Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11194

1 Wednesday, 23 January 2008

2 [Prosecution Rebuttal]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.22 p.m.

6 JUDGE ORIE: Good afternoon to everybody in and around this

7 courtroom.

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

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

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

11 versus Ramush Haradinaj et al.

12 JUDGE ORIE: Thank you, Mr. Registrar.

13 Mr. Emmerson.

14 MR. EMMERSON: Just before Mr. Re begins.


16 MR. EMMERSON: Might I raise the question of the structure of this

17 afternoon's sitting sessions?


19 MR. EMMERSON: Would it be convenient for the Trial Chamber if we

20 aimed to take the first break between the Prosecution and the Defence

21 responses so that the Defence teams could have an opportunity to discuss

22 time allocation amongst themselves?

23 [Trial Chamber confers]

24 JUDGE ORIE: That's agreeable to the Trial Chamber.

25 MR. EMMERSON: Thank you very much.

Page 11195

1 JUDGE ORIE: That means that if the last session would be a long

2 session, it would be a bit the other order, that's one hour, one hour and

3 a half, and perhaps even a longer one. Let's keep whether we can keep

4 them relatively short.

5 MR. EMMERSON: Thank you.

6 JUDGE ORIE: That's one.

7 Before I give an opportunity to you, Mr. Re, to present further

8 argument in rebuttal for which we have reserved one hour, there's one

9 matter I would like to raise with all parties, and that is that neither in

10 the final brief of the Prosecutor nor in any of the final briefs of the

11 Defence any attention has been paid to mitigating or aggravating

12 circumstances. Now, I fully understand that a Defence which pleads that

13 the Chamber should acquit the accused would not spend much attention on

14 certain mitigating circumstances, which are -- especially if they are

15 crime-related. But of course at the same time in the case law of this

16 Tribunal mitigating circumstances have been accepted which are totally

17 unrelated to the crimes charged, such as, for example, good behaviour in

18 the United Nations Detention Unit. I'm not encouraging you to say that

19 all the accused did behave while in the United Nations Detention Unit

20 because if you see what the weight of this mitigating circumstance is,

21 then one could wonder whether it was ever accepted as such. But of course

22 it's part of the case law of this Tribunal, and I -- I just noticed that

23 there's nothing for the Chamber at this moment to rely upon if

24 considering, which we have to do -- in considering the mitigating or

25 aggravating circumstances. This is just -- yes, personal circumstances,

Page 11196

1 of course, may also play a role in this respect. For example, family

2 composition of most of the accused is even unknown to the Chamber. I'm

3 not urging you to do it, but I just put this on the record.

4 Mr. Re, the same is true, you have of course paid some attention

5 to sentencing but have not in the final brief. I think it was

6 approximately four paragraphs at the end, but no specific reference to any

7 aggravating or mitigating circumstances.

8 MR. RE: No. Our submission is simply it's a joint criminal

9 enterprise. We've set out the role played by each in our brief, and we

10 say that's the appropriate sentence based upon sentencing practices of the

11 Tribunal in their role. I don't propose to --

12 JUDGE ORIE: I'm not criticising you, but of course it's clear

13 that if one of the parties would invoke the existence of mitigating or

14 aggravating circumstances, the Chamber would of course deal with that

15 explicitly in the judgement, and otherwise of course the Chamber will,

16 perhaps, have to consider it anyhow proprio motu. But none of the parties

17 has brought to the attention of this Chamber the existence of any

18 mitigating or aggravating circumstances, and even personal circumstances

19 are not specifically dealt with.

20 Having -- yes, Mr. Guy-Smith.

21 MR. GUY-SMITH: Because of the procedural status of which we're

22 in, I offer this as a suggestion. I don't know whether or not the Chamber

23 is amenable to this. I know it did occur in the earlier days, which is,

24 that after a judgement, if need be, we could file at that time briefs with

25 regard to that issue.

Page 11197

1 JUDGE ORIE: Of course the Rules -- the early set of rules that

2 applied in this Tribunal still had a two-stage --

3 MR. GUY-SMITH: That's correct, Your Honour.

4 JUDGE ORIE: -- proceedings. That is, first a decision on guilt

5 and then hearings in between and then finally a sentencing decision. That

6 system has been abandoned, and therefore it's one decision. So therefore

7 to say if we could first deliver the judgement in the judgement you find

8 the sentence; that's the new system. So therefore -- of course, if there

9 is a conviction of course --

10 MR. GUY-SMITH: Right.

11 JUDGE ORIE: If there's no conviction, there's no sentence either.

12 But that's -- at this moment that's the system. So the Chamber just -- we

13 have still a couple of hours to go. Even if it would be very briefly --

14 if the parties want to do so, this is the last opportunity to do it.

15 MR. GUY-SMITH: Very well.


17 Then, Mr. Re, the Chamber granted one hour for the Prosecution,

18 and please proceed.

19 MR. RE: There are a number of things I'll respond to from the

20 submissions made by counsel for the accused over the last two days.

21 [Prosecution counsel confer]

22 MR. RE: The first thing I'm going to say is that contrary to

23 Mr. Emmerson's somewhat surprising submission yesterday of there being no

24 direct evidence against the accused, the Prosecution did, in fact, lead

25 strong direct evidence against Haradinaj in Count 3 and 4 regarding the

Page 11198

1 Stojanovics; Balaj, in relation to Witness 4, the rape in Count 36, and

2 Sanije Balaj in Counts 21, 22; and in relation to Lahi Brahimaj strong

3 evidence was led in relation to Witnesses 3, 6, and his involvement with

4 Pal Krasniqi.

5 Now, the case against Haradinaj is circumstantial but it's strong.

6 And in oral submissions, as in his final brief filed, Mr. Emmerson urges

7 you to examine -- excuse me.

8 [Prosecution counsel confer]

9 MR. RE: -- albeit carefully, and of course as you should each

10 piece of evidence. However, the artificial -- artificially constricted

11 approach he urges upon you is quite flawed. This case is, as I don't need

12 to remind you, a mass murder case, and mass murder cases by definition,

13 Your Honours, involve multiple corpses. And when a case is

14 circumstantial, as parts of this case are, you must examine the evidence

15 in its totality.

16 And we, the Prosecution, of course concede that if you were to

17 examine say only one random body found at the canal, a reasonable doubt

18 may of course exist as to, A, the existence of a joint criminal

19 enterprise; or B, the participation of any or all of the accused in it.

20 But that of itself just illustrates the flaw in Mr. Emmerson's approach

21 and urged on you by other Defence counsel because it is only when you put

22 all of the pieces together, as we have in our final trial brief and now in

23 our oral submissions, that the true picture emerges of the extent and the

24 membership of this joint criminal enterprise. And of course Mr. Emmerson

25 is correct when he says the evidence should be looked at in relation to

Page 11199

1 each event individually. We've never suggested otherwise, but what you

2 must do, as you know, is to weigh all of that evidence in its totality to

3 assess whether the circumstances show Haradinaj must have had a hand in

4 those series of killings, the mass murders I referred to a moment ago.

5 And the Prosecution's case is and it's proved it and given all of

6 the circumstances, no reasonable explanation for these crimes exists other

7 than that Haradinaj must have known that at least some of these crimes

8 were being committed by men under his command, that is, men with whom he

9 was working to assert exclusive control of the KLA Dukagjini Zone. But it

10 is, I'll emphasise this again, a case of similarities, of links, of pieces

11 of evidence that have to be assessed in conjunction with each other, of

12 pieces that come together to show where they all fit into the picture, and

13 it's only then that the clear overall pattern emerges.

14 Now, of all the names that -- of the victims that Mr. Emmerson put

15 to you yesterday, saying in effect that the circumstances in each should

16 be carefully considered but in isolation, only two of the 26 identified

17 victims found at the canal in September 1998 do not entirely fit the

18 pattern of targeted Serb civilians, collaborators, and perceived enemies,

19 et cetera, and these two are Afrim Sylejmani and Melush Meha. But my last

20 statement only applies insofar as there is no direct evidence of their

21 abduction or their appearing on a KLA wanted list, but as set out in our

22 brief Afrim Sylejmani was a former state employee, former teacher, which

23 provided motive to the KLA, and Melush Meha lived in a Serbian minority

24 area in Peje which also provided an association with the Serb enemy,

25 colonizer or occupier as the KLA General Staff was describing them.

Page 11200

1 Afrim's body was of course found next to that of Kujtim Imeraj, of

2 whom you heard direct evidence of how he was last -- how he was last seen

3 alive being abducted by KLA members on about the 4th of July, 1998. His

4 body's on the screen at the moment. Melush Meha's body was found by the

5 canal wall directly under the bullet-holes and next to the body of

6 Pal Krasniqi, who you know was last seen alive in Balaj -- sorry,

7 Brahimaj's custody in Jabllanice on about 25th July 1998, and next to

8 Sali Berisha, the son of Misin Berisha and the evidence clearly

9 establishes that his name featured, that is, Misin Berisha, as a

10 collaborator on a KLA wanted list circulated in Baran by Haradinaj's

11 appointed Din Krasniqi. Now, as you know both - and it's uncontested -

12 died from gun-shot wounds in a similar matter to 18 other bodies found at

13 the canal. Again, if you examine it in its totality and put those pieces

14 into the picture, a pattern emerges showing that they must have been

15 murdered pursuant to the joint criminal enterprise.

16 Now, Mr. Emmerson made another somewhat curious submission

17 yesterday when he said that there was no evidence in Counts 5 and 6 of

18 ethnically motived violence, but he did it quite carefully by confining it

19 to the treatment of Rosa Radosevic. What he neglected to draw your

20 attention to is something I drew your attention to two days ago is what

21 was said to her son, an ethnic Serb, while KLA soldiers were beating him.

22 It's set out at page 973 of the transcript, and it bears repeating:

23 "The KLA soldiers cursed our Serbian mothers. What do you want?

24 Do you know who we are? They used abusive language with respect to our

25 Serbian mothers, claiming that this was their land, what are you doing

Page 11201

1 here?" Et cetera. Et cetera. Is that a serious submission that that

2 violence wasn't ethnically motivated? Surely not, and surely not when put

3 in the context of the coordinated KLA campaign to prevent ethnic Serbs

4 returning to their homes in the area in Ramush Haradinaj's and

5 Idriz Balaj's headquarters.

6 Just going back a bit, three days before this brutal and

7 completely ethnically motivated attack, Veselin Stijovic was held captive

8 at Ramush Haradinaj's KLA headquarters in Gllogjan and brutally beaten.

9 While he was there, the KLA commander of Ljumbarda, Deli Lekaj warned

10 Stijovic who was from Dashinoc, that if he managed to escape Gllogjan

11 alive he should never go back to Dashinoc because the KLA was planning to

12 set up a roadblock in Pozar. At page 2138 of the transcript he said: "He

13 told me, If they let you go alive, don't ever go back to Dasinovac because

14 it's just a matter of time before we put up a roadblock on the road

15 leading to Dasinovac in the village of Pozar."

16 Now, that, Your Honours, is precisely what the KLA did. And when

17 the KLA stopped -- KLA soldiers stopped Rosa Radosevic, Novak Stijovic,

18 and Stanisa Radosevic at the Pozar roadblock, they searched the two cars

19 and told them that the three had "no business anymore" in the area and

20 could not go home. The KLA was preventing Serb civilians going home.

21 Where did they take them? They took them to Gllogjan. What happened on

22 the way? The ethnically motivated violence that Mr. Emmerson sidesteps.

23 On the way KLA soldiers who saw arrested Serbs raise their fists and

24 chanted, KLA, they were taken to Gllogjan and beaten.

25 Now, as an aside I remind you of Witness 17's evidence, of his

Page 11202

1 understanding of the meaning of being "taken to Gllogjan," it's been

2 displayed now at page 7579 of the transcript where he said that:

3 "Tahir Zemaj," that's the FARK commander, "said that if someone was

4 detained and sent -- taken to Gllogjan and if his whereabouts are unknown,

5 then it is Toger's responsibility," that's Balaj, "who carried out these

6 detentions. And that's why the villagers were interested in these things

7 and provided Tahir with information on these incidents, since something

8 was wrong. It was said that the missing persons, those who that were

9 detained and who went missing, these persons were sent to Gllogjan."

10 Now, during the beating that followed Veselin Stijovic, the KLA

11 soldiers insulted their ethnicity, interrogated them about their knowledge

12 of and connections with the Serbian police, and told them to leave the

13 area and go to Serbia. If that's not ethnically motivated violence, I

14 don't know what is. Those three were lucky. They escaped. But the

15 evidence proves beyond reasonable doubt that the KLA, members acting

16 pursuant to the common criminal purpose, did not want those Serb civilians

17 to return to their homes. They wanted to keep them out of the area. They

18 wanted them to "return" to Serbia, although of course these people were

19 long-standing residents of Kosovo.

20 This evidence provides strong evidence of the persecutory

21 intention of those within the common criminal purpose.

22 Now, Witness 28, an unbiased, neutral, and in our submission

23 impressive witness, a human rights monitor working under very difficult

24 conditions gave evidence that in the last week of April 1998, that's in

25 the time I've just referred to, she went to Decan and carefully counted

Page 11203

1 that 34 Serb families had left villages in the Dukagjini area. She

2 estimated by her careful counting that there had been some 123 Serb

3 families living there in early 1998, although she said this figure may

4 have involved -- included those living in the refugee settlement in

5 Babaloc.

6 Mr. Emmerson asked you to carefully consider the role of

7 Ramush Haradinaj. We ask you to do the same. And when assessing his role

8 in the KLA and his prominence in the Dukagjini Zone, you have to consider

9 the nature of command and you have to consider it in the context. That's

10 the context of the power vacuum created by the withdrawal of Serbian

11 authority from the zone by mid-April 1998. Now, this was a vacuum that

12 allowed a young, ambitious, strong, powerful, and charismatic personality

13 like Ramush Haradinaj to step into and to consolidate his personal power

14 over civilian and military matters in the coming months. And it's in that

15 context that the horizontal structure that Mr. Emmerson suggested existed

16 becomes a tool of the common criminal purpose to purge the zone of its

17 enemies by unlawful means. You only have to look at who the main

18 participants were. Family members of both Lahi Brahimaj and

19 Ramush Haradinaj, Daut Haradinaj, Shkelzen Haradinaj, Nasim Haradinaj,

20 Nazmi Brahimaj.

21 In a sense Mr. Emmerson is quite correct. In April/May 1998 the

22 KLA was no normal army. It was an army in its infancy and desperate for

23 the experience of JNA officers like Rrustem Tetaj. It just did not have

24 the classic two-up/two-down command structure of the JNA or the VJ.

25 That's why the common criminal purpose worked. It worked because

Page 11204

1 Haradinaj was a hands-on commander. He wasn't someone who commanded from

2 behind; he was constantly at the front lines. But he's not charged with

3 command responsibility. He's charged with participating in a common

4 criminal purpose involving both his subordinates and others. And it was

5 this lack of rigid formalised command structure, at least in the

6 traditional military sense, that allowed the common criminal purpose to

7 develop and flourish.

8 And the evidence has proved that those outside of the common

9 criminal purpose, professional military officers like Witness 17 and

10 Tahir Zemaj, wanted no part in the structure that developed under

11 Ramush Haradinaj's hand; rather, they wanted a proper military with the

12 members subject to normal and proper military discipline. But this,

13 Your Honours, is the last thing that Ramush Haradinaj wanted; and why,

14 because proper military discipline entails educating soldiers in the laws

15 of war, the conventions of war, and punishing those subordinates who

16 breached them. And doing that, as the evidence has proved, will be the

17 very antithesis of the common criminal purpose as we have proved. As we

18 have set out in our final trial brief, it was this very lack of

19 discipline, this culture of impunity, and the use of so-called military

20 police as instruments of the common criminal purpose that allowed the

21 members of this joint criminal enterprise to achieve their aim.

22 Now, Mr. Emmerson quite correctly pointed out that Haradinaj's

23 military police regulations don't advocate the mistreatment of prisoners

24 of the KLA. Well, of course they don't. Haradinaj may be accused of war

25 crimes, but he's not accused of stupidity, and certainly he wasn't stupid

Page 11205

1 enough to put something like that in writing. What they do say,

2 displaying on the screen, that's Exhibit P893, was, regulation 4, they had

3 to investigate and uncover all those who collaborated with the enemy and

4 were obliged to take measures against all those working against the KLA.

5 And it was in the context of an undisciplined military police with

6 no formal disciplinary system or court system that it allowed the military

7 police, as an instrument of this joint criminal enterprise, to take

8 whatever summary measures it wanted against "those working against the

9 KLA," regulation 4, those suspected of collaboration.

10 But what was in writing? What was most explicitly in writing was

11 the names of those wanted. These names were on Haradinaj's appointee,

12 Din Krasniqi's list. And in his trusted Lieutenant Balaj's pocketbook

13 which he carried around with him. KLA training officer, Cufe Krasniqi,

14 testified that every KLA soldier had the duty to report collaborators.

15 And in the context of his evidence here, that can only refer to soldiers

16 in Dukagjini under Haradinaj's command.

17 The same lack of stupidity I referred to earlier, the same

18 rationale applies when Haradinaj let the ECMM monitors, whom Balaj had

19 detained and after beating up their Albanian interpreter, Haradinaj let

20 them go. Haradinaj had to let them go and in a nice manner. He wasn't

21 dumb. He knew that this was going to be reported back to the ECMM.

22 Now, the reason that you won't find any Serb names on the wanted

23 lists is because anyone with a Serb name was an automatic target of the

24 KLA, members in the JCE, the joint criminal enterprise. An identity card

25 would be enough for condemnation. If you look at the slide which will be

Page 11206

1 shown on the screen now, it shows that all victims on the KLA wanted lists

2 or otherwise wanted by the KLA did not have Serbian names. If you look at

3 the names on the screen, they all have Albanian names.

4 And if you look, it shows you where the victims ended up: Six by

5 the canal, one buried at Jablanica, and one escaped.

6 Another two pieces of evidence are those of -- that when Witness 6

7 and Nenad Remistar were abducted at the same time, Witness 6, a Kosovar

8 Catholic civilian was accused of spying for Serbia, imprisoned, beaten,

9 and then released. Remistar, however, an ethnic Serb traffic police

10 officer, was murdered just after 24 hours.

11 And contrary to Mr. Emmerson's description of Haradinaj's

12 allegedly cordial relationship with the opposition supporting FARK is the

13 evidence of Witness 17 who met Haradinaj on the 10th of July, 1998, and

14 this is after the incident when the supposedly calm and rational commander

15 pistol-whipped a FARK soldier six days earlier.

16 Witness 17 in Exhibit P885 at paragraphs 42 to 43 describes

17 Haradinaj's behaviour on that day as acting like "someone unstable, on

18 drugs. His actions were inconsistent."

19 Returning to Mr. Emmerson's submission in relation to the ethnic

20 cleansing or the attacks on Serbian houses in the Dukagjini area, they

21 were not random; they were systematic. And put it in its geographical

22 context and for what these types of comparisons are worth, it's not a

23 large zone. Compared to, say, The Hague it's about three times the size

24 of The Hague's municipal boundaries. And Mr. Emmerson tried to deflect

25 attention away from the KLA stated policy of attacking the Serb colonizer

Page 11207

1 or occupier as they were called by suggesting that the Serb civilians left

2 the Dukagjini area because of ethnic tensions caused by the minority

3 status within the repressive Serbian, that is, Milosevic, regime.

4 But the evidence establishes a well-organized and synchronised

5 attack on Serb settlements in a single night, the first day of the

6 indictment period, the 1st to 2nd of March, 1998, and I take you to

7 Zoran Stijovic's evidence where he testified that eight synchronised

8 attacks in six different villages in Klina and Gjakove municipalities on

9 that night, and that's paragraph 37 of P931.

10 Now, breaking those down, you can see on the screen what he's

11 referring to. The official notes, that's P967 and 968 demonstrate they

12 were clearly synchronised. On the 1st of March at 10.15 p.m. there was an

13 attack on a MUP housing facility in Erec. On the 2nd of March early in

14 the morning at 1.00 a.m. there was an attack on family houses in Bec in

15 Djakovica. At 1.00 a.m. there was an attack on the house of Belic in

16 Stepanica in Klina. At 2.00 a.m. there was an attack on the Fatic house

17 in Crmljane. At 2.00 a.m. there was an attack in Dolovo on a Serb house,

18 Garic. At 3.00 a.m. there was an attack on the Nedavic [phoen] house in

19 Karpus [phoen] in Klina.

20 Now, I won't repeat my submissions in relation to the strength of

21 recognition evidence about Ramush Haradinaj and his neighbours who grew up

22 next to him and went to school with him. But I ask you to consider this:

23 Had the events involving the Stojanovics in Counts 3 and 4 happened in the

24 manner suggested by Mr. Emmerson, a sort of spontaneous uprising of

25 villagers against the Stijovics -- the Stojanovics and Stijovics, where

Page 11208

1 was Haradinaj when this was occurring? Why would he not have been there

2 attempting to control this mob and impose discipline on his soldiers and

3 the civilians who were severely mistreating these Serbs? In the context

4 of all the evidence you have heard about his presence and management

5 style, he had to have been there, and that's supported by the direct

6 evidence that he was there.

7 Where did the KLA soldiers take these people? Straight to KLA

8 headquarters in Gllogjan. Whose headquarters? Ramush Haradinaj's. The

9 evidence is entirely consistent with Haradinaj's role within the joint

10 criminal enterprise. Other KLA soldiers including his brother Daut

11 commenced the attack and Ramush Haradinaj later arrived on the scene at

12 his own headquarters joined in the attack by kicking a man lying hard on

13 the ground who was already suffering serious internal injuries.

14 Now, going briefly to Mr. Emmerson's submission about the strength

15 of Mijat Stojanovic's recognition evidence, what Mr. Emmerson didn't

16 submit of course was the completely plausible explanation for why Mijat

17 didn't mention Ramush Haradinaj's name at the time. And the Prosecution

18 of course we readily concede that in the context of this particularly

19 brutal assault, and the Defence does not deny there was a brutal assault,

20 Ramush Haradinaj's role was more minor but only insofar as it was the

21 others who were beating the victims with rifle-butts. But

22 Mijat Stojanovic explained this to you at trial when Mr. Emmerson showed

23 the Article D25, and it's on the screen now, he asked, Why didn't you

24 mention his name on the day? His answer was: "Nobody asked me at the

25 time ... I'm not talking about the names I saw; I'm talking about the

Page 11209

1 names that beat me."

2 And in relation to the presence of Daut Haradinaj he said that

3 when was asked him -- was told that there was no mention: "Well, that may

4 be the case. I have no idea what the journalists wrote. I am certain

5 that Daut was among them. Journalists include or omit whatever they like.

6 It's not my place to judge that."

7 This is not a case of delayed memory or recognition and

8 Mr. Emmerson's reliance on the Kupreskic appeal judgement at paragraph 40

9 is misplaced. The case is entirely indistinguishable because if you go

10 back to the Canadian Supreme Court case it relies on, it had nothing to do

11 with ID evidence. It related to a trial where the Judge found that one

12 witness was so unreliable his evidence required corroboration. The facts

13 here could not be more different. Mijat Stojanovic and

14 Dragoslav Stojanovic knew Ramush Haradinaj.

15 The body recovery operation. It was imperfect, we concede that,

16 we recognise it. It was in a war zone. It was an area retaken only after

17 a massive Serbian offensive referred to in Zivanovic's and Crosland's

18 evidence. Judge Gojkovic just did not have the resources to undertake the

19 massive exercise of examining a crime scene containing a mass grave and

20 spread over a distance of a kilometre using local MUP officials. He had

21 to summons help from Belgrade and assemble a forensic team, and that took

22 time.

23 Two days, in fact. They had to drive many hours from Belgrade.

24 It was an area vulnerable to attack. It was deep within enemy territory.

25 It had been held, as Witness 17 said, by the KLA in his time since he'd

Page 11210

1 been there. The facilities were so basic they had to set up a morgue in

2 the basement of a hotel. The team was working under what

3 Professor Aleksandric described as war conditions. They stopped when a

4 missile exploded. And if you look at paragraph 243 of Aleksandric's

5 statement on the screen, Exhibit P1260, he explains it.

6 "A shell flew over the canyon and fell on to the other side."

7 And at page 6814 of the transcript, asked to say where it came

8 from and who fired, he said: "Somebody fired a mortar at us. We were

9 told it was a mortar by an experienced policemen who had been in combat

10 there for months."

11 That was enough to send them flying.

12 Judge Gojkovic ordered work to cease. But if we just go back to

13 the crime scene for a moment to show how it was uncovered. When the large

14 photograph comes up on the screen, you can see from the overview where the

15 bodies were located. They were next to the canal and they were up to 1

16 kilometre downstream from it. That's a lot of bodies over a big area.

17 Now, Mr. Emmerson's submission about KLA captives Kalamashi,

18 Alija, and Musaj taking the -- the suspicion you should view what happened

19 there is, to use an English expression, a classic red herring. We concede

20 readily that they may have been mistreated in custody and the custodial

21 records are severely lacking. But the evidence is only of an

22 investigatory lead. We wouldn't suggest for one moment you could use the

23 evidence against them in a case or as a confession. The important thing

24 is they took the Serbs to the canal.

25 And what did the Serbs find when they got there? Judge Gojkovic

Page 11211

1 described it in his statement, that's P1193, paragraph 24, where it says:

2 "We came to the canal. I saw bullet-holes in the canal wall and bodies at

3 the wall of the canal."

4 At paragraph 29 -- 28: "I saw bodies dressed in civilian clothes.

5 I saw body parts at the wall. My impression of the scene was of a very

6 gruesome sight with bodies and body parts all over the place, the smell,

7 the flies, the blood, it was a terrible sight. I observed bodies covered

8 by the soil and by the wall at the canal. I crossed the canal and saw

9 more bodies and body parts."

10 Now, it's worth revisiting in response to Mr. Emmerson's

11 submissions about the body recovery, the bullet-holes, and you can see

12 them there on the screen at P416. The bullet-holes were clearly on the

13 inside and outside of the canal wall near the bodies. Colonel Crosland, a

14 very experienced military officer, independent, neutral, an impressive

15 witness in our submission, described them as splash marks caused in his

16 view by bursts of automatic fire and some single shots from a distance of

17 about 10 to 20 metres. This is not consistent with, as Mr. Emmerson would

18 like you to believe, an exchange of fire across a -- across the canal.

19 And the Frrokaj's canal -- sorry, car was lying in the canal just

20 below the water, and it's worth -- it's worth pausing here just for a

21 moment to recap their evidence of what happened the Frrokajs who were last

22 seen entering Gllogjan through the KLA check-point. The only way out past

23 that check-point was either back through the check-point they went in

24 through or at the KLA check-point on the other side or there's a third

25 alternative, taking the road to the canal. Well, where did the car end

Page 11212

1 up? You can see on Exhibit P64 exactly where it ended up with

2 Illira Frrokaj's body in the trunk or boot and both containing signs of

3 burning.

4 Another red herring is what Witness 21 saw or didn't see when he

5 went there. There's a very obvious explanation for what he saw. He could

6 not have seen that car there or the bodies as they were strewn along that

7 one kilometre covered by vegetation in part from where he was standing.

8 The evidence is also clear that those who went to the canal looking for

9 the Frrokajs' bodies feared meeting Toger, Balaj, and even devised a plan

10 of self-defence in the event of meeting him.

11 We submit that Shkelzen's offer of assistance like his brother

12 Ramush's to the family of Sanije Balaj was nothing more, in the

13 circumstances, a public relations sham.

14 Now, Achilleas Pappas, another neutral person, also went to the

15 canal and what did he see when he got there? P271, which will be on the

16 screen in a moment, describes him seeing bullet marks, which obviously in

17 his opinion killed these people. He said it was common sense. At

18 paragraph 23, based on his experience he said there was no doubt that the

19 mass grave was directly linked to the KLA presence in this area. My

20 opinion is based upon the following. It was located in an area controlled

21 by the KLA until they had to retreat due to a Serb attack at the end of

22 August/beginning of September, and based on the level of putrefaction it

23 was clear they were killed some time before they were found. There was no

24 single Serb presence in this area until that attack.

25 Now, the existence of this mass grave was also an open secret

Page 11213

1 amongst the KLA in the Dukagjini area but not everybody could stomach it,

2 Your Honours. On the 20th of August, 1998, Mr. Emmerson made some

3 submissions about this, just three weeks before the Serbian forces

4 discovered this mass grave, the topic of KLA crimes and the bodies in the

5 canal was raised at a meeting of 68 KLA village commanders in Prapaqan.

6 JUDGE HOEPFEL: Sorry, Mr. Re, a little slower, please.

7 MR. RE: Haradinaj -- I'm sorry. Are we there?

8 Haradinaj sat at the front -- at a table at the front of the room

9 and Rrok Berisha, a FARK member, stood up in a voice loud enough for

10 everyone to hear asked for the KLA to stop committing crimes, declaring

11 the fish in Lake Radoniq were getting fat on human flesh. Now, this is

12 corroborated by another source, it came from Witness 17 because it was

13 also known to the DB which had three or four sources at that particular

14 meeting, which is page 9090 of Mr. Stijovic's testimony.

15 Mr. Guy-Smith seemingly attacked the Prosecution on its choice of

16 witnesses, but like parties to litigation anywhere in the world you can't

17 choose your witnesses; you take them as they come. In the accusings of

18 cherry-picking, I remind the Trial Chamber that we applied for 21

19 subpoenas, of which you issued 18, which is unprecedented in the

20 Tribunal's history as a total percentage of testifying witnesses. And our

21 proposed witness order was thrown out the window within weeks because

22 witnesses refusing to testify against the accused.

23 As you know, eventually only four refused to testify, two in

24 Kosovo, one in the United States and Canada, but of these four, the

25 Trial Chamber, not the Prosecution, indicted -- the Prosecution's

Page 11214

1 indictment of two of them, three for contempt. And Avni Krasniqi and

2 Sadri Selca given numerous warnings and offers of transportation to The

3 Hague had to be indicted and brought here to testify.

4 In assessing the evidence against his client, you have to consider

5 some consider -- some compelling similarities, and in particular, Balaj's

6 modus operandi because Mr. Guy-Smith's submissions were devoted to

7 recognition of identification. The victims about who you have heard

8 direct evidence of his personal attacks have a number of similarities. I

9 will deal with eight. First, they were all women. One he raped after

10 taking to her -- to his headquarters; the other three, all members of the

11 Serb collaborating family, he abducted. The three were then murdered.

12 Second, he visited their homes late at night. Third, he came to these

13 women's homes with armed soldiers. Fourth, he commanded these armed

14 soldiers. Fifth, the soldiers called him Toger. Sixth, he took Sister S

15 and the rape victim to the KLA headquarters in Irzniq. Seventh, Toger

16 wore black clothes, just like the Toger you can see in the Baran

17 swearing-in video. Eighth, the victims in both counts, families, the rape

18 victim -- not the -- families clearly identified a clearly recognised

19 Balaj from photo identification boards as the Toger in question.

20 Now, of course Sanije Balaj, whose bullet-ridden body was dumped

21 at the canal, was also a woman. Another similarity is that his counsel,

22 Mr. Guy-Smith, did not suggest to Witness 4, Witness 19, or to the rape

23 victim -- did not suggest to the rape victim that no one called Toger came

24 to their houses, abducted family members, or in the case of the rape

25 victim, raped her. He did not suggest or put a case that the soldiers who

Page 11215

1 came with Toger -- the soldier did not identify himself as Toger. He

2 didn't put to Witness 4 that Toger did not introduce himself to the

3 witness as Toger. The reason is obvious. There was only one Toger, an

4 outsider, as Mr. Guy-Smith rightly concedes, and one whose name,

5 Idriz Balaj, was not generally known then. But they all knew who Toger

6 was even if they didn't know his name. And by process of elimination,

7 there being no other Toger in the zone, much less one matching the

8 description of Idriz Balaj, the only conclusion available on the evidence

9 is that Toger, the Toger who personally committed the crimes charged, is

10 Idriz Balaj.

11 Exhibit 1230 shows photo identification made by another witness of

12 the rapist Toger as Balaj, that's number 6. Witness 17, who knew Balaj in

13 1998 identified Toger as Balaj without photo-boards. Avni Krasniqi

14 identified Toger by name as Idriz Balaj.

15 Now, the reasons Mr. Guy-Smith suggests for Avni Krasniqi to

16 manufacture a story about Balaj's involvement in the disposal of

17 Sanije Balaj's body are so far-fetched and fanciful as not even to bear

18 cursory examination before you summarily reject them. He made a ludicrous

19 and unsupported assertion that Avni Krasniqi received benefits including,

20 and I don't know what including means, they're not informing, that's us,

21 the cooperating state of Switzerland, a person they knew was wanted was in

22 custody and they let him go in exchange for his testimony. All aspects of

23 that assertion are false.

24 Avni Krasniqi was one of the most reluctant witnesses ever to come

25 before this Tribunal. Not only did he refuse to obey a subpoena and

Page 11216

1 ignore an order given to the Prosecution to indict -- to investigate him

2 for contempt, a Kosovo investigator gave him an attempt to have him

3 testify voluntarily. The Trial Chamber, not the OTP, indicted Krasniqi

4 for contempt, and he was given another opportunity after his arrest but

5 before his transfer to come voluntarily rather than as an indictee. And

6 he was never in the Prosecution's custody; he was in the Tribunal's

7 custody. And the Prosecution had no contact with him between his arrival

8 here and his departure, apart from in court. It's on public record, page

9 10772, and all contact was through his lawyer, Mr. Pestman who was not

10 aware of the sentences in Switzerland committed some 13 years ago --

11 sorry, imposed some 13 years ago in absentia. He did not even know until

12 after he had informed the deputy registrar and then the Prosecution that

13 his client was going to testify. It was not an inducement, had nothing to

14 do with it.

15 And when Mr. Krasniqi testified, his evidence was entirely

16 consistent of that he gave in the trial of Galani in Kosovo. He's never

17 wavered in saying that Idriz Balaj took or ordered the body to be exhumed

18 and took it away. No plausible or credible reason exists for him to

19 falsely accuse Balaj of this. He was the only witness. If he was going

20 to accuse Balaj of something, why not the murder? The truth is he told

21 the truth. He got absolutely nothing out of testifying and he did not

22 want to be here, and Idriz Balaj as an outsider had absolutely zero

23 connection with any supposed blood-feud between the Krasniqi family and

24 Sanije Balaj's family in the Baran valley area.

25 Avni Krasniqi didn't know where Balaj took the body. He only says

Page 11217

1 he saw him driving off with it. And crucially, which shows what a house

2 of cards this is, the DNA identification of Sanije Balaj's body was not

3 confirmed until the 28th of May last year, almost two weeks after

4 Avni Krasniqi testified in Kosovo on the 16th of May. He could not have

5 known that R-1 was Sanije Balaj's body, nor that it was on top of

6 Witness 4's mother and sister. The only person who probably knew that was

7 Idriz Balaj.

8 I want to take you to a submission in relation to Ylber Haskaj's

9 evidence and I just want to demonstrate with a map or a photograph, and

10 that's the photograph at Exhibit 1217 which was where he said the Black

11 Eagles were. Now, if you put on top of that, and we've got a Google Earth

12 photograph showing where that actually was, you can see it was within that

13 square zone and that is entirely between where Ramush Haradinaj's house is

14 which is to the right of the photograph and the Ekonomija farm which is to

15 the left. So although we say he wasn't particularly reliable on this

16 point, where he says the Black Eagles was is also in that area right

17 between the Haradinaj family compound, the Ekonomija farm, and the canal.

18 We have some -- we can provide copies of that in hard copy if the

19 Trial Chamber wants them.

20 [Trial Chamber confers]

21 JUDGE ORIE: If -- it's not in evidence, but if there's no

22 objection from the Defence then -- one simple question in relation to

23 this. When I use Google Earth, I usually get a picture from the top to

24 the bottom. This seems, as has been presented I think earlier as well, a

25 stretched version which -- and that's of course one of the problems, also

Page 11218

1 stretches proportions. But if there's no problem, just for you to know

2 that --

3 MR. RE: This was done by our G.I.S unit stands for Geographical

4 Information System unit --

5 JUDGE ORIE: Yes, yes.

6 MR. RE: -- using, I think, an enhanced version of Google Earth.

7 JUDGE ORIE: I don't know whether it's that bureau that does these

8 kinds of things but I think if you want to make a touristic brochure, this

9 certainly helps. If, however, Judges want to get a clear impression of

10 distances, et cetera, then it does the opposite; it doesn't help, but it

11 rather confuses the picture. But we'll receive it.

12 MR. RE: Turning to Lahi Brahimaj, now Mr. Harvey complained

13 yesterday I hadn't devoted enough attention to developing the case against

14 his client. I'm happy to oblige him by turning to some points, and we of

15 course emphasise that Lahi Brahimaj is no Nelson Mandela and this Tribunal

16 isn't the Pretoria Supreme Court in South Africa in 1964 at the height of

17 apartheid. And if you look at the evidence as he invited me to do so, and

18 this is the evidence that convicts his client, I make these points:

19 Brahimaj participated in savagely beating prisoners at Jabllanice

20 barracks. He participated in beating Witness 6. He tricked Witness 3

21 into going there. Witness 3 was immediately beaten with baseball bats by

22 other KLA soldiers. He was often present there and in the same room where

23 Witness 6 was imprisoned between 13th of June and 25th of July. He must

24 have seen or must have been aware of the shocking mistreatment and torture

25 meted out to Pal Krasniqi, a Bosnian, three Montenegrins, and

Page 11219

1 Skender Kuci. He took Witness 3 from his room into an adjoining room

2 where Witness 3 was beaten by women KLA soldiers, encouraged to commit

3 suicide, and threatened with execution. Brahimaj himself accused him of

4 spying, but fortunately Witness 3 could escape. Brahimaj abducted Witness

5 3 at gunpoint a second time, beat him, and threatened him. He showed

6 great concern to the now-deceased Skender Kuci, having offered 10.000

7 marks to Witness 3 to help him escape. Brahimaj took Witness 3 to

8 Gllogjan to imprison him there, although the commander later released him.

9 Brahimaj moved prisoners, took prisoners to Jablanica, and tortured them.

10 The evidence is clear, it's in Witness 6, Witness 3, and is also very

11 strong identification evidence which wasn't really challenged.

12 In relation to Mr. Harvey's legal point, clearly the word "next

13 to" should be read to mean "near to." Nothing turns on that at all. It's

14 not a material particular or a charge, it's a slight misstatement of

15 geographic position of two KLA buildings in Jablanica. His other point

16 can also likewise be dismissed by putting it into perspective. It's the

17 fact that Brahimaj condoned and encouraged criminal capacity -- criminal

18 conduct in his capacity as a commander, that is important. And even on

19 just the wording of the indictment, that would be a relevant factor to

20 consider in assessing the importance of his contribution. The pre-trial

21 brief simply corrects a minor clarification of an existing allegation in

22 the indictment. The accused has been on notice since before the trial of

23 the case, he has had a fair trial, there is no investigation needed, he

24 needed no time to investigate, he was there, he knows exactly what

25 happened.

Page 11220

1 One point I do emphasise, though, is that Brahimaj was a proud

2 member of the General Staff, sometimes also called the central staff. But

3 this is the same General Staff that was proudly proclaimed responsibility

4 for murdering Serb civilians and collaborators in the years, months, and

5 days directly before the conflict in 1998. His lawyers don't deny the

6 accuracy of the minutes of the meeting of the 23rd of June, 1998, in which

7 it is recorded that he had been a member of the secret central staff since

8 1993.

9 And the General Staff spokesperson, Jakup Krasniqi, even admitted

10 in Exhibit P328 about the -- about the suffering of the KLA collaborators

11 where he said: Even if some people have suffered, these have been more

12 Albanian collaborators than Serb civilians.

13 You've seen the communiques which showed the KLA had long-standing

14 and openly stated policy of liquidating collaborators. The evidence of

15 this is incontrovertible. I refer you also to Jakup Krasniqi's testimony

16 in Limaj which is Exhibit P340 here and the fact that Zoran Stijovic

17 testified to the accuracy of these communiques which the Defence attempts

18 to dismiss as mere propaganda; they weren't.

19 The context is that if you look at the communiques up till 29th of

20 April, 1998, which is annex 12 of the Krasniqi statement, P328, it was

21 then when the international community was present that the KLA, so to

22 speak, decided to launch itself with a new image internationally, and that

23 was just after the United Nations Security Council had passed Resolution

24 1160 on the 31st of March: "Condemning all acts of terrorism by the KLA."

25 It was only at that point that the KLA issued that communique,

Page 11221

1 saying that it condemns terrorism and other violations of the civilian

2 population.

3 But as the evidence has proved, so far as the KLA and those

4 participating in the joint criminal enterprise was concerned, it was

5 business as usual in their attacks on civilians and alleged collaborators.

6 THE INTERPRETER: Could Mr. Re please stop shuffling the papers.

7 Thank you very much.

8 MR. RE: The similarities in this case, as I opened with two days

9 ago, are so compelling that the only conclusion is of the guilt of the

10 accused. The bodies were all disposed of in an area less than 2

11 kilometres from Haradinaj's house, in an area controlled by the KLA,

12 within the control of the Gllogjan staff, which was Ramush Haradinaj's

13 power base throughout the indictment period. He was by far the dominant

14 military leader based on his personal -- direct personal relations with

15 KLA village leaders. He concerned himself with every aspect of military

16 and civilian affairs. As a formal matter, he was head of the Gllogjan

17 staff. He directly engaged in acts of violence against his Serb

18 neighbours. He issued orders for the detention of suspected collaborators

19 and several of those who disappeared were, indeed, arrested on that basis

20 by members of the KLA. The evidence, in our submission, is damning, it's

21 overwhelming. The only conclusion you can reach on the totality of the

22 evidence is that Haradinaj, Balaj, and Brahimaj are guilty beyond

23 reasonable doubt of all of the crimes charged in the indictment.

24 JUDGE ORIE: Thank you, Mr. Re. We'll have a break ...

25 [Trial Chamber confers]

Page 11222

1 JUDGE ORIE: Mr. Re, your reference to the Security Council

2 resolution, of course we should have in our mind when 1160 would have

3 been, but March of what year?

4 MR. RE: 31st of March, 1998.

5 JUDGE ORIE: 1998. Yes. Yes, that's -- also appears from the

6 context. Yes. Yes. Because it -- the other event, 29th of April, 1998,

7 was just after this -- the Security Council passed a resolution. Yes.

8 Thank you for that.

9 We'll have a break and we'll resume at 4.00.

10 --- Recess taken at 3.32 p.m.

11 --- On resuming at 4.02 p.m.

12 JUDGE ORIE: Mr. Emmerson, you'll be the first one to --

13 MR. EMMERSON: Yes, thank you, and we've discussed allocation of

14 time between ourselves.

15 JUDGE ORIE: Yes, please proceed.

16 MR. EMMERSON: What I want to do in my rebuttal and rejoinder is

17 to look at eight pillars of the Prosecution case, as Mr. Re has sought to

18 draw them out in his submissions yesterday and today, in order to

19 illustrate what we suggested to the Trial Chamber at the outset of our

20 submissions; namely, that once the component elements of the Prosecution

21 case are subjected to searching judicial scrutiny, the glib superficial

22 and broad-brush inferences that the Prosecution invites you to draw are

23 ultimately shown to be based upon a contrived interpretation of both

24 documentary and testimonial evidence.

25 Let me start with persecutory intent. Yesterday and at two points

Page 11223

1 in their closing brief the Prosecution drew the Trial Chamber's attention

2 to a set of minutes of the Gllogjan staff dated the 9th of July which they

3 assert included a threat from the Dobrigje representatives to attack two

4 Montenegrin households in the village and which they say was then borne

5 out a few days later when those houses were in fact attacked.

6 The Albanian original of the exhibit to which Mr. Re referred at

7 transcript 11062 yesterday is P190. As it happens, there is no official

8 translation uploaded into e-court, which is presumably why it wasn't put

9 up on the screen by Mr. Re. The Prosecution has, in fact, based its

10 reading of those minutes on a draft translation which is inaccurate and

11 has not been agreed. The Defence translation of this document reads that

12 there are ten individuals able to go and get weapons, but even on the

13 draft translation used by the Prosecution - and bear in mind, there is no

14 translation to which they have drawn your attention of the minutes as a

15 whole - but even on the draft translation that the Prosecution is working

16 from, the minutes don't contain any threat at all. It's taken completely

17 and utterly out of context. What the minutes show is each village in turn

18 reporting back on the situation as it is in the ground, who lives in the

19 village, the size of the population, the number of men available to fight,

20 their weapons, their state of readiness in case of Serb attack, and the

21 entry for the Dobrigje representative makes no threat at all. It simply

22 lists the number of households and the number of people ready to fight.

23 However, there's no reliably sourced evidence concerning the alleged

24 attack by the KLA on the households in Dobrigje. The 92 ter statement of

25 Witness 68 on which they rely says in terms that she knows nothing about

Page 11224

1 the details of the attack or who perpetrated it, and she was asked no

2 questions about it during her testimony.

3 It is, regrettably, a case in which the Trial Chamber is going to

4 need to subject every single, every single, assertion that the Prosecution

5 makes to a level of scrutiny that Judges shouldn't really have to apply

6 when examining submissions made by those representing prosecuting

7 authorities because they ought to be able to trust the accuracy and the

8 fairness of the way in which matters are put. But this is a case that has

9 been put together throughout by selectivity, decontextualization and

10 contrived interpretation.

11 Let me give you another example from really the second major

12 pillar of the Prosecution case. Mr. Re suggests to you that the military

13 police were an integral part of the joint criminal enterprise and were

14 used by Ramush Haradinaj to hunt down suspected opponents and to kill

15 them. But the entire basis upon which that -- those allegations, that

16 assessment, is put forward is based upon - to put it generously -

17 insufficiently close attention to the detail of what the evidence actually

18 shows. There is no evidence at all in this case of any crime, even

19 allegedly, being committed by any member of the military police appointed

20 by Ramush Haradinaj. The only evidence of their activities relates to the

21 investigations conducted by Fadil Nimonaj into the investigation of the

22 death of Sanije Balaj and of the disappearance of Nurije and

23 Istref Krasniqi. The story is very clearly told in four exhibits and I'll

24 just for the record give the references, P140, P893, D60, and P224, a

25 series of records which show how, when, and why the military police that

Page 11225

1 Ramush Haradinaj set up came to be established. A number of points

2 emerge. First of all, there is no evidence at all, indeed there is

3 evidence to the contrary, that the regional staff created on the 26th of

4 May ever had a military police.

5 The first reference to a military police unit in any minutes of

6 any meeting within Mr. Haradinaj's area of responsibility arises on the

7 21st of June, the meeting at which the military police regulations were

8 adopted. That is P140. The Trial Chamber reads those minutes. It is as

9 clear as it possibly can be that what takes place at that meeting is a

10 preliminary discussion on the proposal with different drafts of police

11 regulations circulated and a discussion on what the function and role of a

12 military police should be.

13 Rrustem Tetaj who was at that meeting told you - and the

14 Prosecution didn't seek to undermine this evidence - that no military

15 police unit was in fact set up at that meeting on the 21st of June.

16 D60 are the minutes of a meeting on the 25th of July of the newly

17 formed operational staff. Those minutes take the next stage in the story

18 forward. They record the steps which had been taken in the interim

19 towards the formation of this unit and the appointment of Tigri,

20 Fadil Nimonaj as its commander. They note that the FARK brigades, which

21 of course by then had been established, "support the idea of a military

22 police." It's clear from the minutes themselves that a military police

23 unit was not formed by the Dukagjini Plain Operational Zone any earlier

24 than the 25th of July, something that was confirmed directly in testimony

25 by Rrustem Tetaj and by Shemsedin Cekaj, both of whom attended the

Page 11226

1 meeting, and the footnote references are in our brief. And the matter is

2 put beyond doubt at P224, a report by Mr. Haradinaj to the General Staff

3 of the 28th of July saying we have now formed a military police.

4 So we have the clearest possible evidence as to how, when, and

5 where the military police unit was formed. What the evidence does show,

6 though, is that other autonomous military police groupings were set up in

7 two of the areas that fell outside Mr. Haradinaj's area of responsibility

8 prior to the establishment of the Dukagjini operational zone on the 23rd

9 of June, Pjeter Shala and his documentation for the formation of a

10 military police, which states clearly that the military police that he

11 described himself as being a member of, a so-called unit, reports to the

12 commander of the local staff from which it receives its orders, and the

13 two self-styled policemen wandering around the Baran valley, Mete and

14 Avni Krasniqi, who, it will be recalled, came from Vranoc, an area right

15 on the edge of the territory covered by the regional staff established on

16 the 26th of May, but right on the edge of the zone that was commanded as

17 subzone-commander by Rrustem Tetaj. So if they had been appointed in any

18 sense through the framework of the regional staff, then they would have

19 been appointed by Rrustem Tetaj. But his testimony, as the Prosecution

20 acknowledges and reminds you, is that this man was not someone that he

21 appointed; indeed, that Mete Krasniqi, he thought, had been appointed on

22 his own personal initiative. In other words, he walked around proclaiming

23 himself to be a member of the military police.

24 But that doesn't suit the Prosecution's case. It requires too

25 much penetration of the detail and disentitles them to make a broad-brush

Page 11227

1 allegation that crimes on this indictment were committed by

2 Mr. Haradinaj's military police. It's just not true.

3 Let me go to the third pillar, lists, target lists says Mr. Re.

4 Target lists circulated by Din Krasniqi, who had been appointed by

5 Ramush Haradinaj. What he's referring to of course is Exhibit P885, the

6 private notes written by Witness 17 in his own notebook following a

7 meeting on the 12th of July at which he appointed a military police unit.

8 Those notes for the record are dealt with in our brief at paragraphs 149

9 to 150, 484 to 488, 509 to 511, and 597 to 598.

10 When he was cross-examined about this list - and the Trial Chamber

11 described his testimony at the time in the course of cross-examination as

12 evasive - when he was cross-examined about this list Witness 17 said first

13 of all that he didn't know who had given him the names, nor did he know

14 why the people were being sought or who was looking for them. But the

15 critical thing is that the Prosecution's attempt to try to ramrod this

16 into Mr. Haradinaj's responsibility is based on nothing. There is nothing

17 to connect that list to Mr. Haradinaj, and as I emphasised yesterday at

18 transcript 7700, I asked Witness 17: "Did you ever tell Mr. Haradinaj

19 about this list?"

20 And he said: "No." One of the names on the list was

21 Skender Kuci's name. Well, we know - and it's not challenged by the

22 Prosecution - that when Ramush Haradinaj was told about the detention of

23 Skender Kuci, he intervened. So to suggest that this was a list of people

24 who were being hunted on his behalf is completely contradictory to the

25 evidence, but that doesn't suit the Prosecution because they don't want

Page 11228

1 the Trial Chamber to dig deep or to penetrate.

2 It's worth, again, just contemplating what that intervention in

3 practical terms involved. It occurred, as the Trial Chamber is aware, at

4 the or during the second half of July, just as the Serb forces were

5 beginning the first serious stages of the summer offensive. On the 13th

6 of July you will remember Colonel Crosland had reported increasing

7 evidence of wanton damage to the villages in Decan, and by the 28th of

8 July, two weeks later, he was reporting that every village from Lapushnik

9 westwards had been attacked with cannon and heavy mortar. And it was in

10 that context that Mr. Haradinaj left the front line and made the journey

11 to Jabllanice in order to direct the release of a man he knew little or

12 nothing about. And on the evidence that you've heard when he did so, he

13 gave an injunction that nothing of the kind should ever happen again.

14 So the inclusion of Skender Kuci's name on the list hardly

15 supports the Prosecution case theory.

16 Witness 17, when asked by Mr. Kearney whether Mr. Haradinaj had

17 raised the issue of collaborators in the 20 or so meetings they had

18 together, said that he never once raised the topic. Transcript 7565.

19 The Prosecution sought to argue that Mr. Haradinaj or the Gllogjan

20 headquarters had a list of its own and there is a completely factually

21 inaccurate allegation in a 92 ter statement of Zoran Stijovic, the man

22 upon whom the Prosecution invites you to draw inferences about the

23 activity of the KLA, where it is alleged at paragraph 42 that the MUP

24 found a target list of Serb spies at the Gllogjan headquarters of

25 Mr. Haradinaj after the 24th of March operation. In fact, the report that

Page 11229

1 Mr. Stijovic purported to produce made no such -- gave no such foundation.

2 It stated in terms that the MUP had found address books with names in them

3 and they didn't know one way or the other whether these were lists of KLA

4 members, KLA supporters, or possible targets, and the Trial Chamber then

5 declined to admit the document. There's no evidence at all of a hit list

6 or a target list from Gllogjan.

7 What then do the Prosecution say about Witness 17's list? First

8 of all, they say Zenun Gashi's name was on the list, and so it was. Well,

9 if the dates that were supplied by Witness 52 are correct and Zenun Gashi

10 was taken from his home on the 1st of August by Vesel Dizdari on the

11 orders of Mete Krasniqi, Witness 17 was given that list about two and a

12 half weeks before Zenun Gashi was arrested. And so the most obvious

13 inference the Trial Chamber may think is that the group of military police

14 that he chose and appointed - and he said in terms, they were given to me

15 as a list of proposals and I accepted them and I presided over the

16 election of their commander Hasan Gashi - had it in mind that Zenun Gashi

17 was somebody in whom they were interested. That list, that is to say of

18 military police officers, included Iber Krasniqi as an approved member of

19 Witness 17's police force, the cousin of Mete Krasniqi, on whose orders

20 Zenun Gashi was taken. There's no evidence at all that Zenun Gashi was

21 taken to Gllogjan. He was taken and deposited at the FARK barracks that

22 is the clear evidence of Vesel Dizdari and it is corroborated by the

23 evidence of Sadri Selca.

24 Misin Berisha's name is on the list. Well, if Witness 17 was

25 telling you the truth and this was a list of both missing and wanted

Page 11230

1 persons - in other words, it wasn't a list as he told you of people who

2 were necessarily there because they were thought to be collaborators -

3 then you need, as with Zenun Gashi, to look at the time-frame. The

4 evidence of Luan Tetaj establishes no clear date for the disappearance of

5 Misin Berisha and his sons. He was only able to say that they went

6 missing sometime in June or July. In this instance, therefore, it's

7 entirely possible that Misin Berisha was already known to be missing at

8 the time that Witness 17 had the meeting on the 12th of July. He may well

9 be one of those whose name appeared on the list, not because he was being

10 sought as a collaborator, but because someone at the meeting already knew

11 that he was missing. But none of that, of course, suits the Prosecution's

12 case because it would require the Trial Chamber to conduct too penetrating

13 an analysis of the inferences that can properly be drawn.

14 What about Nurije and Istref Krasniqi? What about the suggestion

15 yesterday that their names were on that list? The entry on that list and

16 the only one that could possibly refer to Nurije and Istref Krasniqi reads

17 as follows: "The conflict in Turjake, one person wounded, entrance wound

18 on a side of the neck and exit on the other side, with the destruction of

19 the central neural system."

20 Witness 17 said that that was a reference to a conflict between

21 two families who lived in Turjake village. Well, we know exactly who

22 those two families were and who the person who was shot in the neck was.

23 This was a reference to the shooting bound up in the blood-feud.

24 The same note also contains an entry which records two women

25 collaborators, Turjake Kosuriq, now of course that doesn't fit either

Page 11231

1 because it's a reference to two women in two different villages, but says

2 the Prosecution, you can twist it. You can infer that must be a reference

3 to Nurije Krasniqi. Well, on what basis does the Prosecution say that?

4 And anyway, what's it got to do with Ramush Haradinaj? It's not in his

5 notebook.

6 The lists, really, in order to buy the theory of the lists or to

7 try to find any connection between Mr. -- I'm sorry, Witness 17's notebook

8 and Ramush Haradinaj, the Prosecution are then driven to use the language

9 of parallel structure to suggest that going on in the Baran valley under

10 the command of Witness 17 was some independent structure.

11 It's worth just pausing for a moment to recall what that

12 suggestion is really based on, and we deal with it in our brief at

13 paragraphs 80 to 91, 489 to 500, and 662 to 663. It's a point that the

14 Prosecution cling on to in closing. Well, it was based on the

15 proposition, first of all, that Witness 17 thought that Ramush Haradinaj

16 had appointed Din Krasniqi in the first place. Again, a suggestion that

17 Mr. Re made several times this afternoon. It was based secondly on

18 Witness 17's understanding that Din Krasniqi continued to take directions

19 and orders from Mr. Haradinaj and to have regular meetings with him after

20 the opening of the FARK barracks, and it was based on his assertion in his

21 92 ter statement that Din Krasniqi also had contact during this period

22 with Faton Mehmetaj and Idriz Balaj.

23 The claim that Din Krasniqi was appointed or selected by

24 Ramush Haradinaj is contradicted by the evidence of Zymer Hasanaj,

25 Shaban Balaj, and Cufe Krasniqi, each of whom gave evidence that Din

Page 11232

1 Krasniqi was elected by local villagers. Indeed, Cufe Krasniqi testified

2 that he personally proposed Din Krasniqi as commander. When pressed in

3 cross-examination as to the basis for his assertion, Witness 17 accepted

4 that he had no personal knowledge of the manner in which Din Krasniqi came

5 to be appointed, 7657, and that he had described him in an earlier witness

6 statement as a self-proclaimed commander of Baran. Why? Because, as he

7 explained in cross-examination, although Din Krasniqi claimed the

8 authority of Ramush Haradinaj, Witness 17 had no official confirmation of

9 this, 7752.

10 What about continuing contacts? He was repeatedly pressed during

11 cross-examination to provide a factual basis for his assertion that

12 Din Krasniqi continued to report to Ramush Haradinaj after the brigade was

13 established, and his answers, which the Trial Chamber will find at 7658 to

14 7664, were as evasive on that as they were on so many other matters. He

15 accepted that he was never present at such a meeting, that he had no idea

16 what if anything may have been discussed. Eventually, after much

17 prevarication he suggested that certain village commanders had told him

18 that Din Krasniqi was reporting to Ramush Haradinaj. So he was asked

19 which commanders? And he said, I don't have a name. I don't know exactly

20 the name. So the Trial Chamber asked him could he remember which village

21 these commanders came from? No, he said, I don't have knowledge about the

22 names. So he was asked whether the information had come from one or more

23 than one village commander. And he said, I can't recall. So he was asked

24 to describe the exact nature of the contact, and he said, I can't talk in

25 details.

Page 11233

1 At the time the Trial Chamber observed that to say that that

2 evidence was very much supportive of ongoing contacts would be an

3 overstatement, 7799. We respectfully agree. The only evidence of any

4 contact between Ramush Haradinaj and Din Krasniqi after the formation of

5 the brigades is a set of minutes P892 of a single meeting of Baran valley

6 staffs on the 29th of July, just as the Serb offensives were about to hit

7 Jabllanice, for example, which records Mr. Haradinaj's presence. In the

8 context of the fragmented and confused command relationships which were

9 then plainly in existence, that meeting can hardly be taken as evidence of

10 a parallel command structure and there's nothing sinister about the

11 meeting or secretive about it at all. Mr. Haradinaj remained as Dukagjin

12 Operational Zone commander during this period, even though Witness 17

13 didn't seem to know, and neither did any of the other witnesses, who if

14 anyone was really in command of who.

15 In his Rule 92 ter statement, Witness 17 also claimed, as I said

16 earlier, that Din Krasniqi had direct contacts during this period with

17 Faton Mehmetaj and Idriz Balaj. Where that suggestion came from, nobody

18 knows, because when he was asked about it during his testimony he accepted

19 that he had no factual basis for it at all, 7799 and 7801 and 7802, but of

20 course that would require a penetrating analysis of the theorizing of the

21 Prosecution, and that's not something which they would invite the

22 Trial Chamber to conduct.

23 I touched yesterday - and I'm not going to go through it again -

24 on the role of Mete Krasniqi and the very obviously close relationship he

25 had with the FARK brigade at Baran, it's set out in detail of our brief at

Page 11234

1 paragraphs 489 to 500.

2 The evidence at its highest suggests that the former KLA

3 volunteers from the Baran valley were disorganized and lacking in any

4 effective command structure and that Witness 17 was unsuccessful in

5 imposing discipline within his area of responsibility after the

6 establishment of the FARK barracks. He said there was a kind of anarchy

7 under the command that he encountered which posed an obstacle to the

8 creation of a unified military command, 7664 to 7665. He said that when

9 he got there he encountered disorganized groups which lacked structure and

10 discipline. They had little or no respect for the chain of command. They

11 were not well organized military units in the vertical sense, 7665.

12 Well, no one disputes that the absence of organizational command

13 which Witness 17 encountered on his arrival would have required a degree

14 of coordination to ensure that the barracks operated effectively, but that

15 was his job. None of this begins to establish the existence of a parallel

16 command structure reporting to Ramush Haradinaj. All it shows is a

17 failure on the part of Witness 17 to impose effective disciplinary steps

18 within his area of responsibility, but there is no evidence that

19 Ramush Haradinaj played any role at all in promoting the continued

20 existence of a separate command. It was, after all, Witness 17 and not

21 Ramush Haradinaj who tolerated the existence of a group of self-appointed

22 policemen operating within metres of his command headquarters.

23 The parallel structure theory, just like the lists theory, on

24 penetrating analysis is a myth. Sanije Balaj, another limb or plank of

25 the Prosecution's closing argument, and the suggestion as it was put to

Page 11235

1 you was that there is independent corroboration for the evidence of

2 Avni Krasniqi. He, says Mr. Re, this afternoon, is somebody who couldn't

3 have been lying because he had no motive to lie. I don't know whether

4 Mr. Re read the Prosecution's closing brief before making that argument,

5 but they themselves assert in terms that Avni Krasniqi is lying because he

6 obviously was about his involvement in the Sanije Balaj case because his

7 evidence is flatly inconsistent with the evidence of Witness 72, of

8 Cufe Krasniqi, of Shaban Balaj, of Witness 17, of every other witness in

9 relation to that incident. He came here and said on oath to the Tribunal

10 that he had nothing to do with stopping her or interrogating her. Once

11 it's clear and once the Prosecution accepts that that evidence is not the

12 truth, how they can then invite the Trial Chamber to proceed with

13 confidence on uncorroborated allegations that he makes is very difficult

14 to understand, but of course all that would require a level of penetration

15 the Prosecution eschews.

16 So yesterday it was suggested that there's corroboration for the

17 allegation that Idriz Balaj moved the body. Where does the corroboration

18 come from? It comes, says the Prosecution, from an official report

19 compiled by Sadri Selca. That's P897 and we deal with it in our brief at

20 paragraphs 721 to 725. It's quite right that Sadri Selca produced a

21 so-called official report, although the reliability of anything said or

22 recorded by Sadri Selca must be open to very serious doubt. But he

23 testified that the basis for his information came from having to spoken to

24 two groups of people. Bear in mind there was an official KLA

25 investigation which interviewed everybody, but going on in parallel to

Page 11236

1 that Witness 17 asked Mr. Selca to look into what had happened. And he

2 said to you that he had spoken to Shaban Balaj, one source, and he had

3 spoken to Ahmet and Hysen Ukaj another source. Well, they obviously

4 weren't telling him anything about the removal of the body because they

5 had nothing to do with that, so the source must have been Shaban Balaj.

6 And he said in terms he was asked: Where did the information come

7 from in your official report that in all probability Toger moved the body?

8 And he replied: It came from those who were close to her. Well,

9 assuming, as it must be that that was a reference to Sanije Balaj's family

10 and in all probability to the only member of the family he interviewed,

11 Shaban Balaj, then it's plain, isn't it, that the source for that

12 suggestion came from Mete Krasniqi who first said that to Sanije Balaj's

13 family at the second of the two Kanun meetings when he and his brother

14 were threatened with double retribution for the murder. That's the

15 source. And as I said yesterday, all of this ultimately depends on the

16 reliability and credibility of Avni Krasniqi, a man who was plainly lying

17 on oath, and Mete Krasniqi, a man who the Prosecution say is responsible

18 for murder. There is no independent corroboration for that evidence.

19 Six, the orders issued by Mr. Haradinaj after his appointment as

20 zone commander on the 23rd of June. Mr. Re made a great deal of this

21 yesterday at 11045 to 11047, and indeed the suggestion as it was put

22 yesterday is that these orders are evidence of micro-management, but in

23 their closing brief the Prosecution alleges that they are evidence of an

24 attempt to intimidate the civilian population in order to suppress

25 opposition to the joint criminal enterprise. Well, we deal with each of

Page 11237

1 those documents in our brief at paragraphs 910 to 928. Can I just say one

2 or two words about them as a whole? The evidence shows that after his

3 election on the 23rd of June, Mr. Haradinaj issued a number of orders

4 aimed at improving military discipline and organization. He issued the

5 call to arms in the general mobilisation order on the 24th of June, the

6 day after his election; and he issued orders forbidding the consumption of

7 alcohol and the unnecessary firing of weapons; he suspended temporarily

8 political activity; and he passed on the order of the General Staff that

9 after the appointment of Jakup Krasniqi as spokesman, KLA members were not

10 supposed to be giving unauthorised interviews to journalists.

11 Now, out of this the Prosecution seeks to spin a case of

12 Mr. Haradinaj's command of a joint criminal enterprise. It's worth just,

13 again, remembering the chronology. All of these orders were issued after

14 the devastating May offensives and shortly before the summer offensives

15 began in earnest. It is common sense that collective defence of civilian

16 communities required mobilisation. This wasn't an army. These were

17 people, a home guard, faced with the overwhelming might of the Serb

18 military machine in classic asymmetrical warfare. Political activity and

19 uncontrolled contact with journalists were a luxury that could ill be

20 afforded. And in the face of a possible Serb offensive which could come

21 at any time, it's only common sense to say that the consumption of alcohol

22 and the uncontrolled firing of weapons, which after all would provide a

23 target for Serb operations, are a threat to the collective well being of

24 the community. None of this shows either micro-management or any attempt

25 to intimidate; they show a commander who was taking sensible measures to

Page 11238

1 try and ensure a collective defence of the community in the face of

2 attacks which could cost hundreds or even thousands of lives and which

3 were intended to drive the Albanian civilian population out of Kosovo.

4 Seven, interventions. The suggestion that Mr. Haradinaj was party

5 to a joint criminal enterprise to ill-treat collaborators. Mr. Re made no

6 serious attempt to deal with Mr. Haradinaj's response to each and every

7 one of the instances on the evidence where the disappearance or

8 ill-treatment of civilians was reported to him. Skender Kuci, Witness 3,

9 Achilleas Pappas, the investigation conducted by his own military police

10 commander who was appointed on the 25th of July into the disappearance and

11 death of Sanije Balaj and the disappearance of Nurije and Istref Krasniqi.

12 All of these instances, are they all a sham?

13 And what about the canal? This afternoon Mr. Re suggested to you

14 that there were only two individuals, presumably he means leaving aside

15 the unidentified remains, only two individuals who don't fit the profile.

16 What profile one might ask? Because in each and every instance, and

17 you'll read it in their brief, the Prosecution tries any possible means to

18 suggest that someone might be a target for the KLA. Essentially anybody

19 who's not a member of the KLA, says the Prosecution, is a target. And

20 they don't say, Well, we can't fit Afrim Sylejmani or Melush Meha into

21 that pattern, but you the Trial Chamber should be sure they were murdered

22 by the KLA pursuant to a joint criminal enterprise because they were found

23 next to Kujtim Imeraj. And Kujtim Imeraj, says Mr. Re, well, he was

24 plainly abducted and murdered by the KLA. But the Trial Chamber has heard

25 the evidence in relation to Kujtim Imeraj and there is nothing to connect

Page 11239

1 the men who abducted him with either the KLA or with Gllogjan. The

2 witness concerned was asked in terms whether anything about these men who

3 were all in civilian clothes suggested that they were members of the KLA

4 or organization or had insignia or said or did anything that would give

5 such an indication, and the answer was no. But all of that requires a

6 degree of penetration that the Prosecution would prefer that the Trial

7 Chamber did not conduct.

8 And of course there's no serious attempt to deal with Idriz Hoti

9 who was a KLA supporter and on his way to join the KLA when he was last

10 seen in an area where fighting was taking place, or Tush and

11 Illira Frrokaj who Mr. Re suggests were abducted at a check-point in

12 Gllogjan and there's just simply no evidence for that all and no evidence

13 for any motive either.

14 In each of these respects, we submit to the Trial Chamber, the

15 Prosecution adopts classically contrived interpretations of the evidence

16 in order to come to a classically contrived interpretation of the overall

17 picture.

18 The Trial Chamber raised a little earlier on today the question of

19 character. I want, if I may, just to conclude with very brief reference

20 to the two character references which are filed with our brief in annex 2.

21 Klaus Reinhardt, the former commander of KFOR forces in Kosovo was closely

22 involved with Mr. Haradinaj very shortly after the end of the war. He

23 describes him as a leader who was dedicated to putting an end to ethnic

24 fighting in Kosovo and as the only Kosovar Albanian leader who

25 consistently emphasised the importance of recognition -- of reconciliation

Page 11240

1 with Serb minority groups.

2 Soren Jessen-Petersen was the special representative of the United

3 Nations Secretary-General in Kosovo during Mr. Haradinaj's tenure as prime

4 minister. He also describes the importance which Mr. Haradinaj attached

5 to initiatives aimed at integrating and protecting the rights of the Serb

6 civilian minority in Kosovo and the effort which he put into the

7 establishment of a truly multi-ethnic society. Both men are of course

8 giving their assessments of Mr. Haradinaj after the end of the war, albeit

9 in Mr. Reinhardt's case immediately after the end of the war. But even

10 so, the person they describe is a leader with a demonstrated commitment to

11 protecting vulnerable civilians and not attacking them. These are

12 independent assessments by two very experienced members of the

13 international community, and in our submission their views, which they

14 have in the past expressed in documents filed in support of provisional

15 release applications should carry considerable weight with the

16 Trial Chamber.

17 JUDGE ORIE: Thank you, Mr. Emmerson.

18 Mr. Guy-Smith, are you ready to --

19 MR. GUY-SMITH: I am.

20 JUDGE ORIE: -- address the Chamber. Please proceed.

21 MR. GUY-SMITH: I adopt the remarks made by my colleague with

22 regard to the factual matters and I will not repeat them now.

23 I find myself today in the similar if not exact position of

24 yesterday when I raised with this Chamber the terrible concern I have with

25 regard to the issue of rumour because an examination of the record, be it

Page 11241

1 careful or even be it cursory, establishes without a doubt that there was

2 no sighting of Idriz Balaj or Togeri and we do not in any fashion

3 whatsoever suggest that Idriz Balaj during this period of time was not

4 known by that name was ever seen at the canal.

5 There is no evidence at all -- and actually affirmative evidence

6 that certainly after the assault on Gllogjan Idriz Balaj was never seen at

7 Jabllanice. There is evidence that he was seen in a number of different

8 places, which makes very good sense considering what his function was.

9 Does anybody in this room not believe that he was the commander of the

10 Black Eagles, a special intervention unit, who had a specific purpose

11 within the context of what was occurring in that area during the summer of

12 1998? As a commander, it makes sense, especially when we're dealing with

13 the size of not only his unit but also the types of interventions that

14 they had to engage in that he would be seen and move about because that

15 was his function, to move about.

16 In the remarks made today by Mr. Re, he once again suggests in his

17 argument a proof which is based upon a conclusion that is not supported by

18 the evidence. He told you today you have to consider Balaj's modus

19 operandi, and then the facts as he relies upon all require one very simple

20 proof, which is that the individual who was involved in these activities

21 was Idriz Balaj.

22 I invite you to review the video of the swearing in at Baran which

23 is his seventh point and really the only point in here in his argument

24 that suggests that you will be able to identify Toger as being at the

25 swearing-in video at Baran. For a moment I take a bit of liberty. I do

Page 11242

1 not consider this testimony, but I have gone through that video. I know

2 many others on this side of the room have searched that video looking for

3 Idriz Balaj and have not found his likeness. Perhaps you will.

4 Mr. Re says that I failed to put to Witness 4 that Toger did not

5 introduce himself to Witness 4 as Toger, and he's right because Witness 4

6 never testified that anybody introduced themselves to him. As a matter of

7 fact, as I discussed with you yesterday, Witness 4's understanding of the

8 name of Toger was something that came in the absence of seeing anybody.

9 He did not see the man the soldiers were calling by this name. There is

10 an assumption that is being made here, and the assumption is that nobody

11 ever called somebody by a name that wasn't their own or by a nickname that

12 wasn't theirs, that people did not misuse or use for that matter another's

13 name. And as a matter of fact, we know that is not the case. We know

14 that is not the case specifically with regard to the testimony that we

15 heard from Witness 4 where some other individual, somebody who he knew

16 claimed to be Ramush Haradinaj. And there's also something else here that

17 seems to have been forgotten in the shuffle which is Toger has a

18 particular significance; it means: Lieutenant.

19 So in such a situation is it unreasonable? Is it unfathomable?

20 Is it not probable that one or another of a soldier would call somebody

21 who had higher rank "lieutenant," which would then translate for purposes

22 of our discussion now to Toger.

23 Mr. Re has told you, But they all knew who Toger was even if they

24 didn't know his name, and by process of elimination, there being no other

25 Toger in the zone, much less one matching the description of Idriz Balaj,

Page 11243

1 the only conclusion available on the evidence that Toger is a person who

2 personally committed the crimes, Idriz Balaj. We have moved in this

3 criminal trial to a process of elimination. That is proof beyond a

4 reasonable doubt? We have moved in this trial to suggest much less one

5 matching the description, you gentlemen have no description, none was ever

6 given. What you have is a myth. What you have is a rumour. I will give

7 you a description that exists in the testimony.

8 "Togeri was described as such at the time. Everything that was

9 happening, the worst things that were happening there then were attributed

10 to Togeri, although he may not have been at that site. So there is

11 nothing specific which I have seen with my own eyes, so I'm just asking

12 both Your Honours and the Prosecution to ask me about things which I could

13 have seen with my own eyes."

14 One of Your Honours: "Yes, could you tell us, you said Togeri was

15 described as such, could you tell us by whom?

16 The witness: "In all villages rumours were spread that this was

17 Togeri who was the source of this and that, but I cannot confirm anything

18 because I have not seen anything like that. It was being commented like

19 that, but as to the reality, I don't know. It's true that he was more

20 dynamic and he was more serious in his tone. That is probably why people

21 reached that conclusion. There was a lot of rumours going around that he

22 did this and he did that, but I have not seen anything and I do not know

23 exactly anything of this sort so I cannot confirm it."

24 One of Your Honours: "You said he was more dynamic. Could you

25 tell us what you exactly mean by that?

Page 11244

1 "He was more enthusiastic. He was cool, but he was by nature and

2 his looks like that. Here is a description. The image that people were

3 talking about, it was something which they had created in their own heads.

4 I don't know how."

5 There's no evidence that was presented that the Black Eagles went

6 into any villages, targeted anybody, no evidence was presented that the

7 Black Eagles committed any crimes. No proof upon which you can rely.

8 And ultimately here we have one of the most dangerous forms of

9 argument that I think exists, which is: We've heard an awful lot about

10 people thinking he's a bad man and he did bad things, and so, you know,

11 what? Based on that you ought to convict him. But that's the reason why

12 we have criminal trials. That's the reason why the burden of proof

13 exists, so that people are not subjected to these particular slings and

14 arrows and specifically so Idriz Balaj who it has been acknowledged was a

15 commander and a fierce warrior and a good soldier fighting for the freedom

16 of his country will not be convicted on rumour and speculation. Because

17 when you examine the evidence, Your Honours, the identifications suggested

18 by the Prosecution upon which you should rely are unsafe or non-existent.

19 I think you well know where Idriz Balaj has been since 2002. He

20 suffered, and survived, an assassination attempt. His wife lost her leg,

21 they lost a child. As you know, he came here from being in prison in

22 Kosovo and he continues to serve that sentence.

23 I've never been in quite this particular position in defending a

24 man where -- and I know I've done a lot of jury trials and jury trials are

25 really quite different than the trial that we have here. But I have never

Page 11245

1 been confronted with so much rumour, so much speculation, and so little

2 proof upon which the Prosecution relies in order to obtain a conviction.

3 They have failed to prove their case against Idriz Balaj; an examination

4 of this record will show that. I have no doubt that you will go through

5 the record with a fine-tooth comb. I have no doubt that you will subject

6 it to great scrutiny, and I have no doubt that you will not fall victim to

7 the Prosecution's suggestions that you can find a man guilty based on

8 assumption, conjecture, or speculation, and most assuredly not based upon

9 the fact that they're bad rumours.

10 JUDGE ORIE: Thank you, Mr. Guy-Smith.

11 Mr. Harvey, are you ready to proceed?

12 MR. HARVEY: Your Honours, we listened carefully to Mr. Re this

13 afternoon. We believe the points we made yesterday stand intact today.

14 We have nothing to add and we stand upon the case we have submitted to

15 you. On the issue of character, Lahi Brahimaj is a war hero not a war

16 criminal. Thank you.

17 JUDGE ORIE: Thank you, Mr. Harvey.

18 [Trial Chamber confers]

19 JUDGE ORIE: The Chamber prefers to have a break before we put

20 further questions to the parties, but there's one matter, Mr. Emmerson.

21 You said the Chamber raised the issue of character. As a matter of fact,

22 I did not raise the issue of character, I raised the issue of aggravating

23 or mitigating circumstances.

24 MR. EMMERSON: Yes, Your Honour did mention that.

25 JUDGE ORIE: I understand from your answer that the two character,

Page 11246

1 as you call them, references that you want to rely upon them in the

2 context of sentencing if it ever comes to that?

3 MR. EMMERSON: I think we made it reasonably clear in the brief

4 that that is the purpose.

5 JUDGE ORIE: Yes. Where you say, I reserve the right to respond

6 to your oral submissions and then we rely, whether you explicitly would

7 have to do that or whether it's implied. Then I understand this to be

8 then invoking more or less post-indictment attitude and conduct which

9 would serve as a mitigating circumstance?

10 MR. EMMERSON: As I indicated, both of these witnesses were

11 witnesses who dealt with Mr. Haradinaj --

12 JUDGE ORIE: I'm just trying to characterize more or less in the

13 framework of our case law. And for you, Mr. Harvey, that's of course a

14 bit different. Where you talked about character, you characterized the

15 person as a whole and not -- and as a matter of fact what you did is you

16 referred to the time-frame in which the crimes as alleged are placed?

17 MR. HARVEY: Thank you, Your Honour. I did so because I believe

18 that the Trial Chamber is already in full possession of all of the

19 information you need concerning my client's character and conduct

20 throughout these proceedings, his respect for this Tribunal, and his

21 compliance with all of its requirements. And I think you know his family

22 background. I don't think that there's anything that I can add to the sum

23 of your knowledge in that respect.

24 JUDGE ORIE: That's now clear on the record what type of

25 mitigating circumstances because I understand that your reference to the

Page 11247

1 two letters to be invoking those mitigating circumstances. Now it's clear

2 for me as well what in I would say a one-liner was comprised as mitigating

3 circumstances.

4 MR. HARVEY: I've always tried to be brief.


6 MR. EMMERSON: Just so that we might make best possible use of the

7 break if there are any matters on which it would be helpful for us to

8 conduct research in respect of questions that the Trial Chamber might put

9 to us and any message that might be sent out through the registry in the

10 meantime.

11 JUDGE ORIE: I don't think so as a matter of fact. We'll then use

12 the next 20 minutes to see whether the questions we had in mind need to be

13 completed or adjusted.

14 We'll resume at 25 minutes to 6.00.

15 --- Recess taken at 5.13 p.m.

16 --- On resuming at 5.38 p.m.

17 JUDGE ORIE: Before the Chamber -- the Judges will put questions

18 to the parties, I'd like to deal with two procedural matters, the one that

19 could not possibly affect the trial but nevertheless ready as ready, that

20 is a direction to the registrar to make certain sections of Fadil Fazliu's

21 evidence public. I think I raised the matter last Monday.

22 The Chamber has received submissions by all parties on the

23 sections of Fadil Fazliu's evidence which were heard in private session

24 and which the Chamber proposes to make public. The only party to provide

25 any objection was the Prosecution, which submitted that certain sections

Page 11248

1 if made public could identify protected witnesses or reveal contact

2 between the Prosecution and intended witnesses. The Chamber has reviewed

3 the submissions of the Prosecution and agrees not to make those sections

4 public.

5 The registrar is therefore ordered to make public the following

6 sections of the transcript: Page 7415, line 6, to page 7425, line 13;

7 page 7427, line 24, to page 7445, line 15; page 7452, line 19, to page

8 7456, line 2; page 7456, line 5, to page 7471, line 16; page 7471, line

9 20, to page 7473, line 5 -- 6, line 6; page 7484, line 7, to page 7486,

10 line 4; page 7486, line 23, to page 7487, line 23; page 7488, line 16, to

11 page 7499, line 24; page 7509, line 15, to page 7513, line 4; page 7515,

12 line 12, to page 7531, line 8.

13 This concludes the order to the registrar.

14 [Trial Chamber confers]

15 JUDGE ORIE: The second matter I would like to raise is the

16 following. The Balaj Defence filed on the 30th of October Idriz Balaj's

17 citation of prosecutoral violation of ethical code of conduct and requests

18 for evidentiary hearing regarding interview of Carla del Ponte. The

19 Brahimaj Defence joined in this request. The Chamber denies the request

20 and a written version with full reasons will follow soon.

21 As far as the Chamber is aware, there is no motion or request

22 pending at this moment which could possibly have any impact on the

23 judgement that the Chamber will deliver. If the Chamber oversees

24 something, then of course it would like to know. Nothing there --

25 MR. GUY-SMITH: Your Honour.

Page 11249


2 MR. GUY-SMITH: There may be one matter I think at one point we

3 had asked for an exhibit number for a particular document and I need to go

4 back and double-check to make sure, but I'll double-check and get back to

5 you.

6 JUDGE ORIE: Well --

7 MR. GUY-SMITH: I don't think it will affect --

8 JUDGE ORIE: If we need just an exhibit number, then of course

9 that's a technicality --

10 MR. GUY-SMITH: Right.

11 JUDGE ORIE: But it could have no impact on decision-making.


13 JUDGE ORIE: By the way, Mr. Re, earlier today Mr. Emmerson

14 referred to an exhibit for which he said there was no official translation

15 uploaded into e-court. Now, I do not think that any of the Defence

16 counsel where they said that they had their own translation of this

17 document, I take it you shared that with the others, Mr. Emmerson?

18 MR. EMMERSON: Well, I'm not entirely sure whether we have shared

19 it with the others, in fact --

20 JUDGE ORIE: But you would do that, I take it, then?

21 MR. EMMERSON: Absolutely.

22 JUDGE ORIE: Because of course in e-court, Mr. Re, we have no

23 official translation, there's even no translation at all in e-court at

24 this moment, so I tried to verify it to follow the words of Mr. Emmerson,

25 but I had difficulties in -- Mr. Emmerson said there was a provisional

Page 11250

1 translation -- I take it that that is something that the official

2 translation will be uploaded. May I also take it that the Defence is not

3 in any way prejudiced by looking at that translation once it is uploaded?

4 And that's of course the translation the Chamber will then look at.

5 That's first. Of course if there's any problem with the translation,

6 which is a technical matter, it's not a matter of opinion, but -- well,

7 it's a matter of providing the Chamber with an official translation which

8 is not challenged by any of the parties. Such a challenge, which again

9 could have no impact on the decision -- of course a wrong translation

10 could, but challenging the translation as such could not have an impact on

11 any determination the Chamber will have to make.

12 So I take it that the parties would agree that they will be

13 informed once the official translation is uploaded; and if there's any

14 problem with the translation as such, which is a linguistical, technical

15 matter, that the Chamber will deal with that and hear, if there are any,

16 hear the complaints and then of course the usual way will be followed,

17 that is that CLSS, of course, will comment on it, and that we finally will

18 all be provided with a translation which serves us.

19 Yes, Mr. Emmerson.

20 MR. EMMERSON: Your Honour asked about outstanding motions.


22 MR. EMMERSON: They're not strictly speaking an outstanding

23 motion. The Trial Chamber issued a request on the 5th of December to the

24 Prosecution in respect of the Swiss conviction of Avni Krasniqi.


Page 11251

1 MR. EMMERSON: We've made certain submissions in our closing brief

2 about the approach the Trial Chamber should take in relation to assessing

3 Avni Krasniqi's credibility as regards that conviction. Those submissions

4 obviously stand unless or until the Swiss judgement is obtained, and if

5 and when it is obtained, it may be that further submissions at that stage

6 would need to be made upon it; but at the moment --

7 JUDGE ORIE: I take it that then it could be brief written

8 submissions rather than anything else.

9 MR. EMMERSON: Yes, absolutely.

10 JUDGE ORIE: Yes, we cannot take action on it at this moment

11 further.

12 Then ...

13 [Trial Chamber confers]

14 JUDGE ORIE: I invite my fellow Judges to put questions to the

15 parties.

16 JUDGE HOEPFEL: Yes, I would like to pose two questions to the

17 Prosecution. They have to do first with the definition of a collaborator;

18 and then second with the alleged rape which is referred to in the last two

19 counts of the indictment. As to the first one, what is the Prosecution's

20 understanding of the term "collaborator" as used throughout the

21 indictment? Do you consider these persons as civilians or as taking part

22 in hostilities? That is the first question.

23 MR. RE: Well, the Prosecution's view is that the collaborators as

24 defined and as our case has unfolded, everyone within what is understood

25 to be within that meaning was a civilian. I appreciate the distinction

Page 11252

1 under the Geneva Conventions and the treatment, but the people who the KLA

2 targeted as perceived collaborators were civilians who were taking no

3 active part in hostilities, they were just simply not members of the

4 military of the opposing side. They were civilians perceived not to be

5 supporting the KLA. So in that sense, it's a wider definition that we've

6 used.

7 JUDGE HOEPFEL: Thank you. That had been raised by Mr. Emmerson

8 and I would have expected to hear a response to that and so this is now

9 clear.

10 And as to this rape, you spoke of patterns of attacks against a

11 civilian population. Do you consider the alleged rape part of such an

12 attack? Could you respond, please, both in terms of crimes against

13 humanity and war crimes, apart from the geographical and temporal

14 proximity to armed conflict.

15 MR. RE: Well, absolutely yes. The crimes against civilians as

16 part of the crimes against humanity, all of course committed against a

17 civilian population, were many and varied and numerous, torture, cruel

18 treatment, inhumane acts, forcible displacement, and rape. It falls

19 within the pattern of attacks against civilians who the KLA or members of

20 the joint criminal enterprise were targeting, were in their target group

21 as part of the civilian population. The rape is just yet another crime

22 committed in the context of the war against civilians, yes.

23 JUDGE HOEPFEL: Thank --

24 MR. RE: Have I answered your question? I'm not quite sure if I'm

25 going where you want me to go.

Page 11253

1 JUDGE HOEPFEL: Thank you.

2 JUDGE ORIE: Mr. Re, I have one follow-up question to a question

3 put to you by Judge Hoepfel. I'm referring to Counts 21 and 22,

4 Rade Popadic. I leave a part at this moment, and that seems to be a

5 matter which is in dispute, whether Rade Popadic was killed in a combat or

6 combat-like activity, at least in an exchange of fire or at least firing

7 at the car when he was still in it or still driving, or that seems to be

8 the Prosecution's case that he was killed not when stopped or abducted, we

9 do not know much about that, but at least that he was as the indictment

10 says he was subsequently killed while in KLA custody, that means that he

11 was taken into custody.

12 Now, could you perhaps expand on your -- was he -- for the --

13 let's just for argument sake first limit ourselves to a scenario where the

14 car he was driving in was shot at or at least was stopped prior to the

15 abduction by members of the KLA. Was he at that moment, was he a

16 collaborator? Was he a -- was he a civilian? Was he -- could you expand

17 on his situation during this first part of the episode in your view.

18 MR. RE: We put our case in relation to Rade Popadic as an

19 attack -- as part of an attack against a civilian population if he were

20 tortured and murdered after his capture or his --

21 JUDGE ORIE: Yes, but I'm asking you now to limit yourself first

22 to that first part of the episode. I might put questions to you on the

23 follow-up as alleged by the Prosecution. But --

24 MR. RE: But that's our case. We don't say he was a collaborator.

25 He was a member of the Serbian forces. He was a member of the PJP on

Page 11254

1 active duty. He was carrying food from Gjakove to the base in Junik, and

2 disappeared en route --

3 JUDGE ORIE: Yes --

4 MR. RE: And he was clearly a member of the opposing force at the

5 time.


7 MR. RE: He wasn't a collaborator, no. For the purposes of what

8 happened to him en route as a combatant of course he was a legitimate

9 target of an attack by the opposing force such as the KLA, but he

10 wasn't -- wasn't legitimate to murder or mistreating after capture. And

11 to put it on a dual basis after capture, he was a civilian within the

12 broader definition of a civilian under Article 5 or alternatively

13 simply --

14 JUDGE ORIE: You would say that -- you are saying that an attack

15 against a civilian population may hit non-civilians as well?

16 MR. RE: The argument we've put is best -- yes -- well, it's best

17 put out in the response the Prosecution has filed in the Mrksic appeal

18 where we have appealed against the finding in relation to the Vukovar

19 Hospital about who was a civilian for the purposes of an attack on a

20 civilian population, and our argument is the Trial Chamber was wrong in

21 law and someone who is hors de combat may if they are tied up in the

22 attack for the purposes of Article 5 be treated as a civilian. And our

23 submission is Rade Popadic falls squarely within the definition of the

24 argument within Mrksic. We're saying Mrksic is wrong, but if the

25 Trial Chamber takes -- follows the same line as the Mrksic Trial Chamber

Page 11255

1 does, you'll -- you would have to accept the alternative argument of it

2 being a breach of the laws and conventions of war under Article 3.

3 JUDGE ORIE: Now, the language of abduction is one as if it would

4 be something illegal. Now, the, as you called it, the abduction of

5 Popadic, you could also -- could you say he was taken prisoner of war in

6 this armed conflict belonging to the armed forces of the opposite ...

7 MR. RE: Yes. Yes. We put the case that he was a member of the

8 armed -- the opposing armed forces, but once taken prisoner -- I mean,

9 it's described I think more colloquially as an abduction, but once he's

10 captured and taken and imprisoned, clearly all the conventions and the

11 laws of war of the Geneva Conventions applied to his captivity, and our

12 case is they weren't. But I mean we say for the present purposes he

13 should be treated as a civilian under Article 5 as he was at that point

14 hors de combat.

15 JUDGE ORIE: I'm looking at paragraph 26 of the indictment and I'm

16 looking at the common criminal purpose with the consolidated total control

17 and then by several crimes mentioned, that is, mistreatment of several

18 categories of civilians and other civilians who were or were perceived to

19 have been collaborators with the Serbian forces or otherwise not

20 supporting the KLA and it also involved the commission of crimes against

21 humanity. So you would say murder of a prisoner of war would fall within

22 these categories?

23 MR. RE: It certainly falls within the next line which says: "The

24 JCE included the establishment and operation of KLA detention facilities

25 and the mistreatment of detained persons at these facilities, including at

Page 11256

1 the KLA's headquarters at Jabllanice and Gllogjan and the Black Eagles

2 headquarters."

3 So yes, if someone has been captured and mistreated and murdered,

4 it certainly falls well within the purpose of the common criminal purpose

5 as pleaded.

6 JUDGE ORIE: Yes, although it's limited to the Gllogjan and the

7 Jabllanice detention facilities, isn't it?

8 MR. RE: It says "included." It's open to the Trial Chamber to

9 find that they were within the KLA's or members of the joint criminal

10 enterprise's captive -- custody at the time of murder.

11 JUDGE ORIE: Yes. Thank you for those answers.

12 I have another question and I would rather -- it relates to the

13 KLA/FARK issue, and perhaps I best put the question in the context of an

14 example. It's the Prosecution's case that the Frrokajs were abducted and

15 killed late in August. Now, in that period of time the evidence suggests

16 that Tahir Zemaj had taken over command, overall command of the area.

17 Would that have any consequences, whereas as it is understood by

18 Mr. Emmerson that you exclude FARK soldiers and FARK officers from

19 participating in the joint criminal enterprise and that the KLA command

20 was separate from FARK command. Now, in that situation - and I'm now

21 focusing on the Frrokaj issue, Tahir Zemaj being appointed as an overall

22 commander from what I understand including all the KLA armed forces, would

23 this have any consequences for KLA being alleged to have abducted and

24 being responsible for killing the Frrokajs?

25 MR. RE: Not at all. The FARK wasn't part of this joint criminal

Page 11257

1 enterprise or the common criminal purpose. The evidence of Witness 17 is

2 quite clear on this purpose -- on this point about their reluctance to

3 have anything to do with it and the fact that they wanted to impose

4 military discipline on those particular forces went to a whole range of

5 things through the way that it was organized to the salutes that were

6 employed, a fist versus a normal military salute. It's not -- FARK plays

7 no part in it. Witness 17's evidence is quite clear about the complaints

8 made at the time of people within the -- of the KLA behaviour to

9 Tahir Zemaj. The whole thing about the meeting at Prapaqan and the remark

10 about the fish getting fat in the lake. But most importantly the evidence

11 establishes that Gllogjan was firmly in the control of Ramush Haradinaj at

12 the time, and that's where we say we've proved the Frrokajs disappeared

13 from, as we -- as I argued earlier. There were check-points in and out.

14 The only way in and out is through the check-points or alternatively down

15 the road leading to the lake. So it was an area under KLA, that is,

16 Ramush Haradinaj's command and control at the time.

17 JUDGE ORIE: Well, would you say that taking over the overall

18 command would not include, at least formally, the areas which were under

19 Ramush Haradinaj's command? Because isn't it true that Tahir Zemaj had

20 taken over the command from Haradinaj or exercised the command, at least

21 that's what some of the documents seem to suggest, that exercised that

22 command prior to that?

23 MR. RE: Our case has been, and in my submission the evidence

24 establishes that there was a parallel command existing at all relevant

25 times after the FARK arrived and our argument is that although Haradinaj

Page 11258

1 handed over "control" to Tahir Zemaj for that period, it was in effect a

2 political exercise which did not last and was not intended to last and

3 FARK shortly after left the zone for reasons which we've set out in our

4 brief. They were not part of the joint criminal enterprise. The formal

5 command did not, if you put Tahir Zemaj in the top of it even for several

6 weeks in August, did not need to play any part in the common criminal

7 purpose. It was not his area. Where the Frrokajs disappeared was well

8 within Ramush Haradinaj's geographical area of control and command, next

9 to Idriz Balaj's Black Eagles' territory or training-ground under their

10 control. The evidence is quite clear on the dispute between FARK and

11 Idriz Balaj with personal confrontations between Tahir Zemaj and

12 Witness 17. So in our submission it makes no difference whatever the

13 "formal" position of Tahir Zemaj was at the time, if he was not part of

14 this more horizontal, as Mr. Emmerson put it, joint criminal enterprise

15 then existing.

16 JUDGE ORIE: Yes, you would say it was handing over de jure the

17 command but not de facto?

18 MR. RE: In essence, yes.

19 JUDGE ORIE: I have no further questions to you at this moment.

20 JUDGE STOLE: One question for the Prosecution or invitation to

21 elaborate a little bit more. Of course this is a case on joint criminal

22 enterprise, and I have listened to what you have said about the necessity

23 for the Trial Chamber to view the evidence in context as a whole and the

24 similarities that you have dwelled upon. If you -- if one approaches the

25 evidence on the facts known, the more individual facts to each count in

Page 11259

1 the indictment, there are several categories: There are some of the

2 counts where we had evidence of more concrete character; there are a

3 category where you had evidence on abduction at different time span before

4 the recovery of the bodies or the remains; and there are a category,

5 leaving the unidentified remains aside, of identified bodies where we have

6 nothing I think apart from the fact or the information that these

7 disappeared at a certain time and then were recovered from the

8 Lake Radoniq canal.

9 Can you explore or expand a little bit more on why, also in that

10 category, those counts covering that category, the Trial Chamber should

11 find that beyond reasonable doubt the accused should be found guilty for

12 those categories. I do understand that the JCE comes into the picture and

13 the location -- recovery at the canal is important. I wonder if you could

14 expand a little bit on that.

15 MR. RE: To find the accused participated in the joint criminal

16 enterprise and other members of the KLA shared that common criminal

17 purpose, you don't -- the Trial Chamber doesn't need to make a finding in

18 relation to each and every body. We of course cannot exclude that it is

19 possible -- they -- there could be a possibility that -- I'll put it

20 another way around.

21 The Prosecution case is that everybody there is either there as a

22 direct result of the joint criminal enterprise or is a natural and

23 foreseeable consequence of what was going on. And I say that in the sense

24 of the climate of impunity that was allowed to exist within the zone, the

25 degree of control over the zone imposed by Ramush Haradinaj and the KLA,

Page 11260

1 the fact that the canal was firmly on all reliable evidence within KLA

2 and, more specifically, the control of those controlled by Haradinaj at

3 the time, all entrances, all exits into the canal were basically

4 controlled by the KLA. You've heard evidence about the check-points. The

5 only way the bodies could have got in there was either via the

6 Black Eagles training-ground or through KLA-controlled check-points in

7 Gllogjan and down the only access road which took them into the canal

8 itself.

9 As I mentioned earlier in my submissions, if you look at the canal

10 itself as a natural mass grave site and if you look at the length of the

11 canal and if you look at the way -- and we described in our brief the way

12 that the bodies were intermingled, the people who were kidnapped basically

13 in the same order or disappeared one after the other, the classical one of

14 course is Sanije Balaj on top of the bodies of Witness 4's mother and

15 sister. If you put those things together it leads in our submission to

16 one conclusion, that there was only one group of people and that was the

17 group of people who controlled that area who was, A, letting the bodies go

18 in; and B, putting them in. It was well-known at the time amongst those

19 living that there was something going on at the canal. I mean, the fish

20 getting fat comment, the thing about going -- being taken to Gllogjan,

21 Mr. Guy-Smith said it, there were rumours, but in this case it's one where

22 the rumours actually had some real meat to it.

23 So if you look at -- and you've got to look at each of the bodies

24 individually but then put them together, where they were found in the

25 canyon, who controlled access to it, who controlled the whole area, the

Page 11261

1 similarities in death, the gun-shot wounds, the fact that it -- you could

2 conclude beyond reasonable doubt that some of them had been probably

3 executed at the wall, that's consistent with the execution bodies found

4 under the bullet-holes. Once you do that with each and every body and put

5 them all together, the Trial Chamber can find beyond reasonable doubt, it

6 can exclude any other hypothesis, any reasonable hypothesis other than

7 that they were all put there either directly or as a natural and

8 foreseeable consequence of the enterprise that allowed this to occur.

9 Even if you look at the number of bodies in an area that size, 40 bodies

10 within a geographically small area over a period of some four to five

11 months, an area controlled at the time by the KLA, and the bodies all,

12 except the unidentified ones, fitting within a clear pattern, that is,

13 collaborators, perceived collaborators and Serb civilians. And you put

14 that altogether, the number of the bodies and where they were found, our

15 submission is there is simply no other explanation for what happened.

16 Does that answer --

17 JUDGE STOLE: Yes, thank you.

18 JUDGE ORIE: Since the Chamber has no further questions ...

19 [Trial Chamber confers]

20 JUDGE ORIE: If our questions have raised any concerns with the

21 parties or any need to further address us, then of course I would like to

22 hear; but if that's not the case then this concludes this trial.

23 The Chamber will consider everything that has been put before it.

24 The Chamber will consider the evidence that was presented. The Chamber

25 will consider all the submissions made by the parties, and then it's up to

Page 11262

1 the Chamber to prepare, write, the judgement which will be delivered in

2 due course. Now, I do understand that the parties would like to know when

3 that will be. The Chamber cannot give any date nor will it limit itself

4 to certain periods, especially if this would assist you. The parties may

5 be aware that a Pre-Trial Conference has been set in the Gotovina case,

6 which as far as I can see I will preside over for the 10th of March. The

7 case to -- the trial to start on the 11th of March. If you have looked

8 carefully at the scheduling, you will also see that the case will not

9 immediately continue after the 14th of March, so that would leave some

10 time. The Chamber does not commit itself that it will not deliver a

11 judgement before the 10th of March, neither does the Chamber promise or

12 raise the expectation that a judgement will be delivered before the 10th

13 of March.

14 I'm -- I would like to express further that the parties have

15 certainly assisted the Chamber in their professional performance during

16 this trial. They certainly have assisted the Chamber far better than I

17 assisted the parties half a minute ago about when they could expect the

18 judgement in this case. It may be clear that it is important for a

19 Chamber to have the professional and committed assistance of counsel

20 because it assists the Chamber in making the determinations it has to

21 make.

22 We stand adjourned sine die and the next thing the Chamber expects

23 to deliver is a Scheduling Order for the delivery of the judgement unless

24 anything comes in between.

25 --- Whereupon the hearing adjourned

Page 11263

1 at 6.19 p.m. sine die