Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11264

1 Thursday, 3 April 2008

2 [Judgement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 4.02 p.m.

6 JUDGE ORIE: Good afternoon.

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

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

9 number IT-04-84-T, the Prosecutor versus Ramush Haradinaj et al.

10 JUDGE ORIE: Thank you, Mr. Registrar.

11 I note that the Prosecution is present, Mr. Re lead counsel

12 assisted by the other members of the team.

13 I see that Mr. Haradinaj is present, Mr. Emmerson there as lead

14 counsel is assisted by members of his team. I see Mr. Balaj to be

15 present, represented by Mr. Guy-Smith and assisted by members of his

16 team. And finally Mr. Brahimaj being present assisted by Mr. Harvey and

17 members of that Defence team.

18 The Chamber is sitting today to deliver its judgement in the case

19 of the Prosecutor versus Ramush Haradinaj, Idriz Balaj, and

20 Lahi Brahimaj.

21 For the purposes of this hearing, the Chamber will briefly

22 summarize its findings. We emphasize that this is a summary only, and

23 that the authoritative account of the Chamber's findings is to be found

24 in the written judgement, which will be made available at the end of this

25 session.

Page 11265

1 This case concerns crimes allegedly committed between the 1st of

2 March and the 30th of September, 1998, in the Dukagjin area of Kosovo.

3 This is an area in western Kosovo which encompasses the municipalities of

4 Pec, Decani, Djakovica, and parts of the municipalities of Istok and

5 Klina. It is alleged that during this period the UCK, also known as

6 Kosovo Liberation Army, and which we will refer to as the KLA, persecuted

7 and murdered Serb and Kosovar Roma civilians as well as Kosovar Albanian

8 civilians perceived to be collaborating with Serbian forces, in order to

9 consolidate total control over the Dukagjini area.

10 Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj stood trial as

11 alleged participants in a joint criminal enterprise aiming to consolidate

12 total KLA control over the Dukagjin area by the unlawful removal and

13 mistreatment of the aforementioned civilian groups. The Prosecution

14 alleges that from at least the 1st of March, 1998, until mid-June 1998,

15 Ramush Haradinaj was a de facto KLA commander in the Dukagjin area and

16 that from mid-June he became a de jure commander.

17 The Prosecution alleges that Idriz Balaj was the commander of a

18 unit within the KLA known as the Black Eagles, which operated throughout

19 the Dukagjin area. According to the indictment, as commander of the

20 Black Eagles, Idriz Balaj was directly subordinate to Ramush Haradinaj.

21 Finally, the Prosecution alleges that Lahi Brahimaj was a member

22 of the KLA General Staff stationed at the headquarters in Jablanica in

23 Djakovica municipality. According to the indictment, he was also deputy

24 commander in the Dukagjin area for a short period. The Prosecution

25 alleges that Lahi Brahimaj was subordinate to, and worked closely with,

Page 11266

1 Ramush Haradinaj.

2 Each of the three accused was also charged, in the alternative,

3 with having committed, planned, instigated, ordered, or aided and abetted

4 several of the crimes alleged in the indictment. Before summarizing its

5 findings, the Chamber would like to address a few matters related to the

6 proceedings in the present case.

7 During the trial the Chamber received evidence from almost 100

8 witnesses. Nevertheless, the Chamber encountered significant

9 difficulties in securing the testimony of a large number of these

10 witnesses. Many cited fear as a prominent reason for not wishing to

11 appear before the Chamber to give evidence. In this regard, the Chamber

12 gained a strong impression that the trial was being held in an atmosphere

13 where witnesses felt unsafe, due to a number of factors set out in the

14 judgement. The parties furthermore agreed that an unstable security

15 situation existed in Kosovo that was particularly unfavourable to

16 witnesses. As a reflection of the difficulties encountered in obtaining

17 testimony, 34 witnesses were granted certain protective measures.

18 In addition, 18 subpoenas to testify were issued for witnesses

19 who continued to refuse to testify, despite the possibility of protective

20 measures. Four subpoenas issued by the Chamber were not complied with.

21 In one of these cases, the witness concerned eventually agreed to testify

22 via a video-conference link. For two others, the Chamber confirmed

23 indictments for contempt of the Tribunal against the witnesses concerned.

24 These witnesses were arrested and transferred to The Hague. They both

25 decided to testify before the initial appearance in their contempt cases.

Page 11267

1 Following their testimonies, the indictments were withdrawn. In relation

2 to the fourth witness who defied a subpoena, Naser Lika, the Chamber

3 undertook various measures in order to obtain his testimony, including

4 extending the time allotted for the Prosecution to present its case. The

5 witness never testified.

6 Three Prosecution subpoena requests were denied by the Chamber.

7 In one case, the denied request concerned a witness who was experiencing

8 extreme emotional distress about testifying before the Tribunal. The

9 Victims and Witnesses Section of the Tribunal warned the Prosecution that

10 there were risks in using this person as a witness unless a threat

11 assessment, and other assessments, were made. The Prosecution did not

12 subsequently initiate any such assessments. Under those circumstances,

13 the Chamber found it imprudent to compel the witness's testimony.

14 Two witnesses came to the Tribunal without being subpoenaed, only

15 to refuse to testify when invited to do so. One of these witnesses,

16 Shefqet Kabashi, confirmed a few personal details, after which he refused

17 to answer any questions on the substance of the case. Consequently, the

18 Chamber issued an order in lieu of indictment for contempt of the

19 Tribunal. However, before his trial was due to start, Kabashi left the

20 Netherlands and returned to his place of residence in the United States.

21 The Chamber considered and undertook various steps to obtain his

22 evidence. The contempt case against Shefqet Kabashi is still pending his

23 arrest and transfer to The Hague.

24 One of the subpoenaed witnesses, Witness 55, began to testify but

25 claimed that he was under a great deal of stress and feared for his

Page 11268

1 safety and that he was therefore unable to complete his testimony. After

2 consultation with the Victims and Witnesses Section of the Tribunal and

3 medical examination, the Chamber concluded that it would not be in the

4 interests of justice to continue hearing Witness 55's testimony.

5 On several occasions, in order to determine the presence of a

6 person at a given time and place, the Chamber had to rely on the

7 identification evidence of a single eye-witness. The Chamber considered

8 several factors when evaluating such evidence, such as identification by

9 a witness who only had a fleeting glance or an obstructed view of a

10 person; sighting occurring in the dark; sighting during a traumatic event

11 experienced by a witness; and the possibility of a witness's delayed

12 assertion of memory of the presence of a person.

13 The Chamber will now give a summary of its findings, starting

14 with the general elements of war crimes and crimes against humanity.

15 With regard to the general elements of war crimes, the Chamber

16 received a great deal of evidence relevant to the existence of an armed

17 conflict in Kosovo between the KLA and Serbian forces. The clashes at

18 the Ahmeti, Jashari, and Haradinaj family compounds between late February

19 and late March 1998 were particularly violent yet isolated events,

20 followed by periods of relative calm. The evidence shows that the

21 conflict reached the requisite level of intensity on the 22nd of April,

22 1998, when frequent shelling was taking place in Decani municipality,

23 civilians were fleeing from the country-side, the KLA was clashing with

24 Serbian forces, and the Yugoslav Army was participating in combat and, on

25 a large scale, deploying on the ground.

Page 11269

1 By the 22nd of April, 1998, the KLA qualified as an organized

2 armed group capable of entering into armed conflict with the Serbian

3 forces. It had recruited many members or volunteers, provided training,

4 and developed a rudimentary military structure. It controlled a

5 considerable amount of territory, ran supply routes for obtaining weapons

6 and other equipment, used guerilla tactics, and issued communiques in its

7 name. On the basis of the evidence before it, the Chamber found that an

8 armed conflict existed in Kosovo from and including the 22nd of April,

9 1998, onwards; that is to say before the material facts charged in each

10 count of the indictment with the exception of Counts 3 and 4.

11 With regards to the general elements of crimes against humanity,

12 the Prosecution alleges that there was a widespread or systematic attack

13 by the KLA directed against part of the civilian population in the

14 Decani, Pec, Djakovica, Istok, and Klina municipalities of Kosovo. That

15 part consisted of the Serb civilian population in these municipalities as

16 well as civilians perceived to be collaborating with the Serbs or

17 otherwise not supporting the KLA. The Prosecution's case with respect to

18 the alleged attack was, to a large extent, based on the evidence adduced

19 under individual counts. This evidence did not always allow the Chamber

20 to conclude whether a crime was committed or whether the KLA was involved

21 as alleged. The evidence on some of the other counts indicated that the

22 victims may have been targeted primarily for reasons pertaining to them

23 individually rather than as members as a civilian population under

24 attack. These counts were not taken into consideration when determining

25 whether there was an attack against a civilian population.

Page 11270

1 In addition to the evidence on individual counts in the

2 indictment, the Chamber heard some evidence relating to whether there was

3 an attack against a civilian population. Much of this evidence concerned

4 Serbs leaving their homes during the indictment period. The Chamber is

5 convinced that many Serbs left their homes out of fear of being

6 deliberately attacked by the KLA, or out of a general fear of being

7 caught up in the developing armed conflict, rather than because they were

8 being directly targeted by the KLA. Indeed, Kosovar Albanians also fled

9 from their homes during the indictment period. The Chamber could not,

10 therefore, draw any general conclusions with regard to the alleged attack

11 against the civilian population from the mere fact that many Serb

12 civilians left their homes during this period. As for assaults against

13 non-Albanians during the indictment period, the evidence was often

14 insufficiently precise to conclude who was or were responsible for those

15 assaults and whether they formed part of a larger attack against a

16 civilian population.

17 The Chamber found that the ill-treatment, forcible transfer, and

18 killing of Serb and Roma civilians, as well as Kosovar Albanian civilians

19 perceived to be collaborators or to be unsupportive of the KLA, were not

20 on a scale or of a frequency that would allow for a conclusion that there

21 was an attack against a civilian population. As the general elements of

22 crimes against humanity therefore have not been met, the Chamber will

23 acquit all three accused of all counts alleging crimes against humanity.

24 The Chamber will now address the charges of violations of the

25 laws or customs of war. The Chamber heard evidence covering the alleged

Page 11271

1 murder, torture, rape, and cruel treatment charged under 19 counts.

2 Having considered the evidence presented on individual counts of

3 the indictment, the Chamber found that a large number of alleged crimes

4 were committed by KLA soldiers or persons affiliated with the KLA. These

5 crimes included, in particular, the ill-treatment of persons detained in

6 the Jablanica compound. The Chamber found that KLA soldiers in the

7 compound, or persons affiliated with the KLA, severely beat Witness 6,

8 Nenad Remistar, Pal Krasniqi, Skender Kuci, Witness 3, three unidentified

9 Montenegrin men, and one unidentified Bosnian man. The ill-treatment of

10 these persons amounted to cruel treatment and, in several cases, torture.

11 The Chamber also found to two of these individuals, Skender Kuci and Pal

12 Krasniqi, died as a result of the ill-treatment.

13 The Chamber found that KLA soldiers interrogated and ill-treated

14 Novak Stijovic and Stanisa Radosevic outside Glodjane in April 1998,

15 after the two men had been stopped at a KLA check-point. The Chamber

16 also found that a KLA soldier raped Witness 61 in the KLA headquarters in

17 Rznic sometime in the summer of 1998. The ill-treatment of these persons

18 amounted to both cruel treatment and torture.

19 The Prosecution had charged the three accused with 30 murders

20 where the victims' remains were found in the Radonjic canal area. The

21 Chamber found, however, that only seven of these murders could be proven

22 beyond a reasonable doubt and were committed by KLA soldiers. These were

23 the murders of Zenun Gashi, Nurije Krasniqi, Istref Krasniqi,

24 Sanije Balaj, and the mother and the two sisters of Witnesses 4 and 19.

25 The evidence presented with regard to the perpetrators and

Page 11272

1 circumstances of the remaining alleged murders was vague, inconclusive,

2 or non-existent. In relation to many of the victims, the Chamber

3 received evidence merely about where and when they were last seen alive

4 and about them being found dead in the Radonjic canal area. The victims

5 were last seen alive at different locations in three municipalities over

6 a period of five months. Many of them were last seen alive in areas

7 which were under KLA control at the time. The control the KLA exercised

8 over the Radonjic canal area was considerable but not complete in every

9 respect during the indictment period. This raises the likelihood that

10 the KLA abducted the victims and either killed them and deposited their

11 bodies in the Radonjic canal area or took the victims to this area and

12 executed them there.

13 The Chamber has considered the ballistics evidence which the

14 Prosecution presented in support of its allegation that a weapon fired in

15 the Radonjic canal area was also fired by the KLA on two other occasions,

16 one of which was the clash at the Haradinaj family compound on the 24th

17 of March, 1998. Some imprecision in this evidence and the impossibility

18 of verifying it led the Chamber to decide that it could not rely on this

19 evidence. Furthermore, it could not have answered important questions

20 such as who had fired that weapon, when it was fired in the Radonjic

21 canal area, and what the chain of custody of that weapon had been.

22 For only one of the victims found in the Radonjic canal area,

23 Sanije Balaj, the Chamber received extensive evidence about the

24 perpetrators of and the circumstances surrounding the murder. The case

25 of this victim demonstrated the level of caution with which the Chamber

Page 11273

1 had to proceed when considering inferences as to responsibility merely on

2 the basis of the disappearance or abduction of a person and the discovery

3 of the remains of that person in the Radonjic canal area.

4 On the face of it, all the elements appear to be present: An

5 arrest by KLA soldiers; the inclusion of Sanije Balaj on what seems to

6 have been a wanted list, used by that soldiers; transportation to, and

7 interrogation in, a KLA headquarters; retrieval of the bodily remains in

8 the Radonjic canal area; and forensic medical evidence of a violent

9 death. At first sight this would make it among the strongest cases from

10 which the Chamber could draw inferences about murders committed in KLA

11 custody. However, in this case, the detailed evidence about the

12 circumstances of Sanije Balaj's death revealed that the apparently

13 obvious conclusions would have been the wrong conclusions. For example,

14 the Chamber heard evidence that a KLA commander ordered Sanije Balaj's

15 release. She was carrying a large amount of money, and the KLA soldier

16 who murdered her was aware of this. Sanije Balaj was not killed on KLA

17 premises or in the vicinity of the Radonjic canal area. Additionally, a

18 number of witnesses testified about a KLA investigation into the murder.

19 Considering all the evidence with regard to this murder, the Chamber

20 found that a reasonable alternative to KLA involvement as charged in the

21 murder was that Sanije Balaj could have been targeted by people who were

22 not acting under the direction of or in pursuit of the policies of the

23 KLA, and that she may not have been killed while in the custody of the

24 KLA.

25 The Chamber received less evidence for most of the other alleged

Page 11274

1 murders where the victims' remains were found in the Radonjic canal area.

2 In some instances, nothing was known about the circumstances in which the

3 victim disappeared. Some remains found in the Radonjic canal area were

4 not identified. Even those murders for which the Chamber received ample

5 evidence could not consistently be attributed to the KLA. Consequently,

6 the Chamber could not draw conclusions of a more general nature from the

7 fact that victims were found in the Radonjic canal area, as to who

8 committed the killings and with which group, if any, the perpetrator was

9 affiliated.

10 In conclusion, the Chamber found that KLA soldiers committed acts

11 of cruel treatment, torture, rape, and murder as charged in Count 6;

12 Count 14; Count 20; Count 22, but only with regard to the murder of

13 Nurije and Istref Krasniqi and the murder of Sanije Balaj; Count 28;

14 Count 30; Count 32; and Counts 36 and 37, but only with regard to Witness

15 61.

16 As mentioned, the Prosecution charged all three accused with

17 these crimes as participants in a joint criminal enterprise. The

18 objective of this alleged joint criminal enterprise was to consolidate

19 control, total KLA control, over the Dukagjin area by the unlawful

20 removal and mistreatment of Serb civilians and by the mistreatment of

21 Kosovar Albanian and Kosovar Roma civilians, and other civilians who were

22 or were perceived to have been collaborators with the Serbian forces or

23 otherwise not supporting the KLA.

24 The Prosecution presented little direct evidence with regard to

25 the alleged common criminal objective. The Prosecution instead asked the

Page 11275

1 Chamber to infer from circumstantial evidence, principally from evidence

2 on crimes committed by KLA soldiers, that there existed a joint criminal

3 enterprise. With regard to the murder of Sanije Balaj, the Chamber

4 concluded, as mentioned previously, that there existed reasonable

5 alternatives to the Prosecution's theory.

6 Although the events in the Jablanica compound appear to indicate

7 that crimes were -- that the crimes committed there were carried out in a

8 systematic way, the Chamber nevertheless found that the evidence before

9 it was insufficient to infer the existence of the common criminal

10 objective, which one or more of the accused shared with other

11 participants in the alleged joint criminal enterprise.

12 In conclusion, considering both the direct and the circumstantial

13 evidence, the Chamber was not convinced beyond a reasonable doubt that

14 the three accused participated in a joint criminal enterprise, as

15 charged.

16 All the accused were charged, in the alternative, with having

17 committed, planned, instigated, ordered, or aided and abetted many of the

18 crimes.

19 For only two of the counts the Chamber received sufficient

20 evidence to be convinced beyond a reasonable doubt as to the individual

21 criminal responsibility of one of the accused, Lahi Brahimaj. The

22 Chamber will now give a summary of its findings for these counts.

23 Under Count 28, the Prosecution alleged that on or about the 13th

24 of June, 1998, KLA soldiers arrested Witness 6 after searching his car

25 and finding a gun. According to the indictment, Witness 6 was

Page 11276

1 subsequently detained at the Jablanica compound where he was regularly

2 beaten by KLA soldiers, including Lahi Brahimaj.

3 Based on the evidence presented, the Chamber is convinced that

4 Witness 6 was detained at the Jablanica compound for around six weeks,

5 starting on or about the 13th of June, 1998. During approximately the

6 first four of these weeks, he was regularly beaten by KLA soldiers

7 causing serious physical suffering and injury, and resulting in lasting

8 physical consequences. Additionally, Witness 7 and Witness 16 testified

9 that a commander at the compound told them that Witness 6 had been

10 convicted or sentenced. The commander spoke angrily against President

11 Rugova and those who did not fight. Witness 6 himself testified that

12 when he was released, he received a written decision from Nazmi Brahimaj

13 stating that if Witness 6 repeated his mistake, he would be prosecuted.

14 On the basis of this evidence, the Chamber is convinced that KLA soldiers

15 mistreated Witness 6 to punish him. For these reasons, the Chamber

16 concludes that Witness 6 was a victim of cruel treatment and torture

17 committed by KLA soldiers or persons affiliated with the KLA.

18 Witness 6 testified that Lahi Brahimaj participated in some of

19 his beatings and was sometimes present while others beat him. Witness 6

20 also testified that Lahi Brahimaj was among those who accused him of

21 associating with and spying for the Serbs. Witness 6 had ample

22 opportunity to observe Lahi Brahimaj throughout the approximately four

23 weeks during which he was beaten. Furthermore, Witness 6 testified that

24 during the following couple of weeks he repeatedly observed

25 Lahi Brahimaj at the Jablanica compound. Witness 6 heard others address

Page 11277

1 him as Lahi or Maxhup and learned that Maxhup was Lahi Brahimaj's

2 nickname. Witness 6 later recognised Lahi Brahimaj on a Prosecution

3 photoboard. Based on the evidence as a whole, the Chamber, therefore, is

4 convinced that Lahi Brahimaj personally participated in the cruel

5 treatment and torture of Witness 6, and concludes that he should be

6 convicted for having committed these crimes.

7 Under Count 32, the Prosecution alleged that in July 1998,

8 Witness 3 was detained at the Jablanica KLA headquarters and submitted to

9 severe beatings by the KLA.

10 The Chamber is convinced that Witness 3 was subject to beatings

11 by KLA soldiers or persons affiliated with the KLA, which caused him

12 serious physical suffering, and that the perpetrators intended to cause

13 such suffering. The Chamber is also convinced that the beatings of

14 Witness 3 were aimed at punishing him for withholding a weapon and

15 discriminating against him on the basis of his perceived ties to the

16 Serbs. For these reasons, the Chamber is convinced beyond a reasonable

17 doubt that KLA soldiers or persons affiliated with the KLA committed

18 cruel treatment and torture against Witness 3.

19 Furthermore, the evidence establishes beyond a reasonable doubt

20 that Lahi Brahimaj left Witness 3 in a room in the Jablanica compound in

21 which KLA soldiers, or persons affiliated with the KLA, arrived shortly

22 thereafter and beat Witness 3 with baseball bats. The evidence also

23 established beyond a reasonable doubt that, on another occasion,

24 Lahi Brahimaj interrogated Witness 3, accusing him of supporting the

25 Serbian police and withholding an automatic weapon. During this same

Page 11278

1 occasion Lahi Brahimaj told two women who were present and dressed in

2 black uniforms to practice on him. These women then beat Witness 3.

3 The Chamber found that Lahi Brahimaj's role in the

4 interrogations, as well as his position of authority, established his

5 intent to inflict serious physical suffering on Witness 3 for the purpose

6 of punishing him for withholding a weapon and discriminating against him

7 on the basis of his perceived ties to the Serbs. For these reasons, the

8 Chamber concludes that Lahi Brahimaj should be convicted for having

9 committed cruel treatment and torture under Count 32.

10 For the other crimes committed under Counts 6, 20, 30, 36, and

11 37, the Chamber found that insufficient evidence was advanced by the

12 Prosecution to hold any of the accused criminally liable.

13 Count 14 charged Idriz Balaj with committing, planning,

14 instigating, or aiding and abetting the commission of the murders of the

15 mother and the two sisters of Witnesses 4 and 19. The majority found

16 that there was no evidence that he knowingly contributed to or

17 facilitated the commission of any of the murders, noting in particular

18 the absence of evidence that he was aware at the time that these murders

19 were or would be committed. Judge Hoepfel dissents as to Idriz Balaj's

20 criminal liability for aiding and abetting the commission of the murder

21 of sister "S."

22 Having summarized its findings, the Chamber will now give its

23 verdict.

24 Mr. Haradinaj, would you please stand.

25 [The Accused Haradinaj stands up]

Page 11279

1 JUDGE ORIE: I just asked Mr. Haradinaj. I'll invite you to

2 stand, Mr. Balaj, Mr. Brahimaj, at a later stage.

3 For the reasons summarized above, this Chamber, having considered

4 all of the evidence and the arguments of the parties, the Statute, and

5 the Rules, and based upon the factual and legal findings as determined in

6 the judgement, the Chamber finds you, Mr. Haradinaj, not guilty, and

7 therefore acquits you of all counts -- could I have quiet,

8 please - acquits you of all counts against you in the indictment. The

9 Chamber orders that you will be immediately released from the United

10 Nations Detention Unit after the necessary practical arrangements are

11 made.

12 You may be seated.

13 [The Accused Haradinaj sits down]

14 The public is invited not to disturb the pronouncing of this

15 judgement.

16 Mr. Balaj, would you please stand.

17 [The Accused Balaj stands up]

18 JUDGE ORIE: For the reasons summarized above, having considered

19 all of the evidence and the arguments of the parties, the Statute, and

20 the Rules, and based upon the factual and legal findings as determined in

21 the judgement, the majority finds you not guilty, Judge Hoepfel

22 dissenting, and therefore acquits you of all counts against you in the

23 indictment. The Chamber orders that you be released from the United

24 Nations Detention Unit after the necessary practical arrangements are

25 made for your transfer to the authorities competent for the enforcement

Page 11280

1 of the sentence you were serving at the time of your transfer to the seat

2 of the Tribunal.

3 You may be seated.

4 [The Accused Balaj sits down]

5 Mr. Brahimaj, would you please stand.

6 [The Accused Brahimaj stands up]

7 JUDGE ORIE: For the reasons summarized above, this Chamber,

8 having considered all of the evidence and the arguments of the parties,

9 the Statute, and the Rules, and based upon the factual and legal findings

10 as determined in the judgement, finds you guilty of the following

11 charges: Under Count 28, cruel treatment and torture as violations of

12 the laws or customs of war, under Article 3 of the Statute, committed

13 against Witness 6; under Count 32, cruel treatment and torture as

14 violations of the laws or customs of war, under Article 3 of the Statute,

15 to the extent the crimes were committed against Witness 3. Your

16 responsibility for the above crimes is pursuant to Article 7(1) of the

17 Tribunal's Statute. The Chamber finds you not guilty on the remaining

18 charges in the indictment.

19 With respect to sentencing, the Chamber considered the inherent

20 seriousness of the crimes of which you have been convicted, that you

21 participated directly in their commission, and that you held high-ranking

22 positions in the KLA. The Chamber also considered the vulnerability of

23 the victims and the physical and mental trauma they suffered. It

24 furthermore considered how, upon learning that one of his co-detainees

25 had died following ill-treatment, Witness 6 must have feared for his

Page 11281

1 life. That said, the Chamber considered that your voluntary surrender to

2 the Tribunal and your family situation were mitigating circumstances.

3 For having committed these crimes, we sentence you, Mr. Brahimaj,

4 to a single sentence of six years' imprisonment. You are entitled to

5 credit for the period of time you have been in custody, which amounts to

6 1109 days. As mentioned, Judge Hoepfel has a dissenting opinion on one

7 of the counts, which he will now summarize.

8 [The Accused Brahimaj sits down]

9 JUDGE HOEPFEL: With full respect for the majority's opinion, I

10 have to dissent from some conclusions which the majority of this Chamber

11 reached in relation to Count 14.

12 Under this count, the Chamber found that sister "S," her mother,

13 and sister "M" had been taken from their home on separate occasions and

14 then murdered by KLA soldiers. The Chamber further found that the

15 accused Idriz Balaj was present when these persons were taken away from

16 their home and also when sister "S" was allowed to visit her family after

17 she had been taken away. The evidence showed that sister "S," who had

18 been coerced to become a KLA member, took orders from Idriz Balaj, that

19 Idriz Balaj had instructed her to be back at the KLA base by a certain

20 time after the second visit home, and that he checked whether she

21 complied. Further, the evidence showed that Idriz Balaj had ordered

22 sister S to kill somebody and that Balaj threatened to kill her if she

23 did not comply.

24 While I support the Chamber's findings on Count 14 as to the

25 aforementioned points, I respectfully disagree with the majority's

Page 11282

1 finding that there is no evidence to establish that Idriz Balaj aided and

2 abetted the commission of the murder of sister S. In my opinion, the

3 aforementioned acts provide as a sufficient basis to find that by

4 bringing sister "S" under KLA control in this fashion, Idriz Balaj placed

5 her at a direct and serious risk. This risk did indeed materialise and

6 resulted in her death. For these reasons I find that Idriz Balaj

7 substantially contributed to the commission of the murder of sister "S."

8 The evidence showed the leading role of Idriz Balaj in the

9 removal and visits of sister "S." The aforementioned death threat

10 furthermore demonstrates Idriz Balaj's own belief in his control over the

11 life and death of sister "S." On the basis of these considerations, I am

12 convinced beyond a reasonable doubt that Idriz Balaj was aware that

13 sister "S" would be murdered and that he was aware that by removing

14 sister "S" and controlling her, he would assist in the commission of this

15 murder. Consequently, he knowingly aided and abetted the commission of

16 the murder of sister "S."

17 I therefore find that Idriz Balaj is guilty of aiding and

18 abetting the commission of the murder of sister "S," which in my view

19 should have resulted in his conviction under Count 14.

20 JUDGE ORIE: This concludes the delivery of the judgement, which

21 will now be made publicly available.

22 The Chamber stands adjourned.

23 --- Whereupon the hearing adjourned at 4.58 p.m.