Tribunal Criminal Tribunal for the Former Yugoslavia

Page 2855

 1                           Tuesday, 26 June 2012

 2                           [Defence Closing Statement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.00 a.m.

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

 7     courtroom.  Will you please call the case, Mr. Registrar.

 8             THE REGISTRAR:  Good morning, Your Honours.  This is case number

 9     IT-04-84bis-T, the Prosecutor versus Ramush Haradinaj, Idriz Balaj, and

10     Lahi Brahimaj.

11             JUDGE MOLOTO:  Thank you so much.  Could we have appearances for

12     the day, please, starting with the Prosecution.

13             MR. ROGERS:  Yes, good morning, Your Honours.  Paul Rogers for

14     the Prosecution, together with Mr. Aditya Menon, Ms. Daniela Kravetz and

15     our Case Manager today, Ms. Line Pedersen.

16             JUDGE MOLOTO:  Thank you so much.

17             Could we have for Mr. Haradinaj, please.

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

19     Ramush Haradinaj, together with Rod Dixon, Andrew Strong, Annie O'Reilly

20     and Kerrie Rowan.

21             JUDGE MOLOTO:  Thank you so much.

22             And for Mr. Balaj.

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

24     together with Colleen Rohan, Holly Buchanan, Gentian Zyberi, and

25     Ramon Barquero.

Page 2856

 1             JUDGE MOLOTO:  Thank you very much.

 2             And for Mr. Brahimaj.

 3             MR. HARVEY:  Good morning, Your Honours.  Richard Harvey,

 4     together with Paul Troop, Luke Boenisch, and Sylvie Kinabo.

 5             Your Honours, may I just raise one issue before we start and I

 6     think you may have been informed.  I had grown a little concerned

 7     yesterday.  The Trial Chamber has said that it wishes -- it does not wish

 8     to impose time limits on any of the counsel in their submissions, which

 9     is very kind, but the Trial Chamber also wishes to conclude today, which

10     we fully understand.

11             As the last counsel to be in a position to present a submission

12     to Your Honours, I don't have a guarantee from anybody, nor would I

13     expect one, of exactly how long they plan to be, nor do I offer one

14     myself.  But there is the potential that we might need, if Your Honours

15     are minded to consider this, to sit a little longer than the hours that

16     we would normally sit today and go into what is known as an extended

17     sitting in order to make sure that on behalf of Mr. Brahimaj I am not

18     foreclosed from making the submissions that I think it appropriate to

19     make on his behalf.  I will not be protracted.  I will try to be concise,

20     but I do want to be thorough.

21             JUDGE MOLOTO:  We hear you, sir.  As you do understand that this

22     impacts not just you and the Court, the Chamber, but also our

23     interpreters and other members of staff.  If they are prepared to

24     accommodate we will do so, otherwise you might have to go into tomorrow.

25             MR. HARVEY:  Thank you very much, Your Honour.

Page 2857

 1             JUDGE MOLOTO:  Thank you.

 2             Mr. Emmerson.

 3             MR. EMMERSON:  Your Honours, when we broke yesterday afternoon, I

 4     had been making some submissions to you by reference to the testimony of

 5     Rrustem Tetaj from the last trial concerning and a protected witness from

 6     this trial concerning Skender Kuqi and Mr. Haradinaj's intervention when

 7     the detention of Skender Kuqi was brought to his attention as the

 8     evidence establishes by Rrustem Tetaj himself.  The first thing that he

 9     did was to make that difficult journey over to Jabllanice and then get

10     there and remonstrate when he arrived with Nazmi Brahimaj over the

11     treatment of Mr. Kuqi and order his immediate release, and Your Honours

12     may remember the words from the protected witness that:  This type of

13     thing damages our cause.  And Your Honours may think that this is a

14     telling detail because of course, as I said to Your Honours yesterday,

15     Mr. Haradinaj was commander of those who chose to follow him, and his

16     popularity and the support that he and, indeed, the cause that he

17     represented enjoyed within the community depended upon his reputation,

18     and, to that extent, it may well be thought that the ill-treatment of

19     those who have been detained, allegations of torture and the like of

20     people in custody would have precisely the opposite effect, that which

21     Mr. Haradinaj was so painstakingly seeking to build, namely a consensus

22     among the community to take part in a volunteer force.  So that was the

23     first time he appears actively on the evidence in this case.  There are

24     two others.

25             The second is in connection with Witness 3.  Witness 3

Page 2858

 1     Your Honours will recall was one of those who he said escaped from

 2     Jabllanice on the 17th, 18th July, and he testified in some considerable

 3     detail about being redetained, including, in the end, by Lahi Brahimaj

 4     and locked into the boot of a car and eventually delivered by

 5     Mr. Brahimaj to Glodjan where he was initially badly treated by a

 6     particular soldier there, and then two young boys who he believes to be

 7     the brothers, or one of them to be the brother of Mr. Haradinaj, entered

 8     the room, caused the ill-treatment to cease immediately and began

 9     altogether to treat him in a different manner.

10             At that point, a man he believed to be Ramush Haradinaj, the

11     commander of Glodjan certainly entered the room where he had been, and he

12     told Your Honours that he was questioned by Mr. Haradinaj as to how he

13     came to be there.  He was then given -- offered food, given cigarettes,

14     offered a bed for the night voluntarily, in other words, he was told he

15     could stay the night if he wished to do so, but that he should sleep away

16     from the window because there was a risk that otherwise he must be hit by

17     a Serbian shell or sniper.  In other words, as soon as Mr. Haradinaj

18     arrived on the scene, he told, you his treatment was entirely

19     appropriate, his presence was voluntary and he was given support.  And

20     I'm going to read a short passage of his testimony.  He's asked this:

21             "Q.  So was it obvious to you as well that he, that is

22     Mr. Haradinaj, didn't know who'd brought you there or what it was you

23     were accused of?"

24             This is transcript 1678, line 11 onwards.

25             "A.  I believe he was not aware, because it was a matter of time.

Page 2859

 1     When Mr. Lahi Brahimaj took me from the shop, there was no time to

 2     discuss with other people.  I'm not sure, but I believe that he, that is

 3     Mr. Haradinaj, was not aware.

 4             "Q. And did you tell him that you were accused by Mr. Brahimaj of

 5     some form of treason?  Did you tell the man you believed to be

 6     Mr. Haradinaj that that is what the accusation was or what did you say?

 7             "A.  He asked me my name, where I was from, Who brought you here,

 8     and for what.  I told him my name, surname, the name of my village.  He

 9     asked, Why are you here?  And I answered that there was a question of an

10     automatic rifle.  I was accused."

11             Pausing there, Your Honours will recall that there was an

12     allegation that Witness 3 of stolen a rifle that ought to have been

13     surrendered to the KLA.  The answer continues:

14             "... he asked me whether I knew someone where I could sleep in

15     Glodjan, and I said I didn't.

16             "Q.  Pause there because we'll come to the issue of where you

17     were going to sleep in a moment or two.  You've just told us that he

18     asked you your name and where you were from and who brought you there and

19     for what, and you say you told him your name, your surname, the name of

20     your village, and he asked, Why are you here?  And I answered there was a

21     question of an automatic rifle.  Now, pausing there, did you tell him

22     that you had been brought there by Lahi Brahimaj?

23             "A.  Yes.

24             "Q.  How did he respond when you told him that?

25             "A.  He made this noise, shh," and it's recorded on the

Page 2860

 1     transcript as "shh," "It seemed incomprehensible to him, I think.

 2             "Q.  What was the noise?  Can you describe it for the record?"

 3             And then Your Honour Judge Moloto intervenes to say it's

 4     described on the record as "shh," and the witness says like this and then

 5     it's recorded p-w-o-w, "pwow."

 6             "... he was, I think," says the witness "angry, angry why these

 7     things happened, why these bad things happened."

 8             "Q.  Angry towards whom do you think?

 9             "A.  Of course that Lahi had taken me there."

10             So, again, that witness in the evidence that he gave most

11     certainly does not support the suggestion that any ill-treatment of him

12     was pursuant to a joint criminal enterprise.  Just as in the case of

13     Skender Kuqi when ill-treatment was brought to Mr. Haradinaj's attention,

14     the response was to remonstrate to criticise, to say this should never

15     happen again, nothing of the kind should ever happen again because it is

16     damaging our cause.  So, too, when Witness 3 informs Mr. Haradinaj that

17     he has been ill-treated, detained by Lahi Brahimaj in the way described,

18     the reaction is that Mr. Haradinaj was angry why these bad things

19     happened, angry towards Mr. Brahimaj.

20             So that doesn't, in our submission, support a joint criminal

21     enterprise.  Indeed, it proves that no such joint criminal enterprise was

22     in existence.  This is not, I reiterate, a command responsibility case,

23     but even if it were in the circumstances as they existed on the ground,

24     it wouldn't begin, in our submission, to come close to the threshold

25     necessary.  But this is a joint criminal enterprise case, and what you

Page 2861

 1     have in each instance where there is an intervention by Mr. Haradinaj is

 2     an expression by those who saw it of what was clearly an attitude of

 3     opposition to the ill-treatment of individuals who had been detained at

 4     Jabllanice.

 5             Can we just move on to look at a short passage of video from

 6     Witness 3 where he deals with how he reacted to the treatment afforded to

 7     him by Mr. Haradinaj now.

 8                           [Video-clip played]

 9             "Q. ... based on the evidence that you've already given, I'm just

10     going to put some short propositions to you and invite you to agree with

11     them, without necessarily a lengthy elaboration.

12             "First of all, you understood that you were being given a bed for

13     the night where you could --"

14             MR. EMMERSON: [Microphone not activated] Sorry, we have

15     technical --

16             THE INTERPRETER:  Could we have the tab number, please.

17             MR. EMMERSON:  Nothing -- nothing showing on my screen.

18             Do Your Honours have the video showing?

19             JUDGE MOLOTO:  Just -- we're on our way now.

20             MR. EMMERSON:  Could somebody please sort it out.

21             THE INTERPRETER:  The interpreters would like to get the tab

22     number of this transcript.

23             JUDGE MOLOTO:  Mr. Emmerson, the interpreters would like to get

24     the tab number of this transcript.  Yes, put on your earphones.  The

25     interpreters would like to get the tab number of this transcript.

Page 2862

 1             MR. EMMERSON:  It's tab 8, Your Honours.

 2             JUDGE MOLOTO:  It's tab 8, interpreters.

 3                           [Video-clip played]

 4             "Q.  ... stay voluntarily if you chose to do so; correct?

 5             "A.  Correct.  That's true.

 6             "Q.  You'd been reassured that you would be kept safe and taken

 7     home in the morning to your relatives; correct?

 8             "A.  According to those two young men who prevented the blonde

 9     guy from beating me, I started to feel a little bit reassured.

10             "Q.  And you'd been given food and cigarettes and a relatively

11     safe place to sleep the night.

12             "A.  Yes, that's right.

13             "Q.  Now, there came a point later in the evening when you were

14     called to go downstairs to see the commander; is that right?

15             "A.  Yes, that's right.

16             "Q.  So having expected that you would be sleeping the whole

17     night there, I think you said before it's sometime around 11.00 you got a

18     call to come downstairs; is that right?

19             "A.  Yes, that's correct.

20             "Q.  You told Mr. Rogers yesterday, perhaps understandably in the

21     context of the testimony you've given, that you were scared when you were

22     called downstairs, but when you got there, the man that you believed to

23     be Mr. Haradinaj said to you, Forget about what has happened.  Go home to

24     your family and forget about everything.  You are free.

25             "Is that right?

Page 2863

 1             "A.  That's right.  This is what he told me.  I -- of course, had

 2     I known before why he had called me downstairs, I wouldn't be afraid.

 3     But before going there, I was afraid.  But when I went downstairs, he

 4     told me, You can go to your family.  Don't have anything to do with this.

 5     You are free.

 6             "Q.  And I think he advised you to stay away from the KLA

 7     generally; is that right?

 8             "A.  He said, Stay away.  Stay away from what happened.  Return

 9     to your family.

10             "Q.  Can I ask you this, witness.  Did you understand what was

11     being said to you to mean this:  That you would be safely now returned to

12     your family and that nothing bad would happen to you again?

13             "Is that what you understood this man you thought Mr. Haradinaj

14     to be saying to you?

15             "A.  Yes.  When he said these words and when I saw the people who

16     had come to fetch me, I knew that no harm would ever come to me from this

17     person.  And, in fact, I've never been afraid of Mr. Haradinaj.  I didn't

18     know him.  He didn't know me, and I am not afraid even now.

19             "Q.  But if that was what he was promising you, that no harm

20     would come to you again, that is exactly with a happened, isn't it,

21     Witness 3?  No harm did come to you again after that.

22             "A. That's correct.  No harm came to me.  No threats.  I didn't

23     have any contacts with them.

24             "Q.  And would it be fair to say that once you had come to the

25     attention of Mr. Haradinaj, from that point onwards you were safe?

Page 2864

 1             "A.  Yes.  Yes, this is what had happened, in fact.  I never had

 2     any problems."

 3             MR. EMMERSON:  I want, if I may, to put on -- thank you.  Now,

 4     just pausing there, I don't propose to say much by way of comment other

 5     than this:  That it is perfectly clear from the testimony of Witness 3

 6     that Mr. Haradinaj's intervention in his case was not only inconsistent

 7     with the existence or, rather, with the involvement of Mr. Haradinaj in a

 8     joint criminal enterprise to ill-treat Witness 3, but was proof positive

 9     of quite the reverse.

10             Can I turn now to the third, and, in our submission, the last

11     relevant evidence of an involvement of Mr. Haradinaj in this case, and

12     that is the incident concerning the ECMM monitors that Mr. Rogers thought

13     it right to place such reliance upon.  Now I summarised to Your Honours

14     yesterday what had happened in relation to that and when it had happened

15     and pointed out that for the Prosecution to seek to rely on that

16     interchange as evidence of Mr. Haradinaj's propensity for violence

17     against those who were detained was, in the circumstances, preposterous.

18     Mr. Pappas together with his interpreter, Kastriot, and two other ECMM

19     monitors, one called Wolfgang Kaufmann and another individual present

20     with him, had driven in a white Land Rover directly towards the

21     confrontation that Your Honours saw yesterday depicted in the BBC news

22     footage of the Serbian forces overrunning Glodjan and Irzniq causing

23     wide scale destruction and the mass displacement of the civilian

24     population.  And there was initially a situation where they were stopped

25     by armed men as they approached Irzniq, taken to a KLA headquarters.

Page 2865

 1     There was a confrontation in which the interpreter initial was struck and

 2     the interpreter then told Mr. Pappas that these armed man who are

 3     unidentified suspected that they were spies for the Serbs.  They had, as

 4     the evidence disclosed, satellite telephones and maps with them.

 5             After about 25 minutes, he said, Mr. Haradinaj arrived.  He asked

 6     them some questions, but as Mr. Pappas told the last Trial Chamber, it

 7     was totally different the way he was behaving, the way he was asking

 8     information.  Once Mr. Haradinaj arrived, everything was quite civilised.

 9     Yet again, once Mr. Haradinaj arrived, everything was quite civilised.

10     That's P318, transcript T4132.

11             Once Mr. Pappas, explained that this was an ECMM group,

12     Mr. Haradinaj was quite open and understood their mission.  Not only

13     that, but having been called away from the front line to deal with this

14     somewhat reckless escapade by the ECMM group, Mr. Haradinaj took them

15     back to their car, checked that it wasn't concealing weapons, told them

16     that they were free to leave and arranged for them to be escorted safely

17     out of the area.  And Mr. Pappas, when asked, said that throughout this

18     encounter Mr. Haradinaj was "absolutely calm and controlled" and that his

19     manner was "gentle and polite."

20             Now, just pause for a moment on this, if I may, because what

21     Your Honours have in the evidence is a 92 ter witness statement of

22     Mr. Pappas, but in the original trial he had signed, first of all, a much

23     more detailed consolidated witness statement which contained the passage

24     explaining just how appropriately Mr. Haradinaj had behaved during his

25     intervention.  That passage did not, however, find its way into the

Page 2866

 1     92 ter statement.  And, accordingly, he was cross-examined on the passage

 2     that had not found its way into the 92 ter statement that Your Honours

 3     have.  And it may be, I don't know, that in proposing that this was

 4     relevant evidence in this case of Mr. Haradinaj's propensity for violence

 5     that the Prosecution overlooked this.  Certainly had they focused on it,

 6     it would have been very difficult for them to make the submission that

 7     they made.

 8             Can we look, please, now at a short passage of video in which he

 9     was cross-examined, Mr. Pappas, about that section and what he had to say

10     about it.  This is P397.

11                           [Video-clip played]

12             "Q.  ... the contents of your consolidated witness statement

13     where you deal with this matter.  So I'm just going to read the

14     passages --"

15             JUDGE MOLOTO:  What's your tab number?  What's your tab number?

16     I'm sure the interpreters would want that.

17             MR. EMMERSON:  This is tab 9.

18             JUDGE MOLOTO:  Thank you.

19                           [Video-clip played]

20             "Q.  ... to you and ask you, please, to confirm that these are an

21     accurate reflection of your evidence because they don't find their way

22     into the written statement that has been admitted in evidence in this

23     case.  Quotation - and I'm reading from the second half of paragraph 24

24     of the consolidated witness statement and then on:

25             "'He was absolutely calm and controlled, and in a gentle way he

Page 2867

 1     started interrogating us one by one.  He was polite.  He started with

 2     Penti, who was obviously shocked, frightened from the development of

 3     things, Penti' and this is in brackets, '(Penti had been visiting our

 4     team for just that day and this had happened to him)' closed brackets,

 5     full stop.  'He checked his papers and only had a short discussion with

 6     him.  I recall that he asked Penti a question about a lake if Finland

 7     that was the subject of some dispute with the Russians and Penti answered

 8     him.  After Penti, he asked the interpreter in Albanian a few things;

 9     however, I'm not aware about the content of their conversation.  After

10     Kastriot, he turned to me and asked me about my whereabouts and

11     occupation back home.  He told me that he has no problem with Greeks,

12     although the politics of my country build up hostile feelings in a lot of

13     his comrades.  He told me that he had visited Greece several times and

14     that he has a lot of Albanian friends living there and some of them came

15     to Kosovo to fight with him.  I explained to him the circumstances in

16     which we had ended up there, meaning our presence in Rznic.  I explained

17     to him our mandate and the purpose of our presence in Kosovo.  It seemed

18     to me that he understood and was satisfied with my explanations.

19     Afterwards, he spoke in French and English with Kaufmann.'

20             "And then a little further on at paragraph 26, I want to put the

21     following passage on the record:

22             "'Afterwards, the commander came with us to our car and he

23     started to search it thoroughly inside and outside.  He asked us if we

24     had guns and we said no.  After this, he told us that we are free to go.

25     He offered us an escort out of the area which we agreed to.  He then

Page 2868

 1     ordered the three men in the black uniform, including Idriz Balaj, who

 2     had stopped us before, to escort us out of Glodjan.'

 3             "And then, finally, two lines at the bottom of paragraph 26:

 4             "'The whole incident lasted for about one and a half hours under

 5     continuous shelling of Serbian artillery.'

 6             "So, first of all, can I ask you, please, to confirm that that is

 7     an accurate reflection of your evidence?

 8             "A.  Yes, it is.

 9             "Q.  And secondly, just one or two supplementary questions.  It

10     follows from that description that your impression of Mr. Haradinaj was

11     that he remained calm throughout this interchange and behaved reasonably

12     to you.  Is that right?

13             "A.  That's right.

14             "Q. And this was despite the fact that the village of Glodjan and

15     the village of Rznic were under heavy fire and the Serbs were closing in?

16             "A.  They were under shelling, yes.  I don't know, it's out

17     estimation that the Serbs were very close, yes.

18             "Q.  And you know from the video you saw yesterday that by the

19     following day they'd overrun Glodjan?

20             "A. Yeah.

21             "Q.  Now, for a commander to come away from the front line, to

22     divert himself and others from combat to deal with a group of monitors

23     who had decided to drive straight into the heart of a front line zone,

24     would you accept it's obviously a rather unwelcome distraction from the

25     job of defending people's lives in the course of the conflict?

Page 2869

 1             "A.  In the way that you put it, yes.

 2             "Q.  But nonetheless, once he had established your good faith, he

 3     not only returned your documents and ensured that you could leave but

 4     gave you safe passage out of the area, diverting soldiers again --

 5              "JUDGE ORIE:  Mr. Emmerson, I have to ask you to slow down for

 6     the interpreters.

 7              "MR. EMMERSON:  Sorry.

 8              "JUDGE ORIE:  Could you perhaps please repeat your last

 9     question.

10              "MR. EMMERSON:

11              "Q.  I said:  Nonetheless, once he established your good faith,

12     he not only returned your documents and ensured that you could leave but

13     gave you safe passage out of the area, again diverting soldiers from the

14     front line to meet the needs of providing you with protection.

15             "A.  Exactly."

16             MR. EMMERSON:  Now, how can it be that a responsible Prosecutor

17     would put that incident forward as evidence of Mr. Haradinaj's supposed

18     involvement in a joint criminal enterprise to ill-treatment prisoners in

19     Jabllanice?

20             Those three incidents, Mr. Haradinaj's intervention in

21     Skender Kuqi's case, his intervention in the case of Witness 3, and his

22     intervention in the case of the ECMM monitors are the only evidence in

23     this trial of his active involvement in anything apart from the

24     confrontation with FARK soldiers which I'm going to come back to towards

25     the end of my submissions, but leaving the FARK distraction to one side

Page 2870

 1     where it belongs, those three incidents are the only evidence of

 2     Mr. Haradinaj doing anything relevant in this case and what do they tell

 3     us?  A joint criminal enterprise?  I don't think so.

 4             What then of the sloppy allegation that simply because he was a

 5     popular KLA commander he must be guilty?  That's really what it comes to.

 6     It's necessary to put that in its proper context.

 7             Mr. Rogers tried to dismiss the consistent evidence that was

 8     before this Trial Chamber and the last that there was no vertical command

 9     structure even after the 23rd of June.  Mr. Emmerson might call it

10     horizontal, but in the end he was an influential commander.

11             Well, we're to the dealing with abstractions and generalities of

12     that nature in a criminal trial.  We deal in specifics.  And there are no

13     specifics upon which Mr. Rogers is in a position to rely, but let's just

14     look at what the evidence was.  Can I just show Your Honours, first of

15     all, the evidence of Skender Rexhametaj, who Mr. Rogers relies upon and

16     sought to put before you to suggest that this relationship was such that

17     Mr. Haradinaj can somehow be held responsible for what happened in

18     Jabllanice.  This is -- this is tab 10 in the bundle.

19                           [Video-clip played]

20             "Q.  ... yesterday that until the 23rd of June meeting you

21     personally of never received an order from Ramush Haradinaj.  You were

22     subzone commanders of equal rank even though he was your co-ordinator,

23     you told us yesterday, and you never received an order from him before

24     the 23rd of June.  Do you remember telling us that yesterday?

25             "A.  Yes.  I remember that, and that stands.  I told you that

Page 2871

 1     everything that was done was done on the basis of --

 2             "Q.  Just focusing on the question as narrowly as you can for a

 3     moment.  I'm going to suggest to you that that remained the position

 4     after the 23rd of June, that you never received an order from

 5     Ramush Haradinaj to do or not to do anything militarily within your

 6     subzone after the 23rd of June.

 7             "A.  Yes.  The subzones and the responsibilities of the subzone

 8     commanders continued.  We continued to work on functionalising the

 9     positions and the responsibilities even after the 23rd of June.

10             "Q.  And in practical terms, after the 23rd of June the

11     relationship between the subzone commanders, in practical terms, remained

12     horizontal?

13             "A.  Yes, it remained horizontal in reality, which means that no

14     one could give orders to the other.  Everything was done by consensus.

15     It remained the same."

16             MR. EMMERSON:  So prior to the 23rd of June it is common ground

17     and unequivocally established that Jabllanice existed wholly outside the

18     four subzones that had been established on the 26th of May and after the

19     23rd of June the relationship between the commanders, both within and

20     outside that subzone, that's to say those that formed the Dukagini Plain

21     Operational Zone remained horizontal in reality "which means that no one

22     could give orders to the other."  You see when, Mr. Rogers makes the

23     concession, as he does, that this was a force with no conventional

24     command structure, he fails to take that through to its logical

25     conclusion.  The logical conclusion is that this was not an army with a

Page 2872

 1     vertical hierarchy at all precisely because it depended on the consensus

 2     of volunteers, people who were culturally, you've heard, centred around

 3     loyalty to their own villages and their elected village heads.  It was

 4     necessary for everything to be debated by consensus, typically in the oda

 5     where men would gather and debate what should be done.  There was no

 6     suggestion that there was any debate at any stage which resulted in a

 7     decision to detain, beat, or kill people in Jabllanice or indeed to

 8     establish a detention facility there.

 9             So Mr. Rogers says, Well, we've got a witness from the first

10     trial called Zymer Hasanaj who says that Ramush Haradinaj appointed a

11     commander in Vranoc.  Remember I showed Your Honours Vranoq.  It was near

12     Baran and one of the villages attacked in the May offensive.  I said you

13     may want to note Vranoq.  So Mr. Rogers says there's a witness, he

14     mentioned it in their closing brief, Zymer Hasanaj who says that it was

15     Mr. Haradinaj who appointed the commander of Vranoq, a man called

16     Din Krasniqi, which of course would be inconsistent with the proposition

17     that the villages elected their own commander.

18             MR. ROGERS:  Could Mr. Emmerson give us the paragraph reference,

19     so we can just check --

20             MR. EMMERSON:  From your own brief?

21             MR. ROGERS:  Yes, please [overlapping speakers] referring to.

22             MR. EMMERSON:  I certainly will do.  Just give me a moment to dig

23     it out.

24             MR. ROGERS:  Thank you.

25             MR. EMMERSON:  Can we just see what Mr. Hasanaj actually said

Page 2873

 1     because I think, again, I think we're looking at a situation where this

 2     Prosecution case has been drafted by looking at 92 ter witness statements

 3     not at reading transcripts of statements.

 4                           [Video-clip played]

 5             "Q.  Was there a commander of the people who considered

 6     themselves to be KLA in April 1998 in your village?

 7             "A.  We didn't have any commander at that time, but as a person

 8     who was in a position to contact people, to be kind of representative, I

 9     would say.  This is how it was.

10             "Q.  In paragraph 4, you refer to Ramush Haradinaj coming to

11     Vranoc on many occasions, including to announce the appointment of

12     Din Krasniqi as the commander of the Lugui Baran region.  Did you know

13     Ramush Haradinaj personally?

14             "A.  I do know Ramush Haradinaj personally.  After the offensive

15     against Vranoc, Ramush Haradinaj didn't appoint Din Krasniqi.  It was the

16     people who elected him."

17             MR. EMMERSON:  So in answer to Mr. Rogers's question, at

18     paragraph 30 of his brief, the very passage that Mr. Re in that excerpt

19     was putting to the witness was -- is cited for -- as authority for the

20     proposition that the witness went on to contradict.

21             Can I move on now to look at the way that the structures -- these

22     independent power bases linked together, and, in particular, can I just

23     call up -- I'm sorry, is it P78, which is, just to he remind

24     Your Honours, the map --

25             JUDGE MOLOTO:  Just a second.  Did you say paragraph 30 of the

Page 2874

 1     brief?

 2             MR. EMMERSON:  [Microphone not activated] yes.

 3             JUDGE MOLOTO:  3-0.

 4             MR. EMMERSON:  [Microphone not activated] 3-0, yes, and

 5     Your Honour will see footnote 102.  Hasanaj.

 6             THE INTERPRETER:  Microphone for Mr. Emmerson, please.

 7             MR. EMMERSON:  I'm sorry.  Footnote 102.

 8             JUDGE MOLOTO:  I see the footnote but the -- I'm not even sure

 9     how it relates to paragraph 30 [overlapping speakers] ...

10             MR. EMMERSON:  Well, the suggestion is that in the last words of

11     paragraph 30 that Mr. Haradinaj was influencing the selection of the

12     leaders and it's footnoted --

13             JUDGE MOLOTO:  Okay.

14             MR. EMMERSON:  -- to a statement of Mr. Hasanaj which said he

15     came to announce the appointment of Din Krasniqi as the commander.

16             JUDGE MOLOTO:  Thank you.

17             MR. EMMERSON:  Because, in fact, the evidence is the village, as

18     one has heard, consistently elected their --

19             JUDGE MOLOTO:  Thank you so much --

20             MR. EMMERSON:  -- own commander.

21             JUDGE MOLOTO:  -- I'm grateful for your explanation.

22             MR. EMMERSON:  Can we just call up P78 briefly, please.

23     Your Honours have it behind tab 12 as well.  Perhaps you don't have it

24     behind tab 12.  We do have it in mine.  No we do have it, in fact, in

25     black and white.  But it's helpful, I think -- can we call it up in

Page 2875

 1     colour?  Just to make the very obvious points.  So these are the four

 2     subzones.  The subzone around Glodjan commanded by Mr. Haradinaj,

 3     subzone --

 4             JUDGE MOLOTO:  What is its number again?

 5             MR. EMMERSON:  One.

 6             JUDGE MOLOTO:  One.

 7             MR. EMMERSON:  Your Honours can see the large area.

 8             JUDGE MOLOTO:  [Microphone not activated]

 9             MR. EMMERSON:  I beg your pardon?

10             JUDGE MOLOTO:  It's very faint to read so that's why I'm asking,

11     yes.

12             MR. EMMERSON:  On the screen, it's faint, is it?  Because it's

13     quite clear on mine.  Sorry?  Your Honours, I'm told that if you switch

14     over to the live feed it will come up more clearly.

15             JUDGE MOLOTO:  The life feed.

16             MR. EMMERSON:  Very well.

17             JUDGE MOLOTO:  That's better.  E-court.  Thank you.

18             MR. EMMERSON:  So subzone 1, this is the 26th of May meeting.

19     Subzone 1 around Glodjan, this is Rrustem Tetaj's map; subzone 2, Irzniq

20     under the command of Rrustem Tetaj; subzone 3, the area around Pozar and

21     Dasinovac under the command of Skender Rexhahmetaj, who you've just seen

22     testifying about horizontal structures throughout; and subzone 4 under

23     the command of Shemsedin Cekaj, who also gave evidence in trial one about

24     the horizontal relationships that existed.  And it -- it doesn't take me

25     to make the point that Jabllanice falls well outside of that subzone

Page 2876

 1     structure.  So we know that from the beginning of the indictment period

 2     right up to the 23rd of June, Jabllanice was even formally entirely

 3     outside any attempts at co-ordination of these zones along the front

 4     line.  What we also know from the evidence you've just heard is even

 5     after the 23rd of June there was no command relationship of the short

 6     that Mr. Rogers has tried to conjure up.  So what did the witnesses say

 7     about this?  First of all, Mr. Tetaj himself explaining his map -- can we

 8     please -- this is tab 13, just call up a short passage of Mr. Tetaj's

 9     evidence.  P521.

10                           [Video-clip played]

11             "Q.  ... more detail at the minutes of the meeting that took

12     place in Jabllanice on the 23rd of June; but, first of all, we can see

13     from the zones that you've marked on this map that as at the end of May,

14     they did not include any area to the west of the main road.  Is that

15     correct?"

16             MR. EMMERSON:  Stop there.

17                           [Trial Chamber confers]

18             MR. EMMERSON:  Oh, I'm sorry.

19                           [Trial Chamber confers]

20             JUDGE MOLOTO:  Mr. Emmerson, you may wonder why we're -- what I

21     hear from the video here is not what I see on the transcript at tab 13.

22     So ...

23             MR. EMMERSON:  Can we just -- can we just try again because I

24     think it may be that it cut in at the wrong moment because it certainly

25     seems to be what I put on my transcript.  Is Your Honour's transcript --

Page 2877

 1     is it headed 3720, beginning, "I'm going to ..."?

 2             JUDGE MOLOTO:  That's correct, "I'm going to ...," yes.

 3             MR. EMMERSON:  I think that -- I think that unless I'm mistaken,

 4     I think that is the passage.

 5             JUDGE MOLOTO:  That's not what I hear from the video.  Okay,

 6     let's play the video again.

 7                           [Video-clip played]

 8             "Q.  I'm going to come back in a little while and look in more

 9     detail at the minutes of the meeting that took place in Jabllanice on the

10     23rd of June, but, first of all, we can see from the zones that you've

11     marked on this map that as at the end of May, they did not include any

12     area to the west of the main road.  Is that correct?

13             "A.  Yes.

14             "Q.  And they obviously did not include Jabllanice either?

15             "A.  Until the moment when the original staff of Dukagjin was set

16     up, Jabllanice was a separate zone so it was not included in these four

17     subzones.  It was not included in them.

18             "Q.  Well, that was what I wanted to ask you.  You say until

19     the -- the translation which 'the original staff of Dukagjin was set up.'

20     Can I just be clear.  Are you saying until the meeting on the 23rd of

21     June when the staff of the Dukagjini Plain was established, until then,

22     Jabllanice was not part of this co-ordinated grouping?  Is that right?

23             "A.  That's correct.  That's correct."

24             MR. EMMERSON:  And can we just run now through a series of

25     testimonies back to back, and I'll explain what they are with even of

Page 2878

 1     them just before they start.  So the next tab 13 -- I'm sorry 14.

 2             JUDGE DELVOIE:  Mr. Emmerson, can I have -- can I ask a little

 3     question.  The area Hasanaj in tab 11 he's talking about, could you

 4     remind me of which subzone that is in?

 5             MR. EMMERSON:  Yes.  Vranoq, if Your Honour sees Baran,

 6     outside -- it's on in amongst the subzones, it's outside as well.  If you

 7     look at Baran, which is just to the upper right-hand corner of subzone

 8     4 -- yes, I'm sorry.  Baran outside, but Vranoq, if you look beneath

 9     immediately south of Vranoq it's just in the edge of the subzone 3 under

10     the command of Shemsedin Cekaj.

11             JUDGE DELVOIE:  Thank you.

12             MR. EMMERSON:  So, as I say, I'm just going to run through these

13     passages and just introduce them as we go.  So tab 14 is the evidence of

14     Skender Rexhametaj on the way in which relationships operated between

15     these different villages.  Can we just look at that briefly.

16                           [Video-clip played]

17             "Q.  And so -- and so would you agree with me that one of the

18     reasons why a commander from subzone -- from a particular subzone could

19     not impose his will on another subzone was because everybody was

20     volunteering and everything had to be agreed by consent?

21             "A.  Yes, correct.

22             "Q.  But there was also another reason which you told us about

23     right at the beginning of your testimony yesterday in some detail, which

24     is that these areas, these -- these -- these concentrations, these towns

25     and villages where commanders had been appointed, were fiercely,

Page 2879

 1     culturally jealous of their independence from one another.  Would you

 2     agree with that?

 3             "A.  I would kindly ask you to repeat the question.

 4             "Q.  Another reason why everything had to be done by consensus

 5     was because culturally in Western Kosovo - as you told us yesterday -

 6     these towns, which were concentrations of KLA activity were fiercely

 7     jealous of their independence.  They protected their independence from

 8     one another.  They wouldn't want another leader from another town telling

 9     them what to do because that would break the consensus, wouldn't it?

10             "A.  It's correct, because these people who were appointed -- who

11     were appointed through the will of the local people going through the

12     rounds I mentioned.  So the arrival of everyone else to command, to take

13     over the command, was -- didn't make sense to them.  So I think they

14     wouldn't agree.  I believe they wouldn't have liked that, because they

15     trusted us and I believe that we did a good job, given that the objective

16     circumstances.

17             "Q.  Now, just to conclude, in your evidence as a whole, we've

18     really talked about six subzones, the four that were marked on the map I

19     showed you by Rrustem Tetaj, the one that you've told us about that's on

20     the western side of the road around Voksh, subzone 5, and the zone

21     surrounding Jabllanice, which I think is sometimes referred to as

22     Dushaka -- is that correct?  Dushkaja.  I'm sorry.

23             "A.  Yes, yes.  That's right.

24             "Q.  And even after the 23rd of June, right up, let us say, until

25     the end of September, it was not possible, was it, for the commander of

Page 2880

 1     any one of those zones to march into another one and tell the people

 2     there what to do and what not to do as an order?

 3             "A.  Unless it was asked for, otherwise it was not possible.

 4             "Q.  And that remains the position despite this aspirational

 5     blueprint that we see on the screen in front of us, didn't it?

 6             "A.  Yes."

 7             MR. EMMERSON:  Your Honour, the aspiration blueprint were the

 8     minutes of the meeting on the 23rd of June on which Mr. Rogers relies.

 9     Next, please, Bizlim Zyrapi trying to explain to the Trial Chamber the

10     cultural issues underlying this independence.  This is tab 15 and there

11     are two short passages I want to play, please.  Tabs 15 and 16.

12                           [Video-clip played]

13             "Q.  I'm sorry for that diversion, Mr. Zyrapi, we were going

14     through the relationships between the military power bases that were

15     associated with the main families in Western Kosovo.  And you've told us

16     it would be absurd to suggest that either the Brahimajs or the Haradinajs

17     could tell the Jasharis what to do or what not to do inside their

18     compound and you've told us it would be absurd to suggest that the

19     Brahimajs could tell the Haradinajs what to do or what not to do inside

20     their compound.  And the last question which is the obvious concomitant

21     of the first three:  It would be absurd, would it not, to suggest that

22     the Haradinajs were in a position to tell the Brahimajs at that point in

23     time what to do and what not to do?

24              "MR. MENON:  Your Honour, it's the same problem.  There is no

25     basis for that question being put to this particular witness.  It's not

Page 2881

 1     clear to me how he can comment on that particular family tie that

 2     Mr. Emmerson is referring to, the Haradinaj-Brahimaj family tie.

 3              "JUDGE MOLOTO:  I'm sure the witness can tell us if he's not

 4     able to comment on that tie.  Overruled.

 5              "MR. EMMERSON:

 6             "Q.  It would be absurd, wouldn't it, Mr. Zyrapi, to suggest that

 7     in March 1998 the Haradinaj family could impose their will or discipline

 8     on what was or was not done by the Brahimajs inside Jabllanice?

 9             "A. [No interpretation]"

10             MR. EMMERSON:  Now, pausing there, that "jo," that "no" on the

11     transcript is capable of being ambiguous because of Mr. Menon's

12     interruption in the testimony.  The actual question was, It would be

13     absurd, wouldn't it, to suggest that Mr. Haradinaj could tell

14     Mr. Brahimaj what to do.  And the answer on the transcript actually says

15     "no" and the inference obviously was that what the witness meant to say

16     was, Yes, it would be absurd, no, he couldn't do it.  But we clarified

17     that immediately afterwards.

18                           [Video-clip played]

19             "Q.  Mr. Zyrapi, I want to suggest to you that in March 1998 none

20     of these three families had authority to impose their will on one

21     another.  That is correct, is it not?

22             "A.  I wasn't there at that period to be able to know, but

23     experience would show that, yes, that is correct.

24             "Q.  Thank you."

25             MR. EMMERSON:  Now, pausing there, we're going to move on now to

Page 2882

 1     a witness that Mr. Rogers cited to you yesterday in support of certain

 2     aspects of the evidence about command.  Cufe Krasniqi, who gave evidence

 3     in the first trial and there were two passage I want to -- I want to play

 4     Your Honours.  They're both very brief.  Essentially, his testimony was

 5     to the effect that these commands remained separate not solely after the

 6     23rd of June but right through to the end of July; in other words, to the

 7     time just before the August offensive.  Can we play, first of all, tab 17

 8     which is P514.

 9                                [Video-clip played]

10             "Q.  When you were answering questions about this relationship

11     between these different power centres in the period after the 11th of

12     July yesterday, you said they were not linked.  You said:  'In Glodjan

13     there was Ramush.  In Prapaqan it was Tahir.  Each operated

14     independently, which means that we did not have the means and the

15     possibilities to communicate with each other.'  Then you said:  'However,

16     if there was a problem or if we wanted to send some information, we send

17     a courier in order to ask for some help.'  And then you said this:  'When

18     I was in Baran, if I had some problems, then I send some soldier with a

19     vehicle in order to ask for some help.  I sent him to Ramush, to Lahi, or

20     to Tahir, the one which was closer.'

21             "And I wanted to understand that answer a little more.  Are you

22     telling the Trial Chamber that from where you were in Vranoq, any one of

23     those three commanders would be regarded from your point of view as

24     operating autonomously so that you could call them or contact them

25     directly?

Page 2883

 1             "A.  Yes.  That was not important at the time.  If a village came

 2     under attack, all the villages voluntarily offered to help.  So, for

 3     example, when the attack began on Jabllanice, I asked for assistance from

 4     other villages, because Ramush could not come from Glodjan to the place

 5     where I was.  So whichever village was able to send volunteers to help,

 6     they would do so.

 7             "Q.  And what you appear to be describing is a fairly horizontal,

 8     rather than vertical, command structure.  Would you accept that

 9     description?

10             "A.  Yes, that's true.  That's what happened.  It's something

11     that really happened.  Whichever villages were closer to where the attack

12     occurred, those villages went to assist."

13             MR. EMMERSON:  And now tab 18, please.

14                           [Video-clip played]

15             "Q.  And again so that we're clear, during this month of July,

16     there had been a major Serb offensive, a major battle at Loxha in the

17     first -- the end of the first week of July.  Is that correct?

18             "A.  Not in the last week of July, earlier.

19             "Q. [Previous translation continues]... that may have been a

20     translation issue.  The end of the first week of July was what I was

21     putting to you.

22             "A.  Yes, end of the first week.

23             "Q.  [Previous translation continues]...

24             "A.  I think you're right.  About the 5th or 6th.

25             "Q.  And there was another major Serb offensive through the area

Page 2884

 1     within a week or so of the swearing-in ceremony, wasn't there?

 2             "A.  Yes, there was.

 3             "Q.  ... just important to get our chronology clear.  Now,

 4     looking at this map you've told us it's depicting in a graphic way the

 5     locations after the 10th or 12th of July, and we can see that you've

 6     described Jabllanice as a staff HQ, and you described Glodjan as a staff

 7     HQ.  And I just wanted to understand from your perspective as an officer

 8     on the ground in Baran, is that how you saw them as being on an equal

 9     footing and independent of one another, those two staff HQs?

10             "A.  Yes.  At that moment, this was how it was.  They were

11     independent.  The same was true of us.  We had no means and each of us

12     operated independently."

13             MR. EMMERSON:  So that date's important because he's saying after

14     the battle ended on the 12th of July, they remained independent.  So

15     that's a full three weeks following the 23rd of June minutes, but it's a

16     position he's describing going forwards after the 12th of July.  Of

17     course, that was the very period where on the evidence Pal Krasniqi,

18     Skender Kuqi, Witness 3 and Witness 6 were detained at Jabllanice and a

19     few days before the escape attempt of which you have heard evidence.

20             And so we're left in this situation that in the absence of

21     anything specific to rely on, the Prosecution falls back on reputational

22     evidence, that slippery dangerous area of inference based on nothing but

23     tittle tattle.  And you get a curiosity here, because in Mr. Balaj's case

24     they rely on evidence suggesting - some of it from the Serbian

25     intelligence - that Mr. Balaj had a fearsomely bad reputation.  That

Page 2885

 1     alone.  So therefore he must be guilty.  Whereas in Mr. Haradinaj's case,

 2     quite the opposite thing is said.  He had an incredibly good reputation

 3     and was hugely popular and therefore he must be guilty.  That's the

 4     danger of this type of slippery unevidenced reasoning, but let's look at

 5     whether it's fair what Mr. Rogers put to you.  Let's look at whether --

 6     try to derive from the testimony of people in Western Kosovo who thought

 7     that Ramush Haradinaj was a war hero who protected them, a man who didn't

 8     engage in dirty abuse, an honourable fighter, how it is that the

 9     Prosecution seeks to turn that into evidence from which I invite you to

10     infer a joint criminal enterprise.

11             Can we start at tab 19.

12                           [Video-clip played]

13             "Q.  Did Ramush visit your brigade a couple of -- on a couple of

14     occasions there, accompanied by Sali Veseli and Idriz Balaj?

15             "A.  Ramush came but Balaj was not with him.  I did not see him.

16     He was not there.  Sali came on his own and Ramush came on his own.

17             "Q.  What was the purpose of the oath-taking ceremony in

18     July 1998?

19             "A.  The aim of the visit was because we had made a request to

20     him.  We had a great number of soldiers that wanted to join the KLA, and

21     we wanted them to pledge their allegiance and we wanted him to be present

22     in this ceremony so that he could see from close what these young men

23     were doing and how they were so eager to join the KLA.

24             "Q.  Who's the 'he'?  You're referring to Ramush Haradinaj there?

25             "A.  Yes, of course, Ramush.  We invited him and we wanted him to

Page 2886

 1     be part of that solemn ceremony, in the oath-taking ceremony of the new

 2     members of the brigade.

 3             "Q.  Why was it so important to you that Ramush participated in

 4     this?

 5             "A.  It was important because people loved him.  People wanted to

 6     see him and to get to know him from close by, because for them, Ramush

 7     was an idol and he still is.

 8             "Q.  Did they see him as a strong, powerful commander?

 9              "MR. EMMERSON:  I appreciate Mr. Re may not be getting the

10     answer he wants, but to seek to put words in the witness's mouth through

11     the form of leading questions, in my submission, is not an appropriate

12     course.  Let him ask the witness questions in a non-leading form and have

13     the answers that he gets.

14              "JUDGE ORIE:  Mr. Re, could you reformulate the question or put

15     another question to the witness.

16              "MR. RE:

17             "Q.  You said a moment ago that for people Ramush was an idol.

18     Why did they see him as a idol?

19             "A.  I don't know.  That's what people thought.  They trusted

20     Ramush and they thought that he was a person who sacrificed his own

21     family to protect the whole population, and that's why he was considered

22     an idol.  So he was not ready to sacrifice only himself but his whole

23     family.

24             "Q.  What was the feedback you were getting from these people

25     about Ramush's command style?

Page 2887

 1             "A.  Ramush had no time to command everywhere, but people trusted

 2     him.  They thought that if Ramush went there, there would be no problem

 3     for them, for the people.  This is something that occurred among the

 4     people.  That's how the people loved him."

 5             MR. EMMERSON:  Now, Mr. Rogers read to you an extract from the

 6     evidence of Skender Rexhametaj on this question of Mr. Haradinaj's

 7     authority, but -- but he -- he read only one passage and I'm going to

 8     show you two, because they're put in proper context.  First the one that

 9     Mr. Rogers read to you in his closing speech.  This is tab 20.

10                           [Video-clip played]

11             "Q.  Sir, I'll repeat the question for you.  Can you tell us,

12     sir, whether KLA soldiers in the Dukagjin Zone respected

13     Ramush Haradinaj's authority and I'm referring to the time period from --

14     from prior to the 23rd of May, 1998, and after the 23rd of May, 1998."

15             MR. EMMERSON:  I'm sorry we've jumped forward I'm afraid.  Tab 20

16     it should be, first of all, which is from the transcript of

17     Mr. Rexhametaj's evidence in this trial at 1097.

18             [Microphone not activated]... video in that section, so I'll just

19     read the transcript.  This is Mr. Menon asking about a passage in

20     Mr. Rexhametaj's witness statement:

21             "A.  The fourth sentence of the Albanian version of my statement

22     should correspond to the English version which reads, 'Prior to the 23rd

23     of June ... he already had de facto authority over the Dukagini zone.'"

24             Mr. Rogers' point:

25             "... and I don't think," says Mr. Menon, "that there's any

Page 2888

 1     dispute that the 'he' you're referring to is Ramush Haradinaj.  Can you

 2     tell me, sir, what you meant by the word 'authority'?

 3             "A.  I meant that based on the resistance that he put up with his

 4     family, the incident had a lot of echo in the whole country and Ramush as

 5     a result of that was widely respected for this resistance that he put up

 6     in protecting his family and his village.  And with the passage of time,

 7     in fact, he became famous.  Everyone -- most of the people knew him and

 8     had a lot of respect for him, because, as I said, he put up that

 9     resistance and protected his family and his village.  This is my way of

10     thinking when I said that.

11             "Q.  ... sorry, sir, continue," says Mr. Menon.

12             "A.  So on the basis of what I just said people respected him

13     and ... if you're respected you enjoy authority ... I don't mean here

14     legal authority but the authority of a person who was successful in

15     protecting his family and his village and his people.  This is my line of

16     thinking."

17             MR. EMMERSON:  So "authority" there is being misused by the

18     Prosecution in their closing submission.  This is not any form of

19     authority over other people.  This is authority in the sense that people

20     respected Mr. Haradinaj for what he had done, but let's look at how

21     Mr. Rexhametaj then goes on to explain it a little later.  This is 1099.

22     It's tab 21.

23                           [Video-clip played]

24             "Q.  Sir, I'll repeat the question for you.  Can you tell us,

25     sir, whether KLA soldiers in the Dukagjin Zone respected

Page 2889

 1     Ramush Haradinaj's authority?  And I'm referring to the time period

 2     from -- from prior to the 23rd of May, 1998, and after the

 3     23rd of May, 1998 -- or, excuse me, after the 23rd of June, 1998, it

 4     should read.

 5             "A.  The population always respected him.  The population was

 6     suffering.  Ordinary people were suffering, and he defended them.  So

 7     that's why they respected him.

 8             "Q.  And my question actually was specific to KLA soldiers, sir.

 9             "A.  The whole population --

10             "Q.  Okay.  Thank you, sir.

11             "A.  -- wanted defence and they got it.

12             "Q.  Okay.  Thank you very much, sir.  And can you elaborate,

13     sir, for us on why Mr. Haradinaj was appointed as the commander of the

14     Dukagjin Zone officially on the 23rd of June, 1998?  Why was he selected?

15             "A.  Because we proposed him.

16             "Q.  Why did you propose him?

17             "A.  Perhaps we were not sure that we, the others, could carry

18     that duty upon our shoulders.  That's why we proposed him.  He had shown

19     what he could do and we proposed him.  Ramush could have refused, but he

20     took on the responsibility by respecting us and our proposal.  He -- out

21     of his goodwill, he accepted the task, but he could have refused.

22             "Q.  And, sir, when you say 'he had shown what he could do,' can

23     you clarify what you mean by that, sir?

24             "A.  I mentioned it earlier.  He had shown that he was a good

25     soldier, a good leader, and a person who could gather people around him;

Page 2890

 1     and that's why we decided that Ramush be a co-ordinator for the subzones

 2     earlier.  The same logic worked later.  There were five professional

 3     officers there, and each of us could have taken that burden upon their

 4     shoulders, but we proposed him, and he did not hesitate.  He respected

 5     our will and our proposal for him to be the leader.

 6             "Q.  And, sir, when you say that Ramush Haradinaj was a person

 7     who could gather people around him, what do you mean by that, sir?

 8             "A.  I mean that he knew how to respect other people.  He was a

 9     good communicator.  He was reasonable.  So this was a person who could

10     gather people around himself.  It was this that I meant.  He was able to

11     discuss the problems that people had with them.  He listened to their

12     concerns and that's why he had that reputation."

13             MR. EMMERSON:  Your Honour, there's one final passage I want to

14     deal very --

15             JUDGE MOLOTO:  Would that not be a convenient moment?

16             MR. EMMERSON:  Simply that I'm reaching the end of the topic and

17     I'm happy to break and do one section after the break or do it now.

18             JUDGE MOLOTO:  Okay, go ahead.

19             MR. EMMERSON:  Simply as regards that last passage, obviously

20     Your Honours have seen that the testimony is that Mr. Haradinaj gathered

21     people around him because he was reasonable, knew how to respect them and

22     listened to their concerns.

23             JUDGE MOLOTO:  Yes, we have heard, we have seen that.  Just do

24     the last thing that you've said you wanted to do before the break.

25             MR. EMMERSON:  Yes.  Tab 22, please.  This is Zymer Hasanaj from

Page 2891

 1     the first trial.

 2                           [Video-clip played]

 3             "Q.  In paragraph 5, you refer to an expression:  'God in heaven;

 4     Ramush on earth,' meaning that he had great authority.  Then you say, 'No

 5     one was superior to him.'

 6             "I just want you to tell the Trial Chamber, the Judges, what you

 7     mean by 'no one was superior to' Ramush.

 8             "A.  I -- I said this because from -- every time there was a Serb

 9     attack until the KLA became engaged in the war, when the name became

10     known, Ramush -- that of Ramush Haradinaj, it was myself who put that

11     expression, 'God in heaven; Ramush on earth.'

12             "Q.  What do you mean by 'no one was superior to him'?

13             "A.  I thought that -- how can you put up a resistance to the

14     enemy.  I didn't know that it was difficult to put up resistance.  In

15     fact, it was very small resistance that was put up.

16             "Q.  I'm not sure I quite understand your answer.  I'm asking you

17     about why you say that no one was superior to him.  What do you mean by

18     'superior to' Ramush?

19             "A.  After his -- he became known, I don't know how it has been

20     translated there, but I personally gave this description.  It was my

21     personal opinion.

22             "Q.  And what do you -- what do you mean by it?  That's what I'm

23     asking you:  What do you mean by 'no one was superior to him'?

24             "A.  He was good then and he's good now -- I mean, he's loved by

25     people.  He's considered -- he is -- he's held in esteem by the Albanian

Page 2892

 1     people."

 2             MR. EMMERSON:  Thank you.  That would be a convenient moment.

 3             JUDGE MOLOTO:  Thank you.  We'll take a break and come back at

 4     quarter to.  Court adjourned.

 5                           --- Recess taken at 10.22 a.m.

 6                           --- On resuming at 10.46 a.m.

 7             JUDGE MOLOTO:  Yes, Mr. Emmerson.

 8             MR. EMMERSON:  I wonder if I may now to turn to the evidence that

 9     you've heard concerning those people who were detained at Jabllanice and

10     what they say about whether they did or did not see Ramush Haradinaj

11     there at any time and what can be inferred from that.

12             First of all, you heard testimony of from Witnesses 75 and 76 in

13     connection with the detention of their relative who they said was

14     detained on several occasions but was held for a considerable period up

15     until the end of May and that they visited the compound on numerous

16     occasions and saw various members of the staff there, and they both

17     stated in terms that they never saw Mr. Haradinaj in Jabllanice on any of

18     those visits.  That's transcript 1845 and P304, the witness 76 92 ter

19     statement at paragraph 13.

20             Witness 75 stated that it was Lahi Brahimaj who was in charge of

21     Jabllanice during the period he went there and accurately that

22     Mr. Haradinaj was not yet commander of the Dukagjin area.

23             The testimony of Shefqet Kabashi that was admitted in these

24     proceedings from the Limaj trial, he said that he had been based in

25     Jabllanice as a KLA soldier consistently from April through to

Page 2893

 1     September 1998, and his evidence was that there was, during the whole of

 2     that time, no one in a more senior position to Lahi Brahimaj in command

 3     of Jabllanice, and there is no suggestion whatever in that testimony that

 4     during the whole of that time he ever saw Mr. Haradinaj anywhere in

 5     Jabllanice.

 6             Now, we know he did go to two formal meetings there.  We know he

 7     did go to intervene on Skender Kuqi's behalf, and we know that he did go

 8     on one occasion, according to Witness 80 at least, when he was surrounded

 9     by other people and there were villagers present in the staff in the main

10     part of the village, not the so-called detection facility.  But Kabashi

11     never saw him there.

12             So the suggestion that Mr. Rogers tried to make that

13     Mr. Haradinaj was a regular visitor doesn't appear on its face to be

14     consistent with the testimony of any of those witnesses.

15             But what about Witness 3?  Witness 3 was on his evidence detained

16     at Jabllanice for a considerable period of time, escaped, was taken back

17     there.  And of course he came across Ramush Haradinaj for the first time

18     when he got to Glodjan, and after that, as we've seen, nothing ever

19     happened to him again.  In other words, he did not see Mr. Haradinaj at

20     Jabllanice.

21             What about Witness 6?  Witness 6 is significant because as

22     Your Honours know, he was detained for six weeks from the 13th of June,

23     and his testimony, which has been admitted, is -- is that a day after the

24     escape on the 18th or 19th of July, he was freed within the confines of

25     the compound.  In other words, he was -- to all intents and purposes, by

Page 2894

 1     appearance he was working in the kitchens and free to move around the

 2     compound, albeit that he was still detained.  So it's not as though he

 3     was locked in a room where he wouldn't have been able to see anybody

 4     coming or going.  He would have seen all comings and goings in and out of

 5     the compound.

 6             Let me read you his testimony from trial 1.  This is page 5391.

 7     He's asked about when Skender Kuqi goes to hospital, and he says:

 8              "A.  I don't know.  I didn't see him.  But when I took bread to

 9     Pal Krasniqi, he," Skender Kuqi, "wasn't there any more.

10             "Q.  And might that have been a day or two after the escape

11     attempt that you've described?"

12             And he says:

13             "One day after.

14             "Q.  And from that point onwards, just so that we have the

15     picture, once again, there was only one person in detention, namely Pal

16     Krasniqi; is that correct?

17             "A. Yes.

18             "Q. You were still not free to leave, but to external appearances

19     you were wandering around the yard and washing the dishes and so forth;

20     is that right?

21             "A.  That's right."

22             And then a little further down:

23             "Q.  And just one final question on timing before I ask you one

24     or two other matters.  Do you know how long it was after your -- you got

25     your relative freedom that the man from Zahaq arrived.

Page 2895

 1             "A.  One or two days after that, I can't be very precise.

 2             "Q.  Thank you.  What I want to do now is just put one or two

 3     passages to you, Witness 6, from first of all the witness statement that

 4     you made in February and March 2004.  That was the statement that you

 5     made when you were shown some photographic line-ups, and you were shown a

 6     line-up of photographs that included a photograph of Ramush Haradinaj.  I

 7     won't bother to pull it up on the screen, but I'm just going to read to

 8     you the passage from the witness statement that you have signed and ask

 9     you to confirm that it is correct.  Having been shown the photograph

10     which was a line-up including a photograph of Mr. Haradinaj you said

11     this, and I'm quoting from your statement at paragraph 3:

12             "'I can identify Ramush Haradinaj.  While his face has become

13     familiar to me after the war from several newspaper articles and

14     television programmes, I did not know him from the time of the war and

15     cannot remember seeing him in the KLA prison in Jabllanice.'

16             "I'll ask you, please, to confirm that that is a correct

17     statement of your evidence.

18             "A.  Yes."

19             So Witness 3, who was there for six weeks and moving freely

20     around the compound from -- I'm sorry, Witness 6.  Did I say 3?  I do

21     apologise.  And moving freely around the walled compound from around

22     about the 18th of July, he never saw Ramush Haradinaj there either.  And

23     so we are left with Mr. Rogers' speculative theory as the only evidence

24     that the Prosecution can point to connecting Ramush Haradinaj to any of

25     these crimes, and the theory goes like this:  You can be sure from the

Page 2896

 1     testimony of the protected witness that the three boys were arrested and

 2     taken to Jabllanice prior to the attacks by the Serb forces on Grabanice,

 3     and you can be sure that the occasion when the protected witness saw

 4     Ramush Haradinaj surrounded by a group of men inside the staff took place

 5     after the attack on Grabanica, probably a week after.  Therefore, they

 6     must have been in detention all the way through at Jabllanice, and even

 7     though the protected witness didn't say that he saw them there that day,

 8     the Prosecution say Mr. Haradinaj must have known that they were there,

 9     and therefore, the Prosecution say, he must be complicit in the joint

10     criminal enterprise.

11             That's, as I've understood it, is the way that Mr. Rogers is

12     finally driven to put his case.

13             The short answer is this:  Whilst one cannot but admire the

14     forensic ingenuity with which he sought painstakingly to build the

15     elaborate edifice of inference that he's invite you go to draw, its

16     foundations rest on sand.

17             First of all, Your Honours are going to have to read the

18     testimony of the protected witness with care, because as regards the

19     dates, the days and the occasions, he was multiply inconsistent.  The

20     suggestion, and it's made in the Prosecution brief at para 211 quotes:

21             "There can be no uncertainty that the Count 1 victims were

22     executed after Haradinaj's visit."

23             Simply cannot be derived on any rational view from a reading of

24     the testimony of the protected witness as a whole.  He said in clear

25     terms when asked directly about the timing of those two incidents that

Page 2897

 1     the incidents with the 20 or 30 villagers took place before the

 2     ear cutting incident had occurred.  That's T2414.  He then underscored

 3     that by making it clear on several occasions that the incident with the

 4     villagers took place after the Serb attack on Grabanice but that the

 5     incident with the boys being arrested and detained took place before

 6     that.

 7             Now, Your Honours punctured the myth with a simple question in

 8     the course of Mr. Rogers' submission:  Do we know on the evidence when

 9     the boys were taken to Jabllanice?  Answer from Mr. Rogers:  No, we do

10     not.

11             That is the end of the matter.  Because unless the Prosecution

12     could prove that beyond reasonable doubt, the date on which the boys were

13     taken to Jabllanice, they couldn't begin to invite you to return a

14     conclusion that they must have been there on the day that Mr. Haradinaj

15     was there with the 20 or 30 villagers.  That's the end of it.  But even

16     if it weren't the end of it, and even if they were there, and even if it

17     was possible to draw that inference, the protected witness didn't see

18     them there, so why should Mr. Haradinaj have seen them there?  Because

19     the protected witness and Mr. Haradinaj were in the same building, the

20     staff, in another part of Jabllanice.  So how can Mr. Rogers suggest that

21     Mr. Haradinaj must have known that they were there when the protected

22     witness himself -- if -- even on Mr. Rogers' completely speculative

23     theory, didn't know that they were there at that time.

24             The fact of the matter is that -- that -- and I'm going to invite

25     Your Honours to -- and it will need to be done with care, to go through


Page 2898

 1     each and every time when the witness tried to locate the dates of

 2     occasions and you will see that they are wholly inconsistent the one with

 3     the other.  So for example, he -- there is a reference to a village

 4     called Bucan in the evidence and to detentions having taken -- perhaps

 5     this part I ought to do in private session, in fact.

 6             JUDGE MOLOTO:  May the Chamber please move into private session.

 7                           [Private session]

 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   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 2899











11 Page 2899 redacted. Private session.















Page 2900

 1   (redacted)

 2                           [Open session]

 3             THE REGISTRAR:  Your Honours, we're in open session.

 4             JUDGE MOLOTO:  Thank you, Mr. Registrar.

 5             Mr. Emmerson, the Chamber did say it's not going to impose time

 6     limits.

 7             MR. EMMERSON:  I'm moving to the end.

 8             JUDGE MOLOTO:  You are sharing this day with two other counsel.

 9     How long are you going to be?

10             MR. EMMERSON:  I shall be no longer than another 20 minutes and

11     then I'll be finished.

12             JUDGE MOLOTO:  Twenty minutes.

13             MR. EMMERSON:  Yes.  I've obviously timed my submissions in the

14     light of the indication that Your Honours gave this morning.

15             JUDGE MOLOTO:  Indeed, but this time must be shared equally

16     with -- at least the other two must also have enough time.

17             MR. EMMERSON:  Yes, but Your Honour indicated this morning that,

18     if necessary, we would go into tomorrow.

19             JUDGE MOLOTO:  The first preference is we finish today.

20             MR. EMMERSON:  Well, let me -- let me -- let me move things along

21     quickly if I can then.

22             Can I -- can I then just deal briefly with the evidence of

23     Zoran Stijovic because Mr. Rogers introduced him when he opened the case

24     on the basis that the documents that Mr. Stijovic produced were given to

25     the Trial Chamber "for what they're worth."  And he had to make that


Page 2901

 1     concession because over a period of time Stijovic had acknowledged, in

 2     one form or another, although it had to be drawn from him like teeth,

 3     that the material that he was producing was often anonymous and -- and

 4     that the methods by which it was obtained included bribery, blackmail,

 5     and on the evidence the possibility, the real possibility that couldn't

 6     be excluded of torture.

 7             But in their closing brief this material is quoted liberally and,

 8     indeed, Mr. Rogers cited the testimony of Mr. Stijovic specifically to

 9     you in order to justify the suggestion that there was a close association

10     between Mr. Haradinaj and Mr. Balaj.  So we have to deal with it.  And

11     can I deal with it just by taking you to a few short passages, please, in

12     the video evidence of Mr. Stijovic from trial one and then from this

13     trial, because you'll see how his testimony evolved.

14             First of all, tab 23.  This is trial one when he begins to

15     explain the RDB secret service's methodology in obtaining the material

16     that the Prosecution have chosen to put in evidence and rely on.

17                           [Video-clip played]

18             "A. ... by your leave, I propose to use a term 'a live source'

19     which means that it's a human being providing information to us.  I think

20     that would avoid any further miscommunication and help us avoid confusion

21     in the future.

22             "Q.  Two-hundred people you referred to in the KLA before, are

23     they live sources?

24             "A.  Yes.

25             "Q.  And how were people in that category rewarded by the state

Page 2902

 1     security?

 2             "A.  The motivation of these people in their work for the

 3     State Security Service was diverse, just like anywhere else.  The basic

 4     element was money.  The second possible motive was of political nature

 5     where they did not agree or they disapproved of -- of various activities.

 6     And the third motive was to compromise somebody.  If somebody -- if we

 7     had information about somebody that was of compromising nature, then we

 8     would resort to blackmailing.  I'm using that term because this is what

 9     it amounts to everywhere else in the world.  And in this category, we are

10     mostly dealing with partially verified information, and these people

11     worked under a pseudonym.  They would only be mentioned under pseudonym

12     in various reports.  If you wish, I can explain our methodology and tell

13     you how we made contact with such people.

14             "A.  If it assists the Trial Chamber.

15             "JUDGE ORIE:  I leave it in your hands, Mr. Re.

16             "MR. RE:  I anticipate the Defence will ask the question so I

17     might as well get in first.

18             "MR. EMMERSON:  I'd certainly like to hear a little bit more

19     about the blackmail, if possible, in chief."

20             MR. EMMERSON:  Pause there.

21             Mr. Stijovic had no problem using the word blackmail in trial

22     one, and he does give a little further evidence of the fact that in a

23     society riven by blood feuds evidence that one person A was having an

24     affair with the wife of another person B was a very potent tool.  It was

25     really effective blackmail.  Can we just look at how he explains that in

Page 2903

 1     trial one.

 2                           [Video-clip played]

 3             MR. EMMERSON:  Tab number 26 [sic].

 4                           [Video-clip played]

 5             "Q.  ... what I was asking you a moment ago.  When armed with

 6     that information of 'immoral behaviour,' how did that in your

 7     professional experience affect the assessment of the reliability of the

 8     information you received from those immoral-type people?

 9             "A.  The quality of such information in such an atmosphere with

10     predominating patriarchal moral principles, when one finds out that there

11     is a case of adultery among relatives, that there is a situation which

12     could be of compromising nature, not only for the persons involved but

13     also for the entire family that could lead to some very typical

14     consequences such as blood revenge or blood feud which exists in Kosovo

15     and Metohija, then this was a very good tool for recruiting a person.

16     And the higher the level, the greater the possibility to keep that person

17     under the control."

18             MR. EMMERSON:  Something that obviously happened between trial

19     one and trial two, because Mr. Stijovic didn't seem to like the word

20     blackmail in trial two.  Can we look at tab 25, please.

21                           [Video-clip played]

22              "JUDGE MOLOTO:  What I wanted to ask you, Mr. Stijovic, is in

23     that example of A and B, that whole explanation, that whole situation

24     that you explained to us, what do you call that in one word?

25              "THE WITNESS: [Interpretation]  I call it choice.  Either you

Page 2904

 1     work for us or we will disclose all this -- all these immoral things to

 2     your friend.

 3              "JUDGE MOLOTO:  My question was in one word.  You said "choice."

 4     Thank you so much.

 5             "THE INTERPRETER:  Interpreter's correction:  The relationship

 6     was between the wife of A and B.

 7             "THE WITNESS: [Interpretation] You can call it blackmail.  It

 8     only occurred to me now.  I'm trying to find another appropriate term in

 9     Serbian but I'm unable to.

10              "JUDGE MOLOTO:  I'm not asking you what I could call it.  I'm

11     asking you what you call it in one word.

12              "THE WITNESS: [Interpretation] Blackmail.

13              "JUDGE MOLOTO:  Thank you."

14             MR. EMMERSON:  So that's bribery and blackmail, but -- but -- but

15     almost more serious than all of that in terms of compromising the

16     integrity of the material that Mr. Rogers relies upon and cited in his

17     closing submissions yesterday is torture.

18             Now, what you're about to see is me cross-examining Mr. Stijovic

19     in the first trial where he had put in evidence certain statements from

20     two witnesses called Bekim and Naser Kalamashi concerning allegations of

21     crimes by the KLA in the Dukagjin region, and those witnesses had then

22     been interviewed by the Office of the Prosecutor and had made statements

23     to the Prosecutor saying that they were tortured inside Gjakove police

24     station to make the witness statements that Mr. Stijovic had produced and

25     that the Prosecution themselves had produced.

Page 2905

 1             Sorry, I'm -- I'm corrected.  This was in -- in -- in the

 2     retrial?  No, it wasn't.  It was in the first trial.  Well, I think it

 3     was in the first trial.  We'll see in just a moment.  So I'm putting to

 4     him, first of all, a lengthy passage -- maybe it was the retrial.  I'm

 5     putting to him, first of all, a lengthy passage of an allegation of

 6     torture and we see how he responds to it, because, bear in mind, he's put

 7     these statements forward as reliable, that is to say, the statements

 8     obtained by the Serbian intelligence, and the Prosecution have put them

 9     forward as reliable evidence.  Can we a look at tab 26, please.

10                           [Video-clip played]

11             "MR. EMMERSON:  Perhaps we can go back to the witness statement,

12     please, and pick it up at paragraph 15 at the bottom of the page after

13     the men had been stripped naked and beaten:

14             "Q.  'We had to get on trucks and on halfway to Gjakova the

15     police came and we were ordered to get on police jeeps and taken to

16     Djakovica SUP.  Then we were kept in the basement of the SUP premises for

17     the following three days under constant beatings and torture.  The police

18     were coming to the basements and taking one by one for questioning.  The

19     interviews took place in the office on the fourth or fifth floor.  I was

20     arrested and kept there with other 11 co-villagers.

21             "'When I had been taken for interview in the office' --

22             "JUDGE MOLOTO:  Are you going to read the whole thing?

23             "MR. EMMERSON:  Yes, I am, because it's obviously being

24     translated for the witness.

25             "JUDGE MOLOTO:  I beg your pardon.

Page 2906

 1             "MR. EMMERSON:

 2             "Q.  'When I had been taken for interview in the office was

 3     sitting a man in civilian and asking questions in Serbian language.  The

 4     only phrases he uses in Albania were as follows:  Why are lying to us

 5     that you had not been KLA?  Did you have an arm?  Fuck your mother.  Then

 6     all questions were only in Serbian language which I did not understand.

 7     I'd been interviewed for about ten of times but in different offices of

 8     Djakovica SUP HQ.  But the interviewer was always the same and did not

 9     make any written notes.

10             "'During the interviews, apart from the interviewer, there were

11     always present two other civilians who were beating me with baseball bats

12     all over my body.  On the 6th of September,' that's the day after the

13     statement you refer to, 'I recall that a man, I do not remember whether

14     in uniform or civilian clothing, came to the basement and ordered us to

15     sign some document.  We were asking if he has translated to read us what

16     we are going to sign.  The man replied, You will see translator.  Then we

17     were beaten again and forced to sign document without knowing the

18     content.

19             "'In October 2006, the ICTY ... read over to me a statement

20     registered in the ICTY archives ... I already said, it could be the same

21     as I signed in the premises of SUP in Djakovica because I did never sign

22     any other document.  But I would like to raise my objections regarding

23     the fact that I signed only one page.  But the statement with the content

24     I was acknowledged today was consisting of four pages.  I would like to

25     stress that there is no one word of true.  I did not say anything what

Page 2907

 1     was mentioned in this statement as below ...'

 2              "Now, if I've understood what you've told us already, correct

 3     me, Mr. Stijovic, you know nothing about the circumstances in which these

 4     men were detained; correct?

 5             "A.  First of all, I don't know that they were detained.  I don't

 6     have any information to that effect.

 7             "Q.  Well, there's, as I said to you, testimony from the senior

 8     officer at SUP Djakovica that they were detained as well as there's the

 9     evidence in the statement you've read.  But the question I'm asking you

10     is:  If they were detained when the statement was taken that you relied

11     upon, you don't know whether they were tortured or not, do you?

12             "A.  Well, I don't know, but if you permit me, Your Honours, to

13     say just a couple of sentences.

14             "Q.  Well, are they in answer to the question?  I thought you'd

15     answered the question.  You don't know one way or the other; is that

16     right?  I mean, a minute ago you told us you didn't know anything about

17     the detention, Mr. Stijovic.  Did you or didn't you?

18             "A.  Your Honours, this is a complex question.  I cannot reply

19     with a yes or a no to this question.  If you permit me to say a couple of

20     sentences, perhaps it will be clearer, with all due respect,

21     Mr. Emmerson.

22             "Q. Before you do, Mr. Stijovic, before you add whatever it is

23     you want to add, it is a very simple question and it is capable of an

24     answer, yes or no.  Do you know anything of the circumstances of the

25     detention of these 11 men including Naser Kalamashi between the 3rd and

Page 2908

 1     the 6th of September, 1998?  Do you know how they were treated during

 2     those three days, yes or no?

 3             "A.  No.

 4             "Q.  Thank you.  So when you summarises the content of the

 5     statement and put forward its contents as reliable, you have no idea

 6     whether they were reliable or not, do you?

 7             "A.  No.

 8             "Q.  Thank you.

 9             "JUDGE MOLOTO:  I guess that's the end of your cross-examination?

10     Thank you so much."

11             MR. EMMERSON:  Your Honour, you'll be pleased to hear that's the

12     last passage of video I need to play before I move to the concluding

13     remarks, but -- but -- but that is the source of the material that

14     Mr. Rogers chooses to put before you.  At the beginning of the trial it

15     was shoveled in for what it was worth.  At the end of the trial it's

16     cited in the closing speech and in the closing brief.

17             Again, prosecuting serious cases carries responsibilities.

18             Mr. Rogers then took me to task in his closing speech for

19     referring to a document that was not admitted in evidence and he told you

20     that had been done by the Haradinaj Defence at paragraph 185.  Let me

21     tell you what the document is and why it's not an objectionable point

22     because it is one of Mr. Stijovic's allegations that Mr. Rogers is yet

23     again pedaling.

24             In support of the indication that there are KLA blacklists of

25     targets, we've already seen that he relied on a FARK list, not a KLA

Page 2909

 1     list, that wasn't a list of targets but a list of missing and/or wanted

 2     persons by Witness 17.  So that was the first list.  The second list put

 3     forward by the Prosecution is a list that was said to have been found by

 4     the Serbian police when they overran Mr. Haradinaj's family compound on

 5     the 24th of March.  He relies on that list.  Where does he get evidence

 6     of that list from?  He gets it from Mr. Stijovic's witness statement.

 7     Now, Mr. Stijovic, in his witness statement, refers to the fact that

 8     there was found in the premises a list of Albanians who were suspected of

 9     co-operating with the Serbian forces.  That's to be found at transcript

10     570, tab -- line 13.  That testimony was based on his Rule 92 ter

11     statement relating to the search of the Haradinaj family compound on the

12     24th of March which described that document as a list of individuals

13     targeted for assassination of Serb spies.  That is P121, paragraph 42.

14             Now, the ruling of the previous Trial Chamber was that any aspect

15     of Mr. Stijovic's 92 ter statement that was not directly supported by

16     documentary evidence would simply be ignored and the Trial Chamber then

17     went through the documents that he produced, throwing a very large number

18     of them just exactly where they belonged, namely in the wastepaper

19     basket.  One of them was that report on the basis of which that passage

20     appeared in the 92 ter statement and on the basis of which the evidence

21     was elicited from the witness.  That report was not admitted into the

22     original trial and the Prosecution didn't seek to admit it in this trial.

23     So, to that extent, the allegation was unsubstantiated, remains

24     unsubstantiated, and has no supporting evidence or probative value.  But,

25     more importantly, the report itself and the reason why it was chucked out

Page 2910

 1     rightly by the last Trial Chamber says in terms that there's a list of

 2     names of Albanians but the MUP, the police who found it, didn't know

 3     whether it was a list of KLA members or KLA targets.

 4             Now, if that isn't misleading prosecuting, I really don't know

 5     what is.  That's the blacklist allegation.

 6             KLA communiques.  The Prosecution realise again in this trial on

 7     KLA communiques.  We dealt with this in our closing brief at paras 174 to

 8     176.  Can I put it very briefly.  The man who wrote them gave evidence in

 9     the first trial.  His name is Jakup Krasniqi.  His evidence has been

10     admitted.  He says in terms that he didn't have any of the information or

11     any conversation at any time with Ramush Haradinaj.  They do not reflect

12     any policy of Ramush Haradinaj.  They were drafted by the General Staff,

13     which, as you've heard, was this somewhat fanciful body floating around

14     the Albanian border that never met and didn't even know who the other

15     members of the General Staff were.  They were propaganda tools.  They

16     included lies, and, above all, none of them refer to Mr. Haradinaj.  None

17     of them were seen by Mr. Haradinaj before they went out.  None of them

18     were signed by him or based on information from him, and they involve

19     incidents outside the indictment area and outside the indictment period.

20     None of them were authored by or emanated from Mr. Haradinaj, and they do

21     not and cannot reflect any policy of his.  They are worthless and that,

22     no doubt, is the reason why the former Trial Chamber regarded them in

23     that way.

24             So, Your Honours, that really brings me to three short points in

25     conclusion.

Page 2911

 1             First of all, there are two remaining areas which, in our

 2     submission, are simply irrelevant to this case that the Prosecution have

 3     relied upon.  There are two allegations that were not even -- they were

 4     called but not even referred to in the judgement in the last case because

 5     they were so irrelevant in relation to this allegation about Jabllanice.

 6             The first is the suggestion that FARK was actively excluded by

 7     Mr. Haradinaj and that there was this confrontation that took place

 8     shortly after their arrival.  We dealt with that in detail in our brief,

 9     taking it in a few short sentences.  It had nothing whatsoever to do with

10     Jabllanice.  It was a confrontation between two forces who were still

11     then in conflict with one another and where the soldiers at issue had

12     driven without authorisation into the area of responsibility of a force

13     with whom they were in confrontation.  And as the witness himself

14     accepted under the rules of engagement, they could have been shot dead on

15     sight, but it was a conflict, regrettable as it might have been, that was

16     resolved very shortly afterwards when the two forces came to agree on the

17     distribution of officers and amalgamate over a period time.  And you'll

18     remember the evidence in cross-examination concerning that.  It's got

19     nothing to do with an allegation to ill-treat detainees in Jabllanice or

20     to mistreat, torture or kill civilians.  It was a conflict between

21     soldiers and is miles away.  It's not charged on the indictment and

22     though it was the subject of evidence in trial one, it doesn't even get a

23     mention in the judgement, rightly so, because it's irrelevant and we'd

24     ask you to take the same approach.

25             And, finally, the Stojanovic allegation.  Again, very briefly,

Page 2912

 1     before the start of an armed conflict, spontaneous response by the

 2     villagers of Glodjan following that dreadful attack on the 24th of March,

 3     and their collective belief that the Stojanovics had not only provided

 4     information but their correct understanding that the Stojanovic home had

 5     been used as -- by the Serbian forces as, in effect, a military point

 6     from which to launch the attack.  There's no evidence that Mr. Haradinaj

 7     was present.  The evidence that was called at the original trial in that

 8     regard was regarded as unreliable, and there is no evidence that he

 9     participated in any way or condoned it, and -- and whatever the position

10     may have been, this was a spontaneous act of revenge by a community that

11     had been ravaged days before by a dreadful attack that, let's not forget,

12     was intended to be another Prekaz.  Children shot point blank.  And their

13     response to a Serb family in their midst who allowed their property to be

14     used to launch that attack.  So it really has nothing whatever to do with

15     Jabllanice.

16             Your Honours, there's just two final comments, if I may.

17             First of all, I said to you earlier on that you -- your law

18     clerks were going to need very, very carefully to look at every single

19     footnote in the Prosecution's closing brief; because, regrettably, I have

20     to report to you that in a large majority of cases, the footnotes do not

21     support the citation, and in many cases they run flatly contradictory to

22     what the Prosecution claim the material represents.  I'm not going to

23     take time going through it because it will take too long, but we have

24     prepared and will now hand up a schedule of the worst misrepresentations

25     when you trace through the material in the footnotes.

Page 2913

 1             And, finally, this, if I may:  I -- I -- I opened the submissions

 2     that I made to you by saying a little about Ramush Haradinaj's as a

 3     soldier and as a politics.  As a soldier, we say he fought an honourable

 4     war and that is why he enjoined the popularity that he did.  As a

 5     politician, he forged consensus.  He went into coalition government with

 6     the LDK critically, and he was known for the protection that he sought to

 7     extend to all national minorities within Serbia including the Serbs that

 8     had remained behind and other national minorities, a government of

 9     national unity.  What is critical about that is that has been his policy

10     throughout, the protection of civilians, and the evidence in relation to

11     that, in our submission, is overwhelmingly clear.

12             The tragedy of this prosecution which has now gone on for seven

13     years isn't just a personal tragedy for Mr. Haradinaj and his family,

14     it's also a tragedy for Kosovo, because they have been deprived of a

15     leader who could have eradicated corruption and brought Kosovo fully into

16     the international community, and they've been deprived of that through

17     irresponsible prosecuting from the start when Carla Del Ponte went

18     shopping and fishing for prosecutors who would take the brief after she

19     acknowledges that she'd been advised there was no case, to the very end

20     when Mr. Rogers shovels in evidence produced by Zoran Stijovic, seeks to

21     rely on it and then misrepresents it in his submissions and, indeed, has

22     the gall to criticise me for putting that right.

23             I just want to finish, if I may, by reminding Your Honours that

24     at the back of the closing brief and, indeed, in the back of this bundle

25     you have statements from the -- first of all, the special representative

Page 2914

 1     of the Secretary-General of UNMIK who was effectively running Kosovo

 2     during the period that Ramush Haradinaj was prime minister; that is,

 3     Soren Jessen-Petersen, who has worked for the UN for 30 year and -- and

 4     was based first in Sarajevo, then in Macedonia, and then as SRSG in

 5     Kosovo from 2004 to 2006.  And he describes Mr. Haradinaj in these terms:

 6             "I was impressed by his performance as prime minister.  He

 7     provided strong leadership, worked hard and maintained constructive

 8     relations with all citizens of Kosovo, political parties and the

 9     international community, including UNMIK.  He was particularly affective

10     in steering substantial progress on the implementation of the standards

11     for a multi-ethnic democratic and law abiding Kosovo which the

12     international community had established as criteria for leading Kosovo

13     towards the beginning of the talks to determine the status of Kosovo.  In

14     that connection, the situation and the treatment of the minorities and

15     very -- are very important.  The Kosovo Serbs were of special

16     significance, and as prime minister, Mr. Haradinaj took several

17     initiatives to reach out to the Kosovo Serbs through personal action or

18     by urging his cabinet members and citizens of Kosovo to do likewise."

19             He then describes Mr. Haradinaj's resignation and voluntary

20     surrender to The Hague, a decision which was taken by Mr. Haradinaj in

21     recognition of the fact that if Kosovo wanted to be treated as a state

22     and welcomed into the family of nations, then its prime minister needed

23     to behave like a statesman and set an example and come here and face a

24     fair trial.  Unfortunately, he has not faced a fair prosecution.

25             What does Soren Jessen-Petersen say about it?  The same

Page 2915

 1     afternoon, that is, when the indictment came through, Mr. Haradinaj --

 2             MR. ROGERS:  I'm sorry to interrupt, but I don't think either of

 3     these statements are admitted into evidence.

 4             MR. EMMERSON:  They are.  They're both appended to our closing

 5     brief --

 6             MR. ROGERS:  [Overlapping speakers] I know they're appended to

 7     closing brief [overlapping speakers] --

 8             MR. EMMERSON:  [Overlapping speakers] together with -- together

 9     with a statement indicating they'd be referred to in closing submissions.

10     No objection has been taken in relation to that.

11             MR. ROGERS:  But that's a different point.

12             MR. EMMERSON:  Well, you had your opportunity to object.

13             MR. ROGERS:  Just a moment, please.  The question is whether or

14     not they're admitted into evidence and they're not.

15             MR. EMMERSON:  Unfair to the last, Mr. Rogers.  I'll ask

16     Your Honours for a ruling.

17                           [Trial Chamber confers]

18             JUDGE MOLOTO:  The Chamber accepts the statements.

19             MR. EMMERSON:  Thank you.

20             JUDGE MOLOTO:  Thank you.

21             MR. EMMERSON:  "The same afternoon as the indictment was received

22     Mr. Haradinaj had informed all concerned, had announced his resignation,

23     and had also been helpful in arranging for the surrender of his two

24     co-indictees.  In his public announcement he appealed for calm in Kosovo,

25     and in my statement, I did the same while at the same time regretting the

Page 2916

 1     departure of the able prime minister while commending him for his example

 2     in co-operation with the Tribunal.  I also express my regret that I would

 3     no longer be working with a friend, a statement that raised many

 4     eyebrows, but for me it is clear that a friend is somebody I can trust."

 5             Klaus Reinhardt --

 6             JUDGE MOLOTO:  I was just going to assure you that the Chamber

 7     has read even the next one.

 8             MR. EMMERSON:  I'm grateful.  Would Your Honours just permit me

 9     to place one passage on the record in those circumstances, a very short

10     one.  Klaus Reinhardt a -- a 41-year star general in the German armed

11     forces was commander of KFOR, the International Peacekeeping Force in

12     Kosovo, whilst Mr. Haradinaj was -- a -- in -- prime minister.  And he

13     says this:

14             "Mr. Haradinaj is a highly intelligent and honest man whom I

15     trusted whole-heartedly and whose advice I sought actively.  He never let

16     me down, nor did he ever misuse my confidence in him.  I enjoyed his open

17     and convincing character, his charismatic leadership, his absolute

18     reliability, and his deep humour.  Mr. Haradinaj is a born leader

19     dedicated to changing the poor living conditions in Kosovo and to

20     stopping the ethnic fighting among the peoples of Kosovo.  He was and is

21     a man with a vision for a better future for the different ethnic groups

22     in Kosovo, in particular for all the minorities.  He was the only

23     Albanian Kosovar leader I met who always asserted how important it was to

24     reconcile with the Serbs and other minorities and to give all refugees a

25     fair chance to resettle in Kosovo.  He didn't say that to please me, but


Page 2917

 1     he was, I believe, deeply convinced that otherwise the internal struggle

 2     in Kosovo would never stop and the people of Kosovo would never get a

 3     chance for a better and peaceful future."

 4             That is what the Prosecution in this case, based as it has been

 5     from start to finish on evidence which wouldn't hang a cat, has deprived

 6     Kosovo of.  We invite you to show Mr. Rogers and the Office of the

 7     Prosecutor the door.

 8             JUDGE MOLOTO:  Thank you, Mr. Emmerson.

 9             Mr. Guy-Smith.

10             MR. GUY-SMITH:  My turn?

11             JUDGE MOLOTO:  Your turn, sir.

12             MR. GUY-SMITH:  If I could impose upon Mr. Emmerson for the

13     podium.

14             JUDGE MOLOTO:  Mr. Emmerson.

15             MR. GUY-SMITH:  This is, as you well know, is a retrial, and we

16     are not on virgin territory.  Convictions and acquittals have taken place

17     concerning these men predicated on the testimony of the witnesses who

18     have been discussed with you thus far and who you, we trust, will review

19     in depth and extensively.  We believe that there's little, if any, doubt

20     that a vigorous examination of the first trial and perhaps the necessity

21     of sitting and watching the actual testimony may well be required.

22             It's important to remember something here, and it seems to have

23     been forgotten, which is in the first trial in which there was a full

24     acquittal for Mr. Balaj, the gentleman with the hideous reputation, no

25     affirmative evidence was presented on his behalf because the Prosecution

Page 2918

 1     failed to prove the case against him.  And in this trial, once again from

 2     the outset, let us be very clear that the Prosecution has failed to prove

 3     the case against him beyond a reasonable doubt.  He is entitled again to

 4     an acquittal.  Cast as many aspersions as you wish, Mr. Prosecutor.

 5     Discuss his foul or vile reputation as much as you want.  It does not

 6     change the fact that the evidence that has been presented is wanting, in

 7     the first instance, in the second instance, and in the final instance.

 8             Now, I've given a fair amount of thought to a particular part of

 9     my discussion and at one point thought it perhaps would be something to

10     avoid, but having listened to the remarks of yesterday and having once

11     again revisited the testimony of particular witnesses today, I feel it

12     incumbent to remind all of us that this is not a boxing match.  This is a

13     court of law, and in a court of law there are certain duties and

14     obligations that devolve to the parties and specifically to the

15     Prosecution, because the Prosecution is the representative of not an

16     ordinary party to a controversy.

17             Therefore, in a criminal prosecution its interest is not that it

18     shall win a case but that justice shall be done.  As such, the Prosecutor

19     is in a peculiar and very definite sense the servant of the law.  The two

20     fold [indiscernible] of which is that guilt shall not escape or innocence

21     suffer.  He may prosecute with earnestness and vigour.  Indeed, he should

22     do so.  But while he may strike hard blows, he is not at liberty to

23     strike foul ones.  It is as much his duty to refrain from improper

24     methods calculated to produce a wrongful conviction -- let me repeat

25     that.  It is as much his duty to refrain from improper methods calculated

Page 2919

 1     to produce a wrongful conviction as it is to use legitimate means to

 2     bring about a just one.

 3             That's a quote from a case in the United States a Supreme Court

 4     case called Burger v. United States.  It is a quote which certainly

 5     recognises and articulates the duty of a prosecutor, particularly in a

 6     criminal trial.

 7             But lest there be any doubt that that standard is perhaps too

 8     high, promulgated here in the International Criminal Tribunal for the

 9     former Yugoslavia, Prosecutor's regulation number 2 since 1999, standards

10     of professional conduct for Prosecution counsel, 2, section 2(e).

11             In the conduct of investigations, in the conduct of trial,

12     pre-trial, trial, and appellate proceedings, Prosecution counsel will

13     adopt the highest standards of professional conduct.  A prosecutor

14     expects them consistent always with the letter and spirit of the relevant

15     Statute and Rules of Procedure and Evidence:

16              "(e) to demonstrate respect and candour before the Tribunal, and

17     not to knowingly make an incorrect statement of material fact to the

18     Tribunal, or offer evidence which Prosecution counsel knows to be

19     incorrect or false - should Prosecution counsel become aware that a

20     statement made to the Tribunal is incorrect, or that evidence presented

21     to the Tribunal is false, he or she shall take all the necessary steps to

22     inform the Tribunal as soon as possible."

23             It has been recognised that intentionally misstating the evidence

24     or misleading the fact-finder regarding permissible inferences to be

25     drawn, which in this case is central to the Prosecution's theory that you

Page 2920

 1     draw a series of inferences that such behaviour is misconduct.  How you

 2     choose to deal with that directly reflects on how you choose to view the

 3     evidence that has been presented to you, and, thus far, it is clear that

 4     you have received evidence from the Prosecutor which came about through

 5     bribery, through blackmail, through torture, and there have been

 6     misstatements.  And let's start with the issue of misstatements, and

 7     specifically as it relates to Idriz Balaj.

 8             Paragraph 18 of their brief:

 9             "It was like a secret, a public secret, everything which happened

10     in Dukagjin if it was not proved then everybody said this was done by

11     Togeri (that is what we heard, and that was how it was -- and that was

12     how it happened.  Everything bad that happened, it was attributed to the

13     Togeri."

14             Well, if that was in fact what the gentleman had said, pretty

15     problematic statement and a troublesome one, but that's not the full

16     quote.  The brackets were left out.  The information that was contained

17     in those brackets were left out and I will read it again:

18              "It was like a secret, a public secret, everything which

19     happened in Dukagjin if it was not proved then everybody said that this

20     was done by Togeri.  However, this is only hearsay and there is nothing

21     confirmed.  This is what we heard and that was how it happened.

22     Everything bad that happened it was attributed to the Togeri."

23             That's a very different statement.

24             And there's something else which was said in that same context:

25             "I'd like to say something else, that Toger was not somebody

Page 2921

 1     known to the population.  He came to assist in the war so people mention

 2     his name."

 3             In the remarks yesterday and also cited in the brief, I believe

 4     it's in their brief at paragraph 46, footnote 156, this is concerning

 5     testimony from John Crosland, it's used as a quote to establish that the

 6     KLA were involved in the murder of six Albanians deemed Serb

 7     sympathisers.  And Mr. Crosland did, in fact, say that, but he went on to

 8     say the following, and this is another example of which there are many.

 9     The brief is legion with these examples, the following, and asked a

10     question - this is P9 at page 1882-  concerning the same issue:

11              "Q.  Did you see the bodies yourself?

12              "A.  We did see the bodies but there was really no conclusive

13     evidence as to how they came there and who had shot them and who had shot

14     whom.  This is all part of, I said, the fluid situation that prevailed

15     throughout 1998 and 1999."

16             Now, if the testimony that was received in this trial was that

17     the witness didn't know how the bodies got there, didn't know who had

18     shot them, do you think it's misleading for it to be suggested to you

19     that that testimony, that that gentleman's testimony stood for the

20     proposition that KLA killed people because they were Serb sympathisers,

21     because that's what you're being asked to infer, and that's an important

22     inference here for the Prosecution.

23             But it's worse than that, actually, for a moment in dealing with

24     the issue of Serb sympathisers, specifically in dealing with the issue of

25     Idriz Balaj who -- who is claimed to have targeted collaborators and

Page 2922

 1     sympathisers.

 2             P53.  Cufe Krasniqi discussing specifically the issue of a

 3     collaborator:

 4             "Q. He received permission from Ramush Haradinaj and Togeri.  Is

 5     that accurate?"

 6             Starting at page 5840:

 7             "A.  Well, we're talking about Sali Shkreli now who was a

 8     collaborator of the Serbs, together with his family, and he was

 9     interrogated.  After the police withdrew from Gallapek station, Sali

10     expressed his wish to become a member of the KLA to protect his own

11     village.  He came and said that.  Ramush, Toger, and whoever else was

12     with him, they had said that he was free to move in the area.  I did not

13     see that paper.  He told me that he'd been left free to move around in

14     the area.  Soldiers also told me he'd been given permission to move

15     freely; however, who gave him that permission, I don't know.

16             "Q.  But the information you've given us was that he was given

17     permission to move around the area by Ramush Haradinaj and Togeri;

18     correct?

19             "A.  Yes, correct ..."

20             And then he goes on.

21             This is not the picture that has been painted of Idriz Balaj.

22     This is not the evidence that has been argued by the prosecution

23     concerning Toger, a man who in the face of knowledge of a collaborator

24     which as far as Mr. Rogers has posited means a death sentence gave him

25     permission to move in an area and to be free.

Page 2923

 1             What it's inference to be drawn?  Now, there's an inference to be

 2     drawn and we're dealing with the issue of circumstantial evidence.  I

 3     think we all know the answer.  The conclusion to be drawn from

 4     circumstantial evidence has to be if it's for guilt the only conclusion

 5     that's available.  Here you have affirmative, undisputed evidence that

 6     suggests an analysis entirely distinct from that which has been offered.

 7             "I always thought it better to doubt before I decide then to

 8     expose myself to the misery after I had decided of doubting whether I had

 9     decided rightly and justly."

10             It's a quote from Lord Eldon discussing the issue of reason

11     doubt.  And in defining reasonable doubt which --

12             JUDGE MOLOTO:  May I interrupt you?

13             MR. GUY-SMITH:  Yes.

14             JUDGE MOLOTO:  You're obviously going into a slightly new topic.

15             MR. GUY-SMITH:  I'm stopping right now, Your Honour.

16             JUDGE MOLOTO:  Thank you so much for your kindness.  We'll take a

17     break and come back at half past 12.00.  Court adjourned.

18                           --- Recess taken at 12.00 p.m.

19                           --- On resuming at 12.30 p.m.

20             JUDGE MOLOTO:  Mr. Guy-Smith.

21             MR. EMMERSON:  Just before Mr. Guy-Smith goes on, Your Honour.  I

22     am with my -- with Mr. Haradinaj's concent I have to absent myself for

23     the remainder of this session for official reasons.  I have official

24     duties that I need to attend to later on today, so I simply wanted to

25     mention that to Your Honours so you didn't consider my absence as a

Page 2924

 1     discourtesy in any way.  Mr. Dixon, of course, will deal with any issues

 2     that may arise.

 3             JUDGE MOLOTO:  Thank you, Mr. Emmerson.  You had mentioned this

 4     before the closing arguments began.

 5             MR. EMMERSON:  Thank you very much.

 6             JUDGE MOLOTO:  Thank you so much.

 7             Mr. Guy-Smith.

 8             MR. GUY-SMITH:  Safe travel.

 9             We were embarking on a discussion, brief, of reasonable doubt,

10     and I think the Court spent a moment with what is reasonable doubt

11     because of the type and quality of evidence that has been presented to

12     you during this trial.  And I appreciate, of course, that Your Honours

13     are well familiar with not only the concept but the importance of that

14     concept in a criminal trial, so I don't wish to offend, and I won't spend

15     a long time on it.

16             It's been suggested and I think it's a fair consideration that it

17     is such a doubt as in serious affairs that concern you, you would heed.

18     That is such a doubt as would cause reasonable men and women to hesitate

19     to act upon it in matters of importance.  It is a doubt that is honestly

20     entertained and reasonable in light of the evidence after a fair

21     comparison and careful examination of the entirety of the evidence

22     presented to you.  Proof beyond a reasonable doubt which always rests

23     with the Prosecution is a proof that precludes every reasonable

24     hypothesis except guilt and is inconsistent with any other rational

25     conclusion.

Page 2925

 1             That burden of proof that attaches itself to the concept of

 2     reason doubt which belongs to the Prosecution throughout the trial and

 3     never shifts to the accused.  And that's important because on occasion,

 4     as Artful Dodger picked the pocket of those on the street, some of the

 5     argument that we've heard thus far from the Prosecution begins to creep

 6     into a suggestion that we are required to prove that we are not guilty.

 7             Concomitant with the notion of reasonable doubt is another matter

 8     which is important, and that's what we call even-handedness.  It is a

 9     principle that exists in every jurisdiction, and that is that justice

10     must not only be done but seen to be done.  And that's of particular

11     importance in this case.  It's particularly important in the context of

12     where we stand and has been -- has been mentioned earlier.  We share the

13     view that this Chamber has bent over backwards and has accommodated each

14     and every request made by the Prosecution to ensure that they receive a

15     fair trial.

16             Now, depending on what jurisdiction you come from, there are

17     arguments about whether or not that's something that the Prosecution is

18     entitled to or not, but that's a matter for an academic discussion as

19     opposed to a discussion here today.  But with regard to the issue of

20     ensuring that seeing that justice is done, that's one of the issues that

21     is significant in this case, and I think it poses one of the biggest

22     difficulties here.  And I'm discussing the issue now in the context of

23     reasonable doubt and in the context of the burden of proof, a category

24     which I would re-term reliability; that is, the reliability of the

25     material upon which you are to pass judgement in order to come to

Page 2926

 1     conclusions about guilt according to the necessary standards of proof.

 2             Now, if the standard of proof is going to mean anything in this

 3     case, namely, as I've already suggested, that beyond a reasonable doubt,

 4     it has to be borne in mind that the verdict to be returned is predicated

 5     on how reliable is the material that you've been provided with, because a

 6     verdict which is -- if it's to be one of guilt, has to be on a sure

 7     foundation, because if it's anything less than a sure foundation, in fact

 8     the fundamental aspect of a criminal trial is not achieved.

 9              And in the category of reliability in this case, there is a

10     duplicity in the way the case itself has been approached, and in a way in

11     which the materials have been garnered and culled to put before you.

12     You're the fact-finders now.  How high is our tolerance for the

13     likelihood of a wrongful conviction.  A conviction is unsafe as if it's

14     established the fact finder was mislead on a relevant issue.  I want to

15     take a moment here, because I'll introduce Witness, as he's been called,

16     X for a moment.  I'll return to him later, but it's been said that the

17     truth to an unscrupulous witness may only be that which is consistent

18     with the Prosecution's theory of the case.

19             Let there be no doubt that with regard to Witness X, it is our

20     submission that he is either a liar or mentally disturbed, and his

21     evidence is not reliable.

22             The question has been asked by Your Honour which is when did they

23     arrive in Jabllanice, referring to the allegations contained in Count 1.

24     Let me pose a question to Your Honour:  I suggest to you the question is:

25     Were they ever at Jabllanice?  I will return to that, and I will spend

Page 2927

 1     some time with that.

 2             But the importance for the moment is a concept here, and I'm

 3     going to now read from the first trial judgement, and I assure that you

 4     will adopt the exact same general cautions.  This is paragraph 14:

 5              "On several occasions, only one witness gave evidence of an

 6     incident with which the accused were charged.  The Appeals Chamber has

 7     held the testimony of a single witness on a material fact does not as a

 8     matter of law require corroboration."

 9             JUDGE MOLOTO:  I'm sorry, Mr. Guy-Smith.  Paragraph 14 of what?

10             MR. GUY-SMITH:  Of the trial judgement in the original trial:

11             "On these occasions, the Trial Chamber exercise particular

12     caution considering all circumstances relevant to the testimony of the

13     witness, including any possible underlying motives for the witness's

14     testimony and other factors mentioned."

15             It was another caution that was given, and it's at paragraph 121:

16             "The Trial Chamber has heard much evidence about the tense

17     situation in Kosovo from long before the indictment period, with the

18     Serbian authorities and the Serbian minority in Kosovo, on the one hand,

19     and Kosovar Albanians, on the other, as adversaries.  This situation

20     calls for caution when determining the authorship of violence against

21     victims of a certain ethnicity or affiliation.  Lacking evidence to the

22     contrary, the Trial Chamber allows for the possibility that animosity

23     among the factions may have caused individuals belonging to one faction

24     to act violently against individuals belonging to the other out of

25     personal anger rather than an in a structured --"

Page 2928

 1             JUDGE MOLOTO:  Slow down.

 2             MR. GUY-SMITH:  Thank you, Your Honour.

 3             " -- or organised manner."

 4             The predicate, of course, for the Prosecution's position is that

 5     there was a purpose, there was a structure in an organised manner which

 6     these crimes occurred.

 7             I'm going to take a moment now and go back to the assertions that

 8     have been made by the Prosecution in their brief.  Paragraph 18,

 9     footnote 58:

10             "Tetaj heard that members of Balaj's Black Eagles who wanted to

11     leave the unit or who were expelled from the unit were executed to

12     prevent them from discussing the criminal activities in which the unit

13     had engaged."

14             Tetaj did hear this, but his testimony again is a bit more

15     expansive, because he said that the person who told him this, a gentleman

16     by the name of Astrit Berisha, tried to justify his departure from the

17     war zone, the fact that he had left the area, and it caused him concern

18     in terms of believing whether or not the assertion was made, was a true

19     one.

20             Now, one of the major themes in the brief and also in the

21     argument of yesterday by Mr. Rogers concerned the issue of the fearsome

22     reputation of Idriz Balaj and the Black Eagles.  It's again paragraph 18.

23     Tetaj testified that Balaj's -- that Balaj and his Black Eagles were

24     known for their brutality.

25             This will take a bit more time, but this is the entirety of that

Page 2929

 1     discussion, starting at page 3676, P75:

 2              "A.  Look," this is an answer, "I must explain something else.

 3     Before Togeri there was another person, Uku -- Uka, he was before Togeri,

 4     and he left.  Togeri came a bit later, and when you ask me about who was

 5     in -- interrogated me there was another person by the name of Uka, and

 6     there are many things which we -- was involved in and they are now

 7     attributed to Togeri."

 8             Now, we know who Uka is.  That's Pjeter Shala, the man in black

 9     with the sword.

10             "Q.  Were Toger and his men known for their brutality?

11             "A.  He was more dynamic.  Togeri was described as such at the

12     time.  Everything that was happening, the worst things that were

13     happening there, they were attributed to Togeri, although he may not have

14     been at the site.  So there is nothing specific which I've seen with my

15     own eyes.  So I'm asking both Your Honours and the Prosecution to ask me

16     about things which I have seen with my own eyes.

17              "JUDGE ORIE:  Could you tell us -- you said Togeri was described

18     as such.  Could you tell us by whom?

19              "THE WITNESS: [Interpretation] In all villages, rumours were

20     spread that it was Togeri who was the source of this and that.  But I

21     cannot confirm anything because I haven't seen anything like that.  It

22     was being commented on like that, but as to the reality I don't know.

23     It's true that he was more dynamic, and he was more serious in his tone,

24     and that's probably why people reached that conclusion.  There was a lot

25     of rumours going around that he did this and he did that, but I have not

Page 2930

 1     seen anything and do not know exactly anything of the sort, so I cannot

 2     confirm it.

 3              "JUDGE ORIE:  You said he was more dynamic.  Could you tell us

 4     exactly what you mean by that?

 5              "THE WITNESS: [Interpretation] He was more enthusiastic.  He was

 6     cool, but he was, by nature and his looks, like that.  The image that

 7     people were talking about, it was something which they had created in

 8     their heads.  I don't know how."

 9             I'd like to ask you about one last matter and that was the last

10     thing I talked to you about a moment ago, that being the issue of

11     Astrit Berisha, which is:

12             "... yesterday," this is once again Judge Orie, "you confirmed in

13     speaking to Mr. Re that you spoke with the young man in Tirana by the

14     name of Astrit Berisha.

15             "THE WITNESS: [Interpretation] Yes ... yesterday I mentioned.

16             "JUDGE ORIE:  You explained to us that Astrit Berisha was

17     attempting to justify why he was not in Kosovo fighting, if I understood

18     your testimony correctly.

19             "THE WITNESS: [Interpretation] Yes, that's true.

20             "JUDGE ORIE:  You confirmed that Astrit Berisha told you that

21     Toger killed every member of his unit that wanted to leave.  That's what

22     Astrit Berisha told you.

23             "THE WITNESS [Interpretation] As far as the withdrawal of FARK

24     from Kosova is concerned, when this happened, the people's hopes

25     diminished.  Therefore, Toger's units and the other units which remained

Page 2931

 1     in Dukagjin Plain were weakened, much weakened.  They also had a lower

 2     morale.  So the people who withdrew, they can confirm that he tried to

 3     justify why he withdrew, and I didn't think what he said was true,

 4     because if somebody comes to help me, if somebody comes to support me, I

 5     will try to do anything to ensure that everybody becomes Black Eagle.  So

 6     he could not kill anybody.  This is illogical.  So I could say that he

 7     knew that I was an officer, I had participated.  So he talked to me

 8     simply because he was weak.

 9             Question by the Judge again:

10             "When you were talking to the investigator of the Prosecutor

11     about what Astrit Berisha told you, did you explain to them at that time

12     he was trying to justify the reasons he fled the conflict?

13              "THE WITNESS: [Interpretation]  I don't remember.  Also, they

14     didn't insist on asking me this.  They asked me simply what I heard and

15     with whom I had contacts.  So then one question after another, I came to

16     that, what I said."

17             And that's page 75 at page 3813.

18             Now, yesterday you were told not to believe Ylber Haskaj because

19     Ylber Haskaj was a friend of Idriz Balaj's.  Ylber Haskaj is loyal to

20     Idriz Balaj and telephoned him when he was in The Hague, but I'd like for

21     the Prosecution to answer this question or for you to consider it, what

22     is not to be believed from Ylber Haskaj?

23             P40, Ylber Haskaj's statement introduced by the Prosecution.

24     Paragraph 8:

25              "In the summer of 1998 while I severed with the Black Eagles

Page 2932

 1     unit Shemsedin Cekaj arrived in KLA, in my village Irzniq.  I'm not sure

 2     of the exact day -- date or his position."

 3             9:

 4             "I came to join the Black Eagles because I heard a special elite

 5     group was being formed.  I was very interested in joining this unit.

 6             10:

 7             "I joined the Black Eagles on the first day that it was formed.

 8     As far as I can remember, the Black Eagles were formed on 14 May 1998.  A

 9     gathering was organised in Irzniq where people were invited to join the

10     special unit.  A lot of people responded to the invitation.

11     Approximately 500 people attended this first meeting.  It was held in a

12     field close to my house in the centre of Irzniq.  Because it was dark, I

13     could not see or recognise the person who led this meeting so I'm not

14     sure who it was.  Of the group of 500 people who turned up at the initial

15     meeting, about 120 actually joined the Black Eagles.  I remained a member

16     of the Black Eagles from the date of its inception, that being May 14th,

17     until roughly the end of July.  The number of Black Eagles members

18     declined after the first few days, and from then on there were about 35

19     members.  There was no deputy commander or unit commander, as far as I

20     know.  Balaj was the only commander.  He was the commander of the

21     Black Eagles from the outset."

22             Is this what you're not supposed to believe?  Is this what you're

23     supposed to discount?  Or is that what you're supposed to discount,

24     paragraph 12:

25              "The purpose of the formation of the unit was to have a rapid

Page 2933

 1     reaction force that would be as highly trained as possible and be ready

 2     for any occasion, be it carry out combat activities or help the civilian

 3     population.  Although we were based in Glodjan, the unit was intended to

 4     operate all over the Dukagjin Operational Zone.  In practice, the unit

 5     operated mostly in and around the Decan municipality area."

 6             Perhaps it's 14 that we're not supposed to believe:

 7             "As I noted before, the training of the Black Eagles was very

 8     intensive, so a lot of people gave up."

 9              "I was in good physical condition as I was doing a lot of sports

10     in my youth and I was very skilled in karate.

11             Maybe it's 15 we're not supposed to believe:

12             "Our assignments were given to us orally by Idriz Balaj.  Also,

13     whenever a single gun is fired in the Decan municipality, you could hear

14     it.  Therefore, if we heard that Serbian forces attacked the village, we

15     would go there to try to defend it."

16             Is it 19 that we're not to believe?

17             "We had a different uniform than the rest of the KLA.  It was a

18     black uniform.  I was supplied with a special uniform and a weapon at the

19     Black Eagles headquarter a few days after joining the unit.  It was a

20     rifle with telescopic sights like a sniper rifle.  I was trained in the

21     house of that weapon.  At times I was also issued with an automatic

22     weapon or .22.  When I left the Black Eagles in the end of July I was

23     very demoralised.  Our unit had for some time been assigned to the

24     villages of Voksh," which, if you recall, is zone 5 on the other side of

25     the road of the map that you saw earlier today, "Slup, and Drenoc."  It

Page 2934

 1     goes on.  He goes on and discusses the death of one of his comrades.

 2             He was wounded.  He says in paragraph 23:

 3             "After my wound had healed and the Black Eagles had returned from

 4     the battle-field in the Voksh area, I told commander Balaj that I wanted

 5     to leave the unit.  I told him I did not feel well since the loss of my

 6     cousin and other comrades.  I had been very close with my cousin,

 7     halting, and I felt his loss deeply.  Balaj accepted my decision."

 8             Didn't kill Ylber Haskaj, did he?  A young man wounded and

 9     demoralised because of the loss of a family member goes to his commander

10     in difficult circumstances.  A special unit, a small unit, a highly

11     trained unit, a necessary unit, and he asks permission to leave, and he's

12     granted such permission.  Is that what we're not supposed to believe?

13             Or perhaps what we're not supposed to believe most importantly in

14     terms of the assertion made that Balaj executed all of the Black Eagle

15     members is paragraph 36.  Investigator Ole Lehtinen has read out to me a

16     list of former Black Eagles and I'm asked to comment on the ones I know.

17     I won't read you each and every name, but it starts with the letter A and

18     ends with the letter T.

19             The assertion made in the brief, the assertion made concerning

20     Mr. Balaj's brutality and fearsome reputation at best is suspect from

21     that evidence, evidence presented to you by the Prosecution, Prosecution

22     exhibit.

23             Now, during examination of Ylber Haskaj, he was asked the

24     following questions and he gave the following answers.  This is page

25     10336:

Page 2935

 1             "Q.  Mr. Haskaj, you spent a relatively short period of time in

 2     training before you went to battle in Voksh; correct?

 3             "A.  Yes.

 4             "Q.  It was, in fact, a matter of days before the pressure of the

 5     attacks were such that you and members of the Black Eagles, including

 6     Mr. Balaj, went to Voksh to perform your duties as a special intervention

 7     unit; correct?

 8             "A.  Yes.

 9             "Q.  When you got to Voksh, you remained in that area - by that I

10     mean Voksh, Drenoc, and Slup, those particular villages - because that is

11     where the fights were occurring and where you were needed in order to

12     battle; correct?

13             "A.  Yes.

14             "Q.  You didn't come back to the area of Irzniq ..."

15             And I, once again, recalling P78 which you saw earlier today,

16     Irzniq is close to Glodjan, which is subzone 1.  Now, Drenica is over

17     here:

18             "Q. ... until sometime in July after you were wounded; true?

19             "A.  I only went there once.

20             "Q.  During the period of time that you were fighting in Voksh,

21     Drenoc, and Slup in June throughout July, except for the one time that

22     you said that you returned on one occasion, your commander, Idriz Balaj,

23     was there also fighting with you, wasn't he?

24             "A.  Yes.

25             "Q.  After you stopped fight with the Black Eagles," this is

Page 2936

 1     10338 "you then returned to working with the village guard ... back in

 2     Irzniq.

 3             "A.  Yes.

 4             "Q.  And were you under the command of Shemsedin Cekaj?

 5             "A.  Yes.  I know that he had returned to the village a little

 6     earlier.

 7             "Q.  The Black Eagles were still -- after your return, they were

 8     still out in the field, to your knowledge, were they not, engaged in

 9     fighting in various battles that were occurring throughout the region;

10     true?

11             "A.  Yes.

12             "Q.  And, as a matter of fact, as a unit the Black Eagles were

13     moving in and out of the area after your return in July whatever --

14     wherever their abilities and services were needed depending on the

15     battles that were occurring from July until certainly the September

16     offensive ...

17             "A.  Yes.

18             "Q.  Now, you indicated in your statement there was no deputy

19     commander or sub-commander," the thing that we've read earlier -- that I

20     read earlier to you, and "...Toger, was the one who ran the unit ..."

21             "A.  Yes.

22             "Q.  He was -- and I'm using kind of a term of art here.  He was

23     the first in battle and the last out of battle.  He was a man who stayed

24     with his soldiers and did not shirk from the responsibility of fight, did

25     he?

Page 2937

 1             "A.  That's true."

 2             What of this are you not to believe, predicated upon, if nothing

 3     else, the film you saw yesterday of the battles?  But to be sure, he is

 4     not the only one who has recognised what the Black Eagles and Toger,

 5     Idriz Balaj, were engaged in.

 6             This is from the testimony of Rrustem Tetaj, starting at

 7     page 3807:

 8             "Q. ... you've told us that Togeri was the head of the

 9     Black Eagles which was a group of young men somewhere between 25 and

10     30 ...

11             "A.  Yes.

12             "Q.  And you've told us that as you know, he was involved in

13     actions - and by 'he' I mean his unit - was involved in actions, that's

14     battles with the Serbs in a number of different villages; right?

15             "A.  Yes, I agree with the numbers you mentioned and they were

16     volunteers who were very daring young people, and they were volunteers

17     who joined Togeri completing this task.

18             "Q.  ... had on black clothes?

19             "A.  They were wearing the black clothing, better to say, so that

20     they could distinguish themselves from the rest.  They had an insignia of

21     KLA on those clothes.

22             Q.  ... if you could tell us ... whether I'm corrected when

23     mentioning the following areas that these are places where the

24     Black Eagles were involved in battles during the summer of 1998.  Voksh?

25             "A.  Yes.

Page 2938

 1             "Q.  Baballoq?

 2             "A.  Yes.

 3             "Q.  Prilep?

 4             "A.  Yes.

 5             "Q.  Gramaqel?

 6             "A.  Yes.

 7             "Q.  Shaptej?

 8             I'm not sure about Shaptej:

 9             "Q.  Rastacive?

10             "A.  ... yes.

11             "Q.  Junik?

12             "A.  Yes.

13             "Q.  Carrabreg?

14             "A.  Carrabreg, yes.

15             Sllup?

16             "A. Sllup, Lloqan, Voksh, they are" all "close to each other."

17             "Q.  Glodjan?

18             "A.  ... they couldn't.

19             "There were other forces there."

20             They didn't need them to be reinforced in Glodjan.

21             "Q.  Loxha?

22             "A.  Loxhe, you are talking about Loxhe, yes."

23             "Q.  You earlier mentioned that the Black Eagles was comprised of

24     a group of daring young men ...

25             "A.  ... it was a very small unit compared to the region and a

Page 2939

 1     very, very small group was engaged in the actions, not the whole group.

 2     The daring people, the voluntary people who took part here simply did not

 3     want to carry black uniforms and carry attack on one another.

 4             "Q.  And the Black Eagles' responsibility was to come in, and

 5     among other things, reinforce the villages when Serbs were attacking;

 6     right?

 7             "A.  Yes.  That was its responsibility.  In any case of Serbian

 8     action it's presence was a cause for pride for the people to see that the

 9     unit was there.  So they -- the group gave its support.  So if there was

10     attack -- an attack against a village like Carrabreg, Laushe [sic],

11     Prilep, people also -- people always wanted to have the assistance,

12     support of the Black Eagles.  It was moral support.  The establishment of

13     this unit was an act of moral support.

14             "Q.  Apart from being moral support, it was actually, in fact,

15     true military support because these young men, Toger's unit, had weapons

16     and training that allowed them to effectively fight against the Serb

17     forces?

18             "A.  I don't deny this; it's true."

19             Now, one of the things I talked to you briefly about earlier was

20     the fact that Idriz was not from the area, so as the head of this special

21     unit, a unit that was engaged in heavy fighting, a stranger, there were

22     certain difficulties, potentially.

23             "Q.  Idriz Balaj was not from the area, was he?

24             "A.  I would like to declare openly, I had contacts with Idriz

25     but I never knew him as Idriz Balaj.  He can confirm it himself.  I knew

Page 2940

 1     him as Toger and I knew that he did not come from that region.  People

 2     did not know him in that region and he also did not know the people of

 3     the surrounding villages ...

 4             "Q.  Very well ... the man that you knew as Toger not coming from

 5     the area, this constituted something of a double-edged sword for him,

 6     didn't it?  And by that I mean he was doing good work, as you've just

 7     told us; his unit was supporting and helping people, as you've told us,

 8     but he was a stranger in the area in which you come from where there are

 9     few strangers?

10             "A.  That's true.  That's true.  He came there.  He came to

11     defend the villages and the population of that region.  And I'd like to

12     thank him for doing that, and possibly also the name of -- he gave moral

13     support to the people, and in fact it was the hope that kept Togeri's

14     unit and the people keeping on.  People felt more secure when they were

15     under attack from the Serb forces.

16             "Q. Part of the reality at the same time, however, was if a there

17     was an effective defence there would have been a greater response by the

18     Serbian army, wouldn't there?  It would come in with more guns, soldiers,

19     more tanks?

20             "A.  Yes, yes.  Surely ... our forces grew in number, and as they

21     grew in number and technique, also the Serbian forces grew in number.

22             "So the reality on the ground was that when Toger and the

23     Black Eagles were present there was fighting, there was death and there

24     was defence.

25             His answer:

Page 2941

 1             "I would have put it differently.  The Serbian forces continued

 2     less if the Black Eagles units were engaged.  The action was shorter.

 3     Whether there is death or other casualties, nobody could really guess

 4     what could have happened.

 5             "In the action he took part, not only Toger, but also other

 6     soldiers.  Nobody thought that he would come back alive.  That's how I

 7     would ...put it."

 8             That paints somewhat of a different picture.  That's evidence it

 9     was artfully left out of the Prosecution's presentation, because it

10     doesn't fit with their theory.

11             In paragraph 49, footnote 171, the Prosecution asserts that the

12     victims of the KLA included Serbs as well as ethnic Montenegrins who like

13     the Serbs were considered KLA enemies.  The first exhibit cited to refers

14     to Siptar extremists, not the KLA.  That's P149.  The second exhibit

15     referred to, P442, the diary of a particular individual at page 6 does

16     not say anything about the KLA, discusses how people were fleeing their

17     villages, including some Albanians.

18             The next exhibit, P135, does not support the notion of the KLA

19     enemies as asserted.

20             And the last exhibit is Zoran Stijovic's statement, P121, which

21     includes in it paragraph 22, which is in Annex 24, which is not evidence

22     in this trial.

23             Now, if you believe according to Mr. Rogers that Witness X is

24     telling the truth, according to Mr. Rogers, then you would of necessity

25     convict Idriz Balaj of Count 1 and Count 6.

Page 2942

 1             Before we get to the issue of whether he is telling the truth,

 2     let us ask ourselves whether or not he has presented himself as a

 3     reliable witness.  Is he the type of witness who you would rely upon in

 4     conducting your most important affairs.  And for the moment, let's forget

 5     about the criminal charges against Mr. Balaj and view it in an entirely

 6     different fashion.

 7             There was testimony that he met with the then president of Kosovo

 8     every Friday.  As a matter of fact, more often than Friday.

 9             He travelled from his home some 80 kilometres through a number of

10     Serbian check-points to meet with President Rugova.  Do you believe that?

11     Is that credible?  If the issue that you had to decide in this case

12     concerned that testimony, would you believe him?  I think not.

13             He testified that the reason that he was having - and I'll put a

14     euphemistic term - difficulties with the KLA was because he was going to

15     build a stronger army.  Curious proposition.  Believe it?  Can we rely on

16     him?

17             Mr. Rogers takes the position that we should excuse his failure

18     to be precise, his confused, convoluted, or difficult descriptions about

19     when things happened and when things happened because of -- where things

20     happened and when things happened because of the passage of time.  So

21     much time had passed.  Okay?  Fourteen years, if I'm not mistaken.

22             This document is under seal concerning information given in 2002,

23     so I assume that we should go into private session.

24             JUDGE MOLOTO:  May the Chamber please move into private session.

25             MR. GUY-SMITH:  This is D2 --


Page 2943

 1             JUDGE MOLOTO:  Just a second.

 2                           [Private session]

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Page 2944











11 Page 2944 redacted. Private session.















Page 2945

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5                           [Open session]

 6             THE REGISTRAR:  Your Honours, we're in open session.

 7             JUDGE MOLOTO:  Thank you so much, Mr. Registrar.

 8             Yes, Mr. Guy-Smith.

 9             MR. GUY-SMITH:  The critical point being made here is that

10     in 2002 there were discussions about the subject matter.  That's what the

11     critical point is.

12             JUDGE MOLOTO:  Let me understand.  You're not saying what you

13     just read is true.  What you're saying, it was recorded in 2002.  It is

14     different from what is being put in evidence.

15             MR. GUY-SMITH:  Thank you very much.  And you -- that's exactly

16     what I'm saying.  And you as the fact-finders, the Judges of whether or

17     not this individual's testimony is reliable is something you can

18     consider, and it certainly militates against the notion that this vast

19     passage of time excuses the suggestion that he was inaccurate.

20             But more -- not even more importantly, and in addition to, you

21     recall Mr. Rogers accepted, conceded, the point that he had said in 2006,

22     with regard to the issue of these three men, that he had heard, heard,

23     they were kidnapped.  Not saw, not experienced, not involved with, but

24     heard.  Quite distinct from his testimony some six years later.  And

25     hearing and seeing, as we all know, are real different, because when he


Page 2946

 1     claimed in his testimony to have seen, he involved himself in the

 2     incident.  He did this same kind of thing on a number of different

 3     occasions.  This is why I suggest to you that he is either a liar or

 4     mentally unstable, because there is no one to confirm his story

 5     concerning this abduction as it is called, this kidnap as it is called.

 6             The evidence on this point is that on the 19th of May, these

 7     three individuals were -- were seen leaving their village.  They were

 8     seen at the village where this abduction as it is claimed took place, and

 9     they have not been seen ever again but for Witness X's assertion.  There

10     is no one else, no one, who claims that the kidnap, as it is called, or,

11     and most importantly, the incident that occurred in Jabllanice in which

12     it is claimed that Idriz Balaj cut off somebody's ear ever happened.

13             You have to believe Witness 3.  You have to find Witness 3 a

14     reliable witness in order for that to hold any water.

15             And what's curious is considering -- considering the kinds of --

16     of rumours or considering -- I'm sorry.  I said Witness 3 and I meant

17     Witness X.  I apologise.

18             Considering the types of rumours and considering the -- the

19     profound incident itself, doesn't it strike you curious, strange, that no

20     one but Mr. X claims any information about this?  No one.  Excuse me.

21     I'm sorry.  We did hear from another witness.  We did.  I'm sorry.  I

22     apologise.  I don't wish to misspeak.  We know what the quality of that

23     witness's evidence is, and we know what Mr. Rogers' position about that

24     evidence is, and that witness -- he's asked you to discount in its

25     entirety anything that that man said.

Page 2947

 1             Now, it's easy to accuse somebody, and if you make it a

 2     particularly heinous crime and you add on to it a bad reputation, well,

 3     not real hard to make a determination from those two speculative

 4     assertions that the individual accused is guilty.  After all, he's a bad

 5     guy.  That's what's being said to you.  We avoid in it's entirety, doing

 6     to it way, the inconsistencies internal of his testimony.

 7             JUDGE MOLOTO:  Before we -- I forget, it looked like --

 8             MR. GUY-SMITH:  Sorry.  Hold on.  I'm with you.

 9             JUDGE MOLOTO:  Before I forget, it looks like you're going to the

10     next point.  Can I just get -- ask something from you?

11             MR. GUY-SMITH:  Sure.

12             JUDGE MOLOTO:  Page 86, lines -- from line 18, you say but

13     more -- not even more importantly, in addition to, you recall Mr. Rogers

14     accepted, considered the point that he had said in 2006, with regard to

15     the issue of these three men, that he had heard.  Are you able to give us

16     a reference, please?

17             MR. GUY-SMITH:  A reference of --

18             JUDGE MOLOTO:  Of where this is.  For where Mr. Rogers accepted

19     and conceded this.

20             MR. GUY-SMITH:  Yes.

21             JUDGE MOLOTO:  Or where -- or where he's supposed to have said in

22     2006 that he had heard whatever.

23             MR. GUY-SMITH:  Well, there are two -- two different issues.  One

24     is when did the witness testified to it, and I'll get that for you.  I'll

25     give you a transcript reference for that.  And the second is Mr. Rogers

Page 2948

 1     conceded the point yesterday, which if you want, I'll also get you a

 2     transcript reference.

 3             JUDGE MOLOTO:  Okay.  I see he nods his head that he did concede

 4     it yesterday.  Or am I wrong, Mr. Rogers?

 5             MR. ROGERS:  No.  I did say yesterday in the course of my

 6     opening -- my closing, that the witness had said he had heard they had

 7     been taken from the mill but that he had seen them in the place.  And he

 8     said that during the course of his testimony.

 9             JUDGE MOLOTO:  Thank you.

10             MR. GUY-SMITH:  Do you want me to get you a specific reference at

11     this point or ...

12             JUDGE MOLOTO:  If you may, please.  If you have them.  I'll

13     appreciate them.

14             MR. GUY-SMITH:  I'll get it for you.

15             JUDGE MOLOTO:  Thank you, Mr. Guy-Smith.  You may proceed.  I

16     don't want to delay you.

17             MR. GUY-SMITH:  Thank you.  It's page 2597 of the proceedings.

18             JUDGE MOLOTO:  Thank you so much.

19             MR. GUY-SMITH:  Now -- well, 2598 is even more specific, because

20     that's when a question is asked by Judge Moloto:

21             "Did you say that sentence?"

22             And his answer is:

23             "Yes, sir, yes."

24             So ...

25             JUDGE MOLOTO:  Thank you.

Page 2949

 1             MR. GUY-SMITH:  Sure.

 2             In -- in -- we stop in a few minutes, do we not?

 3             JUDGE MOLOTO:  [Microphone not activated]

 4             MR. GUY-SMITH:  Okay.  Yesterday, Mr. Rogers, I think,

 5     misapprehended at least an argument that -- that's been made on behalf of

 6     Mr. Balaj, which is that -- a suggestion of collusion between Witness 3

 7     and X.  So there's no doubt, as far as we're concerned, there was no

 8     collusion between those two people.  What happened was X stole the life

 9     experiences of Witness 3 and said they were his own to give credence to

10     his falsities in the same fashion that X shifted from hearing to seeing.

11     And I will pick up tomorrow with that part of the discussion.

12             JUDGE MOLOTO:  Thank you so much, Mr. Guy-Smith.

13             That brings us to the end of the session for today.  We obviously

14     haven't finished.  We had been set to finish today.  I suspect we can

15     only postpone to tomorrow morning, 9.00.  Same courtroom.

16             MR. GUY-SMITH:  We start tomorrow morning?

17             JUDGE MOLOTO:  Morning, 9.00, same courtroom.  We'll ask that

18     CMSS makes the necessary arrangements.

19             Court adjourned.

20                           --- Whereupon the hearing adjourned at 1.44 p.m.,

21                           to be reconvened on Wednesday, the 27th day

22                           of June, 2012, at 9.00 a.m.