Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Thursday, 18 August 2011

 2                           [Prosecution Opening Statement]

 3                           [Open session]

 4                           [The accused entered court]

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

 6             JUDGE MOLOTO:  Good afternoon to everybody in and around the

 7     courtroom.

 8             Madam Registrar, will you please call the case.

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

10     number IT-04-84bis-T, the Prosecutor versus Ramush Haradinaj,

11     Idriz Balaj, and Lahi Brahimaj.

12             JUDGE MOLOTO:  Thank you so much.

13             Could we have the appearances for the day, please, starting with

14     the Prosecution.

15             MR. ROGERS:  Yes, good afternoon, Your Honours.  Paul Rogers

16     appearing for the Prosecution together with my team, Priya Gopalan,

17     Ms. Daniela Kravetz, Ms. Barbara Goy, and Mr. Aditya Menon, and our case

18     manager today Mr. Colin Nawrot.

19             JUDGE MOLOTO:  Thank you very much.

20             And for the Defence, starting with Mr. Haradinaj.

21             MR. EMMERSON:  Your Honour, Ben Emmerson on behalf of

22     Mr. Haradinaj, together with my learned friends Rod Dixon and

23     Ms. Annie O'Reilly and Mr. Andrew Strong.

24             JUDGE MOLOTO:  Thank you so much.

25             And for Mr. Balaj.

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 1             MR. GUY-SMITH:  Good afternoon, Your Honour, Gregor Guy-Smith

 2     appearing on behalf of Mr. Balaj with Ms. Colleen Rohan and

 3     Mr. Chad Mair.

 4             JUDGE MOLOTO:  Thank you very much, Mr. Guy-Smith.

 5             And for Mr. Brahimaj.

 6             MR. HARVEY:  Good afternoon, Your Honours.  Richard Harvey

 7     appearing for Mr. Brahimaj, together with Mr. Paul Troop,

 8     Ms. Sophie Rigney, and Mr. Luke Boenisch.

 9             JUDGE MOLOTO:  Thank you very much, Mr. Harvey.

10             Mr. Rogers.

11             MR. ROGERS:  Your Honours, first of all you should have a bundle

12     of documents which we have produced which are copies of the slides that

13     we will be showing during the course of the opening this afternoon.

14     Your Honours, sometimes it's easier to see them in the hard copy than on

15     the small screens because I know that there is variable quality sometimes

16     on the screen itself, and so that's why we have produced them I hope to

17     be of some assistance to the Court.

18             JUDGE MOLOTO:  Thank you very much, Mr. Rogers.

19             MR. ROGERS:  Your Honour, the crimes alleged in this partial

20     re-trial cover a short time-frame, between about the 19th of May, 1998,

21     and approximately the end of July 1998.  The crimes for which these

22     accused are to be held criminally responsible in this trial were, the

23     Prosecution says, all perpetrated in the KLA prison at Jabllanice in the

24     municipality of Gjakove, western Kosovo.

25             Your Honours, the counts allege murder, torture, and cruel

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 1     treatment against the laws and customs of war.  They were comitted

 2     pursuant to a joint criminal enterprise involving the three accused,

 3     Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj, in which we say

 4     collaborators, spies, and those suspected of treachery or opposition to

 5     the KLA were targeted.  The victims were beaten, tortured, and in some

 6     cases murdered, regardless of their ethnicity, be they Serb, Roma,

 7     Egyptian/Ashkali, or Kosovar Albanian, whether they were Christian or

 8     Muslim.  And in relation to Counts 1 and Count 6 involved, say the

 9     Prosecution, the direct participation of all three accused.

10             The crimes charged in this indictment occurred in the context of

11     an armed conflict which existed from and including the 22nd of April,

12     1998, throughout Kosovo, between Serbian armed forces and the Kosovo

13     Liberation Army, of which all three accused were leaders.

14             The Kosovo Liberation Army was fighting what it considered was a

15     war of liberation, as its name implies.  The accused pursued that aim,

16     and in so doing sought to control, to the exclusion of enemy forces, the

17     area defined in the indictment as the Dukagjin Operational Zone, forming

18     part of the municipalities of Decani or Decan, Pec Peje, Djakovica

19     Gjakove, and Klina, Kline.  And, Your Honours, I will adopt simply for

20     ease of reference the Albanian version of the towns' names to avoid

21     having to repeat them all the time.  And, Your Honours, they did this by

22     suppressing real or perceived opposition.

23             While they were fighting a war and thus using legitimate force,

24     they also pursued illegal means to achieve their aim:  They mistreated

25     civilians who were or were perceived to be opposing the KLA.  This case

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 1     is about the implementation of the common purpose in the village of

 2     Jabllanice in the Gjakove municipality.

 3             Your Honours, I'd first like to orientate the Chamber, if I may,

 4     as to some of the geography in the area the subject of the indictment.

 5     Your Honours, showing on your screen now is a slide of the whole of

 6     Kosovo, and Your Honours can see that it shows all the municipalities and

 7     it also shows the national boundaries -- Your Honours, I hope it's on

 8     your screen.  I'm grateful.

 9             It also shows the national boundaries.  Your Honours can see

10     starting in the -- on the right-hand side of the page Serbia and then

11     going down south to Macedonia, across to the west, to Albania, and north

12     then into Montenegro.  And Your Honours can see to the west of Kosovo on

13     the borders with Montenegro and Albania, starting in the north, the

14     municipality of Pec, you can see the town of Pec really forming the

15     centre of that municipality slide.  Moving south into Decan and the town

16     of Decani marked just in pink.  And moving forward south from there to

17     Gjakove and the town Gjakove marked at the bottom in the centre, rather,

18     of that municipality.

19             And then if we travel north from Gjakove, you will find the

20     municipality of Kline.  And what is not shown on this particular side is

21     there is a road - and I will show you the next slide in a moment - there

22     is a road which joins Gjakove and Kline.

23             Your Honours, the area of Kosovo is about a quarter of the size

24     of the Netherlands, with a population of approximately 2 million.  And

25     Your Honours can see from this municipality map that the area that we're

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 1     concerned with is within about a quarter of the size of Kosovo itself.

 2     So we say it's a relatively small area that we're dealing with.

 3             Can I show you now the next map.  Your Honour, this is a map that

 4     the Prosecution have put together to try to identify or at least

 5     highlight the main towns and villages that you'll be hearing about.  One

 6     of the problems with the more detailed topographical maps is they're very

 7     crowded with lots of contour lines, and it's hard to see sometimes where

 8     everything is.  But just to orientate you around this map, if I may,

 9     starting on the left-hand side of the map to the top left-hand corner

10     you'll see the town of Peje.  And then if we travel along the red road,

11     and these are the main roads we say that are linking the main towns, we

12     travel along the main road to the east.  Imagine yourselves driving along

13     through Zahac, down to Zajmovo, which is marked by the rivers, in

14     conjunction with the rivers, and then just a little north to Kline.  Then

15     there's the village of Dolac and then we get back in the car and drive

16     south, passing Dolovo, carrying on the road and passing the Lake Radoniq

17     and then arriving in Gjakove.  Pausing briefly in Gjakove to point the

18     car back towards Peja and drive up to Decani.  And on the way to Decan on

19     the right you will see the village of Gllogjan.  That is the village in

20     which Mr. Haradinaj has his family home and which forms one of the

21     headquarters, we say, of the KLA in this case, not to be confused with

22     another Gllogjan, which is a Catholic village of Gllogjan, and I'll

23     identify where that is very shortly.

24             Your Honours, very broadly, we say, that within the red road

25     area, the KLA had through the indictment period substantial control of

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 1     that area.  Outside the red road area and along them represented areas of

 2     conflict with Serb forces.  Now, Your Honour, that's not to say that

 3     there was no conflict within the areas bounded by the roads, particularly

 4     in the west around Mr. Haradinaj's villages and in the Lake Radoniq area,

 5     but that the Prosecution says the KLA had a broad measure of control in

 6     that central area.

 7             Your Honours, can I take you back to the village of Zajmovo just

 8     south of Kline, back on the road there, and you'll see just to the west

 9     of Zajmovo on the other side of the river a village called Grabanice.

10     And Your Honours will hear a reasonable amount of evidence about the

11     events in Grabanice.  Travelling south-west from Grabanice, we come to

12     Catholic Gllogjan, and south of Catholic Gllogjan is Jabllanice, which

13     will form really the main centre-piece for the evidence that you'll be

14     hearing during this case.  And then south-west of Jabllanice is the

15     village of Zhabel, which you will also hear something about.

16             You can take the map off, please.

17             Your Honours, can I deal now a little with what the Prosecution

18     says is the evidence relating to the development of the KLA in this area,

19     the road-bounded area which broadly we call the Dukagjin area.

20     Your Honours, I will then, after I have dealt with that, turn to the

21     development -- first deal with the geographical control, forgive me, and

22     then I will turn to the development of the organisation of the KLA within

23     the Dukagjin area and address the consolidation of what we say is

24     Ramush Haradinaj's control of the KLA within that area.

25             Dealing first, if I may, with geographical control.

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 1     Your Honours, the first two KLA headquarters established in the Dukagjin

 2     were firstly in Jabllanice, in the Gjakove municipality, the oldest

 3     headquarters in western Kosovo, and under the control of Lahi Brahimaj,

 4     also known as Maxhup, or Gypsy, and he was Ramush and is

 5     Ramush Haradinaj's maternal uncle.  And secondly, in the village of

 6     Gllogjan, in Decan, under the control of Mr. Haradinaj, also known as

 7     Smajl.

 8             Your Honours, in 1998, Colonel John Crosland was the British

 9     military attache to the embassy in Belgrade.  He produced the map in the

10     last trial to show the area known as the Dukagjin between March and May

11     1998.  Your Honours, if I can show you, please, that map that he produced

12     in the trial.  He described the black line which overlaps in part of the

13     blue as showing the boundary of this area and said that throughout Kosovo

14     there was several groupings of the KLA and in particular of this area of

15     the Dukagjin.  He marked the blue line to show the Peje to Decani road as

16     a place where he described were "shoot and scoot tactics," that's the

17     phrase that he used, employed by the KLA against Serbian forces in the

18     early part of the conflict.  The road he described had become a thin red

19     line or a front line for Serbian forces, who were trying to prevent the

20     flow of men and materials from Albania where the Kosovo Liberation Army

21     was arming itself, into Kosovo itself.  And Your Honours will recall from

22     the first map that I showed you how close to the borders of Albania and

23     indeed Montenegro these municipalities are.

24             Serb forces, he said, had been unable to hold the mountainous

25     area along the Albanian border and had fallen back effectively along this

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 1     road, and he described many battles being fought along and around the

 2     road.  And Your Honours will note from this map that the village of

 3     Gllogjan, Ramush Haradinaj's village and the headquarters, is within the

 4     cluster of circles immediately to the right of the bottom half of the

 5     blue line.  In fact, you can see two rather poorly formed blue circles,

 6     and just to the right of those rather poorly formed blue circles is a

 7     circle and in there is the village of Gllogjan.  On a larger-scale map

 8     it's clearer to see, but I think Your Honours have the general picture.

 9             Your Honours will find all these maps in your bundle and in the

10     bundle it's at page 3.

11             Your Honours, as the KLA grew during 1998, it began to establish

12     control of parts of the territory of Kosovo.  And in relation to this

13     indictment, by April to May 1998 the KLA in the Dukagjin area had

14     established what we describe and others have described as a free area,

15     substantially free of Serb control.  Again, I make it clear that does not

16     mean there were not attacks and incursions, but nevertheless

17     substantially the area was under KLA control.

18             And Colonel Crosland, again in the first trial, drew a map to

19     indicate this area of control between about March and June/July 1998.

20     And again broadly you can see that the area marked in red inside the

21     boundaries of the three roads, and this is the area that Colonel Crosland

22     indicated, and you can see in there written KLA, was what he described as

23     basically a KLA area, and the Serbs would stay on the outside and attempt

24     to dominate and influence areas by shelling into that area.  He said:

25             "...  the Serbs took up a position that they could, if you like,

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 1     contain the fighters within this area by dominating the roads ... so

 2     Serbian security forces would go off the road a short way, make a raid,

 3     re-arrange a few houses rather badly," as he put it, "and then withdraw

 4     back out because they did not feel safe in that area."

 5             And, Your Honours, that's the 65 ter number 04022, and it's a

 6     transcript reference at page 3029.

 7             Indeed, Your Honours can see that Colonel Crosland's map shows in

 8     blue pockets of Serb forces along the road area, including near the

 9     southern part of Lake Radoniq and inside that area and in and around the

10     high ground to the south of that area.  And whilst there were incursions

11     into the area and indeed later full-scale assaults by Serb forces, the

12     Prosecution says broadly this was the zone of influence and control

13     established by the KLA with the Serbs on the outside.

14             Your Honours, in addition you will hear evidence from Nebojsa

15     Avramovic, who was a police officer working as a crime technician in the

16     Djakovica SUP, a part of the Ministry of the Interior forces, the Serbian

17     police.  He'd been in that position since 1996, and he produces a map as

18     an annex to his statement of roads that were regarded as unsafe by Serb

19     police between April and September 1998.  Your Honours should have that I

20     think on the screen now.  And Your Honours will see three markings, three

21     coloured markings, A, B, and C.  C represents the road from Djakovica to

22     Prizren at the bottom of the map, Djakovica being at the bottom.  I hope

23     Your Honours are now becoming familiar with what is really a triangle of

24     roads running between Djakovica, Peje, and Kline.  And at the bottom is

25     Djakovica.  The road running from Djakovica to Prizren marked C he said

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 1     was a road that was free to travel upon.  If it's easier for

 2     Your Honours, it's at page 5 of the map bundle.  It may be a little bit

 3     clearer, actually, there, but anyway.

 4             The area marked A, the portion of the Djakovica to Kline road

 5     which is marked A, he said was safe for Serb police to travel upon --

 6             JUDGE MOLOTO:  May I interrupt.

 7             MR. ROGERS:  Your Honours, forgive me.

 8             JUDGE MOLOTO:  Is -- where is A?  Is it on the left corner of the

 9     triangle?

10             MR. ROGERS:  It's on the -- yes, it's on the left-hand -- the

11     right-hand road, forgive me, running between Djakovica and Kline.  It's a

12     little unclear, but it's marked in orange or red.  Does Your Honour have

13     it?

14             JUDGE MOLOTO:  I'm grateful to you.  Thank you so much.

15             MR. ROGERS:  Thank you.  That's the section of the road running

16     from Djakovica to Kline.

17             JUDGE MOLOTO:  That's the safe area?

18             MR. ROGERS:  That's the safe area.  And if Your Honour remembers

19     the map I've just shown you where there were Serb forces noted by Colonel

20     Crosland in that southern part of this area, that may have some

21     correlation between those two things.  But north of that in the area

22     marked B, the witness describes that being -- as an area which he says

23     was completely blocked by the KLA from April to September 1998.  That was

24     his statement.  And, Your Honour, we say it is significant that in that

25     area marked B two of the victims in the indictment were abducted.  They

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 1     were Witness 6 and Nenad Remistar, a Serb traffic police officer.

 2             I should indicate, Your Honours, that the map -- this map isn't

 3     presently on the 65 ter list because it was omitted from -- by accident

 4     from Mr. Avramovic's statement.  I will move in due course to admit it

 5     formally, but I mention that now in case so there's -- in case my learned

 6     friends are trying to find it.  It has been disclosed.

 7             MR. GUY-SMITH:  Nowhere is it part of the 65 ter statement with

 8     regard to this statement.

 9             MR. ROGERS:  It is.  We'll deal with that later.

10             Your Honours, the Prosecution, moving on, says it can be seen by

11     looking at Colonel Crosland's maps, assessing his evidence, and looking

12     at other maps and evidence produced by KLA commanders and Serb commanders

13     there is a general consensus about the broad areas of control established

14     by KLA forces between April and September 1998 and broad agreement as to

15     where the confrontation lines ran.  Essentially there was a free area in

16     which the KLA had greater freedom to operate away from the confrontation

17     lines.

18             Your Honours, turning now to organisational development of the

19     KLA.  Your Honours, Colonel Crosland described the KLA in the early part

20     of 1998 as a fledgling organisation.  Your Honours, the evidence will

21     show that during the period between March 1998 and September 1998 the KLA

22     was developing into a more organised force, from village-based commands

23     to more regional commands, and a more military-style hierarchical

24     leadership.

25             KLA witnesses including Rrustem Tetaj, Jakup Krasniqi show that

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 1     between March and April 1998, villagers in many villages in the Dukagjin

 2     area began to organise themselves in support of the KLA into defence

 3     units, often electing a village commander, appointing guards, and setting

 4     up check-points at village entrances.  The KLA also had a General Staff,

 5     but at least until June 1998 the General Staff had no main building.  All

 6     three accused were commanders within the KLA.  Ramush Haradinaj, based in

 7     Gllogjan; Lahi Brahimaj, based in Jabllanice; and Idriz Balaj, who had

 8     moved from Jabllanice to Gllogjan and had been appointed as commander of

 9     a special unit known as the Black Eagles by Ramush Haradinaj.

10             Just as the KLA, Your Honours, began to consolidate its control

11     over the Dukagjin area, so too Ramush Haradinaj consolidated his control

12     over the KLA.

13             Your Honours, it's significant, the Prosecution says, that

14     Ramush Haradinaj, together with his maternal uncle, Lahi Brahimaj, had

15     been at the forefront of the development of the KLA in the Dukagjin area

16     since the earliest days of the KLA as a movement in 1994.  In the

17     Dukagjin area, the subject of the indictment, the Prosecution says the

18     organisation of the KLA was greatly assisted by the two main headquarters

19     being within the same extended family.  Gllogjan, controlled by

20     Ramush Haradinaj, and Jabllanice by Lahi Brahimaj, his maternal uncle.

21             Within the Kosovar Albanian clan-based culture, the Prosecution

22     says these familial ties have great significance.  Indeed, witnesses

23     describe being married not just to an individual but to an entire

24     village.

25             The Prosecution says it's quite clear that these familial ties

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 1     lay at the heart of the initial organisation of the Dukagjin Zone and its

 2     headquarters.

 3             In a compilation of interviews with Ramush Haradinaj entitled "A

 4     Narrative About War and Freedom" --

 5             MR. EMMERSON:  Sorry, I think Mr. Rogers is aware, because I

 6     indicated to him in advance, that I would at this stage rise because he

 7     is about to seek to present, we say again misleadingly, to the

 8     Trial Chamber a document which he suggests is a series of interviews but

 9     is in fact a book published by a journalist called Bardh Hamzaj.  There

10     is no evidence - and the Prosecution has none - from the author of this

11     book as to the provenance of the contents.  There is no evidence as to

12     the source of the descriptions or statements he attributes to

13     Ramush Haradinaj.  There is nothing to suggest that the book was

14     authorised or ever adopted by Ramush Haradinaj or written with his

15     authority.  And for that reason, the previous Trial Chamber, rightly,

16     regarded it as worthless evidence and excluded it on the basis it was

17     impossible to understand what ought to be clear as to its provenance or

18     to be in a position to distinguish between truth, falsity, hyperbole, or

19     fact, propaganda, or accurate reporting and that there was nothing to

20     corroborate it.

21             So that before Mr. Rogers again, I say misleadingly, launches

22     into the suggestion that this is a record of interview, it's rights right

23     that Your Honours should know it is nothing of the sort, it is again

24     forensic rubbish, and it's material about which there is an outstanding

25     application of exclusion in which the Defence rely precisely the same

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 1     arguments that persuaded the previous Trial Chamber to throw it where it

 2     belongs, namely, in the bin.

 3             JUDGE MOLOTO:  Mr. -- I just want you to respond to that

 4     objection.

 5             MR. ROGERS:  Yes, let me.  You would like me to respond?

 6             JUDGE MOLOTO:  If you wish to.

 7             MR. ROGERS:  Yes, Your Honours, of course this is an opening.  In

 8     due course, no doubt, there will be litigation about whether or not the

 9     document should be admitted.  It's a slightly puzzling position on the

10     part of the Defence because my understanding is that in the original

11     trial there was no dispute as to the authenticity or admissibility of the

12     book initially until my learned friends took objection to it at some

13     later point in the course of the proceedings --

14             MR. EMMERSON:  Simply wrong I'm afraid.

15             MR. ROGERS:  I don't think so.

16             JUDGE MOLOTO:  Okay.

17             MR. ROGERS:  But in any event, Your Honours, we can litigate this

18     in due course when it comes to it.

19             JUDGE MOLOTO:  Let me just make a general comment.  I find the

20     opening to verge on testifying and introducing exhibits which are not

21     marked as exhibits yet but which are documents that make an impression in

22     the mind of the Chamber.  And to the extent that at this point there is

23     now a dispute about the authenticity and the provenance, the relevance of

24     the book that you are about to refer to, the Chamber feels constrained to

25     apply the rules of admissibility before it allows you to continue talking

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 1     about that.  You've got to authentic it.  You've got to bring in a

 2     witness to say he's the author of the book.  All the requirements for

 3     admissibility.  Because we -- the Chamber cannot accept that we hear what

 4     you are going to say only to throw the book out later.  The book might be

 5     out, but the mind -- it's still in the mind.  And the purpose for

 6     admissibility is to make sure that the mind of the Chamber is not

 7     coloured by what might turn out to be inadmissible.

 8             MR. ROGERS:  Your Honours, my understanding is that in this

 9     Tribunal often the practice has been for documents and for material which

10     is on the 65 ter list to be referred to during the course of the opening

11     because Your Honours of course are professional Judges that are able --

12     well able to take away from your minds such things that may or may not in

13     due course be ruled to be admissible.  And for that reason, these

14     documents and documents like it are normally permitted to be opened

15     during the course of the opening and in due course if there are any other

16     matters which need to be removed, then they are removed at the stage at

17     which the evidence is litigated.  Your Honours, much of the evidence in

18     this case is hotly contested.  There are a large number of outstanding

19     applications relating to admissibility of evidence at a very early stage

20     in the proceedings, and none of those have yet been decided.

21             So, Your Honours, my submission is that Your Honours should hear

22     the opening.  It may assist Your Honours to determine admissibility in

23     any event to hear what the relevance and the contexts of the documents

24     are and then to -- in any event, to adjudicate in due course.  Because we

25     say that the material that I'm putting before Your Honours is highly

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 1     relevant and that the authenticity of the document can be established and

 2     we can litigate whether or not it was admitted at the last trial.  But my

 3     recollection is it was --

 4             MR. EMMERSON:  I'm so sorry.  It's really worrying when the

 5     Prosecutor stands up to make an opening submission in which according to

 6     this document he has no less than five separate extracts of this book and

 7     he doesn't even know, despite the fact that we've pleaded it in our

 8     opening brief, that this document was excluded on grounds of having no

 9     probative weight.  That is a staggering state of affairs, frankly, from a

10     man opening a case for the Prosecution.

11             JUDGE MOLOTO:  Can I just make a few comments.  First of all, I

12     just want to say I accept that the Chamber is composed of professional

13     Judges who are able to disabuse their minds of things that are

14     irrelevant.  However, it is also constituted of human beings, and you

15     will realise that in the guide-lines that have been given, the whole

16     question of MFI-ing documents is being forbidden precisely for that

17     reason.  If you are going to get one document you may be able to disabuse

18     our minds of its contents.  If we are going to get 150, it becomes pretty

19     difficult, humanly impossible to do so, and therefore this Chamber

20     intends to keep to a very bare minimum any documents that come in which

21     may later have to be thrown out.

22             MR. ROGERS:  Your Honour --

23             JUDGE MOLOTO:  May I finish my comments?

24             MR. ROGERS:  Forgive me, yes.

25             JUDGE MOLOTO:  I just want to reiterate what the Chamber

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 1     mentioned yesterday, this is a new trial, and anything that has to be

 2     proved here has to be proved here.  The arguments that things were proved

 3     in the previous trial do not make any sense at all and reference to the

 4     fact that things were thrown out, therefore they must be thrown out here

 5     doesn't make any sense.  I would like -- will you please let me finish,

 6     Mr. Emmerson?

 7             Anything that is objectionable must be objected to here and the

 8     ruling will be made here, and the ruling of this Chamber is not going to

 9     be dependent on whether the ruling of the previous Chamber was consistent

10     with our ruling.  I just want to make that quite clear to all the parties

11     right at the beginning.

12             MR. EMMERSON:  Your Honour, we have, I hope, A, entirely

13     understood that, and B --

14             JUDGE MOLOTO:  You don't behave like you do.

15             MR. EMMERSON:  Well, can I just be absolutely clear on what we do

16     understand the position to be.  The ruling of the Appeals Chamber

17     indicates that whilst the Prosecution is not precluded from seeking the

18     admission of evidence that was excluded in the previous trial, the fact

19     that it was excluded in the previous trial will be a material

20     consideration for the new re-trial Chamber in determining whether its

21     admission is justified according to different standards of relevance.

22     That is the test that the Appeals Chamber laid down in its most recent

23     ruling.  It therefore cannot simply be said that the previous trial

24     rulings are irrelevant.  What is most troubling is that there is a basic

25     minimum of professional duty on Prosecution counsel to acquaint

Page 228

 1     themselves with what is the factual position on the document they are

 2     seeking to rely upon.

 3             I am assuming that Mr. Rogers did not intentionally intend to

 4     mislead the Trial Chamber, but there can be no question but that he is

 5     aware, because it says so in our opening brief, A, that objection is

 6     taken to the admission of this document, and B, that it was excluded by

 7     the previous Trial Chamber on the grounds it was probatively rubbish, if

 8     I can paraphrase your -- provide Your Honours with the ruling.

 9     Your Honours will want to consider that ruling in accordance with the

10     Appeals Chamber judgement to determine whether the Prosecution has laid

11     down some different evidential foundation justifying a different approach

12     because otherwise we'd have two Trial Chambers reaching opposite

13     conclusions on precisely the same legal and factual material.

14             JUDGE MOLOTO:  And that happens every day.

15             MR. EMMERSON:  Well, it can happen, but no Trial Chamber would

16     want to do that without first acquainting itself, as the Appeals Chamber

17     indicated, with the course of the proceedings before.  But be that as it

18     may, for Mr. Rogers to stand up and put it forward to Your Honours on the

19     basis, A, that there was no objection in the previous trial, and B, that

20     the mattered document was not excluded, it indicates at best a

21     significant lapse of professional standards and leads me to a more

22     general concern.

23             Your Honours will see in this bundle at page 22 another map

24     hand-drawn.  This map, this is the bundle of exhibits that the

25     Prosecution proposes to put before you in opening.  This map was drawn by

Page 229

 1     Shefqet Kabashi as a part of his witness statement.  Now, that witness is

 2     due to testify tomorrow, and as Mr. Rogers well knows there are very

 3     serious reasons to doubt whether he will in fact do so.  So for him to

 4     seek to introduce before Your Honours as though it were evidence what is

 5     in effect part of the statement of a witness who he knows he may be

 6     unable to call --

 7             JUDGE MOLOTO:  May I interrupt you, Mr. Emmerson.  This is not

 8     the time for the Defence to argue its case or to make --

 9             MR. EMMERSON:  Of course not.

10             JUDGE MOLOTO:  We are on an objection of one book and I'm not

11     looking at that map you have just shown to me.

12             MR. EMMERSON:  Very well.

13             JUDGE MOLOTO:  We are on the objection of the book that

14     Mr. Rogers is about to talk about, about which you stood up to object.

15             MR. EMMERSON:  Yes --

16             JUDGE MOLOTO:  Just give me a chance.

17             You stood up, I was -- I said to Mr. Rogers can I make a few

18     remarks, and you stood up before I made my last remark, which was going

19     to be a repetition of what I had said a little earlier to Mr. Rogers, and

20     I think what you are doing, you are going over and over again same issue

21     using different exhibits.  If you can just listen to what I'm saying and

22     let me -- let the Chamber make a ruling on what Mr. Rogers is about to

23     do.

24             MR. EMMERSON:  I'm entirely in Your Honours' hands.

25             JUDGE MOLOTO:  Thank you so much.

Page 230

 1             Mr. Rogers, I remind you the last comment I wanted to make, I

 2     think it is important, therefore, where there is a dispute between the

 3     parties about the admissibility of a document that it be admitted in the

 4     normal course.  I do not agree with you that the Chamber can read the

 5     document to determine its admissibility.  Admissibility is determined

 6     before the document is tendered, and only on -- on being admitted may it

 7     be published to the Chamber.

 8             MR. ROGERS:  Your Honours, I understand that, but it's quite

 9     normal to put before the Court, I believe, documents that the Prosecution

10     intends to rely upon during the course of the trial as part of the

11     Prosecution's opening, and often there is contests about the

12     admissibility of those documents and the weight or whatever that may be

13     attached to them.

14             Your Honours, I must take up Mr. Emmerson because he's made a

15     number of very serious allegations against me personally.  Your Honours,

16     I entirely agree with him that it is incumbent upon counsel to check

17     their facts, and I did check my facts, and I have in front of me an

18     e-mail sent by Mr. Emmerson and Mr. Dixon on the 9th of January, 2007, in

19     the course of the last trial dealing specifically with the book that I am

20     referring Your Honours to in which they state it is admitted by the

21     Defence for Ramush Haradinaj that the book entitled "Story of War and

22     Freedom" from which I am quoting was compiled from a series of interviews

23     with Mr. Haradinaj by Bardh Hamzaj.  There is no dispute as to the

24     authenticity or admissibility of the book in its entirety.

25             How or why the Trial Chamber failed to admit it in the last

Page 231

 1     occasion I don't know, but they did and they took their own decision for

 2     their own reasons but that's my understanding [Overlapping speakers] --

 3             MR. EMMERSON:  I'm sorry, for the sake of the record that is

 4     simply wrong.  There was no agreed fact to that effect, and if

 5     Mr. Rogers --

 6             JUDGE MOLOTO:  Mr. Rogers has not alleged it's an agreed fact.

 7     He alleges an e-mail coming from you --

 8             MR. EMMERSON:  It's absolutely clear that objection was taken

 9     during the trial and the decision on the Prosecution's motion to tender

10     documents on its Rule 65 ter exhibit list of the 30th of November, 2007,

11     at paragraph 6 to 7 excluded that document on the grounds that it lacked

12     any probative weight.

13             MR. ROGERS:  I agree it was excluded.  It's a remarkable decision

14     in the context of what was admitted by the Defence and the clear

15     relevance and probative value of what the defendant himself has to say

16     about the organisation of this zone, the relationship between himself and

17     his uncle, Lahi Brahimaj, and others who are also subject to this

18     indictment.  And, Your Honour, respectfully to try to rule it out at this

19     stage of the proceedings would be wrong.  Your Honours should hear what

20     it has to say, especially in the light of the fact there appears to be no

21     objection to authenticity.  Whatever the arguments may have been that

22     were taken up last time around, I'm surprised my learned friend is

23     reverting to arguing that it should not be admitted, given the clear

24     statement that it's not -- that it's authentic.

25             JUDGE MOLOTO:  I see you, Mr. Guy-Smith.

Page 232

 1             I just want to say this to you, Mr. Rogers, the Chamber is not

 2     saying you may not tender that document.  The Chamber is saying you got

 3     to tender it and prove its admissibility before you tender it.  The

 4     practice of not just referring to a document that will be used but

 5     actually wanting to give the content of that document in opening

 6     undermines the whole process of admissibility of evidence into the

 7     record.  And this Trial Chamber I would imagine would allow you to make

 8     reference to the document that that book, to say that it will be used.

 9     And at the appropriate time when you do have a witness through whom you

10     can tender the document, do so.  That way we will hear that later doesn't

11     make any difference from hearing it now.  The only difference is that you

12     want us to hear it now before it's an exhibit.  That's my problem.  And

13     you are welcome to say you will be tendering a document, a book, that is

14     going to tell us what you think you -- the Trial Chamber should know

15     about Mr. Haradinaj, but not try to tender it now when you don't have

16     [Overlapping speakers] --

17             MR. ROGERS:  As an exhibit.  I can deal with it in that way --

18             JUDGE MOLOTO:  Thank you so much.

19             MR. ROGERS:  -- in which case.  Your Honours, in that case I will

20     deal with it like this --

21             JUDGE MOLOTO:  In deference to Mr. Guy-Smith.

22             MR. GUY-SMITH:  Thank you, Your Honour.  I believe that the

23     colloquy that you just had with Mr. Rogers takes care of my point.

24             JUDGE MOLOTO:  Thank you.

25             MR. GUY-SMITH:  I was going to suggest we are dealing with

Page 233

 1     opening statements and not with arguments about the admissibility of

 2     evidence at this point in time.

 3             JUDGE MOLOTO:  Thank you very much.

 4             MR. ROGERS:  Your Honours, can I deal with it like this.  During

 5     the course of the trial the Prosecution will produce to you a document in

 6     which the Prosecution says the accused Ramush Haradinaj indicated that he

 7     was the -- one of the first persons in the Dukagjin group along with

 8     Lahi Brahimaj, his uncle.  And that together he and Lahi and his other

 9     relatives, they established the 1st Dukagjini group of the KLA.  He also

10     speaks, we say, of his return to Kosovo from Albania and in -- the

11     Prosecution suggests that when he first returned he went to Jabllanice

12     where he spent days checking equipment and that he accepted individuals

13     into the organisation of the KLA, and those people included

14     Lahi Brahimaj, Shkelzen Haradinaj, and Luan Haradinaj.

15             There was then a period of time when he continued his activities

16     outside of Kosovo between 1994 and 1998 and then returned to Kosovo to

17     where, we suggest, he had created the first base and the base he had

18     assisted in developing in Jabllanice.  And he developed his network, a

19     document we suggest says that he helped create the network in the

20     Dukagjin area, and worked in close co-operation with his brother Daut,

21     Shkelzen Haradinaj, and Lahi Brahimaj, also known as Maxhup.

22             Your Honours, when the Haradinaj family compound in Gllogjan was

23     attacked on the 24th of March, 1998, by Serb forces, Mr. Haradinaj was

24     seriously injured.  Indeed, soldiers from Jabllanice were sent to

25     Gllogjan to help repel the attacks, but it was in Jabllanice that he and

Page 234

 1     others sought refuge.  It was in Lahi Brahimaj's home, away from the

 2     confrontation lines, in the relative safety of Jabllanice that he

 3     recovered from his injuries.  Inevitably, as the armed conflict

 4     progressed, we say, the nature of the close co-operation between the two

 5     headquarters and the family network changed.  Rrustem Tetaj, a former

 6     career JNA artillery officer and KLA commander will describe the changing

 7     nature of the command structure of the KLA.  He will recall going to

 8     Gllogjan in April 1998, shortly after the Serb attack on the Haradinaj

 9     family compound, which was in March 1998, in order to join the KLA.

10     There he was introduced by KLA soldiers in Gllogjan to Ramush Haradinaj

11     as the commander.  And at this meeting with Ramush Haradinaj, also

12     present with him was Idriz Balaj, introduced by Mr. Haradinaj to

13     Mr. Tetaj as Togeri or Toger, whom Ramush Haradinaj described as a person

14     experienced in warfare.

15             Your Honours, Mr. Tetaj will say that he was accepted as a KLA

16     member and commander in the immediate area of the Gllogjan headquarters.

17     And he describes, together with another KLA commander, Shemsedin Cekaj,

18     the organisation of the KLA moving from village-based commands who were

19     co-operating together, to a more formal subzone structure under the

20     authority of subzone commanders.  This occurred towards the end of May

21     1998 at a meeting organised by Ramush Haradinaj, where both Mr. Tetaj and

22     Mr. Cekaj became subzone commanders, as did Ramush Haradinaj himself.

23     Another subzone commander will give evidence that village commanders

24     reported to the subzone commanders and that Ramush Haradinaj would be in

25     charge of the zones.  What is clear is that Ramush Haradinaj was seen at

Page 235

 1     this time as a person with significant influence in the area and one to

 2     whom great respect was owed within the Albanian culture.

 3             Shemsedin Cekaj preferred in the last trial to adopt

 4     Mr. Emmerson's suggestion when cross-examined that it was

 5     Ramush Haradinaj that was trying to organise things in that area and that

 6     the relationship at this time was that of Ramush Haradinaj being first

 7     among equals.  Cekaj stated in the course of evidence that

 8     "Ramush Haradinaj was someone who was very important and enjoyed great

 9     respect."

10             Your Honours, can I show you now, please, a map showing the

11     division of the subzones in May 1998.  It's a map that was drawn by

12     Mr. Tetaj in the last trial, and he explained - just give me a moment to

13     turn it up in the book - it's page 9 in the map book.  Your Honour, we

14     can in due course produce larger versions of this to make it a little bit

15     more clearer, but if Your Honours look to the left of the map and in the

16     area where you now know the Gllogjan headquarters to be, you will see

17     that he has drawn on the map a subdivision of that area, and you can see

18     that they marked 1, 2, 3, and 4.

19             Starting at the bottom, it's a little unclear but there is a

20     number 1 in the middle of the circle.  You can see the slightly hatched

21     area to the right, and then if you just come into the centre of the

22     circle you can actually see a number one.  Above that is 2, 3, and 4.

23     Now, he explained, Mr. Tetaj, that it was agreed that Ramush Haradinaj

24     would become the commander of subzone 1, that he, Tetaj, would be the

25     commander of subzone 3; and that Shemsedin Cekaj would be the commander

Page 236

 1     of subzone 2.  Your Honours, it perhaps doesn't matter at this stage who

 2     the commander of subzone 4 was, but you can see it was divided in May of

 3     1998 into this area.  And Your Honours, this subzone organisation

 4     continued through May 1998.  And we say that Ramush Haradinaj, and the

 5     evidence will show by looking at minutes of various meetings that were

 6     held, and the testimony of witnesses that spoke about this, that

 7     Mr. Haradinaj recognised that whilst he had established formal control of

 8     the subzones around Gllogjan, the family ties with the Jabllanice

 9     headquarters were no longer sufficient for the efficient operation of the

10     whole zone, thus requiring the establishment of a formal structure to

11     control the whole area.

12             And, Your Honours, we submit that in evidence that we hope will

13     be admitted in due course in relation to what Mr. Haradinaj himself may

14     have said about this, that the -- by the 23rd of June he had managed to

15     establish control of the subzones and consolidated them to the point

16     where he was able to unify KLA headquarters.  And that that had occurred

17     by the 23rd of June and from the 23rd of May 1998.  And as that

18     developed, he then began to oversee in a more authoritative manner the

19     activity of the Jabllanice headquarters itself to balance it between

20     Jabllanice and Gllogjan.

21             So essentially, midway through this indictment period

22     Mr. Haradinaj, the Prosecution says and evidence will show, that he had

23     consolidated by the end of the indictment period complete control of the

24     two areas of the Jabllanice and Gllogjan and that transisted over the

25     course of the indictment period.  By the middle of the indictment, and

Page 237

 1     particularly with the counts, by the middle of that period he had

 2     consolidated control over both.

 3             And he describes in a -- well, there's a minute at least of a

 4     meeting in which he is recorded as saying -- this is a meeting on the

 5     23rd of June, 1998, in Jabllanice.  It's on Your Honours' screen now.

 6     Obviously we haven't put all of the minute there.  We've just taken the

 7     relatively parts, we say.  It's the 23rd of June, 1998, in Jabllanice.

 8     We've just put the top section so you can see who it's said were present.

 9     This is in e-court 00141 at page 2.  So you can see who was present and

10     that's translated.  And then there's a handwritten part which starts

11     "Ramush Haradinaj" and the translation shows underneath that at this

12     meeting he was saying:

13             "In order to help one another in future we have to supply the

14     entire people with weapons, 16 years old and above."

15             And then this:

16             "Other things, we need to be positioned well, organised.

17     Friendly and family connections are not enough.  I can help as a friend

18     or a relative, but I cannot make someone else do the same."

19             And then there's a reference to territory which I needn't trouble

20     Your Honours with.  It's there for completeness.

21             Your Honours, we say this shows that there was a transition and a

22     recognition on his part that there was a need for formal organisation to

23     move away from what were family connections, family ties, and a more

24     loose organisation to something that needed to function better and that

25     this occurred on the 23rd of June, 1998.

Page 238

 1             Your Honours, now turning to speak a little bit more about the

 2     accused themselves.  Your Honours, I've already indicated that

 3     Mr. Haradinaj was, we say, one of the founder members of the KLA

 4     resistance movement together with his uncle and that, as a result of the

 5     fire-fight that took place -- and witnesses will say that as a result of

 6     that fire-fight that took place at his family compound, that his

 7     reputation within the area grew.  They describe how KLA soldiers and the

 8     population in general regarded Ramush Haradinaj's actions as heroic acts

 9     of defiance effectively and came to revere him as a commander of the

10     zone.  As one KLA member Witness Hasanaj described it:  "God in heaven,

11     Ramush on earth."

12             As he continued his organisation of the area and consolidated his

13     control on the 26th of May, 1998, Mr. Haradinaj became leader first of

14     all of the Gllogjan regional staff encompassing the subzones already

15     described and in that capacity exercised authority over military and

16     civilian matters.  Gradually he expanded and then established more formal

17     control on the 23rd of June, when at a meeting with the Jabllanice staff,

18     and the minutes will be adduced in evidence, Mr. Haradinaj was

19     appointed - and I'm not sure that this is particularly in dispute but my

20     learned friends will indicate later - was appointed as commander of the

21     operative staff of the Dukagjin Plain formalising his overall command of

22     the Dukagjin zone, including Jabllanice and the new formations

23     headquarters were based in Gllogjan.

24             Lahi Brahimaj, also known as Maxhup, was the commander of the

25     KLA's strategic stronghold in Jabllanice during the indictment period the

Page 239

 1     Prosecution says.  He was also a member of the KLA General Staff as

 2     finance director.  It comes from a number of witnesses, including

 3     Zoran Stijovic, Petar Shala and others.

 4             At the meeting of the 23rd of June, Mr. Brahimaj briefly became

 5     the deputy to Mr. Haradinaj before he was replaced by Mr. Haradinaj some

 6     sort while later by Nazmi Brahimaj, Lahi Brahimaj's brother.

 7             Idriz Balaj, also known as Toger, was initially recruited as a

 8     KLA training officer based in Jabllanice where he trained new KLA

 9     soldiers.  Your Honours will hear evidence or receive evidence from

10     Petar Shala and Zoran Stijovic about that.  After the 24th of March 1998

11     attack on the Haradinaj compound, he transferred to Jabllanice from

12     Gllogjan.  Your Honours, we say that indicates how the headquarters were

13     co-operating even before the 23rd of June.

14             On the 24th of April, 1998, Mr. Haradinaj appointed Mr. Balaj as

15     the commander of the Black Eagles, a rapid reaction unit, and that comes

16     from a number of sources, Mr. Shala, Mr. Haskaj, Mr. Cekaj, and others.

17     And Your Honours will recall it is he who sat with Mr. Haradinaj when

18     Rrustem Tetaj came to offer his experience as a former JNA officer in the

19     Yugoslav Army to develop the fighting capability of the KLA.  Indeed,

20     Mr. Balaj was often seen together with Mr. Haradinaj throughout the

21     indictment period, and a number of witnesses will testify to that,

22     Witness 17, 80, Kabashi, 29, Pappas, and Stijovic.

23             It is Tetaj that speaks of Togeri, as amongst other things, a man

24     who had a repetition for kidnapping and killing Albanian Serbs and Roma

25     in the Dukagjin area in 1998.  He also said that he had not himself

Page 240

 1     witnessed these things and that many bad things were laid at the door of

 2     Togeri.  In fact, he said this:  "Everything bad that happened was

 3     attributed to him."  It doesn't mean, Your Honours, that it wasn't done

 4     by him.  I accept that.  But evidence of general reputation is

 5     admissible.

 6             He confirmed, however, that Toger and his men were entering

 7     villages looking for people who were wanted and that he had seen names

 8     written in Toger's notebook, but he did not know why they were there.  He

 9     confirmed that there were lists of people circulating that had been drawn

10     up to compromise individuals.

11             Your Honours, it's the Prosecution case that throughout the

12     indictment period regardless of the issue of formal control that the

13     accused worked closely together to advance the goals of the KLA in the

14     Dukagjin area which included through the commission of crimes and at the

15     detention facility those crimes being committed in particular at the

16     detention facility which had been established in Jabllanice.

17             Witnesses describe Ramush Haradinaj, Idriz Balaj, and

18     Lahi Brahimaj together at Jabllanice at the place in which the detention

19     facility was located, which was a property owned by a relative of

20     Lahi Brahimaj and is central to the crimes charged in this case.

21             Your Honours, it's the Prosecution case that these accused sought

22     to establish KLA control of the zone, not just through an armed struggle

23     against Serbian forces, forces that they regarded as occupying powers,

24     but also through the brutal elimination of opposition by civilians who

25     were or were perceived to be collaborating with Serb forces or otherwise

Page 241

 1     not supporting the KLA, regardless to be whether they were Serb, Roma,

 2     Egyptian/Ashkali, or Kosovar Albanian.

 3             They thus pursued a common criminal purpose which involved

 4     commissions of crimes against persons perceived to be spies and

 5     collaborators with Serbia or Serb forces or otherwise considered not to

 6     be supporting the KLA.  Members of the KLA abducted, interrogated, and

 7     mistreated those persons and often murdered them.  And these acts of

 8     violence created an atmosphere of fear and intimidation within the

 9     population of the Dukagjin zone and elsewhere in Kosovo where the KLA was

10     operating.

11             Your Honours, within the free area described by the witnesses I

12     have already addressed, away from the immediate confrontation lines, the

13     KLA were able to act more openly.  As Shemsedin Cekaj put it:  "Along the

14     main road, Peje to Decani to Gjakove, the villages that were close to the

15     road were at risk, and the KLA soldiers were positioned there, in those

16     villages, while in the internal parts they could carry out other duties,

17     secondary duties, or be with their families.  So the situation was like

18     that, that they also carried out other duties, family duties, or other

19     personal business."

20             Your Honours, we say that with that greater freedom, the KLA and

21     these accused could consolidate their control of the area through the

22     rooting-out of opposition whether it be Serbs, Albanians, or other

23     ethnicities, and those suspected of collaboration or treachery in any way

24     were targeted.  Indeed, from 1994 the KLA had publicly claimed

25     responsibility for murders and other attacks against collaborators and

Page 242

 1     others not supporting the KLA through its communiqués, which have been

 2     put into the evidential bundle of the 65 ter lists, and to the KLA

 3     communiqués to the Kosovar Albanian and Serb populations published in the

 4     media between 1994 and 1998.

 5             For example, on the 11th of December, 1997, the KLA introduced

 6     itself in its communiqué number 40 by announcing that it had turned "the

 7     barrel of a gun against the invader and traitors."  That's -- comes

 8     within the 65 ter numbers of 00953, 00931, 00340, pages 3324 to 3325.

 9     Throughout 1998 the KLA announced and claimed responsibility for attacks

10     and punitive measures against collaborators, and they claimed

11     responsibility for attacks against Serbian police.  On the 4th of March,

12     1998, the KLA General Staff publicly declared "death to enemies and

13     traitors."  That comes from Jakup Krasniqi, 00328, page 37, and

14     elsewhere.

15             The threatening language of the communiqués, we say, leaves no

16     room for doubt as to what will happen to those suspected of

17     collaborating.  In its communiqué number 42, it declares that on 13th

18     February 1990, but given the context, Your Honours, it must be 1998,

19     Mustafe Kurti, a collaborator with the occupier, was liquidated.  And

20     immediately underneath, on 19 February, 1998, the criminal

21     Nebojsa Cvejic, a member of the Serbian police force was liquidated at

22     Luzhan near Podujeve.

23             In a communiqué in December 1997, the KLA declared that on the

24     evening of 28 November 1997, Dalip Dugolli, a collaborator and one of

25     Milosevic's most trusted men, was killed.

Page 243

 1             And in its communiqué number 39 from November 1997 the KLA

 2     declared:  "The Albanian nation abhors the aggressor and its terrorism;

 3     it detests and despises traitors and betrayal that jeopardise and risk

 4     the fate of our liberation war."

 5             Your Honours, it's clear that the targeting and elimination of

 6     collaborators was threatened and encouraged from the earliest beginnings

 7     of the KLA.

 8             And it's also clear that this aim continued into 1998.  In

 9     particular, the KLA issued a further communiqué, number 47, from Pristina

10     on the 12th of May 1998, and published in Pristina in the Koha Ditore

11     newspaper in Albanian on the 13th of May, 1998, in which the KLA

12     declared -- Your Honours have there the document which is in e-court

13     00328, and then we've taken the part that we are wishing you to look at.

14     And in there it says:

15             "On the orders of the UCK, UCK or KLA General Staff, successive

16     operations against invasion troops were carried out in operational zone

17     number 1, that is the operational subzones of Drenice, Erenik, Dukagjin,

18     Pashtrik, and Llap.  In the course of bitter fighting on the front, the

19     invading forces suffered major human and material losses.  Throughout

20     this period, operations were also carried out against Albanian

21     collaborationists who, despite earlier warnings, did not abandon their

22     anti-national courses of action."

23             Your Honours, in addition, contemporaneous Serb security service

24     and police reports - and I am conscious of what Mr. Emmerson said

25     yesterday about those documents and the source of the content of them,

Page 244

 1     but nevertheless Mr. Stijovic and other Serb police witnesses produce a

 2     large number of reports, for what they are worth, in which there are

 3     complaints of violence and intimidation by members of the KLA and against

 4     those not supporting them or deemed spies and collaborators --

 5             JUDGE MOLOTO:  If I may just interrupt you?  Would that be a

 6     convenient time to take a break?

 7             MR. ROGERS:  Your Honours, if I may have five minutes and then it

 8     will be because I'll be turning to the counts.  I may not even be five

 9     minutes.

10             Your Honours, the fact such targeting was carried out in the

11     Dukagjin zone in July 1998 is borne out in the evidence of Witness 17.

12     He described being given a list in July 1998 by the KLA commander of

13     Baran valley area, Din Krasniqi, who the Prosecution says had been

14     appointed by Ramush Haradinaj.  Your Honours will get that from the

15     evidence of Mr. Hasanaj.  And on that list were a number of wanted

16     persons, some variously described as collaborators.  Amongst those on

17     that list was Zenun Gashi who was also abducted by the KLA and whose body

18     was later recovered, among others, at the Radoniq lake, and there will be

19     evidence relating to his abduction and death in this case.  And also on

20     that list was Skender Kuci who is a named victim in Count 5.  He was seen

21     at Jabllanice, and there he was beaten and tortured and ultimately

22     murdered whilst in KLA custody.

23             Your Honours, in the context of this conflict which also involved

24     the legal use of force, the Prosecution says these accused adopted

25     illegal means to achieve their goal of control.  Those illegal means are

Page 245

 1     described in the indictment and they form the subject of the six counts

 2     which I'll be turning to very shortly, and it's through the adoption of

 3     those illegal means that the accused became part of the joint criminal

 4     enterprise.  Indeed, they worked together to torture, cruelly treat, and

 5     murder those considered traitors to the KLA cause.  Each of the accused

 6     shared the intent to murder, cruelly treat, and torture the victims.

 7     Haradinaj, Balaj, Brahimaj, other KLA soldiers, including other members

 8     of the Brahimaj family worked together to suppress and eliminate

 9     perceived opponents through murder, cruel treatment, and torture

10     committed at the detention facility in the KLA barracks in Jabllanice.

11             And, Your Honours, the crimes to which I will now turn are

12     examples of the suppression and elimination of the perceived opposition

13     by the KLA.

14             And, Your Honours, that is, I hope a convenient moment.

15             JUDGE MOLOTO:  Thank you very much, Mr. Rogers.

16             We will take a break and come back at 4.00.  Court adjourned.

17                           --- Recess taken at 3.33 p.m.

18                           --- On resuming at 4.01 p.m.

19             JUDGE MOLOTO:  Before you proceed, Mr. Rogers, may I apologise to

20     you for taking you by surprise before we went for the break to asking you

21     whether it was a convenient time.  And may I apologise to everybody for

22     having not mentioned the times for sitting.  When I first came here I was

23     told that a 30-minute break is an absolute minimum for purposes of

24     delayed broadcast and for corrections by the stenographers.  So the only

25     way you could get that was to divide the time such that we sit for one

Page 246

 1     hour, 15 minutes, then take a 30-minute break.  So at least we will not

 2     be taken by surprise.  We are now going to after quarter past 5.00 before

 3     the next break.

 4             MR. ROGERS:  Thank you, Your Honour.

 5             JUDGE MOLOTO:  You're most welcome.

 6             MR. ROGERS:  I should try to keep an eye on the clock from here.

 7             JUDGE MOLOTO:  Thank you so much.

 8             MR. ROGERS:  A little difficult to see, but I will try.

 9             JUDGE MOLOTO:  I'll be your eye.

10             MR. ROGERS:  [Overlapping speakers] Thank you, Your Honour.  I'll

11     have several reminders.

12             Your Honours, turning now to consider the individual counts on

13     the indictment.  Your Honour, Count 1 on this indictment alleges murder,

14     cruel treatment, and torture in relation to three victims:  Ivan Zaric, a

15     Serb; Burim Betja; and Agron Berisha, two Roma/Egyptian.  Your Honours,

16     witnesses will, in dealing with this count, will say that as part of the

17     conflict, the armed conflict, around 19th of May, 1998, Serbian forces

18     attacked the village of Grabanice - and Your Honours will recall I

19     mentioned this village will have some significance, and this is the first

20     place in which it does - in the municipality of Kline.  Your Honours,

21     witnesses describe the nature of that attack.  They say that there was

22     two days of shelling, albeit less on the second day, followed by a

23     full-scale ground attack.  But despite that attack and despite the armed

24     conflict, those living in that area still had to try to survive and the

25     essentials of life had to carry on.

Page 247

 1             Your Honours, at the time of the attack around the 19th of May,

 2     1998, three young men or boys, the three victims, went from their village

 3     of Dollc, which is about 10 kilometres from Grabanice, to mill their corn

 4     to flour at the Grabanice mill.  According to Witnesses 31 and 66, the

 5     young men went together to mill their grain on a horse-drawn cart.  One

 6     was Ivan Zaric and the other two were the Roma that I mentioned.  They

 7     came from a small community where Serb, Roma, and Catholic Albanians

 8     lived in harmony together.  Normally this journey would take a couple of

 9     hours, but these three young men/boys never returned.

10             Witness 80 describes seeing them that day at the mill at

11     Grabanice.  He says that there were two Albanian -- who he calls children

12     aged between 16 and 17 on a cart that came to the mill.  And third person

13     remained outside on the horse.  The two Albanian children, he says, were

14     related and from the village of Dollc.  He said they were polite.  He

15     describes seeing them being taken from the mill by two members of the

16     KLA, Hazir Morina and Shaqir Krasniqi, and they were taken to a house in

17     Grabanice nearby where those two men beat the boys with sticks.  The two

18     men then declared that they were taking them to Jabllanice.  A few days

19     or so later Witness 80 describes seeing them again, this time what he

20     refers to as a prison in Jabllanice.  By this time he himself had been

21     detained and was working in the kitchen of that prison area in a barracks

22     or a type of headquarters.  He locates that place on the left-hand side

23     of the road from Zhabel.  Your Honours may recall that Zhabel is to the

24     south of Jabllanice, and he says it was near a mosque and cemetery and

25     what he describes as an ambulance station.

Page 248

 1             Your Honours, I'm going to show you now a series of photographs

 2     of the village of Jabllanice and the location of where the Prosecution

 3     says witnesses will identify the prison or barracks building and some of

 4     the pictures of the buildings themselves.  A number of these have already

 5     been shown to witnesses in the last trial and identified particularly by

 6     Witness 3 and Witness 6 as the place where they were detained in

 7     Jabllanice.

 8             And Your Honours, perhaps I can just take you through this small

 9     slide show.  My learned friends have got copies of these as well.

10     Your Honour, the first slide is page 13 of your map bundle.  This is an

11     aerial photograph looking at the village of Jabllanice and you can see

12     the main road running through Jabllanice, and the view in this photograph

13     is looking essentially from the direction of Catholic Gllogjan towards

14     where Zhabel would be.  And if you follow the road starting in the bottom

15     right-hand corner of the photograph and follow it down into the

16     photograph, you see the mosque on the hill and there's a little cemetery

17     behind, and to the side you can just see some of the gravestones actually

18     as you turn the bend in the road.  And on the bend in the road you see a

19     red brick building and some objects in front and the cemetery area there.

20     Following around the road you can see it turning into the distance and a

21     little group of red-tile-roof buildings.  And beyond those

22     red-tile-roofed buildings is the facility at which the Prosecution says

23     these individuals were detained.

24             I turn you now to the next map, photograph.  This is an aerial

25     view of the village, and if I then just turn you over straight away

Page 249

 1     because this document is in e-court 03036, page 2, we've annotated the

 2     next slide just to try to orientate or help orientate around where we

 3     are.  And this time you can see Catholic Gllogjan is to the north and

 4     Zhabel to the south, and the place at which we say these individuals were

 5     detained is the building shown on the left-hand side of the road coming

 6     out from Zhabel as you enter the village of Jabllanice.  Your Honours can

 7     see it there circled.  Actually, if you imagine driving your way in on

 8     that road as you come up and you come around the bend where the wooded

 9     area is, that's the area of the point of the two meeting roads where the

10     mosque is.  You can imagine looking at it from both directions, just to

11     help orientate a little bit about the geography of this particular area.

12             Turning the page, there's the first photograph of the building,

13     and actually if you do a comparison, I don't know, maybe you can from the

14     physical documents, you can see in 15 the shape of the building outlined,

15     the one that's circled, and then you can sort of pick it up a little bit

16     from this photograph, 16, e-court page 2 in 03037, and you can see the

17     road going into Jabllanice.  This is map page 16, photograph that's being

18     shown.  And a walled area, red-tiled building to the left.  And if you

19     look along the wall going into the photograph you can see what appears to

20     be a ruined sort of gate which appears it had a top on it at some point.

21             If I can turn the page to the next slide, 03037, e-court page 3,

22     you will see the gate, this time really coming from the direction of

23     Catholic Gllogjan.  And just in -- the top of the wall in the left-hand

24     side of the photograph you can see poking above it the red tiles of the

25     previous building.

Page 250

 1             Turning to the next slide or the next page if you're looking into

 2     this book, this is in e-court at 00357, and now we have a view from

 3     inside the compound -- I'm sorry, Mr. -- I'm sorry, I didn't see you

 4     stand up.

 5             JUDGE MOLOTO:  Mr. Harvey.

 6             MR. HARVEY:  Your Honour, it's -- something I do not like to do

 7     is interrupt a colleague in full flood, but there has been substantial or

 8     there's been a reasonable amount of correspondence between the parties as

 9     to how these photographs should be labelled.  Up until now they have been

10     labelled, in my submission, properly and neutrally.  Photographs 18 --

11     pages 18, 23, 25, and 26 contain language that we considered to be

12     inflammatory, which Mr. Rogers knows we consider to be inflammatory, and

13     we have objected to him that we will not concede any such wording as

14     "prison" or "detention facility."  And Your Honour has already made

15     mention of the fact that the more documents a Court sees which contain

16     potentially prejudicial language, the more worrying it is.  I simply rise

17     to say I would ask Your Honours to simply take a pen and delete the words

18     "prison" or "detention facility," that these are matters that have not

19     been proved and, we submit, will not be proved.

20             JUDGE MOLOTO:  Mr. Rogers, do you have any response?

21             MR. ROGERS:  [Microphone not activated]

22             JUDGE MOLOTO:  Microphone, Mr. --

23             MR. ROGERS:  Sorry.  I thought it had been taken off.  I must say

24     I didn't notice that it had remained there on that particular photograph,

25     although I think that photograph has been identified by one of the

Page 251

 1     witnesses.  If Your Honour just bears with me, I'll see if I can just

 2     check that.  I may be wrong, but I'll just see if I can check that.

 3             MR. HARVEY:  I'm sorry, Your Honour, what is at issue is not what

 4     has been identified by a witness but what will be proved by a witness,

 5     and labelling documents in advance in this way is as much as putting a

 6     photograph of the accused in the bundle and saying "the guilty man."

 7     It's not the way it should be done in my submission.

 8             MR. ROGERS:  That wasn't the intention.  If my learned friend is

 9     unhappy, we can very easily delete the word "prison."  It's what the

10     Prosecution says is the prison.  It will be a matter for Your Honours to

11     determine whether it is or is not.

12             JUDGE MOLOTO:  That's what you allege?

13             MR. ROGERS:  Yes, I hope that Your Honours can deal with it in

14     that way and neutralise anything that may be upsetting my learned friend.

15             JUDGE MOLOTO:  Sure.

16             MR. ROGERS:  So Your Honour --

17             JUDGE MOLOTO:  Whether you call it prison or not --

18             MR. ROGERS:  You will determine.

19             JUDGE MOLOTO:  -- we will find out from how it was used?

20             MR. ROGERS:  Indeed.  Your Honours will determine what you think

21     it was in due course.  We say the building on the right-hand side of this

22     photograph is the prison, and when I come a little bit later in my

23     presentation I'll show you some other photographs which have been

24     identified by witnesses, saying that that is the prison.  And indeed,

25     witnesses for whom there has been a conviction.

Page 252

 1             So perhaps we'll come to it when we come to it.  But let me just

 2     orientate you a little bit around this photograph.  You can now see

 3     looking into it, first of all, the gate coming on the right -- the

 4     left-hand side of the photograph, and then there's a -- what appears to

 5     be a long building of some sort in front of the wall, the red-bricked --

 6     red-faced building which appears to have a number of windows in it and no

 7     roof at this time when this photograph was taken, which the Prosecution

 8     says is some -- some good while after the actual events themselves.

 9     Clearly it's a ruin and was not, we say, at the time.

10             Then on the right-hand side of the photograph is the taller

11     red-tile-roof building, red brick-faced.  It appears to have no plaster

12     on it which we say is the prison.  It was used as a prison.

13             Turning the page, I'm happy to say the neutral language is there

14     which I hope would be on all of them.  This is in e-court at 03037 and

15     page 4, and that gives you another view of the building we say contained

16     the prison.  We say it has four rooms to it, two at the front, one behind

17     the bush, and then others behind those two rooms.  And if I can just draw

18     your attention to the man in the picture, you can see him kneeling down.

19     On the right-hand side of the building at the ground level appear to be

20     two black holes and a man kneeling.  Your Honours, we say that's the

21     basement, cellar area, underneath this building which forms part of the

22     witness's narrative, he'll just say some were detained.  And if I take

23     you to the next photograph, we're now moving into where the man was

24     kneeling, and you can see there the two -- I don't know what to describe

25     them, windows or holes, whatever they may be, two holes looking in to

Page 253

 1     what appears to be a water-filled basement.  If we take the next

 2     photograph --

 3             JUDGE MOLOTO:  How do we determine that it's a water-filled?

 4             MR. ROGERS:  If we take the next photograph, Your Honour, 03052,

 5     e-court page 1, this is a photograph of the basement and can see it is

 6     water-filled.  That's not to say it was always water-filled, but in this

 7     photograph it is and witnesses describe how at certain times of the year

 8     it filled with water, not always but sometimes.

 9             Your Honours, so having orientated you around the photographs,

10     can I take you now to the descriptions of some of the witnesses of what

11     happened.  Witness 80, we say, describes the building shown in the

12     photographs.  He said it had -- the prison building, he said it had red

13     tiles -- I'm sorry, the whole building had red tiles, was close to the

14     road with a wall, and had double gates, topped by a small roof and had a

15     yard.  And he says, Witness 80, that it was there in that yard area that

16     he saw the three victims of Count 1 again.  This is -- now he'd been

17     detained there to take you back to the narrative and he says he saw the

18     three again there.  Although, he says, they were so badly beaten that he

19     could hardly recognise them.

20             Your Honour, he says that the building belonged -- that place,

21     the photographed place, belonged to a relative of Lahi Brahimaj.  He says

22     that as you entered the yard there is a building immediately on the left

23     which had red tiles at the time and was a long covered building with only

24     one floor.  The wall close to the road, he says, was part of the

25     building.  And he said it was that area that was a kitchen or eating

Page 254

 1     place.  In addition to that building, he said, within the compound area

 2     was another, and that other building he says was the prison.

 3     Your Honours have seen the photographs showing what appear to be two

 4     buildings.  It was, he said, square-shaped with a roof which he described

 5     had four triangles.  He said it had a floor and a cellar basement.  With

 6     four rooms, two at the front and two at the back, with a corridor through

 7     the middle.  He says it was built with red brick, unpainted and

 8     unplastered, so that you could see the mortar between the bricks.

 9             He says that he saw who he describes as children being taken from

10     the basement cellar area of the prison building.  He saw KLA soldiers

11     taking them from the cellar, these being, the Prosecution says, the

12     victims.  And he says that the "big fry," he refers to saw them being

13     taken out as well.  And, Your Honours, we say that the big fry he refers

14     to are the three accused, Ramush Haradinaj, Idriz Balaj who he says was

15     known as Togeri, and Lahi Brahimaj.

16             He says he saw the three young men or boys being taken into the

17     yard, and there the soldiers beat them while the three accused watched.

18     One of the two boys spoke Albanian and was calling out to their mothers

19     "kuku nana jeme," and crying out for help to anyone that would help them,

20     pleading.  He says they were beaten with sticks, thought that their arms

21     were broken as they were not in a proper shape and were not being held in

22     their normal positions.  He says they were battered, broken, and abused,

23     this is what the Prosecution anticipates he will say when I say "he

24     says," that's our understanding of the evidence he will give, and that he

25     was -- one of them was, as he described, peeing himself, wetting himself.

Page 255

 1     All of this while the accused watched on.

 2             He said, as he refers, boys were being -- were tied to what he

 3     describes, we say, as some sort of tree or wooden pillar.  They were

 4     brought out in front of the kitchen area, which he refers to as a -- like

 5     an open mensa or a canteen.  They were tied to these wooden pillars with

 6     wire with their hands tied behind their backs.  Their clothes were wet as

 7     though they had been detained in the basement of the prison and they were

 8     trembling.  He describes Idriz Balaj and a man called Bandash beating

 9     them, torturing them, and that Mr. Haradinaj was seated in the kitchen

10     area.  Lahi Brahimaj was standing.  And he describes this way, that for

11     him, Lahi Brahimaj, this was funny.  That's the description he gives.

12             He goes on to say that Lahi Brahimaj joined in the beating.  He

13     used everything, shoes, sticks, and he refers to the children -- again,

14     he keeps saying "children," that's just the way he describes them.  He

15     says they couldn't stop the children peeing, I'm not suggesting they were

16     very young children, but that's his description.  One was crying "mother

17     oh mother" in Albanian.

18             He says that during the beating Lahi Brahimaj accused the boys of

19     being sent by the Serb army.  They were found to have 100 Deutschemarks

20     in their pockets.  And he says that in order to save themselves when they

21     were beaten they said, "Yes, the Serb soldiers gave it to them."  But he,

22     the witness, did not believe that was true.  He didn't think they were

23     the type of people the Serbs would be sending, as he put it, without a

24     single day of education.

25             The beating, he says, continued for about 20 minutes.  He then

Page 256

 1     saw Idriz Balaj take a large sharp knife from a sheathe hanging on his

 2     belt.  Balaj said "I am only here to kill people."  He placed the knife

 3     on the ear of one of the three and then sliced off the ear whole.  The

 4     other two boys, he says, screamed.  Immediately after that the beating

 5     continued and Witness 80 heard Lahi Brahimaj and Idriz Balaj, Toger,

 6     speak about giving them papers to Drenica.  That expression, he says,

 7     meant that they would not be seen anymore, that they would be executed.

 8             And he said after the ear cutting he couldn't watch anymore, went

 9     to the back of the building, the kitchen, area, canteen, pretending to do

10     so something.

11             In addition to Witness 80, the Prosecution says Witness 81 will

12     provide evidence corroborating the account of this witness and providing

13     his own account of what he saw.

14             Your Honours, we recognise that there are internal differences

15     between the accounts of the witnesses and between their own accounts, and

16     Your Honours in due course will need to assess the weight to attach to

17     each of their evidence should they be heard.  But they are central to

18     this count so I must open them.

19             Your Honours, Witness 81 broadly, we say, corroborates the

20     account of Witness 80.  Witness 81 was a member of the KLA but he was not

21     based in Jabllanice.  He had been, he says, sent to the prison and there

22     had met Nazmi Brahimaj and Lahi Brahimaj, who he knew as Maxhup.  He

23     describes, he says, the prison being located on the road to Zhabel at the

24     end of the road out of the village of Jabllanice as you travel towards

25     Zhabel.  And, Your Honours, it clearly is.

Page 257

 1             He describes the prison as being on one level with a roof and a

 2     basement, like an abandoned-type house with no windows or doors and no

 3     paint or plaster on the outside walls.  There were four rooms, he says,

 4     two at the front and two at the rear.  And there was a basement, he says,

 5     that was partly filled with water.  He says that in the basement was

 6     seven prisoners, three young men, a Serb and two Roma, and four more

 7     elderly people, two men and two women, between -- caution with "elderly,"

 8     between 40 and 60.  He assumed the women, he says, were Serb because they

 9     were not wearing the typical "shamija," head-scarf, worn by Albanian

10     women.  He said the prisoners looked as though they'd been beaten and

11     looked very thin.

12             Later that same day, Witness 81 saw Lahi and both

13     Ramush Haradinaj and Idriz Balaj.  He had known Ramush Haradinaj since

14     1995 and had met him several times since March 1998.  He describes the

15     relationship between Ramush Haradinaj and Lahi Brahimaj as one where

16     Ramush Haradinaj referred to as Lahi Brahimaj as "dajko," meaning

17     maternal uncle.  He says the Brahimaj's were based in Jabllanice and the

18     Haradinajs in Gllogjan, but essentially they were all one big family.

19             Sometimes that morning when he had arrived at the prison he was

20     told to go outside by Lahi Brahimaj.  He saw the two Roma and the Serb

21     victim being taken from the basement.  We say that is who he saw.  There

22     were about 12 KLA soldiers outside, including the three accused.  He

23     describes the prisoners being sworn at, interrogated, and beaten because

24     they were considered to be Serb spies.  He heard, he says,

25     Ramush Haradinaj swearing at them and insulting them, saying things like:

Page 258

 1     Where are your Serbian forces?  I shall kill you and fuck your Serbian

 2     mother.  He says they were interrogated in Albanian but mainly by

 3     Lahi Brahimaj but also by the other two accused, Togeri and

 4     Ramush Haradinaj, about the whereabouts of Serb forces.  Lahi Brahimaj

 5     and Idriz Balaj were swearing but they were mainly beating them.

 6     Lahi Brahimaj, he says, used a baseball bat.  Nazmi Brahimaj and

 7     Ramush Haradinaj also joined in the beating.  Toger said, "This is how

 8     you treat the enemy."  Haradinaj punched one of the Roma several times

 9     with his fist until the boy fell to the ground.  And he explains that

10     later, sometime later in 1998, Ramush Haradinaj told him that he,

11     Ramush Haradinaj, hated Roma.

12             The Roma boys were screaming in Albanian, "Please don't kill us.

13     We are with you."

14             Towards the end of the beating he saw Idriz Balaj cut off the ear

15     of the Serb boy with a knife.  Lahi Brahimaj then hit the boy on the head

16     with a baseball bat causing one eye to bleed heavily.  He says

17     Idriz Balaj grabbed the Serb boy by his hair on the back of his head and

18     took out the bleeding eye with his knife.  He then turned to the two Roma

19     and stabbed them several times to the chest area.  Witness 81, he says,

20     heard Ramush Haradinaj and Idriz Balaj say to the soldiers present "take

21     them to Drenica," this was, he says, an expression learnt in the KLA to

22     mean liquidate or execute prisoners, in particular Serbs, but also

23     Albanians and Roma considered collaborators.

24             He says the reason the phrase was taught was to avoid prisoners

25     panicking if they were to learn of their fate.  Ramush Haradinaj then

Page 259

 1     said to him, Witness 81, and others standing by, "Take them to Drenica to

 2     Father Adem."  A reference to Adem Jashari, a KLA commander killed in an

 3     attack by Serb forces and regarded as one of the KLA's first martyrs.

 4     Although Witness 81 was from a different command, he acted out of respect

 5     for Ramush Haradinaj.  He took the prisoners he had come for out of the

 6     compound together with other local KLA members.  They were taken to the

 7     ambulance station first but they did not leave there alive.  Their bodies

 8     were later dumped by local KLA.

 9             Your Honours, turning to Count 2 -- and I can say, Your Honours,

10     that the bodies of these three victims have not been recovered.

11             Turning to Count 2, this is a count relating to murder, cruel

12     treatment, and torture, and the victims of this count are Uke Rexhepaj

13     and Nesret Alijaj, two Roma/Egyptian men.

14             Witnesses 54, 78, and 79 provide evidence that on the 20th of May

15     1998, at around the same time as the events in Count 1 and the Serb

16     attack on Grabanice, two Ashkali/Roma/Egyptian civilians, Uke Rexhepaj

17     and Nesret Alijaj, who were related, were abducted while cycling on the

18     road between Grabanice and Dollovo to feed their cattle.  Their family

19     has never seen them again.  Although in 2003 Uke Rexhepaj's clothing was

20     later identified among artefacts being displayed by the ICRC for the

21     purpose of identifying those missing from Kosovo.

22             Witness 54 said that they were abducted by armed soldiers and

23     taken away in a car.  They were taken to Jabllanice where they were seen

24     by Witness Kabashi, a member of the KLA, the Prosecution says, based in

25     Jabllanice since 9 April 1998.  He describes them as two men of Roma

Page 260

 1     ethnicity who were related, father-in-law, he says, and son-in-law.  He

 2     had seen them earlier that morning in Grabanice being detained by KLA

 3     soldiers with others at a Serb house.  He says they were being accused of

 4     being Serb collaborators.

 5             He says that at Jabllanice their hands were tied behind their

 6     backs with wires, he saw them in the prison at Jabllanice, and they were

 7     being kept there for only one day.  He spoke with Brahimaj,

 8     Lahi Brahimaj, about the prisoners, and he describes Lahi Brahimaj as the

 9     main commander of the KLA hierarchy in Jabllanice, together with

10     Alush Agushi.  Lahi Brahimaj told him they were being sent to Drenica and

11     he confirms, like both Witnesses 80 and 81, that that meant they were to

12     be executed.  The Prosecution says that both these victims were murdered

13     whilst in the custody of the KLA.

14             The prison Kabashi describes being in a house used as a barracks

15     belonging to the relatives of Lahi Brahimaj and located on the road to

16     Zhabel on the outskirts of Jabllanice village, about 500 metres from

17     Lahi Brahimaj's own home.  And he drew a sketch to show where the prison

18     and barracks were located.  Your Honours, that is the sketch Mr. Emmerson

19     has already referred to, but in our submission it shows largely what is

20     already clear from the photographs and from the aerial photographs and

21     the witness -- evidence of others where the location of this place was.

22             And Your Honours can see, shown I think on the screen, that the

23     map that he -- sketch map that he drew --

24             JUDGE MOLOTO:  Yes, Mr. Emmerson.

25             MR. EMMERSON:  I'm going to have to object for the same reasons

Page 261

 1     as before.  This is part of his witness statement.  It's not right for

 2     the Prosecution to seek to admit it at this stage.

 3             MR. ROGERS:  It's part of his evidence that the Prosecution

 4     expects he will give.  He's here and I hope that Your Honours can just

 5     look at it now and deal with it now.

 6             JUDGE MOLOTO:  [Microphone not activated]

 7             The Chamber did make its remarks a little earlier before the

 8     break about tendering documents, exhibits without witnesses.  And it's

 9     all very well to say you will show a sketch to --

10             MR. ROGERS:  No, Your Honour, I'll leave it.

11             JUDGE MOLOTO:  Thank you, sir.

12             MR. ROGERS:  Your Honours, he, Kabashi, explains that he had seen

13     other prisoners detained there from when he first went in early April

14     1998, and two men, Afrim Morina and another Idriz, he didn't know his

15     other name, being detained as spies, and Lahi Brahimaj kicking one or

16     other of them.

17             In addition he describes other beatings and torture for other

18     individuals, in particular one Roma from Budisalc village near Kline, who

19     he describes being severely beaten and cut with a bayonet and so badly

20     injured that he died.  As far as Kabashi himself could ascertain, his

21     only crime was to have been carrying a camera while travelling from

22     Budisalc to Kralan.  The victim saying the camera was for his pictures of

23     his marriage, but he was being beaten on suspicion of taking pictures of

24     KLA positions.

25             Your Honours, turning to Counts 3, 4, and 5.  Your Honour, I

Page 262

 1     intend to deal with these together because the evidence of the witnesses

 2     is so overlapping, to try to separate them out is very problematic, so I

 3     hope Your Honours will forgive me for taking them together.

 4             Again, they involve murder, cruel treatment, and torture.

 5     Count 3, the victim is a -- a Witness 6, a Catholic Kosovar Albanian.

 6     Count 4, the victims are Nenad Remistar, a Serb traffic police officer, a

 7     Bosnian man whose name is unknown, who worked for the Serb power company

 8     Elektrokosova, and three Montenegrins whose names are not known.  And

 9     Count 5 the victims are Witness 3, a Kosovar Albanian; a man called

10     Pal Krasniqi, a Catholic Kosovar Albanian; and Skender Kuci, a Kosovar

11     Albanian.

12             Your Honours, amongst the victims that Shefqet Kabashi mentioned

13     was a man who he said will have been abducted between Kline and Gjakove.

14     This man, he said, had a Mercedes car which was taken by the KLA

15     commanders at Jabllanice.  Kabashi gives his first name and place of

16     birth which is the same as that of Witness 6 and describes this man as

17     being badly beaten.  Witness 6 is a Catholic Albanian civilian who was

18     abducted on Friday, the 13th of June, 1998, whilst he and his family were

19     driving in his Mercedes Benz 200 vehicle along the Gjakove-Kline road.

20     He left home about 11.30 that morning to go to Kline.  He and his family

21     had passed through Grabanice and been turned back at the entrance to

22     Dollovo by Serb soldiers.  But on the way back to Gjakove he was stopped

23     again along the main road at a place between Gjakove and Kline by

24     approximately ten KLA soldiers wearing a mix of camouflage and civilian

25     clothes.  His car was searched.  He was detained at the roadside for

Page 263

 1     about two hours with his family.  He had a pistol on him which was seized

 2     together with all documents.  This is the evidence that he gave.  He says

 3     he had a licence for the pistol but it was a police-issued weapon, and

 4     issued to reserve police.  It had in fact been his father's.  He also had

 5     on his person a photograph of himself with a retired Albanian policeman

 6     in police uniform.  After about two hours of his detention of his

 7     detention at the side of the road, another car came along the road.  The

 8     soldiers fired some shots and then brought the car to near where he was.

 9     It was a light blue Opel Kadett with Gjakove licence plates beginning DJ.

10     Soldiers asked if he recognised the car, but he said he didn't.  Shortly

11     after this, about 20 minutes later, Witness 6 and his family were taken

12     in the two vehicles, the Kadett and the Mercedes, towards Jabllanice.  He

13     was in the Kadett with his wife, and a soldier and the children were in

14     the Mercedes.  Inside the Kadett he saw some photographs.  They were of a

15     policeman who worked in Gjakove whom he knew as Nenad.  Nenad was from

16     the Binxh village in Kline municipality and worked in Gjakove.  Witness 6

17     believed Nenad was a Serb or a Montenegrin who worked as a policeman.

18             Your Honours, this man, this Nenad, the Prosecution says is Nenad

19     Remistar.  He was the owner of a light blue Opel Kadett, was a Serbian

20     traffic police officer, and he is the victim of Count 4 in this

21     indictment.  It's our case that he was abducted at the time the Kadett

22     was stopped on the road on 13th of June 1998.  He left his home

23     travelling to work at about half past 1.00 in the afternoon.  He had gone

24     in the blue Kadett, and he is described as having short light brown to

25     blond hair - there is significance of this - blue eyes and clean-shaven.

Page 264

 1     He never returned home from his trip to work that day, has never been

 2     heard from or seen since.  His body has not been recovered.

 3             Returning to Witness 6, on the way to Jabllanice, now travelling,

 4     they stopped in a convoy stopped in Neople village where his wife and

 5     children were told to get out.  He wasn't allowed to leave and they

 6     travelled on to Jabllanice.  They arrived at Jabllanice and he was taken

 7     into the compound, to a room close to the entrance of the compound of the

 8     building the Prosecution describes as the prison.  He says he was

 9     initially taken to a single-storey house with red bricks and four rooms

10     in the middle of the courtyard, and he identified this photograph,

11     showing I hope now, as the four-room house.  Your Honours can see it's

12     the same photographs -- part at least of the same photographs you have

13     been looking at and the man kneeling in the corner there.

14             He went on to describe the basement and said there was water in

15     the basement, and he was held in the building for six weeks, being

16     released on the 25th of July, 1998.

17             Once he was taken into the building he was placed in one of the

18     rooms and beaten by soldiers until he describes them being exhausted.  He

19     says one after the other, sometimes with a baseball bat, sometimes with

20     other things, whatever they could lay their hands on, is part of his

21     testimony.  During the six weeks he was there he was beaten often.  One

22     of the beaters was Lahi Brahimaj, known as Maxhup, the others were Nazmi

23     Brahimaj, Lahi's brother, and his cousin Hamza.  They were the initiators

24     of the beatings.  But on the first day and night of his detention, he was

25     kept in a building different from the four-room building.  He was kept

Page 265

 1     there with a man called Nenad he had seen in the photographs in the car,

 2     and he drew on a photograph, which I think is being shown now, in the

 3     last trial the room in which he was initially kept that first night,

 4     photograph 65 ter 00333.  And Your Honours can see it's in the long

 5     building as the entrance to the compound.

 6             It was here, he says, that Nazmi Brahimaj beat him until he, the

 7     victim, lost consciousness.  He was beaten with a baseball bat on his

 8     legs and his arms.

 9             He was tied with rope to Nenad in the same room.  They were both

10     beaten.  He said, "We stayed there all night and we were beaten and

11     tortured and we had lost consciousness, me and Nenad."  Nazmi and a group

12     of soldiers took turns to beat them, Nazmi Brahimaj.  He was with Nenad,

13     he says, for 24 hours and then Nenad was taken away by two soldiers.

14     When he was taken away, he, Nenad, wasn't able to walk.  He said they

15     both had, he and Nenad, the same injuries.  They were both moved after

16     the first night to the four-room building.  Witness 6 was kept in the

17     room on the left side of the building as you enter.  He was not kept with

18     Nenad.  He didn't see him again and didn't know what happened to him.

19             The Prosecution says the account of what happened to Nenad

20     Remistar is picked up by Witness 81.  I'll return to Witness 6.  Still

21     with Nenad Remistar.  Witness 81 describes returning to Jabllanice about

22     three weeks after the ear-cutting incident.  This would appear to fit,

23     the Prosecution says, with the abduction of Nenad Remistar on the 13th of

24     June, 1998.  He describes, Witness 81, being sent to the prison at

25     Jabllanice in order to take two Roma and an Albanian prisoner to

Page 266

 1     Novoselle where there was another KLA prison.  He had an order to take to

 2     Lahi Brahimaj which he delivered.  He saw the three prisoners who he had

 3     to take and said they were not too badly beaten.  He said there were a

 4     total of 15 prisoners and was present when Lahi Brahimaj interrogated and

 5     beat a policeman called Nenad who had blond, fair hair.  He was

 6     questioned about patrols and check-points.  His hands were tied behind

 7     his back and he was beaten by Lahi Brahimaj all over his body with a

 8     baseball bat.  He was already hardly able to stand, he says, before this

 9     interrogation.

10             Witness 81 took his three prisoners away to Novoselle, returned

11     to Jabllanice the next day, he had gone to take three prisoners to

12     another place and had become somehow involved with the interrogation of

13     this witness -- this victim.  He returned the next day to discover that

14     this victim, Nenad Remistar, and two other Serb policemen he said who

15     were also detained in the basement, and all the other prisoners, had

16     gone.  He did not ask Maxhup -- the prisoners in the basement had gone.

17     He didn't ask them what had happened but understood, he says, they had

18     all been killed.  Doesn't explain any more about that.

19             Returning to Witness 6, he wasn't kept in the basement, he was

20     kept in the rooms.  He said for the first four weeks he was kept locked

21     in the room on the left-hand side of the building and saw no one other

22     than those that came, he says, to torture him.  He couldn't tell day from

23     night because he was locked in the room and beaten, wasn't allowed out,

24     and the window was barred with wooden planks.  He was given a piece of

25     bread and marmalade, a little to drink, filthy water in glass jars, he

Page 267

 1     was sick and he was often unconscious.  They took his watch and he was

 2     almost naked.  He couldn't count the assailants because they were

 3     numerous.  This is his evidence.  For the second two weeks he had more

 4     freedom to move and had better food and was able to eat bread and beans.

 5     And after about two weeks of his detention, they brought four other

 6     prisoners, he said, a Bosnian and three Montenegrins.

 7             Your Honours, it's fair to say that this witness is a little

 8     unclear about precisely the periods of time between the six weeks for how

 9     long he was kept, whether it was two or four weeks before he was allowed

10     a little bit more freedom, but Your Honours will no doubt be able to deal

11     with that when you read and understand his testimony.  But essentially he

12     gives an account of increasing amounts of freedom.  And then

13     describing -- during this detention period, these four other prisoner, a

14     Bosnian and three Montenegrins -- the other victims in Count 4.

15             The Bosnian was a Muslim working in Decan in the Elektrokosova

16     company.  The four were together with Witness 6, the four new people --

17     the Bosnian and three Montenegrins were with Witness 6 for about three

18     days he says.  He describes how the four men were beaten during the three

19     days that they were there.  They were beaten with baseball bats, they

20     were stabbed with knives, their clothes were covered in blood.  He

21     describes the victims being pricked with knives all over their bodies,

22     about 1 centimetre deep, three of them.  They were bleeding and because

23     of the beating they spat blood.  They were covered in blood.  That's his

24     testimony.  There was blood on the floor.  He says that during the

25     beatings Nazmi Brahimaj and Hamza were there.

Page 268

 1             On about 10.00 in the evening on the third day the four men were

 2     taken away.  He never saw them again.  During the beating of the man from

 3     Elektrokosova, the soldiers were telling him, you are working for Serbia,

 4     you are working for Elektrokosova, and you are interrupting the

 5     power-supply, all the time the KLA soldiers were beating him.

 6             Throughout the time he was detained there, Witness 6 saw

 7     Lahi Brahimaj continuously, regularly.  Asked what this meant, he said,

 8     "Well, two days would not pass without seeing Lahi Brahimaj ..."

 9             That was his testimony.  He went on to describe the three, three

10     men, coming to beat him regularly with baseball bats and fists.  He said,

11     "For two weeks, I didn't know where my face was, where my neck was.  I

12     was all swollen up because of the beatings."

13             They also sent others to beat him.  All three, Lahi Brahimaj,

14     Nazmi Brahimaj, and Hamza Brahimaj weren't there all together at the same

15     time.  When asked about his conditions of detention he said, "During my

16     stay for the first three weeks there was nothing in the room, only the

17     floor.  No covering, no blankets, nothing."

18             About two weeks before he was released he had a little bit more

19     freedom.  It appears he could move around, this time in the village a

20     little.  Three other people were brought in at that time.  One was an

21     Albanian man from Zahaq brought in the boot of a car in a metallic

22     Mercedes and he was beaten, the Prosecution says, and tortured until he

23     died.  When he arrived, the man in the car, they took him from the trunk

24     of the car and beat him, they being Nazmi Brahimaj, Lahi Brahimaj, and

25     others.  He says he was ultimately sent for treatment -- the man was

Page 269

 1     ultimately sent for treatment, but he died.  That man was kept in a room

 2     different from Witness 6 and was beaten by Nazmi and Hamza.  The

 3     Prosecution says that man, the man in the Mercedes from Zahaq was

 4     Skender Kuci, the victim in Count 5.

 5             Later again they brought two other prisoners.  One was

 6     Pal Krasniqi, another victim in Count 5.  He was wearing sports clothes,

 7     a blue track suit, and Witness 6 was shown a photograph of Pal Krasniqi

 8     and was able to identify the man as one of the men who was brought in.

 9     He says Pal Krasniqi was a Catholic.  The other man who came a few hours

10     after Pal Krasniqi is, the Prosecution says, Witness 3, another victim of

11     Count 5.

12             These two men, Pal Krasniqi, Witness 3, and Skender Kuci were put

13     together in one room.  He, Witness 6, says he saw Pal Krasniqi and the

14     other man, Skender Kuci, being beaten with a baseball bat, and describes

15     them being in a horrifying state.  He didn't see Witness 3 being beaten.

16     Pal Krasniqi and the other man, Skender Kuci, were beaten continuously on

17     the second day of their detention.  Witness 6 goes on to describe how the

18     three, he says, tried to escape.  He says Witness 3 was able to get away

19     but the other two could not.  They couldn't walk fast.  They were

20     recaptured, beaten, and tortured again.  Hamza Brahimaj beat them.

21     Skender Kuci was later taken to Irzniq, but Pal Krasniqi was left in

22     Jabllanice.  In the time the other man, Skender Kuci, was there,

23     Witness 6 describes him as lying down with his eyes closed.  He said he

24     was fat and also swollen because of the beating, so his eye -- he could

25     not open his eyes.  He was all swollen.  He was fat but because of the

Page 270

 1     beating he said, "I thought his clothes could not contain his body

 2     because of the swelling."  That's at transcript 5337 of the last trial.

 3             Witness 6 describes Pal Krasniqi as beaten up very badly.  He

 4     could not eat or drink anything.  Witness 6 remembers being released on

 5     25th of July 1998.  He saw Pal Krasniqi shortly before he left Jabllanice

 6     and says this:  "There was blood on him, he was spitting blood.  His body

 7     was all blue and black because of the beating, swollen.  He was lying

 8     down on the floor.  I would bring him some water.  He was in this shape

 9     for a week.  Then I was released and left that place and I don't know

10     what happened to him."  He never saw him again.  And he didn't know why

11     he had been imprisoned.

12             Your Honours, Pal Krasniqi's body was recovered from the Lake

13     Radoniq canal by Serb investigators on or around the 8th of September

14     1998.  It is the body labelled R9.  An autopsy revealed that the cause of

15     death was multiple gun-shot injuries to the head, trunk, and upper limbs.

16             Witness 6 was never given any reason as to why he himself had

17     been imprisoned, but it's clear, Your Honours, from the transcript in the

18     last trial in answers to questions, I think, by Mr. Harvey in

19     cross-examination that he was being beaten and when he was being beaten

20     he was being questioned.  And during the questioning he was asked whether

21     he had stayed in the company of Serbs.  He said they accused me of

22     staying with Serbs.  Asked further about that he said:  Lahi and Nazmi

23     were saying this.  Lahi and Nazmi accused me of staying with Serbs.

24             In answers to Judge Orie in the transcript he said:  "That night

25     when we arrived there, they asked such questions.  Then they continued to

Page 271

 1     torture me.  And then they, the soldiers came and told me, you are a spy

 2     of Serbia."  As a Catholic Albanian he explained he was not, he felt,

 3     considered an Albanian, he said, for them, and even now they do not

 4     consider me an Albanian.  When he was released he was given some papers,

 5     stating that the staff of the subzone of Dukagjin had ordered his car and

 6     revolver be confiscated, signed by Nazmi Brahimaj as deputy commander.

 7             And in addition he had a paper saying that he, the accused, was

 8     being conditionally -- said the accused, was being conditionally released

 9     by the staff of the subzone and that if he were to repeat his "mistakes,"

10     he would be prosecuted.  He said he didn't know what his mistakes were.

11             He confirmed that Lahi Brahimaj and his brother mistreated him

12     continuously.  Indeed, the Trial Chamber found beyond a reasonable doubt

13     that Lahi Brahimaj personally participated in the torture and cruel

14     treatment of Witness 6 and convicted him of the crimes of torture and

15     cruel treatment as violations of the laws or customs of war.

16             MR. HARVEY:  Your Honour, I should just give notice at this point

17     that the Defence for Lahi Brahimaj objects to the use of any reference to

18     convictions.  As Your Honour has said repeatedly, this is a trial de novo

19     and if the issue of conviction is sought to be relied on by the

20     Prosecution in any degree, then we wish to brief that because we believe

21     it to be completely contrary to the jurisprudence of this Tribunal.

22             JUDGE MOLOTO:  Mr. Rogers.

23             MR. ROGERS:  Your Honour, I had indicated to Mr. Harvey in

24     advance of today's hearing that I intended to open his convictions and

25     unfortunately he hadn't mentioned this to me before I did.  I shan't

Page 272

 1     mention it.  I think it's a matter of record, in any event, that they

 2     exist, but we can deal with what the evidential value of them is or may

 3     be in due course.  I take note of what he says, that there is an issue.

 4             JUDGE MOLOTO:  Thank you for taking note, and thank you.  Are you

 5     done?

 6             Yes, Mr. Harvey.

 7             MR. HARVEY:  I just want to clarify that I thought I had made it

 8     abundantly clear to Mr. Rogers that I would take this position.  I am

 9     surprised that he is surprised.  That's all.

10             JUDGE MOLOTO:  Thank you, Mr. Harvey.

11             MR. ROGERS:  Your Honour, I carry on.

12             Your Honours, by the 25th of July, 1998, and after

13     Ramush Haradinaj's appointment as commander on the 23rd of June, 1998,

14     the Dukagjin zone had been organised with Ramush Haradinaj as the

15     commander.  Lahi Brahimaj was appointed his deputy initially, but by the

16     25th of July, 1998, Ramush Haradinaj had replaced him with

17     Nazmi Brahimaj, which may go some way to explain how the papers that

18     Witness 6 believe was signed by Nazmi Brahimaj as deputy commander.

19             Your Honour, the witness after his -- suffered the attacks that

20     he had says that he continues to have trouble with his left arm and with

21     pain in his kidneys.

22             Your Honours, I just turn to deal a little more now with Skender

23     Kuci, Pal Krasniqi, and Witness 3.

24             Witness 3 was a member of a political party, the LDK, which was a

25     political party supporting Ibrahim Rugova, leader of the LDK and whose

Page 273

 1     ideal had very broadly, I don't want to get into the entire political

 2     history, but very broadly had been for a "peaceful path," solution to the

 3     situation in Kosovo.  Witness 3 had been a village guard in Grabanice and

 4     was at that time in position when the Serbs attacked the village, going

 5     back now into the 19th of May, 1998.  On the 21st of May he had to

 6     withdraw from the village to Jabllanice, passing through Gllogjan, and on

 7     the way he met Lahi Brahimaj, who was very angry, he says, and Alush

 8     Agushi, who accused him of being a traitor for abandoning his post.

 9             In his testimony in the Limaj trial, Shefqet Kabashi described

10     how the villagers of Grabanice had fled the shelling to Gllogjan,

11     Catholic Gllogjan.  He described how the leaders, who he said were

12     Lahi Brahimaj and Alush Agushi, who's another KLA member and named JCE

13     member, asked the villagers of Grabanice why they had left, why they had

14     fled.  And he then said this in his transcript:

15             "At that time it was very difficult to leave your place."

16             Asked what he meant by this, he said:

17             "Because the time was very difficult and it was difficult to

18     leave your place of course.  It was better to stay there and get killed

19     than to flee."

20             Witness 3 stayed for about a week in Jabllanice.  He moved around

21     a bit.  He stayed for about a week in Jabllanice until the 31st of May,

22     when he went to stay in a house in Zhabel belonging to a man called

23     Tal Zekha.

24             Your Honours, can I just very briefly go into private session and

25     then very quickly out again?

Page 274

 1             JUDGE MOLOTO:  May the Chamber please move into private session.

 2                           [Private session]

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20                           [Open session]

21             THE REGISTRAR:  Your Honours, we're back in open session.

22             JUDGE MOLOTO:  Thank you so much, Madam Registrar.

23             Yes, Mr. Rogers.

24             MR. ROGERS:  Thank you, Your Honours.

25             Another man was also in Tal Zekha's house.  He too had been

Page 275

 1     forced to leave Grabanice on the 21st of May in the Serb attack.  But KLA

 2     soldiers came for that other man and the other man was forced to leave

 3     there by KLA soldiers who kicked and beat him, witnessed by Witness 3.

 4     He was taken away with someone called Fadil Fazliu.  One of the KLA

 5     members that took them was called Ujku, or Pjeter Shala was his name,

 6     also known as Ujku.  He was, the Prosecution says, a member of the MP of

 7     the KLA and a member of the JCE.  He wore a black uniform, was shouting

 8     abuse at the other man and Fazliu as they were taken downstairs, all the

 9     time calling them traitors.

10             Lahi Brahimaj began looking for Witness 3, the Prosecution says,

11     around the 30th of June, 1998.  He appeared -- Lahi appeared, at

12     Tal Zekha's house, where Witness 3 was, and asked Witness 3 to go with

13     him to Jabllanice.  The car being driven by Lahi Brahimaj was a Mercedes

14     car that it is said belonged to Skender Kuci.  Lahi took Witness 3 to

15     what he called the staff -- what Witness 3 called the staff headquarters

16     in Jabllanice, where there was a prison.  He was shown this paragraph and

17     identified this as the place where he had been taken.  And so perhaps

18     it's not offensive to call it Jabllanice prison on this one because this

19     is -- the witness identified as the prison he was taken to.

20             He said he was kept prisoner in the building on the right-hand

21     side in the photograph consistent with the --

22             JUDGE MOLOTO:  We have no pictures.

23             MR. ROGERS:  Oh, I'm sorry.

24             JUDGE MOLOTO:  Thank you.

25             MR. ROGERS:  Picture.  We have vision.  All right.  Thank you.

Page 276

 1             He says he was in the building on the right-hand side of the

 2     photograph.

 3             After he was taken there --

 4             JUDGE MOLOTO:  Yes, Mr. Harvey.

 5             MR. HARVEY:  I'm sorry, lest silence be thought to be consent, it

 6     is still objectionable, Your Honours.  I hate to interrupt, but it really

 7     is no good keeping on plugging away with labels that should never have

 8     been on photographs in the first place.

 9             JUDGE MOLOTO:  Mr. --

10             MR. ROGERS:  I hear, I hear what is said.

11             Your Honours, the witness describes being detained in that

12     building on the right-hand side where he was put into a room.  Other

13     people came in and they beat him.  There were two other people there.

14     One was called Skender Kuci.  Witness 3 was beaten with baseball bats

15     until he lost consciousness.  He says he was detained two nights and

16     three days, but was himself only beaten on the first day.  He had his

17     hands tied at night, as did the other two men.  He said Nazmi Brahimaj

18     was one of his attackers.  He kicked him.  The others beat Skender Kuci

19     and the other man.  They were terribly injured, the two other men.  He

20     said Skender was black on one side, the other man was swollen.

21     Skender Kuci was crying in pain and moaning, but the other could not

22     move.  He further described the condition of the other man, that the

23     Prosecution says is Pal Krasniqi, as follows:

24             "He was beaten to a pulp.  He was not in a position to get up,

25     let alone walk in the courtyard.  He used to pee in his pants."

Page 277

 1             At one point Witness 3 describes being taken into a room next to

 2     the one he was beaten in.  There he appeared before Lahi Brahimaj who

 3     accused him of supporting the Serb police.  There were two women in the

 4     room as well.  Lahi told them to practice on him and the women started to

 5     beat him as hard as they could with what he described as a kind of

 6     telescope on his hands.  This lasted five or ten minutes.  Lahi, he said,

 7     had a revolver, which he said to Witness 3 he should use to kill himself.

 8     Another man in the room told Witness 3 to admit everything.  He said,

 9     "I'll cut your throat and then you will have to admit everything."

10     Witness 3 decided that at that point it was time to run away.

11             When he returned to the room where the other two were, he decided

12     he was going to run away.  He escaped through a side window, did not see

13     Skender Kuci or the other man, Pal Krasniqi, again.

14             Your Honours should have a photograph I hope -- no?  Yes?  I'm

15     grateful.

16             Which the witness marked during the course of the last trial, and

17     he marked two rooms, one on the right he said was the room that he

18     escaped from and is marked SK, together with Skender Kuci, and the room

19     on the left marked L is the room he says that he went into where

20     Lahi Brahimaj was and where he was beaten on his hands.

21             He ran out of the building towards the Prosecution says is a

22     brook or a stream at the end of this compound area and escaped.  He says

23     Skender Kuci followed him but he didn't make it.

24             After his escape, sometime later, he saw Lahi Brahimaj again.

25     Lahi took him to his -- Lahi Brahimaj's house, and there accused him that

Page 278

 1     Skender Kuci had promised the witness, 3, 10.000 Deutschemarks to help

 2     him escape.  Lahi slapped Witness 3 around the face, forced him into the

 3     boot of the Mercedes car, and drove him to the staff headquarters, he

 4     describes the staff headquarters.  Lahi drove him around in the trunk of

 5     the car and kicked him, and at some point he stopped the car, opened the

 6     trunk, and carried out what the Prosecution would describe as a mock

 7     execution.  Lahi pulled out his gun and asked -- or a gun and asked

 8     Witness 3 if he should pull the trigger.  Witness 3 said yes and Lahi

 9     fired.  He saw a flame and heard a click and felt some pain but realised

10     he had not been shot.  Thank you.  Lahi Brahimaj shut the trunk and drove

11     off to Gllogjan to the home of Ramush Haradinaj.

12             Your Honours, Witness Kabashi also describes seeing Skender Kuci

13     and Pal Krasniqi at Jabllanice in June or July 1998.  In fact, around the

14     10th of July, 1998, Pal Krasniqi had gone to Jabllanice to join the KLA

15     and worked for a few days before being arrested as a spy and detained in

16     Jabllanice prison.  Kuci's name had appeared on a list of wanted persons

17     around the 12th of July, 1998, which I mentioned earlier on, the list of

18     wanted persons.  Kuci's brother had been a police officer.  He was

19     abducted, Kuci, from his home in Zahac, also the home village of

20     Witness Kabashi and taken to the Jabllanice compound in his own

21     Mercedes Benz car where he was detained and beaten.

22             Kabashi saw Kuci there and spoke to him and was told that Kuci

23     had been accused of being a spy.  He spoke to Lahi Brahimaj about Kuci

24     and Brahimaj said that he, Kuci, was a big fish, which Kabashi took to

25     mean a Serb spy.  Kabashi said it wasn't true and that Lahi informed him

Page 279

 1     he believed that Kuci was working for the Serb secret service.  He also,

 2     Kabashi, saw Krasniqi -- Pal Krasniqi looking very scared, somebody that

 3     he had known, Pal Krasniqi, for a long time.  And Krasniqi told him that

 4     he had admitted to being a spy under torture in order to make the torture

 5     stop.  He said he had gone to join the KLA in Jabllanice, but after a few

 6     days he was accused of being a spy and imprisoned.  Kabashi was troubled,

 7     went home that night, and talked to his family about the condition of the

 8     two men, who urged him to try to do something to save them.  But when he

 9     returned the next day Skender Kuci was in a very bad way, his belly was

10     bloated.  He asked those in the imprisoning the men what had happened,

11     and they said that Skender and a man from Grabanice had tried to escape.

12             It appears, Your Honours, from the evidence that KLA subzone

13     commander Rrustem Tetaj, who had involvement in what subsequently

14     happened with Kuci, became aware of the detention of Kuci and informed

15     Mr. Haradinaj who together they went to Jabllanice in order to seek the

16     immediate release of Skender Kuci.  Haradinaj spoke to Nazmi Brahimaj,

17     calling to Rrustem Tetaj, who responded that Kuci had tried to escape and

18     had been slightly injured and that he would be released as soon as he

19     recovered.  Ramush Haradinaj ordered that he be taken to the hospital in

20     Irzniq.  He was taken to the hospital but died of his injuries.  His body

21     was buried initially near to the mosque and cemetery in Jabllanice and

22     was ultimately exhumed and moved.  An OMPF autopsy reveals records of

23     multiple fractures to his body.

24             Kabashi provides a little further information as to who were

25     responsible for beatings generally.  He said those who usually beat the

Page 280

 1     prisoners were Lahi Brahimaj, a man called Bandash, Pjeter Shala known as

 2     Ujku; Idriz Balaj, and two others, and he describes Mr. Balaj as being

 3     the cruellest.  He recounts a particular incident relating to another man

 4     called Jah Bushati.  Two protected witnesses, who will corroborate, the

 5     Prosecution says, Mr. Kabashi's account, as they recount how, to some

 6     extent at least, as they account how Jah Bushati was detained at the

 7     Jabllanice prison around the spring of 1998, and so severely mistreated

 8     while in detention that he could barely walk.  He like the other victims

 9     in this case was detained and mistreated by the KLA at Jabllanice on

10     suspicion of being a Serb collaborator.

11             Your Honours, I'm conscious of the time.  I have one count left

12     to deal with.  Is this a convenient moment to break?

13             JUDGE MOLOTO:  It is indeed if it's convenient to you.  We will

14     take a break and come back at quarter to.  Court adjourned.

15                           --- Recess taken at 5.16 p.m.

16                           --- On resuming at 5.45 p.m.

17             JUDGE MOLOTO:  Mr. Rogers.

18             MR. ROGERS:  Thank you, Your Honour.

19             Your Honour, I turn now to deal with Count 6.  Your Honour, this

20     is a count of cruel treatment and torture.

21             Your Honour, turning to the victim's detention at Jabllanice, he

22     was detained by the KLA, the Prosecution says and he says, because he was

23     a supporter of the LDK, of Ibrahim Rugova, its leader, and he did not

24     agree with the KLA strategies and actions.  In particular, he says he was

25     ordered by the KLA to kill eight LDK supporters, an order which he

Page 281

 1     refused to obey.  Lahi Brahimaj, Nazmi Brahimaj, and Alush Agushi gave

 2     him a list of names of LDK members that included his own nephew, Riza.

 3     And they asked him to kill those on the list particularly because no one

 4     would suspect him.

 5             Your Honours, he fled his own home village along with other

 6     villages following the Serb attack on Grabanice on the 19th of May, 1998.

 7     The KLA, including Lahi Brahimaj, accused, he says, the men of Grabanice

 8     of being traitors because they had not defended their positions against

 9     the Serb attack.  Towards the end of May -- sorry, when I say "he says,"

10     Witness 3 stated that position.

11             Towards the end of May 1998, the victim says he was abducted from

12     a house in Zhabel, pursuant to an order for arrest, he says, was signed

13     by Ramush Haradinaj and which he says he saw.  Pjeter Shala, also known

14     Ujku or Wolf and Arbnor Zejneli and other KLA members were involved in

15     this abduction during which the victim was kicked, beaten, and called a

16     traitor.  He was taken to Jabllanice, he says, where he saw other

17     villagers, about 20, who had also been made to go there.  Lahi Brahimaj

18     was swearing at them in the yard of the compound of the building we've

19     already identified.  He was saying:  If you don't go to free your

20     village, we will kill you, kill you all, and you won't have any place in

21     Kosovo.  He describes other KLA leaders being present, such as

22     Mr. Haradinaj, Nazmi Brahimaj, Alush Agushi, Naser Brahimaj, and

23     Gani Brahimaj.  Lahi Brahimaj, he says, asked the villagers to return to

24     the village to send out the Serbs.  Some were calling Lahi uncle so that

25     they may be saved he says, but Lahi said:  There is no uncle here for

Page 282

 1     you.

 2             During that time, that period in the yard, Lahi Brahimaj

 3     introduced Ramush Haradinaj to the gathered people as the commander

 4     Ramush Haradinaj.  They --

 5             MR. EMMERSON:  I'm sorry to rise.  Can I just ask Mr. Rogers to

 6     check whether at page 69, line 1, he meant to say Witness 3 or somebody

 7     else.

 8             JUDGE MOLOTO:  Mr. Rogers.

 9             MR. ROGERS:  Your Honour, no, I did mean to say Witness 3.

10     That's my reference to the men at Grabanice being traitors is from him,

11     Witness 3.

12             MR. EMMERSON:  Can it be made clear that the source of the

13     testimony being summarised is not Witness 3.  The allegation that is

14     being summarised in relation to Count 6 is not derived from Witness 3.

15             MR. ROGERS:  No, that's correct.

16             MR. EMMERSON:  So the remainder of the passage that has been

17     cited, although Mr. Rogers has not identified the witness or victim he is

18     referring to, is not Witness 3.

19             MR. ROGERS:  No, no, that's right.  That one piece was from

20     Witness 3.  That's why I interjected it in case Your Honours thought I

21     was talking about this witness.

22             JUDGE MOLOTO:  Sure.  Okay.  Thank you so much.

23             Thank you very much, Mr. Rogers.

24             MR. ROGERS:  Does that meet the concern?

25             MR. EMMERSON:  Yes.

Page 283

 1             MR. ROGERS:  Your Honours, just returning to the story.

 2             Yes, Mr. Brahimaj introduced Ramush Haradinaj as the commander.

 3     They were seated in the kitchen or canteen area of the barracks or prison

 4     building, and the villagers were standing in the yard.  He says

 5     Mr. Haradinaj warned the villagers that they could not live in Kosovo

 6     unless they first freed their village from the Serbs.  The villagers

 7     themselves left after some time.  And the victim, however, remained in

 8     Jabllanice for a short period before in fact he was released.  He wasn't

 9     free for very long.  Your Honours will of course have to dovetail the

10     story with other parts of the story that we have given so far.

11             The victim says that in the end of June or beginning of July 1998

12     four KLA soldiers stopped him on the road between Kosuriq and Catholic

13     Gllogjan.  They handcuffed him, put him in the trunk of a car, and drove

14     him to Jabllanice.  In Jabllanice the victim saw Ramush Haradinaj, Balaj,

15     Lahi and Nazmi Brahimaj, and others, but on this occasion Lahi Brahimaj

16     allowed him to go home, told him he had to come back whenever he,

17     Lahi Brahimaj, called him.

18             Sometime later between mid-July and August 1998, the victim says

19     he was captured again and this forms the main subject of Count 6.  Lahi

20     and Nazmi Brahimaj and other KLA members abducted him in Grabanice.  He

21     says they tied his hands with wire, threw him into the trunk of a car,

22     where it appears a number of the victims have ended up, and took him to

23     Jabllanice.  Lahi Brahimaj threatened the victim with execution if he did

24     not forget Ibrahim Rugova.  Lahi Brahimaj called Haradinaj, told him to

25     come to Jabllanice because they had arrested the victim.  In Jabllanice

Page 284

 1     the victim says he saw Haradinaj, Balaj, and Alush Agushi, and this was

 2     at the prison building that I have identified.

 3             Haradinaj ordered the beating of the victim, he says, by saying:

 4     So you brought him, go ahead and do with your job then, words to that

 5     effect --

 6             JUDGE MOLOTO:  Yes, Mr. --

 7             MR. EMMERSON:  Again, I'm pausing because I wouldn't want

 8     Your Honours to be under any misapprehension.  I don't know whether it's

 9     necessary to go into closed session or not, but Your Honours are fully

10     aware of the identity of the witness who's testimony is here being

11     summarised?

12             JUDGE MOLOTO:  Yes.

13             MR. EMMERSON:  And the relationship that that has with other

14     parts of the opening.  I simply say it because you may be left with the

15     impression that what you are hearing is an account from multiple witness

16     when in fact it's an account from a single witness which crosses a number

17     of counts.

18             JUDGE MOLOTO:  Thank you so much.

19             MR. ROGERS:  Your Honour, I hope I hadn't left you with that

20     impression.  If you have, I'm sure it's been fully corrected.

21             JUDGE MOLOTO:  I didn't have that impression.

22             MR. ROGERS:  Your Honours, in Jabllanice the victim says he saw

23     Haradinaj, Balaj, and Alush Agushi.  The victim says Haradinaj ordered

24     the beating of him saying:  So you brought him, go ahead with your job

25     then.  The victim says Lahi Brahimaj, Nazmi Brahimaj and KLA soldiers,

Page 285

 1     including one named Bandash, beat the victim.  The victim says he was

 2     kicked and hit with wooden sticks or baseball bats.

 3             The victim says Balaj threatened him with a pistol to his temple

 4     and said:  I never beat people.  I am here to kill them.  The victim says

 5     it was Haradinaj that controlled his beating to the extent that he

 6     stopped and started it.  The victim was hit so hard on his genitals that

 7     he fell to the ground.  Haradinaj grabbed his hair, spat in his face, and

 8     called him a traitor.

 9             After being beaten, the victim was thrown into the water-filled

10     basement in a four-room building on the compound and he was regularly

11     beaten in the yard.

12             Following his detention in the basement, Lahi Brahimaj

13     interrogated the victim and ultimately discovering that he had some use

14     and that he could cook, Brahimaj forced him to work in the kitchen in the

15     detention facility area in Jabllanice.

16             A few weeks later the victim finally escaped from Jabllanice

17     during an impending Serb attack.

18             Your Honours, in concluding my opening remarks, the Prosecution

19     says that having considered all of the evidence in this case and having

20     heard the submissions of all the parties, Your Honours will be left

21     satisfied and sure - or put it another way - satisfied beyond a

22     reasonable doubt that each of the accused is guilty of the crimes alleged

23     in this indictment.

24             Your Honours, those are my opening remarks.

25             JUDGE MOLOTO:  Thank you very much, Mr. Rogers.

Page 286

 1             Mr. Emmerson -- before you start, Mr. Emmerson, I see Mr. Harvey

 2     is on his feet.

 3             MR. HARVEY:  Your Honour, I'm only on my feet for one reason and

 4     that is because it does surprise me, it's a normal thing to do in opening

 5     a case, to inform the Judges of that which I am sure you are well aware,

 6     that -- which counts are faced by which accused.  And as Your Honours

 7     will recall, I hope, Mr. Brahimaj is before you only on one -- Counts 1,

 8     2, 4, and 6.  That wasn't made clear in the opening and I feel it

 9     requires underscoring at this stage.

10             JUDGE MOLOTO:  Thank you for that, Mr. Harvey.

11             MR. HARVEY:  Thank you.

12             JUDGE MOLOTO:  We -- I'm sure the Chamber is aware of the

13     indictment and have read the indictment.  We are aware of the counts that

14     Mr. Brahimaj faces.

15             MR. HARVEY:  It's just that his name was mentioned frequently in

16     relation to Counts 3 and 5 as well, and I just thought it was worth

17     underscoring at this point.  Thank you.

18             JUDGE MOLOTO:  We thank you for the underscoring.  Thank you so

19     much.

20             Mr. Emmerson.

21             MR. EMMERSON:  Your Honour, on a similar note, the concern that I

22     had which I raised just a moment ago about the manner in which

23     Prosecution are presenting the evidence emanating from a single witness,

24     which we understand is being put forward in this way in order to ensure

25     that there can be no tracing or cross-referencing through the indictment

Page 287

 1     which might, in one way or another, undermine protective measures, but it

 2     will become very important for Your Honours to realise that so far as

 3     Mr. Haradinaj is concerned - and I shall deal with this in a little

 4     detail in a moment or two - it is a single witness in respect of each of

 5     these counts who is making the allegations that you have heard, now

 6     potentially corroborated by a further witness.  And I'll deal with

 7     numbers in due course, but it's -- one can be left with the impression

 8     that there is more than one source, where in fact, as Your Honours will

 9     see, it becomes very important in due course in analysing this case, just

10     how narrow the impugned source of this information really is.

11             Can I indicate before I start that the submissions that I'm going

12     to make to you now are made solely on behalf of Ramush Haradinaj.

13             JUDGE MOLOTO:  We understand that.  Thank you so much.

14             MR. EMMERSON:  And, Your Honours, I take it as my starting point

15     that this is a new trial.  It is not - as Judge Moloto has emphasized

16     more than once - to be approached as the step-child of the original

17     child.  It is in effect a fresh trial but it is one in which the

18     Prosecution is re-hashing or seeking to re-hash old allegations on which

19     Mr. Haradinaj was found guilty by the trial -- found not guilty by the

20     Trial Chamber in the previous proceedings.

21             We recognise at the outset that this Chamber is not bound by

22     findings of fact either way returned by the previous Trial Chamber, and

23     anything that I say now or during the course of this trial is subject to

24     that overarching understanding.  But as the Appeals Chamber has held, it

25     doesn't follow that what occurred at the previous trial is irrelevant.

Page 288

 1     Certain issues, for example, are res judicata, decided and unappealed.

 2     Others, including disputed issues of admissibility, whilst they remain

 3     open, have been subject to guidance from the Appeals Chamber that the

 4     reason they remain open is because different questions of relevance may

 5     arise.  Plainly, if no different questions of relevance arise and if the

 6     Prosecution chose not to appeal a previous ruling in the previous

 7     proceedings, then it would be difficult for them to persuade you that it

 8     is not res judicata.  So to that extent, the previous trial can't simply

 9     be ignored.  Much will depend on the issue to which its relevance may

10     impinge.  But it will be, we say, particularly relevant in relation to

11     the two witnesses, Shefqet Kabashi and Witness 80, who were the basis for

12     the Prosecution's appeal that resulted in this partial re-trial.

13     (redacted)

14     (redacted)

15     (redacted)

16     (redacted)

17     (redacted)  There's no getting away from the fact that

18     if it were not for the absence of those two witnesses from the original

19     trial, we wouldn't be sitting here in this courtroom today.  The Appeals

20     Chamber considered that more should have been done to hear their

21     evidence, and as a result it ordered this partial re-trial on a confined

22     number of allegations relating to the KLA headquarters at Jabllanice, a

23     separate stronghold outside Mr. Haradinaj's immediate area of control.

24             Can I ask that you be shown the map on which the Prosecution

25     relies and which is to be admitted by agreement in evidence, which is

Page 289

 1     1.000/0026.  It's been shown to you already.

 2             It's page 9 in the hard copy bundle.  So it says I000/0026 rather

 3     than 1.000.  It looks like this.

 4             JUDGE MOLOTO:  We've got it.

 5             MR. EMMERSON:  And Mr. Rogers opened this to you a little earlier

 6     on, and he showed you that there were numbers --

 7             MR. ROGERS:  [Microphone not activated]

 8             MR. EMMERSON:  I have it as page 9 myself.

 9             JUDGE MOLOTO:  Page 9.

10             MR. ROGERS:  [Microphone not activated]

11             MR. EMMERSON:  And this was a map marked by Rrustem Tetaj, one of

12     the subzone commanders appointed in the emergence of what was a fledgling

13     organisation.  Your Honours will have appreciated that command structures

14     such as they were within the Kosovo Liberation Army during the indictment

15     period were horizontal rather than vertical, that the organisation was

16     very much a fledgling developing and emerging throughout the indictment

17     period.  And this map represents an attempt at organisation in the early

18     stages of the indictment period on or around the 23rd of May.  And as

19     Mr. Rogers told you, the unchallenged evidence is that there were four

20     subzones and four subzone commanders of whom Mr. Haradinaj was one,

21     Mr. Tetaj another, and Shemsedin Cekaj a third.  And you will see if you

22     look at the areas they are marked.

23             The important point for Your Honours to note from this map and

24     really the key point at the outset of these proceedings is Jabllanice's

25     location.  If Your Honours look just roughly halfway down the map on the

Page 290

 1     middle crease to an oval just past the right-hand side of centre, you

 2     will see Jabllanice.  It's an area on the opposite side of the Dukagjin

 3     zone from the four subzones that were created on the 23rd of May.  It

 4     existed wholly outside the four subzones that were created on the 23rd of

 5     May and wholly outside any area of responsibility that could on any view

 6     be attributed to Ramush Haradinaj.

 7             It is not without reason, Your Honours, that the Prosecution has

 8     never made an allegation of command responsibility in these proceedings.

 9     The reason is because there were no effective command structures in place

10     at any time during the indictment period which would have allowed the

11     Prosecution to invite the Court to seek to ascribe responsibility for a

12     failure to prevent or punish the commission of crimes.

13             So we are dealing with a very unusual case to come before this

14     Tribunal, the case of an emerging fledgling organisation, seeking to

15     bring together local village commands under a single unified control over

16     a nine-month period.  I say that is important because obviously at any

17     given time it's going to be vital for Your Honours to consider what the

18     nature of the organisation and reality on the ground was.  What you know

19     from this map, which Mr. Rogers himself urges upon you, is that at this

20     time at least Jabllanice operated entirely independently from the four

21     subzones that had been created by the end of May.  True it is that there

22     were attempts made thereafter to increase co-ordination between different

23     pockets of KLA activity in western Kosovo and elsewhere, but the notion

24     that there was a leader or leaders operating a vertical command structure

25     is and would be misconceived and cannot and is not alleged by the

Page 291

 1     Prosecution.  That's a very important starting point.

 2             Your Honours may come to the conclusion, having heard the

 3     evidence, that some crimes at least were committed.  You may conclude

 4     that some crimes were committed at Jabllanice, but the issue as far as

 5     Ramush Haradinaj is concerned is whether he participated, authorised, or

 6     condoned those crimes, or was party to a joint criminal enterprise that

 7     they be committed.

 8             There is no suggestion, nor could there be on the evidence, that

 9     Ramush Haradinaj ever had day-to-day operational control over Jabllanice.

10     There is no suggestion nor could there be on the evidence that he was

11     ever present at Jabllanice other than on particular occasions.  And with

12     the exception of two witnesses who I'm going to focus on in this opening

13     and who Mr. Rogers knows and recognises his case against Mr. Haradinaj

14     stands or falls on, with the exception of those two witnesses, Witnesses

15     80 and 81, there isn't a single witness who suggests that

16     Ramush Haradinaj ever did anything or was even present at Jabllanice

17     whilst anything untoward was occurring.

18             Witness 6, who Mr. Rogers has placed emphasis on, was detained at

19     Jabllanice for six weeks.  He never saw Ramush Haradinaj once.  Witness

20     3, again who Mr. Rogers extensively relies upon, was allegedly detained

21     and ill-treated at Jabllanice and elsewhere, but as you heard he was

22     eventually taken, so it is alleged, to Gllogjan; not as Mr. Rogers

23     mistakenly suggested to Mr. Haradinaj's home, but to the KLA headquarters

24     in Gllogjan, where he came across the commander.  Gllogjan was, of

25     course, at that point under the command of Ramush Haradinaj.  The

Page 292

 1     commander, faced with a man who was alleging ill-treatment by KLA

 2     officials form Jabllanice, fed him, housed him, made him safe.  This is

 3     his evidence.  And the following morning gave him a clear assurance that

 4     nothing untoward was ever occur to him again and nothing untoward ever

 5     did.

 6             Skender Kuci, a man you've heard something of whose remains were

 7     subsequently discovered and who died in Jabllanice -- oh, sorry, sorry, I

 8     should rephrase that, who died having been detained in Jabllanice on

 9     Prosecution's case, as Mr. Rogers adverted to in glancing terms, the

10     evidence of Rrustem Tetaj, which is admitted by agreement, is that he who

11     was, you've heard, was a subzone commander on the opposite side of the

12     Dukagjin zone from Jabllanice was made aware that a man called

13     Skender Kuci was being detained there.  He took that information, he

14     says, to Ramush Haradinaj.  What was his response?  Immediately with

15     Mr. Tetaj to drive right across the zone to find out what was going on,

16     to discuss the situation, according to Rrustem Tetaj, with Nazmi

17     Brahimaj; and then to order that Skender Kuci be released to a military

18     hospital where he could be properly treated --

19             JUDGE MOLOTO:  May I just interrupt you.  It's been brought to

20     the attention of the Chamber that it is probably desirable to redact

21     lines 22, 23, 24, 25, of page 75, and line 1 of page 76 because of

22     something that you said, Mr. Emmerson --

23             MR. EMMERSON:  Well, if it's a reference to Witness 80 and 81,

24     it's going to be impossible to conduct this trial without those

25     references, so I don't think it's anything more than that, is it?

Page 293

 1             JUDGE MOLOTO:  I don't know.

 2             MR. EMMERSON:  I don't know who's suggesting it should be

 3     redacted or why, so I can't really respond.  Shall we deal with it at the

 4     close of the proceedings or is it necessary to deal with it now?

 5             JUDGE MOLOTO:  Let's deal with it -- the problem is that by the

 6     close of the proceedings it will have gone out by the time if it is --

 7             MR. EMMERSON:  Perhaps if somebody could point out what the

 8     concern is.

 9                           [Trial Chamber and Legal Officer confer]

10             MR. ROGERS:  Your Honours ...

11             Your Honours, it may be better to briefly have a discussion in

12     private session while we deal with the issue, whether we need to be in

13     private session.

14             JUDGE MOLOTO:  May we please do so.

15                           [Private session]

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 294











11  Pages 294-295 redacted. Private session.















Page 296

 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 MOLOTO:  Thank you so much.

14             Yes, Mr. Emmerson.

15             MR. EMMERSON:  Your Honour, this is the first time that this

16     Tribunal or any other international criminal tribunal, has held a full

17     re-trial following an acquittal.  And it is in a number of other

18     important respects unique as well.  So before embarking on this

19     unprecedented process, I want, if I may, just to say a little about how

20     we got to this point.  It's over six years now since Mr. Haradinaj was

21     first indicted.  At the time he was a serving prime minister in the

22     provisional institutions of self-government established under the

23     auspices of UNMIK, the United Nations Mission in Kosovo.  He was widely

24     regarded as an excellent political leader, one who could unite Kosovo,

25     secure the support of the international community, and who was committed

Page 297

 1     to the protection of the rights of those pockets of Serb national

 2     minorities remaining inside Kosovo's boundaries after the war.

 3             As such, he represented a potent political threat to Serbia,

 4     which was at that time uncompromisingly committed to preventing Kosovo

 5     from achieving secession and independence and uncompromisingly committed

 6     to seeking the decapitation of its political leadership.  It is widely

 7     and publicly known that high-ranking Serbian officials made forceful

 8     representations to the Office of the Prosecutor seeking to have

 9     Mr. Haradinaj prosecuted.  The crimes against him in the original

10     indictment were based upon a dossier of evidence collected by the Serbian

11     intelligence service, the RDB, itself, an organisation that was known to

12     engage in the basest methods of evidence manipulation.

13             Remarkable as it may seem to those outside this courtroom, the

14     case against Mr. Haradinaj, as it was advanced by the Office of the

15     Prosecutor at the original trial and as it is advanced here, was and is

16     based primarily on an investigation conducted by the Serbian intelligence

17     services themselves.  It is now a matter of public record that lawyers

18     appointed to advise Madam del Ponte told her from the outset that there

19     was no sustainable case against Mr. Haradinaj.  She had to change her

20     legal team more than once.  In the end she found a team that was prepared

21     to draft an indictment and prosecute the case.  But when the case came up

22     and was put up for examination at trial, it predictably fell to pieces.

23     I say "predictably" because it had been predicted by her own lawyers.

24             There were five witnesses put forward at the original trial who

25     gave direct evidence against Ramush Haradinaj.  Four of them testified at

Page 298

 1     the first trial.  In the case of two of those four, the Trial Chamber

 2     found them to be wholly unreliable on core aspects of their evidence,

 3     namely, the supposed identification of Mr. Haradinaj, and reflected that

 4     in the judgement.  And in the case of the other two, the Trial Chamber

 5     having heard their evidence in chief declined even to allow it to remain

 6     on the record because they were so demonstrably unreliable and their

 7     allegations and evidence so fantastic that their testimony had to be

 8     interrupted by the Trial Chamber and stopped before they could even be

 9     subjected to cross-examination.  That is the type of material that this

10     corrupted Serbian investigation generated and still generates.  Neither

11     of those two witnesses, I'm pleased to say, are relied on by the

12     Prosecution in this re-trial, but it must be the case, therefore, that

13     they accept that two of the witnesses that they put up as direct --

14     giving direct testimony against Mr. Haradinaj at the original trial were

15     witnesses who could not conceivably be considered reliable witnesses of

16     truth, two of a very small number.

17             So it was in that context of a case so limpingly and appallingly

18     put together and based on such flimsy and wholly unreliable evidence that

19     the original Trial Chamber came to consider the evidence of the fifth

20     witness who gave evidence against Mr. Haradinaj.  The man who we know as

21     Witness X.  He was number five and he did not in fact testify.  I'm going

22     to return to him in a moment or two.

23             As the Prosecution case inevitably unravelled last time round, it

24     became clearer and clearer that there was no case for Mr. Haradinaj to

25     answer.  The Defence accordingly called no Defence evidence, another

Page 299

 1     unique feature of these proceedings.  In acquitting Mr. Haradinaj of all

 2     charges and finding that the JCE alleged against him then, and still

 3     alleged against him, did not exist at all, the original Trial Chamber

 4     effectively agreed that there never was a case for him to answer.  There

 5     could, we say, be no clearer endorsement of Mr. Haradinaj's innocence

 6     than an acquittal by a Trial Chamber in the absence of any need to mount

 7     a Defence case at all.

 8             The Appeals Chamber in its judgement took a different view,

 9     holding that the absence of two crucial witnesses - I won't name

10     them - had fatally undermined the original Trial Chamber's verdict, not

11     as regards the JCE as a whole, but solely as regards to six counts

12     concerned with Jabllanice.  That decision came as a surprise to all

13     concerned, not least to the Prosecution themselves.  They had not been in

14     a position before the Appeals Chamber even to assert that either of those

15     witnesses would be willing to testify at any potential re-trial.

16     Surprising, therefore, that such a re-trial should be ordered on that

17     basis, but a surprise as much to the Prosecution as to the Defence.  And

18     yet here we are once again predictably enough in exactly the same

19     position all over again with neither of those two witnesses currently

20     indicating a willingness to testify.  (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24             Shefqet Kabashi has indicated that for principled reasons he does

25     not wish to testify in these proceedings.  He has made it clear over and

Page 300

 1     over again that his unwillingness to testify is not because he is afraid

 2     of anyone and not because anyone has offered him any kind of inducement.

 3     It is because he does not consider that the Prosecution has acted fairly.

 4     More importantly, even if he were to testify, his statements do not make

 5     any allegation of criminal conduct at all against Mr. Haradinaj.  Indeed,

 6     in his latest interview with Mr. Rogers, he complained loudly and

 7     vociferously about the injustice of putting Mr. Haradinaj on trial all

 8     over again.  He was given numerous opportunities to testify at the

 9     original trial, but steadfastly maintained that he didn't want to

10     participate and wasn't prepared to do so.  We will see tomorrow whether

11     anything has changed.  The important point, though, in his case is that

12     he made his own choice for his own reasons, reasons which have nothing to

13     do with any fear or any alleged intimidation.

14             (redacted) I apologise, can I ask

15     for a redaction.

16             JUDGE MOLOTO:  Can we have a redaction, please.  Twice.

17             MR. EMMERSON:  Witness X is a very different kettle of fish.  The

18     Prosecution, as I indicated, relies on statements that that witness made

19     which include direct allegations of -- concerning the acts and conducts

20     of Mr. Haradinaj across several of the counts on the amended indictment.

21     Like Shefqet Kabashi this man was also given multiple opportunities to

22     testify at the original trial and he came up with a veritable smorgasbord

23     of reasons why he shouldn't be required to do so.  Arrangements were made

24     for him to give evidence via compelled videolink, but he steadfastly

25     refused to come and testify.

Page 301

 1             In his case, Your Honours, we say there are very strong

 2     motivations for him not to want to give evidence.  That's not because of

 3     any genuine fear of the consequences of telling the truth, but because

 4     the whole of his testimony is a demonstrable series of lies.  There are

 5     overwhelming challenges to the credibility of the inconsistent accounts

 6     he's given, not least of which is that a key witness, Witness 6, on whom

 7     Mr. Rogers places heavy reliance and who was at Jabllanice throughout the

 8     six-week period and who was shown a photograph of Witness X, was

 9     completely categorical that he had never been there during the time that

10     he claims he was detained in the same room in which Witness 6 claimed he

11     was detained.

12             Another witness who's been mentioned -- another individual who's

13     been mentioned by Mr. Rogers and who gave evidence at the previous trial

14     is a man called Fadil Fazliu who's cited as a victim in Count 6.  He

15     testified last time round that the allegations made by Witness X, which

16     he would have been present at, had they occurred, simply did not happen.

17     How does the Prosecution respond?  How does a fair Prosecutor respond?

18     They just drop Fadil Fazliu from their witness list because it doesn't

19     fit in with their case.  It would be a matter for Your Honours to

20     consider how to redress that obvious unfairness, but he's cited as a

21     victim and Mr. Rogers doesn't have the courage to put him in the witness

22     box.

23             Not only that, there is incontrovertible forensic evidence that

24     establishes beyond the peradventure that the allegations that Witness X

25     makes simply cannot be true.  I'm not going to elaborate the details in

Page 302

 1     opening, but there is forensic -- independent forensic expert evidence

 2     about the manner in which certain injuries could have been inflicted

 3     which give an unequivocal lie to the central allegations that this man

 4     has made, no surprise then that he is less than keen to make them on oath

 5     in front of an international tribunal.

 6             Your Honours, there are very many reasons, it doesn't take me to

 7     point this out, there are very many reasons why a witness might choose

 8     not to testify.  One possible reason, of course, is that they are

 9     genuinely afraid of telling the truth.  There is no suggestion, though,

10     and I want to underline this, and I will come back to it, despite some of

11     the rumours and labels that have been attached to this trial, there is no

12     suggestion - and never has been - that Mr. Haradinaj has ever been

13     responsible for intimidating any witness, directly or indirectly, and

14     there have been repeated judicial findings in the proceedings to date to

15     the effect that he has not.

16             Notwithstanding that fact, a view has gained currency that the

17     original trial was flawed by intimidation.  There are, as we say, and I

18     don't need to labour the point, many other reasons why a witness like

19     Witness X might not want to give evidence on oath in support of

20     statements he's made to the Prosecution, foremost amongst these, of

21     course, is his realisation that he's lied and that his lies will be

22     exposed before the world.  That is the position, we say, with Witness X.

23     He has prevaricated throughout about testifying and given a range of

24     reasons why he's not willing to do so, but the real reason will become

25     clear if he ever does finally testify, because if he does give evidence,

Page 303

 1     an outcome which is still open to very serious doubt in view of his

 2     previous conduct and his current stated position, he will, we say, be

 3     exposed as a liar and a perjurer.

 4             In short, we are beginning this re-trial precisely where the

 5     original trial left off.  I'm going to ask for what I'm about to say to

 6     be redacted is probably the easiest way of doing it rather than going

 7     into closed session because it's a sentence or two.  Very well, closed

 8     session, please.

 9             JUDGE MOLOTO:  Sorry, are you asking for closed session?

10             MR. EMMERSON:  Yes.

11             JUDGE MOLOTO:  May we please have a closed session -- private

12     session.

13                           [Private session]

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 304

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12                           [Open session]

13             THE REGISTRAR:  Your Honours, we're back in open session.

14             JUDGE MOLOTO:  Thank you so much.

15             Yes, Mr. Emmerson.

16             MR. EMMERSON:  So far as Mr. Haradinaj is concerned, there is

17     only one witness who makes any allegations against him, and that is

18     Witness 81.  This witness was first put in contact with the Prosecution

19     in October 2010, that is more than two and a half years after

20     Mr. Haradinaj's acquittal.  By the time he gave his first account, the

21     allegations made by the Prosecution and made on the basis of Witness X's

22     evidence had been very widely reported and were publicly known.  They

23     were well-known and easy to mimic, and yet in the detail it is clear that

24     the attempt at mimicry has failed.  It's another extraordinary feature of

25     this case that supposedly out of the blue and after its appeal, the

Page 305

 1     Prosecution now has a new witness brought to its attention who purports

 2     to corroborate Witness 80.  Mr. Rogers rightly recognises, because he

 3     knows what's coming, that there are major inconsistencies.

 4             Well, I'm -- see, this is the difficulty because Mr. Rogers in

 5     open session has made the point that I've just made without any concern,

 6     namely, that it's a corroborating witness of Witness 80.  I'm afraid I'm

 7     being held to a completely variable and unworkable standard.

 8             JUDGE MOLOTO:  You may proceed.  We know why we did what we did

 9     earlier.

10             MR. EMMERSON:  Thank you.

11             The timing and circumstances in which Witness 81 came to the

12     attention of the Office of the Prosecutor cast very serious doubts on his

13     integrity and credibility.  As Mr. Rogers acknowledges and as we would

14     put it, his statements are riddled with inconsistencies, and he makes

15     assertions throughout that are demonstrably false.  But all that is a

16     matter for cross-examination if he attends.  But it is right that at the

17     outset that Your Honours should know what kind of man he is.

18             This witness, the only witness who is currently expected to

19     testify against Mr. Haradinaj in this re-trial, is a man with a lengthy

20     criminal record, including numerous offences of dishonesty, who has been

21     found by an international tribunal to be a wholly unreliable Prosecution

22     witness.  In a prosecution in Kosovo, and I won't mention it in order

23     risking identifying him, in a prosecution in Kosovo before international

24     judges appointed by UNMIK, he made a statement, complainant statement,

25     alleging that he had been seriously mistreated and abducted.  His

Page 306

 1     statements to the investigating judge were at first instance admitted at

 2     trial and he was not required to give evidence viva voce because he

 3     claimed that he had been intimidated.  That well illustrates the danger,

 4     if I may say so, of taking allegations of intimidation at face value

 5     coming, as they do, from tainted witnesses.  Because on appeal to the

 6     Supreme Court of Kosovo, again comprised of international judges

 7     appointed by the UN, it was found, we say, inevitably that his statements

 8     were not credible and a re-trial was ordered to assure that he could be

 9     cross-examined and give evidence viva voce.  At that point, the

10     Prosecutor withdrew the charges rather than proceed in reliance on his

11     testimony.  Other witnesses in the same trial alleged that their evidence

12     had been actively manipulated by the Serb police, a feature which, as we

13     shall see, has also beset this investigation and these proceedings.

14             Your Honours should also know that one of his previous criminal

15     convictions is for making false allegations of criminal conduct to the

16     police; in other words, attempting to pervert the course of justice.  He

17     has form, in other words, for lying to the authorities at least twice and

18     to the court at least once in an effort to procure a conviction of

19     another.  Precisely what we say he is doing here.  It is, Your Honours,

20     most surprising that a responsible Prosecutor is prepared to rely on that

21     sort of evidence before an international criminal court and to stake its

22     reputation on such a dubious witness.  It is all the more surprising if,

23     as now seems likely, he ends up being the only witness in relation to

24     Mr. Haradinaj upon whom the Prosecution can directly rely.  He is the

25     sort of witness, Your Honours, upon whom one simply would not hang a cat.

Page 307

 1             Since the inception of these proceedings, the Prosecution has

 2     sought to hide behind bogus allegations of witness intimidation made by

 3     wholly unreliable witnesses like this man as a pretext to conceal the

 4     evidential shortcomings in a prosecution that should never have been

 5     brought in the first place.  There is, it appears, every reason and

 6     indication to believe that Mr. Rogers intends to continue in that

 7     tradition.

 8             For the rest of the charges, Your Honour, the Prosecution relies

 9     on the same vague JCE that was found not proven in the original trial.  I

10     want just to say a word or two, if I may, about the content of the

11     material that that then gives rise to.  There are really three broad

12     categories, and they have each been mentioned with different degrees of

13     diffidence.

14             The first is the material that's going to be put before you by

15     the "head of analytical department of the RDB," Serbian intelligence

16     services, a man called Zoran Stijovic.  To the chagrin, surprise, of the

17     previous Trial Chamber, this man admitted in answers to me -- to

18     questions from me and from Judge Orie that the methodology used to obtain

19     the sort of material Mr. Rogers wants you to look at includes torture,

20     blackmail, and bribery, informants who were either ill-treated or

21     threatened or bribed or very often blackmailed; in other words, put into

22     a sexually compromising position and then exploited.  Much of the

23     material is anonymous.  Mr. Rogers in the end said to you, well, it's

24     there for what it's worth.  It's hard to imagine a Prosecutor putting it

25     with less enthusiasm.  It's there for what it's worth.  Well, I'll tell

Page 308

 1     you what it's worth, if I may, it's worth nothing.

 2             Secondly, KLA communiqués.  It's suggested that you ought to draw

 3     an inference of a joint criminal enterprise involving Mr. Haradinaj from

 4     the publication of KLA communiqués.  In order to understand how this

 5     works, it's necessary to look at some of the material about how the

 6     Kosovo Liberation Army started to come into existence, but the so-called

 7     General Staff was an organisation loosely comprised of individuals mainly

 8     based outside Kosovo who had very little connection with officers or

 9     officials on the ground and certainly was not directly issuing commands

10     or the subject of any command structure in relation to the Kosovo

11     Liberation Army in western Kosovo and in the Dukagjin region generally.

12             Their press spokesman was a man called Jakup Krasniqi, who gave

13     evidence at the previous trial, and who is the author of these

14     communiqués.  None of these documents were authored by Mr. Haradinaj or

15     issued on his authority.  They don't reflect the policy of Mr. Haradinaj

16     or of the KLA in the Dukagjin area, and none of the communiqués relates

17     to any alleged incident on the indictment in relation to Jabllanice.

18     Evidence about the communiqués was given at trial which led to serious

19     doubts about their reliability and the accuracy of their contents.  And

20     the original Trial Chamber found them to be unreliable propaganda tools

21     which frequently exaggerated successes and minimised set-backs and

22     failures and that's why they found, as we will invite you to find, that

23     no policy of kidnapping, killing, or mistreating civilians can be

24     inferred from that material and certainly nothing which could conceivably

25     be linked to Mr. Haradinaj, who did not operate within a command

Page 309

 1     structure issued -- or instructions or communiqués issued by the

 2     so-called self-styled General Staff.

 3             Black lists was the third examples that Mr. Rogers gave you.  He

 4     suggested that there was good evidence of the KLA maintaining black lists

 5     of targeted civilians, and he told you that you would be entitled to

 6     consider the testimony of Witness 17 who received a black list containing

 7     a list of names, including the name of Skender Kuci, one of the victims

 8     in the six counts and whose remains were subsequently found.

 9             Witness 17 was the head of a brigade of soldiers who entered

10     Kosovo under the banner of the FARK, the F-A-R-K.  They were an

11     independent army from the Kosovo Liberation Army and there was a period

12     of time during which there were conflicts between the two groupings after

13     the FARK entered across the mountains from Albania into Kosovo.

14     Thereafter, thereafter there was a process of integration, although a

15     rather unhappy truce and alliance existed between the two.  The barracks

16     at Baran, which is to the north of the area shown as being within the

17     four subzones, was commanded by Witness 17 on behalf of FARK.  Nothing,

18     as it happens, directly to do with the separately operating Kosovo

19     Liberation Army.  He received at some point a list of names.  He doesn't

20     know who gave it to him, he says.  He doesn't know what its purpose was,

21     he says.  He didn't even know where it had come from or when he had

22     received it, but one thing he was sure of is he never brought it to

23     Ramush Haradinaj's attention and it certainly didn't come from him or

24     through him or anyone associated with him.

25             So what are we left with?  A man's got a list and on the list is

Page 310

 1     a name of a victim who it appears was detained at Jabllanice and

 2     subsequently died.  But who is that victim?  That victim is Skender Kuci.

 3     Skender Kuci is the man who Rrustem Tetaj informed Ramush Haradinaj was

 4     being detained and who Ramush Haradinaj immediately travelled across the

 5     zone in order to secure the release of.  Hardly, we say, consistent with

 6     an allegation of joint criminal enterprise.  It is no surprise,

 7     Your Honours, that lawyers advised this case shouldn't be brought and no

 8     surprise that the previous Trial Chamber dismissed it.

 9             There are as well considerable areas of evidence upon which the

10     Prosecution is proposing to rely at which, in our submission, are wholly

11     irrelevant for the limited issues that you have to consider concerning

12     Jabllanice on the opposite side of the Dukagjin zone.

13             First of all, there is a section of the Prosecution's opening

14     brief and an indication that they intend to rely upon an incident on the

15     18th of April in Gllogjan in which members of the Stojanovic family were

16     beaten by a mob, if I can put it that way.  Those allegations formed the

17     basis of Counts 3 and 4 of the original indictment upon which

18     Mr. Haradinaj was acquitted.  It's an allegation that predates the agreed

19     date of the start of armed conflict and is not therefore subject, in any

20     event, to the requirements of international humanitarian law.  It has

21     nothing whatsoever to do with Jabllanice.  It's far removed in space and

22     time from any of the allegations on this indictment.  It can't be relied

23     upon as evidence of system or bad character because the Prosecution

24     accepts Mr. Haradinaj was acquitted of it and that is res judicata, and

25     it was in any event a spontaneous attack by local villagers in response

Page 311

 1     to the fact that the Serb forces had used the Stojanovic family home as a

 2     military facility in order to launch an attack which resulted in the

 3     death of three teenagers and a vast amount of damage and injury in the

 4     village of Gllogjan.  It has got nothing to do with this case but once

 5     again because the Prosecution is driven at this stage to try to put

 6     anything it can together, they are scraping the barrel.

 7             Another classic example.  FARK, I've already indicated the

 8     background.  FARK entered Kosovo from Albania.  There was a period of

 9     conflict and a number of incidents of conflict between the two forces

10     immediately after FARK brigades came in.  They were eventually resolved

11     with the two forces integrating and distributing responsibility, and out

12     of all of that complex background the Prosecution have selected a single

13     incident on the 4th of July, again in Gllogjan and Irzniq, on the

14     opposite side of the Dukagjin zone from Jabllanice, in which it is said

15     that there was a confrontation and one of the FARK soldiers was shot.

16     Well, if -- even if that's right, the reason you find no reference to it

17     in the original Trial Chamber's judgement is because it's got nothing to

18     do with the allegations on this indictment.  It's a desperate stuff --

19     it's got nothing to do with the allegations on the indictment because ti

20     has got nothing to do with civilians or opponents.  It was, if anything,

21     part of a military conflict between two armed forces and it's got

22     absolutely nothing to do with the detention of civilians or others at

23     Jabllanice occurring, as it allegedly did, many miles away in Gllogjan.

24     Part of the conflict between two Kosovar Albanian armed forces many miles

25     removed.  So nothing, we say, to do with this case.  But a clumsy attempt

Page 312

 1     to clutch at straws precisely because the Prosecution has no credible

 2     evidence that Mr. Haradinaj ever participated in, authorised, condoned

 3     any of the crimes against civilians that are alleged to have been

 4     committed at Jabllanice and that is what this partial re-trial is truly

 5     all about.

 6             As Your Honours know, there's plenty of evidence from the

 7     original trial about command structures within the KLA during this early

 8     period of its development.  I just want to draw up four short themes in

 9     the time that remains.  First of all, the evidence shows that in the

10     period of the indictment the KLA was struggling to establish itself.

11     During the first half of 1998 it was made up of a small number of

12     committed fighters like Mr. Haradinaj together with a much larger number

13     of ill-trained, ill-equipped volunteers, village guards.  The essential

14     point as I opened at the very outset is that its structure was horizontal

15     not vertical, that's why there is no allegation under Article 7(3) of the

16     Statute.  At that point in its history, the KLA lacked any formal or

17     effective command structure and the attempt that Mr. Rogers has made to

18     lay at the door of Ramush Haradinaj, commander at the opposite side of

19     the Dukagjin zone, crimes that were allegedly committed in his absence

20     inside Jabllanice is feeble.

21             Most of those who fought for the KLA were villagers who returned

22     to their daily lives when they weren't involved in the fighting, fighters

23     by night, farmers by day.  And as it's said by one of the witnesses in

24     the original trial, Mr. Haradinaj was in reality the commander of those

25     who chose on any particular day to follow him.  The level of

Page 313

 1     co-ordination between the different villages where the KLA was able to

 2     set up village defences was minimal.  It has to be taken into account

 3     that all of this took place during repeated Serbian offences into the

 4     area with which we are concerned.

 5             One of the points of interest in Mr. Rogers' opening was his

 6     suggestion that there was a free area within which the KLA was

 7     effectively free to operate.  In the original trial the Prosecution

 8     called that an area of total control and they relied on that map by

 9     Colonel John Crosland to establish what the boundaries of that total area

10     of control were until Mr. Crosland gave evidence of course, and when he

11     gave evidence - and assuming Mr. Rogers has actually read the transcript

12     he will know what it was that Colonel Crosland actually said, which is

13     that it would be completely inappropriate to make the suggestion that the

14     boundary he had drawn represented an area of total control.  On the

15     contrary he said -- and just to find out the precise terms:

16     "Paramilitaries used to terrify the civilian population from the Bosnian

17     war stationed in Gjakove and Peje.  I would have been surprised if those

18     forces hadn't entered the zone like flies to a jam pot."

19             So, we're dealing with a situation which was porous, where there

20     were conflicts involving Serb forces, very poorly armed, very poorly

21     trained, not trained at all in effect, village volunteers, struggling to

22     create some sort of co-ordinated structure.  That is the context in which

23     Mr. Rogers wants you to hold Mr. Haradinaj responsible for crimes that

24     were committed in his absence in a facility on the opposite side of the

25     Dukagjin zone over which he was not the effective commander.

Page 314

 1             The evidence, Your Honours, shows that there was certainly no

 2     common agreement in respect of commissions of -- the commission of crimes

 3     in detention facilities by the KLA at all and certainly no such agreement

 4     in relation to Jabllanice.  Leaving those two witnesses aside, X and 81,

 5     there is no direct evidence at all implicating Mr. Haradinaj.  He was on

 6     the evidence hardly ever there.  He certainly did not exercise day-to-day

 7     effective command and control, and of the three witnesses who did testify

 8     to his direct intervention, one was Rrustem Tetaj, who testified to his

 9     intervention in Jabllanice in order to secure the release of an injured

10     person who'd been wrongly detained there, the second was Witness 3 who

11     said they -- ill-treated at Jabllanice.  When he arrived at Gllogjan, he

12     was protected and given a treatment to ensure he was never ill-treated

13     again.  And the third, another desperate attempt by the Prosecution,

14     relates to a man called Achilleas Pappas, who was a member of the

15     European Community Monitoring Mission, who was briefly detained on the

16     opposite side of the zone from Jabllanice, as he was driving into a war

17     zone.  In other words, there was a Serbian offensive going on on the day

18     and he drove in a Land Rover directly into the line of fire.  He was

19     stopped by KLA soldiers and treated in a manner which, on his

20     description, was inappropriate, rough-handled, and rude, until

21     Mr. Haradinaj turned up.  And as soon as he turned up, Mr. Pappas was

22     treated with complete courtesy and professionalism, and in his own words

23     given a proper handling and sent safely on his way, and he described

24     Mr. Haradinaj as having been professional in his dealings with him

25     throughout.

Page 315

 1             Your Honours, as a soldier, we make no secret of the fact that

 2     Mr. Haradinaj was hard, brave, and effective.  His targets were

 3     combatants, not civilians.  Faced with the overwhelming fire-power of the

 4     Serbian forces, he and others managed to put together, to cobble

 5     together, a force sufficient to defend civilian enclaves in an area which

 6     was subject to a Serbian, effectively, scorched-earth policy.  He led

 7     always by example and never expected anyone to fight battles he wasn't

 8     prepared to fight himself.  He managed to fight off with a handful of

 9     people the Serbian offensive on Gllogjan which has become known as one of

10     the key moments in the Kosovar struggle for liberation from the

11     domination of Serbia.  But as you will hear from any witness of

12     credibility, he is, was, and always has been a fighter of honour.  The

13     targeting of civilians was never one of Mr. Haradinaj's military

14     objectives, and he never ordered or condoned the ill-treatment of

15     detainees.  That sort of dishonourable conduct is the very antithesis of

16     the principles which have guided him.

17             As prime minister of Kosovo after the war, he was widely praised

18     by the international community for his hundred days in office.  He was

19     regarded as a leader who genuinely reached out to the Serbian population,

20     who sought to forge a common and integrated future for Kosovo, but his

21     time in office was cut short by the OTP's indictment, just as the Serbian

22     authorities intended that it should be.

23             He resigned immediately the indictment was issued and he

24     voluntarily surrendered himself to the ICTY, in stark contrast as the

25     Trial Chamber at the time noted, to the attitude of other leaders who'd

Page 316

 1     been indicted by this Tribunal.  And it's interesting as we start to move

 2     into the evidence, it's just interesting to ask Your Honours to bear this

 3     in mind.  This is a man who believed and fought for his country's

 4     statehood.  He believed and fought for it to the point of making ultimate

 5     personal sacrifices.  He carried the body of his own brother 17 miles

 6     over the mountains from Kosovo into Albania when he'd been shot by the

 7     Serbian forces.  His family have made huge sacrifices for Kosovar

 8     statehood, and it's in recognition of that statehood that when called

 9     upon to answer to charges before a serious international tribunal, he

10     immediately resigned, called for calm on the streets of Kosovo, completed

11     his parliamentary obligations for the morning and flew to The Hague.  Not

12     surprisingly he gained credit for that.  He was released on provisional

13     release and continued in full conformity with the requirements of the

14     Trial Chamber to exercise only political activity in private.

15             Now, I say that because his commitment and the respect that he's

16     shown to this Tribunal deserve reciprocation.  We're in a situation now

17     where a real shoddy re-trial is being mounted and we would ask

18     Your Honours to approach it with the robustness that it deserves.

19     Mr. Haradinaj's respect stands in the starkest possible contrast to the

20     way in which the Prosecution has conducted itself.  Putting forward

21     witnesses like Witness X who haven't even shown this court the time of

22     day and have refused orders to testify or make themselves available for

23     cross-examination because they want to hide behind their lies.  Despite

24     the fact that they've made very serious allegations against an honourable

25     political leader.

Page 317

 1             Your Honours, we respectfully submit - and I don't want to cause

 2     the need to go back into open session - but we respectfully submit that

 3     there are two witnesses in relation to these proceedings without whom we

 4     would not be here at all.  No doubt faced with the background of the

 5     previous Trial Chamber's frustration at the endless continuing

 6     prevarication, Your Honours will do what the Appeals Chamber directed

 7     should be done and give those witnesses a fair opportunity to testify.

 8             But to depart from legal language for a moment, enough is enough.

 9     The credibility of this Tribunal depends on a robust trial here.  These

10     two witnesses should not be permitted to wag the dog, so to speak, and to

11     hold up these proceedings indefinitely to keep Mr. Haradinaj further in

12     custody.  Bring them on we say.

13             Those are our submissions.

14             JUDGE MOLOTO:  Thank you, Mr. Emmerson.  We note the time.  I

15     guess this is an appropriate time and a convenient time to break up for

16     today.  The matter stands adjourned until tomorrow afternoon, 2.15, same

17     courtroom.  Court adjourned.

18                           --- Whereupon the hearing adjourned at 7.00 p.m.,

19                           to be reconvened on Friday, the 19th day of

20                           August, 2011, at 2.15 p.m.