090206ED

Page 638

1 Friday, 6 February 2009

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.12 a.m.

5 JUDGE PARKER: Good morning. I'm sorry there was a delayed

6 start. Apparently there was an equipment failure with the recording

7 equipment. We are now ready for the witness who is giving evidence,

8 please.

9 MR. STAMP: Your Honours, with your leave, if I may raise just

10 two matters very quickly, and I believe my friend Mr. Djurdjic has

11 another matter he'd like to raise before the Court.

12 Yesterday, Your Honours directed that we consult each other to

13 see if we could come to some agreements as to the order of witnesses next

14 week.

15 JUDGE PARKER: Yes.

16 MR. STAMP: We did, and I can confirm that we have agreed the

17 schedule in respect to next week, and that would be Liri Loshi followed

18 by Lizane Malaj. She had originally been scheduled to come at that point

19 and we had tried to put her for later, but we have now returned her to

20 her place as number 2 for next week, followed by John Sweeney. I think

21 that was the main concern of the Defence, that John Sweeney would not

22 come too early next week, and I think with that schedule he will come

23 much later in the week, and that would not be too inconvenient to the

24 Defence, and that will be followed by Krasniqi and Ramadani.

25 So that has been agreed upon, Your Honour.

Page 639

1 The second matter --

2 JUDGE PARKER: The Chamber would thank both counsel for that.

3 Hopefully with the revised schedule that has the concurrence of both

4 parties we'll be able to move with good speed. Thank you.

5 MR. STAMP: Indeed. The second matter I'd like to raise,

6 Your Honour, is the matter in respect to Liri Loshi. The Prosecution

7 would apply respectfully that his testimony begin on Monday, and for

8 these reasons. I think we would have a significant amount of time with

9 this witness today, and if his testimony commence on Monday, there will

10 certainly be a loss of time, but I don't believe it will be the entire

11 day, certainly not. So we will lose time.

12 Dr. Loshi arrived on Wednesday night. He arrived much later than

13 we expected, and he has had to settle in, firstly, which proved to

14 involve some amount of arrangements, and then he has to go through a huge

15 mass of material. He's a very meticulous person, a very meticulous

16 witness, and he not only has a lot of material from his testimony in the

17 Milosevic case but also in the mass case, which is really tremendous. He

18 has also brought some new material which was not available to him or to

19 the Prosecution on the last occasion when he came here, and I'll mention

20 a piece of that later.

21 We think, Your Honours, that he could be given an opportunity to

22 complete his preparations, and we also would like an opportunity to

23 discuss with him after he has finished with reading the material, what he

24 has brought, and to proof him in the normal way before he testifies, and

25 that, Your Honour, I am sure, and this is one of the real reasons why I

Page 640

1 would like him to start on Monday, will lead to a more effective and

2 orderly presentation of the evidence, more efficiency and less clutter.

3 And I think in the end it would speed -- speed up proceedings, and would

4 be -- and would enure to the benefit of these proceedings, so I'd

5 respectfully ask if his testimony could commence on Monday, even if in

6 the short-term today we might lose some time, there might be a saving.

7 We know, Your Honour, if I might move on to some of the material

8 he brought, that he has also brought a video, a new video in respect to a

9 grave-site. That is being reviewed, and we may - I think we will - apply

10 that it be received in evidence, although it was not on the list. We'll

11 apply that it be put on the list and received in evidence. I think that

12 matter can be litigated on Monday when it arises, but it is new material,

13 and I think if we begin on Monday, it would also give the Defence some

14 time to review it so that their position on it could be more considered

15 when they express a position on it when we deal with it.

16 So those are the considerations I'd like Your Honour to bear in

17 mind, and I respectfully ask that we proceed with him on Monday instead

18 of today. Thank you very much, Your Honours.

19 JUDGE PARKER: Is there any objection to that proposal,

20 Mr. Djurdjic?

21 MR. DJURDJIC: [Interpretation] Thank you, Your Honour. My

22 learned colleague Mr. Stamp has now conveyed our joint proposal to the

23 Trial Chamber, but as regards to the last section, the supplementary

24 evidence or exhibits that were submitted to us yesterday after 5 p.m., if

25 I'm not mistaken, but there will be some discussion about that later. I

Page 641

1 support the proposal made by the Prosecution for Mr. Liri Loshi to take

2 the stand on Monday because we would also like to make some checks in the

3 course of the next two days and to make some inquiries as to the origin

4 of the material and to obtain some information that would make it

5 possible for us to address the Trial Chamber before he takes the stand,

6 and if he were to take the stand today, we would be hampered. We could

7 not do that.

8 Now, I would like to raise another issue in this regard.

9 Your Honour, the Defence would like to express its great satisfaction

10 with the latitude it has been given in the cross-examination, and we will

11 do all we can to contribute to the expeditiousness of the trial. In the

12 cross-examination of Witness Mustafa Dragaj yesterday, I took some time

13 to verify his identity, his real last name. In the transcript that was

14 produced, the daily transcript that was produced in realtime as the trial

15 went on, I think that the discussion between Mr. Mustafa Dragaj and

16 myself is recorded properly, and when Ms. Kravetz announced the witness

17 and asked him his personal details, I think that details were recorded

18 properly in the transcript.

19 In light of my lack of experience before this Tribunal and the

20 problems that we had with the mistake that I made about the year when

21 Mr. Gjogaj's statement was made and when I wanted the transcript to be

22 corrected, then you instructed me that no corrections can be made but

23 that the intervention was recorded. I think that in the official

24 transcript, there are some corrections that are not the result of what

25 was actually going on at the trial yesterday, and I don't think that such

Page 642

1 things should occur. If in the daily transcript the lady was able to

2 record everything correctly, then I don't think that in the official

3 transcript that we receive there should be some amendments or changes.

4 Let me just remind you.

5 At page 602 of the official transcript, paragraph 16, it

6 says "witness Mustafa Dragaj." In the daily transcript at page 50,

7 line 18, it says "Mustafa Draga." At page 603 it reads "Mustafa Dragaj,"

8 and in line 3 of page 51 of the daily transcript, it says "Mustafa

9 Draga." And now it reads "Mr. Dragaj," whereas in the daily transcript

10 at page 58, line 19, it now read "Mr. Draga." At page 612, line 17, it

11 says Mr. Dragaj, that's the official transcript that we received, and in

12 the daily transcript at page 60, line 20 it says "Mr. Draga."

13 Let me stress once again that I asked questions specifically to

14 ascertain the real last name of the witness, not to waste time, because

15 Mr. Dragaj has provided several statements and has testified several

16 times before this Tribunal and his last name was recorded as Draga. It

17 was only yesterday that his real name was recorded, Dragaj. That's why I

18 took some time to do it.

19 There are also some other changes also to the official transcript

20 in comparison to the draft transcript, which I think was correct, and I

21 simply want to bring this to your attention. Thank you.

22 JUDGE PARKER: Before you sit, Mr. Djurdjic, is there some

23 significant point in Defence whether the last name of the witness is

24 D-r-a-g-a-j or D-r-a-g-a? Is it that you believe there are two different

25 people, two different witnesses, two different statements, or not?

Page 643

1 MR. DJURDJIC: [Interpretation] Thank you, Your Honour. I failed

2 to mention this. The actual last name of the witness is extremely

3 important for the Defence because now I can say this, Draga and Dragaj.

4 There are some of his relatives who were in the KLA, and I will put it to

5 him because Draga and Dragaj are one and the same last name, yet it is

6 presented as two different families. In annex F, you will see that some

7 people are listed as Draga and some as Dragaj. I'm not saying that they

8 are the same family. It's a large family. It has several branches, but

9 it is very important what his actual last name is, and this is why the

10 Defence first wanted him to state his last name, so that we all know

11 that.

12 JUDGE PARKER: Do I understand the Defence concern in the end is

13 to show that the family name, D-r-a-g-a is really the same family as the

14 family name, D-r-a-g-a-j? Yes. Thank you.

15 Can I just say what little the Chamber knows about the matter

16 you're raising, Mr. Djurdjic, and I think if there is still a difficulty,

17 it will have to be explored further. First, I believe the Chamber agrees

18 to the motion of Mr. Stamp with you that we will not commence a new

19 witness after we have finished the evidence of the present witness today,

20 and the next new witness will commence on Monday.

21 With respect to transcript, the normal process is that as the

22 evidence is given live and under very considerable pressure, a recorder

23 here in court and at least one outside of court listening to the evidence

24 and the translation into English of it produce a running transcript.

25 When there is time later in the day, the tapes are listened to again, and

Page 644

1 if it's found that there is some deficiency in what was first put down,

2 that is corrected. The corrections are made from the tape recording of

3 what was being said. Sometimes words are missed out. Sometimes

4 incorrect words are typed, and so on.

5 Of particular difficulty as the case is progressing and even when

6 the tape is checked later in the day are names, whether they are place

7 names, family names, or given names. That is because difficulties with

8 pronunciation, difficulties with spelling, particularly as one moves from

9 one language to another. The spelling of names and places changes. And

10 it's certainly so when you come to the names of people, not only between

11 languages, but when the name of a family or a person in one language is

12 translated, say, into English, there may be no precise exact translation,

13 and therefore there comes a variation.

14 Now, with this present -- with the witness Mustafa Dragaj, the

15 given name has varied in more than one way because in some cases it

16 finishes with an "F," in another with an "A," and yet another with

17 an "E." The surname is variously finishing in an "A" or with a "J."

18 Now, those differences have a lot to do with the translation from

19 Albanian into English of names which are rendered in one particular way

20 in the Albanian. They become evident if you look at the travel documents

21 of the witness and the official visas, et cetera, because his name is

22 produced on those variously in each of those ways.

23 So it is when you come to his statements and the evidence he's

24 given in previous trials, and there seems to be no question that they are

25 his statements and it is his evidence, and his name has been given

Page 645

1 previously here in courtrooms before other Chambers, and yet the name has

2 come out with different spellings each time.

3 As long as we're happy that we have the right man here, and that

4 doesn't seem to be your concern, our own limited knowledge so far, and it

5 will be informed if necessary more by evidence, is that there would be no

6 distinction in family grouping between D-r-a-g-a and D-r-a-g-a-j. But

7 that's really speaking mainly from my experience having had in two

8 previous trials similar ethnicity issues about family groupings. But if

9 that issue is to be contested, we will hear evidence on it, but it's a

10 matter perhaps you may discuss even with Mr. Stamp because I could

11 imagine that it may not be an issue between the parties. We will see.

12 Now, I hope that will assist you somewhat, Mr. Djurdjic. It's

13 not that a live transcript is produced as people are speaking and then

14 later somebody comes along and edits it and corrects it to a new version.

15 It's just that the same people who record it in the hurry as it is spoken

16 at a more leisurely time sit down with the tape again and try and correct

17 and complete what has first been typed, and there will, therefore, at the

18 end of the day, be a transcript which is more complete and hopefully more

19 correct than that which was produced as the words were being spoken. And

20 if you then have a problem with what is recorded in the final transcript,

21 that can be looked at. The tapes can be played again, and it can be seen

22 whether the transcript is correct or not.

23 But I can well understand the problems of producing the first

24 name and the family name of this witness in the course of hearing it,

25 just as you will understand if you look at the transcript of the last

Page 646

1 several days the number of different ways certain place names, certain

2 geographic villages or cities have been spelt in the course of trying to

3 produce in an English written form what the witnesses are saying.

4 Has that helped you to become more family with the procedures,

5 Mr. Djurdjic?

6 MR. DJURDJIC: [Interpretation] Thank you, Your Honour. The issue

7 was not the identity of the witness. It was not at issue at all. We

8 know that Mr. Mustafa Draga or Dragaj is one and the same person, the

9 person who was sitting here in front of us. That was not what I want to

10 raise. I merely wanted to draw your attention to another problem, and

11 that is that the running transcript produced in the course of the trial

12 in realtime was correct, whereas the official transcript that we received

13 was not. There were changes made to it that were now wrong.

14 The lady who sat here in the courtroom recorded everything

15 perfectly, but when the official transcript was done, changes were made

16 because the Defence is sure that in the first part until the

17 cross-examination the witness was named Draga, both in the official and

18 in the realtime transcript. The first time that he said that his name

19 was Dragaj was at the beginning of the cross-examination. But the

20 official transcript did not reflect what really occurred in the courtroom

21 because it now states Dragaj right from the beginning, and now it appears

22 that Defence was wasting time when, at the beginning of the

23 cross-examination, it asked questions about his actual last name.

24 The realtime version of the transcript was correct and not the

25 official transcript. That's what we say, and I do accept what

Page 649

1 Q. Good morning, Mr. Mustafa.

2 A. Good morning.

3 Q. Thank God, it appears that are you in good health, and I would

4 like to ask you whether you are still active as the head of your

5 household and whether you still do farming work.

6 A. No. I don't do any more farming work because my left hand is

7 trembling.

8 Q. Thank you. In 1999, is it true that one of your daughters lived

9 with you in your family?

10 A. Yes.

11 Q. You told us that your other daughter was married. Where did she

12 live? Who was she married to in 1992?

13 A. My daughter was married to Belush [phoen], but she lives in

14 Germany for 12, 13 years now. Belush.

15 Q. I asked you about 1999. What family was she married into in

16 Belush?

17 A. My daughter was married to a family of Istok in Belush. She was

18 married much earlier before the war. She was over 20 years, maybe she

19 was 25 when she got married.

20 Q. Thank you. You said that there were Serb houses in Leocina.

21 Could you please tell us how much Serb houses were there, were and where

22 were they located?

23 A. There were about 12, 13 households, not more than that.

24 Q. Thank you. Were those houses shelled on the 25th and the 26th of

25 March, 1999, while you were in the village?

Page 650

1 A. I didn't see whether they were shelled or not because the

2 Serbs -- the houses of the Serbs were behind my own house, so when I left

3 I didn't see what happened either to my house or to the house of the

4 Serbs.

5 Q. Thank you. And when you got back, did you see the Serb houses?

6 A. No, I didn't.

7 Q. Thank you. Did you perhaps know Stana Zigic?

8 A. No.

9 Q. And have you heard that she was kidnapped on the 19th of May,

10 1998?

11 A. No, I didn't hear anything. I have no knowledge about that.

12 Q. Thank you. Do you know when the Kosovo Liberation Army was

13 established, or when did you first hear of it?

14 A. I didn't know when it was established because I was not

15 interested in that.

16 Q. Yes, but when did you hear about the Kosovo Liberation Army for

17 the first time?

18 A. I didn't have any information that there was a KLA as such. I

19 wasn't interested in these things.

20 Q. Well, did you know maybe some people that were members of the

21 Kosovo Liberation Army?

22 A. I didn't know that.

23 Q. Thank you. Did you know Saban Dragaj?

24 A. I know -- I know him. He lives in Trevis [phoen] now. I've

25 known him for 30, 40 years.

Page 651

1 Q. He was born in --

2 THE INTERPRETER: Interpreter's remark: Could the counsel please

3 repeat the name of the place.

4 MR. DJURDJIC: [Interpretation]

5 Q. In Kladernica?

6 A. Mitrovic. Mitrovica.

7 Q. Was he a member of the Kosovo Liberation Army?

8 A. I don't know.

9 Q. And could you please tell me, did you see him in Izbica in

10 March 1999?

11 A. I didn't see him or anyone else during the time I was wandering

12 through the mountains there.

13 Q. What I'm asking you is about when you were in Izbica, between the

14 25th and the 28th. That is the period you specified, unless I'm

15 mistaken. Did you see him on the 30th or the 31st when you returned?

16 A. No. I never saw him either in Izbice or anywhere else.

17 Q. Thank you. Do you know Loshi Liri?

18 A. [Previous translation continues] ... know him. Yes, because he

19 was our doctor.

20 Q. Could you tell us where the health station at which he was

21 working was?

22 A. Runik.

23 Q. Who else was working with him?

24 A. I don't know who else worked with him. I only know Liri.

25 Q. Did you ever see Dr. Loshi wearing the KLA uniform?

Page 652

1 A. I never saw him dressed in any uniform.

2 Q. Are you aware of the fact that he was a member of the KLA?

3 A. I don't know that. The only thing I know is that he was a

4 doctor.

5 Q. Do you know Dragaj Demush?

6 A. Yes, I know him.

7 Q. Was he living in Leocina at the time?

8 A. Yes, he lives in Leqina.

9 Q. Throughout 1998 and 1999, did you ever see Dr. Loshi in Leocina?

10 A. No, because in 1998, most of the time I was staying in Mitrovica

11 with my wife.

12 Q. And what about between the time you returned and the start of the

13 shelling?

14 A. No, I didn't.

15 Q. You say that you were in Mitrovica in 1998. Do you actually own

16 a house there?

17 A. No. I was at the house of our in-laws.

18 Q. Where were your sons at the time, I mean in 1998?

19 A. In 1998, two of my sons had gone to Germany. Two had been there

20 before. Two stayed in Montenegro until the OSCE arrived.

21 Q. Was there any fighting in your village in 1998?

22 A. No.

23 Q. So you know nothing about what was going on in your village and

24 the surrounding area since the time you left, do you?

25 A. I am not clear about your question. Do you mean 1998 or 1999?

Page 653

1 Q. I mean 1998.

2 A. No, there was no house burned in my village in 1998.

3 Q. Thank you. Nevertheless, my question was, did you know anything

4 about what was going on in your village and the surrounding area during

5 the time you were at Kosovska Mitrovica?

6 A. No, I don't know what happened there when I was in Mitrovica

7 because I wasn't there and I wasn't interested.

8 Q. Do you know where the village of Lausa is?

9 A. Yes, I do.

10 Q. What is the distance between Lausa and Leocina?

11 A. I don't know. When you walk by foot, it's about three hours, I

12 think.

13 Q. Thank you. Are you familiar with the name Habit Haziraj? He's a

14 man from Lausa.

15 A. No, I don't know him. I never heard of him.

16 Q. Thank you. Did you see Dr. Loshi in Izbica on the 30th of March,

17 1999?

18 A. The 30th? No.

19 Q. I think you said you arrived in Izbica on the 31st of March.

20 A. On the 31st of March, we buried the corpses, but I went there on

21 the 26th of March.

22 Q. Thank you. Did you see Dr. Loshi on the 31st of March in Izbica

23 as you went about burying the bodies?

24 A. Yes, he was there.

25 Q. What was he doing at the time? Do you know?

Page 654

1 A. I didn't see what he was doing. We were carrying the corpses,

2 the coffins and digging up the graves, so I don't know what he was doing.

3 I only remember that he was in civilian clothes. I have never seen him,

4 actually, in uniform. I only know that he worked as a doctor.

5 Q. Thank you. What about the 25th of March, 1999? Was there any

6 fighting in or around your village, sir?

7 A. Yes. In Padalishte and in our village, there was shelling coming

8 from Belinca, in the direction of my house.

9 Q. Do you know who was shelling who?

10 A. Who else other than the Serb army and police, you think?

11 Q. You didn't see who was doing the actual shelling, did you?

12 A. They shell from higher up and from a distance, and nobody stays

13 in the way of a gun-fire.

14 Q. Were the shells coming from the different sides, from all over?

15 A. On the 25th, the shelling came only from the direction of

16 Belinca.

17 Q. What is the distance between Belinca and Leocina?

18 A. To tell you the truth, I don't know. I believe some

19 4 kilometers. My house is on a hill, so you can see from there, and even

20 today some bricks are still destroyed because of that shelling coming

21 from Belinca.

22 Q. But, Mr. Loshi [as interpreted], Belinca is not in Srbica

23 municipality, isn't it?

24 A. No. Belinca is in Istog, Istog municipality.

25 Q. Thank you. What about the distance between Leocina and Citak, if

Page 655

1 you walk?

2 A. It would take you about an hour.

3 Q. Am I right to say that Citak is north of Leocina?

4 A. I don't know, but I think you're right. It's near the asphalt

5 road to Peja.

6 Q. That's right, Mr. Mustafa. There is an asphalt road, the one

7 leading to Pec and from there to Srbica. And what about the distance

8 between Leocina and Izbica, again, on foot?

9 A. 30 minutes tops, maybe less.

10 Q. Mr. Mustafa, if I look at the map, Citak must be at least twice

11 as close to Leocina as it is to Izbica.

12 A. Citak and Izbice seems to be at the same distance to me, at

13 least.

14 Q. Mr. Mustafa, I have a map in front of me, OTP exhibit. It's a

15 65 ter exhibit, I think 615, and the page number is 30.

16 MR. DJURDJIC: [Interpretation] If we could please bring that up.

17 [In English] I'm sorry. [Interpretation] Wrong page number, I'm sorry.

18 The correct page number is 17. Could we please zoom in some more. Thank

19 you.

20 THE WITNESS: [Interpretation] I cannot read maps.

21 MR. DJURDJIC: [Interpretation] Stop right there, please. Can you

22 zoom in on Leocina, further up. Yes, yes. That's right. And then down

23 from there, Leocina -- there it is now, yeah. No, no, no. Lower down.

24 This is too far down. We have to get a view of Srbica. Right. Stop.

25 And then from Srbica, upper left corner, diagonally towards this square

Page 656

1 over there. No, no, no, with the arrow between --

2 THE INTERPRETER: Could counsel please speak into the microphone.

3 Thank you.

4 MR. DJURDJIC: [Interpretation] Leocina. Leocina. Right. A bit

5 further up from there, thank you.

6 Your Honours, I don't know if the witness can actually see this.

7 Maybe we could get him to mark these locations on the map for us, the

8 ones that I've just mentioned.

9 JUDGE PARKER: He's already mentioned to you, I think you were

10 distracted, that he can't read maps.

11 MS. KRAVETZ: Your Honour, if I may add, as well, that the

12 witness had indicated before court that he has an eyesight problem, so

13 he's unable to identify things on the screen. I had already alerted my

14 colleagues from the Defence to this problem.

15 JUDGE PARKER: I don't think we're going to get very far with

16 this witness with a map on a screen, I'm sorry to say, Mr. Djurdjic. Is

17 your point simply the distance by -- as shown on the map between the

18 villages that you've named?

19 MR. DJURDJIC: [Interpretation] That is precisely what I was about

20 to say, assuming that the witness himself would say that, not the

21 Prosecutor, although the witness himself did, as a matter of fact, say

22 that he couldn't read maps. But I do want the Chamber to get an idea of

23 the distances between these villages, and then there's the village of

24 Turicevac. If we lower the map further down, if we pull it down a

25 little, this is along the Srbica-Klina road, just for you to get an idea

Page 657

1 about the set-up of the area and where all these places are that the

2 witness has been talking about. You see Turicevac, further down, south

3 of Izbica, southeast, you might say Izbica, Vojnik, Turicevac.

4 Meaning -- just for you to get an idea. Just for you to get an idea,

5 that's why I wanted this map shown, this section of the map.

6 JUDGE PARKER: Thank you, yes. We see this. You will

7 appreciate, of course, that the witness, from his experience, is really

8 speaking of distance on foot, and you need a topographical map to see

9 whether you are climbing up very steep hills and going down again, moving

10 between two villages, whereas perhaps you're walking on roughly level

11 ground between two other villages, which is a fact that would be well

12 important to somebody walking on foot.

13 MR. DJURDJIC: [Interpretation] Thank you, Your Honours. I agree.

14 I do think that distances are very important, regardless of the lie of

15 the land. As far as the map is concerned, indeed, it doesn't exactly

16 show what the terrain is like.

17 Q. My next question is for Mr. Mustafa. Mr. Mustafa, why did you

18 head south instead of heading north and trying to reach the Srbica-Pec

19 road, which is an asphalt road - it's more urbanised, you might say -

20 since you found yourself running from the shells.

21 A. I was trying to escape the danger. I was trying to survive, and

22 I couldn't go there because there were tanks in that direction.

23 Q. How did you know there were tanks?

24 A. There were tanks at Gushanica. I've seen them.

25 Q. How long would it take to walk from Gusanica to Leocina?

Page 658

1 A. On foot, it will take you about half an hour, to Izbice.

2 Q. Mr. Mustafa, I'm asking you from Leocina, not to Izbica.

3 A. I'm not a driver and I don't know how long it will take you from

4 Leqina to Gushanica, but those who were driving those vehicles may know.

5 Q. Mr. Mustafa, I don't know what the problem is. I asked you and I

6 am quoting, "How long would it take you to walk from Gusanica to

7 Leocina," and not drive, since you made it sufficiently clear for our

8 purposes that you would normally walk to these villages. So my question

9 was, how long would it take to you walk from one place to the other?

10 A. It depends on the ground, on the terrain. Usually to Izbice, it

11 wouldn't take me longer than half an hour, for example.

12 Q. I'm not sure if you understand what my question was about. How

13 long would it take you to walk from Leocina to Gusanica? In terms of

14 time, how long? How much time?

15 A. I don't understand your question about Gushanica.

16 Q. Mr. Mustafa, you say you saw tanks at Gusanica. I'm asking you,

17 how long would it take you to walk from Gusanica to your own village,

18 Leocina? That is my question.

19 A. I don't understand your question at all.

20 Q. Mr. Mustafa, say you normally take an hour to walk from Leocina

21 to Izbica. Conversely, how long would it take you to walk from Leocina

22 to Gusanica?

23 A. The tank was at Izbice, and it took me half an hour to get there,

24 to Izbice.

25 Q. So from Leocina, you were able to see that there was a tank at

Page 659

1 Izbica, right?

2 A. I didn't see it from Leqina. I saw it from Izbice.

3 Q. Mr. Mustafa, you say that you saw two tanks at Gusanica. My

4 question to you was, as long as you're willing to answer it, of course,

5 how long will it take you to walk from Leocina to Gusanica?

6 A. There is no village called Gushanica. As I said earlier, I saw

7 these tanks at Izbice where the massacre took place, which I survived. I

8 never went to the asphalt road.

9 MR. DJURDJIC: [Interpretation] Can we please rewind the

10 transcript to that reference that the witness made to the two tanks that

11 he saw.

12 Q. Mr. Mustafa, can you now tell me again where it was that you saw

13 the two tanks on the 25th of March?

14 MS. KRAVETZ: Your Honour, I think that the witness has been

15 asked the same question several times, and he has already answered this

16 question.

17 JUDGE PARKER: There is unresolved a difference between what was

18 recorded as to the position of the tanks and what the witness is now

19 saying, and Mr. Djurdjic may properly explore that.

20 THE WITNESS: [Interpretation] Your question was not about the

21 25th of March. It was about the 28th of March when I saw these tanks.

22 The lawyer is asking me different questions.

23 JUDGE PARKER: I suspected that might be the answer, but it's now

24 become clear. The witness, in dealing with your question earlier, was

25 not speaking of the 25th of March when he saw tanks.

Page 660

1 MR. DJURDJIC: [Interpretation] I asked a question about the

2 shelling, and the witness answered that he saw two tanks on the 25th. I

3 didn't even know that he would mention those tanks, and then I asked him

4 where the tanks were, and he said they were in Gusanica, so my next

5 question was the distance between Leocina and Gusanica.

6 Q. So we're not talking about the 28th of March, 1999, Mr. Mustafa.

7 We're talking about the 25th. Could you please tell me whether you saw

8 tanks on the 25th or not.

9 A. On the 25th of March, I didn't see any tanks. I was in my house.

10 There was shelling going on from the direction of Belinca. This is how I

11 understood your question, that you were actually asking me about the

12 28th of March.

13 Q. Thank you. Did anyone tell you that you were to go to Izbica?

14 A. Nobody told us to go there. We went there out of our own free

15 will.

16 Q. Well, how come that all of you went to Izbica of your own free

17 will and that so many people went there, and there were other places

18 where people could seek shelter if there was any fighting going on that

19 actually made you leave?

20 A. We thought that that was the best place for shelter, and it was

21 the nearest of all.

22 Q. Mr. Mustafa, if I understand what you're saying correctly, your

23 sons- and daughters-in-law left, you didn't, for Izbica as early as the

24 26th of March, 1999?

25 A. That's correct.

Page 661

1 Q. Why did they leave for Izbica?

2 A. Why? Because the shelling started, and they started to burn the

3 area near the school at Leqina. They were forced to leave.

4 Q. They went to Izbica in daytime?

5 A. They went in the morning, and myself, I went to Izbice in the

6 afternoon, late afternoon around 5.00.

7 Q. They left while the village was being shelled; is that correct?

8 A. They were shelling, they were burning, and they were coming

9 closer to Leqina, as far as burning is concerned.

10 Q. And you were in the basement of the house during that time?

11 A. On the 26th, I was in the basement of my house with my wife. We

12 were trying to bake some bread, and at around 5.00 we left, too, because

13 they were coming closer and closer.

14 Q. From what direction, and who was coming closer, and where did you

15 see them from?

16 A. They were coming closer from the direction of Citak, and they

17 were entering Leqina. You can see that from my house very clearly

18 because my house is on a hill.

19 Q. How far were they from you, from where you were when you saw

20 them?

21 A. To tell you the truth, sir, perhaps less than a kilometre.

22 Q. That was the morning. You saw them in the morning when they were

23 one kilometre away from your house?

24 A. When they started the burning, in the morning. I don't know the

25 time, what the time was exactly, but it was maybe 10 or 11.00 in the

Page 662

1 morning.

2 Q. Thank you. And they didn't arrive at your house until 5 p.m.,

3 which was when you left for Izbica; is that correct?

4 A. I don't know when they got to my house. They were burning on the

5 way, and we just left and we didn't look back what was going on.

6 Q. Mr. Mustafa, my question was, by 5.00 when you left for Izbica,

7 the forces that you saw were not yet at your house. They had not yet

8 reached your house.

9 A. No. They didn't get to my house. Had they got to my house, they

10 would have killed me because they had to pass through the Dervisi

11 households to get to my house.

12 Q. The forces were in combat, and that's why they couldn't reach

13 your house, Mr. Mustafa, and that's how long it took them to pass the one

14 kilometre from the place where you saw them to your village. Is that

15 correct?

16 A. This is not correct. They had nobody to fight. What took them

17 long was that they were burning the houses, all of them, one by one.

18 Q. Thank you. When you left for Izbica, would you tell me, the

19 Leocina-Izbica road, it's a dirt road; am I right?

20 A. Yes.

21 Q. And the road goes from the north when you go from Leocina to

22 Izbica; is that correct?

23 A. Yes. It comes -- the road comes from the outskirts of Leqina.

24 Q. Can you describe the place where you were when you went from

25 Leocina to Izbica and you encountered those other people there in Izbica?

Page 663

1 A. It was a meadow, a 2-hectare meadow. It was filled with people.

2 It was the 27th of March. Everybody was on the meadow. Whoever had a

3 house in Izbice stayed inside. On the 27th, it was raining the whole

4 night, and we were outside in the meadow. Those who had houses in Izbice

5 were in their houses, but in the morning they left their houses, too, and

6 joined us in the meadow. The Serbian forces on the 27th surrounded

7 Izbice, but they still didn't reach the location where we were.

8 Q. My question was merely for you to confirm that this is the meadow

9 in front of the entrance into Izbica as you come in from Leocina. Can

10 you please just tell me yes or no?

11 A. No. You have upper Izbice, and the meadow is in the end of

12 Izbice. It is near the cemetery.

13 Q. Let's try this way if we can. The road that leads from Leocina

14 to Izbica, is it by the road where you buried those bodies on the 31st of

15 March?

16 A. The Leqina to Izbice road, first of all, comes to the upper

17 Izbice, then goes through the centre of the village and then to the

18 meadow; and at the end of this meadow is the place where we buried the

19 corpses. It's when you go in the direction of Turicevc, this place is on

20 your right-hand side.

21 Q. Thank you, Mr. Mustafa. Now you've managed to explain this to

22 us, what I needed. I don't want to be showing you photographs, but the

23 place where you were or the road from Leocina cannot be seen on the

24 photographs. Thank you.

25 MR. DJURDJIC: [Interpretation] Your Honours, I do believe that

Page 664

1 this is a good time for a break.

2 JUDGE PARKER: Very well, Mr. Djurdjic. We'll have the first

3 break now. We'll break for half an hour and continue the evidence at

4 11.00.

5 --- Recess taken at 10.28 a.m.

6 --- On resuming at 11.01 a.m.

7 JUDGE PARKER: Mr. Djurdjic.

8 MR. DJURDJIC: [Interpretation] Thank you, Your Honour.

9 Q. Mr. Mustafa, the first time that you gave statement was on the

10 11th and the 13th of September to the investigators of this Tribunal, and

11 you make no mention of the military there. Why did you then tell us

12 yesterday that the Serbian forces consisted of the military and the

13 police?

14 A. Whatever I knew, I said, the army and the police, because if

15 there were no army and police, then why should the investigator ask me in

16 the first place?

17 Q. Mr. Mustafa, in your statement from November 1999, you speak only

18 about the police. Is it true that in Izbica on the 28th of March, 1999,

19 there was only the police present?

20 A. There were army and police, but in the group where I was, and

21 they started to shoot us, there were only police.

22 Q. Could you please answer my question. In your statement from

23 November 1999, you never mentioned the military at all. Is that true?

24 A. Maybe a mistake has been made because I know that I mentioned

25 both the army and the police.

Page 665

1 Q. Who made the mistake, in your opinion?

2 A. The person who took the statement, maybe, because once it was in

3 English, once in Albanian. It took a lot of work to do that.

4 Q. I'm sorry. Did you give your statement in English?

5 A. There was an interpreter there.

6 Q. Well, were there any problems as you were giving that statement?

7 A. I don't know that there was any problems.

8 Q. Was the statement read back to you once it was drafted or,

9 rather, interpreted into Albanian?

10 A. Yes. They read it out to me.

11 Q. And you agreed with what was read back to you?

12 A. Yes. I accepted it.

13 Q. And that statement contains all the things that you said to the

14 people that you spoke to. Is that correct?

15 A. Yes.

16 Q. And after that, you signed every page of that statement,

17 regardless of the problems that you have with writing?

18 A. Yes, I signed.

19 Q. During the proofing session for your testimony here in - just a

20 moment - 2000 -- let me just go through your additional statement. In

21 August 2006, you were proofed but you didn't mention the military in the

22 additional statement.

23 A. As far as I know, I have mentioned it, but you know very well

24 that the army was there. All the world knows that, not only me.

25 Q. Mr. Mustafa, I was not there. I don't know that, but you were

Page 666

1 there, and you did not mention the military in the statement that you

2 gave when your recollection was the freshest, in November 1999, some

3 eight months or even less after the events that you're testifying about.

4 But -- well, that page contains seven or eight pages, and you never, ever

5 mentioned the Army of Yugoslavia or Serbia.

6 A. Maybe mistakes have been made, but all the world knows that the

7 Army of Yugoslavia was there, committing massacres, the army and the

8 police.

9 Q. Sir, can I then conclude that some years after the event, your

10 recollection is actually better than it was a shorter time after the

11 events?

12 A. Memory becomes weaker. One forgets, especially after suffering

13 traumas and massacres.

14 Q. Thank you, sir. Now, I would like to go back to the shelling,

15 and I have to show you Exhibit D001-3247.

16 MR. DJURDJIC: [Interpretation] If we could have it on the screen.

17 That's the transcript from the 1st of July, 2002. That's the Milosevic

18 case, page 737, lines 21 through 24.

19 Q. You say here, I didn't see the Serb forces shelling.

20 A. From which direction didn't I see them?

21 Q. Very well.

22 MR. DJURDJIC: [Interpretation] Now I would like to move on to

23 Exhibit D001-3247. I'm sorry, 3277. That's the Milutinovic case,

24 page 2392, lines 24 and 25, and page 293, lines 1, 2, 3, and 4 --

25 Q. When the Defence counsel asked you, You couldn't see the people

Page 667

1 who were shelling you while the shelling was going on. You said, No, but

2 I heard the noise caused by the shelling. The shells landed in our

3 fields, and how could anyone dare to look at the persons shelling you?

4 A. Yes, that's correct. The shelling and the flames from burning.

5 Q. But you did not see that, and you don't know who fired the shells

6 because you didn't see it. Is that correct?

7 A. Sir, how can you go there and see who's firing? You have to flee

8 and not be there, stand on the way of the gun-fire.

9 Q. That's absolutely true, but what you say is based on your

10 assumptions because you didn't really see that.

11 A. But who else other than the Serb army and police would have

12 shelled? This is a fact. All the world knows and not only myself who

13 was there and saw it.

14 Q. Mr. Mustafa, if I were to tell you that the KLA had artillery,

15 what would you say to that?

16 A. I don't know that the KLA has fought at all because if the KLA

17 had fought, then the Serbian army and police wouldn't have done what they

18 did, committing massacres. I didn't see the KLA at all fighting or any

19 troops by the KLA.

20 Q. You never saw the KLA at all, right?

21 A. The day of the burial, three or four persons I saw, when we

22 buried these persons in Izbice.

23 Q. Thank you. Yesterday, you said you had decided to go to Izbica

24 because you believed it would be safer there because there were no Serbs

25 around and the mountains were near. Is that true?

Page 668

1 A. Yes, that's correct.

2 Q. Were there any Serbs in Izbica?

3 A. There weren't Serbs in Izbice. There were no Serb households,

4 but there were police and army.

5 Q. Thank you. Why did it matter that the mountains were nearby?

6 A. The mountains were important because we could go to the

7 mountains, take shelter there, and protect ourselves from the danger. If

8 I went in the mountains, I wouldn't have been subjected to the massacre I

9 was subjected to.

10 Q. My question was, do you know who was in the mountains?

11 A. I don't know. Everyone fled for himself.

12 Q. Mr. Mustafa, there were members of the KLA in the mountains. Am

13 I right?

14 A. I didn't see anyone.

15 Q. Your sons were in the mountains, and they were together with the

16 KLA, weren't they?

17 A. No. No. My sons were there for themselves. They were not

18 together.

19 Q. Mr. Mustafa, your sons left the family in order to join the KLA

20 in the mountains and stay with them in the mountains, whereas you

21 remained behind to look after your family. Isn't that true?

22 A. This is not true. As I said, my sons went to find shelter, each

23 for themselves. They didn't go there to join the KLA.

24 Q. Mr. Mustafa, they didn't go to Srbica, to Kosovska Mitrovica, to

25 Klina, to Istok, or indeed to Pec. They went to the mountains, and they

Page 669

1 were armed. Is that not true?

2 A. No, this is not true. They didn't have any weapons, nor did they

3 join the KLA. After a while, they went to Montenegro and to Albania.

4 Q. Thank you. You tell us that you served in the army. I'm not

5 stating the year because I might get it wrong. Did you learn Serbian?

6 Are you fluent in Serbian? Did you learn it while you were in the army?

7 A. I learned a little, not much, but I have forgotten. A long time

8 has passed since then.

9 Q. After you left the army, you no longer used Serbian. Is that

10 true?

11 A. I didn't leave the army. I completed the entire two years. Then

12 I was released from the army.

13 Q. Yes. Yes. We know that, Mr. Mustafa, but after you were

14 released from the army, you no longer spoke Serbian, and as a consequence

15 you forgot the little you had learned, right?

16 A. I didn't speak Serbian.

17 Q. And you no longer understood Serbian. Am I right?

18 A. No.

19 Q. Can you then explain how it was that you understood the Serb

20 forces on the 28th of March in Izbica, what exactly they were saying when

21 they were speaking in Serbian?

22 A. I didn't understand anything. Even if they had spoken Albanian,

23 I wouldn't have understood anything. When they put us in that line and

24 ordered us to go up the mountain, planning to shoot us, I wouldn't have

25 understood anything.

Page 670

1 Q. Thank you. Is it not true that after all, you don't know what

2 members of the Serbian forces were saying on the 28th of March, 1999,

3 when you were in Izbica?

4 A. It is true. I only understood that they cursed because other

5 friends in the group told us -- this to us, and I saw when they were

6 throwing our caps on the ground. They were cursing Thaqi and Rugova.

7 Q. Thank you. But you did not understand anything else that they

8 were saying; isn't that true?

9 A. My friends there said to me that they are cursing us.

10 Q. Thank you. This man named Thaqi they mentioned, could you tell

11 me who he is?

12 A. Hashim, or Rugova, who now is no longer alive.

13 Q. So who exactly was Hashim Thaqi? What exactly did he do?

14 A. I don't know what he was and what he did then. I only know that

15 now he's a prime minister.

16 Q. What about 1999? What did he do in 1999?

17 A. I don't know. I don't know what he did. I've never met him.

18 Q. Well, then, it wouldn't have meant anything to you, would it, the

19 fact that they were mentioning Thaqi?

20 A. No. I didn't know him. I've seen him on television, now.

21 Q. Mr. Mustafa, bringing up Thaqi would not have necessarily

22 constituted an insult at the time, would it?

23 A. They know better what they said. I don't know.

24 Q. And what about 1999? Mr. Rugova, do you know what he did at the

25 time?

Page 671

1 A. I don't know what he did, but I've heard about him.

2 Q. Can I therefore conclude that the reference to Mr. Rugova was in

3 no way meant to be an offense?

4 A. They know what they said. They know whether it was an offense.

5 Q. Thank you. Mr. Mustafa, yesterday on two occasions you said that

6 there were no able-bodied men out in that meadow. May I ask you this:

7 What exactly would you consider a defining criterion for an able-bodied

8 man?

9 A. Yes. If they were young, they would have taken to the mountains

10 to escape from being killed and wouldn't have been killed as they were.

11 Q. Mr. Mustafa, please answer my question. Yesterday, on page 607,

12 paragraph 20, you said that among the men in that meadow, there were no

13 able-bodied men of military age, no more than two, perhaps. The younger

14 ones were all in the mountains. That's what you said, and I'm asking

15 you, who would you consider an able-bodied man of military age?

16 A. Young people are of military age, not the older people.

17 Q. Thank you. Are you aware of the fact that anyone up to 65 years

18 of age is liable to military conscription?

19 A. No, I don't know.

20 Q. Oh, you don't, but will you take my word for it? I was acting

21 once as Defence counsel for an Albanian because of blood vengeance and a

22 triple murder, 73 years of age, and another one for blood vengeance for

23 double murder, aged 68, and both had used rifles in the perpetration of

24 their crimes.

25 A. I can take your word, but what are you saying to me, that what

Page 672

1 these people have done, anyone can do? This is not good. Even if you

2 are 80 years old and you have a weapon, you can kill someone if you want

3 to.

4 Q. Thank you. So military age and the definition of an able-bodied

5 man depends on your health, on your physical condition; that's what it

6 depends on, doesn't it?

7 A. You're right. When we went to complete our military service,

8 first thing they did was to check our health and whether we were able to

9 serve. If you are not able, they would not accept you in the army.

10 Q. Mr. Mustafa, I didn't mean the regular military term. I meant

11 after that, regardless of one's age, depending on one's mental and

12 physical condition. That's what it depended on, didn't it, whether one

13 could be active in a military sense or not.

14 A. I don't know that. When you're old, the army doesn't need you.

15 Q. But if you're willing, you can still join, can't you? You can

16 still spend time with the army and do whatever you can. Is that not

17 true?

18 A. Everything has its own time. A soldier should be of a young age,

19 not old.

20 Q. Thank you. I will now be sharing with you some information from

21 attachment -- or annex F of the indictment. We have a total of

22 111 persons named in that annex; 20 of them under 50 years of age,

23 13 under 60 years of age, and 25 persons under 65 years of age. There

24 were another 11 persons whose age was not ascertained. Aren't all these

25 young people?

Page 673

1 A. These all thought that they would not be killed. Had they known

2 that they would be killed, they would have gone to the mountains.

3 Q. Thank you. I've given you this figure, not taking into account

4 the persons whose age could not be ascertained. Under the rules, 58 of

5 those men were able-bodied and of military age.

6 I would like to move on to a different question now. You say,

7 sir, that on the 31st of March, you counted the buried bodies, and the

8 total added up to 147. Did you personally count the bodies, sir?

9 A. I tried to count them. I might be mistaken with the figure.

10 Q. You must have been wrong. I just want to know whether it was you

11 who did the counting itself or whether it was someone else who counted

12 the bodies.

13 A. Many people were counting the bodies. I tried to count them,

14 too, to the extent that I could.

15 Q. All right. You say that members of the KLA were involved in the

16 burial as well. Can you state their names for me, please? Who exactly

17 was there?

18 A. I don't remember their names, but I know that three or four were

19 there. They were dressed in uniforms. I only remember Sadik Xhemajli's

20 name.

21 Q. Yes, but do you remember Rexhep Naim? Does that name ring a

22 bell?

23 A. I don't know this person.

24 Q. Very well. Do you remember that anyone drew up a list on a piece

25 of paper containing the names of the persons who were buried?

Page 674

1 A. I thought that Sadik was compiling this list and doing the

2 numbering.

3 Q. Right. Regardless of the actual figure, do you agree with me

4 that not only the bodies found in the meadow were buried but also those

5 found in other places, for example, in the woods?

6 A. There were people killed in the mountains too. Those who had

7 survived, they would crawl to the mountains, and they had killed them as

8 they were crawling to the mountains. Hajriz Draga, too, had crawled to

9 the mountains, but he died there. He didn't survive.

10 Q. Sir, I don't want to get tied down to Draga, but there were other

11 persons whose bodies who were found in the woods and they were also

12 buried in that field specified by one of your fellow citizens. Is that

13 right?

14 A. In that place, people who were killed on that day were buried.

15 Hajriz Draga and Sadik Hoti, they crawled to the mountain, and that's

16 where they died.

17 Q. Very well. What about the 28th of May, 1999? Did you see the

18 exhumation that was in progress or not?

19 A. Yes. I saw this from the hill. Before they came to exhume the

20 bodies, they shelled, and then they came and started exhuming the bodies.

21 They didn't finish all this work in one day. It took them four or five

22 days.

23 Q. Was there any fighting before one could reach Izbica?

24 A. There was never fighting in Izbice. Not a single gun-shot was

25 fired in Izbice. There was no KLA presence in Izbice, no KLA check-point

Page 675

1 in Izbice, and that's why we went there, because we thought it was safe

2 there.

3 Q. Very well. Your statement dated November 1999, the one you made

4 to the investigators, contains not a single reference of the exhumation.

5 A. They didn't ask me about this at that time. During the second

6 trial, they asked me about the bodies. During the Milosevic trial, we

7 only spoke of the massacre.

8 Q. Therefore, your recollection was much clearer back in 2006 than

9 it might be now -- than it might have been back in 1999.

10 A. The things that I experienced, I went through, I remember them

11 better.

12 Q. Sir, you did not in fact see the exhumation that was in progress.

13 Is that not a fact?

14 A. I saw the exhumation from the hill. If this was not the case, I

15 wouldn't have mentioned it.

16 Q. Sir, you only heard about the exhumation, did you not? Yet now

17 you are trying to have us believe that this was first-hand observation on

18 your part; are you not?

19 A. I did see them with my own eyes. The army and the police were

20 there, and you could see them from the hillside. You could see them very

21 well, where the bodies were, and on that day when the shelling was taking

22 place, I saw the police -- the Serb police and army.

23 Q. Thank you. Just a minute. I'm trying to locate the transcript

24 reference that I'm about to show you. It's about this very issue, and I

25 hope that I can pinpoint the location fast enough.

Page 676

1 But before we go there, do you agree that the forces arrived in

2 broad daylight?

3 A. Yes.

4 Q. Nothing was secret, was it?

5 A. No, there was nothing secret. They excavated the bodies. That's

6 what they came for. You know very well how bodies are exhumated. These

7 are a living witness of what happened, and they didn't even find half of

8 the bodies.

9 MR. DJURDJIC: [Interpretation] Can we please have Exhibit

10 D 001-3277. This is a portion of the transcript from the Milutinovic

11 trial. The date is the 25th of August, 2006. The relevant page is 2364,

12 paragraphs 1, 2, 3, 4, and 5.

13 Q. You were asked whether you saw the exhumations in progress, and

14 your answer was, No, we didn't because first they had shelled the area,

15 and then after that they exhumed those bodies. We knew from the day that

16 they shelled the location that this would happen. They exhumed the

17 bodies during the day because they stopped working overnight. When they

18 took the bodies away, I saw with my very own eyes that not a single body

19 remained.

20 A. I said that I was at the event, but I could see them when I was

21 up on the hill. And when I was up there, I could see the bulldozers, and

22 then they -- the bulldozer had covered over the area, so there was --

23 nothing remained there.

24 Q. 20 -- at page -- let me just check whether it's the same

25 transcript. At page 2391, paragraph 7, you say that Gani saw that, and