1 Monday, 15 November 2004
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.18 p.m.
5 JUDGE PARKER: We are now at the point of commencing the trial of
6 the three accused, each of whom have previously entered pleas of not
7 guilty to all counts in the indictment. The proceedings this morning have
8 ensured that the present interpretation arrangements are adequate to
9 ensure that each of the accused is able to follow the proceedings in their
10 own language. So on that basis, we now turn to Mr. Cayley and invite him
11 to make his opening remarks.
12 MR. CAYLEY: May it please Your Honours. A few prefatory
13 comments, Your Honours. I will be displaying during my opening a number
14 of exhibits in the Sanction software system, so you'll see the document on
15 the screen in front of you. All of the material has been disclosed to the
16 Defence, although, of course, it will be admitted through later witnesses.
17 A number of the documents are in fact public documents which will probably
18 not require formal admission through a witness such as Security Council
19 resolutions, public statements by the Prosecutor. So with that, Your
20 Honours, I will begin.
21 [Prosecution Opening Statement]
22 MR. CAYLEY: The essential facts of this case are as
23 straightforward as they are compelling. The Prosecutor will show that
24 between May and July of 1998, Serb and Albanian men were abducted and
25 unlawfully detained in a makeshift prison camp in the village of Lapusnik
1 in Kosovo. Here, they were brutally beaten, tortured, and mistreated, and
2 in over 20 instances, either beaten to death or killed by fatal gunshot
4 The three accused before you, Fatmir Limaj, Isak Musliu, and
5 Haradin Bala, bear responsibility for these events.
6 The origins of this case and the human suffering which both
7 preceded and followed it are now part of European history. The hopes,
8 frustrations, and irreconcilable differences which led to this war, while
9 relevant for your consideration, are not on trial here. In bringing this
10 case, we do not seek to underwrite or condemn the ethics or wisdom of any
11 party who sought recourse to war as a means of settling bitter and
12 seemingly intractable controversies. The causes of war, the aspirations
13 of an oppressed people are not the subject of a complaint. The
14 Prosecutor's position is simply this: No cause, however just, legitimises
15 indiscriminate murder. The Prosecutor strived for the best part of ten
16 years towards one straightforward objective: To condemn dispassionately,
17 impartially, very serious crimes committed by any party which fall within
18 the jurisdiction of this Tribunal.
19 I hope you can see a map in front of you of where Kosovo lies in
20 the Balkans. The beige shaded area is Kosovo. The crimes which are
21 referred to in this indictment took place in Kosovo. You can see that
22 Kosovo is located in the southern part of what was the former Yugoslavia.
23 It shares borders with Montenegro to the west, Albania to the south-west,
24 the former Yugoslav Republic of Macedonia to the south, and you can see
25 Serbia to the north.
1 The village of Lapusnik, which is the principal scene of the
2 crimes in this indictment, you can see marked on this map. It is in the
3 municipality of Glogovac. So you see it marked there with a red disk.
4 Do Your Honours see the maps in front -- you do. Thank you.
5 The village of Lapusnik is strategically located on the
6 Pristina-Peja-Pec road. You can see there Pristina on the right. The
7 cursor arrow is marking it. That is the major city, major capital of
8 Pristina -- of Kosovo, rather, and then you can see to the left, Peja, or
9 Pec as it is known in the Serbian language, which is another principal
10 town in Kosovo. So Lapusnik is strategically located on a road connecting
11 these two major places.
12 By February or March of 1998, Kosovo had spiralled into armed
13 conflict with the Serb army and police on one side and the KLA, or Kosovo
14 Liberation Army, on the other. By May of 1998, Fatmir Limaj had returned
15 from Switzerland and was based at the KLA headquarters in Klecka. He was
16 commander of the KLA forces in an area where the crimes which are
17 specified in this indictment took place.
18 If we could now advance to the next exhibit. There you can see
19 Klecka marked on the map. The cursor arrow is showing it. And you see
20 Lapusnik, the principal scene of the crimes in the case, with the red
22 Fatmir Limaj was the commander of KLA forces in an area where the
23 crimes which are specified in the indictment took place. A number of KLA
24 military concentrations or points, as they were called, were dispersed
25 across Fatmir Limaj's area of control, including one in the village of
2 Again, the cursor pointing to the village of Lapusnik.
3 Isak Musliu was commander of KLA troops in Lapusnik. The
4 commanders or leaders of all of these points, including Isak Musliu,
5 reported to Fatmir Limaj, and he, in turn, was regularly present at these
6 points or military concentrations supervising and commanding his troops in
7 the region. As part of an effort to strengthen his grip in his area of
8 command, Fatmir Limaj and others, including Isak Musliu and Haradin Bala,
9 participated in a campaign to target Serbs and Albanians accused of
10 collaboration with the Serbs, with abduction, unlawful imprisonment,
11 torture, and murder. Serbs, it seems, were arrested simply for being
12 Serbs; Albanians, because of alleged collaboration. Often, it seems that
13 collaboration was based on merely having had social contact with Serbs.
14 Sometimes political loyalties at odds with the KLA political beliefs were
15 the motivation.
16 The evidence will show, Your Honours, that many more Albanians
17 than Serbs were captured and taken to Lapusnik. Serbs and Albanians were
18 abducted by members of the KLA from their homes, often in the middle of
19 the night, often from public transport or their motor cars. They were
20 taken from villages in Limaj's areas of command and brought, all of them,
21 to the camp at Lapusnik. If Limaj's headquarters at Klecka did not order
22 the kidnapping or know of it beforehand, they were informed immediately
23 after it happened. Although many prisoners were interrogated, usually
24 while being beaten, it was no effort to determine if there was any legal
25 basis to detain them.
1 Isak Musliu, as part of his command duties, was in charge of the
2 soldiers who guarded the camp at Lapusnik. Haradin Bala was a guard in
3 the camp. Both knew of and participated in atrocious criminal acts in the
4 camp. Prisoners were kept in inhumane conditions. They were beaten and
5 tortured. A number of prisoners were beaten to death in the camp or
6 executed. Isak Musliu and Haradin Bala were based in Lapusnik and were
7 regularly at the camp. Fatmir Limaj visited Lapusnik at least 20 times
8 between May and July of 1998. He knew what was taking place in the
9 makeshift camp and Isak Musliu acted to his order. The camp was in
10 operation from May until July 26th, 1998, when a Serb counter-offensive in
11 the region forced an evacuation of the remaining prisoners from the camp,
12 who were taken up into the hills above Lapusnik to a place called Berisa.
13 And you can see Berisa marked on the map with an orange triangle with a
14 black circle within it.
15 Here, on Fatmir Limaj's orders, approximately half of the
16 remaining prisoners were released and the other half were executed by
17 Haradin Bala.
18 Those, Your Honours, are the essential facts of this case.
19 Kosovo is currently supervised by a United Nations civilian
20 interim administration. UNMIK, as it is known, the UN mission in Kosovo,
21 was established by Security Council resolution in 1999, Resolution 1244,
22 after the end of the war. This administration works closely with Kosovo's
23 leaders and its people. The United Nations receives substantial support
24 for its work in Kosovo from the organisation for security and cooperation
25 in Europe, OSCE, and from the EU, from the European Union. KFOR, or
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13 French transcripts correspond
1 Kosovo Force is a NATO-led military force responsible for maintaining the
2 peace and security in the region. I mentioned this to you because these
3 acronyms I think you will hear throughout the trial. I'm quite certain
4 you knew this already but I wanted to make it clear.
5 Just a word on Albanian and Serbian or B/C/S as we call it at
6 ICTY. You've already noticed on the maps that there are often times two
7 names for the same place. In Kosovo, places obviously have names in the
8 Albanian language and names in the Serbian language. The history of the
9 region explains this. Obviously, Albanian witnesses will refer to
10 place-names by their Albanian names, and Serb witnesses by their Serb
11 names. Often times, the word is very similar or almost identical, but we
12 will all I think become accustomed over the course of the trial with the
13 fact that often times a single place may be referred to by two slightly
14 different names.
15 A word about the investigation of this case. A survivor, who you
16 will hear as a witness, first made complaint to local police in Kosovo and
17 then to the international police arm of UNMIK, the United Nations mission
18 in Kosovo. It was UNMIK, or the international police arm of UNMIK, who
19 commenced the first large-scale investigation of these crimes. The
20 Prosecutor of the ICTY exercised her jurisdiction in this case in 2002,
21 and the case was taken over at that time by the Office of the Prosecutor.
22 I mention this, as you will see from time to time in the case
23 witness statements and other material whose origin does not lie with this
24 office but in fact with UNMIK. I should emphasise that the OTP
25 re-investigated this case. By this I mean we spoke to all of the
1 witnesses, or almost all of the witnesses who UNMIK identified in their
2 investigation and then we obviously identified many more witnesses of our
4 The Defence have all the material from the UNMIK investigation,
5 which we required to disclose to them under the Rules of Procedure and
6 Evidence, be that Rule 66 or Rule 68.
7 The original UNMIK investigation targeted four individuals. We
8 did the same. The three accused before you and another individual by the
9 name of Agim Murtezi. Agim Murtezi was charged and arrested and claimed
10 from the very start that he had been misidentified. None of the three
11 other accused before you made such a claim. On transfer to The Hague,
12 Murtezi immediately submitted to a suspect interview in accordance with
13 the Rules with the Prosecutor. All of the other three accused exercised
14 their legal right to remain silent. After further investigation of
15 Murtezi's account by the Prosecutor, it was clear that he had not been in
16 Lapusnik during the relevant time. Period he was released and the charges
17 were dropped.
18 One last word on UNMIK and KFOR. Our own investigation and work
19 in Kosovo would not have been possible without the cooperation that we
20 receive from these two organisations. People are working very hard, both
21 internationals and senior members of both communities, to re-establish the
22 rule of law and ensure that Kosovo has a transparent and functioning legal
23 system. I publicly pay tribute and thank all of these individuals.
24 In front of you, Your Honours, you will see a photograph of some
25 housing and agricultural premises. Here you see a traditional Albanian
1 compound. And where you see the cursor at the moment is the place in
2 which the makeshift prison camp was established from May until July of
3 1998. Here you see a road where the cursor is now pointing, and above the
4 road, another compound opposite the prison camp which served as a KLA
5 headquarters. So it is in this area here, in these buildings surrounding
6 where the arrow is pointing now, where the makeshift prison camp was
8 Whilst not all the crimes contained in the indictment took place
9 in the camp, it is here that victims were taken after their abduction. It
10 is here where all of the victims in this case were unlawfully imprisoned.
11 It is here where the victims were beaten, tortured, and maltreated, and it
12 is either in this place or from here where the murder victims were taken
13 to be killed.
14 An opening statement must contain an outline of the evidence on
15 which the Prosecutor intends to rely and also an explanation of the nature
16 of the charges laid. The Prosecutor has already outlined the law and
17 evidence in some detail in written form in her pre-trial brief. The three
18 accused have all responded to that pre-trial brief in their own pre-trial
19 briefs in which they outline their challenges to the Prosecutor's case and
20 set out generally the nature of their defences to the allegations made
21 against them. Some preliminary comments on the pre-trial briefs of the
22 Defence, which respectfully, Your Honours, I would ask you to keep at the
23 forefront of your mind throughout this opening and indeed throughout this
25 The accused Limaj and Musliu acknowledge their presence in the
1 village of Lapusnik for either virtually all or a substantial period of
2 the indictment. Fatmir Limaj states that he was in Lapusnik on some 20
3 occasions between May and July of 1998. Isak Musliu states in his
4 pre-trial brief that he was based in Lapusnik from May to July of 1998,
5 although he took some trips away from Lapusnik at that time.
6 Whilst admitting their presence in the very place where all of
7 this suffering and killing took place, for those two accused, there was no
8 camp, no prisoners, no beatings, no torture, and no dead that burdened
9 their conscience. As is their right, the accused are putting the
10 Prosecutor to proof on all the criminality referred to in this indictment.
11 The Prosecutor will do exactly what is implicitly asked of her: Show to
12 this Court their guilt beyond a reasonable doubt.
13 Mr. Bala has taken a slightly different course in his defence than
14 his co-accused. He offers to the Court a partial alibi. He states now
15 that he was in Lapusnik for a few weeks in May of 1998, and then left for
16 duties elsewhere. So his position is that he knew nothing about the camp
17 either, although in the recently filed Rule 92 bis response by the
18 Defence, it now seems that his position too is that he denies the
19 existence of the prison camp also. So not only that he didn't know about
20 it but that he completely denies that the camp ever existed.
21 The principal strength of the Prosecutor's case, Your Honours, is
22 that the Prosecutor draws on evidence from multiple sources. We do not
23 just call the victims, the survivors, we also rely on forensic evidence,
24 which is unusual for a war crimes case because of the length of time
25 normally between commission and length of trial. Moreover, the evidence
1 of the survivors is corroborated by members of the international
2 community, who will confirm that during the relevant time period, it was
3 well known that both Serbs and Albanians were being abducted and murdered
4 by certain elements within the KLA. We will rely on evidence from members
5 of the KLA itself, individuals who were on the inside of the organisation,
6 who will confirm, either partly or fully, a number of the critical events
7 in this case.
8 If I could now make some comments, Your Honours, about the
9 indictment structure and the charges, quite briefly. All three accused
10 are charged with unlawful imprisonment in count 1 as a crime against
11 humanity and count 2 as a violation of the laws or customs of war. Fatmir
12 Limaj and Isak Musliu are charged under Article 7(1) and 7(3) of the
13 Statute with these crimes, Haradin Bala is charged under Article 7(1)
14 only. All three accused are charged with torture, inhumane acts and cruel
15 treatment. Torture is charged in counts 3 and 4 as a crime against
16 humanity and a violation of the laws and customs of war respectively;
17 inhumane acts are charged as a violation of the laws and customs of war in
18 count 5; and cruel treatment is charged in count 6, again as a violation
19 of the laws and customs of war. In respect of these counts, Fatmir Limaj
20 and Isak Musliu are charged under Article 7(1) and 7(3) of the Statute,
21 Haradin Bala is charged under Article 7(1) only.
22 All three accused are charged with murder. Murder is charged in
23 count 7 as a crime against humanity, and in count 8 as a violation of the
24 laws and customs of war. These counts capture the murder of Ajet Gashi,
25 the murder of Milovan Krstic, the murder of Miodrag Krstic, the murder of
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13 French transcripts correspond
1 Slobodan Mitrovic, the murder of Miroslav Suljnic, the murder of Zivorad
2 Krstic, the murder of Stamen Genov, the murder of Djordje Cuk, the murder
3 of Sinisa Blagojevic, the murder of Jefta Petkovic, the murder of Zvonko
4 Marinkovic, the murder of Agim Ademi and the murder of Vesel Ahmeti and
5 the murder of Fehmi Xhema.
6 Fatmir Limaj and Isak Musliu are charged with the unlawful killing
7 of these men under both Article 7(1) and 7(3) of the Statute. Haradin
8 Bala is charged under Article 7(1) only of the Statute, with the murder of
9 Jefta Petkovic, Zvonko Marinkovic, Agim Ademi, Vesel Ahmeti and Fehmi
11 Murder is charged in counts 9 and 10 as a crime against humanity
12 and violation of the laws and customs of war. These two counts capture
13 the murder of Emin Emini, the murder of Ibush Hamza, the murder of Hyzri
14 Harjizi, the murder of Shaban Hoti, the murder of Hasan Hoxha, the murder
15 of Safet Hysenaj, the murder of Bashkim Rashiti, the murder of Hetem
16 Rexhaj, the murder of Lutfi Xhemshiti, and the murder of Shyqyri Zymeri.
17 Fatmir Limaj is charged with all of these murders under both Article 7(1)
18 and 7(3) of the Statute. Haradin Bala is charged with these murders under
19 Article 7(1) only.
20 A brief word on the modes of liability on which we rely under
21 Article 7(1) of the Statute. You will see in the indictment in the
22 prefatory paragraphs for each series of counts - that's paragraphs 21, 25,
23 28, and 34 - that these express the modes of liability that we rely on for
24 that particular set of counts, where Fatmir Limaj and Isak Musliu are
25 charged under Article 7(1) of the Statute, the modes we rely on are
1 planning, instigating, ordering, committing, or otherwise aiding and
2 abetting. Where Haradin Bala is charged under Article 7(1) of the
3 Statute, we rely only on the modes of committing or otherwise aiding and
4 abetting. Where we state the mode of liability of committing, we seek to
5 plead, where appropriate, that not only did the accused personally
6 participate in the alleged crime, where the evidence so demonstrates, but
7 also that these crimes were part of a joint criminal enterprise in which
8 all three accused participated. We've expressly pleaded the nature of
9 that joint criminal enterprise in paragraphs 6 to 13 of the indictment.
10 You will recall that the Tadic appeals judgement identified three forms of
11 joint criminal enterprise, and I will deal with those three forms at a
12 later stage in my opening.
13 At this juncture, I would simply say this about the legal vehicle
14 of liability of joint criminal enterprise: In a joint criminal
15 enterprise, we do not seek to punish one man for another man's crimes. We
16 seek to punish each for his own crime of joining a common criminal plan in
17 which others also participated. The measure of the criminality of the
18 plan and therefore of the guilt of each participant is of course the sum
19 total of all the crimes committed by all in executing the plan. But the
20 basis of the offence is participation in the formulation and/or execution
21 of the plan. These are the rules which every civilised society has found
22 necessary in order to reach men who do not always get blood on their own
23 hands but who lay plans or involve themselves in a plan that result in the
24 shedding of blood.
25 What will become clear from the evidence is that the abduction,
1 imprisonment, maltreatment and murder of the victims in this case was a
2 criminal enterprise of some scale and longevity. Whilst it is true that
3 the three accused are not the only ones involved in these --
4 THE INTERPRETER: Could counsel please slow down for the
5 interpreters. Thank you.
6 MR. CAYLEY: I'm sorry. I'm running ahead of the translators.
7 What I will do is to turn up the French translation and listen to
8 it here and hopefully that should solve it.
9 So all three accused are charged under Article 7(1) with criminal
10 responsibility for their participation in a joint criminal enterprise.
11 Who are the three accused? Firstly, the first accused, Fatmir Limaj.
12 The first accused is 33 years old. He was born in Banja near
13 Malisevo, in Kosovo, and you can see Banja. The cursor is pointing to the
14 village of Banja now. You can also see still identified Lapusnik above
15 it. So Mr. Limaj was a local man from this area. He served as deputy
16 defence minister in the provisional government of Kosovo and was later a
17 member of the Pristina Municipal Assembly and was the PDK public relations
18 secretary. The PDK, or Kosovo Democratic Party, is a party which emerged
19 from the renamed PPDK, which was a political party that emerged out of the
20 KLA. Mr. Limaj was educated in Kosovo and studied law at the University
21 of Pristina. He was active from a young age in resisting Serb rule in
22 Kosovo. He joined the KLA prior to the war in 1998, after a crack-down by
23 Serb authorities against Kosovar Albanian organisations. He sought
24 refugee status in Switzerland in 1997. Here he stayed until about March
25 of 1998, when he returned to Kosovo and established a KLA headquarters in
1 Klecka, the place that I've already shown to you on the map. You can see
2 it again on this map - the white cursor is pointing to it - where he
3 controlled KLA forces south of the strategic Pristina-Pec road, which is
4 this road here.
5 By May of 1998, forces under Fatmir Limaj's control had secured
6 the village of Lapusnik, which then served as a front line base for both
7 KLA operations against the Serbs and as the prison camp for Serb and
8 Albanian prisoners.
9 From at least this time, Limaj went under the pseudonym or nom de
10 guerre of Celiku, and the unit under his command at Lapusnik which was
11 commanded by the second accused in this case, Isak Musliu, was known as
12 Celiku 3.
13 The second accused, Isak Musliu. Isak Musliu is also 33 years
14 old. He was born in the village of Racak. You can see Racak there marked
15 on the map. Also a local man. He completed military service with the JNA
16 in 1989. He joined the KLA in 1996, and in April of 2000, he joined the
17 KPS or Kosovo Police Service. He was dismissed from the police on the 9th
18 of May, 2002. His nom de guerre during the war was Qerqiz. Shortly after
19 the 9th of May of 1998, Musliu became the commander of KLA soldiers in
20 Lapusnik directly under Fatmir Limaj. He was the local commander of
21 forces in Lapusnik as opposed to Fatmir Limaj, who was the regional
22 commander. Isak Musliu's role was to organise part of the defence of the
23 Lapusnik area and command the guards that ran the camp.
24 The third accused in this case, Mr. Haradin Bala, was born in
25 Korotice E Eperme, and you can see that also where the cursor is now
1 pointing, also a local man. He has a heart condition for which he's
2 currently being successfully treated, and whilst he has argued that such
3 condition makes him unfit to stand trial before you, physicians have
4 concluded that he is currently fit to be with us. Haradin Bala joined the
5 KLA in April 1998. He went to Lapusnik in May of 1998. He was a guard at
6 the Lapusnik prison camp. From this time, he went under the pseudonym or
7 nom de guerre of Shala.
8 I'd like to briefly address Your Honours, and I say briefly, on
9 the background and history of Kosovo.
10 All peoples, all countries, are shaped by their history, by the
11 ebb and flow of empires, by the providence that they enjoy, and by the
12 misfortune that they must suffer. In the countries of the former
13 Yugoslavia, history is ever present and inescapable. It animates,
14 justifies, and fuels the action, both good and ill, of all the peoples who
15 were once part of its complex mosaic. History, of course, is a subject
16 which must be treated very carefully within the context of an
17 international criminal prosecution. Quarrels over the truth or the
18 accuracy of certain historical events are a constant danger.
19 Nevertheless, a brief overview, I think, would be helpful for you.
20 For generations, Serbs and Albanians have disagreed over the true
21 history of Kosovo and the cultural ownership of the region, and both have
22 legitimate historical claims to the area. What is true is that for the
23 best part of a thousand years, Serbs and Albanians have lived both
24 peacefully and in conflict in what is today Kosovo. Albanians state that
25 they are the original inhabitants being descendents of the ancient
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13 French transcripts correspond
1 Illyrians. The Serbs state that Kosovo was at the heart of an ancient
2 medieval kingdom. They buttress these claims by pointing to the Orthodox
3 monasteries and churches which dot the landscape.
4 A key date in Kosovo's history is the 28th of June, 1389. Have no
5 fear, Your Honours, we're not going to go century by century to the
6 present day, but it's worth mentioning this. According to classical
7 Serbian history, on this date, the Serbian prince Lazar fought invading
8 Ottoman Turks at Kosovo Polje, the field of black birds, and he was
9 defeated. Although Lazar's death was celebrated as a glorious sacrifice,
10 this defeat opened the gates to a Turkish advance which would only be
11 stopped at the gates of Vienna some 300 years later.
12 This single event has exercised a powerful grip on Serbian
13 imagination, and the call to avenge Kosovo was an emotional one during the
14 nineteenth century with the re-awakening of Serbian national identity.
15 For many Serbs even today, Kosovo is regarded in the same way as we
16 British see Runnymede or the Americans Valley Forge. It is a central part
17 of their cultural and religious identity, as well as being the ancient and
18 historical homeland of a majority Albanian population.
19 The Ottomans ruled Kosovo for the best part of 500 years. They
20 brought with them the Islamic faith. Albanians converted in large
21 numbers, Serbs to a much lesser extent. Over this same period, many Serbs
22 migrated from Kosovo. The beginning of the twentieth century saw the
23 Serbs regain control of Kosovo from the Ottoman Turks during the Balkan
24 wars. Terrible crimes were committed against the Albanian population.
25 The First World War would find the Serbs defeated in Kosovo and
1 reprisals against their retreating army and Serb civilians. At the end of
2 those tragic four years, the Serbs would return and there were then
3 counter-reprisals against the Albanian population.
4 Throughout the interwar years, the Serbs tried to reverse the
5 population in balance in Kosovo by sending Serb settlers to the area.
6 During the Second World War, Serbs, especially the settlers, were driven
7 out. The end of the war saw the creation of communist Yugoslavia, with
8 Kosovo a province within the young nation. Albanians had hoped for a new
9 Albanian state incorporating Kosovo. This was not to be. And their
10 protests were brutally put down by the communist regime.
11 In the 1950s and 1960s, Kosovo's autonomy within Yugoslavia was so
12 diluted that by the early 1960s the province was under direct Serb as
13 opposed to federal rule. Tens of thousands of Albanians were literally
14 expelled from Kosovo. In the 1960s, Marsal Tito eased Serb control in the
15 province and enhanced the rights of the Albanian population. In 1974, the
16 province was granted full autonomy which gave it almost the same rights as
17 Yugoslavia's six republics.
18 In the post-1974 period, the Albanians were placed on a more equal
19 footing with the Serbs and were able to occupy leading positions in both
20 government and business in the province. From this time on, Serbs
21 complained of harassment by Albanians, who will also demanding the status
22 of a full republic for the province. By 1981 100.000 Serbs had left
23 Kosovo. Serbs were increasingly worried because, thanks to Serb
24 immigration and a high Albanian birth rate, the proportion of Serbs in the
25 province had now fallen to a mere one for every nine Albanians.
1 In 1981, there were large-scale riots by Kosovar Albanian students
2 over living conditions at the University of Pristina. These riots
3 escalated into calls for the independence of Kosovo. Following on from
4 these riots, the repression of the Kosovar Albanian population commenced,
5 with hundreds of arrests and ongoing security operations by the JNA and
6 police to try and maintain order in Kosovo.
7 After release from prison, many Kosovar Albanians emigrated to
8 Switzerland and Germany, where the LPK, or Popular Movement of Kosovo, was
9 formed with the aim of achieving freedom for the Albanian people in Kosovo
10 through an armed uprising. The LPK was the forerunner of the KLA.
11 From 1981 to 1987, tensions between the Serb and Albanian
12 communities in Kosovo increased with claim and counter-claim. The Kosovar
13 Serb community became more and more isolated and many felt obliged to
14 leave for Serbia proper. The press on both sides fuelled the difficulties
15 in Kosovo. Slobodan Milosevic then exploited the tensions in Kosovo and
16 rose to power on the back of Serb indignation over the perceived
17 siege-like status of Serbs in Kosovo.
18 By 1990, Milosevic had abolished the limited autonomy that Kosovo
19 enjoyed, installed Serbs in positions of leadership in the province and
20 the Albanian language and culture were repressed. During this period, the
21 LDK, or Democratic League of Kosovo, became a non-violent platform from
22 which Albanians could challenge Serb rule in Kosovo. Hundreds of
23 Albanians -- hundreds of thousands of Albanians joined this movement.
24 Mr. Ibrahim Rugova, the current president of Kosovo, was in fact the LDK's
25 first leader. By 1995, 1996, there was a growing disillusionment with the
1 LDK policy of non-violent resistance both from within the LDK itself and
2 from outside it.
3 The Dayton Peace Agreement in 1995 failed to address the issue of
4 Kosovo and the Albanian people in Kosovo felt betrayed. Support for the
5 LPK and an armed uprising against the Serbs grew. The LPK funded attacks
6 on Serb security forces from 1992 onwards. It organised military training
7 in Albania. The LPK and the emergent KLA attacked police targets, killing
8 police officers, both Serbs and Albanians. Serb refugee centres housing
9 Serbs who had fled the conflict in other parts of Yugoslavia, were
10 targeted. Serb unease and anger increased in the region and the reaction
11 of the security forces intensified.
12 Large numbers of Albanians were harassed, detained, and mistreated
13 by Serb security forces. Albanians were taken into custody and detained
14 without trial. Some died in police custody.
15 In 1997, Albania itself collapsed into anarchy and military
16 arsenals were broken into and robbed. Weapons were now available in large
17 quantities to Kosovar Albanians who wanted to bring the fight to the
18 Serbs. The KLA had existed since 1993, but it was the growing belief in
19 armed resistance to Serb rule, the sudden availability of weapons from
20 Albania, and the increasingly harsh actions of the Serb security forces
21 which led to their rapid and effective expansion in 1997 and 1998.
22 In February 1998, the Drenica region, a stronghold of the KLA at
23 the time, was targeted by Serb security forces who had the aim of
24 neutralising the KLA in the area. In the process, they killed a number of
25 Albanian women and children. Serb security operations on the Albanian
1 border to interdict weapons supplies to the KLA had the same results.
2 Civilians fled and some were killed. Villages -- Albanian villages were
3 looted and destroyed.
4 The KLA began to establish checkpoints on roads throughout the
5 region. Serb civilians living in these areas felt isolated and afraid.
6 Many fled to Serbia itself or to areas of greater Serb concentration in
7 the province. Social and business interaction between the two communities
8 dwindled and died.
9 And so the province rapidly spiralled into brutal ethnic conflict.
10 It is in this context, Your Honours, against this backdrop, that the
11 crimes in the indictment took place.
12 It is fair to say of Kosovo that it is a place which has always
13 remained on the periphery of those states and empires who claim
14 sovereignty in the region, so the presence of state and state apparatus
15 has always been very limited. Loyalties beyond family, clan, or local
16 village community have always been traditionally unstable or weak, and you
17 will see that in this case as the evidence unfolds.
18 If I could now briefly address you on the issue of armed conflict.
19 You'll see two paragraphs from the indictment, paragraphs 4 and 18, in
20 front of you.
21 The indictment contains charges under Article 3 and Article 5 only
22 of the Statute, war crimes and crimes against humanity respectively. It
23 is settled in the jurisprudence of this Tribunal that Article 3,
24 violations of the laws and customs of war, and Article 5, crimes against
25 humanity, can be committed in both internal and international armed
12 Blank page inserted to ensure the pagination between the English and
13 French transcripts correspond
1 conflicts. The Prosecutor expressly pleads in paragraph 4 of the second
2 amended indictment that after years of increasing tension and violence,
3 armed conflict commenced between Serb forces and the KLA in early 1998.
4 Taking paragraphs 4 and 18 together, we say that throughout the period of
5 the indictment, an internal armed conflict existed between the forces of
6 the then Federal Republic of Yugoslavia and the KLA, or Kosovo Liberation
8 All three accused state in their pre-trial briefs that they do not
9 accept that a state of internal armed conflict, as that phrase is
10 generally understood in international criminal law, existed between the
11 forces of the then FRY, Federal Republic of Yugoslavia, and the forces of
12 the KLA for the relevant period. The legal test to determine whether an
13 armed conflict existed at the relevant time was first set out by the
14 Appeals Chamber in the first case to be heard by the Tribunal, the
15 Prosecutor and Tadic. And for the purposes of my opening, that test can
16 be summarised as follows:
17 The Prosecutor must show protracted armed violence between
18 governmental authorities and organised armed groups. This calls for
19 presentation of evidence by the Prosecutor and, respectfully, scrutiny by
20 you, of the organisation of the parties to the conflict, firstly; and
21 secondly, consideration of the intensity of the conflict.
22 It is worthwhile, I think, Your Honours, for a moment to look at
23 the guidance given by the Appellate Chamber, now nearly ten years ago, in
24 Tadic. In the interlocutory appeals decision subsequently applied by the
25 Trial Chamber in trial of Dusko Tadic it was stated that the temporal and
1 geographical scope of both internal and international armed conflicts
2 extends beyond the exact time and place of hostilities. And that you will
3 find, Your Honours, at paragraph 67 of the appeals decision.
4 What is the significance of this? Well, the Appeals Chamber
5 realised that in order to sensibly assess the nature of a conflict, one
6 cannot limit one's attention to contextual events at or around the time
7 and place of the specific offences. In the instant case before you, I
8 would, respectfully, submit to you that you must not only look at events
9 in and around Lapusnik from May to July of 1998, but you must also
10 respectfully direct your minds to the evidence of events both before and
11 after the summer of 1998 which took place outside Lapusnik and the
12 municipality of Glogovac in determining whether an armed conflict was
13 taking place at the time period relevant to the indictment. And I mean
14 specifically referring to Kosovo, not the whole of Yugoslavia, but
15 certainly I would respectfully submit that you would direct your minds to
16 evidence of armed conflict going on in other area areas of Kosovo apart
17 from the municipality of Glogovac.
18 What of the evidence? Firstly, in respect of the organisation of
19 the parties to the conflict.
20 In a conflict, logically there are two sides. In this conflict,
21 on one side there was the Serb police. And as the conflict accelerated in
22 intensity, the VJ, the Yugoslav army. On the other side was the KLA, the
23 Kosovo Liberation Army. Dealing first with the Serb forces, you will hear
24 evidence that many of the police engaged were specialised combat units,
25 not exclusively regular police, which is a sign of how seriously the Serb
1 authorities regarded the threat from the KLA. The VJ was at first
2 deployed in the border regions. And if you look at the map in front of
3 you, you'll see that my colleague is showing you the border regions
4 between Albanian and Kosovo. The VJ was deployed in this region trying to
5 stem the flow of weapons and materiel from Albania into Kosovo. As 1998
6 progressed, the army was increasingly used to bring the fight to the KLA
7 inside Kosovo's borders.
8 We do not anticipate that the level of organisation of the Serb
9 forces will be disputed by the Defence. However, evidence of Serb police
10 and army, organisation and operation, I would respectfully submit to you
11 is important so the Court can assess the amount of military assets, the
12 amount of police assets, that the KLA was engaging by the summer of 1998.
13 The evidence is relevant not only to assess the organisation and
14 effectiveness of the KLA, but also reflects on the intensity of the
15 conflict itself.
16 What of the KLA itself? The Prosecutor does not dispute that in
17 1998 the KLA was a developing army. One cannot equate the KLA of 1998 to
18 a modern, well-organised NATO military force. We do not dispute that
19 until the late summer of 1998 the KLA was based on regional areas strongly
20 loyal to local commanders. In the instant case, Fatmir Limaj, or Celiku,
21 being the local regional commander.
22 But a modern, sophisticated, mature level of organisation is not
23 necessary for the purposes of this legal jurisdictional test. If that
24 were the requirement, if that were the jurisdictional requirement, then
25 one can realistically speculate that many conflicts around the world would
1 be beyond the reach of international criminal law. You will hear evidence
2 in this case from an international witness and a retired army officer that
3 by the summer of 1998 the KLA was sufficiently well organised to have
4 recognisable operational areas, logistical support in the forms of arms,
5 munitions, and uniform resupply from Albania, to operate rudimentary
6 headquarters throughout Kosovo, to recruit and train soldiers, and by
7 May/June of 1998, to control the passage along arterial roads within
8 Kosovo itself, which gave them control of territory. So they were holding
9 ground, which is what armies do.
10 Evidence of members of the KLA will corroborate the fact that by
11 the summer of 1998 the KLA was sufficiently well organised to mount
12 sustained military operations in many parts of Kosovo. The Prosecution
13 will be offering into evidence a number of KLA communiques, or public
14 statements from the end of 1997 and throughout 1998. In these statements,
15 the KLA emphasised on a number of occasions that it was an organised
16 military force conducting military operations as opposed to terrorist
17 attacks. Here you will see, Your Honours, one statement from the 11th of
18 July of 1998. The name of the individual bracketed, Krasniqi, was the
19 then spokesman for the KLA. I will let you obviously read all of it.
20 I've put the whole quote in so as to give it context. But if I could read
21 the last sentence: "Under our present circumstances, no kind of Sinn Fein
22 can be accepted and we will not even begin to resemble the IRA," referring
23 to the Irish Republican Army. "We are fighting for national liberation,
24 the UCK," which is the acronym but in the Albanian language for the KLA,
25 "is a liberation army and a regular military formation. It is not an
1 organised or group that goes in for small-scale actions. Our operations
2 are rather large and bear a greater resemblance to those of a regular
4 So at this time, in July of 1998, the KLA itself is declaring
5 itself to be an organised military formation. Most important, we know
6 that by June of 1998, the first accused in this case, Mr. Fatmir Limaj,
7 believed that the KLA was an organised structure with an authentic
8 political and military structure, because he said so. And I'm about to
9 play a video, and underneath it you'll see that it is subtitled. And this
10 is an extract, and I'd ask you to follow the subtitles underneath.
11 [Videotape played]
12 MR. CAYLEY: So, Fatmir Limaj at this time, you've just seen,
13 declared that the KLA was an organised structure with an authentic
14 political and military structure. Now, we know that this statement is
15 referring to the period of June of 1998, because you will recall when you
16 read that, that Mr. Limaj referred to the first appearance of
17 Mr. Krasniqi. And if I could show you this communique dated the 12th of
18 June, 1998, you will see that this is a communique announcing that the
19 Kosovo Liberation Army, or the KLA General Staff, had decided to appoint
20 Professor Jakup Krasniqi as its spokesperson or spokesman. And this
21 statement we know, because it's dated, is from 12 June 1998. So Fatmir
22 Limaj's statement on the organisation of the KLA is linked to this time
23 period, is linked to June of 1998, when he declared that the KLA was an
24 organised military structure.
25 Both Fatmir Limaj and Isak Musliu state in their pre-trial briefs,
12 Blank page inserted to ensure the pagination between the English and
13 French transcripts correspond
1 at paragraph 17, that in 1998, the then Prosecutor of the International
2 Criminal Tribunal, Louise Arbour, stated that she did not know whether the
3 KLA constituted an organised military force answerable to the Geneva
4 Conventions. I cannot find that statement, but I will show you what I
5 have found. And if I could show you this next document.
6 This is a public statement made by the Prosecutor on the 10th of
7 March of 1998. And it's regarding the Tribunal's jurisdiction over
8 Kosovo. I won't read it all to you, but you'll see the very last line,
9 and she is referring to her mandate or jurisdiction, which she'd already
10 set out: "This jurisdiction is ongoing and covers the recent violence in
12 So that was the position of the Prosecutor on the 10th of March of
13 1998. Now, the issues I know are linked, the organisation of the conflict
14 and the intensity of the conflict, but if I can now move on more
15 specifically to the second part of the test, the intensity of the
17 On the 31st of March of 1998, the Security Council, acting under
18 its Chapter 7 powers, considered that the situation in Kosovo was so
19 serious as to constitute a threat to international peace and security.
20 And in front of you, you can see that document. And here the Security
21 Council is condemning the use of excessive force by Serb police against
22 civilians and peaceful demonstrators in Kosovo, as well as all acts of
23 terrorism by the Kosovo Liberation Army, or any other group or individual,
24 and all external support for terrorist activity in Kosovo.
25 If I could have the next slide. This same resolution also decided
1 that states should not supply weapons either to the Federal Republic of
2 Yugoslavia or, in fact, to the Kosovo Liberation Army, although the KLA is
3 not specifically referred to there, it refers to providing military
4 materiel and equipment for terrorist activities. Most importantly in this
5 document is the last paragraph, which we could display now, which urged
6 the then Prosecutor, Louise Arbour, to begin gathering information on
7 violence in Kosovo that may fall within the jurisdiction of the ICTY. It
8 also advises the Federal Republic of Yugoslavia to cooperate with the
10 So that was the position, essentially, of the Prosecutor and the
11 Security Council in March of 1998. Now, on the 7th of July, the
12 Prosecutor wrote to an organisation called the Contact Group, which you
13 may remember, which is a group of states that were essentially keeping a
14 watch over Kosovo. This is a letter that she wrote to the then
15 ambassador, the United States ambassador to the United Nations, and this
16 is after several months of investigation into crimes in the region where
17 she confirmed that the situation in Kosovo met the legal definition of an
18 armed conflict, triggering the Tribunal's jurisdiction in the region.
19 Now, this was clearly a retrospective declaration based on several
20 months of investigation and work within Kosovo and was referring to crimes
21 that had already been committed in 1998. Security Council Resolution 1199
22 of 23rd September 1998 noted this letter from the Prosecutor of the ICTY
23 and also expressed the view that the situation in Kosovo represented an
24 armed conflict within the terms of the mandate of the Tribunal.
25 Now, these representations by the Prosecutor, while not proving
1 that armed conflict existed, certainly, in my respectful submission, gets
2 us part of the way there and certainly disproves the Defence assertion in
3 their pre-trial brief that this office and the then Prosecutor believed in
4 the summer of 1998 that there was no armed conflict in Kosovo.
5 It's also interesting to note that by September of 1998, the
6 Security Council was describing the fighting in Kosovo as intense and was
7 expressing grave concern about reports of increasing violations of
8 international humanitarian law.
9 Security Council involvement continued and increased throughout
10 1998 and culminated in June of 1999 with Resolution 1244, which I've
11 already referred to, the establishment of the United Nations interim
12 administration in Kosovo. By the 14th of August of 1999, all Yugoslav
13 forces had withdrawn from Kosovo and 40.000 NATO troops had deployed into
14 the region.
15 Evidence will be heard from an international witness and a former
16 army officer present in Kosovo and charged with monitoring the escalation
17 of the conflict, that over the time period of the indictment, from May to
18 July of 1998, the conflict expanded geographically and in its seriousness
19 and intensity. Members of the Yugoslav army and the Serb police will
20 corroborate this witness in confirming that in the relevant part of 1998,
21 war escalated in the region.
22 The highly respected Human Rights Watch organisation spend much of
23 1998 documenting human rights abuses in Kosovo. And if we could have the
24 next slide up. I think this speaks for itself. I'll read it, if I may,
25 into the transcript: "The applicability of Common Article 3 and
1 Protocol II to the conflict in Kosovo. The hostilities between the UCK
2 and government forces had, by February 28th, 1998, reached a level of
3 conflict to which the obligations of Common Article 3 apply. Given the
4 subsequent intensity of the conflict from March to September, Human Rights
5 Watch is also evaluating the conduct of the UCK and government forces
6 based on the standards enshrined in Protocol 2 of the Geneva Conventions."
7 We will present this report to you and this finding through a
8 witness from Human Rights Watch. While, of course, again I emphasise,
9 Your Honours, the Court is not bound by the finding of this international
10 organisation, I would submit that this evidence is relevant, its
11 probative, it's presented by a non-partisan group with vast experience and
12 expertise of conflicts and their nature around the globe.
13 Finally, members of the KLA and, as I've already stated to you,
14 members of Serb forces certainly believed that by the summer of 1998 they
15 were engaged in an armed conflict, and we will present evidence to that
16 effect from both parties. And I'll just show to you -- it's a long
17 document, and I don't intend reading all of it. But the interesting thing
18 about this is that it's a KLA communique on the right-hand side of the
19 page of the 13th of May of 1998, and on the left-hand side of the screen,
20 you see a report from the command of the Pristina Corps, which was the
21 main VJ formation present in Kosovo during this troubled time. And you
22 can see that, on the left-hand side of the page, General Pavkovic, who was
23 the commander of the Pristina Corps, who's been charged by the Tribunal
24 with crimes during 1999, he is saying that the security situation in
25 Kosovo is getting more and more complex every day due to the operations of
1 Albanian terrorists, whose increasingly frequent attacks on Ministry of
2 Interior members, citizens of Serbian nationality, and Siptar's Albanians
3 loyal to the system are sowing fear and uncertainty.
4 And if you go to the next box on that page, I won't read all of
5 it, but it's worth mentioning, I think: "By their manner of operation and
6 application of intelligence and security, engineering and logistic support
7 measures, the terrorist forces are increasingly taking on the attributes
8 of a military organisation and are setting up units from platoon to
10 If we could go over to the next page. The document on the right
11 remains the same. The document on the left is the second page of the
12 report. Here you can see General Pavkovic is estimating that by May, the
13 KLA held about 30 per cent of the territory in the country. And you'll
14 see at the bottom of that highlighted paragraph that the Siptar, the
15 Albanian terrorists have large quantity of weapons of various calibres and
16 other equipment for guerrilla warfare. They have problems with ammunition
17 shortages, which is why further attempts at forced entry over the state
18 border from the directions of Albania and Macedonia are to be expected.
19 If you look at the document on the right-hand side, you will see,
20 and I won't go through all of this, we'll deal with it in more detail with
21 a witness, but here the KLA is setting out the military operations which
22 General Pavkovic is speaking about in this report. So Pavkovic, the VJ
23 general, is basically responding to military operations being carried out
24 by the KLA which are specified in this communique on the right-hand side.
25 If we could go to the next slide. And now I've just put four
12 Blank page inserted to ensure the pagination between the English and
13 French transcripts correspond
1 completeness sake the signature and stamp box of General Pavkovic, who, as
2 I say, has been charged by the Tribunal.
3 Mr. President, what time would you like me to go until?
4 JUDGE PARKER: We would normally think of breaking at about 20
5 minutes to the hour.
6 MR. CAYLEY: Thank you.
7 If I could now address you on paragraph 19 of the indictment. All
8 acts and omissions charged as crimes against humanity were part of a
9 widespread and systematic attack direct against the Serb civilian
10 population and perceived Albanian collaborators. Counts 1, 3, 5, 7, and 9
11 charge the accused with crimes against humanity. The evidence in support
12 of those counts is identical to that evidence which we offer for the
13 charges under violations of the laws and customs of war. Crimes against
14 humanity, like violations of the laws and customs of war, must be
15 committed in the context of an armed conflict.
16 Article 5, as Your Honours know, also requires proof that the
17 perpetrator must know that the acts, his acts, constitute part of a
18 pattern of widespread or systematic crimes directed against a civilian
19 population and know that his acts fit into such a pattern.
20 I mention this, Your Honours, because the accused dispute this
21 allegation. They dispute that these crimes were part of a widespread and
22 systematic attack on the population. So I will briefly address you on
23 this requirement.
24 The Stakic judgement, following -- Stakic trial judgement,
25 following Kunarac, identified factors which indicate a widespread or
1 systematic attack, noting in particular the consequences of the attack
2 upon a targeted population, the number of victims, the number of acts, the
3 nature of the acts, the possible participation of officials or
4 authorities, and any identifiable pattern of crimes.
5 Now, the Simic judgement confirmed that there is in fact no
6 requirement in customary international law that acts which form part of
7 the attack be connected to a policy or a plan. So that very briefly is
8 the law, and the law is set out in more detail in our pre-trial brief.
9 Human Rights Watch, in a report documenting breaches of
10 international humanitarian law in 1998, to which I've already referred,
11 stated that from February to early September 1998, the KLA had violated
12 the laws of war by taking civilian hostages and committing summary
13 executions. While the report contains statements by KLA officials
14 condemning kidnapping and human rights abuses, it also cites to an
15 announcement by the KLA spokesman, Jakup Krasniqi, in July of 1998, who
16 readily acknowledged that civilians connected to the army or the police
17 had been kidnapped by the KLA and that so-called Albanian collaborators
18 had been targeted. And this is the announcement here that was made by
19 Krasniqi. It's not entirely unequivocal, to be fair, and for that reason
20 I'll read the sections out that I've highlighted.
21 This is what he said in July of 1998, and you'll recall that this
22 is the gentleman who was the spokesman for the KLA, appointed in June of
23 1998: "First of all, Serbian forces, whether the police, the military, or
24 armed civilians, are our enemy. From the start, we had our own internal
25 rules for our operations. These clearly lay down that the UCK recognises
1 the Geneva Conventions and the conventions governing the conduct of
2 warfare. We do not go in for kidnapping, even if some people have
3 suffered, these have been more Albanian collaborators than Serbian
4 civilians. We do not deal with civilians, and we return those whom we
5 take as prisoners of war. Those we have kidnapped are either announced in
6 a list or reported to be executed, but we do not behave in a base fashion
7 like Serbia."
8 So not an entirely unequivocal statement, but nevertheless an
9 acknowledgment, in July of 1998, by the spokesperson for the KLA, that
10 they had kidnapped individuals who were either announced in a list or
11 reported as executed.
12 So based on the KLA's own public relations mechanisms, we know
13 that at a central level the KLA knew and publicly confirmed that there
14 were kidnappings and executions taking place. The Prosecutor will offer
15 specific evidence of an Albanian man abducted by members of the KLA and
16 murdered just over a month after Jakup Krasniqi made this announcement.
17 Now, this you can see on the screen in front of you, is an
18 execution warrant. The actual warrant is the manuscript document on the
19 right-hand side, the translation is on the left-hand side, and I have
20 blown this up. And this is what the document stated. This was found on
21 the body of this man that was murdered. I will go into detail about
22 this: "For collaborating with the occupier and spreading anti-Albanian
23 propaganda, causing fear, panic, and hatred in the name of the Albanian
24 people, and in the name of our war of liberation, Ramiz Hoxha [phoen],
25 from Belanica is sentenced to death as a traitor to the nation. Such a
1 fate awaits any other traitor."
2 Now, this death of Mr. Hoxha from Belanica was then confirmed in
3 the press, and you can see that here. Ramiz Hoxha, from Belanica village,
4 executed earlier by the KLA, as well as being in long-term coordination
5 with Agim Krasniqi [phoen], a member of the KLA Presidency. The LDK
6 Presidency. My apologies.
7 Now, the body of this man was found with the execution warrant,
8 the document that I showed you before this one, attached, as I say,
9 stating that he had been executed as a traitor. No evidence exists of any
10 trial for treason, nor is there any evidence that Mr. Hoxha was in fact a
11 traitor. You've seen the newspaper report which subsequently confirms
12 this man's death. Human Rights Watch estimated that by the end of 1998
13 well over a hundred Serbs, and probably many more, had been abducted by
14 the KLA from Orahovac. A number of these Serbs were released, and a
15 number simply vanished. In July of 1998, a group of Serbs were abducted
16 and held by armed Albanians in Malisevo. One escaped, the fate of the
17 other prisoners is unknown. And the Human Rights Watch report goes on to
18 list the abduction of other Serbs, Roma and Albanians, throughout 1998.
19 The expert witness, Stephanie Schwander-Sievers, will confirm that
20 it was well known in the summer of 1998 that those members of the Albanian
21 civilian population who are against Serb rule did not unconditionally
22 support the KLA were brutally dealt with by the KLA.
23 In December of 1998, Susan Ringaard Pedersen, a Dane working for
24 the OSCE in Kosovo met with Serbs from all over Kosovo who were giving
25 accounts of missing persons allegedly kidnapped by the KLA in the summer
1 of 1998. OSCE, the Organisation for Security and Cooperation in Europe,
2 received reports of missing Kosovar Albanians and Romas. Ms. Pedersen
3 eventually met with the KLA commander in the Lapusnik zone who confirmed
4 to her that the KLA did in fact have Kosovar Albanians in custody who were
5 either collaborators or criminals. Ms. Pedersen was referred to a
6 gentleman by the name of Fahti [phoen] who was described as the head of
7 the military police of the KLA. Fahti confirmed that the KLA had
8 individuals in custody, and he confirmed that prisoners were kept in
9 private houses and moved, depending on Serb military advances. Now, we
10 know that this is absolutely consistent with what happened in the Lapusnik
11 camp in 1998. The camp was a makeshift affair located in agricultural and
12 domestic premises and it was moved. The prisoners were moved once Serb
13 forces advanced into the area. Ms. Ringaard, who will give evidence to
14 the Court, asked this Fahti for a list of prisoners at her meeting. She
15 never received one.
16 Members of the Serb security forces will corroborate by documents
17 and oral testimony a well known and widespread policy in the summer of
18 1998 of the kidnapping of Serb and Albanian citizens by elements within
19 the KLA.
20 So the evidence, Your Honours, will paint a picture that as far as
21 the specific crimes that were committed in Lapusnik are concerned, they
22 are part of conduct which can be categorised as either widespread or
23 systematic. Abductions were carried out over a period of months.
24 Abductions were carried out over a fairly broad geographical area. Both
25 Serbs and Albanians were targeted. The individuals abducted were brutally
12 Blank page inserted to ensure the pagination between the English and
13 French transcripts correspond
1 treated and murdered over this three months. International observers from
2 OSCE, from Human Rights Watch, identified a pattern of abductions of Serbs
3 and Albanians in parts of Kosovo in the summer of 1998. High officials, a
4 high official within the KLA in July of 1998 and later in 1999 readily
5 acknowledged that individuals were kidnapped, imprisoned, and in certain
6 instances executed, showing at least an awareness of events on the ground,
7 if not a condoned policy. Serb security officials reported throughout
8 this period a pattern of abductions and killings by the KLA of Serbs and
10 Mr. President, I note it's 20 to and it's a convenient point for
11 me, if it is for you.
12 JUDGE PARKER: We will have the first break now, resuming at 4.00.
13 --- Recess taken at 3.40 p.m.
14 --- On resuming at 4.02 p.m.
15 JUDGE PARKER: Just before you continue, Mr. Cayley, could I
16 indicate that to this moment, the reports the Chamber has received about
17 the matter that was raised this morning and which has been the subject of
18 submissions by Defence counsel earlier, is not progressing satisfactorily,
19 and for that reason, the Chamber would now formally order that the
20 Registrar take all steps necessary to ensure that the accused in this
21 trial are not blindfolded during their movement between the detention
22 facility and this Tribunal. We hope that, armed with that order, better
23 progress may prove possible.
24 Mr. Cayley.
25 MR. CAYLEY: Thank you, Your Honours. I've been requested if I
1 can go more slowly. So I'm going to move a bit more slowly than I was. I
2 hope I wasn't going too quickly beforehand.
3 JUDGE PARKER: The need to translate, as I understand,
4 progressively from one to another to another language, undoubtedly places
5 great demands on the people trying to keep up with you. So I think that
6 would be a good move.
7 MR. CAYLEY: I'd like to briefly address Your Honours on the
8 nature and identity of the victims in this case. The victims in this case
9 were Serbs and Albanians. Serbs were specifically targeted because they
10 were Serbs, because they were identified with the ethnicity of the
11 security forces in Kosovo. All of the Serbs except for one were
12 civilians. One was a non-commissioned officer in the VJ, the Yugoslav
13 army, Stamen Genov, who was in fact an ethnic Bulgarian, but a Yugoslav,
14 serving in the Yugoslav army. And I will deal with the circumstances of
15 his murder later in my opening.
16 Some of the Serb victims were refugees who had been relocated to
17 Kosovo from other parts of Yugoslavia. So they, for whatever reason,
18 well, war was the principal reason why they had become refugees from other
19 parts of Yugoslavia. They had been relocated by the authorities in
20 Belgrade to Kosovo. But most of the Serb victims were in fact Kosovar
21 Serbs, ethnic Serbs born and brought up in Kosovo itself.
22 The Albanians who were targeted by the KLA we have referred to in
23 our indictment as perceived collaborators. I emphasise the
24 word "perceived" because the evidence in this case will show that Kosovar
25 Albanians were often arrested for having had social contacts with the Serb
1 community. They might have opposed Serb actions in Kosovo but disagreed
2 with KLA methods. Another Albanian might have been a former state
3 employee, a forest worker, a former policeman. None of this, none of
4 this, of course, legitimises the brutality and killing that took place in
5 Lapusnik between May and July of 1998.
6 Now, if I may, Your Honours, I would like to address you on the
7 law and, more broadly, more fully, in respect of the evidence for each
8 count in the indictment. I've already stated that the Prosecutor relies
9 only on Articles 3 and 5 throughout the indictment. The general legal
10 requirements of crimes against humanity and violations of the laws and
11 customs of war are found in paragraphs 100 to 109 of the Prosecutor's
12 pre-trial brief. None of the accused challenge the Prosecutor's
13 characterisation of the law. Of course they challenge the evidence. So I
14 would, most respectfully, refer you to those paragraphs in the
15 Prosecutor's pre-trial brief. The only areas of dispute on the law
16 between the Prosecution and the Defence I will, and I indeed have
17 addressed you on.
18 Counts 1 and 2, imprisonment. Count 1 charges all three accused
19 with a crime against humanity; specifically, imprisonment. In essence,
20 the law says this: You cannot imprison an individual in wartime without
21 justification. And even if you have justification, you cannot maintain
22 confinement unless there is compliance with the procedural safeguards of
23 the Geneva Conventions. The evidence will show in this case that there
24 was no lawful basis for imprisonment. As for compliance with the
25 safeguards of the Geneva Conventions, it barely justifies comment. They
1 were never followed.
2 Cruel treatment, count 2. In count 2, we charge the unlawful
3 detention in this case as cruel treatment, a violation of the laws and
4 customs of war under Article 3 of the Statute. The legal definition of
5 cruel treatment was intentionally drafted widely to encompass all serious
6 unlawful harm that non-combatants might be subjected to in warfare. The
7 definition is: An act or omission which causes serious mental harm or
8 physical suffering or injury or constitutes an attack on human dignity.
9 And it must be committed against a person taking no active part in
11 Now, whilst unlawful imprisonment has not yet been categorised by
12 Chambers within the Tribunal as forming cruel treatment, the jurisprudence
13 clearly demonstrates that the courts have considered matters on a
14 case-by-case basis and that the offence of cruel treatment is part of a
15 group of core protections found in Common Article 3 of all of the Geneva
16 Conventions. My submission to you is that to arbitrarily abduct and
17 imprison any person taking no active part in hostilities, with no legal
18 justification, no access to legal advice, no respect of the minimum
19 safeguards of the Geneva Conventions, no indication to the prisoner why he
20 is being detained, for how long he will be detained, where all around him
21 there is death and violence is, at the very least, a serious attack on
22 human dignity and warrants classification as cruel treatment and a
23 violation of the laws and customs of war.
24 Now, the three accused, while again of course taking issue with us
25 on our evidential basis, do not take issue with us on the assertion that
1 unlawful imprisonment is a form of cruel treatment.
2 The evidence in this case will show that there was no legal basis
3 for the abduction and imprisonment of any of the victims. Persons were
4 arrested and imprisoned because they were Serbs or because they were
5 Kosovar Albanians, who were arbitrarily regarded as collaborators. There
6 was no evidential basis presented at the time for this classification. In
7 no case were the safeguards of Article 43 of the Geneva Conventions met.
8 The evidence concerning abduction and imprisonment is remarkably
9 consistent with respect to each subset of victims with respect to the
10 Albanian victims and with respect to the Serb victims. All of the Serbs
11 were abducted in similar circumstances; the same can be said for the
12 Kosovar Albanian victims.
13 So while you will hear evidence in this trial of the abduction and
14 imprisonment of a number of victims, in my opening, I will limit myself to
15 providing an example to you from each ethnic group.
16 Without wishing to repeat myself too often, some general comments:
17 Individuals were abducted and taken to Lapusnik from May to July of 1998.
18 At the end of July of 1998, as a result of Serb military operations in the
19 area, the camp was evacuated and the remaining prisoners, in equal
20 measure, were either released or executed. Only Albanian prisoners were
21 released. By this time, all of the Serb prisoners, apart from two Serbs,
22 had been murdered. And you will hear those two Serbs. They will be
23 witnesses in this case.
24 Most victims were transported to the Lapusnik camp by vehicle.
25 Often victims were tied and blindfolded by placing sacks or blankets over
1 their heads. In the worst instances, victims were placed in the boots or
2 trunks of a motor vehicle and forced to remain there for hours on end
3 whilst making their journey to the camp. Many of those abducted were
4 severely beaten on their way to the Lapusnik camp. Some so seriously,
5 they could no longer walk; in at least one instance, until they were
6 beaten absolutely senseless.
7 This is an account of one man whose fate was to be executed on the
8 closure of the camp but who managed to survive. You will hear his story
9 in this courtroom. He will be a witness in this case. Rizah Rexhaj is
10 from the village of Petrov, and you can see the village of Petrov is
11 marked on the map and you can see Lapusnik here in the red square. So
12 Lapusnik is here, Petrov is here, highlighted with the yellow highlighter.
13 A few days after the 4th of July of 1998, Rizah Rexhaj's
14 60-year-old father, Hetem, a farmer, a civilian, was taken by the KLA and
15 unlawfully imprisoned in the Lapusnik camp. Rizah, the subject of this
16 account, searched for his father for two weeks, trying to speak with local
17 officials in the KLA to find some news of his father's fate. He was
18 directed to Celiku, the first accused in this case, Fatmir Limaj, to
19 secure his father's release, but all to no avail. Nobody would help him.
20 Very late one night, a group of armed KLA soldiers arrived by
21 vehicle at the family house in Petrov. He was arrested, placed in a
22 vehicle, his head covered, and he was driven to the Lapusnik camp. The
23 gates of the prison were opened by the third accused, Haradin Bala. Rizah
24 was made to turn over all of his valuables to Haradin Bala, together with
25 his belt and shoelaces. He was placed in a room in the main house in the
1 camp. There were other prisoners there. Haradin Bala asked Rizah why he
2 was looking for his father. And then proceeded to beat him so severely
3 that he became unconscious. Rizah witnessed a man who was in fact
4 murdered, called Shaban Hoti, also being beaten. His arms and legs
5 secured by chains, covered in blood, were set about by three KLA soldiers,
6 stamping on him, kicking him, like savages.
7 You will hear the full description of this senseless butchery from
8 Rizah Rexhaj when he testifies in this case. Sport for guards. Shaban
9 Hoti was a professor and a linguist. His only offence was to have worked
10 as an interpreter for a group of journalists of whom the KLA disapproved.
11 Rizah Rexhaj was constantly forced to witness this kind of violence, as
12 well as being beaten himself by both Haradin Bala and the second accused,
13 Isak Musliu.
14 On one occasion, Rizah Rexhaj saw Fatmir Limaj at the camp. At a
15 later stage, Rizah Rexhaj was moved to the stable where he stayed until he
16 left Lapusnik at the end of July, in the face of the Serb military
17 advance. At this time, Haradin Bala, under orders from Klecka and Fatmir
18 Limaj took the remaining 20-odd prisoners and marched them to the place
19 I've marked on the map here, Berisa. You can see Berisa marked; you can
20 also see Lapusnik is marked.
21 Half of the prisoners were released and ten murdered by
22 firing-squad, led by Haradin Bala. Rizah Rexhaj was supposed to be
23 executed that day on the mountainside, but his survival and courage is
24 actually why we're all here today. He had the courage to come forward,
25 identify the accused, and show UNMIK the site of the killing. This is how
1 the bodies were recovered and identified. And I will give you more detail
2 of that later in my opening.
3 His father, Hetem Rexhaj, who he had originally gone to search
4 for, who disappeared, he saw for the last time on the 26th of July. His
5 father had been kept in another part of the camp. When the prisoners were
6 all marched from Lapusnik to Berisa, his father was in the group, so he
7 saw his father at that time. His father was executed on the mountainside.
8 A farmer, a civilian. But his son, Rizah, would survive, and you will
9 hear directly from him about this tragedy.
10 Serb victims were principally abducted and imprisoned in May and
11 June of 1998. When the camp was evacuated in July, there were only two
12 known Serb survivors. It is their story that I will tell, but it does
13 serve as a basis for the imprisonment of many of the Serb victims in this
15 On the 29th of June of 1998, two Serbs, father and son, Vojko and
16 Ivan Bakrac, were taken from a bus travelling from Kosovo to Belgrade in a
17 village called Crnoljevo. You can see marked on this map in front of you.
18 This road, essentially it comes from the south up from Suva Reka, travels
19 through Crnoljevo, and this is the road that they would have taken on
20 their way to Belgrade and Serbia proper. At this time, in June of 1998,
21 Crnoljevo was the KLA stronghold, and the local commander there was
22 subordinated to the first accused in this case, Fatmir Limaj.
23 Many families of all ethnicities have suffered in this war in
24 Yugoslavia, but the tragic odyssey of the Bakracs, I think, is
25 demonstrative of the entire breakdown of this nation. Vojko, an ethnic
1 Serb, born in Slovenia, his son Ivan, also an ethnic Serb, born in Zagreb,
2 in Croatia, in 1979. In 1992, Serbia and Croatia were at war with each
3 other. At the age of 13, Ivan and his family were forced to leave Zagreb
4 and flee to Belgrade. The Serbian authorities in Belgrade found his
5 father Vojko work in Kosovo, in Djakovica, in a hotel. The Bakracs soon
6 realised that Kosovo was about to explode into ethnic conflict, and the
7 family planned constantly to try and leave Kosovo and find a better life
8 away from Yugoslavia.
9 In June of 1998, the Bakracs will tell you that Kosovo was in
10 crisis, that the KLA was controlling many of the roads in the province,
11 and that it was very unsafe to travel on the roads if you were a Serb. At
12 the time of their kidnapping by the KLA, the Bakracs were having to make a
13 final journey to Belgrade to obtain papers and permission to leave the
14 country for good.
15 The bus was stopped by members of the KLA at the village of
16 Crnoljevo, marked on the map. Father and son will say that they were
17 removed from the bus with two other victims in this case, murdered
18 victims, Stamen Genov, and Djordje Cuk, the man that you will recall I
19 mentioned was a non-commissioned officer in the Yugoslav army. The
20 second, Djordje Cuk, was a Serb civilian. Father and son were very
21 frightened indeed, but they thought -- as they thought they were about to
22 be killed. Mrs. Bakrac, Vojko's wife, remained on the bus. She was
23 hysterical. Each of us can imagine the scene. On covering that Stamen
24 Genov was in the VJ, in the Yugoslav army, the Bakracs will state to the
25 Court that he was so badly beaten by members of the KLA that he could no
1 longer stand on his own two feet.
2 Ivan and Vojko Bakrac were taken along with Stamen Genov and
3 Djordje Cuk to a location which they cannot name but which both father and
4 son have identified from photographs as the place -- as the location which
5 the Prosecutor says is the makeshift detention camp at Lapusnik. Ivan,
6 the son, will identify the accused Haradin Bala as being a guard in the
7 camp. He identified Mr. Bala from a photo spreadsheet that was presented
8 to him during interview and confirmed to the investigator that Haradin
9 Bala was the man that he knew as Shala in the prison camp at Lapusnik.
10 The father, while unable to identify Haradin Bala from
11 photographs, provides a compelling description of the third accused in
12 this case and confirms that the man that he describes he knew as Shala,
13 the nom de guerre of Haradin Bala.
14 Recall, Your Honours, that Haradin Bala expressly acknowledges
15 being called Shala but denies being in Lapusnik after late May of 1998.
16 And there is no doubt at all, Your Honours, that the Bakracs were taken
17 and unlawfully imprisoned in the Lapusnik camp at the end of June of 1998.
18 Both witnesses describe very accurately the basement area of the camp,
19 where father and son were kept with a number of other Serb and Albanian
21 Being Serbs from Croatia, Ivan wisely lied and said they were
22 Croats rather than Serbs, hoping that this might save them. They believe
23 that initially this may have saved their lives, although the KLA
24 subsequently realised that they were Serbs from Croatia. Both witnesses
25 will go on to explain how, after seven days, the KLA decided to release
1 them. Father and son were forced to make a statement on a video-recording
2 by the KLA to say how well they had been treated at Lapusnik. Then they
3 were blindfolded, led to a vehicle, and driven to Malisevo, where they
4 were released into the custody of the international committee for the Red
5 Cross. I would draw your attention, Your Honours, to an interview that
6 I've already shown to you, with Jakup Krasniqi, the official spokesman for
7 the KLA, who on the 10th of July, 1998, stated to a newspaper in Kosovo,
8 "Koha Ditore," the following, and I'll read to you what he said: "A few
9 days ago, we handed over two Serbs originating from Croatia to the
10 International Red Cross." And then he goes on to state part of the quote
11 that I read earlier: "Those we have kidnapped are either announced in a
12 list or reported to be executed, but we do not behave in a base fashion
13 like Serbia."
14 So here Jakup Krasniqi is discussing, expressly announcing the
15 release of these two Serbs, of the Bakracs.
16 These two men are the only known Serb survivors from the camp.
17 Stamen Genov and Djordje Cuk were taken with them. They've never been
18 seen again. The circumstances of their murder I will deal with later in
19 my opening.
20 Counts 3 to 6, torture, inhumane acts and cruel treatment. These
21 counts, Your Honours, cover the mistreatment of prisoners at the camp, the
22 physical abuse that was meted out to many of the victims, and also the
23 appalling conditions in which prisoners were forced to live. The lack of
24 proper food, the grotesque hygiene conditions and the primitive and
25 barbaric manner in which many of the prisoners were chained up like
1 animals and made to lie in their own excrement, unable to move or walk
3 Again, while the three accused dispute the evidence, they do not
4 dispute our characterisation of the law, and you will find that in
5 paragraphs 112 to 121 of the Prosecutor's pre-trial brief.
6 Counts 3 and 4 both charge torture, first as a crime against
7 humanity. Counts 3 and 4 both charge torture, first as a crime against
8 humanity, and secondly, as a war crime. Tribunal jurisprudence confirms
9 that the basic elements of the offence are the same, whether torture is
10 charged under Article 3 or under Article 5. The only distinction -- the
11 only legal distinction between the two offences being the general legal
12 requirements of a crime against humanity.
13 Torture is distinguished from other forms of maltreatment on the
14 basis of the seriousness and purpose of the attack. The purpose can be to
15 obtain information or a confession or, indeed, to just intimidate
16 somebody. It is worth noting, Your Honours, that the purpose need only be
17 part of the motivation. It need not be the sole or even the predominant
18 purpose of the attack. The Krnojelac judgement provides some useful
19 guidance at paragraph 182, which respectfully, I think, will assist the
20 Court in making a finding on this count.
21 As to counts 5 and 6, we charge inhumane acts as a crime against
22 humanity and cruel treatment as a violation of the laws and customs of
23 war. Again, the basic ingredients of the offences are the same. The only
24 distinction being the additional general legal requirements of a crime
25 against humanity.
1 What of the evidence? The evidence, Your Honours, in this case
2 will show that while not all prisoners were beaten, those that were, were
3 often beaten ferociously, repeatedly, and often until they fell into an
4 unconscious state. Physical violence and the intimidation and fear which
5 arises from it was the very essence of the regime at Lapusnik. In some
6 instances, you will hear that prisoners were literally beaten to death.
7 Survivors will say how they lost teeth, how they were beaten until
8 ribs were broken, how men were literally broken down by repeated constant
9 brutality. Prisoners were beaten with fists, stamped on, kicked, attacked
10 with instruments. Constant fear consumed all of the prisoners. Each
11 could see the results of the latest attack. Who would be next? How long
12 would they be beaten for? Who would beat them? Would they survive
13 another beating?
14 Forensic evidence and the oral testimony of a survivor will show
15 that in one instance a prisoner was beaten so severely that the tibia bone
16 of his leg was literally cleaved in two. I've already stated to you that
17 at the final execution site in Berisa, nine sets of mortal remains were
18 uncovered by UNMIK. Those remains were examined by a forensic
19 pathologist, a forensic anthropologist, and Professor George Maat,
20 professor of anatomy and forensic anthropology at the University of
21 Leiden. That forensic evidence will show together that these prisoners,
22 these dead that were recovered at Berisa had suffered traumatic injuries
23 to chest, forearm, lower legs, teeth, some of the injuries were described
24 as life-threatening. All were consistent with having been stamped on,
25 received blows from fists or other blunt-force trauma.
1 The evidence will show, Your Honours, that those prisoners who
2 were beaten were sometimes interrogated at the same time they were beaten.
3 A number of prisoners will state that while they were beaten, they were
4 interrogated by their torturers about their interaction with the Serb
5 population in Kosovo.
6 At other times, the evidence will demonstrate that the beatings
7 took place as a severe form of intimidation. I will leave it respectfully
8 to Your Honours to decide when physical violence reaches such a threshold
9 that it becomes torture, but I would respectfully suggest some markers for
11 Firstly, the extraordinary intensity of the beatings in this case.
12 Secondly, the repeated nature of physical beatings or attacks on
13 individuals. Thirdly, the state of victims after attacks. And lastly,
14 the extended period over which attacks took place.
15 Prisoners were often tied up when they were beaten. Sometimes
16 they were blindfolded. Often, but not always, their torturers, KLA
17 soldiers in Lapusnik, had their faces covered when they were engaged in
18 this violence. But often, prisoners came to know their torturers because
19 of the masked individual's the stature, his nickname, his nom de guerre,
20 his voice, the way in which he went about his beatings.
21 The other physical and mental abuse suffered by the prisoners were
22 the conditions of the detention itself. Those prisoners in the stable,
23 and I think tomorrow when the first witness testifies you will see these
24 locations within the camp, you'll see what I mean by the stable. Those
25 prisoners in the stable were essentially chained up like animals, unable
1 to move properly, dirty, bleeding, hungry. On the provision of food and
2 water, you will hear mixed accounts. Prisoners taken early on, it seems,
3 suffered more than those who came later. Further, certain prisoners seem
4 to have been targeted specially for abuse, which led to paltry rations or
5 lack of drinking-water.
6 Some prisoners talk about very little food or water being
7 provided. Others say it was not good, but it was adequate. Hygiene was
8 poor, and in my submission, deliberately so. Where prisoners were allowed
9 to relieve themselves, as opposed to being forced to foul themselves, they
10 had to share an overflowing and irregularly emptied bucket. There was
11 virtually nothing in the way of medical care for the prisoners. And in a
12 way, in a place where so much violence was inflicted on an institutional
13 basis, it is not surprising at all that prisoners were not cared for. For
14 many of them, for many of them, Your Honours, they were simply confined to
15 this place with the sole intention of making them suffer as much as
16 humanly possible.
17 Haradin Bala is linked by a number of victims to the violence in
18 this camp. He, it seems, was never masked. Victims knew him by name and
19 nickname and described his appearance. Some victims recognised him from
20 before the war. Haradin Bala was involved in directly inflicting violence
21 himself and often stood guard while other KLA guards or soldiers did the
23 Isak Musliu. He was the immediate commander of those engaged in
24 the beatings and torture. He seems to have often worn a mask.
25 Nevertheless, a number of victims name him either by his real name or
1 nickname, as a particularly violent individual, who was often involved in
2 the beating of prisoners. Some prisoners will describe how they were
3 subjected to martial arts techniques, ferocious kicks and punches. These
4 accounts are linked to a degree by completely independent evidence to Isak
6 In front of you, you will see a document that was recovered from
7 Isak Musliu's house. It is a membership card of the Kosovo karate
8 federation. And on the next slide, you will see Mr. Musliu's name. The
9 next document is an extract from Mr. Musliu's police application form to
10 the Kosovo police service, where he describes himself as a first-level
11 master in karate.
12 Fatmir Limaj was often at the camp and was seen on a number of
13 occasions in amongst the prisoners. The ongoing violence and the
14 conditions would have been obvious to him. Limaj knew what was going on.
15 Indeed, he was part of it as the overall superior and approved of it. What
16 is more, with Isak Musliu in charge at Lapusnik, Fatmir Limaj was directly
17 responsible for what took place there. Of course, as I have said,
18 individuals other than Haradin Bala and Isak Musliu beat and abused the
19 prisoners. You will hear that. But that violence was simply part of a
20 system of ill-treatment of which all three accused were a part.
21 The acts of the other guards in the camp who are not here before
22 you, by virtue of the joint criminal enterprise, are the acts of Fatmir
23 Limaj, the acts of Isak Musliu, and the acts of Haradin Bala. Again, Your
24 Honours, I emphasise to the Court, and I show you a portion of the
25 pre-trial brief of Mr. Fatmir Limaj.
1 Fatmir Limaj, you will see about halfway down this extract, was
2 based in Klecka. From time to time, he would go to Lapusnik to assist
3 with various operations. He went to Lapusnik approximately 20 times
4 during this time. Now, that, Your Honours, is an admission by Fatmir
5 Limaj in his pre-trial brief. Now, his position is that he came to help
6 with ongoing military operations, and you can see that from the document.
7 Whilst he does not acknowledge being in the camp and while there are
8 witnesses who place him in the camp, it is also absolutely inconceivable
9 that he went to Lapusnik to help with military operations without being
10 aware of the camp holding all of these prisoners. The front lines at
11 Lapusnik, the area of KLA military operations, is 350 metres away from
12 this camp.
13 If I could now, please, turn to the last counts in the indictment,
14 murder, counts 7 to 10.
15 Murder is charged in counts 7 and 9, as a crime against humanity,
16 and in counts 8 and 10 as a violation of the laws and customs of war. As
17 with torture, the elements of murder are the same whether charged as a
18 crime against humanity or a violation of the laws and customs of war. The
19 only difference being, I've said it before, I know I'm repeating myself,
20 the additional general requirements of the crime against humanity. And
21 you will find at paragraphs 122 to 124 the law in respect of murder.
22 The first murder which you will find referred to in the
23 indictment, in paragraph 29, is the killing of Ajet Gashi, and you can see
24 his photograph before you. Limaj and Musliu are charged under
25 Article 7(1) and 7(3) of the Statute with the unlawful killing of this
1 individual. Ajet Gashi was a former police officer, an Albanian, who was
2 dismissed from the police and tried on political grounds by the Milosevic
3 regime. Ajet's brother, Shesat Gashi [phoen], says that in May of 1998
4 Ajet went to the KLA headquarters in Klecka. His family thought he was
5 there working for the KLA.
6 On hearing nothing from him, Ajet Gashi's mother made inquiry at
7 the KLA headquarters in Likovc. She was told not to worry. But she was,
8 so she repeated her inquiries. On her third inquiry, she was instructed
9 by at KLA soldier at Likovc not to make any more inquiries about her son.
10 While Ajet's brother believes that Ajet was kept in Lapusnik camp, you
11 will also hear direct evidence from one witness who saw him in Lapusnik
12 camp from mid-May of 1998. Ajet Gashi, like a number of other prisoners,
13 was made to write a confessional account about his life. In some
14 instances, we have those statements that were made by those prisoners at
16 Evidence will show that Gashi was kept in what I have described to
17 you as the stable, an area of the compound where animals would normally be
18 kept. He was very badly beaten, indeed. You will hear evidence of the
19 circumstances of Gashi's execution. The evidence will show that at around
20 the 10th of June of 1998, Ajet Gashi was taken from Lapusnik by a number
21 of soldiers and guards from Lapusnik camp. On the Magura road at the
22 Laletic turn-off - and I've marked that on the map for you here, Your
23 Honors. You can see the villages of Laletic and Magura marked. On the
24 Magura road at the Laletic turn-off, he was executed by automatic gunfire
25 by two KLA soldiers under the command of Isak Musliu and Fatmir Limaj.
1 The evidence will show that Ajet Gashi was murdered on military order.
2 Evidence will be led that such an order would have gone to
3 Lapusnik and would have come from Klecka, Fatmir Limaj's headquarters.
4 The corpse of Ajet Gashi was found and recovered by his family
5 near the spot where he was murdered between Magura and Laletic. Court
6 documents and newspaper articles of the time will be produced confirming
7 his murder. Here is one from "Koha Ditore" confirming a person killed at
8 the Goles Pass two days ago was identified today. Reports state that this
9 person is Ajet Kamba [phoen] Gashi from Glogovac in Malisevo. Ajet was
10 shot with five bullets in the chest. His body remained on the roadside at
11 the entrance to Magura for two days and had begun to decay, left there as
12 an example to others.
13 All of Kosovo was on notice in June of 1998 of Ajet Gashi's
14 killing. The family recovered the body and buried it in the village
15 cemetery in Glogovac. In 2003, the OTP, the Office of the Prosecutor,
16 sought permission to exhume the body from its grave site in order to
17 perform an autopsy and anthropological examination. That was duly done
18 and the findings of that examination confirm that the cause of death was
19 as a result of multiple gunshot wounds to trunk and head.
20 Now, if I could turn Your Honours' attention to murder of those
21 individuals set out in Annex 1 of the indictment. All of these men were
22 taken by the KLA between 24 June 1998 and 26 July 1998. They were all
23 imprisoned at Lapusnik and then murdered. All except one were civilians.
24 All except one a Serb.
25 As I have said, Stamen Genov, an ethnic Bulgarian and Yugoslav,
1 was serving as a sergeant medic in the VJ but off duty when arrested.
2 Fatmir Limaj and Isak Musliu are charged under both Article 7(1) and 7(3)
3 of the Statute with the murder of these eight men. Here in this
4 photograph, on the left-hand side, you see Milovan Krstic, and on the
5 right-hand side, Miodrag Krstic. In this photograph, you see Boban
6 Mitrovic. When they were murdered in 1998, Milovan Krstic, the first
7 gentleman that you saw on the left-hand side, was 28 and married with two
8 children; Miodrag Krstic was 34 and married with four children. This
9 gentleman on the screen now, Slobodan Mitrovic, was married with twins.
10 Milovan and Miodrag Krstic were brothers. Slobodan Mitrovic was
11 their cousin. The three men were good friends as well as relatives. They
12 all lived in Racak, in Suva Reka, in Kosovo. And you can see that there
13 marked on the map. They didn't actually live in Suva Reka. They lived in
14 a village near Suva Reka but it's in that area of Kosovo.
15 Prior to the war, all three had married, settled down, found jobs,
16 gone about their lives peacefully with their Albanian neighbours. Indeed,
17 Slobodan Mitrovic had many Albanian friends and spoke the language.
18 Slobodan, or Boban, as he was known had married Ljiljana in 1982, and 1991
19 the twins, Alexander and Ana, were born.
20 In mid-June of 1998, Slobodan Mitrovic was warned by an Albanian
21 friend that he should move his family, his young children, to Serbia
22 because he was in grave danger. So on the 14th of June of 1998, he moved
23 his wife, Ljiljana, and the children to relatives at Arandjelovac in
24 Serbia. He returned to Racak in Kosovo.
25 In June of 1998, Miodrag Krstic, who was the gentleman that you
1 saw on the left hand photograph, the second photograph that I showed you,
2 had been receiving urgent medical treatment in Belgrade, Serbia. On
3 June 23rd, Milovan Krstic and Slobodan Mitrovic went to Belgrade to
4 collect him and bring him back to his family in Kosovo. The two men had
5 travelled via Arandjelovac in Serbia. Whilst Slobodan Mitrovic had kept
6 in regular contact with his wife whilst they had been apart, he decided
7 that he wanted to surprise her and the children. The security situation
8 in Kosovo was now dreadful. Ljiljana, his wife, knew it and she pleaded
9 with him to stay with the family in Serbia.
10 Milovan Krstic did not want to travel back to Kosovo with his sick
11 brother alone, so against his wife's pleas, Boban went on with him to the
12 hospital in Belgrade. Ljiljana and the twins would never see Boban again.
13 Milovan Krstic and Slobodan Mitrovic stayed the night of the 23rd of June
14 of 1998 in Belgrade with relatives. Miroslav Krstic, the uncle of Milovan
15 and Miodrag, had called them that night from Kosovo and warned them of the
16 danger of travelling back to Suva Reka through Crnoljevo. You will recall
17 the location where I've already indicated the Bakracs and Djordje Cuk and
18 Stamen Genov were kidnapped by the KLA. For here there was a KLA
20 Nevertheless, the next morning, the two men collected Miodrag
21 Krstic from hospital and then the three friends started their journey back
22 to Kosovo. Not heeding the advice of their uncle, they travelled back
23 through Crnoljevo. The police confirmed that the three men crossed the
24 border into Kosovo from Serbia sometime between 3.20 and 3.30 on the
25 afternoon of the 24th of June, 1998. Sometime after this they were
1 kidnapped in Crnoljevo by the KLA and taken to Lapusnik. And I've marked
2 again for you on this map the location of Lapusnik, here, and the location
3 of Crnoljevo, the KLA checkpoint, here, and the area where the village of
4 Racak where the three men lived, is near to Suva Reka.
5 Here all three men were seen by survivors in the cell which was
6 the storage room in the camp at Lapusnik. These three men have never been
7 seen since, either in Lapusnik or having been taken from Lapusnik by
8 guards in the camp. They were murdered.
9 Your Honours, in providing you with faded glimpses of a man's
10 life, I'm not appealing to your emotions. I'm simply emphasising the
11 repercussions and the damage beyond death that these three accused have
12 caused by their acts. Ljiljana, Boban's Mitrovic's wife we'll bring to
13 the Court so she can describe her husband for you. She describes an
14 absolutely wonderful man who loved her and the children. He would always
15 call them if he was away from the family. She will describe the daily
16 battle between hope and despair that she goes through every day. She is
17 certain that if her husband were alive over six years later, he would find
18 a way to get to her and the children.
19 Of course, this man is dead. But because there is no body,
20 because his remains were almost certainly buried in secret, there is no
21 end to this matter for this family, no end for the grief for her and the
22 children. These people lead lives of suspended animation, where they can
23 neither go forward for backwards, and these proceedings may at least bring
24 closure for one family to make peace with the past and move on with the
1 The next victim is a man called Miroslav Suljnic. You see his
2 photograph here. He lived in Vidanja in Kosovo with his parents,
3 brother, and sister. He worked in a sawmill in Doberdol village. From
4 the 10th of May of 1998 to the 21st of May of 1998, he had worked solidly
5 at the sawmill and had not been home.
6 On the 21st of May, he began the journey home, sometime between
7 4.00 and 4.30. Miroslav arrived at the Serb MUP checkpoint at Komorane on
8 the Pristina-Pec road. He was warned not to continue with his journey by
9 the Serb police because he was told that the KLA had a checkpoint at
10 Lapusnik, the location of the camp, which I've already shown to you on the
12 Miroslav Suljnic had never had problems previously with his
13 Albanian neighbours, and he believed that he was going to be safe and so
14 he ignored the warning and carried on with his journey. At the
15 checkpoint, at Lapusnik, he was taken by the KLA to the camp at Lapusnik
16 where he was imprisoned. A survivor from the camp confirms his presence
17 at Lapusnik at the end of June/beginning of July of 1998.
18 The Serb security forces, when they retook this area at the end of
19 July of 1998, found the following document. On the right-hand side, you
20 can see a handwritten document, and in English, you can see the
21 translation. So the Serb security forces found this document: "I am
22 Miroslav Suljnic, born on 8 June 1996." It's written as that. "Worker by
23 profession, captured by the Kosovo Liberation Army in Lapusnik on the 21st
24 of May."
25 As I've said, Your Honours, a number of witnesses will say that
1 they were obliged to write a confessional account about their lives for
2 the purposes of interrogation by members of the KLA. Jeremija Suljnic,
3 the victim's brother, will say that this is definitely his brother's
4 handwriting. Now, while the document states that he was born in 1996, of
5 course, we know that Miroslav Suljnic in 1998 was a grown man; in fact, he
6 was born in 1969. He reversed the numbers. And in a sense, such an
7 error, in my submission, adds to the authenticity of this document. We
8 can all of us imagine somebody very frightened indeed writing this out
9 while imprisoned in Lapusnik camp.
10 The family has never seen Miroslav again, for he was murdered
11 either at Lapusnik or having been taken from Lapusnik between 24 June 1998
12 and 26 July 1998.
13 The next victim is a man who you see in front of you now by the
14 name of Zivorad Krstic. He is no relation to Milovan and Miodrag, the two
15 that I've already referred to. This man was a retired widower living in
16 Pristina in 1998. He was 68 years old. He had three daughters. His wife
17 had died when the children were young, and according to his son-in-law, he
18 had committed his life to raising his three girls. He is described by
19 witnesses as a gentle soul who was universally liked and respected by both
20 his Albanian and Serb neighbours.
21 At the time of his kidnapping, he was being treated for diabetes.
22 He had recently had eye surgery to remove cataracts from both eyes. He
23 was a sick man. On the 23rd of June of 1998, he travelled from Pristina
24 to a village outside Prizren to attend his brother's funeral. His brother
25 had recently passed away. On the 25th of June, he was put on a bus by his
1 dead brother's son, Vekmir [phoen] Krstic, to return him to Pristina. The
2 bus left at 10.00 or 11.00 in the morning. Evening came, Your Honours,
3 and Zivorad had not arrived in Pristina. Checks were made with the police
4 in Prizren and the police confirmed that the bus had been stopped by the
5 KLA in, again, the village of Crnoljevo. And you can see here, Crnoljevo,
7 Zivorad Krstic was taken from the bus by the KLA. His identity
8 card and the few belongings that he had with him were returned to the
9 family. Days later, Stojan Stojanovic, Zivorad's son-in-law, heard the
10 news that Ivan and Vojko Bakrac, the two Serbs that I referred to who were
11 released, had also been kidnapped in Crnoljevo and that they had just been
12 released by the KLA through the Red Cross. Stojan Stojanovic, the
13 victim's son-in-law, made contact with the Bakracs and he showed them a
14 photograph of his father-in-law, and they confirmed -- the Bakracs
15 confirmed that Zivorad Krstic had indeed been in the Lapusnik camp, that
16 he had introduced himself to them and told them who he was and where he
17 was from.
18 Zivorad Krstic has never been seen by his family, and it is the
19 Prosecutor's case that he was either murdered in Lapusnik or murdered
20 having been taken from Lapusnik by guards from the camp, a sick man
21 returning from his brother's funeral, murdered for being a Serb.
22 The next two victims that you can see in front of you are Stamen
23 Genov and Djordje Cuk. Stamen Genov you see to the right in a military
24 uniform. I've already stated to you that he was a medic in the VJ at the
25 time of these events. The other gentleman on the left-hand side is
1 Djordje Cuk.
2 Djordje Cuk was a young Serb born in Croatia. In 1995, his family
3 left Croatia because of the war in that region, and, as I've already
4 stated to you, along with many other Serb refugees, was relocated with his
5 parents and brother to Djakovica, in Kosovo. On the 29th of June of 1998,
6 he was travelling by bus from Djakovica to Belgrade in the same bus
7 carrying the Bakracs. The bus was stopped by KLA troops, as I've already
8 said, at Crnoljevo. Everybody's papers were checked and Djordje, along
9 with the three other men, was taken off the bus.
10 In addition, Djordje Cuk, the ethnic Bulgarian, a serving member
11 of the VJ, was removed with him. Stamen Genov, as it happens, was off
12 duty and en route to see his girlfriend in Krusevac. The Bakracs will say
13 that both Djordje and Stamen were extremely frightened. All four of the
14 victims were taken by the KLA to a school where they were all interrogated
15 about their background. Stamen Genov was quickly identified from his
16 military identification papers. He and Djordje Cuk were then severely
18 Stamen Genov was beaten until he was unconscious. Djordje Cuk was
19 also so badly beaten that when the KLA soldiers came to move the four of
20 them to Lapusnik, he could not stand on his own two feet. At Lapusnik,
21 both Genov and Cuk were both beaten. Stamen Genov was subjected to
22 particularly brutal treatment because he was a member of the Yugoslav
23 forces. Witnesses will say that Genov was so severely beaten that
24 eventually he begged his fellow prisoners to kill him.
25 At the end of July of 1998, when Serb forces overran Lapusnik,
1 copies of Genov's interrogation notes were recovered from the site, and
2 you can see those in front of you now. I'm not going to go through them
3 in detail. I don't know how well those appear on your screens, but the
4 notes begin: "My name is Stamen Genov." It says where he was born, when
5 he was born and then it proceeds to list details of the Yugoslav military
6 garrison in Djakovica.
7 It was at this same time - and if we could move to the next
8 document - that the Serb security forces in Kosovo confirmed his death.
9 And the Prosecution will produce minutes of a meeting held on the 30th of
10 July. You can see here meetings of the joint command for Kosovo. These
11 were meetings held by officials in the Serb army, the Serb police, and the
12 Serb civilian administration that was set up as a joint command to deal
13 with the crisis situation in Kosovo at the time. If we could move to the
14 next slide.
15 Here you see on the 30th of July the group discussing the fact
16 that Corporal Genov was killed, referring to Stamen Genov.
17 There's no doubt, Your Honours, from all of the accounts that you
18 will hear that this young man, a medic in the VJ, was subjected to a level
19 of brutality which frankly describes [sic] description. He died at or
20 outside Lapusnik, almost certainly bludgeoned to death. Neither Djordje
21 Cuk nor Stamen Genov have of course ever been seen again by their
22 relatives. Both men are dead, murdered by guards from the camp at
23 Lapusnik, either in Lapusnik or taken from Lapusnik.
24 Sinisa Blagojevic. You see a photograph before you here now. He
25 is the man on the right-hand side of the picture. Sinisa Blagojevic was
1 32 years old in June of 1998. He came from and lived in the village of
2 Krajiste, which is a mixed Albanian Serb village in Kosovo. He was one of
3 six children, he being the eldest and the head of the family. He was
4 married with two small children of his own. He worked for the state as a
5 forest guard or ranger at Lipovica and had an apartment in Vusevac [phoen]
6 which was provided by his employer for the purposes of his work.
7 On the 22nd of June, Sinisa was told that his apartment in Vusevac
8 had been looted and vandalised earlier in the week. Sinisa and his family
9 were told by the police that it was not safe to go there to inspect it,
10 but nevertheless they went and recovered what they could from Sinisa's
11 apartment. Sinisa kept livestock near his work apartment, and they talked
12 about taking the livestock away with them that day. They decided not to.
13 Instead, Sinisa would come back the next day. He set off on his tractor
14 the next day and was never seen again by his family. The police told his
15 brother the KLA had been active that day in Vusevac and further
16 information indicated that a KLA checkpoint had been in the village at the
18 Sinisa was in fact taken by the KLA to Lapusnik and then murdered.
19 Again, he's never been seen again since his kidnapping.
20 If I could now move, please, Your Honours, to Annex 2 of the
21 indictment. These four men were murdered in mid-July 1998 at or near the
22 Lapusnik prison camp. Just to remind you, I'm repeating what I've already
23 said in respect of these murders, Fatmir Limaj and Isak Musliu are charged
24 under Article 7(1) and 7(3) of the Statute. Isak Musliu and Haradin Bala
25 and also charged with direct participation in or aiding and abetting the
1 murder of these four individuals.
2 The two individuals on the screen in front of you, the one on the
3 left-hand side is a man called Jefta Petkovic and the younger man on the
4 right-hand side is Zvonko Marinkovic. Zvonko Marinkovic was a young Serb
5 man who lived in a village called Musutiste with his wife, Svetlana
6 Marinkovic, and their two young children aged 8 and 3 at the time of these
7 events. He shared the house with his brother and his brother's wife and
8 children. You will hear from his wife that the family was a close one
9 that enjoyed eight good years of marriage prior to his disappearance and
10 death. He worked for a company called the Balkan company.
11 Jefta Petkovic, the gentleman on the left, the left photograph,
12 from the village of Racak in Suva Reka worked with Zvonko Marinkovic as a
13 trucker driver for the Balkan company. On the 23rd of June of 1998,
14 Zvonko telephoned his wife Svetlana to tell her he was coming home from
15 Belgrade in a company truck with Jefta Petkovic that day. That is the
16 last time his wife heard from him.
17 On the 24th of June, both men were taken from the Balkan company
18 truck near the village of Crnoljevo. Again, the same location where there
19 was located a KLA checkpoint and taken to the KLA detention facility at
20 Lapusnik. They were both civilians, both Serbs.
21 Survivors from the camp identify both Zvonko and Jefta from their
22 photographs as being present in the camp, although it is often the case
23 that names were never known or were confused because prisoners were not
24 always able to speak with each other. Jefta and Zvonko suffered the
25 brutal regime that I've already described for you.
1 Prior to the evacuation of the camp at the end of July of 1998,
2 Zvonko Marinkovic and Jefta Petkovic were murdered.
3 The next two victims that you see in front of you of are Agim
4 Ademi, on the left, and Vesel Ahmeti on the right. In June of 1998, Agim
5 Ademi and Vesel Ahmeti were both kidnapped from the village of Gorance and
6 taken to the KLA detention facility at Lapusnik. Both men were chained up
7 in the cowshed and both were subjected to ferocious beatings. In the
8 middle of July, both of these men were murdered.
9 The next individual that you see in front of you is a man by the
10 name of Fehmi Xhema, also know as Fehmi Tafa. On the 13th of June 1998 a
11 man named Vebi Tafa [phoen] from the village of Crnoljevo -- and just so
12 there's no confusion, Your Honours, this is a man who is distinct from the
13 victim. This man's name is Vebi Tafa, the victim's name is Fehmi.
14 So a man named Vebi Tafa from the village of Crnoljevo had gone
15 missing from his home. So again, the same location, Crnoljevo where the
16 KLA checkpoint existed, where many of the Serbs victims were taken from
17 vehicles. The next day, the 14th of June of 1998, his brother, Fehmi
18 Tafa, the man in this photograph, went to look for him. Fehmi Tafa was
19 soon detained by two KLA soldiers from the village of Crnoljevo. He was
20 taken to the local KLA headquarters where he was tied and blindfolded and
21 placed in a car. First of all, he was taken to the village of Klecka,
22 where Fatmir Limaj's headquarters was located, and then he was driven to
23 the camp at Lapusnik. He was brought out of the car and brought into a
24 cell at Lapusnik.
25 Sometime after the 14th of July -- 14th of June, I'm sorry, of
1 1998, Haradin Bala and Isak Musliu and two other soldiers came into the
2 cell where Fehmi Tafa was being held. They told him to stand. He was
3 tied and blindfolded. The other prisoners in the room were ordered to
4 look away. The four guards, including Isak Musliu and Haradin Bala, took
5 Fehmi Tafa away. Later, Haradin Bala and Isak Musliu dragged Fehmi back
6 into the cell. He was half unconscious. He had been savagely beaten. He
7 could barely speak. He was in a terrible state from the beating. He
8 begged for water and complained of pains in his chest. One of the
9 prisoners asked Haradin Bala for some water for Fehmi. It was refused.
10 20 minutes later, Fehmi died in his filthy cell, beaten to death. Bala,
11 Haradin Bala, was informed that Fehmi was dead. The cell was guarded
12 closely for 24 hours by Bala and another guard and then the body was
13 removed by Haradin Bala and other soldiers.
14 And finally, Your Honours, if you would turn to Annex 3. I'm
15 sorry. If you have the indictment in front of you. But I will turn to
16 Annex 3, where you will find the names of ten dead. The relevant
17 paragraphs of the indictment are 34 to 37.
18 JUDGE PARKER: Judging by the time, Mr. Cayley, it's probably
19 better to break now before you start on this further group in your
20 opening. We will have the second break now, to enable the interpreters to
21 have a little rest and to enable the tapes to be changed. And we'll
22 resume, I think, at 20 minutes to 6.00.
23 MR. CAYLEY: Your Honour, if I could give you some guidance for
24 how much longer for the sake of the Defence so they know where they
25 stand. I think I will probably be about another hour, perhaps slightly
1 less an hour.
2 JUDGE PARKER: Well, I think we will not call on the Defence this
3 evening, if that's the case, just so they're not any misunderstanding.
4 --- Recess taken at 5.16 p.m.
5 --- On resuming at 5.41 p.m.
6 JUDGE PARKER: Mr. Cayley, the last person that you mentioned
7 appears not to be on Annex 2. Is that correct?
8 MR. CAYLEY: That's right, Your Honour. You'll find that
9 individual in paragraph 32 of the indictment.
10 THE INTERPRETER: Microphone, please.
11 JUDGE PARKER: Thank you.
12 THE INTERPRETER: Microphone, please.
13 MR. CAYLEY: Finally, Your Honours -- sorry, Mr. President. May I
15 Finally, Your Honours, if I could refer you to Annex 3 of the
16 indictment, where you will find the names of ten dead. The relevant
17 paragraphs in the indictment are paragraphs 34 to 37. And in respect of
18 these crimes, Fatmir Limaj and Haradin Bala only are charged under 7(1)
19 and 7(3) of the indictment. Fatmir Limaj and Haradin Bala are charged
20 under 7(1) of the Statute for planning, instigating, ordering, committing,
21 or otherwise aiding and abetting; and Fatmir Limaj only is also charged
22 under 7(3) of the Statute.
23 On the 26th of July of 1998, an offensive was launched by Serb
24 security forces in the area against the KLA stronghold at Lapusnik. We
25 know this from the prisoners in the camp who heard shooting and shelling,
1 and we also know it from Serb military documents which, if I had more
2 time, I would show you. But we will produce them in evidence. But
3 essentially, military reports from the Serbs demonstrating that there was
4 an offensive in the area of Lapusnik on the 26th of July. So essentially
5 confirming what the prisoners actually heard within the camp.
6 As the Serb advance crept forward towards Lapusnik and the prison
7 camp, Haradin Bala and another guard moved all of the remaining prisoners
8 in the camp into the central compound, and you'll see that in more detail
9 with Mr. Lehtinen's evidence when he will take you, as it were, on a
10 visual tour within the camp. We have what's called rather unfortunately a
11 virtual reality presentation of the camp which enables you to essentially
12 walk through the camp as if you were there. But you will see this
13 particular area that I'm referring to, the central compound.
14 There were 20 individuals gathered, all of them Kosovar Albanians,
15 as I've said, all of the Serbs, the remaining Serbs, were by this stage
16 dead, murdered. Bala told the prisoners that they had to leave Lapusnik
17 and that they would go towards Berisa. And you can see on the map in
18 front of you, I've shown you where Berisa was before. I've marked it
19 there again. And the mountains. Anybody trying to escape would be
20 executed on the spot. The prisoners were, as you can imagine, in
21 absolutely appalling sight. Beaten, weak, covered in their own excrement.
22 I've already mentioned to you that one prisoner, Shyqyri Zymeri, had been
23 beaten so savagely that his tibia was broken in two. He could not walk,
24 and so you will hear evidence that the other prisoners had to take turns
25 in carrying him up the hillside. This is rough terrain, Your Honours. It
1 would have been a challenge for a fit group of individuals. These people
2 were in no fit state to be walking up into the mountains above Lapusnik.
3 The prisoners walked for some time, and eventually came to a spot
4 where a forest trail crossed their path. Here you will hear evidence that
5 Fatmir Limaj arrived with an escort and spoke with Haradin Bala for a
6 number of minutes. Fatmir Limaj then departed, leaving behind him a KLA
7 soldier from his own escort who would become the third member of the
8 escort for those prisoners who were executed. The ragged group walked on
9 and stopped near a brook and some fruit trees. Bala then divided the
10 prisoners into two groups. The prisoners knew something was afoot.
11 The first group, which included over ten prisoners, was taken to
12 one side. Haradin Bala gave each of these prisoners a written authority
13 in the name of Commander Celiku, Fatmir Limaj, stating that they had been
14 released. This group then made their way to a KLA headquarters in
15 Kishna Reka which you will see marked on the map there below Lapusnik.
16 Here they were detained for a short period of time and were then
17 transferred to a location called Kroimire, which you can also see marked
18 on the map here, beneath Klecka.
19 Bala returned to the remaining prisoners, those that had not been
20 released, and called out the names of one after the other. The group was
21 marched into a clearing in the forest by Haradin Bala and two other
22 guards. You will recall the first guard who had been with Bala in the
23 compound at the Lapusnik, the third guard from Fatmir Limaj's military
24 escort. Bala was armed with an AK-47 assault rifle, as was the third
25 soldier from Limaj's group. The other guard from Lapusnik was armed with
1 a single-shot M-48 rifle.
2 The group was ordered to sit in a straight line. By now, these
3 men knew that death was very close. Bala announced that they would all be
4 punished by death, and three soldiers then opened fire, the three soldiers
5 then opened fire in a continuous volley. Two prisoners, sensing what was
6 to come, reacted very quickly and ran into the very thick forest that
7 surrounded the group. All other ten men fell to the ground in the hail of
8 gunfire or perished.
9 You will hear, as I've already told you, evidence from one of
10 these survivors, Rizah Rexhaj. His father, as I've said to you, was among
11 the dead who perished at Berisa. His body was never found, but he has
12 never been heard from since.
13 Of course, bearing in mind the posture of the Defence that these
14 events never took place, you should show that there is very strong
15 corroboration indeed of the survivors' account. First, in 2001 and 2002,
16 the execution site was established and it soon gave up the mortal remains
17 of nine individuals. DNA profiling, taking blood samples from family
18 members, and testing against bone samples has confirmed that these remains
19 belong to the individuals named in the third schedule, apart from Hetem
20 Rexhaj, Rizah Rexhaj's father, who has never been found. This is in a
21 sense not surprising. His son survived. The killers knew this and they
22 may well have moved the body to another site, sensing that the surviving
23 son might welcome back and try to recover the body.
24 Second, upon examination of the remains by a forensic pathologist
25 and forensic anthropologist, it was confirmed, in six instances, that the
1 individuals perished as a result of fatal gunshot injury.
2 In three instances the experts were either unable to establish or
3 indeed exclude death by gunshot wounds. As I've already stated, a number
4 of bodies demonstrated injuries consistent with having been severely
6 Third, cartridge cases and ammunition remnants were found at the
7 execution site, and a ballistics expert has confirmed to varying degrees
8 of certainty that the cartridges found had been fired from an AK-47
9 assault weapon, the weapon used by Bala and the third guard. The origin
10 of the ammunition was almost all from Albania itself. Evidence will be
11 led in the case that the KLA secured much of its ammunition and logistics
12 from Albania. Moreover, evidence will also be led from a Serb general
13 that the Serbs did not use Albanian ammunition for a number of very good
14 reasons, including the fact that they had plenty of their own ammunition.
15 The murdered individuals are set out in schedule 3 of the
16 indictment, and I will go through them -- I would have liked to have spent
17 more time on this, but we are running out of time and I would like to
18 finish this evening. The first victim is man by the name of Emin Emini.
19 That is his photograph. If we could move to the next one. That is Ibush
20 Hamza. That man is Hyzri Harjizi.
21 This man Shaban Hoti, Your Honours, I've already mentioned him to
22 you. He was married with two daughters and sons. As I've explained to
23 you, he was a linguist. He spoke French and Russian. He lost his job in
24 1992, during a Milosevic purge of Albanians from state positions. During
25 1998, to make money for his family, he started using his language skills
1 by working with foreign journalists in Kosovo. On the 26th of July, you
2 will hear how he was accompanying three Russian journalists when they were
3 stopped at Lapusnik, and we will bring one or two of those journalists who
4 were present at the time who will say that they were stopped at Lapusnik.
5 The journalists were detained for a short period of time and released.
6 Shaban Hoti was kept by the KLA and subsequently murdered on Berisa. His
7 family searched for him high and low after his disappearance. They even
8 approached Fatmir Limaj about his disappearance. But the fact is his body
9 was recovered from the group executed on Berisa by Haradin Bala.
10 And if we could now move to the next gentleman, Hasan Hoxha.
11 Hasan Hoxha was married with six children. He was an LDK supporter. He
12 was kidnapped in July of 1998. Again, his family searched for him. He
13 was directed to Petrastica, a village under Fatmir Limaj's command. While
14 acknowledging that Hasan Hoxha was being detained by the KLA for
15 questioning, the family, when they approached the headquarters in
16 Petrastica were turned away and told not to come back again.
17 The next individual is a man by the name of Safet Hysenaj. The
18 next is a man by the name of Bashkim Rashiti. He was married with three
19 boys and one girl. His wife believed that he was joining the KLA at
20 Krimeravac [phoen]. She even went there to try and find him and deliver
21 fresh clothes and see that he was all right. He has never been seen again
22 and indeed died on the mountain at Berisa.
23 The next gentleman is Hetem Rexhaj. That's Rizah Rexhaj's father.
24 The next individual is Lutfi Xhemshiti. Lutfi Xhemshiti, when he was
25 murdered, had been married for 11 years. He had four children; two boys
1 and two girls. His wife spent months looking for him. Again, directed to
2 the same military headquarters at Krimeravac, like Bashkim Rashiti's wife.
3 Again, no sign of the man.
4 And I think lastly is Shyqyri Zymeri, the last victim.
5 If I could now, Your Honours, move to the law and evidence in
6 respect of the responsibility of the three accused. I've mentioned some
7 of the evidence already where it was appropriate and I would now like to
8 develop that some more.
9 As to the law relevant for Article 7(1) and ordering, planning,
10 instigating or aiding and abetting, you will find that referred to in
11 paragraphs 135 to 150 of the Prosecutor's pre-trial brief. The three
12 accused again do not take issue with us on the law. On the mode of
13 committing, I'll make some comments. On the other modes, I won't. It's
14 in the pre-trial brief, and there is no dispute between the parties on the
15 law in respect of those modes of liability.
16 In respect of the modes of committing, we rely both on
17 straightforward commission of the offence, where the Prosecution must
18 prove that the accused has performed all of the elements of the actus reus
19 of the crime and that the accused has acted with the required mens rea.
20 So we rely on the simple form of committing, if I can call it that,
21 physical, personal participation in the crime alleged, together with the
22 requisite criminal intent. And of course, you can have several
23 perpetrators for the same crime where the conduct of all satisfies the
24 requirements of the offence.
25 The second mode of liability, as I've already stated, under the
1 term committing is participation by the three accused in a joint criminal
2 enterprise. I've touched on this already. Three forms of joint criminal
3 enterprise are alternatively pleaded in the indictment, all recognised by
4 the jurisprudence of this institution, all legitimate vehicles to
5 demonstrate the culpability of the three accused.
6 The interpretation by the Appeals Chamber to include this form of
7 liability recognises the original intention of the Security Council in
8 establishing this court. The jurisdictional reach of this court was not
9 to be limited only to the physical perpetrators of crimes. All who
10 participated in serious violations of international humanitarian law would
11 be brought to account. The concept of joint criminal enterprise logically
12 recognises that in wartime, crimes of this nature, which you find in this
13 indictment, are committed by groups as opposed to individuals, and acting
14 in pursuance of a common design or purpose as opposed to an individual
15 plan or motive.
16 Respectfully, Your Honours, some fundamentals, if it may be of
17 assistance to you. While it's possible for you to find that an accused
18 aided and abetted a joint criminal enterprise, it is largely the case that
19 an accused involved in a common purpose will be regarded as a
20 co-perpetrator, and I believe that the evidence in this case will show
21 that to be so. These three individuals, if they are found responsible
22 under a joint criminal enterprise, will be found to be co-perpetrators.
23 There are three basic requirements common to all forms of joint
24 criminal enterprise: A plurality of persons, one; secondly, the existence
25 of a common plan, which amounts to or involves the commission of a crime
1 provided for in the Statute; and lastly, participation of the accused in
2 the execution of the common design or plan.
3 Now, the first type of joint criminal enterprise, called basic
4 JCE, basic joint criminal enterprise, or JCE 1. Here, all the
5 participants share a common intent, but all may be -- all may not be
6 involved in the actual criminal act. An example would be where three men
7 enter into a plan to imprison, beat, torture, and kill prisoners in a
8 makeshift prison camp. While all must share the criminal intent of all of
9 the crimes, they have different roles in the design. One may be a guard.
10 One or two may be the torturers and the killers. Another may be the camp
11 commander. Another, the regional commander where the camp is located and
12 to whom the camp commander reports. But each will be liable for the parts
13 that they play, each accountable for the contribution given. The only
14 requirement is that they must intend the results of the plan. That is,
15 the sum total of the crimes within the joint criminal enterprise.
16 The second form of joint criminal enterprise, or JCE 2, as it is
17 sometimes referred to, which is pleaded in the alternative in our
18 indictment to the first form, is actually specifically formulated for
19 crimes committed in camps during wartime. It requires that each of the
20 accused have knowledge of a system of ill-treatment coupled with an intent
21 to further that common, concerted system of ill-treatment.
22 The 2001 Kvocka decision, a first-instance actually examined in
23 great detail the legal development of this concept and found the case-law
24 to demonstrate that where a detention facility was operated in such a
25 manner that the criminal intent of the operation was patently clear,
1 anyone who knowingly participated in any significant way in the operation
2 of the facility or assisted or facilitated its activity incurred
3 individual criminal responsibility for participation in the criminal
4 enterprise, either as a co-perpetrator or as an aider and abettor,
5 depending on the position that the individual occupied within the
6 organisational hierarchy and the degree of that individual's
8 Now, paragraph 306 of that judgement, Your Honours, I think
9 respectfully is helpful, and it gives a number of factors that can be used
10 to judge the level of or degree of participation of an accused in this
11 kind of joint criminal enterprise. Firstly, the size of the criminal
12 enterprise; secondly, the functions performed by the accused, his
13 position, the amount of time spent participating after acquiring knowledge
14 of the criminality of the system, efforts made by the accused to prevent
15 or impede the efficient functioning of the system, the seriousness and
16 scope of the crimes committed and the efficiency, zealousness or
17 gratuitous cruelty exhibited in performing the actor's function, direct
18 evidence of shared intent or agreement with the criminal endeavour, such
19 as repeated, continuous, or extensive participation in the system, verbal
20 expressions or physical perpetration of a crime.
21 Lastly, the role that the accused played vis-a-vis the seriousness
22 and scope of the crimes committed. Those are factors which may assist
23 you. It is important to stress that the culpable participant does not
24 need to know of every crime committed within the system of ill-treatment.
25 Knowing that these crimes are being committed, knowingly participating in
1 that system in a way that substantially assists or facilitates the
2 commission of a crime which allows the criminal enterprise to function
3 effectively or efficiently is enough to establish criminal liability.
4 Very briefly, Your Honours, the third alternative variant of the
5 joint criminal enterprise. This is the extended form of joint criminal
6 enterprise, where the objects and purpose of the enterprise is essentially
7 overshot by natural and foreseeable acts of one or more of the
9 And I think it's best demonstrated by our indictment. Here, for
10 this form of joint criminal enterprise, the Prosecutor alleges that the
11 object and purpose was to imprison, abuse, and torture Serb and Albanian
12 prisoners, and that the murders alleged in counts 7 to 10, unless proven
13 to be specifically perpetrated by one of the three accused, one or more of
14 the three accused, that they were the natural and foreseeable consequences
15 of the execution of the other three objectives of the plan, of the
16 imprisonment, of the torture. That the three accused were aware that such
17 crimes, murders were the possible outcome of the execution of the joint
18 criminal enterprise. So if it were the case that you were to find that
19 there was a joint criminal enterprise but that the evidence led you to
20 find that murder, rather than being an object of the enterprise, was a
21 natural and foreseeable consequence of the nature of the enterprise, then
22 you could convict for this third form of joint criminal enterprise as
23 opposed to the alternative first form that is pleaded.
24 One last point on this form of joint criminal enterprise. At
25 paragraphs 32 of the Musliu brief and I believe paragraph 39 of the Limaj
1 brief, they both do not accept that this extended form of joint criminal
2 enterprise existed in customary international law in 1998. And the two
3 accused cite two paragraphs, 185 to 192, of the Tadic appeals judgement in
4 support of their position.
5 Now, the Prosecution's position is that, in fact, the Appeals
6 Chamber in Tadic had specifically considered this form of joint criminal
7 enterprise, at paragraph 220, and that they found that in fact it was part
8 of customary international law in 1992. I think our position is bolstered
9 by the fact that Tadic himself was acquitted at trial of a number of
10 murders at first instance. He was subsequently convicted on appeal under
11 this extended form of joint criminal enterprise. So based on appellate
12 jurisprudence, there cannot be any suggestion that the Appeals Chamber
13 considered that this form of joint criminal enterprise, this extended
14 form, did not exist in 1998, as it had been specifically applied to crimes
15 committed in 1992. Moreover, the Tadic appeals decision has recently been
16 confirmed by the Appeals Chamber in Ojdanic, in which the Appeals Chamber
17 was unanimous again in holding that this form of joint criminal enterprise
18 was established in customary international law in 1992.
19 Very briefly, the law relevant to Article 7(3) of the Statute.
20 Only Fatmir Limaj and Isak Musliu are charged. Article 7(3) does apply to
21 an internal armed conflict, such as the conflict which existed here. The
22 law is set out in paragraphs 151 to 157 of the brief, of our brief. Only
23 one issue is raised by the accused, and that is, I think, a fact which is
24 evidential rather than legal, but I will deal with it very briefly here.
25 Both Limaj and Musliu refer to a regrettable omission in the Prosecution
1 brief, citing to the Appeals Chamber decision in Hadzihasanovic. That
2 authority states that an accused may not be charged under Article 7(3) of
3 the Statute for previous crimes committed by soldiers who subsequently
4 fell under their command. So, in other words, where a commander inherits
5 a soldier from another unit who has committed a crime in another unit, he
6 can't be held responsible for those -- the commander cannot be held
7 responsible for the crimes inherited with the soldier.
8 On reading our indictment, honour, I think you'll find it it's
9 clear that there was no need for the Prosecution to refer to such an
10 authority. We do not allege that Limaj and Musliu assumed command of
11 subordinates who had previously committed crimes. We say that they were
12 in command of individuals who were committing crimes at the time. So that
13 Limaj, Musliu, they were in command of soldiers who committing crimes at
14 the time, specifically, Haradin Bala, one of the accused here.
15 I've touched on some of the evidence linking the three accused to
16 the criminal events charged in the indictment. I'll briefly expand on it
17 to give you some further insight.
18 It's not disputed, Your Honours, by the Defence that Fatmir Limaj
19 returned from Switzerland to Kosovo in March of 1998. Fatmir Limaj
20 confirms in an interview that while in Switzerland, he was tasked with
21 certain business by the General Staff of the KLA. Further, it's not
22 disputed by the Defence that he went immediately to a place called Klecka.
23 You can see Klecka on this map. It's not marked, but I've pointed it out
24 to you a number of times before.
25 The Prosecutor will show that from here, he organised a regional
1 headquarters of the KLA for the area south of the Pristina-Peja road.
2 That area of command included many of the places where critical events
3 referred to in the indictment took place. It was also around this time
4 that he came to be known by the pseudonym of Celiku, or steel, the nom de
5 guerre that I've already mentioned to you. KLA soldiers and commanders
6 routinely adopted a nom de guerre as a personal security measure to
7 protect their families from reprisals by Serb security forces as well as
8 to generate legend about their exploits.
9 In terms of Fatmir Limaj's command, I've already stated that the
10 villages surrounding Klecka were established as what you will hear
11 referred to as points, which were effectively KLA military concentrations.
12 Each point consisted of a unit of KLA soldiers under a local KLA commander
13 who was, in turn, under Fatmir Limaj's command. For example, the unit
14 here at Lapusnik, as I've already said to you, was known as Celiku 3.
15 Points were organised in a number of villages, including Kroimire, here,
16 Luznica, Kisna Reka, here, Fustica, Trpeza, Javor which is not marked
17 on -- oh, yes, Javor is marked on the map, Crnoljevo where you will recall
18 a significant number of the victims were kidnapped, Zborce, and Rasinovac.
19 These villages were under Fatmir Limaj's command. You will hear evidence
20 that Fatmir Limaj regularly met with his point commanders in Klecka. So
21 the commanders of these areas of KLA military concentration. They would
22 report on events in their area of operations and he would issue orders.
23 Fatmir Limaj was recognised as the commander by his subordinates. You
24 will hear evidence from a number of sources to this effect. And his
25 orders, Your Honours, were followed.
1 Limaj communicated with his subordinates by messenger or courier.
2 This is a fact confirmed and admitted to by Haradin Bala in his pre-trial
3 brief at paragraph 13, that the KLA used couriers to communicate between
5 As time went on, increasingly radio transmitters were used by the
6 KLA to communicate between units. The position of Fatmir Limaj in his
7 pre-trial brief is that the Prosecution grossly exaggerates the extent of
8 the organisation, of the military organisation of the KLA during the
9 relevant period.
10 First, Your Honours, in order for liability to attach, as I've
11 already stated - and it applies as much to this principle as it does to
12 armed conflict - it's not necessary for the Prosecution to prove a level
13 sophistication and organisation within the KLA at the relevant time which
14 equates to a modern sophisticated army. It's fair to say that between
15 April and July of 1998, the KLA had a rudimentary military structure which
16 functioned. Secondly, in this case, the three accused were either
17 constantly or, in fact, to be fair, in Limaj's case, regularly at the
18 scene of the ongoing crimes.
19 Fatmir Limaj paints a picture of his command authority in his
20 pre-trial brief which, frankly, lacks credibility. He states that between
21 March and July of 1998, he was responsible for organising men but he had
22 no power over them; that during the period of the indictment, he was
23 training members of the KLA, attacking Serb forces, defending Kosovar
24 Albanian villages, but he had no de jure or de facto authority over
25 anyone. He could encourage members of the KLA and make organisational
1 suggestions, just like a military commander, Your Honours, but he says
2 that he had no authority over any soldier until immediately after the end
3 of the time period of the indictment, in August of 1998. At this stage,
4 he's suddenly clothed with military authority. This is, in fact, when
5 forces, existing forces under his command, were re-designated as the 121st
6 Brigade of the KLA, so broadly the same soldiers, the same subordinates,
7 including Isak Musliu, who actually became the deputy commander of the
8 121st Brigade, under Limaj, in August of 1998.
9 The fact is, Your Honours, respectfully, you must look to the
10 substance of matters rather than the form. Whilst there may have been
11 some structural changes, simply because an organisation, a military
12 organisation, changes its name from Celiku's Units to the 121st Brigade
13 does not suddenly overnight change the existing legal and factual
14 responsibilities and relationships between a commander and his
15 subordinates and vice versa. Common sense dictates this.
16 The evidence will show in this case that Fatmir Limaj did have the
17 necessary de facto authority at least over members of the KLA in Lapusnik
18 and other areas at the relevant time. Members of the KLA will state that
19 Fatmir Limaj had authority and that there was a basic organisational
20 structure. Surviving victims will say that that was their impression of
21 matters in Lapusnik camp. Serb Security Service members will say, and
22 independent members of the international community will say; most of all,
23 and I will remind you what Fatmir said on the 14th of June of 1998, and
24 I've already shown you. He didn't say it on the 14th of June - I'm
25 sorry - but he was referring to the period of June of 1998. He was
1 referring to the organisational structure of the KLA in June. If we could
2 play that video again.
3 [Videotape played]
4 MR. CAYLEY: The KLA point, or stronghold, at Lapusnik, where the
5 detention facility was located, was established following fighting with
6 Serb security forces on the 9th of May of 1998. Fatmir Limaj designated
7 this point as Celiku 3 and he placed Isak Musliu in charge. Naturally,
8 this is disputed by the Defence. However, Mr. Musliu acknowledges in his
9 pre-trial brief that he was the coordinator or organiser in Lapusnik but
10 not the local commander. Mr. Bala states in his pre-trial brief that his
11 understanding was that Mr. Musliu was the unit leader in Lapusnik from
12 shortly after 8th May, 1998. Indeed, in Mr. Musliu's application form for
13 the Kosovo Police Service, he states that he was employed by the KLA from
14 1996 and that he was in the Celiku Unit and also the 121st Brigade and
15 that Fatmir Limaj was his commanding officer. And if we could show that
16 document. You can see it here, an extract from Mr. Musliu's police
17 application, where he states his employment from November 1996, Kosovo
18 Liberation Army. First of all, Celiku Unit, becoming the 121st Brigade,
19 based in Klecka; subsequently, commander of military police in the
20 Nerodimlje operational zone; subsequently, coordinator for the formation
21 of Kosovo police. Commander Fatmir Limaj.
22 There is no qualification in that document by Mr. Musliu that
23 between May and July of 1998, that somehow he and Mr. Limaj were
24 colleagues of equal stature who coordinated until, suddenly, in August of
25 1998, he and Mr. Limaj were transformed overnight into the commander and
1 deputy commander of the 121st Brigade.
2 Mr. Musliu acknowledged when he was arrested that his nickname was
3 in fact Qerqiz, and that nickname will come up a lot in this trial. As
4 the existence of the camp itself in Lapusnik, Mr. Musliu admits in his
5 pre-trial brief that he was present in Lapusnik, based in Lapusnik, from
6 May to July of 1998. As I've already stated, Mr. Limaj admits in his
7 pre-trial brief that between May and July of 1998, he visited Lapusnik,
8 the village where the KLA detention facility which is the subject of this
9 indictment was located, approximately 20 times. Mr. Musliu confirms in
10 his pre-trial brief that indeed Mr. Limaj visited Lapusnik about 20 times
11 in this period. So he corroborates his commander on this point.
12 But both Limaj and Musliu state that there was no camp in
13 Lapusnik, no prisoners, no beatings, no torture, and no dead attributable
14 to them. Indeed, you will see here, on the 27th of February of 2004, when
15 the three accused were pleading to the second amended indictment. And if
16 we could play this short video clip. Judge Orie is reading the charges.
17 [Videotape played]
18 "JUDGE ORIE: Count 5, which reads: 'Inhumane acts, a crime
19 against humanity, punishable under Article 5(1), 7(1), and 7(3) of the
20 Statute of the Tribunal.' How do you plead to count 5?
21 THE ACCUSED LIMAJ: [Interpretation] We've already declared our
22 plea even earlier, and even now we do not accept that. Let's say me
23 personally, I do not accept that such a camp has existed, and as a
24 result --
25 JUDGE ORIE: Mr. Limaj, let me stop you."
1 MR. CAYLEY: So Mr. Limaj has made it very clear that all of the
2 events about which I am speaking to you today are complete fantasy.
3 Let me say this, Your Honours, on behalf of the victims of the
4 Lapusnik camp in respect of what Mr. Limaj stated at that hearing and what
5 has been made clear by the Defence.
6 The evidence in this case will do much more than establish that
7 there was a camp at Lapusnik. It will also establish that Fatmir Limaj is
8 responsible for the horrors that took place there. As I have said before,
9 I would ask you to have this defence at the forefront of your mind
10 throughout this trial, throughout the evidence. When you hear the
11 Prosecutor's examination of a witness, when you hear the cross-examination
12 by the Defence, think of this defence: no camp, no prisoners, no victims,
13 no dead. Of course the Prosecutor's position is that this is wholly
14 untrue, but the very nature of their defence and their admission of their
15 presence in Lapusnik frankly leaves for no other defence. I leave it to
16 the evidence to expose that to you.
17 What is a fact is that from early January of 1998, a steady stream
18 of Serbs and Albanians started to disappear across Kosovo. Many of them
19 were taken by certain elements within the KLA. Lapusnik detention
20 facility was a holding place for such people. Men were arrested and taken
21 to this place over a three-month period. The kidnapping, the
22 transportation to this central camp was coordinated and it went on for a
23 long time it. Any civilised human being with a thread of moral conscience
24 who entered that dreadful place in the summer of 1998 knew that the
25 operation of the camp was patently illegal: men shackled to the floor,
1 beaten, injured for sport, hungry, thirsty in the summer heat, stripped of
2 all faith and feeling. Fatmir Limaj knew what was being done to the
3 prisoners by his men. Of course he did. He was among the prisoners on
4 his 20 visits to Lapusnik. He saw with his own eyes what I've tried to
5 describe for you. He commanded those who brought the victims to Lapusnik.
6 He commanded those who put the key in the lock. He commanded those who
7 engaged in gratuitous and brutal violence. He commanded those who did the
8 killing. He knew that this was a merciless and violent regime, and you
9 will hear evidence that it was he who had the authority to release
10 prisoners from Lapusnik, the power to decide on a man's fate, in many
11 instances in this case, the power of life or death.
12 Fatmir Limaj personally swore a number of survivors upon their
13 release to silence on pain of death, that everything they'd experienced,
14 everything they had suffered, would never be revealed by them. Why? To
15 cover his guilt for these crimes. Fatmir Limaj, Commander Celiku, knew
16 then and he knows now as he sits here before you what took place at
17 Lapusnik during those three months because he willed it to take place. He
18 caused it and he's legally responsible for it.
19 Later in 1998, Fatmir Limaj admitted to members of the
20 international community, when challenged, that the KLA was detaining
21 civilians. In the particular instance, two Serb journalists detained by
22 the KLA for breaching KLA regulations. These two men had been sentenced
23 two prison terms without ever being present at their own trials. They had
24 no access to lawyers, visits from the international community were
25 forbidden, their location, like those at the Lapusnik camp, was a secret.
1 The execution of the final group of ten prisoners on Berisa at the
2 end of July 1998 was a crime in which Fatmir Limaj was not only aware of
3 but in which I have stated to you the evidence will show he directly
4 participated. He met the detainees and Haradin Bala as they walked to
5 execution or release. He spoke with Bala. He issued orders. Bala
6 released one group, the other group he marched to a clearing and with one
7 of Limaj's soldiers and another guard, executed ten men by firing-squad,
8 stating to them that they had been condemned to death.
9 The KLA assured the international community, time and time again,
10 of their commitment to the Geneva Conventions, and it's fair to say that
11 many honourable combatants within the KLA tried hard in the face of
12 extreme provocation to comply with international humanitarian law. But
13 what happened at Lapusnik was a flagrant disregard of even the lowest
14 standards of humanity. Fatmir Limaj told members of the international
15 community that he complied with international humanitarian law, that he
16 disciplined soldiers under his command, and you'll hear of specific
17 examples of Limaj punishing soldiers, but you will not hear of any of the
18 crimes that were committed in Lapusnik being investigated or punished by
19 Limaj or anyone else.
20 If I could just show one video clip about Fatmir Limaj's views on
22 [Videotape played]
23 MR. CAYLEY: So, Your Honours, Mr. Limaj was a fanatic for order
24 and discipline. But you will not find that any of the soldiers who
25 committed crimes at Lapusnik were disciplined, none. Indeed, you will
1 find that Isak Musliu was promoted after the events in Lapusnik, first to
2 Limaj's deputy within the 121st Brigade, and subsequently to commander of
3 the military police in another operational zone of the KLA. So he was
4 rewarded for the way that he ran Lapusnik camp, rather than punished. And
5 with the articulated defence of the accused, no camp, no imprisonment, no
6 torture, no dead, we do not expect any evidence whatsoever to be offered
7 before this court of the investigation or punishment of crimes in
9 Isak Musliu, Qerqiz, commanded the soldiers at the Lapusnik point
10 from May 1998 until July 1998. He reported directly to Fatmir Limaj. He
11 controlled access in and out of the prison camp. He gave orders inside
12 the camp to the soldiers. He gave orders to blindfold, to move, to beat
13 the prisoners. As he admits himself, he was based at Lapusnik. The
14 evidence will show that he was in the camp on a regular basis. He was an
15 efficient and zealous commander, and there is no doubt that this man
16 enjoyed the infliction of gratuitous and brutal violence. As I've stated
17 already, he is a keen martial arts practitioner, and he used both these
18 skills and various other instruments of torture to attack and terrify the
19 prisoners. Prisoners were made to feel absolutely worthless, witnessing
20 senseless butchery on a daily basis, believing their lives were dependent
21 on an individual like Isak Musliu.
22 A number of prisoners, Your Honours, were so badly beaten that
23 their supreme desire was a speedy and painless death. I would remind Your
24 Honours of the forensic evidence in this case, which shows a community of
25 prisoners with absolutely appalling injuries.
1 Isak Musliu personally participated in the murder of a number of
2 the inmates. He ran the camp on behalf of Fatmir Limaj. And the criminal
3 regime for which Isak Musliu was responsible for supervising is Fatmir
4 Limaj's regime also. Musliu commanded the soldiers who operated the camp.
5 He was in the camp from May to July of 1998. He did nothing to prevent
6 the criminality in the camp. On the contrary; by virtue of his own
7 murderous and brutal example, he encouraged atrocities and can be credited
8 with repeated, continuous, extensive, and significant participation in
9 this terrible criminal endeavour.
10 Bearing in mind the nature of his defence, which is a mirror image
11 of his co-accused, Fatmir Limaj, no camp, no prisoners, no torture, no
12 dead, it hardly needs to be stated that he neither prevented nor punished
13 any of his subordinates for the events which took place in Lapusnik.
14 Haradin Bala, known as Shala, was a guard at Lapusnik. Musliu was
15 his commander in the camp. It seems that there were two men known as
16 Shala in Lapusnik. You can see the photograph of the other one here.
17 This man, his real name is Ruzhdi Karpuzi and you can see he is physically
18 distinct from Haradin Bala. This man had duties outside the detention
19 facility. So when prisoners are referring to Shala being a guard in the
20 camp, they are referring to Haradin Bala and not this man, Ruzhdi Karpuzi.
21 In his pre-trial brief Haradin Bala confirms that Isak Musliu was
22 the unit leader of Celiku 3, the KLA force in Lapusnik of which he,
23 Haradin Bala, was a part. While working as a guard at Lapusnik camp, Bala
24 work a black uniform. He had the classic role of a camp guard. He
25 guarded the entrance to the camp, he locked and unlocked the doors of the
1 areas of detention. On their arrival, he would take the prisoners to
2 their cells, he would shackle the prisoners down. Bala beat the prisoners
3 and often provided the security for others while they engaged in beatings.
4 It was often the case that prisoners were literally tied down like animals
5 and then blindfolded before being beaten. Bala was the one who tied and
6 blindfolded them, preparing them for the violence to come. In this
7 environment, he threatened the prisoners, adding to and enhancing the fear
8 and robbing individuals of any sense of hope.
9 The evidence that I've already referred to will show his personal
10 involvement in a considerable number of murders in this case.
11 I will, for completeness, mention it again, but I would remind you
12 that on the 26th of July of 1998, it was Haradin Bala who took over 20
13 prisoners into the mountains above Lapusnik, to Berisa, where, on Limaj's
14 orders, he released a number and then executed ten other prisoners. While
15 Limaj bears responsibility for this act, Bala's culpability is
16 straightforward on the evidence that I've outlined for you.
17 I have already outlined the nature of his defence. It's that of a
18 partial alibi and also now it seems within the latest 92 bis filing of the
19 Defence, he also completely denies the existence of the camp.
20 I'm almost completed, Your Honour. I suspect I'll be another
21 three or four minutes. I've spent some considerable time outlining the
22 evidence and the law in this case. That is required of me under the
23 Rules. It is fair to say that almost all of the cases that reach the
24 Chambers of this Tribunal concern the deeds and acts of men that we would
25 rather not believe. That is the nature of our business. The single
1 factor which distinguishes cases within this Tribunal is proportion: How
2 many dead, how much torture, how much suffering, how much killing. But
3 all cases heard within this Tribunal make daily domestic crime pale into
4 insignificance. Here we have over 20 dead and tens of injured and many
5 ruined lives and families. By any civilised standards, a catastrophe. We
6 will never address every crime committed by every party in this war. That
7 was never envisaged by the Security Council when this Tribunal was
8 established. But never let it be said that certain groups were placed
9 above the law by the Office of the Prosecutor.
10 The Defence of Limaj and Musliu berate the Prosecutor in their
11 pre-trial briefs for bringing this indictment at all, that by doing so we
12 revise history, by suggesting that the most serious and widespread crimes
13 in 1998 were committed by the Kosovo Liberation Army. First, Your
14 Honours, let me make it abundantly clear that that is not what we saw at
15 all. As I have already set out for you, the Prosecutor does not dispute
16 that widespread human rights violations were committed during this period
17 by Serb security forces. These violations culminated in the appalling
18 events that have unfolded from January to June of 1999 and for which
19 Slobodan Milosevic is currently standing trial, and for which Colonel
20 General Pavkovic, Colonel General Lazarevic, Colonel General Djordjevic,
21 Colonel General Lukic, Milan Milutinovic, Nikola Sainovic, Colonel General
22 Drago Ojdanic and Vlako [phoen] Stojakovic stand accused.
23 As to events in 1998, witnesses may give evidence before this
24 court of Serb crimes in this period but that justifies absolutely nothing
25 at Lapusnik. The unlawful imprisonment, torture, and murder of all of
1 these innocent people at Lapusnik was not impelled by the needs or
2 necessities of warfare, and the long shadow of Milosevic's crimes in
3 Kosovo do not purge these three accused of their responsibility for what
4 happened at Lapusnik. That is basic morality and that is the law.
5 The foundations of this institution rest upon traditional
6 principles of morality, justice, and the law, accumulated by civilisation
7 over the course of the centuries. It recognises -- those principles
8 recognise and reaffirm our faith in the dignity and worth of each of us.
9 The acceptance that warfare is a pitiful business, but the aspiration,
10 backed by legal compulsion, that those who are outside the combat - be
11 they soldiers, be they civilians - should be treated with compassion and
12 mercy. And the law recognises that these fundamental safeguards are
13 universal, that they be applied to all victims of war, regardless of
14 gender, ethnicity, or colour, regardless of who the perpetrators are,
15 equal and exact justice to all men. I speak of the victims, but these
16 words of Jefferson should be a source of great hope to the accused too.
17 They can expect this trial to be fair. They are guaranteed all the rights
18 and dignities which flow from the Statute of this Tribunal. They can look
19 to the Bench of this Honourable Court as guardians of the integrity of
20 these proceedings. They are very well defended, as they should be.
21 As the Defence state in their pre-trial briefs, the burden, the
22 legal burden, rests upon us, the Prosecution, to prove these appalling
23 events and the accuseds' involvement in them. You must be satisfied of
24 the guilt of the accused in respect of each charge beyond a reasonable
25 doubt. That is Rule 87 and that is the golden thread, a safeguard which
1 all three accused must enjoy. I will not expand on what it means. In my
2 home jurisdiction, such explanation often causes problems for judges and
3 counsel alike. As it is, you are professional Judges. I do not need to
4 explain to you what it means. You know much better than I what it means.
5 You are finders of fact and law. It only needs for me to say that the
6 Prosecution will discharge the legal burden in this case.
7 Kosovo today is a partitioned society. Long years of repression
8 and division, and this most recent war, Your Honours, has left very deep
9 scars indeed. People are grieving, angry, and bitter on both sides of the
10 ethnic divide. But in this indictment you will find Serb victims and you
11 will find Albanian victims. The sons and fathers of both communities, a
12 common sorrow, a shared anguish which could be a bridge of reconciliation
13 between the two communities. After all, one of the principal purposes for
14 which this institution was established by its founding fathers was to try
15 and create reconciliation within the region. So a belief once again
16 amongst these people that their neighbours are indeed like them.
17 What men do in warfare for good or ill lasts a relatively brief
18 period, but it is those acts which affect the whole character of the peace
19 which lasts a much longer period. Unless the criminal acts of warfare are
20 honestly and openly addressed, however difficult that may be, they leave a
21 bitter and violent legacy. The capacity and willingness of a people to
22 confront the terrible crimes of a very few amongst them is a sure sign of
23 national maturity and progress.
24 Sylejman Selimi, a Kosovar Albanian and highly respected military
25 commander in Kosovo today said this about war crimes generally: "Every
1 democratic country should come to terms with people who committed crimes
2 during war, even countries that have perfected the system, the democratic
3 systems still have problems, let alone us starting out without any
4 experience. And of course there is no one above the law. People may do
5 things in the euphoria of the moment and then afterwards they have to take
7 Your Honours, I'm complete. I must now let the evidence speak.
8 In closing, I would only say to you it is my firm and honest belief that
9 if the evidence in this case is freely and fairly heard it will prove
10 these men for what they are, murderers and torturers. That is what the
11 Prosecutor asserts. That is what the evidence will show, and that, most
12 respectfully, Your Honours, is what the law will require you to find in
13 this case.
14 Thank you.
15 JUDGE PARKER: Thank you, Mr. Cayley, for that careful opening.
16 As counsel will have noted, because of the need for this trial to
17 be translated into a fourth language, and therefore the need for
18 additional space for interpreters, we have very limited facilities in
19 which to conduct this trial and must share this courtroom with another
20 trial that is being conducted. The inconvenience of that to all is
21 regretted, but it is a reality we all have to deal with. In immediate
22 effect is that we will continue tomorrow morning at 9.00, to finish by
23 1.45, because the courtroom is needed in the afternoon for other purposes.
24 But at present we expect for the remainder of the week to continue in the
25 afternoon session, that is, Wednesday, Thursday, Friday, 2.15 for 7.00 in
1 the evening.
2 So we will now adjourn until tomorrow morning at 9.00.
3 --- Whereupon the hearing adjourned at 6.45 p.m.,
4 to be reconvened on Tuesday, the 16th day of
5 November, 2004, at 9.00 a.m.