Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                          Monday, 15 November 2004

 2                          [Open session]

 3                          [The accused entered court]

 4                          --- Upon commencing at 2.18 p.m.

 5            JUDGE PARKER:  We are now at the point of commencing the trial of

 6    the three accused, each of whom have previously entered pleas of not

 7    guilty to all counts in the indictment.  The proceedings this morning have

 8    ensured that the present interpretation arrangements are adequate to

 9    ensure that each of the accused is able to follow the proceedings in their

10    own language.  So on that basis, we now turn to Mr. Cayley and invite him

11    to make his opening remarks.

12            MR. CAYLEY:  May it please Your Honours.  A few prefatory

13    comments, Your Honours.  I will be displaying during my opening a number

14    of exhibits in the Sanction software system, so you'll see the document on

15    the screen in front of you.  All of the material has been disclosed to the

16    Defence, although, of course, it will be admitted through later witnesses.

17    A number of the documents are in fact public documents which will probably

18    not require formal admission through a witness such as Security Council

19    resolutions, public statements by the Prosecutor.  So with that, Your

20    Honours, I will begin.

21                          [Prosecution Opening Statement]

22            MR. CAYLEY:  The essential facts of this case are as

23    straightforward as they are compelling.  The Prosecutor will show that

24    between May and July of 1998, Serb and Albanian men were abducted and

25    unlawfully detained in a makeshift prison camp in the village of Lapusnik

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 1    in Kosovo.  Here, they were brutally beaten, tortured, and mistreated, and

 2    in over 20 instances, either beaten to death or killed by fatal gunshot

 3    wound.

 4            The three accused before you, Fatmir Limaj, Isak Musliu, and

 5    Haradin Bala, bear responsibility for these events.

 6            The origins of this case and the human suffering which both

 7    preceded and followed it are now part of European history.  The hopes,

 8    frustrations, and irreconcilable differences which led to this war, while

 9    relevant for your consideration, are not on trial here.  In bringing this

10    case, we do not seek to underwrite or condemn the ethics or wisdom of any

11    party who sought recourse to war as a means of settling bitter and

12    seemingly intractable controversies.  The causes of war, the aspirations

13    of an oppressed people are not the subject of a complaint.  The

14    Prosecutor's position is simply this:  No cause, however just, legitimises

15    indiscriminate murder.  The Prosecutor strived for the best part of ten

16    years towards one straightforward objective:  To condemn dispassionately,

17    impartially, very serious crimes committed by any party which fall within

18    the jurisdiction of this Tribunal.

19            I hope you can see a map in front of you of where Kosovo lies in

20    the Balkans.  The beige shaded area is Kosovo.  The crimes which are

21    referred to in this indictment took place in Kosovo.  You can see that

22    Kosovo is located in the southern part of what was the former Yugoslavia.

23    It shares borders with Montenegro to the west, Albania to the south-west,

24    the former Yugoslav Republic of Macedonia to the south, and you can see

25    Serbia to the north.

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 1            The village of Lapusnik, which is the principal scene of the

 2    crimes in this indictment, you can see marked on this map.  It is in the

 3    municipality of Glogovac.  So you see it marked there with a red disk.

 4            Do Your Honours see the maps in front -- you do.  Thank you.

 5            The village of Lapusnik is strategically located on the

 6    Pristina-Peja-Pec road.  You can see there Pristina on the right.  The

 7    cursor arrow is marking it.  That is the major city, major capital of

 8    Pristina -- of Kosovo, rather, and then you can see to the left, Peja, or

 9    Pec as it is known in the Serbian language, which is another principal

10    town in Kosovo.  So Lapusnik is strategically located on a road connecting

11    these two major places.

12            By February or March of 1998, Kosovo had spiralled into armed

13    conflict with the Serb army and police on one side and the KLA, or Kosovo

14    Liberation Army, on the other.  By May of 1998, Fatmir Limaj had returned

15    from Switzerland and was based at the KLA headquarters in Klecka.  He was

16    commander of the KLA forces in an area where the crimes which are

17    specified in this indictment took place.

18            If we could now advance to the next exhibit.  There you can see

19    Klecka marked on the map.  The cursor arrow is showing it.  And you see

20    Lapusnik, the principal scene of the crimes in the case, with the red

21    square.

22            Fatmir Limaj was the commander of KLA forces in an area where the

23    crimes which are specified in the indictment took place.  A number of KLA

24    military concentrations or points, as they were called, were dispersed

25    across Fatmir Limaj's area of control, including one in the village of

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 1    Lapusnik.

 2            Again, the cursor pointing to the village of Lapusnik.

 3            Isak Musliu was commander of KLA troops in Lapusnik.  The

 4    commanders or leaders of all of these points, including Isak Musliu,

 5    reported to Fatmir Limaj, and he, in turn, was regularly present at these

 6    points or military concentrations supervising and commanding his troops in

 7    the region.  As part of an effort to strengthen his grip in his area of

 8    command, Fatmir Limaj and others, including Isak Musliu and Haradin Bala,

 9    participated in a campaign to target Serbs and Albanians accused of

10    collaboration with the Serbs, with abduction, unlawful imprisonment,

11    torture, and murder.  Serbs, it seems, were arrested simply for being

12    Serbs; Albanians, because of alleged collaboration.  Often, it seems that

13    collaboration was based on merely having had social contact with Serbs.

14    Sometimes political loyalties at odds with the KLA political beliefs were

15    the motivation.

16            The evidence will show, Your Honours, that many more Albanians

17    than Serbs were captured and taken to Lapusnik.  Serbs and Albanians were

18    abducted by members of the KLA from their homes, often in the middle of

19    the night, often from public transport or their motor cars.  They were

20    taken from villages in Limaj's areas of command and brought, all of them,

21    to the camp at Lapusnik.  If Limaj's headquarters at Klecka did not order

22    the kidnapping or know of it beforehand, they were informed immediately

23    after it happened.  Although many prisoners were interrogated, usually

24    while being beaten, it was no effort to determine if there was any legal

25    basis to detain them.

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 1            Isak Musliu, as part of his command duties, was in charge of the

 2    soldiers who guarded the camp at Lapusnik.  Haradin Bala was a guard in

 3    the camp.  Both knew of and participated in atrocious criminal acts in the

 4    camp.  Prisoners were kept in inhumane conditions.  They were beaten and

 5    tortured.  A number of prisoners were beaten to death in the camp or

 6    executed.  Isak Musliu and Haradin Bala were based in Lapusnik and were

 7    regularly at the camp.  Fatmir Limaj visited Lapusnik at least 20 times

 8    between May and July of 1998.  He knew what was taking place in the

 9    makeshift camp and Isak Musliu acted to his order.  The camp was in

10    operation from May until July 26th, 1998, when a Serb counter-offensive in

11    the region forced an evacuation of the remaining prisoners from the camp,

12    who were taken up into the hills above Lapusnik to a place called Berisa.

13    And you can see Berisa marked on the map with an orange triangle with a

14    black circle within it.

15            Here, on Fatmir Limaj's orders, approximately half of the

16    remaining prisoners were released and the other half were executed by

17    Haradin Bala.

18            Those, Your Honours, are the essential facts of this case.

19            Kosovo is currently supervised by a United Nations civilian

20    interim administration.  UNMIK, as it is known, the UN mission in Kosovo,

21    was established by Security Council resolution in 1999, Resolution 1244,

22    after the end of the war.  This administration works closely with Kosovo's

23    leaders and its people.  The United Nations receives substantial support

24    for its work in Kosovo from the organisation for security and cooperation

25    in Europe, OSCE, and from the EU, from the European Union.  KFOR, or

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 1    Kosovo Force is a NATO-led military force responsible for maintaining the

 2    peace and security in the region.  I mentioned this to you because these

 3    acronyms I think you will hear throughout the trial.  I'm quite certain

 4    you knew this already but I wanted to make it clear.

 5            Just a word on Albanian and Serbian or B/C/S as we call it at

 6    ICTY.  You've already noticed on the maps that there are often times two

 7    names for the same place.  In Kosovo, places obviously have names in the

 8    Albanian language and names in the Serbian language.  The history of the

 9    region explains this.  Obviously, Albanian witnesses will refer to

10    place-names by their Albanian names, and Serb witnesses by their Serb

11    names.  Often times, the word is very similar or almost identical, but we

12    will all I think become accustomed over the course of the trial with the

13    fact that often times a single place may be referred to by two slightly

14    different names.

15            A word about the investigation of this case.  A survivor, who you

16    will hear as a witness, first made complaint to local police in Kosovo and

17    then to the international police arm of UNMIK, the United Nations mission

18    in Kosovo.  It was UNMIK, or the international police arm of UNMIK, who

19    commenced the first large-scale investigation of these crimes.  The

20    Prosecutor of the ICTY exercised her jurisdiction in this case in 2002,

21    and the case was taken over at that time by the Office of the Prosecutor.

22            I mention this, as you will see from time to time in the case

23    witness statements and other material whose origin does not lie with this

24    office but in fact with UNMIK.  I should emphasise that the OTP

25    re-investigated this case.  By this I mean we spoke to all of the

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 1    witnesses, or almost all of the witnesses who UNMIK identified in their

 2    investigation and then we obviously identified many more witnesses of our

 3    own.

 4            The Defence have all the material from the UNMIK investigation,

 5    which we required to disclose to them under the Rules of Procedure and

 6    Evidence, be that Rule 66 or Rule 68.

 7            The original UNMIK investigation targeted four individuals.  We

 8    did the same.  The three accused before you and another individual by the

 9    name of Agim Murtezi.  Agim Murtezi was charged and arrested and claimed

10    from the very start that he had been misidentified.  None of the three

11    other accused before you made such a claim.  On transfer to The Hague,

12    Murtezi immediately submitted to a suspect interview in accordance with

13    the Rules with the Prosecutor.  All of the other three accused exercised

14    their legal right to remain silent.  After further investigation of

15    Murtezi's account by the Prosecutor, it was clear that he had not been in

16    Lapusnik during the relevant time.  Period he was released and the charges

17    were dropped.

18            One last word on UNMIK and KFOR.  Our own investigation and work

19    in Kosovo would not have been possible without the cooperation that we

20    receive from these two organisations.  People are working very hard, both

21    internationals and senior members of both communities, to re-establish the

22    rule of law and ensure that Kosovo has a transparent and functioning legal

23    system.  I publicly pay tribute and thank all of these individuals.

24            In front of you, Your Honours, you will see a photograph of some

25    housing and agricultural premises.  Here you see a traditional Albanian

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 1    compound.  And where you see the cursor at the moment is the place in

 2    which the makeshift prison camp was established from May until July of

 3    1998.  Here you see a road where the cursor is now pointing, and above the

 4    road, another compound opposite the prison camp which served as a KLA

 5    headquarters.  So it is in this area here, in these buildings surrounding

 6    where the arrow is pointing now, where the makeshift prison camp was

 7    located.

 8            Whilst not all the crimes contained in the indictment took place

 9    in the camp, it is here that victims were taken after their abduction.  It

10    is here where all of the victims in this case were unlawfully imprisoned.

11    It is here where the victims were beaten, tortured, and maltreated, and it

12    is either in this place or from here where the murder victims were taken

13    to be killed.

14            An opening statement must contain an outline of the evidence on

15    which the Prosecutor intends to rely and also an explanation of the nature

16    of the charges laid.  The Prosecutor has already outlined the law and

17    evidence in some detail in written form in her pre-trial brief.  The three

18    accused have all responded to that pre-trial brief in their own pre-trial

19    briefs in which they outline their challenges to the Prosecutor's case and

20    set out generally the nature of their defences to the allegations made

21    against them.  Some preliminary comments on the pre-trial briefs of the

22    Defence, which respectfully, Your Honours, I would ask you to keep at the

23    forefront of your mind throughout this opening and indeed throughout this

24    case.

25            The accused Limaj and Musliu acknowledge their presence in the

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 1    village of Lapusnik for either virtually all or a substantial period of

 2    the indictment.  Fatmir Limaj states that he was in Lapusnik on some 20

 3    occasions between May and July of 1998.  Isak Musliu states in his

 4    pre-trial brief that he was based in Lapusnik from May to July of 1998,

 5    although he took some trips away from Lapusnik at that time.

 6            Whilst admitting their presence in the very place where all of

 7    this suffering and killing took place, for those two accused, there was no

 8    camp, no prisoners, no beatings, no torture, and no dead that burdened

 9    their conscience.  As is their right, the accused are putting the

10    Prosecutor to proof on all the criminality referred to in this indictment.

11    The Prosecutor will do exactly what is implicitly asked of her:  Show to

12    this Court their guilt beyond a reasonable doubt.

13            Mr. Bala has taken a slightly different course in his defence than

14    his co-accused.  He offers to the Court a partial alibi.  He states now

15    that he was in Lapusnik for a few weeks in May of 1998, and then left for

16    duties elsewhere.  So his position is that he knew nothing about the camp

17    either, although in the recently filed Rule 92 bis response by the

18    Defence, it now seems that his position too is that he denies the

19    existence of the prison camp also.  So not only that he didn't know about

20    it but that he completely denies that the camp ever existed.

21            The principal strength of the Prosecutor's case, Your Honours, is

22    that the Prosecutor draws on evidence from multiple sources.  We do not

23    just call the victims, the survivors, we also rely on forensic evidence,

24    which is unusual for a war crimes case because of the length of time

25    normally between commission and length of trial.  Moreover, the evidence

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 1    of the survivors is corroborated by members of the international

 2    community, who will confirm that during the relevant time period, it was

 3    well known that both Serbs and Albanians were being abducted and murdered

 4    by certain elements within the KLA.  We will rely on evidence from members

 5    of the KLA itself, individuals who were on the inside of the organisation,

 6    who will confirm, either partly or fully, a number of the critical events

 7    in this case.

 8            If I could now make some comments, Your Honours, about the

 9    indictment structure and the charges, quite briefly.  All three accused

10    are charged with unlawful imprisonment in count 1 as a crime against

11    humanity and count 2 as a violation of the laws or customs of war.  Fatmir

12    Limaj and Isak Musliu are charged under Article 7(1) and 7(3) of the

13    Statute with these crimes, Haradin Bala is charged under Article 7(1)

14    only.  All three accused are charged with torture, inhumane acts and cruel

15    treatment.  Torture is charged in counts 3 and 4 as a crime against

16    humanity and a violation of the laws and customs of war respectively;

17    inhumane acts are charged as a violation of the laws and customs of war in

18    count 5; and cruel treatment is charged in count 6, again as a violation

19    of the laws and customs of war.  In respect of these counts, Fatmir Limaj

20    and Isak Musliu are charged under Article 7(1) and 7(3) of the Statute,

21    Haradin Bala is charged under Article 7(1) only.

22            All three accused are charged with murder.  Murder is charged in

23    count 7 as a crime against humanity, and in count 8 as a violation of the

24    laws and customs of war.  These counts capture the murder of Ajet Gashi,

25    the murder of Milovan Krstic, the murder of Miodrag Krstic, the murder of

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 1    Slobodan Mitrovic, the murder of Miroslav Suljnic, the murder of Zivorad

 2    Krstic, the murder of Stamen Genov, the murder of Djordje Cuk, the murder

 3    of Sinisa Blagojevic, the murder of Jefta Petkovic, the murder of Zvonko

 4    Marinkovic, the murder of Agim Ademi and the murder of Vesel Ahmeti and

 5    the murder of Fehmi Xhema.

 6            Fatmir Limaj and Isak Musliu are charged with the unlawful killing

 7    of these men under both Article 7(1) and 7(3) of the Statute.  Haradin

 8    Bala is charged under Article 7(1) only of the Statute, with the murder of

 9    Jefta Petkovic, Zvonko Marinkovic, Agim Ademi, Vesel Ahmeti and Fehmi

10    Xhema.

11            Murder is charged in counts 9 and 10 as a crime against humanity

12    and violation of the laws and customs of war.  These two counts capture

13    the murder of Emin Emini, the murder of Ibush Hamza, the murder of Hyzri

14    Harjizi, the murder of Shaban Hoti, the murder of Hasan Hoxha, the murder

15    of Safet Hysenaj, the murder of Bashkim Rashiti, the murder of Hetem

16    Rexhaj, the murder of Lutfi Xhemshiti, and the murder of Shyqyri Zymeri.

17    Fatmir Limaj is charged with all of these murders under both Article 7(1)

18    and 7(3) of the Statute.  Haradin Bala is charged with these murders under

19    Article 7(1) only.

20            A brief word on the modes of liability on which we rely under

21    Article 7(1) of the Statute.  You will see in the indictment in the

22    prefatory paragraphs for each series of counts - that's paragraphs 21, 25,

23    28, and 34 - that these express the modes of liability that we rely on for

24    that particular set of counts, where Fatmir Limaj and Isak Musliu are

25    charged under Article 7(1) of the Statute, the modes we rely on are

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 1    planning, instigating, ordering, committing, or otherwise aiding and

 2    abetting.  Where Haradin Bala is charged under Article 7(1) of the

 3    Statute, we rely only on the modes of committing or otherwise aiding and

 4    abetting.  Where we state the mode of liability of committing, we seek to

 5    plead, where appropriate, that not only did the accused personally

 6    participate in the alleged crime, where the evidence so demonstrates, but

 7    also that these crimes were part of a joint criminal enterprise in which

 8    all three accused participated.  We've expressly pleaded the nature of

 9    that joint criminal enterprise in paragraphs 6 to 13 of the indictment.

10    You will recall that the Tadic appeals judgement identified three forms of

11    joint criminal enterprise, and I will deal with those three forms at a

12    later stage in my opening.

13            At this juncture, I would simply say this about the legal vehicle

14    of liability of joint criminal enterprise:  In a joint criminal

15    enterprise, we do not seek to punish one man for another man's crimes.  We

16    seek to punish each for his own crime of joining a common criminal plan in

17    which others also participated.  The measure of the criminality of the

18    plan and therefore of the guilt of each participant is of course the sum

19    total of all the crimes committed by all in executing the plan.  But the

20    basis of the offence is participation in the formulation and/or execution

21    of the plan.  These are the rules which every civilised society has found

22    necessary in order to reach men who do not always get blood on their own

23    hands but who lay plans or involve themselves in a plan that result in the

24    shedding of blood.

25            What will become clear from the evidence is that the abduction,

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 1    imprisonment, maltreatment and murder of the victims in this case was a

 2    criminal enterprise of some scale and longevity.  Whilst it is true that

 3    the three accused are not the only ones involved in these --

 4            THE INTERPRETER:  Could counsel please slow down for the

 5    interpreters.  Thank you.

 6            MR. CAYLEY:  I'm sorry.  I'm running ahead of the translators.

 7            What I will do is to turn up the French translation and listen to

 8    it here and hopefully that should solve it.

 9            So all three accused are charged under Article 7(1) with criminal

10    responsibility for their participation in a joint criminal enterprise.

11    Who are the three accused?  Firstly, the first accused, Fatmir Limaj.

12            The first accused is 33 years old.  He was born in Banja near

13    Malisevo, in Kosovo, and you can see Banja.  The cursor is pointing to the

14    village of Banja now.  You can also see still identified Lapusnik above

15    it.  So Mr. Limaj was a local man from this area.  He served as deputy

16    defence minister in the provisional government of Kosovo and was later a

17    member of the Pristina Municipal Assembly and was the PDK public relations

18    secretary.  The PDK, or Kosovo Democratic Party, is a party which emerged

19    from the renamed PPDK, which was a political party that emerged out of the

20    KLA.  Mr. Limaj was educated in Kosovo and studied law at the University

21    of Pristina.  He was active from a young age in resisting Serb rule in

22    Kosovo.  He joined the KLA prior to the war in 1998, after a crack-down by

23    Serb authorities against Kosovar Albanian organisations.  He sought

24    refugee status in Switzerland in 1997.  Here he stayed until about March

25    of 1998, when he returned to Kosovo and established a KLA headquarters in

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 1    Klecka, the place that I've already shown to you on the map.  You can see

 2    it again on this map - the white cursor is pointing to it - where he

 3    controlled KLA forces south of the strategic Pristina-Pec road, which is

 4    this road here.

 5            By May of 1998, forces under Fatmir Limaj's control had secured

 6    the village of Lapusnik, which then served as a front line base for both

 7    KLA operations against the Serbs and as the prison camp for Serb and

 8    Albanian prisoners.

 9            From at least this time, Limaj went under the pseudonym or nom de

10    guerre of Celiku, and the unit under his command at Lapusnik which was

11    commanded by the second accused in this case, Isak Musliu, was known as

12    Celiku 3.

13            The second accused, Isak Musliu.  Isak Musliu is also 33 years

14    old.  He was born in the village of Racak.  You can see Racak there marked

15    on the map.  Also a local man.  He completed military service with the JNA

16    in 1989.  He joined the KLA in 1996, and in April of 2000, he joined the

17    KPS or Kosovo Police Service.  He was dismissed from the police on the 9th

18    of May, 2002.  His nom de guerre during the war was Qerqiz.  Shortly after

19    the 9th of May of 1998, Musliu became the commander of KLA soldiers in

20    Lapusnik directly under Fatmir Limaj.  He was the local commander of

21    forces in Lapusnik as opposed to Fatmir Limaj, who was the regional

22    commander.  Isak Musliu's role was to organise part of the defence of the

23    Lapusnik area and command the guards that ran the camp.

24            The third accused in this case, Mr. Haradin Bala, was born in

25    Korotice E Eperme, and you can see that also where the cursor is now

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 1    pointing, also a local man.  He has a heart condition for which he's

 2    currently being successfully treated, and whilst he has argued that such

 3    condition makes him unfit to stand trial before you, physicians have

 4    concluded that he is currently fit to be with us.  Haradin Bala joined the

 5    KLA in April 1998.  He went to Lapusnik in May of 1998.  He was a guard at

 6    the Lapusnik prison camp.  From this time, he went under the pseudonym or

 7    nom de guerre of Shala.

 8            I'd like to briefly address Your Honours, and I say briefly, on

 9    the background and history of Kosovo.

10            All peoples, all countries, are shaped by their history, by the

11    ebb and flow of empires, by the providence that they enjoy, and by the

12    misfortune that they must suffer.  In the countries of the former

13    Yugoslavia, history is ever present and inescapable.  It animates,

14    justifies, and fuels the action, both good and ill, of all the peoples who

15    were once part of its complex mosaic.  History, of course, is a subject

16    which must be treated very carefully within the context of an

17    international criminal prosecution.  Quarrels over the truth or the

18    accuracy of certain historical events are a constant danger.

19    Nevertheless, a brief overview, I think, would be helpful for you.

20            For generations, Serbs and Albanians have disagreed over the true

21    history of Kosovo and the cultural ownership of the region, and both have

22    legitimate historical claims to the area.  What is true is that for the

23    best part of a thousand years, Serbs and Albanians have lived both

24    peacefully and in conflict in what is today Kosovo.  Albanians state that

25    they are the original inhabitants being descendents of the ancient

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 1    Illyrians.  The Serbs state that Kosovo was at the heart of an ancient

 2    medieval kingdom.  They buttress these claims by pointing to the Orthodox

 3    monasteries and churches which dot the landscape.

 4            A key date in Kosovo's history is the 28th of June, 1389.  Have no

 5    fear, Your Honours, we're not going to go century by century to the

 6    present day, but it's worth mentioning this.  According to classical

 7    Serbian history, on this date, the Serbian prince Lazar fought invading

 8    Ottoman Turks at Kosovo Polje, the field of black birds, and he was

 9    defeated.  Although Lazar's death was celebrated as a glorious sacrifice,

10    this defeat opened the gates to a Turkish advance which would only be

11    stopped at the gates of Vienna some 300 years later.

12            This single event has exercised a powerful grip on Serbian

13    imagination, and the call to avenge Kosovo was an emotional one during the

14    nineteenth century with the re-awakening of Serbian national identity.

15    For many Serbs even today, Kosovo is regarded in the same way as we

16    British see Runnymede or the Americans Valley Forge.  It is a central part

17    of their cultural and religious identity, as well as being the ancient and

18    historical homeland of a majority Albanian population.

19            The Ottomans ruled Kosovo for the best part of 500 years.  They

20    brought with them the Islamic faith.  Albanians converted in large

21    numbers, Serbs to a much lesser extent.  Over this same period, many Serbs

22    migrated from Kosovo.  The beginning of the twentieth century saw the

23    Serbs regain control of Kosovo from the Ottoman Turks during the Balkan

24    wars.  Terrible crimes were committed against the Albanian population.

25            The First World War would find the Serbs defeated in Kosovo and

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 1    reprisals against their retreating army and Serb civilians.  At the end of

 2    those tragic four years, the Serbs would return and there were then

 3    counter-reprisals against the Albanian population.

 4            Throughout the interwar years, the Serbs tried to reverse the

 5    population in balance in Kosovo by sending Serb settlers to the area.

 6    During the Second World War, Serbs, especially the settlers, were driven

 7    out.  The end of the war saw the creation of communist Yugoslavia, with

 8    Kosovo a province within the young nation.  Albanians had hoped for a new

 9    Albanian state incorporating Kosovo.  This was not to be.  And their

10    protests were brutally put down by the communist regime.

11            In the 1950s and 1960s, Kosovo's autonomy within Yugoslavia was so

12    diluted that by the early 1960s the province was under direct Serb as

13    opposed to federal rule.  Tens of thousands of Albanians were literally

14    expelled from Kosovo.  In the 1960s, Marsal Tito eased Serb control in the

15    province and enhanced the rights of the Albanian population.  In 1974, the

16    province was granted full autonomy which gave it almost the same rights as

17    Yugoslavia's six republics.

18            In the post-1974 period, the Albanians were placed on a more equal

19    footing with the Serbs and were able to occupy leading positions in both

20    government and business in the province.  From this time on, Serbs

21    complained of harassment by Albanians, who will also demanding the status

22    of a full republic for the province.  By 1981 100.000 Serbs had left

23    Kosovo.  Serbs were increasingly worried because, thanks to Serb

24    immigration and a high Albanian birth rate, the proportion of Serbs in the

25    province had now fallen to a mere one for every nine Albanians.

Page 270

 1            In 1981, there were large-scale riots by Kosovar Albanian students

 2    over living conditions at the University of Pristina.  These riots

 3    escalated into calls for the independence of Kosovo.  Following on from

 4    these riots, the repression of the Kosovar Albanian population commenced,

 5    with hundreds of arrests and ongoing security operations by the JNA and

 6    police to try and maintain order in Kosovo.

 7            After release from prison, many Kosovar Albanians emigrated to

 8    Switzerland and Germany, where the LPK, or Popular Movement of Kosovo, was

 9    formed with the aim of achieving freedom for the Albanian people in Kosovo

10    through an armed uprising.  The LPK was the forerunner of the KLA.

11            From 1981 to 1987, tensions between the Serb and Albanian

12    communities in Kosovo increased with claim and counter-claim.  The Kosovar

13    Serb community became more and more isolated and many felt obliged to

14    leave for Serbia proper.  The press on both sides fuelled the difficulties

15    in Kosovo.  Slobodan Milosevic then exploited the tensions in Kosovo and

16    rose to power on the back of Serb indignation over the perceived

17    siege-like status of Serbs in Kosovo.

18            By 1990, Milosevic had abolished the limited autonomy that Kosovo

19    enjoyed, installed Serbs in positions of leadership in the province and

20    the Albanian language and culture were repressed.  During this period, the

21    LDK, or Democratic League of Kosovo, became a non-violent platform from

22    which Albanians could challenge Serb rule in Kosovo.  Hundreds of

23    Albanians -- hundreds of thousands of Albanians joined this movement.

24    Mr. Ibrahim Rugova, the current president of Kosovo, was in fact the LDK's

25    first leader.  By 1995, 1996, there was a growing disillusionment with the

Page 271

 1    LDK policy of non-violent resistance both from within the LDK itself and

 2    from outside it.

 3            The Dayton Peace Agreement in 1995 failed to address the issue of

 4    Kosovo and the Albanian people in Kosovo felt betrayed.  Support for the

 5    LPK and an armed uprising against the Serbs grew.  The LPK funded attacks

 6    on Serb security forces from 1992 onwards.  It organised military training

 7    in Albania.  The LPK and the emergent KLA attacked police targets, killing

 8    police officers, both Serbs and Albanians.  Serb refugee centres housing

 9    Serbs who had fled the conflict in other parts of Yugoslavia, were

10    targeted.  Serb unease and anger increased in the region and the reaction

11    of the security forces intensified.

12            Large numbers of Albanians were harassed, detained, and mistreated

13    by Serb security forces.  Albanians were taken into custody and detained

14    without trial.  Some died in police custody.

15            In 1997, Albania itself collapsed into anarchy and military

16    arsenals were broken into and robbed.  Weapons were now available in large

17    quantities to Kosovar Albanians who wanted to bring the fight to the

18    Serbs.  The KLA had existed since 1993, but it was the growing belief in

19    armed resistance to Serb rule, the sudden availability of weapons from

20    Albania, and the increasingly harsh actions of the Serb security forces

21    which led to their rapid and effective expansion in 1997 and 1998.

22            In February 1998, the Drenica region, a stronghold of the KLA at

23    the time, was targeted by Serb security forces who had the aim of

24    neutralising the KLA in the area.  In the process, they killed a number of

25    Albanian women and children.  Serb security operations on the Albanian

Page 272

 1    border to interdict weapons supplies to the KLA had the same results.

 2    Civilians fled and some were killed.  Villages -- Albanian villages were

 3    looted and destroyed.

 4            The KLA began to establish checkpoints on roads throughout the

 5    region.  Serb civilians living in these areas felt isolated and afraid.

 6    Many fled to Serbia itself or to areas of greater Serb concentration in

 7    the province.  Social and business interaction between the two communities

 8    dwindled and died.

 9            And so the province rapidly spiralled into brutal ethnic conflict.

10    It is in this context, Your Honours, against this backdrop, that the

11    crimes in the indictment took place.

12            It is fair to say of Kosovo that it is a place which has always

13    remained on the periphery of those states and empires who claim

14    sovereignty in the region, so the presence of state and state apparatus

15    has always been very limited.  Loyalties beyond family, clan, or local

16    village community have always been traditionally unstable or weak, and you

17    will see that in this case as the evidence unfolds.

18            If I could now briefly address you on the issue of armed conflict.

19    You'll see two paragraphs from the indictment, paragraphs 4 and 18, in

20    front of you.

21            The indictment contains charges under Article 3 and Article 5 only

22    of the Statute, war crimes and crimes against humanity respectively.  It

23    is settled in the jurisprudence of this Tribunal that Article 3,

24    violations of the laws and customs of war, and Article 5, crimes against

25    humanity, can be committed in both internal and international armed

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 1    conflicts.  The Prosecutor expressly pleads in paragraph 4 of the second

 2    amended indictment that after years of increasing tension and violence,

 3    armed conflict commenced between Serb forces and the KLA in early 1998.

 4    Taking paragraphs 4 and 18 together, we say that throughout the period of

 5    the indictment, an internal armed conflict existed between the forces of

 6    the then Federal Republic of Yugoslavia and the KLA, or Kosovo Liberation

 7    Army.

 8            All three accused state in their pre-trial briefs that they do not

 9    accept that a state of internal armed conflict, as that phrase is

10    generally understood in international criminal law, existed between the

11    forces of the then FRY, Federal Republic of Yugoslavia, and the forces of

12    the KLA for the relevant period.  The legal test to determine whether an

13    armed conflict existed at the relevant time was first set out by the

14    Appeals Chamber in the first case to be heard by the Tribunal, the

15    Prosecutor and Tadic.  And for the purposes of my opening, that test can

16    be summarised as follows:

17            The Prosecutor must show protracted armed violence between

18    governmental authorities and organised armed groups.  This calls for

19    presentation of evidence by the Prosecutor and, respectfully, scrutiny by

20    you, of the organisation of the parties to the conflict, firstly; and

21    secondly, consideration of the intensity of the conflict.

22            It is worthwhile, I think, Your Honours, for a moment to look at

23    the guidance given by the Appellate Chamber, now nearly ten years ago, in

24    Tadic.  In the interlocutory appeals decision subsequently applied by the

25    Trial Chamber in trial of Dusko Tadic it was stated that the temporal and

Page 275

 1    geographical scope of both internal and international armed conflicts

 2    extends beyond the exact time and place of hostilities.  And that you will

 3    find, Your Honours, at paragraph 67 of the appeals decision.

 4            What is the significance of this?  Well, the Appeals Chamber

 5    realised that in order to sensibly assess the nature of a conflict, one

 6    cannot limit one's attention to contextual events at or around the time

 7    and place of the specific offences.  In the instant case before you, I

 8    would, respectfully, submit to you that you must not only look at events

 9    in and around Lapusnik from May to July of 1998, but you must also

10    respectfully direct your minds to the evidence of events both before and

11    after the summer of 1998 which took place outside Lapusnik and the

12    municipality of Glogovac in determining whether an armed conflict was

13    taking place at the time period relevant to the indictment.  And I mean

14    specifically referring to Kosovo, not the whole of Yugoslavia, but

15    certainly I would respectfully submit that you would direct your minds to

16    evidence of armed conflict going on in other area areas of Kosovo apart

17    from the municipality of Glogovac.

18            What of the evidence?  Firstly, in respect of the organisation of

19    the parties to the conflict.

20            In a conflict, logically there are two sides.  In this conflict,

21    on one side there was the Serb police.  And as the conflict accelerated in

22    intensity, the VJ, the Yugoslav army.  On the other side was the KLA, the

23    Kosovo Liberation Army.  Dealing first with the Serb forces, you will hear

24    evidence that many of the police engaged were specialised combat units,

25    not exclusively regular police, which is a sign of how seriously the Serb

Page 276

 1    authorities regarded the threat from the KLA.  The VJ was at first

 2    deployed in the border regions.  And if you look at the map in front of

 3    you, you'll see that my colleague is showing you the border regions

 4    between Albanian and Kosovo.  The VJ was deployed in this region trying to

 5    stem the flow of weapons and materiel from Albania into Kosovo.  As 1998

 6    progressed, the army was increasingly used to bring the fight to the KLA

 7    inside Kosovo's borders.

 8            We do not anticipate that the level of organisation of the Serb

 9    forces will be disputed by the Defence.  However, evidence of Serb police

10    and army, organisation and operation, I would respectfully submit to you

11    is important so the Court can assess the amount of military assets, the

12    amount of police assets, that the KLA was engaging by the summer of 1998.

13    The evidence is relevant not only to assess the organisation and

14    effectiveness of the KLA, but also reflects on the intensity of the

15    conflict itself.

16            What of the KLA itself?  The Prosecutor does not dispute that in

17    1998 the KLA was a developing army.  One cannot equate the KLA of 1998 to

18    a modern, well-organised NATO military force.  We do not dispute that

19    until the late summer of 1998 the KLA was based on regional areas strongly

20    loyal to local commanders.  In the instant case, Fatmir Limaj, or Celiku,

21    being the local regional commander.

22            But a modern, sophisticated, mature level of organisation is not

23    necessary for the purposes of this legal jurisdictional test.  If that

24    were the requirement, if that were the jurisdictional requirement, then

25    one can realistically speculate that many conflicts around the world would

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 1    be beyond the reach of international criminal law.  You will hear evidence

 2    in this case from an international witness and a retired army officer that

 3    by the summer of 1998 the KLA was sufficiently well organised to have

 4    recognisable operational areas, logistical support in the forms of arms,

 5    munitions, and uniform resupply from Albania, to operate rudimentary

 6    headquarters throughout Kosovo, to recruit and train soldiers, and by

 7    May/June of 1998, to control the passage along arterial roads within

 8    Kosovo itself, which gave them control of territory.  So they were holding

 9    ground, which is what armies do.

10            Evidence of members of the KLA will corroborate the fact that by

11    the summer of 1998 the KLA was sufficiently well organised to mount

12    sustained military operations in many parts of Kosovo.  The Prosecution

13    will be offering into evidence a number of KLA communiques, or public

14    statements from the end of 1997 and throughout 1998.  In these statements,

15    the KLA emphasised on a number of occasions that it was an organised

16    military force conducting military operations as opposed to terrorist

17    attacks.  Here you will see, Your Honours, one statement from the 11th of

18    July of 1998.  The name of the individual bracketed, Krasniqi, was the

19    then spokesman for the KLA.  I will let you obviously read all of it.

20    I've put the whole quote in so as to give it context.  But if I could read

21    the last sentence:  "Under our present circumstances, no kind of Sinn Fein

22    can be accepted and we will not even begin to resemble the IRA," referring

23    to the Irish Republican Army.  "We are fighting for national liberation,

24    the UCK," which is the acronym but in the Albanian language for the KLA,

25    "is a liberation army and a regular military formation.  It is not an

Page 278

 1    organised or group that goes in for small-scale actions.  Our operations

 2    are rather large and bear a greater resemblance to those of a regular

 3    army."

 4            So at this time, in July of 1998, the KLA itself is declaring

 5    itself to be an organised military formation.  Most important, we know

 6    that by June of 1998, the first accused in this case, Mr. Fatmir Limaj,

 7    believed that the KLA was an organised structure with an authentic

 8    political and military structure, because he said so.  And I'm about to

 9    play a video, and underneath it you'll see that it is subtitled.  And this

10    is an extract, and I'd ask you to follow the subtitles underneath.

11                          [Videotape played]

12            MR. CAYLEY:  So, Fatmir Limaj at this time, you've just seen,

13    declared that the KLA was an organised structure with an authentic

14    political and military structure.  Now, we know that this statement is

15    referring to the period of June of 1998, because you will recall when you

16    read that, that Mr. Limaj referred to the first appearance of

17    Mr. Krasniqi.   And if I could show you this communique dated the 12th of

18    June, 1998, you will see that this is a communique announcing that the

19    Kosovo Liberation Army, or the KLA General Staff, had decided to appoint

20    Professor Jakup Krasniqi as its spokesperson or spokesman.  And this

21    statement we know, because it's dated, is from 12 June 1998.  So Fatmir

22    Limaj's statement on the organisation of the KLA is linked to this time

23    period, is linked to June of 1998, when he declared that the KLA was an

24    organised military structure.

25            Both Fatmir Limaj and Isak Musliu state in their pre-trial briefs,

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 1    at paragraph 17, that in 1998, the then Prosecutor of the International

 2    Criminal Tribunal, Louise Arbour, stated that she did not know whether the

 3    KLA constituted an organised military force answerable to the Geneva

 4    Conventions.  I cannot find that statement, but I will show you what I

 5    have found.  And if I could show you this next document.

 6            This is a public statement made by the Prosecutor on the 10th of

 7    March of 1998.  And it's regarding the Tribunal's jurisdiction over

 8    Kosovo.  I won't read it all to you, but you'll see the very last line,

 9    and she is referring to her mandate or jurisdiction, which she'd already

10    set out:  "This jurisdiction is ongoing and covers the recent violence in

11    Kosovo."

12            So that was the position of the Prosecutor on the 10th of March of

13    1998.  Now, the issues I know are linked, the organisation of the conflict

14    and the intensity of the conflict, but if I can now move on more

15    specifically to the second part of the test, the intensity of the

16    conflict.

17            On the 31st of March of 1998, the Security Council, acting under

18    its Chapter 7 powers, considered that the situation in Kosovo was so

19    serious as to constitute a threat to international peace and security.

20    And in front of you, you can see that document.  And here the Security

21    Council is condemning the use of excessive force by Serb police against

22    civilians and peaceful demonstrators in Kosovo, as well as all acts of

23    terrorism by the Kosovo Liberation Army, or any other group or individual,

24    and all external support for terrorist activity in Kosovo.

25            If I could have the next slide.  This same resolution also decided

Page 281

 1    that states should not supply weapons either to the Federal Republic of

 2    Yugoslavia or, in fact, to the Kosovo Liberation Army, although the KLA is

 3    not specifically referred to there, it refers to providing military

 4    materiel and equipment for terrorist activities.  Most importantly in this

 5    document is the last paragraph, which we could display now, which urged

 6    the then Prosecutor, Louise Arbour, to begin gathering information on

 7    violence in Kosovo that may fall within the jurisdiction of the ICTY.  It

 8    also advises the Federal Republic of Yugoslavia to cooperate with the

 9    Tribunal.

10            So that was the position, essentially, of the Prosecutor and the

11    Security Council in March of 1998.  Now, on the 7th of July, the

12    Prosecutor wrote to an organisation called the Contact Group, which you

13    may remember, which is a group of states that were essentially keeping a

14    watch over Kosovo.  This is a letter that she wrote to the then

15    ambassador, the United States ambassador to the United Nations, and this

16    is after several months of investigation into crimes in the region where

17    she confirmed that the situation in Kosovo met the legal definition of an

18    armed conflict, triggering the Tribunal's jurisdiction in the region.

19            Now, this was clearly a retrospective declaration based on several

20    months of investigation and work within Kosovo and was referring to crimes

21    that had already been committed in 1998.  Security Council Resolution 1199

22    of 23rd September 1998 noted this letter from the Prosecutor of the ICTY

23    and also expressed the view that the situation in Kosovo represented an

24    armed conflict within the terms of the mandate of the Tribunal.

25            Now, these representations by the Prosecutor, while not proving

Page 282

 1    that armed conflict existed, certainly, in my respectful submission, gets

 2    us part of the way there and certainly disproves the Defence assertion in

 3    their pre-trial brief that this office and the then Prosecutor believed in

 4    the summer of 1998 that there was no armed conflict in Kosovo.

 5            It's also interesting to note that by September of 1998, the

 6    Security Council was describing the fighting in Kosovo as intense and was

 7    expressing grave concern about reports of increasing violations of

 8    international humanitarian law.

 9            Security Council involvement continued and increased throughout

10    1998 and culminated in June of 1999 with Resolution 1244, which I've

11    already referred to, the establishment of the United Nations interim

12    administration in Kosovo.  By the 14th of August of 1999, all Yugoslav

13    forces had withdrawn from Kosovo and 40.000 NATO troops had deployed into

14    the region.

15            Evidence will be heard from an international witness and a former

16    army officer present in Kosovo and charged with monitoring the escalation

17    of the conflict, that over the time period of the indictment, from May to

18    July of 1998, the conflict expanded geographically and in its seriousness

19    and intensity.  Members of the Yugoslav army and the Serb police will

20    corroborate this witness in confirming that in the relevant part of 1998,

21    war escalated in the region.

22            The highly respected Human Rights Watch organisation spend much of

23    1998 documenting human rights abuses in Kosovo.  And if we could have the

24    next slide up.  I think this speaks for itself.  I'll read it, if I may,

25    into the transcript:  "The applicability of Common Article 3 and

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 1    Protocol II to the conflict in Kosovo.  The hostilities between the UCK

 2    and government forces had, by February 28th, 1998, reached a level of

 3    conflict to which the obligations of Common Article 3 apply.  Given the

 4    subsequent intensity of the conflict from March to September, Human Rights

 5    Watch is also evaluating the conduct of the UCK and government forces

 6    based on the standards enshrined in Protocol 2 of the Geneva Conventions."

 7            We will present this report to you and this finding through a

 8    witness from Human Rights Watch.  While, of course, again I emphasise,

 9    Your Honours, the Court is not bound by the finding of this international

10    organisation, I would submit that this evidence is relevant, its

11    probative, it's presented by a non-partisan group with vast experience and

12    expertise of conflicts and their nature around the globe.

13            Finally, members of the KLA and, as I've already stated to you,

14    members of Serb forces certainly believed that by the summer of 1998 they

15    were engaged in an armed conflict, and we will present evidence to that

16    effect from both parties.  And I'll just show to you -- it's a long

17    document, and I don't intend reading all of it.  But the interesting thing

18    about this is that it's a KLA communique on the right-hand side of the

19    page of the 13th of May of 1998, and on the left-hand side of the screen,

20    you see a report from the command of the Pristina Corps, which was the

21    main VJ formation present in Kosovo during this troubled time.  And you

22    can see that, on the left-hand side of the page, General Pavkovic, who was

23    the commander of the Pristina Corps, who's been charged by the Tribunal

24    with crimes during 1999, he is saying that the security situation in

25    Kosovo is getting more and more complex every day due to the operations of

Page 284

 1    Albanian terrorists, whose increasingly frequent attacks on Ministry of

 2    Interior members, citizens of Serbian nationality, and Siptar's Albanians

 3    loyal to the system are sowing fear and uncertainty.

 4            And if you go to the next box on that page, I won't read all of

 5    it, but it's worth mentioning, I think:  "By their manner of operation and

 6    application of intelligence and security, engineering and logistic support

 7    measures, the terrorist forces are increasingly taking on the attributes

 8    of a military organisation and are setting up units from platoon to

 9    company."

10            If we could go over to the next page.  The document on the right

11    remains the same.  The document on the left is the second page of the

12    report.  Here you can see General Pavkovic is estimating that by May, the

13    KLA held about 30 per cent of the territory in the country.  And you'll

14    see at the bottom of that highlighted paragraph that the Siptar, the

15    Albanian terrorists have large quantity of weapons of various calibres and

16    other equipment for guerrilla warfare.  They have problems with ammunition

17    shortages, which is why further attempts at forced entry over the state

18    border from the directions of Albania and Macedonia are to be expected.

19            If you look at the document on the right-hand side, you will see,

20    and I won't go through all of this, we'll deal with it in more detail with

21    a witness, but here the KLA is setting out the military operations which

22    General Pavkovic is speaking about in this report.  So Pavkovic, the VJ

23    general, is basically responding to military operations being carried out

24    by the KLA which are specified in this communique on the right-hand side.

25            If we could go to the next slide.  And now I've just put four

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 1    completeness sake the signature and stamp box of General Pavkovic, who, as

 2    I say, has been charged by the Tribunal.

 3            Mr. President, what time would you like me to go until?

 4            JUDGE PARKER:  We would normally think of breaking at about 20

 5    minutes to the hour.

 6            MR. CAYLEY:  Thank you.

 7            If I could now address you on paragraph 19 of the indictment.  All

 8    acts and omissions charged as crimes against humanity were part of a

 9    widespread and systematic attack direct against the Serb civilian

10    population and perceived Albanian collaborators.  Counts 1, 3, 5, 7, and 9

11    charge the accused with crimes against humanity.  The evidence in support

12    of those counts is identical to that evidence which we offer for the

13    charges under violations of the laws and customs of war.  Crimes against

14    humanity, like violations of the laws and customs of war, must be

15    committed in the context of an armed conflict.

16            Article 5, as Your Honours know, also requires proof that the

17    perpetrator must know that the acts, his acts, constitute part of a

18    pattern of widespread or systematic crimes directed against a civilian

19    population and know that his acts fit into such a pattern.

20            I mention this, Your Honours, because the accused dispute this

21    allegation.  They dispute that these crimes were part of a widespread and

22    systematic attack on the population.  So I will briefly address you on

23    this requirement.

24            The Stakic judgement, following -- Stakic trial judgement,

25    following Kunarac, identified factors which indicate a widespread or

Page 287

 1    systematic attack, noting in particular the consequences of the attack

 2    upon a targeted population, the number of victims, the number of acts, the

 3    nature of the acts, the possible participation of officials or

 4    authorities, and any identifiable pattern of crimes.

 5            Now, the Simic judgement confirmed that there is in fact no

 6    requirement in customary international law that acts which form part of

 7    the attack be connected to a policy or a plan.  So that very briefly is

 8    the law, and the law is set out in more detail in our pre-trial brief.

 9            Human Rights Watch, in a report documenting breaches of

10    international humanitarian law in 1998, to which I've already referred,

11    stated that from February to early September 1998, the KLA had violated

12    the laws of war by taking civilian hostages and committing summary

13    executions.  While the report contains statements by KLA officials

14    condemning kidnapping and human rights abuses, it also cites to an

15    announcement by the KLA spokesman, Jakup Krasniqi, in July of 1998, who

16    readily acknowledged that civilians connected to the army or the police

17    had been kidnapped by the KLA and that so-called Albanian collaborators

18    had been targeted.  And this is the announcement here that was made by

19    Krasniqi.  It's not entirely unequivocal, to be fair, and for that reason

20    I'll read the sections out that I've highlighted.

21            This is what he said in July of 1998, and you'll recall that this

22    is the gentleman who was the spokesman for the KLA, appointed in June of

23    1998:  "First of all, Serbian forces, whether the police, the military, or

24    armed civilians, are our enemy.  From the start, we had our own internal

25    rules for our operations.  These clearly lay down that the UCK recognises

Page 288

 1    the Geneva Conventions and the conventions governing the conduct of

 2    warfare.  We do not go in for kidnapping, even if some people have

 3    suffered, these have been more Albanian collaborators than Serbian

 4    civilians.  We do not deal with civilians, and we return those whom we

 5    take as prisoners of war.  Those we have kidnapped are either announced in

 6    a list or reported to be executed, but we do not behave in a base fashion

 7    like Serbia."

 8            So not an entirely unequivocal statement, but nevertheless an

 9    acknowledgment, in July of 1998, by the spokesperson for the KLA, that

10    they had kidnapped individuals who were either announced in a list or

11    reported as executed.

12            So based on the KLA's own public relations mechanisms, we know

13    that at a central level the KLA knew and publicly confirmed that there

14    were kidnappings and executions taking place.  The Prosecutor will offer

15    specific evidence of an Albanian man abducted by members of the KLA and

16    murdered just over a month after Jakup Krasniqi made this announcement.

17            Now, this you can see on the screen in front of you, is an

18    execution warrant.  The actual warrant is the manuscript document on the

19    right-hand side, the translation is on the left-hand side, and I have

20    blown this up.  And this is what the document stated.  This was found on

21    the body of this man that was murdered.  I will go into detail about

22    this:  "For collaborating with the occupier and spreading anti-Albanian

23    propaganda, causing fear, panic, and hatred in the name of the Albanian

24    people, and in the name of our war of liberation, Ramiz Hoxha [phoen],

25    from Belanica is sentenced to death as a traitor to the nation.  Such a

Page 289

 1    fate awaits any other traitor."

 2            Now, this death of Mr. Hoxha from Belanica was then confirmed in

 3    the press, and you can see that here.  Ramiz Hoxha, from Belanica village,

 4    executed earlier by the KLA, as well as being in long-term coordination

 5    with Agim Krasniqi [phoen], a member of the KLA Presidency.  The LDK

 6    Presidency.  My apologies.

 7            Now, the body of this man was found with the execution warrant,

 8    the document that I showed you before this one, attached, as I say,

 9    stating that he had been executed as a traitor.  No evidence exists of any

10    trial for treason, nor is there any evidence that Mr. Hoxha was in fact a

11    traitor.  You've seen the newspaper report which subsequently confirms

12    this man's death.  Human Rights Watch estimated that by the end of 1998

13    well over a hundred Serbs, and probably many more, had been abducted by

14    the KLA from Orahovac.  A number of these Serbs were released, and a

15    number simply vanished.  In July of 1998, a group of Serbs were abducted

16    and held by armed Albanians in Malisevo.  One escaped, the fate of the

17    other prisoners is unknown.  And the Human Rights Watch report goes on to

18    list the abduction of other Serbs, Roma and Albanians, throughout 1998.

19            The expert witness, Stephanie Schwander-Sievers, will confirm that

20    it was well known in the summer of 1998 that those members of the Albanian

21    civilian population who are against Serb rule did not unconditionally

22    support the KLA were brutally dealt with by the KLA.

23            In December of 1998, Susan Ringaard Pedersen, a Dane working for

24    the OSCE in Kosovo met with Serbs from all over Kosovo who were giving

25    accounts of missing persons allegedly kidnapped by the KLA in the summer

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 1    of 1998.  OSCE, the Organisation for Security and Cooperation in Europe,

 2    received reports of missing Kosovar Albanians and Romas.  Ms. Pedersen

 3    eventually met with the KLA commander in the Lapusnik zone who confirmed

 4    to her that the KLA did in fact have Kosovar Albanians in custody who were

 5    either collaborators or criminals.  Ms. Pedersen was referred to a

 6    gentleman by the name of Fahti [phoen] who was described as the head of

 7    the military police of the KLA.  Fahti confirmed that the KLA had

 8    individuals in custody, and he confirmed that prisoners were kept in

 9    private houses and moved, depending on Serb military advances.  Now, we

10    know that this is absolutely consistent with what happened in the Lapusnik

11    camp in 1998.  The camp was a makeshift affair located in agricultural and

12    domestic premises and it was moved.  The prisoners were moved once Serb

13    forces advanced into the area.  Ms. Ringaard, who will give evidence to

14    the Court, asked this Fahti for a list of prisoners at her meeting.  She

15    never received one.

16            Members of the Serb security forces will corroborate by documents

17    and oral testimony a well known and widespread policy in the summer of

18    1998 of the kidnapping of Serb and Albanian citizens by elements within

19    the KLA.

20            So the evidence, Your Honours, will paint a picture that as far as

21    the specific crimes that were committed in Lapusnik are concerned, they

22    are part of conduct which can be categorised as either widespread or

23    systematic.  Abductions were carried out over a period of months.

24    Abductions were carried out over a fairly broad geographical area.  Both

25    Serbs and Albanians were targeted.  The individuals abducted were brutally

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Page 292

 1    treated and murdered over this three months.  International observers from

 2    OSCE, from Human Rights Watch, identified a pattern of abductions of Serbs

 3    and Albanians in parts of Kosovo in the summer of 1998.  High officials, a

 4    high official within the KLA in July of 1998 and later in 1999 readily

 5    acknowledged that individuals were kidnapped, imprisoned, and in certain

 6    instances executed, showing at least an awareness of events on the ground,

 7    if not a condoned policy.  Serb security officials reported throughout

 8    this period a pattern of abductions and killings by the KLA of Serbs and

 9    Albanians.

10            Mr. President, I note it's 20 to and it's a convenient point for

11    me, if it is for you.

12            JUDGE PARKER:  We will have the first break now, resuming at 4.00.

13                          --- Recess taken at 3.40 p.m.

14                          --- On resuming at 4.02 p.m.

15            JUDGE PARKER:  Just before you continue, Mr. Cayley, could I

16    indicate that to this moment, the reports the Chamber has received about

17    the matter that was raised this morning and which has been the subject of

18    submissions by Defence counsel earlier, is not progressing satisfactorily,

19    and for that reason, the Chamber would now formally order that the

20    Registrar take all steps necessary to ensure that the accused in this

21    trial are not blindfolded during their movement between the detention

22    facility and this Tribunal.  We hope that, armed with that order, better

23    progress may prove possible.

24            Mr. Cayley.

25            MR. CAYLEY:  Thank you, Your Honours.  I've been requested if I

Page 293

 1    can go more slowly.  So I'm going to move a bit more slowly than I was.  I

 2    hope I wasn't going too quickly beforehand.

 3            JUDGE PARKER:  The need to translate, as I understand,

 4    progressively from one to another to another language, undoubtedly places

 5    great demands on the people trying to keep up with you.  So I think that

 6    would be a good move.

 7            MR. CAYLEY:  I'd like to briefly address Your Honours on the

 8    nature and identity of the victims in this case.  The victims in this case

 9    were Serbs and Albanians.  Serbs were specifically targeted because they

10    were Serbs, because they were identified with the ethnicity of the

11    security forces in Kosovo.  All of the Serbs except for one were

12    civilians.  One was a non-commissioned officer in the VJ, the Yugoslav

13    army, Stamen Genov, who was in fact an ethnic Bulgarian, but a Yugoslav,

14    serving in the Yugoslav army.  And I will deal with the circumstances of

15    his murder later in my opening.

16            Some of the Serb victims were refugees who had been relocated to

17    Kosovo from other parts of Yugoslavia.  So they, for whatever reason,

18    well, war was the principal reason why they had become refugees from other

19    parts of Yugoslavia.  They had been relocated by the authorities in

20    Belgrade to Kosovo.  But most of the Serb victims were in fact Kosovar

21    Serbs, ethnic Serbs born and brought up in Kosovo itself.

22            The Albanians who were targeted by the KLA we have referred to in

23    our indictment as perceived collaborators.  I emphasise the

24    word "perceived" because the evidence in this case will show that Kosovar

25    Albanians were often arrested for having had social contacts with the Serb

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 1    community.  They might have opposed Serb actions in Kosovo but disagreed

 2    with KLA methods.  Another Albanian might have been a former state

 3    employee, a forest worker, a former policeman.  None of this, none of

 4    this, of course, legitimises the brutality and killing that took place in

 5    Lapusnik between May and July of 1998.

 6            Now, if I may, Your Honours, I would like to address you on the

 7    law and, more broadly, more fully, in respect of the evidence for each

 8    count in the indictment.  I've already stated that the Prosecutor relies

 9    only on Articles 3 and 5 throughout the indictment.  The general legal

10    requirements of crimes against humanity and violations of the laws and

11    customs of war are found in paragraphs 100 to 109 of the Prosecutor's

12    pre-trial brief.  None of the accused challenge the Prosecutor's

13    characterisation of the law.  Of course they challenge the evidence.  So I

14    would, most respectfully, refer you to those paragraphs in the

15    Prosecutor's pre-trial brief.  The only areas of dispute on the law

16    between the Prosecution and the Defence I will, and I indeed have

17    addressed you on.

18            Counts 1 and 2, imprisonment.  Count 1 charges all three accused

19    with a crime against humanity; specifically, imprisonment.  In essence,

20    the law says this:  You cannot imprison an individual in wartime without

21    justification.  And even if you have justification, you cannot maintain

22    confinement unless there is compliance with the procedural safeguards of

23    the Geneva Conventions.  The evidence will show in this case that there

24    was no lawful basis for imprisonment.  As for compliance with the

25    safeguards of the Geneva Conventions, it barely justifies comment.  They

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 1    were never followed.

 2            Cruel treatment, count 2.  In count 2, we charge the unlawful

 3    detention in this case as cruel treatment, a violation of the laws and

 4    customs of war under Article 3 of the Statute.  The legal definition of

 5    cruel treatment was intentionally drafted widely to encompass all serious

 6    unlawful harm that non-combatants might be subjected to in warfare.  The

 7    definition is:  An act or omission which causes serious mental harm or

 8    physical suffering or injury or constitutes an attack on human dignity.

 9    And it must be committed against a person taking no active part in

10    hostilities.

11            Now, whilst unlawful imprisonment has not yet been categorised by

12    Chambers within the Tribunal as forming cruel treatment, the jurisprudence

13    clearly demonstrates that the courts have considered matters on a

14    case-by-case basis and that the offence of cruel treatment is part of a

15    group of core protections found in Common Article 3 of all of the Geneva

16    Conventions.  My submission to you is that to arbitrarily abduct and

17    imprison any person taking no active part in hostilities, with no legal

18    justification, no access to legal advice, no respect of the minimum

19    safeguards of the Geneva Conventions, no indication to the prisoner why he

20    is being detained, for how long he will be detained, where all around him

21    there is death and violence is, at the very least, a serious attack on

22    human dignity and warrants classification as cruel treatment and a

23    violation of the laws and customs of war.

24            Now, the three accused, while again of course taking issue with us

25    on our evidential basis, do not take issue with us on the assertion that

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 1    unlawful imprisonment is a form of cruel treatment.

 2            The evidence in this case will show that there was no legal basis

 3    for the abduction and imprisonment of any of the victims.  Persons were

 4    arrested and imprisoned because they were Serbs or because they were

 5    Kosovar Albanians, who were arbitrarily regarded as collaborators.  There

 6    was no evidential basis presented at the time for this classification.  In

 7    no case were the safeguards of Article 43 of the Geneva Conventions met.

 8    The evidence concerning abduction and imprisonment is remarkably

 9    consistent with respect to each subset of victims with respect to the

10    Albanian victims and with respect to the Serb victims.  All of the Serbs

11    were abducted in similar circumstances; the same can be said for the

12    Kosovar Albanian victims.

13            So while you will hear evidence in this trial of the abduction and

14    imprisonment of a number of victims, in my opening, I will limit myself to

15    providing an example to you from each ethnic group.

16            Without wishing to repeat myself too often, some general comments:

17    Individuals were abducted and taken to Lapusnik from May to July of 1998.

18    At the end of July of 1998, as a result of Serb military operations in the

19    area, the camp was evacuated and the remaining prisoners, in equal

20    measure, were either released or executed.  Only Albanian prisoners were

21    released.  By this time, all of the Serb prisoners, apart from two Serbs,

22    had been murdered.  And you will hear those two Serbs.  They will be

23    witnesses in this case.

24            Most victims were transported to the Lapusnik camp by vehicle.

25    Often victims were tied and blindfolded by placing sacks or blankets over

Page 297

 1    their heads.  In the worst instances, victims were placed in the boots or

 2    trunks of a motor vehicle and forced to remain there for hours on end

 3    whilst making their journey to the camp.  Many of those abducted were

 4    severely beaten on their way to the Lapusnik camp.  Some so seriously,

 5    they could no longer walk; in at least one instance, until they were

 6    beaten absolutely senseless.

 7            This is an account of one man whose fate was to be executed on the

 8    closure of the camp but who managed to survive.  You will hear his story

 9    in this courtroom.  He will be a witness in this case.  Rizah Rexhaj is

10    from the village of Petrov, and you can see the village of Petrov is

11    marked on the map and you can see Lapusnik here in the red square.  So

12    Lapusnik is here, Petrov is here, highlighted with the yellow highlighter.

13            A few days after the 4th of July of 1998, Rizah Rexhaj's

14    60-year-old father, Hetem, a farmer, a civilian, was taken by the KLA and

15    unlawfully imprisoned in the Lapusnik camp.  Rizah, the subject of this

16    account, searched for his father for two weeks, trying to speak with local

17    officials in the KLA to find some news of his father's fate.  He was

18    directed to Celiku, the first accused in this case, Fatmir Limaj, to

19    secure his father's release, but all to no avail.  Nobody would help him.

20            Very late one night, a group of armed KLA soldiers arrived by

21    vehicle at the family house in Petrov.  He was arrested, placed in a

22    vehicle, his head covered, and he was driven to the Lapusnik camp.  The

23    gates of the prison were opened by the third accused, Haradin Bala.  Rizah

24    was made to turn over all of his valuables to Haradin Bala, together with

25    his belt and shoelaces.  He was placed in a room in the main house in the

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 1    camp.  There were other prisoners there.  Haradin Bala asked Rizah why he

 2    was looking for his father.  And then proceeded to beat him so severely

 3    that he became unconscious.  Rizah witnessed a man who was in fact

 4    murdered, called Shaban Hoti, also being beaten.  His arms and legs

 5    secured by chains, covered in blood, were set about by three KLA soldiers,

 6    stamping on him, kicking him, like savages.

 7            You will hear the full description of this senseless butchery from

 8    Rizah Rexhaj when he testifies in this case.  Sport for guards.  Shaban

 9    Hoti was a professor and a linguist.  His only offence was to have worked

10    as an interpreter for a group of journalists of whom the KLA disapproved.

11    Rizah Rexhaj was constantly forced to witness this kind of violence, as

12    well as being beaten himself by both Haradin Bala and the second accused,

13    Isak Musliu.

14            On one occasion, Rizah Rexhaj saw Fatmir Limaj at the camp.  At a

15    later stage, Rizah Rexhaj was moved to the stable where he stayed until he

16    left Lapusnik at the end of July, in the face of the Serb military

17    advance.  At this time, Haradin Bala, under orders from Klecka and Fatmir

18    Limaj took the remaining 20-odd prisoners and marched them to the place

19    I've marked on the map here, Berisa.  You can see Berisa marked; you can

20    also see Lapusnik is marked.

21            Half of the prisoners were released and ten murdered by

22    firing-squad, led by Haradin Bala.  Rizah Rexhaj was supposed to be

23    executed that day on the mountainside, but his survival and courage is

24    actually why we're all here today.  He had the courage to come forward,

25    identify the accused, and show UNMIK the site of the killing.  This is how

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 1    the bodies were recovered and identified.  And I will give you more detail

 2    of that later in my opening.

 3            His father, Hetem Rexhaj, who he had originally gone to search

 4    for, who disappeared, he saw for the last time on the 26th of July.  His

 5    father had been kept in another part of the camp.  When the prisoners were

 6    all marched from Lapusnik to Berisa, his father was in the group, so he

 7    saw his father at that time.  His father was executed on the mountainside.

 8    A farmer, a civilian.  But his son, Rizah, would survive, and you will

 9    hear directly from him about this tragedy.

10            Serb victims were principally abducted and imprisoned in May and

11    June of 1998.  When the camp was evacuated in July, there were only two

12    known Serb survivors.  It is their story that I will tell, but it does

13    serve as a basis for the imprisonment of many of the Serb victims in this

14    case.

15            On the 29th of June of 1998, two Serbs, father and son, Vojko and

16    Ivan Bakrac, were taken from a bus travelling from Kosovo to Belgrade in a

17    village called Crnoljevo.  You can see marked on this map in front of you.

18    This road, essentially it comes from the south up from Suva Reka, travels

19    through Crnoljevo, and this is the road that they would have taken on

20    their way to Belgrade and Serbia proper.  At this time, in June of 1998,

21    Crnoljevo was the KLA stronghold, and the local commander there was

22    subordinated to the first accused in this case, Fatmir Limaj.

23            Many families of all ethnicities have suffered in this war in

24    Yugoslavia, but the tragic odyssey of the Bakracs, I think, is

25    demonstrative of the entire breakdown of this nation.  Vojko, an ethnic

Page 300

 1    Serb, born in Slovenia, his son Ivan, also an ethnic Serb, born in Zagreb,

 2    in Croatia, in 1979.  In 1992, Serbia and Croatia were at war with each

 3    other.  At the age of 13, Ivan and his family were forced to leave Zagreb

 4    and flee to Belgrade.  The Serbian authorities in Belgrade found his

 5    father Vojko work in Kosovo, in Djakovica, in a hotel.  The Bakracs soon

 6    realised that Kosovo was about to explode into ethnic conflict, and the

 7    family planned constantly to try and leave Kosovo and find a better life

 8    away from Yugoslavia.

 9            In June of 1998, the Bakracs will tell you that Kosovo was in

10    crisis, that the KLA was controlling many of the roads in the province,

11    and that it was very unsafe to travel on the roads if you were a Serb.  At

12    the time of their kidnapping by the KLA, the Bakracs were having to make a

13    final journey to Belgrade to obtain papers and permission to leave the

14    country for good.

15            The bus was stopped by members of the KLA at the village of

16    Crnoljevo, marked on the map.  Father and son will say that they were

17    removed from the bus with two other victims in this case, murdered

18    victims, Stamen Genov, and Djordje Cuk, the man that you will recall I

19    mentioned was a non-commissioned officer in the Yugoslav army.  The

20    second, Djordje Cuk, was a Serb civilian.  Father and son were very

21    frightened indeed, but they thought -- as they thought they were about to

22    be killed.  Mrs. Bakrac, Vojko's wife, remained on the bus.  She was

23    hysterical.  Each of us can imagine the scene.  On covering that Stamen

24    Genov was in the VJ, in the Yugoslav army, the Bakracs will state to the

25    Court that he was so badly beaten by members of the KLA that he could no

Page 301

 1    longer stand on his own two feet.

 2            Ivan and Vojko Bakrac were taken along with Stamen Genov and

 3    Djordje Cuk to a location which they cannot name but which both father and

 4    son have identified from photographs as the place -- as the location which

 5    the Prosecutor says is the makeshift detention camp at Lapusnik.  Ivan,

 6    the son, will identify the accused Haradin Bala as being a guard in the

 7    camp.  He identified Mr. Bala from a photo spreadsheet that was presented

 8    to him during interview and confirmed to the investigator that Haradin

 9    Bala was the man that he knew as Shala in the prison camp at Lapusnik.

10            The father, while unable to identify Haradin Bala from

11    photographs, provides a compelling description of the third accused in

12    this case and confirms that the man that he describes he knew as Shala,

13    the nom de guerre of Haradin Bala.

14            Recall, Your Honours, that Haradin Bala expressly acknowledges

15    being called Shala but denies being in Lapusnik after late May of 1998.

16    And there is no doubt at all, Your Honours, that the Bakracs were taken

17    and unlawfully imprisoned in the Lapusnik camp at the end of June of 1998.

18    Both witnesses describe very accurately the basement area of the camp,

19    where father and son were kept with a number of other Serb and Albanian

20    prisoners.

21            Being Serbs from Croatia, Ivan wisely lied and said they were

22    Croats rather than Serbs, hoping that this might save them.  They believe

23    that initially this may have saved their lives, although the KLA

24    subsequently realised that they were Serbs from Croatia.  Both witnesses

25    will go on to explain how, after seven days, the KLA decided to release

Page 302

 1    them.  Father and son were forced to make a statement on a video-recording

 2    by the KLA to say how well they had been treated at Lapusnik.  Then they

 3    were blindfolded, led to a vehicle, and driven to Malisevo, where they

 4    were released into the custody of the international committee for the Red

 5    Cross.  I would draw your attention, Your Honours, to an interview that

 6    I've already shown to you, with Jakup Krasniqi, the official spokesman for

 7    the KLA, who on the 10th of July, 1998, stated to a newspaper in Kosovo,

 8    "Koha Ditore," the following, and I'll read to you what he said:  "A few

 9    days ago, we handed over two Serbs originating from Croatia to the

10    International Red Cross."  And then he goes on to state part of the quote

11    that I read earlier:  "Those we have kidnapped are either announced in a

12    list or reported to be executed, but we do not behave in a base fashion

13    like Serbia."

14            So here Jakup Krasniqi is discussing, expressly announcing the

15    release of these two Serbs, of the Bakracs.

16            These two men are the only known Serb survivors from the camp.

17    Stamen Genov and Djordje Cuk were taken with them.  They've never been

18    seen again.  The circumstances of their murder I will deal with later in

19    my opening.

20            Counts 3 to 6, torture, inhumane acts and cruel treatment.  These

21    counts, Your Honours, cover the mistreatment of prisoners at the camp, the

22    physical abuse that was meted out to many of the victims, and also the

23    appalling conditions in which prisoners were forced to live.  The lack of

24    proper food, the grotesque hygiene conditions and the primitive and

25    barbaric manner in which many of the prisoners were chained up like

Page 303

 1    animals and made to lie in their own excrement, unable to move or walk

 2    about.

 3            Again, while the three accused dispute the evidence, they do not

 4    dispute our characterisation of the law, and you will find that in

 5    paragraphs 112 to 121 of the Prosecutor's pre-trial brief.

 6            Counts 3 and 4 both charge torture, first as a crime against

 7    humanity.  Counts 3 and 4 both charge torture, first as a crime against

 8    humanity, and secondly, as a war crime.  Tribunal jurisprudence confirms

 9    that the basic elements of the offence are the same, whether torture is

10    charged under Article 3 or under Article 5.  The only distinction -- the

11    only legal distinction between the two offences being the general legal

12    requirements of a crime against humanity.

13            Torture is distinguished from other forms of maltreatment on the

14    basis of the seriousness and purpose of the attack.  The purpose can be to

15    obtain information or a confession or, indeed, to just intimidate

16    somebody.  It is worth noting, Your Honours, that the purpose need only be

17    part of the motivation.  It need not be the sole or even the predominant

18    purpose of the attack.  The Krnojelac judgement provides some useful

19    guidance at paragraph 182, which respectfully, I think, will assist the

20    Court in making a finding on this count.

21            As to counts 5 and 6, we charge inhumane acts as a crime against

22    humanity and cruel treatment as a violation of the laws and customs of

23    war.  Again, the basic ingredients of the offences are the same.  The only

24    distinction being the additional general legal requirements of a crime

25    against humanity.

Page 304

 1            What of the evidence?  The evidence, Your Honours, in this case

 2    will show that while not all prisoners were beaten, those that were, were

 3    often beaten ferociously, repeatedly, and often until they fell into an

 4    unconscious state.  Physical violence and the intimidation and fear which

 5    arises from it was the very essence of the regime at Lapusnik.  In some

 6    instances, you will hear that prisoners were literally beaten to death.

 7            Survivors will say how they lost teeth, how they were beaten until

 8    ribs were broken, how men were literally broken down by repeated constant

 9    brutality.  Prisoners were beaten with fists, stamped on, kicked, attacked

10    with instruments.  Constant fear consumed all of the prisoners.  Each

11    could see the results of the latest attack.  Who would be next?  How long

12    would they be beaten for?  Who would beat them?  Would they survive

13    another beating?

14            Forensic evidence and the oral testimony of a survivor will show

15    that in one instance a prisoner was beaten so severely that the tibia bone

16    of his leg was literally cleaved in two.  I've already stated to you that

17    at the final execution site in Berisa, nine sets of mortal remains were

18    uncovered by UNMIK.  Those remains were examined by a forensic

19    pathologist, a forensic anthropologist, and Professor George Maat,

20    professor of anatomy and forensic anthropology at the University of

21    Leiden.  That forensic evidence will show together that these prisoners,

22    these dead that were recovered at Berisa had suffered traumatic injuries

23    to chest, forearm, lower legs, teeth, some of the injuries were described

24    as life-threatening.  All were consistent with having been stamped on,

25    received blows from fists or other blunt-force trauma.

Page 305

 1            The evidence will show, Your Honours, that those prisoners who

 2    were beaten were sometimes interrogated at the same time they were beaten.

 3    A number of prisoners will state that while they were beaten, they were

 4    interrogated by their torturers about their interaction with the Serb

 5    population in Kosovo.

 6            At other times, the evidence will demonstrate that the beatings

 7    took place as a severe form of intimidation.  I will leave it respectfully

 8    to Your Honours to decide when physical violence reaches such a threshold

 9    that it becomes torture, but I would respectfully suggest some markers for

10    you.

11            Firstly, the extraordinary intensity of the beatings in this case.

12    Secondly, the repeated nature of physical beatings or attacks on

13    individuals.  Thirdly, the state of victims after attacks.  And lastly,

14    the extended period over which attacks took place.

15            Prisoners were often tied up when they were beaten.  Sometimes

16    they were blindfolded.  Often, but not always, their torturers, KLA

17    soldiers in Lapusnik, had their faces covered when they were engaged in

18    this violence.  But often, prisoners came to know their torturers because

19    of the masked individual's the stature, his nickname, his nom de guerre,

20    his voice, the way in which he went about his beatings.

21            The other physical and mental abuse suffered by the prisoners were

22    the conditions of the detention itself.  Those prisoners in the stable,

23    and I think tomorrow when the first witness testifies you will see these

24    locations within the camp, you'll see what I mean by the stable.  Those

25    prisoners in the stable were essentially chained up like animals, unable

Page 306

 1    to move properly, dirty, bleeding, hungry.  On the provision of food and

 2    water, you will hear mixed accounts.  Prisoners taken early on, it seems,

 3    suffered more than those who came later.  Further, certain prisoners seem

 4    to have been targeted specially for abuse, which led to paltry rations or

 5    lack of drinking-water.

 6            Some prisoners talk about very little food or water being

 7    provided.  Others say it was not good, but it was adequate.  Hygiene was

 8    poor, and in my submission, deliberately so.  Where prisoners were allowed

 9    to relieve themselves, as opposed to being forced to foul themselves, they

10    had to share an overflowing and irregularly emptied bucket.  There was

11    virtually nothing in the way of medical care for the prisoners.  And in a

12    way, in a place where so much violence was inflicted on an institutional

13    basis, it is not surprising at all that prisoners were not cared for.  For

14    many of them, for many of them, Your Honours, they were simply confined to

15    this place with the sole intention of making them suffer as much as

16    humanly possible.

17            Haradin Bala is linked by a number of victims to the violence in

18    this camp.  He, it seems, was never masked.  Victims knew him by name and

19    nickname and described his appearance.  Some victims recognised him from

20    before the war.  Haradin Bala was involved in directly inflicting violence

21    himself and often stood guard while other KLA guards or soldiers did the

22    beatings.

23            Isak Musliu.  He was the immediate commander of those engaged in

24    the beatings and torture.  He seems to have often worn a mask.

25    Nevertheless, a number of victims name him either by his real name or

Page 307

 1    nickname, as a particularly violent individual, who was often involved in

 2    the beating of prisoners.  Some prisoners will describe how they were

 3    subjected to martial arts techniques, ferocious kicks and punches.  These

 4    accounts are linked to a degree by completely independent evidence to Isak

 5    Musliu.

 6            In front of you, you will see a document that was recovered from

 7    Isak Musliu's house.  It is a membership card of the Kosovo karate

 8    federation.  And on the next slide, you will see Mr. Musliu's name.  The

 9    next document is an extract from Mr. Musliu's police application form to

10    the Kosovo police service, where he describes himself as a first-level

11    master in karate.

12            Fatmir Limaj was often at the camp and was seen on a number of

13    occasions in amongst the prisoners.  The ongoing violence and the

14    conditions would have been obvious to him.  Limaj knew what was going on.

15    Indeed, he was part of it as the overall superior and approved of it. What

16    is more, with Isak Musliu in charge at Lapusnik, Fatmir Limaj was directly

17    responsible for what took place there.  Of course, as I have said,

18    individuals other than Haradin Bala and Isak Musliu beat and abused the

19    prisoners.  You will hear that.  But that violence was simply part of a

20    system of ill-treatment of which all three accused were a part.

21            The acts of the other guards in the camp who are not here before

22    you, by virtue of the joint criminal enterprise, are the acts of Fatmir

23    Limaj, the acts of Isak Musliu, and the acts of Haradin Bala.  Again, Your

24    Honours, I emphasise to the Court, and I show you a portion of the

25    pre-trial brief of Mr. Fatmir Limaj.

Page 308

 1            Fatmir Limaj, you will see about halfway down this extract, was

 2    based in Klecka.  From time to time, he would go to Lapusnik to assist

 3    with various operations.  He went to Lapusnik approximately 20 times

 4    during this time.  Now, that, Your Honours, is an admission by Fatmir

 5    Limaj in his pre-trial brief.  Now, his position is that he came to help

 6    with ongoing military operations, and you can see that from the document.

 7    Whilst he does not acknowledge being in the camp and while there are

 8    witnesses who place him in the camp, it is also absolutely inconceivable

 9    that he went to Lapusnik to help with military operations without being

10    aware of the camp holding all of these prisoners.  The front lines at

11    Lapusnik, the area of KLA military operations, is 350 metres away from

12    this camp.

13            If I could now, please, turn to the last counts in the indictment,

14    murder, counts 7 to 10.

15            Murder is charged in counts 7 and 9, as a crime against humanity,

16    and in counts 8 and 10 as a violation of the laws and customs of war.  As

17    with torture, the elements of murder are the same whether charged as a

18    crime against humanity or a violation of the laws and customs of war.  The

19    only difference being, I've said it before, I know I'm repeating myself,

20    the additional general requirements of the crime against humanity.  And

21    you will find at paragraphs 122 to 124 the law in respect of murder.

22            The first murder which you will find referred to in the

23    indictment, in paragraph 29, is the killing of Ajet Gashi, and you can see

24    his photograph before you.  Limaj and Musliu are charged under

25    Article 7(1) and 7(3) of the Statute with the unlawful killing of this

Page 309

 1    individual.  Ajet Gashi was a former police officer, an Albanian, who was

 2    dismissed from the police and tried on political grounds by the Milosevic

 3    regime.  Ajet's brother, Shesat Gashi [phoen], says that in May of 1998

 4    Ajet went to the KLA headquarters in Klecka.  His family thought he was

 5    there working for the KLA.

 6            On hearing nothing from him, Ajet Gashi's mother made inquiry at

 7    the KLA headquarters in Likovc.  She was told not to worry.  But she was,

 8    so she repeated her inquiries.  On her third inquiry, she was instructed

 9    by at KLA soldier at Likovc not to make any more inquiries about her son.

10    While Ajet's brother believes that Ajet was kept in Lapusnik camp, you

11    will also hear direct evidence from one witness who saw him in Lapusnik

12    camp from mid-May of 1998.  Ajet Gashi, like a number of other prisoners,

13    was made to write a confessional account about his life.  In some

14    instances, we have those statements that were made by those prisoners at

15    Lapusnik.

16            Evidence will show that Gashi was kept in what I have described to

17    you as the stable, an area of the compound where animals would normally be

18    kept.  He was very badly beaten, indeed.  You will hear evidence of the

19    circumstances of Gashi's execution.  The evidence will show that at around

20    the 10th of June of 1998, Ajet Gashi was taken from Lapusnik by a number

21    of soldiers and guards from Lapusnik camp.  On the Magura road at the

22    Laletic turn-off - and I've marked that on the map for you here, Your

23    Honors.  You can see the villages of Laletic and Magura marked.  On the

24    Magura road at the Laletic turn-off, he was executed by automatic gunfire

25    by two KLA soldiers under the command of Isak Musliu and Fatmir Limaj.

Page 310

 1    The evidence will show that Ajet Gashi was murdered on military order.

 2            Evidence will be led that such an order would have gone to

 3    Lapusnik and would have come from Klecka, Fatmir Limaj's headquarters.

 4            The corpse of Ajet Gashi was found and recovered by his family

 5    near the spot where he was murdered between Magura and Laletic.  Court

 6    documents and newspaper articles of the time will be produced confirming

 7    his murder.  Here is one from "Koha Ditore" confirming a person killed at

 8    the Goles Pass two days ago was identified today.  Reports state that this

 9    person is Ajet Kamba [phoen] Gashi from Glogovac in Malisevo.  Ajet was

10    shot with five bullets in the chest.  His body remained on the roadside at

11    the entrance to Magura for two days and had begun to decay, left there as

12    an example to others.

13            All of Kosovo was on notice in June of 1998 of Ajet Gashi's

14    killing. The family recovered the body and buried it in the village

15    cemetery in Glogovac.  In 2003, the OTP, the Office of the Prosecutor,

16    sought permission to exhume the body from its grave site in order to

17    perform an autopsy and anthropological examination.  That was duly done

18    and the findings of that examination confirm that the cause of death was

19    as a result of multiple gunshot wounds to trunk and head.

20            Now, if I could turn Your Honours' attention to murder of those

21    individuals set out in Annex 1 of the indictment.  All of these men were

22    taken by the KLA between 24 June 1998 and 26 July 1998.  They were all

23    imprisoned at Lapusnik and then murdered.  All except one were civilians.

24    All except one a Serb.

25            As I have said, Stamen Genov, an ethnic Bulgarian and Yugoslav,

Page 311

 1    was serving as a sergeant medic in the VJ but off duty when arrested.

 2    Fatmir Limaj and Isak Musliu are charged under both Article 7(1) and 7(3)

 3    of the Statute with the murder of these eight men.  Here in this

 4    photograph, on the left-hand side, you see Milovan Krstic, and on the

 5    right-hand side, Miodrag Krstic.  In this photograph, you see Boban

 6    Mitrovic.  When they were murdered in 1998, Milovan Krstic, the first

 7    gentleman that you saw on the left-hand side, was 28 and married with two

 8    children; Miodrag Krstic was 34 and married with four children.  This

 9    gentleman on the screen now, Slobodan Mitrovic, was married with twins.

10            Milovan and Miodrag Krstic were brothers.  Slobodan Mitrovic was

11    their cousin.  The three men were good friends as well as relatives.  They

12    all lived in Racak, in Suva Reka, in Kosovo.  And you can see that there

13    marked on the map.  They didn't actually live in Suva Reka.  They lived in

14    a village near Suva Reka but it's in that area of Kosovo.

15            Prior to the war, all three had married, settled down, found jobs,

16    gone about their lives peacefully with their Albanian neighbours.  Indeed,

17    Slobodan Mitrovic had many Albanian friends and spoke the language.

18    Slobodan, or Boban, as he was known had married Ljiljana in 1982, and 1991

19    the twins, Alexander and Ana, were born.

20            In mid-June of 1998, Slobodan Mitrovic was warned by an Albanian

21    friend that he should move his family, his young children, to Serbia

22    because he was in grave danger.  So on the 14th of June of 1998, he moved

23    his wife, Ljiljana, and the children to relatives at Arandjelovac in

24    Serbia.  He returned to Racak in Kosovo.

25            In June of 1998, Miodrag Krstic, who was the gentleman that you

Page 312

 1    saw on the left hand photograph, the second photograph that I showed you,

 2    had been receiving urgent medical treatment in Belgrade, Serbia.  On

 3    June 23rd, Milovan Krstic and Slobodan Mitrovic went to Belgrade to

 4    collect him and bring him back to his family in Kosovo.  The two men had

 5    travelled via Arandjelovac in Serbia.  Whilst Slobodan Mitrovic had kept

 6    in regular contact with his wife whilst they had been apart, he decided

 7    that he wanted to surprise her and the children.  The security situation

 8    in Kosovo was now dreadful.  Ljiljana, his wife, knew it and she pleaded

 9    with him to stay with the family in Serbia.

10            Milovan Krstic did not want to travel back to Kosovo with his sick

11    brother alone, so against his wife's pleas, Boban went on with him to the

12    hospital in Belgrade.  Ljiljana and the twins would never see Boban again.

13    Milovan Krstic and Slobodan Mitrovic stayed the night of the 23rd of June

14    of 1998 in Belgrade with relatives.  Miroslav Krstic, the uncle of Milovan

15    and Miodrag, had called them that night from Kosovo and warned them of the

16    danger of travelling back to Suva Reka through Crnoljevo.  You will recall

17    the location where I've already indicated the Bakracs and Djordje Cuk and

18    Stamen Genov were kidnapped by the KLA.  For here there was a KLA

19    checkpoint.

20            Nevertheless, the next morning, the two men collected Miodrag

21    Krstic from hospital and then the three friends started their journey back

22    to Kosovo.  Not heeding the advice of their uncle, they travelled back

23    through Crnoljevo.  The police confirmed that the three men crossed the

24    border into Kosovo from Serbia sometime between 3.20 and 3.30 on the

25    afternoon of the 24th of June, 1998.  Sometime after this they were

Page 313

 1    kidnapped in Crnoljevo by the KLA and taken to Lapusnik.  And I've marked

 2    again for you on this map the location of Lapusnik, here, and the location

 3    of Crnoljevo, the KLA checkpoint, here, and the area where the village of

 4    Racak where the three men lived, is near to Suva Reka.

 5            Here all three men were seen by survivors in the cell which was

 6    the storage room in the camp at Lapusnik.  These three men have never been

 7    seen since, either in Lapusnik or having been taken from Lapusnik by

 8    guards in the camp.  They were murdered.

 9            Your Honours, in providing you with faded glimpses of a man's

10    life, I'm not appealing to your emotions.  I'm simply emphasising the

11    repercussions and the damage beyond death that these three accused have

12    caused by their acts.  Ljiljana, Boban's Mitrovic's wife we'll bring to

13    the Court so she can describe her husband for you.  She describes an

14    absolutely wonderful man who loved her and the children.  He would always

15    call them if he was away from the family.  She will describe the daily

16    battle between hope and despair that she goes through every day.  She is

17    certain that if her husband were alive over six years later, he would find

18    a way to get to her and the children.

19            Of course, this man is dead.  But because there is no body,

20    because his remains were almost certainly buried in secret, there is no

21    end to this matter for this family, no end for the grief for her and the

22    children.  These people lead lives of suspended animation, where they can

23    neither go forward for backwards, and these proceedings may at least bring

24    closure for one family to make peace with the past and move on with the

25    future.

Page 314

 1            The next victim is a man called Miroslav Suljnic.  You see his

 2    photograph here.  He lived in Vidanja in Kosovo with his parents,

 3    brother, and sister.  He worked in a sawmill in Doberdol village.  From

 4    the 10th of May of 1998 to the 21st of May of 1998, he had worked solidly

 5    at the sawmill and had not been home.

 6            On the 21st of May, he began the journey home, sometime between

 7    4.00 and 4.30.  Miroslav arrived at the Serb MUP checkpoint at Komorane on

 8    the Pristina-Pec road.  He was warned not to continue with his journey by

 9    the Serb police because he was told that the KLA had a checkpoint at

10    Lapusnik, the location of the camp, which I've already shown to you on the

11    map.

12            Miroslav Suljnic had never had problems previously with his

13    Albanian neighbours, and he believed that he was going to be safe and so

14    he ignored the warning and carried on with his journey.  At the

15    checkpoint, at Lapusnik, he was taken by the KLA to the camp at Lapusnik

16    where he was imprisoned.  A survivor from the camp confirms his presence

17    at Lapusnik at the end of June/beginning of July of 1998.

18            The Serb security forces, when they retook this area at the end of

19    July of 1998, found the following document.  On the right-hand side, you

20    can see a handwritten document, and in English, you can see the

21    translation.  So the Serb security forces found this document:  "I am

22    Miroslav Suljnic, born on 8 June 1996."  It's written as that.  "Worker by

23    profession, captured by the Kosovo Liberation Army in Lapusnik on the 21st

24    of May."

25            As I've said, Your Honours, a number of witnesses will say that

Page 315

 1    they were obliged to write a confessional account about their lives for

 2    the purposes of interrogation by members of the KLA.  Jeremija Suljnic,

 3    the victim's brother, will say that this is definitely his brother's

 4    handwriting.  Now, while the document states that he was born in 1996, of

 5    course, we know that Miroslav Suljnic in 1998 was a grown man; in fact, he

 6    was born in 1969.  He reversed the numbers.  And in a sense, such an

 7    error, in my submission, adds to the authenticity of this document.  We

 8    can all of us imagine somebody very frightened indeed writing this out

 9    while imprisoned in Lapusnik camp.

10            The family has never seen Miroslav again, for he was murdered

11    either at Lapusnik or having been taken from Lapusnik between 24 June 1998

12    and 26 July 1998.

13            The next victim is a man who you see in front of you now by the

14    name of Zivorad Krstic.  He is no relation to Milovan and Miodrag, the two

15    that I've already referred to.  This man was a retired widower living in

16    Pristina in 1998.  He was 68 years old.  He had three daughters.  His wife

17    had died when the children were young, and according to his son-in-law, he

18    had committed his life to raising his three girls.  He is described by

19    witnesses as a gentle soul who was universally liked and respected by both

20    his Albanian and Serb neighbours.

21            At the time of his kidnapping, he was being treated for diabetes.

22    He had recently had eye surgery to remove cataracts from both eyes.  He

23    was a sick man.  On the 23rd of June of 1998, he travelled from Pristina

24    to a village outside Prizren to attend his brother's funeral.  His brother

25    had recently passed away.  On the 25th of June, he was put on a bus by his

Page 316

 1    dead brother's son, Vekmir [phoen] Krstic, to return him to Pristina.  The

 2    bus left at 10.00 or 11.00 in the morning.  Evening came, Your Honours,

 3    and Zivorad had not arrived in Pristina.  Checks were made with the police

 4    in Prizren and the police confirmed that the bus had been stopped by the

 5    KLA in, again, the village of Crnoljevo.  And you can see here, Crnoljevo,

 6    Crnoljevo.

 7            Zivorad Krstic was taken from the bus by the KLA.  His identity

 8    card and the few belongings that he had with him were returned to the

 9    family.  Days later, Stojan Stojanovic, Zivorad's son-in-law, heard the

10    news that Ivan and Vojko Bakrac, the two Serbs that I referred to who were

11    released, had also been kidnapped in Crnoljevo and that they had just been

12    released by the KLA through the Red Cross.  Stojan Stojanovic, the

13    victim's son-in-law, made contact with the Bakracs and he showed them a

14    photograph of his father-in-law, and they confirmed -- the Bakracs

15    confirmed that Zivorad Krstic had indeed been in the Lapusnik camp, that

16    he had introduced himself to them and told them who he was and where he

17    was from.

18            Zivorad Krstic has never been seen by his family, and it is the

19    Prosecutor's case that he was either murdered in Lapusnik or murdered

20    having been taken from Lapusnik by guards from the camp, a sick man

21    returning from his brother's funeral, murdered for being a Serb.

22            The next two victims that you can see in front of you are Stamen

23    Genov and Djordje Cuk.  Stamen Genov you see to the right in a military

24    uniform.  I've already stated to you that he was a medic in the VJ at the

25    time of these events.  The other gentleman on the left-hand side is

Page 317

 1    Djordje Cuk.

 2            Djordje Cuk was a young Serb born in Croatia.  In 1995, his family

 3    left Croatia because of the war in that region, and, as I've already

 4    stated to you, along with many other Serb refugees, was relocated with his

 5    parents and brother to Djakovica, in Kosovo.  On the 29th of June of 1998,

 6    he was travelling by bus from Djakovica to Belgrade in the same bus

 7    carrying the Bakracs.  The bus was stopped by KLA troops, as I've already

 8    said, at Crnoljevo.  Everybody's papers were checked and Djordje, along

 9    with the three other men, was taken off the bus.

10            In addition, Djordje Cuk, the ethnic Bulgarian, a serving member

11    of the VJ, was removed with him.  Stamen Genov, as it happens, was off

12    duty and en route to see his girlfriend in Krusevac.  The Bakracs will say

13    that both Djordje and Stamen were extremely frightened.  All four of the

14    victims were taken by the KLA to a school where they were all interrogated

15    about their background.  Stamen Genov was quickly identified from his

16    military identification papers.  He and Djordje Cuk were then severely

17    beaten.

18            Stamen Genov was beaten until he was unconscious.  Djordje Cuk was

19    also so badly beaten that when the KLA soldiers came to move the four of

20    them to Lapusnik, he could not stand on his own two feet.  At Lapusnik,

21    both Genov and Cuk were both beaten.  Stamen Genov was subjected to

22    particularly brutal treatment because he was a member of the Yugoslav

23    forces.  Witnesses will say that Genov was so severely beaten that

24    eventually he begged his fellow prisoners to kill him.

25            At the end of July of 1998, when Serb forces overran Lapusnik,

Page 318

 1    copies of Genov's interrogation notes were recovered from the site, and

 2    you can see those in front of you now.  I'm not going to go through them

 3    in detail.  I don't know how well those appear on your screens, but the

 4    notes begin:  "My name is Stamen Genov."  It says where he was born, when

 5    he was born and then it proceeds to list details of the Yugoslav military

 6    garrison in Djakovica.

 7            It was at this same time - and if we could move to the next

 8    document - that the Serb security forces in Kosovo confirmed his death.

 9    And the Prosecution will produce minutes of a meeting held on the 30th of

10    July.  You can see here meetings of the joint command for Kosovo.  These

11    were meetings held by officials in the Serb army, the Serb police, and the

12    Serb civilian administration that was set up as a joint command to deal

13    with the crisis situation in Kosovo at the time.  If we could move to the

14    next slide.

15            Here you see on the 30th of July the group discussing the fact

16    that Corporal Genov was killed, referring to Stamen Genov.

17            There's no doubt, Your Honours, from all of the accounts that you

18    will hear that this young man, a medic in the VJ, was subjected to a level

19    of brutality which frankly describes [sic] description.  He died at or

20    outside Lapusnik, almost certainly bludgeoned to death.  Neither Djordje

21    Cuk nor Stamen Genov have of course ever been seen again by their

22    relatives.  Both men are dead, murdered by guards from the camp at

23    Lapusnik, either in Lapusnik or taken from Lapusnik.

24            Sinisa Blagojevic.  You see a photograph before you here now.  He

25    is the man on the right-hand side of the picture.  Sinisa Blagojevic was

Page 319

 1    32 years old in June of 1998.  He came from and lived in the village of

 2    Krajiste, which is a mixed Albanian Serb village in Kosovo.  He was one of

 3    six children, he being the eldest and the head of the family.  He was

 4    married with two small children of his own.  He worked for the state as a

 5    forest guard or ranger at Lipovica and had an apartment in Vusevac [phoen]

 6    which was provided by his employer for the purposes of his work.

 7            On the 22nd of June, Sinisa was told that his apartment in Vusevac

 8    had been looted and vandalised earlier in the week.  Sinisa and his family

 9    were told by the police that it was not safe to go there to inspect it,

10    but nevertheless they went and recovered what they could from Sinisa's

11    apartment.  Sinisa kept livestock near his work apartment, and they talked

12    about taking the livestock away with them that day.  They decided not to.

13    Instead, Sinisa would come back the next day.  He set off on his tractor

14    the next day and was never seen again by his family.  The police told his

15    brother the KLA had been active that day in Vusevac and further

16    information indicated that a KLA checkpoint had been in the village at the

17    time.

18            Sinisa was in fact taken by the KLA to Lapusnik and then murdered.

19    Again, he's never been seen again since his kidnapping.

20            If I could now move, please, Your Honours, to Annex 2 of the

21    indictment.  These four men were murdered in mid-July 1998 at or near the

22    Lapusnik prison camp.  Just to remind you, I'm repeating what I've already

23    said in respect of these murders, Fatmir Limaj and Isak Musliu are charged

24    under Article 7(1) and 7(3) of the Statute.  Isak Musliu and Haradin Bala

25    and also charged with direct participation in or aiding and abetting the

Page 320

 1    murder of these four individuals.

 2            The two individuals on the screen in front of you, the one on the

 3    left-hand side is a man called Jefta Petkovic and the younger man on the

 4    right-hand side is Zvonko Marinkovic.  Zvonko Marinkovic was a young Serb

 5    man who lived in a village called Musutiste with his wife, Svetlana

 6    Marinkovic, and their two young children aged 8 and 3 at the time of these

 7    events.  He shared the house with his brother and his brother's wife and

 8    children.  You will hear from his wife that the family was a close one

 9    that enjoyed eight good years of marriage prior to his disappearance and

10    death.  He worked for a company called the Balkan company.

11            Jefta Petkovic, the gentleman on the left, the left photograph,

12    from the village of Racak in Suva Reka worked with Zvonko Marinkovic as a

13    trucker driver for the Balkan company.  On the 23rd of June of 1998,

14    Zvonko telephoned his wife Svetlana to tell her he was coming home from

15    Belgrade in a company truck with Jefta Petkovic that day.  That is the

16    last time his wife heard from him.

17            On the 24th of June, both men were taken from the Balkan company

18    truck near the village of Crnoljevo.  Again, the same location where there

19    was located a KLA checkpoint and taken to the KLA detention facility at

20    Lapusnik.  They were both civilians, both Serbs.

21            Survivors from the camp identify both Zvonko and Jefta from their

22    photographs as being present in the camp, although it is often the case

23    that names were never known or were confused because prisoners were not

24    always able to speak with each other.  Jefta and Zvonko suffered the

25    brutal regime that I've already described for you.

Page 321

 1            Prior to the evacuation of the camp at the end of July of 1998,

 2    Zvonko Marinkovic and Jefta Petkovic were murdered.

 3            The next two victims that you see in front of you of are Agim

 4    Ademi, on the left, and Vesel Ahmeti on the right.  In June of 1998, Agim

 5    Ademi and Vesel Ahmeti were both kidnapped from the village of Gorance and

 6    taken to the KLA detention facility at Lapusnik.  Both men were chained up

 7    in the cowshed and both were subjected to ferocious beatings.  In the

 8    middle of July, both of these men were murdered.

 9            The next individual that you see in front of you is a man by the

10    name of Fehmi Xhema, also know as Fehmi Tafa.  On the 13th of June 1998 a

11    man named Vebi Tafa [phoen] from the village of Crnoljevo -- and just so

12    there's no confusion, Your Honours, this is a man who is distinct from the

13    victim. This man's name is Vebi Tafa, the victim's name is Fehmi.

14            So a man named Vebi Tafa from the village of Crnoljevo had gone

15    missing from his home.  So again, the same location, Crnoljevo where the

16    KLA checkpoint existed, where many of the Serbs victims were taken from

17    vehicles.  The next day, the 14th of June of 1998, his brother, Fehmi

18    Tafa, the man in this photograph, went to look for him.  Fehmi Tafa was

19    soon detained by two KLA soldiers from the village of Crnoljevo.  He was

20    taken to the local KLA headquarters where he was tied and blindfolded and

21    placed in a car.  First of all, he was taken to the village of Klecka,

22    where Fatmir Limaj's headquarters was located, and then he was driven to

23    the camp at Lapusnik.  He was brought out of the car and brought into a

24    cell at Lapusnik.

25            Sometime after the 14th of July -- 14th of June, I'm sorry, of

Page 322

 1    1998, Haradin Bala and Isak Musliu and two other soldiers came into the

 2    cell where Fehmi Tafa was being held.  They told him to stand.  He was

 3    tied and blindfolded.  The other prisoners in the room were ordered to

 4    look away.  The four guards, including Isak Musliu and Haradin Bala, took

 5    Fehmi Tafa away.  Later, Haradin Bala and Isak Musliu dragged Fehmi back

 6    into the cell.  He was half unconscious.  He had been savagely beaten.  He

 7    could barely speak.  He was in a terrible state from the beating.  He

 8    begged for water and complained of pains in his chest.  One of the

 9    prisoners asked Haradin Bala for some water for Fehmi.  It was refused.

10    20 minutes later, Fehmi died in his filthy cell, beaten to death.  Bala,

11    Haradin Bala, was informed that Fehmi was dead.  The cell was guarded

12    closely for 24 hours by Bala and another guard and then the body was

13    removed by Haradin Bala and other soldiers.

14            And finally, Your Honours, if you would turn to Annex 3.  I'm

15    sorry.  If you have the indictment in front of you.  But I will turn to

16    Annex 3, where you will find the names of ten dead.  The relevant

17    paragraphs of the indictment are 34 to 37.

18            JUDGE PARKER:  Judging by the time, Mr. Cayley, it's probably

19    better to break now before you start on this further group in your

20    opening.  We will have the second break now, to enable the interpreters to

21    have a little rest and to enable the tapes to be changed.  And we'll

22    resume, I think, at 20 minutes to 6.00.

23            MR. CAYLEY:  Your Honour, if I could give you some guidance for

24    how much longer for the sake of the Defence so they know where they

25    stand.  I think I will probably be about another hour, perhaps slightly

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 1    less an hour.

 2            JUDGE PARKER:  Well, I think we will not call on the Defence this

 3    evening, if that's the case, just so they're not any misunderstanding.

 4                          --- Recess taken at 5.16 p.m.

 5                          --- On resuming at 5.41 p.m.

 6            JUDGE PARKER:  Mr. Cayley, the last person that you mentioned

 7    appears not to be on Annex 2.  Is that correct?

 8            MR. CAYLEY:  That's right, Your Honour.  You'll find that

 9    individual in paragraph 32 of the indictment.

10            THE INTERPRETER:  Microphone, please.

11            JUDGE PARKER:  Thank you.

12            THE INTERPRETER:  Microphone, please.

13            MR. CAYLEY:  Finally, Your Honours -- sorry, Mr. President.  May I

14    continue?

15            Finally, Your Honours, if I could refer you to Annex 3 of the

16    indictment, where you will find the names of ten dead.  The relevant

17    paragraphs in the indictment are paragraphs 34 to 37.  And in respect of

18    these crimes, Fatmir Limaj and Haradin Bala only are charged under 7(1)

19    and 7(3) of the indictment.  Fatmir Limaj and Haradin Bala are charged

20    under 7(1) of the Statute for planning, instigating, ordering, committing,

21    or otherwise aiding and abetting; and Fatmir Limaj only is also charged

22    under 7(3) of the Statute.

23            On the 26th of July of 1998, an offensive was launched by Serb

24    security forces in the area against the KLA stronghold at Lapusnik.  We

25    know this from the prisoners in the camp who heard shooting and shelling,

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 1    and we also know it from Serb military documents which, if I had more

 2    time, I would show you.  But we will produce them in evidence.  But

 3    essentially, military reports from the Serbs demonstrating that there was

 4    an offensive in the area of Lapusnik on the 26th of July.  So essentially

 5    confirming what the prisoners actually heard within the camp.

 6            As the Serb advance crept forward towards Lapusnik and the prison

 7    camp, Haradin Bala and another guard moved all of the remaining prisoners

 8    in the camp into the central compound, and you'll see that in more detail

 9    with Mr. Lehtinen's evidence when he will take you, as it were, on a

10    visual tour within the camp.  We have what's called rather unfortunately a

11    virtual reality presentation of the camp which enables you to essentially

12    walk through the camp as if you were there.  But you will see this

13    particular area that I'm referring to, the central compound.

14            There were 20 individuals gathered, all of them Kosovar Albanians,

15    as I've said, all of the Serbs, the remaining Serbs, were by this stage

16    dead, murdered.  Bala told the prisoners that they had to leave Lapusnik

17    and that they would go towards Berisa.  And you can see on the map in

18    front of you, I've shown you where Berisa was before.  I've marked it

19    there again.  And the mountains.  Anybody trying to escape would be

20    executed on the spot.  The prisoners were, as you can imagine, in

21    absolutely appalling sight.  Beaten, weak, covered in their own excrement.

22    I've already mentioned to you that one prisoner, Shyqyri Zymeri, had been

23    beaten so savagely that his tibia was broken in two.  He could not walk,

24    and so you will hear evidence that the other prisoners had to take turns

25    in carrying him up the hillside.  This is rough terrain, Your Honours.  It

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 1    would have been a challenge for a fit group of individuals.  These people

 2    were in no fit state to be walking up into the mountains above Lapusnik.

 3            The prisoners walked for some time, and eventually came to a spot

 4    where a forest trail crossed their path.  Here you will hear evidence that

 5    Fatmir Limaj arrived with an escort and spoke with Haradin Bala for a

 6    number of minutes.  Fatmir Limaj then departed, leaving behind him a KLA

 7    soldier from his own escort who would become the third member of the

 8    escort for those prisoners who were executed.  The ragged group walked on

 9    and stopped near a brook and some fruit trees.  Bala then divided the

10    prisoners into two groups.  The prisoners knew something was afoot.

11            The first group, which included over ten prisoners, was taken to

12    one side.  Haradin Bala gave each of these prisoners a written authority

13    in the name of Commander Celiku, Fatmir Limaj, stating that they had been

14    released.  This group then made their way to a KLA headquarters in

15    Kishna Reka which you will see marked on the map there below Lapusnik.

16    Here they were detained for a short period of time and were then

17    transferred to a location called Kroimire, which you can also see marked

18    on the map here, beneath Klecka.

19            Bala returned to the remaining prisoners, those that had not been

20    released, and called out the names of one after the other.  The group was

21    marched into a clearing in the forest by Haradin Bala and two other

22    guards.  You will recall the first guard who had been with Bala in the

23    compound at the Lapusnik, the third guard from Fatmir Limaj's military

24    escort.  Bala was armed with an AK-47 assault rifle, as was the third

25    soldier from Limaj's group.  The other guard from Lapusnik was armed with

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 1    a single-shot M-48 rifle.

 2            The group was ordered to sit in a straight line.  By now, these

 3    men knew that death was very close.  Bala announced that they would all be

 4    punished by death, and three soldiers then opened fire, the three soldiers

 5    then opened fire in a continuous volley.  Two prisoners, sensing what was

 6    to come, reacted very quickly and ran into the very thick forest that

 7    surrounded the group.  All other ten men fell to the ground in the hail of

 8    gunfire or perished.

 9            You will hear, as I've already told you, evidence from one of

10    these survivors, Rizah Rexhaj.  His father, as I've said to you, was among

11    the dead who perished at Berisa.  His body was never found, but he has

12    never been heard from since.

13            Of course, bearing in mind the posture of the Defence that these

14    events never took place, you should show that there is very strong

15    corroboration indeed of the survivors' account.  First, in 2001 and 2002,

16    the execution site was established and it soon gave up the mortal remains

17    of nine individuals.  DNA profiling, taking blood samples from family

18    members, and testing against bone samples has confirmed that these remains

19    belong to the individuals named in the third schedule, apart from Hetem

20    Rexhaj, Rizah Rexhaj's father, who has never been found.  This is in a

21    sense not surprising.  His son survived.  The killers knew this and they

22    may well have moved the body to another site, sensing that the surviving

23    son might welcome back and try to recover the body.

24            Second, upon examination of the remains by a forensic pathologist

25    and forensic anthropologist, it was confirmed, in six instances, that the

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 1    individuals perished as a result of fatal gunshot injury.

 2            In three instances the experts were either unable to establish or

 3    indeed exclude death by gunshot wounds.  As I've already stated, a number

 4    of bodies demonstrated injuries consistent with having been severely

 5    beaten.

 6            Third, cartridge cases and ammunition remnants were found at the

 7    execution site, and a ballistics expert has confirmed to varying degrees

 8    of certainty that the cartridges found had been fired from an AK-47

 9    assault weapon, the weapon used by Bala and the third guard.  The origin

10    of the ammunition was almost all from Albania itself.  Evidence will be

11    led in the case that the KLA secured much of its ammunition and logistics

12    from Albania.  Moreover, evidence will also be led from a Serb general

13    that the Serbs did not use Albanian ammunition for a number of very good

14    reasons, including the fact that they had plenty of their own ammunition.

15            The murdered individuals are set out in schedule 3 of the

16    indictment, and I will go through them -- I would have liked to have spent

17    more time on this, but we are running out of time and I would like to

18    finish this evening.  The first victim is man by the name of Emin Emini.

19    That is his photograph.  If we could move to the next one.  That is Ibush

20    Hamza.  That man is Hyzri Harjizi.

21            This man Shaban Hoti, Your Honours, I've already mentioned him to

22    you.  He was married with two daughters and sons.  As I've explained to

23    you, he was a linguist.  He spoke French and Russian.  He lost his job in

24    1992, during a Milosevic purge of Albanians from state positions.  During

25    1998, to make money for his family, he started using his language skills

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 1    by working with foreign journalists in Kosovo.  On the 26th of July, you

 2    will hear how he was accompanying three Russian journalists when they were

 3    stopped at Lapusnik, and we will bring one or two of those journalists who

 4    were present at the time who will say that they were stopped at Lapusnik.

 5    The journalists were detained for a short period of time and released.

 6    Shaban Hoti was kept by the KLA and subsequently murdered on Berisa.  His

 7    family searched for him high and low after his disappearance.  They even

 8    approached Fatmir Limaj about his disappearance.  But the fact is his body

 9    was recovered from the group executed on Berisa by Haradin Bala.

10            And if we could now move to the next gentleman, Hasan Hoxha.

11    Hasan Hoxha was married with six children.  He was an LDK supporter.  He

12    was kidnapped in July of 1998.  Again, his family searched for him.  He

13    was directed to Petrastica, a village under Fatmir Limaj's command.  While

14    acknowledging that Hasan Hoxha was being detained by the KLA for

15    questioning, the family, when they approached the headquarters in

16    Petrastica were turned away and told not to come back again.

17            The next individual is a man by the name of Safet Hysenaj.  The

18    next is a man by the name of Bashkim Rashiti.  He was married with three

19    boys and one girl.  His wife believed that he was joining the KLA at

20    Krimeravac [phoen].  She even went there to try and find him and deliver

21    fresh clothes and see that he was all right.  He has never been seen again

22    and indeed died on the mountain at Berisa.

23            The next gentleman is Hetem Rexhaj.  That's Rizah Rexhaj's father.

24    The next individual is Lutfi Xhemshiti.  Lutfi Xhemshiti, when he was

25    murdered, had been married for 11 years.  He had four children; two boys

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 1    and two girls.  His wife spent months looking for him.  Again, directed to

 2    the same military headquarters at Krimeravac, like Bashkim Rashiti's wife.

 3    Again, no sign of the man.

 4            And I think lastly is Shyqyri Zymeri, the last victim.

 5            If I could now, Your Honours, move to the law and evidence in

 6    respect of the responsibility of the three accused.  I've mentioned some

 7    of the evidence already where it was appropriate and I would now like to

 8    develop that some more.

 9            As to the law relevant for Article 7(1) and ordering, planning,

10    instigating or aiding and abetting, you will find that referred to in

11    paragraphs 135 to 150 of the Prosecutor's pre-trial brief.  The three

12    accused again do not take issue with us on the law.  On the mode of

13    committing, I'll make some comments.  On the other modes, I won't.  It's

14    in the pre-trial brief, and there is no dispute between the parties on the

15    law in respect of those modes of liability.

16            In respect of the modes of committing, we rely both on

17    straightforward commission of the offence, where the Prosecution must

18    prove that the accused has performed all of the elements of the actus reus

19    of the crime and that the accused has acted with the required mens rea.

20    So we rely on the simple form of committing, if I can call it that,

21    physical, personal participation in the crime alleged, together with the

22    requisite criminal intent.  And of course, you can have several

23    perpetrators for the same crime where the conduct of all satisfies the

24    requirements of the offence.

25            The second mode of liability, as I've already stated, under the

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 1    term committing is participation by the three accused in a joint criminal

 2    enterprise.  I've touched on this already.  Three forms of joint criminal

 3    enterprise are alternatively pleaded in the indictment, all recognised by

 4    the jurisprudence of this institution, all legitimate vehicles to

 5    demonstrate the culpability of the three accused.

 6            The interpretation by the Appeals Chamber to include this form of

 7    liability recognises the original intention of the Security Council in

 8    establishing this court.  The jurisdictional reach of this court was not

 9    to be limited only to the physical perpetrators of crimes.  All who

10    participated in serious violations of international humanitarian law would

11    be brought to account.  The concept of joint criminal enterprise logically

12    recognises that in wartime, crimes of this nature, which you find in this

13    indictment, are committed by groups as opposed to individuals, and acting

14    in pursuance of a common design or purpose as opposed to an individual

15    plan or motive.

16            Respectfully, Your Honours, some fundamentals, if it may be of

17    assistance to you.  While it's possible for you to find that an accused

18    aided and abetted a joint criminal enterprise, it is largely the case that

19    an accused involved in a common purpose will be regarded as a

20    co-perpetrator, and I believe that the evidence in this case will show

21    that to be so.  These three individuals, if they are found responsible

22    under a joint criminal enterprise, will be found to be co-perpetrators.

23            There are three basic requirements common to all forms of joint

24    criminal enterprise:  A plurality of persons, one; secondly, the existence

25    of a common plan, which amounts to or involves the commission of a crime

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 1    provided for in the Statute; and lastly, participation of the accused in

 2    the execution of the common design or plan.

 3            Now, the first type of joint criminal enterprise, called basic

 4    JCE, basic joint criminal enterprise, or JCE 1.  Here, all the

 5    participants share a common intent, but all may be -- all may not be

 6    involved in the actual criminal act.  An example would be where three men

 7    enter into a plan to imprison, beat, torture, and kill prisoners in a

 8    makeshift prison camp.  While all must share the criminal intent of all of

 9    the crimes, they have different roles in the design.  One may be a guard.

10    One or two may be the torturers and the killers.  Another may be the camp

11    commander.  Another, the regional commander where the camp is located and

12    to whom the camp commander reports.  But each will be liable for the parts

13    that they play, each accountable for the contribution given.  The only

14    requirement is that they must intend the results of the plan.  That is,

15    the sum total of the crimes within the joint criminal enterprise.

16            The second form of joint criminal enterprise, or JCE 2, as it is

17    sometimes referred to, which is pleaded in the alternative in our

18    indictment to the first form, is actually specifically formulated for

19    crimes committed in camps during wartime.  It requires that each of the

20    accused have knowledge of a system of ill-treatment coupled with an intent

21    to further that common, concerted system of ill-treatment.

22            The 2001 Kvocka decision, a first-instance actually examined in

23    great detail the legal development of this concept and found the case-law

24    to demonstrate that where a detention facility was operated in such a

25    manner that the criminal intent of the operation was patently clear,

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 1    anyone who knowingly participated in any significant way in the operation

 2    of the facility or assisted or facilitated its activity incurred

 3    individual criminal responsibility for participation in the criminal

 4    enterprise, either as a co-perpetrator or as an aider and abettor,

 5    depending on the position that the individual occupied within the

 6    organisational hierarchy and the degree of that individual's

 7    participation.

 8            Now, paragraph 306 of that judgement, Your Honours, I think

 9    respectfully is helpful, and it gives a number of factors that can be used

10    to judge the level of or degree of participation of an accused in this

11    kind of joint criminal enterprise.  Firstly, the size of the criminal

12    enterprise; secondly, the functions performed by the accused, his

13    position, the amount of time spent participating after acquiring knowledge

14    of the criminality of the system, efforts made by the accused to prevent

15    or impede the efficient functioning of the system, the seriousness and

16    scope of the crimes committed and the efficiency, zealousness or

17    gratuitous cruelty exhibited in performing the actor's function, direct

18    evidence of shared intent or agreement with the criminal endeavour, such

19    as repeated, continuous, or extensive participation in the system, verbal

20    expressions or physical perpetration of a crime.

21            Lastly, the role that the accused played vis-a-vis the seriousness

22    and scope of the crimes committed.  Those are factors which may assist

23    you.  It is important to stress that the culpable participant does not

24    need to know of every crime committed within the system of ill-treatment.

25    Knowing that these crimes are being committed, knowingly participating in

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 1    that system in a way that substantially assists or facilitates the

 2    commission of a crime which allows the criminal enterprise to function

 3    effectively or efficiently is enough to establish criminal liability.

 4            Very briefly, Your Honours, the third alternative variant of the

 5    joint criminal enterprise.  This is the extended form of joint criminal

 6    enterprise, where the objects and purpose of the enterprise is essentially

 7    overshot by natural and foreseeable acts of one or more of the

 8    co-perpetrators.

 9            And I think it's best demonstrated by our indictment. Here, for

10    this form of joint criminal enterprise, the Prosecutor alleges that the

11    object and purpose was to imprison, abuse, and torture Serb and Albanian

12    prisoners, and that the murders alleged in counts 7 to 10, unless proven

13    to be specifically perpetrated by one of the three accused, one or more of

14    the three accused, that they were the natural and foreseeable consequences

15    of the execution of the other three objectives of the plan, of the

16    imprisonment, of the torture.  That the three accused were aware that such

17    crimes, murders were the possible outcome of the execution of the joint

18    criminal enterprise.  So if it were the case that you were to find that

19    there was a joint criminal enterprise but that the evidence led you to

20    find that murder, rather than being an object of the enterprise, was a

21    natural and foreseeable consequence of the nature of the enterprise, then

22    you could convict for this third form of joint criminal enterprise as

23    opposed to the alternative first form that is pleaded.

24            One last point on this form of joint criminal enterprise.  At

25    paragraphs 32 of the Musliu brief and I believe paragraph 39 of the Limaj

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 1    brief, they both do not accept that this extended form of joint criminal

 2    enterprise existed in customary international law in 1998.  And the two

 3    accused cite two paragraphs, 185 to 192, of the Tadic appeals judgement in

 4    support of their position.

 5            Now, the Prosecution's position is that, in fact, the Appeals

 6    Chamber in Tadic had specifically considered this form of joint criminal

 7    enterprise, at paragraph 220, and that they found that in fact it was part

 8    of customary international law in 1992.  I think our position is bolstered

 9    by the fact that Tadic himself was acquitted at trial of a number of

10    murders at first instance.  He was subsequently convicted on appeal under

11    this extended form of joint criminal enterprise.  So based on appellate

12    jurisprudence, there cannot be any suggestion that the Appeals Chamber

13    considered that this form of joint criminal enterprise, this extended

14    form, did not exist in 1998, as it had been specifically applied to crimes

15    committed in 1992.  Moreover, the Tadic appeals decision has recently been

16    confirmed by the Appeals Chamber in Ojdanic, in which the Appeals Chamber

17    was unanimous again in holding that this form of joint criminal enterprise

18    was established in customary international law in 1992.

19            Very briefly, the law relevant to Article 7(3) of the Statute.

20    Only Fatmir Limaj and Isak Musliu are charged.  Article 7(3) does apply to

21    an internal armed conflict, such as the conflict which existed here.  The

22    law is set out in paragraphs 151 to 157 of the brief, of our brief.  Only

23    one issue is raised by the accused, and that is, I think, a fact which is

24    evidential rather than legal, but I will deal with it very briefly here.

25    Both Limaj and Musliu refer to a regrettable omission in the Prosecution

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 1    brief, citing to the Appeals Chamber decision in Hadzihasanovic.  That

 2    authority states that an accused may not be charged under Article 7(3) of

 3    the Statute for previous crimes committed by soldiers who subsequently

 4    fell under their command.  So, in other words, where a commander inherits

 5    a soldier from another unit who has committed a crime in another unit, he

 6    can't be held responsible for those -- the commander cannot be held

 7    responsible for the crimes inherited with the soldier.

 8            On reading our indictment, honour, I think you'll find it it's

 9    clear that there was no need for the Prosecution to refer to such an

10    authority.  We do not allege that Limaj and Musliu assumed command of

11    subordinates who had previously committed crimes.  We say that they were

12    in command of individuals who were committing crimes at the time.  So that

13    Limaj, Musliu, they were in command of soldiers who committing crimes at

14    the time, specifically, Haradin Bala, one of the accused here.

15            I've touched on some of the evidence linking the three accused to

16    the criminal events charged in the indictment.  I'll briefly expand on it

17    to give you some further insight.

18            It's not disputed, Your Honours, by the Defence that Fatmir Limaj

19    returned from Switzerland to Kosovo in March of 1998.  Fatmir Limaj

20    confirms in an interview that while in Switzerland, he was tasked with

21    certain business by the General Staff of the KLA.  Further, it's not

22    disputed by the Defence that he went immediately to a place called Klecka.

23    You can see Klecka on this map.  It's not marked, but I've pointed it out

24    to you a number of times before.

25            The Prosecutor will show that from here, he organised a regional

Page 336

 1    headquarters of the KLA for the area south of the Pristina-Peja road.

 2    That area of command included many of the places where critical events

 3    referred to in the indictment took place.  It was also around this time

 4    that he came to be known by the pseudonym of Celiku, or steel, the nom de

 5    guerre that I've already mentioned to you.  KLA soldiers and commanders

 6    routinely adopted a nom de guerre as a personal security measure to

 7    protect their families from reprisals by Serb security forces as well as

 8    to generate legend about their exploits.

 9            In terms of Fatmir Limaj's command, I've already stated that the

10    villages surrounding Klecka were established as what you will hear

11    referred to as points, which were effectively KLA military concentrations.

12    Each point consisted of a unit of KLA soldiers under a local KLA commander

13    who was, in turn, under Fatmir Limaj's command.  For example, the unit

14    here at Lapusnik, as I've already said to you, was known as Celiku 3.

15    Points were organised in a number of villages, including Kroimire, here,

16    Luznica, Kisna Reka, here, Fustica, Trpeza, Javor which is not marked

17    on -- oh, yes, Javor is marked on the map, Crnoljevo where you will recall

18    a significant number of the victims were kidnapped, Zborce, and Rasinovac.

19    These villages were under Fatmir Limaj's command.  You will hear evidence

20    that Fatmir Limaj regularly met with his point commanders in Klecka.  So

21    the commanders of these areas of KLA military concentration.  They would

22    report on events in their area of operations and he would issue orders.

23    Fatmir Limaj was recognised as the commander by his subordinates.  You

24    will hear evidence from a number of sources to this effect.  And his

25    orders, Your Honours, were followed.

Page 337

 1            Limaj communicated with his subordinates by messenger or courier.

 2    This is a fact confirmed and admitted to by Haradin Bala in his pre-trial

 3    brief at paragraph 13, that the KLA used couriers to communicate between

 4    units.

 5            As time went on, increasingly radio transmitters were used by the

 6    KLA to communicate between units.  The position of Fatmir Limaj in his

 7    pre-trial brief is that the Prosecution grossly exaggerates the extent of

 8    the organisation, of the military organisation of the KLA during the

 9    relevant period.

10            First, Your Honours, in order for liability to attach, as I've

11    already stated - and it applies as much to this principle as it does to

12    armed conflict - it's not necessary for the Prosecution to prove a level

13    sophistication and organisation within the KLA at the relevant time which

14    equates to a modern sophisticated army.  It's fair to say that between

15    April and July of 1998, the KLA had a rudimentary military structure which

16    functioned.  Secondly, in this case, the three accused were either

17    constantly or, in fact, to be fair, in Limaj's case, regularly at the

18    scene of the ongoing crimes.

19            Fatmir Limaj paints a picture of his command authority in his

20    pre-trial brief which, frankly, lacks credibility.  He states that between

21    March and July of 1998, he was responsible for organising men but he had

22    no power over them; that during the period of the indictment, he was

23    training members of the KLA, attacking Serb forces, defending Kosovar

24    Albanian villages, but he had no de jure or de facto authority over

25    anyone.  He could encourage members of the KLA and make organisational

Page 338

 1    suggestions, just like a military commander, Your Honours, but he says

 2    that he had no authority over any soldier until immediately after the end

 3    of the time period of the indictment, in August of 1998.  At this stage,

 4    he's suddenly clothed with military authority.  This is, in fact, when

 5    forces, existing forces under his command, were re-designated as the 121st

 6    Brigade of the KLA, so broadly the same soldiers, the same subordinates,

 7    including Isak Musliu, who actually became the deputy commander of the

 8    121st Brigade, under Limaj, in August of 1998.

 9            The fact is, Your Honours, respectfully, you must look to the

10    substance of matters rather than the form.  Whilst there may have been

11    some structural changes, simply because an organisation, a military

12    organisation, changes its name from Celiku's Units to the 121st Brigade

13    does not suddenly overnight change the existing legal and factual

14    responsibilities and relationships between a commander and his

15    subordinates and vice versa.  Common sense dictates this.

16            The evidence will show in this case that Fatmir Limaj did have the

17    necessary de facto authority at least over members of the KLA in Lapusnik

18    and other areas at the relevant time.  Members of the KLA will state that

19    Fatmir Limaj had authority and that there was a basic organisational

20    structure.  Surviving victims will say that that was their impression of

21    matters in Lapusnik camp.  Serb Security Service members will say, and

22    independent members of the international community will say; most of all,

23    and I will remind you what Fatmir said on the 14th of June of 1998, and

24    I've already shown you.  He didn't say it on the 14th of June - I'm

25    sorry - but he was referring to the period of June of 1998.  He was

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 1    referring to the organisational structure of the KLA in June.  If we could

 2    play that video again.

 3                          [Videotape played]

 4            MR. CAYLEY:  The KLA point, or stronghold, at Lapusnik, where the

 5    detention facility was located, was established following fighting with

 6    Serb security forces on the 9th of May of 1998.  Fatmir Limaj designated

 7    this point as Celiku 3 and he placed Isak Musliu in charge.  Naturally,

 8    this is disputed by the Defence.  However, Mr. Musliu acknowledges in his

 9    pre-trial brief that he was the coordinator or organiser in Lapusnik but

10    not the local commander.  Mr. Bala states in his pre-trial brief that his

11    understanding was that Mr. Musliu was the unit leader in Lapusnik from

12    shortly after 8th May, 1998.  Indeed, in Mr. Musliu's application form for

13    the Kosovo Police Service, he states that he was employed by the KLA from

14    1996 and that he was in the Celiku Unit and also the 121st Brigade and

15    that Fatmir Limaj was his commanding officer.  And if we could show that

16    document.  You can see it here, an extract from Mr. Musliu's police

17    application, where he states his employment from November 1996, Kosovo

18    Liberation Army.  First of all, Celiku Unit, becoming the 121st Brigade,

19    based in Klecka; subsequently, commander of military police in the

20    Nerodimlje operational zone; subsequently, coordinator for the formation

21    of Kosovo police.  Commander Fatmir Limaj.

22            There is no qualification in that document by Mr. Musliu that

23    between May and July of 1998, that somehow he and Mr. Limaj were

24    colleagues of equal stature who coordinated until, suddenly, in August of

25    1998, he and Mr. Limaj were transformed overnight into the commander and

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 1    deputy commander of the 121st Brigade.

 2            Mr. Musliu acknowledged when he was arrested that his nickname was

 3    in fact Qerqiz, and that nickname will come up a lot in this trial.  As

 4    the existence of the camp itself in Lapusnik, Mr. Musliu admits in his

 5    pre-trial brief that he was present in Lapusnik, based in Lapusnik, from

 6    May to July of 1998.  As I've already stated, Mr. Limaj admits in his

 7    pre-trial brief that between May and July of 1998, he visited Lapusnik,

 8    the village where the KLA detention facility which is the subject of this

 9    indictment was located, approximately 20 times.  Mr. Musliu confirms in

10    his pre-trial brief that indeed Mr. Limaj visited Lapusnik about 20 times

11    in this period.  So he corroborates his commander on this point.

12            But both Limaj and Musliu state that there was no camp in

13    Lapusnik, no prisoners, no beatings, no torture, and no dead attributable

14    to them.  Indeed, you will see here, on the 27th of February of 2004, when

15    the three accused were pleading to the second amended indictment.  And if

16    we could play this short video clip.  Judge Orie is reading the charges.

17                          [Videotape played]

18            "JUDGE ORIE:  Count 5, which reads:  'Inhumane acts, a crime

19    against humanity, punishable under Article 5(1), 7(1), and 7(3) of the

20    Statute of the Tribunal.' How do you plead to count 5?

21            THE ACCUSED LIMAJ: [Interpretation] We've already declared our

22    plea even earlier, and even now we do not accept that.  Let's say me

23    personally, I do not accept that such a camp has existed, and as a

24    result --

25            JUDGE ORIE:  Mr. Limaj, let me stop you."

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 1            MR. CAYLEY:  So Mr. Limaj has made it very clear that all of the

 2    events about which I am speaking to you today are complete fantasy.

 3            Let me say this, Your Honours, on behalf of the victims of the

 4    Lapusnik camp in respect of what Mr. Limaj stated at that hearing and what

 5    has been made clear by the Defence.

 6            The evidence in this case will do much more than establish that

 7    there was a camp at Lapusnik.  It will also establish that Fatmir Limaj is

 8    responsible for the horrors that took place there.  As I have said before,

 9    I would ask you to have this defence at the forefront of your mind

10    throughout this trial, throughout the evidence.  When you hear the

11    Prosecutor's examination of a witness, when you hear the cross-examination

12    by the Defence, think of this defence:  no camp, no prisoners, no victims,

13    no dead.  Of course the Prosecutor's position is that this is wholly

14    untrue, but the very nature of their defence and their admission of their

15    presence in Lapusnik frankly leaves for no other defence.  I leave it to

16    the evidence to expose that to you.

17            What is a fact is that from early January of 1998, a steady stream

18    of Serbs and Albanians started to disappear across Kosovo.  Many of them

19    were taken by certain elements within the KLA.  Lapusnik detention

20    facility was a holding place for such people.  Men were arrested and taken

21    to this place over a three-month period.  The kidnapping, the

22    transportation to this central camp was coordinated and it went on for a

23    long time it.  Any civilised human being with a thread of moral conscience

24    who entered that dreadful place in the summer of 1998 knew that the

25    operation of the camp was patently illegal: men shackled to the floor,

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 1    beaten, injured for sport, hungry, thirsty in the summer heat, stripped of

 2    all faith and feeling.  Fatmir Limaj knew what was being done to the

 3    prisoners by his men.  Of course he did.  He was among the prisoners on

 4    his 20 visits to Lapusnik.  He saw with his own eyes what I've tried to

 5    describe for you.  He commanded those who brought the victims to Lapusnik.

 6    He commanded those who put the key in the lock.  He commanded those who

 7    engaged in gratuitous and brutal violence.  He commanded those who did the

 8    killing.  He knew that this was a merciless and violent regime, and you

 9    will hear evidence that it was he who had the authority to release

10    prisoners from Lapusnik, the power to decide on a man's fate, in many

11    instances in this case, the power of life or death.

12            Fatmir Limaj personally swore a number of survivors upon their

13    release to silence on pain of death, that everything they'd experienced,

14    everything they had suffered, would never be revealed by them.  Why?  To

15    cover his guilt for these crimes.  Fatmir Limaj, Commander Celiku, knew

16    then and he knows now as he sits here before you what took place at

17    Lapusnik during those three months because he willed it to take place.  He

18    caused it and he's legally responsible for it.

19            Later in 1998, Fatmir Limaj admitted to members of the

20    international community, when challenged, that the KLA was detaining

21    civilians.  In the particular instance, two Serb journalists detained by

22    the KLA for breaching KLA regulations.  These two men had been sentenced

23    two prison terms without ever being present at their own trials.  They had

24    no access to lawyers, visits from the international community were

25    forbidden, their location, like those at the Lapusnik camp, was a secret.

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 1            The execution of the final group of ten prisoners on Berisa at the

 2    end of July 1998 was a crime in which Fatmir Limaj was not only aware of

 3    but in which I have stated to you the evidence will show he directly

 4    participated.  He met the detainees and Haradin Bala as they walked to

 5    execution or release.  He spoke with Bala.  He issued orders.  Bala

 6    released one group, the other group he marched to a clearing and with one

 7    of Limaj's soldiers and another guard, executed ten men by firing-squad,

 8    stating to them that they had been condemned to death.

 9            The KLA assured the international community, time and time again,

10    of their commitment to the Geneva Conventions, and it's fair to say that

11    many honourable combatants within the KLA tried hard in the face of

12    extreme provocation to comply with international humanitarian law.  But

13    what happened at Lapusnik was a flagrant disregard of even the lowest

14    standards of humanity.  Fatmir Limaj told members of the international

15    community that he complied with international humanitarian law, that he

16    disciplined soldiers under his command, and you'll hear of specific

17    examples of Limaj punishing soldiers, but you will not hear of any of the

18    crimes that were committed in Lapusnik being investigated or punished by

19    Limaj or anyone else.

20            If I could just show one video clip about Fatmir Limaj's views on

21    discipline.

22                          [Videotape played]

23            MR. CAYLEY:  So, Your Honours, Mr. Limaj was a fanatic for order

24    and discipline.  But you will not find that any of the soldiers who

25    committed crimes at Lapusnik were disciplined, none.  Indeed, you will

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 1    find that Isak Musliu was promoted after the events in Lapusnik, first to

 2    Limaj's deputy within the 121st Brigade, and subsequently to commander of

 3    the military police in another operational zone of the KLA.  So he was

 4    rewarded for the way that he ran Lapusnik camp, rather than punished.  And

 5    with the articulated defence of the accused, no camp, no imprisonment, no

 6    torture, no dead, we do not expect any evidence whatsoever to be offered

 7    before this court of the investigation or punishment of crimes in

 8    Lapusnik.

 9            Isak Musliu, Qerqiz, commanded the soldiers at the Lapusnik point

10    from May 1998 until July 1998.  He reported directly to Fatmir Limaj.  He

11    controlled access in and out of the prison camp.  He gave orders inside

12    the camp to the soldiers.  He gave orders to blindfold, to move, to beat

13    the prisoners.  As he admits himself, he was based at Lapusnik.  The

14    evidence will show that he was in the camp on a regular basis.  He was an

15    efficient and zealous commander, and there is no doubt that this man

16    enjoyed the infliction of gratuitous and brutal violence.  As I've stated

17    already, he is a keen martial arts practitioner, and he used both these

18    skills and various other instruments of torture to attack and terrify the

19    prisoners.  Prisoners were made to feel absolutely worthless, witnessing

20    senseless butchery on a daily basis, believing their lives were dependent

21    on an individual like Isak Musliu.

22            A number of prisoners, Your Honours, were so badly beaten that

23    their supreme desire was a speedy and painless death.  I would remind Your

24    Honours of the forensic evidence in this case, which shows a community of

25    prisoners with absolutely appalling injuries.

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 1            Isak Musliu personally participated in the murder of a number of

 2    the inmates.  He ran the camp on behalf of Fatmir Limaj.  And the criminal

 3    regime for which Isak Musliu was responsible for supervising is Fatmir

 4    Limaj's regime also.  Musliu commanded the soldiers who operated the camp.

 5    He was in the camp from May to July of 1998.  He did nothing to prevent

 6    the criminality in the camp.  On the contrary; by virtue of his own

 7    murderous and brutal example, he encouraged atrocities and can be credited

 8    with repeated, continuous, extensive, and significant participation in

 9    this terrible criminal endeavour.

10            Bearing in mind the nature of his defence, which is a mirror image

11    of his co-accused, Fatmir Limaj, no camp, no prisoners, no torture, no

12    dead, it hardly needs to be stated that he neither prevented nor punished

13    any of his subordinates for the events which took place in Lapusnik.

14            Haradin Bala, known as Shala, was a guard at Lapusnik.  Musliu was

15    his commander in the camp.  It seems that there were two men known as

16    Shala in Lapusnik.  You can see the photograph of the other one here.

17    This man, his real name is Ruzhdi Karpuzi and you can see he is physically

18    distinct from Haradin Bala.  This man had duties outside the detention

19    facility.  So when prisoners are referring to Shala being a guard in the

20    camp, they are referring to Haradin Bala and not this man, Ruzhdi Karpuzi.

21            In his pre-trial brief Haradin Bala confirms that Isak Musliu was

22    the unit leader of Celiku 3, the KLA force in Lapusnik of which he,

23    Haradin Bala, was a part.  While working as a guard at Lapusnik camp, Bala

24    work a black uniform.  He had the classic role of a camp guard.  He

25    guarded the entrance to the camp, he locked and unlocked the doors of the

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 1    areas of detention.  On their arrival, he would take the prisoners to

 2    their cells, he would shackle the prisoners down.  Bala beat the prisoners

 3    and often provided the security for others while they engaged in beatings.

 4    It was often the case that prisoners were literally tied down like animals

 5    and then blindfolded before being beaten.  Bala was the one who tied and

 6    blindfolded them, preparing them for the violence to come.  In this

 7    environment, he threatened the prisoners, adding to and enhancing the fear

 8    and robbing individuals of any sense of hope.

 9            The evidence that I've already referred to will show his personal

10    involvement in a considerable number of murders in this case.

11            I will, for completeness, mention it again, but I would remind you

12    that on the 26th of July of 1998, it was Haradin Bala who took over 20

13    prisoners into the mountains above Lapusnik, to Berisa, where, on Limaj's

14    orders, he released a number and then executed ten other prisoners.  While

15    Limaj bears responsibility for this act, Bala's culpability is

16    straightforward on the evidence that I've outlined for you.

17            I have already outlined the nature of his defence.  It's that of a

18    partial alibi and also now it seems within the latest 92 bis filing of the

19    Defence, he also completely denies the existence of the camp.

20            I'm almost completed, Your Honour.  I suspect I'll be another

21    three or four minutes.  I've spent some considerable time outlining the

22    evidence and the law in this case.  That is required of me under the

23    Rules.  It is fair to say that almost all of the cases that reach the

24    Chambers of this Tribunal concern the deeds and acts of men that we would

25    rather not believe.  That is the nature of our business.  The single

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 1    factor which distinguishes cases within this Tribunal is proportion:  How

 2    many dead, how much torture, how much suffering, how much killing.  But

 3    all cases heard within this Tribunal make daily domestic crime pale into

 4    insignificance.  Here we have over 20 dead and tens of injured and many

 5    ruined lives and families.  By any civilised standards, a catastrophe.  We

 6    will never address every crime committed by every party in this war.  That

 7    was never envisaged by the Security Council when this Tribunal was

 8    established.  But never let it be said that certain groups were placed

 9    above the law by the Office of the Prosecutor.

10            The Defence of Limaj and Musliu berate the Prosecutor in their

11    pre-trial briefs for bringing this indictment at all, that by doing so we

12    revise history, by suggesting that the most serious and widespread crimes

13    in 1998 were committed by the Kosovo Liberation Army.  First, Your

14    Honours, let me make it abundantly clear that that is not what we saw at

15    all.  As I have already set out for you, the Prosecutor does not dispute

16    that widespread human rights violations were committed during this period

17    by Serb security forces.  These violations culminated in the appalling

18    events that have unfolded from January to June of 1999 and for which

19    Slobodan Milosevic is currently standing trial, and for which Colonel

20    General Pavkovic, Colonel General Lazarevic, Colonel General Djordjevic,

21    Colonel General Lukic, Milan Milutinovic, Nikola Sainovic, Colonel General

22    Drago Ojdanic and Vlako [phoen] Stojakovic stand accused.

23            As to events in 1998, witnesses may give evidence before this

24    court of Serb crimes in this period but that justifies absolutely nothing

25    at Lapusnik.  The unlawful imprisonment, torture, and murder of all of

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 1    these innocent people at Lapusnik was not impelled by the needs or

 2    necessities of warfare, and the long shadow of Milosevic's crimes in

 3    Kosovo do not purge these three accused of their responsibility for what

 4    happened at Lapusnik.  That is basic morality and that is the law.

 5            The foundations of this institution rest upon traditional

 6    principles of morality, justice, and the law, accumulated by civilisation

 7    over the course of the centuries.  It recognises -- those principles

 8    recognise and reaffirm our faith in the dignity and worth of each of us.

 9    The acceptance that warfare is a pitiful business, but the aspiration,

10    backed by legal compulsion, that those who are outside the combat - be

11    they soldiers, be they civilians - should be treated with compassion and

12    mercy.  And the law recognises that these fundamental safeguards are

13    universal, that they be applied to all victims of war, regardless of

14    gender, ethnicity, or colour, regardless of who the perpetrators are,

15    equal and exact justice to all men.  I speak of the victims, but these

16    words of Jefferson should be a source of great hope to the accused too.

17    They can expect this trial to be fair.  They are guaranteed all the rights

18    and dignities which flow from the Statute of this Tribunal.  They can look

19    to the Bench of this Honourable Court as guardians of the integrity of

20    these proceedings.  They are very well defended, as they should be.

21            As the Defence state in their pre-trial briefs, the burden, the

22    legal burden, rests upon us, the Prosecution, to prove these appalling

23    events and the accuseds' involvement in them.  You must be satisfied of

24    the guilt of the accused in respect of each charge beyond a reasonable

25    doubt.  That is Rule 87 and that is the golden thread, a safeguard which

Page 349

 1    all three accused must enjoy.  I will not expand on what it means.  In my

 2    home jurisdiction, such explanation often causes problems for judges and

 3    counsel alike.  As it is, you are professional Judges.  I do not need to

 4    explain to you what it means.  You know much better than I what it means.

 5    You are finders of fact and law.  It only needs for me to say that the

 6    Prosecution will discharge the legal burden in this case.

 7            Kosovo today is a partitioned society.  Long years of repression

 8    and division, and this most recent war, Your Honours, has left very deep

 9    scars indeed.  People are grieving, angry, and bitter on both sides of the

10    ethnic divide.  But in this indictment you will find Serb victims and you

11    will find Albanian victims.  The sons and fathers of both communities, a

12    common sorrow, a shared anguish which could be a bridge of reconciliation

13    between the two communities.  After all, one of the principal purposes for

14    which this institution was established by its founding fathers was to try

15    and create reconciliation within the region.  So a belief once again

16    amongst these people that their neighbours are indeed like them.

17            What men do in warfare for good or ill lasts a relatively brief

18    period, but it is those acts which affect the whole character of the peace

19    which lasts a much longer period.  Unless the criminal acts of warfare are

20    honestly and openly addressed, however difficult that may be, they leave a

21    bitter and violent legacy.  The capacity and willingness of a people to

22    confront the terrible crimes of a very few amongst them is a sure sign of

23    national maturity and progress.

24            Sylejman Selimi, a Kosovar Albanian and highly respected military

25    commander in Kosovo today said this about war crimes generally:  "Every

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 1    democratic country should come to terms with people who committed crimes

 2    during war, even countries that have perfected the system, the democratic

 3    systems still have problems, let alone us starting out without any

 4    experience.  And of course there is no one above the law.  People may do

 5    things in the euphoria of the moment and then afterwards they have to take

 6    responsibility."

 7            Your Honours, I'm complete.  I must now let the evidence speak.

 8    In closing, I would only say to you it is my firm and honest belief that

 9    if the evidence in this case is freely and fairly heard it will prove

10    these men for what they are, murderers and torturers.  That is what the

11    Prosecutor asserts.  That is what the evidence will show, and that, most

12    respectfully, Your Honours, is what the law will require you to find in

13    this case.

14            Thank you.

15            JUDGE PARKER:  Thank you, Mr. Cayley, for that careful opening.

16            As counsel will have noted, because of the need for this trial to

17    be translated into a fourth language, and therefore the need for

18    additional space for interpreters, we have very limited facilities in

19    which to conduct this trial and must share this courtroom with another

20    trial that is being conducted.  The inconvenience of that to all is

21    regretted, but it is a reality we all have to deal with.  In immediate

22    effect is that we will continue tomorrow morning at 9.00, to finish by

23    1.45, because the courtroom is needed in the afternoon for other purposes.

24    But at present we expect for the remainder of the week to continue in the

25    afternoon session, that is, Wednesday, Thursday, Friday, 2.15 for 7.00 in

Page 351

 1    the evening.

 2            So we will now adjourn until tomorrow morning at 9.00.

 3                          --- Whereupon the hearing adjourned at 6.45 p.m.,

 4                          to be reconvened on Tuesday, the 16th day of

 5                          November, 2004, at 9.00 a.m.