Tribunal Criminal Tribunal for the Former Yugoslavia

Page 2743

 1                           Monday, 25 June 2012

 2                           [Prosecution Closing Statement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.16 p.m.

 6             JUDGE MOLOTO:  Good afternoon to everyone in and around the

 7     courtroom.

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

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

10     IT-04-84bis-T, the Prosecutor versus Ramush Haradinaj, Idriz Balaj, and

11     Lahi Brahimaj.

12             JUDGE MOLOTO:  Thank you very much.  May we please have the

13     appearances for the day starting with the Prosecution.

14             MR. ROGERS:  Yes.  Good afternoon, Your Honours.  Paul Rogers for

15     the Prosecution, appearing together with Mr. Aditya Menon,

16     Ms. Barbara Goy, Ms. Daniela Kravetz, and our Case Manager,

17     Ms. Line Pedersen.

18             JUDGE MOLOTO:  Thank you very much and for Mr. Haradinaj.

19             MR. EMMERSON:  Good afternoon, Your Honour.  Ben Emmerson for

20     Ramush Haradinaj, together with Rodney Dixon, Andrew Strong,

21     Annie O'Reilly, and Kerrie Rowan.

22             JUDGE MOLOTO:  Thank you so much.

23             And for Mr. Balaj.

24             MR. GUY-SMITH:  Good afternoon, Your Honour.  Gregor Guy-Smith,

25     Colleen Rohan, Holly Buchanan, Gentian Zyberi, and our new intern,


Page 2744

 1     Ramon Barquero, appearing on behalf of Mr. Idriz Balaj.

 2             JUDGE MOLOTO:  Thank you very much, Mr. Guy-Smith.

 3             And for Mr. Brahimaj.

 4             MR. HARVEY:  Good afternoon, Your Honours.  Richard Harvey,

 5     together with Paul Troop, Luke Boenisch, and Sylvie Kinabo on behalf of

 6     Mr. Brahimaj.

 7             JUDGE MOLOTO:  Thank you very much, Mr. Harvey.  I guess we all

 8     know why we are here today, to hear closing arguments from the parties.

 9             Mr. Rogers.

10             MR. ROGERS:  Your Honours, thank you.  Your Honours, for your

11     information, I expect to be between an hour and a half and two hours in

12     my submissions.  And, Your Honours, I've attempted to try to ensure that

13     as much of this can be in open session as much as possible.  Having said

14     that, immediately there is a matter I just want to deal very briefly with

15     in private session before I start the fullness of my submissions.

16             JUDGE MOLOTO:  May the Chamber please move into private session.

17                           [Private session]

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16                           [Open session]

17             THE REGISTRAR:  Your Honour, we're in open session.

18             JUDGE MOLOTO:  Thank you Mr. Registrar.

19             Yes, Mr. Rogers.

20             MR. ROGERS:  Your Honours, in my submissions, I will present an

21     overview first of the case against the accused.  Secondly, I will address

22     the crimes in summary at Jabllanice.  Third, I will make some remarks

23     about the assessment of witness evidence in general and some specific

24     issues relating to Witness 3 and the protected witness.  Fourthly, I will

25     turn to the issue of the accused's criminal responsibility.  And, fifthly


Page 2746

 1     and finally and briefly, will make some remarks in relation to sentence.

 2             Your Honours, turning to the overview, Your Honours, the crimes

 3     the subject of this indictment and for which the three accused,

 4     Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj are criminally

 5     responsible occurred as part of the brutal elimination of opposition by

 6     the KLA to which they subscribed.

 7             The accused were senior and respected commanders in the KLA.

 8     Together, they pursued the elimination of opposition by mistreating,

 9     torturing, and murdering perceived opponents at the Jabllanice prison.

10     This was a small facility located in one of only two buildings on a small

11     plot of land on the edge of Jabllanice village.  Due to its size, for

12     those members of the KLA attending that place, it was, we submit,

13     impossible not to know what was going on.

14             The close co-operation of the three accused, aided by the strong

15     familial ties between Mr. Haradinaj and Lahi Brahimaj, ensured and

16     encouraged the continued use of the Jabllanice prison facility throughout

17     the indictment period to pursue this unlawful enterprise.

18             Ramush Haradinaj was, throughout, a highly respected KLA

19     commander in the Dukagjin area of Western Kosovo.  His family home was in

20     Glodjan.  His stalwart defence of it in March 1998 against a concerted

21     attack by Serbian forces propelled him to almost God-like status within

22     the region.

23             As Cufe Krasniqi, a KLA soldier, put it, P54, paragraphs 40 to

24     43:

25             "This incident gave Ramush Haradinaj immense popularity in

Page 2747

 1     Kosovo."  He went on, "The attack on Glodjan was the first public victory

 2     for the guerilla KLA army."  And he said, "After this incident the

 3     village of Glodjan became the most respected UCK or KLA headquarters

 4     after Jabllanice."  And finally, "Glodjan was accepted as the focal point

 5     of the KLA in the whole Peje and Decan, and Ramush Haradinaj as the

 6     popular commander of the UCK forces in the Dukagjin area."

 7             Not far from Glodjan lay the home of Ramush Haradinaj's maternal

 8     uncle, Lahi Brahimaj.  He, too, was a powerful KLA commander based in the

 9     more remote and secure location of Jabllanice.  Idriz Balaj was the

10     commander of a special unit known as the Black Eagles.  He was the

11     trusted lieutenant of Ramush Haradinaj, even known as Togeri, meaning

12     lieutenant.

13             As Haradinaj's trusted lieutenant, Balaj was an important link

14     between Brahimaj and Haradinaj.  As commander of the feared Black Eagles,

15     a unit under the direct command of Ramush, Balaj reported directly to

16     Haradinaj.  He was seen together with Haradinaj regularly.  He was

17     regarded as very close to Haradinaj, a view shared by both those within

18     the KLA and the Serbian intelligence services.  So close was this

19     relationship that KLA soldiers needed special permission from Haradinaj

20     to visit Balaj and his Black Eagles.  Zoran Stijovic referred to Balaj as

21     basically a bodyguard of Ramush Haradinaj.  He said, "He and his group

22     were constantly by the side of Ramush Haradinaj."  That's at P122,

23     transcript 9073.

24             Whilst the accused were, in part, fighting a war to achieve

25     control of the Dukagjin Zone, from the outset they pursued that aim by a

Page 2748

 1     mixture of legitimate military action and the illegitimate illegal

 2     targeting of civilians suspected as spies and collaborators and those

 3     considered opponents of the KLA.  For liability under a joint criminal

 4     enterprise, it is sufficient for the aim to be achieved through criminal

 5     means.

 6             Your Honours, I will deal later with the accused's position and

 7     responsibility, but I'll summarise this now.

 8             Ramush Haradinaj, through his position of authority arising from

 9     the respect accorded to him as a hero and a commander and through his

10     strong family ties, was able to influence the conduct of others, and, in

11     particular, his uncle, Lahi Brahimaj; Idriz Balaj; and the soldiers under

12     their individual command.  His endorsement and support for the

13     elimination of opposition through illegal means, coupled with his

14     position of authority and respect, acted as positive encouragement to the

15     perpetrators of the crimes at Jabllanice.  His failure to use his

16     authority and influence to stop the mistreatment, particularly after he

17     assumed formal command of the facility in June 1998, coupled with his

18     continuation of the repression of opposition by banning political

19     activity of any party or association of a political nature, and by

20     ordering the military police to root out collaborators show his continued

21     support for the repressive aims of the KLA.  As commander from June 1998,

22     he had a duty to protect those in the custody of his subordinates.

23             Lahi Brahimaj was central to the operation of the oppressive

24     regime of torture, mistreatment, abuse and murder at the Jabllanice

25     prison.  His command of that facility, the soldiers in it, and his

Page 2749

 1     position of influence within the KLA and his family, together with his

 2     personal involvement in the direct perpetration of crimes against victims

 3     named in the indictment including in ordering or instigating their

 4     murders, can leave no doubt as to his criminal responsibility under the

 5     indictment and is the clearest possible evidence of the pursuit of the

 6     repressive aims of the KLA.

 7             Idriz Balaj regular presence at the prison in Jabllanice, his

 8     direct perpetration of crimes, his manifest relish for violence as

 9     demonstrated by his fearsome reputation, his behaviour towards others,

10     such as in the FARK incidents set out in our brief at paragraphs 80 to 84

11     and in his stated aim of being present in Jabllanice to "kill people," as

12     attested to by the protected witness, all demonstrate his commitment to

13     the unlawful repression of opposition throughout the Dukagjin area.  By

14     his conduct, he encouraged others.

15             The shared intent of the three accused to eliminate

16     collaborators, spies and opponents of all types is manifest and obvious.

17     To this end, in the context of this armed conflict, this included through

18     torture, mistreatment, and murder.

19             The accused worked together to achieve this end.  Jabllanice and

20     Glodjan throughout co-operated closely together.  Pjeter Shala and

21     Skender Rexhametaj testified that fighters from Jabllanice provide

22     assistance to Glodjan during the fire-fight at the Haradinaj compound in

23     March 1998.  I direct you to our brief at paragraphs 28 and 29.

24     Zoran Stijovic testified that Haradinaj and other fighters retreated from

25     Glodjan to shelter at Jabllanice.  That's P121, paragraphs 41; P151,


Page 2750

 1     page 3; and P31, page 2.

 2             The mutual support offered by these family bases proved

 3     invaluable throughout the conflict and enabled the KLA forces to fact in

 4     a co-ordinated and cohesive way.

 5             When Haradinaj consolidated his command over the two headquarters

 6     in June 1998, he issued orders that continued to implement measures to

 7     target those perceived as opponents of the KLA.  He issued regulations -

 8     that's P349 and P190 - directing the military police to seek out

 9     collaborators, and he instructed KLA commanders and the population at

10     large to prevent any activity under pain of imprisonment that went to the

11     detriment of their war.  P196.

12             The KLA, in which these accused commanded positions of influence,

13     secured control by pursuing a number of strategies.

14             Your Honour, I need to go into private session for this next

15     quotation, please.

16             JUDGE MOLOTO:  May the Chamber please move into private session.

17                           [Private session]

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15                           [Open session]

16             THE REGISTRAR:  Your Honours, we're back in open session.

17             JUDGE MOLOTO:  Thank you very much.

18             Yes, Mr. Rogers.

19             MR. ROGERS:  The identification of collaborators, spies, and

20     those considered opponents lay at the heart of the KLA's strategy to

21     secure control of the territory they fault for.  As a fledgling

22     organisation, it needed to make its mark, to be recognised and to be

23     accepted.  But its strategies included creating fear and operating a

24     brutal regime of torture, cruel treatment, and murder directed at those

25     suspected as traitors and spies, and collaborators and others not


Page 2752

 1     supporting the KLA's aims.  The protected witness stated:

 2             "Not joining the KLA was risky for me," and that "they wanted to

 3     have people under their control."

 4             The consistent witness evidence in this case shows that this

 5     brutal strategy was implemented in Jabllanice and elsewhere in the

 6     Dukagjin Zone.  It can be seen demonstrated, for example, in the KLA

 7     clashes with the FARK soldiers, when Ramush Haradinaj attacked and shot a

 8     FARK soldier, and Idriz Balaj, with others, attacked and beat other FARK

 9     soldiers; those event taking place on the 4th of July, 1998.  It shown

10     though the attack on the Stojanovic brothers and others in Glodjan and

11     the elimination of Zenun Gashi.  And for further details, we direct

12     Your Honours to paragraphs 77 to 85 of our brief.  And it is seen most

13     obviously in the torture, cruel treatment and murder of the victims named

14     in the indictment at Jabllanice.  Of course variously, the various

15     crimes.

16             Contemporary KLA communiques dating from before the beginning of

17     the armed conflict and after in which the killing of collaborators were

18     announced and the operation of blacklists leave no room for uncertainty

19     as to the fate to befall those suspected of collaboration.  And we direct

20     Your Honours again to our brief at paragraphs 52 to 61.

21             The fact that blacklists were operating before the formal

22     unification of Ramush Haradinaj's command over both Glodjan and

23     Jabllanice and that shared resources across the two commands were used to

24     target opponents; for example, in May 1998, Faton Mehmetaj from Glodjan

25     and Pjeter Shala from Jabllanice interrogated Rrustem Tetaj as a

Page 2753

 1     suspected collaborator, shows that the unified ideal between the accused

 2     and the joining together of resources to achieve that end demonstrates

 3     their shared intent.

 4             On the 4th of March, 1998, before the start of the armed

 5     conflict, the KLA aim of killing those considered traitors was announced

 6     in a communique which stated:  "Death to enemies and traitors."  Quite

 7     simple.  That's Jakup Krasniqi P65, P37, Annex 8, and P67.

 8             This aim was restated when on the 6th of July, 1998,

 9     Jakup Krasniqi, then the spokesperson of the KLA on the KLA General

10     Staff, restated that aim in no uncertain terms.  He sent out a clear

11     warning to the population at large stating of collaborators, "We will

12     kill them if they continue to follow the wrong path."  That's P67,

13     transcript reference 3359 to 63.  This warning would have been known to

14     the accused.

15             Indeed the practice of killing opponents was so deep rooted in

16     Jabllanice and the Dukagjin area that a euphemism "take them to Drenica,"

17     meaning kill them, had been developed and was known to the KLA soldiers

18     there.  Those threats were carried out in reality in Jabllanice.

19             Your Honours, I turn now to deal with the crimes.

20             Your Honours, before I start my summary, and it is a summary

21     whose details are set out fully in our brief and I don't want to restate

22     everything when Your Honours have it.  But before I start, I want to make

23     it clear the Prosecution does not intend to rely on the evidence of

24     Witness 81.  It invites the Chamber to ignore that evidence as unreliable

25     and treat it as though it was not part of the record.  The Chamber

Page 2754

 1     should, of course, continue to assess the remainder of the evidence

 2     independently and without regard to his evidence.

 3             I turn now to deal with the crimes at Jabllanice.

 4             The overwhelming preponderance of the evidence in this case

 5     confirms beyond any reasonable doubt that there was a prison in

 6     Jabllanice between at least April 1998 and September 1998; that persons

 7     suspected of being Serbian spies, collaborators, or otherwise not

 8     supporting the KLA were detained there; that those persons, including

 9     Witness 3, Witness 6, Jah Bushati, Skender Kuqi, Pal Krasniqi,

10     Naser Lika, Ivan Zaric, Agron Berisha, Burim Betja, and the many others

11     named in the indictment were severely beaten and tortured, and some of

12     them were killed; that Lahi Brahimaj and his family were at the centre of

13     the mistreatment and abuse; that Idriz Balaj tortured and abused those

14     detained there; and that Ramush Haradinaj supported, encouraged, and

15     otherwise contributed to those crimes.

16             Your Honours, there can be no doubt that between April and

17     September 1998, those who supported -- those who did not support the

18     ideals and aims of the KLA were tortured, mistreated, and murdered at the

19     premises in Jabllanice known variously as the headquarters, barracks, or

20     prison.  The consistent evidence of the witnesses in this case

21     identifies, we submit, the same location and buildings in Jabllanice as

22     the place containing the prison.

23             Jabllanice was a secure and remote location suitable for a

24     prison.  Difficult to access, Jabllanice was not overrun by Serb forces

25     until August 1998.  Not May 1998 as suggested by the Haradinaj Defence at

Page 2755

 1     paragraph 34 of their brief where they refer to two VJ combat reports of

 2     the 125th Motorised Brigade dated the 20th and 22nd of May to support the

 3     assertion that Serb forces overran Jabllanice in May, but neither of

 4     those documents makes any reference to Jabllanice.  The area of attack

 5     referred to is Grabanice and villages well to the east of Jabllanice.

 6     And Your Honours may remember that the attack on Grabanice was around the

 7     20th of May, 1998.  Interestingly, those contemporaneous VJ combat

 8     reports also contain reference to the abductions of Serbs and of an

 9     increase in the number of "intercepting kidnappings and attacks against

10     the civilian population" by the KLA, as the Serbs called them,

11     "terrorists," P115.

12             Your Honours, the prison location in Jabllanice was in a small

13     plot of land and consisted of only two buildings.  Your Honours, we

14     should have on your display momentarily, not me, but the photograph.  I

15     don't know whether Your Honours have that.  No.

16             Your Honours will remember this, and it's perhaps worthwhile

17     reminding ourselves of what the premises looked like after these many

18     months in trial.  There they are.  Very simple.  A small compound

19     containing one house with four rooms and a basement, and at the back

20     along the wall, another wreck in this photograph of a building but --

21     which you have heard evidence contained a kitchen and office.  And the

22     gate by the road at the edge of the village.  Not a large overwhelming

23     multibuilding facility but a small, remote, and private location.

24             It was not the kind of place, as emphasised by the Balaj and

25     Brahimaj Defence in their briefs, where it was possible to not know what

Page 2756

 1     was going on.  And Your Honours can see why that may be.  Indeed, such

 2     was the reputation of the prison that its existence was known to the

 3     local villagers and to Serbian intelligence.  And we direct yourself

 4     again to page -- at paragraph 90 of our final trial brief for more

 5     information.

 6             We can take the picture from the screen.  Thank you.

 7             The consistent evidence of those intercepted, kidnapped, and

 8     detained in that prison exposes the intolerance and indiscriminate

 9     brutality of KLA fighters towards ethnic Albanian, Roma, Gypsy, and Serb

10     alike.

11             Such was the intolerance of the KLA toward those it considered

12     opponents that mere suspicion was enough to see innocent civilians

13     bundled unceremoniously into the trunk of a car and transported to the

14     prison to be accused and beaten over days with sticks and fists.  Even

15     those such as Pal Krasniqi, mentioned in Count 5, who had attended the

16     prison to join up and fight for the KLA cause, found the finger of

17     accusation pointing at him, resulting in detention and abuse, and in his

18     case, death.

19             Those detained were kept bound like animals, soiling themselves

20     and sleeping in their own excrement and urine, dehumanised and

21     humiliated.

22             The consistent evidence of those detained and beaten in the

23     Brahimaj prison places Lahi Brahimaj at the heart of the mistreatment.

24     He and other perpetrators were supported and encouraged by other family

25     members, including his brothers Nazmi and Naser Brahimaj and Ramush

Page 2757

 1     Haradinaj, we say, his maternal nephew, and were assisted and encouraged

 2     by Haradinaj's trusted lieutenant, Idriz Balaj.

 3             Evidence of the pattern of abuse in Jabllanice stretches from the

 4     spring-time of 1998 into and through the summer of 1998 until Jabllanice

 5     was overrun in August 1998 by Serbian forces.

 6             Sometime in the spring of 1998, Jah Bushati, a Kosovar Albanian

 7     Muslim civilian, was abducted on the evidence by KLA members near to

 8     Zhabel.  The protected witness confirms that he saw Bushati at the

 9     Jabllanice prison and that he had been severely beaten and that he was

10     suspected of being a Serbian spy.  Shefqet Kabashi also confirms Jah was

11     detained and severely beaten by Lahi Brahimaj.  Jah's severe injuries and

12     terrible condition were also confirmed by two other protected witnesses.

13             In May 1998, as charged in Count 1, Ivan Zric, Agron Berisha and

14     Burim Betja, three innocent young men described variously as children or

15     boys who had simply gone together on a horse and cart to mill corn, as

16     they had been doing regularly, had the random misfortune that day to come

17     across the path of KLA soldiers and were abducted, accused of being

18     spies.  They were taken to Jabllanice.  They were again accused of being

19     spies.  They were beaten by Lahi Brahimaj, Idriz Balaj and others.  They

20     were tortured, they are terrified, and they were humiliated.  Idriz Balaj

21     beat all three, and sliced off the ear of one.  The victims cried for

22     their mothers, urinated in their clothes, and they were, according to the

23     protected witness who observed this beating, beaten black and blue, to a

24     pulp.  And then Lahi Brahimaj and Idriz Balaj ordered that they be taken

25     to Drenica, the euphemism confirmed by Shefqet Kabashi and the protected

Page 2758

 1     witness to mean that they would be murdered.  All three have never been

 2     seen again and their bodies have never been recovered.

 3             Again around May 1998, the victims of Count 2 disappeared between

 4     Dollovo and Grabanice, ending up, the Prosecution says, in Jabllanice

 5     prison from whence they disappeared and were never heard of again.

 6             In June 1998, Witness 6, the victim in Count 3, a Catholic

 7     Kosovar Albanian civilian, was abducted whilst travelling with his

 8     family, taken to Jabllanice prison and beaten mercilessly for days.  His

 9     possession of a pistol and a photograph of a retired Albanian policeman

10     in uniform was enough to cause the finger of suspicion to point at him,

11     and for six weeks he was detained in Jabllanice.  Lahi Brahimaj accused

12     him of being a spy and joined in with his beating, and Witness 6

13     described his beating in this way:

14              "They beat me with baseball bats, with fists.  For two weeks I

15     didn't know much of myself.  I didn't know where my face was, where my

16     neck was.  I was all swollen up because of the beatings."

17             That's at P84, transcript 5217.

18             Whilst detained in the prison, Witness 6 also testified about the

19     mistreatment of the victims of Count 4, namely Nenad Remistar, whom he

20     was detained with and saw beaten with a baseball bat by Nazmi Brahimaj.

21     He, Remistar, has also disappeared, and his body has never been

22     recovered.  And Witness 6 also spoke about a Bosnian man whose crime

23     appears to have been to have worked for the Serbian state run electricity

24     company, ElektroKosova, and also he spoke of three Montenegrins.  He

25     described how all four were beaten with baseball bats, and he described

Page 2759

 1     stabbed with knives.  All three or four were taken away after a few days

 2     and never seen again.

 3             Around the 13th of July, 1998, Lahi Brahimaj arrested Witness 3,

 4     a victim in Count 5, Kosovar Albanian Muslim.  Lahi Brahimaj took him to

 5     the prison in Jabllanice and there he was accused of being a Serbian

 6     supporter.  Witness 3 was beaten severely with baseball bats and sticks.

 7     He was beaten so badly he could not stand.  And Brahimaj ordered --

 8     Lahi Brahimaj ordered that fellow KLA soldiers practice beating him, and

 9     he was brutally beaten again with sticks and Your Honours may recall his

10     testimony relating to that.

11             At one point Lahi Brahimaj handed Witness 3 a revolver and

12     suggested that he "take this, kill yourself, because I don't want to

13     smear my hands with your blood."  Witness 3, transcript 1567 to 8.

14             Whilst detained, Witness 3 also saw Skender Kuqi and

15     Pal Krasniqi, both Kosovar Albanian civilians and both victims named in

16     Count 5.  He was tied with them.  They, too, had been severely beaten,

17     and Witness 3 described Kuqi being beaten five or six times a day by

18     Naser Brahimaj.  Witness 6 saw Kuqi swollen all over because of the

19     beatings he had received.  The protected witness also saw the terrible

20     condition of Skender Kuqi and had seen him arrive in the trunk of his own

21     car as had Witness 6.

22             Your Honours, we submit that this must have been around the

23     13th of July, 1998, as Witness 3 confirmed that this was the approximate

24     start of his ordeal in transcript at 1669.  And also Witness 6 had said

25     that about two weeks before he was released, and he confirmed that his


Page 2760

 1     release date was the 25th of July, 1998, and that's in P84 at transcript

 2     5255, he said that about two weeks before he was released, which would

 3     take it to around the 13th of July or slightly earlier that he saw a man,

 4     Kuqi, arrive in the boot of a Mercedes car.  That's at P84, T5231.  It's

 5     confirmed by the protected witness.  And he later discovered that the car

 6     was in fact the victim's own car, Mercedes-Benz.

 7             Shefqet Kabashi, a KLA soldier based in Jabllanice, also saw

 8     Skender Kuqi detained if the prison.  Lahi Brahimaj told Kabashi that

 9     Kuqi was a Serbian spy working for the Serbian State Security Service.

10     The protected witness also heard Lahi Brahimaj and Nazmi Brahimaj accuse

11     Kuqi of being a Serbian collaborator.  And, Your Honours, we submit it is

12     no coincidence that Skender Kuqi's name appears on a blacklist of wanted

13     persons circulated by the KLA around the 12th of July, 1998.  That's

14     Exhibit D212, pages 13 to 14.

15             Kuqi and Krasniqi tried to escape with Witness 3, but they were

16     both recaptured.  Witness 6 and the protected witness, as well as

17     Shefqet Kabashi, between them confirm that Kuqi and Krasniqi were

18     recaptured, returned to the prison and subjected to a merciless beating.

19             Your Honours, could we briefly, very briefly, move into private

20     session.

21             JUDGE MOLOTO:  May the Chamber please move into private session.

22                           [Private session]

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 4   (redacted)

 5   (redacted)

 6   (redacted)

 7                           [Open session]

 8             THE REGISTRAR:  Your Honours, we're back in open session.

 9             JUDGE MOLOTO:  Thank you, Mr. Registrar.

10             Yes, Mr. Rogers.

11             MR. ROGERS:  Your Honour, the fact that Kuqi was detained and

12     that he tried to escape is also confirmed by Rrustem Tetaj.  Kuqi had

13     been so severely beaten that he later died.

14             The protected witness saw Kuqi in such a poor state - and

15     Your Honours may recall his evidence - that he believed he was dead.  The

16     Defence, of course, challenge this, suggesting that Kuqi was not dead at

17     that point, and whilst the Defence seek to make much of the witness's

18     account of the state of the body of Kuqi, it is clear, we submit, on the

19     totality of the evidence that the witness was merely expressing an

20     opinion based upon what he perceived to be the appalling condition of the

21     body of this man.

22             Witness 3 managed to escape, only to be arrested again a few days

23     later by Lahi Brahimaj who forced him into the trunk of a car, and

24     Your Honours may recall his evidence that he was made to endure a mock

25     execution.

Page 2762

 1             Your Honours, just returning previously to deal with

 2     Pal Krasniqi, who was one of the others detained with Witness 3 and with

 3     Skender Kuqi.  Pal Krasniqi, around the 10th of July, 1998, had gone to

 4     Jabllanice to join the KLA, but he was arrested as a Serbian spy.  He was

 5     detained together with Witness 3 and Kuqi in the Brahimaj prison at

 6     Jabllanice.  Witness 3 saw Krasniqi and Kuqi being beaten continuously

 7     with baseball bats.  Witness 6 described the state of the two men as

 8     "horrifying."  Krasniqi could not stand up and was left to soil himself

 9     in the clothes that he wore.

10             Krasniqi was detained for a considerable period of time, until

11     after the 25th of July, 1998, at the very earliest, as that was the day

12     Witness 6 was released, and he recalls Krasniqi still being detained and

13     still alive at that point in the prison.

14             On the 11th of September, 1998, Pal Krasniqi's body was recovered

15     from the canal leading to the Lake Radoniq area, an area, we submit,

16     controlled by the KLA.  On the available evidence, we submit, he must

17     have been executed by the KLA after he was -- sometime after he was last

18     seen alive in detention on the 25th of July, 1998.

19             Your Honours, I want to deal now with Count 6, and I need to move

20     briefly into private session.

21             JUDGE MOLOTO:  May the Chamber please move into private session.

22                           [Private session]

23   (redacted)

24   (redacted)

25   (redacted)

Page 2763

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15                           [Open session]

16             THE REGISTRAR:  Your Honours, we're back in open session.  Thank

17     you.

18             JUDGE MOLOTO:  Thank you, Mr. Registrar.

19             Yes, Mr. Rogers.

20             MR. ROGERS:  Your Honours may feel that the critical evidence in

21     this case came from those who were mistreated and abused at the prison.

22     We submit that taken together, they provide a mutually consistent account

23     of the pattern of abuse perpetrated by those members of the KLA in

24     Jabllanice and beyond.  And as to timing, whilst there may be some

25     differences, both within individual witness evidence and when compared


Page 2764

 1     together, Your Honours can still be sure that there is a broadly

 2     consistent chronology of events.

 3             Your Honours, that leads me to make some remarks now relating to

 4     the credibility of witnesses, and then I want to turn to make some

 5     particular remarks about the protected witness.

 6             Dealing firstly with some general observations, and Your Honours

 7     I hope will forgive me for making these observations to Judges used to

 8     dealing with cases on a regular basis, but it perhaps bears remembering.

 9             Your Honours, clearly there are differences in accounts.

10     Your Honours are entitled to consider the passage of time that has

11     elapsed between 1998 and 2012, some 14 years, and how those natural

12     differences may be exacerbated when the proceedings are unfamiliar and in

13     a language that is not your own.  Inevitably, time will have taken its

14     toll, but while some details may fall victim to the passage of time, the

15     witnesses still recall the main events impressed on their minds with

16     clarity.

17             Where they are perhaps confused about dates for specific events,

18     Your Honours can look to other evidence in the record to confirm when

19     those events about which they speak must have occurred.  Your Honours are

20     entitled to consider the stress and fear Kosovar Albanian witnesses may

21     have in testifying in this case.

22             Your Honours will recognise that most of the critical witnesses

23     have protective measures, those measures were in place as a result of an

24     objective assessment of their security issues and of what was required

25     for their protection.  If a witness had been relocated, likewise would


Page 2765

 1     have been an independent assessment of that necessity.

 2             In relation to the protected witness in particular, Your Honours

 3     will recall the manner and length of time over which he testified, and

 4     you will bear in mind no doubt his demeanour.  He testified over a number

 5     of full days in difficult circumstances Your Honours may feel.  You are

 6     entitled to consider the extent to which any anxiety may have abated over

 7     the days he testified in determining whether such anxiety may have

 8     affected the answers given in the early part of his testimony where they

 9     appear to conflict with answers given later in his testimony.

10             Your Honours will recall how he spoke about what he saw and the

11     effect that it clearly had on him, particularly in relation to his

12     account of the events relating to the three young men.  He was subjected

13     to lengthy cross-examination in which he was accused of fabricating his

14     accounts and acting for monetary gain.

15             You will recall how he testified in response, and you will recall

16     a similar attack being made on Witness 3 and how he responded when it was

17     suggested he was co-operating with the Prosecution simply for gain.  Both

18     those witnesses rejected those allegations.

19             And, Your Honours, I want to deal with how they dealt with that,

20     but as it was in private session, I need to go into private session.

21             JUDGE MOLOTO:  May the Chamber please move into private session.

22                           [Private session]

23   (redacted)

24   (redacted)

25   (redacted)

Page 2766











11 Pages 2766-2767 redacted. Private session.
















Page 2768

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11                           [Open session]

12             THE REGISTRAR:  Your Honours, we're in open session.

13             JUDGE MOLOTO:  Thank you, Mr. Registrar.

14             Yes, Mr. Rogers.

15             MR. ROGERS:  Your Honours, neither of these men wanted to leave

16     their homes and their families.  Their hearts lie in Kosovo, the home of

17     their fathers and their forefathers.  They had lived happily with their

18     extended families, as is the Albanian culture.  And now they live away

19     from that, cut off from all that they had been brought up to know.  So,

20     too, their wives and their children.  It is said that they would trade

21     all of that in exchange for lies, to compromise themselves so utterly as

22     to make return home impossible.

23             Your Honours, the reality is that they traded their homes, their

24     families, and their livelihoods because honesty, integrity, and truth

25     were more important, more important than their own safety, more important


Page 2769

 1     than their homes and their friends and their surroundings, a higher

 2     calling to do what is right.

 3             Your Honours are entitled to weigh those circumstances positively

 4     when assessing the reliability of these witnesses.

 5             Your Honours, I want to turn now to make some specific remarks

 6     concerning the protected witness.  I wish to cover five particular areas:

 7     First, some issues relating to Count 1; secondly, relating to a number of

 8     arrests; thirdly, relating to Skender Kuqi; fourthly, Witness 6; and then

 9     Witness 3 and Shefqet Kabashi.  When I've concluded that, I will move on

10     to make some general remarks about the use of unadmitted documents and

11     evidence and conclude this particular topic with some comments about the

12     assessment of evidence generally.

13             Your Honours, the Defence attack the protected witness as

14     unreliable, inconsistent, contradictory, and lacking support.  But in

15     truth, there is a great deal of consistency.  It --

16             MR. EMMERSON:  I do apologise, but if -- if Mr. Rogers is going

17     to make generalised submissions with [indiscernible] reference to the

18     Defence, he ought to distinguish between which Defence he is referring to

19     because he's not summarising submissions made by Mr. Haradinaj's team.

20             MR. ROGERS:  I make it broadly.  He is attacked, I put it that

21     way, as unreliable, inconsistent, contradictory and lacking support.  I'm

22     not sure whether Mr. Emmerson is suggesting he's not unreliable,

23     inconsistent, or contradictory.  But in truth, there is a great deal of

24     consistency in his evidence and much support from the other witnesses,

25     especially when considering the 14 years that have elapsed since they all


Page 2770

 1     witnessed these events.

 2             Your Honours, I'll turn now to deal with the five specific issues

 3     I mentioned.  Firstly, in relation to Count 1 -- I'm just going to make

 4     three points and then we'll need to go into private session.  In relation

 5     to Count 1, we submit, there can be no doubt from the evidence that the

 6     three young men in Count 1, aged 22, 15 and 16, left the village of Dollc

 7     together on a horse-drawn cart.  There can be no doubt that they went to

 8     Grabanice to mill corn and that they never returned.

 9             Your Honours, may we now turn into private session.  And I will

10     be a little while now in private session.

11             JUDGE MOLOTO:  May the Chamber please move into private session.

12                           [Private session]

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 2771











11 Pages 2771-2779 redacted. Private session.
















Page 2780

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6                           [Open session]

 7             MR. GUY-SMITH:  Excuse me.  With regard to the last --

 8             THE REGISTRAR:  Your Honours, we're in open session.  Thank you.

 9             MR. GUY-SMITH:  Excuse me.  With regard to the last remark made

10     by Mr. Rogers, that's a clear example of burden shifting which is an

11     impermissible argument.

12             JUDGE MOLOTO:  Is this a convenient time?

13             MR. ROGERS:  Your Honours, yes, it is a convenient time.

14             JUDGE MOLOTO:  We'll take a break and come back at 4.00.  Court

15     adjourned.

16                           --- Recess taken at 3.34 p.m.

17                           --- On resuming at 4.01 p.m.

18             JUDGE MOLOTO:  Yes, Mr. Rogers.

19             MR. ROGERS:  Thank you, Your Honour.

20             Your Honour, could we just move briefly into private session.

21             JUDGE MOLOTO:  May the Chamber please move into private session.

22                           [Private session]

23   (redacted)

24   (redacted)

25   (redacted)

Page 2781











11 Page 2781 redacted. Private session.
















Page 2782

 1                           [Open session]

 2             THE REGISTRAR:  Your Honours, we are in open session.

 3             JUDGE MOLOTO:  Thank you so much.

 4             Yes, Mr. Rogers.

 5             MR. ROGERS:  Your Honours, I was dealing with certain credibility

 6     issues relating to the protected witness, and, one, as I draw to the end

 7     of this part of my submissions, relates to Shefqet Kabashi where it is

 8     suggested by some of the Defence, and we say I am plausibly and without

 9     any foundation and without any suggestion to either the protective

10     witness or Shefqet Kabashi that they, too, had somehow colluded, and we

11     submit that that is a suggestion that should be rejected out of hand.

12             Your Honours, in our submission, whenever the Defence see

13     consistency, they see collusion, and Your Honours may, however, see

14     honesty, reliability, and plausibility.

15             Your Honours, may I turn to just deal with an issue relating to

16     unadmitted documents and those that have been admitted for limited

17     purpose.

18             The Defence, some of them, refer to evidence that is not admitted

19     as evidence of the truth of its contents in an attempt to impeach the

20     protected witness.  Your Honours, our submission, these are collateral

21     issues to which the witness's answer is final.  Merely putting a document

22     to a witness does nothing more than give the witness an opportunity to

23     comment upon it.  It's the witness's answer that is final.  The document

24     itself has no evidential value and no weight can be attached to it unless

25     it is adopted by the witness.

Page 2783

 1             Reference is made to the out-of-court statements of Fadil Fazliu

 2     and Nazir Fazliu to documents related to an employment dispute and

 3     various UNMIK records of which were admitted only to allow the Chamber to

 4     follow the record, not as evidence of the truth of their contents.  These

 5     documents have no intrinsic value unless evidence either they've been

 6     adopted by the witness or evidence has been called to establish the truth

 7     of their contents insofar as the witness has not adopted them.  No such

 8     evidence has been adduced.

 9             Your Honours, in our submission, another example of impermissible

10     use of out-of-court statements and unadmitted documents is where

11     Mr. Haradinaj in his brief refers to documents not admitted into the

12     record to impugn the statement of a witness, paragraph 185, footnote 474.

13     He also refers to the judgement in the first trial to seek to establish

14     issues relevant to this trial, such as whether there was a policy in the

15     KLA to target collaborators.  That's paragraph 175, footnote 446.

16             We say that these references to out-of-court statements,

17     unadmitted documents, and prior findings of a different Chamber where

18     those issues are before you to determine should be ignored.

19             Finally, in concluding my remarks relating to the assessment of

20     evidence in general, we respectfully remind, very respectfully remind

21     Your Honours that it is not every disputed fact that needs to be

22     resolved, only those that are material to the determination of the

23     accounts arising on the indictment before you.  Your Honours will of

24     course bring all of your collective experience of the world into the

25     retiring room when assessing the evidence of these witnesses and in

Page 2784

 1     making your findings on whether the Prosecution has discharged the heavy

 2     burden upon it.

 3             Your Honours, I turn now to my remarks concerning the

 4     responsibility of the accused under joint criminal enterprise.

 5             Your Honours, dealing first with Lahi Brahimaj.  In our

 6     submission, on the totality of the evidence, he was at the centre of the

 7     organisation of KLA activities based in and from Jabllanice.  Known as

 8     Commander Maxhup, he was the commander of the oldest KLA headquarters in

 9     the Dukagjin area, based as it was at his family seat in Jabllanice.

10     Together with other family members, including Nazmi and Naser Brahimaj,

11     Lahi Brahimaj administered his own particular brand of justice.

12             Lahi Brahimaj, we submit, ran the prison as a place of

13     mistreatment and abuse.  There, he routinely interrogated prisoners,

14     accusing them of being traitors and spies, and indulged himself in their

15     brutal beatings and terrorisation with others using sticks and other

16     objects, fists and boots.  It was he who ordered and/or instigated the

17     execution of the three young men.  It was he who encouraged others to

18     indulge in the torture and mistreatment and murder of detainees at his

19     prison, both directly and by setting an example for them to follow, and

20     by failing to intervene to stop the brutality.  For further details of

21     Brahimaj's contributions, we direct you to paragraphs 235 to 239 of our

22     brief.

23             Witness 3, Witness 6, and Shefqet Kabashi and the protected

24     witness all confirm Lahi Brahimaj's near constant presence in Jabllanice

25     and involvement in the many beatings of prisoners.  Witness 6 stated that

Page 2785

 1     he was detained for six weeks between about mid-June and the 25th of

 2     July, 1998, and said, "Two days would not pass without seeing

 3     Lahi Brahimaj there."  That's P84, transcript 5218.  Witness 75 confirms

 4     Lahi Brahimaj's regular presence at the detection facility, and in the

 5     face of the numerous occasions when eye-witnesses saw him at Jabllanice

 6     during the indictment period, Your Honours can safely and properly reject

 7     any alibi defence as continues to be advanced by him.  And for further

 8     details, we refer you to paragraph 23 of our brief.

 9             Idriz Balaj was the commander of the feared Black Eagles.  He was

10     also a regular visitor to Jabllanice.  Witness 75, Shefqet Kabashi, and

11     the protected witness collectively confirm his presence on many occasions

12     during the indictment period.  He, together with Lahi Brahimaj, other

13     members of the Brahimaj and other KLA soldiers savagely beat and tortured

14     Ivan Zaric, Agron Berisha and Burim Betja and ordered their murder.  As a

15     senior commander, his behaviour and failure to prevent such brutal crimes

16     acted as an encouragement and support for others to commit crime.

17             Many witnesses including Stijovic, Witness 77 and Shefqet Kabashi

18     and others - and we direct you for detail to our brief at paragraphs 16

19     to 19 and 80 to 84 - confirm Balaj's reputation for excessive violence.

20     Witness 77 and Witness 29, FARK soldiers, could testify first-hand about

21     his extreme violence. (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted).  Fellow Jabllanice

Page 2786

 1     KLA soldier Kabashi also confirmed Balaj participated in the beating of

 2     detainees at the Jabllanice headquarters, as he put it, whenever he

 3     attended.

 4             Your Honours can safely reject the suggestion by Balaj that he

 5     could not have been at the prison.  The fact he may also have been

 6     engaged in combat operations does not mean he could not have been present

 7     on occasions at the Jabllanice camp.  The evidence of Shefqet Kabashi,

 8     the protected witness, and Witness 75 all confirm that Balaj was seen

 9     there.  Where Ylber Haskaj suggests otherwise, he has a clear motive to

10     give Balaj a favourable account given his close relationship to Balaj,

11     and that relationship is identified at P40, paragraph 29, where he

12     describes the respect he had for Balaj during the war, that he still has

13     a lot of respect for him, that he visited him regularly whenever he had

14     the chance, and kept in touch with him, As he calls me, he said, from

15     The Hague every so often.

16             Your Honours, for further details as to Mr. Balaj's

17     contributions, we refer you to paragraphs 229 to 234 of our brief.

18             Haradinaj and Balaj worked closely together, were seen on many

19     occasions as demonstrated by the FARK related incident, the confrontation

20     between Ramush Haradinaj, Idriz Balaj and FARK soldiers at the Prapaqan

21     Barracks.  And we direct you to our brief at paragraphs 80 to 84.

22     Together with Balaj's presence in Jabllanice on the 23rd, 24th of May

23     with Ramush Haradinaj when Lahi Brahimaj spoke to the Grabanice

24     villagers.  In addition, it was Balaj -- forgive me.  In addition, it was

25     Balaj who transferred to Glodjan before the Black Eagles were formed in


Page 2787

 1     April 1998, and indeed they were together seen by many witnesses

 2     throughout the indictment period.

 3             May we briefly go into private session.

 4             JUDGE MOLOTO:  May the Chamber please move into private session.

 5                           [Private session]

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17                           [Open session]

18             THE REGISTRAR:  Your Honours, we're in open session.

19             JUDGE MOLOTO:  Thank you very much.

20             Yes, Mr. Rogers.

21             MR. ROGERS:  Your Honour, Rrustem Tetaj confirmed that Balaj was

22     present when he, Tetaj, first met Ramush Haradinaj in April 1998 -

23     that's P76, T3620 - and when the regional staff in Glodjan was formed

24     towards the end of May 1998.

25             All of this is consistent, the observations, in our submissions,

Page 2788

 1     of the protected witness and others of them together at Jabllanice.

 2             Your Honours, it's clear that throughout Ramush Haradinaj

 3     commanded a respect among his peers and amongst the population that

 4     carried with it great authority.  For it is only from respect that

 5     authority flows.  Strict military hierarchies were not in place at this

 6     time and thus it was through defence and popular respect that authority

 7     existed.

 8             This is all that is required to establish his authority, a

 9     recognition that the person giving instructions has sufficient gravamen

10     to command respect that the instructions will be carried out.  At the

11     very least, it is a position of significant influence from which

12     encouragement or discouragement for a particular course of conduct can be

13     derived.

14             Formal command is not a necessary ingredient to establish a

15     significant contribution to crimes committed with a shared intent.  All

16     that is required is a shared intent, a plurality of persons, and a

17     significant contribution.  Your Honour, those contributions concerning

18     Ramush Haradinaj are set out in our brief at paragraphs 205 to 237.

19             Your Honours, may we go into private session briefly.

20             JUDGE MOLOTO:  May the Chamber please move into private session.

21                           [Private session]

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 2789

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15                           [Open session]

16             THE REGISTRAR:  Your Honours, we're in open session.

17             JUDGE MOLOTO:  Thank you, Mr. Registrar.  Yes, Mr. Rogers.

18             MR. ROGERS:  Your Honours, Ramush Haradinaj, the nephew of

19     Lahi Brahimaj and a key member along with Lahi Brahimaj of the fledgling

20     KLA groups in the Dukagjin area, was a highly respected leader based in

21     Glodjan.  This respect had crystallised at the time his family compound

22     was attacked in Glodjan in March 1998, where after an intense fire-fight,

23     he managed to stand against significant Serbian pressure.

24             Skender Rexhametaj put it this way in transcript 1097, he said:

25             "Based on the resistance that he put up with his family, the


Page 2790

 1     incident had a lot of echo in the whole country, and Ramush, as a result

 2     of that, was widely respected for this resistance that he put up in

 3     protecting his family and his village.  And with the passage of time in

 4     fact, he became famous.  Everyone, most of the people knew him and had a

 5     lot of respect for him because as I said, he put up that resistance and

 6     protected his family and his village."

 7             He went on:

 8             "As so, on the basis of what I just said, people respected him,

 9     and if you are respected, you enjoy authority.  I don't mean here legal

10     authority, but the authority of a person who was successful in protecting

11     his family and his village and his people.  This is my line of thinking."

12             His reputation throughout the area was well established by

13     April/May 1998.  Witness 6 -- Witness 76 described him as the

14     Lord of Dukagjin.  Others described the awe with which he was held in

15     such glowing terms as "Ramush on earth, God in heaven."

16             The esteem with which he was held was clear for all to see.  The

17     military-trained commanders of the subzones that formed in May 1998

18     elected Ramush Haradinaj as their leader.  While they were also willing

19     to adopt Mr. Emmerson's prompting that the structures were horizontal and

20     more of a blueprint, the reality is that these seasoned officers

21     determined that Haradinaj should lead, a man with considerably less

22     military training and experience than they had.  In our submission, this

23     reflects the deep respect shown by both the civilian population and the

24     military leadership towards Ramush Haradinaj.

25             Your Honours, in our submission Ramush Haradinaj shared the

Page 2791

 1     intent with Lahi Brahimaj and Idriz Balaj to cruelly treat, torture and

 2     murder those opposed to the KLA.

 3             The three accused worked together with ear local commanders to

 4     free Kosovo of what the KLA called the occupier.  Inevitably, that

 5     involved eliminating opponents and those supporting them with the

 6     ultimate aim of securing territory and the control of territory of

 7     Kosovo.  In this area, this included the area identified in the

 8     indictment as the Dukagjin Zone.  These aims were to be implemented, the

 9     Prosecution says, at least in part through crime.

10             That Ramush Haradinaj intended the use of criminal means to

11     achieve these aims is clear from his support and encouragement of the

12     actions of his relatives and others in Jabllanice from the start and

13     furthered by his own actions when consolidating command of the entire

14     area in June 1998.  One of his first actions towards the end of June 1998

15     was to continue this strategy by issuing regulations containing

16     instructions to the military police, the only so-called law enforcement

17     arm of the KLA, an organisation acting outside of any recognisable legal

18     structure.  An organisation Ramush Haradinaj ordered was to be manned by

19     those of pure national commitment.  Your Honours will see the full

20     details in P349 and P190.  It was those purists who were instructed to

21     "take measures against all those working under the Kosovo Liberation --

22     against the Kosovo Liberation Army and investigate and uncover with

23     persuasive facts all those persons who collaborate in any way with the

24     enemy."  That's a quote.

25             Your Honours will recall that the MP was in existence before

Page 2792

 1     those orders were issued in June, and we direct you to paragraph 62 to 68

 2     of our brief.

 3             In our submission, it is clear that Ramush Haradinaj continued

 4     the use of the MP to root out opposition and that this was part of an

 5     already established aim.  Rrustem Tetaj explained at P77, paragraph 29,

 6     that Faton Mehmetaj, who worked closely with Ramush Haradinaj during the

 7     indictment period and in May and June 1998 was based in the Glodjan

 8     headquarters.  He had circulated lists, blacklists, among the village

 9     guards.  In May 1998, Tetaj had been arrested and interrogated by

10     Mehmetaj and Pjeter Shala after his inclusion on such a list.  Shala had

11     been appointed to the MP by Lahi Brahimaj from the Jabllanice

12     headquarters.

13             This is another example of the close co-operation between the KLA

14     based in Glodjan and Jabllanice to pursue and target suspected

15     collaborators using Mehmetaj as part of the Glodjan Regional Staff under

16     Ramush Haradinaj and Pjeter Shala from Jabllanice under Brahimaj.

17             The clear aim to eliminate opposition was shared by

18     Ramush Haradinaj, Lahi Brahimaj and Idriz Balaj throughout the indictment

19     period.  Haradinaj's instructions to the police continuing the targeting

20     of suspected opponents, as did Ramush Haradinaj's instructions issues on

21     the 24th of June, 1998, to KLA commanders and population to "prevent any

22     activities that go to the detriment of our war" under pain of

23     imprisonment for operation to the order.  That's P196.  The fact that

24     blacklist were operating before the formal unification of

25     Ramush Haradinaj's command over both Glodjan and Jabllanice headquarters

Page 2793

 1     and that shared resources across the two commands were used to target

 2     opponents shows the unified ideal between the three accused and their

 3     shared intent.

 4             The activities which continued at Jabllanice throughout July 1998

 5     and attested to by Witness 3, 6 and the protected witness, amongst

 6     others, show what fate awaited those considered to be working against the

 7     KLA.

 8             Ramush Haradinaj was a regular visitor to Jabllanice throughout

 9     the indictment period.  Indeed from at least the 23rd of June, 1998,

10     Haradinaj had both de facto and de jure command of the Jabllanice

11     facility.  Lahi Brahimaj formally became his deputy.  The evidence from

12     the protected witness confirms that Haradinaj even before his formal

13     appointment in June as overall commander was in attendance at Jabllanice.

14     Due to the smallness of this place it would have been impossible to not

15     to know what was going on there.  Throughout the indictment period, there

16     were many persons detained and mistreated.

17             We know from the evidence of the protected witness that

18     Ramush Haradinaj was present in Jabllanice on or about the 23rd or 24th

19     of May, after the attack on Grabanice and when 20 or 30 Grabanice

20     villagers were also present.  At this time, Lahi Brahimaj, that's during

21     that meeting, Lahi Brahimaj was threatening those villagers that they

22     needed to fight or that there would be nowhere for them in Kosovo.  And,

23     Your Honours, on this occasion, according to the protected witness,

24     Ramush Haradinaj was introduced to the assembled villagers by name as

25     Ramush Haradinaj and that he was the commander of the Dukagjin area.

Page 2794

 1     Balaj was also there with Haradinaj.

 2             Your Honours, in our submission, the only reason he was there and

 3     was introduced to villagers from a village north of Jabllanice and

 4     further geographically away from Glodjan must have been to show the unity

 5     of the KLA, to display Haradinaj's important position of command and

 6     authority in the area, and to demonstrate visible support for his uncle

 7     and fellow KLA fighter, Lahi Brahimaj.  This is consistent with his

 8     important position of authority at that time.

 9             The fact that he had been appointed as commander of the

10     Dukagjin Regional Staff at this time is supported by the evidence of

11     Rrustem Tetaj, a subzone commander who was present at a meeting about the

12     23rd of May, 1998, when the subzones were formed and Haradinaj was

13     appointed as commander of the Glodjan Regional Staff which covered the

14     area of the Dukagjin plain.

15             Your Honours, I'm not suggesting that Jabllanice itself was part

16     of the Dukagjin Regional Staff at that time.  That came later.  But the

17     fact that he had been appointed as the commander of the Dukagjin Regional

18     Staff at around the 23rd of May, 1998, is a fact.

19             Your Honours, in our submission, it's a matter for Your Honours,

20     of course, in due course to determine whether this is the case, but in

21     our submission on the 23rd or 24th of May, the victims of count 1 must

22     also have been present in Jabllanice at the prison on the occasion of the

23     visit by Ramush Haradinaj.

24             We know from the protected witness that those victims were seen

25     in the Jabllanice prison a little time after that meeting on the 23rd and

Page 2795

 1     24th May and when - this is after his arrest from Bucan -- and were taken

 2     from the basement of the prison where they were detained.  Given the

 3     smallness of the location, the closeness of the family relationships, the

 4     close co-operation between Haradinaj and Lahi Brahimaj and the united

 5     aims of the accused to eliminate perceived opposition from the area, it

 6     is our submission that it is clear Ramush Haradinaj must have known that

 7     the victims were detained there.

 8             Given his important position of respect and authority, his

 9     nonintervention shows his support for the mistreatment and provided

10     encouragement for the perpetrators.

11             In his final trial brief, Ramush Haradinaj addresses the

12     occasions the protected witness saw Haradinaj.  Your Honours will recall

13     that the witness clarified he had seen Haradinaj several times, stating

14     he was commander there.  He confirmed the first time when he saw

15     Haradinaj with the other villagers present was in May, and we submit this

16     is the 23rd/24th May incident when Brahimaj was also introduce -- when

17     Brahimaj introduced Haradinaj as the Dukagjin commander.

18             In our submission, it is clear to this witness and no doubt to

19     the many others gathered there, including the Brahimaj family KLA

20     members, that Haradinaj occupied a sufficient -- significant position of

21     authority within the KLA and in the local area, especially given the

22     strong familial link to Jabllanice and Lahi Brahimaj in particular.  The

23     continuation of crimes at Jabllanice when Haradinaj was the commander

24     show that he continued to support the elimination of opposition through

25     unlawful means.  The direct role of Lahi Brahimaj and Idriz Balaj in

Page 2796

 1     those crimes demonstrates their commitments to achieve the common

 2     objective.  The clear encouragement of those crimes by Haradinaj is

 3     shown, inter alia, by his adoption of a policy to target suspected

 4     opponents and his failure to stop or punish anyone for their roles in

 5     crime especially in relation to the detention and mistreatment of the

 6     victims named in the indictment, including Skender Kuqi.

 7             For the moment, let's pause to think at the time that he saw

 8     Skender Kuqi, and it is accepted that he did and saw him at the prison

 9     facility.  Others, such as the protected witness, Witness 6, and

10     Pal Krasniqi were also detained there.  He cannot have failed to be aware

11     of them, especially as he had attended to deal with Kuqi, yet nothing was

12     done in relation to the remaining detainees.  No one was punished and

13     their detention continued.  Your Honours, we refer you again to our brief

14     at paragraph 205 to 228 for full details of the contributions we allege

15     against Mr. Haradinaj.

16             Your Honours, we, at this stage, refer you also to our brief for

17     details related to other modes of liability set out against each of the

18     accused as they are set out in full at paragraphs 248 to 266.

19             Finally, briefly, turning to sentence.

20             The Prosecution submits that for the role each accused played in

21     the commission of these crimes and having regard to their gravity, the

22     least sentence that should be imposed is one of 20 years' imprisonment

23     for each accused.  In relation to Lahi Brahimaj, Your Honours will no

24     doubt adjust that sentence to give appropriate credit for such time as

25     Your Honours think right to reflect the time that he has already served


Page 2797

 1     for the crimes for which he has already been convicted arising from his

 2     conduct at Jabllanice.

 3             Your Honours, those are our submissions.

 4             JUDGE MOLOTO:  Thank you very much, Mr. Rogers.

 5             Mr. Emmerson.

 6                           [Defence Closing Statement]

 7             MR. EMMERSON:  Your Honours, this is the first time that this

 8     Tribunal or any other international criminal Tribunal has held a full

 9     retrial on the totality of evidence that the Prosecution wished to call

10     after an accused person had been finally acquitted on evidence called at

11     an original trial, and it is a number of other respects a unique case as

12     well.  So before embarking on the detail of my submissions, I want, if I

13     may, just to say a little about how we got to the point at which we now

14     arrive.

15             It's more than seven years now since Ramush Haradinaj was first

16     indicted, and at the time, as Your Honours know, he was a serving

17     prime minister in the provisional institutions of self-government

18     established under the auspices of UNMIK, the United Nations Mission in

19     Kosovo.  He was widely regarded as an excellent political leader, one who

20     could unite Kosovo, secure the support of the international community and

21     critically one that was committed to the protection of the rights of

22     those pockets of Serb national minorities remaining inside Kosovo's

23     boundaries after the war.

24             As such, he represented a potent political threat to Serbia,

25     which was at that time uncompromisingly committed to preventing Kosovo

Page 2798

 1     from achieving secession and independence, and uncompromisingly committed

 2     to seeking the decapitation of its political leadership.

 3             It is widely and publicly known that high-ranking Serbian

 4     officials made forceful representations to the Office of the Prosecutor

 5     seeking to have Mr. Haradinaj prosecuted.  The crimes alleged against him

 6     in the original indictment were based upon a dossier of evidence

 7     collected by the Serbian intelligence service, the RDB itself, an

 8     organisation that was known to engage, as we shall show in the course of

 9     the closing submissions, in the basest methods of evidence manipulation.

10     Remarkable, as it may seem to those inside and particularly outside this

11     courtroom, the case against Ramush Haradinaj, a distinguished

12     prime minister and public servant, as it was advanced by the

13     Office of the Prosecutor at the original trial and as it has been

14     advanced here before this Trial Chamber, was and is based primarily on an

15     investigation conducted by the Serbian intelligence services themselves.

16             It is now a matter of public record that lawyers appointed to

17     advise Madam Del Ponte told her from the outset that there was no

18     sustainable case against Mr. Haradinaj and advised her not to indict him.

19     She has said so herself in her published memoirs.  She had to change her

20     legal team more than once before she could find a team that was prepared

21     to prosecute him, but in the end, she did.  She came up with a team that

22     was prepared to put up for examination the case that was said to exist

23     against Ramush Haradinaj.  But when the case came up for examination in

24     the first trial, it predictably fell to pieces.  I say predictably

25     because it had, in fact, had been predicted by the two teams of lawyers

Page 2799

 1     that she originally instructed to consider the case against him.

 2             Now, Your Honours may come to the conclusion having heard the

 3     evidence in this case and taking account of those passages of the

 4     evidence from the previous trial that have been admitted that some of the

 5     crimes alleged on this indictment, at least, were indeed committed.  You

 6     may conclude that some of the crimes were committed at Jabllanice.  But

 7     the issue as far as Ramush Haradinaj is concerned, and the only issue, is

 8     whether he participated, authorised, or condoned those crimes or was

 9     party to a joint criminal enterprise that they be committed.

10             There is no suggestion nor could there be on the evidence that

11     Ramush Haradinaj ever had day-to-day operational control over Jabllanice.

12     There is no suggestion nor could there be on the evidence that

13     Ramush Haradinaj ever committed any unlawful act at Jabllanice.  There is

14     no suggestion nor could there be on the evidence that he was even ever

15     present at Jabllanice whilst any of the crimes alleged on this indictment

16     or any other crimes took place.

17             Against that background, I'm going to make the bold submission

18     that no one who's been present during the course of this partial retrial

19     can honestly be in any real doubt about what the right verdict is in the

20     case of Mr. Haradinaj.  It's been clear to everyone from the very start

21     that the Prosecution case against Mr. Haradinaj depended upon two key

22     witnesses.  There were two central pillars to the Prosecution case:

23     Witness 81 and the witness that I shall describe as Witness X; namely,

24     the witness described by Mr. Rogers as the protected witness.  But since

25     both were, in fact, protected, the two core witnesses right at the heart

Page 2800

 1     of the Prosecution's case were Witness 81 and Witness X.  Mr. Rogers

 2     himself repeatedly described them as crucial witnesses, the crucial

 3     witnesses, in the case against Ramush Haradinaj.  From the very beginning

 4     they were critical.  Without them, the case could not succeed.

 5             Both of them, of course, have the benefit of protective measures,

 6     so both were free to give evidence without fear, and both of them were

 7     relied upon by the Prosecution fulsomely and unequivocally from the

 8     outset in support of an allegation specified by the Prosecution as

 9     central to its case that Mr. Haradinaj was both present at and directly

10     participating in the dreadful crimes that form the basis of Count 1 on

11     the indictment, the disfigurement and murder of three teenage boys.

12     Critical to the Prosecution's case.

13             Your Honours will recall that when I opened the case to you, I

14     predicted that there was simply no way that this evidence would stand up.

15     No way.  Because, in the end, the man who sits behind me in this room is

16     an honourable man, and an honourable man would not stand there and do

17     nothing whilst crimes of that disgusting nature were carried out before

18     him.  So I suggested to you that there was no way the evidence would

19     stand up and so it proved to be.

20             Witness 81 came willingly to The Hague.  Indeed, it looks very

21     much as though he was pushed here by the Serbian authorities with great

22     enthusiasm.  Yet another product of a Prosecution decision to rely on the

23     Serbian intelligence service to prosecute proceedings against a

24     prime minister democratically elected in an emerging independent Kosovo.

25             His evidence when it came was so appallingly dishonest, so

Page 2801

 1     demonstrably fabricated in every detail that he spent five days twisting

 2     and turning like a snake on a stick.  It was a painfully compelling

 3     performance for all those who saw it both inside and outside the

 4     courtroom.  It was gripping to watching.  A witness so dripping with

 5     lies, so slippery with the slime of dishonesty that one felt the needed

 6     to wash one's hands during a break in his evidence.  It makes the blood

 7     run cold to think that a witness who is willing to lie so easily, so

 8     repeatedly and with such elaborate detail could be relied upon by a

 9     responsible prosecutor as the cornerstone of its case.

10             No surprise then that Mr. Rogers took, in the end, the position

11     that he did today.  This then was the Prosecution's first star witness

12     against Mr. Haradinaj, half the case against him.  And before I start,

13     said Mr. Rogers, I want to make it clear, as though it were simply one of

14     a pack of 52 cards, that I don't intend to rely on the evidence of

15     Witness 81.  I invite the Chamber to ignore the evidence as unreliable

16     and treat it as though it wasn't part of the record.

17             But it was part of the record, Mr. Rogers, because you chose to

18     call it.  You chose to call a witness to base this prosecution on and

19     hold a man in custody for whose evidence was so obviously false that

20     you've been driven to abandon any reliance at all upon him despite the

21     enormity and the gravity of the claims that he made.

22             MR. ROGERS:  Your Honours, it's entirely inappropriate to make

23     such personal and direct remarks to counsel in the course of closing

24     submissions or at all, and I would ask Mr. Emmerson to stop it.

25             MR. EMMERSON:  I'm sure Mr. Rogers would prefer it wasn't put in


Page 2802

 1     the way that it was, but he needs to take responsibility for a

 2     prosecutorial decision to rely on a witness who anyone could have seen,

 3     having proofed him as Mr. Rogers personally did, was wholly unreliable.

 4     How long did it take Your Honours to realise that this witness was

 5     entirely unfamiliar with the basic precepts of the truth.  And yet

 6     Mr. Rogers had spent days with him, and he made the decision to put him

 7     up as the - in his own words - crucial witness upon whom his case relied.

 8     So I'm sorry if he finds it difficult to hear those words, but they

 9     are -- it is his responsibility, and I do publicly and openly condemn him

10     for it.  It is not simply possible at the end of a case, casually in that

11     way, to say having based a case in the way that he did, on the

12     truthfulness of a witness he spent time with to say, Well, I'm so sorry.

13     This is a witness that we are simply going to cast aside and get on with

14     the rest of the evidence in the case.  Of course Your Honours need to

15     look at the rest of the evidence, so let's do that for a moment.

16             Witness X, the second star witness that Mr. Rogers intended to

17     call, intended to call to give evidence that Mr. Haradinaj stood by and

18     ordered the dreadful crimes in Count 1.  He did initially not want to

19     come to The Hague to give evidence in this trial, as he had not wanted to

20     come to The Hague to give evidence --

21             MR. ROGERS:  Your Honours, could we go into private session?  I'm

22     sorry to interrupt.

23             JUDGE MOLOTO:  May the Chamber please move into private session.

24                           [Private session]

25   (redacted)

Page 2803











11 Pages 2803-2806 redacted. Private session.
















Page 2807

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 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23                           [Open session]

24             THE REGISTRAR:  Your Honours, we're in open session.

25             JUDGE MOLOTO:  Thank you so much, Mr. Registrar.


Page 2808

 1             Yes, Mr. Emmerson.

 2             MR. EMMERSON:  Moving then to the second star witness that

 3     Mr. Rogers identified as crucial to his case and as essential to the core

 4     allegation that Mr. Haradinaj was present at and participated in the

 5     crimes alleged under Count 1.

 6             As Your Honours know, the witness we are calling Witness X did

 7     not want to come to The Hague to give evidence.  And so after making

 8     various attempts to secure his evidence, the Trial Chamber and all of the

 9     lawyers in the case travelled to a remote location in order to hear his

10     testimony.  After some hesitation, he gave his account.  He described the

11     crimes that were the subject of Count 1 and Count 6 on the indictment in

12     some detail, and he said that Ramush Haradinaj had nothing to do with

13     either of them.  He stressed repeatedly that whatever the Prosecution may

14     have recorded in various inconsistent statements that he had signed,

15     statements which were not and never have been admitted in evidence, the

16     account that he was giving on oath to the Trial Chamber was the truth.

17             He was clearly not shy about making allegations about the

18     commission of crimes at Jabllanice or about naming senior members of the

19     Kosovo Liberation Army.  He made serious allegations on oath against

20     Mr. Balaj, Mr. Brahimaj, and others whom he named.  It is not for me to

21     answer or comment upon those allegations.  That is for others.  But as

22     far as Mr. Haradinaj was concerned, his evidence was clear and

23     consistent, and Mr. Rogers is driven to and does accept it.  He never,

24     that is, Witness X, never saw Mr. Haradinaj present on any of the

25     occasions at Jabllanice when he saw crimes being committed, and he never

Page 2809

 1     even claimed to have seen Mr. Haradinaj enter the compound in which it is

 2     alleged that those crimes occurred, having seen him only in a named

 3     building in the centre of Jabllanice.

 4             He once caught a glimpse on around the 23rd, 24th of May of

 5     Mr. Haradinaj, he said, at the KLA HQ in Jabllanice.  But according to

 6     his evidence, if we fix that at around the end of May, it is clear that

 7     he was -- and he told Your Honours, he had no direct contact with

 8     Mr. Haradinaj.  Mr. Haradinaj was so surrounded by people that he could

 9     barely see him, that he had no knowledge of what Mr. Haradinaj was doing

10     there, but not that he was introduced as the commander as Mr. Rogers

11     suggested, for he wasn't the commander of Jabllanice or on any view.  And

12     indeed Jabllanice wasn't incorporated into a joint command, but, rather,

13     that Lahi Brahimaj told Witness X that the man in the centre of a crowd

14     was Ramush Haradinaj, and that is it in relation to the first occasion.

15             As to the second occasion, he says he once saw Mr. Haradinaj

16     remonstrating with Lahi Brahimaj about the ill-treatment of Skender Kuqi.

17     I'll come back to this in more detail later on, but Witness X could see

18     after Mr. Kuqi's injuries had been inflicted that Mr. Haradinaj arrived,

19     that there was a problem between Mr. Haradinaj and Mr. Brahimaj, and that

20     he said he saw Mr. Haradinaj was very concerned about what had happened

21     to Skender Kuqi, and he said he saw that Mr. Haradinaj was pressing

22     Lahi Brahimaj to provide an explanation, saying to him, "Why did you do

23     that to him?"

24             Well, if that's true and the Prosecution advances this witness

25     unqualified in their terms as a witness of reliability and truth, and

Page 2810

 1     what's more, in this respect, in that important detail of intervening to

 2     remonstrate about the injuries inflicted to Skender Kuqi, he is

 3     corroborated in detail by entirely independent evidence from another

 4     witness, Rustem Tetaj, who was also present and whose testimony I'll come

 5     to later on, so if it is true then it is hardly, Your Honours may think,

 6     the response of a commander who was party to a joint criminal enterprise

 7     to mistreat and kill detainees at Jabllanice.  It wouldn't even sustain

 8     an allegation of command responsibility for it would involve an

 9     intervention of precisely the kind that a commander in a loosely

10     connected army of this kind would be expected to make.  So, in fact, the

11     evidence proves quite the reverse of the Prosecution's theory.

12             So that then is the evidence and the only evidence in relation to

13     Mr. Haradinaj given by the Prosecution's second star witness, the two

14     central pillars of their case.  Insofar as it's relied upon to prove a

15     case against Mr. Haradinaj have simply fallen away as a result of their

16     formal decision to abandon Witness 81, coupled with the fact that

17     Witness X eventually came and told the truth about Ramush Haradinaj, the

18     Prosecution's primary case theory has entirely collapsed.  You didn't

19     perhaps pick up a hint of that in Mr. Rogers' closing submission.  He

20     didn't apologise or indicate the entirety of the way he put his case had

21     fallen away.  He now wished to fall back upon an entirely alternative,

22     speculative joint criminal enterprise case theory based on stitching

23     together a lot of inconsistent evidence from Witness X about dates and

24     tried to persuade Your Honours to draw inferences from that.

25             The fact is Prosecution have been driven to abandon the key

Page 2811

 1     allegation that was the cornerstone of their case against Mr. Haradinaj,

 2     that he was present at and participating in the dreadful crimes that form

 3     the basis of Count 1.  And as we all know, had he been, that would have

 4     provided ample evidence for convicting him on a joint criminal enterprise

 5     basis.  For anyone who was prepared as a commander to stand by and watch

 6     that happening would necessarily be condoning that conduct.  But there is

 7     not a shred of evidence that that is what happened, and indeed the

 8     evidence called by the Prosecution proves quite the reverse.

 9             So despite Mr. Rogers's attempt to fall back on a nebulous and

10     ill defined allegation that Mr. Haradinaj participated in some

11     unspecified way in a joint criminal enterprise to commit crimes when he

12     wasn't even there and there is no evidence that he knew about them with

13     the exception of Skender Kuqi when he intervenes, Mr. Rogers has --

14     despite that, Mr. Rogers has, in effect, conceded in his written brief

15     that the evidence is consistent with Mr. Haradinaj's acquittal.

16             At paragraphs 202 and 243 of the Prosecution closing brief, they

17     put an alternative thesis, an alternative analysis of their own case and

18     the evidence upon which they rely which is the proposition that the

19     evidence demonstrates, say the Prosecution, beyond reasonable doubt that

20     Mr. Brahimaj and Mr. Balaj participated in a joint criminal enterprise

21     with other members of the Brahimaj family and other KLA soldiers to

22     commit the crimes on this indictment but without Mr. Haradinaj being a

23     party to the agreement.  In other words, the Prosecution is suggesting,

24     and the words are clear, as an alternative to its main case, that

25     Mr. Haradinaj is not guilty.  Paragraphs 202 and 243.

Page 2812

 1             Well, that concession is inevitable, and it is correct, but it

 2     can also be seen as an implicit acknowledgement by the Prosecution that

 3     the verdict in Mr. Haradinaj's case too is close to inevitable.  For how

 4     can the Prosecution say to you that the evidence is consistent with that

 5     proposition and yet say to you at the same time that they can prove his

 6     guilt beyond reasonable doubt?

 7             Your Honours, at the end of the first trial, the Prosecution case

 8     against Mr. Haradinaj was fatally wounded, and the Trial Chamber on the

 9     evidence they had before them rightly acquitted him.  At the end of this

10     retrial, though, the Prosecution case isn't just fatally wounded.  It is

11     finally, thankfully, and to the relief of many in Kosovo, dead in the

12     ditch.

13             It doesn't necessarily follow from that that the order or the

14     fact of having had a retrial was wrong.  It has, of course, prolonged the

15     agony of uncertainty for Mr. Haradinaj and his family.  It has, of

16     course, deprived him of his liberty for a very, very long time and it has

17     deprived Kosovo of its most effective and unifying political leader

18     during a key period of it's history, which of course is exactly what the

19     Serbian authorities wanted to happen.

20             But it has at least served one important purpose in

21     Mr. Haradinaj's case, one very important purpose.  At the end of the

22     first trial, there were those, the same people who wanted him on trial in

23     the first place, who were not prepared to accept the verdict, we all know

24     it, it's common currency in the diplomatic community and in the judicial

25     community in international criminal courts.  Serbian officials and

Page 2813

 1     politicians repeatedly briefed the media and others to the effect that

 2     his acquittal had been secured unfairly, that relevant evidence had not

 3     been heard because witnesses had been intimidated, a view that started to

 4     gain serious currency in coverage of the case long before the

 5     Appeals Chamber came to consider it.  That at least can never and will

 6     never be said of this retrial.  This Trial Chamber has left no possible

 7     stone unturned.  The Prosecution has been allowed to call any witness it

 8     chose, and not just those who didn't turn up first time round but any

 9     witness they chose, and boy, have they taken advantage of it.

10             Every witness the Prosecution wanted to call was eventually heard

11     one way or another.  They were given repeated adjournments over many

12     months to secure testimony while defendants were in custody, to secure

13     testimony that they were having difficulty presenting.  The Trial Chamber

14     in this retrial has bent over backwards to accommodate the Prosecution to

15     the point of going literally to the ends of the earth in order to hear

16     the testimony of witnesses.  No one can criticise this retrial for

17     leaving evidence out of the equation.

18             When Mr. Haradinaj is found not guilty this time round, as he

19     surely must be, there will be no scope for the mischievous, for the

20     politically motivated to question the correctness of the verdict.  And

21     I'm going to ask you to make that clear in your judgement, to spell out

22     not just that the Prosecution has failed to prove its case, but to go

23     further and to spell out the undeniable fact that after what must have

24     been one of the most exhaustive examinations in the history of

25     international criminal law, spanning seven years and two trials and

Page 2814

 1     umpteen hopeless, twisted, bent witnesses, he's innocent, properly

 2     innocent, of the crimes of which he was charged.  The lie that

 3     Mr. Haradinaj was somehow complicit -- I'm sorry if Mr. Menon finds these

 4     submissions amusing, but it would be helpful and less distracting if he

 5     didn't smirk all the way through them.  The lie that Mr. Haradinaj was

 6     somehow complicit in the commission of war crimes has finally and

 7     permanently been nailed by this Trial Chamber by shining the light of

 8     truth into every single murky corner of the Prosecution case by hearing

 9     and testing the evidence of every single slippery witness that the

10     Serbian authorities handed over to the Prosecution which they, in their

11     supine approach, simply put on before the Trial Chamber in attempts to

12     secure Mr. Haradinaj's conviction.  The Tribunal has over the course of

13     two trials now with consistently independent Judges, frankly, an

14     observation that can't be made about the Prosecution, the Tribunal has

15     over the course of two trials exposed the truth.  The evidence leads

16     inevitably to the same conclusion as the conclusion that was reached by a

17     series of experienced Prosecutors inside the Office of the Prosecutor who

18     told Carla Del Ponte back in 2005 that there never was a case against

19     Ramush Haradinaj.  It didn't bother the Prosecution whether there was a

20     case or not.  Any old rubbish will do.  Witness 81, if you please.  What

21     a disgrace.

22             They told her, those who advised her at the outset, that the

23     evidence couldn't begin to show that Mr. Haradinaj committed or condoned

24     the commission of dishonourable war crimes against vulnerable prisoners,

25     that he conducted himself according to somewhat higher principles than

Page 2815

 1     that, believe it or not; that his popularity with the people of Kosovo

 2     was borne out of genuine gratitude for his courage and his efforts and

 3     sacrifices and those of his family in protecting a vulnerable population

 4     from the genocidal campaign of an ethnic cleansing Serbian Army; that he

 5     is loved in Kosovo and popular because of his qualities as a soldier --

 6             JUDGE MOLOTO:  May I interrupt you?  May I interrupt you?  May I

 7     suggest that you stop clicking with your pen because it -- thank you so

 8     much.

 9             MR. EMMERSON:  The point the Prosecution seeks to -- the

10     inference the Prosecution seeks to draw from the repeated references to

11     the population's loyalty to Mr. Haradinaj is that he's somehow a bully

12     that's managed to intimidate the entire population.  The reality, as I

13     shall seek to show through the testimony, is that he is a loved and

14     popular leader because of his qualities as a soldier and a politician.

15     You do not become a loved and popular leader because of your qualities as

16     a soldier if you are committing war crimes against vulnerable civilians.

17     And people know.  They know the difference.

18             Not every war hero is a war criminal.  Mr. Haradinaj was and is

19     an honourable man who fought an honourable war.

20             Your Honours, I see the time.  Would that be a convenient moment?

21             JUDGE MOLOTO:  It would indeed.

22             MR. EMMERSON:  Yes.

23             JUDGE MOLOTO:  Thank you so much.  We will take a break and come

24     back at quarter to 6.00.  Court adjourned.

25                           --- Recess taken at 5.14 p.m.

Page 2816

 1                           --- On resuming at 5.45 p.m.

 2             JUDGE MOLOTO:  Mr. Emmerson.

 3             MR. EMMERSON:  As Your Honours know, the indictment relates to

 4     the period during 1998 when the Kosovo Liberation Army was struggling to

 5     establish itself.

 6             During the first half of 1998, the KLA was made up of a small

 7     number of committed fighters like Mr. Haradinaj, together with an

 8     increasing number of ill-equipped and untrained part-time volunteers.

 9     The important point to emerge from the evidence is that the structure of

10     this fledgling organisation as it was described in the first trial by

11     Colonel Crosland, the military attache to the British embassy in

12     Belgrade, was essentially horizontal rather than vertical.

13             It's common ground that the Kosovo Liberation Army can't be

14     compared in any way to the command structure of a conventional military

15     force.  As Mr. Rogers put it earlier, strict military hierarchies were

16     just not in place.  And that, no doubt, is why the Prosecution has never

17     charged Mr. Haradinaj under the theory of command responsibility

18     reflected in Article 7(3) of the Statute, although you may have thought

19     that some of the submissions made, both in the closing brief and in oral

20     argument, come very dangerously close to a command responsibility basis

21     for liability.

22             The reality is that there was no effective command structure

23     operating at any point during the indictment period.  Most of those who

24     fought with the KLA were villagers who'd returned to their daily lives as

25     farmers or labourers when they weren't actively involved in the fighting.

Page 2817

 1     Soldiers by night, effectively, farmers by day.  They had no uniforms for

 2     the most part and insufficient weapons to go around.  As you've heard in

 3     relation to one village under attack by the Serbs, there'd be four men

 4     for every weapon being fired.  They had none of the modern technology of

 5     warfare and no effective communications systems.  This was a paradigm of

 6     asymmetric warfare in which increasing numbers of armed civilians, a sort

 7     of home guard, took up arms to defend their own villages and communities

 8     against the vast superior strength of the Serbian military.  There was no

 9     professional army on the Albanian side, no powers of conscription, no

10     general command of the sort that would be known in any conventional army,

11     no centralised authority.

12             In that context, Mr. Haradinaj as the man who had survived the

13     Serbian attack on the 24 of March was, in reality, the commander of those

14     who chose to follow him on any particular day.

15             For much of this retrial we have inevitably focused close up and

16     in dirty detail on what is said to have happened inside a small building

17     in walled compound in Jabllanice.  The crimes on this indictment are only

18     concerned with what happened within those four walls.  But in an attempt

19     to connect Mr. Haradinaj, a commander from the opposite side of the

20     Dukagini zone with those crimes, the Prosecution selectively relies on

21     items of evidence in order to paint what it says is a broader analysis of

22     command relationships within the KLA and Mr. Haradinaj's supposed

23     influence over those in Jabllanice.  And so in the course of my

24     submissions this afternoon, I'm going to pull back the focus of the

25     camera and take a wider-angle view of the conflict in Western Kosovo

Page 2818

 1     during the indictment period so that we can see how the crimes committed

 2     inside that small courtyard fit into the reality of what was actually

 3     taking place at just the same time across the other side of the Dukagjin

 4     region where Mr. Haradinaj was manning the real front line.

 5             A bird's-eye view is really the best way of exploding the myth

 6     that Mr. Haradinaj can be held responsible for crimes which he's no

 7     longer alleged to have participated in or even been present at, crimes

 8     committed inside a facility he's never been shown even to have visited

 9     and which was located miles away across very difficult terrain to

10     navigate, miles away from the front line where his headquarters were

11     located and where he was almost constantly engaged in trying to hold the

12     Serbian forces at bay.

13             JUDGE MOLOTO:  Did you say he was not never shown to have visited

14     it?

15             MR. EMMERSON:  Yes.  There is no evidence in this trial that

16     Mr. Haradinaj ever visited the compound in which prisoners at Jabllanice

17     were detained.

18             JUDGE MOLOTO:  I beg your pardon.  I misunderstood what you

19     meant.

20             MR. EMMERSON:  Yes.  That's a very important point, because --

21             JUDGE MOLOTO:  I thought you meant Jabllanice --

22             MR. EMMERSON:  No, no.  The only evidence is of him visiting the

23     KLA headquarters in the Brahimaj family house inside the village, not the

24     compound where prisoners were detained.

25             Can I then just -- just say a few words about the Serbian

Page 2819

 1     military campaign on the other side of the zone, and I say it for this

 2     reason, because although a lot of this evidence has been admitted in this

 3     trial, it's been admitted by agreement from the previous trial.  So it

 4     hasn't been played or read in the course of these proceedings and hasn't

 5     been the focus, if you like, of attention in the course of the case as

 6     it's been presented in hearings before Your Honours.  Can I just

 7     summarise the background and one or two of the key milestones so that we

 8     can see how the charges on the indictment fit in with what was really

 9     going on on the other side of the zone.

10             In the -- in the decade or so, if I just sketch in the political

11     background briefly, in the decade or so running up to the outbreak of

12     hostilities in the beginning of 1998, a number of different

13     Kosovar Albanian political parties emerged, and we've heard evidence,

14     even Your Honours have heard evidence about one of them, the

15     Democratic League of Kosovo, or the LDK, which was formed in 1989 under

16     the leadership of Ibrahim Rugova, and Your Honours have heard that the

17     LDK advocated a peaceful non-violent solution to Kosovo question through

18     dialogue with Belgrade.  It's of particular relevance in the present

19     case.  You remember one witness - and I'm not going to mention him in

20     open session, but it's a witness that's been referred to at various

21     points in closed session - told you that the population of his village

22     were predominantly supporters of Rugova's LDK and that it was for that

23     reason, he said, that they were disliked and punished by Lahi Brahimaj

24     and those at Jabllanice.  I simply point out that there is no evidence at

25     all that Ramush Haradinaj operating on the opposite side of the Dukagjin

Page 2820

 1     Zone regarded the LDK as his political enemies or opponents.  Indeed,

 2     when he was prime minister of Kosovo, he was in coalition government with

 3     Ibrahim Rugova's LDK.

 4             The other main political grouping in Kosovo at the time was the

 5     LPK, or Popular Movement for Kosovo, which advocated direct resistance to

 6     the Serbian state including armed insurrection, and it was through that

 7     organisation that pockets of armed resistance sprung up.  But it was not

 8     until the end of 1997 a few short months before the start of the

 9     indictment period, that the Kosovo Liberation Army made its first public

10     appearance in Kosovo.  It gives an idea of it's longevity.

11             By that time, President Milosevic and his supporters had resolved

12     to take the next step in their plan for Kosovo by destroying those

13     Albanian villages that were perceived to be the heartland of armed

14     resistance to the Serb regime.  And so at the beginning of 1998, as the

15     indictment period with which we're concerned commences, orders were being

16     issued from Belgrade to begin the implementation of that plan.

17             The first Serbian attacks occurred in late February and early

18     March 1998.  On the 28th of February, Serb forces launched an attack

19     without warning on two villages in the Drenica region, Qiroz and

20     Likoshan.  They fired indiscriminately at civilians using helicopters,

21     armoured military vehicles, mortars and machine-guns, and at the end of

22     the day, 26 Albanians including a pregnant woman had been killed, many of

23     them at very close range.  At least 12 of them were shown to have been

24     put to death after they had been arrested by the Serbian police.  So that

25     was the first milestone.

Page 2821

 1             On the 5th of March, just three weeks before the attack on the

 2     Haradinaj compound, Serb forces attacked the family found of a KLA leader

 3     Your Honours have heard of called Adem Jashari in Prekaz.  A police

 4     special forces shelled the Jashari family compound and then ground forces

 5     moved in and simply shot everybody who'd survived.  Fifty-eight people

 6     were killed including 18 women and 10 children under the age of 16.  And

 7     at about the same time, an attacked was launched on the nearby village of

 8     Laushe so that by the end of the day on the 5th of March, about 80

 9     Kosovar Albanians had been killed in those combined and very brutal

10     operations including not just women and the elderly but very young

11     children.  And it's immediately obvious the effect that that would be

12     likely to have on the Albanian citizens in the rural areas of

13     Western Kosovo.  And, indeed, the evidence that's been admitted from the

14     first trial makes it clear that an atmosphere of deep instability, fear,

15     uncertainty began to spread like fire through the communities that lived

16     in rural, remote locations that perceived themselves to be the next in

17     line for attack.

18             And that is the background to what took place three weeks later

19     on the 24th of March, 1998, in Glodjan which is, if you like, the first

20     major event at the start of our indictment period.

21             Serb forces moved in the days prior to the 24th of March on to

22     their next target, on to the Haradinaj family in Glodjan.  They were

23     going to be the next Jasharis, and Colonel Crosland who was in the area

24     at the time and who witnessed the build-up of Serb forces gave evidence

25     which Your Honours have admitted describing a massive influx of military

Page 2822

 1     police and army to the area surrounding Glodjan together with what he

 2     described as paramilitary thugs coming into the area.  It was clear to

 3     him, he said, that something big was about to happen and that the Serb

 4     forces were gearing up for another major attack.  And when it came on the

 5     mid-morning of the 24th of March, the Serb tactics were essentially the

 6     same as they'd been in Prekaz, but this time those in Glodjan were ready,

 7     and they, the Serb forces, expected -- sorry, encountered a fierce

 8     resistance from Mr. Haradinaj and his brothers.

 9             The Serb troops - and this is important for understanding one of

10     the threads in the Prosecution case - the Serb troops took up position

11     and opened fire on the Haradinaj compound from the property next door to

12     theirs, which is a farmhouse owned by their nearest neighbours, a Serbian

13     family in Glodjan who's familiarly name was Stojanovic.  It may be

14     familiar from the submissions that the Prosecution makes that what

15     happened to that family is somehow relevant to what happened in

16     Jabllanice.  And I'm going to return to say something about them and what

17     happened to them later in my submissions, because Your Honours have heard

18     that they were, some days after the 24th of March, attacked by the

19     villagers of Glodjan who believed rightly or wrongly that not only had

20     their home been voluntarily used to launch the assault on the village but

21     that the family had been passing information to the Serb forces to enable

22     them to launch this blistering operation.

23             When the shooting began, the evidence shows that the male members

24     of the Haradinaj family returned fire.  They moved, in fact, from one

25     window of their compound to another to create the impression that there

Page 2823

 1     were more of them than there were, and somehow managed to provide

 2     sufficient fire cover to enable the women and children of the family to

 3     escape via a back route and then succeeded in holding the Serb forces at

 4     bay until nightfall when they were able to escape themselves one by one.

 5             Mr. Haradinaj was very seriously wounded in the course of that

 6     attack.

 7             During the course of the day on the 24th of March, Serb forces

 8     were seen using heavy weapons in civilian areas, including a Praga

 9     30-millimetre cannon, armoured vehicles and military helicopters.

10     Paramilitary police entered the village, engaging in close fire-fights,

11     many civilians were rounded up and detained, large parts of the village

12     were destroyed and three local teenagers were killed by Serb forces as

13     they were fleeing to safety.

14             There were reports that are in the evidence before you that

15     school children were used by Serb forces as human shields and that one

16     elderly company was shelled in their home.  Simultaneously attacks were

17     launched by Serbs on the nearby village of Irzniq and these villages were

18     effectively left empty because the civilian population that -- those that

19     hadn't suffered casualties fled.

20             In the end, the Serb forces withdrew without managing to massacre

21     the Haradinajs the way they massacred the Jasharis.  And Mr. Rogers is

22     right when he says to you this morning that the survival of the Haradinaj

23     family, in the face of overwhelming odds quickly became a symbol for a

24     very frightened Albanian population, a sign that it was possible to

25     resist the Serbs and to win.  That is, he's right to say, the origin of

Page 2824

 1     the popularity that Ramush Haradinaj had with the people of the Western

 2     Kosovo.  He was for them a sign that there was hope, someone who was

 3     there, who was prepared to protect them against the Serbs.  And you'll

 4     hear in a short while by reference to actual testimony that was admitted

 5     from the first trial that the people of Western Kosovo loved him and

 6     still do.

 7             Your Honours, the failed Serbian attack on the 24th of March

 8     marked the first major milestone in the indictment period, but it was by

 9     no means the only military attack in Western Kosovo at that time.  The

10     most serious and sustained Serb attacks in the indictment region occurred

11     in the course of two major offensives between May and September.  The

12     first was towards the end of May and the beginning of June, and the

13     second was towards the end of July and the beginning of August.  There

14     was then a further offensive at the beginning of September.  And I'm just

15     going to say a word or two, if I may, about these, because they give you

16     a good picture of the military priorities of Mr. Haradinaj and others on

17     the front line on the western side of the Dukagjin region and also

18     because they're pretty important to evaluating the Prosecution's case

19     about what was really taking place on the ground.  You would have seen

20     constant references in the Prosecution's brief to this area being under

21     secure KLA control and it's important to subject that to some scrutiny.

22             Can we start, please, with the first Serbian offensive in the

23     second half of May and to put some of the evidence you've heard about

24     particular villages into context, and we have, for that purpose, a map

25     which I think is coming up now.  Your Honours can see the large blue area

Page 2825

 1     to the bottom is known as Lake Radoniq, and on the top left hand is Peje.

 2     And the main Peje to Gjakova road proceeds vertically on the -- just off

 3     the left-hand side of the screen.  So, essentially, in the second half of

 4     May, there were first of all some attacks on the western side of this

 5     road close to the Albanian border, but then Serb forces attacked a

 6     village called Grabanice which has been mentioned by Mr. Rogers this

 7     morning on the 19th and 20th of May.  Do we have Grabanice?  Great.  The

 8     date of that attack, the 19th and 20th of May, is an axis date for

 9     Your Honours because Mr. Rogers has tried to build quite an elaborate

10     case theory around it for reasons that Your Honours are aware of.

11             MR. ROGERS:  I don't want to interrupt, Mr. Emmerson.  Can I just

12     understand, is this an exhibit that's in the record?  If so, could you

13     give us the P reference, or is it -- or D reference, or is it one that

14     you're just using?

15             MR. EMMERSON:  [Overlapping speakers] I think it was in the

16     record from the first trial.  I'm using for the purposes -- and this is a

17     graph to illustrate the evidence that is in -- in -- in from the first

18     trial.  If we -- if it was admitted in the first trial then we need to

19     check whether it was admitted into the record in this trial, but it

20     doesn't make any difference for the purposes I'm using it for.

21             So 19th and 20th of May, attack on Grabanice.  Number of

22     civilians were killed before Grabanice fell to the Serbs and the local

23     population fled to seek shelters in nearby towns and villages and some of

24     them on the evidence went to Jabllanice.

25             By the 25th of May, Serb special forces attacked the villages of


Page 2826

 1     Lybeniq and Strelle and buildings were burnt in those attacks and 11

 2     villagers were killed.  And then on the 28th of May, Serb forces advance

 3     across territory south-west from Peje and launched attacks in the areas

 4     around Vranoq and Baran.  Now, those dates and those towns, Vranoq and

 5     Baran, are also highly significant.  Baran was later to become the

 6     location of the FARK barracks commanded by Witness 17.  Witness 17 was

 7     the commander of the FARK barracks at Baran and it's important because

 8     when we come to look at some of the documents that Mr. Rogers has relied

 9     upon, suggesting that they were KLA hit list, for example, they're in

10     fact documents that were compiled by Witness 17.

11             MR. ROGERS:  Sorry to interrupt.  I think we need to just briefly

12     go into private session.

13             JUDGE MOLOTO:  May the Chamber please move into private session.

14             Yes, Mr. Rogers.

15                           [Private session]

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 2827

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10                           [Open session]

11             THE REGISTRAR:  Your Honours, we're in open session.  Thank you.

12             JUDGE MOLOTO:  Thank you very much.

13             Yes, Mr. Emmerson.

14             MR. EMMERSON:  So that was the 28th of May attacks on Baran and

15     Vranoq.

16             Simultaneous attacks also occurred on the same day, for the

17     record, in Junik, in Cerrebreg, in Prejlep on the main -- at Peje-Gjakova

18     road and in Isniq and Rastavice.

19             Now, Your Honours, pausing there for a moment, throughout this

20     period of time May/June, the Serb forces were maintaining constant

21     pressure on all of the villages around Glodjan regularly shelling from

22     vantage points in three elevated positions to the south supported by

23     police paramilitary units who made forays into areas on the ground.  And

24     we're going to look at those three elevated points in a moment, but

25     essentially on this plan they are located in an arc around the southern


Page 2828

 1     end of Lake Radoniq.

 2             Before we look at those, Your Honours, the second major Serbian

 3     offensive was launched across the Dukagjin region at the end of July and

 4     the beginning of August.  The villages attacked at that stage included,

 5     again, Junik on the western side of the main road, Rastavice and Prejlep.

 6     On the 2nd of August Serb forces entered Jabllanice and took it.

 7     Gramocel was overrun on the 8th of August, and the villages of Shaptej

 8     and Rastavice fell to the Serbs on the 9th of August.  Serb forces then,

 9     and Your Honours can see that the location, Serb forces then moved in

10     towards Glodjan and Irzniq and took control of Glodjan itself overrunning

11     Mr. Haradinaj's defences on the 12th of August.

12             That date is important for two reasons:  The first is that the

13     Prosecution rely heavily in their closing arguments both written and oral

14     on the evidence of Achilleas Pappas a member of the European Union

15     Monitoring Mission or ECMM whose group of monitors were detained by KLA

16     soldiers in Irzniq near Glodjan on the 11th of August just as the Serb

17     forces were closing in.  They were detained because they had driven from

18     Pec directly alone and unarmed into the conflict zone around Glodjane, a

19     reckless decision on any view.

20             Mr. Haradinaj was called away from the front line to deal with

21     them.  And the Prosecution apparently rely on this indent to support an

22     allegation that Mr. Haradinaj had the propensity to mistreat civilians

23     and was therefore somehow more likely to have been part of a joint

24     criminal enterprise on the opposite side of the zone to deal with

25     detainees in Jabllanice in an unlawful fashion.  In fact, as I'm going to

Page 2829

 1     show Your Honours from the evidence of Mr. Pappas, what actually happened

 2     when Mr. Haradinaj arrived demonstrates as usual when looked at in detail

 3     quite the reverse of what the Prosecution suggests, because Mr. Pappas's

 4     evidence was that once Mr. Haradinaj arrived, even though he'd taken

 5     himself away from the front line to deal with a group of people who had

 6     irresponsibly driven directly into a conflict zone, he treated them with

 7     complete professionalism and gave them safe passage out of the area at a

 8     time when he must have been under unspeakable stress.

 9             So just to pause there for a minute.  I want now to just examine

10     those three positions that had been taken up by the Serb forces from the

11     23rd -- from the 24th of March onwards.

12             The evidence shows, and this is from Serbian military -- senior

13     Serbian military commanders who were stationed in that horseshoe that the

14     villages around Glodjan were under almost constant surveillance and

15     intermittent attack from the Serb forces stationed on these three

16     strategic peaks just a few kilometres to the south.  I'll just give you

17     their names.  They are Suka Babolloq, B-a-b-o-l-l-o-q; Suka Bitesh,

18     that's B-i-t-i-s-h or B-i-t-e-s sometimes; and Suka Cermjan,

19     C-e-r-m-j-a-n.

20             Now, to use the words of Branko Gajic who was the head of

21     military intelligence for the Vojska Jugoslavije, the VJ army, whose

22     evidence has been admitted from the first trial, the troops stationed on

23     these three areas of high ground near Glodjan were there to operate as "a

24     bone in the throat" of the KLA in the Glodjan area, a "bone in the

25     throat."

Page 2830

 1             So if we can just look at the positions that they were at.  So

 2     you see here the view from the Serb military position at Suka Babolloq

 3     and the conurbation that you can see towards the stop left of the picture

 4     is Glodjan or the Glodjan-Irzniq area.

 5             If we move on to see the view from Suka Bitesh, the next one as

 6     we travel eastwards, there were Serb forces also stationed there, and you

 7     can see their view of Glodjan and Irzniq in the distance towards the

 8     horizon.  And then figure 5, the next slide, will show you the view from

 9     Suka Cermjan on the other side of the lake with Glodjan and Irzniq

10     appearing again in the centre of the screen.  And, finally, figure 6

11     shows us the view from the south shore of the lake towards Glodjan, and

12     you can see Suka Bitesh on the opposite side of the lake, and so on.  So

13     you have these three elevated positions.  And as Your Honours can see --

14     if we can just go back, please, to figure 5 for a moment, as Your Honours

15     can see they provide the ideal strategic locations to enable the Serbian

16     military to effectively command the terrain with the ability to observe

17     all the movements in the area and to deploy both long-range artillery and

18     ground troops where necessary and there's ample evidence admitted from

19     trial one that that is what they did throughout the indictment period.

20             So as Mr. Gajic put it so graphically with his bone in the throat

21     analogy, the aim of the Serb military commanders with the troops

22     stationed at three high points was quite literally to choke the KLA in

23     the Glodjan area, to restrict their ability to operate, to make it very

24     difficult for them to move around the terrain and to pick them off if

25     they could be seen moving across country.  And that, Your Honours, is why

Page 2831

 1     you've heard that it was so difficult to travel between the front line at

 2     Glodjan and the village of Jabllanice where the crimes on this indictment

 3     took place, because while the distances were not huge, it was impossible

 4     to travel in daylight or by the main roads.

 5             And if Your Honour sees Glodjan and Irzniq, the route by which

 6     they would have had to travel would take them across the north end of the

 7     lake there, on the right side of the picture, going to the right, that

 8     is, eastwards, across the map with three horseshoe high-level

 9     surveillance points with high-powered vision equipment and long-range

10     weapons as well as fast rapid deployment paramilitary police forces

11     available to enter onto the ground the moment things moved.

12             So if it was necessary to get from Glodjan to Jabllanice or vice

13     versa, KLA soldiers would have to move slowly and with stealth to avoid

14     troops stationed on the high ground and Bizlim Zyrapi who gave evidence

15     before Your Honours and others from the previous trial told the Tribunal

16     how that would be done.  You heard the evidence yourself but now you can

17     see exactly why it was.  Generally journeys would be made at night.  They

18     would travel not on the main roads but side roads or sometimes just

19     across fields or rough terrain so that they wouldn't be visible and

20     they'd drive with the vehicle lights turned off.  So this wasn't a

21     journey anybody was going to make unless they had a very good reason for

22     making it, which perhaps you may think explains why it is that on the

23     evidence that's been adduced in this evidence Mr. Haradinaj is only shown

24     to have made that difficult journey to Jabllanice on four occasions

25     during the whole of the indictment period.  Four occasions in nine

Page 2832

 1     months.

 2             That begins to give you a frame of reference for the

 3     Prosecution's extravagant submission that he's somehow to be held

 4     responsible for things had a happened in Jabllanice outside his area of

 5     command, at a time when he went there, and when there's no evidence of

 6     him knowing of the events or turning a blind eye on any occasion.

 7             Can -- can -- can I just return now to give Your Honours a

 8     flavour of the intensity of the Serbian front line campaign that

 9     Mr. Haradinaj and others were actually contending with on the western

10     side of the Dukagjin region.

11             The pattern of the Serb attacks I've described in these

12     offensives was in each case essentially the same.  First of all, villages

13     would be surrounded by Serbian heavy artillery and armoured vehicles.

14     Just letting the transcript catch up.

15             There would then be a destructive phase of bombardment whilst

16     civilians remained in the village.  And then the notorious paramilitary

17     police would enter the area - this is all the villages around where

18     Mr. Haradinaj was based - on foot, shooting the survivors who'd remained,

19     looting Albanian property, killing livestock and setting fire to

20     everything from buildings and schools to haystacks.  These were

21     euphemistically called mopping-up operations.

22             In many instances, the villages were simply razed to the ground

23     and these Serbian operations were invariably characterised by the use of

24     indiscriminate and excessive force with no distinction between drawn

25     between combatants and civilians, the aim quite simply was to ethnically

Page 2833

 1     cleanse the area of its Albanian population and to destroy their villages

 2     in order to prevent their return.  That's what Mr. Haradinaj was doing.

 3             Can we look briefly at two passages of the evidence.  I've handed

 4     up to Your Honours a bundle of transcripts of evidence that I want to

 5     refer to directly.  But rather than simply read them out from the page,

 6     we've brought up for the screen the videos of the witnesses giving the

 7     evidence.  They're relatively short passages but they give you a flavour.

 8     And the first one is Colonel Crosland who describes what he saw in

 9     relation to the types of attacks that were taking place in

10     Western Kosovo.  So this is Exhibit P508, and if we can just play this

11     first short passage and then there's one other short passage for him to

12     play immediately after.  Just play one after the other, please.

13             MR. ROGERS:  Just inquire, before we do, whether the face is

14     distorted.

15             MR. EMMERSON:  It is.

16             MR. ROGERS:  Thank you.

17             MR. EMMERSON:  Colonel Crosland gave evidence with face but not

18     voice distortion, and that's how the passage appears.

19                           [Video-clip played]

20             "Q.  In one of your witness statements, you say this, and I

21     quote:  'I myself saw between 200 and 300 villages burnt throughout 1998

22     and into 1999.  Crops were just wantonly burned.  Businesses of all

23     sorts, for example, petrol stations and shops were looted, and within

24     towns like Decani, Pec, and Djakovica, the Albanian areas were completely

25     burnt out.  This included damage to mosques.  Some villages had been

Page 2834

 1     looted and burnt at least on three occasions, with the civilian

 2     population leaving and then returning once they thought it was relatively

 3     safe to come back.'

 4             "You've made statements other statements in other words saying

 5     much the same thing at various times.  Before you tell us about the

 6     civilian population leaving and come back, can you just summarise for the

 7     Judges how those operations were conducted and with which forces doing

 8     what?

 9             "A.  The initial statement about the 2 to 300 villages,

10     Your Honour, is made in several reports throughout 1998 and 1999 as a way

11     of trying to convince the international community and the various other

12     foreign powers who were interested that the behaviour of the Serbian

13     security forces was not acceptable to the situation that was in Kosovo

14     itself.  The words of ethnically cleansing were not -- I was not allowed

15     to use because ethnic cleansing has a legal connotation which I'm sure

16     the Court is far more well aware of than I am.

17             "Q.  I'm not asking you to use it.  I'm just asking you to

18     describe what you saw.

19             "A.  But, I saw, as set out in that paragraph, exactly what

20     Mr. Emmerson has read out.  I don't think I can say any more than that.

21             "Q.  Who was -- which troops were involved and what were their

22     roles in the -- the destruction and the burning and looting of the groups

23     that we have described, VJ, SAJ, PJP, JSO, paramilitaries?  Who was doing

24     what when you were in Kosovo?

25             "A.  All of these formation were involved in -- in destroying and

Page 2835

 1     destruction of both villages, businesses, crops, houses, and mosques,

 2     et cetera.

 3             "Q.  Did you see properties being looted?

 4             "A.  Yes, I did, sir.

 5             "Q.  And who would be doing the looting, men in uniform, or men

 6     out of uniform?

 7             "A.  The ones that I saw were men in uniform.

 8             "Q.  And what sort of things were they taking out of people's

 9     houses?

10             "A.  At Rakovina, on the road up from Djakovica I saw a PJP with

11     a wheelbarrow with a television in it.

12             "Q. And then when they'd looted the houses, was it after that

13     that they would burn them down?

14             "A.  This was not an ongoing purpose.  Sorry, this was an ongoing

15     project of most operations, and when challenging the Vojka Jugoslavije

16     rumour, I'm not accredited to the MUP --

17             "Q.  Yes.

18             "A.  I mentioned this fact on several occasions in 1998 to

19     General Ojdanic in particular and other people, that the behaviour of the

20     Serbian security forces was only driving the Albanian population into the

21     hands of the Kosovo Liberation Army, whether they wanted to go or not.

22     And the behaviour of many troops, myself and my colleagues on several

23     occasions, were actually fired at by Serbian security forces.

24             "Q.  And, again, just to get the flavour of this absolutely

25     clear, did you see animals shot and crops and animal feed stacks being

Page 2836

 1     burnt and destroyed?

 2             "A.  Yes, I did.

 3             "Q.  What did you understand to be the purpose of killing the

 4     animals and destroying the feed for the winter?

 5             "A.  Well, you just mentioned the word 'winter,' and during as

 6     the 1998 proceeded, when more and more people, Albanians primarily but

 7     also Serbs as well, were being driven from their homesteads, then

 8     obviously the problem would be how these -- these people would survive

 9     the winter when the homesteads had been burnt, their crops had been

10     burnt, and their animals had been killed."

11             MR. EMMERSON:  There's one other very short passage from

12     Colonel Crosland that I'd like to play, please, which is listed in the

13     index to your transcript bundle as tab 2.  It's Exhibit P508.

14                           [Video-clip played]

15             "Q.  Can I just put one rather more specific proposition to you

16     and ask you to comment on that.  I think you've said at various times

17     that the role of the VJ in these joint operations would be to provide

18     shelling cover, in other words, a destructive phase of bombardment before

19     the burning started, although I think you'd also said that certainly

20     later on there were VJ officers on the ground joining in the burning; is

21     that right?

22             "A.  Unfortunately, that appears to be correct.  Through --

23     through the majority of, as I understand it from what I saw in 1998,

24     indirect fire was provided by Vojka Jugoslavije tanks and artillery to

25     MUP operations, but sadly in 1999, when we of moved out because of the

Page 2837

 1     NATO bombing, it appears that the Vojka Jugoslavije was then involved in

 2     other more direct forms of action.

 3             "Q.  I think you told us yesterday, and it may be that you

 4     corrected yourself or it was in error, and, if so, then now is the time

 5     to say so, I think you told us yesterday that when you were driving

 6     through Prilep and Irzniq on the way to the canal, the destructive

 7     operation that you saw taking place then was being jointly conducted on

 8     the ground by VJ and MUP forces.  Does that accord with your

 9     recollection?

10             "A.  I think the -- yes, that's correct, sir.  I think there were

11     tanks there that were doing destruction as well, yes.

12             "Q.  Yes.  Now, coming back to my question, could the VJ's

13     involvement in these types of operations have occurred without the

14     authority of Bozidar Delic and Dragan Zivanovic?

15             "A.  In my opinion, no.

16             "Q.  Thank you."

17             MR. EMMERSON:  Bozidar Delic and Dragan Zivanovic of course were

18     the VJ commanders stationed in the area, one of whom was responsible for

19     the deployment of the troops on the three areas of high ground that we

20     have looked at.

21             When Colonel Crosland describes that joint VJ PJP looting and

22     burning operation in Prilep and Irzniq that he saw, those of course are

23     the villages either side of Glodjan, and you'll see when you look at his

24     testimony in detail that they've been razed literally to two inches from

25     the ground.

Page 2838

 1             So that -- that's the kind of operation that Mr. Haradinaj was

 2     contending, but I said a little earlier on that the day that Mr. Pappas

 3     and his group of ECMM monitors were briefly detained that Mr. Rogers

 4     seeks to rely upon in this case, the Serb forces were drawing in on

 5     Glodjan and Irzniq ready to launch the final offensive by which Glodjan

 6     fell to the Serbs on the 12th of August, and that -- that ultimately

 7     forced Mr. Haradinaj to abandon his headquarters in Glodjan on the 12th

 8     of August and ultimately forced him to resign as commander of the

 9     Dukagjin Zone for a period of time in favour of Tahir Zimaj who was then

10     the FARK commander.

11             Your Honours, on that day, the 11th or 12th - well, on the 12th

12     in fact - a BBC film crew was in Glodjan and Irzniq as it happens at the

13     very time that the Serb forces took control of the area and they captured

14     footage of the Serb assault.  And the broadcast I'm just about to play to

15     Your Honours gives you a vivid picture without having to paint it in

16     words of the kind of military engagement that was taking place, and this

17     was the situation that Mr. Pappas and his group were driving directly

18     into on the 11th of August.  Could we please a play the BBC video and

19     Your Honours have a transcript of it as do the interpreters in tab 3, is

20     it, with reference D97.

21                           [Video-clip played]

22              "The Serbs know that they have the upper hand and they're

23     determined to press home the advantage.  This time it was the village of

24     Glodjan in flames shelled and machine-gunned into submission.  On the

25     other side, the KLA allowed us exclusive access to their new front line.

Page 2839

 1     They're nervous but determined.  Some of these men come from this

 2     village.  They know what's happened up ahead, and that they now lie

 3     directly in the path of the Serb offensive which has already removed the

 4     rebel fighters from most of their strongholds in Kosovo.  The waiting is

 5     tense.  But already it's clear that they won't have to wait long.  The

 6     shells are now falling on Irzniq.  Against artillery there is little that

 7     the KLA has been able to do but run.  All this is happening while both

 8     sides consider peace proposals and the international community struggles

 9     to find a way forward.  Despite the international diplomacy the situation

10     on the ground remains unchanged.  The Serbs are still pressing their

11     offensive, the KLA still defending their villages and communities.  The

12     Serbs, of course, don't see it that way.  They insist that the rebel

13     fighters are the problem, and without them so much misery and destruction

14     could have been avoided.  Here it's the paramilitary police that are

15     bearing down on the KLA.  In other places we saw heavily armed units of

16     the Army of Yugoslavia.  The Serbs say they now regard this as a

17     mopping-up operation.  For the KLA it's becoming a battle for survival.

18     When there is fighting, there are of course more refugees.  Almost

19     200.000 people have been made homeless by this conflict.  The aid

20     agencies have been hoping that they would return to their villages.

21     What's happened today makes that a very distant prospect.  Jeremy Cooke,

22     BBC News, Irzniq, Kosovo."

23             MR. EMMERSON:  So, Your Honours, I hope that that -- that brief

24     run through gives you a flavour of what was taking place during our

25     indictment period in the area with which Mr. Haradinaj was concerned, as

Page 2840

 1     well as placing into context some of the more extravagant inferences that

 2     the Prosecution invites you to draw.  We'll look at some more of them in

 3     detail a little later.  But the next thing I want to do is just draw the

 4     threads together.  Having set that background to draw the threads

 5     together as it relates to the counts on the indictment.

 6             Can I do that by just setting out, if you like, five or six key

 7     points along the indictment period both as they relate to the offensives

 8     and the crimes and the organisation such as it was or attempted

 9     organisation of the KLA.  And I'm going to be referring for this purpose

10     and perhaps just for the purposes of the transcript perhaps note that the

11     key aspects of the chronology are summarised with references at paras 19

12     and 21 of our final brief, but can I just take it in this way in

13     essentially the following -- the following periods:  Between March and

14     May, in the face of these threats from the Serbian military, rudimentary

15     defences emerged spontaneously in many of the villages in Western Kosovo.

16     On the 26th of May, the leaders of certain of the villages around the

17     area of Western Kosovo came together for the first time in an attempt to

18     co-ordinate their efforts.  That's the 26th of May meeting that

19     Mr. Rogers has referred to in which a regional staff was formed with five

20     subzones.  And Your Honours have seen a map - and I'm going to come back

21     to the map in a little while - of the five subzones, and Your Honours

22     will recall the different areas and who was in charge of them.

23     Critically for the purposes of our case, Jabllanice was way outside.  So

24     on the 26th of May a regional staff was formed involving these five

25     subzones.  Jabllanice wasn't incorporated within its structure and

Page 2841

 1     continued to operate as it had been as an independent group of KLA

 2     fighters outside this co-ordinated structure established on the 26th of

 3     May.

 4             It wasn't until the 23rd of June when the Dukagjin Zone

 5     operational command was established that Jabllanice came to be

 6     incorporated in any co-ordinated effort at all, and Your Honours have the

 7     minutes of a prior meeting on the 21st of June in Irzniq which refers in

 8     terms to the need to incorporate Jabllanice within a joint structure for

 9     the purpose of improving co-operation and co-ordination.  That's P190.

10     The important point being it's absolutely clear that prior to the

11     23rd of June at the earliest, Jabllanice wasn't even co-ordinated with

12     the four subzones immediately along the front line of the Peje to Gjakova

13     road.

14             Moving to the period between May and June, we know that

15     Jabllanice continued to function as a separate area, and of course it was

16     in that period that it is alleged that the crimes charged in Count 1,

17     Count 2, Count 3, and Count 4 are said to have taken place.

18             Now, we -- if we move forward in time to the 23rd of June when

19     Mr. Haradinaj was elected as commander of the newly formed Dukagjin

20     or -- Plain Operational Zone, our submission to Your Honours, and it's

21     set out in detail between paragraphs 100 and 118 of our brief, is that

22     the evidence shows very clearly that even after the 23rd of June there is

23     nothing to suggest that Mr. Haradinaj was kept informed of the actions of

24     those in Jabllanice, that he was in effective day to day command or

25     control there, or indeed that he was in a position to issue directions.

Page 2842

 1             During the period of July, it's alleged that the crimes charged

 2     as Count 5 and 6 took place, although Witness X testified that the crime

 3     charged in Count 6, in fact, took place earlier than that.

 4             Each of those stages of development were punctuated by the

 5     sustained Serbian attacks that Your Honours have seen with their fairly

 6     catastrophic effects on the civilian population.

 7             So what then was the state of play with organisation inside the

 8     KLA across that period of time?  Well, Mr. Zyrapi told you that there

 9     were at least three independent centres of KLA resistance in Western

10     Kosovo, the Jashari family compound in Prekaz until their massacre, the

11     Haradinaj family compound in Glodjan, and the Brahimaj family in

12     Jabllanice.  None of those families, he told you, had the authority or

13     ability to impose their will on any of the others.  And he confirmed in

14     terms that the Brahimajs could not tell the Haradinajs what to do and the

15     Haradinajs could not tell the Brahimajs what to do.

16             The Prosecution also called Skender Rexhametaj who was one of the

17     subzone commanders established in the command set up on the 26th of May

18     in an effort to bolster the contention that Mr. Haradinaj's participation

19     in the Jabllanice counts could be inferred from his command and

20     leadership position.  But, in fact, Mr. Rexhametaj's evidence was to

21     quite the opposite effect.  He testified that Jabllanice was not included

22     in the first attempt to establish a regional staff on the 26th of May,

23     and that the staff at Jabllanice continued to act independently.  He said

24     that it was he, Mr. Rexhametaj, who then proposed that steps needed to be

25     taken to incorporate Jabllanice to improve some level of co-ordination.

Page 2843

 1     And, critically, he told Your Honours that even after the 23rd of June

 2     with the Dukagini Plain Operational Staff being agreed and Mr. Haradinaj

 3     elected as a commander and even after therefore Jabllanice was formally

 4     incorporated within this fledgling structure, Mr. Rexhametaj told

 5     Your Honours that the organisation remained horizontal in reality even

 6     after the 23rd of June, that no one of the power bases could give orders

 7     to the other and that everything had to be done by consensus and by

 8     consultation and that the commanders of the various subzones he said

 9     continued to act independently with volunteers making up the force.  He

10     told you that the Dukagjin Zone structure, such as it was, was in his

11     words an aspirational blueprint for the military organisation that they

12     were hoping they might be able to create at some pointed in the future.

13             That is the reality of the evidence.

14             Now, Your Honours, in the time that remains today I want to

15     start, if I may, by going through the three incidents in the evidence

16     before you in which Mr. Haradinaj is alleged to have played a direct

17     part.  I'm going to leave out for a moment the FARK confrontation which

18     I'll come back to at the close of my submissions, because in our

19     submission that's really got absolutely nothing to do with this case.

20     But there are three key points at which he appears in the evidence, and

21     we need to look, if we may, briefly at each of them to see what

22     inferences can safely be drawn.

23             First of all, there is the evidence concerning his intervention

24     following the severe injuries that ultimately resulted in the death of

25     Skender Kuqi.  And Skender Kuqi Your Honours will remember had been part

Page 2844

 1     on the evidence of an escape attempt from Jabllanice which had taken

 2     place around, I think, the 17th or 18th of July along with Witness 3 and

 3     Pal Krasniqi, and at the time, also detained at Jabllanice on the

 4     evidence was Witness 6.  So that just -- just places it in its context.

 5             Now, before we look at what the evidence actually establishes

 6     about Mr. Haradinaj's involvement in the Skender Kuqi case, I want just

 7     to stand back for a minute because Mr. Rogers made a rather glib

 8     suggestion to you this afternoon which is extremely dangerous and,

 9     frankly, characteristic of the way in which the evidence has been

10     presented.  He said to you that there was a list of targets for --

11     included within a KLA blacklist that he said was being circulated by the

12     KLA that included the name of Skender Kuqi.  So could we look, please,

13     you have it behind tab 4 but could we bring it up on the screen.  It's

14     D146.

15             Not very clear, I'm afraid, on the screen.  Could we get a better

16     picture of the type side or not?  No.  All right.  Well, Your Honours

17     have it in -- behind tab 4 in the bundle.  Perhaps it's easier to read

18     from there.  And Your Honours will see that there's a list of ten groups

19     of people, some of them individuals, some of them more than one, headed

20     as "Wanting [sic] or missing persons."  So not a blacklist necessarily at

21     all, but -- I'm sorry?  Not wanting.  I see the transcript says

22     "wanting."  It says "wanted or missing."  That's the first point to note.

23     Secondly, you'll note that amongst those on the list is number 5, Zenun

24     Gashi.  We'll come back to him later on.  Number 8, two unnamed women

25     collaborators.  So at least they were being identified on the basis that

Page 2845

 1     they were potential collaborators even if the others were simply

 2     identified as missing, and then 10, Skender Sali Kuqi from Luci Glava

 3     [phoen].

 4             Now, the first point I want to make point and it's an obvious one

 5     that the mere fact that anybody within the KLA hierarchy such as it was

 6     was looking for suspected collaborators is not evidence of any criminal

 7     intent whatever.  It's perfectly lawful in the situation of an internal

 8     armed conflict to identify individuals collaborating within passing

 9     information to the enemy and to detain them.  It's only if they are after

10     being detained to be treated in a manner which is unlawful either by

11     killing or by torturing or otherwise ill-treating them that a crime is to

12     be inferred.  That's the first point.  So the fact that there may well

13     have been at various states an intention to identify people who had been

14     passing information to the Serbs that could in turn have led to the sort

15     of slaughter we saw at Prekaz or the sort of military attack we've seen

16     in these videos is not in itself an unlawful purpose and doesn't betoken

17     any joint criminal enterprise.  But the most important thing about this

18     list is it wasn't a KLA list at all.  That's why it's so dangerous to

19     take what the Prosecution says about its own evidence at face value

20     because the reality is, and we'll see this, I'm afraid, in copious detail

21     toward the end of my submissions, that the Prosecution don't seem to have

22     read the evidence from the first trial in any detail at all.  This list

23     was concluded within the notebook of Witness 17.  Witness 17 was the FARK

24     commander in Baran, and it was included in his notebook immediately under

25     a record establishing the names of the FARK military police that he had

Page 2846

 1     just appointed.  So this is a FARK list, not a KLA list.  And I -- when

 2     he gave evidence, I was cross-examining him about whether in fact these

 3     people were being sought by the FARK military police, and his evidence

 4     was he had no idea why he had recorded this list.  But can we just look

 5     at what he actually had to say about it.

 6             JUDGE MOLOTO:  Did he say why he had recorded it, or did he say

 7     he had no idea who gave it to him.

 8             MR. EMMERSON:  Your Honours, I'm going to answer that question

 9     just now by reference to the testimony that he gave which is behind tab 5

10     in transcript form, but we're going to play it to Your Honours.

11             Do we have a technical problem here?  Volume.

12                           [Video-clip played]

13              "JUDGE ORIE:  You now come to the list, that's the last words.

14     I'm interested in the list, not in the appointment of police officers and

15     how this actually went on.  So you said 'and the list.'  Could you tell

16     us what this list was about then?

17              "THE WITNESS: [Interpretation] I made note of this list that was

18     offered to me by someone.  I don't know who gave that list to me, but

19     there is a note of it in my notebook.

20              "JUDGE ORIE:  Yes, but you would only write down especially if

21     you do it the next day any information that is relevant for you, isn't

22     it?

23              "THE WITNESS: [Interpretation] I was not in a position to carry

24     out one activity and write at the same time.  I took notes and then I

25     transcribed those notes in my official notebook on the next day or

Page 2847

 1     whenever I had time to make these notes, and I did make note of the most

 2     important events.

 3             "JUDGE ORIE:  Yes.  There was not an event, but this is an

 4     activity.

 5             "THE WITNESS: [Interpretation] I really don't see the difference

 6     between an event and the activity.  I don't know what kind of activity

 7     this could be.

 8             "JUDGE ORIE:  Well, looking for persons, as a matter of fact.

 9             "Mr. Emmerson, please proceed

10             "MR. EMMERSON:

11             "Q.  Just to be clear, Witness 17, who did you think was going to

12     go find them?

13             "A. I was not thinking about this at the time.  I wasn't

14     preoccupied with this.  My preoccupation was to create the brigade, to

15     find location, suitable location, and to form further structures.

16             "Q.  But you did know, didn't you, that at least two of the

17     people on that list were being looked for on the grounds that they were

18     alleged to be collaborators, the two women mentioned at item 8?

19             "A.  I made a note of the information the way it was served to

20     me, given to me by person.

21             "Q.  Did you think there was anything improper about this list

22     that had been giving to you?  Did you think, for example, it was evidence

23     of a plan to commit crimes?

24             "A.  No, I didn't.

25             "Q.  So can we take it then that you never took this list to

Page 2848

 1     Ramush Haradinaj and said, 'Look, these men under my command are looking

 2     for people'?

 3             "A.  No, I didn't.  That's true.  I didn't take it to him."

 4             MR. EMMERSON:  So another gem from the Prosecution case, a list

 5     that is, in fact, not a KLA list but a FARK list.  It's not a list

 6     necessarily or of alleged collaborators but some people who are being

 7     searched for, who are being searched for, if by anybody, by the FARK

 8     produced by the leader of the FARK in Baran who doesn't know where it

 9     came from or what its purpose with, who didn't think it was evidence of

10     anyone who intending to commit a crime and who never brought it to the

11     attention of Mr. Haradinaj.

12             JUDGE MOLOTO:  Do you think you can slow down a little bit?

13             MR. EMMERSON:  Yes.

14             JUDGE MOLOTO:  The stenographer, I'm sure, is having difficulty

15     trying to keep up.

16             MR. EMMERSON:  I'm nearly finished for the day.

17             So there it is, and, says Mr. Rogers, you can infer from that

18     that Ramush Haradinaj was party to a conspiracy to not only arrest but

19     detain Skender Kuqi and to ill-treat collaborators inside Jabllanice as

20     part of a joint criminal enterprise.  It's nonsense, and it's typical,

21     frankly, of the unprofessional and sloppy approach that's been taken in

22     preparing the evidence and presenting it to Your Honours.  You're going

23     to have to look very, very carefully, and I'm afraid the Trial Chamber's

24     legal assistants are going to have to look very, very carefully at every

25     single footnote in the Prosecution's closing brief because there is


Page 2849

 1     barely one that is a fair reflection of the evidence that it purports to

 2     summarise.  And I shall give you a list at the close of my submissions of

 3     particular areas where I regret to say the Trial Chambers are going to

 4     have to focus.  I make it clear at this point that I -- reading it

 5     through, I'm not seeking to apportion blame as between the Prosecution

 6     case, but, frankly, it has all the hallmarks of inexperienced junior

 7     counsel making bad points on partial evidence rather than of leading

 8     counsel having given their attention to the detail.  But we'll look at

 9     the list towards the end of my submission, but, frankly, you cannot take

10     anything, I regret to say, the Prosecution says about this evidence or

11     any of it at face value.  They have given you entirely misleading

12     impression, so that's the wanted list.  And that's the evidence about it.

13             What about Skender Kuqi?  Can we look, please, at the evidence,

14     first of all, of Witness 80, which you'll find behind tab 6.  This

15     section of transcript has to be in private session.

16             JUDGE MOLOTO:  May the Chamber please move into private session.

17                           [Private session]

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 2850











11 Page 2850 redacted. Private session.















Page 2851

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6                           [Open session]

 7             THE REGISTRAR: [Interpretation] Your Honours we're in open

 8     session.

 9             JUDGE MOLOTO:  Thank you so much.

10             Yes, Mr. Emmerson.

11             MR. EMMERSON:  Your Honour, the evidence that I've just

12     summarised in closed session is wholly corroborated by the evidence of

13     Rrustem Tetaj from the first trial which has been admitted, and which,

14     in our submission, gives Your Honour a full flavour of Mr. Haradinaj's

15     intervention and not only contradicts the suggestion of a joint criminal

16     enterprise but gives you the kind of flavour of the man that you were

17     dealing with.

18             Can we please play the evidence of Rrustem Tetaj which is to be

19     found behind tab 6 and is P521.  That will take us up to the end of

20     today.

21                           [Video-clip played]

22             MR. EMMERSON:  No volume.

23                           [Video-clip played]

24             "Q.  In July 1998, did he come and tell you something about

25     Skender Kuqi?


Page 2852

 1             MR. EMMERSON:  [Microphone not activated]

 2             JUDGE MOLOTO:  Microphone.  Microphone.

 3             MR. EMMERSON:  Sorry.  The witness has just described how a

 4     relative of Skender Kuqi's had come to him to tell him that Mr. Kuqi had

 5     disappeared.

 6             Can we go back to the beginning, please, and pick it up from

 7     there.

 8                           [Video-clip played]

 9             "Q.  In July 1998, did he come and tell you something about

10     Skender Kuqi?

11             "A.  Yes.

12             "Q.  What did he tell you?

13             "A.  He came do my place and told me that Skender Kuqi has been

14     abducted by the KLA and he's being held in Jabllanice.  I haven't seen

15     such a thing, but I took note of what he said, and I contacted

16     Faton Mehmetaj about this.

17             "Q.  What did Faton Mehmetaj say?

18             "A.  Faton Mehmetaj told me that I need to talk to

19     Ramush Haradinaj.  I went to Ramush and told him what I was told, and he

20     had no knowledge of what I told him and together we went to Jabllanice.

21             "Q.  Did you go and see Ramush before you went to Jabllanice?

22             "A.  To Jabllanice, we went to the house of Nazmi Brahimaj.

23             "Q.  Was that the local KLA headquarters or a different location?

24              "JUDGE ORIE:  Mr. Re, I am a bit surprised by just -- your next

25     question.  Your previous question was, 'Where did you go and see Ramush

Page 2853

 1     before you went to Jabllanice?'  And then the answer is, 'To Jabllanice,

 2     we went to the house of Nazmi Brahimaj.'

 3              "MR. RE:  It was for time considerations I didn't pursue it.

 4     It's not of great importance, that's why I didn't pursue it.  But if

 5     Your Honours want me to, I can go back and ask him where he saw --

 6              "JUDGE ORIE:  No, I'm a bit surprised.  Now I better understand

 7     that it was not of such relevance to pursue the matter.  Please proceed.

 8             "MR. RE:

 9             "Q.  Was that the KLA headquarters that you went to in

10     Jabllanice?

11             "A.  With Ramush we went there.  It was a house.  It's called a

12     fort from our people there.  It was the local staff which was based

13     there.

14             "Q.  Who did you see there, you and Ramush?

15             "A.  Both with Ramush, we met Nazmi Brahimaj.

16             "Q.  Did you speak to him?

17             "A.  Yes.  We spoke with him.  We didn't have much time because

18     the situation on the ground was very serious, and Ramush told him that

19     this person should be released immediately and we returned.

20             "Q.  Did Nazmi Brahimaj tell you, and Ramush, why this person

21     was -- was being -- why Skender Kuqi was being detained?

22             "A.  Ramush Haradinaj knew nothing about it until the moment that

23     I told him, and immediately after that, Ramush gave him the ultimatum

24     that this person should be immediately released and he said no such thing

25     should happen any more because this is damaging our cause."

Page 2854

 1             MR. EMMERSON:  Thank you:

 2             "Ramush Haradinaj knew nothing about it until the moment I told

 3     him, and immediately after that, Ramush gave the ultimatum that this

 4     person should be immediately release and he said no such thing should

 5     happen any more because this is damaging our cause."      

 6             That's the Prosecution's allegation of joint criminal enterprise,

 7     Your Honour.

 8             JUDGE MOLOTO:  Thank you, Mr. Emmerson.  I suppose your body

 9     language suggests we can adjourn for the day.

10             MR. EMMERSON:  Yes.

11             JUDGE MOLOTO:  Court adjourned until 9.00 tomorrow morning, same

12     court.

13                           --- Whereupon the hearing adjourned at 7.03 p.m.,

14                           to be reconvened on Tuesday, the 26th day

15                           of June, 2012, at 9.00 a.m.