Tribunal Criminal Tribunal for the Former Yugoslavia

Page 353

1 Monday, 5 March 2007

2 [Prosecution Opening Statement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.21 p.m.

6 JUDGE ORIE: Madam Registrar, would you please call the case.

7 THE REGISTRAR: Good afternoon, Your Honours. This is case number

8 IT-04-84-T, the Prosecutor versus Ramush Haradinaj, Idriz Balaj, and Lahi

9 Brahimaj.

10 JUDGE ORIE: Thank you, Madam Registrar.

11 May I have the appearances. Prosecution first.

12 MR. RE: For the Prosecution, David Re, Senior Trial Attorney;

13 accompanied by the Prosecutor, Madam Del Ponte; trial attorneys

14 Mr. Gilles Dutertre, Mr. Gramsci Di Fazio, Ms. Nisha Valabhji,

15 Ms. Katrina Gustafson; and case manager to my left, Mr. Crispian Smith.

16 JUDGE ORIE: Thank you, Mr. Re.

17 For the Defence. First the Haradinaj Defence, please.

18 MR. EMMERSON: Your Honour, Ben Emmerson, lead counsel for

19 Mr. Haradinaj; together with Rodney Dixon, Susan Park, assisted today by

20 Mr. Michael O'Reilly and Mr. Andrew Strong.

21 JUDGE ORIE: Thank you, Mr. Emmerson.

22 For the Balaj Defence.

23 MR. GUY-SMITH: Good afternoon, Your Honours. Gregor Guy-Smith,

24 appearing on behalf of Idriz Balaj, with co-counsel Colleen Rohan and

25 assisted Natalie van Den Berge, Bart Willemsen, Aurelie Roche, and

Page 354

1 Joeri Maas.

2 JUDGE ORIE: Thank you, Mr. Guy-Smith.

3 And finally for the Brahimaj Defence.

4 MR. HARVEY: Good afternoon, Your Honours. Richard Harvey for

5 Lahi Brahimaj; with me, Mr. Paul Troop, that's my co-counsel; and we're

6 assisted by our case manager, Ms. Antoniette Trapani.

7 JUDGE ORIE: Thank you, Mr. Harvey.

8 Mr. Haradinaj, can you hear me in a language you understand? I

9 did not receive --

10 THE ACCUSED HARADINAJ: [Interpretation] Yes, Your Honour.

11 JUDGE ORIE: If there would be ever any moment when translation is

12 not functioning properly, would you please inform us.

13 And then, Mr. Balaj, same question for you.

14 THE ACCUSED BALAJ: [Microphone not activated]

15 THE INTERPRETER: Could we ask to turn on the mike, please, we

16 can't hear anything.


18 Could you please turn on the microphone; otherwise, the

19 interpreters cannot hear you. So the same question for you, Mr. Balaj.

20 THE ACCUSED BALAJ: [Interpretation] Yes, Your Honour. I can

21 follow it completely. Thank you.

22 JUDGE ORIE: Thank you very much.

23 And then finally, Mr. Brahimaj, same question for you. And could

24 you please turn on the microphone -- I see it's on already. Yes.

25 THE ACCUSED BRAHIMAJ: [Interpretation] Yes, Your Honour.

Page 355

1 JUDGE ORIE: You also can hear me in a language you understand?

2 THE ACCUSED BRAHIMAJ: [Interpretation] I can, Your Honour.

3 JUDGE ORIE: Yes. Whenever you would have any difficulties in

4 following the proceedings, please tell us immediately.

5 THE ACCUSED BRAHIMAJ: [Interpretation] Thank you.

6 JUDGE ORIE: Today is the opening of the trial, but before opening

7 the trial, I'd like to make a few small observations and remarks.

8 First of all, Mr. Re, I'm addressing you that it seems that the

9 exhibits and the list of exhibits that will be presented in evidence, that

10 the distribution of that is not going smooth yet. May I invite you to pay

11 specific attention to that element so that everyone in this courtroom is

12 able to prepare properly for the proceedings.

13 MR. RE: I hear Your Honour. We're concentrating on the first

14 witnesses.


16 Then another matter, just to make sure that everyone is aware of

17 that. The Chamber received this morning a motion filed by the Defence for

18 the exclusion of evidence.

19 MR. EMMERSON: Your Honour, yes.

20 JUDGE ORIE: Yes. We'll deal with the matter, not before the

21 opening statement, but we'll deal with the matter as soon as possible.

22 And, of course, the function of the exclusion of evidence, of course, is

23 different in the different systems. To keep matters away from the jury is

24 not exactly the same as Judges reading the material which is supposed to

25 be excluded, but we'll deal with the matter as soon as possible.

Page 356

1 MR. EMMERSON: Thank you.

2 JUDGE ORIE: Then next item I'd like to draw attention to is,

3 Mr. Re, it seems that witness protection pre-trial has been dealt with in

4 the normal way, but there's still a few lacunas in terms of protection of

5 witnesses during trial. I take it that you will, without any further

6 delay, will pay attention to that. Yes.

7 Then finally, some concerns have been expressed last Friday by

8 you, Mr. Guy-Smith, on opening statements, who would deliver it, what

9 happened on the Popovic case. I oriented myself and I notice at this

10 moment that in the Popovic case, the main issue in the beginning was

11 whether, when the Prosecutor was addressing the Chamber, whether that was

12 part of the opening statement and whether that opening statement was

13 supposed to be delivered in July or, rather, in August. That's a rather

14 procedural matter which is -- which does not in any way apply here, I

15 would say.

16 An opening statement is there to give an outline to, may I say,

17 the trier of fact - usually, of course, it's the jury - an outline of what

18 the Prosecution's case will be. The parties have, well, a wide discretion

19 in formulating the opening statement, the evidence to be presented as they

20 wish, and the Chamber, of course, there's no need to start every sentence

21 by saying, "The evidence will show that," because that would not only be

22 boring but be repetitious as well. But I think that everyone is fully

23 aware of what an opening statement is.

24 I would like to add to that that where, in strict jury systems, an

25 opening statement is really limited to facts and nothing else, and, of

Page 357

1 course, an opening statement here addresses the Chamber, the Chamber who

2 is not only a trier of fact, but also deals with legal matters. So where

3 it's of no use to address the jury with legal matters in an opening

4 statement, that might be different here.

5 I take it that, everyone being at a high professional level, is

6 fully aware of what is expected at this stage of the proceedings.

7 MR. GUY-SMITH: I'm grateful for your comments, Your Honour, and

8 believe that we do all understand the purpose of an opening statement. My

9 concern, as expressed before, was the question of whether or not it was

10 going to be used as a bully pulpit for a political speech, but I trust --

11 JUDGE ORIE: I do not see, and certainly not on the basis of the

12 Popovic example, that there would be any reason to express such concern

13 prior to hearing what the Prosecution is saying in its opening statement.

14 I also urge the parties, which is, from what I understand, quite common

15 not to object or intervene unless really necessary.

16 After having given this guidance, I'd like to declare this trial

17 open and give the opportunity to the Prosecution to address the Chamber in

18 its opening statement.

19 Madam Prosecutor, I see that you're on your feet, so I take it

20 that you'll at least start with the opening statement. Please proceed.

21 MS. DEL PONTE: Thank you. Thank you, Mr. President,

22 Your Honours.

23 This case is about crimes in Kosovo in 1998. But although this

24 trial takes place against the background of historic negotiation in 2007

25 to decide the future of Kosovo, I am not - I am not - here to make a

Page 358

1 political address. These proceedings have no connection with any wider

2 diplomatic events. My office takes no part in those matters and has no

3 involvement in them.

4 This is a criminal trial, and I have indicted the accused before

5 you on the merits of the case, on the facts. The three men come before

6 you accused of crimes - ugly, cruel, and violent crimes; crimes of murder,

7 deportation, torture, rape, abduction, forced imprisonment, and the most

8 brutal assault; crimes that took place out of sight, away from the eyes of

9 international observers or monitors. Be in no doubt, as the Prosecution

10 will prove, that these men - this warlord with his lieutenant and his

11 jailer - have blood on their hands.

12 And it is the blood of innocent civilians, victims who did not

13 support the accused or the cause of the KLA; victims who were very often

14 alone and vulnerable, and who were systematically targeted, abducted,

15 murdered and made to vanish. If these accused had had their way, their

16 victims would never have been seen again. They would have been simply

17 swallowed up among the other horrors of this conflict and would quite

18 literally have sunk without a trace in the silent waters of Lake Radonjic,

19 in the inner reaches of the Dukagjin Zone.

20 But the murdered victims in this case did not disappear. Their

21 bodies and their stories have been uncovered, and in the weeks that

22 follow, as the evidence emerges, they will speak to you in their own way

23 from their graves. The voices of those who were last seen in KLA hands,

24 whose bodies remain undiscovered or unidentified, will be heard through

25 the anguished voices of their grieving loved ones. The voices of some of

Page 359

1 those who were tortured and brutalised by the KLA will be heard directly

2 in the courtroom. There may not be many such voices, for this is not a

3 case, like others, that deal with mass exterminations and thousands of

4 deaths.

5 We will not be able to bring before this Court evidence of all the

6 crimes that were committed in this part of Kosovo. That would be

7 impossible. But as each day of this trial passes, as each witness is

8 examined and each document produced, I am sure the Chamber will begin to

9 penetrate the closed world of the Dukagjin Zone, which was the heartland

10 of the Haradinaj clan, in the centre of Ramush Haradinaj's power base.

11 Perhaps also, as in no other case, geography will be the key to

12 understanding the facts. Geography itself is another of the silent

13 witnesses in this case, and I would urge the Trial Chamber to pay

14 particular attention to the locations, the distances, the scale of the

15 activities, and the accessibility of the places that will feature in the

16 events. I would even encourage the Trial Chamber, at a suitable point in

17 the trial, to make a site visit to crime scenes so that you can see these

18 places for yourselves.

19 I make no apology; this will not be an easy prosecution. It is a

20 prosecution, frankly, that some did not want to see brought, and that few

21 supported by their cooperation at both international and local level. But

22 I insisted on this prosecution, and I bring it with the confidence that

23 the Trial Chamber will find the Prosecution evidence compelling and

24 convincing.

25 The protection of witnesses who have had the courage to come

Page 360

1 forward has been, and will continue to be, of critical importance. You

2 know that many witnesses are reluctant to testify. Some are even

3 terrified. The intimidation and threats suffered by witnesses in this

4 case has been a serious ongoing problem for the individuals concerned and

5 for this Prosecution. This problem has not gone away. Witnesses continue

6 to receive threats, both veiled and direct. Just this weekend, our first

7 direct victim witness --

8 MR. GUY-SMITH: Your Honour, if I might.

9 JUDGE ORIE: Mr. Guy-Smith.

10 MR. GUY-SMITH: I believe that the statements now are not only

11 highly prejudicial but go well outside the purpose of any opening

12 statement.

13 JUDGE ORIE: Madam Del Ponte, it is mainly understood that -- just

14 to give an example, that where the witnesses are well -- are going to tell

15 the truth or not, that's an evaluation already of -- what will happen is

16 not appropriate during an opening statement.

17 I wonder whether -- of course, this Chamber will have to decide

18 on -- it has not decided yet, as I mentioned before, on matters of witness

19 protection, and of course we'll hear, I take it, from the Prosecution the

20 need for such protection. If no further detail would be needed in

21 relation to the reluctance of witnesses to testify, and that's one of the

22 problems you encountered in preparing this -- preparing this case, then I

23 would suggest that we proceed with hearing from you what the evidence will

24 bring us, unless you would disagree with me and then I'd like to hear you.

25 MS. DEL PONTE: Mr. President, I'm just informing the Court that

Page 361

1 this weekend - that this weekend - I received an information about threats

2 that a witness have received now.

3 JUDGE ORIE: I do understand that that's --

4 MS. DEL PONTE: So I wonder why I could not inform the Court about

5 an event, about the facts that occurred during the weekend and it's

6 directly related with this trial. Because, Mr. President, if I have no

7 witnesses appearing in court, I will be obliged to withdraw this

8 indictment.

9 JUDGE ORIE: Madam Prosecutor, I think there's nothing

10 inappropriate informing the Court about threats. But whether, at the

11 opening statement, where in general terms you have set out that this is of

12 major concern to the Prosecution, whether to go into any further details,

13 where we'll not be able to further inquire into the matter, whether that

14 would be the best course is subject to doubt. One second.

15 [Trial Chamber confers]

16 JUDGE ORIE: The Chamber invites you to proceed.

17 MS. DEL PONTE: The Chamber has already granted protective

18 measures to more than a third of our witnesses. I know that you

19 understand and appreciate the difficulties that witnesses face in

20 testifying against these accused. But what I want to say, Mr. President,

21 is that I have full confidence that you will take every possible measure

22 to allow the witnesses to travel to The Hague to testify safely and to

23 allow the truth to be heard.

24 Your Honours, there was nothing noble or heroic about the crimes

25 in this case. There was nothing patriotic or virtuous about them. They

Page 362

1 were brutal and bloody murders. The three accused were gangster in

2 uniform and in control, and as the Trial Chamber will see, that prove to

3 be a sinister and deadly combination for the victims in this case.

4 Thank you, President.

5 JUDGE ORIE: Thank you, Madam Prosecutor. May I take it that

6 Mr. Re will continue the opening statement?

7 MS. DEL PONTE: Yes, Mr. President, with your authorisation.

8 JUDGE ORIE: Then, Mr. Re, you are invited to proceed.

9 MR. RE: With the words of the Prosecutor in the Court's ears,

10 nothing noble, heroic, patriotic, or virtuous about the crimes that were

11 committed by the accused. The crimes charged against these accused arise

12 out of the tragic events in Kosovo in 1998. It was a war in which crimes

13 too numerous to detail were committed against innocent civilians by both

14 sides to the conflict. These were crimes that resulted ultimately in the

15 trial of Slobodan Milosevic; crimes that put on trial other members of his

16 government, including his Prime Minister; and other generals in another

17 court as we sit here today. They were crimes that resulted in the

18 conviction of a KLA member before this Tribunal for torture, murder, cruel

19 treatment, in a KLA prison camp in which that Trial Chamber, the

20 Limaj Trial Chamber, found that there was "quite a culture of violence in

21 that prison camp."

22 Well, that was a culture of violence which pervaded the area under

23 the control of these accused before this Court today. In that brutal

24 conflict, both Serbs and Albanians, both sides, committed war crimes. The

25 crimes charged here in this court involved acts of unspeakable brutality

Page 363

1 against an innocent civilian population, a population targeted by the

2 accused and their KLA associates, either for not supporting the KLA or

3 merely - merely - for the perception of not supporting the KLA.

4 Alleged collaborators were shown absolutely no mercy. They were

5 driven from their homes, they were driven from their villages, they were

6 abducted, they were held at the point of a gun against their will, they

7 were tortured in prison camps under KLA control. These accused sitting in

8 this court committed despicable crimes against humanity; they committed

9 serious war crimes.

10 They committed these crimes as part of a joint criminal enterprise

11 to consolidate control over a small part of northern Kosovo; this area is

12 known as the Dukagjin Zone. Your Honours will hear a lot about this

13 particular zone in this trial. I'll display it on the overhead for

14 Your Honours' benefit.

15 The first map is the Times map of the Balkans in which you can see

16 Kosovo. We'll move down Kosovo itself to the -- Your Honours can see on

17 the map, the map of Kosovo. The northern part is the Dukagjin.

18 Next slide.

19 You can see the length of it on red on the left is about

20 100 kilometres in width, and you can compare that on the map on the right

21 to that of the Netherlands.

22 JUDGE ORIE: Mr. Re, may -- I expect that you'll later on present

23 these maps in evidence so that they -- or do they need any marking for

24 identification at this moment?

25 MR. RE: Well, it's part of the opening. I can certainly present

Page 364

1 them in evidence at a later point they're --

2 JUDGE ORIE: Yes, I expect that you're referring to matters that

3 you'll later introduce into evidence.

4 MR. RE: Of course.

5 JUDGE ORIE: Yes. Okay. Then, if none of the parties disagrees,

6 then I'd like not to have exhibited it at this moment, just to be

7 illustrative material.

8 MR. GUY-SMITH: That will be fine.

9 JUDGE ORIE: Yes, please proceed.

10 MR. RE: The next map is labeled "Dukagjin Operative Zone," and

11 that was accused Haradinaj's area of responsibility zone. You can see the

12 blue part on the left, which shows it against the Albanian and Montenegrin

13 border and dissecting the left-hand third of Kosovo.

14 Moving to the next slide, there's a red place in the middle, and

15 that is the are under the total KLA control of Haradinaj. If you put it

16 in the next slide, you can see it in another map which shows an overhead

17 of Kosovo.

18 Now, a military campaign in which these accused indulged is not

19 illegal under international law, but the means by which the accused

20 consolidated their control most certainly was; and that is, Your Honour,

21 why they sit here today. The result of their military campaign of fear,

22 violence, and persecution between March and September 1998 was 48 murder

23 victims, of which 35 bodies have been recovered; 13 of these were found in

24 a small area along the Lake Radonjic canal, less than 1 and a half

25 kilometres from the home of Ramush Haradinaj in Gllogjan; 8 bodies remain

Page 365

1 unidentified; 13 of the victims disappeared without trace in KLA custody;

2 29 of the victims were tortured while in KLA custody; one woman was raped

3 by the accused Balaj, who sits in court today; 35 victims were abducted.

4 The villages were, to use the term which has become known in the

5 media, cleansed of their non-KLA-supporting inhabitants. These were

6 mainly Kosovo Serbs and Roma. By the end of April 1998, almost no Serbs

7 remained in the villages in Haradinaj's Dukagjin Zone. Their houses and

8 properties were destroyed and Orthodox churches, cemeteries and tombstones

9 were desecrated. 123 Serb families lived there in January 1998; the last

10 couple, the last Serb couple, an elderly one, left on the 5th of May,

11 1998, when KLA soldiers came to their house and told them that they

12 belonged -- the area belonged to Albanians and they, the Serbs, should go

13 to Serbia. They did.

14 But who are these accused? Who are the accused sitting in the

15 court today? The three accused are primary members - the primary

16 members - the most important participants in the joint criminal enterprise

17 charged by the Prosecutor. They were all very important members of the

18 KLA, that's the Kosovo Liberation Army, or the Ushtria Clirimtare e

19 Kosoves, or the UCK, UCK, in the Dukagjin area.

20 As early as November 1997, a communique published by the KLA used

21 these chilling words: "Every collaborator whom in this form or that

22 causes harm to the Albanian nation is to suffer." For the purposes of

23 this opening, I'm not going to detail or go into any detail on the law. I

24 will only briefly say that they were members of the joint criminal

25 enterprise; it's pleaded in the indictment. It's set out in great detail

Page 366

1 in our pre-trial brief filed on the 29th of January. Your Honours know

2 the law; I don't need to trouble you with the law.

3 But I will remind you of the purpose of the joint criminal

4 enterprise that is pleaded, and that was to violently suppress any form of

5 perceived opposition to the KLA within the Dukagjin Zone; to allow the KLA

6 to control its total control -- consolidate its control over that area.

7 Those in this joint criminal enterprise or those used by its participants

8 sought to expel, either by force or threat of force, all Serb civilians

9 from the area. As I said before, they did this by armed attacks,

10 abductions, torture, and ultimately by the ultimate sanction of murder.

11 The participants to this joint criminal enterprise worked to

12 suppress any form of perceived or potential collaboration with the Serbian

13 authorities or opposition to the KLA members by the civilian population.

14 They did this by violently targeting perceived collaborators and opponents

15 in a manner intended both to stifle opposition to the KLA and to allow the

16 KLA to control the general population through a campaign of intimidation,

17 fear, and violence.

18 The campaign, as I said, lasted from March to September 1998, and

19 during this time the non-KLA-supporting residents of the Dukagjin Zone, in

20 this small area of Kosovo, which Your Honours saw on the map a moment ago,

21 lived in fear of their lives.

22 Ramush Haradinaj, known as Smajl, was born in 1968. He became a

23 commander of the zone in February 1998 upon his return to Kosovo to

24 participate in the struggle against the Serbian authorities. As the

25 commander in that zone, he was by far the most powerful and important

Page 367

1 individual in that zone. He was aware of what was going on in the zone.

2 He received regular reports from his subcommanders. Such was his power

3 that he controlled who could enter his territory, as well as movement

4 within his territory; he organised, he planned, he personally led KLA

5 operations. He appointed subcommanders and officers. He assigned

6 soldiers and duties to -- soldiers and units to duties within the area.

7 He established local village headquarters. He issued orders to officers,

8 to local village commanders. He issued orders to the general population.

9 He ordered mobilisations. He created brigades. He appointed brigade

10 commanders. He personally controlled the collection and distribution of

11 arms and supplies within the zone. He organised military training. He

12 himself took responsibility for disciplinary and financial matters,

13 including collecting and distributing funds throughout the zone. He

14 established an army within that zone. He was a member of the KLA's

15 General Staff. He, Haradinaj, personally prohibited all political

16 activity on the basis that, due to wartime conditions, the KLA was the

17 responsible authority within the Dukagjin Zone.

18 Such was his control over what went on in that zone that Haradinaj

19 himself took control over civilian affairs within that zone. As an

20 example, a list of duties he sent to village headquarters included

21 supplying the general population, registering births and deaths in the

22 village, ensuring the rational use of "national resources," and even down

23 to the minor details of assisting the population in sowing and harvesting

24 crops.

25 The breadth of his power between March and September 1998 was

Page 368

1 consistent with his stated goal of "bringing war to the people." At the

2 time of his indictment, he was the Prime Minister of Kosovo.

3 Idriz Balaj goes by the nickname of Toger, or Togeri, meaning

4 lieutenant. He was born in 1971. During the indictment period he

5 commanded a special unit called the Black Eagles; it was based in the

6 small village of Rznic, or Irzniq, according to the Serb or Albanian

7 name. It had between 40 and 100 members. Haradinaj helped to train the

8 Black Eagles. Balaj was directly subordinated to Haradinaj.

9 Who were these Black Eagles? The Black Eagles were notorious

10 throughout the zone for their brutality. They were notorious because

11 Haradinaj gave them free reign to operate throughout the zone. The

12 Black Eagles abducted, imprisoned, tortured, and murdered

13 non-KLA-supporting civilians. Balaj, as its commander, operated with

14 absolute impunity. He was a law unto himself in the Dukagjin Zone.

15 He carried with him a notebook. The notebook contained the names

16 of "wanted persons." The wanted persons were people that Balaj was

17 looking for because they opposed the KLA in some manner or another, or

18 were perceived to be opposing the KLA. The bodies of 43 such people were

19 found along a stretch of canal less than 2 kilometres from his

20 headquarters, a stretch of canal which goes through the village in which

21 his headquarters were located. That area, that stretch of canal, was

22 known locally at the time, and for very good reason, as the Black Eagles'

23 execution site. In September 1998, the bodies of some 20 victims were

24 found directly next to the execution site, next to a section of the wall,

25 the canal wall, riddled with bullet-holes. Cartridges were found next to

Page 369

1 the bodies - and I'll come to that a little later in my opening - and a

2 number of bodies were found floating nearby in the canal.

3 After the cessation of hostilities, Balaj became a major in the

4 Kosovo Protection Corps. Balaj himself, in his own diary, which I'll

5 display on the board -- of the rote of the period before April 1998 -- can

6 Your Honours read what's displayed on the overhead?

7 JUDGE ORIE: If something is put on the ELMO, then we can read it,

8 but -- well, at this moment it's, yes.

9 MR. RE: It was just a little clearer than my own.

10 JUDGE ORIE: It's clear. That's e-court.

11 MR. RE: In e-court, I'm sorry.

12 JUDGE ORIE: The e-court button, yes.

13 MR. RE: He wrote: "Of the period before 14 April 1998, during

14 this period, I," Balaj, "thought that the Special Unit could operate

15 within the framework of the zone to help the country so we could damage

16 the enemy. With the help of Commander Ramush Haradinaj, the opportunity

17 existed and a request was granted for the creation of the Special Unit

18 known as the Black Eagles. It was formed on the 14th of April, 1998, in

19 the village of Gllogjan. In each village I assembled some lads and

20 trained them for the Special Unit with the help of Commander Ramush."

21 He then goes on to say: "It had between 40 and 100 soldiers and

22 it undertook many operations in the villages named."

23 In his own pre-trial brief, Haradinaj says of the Black Eagles,

24 they were a group of KLA soldiers whose function was to provide military

25 support to the armed Kosovar Albanian resistance and to mount attacks on

Page 370

1 Serb military positions and personnel. They were deployed often in small

2 combat units across the zone and outside it.

3 What, of course, he doesn't mention is the fact that these were

4 the Black Eagles who were taking abducted Serbs, and those who did serve

5 and oppose the KLA, to an execution site by the side of the canal and

6 shooting them.

7 Lahi Brahimaj, also known as Maxhup, which is Albanian for gypsy,

8 was born in 1970. On the 23rd of June, 1998, he was appointed the deputy

9 commander of the Dukagjin Zone, and after became a high-ranking member of

10 the Kosovo Protection Corps. His role in this indictment is mainly

11 connected with the operation of the KLA's notorious detention centre in

12 Jablanica.

13 On the screen in front of you, you will see what is now the wreck

14 of a farm building outside of Jablanica, which was where he established

15 his detention facility. You can see it on the right of the screen, the

16 remains of the building in which he had his office, and underneath it

17 there is a basement in which the prisoners were kept. The basement was

18 often full of water.

19 The other accused, Haradinaj and Balaj, regularly visited the

20 prison. It was in that prison that the KLA tortured, mistreated, and

21 ultimately murdered many of the victims, the bodies of which were found

22 along the Radonjic Canal. Brahimaj himself lived about 1 kilometre -- his

23 headquarters were about 1 kilometre from the prison.

24 An armed conflict is necessary for the jurisdiction of the

25 Tribunal. From at least the 24th of March, 1998, there was an armed

Page 371

1 conflict in Kosovo, and in particular in this part of Kosovo, the part

2 relevant to the indictment. Now, why do we choose that date? That date

3 is significant to this case because it was on that date that Serbian

4 military and MUP forces attacked the Haradinaj family compound in

5 Glodjane, and it was from that date that Haradinaj was the undisputed

6 commander of his zone.

7 Now, the Defence pre-trial briefs make something of the fact that

8 the Limaj case, the Trial Chamber found at paragraph 134, that before the

9 end of May 1998, the KLA sufficiently possessed the characteristics of an

10 organised group able to engage in an internal armed conflict. Now, the

11 Defence do not want the Trial Chamber -- they do not want the Court to

12 find an armed conflict before that date; that is, before the end of May

13 1998. However, the Limaj case was very different to this particular case

14 before the Trial Chamber.

15 The crimes charged were in a different zone. You'll see in

16 e-court now the crimes -- you will see the crimes, the area charged was in

17 the Lapusnik zone and for murders in Berisha. If we just go back to the

18 entire one, you can see on the left of the map is the Dukagjin Zone and on

19 the right of the map is the Limaj -- is the Limaj area. So you can see

20 when you look at the two together, they are entirely distinct zones and

21 there is absolutely no conflict between the Limaj Trial Chamber making a

22 finding in relation to an indictment confined to a later period and

23 Your Honours finding an armed conflict existing on an earlier -- in an

24 earlier period.

25 In fact, the Serbian authorities had no doubt that they were

Page 372

1 engaged in an armed conflict from that earlier date, and I will

2 demonstrate that a little later. Indeed, Haradinaj himself made no secret

3 of the fact, or at least before he was indicted for war crimes, that the

4 armed conflict existed before the end of May 1998.

5 On the 5th of September, 2001, several years before he was

6 indicted, he was interviewed by a Swiss journalist. He told her, and you

7 will see on the display in e-court, "where was your base? I think you can

8 tell me this. What was your base during the war?" And he said, "Pec

9 Decane, Djakovica, up until the region of Klina. I was there the whole

10 time. From March 1998 until June 1999, 15 months" - yes, that's 15

11 months - "of open warfare. I was there face to face," I underline that,

12 "face to face with the Serbs."

13 Now, those aren't the words of a man who was not engaged in an

14 armed conflict in March, April, and May 1998.

15 In his own book, while describing the military attack, the Serbian

16 military attack on his house or the family compound in Glodjane, he

17 said -- this is in relation to an attack in Prekaze. "After what happened

18 in Prekaz, Likoshan, and Qirez we, in the Dukagjin zone, did not sit

19 twiddling our thumbs."

20 Just highlight the bottom part.

21 "Serbian forces were continually attacking everywhere, day and

22 night, and totally in the open. Serbia saw the danger of the war

23 spreading, and, of course, also saw the war coming very close to the

24 border. At the same time, we had started preparations for more direct

25 action with open attacks and open war. I believe that the Serbs knew that

Page 373

1 Jabllanice was a flash-point for the war."

2 Those are in his own words. Also in his own words, in his own

3 book, when asked about the attack, Haradinaj said -- when describing the

4 attack, he said: "I knew that something would happen after Gllogjan was

5 built up. The events of March 24th happened almost without any

6 consequences, and when we started, we knew that neither side would give up

7 its ambitions."

8 I pause there. "Neither side." An armed conflict requires two

9 sides. Haradinaj there, in his own book, is describing the fact that

10 there were two sides to the conflict in March 1998.

11 "So you had to work, or be wiped out. My first idea was for

12 Gllogjan not to be the front line. This should be at least one village

13 further on, so that we would have a base behind the lines. To wage a war,

14 you have to have a base of this kind to give you room to prepare

15 operations, for soldiers to rest, et cetera. So we worked hard to take

16 equipment as fast as possible to the villages where the enemy would come,

17 such as Irzniq, Baballoq, Gramacel, and Shaptej. We then extended the

18 firing line as far as Rastavica. Seeing that we were expanding, Serbia

19 also worked hard but not to destroy us, and solely with the idea of taking

20 certain positions as close to us as possible, to hem us in until the day

21 when they would strike back."

22 Now, retired Yugoslav army general, Dragan Jovanovic, who was in

23 the field for the entire period of the indictment and commanded the 125th

24 Motorised Brigade of the Yugoslav Army, from the 12th of June onwards,

25 will testify that on the -- will testify in this court that on the 28th of

Page 374

1 February, 1998, KLA soldiers, that his soldiers, as part of an organised

2 group, attacked a Serbian Ministry of the Interior - that's what we call

3 in this Court MUP - patrol in the village of Likosane. Jovanovic will

4 tell the Court it was from then, the 28th of February, 1998, that the VJ,

5 the Yugoslav Army, realised that the KLA was militarily organising itself

6 and getting trained. KLA incidents with the VJ and the MUP, that is, the

7 combined Serbian forces, continued from then onwards.

8 As an example, I'll display on the screen an order or a report

9 dated the 23rd of February, 1998, entitled "Military

10 Secret - Confidential" and signed by Colonel, now General, Bozidar Delic,

11 who will also testify in this Court, and he said: "In the last months of

12 1997, but especially January 1998, there has been a significant

13 deterioration in the political and security situation in the territory of

14 Djakovica municipality," and he describes an area which is the Dukagjin

15 Zone, the area -- or partly the Dukagjin Zone. The area has a total

16 surface of 90 square kilometres, and the villages which are leading in

17 extremism are the villages of Jablanica, Kraljane, Zabelj, Grgoc."

18 Underneath that, he wrote: "According to what we have learnt,

19 this territory has not been under the control of the Republic of Serbia

20 organs since several years ago. As the Crmljane police department

21 withdrew, the territory was fully abandoned for years, only to fall under

22 the control of the separatists and terrorists of the so-called KLA in

23 1997."

24 A KLA communique issued on the 11th of March, 1998, referred to a

25 conflict, clashes between Serbian military and KLA fighters. It said: "In

Page 375

1 the last few days since 7th of March, our armed forces have clashed on a

2 broad front, with formations of the occupying Serbian military and police

3 forces and Chetnik volunteers. Military confrontations stretch across a

4 wide front, extending from Gllogoc in the direction of Skender in the

5 north, towards Kline, Mitrovice in the east, and the villages along the

6 Cicavice ridge from Gllogoc in the direction of Prishtina including many

7 villages in the Drenica village -- Drenica region. Underneath that, the

8 UCK, that's the KLA's military formations also engaged occupation forces,"

9 that's the Serbs, in the "Llap region, in the area between Decan, Gjakove,

10 and Kline, and between Malisheve and Rahovec crossing from the Lumihat

11 region. There were also engagements on a line stretching from Decane to

12 Pec."

13 And underneath that: "The UCK fought the invader's forces and

14 succeeded in breaking through the enemy's lines on several fronts against

15 police and military sieges, inflicting heavy losses on the enemy's

16 military, police, and volunteer forces and considerable material damage."

17 That was contemporaneous with a report written by General Delic,

18 who -- again, he will testify in this court, on the 5th of March, talking

19 about his, the 549th Motorised Brigade's area of responsibility. And he

20 said: "What is characteristic about these events is the fact that an

21 escalation of terrorist activity has taken place," meaning the KLA,

22 "widening the area of operations of the terrorist groups in the area of

23 Jablanica. We estimate that the attacks on the Serbian population in the

24 villages of Bec, Crmljane, and Ratis, will be followed by attacks on the

25 remaining Serbs in the villages of Bites, Janos, Ljug Bunar, and Vranic.

Page 376

1 We believe that the terrorists' primary objective in these attacks was not

2 killing Serbs but creating panic, abandoning property, and moving out of

3 Kosovo. It seems that this objective will be accomplished to a great

4 extent."

5 Well, those were certainly prescient words because that is exactly

6 what happened.

7 On the 22nd of April, 1998, Colonel Lazarevic of the

8 Pristina Corps reported to a commander of a terrorist attack, in which he

9 describes 20 or 30 terrorists," which of course indicates an organised

10 force, "launching an infantry attack on a section of units of the 52nd

11 Military Police Battalion. At the time we had information from the MUP

12 that three tractors carrying weapons were travelling from Bec, and we

13 believe they were travelling in the area of Jablanica. The attack lasted

14 approximately 30 minutes."

15 Another indication of the military conflict that was occurring at

16 the time is in a daily report sent on the 3rd of May, 1998, in relation to

17 an attack on that day by "Albanian terrorists on a MUP patrol near

18 Djakovica, near Panosevac village, which they say, "following this

19 village, synchronised mortar fire was opened from the surrounding villages

20 at the MUP check-point located on the Panosevac village."

21 On the 9th of May, the commander of the 549th Brigade reported

22 that because of the activity of terrorist gangs on the main road,

23 Pristina-Klina-Pec-Djakovica, an order had to be issued, it was a very

24 serious order in military terms, an order one says: "Until further

25 notice, I forbid movement of all military vehicles and civilian vehicles

Page 377

1 transporting members of the corps along the Pristina-Klina-Pec and the

2 Pristina-Klina-Djakovica roads."

3 It went further. On the 12th of May, General Pavkovic issued an

4 order in the Pristina Corps, again referring to the activities of

5 terrorist gangs, and both General Delic and General Zivanovic will tell

6 the Court that this was referring to -- they received these orders. This

7 was referring to the KLA, organised KLA activities. This order was more

8 serious. Such was the deterioration of the situation as of the 12th of

9 May that order number 1 said: "Until further notice, I prohibit any

10 movement of army vehicles and civilian vehicles belonging to army officers

11 and civilians employed by the army used for driving members of the corps

12 on those main roads."

13 General Zivanovic and General Delic will tell the Court that the

14 Serbian military and Ministry of the Interior forces suffered continual

15 attacks, organised attacks, by KLA forces in that period before the period

16 in which the Limaj Trial Chamber found an armed conflict existed in

17 Kosovo.

18 In fact, the KLA, in issuing a communique on the 13th of May, was

19 likewise of the view, as the Prosecution is, that an armed conflict was

20 occurring in May in that particular territory, particular area. And they

21 describe the period during March, April, and the first part of May, "the

22 Albanian people's struggle against the Serbian invade had continued and

23 grew stronger under the leadership of the KLA. On the orders of the

24 UCK/KLA General Staff, successive organised operations against the

25 invasion troops," that is, the VJ and the MUP, "were carried out in

Page 378

1 Operational Zone 1, that is, the operational subzones of Drenica, Erenik,

2 Dukagjin, Pastrik, and Llap." They then say: "In the course of bitter

3 fighting on the front, the invading forces carried out major human and

4 material losses. Throughout this --" and chillingly, chillingly, the next

5 line said: "Throughout this period, operations were also carried out

6 against Albanian collaborationists who, despite earlier warnings, did not

7 abandon their anti-national courses of action."

8 In the subzone of Erenik, several successive operations were

9 carried out against the invader in Glodjane, Baballoq, and Hulaj. Our

10 forces," that is KLA, "waged a bitter struggle against the enemy," that's

11 the VJ and MUP, "throughout the period. Our army" - army - "has broken

12 the enemy's attacks and is continuing successfully to fight and defend the

13 liberated areas."

14 Zivanovic will testify that on the 23rd of May, KLA soldiers

15 mounted such an attack upon his -- that is, Zivanovic's force, in the

16 Djakovica-Panosevac road, that he, Zivanovic, needed to deploy 200

17 soldiers to secure the border area. In military terms, 200 soldiers is a

18 lot of manpower.

19 The attacks continued throughout June and July. Zivanovic will

20 enforce that the road from Djakovica to Junik was dangerous for military

21 convoys and they were frequently attacked.

22 Haradinaj himself, in minutes of his own headquarters in Glodjane,

23 in handwritten minutes dated the 13th of June, 1998, referred to a front

24 line situation beyond the highway up to Voksh and Pobergj. In the minutes

25 of his agenda held on the 21st of June, 1998, demonstrating his control,

Page 379

1 it read -- the minutes of the meeting read: "The meeting as all present

2 agreed aims to reach agreement on the systemisation, organisation, and

3 coordination of activities in these areas." The activities were the

4 planning operations against Serbia on a wider scale in the Dukagjin area,

5 a coordinated defence from Serbian offensive and attacks, deployment of

6 manpower, technical equipment in specific areas at a specific time,

7 division of operation subzones in the region, timely information in time

8 on the development of combat attacks and defence, joint meetings of the

9 operational HQ, a joint fight against the enemy's intelligence and

10 counter-intelligence, and a joint fight against evil-doers, criminals,

11 rule-breakers in the free zones, et cetera.

12 Showing the organised nature of Haradinaj's Dukagjin Zone staff

13 are the minutes of the 23rd of June, 1998, in which the staff of the

14 Dukagjin Zone are set out. The commander is Ramush Haradinaj. The deputy

15 commander is Lahi Brahimaj. Going down, you can see responsible for

16 sabotage and anti-terrorist activities is Togeri, the lieutenant, that's

17 Balaj.

18 MR. GUY-SMITH: Excuse me, Mr. Re, I believe you misspoke

19 yourself. It's not sabotage, it's subversive.

20 JUDGE ORIE: Perhaps we can have it reproduced on the screen once

21 again so that we can ...

22 MR. RE: Two translations.

23 JUDGE ORIE: Two translations.

24 MR. RE: One says "sabotage"; the other says "subversive."

25 MR. GUY-SMITH: I was reading the screen, Your Honour.

Page 380

1 MR. RE: I was reading mine.

2 JUDGE ORIE: But it seems now that you read something on the

3 screen which Mr. Re says he reads in a document. But is it of such

4 importance that we should deal with it at this moment?

5 MR. GUY-SMITH: Fine.

6 JUDGE ORIE: We can check it and let's proceed at this moment.


8 MR. RE: On the 24th of June, 1998, Haradinaj issued an order. It

9 was a very important order. The order was "to carry out a general

10 mobilisation of human and material resources" in his area. Part 2 of the

11 order says -- it was expressed to be "to properly prepare the population,

12 combatants, and military officers for the needs of war." Number 4 says:

13 "To take measures to prevent any activity that goes to the detriment of

14 our war." And this order is one which the Prosecution will be relying

15 upon in the course of the trial.

16 The measures which he specified or didn't set out there to prevent

17 any activity that goes to the detriment of our war goes to the heart of

18 the joint criminal enterprise charged, because the measures Haradinaj and

19 the people acting pursuant to the joint criminal enterprise took went far

20 beyond anything which could legitimately be used under the laws of war.

21 In this court, MUP officers will testify. The MUP had a slightly

22 different approach to the VJ. They will tell you of frequent attacks. A

23 senior officer in Serbian intelligence, who had access to the highest

24 level of surveillance of the accused and the KLA, will testify here that,

25 in their view, the real start of the armed uprising of the KLA was in

Page 381

1 January 1998; that attacks carried out by the KLA against the police, the

2 army, the Serbs, other non-Albanians, and loyal Albanians were carried out

3 on a daily basis; that the KLA carried out, during the indictment period,

4 synchronised attacks throughout the zone.

5 Another MUP officer will tell this Court that from spring 1998,

6 the KLA increased the number of ambushes and attacks on the MUP, the VJ,

7 and civilians; that the KLA started kidnapping, establishing check-points

8 and roadblocks. He will say that their crimes became more radical and the

9 police were especially at risk of being kidnapped and murdered. He will

10 tell you that the KLA opened fire on anything Serb, especially police

11 related, but they also attacked civilians.

12 The MUP will tell you -- the MUP officers will tell you that after

13 the -- after the murder of a Serbian police officer in March 1998, the

14 police could not enter Jablanica and areas under Haradinaj's control.

15 They will tell you the police would come under fire if they attempted to

16 enter these villages. He will tell you that the area around

17 Lake Radonjic, and in particular the area in which the bodies were found,

18 was a no-go area for the police.

19 Now, in determining whether an armed conflict exists, one of the

20 things the Trial Chamber is entitled to look at is Security Council

21 Resolutions. There was one such very important Security Council

22 Resolution; it was passed as early as 31st of March, 1998, and it refers

23 to both sides of the conflict. And the part I take the Court to now says:

24 "Condemning the use of excessive force by Serbian police forces against

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

Page 382

1 terrorism by the Kosovo Liberation Army or any other group or individual

2 and all external support for terrorist activity in Kosovo, including

3 finance ... and training."

4 The highly respected international humanitarian organisation Human

5 Rights Watch also documented violations of the rules of war by both sides

6 in the conflict during the indictment period. In its report,

7 Humanitarian Law Violations in Kosovo, published in October 1998 - and

8 this is page 3 in the summary - in a section called "Violations of the

9 Rules of War by the KLA," it said: "The Albanian insurgency, known as the

10 Kosovo Liberation Army/KLA, has also violated the laws of war by such

11 actions as the taking of civilian hostages and by summary executions.

12 Although on a lesser scale than the government abuses, these too are

13 violations of international standards and should be condemned."

14 The Prosecution will bring evidence from a senior Human Rights

15 Watch monitor who was on the ground in Kosovo and will give the Court

16 direct, first-hand evidence of what he saw and what he heard.

17 It was also at this time, in October 1998, when Human Rights Watch

18 was publishing its report on violations of international humanitarian law,

19 that the KLA issued its own communique in which it confirmed there had

20 been clashes from as early as February that year, in a communication, a

21 communique, issued on the 17th of October, entitled "UCK Sends Memorandum

22 to International Community," it said at the bottom -- at the very bottom

23 of the page: "After the Serbian massacres of the Albanian population in

24 Likoshan, Qirez, and Prekaz, in February this year, a bitter and unequal

25 war began in Kosovo between the Serbian military, police, and paramilitary

Page 383

1 forces on one hand and the Albanian people on the other."

2 Human Rights Watch, so concerned was it by what was occurring in

3 Kosovo by both sides that it issued a warning. At page 75 of its report

4 entitled "Violations of the Rules of War by the UCK," KLA," it warned the

5 KLA that: "The rules of internal armed conflict outlined in Common

6 Article 3 and Protocol II of the Geneva Conventions are binding on both

7 governments and armed insurgents. As such, the UCK is legally obliged to

8 respect the provisions of international humanitarian law, such as the

9 protection of non-combatants and the prohibition of hostage-taking."

10 It goes on making findings, based on its observations in the

11 ground, based on talking to people, seeing refugees, visiting areas under

12 attack by the KLA, the areas under siege, it said: "Despite these

13 obligations, the UCK," that's the KLA, "has committed violations of

14 international humanitarian law, including the taking of hostages and, by

15 their own apparent admission, summary executions. At least 138

16 individuals, mostly ethnic Serbs, but also ethnic Albanians and Roma, are

17 feared abducted by UCK."

18 And underneath that it said: "Some UCK operations were apparently

19 intended to drive ethnic Serbs out of their villages. Human Rights Watch

20 heard credible reports of ethnic Serbs being forced to leave the villages

21 of Jelovac, Kijevo, Gornji Ratis, Dasinovac, and others." Some of those

22 are relevant to this indictment. "In a number of cases elderly Serbs

23 refuse to leave, either too old to flee, or abandon their homes. Some of

24 these people are currently missing and feared dead."

25 Well, some of these people who were currently feared missing and

Page 384

1 feared dead then are the subject of this indictment.

2 They went on: "The UCK has attacked and seized some ethnic

3 Albanians and Roma whom it considered collaborators with the Yugoslav

4 government."

5 The concern of Human Rights Watch was that the UCK had issued a

6 warning on the 12th of July, 1998 - that's at page 76 of the report - in

7 which it had said: "First of all, all Serbian forces, whether the police,

8 the military, or armed civilians, are our enemy. From the start, we had

9 our own internal rules for our operations. These clearly laid down that

10 the UCK recognises the Geneva Conventions and the conventions governing

11 the conduct of war, even though it has not been offered the chance of

12 signing them as it would have done. We did not go in for kidnapping, but

13 even if some people have suffered, these have been more Albanian

14 collaborators than Serbian civilians."

15 As a result of that and what it saw, at page 11 of the report,

16 Human Rights Watch issued recommendations to the KLA, calling on it to

17 respect its obligations under international humanitarian law, to release

18 all civilians in detention, refrain from attacks on the civilian

19 population, and from using any detainees or civilians as hostages, and to

20 treat humanely Serbian soldiers or policemen in custody. It also

21 condemned hostage-taking and the ill-treatment of civilians. And it

22 recommended the UCK to impose a code of military conduct punishing

23 hostage-taking and breaches of international humanitarian law, and to

24 bring to -- and to make accountable any violators.

25 Now, I will emphasise the Limaj Trial Chamber did not have to make

Page 385

1 any findings about the existence of an armed conflict before the end of

2 May 1998. The joint criminal enterprise pleaded in that case was pleaded

3 to have come into existence before May 1998 and continued until at

4 least -- until August 1998. The joint criminal enterprise pleaded in the

5 Haradinaj case goes back earlier.

6 The one incident -- there's an incident which stands out from many

7 of the others pleaded in the indictment and referred to in our pre-trial

8 brief, which goes to the mens rea of the three accused and their actus

9 reus, the modus operandi of the KLA and the way they carried out their

10 joint criminal enterprise.

11 It concerned an incident on the 11th of August, 1998, in which two

12 European Community monitors -- monitors were abducted and held -- briefly

13 held by the KLA in Rznic, which was the village controlled by Balaj's

14 Black Eagles. As the Court is aware, the European Community sent monitors

15 into conflict zones during the wars in the Balkans. They were diplomatic

16 officials and they were supposed to travel with diplomatic immunity

17 throughout conflict areas to observe and to report and to monitor what was

18 going on between the two sides -- the warring sides.

19 On the 11th of August, two of them, with an Albanian interpreter

20 and a third passenger, drove into Rznic, which was then under the control

21 of Balaj. It was under shelling attack from Serbian forces. When they

22 reached Rznic, they were stopped by armed KLA soldiers who demanded to

23 know who they were and what they were doing there. The KLA soldiers

24 pointed their guns at these diplomats and shouted at them, "Where is the

25 international community?" In keeping with the modus operandi, they

Page 386

1 accused one of the monitors of being a Serbian spy. They ordered them to

2 leave. But before they could leave, Balaj -- Idriz Balaj arrived with two

3 other soldiers in a jeep and ordered the monitors to follow them to a

4 house in Rznic, which was the local KLA headquarters.

5 Balaj regarded the Albanian interpreter as a collaborator because

6 he was with the person who was supposed to be a Serbian spy, that is, an

7 ECMM monitor, and in front of these diplomats, these monitors, Balaj

8 kicked and punched the interpreter, calling him a traitor and telling him

9 he was going to kill him while pointing a pistol at him. Balaj took the

10 monitors and the Albanians and the interpreter upstairs and interrogated

11 them, again threatening to kill the interpreter. About ten minutes later

12 Haradinaj himself arrived, and he, Haradinaj, continued the interrogation

13 of the three in the upstairs room in KLA headquarters. Haradinaj was

14 speaking in fluent English and fluent French to them. Haradinaj

15 eventually took them down to the jeep. Haradinaj personally searched the

16 diplomats' vehicle, diplomatic property, but let them leave.

17 But importantly, during the interrogation, Haradinaj told the

18 monitors that he, Haradinaj, was in charge of the area and no one got out

19 of the area without his knowledge or approval.

20 One of the monitors will testify in this court. He will describe

21 what happened. He will describe the way the KLA members there reacted

22 and -- reacted to and respected Haradinaj. He will describe how they

23 saluted Haradinaj with the Albanian clenched-fist salute. He will show --

24 he will testify that Haradinaj was clearly in charge.

25 He will also say, he will tell the Court, how he recognised

Page 387

1 Brahimaj as one of those present during the detention in the compound. He

2 will describe Haradinaj as a clever and controlled person whose orders

3 were obeyed straight away, without discussion. He will describe Haradinaj

4 as a man who had total control of the KLA members at the compound, and

5 that total control extended to the liberty or otherwise of the KLA --

6 sorry, of the ECMM monitors.

7 I note the time. It's a quarter to 4.00. Is that an appropriate

8 time?

9 JUDGE ORIE: Yes, I was just about to invite you to find a

10 suitable moment within the next five minutes, but if this is a suitable

11 moment for you --

12 MR. RE: Yes, it is.

13 JUDGE ORIE: -- then, Mr. Re, we'll adjourn for 25 minutes. We'll

14 re-start at ten minutes past 4.00. And then you have the next session to

15 complete your opening statement.

16 --- Recess taken at 3.45 p.m.

17 --- On resuming at 4.12 p.m.

18 JUDGE ORIE: Mr. Re, before I give you an opportunity to continue,

19 one very practical matter. It was announced that the first witness will

20 not be called tomorrow, at least the first witness on the list. Will this

21 witness be replaced by any other witness, or is it just that we are

22 without witnesses tomorrow?

23 MR. RE: We'd certainly like to replace that witness by another

24 one. It's not so much replacement; it's a switching.

25 JUDGE ORIE: Yes, okay, but do we know which one? I mean, it's

Page 388

1 nice --

2 MR. RE: I can tell you -- just hang on for a moment.

3 [Prosecution counsel confer].

4 JUDGE ORIE: Think about number 2 on the list. Let's be careful

5 not to disclose any names of protected witnesses where no protective

6 measures have been asked for the trial stage. But what could we expect,

7 and what could the Defence expect, and have you discussed it with them?

8 MR. EMMERSON: The short point is we are, I'm afraid to say,

9 completely in the dark.

10 JUDGE ORIE: Okay. Well, let's then try to see whether Mr. Re

11 could enlighten us, whether this would be a solution. I do understand

12 that you reserve all your rights to say, well, witness X, Y, or Z, for

13 which we are totally unprepared, for which no material was disclosed, is

14 up. So -- but let's first try and see what Mr. Re has on his mind.

15 MR. RE: The Prosecution wishes to switch witness 1 with witness

16 2. The Defence have put on a motion in relation to the evidence of both,

17 asking to exclude.


19 MR. RE: Some difficulties arose in the sense of witness 1, that

20 there is possibly further material which we have to resolve with the

21 Defence.

22 JUDGE ORIE: Yes, that's understood. So you would like to have

23 the witness who was scheduled for Wednesday to be called tomorrow.

24 MR. RE: Yes.

25 JUDGE ORIE: Yes. Well, that was unclear for everyone.

Page 389

1 Having -- at least now knowing what Mr. Re has on his mind, is

2 that ...

3 MR. EMMERSON: I would have absolutely no difficulty with the

4 witness who is currently witness 2 --


6 MR. EMMERSON: -- being called in chief tomorrow.


8 MR. EMMERSON: I indicated last week that some 800-odd pages of

9 material was served directly relevant to that witness in the middle of

10 last week, and I said I wasn't sure at that stage how much, if any of it,

11 would be directly relevant. The short answer is it includes a 300-page

12 report which is completely irrelevant because it is outside the indictment

13 period. It includes translations of five notebooks, some of which are

14 very relevant and are extremely dense, and which we are working through as

15 we speak. It will be difficult for us to be in a position to

16 cross-examine tomorrow; that's the short point.

17 JUDGE ORIE: Okay.

18 MR. EMMERSON: The only other matter is that Mr. Re has indicated

19 in respect of witness 1 that there may well, indeed, be a large number, or

20 a number at least, of notebooks produced by that witness which are

21 currently in Serbian, and so far as that witness is concerned, it's not

22 inconceivable that the contents of those notebooks could be relevant to

23 the cross-examination of witness 2.

24 JUDGE ORIE: Mr. Emmerson, I don't like to intervene in the

25 Prosecution's opening statement, so I wanted to limit it --

Page 390

1 MR. EMMERSON: Yes, I'm sorry.

2 JUDGE ORIE: -- to the bare necessities at this moment.

3 MR. EMMERSON: I'm sorry.

4 JUDGE ORIE: And the issue you're raising now is, although very

5 relevant, not perhaps of such urgency.

6 MR. EMMERSON: I'm sorry.

7 JUDGE ORIE: May I just ask the other Defence teams whether there

8 are objections again with witness number 2 on the list, scheduled for

9 Wednesday, to start examination -- to start giving testimony in-chief

10 tomorrow?



13 MR. GUY-SMITH: And I share Mr. Emmerson's concerns.


15 MR. HARVEY: My reaction is exactly the same, Your Honours.


17 [Trial Chamber confers]

18 JUDGE ORIE: Then, of course there's a motion pending on the first

19 and the second witness, but of course the Chamber will consider what to do

20 with this motion. We have not received any response, Mr. Re. I don't

21 know whether -- yes, we had a very brief response, didn't we?

22 MR. RE: To the motion which was filed this morning?

23 JUDGE ORIE: Yes. No. No, we have no --

24 MR. RE: No, there's no response, Your Honour.

25 JUDGE ORIE: No, but I think that the Chamber was informed that

Page 391

1 there had been some exchange of views on whether this -- and I think from

2 that exchange of views, it appeared that you considered --

3 MR. EMMERSON: We've appended to the motion, at annex A, letters

4 written by the Prosecution on the 2nd and 3rd of March setting out those

5 passages in the statements they intended to adduce, and repeating a short

6 statement from the Prosecution as to why they say the material is

7 admissible. So you have the Prosecution's outline position.

8 JUDGE ORIE: Yes. That's -- that must have been on my mind when

9 I -- so, the Chamber will consider tomorrow morning what to do with the

10 motion and whether it will have any effect on the start of the examination

11 of these witnesses. But for the time being, expect that the Prosecution,

12 despite its original list, will call the witness which was scheduled as

13 number 2 and scheduled for Wednesday to be called tomorrow; and also

14 expect under the present circumstances that Defence will not start its

15 cross-examination any earlier than Wednesday.

16 Then, Mr. Re, I'd like to keep it to the bare minimum, but this

17 was important also for the people who has to be here tomorrow, et cetera,

18 for very practical purposes. So you may now proceed with the remainder of

19 your opening statement, which you're supposed to finish in this session.

20 MR. RE: To assist the Trial Chamber, we've prepared two large

21 charts. They're displayed electronically and blown up in a very large

22 proportion, and they will be available throughout the trial to assist the

23 Trial Chamber. The first one, on the top, is an overhead, high-resolution

24 satellite photograph showing the lake and all the relevant areas in the

25 indictment. Underneath that is a photograph of -- on the ground, just

Page 392

1 underneath that, is a photograph showing the plotting where all the bodies

2 were found alongside the lake.

3 To assist the Trial Chamber, I just want to, first of all, blow up

4 the portion on the satellite photograph to show you where each of the

5 things you'll be hearing about in the trial are.

6 You can see the Haradinaj house, the village of Glodjane, Rznic,

7 the Ekonomija farm, the concrete canal, Dasinovac, and so on.

8 You will also see at the scale -- if I can just move over for one

9 second. There's a scale of 10 kilometres from left to about one-third of

10 the way through which shows the Trial Chamber the scale we're talking

11 about.

12 To make it even more visually interesting, we have a display, a

13 photographic display, of the various sites which you'll be hearing about

14 and which I'll refer soon when addressing you on the evidence in relation

15 to the bodies.

16 What you see on the screen at the moment is basically an overhead

17 map of the Dukagjin Zone, with Lake Radonjic in the bottom centre. If you

18 can start with the one labeled A.

19 The first one you can see is on the village of Rznic, and that is

20 the junction on the road to Glodjane. The road to Glodjane is the road on

21 the right, which goes off towards the right, and you'll see a mosque above

22 the top. That is in Rznic and that is where the KLA -- sorry, where the

23 ECMM monitor will tell the Court that they were stopped. There was a KLA

24 check-point right in the middle of that junction.

25 The next one, if we go to B, is an overhead satellite shot showing

Page 393

1 the Ekonomija farm in the top right, the KLA headquarters -- not yet, go

2 back. In the top right is the Ekonomija farm, and you can see the canal

3 which is very close to it. Underneath that, at the bottom of that road,

4 is the KLA headquarters, as they then there.

5 Just go back.

6 At the bottom -- the bottom box, which was there a second ago, is

7 the Haradinaj house, and that's the village of Glodjane. First of all,

8 I'll show you the Haradinaj house. If we go back, we'll next go to the

9 Ekonomija farm -- sorry, the KLA headquarters. That's right. That is as

10 they are now. They didn't look like that in 1998.

11 The next one is the Ekonomija farm, the ruins of the

12 Ekonomija farm.

13 Go in.

14 If you look at the photo which is now on the screen, you'll see

15 there's a road, and the road which -- go back. The road which intersects

16 the two farm buildings goes directly towards the village of Rznic. The

17 distance is about between 1 and 2 kilometres, and to the right of that

18 you'll see a canyon on the canal.

19 Okay. Go to the road.

20 And that's a shot showing you directly down the road, panning

21 around, taken in the middle of the Ekonomija farm.

22 Okay. Thank you.

23 I'll now take you to -- I'll now take you to the canal. You can

24 see two highlighted areas. Go to that one, yes. Highlight that one.

25 Again, that shows the road. Go back. And that shows the canal area and

Page 394

1 that shows the concrete -- the concrete canal area, looking in the

2 direction of the lake, of the canal flowing from Rznic village.

3 Go back. Go back.

4 The next one I take you to is of Jablanica. There are two --

5 there's an overhead shot of Jablanica. The photo I show is the actual

6 village of Jablanica. It's a panned shot which reveals at the bottom

7 right there - stop - the Brahimaj house and KLA headquarters. Just go

8 back a little bit. And if you just stop it here. If you look at the top

9 of the photograph, in that direction you'll see the Jablanica -- where the

10 detention centre was.

11 Go back. Next one.

12 The next one shows a shot of the Jablanica detention centre. This

13 is the building as it looked last year. You can see it panning around,

14 and we're coming to a gate. Just stop it there. The gate shows the road;

15 to the left of the road, it goes down to Jablanica, about 1 kilometre or

16 so away.

17 Keep panning. Stop there.

18 You can see on the shot in front of you at the moment, that's the

19 door to the ruined Jablanica detention centre - pan around - that's the

20 building as it looks now, which was the offices, and underneath is the

21 basement where the prisoners were kept. And this shows it - photographs

22 taken in August of last year - containing water, as witnesses will

23 testify, similar to the condition of it in 1998.

24 I want to take the Trial Chamber in some detail in relation to the

25 bodies which were found along the canal, and the importance of taking the

Page 395

1 Chamber to this is to show the links and the patterns between those who

2 were last seen in KLA custody and those whose bodies were found,

3 identified and unidentified, mingled amongst the bodies of those last seen

4 in KLA custody.

5 If we could just go back to the overhead satellite photograph, you

6 can see on the photograph in relation to where Haradinaj's house is and

7 the canal, you can see the road -- you can see the distance, the short

8 distance, between Haradinaj's house, the concrete canal, the Ekonomija

9 farm, and Rznic. You can see the dirt road which leads from Rznic to the

10 canal where the bodies were found.

11 Now, the important point to drive home is that this area was under

12 the control of the KLA when the victims disappeared.

13 The next photograph I'll take you to is the photograph on which we

14 have plotted where the bodies were found. That's a large -- that's the

15 large photograph which is in the courtroom at the moment.

16 JUDGE ORIE: Mr. Re, it certainly would assist me if you'd first

17 point at the map what place you'll take us to, and then show what the --

18 yes, we had it so splendidly on our screen.

19 MR. RE: All right. The area I'm taking Your Honours to is the

20 canal area between Rznic and where it's labeled "Concrete Canal" and the

21 Ekonomija farm.


23 MR. RE: My finger is on the map here.


25 MR. RE: And this is the area, where my hands are, which I'm

Page 396

1 demonstrating.


3 MR. RE: And it's a shot taken from the Rznic overhead looking

4 towards the canal, where the concrete part is, going down the cascades to

5 the natural area, the canyons, to what's called the delta area.

6 JUDGE ORIE: Yes. And at the distance, we see the lake. Is that

7 a lake?

8 MR. RE: That's the lake. The distance --

9 JUDGE ORIE: But on the photograph.

10 MR. RE: The --

11 JUDGE ORIE: No, the -- the photograph down. At the very top of

12 it, is that --

13 MR. RE: Yes, that's the lake.

14 JUDGE ORIE: That's the lake. Okay. That's fine.

15 MR. RE: Can you just enlarge that.

16 Now, on this map we have -- we've plotted where the bodies were

17 found and either the names of the victims where known or an R number,

18 which is the number the Serbian authorities gave them in 1998 during the

19 exhumations.

20 What I want to tell the Trial Chamber about now is the story of

21 some of the bodies and how they got to be where they are, or where they

22 were found, on that map.

23 The first one I'm going to tell you about is that of Zenun Gashi,

24 Misin Berisha, Sali Berisha, and 14-year-old Xhevat Berisha. That's

25 counts 19 and 20 of the indictment.

Page 397

1 Now, Zenun Gashi was a Roma police officer on sick-leave since

2 1997 and recuperating from a heart attack. From his position, you can

3 infer that he was not, and there will be evidence of this, a KLA

4 sympathiser. He lived in Kosuric.

5 On the 1st of August, 1998, KLA soldiers came to his home and

6 unlawfully abducted him. They took him to the KLA headquarters in Rznic.

7 He was detained there. Two other Roma people were there: Misin Berisha

8 and his son Sali Berisha. The three were taken from Balaj's Rznic KLA

9 headquarters to the site where their bodies were found. On about the 11th

10 of September, 1998, the three bodies were found metres apart on the

11 ground, next to the concrete wall.

12 If you can just go into the shot of where their bodies were found.

13 Each had multiple injuries - not that one, the photograph - and gun-shot

14 wounds. Around Sali Berisha's neck was a mountain rope made into a

15 noose. There was 2.5 metres of rusty barbed wire next to the bodies, and

16 on one end of the bodies -- I'm sorry, and one end of the wire was tied

17 into a noose. Long black hair and putrified soft tissue was caught in the

18 barbs.

19 Now, if you can see where the bodies were found, it's next to a

20 site which I will show to you a little bit later, which was the -- which

21 was an execution wall.

22 You can see from a photograph of the skull of body R4,

23 Zenun Gashi, if you look at the top photograph, you can see from the

24 photograph there - that's just how his body was found - that he was shot

25 through the head. There's a stick which shows the bullet trajectory right

Page 398

1 through.

2 Xhevat Berisha, who was the 14-year-old son of Misin Berisha and

3 the brother of Sali Berisha, went missing a little earlier in June or July

4 1998. Now, his body was found close by, about half a metre away from that

5 of his father and his brother, Zenun Gashi near the execution wall. His

6 skull, likewise, contained a bullet wound and his arms and legs had

7 multiple fractures. An autopsy conducted in 19 -- in 2003, by

8 international forensic experts, determined the cause of death to be a

9 gun-shot wound to his head. His body contained multiple gun-shot wounds.

10 The Defence does not dispute the identity of that particular body.

11 Now, I want to take you to one of the photographs - it will come

12 up in a moment - which shows the position of the bodies when they were --

13 when they were actually found. It flashed across the screen a moment ago

14 and it shows the Serbian authorities in the process of -- in the process

15 of exhuming the bodies.

16 The bodies each were given markers. The markers you can see there

17 on the screen. Kemal Gashi's body was marked 2; Misin Berisha marked 3;

18 Zenun Gashi marked 4; and 14-year-old Xhevat Gashi marked 5. You can see

19 where the people are. The person wearing the light blue and the gloves,

20 just to the left of that was a wall which contained bullet-holes. We'll

21 show you a little bit later a closer and better photograph of that.

22 There was also an unidentified body, R1, which was underneath a

23 body which is number 11 there, marked 11. Now, 11 - and this is

24 important - was the mother of witness 4 who I will come to a little bit

25 later. Body R12, which is also on that photograph, was discovered

Page 399

1 underneath the body of witness number 4.

2 The next one I take you to is Idriz Hoti, which is counts 21 and

3 22. He was a 64-year-old Kosovar Albanian and an opposition party member,

4 a member of the LDK. He disappeared in June or July of 1998 on his way to

5 Jablanica, intending to join the KLA. His body was found underneath that

6 of Misin Berisha you just saw, who was last seen at the detention in

7 Jablanica in August of 1998, both were found at the execution wall. In

8 other words, the body of someone who disappeared in -- or who was last

9 seen in June or July 1998 was found underneath that of someone who was

10 last seen actually in KLA custody in August of 1998.

11 Now, next to his body, that's Hoti's, was a piece of black

12 electrical cable similar to that found in the stables of the

13 Ekonomija farm, which we have shown on the e-court. A 2003 autopsy by

14 Professor Hoff-Olsen found a gun-shot wound to his head. The professor

15 concluded that the probable cause of death was the gun-shot injury to the

16 head and face. Likewise, for this body, the Defence does not dispute the

17 body's identity.

18 Counts 21 and 22, Velizar Stosic and Zdravko Radunovic.

19 Velizar Stosic was a Serb who was last seen alive in July 1998 when he

20 left his home in Belo Polje. His body, too, was found near the concrete

21 wall. His skull, like others, contained wounds to both sides and his body

22 contained multiple -- multiple fractures. A 2005 autopsy by international

23 experts found the cause of death to him to be multiple gun-shot wounds to

24 the head and legs. A tight noose made of a 1-centimetre-thick mountain

25 rope was around his neck. A rifle projectile was next to his body.

Page 400

1 Now, the photograph which I'm just about to show, shows -- the

2 middle photograph, shows a skull with a bullet wound to his head. Now,

3 his body was found co-mingled with that of Zdravko Radunovic. Radunovic

4 disappeared on the 18th of July, 1998. The significance of this is that

5 Radunovic's wife will testify that the police told her that her husband

6 was kidnapped by the KLA in Dujak village. His skull, likewise, contained

7 a bullet wound. So we have two bodies together, both with one bullet

8 wounds to the head and one of them of a person who was kidnapped by the

9 KLA in July 1998. The Defence does not dispute the identity of either of

10 these bodies.

11 The next one is Pal Krasniqi, counts 31 and 32. Next to

12 Radunovic's body was that of Pal Krasniqi. The significance of this is

13 that he was last seen in the Jablanica KLA prison. Krasniqi was a

14 Catholic Kosovar Albanian. On the 10th of July, 1998, he went to KLA

15 headquarters in Jablanica - that's the headquarters run by the accused

16 Brahimaj - to join up. Within days, however, a familiar accusation was

17 made against him. He was denounced as a Serb spy for allegedly having a

18 relationship with either a Serb or a Roma woman. The result of that

19 information was that he was detained in the KLA custody at the Jablanica

20 detention centre, the prison I showed you earlier. There he was beaten

21 daily and brutalised with a baseball bat. His body, which was found in

22 the picture which is shown on the screen now, contained multiple fractures

23 to his arms which is consistent with the story of the beating with the

24 baseball bat. Fluoroscopy examination in 2003 revealed a bullet core and

25 its remains, there were gun-shot wounds on his head, trunk, and upper

Page 401

1 limbs. The cause of death was determined by international experts in 2003

2 to be multiple gun-shot wounds. The Defence, likewise, does not dispute

3 that that is his body.

4 The significance of my including him now is that he was a person

5 last seen in custody of the KLA in Brahimaj's prison, was found next to

6 the body of Radunovic, also said to have been kidnapped by the KLA, next

7 to the body co-mingled of two people -- of another person who just

8 disappeared.

9 The next one is counts 21 and 22, and that is Nurije and

10 Istref Krasniqi. They were an Albanian couple living in Turjak. A

11 witness will testify that on about the 12th of July, 1998, KLA soldiers

12 came to their home, and that a KLA commander ordered them to be taken to

13 the KLA's headquarters in Glodjane. That was the accused Haradinaj's

14 headquarters. The possible reason for this is that the couple had a good

15 relationship with their Montenegrin neighbour -- with a Montenegrin

16 neighbour which may have made them a collaborator in the eyes of the KLA.

17 Now, their bodies were found together on the 12th of September,

18 1998, near the wall which -- near the execution wall. I'm just going to

19 play you a very short portion of video taken by the Serb authorities on

20 the 12th of September, 1998, which shows a close-up of the bullet-holes in

21 the wall on the canal. As you can see, they're marked in blue.

22 [Videotape played].

23 MR. RE: And number 14 and number 15 are Nurije and

24 Istref Krasniqi's bodies. That's where they were found; you can see them

25 in the video next to the shoes.

Page 402

1 Their bodies were found together on the 12th of September, the day

2 the video was taken, right next to the wall containing the bullet-holes.

3 Nurija's skull had fractures consistent with gun-shot wounds and his

4 wife's body -- sorry, Istref's body was found close to his wife's.

5 International forensic experts later determined the cause of death to be

6 multiple gun-shot wounds to his chest.

7 The next ones I take you to are two elderly Serb sisters, Vukosava

8 Markovic and Darinka Markovic, that's counts 21 and 22. Vukosava Markovic

9 was born in 1937 and Darinka Markovic was born in 1932. They lived in

10 Gornji Ratis, which as you can see on the map is a very, very short

11 distance from Rznic, Balaj's headquarters; in Glodjane, Haradinaj's

12 headquarters. At the time of the disappearance between April and

13 September 1998, they were the last remaining Serbs living in that

14 particular village. Their bodies were found together next to the concrete

15 canal wall, next to the execution site. The Defence disputes the identity

16 of their bodies.

17 Another body found next to the execution wall is that of

18 Kemajl Gashi in counts 31 and 32. He was a Kosovo Albanian from Pec.

19 Another familiar accusation was leveled against him. His son Medin joined

20 the KLA in Baran in the summer of 1998. There, a KLA commander accused

21 Kemajl Gashi, that's the older Gashi, of being a "Serbian spy." His son,

22 who was in the -- sorry, who in the KLA, Baran headquarters, heard his

23 father screaming from pain in the next room. He then saw his father the

24 next day at the Baran headquarters. The significance of this is that

25 Kemajl Gashi's body was found on the 11th of September, 1998, on the

Page 403

1 ground next to the execution wall near that of Misin Berisha. A 2003

2 autopsy, again by international experts, found fractures to his skull and

3 multiple fractures to his body, which of course are consistent with the

4 screams of pain which his son heard coming from the room. Gun-shot wounds

5 to his pelvis may have caused his death. The Defence does not dispute

6 that this is his body.

7 Another one I take you to is the family of witness 4. From April

8 1998, armed KLA soldiers began harassing the family of witness 4 who lived

9 in Donji Ratis. The KLA soldiers broke into their house; they searched

10 for weapons; they threatened him. The accused Balaj himself personally

11 participated often in these attacks. In about April or May 1998, KLA

12 soldiers took witness 4's sister to the KLA headquarters - that's Balaj's

13 headquarters - in Rznic. Balaj, in fact, escorted her home twice.

14 However, like many others who went there, she has not been seen since.

15 She hasn't been seen since the last time she returned to Balaj's

16 headquarters. She's presumed dead, murdered by the KLA.

17 Between the 10th and the 14th of August, 1998, Balaj and his KLA

18 soldiers returned to witness 4's house and interrogated her mother. They

19 took her away. A month later, on about the 11th of September, 1998, the

20 mother's body was found next to the execution wall, next to an

21 unidentified body. You can see on the photograph there how it was found

22 next to the execution wall. That's the one that says "R11, mother of

23 witness number 4." Professor Hoff -- sorry, it was found underneath an

24 unidentified body. The unidentified body was subsequently labeled R1.

25 The significance of this is that in 2003, an international

Page 404

1 forensic expert, Professor Hoff-Olsen, determined the cause of death to

2 the unidentified body R1 as a gun-shot injury to the head. Witness 4's

3 mother, found next to R1, who died from gun-shot wounds to the head,

4 contained multiple gun-shot wounds to her pelvis. Dr. Marek Gasior, an

5 international forensic expert, determined that the gun-shot wounds had

6 caused witness 4's mother's death. The Defence doesn't contest that that

7 body is that of witness 4's mother.

8 Now, witness 4 had another sister, and sometime in late summer or

9 early autumn 1998, Balaj and other KLA soldiers came to their house again

10 in Donji Ratis. They kicked in the doors; they pointed rifles at the

11 family, fired shots and abducted the second sister. You remember the

12 first sister has disappeared without trace, and the mother was found dead

13 next to the canal.

14 A few days later, the body of the second sister was found in a

15 forest about 20 kilometres from Donji Ratis. Her body had a bullet wound

16 behind her ear, and her throat had been cut.

17 Dr. Gasior, the international expert, in 2005, determined her

18 cause of death to be multiple gun-shot wounds. The Defence does not

19 contest that body found in the forest was witness 4's sister.

20 About 13 bodies were found floating in the canal in the area below

21 the concrete cascade shown in the photograph. In a moment on the screen,

22 you will see the lower area of the canal which shows where -- which shows

23 where other bodies were found.

24 A mechanical engineer who worked on the water-supply to the lake

25 will come to these chambers, and he will testify that the bodies could not

Page 405

1 have entered the canal from outside KLA-controlled territory. He will

2 tell the Court how the canal was built in 1995. The canal contains about

3 35 and 40, or so, cascades. The water flows from an intake point in the

4 village of Gornji, or upper Luka, which is several kilometres from Rznic.

5 But the water passes through a series of steel grills, each of which is

6 only about 5 centimetres wide. It also has large wooden gates and two

7 sets of wooden filters, which are designed to stop things floating down

8 the canal and into the lake. An object greater than 5 centimetres just

9 could not have passed through the grills into the canal.

10 In addition, the area in Gornji Luka was under KLA control between

11 March and September 1998. But the area closest to where the bodies were

12 found, between KLA-controlled Rznic and the execution site, in the

13 relevant time of 1998 - can you please show that - was full of debris,

14 large trees, sediment, old cars and rubbish. Just show the -- just come

15 back. Right down the bottom, down here towards -- the area which is shown

16 in the picture now, which is the very bottom of the picture, going all the

17 way back towards Rznic, contain debris, large trees, sediment, old cars,

18 and rubbish. And bodies just could not have floated from any other area

19 to where they were found. They could only have been put in the canal from

20 the point well inside the heart of KLA-controlled territory.

21 As an example of the KLA control over that territory, one Serb

22 witness will testify in the chamber that in late April 1998, he was

23 arrested at the intersection of the road to Glodjane by about five armed

24 KLA soldiers, who were concealing themselves under the concrete canal

25 passing by the road.

Page 406

1 The next ones I take you to are counts 15 and 16, and that's

2 Isuf Hoxha and Hajrullah Gashi. On about the 20th of July, 1998, they --

3 Isuf Hoxha, a Kosovar Albanian, and Hajrullah Gashi, a Kosovar Albanian -

4 who made the mistake of being married to a Serb - were travelling on a bus

5 from Djakovica to Pristina. On the road leading to Malisevo, which is

6 close to Dulje, Haradinaj himself, that is the accused Haradinaj, and

7 other KLA members, came onto the bus. Haradinaj said that he was looking

8 for Hajrullah Gashi and Isuf Hoxha. Haradinaj and the KLA soldiers took

9 the two men off the bus and put them in a black Golf, without licence

10 plates, and drove them towards Glodjane.

11 These two were last seen together in Haradinaj's custody on the

12 way to his headquarters in Glodjane. Their bodies were found on the 12th

13 of September, 1992, about 670 metres or so downstream from the end of the

14 concrete wall near the water.

15 The photograph I show you on the screen at the moment shows you

16 the body of Hajrullah Gashi, as it was found by the Serbian authorities.

17 The next one I take you to is that of Kujtim Imeraj, which is

18 counts 21 and 22. About 10 metres from those bodies was the body of

19 Kujtim Imeraj, who on the 4th of July, 1998, had been abducted by KLA

20 soldiers under the command of Dervic Ukalj [phoen] who had come to his

21 house in Selo. Again, a familiar accusation was levelled against him. He

22 was accused of collaborating with the Serbs. The result of that was he

23 was abducted, murdered, and his body was dumped by the canal.

24 The next one is in counts 17 and 18. That's Illira Frrokaj.

25 Illira Frrokaj was a Kosovar Albanian Catholic. She was stopped at a KLA

Page 407

1 check-point in Glodjane by Balaj himself and other KLA members in August

2 1998. Her body was found near her car, a red Opel, which the KLA had

3 taken. The body was found burnt out and floating upside down in the

4 canal. Her husband, Tush Frrokaj, who was with her when she was stopped

5 at the check-point, has never been seen again. His body has not been

6 recovered. Her body was found in the water a little way downstream from

7 the KLA execution site. The body could only have been put there by the

8 KLA in the area it controlled. Another unidentified body labeled R18I

9 was found with her body in that canal.

10 Another Serb couple, Milka and Milovan Vlahovic, that's counts 9

11 and 10 of the indictment, were a Serb couple living in Gornji Ratis. They

12 remained -- they were elderly and they remained living there after the

13 expulsion of -- or fleeing of all the other Serbs from the village in

14 April 1998. Milka Vlahovic was born in 1933, and Milovan Vlahovic was

15 born in 1935. They disappeared from the village in April 1998. In

16 September 1998, Serb divers found part of Milovan's body in a riverlet in

17 the natural part of the canal. They found some bones, which belonged to

18 him, and a shoe. The degree of decomposition on the body was consistent

19 with his death occurring between April and August 1998. The Defence does

20 not dispute that it was -- the identity of the body. His wife, who has

21 not been seen since 1998, her body has never been recovered.

22 The Human Rights Watch report, which I referred to earlier,

23 actually referred to the disappearance of this particular couple. The

24 report said, and it's on the screen, in relation to Dar and Vukosava

25 Markovic, Milka and Milovan Vlahovic: "According to both the Humanitarian

Page 408

1 Law Centre and Amnesty International, most ethnic Serbs fled their homes

2 in Gornji Ratis on April 21 when the KLA took control of the village. Dar

3 was 69; Vukosava was 65; and Milka was 62, and Milovan, 60, Vlahovic

4 decided to stay, and their whereabouts are currently unknown."

5 Well, as you've just heard, the update on the whereabouts of one

6 of them is that the body was recovered in October -- in September 1998.

7 Two other bodies were found. The body of Milka was the one that

8 was recovered; the body of Milovan has not been seen since. I correct

9 myself.

10 Two bodies were found in a shallow grave at the junction of the

11 roads leading to Dasinovac and Ratis. These were the bodies of Slobodan

12 Radosevic and Milos Radunovic, two Serbs living in Dasinovac. What

13 happened to them?

14 What happened to them was that in the last week of April 1998,

15 about ten KLA soldiers came to their house. Gunfire was heard and the

16 soldiers rapidly left towards Decan. Their bodies were recovered in

17 September 1998, and the photograph, which is about to be displayed, shows

18 the bodies as they were found by the side of the road, with personal

19 possessions. And forensic examination revealed that Slobodan Radosevic's

20 skull contained a hole consistent with a bullet wound.

21 Their disappearances, too, were noted in the Human Rights Watch

22 report, which I referred to earlier. At page 83 of that report, it says:

23 "Slobodan, 64, Milica 59, and Milos Radosevic, were the only ethnic Serbs

24 to stay behind in Dasinovac when the UCK took control on April the 22nd."

25 On September the 16 -- I'm sorry, I'll move to another one.

Page 409

1 Disappearances of people were presumed murdered, I take you to

2 counts 23 and 24, which is that of Ivan Zaric, Agron Berisha and

3 Burim Bejta.

4 KLA soldiers abducted Ivan Zaric, a Serb; and Agron; and Burim

5 Bejta while they were at the Granica mill. They were taken to Jablanica

6 KLA headquarters and beaten. Brahimaj reported by radio to Haradinaj that

7 the three had been captured. Haradinaj and Balaj then appeared at the

8 headquarters, but the beatings conditioned. Later, while the men were

9 serving food to the KLA commanders, including Haradinaj, Balaj himself

10 mutilated the Serb boy's ear by severing it with a knife. Haradinaj sat

11 there and continued to eat his dinner. Brahimaj said that "papers for

12 Drenica would be issued." This was a euphemism for execution. Balaj led

13 the three away. You will hear testimony that the three have never been

14 seen again. They were last seen alive in the custody of the three

15 accused. They are presumed murdered in KLA custody. That is the only

16 inference available from a combination of all the evidence you will hear.

17 Human Rights Watch reported on this incident in August 1998 in its

18 report. It said: "Abductions of Roma. According to the Humanitarian Law

19 Centre and the newspaper "Blic," Burim Bejta and Agron Berisha, both Roma;

20 and Ivan Zaric, an ethnic Serb; left Dolac on May the 20th for the village

21 of Grabanica. As of August 1998, their whereabouts were still unknown."

22 There is no update on their whereabouts and the information about

23 what has happened to them has come from witnesses that the Prosecution has

24 interviewed since the Human Rights Watch report was issued.

25 The finding of these bodies near the canal execution wall was no

Page 410

1 coincidence. Earlier I referred to ECMM monitors who went to the canal --

2 ECM monitors who were detained by Balaj and the KLA and released by

3 Haradinaj in August 1998. They went to the canal area on the 18th of

4 September, 1998. An independent monitor, who was an officer in an EU

5 member state army, he's the one who was accused of being a Serbian spy,

6 will testify in this court. He will testify that when he went there, "at

7 the channel walls, one could clearly see the marks of bullets which had

8 obviously killed these people." He was there during the exhumation of the

9 bodies. If you see the clip of the video, you can see the bodies being

10 recovered and you can see the bullet-holes just above the shovel.

11 [Videotape played]

12 MR. RE: What you're watching now at the moment is a video taken

13 by the Serbs -- Serbian authorities during the exhumation of the bodies in

14 September 1998.

15 The monitors saw the bodies; they were in an advanced stage of

16 putrefaction. To that monitor who had been in the area and had been

17 observing the clashes between the KLA and the MUP and the Serbian

18 military, and who was aware who controlled what territory and when, it was

19 clear to him that they had all been killed when the KLA controlled the

20 area. He will testify in this court that there was no single Serb

21 presence in the area until the Serbian attack, and that was at the end of

22 August/beginning of September 1998. And that is entirely consistent with

23 the evidence I have just led you to in relation to when people were last

24 seen alive and when their bodies were recovered.

25 Several hundred metres from these graves, as you can see on the

Page 411

1 large photograph, the large overhead photograph, was the Black Eagles'

2 training ground at the Ekonomija farm. It was completely obvious -- it

3 was completely obvious to the Black Eagles -- to the monitors, the ones

4 who had been held hostage the previous month by the KLA, that the KLA

5 controlled this area when the bodies were put there. And you can see on

6 the map, which I've just shown in e-court, the Ekonomija farm is a very

7 short distance from -- in the middle between the concrete canal where the

8 bodies were found and the Glodjane headquarters and Haradinaj's house.

9 And you can see the road leading from the KLA headquarters to the

10 Ekonomija farm and the concrete canal.

11 Skender Kuqi, counts 31 and 32, was a person whose body was not

12 found at the execution site, nor at any location near the Lake Radonjic.

13 He was a person who was murdered in KLA custody and died in hospital. He

14 was a Kosovar Albanian from Zahac. Like many others, he was abducted by

15 KLA soldiers. He was abducted around the 11th of July, 1998, and taken to

16 the KLA headquarters in Jablanica. There, while in detention with

17 Pal Krasniqi, whose body -- who I told you about earlier and whose body

18 was found near the execution site, he was severely beaten with blunt

19 instruments. He attempted at one point to escape the Jablanica prison

20 with Mr. Krasniqi, but their attempt was unsuccessful. The KLA shot at

21 them, they were recaptured, and returned to KLA custody. KLA members,

22 including the two accused who sit in this court, Brahimaj and -- including

23 the accused Brahimaj, severely beat him.

24 Witness 12 will testify here. He will testify of a familiar

25 accusation. He heard the accused Brahimaj accuse Kuqi of spying for the

Page 412

1 Serbs. That was an accusation familiar against -- sorry, a familiar

2 accusation leveled against those whose bodies were later found battered

3 and beaten.

4 While in Jablanica detention, Skender Kuqi was beaten so severely

5 by Brahimaj and other KLA soldiers that his body became swollen and he was

6 unable to breathe because of his rib injuries. His kidney was exposed

7 through his wound and his tongue began lolling from his mouth. He

8 appeared dead, but Haradinaj, who was present, ordered that he be taken to

9 hospital. This was in about July -- July the 16th, 1998. He died in

10 hospital.

11 Of the 13 bodies found in the water of the canal, eight had

12 gun-shot wounds, often multiple, or fractures which were consistent with

13 them being shot. All bodies had multiple fractures, none of that were

14 consistent with that of a fall and other injuries which were inflicted

15 before death. 18 bodies were found on the ground -- 18 to 20 were found

16 on the ground near the concrete wall; 17 had gun-shot wounds, often

17 multiple gun-shot wounds, and mostly to the skull, head, trunk, chest.

18 Your Honours, the evidence of that is that their deaths -- the

19 evidence of gun-shot wounds is entirely consistent with the execution by

20 shooting at that wall.

21 A further piece of forensic evidence is that spent cartridges were

22 found there. Cartridges were found underneath the wall containing the

23 bullet-holes where the bodies were found. A total of 124 spent bullet

24 casings were found at three locations: Dasinovac, the Ekonomija farm, and

25 Lake Radonjic. And I want to explain the significance of this.

Page 413

1 I'll take you back to the 24th of March, 1998. There was an

2 altercation between the KLA and the MUP in the village of Dubravija. The

3 MUP forces blockaded the area and managed to find some bullet casings.

4 The Prosecution will produce a bullet report -- a ballistics report

5 showing forensic analysis of the cartridges found at these locations

6 showed identical patterns to cartridges found on the 24th of March, 1998,

7 in Gramocelj when MUP units chased and captured two KLA soldiers.

8 The accused are also charged under counts 35, 36, and 37 with

9 rape, as persecution, as a crime against humanity and as a war crime.

10 Witness 1 -- witnesses 1 and 2 lived in Rznic; they were not Kosovar

11 Albanians. In either July or August 1998, Balaj came to their house with

12 KLA soldiers and abducted them and took them to his nearby headquarters.

13 Balaj threw witness 1 into a well, but he took witness 2, witness 1's

14 wife, inside and interrogated her, the same accusation being leveled about

15 allegedly collaborating with the Serbs. Witness 2 will testify in this

16 court that he ordered the other soldiers to leave the room. He then,

17 Balaj, repeatedly raped her.

18 Another serious war crime charged is that of abduction, and I take

19 you to counts 33 and 34. On about the 23rd of May, 1998, KLA soldiers

20 abducted Kosovar Albanians Naser Lika and Fadil Fazlija, who were

21 residents of Grabanica from the village of Zabelj. The accusation against

22 them was one of treason. In their case, their crime was allegedly

23 supporting the opposition, that is the Democratic League of Kosovo, the

24 LDK. They were taken to KLA headquarters in Jablanica, that's Brahimaj's

25 headquarters, where the three accused and other KLA members threatened

Page 414

1 them. Haradinaj himself told them that they couldn't live in Kosovo

2 unless they helped to free the village from the Serbs.

3 Later, in mid-July 1998 -- they were released. Later, in mid-July

4 1998, Brahimaj himself and other KLA members abducted Naser Lika from his

5 home. They forced him into the trunk of a car, and they took Lika back to

6 the headquarters in Jablanica. Haradinaj was present. Haradinaj

7 personally ordered his men there to beat Lika, telling one KLA soldier

8 named Bandash to "go ahead with your job," meaning to beat Lika. Bandash

9 attacked Lika with a baseball bat, Balaj threatened him with death, and

10 Haradinaj spat in his face.

11 He was kept for three days in the water-soaked cellar in the

12 Jablanica compound, which is now shown on the screen, and taken out

13 regularly for beatings. The photograph on the screen, taken some years

14 later, shows the basement filled with water, but witnesses will testify

15 that it was in a similar -- similar condition at the time. Lika managed

16 to escape after Brahimaj found that he could cook. He then employed him

17 in the kitchen, and he managed to escape from there.

18 The Jablanica detention centre was in operation from April till --

19 from April 1998 onwards. The KLA, under the control and direction of the

20 three accused, established and operated this particular prison to detain,

21 mistreat, and terrorise their perceived enemies; people who they perceived

22 to be collaborators with the Serbian regime and opponents of the KLA.

23 These were people such as Roma Kosovar, Catholic Kosovar Albanians, people

24 who were particularly vulnerable to being labeled as a collaborator, a

25 spy, or an enemy of the KLA. They were treated accordingly.

Page 415

1 The establishment and operation of this detention centre, the

2 facility which is shown on the -- which is shown now, is entirely

3 consistent with the KLA policy I've outlined, the policy under a joint

4 criminal enterprise, of the campaign of fear against perceived KLA

5 opponents in the Dukagjin Zone. It was entirely consistent with

6 KLA-published policy.

7 For example, in August 1998, the KLA actually declared in a public

8 communique that "preventive measures are also being taken against certain

9 collaborationist elements."

10 Well, as I've outlined earlier today, you've heard the result of

11 these preventative punitive measures being taken against the collaborative

12 elements. They was so punitive and so preventive that the people could

13 not do anything because they were dead.

14 Although Haradinaj -- Brahimaj commanded the facility, Haradinaj

15 visited regularly. And among the various KLA members involved in

16 torturing prisoners there, Balaj was the most notorious for his cruelty.

17 JUDGE ORIE: Mr. Re, have you got any idea how much time you still

18 need? Because, as I said before, two sessions for you, one session for

19 the Defence, was scheduled. We're close to two-thirds of the time.

20 MR. RE: I'll finish by -- what time are you taking the break?

21 JUDGE ORIE: Well, yes, that of course -- I had in mind that we'd

22 have a break in approximately five minutes, that we'd have a break of 20

23 minutes, and then that the Defence would have another one hour and 20

24 minutes.

25 Yes, Mr. Re, you told us four times that it was water in the

Page 416

1 basement. I mean, just to give you an example of -- after the first time,

2 we understood that already. We've seen the photograph several times but

3 you continue to speak. But if you try to focus, to give the information

4 once, and then -- so if you could finish -- would seven minutes do? Okay,

5 please do so.

6 MR. RE: The accused are also charged with a number of counts of

7 deportation. Human rights monitors will testify in this court of their

8 interviewing the members of terrified Serb civilian populations in around

9 April 1998. They will testify that as a result of the deliberate KLA

10 campaign to expel Serb civilians, by mid-April 1998, most of the Serb

11 population had fled KLA-controlled areas in fear and settled into Decani,

12 which was then under Serbian control.

13 They will testify that by May, the Dukagjin Zone KLA, under the

14 control and command of Haradinaj, had largely achieved their goal. Using

15 the tactics which I have outlined in my address this afternoon --

16 JUDGE ORIE: Mr. Re, now the interpreters are the victims of you

17 speeding up. I see that the French translation is already a couple of

18 lines behind. So would you please try to finish in normal speed, in five

19 minutes.

20 MR. RE: I will.

21 Using the tactics which I have outlined in my address earlier this

22 afternoon, they will describe how, by May 1998, the KLA, under the control

23 of Haradinaj in the Dukagjin Zone, had largely achieved their goal,

24 forcing all the Serbs out.

25 The accused are charged with crimes against humanity. The test

Page 417

1 for crime against humanity is it has to be a widespread or a systematic

2 attack upon a civilian population. From what I've described today, from

3 the locations, the systematic nature of what happened, the areas in

4 which -- the areas in which it occurred in the zone, the attack was

5 widespread; it was systematic.

6 As you can see from the shot on the screen, the yellow shows

7 murder, the green shows detention, the red shows abduction, and the blue

8 shows disappearance. This graphic, of itself, graphically illustrates

9 where the attacks occurred against the civilian population. It was

10 throughout the zone; it was a systematic attack; it was a coordinated

11 attack; it was a deliberate attack.

12 And having heard all of the evidence, the Trial Chamber will be in

13 no doubt that the accused coordinated, participated in, and used others to

14 direct this widespread or systematic attack against a civilian population

15 in the Dukagjin Zone between March and September 1998.

16 JUDGE ORIE: Thank you, Mr. Re.

17 Before we take the break, Mr. Emmerson, is there any news as to

18 whether or not Mr. Haradinaj would like to use an opportunity to give a

19 statement under Rule 84 bis, as was unclear up till quite recently?

20 MR. EMMERSON: Your Honour, he will not.

21 JUDGE ORIE: He will not. Could you tell us -- yes, okay. I take

22 it that you'll be able to finish in one hour and 20 minutes --


24 JUDGE ORIE: -- approximately? Yes. Then we will adjourn until

25 20 minutes to 6.00.

Page 418

1 --- Recess taken at 5.21 p.m.

2 --- On resuming at 5.42 p.m.

3 [Haradinaj Defence Opening Statement]

4 JUDGE ORIE: Mr. Emmerson, you may proceed.

5 MR. EMMERSON: May I ask, Your Honours, to have the e-court system

6 on the monitoring screen for the purposes of this address.


8 MR. EMMERSON: And you should have a map of the region showing at

9 this point --

10 JUDGE ORIE: I saw already a map. It is a bit -- now it's there

11 again. Yes.

12 MR. EMMERSON: Would Your Honours just give me one moment.

13 Your Honours, as the Prosecutor herself acknowledged in her

14 opening address, the indictment in this case is different in a number of

15 respects from indictments which are more usually tried by this Tribunal.

16 There is no allegation of a mass killing or the widespread destruction of

17 homes and properties.

18 The indictment is in reality little more than a patchwork of

19 individual allegations against Mr. Haradinaj's co-accused, tenuously

20 stitched together with the evidence of a tiny handful of witnesses - no

21 more than three or four in number - who claim to have seen

22 Ramush Haradinaj present at the commission of particular alleged crimes.

23 Each of those witnesses is, we say, unreliable, demonstrably so, and the

24 evidence that they are proposing to give against Mr. Haradinaj is false.

25 Those counts aside, the Prosecution case against Ramush Haradinaj

Page 419

1 depends on an alleged joint criminal enterprise. In order to expose the

2 fallacy of this allegation, it is going to be necessary to analyse in some

3 detail in the course of this trial the formation and evolution of the

4 Kosovo Liberation Army in western Kosovo, set against the aims and

5 objectives of the Serbian forces operating in the region.

6 The Prosecutor urged you to pay close attention to the geography;

7 we respectfully agree. But may we also urge you, from the outset, to pay

8 close attention to the chronology. And I'm going to say something about

9 each of these topics in my opening remarks.

10 Your Honours, the indictment relates to the period during 1998

11 when the Kosovo Liberation Army was struggling to establish itself.

12 During the first half of 1998, the KLA was made up of a small number of

13 committed fighters, like Ramush Haradinaj, together with a larger number

14 of ill-equipped and untrained volunteers. The important point is that its

15 structure was essentially horizontal and not vertical.

16 And that is, no doubt, why the Prosecution has not charged

17 Mr. Haradinaj with command responsibility under Article 7(3) of the

18 Statute. At this point in its history, the KLA lacked a formal or

19 effective command structure. Most of those who fought with the KLA were

20 villagers who would return to their daily lives when they were not

21 actively involved in the fighting. And Mr. Haradinaj was in reality the

22 commander of those who chose to follow him on any particular day.

23 Given this reality, the Prosecution has been driven to resort to

24 the vaguest possible allegation of joint criminal enterprise, effectively

25 alleging that Mr. Haradinaj should be held responsible for the acts of all

Page 420

1 armed Kosovo Albanians in the Dukagjin region, from the very beginning of

2 the indictment period, on the basis that he must have been party to some

3 sort of implied agreement to commit war crimes in order to secure and

4 maintain control of territory.

5 Your Honours, there is no evidence at all for the existence of any

6 such agreement.

7 For the Prosecution to argue that Mr. Haradinaj should now be held

8 responsible for any and every wrongful act committed within the Dukagjin

9 region between March and September 1998 would stretch the concept of joint

10 criminal enterprise beyond breaking point; it would render it meaningless.

11 There was no criminal conspiracy. The objectives of the KLA in

12 western Kosovo were to protect the local population against Serbian

13 aggression and to fight for an independent and liberated Kosovo.

14 As the Prosecutor herself alluded to, their cause has now been

15 recognised by the international community, as this trial is opening.

16 Negotiations over the future of Kosovo are well advanced. The

17 recommendation of the UN Special Envoy for Supervised Statehood is before

18 the Security Council, and Kosovo is widely acknowledged to be very close

19 to achieving independence.

20 But, Your Honours, this process has necessarily taken place in the

21 absence of one of Kosovo's most effective politicians, a man who was

22 widely seen as a unifying influence and the standard-bearer for his

23 nation's hopes of independence from Serbia.

24 And I want at the moment, and just at the outset, to say a few

25 short words about Ramush Haradinaj as a politician and as a soldier.

Page 421

1 As president of the Alliance for the Future of Kosovo, the AAK,

2 Mr. Haradinaj entered into a coalition government in 2004 with the

3 Democratic League of Kosovo, the LDK, which was led by the pacifist

4 President of Kosovo, Ibrahim Rugova.

5 JUDGE ORIE: Mr. Emmerson.


7 JUDGE ORIE: I remember that the Prosecutor said that the present

8 political developments were not to be linked --


10 JUDGE ORIE: -- that we'll concentrate on the evidence of this

11 case. So therefore, I wonder what the relevance is of this.

12 And I add to that that -- I told you I spent some time on opening

13 statements and literature.


15 JUDGE ORIE: One of the things I found several times, but it's not

16 primarily English law I think, but perhaps Mr. Guy-Smith could guide you,

17 that to tell already in advance whether the witnesses will be lying or

18 not, is -- and you said these were false witnesses --


20 JUDGE ORIE: -- IS supposed not to be appropriate during an opening

21 statement.

22 MR. EMMERSON: Certainly not a rule I'm familiar with.

23 JUDGE ORIE: Mr. Guy-Smith is nodding yes. So, you see, the

24 convergence of the several systems.


Page 422

1 JUDGE ORIE: So, therefore, relevance on this matter,

2 Mr. Haradinaj, especially since Mr. Guy-Smith expressed his concern that

3 it would become a political statement, whereas Madam Del Ponte, I would

4 say, only said that it had nothing to do with politics. And this Chamber

5 also considers this case to be a case in which it has to be established

6 whether the accused committed -- is responsible for any of the crimes in

7 the indictment.

8 So, therefore, if you'd please limit yourself in this respect.

9 MR. EMMERSON: May I simply say this: The relevance of this part

10 of what I wanted to say - and it's very brief - is in relation to

11 Ramush Haradinaj's attitude to minority populations within Kosovo, which

12 is one of the issues that the Tribunal is going to have to look into. And

13 one of the distinguishing features of Mr. Haradinaj as a political leader

14 was his commitment to the protection and integration of Kosovo's ethnic

15 minority.

16 JUDGE ORIE: Yes, that's in later stages, I take it?

17 MR. EMMERSON: In later stages, and Your Honours will need to see

18 the history, if I may say so, in its context, because --

19 JUDGE ORIE: The message is received clearly.

20 MR. EMMERSON: We say, Your Honours, that it is essentially that

21 feature which, perhaps more than any other, made him such a threat to

22 those who opposed independence for Kosovo. And as Your Honours know, as

23 soon as the indictment in this case was issued, Mr. Haradinaj announced

24 his resignation as Prime Minister, immediately travelled to The Hague to

25 surrender himself. And in his resignation speech, he urged the government

Page 423

1 to continue to be guided by the rules of mutual tolerance, respect for the

2 rule of law, and support for minority ethnic communities.

3 May I simply draw Your Honours' attention to this short extract

4 from a report published at the time by the International Crisis Group,

5 Mr. Haradinaj it says: "... expressed appreciation for the partnership of

6 the UN Secretary-General's special representative and the commander of the

7 international troops (COMKFOR), thereby helping to shield the

8 international presence ... from potential back-lash. His last government

9 meeting was with Serb and Bosniak ministers, at which he stressed that

10 there would be no attacks on minority Serbs. Crucially he relayed a

11 pointed message to people on the ground not to make trouble ... The

12 message given by Haradinaj from the moment of his indictment was to stay

13 focussed on the big picture and keep faith with the institutional route to

14 statehood."

15 And that is a position that he has consistently maintained during

16 his period of provisional release. Your Honour, that is all I want to say

17 at this stage about Ramush Haradinaj, the politician. But may I turn then

18 for a moment to Ramush Haradinaj, the soldier.

19 Mr. Haradinaj fought an honourable war. His targets were

20 combatants, not civilians. And faced with the overwhelming fire-power of

21 the combined Serbian forces, he sought to organise the defence of the

22 Albanian population in the area around Glodjane. He led by example. He

23 never expected KLA volunteers to fight battles he was not prepared to

24 fight himself. And he had no time for armchair generals who claimed

25 political leadership but who made little or no active contribution to the

Page 424

1 armed struggle against Serbia. In those respects, he was undoubtedly a

2 tough and independent fighter, and an effective one.

3 But the targeting of Serb civilians, or any civilians, was never

4 one of Mr. Haradinaj's military objectives, and he never ordered or

5 condoned the ill-treatment of detainees. That sort of dishonourable

6 conduct is the very opposite of the principles which have guided

7 Ramush Haradinaj, both as a soldier and as a politician.

8 I would like, if I may, briefly to sketch in the essential

9 military facts, political and military facts, which are relevant to this

10 indictment to put it in its context.

11 Your Honours, Kosovo has rightly been described as the book ends

12 of the conflict in the former Yugoslavia. In the second half of the

13 1980s, the Serbian leadership under Slobodan Milosevic began making plans

14 for the creation of a Greater Serbia, a centralised Serbian state,

15 encompassing the Serb-populated areas of Croatia and Bosnia, and it would

16 include the whole of Kosovo, considered by many Serbs to be their cultural

17 heartland and the cradle of the Serbian Orthodox Church.

18 The twin objectives for Kosovo, so far as the Belgrade regime was

19 concerned, were to implement constitutional changes which would deprive

20 Kosovo of its autonomous status under the constitution and to modify the

21 ethnic balance in Kosovo through a policy of discrimination, repression,

22 and ultimately ethnic cleansing.

23 This was to be achieved in three stages: Revocation of Kosovo's

24 autonomy under the constitution of what was then the Federal Republic of

25 Yugoslavia; a decade of repression of the Albanian population; and

Page 425

1 finally, in 1998, a military crackdown on the armed Albanian resistance,

2 which was used as a pretext for attacks on the Albanian civilian

3 population as a whole aimed at driving them out of Kosovo. And I want, if

4 I may, to look very briefly at the first two of those stages and then in a

5 little more detail at the third.

6 At the end of 1988 and the beginning of 1989, the Serbian Assembly

7 made changes to the constitution of the fry, effectively revoking Kosovo's

8 autonomy. Large-scale demonstrations took place throughout Kosovo, many

9 of which were violently crushed by riot police. There were mass arrests

10 and as many as a hundred people were killed.

11 A year later the Serbian Assembly adopted a package of legislative

12 measures to suppress the rights of the majority Albanian population in

13 Kosovo, Kosovar Albanians were dismissed from political and economic

14 institutions, Albanian property transactions were annulled, education in

15 Albanian was suppressed, and Albanian lecturers and students were excluded

16 from the universities. More than 80.000 Albanians were expelled from

17 their jobs.

18 Between 1994 and 1997, the situation in Kosovo deteriorated

19 further. The Serbian regime became increasingly violent and repressive.

20 Writing at the beginning of the 1998, the historian Noel Malcolm

21 recorded the situation in these terms. He said: "To produce an adequate

22 survey of the human rights abuses suffered by the Albanians of Kosovo

23 since 1990 would require several long chapters in itself. Every aspect of

24 life in Kosovo has been affected ...

25 "Arbitrary arrest and police violence have become routine ...

Page 426

1 "Serbian law does not, of course, permit the beating up of people

2 in police custody; but many graphic testimonies exist of severe beatings

3 with truncheons, the application of electric shocks to the genitals, and

4 so on ...

5 "An overall strategy of persuading Albanians to leave by

6 rendering their conditions of life intolerable was in operation."

7 Your Honours, during that decade of repression, a number of Kosovo

8 Albanian political parties emerged. The Democratic League of Kosovo, the

9 LDK, was formed in 1989. And under the chairmanship of Ibrahim Rugova,

10 the LDK advocated a peaceful solution of the Kosovo question through

11 dialogue with Belgrade.

12 The Popular Movement for Kosovo, the LPK, on the other hand,

13 advocated a solution through active means, including, if necessary, armed

14 insurrection.

15 Pockets of armed resistance sprung up, but it was not until the

16 end of 1997 that the Kosovo Liberation Army made its first --

17 JUDGE ORIE: You really have to slow down a bit; because the

18 transcriber, otherwise, will be behind.

19 MR. EMMERSON: Very well. I'll let it catch up for a moment. I

20 think we're there, are we? No?


22 MR. EMMERSON: All right.

23 JUDGE ORIE: Please proceed.

24 MR. EMMERSON: I got to the point where I was saying it was at the

25 back end of 1997 that the Kosovo Liberation Army made its first public

Page 427

1 appearance in Kosovo.

2 By this time, President Milosevic and his supporters had resolved

3 to take the next step in their plan for Kosovo, by destroying those

4 Albanian villages that were perceived to be the heartland of armed

5 resistance to the Serb regime. And so at the beginning of 1998, orders

6 were issued to implement this plan and to arm the Serb civilian population

7 of Kosovo.

8 Your Honours, the first Serbian attacks occurred in late February

9 and early March of 1998. And it might be helpful just to look at the

10 geography for a moment, to mark in the main towns in Kosovo, we have,

11 Prishtine, the capital; Peje in the west; Gjakove on the southern edge of

12 the Dukagjin region; Kline, on the eastern edge of the Dukagjin region;

13 Prizren in the south; and Ferizaj on the south eastern border of Kosovo.

14 On 28th February, 1998, Serb forces launched an attack on two

15 villages in the Drenica region: Qirez and Likoshan. They attacked

16 without warning, firing indiscriminately at civilians. Helicopters,

17 armoured military vehicles, mortars and machine-guns were used. And by

18 the end of the day, 26 Albanians, including a pregnant woman, had been

19 killed, many of them at close range. At least 12 of these people were put

20 to death after they had been arrested.

21 On the 5th of March, nine years ago today, Serb forces attacked

22 the family compound of a KLA leader called Adem Jashari in Prekaz. This

23 is an event that has considerable significance for Kosovar Albanians.

24 Police special forces shelled the Jashari family compound and then shot

25 all those who survived. 58 people were killed, including 18 women and 10

Page 428

1 children under the age of 16. At about the same time, an attack was

2 launched on the nearby village of Laushe. In all, more than 80 Kosovar

3 Albanians were killed in those brutal operations, including women, young

4 children and the elderly.

5 Your Honour, that is the background to what took place on the 24th

6 of March, because it was only a few weeks after those attacks, on the 24th

7 of March, that Serb forces launched an assault on the Haradinaj family

8 compound in Gllogjan. The male members of the Haradinaj family returned

9 fire. On this occasion, they provided a sufficient fire cover to enable

10 the women and children of the family to escape, and then managed to hold

11 the Serb forces at bay until they were able to escape themselves under

12 cover of darkness. Mr. Haradinaj was seriously injured.

13 During the day, Serb forces were seen using heavy weapons,

14 including the Praga 30-millimetre cannon, armoured vehicles and

15 helicopters in Gllogjan. Paramilitary police entered the village,

16 engaging in fire-fighting. Many people were detained. Large parts of the

17 village were destroyed, and three teenagers were killed by Serb forces as

18 they were fleeing to safety.

19 Reports suggest that school children were used by the Serb forces

20 as human shields, and one elderly couple was shelled in their home.

21 Simultaneous attacks were launched on the nearby villages, including

22 Irzniq. These villages were effectively left empty when the civilian

23 population fled at that time.

24 And that is the -- or marks what is, in effect, the first

25 milestone in the indictment.

Page 429

1 These were, by no means, the only Serb military attacks in western

2 Kosovo at this time. From the 24th of March onwards, Gllogjan and its

3 surrounding villages were under almost constant attack from the Serb

4 forces stationed on high ground just a few kilometres to the south. And

5 around Easter 1998, a VJ tank unit attacked Decan, destroying large parts

6 of the town.

7 As a result of these attacks, many people - Serbs, Roma,

8 Albanians - left the area to escape the fighting.

9 Your Honours, the most serious and sustained Serbian attacks

10 occurred in the course of three major offensives between May and

11 September. These provide the principal milestones in the Serbian campaign

12 in western Kosovo during the period covered by this indictment.

13 The first occurred towards the end of May; the second, at the end

14 of July and the beginning of August; and the third, from the beginning of

15 September. I'll say a few words, if I may, about each of these, because

16 they are essential to an understanding of the military objectives of the

17 KLA in the Dukagjin region, and they are also essential to a proper

18 evaluation of the Prosecution's case as to what was taking place on the

19 ground.

20 In the second half of May, a Serbian offensive was launched in the

21 Dukagjin region. After a number of devastating attacks on towns and

22 villages close to the Albanian border, Serb forces attacked a village

23 called Grabanice on the 19th and 20th of May, killing a number of

24 civilians and causing most of the local population to flee the area.

25 On the 25th of May, Serb special forces attacked the villages of

Page 430

1 Lybeniq and Strellc. Buildings were burned, and 11 villagers were killed.

2 Then on the 28th of May, Serb forces advanced southwest from Peje

3 and launched attacks in the areas around Vranoq and Baran. Simultaneous

4 attacks - this is the 28th of May, a day of some significance to this

5 indictment - simultaneous attacks occurred on the same day in Junik, in

6 Carabreg, in Prejlep, in Isniq, and in Rastavice.

7 The pattern, Your Honours, for these attacks in each case was

8 essentially the same. First, villages would be surrounded with heavy

9 artillery and armoured vehicles. There would then be a destructive phase

10 of bombardment, and then the notorious paramilitary police would enter the

11 area on foot, shooting survivors who had remained behind, looting Albanian

12 property, killing livestock, and setting fire to everything from buildings

13 and schools to haystacks. These were euphemistically called "mopping up"

14 operations. In many instances, villages were simply razed to the ground,

15 and you will hearing in due course some evidence about that.

16 These Serbian operations were characterised invariably by the use

17 of indiscriminate and excessive force, with no distinction being drawn

18 between combatants and civilians.

19 Your Honours, throughout this period, the Serb forces were

20 maintaining constant pressure on the villages around Gllogjan, a matter of

21 some importance in assessing the Prosecution's central thesis about KLA

22 control in a territory. They were regularly shelling from vantage points

23 in elevated positions to the south, supported by paramilitary police units

24 who made forays into the areas on the ground.

25 The people ultimately responsible for many of these attacks,

Page 431

1 General Bozidar Delic and General Dragan Zivanovic, are witnesses the

2 Prosecution is proposing to call.

3 Your Honours, the second major Serbian offensive was launched

4 across the region at the end of July and the beginning of August. The

5 villages attacked in this phase of the campaign included Junik, Rastavice,

6 and Prejlep.

7 On the 2nd of August, Serb forces entered Jabllanice. Gramaqel

8 was overrun on the 8th of August, and the villages of Shaptej and

9 Rastavice fell to the Serbs on the 9th of August. Serb forces then moved

10 towards Gllogjan and Irzniq, the towns of villages at the centre of this

11 indictment, and they took control of them on the 12th of August.

12 Your Honours, a BBC film crew was in Gllogjan and Irzniq at the

13 time that Serb forces took control of this area and captured footage of

14 the Serb assault. And the broadcast that I'm about to show to Your

15 Honours gives a vivid picture of the situation on the ground. It's a

16 short piece of film and needs to be heard through headphones on channel 4.

17 [Videotape played]

18 "Reporter: The Serbs know that they have the upper hand and they

19 are determined to press home the advantage. This time you've got the

20 village of Glodjane in flames shelled and machine-gunned into submission.

21 On the other side the KLA allowed us exclusive access to their new front

22 line. They're nervous but determined. Some of these men come from this

23 village. They know what's happened up ahead and they now lie directly in

24 the path of the Serb offensive, which has already removed the rebel

25 fighters from most of their strongholds in Kosovo.

Page 432

1 "The waiting is tense, but already it's clear that they won't

2 have to wait long. The shells are now falling on Rznic. Against

3 artillery there's little that the KLA has been able to do but run. All

4 this is happening while both sides consider peace proposals and the

5 international community struggles to find a way forward.

6 "Despite the international diplomacy, the situation on the ground

7 remains unchanged. The Serbs are still pressing their offensive; the KLA

8 still defending their villages and communities. The Serbs, of course,

9 don't see it that way. They insist that the rebel fighters are the

10 problem, and without them so much misery and destruction could have been

11 avoided.

12 "Here it's the paramilitary police that are bearing down on the

13 KLA. In other places we saw heavily armed units of the Army of

14 Yugoslavia. The Serbs say they now regard this as a mopping-up

15 operation. For the KLA it's becoming a battle for survival. When there

16 is fighting there are, of course, more refugees. Almost 200.000 people

17 have been made homeless by this conflict the aid agencies have been hoping

18 that they would return to their villages. What's happened today makes

19 that a very distant prospect.

20 "Jeremy Cook, BBC news, Rznic, Kosovo."

21 MR. EMMERSON: Your Honours, as that footage shows, much of the

22 civilian population of Gllogjan and Irzniq left the area. The KLA was

23 driven out, too, and the entire area, including the area around

24 Lake Radoniq and the canal, was left under the exclusive control of the

25 Serbian paramilitaries. By the time the villagers began to return to

Page 433

1 their homes in Gllogjan two weeks later, the Serb forces had withdrawn.

2 Your Honours, the last of the major Serb offensives to take place

3 during the period covered by the indictment was launched just a few weeks

4 later, at the beginning of September. This time Serb forces, including

5 the VJ and the paramilitary police, engaged in coordinated attacks on

6 ethnic Albanian villages across large swathes of Kosovo.

7 As part of that offensive, on the 3rd of September, Serb forces

8 attacked Gllogjan again. They approached from Gergoc to the east and from

9 Peje and Carabreg to the west. And they left a corridor, as was common,

10 to encourage civilians to flee towards the Albanian border. Extensive

11 damage was inflicted on many of the villages in the area, and Serb forces

12 were still engaged, on the Prosecution's own evidence, in burning and

13 looting Albanian property a week after the attack.

14 I want to turn now, if I may, to the emergence of the armed Kosovo

15 Albanian resistance movement.

16 The Kosovo Liberation Army, the KLA, was formed in 1994, although

17 its existence did not, as I've said, become widely known in Kosovo until

18 1997. From the beginning, the KLA was a prescribed organisation and it

19 operated underground. Between 1994 and 1997, KLA members and other armed

20 fighters mounted a relatively small number of sporadic armed attacks on

21 the Serb forces.

22 Now, Mr. Haradinaj was living outside Kosovo during this period,

23 mainly in Switzerland. He left Kosovo in 1991, and although he made a

24 number of clandestine visits in the intervening period, he did not return

25 to live there again until the end of February/beginning of March.

Page 434

1 At that time, and this is really central to an understanding of

2 the way the Prosecution puts its case, at that time the KLA had no formal

3 or organised military structure in place; it essentially consisted of

4 small pockets of resistance in different parts of Kosovo.

5 During the course of his opening, Mr. Re suggested that when

6 Mr. Haradinaj arrived back in Kosovo, he was appointed immediately as

7 commander of the Dukagjin Zone and that he was a member of the KLA General

8 Staff. That suggestion shows, if we may say so, a surprising lack of

9 familiarity with the Prosecution's own evidence. The Dukagjin Zone did

10 not exist at all at that time, nor was Mr. Haradinaj, then or ever, a

11 member of the KLA General Staff.

12 But, Your Honour, in response to those attacks in Qirez, Likoshan,

13 Prekaz at the end of February and the beginning of March and then

14 Gllogjan, rudimentary village defence groups began to form and seek to

15 organise themselves. They were, by and large, volunteers without military

16 training. Weapons and uniforms were in short supply and attempts were

17 made to bring supplies in from Albania.

18 Initially, these villages were operating autonomously. But in

19 late May, the first real attempt was made to coordinate the different

20 village defences into a single command structure.

21 At a meeting which Mr. Haradinaj convened in Gllogjan in the last

22 week of May, a regional staff was established for the area. A number of

23 subzones were set up, each led by its own commander. And at that point

24 Mr. Haradinaj was the commander of the subzone centred around Gllogjan.

25 The other zones which gathered together, or the other centres

Page 435

1 which gathered together, at the time of that end-of-May meeting, were

2 centred around the village of Irzniq, where the commander was a man called

3 Shemsedin Cekaj; Dashinoc, where the commander was a man called

4 Rrustem Tetaj; and Irzniq, a little further to the north, which was under

5 the joint leadership of two men called Gani Gjukaj and Skender

6 Rexhahemetaj.

7 It's important to emphasise that within these areas the KLA did

8 not have exclusive control of the territory. The situation was fluid with

9 armed engagements taking place between the KLA and the paramilitary police

10 on a regular basis. The areas covered by these first subzones are best

11 understood as pockets in which there was a concentration of armed Albanian

12 resistance fighters who were loyal to the emerging KLA.

13 It's also important to emphasise that the villages that came

14 together at the end of May did not include villages from across the whole

15 of what later became known as the Dukagjin Operational Zone. They did not

16 include, for example, the KLA base at Jabllanice.

17 However, about a month later - we're moving forward now to the

18 23rd of June - a decision was taken to create a single zone in Dukagjin

19 which would include Jabllanice, to the east, and Junik, to the west. That

20 process of amalgamation created this new larger area which was the

21 Dukagjin Operational Zone. The Dukagjin Operational Zone came into

22 existence on the 23rd of June, and Mr. Re, albeit very briefly, flashed

23 before Your Honours the minutes of the meeting at which that zone was

24 created.

25 Ramush Haradinaj was elected by those present at the meeting to be

Page 436

1 the zone commander, and Lahi Brahimaj was elected as his deputy. But,

2 Your Honours, within that structure - and one can see it from the way it

3 evolved - local commanders retained a significant level of autonomy and

4 independence.

5 Communication existed but was rudimentary and coordination existed

6 but was rudimentary. And local village groups and commanders would often

7 respond spontaneously to events as they unfolded in their area, without

8 waiting for orders from any central command. And that applied not only to

9 defensive action aimed at protecting local civilian populations of a

10 particular village against Serb military attacks or the attacks of Serbian

11 paramilitary units, but also to the mounting of offensive operations

12 against the Serb forces. There was a very significant level of local

13 autonomy within the structure.

14 Your Honours, put very briefly, those then are the essential

15 military facts relevant to the present indictment.

16 And can I turn now to the allegations made against Mr. Haradinaj

17 in a little more detail and, nonetheless, in overview.

18 Your Honours, of the 37 counts on the indictment, Mr. Haradinaj is

19 alleged to have been present at, or to have participated in, a total of

20 five of the incidents alleged. Your Honours know that those allegations

21 are completely denied.

22 As for the remaining 32 counts on the indictment, the Prosecution

23 case against Mr. Haradinaj is based solely on an allegation of joint

24 criminal enterprise with his co-accused and with others. Your Honours, we

25 say there is simply no credible evidence of Mr. Haradinaj acting together

Page 437

1 with his co-accused or with others named as members of the alleged joint

2 criminal enterprise in pursuit of any common criminal objectives.

3 On inspection, the Prosecution case on joint criminal enterprise

4 comes down to two central propositions, each of which we say is

5 fundamentally flawed.

6 The first proposition is that throughout the indictment period the

7 KLA, under Ramush Haradinaj, exercised exclusive control over an area of

8 territory to the east of the Peje-Gjakove road, which the Prosecution has

9 called the Area of Total Control. That's why it's important to understand

10 the reality of the military engagements on the ground.

11 The second proposition on which the joint criminal enterprise

12 allegation effectively rests follows on from the first. The Prosecution

13 suggest that the Dukagjin KLA and, by implication, Mr. Haradinaj, must now

14 be held responsible for the deaths of 31 individuals whose remains were

15 recovered from the Lake Radoniq canal area, principally, as Mr. Re pointed

16 out, because, says the Prosecution, those remains were found within this

17 so-called Area of Total Control.

18 Your Honours, the first of these propositions is inconsistent with

19 the facts. The suggestion that the KLA had complete control of the

20 relevant area to the exclusion of all Serb forces is unsustainable. The

21 three major Serbian offensives that I've outlined each involved attacks by

22 Serb forces, including Serb paramilitaries, on villages within the

23 so-called area of total control.

24 But, Your Honours, quite apart from those major offensives, there

25 is indisputable evidence that Serb forces, including special forces, were

Page 438

1 operating within the area and, in some instances, were operating

2 immediately adjacent to Lake Radoniq.

3 Your Honours, in order to understand the geography, it might be

4 helpful if I just briefly show Your Honours an aerial view of the canal

5 and the lake, moving from Irzniq down towards the canal area.

6 Your Honours, we can see in this image Irzniq to the right, bottom

7 right hand of the screen, and the blue line traces the route of the canal.

8 The camera is moving southwest along the canal route in the direction of

9 the lake. You see Gllogjan just disappearing to the right. The camera is

10 now approaching the Economic farm, and then travelling on towards the

11 lake.

12 Can I ask Your Honours just to note those two roads, two dirt

13 roads, on either side of the canal and head down towards the area around

14 the lake.

15 Now, Your Honours, it is clear from contemporary records that Serb

16 forces, including paramilitary units, were stationed at a number of

17 locations in the immediate vicinity of the lake from April 1998 onwards

18 and throughout the indictment period, and that they were conducting

19 operations from those positions. They were based at vantage points in

20 elevated positions just a few kilometres from Gllogjan.

21 On the east side of the lake, there were Serb troops at

22 Suka Cermjan. On the west side, they were stationed at Suka Bitesh and at

23 Suka Babaloqit. These hills have different names in Serbian, but they are

24 all marked with their relevant heights on the maps that Your Honours have.

25 And this first slide gives a rough indication of the view from the

Page 439

1 vantage point of the Serb forces at Suka Cermjan with Gllogjan and Irzniq

2 in the distance.

3 Your Honours, moving a little to the west, we can see the view

4 from the south shore of Lake Radoniq, with Suka Bitesh in the centre of

5 the picture, and the next slide shows the vantage point at Suka Bitesh.

6 This slide shows the vantage point from Suka Babaloqit, again with

7 Gllogjan marked on the map. Just as a rough indication, Gllogjan is

8 approximately equidistant between Suka Bitesh and the canal area. It's

9 important, if I may, to emphasise that each of these hills is less than

10 4 kilometres from Gllogjan, the closest approximately 3 kilometres.

11 So the theory that lies at the heart of the Prosecution's case

12 that during the indictment period, the KLA exercised total and effective

13 control of the area to the east of the Peje-Gjakove road, to the exclusion

14 of Serb forces, is simply wrong.

15 Your Honours, this last view shows the view from the north side of

16 the canal looking south towards the Economic farm, and those two hills of

17 Serb forces in the background. Gllogjan can be seen to the right of the

18 picture.

19 And if, Your Honours, if I can just direct your attention for a

20 moment to the blue line running along the canal. If you can see the point

21 where the blue line turns to white, that shows the approximate position at

22 which the Serbian authorities recorded the discovery of human remains in

23 September 1998, which brings me to the second limb of the Prosecution case

24 on joint criminal enterprise.

25 Your Honours, in total, 31 sets of human remains were recovered by

Page 440

1 Serbian forensic teams, or were recorded as having been recovered, in that

2 area in early September. It is common ground that these individuals died

3 on different dates over a six-month period and that the discovery of their

4 remains does not imply any sort of mass killing or collective execution.

5 Nonetheless, the Prosecution seeks to argue that all of the

6 remains distributed along the canal area must be victims of crimes

7 committed by the KLA primarily because they were recovered within the

8 so-called area of total control. We submit that approach is fundamentally

9 misconceived.

10 It is important, if I may say so, to emphasise that of the 31 sets

11 of remains recovered in the area, eight are still [sic] Identified, and

12 there are a further ten sets of remains that have been identified by DNA

13 but for whom there is no evidence as to the circumstances of their death.

14 Would Your Honours give me a moment.

15 I think there's an error on the transcript. Eight unidentified.

16 In respect, Your Honours, of both the unidentified and the

17 unattributed remains, there is no evidence to suggest that they were

18 killed by members of the KLA, still less that their deaths were war

19 crimes; that the plain fact is that no one knows how they died or who

20 killed them.

21 In addition to those 20 sets of remains, there are four further

22 sets of remains for which there is no DNA analysis. And as we've

23 explained in our pre-trial brief, the -- what are called the traditional

24 methods of identification, clothing identification, essentially,

25 compared -- together with a comparison of pre-and post mortem data, those

Page 441

1 traditional methods of identification which were used by the Serbian

2 forensic teams have yielded a 50 per cent rate of error in identification

3 on the facts of this case. And they, for that reason, we would

4 respectfully submit, are to be disregarded as unreliable bases for

5 inferring identification.

6 Your Honour, in the absence of DNA evidence, there is no safe

7 basis for establishing the identity of these individuals. And in the

8 absence of reliable evidence as to their identity, there is no means of

9 reliably establishing the circumstances in which they met their deaths.

10 Your Honours, drawing the various threads together, the resulting

11 position is this: Of the 31 sets of remains recorded by the Serb forensic

12 teams, there are nine individuals identified by DNA in respect of whom the

13 Prosecution intends to call evidence alleging KLA responsibility for their

14 deaths in one form or another; essentially, in many cases, evidence that

15 they were detained.

16 Now, obviously - and I don't propose to comment on it - but the

17 reliability of that evidence is an issue for Your Honours to determine in

18 the trial, and it is in dispute. But it is, nonetheless, worth pointing

19 out at this early stage of the trial, on Mr. Haradinaj's behalf, that

20 those nine individuals are named as the victims of five pairs of counts on

21 the indictment, none of which alleges the presence or direct participation

22 of Mr. Haradinaj.

23 But, Your Honours, the flaws in the Prosecution case in relation

24 to the canal are not brought to an end by that recognition. There are, we

25 say, serious grounds to question the integrity of the Serbian recovery

Page 442

1 operation as a whole, which are going to need to be explored in some

2 detail in the trial. There are a number of indications to suggest that

3 the alleged crime scene may well have been manipulated for propaganda

4 purposes. There are questions relating not only to the canal area itself

5 but also to six further sets of remains that were allegedly recovered at

6 or about the same time, at the nearby Economic farm. Mr. Re made no

7 mention of those six people, and for good reason. They are no longer

8 included in the indictment. That is because the Prosecution now

9 recognises that they were, in all probability, or may well have been,

10 killed by Serb forces.

11 Indeed, Your Honours, the family of three of those victims have

12 told the Prosecution that they last saw their relatives alive in Serb

13 custody. All six of those victims were Albanian. They all had family

14 connections to the KLA. And one of them was related to the Jashari

15 family, who had been the target of the massacre in Prekaz in early March.

16 But, Your Honours, the removal of those charges from the

17 indictment doesn't mean that these six bodies are irrelevant to the

18 present case. The remains of those six individuals had been deliberately

19 placed at the Economic farm by someone. The official claims made by the

20 Serbian authorities, including those involved in the forensic evidence

21 that you are going to hear, that they were victims of the KLA and must

22 have been, points, we say, to an orchestrated attempt to manipulate the

23 evidence in order to hide the responsibility of Serb forces for those

24 deaths, and at the same time falsely to implicate the KLA.

25 If that is, indeed, what happened in this case, then it would not

Page 443

1 be the only occasion on which Serb forces had engaged in the falsification

2 of evidence and the transportation of bodies.

3 In the Milutinovic case, for example, the Prosecution itself

4 alleges that Serb forces removed and transported the bodies of Kosovar

5 Albanian victims in order to escape responsibility for their crimes. And

6 the Prosecution also alleges that the Serb forces were ordered to carry a

7 quantity of Chinese ammunition so that they could falsely implicate the

8 KLA in crimes that had been committed by Serb special forces. That, too,

9 has an echo in the present case.

10 The presence of Chinese ammunition in the Lake Radoniq canal area

11 was specifically highlighted by the Serb authorities, and, indeed, by the

12 Prosecution in its pre-trial brief, as evidence of KLA responsibility.

13 The Serb authorities pointed, in particular, to the finding of Chinese

14 ammunition when presenting their findings to the media and to

15 representatives of the international community.

16 So, Your Honours, we say it is impossible to draw any safe

17 conclusions from the precise location in which the various human remains

18 are said to have been found by the Serbian authorities involved in this

19 recovery operation. The photograph you were shown with the positions

20 marked on it - we can see it there at the bottom - that is produced by the

21 Prosecution based on records provided by those directly involved in the

22 Serbian recovery operation which resulted in the claim that six people at

23 the Economic farm were KLA victims, and must have been. It was not, as

24 one might have had the impression, an analysis conducted with impartiality

25 or by independents or internationals.

Page 444

1 And, Your Honours, once there is evidence suggesting manipulation

2 and fabrication of material at the crime scene, it becomes impossible, we

3 say, to have any confidence in the integrity of the crime scene evidence.

4 Your Honours, I want to turn now to the counts alleging crimes

5 against humanity, but briefly. On this aspect of the case, the Defence

6 places considerable reliance on the findings of the Trial Chamber in the

7 Limaj case. In that case, the Trial Chamber found that the evidence did

8 not establish, or even indicate, that the KLA had a policy of targeting

9 civilians as such, whether Serbian or Kosovar Albanian.

10 Your Honours, it's important that I emphasise four points about

11 this aspect of --

12 JUDGE ORIE: May I just ask you one question, Mr. Emmerson. When

13 we talk about findings of Trial Chambers --


15 JUDGE ORIE: -- especially when there's still an appeal pending, I

16 take it, then, that sooner or later you'll discuss with Mr. Re whether or

17 not it would be appropriate to make any application for taking judicial

18 notice of -- and then of course it should qualify. Do I understand this

19 presentation to be that, if need be, that there will be an application for

20 taking judicial notice? Because, of course, with due respect, what other

21 Trial Chambers have decided is, I wouldn't say irrelevant, but it's not on

22 the basis of the evidence which is before us.

23 MR. EMMERSON: There are, if I may say so, four points that I want

24 in particular --

25 JUDGE ORIE: Please proceed.

Page 445

1 MR. EMMERSON: -- which tackle the issue that Your Honour has just

2 raised.

3 The first point is that the findings of the Limaj Trial Chamber

4 were not, as Mr. Re suggested, confined to any particular region of

5 Kosovo. They were expressed as applying to the whole of Kosovo.

6 The second point is that the principal evidence which the

7 Prosecution relies on in this case was also before the Trial Chamber in

8 Limaj. The Chamber had heard evidence relating to the discovery of human

9 remains at the Lake Radoniq canal area and in relation to the alleged

10 ill-treatment of detainees at Jabllanice.

11 And third, while Your Honour is right to say that there's an

12 appeal pending, the Prosecution has not appealed this aspect of the

13 findings in Limaj. There is no appeal in relation to crimes against

14 humanity.

15 And fourthly, the Prosecution has made no attempt, in its

16 pre-trial brief or in its opening, to explain how the findings in Limaj

17 can properly be distinguished in the present case.

18 And, Your Honour, we say - and this really answers Your Honour's

19 question - that the conclusions reached by the Limaj Trial Chamber,

20 whether they're binding is not the point; they are right. And they are

21 borne out by the evidence in the present case.

22 Your Honours, the actual counts on this indictment allege the

23 deaths of a total of 12 Serbs across the Dukagjin region over a period of

24 approximately six months. 12 Serbs across the period of six months across

25 the Dukagjin region. And in respect of six of those individuals, there is

Page 446

1 no evidence at all as to the circumstances of their death, which must

2 therefore remain a matter of speculation. There are six Serb individuals

3 on the indictment in respect of whom the Prosecution proposes to call

4 evidence alleging direct KLA responsibility in one form or another.

5 Your Honour, the very last main topic I want to address, and very

6 briefly indeed, is the date on which a state of armed conflict can

7 properly be said to have come into existence in Kosovo. That is obviously

8 something which raises a jurisdictional issue which may affect, in

9 particular, those counts which are alleged to have occurred in the early

10 months of the indictment period.

11 Your Honour, it is sufficient at this point for me to say that the

12 Trial Chamber's judgement in Limaj strongly suggests that the operative

13 date would be sometime towards the end of May. That was, as it happens,

14 the date that the Prosecution's own expert witness put on it when advanced

15 as evidence in that case. It is, of course, ultimately for the

16 Prosecution to prove when, during the period covered by the present

17 indictment, a state of internal armed conflict can properly be said to

18 have come into existence. Polemic and rhetoric, even the comments of

19 international human rights groups as to whether a state of armed conflict

20 was in existence at a particular time, are of marginal value. It's a

21 matter, we say, for the Trial Chamber to evaluate, properly applying the

22 law to the facts and the evidence. And the arguments of the Defence are

23 fully set out in our pre-trial brief and will be developed at a later

24 stage of this case.

25 Your Honours, in conclusion, may I say this: For the people of

Page 447

1 Kosovo, the conflict in 1998 and 1999 was, very obviously, a brutal and

2 overwhelming experience. Best estimates suggest that 12.000 people died,

3 120.000 homes were destroyed, countless women were raped by Serb forces,

4 and at one point a million people were displaced from a population of only

5 2 million.

6 During 1998, the KLA in the Dukagjin region was facing some of the

7 most ruthless forces of the Serbian regime. For the KLA and for

8 Ramush Haradinaj, lives depended on making the right decisions every hour

9 of every day. And as the BBC reporter we saw earlier put it, they were

10 fighting to defend their villages and communities and it was, for them, a

11 struggle of survival.

12 The people of western Kosovo would not have supported the KLA,

13 would not have fed them and sheltered them and tended to their wounds, if

14 they had behaved in the way that the Prosecution alleges in this case.

15 Your Honours, there was no agreement to commit war crimes. There

16 was no agreement to persecute or kill civilians or ill-treat detainees.

17 Ramush Haradinaj is not a war criminal. The charges against him are

18 completely unfounded, and the Prosecutor's decision to indict him was

19 unjust.

20 JUDGE ORIE: Thank you, Mr. Emmerson.

21 Since none of the other counsel have announced any wish to make an

22 opening statement, and since none of the accused wants to apply for an

23 unsworn statement under Rule 84 bis, this concludes the delivery of the

24 opening statements.

25 There are a few practical and technical matters I'd like to

Page 448

1 raise. Some of them will have to be dealt with in private session, but

2 the first one I'll deal with in open session, and that's the following:

3 Today some videos were played. The video played by the

4 Prosecution was a silent one, without any spoken text, from what I

5 remember, Mr. Re, if I'm remembering well. That was different with the

6 video played where the comment was in English which does not appear at

7 this moment at the transcript, which most likely - but I didn't check

8 that - means that it will not appear on the French transcript either.

9 Therefore, we have to find a solution for that.

10 I suggest to the parties that we -- in order to have as complete a

11 record as possible, that we deal with videos in the following manner:

12 That the parties provide to the interpreters' booth a transcript of the

13 spoken words in the original language; that then this will be read out so

14 that it will be transcribed for the English transcript. At the same time,

15 the text is very often spoken, even if it's not read out, if it's at least

16 transcribed so that it appears on the English transcript. At the same

17 time, sometimes the text is spoken so quickly that it's impossible for the

18 interpreters to translate it so that it also appears on the French

19 transcript. A solution to that would be if one of the interpreters would

20 read the transcript provided by the party and checks whether what the

21 interpreter reads is the same as what the interpreter hears, and that the

22 other interpreter then interprets the text on the basis of the transcript,

23 since there's a fair chance that the interpreter would not be able to

24 follow at the speed of the spoken words. This would guarantee that we

25 have complete transcripts both in English and in French, and also that

Page 449

1 working on the basis of the transcript is verified as to whether the

2 transcript reflects the original spoken words.

3 This is a suggestion to the parties and to the interpreters'

4 booth. We practiced this same technique in one of the other cases I

5 presided over. It is a burden; at the same time, it worked well and it

6 avoids a lot of -- it avoids errors made.

7 At the same time, Mr. Emmerson, I remember that you said when the

8 video was introduced that we had to put on our earphones because that's

9 how we could follow the text. You certainly remember that at a recent

10 meeting, it was requested that everyone always uses his earphones in order

11 to hear also comments by the interpreters, such as: "Could you please

12 slow down," et cetera. So, therefore, everyone is encouraged to follow

13 that suggestion and not the suggestion made by you only to put on your

14 earphones if it's needed to hear the video.

15 Then these were the technical matters we could deal with in open

16 session. Before we adjourn, I'd like to go into private session, briefly.

17 [Private session]

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 450











11 Page 450 redacted. Private session.















Page 451

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 [Open session]

12 THE REGISTRAR: Your Honours, we're back in open session.

13 JUDGE ORIE: Thank you, Madam Registrar.

14 The Chamber is aware, Mr. Re, that where we hurried you up a bit,

15 that we would have left seven minutes, which might have diminished a bit

16 of the pressure upon you to finish your opening statement. But that's

17 reality, let's say it this way.

18 Unless there's any other procedural issue to be raised at this

19 moment.

20 Mr. Guy-Smith, I see you.

21 MR. GUY-SMITH: Yes. I thought it might be of some assistance,

22 because an issue had come up with regard to some language that was used in

23 something that I was reading during the Prosecution's presentation on the

24 ELMO, so it was information that was produced by the Prosecution, if

25 perhaps we obtained a full file of the Sanctions and the slides that were

Page 452

1 used during the presentation of the Prosecution's opening statement, it

2 might be of assistance in also having a complete record.


4 MR. RE: There's a very, very innocent explanation for this. The

5 document which was displayed was the official translation, and the one I

6 was reading from was the draft translation. And when I put mine to mind,

7 it was just -- it's not a problem.

8 JUDGE ORIE: Mr. Guy-Smith was asking for a complete record.

9 Would you be able to provide whatever you used to the Defence? I don't

10 think it will take a major effort.

11 Anything else? If not, then we'll adjourn until tomorrow, quarter

12 past 2. Madam Registrar, I take it the same courtroom? Not this same

13 courtroom. Courtroom II, tomorrow, quarter past 2. We'll then hear the

14 witness next called and we'll deal with a few procedural matters in the

15 beginning of the next session.

16 We stand adjourned.

17 --- Whereupon the hearing adjourned at 6.55 p.m.,

18 to be reconvened on Tuesday, the 6th day of

19 March, 2007, at 2.15 p.m.