1 Thursday, 10 March 2005
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 12.08 p.m.
5 JUDGE ROBINSON: Mr. Nice.
6 MR. NICE: Your Honour, I've asked for the witness to be kept out
7 briefly. I don't need, at the moment, private session. I have
8 distributed in advance a witness statement of an investigator made
9 yesterday. The topic is again both the protection afforded for someone
10 identified in the report of the witness to which he's already referred.
11 JUDGE ROBINSON: Mr. Milosevic.
12 THE ACCUSED: [Interpretation] I'm not receiving any
13 interpretation, nothing. I'm on the right channel, but there's no
14 interpretation coming through.
15 JUDGE ROBINSON: Could that be investigated.
16 THE ACCUSED: [Interpretation] Could you check it out, now, please?
17 Could somebody say something so I can hear whether the channel is working.
18 JUDGE ROBINSON: Is it working?
19 THE ACCUSED: [Interpretation] Nothing coming through, nothing.
20 I can hear the interpretation now. I'm getting it. Yes, thank
22 JUDGE ROBINSON: Okay. Let's proceed.
23 MR. NICE: I will repeat what I started with, Your Honour. I've
24 asked for the witness to be kept out briefly. I don't need, at the
25 moment, private session. I have distributed in advance a witness
1 statement of an investigator made yesterday. The topic is again both the
2 protection afforded for someone identified in the witness -- in the report
3 of the witness to which he's already referred and indeed the admissibility
4 of material concerning that person. The reference is, I think, to page
5 127 of the report, and I observe something that I omitted to observe
6 yesterday: That I think the report is itself entirely public so the
7 written version of the material has already been publicly available.
8 The inquiries made yesterday following the granting of protective
9 measures were made by telephone, it being clarified with the Court that
10 there was no restraint on our attempting to contact the people identified.
11 The investigator concerned pursued the identified two people at random in
12 the sense there was no choice between one or the other of the two people
13 referred to on page 127 for whom protective measures were sought. We were
14 able to get through to one but not to the other.
15 The person to whom we were able -- with whom we were able to make
16 contact explained to the investigator that he had been in Belgrade at the
17 time this interview took place, that there were many interviews that he
18 perceived as being conducted for propaganda purposes. He does remember
19 one in the English language. He explained how at the time of the
20 interview, as well as the presence of the other of the two men referred to
21 yesterday for protective measures purposes there were also plain-clothed
22 Serbian Interior Ministry police officers.
23 I turn over the page of the two-page statement. He went on
24 further to explain that he would have responded to all questions in the
25 manner that would have been expected of him by the Belgrade authorities
1 who approved the interview in the first place and would in no way have
2 criticised the Serbian government.
3 Without recalling this witness as an interviewer specifically, the
4 person we contacted yesterday said it is unlikely that he meant what was
5 said within the interview because he was always mindful of family concerns
6 he had and that he amplifies in the statement, observing also that because
7 he was in Belgrade where negative statements towards the government or in
8 support of NATO would have led to his suffering serious harm operated on
9 his mind.
10 Asked if he'd been approached to testify in this case, he said
11 that he had not. And then on the question of disclosure by which is meant
12 publicity given to evidence about his interview, he said this, on the
13 basis that it is indeed he who was speaking to Mr. Lituchy: While he had
14 no objections, he would prefer that the material was disclosed in closed
15 session as it is unlikely that he would now stand by the statements made
16 in the interview.
17 Dealing with protective measures and admissibility in that order,
18 what I suggested yesterday is entirely reinforced by the inquiries that
19 we've made. There are great dangers in having material of this kind used
20 in closed-session testimony, for if it's in error, there is absolutely no
21 stimulus to the person concerned identifying the error as he might have
22 done were he to learn about it and correcting it, and in the absence of
23 our being able to contact the person and establish the error, the position
24 would remain completely uncorrected.
25 Dealing with admissibility, on the basis of this material
1 available to us and bearing in mind the distinction between material
2 contained in this type of interview and the much more rudimentary type of
3 material contained in other interviews with refugees and the like, if this
4 evidence goes in, the following extraordinary position will be achieved in
5 what is still --
6 JUDGE ROBINSON: Mr. Nice, what is your -- what is your
7 application? We made a decision yesterday.
8 MR. NICE: Your Honour, I'm asking you please to reconsider it on
9 two grounds, in light of the material available. First on the question of
10 protective measures and second on the basis of admissibility. And I'm
11 sorry I was going too quickly. I'm always anxious about the time
12 administrative matters take.
13 If this material goes in as on page 127 and subsequently, the
14 following position in an essentially adversarial proceeding will have been
15 achieved: One, the evidence in chief, as it were, will come secondhand in
16 the form of answers given to this interview and I will not be able to
17 cross-examine the witness or the person; two, the only way that I will be
18 able to deal with it and correct it will be to call the person upon whom
19 the accused relies and then the accused will be able to cross-examine him.
20 So my invitation to the Chamber -- I'm sorry I didn't make this
21 absolutely plain --
22 JUDGE ROBINSON: That's also a consequence of the adversarial
24 MR. NICE: Well, Your Honour, it's a consequence of the
25 adversarial system, but throughout the discussions of this type of
1 material, Mr. Kay, for example, has been advancing that such material
2 should be excluded where it's important and where there is no opportunity
3 to cross-examine the maker of the statement. Now, if this is important
4 material going to the defendant's -- to the accused's defence, on that
5 principle the Prosecution should be in a position to cross-examine the
6 maker of the statement. I won't be able to do so.
7 JUDGE ROBINSON: That's Mr. Kay's position. The decision of the
8 Chamber has not been specifically informed by that position.
9 MR. NICE: Your Honour, all I can do in these circumstances is
10 that which in our submission the accused himself should have done, which
11 is to contact, where possible, people of this kind upon whom he relies.
12 He hasn't; we have. The material now provided to you shows, one, that
13 there is no ground, in our respectful submission, to justify protective
14 measures; the reverse. We can look at the details of that, if necessary,
15 in a minute but it is covered by Rule 75 and 79. And two, that in light
16 of what we now know - and this wasn't available to the Chamber yesterday,
17 of course - the question of admissibility of this part of the record in
18 any event might be reconsidered.
19 JUDGE ROBINSON: Thank you.
20 [Trial Chamber confers]
21 JUDGE ROBINSON: The Chamber will not reconsider its decision.
22 We'll proceed with the witness.
23 THE ACCUSED: [Interpretation] Mr. Robinson, may I be allowed to
24 say something with respect to what Mr. Nice said?
25 JUDGE ROBINSON: Not in relation to that. When your witness comes
1 in, then you can question the witness. We have lost enough time.
2 [The witness entered court]
3 WITNESS: BARRY LITUCHY [Resumed]
4 JUDGE ROBINSON: Mr. Milosevic, you are to --
5 THE WITNESS: Your Honour, may I address the Court
6 for a moment, please?
7 JUDGE ROBINSON: What do you wish to address the Court on?
8 THE WITNESS: Well, I wish to raise an issue about
9 something that happened yesterday that concerns me about my testimony that
10 may have compromised my testimony. I was not allowed to complete the
11 answers to several questions, particularly the last question that was
12 addressed to me about the findings of my -- of the interviews that we did,
13 and I'm worried that that may, in the end, compromise the testimony I've
14 -- I'm trying to bring here.
15 JUDGE ROBINSON: Yes, briefly.
16 THE WITNESS: Briefly, the first and most
17 important finding of our inquiry or our interviews of the Albanian
18 refugees was that they all agreed that crimes of genocide, based on the
19 definition of crimes of genocide in the United Nations Convention, were
20 committed against Albanians and that this was evidence of the very worst
21 types of criminal actions against the Albanian population committed in
22 Kosovo. And --
23 JUDGE ROBINSON: That's not going to be helpful to us, that
25 THE WITNESS: No?
1 JUDGE ROBINSON: No, not at all. I mean, that will be a matter
2 for us to find as a matter of law. So the fact that they agreed that
3 genocide was committed is neither here nor there.
4 THE WITNESS: There was one other -- just one
5 other thing that I wanted to say.
6 JUDGE ROBINSON: Yes.
7 THE WITNESS: And that was that the information in
8 the interviews did deal with events that occurred before 1999, including
9 the killing of Albanians by the KLA, such as one of the interviewees'
10 father, and I wanted to raise that point as well.
11 JUDGE BONOMY: I tried yesterday to explain to you, Mr. Lituchy,
12 that it's not you that brings evidence here, it's Mr. Milosevic that
13 brings evidence, and unfortunately perhaps from your perspective, you're a
14 tool in the presentation of a case. It's not for you to control what
15 actually happens here.
16 JUDGE ROBINSON: Yes, Mr. Milosevic, continue.
17 Examined by Mr. Milosevic: [Continued]
18 Q. [Interpretation] Mr. Lituchy, I'm going to ask you a question now
19 which we elaborated on yesterday but which I would like to ask you again
20 for an important reason. Yesterday, you said that nobody in the
21 government of the Republic of Serbia or Yugoslavia took part either in the
22 organisation of your talks and interviews nor neither did they attend any
23 of your interviews; is that correct?
24 A. Yes. Yes, that's correct.
25 Q. Thank you. Now, before we move on and play the tape, I'm going to
1 ask you a few questions about the first Albanian testifying on the tape,
2 person number 1 whom we're going to see in several of the excerpts.
3 Tell us, please, what did the KLA -- yes, what did the KLA do to
4 person number 1?
5 A. Well, the first thing that he mentioned was that he was hunted
6 like an animal. They -- they sought him out. The KLA was trying to hunt
7 him down, going from place to place with photographs of him in an effort
8 to execute him. We asked him -- we asked him how he escaped. He escaped
9 with his family with the help of a military escort. He -- he -- I asked
10 him if they were continuing to try to -- if there -- if there was a death
11 warrant out on him or if there was an attempt to kill him, and he replied
12 that, "If they find me, they will kill me."
13 Q. In the interview, did he mention that there were examples of them
14 having killed someone from his group, for instance, or some of his -- the
15 people that thought like him politically?
16 A. Yes. Well, that was consistent with all the interviews of the
17 Albanians, that they -- Albanian interviewee number 1 said that one of the
18 members of his political party had been captured. At that time, I guess,
19 he wasn't aware of whether he had been killed or not. I believe that
20 man's name was Cuka.
21 Q. And how did he know and how do you know now that the KLA -- UCK or
22 KLA, was still looking for him?
23 A. Well, he told me that -- that if they find him, they will kill
25 Q. Did you ask him how many Albanians were forced to leave Kosovo
1 under pressure from the KLA? Did he tell you anything about that? Did he
2 know anything about that?
3 A. He said -- he spoke specifically about his own political party.
4 He didn't -- I don't think -- I'm not sure if he -- I can't recall now
5 whether he said how many Albanians in total left because of the KLA, but
6 he spoke specifically about his own political party, and he -- he said
7 20.000 were forced to flee because of the KLA. From his party.
8 Q. And what did he say he knew about the KLA? What was it he knew
9 about them? Did you ask him about that, about the KLA? And what did he
10 tell you about the KLA?
11 A. Yes, yes. I asked him about the KLA, about its origins, about its
12 leadership, about its aims, and in reply to that, he -- he mentioned some
13 of the names of the leaders of the KLA such as Thaci and Demaci. He
14 mentioned that the KLA had been formed outside of Kosovo by -- by -- with
15 foreign aid and that it had -- its aim was a secessionist movement and to
16 use terrorism to achieve that end, and he -- I believe it was the first --
17 the first Albanian interviewee, but it may also have been the third who
18 said that they were funded by the intelligence services of the United
19 States and Germany. And of course we -- we believed what he had to say
20 because this was someone who was very knowledgeable about the situation in
21 Kosovo, as was all three of these gentlemen.
22 JUDGE KWON: Mr. Lituchy, the interview took place some six years
24 THE WITNESS: Yes.
25 JUDGE KWON: How are you able to remember all these in such
2 THE WITNESS: Your Honour, the interviews were edited -- I'm
3 sorry. They were video taped. They were not edited. They were not
4 censored, they were not cut. They were videotaped in their entirety and
5 our nonprofit organisation paid for the cameramen to do this, and we then
6 produced a transcript based on the translations that were available at
7 that time in early 2000, and we published the transcript of those
8 videotaped interviews.
9 JUDGE KWON: So you read the transcript recently.
10 THE WITNESS: Of course. I produced -- I -- I co-edited the --
11 the transcripts, yes.
12 JUDGE KWON: Thank you.
13 JUDGE BONOMY: Could I ask that we go into private session just
14 for a moment for one question.
15 [Private session]
1 [Open session]
2 MR. MILOSEVIC: [Interpretation]
3 Q. Mr. Lituchy, what was it that this man, interviewee number 1, told
4 you about the position of the Albanians and the rights of Albanians in
5 Kosovo and Metohija before the outbreak of the war in 1999? Or, rather,
6 not immediately before but the whole period up until the war in Kosovo and
7 Metohija in 1999.
8 A. I can't remember now exactly the question that I -- I posed to the
9 interviewee number 1, but I won't -- I won't go back and look at it. What
10 -- the answer -- I remember the answer, though, and the answer was -- oh,
11 I think the question that I posed was, Why did Albanians such as them want
12 to live in Yugoslavia? And the answer he gave was a twofold answer:
13 First that Yugoslavia was his country, his state, and he wanted to live in
14 a multinational society. He wanted to live in a society where the
15 democratic rights of all nations were protected, a multi-confessional
16 society. He didn't want to live in a uni -- an ethnically cleansed or
17 uni-national, pure -- pure Albanian society.
18 Secondly, he replied he didn't want to live under the KLA. In
19 fact, all three of the interviewees made this perfectly clear that not
20 only did they not want to live under the authority of the KLA, but they
21 could not live under the authority of the KLA, that the KLA was the worst
22 possible thing in the world for the Albanian people. That is, I think,
23 abundantly clear in every answer that they gave to every question.
24 Q. Mr. Lituchy, the Albanian living in Kosovo today, regardless of
25 what we specify as to what he -- the KLA is doing in Kosovo today, can he
1 be considered a free man, able to freely state what he wishes? Not freely
2 just like that, but without real danger to his life and his family's life?
3 MR. NICE: Is that a sort of question that this witness is able to
4 give -- if that's the sort of answer that the Chamber is happy to accept,
5 of course I shan't take the matter further but it seems to me wildly
6 general and it's about present-day circumstances. This witness is going a
7 great deal further than just narrating what is apparently going to be
8 revealed in the interviews. He's now giving the most general answers. If
9 that's what the Chamber is happy with, I shan't take any more of your time
10 but I would invite you to approach these questions with caution.
11 [Trial Chamber confers]
12 JUDGE ROBINSON: We disallow the question, Mr. Milosevic, and I
13 recollect that you were going to play a video. Why don't you proceed to
14 the video, because these matters, I think, are covered by the video.
15 THE ACCUSED: [Interpretation] Very well. Very well, Mr. Robinson.
16 Yes, may we have the tape played. But in order to identify -- or, rather,
17 we covered these questions in an open session. Now, on the video you can
18 see that all this is correct. But in order to protect the identity of the
19 witness we're going to have it shown in closed session, that is to say
20 that the identity is preserved.
21 JUDGE ROBINSON: Private session, rather. I understand there is a
22 technical problem.
23 [Trial Chamber confers]
24 JUDGE ROBINSON: Because the monitors can be seen from the public
25 gallery, we will have to draw the blinds.
1 THE REGISTRAR: Closed session?
2 JUDGE ROBINSON: Closed, yes.
3 [Closed session]
11 Pages 37245-37273 redacted. Closed session.
25 --- Whereupon the hearing adjourned at 1.43 p.m.,
1 to be reconvened on Monday, the 14th day of March,
2 2005, at 9.00 a.m.