1 Tuesday, 22 January 2008

2 [Haradinaj Defence Closing Statement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.19 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 Mr. Emmerson, are you ready to continue your portion of the final

13 argument?

14 MR. EMMERSON: Your Honour, I am.

15 JUDGE ORIE: Please proceed.

16 MR. EMMERSON: When we broke yesterday, I had just finished

17 dealing with Counts 3 and 4. May I turn now to Counts 5 and 6, which

18 allege the ill-treatment of Stanisa Radosevic and Novak Stijovic.

19 The suggestion that these attacks were ethnically motivated was

20 certainly not reflected in the treatment of Rosa Radosevic. At one point

21 one of the men involved asked Stanisa Radosevic whether she was his

22 mother. And when she said -- when he said that she was, the man replied,

23 Then she is my mother too. Nor was there evidence of ethnically motivated

24 violence in the treatment of Novak Stijovic's father Konstantin and his

25 companions, who were apparently detained at about the same time. Taken as

1 a whole, the evidence shows that four of the six Serb civilians who were

2 detained at the Pozar crossroads on the 21st of April were released

3 unharmed. And so too were other Serb civilians briefly detained

4 elsewhere.

5 It is, in our submission, clear that the men who ill-treated

6 Mr. Radosevic and his companion picked on them because they believed that

7 they were associated with the attack on Gllogjan. They were asked in

8 terms about their associations with the MUP, and they were specifically

9 asked who had been responsible for shooting at Albanian civilians on the

10 24th of March.

11 Again, the Defence does not suggest that this excuses the

12 violence, but it does contextualise it. The assaults were the acts of

13 disorganized, ill-disciplined, and unauthorised village guards. They were

14 carried out by unidentified men under no clear command. Both witnesses

15 described the absence of organization and leadership among the groups that

16 they encountered, and their testimony painted a picture of armed villagers

17 taking to the streets with no defined or organized purpose. There is

18 nothing to suggest that their actions were authorised or condoned in any

19 way by Mr. Haradinaj or by any other person in authority.

20 I want to turn now to the six Serb civilians from Ratishe and

21 Dashinoc who were subsequently killed or went missing. The Prosecution

22 makes the sweeping assertion that these people must have been murdered by

23 members of the KLA, acting under orders. But there is, in fact, no

24 reliable evidence of how these people died or who killed them.

25 Counts 7 and 8 allege the murder of Vukosava Markovic and

1 Darinka Kovac. The Chamber knows next to nothing about the circumstances

2 of their disappearance, and their bodies were identified by so-called

3 traditional means, a process which has resulted in a proven

4 misidentification rate of 50 per cent on the facts of this case.

5 Counts 9 and 10 allege the murder of Milovan and Milka Vlahovic.

6 The only evidence as to the circumstances of their alleged abduction is an

7 uncorroborated hearsay statement related by Miloica Vlahovic, their son.

8 He testified that a man called Madjun Arifaj told him that his parents

9 were taken away by uniformed armed men, but Arifaj didn't know who these

10 men were. He provided no information about their appearance, their

11 ethnicity, or the date of the incident, and surprisingly Miloica Vlahovic

12 didn't ask him any of these questions. There's no corroboration and the

13 Chamber has no means of assessing the reliability of the source.

14 Vague and unsubstantiated testimony of this kind is of very little

15 evidential value. In our submission, it can't properly form the basis of

16 any reliable finding of fact.

17 Counts 11 and 12 allege the murder of Slobodan Radosevic and

18 Milos Radunovic. All of the available evidence points to the conclusion

19 that these men sustained their fatal injuries in an exchange of fire. The

20 Prosecution, though, is asking the Chamber to hold that these deaths

21 involved the commission of a war crime without any reliable evidence

22 whatsoever as to how this exchange of fire began or who fired the first

23 shot. The Chamber has heard evidence that both men were members of the

24 MUP reserve and that they bore a hostile intent towards the KLA. The

25 evidence is at the very least consistent with the hypothesis that

1 Slobodan Radosevic fired first, that fire was returned, and that both men

2 were mortally injured in the resulting exchange. Beyond that, it is in

3 our submission quite impossible to reach any reliable conclusions on the

4 evidence. It is for the Prosecution to prove that these deaths involved

5 the commission of war crimes, and the evidence falls far short of

6 establishing this.

7 Your Honours, no one doubts that these six people went missing

8 from the villages of Dashinoc and Ratishe during the indictment period,

9 but this doesn't begin to prove that they were unlawfully killed by

10 members of the KLA, still less that they were murdered pursuant to a joint

11 criminal enterprise involving Mr. Haradinaj.

12 In addition to these six individuals, the indictment alleges the

13 murder of a further six people of Serb ethnicity. The only direct

14 evidence of any KLA involved in any of these cases relates to the alleged

15 detention of Nenad Remistar in Jabllanice. I will deal with Jabllanice a

16 little later in my submissions.

17 As to the other five individuals, the Prosecution has adduced no

18 reliable evidence at all as to the circumstances in which they met their

19 deaths. Rade Popadic and Nikola Jovanovic were armed members of the PJP

20 and were on duty at the time of their disappearance. Both men were

21 carrying automatic weapons, and they went missing shortly after they left

22 the PJP contingent at the Baballoq refugee camp. There is no reliable

23 evidence that they were kidnapped. The Prosecution has not proved that

24 they were hors de combat at the time of their deaths. The evidence is

25 entirely consistent with the hypothesis that they were killed in an

1 exchange of fire.

2 Ilija Antic was discovered missing from his home in Lloqan on the

3 morning of the 29th of May. At the time of his disappearance, this was

4 disputed territory and the VJ were planning a major offensive in the area

5 which was due to begin on the very day he disappeared. There are any

6 number of possible explanations for the death of Mr. Antic.

7 Zdravko Radunovic went missing on the 16th of July somewhere

8 between Gjakove and Dobric. The only evidence suggesting KLA involvement

9 is derived from MUP interrogations of two KLA members called Krist and

10 Leke Pervorfi. The Chamber excluded the statements signed by these men

11 because there were strong grounds to doubt their reliability and

12 voluntariness. Leke Pervorfi has alleged that he was tortured and the

13 terrorism charges against both men were subsequently withdrawn. Any

14 information emanating from those interrogations must be regarded as

15 unreliable, and it is not in our submission open to the Prosecution to

16 seek to re-introduce them by the back door through the testimony of

17 Witness 68, who knew nothing at all about the conditions under which those

18 interrogations took place. There is simply no reliable evidence as to the

19 circumstances in which Zdravko Radunovic went missing or was killed.

20 The same is true of Velizar Stosic and Ivan Zaric. Ivan Zaric was

21 last seen heading for Grabanice on the 19th of May when the Serb attack on

22 the village was imminent, and Velizar Stosic went missing in Loxha on the

23 17th of July, but there is no evidence at all as to who abducted or killed

24 either of them or as to the circumstances in which they died.

25 In an effort to shore up its case, the Prosecution alleges that

1 the KLA targeted Serb civilian vehicles and mounted attacks on the

2 Baballoq refugee camp. But the hard facts on the evidence are these:

3 There is no evidence of a single civilian casualty arising from an alleged

4 attack on a vehicle travelling along the main road. If it were true that

5 these attacks were a regular occurrence, there would surely be some solid

6 evidence of this fact. But the only direct evidence that the Prosecution

7 has adduced relates to attacks on four armed police officers who were

8 using civilian vehicles as a means of camouflage.

9 The same picture emerges in relation to Baballoq. The Prosecution

10 has not adduced evidence of a single civilian casualty. The only evidence

11 of any attack on a civilian target was an account related to Witness 28 by

12 two men she said she mistrusted. And she mistrusted them because they

13 denied the presence of Serb police at a time when Albanians in the area

14 were telling her that Serb forces were firing from inside the settlement

15 itself.

16 All of the hard evidence shows that the targets of KLA attacks

17 during the indictment period were the Serbian PJP forces stationed in and

18 around the settlement. Rade Repic testified that about a hundred of his

19 men occupied the houses closest to the road, and the Trial Chamber has a

20 series of contemporary records which show that every single reported

21 attack was directed at members of the MUP. If the KLA had had a target --

22 a policy of targeting civilians at the refugee settlement, there would be

23 at least some solid evidence of this.

24 And finally, the Prosecution relies on generic evidence allegedly

25 gathered and assimilated by the MUP and the RDB. The methods used to

1 obtain much of this information included bribery, blackmail, and beating

2 of detainees in police custody. Coming as it does from one of the

3 protagonists to the conflict, we respectfully submit that unsourced and

4 unparticularised generic assessments of this kind call for the greatest

5 possible skepticism.

6 In conclusion, we say that the allegation of a joint criminal

7 enterprise to persecute, displace, and murder Serb civilians is completely

8 unsupported by the evidence.

9 I want to turn now to the alleged policy of persecution aimed at

10 perceived collaborators and opponents. There is not the slightest

11 evidence that Mr. Haradinaj ever authorised or condoned crimes of this

12 kind. In fact, we say that the evidence points to the opposite

13 conclusion. I want to group our submissions under four main heads.

14 First, we submit that the investigation, detention, or questioning

15 of suspected collaborators during an internal armed conflict in itself is

16 lawful providing any detention is carried out humanely and in accordance

17 with Common Article 3 and Additional Protocol II. It is not sufficient

18 for the Prosecution to prove a policy of investigation or even detention.

19 They must prove that there was a common criminal purpose to ill-treat

20 suspected collaborators by torturing or summarily executing them.

21 There is no evidence that Mr. Haradinaj ever did or said anything

22 suggesting that he condoned that sort of behaviour, and that is our second

23 submission. The only document issued in Mr. Haradinaj's name which even

24 mentions collaborators is the set of military police regulations adopted

25 on the 21st of June. But these regulations don't advocate mistreatment;

1 they advocate investigation. They were adopted at a meeting in which

2 Mr. Haradinaj spoke of the need to exclude criminal elements from the KLA.

3 They expressly stipulate a requirement that only those of good character

4 would be eligible for service with the military police, and they warn that

5 anyone abusing their uniform would be stripped of their functions. This

6 isn't evidence of a policy to ill-treat and summarily execute

7 collaborators.

8 Our third main submission is that the communiques issued in the

9 name of the so-called General Staff between 1994 and 1997 do not reflect

10 any policy on the part of Mr. Haradinaj. They were primarily propaganda

11 tools, issued by unidentified members of the self-styled operational wing

12 of the KLA, years before the situation in Kosovo escalated into open

13 conflict. Indeed, it's a striking fact that none of the communiques

14 claims responsibility for any attacks allegedly committed against

15 collaborators in the indictment region or during the indictment period.

16 No one knows who issued these communiques or who provided the

17 information they contained. At least some of them contained bogus or

18 exaggerated claims. Very few of the reported attacks on collaborators are

19 corroborated, and in those few instances where there is some independent

20 evidence, it relates to events occurring long before the indictment period

21 and outside the indictment area.

22 The Prosecution has completely failed to prove the nexus that it

23 alleges. There's not the slightest evidence to suggest that Mr. Haradinaj

24 ever provided any of the information contained in the communiques or

25 approved of their content. In short, there is nothing whatsoever to

1 suggest, much less to prove, that those documents reflected any policy on

2 the part of Ramush Haradinaj.

3 I want to move now to our fourth submission under this head. The

4 mere fact that some individual members of the KLA may have ill-treated or

5 killed suspected collaborators doesn't establish that they were acting

6 under orders or pursuant to any common criminal purpose shared by

7 Mr. Haradinaj. For the majority of victims of Albanian or Roma ethnicity,

8 there is no evidence at all as to the identity of the perpetrators or the

9 motive for the killings.

10 Despite attempts by the Prosecution to twist and massage the facts

11 of each of those cases into its overall case theory, there is direct

12 evidence of suspected collaboration in only a small number of cases.

13 The evidence shows that a total of seven victims named in the

14 indictment were detained allegedly on grounds of suspected collaboration

15 in two locations: Four of them in Jabllanice and three of them in Baran.

16 The evidence does not suggest, much less prove, that Mr. Haradinaj

17 authorised or condoned any of the ill-treatment which is alleged to have

18 occurred at either of these locations. Indeed, we say that his

19 interventions prove quite the opposite. The evidence shows that in every

20 case where a disappearance or detention was reported to Mr. Haradinaj, he

21 took action.

22 The Prosecution characterizes his interventions as superficial,

23 but it is, we say, important to keep clearly in mind that this is not a

24 case in which command responsibility is alleged. The Prosecution alleges

25 and the Prosecution must prove that these crimes were committed with

1 Mr. Haradinaj's agreement, acquiescence, or approval, and it is against

2 that allegation that his interventions fall to be judged.

3 Let me start with Jabllanice. As the Chamber is by now well

4 aware, Jabllanice had been a KLA stronghold for a number of years before

5 the indictment period. After the 24th of March, it continued to operate

6 independently. It was outside the area covered by the regional staff

7 established in May, and it was not incorporated into any joint command

8 structure until the 23rd of June.

9 Mr. Haradinaj was never in day-to-day command at Jabllanice and

10 there is no evidence to suggest that he was kept closely informed of the

11 actions of those who were. Apart from his intervention on behalf of

12 Skender Kuci, the evidence shows that he went to meetings in the staff

13 headquarters on a total of three occasions during the indictment period.

14 One of those meetings was attended by Bislim Zyrapi and other members of

15 the General Staff. Mr. Zyrapi was late for the meeting because he'd been

16 conducting an inspection of KLA positions in the village. He saw no signs

17 of people being detained there.

18 That is perhaps not surprising. Witness 6 testified that he was

19 the only person held at Jabllanice for most of the time between the 13th

20 of June and the 25th of July; and according to the dates he gave, he would

21 almost certainly have been working in the kitchen by the middle of July

22 when Zyrapi's visit took place.

23 None of this evidence supports the proposition that the detention

24 and alleged ill-treatment of suspects at Jabllanice would have been

25 immediately obvious to any commander who attended a meeting in the staff

1 headquarters in the centre of the village.

2 Let me turn now to the case of Skender Kuci. The evidence shows

3 that when Mr. Haradinaj was informed of his detention, he drove straight

4 to Jabllanice with Rrustem Tetaj and ordered Nazmi Brahimaj to release him

5 immediately. The Prosecution suggest that this is evidence of knowledge

6 and acquiescence, but that is simply not right. When Nazmi Brahimaj said

7 that Skender Kuci had been injured, Mr. Haradinaj issued an ultimatum. He

8 said that nothing of the kind should ever happen again because it was

9 damaging to the cause of the KLA. Those are not the words of a man who

10 approved of what had happened.

11 The plain fact is that there is no evidence that Mr. Haradinaj was

12 ever made aware of the alleged ill-treatment of anyone else detained at

13 Jabllanice, and there is no evidence that he ever entered the barracks

14 area on the outskirts of the village. It's not enough for the Prosecution

15 to make vague allegations that he must have known.

16 Witness 6 testified that he never once saw Mr. Haradinaj at

17 Jabllanice. In the final stage of his detention, during his period of

18 relative freedom, Witness 6 was actively trying to find out the names of

19 the main KLA figures involved and was able to see all of the movements

20 into and out of the barracks enclosure. If Mr. Haradinaj had been in any

21 way a party to the detention and alleged ill-treatment of the suspects

22 held at Jabllanice, there would be at least some evidence of this in the

23 Prosecution case but there's none.

24 The evidence of Witness 3 underlines this. He said that when he

25 was taken to Gllogjan by Lahi Brahimaj at the end of July, the commander

1 who dealt with him there treated him well from the outset. He was given

2 food to eat and asked whether he had relatives in Gllogjan he could spend

3 the night with. When he said that he didn't, he was given a place to

4 sleep and warned to keep away from the windows in case of a Serb attack.

5 Shortly afterwards, he was told that arrangements had been made for him to

6 return to his family, and after the intervention by the commander at

7 Gllogjan he said that nothing ever happened to him again.

8 In its closing brief, the Prosecution suggests that the commander

9 at Gllogjan must have been Ramush Haradinaj. Well, if that's right, then

10 it does nothing to support the Prosecution's case theory; on the contrary,

11 it establishes that Mr. Haradinaj arranged for the immediate release of

12 Witness 3, treated him humanely throughout, and organized his swift return

13 to his family. Those are not the actions of a commander who approved of

14 the ill-treatment of perceived collaborators and opponents.

15 Just standing back for a moment, the position is this: There are

16 four people who are on the evidence shown to have been accused of

17 collaboration who were detained at Jabllanice. On the Prosecution's own

18 case, out of those four Mr. Haradinaj intervened to secure the immediate

19 release of two of them and a third has testified that he had nothing to do

20 with his detention or alleged ill-treatment.

21 Let me turn to Baran. During the first half of the indictment

22 period, the Baran valley also operated independently. It too was outside

23 the regional staff and was not incorporated into a joint command structure

24 until the 23rd of June. Less than three weeks later, the village staffs

25 in the Baran valley had ceased to exist and the KLA volunteers had

1 relocated to the newly formed FARK barracks in Baran.

2 Three of the victims named in the indictment were detained at

3 Baran on various dates after the FARK barrack was established:

4 Kemajl Gashi, Zenun Gashi, and Sanije Balaj. The evidence shows that

5 Mete Krasniqi was directly involved in the detention of all three. He

6 detained and interrogated Kemajl Gashi in his private office close to the

7 FARK barracks, he ordered the arrest of Zenun Gashi, who was then taken to

8 the FARK barracks by Vesel Dizdari, and he was instrumental in the initial

9 detention of Sanije Balaj in full view of FARK soldiers immediately

10 outside the FARK barracks.

11 So it's necessary to focus in some detail on the role of

12 Mete Krasniqi and his relationship with the officers under Witness 17's

13 command. There is conflicting evidence as to whether Mete Krasniqi was a

14 member of the military police unit that Witness 17 established on the 12th

15 of July. Cufe Krasniqi, who helped to establish that unit, said that both

16 Mete and Avni Krasniqi were members and were under the command of

17 Hasan Gashi. To the extent that it's possible for the Chamber to rely on

18 any of the evidence given by Avni Krasniqi, he too claimed that both he

19 and his brother Mete were members of the FARK military police and that

20 they operated under the command of Witness 17.

21 But Rrustem Tetaj, who had been the subzone-commander or one of

22 the subzone-commanders in the regional staff and Sadri Selca testified

23 that Mete Krasniqi had not been formally appointed by anyone. A number of

24 other witnesses described him as a self-styled or self-appointed

25 commander. But whatever the formal position may have been, the evidence

1 shows that Mete and Avni Krasniqi held themselves out as military police

2 officers after the arrival of Witness 17. They were based in Baran and

3 the evidence shows that they worked closely with FARK officers under

4 Witness 17's command.

5 In this context, Witness 17's self-serving attempts to distance

6 himself from the actions of Mete Krasniqi and to suggest that there was

7 some sort of parallel command structure in operation in Baran were hollow

8 and unconvincing. It's worth just highlighting some of the key points.

9 It was Witness 17 who permitted Mete Krasniqi to operate from an

10 office within metres of his headquarters and who permitted him to enter

11 the FARK barracks at will. It was Witness 17's deputy, Musa Dragaj, who

12 took Medin Gashi to Mete Krasniqi's office when his father was detained

13 there. It was Witness 17 who had notes relating to the interrogation of

14 Kemajl and Medin Gashi in his own personal notebook. It was Witness 17

15 who personally authorised the detention and questioning of Sanije Balaj

16 after she had been stopped by Mete and Avni Krasniqi immediately outside

17 his barracks. And it was Witness 17 who had the name of Zenun Gashi

18 recorded on the list of missing and wanted persons in his own personal

19 notebook. His evidence about that list was evasive and defensive, but on

20 one point he was clear: He never brought the existence of that list to

21 the attention of Ramush Haradinaj.

22 Taken as a whole, this evidence suggests a far closer degree of

23 cooperation between Mete Krasniqi and the FARK brigade at Baran than

24 Witness 17 was prepared to admit. By contrast, there is no evidence of

25 any command relationship between Mete Krasniqi and Ramush Haradinaj.

1 At its highest, the evidence shows that Mete Krasniqi was a rogue

2 individual operating under no clear command, but he detained these three

3 people right under the nose of Witness 17. If it was anyone's

4 responsibility to ensure that crimes were not being committed in and

5 around the FARK barracks during the second half of July and August, then

6 it was Witness 17's. For him to come here and suggest that responsibility

7 for Mete Krasniqi's actions should somehow be laid at the door of

8 Ramush Haradinaj is to turn logic on its head.

9 In this context, I want, if I may, to make three particular points

10 about the abduction and murder of Sanije Balaj.

11 The first point is that each of the Prosecution's main arguments

12 ultimately depends on the credibility of Avni Krasniqi and his late

13 brother Mete. Avni and Mete Krasniqi were the sole sources of the

14 allegation that Idriz Gashi was intending to take Sanije Balaj to

15 Gllogjan. The uncorroborated allegation that Idriz Balaj moved the body

16 is also traceable directly back to Avni and Mete Krasniqi.

17 For our part, we submit that the Trial Chamber cannot place any

18 reliance on uncorroborated allegations made by Avni Krasniqi. It is, we

19 suggest, quite clear that he deliberately and repeatedly lied about his

20 own involvement in the detention and questioning of Sanije Balaj and about

21 the involvement of his brother Mete and his cousin Iber. The evidence of

22 Shaban Balaj, Witness 72, Vesel Dizdari, Cufe Krasniqi, and even

23 Witness 17 all established beyond doubt that it was Mete and Avni Krasniqi

24 who stopped and detained Sanije Balaj and that Avni and Iber Krasniqi were

25 present and interfering during her interrogation. Avni Krasniqi's denials

1 were patently untrue.

2 Once it is clear that a witness has lied on matters as fundamental

3 as this, the whole of his testimony must fall under suspicion. We submit

4 that the credibility of Avni Krasniqi calls for the most anxious scrutiny.

5 He was a prime suspect for the murder and has a previous conviction for a

6 string of violent robberies. His account of his own involvement in the

7 shooting was self-serving, unconvincing, and inconsistent with other

8 evidence.

9 For the reasons set out in our closing brief, we say that he had a

10 powerful motive to lie, not only about his own involvement in the killing

11 but also about who was responsible for the removal of the body.

12 Secondly, we submit that there is no credible evidence that

13 Idriz Gashi was a KLA commander or that he had been appointed to any

14 position of responsibility by Ramush Haradinaj. The very fact that he had

15 asked Witness 17 for a transfer to become one of his soldiers at the FARK

16 barracks in Baran is inconsistent with the suggestion that he had a

17 command responsibility elsewhere. But the transfer order signed by

18 Ramush Haradinaj on the 7th of July puts the issue beyond doubt. It

19 describes Idriz Gashi as "luftetari" or an ordinary soldier. It may well

20 be that like Mete and Avni Krasniqi, he falsely held himself out to be

21 some sort of commander; but there is clear and objective evidence that

22 this was not, in fact, the truth.

23 The third point I want to stress relates to the actions of

24 Mr. Haradinaj. The evidence shows that he took a personal interest in the

25 investigation into Sanije Balaj's death. He went with Gani Gjukaj to pay

1 his condolences to the family, and even more significantly he personally

2 confronted Mete Krasniqi in an effort to find out who had killed her.

3 Within days, Fadil Nimonaj or Tigri had been allocated

4 responsibility for investigating her disappearance. It is important to

5 stress that this was a KLA investigation. Fadil Nimonaj was a member of

6 the Dukagjini Plain Operational Staff and he had been appointed by

7 Mr. Haradinaj as commander of the military police on the 25th of July.

8 By the 21st of August, Mr. Haradinaj was based in Prapaqan

9 himself, and it was there that the investigation office was set up. All

10 of the relevant witnesses were interviewed, apart from Idriz Gashi who had

11 by then absconded. The evidence shows that Mr. Haradinaj took part in at

12 least one meeting with other commanders to discuss the progress of the

13 investigation. But these are not the actions of a man who approved of

14 what had happened. The Prosecution knows this, which is why it is driven

15 to argue that all of this must have been some sort of elaborate sham, but

16 there is not a scrap of evidence for that suggestion.

17 Leaving aside the individuals detained at Jabllanice and Baran,

18 there is, as I've said, no solid evidence that any of the other Albanian

19 or Roma victims named in the indictment were targeted as suspected

20 collaborators. I just want to take two particular examples.

21 In the case of Nurije and Istref Krasniqi, the Prosecution points

22 to rumours of collaboration, but there is an equally plausible alternative

23 hypothesis: That they were abducted and killed as part of a long-running

24 blood-feud with the family of Brahim and Avdi Krasniqi, a feud which had

25 already claimed two lives and caused several critical and life-threatening

1 injuries.

2 A murder committed for private motives of revenge under the Kanun

3 falls, we say, outside the joint criminal enterprise alleged on the

4 indictment. It is immaterial that the perpetrators may have been members

5 of the KLA. Indeed, there is evidence that the family of the victims were

6 members of the KLA as well. As Rrustem Tetaj put it, these families were

7 in a serious blood-feud and there was nothing to stop them killing each

8 other.

9 The suggestion that this couple was abducted on the orders of

10 Rrustem Tetaj and taken to Gllogjan is based on the flimsiest possible

11 evidence. It consists of uncorroborated, and quite possibly multiple,

12 hearsay from questionable sources including the abductors themselves. It

13 was denied by Mr. Tetaj and there is no reliable evidence to support it.

14 But what the evidence does show is that Ramush Haradinaj undertook

15 to make inquiries about the couple's disappearance and that Fadil Nimonaj

16 was then appointed to conduct an investigation in this case as well. None

17 of this is consistent with the allegation that Ramush Haradinaj was

18 involved or approved of what had happened.

19 Another illustration of the speculative nature of the Prosecution

20 case theory is the shooting of Tush and Illira Frrokaj. There is no

21 evidence at all to suggest that they were perceived to be collaborators or

22 opponents of the KLA. At the time they went missing, there had been

23 fighting in the area around Gllogjan, and according to Radovan Zlatkovic,

24 there was a heavily armed Serb check-point in Irzniq. The forensic

25 evidence suggests that the vehicle may well have been shot whilst the

1 couple were travelling inside it. Bullet-holes to the vehicle itself and

2 the presence of projectiles lodged in soft tissue lead to the inevitable

3 conclusion, said Mr. Dunjic, that the velocity of the bullet had slowed.

4 They could have been shot by anyone on either side for any reason.

5 By the time Tush and Illira Frrokaj disappeared, Ramush Haradinaj

6 had relocated to Prapaqan. In his absence, his brother Shkelzen responded

7 to the inquiries of Witness 21 by asking for photographs of the couple,

8 and saying that the KLA would look for them. Witness 21 testified that he

9 was genuinely trying to help. None of that suggests that the KLA

10 leadership in Gllogjan was in any way involved in the killing of this

11 couple. Again, it suggests quite the opposite.

12 The Prosecution has persisted in the allegation that Mr. Haradinaj

13 permitted the KLA headquarters in Gllogjan to be used as a place for

14 detention and torture of civilians, but there is no evidence of this

15 whatsoever.

16 Witness 17 said that he'd heard people using the expression "sent

17 to Gllogjan," and that it was his belief that people who were sent to

18 Gllogjan hardly ever came back. But under cross-examination it became

19 clear that this was yet another instance in which he had made sweeping

20 allegations in his 92 ter statement that he was unable to support with

21 hard facts.

22 It eventually came down to one conversation with an unidentified

23 village commander, who provided no concrete information, and Witness 17

24 could not even identify the village that this person came from.

25 Apart from the matters that I've already touched on, the only

1 other evidence the Prosecution is able to point to is the detention of

2 ECMM monitors Achilleas Pappas and Wolfgang Kaufmann and the ill-treatment

3 of their interpreter, but the evidence shows that the conduct of

4 Mr. Haradinaj towards that group was exemplary. Mr. Pappas said that

5 Mr. Haradinaj questioned them gently and politely. He behaved calmly and

6 reasonably towards them throughout, and organized an escort to ensure that

7 they could leave the area safely.

8 The assault on the interpreter was obviously quite wrong, but

9 there is no suggestion that Mr. Haradinaj was present at the time or that

10 any member of the ECMM team told him about it.

11 There is, we say, nothing to suggest, still less to prove, that

12 Mr. Haradinaj permitted that ill-treatment to occur.

13 It's worth just recalling that the situation on the ground in

14 Gllogjan and Irzniq on the day that this incident occurred is vividly

15 portrayed in the BBC video which the Trial Chamber has seen on a number of

16 occasions. The ECMM team had taken the very dangerous decision to drive

17 directly into this offensive against Gllogjan in a Land Rover that

18 resembled a Serb military vehicle a few days after the KLA had expressed

19 public concern that interpreters travelling with internationals were

20 misusing their freedom of movement to pass information on deployments and

21 targets to the Serb forces.

22 As Wolfgang Kaufmann said in his book, the men responsible for the

23 assault on the interpreter had been under Serb fire for days; their nerves

24 were shot and their fuses blew. He rightly recognised that Mr. Haradinaj

25 got the ECMM team out of a very difficult situation. These are not the

1 actions of a commander who approves of the ill-treatment alleged.

2 I want to turn now to the allegation that Mr. Haradinaj

3 established and maintained the Black Eagles as a means of intimidating the

4 public and mistreating civilians.

5 The evidence shows that the Black Eagles were established as a

6 rapid reaction force. They were initially based in Gllogjan, and latterly

7 in Irzniq, and would deploy to front line areas where the most intense

8 fighting was taking place. But the Prosecution has not begun to prove

9 that the Black Eagles engaged in any widespread pattern of crimes against

10 civilians. They have adduced evidence alleging the personal involvement

11 of Idriz Balaj in two pairs of counts on the indictment.

12 As we make clear in our closing brief, we adopt Mr. Guy-Smith's

13 submissions on the issue of identification, but whoever committed these

14 crimes, there is not the slightest evidence that they were authorised by

15 Mr. Haradinaj or that he condoned them or that he was even aware of them.

16 Dealing first with Counts 13 and 14, Witness 4 testified that he'd

17 never seen Ramush Haradinaj in Ratishe during the war, and all that he

18 knew about him was that he was a good soldier and a good commander who

19 neither killed nor imprisoned civilians. The evidence doesn't prove that

20 these crimes were committed pursuant to any wider criminal purpose or

21 agreement to which Mr. Haradinaj was a party; indeed for reasons more

22 fully set out in our closing brief we submit that the motive for the

23 alleged campaign against Witness 4's family remains entirely unclear.

24 Turning to Counts 35 and 36, the Defence submits that there is no

25 credibility evidence that the rape of Witness 61 was ever reported to

1 Ramush Haradinaj. The statements of Witness 1 on this issue are

2 internally inconsistent, uncorroborated, and inconsistent with other

3 evidence in the case. Having regard to the Chamber's decision under

4 Rule 92 quater, the Defence submits that no finding of fact could properly

5 be based on this uncorroborated allegation. Indeed, we note that the

6 Prosecution has adopted it neither in its closing brief nor in its oral

7 submissions.

8 The Prosecution does, however, rely -- the Prosecution does,

9 however, rely on a number of other occasions on which it alleges that

10 complaints were made to Ramush Haradinaj about the conduct of Idriz Balaj.

11 None of those instances stands up to serious scrutiny as an allegation

12 that Mr. Haradinaj failed to prevent or punish the commission of war

13 crimes.

14 First, the Prosecution relies on an alleged shooting incident in

15 Irzniq in which a man called Adem Hulaj was injured. This incident is not

16 included in the indictment and the Trial Chamber has heard no direct

17 evidence about it. But the hearsay evidence that the Trial Chamber has

18 heard is to the effect that the shooting was accidental. In the absence

19 of evidence to the contrary, there is no basis whatever to conclude that

20 Mr. Haradinaj failed to deal with the incident in a manner which was

21 appropriate to the circumstances.

22 Second, the Prosecution relies on the evidence of Witness 17 that

23 he reported an incident of insubordination to Mr. Haradinaj. This

24 incident occurred in Irzniq in July, when Mr. Balaj allegedly challenged

25 Witness 17 to show his identification, and Witness 17 responded by

1 producing an automatic weapon and saying that was all the authorisation he

2 needed. We say that there was no basis at all for taking disciplinary

3 action against Idriz Balaj over this incident; on the contrary, it was

4 Witness 17 who had reacted aggressively to what he perceived as a

5 challenge to his authority. In any event, this trivial incident does not

6 constitute anything approaching a crime.

7 Thirdly, the Prosecution relies on the allegation that during the

8 reorganization of the zone command on or about the 21st of August,

9 Witness 17 and Tahir Zemaj warned Mr. Haradinaj that Idriz Balaj was

10 committing crimes against civilians. But again, as so often was the case,

11 under cross-examination this was unsupported by hard facts. Witness 17

12 admitted that neither he nor Tahir Zemaj had communicated any specific or

13 concrete allegation to Mr. Haradinaj which could have been investigated or

14 which could have led to disciplinary action. They were merely repeating

15 generalised rumour.

16 The suggestion that Mr. Haradinaj responded with indifference to

17 this report is also completely unjustified. He responded in the only way

18 that any commander could respond to unparticularised rumours about one of

19 his men. He said that he would look into them. This conversation took

20 place towards the very end of the indictment period, at a time when

21 Mr. Haradinaj had surrendered his command to Tahir Zemaj. It does not

22 provide any support for the allegation that Mr. Haradinaj tolerated the

23 commission of crimes against civilians.

24 I'm going to move now to the third section of my submissions. I

25 don't know whether the Trial Chamber, given that the interpreters are

1 obviously working quite hard, would like to take the break at this stage

2 or would like to continue for a further period of time. I'm very happy to

3 continue.

4 JUDGE ORIE: Mr. Emmerson, I think we are now on our way for

5 almost one hour, and I think we should go until approximately one hour and

6 a half. So please proceed, and you may have noticed that now and then

7 French translation has some difficulties in --

8 MR. EMMERSON: Yes.

9 JUDGE ORIE: -- following the speed. If you would try and keep

10 that in mind.

11 MR. EMMERSON: I want to turn --

12 JUDGE ORIE: Is it -- by the way, is it true that you gave a

13 written copy of your --

14 MR. EMMERSON: Yes.

15 JUDGE ORIE: Because I notice now and then, especially if the

16 translation is a bit behind, that sometimes I hear small elements which do

17 not change what you say, but apparently, for example, one of the things I

18 noticed that something about the disciplinary action against Mr. Balaj,

19 the name was repeated. It could not be understood in any other way, but

20 that's one of the risks if the translation is behind that they're not, and

21 they cannot, it's not in any way blaming them for that, but they cannot

22 follow the spoken words anymore. Therefore, I urge you to slow down to

23 the extent -- perhaps also ask one of the others to keep a close eye on

24 that. I try to do the same, but otherwise we get tiny little differences

25 in the translation and what I heard until now, again, does not change the

1 meaning of what you said but it should be avoided to the extent possible.

2 I'm again addressing the French booth. It is not a criticism, it

3 is caused by your speed of speech, Mr. Emmerson.

4 Please proceed.

5 MR. EMMERSON: Can I then turn to the third main part of our

6 submissions, the finding of human remains in the vicinity of the

7 Lake Radoniq canal and the inferences which can properly be drawn from

8 this evidence.

9 Put shortly, we say that the evidence does not establish that the

10 canal was an execution site, nor does it establish that it was a

11 dumping-ground in territory exclusively controlled by the KLA. The mere

12 fact that the remains of a particular person were found in or around the

13 canal cannot lead to an inference that the individual concerned was killed

14 by members of the KLA pursuant to a joint criminal enterprise. We make

15 eight main submissions in relation to this part of the Prosecution case.

16 First, we make the rather obvious submission that each of these

17 individuals disappeared or died in different parts of the indictment

18 region, at different times during the indictment period. No one suggests

19 that these findings are evidence that these people all died in the same

20 incident. Many of the deaths occurred in circumstances which remain

21 entirely unclear, and there is no solid evidence of any connection between

22 them.

23 An important key to unlocking the Prosecution's case theory is the

24 position which they take in relation to the five unidentified sets of

25 remains. The Prosecution is asking the Trial Chamber to say that they

1 have proved beyond reasonable doubt that those five people were killed by

2 the KLA for a purpose connected with the alleged joint criminal enterprise

3 on the basis that their deaths fall into some pattern. But the

4 Prosecution has no idea who these people were, what their ethnicity was,

5 where they came from, where or when they died, or who killed them. The

6 only thing they have in common is that they were found at the canal.

7 This is a criminal trial not an exercise in speculative

8 hypothesis. But the reason I say these individuals are important is

9 because that's where the Prosecution's case theory starts to unravel,

10 because they're taking essentially the same approach for the majority of

11 these bodies. The mere fact that there is evidence of a person's name or

12 evidence of the place where they were last seen alive makes no difference

13 if there's no evidence as to who killed them or why. That's why I said at

14 the outset that it is essential to examine the evidence on each count

15 individually, and that's why Mr. Re tried to steer the Trial Chamber's

16 analysis in the opposite direction.

17 Secondly, we submit that there is no evidence as to when or how

18 these bodies came to be in the positions in which they were found. As

19 regards the bodies found in the natural section of the canyon, the

20 evidence shows that they were almost certainly washed into the position in

21 which they were found by the exceptionally heavy current that flushed

22 through the canal during 1998. They could have entered the water at any

23 point between the gates at Lluka e Eperme and the positions in which they

24 were found. And there is unequivocal evidence that Serb ground forces

25 were stationed in the vicinity of Lluka e Eperme from early May at the

1 latest.

2 In respect of the bodies found next to the canal wall, the Chamber

3 is faced with a conflict of expert evidence as to how long they had been

4 there. Professor Lecomte was of the view that it was more likely than not

5 that the bodies had been moved into position shortly before they were

6 found. Professor Aleksandric was of the opinion that at least some of the

7 bodies had probably been killed there, but he based his opinion solely on

8 the fact that there was projectile damage to the canal walls. I'll come

9 back to the significance of the projectile damage in a while.

10 But in the end, none of the experts could say with any degree of

11 certainty, and certainly not with the degree of certainty required in a

12 criminal trial, which, if any, of the bodies had been killed at the site

13 or how or when they got there. Professor Aleksandric agreed that it was

14 impossible to say for certain that any particular individual had been shot

15 at the canal, and he agreed that any attempt to distinguish between them

16 for that purpose would ultimately be a matter of speculation.

17 Whether taken separately or together, the expert evidence cannot

18 prove that any particular one of these individuals was executed at the

19 canal.

20 Leaving the expert evidence aside for a moment, the testimony of

21 Witness 21 strongly suggests that at least some bodies were moved shortly

22 before the arrival of the Serb forensic team. He visited the area twice,

23 and allowing the greatest possible latitude those visits took place in the

24 last week of August or the first week of September. He claimed to have

25 seen the bodies of a child and several adult males inside the troughs of

1 one of the cow-sheds at the economic farm. If his evidence on this is

2 reliable, then those bodies had certainly been moved between the date of

3 his visit and the arrival of the Serb forensic team. More significantly,

4 he crossed the canal in both directions on two separate occasions, very

5 close to the location where the bodies were subsequently found. He

6 identified the two bodies shown in the photograph floating in the concrete

7 section of the canal which were adjacent to where the other bodies were

8 subsequently found.

9 But despite the fact that the very purpose of his visit was to

10 look actively for human remains, he didn't see any bodies by the wall or

11 the ground by the wall adjacent to the canal on either of his visits.

12 Our third submission is that the Prosecution's total area of

13 control theory is a myth. Serb forces were present and operating in this

14 area throughout the indictment period, and there is direct evidence from

15 Serb officials that at various times those forces took part in armed

16 engagements in the very position where the bodies were found. Time

17 doesn't permit a thorough review of the evidence, but I do just want to

18 highlight a few key points.

19 Branko Gajic, head of VJ intelligence, testified that from the

20 beginning of the indictment period Serb forces were stationed in a

21 horseshoe formation around the lake, acting as a bone in the throat of the

22 terrorists. But importantly, he said that these forces included a forward

23 position at ground level at the base of Suka Radoniq.

24 Dragan Zivanovic, commander of the 125th Brigade, testified that

25 the Serb forces in this area engaged in what he called mobile camping,

1 which involved conducting exercises in the field. The distances involved

2 are not great. As Colonel Crosland pointed out, it would be very

3 surprising indeed if Serb forces on the ground had not conducted

4 operations in this area; this, after all, was a potential retreat route

5 for the KLA. And as Mr. Re reminded us yesterday, Colonel Crosland also

6 testified that Serb forces would conduct operations as far as 5 or 6

7 kilometres into the territory east of the main road.

8 But the evidence is more specific than that. Zarko Bajcetic, the

9 assistant head of the RDB in Gjakove, testified that from the time of his

10 arrival at the beginning of July there were frequent clashes between Serb

11 forces and the KLA in the area, some of which took place around the end of

12 the concrete section of the canal. He was asked directly whether, to his

13 knowledge, there had been armed clashes in the specific area where the

14 bodies were ultimately found, and he confirmed that there had. His

15 evidence on this could not have been clearer.

16 Equally, there can be no doubt that Serb forces were all over the

17 canal area during the August offensive against Gllogjan.

18 Colonel Zivanovic drew a map of this offensive, from which it is clear

19 that PJP forces were conducting operations at the economic farm and at the

20 canal itself. He drew an arrow which cuts right across the territory

21 around the economic farm, and these PJP forces weren't just passing

22 through, they engaged in close combat. Shemsedin Cekaj said that a KLA

23 soldier was killed at the canal at this time.

24 The canal of course passes directly through Irzniq, and as I've

25 already mentioned, Radovan Zlatkovic testified that there was a heavily

1 armed Serb check-point continuously situated at Irzniq from the 12th of

2 August onwards. And Witness 21 saw a Serb tank on the Ratishe side of the

3 canal at the time of his second visit to the area. The Prosecution has

4 clung on to the theory that Serb forces did not operate on the ground in

5 this area, but the evidence clearly shows that they did.

6 Our fourth submission leads on from the third. The fact that

7 there was projectile damage to the canal walls and that ammunition of

8 Chinese manufacture was found in the vicinity proves nothing. Once it's

9 accepted that armed engagements took place in the very area where the

10 bodies were found, the significance of this evidence disappears.

11 Can I just draw attention to three matters in particular under

12 this heading. First, there was projectile damage to both canal walls,

13 going in opposite directions, which is entirely consistent with an

14 exchange of fire across the canal. Secondly, there is no forensic

15 evidence to connect the projectile damage on the walls with any of the

16 projectiles recovered from the human remains found in the vicinity. And

17 thirdly, there is documentary evidence showing that a few months after the

18 end of the indictment period PJP forces operating out of Gjakove were

19 being issued with a set of Chinese ammunition, in addition to their normal

20 regular ammunition sets, in what can only have been an attempt falsely to

21 implicate the KLA.

22 Prosecution alleges that the canal was a KLA execution site, and

23 it's for the Prosecution to prove this. They have completely failed, in

24 our submission, to discharge that burden.

25 Our fifth submission relates to the bodies discovered at the

1 economic farm. The evidence shows that these individuals disappeared

2 between the 30th of August and the 6th of September. The post mortem

3 evidence is consistent with those dates. The Prosecution has never sought

4 to explain why it removed those individuals from the indictment, but in

5 our submission the reason is obvious. These people died at the time of

6 the Serb September offensive.

7 But one of those bodies, RE-1, was recovered by the Serb forensic

8 team on the 11th of September before any of the other bodies were

9 recovered. We say that the removal of RE-1 from the indictment is a clear

10 concession - and a correct one - that the central thrust of the

11 Prosecution's case theory is flawed. The mere fact that remains were

12 found in this area can't prove that they were killed by the KLA.

13 As to the remainder of the RE bodies, the expert evidence of

14 Professor Lecomte is that they had been dead for between eight and 15 days

15 at the time of their discovery on the 23rd of September. Well, if that's

16 right, then it would mean that they were killed and placed into the

17 positions in which they were found between the 8th and the 15th of

18 September, at a time when this area was fully under Serbian military

19 control.

20 Now, the Prosecution suggests that the economic farm bodies are

21 irrelevant because they have been removed from the indictment, but in our

22 submission they are clearly not irrelevant. They raise the real

23 possibility that the bodies of people killed in the Serb September

24 offensive were dumped at the economic farm in an attempt to implicate the

25 KLA.

1 Our sixth submission relates to the two bodies that disappeared

2 from the concrete section of the canal at some point between the 8th and

3 the 11th of September, and I can take this shortly. In its closing brief,

4 the Prosecution accepts that these bodies were never recovered by the Serb

5 forensic team and seeks to suggest that they must have been washed along

6 the entire length of the canyon and swept into the lake itself. That

7 submission is inconsistent with the report of the specialist MUP diving

8 team who examined the canyon and ruled out the possibility that bodies

9 could have washed into the lake, an assessment which Professor Aleksandric

10 who was there on the ground accepted as correct.

11 If those two bodies were not washed into the lake, then the

12 question which arises is: What happened to them? At the very least, it

13 suggests that the integrity of the crime scene may have been compromised,

14 but it is equally consistent with the hypothesis that they were removed

15 because somebody in the operation knew that they could be identified as

16 victims of crimes committed by Serb forces.

17 It would certainly not be the only time that Serb forces had

18 engaged in the removal of bodies to cover up the commission of war crimes.

19 And the presence of Vlastimir Djordjevic in the initial reconnaissance

20 party is an ever-present reminder of the need for special caution in

21 evaluating the integrity of this investigation.

22 Our seventh submission relates to the statements allegedly made by

23 Bekim Kalamashi, Zenel Alija, and Lujlj Musaj during their interrogations

24 by the MUP and the RDB. We suggest that these statements were nothing

25 more than a pretext for the discovery of the canal. There is credible

1 evidence before the Trial Chamber suggesting that they were obtained as a

2 result of ill-treatment, allegations that were first made during the trial

3 of Zenel Alija and Bekim Kalamashi in January 2000, and there are points

4 of detail in the evidence of the Serb police witnesses which give credence

5 to these allegations.

6 But there are also serious and unexplained anomalies with the

7 statements themselves. We suggest, and suggest clearly, that a review of

8 the transcript leads to the inevitable conclusion that the testimony the

9 Chamber received in an effort to explain these anomalies away from

10 Radovan Zlatkovic, Bogdan Tomas, and others was patently untrue. Even the

11 public prosecutor, Zoran Babic, who attended the canal on the 10th of

12 September, and who would have been provided with the complete case file

13 from the MUP interrogations, recorded in an official document to the Pec

14 district court on the 9th that Zenel Alija and Bekim Kalamashi were at

15 liberty, when in fact they'd been in MUP custody for nearly a week.

16 I don't propose to go through all the details in my oral

17 submissions; they are fully set out in our closing brief. But we do say

18 that the falsification and backdating of documents, the pretense that

19 people were at liberty when they were in custody, and the unexplained

20 insertion of additional text into statements all point to one conclusion:

21 That this aspect of the investigation was a sham. The obvious inference

22 is that these men had words put into their mouths and were beaten into

23 signing statements which had been written for them.

24 It's all consistent, in our submission, with the other anomalies,

25 and raises the real spectre that MUP personnel were engaged in a concerted

1 fabrication of evidence, and one doesn't have to look far to see the

2 reason.

3 There's no doubt that the discovery of the canal was a propaganda

4 coup for the Serbs, and the officials on the ground were inexplicably fast

5 in exploiting that. Within hours of the supposed discovery, journalists,

6 international observers, and even senior Serb politicians from Belgrade

7 were at the scene. Most surprising aspect of this is that they arrived at

8 the canal before its discovery had even been reported to Zarko Bajcetic,

9 the man who sent the reconnaissance party. No one could provide any

10 explanation for this, and Mr. Bajcetic confirmed that the reconnaissance

11 team were incommunicado because there was no radio or telephone coverage

12 in the area.

13 I see the time. I'm going to move on to one or two topics towards

14 the end. I've got about five or ten minutes to go. I'm happy to break at

15 this stage or ...

16 JUDGE ORIE: If you could do it in seven minutes, then perhaps

17 it's best to finish it now --

18 MR. EMMERSON: I think I can do it in seven minutes.

19 JUDGE ORIE: -- then we have a more natural point where we have a

20 break.

21 Please proceed.

22 MR. EMMERSON: Our eighth and final submission concerning the

23 canal relates to the ballistics evidence. For reasons which are set out

24 in our closing brief, we submit that the Prosecution has not proved that

25 the cartridges found at the canal were linked to cartridge cases allegedly

1 recovered in Gllogjan on the 24th of March. Neither the opinion evidence

2 of Milutin Visnjic, nor the testimony of Nebojsa Avramovic establishes the

3 nexus the Prosecution alleges. There can be no justification for reading

4 into the ballistics report words which flatly contradict what it says.

5 And even if there were, the likelihood that weapons were circulating and

6 the undisputed evidence that there had been armed engagements in the area

7 of the canal provides a complete explanation for the presence of cartridge

8 casings in that vicinity.

9 Before I leave the subject of the canal, I just want to say a

10 final word about Witness 17's account of the meeting on the 21st of August

11 at Prapaqan and his claim that one of those present had made a remark

12 about the fish in Lake Radoniq getting fat on human flesh.

13 We say that in this, as in so many other aspects of his testimony,

14 there are serious grounds to doubt his reliability. He made no remark --

15 no note, I'm sorry, no note of the remark in his personal notes of the

16 meeting, and the claim that it was met with silence was effectively

17 withdrawn in answer to a direct question from the Trial Chamber when he

18 said he could not remember one way or the other whether there had been an

19 objection or response.

20 Nor has the Prosecution established any independent corroboration

21 for his testimony about this meeting. Although Zoran Stijovic said that

22 this remark was reported to the RDB, he was unable to exclude the

23 possibility that Witness 17 was the source of the RDB's information. He

24 said that the remark had been reported by only one of the RDB's sources at

25 the meeting, and he confirmed that those sources included members of the

1 FARK.

2 May I turn briefly before I conclude to the law. All of our

3 submissions are set out in full in our closing brief. I'm going to deal

4 with them very briefly indeed.

5 We say that the counts alleging crimes against humanity are

6 unfounded; the crimes alleged, even if proved, do not amount to a

7 widespread or systematic attack on the Serb civilian population. They're

8 not on such a scale or such a frequency or intensity as to constitute an

9 attack on a civilian population as such. Nor can it be said that the

10 individuals of Albanian or Roma ethnicity named in the indictment are

11 sufficiently numerous to constitute a civilian population for this

12 purpose. They were very limited in number compared to the civilian

13 population as a whole, and it can't be said that the civilian population

14 itself was the subject of an attack or that perceived collaborators were

15 of a class or category so numerous that they themselves constituted a

16 civilian population. And we adopt and urge upon you the analysis of the

17 Trial Chamber in Limaj.

18 So far as armed conflict is concerned, we say the evidence shows

19 that the end of May had marked a watershed when a series of intermittent

20 and sporadic armed engagements spilled over into full-scale armed conflict

21 for the reasons we have set out. In conclusion, then, we submit that the

22 Prosecution has failed to prove the existence of the joint criminal

23 enterprise alleged on the indictment, the Prosecution has failed to prove

24 Mr. Haradinaj's personal participation in any of the crimes alleged, the

25 Prosecution has failed to prove that he ordered, authorised, or condoned

1 any of these crimes, and none of the allegations concerning his alleged

2 contribution to the joint criminal enterprise have been proved. We submit

3 he's entitled to be acquitted.

4 JUDGE ORIE: Thank you, Mr. Emmerson.

5 We will now have a break. Could you inform us about who is going

6 to continue after the break. Would it be your colleagues? Because you

7 spent until now 128 minutes, which is --

8 MR. EMMERSON: Yes.

9 JUDGE ORIE: -- a little bit over two hours. That means that

10 approximately -- a little bit less than two and a half hours would remain

11 for the other counsel.

12 MR. GUY-SMITH: That's what we understand we have left.

13 JUDGE ORIE: Yes. And will you take both more or less an equal

14 share of that time or ...

15 MR. GUY-SMITH: We will share and share alike.

16 JUDGE ORIE: Yes. Yes, that means --

17 MR. GUY-SMITH: I think the Chamber may be asking a slightly

18 different question which is: Will both of us finish in time to proceed

19 with any further arguments on any other issues?

20 JUDGE ORIE: I had in mind, as a matter of fact, that the close to

21 two hours remaining that that would take approximately the remainder of

22 the day, and I was just wondering whether the next break would be after

23 you had finished or after Mr. Harvey is finished, dependent on who starts

24 after the break or whether part of one of your submissions you would have

25 to consider to have a little bit longer first session and then a shorter

1 second one. Then of course I was also concerned whether that would be

2 suitable for the interpreters, technicians, and transcribers.

3 MR. GUY-SMITH: I believe that most probably I will be going --

4 not most probably, I will be going next and most probably I will finish

5 at/or shortly before the break.

6 JUDGE ORIE: Yes. Then we'll have a break and we'll resume at 20

7 minutes past 4.00.

8 --- Recess taken at 3.52 p.m.

9 --- On resuming at 4.29 p.m.

10 JUDGE ORIE: Mr. Guy-Smith, first of all, the apologies of the

11 Chamber for the late start. There were reasons why we were delayed.

12 Please proceed.

13 MR. GUY-SMITH: One golden thread. One golden thread is always to

14 be seen in the temple of justice, and that is the duty of the Prosecution

15 to prove the accused's guilt subject to what it has undertaken to prove

16 beyond a reasonable doubt. It is to the evidence introduced at trial and

17 to it alone that a finder of fact, and here you, this Chamber, are to look

18 for for that proof. No conjecture, assumption, innuendo, or speculation.

19 A reasonable doubt as to the guilt of any of the accused may arise from

20 the evidence, conflict in the evidence, or the lack of evidence. The

21 Prosecution has failed to prove their case beyond a reasonable doubt. You

22 should find each of the accused not guilty, and we submit that in this

23 case that would be an appropriate finding.

24 I wish to backtrack for a moment and take a look at some of the

25 things -- or really one thing that happened during the course of the

1 trial, and that was during the examination of a particular witness when

2 the issue of apartheid came up and the Prosecution objected to the use of

3 the term, "apartheid," the policy or practice of political, legal,

4 economic, or social discrimination. And the reason that I raise it now is

5 because in the introduction to the Prosecution's brief and in the comments

6 made by Mr. Re yesterday, he indicated that the Serb authorities were

7 engaging in increasingly, the next word, legal repressive means, as if

8 those who would fight against, protest against, or otherwise complain

9 against legally repressive means are at fault.

10 And indeed, if we take a look at the evidence and the testimony of

11 many witnesses who came from one side, we will find that that indeed was

12 their attitude about those that fought against them. In reviewing for but

13 a moment the notion of legally repressive means, I'm reminded of what I

14 was talking about before, which is the apartheid legislation in South

15 Africa, the 1940s, the 1950s, the 1960s, the 1970s, the Vichy laws, the

16 Nuremberg laws, and for a moment I'll comment on the May laws of 1882,

17 when Tsar Alexander III banned Jews from areas and set quotas on higher

18 education, quotas as to how many young men or women could attend school.

19 And the reason that I mentioned that, quite specifically, on a personal

20 level is because my great grandfather was beaten to death because he

21 refused to give up the quota for my grandfather. And my grandfather and

22 the rest of the family after that left Russia.

23 To use such a term as "legally repressive means" in this forum and

24 give it any basis of credibility is extremely troublesome.

25 What was the reality here? What happened? A small group of

1 people attempted to bring their communities together to fight to free

2 themselves from the legally repressive laws; to get weapons to fight to

3 free themselves from the legally repressive laws; to get uniforms and

4 supplies to fight to free themselves from the legally repressive laws; to

5 attempt to organize an army to fight to free themselves from the legally

6 repressive laws; to set up hospitals to care for the wounded and dying who

7 had fought to fight -- were in their fight to free themselves from legally

8 repressive laws.

9 You've heard evidence here that after what occurred in Prekaz,

10 Likoshan, and Gllogjan there was a grand swell of support. There's no

11 reason in such a situation to intimidate people who were already

12 supporting you. There's no reason to do so, though as the Prosecution has

13 stated in the fourth amended indictment, to consolidate control over the

14 Dukagjin Zone because do recall, please, that that is what is considered

15 to be and what is identified as being the common criminal purpose.

16 That common criminal purpose has changed in the argument made

17 yesterday and I'll speak about that in a moment.

18 The Prosecution position in this case is, in our submission,

19 intellectually and, at times, factually inaccurate at best. They have

20 avoided the reality of what was occurring on the ground in the region and

21 to the people living there. They have compartmentalized their case when

22 convenient and generalised when convenient. They have engaged in a number

23 of unsubstantiated assertions; in fact, the Prosecution in this case has

24 been a moving target, the goal-posts have moved depending on what is most

25 advantageous to their case or what they believe they should go for next,

1 as opposed to what the evidence they have adduced is and what it proves.

2 When given the opportunity to confront their own witnesses - and I

3 say that again, their own witnesses, because each and every witness in

4 this case was brought to you by the Prosecution, each and every witness

5 was either spoken to by an investigator and/or proofed prior to

6 testifying. In that context, when given the opportunity to confront their

7 witnesses with contradictions or differences from that which they

8 testified to on a number of occasions, and important ones, they have

9 avoided obtaining the information whilst that witness is testifying viva

10 voce and under oath, instead on occasion they have attempted to impeach or

11 discredit such testimony after it's all over.

12 It's a form of cherry-picking retroactively, and an example of

13 that most assuredly is a discussion of when the Black Eagles were formed

14 and the evidence of Ylber Haskaj in that regard which I will get to

15 further on.

16 One of the things that's occurred here, and it's important because

17 all parties I believe should recognise that the Kosovo Liberation Army was

18 a nascent group at best struggling to put together an effective fighting

19 force, and we have been engaged in the activity of attempting to fit a

20 square peg into a round hole. The best example of is that is when they

21 discuss what occurs in a normal military in paragraph 172 of their brief.

22 The KLA was comprised of young men, men in their 20s, without

23 great experience, if any experience, in what some call the art and others

24 call the horror of war. This was not a normal military. What's at stake

25 in this case, apart from what's at stake in every case where there is a

1 criminal matter? Part of what's at stake in this case is, I suggest to

2 you, the integrity of a system. You gentlemen cannot convict when the

3 core of the Prosecution's case is built on unproven assumption and

4 conjecture, reliance on rumour, unreliable testimony, unreliable forensic

5 evidence, manufactured and fabricated evidence, at times orchestrated as

6 we've heard clearly by the MUP, obtained forged or obtained -- forged or

7 obtained from young men beaten or tortured information. It is, and I put

8 this most simply, a cancer at the heart of this case, and it's what this

9 evidence shows when you go through it patiently, when you go through it

10 carefully, when you go through it scientifically, logically, methodically,

11 that's what it shows. And you cannot convict on that evidence, we submit.

12 There are many, many reasonable doubts buried right in the heart of this

13 case, and they have been demonstrated to you. We do not have to prove

14 them, but the evidence have shown.

15 In Mr. Re's opening statement and also in his closing remarks, he

16 has said that because bodies were found by the concrete wall, that proves

17 that it's an execution site. At the beginning of the case, he said,

18 including other things, that - and this is at 403 - because body R-1 was

19 found near the wall, that proves this was an execution site. Well, when

20 he made the comment to you then, and similarly when he has made the

21 comments that he's made to you yesterday, he has engaged in an old logical

22 fallacy: Post hoc ergo propter hoc, after this, therefore because of

23 this. And this fallacy is based on the mistaken notion that simply

24 because one thing happens after another, the first event was the cause of

25 the second event. This reasoning has been recognised as the basis for

1 many erroneous beliefs and has been recognised as the basis for many

2 failures of proof.

3 In addition, there have been what we submit are misstatements,

4 material misstatements, in the record of which I will give you two

5 examples. Mr. Balaj was already a prominent figure, referring to the

6 assertion that he was seen on March -- sometime after March 24th at a

7 funeral in Gllogjan, paragraph 237. This claim finds no support in the

8 evidence. This claim comes from Witness 1. It is asserted to come from

9 an unnamed, unknown, unsourced Albanian villager who Witness 1 claimed

10 pointed Idriz Balaj out at a funeral. It is untested, and they have from

11 this one piece of what we submit is unreliable information generalised to

12 a non-existent assertion of proof that of common knowledge that he was a

13 prominent figure.

14 Another example may be found at paragraph 482, where they

15 attribute to him being involved in an execution based on evidence that was

16 never admitted.

17 I want to turn for a moment to a couple of issues because they

18 need a bit of attention, and then I will place the balance of my remarks

19 to the specific -- some specific counts.

20 It has been suggested that Idriz Balaj intimidated Witness 17.

21 This is the intimidation that Witness 17 suffered we found at page 7572

22 and 7573 of the transcript.

23 "Initially I tried to consider it as a joke," starting at line

24 22, "but when he insisted that I reacted and I asked him whether he knew

25 me, who I was, he said, No, I don't know you. Then I showed him an

1 automatic weapon and a few hand-grenades and I told him that I was a

2 commander of a brigade and nobody could stop me from going to the military

3 hospital to visit a friend, and that is why I asked Ramush to either

4 dismiss him or to discipline him because incidents like these could lead

5 to greater consequences."

6 That's not intimidation; that's a professional military man taking

7 umbrage at some young upstart in his view challenging his authority.

8 The Prosecution also has discussed the beating of an interpreter,

9 and an examination of the record in that regard - and I certainly don't

10 condone the beating of anyone - an interpreter taller than Idriz Balaj, he

11 is hitting him, kicking him, and his nerves are shot. He is concerned

12 that something may be amiss, and the incident is resolved without much

13 further ado. They were stopped in a war zone during a particularly

14 horrific time for members of the KLA, during a period of time when they

15 were suffering one of the major onslaughts by the Serbian forces.

16 Going through not only the Prosecution's brief but also listening

17 to the remarks made yesterday, I think that it's not unfair to say that

18 they are attempting to establish Idriz Balaj's guilt based on bad

19 character, based on rumour, gossip; but that does not substitute for

20 evidence nor in any fashion prove his culpability or his guilt beyond a

21 reasonable doubt.

22 In attempting to rely on this kind of evidence, rumours of his

23 misconduct, they do at least three improper things: They violate the

24 fundamental rule of fairness in contravention of Article 21 that prohibits

25 the use of such testimony; they, as I said, attempt to establish the guilt

1 of Mr. Balaj by hearsay gossip and not through testimony that is

2 trustworthy and inherently believable; and thirdly, they leave him so

3 painted with no means of defending himself. For what is rumour but a

4 cruel story on wheels and every hand oils those wheels as they run. It's

5 like a virus. It has a viral nature that spins out of control. It's been

6 said about rumour over the years, enemies carry a report different in form

7 than the original, but one invents the rest in large. Rumour opens a

8 veritable Pandora's box of irresponsible gossip, innuendo, and smear. It

9 is not relevant evidence in any respect to prove a particular fact nor is

10 it reliable testimony as to remarks and stories of unidentified people

11 constituting generalised hearsay and gossip.

12 It was said in this court at one point by the Chamber, at 1007:

13 "If you have no further information about the source of these rumours,

14 then I would invite you," leaving the name out, "to move on to your next

15 subject," because you understand in a court of law, which is where we are,

16 in a court of law, not in a coffee shop, not in a bar, not sitting at a

17 table where any kind of remarks can be made. Rumours in a court of law

18 can play only a very limited role at all.

19 Questions have been asked, statements have been made, He was the

20 most notorious, he was the most brutal, and no facts to support these. As

21 a matter of fact, when asked again and again, Witness 17 had no

22 information, Mr. Tetaj said, Oh, yes, when he comes the people love him.

23 If there's been a Serb attack, because what does he do? He protects the

24 people. But when the Serbs are not there, the people fear him and his

25 presence because the knowledge that he is present in the area can bring by

1 and bring back to the village the very thing that they are so concerned

2 about, which is war. His job was to command a special rapid intervention

3 unit to go where he was needed, to fight in those battles, to train young

4 men to give their lives to fight against the legally repressive means

5 brought upon them by the Serbian authorities.

6 Finally, in terms of dealing with the issue of rumour, it has been

7 said in more than one culture that trying to squash a rumour is like

8 trying to catch the wind or water with a net. And rumour, gossip, without

9 a leg to stand on will get around some other way.

10 I suggest to you that in viewing the evidence as it relates to

11 Idriz Balaj, you pay particular attention to the extent to which you're

12 being invited to damn him for a reputation as opposed to analyse the

13 actual facts that exist.

14 I'm now going to discuss specifically Counts 13 and 14, counts in

15 which there has been an allegation that Mr. Balaj was personally involved.

16 Criminal trial is, among other things, an attempt to reconstruct the past

17 event to aid the trier of fact in determining what happened. Physical

18 trace evidence, such as finger-prints, fibres, or blood are often used to

19 assist this reconstruction, because when they are properly collected and

20 analysed, trace evidence can help determine the nature of the events and

21 the identity of the perpetrator. Eye-witness evidence can be likened to

22 another form of trace evidence, in effect it is a criminal event involving

23 an eye-witness, leaves a trace in the brain of the eye-witness; the memory

24 as trace evidence has rich implications. Like physical evidence, memory

25 trace evidence can be contaminated, lost, destroyed, or otherwise made to

1 produce results that can lead to an incorrect reconstruction of the event

2 in question. Like physical trace evidence, the manner in which memory

3 trace evidence is collected can have important consequences for the

4 accuracy of those results.

5 When dealing with memory, it is well acknowledged and recognised

6 that nothing tends to obscure the memory so much as the lapse of time, and

7 nothing can be as dangerous as relying on such memory which has been

8 objectively shown to potentially have been influenced by factors that have

9 altered the reality of what happened. This is particularly true where the

10 facts testified to occurred in the early youth of a witness. Such

11 testimony is unsafe to act upon except so far that it is borne out by

12 those facts which have been objectively proven.

13 There's a famous study which I'm sure the Chamber's aware of, as

14 the Chamber has indicated it has a fair, if not comprehensive appreciation

15 of the area of eye-witness identification, it's the "lost in the mall"

16 study, where young people -- well, maybe actually not so young, they were

17 college students and even older, were asked whether or not they had ever

18 been lost in a mall and they said, No, it didn't happen. Then they

19 received information from other people who they seemingly would have

20 trusted such as professors or mothers or fathers or uncles who related

21 such an incident where they had been lost in a mall. Over 25 per cent of

22 the subjects who initially completely denied such an event, after having

23 the most elementary of suggestions, completely agreed that they

24 participated in an event that never took place with people who were not

25 there.

1 Now, I dwell on these considerations at the outset, because as the

2 Chamber is aware the most common cause of wrongful convictions is

3 eye-witness misidentification. This is not news. This is something that

4 anyone who was involved in the business of law, police, prosecutor,

5 defence attorney, judge knows about. This information has been known

6 since 1932 in a book by Professor Edwin Borchard. In later studies that

7 have been done and specifically a study that was done in the United States

8 where much of this work has been vigorously pursued, dealing with

9 exonerations, in 64 per cent of the cases that have been exonerated

10 between the years of 1989 through 2003, at least one eye-witness

11 misidentified the defendant. In almost 90 per cent of the rape cases

12 there has been a misidentification.

13 Now, why is that important in this case? Pretty obvious reasons.

14 In order to understand what occurred in the minds of - and I'm going to

15 start with - Witness 4, I note for purposes of this discussion that there

16 has been no mention of Witness 19. It is my assumption that the

17 Prosecution concedes that he made no identification at all. If we use the

18 following time-line for the moment and some objective facts, this is what

19 we find to be true.

20 Slobodan Praskevic was shot on March 2nd. The mother returns two

21 weeks later, March 16th. The first visit to the house is March 30th, two

22 weeks later, according to the testimony of Witness 4. Now, the first

23 visit to the house is a visit where there are people in black. Witness 4

24 very clearly makes it known that he does not see anybody, let alone the

25 individual that he identifies as Toger on the 30th. There is an illusion

1 that by March 30th, because they're the special unit of the night, that

2 the special unit of the night must be the Black Eagles, but we have

3 information from Ylber Haskaj that the Black Eagles were not formed until

4 May 14th.

5 One to two weeks later, so it's between April 7th and April 14th,

6 Sister S who has been taken on the first night returns. At that time,

7 according to the information that we have, Witness 4 could not have seen

8 her because -- I'm sorry, could not have seen him and recognised him

9 because he was at a distance of 50 to 60 metres away by a car or in a car.

10 The third time, the third sighting of what the Prosecution claims is Toger

11 is a week to two afterwards, where once again he does not see the

12 individual who he claims to be Idriz Balaj.

13 Now, what happens, and which is very, very important in a place

14 where you do need to really look at his testimony is when the individual

15 returns after he has dropped Sister S off and has returned to his home

16 some 40 minutes after that has occurred, he testified that two people came

17 up in a car and when asked who were these people, what were they wearing,

18 he said, Well, I recognise one of them, the same person I've seen all the

19 times before. But that's impossible, it couldn't have happened. He

20 didn't see him.

21 So what happened here? What is going on with this young man's

22 memory? And I please, I call him not a liar, but I do call him mistaken.

23 And I suggest to you the Chamber's well aware of what occurred. His memory

24 was infected. By what? By seeing Idriz Balaj on television, by seeing

25 the name "Toger" attributed to Idriz Balaj on television, not only in a

1 notorious case did this occur but it also occurred when there was an

2 attempted assassination on his life. This young man wishes to resolve his

3 pain, and I understand that. He wishes to resolve his case and he wishes

4 to attribute some responsibility to someone, but based on the evidence

5 that's before this Chamber I suggest to you that that's not safe or

6 reliable.

7 You could rely on - and it's been suggested - some circumstantial

8 evidence perhaps. What would that be? Black uniforms. Who in this case

9 did not wear a black uniform? Villagers wore black uniforms to emulate

10 those that they supported. Pjeter Shala, who the Prosecution relies on at

11 some point for the issue of uniforms, Pjeter Shala puts Mr. Balaj in a

12 brown uniform or a camouflage uniform.

13 Cars. The famous black jeep. Well, that's kind of curious

14 because the individual who brought Sister S to the home came in a white

15 Niva. What other objective factors do you have to rely upon? Well, his

16 height. We don't know what it was. It was never given. It was never

17 asked for. His weight. The colour of his hair. Any facial hair, any

18 scars. Yes, Witness 19 testified to a scar, an old scar, a large scar.

19 Illumination. No electricity in the home.

20 You have no objective information concerning the description, and

21 you have many independent pieces of evidence that give rise to doubt as to

22 whether or not they - and by "they" I mean Witness 4 - was accurate. Now,

23 in that regard -- and I think it's of some importance, the Prosecution's

24 witnesses, the investigators who were involved in trying to make a

25 determination as to who was responsible knew about and failed to follow

1 their own guide-lines. D119 and D120. In any respect, take a look at the

2 photo-board identification procedure report D120. I asked the following

3 questions and noted the responses of the witness. First question: "You

4 stated that you were a witness to certain alleged crimes. You said that

5 you had seen a person who may be responsible. I propose to show you some

6 photographs but before I do tell me: Have you seen that individual again

7 in person or on television in a newspaper or other media? If so, please

8 tell me the circumstances."

9 Mr. Quiroz made it very clear that he was aware that there had --

10 this has occurred. He also made it clear that he didn't follow his own

11 internal rules.

12 The investigator must ascertain whether the witness has seen the

13 suspect in a photograph or on television or on a poster. It may be that

14 the photo-board procedure would then be inappropriate. The team legal

15 advisor should be consulted if an identification as opposed to recognition

16 of a witness has seen the suspect in such circumstances, and they are

17 clearly told what recognition is, which is not what occurred here.

18 Recognition, D119, is when the witness recognises someone from a

19 photograph who is already known to them from some prior contact or

20 circumstances - and I emphasise - unconnected with the alleged crime. For

21 example, a neighbour from before the war. That's not what occurred here.

22 They did not follow their own rules. You have no safe information upon

23 which to feel confident at all that the individual who was involved in

24 these series of incidents was Idriz Balaj.

25 We know that people used Ramush's name at least on one occasion

1 with this family. That was a lie.

2 There are other things about what occurred, and I don't wish to

3 fault Witness 4 at all, but the Prosecution suggested that things are

4 absolutely true which may, in fact, not be true at all, such as whether or

5 not the person known as Toger threatened his mother or whether or not it

6 was, in fact, somebody else, somebody who identified specifically by name

7 a former villager who he knew. But now going back for a moment because if

8 you take a look at the testimony, the testimony is that they received

9 information from Sister S that she was in Irzniq. At what period of time?

10 Before April 22nd. Why is that important? Because April 22nd we know

11 objectively is the day that the Serbs left Irzniq.

12 Now, there's no dispute about the following fact, when the Black

13 Eagles were formed, regardless of whether or not you take the date of

14 April 14th which I think is absolutely unproved by the evidence, and I

15 believe a review of the evidence will prove it -- will show you that, but

16 if you take the date of April 14th, and for the moment let's accept that

17 as the proper date, this is what occurred. On April 14th in Irzniq, 500

18 people got together. A clarion call was made for this group to come

19 together. 120 were picked, and the police had not yet left Irzniq. They

20 were still there. That did not happen. There is -- that is absolutely

21 inconceivable. So whoever took Sister S was not a Black Eagle. Whoever

22 was involved with that was not part of Idriz Balaj's group because the

23 group had not yet existed, it had not been formed. That's objective

24 evidence that you have, Your Honours.

25 There is not overwhelming evidence of Idriz Balaj's

1 identification.

2 Another point which is made by the Prosecution is the issue of

3 training and the training-ground. Now, there is evidence - and I could

4 point out for the Court if we could pull up, it's P1217 - this is the

5 photograph that Ylber Haskaj circled when discussing the issue of the

6 training. And you will notice that he said that the area which is circled

7 with a YH is the area where they trained at Gllogjan, and it has been

8 suggested by the Prosecution that the training area was adjacent to the

9 Ekonomija farm, and that is the language they use, adjacent to the

10 Ekonomija farm. You will note on this photograph there is an arrow with a

11 YH which the witness identified in his testimony in which he indicated

12 that was the direction of the Ekonomija farm. That he does not ever

13 remember training there, that he had no reason to train there, that he

14 wasn't there, that he trained where he made the circle. And you can find

15 that testimony at page 10323.

16 The parsing of evidence, for example - and I specifically deal now

17 with Ylber Haskaj - is -- should be of some moment to this Chamber's

18 consideration. The Prosecution has said that Ylber Haskaj's assertion

19 that the Black Eagles were formed on May 14th should be rejected. When

20 Ylber Haskaj sat in that witness chair and his 92 ter statement was

21 submitted and he testified about it and they had the opportunity to

22 challenge that assertion, they did nothing. Now that he has left the

23 room, and he is the only person who testified with regard to the formation

24 of the Black Eagles in terms of being a Black Eagle and he joined the day

25 that they were formed and he was proud of his membership, why that was not

1 done, why the questions were not asked leaves a fair amount of question

2 with regard to the Prosecution attempting to give to this Chamber all of

3 the facts.

4 I move quickly to Sanije Balaj. In order to believe that

5 Idriz Balaj was involved, you have to believe the following. You have to

6 believe that Avni Krasniqi is telling you the truth. He is the only

7 person who puts Mr. Balaj there. It has been established he's a fugitive

8 from justice from a conviction. He denied his previous convictions for

9 robbery. He was arrested by the Office of the Prosecutor and forced to

10 testify here. He received benefits from them, including their not

11 informing the cooperating state of Switzerland that a person they knew was

12 wanted was in their custody and they let him go in exchange for his

13 testimony. In order to believe his testimony with regard to Idriz Balaj,

14 you have to believe that he has no motivation to spin the tail spun. You

15 must discount the testimony of Shaban Balaj, who told you they were

16 thieves, liars, a force unto their own, a self-styled army, whose aim was

17 to slander and rob people. You have to discount the assertions made by

18 the Prosecution themselves that Avni was known for stopping civilians and

19 taking cars. You have to discount the reality of the time-frame in which

20 this incident was to have occurred. It's been pegged at the 12th. Maybe

21 it was the 11th, perhaps not, three days later is what Mr. Avni Krasniqi

22 says. If it was two days later, then all you have to do is take a look at

23 D69, because that is the date the Serbs were invading Irzniq.

24 If I suggest to you it is preposterous that the commander of the

25 Black Eagles the day after, if you were to believe the dates, the day

1 after toodled up to Baran, grabbed the body, and drove it back to an area

2 and dumped it.

3 You also have to believe what Avni Krasniqi said with regard to

4 Sanije Balaj, that she wanted to stop and talk in the woods. You have to

5 disbelieve his brother Mete, who told Shaban, I cannot swear for my

6 brother because he is stained. You have to disbelieve Shaban, who said

7 the debt has not been paid and the criminal has come out in the open. But

8 earlier or later it will be paid, if not by brothers by someone else.

9 You have to believe Avni Krasniqi that he is not in blood with the

10 family, in direction contradiction to what you were told here. And you

11 have to disbelieve a plausible alternative and, we submit, provable theory

12 that Avni Krasniqi was involved in a robbery, that he buried Sanije Balaj

13 in the mountains, that he got caught because there were kids who saw what

14 happened, and that he, with others, and certainly not with Mr. Balaj,

15 moved the body.

16 You also have to believe something else, which is you have to

17 believe that with regard to how the body was taken when it was removed,

18 because do recall that he said the body was wrapped up in a blanket, he

19 couldn't remember the colour, but it was wrapped up in a blanket, that

20 then somebody, and that somebody would, if you believe him and you have to

21 believe him in order to believe that Idriz Balaj was involved in this at

22 all, unwrapped the body and put it in the two bags, because that was the

23 state in which the body was found.

24 In order to adopt the theory suggested by the Prosecution that the

25 fact that she was killed because she was a collaborator, you have to

1 discount the testimony of Cufe Krasniqi who said that he reviewed what was

2 going on and made a determination that she was not. You have to ask

3 yourself the serious question or the Prosecution has to answer the

4 question what happened to the money which everybody knows was there. And

5 finally, and most importantly: What happened to the notebook? Because

6 the notebook is the telling evidence that she was a collaborator. The

7 notebook is the piece of evidence that we would be given by any

8 responsible person to deal with the issue that they suggest, that there's

9 information in that book upon which they could rely, upon which they could

10 make a determination of what happened and what information she had given

11 or what contact she had; but the book went missing.

12 There were statements made by Mr. Re yesterday that after

13 Avni Krasniqi left Mr. Balaj, the car was driven to the canal area, but

14 that's not what he testified to. You may recall he said he was dropped

15 off in Bishtrica and he was asked the following question this is at 10748,

16 this is of course -- you have to believe at this point that Toger was

17 involved, Idriz Balaj, Toger, was involved in this whole body movement.

18 "Which road did Toger take when he dropped you off in Bishtrica?

19 "Well, there's a crossroad there where we were dropped off and

20 there's a way to go to Baran and another road going to our house; however,

21 I don't really know whether they got the direction to Gllogjan or to

22 Baran, I don't really know that."

23 Now, that's certainly a good example of the Office of the

24 Prosecutor, Mr. Re, massaging the evidence, but it also -- it also points

25 out that, once again, if you look at all of the evidence that was

1 presented and you look at it carefully, it doesn't add up. An evidence in

2 a criminal case just because it's presented doesn't necessarily prove

3 anything. It's got to be reasonable. There's got to be some logic behind

4 what the theory is, and it doesn't exist here. And there is once again a

5 logical reason why Avni Krasniqi is lying: Because if he admits to it,

6 he's going to get killed.

7 That's a pretty compelling motive, and it's real and you heard it

8 here. You heard it from not only Shaban Balaj, but you also heard it from

9 Avni Krasniqi. He said, I'm not in blood. I'm not in the open. I've

10 done nothing wrong. Can you think of a more compelling reason to

11 fabricate, to mislead? And who is -- and you heard from Rrustem Tetaj,

12 who is Idriz Balaj? He's -- he's a stranger in the community. He's

13 somebody who came in to -- he's somebody who came in to help fight. The

14 easiest man to tag. He's not part of that particular community. And why

15 not at this point dump on him? Everyone else has.

16 Finally I wish to discuss Witness 61 and Witness 1 --

17 JUDGE ORIE: Mr. Guy-Smith, I'm looking at the clock. I asked

18 before whether you would spread evenly the time available. We had a late

19 start, so therefore if we would not have had a late start then in two or

20 three minutes from now you would be at half time. That means you would

21 then have had a little bit over one hour and Mr. Harvey needs over one

22 hour as well. So therefore, since we had a late start I suggest that

23 we'll continue if that is agreeable with interpreters and transcribers

24 until ten minutes past 7.00, which would also mean that in order to give

25 you equal time that you would have another seven minutes from now.

1 Please proceed.

2 [Defence counsel confer]

3 MR. GUY-SMITH: Thank you, Richard.

4 I start off with the simplest of all propositions here.

5 Witness 61 did not identify Idriz Balaj as Toger or the man who raped her.

6 Period. Done. Finished. Then it goes a bit further, of course. He does

7 not fit the description of the man who raped her, and this is the second

8 time and only the second time that we have some objective evidence with

9 regard to the physical characteristics of that individual. She testified

10 that he was a short, small man, just a bit taller than her, not a big man.

11 And as the Chamber may well recall, because I was asking at that time

12 apparently way too many questions about what she saw, how she saw, when

13 she saw, there's no doubt that she had an opportunity to see that person.

14 The objective evidence in this case has established she is 1.5 metres

15 tall, translated into American that's 5 feet, 2 inches. Idriz Balaj is

16 1.78 metres tall. That is a substantial difference I suggest. That is

17 not a short, small man, just a bit taller than her, not a big man. But it

18 goes further. She told us that when she saw him on television it

19 wasn't -- that didn't look like the man who raped her, but her family told

20 her, her family told her that the man on television who was, in fact,

21 Idriz Balaj, who is also known as Toger, That's Toger, that's the man who

22 raped you. But there's no independent objective evidence of it.

23 I won't dwell on the evidence that came from Witness 1. We have

24 briefed that and I believe the Chamber understands our position, not

25 having had the opportunity to cross-examine any of the information, there

1 is -- makes it in and of itself open to question because it has not been

2 confronted. But above and beyond that, even if you take, once again, a

3 look at what objectively you have, Witness 1 -- and the document has been

4 put in the Prosecution's brief, not signed, not circled, there's no --

5 there's no information whatsoever by looking at that particular document

6 that as Mr. Versonnen said, the person he pointed to was that person.

7 It's uncorroborated and you cannot rely under the teachings of Galic, you

8 cannot rely on Versonnen's testimony to corroborate it; that's

9 inappropriate.

10 Above and beyond or independent of what is said with regard to the

11 fact that any personal involvement or the failure of proof of the personal

12 involvement of Idriz Balaj in this specific count, there is no evidence at

13 all that has been established that the rape was carried out for the

14 purpose of punishing or preventing suspected collaboration.

15 I have more things to say, but recognising the time and respecting

16 my colleague and the Chamber, I close with this. The Prosecution has

17 failed to prove that Idriz Balaj personally committed the crimes charged

18 against him and has utterly failed to prove that he planned, instigated,

19 ordered, committed, or otherwise aided and abetted in the planning,

20 preparation, or execution of the crimes as alleged in the JCE, or joint

21 criminal enterprise. We trust that after a careful and searing

22 examination of the evidence, and I mean that most sincerely, a methodical,

23 logical, scientific analysis of the evidence presented to you, that you

24 will find Mr. Balaj not guilty of the counts that he has been charged

25 with.

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

2 We will now have a break, and after the break, Mr. Harvey, it's up

3 to you to make your closing argument, but before doing so, Mr. Emmerson,

4 let me just ask you one tiny little question. It doesn't need any further

5 comment if I'm right. If, however, there's any confusion I'd like to

6 know. You referred to -- I'm talking about page 35, line 19, about the

7 21st of August meeting in Prapaqan about the fat fish, where from what I

8 remember from the testimony of Witness 17 and put both in questions put by

9 you and Mr. Kearney, reference was made to the 20th of August. I don't

10 know whether it's a mistake.

11 MR. EMMERSON: I think Your Honour is almost certainly right and

12 it was a slip of the tongue. I'll check my references and if I'm wrong,

13 I'll come back to you. It's certainly the same meeting that I was

14 referring to.

15 JUDGE ORIE: If you're wrong, we leave it as it is; if there's

16 reason for confusion, I'd like to know.

17 We'll have a break until 6.00.

18 --- Recess taken at 5.41 p.m.

19 --- On resuming at 6.02 p.m.

20 JUDGE ORIE: Mr. Harvey, are you ready to present your closing

21 arguments?

22 MR. HARVEY: More than ready, Your Honour.

23 JUDGE ORIE: Please proceed.

24 MR. HARVEY: Your Honours, our closing argument, like Caesar's

25 goal is divided into three parts. The first, the Prosecution's claim that

1 Lahi Brahimaj was the commander of Jabllanice; the second, that he was a

2 party to a JCE; and then finally we will deal with what conclusions we say

3 can safely be drawn about Lahi Brahimaj and his role in the Dukagjin Zone

4 at the material time.

5 I will start, if I may, with a matter of law. The surprising and,

6 we say, fatal failure by the Prosecution to move to amend the indictment

7 on the many opportunities they have had to do so. Your Honours will

8 recall the disparity between paragraphs 32(B) and 43 in the indictment.

9 32(B) alleges that Mr. Brahimaj ran a KLA detention facility at Jabllanice

10 from "at least April until on or about the 5th of July, 1998."

11 Paragraph 43 alleges that he ran a detention -- excuse me, that a

12 makeshift detention facility was established in mid-May 1998 and that it

13 was contained in a four-room house next to the family compound of

14 Lahi Brahimaj which contained the KLA's Jabllanice headquarters. Of

15 course the evidence was that the four-roomed house was, in fact, five or

16 six minutes walk from the Brahimaj compound, but no matter about that at

17 this stage.

18 In the Prosecution's pre-trial brief, paragraph 32, they alleged

19 that Brahimaj commanded the Jabllanice detention centre throughout the

20 indictment period. They footnoted that, saying: "This allegation that

21 Brahimaj commanded the Jabllanice detention centre throughout the

22 indictment period differs from, and corrects the Prosecution's position

23 with respect to, the allegation contained in paragraph 32 of the

24 indictment ..."

25 We immediately objected in our pre-trial brief filed on the 12th

1 of February, 2007, where we put the Prosecution on notice that we opposed

2 any attempt on the eve of trial to expand radically the case against our

3 client since this would require additional investigation and potentially

4 prejudice his defence. We confidently awaited a motion from the

5 Prosecution to amend the indictment and the Court's ruling on such a

6 motion. No motion came.

7 We say that indictments are to be interpreted strictly. The ICTY

8 Rules provide at Rule 50 the mechanism by which a defectively pleaded

9 indictment can be amended, and indeed this Trial Chamber has set out in

10 its decision of the 5th of September, 2007, the three conditions which

11 govern its discretion to grant leave to amend. I won't go through them

12 all, but the last of them requires that: "The proposed amendment should

13 not result in unfair prejudice to the accused when viewed in the light of

14 the circumstances of the case as a whole."

15 Now, this case we are on the fourth amended indictment. The first

16 time the indictment was amended was less than three weeks before the

17 Prosecution filed its initial pre-trial brief, just a few days before they

18 sought to correct with a footnote that indictment. Twice during this

19 trial they have sought and been granted leave to amend; however, they have

20 failed to seek leave to amend their case in relation to what we say is a

21 crucial aspect of their case against Mr. Brahimaj. We submit that this

22 defect cannot be cured by a mere footnote in their pre-trial brief and

23 that they have compounded that error in paragraph [sic] 84 of their

24 closing brief and footnote 695 [sic] thereto.

25 More importantly, perhaps, the Prosecution has failed to provide

1 any material to support their proposition that Lahi Brahimaj was in charge

2 of the supposed detention facility in Jabllanice "throughout the

3 indictment period," as they claim. Like much of their final trial brief,

4 this claim is unsupported by evidence and is sustained merely by constant

5 repetition, as if that were sufficient to make it so. This is not a minor

6 point. Lahi Brahimaj has made important decisions in running his defence,

7 not the least of which was to rely on his right not to give evidence or to

8 call any witnesses on his behalf. He has made those decisions based on

9 the indictment before the Court and on the evidence called by the

10 Prosecution.

11 To permit --

12 JUDGE ORIE: Mr. Harvey --

13 MR. HARVEY: Yes, Your Honour.

14 JUDGE ORIE: -- just to interrupt you. When you referred to

15 paragraph 84, may I take it that you referred to page 84, and when you

16 referred to footnote 695, may I take it that it could have been 697? Is

17 that -- I put it now not to interrupt you, but otherwise if it's not on

18 the record close to where it was said then people will miss it if later

19 reading.

20 MR. HARVEY: Thank you, Your Honour, for that correction and

21 clarification. You caught me twice on the hop, one in that I was

22 listening to the French to make sure that I wasn't getting ahead of

23 myself, so I didn't hear you quite clearly; but as it finally came

24 through, yes, you are, not for the first time, right.

25 JUDGE ORIE: Yes. 84.

1 Please proceed.

2 MR. HARVEY: As I was saying, Lahi Brahimaj has made these

3 important decisions based on the indictment before the Trial Chamber and

4 on the evidence called by the Prosecutor. To allow the Prosecution to

5 re-interpret the indictment at this stage would result in extreme

6 prejudice to Mr. Brahimaj.

7 From a factual standpoint, no evidence has been presented to the

8 Trial Chamber to suggest that anyone was detained in Jabllanice before the

9 middle of June 1998. Again, from a factual standpoint no evidence has

10 been presented concerning anything that happened in Jabllanice after July

11 of 1998, with the exception of the Serb forces' attacks on the village on

12 the 2nd and 3rd of August, 1998, that attack in which Lahi and

13 Nazmi Brahimaj's mother and grandmother were foully and brutally murdered,

14 and there is also of course evidence of the next attack at the beginning

15 of September 1998.

16 So we say as a matter of law, the Prosecution is limited to its

17 case that Lahi Brahimaj was the alleged commander of Jabllanice beginning

18 in May, mid-May, and ending in the first week of July 1998. Thereafter,

19 we acknowledge the indictment alleges at paragraph 32(c) a charge that he

20 condoned or encouraged criminal conduct by others at the alleged

21 Jabllanice detention site, said conduct alleged to continue up until at

22 least mid-September. While this is not supported by any facts, as a

23 matter of law we accept that we are on notice of this allegation. That

24 being an allegation that Lahi Brahimaj was not a commander but that he

25 condoned mistreatment by others.

1 We ask you to bear these legal issues in mind as we turn to the

2 second aspect of his alleged position as commander, that's the facts, such

3 as you may be able to rely upon them.

4 In approaching the facts we would ask you to apply what I call the

5 eyebrow test. Certain aspects of the Prosecution's closing argument were

6 surprising, to say the least. One such was the claim that this case is a

7 case of similarities. Do I hear the soft footfall of the approach of a

8 false syllogism. Did you feel a twitch of your eyebrows at that

9 suggestion?

10 When the Prosecution spent seven pages of its closing argument

11 yesterday dealing with their case against Lahi Brahimaj and their claim

12 that he was the commander of Jabllanice, they devoted approximately

13 one-tenth of their whole case to that claim and what they did was simply

14 to read verbatim for six of those seven pages out of the 16 paragraphs of

15 their closing briefs.

16 They made no attempt to explain or expand upon those 16

17 paragraphs; they merely repeated to you what you have already read with

18 care and your customary attention. I know from experience that you have

19 read our closing briefs, and I will not be wasting your time by repeating

20 what you already know our case to be.

21 What are the proven facts Lahi Brahimaj and Jabllanice? Beyond

22 the Serb forces rumour-mill, there is a disturbing lack of credible and

23 reliable evidence about where Lahi Brahimaj was and what he was doing

24 throughout the indictment period. You will have noted that the

25 Prosecution appears to be downplaying its emphasis on Witness 3, and

1 indeed as they were presenting their PowerPoint diagrams yesterday you may

2 have noticed that they flashed a card reading: "Second abduction of

3 Witness 3" but suddenly, and you may think wisely, they moved on without

4 referring to it. We submit that this is because Witness 3 is an

5 unreliable witness at best, we've dealt with this at paragraph 183 of our

6 closing brief. He had the motive to seek the benefit of resettlement with

7 his family, he had no fear of Lahi Brahimaj, but in his account that

8 covered a span of a couple of months his testimony was replete with such

9 fantastic-sounding tales of derring-do, that we wondered at times whether

10 we weren't listening to Baron Munchausen recounting the Tales of his

11 Marvelous Travels.

12 With Witness 6 we have dealt with at length with his unreliability

13 in our closing brief at paragraphs 86 to 122. And I'm only going to

14 elaborate on certain important indications about this untruthful, evasive,

15 and wholly unreliable witness.

16 The eyebrow raisers begin with his claim that a police officer

17 told him on the 30th of July, over a month before the Serb authorities

18 claimed to have discovered remains at Lake Radoniq, and parenthetically we

19 take on board everything that Mr. Emmerson said about the fabrications

20 that occurred at that stage, but he claimed that on the 30th of July he

21 was told that Nenad Remistar's body was not dumped in the lake as many

22 others, but may be buried in the mountains, that's transcript 5312. We

23 say this gives strong support to our contention that he is deliberately

24 lying and embellishing his story out of his own hatred for the Brahimajs.

25 His answers about his relationships to the head of the RDB in

1 Gjakove were, to say the least, far from frank and satisfactory. The idea

2 that he would have had a chance meeting in the coffee shop of the

3 Hotel Pashtrik during the very time the Serbian forces were planning to

4 launch a massive attack against Jabllanice and that Sreten Camovic would

5 simply ask him, Well, how were things in Jabllanice, that idea does not

6 survive the eyebrow test or any other. We have to ask: Can we dismiss

7 from our minds and, with respect, can you dismiss from yours the strong

8 suspicion that this man's testimony has already been bought and paid for

9 by his masters in Jagodina that he goes at such lengths to visit and that

10 he is and perhaps was at all times an agent of the Serbian forces himself?

11 How else to explain his claim that even after he says he was free to leave

12 Jabllanice he decided not to go, but instead to stick around and find out

13 what he could about people? Why?

14 He had clearly as he came into this courtroom a motive of revenge.

15 He had been humiliated by being accused of the crime of collaboration and

16 of having carried an unauthorised pistol, both pistol and his suspiciously

17 expensive car were confiscated at Jabllanice. He had a motive of revenge

18 and he articulated it in the most clear fashion when he said that, I told

19 Nazmi Brahimaj: There will be bloodshed because of this car. This is not

20 the statement of a frightened man. We say this was a declaration of

21 blood-feud against the Brahimaj family. They must be made to pay for

22 taking his car, and he came to this court to make them pay. His obsession

23 on this point was emphasised by his asking you, the Trial Chamber, at the

24 conclusion of his testimony, Would you please give him compensation or

25 tell him how he could get compensation for his car. Is this a witness on

1 whom you can really rely beyond a reasonable doubt? We say no and we say

2 there is a need with a witness of this kind to look for corroboration;

3 there is none, we say.

4 We have to ask. Even in relation to his claims of his serious

5 injuries, was he beaten at all by anyone? If he was, it surely cannot

6 have been of the frequency or severity which he claimed because the

7 injuries would have been devastating. Can we believe that Lahi Brahimaj

8 encouraged or condoned any such ill-treatment. Did he really sustain any

9 fracture at all, as he claimed? If he did, it's most surprising perhaps

10 that the OTP's investigators never looked for the X-ray that he was

11 supposed to have taken home with him which now mysteriously it cannot be

12 found. We asked on the 12th of November for that X-ray to be sought and

13 produced; we're still waiting.

14 As between Witness 3 and Witness 6, there are several

15 irreconcilable conflicts of which again we will highlight one or two.

16 Witness 3 claims that he was in the barracks for three days and two

17 nights; Witness 6 says Witness 3 was there for a matter of hours.

18 Witness 6 says there was only one person there from Grabanice who on the

19 evidence before us must presumably have been Witness 3, but Witness 6 says

20 this man was not beaten or even touched. Why? Because his wife came from

21 Jabllanice. Witness 6 says that Nazmi and Hamz beat Pal Krasniqi.

22 Witness 3 says, no, it was Naser, otherwise known as Rusi. Witness 6 says

23 two people sought to escape from the alleged detention centre; Witness 3

24 says, no, there was only one who tried to escape and that was

25 Skender Kuci.

1 The evidence about what was happening in Jabllanice is tenuous and

2 far from satisfactory, but the evidence of Lahi Brahimaj being the

3 commander there simply does not exist we say. Probably the strongest

4 element that the Prosecution has to introduce in that regard comes from

5 Jakup Krasniqi who -- and I just refer Your Honours to page 5010 of the

6 transcript, was asked at some length about this and what he said

7 ultimately was: "He was the person that I knew," within the Dukagjin Zone

8 and the "person I communicated with. I think he was responsible for the

9 area at that time."

10 What does this mean? Is this evidence that Lahi Brahimaj was in

11 fact an officer commanding soldiers in the Dukagjini Zone or even in

12 Jabllanice itself? We say the realistic and common-sense view must be

13 that as Jakup Krasniqi said, the two of them, he and Lahi, were working

14 together at that time in the Berisha mountains. Krasniqi knew that Lahi

15 was from that area, and if he needed to know anything about the terrain or

16 the people in the area, of course he's going to talk to the man who is

17 working right next to him.

18 In June there is no evidence that Jakup Krasniqi had any contact

19 inside Dukagjin. The only person he had available was the man he said was

20 frequently there with him in the Berisha mountains, Lahi Brahimaj. He

21 also said that he himself visited the barracks in Jabllanice, but he saw

22 no evidence that there was any kind of prison there.

23 There are two exhibits which shed some light on the extent to

24 which we can be confident that Lahi Brahimaj was not exercising command

25 responsibility in the region, but that he had other far different

1 responsibilities. At the beginning of June, the 8th of June, and I don't

2 ask for it to be called up, I simply refer to Exhibit P126 and to page 7

3 of the English translation of that, where reference is made to Dushkaja

4 being under pressure, Dushkaja being the region in which Jabllanice finds

5 itself. A new front and a need for officers/commanders and flour. A need

6 for officers or commanders. Not a suggestion that Lahi Brahimaj has got

7 it all under his control. Don't worry, that's Lahi's area.

8 Exhibit P206 takes us to the 15th of July and a complaint made by

9 Lahi Brahimaj about being treated very roughly by guards in Gllogjan,

10 ironically on a street called Jabllanice Street, while he was accompanying

11 a group that had come from Albania and were on their way to Dashinoc. If

12 he was so well-known, if he was a commander, would any soldier have

13 treated him in this fashion? And would he have had to raise it repeatedly

14 as that exhibit indicates that he did and even to have to reduce it to

15 writing?

16 To the extent that the Prosecution case relies on rumours and

17 hearsay, then let them also explain why Witness 38 reported that she heard

18 that the commander of Jabllanice had a long white beard.

19 I come to the second main aspect of our submissions, and that is

20 concerns the alleged JCE. And in doing so, I know it has not escaped your

21 attention that the goal-posts have shifted. They have shifted from an

22 allegation that the purpose of the JCE was to secure control of the zone

23 to an allegation that its purpose was the ethnic cleansing of Serbs within

24 that zone, for which there is no reliable, credible evidence, no evidence

25 of that going on in Jabllanice. Certainly it was the goal of those in

1 Jabllanice, of those in the KLA, of all of those struggling for the

2 independence of Kosovo to ensure control of the zone, but not by

3 despicable means.

4 Just as Mr. Emmerson has indicated the reasons why there was no

5 reason for Mr. Haradinaj to be -- to know or to suspect anything being

6 amiss in Jabllanice, because he was not there except on very rare

7 occasions, there is no proof that Lahi Brahimaj was there except on very

8 rare occasions, specifically two occasions about which you have heard, one

9 towards the end of May when Fadil Fazliu puts him there, that's not

10 challenged, and one for about three days before the 19th of July. Why do

11 I say that? Because Bislim Zyrapi travelled from the Berisha Mountains in

12 company with Lahi Brahimaj, who of course was working in the General Staff

13 headquarters with him. They travelled in the middle of July to Jabllanice

14 first, they had a meeting there, following which Mr. Zyrapi went to visit

15 Gllogjan and a number of other locations. The testimony suggests that he

16 was gone for about two, perhaps three days, and then urgently was recalled

17 to Jabllanice where Lahi Brahimaj was waiting for him with orders to take

18 him to Rahovec where a Serb attack was underway. So we have Lahi in

19 Jabllanice for two to three days ending on the 19th of July. Again, the

20 fact that his job was to take Bislim Zyrapi to Rahovec indicates further

21 that his duties were those of a staff officer on the General Staff rather

22 than a command officer at Jabllanice, because if there's a Serb attack

23 going on the commander of Jabllanice would need to stay in Jabllanice.

24 Apart from this there is no proof that rises to the level of

25 beyond a reasonable doubt that Lahi Brahimaj was in Jabllanice at the time

1 when Skender Kuci is alleged to have been brought there. The

2 Trial Chamber does not have a precise date for the alleged abduction of

3 Skender Kuci. It is not clear of course whether Mr. Kuci was abducted by

4 Serbs initially and possibly mistreated by them prior to going to

5 Jabllanice. Assuming that Witness 6 is at least partially reliable and

6 truthful about this, it is still impossible to put a date on the arrival

7 of the man from Zahaq who he described coming to Jabllanice in the boot of

8 a car. He puts it as a week or two before he was released. Does this

9 constitute proof beyond a reasonable doubt that Lahi Brahimaj must have

10 been there at that time? Certainly not.

11 Similarly in relation to Pal Krasniqi, we lack proof beyond a

12 reasonable doubt that Lahi Brahimaj was there at the time when he was

13 allegedly detained. The evidence there is that according to Ded Krasniqi,

14 Mahir Demaj and Pal Krasniqi left their home on about the 10th of July,

15 they were beaten up by Serbs that night, and could not have arrived in

16 Jabllanice earlier than the 11th. We don't know whether it may have been

17 later. We do know according to Mahir Demaj's 92 bis statement that they

18 were taken to an improvised hospital in Jabllanice to recover from their

19 beatings at the hands of the Serb police. Again Mahir Demaj indicates

20 they were given uniforms five days after their arrival. So we don't have

21 a precise date for the time when allegedly there was suspicion that

22 Pal Krasniqi might be an informant or a collaborator. And parenthetically

23 I should also add that the claim that Pal Krasniqi was shot at the canal

24 wall is again supposition. It cannot be proved beyond a reasonable doubt.

25 It is known forensically that he had been shot and killed sometime prior

1 to that and his body brought there at a later stage. It is impossible to

2 rule out the strong likelihood that this man who was still walking around,

3 recovering from his injuries according to Witness 6, if he is to be

4 believed, as of the 25th of July it is impossible to rule out the strong

5 possibility that he was still in Jabllanice when the Serbs attacked on the

6 2nd and 3rd of August. It is impossible to rule out the doubt as to the

7 cause of his death being Serbs attacking, taking him prisoner, or killing

8 him on the spot and then disposing of him at their pleasure.

9 In relation to the office, so-called, that was supposed to be

10 Lahi Brahimaj's room in the barracks at Jabllanice, again the Prosecution

11 claim that he was still responsible for Jabllanice because he maintained

12 an office there. This is -- really does not pass the laugh test let alone

13 the eyebrow test. Pjeter Shala said that soldiers slept in a kind of

14 office, a so-called office, because it only had a desk inside, nothing

15 else, and his description is at pages 9951 to 9953 of the transcript. In

16 the entire claim that Lahi Brahimaj was in command of Jabllanice rests on

17 what we say is an ahistorical or anti-historical approach by the

18 Prosecution.

19 What they have done is to take a few snatches of Serb intelligence

20 information, collate it together during 1995 to 1997, to that mixture they

21 have added bits and pieces from all over the place and at all kinds of

22 different epochs or periods during 1997 to 1998, irrespective of whether

23 they fall before, during, or after the indictment period. They have

24 thrown this into a stew, they have turned up the heat, and they have

25 stirred it around.

1 This is not a basis on which this Tribunal can rely for

2 determining what Lahi Brahimaj's role was. The Prosecution goes further.

3 They say this is a case of similarities, rather than one in which each and

4 every one of their contentions must be tested by the required standard of

5 proof before it can be considered in relation to their other claims. The

6 step-by-step approach advocated by Mr. Emmerson is, we say, the only

7 proper approach, and I'm sure it is the one that Your Honours are going to

8 take.

9 The claim that Lahi Brahimaj was in control at Jabllanice at any

10 time, let alone throughout the indictment period, appears to be based

11 primarily on the claim that he had an office or a room in the makeshift

12 barracks. It is a pathetic allegation.

13 There are many accounts given by many witnesses, and as

14 Mr. Guy-Smith has, we believe, very rightly pointed out, many of these

15 witnesses have given their statements years, many years, after the events

16 to which they relate. This is not a case in which an examining magistrate

17 has carefully taken sworn statements, and a number of the original

18 statements you have watched fall apart before your eyes as witnesses have

19 come into this room and have failed to come up to the proof contained in

20 those statements, particularly when it's come to issues of identification

21 and important detail. And there is one particular witness statement which

22 has been admitted, not tested by cross-examination for obvious reasons,

23 and that's P1248, the 92 quater statement of the father of Witness 6. We

24 say that statement is not capable of providing corroboration of any kind

25 for Witness 6's claims against Lahi Brahimaj, not least because the maker

1 of that statement -- excuse me, let me rephrase that. Not least because

2 Witness 6 was present in the room at the time that that statement was

3 being taken and in a strong position to influence its contents.

4 In our brief at paragraph 173, I just draw attention to this, we

5 have referred to the strong doubts that must exist about Pjeter Shala's

6 claim that the military police were formed as early as March of 1998.

7 That cannot be the case if, as he claims, Hashim Thaqi was involved in

8 recommending him to become a member of the military police.

9 I apologise, I said that this was referred to in our brief at

10 paragraph 173; I'm referring of course to the Prosecution's brief at

11 paragraph 173, which make this, in our view, totally erroneous claim.

12 We also draw the attention of the Trial Chamber to paragraph 617

13 of the Prosecution brief relating to Pal Krasniqi's remains and the

14 conclusions that can really safely be drawn from that finding. And we

15 note the use of the word "probably" by the Prosecution which is a clear

16 red light to any finder of fact that this is not something that can

17 possibly be relied on for the proposition which they seek to advance

18 there.

19 The cornerstone of our argument, Your Honours, is that we ask you

20 quite simply to take a common-sense approach. What do you think is really

21 the situation that operated in the zone at the time, in Jabllanice at the

22 time, given the conditions that the KLA in its nascent stage was seeking

23 to operate under, constantly harassed, constantly attacked, constantly in

24 danger of interception and being killed.

25 At this stage in history we all have some sense of how national

1 liberation movements develop, seeing the struggle, the victorious struggle

2 of the ANC in South Africa. We know that Nelson Mandela started out with

3 a very small group of individuals who went away to get a different kind of

4 training from the lawyers that they had initially thought they were going

5 to remain. They went to get military training. They went back inside the

6 country and they started to stir things up. They started with sabotage

7 attacks, they started with attacks on police installations, and they were

8 very soon caught and sentenced. Others took their place. Gradually they

9 made advances in one area, losing ground again, constantly having to react

10 to the enemy's tactics. Umkhonto we Sizwe was founded in 1960, the armed

11 wing of the ANC. It took them 30 years to approach victory when Mandela

12 was finally released in 1990. It took another four years to take power.

13 The speed with which the KLA grew was quite a bit fast than that, but the

14 chaos which surrounded it and the growing pains that it went through are a

15 matter, just as I suggest, of common sense that we can all recognise.

16 This was not simply a straight-line process, as the Prosecution seem to

17 want you to believe.

18 All we ask you to do is to consider what is the likely situation

19 for Lahi Brahimaj? When people refer to him as having been a commander or

20 the commander in Jabllanice, you look at all of the references to that

21 that are advanced by witnesses such as Zoran Stijovic and they all rely on

22 sources from 1996, 1997, and the very latest is February of 1998. We do

23 not dissent from the suggestion that Lahi Brahimaj was a prominent and the

24 most prominent figure in Jabllanice at that time, but circumstances

25 change. Ramush Haradinaj comes into the country around that time,

1 Nazmi Brahimaj returns to the country around that time, and at that stage

2 the struggle begins to take on a different complexion. Later on other

3 leaders enter the country, and most importantly towards the end of May you

4 have Bislim Zyrapi and Hashim Thaqi arriving, and what is then the most

5 important focus? It is consolidating and forming the General Staff inside

6 the country because once again common sense tells us and witnesses have

7 told us that there was discontent in the movement inside the country about

8 these so-called leaders who were outside, in Albania or elsewhere.

9 Bislim Zyrapi recognised that was why it was important for them to enter

10 the country and to take the struggle to a new level.

11 In taking the struggle to a new level, they need more than

12 anything the assistance of one of the very few General Staff members who

13 had remained in the country, Lahi Brahimaj. They don't need him to be

14 stranded in Jabllanice; they need him to be in the Berisha Mountains with

15 them consolidating the General Staff. And what were his responsibilities?

16 His responsibilities were organizing supply routes, as is hinted at by the

17 complaint we already referred to at P206; and his responsibilities were

18 the finances of the KLA.

19 Now, one thing you do not do if you are running an organization of

20 that nature is have your finance officer charging off all around the place

21 and running a completely separate operation from the General Staff.

22 Common sense tells us again that what Colonel Crosland told this

23 Trial Chamber is absolutely reliable and correct. This whole indictment

24 period constituted a fluid situation, and you would not expect a fledgling

25 national liberation struggle to be operating in a static fashion. Once

1 new commanders have taken over in one area, for instance, Nazmi, as we

2 know, in Jabllanice, there is no need for Lahi to remain there. He has

3 skills and experience that are too important to be wasted anywhere but

4 being in the General Staff.

5 He is not anywhere around the area of Lake Radoniq. He is not in

6 Jabllanice. His job is not to command soldiers in the field, it is not to

7 deal with individuals suspected of collaboration. None of these are his

8 concern. His knowledge of the supply routes from Albania that he's been

9 running for months, if not years, according to those Serb intelligence

10 documents upon which the Prosecution places so much reliance, that

11 knowledge is vital for the General Staff as it moves to consolidate its

12 struggle at a life-or-death moment for the liberation of Kosovo. That is

13 what you would expect and that is what we submit was happening. It is not

14 for us to prove any aspect of that. We have stood on our client's right

15 to put the Prosecution to the strict proof of its case. We put them to

16 that proof and we say they have failed in every respect. We submit that

17 our client should be found gui -- brilliant. No, not coupable. We submit

18 of course that our client should be found not guilty on each and every

19 count that he faces. I thank Your Honours for your attention throughout

20 this trial.

21 JUDGE ORIE: Thank you, Mr. Harvey.

22 We -- it's no use, Mr. Re, to invite you to start to make further

23 submissions, so we'll adjourn for the day. We'll adjourn until tomorrow,

24 the 23rd of January, quarter past 2.00, in this same courtroom, where you

25 then, Mr. Re, will have one hour; and Defence counsel together will have

1 one hour and a half for rebuttal and rejoinder. And then finally if the

2 Chamber has any additional questions there will be time available to put

3 them to counsel.

4 We stand adjourned.

5 --- Whereupon the hearing adjourned at 6.57 p.m.,

6 to be reconvened on Wednesday, the 23rd day of

7 January, 2008, at 2.15 p.m.

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25