Tribunal Criminal Tribunal for the Former Yugoslavia

Page 3075

 1                           Thursday, 29 November 2012

 2                           [Judgement]

 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

 7     courtroom.

 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

14     Prosecution.

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.


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 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


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 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


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 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.


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 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

24     established.

25             Count 5.  On approximately the 13th or 14th July, 1998,


Page 3080

 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.


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 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


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 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


Page 3083

 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


Page 3084

 1     established.

 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


Page 3085

 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

 8     indictment.

 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


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 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


Page 3087

 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


Page 3088

 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.


Page 3089

 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.

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