1 Tuesday, 26 June 2012
2 [Defence Closing Statement]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.00 a.m.
6 JUDGE MOLOTO: Good morning to everybody in and around the
7 courtroom. Will you please call the case, Mr. Registrar.
8 THE REGISTRAR: Good morning, Your Honours. This is case number
9 IT-04-84bis-T, the Prosecutor versus Ramush Haradinaj, Idriz Balaj, and
10 Lahi Brahimaj.
11 JUDGE MOLOTO: Thank you so much. Could we have appearances for
12 the day, please, starting with the Prosecution.
13 MR. ROGERS: Yes, good morning, Your Honours. Paul Rogers for
14 the Prosecution, together with Mr. Aditya Menon, Ms. Daniela Kravetz and
15 our Case Manager today, Ms. Line Pedersen.
16 JUDGE MOLOTO: Thank you so much.
17 Could we have for Mr. Haradinaj, please.
18 MR. EMMERSON: Your Honour, Ben Emmerson on behalf of
19 Ramush Haradinaj, together with Rod Dixon, Andrew Strong, Annie O'Reilly
20 and Kerrie Rowan.
21 JUDGE MOLOTO: Thank you so much.
22 And for Mr. Balaj.
23 MR. GUY-SMITH: Good morning, Your Honours. Gregor Guy-Smith,
24 together with Colleen Rohan, Holly Buchanan, Gentian Zyberi, and
25 Ramon Barquero.
1 JUDGE MOLOTO: Thank you very much.
2 And for Mr. Brahimaj.
3 MR. HARVEY: Good morning, Your Honours. Richard Harvey,
4 together with Paul Troop, Luke Boenisch, and Sylvie Kinabo.
5 Your Honours, may I just raise one issue before we start and I
6 think you may have been informed. I had grown a little concerned
7 yesterday. The Trial Chamber has said that it wishes -- it does not wish
8 to impose time limits on any of the counsel in their submissions, which
9 is very kind, but the Trial Chamber also wishes to conclude today, which
10 we fully understand.
11 As the last counsel to be in a position to present a submission
12 to Your Honours, I don't have a guarantee from anybody, nor would I
13 expect one, of exactly how long they plan to be, nor do I offer one
14 myself. But there is the potential that we might need, if Your Honours
15 are minded to consider this, to sit a little longer than the hours that
16 we would normally sit today and go into what is known as an extended
17 sitting in order to make sure that on behalf of Mr. Brahimaj I am not
18 foreclosed from making the submissions that I think it appropriate to
19 make on his behalf. I will not be protracted. I will try to be concise,
20 but I do want to be thorough.
21 JUDGE MOLOTO: We hear you, sir. As you do understand that this
22 impacts not just you and the Court, the Chamber, but also our
23 interpreters and other members of staff. If they are prepared to
24 accommodate we will do so, otherwise you might have to go into tomorrow.
25 MR. HARVEY: Thank you very much, Your Honour.
1 JUDGE MOLOTO: Thank you.
2 Mr. Emmerson.
3 MR. EMMERSON: Your Honours, when we broke yesterday afternoon, I
4 had been making some submissions to you by reference to the testimony of
5 Rrustem Tetaj from the last trial concerning and a protected witness from
6 this trial concerning Skender Kuqi and Mr. Haradinaj's intervention when
7 the detention of Skender Kuqi was brought to his attention as the
8 evidence establishes by Rrustem Tetaj himself. The first thing that he
9 did was to make that difficult journey over to Jabllanice and then get
10 there and remonstrate when he arrived with Nazmi Brahimaj over the
11 treatment of Mr. Kuqi and order his immediate release, and Your Honours
12 may remember the words from the protected witness that: This type of
13 thing damages our cause. And Your Honours may think that this is a
14 telling detail because of course, as I said to Your Honours yesterday,
15 Mr. Haradinaj was commander of those who chose to follow him, and his
16 popularity and the support that he and, indeed, the cause that he
17 represented enjoyed within the community depended upon his reputation,
18 and, to that extent, it may well be thought that the ill-treatment of
19 those who have been detained, allegations of torture and the like of
20 people in custody would have precisely the opposite effect, that which
21 Mr. Haradinaj was so painstakingly seeking to build, namely a consensus
22 among the community to take part in a volunteer force. So that was the
23 first time he appears actively on the evidence in this case. There are
24 two others.
25 The second is in connection with Witness 3. Witness 3
1 Your Honours will recall was one of those who he said escaped from
2 Jabllanice on the 17th, 18th July, and he testified in some considerable
3 detail about being redetained, including, in the end, by Lahi Brahimaj
4 and locked into the boot of a car and eventually delivered by
5 Mr. Brahimaj to Glodjan where he was initially badly treated by a
6 particular soldier there, and then two young boys who he believes to be
7 the brothers, or one of them to be the brother of Mr. Haradinaj, entered
8 the room, caused the ill-treatment to cease immediately and began
9 altogether to treat him in a different manner.
10 At that point, a man he believed to be Ramush Haradinaj, the
11 commander of Glodjan certainly entered the room where he had been, and he
12 told Your Honours that he was questioned by Mr. Haradinaj as to how he
13 came to be there. He was then given -- offered food, given cigarettes,
14 offered a bed for the night voluntarily, in other words, he was told he
15 could stay the night if he wished to do so, but that he should sleep away
16 from the window because there was a risk that otherwise he must be hit by
17 a Serbian shell or sniper. In other words, as soon as Mr. Haradinaj
18 arrived on the scene, he told, you his treatment was entirely
19 appropriate, his presence was voluntary and he was given support. And
20 I'm going to read a short passage of his testimony. He's asked this:
21 "Q. So was it obvious to you as well that he, that is
22 Mr. Haradinaj, didn't know who'd brought you there or what it was you
23 were accused of?"
24 This is transcript 1678, line 11 onwards.
25 "A. I believe he was not aware, because it was a matter of time.
1 When Mr. Lahi Brahimaj took me from the shop, there was no time to
2 discuss with other people. I'm not sure, but I believe that he, that is
3 Mr. Haradinaj, was not aware.
4 "Q. And did you tell him that you were accused by Mr. Brahimaj of
5 some form of treason? Did you tell the man you believed to be
6 Mr. Haradinaj that that is what the accusation was or what did you say?
7 "A. He asked me my name, where I was from, Who brought you here,
8 and for what. I told him my name, surname, the name of my village. He
9 asked, Why are you here? And I answered that there was a question of an
10 automatic rifle. I was accused."
11 Pausing there, Your Honours will recall that there was an
12 allegation that Witness 3 of stolen a rifle that ought to have been
13 surrendered to the KLA. The answer continues:
14 "... he asked me whether I knew someone where I could sleep in
15 Glodjan, and I said I didn't.
16 "Q. Pause there because we'll come to the issue of where you
17 were going to sleep in a moment or two. You've just told us that he
18 asked you your name and where you were from and who brought you there and
19 for what, and you say you told him your name, your surname, the name of
20 your village, and he asked, Why are you here? And I answered there was a
21 question of an automatic rifle. Now, pausing there, did you tell him
22 that you had been brought there by Lahi Brahimaj?
23 "A. Yes.
24 "Q. How did he respond when you told him that?
25 "A. He made this noise, shh," and it's recorded on the
1 transcript as "shh," "It seemed incomprehensible to him, I think.
2 "Q. What was the noise? Can you describe it for the record?"
3 And then Your Honour Judge Moloto intervenes to say it's
4 described on the record as "shh," and the witness says like this and then
5 it's recorded p-w-o-w, "pwow."
6 "... he was, I think," says the witness "angry, angry why these
7 things happened, why these bad things happened."
8 "Q. Angry towards whom do you think?
9 "A. Of course that Lahi had taken me there."
10 So, again, that witness in the evidence that he gave most
11 certainly does not support the suggestion that any ill-treatment of him
12 was pursuant to a joint criminal enterprise. Just as in the case of
13 Skender Kuqi when ill-treatment was brought to Mr. Haradinaj's attention,
14 the response was to remonstrate to criticise, to say this should never
15 happen again, nothing of the kind should ever happen again because it is
16 damaging our cause. So, too, when Witness 3 informs Mr. Haradinaj that
17 he has been ill-treated, detained by Lahi Brahimaj in the way described,
18 the reaction is that Mr. Haradinaj was angry why these bad things
19 happened, angry towards Mr. Brahimaj.
20 So that doesn't, in our submission, support a joint criminal
21 enterprise. Indeed, it proves that no such joint criminal enterprise was
22 in existence. This is not, I reiterate, a command responsibility case,
23 but even if it were in the circumstances as they existed on the ground,
24 it wouldn't begin, in our submission, to come close to the threshold
25 necessary. But this is a joint criminal enterprise case, and what you
1 have in each instance where there is an intervention by Mr. Haradinaj is
2 an expression by those who saw it of what was clearly an attitude of
3 opposition to the ill-treatment of individuals who had been detained at
5 Can we just move on to look at a short passage of video from
6 Witness 3 where he deals with how he reacted to the treatment afforded to
7 him by Mr. Haradinaj now.
8 [Video-clip played]
9 "Q. ... based on the evidence that you've already given, I'm just
10 going to put some short propositions to you and invite you to agree with
11 them, without necessarily a lengthy elaboration.
12 "First of all, you understood that you were being given a bed for
13 the night where you could --"
14 MR. EMMERSON: [Microphone not activated] Sorry, we have
15 technical --
16 THE INTERPRETER: Could we have the tab number, please.
17 MR. EMMERSON: Nothing -- nothing showing on my screen.
18 Do Your Honours have the video showing?
19 JUDGE MOLOTO: Just -- we're on our way now.
20 MR. EMMERSON: Could somebody please sort it out.
21 THE INTERPRETER: The interpreters would like to get the tab
22 number of this transcript.
23 JUDGE MOLOTO: Mr. Emmerson, the interpreters would like to get
24 the tab number of this transcript. Yes, put on your earphones. The
25 interpreters would like to get the tab number of this transcript.
1 MR. EMMERSON: It's tab 8, Your Honours.
2 JUDGE MOLOTO: It's tab 8, interpreters.
3 [Video-clip played]
4 "Q. ... stay voluntarily if you chose to do so; correct?
5 "A. Correct. That's true.
6 "Q. You'd been reassured that you would be kept safe and taken
7 home in the morning to your relatives; correct?
8 "A. According to those two young men who prevented the blonde
9 guy from beating me, I started to feel a little bit reassured.
10 "Q. And you'd been given food and cigarettes and a relatively
11 safe place to sleep the night.
12 "A. Yes, that's right.
13 "Q. Now, there came a point later in the evening when you were
14 called to go downstairs to see the commander; is that right?
15 "A. Yes, that's right.
16 "Q. So having expected that you would be sleeping the whole
17 night there, I think you said before it's sometime around 11.00 you got a
18 call to come downstairs; is that right?
19 "A. Yes, that's correct.
20 "Q. You told Mr. Rogers yesterday, perhaps understandably in the
21 context of the testimony you've given, that you were scared when you were
22 called downstairs, but when you got there, the man that you believed to
23 be Mr. Haradinaj said to you, Forget about what has happened. Go home to
24 your family and forget about everything. You are free.
25 "Is that right?
1 "A. That's right. This is what he told me. I -- of course, had
2 I known before why he had called me downstairs, I wouldn't be afraid.
3 But before going there, I was afraid. But when I went downstairs, he
4 told me, You can go to your family. Don't have anything to do with this.
5 You are free.
6 "Q. And I think he advised you to stay away from the KLA
7 generally; is that right?
8 "A. He said, Stay away. Stay away from what happened. Return
9 to your family.
10 "Q. Can I ask you this, witness. Did you understand what was
11 being said to you to mean this: That you would be safely now returned to
12 your family and that nothing bad would happen to you again?
13 "Is that what you understood this man you thought Mr. Haradinaj
14 to be saying to you?
15 "A. Yes. When he said these words and when I saw the people who
16 had come to fetch me, I knew that no harm would ever come to me from this
17 person. And, in fact, I've never been afraid of Mr. Haradinaj. I didn't
18 know him. He didn't know me, and I am not afraid even now.
19 "Q. But if that was what he was promising you, that no harm
20 would come to you again, that is exactly with a happened, isn't it,
21 Witness 3? No harm did come to you again after that.
22 "A. That's correct. No harm came to me. No threats. I didn't
23 have any contacts with them.
24 "Q. And would it be fair to say that once you had come to the
25 attention of Mr. Haradinaj, from that point onwards you were safe?
1 "A. Yes. Yes, this is what had happened, in fact. I never had
2 any problems."
3 MR. EMMERSON: I want, if I may, to put on -- thank you. Now,
4 just pausing there, I don't propose to say much by way of comment other
5 than this: That it is perfectly clear from the testimony of Witness 3
6 that Mr. Haradinaj's intervention in his case was not only inconsistent
7 with the existence or, rather, with the involvement of Mr. Haradinaj in a
8 joint criminal enterprise to ill-treat Witness 3, but was proof positive
9 of quite the reverse.
10 Can I turn now to the third, and, in our submission, the last
11 relevant evidence of an involvement of Mr. Haradinaj in this case, and
12 that is the incident concerning the ECMM monitors that Mr. Rogers thought
13 it right to place such reliance upon. Now I summarised to Your Honours
14 yesterday what had happened in relation to that and when it had happened
15 and pointed out that for the Prosecution to seek to rely on that
16 interchange as evidence of Mr. Haradinaj's propensity for violence
17 against those who were detained was, in the circumstances, preposterous.
18 Mr. Pappas together with his interpreter, Kastriot, and two other ECMM
19 monitors, one called Wolfgang Kaufmann and another individual present
20 with him, had driven in a white Land Rover directly towards the
21 confrontation that Your Honours saw yesterday depicted in the BBC news
22 footage of the Serbian forces overrunning Glodjan and Irzniq causing
23 wide scale destruction and the mass displacement of the civilian
24 population. And there was initially a situation where they were stopped
25 by armed men as they approached Irzniq, taken to a KLA headquarters.
1 There was a confrontation in which the interpreter initial was struck and
2 the interpreter then told Mr. Pappas that these armed man who are
3 unidentified suspected that they were spies for the Serbs. They had, as
4 the evidence disclosed, satellite telephones and maps with them.
5 After about 25 minutes, he said, Mr. Haradinaj arrived. He asked
6 them some questions, but as Mr. Pappas told the last Trial Chamber, it
7 was totally different the way he was behaving, the way he was asking
8 information. Once Mr. Haradinaj arrived, everything was quite civilised.
9 Yet again, once Mr. Haradinaj arrived, everything was quite civilised.
10 That's P318, transcript T4132.
11 Once Mr. Pappas, explained that this was an ECMM group,
12 Mr. Haradinaj was quite open and understood their mission. Not only
13 that, but having been called away from the front line to deal with this
14 somewhat reckless escapade by the ECMM group, Mr. Haradinaj took them
15 back to their car, checked that it wasn't concealing weapons, told them
16 that they were free to leave and arranged for them to be escorted safely
17 out of the area. And Mr. Pappas, when asked, said that throughout this
18 encounter Mr. Haradinaj was "absolutely calm and controlled" and that his
19 manner was "gentle and polite."
20 Now, just pause for a moment on this, if I may, because what
21 Your Honours have in the evidence is a 92 ter witness statement of
22 Mr. Pappas, but in the original trial he had signed, first of all, a much
23 more detailed consolidated witness statement which contained the passage
24 explaining just how appropriately Mr. Haradinaj had behaved during his
25 intervention. That passage did not, however, find its way into the
1 92 ter statement. And, accordingly, he was cross-examined on the passage
2 that had not found its way into the 92 ter statement that Your Honours
3 have. And it may be, I don't know, that in proposing that this was
4 relevant evidence in this case of Mr. Haradinaj's propensity for violence
5 that the Prosecution overlooked this. Certainly had they focused on it,
6 it would have been very difficult for them to make the submission that
7 they made.
8 Can we look, please, now at a short passage of video in which he
9 was cross-examined, Mr. Pappas, about that section and what he had to say
10 about it. This is P397.
11 [Video-clip played]
12 "Q. ... the contents of your consolidated witness statement
13 where you deal with this matter. So I'm just going to read the
14 passages --"
15 JUDGE MOLOTO: What's your tab number? What's your tab number?
16 I'm sure the interpreters would want that.
17 MR. EMMERSON: This is tab 9.
18 JUDGE MOLOTO: Thank you.
19 [Video-clip played]
20 "Q. ... to you and ask you, please, to confirm that these are an
21 accurate reflection of your evidence because they don't find their way
22 into the written statement that has been admitted in evidence in this
23 case. Quotation - and I'm reading from the second half of paragraph 24
24 of the consolidated witness statement and then on:
25 "'He was absolutely calm and controlled, and in a gentle way he
1 started interrogating us one by one. He was polite. He started with
2 Penti, who was obviously shocked, frightened from the development of
3 things, Penti' and this is in brackets, '(Penti had been visiting our
4 team for just that day and this had happened to him)' closed brackets,
5 full stop. 'He checked his papers and only had a short discussion with
6 him. I recall that he asked Penti a question about a lake if Finland
7 that was the subject of some dispute with the Russians and Penti answered
8 him. After Penti, he asked the interpreter in Albanian a few things;
9 however, I'm not aware about the content of their conversation. After
10 Kastriot, he turned to me and asked me about my whereabouts and
11 occupation back home. He told me that he has no problem with Greeks,
12 although the politics of my country build up hostile feelings in a lot of
13 his comrades. He told me that he had visited Greece several times and
14 that he has a lot of Albanian friends living there and some of them came
15 to Kosovo to fight with him. I explained to him the circumstances in
16 which we had ended up there, meaning our presence in Rznic. I explained
17 to him our mandate and the purpose of our presence in Kosovo. It seemed
18 to me that he understood and was satisfied with my explanations.
19 Afterwards, he spoke in French and English with Kaufmann.'
20 "And then a little further on at paragraph 26, I want to put the
21 following passage on the record:
22 "'Afterwards, the commander came with us to our car and he
23 started to search it thoroughly inside and outside. He asked us if we
24 had guns and we said no. After this, he told us that we are free to go.
25 He offered us an escort out of the area which we agreed to. He then
1 ordered the three men in the black uniform, including Idriz Balaj, who
2 had stopped us before, to escort us out of Glodjan.'
3 "And then, finally, two lines at the bottom of paragraph 26:
4 "'The whole incident lasted for about one and a half hours under
5 continuous shelling of Serbian artillery.'
6 "So, first of all, can I ask you, please, to confirm that that is
7 an accurate reflection of your evidence?
8 "A. Yes, it is.
9 "Q. And secondly, just one or two supplementary questions. It
10 follows from that description that your impression of Mr. Haradinaj was
11 that he remained calm throughout this interchange and behaved reasonably
12 to you. Is that right?
13 "A. That's right.
14 "Q. And this was despite the fact that the village of Glodjan and
15 the village of Rznic were under heavy fire and the Serbs were closing in?
16 "A. They were under shelling, yes. I don't know, it's out
17 estimation that the Serbs were very close, yes.
18 "Q. And you know from the video you saw yesterday that by the
19 following day they'd overrun Glodjan?
20 "A. Yeah.
21 "Q. Now, for a commander to come away from the front line, to
22 divert himself and others from combat to deal with a group of monitors
23 who had decided to drive straight into the heart of a front line zone,
24 would you accept it's obviously a rather unwelcome distraction from the
25 job of defending people's lives in the course of the conflict?
1 "A. In the way that you put it, yes.
2 "Q. But nonetheless, once he had established your good faith, he
3 not only returned your documents and ensured that you could leave but
4 gave you safe passage out of the area, diverting soldiers again --
5 "JUDGE ORIE: Mr. Emmerson, I have to ask you to slow down for
6 the interpreters.
7 "MR. EMMERSON: Sorry.
8 "JUDGE ORIE: Could you perhaps please repeat your last
10 "MR. EMMERSON:
11 "Q. I said: Nonetheless, once he established your good faith,
12 he not only returned your documents and ensured that you could leave but
13 gave you safe passage out of the area, again diverting soldiers from the
14 front line to meet the needs of providing you with protection.
15 "A. Exactly."
16 MR. EMMERSON: Now, how can it be that a responsible Prosecutor
17 would put that incident forward as evidence of Mr. Haradinaj's supposed
18 involvement in a joint criminal enterprise to ill-treatment prisoners in
20 Those three incidents, Mr. Haradinaj's intervention in
21 Skender Kuqi's case, his intervention in the case of Witness 3, and his
22 intervention in the case of the ECMM monitors are the only evidence in
23 this trial of his active involvement in anything apart from the
24 confrontation with FARK soldiers which I'm going to come back to towards
25 the end of my submissions, but leaving the FARK distraction to one side
1 where it belongs, those three incidents are the only evidence of
2 Mr. Haradinaj doing anything relevant in this case and what do they tell
3 us? A joint criminal enterprise? I don't think so.
4 What then of the sloppy allegation that simply because he was a
5 popular KLA commander he must be guilty? That's really what it comes to.
6 It's necessary to put that in its proper context.
7 Mr. Rogers tried to dismiss the consistent evidence that was
8 before this Trial Chamber and the last that there was no vertical command
9 structure even after the 23rd of June. Mr. Emmerson might call it
10 horizontal, but in the end he was an influential commander.
11 Well, we're to the dealing with abstractions and generalities of
12 that nature in a criminal trial. We deal in specifics. And there are no
13 specifics upon which Mr. Rogers is in a position to rely, but let's just
14 look at what the evidence was. Can I just show Your Honours, first of
15 all, the evidence of Skender Rexhametaj, who Mr. Rogers relies upon and
16 sought to put before you to suggest that this relationship was such that
17 Mr. Haradinaj can somehow be held responsible for what happened in
18 Jabllanice. This is -- this is tab 10 in the bundle.
19 [Video-clip played]
20 "Q. ... yesterday that until the 23rd of June meeting you
21 personally of never received an order from Ramush Haradinaj. You were
22 subzone commanders of equal rank even though he was your co-ordinator,
23 you told us yesterday, and you never received an order from him before
24 the 23rd of June. Do you remember telling us that yesterday?
25 "A. Yes. I remember that, and that stands. I told you that
1 everything that was done was done on the basis of --
2 "Q. Just focusing on the question as narrowly as you can for a
3 moment. I'm going to suggest to you that that remained the position
4 after the 23rd of June, that you never received an order from
5 Ramush Haradinaj to do or not to do anything militarily within your
6 subzone after the 23rd of June.
7 "A. Yes. The subzones and the responsibilities of the subzone
8 commanders continued. We continued to work on functionalising the
9 positions and the responsibilities even after the 23rd of June.
10 "Q. And in practical terms, after the 23rd of June the
11 relationship between the subzone commanders, in practical terms, remained
13 "A. Yes, it remained horizontal in reality, which means that no
14 one could give orders to the other. Everything was done by consensus.
15 It remained the same."
16 MR. EMMERSON: So prior to the 23rd of June it is common ground
17 and unequivocally established that Jabllanice existed wholly outside the
18 four subzones that had been established on the 26th of May and after the
19 23rd of June the relationship between the commanders, both within and
20 outside that subzone, that's to say those that formed the Dukagini Plain
21 Operational Zone remained horizontal in reality "which means that no one
22 could give orders to the other." You see when, Mr. Rogers makes the
23 concession, as he does, that this was a force with no conventional
24 command structure, he fails to take that through to its logical
25 conclusion. The logical conclusion is that this was not an army with a
1 vertical hierarchy at all precisely because it depended on the consensus
2 of volunteers, people who were culturally, you've heard, centred around
3 loyalty to their own villages and their elected village heads. It was
4 necessary for everything to be debated by consensus, typically in the oda
5 where men would gather and debate what should be done. There was no
6 suggestion that there was any debate at any stage which resulted in a
7 decision to detain, beat, or kill people in Jabllanice or indeed to
8 establish a detention facility there.
9 So Mr. Rogers says, Well, we've got a witness from the first
10 trial called Zymer Hasanaj who says that Ramush Haradinaj appointed a
11 commander in Vranoc. Remember I showed Your Honours Vranoq. It was near
12 Baran and one of the villages attacked in the May offensive. I said you
13 may want to note Vranoq. So Mr. Rogers says there's a witness, he
14 mentioned it in their closing brief, Zymer Hasanaj who says that it was
15 Mr. Haradinaj who appointed the commander of Vranoq, a man called
16 Din Krasniqi, which of course would be inconsistent with the proposition
17 that the villages elected their own commander.
18 MR. ROGERS: Could Mr. Emmerson give us the paragraph reference,
19 so we can just check --
20 MR. EMMERSON: From your own brief?
21 MR. ROGERS: Yes, please [overlapping speakers] referring to.
22 MR. EMMERSON: I certainly will do. Just give me a moment to dig
23 it out.
24 MR. ROGERS: Thank you.
25 MR. EMMERSON: Can we just see what Mr. Hasanaj actually said
1 because I think, again, I think we're looking at a situation where this
2 Prosecution case has been drafted by looking at 92 ter witness statements
3 not at reading transcripts of statements.
4 [Video-clip played]
5 "Q. Was there a commander of the people who considered
6 themselves to be KLA in April 1998 in your village?
7 "A. We didn't have any commander at that time, but as a person
8 who was in a position to contact people, to be kind of representative, I
9 would say. This is how it was.
10 "Q. In paragraph 4, you refer to Ramush Haradinaj coming to
11 Vranoc on many occasions, including to announce the appointment of
12 Din Krasniqi as the commander of the Lugui Baran region. Did you know
13 Ramush Haradinaj personally?
14 "A. I do know Ramush Haradinaj personally. After the offensive
15 against Vranoc, Ramush Haradinaj didn't appoint Din Krasniqi. It was the
16 people who elected him."
17 MR. EMMERSON: So in answer to Mr. Rogers's question, at
18 paragraph 30 of his brief, the very passage that Mr. Re in that excerpt
19 was putting to the witness was -- is cited for -- as authority for the
20 proposition that the witness went on to contradict.
21 Can I move on now to look at the way that the structures -- these
22 independent power bases linked together, and, in particular, can I just
23 call up -- I'm sorry, is it P78, which is, just to he remind
24 Your Honours, the map --
25 JUDGE MOLOTO: Just a second. Did you say paragraph 30 of the
2 MR. EMMERSON: [Microphone not activated] yes.
3 JUDGE MOLOTO: 3-0.
4 MR. EMMERSON: [Microphone not activated] 3-0, yes, and
5 Your Honour will see footnote 102. Hasanaj.
6 THE INTERPRETER: Microphone for Mr. Emmerson, please.
7 MR. EMMERSON: I'm sorry. Footnote 102.
8 JUDGE MOLOTO: I see the footnote but the -- I'm not even sure
9 how it relates to paragraph 30 [overlapping speakers] ...
10 MR. EMMERSON: Well, the suggestion is that in the last words of
11 paragraph 30 that Mr. Haradinaj was influencing the selection of the
12 leaders and it's footnoted --
13 JUDGE MOLOTO: Okay.
14 MR. EMMERSON: -- to a statement of Mr. Hasanaj which said he
15 came to announce the appointment of Din Krasniqi as the commander.
16 JUDGE MOLOTO: Thank you.
17 MR. EMMERSON: Because, in fact, the evidence is the village, as
18 one has heard, consistently elected their --
19 JUDGE MOLOTO: Thank you so much --
20 MR. EMMERSON: -- own commander.
21 JUDGE MOLOTO: -- I'm grateful for your explanation.
22 MR. EMMERSON: Can we just call up P78 briefly, please.
23 Your Honours have it behind tab 12 as well. Perhaps you don't have it
24 behind tab 12. We do have it in mine. No we do have it, in fact, in
25 black and white. But it's helpful, I think -- can we call it up in
1 colour? Just to make the very obvious points. So these are the four
2 subzones. The subzone around Glodjan commanded by Mr. Haradinaj,
3 subzone --
4 JUDGE MOLOTO: What is its number again?
5 MR. EMMERSON: One.
6 JUDGE MOLOTO: One.
7 MR. EMMERSON: Your Honours can see the large area.
8 JUDGE MOLOTO: [Microphone not activated]
9 MR. EMMERSON: I beg your pardon?
10 JUDGE MOLOTO: It's very faint to read so that's why I'm asking,
12 MR. EMMERSON: On the screen, it's faint, is it? Because it's
13 quite clear on mine. Sorry? Your Honours, I'm told that if you switch
14 over to the live feed it will come up more clearly.
15 JUDGE MOLOTO: The life feed.
16 MR. EMMERSON: Very well.
17 JUDGE MOLOTO: That's better. E-court. Thank you.
18 MR. EMMERSON: So subzone 1, this is the 26th of May meeting.
19 Subzone 1 around Glodjan, this is Rrustem Tetaj's map; subzone 2, Irzniq
20 under the command of Rrustem Tetaj; subzone 3, the area around Pozar and
21 Dasinovac under the command of Skender Rexhahmetaj, who you've just seen
22 testifying about horizontal structures throughout; and subzone 4 under
23 the command of Shemsedin Cekaj, who also gave evidence in trial one about
24 the horizontal relationships that existed. And it -- it doesn't take me
25 to make the point that Jabllanice falls well outside of that subzone
1 structure. So we know that from the beginning of the indictment period
2 right up to the 23rd of June, Jabllanice was even formally entirely
3 outside any attempts at co-ordination of these zones along the front
4 line. What we also know from the evidence you've just heard is even
5 after the 23rd of June there was no command relationship of the short
6 that Mr. Rogers has tried to conjure up. So what did the witnesses say
7 about this? First of all, Mr. Tetaj himself explaining his map -- can we
8 please -- this is tab 13, just call up a short passage of Mr. Tetaj's
9 evidence. P521.
10 [Video-clip played]
11 "Q. ... more detail at the minutes of the meeting that took
12 place in Jabllanice on the 23rd of June; but, first of all, we can see
13 from the zones that you've marked on this map that as at the end of May,
14 they did not include any area to the west of the main road. Is that
16 MR. EMMERSON: Stop there.
17 [Trial Chamber confers]
18 MR. EMMERSON: Oh, I'm sorry.
19 [Trial Chamber confers]
20 JUDGE MOLOTO: Mr. Emmerson, you may wonder why we're -- what I
21 hear from the video here is not what I see on the transcript at tab 13.
22 So ...
23 MR. EMMERSON: Can we just -- can we just try again because I
24 think it may be that it cut in at the wrong moment because it certainly
25 seems to be what I put on my transcript. Is Your Honour's transcript --
1 is it headed 3720, beginning, "I'm going to ..."?
2 JUDGE MOLOTO: That's correct, "I'm going to ...," yes.
3 MR. EMMERSON: I think that -- I think that unless I'm mistaken,
4 I think that is the passage.
5 JUDGE MOLOTO: That's not what I hear from the video. Okay,
6 let's play the video again.
7 [Video-clip played]
8 "Q. I'm going to come back in a little while and look in more
9 detail at the minutes of the meeting that took place in Jabllanice on the
10 23rd of June, but, first of all, we can see from the zones that you've
11 marked on this map that as at the end of May, they did not include any
12 area to the west of the main road. Is that correct?
13 "A. Yes.
14 "Q. And they obviously did not include Jabllanice either?
15 "A. Until the moment when the original staff of Dukagjin was set
16 up, Jabllanice was a separate zone so it was not included in these four
17 subzones. It was not included in them.
18 "Q. Well, that was what I wanted to ask you. You say until
19 the -- the translation which 'the original staff of Dukagjin was set up.'
20 Can I just be clear. Are you saying until the meeting on the 23rd of
21 June when the staff of the Dukagjini Plain was established, until then,
22 Jabllanice was not part of this co-ordinated grouping? Is that right?
23 "A. That's correct. That's correct."
24 MR. EMMERSON: And can we just run now through a series of
25 testimonies back to back, and I'll explain what they are with even of
1 them just before they start. So the next tab 13 -- I'm sorry 14.
2 JUDGE DELVOIE: Mr. Emmerson, can I have -- can I ask a little
3 question. The area Hasanaj in tab 11 he's talking about, could you
4 remind me of which subzone that is in?
5 MR. EMMERSON: Yes. Vranoq, if Your Honour sees Baran,
6 outside -- it's on in amongst the subzones, it's outside as well. If you
7 look at Baran, which is just to the upper right-hand corner of subzone
8 4 -- yes, I'm sorry. Baran outside, but Vranoq, if you look beneath
9 immediately south of Vranoq it's just in the edge of the subzone 3 under
10 the command of Shemsedin Cekaj.
11 JUDGE DELVOIE: Thank you.
12 MR. EMMERSON: So, as I say, I'm just going to run through these
13 passages and just introduce them as we go. So tab 14 is the evidence of
14 Skender Rexhametaj on the way in which relationships operated between
15 these different villages. Can we just look at that briefly.
16 [Video-clip played]
17 "Q. And so -- and so would you agree with me that one of the
18 reasons why a commander from subzone -- from a particular subzone could
19 not impose his will on another subzone was because everybody was
20 volunteering and everything had to be agreed by consent?
21 "A. Yes, correct.
22 "Q. But there was also another reason which you told us about
23 right at the beginning of your testimony yesterday in some detail, which
24 is that these areas, these -- these -- these concentrations, these towns
25 and villages where commanders had been appointed, were fiercely,
1 culturally jealous of their independence from one another. Would you
2 agree with that?
3 "A. I would kindly ask you to repeat the question.
4 "Q. Another reason why everything had to be done by consensus
5 was because culturally in Western Kosovo - as you told us yesterday -
6 these towns, which were concentrations of KLA activity were fiercely
7 jealous of their independence. They protected their independence from
8 one another. They wouldn't want another leader from another town telling
9 them what to do because that would break the consensus, wouldn't it?
10 "A. It's correct, because these people who were appointed -- who
11 were appointed through the will of the local people going through the
12 rounds I mentioned. So the arrival of everyone else to command, to take
13 over the command, was -- didn't make sense to them. So I think they
14 wouldn't agree. I believe they wouldn't have liked that, because they
15 trusted us and I believe that we did a good job, given that the objective
17 "Q. Now, just to conclude, in your evidence as a whole, we've
18 really talked about six subzones, the four that were marked on the map I
19 showed you by Rrustem Tetaj, the one that you've told us about that's on
20 the western side of the road around Voksh, subzone 5, and the zone
21 surrounding Jabllanice, which I think is sometimes referred to as
22 Dushaka -- is that correct? Dushkaja. I'm sorry.
23 "A. Yes, yes. That's right.
24 "Q. And even after the 23rd of June, right up, let us say, until
25 the end of September, it was not possible, was it, for the commander of
1 any one of those zones to march into another one and tell the people
2 there what to do and what not to do as an order?
3 "A. Unless it was asked for, otherwise it was not possible.
4 "Q. And that remains the position despite this aspirational
5 blueprint that we see on the screen in front of us, didn't it?
6 "A. Yes."
7 MR. EMMERSON: Your Honour, the aspiration blueprint were the
8 minutes of the meeting on the 23rd of June on which Mr. Rogers relies.
9 Next, please, Bizlim Zyrapi trying to explain to the Trial Chamber the
10 cultural issues underlying this independence. This is tab 15 and there
11 are two short passages I want to play, please. Tabs 15 and 16.
12 [Video-clip played]
13 "Q. I'm sorry for that diversion, Mr. Zyrapi, we were going
14 through the relationships between the military power bases that were
15 associated with the main families in Western Kosovo. And you've told us
16 it would be absurd to suggest that either the Brahimajs or the Haradinajs
17 could tell the Jasharis what to do or what not to do inside their
18 compound and you've told us it would be absurd to suggest that the
19 Brahimajs could tell the Haradinajs what to do or what not to do inside
20 their compound. And the last question which is the obvious concomitant
21 of the first three: It would be absurd, would it not, to suggest that
22 the Haradinajs were in a position to tell the Brahimajs at that point in
23 time what to do and what not to do?
24 "MR. MENON: Your Honour, it's the same problem. There is no
25 basis for that question being put to this particular witness. It's not
1 clear to me how he can comment on that particular family tie that
2 Mr. Emmerson is referring to, the Haradinaj-Brahimaj family tie.
3 "JUDGE MOLOTO: I'm sure the witness can tell us if he's not
4 able to comment on that tie. Overruled.
5 "MR. EMMERSON:
6 "Q. It would be absurd, wouldn't it, Mr. Zyrapi, to suggest that
7 in March 1998 the Haradinaj family could impose their will or discipline
8 on what was or was not done by the Brahimajs inside Jabllanice?
9 "A. [No interpretation]"
10 MR. EMMERSON: Now, pausing there, that "jo," that "no" on the
11 transcript is capable of being ambiguous because of Mr. Menon's
12 interruption in the testimony. The actual question was, It would be
13 absurd, wouldn't it, to suggest that Mr. Haradinaj could tell
14 Mr. Brahimaj what to do. And the answer on the transcript actually says
15 "no" and the inference obviously was that what the witness meant to say
16 was, Yes, it would be absurd, no, he couldn't do it. But we clarified
17 that immediately afterwards.
18 [Video-clip played]
19 "Q. Mr. Zyrapi, I want to suggest to you that in March 1998 none
20 of these three families had authority to impose their will on one
21 another. That is correct, is it not?
22 "A. I wasn't there at that period to be able to know, but
23 experience would show that, yes, that is correct.
24 "Q. Thank you."
25 MR. EMMERSON: Now, pausing there, we're going to move on now to
1 a witness that Mr. Rogers cited to you yesterday in support of certain
2 aspects of the evidence about command. Cufe Krasniqi, who gave evidence
3 in the first trial and there were two passage I want to -- I want to play
4 Your Honours. They're both very brief. Essentially, his testimony was
5 to the effect that these commands remained separate not solely after the
6 23rd of June but right through to the end of July; in other words, to the
7 time just before the August offensive. Can we play, first of all, tab 17
8 which is P514.
9 [Video-clip played]
10 "Q. When you were answering questions about this relationship
11 between these different power centres in the period after the 11th of
12 July yesterday, you said they were not linked. You said: 'In Glodjan
13 there was Ramush. In Prapaqan it was Tahir. Each operated
14 independently, which means that we did not have the means and the
15 possibilities to communicate with each other.' Then you said: 'However,
16 if there was a problem or if we wanted to send some information, we send
17 a courier in order to ask for some help.' And then you said this: 'When
18 I was in Baran, if I had some problems, then I send some soldier with a
19 vehicle in order to ask for some help. I sent him to Ramush, to Lahi, or
20 to Tahir, the one which was closer.'
21 "And I wanted to understand that answer a little more. Are you
22 telling the Trial Chamber that from where you were in Vranoq, any one of
23 those three commanders would be regarded from your point of view as
24 operating autonomously so that you could call them or contact them
1 "A. Yes. That was not important at the time. If a village came
2 under attack, all the villages voluntarily offered to help. So, for
3 example, when the attack began on Jabllanice, I asked for assistance from
4 other villages, because Ramush could not come from Glodjan to the place
5 where I was. So whichever village was able to send volunteers to help,
6 they would do so.
7 "Q. And what you appear to be describing is a fairly horizontal,
8 rather than vertical, command structure. Would you accept that
10 "A. Yes, that's true. That's what happened. It's something
11 that really happened. Whichever villages were closer to where the attack
12 occurred, those villages went to assist."
13 MR. EMMERSON: And now tab 18, please.
14 [Video-clip played]
15 "Q. And again so that we're clear, during this month of July,
16 there had been a major Serb offensive, a major battle at Loxha in the
17 first -- the end of the first week of July. Is that correct?
18 "A. Not in the last week of July, earlier.
19 "Q. [Previous translation continues]... that may have been a
20 translation issue. The end of the first week of July was what I was
21 putting to you.
22 "A. Yes, end of the first week.
23 "Q. [Previous translation continues]...
24 "A. I think you're right. About the 5th or 6th.
25 "Q. And there was another major Serb offensive through the area
1 within a week or so of the swearing-in ceremony, wasn't there?
2 "A. Yes, there was.
3 "Q. ... just important to get our chronology clear. Now,
4 looking at this map you've told us it's depicting in a graphic way the
5 locations after the 10th or 12th of July, and we can see that you've
6 described Jabllanice as a staff HQ, and you described Glodjan as a staff
7 HQ. And I just wanted to understand from your perspective as an officer
8 on the ground in Baran, is that how you saw them as being on an equal
9 footing and independent of one another, those two staff HQs?
10 "A. Yes. At that moment, this was how it was. They were
11 independent. The same was true of us. We had no means and each of us
12 operated independently."
13 MR. EMMERSON: So that date's important because he's saying after
14 the battle ended on the 12th of July, they remained independent. So
15 that's a full three weeks following the 23rd of June minutes, but it's a
16 position he's describing going forwards after the 12th of July. Of
17 course, that was the very period where on the evidence Pal Krasniqi,
18 Skender Kuqi, Witness 3 and Witness 6 were detained at Jabllanice and a
19 few days before the escape attempt of which you have heard evidence.
20 And so we're left in this situation that in the absence of
21 anything specific to rely on, the Prosecution falls back on reputational
22 evidence, that slippery dangerous area of inference based on nothing but
23 tittle tattle. And you get a curiosity here, because in Mr. Balaj's case
24 they rely on evidence suggesting - some of it from the Serbian
25 intelligence - that Mr. Balaj had a fearsomely bad reputation. That
1 alone. So therefore he must be guilty. Whereas in Mr. Haradinaj's case,
2 quite the opposite thing is said. He had an incredibly good reputation
3 and was hugely popular and therefore he must be guilty. That's the
4 danger of this type of slippery unevidenced reasoning, but let's look at
5 whether it's fair what Mr. Rogers put to you. Let's look at whether --
6 try to derive from the testimony of people in Western Kosovo who thought
7 that Ramush Haradinaj was a war hero who protected them, a man who didn't
8 engage in dirty abuse, an honourable fighter, how it is that the
9 Prosecution seeks to turn that into evidence from which I invite you to
10 infer a joint criminal enterprise.
11 Can we start at tab 19.
12 [Video-clip played]
13 "Q. Did Ramush visit your brigade a couple of -- on a couple of
14 occasions there, accompanied by Sali Veseli and Idriz Balaj?
15 "A. Ramush came but Balaj was not with him. I did not see him.
16 He was not there. Sali came on his own and Ramush came on his own.
17 "Q. What was the purpose of the oath-taking ceremony in
18 July 1998?
19 "A. The aim of the visit was because we had made a request to
20 him. We had a great number of soldiers that wanted to join the KLA, and
21 we wanted them to pledge their allegiance and we wanted him to be present
22 in this ceremony so that he could see from close what these young men
23 were doing and how they were so eager to join the KLA.
24 "Q. Who's the 'he'? You're referring to Ramush Haradinaj there?
25 "A. Yes, of course, Ramush. We invited him and we wanted him to
1 be part of that solemn ceremony, in the oath-taking ceremony of the new
2 members of the brigade.
3 "Q. Why was it so important to you that Ramush participated in
5 "A. It was important because people loved him. People wanted to
6 see him and to get to know him from close by, because for them, Ramush
7 was an idol and he still is.
8 "Q. Did they see him as a strong, powerful commander?
9 "MR. EMMERSON: I appreciate Mr. Re may not be getting the
10 answer he wants, but to seek to put words in the witness's mouth through
11 the form of leading questions, in my submission, is not an appropriate
12 course. Let him ask the witness questions in a non-leading form and have
13 the answers that he gets.
14 "JUDGE ORIE: Mr. Re, could you reformulate the question or put
15 another question to the witness.
16 "MR. RE:
17 "Q. You said a moment ago that for people Ramush was an idol.
18 Why did they see him as a idol?
19 "A. I don't know. That's what people thought. They trusted
20 Ramush and they thought that he was a person who sacrificed his own
21 family to protect the whole population, and that's why he was considered
22 an idol. So he was not ready to sacrifice only himself but his whole
24 "Q. What was the feedback you were getting from these people
25 about Ramush's command style?
1 "A. Ramush had no time to command everywhere, but people trusted
2 him. They thought that if Ramush went there, there would be no problem
3 for them, for the people. This is something that occurred among the
4 people. That's how the people loved him."
5 MR. EMMERSON: Now, Mr. Rogers read to you an extract from the
6 evidence of Skender Rexhametaj on this question of Mr. Haradinaj's
7 authority, but -- but he -- he read only one passage and I'm going to
8 show you two, because they're put in proper context. First the one that
9 Mr. Rogers read to you in his closing speech. This is tab 20.
10 [Video-clip played]
11 "Q. Sir, I'll repeat the question for you. Can you tell us,
12 sir, whether KLA soldiers in the Dukagjin Zone respected
13 Ramush Haradinaj's authority and I'm referring to the time period from --
14 from prior to the 23rd of May, 1998, and after the 23rd of May, 1998."
15 MR. EMMERSON: I'm sorry we've jumped forward I'm afraid. Tab 20
16 it should be, first of all, which is from the transcript of
17 Mr. Rexhametaj's evidence in this trial at 1097.
18 [Microphone not activated]... video in that section, so I'll just
19 read the transcript. This is Mr. Menon asking about a passage in
20 Mr. Rexhametaj's witness statement:
21 "A. The fourth sentence of the Albanian version of my statement
22 should correspond to the English version which reads, 'Prior to the 23rd
23 of June ... he already had de facto authority over the Dukagini zone.'"
24 Mr. Rogers' point:
25 "... and I don't think," says Mr. Menon, "that there's any
1 dispute that the 'he' you're referring to is Ramush Haradinaj. Can you
2 tell me, sir, what you meant by the word 'authority'?
3 "A. I meant that based on the resistance that he put up with his
4 family, the incident had a lot of echo in the whole country and Ramush as
5 a result of that was widely respected for this resistance that he put up
6 in protecting his family and his village. And with the passage of time,
7 in fact, he became famous. Everyone -- most of the people knew him and
8 had a lot of respect for him, because, as I said, he put up that
9 resistance and protected his family and his village. This is my way of
10 thinking when I said that.
11 "Q. ... sorry, sir, continue," says Mr. Menon.
12 "A. So on the basis of what I just said people respected him
13 and ... if you're respected you enjoy authority ... I don't mean here
14 legal authority but the authority of a person who was successful in
15 protecting his family and his village and his people. This is my line of
17 MR. EMMERSON: So "authority" there is being misused by the
18 Prosecution in their closing submission. This is not any form of
19 authority over other people. This is authority in the sense that people
20 respected Mr. Haradinaj for what he had done, but let's look at how
21 Mr. Rexhametaj then goes on to explain it a little later. This is 1099.
22 It's tab 21.
23 [Video-clip played]
24 "Q. Sir, I'll repeat the question for you. Can you tell us,
25 sir, whether KLA soldiers in the Dukagjin Zone respected
1 Ramush Haradinaj's authority? And I'm referring to the time period
2 from -- from prior to the 23rd of May, 1998, and after the
3 23rd of May, 1998 -- or, excuse me, after the 23rd of June, 1998, it
4 should read.
5 "A. The population always respected him. The population was
6 suffering. Ordinary people were suffering, and he defended them. So
7 that's why they respected him.
8 "Q. And my question actually was specific to KLA soldiers, sir.
9 "A. The whole population --
10 "Q. Okay. Thank you, sir.
11 "A. -- wanted defence and they got it.
12 "Q. Okay. Thank you very much, sir. And can you elaborate,
13 sir, for us on why Mr. Haradinaj was appointed as the commander of the
14 Dukagjin Zone officially on the 23rd of June, 1998? Why was he selected?
15 "A. Because we proposed him.
16 "Q. Why did you propose him?
17 "A. Perhaps we were not sure that we, the others, could carry
18 that duty upon our shoulders. That's why we proposed him. He had shown
19 what he could do and we proposed him. Ramush could have refused, but he
20 took on the responsibility by respecting us and our proposal. He -- out
21 of his goodwill, he accepted the task, but he could have refused.
22 "Q. And, sir, when you say 'he had shown what he could do,' can
23 you clarify what you mean by that, sir?
24 "A. I mentioned it earlier. He had shown that he was a good
25 soldier, a good leader, and a person who could gather people around him;
1 and that's why we decided that Ramush be a co-ordinator for the subzones
2 earlier. The same logic worked later. There were five professional
3 officers there, and each of us could have taken that burden upon their
4 shoulders, but we proposed him, and he did not hesitate. He respected
5 our will and our proposal for him to be the leader.
6 "Q. And, sir, when you say that Ramush Haradinaj was a person
7 who could gather people around him, what do you mean by that, sir?
8 "A. I mean that he knew how to respect other people. He was a
9 good communicator. He was reasonable. So this was a person who could
10 gather people around himself. It was this that I meant. He was able to
11 discuss the problems that people had with them. He listened to their
12 concerns and that's why he had that reputation."
13 MR. EMMERSON: Your Honour, there's one final passage I want to
14 deal very --
15 JUDGE MOLOTO: Would that not be a convenient moment?
16 MR. EMMERSON: Simply that I'm reaching the end of the topic and
17 I'm happy to break and do one section after the break or do it now.
18 JUDGE MOLOTO: Okay, go ahead.
19 MR. EMMERSON: Simply as regards that last passage, obviously
20 Your Honours have seen that the testimony is that Mr. Haradinaj gathered
21 people around him because he was reasonable, knew how to respect them and
22 listened to their concerns.
23 JUDGE MOLOTO: Yes, we have heard, we have seen that. Just do
24 the last thing that you've said you wanted to do before the break.
25 MR. EMMERSON: Yes. Tab 22, please. This is Zymer Hasanaj from
1 the first trial.
2 [Video-clip played]
3 "Q. In paragraph 5, you refer to an expression: 'God in heaven;
4 Ramush on earth,' meaning that he had great authority. Then you say, 'No
5 one was superior to him.'
6 "I just want you to tell the Trial Chamber, the Judges, what you
7 mean by 'no one was superior to' Ramush.
8 "A. I -- I said this because from -- every time there was a Serb
9 attack until the KLA became engaged in the war, when the name became
10 known, Ramush -- that of Ramush Haradinaj, it was myself who put that
11 expression, 'God in heaven; Ramush on earth.'
12 "Q. What do you mean by 'no one was superior to him'?
13 "A. I thought that -- how can you put up a resistance to the
14 enemy. I didn't know that it was difficult to put up resistance. In
15 fact, it was very small resistance that was put up.
16 "Q. I'm not sure I quite understand your answer. I'm asking you
17 about why you say that no one was superior to him. What do you mean by
18 'superior to' Ramush?
19 "A. After his -- he became known, I don't know how it has been
20 translated there, but I personally gave this description. It was my
21 personal opinion.
22 "Q. And what do you -- what do you mean by it? That's what I'm
23 asking you: What do you mean by 'no one was superior to him'?
24 "A. He was good then and he's good now -- I mean, he's loved by
25 people. He's considered -- he is -- he's held in esteem by the Albanian
2 MR. EMMERSON: Thank you. That would be a convenient moment.
3 JUDGE MOLOTO: Thank you. We'll take a break and come back at
4 quarter to. Court adjourned.
5 --- Recess taken at 10.22 a.m.
6 --- On resuming at 10.46 a.m.
7 JUDGE MOLOTO: Yes, Mr. Emmerson.
8 MR. EMMERSON: I wonder if I may now to turn to the evidence that
9 you've heard concerning those people who were detained at Jabllanice and
10 what they say about whether they did or did not see Ramush Haradinaj
11 there at any time and what can be inferred from that.
12 First of all, you heard testimony of from Witnesses 75 and 76 in
13 connection with the detention of their relative who they said was
14 detained on several occasions but was held for a considerable period up
15 until the end of May and that they visited the compound on numerous
16 occasions and saw various members of the staff there, and they both
17 stated in terms that they never saw Mr. Haradinaj in Jabllanice on any of
18 those visits. That's transcript 1845 and P304, the witness 76 92 ter
19 statement at paragraph 13.
20 Witness 75 stated that it was Lahi Brahimaj who was in charge of
21 Jabllanice during the period he went there and accurately that
22 Mr. Haradinaj was not yet commander of the Dukagjin area.
23 The testimony of Shefqet Kabashi that was admitted in these
24 proceedings from the Limaj trial, he said that he had been based in
25 Jabllanice as a KLA soldier consistently from April through to
1 September 1998, and his evidence was that there was, during the whole of
2 that time, no one in a more senior position to Lahi Brahimaj in command
3 of Jabllanice, and there is no suggestion whatever in that testimony that
4 during the whole of that time he ever saw Mr. Haradinaj anywhere in
6 Now, we know he did go to two formal meetings there. We know he
7 did go to intervene on Skender Kuqi's behalf, and we know that he did go
8 on one occasion, according to Witness 80 at least, when he was surrounded
9 by other people and there were villagers present in the staff in the main
10 part of the village, not the so-called detection facility. But Kabashi
11 never saw him there.
12 So the suggestion that Mr. Rogers tried to make that
13 Mr. Haradinaj was a regular visitor doesn't appear on its face to be
14 consistent with the testimony of any of those witnesses.
15 But what about Witness 3? Witness 3 was on his evidence detained
16 at Jabllanice for a considerable period of time, escaped, was taken back
17 there. And of course he came across Ramush Haradinaj for the first time
18 when he got to Glodjan, and after that, as we've seen, nothing ever
19 happened to him again. In other words, he did not see Mr. Haradinaj at
21 What about Witness 6? Witness 6 is significant because as
22 Your Honours know, he was detained for six weeks from the 13th of June,
23 and his testimony, which has been admitted, is -- is that a day after the
24 escape on the 18th or 19th of July, he was freed within the confines of
25 the compound. In other words, he was -- to all intents and purposes, by
1 appearance he was working in the kitchens and free to move around the
2 compound, albeit that he was still detained. So it's not as though he
3 was locked in a room where he wouldn't have been able to see anybody
4 coming or going. He would have seen all comings and goings in and out of
5 the compound.
6 Let me read you his testimony from trial 1. This is page 5391.
7 He's asked about when Skender Kuqi goes to hospital, and he says:
8 "A. I don't know. I didn't see him. But when I took bread to
9 Pal Krasniqi, he," Skender Kuqi, "wasn't there any more.
10 "Q. And might that have been a day or two after the escape
11 attempt that you've described?"
12 And he says:
13 "One day after.
14 "Q. And from that point onwards, just so that we have the
15 picture, once again, there was only one person in detention, namely Pal
16 Krasniqi; is that correct?
17 "A. Yes.
18 "Q. You were still not free to leave, but to external appearances
19 you were wandering around the yard and washing the dishes and so forth;
20 is that right?
21 "A. That's right."
22 And then a little further down:
23 "Q. And just one final question on timing before I ask you one
24 or two other matters. Do you know how long it was after your -- you got
25 your relative freedom that the man from Zahaq arrived.
1 "A. One or two days after that, I can't be very precise.
2 "Q. Thank you. What I want to do now is just put one or two
3 passages to you, Witness 6, from first of all the witness statement that
4 you made in February and March 2004. That was the statement that you
5 made when you were shown some photographic line-ups, and you were shown a
6 line-up of photographs that included a photograph of Ramush Haradinaj. I
7 won't bother to pull it up on the screen, but I'm just going to read to
8 you the passage from the witness statement that you have signed and ask
9 you to confirm that it is correct. Having been shown the photograph
10 which was a line-up including a photograph of Mr. Haradinaj you said
11 this, and I'm quoting from your statement at paragraph 3:
12 "'I can identify Ramush Haradinaj. While his face has become
13 familiar to me after the war from several newspaper articles and
14 television programmes, I did not know him from the time of the war and
15 cannot remember seeing him in the KLA prison in Jabllanice.'
16 "I'll ask you, please, to confirm that that is a correct
17 statement of your evidence.
18 "A. Yes."
19 So Witness 3, who was there for six weeks and moving freely
20 around the compound from -- I'm sorry, Witness 6. Did I say 3? I do
21 apologise. And moving freely around the walled compound from around
22 about the 18th of July, he never saw Ramush Haradinaj there either. And
23 so we are left with Mr. Rogers' speculative theory as the only evidence
24 that the Prosecution can point to connecting Ramush Haradinaj to any of
25 these crimes, and the theory goes like this: You can be sure from the
1 testimony of the protected witness that the three boys were arrested and
2 taken to Jabllanice prior to the attacks by the Serb forces on Grabanice,
3 and you can be sure that the occasion when the protected witness saw
4 Ramush Haradinaj surrounded by a group of men inside the staff took place
5 after the attack on Grabanica, probably a week after. Therefore, they
6 must have been in detention all the way through at Jabllanice, and even
7 though the protected witness didn't say that he saw them there that day,
8 the Prosecution say Mr. Haradinaj must have known that they were there,
9 and therefore, the Prosecution say, he must be complicit in the joint
10 criminal enterprise.
11 That's, as I've understood it, is the way that Mr. Rogers is
12 finally driven to put his case.
13 The short answer is this: Whilst one cannot but admire the
14 forensic ingenuity with which he sought painstakingly to build the
15 elaborate edifice of inference that he's invite you go to draw, its
16 foundations rest on sand.
17 First of all, Your Honours are going to have to read the
18 testimony of the protected witness with care, because as regards the
19 dates, the days and the occasions, he was multiply inconsistent. The
20 suggestion, and it's made in the Prosecution brief at para 211 quotes:
21 "There can be no uncertainty that the Count 1 victims were
22 executed after Haradinaj's visit."
23 Simply cannot be derived on any rational view from a reading of
24 the testimony of the protected witness as a whole. He said in clear
25 terms when asked directly about the timing of those two incidents that
1 the incidents with the 20 or 30 villagers took place before the
2 ear cutting incident had occurred. That's T2414. He then underscored
3 that by making it clear on several occasions that the incident with the
4 villagers took place after the Serb attack on Grabanice but that the
5 incident with the boys being arrested and detained took place before
7 Now, Your Honours punctured the myth with a simple question in
8 the course of Mr. Rogers' submission: Do we know on the evidence when
9 the boys were taken to Jabllanice? Answer from Mr. Rogers: No, we do
11 That is the end of the matter. Because unless the Prosecution
12 could prove that beyond reasonable doubt, the date on which the boys were
13 taken to Jabllanice, they couldn't begin to invite you to return a
14 conclusion that they must have been there on the day that Mr. Haradinaj
15 was there with the 20 or 30 villagers. That's the end of it. But even
16 if it weren't the end of it, and even if they were there, and even if it
17 was possible to draw that inference, the protected witness didn't see
18 them there, so why should Mr. Haradinaj have seen them there? Because
19 the protected witness and Mr. Haradinaj were in the same building, the
20 staff, in another part of Jabllanice. So how can Mr. Rogers suggest that
21 Mr. Haradinaj must have known that they were there when the protected
22 witness himself -- if -- even on Mr. Rogers' completely speculative
23 theory, didn't know that they were there at that time.
24 The fact of the matter is that -- that -- and I'm going to invite
25 Your Honours to -- and it will need to be done with care, to go through
1 each and every time when the witness tried to locate the dates of
2 occasions and you will see that they are wholly inconsistent the one with
3 the other. So for example, he -- there is a reference to a village
4 called Bucan in the evidence and to detentions having taken -- perhaps
5 this part I ought to do in private session, in fact.
6 JUDGE MOLOTO: May the Chamber please move into private session.
7 [Private session]
11 Page 2899 redacted. Private session.
2 [Open session]
3 THE REGISTRAR: Your Honours, we're in open session.
4 JUDGE MOLOTO: Thank you, Mr. Registrar.
5 Mr. Emmerson, the Chamber did say it's not going to impose time
7 MR. EMMERSON: I'm moving to the end.
8 JUDGE MOLOTO: You are sharing this day with two other counsel.
9 How long are you going to be?
10 MR. EMMERSON: I shall be no longer than another 20 minutes and
11 then I'll be finished.
12 JUDGE MOLOTO: Twenty minutes.
13 MR. EMMERSON: Yes. I've obviously timed my submissions in the
14 light of the indication that Your Honours gave this morning.
15 JUDGE MOLOTO: Indeed, but this time must be shared equally
16 with -- at least the other two must also have enough time.
17 MR. EMMERSON: Yes, but Your Honour indicated this morning that,
18 if necessary, we would go into tomorrow.
19 JUDGE MOLOTO: The first preference is we finish today.
20 MR. EMMERSON: Well, let me -- let me -- let me move things along
21 quickly if I can then.
22 Can I -- can I then just deal briefly with the evidence of
23 Zoran Stijovic because Mr. Rogers introduced him when he opened the case
24 on the basis that the documents that Mr. Stijovic produced were given to
25 the Trial Chamber "for what they're worth." And he had to make that
1 concession because over a period of time Stijovic had acknowledged, in
2 one form or another, although it had to be drawn from him like teeth,
3 that the material that he was producing was often anonymous and -- and
4 that the methods by which it was obtained included bribery, blackmail,
5 and on the evidence the possibility, the real possibility that couldn't
6 be excluded of torture.
7 But in their closing brief this material is quoted liberally and,
8 indeed, Mr. Rogers cited the testimony of Mr. Stijovic specifically to
9 you in order to justify the suggestion that there was a close association
10 between Mr. Haradinaj and Mr. Balaj. So we have to deal with it. And
11 can I deal with it just by taking you to a few short passages, please, in
12 the video evidence of Mr. Stijovic from trial one and then from this
13 trial, because you'll see how his testimony evolved.
14 First of all, tab 23. This is trial one when he begins to
15 explain the RDB secret service's methodology in obtaining the material
16 that the Prosecution have chosen to put in evidence and rely on.
17 [Video-clip played]
18 "A. ... by your leave, I propose to use a term 'a live source'
19 which means that it's a human being providing information to us. I think
20 that would avoid any further miscommunication and help us avoid confusion
21 in the future.
22 "Q. Two-hundred people you referred to in the KLA before, are
23 they live sources?
24 "A. Yes.
25 "Q. And how were people in that category rewarded by the state
2 "A. The motivation of these people in their work for the
3 State Security Service was diverse, just like anywhere else. The basic
4 element was money. The second possible motive was of political nature
5 where they did not agree or they disapproved of -- of various activities.
6 And the third motive was to compromise somebody. If somebody -- if we
7 had information about somebody that was of compromising nature, then we
8 would resort to blackmailing. I'm using that term because this is what
9 it amounts to everywhere else in the world. And in this category, we are
10 mostly dealing with partially verified information, and these people
11 worked under a pseudonym. They would only be mentioned under pseudonym
12 in various reports. If you wish, I can explain our methodology and tell
13 you how we made contact with such people.
14 "A. If it assists the Trial Chamber.
15 "JUDGE ORIE: I leave it in your hands, Mr. Re.
16 "MR. RE: I anticipate the Defence will ask the question so I
17 might as well get in first.
18 "MR. EMMERSON: I'd certainly like to hear a little bit more
19 about the blackmail, if possible, in chief."
20 MR. EMMERSON: Pause there.
21 Mr. Stijovic had no problem using the word blackmail in trial
22 one, and he does give a little further evidence of the fact that in a
23 society riven by blood feuds evidence that one person A was having an
24 affair with the wife of another person B was a very potent tool. It was
25 really effective blackmail. Can we just look at how he explains that in
1 trial one.
2 [Video-clip played]
3 MR. EMMERSON: Tab number 26 [sic].
4 [Video-clip played]
5 "Q. ... what I was asking you a moment ago. When armed with
6 that information of 'immoral behaviour,' how did that in your
7 professional experience affect the assessment of the reliability of the
8 information you received from those immoral-type people?
9 "A. The quality of such information in such an atmosphere with
10 predominating patriarchal moral principles, when one finds out that there
11 is a case of adultery among relatives, that there is a situation which
12 could be of compromising nature, not only for the persons involved but
13 also for the entire family that could lead to some very typical
14 consequences such as blood revenge or blood feud which exists in Kosovo
15 and Metohija, then this was a very good tool for recruiting a person.
16 And the higher the level, the greater the possibility to keep that person
17 under the control."
18 MR. EMMERSON: Something that obviously happened between trial
19 one and trial two, because Mr. Stijovic didn't seem to like the word
20 blackmail in trial two. Can we look at tab 25, please.
21 [Video-clip played]
22 "JUDGE MOLOTO: What I wanted to ask you, Mr. Stijovic, is in
23 that example of A and B, that whole explanation, that whole situation
24 that you explained to us, what do you call that in one word?
25 "THE WITNESS: [Interpretation] I call it choice. Either you
1 work for us or we will disclose all this -- all these immoral things to
2 your friend.
3 "JUDGE MOLOTO: My question was in one word. You said "choice."
4 Thank you so much.
5 "THE INTERPRETER: Interpreter's correction: The relationship
6 was between the wife of A and B.
7 "THE WITNESS: [Interpretation] You can call it blackmail. It
8 only occurred to me now. I'm trying to find another appropriate term in
9 Serbian but I'm unable to.
10 "JUDGE MOLOTO: I'm not asking you what I could call it. I'm
11 asking you what you call it in one word.
12 "THE WITNESS: [Interpretation] Blackmail.
13 "JUDGE MOLOTO: Thank you."
14 MR. EMMERSON: So that's bribery and blackmail, but -- but -- but
15 almost more serious than all of that in terms of compromising the
16 integrity of the material that Mr. Rogers relies upon and cited in his
17 closing submissions yesterday is torture.
18 Now, what you're about to see is me cross-examining Mr. Stijovic
19 in the first trial where he had put in evidence certain statements from
20 two witnesses called Bekim and Naser Kalamashi concerning allegations of
21 crimes by the KLA in the Dukagjin region, and those witnesses had then
22 been interviewed by the Office of the Prosecutor and had made statements
23 to the Prosecutor saying that they were tortured inside Gjakove police
24 station to make the witness statements that Mr. Stijovic had produced and
25 that the Prosecution themselves had produced.
1 Sorry, I'm -- I'm corrected. This was in -- in -- in the
2 retrial? No, it wasn't. It was in the first trial. Well, I think it
3 was in the first trial. We'll see in just a moment. So I'm putting to
4 him, first of all, a lengthy passage -- maybe it was the retrial. I'm
5 putting to him, first of all, a lengthy passage of an allegation of
6 torture and we see how he responds to it, because, bear in mind, he's put
7 these statements forward as reliable, that is to say, the statements
8 obtained by the Serbian intelligence, and the Prosecution have put them
9 forward as reliable evidence. Can we a look at tab 26, please.
10 [Video-clip played]
11 "MR. EMMERSON: Perhaps we can go back to the witness statement,
12 please, and pick it up at paragraph 15 at the bottom of the page after
13 the men had been stripped naked and beaten:
14 "Q. 'We had to get on trucks and on halfway to Gjakova the
15 police came and we were ordered to get on police jeeps and taken to
16 Djakovica SUP. Then we were kept in the basement of the SUP premises for
17 the following three days under constant beatings and torture. The police
18 were coming to the basements and taking one by one for questioning. The
19 interviews took place in the office on the fourth or fifth floor. I was
20 arrested and kept there with other 11 co-villagers.
21 "'When I had been taken for interview in the office' --
22 "JUDGE MOLOTO: Are you going to read the whole thing?
23 "MR. EMMERSON: Yes, I am, because it's obviously being
24 translated for the witness.
25 "JUDGE MOLOTO: I beg your pardon.
1 "MR. EMMERSON:
2 "Q. 'When I had been taken for interview in the office was
3 sitting a man in civilian and asking questions in Serbian language. The
4 only phrases he uses in Albania were as follows: Why are lying to us
5 that you had not been KLA? Did you have an arm? Fuck your mother. Then
6 all questions were only in Serbian language which I did not understand.
7 I'd been interviewed for about ten of times but in different offices of
8 Djakovica SUP HQ. But the interviewer was always the same and did not
9 make any written notes.
10 "'During the interviews, apart from the interviewer, there were
11 always present two other civilians who were beating me with baseball bats
12 all over my body. On the 6th of September,' that's the day after the
13 statement you refer to, 'I recall that a man, I do not remember whether
14 in uniform or civilian clothing, came to the basement and ordered us to
15 sign some document. We were asking if he has translated to read us what
16 we are going to sign. The man replied, You will see translator. Then we
17 were beaten again and forced to sign document without knowing the
19 "'In October 2006, the ICTY ... read over to me a statement
20 registered in the ICTY archives ... I already said, it could be the same
21 as I signed in the premises of SUP in Djakovica because I did never sign
22 any other document. But I would like to raise my objections regarding
23 the fact that I signed only one page. But the statement with the content
24 I was acknowledged today was consisting of four pages. I would like to
25 stress that there is no one word of true. I did not say anything what
1 was mentioned in this statement as below ...'
2 "Now, if I've understood what you've told us already, correct
3 me, Mr. Stijovic, you know nothing about the circumstances in which these
4 men were detained; correct?
5 "A. First of all, I don't know that they were detained. I don't
6 have any information to that effect.
7 "Q. Well, there's, as I said to you, testimony from the senior
8 officer at SUP Djakovica that they were detained as well as there's the
9 evidence in the statement you've read. But the question I'm asking you
10 is: If they were detained when the statement was taken that you relied
11 upon, you don't know whether they were tortured or not, do you?
12 "A. Well, I don't know, but if you permit me, Your Honours, to
13 say just a couple of sentences.
14 "Q. Well, are they in answer to the question? I thought you'd
15 answered the question. You don't know one way or the other; is that
16 right? I mean, a minute ago you told us you didn't know anything about
17 the detention, Mr. Stijovic. Did you or didn't you?
18 "A. Your Honours, this is a complex question. I cannot reply
19 with a yes or a no to this question. If you permit me to say a couple of
20 sentences, perhaps it will be clearer, with all due respect,
21 Mr. Emmerson.
22 "Q. Before you do, Mr. Stijovic, before you add whatever it is
23 you want to add, it is a very simple question and it is capable of an
24 answer, yes or no. Do you know anything of the circumstances of the
25 detention of these 11 men including Naser Kalamashi between the 3rd and
1 the 6th of September, 1998? Do you know how they were treated during
2 those three days, yes or no?
3 "A. No.
4 "Q. Thank you. So when you summarises the content of the
5 statement and put forward its contents as reliable, you have no idea
6 whether they were reliable or not, do you?
7 "A. No.
8 "Q. Thank you.
9 "JUDGE MOLOTO: I guess that's the end of your cross-examination?
10 Thank you so much."
11 MR. EMMERSON: Your Honour, you'll be pleased to hear that's the
12 last passage of video I need to play before I move to the concluding
13 remarks, but -- but -- but that is the source of the material that
14 Mr. Rogers chooses to put before you. At the beginning of the trial it
15 was shoveled in for what it was worth. At the end of the trial it's
16 cited in the closing speech and in the closing brief.
17 Again, prosecuting serious cases carries responsibilities.
18 Mr. Rogers then took me to task in his closing speech for
19 referring to a document that was not admitted in evidence and he told you
20 that had been done by the Haradinaj Defence at paragraph 185. Let me
21 tell you what the document is and why it's not an objectionable point
22 because it is one of Mr. Stijovic's allegations that Mr. Rogers is yet
23 again pedaling.
24 In support of the indication that there are KLA blacklists of
25 targets, we've already seen that he relied on a FARK list, not a KLA
1 list, that wasn't a list of targets but a list of missing and/or wanted
2 persons by Witness 17. So that was the first list. The second list put
3 forward by the Prosecution is a list that was said to have been found by
4 the Serbian police when they overran Mr. Haradinaj's family compound on
5 the 24th of March. He relies on that list. Where does he get evidence
6 of that list from? He gets it from Mr. Stijovic's witness statement.
7 Now, Mr. Stijovic, in his witness statement, refers to the fact that
8 there was found in the premises a list of Albanians who were suspected of
9 co-operating with the Serbian forces. That's to be found at transcript
10 570, tab -- line 13. That testimony was based on his Rule 92 ter
11 statement relating to the search of the Haradinaj family compound on the
12 24th of March which described that document as a list of individuals
13 targeted for assassination of Serb spies. That is P121, paragraph 42.
14 Now, the ruling of the previous Trial Chamber was that any aspect
15 of Mr. Stijovic's 92 ter statement that was not directly supported by
16 documentary evidence would simply be ignored and the Trial Chamber then
17 went through the documents that he produced, throwing a very large number
18 of them just exactly where they belonged, namely in the wastepaper
19 basket. One of them was that report on the basis of which that passage
20 appeared in the 92 ter statement and on the basis of which the evidence
21 was elicited from the witness. That report was not admitted into the
22 original trial and the Prosecution didn't seek to admit it in this trial.
23 So, to that extent, the allegation was unsubstantiated, remains
24 unsubstantiated, and has no supporting evidence or probative value. But,
25 more importantly, the report itself and the reason why it was chucked out
1 rightly by the last Trial Chamber says in terms that there's a list of
2 names of Albanians but the MUP, the police who found it, didn't know
3 whether it was a list of KLA members or KLA targets.
4 Now, if that isn't misleading prosecuting, I really don't know
5 what is. That's the blacklist allegation.
6 KLA communiques. The Prosecution realise again in this trial on
7 KLA communiques. We dealt with this in our closing brief at paras 174 to
8 176. Can I put it very briefly. The man who wrote them gave evidence in
9 the first trial. His name is Jakup Krasniqi. His evidence has been
10 admitted. He says in terms that he didn't have any of the information or
11 any conversation at any time with Ramush Haradinaj. They do not reflect
12 any policy of Ramush Haradinaj. They were drafted by the General Staff,
13 which, as you've heard, was this somewhat fanciful body floating around
14 the Albanian border that never met and didn't even know who the other
15 members of the General Staff were. They were propaganda tools. They
16 included lies, and, above all, none of them refer to Mr. Haradinaj. None
17 of them were seen by Mr. Haradinaj before they went out. None of them
18 were signed by him or based on information from him, and they involve
19 incidents outside the indictment area and outside the indictment period.
20 None of them were authored by or emanated from Mr. Haradinaj, and they do
21 not and cannot reflect any policy of his. They are worthless and that,
22 no doubt, is the reason why the former Trial Chamber regarded them in
23 that way.
24 So, Your Honours, that really brings me to three short points in
1 First of all, there are two remaining areas which, in our
2 submission, are simply irrelevant to this case that the Prosecution have
3 relied upon. There are two allegations that were not even -- they were
4 called but not even referred to in the judgement in the last case because
5 they were so irrelevant in relation to this allegation about Jabllanice.
6 The first is the suggestion that FARK was actively excluded by
7 Mr. Haradinaj and that there was this confrontation that took place
8 shortly after their arrival. We dealt with that in detail in our brief,
9 taking it in a few short sentences. It had nothing whatsoever to do with
10 Jabllanice. It was a confrontation between two forces who were still
11 then in conflict with one another and where the soldiers at issue had
12 driven without authorisation into the area of responsibility of a force
13 with whom they were in confrontation. And as the witness himself
14 accepted under the rules of engagement, they could have been shot dead on
15 sight, but it was a conflict, regrettable as it might have been, that was
16 resolved very shortly afterwards when the two forces came to agree on the
17 distribution of officers and amalgamate over a period time. And you'll
18 remember the evidence in cross-examination concerning that. It's got
19 nothing to do with an allegation to ill-treat detainees in Jabllanice or
20 to mistreat, torture or kill civilians. It was a conflict between
21 soldiers and is miles away. It's not charged on the indictment and
22 though it was the subject of evidence in trial one, it doesn't even get a
23 mention in the judgement, rightly so, because it's irrelevant and we'd
24 ask you to take the same approach.
25 And, finally, the Stojanovic allegation. Again, very briefly,
1 before the start of an armed conflict, spontaneous response by the
2 villagers of Glodjan following that dreadful attack on the 24th of March,
3 and their collective belief that the Stojanovics had not only provided
4 information but their correct understanding that the Stojanovic home had
5 been used as -- by the Serbian forces as, in effect, a military point
6 from which to launch the attack. There's no evidence that Mr. Haradinaj
7 was present. The evidence that was called at the original trial in that
8 regard was regarded as unreliable, and there is no evidence that he
9 participated in any way or condoned it, and -- and whatever the position
10 may have been, this was a spontaneous act of revenge by a community that
11 had been ravaged days before by a dreadful attack that, let's not forget,
12 was intended to be another Prekaz. Children shot point blank. And their
13 response to a Serb family in their midst who allowed their property to be
14 used to launch that attack. So it really has nothing whatever to do with
16 Your Honours, there's just two final comments, if I may.
17 First of all, I said to you earlier on that you -- your law
18 clerks were going to need very, very carefully to look at every single
19 footnote in the Prosecution's closing brief; because, regrettably, I have
20 to report to you that in a large majority of cases, the footnotes do not
21 support the citation, and in many cases they run flatly contradictory to
22 what the Prosecution claim the material represents. I'm not going to
23 take time going through it because it will take too long, but we have
24 prepared and will now hand up a schedule of the worst misrepresentations
25 when you trace through the material in the footnotes.
1 And, finally, this, if I may: I -- I -- I opened the submissions
2 that I made to you by saying a little about Ramush Haradinaj's as a
3 soldier and as a politics. As a soldier, we say he fought an honourable
4 war and that is why he enjoined the popularity that he did. As a
5 politician, he forged consensus. He went into coalition government with
6 the LDK critically, and he was known for the protection that he sought to
7 extend to all national minorities within Serbia including the Serbs that
8 had remained behind and other national minorities, a government of
9 national unity. What is critical about that is that has been his policy
10 throughout, the protection of civilians, and the evidence in relation to
11 that, in our submission, is overwhelmingly clear.
12 The tragedy of this prosecution which has now gone on for seven
13 years isn't just a personal tragedy for Mr. Haradinaj and his family,
14 it's also a tragedy for Kosovo, because they have been deprived of a
15 leader who could have eradicated corruption and brought Kosovo fully into
16 the international community, and they've been deprived of that through
17 irresponsible prosecuting from the start when Carla Del Ponte went
18 shopping and fishing for prosecutors who would take the brief after she
19 acknowledges that she'd been advised there was no case, to the very end
20 when Mr. Rogers shovels in evidence produced by Zoran Stijovic, seeks to
21 rely on it and then misrepresents it in his submissions and, indeed, has
22 the gall to criticise me for putting that right.
23 I just want to finish, if I may, by reminding Your Honours that
24 at the back of the closing brief and, indeed, in the back of this bundle
25 you have statements from the -- first of all, the special representative
1 of the Secretary-General of UNMIK who was effectively running Kosovo
2 during the period that Ramush Haradinaj was prime minister; that is,
3 Soren Jessen-Petersen, who has worked for the UN for 30 year and -- and
4 was based first in Sarajevo, then in Macedonia, and then as SRSG in
5 Kosovo from 2004 to 2006. And he describes Mr. Haradinaj in these terms:
6 "I was impressed by his performance as prime minister. He
7 provided strong leadership, worked hard and maintained constructive
8 relations with all citizens of Kosovo, political parties and the
9 international community, including UNMIK. He was particularly affective
10 in steering substantial progress on the implementation of the standards
11 for a multi-ethnic democratic and law abiding Kosovo which the
12 international community had established as criteria for leading Kosovo
13 towards the beginning of the talks to determine the status of Kosovo. In
14 that connection, the situation and the treatment of the minorities and
15 very -- are very important. The Kosovo Serbs were of special
16 significance, and as prime minister, Mr. Haradinaj took several
17 initiatives to reach out to the Kosovo Serbs through personal action or
18 by urging his cabinet members and citizens of Kosovo to do likewise."
19 He then describes Mr. Haradinaj's resignation and voluntary
20 surrender to The Hague, a decision which was taken by Mr. Haradinaj in
21 recognition of the fact that if Kosovo wanted to be treated as a state
22 and welcomed into the family of nations, then its prime minister needed
23 to behave like a statesman and set an example and come here and face a
24 fair trial. Unfortunately, he has not faced a fair prosecution.
25 What does Soren Jessen-Petersen say about it? The same
1 afternoon, that is, when the indictment came through, Mr. Haradinaj --
2 MR. ROGERS: I'm sorry to interrupt, but I don't think either of
3 these statements are admitted into evidence.
4 MR. EMMERSON: They are. They're both appended to our closing
5 brief --
6 MR. ROGERS: [Overlapping speakers] I know they're appended to
7 closing brief [overlapping speakers] --
8 MR. EMMERSON: [Overlapping speakers] together with -- together
9 with a statement indicating they'd be referred to in closing submissions.
10 No objection has been taken in relation to that.
11 MR. ROGERS: But that's a different point.
12 MR. EMMERSON: Well, you had your opportunity to object.
13 MR. ROGERS: Just a moment, please. The question is whether or
14 not they're admitted into evidence and they're not.
15 MR. EMMERSON: Unfair to the last, Mr. Rogers. I'll ask
16 Your Honours for a ruling.
17 [Trial Chamber confers]
18 JUDGE MOLOTO: The Chamber accepts the statements.
19 MR. EMMERSON: Thank you.
20 JUDGE MOLOTO: Thank you.
21 MR. EMMERSON: "The same afternoon as the indictment was received
22 Mr. Haradinaj had informed all concerned, had announced his resignation,
23 and had also been helpful in arranging for the surrender of his two
24 co-indictees. In his public announcement he appealed for calm in Kosovo,
25 and in my statement, I did the same while at the same time regretting the
1 departure of the able prime minister while commending him for his example
2 in co-operation with the Tribunal. I also express my regret that I would
3 no longer be working with a friend, a statement that raised many
4 eyebrows, but for me it is clear that a friend is somebody I can trust."
5 Klaus Reinhardt --
6 JUDGE MOLOTO: I was just going to assure you that the Chamber
7 has read even the next one.
8 MR. EMMERSON: I'm grateful. Would Your Honours just permit me
9 to place one passage on the record in those circumstances, a very short
10 one. Klaus Reinhardt a -- a 41-year star general in the German armed
11 forces was commander of KFOR, the International Peacekeeping Force in
12 Kosovo, whilst Mr. Haradinaj was -- a -- in -- prime minister. And he
13 says this:
14 "Mr. Haradinaj is a highly intelligent and honest man whom I
15 trusted whole-heartedly and whose advice I sought actively. He never let
16 me down, nor did he ever misuse my confidence in him. I enjoyed his open
17 and convincing character, his charismatic leadership, his absolute
18 reliability, and his deep humour. Mr. Haradinaj is a born leader
19 dedicated to changing the poor living conditions in Kosovo and to
20 stopping the ethnic fighting among the peoples of Kosovo. He was and is
21 a man with a vision for a better future for the different ethnic groups
22 in Kosovo, in particular for all the minorities. He was the only
23 Albanian Kosovar leader I met who always asserted how important it was to
24 reconcile with the Serbs and other minorities and to give all refugees a
25 fair chance to resettle in Kosovo. He didn't say that to please me, but
1 he was, I believe, deeply convinced that otherwise the internal struggle
2 in Kosovo would never stop and the people of Kosovo would never get a
3 chance for a better and peaceful future."
4 That is what the Prosecution in this case, based as it has been
5 from start to finish on evidence which wouldn't hang a cat, has deprived
6 Kosovo of. We invite you to show Mr. Rogers and the Office of the
7 Prosecutor the door.
8 JUDGE MOLOTO: Thank you, Mr. Emmerson.
9 Mr. Guy-Smith.
10 MR. GUY-SMITH: My turn?
11 JUDGE MOLOTO: Your turn, sir.
12 MR. GUY-SMITH: If I could impose upon Mr. Emmerson for the
14 JUDGE MOLOTO: Mr. Emmerson.
15 MR. GUY-SMITH: This is, as you well know, is a retrial, and we
16 are not on virgin territory. Convictions and acquittals have taken place
17 concerning these men predicated on the testimony of the witnesses who
18 have been discussed with you thus far and who you, we trust, will review
19 in depth and extensively. We believe that there's little, if any, doubt
20 that a vigorous examination of the first trial and perhaps the necessity
21 of sitting and watching the actual testimony may well be required.
22 It's important to remember something here, and it seems to have
23 been forgotten, which is in the first trial in which there was a full
24 acquittal for Mr. Balaj, the gentleman with the hideous reputation, no
25 affirmative evidence was presented on his behalf because the Prosecution
1 failed to prove the case against him. And in this trial, once again from
2 the outset, let us be very clear that the Prosecution has failed to prove
3 the case against him beyond a reasonable doubt. He is entitled again to
4 an acquittal. Cast as many aspersions as you wish, Mr. Prosecutor.
5 Discuss his foul or vile reputation as much as you want. It does not
6 change the fact that the evidence that has been presented is wanting, in
7 the first instance, in the second instance, and in the final instance.
8 Now, I've given a fair amount of thought to a particular part of
9 my discussion and at one point thought it perhaps would be something to
10 avoid, but having listened to the remarks of yesterday and having once
11 again revisited the testimony of particular witnesses today, I feel it
12 incumbent to remind all of us that this is not a boxing match. This is a
13 court of law, and in a court of law there are certain duties and
14 obligations that devolve to the parties and specifically to the
15 Prosecution, because the Prosecution is the representative of not an
16 ordinary party to a controversy.
17 Therefore, in a criminal prosecution its interest is not that it
18 shall win a case but that justice shall be done. As such, the Prosecutor
19 is in a peculiar and very definite sense the servant of the law. The two
20 fold [indiscernible] of which is that guilt shall not escape or innocence
21 suffer. He may prosecute with earnestness and vigour. Indeed, he should
22 do so. But while he may strike hard blows, he is not at liberty to
23 strike foul ones. It is as much his duty to refrain from improper
24 methods calculated to produce a wrongful conviction -- let me repeat
25 that. It is as much his duty to refrain from improper methods calculated
1 to produce a wrongful conviction as it is to use legitimate means to
2 bring about a just one.
3 That's a quote from a case in the United States a Supreme Court
4 case called Burger v. United States. It is a quote which certainly
5 recognises and articulates the duty of a prosecutor, particularly in a
6 criminal trial.
7 But lest there be any doubt that that standard is perhaps too
8 high, promulgated here in the International Criminal Tribunal for the
9 former Yugoslavia, Prosecutor's regulation number 2 since 1999, standards
10 of professional conduct for Prosecution counsel, 2, section 2(e).
11 In the conduct of investigations, in the conduct of trial,
12 pre-trial, trial, and appellate proceedings, Prosecution counsel will
13 adopt the highest standards of professional conduct. A prosecutor
14 expects them consistent always with the letter and spirit of the relevant
15 Statute and Rules of Procedure and Evidence:
16 "(e) to demonstrate respect and candour before the Tribunal, and
17 not to knowingly make an incorrect statement of material fact to the
18 Tribunal, or offer evidence which Prosecution counsel knows to be
19 incorrect or false - should Prosecution counsel become aware that a
20 statement made to the Tribunal is incorrect, or that evidence presented
21 to the Tribunal is false, he or she shall take all the necessary steps to
22 inform the Tribunal as soon as possible."
23 It has been recognised that intentionally misstating the evidence
24 or misleading the fact-finder regarding permissible inferences to be
25 drawn, which in this case is central to the Prosecution's theory that you
1 draw a series of inferences that such behaviour is misconduct. How you
2 choose to deal with that directly reflects on how you choose to view the
3 evidence that has been presented to you, and, thus far, it is clear that
4 you have received evidence from the Prosecutor which came about through
5 bribery, through blackmail, through torture, and there have been
6 misstatements. And let's start with the issue of misstatements, and
7 specifically as it relates to Idriz Balaj.
8 Paragraph 18 of their brief:
9 "It was like a secret, a public secret, everything which happened
10 in Dukagjin if it was not proved then everybody said this was done by
11 Togeri (that is what we heard, and that was how it was -- and that was
12 how it happened. Everything bad that happened, it was attributed to the
14 Well, if that was in fact what the gentleman had said, pretty
15 problematic statement and a troublesome one, but that's not the full
16 quote. The brackets were left out. The information that was contained
17 in those brackets were left out and I will read it again:
18 "It was like a secret, a public secret, everything which
19 happened in Dukagjin if it was not proved then everybody said that this
20 was done by Togeri. However, this is only hearsay and there is nothing
21 confirmed. This is what we heard and that was how it happened.
22 Everything bad that happened it was attributed to the Togeri."
23 That's a very different statement.
24 And there's something else which was said in that same context:
25 "I'd like to say something else, that Toger was not somebody
1 known to the population. He came to assist in the war so people mention
2 his name."
3 In the remarks yesterday and also cited in the brief, I believe
4 it's in their brief at paragraph 46, footnote 156, this is concerning
5 testimony from John Crosland, it's used as a quote to establish that the
6 KLA were involved in the murder of six Albanians deemed Serb
7 sympathisers. And Mr. Crosland did, in fact, say that, but he went on to
8 say the following, and this is another example of which there are many.
9 The brief is legion with these examples, the following, and asked a
10 question - this is P9 at page 1882- concerning the same issue:
11 "Q. Did you see the bodies yourself?
12 "A. We did see the bodies but there was really no conclusive
13 evidence as to how they came there and who had shot them and who had shot
14 whom. This is all part of, I said, the fluid situation that prevailed
15 throughout 1998 and 1999."
16 Now, if the testimony that was received in this trial was that
17 the witness didn't know how the bodies got there, didn't know who had
18 shot them, do you think it's misleading for it to be suggested to you
19 that that testimony, that that gentleman's testimony stood for the
20 proposition that KLA killed people because they were Serb sympathisers,
21 because that's what you're being asked to infer, and that's an important
22 inference here for the Prosecution.
23 But it's worse than that, actually, for a moment in dealing with
24 the issue of Serb sympathisers, specifically in dealing with the issue of
25 Idriz Balaj who -- who is claimed to have targeted collaborators and
2 P53. Cufe Krasniqi discussing specifically the issue of a
4 "Q. He received permission from Ramush Haradinaj and Togeri. Is
5 that accurate?"
6 Starting at page 5840:
7 "A. Well, we're talking about Sali Shkreli now who was a
8 collaborator of the Serbs, together with his family, and he was
9 interrogated. After the police withdrew from Gallapek station, Sali
10 expressed his wish to become a member of the KLA to protect his own
11 village. He came and said that. Ramush, Toger, and whoever else was
12 with him, they had said that he was free to move in the area. I did not
13 see that paper. He told me that he'd been left free to move around in
14 the area. Soldiers also told me he'd been given permission to move
15 freely; however, who gave him that permission, I don't know.
16 "Q. But the information you've given us was that he was given
17 permission to move around the area by Ramush Haradinaj and Togeri;
19 "A. Yes, correct ..."
20 And then he goes on.
21 This is not the picture that has been painted of Idriz Balaj.
22 This is not the evidence that has been argued by the prosecution
23 concerning Toger, a man who in the face of knowledge of a collaborator
24 which as far as Mr. Rogers has posited means a death sentence gave him
25 permission to move in an area and to be free.
1 What it's inference to be drawn? Now, there's an inference to be
2 drawn and we're dealing with the issue of circumstantial evidence. I
3 think we all know the answer. The conclusion to be drawn from
4 circumstantial evidence has to be if it's for guilt the only conclusion
5 that's available. Here you have affirmative, undisputed evidence that
6 suggests an analysis entirely distinct from that which has been offered.
7 "I always thought it better to doubt before I decide then to
8 expose myself to the misery after I had decided of doubting whether I had
9 decided rightly and justly."
10 It's a quote from Lord Eldon discussing the issue of reason
11 doubt. And in defining reasonable doubt which --
12 JUDGE MOLOTO: May I interrupt you?
13 MR. GUY-SMITH: Yes.
14 JUDGE MOLOTO: You're obviously going into a slightly new topic.
15 MR. GUY-SMITH: I'm stopping right now, Your Honour.
16 JUDGE MOLOTO: Thank you so much for your kindness. We'll take a
17 break and come back at half past 12.00. Court adjourned.
18 --- Recess taken at 12.00 p.m.
19 --- On resuming at 12.30 p.m.
20 JUDGE MOLOTO: Mr. Guy-Smith.
21 MR. EMMERSON: Just before Mr. Guy-Smith goes on, Your Honour. I
22 am with my -- with Mr. Haradinaj's concent I have to absent myself for
23 the remainder of this session for official reasons. I have official
24 duties that I need to attend to later on today, so I simply wanted to
25 mention that to Your Honours so you didn't consider my absence as a
1 discourtesy in any way. Mr. Dixon, of course, will deal with any issues
2 that may arise.
3 JUDGE MOLOTO: Thank you, Mr. Emmerson. You had mentioned this
4 before the closing arguments began.
5 MR. EMMERSON: Thank you very much.
6 JUDGE MOLOTO: Thank you so much.
7 Mr. Guy-Smith.
8 MR. GUY-SMITH: Safe travel.
9 We were embarking on a discussion, brief, of reasonable doubt,
10 and I think the Court spent a moment with what is reasonable doubt
11 because of the type and quality of evidence that has been presented to
12 you during this trial. And I appreciate, of course, that Your Honours
13 are well familiar with not only the concept but the importance of that
14 concept in a criminal trial, so I don't wish to offend, and I won't spend
15 a long time on it.
16 It's been suggested and I think it's a fair consideration that it
17 is such a doubt as in serious affairs that concern you, you would heed.
18 That is such a doubt as would cause reasonable men and women to hesitate
19 to act upon it in matters of importance. It is a doubt that is honestly
20 entertained and reasonable in light of the evidence after a fair
21 comparison and careful examination of the entirety of the evidence
22 presented to you. Proof beyond a reasonable doubt which always rests
23 with the Prosecution is a proof that precludes every reasonable
24 hypothesis except guilt and is inconsistent with any other rational
1 That burden of proof that attaches itself to the concept of
2 reason doubt which belongs to the Prosecution throughout the trial and
3 never shifts to the accused. And that's important because on occasion,
4 as Artful Dodger picked the pocket of those on the street, some of the
5 argument that we've heard thus far from the Prosecution begins to creep
6 into a suggestion that we are required to prove that we are not guilty.
7 Concomitant with the notion of reasonable doubt is another matter
8 which is important, and that's what we call even-handedness. It is a
9 principle that exists in every jurisdiction, and that is that justice
10 must not only be done but seen to be done. And that's of particular
11 importance in this case. It's particularly important in the context of
12 where we stand and has been -- has been mentioned earlier. We share the
13 view that this Chamber has bent over backwards and has accommodated each
14 and every request made by the Prosecution to ensure that they receive a
15 fair trial.
16 Now, depending on what jurisdiction you come from, there are
17 arguments about whether or not that's something that the Prosecution is
18 entitled to or not, but that's a matter for an academic discussion as
19 opposed to a discussion here today. But with regard to the issue of
20 ensuring that seeing that justice is done, that's one of the issues that
21 is significant in this case, and I think it poses one of the biggest
22 difficulties here. And I'm discussing the issue now in the context of
23 reasonable doubt and in the context of the burden of proof, a category
24 which I would re-term reliability; that is, the reliability of the
25 material upon which you are to pass judgement in order to come to
1 conclusions about guilt according to the necessary standards of proof.
2 Now, if the standard of proof is going to mean anything in this
3 case, namely, as I've already suggested, that beyond a reasonable doubt,
4 it has to be borne in mind that the verdict to be returned is predicated
5 on how reliable is the material that you've been provided with, because a
6 verdict which is -- if it's to be one of guilt, has to be on a sure
7 foundation, because if it's anything less than a sure foundation, in fact
8 the fundamental aspect of a criminal trial is not achieved.
9 And in the category of reliability in this case, there is a
10 duplicity in the way the case itself has been approached, and in a way in
11 which the materials have been garnered and culled to put before you.
12 You're the fact-finders now. How high is our tolerance for the
13 likelihood of a wrongful conviction. A conviction is unsafe as if it's
14 established the fact finder was mislead on a relevant issue. I want to
15 take a moment here, because I'll introduce Witness, as he's been called,
16 X for a moment. I'll return to him later, but it's been said that the
17 truth to an unscrupulous witness may only be that which is consistent
18 with the Prosecution's theory of the case.
19 Let there be no doubt that with regard to Witness X, it is our
20 submission that he is either a liar or mentally disturbed, and his
21 evidence is not reliable.
22 The question has been asked by Your Honour which is when did they
23 arrive in Jabllanice, referring to the allegations contained in Count 1.
24 Let me pose a question to Your Honour: I suggest to you the question is:
25 Were they ever at Jabllanice? I will return to that, and I will spend
1 some time with that.
2 But the importance for the moment is a concept here, and I'm
3 going to now read from the first trial judgement, and I assure that you
4 will adopt the exact same general cautions. This is paragraph 14:
5 "On several occasions, only one witness gave evidence of an
6 incident with which the accused were charged. The Appeals Chamber has
7 held the testimony of a single witness on a material fact does not as a
8 matter of law require corroboration."
9 JUDGE MOLOTO: I'm sorry, Mr. Guy-Smith. Paragraph 14 of what?
10 MR. GUY-SMITH: Of the trial judgement in the original trial:
11 "On these occasions, the Trial Chamber exercise particular
12 caution considering all circumstances relevant to the testimony of the
13 witness, including any possible underlying motives for the witness's
14 testimony and other factors mentioned."
15 It was another caution that was given, and it's at paragraph 121:
16 "The Trial Chamber has heard much evidence about the tense
17 situation in Kosovo from long before the indictment period, with the
18 Serbian authorities and the Serbian minority in Kosovo, on the one hand,
19 and Kosovar Albanians, on the other, as adversaries. This situation
20 calls for caution when determining the authorship of violence against
21 victims of a certain ethnicity or affiliation. Lacking evidence to the
22 contrary, the Trial Chamber allows for the possibility that animosity
23 among the factions may have caused individuals belonging to one faction
24 to act violently against individuals belonging to the other out of
25 personal anger rather than an in a structured --"
1 JUDGE MOLOTO: Slow down.
2 MR. GUY-SMITH: Thank you, Your Honour.
3 " -- or organised manner."
4 The predicate, of course, for the Prosecution's position is that
5 there was a purpose, there was a structure in an organised manner which
6 these crimes occurred.
7 I'm going to take a moment now and go back to the assertions that
8 have been made by the Prosecution in their brief. Paragraph 18,
9 footnote 58:
10 "Tetaj heard that members of Balaj's Black Eagles who wanted to
11 leave the unit or who were expelled from the unit were executed to
12 prevent them from discussing the criminal activities in which the unit
13 had engaged."
14 Tetaj did hear this, but his testimony again is a bit more
15 expansive, because he said that the person who told him this, a gentleman
16 by the name of Astrit Berisha, tried to justify his departure from the
17 war zone, the fact that he had left the area, and it caused him concern
18 in terms of believing whether or not the assertion was made, was a true
20 Now, one of the major themes in the brief and also in the
21 argument of yesterday by Mr. Rogers concerned the issue of the fearsome
22 reputation of Idriz Balaj and the Black Eagles. It's again paragraph 18.
23 Tetaj testified that Balaj's -- that Balaj and his Black Eagles were
24 known for their brutality.
25 This will take a bit more time, but this is the entirety of that
1 discussion, starting at page 3676, P75:
2 "A. Look," this is an answer, "I must explain something else.
3 Before Togeri there was another person, Uku -- Uka, he was before Togeri,
4 and he left. Togeri came a bit later, and when you ask me about who was
5 in -- interrogated me there was another person by the name of Uka, and
6 there are many things which we -- was involved in and they are now
7 attributed to Togeri."
8 Now, we know who Uka is. That's Pjeter Shala, the man in black
9 with the sword.
10 "Q. Were Toger and his men known for their brutality?
11 "A. He was more dynamic. Togeri was described as such at the
12 time. Everything that was happening, the worst things that were
13 happening there, they were attributed to Togeri, although he may not have
14 been at the site. So there is nothing specific which I've seen with my
15 own eyes. So I'm asking both Your Honours and the Prosecution to ask me
16 about things which I have seen with my own eyes.
17 "JUDGE ORIE: Could you tell us -- you said Togeri was described
18 as such. Could you tell us by whom?
19 "THE WITNESS: [Interpretation] In all villages, rumours were
20 spread that it was Togeri who was the source of this and that. But I
21 cannot confirm anything because I haven't seen anything like that. It
22 was being commented on like that, but as to the reality I don't know.
23 It's true that he was more dynamic, and he was more serious in his tone,
24 and that's probably why people reached that conclusion. There was a lot
25 of rumours going around that he did this and he did that, but I have not
1 seen anything and do not know exactly anything of the sort, so I cannot
2 confirm it.
3 "JUDGE ORIE: You said he was more dynamic. Could you tell us
4 exactly what you mean by that?
5 "THE WITNESS: [Interpretation] He was more enthusiastic. He was
6 cool, but he was, by nature and his looks, like that. The image that
7 people were talking about, it was something which they had created in
8 their heads. I don't know how."
9 I'd like to ask you about one last matter and that was the last
10 thing I talked to you about a moment ago, that being the issue of
11 Astrit Berisha, which is:
12 "... yesterday," this is once again Judge Orie, "you confirmed in
13 speaking to Mr. Re that you spoke with the young man in Tirana by the
14 name of Astrit Berisha.
15 "THE WITNESS: [Interpretation] Yes ... yesterday I mentioned.
16 "JUDGE ORIE: You explained to us that Astrit Berisha was
17 attempting to justify why he was not in Kosovo fighting, if I understood
18 your testimony correctly.
19 "THE WITNESS: [Interpretation] Yes, that's true.
20 "JUDGE ORIE: You confirmed that Astrit Berisha told you that
21 Toger killed every member of his unit that wanted to leave. That's what
22 Astrit Berisha told you.
23 "THE WITNESS [Interpretation] As far as the withdrawal of FARK
24 from Kosova is concerned, when this happened, the people's hopes
25 diminished. Therefore, Toger's units and the other units which remained
1 in Dukagjin Plain were weakened, much weakened. They also had a lower
2 morale. So the people who withdrew, they can confirm that he tried to
3 justify why he withdrew, and I didn't think what he said was true,
4 because if somebody comes to help me, if somebody comes to support me, I
5 will try to do anything to ensure that everybody becomes Black Eagle. So
6 he could not kill anybody. This is illogical. So I could say that he
7 knew that I was an officer, I had participated. So he talked to me
8 simply because he was weak.
9 Question by the Judge again:
10 "When you were talking to the investigator of the Prosecutor
11 about what Astrit Berisha told you, did you explain to them at that time
12 he was trying to justify the reasons he fled the conflict?
13 "THE WITNESS: [Interpretation] I don't remember. Also, they
14 didn't insist on asking me this. They asked me simply what I heard and
15 with whom I had contacts. So then one question after another, I came to
16 that, what I said."
17 And that's page 75 at page 3813.
18 Now, yesterday you were told not to believe Ylber Haskaj because
19 Ylber Haskaj was a friend of Idriz Balaj's. Ylber Haskaj is loyal to
20 Idriz Balaj and telephoned him when he was in The Hague, but I'd like for
21 the Prosecution to answer this question or for you to consider it, what
22 is not to be believed from Ylber Haskaj?
23 P40, Ylber Haskaj's statement introduced by the Prosecution.
24 Paragraph 8:
25 "In the summer of 1998 while I severed with the Black Eagles
1 unit Shemsedin Cekaj arrived in KLA, in my village Irzniq. I'm not sure
2 of the exact day -- date or his position."
4 "I came to join the Black Eagles because I heard a special elite
5 group was being formed. I was very interested in joining this unit.
7 "I joined the Black Eagles on the first day that it was formed.
8 As far as I can remember, the Black Eagles were formed on 14 May 1998. A
9 gathering was organised in Irzniq where people were invited to join the
10 special unit. A lot of people responded to the invitation.
11 Approximately 500 people attended this first meeting. It was held in a
12 field close to my house in the centre of Irzniq. Because it was dark, I
13 could not see or recognise the person who led this meeting so I'm not
14 sure who it was. Of the group of 500 people who turned up at the initial
15 meeting, about 120 actually joined the Black Eagles. I remained a member
16 of the Black Eagles from the date of its inception, that being May 14th,
17 until roughly the end of July. The number of Black Eagles members
18 declined after the first few days, and from then on there were about 35
19 members. There was no deputy commander or unit commander, as far as I
20 know. Balaj was the only commander. He was the commander of the
21 Black Eagles from the outset."
22 Is this what you're not supposed to believe? Is this what you're
23 supposed to discount? Or is that what you're supposed to discount,
24 paragraph 12:
25 "The purpose of the formation of the unit was to have a rapid
1 reaction force that would be as highly trained as possible and be ready
2 for any occasion, be it carry out combat activities or help the civilian
3 population. Although we were based in Glodjan, the unit was intended to
4 operate all over the Dukagjin Operational Zone. In practice, the unit
5 operated mostly in and around the Decan municipality area."
6 Perhaps it's 14 that we're not supposed to believe:
7 "As I noted before, the training of the Black Eagles was very
8 intensive, so a lot of people gave up."
9 "I was in good physical condition as I was doing a lot of sports
10 in my youth and I was very skilled in karate.
11 Maybe it's 15 we're not supposed to believe:
12 "Our assignments were given to us orally by Idriz Balaj. Also,
13 whenever a single gun is fired in the Decan municipality, you could hear
14 it. Therefore, if we heard that Serbian forces attacked the village, we
15 would go there to try to defend it."
16 Is it 19 that we're not to believe?
17 "We had a different uniform than the rest of the KLA. It was a
18 black uniform. I was supplied with a special uniform and a weapon at the
19 Black Eagles headquarter a few days after joining the unit. It was a
20 rifle with telescopic sights like a sniper rifle. I was trained in the
21 house of that weapon. At times I was also issued with an automatic
22 weapon or .22. When I left the Black Eagles in the end of July I was
23 very demoralised. Our unit had for some time been assigned to the
24 villages of Voksh," which, if you recall, is zone 5 on the other side of
25 the road of the map that you saw earlier today, "Slup, and Drenoc." It
1 goes on. He goes on and discusses the death of one of his comrades.
2 He was wounded. He says in paragraph 23:
3 "After my wound had healed and the Black Eagles had returned from
4 the battle-field in the Voksh area, I told commander Balaj that I wanted
5 to leave the unit. I told him I did not feel well since the loss of my
6 cousin and other comrades. I had been very close with my cousin,
7 halting, and I felt his loss deeply. Balaj accepted my decision."
8 Didn't kill Ylber Haskaj, did he? A young man wounded and
9 demoralised because of the loss of a family member goes to his commander
10 in difficult circumstances. A special unit, a small unit, a highly
11 trained unit, a necessary unit, and he asks permission to leave, and he's
12 granted such permission. Is that what we're not supposed to believe?
13 Or perhaps what we're not supposed to believe most importantly in
14 terms of the assertion made that Balaj executed all of the Black Eagle
15 members is paragraph 36. Investigator Ole Lehtinen has read out to me a
16 list of former Black Eagles and I'm asked to comment on the ones I know.
17 I won't read you each and every name, but it starts with the letter A and
18 ends with the letter T.
19 The assertion made in the brief, the assertion made concerning
20 Mr. Balaj's brutality and fearsome reputation at best is suspect from
21 that evidence, evidence presented to you by the Prosecution, Prosecution
23 Now, during examination of Ylber Haskaj, he was asked the
24 following questions and he gave the following answers. This is page
1 "Q. Mr. Haskaj, you spent a relatively short period of time in
2 training before you went to battle in Voksh; correct?
3 "A. Yes.
4 "Q. It was, in fact, a matter of days before the pressure of the
5 attacks were such that you and members of the Black Eagles, including
6 Mr. Balaj, went to Voksh to perform your duties as a special intervention
7 unit; correct?
8 "A. Yes.
9 "Q. When you got to Voksh, you remained in that area - by that I
10 mean Voksh, Drenoc, and Slup, those particular villages - because that is
11 where the fights were occurring and where you were needed in order to
12 battle; correct?
13 "A. Yes.
14 "Q. You didn't come back to the area of Irzniq ..."
15 And I, once again, recalling P78 which you saw earlier today,
16 Irzniq is close to Glodjan, which is subzone 1. Now, Drenica is over
18 "Q. ... until sometime in July after you were wounded; true?
19 "A. I only went there once.
20 "Q. During the period of time that you were fighting in Voksh,
21 Drenoc, and Slup in June throughout July, except for the one time that
22 you said that you returned on one occasion, your commander, Idriz Balaj,
23 was there also fighting with you, wasn't he?
24 "A. Yes.
25 "Q. After you stopped fight with the Black Eagles," this is
1 10338 "you then returned to working with the village guard ... back in
3 "A. Yes.
4 "Q. And were you under the command of Shemsedin Cekaj?
5 "A. Yes. I know that he had returned to the village a little
7 "Q. The Black Eagles were still -- after your return, they were
8 still out in the field, to your knowledge, were they not, engaged in
9 fighting in various battles that were occurring throughout the region;
11 "A. Yes.
12 "Q. And, as a matter of fact, as a unit the Black Eagles were
13 moving in and out of the area after your return in July whatever --
14 wherever their abilities and services were needed depending on the
15 battles that were occurring from July until certainly the September
16 offensive ...
17 "A. Yes.
18 "Q. Now, you indicated in your statement there was no deputy
19 commander or sub-commander," the thing that we've read earlier -- that I
20 read earlier to you, and "...Toger, was the one who ran the unit ..."
21 "A. Yes.
22 "Q. He was -- and I'm using kind of a term of art here. He was
23 the first in battle and the last out of battle. He was a man who stayed
24 with his soldiers and did not shirk from the responsibility of fight, did
1 "A. That's true."
2 What of this are you not to believe, predicated upon, if nothing
3 else, the film you saw yesterday of the battles? But to be sure, he is
4 not the only one who has recognised what the Black Eagles and Toger,
5 Idriz Balaj, were engaged in.
6 This is from the testimony of Rrustem Tetaj, starting at
7 page 3807:
8 "Q. ... you've told us that Togeri was the head of the
9 Black Eagles which was a group of young men somewhere between 25 and
10 30 ...
11 "A. Yes.
12 "Q. And you've told us that as you know, he was involved in
13 actions - and by 'he' I mean his unit - was involved in actions, that's
14 battles with the Serbs in a number of different villages; right?
15 "A. Yes, I agree with the numbers you mentioned and they were
16 volunteers who were very daring young people, and they were volunteers
17 who joined Togeri completing this task.
18 "Q. ... had on black clothes?
19 "A. They were wearing the black clothing, better to say, so that
20 they could distinguish themselves from the rest. They had an insignia of
21 KLA on those clothes.
22 Q. ... if you could tell us ... whether I'm corrected when
23 mentioning the following areas that these are places where the
24 Black Eagles were involved in battles during the summer of 1998. Voksh?
25 "A. Yes.
1 "Q. Baballoq?
2 "A. Yes.
3 "Q. Prilep?
4 "A. Yes.
5 "Q. Gramaqel?
6 "A. Yes.
7 "Q. Shaptej?
8 I'm not sure about Shaptej:
9 "Q. Rastacive?
10 "A. ... yes.
11 "Q. Junik?
12 "A. Yes.
13 "Q. Carrabreg?
14 "A. Carrabreg, yes.
16 "A. Sllup, Lloqan, Voksh, they are" all "close to each other."
17 "Q. Glodjan?
18 "A. ... they couldn't.
19 "There were other forces there."
20 They didn't need them to be reinforced in Glodjan.
21 "Q. Loxha?
22 "A. Loxhe, you are talking about Loxhe, yes."
23 "Q. You earlier mentioned that the Black Eagles was comprised of
24 a group of daring young men ...
25 "A. ... it was a very small unit compared to the region and a
1 very, very small group was engaged in the actions, not the whole group.
2 The daring people, the voluntary people who took part here simply did not
3 want to carry black uniforms and carry attack on one another.
4 "Q. And the Black Eagles' responsibility was to come in, and
5 among other things, reinforce the villages when Serbs were attacking;
7 "A. Yes. That was its responsibility. In any case of Serbian
8 action it's presence was a cause for pride for the people to see that the
9 unit was there. So they -- the group gave its support. So if there was
10 attack -- an attack against a village like Carrabreg, Laushe [sic],
11 Prilep, people also -- people always wanted to have the assistance,
12 support of the Black Eagles. It was moral support. The establishment of
13 this unit was an act of moral support.
14 "Q. Apart from being moral support, it was actually, in fact,
15 true military support because these young men, Toger's unit, had weapons
16 and training that allowed them to effectively fight against the Serb
18 "A. I don't deny this; it's true."
19 Now, one of the things I talked to you briefly about earlier was
20 the fact that Idriz was not from the area, so as the head of this special
21 unit, a unit that was engaged in heavy fighting, a stranger, there were
22 certain difficulties, potentially.
23 "Q. Idriz Balaj was not from the area, was he?
24 "A. I would like to declare openly, I had contacts with Idriz
25 but I never knew him as Idriz Balaj. He can confirm it himself. I knew
1 him as Toger and I knew that he did not come from that region. People
2 did not know him in that region and he also did not know the people of
3 the surrounding villages ...
4 "Q. Very well ... the man that you knew as Toger not coming from
5 the area, this constituted something of a double-edged sword for him,
6 didn't it? And by that I mean he was doing good work, as you've just
7 told us; his unit was supporting and helping people, as you've told us,
8 but he was a stranger in the area in which you come from where there are
9 few strangers?
10 "A. That's true. That's true. He came there. He came to
11 defend the villages and the population of that region. And I'd like to
12 thank him for doing that, and possibly also the name of -- he gave moral
13 support to the people, and in fact it was the hope that kept Togeri's
14 unit and the people keeping on. People felt more secure when they were
15 under attack from the Serb forces.
16 "Q. Part of the reality at the same time, however, was if a there
17 was an effective defence there would have been a greater response by the
18 Serbian army, wouldn't there? It would come in with more guns, soldiers,
19 more tanks?
20 "A. Yes, yes. Surely ... our forces grew in number, and as they
21 grew in number and technique, also the Serbian forces grew in number.
22 "So the reality on the ground was that when Toger and the
23 Black Eagles were present there was fighting, there was death and there
24 was defence.
25 His answer:
1 "I would have put it differently. The Serbian forces continued
2 less if the Black Eagles units were engaged. The action was shorter.
3 Whether there is death or other casualties, nobody could really guess
4 what could have happened.
5 "In the action he took part, not only Toger, but also other
6 soldiers. Nobody thought that he would come back alive. That's how I
7 would ...put it."
8 That paints somewhat of a different picture. That's evidence it
9 was artfully left out of the Prosecution's presentation, because it
10 doesn't fit with their theory.
11 In paragraph 49, footnote 171, the Prosecution asserts that the
12 victims of the KLA included Serbs as well as ethnic Montenegrins who like
13 the Serbs were considered KLA enemies. The first exhibit cited to refers
14 to Siptar extremists, not the KLA. That's P149. The second exhibit
15 referred to, P442, the diary of a particular individual at page 6 does
16 not say anything about the KLA, discusses how people were fleeing their
17 villages, including some Albanians.
18 The next exhibit, P135, does not support the notion of the KLA
19 enemies as asserted.
20 And the last exhibit is Zoran Stijovic's statement, P121, which
21 includes in it paragraph 22, which is in Annex 24, which is not evidence
22 in this trial.
23 Now, if you believe according to Mr. Rogers that Witness X is
24 telling the truth, according to Mr. Rogers, then you would of necessity
25 convict Idriz Balaj of Count 1 and Count 6.
1 Before we get to the issue of whether he is telling the truth,
2 let us ask ourselves whether or not he has presented himself as a
3 reliable witness. Is he the type of witness who you would rely upon in
4 conducting your most important affairs. And for the moment, let's forget
5 about the criminal charges against Mr. Balaj and view it in an entirely
6 different fashion.
7 There was testimony that he met with the then president of Kosovo
8 every Friday. As a matter of fact, more often than Friday.
9 He travelled from his home some 80 kilometres through a number of
10 Serbian check-points to meet with President Rugova. Do you believe that?
11 Is that credible? If the issue that you had to decide in this case
12 concerned that testimony, would you believe him? I think not.
13 He testified that the reason that he was having - and I'll put a
14 euphemistic term - difficulties with the KLA was because he was going to
15 build a stronger army. Curious proposition. Believe it? Can we rely on
17 Mr. Rogers takes the position that we should excuse his failure
18 to be precise, his confused, convoluted, or difficult descriptions about
19 when things happened and when things happened because of -- where things
20 happened and when things happened because of the passage of time. So
21 much time had passed. Okay? Fourteen years, if I'm not mistaken.
22 This document is under seal concerning information given in 2002,
23 so I assume that we should go into private session.
24 JUDGE MOLOTO: May the Chamber please move into private session.
25 MR. GUY-SMITH: This is D2 --
1 JUDGE MOLOTO: Just a second.
2 [Private session]
11 Page 2944 redacted. Private session.
5 [Open session]
6 THE REGISTRAR: Your Honours, we're in open session.
7 JUDGE MOLOTO: Thank you so much, Mr. Registrar.
8 Yes, Mr. Guy-Smith.
9 MR. GUY-SMITH: The critical point being made here is that
10 in 2002 there were discussions about the subject matter. That's what the
11 critical point is.
12 JUDGE MOLOTO: Let me understand. You're not saying what you
13 just read is true. What you're saying, it was recorded in 2002. It is
14 different from what is being put in evidence.
15 MR. GUY-SMITH: Thank you very much. And you -- that's exactly
16 what I'm saying. And you as the fact-finders, the Judges of whether or
17 not this individual's testimony is reliable is something you can
18 consider, and it certainly militates against the notion that this vast
19 passage of time excuses the suggestion that he was inaccurate.
20 But more -- not even more importantly, and in addition to, you
21 recall Mr. Rogers accepted, conceded, the point that he had said in 2006,
22 with regard to the issue of these three men, that he had heard, heard,
23 they were kidnapped. Not saw, not experienced, not involved with, but
24 heard. Quite distinct from his testimony some six years later. And
25 hearing and seeing, as we all know, are real different, because when he
1 claimed in his testimony to have seen, he involved himself in the
2 incident. He did this same kind of thing on a number of different
3 occasions. This is why I suggest to you that he is either a liar or
4 mentally unstable, because there is no one to confirm his story
5 concerning this abduction as it is called, this kidnap as it is called.
6 The evidence on this point is that on the 19th of May, these
7 three individuals were -- were seen leaving their village. They were
8 seen at the village where this abduction as it is claimed took place, and
9 they have not been seen ever again but for Witness X's assertion. There
10 is no one else, no one, who claims that the kidnap, as it is called, or,
11 and most importantly, the incident that occurred in Jabllanice in which
12 it is claimed that Idriz Balaj cut off somebody's ear ever happened.
13 You have to believe Witness 3. You have to find Witness 3 a
14 reliable witness in order for that to hold any water.
15 And what's curious is considering -- considering the kinds of --
16 of rumours or considering -- I'm sorry. I said Witness 3 and I meant
17 Witness X. I apologise.
18 Considering the types of rumours and considering the -- the
19 profound incident itself, doesn't it strike you curious, strange, that no
20 one but Mr. X claims any information about this? No one. Excuse me.
21 I'm sorry. We did hear from another witness. We did. I'm sorry. I
22 apologise. I don't wish to misspeak. We know what the quality of that
23 witness's evidence is, and we know what Mr. Rogers' position about that
24 evidence is, and that witness -- he's asked you to discount in its
25 entirety anything that that man said.
1 Now, it's easy to accuse somebody, and if you make it a
2 particularly heinous crime and you add on to it a bad reputation, well,
3 not real hard to make a determination from those two speculative
4 assertions that the individual accused is guilty. After all, he's a bad
5 guy. That's what's being said to you. We avoid in it's entirety, doing
6 to it way, the inconsistencies internal of his testimony.
7 JUDGE MOLOTO: Before we -- I forget, it looked like --
8 MR. GUY-SMITH: Sorry. Hold on. I'm with you.
9 JUDGE MOLOTO: Before I forget, it looks like you're going to the
10 next point. Can I just get -- ask something from you?
11 MR. GUY-SMITH: Sure.
12 JUDGE MOLOTO: Page 86, lines -- from line 18, you say but
13 more -- not even more importantly, in addition to, you recall Mr. Rogers
14 accepted, considered the point that he had said in 2006, with regard to
15 the issue of these three men, that he had heard. Are you able to give us
16 a reference, please?
17 MR. GUY-SMITH: A reference of --
18 JUDGE MOLOTO: Of where this is. For where Mr. Rogers accepted
19 and conceded this.
20 MR. GUY-SMITH: Yes.
21 JUDGE MOLOTO: Or where -- or where he's supposed to have said in
22 2006 that he had heard whatever.
23 MR. GUY-SMITH: Well, there are two -- two different issues. One
24 is when did the witness testified to it, and I'll get that for you. I'll
25 give you a transcript reference for that. And the second is Mr. Rogers
1 conceded the point yesterday, which if you want, I'll also get you a
2 transcript reference.
3 JUDGE MOLOTO: Okay. I see he nods his head that he did concede
4 it yesterday. Or am I wrong, Mr. Rogers?
5 MR. ROGERS: No. I did say yesterday in the course of my
6 opening -- my closing, that the witness had said he had heard they had
7 been taken from the mill but that he had seen them in the place. And he
8 said that during the course of his testimony.
9 JUDGE MOLOTO: Thank you.
10 MR. GUY-SMITH: Do you want me to get you a specific reference at
11 this point or ...
12 JUDGE MOLOTO: If you may, please. If you have them. I'll
13 appreciate them.
14 MR. GUY-SMITH: I'll get it for you.
15 JUDGE MOLOTO: Thank you, Mr. Guy-Smith. You may proceed. I
16 don't want to delay you.
17 MR. GUY-SMITH: Thank you. It's page 2597 of the proceedings.
18 JUDGE MOLOTO: Thank you so much.
19 MR. GUY-SMITH: Now -- well, 2598 is even more specific, because
20 that's when a question is asked by Judge Moloto:
21 "Did you say that sentence?"
22 And his answer is:
23 "Yes, sir, yes."
24 So ...
25 JUDGE MOLOTO: Thank you.
1 MR. GUY-SMITH: Sure.
2 In -- in -- we stop in a few minutes, do we not?
3 JUDGE MOLOTO: [Microphone not activated]
4 MR. GUY-SMITH: Okay. Yesterday, Mr. Rogers, I think,
5 misapprehended at least an argument that -- that's been made on behalf of
6 Mr. Balaj, which is that -- a suggestion of collusion between Witness 3
7 and X. So there's no doubt, as far as we're concerned, there was no
8 collusion between those two people. What happened was X stole the life
9 experiences of Witness 3 and said they were his own to give credence to
10 his falsities in the same fashion that X shifted from hearing to seeing.
11 And I will pick up tomorrow with that part of the discussion.
12 JUDGE MOLOTO: Thank you so much, Mr. Guy-Smith.
13 That brings us to the end of the session for today. We obviously
14 haven't finished. We had been set to finish today. I suspect we can
15 only postpone to tomorrow morning, 9.00. Same courtroom.
16 MR. GUY-SMITH: We start tomorrow morning?
17 JUDGE MOLOTO: Morning, 9.00, same courtroom. We'll ask that
18 CMSS makes the necessary arrangements.
19 Court adjourned.
20 --- Whereupon the hearing adjourned at 1.44 p.m.,
21 to be reconvened on Wednesday, the 27th day
22 of June, 2012, at 9.00 a.m.