Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11027

1 Monday, 21 January 2008

2 [Prosecution Closing Statement]

3 [Open session]

4 [The accused entered court]

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

6 JUDGE ORIE: Good afternoon to everyone.

7 Mr. Registrar, would you please call the case.

8 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon to

9 everyone in the courtroom. This is case number IT-04-84-T, the Prosecutor

10 versus Ramush Haradinaj et al.

11 JUDGE ORIE: Thank you, Mr. Registrar.

12 Good afternoon to everyone after a relatively long time. We are

13 here to hear the final argument. The parties have filed their final

14 briefs, and an opportunity is given to them to further plead their cases,

15 but before we do so, I have a few, really a very few, practical matters to

16 deal with. First one is the registrar - and this should be on the record

17 now - the registrar has vacated P1124, P1125, P1128, and P1132 because

18 they were identical to other exhibits that were already admitted into

19 evidence. It's now on the record.

20 Second item concerns a video which was played in court on the 20th

21 of August, 2007, and the 22nd of August of that same year. On those days

22 the Prosecutor put in court a video to Witness Dunjic who has commented on

23 it. The video was referred to and introduced as being V000/6012 -- I made

24 a mistake, it's now well on the record - being P452; however, there is an

25 inconsistency because P452 is V000/6011. The correct exhibit number of

Page 11028

1 the video introduced as V000/6012 is D66. This correction is made so that

2 it is on the record that not P452, but instead D66 was played and put to

3 the Witness Dunjic on the 20th and the 22nd of August, 2007.

4 I move on to the next item which concerns Exhibit Number P921.

5 Due to a technical error, P921, which was used by the Prosecution with

6 Witness Rade Repic was incorrectly marked in e-court as being admitted.

7 For this reason it did not appear on the Chamber's record as requiring

8 clarification from the parties during the last housekeeping session. The

9 Prosecution has at no time pressed for its admission. The documents

10 contained in the exhibit are statements not taken for the purpose of legal

11 proceedings before the Tribunal, but they do concern acts and conducts of

12 the accused. As is explained in the decision of this Chamber of the 29th

13 of November, 2007, in relation to the documents tendered during the

14 testimony of Witness Stijovic, and I specifically draw your attention to

15 paragraph 11 of that decision, documents of the kind of P922 [sic] are not

16 to be admitted into evidence. Therefore, the Chamber, in view of what it

17 considered in paragraph 11 of this decision of the 29th of December [sic],

18 2007, is not inclined to admit P921 into evidence and corrects the status

19 of this exhibit as being marked for identification and not admitted into

20 evidence.

21 I move on to the public versions of 92 ter statements. An e-mail

22 has been sent to the parties dealing with the question how public versions

23 of 92 bis and 92 ter statements should be made accessible to the public.

24 The next item deals with the testimony of Witness Fazliu. The

25 Chamber has invited the parties to agree on what portions of the testimony

Page 11029

1 of the transcript of Mr. Fazliu could be made public. The Chamber has

2 received no input from the parties; therefore, we could not establish

3 whether there was any agreement. The parties received an e-mail today in

4 which they're again invited to reach an agreement, but not only that the

5 Chamber even has made a proposal in that e-mail for the parties to

6 consider whether they can agree on it or not. The parties are invited to

7 see whether they can reach an agreement and inform the Chamber not later

8 than Wednesday, this Wednesday, and before we adjourn so that the Chamber

9 could, if there's agreement but even if there's no agreement, that the

10 Chamber could give an order to the registry to make public certain

11 portions of the evidence of the Witness Fazliu.

12 Last point I have on my list is the filing of revised briefs that

13 include corrigenda. It has been suggested that together with corrigenda a

14 new revised brief would be filed. The Chamber for several reasons has

15 turned down such a suggestion and will continue to do so. Of course

16 corrigenda should be filed, but both for very practical reasons such as

17 from what copy of the final brief we're working, on what copy you've made

18 your annotations; but apart from that, also for reasons of several

19 thousands of pages to be reproduced, people working on it, distributing

20 it, and we're really talking about many, many thousand of pages if a

21 document of some 400 pages would have to be refiled and redistributed.

22 For that reason, the Chamber, although it fully understands that -- I

23 think especially Defence of Mr. Haradinaj would prefer to have the perfect

24 versions on the record, that for these practical purposes the Chamber

25 denies any further suggestions in that respect.

Page 11030

1 I can add to that that if I would have made a mistake I also would

2 very much like to have a fully correct version filed, but sometimes we

3 have to live with the imperfect.

4 These were the practical matters I wanted to raise before I give

5 an opportunity to the parties to -- for closing arguments. The time

6 schedule has been: Prosecution, three hours; Defence, four and a half

7 hours in total; Prosecution's rebuttal argument, one hour; Defence

8 rejoinder arguments, one and a half hours. I'll strictly keep you to the

9 time-limits.

10 Yes, whether I misspoke or whether it's not correctly put on the

11 record, page 2, line 16, a reference was made to "P921" where it reads

12 "P922." And page 2, line 19, if I referred to the 29th of December, 2007,

13 then it was a mistake because it should be the 29th of November, 2007.

14 This being corrected, I give an opportunity to you, Mr. Re, to present

15 final arguments.

16 MR. RE: Before commencing, could I briefly announce the

17 appearance of the Prosecution lawyers here. There's a reason. I have a

18 new lawyer who hasn't been introduced before. David Re, with trial

19 attorneys, Gramsci Di Fazio; Philip Kearney; Gilles Dutertre; Legal

20 Officers, Katrina Gustafson, Rut Ley; Associate Legal Officer,

21 Romana Schweiger, and introducing to the Court Mr. Will Bryne, Assistant

22 Legal Officer, who's not wearing a robe. That's who's here present in

23 court. Thank you, Your Honours.

24 JUDGE ORIE: Thank you, and although at a late stage, welcome in

25 court for -- for you Mr. Bryne Please proceed.

Page 11031

1 MR. RE: Also to assist the Court we'll be using PowerPoint and

2 showing some exhibits and transcript excerpts which we will do in

3 Sanction, so I will cue that at the appropriate moment so that can be

4 displayed.

5 Now, we come to the end of the trial and after hearing days of

6 evidence, almost a hundred witnesses, almost 11.000 pages of transcript,

7 the Prosecution has concluded its case and, we submit, it has overwhelming

8 proved the guilt of the three accused, Ramush Haradinaj, Idriz Balaj and

9 Lahi Brahimaj of the crimes charged. They are guilty of the crimes of

10 persecution as a crime against humanity and the various other charges of

11 crimes against humanity and the alternative charges or the other charges

12 of war crimes. The Prosecution submits that for every count it has

13 charged it has proved the guilt of the accused.

14 What I want to start with is to take the Court, take the Trial

15 Chamber, which has heard all the evidence to the similarities in this

16 case. This case is a case of similarities, and these similarities are

17 those which will convict Haradinaj, Balaj, and Brahimaj of persecution as

18 a crime against humanity. The similarities are these: The victims all

19 fell within a pattern. Serb civilians left behind after the remainder of

20 the Serb population were expelled from Haradinaj's Dukagjini zone by

21 Easter 1998. Alleged or perceived Serbian spies or collaborators. The

22 bodies fit a pattern. The bodies were found together. Their injuries had

23 a similar pattern, they bore similar marks of mistreatment consistent with

24 torture, cruel treatment, and injuries you would expect to find if people

25 had been detained and tortured.

Page 11032

1 Of the 31 bodies found in the canal, 20 of those victims had died

2 of gun-shot wounds and the Defence does not dispute that. The bodies were

3 found in an isolated area next to Balaj's Black Eagles training ground.

4 That particular piece of land, isolated patch, is 1.94 kilometres in a

5 straight line from Haradinaj's house in an area that was then at the time

6 the bodies were dumped was firmly under Haradinaj's control.

7 Another similarity is that the bodies were found in virtually the

8 order in which they had been abducted or disappeared. We submit that

9 there are too many bodies of too many similar people, Serb civilians,

10 civilians on KLA wanted lists, Roma, alleged or perceived collaborators,

11 for it to have happened by chance. The bodies of two victims abducted by

12 Balaj personally were found together at the canal, that was the mother and

13 sister of Witness 4. The body of another last seen heading in the

14 direction of the canal, that's Sanije Balaj, was in the back of his jeep.

15 Balaj was taking the body in that direction and her body was found

16 directly on top of those two other people who had been kidnapped by Balaj

17 some months before.

18 The body of the victim Pal Krasniqi, who was tortured most

19 grievously in Brahimaj's detention centre at Jablanica, was found next to

20 a victim, Sali Berisha, whose father Misin was on a KLA wanted list.

21 There are simply too many similarities here for these acts to be random.

22 There are far too many coincidences for these crimes to have occurred by

23 chance by actors unknown to each other acting alone. The only conclusion

24 is that they must have occurred pursuant to a common criminal purpose.

25 There is no other explanation.

Page 11033

1 The area was then firmly under Haradinaj's control. The murders,

2 abductions, tortures, and other crimes are pleaded, and we submit proved,

3 could not have occurred without Haradinaj's knowledge or his complicity.

4 It is so important that the Trial Chamber views the evidence in its

5 totality and not as Haradinaj's counsel submits or ask you to, to try and

6 examine each count separately and to base your decision upon looking at

7 each case separately and in isolation because it's only when you view the

8 entirety of the evidence against the three accused, each count, and you

9 put them together, that the evidence of the pattern emerges. It's then

10 that you begin to see the whole picture. Once you see the whole picture

11 you understand the impossibility of these 40 murders occurring by chance

12 or by coincidence. They simply could not have.

13 It's also very important to view the persecution pleaded in the

14 indictment and proved at trial in the historical context of the events in

15 Kosovo at the time with the military development of the KLA. As we've set

16 out in our brief in the introduction, in the background section, 1998 was

17 a year of enormous turmoil in Kosovo. Albania was in chaos, its economy

18 in ruins, its armouries looted, and weapons were flooding across the

19 border into Kosovo. Against that background, the Serbian authorities were

20 taking increasingly legally repressive measures against the province's

21 overwhelmingly Albanian population. It is fair to say that Kosovo at the

22 time was awash with weapons. It was against this that the Kosovo

23 Liberation Army, known as the KLA or UCK, seized its opportunity.

24 But what had it been doing for the previous four or five years?

25 In that time, the KLA had been mounting low-level terrorist attacks

Page 11034

1 against the Serbian state, its supporters, and civilians. In that period,

2 the KLA had killed police, attacked police stations, assassinated

3 municipal officials, and attacked Serbian refugee settlements, such as

4 that at Babaloc, and the Trial Chamber has heard evidence of the KLA

5 attacks on Babaloc during the indictment period. But after attacking,

6 murdering, blowing up various Serb civilians and state officials, the KLA

7 proudly claimed responsibility in a series of communiques it was issuing

8 from 1994 through to 1998. It actually took responsibility for the murder

9 of Serb civilians as a kind of warning to those who were living there.

10 And it was in 1998 with access to the Albanian weapons cache flowing

11 across the border that the KLA seized its opportunity to mount an armed

12 struggle against the Serbian authorities. Attacks escalated and the KLA

13 organized itself militarily. And then for the first time it represented a

14 real military threat to Serbia. Now, Serbia's response was increasing

15 force and escalating human rights abuses, leading to the KLA in turn to

16 retaliate and then a vicious cycle or circle of violence developed with

17 both sides retaliating against each other with increasing force.

18 The evidence has proved beyond reasonable doubt that - and without

19 any serious challenge from the accused - that by at least mid-April 1998,

20 an armed conflict had developed in the area of the subject of the

21 indictment. Unfortunately, as in many wars, civilians were the victim of

22 the -- were the victims of the armed conflict that developed in this area

23 by at least mid-1998, and in this particular conflict both sides committed

24 atrocities against the civilian population, both sides committed crimes of

25 persecution and other crimes against humanity and breaches of the laws of

Page 11035

1 war, similar to those pleaded in this indictment.

2 But the evidence establishes that the attacks against the

3 civilians in the Dukagjini area were particularly vicious and the conflict

4 came to involve, like many of the conflicts in the former Yugoslavia, what

5 is colloquially known as the ethnic cleansing of civilians from opposing

6 sides. But justice must be blind and perpetrators on both sides to the

7 conflict have stood trial before this Tribunal.

8 Unfortunately for the civilians, Serb civilians and perceived

9 opponents of the KLA, KLA members in the Dukagjin area led by

10 Ramush Haradinaj combined their armed struggle against the Serbian state

11 with an attack upon part of the civilian population. It was an attack

12 against Serb civilians generally and against Kosovo Albanians and Roma and

13 other civilians who were or were perceived to be -- even perceived to be

14 collaborating with the Serbian forces or opposing the KLA. In 1998, the

15 evidence has firmly established that the three accused were members of the

16 joint criminal enterprise pleaded in the indictment.

17 The common criminal purpose was the KLA consolidating control over

18 the Dukagjini area, but doing so by unlawfully expelling or mistreating

19 Serbs and other civilians perceived to be collaborating with the Serbian

20 regime or otherwise opposed to the KLA. Haradinaj, Balaj, Brahimaj, and

21 other participants in this enterprise, including Haradinaj's and

22 Brahimaj's brothers, enthusiastically and without mercy implemented its

23 common criminal purpose. Long-time Serb families were expelled from their

24 homes. Serb civilians were targeted for mistreatment, they were abducted,

25 they were murdered. Suspected collaborators were hunted down and were

Page 11036

1 murdered. By mid-April 1998, most of the Serb population had been driven

2 out of the area following the sustained attacks, violence and persecution

3 directed against them by those acting according to the common criminal

4 purpose.

5 As you heard during the evidence, the KLA used a compound deep

6 within its stronghold of Jablanica to detain and torture prisoners. The

7 accused, Lahi Brahimaj, had his own room there and personally participated

8 in the torture and mistreatment of KLA prisoners. Wanted lists and black

9 lists of suspected collaborators were created. The names of these people

10 were circulated at KLA staff meetings and among KLA village guards

11 monitoring the numerous check-points set up in the region. If captured,

12 the fate of those on the list was near certain death.

13 The following seven victims listed in the indictment, of which

14 you've heard evidence, were all on KLA black lists or were otherwise

15 wanted. I say "wanted" by the KLA. That's Istref and Nurija Krasniqi,

16 counts 21 and 22; Zenun Gashi, counts 19, 20; Misin Berisha, counts 19 and

17 20; Skender Kuci, counts 31 and 32; Sejd Noci, counts 21, 22; Witness 3,

18 counts 31, 32; and Sanije Balaj, Counts 21, 22.

19 The Baran valley KLA command which reported to Haradinaj

20 circulated a wanted list naming alleged collaborators Istref and

21 Nurije Krasniqi, Zenun Gashi, Misin Berisha, and Skender Kuci, and all

22 five were abducted and murdered by the KLA. The bodies of Istref and

23 Nurije Krasniqi, Zenun Gashi, Misin Berisha and his two sons were found

24 within metres of each other at the canal.

25 Haradinaj appointed Balaj, also known as -- or known to everyone

Page 11037

1 at the time as Toger, the lieutenant, to command a particularly notorious

2 KLA unit called the Black Eagles. This 30-or-so strong unit terrorised

3 its victims throughout the indictment period. Balaj reported directly to

4 Haradinaj. Balaj had his own personal black list kept in a notebook he

5 carried with him while looking for people on it. Balaj and Haradinaj

6 frequently met; they worked together. Balaj personally raped one victim

7 and abducted others. Balaj's unit trained and was based right next to the

8 canal where the bodies were found. As I mentioned before, the family

9 compound of the Haradinaj clan is a mere less than 2 kilometres across

10 open country from the canal. The main feature in 1998 when the bodies

11 were dumped there between the Haradinaj family compound and the canal was

12 Balaj's Black Eagles training site.

13 The bodies -- the evidence has proved that at least 40 victims of

14 the joint criminal enterprise were murdered in the indictment period. The

15 bodies of at least 31 of these were found at and down stream for an

16 obvious execution site at the canal that were found there in September

17 1998. The three accused do not contest that 20 of them died from gun-shot

18 wounds. The bodies of two missing Serb victims were found in the shallow

19 roadside grave also in KLA-controlled Dashinoc. The KLA controlled the

20 canal area from April 1998, coinciding with the disappearance of the

21 victims whose bodies were found there until Serbian forces temporarily

22 regained control of the territory in September 1998 and made the

23 particularly gruesome discovery of the bodies.

24 The KLA had a long-standing policy of attacking Serb civilians and

25 those it considered cooperating with the Serbian authorities. The Trial

Page 11038

1 Chamber can consider the evidence of the KLA's attacks on Serb civilians

2 and collaborators as evidence of the mens rea, that's the intention, the

3 persecutor intention of them the KLA participants in the localised joint

4 criminal enterprise in the Dukagjini zone in 1998. Now, the KLA

5 communiques issued in -- between 1994 and 1998 make very, very chilling

6 reading. In evidence, if this could be displayed in Sanction, is a KLA

7 communique, number 13, of June 1995. Now, in that, as you can see on the

8 screen, it refers, first of all, to an attack upon a Serbian police

9 station in April, but then, in a far more sinister fashion it goes on:

10 "Two houses recently built for Serb and Montenegrin colonizers were mined

11 in the beginning of May. The explosions in Junik are a warning to the

12 colonizers which accept to comply with the ethnic cleansing exercised by

13 Belgrade."

14 It then goes on: "The Serbian spy Bexhet Mucaku was assassinated

15 the last week of May."

16 And finally in a very chilling and sinister warning to the

17 minority Serbian population in Kosovo: "We appeal to the Serbian civil

18 population to think carefully about their future in Kosovo and not

19 participate in the occupying military and police troops organized against

20 Albanians!"

21 Now, Zoran Stijovic, who was the chief Serbian state security

22 analyst in Pristina testified, both to the accuracy of these communiques

23 and the fact that the things which they had spoken about happened.

24 Another one which bears dwelling on for a moment was issued on the

25 20th of November, 1997, a few months before the armed conflict in the

Page 11039

1 Dukagjini area in Kosovo, communique number 39. And it refers

2 specifically to the KLA central staff carrying out "an armed operation on

3 Qamil Gashi ... After several unsuccessful warnings were given to him

4 regarding the damages he had caused to the national issue. He was a

5 parliament member of Serbia, official of Serb Socialist Confederation of

6 the Municipality of Gllogovc and a missionary of the Serb invader against

7 the civilian war."

8 Now these communiques, and there are many of them, quite

9 eloquently demonstrate the persecutor intention of the KLA and its members

10 towards Serb civilians by making deliberate attacks on people they

11 considered to be collaborators with the Serbian state.

12 The attacks continued. Mr. Stijovic testified in this trial of an

13 enormous increase in the number of attacks between 1992 and 1998. In his

14 statement in evidence, Exhibit P931, at paragraph 20, he describes the

15 attacks increasing from eight in 1992 to 11 in 1993, four in 1994, nine in

16 1995, 31 in 1996, 75 in 1997, and through to 30th of November, 1998, some

17 1.486 attacks. As he describes at the beginning of that paragraph: "The

18 terrorist attacks in 1995, 1996, and 1997, against the police and against

19 Albanians who did not support the agenda of the separatists increased

20 dramatically."

21 His further tabulation is shown at paragraph 62 of his statement,

22 also in evidence at Exhibit P931, in which he broke down the 1486 attacks

23 until 30th of November, 1996. He tabulated the deaths of 90 Albanian and

24 Serbian citizens, 105 MUP members, and 37 VJ, that's Serbian or FRY

25 military members, 481 people were wounded, of whom 96 were civilians, 283

Page 11040

1 were MUP, and 102 were VJ. But during the same period and consistent with

2 the evidence you have heard about abductions, 221 persons were kidnapped

3 and the fate of most of those remained unknown.

4 Now, it is in the context of the KLA's existing behaviour towards

5 Serb civilians or, as they termed them, colonizers, that the criminal

6 motivation of those participating in the joint criminal enterprise in the

7 Dukagjini area must be viewed.

8 Now, what I wish to turn to before going into greater detail about

9 the involvement of the three accused is the location of the mass grave

10 along the canal. And we've printed out some copies of the large

11 photographs of the canal which were marked by Professor Aleksandric, and

12 perhaps if they could be distributed to the Trial Chamber and Defence

13 counsel at the moment. The question that you must ask yourself is: Why

14 did the KLA dump the bodies of its murder victims by this particular

15 canal?

16 Now, the canal area is too long to show in one photograph with any

17 detail. The first photograph on the scene shows where the first group of

18 bodies were located. The second photograph which shows the downstream

19 area, shows where the other group of photographs were located. Now, if

20 you ask yourself: Why did the KLA dump the bodies there? Why did the KLA

21 just not bury them in a pit at Jablanica or Gllogjan? But if you examine

22 the location and if you look at where it is and where it fits in, you'll

23 see that it fits the classic picture of a mass execution or a mass grave

24 site. The grave site was located far enough away from KLA focal points,

25 such as the Haradinaj family compound, the Gllogjan KLA headquarters, the

Page 11041

1 Black Eagles headquarters in Rznic, not to attract attention from

2 international observers, but it was located deep within KLA-controlled

3 territory. The area is a natural dumping-ground for bodies if you look at

4 it. It's isolated. It's hard to get to. It would have been hard for the

5 Serbian forces to get into it, and the evidence is they only got there in

6 a very large joint military operation in a September, a joint MUP and VJ

7 military operation. And importantly, it was near impossible for

8 international monitors who were in the area, such as the ECMM, that's

9 European Commission Monitoring Mission; the OSCE; or the Humanitarian Law

10 Centre from Belgrade; or the British and American military attaches, such

11 as Colonel Crosland who gave evidence here, it was near impossible for

12 them to get into this area, guarded as it was by Balaj's Black Eagles

13 training ground on one side and numerous KLA check-points, trenches and

14 fortifications around the others.

15 Now, it's also important to view the proximity of this particular

16 location to the Haradinaj family compound. And if you look at the

17 photograph on the screen now which we've also handed round, the line has

18 been drawn which shows it is 1.94 kilometres in a straight line from the

19 Haradinaj compound to the location, and that area, as I said before, was

20 under KLA control. This was an area which one could not just stumble

21 into. However, its existence was no secret at the time to those in the

22 area, but nor could it be. Numerous people were aware of what was going

23 on there.

24 Now, turning to the joint criminal enterprise itself, the

25 Prosecution has proved that between March and September 1998 in pursuing a

Page 11042

1 common criminal purpose, Haradinaj, Balaj and Brahimaj and other KLA

2 members acting pursuant to it created a "free zone," in the Dukagjini

3 area, in which KLA forces could move and operate freely. It established a

4 military structure under Haradinaj's ultimate military and civilian

5 authority in that zone, and as I mentioned earlier conducted a campaign of

6 violence and persecution against KLA opponents.

7 Now, what was Ramush Haradinaj's role within the joint criminal

8 enterprise and in pursuing the common criminal purpose? As the

9 Trial Chamber has heard, Haradinaj is a strong, powerful, and charismatic

10 individual. Some witnesses regarded him then, and still do, as an idol.

11 One witness said there was an expression: God in heaven; Haradinaj on

12 earth. He was a strong and dominant presence throughout the Dukagjini

13 Zone throughout the indictment period. He was the KLA's military leader

14 there and the most powerful individual in the indictment period in the

15 Dukagjini Zone. He organized military operations, he commanded them, he

16 controlled them, but also he took control of civilian affairs. Now,

17 Haradinaj misused this position and he misused it to further the common

18 criminal purpose. Haradinaj himself was instrumental in establishing,

19 implementing, and maintaining the system of violence and persecution

20 against perceived collaborators and KLA opponents in 1998. And without

21 his participation, it could not have existed. His degree of control over

22 both civilian and military matters in the zone in 1998 were such that the

23 persecutions, the murders, tortures, abductions, rapes of Serb civilians

24 and perceived opponents could not have occurred without his approval.

25 The mistreatment and persecution was so widespread and so

Page 11043

1 systematic that it could only have occurred with his approval. He

2 established, supported, and was in overall command of the components, the

3 main components of this system. The main structural instruments of this

4 system included Balaj's Black Eagles, Brahimaj's detention centre, and the

5 military police. But Haradinaj can exert at what can be described as a

6 curious degree of power over both civilian and military matters. He moved

7 constantly in the zone. He maintained extensive contact with KLA village

8 commanders and other KLA officers. He engaged at a very detailed level in

9 military matters. He himself personally ordered the assignment and

10 transfer of individual soldiers and units, arming and weapons

11 distributions, medical treatment, and the collection and distribution of

12 supplies, military training, and the financing and distribution of funds.

13 He personally approved weapons -- weapon-collecting trips to Albania and

14 back.

15 On the 24th of June, 1998, showing his power within the zone,

16 Haradinaj ordered the mobilisation of all men aged between 19 and 35. The

17 very minutes of that meeting prove his level of involvement in calling

18 meetings, setting agendas, chairing them, issuing orders, receiving

19 reports, controlling the discussion. The evidence proves that he had an

20 exhaustively detailed knowledge of events and operations throughout that

21 area. The evidence also proves that he led military operations throughout

22 the area. The KLA subzone commander, Cufe Krasniqi, testified at page

23 5811 of this. Another commander, Shemsedin Cekaj also testified of how

24 Haradinaj was often at the front lines. His degree of military

25 involvement and control is shown by the fact that he hand-selected his

Page 11044

1 commanders in the area. He appointed Balaj, as I've said before, to

2 command the Black Eagles; Rrustem Tetaj and Shemsedin Cekaj as village

3 commanders; Din Krasniqi, and that's an important name in this case as the

4 commander of Baran valley; Faton Mehmetaj, a name I'll return to later as

5 a commander of the military police; Nazmi Brahimaj as the deputy; and

6 another name I'll return to later, Pjeter Shala as the commander of Dujak,

7 he appointed him on the 2nd of July.

8 Haradinaj had extensive contact with Din Krasniqi in Vranoc.

9 Krasniqi reported to Haradinaj and took orders from him. Pjeter Shala

10 testified of Haradinaj's personal authorisations. He said: "I don't know

11 the exact time, but I went to Gllogjan for every piece of document that I

12 needed." That's at page 9980.

13 Another example which is Exhibit P1266 is of Haradinaj's signing

14 KLA registration certificates. This one on the screen now in Albanian

15 showing his signature, and in English, shows him issuing a certificate to

16 a businessman from Pristina, Shefqet Cemaj [phoen] on the 4th of July and

17 having them issued with two bombs.

18 The briefs at paragraph 156 sets out how Haradinaj warned and

19 dismissed subordinates at the least sign of disloyalty, including the

20 proposed expulsion of Nazmi Brahimaj [sic] for having committing an "act

21 of treason" by leaving his post contrary to Haradinaj's instructions. The

22 level of control exercised by Haradinaj also necessary for him to

23 participate in the joint criminal enterprise is also shown by the way he

24 gave himself ultimate civilian authority in that zone in the indictment

25 period. Documents tendered into evidence prove that Ramush Haradinaj

Page 11045

1 personally controlled matters such as health care, registration of births

2 and deaths, vehicle registration, travel permits and civilian movement,

3 and he even controlled woodcutting, personally issuing permits allowing

4 individuals to cut wood.

5 On the 22nd of July, he went so far as to forbid anyone in that

6 area from consuming or selling alcoholic beverages. Such was his degree

7 of control over all matters civilian and military that he prohibited not

8 just the military but civilians from consuming and selling alcohol, that's

9 Exhibit P246. Haradinaj also established KLA control over the movement of

10 the civilian population with a -- with an intricate system of village

11 check-points. Travel authorisations were issued by KLA village

12 commanders, who of course reported to Haradinaj. Exhibit P146

13 demonstrates how on the 24th of June Haradinaj expressly issued an order

14 in which he expressly prohibited the movement of the civilian population

15 without permission from the relevant KLA headquarters. Paragraph 7 of

16 that reads, and it's on the screen: "The movement of the combatants,

17 military officers, and the population within the region of responsibility

18 of the Operational Headquarters of the Plain of Dukagjinit is prohibited

19 without the permission of the command of the relevant headquarters."

20 On July 9th, 1998, at a work meeting of his own staff, and again

21 proving the level of interest shown by Haradinaj in the movement of

22 civilians within his zone, he emphasised that permits should be issued

23 only for one trip to one village. Now, a sinister reason, the evidence

24 has proved, existed for this degree of interest in the movements of

25 civilians, one trip to one village and so on, because controlling the

Page 11046

1 movement of civilians in this manner allowed the KLA to easily locate and

2 detain perceived collaborators and KLA opponents, which was part of the

3 common criminal purpose of the joint criminal enterprise. Now, this is

4 directly proved by the number of victims in this indictment, of which

5 you've heard much evidence, who were taken into custody at KLA

6 check-points, they include in Counts 5 and 6, Stanisa and Rosa Radosevic

7 and Novak Stijovic; in Counts 17 and 18, Tush and Illira Frrokaj; Counts

8 21 and 22, Sanije Balaj and Sejd Noci; Counts 27 and 28, Witness 6; and in

9 Counts 29 and 30, Nenad Remistar.

10 On the 2nd of July, Exhibit P158, Haradinaj went so far as to ban

11 political parties or organizations. Now, the order you can see on the

12 screen in front of you is headed: "Executive Order."

13 And it says: "It is banned any political activity from any

14 political party or association of a political nature in the Operational

15 Zone of Dukagjini Plain. We order the abolition of political parties

16 until the full liberation of the country."

17 As you can see in the Albanian the order is issued and bears

18 Haradinaj's signature.

19 Another example of Haradinaj's interest in civilian matters is an

20 order issued on the 28th of July authorising Fadil and Bekim Betiki

21 [phoen] - sorry, if I pronounced that wrongly - to supply foodstuffs in

22 that area, salt, sugar, oil, and pasta. In that order Haradinaj is

23 authorising who can supply normal foodstuffs to the population in the

24 Dukagjini area. A handwritten note which is an order which is Exhibit

25 P127, signed by Nazim and -- Nazmi Brahimaj and Ramush Haradinaj simply

Page 11047

1 refers to the transfer of one Fadil on the 9th of June, 1998, from

2 dispensary facilities to one for better facilities. The purpose of

3 showing this one is to demonstrate the degree of interest that Haradinaj

4 and others accused in participating in the joint criminal enterprise

5 showed in the minutia of life in the Dukagjini Zone in July 1998.

6 Another thing shows his control, influence, command, control, and

7 authority is the detention on the 11th of August, 1998, of the ECMM

8 monitor, Achilleas Pappas. On that date, Idriz Balaj stopped and detained

9 him and several other ECMM monitors, accusing him of being a Serbian spy.

10 Balaj took Pappas' group of suspected spies to the Gllogjan headquarters.

11 There Balaj, himself, personally beat this Greek air force captain and

12 international monitor's Albanian interpreter, no doubt because of his

13 involvement or association with a suspected Serbian spy, albeit one with

14 diplomatic immunity. Pappas testified that: "Balaj started beating and

15 kicking the interpreter, calling him names, and making some gestures like

16 he was trying to get the gun from his waistcoat and shoot him."

17 Now, after that Haradinaj arrived and interrogated the members of

18 the group before allowing them to leave. Pappas in his statement before

19 this court Exhibit P271 at paragraph 26, described those who detained him

20 and the monitors as extremists, that was the third group of KLA people he

21 had met in Kosovo and here he refers to: "The group that abducted us."

22 He said: "They acted separately within a certain area, which they had

23 totally under their control. They had their leader, whom they were

24 following in an obedient manner, without questioning his person or orders.

25 By saying this, I refer to the person of Ramush Haradinaj. Before

Page 11048

1 Haradinaj appeared, the other soldiers were rude and behaving in a bad

2 way. Once he appeared, they started to calm down and behaved in a more

3 normal way. I point out, however, that I only saw Ramush Haradinaj issue

4 an order twice. The first order was given when he was searching the car

5 and a group of soldiers, including a woman, arrived and saluted him."

6 Going down: "The second was when he ordered the three black

7 uniformed men who had abducted us, including Idriz Balaj, to escort us

8 away."

9 Now, fundamental to Haradinaj's control of the zone and the

10 implementation of the common criminal purpose was his deliberate - and I

11 emphasise deliberate - neglect of internal KLA discipline in relation to

12 the known crimes committed against civilians. During the indictment

13 period he established no system, absolutely no system, of military courts

14 or internal discipline; rather, he used the military police to further the

15 common criminal purpose. Haradinaj allowed his subordinates within the

16 KLA to operate throughout the indictment period with impunity from

17 prosecution or discipline throughout that time and throughout that zone.

18 It is important that not one of the 14 officer positions in his staff

19 related to military discipline.

20 An experienced former JNA officer, Rrustem Tetaj even testified

21 that he was unaware of any military disciplinary measures taken against

22 any KLA member in that area between May and September 1998. In fact, the

23 evidence proves that the only disciplinary measures that appear to have

24 been taken relate to acts of disloyalty. The evidence proves

25 overwhelmingly that Haradinaj took no measures against the KLA members who

Page 11049

1 committed the numerous crimes against civilians pleaded in the indictment

2 and proved at trial. Now, in the Prosecution's submission, this was not

3 accidental, it was entirely deliberate. Haradinaj had near absolute

4 authority in the zone where the crimes were being committed. Had he so

5 wanted to, he could have dismissed or otherwise disciplined KLA members

6 committing these numerous and known crimes against the civilian

7 population. Rather, he chose deliberately to further the common purpose,

8 the common criminal purpose, by permitting and encouraging KLA members to

9 commit these crimes. In fact, the only system of "discipline" implemented

10 by Haradinaj was the system of violence and persecution imposed against

11 civilians and civilians who were perceived as collaborators. The focus of

12 the KLA command in imposing what it called "disciplinary measures" for

13 perceived anti-KLA activity is in fact illustrated by the minutes of the

14 meeting of the Dukagjini staff held on the 24th of June, and the evidence

15 proves that Haradinaj never investigated or punished the notorious

16 disappearances in his area of control.

17 For example, the case of Witness 6, who was imprisoned and

18 tortured in the Jablanica detention centre in June 1998 provides a clear

19 example of how it operated in practice. After six weeks of detention and

20 torture, Nazmi Brahimaj eventually released this prisoner by giving him a

21 release permit saying that pursuant to KLA regulations, this is Exhibit

22 P355, the staff, operative staff, has decided that the accused, that is

23 Witness 6, shall be released. His release is conditional; if he repeats

24 his mistake, he will be prosecuted.

25 The KLA military police service was absolutely integral to the

Page 11050

1 joint criminal enterprise. Now, unlike any normal military police

2 service, the role of this police service, rather than being there --

3 rather than existing to enforce military discipline, existed to hunt down

4 its suspected or the KLA-suspected opponents. The evidence has proved

5 conclusively that Haradinaj had a close working relationship with the

6 military police and the military police could not have committed the

7 crimes without his imprimatur. Haradinaj even proposed its governing

8 regulations.

9 Exhibit P140 shows the regulations of 3 and 4 showing that it had

10 the task of "investigating and in uncovering with persuasive facts all

11 those persons who collaborate in any way with the enemy."

12 Regulation 4 said: "The military police is obliged to take

13 measures against all those working against the KLA."

14 Haradinaj appointed his loyal subordinate, a name I mentioned

15 before, Faton Mehmetaj, as its commander. Rrustem Tetaj, a KLA

16 sub-commander explained to the Chamber that Mehmetaj black-listed people

17 who were suspected of being disloyal to the KLA, sympathizing with the

18 opposition LDK or having worked with the MUP or other authorities and

19 Mehmetaj circulated this black list amongst KLA village guards. Now,

20 these were guards who operated the system of check-points in controlling

21 the movement of the civilian population. The evidence has proved that the

22 KLA military police detained and mistreated and/or murdered at least five

23 victims in the indictment, Kemal Gashi, Zenun Gashi, Sanije Balaj,

24 Naser Lika and Fadil Fazliu, all for their alleged collaboration or

25 opposition to the KLA. Each of these victims shared the characteristics

Page 11051

1 which illustrate the nature of Haradinaj's system of persecution. None

2 was a KLA member. Each was alleged to be a collaborator or KLA opponent.

3 The three who were murdered after detention by the KLA military police

4 were last seen alive around Baran. Each of their bodies, that's R-1, 2,

5 and 4, which should be displayed on the screen now, were disposed of

6 approximately 10 kilometres away in the same group of bodies found in the

7 canal in September 1998.

8 Now, while of course all of this was occurring, KLA military

9 police were detaining, abducting, mistreating, and even murdering

10 opponents of the KLA, Haradinaj was reporting to the General Staff in

11 Exhibit P224 that, it's coming up on the screen: "We have formed the

12 military police and it is functioning well."

13 We will find that exhibit in a moment, it's 224 and it's the last

14 page in the English. I repeat those words. At the time this was

15 occurring Haradinaj was reporting to the General Staff of the KLA: "We

16 have formed the military police and it is functioning well."

17 Well, for the purposes of the common criminal purpose of the joint

18 criminal enterprise it was doing its job very, very well, as the evidence

19 has established.

20 Several days later, on the 1st of August, 1998, Haradinaj ordered

21 all local headquarters of the Dukagjini Zone to assist this very same

22 military police which was doing its job so well. And you can see the list

23 of duties, one of which is: "To act against the enemy in response to the

24 needs of the front lines."

25 The other one is: "To assist the military police."

Page 11052

1 By that order, Haradinaj was encouraging KLA local staff to assist

2 the military police in carrying out its function, its part of the common

3 criminal purpose of the joint criminal enterprise.

4 As mentioned before to implement the common criminal purpose of

5 the joint criminal enterprise Haradinaj needed to eliminate opposition to

6 his forces within the Dukagjini Zone. Now, the brief also describes in

7 detail the conflict between the armed forces of Kosovo, that's the FARK,

8 and the KLA when FARK soldiers crossed from Albania into Haradinaj's zone

9 in June -- in late June, 1998, that's at paragraphs 156 through to 167.

10 As mentioned, the common criminal purpose required his control over the

11 zone and the crushing of any opposition. And the more moderate an

12 opposition supporting FARK represented a potential threat to Haradinaj and

13 his control over the zone. And it was during the period that the FARK

14 were in his zone between June and August 1998 that Haradinaj and other

15 participants in the joint criminal enterprise continued with their

16 persecution of perceived collaborators and civilian opponents of the KLA,

17 imprisoning them and torturing them at Jablanica, circulating wanted lists

18 of collaborators, some of whom of course ended up buried by the canal.

19 Now, Haradinaj and Balaj's personal confrontation with FARK

20 soldiers on the 4th of July is illustrative of how they, that is,

21 Haradinaj, Balaj, and other members of the joint criminal enterprise,

22 dealt with this potential threat posed by FARK to their common criminal

23 purpose. Their expressed view was: The FARK forces had to leave. Now,

24 FARK soldier, Witness 29, testified about the attitude of Haradinaj's KLA

25 soldiers to the FARK. He said at page 3499: " ... I was told that if we

Page 11053

1 did not go back to Albania, Mr. Haradinaj, together with his officers and

2 soldiers under his command, would fight us first and then the -- sorry,

3 would fight us first and then the Serb forces. By this I mean they would

4 kill us all first and then fight the enemy."

5 He went on at page 3496 and he said: " ... During the meeting

6 between Mr. Haradinaj and Mr. Tahir Zemaj," that's the FARK commander,

7 we've heard a lot of evidence about the confrontation or the involvement

8 between Tahir Zemaj and Haradinaj, "what was said was that, You don't need

9 to come to Kosova. You have to go back where you came from. Kosova

10 doesn't need you. Kosova doesn't need the armed forces of the Republic of

11 Kosovo or FARK. If you don't go back, we will fight you. We will not

12 fight the enemy. We will leave the enemy, and we will fight you."

13 But it goes on. On the 4th of July, Witness 29 and three other

14 FARK soldiers were forcibly abducted by Idriz Balaj and Ramush Haradinaj's

15 brother Daut Haradinaj and taken to Gllogjan, where they met Ramush

16 himself. After what was described as an initially warm reception

17 Haradinaj pistol-whipped one of the FARK soldiers and then led a brutal

18 beating of the four men by a group of between 20 to 30 KLA soldiers. The

19 Trial Chamber heard evidence from Witness 29 that during the beating

20 Haradinaj personally shot the witness in the right shoulder. The Witness

21 testified at page 53 -- sorry, 3530 in relation to Haradinaj trying to

22 shoot him in the neck.

23 "He wanted to hit me on the neck, but because of the movement that

24 I was doing at the time, the bullet hit my arm and not on the neck where

25 he wanted to hit me."

Page 11054

1 Witness 29 continued -- after his beating finished he was asked:

2 "Now, how long did the beating last?"

3 He said he couldn't say. "It started suddenly. It ended suddenly

4 ... So both the starting moment and the ending moment were sudden." But

5 then he said after the beating finished this is what he saw: "At that

6 time, I saw they were dragging the other soldiers by their hair.

7 Daut Haradinaj and Idriz Balaj were dragging them by their hair and

8 beating them at the same time. They were dragging them towards the

9 village of Gllogjan."

10 And further at page 3531 after the attack stopped suddenly he

11 said, that's at line 14: "When the attack stopped, I saw Idriz, Petrit,

12 and Azem being dragged by their hair by Daut and Balaj who had been beaten

13 with Kalashnikovs and with the butts of the pistols, also punching and so

14 on. They were dragging them towards the headquarters."

15 "And where was Ramush?"

16 "At that time," said Witness 29, "Ramush still had his pistol in

17 his hand. He kept that in his hand all the time and he said to me: 'You

18 only got two minutes to leave the village of Gllogjan. And walk straight,

19 straight along the main road. You've only got two minutes to leave the

20 village.' While the other soldiers were taken into the headquarters of the

21 Gllogjan village which was Haradinaj's headquarters."

22 THE INTERPRETER: Could Mr. Re speak a little slower while he's

23 reading. Thank you very much.

24 JUDGE ORIE: Mr. Re, since you are not having your earphones on,

25 you got a message from the interpreters.

Page 11055

1 MR. RE: I will slow down. I apologise.

2 Tahir Zemaj himself reported the attack to the Supreme Command on

3 the 5th of July in Exhibit P167. Now, what was Haradinaj's personal

4 participation proved at trial? The evidence has proved that Haradinaj

5 misused most egregiously his position of command. It could be described

6 as setting a tone of acceptable violence in the Dukagjin area; however,

7 the tone he set was very loud or very high. He took personal acts of

8 violence against those he perceived as opposing the KLA as I've just

9 described with the FARK soldiers. The acts proved with brutal -- these

10 acts proved with brutal clarity his approval and encouragement of the

11 elimination and perceived opposition by his subordinates through fear and

12 violence. He, Haradinaj, could not have sent a clearer message to his

13 subordinates within the KLA and to the civilian population.

14 One example is his personal participation in the attack by his KLA

15 subordinates on his Serbian neighbours and their cousins -- and their

16 cousin, sorry, on the 18th of April, 1998, which is charged in Counts 3

17 and 4. The evidence has proved that by Orthodox Easter 1998, virtually no

18 Serb families remained in the Gllogjan area, and it's also proved that

19 Ramush Haradinaj took his own personal steps to ensure that this was the

20 case. He took personal steps to mistreat and to expel his own Serb

21 neighbours from Dubrave which is right next to his house, family compound,

22 in Gllogjan.

23 Your Honours heard the evidence that Haradinaj had lived next to

24 Dragoslav Stojanovic a mere two years older than Haradinaj. They had

25 walked to school together, they grew up together next door to each other,

Page 11056

1 they knew each other well. What happened? On the 18th of April, 1998,

2 soldiers, KLA soldiers under Haradinaj's command, abducted, persecuted,

3 and tortured his neighbours, Dragoslav and Mijat Stojanovic and their

4 cousin, Veselin Stijovic, who were all Serb civilians. After that, they

5 were forcibly transferred from -- Stojanovic was forcibly transferred from

6 their home to Serb-controlled territory outside the Dukagjini zone.

7 Now, Dragoslav Stojanovic gave chilling testimony of Haradinaj's

8 personal presence in Gllogjan on that day. The evidence establishes that

9 about 30 KLA soldiers, including again Haradinaj's brother Daut, had

10 entered and searched the Stojanovic's house. They then forced three men

11 to lie face down on the floor and cursing their ethnicity kicked and beat

12 them with rifle-butts. The beating continued outside until

13 Nasim Haradinaj arrived and ordered them taken to KLA headquarters in

14 Gllogjan. Bleeding and seriously injured, the three were forced to walk

15 to the KLA headquarters in Smajl Haradinaj's house in Gllogjan about 1500

16 metres away. KLA soldiers beat and insulted them along the way, saying

17 that all Serbs should leave Kosovo. This is of course consistent with the

18 content of the KLA communiques, as shown before. Haradinaj was standing

19 nearby. He was personally present, and he must have seen the large group

20 of armed KLA soldiers forcing these three Serb civilians down the road in

21 broad daylight while beating them and cursing at them. His brother Daut

22 and two other KLA soldiers took these three victims to the upper floor of

23 the headquarters and accused them - and this is the common theme

24 throughout this case - of spying for the Serbs.

25 Now, of Ramush Haradinaj's personal presence and involvement

Page 11057

1 there, his neighbour, Dragoslav Stojanovic, testified at page 1886.

2 "You've just mentioned Ramush, did you see him at all there?

3 "A. Yes, but not in that room. Ramush came by later in the

4 course of that day with five or six other soldiers accompanying him. I

5 was lying on the floor in that corridor, since I was unable to move. I

6 wasn't allowed to move either. He came by with five or six of his

7 soldiers, they were his escort, I suppose, I don't know. He came in,

8 shoved me with his leg, and said, Hello neighbour, do you recognise me? I

9 said, No, I don't, and then he kicked me in the back saying that I would

10 eventually learn who he was."

11 Next question: "How hard did he kick you?

12 "A. Well," he said, "it seemed hard enough to me. At the time it

13 certainly felt hard enough since he was wearing those military boots."

14 That's displayed on the screen at the moment.

15 Now, of course Dragoslav Stojanovic knew exactly who Haradinaj was

16 and he had very, very good personal reasons for not admitting it in that

17 moment of fear in the state he was in. At page 1888 to 9, he told the

18 Trial Chamber when asked: "Did you in fact recognise him when he came in?

19 Answer was: "Yes, yes, I knew him well.

20 "Q. Why did you say, No, I don't recognise you, when he asked you

21 if you did?

22 "A. Because virtually we were one of the first to be arrested and

23 captured in the area. It was for fear of saying that I knew him. It was

24 for fear of getting killed, otherwise one of us could later have gone on

25 to the police and told them about it or something. One thing I must say,

Page 11058

1 he wasn't the only one to ask me at the time. His brother -- his cousins

2 came over, too, Padram, Smajl's son ... Came to ask me, Neighbour, do you

3 recognise me? I didn't answer any of them ... I said no to each and

4 every one of them.

5 "And then the son of Mustafa, he had been abroad quite a long

6 time, he came over that day and asked me the same question. I gave the

7 same answer to everyone, No, I don't know you."

8 The Trial Chamber has to ask itself what else could Mr. Stojanovic

9 have done in those circumstances. Fearing for his life, he felt the only

10 thing he could do to protect himself was to deny knowledge of his

11 long-time neighbour, Ramush Haradinaj. But Haradinaj's words are chilling

12 in the context of what occurred in this case because it showed his

13 recognition of who was now in control, who was responsible for expelling

14 the Serbs, who controlled and commanded that area. We, the KLA, are now

15 in control; you, Serb civilians, are out. And his words there are

16 entirely consistent with the evidence you have heard of the mistreatment,

17 persecution, and targeting of Serb civilians in the early status of the

18 indictment period.

19 Now, what of his injuries? Of his injuries Dragoslav Stojanovic

20 testified at page 1889 that he was severely injured. He said: "In

21 addition to having blood on my face from the beatings, I didn't have any

22 open wounds. As for my internal injuries, my pancreas was ruptured, my

23 stomach in two different places, the colon, the stomach walls were

24 crushed. You might say large-scale internal injuries, a whole lot of

25 pain, enormous pain, and this feeling of suffocation."

Page 11059

1 When asked: "Had you already sustained those injuries at the

2 point when Haradinaj kicked you, or did you sustain those injuries later,

3 or you can't say?"

4 He answered: "It must have been before."

5 The evidence proves that Haradinaj seeing his brutalized and

6 seriously injured neighbour lying on the floor in KLA captivity in KLA

7 headquarters in Gllogjan brutalized him further by kicking a defenceless

8 man who claimed not to know who Haradinaj was.

9 The "Spotlight" report of the Humanitarian Law Centre, that's

10 Exhibit P6, also refers to this incident which was well-known at the time.

11 I take you to paragraph 9.1 where you can see there's an extract saying

12 that: "Dragoslav and Mijat Stojanovic and their son [sic] Veselin -- were

13 seized by uniformed men and taken to headquarters in Gllogjan and it has

14 the testimony given to the HLC at the time of Mijat Stojanovic at the

15 time.

16 The meaning of Haradinaj's words to his seriously injured

17 neighbour became clear over the ensuing days as the KLA violently expelled

18 and murdered the few Serbs who still remained in the villages around

19 Gllogjan. And the evidence has proved that by the 23rd of April, five

20 days after Haradinaj, his brother Daut, and other KLA subordinates

21 mistreated so badly the Stojanovic brothers, his neighbours, and expelled

22 them from the house, the KLA had expelled virtually all remaining Serbs

23 from the villages around Gllogjan. Several of them were detained and then

24 taken to Gllogjan for beating or interrogation before being expelled,

25 Novak Stijovic and Stanisa Radosevic are examples. And the KLA as the

Page 11060

1 evidence proves murdered the few who stayed behind. These include sisters

2 Vukosava Markovic and Darinka Kovac, and Milovan and Milka Vlahovic,

3 Slobodan Radosevic and Milos Radunovic. After KLA members helped one Serb

4 family and its Serb neighbours flee Dashinoc on the 23rd of April,

5 Haradinaj showed his personally disapproval of allowing that Serbian

6 family to leave. The Trial Chamber heard testimony that Haradinaj went to

7 the village and publicly castigated a KLA member demanding to know why he

8 had allowed the families to leave the village unharmed.

9 JUDGE ORIE: Mr. Re, I'm looking at the clock. We are close to

10 one hour and a half. You spent until now 75 minutes. If you could find a

11 suitable moment for a break soon.

12 MR. RE: I will do.

13 A photograph of one of the families, Milos and Milka Radunovic,

14 that's the victims of Counts 11 and 12, is on the screen.

15 Now, Zoran Stijovic who I mentioned earlier in his statement

16 Exhibit P931 at paragraph 59, and he well knew this because he himself had

17 relatives living in the area, stated that ...

18 [Prosecution counsel confer]

19 MR. RE: By May 1998, no Serbs or Montenegrins lived or remained

20 in the villages of Dasinovac, Ratis, Ljumbarda, Prapacane, Maznik,

21 Rastavica, Rznic, using the Serb names. "More than 1.000 persons left the

22 areas of Klina ... The houses and property had been destroyed." He said:

23 "Of the attacks they were widely known and I was given estimates of the

24 numbers of refugees by my DB colleagues in the area. In short, the entire

25 Serbian and Montenegrin population fled their homes with great human and

Page 11061

1 material losses."

2 At paragraph 60 he referred to the Serb population from the

3 villages fled to the towns of Pec, Decani to Montenegro and beyond. In

4 May and June 1998, the fighting started to move closer to the towns. In

5 June, Decani was blockaded and under attack for more than three weeks.

6 KLA forces attacked the villages surrounding Klina, Pec and Istok, on a

7 daily basis, et cetera.

8 That's a suitable time.


10 We will have a break and we will resume at ten minutes past 4.00

11 sharp.

12 --- Recess taken at 3.47 p.m.

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

14 JUDGE ORIE: Mr. Re, you may proceed.

15 MR. RE: There's a -- thank you, Your Honour, there's a small

16 correction to the transcript at page 18, line 14, it says Nasim not Nazmi,

17 if that could be corrected or the other way around. Whatever it says, it

18 should be the other.

19 Also, welcome to the Court on the Prosecution side our legal

20 intern, Mr. Alex Paredes-Penades, who is also in court.

21 Before the break I was referring to what is colloquially termed as

22 ethnic cleansing in the Dukagjin area. I turn now to a meeting of the

23 Gllogjan staff that Haradinaj himself chaired on the 9th of July, 1998.

24 Now, consistent with KLA communiques 13, 18, and 23, all in evidence, that

25 describe Serbs as "colonizers," the opinion of the KLA members about the

Page 11062

1 presence of Montenegrins in the KLA "free zone" is shown by these minutes

2 which record the Dobrigje representative reporting to the meeting. The

3 minutes show or give evidence of the persecutory intent of those present

4 at the meeting, including Ramush Haradinaj. Referring to the situation

5 and for no other reason, I submit, other than ethnic reasons which go to

6 the mens rea of persecution. The minutes record the Dobrigje

7 representative saying: "We have two Montenegrin houses, ten people. We

8 are able to resort to weapons."

9 Now, what could that mean? In the context of the evidence the

10 Trial Chamber has heard about attacks upon Serb and Montenegrin civilians

11 and perceived collaborators, other than that these people were now under

12 direct threat by virtue only of their ethnicity by the KLA. And in fact,

13 it is no coincidence that within days the KLA had attacked these

14 Montenegrin families in Dobrigje and had abducted a Serb civilian,

15 Zdravko Radunovic who made the mistake of travelling to see these

16 Montenegrin relatives there. His body was found at the canal in September

17 1998.

18 Also on the issue of ethnic slurs which goes to persecutory

19 intention, Stanisa Radosevic testified of ethnic slurs he received from

20 KLA soldiers while they were beating him, this is at page 973 of the

21 transcript. He said: "They," that is, the KLA soldiers, "cursed our

22 Serbian mothers, asking us, "What do you want? Do you know who we are?

23 They told us all sorts of things. But most of all, they used abusive

24 language with respect to our Serbian mothers, claiming that this was their

25 land, What are you doing here, et cetera."

Page 11063

1 At page 974, consistent with the KLA modus operandi of those

2 acting pursuant to the common criminal purpose, he said of the beating:

3 "When I tried to protect Novak, he hit me with their fists," that's a KLA

4 soldier, "until I fell down, then they kicked me while I was down. When I

5 came around, they threw us on to the car, and they continued kicking us

6 and also using rifle-butts to hit us. I also received a blow with a

7 pistol butt on the head and my hand was bleeding."

8 Now -- and this part ties in with what happened to Sanije Balaj

9 and others who were on wanted lists.

10 "At that moment, they took away my address book, and for each

11 number or name in my book, whether that was a Serb or a gypsy or whoever,

12 I was beaten. They wanted to know everything about these people."

13 Again, when viewed in the historical context of KLA communiques

14 describing -- sorry, these must be viewed in the historical context of the

15 KLA communiques describing Serbs as colonizers in terms of the persecution

16 that occurred.

17 As another example --

18 JUDGE ORIE: Mr. Re, may I ask you a small question about the

19 correction you made at the very beginning.

20 MR. RE: Yes.

21 JUDGE ORIE: You said page 18, line 14 -- yes, it was a bit

22 unclear to me. You said -- the transcript now reads: "It says Nasim, not

23 Nazmi." On my transcript it appears "Nazmi." Nasim I would expect to be

24 Nasim Haradinaj, a name which appears often in the transcript, never

25 Nazmi. But then you said: "Whatever it says, it should be the other."

Page 11064

1 That is rather unclear language to me because what you say if it's

2 Nazmi it should be Nasim; if it's Nasim, it should be Nazmi. So would you

3 say it's Nasim but then Nasim is -- together with Brahimaj is not

4 something that sounds familiar to me.

5 MR. RE: Sit should say Nasim Brahimaj.

6 JUDGE ORIE: That's what it says.

7 MR. RE: It should say that. I don't know what happened. Maybe I

8 misspoke --

9 JUDGE ORIE: It reads Nasim --

10 MR. RE: Maybe it was misheard, but that's what it should say.

11 It's N --

12 JUDGE ORIE: But that's how it reads, isn't it? It reads Nasim.

13 MR. RE: No, that's Nazmi. It says Nazmi. It should be Nasim.

14 JUDGE ORIE: Nasim Brahimaj? Because if I search for Nasim, I

15 usually get Nasim as a first name together with Haradinaj as the last

16 name. So could you explain who Nasim Brahimaj is?

17 MR. RE: Excuse me, I will -- can I come back to that?


19 MR. RE: I will do.

20 JUDGE ORIE: Please proceed.

21 MR. RE: I move to the area of the topic of Haradinaj's and the

22 KLA's control over the free zone in the Dukagjini area. Now, the brief in

23 some detail in paragraphs 76 to 95 describes the creation of the KLA free

24 zone and its boundaries. As the Court heard, the evidence was more or

25 less consistent between Defence -- I'm sorry, between Serbian civilian and

Page 11065

1 KLA witnesses as to the area which the KLA controlled and when it

2 controlled it within the indictment period.

3 Now, I've mentioned earlier that the KLA fighters maintained

4 security in their free zone through check-points and observation posts.

5 And the KLA fighters were able to move about that zone freely and openly.

6 The extent of these zones or these check-points is shown by the testimony

7 of one KLA member, Shaban Balaj, who testified that: "Almost every

8 village within the area north and west of Lake Radoniq had a KLA

9 check-point up until September 1998."

10 Now, both KLA and international witnesses passed through numerous

11 check-points within the zone. You've heard testimony that some of these

12 check-points so close were the sides to each other at times were only 50

13 metres from the Peje-Gjakove road, and it was through these check-points

14 that the KLA controlled access to the Dukagjini zone. You've heard

15 testimony from witnesses who described the check-points as routine and

16 normal in that area. You've heard evidence of KLA village commanders

17 issuing travel permits to civilians to allow them to pass through these

18 check-points. But in the transcript and at trial a consistent answer

19 emerged to questions about Haradinaj's control over this area. For

20 example, British military attache, Colonel John Crosland, who was very

21 used to assessing those sorts of areas, that was one of the reasons he

22 travelled from Belgrade to Kosovo frequently, it was to assess the

23 strength of the KLA and Serbian forces and to monitor the situation, he

24 met Haradinaj personally in March or April 1998. And he testified of

25 Haradinaj's control at that point. As you can see on the screen, it

Page 11066

1 says:

2 "Q. What was your understanding about the extent of Haradinaj's

3 control or command when you met him?"

4 And he answered: "I think I'm right in saying he indicated that

5 he controlled what was called the Dukagjin area, which is the area I'd

6 explained and the importance of that area. And this was, I think, alluded

7 to or confirmed, whichever way you want to, in his assessment which had

8 been made by outside intelligence agencies."

9 Now, as I mentioned a moment ago, Crosland was well-placed to make

10 that assessment himself. Haradinaj was making the assessment, Crosland

11 was making the assessment, and it coincided with what the intelligence

12 sources were telling them. Now, that also coincided with Witness 29's

13 testimony, at page 3488. The question was: "During this time-period,

14 between March 24 and late June 1998, in your discussions with KLA soldiers

15 and village commanders, did you learn if there was a KLA overall commander

16 for the Dukagjini Zone?"

17 And he went on, I take you to the second line of the passage,

18 where it says: "Not the entire Dukagjini Zone was in a state of war," he

19 says: "But each and every one were saying that Ramush Haradinaj was the

20 overall commander."

21 Now, during this trial, the Presiding Judge, Judge Orie, asked

22 Colonel Crosland some very pertinent questions about the KLA command and

23 control, and Crosland testified at 3029, and it's on the screen now, about

24 the respective positions.

25 "The Serbs, likewise, took up the position that they could, if you

Page 11067

1 like, contain the fighters within this area by dominating the roads. I

2 don't agree with the strategy, but that was the way they did it.

3 "So the area remained -- the Serbian security forces would go off

4 the road a short way, make a raid, re-arrange a few houses rather badly,

5 and then withdraw back out because they didn't feel safe in the area.

6 Now, that was their way of dealing with localised incidents that happened

7 in and around these major proceeds from Pec to Klina down to Djakovica and

8 back up to Pec. So the roads provided the access, and not often -- I

9 mean, one of the major incidents was going -- the Serbs -- we were asked

10 to go with the Serbs to visit this supposed massacre site at Gllogjan,

11 beyond Gllogjan, on the water area" --

12 JUDGE ORIE: Mr. Re, you're reading.

13 MR. RE: Am I going too fast?


15 MR. RE: He went on: "Now, I don't think many of them went

16 further than, say, 5 or 6 kilometres off the road because they were going

17 into a territory that they really were not familiar with. So that is why

18 I've said that the area, in my opinion, and it is only my opinion, was

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

20 to dominate and influence areas by shelling into the area" --

21 JUDGE ORIE: Mr. Re.

22 MR. RE: "Long-range indirect fire by tanks or by armoured

23 personnel carriers or anti-aircraft vehicles."

24 Now, Defence counsel Mr. Emmerson put the question fairly and

25 squarely to KLA sub-zone commander to Shemsedin Cekaj at page 4486.

Page 11068

1 Mr. Emmerson's question was: "So, Mr. Cekaj ... I'm suggesting to you

2 that between" --

3 JUDGE ORIE: Mr. Re. Mr. Re, if you would slow down not just for

4 a second but slow down more permanently than the -- certainly the French

5 translation would be able to follow you.

6 MR. RE: "I'm suggesting to you that between the 26th of May, when

7 you arrived and the 12th of July when you left, there were Serb forces,

8 including paramilitaries, operating from time to time in the territory

9 along the canal?"

10 Completely dispelling this, Cekaj answered: "I have no

11 information about that. It was impossible for the Serbian forces to enter

12 there at that time."

13 Now, the importance of Gllogjan and control over that area for

14 both the common criminal purposes and the military purposes is shown by

15 Mr. Stijovic's statement at paragraph 25 where he said: "The KLA

16 organized the receipt and distribution of the equipment throughout Kosovo

17 and Metohija using the already established channels. Gllogjan and

18 Jablanica were strategically located on that route and, for this reason,

19 the Haradinaj family later assumed an important position within the KLA.

20 They had the ability to decide who was allowed to travel through their

21 area and who was not. KLA commanders from other areas had to seek

22 permission for their men to travel through this area on their way to and

23 from the Albanian border. The villages of Jablanica and Gllogjan became

24 KLA logistics bases of a sort, controlled by the Brahimaj and Haradinaj

25 families respectively."

Page 11069

1 At paragraph 61 of his statement, he gives further insight into

2 what was occurring there where he said: "As a result of these territorial

3 advances in April, May, and June, the KLA succeeded to a significant

4 degree in creating a single 'free zone' linking Drenica, Dukagjin, and the

5 Albanian border. The Albanian strongholds in the villages of Gllogjan,

6 Jablanica, Junik, Jasic, and Smonica had a special strategic importance in

7 this regard. Our sources indicated that most KLA weapons came from

8 Albania, either through black markets overseas, or from Bosnia and

9 Croatia. These weapons were mainly of Chinese or Yugoslav origin at the

10 outset, but the KLA came to have the most modern 'Armbrust'

11 rocket-launchers used by the NATO."

12 In relation to the strength or the intensity of the armed

13 conflict, the Trial Chamber heard a lot of evidence from KLA fighters,

14 international observers and you heard evidence from two Serbian retired

15 generals. I'll just take you briefly to the evidence of Mr. Stijovic in

16 relation to the weapons flowing into Albania where he said at page 9010:

17 "This is an official UN report from the summer of 1997 - that over 650.000

18 pieces of weapons, a vast quantity of weapons disappeared from official

19 military depots in Albania. All measures taken by official Albanian

20 authorities later, with the help of the international community, led to an

21 estimate by the UN commission that 30 to 40 per cent of these weapons were

22 not under the control of the authorities and the bulk of this quantity, 30

23 to 40 per cent out of 650.000 pieces, ended up in the possession of the

24 KLA."

25 In giving the KLA a bit of a back-handed compliment he added:

Page 11070

1 "The KLA used this situation in the best way possible. I have to grant

2 them that."

3 As an example of the sophistication of the KLA weapons, arming,

4 and fortifications, I just briefly have displayed Exhibit P910 which are

5 photographs of KLA trenches, fortifications, and positions at Lodza when

6 the Serbs overran the position in July 1998.

7 Colonel or retired General Dragan Zivanovic in testimony in his

8 statement under Rule 92 ter, P1018, at paragraphs 103 to 104 displayed on

9 the screen also paid the KLA some compliments in terms of the resistance

10 he encountered. In describing fighting in Prilep in August 1998, he

11 described: "We encountered very strong resistance from the KLA. KLA

12 fighters were using the stone towers in the walled and enclosed family

13 compounds to shoot at the MUP and VJ. These towers were very suitable for

14 sniping at our forces. The sound made by the Chinese automatic rifles

15 also made it very difficult to ascertain the firing positions."

16 [Prosecution counsel confer]

17 MR. RE: "The KLA were firing at us from behind the stone

18 walls ... Using hand-held rocket-launchers. The courtyard in the centre

19 of the village was particularly difficult for us to take because the KLA

20 was firing a mortar at us from that position. I know all the

21 civilians ... Left the village before the MUP and VJ entered Prilep and

22 the fighting began."

23 Then he goes on: "We were unable to use tanks ... Because the

24 terrain was flat and we could not find a direct line of sight on targets."

25 And he then said: "As our units approached their stone buildings

Page 11071

1 they managed to escape through holes dug under the stone walls. The KLA

2 also mined the houses and buildings and parts of the courtyards with

3 personnel mines and ... Explosive devices."

4 [Prosecution counsel confer]

5 MR. RE: I turn now to the role of Idriz Balaj --

6 JUDGE ORIE: Mr. --

7 MR. RE: Sorry.

8 To the role of Idriz Balaj, also known as Toger, and the Black

9 Eagles. The evidence has proved beyond any reasonable doubt that

10 Idriz Balaj is and was Toger. No one has suggested in the Defence that

11 there was more than one Toger operating in the Dukagjini Zone in 1998, nor

12 that another Toger, a different Toger to Idriz Balaj, ran the Black

13 Eagles, a unit notorious for its brutality towards Serbs and perceived

14 civilian opponents of the KLA. Balaj commanded the Black Eagles;

15 Haradinaj appointed him to that position in 1998. They had a particularly

16 close working relationship. Balaj was an important member of Haradinaj's

17 Gllogjan staff. Balaj, Toger, acted as Haradinaj's personal body-guard.

18 They were frequently seen together. Balaj accompanied Haradinaj to almost

19 every important KLA/FARK meeting in the Dukagjini Zone. At those meetings

20 between FARK and the KLA, Balaj was responsible for Haradinaj's security.

21 His position was formalised or set out in Exhibit P177, which

22 shows the composition of the Gllogjan staff as of the 8th of July, 1998,

23 and you can see at item 11, which is displayed on the screen -- or the

24 whole thing, you can see that Togeri, that is, Balaj, was the commander of

25 the special units. You can also see other familiar names, Faton Mehmetaj

Page 11072

1 in Poxha [phoen], Daut Haradinaj, Shkelzen Haradinaj, Ramush Haradinaj as

2 the commander. The minutes of the meeting of the 23rd of June, 1998,

3 that's Exhibit 143, reveal Balaj's position to be "responsible for

4 sabotage and anti-terrorist combat." Togeri and it says: "Decision." And

5 you can see the Albanian on the screen and it's about the middle of the

6 page.

7 However described, in reality, however, his task was to locate,

8 mistreat, and murder alleged collaborators and KLA opponents in

9 furtherance of the common criminal purpose. The Black Eagles wore

10 distinctive uniforms, they were better armed than normal KLA soldiers,

11 they were better trained, they were based in the Gllogjan elementary

12 school until Balaj, Toger, moved it to Rznic after the MUP withdrew after

13 the 21st of April. Balaj himself, and there's been an amount of evidence

14 about this, drove a distinctive black jeep. The Black Eagles operated

15 with impunity throughout the Dukagjini area. They trained at the

16 abandoned Ekonomija farm, a state agricultural enterprise which was

17 directly next to the canal where the 31 bodies were found. Its location

18 could be seen on the photograph directly in front of the Trial Chamber at

19 the moment. Balaj and the Black Eagles entered villages looking for

20 people who were "wanted" by the KLA. Balaj kept a notebook containing

21 names of wanted persons. Two examples are civilians Faik Gecaj and

22 Musa Berisha. A KLA commander or sub-commander Rrustem Tetaj testified

23 that Faik Gecaj was on the list because he had been smuggling weapons from

24 Albania for personal gain, but Musa Berisha worked for a human rights

25 organization in Decan.

Page 11073

1 Until 1998 -- sorry, the Trial Chamber heard evidence that in June

2 1998 Balaj shot at Musa Berisha's car at a check-point in Rznic when

3 Berisha, an unarmed civilian, was attempting to reach Gllogjan. You also

4 heard evidence of Balaj shooting an elderly civilian, Adem Hulaj, in Rznic

5 as he was exiting his car. Balaj also led KLA members in brutally and

6 repeatedly harassing and abducting and ultimately murdering three members

7 of Witness 4's family because of Witness 4's family connections or alleged

8 connections with Serbian authorities. Balaj abducted and mistreated

9 Witness 1 based on suspected collaboration. He took Sanije Balaj's body

10 to the canal area. He dumped it directly on the top of the mother of

11 Witness 4 and her daughter who he had abducted some months earlier. He

12 also personally committed the rapes --

13 JUDGE ORIE: Mr. Re.

14 MR. RE: He also personally committed the rape charged in Counts

15 35, 36 and 37 of the indictment. Balaj was also involved in further

16 violent and threatening acts, for example, and I've described these --

17 I've touched on these earlier: His and Haradinaj's mistreatment,

18 intimidation of FARK soldiers and officers on 4th of July. In early July

19 he attempted to intimidate a senior FARK officer in Rznic by questioning

20 the officer's authority to travel in the area. And as described earlier,

21 the detention on the 11th of August of the ECMM monitors in Rznic accusing

22 them of spying for the Serbs and beating their Albanian interpreter.

23 The evidence was that even KLA members feared Balaj.

24 Pjeter Shala, himself a feared participant in the joint criminal

25 enterprise, testified that other units "did not meddle" with Toger's unit.

Page 11074

1 Avni Krasniqi, the KLA military police member, testified that when he went

2 with Balaj and two other soldiers to move Sanije Balaj's body, he took

3 another KLA soldier with him, such was his fear of Toger whom he

4 identified as Idriz Balaj.

5 Pjeter Shala testified of the security at Balaj's training

6 facility, that's at pages 9974 to 5, and how Haradinaj's permission was

7 required to visit it. And this is certainly something Shala should know

8 about.

9 "Q. And ... Was it easy to visit the location or base of ...

10 This elite unit or special ... Unit?

11 "A. I didn't have anything to do with that unit, but to go there

12 you had to ask for special permission because other units didn't meddle

13 with that unit.

14 "Q. And do you know from whom ... You had to get that special

15 authorisation?

16 "A. From Ramush."

17 It was well-known within the FARK that Balaj was abducting

18 civilians. Witness 17 testified at page 7579 to 80 that Tahir Zemaj had

19 said that if someone was detained and sent -- or taken to Gllogjan and his

20 whereabouts are unknown, then it is Toger's responsibility who carried out

21 these detentions. And that's why the villagers were interested in these

22 things and provided Tahir with information on these incidents, since

23 something was wrong. It was said that the missing persons, those that

24 were detained and who went missing ... They were "sent to Gllogjan."

25 Witness 4 lost his mother and two sisters to Balaj's persecution

Page 11075

1 of them because of the family's alleged involvement with Serbian

2 authorities. He testified about what his sister had said.

3 "Q. What did she tell you?

4 "A. She said that there was a prison in Irzniq.

5 "Q. Who was this prison run by?

6 "A. The KLA.

7 "Q. Did your sister tell you anything about what she saw in this

8 prison in Rznic?

9 "A. ... She said she saw some prisoners of young and old in age.

10 "Q. Did she tell you anything about what she had done or what the

11 orders were in general as a member of the KLA?

12 "A. Yes. She talked to us. She said that she had received

13 orders from Togeri," that's Balaj, "to kill somebody and then if she

14 didn't kill him, then he would kill me."

15 In our brief we have given a table listing the sightings of

16 Idriz Balaj throughout the indictment period. I want to show that table

17 in PowerPoint, which shows Idriz Balaj's sightings throughout the period.

18 If that could please be displayed.

19 The first page it refers to paragraph 253 of the final trial

20 brief. First sighting is training KLA soldiers in March 1998. Next, late

21 March 1998, attending the funeral of KLA soldiers in Gllogjan. The third,

22 formation and training of the Black Eagles in Gllogjan, April/May.

23 Meeting Tetaj with Haradinaj, mid-April. Abducting Sister S, mid-April.

24 Returning Sister S home, mid-April. Meeting Shemsedin Cekaj, 20th of

25 April, and that was with Haradinaj. Driving his black jeep in Lumbardh,

Page 11076

1 May 1998. Returning Sister S home a second time, early May 1998. Issuing

2 a travel warning to Witness 4's family, that's late May 1998. June 1998,

3 shooting Adem Hulaj as I described a moments ago. June 1998 shooting

4 Musa Berisha in Rznic -- sorry, the car. Next one, taking Besim from

5 Irzniq to dig trenches in June 1998. June 1998, again abducting

6 Witness 4's family in Ratis -- mother in Ratis. 26th of June 1998,

7 FARK/KLA meeting, Haradinaj attended in Jasic. 4th of July, confrontation

8 with FARK soldiers. 4th of July, attacking FARK soldiers in Gllogjan in

9 the presence of Haradinaj. 8th of July, the confrontation Witness 17

10 testified to in Irzniq. 10th of July, again with Haradinaj, delivering an

11 ultimatum to the FARK command in Prapaqan. 10th/11th of July, Witness 17

12 complained to Haradinaj of Balaj's behaviour in Lluka and Prapaqan. On

13 the 20th of July, 1998 --

14 JUDGE ORIE: Mr. Re, Mr. Re, your computer presentation is

15 steadily one or two items prior to what you are saying, that is rather

16 confusing, as a matter of fact.

17 MR. RE: It is. Okay. I understand.

18 JUDGE ORIE: Yes. This is not an invitation to speak more

19 quickly.

20 MR. RE: We're up to sighting number --

21 JUDGE ORIE: We have now on our screen, we have the swearing-in

22 ceremony which is dated the 20th of July --

23 MR. RE: That's sighting number 21. That's at the Baran

24 swearing-in ceremony, and there is a video of that in evidence and the

25 Trial Chamber has viewed it. Balaj is clearly present there with

Page 11077

1 Haradinaj in attendance in the crowd.

2 The next one is a meeting of Bislim Zyrapi from the KLA General

3 Staff with Haradinaj in July 1998 in Irzniq. Sighting 23 is abducting

4 Witness 1 and raping Witness 2, as pleaded in the last counts in the

5 indictment, that occurred in early August 1998. 24, delivering or

6 detaining the ECMM team and then delivering them to Haradinaj in Gllogjan,

7 that was the 11th of August, 1998. Sighting 25, meeting with Haradinaj,

8 Tahir Zemaj, and Witness 17 between the 11th and 20th of August, 1998.

9 26th, of course, was the evidence you heard of his moving Sanije Balaj's

10 body from Lugu i Isufit to the canal in his black jeep, which was

11 mid-August 1998, around the 15th or so. 27, mid-to-late August 1998,

12 abducting Witness 4's Sister M in Ratishe. 28, meeting of village

13 commanders with Haradinaj in Prapaqan, that's the 20th of August, 1998.

14 29, questioning Tush and Illira Frrokaj who were taken to a check-point in

15 Gllogjan in August 1998. Sighting 30, training soldiers at the Gllogjan

16 KLA headquarters in August 1998. 31, seen by a witness before leaving the

17 village, Irzniq, that's late August 1998.

18 And if you look at the last slide in that presentation it shows

19 all of the sightings of Idriz Balaj which are in evidence over that

20 period. The evidence against Balaj is overwhelming. He played an

21 important and brutal role in persecuting the victims of the common

22 criminal purpose.

23 Turning now to the criminality accompanying some of the sightings

24 of Toger, a.k.a., Balaj. In Counts 13 and 14 of the indictment,

25 persecution, murder, abduction, imprisonment, and harassment of members of

Page 11078

1 Witness 4's family in Ratis, I'm going to take you to this particular

2 count to show Haradinaj's role in this and how it relates to the joint

3 criminal enterprise and the common criminal purpose.

4 Over a period of possibly five months between March and April

5 1998, Balaj, himself, his Black Eagles unit, and other KLA members

6 harassed and terrorised Witness 4's family in Ratis before abducting and

7 murdering his two sisters and their mother. The late father had been a

8 state-employed forest ranger. A retired Serbian policeman was very close

9 to the family. Consistent with the --

10 JUDGE ORIE: Mr. Re, before we continue, just to better be able to

11 follow your submissions, you said five months between March and April --

12 MR. RE: August.

13 JUDGE ORIE: Please proceed.

14 MR. RE: Consistent with the pattern of persecutory attacks

15 against those allegedly not supporting the KLA and supposedly

16 collaborating with the Serbs, Balaj and KLA participants in the joint

17 criminal enterprise viciously persecuted this family. They first came in

18 late March 1998 around the 30th of March. They arrived late at night,

19 some wore black clothes, some were uniformed, some wore masks. They said

20 they belonged to a special unit and were searching the home for weapons

21 because Witness 4's family had been licensed to possess fire-arms. Their

22 presence absolutely terrified the family. Late at night several weeks

23 later in mid-April 1998, Balaj returned bringing armed KLA soldiers under

24 his command to the family home. He -- Witness 4 heard a soldier repeat

25 the name Toger over and over. Balaj introduced himself to Witness 4's

Page 11079

1 mother as Toger. He told the family -- he told her that each family

2 member had to have a soldier in the army. He then abducted the oldest

3 daughter, Sister S. About four days later, Toger briefly brought Sister S

4 back before taking her away again. Toger and Sister S were both wearing

5 black KLA special unit uniforms with KLA insignia. Sister S said she was

6 staying at the old school in Rznic being used as a KLA base.

7 The fourth visit to the house was in early May. One to two weeks

8 later Toger dropped off Sister S, again she was wearing a black uniform,

9 and she'd said as I'd described earlier, there was a prison in Rznic and

10 Toger had ordered her to kill someone and threatened to kill her if she

11 refused. She was afraid to give more details for fear that Toger, that

12 is, Balaj, would harm her. Under Toger's orders she walked back towards

13 Rznic, but later that day Toger came back and asked why she was late in

14 returning. Witness 4 told Toger she had already left. The family never

15 saw her again.

16 The fifth visit was in late May 1998, about two to three weeks

17 later. Witness 4 went to Ratis headquarters to ask for a permit to allow

18 the family to travel. He was denied the permit, but shortly afterwards

19 Balaj and other KLA soldiers came back to the family home, telling the

20 mother she was not allowed to travel anywhere because her husband had

21 worked for the Serbian authorities. He threatened to kill her if she

22 tried to go anywhere. Now, that provides direct evidence of Balaj's

23 persecutory intention.

24 If that wasn't enough, there was a sixth visit in June 1998, in

25 approximately June, when Balaj brought a group of armed soldiers to the

Page 11080

1 home late one night. He questioned the mother about the whereabouts of

2 the oldest son and he abducted her. He took her away and her family never

3 saw her again. Her body was found at the canal in September. Balaj made

4 a seventh visit. Late one night in mid-to-late August sometime after the

5 mother's abduction, Balaj returned with several armed KLA soldiers and

6 they broke down the family's door. Balaj dragged Sister M, that's Witness

7 4's sister. She was not even allowed to put on her shoes, dragged her

8 through her room and out through the broken front door.

9 Four or five days later the body was found by the side of the road

10 about 5 or 6 kilometres away. Her throat was slit. She had been shot

11 behind the ear and stabbed multiple times in the arms, back, and shoulder.

12 Her right arm was extended above her head and her left hand grabbed the

13 ground as if she was trying to get up before she died. Her leather jacket

14 was found near her body, was bullet-ridden, and had 50 to 60 knife cuts.

15 Her body -- her family buried the body near the house and then fled in

16 fear to a relative's village. The Office of the Prosecutor later exhumed

17 her body. An autopsy showed that multiple gun-shot wounds caused her

18 death.

19 Balaj or others acting with him murdered this woman; there is no

20 other explanation, no other conclusion is available from the evidence.

21 And from what you heard at trial, the only conclusion is that he murdered

22 her with persecutory intention. But what is conclusive about his

23 involvement is how and where the bodies were found. The bodies of the

24 mother, R-11, and the sister, R-12, as you can see in the photo on the

25 screen were found at the canal wall underneath the body of Sanije Balaj,

Page 11081

1 that's body R-1. Their heads were next to each other and between them was

2 a barbed-wire noose in between which long black hair and decaying human

3 tissue was lodged. The canal wall above the bodies was perforated with

4 bullet strikes.

5 The bodies of the mother and the sister had severe injuries. The

6 Sister S's body had multiple fractures consistent with gun-shot wounds.

7 The mother's body had multiple fractures consistent with gun-shot wounds.

8 There were bullets inside her body-bag and a bullet in her vertebrae.

9 The similarity, and I return to the similarities, the similarity

10 of these wounds on these bodies, their proximity, the cause of death, the

11 bullets in the mother's body and the body-bag, and the bullet strikes on

12 the wall are all consistent with execution on the spot. The blunt-trauma

13 injuries and the barbed-wire noose containing the long black hair provide

14 compelling evidence that one or both was tortured before execution. It's

15 also significant that both died before Sanije Balaj's body was dumped on

16 top of their remains by Balaj or someone acting for him in mid-August.

17 This is entirely consistent with the dates and chronologies given by the

18 witness.

19 Your Honours, Toger is Balaj. The recognition evidence is

20 incontestable and proves Balaj's identity as Toger beyond reasonable

21 doubt. Witness 4 recognised Toger as Balaj from the seven "visits" that

22 Balaj made to his family home. Toger, that is, Balaj, did nothing to hide

23 his identity when committing these crimes. Another factor which indicates

24 his authority and impunity, he wore the same clothes always, the black KLA

25 special uniform worn by the Black Eagles, and he always seemed to command

Page 11082

1 the other soldiers. Balaj and the other KLA members persecuted these

2 family members because of their association and perceived collaboration

3 with Serbian authorities. The three victims were all civilians.

4 The victims were all murdered by gun-shot after Balaj abducted

5 them. Their bodies and their story is intricately linked to what happened

6 to Sanije Balaj. This young woman aged about 22 at the time of her death,

7 her brutal and unnecessary death, proves a direct connection between Balaj

8 and Haradinaj and other participants in the joint criminal enterprise to

9 persecute. The evidence is that - and you heard this evidence - on the

10 12th of August, 1998, KLA military police officer Mete Krasniqi and others

11 detained her at the Baran village check-point because her name was on a

12 list of Albanians who should be stopped. And the slide shows where Baran

13 is in connection to the other places in the indictment.

14 She was interrogated in the Baran KLA military police headquarters

15 in the school building. One of the interrogators, Idriz Gashi, Galani,

16 who has been found guilty by a Kosovo court of her murder, took Sanije

17 Balaj out announcing that he had found the names of Serbian police in her

18 notebook and she had to be taken to Gllogjan for further questioning.

19 Galani and military police member Avni Krasniqi then drove her towards

20 Haradinaj's Gllogjan headquarters for further questioning. Both Mete and

21 Avni Krasniqi were members of the Baran military police under

22 Hasan Gashi's command. The Trial Chamber has heard evidence that

23 Haradinaj appointed Galani, the murderer, the commander of Lugu i Drinit

24 area. Avni Krasniqi testified that this appointment meant that Galani

25 "had to be obeyed." Galani was also close to -- very close to

Page 11083

1 Mete Krasniqi.

2 On the way to Gllogjan, Galani Gashi took Sanije Balaj out of the

3 car and murdered her by shooting her with his pistol. The Trial Chamber

4 heard evidence from Avni Krasniqi who was present when Galani murdered

5 this young woman. After the murder, which was very, very hard to conceal

6 and later that day, Galani took Iber and Avni Krasniqi back and ordered

7 them to bury the body. Exhibit P925 on the screen shows the site of the

8 murder and burial. This murder incident soon became very widely known in

9 that area and a few days later Haradinaj himself went to the home of

10 Sanije Balaj's brother, Shaban, to offer his condolences.

11 Mete Krasniqi told Haradinaj that Galani had killed, had murdered,

12 Sanije Balaj. However, about three days later -- about three days after

13 the murder Balaj, Toger, arrived in Baran in a black jeep with Galani,

14 that's the murderer, and two other soldiers. The Trial Chamber heard

15 evidence about -- very strong evidence about the identity and role of

16 Balaj in disposing of the body. Galani ordered Balaj to take -- sorry,

17 ordered Avni Krasniqi to help Balaj move the body to a safer place. Balaj

18 took Avni and Iber Krasniqi and the soldiers to Lugu i Isufit, the place

19 shown in that slide a moment ago. Balaj waited in his jeep while the

20 others exhumed the body and put it in the back of his jeep.

21 Balaj then took Iber and Avni Krasniqi back and he, Balaj, drove

22 away with the body. The body was found at the canal near the bodies of

23 Kemal Gashi and Zenun Gashi. Zenun Gashi being the Roma police officer on

24 the KLA wanted list circulated on about the 12th of July, 1998. Balaj or

25 someone acting at his direction must have taken the body there. There is

Page 11084

1 no other explanation of how it came to be lying there on top of the other

2 victims abducted by Balaj in the preceding months.

3 As I mentioned earlier, her body as shown in the slide,

4 Exhibit P418, was on top of the bodies of the mother and sister of

5 Witness 4, that's R-11 and R-12, last seen in Balaj's custody before Balaj

6 collected Sanije Balaj's body.

7 As a suspected collaborator, Sanije Balaj was arrested and

8 murdered pursuant to the common criminal enterprise. When you consider

9 carefully all of the circumstances leading to the -- all the circumstances

10 lead to the overwhelming conclusion that Haradinaj must be linked to the

11 murder because of the circumstances described before and the system of

12 persecution put in place. And the most obvious one here is his

13 contribution by assisting in covering up this brutal murder.

14 By the third day after her well-known murder, he must have known

15 from Galani, Mete Krasniqi, or his trusted lieutenant in Baran, that's

16 Din Krasniqi about where her body was. But while he was -- around the

17 same time he was talking to his family -- sorry, talking to the family of

18 the victim, Sanije Balaj, his right-hand man Balaj, Toger, was exhuming

19 the body and taking it to the canal. The only reasonable inference is

20 that Haradinaj ordered or at least, at the very least, approved of the

21 removal of her body.

22 That Balaj took the body to the canal was no secret at the time

23 either. Haradinaj argues that he was not responsible for investigating

24 the murder because it did not happen in his area and that he did not have

25 prisons or courtrooms and the suspect seemed to have left the area. We

Page 11085

1 ask you to reject this argument in its entirety; it is absolutely

2 implausible. Haradinaj was the most powerful individual in the zone.

3 Idriz Gashi, Galani, was his own appointee. Mete and Avni Krasniqi took

4 their orders from Din Krasniqi and Haradinaj pursuant to de facto -- at

5 least a de facto parallel command structure then in Baran.

6 The only possible reason for taking Sanije Balaj's body to the

7 canal, which he referred to as a "safer place" for her body was to conceal

8 the truth about the detention and killing by KLA members. This act, too,

9 is no coincidence. It was just another act in the pattern of persecution

10 and murders committed against perceived collaborators.

11 I turn now to the role of Lahi Brahimaj in the joint criminal

12 enterprise. Brahimaj was second only to Haradinaj in power and prestige

13 in the Dukagjini Zone KLA. He commanded the strategic KLA stronghold of

14 Jablanica. As the evidence establishes, it was the first village in the

15 Dukagjini area to establish a significant KLA force. Brahimaj also had a

16 central role in establishing the KLA base in Gllogjan. He was a member of

17 the KLA's General Staff. He was its finance director. He was its liaison

18 between the General Staff and the Dukagjini Zone. He was Haradinaj's

19 uncle and an important and respected KLA figure in the zone.

20 Before the clash in Gllogjan between the KLA and Serbian forces on

21 the 24th of March, Pjeter Shala, the feared Pjeter Shala and Idriz Balaj

22 operated out of Jablanica, where Brahimaj was based. By the 30th of

23 March, 1998, Jablanica was guarded and fortified with approximately 200

24 armed and trained KLA members under Brahimaj's command. Brahimaj, the

25 evidence establishes, was a close associate of Haradinaj and contributed

Page 11086

1 to organising and strengthening the KLA in the Dukagjini region. Such was

2 their closeness that after Haradinaj's KLA forces withdrew from Gllogjan

3 on the 24th of March, they went to Jablanica. Haradinaj who was wounded

4 in the attack himself took refuge in Brahimaj's house. And Jablanica,

5 just like Gllogjan, was strategically located along a main KLA corridor

6 for the importation of arms, equipment, and soldiers from Albania.

7 Haradinaj and Brahimaj coordinated this arming effort in which

8 large groups of KLA soldiers travelled between Albania and Jablanica, and

9 Brahimaj himself led groups across the border collecting weapons. On the

10 23rd of June, Brahimaj -- Haradinaj -- sorry, Brahimaj became Haradinaj's

11 deputy commander but was dismissed a few weeks later apparently for

12 unauthorised absences from the zone. Brahimaj used his personal authority

13 to publicly promote the persecution of suspected collaborators and KLA

14 opponents. An example was the persecution of villagers from Grabanice who

15 supported the opposition LDK. These men became "wanted" by the KLA as the

16 result of Brahimaj's public accusations against them.

17 In late May 1998, Brahimaj and another KLA commander Alush Agushi

18 intercepted and confronted a group of Grabanice villagers in Gllogjan and

19 Peje who were fleeing their village to escape the Serbian forces.

20 Brahimaj ordered the Gllogjan villagers not to assist the group and the

21 Jablanica staff began looking for the men from Grabanice. They instructed

22 them to turn the men into the KLA staff.

23 Pjeter Shala and two other KLA members abducted two of them,

24 Fadil Fazliu and Naser Lika in Zabelj, beat them, accused them of being

25 traitors, and took them by force to Jablanica. Brahimaj was in charge of

Page 11087

1 the KLA barracks detention centre -- I'm sorry, detention centre, in

2 Jablanica. The barracks were established by at least March 1998.

3 Exhibit P357, which will be on the screen, shows the detention centre

4 located in the KLA barracks, which is on the right of this picture or to

5 the left as you enter it. The purpose of this detention centre was to

6 further the common criminal purpose by detaining, torturing, and killing

7 alleged collaborators and KLA opponents.

8 No evidence exists that the prison was used for any other purpose.

9 In establishing and operating a notorious prison and personally committing

10 acts of violence against perceived KLA opponents, Brahimaj supported and

11 encouraged KLA members to make further attacks in furtherance of the

12 common criminal purpose. Every prisoner known to be detained there during

13 the indictment period was an alleged collaborator or was otherwise

14 considered by virtue of ethnicity to be a KLA enemy or opponent.

15 Brahimaj, as the Jablanica KLA commander, had overall command of

16 the barracks and detention centre and took control of the detention,

17 release, and treatment of Jablanica prisoners; and he had a virtually

18 continuous presence at the detention centre. Such was his presence there

19 that he even had his own room in the detention centre adjacent to a prison

20 cell. The guards called him the commander. His permission was required

21 for prisoners to be released. You've heard evidence of how he controlled

22 access to the barracks by civilians. He had unfettered control over the

23 fate of his prisoners. He had the power to select individuals for

24 imprisonment and for beating. He had the power to have prisoners taken

25 out of their cells for beating or interrogation and the power to order

Page 11088

1 other KLA soldiers to beat prisoners. The KLA at Jablanica treated

2 Serbian and Montenegrin prisoners, the absolute and automatic enemies of

3 the KLA, with particular brutality.

4 Witness 6 and a Kosovo Albanian civilian and Nenad Remistar, a

5 Serb civilian, were abducted by the KLA at the same time and initially

6 imprisoned and beaten together in the barracks office. Witness 6 was

7 eventually released after many weeks of mistreatment, but Remistar was

8 taken away and murdered after just 24 hours of detention. For three days,

9 three Montenegrins and a Bosnian, also imprisoned, were beaten with

10 baseball bats and stabbed with knives until they too were "soaked with

11 blood" and spitting blood, at which they too were taken away, never to be

12 seen again.

13 Brahimaj directly encouraged mistreatment, acts of mistreatment,

14 by his subordinates and made personal allegations of collaboration against

15 prisoners. When he made one such allegation against Witness 3, Brahimaj

16 handed Witness 3 a revolver and told him to kill himself because Brahimaj

17 did not want to stain his hands with the prisoner's blood. Brahimaj

18 actively sought out and punished Witness 3 after he initially escaped from

19 detention. The prison was notorious. Witness 6's relatives found out

20 that Witness 6 had been detained in Jablanica through word of mouth from

21 local villagers. A relative went there every day and the guards would

22 tell him how Witness 6 was doing.

23 The Serbian DB and the VJ, that's the military, also knew about

24 the KLA prison in Jablanica. They had information that kidnapped Serbs,

25 Romas, and loyal Albanians were detained there. And I won't display it

Page 11089

1 but Exhibit P981 provides details of what the DB knew at the time.

2 Brahimaj carried out these activities openly in the midst of KLA barracks

3 full of soldiers and the presence of other KLA members. His conduct

4 demonstrated his total approval and encouragement of the general

5 atmosphere of violence and terror towards alleged collaborators at the

6 detention centre.

7 Nenad Remistar, a Serb civilian, worked as a traffic policeman in

8 Gjakove. He was a civilian for the purposes of an armed conflict. He

9 took no active part in hostilities and was not a member of the Serbian

10 forces. On the last day that his family saw him, on the 13th of June,

11 1998, he left home for work in a blue Opel Kadett vehicle wearing civilian

12 clothes. His relatives became concerned after not hearing from him for

13 several days and learned that he had not arrived at work. In late June

14 some Kosovo Albanians told his father that Nenad Remistar had been

15 imprisoned with a Catholic Albanian in Jablanica. Now, this is exactly

16 what had happened.

17 Witness 6 testified at page 5210: "Thank you. You mentioned the

18 man whom you saw photographs in the Opel Kadett, the man you knew as

19 Nenad, did you ever see him?

20 "A. We were in the same room together that night. Both of us

21 were beaten. We were tied up with a rope. We were, both of us tied up

22 for 24 hours, until the next day in the morning.

23 "Q. Did you actually see, yourself, with your own eyes Nenad

24 being beaten?

25 "A. Yes, both of us.

Page 11090

1 "Q. And do you know who participated in the beating of Nenad?

2 "A. Nazmi," that's Brahimaj, "with a group of soldiers that came.

3 The soldiers were not always the same ones. They took turns. He stayed

4 there for 24 hours."

5 And then it goes on.

6 "Q. What kind of condition was he in when the two soldiers came

7 and took him?

8 "A. He wasn't able to walk. Both of us actually had the same

9 injuries. We were both beaten up. These two soldiers took him and I

10 don't know what they did with him afterwards.

11 "Q. Did you ever see Nenad again?

12 "A. No."

13 In relation to the three Bosnians and the Montenegrin, Witness 6

14 also testified at page 5277 about seeing them for about three days and

15 their being beaten with baseball bats and being stabbed with knives and

16 their clothes were full of blood, that's at 5277.

17 Another prisoner detained at Jablanica was Pal Krasniqi, whose

18 body was found at the canal. Pal Krasniqi sought to join the KLA in

19 Jablanica, but the KLA instead accused him of spying for the Serbs,

20 detained, tortured, and murdered him. Witness 6 testified of seeing him,

21 of the last time he saw him at Jablanica. You can see a photograph of

22 Pal Krasniqi at P334.

23 [Prosecution counsel confer]

24 MR. RE: At page 5240 to 41 of the transcript, Witness 6 testified

25 when asked to describe the condition Pal Krasniqi was in at Jablanica when

Page 11091

1 last seen there. The question was: "What sort of condition was he in?

2 What were his physical capabilities with as much detail as you can muster,

3 please?"

4 The answer was: "As a person is before he dies.

5 "Q. Was there any blood on him?

6 "A. Yes, there was blood on him. He was spitting blood. His

7 body was all black and blue because of the beating, because of the --

8 sorry, swollen. He was lying down on the floor. I would bring him some

9 water. He was in this shape for a week. Then I was released and left

10 that place and I don't know what happened to him.

11 "Q. Did you ever see him again?

12 "A. No."

13 The reason why he never saw him again was because Pal Krasniqi was

14 murdered. His body, R-9, was found by the canal in a group of bodies

15 visible along a section of the canal perforated with bullet-holes. The

16 autopsy revealed fractures to his arms and legs which were entirely

17 consistent with the evidence of the brutal beatings. The cause of death

18 was multiple gun-shot wounds to the head, trunk, and upper limbs. The

19 cause of death, the bullet-holes in the canal and his body had a scarf

20 around it indicate that he was probably taken from the Jablanica detention

21 centre to the canal wall and probably executed on the spot. The only

22 conclusion in these circumstances that he was last seen close to death in

23 the KLA's detention centre in Jablanica and his body was found in the

24 KLA's mass grave site in the heart of KLA-controlled territory is that he

25 was murdered by KLA members acting pursuant to the joint criminal

Page 11092

1 enterprise.

2 Another person whose murder was charged in the same count is

3 Skender Kuci. The evidence was given that this prisoner at Jablanica

4 detention centre was "beaten to a pulp." He was not in a position to get

5 up let alone walk around in the courtyard. He'd got to the point where he

6 used to pee in his pants.

7 Witness 6 gave testimony about Lahi Brahimaj and Nazmi Brahimaj

8 being present when the beatings occurred and their participation in the

9 beatings of prisoners at the Jablanica detention centre.

10 If I could just pause for a moment and just go through these

11 slides relatively quickly showing Skender Kuci's abduction to Jablanica.

12 Pal Krasniqi leaving Peje to join the KLA at Jabllanice. Witness 3's

13 arrest in Zhabel, being taken to Jabllanice. Three tortured and beaten at

14 Jabllanice. The escape of Witness 3, the death of Skender Kuci from his

15 injuries and his burial at Jabllanice. And you can see on Exhibit P267,

16 he was buried in the woods close to the Jablanica detention centre

17 indicated by the red arrow, and the circle, the black circle, being the

18 Jablanica KLA headquarters. In September 1998 Pal Krasniqi's remains were

19 recovered by the canal, and his remains are shown in photograph 667.

20 JUDGE ORIE: Mr. Re, I'm looking at the clock. I'd like to have a

21 break until 6.00, and then I think 20 minutes remain for you, and I'm

22 going to be strict in time because otherwise --

23 MR. RE: Not a problem. I'm well within -- well on.

24 JUDGE ORIE: And then, Mr. Emmerson, then you are invited or any

25 of your colleagues to start for the last 40 minutes today so that we

Page 11093

1 can --

2 MR. EMMERSON: Very well.


4 We'll resume at 6.00.

5 --- Recess taken at 5.40 p.m.

6 --- On resuming at 5.59 p.m.

7 JUDGE ORIE: Mr. Re, 20 minutes remaining for you.

8 MR. RE: Thank you, Your Honour.

9 If we just look at the last slide on the screen. Before the break

10 I said that in September 1998, Pal Krasniqi's remains were recovered by

11 the canal. This slide shows that they were found near R-8,

12 Velizar Stosic, and R-8/1, Zdravko Radunovic, and close to R-7,

13 Sali Berisha, and R-4, Zenun Gashi. Zenun Gashi being on the KLA wanted

14 list, that's Exhibit P667.

15 I turn now to another count in which Kosovar Albanian civilians on

16 KLA wanted lists were abducted by KLA members and ended up by the canal,

17 and that's the case of Nurije and Istref Krasniqi, paragraph 83 of the

18 indictment in Counts 21 and 22. You can see their photos in P347 and 346.

19 In 1998 Istref was 60, Nurije 56 or 58. On the 12th of July, 1998, four

20 armed KLA soldiers took them from their home in Turjak. They were

21 suspected Serbian collaborators. Rumours had circulated in Turjak that

22 they were "sons of Bosnians and collaborators to the Serbs."

23 On about the 10th of July, KLA commander Rrustem Tetaj had -- and

24 armed KLA soldiers had arrived at their home in two black jeeps. Tetaj

25 had introduced himself as Ramush Haradinaj's deputy. Two days later at a

Page 11094

1 meeting of the Baran valley command in the house of the commander,

2 Din Krasniqi appointed by Haradinaj, a list was circulated of people who

3 were wanted by Din Krasniqi and the KLA. The list is on the screen at the

4 moment and it shows two women collaborators from Turjak. Now, the

5 evidence shows that one of these had to be Nurije because of the

6 circumstances of how her name came to be put there. It referred to her

7 son who had been shot in the neck and Din Krasniqi had actually treated --

8 he was a doctor, had treated him for his wounds.

9 Now, Witness 17 said the existence of the collaborators was

10 well-known to the people at the meeting. And the same afternoon of the

11 meeting and the circulation of the list, the two Krasniqis returned home.

12 KLA commander Tetaj and KLA soldiers came and took another person

13 Smajl Gashi from Turjak to Haradinaj's Gllogjan KLA headquarters for

14 interrogation, but at about midnight Tetaj sent Gashi back with KLA

15 soldiers to show them where the Krasniqis' house was. These KLA soldiers

16 then put Istref and Nurije Krasniqi into a black jeep, saying that they

17 were taking them to Gllogjan on Tetaj's orders.

18 Rumours of their abduction and murder circulated, and Tetaj --

19 sorry, and Tahir Zemaj, the FARK commander, appointed Fadil Nimonaj to

20 investigate their disappearance. Selca concluded that Tetaj, the KLA had

21 abducted this couple and Tetaj was pivotal to what happened. On the 15th

22 of July, Din Krasniqi told a relative that he, Krasniqi, had been to KLA

23 headquarters in Gllogjan and was told that they were interrogated there

24 and released. Now, Selca's contemporaneous official notes corroborate

25 this, it was on the screen a moment ago, saying that Imer Krasniqi had

Page 11095

1 been taken from the village of Turjak for an interview regarding his

2 collaboration with the Serbian police in several other cases.

3 What happened to this couple? After they were abducted by KLA

4 soldiers the names -- the name of one appearing on a KLA wanted list, the

5 other it was found was taken there for suspected collaboration, their

6 bodies, R-14 and R-15, were found on the 12th of September near the canal

7 wall. Their bodies were under a gravel pit close to other corpses. Both

8 had multiple gun-shot wounds. Gun-shot wounds caused the death of both.

9 Their bodies were underneath the spot where there were bullet marks or

10 bullet strikes in the wall, which is consistent with death by execution at

11 that particular spot. The couple were accused of collaboration and named

12 on a KLA wanted list, either created or approved by the Baran valley KLA

13 command. KLA soldiers took them to Haradinaj's Gllogjan headquarters on

14 his deputy's orders. Their executed bodies were found next to other KLA

15 victims.

16 Your Honours, the only inference available from this evidence

17 singly and in its totality is that they were murdered by KLA members

18 acting pursuant to the joint criminal enterprise. And you can see from

19 this slide that their remains were also found in the vicinity of the body

20 of R-10, Vukosava Markovic, the elderly Serb sister who disappeared in

21 April 1998 in KLA-controlled territory in the Ratishe-Gllogjan area.

22 Another example ...

23 [Prosecution counsel confer]

24 MR. RE: -- is out of the death of Zenun Gashi and Misin Berisha

25 which is pleaded in Counts 19 and 20 of the indictment. Zenun Gashi was a

Page 11096

1 retired police officer. His family feared that because of his

2 collaboration with the KLA he would become a target of the KLA -- because

3 of his, sorry, feared collaboration with the Serbs by virtue of having

4 been a police officer, he would become a target. Now, the events prove

5 their fears were entirely justified. On around the 1st of August, 1998,

6 KLA military police members abducted Zenun Gashi from his home and took

7 him to Mete Krasniqi at the KLA headquarters in Baran on the orders of

8 Faton Mehmetaj. Faton Mehmetaj, you will recall, had been appointed to

9 that position by Haradinaj.

10 As you can see on the slide P8, the slide showing in front of you,

11 Zenun Gashi's name is on the list of collaborators circulated at the

12 meeting on 12th of July, together with his son. You can also see number

13 9, Misin Berisha, a Roma person from Gllogjan. Two months later the

14 bodies of Misin Berisha, his sons Xhevet and Sali, and Zenun Gashi were

15 found together at the canal wall. Misin Berisha, a Roma civilian, a

16 supporter of Ibrahim Rugova, the opposition, lived in Gllogjan, Peje, with

17 his sons. The circumstantial evidence of what happened to Zenun Gashi,

18 how he died supports the direct evidence of his abduction and mistreatment

19 by the KLA.

20 The KLA Baran commander Din Krasniqi told Witness 17 that

21 Faton Mehmetaj ordered Zenun Gashi transported to Gllogjan. This is of

22 course where Mehmetaj and Haradinaj shared an office. Din Krasniqi said

23 that Zenun Gashi would be killed by the KLA secret police if taken there.

24 Witness 17 attempted to obtain Gashi's release. He was told they'd been

25 released. Din Krasniqi said that Gashi would be "liquidated" if

Page 11097

1 re-arrested. This is exactly what happened, fitting the pattern of

2 persecution of KLA enemies.

3 When Witness 17 asked Din Krasniqi to have him released again,

4 Din Krasniqi confirmed to Witness 17 with a lateral cutting motion across

5 his throat that Zenun Gashi was dead, and the forensic evidence supports

6 that.

7 Another victim was Sejd Noci whose body was found at the canal. He

8 was a Serb civilian Kosovar from Dujak last seen being delivered to a KLA

9 check-point near Junik in July.

10 His body was recovered in parts next to a steep slope about 650

11 metres downstream from the canal near that of Hajrullah Gashi, R-22 and

12 Jusuf Hoxha, R-23, both of whom had disappeared in June or July 1998,

13 Jusuf Hoxha being a police informer.

14 The evidence has proved that this attack against civilians was

15 widespread. Within the zone controlled by Haradinaj's KLA, all the

16 victims came within a very geographically compact area. One slide which

17 we have handed out in advance shows the systematic nature of the attack

18 over six months, the locations of the bodies at the canal shows the

19 systematic nature of their disposal. If you look at the slides on the

20 screen, they're divided by colour. The first one is of ethnic Serb and

21 Montenegrin victims, and you can see where they disappeared from

22 throughout the indictment period.

23 The next one is of Roma Egyptian, Ashkali victims in green.

24 The third slide is of Roman Catholic victims.

25 The fourth slide is of perceived collaborators and KLA opponents.

Page 11098

1 The names of all the victims in the indictment are listed on these slides.

2 When you put them all together and you look at where the dots are and

3 where Gllogjan is, where Jablanica is, where the canal is, you can see how

4 widespread or systematic the attack was over that particular period.

5 Haradinaj, Balaj, and Brahimaj and others jointly participated in

6 the campaign of terrorising and persecuting civilians. They succeeded in

7 their aim of cleansing Serbs from the Dukagjini area and terrorising

8 others into submission. If you look at the canal and the victims found

9 there in the slide, it shows where they came from, running through them

10 quickly. And if you look at the last slide of all victims found at the

11 canal site, it shows exactly where they were found throughout the zone

12 between March -- where they lived between March and April -- sorry, March

13 and August 1998.

14 The Trial Chamber has heard witnesses give direct evidence of each

15 accused personally committing the crimes charged in the indictment, crimes

16 such as rape, torture, and cruel treatment. The evidence of their

17 personal involvement in some crimes when combined with the organized

18 nature of the KLA's activities in the context of the sheer scale of the

19 crimes committed within such a geographically small area proves their

20 participation in the enterprise. The evidence against each is in our

21 submission overwhelming.

22 The accused participated in a joint criminal enterprise which

23 claimed the lives of at least 40 victims. It ruined the lives of others,

24 the families of the deceased, the victims of torture, rape, cruel

25 treatment, and the other crimes. The Prosecution has charged only three

Page 11099

1 of its participants. Others, including Haradinaj's brother Daut and

2 Brahimaj's brother Nazmi are not charged. But it's worth the

3 Trial Chamber going back to the brief and pausing to consider the

4 evidence, what the evidence has proved about their action; that is,

5 Nazmi Brahimaj's central role in the persecution at the Jablanica

6 detention centre, beating Witness 6 with a baseball bat so viciously that

7 the victim's face was swollen and he lost consciousness, the death of

8 Skender Kuci, and the involvement of Daut Haradinaj in the participation,

9 torture and detention of the Stojanovic brothers in April 1998. The

10 actions of these and others are described in paragraph 285 to 335 of the

11 brief.

12 Each accused, Your Honours, had an integral role in the common

13 criminal purposes of the joint criminal enterprise. Haradinaj as the

14 overall commander of those who committed the crimes, Balaj as commander of

15 the Black Eagles, Brahimaj in running the detention centre at Jablanica.

16 The actions of the accused were brutal. They acted according to a common

17 criminal purpose to persecute. Their victims were targeted and attacked

18 because of their ethnicity, political persuasion, or religion. But the

19 tragedy of these events, the wasted lives, ruined lives, those left

20 without homes or loved ones is that the attacks were so unnecessary. The

21 elderly Serbs who remained behind in Ratis and Dashinoc posed no threat to

22 the political or military aims of the KLA. There was no need to murder

23 them, but it was their presence there that offended those participating in

24 the common criminal purpose. There was no need to detain and torture

25 Haradinaj's family neighbours, Witness 4's family posed no threat,

Page 11100

1 military or political to the KLA. As in any situation where the minority

2 has political power, the political arm, the LPK, the KLA, would eventually

3 have won the political struggle perhaps without other political parties.

4 The persecution which the Prosecution has overwhelming proved

5 beyond reasonable doubt was tragically unnecessary, and these crimes, the

6 40 murders and the numerous other crimes pleaded and proved, deserve

7 serious condemnation and severe punishment. The Prosecution has proved

8 the participation of each accused beyond reasonable doubt. In the

9 circumstances, the Prosecution proving its case and the participation of

10 the accused, the Trial Chamber should impose sentences of 25 years'

11 imprisonment on each of Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj.

12 [Trial Chamber confers]

13 JUDGE ORIE: Thank you, Mr. Re.

14 Mr. Emmerson, are you ready --


16 JUDGE ORIE: -- to present closing arguments. You'll be the first

17 one --

18 MR. EMMERSON: That's the plan.

19 JUDGE ORIE: -- of Defence counsel.

20 You know that the Chamber leaves the distribution of time in your

21 hands.

22 MR. EMMERSON: We do.

23 JUDGE ORIE: Please proceed.

24 MR. EMMERSON: Towards the beginning of his address this

25 afternoon, Mr. Re criticised the Haradinaj Defence and he criticised us

Page 11101

1 for urging the Trial Chamber to subject the evidence on each count

2 individually to close and searching scrutiny. He said the Trial Chamber

3 must look at the totality rather than concerning itself with shortcomings

4 in the evidence on the individual counts. In effect, he says that the

5 whole is greater than the sum of its parts.

6 He's right in one matter. He's right to identify a difference of

7 approach between the Prosecution and the Defence. We say that it is only

8 once the Trial Chamber has determined the findings of fact that can

9 properly be reached on the evidence adduced for each count on the

10 indictment that it is possible to stand back and see what the overall

11 picture reveals. Of course those counts must be viewed in their context,

12 but the broad-brush approach which the Prosecution is driven to advocate

13 is, in our submission, no substitute for a methodical evaluation of the

14 evidence. And when the evidence is examined critically and methodically,

15 it becomes clear that the entire edifice of inference which the

16 Prosecution has tried to painstakingly to build ultimately rests on

17 foundations of sand.

18 At the end of his submissions Mr. Re made the surprising

19 submission to the Trial Chamber that the Prosecution had proved the

20 personal participation of each accused in counts on the indictment beyond

21 reasonable doubt. The indictment contains five pairs of counts which

22 allege that Mr. Haradinaj personally committed, instigated, or aided and

23 abetted the commission of the crimes alleged. As Mr. Re knows well, as

24 the trial unfolded each of those allegations fell away. The Prosecution

25 has called no reliable evidence at all of the personal participation of

Page 11102

1 Ramush Haradinaj in any of the counts alleged on the indictment.

2 In its closing brief the Prosecution faintly suggests that the

3 Trial Chamber could conclude that Mr. Haradinaj was present during the

4 alleged ill-treatment of Witness 38, which is the subject of Counts 1 and

5 2, but the argument is not put forward with any real enthusiasm and it got

6 no mention at all in Mr. Re's closing submission and the reason is

7 obvious: The identification evidence could hardly have been any less

8 reliable and there was serious grounds to question the credibility of

9 Witness 38's testimony. Her identification was based upon an observation

10 of a man she claims to have seen in profile across a distance of 30 metres

11 at a time when she was traumatised and her view was obstructed by trees

12 and bushes. She claims to have recognised Mr. Haradinaj several months

13 later when she saw him on television, but she failed to mention this to

14 anyone for seven and a half years despite the fact that she'd made a

15 detailed statement to the MUP in 2002. Her identification was

16 uncorroborated by Witness 58 and her testimony was inconsistent in

17 important respects with her prior statements. There is no basis on which

18 the Chamber could safely conclude that the man she claims to have seen was

19 Ramush Haradinaj.

20 For reasons which I'll come to in more detail in due course, we

21 submit that the same is true of the allegation that Mr. Haradinaj was

22 present and stood by at the time of the assault on the Stojanovic brothers

23 and Veselin Stijovic. The recognition evidence on Counts 3 and 4 is

24 manifestly unreliable by any objective standard, and I will, if I may,

25 deal with that in more detail when I come to those particular counts.

Page 11103

1 But as to the remaining counts, the Prosecution has effectively

2 withdrawn each of the allegations made against Mr. Haradinaj personally,

3 either because the evidence called was plainly unreliable, or because no

4 evidence was called at all. And so the starting point for any analysis of

5 the case against Ramush Haradinaj must be that there is no reliable

6 evidence of his personal involvement in any of the crimes alleged.

7 The case against Mr. Haradinaj rests, and rests solely, on the

8 allegation that he was party to a joint criminal enterprise and it

9 depends, and depends exclusively, on circumstantial evidence. In the

10 course of my submissions, I am going to address that allegation under

11 three broad headings. I am going to deal first with the allegation that

12 he was party to a joint criminal enterprise to persecute Serb civilians.

13 In short, we say the evidence does not prove the existence of any such

14 agreement and that there is no reliable evidence that Mr. Haradinaj

15 authorised, condoned, or acquiesced in any of the crimes alleged on the

16 indictment.

17 In the second part of my submissions, I'm going to deal with the

18 allegation that Mr. Haradinaj participated in a policy of ill-treatment

19 and summary execution directed at perceived collaborators and opponents.

20 We say that his conduct and his interventions point to precisely the

21 opposite conclusion.

22 And finally, I'm going to address the Prosecution's arguments

23 concerning the finding of bodies at the Lake Radoniq canal site and the

24 inferences which can properly be drawn from that evidence. Mr. Re has put

25 it at the centre of his submissions, and I am going to deal with it in

Page 11104

1 some detail. But in a sentence or two, we say that the Prosecution has

2 entirely failed to prove the allegation that this was a KLA execution site

3 or that it was a dumping ground located in territory exclusively

4 controlled by the KLA. We say there are serious questions to be asked

5 about the integrity of the investigation, and we say that when the

6 evidence in respect of each individual is examined the Prosecution case

7 theory falls apart. But most important of all, there is no evidence

8 whatsoever to connect Mr. Haradinaj to any of those deaths.

9 Before I develop those submissions, I want to start by saying a

10 few words about the concept of leadership in the context of the emergence

11 of the KLA in Western Kosovo during 1998. I think it's probably fair to

12 say that Mr. Re conceded that the real thrust of the Prosecution's case

13 against Mr. Haradinaj comes down to a single proposition; that is, that

14 because he was a prominent and charismatic commander, he must be taken to

15 have authorised the crimes alleged on the indictment.

16 We submit that this is the fallacy which lies at the heart of the

17 Prosecution case. The evidence shows that the KLA emerged as a movement

18 in the Dukagjin region, over a period of time, without any of the formal

19 command structures of a conventional army.

20 The backdrop to the events alleged on the indictment is, of

21 course, the devastating series of attacks by Serb forces on Likoshan and

22 Prekaze. The evidence shows clearly the enormous fear and insecurity felt

23 in the Albanian civilian population. Following the assault on Gllogjan on

24 the 24th of March and in the context of the build-up of Serb forces in the

25 area which were poised to strike at any time with potentially devastating

Page 11105

1 consequences for civilians, more and more villages began to start

2 organizing their own flimsy defences. Some of them called themselves KLA;

3 others called themselves territorial defences or village defences. But

4 none of these people were soldiers. They were farmers or shopkeepers by

5 day and fighters by night. They were all unpaid volunteers. There was no

6 central command, no formal recruitment procedure or vetting process, and

7 no effective means of enforcing military discipline. This was a movement

8 of terrified Albanian civilians that grew out of existing village

9 structures and loyalties.

10 The Defence doesn't dispute that Mr. Haradinaj made efforts, with

11 others, to try to coordinate these autonomous groupings into some sort of

12 cohesive fighting force. It's plain that he emerged as a figurehead for

13 the resistance movement following the failure of the Serb forces to

14 eliminate the Haradinaj family on the 24th of March. But the reality of

15 his leadership position bears no real comparison to the position of a

16 conventional military commander, and that's why so many witnesses have

17 spoken in terms of a horizontal rather than a vertical system of

18 organization.

19 When the first serious attempt was made to try to coordinate these

20 autonomous village groupings into a joint command on the 26th of May,

21 Ramush Haradinaj was in reality little more than a prominent village

22 commander with a strong reputation as a fighter, a man others were

23 prepared to rally behind.

24 The leaders of this emerging movement borrowed the language of a

25 conventional army as a means of encouraging cohesion and boosting morale.

Page 11106

1 Titles were given to people and structures agreed on, which bore only the

2 most passing resemblance to the realities on the ground.

3 The indictment consists of a series of unconnected crimes alleged

4 to have occurred in different places across the indictment region, at

5 different times during the indictment period. In most cases, the

6 perpetrators are unidentified. The crimes alleged do not, in our

7 submission, establish any clear pattern or system capable of amounting to

8 a joint criminal enterprise. And for the Prosecution to suggest that

9 merely because he emerged over time as the leader of the KLA in the

10 Dukagjin region, Mr. Haradinaj must have authorised or condoned the

11 commission of these crimes is, in our submission, both illogical and

12 inconsistent with the evidence.

13 Equally unsubstantiated is the allegation that Mr. Haradinaj

14 sought to exclude and then subordinate FARK for purposes somehow connected

15 with the joint criminal enterprise alleged on the indictment. The

16 evidence shows that following the unexpected arrival of FARK forces in the

17 Dukagjin region, a series of meetings took place in which the two sides

18 expressed serious and legitimate differences of opinion on the appropriate

19 way of deploying the FARK officers. Neither side wanted to back down.

20 But Witness 17, who took part in those meetings, said that Mr. Haradinaj

21 was "controlled and orderly" throughout, and that his approach to the

22 discussions as a whole was "constructive and moderate," those are his

23 words.

24 It says something about the way in which the Prosecution presents

25 its case that Mr. Re chose not to draw your attention to the words of

Page 11107

1 Witness 17, who took part in the meetings, but instead to rely on the

2 complete distortion put forward by Witness 29, who did not take part in

3 the meetings.

4 Despite two instances of confrontation on the 4th and the 10th of

5 July, the FARK forces were successfully integrated into the KLA through

6 the formation of three mixed brigades on the 12th of July, less than three

7 weeks after they first arrived in Kosovo. And Witness 17 confirmed in

8 terms that following the establishment of the brigades, the relationship

9 between Mr. Haradinaj and Mr. Zemaj became closer.

10 The incident on the 4th of July in Gllogjan was an ugly and

11 regrettable confrontation between soldiers, but it is not evidence of any

12 policy to persecute civilians and it is not alleged as a count on the

13 indictment. For reasons set out in our closing brief, we submit that the

14 testimony of Witness 29 about this incident was unreliable in a number of

15 respects, just as his testimony about the meetings that took place when

16 FARK arrived was manifestly unreliable. But however this confrontation

17 erupted, the evidence shows that it was swiftly resolved at a meeting

18 between Tahir Zemaj and Ramush Haradinaj the following day. Taken in the

19 context of the constructive negotiations that Witness 17 says took place

20 before and taken in the context of the constructive negotiations and

21 solution that was reached within days thereafter, this single incident can

22 hardly provide evidence of an intention to exclude FARK forces for some

23 unspecified purpose connected with the alleged JCE.

24 But perhaps the clearest indication of Mr. Haradinaj's overall

25 approach is the fact that he permitted the FARK to occupy the Prapaqan

Page 11108

1 barracks which had been set up and financed by the KLA and were the best

2 facility they had available. Those were not the actions of a commander

3 who was seeking to exclude or subordinate FARK for some criminal purpose.

4 On the 21st of August, following the routing of the KLA in

5 Gllogjan, Mr. Haradinaj resigned as zone commander. Far from seeking to

6 subordinate FARK, he agreed to serve under the command of Tahir Zemaj.

7 The reversal of that decision a fortnight later was on the evidence not

8 Mr. Haradinaj's doing; the evidence shows that it was the result of a

9 power struggle between the General Staff and the government in exile, each

10 of which wanted their own man in command of the strategically important

11 Dukagjin region.

12 The suggestion that the problems surrounding the integration of

13 FARK are somehow evidence of Mr. Haradinaj's participation in the joint

14 criminal enterprise alleged on the indictment is completely and utterly

15 contrived. We submit that there's nothing in it at all and that the

16 Trial Chamber should reject it out of hand.

17 I want to come now to the allegation that Mr. Haradinaj was the

18 architect of a campaign to persecute and forcibly expel Serb civilians.

19 The evidence shows that a relatively small number of isolated crimes were

20 committed against Serb civilians during the indictment period. In most

21 cases, there is no evidence of the identity of the perpetrators, and the

22 Prosecution has adduced no reliable or credible evidence whatsoever to

23 show that Mr. Haradinaj ever authorised or condoned the commission of any

24 of these crimes.

25 It's undoubtedly true that weapons were much more freely available

Page 11109

1 to Albanians at this time. That was an inevitable part of the defensive

2 preparations that all sections of the Albanian civilian community were

3 making for the anticipated attacks by Serb forces. But by no means all of

4 these weapons were in the hands of people who considered themselves to be

5 members of the KLA. There is clear and unequivocal evidence that

6 unaffiliated groups and individuals also took part in trips across the

7 border to bring weapons back to their village defences.

8 The increasing availability of weapons provides a number of

9 possible explanations for isolated attacks on Serb civilians.

10 During April, many Serb families moved from their homes in rural

11 areas of Western Kosovo for their own safety. By and large they moved to

12 the major towns which remained solidly under Serb control. But the

13 evidence doesn't establish that this exodus was the result of any

14 organized campaign of expulsion. There is no evidence that people were

15 systematically ordered from their homes. They left because they were

16 living in isolated areas with a predominantly ethnic Albanian population.

17 Many witnesses ascribed their sense of fear to the increasing visibility

18 of armed Albanian villagers, particularly at night, driving around,

19 setting up vehicle check-points, shooting in the air. It may very well be

20 that people fled in fear of this, but that does not establish that there

21 was anything amounting to a campaign of persecution.

22 A number of specific incidents appear to have contributed to the

23 sense of insecurity among the Serb civilian population at this time, such

24 as the shooting of Slobodan Praskevic on the 2nd of March and the attacks

25 on the homes of a small number of individuals of Serb ethnicity. But the

Page 11110

1 evidence falls far short of proving that those isolated incidents were

2 part of any coordinated attack by the KLA.

3 According to Zoran Stijovic, for example, the shooting of

4 Slobodan Praskevic was nothing to do with the KLA. Despite popular

5 misconceptions that this was a KLA assassination, the police investigation

6 established conclusively that the killing was committed for purely private

7 reasons. It's a good illustration of the potential for incidents of that

8 nature to be misconstrued.

9 Similarly, Marijana Andjelkovic testified that the attack in

10 Cermjan on the house of Radenko Fatic was carried out by one of his

11 neighbours; and Miloica Vlahovic testified that his father had seen a

12 group of neighbours on a tractor firing guns in the air outside his house.

13 None of this establishes a policy of persecution, but in the fevered

14 atmosphere that followed the attack on the 24th of March, these incidents

15 were taken as a sign that open conflict was about to erupt.

16 And it's against that background of confusion and disorganization

17 that the counts alleged on the indictment fall to be judged. There are

18 ten allegations of the ill-treatment or murder of individuals of Serb

19 ethnicities, and I am going to say a word or two about each of them but

20 perhaps a little more about the first.

21 Counts 3 and 4 concern the assault on the Stojanovic brothers and

22 Veselin Stijovic. This attack wasn't evidence of any campaign of ethnic

23 persecution. These individuals were targeted not because they were

24 Montenegrin but because of their family's perceived involvement in the

25 devastating offensive against Gllogjan. It was inevitable that the people

Page 11111

1 in the village would feel a deep sense of anger against those they thought

2 were responsible for an attack that had claimed three young lives,

3 destroyed many homes, and led to mass arrests and ill-treatment.

4 The evidence shows clearly that there was a widespread perception

5 in the village that the Stojanovic family had provided the information

6 which led the Serb forces to attack Gllogjan. Predrag Stojanovic was a

7 police officer and he took part in the offensive; indeed, he was involved

8 in the incident at the village school. The Stojanovic family home was

9 used as a military facility on the day, and Mijat Stojanovic testified

10 that he was expecting retaliation from the villagers. Indeed, that's why

11 the Serb police warned the family to leave the area after the 24th of

12 March.

13 The attack on those men was a spontaneous convulsion of violence

14 by the villagers of Gllogjan, whose homes and families had come under

15 attack. Plainly, it wasn't pre-planned. It plainly occurred

16 opportunistically when word spread that the Stojanovic brothers had

17 returned. Veselin Stijovic and Mijat Stojanovic both testified that the

18 whole village seemed to be turning on them, that people came out of the

19 fields and out of their homes to join in the attack. Many of those

20 involved, they said, were youngsters who would have been contemporaries of

21 the three teenagers killed on the 24th of March. None of this is to

22 excuse what happened, but it does place the incident in its proper

23 context. This wasn't the first Salvo in some planned campaign of violence

24 against the Serb civilian population on the grounds of their ethnicity; it

25 was a spontaneous reaction to the perceived involvement of these

Page 11112

1 particular individuals in the devastating attack on Gllogjan.

2 As to the allegation that Ramush Haradinaj stood by and let it

3 happen, we submit that the identification evidence is manifestly

4 unreliable. Each of the alleged sightings depends upon peripheral vision

5 in the most traumatic of circumstances. Mijat Stojanovic claims to have

6 caught sight of Mr. Haradinaj standing on the road to his house as the

7 three men were being marched into the village. They had been ordered to

8 keep their hands in the air, to keep their heads down, and not to look to

9 the left or right. The alleged recognition is based on a fleeting glimpse

10 in stressful and difficult circumstances over a distance of more than 70

11 metres. He later claimed to have caught sight of Mr. Haradinaj again as

12 he was leaving the KLA headquarters, but this sighting too was brief and

13 occurred in equally traumatic circumstances.

14 The alleged recognition by Dragoslav Stojanovic was, if anything,

15 even less reliable. Leaving aside for a moment the fact that his

16 account -- that he responded by saying that he did not recognise the man

17 in question, leaving that entirely to one side for a moment, looking

18 solely at the objective circumstances, Dragoslav Stojanovic claims to have

19 recognised Mr. Haradinaj while he was lying prone on the floor, face-down,

20 slipping in and out of consciousness. Tellingly, he said that he couldn't

21 provide any description of the other men who were there at the time

22 because he was face-down and, in his words, hardly able to have a proper

23 look. All of this Tribunal's jurisprudence warns, and warns clearly, of

24 the danger of relying on identification evidence of this poor quality.

25 The fact that these alleged identifications involve a claim of

Page 11113

1 recognition does not render them, in our submission, any less vulnerable

2 to error. Although the Stojanovic family lived next door to the

3 Haradinajs, neither witness had seen Ramush Haradinaj for years. Even in

4 recognition cases the opportunity for reliable observation is critical.

5 An unobstructed and clear view of the subject, over a reasonable period of

6 time, and a real and recent familiarity with the person's features are

7 prerequisites before any recognition evidence could be accepted as

8 reliable. As the leading English case of Turnbull points out, mistakes

9 are made even in the recognition of close friends and relatives.

10 It is notoriously difficult to evaluate the reliability of

11 identification or recognition evidence by the demeanour of the witness.

12 That's why the international jurisprudence consistently speaks of the need

13 for objective criteria, and applying any set of objective criteria, it is

14 clear that these identifications fall far short of the quality required

15 for a conviction on the criminal standard of proof.

16 But the difficulties with this identification evidence don't end

17 there. In Kupreskic, the Appeals Chamber specifically drew attention to

18 the additional risk which arises where a delayed assertion of memory is

19 coupled with a clear possibility that the witness has been influenced by

20 suggestions from others. Those words apply with their full force to the

21 evidence of Mijat and Dragoslav Stojanovic. In conversations with

22 Veselin Stijovic, both men named the people they recognised as having been

23 involved on the 18th of April; neither of them mentioned Ramush Haradinaj.

24 A week after the incident, Mijat Stojanovic was interviewed by

25 Marijana Andjelkovic and by a Serbian magazine called "Ilustrovana

Page 11114

1 Politika." In both interviews he gave a list of people that he

2 recognised, but in neither case did he mention the name of

3 Ramush Haradinaj. This delayed assertion of memory carries a particular

4 risk in the present case because the Stojanovic family had close

5 connections with the Serb security forces and because they hold

6 Mr. Haradinaj responsible for the loss of their home.

7 In short, we submit that there is no reliable evidence that

8 Mr. Haradinaj was present on the 18th of April, that the application of

9 any set of objective standards requires a conclusion that this evidence

10 falls short, and that there is no basis to conclude that he permitted the

11 ill-treatment alleged in Counts 3 and 4 to occur.

12 I see the time. I am going to move on to another topic and I

13 wonder if that might be a convenient moment.

14 JUDGE ORIE: If there's any subject you could deal with in two

15 minutes, fine; if not, then we will adjourn for the day.

16 MR. EMMERSON: There isn't in reality, no.

17 JUDGE ORIE: Then we will adjourn for the day. We adjourn until

18 tomorrow, Tuesday, the 22nd of January, quarter past 2.00, in Courtroom I.

19 --- Whereupon the hearing adjourned at 6.58 p.m.,

20 to be reconvened on Tuesday, the 22nd day of

21 January, 2008, at 2.15 p.m.