovo village
1 and I had been in the tanks of the Serbian forces. That's at
2 transcript 2416, lines 5 to 15.
3 By the time he came to be cross-examined on this point three days
4 later, he strengthens his account by improving on the "him" who was told
5 or the "them" who were told, the accused himself, Lahi Brahimaj, went all
6 over the territory and declared that I saw, the witness, with my own eyes
7 on top of Serb tanks.
8 Again, a factiously bizarre invention and one that is
9 fascinatingly close to Witness 3 who testified that he was questioned
10 himself about he, Witness 3, being seen on top of a tank in
11 Gjurgjevik i Madh, and that's at T1566, lines 3 through 5, and following.
12 Since both of these witnesses have had an opportunity to discuss
13 their evidence and since this evidence is in any event broadcast for the
14 public to listen to or to read, we say there is every reason to treat
15 this particular invention by Witness 80 as what Mr. Guy-Smith has called
16 the theft of another man's life or another man's claim to what actually
17 happened to be his experience.
18 If I may turn, then, to the death threats which we say he claims
19 to have been made against him, and that's at paragraph 51 of our final
20 brief on page 21.
21 These claims were investigating thoroughly and in detail and the
22 documents were shown to the witness in court so that he could react to
23 them, they were investigated by UNMIK who found that there was nothing to
24 link this claim to the KLA. And as we have put it there, the secret life
25 of Witness 80 is rather like "The Secret Life of Walter Mitty." He
1 claims to have been everywhere, to have seen everything, but we submit
2 these claims are based on invention, on lies, on what he's been told by
3 others. And we have to bear in mind the potential for what may have been
4 suggested to him as things that might help him to gain the benefits that
5 he has received as a result of his testimony in this case.
6 We have set out the lies, exaggerations and inconsistencies in
7 detail. I'm not going to rehearse that before Your Honours. You have
8 that in front you.
9 I'm going to talk about his motivations for a moment. His
10 motivation to lie was underpinned by greed and need. He had lost his
11 job, whether he was fired, as was suggested to him, for threatening his
12 boss with a weapon or whether he simply resigned, as he claimed. Either
13 way, he was not able to continue as a sanitation worker. He was unable
14 to get any other job in Kosovo. He was a widower with children to
15 support and a history of years of arms smuggling which had finally caught
16 up with him, resulting in him facing criminal charges. So he couldn't
17 resort to gun-running to supplement his lack of income to make up for it.
18 But he does have one skill, and Your Honours have seen it demonstrated
19 very clearly. He is a man of considerable cunning, a man who is
20 manipulative, and he put those skills to work in a sensation way.
21 Ultimately, after he had used every conceivable dishonest employ to avoid
22 coming here to testify in The Hague, this Trial Chamber had an
23 opportunity to watch that cunning in operation over a period of several
25 The first thing out of his mouth was a lie. He claimed that he
1 had a doctor's certificate stating that he should be hospitalised. When
2 you, Your Honours, asked to see that supposed doctor's certificate, it
3 turned out that the doctor had ordered no such treatment. And over the
4 ensuing days, his supposed illness staged a miraculous recovery. He grew
5 in confidence and in combativeness and he was skilful in evading
6 questions that Your Honours may have thought he found too uncomfortable
7 to respond to.
8 I have a section in our final brief which goes into a lot of
9 detail about Witness 81, and it is really tempting to say, Okay,
10 Witness 81's out of here. We don't need to consider him.
11 I adopt everything Mr. Emmerson has so ably said about why it is
12 important to look at the way in which the Prosecution sought to introduce
13 evidence through that despicable witness and the nature of a Prosecution
14 that seeks to rely on a witness of that calibre. But I do say, you'll be
15 relieved to hear, that I think Mr. Emmerson has said it all. I adopt
16 every word of what he said, and the only reason I'm not going to belabour
17 the point is it's in our brief. I do ask you to read it. I do ask you
18 not to accept the Prosecution's invitation to say, All right, we don't
19 need to think about this at all. The real question is: What kind of a
20 Prosecution would put a witness like that on in the first place?
21 I want to turn, if I may, to the section of our brief on page 53
22 concerning the evidence which came into this trial for the first time.
23 It had no bearing on the first trial, was never mentioned, and that
24 concerns the disappeared person, (redacted). And Your Honours will
25 notice that I found a nice -- I think a rather nice little quote from
1 Graham Greene at the beginning of that section which I think describes
2 Witness 75 particularly well: "He entered the territory of lies without
3 a passport for return."
4 The entire history of how this witness's testimony was obtained
5 and elicited together with the way in which the Defence and the
6 Trial Chamber were belatedly informed of the benefits already received
7 and those yet expected by that witness should leave the Trial Chamber
8 doubting every word that came from his mouth. At the very least, if it
9 is uncorroborated by a truly reliable source, we say the only safe
10 approach is to reject it utterly.
11 Mr. Rogers' suggestion that this is someone who came forward out
12 of motives of honour would be farcical if it did not lie so
13 inappropriately and irresponsibly in the mouth of a senior Prosecutor.
14 Your Honours, I turn to paragraphs 177 to 8 on page -- pages 54
15 to 55 of our brief, because I think it's important to recall how evasive
16 and reluctant he was to discuss what he had testified to under oath in
17 other proceedings to immigration authorities. Confronted with the proof
18 that he had written begging for help to the OTP investigator, he tried -
19 painfully to watch - he tried to lie his way out of it. He took shelter
20 behind a claim that he couldn't read English, although in fact you,
21 yourself, Mr. President, had to admonish him on one occasion at the
22 request of the court's interpreters not to answer questions in English.
23 You may think that his claim that he didn't understand what he, himself,
24 had written in an e-mail, despite his denials, was an utter conspicuous
1 Like the lies that he told in order to get asylum, and when he
2 failed in that attempt, when that asylum was denied to him, he grasped
3 desperately at the heaven-sent opportunity to try and get support for his
4 claim from the OTP. And despite their reluctance to admit it, that is
5 exactly what he got. He got the most conspicuous support as an
6 immigration attorney you could possibly hope to have in your hands to lay
7 before a Tribunal and say please re-open the case because we now have
8 information that this person would face threats to his life, his family,
9 his security, if sent back. A Godsend for his immigration attorney but
10 based, we say, on lies. Because Your Honours have had the opportunity to
11 review what he did say to the immigration authorities in support of his
12 asylum claim.
13 He never said a single word about his brother being mistreated by
14 the KLA or anybody being mistreated by the KLA. He never mentioned
15 Jabllanice. He never mentioned the Brahimajs.
16 It's important to ask, Why not? If it had been true, it would
17 have been a perfectly good basis for claiming asylum. Here are these
18 people who are accused before you of war crimes who had already finished
19 at the time that he was testifying in 2008, at the time that that witness
20 stood before an immigration judge and gave his testimony the first trial
21 was over as far as the evidence was concerned and as far as the final
22 briefs were concerned. Judgement had yet to be given. But what better
23 opportunity, if there were any basis of truth in it, than to say to the
24 immigration judge, In support of my asylum claim, you should know those
25 three murdering thugs who have been on trial in The Hague, those are the
1 ones who I'm terrified of. Lahi Brahimaj is the one who did terrible
2 things to my brother. What better claim could you possibly have to put
3 before an immigration judge? Not one word of it.
4 Instead, he maintained that he was in fear because the Serbs
5 killed his brother. Your Honours may recall the document that he filed
6 in support of his claim which purported, fraudulently, to have been sent
7 from Kosovo in support of the claim that the Serbs had killed his
8 brother, and it's noteworthy that he never made any suggestion that the
9 KLA had done it, or indeed, of course we know nothing about the ultimate
10 fate of his brother and he said that was his reason for coming forward.
11 He hoped to find out about the ultimate fate of his brother. That may be
12 the only true thing he said to you, but sadly, one way or another, we are
13 no further forward in establishing that.
14 Instead of telling what might have been thought to be a plausible
15 claim if there were any truth to it, he concocts this bizarre story about
16 two rogue assassins paid by a Serbian ex-policeman who lives in
17 Montenegro who were trying to kill him because, as he says in what looks
18 rather suspiciously like very coached testimony, I love a democratic
19 Kosovo, because of his claimed support for the PDK, a party in which he
20 never actively or concretely participated. And for all of this,
21 Defence 192 exhibit under seal at transcript page 1738 through 1743, sets
22 out the document on which he was cross-examined and the painful answers
23 he gave in response to it.
11 MR. ROGERS: Your Honours, may we move into --
12 JUDGE MOLOTO: We'll move into private session.
13 MR. ROGERS: Thank you.
14 [Private session]
11 Page 3028 redacted. Private session.
12 [Open session]
13 THE REGISTRAR: Your Honours, we're in open session.
14 JUDGE MOLOTO: Thank you so much.
15 Yes, Mr. Harvey.
16 MR. HARVEY: Yes, Your Honours. The only evidence that purports
17 to corroborate any beating of that individual is that given by
18 Witness 80. Whatever the source of that claimed information, (redacted)
19 cannot -- I've done it, haven't I? We're going to have to redact that.
20 Sorry. May we go into --
21 JUDGE MOLOTO: May the Chamber please move into private session?
22 [Private session]
11 Pages 3030-3031 redacted. Private session.
3 [Open session]
4 THE REGISTRAR: Your Honours, we're in open session. Thank you.
5 JUDGE MOLOTO: Thank you so much, Mr. Registrar.
6 And you don't have to repeat yourself, Mr. Harvey. You may move
8 MR. HARVEY: Okay. At pages 65 through 72 of our final brief,
9 and I want to take you, if I may, particularly to page 65 to start with.
10 Your Honours recall that Mr. Guy-Smith has referred to a number of
11 irreconcilable contradictions in Witness 80's claims upon which the OTP
12 bases both Counts 1 and Count 6. We have set out here a series of
13 alternative scenarios based on the evidence given by Witness 80, and
14 Your Honours will see we have set out five particular scenarios.
15 Probably another five could easily be added to those but we didn't want
16 to stretch the brief out until the crack of doom.
17 The Prosecution do not know on what evidence when the boys were
18 taken to Jabllanice. That's how Mr. Rogers put it. The reality is we do
19 not know on the evidence whether the three young men were ever taken to
21 And if we could bring up -- I have modified Exhibit P78, which is
22 the map that Your Honours had displayed to you by Mr. Emmerson that was
23 in fact drawn by Rrustem Tetaj to show the various zones of command,
24 areas of command, which are in black ink with numbers 1 through 4 on the
25 left-hand side of the screen in front of you.
1 On the right-hand side, I have highlighted in blue the area that
2 was under attack - as Your Honours will see in a moment when we look at
3 Exhibit P114 - at the time of the Serbian Army offensive that was mounted
4 against villages around the 19th of May, 1998. Your Honours will see
5 that I have highlighted four villages which are mentioned in
6 Exhibit P114, which as I say we can't put two exhibits on the screen at
7 the same time, but I will mention them just to show where all of these
8 places are in relation to each other.
9 At the top of the large oval -- there's a regular tangle in blue
10 that surrounds Grabanice. Can we zoom in a little bit? Yes. Thank you.
11 Now I can read it too.
12 And then below to the right, Dollovo; below to the left, Ceskovo;
13 and at the bottom, Kpuz. If while we're here we could also look up above
14 to the right, we see encircled or a red oval the village of Dollc or
15 Dolac, which is, as Your Honours will see, at the north-east of the
16 crossroads between the Kline-Djakovica road which runs more or less
17 north/south on this map and the Peje-Pristina road which runs more or
18 less east/west. Your Honours see the cross roads there, which means as
19 we have set out in our brief that to travel --
20 JUDGE MOLOTO: Excuse some of us who are slow on the uptake,
21 which is the Pristina/Peje --
22 MR. HARVEY: That's the one that runs more of less east-west.
23 JUDGE MOLOTO: Below Dolac.
24 MR. HARVEY: Yes, but just below Dolac and is marked in red.
25 JUDGE MOLOTO: I'm with you now.
1 MR. HARVEY: And the north/south, Kline, and Djakovica is off the
2 bottom of the map. But, again, Your Honours see that running down
3 through Cupevo and do you know through Graza [phoen] to the bottom.
4 Now, to travel from Dolac to Grabanice would require crossing at
5 least the Kline-Djakovica road and the Pristina-Peje road at the height
6 of a full-scale Serb offensive. Your Honours will also see in relation
7 to each other in this area it may just be helpful because sometimes we
8 have to remind ourselves of places that we haven't looked at for quite a
9 while, that Jabllanice is down to the south-west of the large blue oval,
10 and just below that also circled in red is Zhabel.
11 Just again to avoid any confusion, I'm sure Your Honours remember
12 that the Glodjan that is just above Jabllanice is not the Glodjan that
13 has anything to do with Mr. Haradinaj. That's what is sometimes referred
14 to as Catholic Glodjan. Thank you.
15 May we -- oh, and there's one other place which I haven't
16 circled. If Your Honours just travel from the crossroads up north
17 towards Kline, you'll see on the left-hand side a small village called
18 Prlipa, P-r-l-i-p-a -- or n-a. Prlina or Prlipa? The relevance of that
19 place will -- it's Prlina - sorry - P-r-l-i-n-a. Prlina. The relevance
20 of that will come clear in a moment.
21 If we could now please have Exhibit P114. And if we could go to
22 the second page, please. Or at least maybe -- yeah. Yeah.
23 Your Honours will see the last but one bullet point:
24 "MUP/Ministry of the Interior/forces are currently carrying out a
25 serious operation in the sector of the villages of Gornja Grabanica,
1 Dollovo, Ceskovo, and Kpuz. They want to know whether VJ/Yugoslav
2 army/units would be able to support them if need be. They are deploying
3 their mortars in the Donje Cupevo village sector."
4 Just those points that were highlighted with the blue rectangles
5 so that we can all see what this area refers to.
6 JUDGE MOLOTO: Can we go to the first page.
7 MR. HARVEY: Certainly, Your Honours. We see that this is
8 Chief of Staff Dragan Zivanovic. And thank you, Your Honour. And
9 28th of May is the date on this.
10 JUDGE MOLOTO: That's what I wanted to see.
11 MR. HARVEY: Thank you. And of course that's -- the date of this
12 refers to the previous day as well, which is the 19th.
13 So -- thank you for that.
14 So if we may just pause to reflect now. We can take that from
15 the screen. I don't think we need it any more.
16 A major offensive is mounted against a number of villages in this
17 area. The three individuals were allegedly taking corn from Dollc to be
18 ground into flour in Grabanice. A map of the region shows Dollc, as
19 you've seen, to the north-east, Grabanice to the south-west of that major
20 intersection. Any route between those two villages would have required
21 them to cross both major roads and go through villages where they would
22 have risked running directly into Serbian attack, being hit by mortar
23 rounds and all kinds of possibilities which, in my submission, cannot be
24 excluded in the context of Count 1.
2 (redacted). All we know is that the
3 horse and car with which the three had left Dollc were ultimately found
4 in that little village of Prlina, which I mentioned, which is north of
5 that crossroads and closer to Kline than anywhere else in this story. A
6 greater distance from any the villages with which we are concerned in
7 this indictment.
8 The Prosecution say that the only inference that can be drawn
9 from the evidence is that they were killed by the KLA. Well, no, I'm
10 sorry. It is impossible to rule out a number of alternative scenarios.
11 Very sadly for their families no bodies have ever been found, but it is a
12 sad fact that in wartime people do disappear without trace in the
13 middle -- especially in the middle of major offensives.
21 When he claims to have been abducted on numerous occasions, the
22 only one that bears --
23 JUDGE MOLOTO: Can we move into private session.
24 [Private session]
8 [Open session]
9 THE REGISTRAR: Your Honours, we're in open session.
10 JUDGE MOLOTO: Thank you. And can we redact just that little ...
11 MR. HARVEY: Thank you.
12 When Witness 80 claims that Naser Lika was abducted on numerous
13 occasions, the only occasion that bears any factual resemblance to the
14 wrongdoing alleged in paragraph 65 of the indictment is that according to
15 Witness 80, Naser Lika was abducted by Hajdar Dula in Bucan.
16 Now, that section can only have been drafted on the basis of
17 statements given to the Prosecutor by Witness 80 who states at -- sorry,
18 that section states at paragraph 65 that Naser Lika was abducted at his
19 house in Grabanice. However, Witness 80's evidence is instead that
20 Naser Lika was kidnapped in Bucan.
25 JUDGE MOLOTO: Private session, please.
1 [Private session]
8 [Open session]
9 THE REGISTRAR: Your Honours, we're in open session.
10 JUDGE MOLOTO: Thank you so much. Yes, Mr. Harvey. I'm sorry
11 for the interruption, but -- yeah.
12 MR. HARVEY: Understood, Your Honours.
13 The important point here is that Witness 80's testimony was that
14 when, as he said, Naser Lika was kidnapped by Hajdar Dula in Bucan, other
15 soldiers were there, but he could not remember their names. Transcript
16 reference 2371, lines 17 to 22.
2 MR. ROGERS: Your Honours, I just think maybe we go into private
4 JUDGE MOLOTO: Maybe the Chamber please move into private
6 [Private session]
16 [Open session]
17 THE REGISTRAR: Your Honours, we're back in open session. Thank
19 JUDGE MOLOTO: Thank you, Mr. Registrar.
20 Yes, Mr. Harvey.
17 MR. ROGERS: Your Honour, can I take the opportunity to
18 interrupt. Please may we go to private session.
19 JUDGE MOLOTO: Private session, please.
20 [Private session]
11 Page 3043 redacted. Private session.
20 [Open session]
21 THE REGISTRAR: Your Honours we in open session.
22 JUDGE MOLOTO: Thank you so much, Mr. Registrar.
23 Yes Mr. Harvey.
24 MR. HARVEY: On the question of mens rea we say that it is highly
25 significant that the detailed minutes of the meetings attended by
1 Lahi Brahimaj, Ramush Haradinaj and others on the 21st, 23rd, and 24th of
2 June, 1998, show no trace of any intention to condone or cover up the
3 commission of war crimes in pursuance of a common purpose of
4 consolidating the total control of the KLA in the Dukagjin Zone. They
5 show no evidence of any such intent for any purpose.
6 It was Professor William Schabas who was asked what JCE stands
7 for, and he equipped: Just Convict Everyone. Well, that isn't even what
8 the Prosecution is asking here. They are saying it's JCS: Please just
9 convict somebody. Just convict somebody of something so it doesn't look
10 as if we've gone through all of these months, all of this expense of a
11 start-stop trial, these embarrassingly biased, prejudiced and
12 self-interested witnesses, this farrago of lies and misrepresentations,
13 all this for nothing. It's an embarrassment but it's not an
14 embarrassment to this Tribunal. It's a seductive invitation to credulity
15 against which Dr. Johnson warned. This partial retrial has not been a
16 waste of time. It's not been a waste of money. The love of truth must
17 and shall not be diminished and this case provides this Tribunal with the
18 perfect opportunity to demonstrate to the world that no honest witness
19 will be prevented from testifying and to demonstrate equally that all
20 testimony will be held up to the strictest scrutiny.
21 Where those who purport to be witnesses but instead attempt to
22 abuse the protections of this Tribunal for their own ends, they and their
23 testimony must and will be found wanting, and Lahi Brahimaj will be found
24 not guilty and will be permitted to continue his studies in law and human
25 rights at Iliria College in Prishtina and to continue to play his part in
1 supporting the rehabilitation of all of the people of Kosovo, the
2 reconstruction and peaceful development of their country under the rule
3 of law.
4 I thank you for your attention.
5 JUDGE MOLOTO: Thank you, Mr. Harvey.
6 Mr. Rogers.
7 MR. ROGERS: Your Honours, I don't think I'm going to be able to
8 complete in ten minutes. I give warning, if I may, of that. I have
9 about ten points I wants to cover. Let me see how quickly I go. I don't
10 know whether Your Honours are able to extend the sitting by 15 or 20
11 minutes to try to conclude.
12 JUDGE MOLOTO: We must confer with the other people [Microphone
13 not activated] -- beg your pardon. My microphone was off. I was saying
14 we need to confer with the rest of the people who are affected by that
15 request, and I see Mr. Registrar wants to say something.
16 [Trial Chamber and Registrar confer]
17 JUDGE MOLOTO: Mr. Registrar informs the Chamber that if it's 10
18 to 15 minutes, then the interpreters are happy with it, we can do that,
19 but otherwise we can have another session. If it's going to be longer
20 than that then there must be a break to give the interpreters a break.
21 MR. ROGERS: Your Honours, let me try to get through as much of
22 it as I can --
23 JUDGE MOLOTO: Go ahead. Go ahead.
24 MR. ROGERS: -- and if we need, we'll know then how much longer I
25 need. So, Your Honours moving rapidly to the first point. Mr. Emmerson
1 during his address suggested that there was no evidence in the trial that
2 Mr. Haradinaj had ever visited the compound in which prisoners at
3 Jabllanice were detained - that's at transcript T2818 - and that the only
4 evidence is of him visiting the KLA headquarters in the Brahimaj family
5 house inside the village not the compound where the prisoners were
7 Your Honours, that's not correct. If Your Honours look at the
8 transcript at 2254 to 2361, the witness, protected witness, deals with
9 this in some detail with his description of what the headquarters was and
10 it's quite clear that he is describing and he does describe the buildings
11 with the long building along the wall and the building -- second building
12 described as a type of house in the centre.
13 And at transcript T2382 to 2383, he is more specific and refers
14 to the fact --
15 JUDGE MOLOTO: Sorry, are you able to tell us about this
16 protected witness by his pseudonym?
23 JUDGE MOLOTO: Can we go into private session.
24 MR. ROGERS: I've done it now. I'm sorry.
25 JUDGE MOLOTO: You've done it now.
1 Private session, Mr. Registrar.
2 [Private session]
18 [Open session]
19 THE REGISTRAR: Your Honours, we're in open session.
20 JUDGE MOLOTO: Thank you so much.
21 Yes, Mr. Rogers.
22 MR. ROGERS: Thank you. The next point relates to Mr. Emmerson's
23 assertions relating to the blacklist. And Your Honours will recall that
24 he said that the most important thing about that list was that it wasn't
25 a KLA list at all, and then he referred to a selected part of the
1 evidence of Witness 17 in his own cross-examination and accused the
2 Prosecution of not having looked at the evidence from the first trial and
3 then suggested we were trying to mislead you.
4 Your Honours, if you look at the whole of the evidence of
5 Witness 17 that was admitted into the record from the first trial, it
6 reveals the following: Particularly looking at Witness 17, P344,
7 paragraphs 56, 57, and 58, and that is the 92 ter statement of
8 Witness 17, which is a document under seal. I won't go into it in
9 detail, but you can look at it and see what it says. And particularly at
10 paragraph 58 where it refers to who it was that sought the persons,
11 because it was suggested that it was the FARK that were looking for them
12 and not the KLA. But paragraph 58 of that document makes it clear.
13 And when you look then at the testimony of Witness 17, P342 at
14 transcript 7584, he refers to who the village commander was, that's
15 Din Krasniqi. We know from Cufe Krasniqi's evidence at P54,
16 paragraph 31, that Din Krasniqi was the UCK or KLA commander for Vranoq.
17 That's at paragraph 31 of that exhibit. And he says, does Witness 17, at
18 P342 -- 7 -- transcript 7584. If I can just go back to 7583 - a bit
19 before - he says:
20 "A. At around 12 July, the operative unit was established in
21 Baran ... and we held a meeting at Vranoc with the commander of
22 Lugu i Baranit as it was called at that time, Din Krasniqi, and with
23 certain village commanders whom I didn't know at that time. During this
24 meeting, I was given this list, and I have written in my diary. I have
25 made this entry on the next day, the 13th, when we were inspecting
1 terrain, trying to find the best option for setting up the military
2 premises. So we went to Baran e Vogel, and we came to a conclusion that
3 the village school would be the most appropriate place. So what I'm
4 trying to say is that I didn't make up this list but this list was given
5 to me during the meeting.
6 "Q. ... do you know who this list was given to you by, please?
7 "A. I don't know, but it is possible that this list was made an
8 entry by a person who was taking the minutes, Din Krasniqi or someone
9 else, but I'm not able to tell you exactly who provided the list.
10 "Q. Can you tell us if it was someone within the KLA who gave
11 you this list?
12 "A. This was a meeting with a representative of the KLA for the
13 Lugu i Baranit, Din Krasniqi, and the village commanders. So if you look
14 at it this way you can well say that these were the persons who had made
15 this list and who had brought it to my attention."
16 Your Honours, can I --
17 JUDGE MOLOTO: Sorry, what you have just been reading, is that
18 not under seal? Isn't it --
19 MR. ROGERS: No.
20 JUDGE MOLOTO: Okay.
21 MR. ROGERS: The other bit was. Your Honours, in relation to the
22 third point I wish to make, Mr. Emmerson sought to persuade you that
23 after the 23rd of June even there were separate commands. And you'll
24 recall that he said that we also know from the evidence you've just
25 heard, even after 23rd of June, there was no command relationship of the
1 sort that I have tried to conjure up, and then he played some clips of
2 Tetaj and Rexhahmetaj to try to establish how culturally separate the
3 groups were and that it wasn't possible for one commander, you'll
4 remember, to march into somebody else's subzone. But what he overlooks
5 to do is to remind you that on the 5th of July - as you have been
6 reminded - 1998, Ramush Haradinaj ordered that Lahi Brahimaj be replaced
7 as the commander. That's at P218. And that on the evidence that he did
8 precisely march into Jabllanice at the time that it was said that he
9 ordered the release of Skender Kuqi and that he directed Nazmi Brahimaj
10 to order to release him.
11 So, the evidence does show that he was exerting control over what
12 was happening in Jabllanice at the time, and it's consistent also with
13 Exhibits P204, which is a minute of a direction on the 1st of July, 1998,
14 concerning resupply; it's consistent with P211, the 4th of July reprimand
15 issued to Lahi Brahimaj; and also to P242 and 248, orders relating to the
16 formation dated the 11th and 12th of July of the brigades which included
17 the 2nd Brigade and its battalions and commanders, and that brigade was
18 responsible for Jabllanice.
19 Your Honours, turning on to my fourth point, Mr. Guy-Smith and,
20 indeed, Mr. Harvey referred to the quote from Colonel Crosland referring
21 to the aims of the KLA as a whole and takes issue with the matter
22 relating to the murder of the six Albanian sympathisers, and they suggest
23 that we have sought to mislead. But only part of the evidence of
24 Colonel Crosland was quoted back to you, and the part of his evidence
25 that is of significance immediately before the part quoted by
1 Mr. Guy-Smith comes this. It's at P9. It's from the Limaj testimony at
2 page 1882 and the question comes:
3 "Q. Now the six bodies that were found in a forest near Orahovac
4 on the 6th of April, do you know anything about that event?
5 "A. Yes, Your Honours. We were called to Orahovac which is a
6 town in the middle here. It is actually the centre of the Bajrak and
7 brewing industry and therefore extremely popular with everyone concerned.
8 Mainly an Albanian town with Serbian businesses in it as well, and
9 throughout the conflict the attitude of most of the businessmen there was
10 that they would wish to get on with making money and distilling their
11 wine and brandy and for everyone to take their grubby little fight
12 elsewhere." Is the way he put it. "So it is highly likely that these
13 gentlemen concerned were killed because they were not helping the
14 Albanian cause at the time."
15 And then he was asked:
16 "Did you see the bodies ...?"
17 He said:
18 [As read] "We did see the bodies, but there was really no
19 conclusive evidence as to how they came there and who had shot them ...
20 and ... this was part of the fluid situation."
21 Your Honours, we submit that the evidence is clear when talking
22 about these events that, certainly from Mr. Crosland's view, that he
23 considered it was highly likely that the persons that killed them were
24 those that were not helping -- because they were considered to not be
25 helping the Albanian cause, which is consistent with the comment that he
1 had made earlier.
2 It's a matter for Your Honours in due course as to how you deal
3 with it.
4 JUDGE MOLOTO: We certainly will deal with it.
5 MR. ROGERS: At paragraphs -- sorry, the Defence also raised
6 issue relating to the documents, the UNMIK documents --
7 JUDGE MOLOTO: We are now into the time of the interpreters.
8 MR. ROGERS: Yes.
9 JUDGE MOLOTO: Shall we -- are you sure you're going to do no
10 more than ten minutes? You've taken ten to finish four points. I just
11 need to differ to them.
12 MR. ROGERS: Should we take a short break and deal with it
13 perhaps a little later this afternoon?
14 JUDGE MOLOTO: A short break.
15 MR. ROGERS: Because I really haven't got much more.
16 JUDGE MOLOTO: Okay. We'll come back at quarter past 2.00 then.
17 Court adjourned.
18 MR. HARVEY: Your Honours, I'm sorry.
19 JUDGE MOLOTO: Yes, Mr. Harvey.
20 MR. HARVEY: I hope that I shall be able to stay. Based on the
21 Tribunal's timetable, I had planned this morning originally -- I had an
22 urgent matter I had to attend to in London and I had a flight booked.
23 It's -- I've now pushed it to as late as possible this afternoon as I
24 can, but if I -- I simply must be in London if -- if at all humanly
25 possible, and I hope nobody would think it discourteous to the Tribunal
1 or -- or to Mr. Rogers if I were to leave Mr. Troop in charge, in his
2 very comparable hands.
3 JUDGE MOLOTO: Certainly not.
4 MR. HARVEY: I will try to stay, but I'll speak to him how long
5 he's going to be.
6 JUDGE MOLOTO: Fair enough. Fair enough. Thank you so much.
7 You are excused if you have to go.
8 MR. HARVEY: Thank you so kindly.
9 JUDGE MOLOTO: Thank you so much.
10 Court adjourned, quarter past 2.00.
11 --- Recess taken at 1.49 p.m.
12 --- On resuming at 2.15 p.m.
13 JUDGE MOLOTO: Yes, Mr. Rogers.
14 MR. ROGERS: Thank you, Your Honour. Just a few more points if I
16 In relation to the UNMIK documents, employment documents, and
17 weapons charges and the like that were referred to, Your Honours of
18 course will remember the purpose for which they were adduced, which was
19 to enable the Court to follow the record of questions that were put, not
20 for the truth of their contents. And unless the witness has accepted any
21 part of them, then they have no evidential value. So clearly Your
22 Honours will need to carefully look at the part of the record that deals
23 with the documents as they were put during the course of
24 cross-examination to extract from it what, if anything, he actually
25 accepted. And my recollection - we haven't had the time to go back
1 through all of it - is that he didn't accept very much, if anything, from
2 them. But don't take my word for it, as it were. Have a look at what
3 was said and see to the extent to which anything was adopted and then
4 that will be -- of course, that can then be used in the record, but
5 nothing else from it can.
6 One as the aspects was whether it could establish a time-frame.
7 For example, for 2002, 1998 to 2002, but my recollection, looking back at
8 the record, is that the witness didn't accept the document that was being
9 put to him. I just want to make that small point.
10 Can I address, please, some of the issues raised in the
11 supplemental -- well, I won't call it filing, but in the supplemental
12 document that was hand up by Mr. Haradinaj. Your Honours, we don't have
13 time today to go through all of them. I just wanted to pick out a few.
14 In relation to point 4, it's suggested that -- the issue that's
15 taken is that we have said people could not go to Albania and procure
16 weapons without the knowledge of Mr. Haradinaj, and then a reference is
17 made in this document to evidence in the retrial.
18 Your Honours, there are a number of aspects to this, but in
19 particular, Mr. Haradinaj asserts that Skender Rexhahmetaj testified that
20 their village took their own initiative to get weapons from Albania. In
21 support of that remark, they cite to transcript T103120 [sic] to 10333,
22 but nowhere in that evidence, 103120 [sic] to 1033 [sic] does
23 Mr. Rexhahmetaj suggest that the people from his village travelled
24 without the knowledge and assistance of Mr. Haradinaj.
25 There is also another document which is P297, which is one of
1 the -- in the record, which is one of the statements given by
2 Mr. Rexhahmetaj admitted pursuant to Rule 92 ter, and in that --
3 JUDGE MOLOTO: I think the question to ask is: Is there evidence
4 where we -- we are told that people left with Mr. Haradinaj's consent or
5 with Mr. Haradinaj's --
6 MR. ROGERS: Well, Your Honour, we say --
7 JUDGE MOLOTO: -- knowledge and consent.
8 MR. ROGERS: Yes. The inference comes particularly from
9 Rexhahmetaj at P29 --
10 JUDGE MOLOTO: It's an inference.
11 MR. ROGERS: -- paragraph 7 to 9.
12 JUDGE MOLOTO: Uh-huh.
13 MR. ROGERS: And it says:
14 "In order to organise the village defence, we worked with the
15 Glodjan HQ to get to -- in order to get weapons. We organised groups
16 across the border and get weapons in Albania. When the Serbs attacked
17 Isniq on 29 May 1998 we, were very well-organised."
18 Paragraph 8.
19 JUDGE MOLOTO: And who are the "we"? Who organised?
20 MR. ROGERS: The KLA.
21 "Villagers who wanted to organise a village defence this their
22 villages went to see Ramush. Those at the Glodjan headquarter had
23 experience in getting weapons from Albania. They knew the safe routes to
24 cross into Albania. In the beginning, we sent three groups from Isniq
25 through Glodjan to get weapons. The arming was an organised operation.
1 I don't know who co-ordinated the operation. In early 1998, a group of
2 nine or ten from Isniq went to Glodjan. They joined a group of 250
3 people and were led by Ramush to get weapons from Albania."
4 Your Honours -- and there's also paragraph 9. So, you know, as
5 I'm sure Your Honours understand, one has to look at the totality of all
6 of the evidence, all of the documents and all of the transcript that has
7 been admitted from the various witnesses and the parties -- I was going
8 to make this point at the end, but it may be a sensible point to make
9 right now.
10 The parties, of course, pick and make their representations based
11 upon what's available in the record, and as one would in a jury case, as
12 Judges often direct a jury that it's not with we say that matters at the
13 end of the day. What matters is your assessment of the totality of the
14 evidence. What we say is not evidence in the case. It's your assessment
15 of the totality of the evidence that matters, and what we are doing is
16 making an argument, and by -- and referring --
17 JUDGE MOLOTO: [Overlapping speakers] [Microphone not
18 activated]... cherry-picking, all of you, and -- as you go along.
19 MR. ROGERS: Pardon, Your Honour?
20 JUDGE MOLOTO: And all [Realtime transcript read in error "you
21 will"] of you cherry-picking as you go along.
22 MR. ROGERS: And, Your Honours, we're all taking things to make
23 the argument.
24 JUDGE MOLOTO: Sure.
25 MR. ROGERS: To seek to --
1 JUDGE MOLOTO: We understand --
2 MR. ROGERS: -- to present the evidence.
3 JUDGE MOLOTO: We understand that.
4 MR. ROGERS: Okay. Your Honours, and I -- I hope we're not
5 unfairly doing that. That's certainly not an intention, and it has been
7 Your Honours, at paragraph -- point 8, again I just wanted to
8 touch it. At point 8 that is made in the supplemental document --
9 JUDGE MOLOTO: While you are looking for that, I just want to
10 correct how I'm recorded here. I said, "And you are all," and I was
11 referring to both sides, "cherry picking." I was not referring to one
12 side only. So I just want to make sure that I'm recorded correctly.
13 MR. ROGERS: Yes. Now, at paragraph 8 in the point -- the
14 supplemental document refers to paragraph 31 the brief, and the complaint
15 that's raised is relating to Mr. Haradinaj working closely with
16 Mr. Balaj, and Mr. Haradinaj controlling the deployment of the
17 Black Eagles, and there are some references raised there by
18 Mr. Haradinaj's counsel.
19 Your Honours, we would just direct your attention, in addition to
20 the materials already available, to the unchallenged evidence at
21 paragraph 21 of Mr. Rexhahmetaj 's 92 ter statement exhibited at P297
22 where Mr. Rexhahmetaj stated that:
23 "Had I needed Toger's assistance, I would have had to contact
24 Ramush. Ramush had to organise any deployment of Togar's -- Toger's
1 And in respect to the close relationship between Haradinaj and
2 Balaj, Mr. Haradinaj doesn't refer specifically to Witness 17's evidence
3 at transcript T -- T7557 of P342 that:
4 "Meetings that we had were directly with Ramush while Idriz Balaj
5 accompanied him, and he was responsible for his security during the
6 travel to and back from the meeting."
7 And also a further reference at T7558 of P432 where he says:
8 "The Black Eagles were the special unit of the Kosovo Liberation
9 Army that was under Ramush's command. At every meeting, the travels to
10 Jasic and later in Prapaqan and in Lluk the arrival at Baran, the oath
11 that the brigade took, this solemn event, on all these occasions Idriz
12 Balaj was present, too, in the capacity of the person responsible for
14 And then there is -- I just -- I won't read it, but I'll direct
15 you to it. Paragraph 15 of the statement, exhibited as P344 under
16 seal -- sorry, I think I said P432 I. Meant earlier P342. The T77 --
17 T -- start again. The T7558 reference is of P342.
18 And then in paragraph 15 of the statement exhibited at P344 under
19 seal, there is some further information which should be taken into
20 account. And also Skender Rexhahmetaj, at paragraph 41 of his 92 ter
21 statement, exhibited as P298, says:
22 "You could see at the meetings that Togeri was close to
23 Ramush Haradinaj. I think they spent time together and that this
24 closeness partly stemmed from that."
25 There is also evidence from Rrustem Tetaj and Shemsedin Cekaj who
1 testified to having met Haradinaj in April 1998 and confirmed that Balaj
2 was with him during those meetings. The underlying evidence for that is
3 cited at paragraph 32 of the brief.
4 Your Honours, also point -- I just picked a few. Point 23.
5 There is a reference in point 23 relating to Mr. Haradinaj appointing
6 soldiers to serve in Jabllanice. I've partly answered this already in --
7 in the submissions I made earlier relating to the formation of the
8 2nd Brigade.
9 And P242 is an order which shows that on the 11th of July,
10 Mr. Haradinaj appointed Shemsedin Cekaj to form the 2nd Brigade in the
11 zone which covered Jabllanice.
12 And P248 is an order of the 12th of July issued by Mr. Haradinaj
13 appointing those who would serve under Cekaj in that brigade. Amongst
14 those was Driton Zeneli, who was to sever as the commander of the
15 2nd Battalion. And Bislim Zyrapi also testified that he visited
16 Jabllanice in mid-July, and indicated at transcript 685 that:
17 "When I visited Jabllanice after the meeting of the General Staff
18 and the Staffs from the operative zones, alongside me when inspecting
19 those units was Sali Veseli, and if I remember correctly at the time,
20 Driton Zeneli as well."
21 And Zyrapi confirmed at T685 that Zeneli reported to Haradinaj.
22 Clearly, he was already operating in Jabllanice on the basis of the
23 orders of the 11th and 12th of July.
24 Your Honours, then just touching the Witness 66 point that
25 Mr. Harvey raised relating to the time and date that Witness 66 refers
1 to, it's right that he did give a date of the 19th of May, but when he
2 was questioned about when the witnesses went -- when the victims
3 disappeared, he was questioned at some length about this. It's at P106,
4 and the transcript references in that exhibit are at 8423 to 8434. And
5 he made it clear under -- having been asked several times about this, he
6 was asked at 8433 -- in fact, just come back just slightly before that.
7 Forgive me a moment. In fact, I'll go back to 8432.
8 "Q. ... on the day that the three men went missing, was there any
9 shelling in the area?
10 "A. About four or five days later in their village. ...
11 "THE INTERPRETER: It's not --"
12 "THE INTERPRETER: There was no --" [sic] --
13 Question --
14 "THE INTERPRETER: It's not clear whether the shelling lasted
15 four or was it four days."
16 Judge Orie asked to repeat the question. There was some to'ing
17 and fro'ing between counsel, and then we get to the 8433 as to -- to try
18 to clarify this. So the witness said:
19 "THE WITNESS: [Interpretation] So after they went missing, four
20 or five days later there was nonstop shelling."
21 And Judge Orie said:
22 "JUDGE ORIE: Yes. During all these days or did it start four or
23 five days after they went missing?
24 "THE WITNESS: [Interpretation] Four or five days elapsed before
25 the shelling starting.
1 "JUDGE ORIE: That's clear. And now Ms. Gustafson will you ask
2 more detail where the shelling took place."
3 JUDGE MOLOTO: What do we understand from that? Do we
4 understand, then, that they went missing four or five days after the
5 19th of May.
6 MR. ROGERS: No, before the 19th of May.
7 JUDGE MOLOTO: But that meant that's -- that's --
8 MR. ROGERS: [Overlapping speakers] When the shelling started.
9 JUDGE MOLOTO: That question -- that answers Judge Orie's
10 question --
11 MR. ROGERS: Yes.
12 JUDGE MOLOTO: -- to clarify?
13 MR. ROGERS: Before the shelling started.
14 JUDGE MOLOTO: Just -- just read it again.
15 MR. ROGERS: I'm sorry.
16 JUDGE MOLOTO: Just read the question and the answer.
17 MR. ROGERS:
18 "JUDGE ORIE: ... During all these days or did it start four or
19 five days after they went missing?"
20 JUDGE MOLOTO: That's right, after.
21 MR. ROGERS: "THE WITNESS: [Interpretation] Four or five days
22 elapsed before the shelling started."
23 I.e., after they went missing.
24 JUDGE MOLOTO: Yeah. So they -- they went missing four or five
25 days -- now, we know that the shelling started on 19th.
1 MR. ROGERS: Well, 19, 20, 21st, sometime around there.
2 JUDGE MOLOTO: So they went missing --
3 MR. ROGERS: Before.
4 JUDGE MOLOTO: -- four or five days before then.
5 MR. ROGERS: Yes. Correct. That's the argument that we've made,
6 and this is -- this is the -- this is the evidence, along with the other
7 evidence of Witness 3 and Witness 80, that supports the timing of the
8 missing of -- of the victims. And it goes on. I won't read it all, but
9 there is more that deals with that issue at 8434.
10 Your Honours, there was a suggestion made at some point by
11 Mr. Harvey relating to -- to prior acquittals, but I'm sure I don't need
12 to say in the context of this retrial it's the evidence in this case upon
13 which Your Honours will make the determinations relating to the counts
14 and not on the basis of anything that may have happened in any other
15 trial on any other occasion.
16 JUDGE MOLOTO: Except at that we've got to take care of
17 res judicata and "autrefois acquit" and "autrefois convict," shouldn't
19 MR. ROGERS: I'm, sorry, I didn't --
20 JUDGE MOLOTO: We should -- we should --
21 MR. ROGERS: Res judicata.
22 JUDGE MOLOTO: Indeed. On issues that have not been appealed.
23 MR. ROGERS: Your Honours, for matters that are in issue before
24 you in this case, then res judicata cannot arise.
25 JUDGE MOLOTO: No, no. Res judicata cannot arise on the counts,
1 but as I understood what Mr. Harvey was saying, he was saying -- he was
2 talking specifically about those issues on which the first trial has
3 given a final judgement and were not appealed, and -- and I understand
4 that the issues before us are things that have been sent back to us.
5 MR. ROGERS: Yes.
6 JUDGE MOLOTO: And the impression I -- he left me with was that
7 things have slipped in which shouldn't have slipped in, and we were going
8 to look with a very fine comb whether there were anything that slipped in
9 that shouldn't have been in, and we would point it out if it is there.
10 If it is not there, of course there's no res judicata, and there's no
11 "autrefois acquit" or "autrefois convict."
12 MR. ROGERS: No. I -- that may be relevant for some of the
13 counts for which convictions have already been entered, but in terms of
14 the time-frame of the -- of this indictment and all of the issues that
15 are connected with whether a JCE existed or not, what the accused were or
16 were not doing in relation to the counts, those are live, because those
17 are issues that you have to determine in relation to -- to what -- what
18 was going on, whether there was or wasn't a joint criminal enterprise and
19 the like.
20 JUDGE MOLOTO: Okay. We hear you. We are heard him. When -- we
21 hear both of you.
22 MR. ROGERS: Your Honours, really those are all the submissions
23 that I would wish to make unless there are any things that my colleagues
24 think I should [indiscernible].
25 [Prosecution counsel confer]
1 MR. ROGERS: Oh, I omitted -- I meant to deal with point 6 also
2 of Mr. Haradinaj's list. If I omitted to do that, can I just deal with
3 that? That's the issue relating to the appointment of Din Krasniqi.
4 And, Your Honours, we again direct you to some further material on this
5 issue. First of all, as Exhibit P347, where Mr. Hasanaj states that:
6 "Ramush Haradinaj came to Vranoq on many occasions. He came to
7 announce the appointment of Din Krasniqi as commander of the Lugu i Baran
8 region, which included about 25 villages, including Vranoq, in mid-April.
9 These representatives have been sent from our village to Glodjan to ask
10 Ramush Haradinaj's approval for this appointment."
11 He then also dealt with that little more in P36, at T8743, when
12 he said he'd only heard that three people had gone to Ramush and didn't
13 know whether they had met him or how it was resolved, but went on to
14 confirm that Din Krasniqi became the commander. "And then, of course, we
15 all supposed that this was done with the approval of Ramush," end quote.
16 Now, consistent with that position -- proposition for
17 Din Krasniqi's appointment comes from Witness 17, who testified in P344,
18 at transcript 7659 to 7660, that Din Krasniqi said that he had been
19 appointed by Ramush.
20 "He told me that on the 12th of July when I arrived Vranoq and
21 when we had the meeting with the commanders of the villages and with
23 I'm sorry, P342. I misspoke. And there's also further reference
24 at transcript 5741 of P52.
25 Your Honours, the final point that I would make very briefly is
1 in relation to the -- Mr. Harvey made the point about the crossroads.
2 You will recall him saying that if the shelling -- there was fighting
3 going on on the 19th of May, it would be difficult to get from Dollc to
4 Grabanice, which is why if it wasn't going on three or four days earlier,
5 perhaps it was easier to get from Dollc to Grabanice, hence their
6 appearance in the village. It's just a thought. It may be something
7 Your Honours wish to take into account in due course.
8 Your Honours, those, I'm pleased to say, are all of the
9 submissions that I would wish to make.
10 JUDGE MOLOTO: Thank you, Mr. Rogers.
11 Yes, Mr. -- I did suspect that a rejoinder might come.
12 MR. DIXON: Thank you, Your Honours. It will be a very, very
13 brief rejoinder just in response to some of the points that Mr. Rogers
14 has raised. The first in relation to the alleged presence in the
15 compound area.
16 Mr. Rogers cited, I think, over a hundred pages of the transcript
17 as authority for that. There is simply no evidence that in relation to
18 the fleeting moment that Witness X, as we referred to him now, whether
19 Witness X says that Mr. Haradinaj was there. There's simply no evidence
20 that that occurred in the compound area or the barracks area. And I
21 refer to the specific transcript pages where he discusses this particular
22 incident, and that's firstly 2382, and then an earlier reference 2349,
23 and then transcript 2420 to 2421 is where he discusses only seeing him
24 very, very briefly. And when those actual transcript pages are looked
25 at, it simply doesn't support allegation that Mr. Rogers is now making.
1 JUDGE MOLOTO: But hadn't -- hadn't he somewhere else told us
2 where he were -- where they were generally?
3 MR. DIXON: Yes. That's in T2349.
4 JUDGE MOLOTO: Where did he say they were?
5 MR. DIXON: He just said the headquarters generally. He did not
6 specify in any detail that it was the compound or the barracks or any
7 particular area.
8 In relation to the incident with Skender Kuqi, he specifically
9 said that took place in the Staff, and that's at T2374.
10 JUDGE MOLOTO: But where would the headquarters be?
11 MR. DIXON: Your Honours, I would refer you to paragraph 93 of
12 our final brief where we list the evidence of other witnesses about the
13 location of the headquarters, and you'll see at 93(D) that Mr. Zyrapi,
14 who testified that he went to Jabllanice in mid-July, said that the KLA
15 command post he believed was situated in Mr. Lahi Brahimaj's house and
16 that that's where the meeting took place and that he was then shown
17 various other positions in -- in the village.
18 Pjeter Shala, and this is at 93(A), said that it was about a five
19 to seven minute walk from Mr. Lahi Brahimaj's house to the barracks
20 building. That was at the entrance of the village, whereas
21 Mr. Brahimaj's house was in the heart of the village, and that was about
22 seven -- five to seven minutes' walk away. And we've then listed the
23 evidence which shows that on each occasion when Mr. Haradinaj, it is
24 said, was in Jabllanice, he wasn't, in fact. There's no evidence, in
25 fact, that he was at the compound area.
1 JUDGE MOLOTO: Can I ask a question? The premises that we have
2 been shown through the trial --
3 MR. DIXON: Yes.
4 JUDGE MOLOTO: -- showing the two buildings with a yard and a
5 building that is alleged to have had water, what is that called?
6 MR. DIXON: That's called the compound area or the barracks area.
7 That's at the entrance of the village, and then five to seven minutes
8 away into the heart of the village is where the houses are, and that's
9 where Mr. Zyrapi says that the command post was situated or the Staff --
10 JUDGE MOLOTO: But -- but --
11 MR. DIXON: -- which is where meetings took place according to
12 the evidence that we've listed.
13 JUDGE MOLOTO: But then any detainee -- okay. On this day, he
14 was -- this person was not a detainee.
15 MR. DIXON: No, and there's no evidence what I'm saying --
16 JUDGE MOLOTO: He -- they had been brought from wherever together
17 with the 20 to 30 people. Now, is the position of Mr. Haradinaj's
18 Defence that these people were brought to Lahi Brahimaj's house, which
19 was the headquarters, according to you?
20 MR. DIXON: No. Our position is that when you look at the
21 evidence that Witness X gives about where this all happened, there was
22 this fleeting moment in late May where he saw Mr. Haradinaj. There's no
23 description in the evidence of where that exactly takes place. And
24 that's why it's wrong for Mr. Rogers to say, "Oh, he's given evidence
25 very clearly that this all took place in the compound and the barracks
1 where detainees were." There's no evidence. That's the fundamental
2 point Mr. Emmerson was making yesterday, that there's no evidence to show
3 that on that occasion, that fleeting moment, that that took place where
4 anyone was detained, and that therefore the Prosecution can't draw any
5 inference that Mr. Haradinaj must have known that there was a detention
6 facility or people were detained there.
7 JUDGE MOLOTO: Okay. Okay. Thank you.
8 MR. DIXON: Thank you, Your Honour. That's the first point.
9 The second, very briefly, is in relation to the list with
10 Skender Kuqi's name on. Mr. Rogers cited to various parts of his 92 ter
11 statement and then evidence in chief.
12 What Mr. Emmerson referred to yesterday was the cross-examination
13 where those particular allegations were scrutinised, and the witness said
14 very clearly - we saw the video of it - very clearly that he didn't know
15 who gave him this list, but he didn't believe that it had anything to do
16 with criminal activities and that he didn't pass this information on to
17 anyone, including Mr. Haradinaj.
18 So it's -- it's in that context that we were trying to show the
19 Trial Chamber that it's so important not just to look at the 92 ter
20 statement, just pick out that one paragraph, or what he might have said
21 in examination-in-chief. It's the whole of the evidence that needs to be
22 looked at, because when that was considered, he made it abundantly clear
23 that he didn't know where this list came from. In fact, as was also
24 pointed out, it was recorded below the appointment of FARK military
25 police officers. The appointment of that unit was the entry above that.
1 So there is an inference that can be made that it might have related to
2 FARK, but, really, the bottom line, in our submission, was that that was
3 the evidence he gave at the end of it, when it was all considered, he
4 couldn't say where that list had come from. And therefore, for the
5 Prosecution to cite his evidence as a firm basis to infer that it's a KLA
6 blacklist that was circulated --
7 JUDGE MOLOTO: To cite his evidence in chief, either in -- by way
8 of an statement or way of evidence in chief in proper.
9 MR. DIXON: Precisely. And that -- that is misleading not to
10 cite his evidence in chief if you're going to rely upon it for a central
11 allegation that this is a list that was circulating that had led to
12 certain people disappearing who -- who are charged on the indictment.
13 JUDGE MOLOTO: Okay.
14 MR. DIXON: So I just wanted to clarify that was the point we
15 were making yesterday. And exactly the same applies to the list of
16 allegations that were handed up to Your Honours yesterday. Many of them
17 were referred to in Mr. Emmerson's closing speech, some of them not, but
18 the reason why we have submitted this, and it's not comprehensive, it
19 doesn't cover every single allegation, but it's to ensure that if an
20 allegation is made by the Prosecution, that the full evidence, not just
21 the 92 ter or part of the evidence, is brought to Your Honours'
23 In that sense, we hope that it can assess. It doesn't only refer
24 to the evidence of one witness. It may refer to other witnesses to show
25 that really it's important that not only the totality of one witness is
1 looked at but all of the evidence, when put together, does it support the
2 allegation that is made by the Prosecution or not? And that is why we
3 have headed the list -- it's both -- inaccuracies. They are things that
4 are just blatantly wrong. But then also there is evidence that might
5 have been selectively or it has been selectively taken, and it's
6 important that the totality of the evidence is looked at in order that
7 the allegation can be exposed for what it is, that it doesn't support,
8 when the evidence is looked at as a whole, what the Prosecution is
10 Then the final point that I wanted to -- to mention was in
11 relation, Your Honours, to the order of the 5th of July that -- that
12 Mr. Rogers referred to with Mr. Brahimaj being replaced. We've dealt
13 with this in our brief at paragraph 123, and it's clearly set out there
14 that while we say this order reflects Mr. Haradinaj's authority over
15 appointments to that joint structure that was created on the 23rd of
16 June, it in no way implies close knowledge or de facto day-to-day control
17 over the activities that were continuing in Jabllanice, and certainly it
18 does not imply any knowledge of detention or ill-treatment there. It
19 shows authority over the zonal structure, the appointment of persons
20 within that structure. Mr. Brahimaj was the deputy commander as the
21 evidence shows, but you can't infer from that that therefore he had
22 authority over the specific areas, each and every one of them. The
23 evidence is that he could not command each and every area and did not, in
24 reality, do that. And that's what we were emphasising throughout the
25 submissions yesterday, the horizontal nature in which things continued
1 even after the 23rd of June. So I just wish to emphasise that aspect of
2 our submission again, Your Honour.
3 Your Honours, finally if I can just make one correction for the
4 record. Mr. Harvey said that Mr. Emmerson made an error in referring to
5 what was said in relation to the Skender Kuqi incident. He said this at
6 page 52, line 1, today.
7 In fact, Mr. Emmerson was correct in referring to the evidence of
8 what Witness X said. He made that reference to the evidence at
9 page 2809, line 15, on Monday. That's the correct transcript page, and
10 it does accurately reflect what Witness X did say. So there was no need
11 to correct it. I just wanted to make sure that that was properly cited
12 for -- for the record.
13 Thank you, Your Honour. Those are our submission.
14 JUDGE MOLOTO: You don't want to quote what he said on Monday?
15 MR. DIXON: He said:
16 "As to the second occasion," this is Witness X, "says he once saw
17 Mr. Haradinaj remonstrating with Lahi Brahimaj about the ill-treatment of
18 Skender Kuqi." So that was coming from -- from Witness X. I mean, I
19 should add that it was just before that that Mr. Emmerson indicated that
20 the allegations that had been made about Mr. Brahimaj and Mr. Balaj were
21 for other persons to address and that he went on to look at the
22 allegations in relation to Mr. Haradinaj specifically and then he quoted
23 his evidence. And he has actually quoted it correctly is the point I'm
24 just making for the record.
25 JUDGE MOLOTO: Thank you so much.
1 MR. DIXON: Thank you, Your Honour.
2 MR. ROGERS: Your Honours, may I just narrow that range down? I
3 did --
4 JUDGE MOLOTO: [Overlapping speakers]. Just before -- just
5 before you do that, let's just exhaust the entire Defence in terms of --
6 MR. ROGERS: [Overlapping speakers] Certainly. I just wanted --
7 JUDGE MOLOTO: -- their rejoinder.
8 MR. ROGERS: -- to -- I thought maybe now was a good moment. If
9 you would prefer not --
10 JUDGE MOLOTO: Well, I --
11 MR. ROGERS: -- I'll do it --
12 JUDGE MOLOTO: Yeah. I would prefer it a little later.
13 MR. ROGERS: Okay.
14 JUDGE MOLOTO: Do you have any -- I don't believe you have
15 anything to say Mr. --
16 MR. GUY-SMITH: Yes.
17 JUDGE MOLOTO: You do?
18 MR. GUY-SMITH: I do. Ever so briefly. Once again, we're back
19 with Witness 66. I think what is painfully evident is that the Chamber
20 needs to read the entirety of this witness's testimony.
21 JUDGE MOLOTO: The Chamber will read the entire of the
23 MR. GUY-SMITH: At page 8422 so there is no mistake with regard
24 to what this witness actually testified to:
25 "Q. Witness, when was the last time you saw your cousin, and I'd
1 like to remind you not to mention his name.
2 "A. On the 19th of May, 1998, that was the last time I saw him.
3 "Q. And what was he doing when you last saw him?
4 "A. He was grinding corn, and then he placed it in a sack. He
5 was milling the corn, and then he went on, on to the mill to do that."
6 And his testimony continues from that point.
7 JUDGE MOLOTO: Thank you, Mr. Guy-Smith.
8 Mr. Troop.
9 MR. TROOP: Your Honours, on behalf Mr. Brahimaj, we don't have
10 anything further to add.
11 JUDGE MOLOTO: Thank you very much, Mr. Troop.
12 Yes, Mr. Rogers.
13 MR. ROGERS: Your Honours, thank you. Can I just narrow that
14 reference that I gave you for the headquarters point. From 2333 to 2361
15 will give you -- in fact -- yes, 2361 will give you a fair amount of
16 that, and there is more, in fact, going on from there, 2368. We've --
17 until 223 -- in fact, 2386. It's dealt with in a number of places, and
18 those are the two main places.
19 JUDGE MOLOTO: Thank you, Mr. Rogers.
20 I guess we can adjourn. We shall adjourn to a date to be set for
21 judgement. Court adjourned.
22 --- Whereupon the hearing adjourned at 2.53 p.m.,
23 sine die.