Tribunal Criminal Tribunal for the Former Yugoslavia

Page 7245

1 Monday, 29 August 2005

2 [Prosecution Closing Statement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.18 p.m.

6 JUDGE PARKER: Good afternoon. It's good to see such smiling and

7 familiar faces. We are now to commence final submissions.

8 Mr. Whiting.

9 MR. WHITING: Thank you, Your Honour.

10 May it please Your Honours, I will start our closing with the

11 words of one of the victims in this case, Witness L-06, about a

12 particular moment at Lapusnik. He said: "This Fatmir Limaj came and

13 asked us, he said, You, you, why are you here for? Then he asked me and

14 I said, I don't know. I went to look for my cousin, and they brought me

15 here. I don't know why. He," meaning Fatmir Limaj, "said, If you have

16 something - if you have done something, you will be killed. If you are

17 innocent, you will go home."

18 These words capture much of what was Lapusnik in the summer of

19 1998. It was an arbitrary place, where men were brought on the flimsiest

20 of suspicions, accused of collaboration for no good reason at all or were

21 brought simply because they were Serb men. Recall the testimony of

22 Ramadan Behluli, who even now in this courtroom, accused two men who

23 became victims in Lapusnik of collaboration based on nothing, we submit,

24 nothing at all. Recall the testimony of Ivan and Vojko Bakrac, who

25 described how KLA soldiers boarded their bus in Carraleve and took off

Page 7246

1 all the Serb men. The four men who were taken off the bus ended up in

2 Lapusnik. Two of them were murdered, and two survived -- the only Serbs

3 who survived Lapusnik.

4 Lapusnik was also a place where the prisoners were kept in the

5 dark, both in the literal sense, in their cramped, hot, repulsive little

6 prison rooms, and in the figurative sense in that they were never told

7 why they were being detained and never afforded even the most basic

8 protection and procedures to determine if there was any basis - any basis

9 at all - for their arrest and detention, procedures that we say are the

10 right of every human being in a war.

11 Lapusnik was also a violent and frightening place, where men sat

12 day after day, crushed together, many barely conscious, close to death,

13 not knowing what the next day would bring, and regularly pulled from

14 their rooms to be severely beaten, humiliated, tortured, and in many

15 cases murdered.

16 And finally, Your Honours, Lapusnik was a place that was under

17 the command of Fatmir Limaj. Fatmir Limaj came to the prison, and the

18 prisoners saw - they saw - that this Commander Celiku was in charge. He

19 exercised his authority in the prison on several occasions arbitrarily,

20 imperiously, ordered some of the prisoners released. No substitute, we

21 say, for the proper procedures required by the law. He knew what was

22 happening in that prison; it was under his command. He knew it was

23 wrong, and for that reason the prisoners who were ordered released were

24 also required to promise that they would never speak about the prison or

25 they were required to say that they had been treated properly there.

Page 7247

1 Your Honours, at the beginning of this trial, Mr. Cayley said

2 that: "The essential facts of this case are as straightforward as they

3 are compelling." The evidence has shown just that. The Prosecution

4 submits that the three accused who sit here before you today are guilty,

5 guilty of the crimes that are charged against them in the indictment.

6 The facts have shown, Your Honours, that in May, June, and July

7 of 1998, the Celiku 3 unit was in charge of the area below -- in Lapusnik

8 below the Peja-Prishtine highway, meaning to the south of that road. At

9 its peak, the Celiku 3 unit had well over 70 soldiers and it controlled

10 five fighting positions which looked out over the valley towards the

11 Serbian forces. These fighting positions constituted a KLA front line,

12 protecting a large area under KLA control. From these fighting

13 positions, KLA soldiers also controlled and monitored a KLA roadblock on

14 the Peja-Pristina highway and monitored Serbian forces in Komorane. In

15 the area of Lapusnik controlled by the Celiku 3 unit, in addition to the

16 roadblock and the five fighting positions, there was a headquarters, a

17 medical clinic, a kitchen where the soldiers gathered to eat, and a

18 prison. A prison.

19 At this time, in the summer of 1998 and before, the KLA had, as

20 Mr. Limaj himself has admitted, an express policy targeting Albanians

21 suspected of collaboration. Only no definition was ever provided of what

22 it meant to be a collaborator, and no procedures were ever implemented to

23 investigate or to evaluate allegations of collaboration. As a result,

24 Albanian men who posed no threat, in our submission, to the KLA were

25 arrested and detained. They were arrested for no good reason at all,

Page 7248

1 often because of their mere association with Serbs. No proper procedures

2 were followed, and none of these men were ever given an opportunity to

3 defend themselves. At the same time, it is submitted that the KLA

4 targeted Serb men who were civilians, arresting them at roadblocks,

5 pulling them from buses and cars, and detaining them. This is not to say

6 by any means that these were the primary objectives of the KLA or that

7 the KLA did not have other noble objectives, and it is not to say that

8 all of the members by any means of the KLA were involved in these

9 activities; it is, however, the fact that the targeting of Albanians

10 suspected of collaboration and the targeting of Serb civilian men were

11 indeed features of KLA policy during the summer of 1998.

12 In the area under Fatmir Limaj's control, all of the Albanian and

13 Serb men who were arrested were brought to Lapusnik, where they were

14 detained in a prison in abhorrent conditions which would have been

15 criminal even if the detentions had somehow been justified. The

16 prisoners in Lapusnik were interrogated, beaten, tortured, and in many

17 cases murdered. At the end of July 1998, when the Celiku 3 unit lost

18 control of Lapusnik, the remaining Albanian prisoners - for there were no

19 Serb survivors at this point - were marched into the mountains where half

20 were released and half were murdered.

21 The evidence has shown that the three accused who sit here today

22 played essential roles in the Lapusnik prison. Haradin Bala was a guard

23 in the prison in Lapusnik. He guarded the gates of the compound, locked

24 and unlocked doors, brought food from the kitchen across the road to the

25 prisoners as well as water and cigarettes, and he moved the prisoners

Page 7249

1 around the compound. On a number of occasions he participated in brutal

2 and severe beatings of prisoners and in their murders. He forced

3 prisoners to bury the bodies of other prisoners who had been murdered.

4 When the prison was overrun, Haradin Bala and another guard marched the

5 remaining prisoners into the Berisa Mountains. He met up with Fatmir

6 Limaj along the way and received instructions and a third soldier. He

7 then continued the march and released some of the prisoners. Then he

8 ordered the remaining prisoners to line up and he said: "This is your

9 death sentence." "This is your death sentence." These words from

10 Haradin Bala are the last words that ten of the men in the line ever

11 heard on this earth. After they were spoken, Haradin Bala and two other

12 soldiers fired on the prisoners, killing ten of them.

13 Isak Musliu was the commander of Celiku 3. From the beginning of

14 June he was based at a headquarters located near the clinic, a mere 2 to

15 300 metres away from the prison. He commanded over the fighting

16 positions and over the soldiers who were in charge of each of the

17 fighting positions. Musliu commanded the soldiers during the 29th of May

18 fighting. He was consulted about important matters that arose, for

19 example, at the roadblock. When the United States Ambassador Christopher

20 Hill came to the roadblock at the end of June, it was Isak Musliu who

21 spoke with him for over an hour. Musliu admitted new soldiers into

22 Celiku 3 and he gave permission to soldiers to travel to other areas. He

23 disciplined soldiers. When the medical clinic needed supplies, Dr. Gashi

24 would go to Isak Musliu, and Musliu would arrange for the supplies to be

25 brought.

Page 7250

1 Musliu was also in charge of the prison. He gave orders to

2 guards there. He was present in the prison, and on numerous occasions he

3 participated in brutal beatings, torture, and murder within the prison,

4 frequently wearing a mask, not to protect himself -- not to protect his

5 identity from the Serb forces, which is why most people in the KLA wore

6 masks, but in an extraordinary act of cowardice to try to protect his

7 identity from his victims.

8 Fatmir Limaj was the commander of a larger area around Klecke

9 that included Lapusnik. Celiku 1 was based in Klecke and existed from

10 March or April of 1998. When the KLA seized control of Lapusnik on the

11 9th of May, 1998, it soon became Celiku 3 under Limaj's command. Limaj

12 installed Isak Musliu as the commander of Celiku 3 and told the soldiers

13 that they should go through Isak Musliu for anything they needed and that

14 he, Limaj, was in charge of the larger area. During May, June, and July

15 of 1998, Limaj came to Lapusnik approximately 20 times, which is nearly

16 twice a week. He participated in all the major battles in Lapusnik and

17 was the commander of the soldiers during the 9th of May and the 29th of

18 May fighting. In June and later in September, it was Fatmir Limaj who

19 spoke to the media about the KLA's successes in Lapusnik. He made

20 decisions about the disciplining of soldiers and about who would be in

21 charge of the fighting positions in Lapusnik. He conducted the oath

22 ceremony in Lapusnik and he came with Byslym Zyrapi to Lapusnik to bring

23 a new gun to the front line. He went to the headquarters in Lapusnik and

24 to the kitchen, and he met with Isak Musliu in Lapusnik. He checked on

25 the clinic to see if it was operating properly and if it needed anything.

Page 7251

1 He was in command of the prison, and on several occasions he made

2 decisions about who would be released from the prison. On at least one

3 occasion, he personally insisted that before a prisoner could be released

4 he would have to make a statement swearing not to talk about what

5 happened there at Lapusnik. At the end of July when the prisoners were

6 marched into Berisa, Limaj was consulted about what should happen to them

7 and thereafter half of the prisoners were released and half were

8 murdered.

9 These are the facts, Your Honours, straightforward and

10 compelling. The accused are guilty for directly committing some of the

11 crimes charged in the indictment and for planning or ordering others.

12 They are guilty for participating in a joint criminal enterprise, whether

13 this joint criminal enterprise is conceived as a common plan or as a

14 system of ill-treatment. The purpose of the common plan or system of

15 ill-treatment was to target Albanians suspected of collaboration and Serb

16 civilians for detention, violence, and murder. The crimes charged were

17 either within the scope of the joint criminal enterprise or were clearly

18 foreseeable to the accused. Fatmir Limaj and Isak Musliu are also

19 responsible for failing to prevent or punish the crimes charged in the

20 indictment.

21 In its final brief, submitted on the 20th of July of this year,

22 the Prosecution presented in extensive detail its analysis of the

23 evidence and of the law in this case. It is not our intention, you will

24 be relieved to know, to repeat everything that has been set out in that

25 brief. Rather, the Prosecution will use these oral submissions to focus

Page 7252

1 on particular points that are in dispute and to respond to some, though

2 not all, of the arguments made by the Defence in its final brief. I will

3 start by addressing the roles of the accused. Mr. Black will then

4 address the crimes, and Mr. Nicholls will address the issues of armed

5 conflict and widespread and systematic attack. I will then finish by

6 addressing the issue of sentencing.

7 A few preliminary words about the arguments that have been made

8 by the Defence. In the respectful submission of the Prosecution, the

9 final brief of the Defence is simply replete with errors of fact and

10 analysis. It will not be possible in these closings for the Prosecution

11 to identify all of the errors, though we will identify some.

12 The errors fall into several broad categories. First, the

13 Defence brief cites to numerous documents and statements that are simply

14 not in evidence, and the Prosecution moves to strike these matters from

15 the Defence final brief. Specifically, footnotes 1 through 11, 13 to 14,

16 16 to 23, 25, 28, 259, 470, 958, 1.063, 1.074, 1120, 1184; and paragraph

17 768, 788, and 795 cite to evidence that is simply not in the record and

18 therefore, in our submission, is not properly part of a final brief.

19 Second, the Defence has sought in its final brief to relitigate

20 numerous issues that were briefed, argued, and decided during trial. In

21 the submission of the Prosecution, these issues have been settled and

22 their reconsideration are not properly the subject of a final brief.

23 Third, the Defence brief asserts a number of facts that are

24 simply not supported by the record. For example, in paragraph 619 the

25 Defence asserts that there were many soldiers in the KLA that chose the

Page 7253

1 pseudonym Shala. The claim is not footnoted, and that's no surprise

2 because there is no evidence whatsoever to support this claim in the

3 record. In this, Sylejman Selimi was asked in cross-examination on page

4 2204 of the transcript if he knew of any soldiers with the pseudonym of

5 Shala, and he responded "no."

6 Fourth, on numerous occasions the Defence misstates the record,

7 sometimes getting the evidence exactly wrong. For example, in paragraphs

8 522 and 524, the Defence says that none of the kidnappings in this case

9 occurred in the area that later became the 121 Brigade; that's simply not

10 correct. If you look at Exhibit DL7, which is now being shown on the

11 Sanction, the map on which Fatmir Limaj drew what he says was the area of

12 the 121 Brigade in green and the description of this area that he

13 provides at pages 5966 to 67 of the record, it is clear that this area

14 includes Kroimire, where Hetem Rexhaj was kidnapped; Petrastica, where

15 Witness L-7 was kidnapped; Lapusnik, where Shaban Hoti, L-01, and

16 Miroslav Suljnic were kidnapped; and Carraleve, Carraleve, where numerous

17 Serb and Albanian victims in this case were kidnapped.

18 Fifth, the Defence often makes factual assertions which are

19 extremely misleading. For example, in paragraph 166, the Defence states

20 that: "Witness Ivan Bakrac testified that Genov was beaten with

21 automatic rifles, sharp objects, et cetera, but failed to mention this in

22 his statement to the investigator."

23 Well, in fact, the witness did discuss the beating of Genov in

24 his statement to the investigator; the only thing he did not talk about

25 in his prior statement was the precise weapons used in the beating.

Page 7254












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Page 7255

1 I will not belabour these points with further examples, though

2 there are many, and other examples will be addressed at other points in

3 the closing. I have no doubt that the Chamber will scrutinise carefully

4 all of the legal and factual assertions made by both sides in this case,

5 in both the written filings already submitted and the oral submissions

6 made this week.

7 In the submission of the Prosecution, the evidence establishes

8 beyond all possible doubt that there was in fact a prison, a KLA prison,

9 in Lapusnik and that the prisoners there were subjected to criminal

10 abuse, torture, and murder. It is noteworthy that while the Defence

11 challenged some of the initial victims who testified on whether the camp

12 was in Lapusnik, it eventually gave up on this line of questioning. In

13 the final brief of the Defence, we submit that there is no real challenge

14 to the substantial evidence that the prison was in fact in Lapusnik.

15 After I finish, Mr. Black will address the crimes that occurred in

16 Lapusnik.

17 The question that I will address is the role and responsibility

18 of the three accused for these crimes, beginning with Fatmir Limaj. The

19 Prosecution submits that multiple and independent sources of evidence

20 show that Fatmir Limaj was in fact the commander of a larger area around

21 Klecke, including Lapusnik, and that he was the overall commander of the

22 prison in Lapusnik. There are two groups of witnesses who testify about

23 Limaj's role in Lapusnik: Victims who were inside of the prison walls of

24 Lapusnik and who saw Limaj within the prison and KLA soldiers, and others

25 who were on the outside of the prison and who testify about his command

Page 7256

1 role over Lapusnik.

2 Let's begin with those outside of the prison. Ramiz Qeriqi

3 testified that the area he drew on Prosecution Exhibit 154, which is now

4 up on the Sanction, including Lapusnik, was under the command of Klecke,

5 meaning Fatmir Limaj, from May of 1998 onwards. Qeriqi also provide --

6 provided detailed information about how the unit in Kroimire was

7 organised and how soldiers under Qeriqi's command took orders from him at

8 this time. The Defence contends in paragraph 531 of their brief that

9 there is no evidence that Qeriqi, Luan, was a subordinate of Limaj;

10 that's not true. Qeriqi himself testified that the chain of command ran

11 from Likovc to Klecke, meaning Fatmir Limaj, to Kroimire. Qeriqi said:

12 "From Klecke, every instruction came from Fatmir Limaj."

13 The Defence further contends that the Prosecution credits Ramiz

14 Qeriqi's denial of his own involvement in the criminal activity, but that

15 is simply false. It is frequently the case that witnesses will tell the

16 truth about certain matters but not about others, and will in particular

17 minimise their own role in criminal activity. It would be wrong, we

18 submit, simply to throw out Qeriqi's testimony because it was found, if

19 it was found, that he did not admit to his own culpability in events.

20 The question rather is whether the testimony of Qeriqi about Limaj's

21 command role is corroborated by other evidence, and in fact it is.

22 Ramadan Behluli stated in his interview with the OTP, which is in

23 evidence as Exhibit P121, that by the spring of 1998, Limaj was the

24 commander of the zone in which Kroimire was located. Behluli drew

25 Prosecution Exhibit 119, which is now on the Sanction, which matches the

Page 7257

1 drawing of Qeriqi, and which he described to be the area including

2 Lapusnik under Klecka's control by July 1998. Behluli also corroborated

3 Qeriqi's evidence about how the unit in Kroimire functioned and how he

4 received orders. He also described how Fatmir Limaj came to Kroimire in

5 June of 1998 on the 17th after fighting broke out there and instructed

6 Behluli to attack Serbian fighters without waiting for further orders.

7 In Shukri Buja's OTP interview, Prosecution Exhibit 160, he

8 corroborated both Ramiz Qeriqi and Ramadan Behluli concerning Limaj's

9 role. He explained in detail how Limaj came to be in a command position

10 in Klecke, first over the areas being organised by Qeriqi and Shukri Buja

11 and later over other villages, including Lapusnik and Luznica. Shukri

12 Buja, not the OTP, was the first in the interview to describe Limaj as a

13 commander, stating at page 23 that: "I have always counted him, Fatmir

14 Limaj, as my first commander on this basis."

15 He went on to describe Limaj at another point in the interview as

16 the coordinator of the area around Klecke, but Buja made it clear that

17 Limaj told him what to do. Buja said: "I asked Limaj what we should

18 do." And at another point he said when talking about arrested persons

19 that: "He received instructions there," meaning Klecke, "from Commander

20 Celiku."

21 Buja, for his part, drew Prosecution Exhibit 159, which is up on

22 the Sanction, a diagram of the villages under Limaj's control which

23 included Kroimire, Klecke, and Lapusnik. This diagram corroborates the

24 maps drawn by Qeriqi and Behluli.

25 So what weight should be given to the OTP interviews, which are

Page 7258

1 in evidence, of Ramadan Behluli and Shukri Buja, particularly in light of

2 their testimony in court? For its part, the Defence attempts to revisit

3 this Chamber's decisions declaring both of these witnesses hostile and

4 its decision to admit into evidence, for the truth of the matter, the OTP

5 interviews of these witnesses. These issues were already decided,

6 however, by the Chamber. And so the Defence then proposes, starting at

7 paragraph 79, a series of so-called guiding principles to evaluate the

8 prior interviews of these witnesses. Well, it turns out that these

9 so-called guiding principles are simply a rehash of the same arguments

10 against admitting the statements in the first place, and application of

11 the principles proposed by the Defence would necessarily preclude

12 automatically any reliance whatsoever on the prior statements.

13 The question for the Chamber, in this submission of the

14 Prosecution, is really more simple: On each matter about which Behluli

15 and Buja testified, did they tell the truth in their prior statements or

16 did they tell the truth in court? The Prosecution submits that when all

17 of the circumstances of the prior interviews are considered, along with

18 all of the other evidence in the case, it is clear that with regard to

19 Limaj's command during May, June, and July of 1998, Behluli and Buja were

20 truthful in their prior interviews and were not truthful in court. How

21 otherwise to explain their prior interviews? Could they have been

22 mistaken? No. Both witnesses were very specific and clear about their

23 testimony in the OTP interviews, and it is impossible to believe that

24 they both managed to make the same mistakes about Limaj's command. Did

25 they have reason to lie or exaggerate in their prior interviews? No.

Page 7259

1 Neither witness had a reason to lie about Fatmir Limaj's command, and

2 both witnesses were careful in their answers in the OTP interview. There

3 is no evidence that they exaggerated.

4 The Defence proposes another explanation: That the OTP led these

5 witnesses into their answers; the record, however, proves otherwise. The

6 Chamber has the video record of the Behluli and Buja interviews. It can

7 review their entire interviews from beginning to end and decide for

8 itself. It should be clear that the evidence about Limaj's command came

9 from the witnesses, that the witnesses provided the information

10 voluntarily, and that they carefully qualified their answers and their

11 knowledge.

12 I will not play the interviews now, but I will note a few

13 examples. Ramadan Behluli, at page 21 of his interview, was the first

14 one in the interview even to mention the name "Fatmir Limaj," describing

15 him as the commander of the zone. With respect to Shukri Buja, the

16 Defence contends in paragraph 97 of their brief that the diagram drawn by

17 Shukri Buja, Exhibit 159 which was shown a few moments ago, was dictated

18 by the interviewer. Watch the interview, starting at page 37 of the

19 transcript. Buja by this point in the interview has already described

20 the structure in Kroimire and then he is asked if there are other points

21 like Kroimire that are under the command of Klecke. When he says that

22 there are, he is asked to draw the points under Klecka's command on a

23 diagram. He then draws Kroimire, Petrastica, Luznica, Lapusnik, and

24 others. The only uncertainty he expresses is whether the specific points

25 came into being in May or in June, because the question that is put to

Page 7260

1 him is to draw the points that existed in May. After he draws the

2 diagram he says: "This was approximately the organisation."

3 The diagram was not dictated to the witness; he drew it himself

4 and he provided all of the information in it.

5 The Defence also suggests that Buja had to be asked several times

6 to confirm the structure in Kroimire. Again, look at the interview; it's

7 at page 36. The witness is simply being asked to confirm information

8 about the structure that he has already provided, and he is asked the

9 question several times simply to focus him on the question being asked.

10 Once focussed on the question, he confirmed without difficulty Limaj's

11 command over Kroimire.

12 One additional point raised by the Defence regarding Shukri Buja.

13 In its continual effort to shift the focus on to the Prosecution and put

14 the Prosecution on trial in this case, a tactic that we expect to be

15 repeated in the closing submissions of the Defence, the Defence has

16 suggested in paragraph 150 that the Prosecution has taken contrary

17 positions with respect to Shukri Buja: That he testified in the

18 Milosevic case about the same matters that he testified about in court in

19 this case and was not treated as a hostile witness. Well, this is simply

20 false. As Shukri Buja himself stated in court, he testified in Milosevic

21 about events that occurred in Racak in 1999, a completely different

22 subject.

23 Likewise, the Prosecution has not taken conflicting positions on

24 Dragan Jasovic. In this case, the Prosecution has taken the position

25 that in light of the substantial evidence against Mr. Jasovic that has

Page 7261

1 been admitted into evidence in this case, the Trial Chamber should rely

2 on the testimony of Jasovic, if at all, only on very narrow matters for

3 which there exists substantial corroboration. This position is entirely

4 consistent with the Prosecution's position in Milosevic.

5 The evidence provided by Ramiz Qeriqi, Shukri Buja, and Ramadan

6 Behluli concerning Fatmir Limaj's command during the summer of 1998 is

7 further corroborated by the testimony of Witness L-64, who testified that

8 Limaj was the overall commander over Lapusnik after the 9th of May

9 battle, and who provided specific evidence of the exercise of Limaj's

10 command in Lapusnik. Witness L-64 also drew a diagram of the area under

11 Klecka's command, Exhibit 173 which is up on the Sanction, which included

12 Lapusnik and which is entirely consistent with the maps and diagrams of

13 the other witnesses.

14 The Defence argues that L-64 was induced to give his testimony in

15 exchange for having charges against him dismissed. This argument,

16 however, is rife with inaccurate and misleading assertions. In paragraph

17 125, they suggest that L-64 was summonsed by the OTP as a suspect and

18 that two months later his status had changed to that of a witness. Well

19 in fact, he was informed he was being interviewed as a witness before the

20 start of the very first interview with the OTP in May 2003. In paragraph

21 126, the Defence asserts that L-64 was sitting in jail when he was

22 summonsed by the OTP; this is of course not true. L-64 gave interviews

23 to the OTP in May and June of 2003 before there were any charges against

24 him. And before there were any charges against him, before there could

25 be even a suggestion of an inducement to fabricate anything, L-64 told

Page 7262

1 the OTP in recorded interviews that Limaj was the commander of a larger

2 area, including Lapusnik, in the summer of 1998, that he appointed Isak

3 Musliu to be the commander in Lapusnik, that Musliu was the commander of

4 the soldiers in Lapusnik, that there was a prison in Lapusnik where

5 prisoners were kept in repulsive conditions, and that Haradin Bala was a

6 guard in the prison.

7 The Defence further asserts repeatedly in paragraphs 138, 284,

8 1.026 that L-64 said in his testimony that he did not know anything about

9 the structure of the KLA; well of course this is not at all what he said.

10 He said only that he did not have knowledge of the command of different

11 zones of the KLA in Kosovo. He quite plainly and consistently stated

12 that he knew the command structure in Lapusnik and that he knew the other

13 areas under Limaj's command.

14 At the end of the day the question is whether, even if the Trial

15 Chamber finds that Witness L-64 was not entirely forthcoming with regard

16 to certain matters regarding himself including his drug history, it can

17 nonetheless rely upon his evidence with regard to events in Lapusnik.

18 Although Witness L-64 was the only former KLA member who was willing to

19 come into this courtroom to testify both to the structure of the KLA in

20 Lapusnik and to the existence of the prison there, virtually all of his

21 evidence on both of these issues is corroborated by other evidence. And

22 that, Your Honours, is fully laid out in our final brief. It defies

23 credibility that L-64 could concoct such a story that matches up with so

24 many other independent pieces of evidence.

25 In addition to these witnesses, there is other evidence which is

Page 7263

1 set forth in our final brief that corroborates the evidence of Limaj's

2 command in Lapusnik and the prison there, including the testimony of

3 Witness L-95, who testified that at the time of the fall of Lapusnik in

4 July of 1998, he understood Limaj, based in Klecke, to be in charge of an

5 area that extended up to the Peja-Pristina road, including Lapusnik. And

6 Witness L-96, who testified that while searching for someone who had been

7 kidnapped by the KLA in July of 1998, he learned that Limaj was the

8 commander of the region.

9 This is the evidence of Limaj's command from outside of the

10 prison. What about the the evidence from inside the prison? Virtually

11 all of the victims - L-04, L-06, L-07, L-10, Ivan Bakrac, and by

12 description, we submit, Vojko Bakrac - saw Limaj inside of the prison and

13 observed him to the the commander there. Their descriptions of Limaj and

14 their descriptions of his role are remarkably consistent. In addition,

15 Witness L-96 saw Limaj during the march to Berisa and heard Haradin Bala

16 say that he would ask Commander Celiku what he should do with the

17 prisoners. Remember, these prisoners only saw what they could inside the

18 walls of the prison and as they were leaving Lapusnik. They could not

19 have known what was happening outside of the prison walls in Lapusnik or

20 in the area surrounding Lapusnik. They could not have known in detail

21 the structure of the KLA in the area, and they certainly could not have

22 known that Limaj came to Lapusnik nearly twice a week during June and

23 July of 1998. The fact that the evidence of the prisoners inside the

24 prison is consistent with the evidence from the witnesses outside the

25 prison is powerful evidence of Limaj's role.

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Page 7265

1 In the face of this evidence, the Defence suggests that the

2 victims simply added - simply added - Limaj to their accounts. Well, was

3 this done unintentionally by all of the different victims? If so, it is

4 remarkable, impossible we would say, that all of these various victims

5 could have unconsciously made up the same story. Was it done

6 intentionally? If so, why? The victims are not out to get Fatmir Limaj,

7 and some even credited him for the fact that they survived the prison.

8 Why would they make that up? Also, it is remarkable that if the victims

9 -- that the victims could have concocted a story, consciously or

10 unconsciously, that so matches up with the witnesses from outside the

11 prison.

12 No, these victims did not make up Limaj's command of the prisons

13 -- prison. Look at Exhibit P53. It is a document that purports to be an

14 interview with Hisni Murseli given to the Serb authorities in January

15 1999. The evidence is that this report has been in the possession of the

16 OTP since June of 1999, long before any of the victims in this case were

17 interviewed. The report describes how in the summer of 1998 Fatmir Limaj

18 was the commander of various villages, including Lapusnik, and that there

19 was a prison in Lapusnik where Serbs and Albanians were held. Under the

20 circumstances, it is impossible to know for sure whether the information

21 in this report came from Hisni Murseli or from the Serbian authorities

22 who interviewed Hisni Murseli, though it should be said that much of what

23 is said in the report has been corroborated by other witnesses.

24 The issue, however, at the moment is not where the information

25 came from. The point is that if the Defence argument is to be believed,

Page 7266

1 then whoever provided the information for this report before June of 1999

2 must also be part of this unconscious or conscious conspiracy hatched

3 years later, according to the Defence, to tie Limaj with the prison in

4 Lapusnik.

5 And what about Exhibits P23 [sic] and P24 [sic], which purport to

6 be Serbian interviews of witnesses L-04 and L-06 from the fall of 1998?

7 Both witnesses have denied giving these interviews and say that they are

8 fabricated, and it is true that there are certain obvious mistakes in the

9 interviews. However, as the Defence for Haradin Bala points out in

10 paragraph 686 and 711, it seems that at least some of the information in

11 these interviews must have been provided by witnesses L-04 and L-06. Why

12 then are L-04 and L-06 unable to admit that? Given what happened to L-04

13 and L-06 and the accusations of collaboration made against them, it is

14 hardly surprising that these witnesses would deny any interaction with

15 Serbian officials even years later. Remember the words of Witness L-95,

16 who testified at page 4262 of the transcript of the difficulty of coming

17 to testify in this case. It is striking that in both interviews of L-04

18 and L-06 by the Serbians in the fall of 1998, they say that they were

19 released from the prison by the order of Celiku, further rebutting the

20 suggestion by the Defence that the victims simply added Limaj to their

21 stories years later.

22 Finally, Your Honours, the identification of Limaj by Ivan Bakrac

23 is striking. Strangely enough, the Defence claims that Ivan Bakrac did

24 not identify Fatmir Limaj as the commander in the prison, and the Defence

25 even goes so far as to claim that this casts doubt on the testimony of

Page 7267

1 Witness L-07. But the opposite is true: Ivan Bakrac did identify Fatmir

2 Limaj. He testified that after he was released from Lapusnik he saw the

3 commander on television, the commander from Lapusnik, and he recognised

4 him to be the commander from the prison. Ivan identified the footage of

5 the funeral march at Carralluke from June 1998, which is contained in

6 Exhibit P35 and which has been authenticated by Fatmir Limaj himself.

7 The person that he recognised in the footage as the commander of Lapusnik

8 is indisputably Fatmir Limaj.

9 In fact, it seems that Ivan did not see the footage of Fatmir

10 Limaj in the funeral march shortly after he left Lapusnik, as he

11 remembered it, but while he was still in Lapusnik. In Vojko Bakrac's

12 interview with the Serbian authorities just after he was released from

13 Lapusnik, which is in evidence as Exhibit P202, and the relevant section

14 is being shown on the Sanction, Vojko Bakrac stated that while in

15 Lapusnik he and Ivan saw footage on the news of "a convoy of KLA members"

16 and that at the "head of the convoy they recognised the commander who had

17 frequently come there and several others from this group." He said he

18 saw this in July 1998. Let's look at the footage.

19 [Videotape played]

20 MR. WHITING: That is undoubtedly the footage that he's talking

21 about and it corroborates Ivan Bakrac's testimony that this is the

22 footage they saw and they recognised on this footage the commander from

23 Lapusnik. When all of the evidence is put together, there can be no

24 question that Fatmir Limaj was the commander that Ivan and Vojko Bakrac

25 saw in Lapusnik, that they recognise in this video in Lapusnik, and who

Page 7268

1 released them from Lapusnik.

2 The Defence seizes on the fact that Ivan Bakrac was unable to

3 pick Fatmir Limaj out of a photo spread when he was interviewed and again

4 in court. But here they are forgetting the testimony of their own expert

5 on identification, Professor Wagenaar. Professor Wagenaar testified at

6 pages 7193 to 94 of the transcript that if a witness sees a suspect with

7 a beard and is later shown a photo spread containing the suspect without

8 a beard, this change can, in some cases, be an impediment to recognition.

9 He even said that the danger in such a case is that you will miss an

10 identification of a guilty person. This is precisely what happened in

11 this case. Ivan Bakrac was able, with absolute certainty, to recognise

12 the image of Fatmir Limaj with the beard from the video. But when he was

13 shown a photograph of Limaj without the beard he could not pick him out.

14 This was true even though he was given a second opportunity to pick Limaj

15 out from the same photo spread in court with Limaj sitting here as one of

16 the three accused in the case, which refutes the suggestion, we submit,

17 that if given the opportunity witnesses will simply and automatically

18 identify those who are in trial in a case.

19 In summary then, the Prosecution submits that the evidence has

20 shown beyond all reasonable doubt, beyond all possible doubt, that Fatmir

21 Limaj was the overall commander of Lapusnik and of the prison there.

22 What about the Isak Musliu? Isak Musliu claimed when he was

23 interviewed during the investigation of this case in 2001, which is in

24 evidence as Exhibit P32, that he was simply a team leader in Lapusnik in

25 charge of, at most, 15 to 16 men. By the time of the pre-trial brief in

Page 7269

1 2004, however, this number had already increased to between 50 and 60

2 men. Still now in the final brief he continues to hold on to the claim

3 that he was simply a team leader in Lapusnik; that's simply not true.

4 The evidence had proven beyond all possible doubt that Isak Musliu was

5 the commander of the Celiku 3 unit in Lapusnik. Ruzhdi Karpuzi said so,

6 Witness L-64 said so, Shukri Buja said so in his OTP interview; even

7 Fatmir Limaj confirmed this in his testimony.

8 So what was Isak Musliu's scope of responsibility as commander of

9 the Celiku 3 unit? Musliu contends that there were several units

10 operating in Lapusnik. This is of course highly misleading. The

11 evidence from every witness has shown that the Celiku 3 unit operated in

12 the area below the Peja-Pristina road, and the other units such as the

13 Guri unit, the Lumi unit, and the Pellumbi unit operated in the area

14 above the Peja-Pristina highway. At some point there was also a Pellumbi

15 unit that operated in Kishna Reka to the south of Lapusnik. The area of

16 responsibility of the Celiku 3 unit was confirmed by Ruzhdi Karpuzi,

17 Shukri Buja in his OTP interview, Witness L-64, Dr. Gashi, and others.

18 It is corroborated by documents that were found at Lapusnik contained in

19 Exhibits P244 and P245. Even Elmi Sopi confirmed that when he joined the

20 Pellumbi unit at the end of June 1998, he served across the road, above

21 the Peja-Pristina highway.

22 Celiku 3 was in control of the five fighting positions in

23 Lapusnik: The headquarters; the medical clinic; the kitchen at Gzim

24 Gashi's house; and right across the road from that kitchen, the prison.

25 Isak Musliu also contends that he was just one of the commanders of the

Page 7270

1 Celiku 3 unit. The evidence shows that at most there was just one other

2 commander, Ymer Alushani. As set forth in paragraph 122 of the

3 Prosecution's final brief, the Prosecution submits that Alushani was

4 Musliu's deputy in Lapusnik. But even if it were found that Musliu and

5 Alushani shared command of Celiku 3, it would not change the scope of

6 Musliu's responsibility.

7 So what was the nature of Musliu's command? The evidence shows

8 that he met with important figures when they came to Lapusnik. He

9 commanded the soldiers in fighting, he admitted new soldiers into Celiku

10 3, he gave permission to soldiers to travel, he gave orders regarding who

11 was in charge of the fighting positions, he had responsibility over

12 discipline, and he ensured the proper operation of the clinic. It is of

13 course impossible to believe that Musliu exercised command over all of

14 these areas and yet had nothing to do with the prison.

15 And in fact, the evidence shows that Isak Musliu had command

16 authority in the prison. As set forth in paragraphs 124 and 125 of the

17 Prosecution's brief, he had power to order prisoners detained or

18 released, and he certainly had authority to give orders to guards within

19 the prison. Musliu claims that Witness L-64 testified that Musliu was

20 not responsible for the prison, but this is in fact not what L-64 said.

21 L-64 said only that he did not know what Musliu's responsibility's were

22 over the prison, but he also made it clear that Musliu was, without

23 question, the commander over Lapusnik and that Musliu was in the prison.

24 In addition, there is overwhelming evidence that Isak Musliu personally

25 participated in brutal beatings and murders within the prison.

Page 7271

1 The Defence challenges the identification of Musliu by Witness

2 L-96. It will, of course, be up to the Trial Chamber to decide if the

3 very specific and clear evidence that Witness L-96 provided about Isak

4 Musliu at Lapusnik was credible. In the submission of the Prosecution,

5 it is impossible to imagine why the witness would have made this story

6 up. Moreover, it is perfectly understandable that this witness did not

7 talk about Musliu in his unfinished and unsigned interview with the

8 Serbian authorities just after he escaped execution or in his first

9 interview with the CCIU. These interviews were preliminary, short, and

10 incomplete, and the witness's focus, quite understandably, was on what

11 had happened in Berisa. Needless to say, the alibi of Isak Musliu,

12 claiming that he was not even in Lapusnik when L-96 was there, simply

13 never materialised. Moreover, the evidence of Witness L-96 is hardly the

14 only evidence that Musliu beat prisoners in Lapusnik. Other prisoners

15 testified that Qerqiz beat prisoners regularly, and one victim learned

16 from a prison from Musliu's own village that Qerqiz was Isak Musliu, and

17 several prisoners gave descriptions matching Musliu. Taken together, the

18 Prosecution submits that the evidence establishes beyond all reasonable

19 doubt that Isak Musliu was the commander of Celiku 3 and of the prison in

20 Lapusnik and that he personally participated in crimes there.

21 Your Honour, I'm not sure when you would like to take the break.

22 JUDGE PARKER: In another 10 to 12 minutes.

23 MR. WHITING: That's fine, Your Honour.

24 Finally, Haradin Bala. The evidence shows that Haradin Bala was

25 Shala, the guard in the prison in Lapusnik who also participated in

Page 7272

1 beatings and murder. There can be no doubt that the guard in the prison

2 was in fact Shala and that this Shala participated in the crimes charged

3 against him. The only issue is: Was Shala Haradin Bala? In the

4 submission of the Prosecution, there can be no doubt about this. First,

5 Haradin Bala was identified in photo spreads by two completely

6 independent witnesses, L-96 and Ivan Bakrac. These two witnesses were at

7 Lapusnik at different times and were interviewed by different

8 investigators. There is no evidence that they have ever spoken with each

9 other. Each of these two witnesses picked out Haradin Bala immediately

10 from the photo spread and said that it was Shala. It is impossible that

11 this could have been a mistake or a mere coincidence.

12 The Defence makes a number of specious attacks on these

13 identifications hoping, no doubt, that if enough mud is thrown something

14 will stick. The Defence contends over and over again in paragraphs 626,

15 637, and 650 that after his release from Lapusnik, Ivan Bakrac searched

16 the Internet for somebody responsible; that's simply not the evidence.

17 The evidence is that Ivan Bakrac was simply looking for information about

18 Kosovo on the Internet, and this very fact was acknowledged again and

19 again in the Defence counsel's own questions to Ivan Bakrac at transcript

20 pages 1481, 1491, 1501, and 1528. The Defence also suggests that Ivan

21 Bakrac gave two or three statements before he identified Bala; well,

22 that's not true either. In fact, the evidence shows that while Ivan was

23 present when his father was interviewed just after their release from

24 Lapusnik and added, at most, one or two pieces of information, he himself

25 was interviewed for the very first time by the OTP, and at that time he

Page 7273

1 identified Haradin Bala from the photo spread.

2 With respect to L-96, the Defence suggests in paragraph 781 that

3 the witness required more time in order to make the identification of

4 Shala; nothing could be further from the truth. It is hard to imagine

5 how anybody could forget the testimony in this courtroom of Witness L-96

6 about how he picked out Haradin Bala immediately and without hesitation.

7 The Defence also criticises in paragraph 875 the instruction given to

8 L-96 by the investigator. First off, the Defence misstates the

9 instruction that the investigator gave to the witnesses. The

10 investigator did not ask the witnesses, as the Defence alleges, which of

11 the faces they saw was Shala in the photo spread; rather, the

12 investigator asked the witnesses, as set forth in paragraph 11 of P259,

13 if they saw Shala in any of the pictures. Moreover, such an instruction

14 telling the witness which suspect the photo board was for is precisely

15 what is recommended by the Defence expert on identification, Professor

16 Wagenaar. Finally, the Defence argues that L-96's identification was

17 tainted by information that he received from others. But none of the

18 information that the witness received could have in any way assisted him

19 in selecting, immediately and without hesitation, the photograph of

20 Haradin Bala from the photo spread.

21 The Defence suggests that the identifications of L-96 and Ivan

22 Bakrac should be outweighed by witnesses who picked nobody out of the

23 Haradin Bala photo spread, but at the same time the Defence quite

24 properly acknowledges the testimony of Professor Wagenaar, that

25 identifications are not simply a matter of adding up the score. The

Page 7274












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13 English transcripts.













Page 7275

1 Prosecution submits that the witnesses who failed to pick anybody out of

2 photo spreads were, generally speaking, more traumatised, more broken by

3 the experience of being in Lapusnik, and for this reason were less

4 willing or less able to assist the investigation in this case. The

5 failure of these witnesses to identify somebody simply does not cancel

6 out the certain and powerful identifications of L-96 and Ivan Bakrac.

7 Your Honour, perhaps --

8 JUDGE PARKER: That's a significant point in your order, is it?

9 MR. WHITING: It is, Your Honour.

10 JUDGE PARKER: In that event we will break now, resuming I think

11 at 5 past 4.00.

12 --- Recess taken at 3.41 p.m.

13 --- On resuming at 4.09 p.m.

14 JUDGE PARKER: Mr. Whiting.

15 MR. WHITING: Thank you, Your Honours. Before I continue, I must

16 make a correction of a misstatement which was brought to my attention by

17 Mr. Younis, covering my back until the very end. At page 20, line 4, I

18 said -- I referred to "P23 and P24." I should have said P203 and P204.

19 JUDGE PARKER: Thank you.

20 MR. WHITING: Before the break I was talking about the

21 identifications of Haradin Bala by witnesses L-96 and Ivan Bakrac.

22 The Defence also attacks the photo spread procedures used by the

23 investigators. I will not repeat here all of the arguments made by the

24 Prosecution in its final brief on this subject; however, the Prosecution

25 submits that the photo spreads and the procedures were in fact reliable.

Page 7276

1 The one procedure that should have been followed, which wasn't, is that

2 witnesses should have been told that the suspect may not be in the photo

3 spread. But the evidence is that the only consequence of failing to

4 follow this instruction is that it could have caused the witnesses, if

5 they did not recognise anybody, to guess. There is no evidence, however,

6 that this occurred in this case. Ivan Bakrac identified Haradin Bala

7 from the photo spread, but he did not identify anyone from the other

8 photo spreads; he did not guess. Vojko Bakrac did not identify anybody

9 from the photo spreads; he did not guess. These results positively

10 refute the unfounded allegation by the Defence that Investigator Lehtinen

11 guided the witnesses to choose a paragraph in the photo spreads, which

12 appears in paragraph 889 of the final brief. Witness L-96 identified all

13 three accused in this case, but he did not identify anybody from the

14 photo spread containing a picture of Agim Murtezi, again demonstrating

15 that he did not guess. In isolation, the failure to tell a witness that

16 the suspect may not be in the photo spread does not, in our submission,

17 undermine the identification. In all other respects, the photo spreads

18 and the procedures were fair and there is no evidence whatsoever of

19 suggestiveness, either in the photo spreads or in the procedures.

20 The Defence also alleges, falsely, that the investigators failed

21 to record negative identifications. The record in this case establishes

22 precisely the opposite with respect to all three investigators, and

23 reference is made to transcript page 4949 for Mr. Kereakes, paragraph 15

24 of Exhibit P258 for Mr. Lehtinen, and paragraph 17 of exhibit P259 for

25 Mr. Manthey. Obviously the Prosecution has disclosed all positive and

Page 7277

1 negative identifications to the Defence, regardless of whether they were

2 led in evidence. And in our submission, it is entirely improper for the

3 Defence to raise the ghost of negative identifications that may not be in

4 the record in this case, as it would be improper for the Prosecution to

5 ask the Court to speculate about other positive identifications that are

6 not in the record.

7 Finally, the Defence contends that in evaluating the

8 identifications the Court should focus on the photo spread procedures but

9 not on the circumstances under which the witnesses saw the accused in

10 this case. The law, however, is the opposite. In the United States, for

11 example, the law is that even when there is a showing of suggestiveness

12 in the pre-trial identification procedure, something which has not been

13 established here, the identification will not be excluded where there is

14 a strong basis for the identification, meaning sufficient viewing time,

15 favourable conditions, degree of attention, and the like. This law is

16 set forth in detail in footnote 544 of the Prosecution's final brief, and

17 I will not repeat it here.

18 In the view of the Prosecution, the two identifications of L-96

19 and Ivan Bakrac alone prove that Shala was Haradin Bala. There is no

20 other explanation for how these two independent witnesses could have each

21 picked out, with certainty and without hesitation, Haradin Bala. But of

22 course there is much more. There is the testimony of L-64, who says that

23 Haradin Bala was in fact the guard at Lapusnik, at the prison, and the

24 testimony of Dr. Gashi, who knew Haradin Bala from long before the war

25 and testified that he was in fact in Lapusnik in July -- June and July of

Page 7278

1 1998. The Defence suggests that L-64 was confused about Haradin Bala,

2 but L-64 explained that in his first interviews with the OTP he sought to

3 protect Haradin Bala. Nonetheless, even though L-64 wanted to protect

4 Bala and in court L-64 continued to say that he did not believe that Bala

5 had committed any crimes, he clearly stated in his interviews with the

6 OTP and in court that Bala was in fact a guard in the prison in Lapusnik.

7 It was Bala.

8 The Defence also says that there is no mention of Shala or of the

9 prison in the diary of Witness L-64. It is hardly a surprise that L-64

10 did not talk about the prison in his diary. It was plainly the dirty

11 little secret of Lapusnik, and L-64 himself testified that he was not

12 interested in writing about it.

13 [French interpretation on the English channel]

14 MR. WHITING: Apparently there's French interpretation in the

15 English channel. I will say something to make sure it's okay.

16 Besides, what possible conclusion can be drawn from the fact that

17 the prison and Shala are not in the diary? Is there really any doubt

18 that there was a prison in Lapusnik and that Shala was a guard there?

19 No. The fact that L-64 did not write about this in his diary hardly

20 undermines these facts, and it certainly does not undermine L-64's

21 reluctant testimony that Haradin Bala was Shala, the guard in the prison

22 in Lapusnik.

23 With respect to Dr. Gashi, the Defence contends that Dr. Gashi

24 was wrong about when he opened his clinic at the Ferat Sopi compound and

25 when he saw Haradin Bala there. They point to a previous interview of

Page 7279

1 Dr. Gashi, which did not result in a signed statement, and to the

2 testimony of Ferat Sopi. The evidence, however, shows that in Dr.

3 Gashi's first interview, during which he himself admits he was not

4 cooperative and not completely truthful, he said that he opened the

5 clinic in May or June of 1998. The evidence also shows that in this

6 interview, Dr. Gashi did not focus with precision on the particular dates

7 and events during the month of May. When Dr. Gashi did focus on the

8 exact chronology, he testified without any doubt that the clinic opened

9 at the beginning of June or, at the earliest, on the last day of May.

10 And this is exactly corroborated by the apparently complete record of

11 injections given at the clinic, which is in evidence as Exhibit P127.

12 Dr. Gashi also testified that he saw Bala in the clinic in June --

13 Correction. That's Exhibit P217, not 127.

14 Dr. Gashi also testified that he saw Bala in the clinic in June

15 or July of 1998. On the other hand, the testimony of Ferat Sopi was

16 nothing but equivocal concerning the date the clinic opened, and his

17 testimony on this subject is certainly less reliable than the testimony

18 of Dr. Gashi. Moreover, the evidence is that before testifying, Ferat

19 Sopi read the transcript of Dr. Gashi's testimony in this court, which

20 was published in the newspaper and which is in evidence at P252, and

21 which, it is important to say, is different from what was read out to

22 Ferat Sopi by the Defence in re-direct examination. And therefore, I

23 would urge the Court to look closely at that exhibit and the translation

24 of that exhibit. And the evidence is that Ferat Sopi stated to the

25 investigator that the testimony that he read of Dr. Gashi in that

Page 7280

1 newspaper article, which is in evidence, was accurate.

2 Finally, and this is very important, the clinic was not the only

3 place where Dr. Gashi saw Haradin Bala. He also testified that he saw

4 him once or twice while going to the kitchen at Gzim Gashi's compound in

5 June or July of 1998. The Defence itself concedes in paragraph 834 that

6 Haradin Bala worked in the kitchen in Gzim Gashi's compound. However,

7 the evidence from Elmi Sopi and Witness L-64 establishes without any

8 doubt that Gzim Gashi's compound was not used as a kitchen until after

9 the 29th of May, 1998. The evidence establishes, therefore, that Haradin

10 Bala did not leave Lapusnik as he contends, but in fact he stayed in June

11 and July and was a guard in the prison.

12 And there is more evidence proving that Haradin Bala was Shala.

13 The other victims at Lapusnik who testified provided descriptions of

14 Shala that match Haradin Bala. Remember, the evidence is that there were

15 just two Shalas at Lapusnik: Haradin Bala and Ruzhdi Karpuzi. This is

16 your pool of suspects. The descriptions match Haradin Bala; they do not

17 match at all Ruzhdi Karpuzi. Further, Witness L-07 testified that he met

18 Shala at a petrol station after the war and learned from him that his

19 name was Haradin Bala. There is no reason why this witness would have

20 made up this testimony. Bala was also identified in court by witnesses

21 L-06, L-07, L-10, and L-12. It is true that ordinarily so-called dock

22 IDs should carry little weight. Here, however, as the Prosecution argues

23 in paragraph 157 of its brief, in light of the prolonged and varied

24 exposure of the victims to Shala at Lapusnik, the court identifications

25 of Haradin Bala should carry corroborative weight.

Page 7281

1 Finally, Your Honours, there is Haradin Bala's alibi to consider.

2 The Prosecution agrees with the statement of the Defence in paragraph 30

3 of their brief that: "Even if the Trial Chamber declines to accept the

4 truthfulness of the narratives of Haradin Bala's alibi Defence

5 witnesses," the burden is still on the Prosecution to prove Bala's guilt

6 beyond a reasonable doubt. That is true. However, it is also the case,

7 it is submitted, that a false alibi, not an alibi that fails to

8 materialise, but a false alibi can be considered as evidence of guilt.

9 In support of this proposition, the Prosecution offers the cases of

10 United States versus Fortes, which is reported at 619, F.2d 108, in

11 particular page 123, note 6; that is a case from the 1st Circuit Court of

12 Appeals in the United States from 1980. And the case of People versus

13 Ficarrota, 92, New York 2d 244, in particular page 250, a 1997 case of

14 the Court of Appeals of New York, which is the highest court in the state

15 of New York.

16 Haradin Bala's alibi is indeed false. Look at its various

17 versions. In Bala's pre-trial brief in paragraph 4, which was filed a

18 year and a half after he was arrested after he had had considerable time

19 to consider the details of his whereabouts during the summer of 1998, he

20 stated that on the 8th of May 1998 he was in his home village of

21 Korretice when he heard fighting in Lapusnik, and that he went from his

22 home village, Korretice, to Lapusnik to fight. In Bala's statement to

23 the Court, he said the same thing at page 6912. In the final brief,

24 however, relying on the testimony of Kadri Dugoli, the Defence asserts in

25 paragraphs 831 and 832 that Bala had moved his familiar to Nekovce before

Page 7282

1 the fighting in Lapusnik and that he was in Nekovce when he heard the

2 fighting in Lapusnik and went to Lapusnik from Nekovce. In the pre-trial

3 brief, Bala also says that he stayed in Lapusnik at most 15 days, which

4 would have meant the 23rd of May, and that he participated in the

5 fighting of the 17th to 18th of May. This claim was repeated in the

6 alibi notice and in court by Bala himself with respect to the 15 days, or

7 two weeks, at transcript page 6913. Elmi Sopi testified, however, that

8 Bala was still in Lapusnik on the 29th of May and that he participated in

9 the very important battle on that day, a fact that is simply not

10 accounted for anywhere in Bala's alibi.

11 Next, Bala claims in the pre-trial brief that after he left

12 Lapusnik he went to Klecke where he worked at a training camp for a short

13 time and then went to work in a warehouse in Luznica. In the alibi

14 notice, this account is more vague, stating only that after Bala left

15 Lapusnik he worked in Luznica and Klecke, without specifying when. In

16 Bala's statement to the Court, he said that he went from Lapusnik to

17 Luznica, not to Klecke as had been stated in the pre-trial brief. In

18 fact, there is no mention of Klecke at all. The final brief ends up

19 taking both approaches. In paragraph 614 it states that Bala was in

20 Klecke, Luznica, and Javor after he left Lapusnik. In paragraphs 835 and

21 838, however, it is just Luznica. Of course, there is no witness who saw

22 him either in Luznica or in Klecke during this time period, not a single

23 one. And who should have seen him in Klecke? Well, Fatmir Limaj, of

24 course, who was the commander in Klecke and who states in paragraph 580

25 of the final brief: "Regularly turned away civilians and refused to

Page 7283

1 expand KLA ranks" in Klecke, taking a "careful and prudent approach" to

2 expanding his unit in Klecke. However, Fatmir Limaj said in court that

3 the first time he -- he claimed in court that the first time he ever met

4 Haradin Bala was when the arrests occurred in this case. Even he did not

5 say that he saw Haradin Bala in Klecke during the summer of 1998, though

6 the characterisation of his careful control over his unit in Klecke,

7 which is in paragraph 580, would suggest that he must have known if

8 Haradin Bala was there. The simple fact is: Haradin Bala was not in

9 Klecke, he was not in Luznica, he was in Lapusnik.

10 Bala also claims now, for the first time in the final brief, that

11 his medical condition rendered him incapable of committing the crimes

12 alleged in this indictment. This claim appears in paragraphs 617, 810,

13 and 845 of the Defence brief. Of course, this new claim is in

14 contradiction to what Bala's Defence counsel said in the opening of their

15 case, where it was said at page 6899 of the transcript that: "We cannot

16 say that it would have been physically impossible for Haradin Bala to

17 perform the actions that he is accused of performing."

18 Of course that's true. There has been no evidence in this case

19 showing that it would have been physically impossible for Haradin Bala to

20 have committed the crimes. A bad idea, perhaps, but a bad idea for lots

21 of reasons.

22 Bala's alibi is filled with other contradictions that are set

23 forth in more detail in the Prosecution's final brief. The alibi is

24 false, and of course Haradin Bala knows it's false. He wasn't in

25 Luznica, he wasn't in Klecke, he was in Lapusnik, a guard in the prison

Page 7284












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13 English transcripts.













Page 7285

1 in June and July of 1998. This has been proven, we submit beyond any

2 doubt -- any reasonable doubt, and the false alibi is evidence of Haradin

3 Bala's consciousness of guilt.

4 Now, Your Honours, I will turn to Mr. Black, who will address the

5 evidence about the particular crimes charged in this case, after which

6 Mr. Nicholls will address the issues of armed conflict and widespread and

7 systematic attack. Then I will conclude, likely tomorrow, next session,

8 tomorrow on the issue of sentencing.

9 JUDGE PARKER: Thank you.

10 MR. BLACK: Good afternoon, Your Honours. May it please --

11 JUDGE PARKER: Yes, Mr. Black.

12 MR. BLACK: -- the Trial Chamber.

13 As stated by Mr. Whiting, the Prosecution submits that it has

14 proven its case regarding all counts, as alleged in the second amended

15 indictment. There is one small exception, which we've noted in our final

16 brief: The Prosecution concedes that the evidence did not sustain the

17 count of murder with regard to Sinisa Blagojevic. However, with that one

18 exception, the Prosecution contends that all of the crimes in the

19 indictment, the imprisonment, the conditions of detention, the beatings

20 and the torture, and every murder identified in the indictment and in

21 annexes I, II, and III, has been proven beyond reasonable doubt. The

22 evidence establishing those crimes is addressed at length in our final

23 brief, and I don't intend to repeat that detailed effort here,

24 nevertheless we do think it appropriate to publicly summarise how the

25 evidence has supported the allegations in the indictment and to address

Page 7286

1 some of the issues raised by the accused in their joint final brief.

2 First and fundamentally, the evidence has established beyond any

3 possible doubt that there was in fact a prison camp operated by the KLA,

4 located in the village of Lapusnik. The Trial Chamber heard direct

5 evidence from a number of survivors of the camp, including witnesses

6 L-04, L-06, L-07, L-10, L-12, L-96, and the Bakracs. Their testimony

7 plainly established that they were held in a prison camp, that their

8 captors were members of the KLA, and that the camp was located in

9 Lapusnik, specifically in the compound which is labelled Compound A in

10 Prosecution Exhibit's P5 and P6.

11 Significantly, that victim testimony regarding the camp was

12 strongly corroborated by other trial evidence. For example, Shukri Buja

13 testified that he went to Lapusnik and arranged for the release of a

14 detainee. Witness L-64, another KLA insider, testified that he

15 personally visited the camp in June and July of 1998. Further

16 corroboration was provided by documentary evidence found in Lapusnik

17 after it fell to the Serbian forces at the end of July 1998. Those

18 documents are included, for the most part, in sealed Prosecution Exhibit

19 P244 and in its public version, Exhibit P245. That evidence was admitted

20 pursuant to Rule 92 bis, with the agreement of the Defence. However, in

21 their final brief, the Defence argue that the source and authenticity of

22 the documents is unclear; that is not correct. The source and

23 authenticity of the documents is addressed in the statement of Witness

24 103 at the beginning of Exhibit P244/P245. The provenance of the

25 documents is also addressed in a memo found at tab 1 to that exhibit,

Page 7287

1 which is dated 18 August 1998, approximately three weeks after the

2 seizure of the documents in Lapusnik. Some of the documents have also

3 been independently authenticated by other witnesses in court. For

4 instance, tab 2 [sic] is also Exhibit P129, which was authenticated by

5 Ruzhdi Karpuzi and by Witness L-64. Dr. Zeqir Gashi authenticated a

6 number of documents found at Lapusnik, including prescriptions, medical

7 histories, and a list of injections from his clinic there. Those

8 documents, marked Prosecution Exhibits 215, 216, and 217, are also

9 addressed in P245.

10 The Prosecution thus submits that the evidence of the existence

11 of a KLA camp in Lapusnik is overwhelming. As noted earlier by Mr.

12 Whiting, the Defence even stopped cross-examining Prosecution witnesses

13 on this issue towards the end of the Prosecution case, and there's a

14 reference in our final brief at footnote 349. However, in the final

15 brief of the Defence the argument is resurrected at paragraph 178, where

16 they suggest not only that there was no KLA camp in Lapusnik, but that

17 the KLA was incapable of running any prison camp, period.

18 Fatmir Limaj has also adamantly denied the existence of the camp

19 from early in his proceedings as well as in his oral testimony before the

20 Trial Chamber. Your Honours, we submit that the Defence position that

21 there was no KLA camp in Lapusnik simply cannot be reconciled with the

22 evidence.

23 The Trial Chamber also heard direct evidence from the victims

24 about their unlawful imprisonment in the camp and inhumane conditions

25 which they suffered there. One victim who testified before the Trial

Page 7288

1 Chamber was Witness L-06, who described the conditions in the storage

2 room, which was marked A5 in Prosecution Exhibits P5 and P6. The

3 relevant testimony is at pages 994 to 999 of the transcript, and it's

4 fairly long so I won't read it out in its entirety, but I'd like to

5 highlight a couple of points addressed. In essence on page 994, Mr.

6 Whiting asks Witness L-06 to describe the room in which he was held. On

7 the next page he says: "It was 2 metres by 3 metres." It had a floor

8 made of concrete with manure on the floor. He says there was water

9 leaking from the ceiling, that it had one very small window. And then

10 the following questions ensue:

11 "Q. What was the temperature in that room?

12 "A. The temperature, I don't know how to tell you, well, if

13 someone had set fire to the place. It was very hot.

14 "Q. Did you have enough air in that room?

15 "A. No. No, what air?

16 "Q. Witness, what did you do when you needed to use the toilet?

17 "A. We never went to a bathroom. There was a toilet inside

18 there for two or three weeks. Then they brought a kind of bucket, and

19 that's where we had to relieve ourselves.

20 "Q. During the first two or three weeks, where did you relieve

21 yourselves?

22 "A. At the door in the corner."

23 Mr. Whiting asks:

24 "Q. On the floor?

25 "A. Yes, on the floor there, behind the door.

Page 7289

1 "Q. When there was a bucket, was the bucket emptied regularly?

2 "A. No. When it became full, sometimes it overflowed. When

3 they felt like emptying it, they came and emptied it. When they didn't,

4 it stayed like that, full."

5 Mr. Whiting continues to ask the witness about food. He says:

6 "Q. How often were you given food when you were in that room?

7 "A. Food? Mostly we went without food than with food. Three or

8 four days we stayed without food. Sometimes they gave us food, sometimes

9 for 24 hours they didn't. Sometimes they brought us food... but for

10 three or four days we stayed -- we went without food."

11 Then he explains that when they were given food it amounted to

12 pasta or a piece of bread. He said there was enough water. And when Mr.

13 Whiting asked him about who brought the water the answer was:

14 "A. Shala brought the water."

15 Another question on page 997, and this is the last passage from

16 this transcript:

17 "Q. Did a doctor ever come to care for any of the people in that

18 room?

19 "A. No, there was no doctor.

20 "Q. Were you ever allowed to leave the room and walk around the

21 yard?

22 "A. No, only Shala sometimes opened the door to air the room in

23 the evening after sunset. So we could get out a little bit and we went

24 in again.

25 "Q. Did that happen every day?

Page 7290

1 "A. No, once a week, once every three or four days."

2 Your Honour, Witness L-06's description was corroborated by other

3 evidence. In fact, every victim who came to testify testified about the

4 horrible conditions at the camp, and in fact the brutality of those

5 conditions was also testified to by Witness L-06, himself a KLA insider,

6 a member of the Celiku 3 unit -- L-64. Sorry. L-64 was the KLA insider.

7 As set forth in the Prosecution's final brief, we submit that

8 severe beatings and torture were fundamental characteristics of the

9 Lapusnik prison camp. The Trial Chamber heard testimony from a number of

10 witnesses who were themselves beaten at the camp, including witnesses

11 L-04, L-12, and L-96. Indeed, the victim evidence revealed a clear

12 pattern in which beatings occurred on a regular basis, essentially every

13 night. Prisoners were sometimes beaten in the rooms in which they were

14 held, other times they were taken out for beatings. In one witness's

15 words: "Nobody knew whose turn it was to be beaten."

16 The Trial Chamber also heard powerful evidence about specific

17 incidents of beatings, for example the torture of Stamen Genov, a young

18 medic in the Yugoslav army who was taken off of a bus along with the

19 Bakracs and eventually murdered in the camp. Vojko and Ivan Bakrac

20 described in detail how Genov was mercilessly beaten upon his arrival at

21 the camp. Vojko Bakrac further described how at the end of that beating

22 a soldier closely matching the description of Isak Musliu threatened to

23 cut off Genov's genitals with a knife while Genov begged for mercy.

24 Another striking example of the combination of physical and

25 psychological torture at the camp was an incident described by Vojko

Page 7291

1 Bakrac when he and Ivan were taken downstairs in building A1 for "tea."

2 And I'd like to show you a clip of his testimony. Mr. Younis.

3 [Videotape played]


5 "Q. -- the first one that you were taken to at a farm.

6 "A. Yes, on one occasion we were called to go down there. We

7 had tea. We sat there.

8 "Q. Did anything else happen besides having tea?

9 "A. Yes. There was an unpleasant situation for me and for my

10 son. We had to watch as other men were beaten.

11 "Q. I know it's unpleasant, but I'm going to ask you to describe

12 that occasion for the Trial Chamber. First, do you remember how many men

13 were there being beaten?

14 "A. They brought four or five of them. I don't know the exact

15 number, but it wasn't more than five. They lined them up and started

16 beating them. They would beat every one of them for five or ten minutes,

17 slapping them, kicking them, hitting them on their legs. One of them was

18 unable to stand at all. At any rate, they were beaten up.

19 "Q. Did you recognise any of the soldiers who participated in

20 the beating?

21 "A. Yes. The same man that beat Genov beat these people. I'm

22 referring to the first day when we arrived there, in that facility.

23 "Q. Was this person armed now on this -- this occasion that

24 you're describing right now?

25 "A. He had a pistol.

Page 7292

1 "Q. Did he do anything with that pistol?

2 "A. Yes, I remember that. When they stopped beating them, he

3 handed a pistol to one of these men and he told him to kill the others.

4 The man lifted the pistol up and put him next to a person's forehead.

5 They were crying, begging for mercy. Then this first man took the

6 pistol, put it next to the man -- another man's forehead and fired it,

7 but it was empty. I think it was some kind of a psychological torture."

8 MR. BLACK: I think we're done with the Sanction for the moment.

9 Thank you.

10 Your Honours, it must be noted that many of the victims of

11 physical violence in the Lapusnik camp were extremely vulnerable. For

12 example, Mus Musliu and Witness 12 were both elderly men. Nevertheless,

13 the evidence is that Mus Musliu was beaten by Shala in building A1 and

14 Witness L12 was beaten by Shala, this time in a barn in the presence of

15 Qerqiz.

16 Another example is that of Shaban Hoti, a retired professor from

17 Pristina who was detained while working as an interpreter for Russian

18 journalists who were covering the conflict. The Trial Chamber heard from

19 Oleg Safiulin, one of the Russian journalists, how Hoti was savagely

20 beaten after their detention along the Pristina-Peja road, which

21 incidentally corroborates the testimony of another witness who saw Hoti

22 arrive at the Lapusnik camp in a very bad condition. Once there, and the

23 next day as well, soldiers kicked and jumped on Hoti until, in one

24 witness's words: "You had no idea whether he was alive or dead."

25 It is significant that the testimonial evidence of serious

Page 7293

1 beatings in this case was corroborated by expert scientific evidence,

2 specifically by the expert reports of Jose Pablo Baraybar, which is

3 Prosecution Exhibit 111, and the report of George Maat, Exhibit P200, as

4 well as by Dr. Maat's viva voce testimony before Your Honours. Forensic

5 examinations by those two experts revealed that the remains of several

6 victims from the camp showed signs of ante-mortem injuries, that is

7 injuries that occurred before death, which were completely consistent

8 with severe beatings, as described by surviving victims. For example,

9 several witnesses testified that a detainee named Shyqyri Zymeri suffered

10 a broken leg while at the camp and that he had to be carried by other

11 prisoners during the march to Berisa, where he was murdered on 26 July

12 1998. Zymeri's body was recovered from the execution site in 2001 and it

13 was identified by DNA analysis performed by the International Commission

14 on Missing Persons. Forensic examination of those remains by Baraybar

15 and Maat showed that Zymeri had suffered a fracture of the right tibia -

16 in other words, a broken leg - approximately three weeks before his

17 death. And it's important to lay this out clearly. Shyqyri Zymeri was

18 kidnapped on the 26th of June 1998. He was murdered one month later on

19 the 26th of July 1998. That means that three weeks before his death at

20 the time his leg was broken, according to Dr. Maat, he was being held in

21 the Lapusnik prison camp. The science precisely corroborates the witness

22 testimony.

23 Now, I would note that Dr. Maat's evidence, together with other

24 victim testimony, also established that Emin Emini suffered fractures to

25 his sternum and to several ribs while detained in the camp and Lutfi

Page 7294












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13 English transcripts.













Page 7295

1 Xhemshiti suffered two broken ribs approximately two weeks before his

2 death, again while he was detained in Lapusnik.

3 Incidentally, Your Honours, there was no evidence that Shyqyri

4 Zymeri, Emin Emini or Lutfi Xhemshiti received any medical treatment for

5 their broken bones, which obviously, particularly in the case of Zymeri,

6 must have the excruciatingly painful. To the contrary, the evidence is

7 that seriously injured prisoners such as Srboljub Miladinovic, who was

8 shot in the legs, received no medical care, even though, Your Honours, we

9 know from several witnesses that there was an operational medical clinic

10 operating a matter of two or three hundred metres away in the compound of

11 Ferat Sopi. Medical care was available, but it was not offered. Your

12 Honour, under the circumstances, the wilful denial of medical care - and

13 it's clearly wilful - the wilful denial of medical services to seriously

14 injured prisoners constitutes torture.

15 It is hardly surprising, given the intensity of the physical

16 violence of the camp, that many men died there. The Trial Chamber

17 received evidence from several sources about murders in the camp from

18 surviving prisoners, from a KLA insider, and from expert witnesses.

19 The Defence position, both before and during trial, was that they

20 "could not gainsay" the deaths of the murder victims identified in the

21 indictment. In their final brief, however, that position has changed,

22 and the Defence argue in paragraph 155 that where no body has been

23 recovered "the Prosecution has failed to prove anything beyond the

24 disappearance of these individuals."

25 In fact, with the exception of Sinisa Blagojevic, whom I

Page 7296

1 mentioned earlier, the Prosecution has put forward evidence sufficient

2 for the Trial Chamber to find that every victim named in Counts 7 and 8

3 and Annexes I and II of the indictment was killed in or in close

4 connection with the Lapusnik camp.

5 First, in several instances the Trial Chamber has heard directly

6 from eyewitnesss to the murders or to events closely related to the

7 murders. For example, Ajet Gashi. The Trial Chamber heard direct

8 evidence about his execution, which was corroborated by 92 bis evidence

9 from a family member of his, by newspaper accounts of the murder and of

10 the discovery of his body, and also by forensic examination of the body

11 itself.

12 Another example is Agim Ademi. Ademi was last seen alive by his

13 fellow prisoners when he was taken by Qerqiz from the cowshed. And the

14 cowshed, by the way, is marked A6 on Prosecution Exhibits 5 and 6. The

15 evidence shows that detainees were later forced by Shala to bury the dead

16 bodies of three men, one of whom was recognised as Agim Ademi. The

17 Defence erroneously claim at paragraph 170 of their final brief that

18 Ademi was never even placed at the camp by the evidence. However, they

19 do later refer to the account of Ademi's burial as one of the reasons why

20 a particular document obtained from the Serbian authorities must be

21 genuine. And you will find that at paragraph 686 of the brief. In any

22 event, we submit that the evidence is overwhelming that Agim Ademi was

23 murdered by the KLA with the participation on some level of both Isak

24 Musliu and Haradin Bala.

25 Third, we have the murder of Fehmi Xhema, also known as Fehmi

Page 7297

1 Tafa. Xhema's death was witnessed firsthand by two fellow prisoners.

2 Their accounts were largely similar, although they do differ in one

3 important aspect. Witness L-10 testified that Xhema was taken out of the

4 storage room by Shala and Qerqiz just before his death, while Witness

5 L-06 testified that it was Ramadan Behluli and Ali Gashi who took Xhema

6 out of the storage room. Now, we have set out in our final brief, and

7 you can look at footnote 732, why we submit that the Trial Chamber could

8 find beyond reasonable doubt that Witness L-10's version is accurate.

9 However, we submit that this is ultimately a factual matter for the Trial

10 Chamber. But what is notable is that both witnesses implicate Shala in

11 the immediate aftermath of Xhema's final beating, denying, or according

12 to L-06 eventually reluctantly providing, water to the dying man, and

13 participating in the removal of his body some days after his death.

14 The Defence have argued several points in their brief that the

15 autopsy report of Fehmi Xhema, which is found at Prosecution Exhibit

16 P227, somehow invalidates the testimonial evidence of his murder. At

17 paragraph 734 they go so far as to say that parts of the witnesses'

18 accounts are "undeniably false." However, we invite you to look at the

19 autopsy report because all it shows is that Xhema possibly received a

20 gunshot wound to the thorax, or chest, around the time of his death.

21 There is no support whatsoever, by the way, for the Defence claim that "a

22 man with a gunshot wound to the thorax cannot speak or would have extreme

23 difficulty speaking." That is not supported by any evidence on the

24 record and I would say that it's not supported by common sense, either.

25 If Xhema was indeed shot before he died in the storage room, we submit

Page 7298

1 that it is entirely plausible that Witnesses L-06 and L-10 simply did not

2 notice that, in addition to the severe beatings which he had suffered,

3 Xhema had also sustained a gunshot wound. It is understandable that they

4 would have been concerned more with the ultimate issue of whether he

5 would live or die than with the specifics of how he was mortally injured.

6 Do the Defence really suggest that Witness L-06 and Witness L-10 made up

7 their story? Could anyone believe that they were mistaken about Fehmi

8 Xhema literally dying in their arms? We submit that despite the

9 differences in their accounts, the core of their evidence is both

10 consistent and credible. Moreover, whether Xhema was beaten to death or

11 shot to death, what is clear from the evidence is that he was murdered in

12 the Lapusnik prison camp and that Haradin Bala, at least, was personally

13 involved.

14 In the same or perhaps the next category are the murders of Jefta

15 Petkovic and Zvonko Marinkovic. Like Agim Ademi, these men were both

16 seen alive for the last time being taken by Qerqiz from the cowshed. The

17 two dead bodies that were later buried along with Agim Ademi were

18 described as approximately 50 to 55 years of age and 35 years of age,

19 which matches the ages of Marinkovic and Petkovic. Moreover, one of the

20 bodies, according to the witnesses, had a serious injury to the head,

21 which is again consistent with other evidence, in this case the forensic

22 examination of the bodies of Marinkovic and Petkovic which were

23 discovered in a secondary grave site in 2004. You can find that evidence

24 in Exhibit P111, which is the expert report of Jose Pablo Baraybar. Here

25 again, we submit that the Defence is simply incorrect when they state at

Page 7299

1 paragraph 169 of their final brief that no witnesses placed these two men

2 at the camp; the evidence in fact shows much more than that. And the

3 Trial Chamber should find that they were murdered after being taken out

4 by Isak Musliu and that they were buried in a remote location at the

5 direction of Haradin Bala.

6 The bodies of the remaining murder victims identified in Annex I

7 and Annex II have not been recovered; that much is true. However, the

8 Defence is incorrect to suggest that their deaths must therefore be

9 dismissed from this case. As we set forth in our final brief, it has

10 been held, notably in the Krnojelac case, that it is not necessary to

11 produce a body in order to demonstrate that victims have been killed.

12 Krnojelac set out a number of factors to be considered as you weigh the

13 circumstantial evidence and we have addressed all those factors in our

14 final brief. In essence, we submit that the Trial Chamber can find

15 beyond a reasonable doubt that all these men were killed at the camp or

16 in close connection with the camp, based on the following evidence:

17 Number one, the fact that each man was last seen alive in the camp;

18 number two, the fact that none has been seen or heard from by his family

19 in the seven years since he disappeared; and three - and this is very

20 important - the pattern of crimes at the camp, because these

21 disappearances did not occur in a vacuum. The evidence shows torture and

22 murder of Serb and Albanian civilians and the burial and abandonment of

23 victims' bodies in unmarked and sometimes concealed locations.

24 Your Honours, often the last people to accept the death of a

25 missing person are the family members of that person. Ljiljana Mitrovic,

Page 7300

1 the widow of Slobodan Mitrovic, also called Boban, came before Your

2 Honours and testified eloquently about her own reluctant conclusion that

3 her husband had been killed. The next clip shows the last part of her

4 testimony.

5 Mr. Younis, could you show that on the Sanction.

6 [Videotape played]


8 "Q. I want to ask you one final question. Six years have now

9 passed since Boban disappeared. Today as you sit in the courtroom, do

10 you believe him to be alive or dead?

11 "A. I would like to be proven wrong and to be given a chance to

12 apologise to everyone. But I do believe that he was killed, and that is

13 why I'm here because I want justice to prevail. And that those who

14 committed that, that they be brought before justice and be held

15 responsible."

16 MR. BLACK: We're finished with Sanction. Thank you.

17 In summary, Your Honours, the Prosecution submits that the Trial

18 Chamber has heard substantial evidence regarding the murders alleged in

19 Counts 7 and 8 of the indictment, and we ask the Trial Chamber to find

20 that all of the named victims with the exception of Blagojevic were

21 murdered in the camp or directly in connection with the camp.

22 I'll turn now to the events at Berisa, where ten men were

23 executed on July 1998. The Trial Chamber heard directly from a survivor

24 of the Berisa execution, Witness L-96, who described the entire episode

25 in detail. This witness's evidence which was convincing on its face was

Page 7301

1 also corroborated in a number of ways by other evidence. First, of

2 course, several witnesses testified about being taken out of their rooms

3 in the camp and marched up to Berisa by Haradin Bala and another guard

4 named Murrizi, exactly as described by Witness L-96. Second, and

5 arguably more important, Witness L-96's account was powerfully

6 corroborated by the scientific evidence of a number of other witnesses.

7 In 2001 L-96 led investigators to the site where he said the execution

8 took place. Thereafter, the bodies of all but one of the victims he

9 named were subsequently exhumed from that site. The identities of Emin

10 Emini, Ibush Hamza, Hyzri Hajrizi, Shaban Hoti, Hasan Hoxha, Safet

11 Hysenaj, Bashkim Rashiti, Lutfi Xhemshiti, and Shyqyri Zymeri were

12 confirmed by DNA analysis performed by the International Commission on

13 Missing Persons. In other words, Your Honours, the people who Witness

14 L-96 said would be there were there.

15 Forensic examination of the bodies recovered from Berisa by

16 Baraybar and Maat also revealed ante-mortem and perimortem injuries -

17 again, that means injuries inflicted before and around the time of

18 death - which corroborated the testimony of L-96 and other Prosecution

19 witnesses. There was evidence of severe beatings, and I gave the

20 examples of in the cases of Shyqyri Zymeri, Emin Emini, and Lutfi

21 Xhemshiti earlier. There is also evidence of gunshot wounds at the time

22 of death. Moreover, Your Honours, as set out in our final brief, expert

23 ballistics evidence found at Exhibit P113 confirmed that spent ammunition

24 recovered at the Berisa site was fired from two Kalashnikov automatic

25 weapons, which matches exactly with the testimony of Witness L-96 and

Page 7302

1 others who said that Haradin Bala and the third soldier there were each

2 carrying the Kalashnikovs.

3 In sum, Witness L-96's evidence regarding the events of 26 July

4 1998 was corroborated on all of the following points: Release from the

5 camp, the march to Berisa, the site of the killings, the identities of

6 those men released, the identities of those men killed, the make of the

7 murder weapon, Shala's participation, and Fatmir Limaj's participation,

8 which I will turn to in a moment.

9 First, however, the Defence final brief emphasises that Hetem

10 Rexhaj's body has never been recovered, and we suggests that this is a

11 serious problem with Witness L-96's evidence. It is striking that with

12 an account as overwhelming corroborated as that of Witness L-96 the

13 Defence nonetheless latch on to this one issue as supposed proof that the

14 entire account is incredible.

15 We submit that there are at least two reasonable explanations for

16 the fact that Hetem Rexhaj's body has never been found. First, the body

17 may well have been moved. There is other evidence in this case of the

18 use of secondary graves. And as the Trial Chamber is aware there is

19 compelling reason why Rexhaj's body might have been removed and the

20 others left. Second, the body may be nearby and it simply has not been

21 found. The location of this execution site is very rugged and isolated.

22 The Trial Chamber will remember that Witness L-96 in which he described

23 the thick underbrush through which he had to go as he escaped the

24 execution. There is also evidence that the shallow grave at Berisa

25 allowed scavenging animals to disrupt the grave site. I do note that the

Page 7303

1 body of Hasan Hoxha was found many months after the other bodies,

2 although it was found in the same basic exhumation site, due to precisely

3 these types of problems.

4 Your Honours, in any event, it does not ultimately matter why

5 Hetem Rexhaj's body has not been found. Witness L-96 saw him murdered by

6 Haradin Bala and two other KLA soldiers, and that eyewitness evidence is

7 plainly sufficient for a finding that he was murdered as alleged.

8 I turn now to Fatmir Limaj's involvement in the Berisa murders.

9 The Defence suggest that the only evidence of Limaj's involvement consist

10 of L-96 testimony, which they attack, and the release papers which they

11 also question. Dealing first with L-96, as I have stated, his account is

12 strongly corroborated on a number of other details and we submit that his

13 evidence alone is sufficient to prove Limaj's involvement. This is

14 particularly so when one considers the conditions under which he saw

15 Limaj on the 26th of July, 1998. It was daytime. He was a short

16 distance away from where Limaj and Bala were speaking, he testified about

17 7 to 8 metres, and he saw Limaj for an extended time, perhaps as many as

18 5 minutes according to his testimony. These are excellent viewing

19 conditions, ideal for a subsequent identification.

20 Witness L-96's account, however, is further supported by the

21 evidence that the first group of prisoners were released on the order of

22 Celiku. Several witnesses testified about this, either saying that they

23 were told this information or that they were given release papers on

24 which it was actually written. Now, while the details of this testimony

25 do vary slightly, seen as a whole, we submit that this evidence is

Page 7304












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13 English transcripts.













Page 7305

1 powerful corroboration for the fact that Shala consulted with Fatmir

2 Limaj on the march and took orders regarding the fate of the prisoners.

3 Now, while the Defence complained that the release papers were never

4 tendered into evidence, in fact the record shows that the papers were

5 given to Luan and Shukri Buja in Kroimire. You can find that reference

6 at page 1199 of the transcript. I also note that the Serb statements of

7 Witnesses L-04 and L-06, on which the Defence place so many weight in

8 another context, confirm these release papers.

9 Finally on another issue, the Prosecution submits that the

10 evidence of Limaj's involvement in the Berisa events must be considered

11 in light of the other evidence of his command position. For example,

12 Witness L-95 testified that in that same time frame unit commanders were

13 reporting to Limaj, which shows that he was actively monitoring the

14 situation and he was in command of the area. Secondly, we submit that

15 it's highly improbable that Shala would have acted on his own in deciding

16 the fate of these 20 or so prisoners, which is exactly what Fatmir Limaj

17 seems to suggest. Third, Shukri Buja. Buja testified that he later saw

18 the released prisoners and he immediately tried, although unsuccessfully,

19 to contact Klecka. He later spoke about the incident. Buja also

20 testified -- excuse me, said in his OTP interview that Klecka dealt with

21 arrested persons. And finally, Your Honours, it is certainly not

22 accepted by the Prosecution that Fatmir Limaj could not have been where

23 L-96 saw him because of health reasons. Nothing about Limaj's claimed

24 illness would have prevented him from being where L-94 saw him. On

25 Limaj's own testimony he spent the 26th of 1998 going from village to

Page 7306

1 village to village in the area, not far from where L-96 saw him.

2 Your Honour, could you give me an indication of when you'd like

3 me to take the next break.

4 JUDGE PARKER: About another 10 to 12 minutes.

5 MR. BLACK: Thank you. I'll proceed.

6 At this point, it may be appropriate to say a few words about

7 modes of liability.

8 Now, the evidence supporting the various modes of liability and

9 how they relate to the various crimes is addressed in some detail in our

10 final brief, and I won't repeat that effort here. Nevertheless, I'd like

11 to make a couple of points very briefly.

12 We submit that the starting point in this case is joint criminal

13 enterprise. As addressed by Mr. Whiting, each of the accused had an

14 important role in the functioning and operation of the Lapusnik camp.

15 Now, whether the Trial Chamber's inclined to view this case of JCE 2 or a

16 system of ill-treatment or an ordinary common criminal plan under JCE 1,

17 it is plain that the camp was an organised system for the unlawful

18 detention, mistreatment, torture, and murder of Serb and Albanian

19 civilians. By intentionally participating in that joint criminal

20 enterprise and furthering it, all three accused are responsible, as

21 alleged in the indictment.

22 There was also substantial evidence specifically tying the

23 accused to various criminal acts. That, too, is set forth in the final

24 brief. Just to summarise, in many cases the evidence establishes the

25 direct personal participation of Haradin Bala and Isak Musliu in serious

Page 7307

1 violent crime at the camp. The evidence as a whole also strongly

2 supports the charges that Fatmir Limaj and Isak Musliu planned, ordered,

3 and instigated many of the crimes charged in the indictment. In addition

4 to the evidence of their command positions, the evidence shows that they

5 were both personally present at the camp, that Isak Musliu at least

6 personally participated in violence, and that Fatmir Limaj personally

7 witnessed some of those incidents. Yet they took no action to stop the

8 openly criminal behaviour at the Lapusnik prison camp. This evidence,

9 Your Honours, is important for intent as well as notice. And in fact, we

10 submit that in addition to their criminal failure to prevent or punish

11 under Article 7(3) both Limaj and Musliu by their wilful inaction and by

12 their own example instigated and aided and abetted the the crimes at the

13 camp.

14 I'll now address two specific points with regard to Isak Musliu,

15 both arising from the Defence final brief. The first one, although it's

16 not particularly clear, the Defence appear to suggest at paragraph 901 of

17 their final brief that Musliu was not charged with the murders in Annex

18 I. Certainly they're not addressed in the Musliu section of the brief.

19 It is clear from the indictment, however, that Musliu is indeed charged

20 with all of the murders in Counts 7 and 8. True, he was not charged with

21 "personally participating in or aiding and abetting" the Annex I murders,

22 but that refers to just two of the applicable modes of liability. As is

23 clear from paragraph 28 and Counts 7 and 8 of the indictment as a whole,

24 Musliu is charged with planning, ordering, and instigating those murders

25 as well as with participation in JCE and superior responsibility under

Page 7308

1 Article 7(3).

2 Now, I don't know if I need to belabour this point, but I would

3 note that Musliu's suggested reading of those counts would leave Limaj

4 completely uncharged with any of the murders in Counts 7 and 8. That is

5 obviously unreconcilable with paragraph 28 and the language of the counts

6 themselves. Finally on this issue, I note that in paragraph 30 of

7 Musliu's pre-trial brief he denied responsibility for the deaths of all

8 14 men named in connection with Counts 7 and 8. He thus knew from early

9 in these proceedings that he was and is charged with both the Annex I and

10 Annex II murders.

11 Second, throughout his section of the Defence final brief, Musliu

12 seeks to minimise the evidence against him by distinguishing between

13 evidence against Isak Musliu and evidence against Qerqiz. This is a

14 false distinction, of course. Musliu has never denied using the

15 pseudonym Qerqiz, and there has been no suggestion during trial of any

16 other Qerqizes in the camp or in Lapusnik more generally, as far as I am

17 aware.

18 The Prosecution submits that there are three broad categories of

19 evidence that can and should be considered in determining Musliu's

20 responsibility. First, that evidence which identifies him by name or

21 from a photograph as Isak Musliu; two, or second, that evidence which

22 refers to Qerqiz; and third, that evidence which, as is set out in our

23 final brief, describes a person who very closely matches the description

24 of Isak Musliu, both in terms of his physical characteristics and also

25 other identifying information such as his karate experience. We submit

Page 7309

1 that all of this evidence should be considered by the Trial Chamber and

2 accorded whatever weight is deemed appropriate, but it should be

3 considered in determining his role in the JCE and his responsibility

4 under Articles 7(1) and 7(3).

5 Your Honours, this is probably an appropriate time to break.

6 JUDGE PARKER: Very well. We will resume at 10 minutes to 6.00.

7 --- Recess taken at 5.29 p.m.

8 --- On resuming at 5.52 p.m.

9 JUDGE PARKER: Mr. Black.

10 MR. BLACK: Thank you, Your Honour. First I'd like to make one

11 small correction to the record. It's at page 39 of the LiveNote

12 transcript. I referred to Prosecution Exhibit 129 as P245 tab 2, but in

13 fact it's tab 3. So it's a minor point but I just wanted to clarify

14 that.

15 Your Honours, in the time that's remaining for me I'd like to

16 address three additional arguments made in the Defence final brief. The

17 first is a minor legal issue. The Defence attack us for arresting in our

18 opening that an accused could be found to aid and abet a JCE. However,

19 as they essentially concede, the Appeals Chamber decision which finally

20 clarified the relationship between participation in a JCE and aiding and

21 abetting and distinguished between those two things, that decision came

22 down after this trial started. The argument is not pursued in our final

23 brief, just to be clear on that.

24 The second --

25 JUDGE PARKER: We take it you do not question, then, the outcome,

Page 7310

1 as reflected in the Appeals Chamber decision?

2 MR. BLACK: Not at all, Your Honour.

3 JUDGE PARKER: Thank you.

4 MR. BLACK: The second issue is more significant. The Defence

5 suggest in their final brief that several Prosecution witnesses were

6 kidnapped for personal reasons, essentially unconnected with the armed

7 conflict. My first point in response would be that the Appeals Chamber

8 in Tadic made quite clear that the commission of a crime for "purely

9 personal motives" does not exclude that crime from the jurisdiction of

10 this Tribunal so long as the jurisdictional requirements are met. And

11 you can find that discussion at paragraphs 248 to 252 of the Tadic

12 Appeals judgement. Second, the evidence is clear in this case that the

13 crimes committed against these individuals were closely connected to the

14 conflict regardless of the personal motives of the actual kidnappers.

15 The evidence demonstrates that the witnesses at issue were kidnapped by

16 members of the KLA, they were then taken to KLA headquarters en route to

17 the camp, they were transferred to a KLA camp in Lapusnik, and there they

18 were interrogated about Serb spies in their villages and other

19 collaboration topics. Moreover, Ramadan Behluli testified in this

20 courtroom that he considered two of them to be collaborators. The

21 connection to the affirmed conflict and particularly the KLA's policy on

22 collaborators could hardly be stronger. A closely related argument by

23 the Defence suggests that these witnesses were kidnapped by rogue

24 elements. However, there's no question that the kidnappers were members

25 of the KLA, and it hardly seems plausible, in our submission, that rogue

Page 7311

1 elements would process the victims through local KLA headquarters before

2 transferring them to a centralised KLA facility housing prisoners from

3 all over the region. It simply defies reason.

4 Turning then to my last issue. The Defence argue in their final

5 brief at several places that collaborators targeted by the KLA were

6 people actively involved with the Serbian authorities, thus apparently

7 suggesting that the prisoners in the Lapusnik camp were actually

8 collaborators. None of the Albanian victims who testified in this case

9 were cross-examined about whether they were actually collaborators, with

10 the possible exception, I guess, of some suggestions made to Witness

11 L-96. So we're left somewhat uncertain about just what the Defence

12 position is. But in any event, as addressed by Mr. Whiting earlier, the

13 evidence was overwhelming that in reality charges of collaboration were

14 based on a much broader range of activities which included ordinary

15 business and social contacts with Serbs. This comes through in a number

16 of ways in the evidence, including but not limited to the communiques,

17 the testimony of Jakup Krasniqi and Ramadan Behluli; the evidence about

18 Ramiz Hoxha and Selman Binici; the detention of Witness L-07; the

19 interrogation of victims at Lapusnik -- for example, one was asked why he

20 had sold wood to Serbs; also from the testimony of Susanne

21 Ringaard-Pedersen; the notes concerning Witness L-96 which were found in

22 Lapusnik which are viewed at tab 5 to Prosecution Exhibit 245; and also

23 by the notes found in Fatmir Limaj's apartment which refer to murder

24 victim Lutfi Xhemshiti, and those are in evidence as Prosecution Exhibit

25 P30.

Page 7312

1 Furthermore, Your Honours, it is undisputed that there were

2 absolutely no KLA procedures for determining who was in fact a

3 collaborator or for reviewing any such determination. Indeed, one of the

4 things that comes across from this case is the fundamental importance of

5 procedural safeguards, particularly in connection with detention

6 facilities. There was no such thing as due process in the Lapusnik

7 prison camp. I hasten to add, however, that this entire issue of process

8 and "actual collaborators or real collaborators" is relevant only to the

9 charges of imprisonment. I do not understand the Defence to argue that

10 the other crimes alleged in the indictment from inhumane conditions

11 through to torture, beatings, and extra judicial murder could ever be

12 justified against any prisoners, regardless of the suspicions or charges

13 against them.

14 Your Honours, those are the issues that I planned to address. In

15 a moment, Mr. Nicholls will address some issues relating to armed

16 conflict and widespread and systematic attack under Articles 3 and 5.

17 But let me say in conclusion: As in any criminal case, the Prosecution

18 bears the burden of proving these charges beyond reasonable doubt. We

19 accept that burden and we have satisfied it and we would ask the Trial

20 Chamber to find the accused guilty as charged. Thank you very much.

21 JUDGE PARKER: Thank you, Mr. Black.

22 When it's convenient.

23 MR. NICHOLLS: Thank you, Your Honours.

24 As Mr. Black said, I'm going to briefly address the topics of

25 armed conflict and some of the evidence relating to the widespread or

Page 7313

1 systematic attack.

2 First, armed conflict. The law is quite clear in this regard,

3 and I will spend just a little time discussing the legal standards in

4 this case. The test which is laid out well in the Milosevic Rule 98 bis

5 decision from last year is as follows, this is at paragraph 16 to 17:

6 "The test for an armed conflict consistently applied within this

7 Tribunal was set forth in the Tadic jurisdiction decision: An armed

8 conflict exists whenever there is a resort to armed force between states

9 or protracted armed violence between governmental authorities and

10 organised armed groups or between such groups within a state."

11 The Milosevic Chamber concluded that this test there calls for an

12 examination: 1, of the organisation of the parties to the conflict; and

13 2, the intensity of the conflict. The Milosevic Trial Chamber explained

14 the purpose of this test as follows: "The main purpose of the Tadic test

15 is to distinguish an armed conflict from banditry, unorganised and

16 short-lived insurrections, or terrorist activities, all of which are not

17 subject to international law."

18 That is the extent of the inquiry necessary to establish an armed

19 conflict for purposes of Articles 3 and 5 of the Statute. It's not

20 necessary for Your Honours to determine whether the conflict was internal

21 or international in character. Now, this Trial Chamber recognised that

22 in the Strugar judgement at paragraph 216, writing that Article 3 of the

23 Statute is applicable regardless of the nature of the conflict,

24 international or internal. And of course the same is true of Article 5,

25 as provided for in the text of the article.

Page 7314












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Page 7315

1 In a moment I'm going to outline some of the evidence presented

2 at trial which proves that the Prosecution has met its burden, satisfying

3 both prongs of the Tadic test. The evidence in this case has shown that

4 the armed conflict in Kosovo during the indictment period was of a scale

5 far above banditry, unorganised and short-lived insurrections or

6 terrorist activities.

7 First, though, I'll address some of the legal arguments put forth

8 by the Defence in their brief regarding armed conflict. It's clear from

9 the jurisprudence of this Tribunal that Article 3 of the Statute covers

10 violations of Common Article 3 to the Geneva Conventions, and Common

11 Article 3 of course being applicable to internal armed conflicts. In

12 Strugar, the Chamber held that it's well established at Article 3 of the

13 Statute, covers violations of Common Article 3. And that's at paragraph

14 219.

15 In paragraph 205 of their brief, the Defence purport to address

16 the intent of the drafters of Common Article 3 regarding its application

17 by reference to the ICRC commentary to Common Article 3, and the Defence

18 then in the next paragraph list the helpful criteria contained in the

19 commentary. Now, I'm not going to read through the commentary and the

20 criteria which are set forth in the brief and which I'm sure Your Honours

21 are well aware of. But I note that the Defence have omitted from their

22 joint brief the crystal-clear statement in the commentary regarding the

23 ICRC's view of the nature of the criteria and the application of Common

24 Article 3. And I'll briefly discuss that view because as the Defence

25 have correctly suggested, the commentary is an indicator of the intent of

Page 7316

1 the drafters of Common Article 3.

2 The ICRC's characterisation of the criteria and the application

3 of Common Article 3 is as follows -- before listing the criteria, the

4 commentary states:

5 "...these different conditions, although in no way obligatory,

6 constitute convenient criteria," and then they continue to list them.

7 After listing these several criteria the commentary states:

8 "The above criteria are useful as a means of distinguishing a

9 genuine armed conflict from a mere act of banditry or an unorganised and

10 short-lived insurrection. Does this mean that Article 3 is not

11 applicable in cases where armed strife breaks out in a country but does

12 not fulfil any of the above conditions which are not obligatory and which

13 are only mentioned as an indication? We do not subscribe to this view.

14 We think, on the contrary, that Article 3 should be applied as widely as

15 possible. It's plain, therefore, that the helpful criteria are not

16 requirements, they're not elements which must be established before the

17 protections and the obligations of Article 3 attached to an internal

18 armed conflict, and that this was the intent of the drafters.

19 Let me just briefly quote what the Milosevic Chamber held

20 regarding this very issue, that's at paragraph 19 of the same decision.

21 In this regard the Trial Chamber observes that the ICRC's commentary is

22 nothing more than what it purports to be, i.e., a commentary, and only

23 has persuasive value. The ICRC commentary sets out a more extensive list

24 of criteria than the Tadic test, which may be considered when determining

25 whether an armed conflict exists. But the ICRC itself states that these

Page 7317

1 different conditions, although in no way obligatory, constitute

2 convenient criteria. As such, the ICRC criteria are neither definitive

3 nor exhaustive and Common Article 3 should apply as widely as possible.

4 Nevertheless, Your Honours, I believe the evidence shows, though not

5 obligatory, definitive, or exhaustive, that these criteria have been met

6 in this case.

7 Additional Protocol II. The Defence spends some part of their

8 brief discussing the application of Additional Protocol II to the 1949

9 Geneva Conventions to this case. Again, the Milosevic 98 bis decision

10 makes clear that the only test applied in this Tribunal is the Tadic test

11 and that there is absolutely no burden on the Prosecution to satisfy the

12 requirements of Additional Protocol II. As an example, in paragraph 36

13 of the Milosevic decision the Chamber held that the ability of the KLA to

14 exercise and maintain control over a part of the territory of Kosovo is

15 not a requirement for the existence of an armed conflict. Again, Your

16 Honours, although it's not required, the evidence shows that these --

17 that the criteria of Additional Protocol II have in fact been met in this

18 case.

19 Finally, Your Honours, the Defence argues beginning at paragraph

20 67 -- paragraph 184, page 67 of their brief, that "the present case is

21 covered by Additional Protocol I." They refer there to the Protocol

22 Additional to the Geneva Conventions of 1949 and relating to the

23 protection of victims of international armed conflicts. I only say, Your

24 Honours, this is a bit of an odd argument for the Defence to make, for

25 Additional Protocol 1 applies to armed conflicts. If it applies to this

Page 7318

1 case, it applies to an armed conflict in this case. I said some moments

2 ago, it's absolutely immaterial whether that armed conflict is internal

3 or international. The jurisdictional element of armed conflict for

4 purposes of our Statute is satisfied in either case.

5 I would also draw your attention to the findings of Peter

6 Bouckaert and the other lawyers of Human Rights Watch and Susan Ringaard

7 Pedersen and the OSCE-KVM, that in fact the conflict in Kosovo was an

8 internal armed conflict, subject to Common Article 3 and the Additional

9 Protocol II. Human Rights Watch found that a state of internal armed

10 conflict existed in Kosovo from 28 February 1998. And I note, Your

11 Honours, the Defence brief is therefore inaccurate at paragraph 345 where

12 the last sentence asserts that there is "no indication" that

13 international observers on the ground in Kosovo during the indictment

14 period viewed the conflict as rising to the level of an armed conflict.

15 That assertion is false.

16 In addition, Mr. Bouckaert stressed in his testimony here during

17 cross-examination that Human Rights Watch sought to implement

18 international humanitarian law within its established boundaries, not to

19 push those boundaries, for fear that doing so would undermine or dilute

20 the protections of international humanitarian law. And that's at

21 transcript reference 5546.

22 Lastly on this issue, it should be borne in mind that the KLA

23 frequently pledged that it respected and would abide by international law

24 in an effort to garner support from the international community. One

25 example: KLA spokesman Jakup Krasniqi in his testimony here

Page 7319

1 authenticated P142, which is an official KLA communique of 29 April 1998.

2 That communique states: "We are in a state of war... the KLA recognises

3 and respects the international treaties of the United Nations and the

4 conventions on war. We appeal to the international decision-making

5 centres, the European Union, and especially the USA, to increase pressure

6 on our occupiers in the name of peace and to support the just war of our

7 nation."

8 Further, Krasniqi authenticated as genuine in Exhibit P48, an

9 interview he gave on the 11th and 12th of July 1998 in which he stated:

10 "The KLA recognises the Geneva Convention and the conventions governing

11 the conduct of war."

12 Testifying about this interview, Mr. Krasniqi stated that in fact

13 at this time, mid-July, the KLA had received written materials regarding

14 the Geneva Conventions. The question was:

15 "Q. First of all, I want to ask you about what you saw in this

16 answer about the 'internal rules for our operations,' which 'clearly lay

17 down that the UCK recognises the Geneva Conventions and the conventions

18 governing the conduct of war.' Were those rules written down at this

19 time? Did you have the written rules that you're referring to here?"

20 Mr. Krasniqi's answer:

21 "A. Yes. The International Red Cross had sent us some concrete

22 documents which the KLA should respect these Conventions. It was a

23 document that we circulated at this time; that's why we say here that the

24 KLA has not dealt with civilians."

25 Finally, Fatmir Limaj testified that he was present with Jakup

Page 7320

1 Krasniqi during a meeting with Jan Kickert on 30th of July in Klecka, at

2 which time Krasniqi prejudiced that the KLA would respect its

3 responsibilities under international law. And Limaj also testified that

4 in July he personally possessed written instructions from the ICRC

5 concerning the treatment of prisoners. That's at transcript 6563 to 64.

6 Looking now at the facts, at the evidence, of armed conflict in

7 this case. The evidence proves beyond reasonable doubt that during the

8 indictment period the organisation of the parties to the conflict -

9 Serbian forces on the one hand and the KLA - and the intensity of the

10 conflict were well both above of a scale of that necessary to distinguish

11 an armed conflict in Kosovo from banditry, unorganised and short-lived

12 insurrections, or terrorist activities. I'll briefly look at both prongs

13 of the test.

14 We don't dispute that the KLA was not as organised and developed

15 at the VJ in its organisational structure. And there is no requirement

16 in the jurisprudence of this Tribunal requiring a level of organisation

17 equivalent to that of a professional army. Even under the higher

18 standards set forth in Additional Protocol II, there is no requirement of

19 a hierarchical command equivalent to that of a professional army. In

20 interpreting Additional Protocol II the ICTR in the Musema case held

21 that: "Furthermore, the armed forces opposing the government must be

22 under responsible command. This requirement implies some degree of

23 organisation within the armed groups or dissident armed forces, but this

24 does not necessarily mean that there is a hierarchical system of military

25 command similar to that of regular armed forces." That's at paragraph

Page 7321

1 257.

2 And indeed, it is likely that in virtually all internal armed

3 conflicts, those subject to Common Article 3, that the rebels or

4 insurgents are going to be less organised and less well armed in

5 comparison to the regular armed forces. And these are just the conflicts

6 that Common Article 3 is intended to apply to.

7 And as well here today, Mr. Whiting has covered the command

8 exercised by Fatmir Limaj during the indictment period. I will not

9 repeat those facts, other than to say that the evidence proves and has

10 been laid out that Mr. Fatmir Limaj was an effective commander of

11 soldiers organised into units. He commanded an organised armed group.

12 That command is of course only a part of the overall KLA forces that were

13 organised in the summer of 1998.

14 For example, Sylejman Selimi, when he testified here spoke about

15 how he was appointed commander of the Drenica zone by the General Staff

16 at the end of May 1998. The Drenica zone, which is perhaps, the evidence

17 has been, the most advanced zone, extended south to the Pristina-Peja

18 highway and Lapusnik. Selimi testified that immediately upon taking

19 command he began consolidating the existing units into brigades and he

20 appointed commanders. On the other side of the Pristina-Peja highway the

21 soldiers of the Celiku 3 were organised in a system, as we've heard today

22 again, of five fighting positions, each of which had a commander for that

23 position. Ruzhdi Karpuzi who had been assigned to position 1 of Celiku

24 3, as Mr. Black said authenticated the Celiku 3 position 1 logbook that

25 was found in Lapusnik at the end of July. He explained that that book is

Page 7322

1 a record of the round-the-clock, 24-hour-a-day surveillance of the

2 highway and the checkpoints. So there we have continuous surveillance by

3 soldiers assigned to shifts under the position commander, and keeping

4 records of all movements on the terrain.

5 Selimi also confirmed that units on either side of the

6 Pristina-Peja highway communicated with each other as necessary regarding

7 the highway, sometimes by radio or otherwise if they were close, and that

8 unit commanders would order that permits were issued to soldiers in order

9 to allow them to cross the highway when necessary. And of course, KLA

10 travel permits also found in Lapusnik in July 1998 have been introduced

11 into evidence. That's at P245, tab 8.

12 Selimi also admitted during his testimony, somewhat reluctantly,

13 that KLA commanders had the disciplinary power to take the weapons away

14 from KLA soldiers for misconduct, and to eject them from their units.

15 Although, as the Defence state in their brief at paragraph 306, Selimi

16 claimed that disciplining his subordinates was not necessary because all

17 the soldiers followed his orders.

18 Another issue covered in the trial is the procurement of weapons

19 by the KLA. Control of the Pristina-Peja highway was important to the

20 KLA. According to Selimi, the strategy of the KLA was to keep control of

21 this highway as a corridor for arms and weapons from Albania as well as

22 to prevent incursions along the Pristina-Peja highway by Serb forces.

23 Another witness with first hand knowledge, L-95, in the beginning of his

24 testimony described the executions of missions into Albania for the

25 purposes of obtaining arms for the KLA and bringing them back to his

Page 7323

1 headquarters. That's at transcript reference 4185 to 4192. Again,

2 demonstrating the ability of the KLA to organise the procurement and

3 distribution of arms.

4 John Crosland also testified from his experience on the ground

5 about the ability of the KLA as early as March 1998 to organise the

6 importation of weapons. He was commenting at one point on the contents

7 of a United Kingdom diplomatic telegram which concerned combat on the

8 24th of March, 1998, in Decane municipality, which is on the western

9 border of Kosovo. Crosland stated:

10 "This was just an indication that the conflict, having spread

11 from the area of the Drenica just to the west of Pristina, was now coming

12 over to the western side, which was not -- was nothing unusual to us

13 because it was clear from an early stage that reinforcements and

14 resupplies were coming in over the Albanian border, what I would call the

15 corridor, through to Decani and then on into Klina and then on into the

16 Drenica to supply men in the eastern area with the equipment to continue

17 the conflict against the Serbian security forces."

18 Crosland also testified in addition to bringing in arms and men

19 that the soldiers brought in through this corridor had been trained for

20 combat in Albanian camps. Limaj himself recounted a conversation he had

21 in June 1998 with Jakup Krasniqi, who told him that almost the entire

22 General Staff had engaged in procuring weapons because the question of

23 weapons was the number one question. So they were all interested in

24 getting as much weapons as possible and arming people who wanted to get

25 armed.

Page 7324












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Page 7325

1 If I could come back just for a moment to Witness L-95. He also

2 testified about the organisation of the KLA headquarters and the prison

3 facilities that he was familiar with in another area of Kosovo. I'm not

4 going to talk in detail about that testimony, which is found at 4247 to

5 4277. However, I suggest to Your Honours that the testimony of this

6 witness provides evidence of very similar command and control structures,

7 headquarters, and prison facilities as those which are the subject of

8 this indictment.

9 Additionally, Your Honours, I'd ask you perhaps to look carefully

10 at the testimony of L-95 found at pages 4203 to 4244 regarding how he and

11 his unit were ordered to go and assist another unit which was in danger

12 of attack and the subsequent events and meetings that he observed.

13 The General Staff. The Defence in paragraph 276, this is an

14 on-and-off issue, question whether there was actually a KLA General

15 Staff. It's an incredible claim, especially as in paragraph 281 they

16 cite to General Staff member Rexhaj Selimi's testimony that during the

17 indictment period the General Staff would move around for security

18 reasons. That does not mean, as suggested by the Defence, that there was

19 no communication with the General Staff by commanders. Selimi again

20 testified that in May -- that at the end of May the General Staff

21 represented in person by Rexhaj Selimi, appointed him commander of

22 Drenica.

23 The spokesman for the KLA and member of the General Staff, Jakup

24 Krasniqi, testified in this trial that the General Staff had an armed

25 wing and a political wing and that he had always been a member of the

Page 7326

1 political wing. Krasniqi at page 3415 of the transcript told us how the

2 commanders in different zones had a duty to inform the General Staff

3 about events in their zones. Fatmir Limaj testified how in June he was

4 heartened to meet several professional military officers who had joined

5 the KLA and, in his words: "Via the General Staff they were observing

6 the terrain. And if I say, they were in a way surveying the terrain and

7 every unit."

8 Limaj continued to explain how one of these soldiers, Agim Qelaj,

9 took three or four of Limaj's soldiers to join soldiers that Qelaj had

10 selected from other units in order to bring them together into a special

11 intervention unit. Limaj testified that Qelaj trained and prepared these

12 soldiers. This testimony, the meeting of these officers with Limaj, is

13 corroborated by Defence witness Byslym Zyrapi.

14 Further, again, according to Limaj in his testimony here, during

15 the fighting in Orahovac in July, the General Staff assigned Agim Qelaj

16 as operations manager for Orahovac during the fighting. The evidence,

17 then, for the General Staff is that it had an armed wing; commanders

18 reported to the General Staff; the General Staff appointed Selimi to his

19 position of the Drenica commander; the General Staff engaged in procuring

20 weapons for the troops; the General Staff arranged for professional

21 military officers to survey the terrain and the units; and that this led

22 to the formation and training of at least one intervention unit, which

23 included soldiers from Limaj's command.

24 The General Staff was not, as claimed by Robert Churcher and the

25 Defence in their brief at paragraph 280, a mythical concept. And this

Page 7327

1 incorrect statement by Churcher, I would suggest, is just one of several

2 reasons why his testimony and report should be viewed with caution.

3 If I can quickly sum up. During the period covered by our

4 indictment, the KLA constituted an organised armed group for the purposes

5 of the Tadic test. The evidence demonstrates that the KLA was organised

6 in a fighting system of units and fighting positions, and that every

7 position had a commander. There were KLA headquarters and different

8 zones of operation. Units assisted other units when necessary. There

9 has been quite a lot of testimony about that, as well as L-95's testimony

10 that his unit was sent to do so by his commander. There is evidence that

11 soldiers were hand-picked to form a special unit. At the fighting

12 positions, at that level, things were organised into shifts around the

13 clock in order to monitor the terrain for troop movements and logbooks

14 were kept in order to record which soldiers were on duty and what

15 activity it observed from their positions. And I've covered just now the

16 activities of the General Staff in military matters.

17 Additionally, records were kept of the personal details of

18 soldiers and of the weapons issued to them; this was one of Ruzhdi

19 Karpuzi's duties in Lapusnik. Commanders had the power to discipline

20 soldiers by removing their weapons and ejecting them from the KLA. There

21 were medical facilities set up for KLA fighters, and of course there were

22 detention facilities built, including the one in Lapusnik. There is also

23 the evidence of oath ceremonies and of written regulations. Both Limaj

24 and Ramiz Qeriqi received these written regulations, this code. It's in

25 evidence as Exhibit P156. Qeriqi testified that he believed it came from

Page 7328

1 the General Staff and that he and Shukri Buja received it around June

2 1998. He wasn't sure of the date exactly, but in any event he remembered

3 for sure that it was before the July offensive. Qeriqi stated that it

4 was distributed to the soldiers to read. And Limaj here testified that

5 he received these regulations which he referred to as "a rule book" and

6 that he received it around the 22nd or 23rd of June and read it. The KLA

7 was an organised armed group under the first prong of the Tadic test.

8 The second prong, the intensity of the conflict. I think the

9 evidence here is very clear that the prolonged and intense nature of the

10 armed violence in Kosovo from May through July 1998 was of a scale far,

11 far above acts of banditry, short-lived or unorganised insurrections or

12 terrorist activities. I'll focus on some of the factors the Milosevic

13 Chamber looked to in determining that an armed conflict existed in

14 Kosovo. These are the length or protracted nature of the conflict, the

15 spread of clashes over the territory, the increase in governmental

16 forces, and the weaponry used by both sides. And in our case as well

17 there's been a lot of testimony about the increasing KLA forces and the

18 explosive growth in KLA membership after February/March 1998. In

19 addition, the Milosevic Chamber did not accept that there was any

20 requirement that the KLA be organised under a civil authority, nor that

21 it exercise control over territory. However, the Chamber found that in

22 any case, both of those non-essential criteria had been met.

23 As far as the protracted nature of the conflict, there was armed

24 conflict -- there was attacks by the KLA before May 1998, before the

25 indictment period. In his testimony before you, Jakup Krasniqi confirmed

Page 7329

1 operations conducted by the KLA in August and November 1997, which

2 included killing so-called collaborators and members of the MUP. Rexhep

3 Selimi, Defence witness, testified to taking part, in his words, a

4 synchronised KLA attack against 12 MUP stations on 11 November 1997 and

5 fighting Serb forces armed with a helicopter, armoured vehicles, and

6 tanks near Acareve on 26 of November, 1997.

7 Jumping now to the period after 26th of July and the fall of

8 Lapusnik. The armed conflict in Kosovo continued with great intensity,

9 John Crosland testified based on his personal observations of numerous

10 clashes between the KLA and Serbian forces from the end of July through

11 November 1998. At the end of July, he talked about in his testimony a

12 30th of July daily report from the Pec military department describing

13 strong and fierce resistance by the KLA to mopping-up operations being

14 conducted by the MUP together with the VJ in the area of Iglarevo,

15 Kijevo, and Junik. And Crosland testified that the fighting unit had

16 been going on for three months prior to the combat operation referred to

17 on the 30th of July report. He also testified about incidents of armed

18 conflict in August, September, and November and explained that his

19 testimony concerning the figure of 163 UCK attacks between 13 October and

20 20th November contained in a 23 November situation report from the

21 British embassy referred to KLA attacks of different degrees of severity.

22 That report is Prosecution Exhibit 92 at tab 42.

23 The spread of clashes over the territory. There has been much

24 discussion about that and that occurred primarily during the indictment

25 period. There has been a great deal of evidence accelerated the spread

Page 7330

1 of violent confrontations between the KLA and Serb forces across much of

2 Kosovo during the summer of 1998. By the end of March it was clear that

3 the armed conflict was spreading out of Drenica. John Crosland,

4 referring to the UK diplomatic telegram I talked about earlier from the

5 24th of March, 1998, testified that at that time the conflict was

6 spreading west towards the Albanian border along the weapons corridor.

7 According to Crosland, at the end of May there was also heavy fighting

8 continuing in Decani and Drenica, and as many witnesses have testified to

9 there was heavy fighting in Lapusnik at the end of May. Also at the end

10 of May, John Crosland testified that now the conflict began to spread

11 east from Drenica, in the other direction.

12 Your Honours also have in evidence numerous contemporaneous

13 documents from the Pristina Corps, the VJ, ECMM, KLA communiques that are

14 also useful in establishing the spread of armed violence over Kosovo.

15 These are discussed in Philip Coo's report and contained in the annexes

16 to that report. And I will discuss just a few of them.

17 The 13th of May report to the 3rd Army of Command by Major

18 General Pavkovic, commander of the entire Pristina core, makes clear that

19 in his assessment the conflict zone was spreading rapidly. And that's

20 Exhibit P92 at tab 17. That report is corroborated completely by ECMM

21 documentation and even KLA communiques, specifically communique number 47

22 from the same time period, 12th of May, which is entitled: "Our army has

23 broken the enemy's attacks and is extending the liberated areas."

24 This communique boasts of the KLA's success and its assessment of

25 the spread of combat operations matches that made by General Pavkovic.

Page 7331

1 During this same period, ECMM monitors on the ground in Kosovo reported a

2 dramatic intensification of KLA operations. Same time period, 15th of

3 May weekly assessment report described the escalation of the armed

4 conflict as follows: "Mobile team Belgrade's observations on the ground

5 hint that another crucial corner has been turned in Kosovo. The UCK

6 until a few weeks ago still a mystery with its structure, leadership,

7 tactics, and funding sources and political connections, widely unknown,

8 has come to life and into focus of public attention. From a more

9 defensive posture during the February and March clashes, the UCK has now

10 taken the initiative and is carrying the war to the Serbian security

11 forces. An example of the change in their tactics has been the closure

12 of the Pristina-Pec road, the main supply route for the Serbian security

13 forces, for more than four days."

14 And that's contained, I'm reminded to tell you by Mr. Younis, in

15 Philip Coo's report that's P230. It's in Annex D.

16 On 30 June 1998 the New York Times reported on the escalation of

17 the conflict and fighting between Serbian forces and the KLA in Lapusnik

18 and Belacevac in an article entitled "Serb forces open a major assault on

19 Kosovo rebels." The article states:

20 "'The Serbs believe this is the final offensive,' a Western

21 military observer said. 'But this is the third attempt since March by

22 the Serbian security forces to wipe out the rebels. Each attempt has

23 brought only an escalation of the fighting. So will this one.'" That's

24 P233.

25 The assessment by that anonymous observer proved to be correct.

Page 7332

1 Philip Coo testified that the facts asserted in that New York Times

2 article were corroborated by the VJ and ECMM documentation that he

3 reviewed when preparing his report.

4 In addition to the various battles in Lapusnik, which there has

5 been much testimony about, witnesses have testified to their

6 participation in or observation of clashes in other places from May

7 through July. These included Kroimire, Carraleve, Zborce, Petrastica,

8 Djakovica, Ponosevac, Junik, Grabanica, Ratkoc, Rahovec, and Luznica.

9 And the cites for those armed clashes are in paragraph 248 of our brief.

10 There has also been a lot of testimony, and I won't go over it,

11 about the Serbian offensive at the end of July 1998 when the VJ and MUP

12 launched a massive assault against KLA-held positions and territory

13 throughout Kosovo. The entire PrK was involved in the July offensive in

14 addition of course to specialised MUP units trained for armed combat.

15 The evidence fully supports the statement of military expert Coo

16 that from May 1998 Serb forces were engaged in armed clashes with the KLA

17 on a sustained basis over a large part of Kosovo. The assertion of the

18 Defence in paragraph 255 of their brief that "there were very few

19 instances of fighting in the whole of Kosovo up to the end of July 1998"

20 is just not true.

21 The response of Serbian forces to the escalation of the conflict.

22 I'll cover that very quickly. As Mr. Coo testified, the entire PrK was

23 put on full combat alert. Additionally, the forces of the PrK were

24 increased and its structure altered as the intensity of the conflict

25 increased. During the indictment period Belgrade supplemented the

Page 7333

1 brigades of the PrK with troops from the Belgrade-based 72nd Special

2 Forces Brigade and the 63rd Parachute Brigade, in addition to

3 establishing forward command posts for the Pristina corps as well as for

4 the 3rd Army in Kosovo.

5 Another Milosevic criteria. The weapons used by the parties.

6 Very clearly, the weapons used by both sides in this conflict were of the

7 type typically used in war, as opposed to police actions or terrorist

8 actions, although clearly, the Serbian forces had vastly superior

9 weaponry at their disposal.

10 The VJ and MUP combat units were armed with tanks, armoured

11 personnel carriers, helicopters, artillery, anti-aircraft artillery

12 systems, and all of these heavy weapons systems, except for helicopters

13 as far as I can tell, were used against the KLA positions in Lapusnik.

14 The KLA, we've heard, was armed with automatic rifles, sniper rifles,

15 heavy recoilless rifles or heavy machine-guns, rocket-propelled grenades

16 or RPGs, mortars, as well as with hunting rifles and revolvers and

17 home-made weapons.

18 Although it's not a requirement for the Tadic test, I'll briefly

19 address control of the territory by the KLA. As the armed conflict

20 intensified and spread, the KLA successfully seized control of

21 significant area of the territory in Kosovo. In the period before the

22 July offensive, the VJ and international observers agreed with -- that

23 the KLA were in control of an estimated 30 to 40 per cent of Kosovo. The

24 evidence shows that the KLA's successes were due to planning and were the

25 product of a strategy of linking KLA-held areas to expand their territory

Page 7334












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 7335

1 and, most importantly, to protect the flow of weapons and troops which

2 ran from Albania to Drenica.

3 According to Crosland, by late April 1998 the VJ was "genuinely

4 afraid of losing control of significant parts of Kosovo."

5 The VJ report of the 13th of May that I referred to earlier,

6 General Pavkovic's report to the 3rd Army, estimated that 30 per cent of

7 Kosovo was in control of the KLA, including the strategically important

8 Pristina-Peja road.

9 Peter Bouckaert testified here and Human Rights Watch found at

10 the time that from April through mid-July the KLA controlled about 40 per

11 cent of Kosovo.

12 John Crosland again in his testimony here agreed that as of 23rd

13 of June the KLA controlled 35 per cent of Kosovo but could mount attacks

14 in 65 per cent of Kosovo. Crosland explained that control of territory

15 was fluid during the war, as one side would move in, the other would

16 withdraw and vice versa. He called it back-filling the territory.

17 However, he confirmed that the figure of 35 per cent was accurate.

18 Now, this inherently fluid nature of the control of territory

19 during internal armed conflicts is specifically recognised in the

20 commentary to Additional Protocol Ii. I'll read a bit of the paragraph

21 which is the commentary to paragraph 1 of Article 1 of that protocol.

22 "In many conflicts there is a considerable movement in the

23 theatre of hostilities. It often happens that territorial control

24 changes hands rapidly. Sometimes domination of a territory will be

25 relative, for example when urban centres remain in government hands while

Page 7336

1 rural centres escape their authority. In practical terms, if the

2 insurgent armed groups are organised in accordance with the requirements

3 of the protocol, the extent of the territory they can claim to control

4 will be that which escapes the control of the government armed forces.

5 However, there must be some degree of stability in the control of even a

6 modest area of land for them to be capable of effectively applying the

7 rules of the protocol."

8 That degree of stability has been proven in this case: The KLA

9 controlled a large area of territory. They controlled roads and supply

10 lines. They set up checkpoints. They built fortified bunkers and

11 trenches along the front lines. They established clinics, cooking

12 facilities, places to store records, warehouses, detention facilities.

13 And of course the KLA successfully held Lapusnik for three months against

14 multiple assaults from the Serb forces.

15 In June, ECMM reported that by active operations and the arming

16 of the population in and around Malisevo, the KLA was trying to take

17 control of central Kosovo and that the so-called liberated area was

18 growing. According to a 16th of June ECMM report, the report notes that

19 Malisevo was central to this new liberated territory and these reports

20 were also in Annex D of P230. On 22nd June, the ECMM reported that the

21 KLA had made impressive gains in its control of the territory and

22 infrastructure. These ECMM assessments are supported by the testimony of

23 Defence witness Byslym Zyrapi, the former VJ and Bosnian army colonel.

24 Zyrapi here testified that Malisevo was the centre of the free zone. And

25 John Crosland testified that this had begun quite early, that already in

Page 7337

1 April 1998 the KLA's strategy was to link Drenica and Decani, two areas

2 where the Serbs have the least control.

3 When you look at all that evidence, those operations, that

4 control of the territory, the evidence shows the Defence is simply wrong

5 when it characterises the conflict as a series of shoot-and-run style

6 operations, as it does in paragraph 203. The evidence has established

7 both prongs necessary for the Tadic test.

8 I'll try to talk very quickly about some of the evidence now of

9 attacks on civilians. During the indictment period the KLA conducted

10 attacks over a wide area of Kosovo against Serb civilians as well as

11 Albanians loosely and arbitrarily labelled as collaborators. Mr. Whiting

12 and Mr. Black have already spoken quite a bit about this issue, and I'll

13 try not to repeat what they said. But confronted with this situation,

14 specifically in reference to the kidnapping of some of the victims in

15 this case, Ivan and Vojko Bakrac, Djordje Cuk, Stamen Genov, on the 29th

16 of June, ECMM reported that the ICRC and UNHCR were increasingly

17 concerned with the KLA strategy of kidnapping. Mr. Black has discussed

18 the crimes committed against victims in this case. Those crimes

19 represent only a fraction of the attacks on civilians by the KLA in 1998.

20 These attacks were not random. They weren't committed by rogue elements.

21 A very early example is the hand grenade attack carried out by Defence

22 witness and General Staff member Rexhep Selimi, who admitted to throwing

23 a hand grenade he said near, not at, a hostel for Serb refugees in

24 Pristina in 1996. Although he claimed that this attack was only meant to

25 sent Serb colonisers, in his view, a message and claimed that they should

Page 7338

1 thank him for letting them know that a war was coming.

2 Another example. During the indictment period, John Crosland

3 testified that the KLA regularly conducted attacks to kidnap Serb

4 civilians in the Klina region. Crosland testified that areas in the

5 vicinity of a KLA headquarters were particularly hazardous for civilians,

6 including Carraleve. Crosland said, "As regards Carraleve, it was a

7 UCK -- a KLA headquarters and therefore people going through that area

8 were liable to be hijacked and used for KLA activity."

9 Crosland was also familiar with KLA attacks on the Serb civilian

10 population in the Obiliq municipality in the Llap zone. He commented on

11 a VJ report of the 18th of June which reported the abduction of five

12 Serbs from an area near the Belacevac mine. That's Exhibit P92 at tab

13 26. Crosland testified that the mine was in an area with a mainly Serb

14 population, which was attacked out of Drenica by the KLA.

15 The danger from the KLA to the Serb civilian population in

16 Belacevac was such that the civilian population was forced to make a

17 choice between protecting themselves on their own against KLA attacks or

18 abandoning their homes. Crosland explained that the efforts of the Serb

19 population of Belacevac represented a classic case of Serbs arming to

20 defend their villages in order to avoid being forced to leave their

21 homes. This testimony from John Crosland -- should I stop now or go for

22 another two minutes?

23 JUDGE PARKER: As you prefer. You have, at the most, two

24 minutes.

25 MR. NICHOLLS: I'll make one more point, Your Honours, and that's

Page 7339

1 just this: That this testimony of Crosland is corroborated by the

2 findings of Human Rights Watch and the OSCE. Human Rights Watch found

3 that KLA operations - some KLA operations, not all - were apparently

4 intended to drive ethnic Serbs out of their villages and that there were

5 credible reports of ethnic Serbs being forced to leave the villages of

6 Jelovac, Kijevo, Leocina, Gorni Ratis, Maznik, Dasinovac, Veliki

7 Djurdjevak, Mlecane, Dubrava, Boksic, and Lugodjija. And because I've

8 mispronounced some of those, I'll tell you the reference is Exhibit P212

9 at tab 5 at K0364865. Finally, OSCE-KVM in their report "as Seen As

10 Told," which is in evidence as P150, concluded that one of the main

11 threats to the Serb community at this time was the UCK.

12 Thank you.

13 JUDGE PARKER: Thank you, Mr. Nicholls. We'll hear the balance

14 of your submissions in the course of tomorrow afternoon and Mr. Whiting

15 will finish. And it would seem we would be able to move on to the

16 Defence in the course of the day.

17 Thank you. We'll adjourn now until 2.15 tomorrow.

18 --- Whereupon the hearing adjourned at 7.00 p.m.,

19 to be reconvened on Tuesday, the 30th day of

20 August, 2005, at 2.15 p.m.