1 Thursday, 29 November 2012
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.00 a.m.
6 JUDGE MOLOTO: Good morning to everybody in and around the
8 Mr. Registrar, please call the case.
9 THE REGISTRAR: Good morning, Your Honours. This is case number
10 IT-04-84bis-T, the Prosecutor versus Ramush Haradinaj, Idriz Balaj, and
11 Lahi Brahimaj.
12 JUDGE MOLOTO: Thank you very much, Mr. Registrar.
13 Could we have appearances, please, for the day starting with the
15 MR. ROGERS: Yes, good morning, Your Honours. Paul Rogers for
16 the Prosecution, together with Ms. Daniela Kravetz, Aditya Menon, and
17 Priya Gopalan, and our case manager today, Ms. Line Pedersen.
18 JUDGE MOLOTO: And for the Defence of Mr. Haradinaj.
19 MR. EMMERSON: Good morning, Your Honours. Ben Emmerson for
20 Ramush Haradinaj, together with Rod Dixon, Andrew Strong, Annie O'Reilly,
21 and Kerrie Rowan.
22 JUDGE MOLOTO: And for Mr. Balaj?
23 MR. GUY-SMITH: Good morning, Your Honours. Chad Mair, Gentian
24 Zyberi, Colleen Rohan, and I'm Gregor Guy-Smith on behalf of Idriz Balaj.
25 JUDGE MOLOTO: And for Mr. Brahimaj.
1 MR. HARVEY: Good morning, Your Honours. Richard Harvey with
2 Paul Troop, with Rudina Jasini, and with Sophie Rigney for Mr. Brahimaj.
3 JUDGE MOLOTO: Thank you very much, Mr. Harvey.
4 This Chamber is sitting today to deliver judgement in the trial
5 of the three accused persons, Ramush Haradinaj, Idriz Balaj, and
6 Lahi Brahimaj. For the purposes of this hearing, the Chamber will
7 summarise briefly its findings, emphasizing that this is a summary only
8 and that the only authoritative account of the Chamber's findings and its
9 reasons for those findings is to be found in the written judgement,
10 copies of which will be made available to the parties at the conclusion
11 of this sitting.
12 The three accused, Ramush Haradinaj, Idriz Balaj, and
13 Lahi Brahimaj, are charged as members of a joint criminal enterprise or,
14 alternatively, under other modes of individual criminal responsibility,
15 with crimes allegedly committed by them or by other members of the Kosovo
16 Liberation Army in 1998 against Kosovo Serbs, Kosovo Roma/Egyptian
17 people, Kosovo Albanian or other civilians in a compound of the
18 Kosovo Liberation Army in the village of Jabllanice in Djakovica
19 municipality, western Kosovo. I will refer from now on to the Kosovo
20 Liberation Army as the KLA.
21 The indictment alleges specific incidents of abduction of a total
22 of 16 Kosovo Albanians, Kosovo Serbs, Kosovo Roma, or other civilians,
23 who, it is alleged, were detained and subjected to torture and cruel
24 treatment at the KLA compound in Jabllanice. It is further alleged that
25 eight of these individuals were killed while in KLA custody. These
1 allegations form the basis of six counts of violations of the laws or
2 customs of war, namely, cruel treatment, torture, and murder, charged
3 under Article 3 of the Statute against Ramush Haradinaj and Idriz Balaj.
4 Lahi Brahimaj is charged with four of these counts.
5 This case is a partial re-trial. The three accused who were
6 charged initially in the case of Prosecutor versus Haradinaj et al., case
7 number IT-04-84 on the 4th of March, 2005, with 16 counts of crimes
8 against humanity and 19 counts of violations of the laws or customs of
9 war. Ramush Haradinaj was also charged with one further count of crimes
10 against humanity and one further count of violations of the laws or
11 customs of war. On the 3rd of April, 2008, the Trial Chamber acquitted
12 Ramush Haradinaj and Idriz Balaj of all charges in the indictment, found
13 Lahi Brahimaj guilty of two counts, sentenced him to six years'
14 imprisonment, and acquitted him of all other charges. The Prosecution
15 appealed the trial judgement, alleging, inter alia, that the
16 Trial Chamber breached its right to a fair trial by not allowing it
17 additional time to secure the evidence of two critical witnesses and
18 asked for a re-trial.
19 On the 21st of July, 2010, the Appeals Chamber, Judge Robinson
20 dissenting, granted in part the Prosecution's appeal and quashed the
21 Trial Chamber's decisions to acquit the accused of certain counts in the
22 indictment related to crimes alleged to have been committed at the KLA
23 compound in Jabllanice. The Appeals Chamber ordered a partial re-trial
24 with respect to the these counts. The trial commenced on the 18th of
25 August, 2011. The Chamber received evidence from 56 witnesses, including
1 the two witnesses with respect to whom the re-trial was ordered.
2 The present indictment alleges that at the material time
3 Ramush Haradinaj was a commander of the KLA Dukagjin Operational Zone in
4 western Kosovo and that, as such, he had overall command of the KLA
5 forces in this area. Idriz Balaj is alleged to have been a member of the
6 KLA, a direct subordinate to Ramush Haradinaj, and the commander of a
7 rapid intervention special unit known as the Black Eagles. Lahi Brahimaj
8 is alleged to have been a member of the KLA stationed at Jabllanice
9 throughout the indictment period and a subordinate to Ramush Haradinaj.
10 Lahi Brahimaj is alleged to have served briefly as deputy commander of
11 the Dukagjin Operational Zone and subsequently as a finance director of
12 the KLA General Staff.
13 With respect to the six counts of the violation of the laws or
14 customs of war charged in the indictment, the Chamber made the following
15 findings, and I start with Count 3:
16 On the 13th of June, 1998, Witness 6, a Catholic Kosovo Albanian
17 was abducted by KLA soldiers from the road between Djakovica and Klina.
18 He was detained in the KLA compound in Jabllanice for approximately six
19 weeks where he was subjected to repeated beatings by KLA soldiers
20 including Nazmi Brahimaj, Lahi Brahimaj, and Hamza Brahimaj. Witness 6
21 was accused of consorting with Serbs and spying. On the 25th of July,
22 1998, Witness 6 was released from the KLA compound in Jabllanice by
23 Nazmi Brahimaj. The Chamber is satisfied that the charges of torture and
24 cruel treatment of Witness are established. This count is not charged
25 against Lahi Brahimaj in this re-trial.
1 Count 4, again on the 13th of June, 1998, Nenad Remistar, a
2 traffic policeman of Serb ethnicity, was removed from his vehicle by KLA
3 soldiers on the road between Klina and Djakovica. He was taken to the
4 KLA compound in Jabllanice. There, he was severely beaten by
5 Nazmi Brahimaj and other KLA soldiers. On the following day, the 14th of
6 June, 1998, Nenad Remistar was removed from the room in the KLA compound
7 in Jabllanice where he was detained and never seen again. He is still
8 unaccounted for. The Chamber is satisfied that the allegations of
9 torture and cruel treatment of Nenad Remistar are established. The
10 Prosecution presented no evidence about what happened to Nenad Remistar
11 following his removal from a room in the KLA compound in Jabllanice. The
12 Chamber concludes in the circumstances that the murder of Nenad Remistar
13 is not established.
14 Towards the end of June 1998, one unknown Bosnian man and three
15 unknown Montenegrin men were brought to the KLA compound in Jabllanice
16 where they were beaten and stabbed with knives by KLA soldiers in the
17 presence of Nazmi Brahimaj and Hamza Brahimaj. The unknown Bosnian man
18 was accused of interrupting electricity. The Chamber is satisfied that
19 the allegations of cruel treatment of these four men and the charge of
20 torture of the unknown Bosnian man are established. In the absence of
21 evidence that the mistreatment of the three unknown Montenegrin men was
22 carried out with the requisite intent for torture, the Chamber concludes
23 that the charge of torture of the three Montenegrin men is not
25 Count 5. On approximately the 13th or 14th July, 1998,
1 Skender Kuci, a Kosovo Albanian, was brought to the KLA compound in
2 Jabllanice in the boot of his car and was detained in a room in the KLA
3 compound. He was beaten on his arrival in the courtyard and in the room
4 where he was detained by KLA soldiers, including Nazmi Brahimaj and
5 Hamza Brahimaj, in the presence of Lahi Brahimaj. On the following day,
6 that is, approximately 14th or 15th of July, 1998, Pal Krasniqi, a
7 Catholic Kosovo Albanian who had left his home in Pec on the 10th of
8 July, 1998, with the intention of joining the KLA, was brought to the KLA
9 compound in Jabllanice. He was detained in the same room as Skender
10 Kuci. A few hours later, Witness 3, a Kosovo Albanian, was brought by
11 Lahi Brahimaj to the KLA compound in Jabllanice and was detained in the
12 room with Skender Kuci and Pal Krasniqi. The three men were subjected to
13 repeated beatings in the KLA compound in Jabllanice. A witness described
14 the state Skender Kuci and Pal Krasniqi were in as a result of the
15 beatings like this, and I quote:
16 "I never saw anyone in a worse condition. I have seen people
17 dead, killed during the war. But people reduced to that plight I had
18 never seen before. In a very, very bad condition."
19 During the beatings Pal Krasniqi was accused of being a spy and
20 Skender Kuci of having a lot of money. Witness 3 was interrogated by
21 Lahi Brahimaj following which Lahi Brahimaj asked two women to practice
22 beating with batons on Witness 3. The Chamber is satisfied that the
23 allegations of torture and cruel treatment with respect to Skender Kuci,
24 Pal Krasniqi, and Witness 3 are established. This count is again also
25 not charged against Lahi Brahimaj in the re-trial.
1 On approximately the 15th or 16th of July, 1998, the day of his
2 failed attempt to escape from the KLA compound in Jabllanice, Skender
3 Kuci was beaten severely, following which he was brought to a hospital
4 where he died. The Chamber is satisfied that the death of Skender Kuci
5 was caused by complications of the injuries inflicted on him during the
6 beatings in the KLA compound in Jabllanice. The charge of murder of
7 Skender Kuci is established.
8 Pal Krasniqi was subjected to severe and repeated beatings in the
9 KLA compound in Jabllanice. He was last seen by Witness 6 at the KLA
10 compound in Jabllanice on the 25th of July, 1998. His body was
11 discovered in September 1998 at the Lake Radoniq canal with gun-shot
12 injuries to the head, trunk, and upper limbs. The Prosecution has
13 presented no evidence as to the circumstances in which he died. In the
14 circumstances, the Chamber cannot conclude beyond reasonable doubt that
15 the charge of murder of Pal Krasniqi is established.
16 Count 6. On a day after the attack by the Serbian forces on the
17 village of Grabanice on or about the 19th of May, 1998, Naser Lika and
18 Fadil Fazliu were removed by force by KLA soldiers from a house in
19 Zhabel. During the incident the KLA soldiers called Fadil Fazliu and
20 Naser Lika traitors. The KLA soldiers beat and kicked Naser Lika and
21 Fadil Fazliu in Zhabel. The Chamber is satisfied that the allegations of
22 torture and cruel treatment of Naser Lika and Fadil Fazliu with respect
23 to their forceful removal from Zhabel are established.
24 The Chamber therefore is satisfied that Counts 3, 4, 5, and the
25 forceful removal of Naser Lika and Fadil Fazliu from Zhabel by KLA
1 soldiers alleged in Count 6 are established.
2 Turning to Count 1 of the indictment alleges the murder, cruel
3 treatment, and torture of Ivan Zaric, a Kosovo Serb, and Agron Berisha
4 and Burim Bejta, both of Kosovo Roma origin. The evidence establishes
5 that the three men left the village of Dolac on the 17th or 18th of May,
6 1998, on a horse-drawn cart in the direction of the mill in the village
7 of Grabanice where they were going to grind a sack of corn. They arrived
8 in Grabanice the same day. The three men were never seen by their
9 relatives after that day. The Prosecution offered two witnesses to prove
10 events that, it alleges, occurred after Ivan Zaric, Agron Berisha, and
11 Burim Bejta were last seen by their relatives. One of these witnesses
12 gave evidence, suggesting that the three men were mistreated in the KLA
13 compound in Jabllanice and killed and that the three accused were
14 involved in the mistreatment and killing. The other witness gave
15 evidence suggesting that Idriz Balaj and Lahi Brahimaj were involved in
16 the mistreatment, including of the three victims. The first witness
17 changed his account a number of times in material respects. He
18 contradicted himself repeatedly and his evidence was contradicted by
19 other evidence in the proceedings. The evidence of the second witness
20 was characterised by significant inconsistencies and contradictions. The
21 Chamber was not satisfied of the reliability of the evidence of either of
22 these two witnesses. For reasons fully set out in the written judgement,
23 the Chamber finds that Count 1 is not established.
24 Count 2 alleges the murder and cruel treatment of two
25 Roma/Egyptian men, Uke Rexhepaj and his son-in-law Nesret Alijaj from the
1 village of Grabanice. The evidence establishes that on the 20th of May,
2 1998, Uke Rexhepaj and Nesret Alijaj were stopped on the road between
3 Grabanice and Dolovo by men dressed in dark-green camouflage clothing who
4 were speaking Albanian. These men tied the hands of Uke Rexhepaj and
5 Nesret Alijaj, blindfolded them, and threw them into a car which left in
6 an unknown direction. The Prosecution presented no direct evidence as to
7 what happened to Uke Rexhepaj and Nesret Alijaj after they were abducted
8 from the road between Grabanice and Dolovo. It seeks to rely on the
9 evidence of a witness in another trial, whose evidence on this issue was
10 not subjected to cross-examination, referring to a son-in-law and a
11 father-in-law of Roma origin, whose identity is not known, being present
12 in the KLA compound in Jabllanice. Again, for reasons fully set out in
13 the written judgement, the Chamber finds that Count 2 is not established.
14 Count 6 contains further allegations of mistreatment of
15 Naser Lika, a Kosovo Albanian, in the KLA compound in Jabllanice. The
16 Prosecution called one witness in support of this charge; this was one of
17 the two witnesses it offered in support of Count 1. The Chamber was not
18 satisfied that this witness was a reliable witness. In particular, the
19 Chamber was not persuaded that the witness was indeed present in the KLA
20 compound in Jabllanice at the material time and that he actually observed
21 the events he testified about. The Chamber was left with a clear
22 impression that this witness may have retold what he might have heard
23 from others. For reasons, again, fully set out in the written judgement,
24 the Chamber finds that the allegations of torture and cruel treatment of
25 Naser Lika in the KLA compound in Jabllanice contained in Count 6 are not
2 A central allegation in the present indictment is the existence
3 of a joint criminal enterprise, to which I will refer as JCE, the alleged
4 common purpose of which was to consolidate the total control of the KLA
5 over the Dukagjin Operational Zone by the unlawful removal and
6 mistreatment of Kosovo Serb civilians and by the mistreatment of Kosovo
7 Albanian and Kosovo Roma/Egyptian civilians, and other civilians, who
8 were or were perceived to have been collaborators with the Serbian forces
9 or otherwise not supporting the KLA. This JCE is alleged to have existed
10 from on or about March 1998 until at least late September 1998.
11 The Prosecution presented no direct evidence to prove that the
12 established crimes were committed as part of a JCE in which the three
13 accused participated. The Chamber considered circumstantial evidence
14 tendered by the Prosecution to prove this allegation. This evidence
15 includes communiques of the KLA General Staff published in the media
16 which contain information about attacks or "measures" undertaken by the
17 KLA against collaborators with the Serbian authorities. The Chamber
18 finds that the information contained in the communiques may have been
19 exaggerated or altered for propaganda purposes. This information was
20 often vague and lacked details as to the time and place of the incident,
21 the identity of the perpetrator, the identity of the victims or their
22 civilian or military status. Further, the Chamber received evidence
23 relating to the existence of various lists of names, which the
24 Prosecution submits were, quote:
25 "KLA black lists of individuals who were suspected of being
1 disloyal to the KLA, sympathising with the opposition LDK or having
2 worked for the Serbian authorities."
3 In evidence is only one such list, in handwritten notes of a
4 meeting, with the heading "Wanted/or missing persons," whose purpose is
5 not established by the evidence. In the Chamber's conclusion, the
6 evidence tendered with respect to these lists does not support a finding
7 that a JCE existed with a common criminal purpose as alleged in the
9 KLA military police regulations provide, in relevant parts, that
10 the KLA military police had the task of "investigating and uncovering ...
11 all those persons who collaborate in any way with the enemy," and, again
12 I quote, "taking of measures against all those working against the Kosovo
13 Liberation Army." Considering evidence about activities of the KLA
14 military police on the ground, the Chamber concluded that these
15 regulations do not support the existence of a JCE.
16 Apart from the incidents at the KLA compound in Jabllanice, the
17 Chamber found the following incidents of mistreatment of civilians in the
18 territory of the Dukagjin Operational Zone by KLA soldiers were
19 established: The mistreatment of Mijat Stojanovic, Dragoslav Stojanovic,
20 and Veselin Stijovic on the 18th of April, 1998, in the Stojanovic family
21 compound and in Smajl Haradinaj's house in Gllogjan by KLA soldiers
22 including Zeqir Nimonaj, Daut Haradinaj, and Besnik Haradinaj; the
23 mistreatment of Novak Stijovic and Stanisa Radosevic on the 22nd of
24 April, 1998, by KLA soldiers in Gllogjan and the beating of the Albanian
25 interpreter of an ECMM team in Gllogjan by Idriz Balaj on the 11th of
1 August, 1998. Considering the specific circumstances in each of these
2 incidents, and in particular events preceding and following the
3 mistreatment and the release of the victims shortly thereafter, the
4 Chamber finds that none of these incidents is indicative of a pattern or
5 a plan involving the mistreatment of civilians as alleged in the
6 indictment. For example, after one of these incidents, a KLA soldier
7 apologised to the victims and attributed the incident to uncontrollable
8 extremist groups within the KLA.
9 The Chamber found that Jah Bushati, Witness 6, Nenad Remistar,
10 one unknown Bosnian man, three unknown Montenegrin men, Pal Krasniqi,
11 Skender Kuci, and Witness 3 were detained in the KLA compound in
12 Jabllanice, where they were subjected to repeated beatings by KLA
13 soldiers. The Chamber found that the perpetrators of these beatings,
14 except for Jah Bushati, included Nazmi Brahimaj, Hamza Brahimaj,
15 Naser Brahimaj, and Lahi Brahimaj. The victims, except for Jah Bushati
16 and the three Montenegrin men, were accused of spying or of consorting
17 with Serbs or were associated with the Serbian forces. These findings of
18 the Chamber tend to suggest that a common plan may have existed between
19 Nazmi Brahimaj, Hamza Brahimaj, Naser Brahimaj, Lahi Brahimaj, and other
20 KLA soldiers present in the KLA compound in Jabllanice to detain and
21 mistreat individuals whom they believed were collaborating with the
22 Serbian forces or were not supporting the KLA. Such common plan is not
23 alleged in the present indictment and the issue is outside the scope of
24 these proceedings. The Chamber notes, however, that even if the
25 existence of such a common plan were established which is not the finding
1 of the Chamber, there is nothing in the evidence to indicate that
2 Ramush Haradinaj or Idriz Balaj may have been involved in any such common
3 plan. On the contrary, the evidence establishes that when
4 Ramush Haradinaj found out about the detention and mistreatment of
5 Skender Kuci, he went to Jabllanice to speak to Nazmi Brahimaj regarding
6 Skender Kuci's release, telling him that, quote: "No such thing should
7 happen anymore because this is damaging of our cause."
8 When Witness 3 was brought to Ramush Haradinaj after his escape
9 from Jabllanice and subsequent apprehension by Lahi Brahimaj,
10 Ramush Haradinaj offered him food and accommodation and released him to
11 his family. No credible evidence has been presented by the Prosecution
12 to establish that Ramush Haradinaj was even aware of the crimes committed
13 at the KLA compound in Jabllanice. On the evidence accepted by the
14 Chamber, there is no mention of Idriz Balaj being present in the KLA
15 compound in Jabllanice or having knowledge of these crimes.
16 Having considered all the circumstantial evidence offered to
17 prove the existence of the JCE alleged in the indictment, the Chamber
18 finds that the common purpose of the JCE is not established.
19 Ramush Haradinaj and Idriz Balaj, therefore, are not criminally
20 responsible for participating in the JCE in relation to the crimes
21 charged in the indictment under Counts 3, 4, 5, and 6. Lahi Brahimaj is
22 not criminally responsible for participating in a JCE in relation to the
23 crimes charged under Counts 4 and 6.
24 Ramush Haradinaj is charged in the alternative with ordering,
25 instigating, or aiding and abetting the crimes charged in Count 6. The
1 Chamber found that the crimes alleged under this count were not
2 established, except for the forceful removal of Naser Lika and
3 Fadil Fazliu from Zhabel by KLA soldiers. There is no evidence that
4 suggests, let alone prove beyond a reasonable doubt, that
5 Ramush Haradinaj prompted or instructed the KLA soldiers who forcibly
6 removed Naser Lika and Fadil Fazliu from Zhabel to commit these acts or
7 that he aided and abetted this crime.
8 Idriz Balaj and Lahi Brahimaj are charged in the alternative with
9 committing, planning, or aiding and abetting the commission of the crimes
10 charged in Count 6. The Chamber found that the alleged crimes charged
11 under this count were not established, except for the forceful removal of
12 Naser Lika and Fadil Fazliu from Zhabel by KLA soldiers. The Prosecution
13 provided no evidence to support the allegations that Idriz Balaj and
14 Lahi Brahimaj committed, planned, or aided and abetted the commission of
15 this crime. Therefore, Idriz Balaj and Lahi Brahimaj are not criminally
16 responsible in any respect for the crimes charged under 6, including the
17 modes of liability charged in the alternative.
18 Mr. Haradinaj, will you please stand up.
19 The Chamber finds you not guilty on all counts in the indictment.
20 The Chamber orders that you be released from the United Nations Detention
21 Unit, subject to the completion of the necessary formalities, unless you
22 are detained there pursuant to any other valid order of detention. You
23 may be seated.
24 Mr. Balaj, will you please stand up.
25 The Chamber finds you not guilty on all counts in the indictment.
1 The Chamber orders that you be released from the United Nations Detention
2 Unit, subject to the completion of the necessary formalities, unless you
3 are detained there pursuant to any other valid order of detention. You
4 may be seated.
5 Mr. Brahimaj, Mr. Brahimaj, the Chamber finds you not guilty on
6 all counts in the indictment charged against you. The Chamber orders
7 that you be released from the United Nations Detention Unit, subject to
8 the completion of the necessary formalities, unless you are detained
9 there pursuant to any other valid order of detention. You may be seated.
10 This concludes this trial. The Chamber will now adjourn.
11 --- Whereupon the hearing adjourned at 9.35 a.m.