Tribunal Criminal Tribunal for the Former Yugoslavia

Page 7340

 1                           Tuesday, 30 August 2005

 2                           [Prosecution Closing Statement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.18 p.m.

 6             JUDGE PARKER:  Mr. Nicholls.

 7             MR. NICHOLLS:  Thank you, Your Honours.

 8             I finished yesterday talking about KVM's report, Kosovo "As Seen,

 9     As Told", which concluded that one of the main threats to the Serb

10     community was the UCK, the KLA.  Similarly, ECMM and KDOM mobile teams

11     operating during the indictment period on the ground documented instances

12     of KLA abductions, including victims in our case both Albanians and

13     Serbs.  For example, ECMM reported on the kidnapping of Shaban Hoti in

14     their report of 26 to -- the 20th to the 26th of July, 1998.  And that's

15     included in the annexes to P230.

16             I previously referred to the 29th of June ECMM report which

17     documented the kidnappings of Ivan and Vojko Bakrac, Stamen Genov and

18     Djordje Cuk.  Let me here correct a mistake in the Defence brief.  This

19     is at paragraph 167 where it states that Djordje Cuk was a serving member

20     of the VJ.  That's not true.  Stamen Genov is the only victim in this

21     case who was a member of the VJ.  The only cite in support for that

22     clearly false statement in the Defence briefs is transcript page 317.

23             Your Honours, if you take a look at pages 316 to 317, I think

24     you'll see that there's no support there for the proposition that Cuk was

25     a VJ member.  At the time he was kidnapped, Djordje Cuk was a Serb

Page 7341

 1     refugee.  That's shown by P181, the 92 bis statement of his surviving

 2     brother, another refugee.  And Vojko Bakrac testified that Djordje Cuk,

 3     to his knowledge, was a refugee and was not a member of any armed group

 4     or police or military.  That's at page 1296.

 5             Fatmir Limaj here in his testimony admitted to KLA crimes

 6     committed against civilians.  One of the most notorious instances of KLA

 7     attacks on civilians is the kidnapping and killing of civilians in

 8     Rahovec.  Approximately 85 civilians were kidnapped in July 1998.  That's

 9     documented in the Human Rights Watch report in evidence at P212, tab 5.

10     Susan Ringaard Pedersen's testimony corroborates those findings from

11     Human Rights Watch.  She testified that women from Rahovec came and

12     reported that their husbands, their sons had been taken by the KLA and

13     had never been returned.

14             Mr. Limaj accepted before you that Rahovec was a black stain on

15     the KLA, not just because of the losses suffered by KLA soldiers but

16     because of the killings and kidnappings of Serb civilians.

17             I'll talk just for a moment now about crimes against Albanian

18     civilians.  Mr. Whiting's talked about this as well as Mr. Black, so I

19     won't spend much time.

20             Beginning in 1997, the General Staff of the KLA repeatedly stated

21     in official communiques that it was targeting so-called collaborators for

22     death.  I won't go through those communiques.  They're referenced in

23     paragraph 166 of our brief in the footnotes to that paragraph.

24             Mr. Whiting has described to you and the evidence has shown that

25     the barest allegation and the complete lack of any form of hearing or due

Page 7342

 1     process led to the murders of Albanian civilians.

 2             Jakup Krasniqi, the spokesman for the KLA, admitted that they had

 3     executed collaborators exactly as claimed in the communiques which he

 4     authenticated.  Krasniqi stated that these men were not tried in courts

 5     but that "they were executed or killed" by the KLA in the field at the

 6     discretion of local commanders.  And again, specific murders referenced

 7     in those communiques he confirmed had in fact taken place.

 8             In their brief beginning at paragraph 375, the Defence concede

 9     that there is no requirement or element of the existence of a plan or

10     policy for crimes against humanity.  However, as far as the existence of

11     a policy is evidence of systematic attack, plainly here there was such a

12     policy.

13             As Mr. Whiting said yesterday, Limaj himself has testified that

14     the KLA had a policy of targeting people suspected of collaboration.  In

15     addition to Mr. Krasniqi and Mr. Limaj's admissions, there is the

16     evidence of KLA crimes committed against Albanian civilians which are

17     strikingly similar to the crimes committed in the Lapusnik prison. I

18     point you to the testimony of Witness L95.  He spoke about the detention

19     and murder of collaborators on the flimsiest of pretexts took place

20     during our indictment period at a different location.  That's at 4247 to

21     4258 of the record.

22             I'm just about done, Your Honours, and I conclude by remembering

23     the view of the ICRC, that the protections of Common Article 3 should be

24     applied as widely as possible to protect the victims of armed conflicts.

25     The Defence has argued here and will argue that there was no armed

Page 7343

 1     conflict.  Therefore, the jurisdictional element of the Tribunal has not

 2     been met and the perpetrators on both sides, therefore, should be able to

 3     escape with impunity from the crimes they've committed.  This is a sort

 4     of recurrent theme for the Defence.  No camp, no General Staff, no armed

 5     conflict even in the face of overwhelming evidence to the contrary.

 6     Violent armed confrontations proven in this trial weren't terrorist acts

 7     or weren't acts of banditry.  This wasn't a short-lived or unorganised

 8     insurrection.  We've seen an intense, prolonged armed conflict in which

 9     civilians on both sides paid a heavy price.  I'm sure you'll find that

10     those victims are due the protections of international law.

11             I'll give the floor back to Mr. Whiting.

12             JUDGE PARKER:  Thank you very much, Mr. Nicholls.

13             Yes, Mr. Whiting.

14             MR. WHITING:  Thank you, Your Honour.  May it please Your

15     Honours, I will now briefly address the Chamber on the issue of

16     sentencing.

17             A strong argument could be made that all accused convicted of the

18     types of crimes charged against these three accused should receive a

19     sentence of life in prison.  Certainly in most jurisdictions, most

20     domestic jurisdictions around the world, this would be the case.

21     However, that is not the jurisprudence of the Tribunal, which has

22     established an internal scale as well as internal guidelines to evaluate

23     sentences in war crime cases.

24             Article 24 of the Statute and Rule 101 of the Rules govern

25     sentencing.  The first factor to consider requires the Chamber to take

Page 7344

 1     into account the general practice regarding prison sentences in the

 2     courts of the former Yugoslavia, though the law is clear that the Chamber

 3     is not bound by this practice and can impose a higher sentence.  This

 4     particular factor was considered by this Chamber in the Strugar

 5     judgement, and I shall not dwell on it.  In the submission of the

 6     Prosecution, under Articles 142, 148, and 38 of the SFRY Code, the

 7     sentencing range for the crimes charged in this case would be between

 8     five and 20 years in the former Yugoslavia.

 9             The gravity of the offence is the next factor to consider, and

10     the Appeals Chamber has held that it is the primary consideration in

11     imposing sentence.  In this case, the accused bear the responsibility for

12     the operation, over a nearly two-month period, of an extremely brutal and

13     vicious prison camp where prisoners were subjected to inhumane

14     conditions, mistreatment, beatings, torture, and murder.  The only reason

15     the prison was shut down, we submit, was that the Serbian forces overran

16     Lapusnik at the end of July 1998.  The evidence has proven that at least

17     23 men were murdered in connection with the prison camp in Lapusnik.

18             In evaluating the seriousness of this case, it would be a

19     mistake, in the Prosecution's submission, simply to compare the crime

20     base of this case with the crime bases of other cases.  The crime base in

21     this case must be evaluated in context, in the context of the war that

22     was then going on in Kosovo and in the context of the strength and

23     development of the KLA.

24             In addition, there are a number of aggravating circumstances to

25     consider.  The Appeals Chamber listed some potential aggravating

Page 7345

 1     circumstances in the Blaskic appeal judgement at paragraph 686 and a

 2     number imply in this case:  discriminatory intent, which can be an

 3     aggravating factor when discriminatory intent is not an element of the

 4     crime; length of time during which the crime continued; active and direct

 5     criminal participation; premeditation; the violent and humiliating nature

 6     of the acts and the vulnerability of the victims; the status of the

 7     victims, including youthful age, number, and the effect of the crimes on

 8     them; civilian detainees; character of the accused, which includes

 9     remorse or lack of remorse; and circumstances of the offences generally.

10             First, with respect to discriminatory intent.  The crimes

11     committed against the Serb victims were plainly committed with

12     discriminatory intent.  The Serbs were singled out for mistreatment and

13     murder simply because they were Serb.  It can also be argued that the

14     crimes committed against the Albanian victims were also committed with

15     discriminatory intent because the Albanians were targeted solely because

16     of their association with Serbs.

17             Second, the crimes in this case, we submit, were ongoing,

18     premeditated, and organised, and they were extraordinarily violent and

19     humiliating.

20             Third, the Prosecution submits that many of the victims in this

21     case were in fact vulnerable.  Some of the victims were vulnerable

22     because of personal circumstances such as age or infirmity.  In addition,

23     the Prosecution submits that the Albanian victims in this case were also

24     particularly vulnerable.  Ordinarily in a conflict victims of war crimes

25     have at the very least a state or a military force that will, if

Page 7346

 1     possible, fight on their behalf or attempt to obtain their release if

 2     they are being detained unlawfully.  In this case, however, the Albanian

 3     victims had nobody.  They were victimised by their own army, and were

 4     therefore particularly vulnerable.

 5             Fourth, another aggravating factor is the fact that all three

 6     accused have lied about the existence of the camp in Lapusnik and their

 7     roles in the camp.  The cover-up of the camp began was the camp was still

 8     operating.  The evidence shows that the victims who were released were

 9     required to swear not to reveal what had happened in Lapusnik.  During

10     the investigation of this case, Isak Musliu was interviewed and denied

11     the existence of a camp in Lapusnik.  This factor is particularly

12     aggravating, however, for Fatmir Limaj, who testified during trial and

13     denied the existence of the camp in Lapusnik and his role in it.  And for

14     Haradin Bala, who made a statement during trial denying that in his

15     belief anybody in the KLA could ever commit the crimes charged here, and

16     of course denying his own role in the crimes.  Neither one was required

17     to say something in this trial, to say anything in this trial, and both

18     could have remained silent.  They chose, however, to speak, and in our

19     submission sought to mislead the Court with their words.  In the final

20     brief, as Mr. Black has already pointed out, the Defence does not just

21     deny the existence of the camp at Lapusnik but the existence of any such

22     camp, stating in paragraph 178 that "It is plain that the KLA would have

23     lacked the ability to run any prison camp."

24             Another aggravating factor with respect to Fatmir Limaj in

25     particular and also to Isak Musliu is their positions of authority which

Page 7347

 1     were abused by their participation in the operation of the prison at

 2     Lapusnik.

 3             Finally, the Chamber should consider the effect on the victims

 4     and the relatives of the victims.  This Chamber has heard from survivors

 5     of the camp as well as from family members of victims who were killed.

 6     It is clear that the survivors of the camp are to this day traumatised

 7     and continue to suffer both physical and psychological pain, and are in

 8     many cases destroyed by what happened to them.  There are families all

 9     over Kosovo and elsewhere who suffer every day because of what happened

10     at Lapusnik.

11             Are there mitigating factors?  Fatmir Limaj suggests that he

12     expressed remorse for the victims in his opening statement of the trial,

13     pointing in paragraph 415 of their brief to just two sentences of that

14     lengthy opening.  The Prosecution submits that these tepid sentences fail

15     to express any genuine remorse for the victims, and in fact are more

16     focused on shifting blame to others.  In Limaj's testimony in court, he

17     said nothing about the victims in this case.

18             Fatmir Limaj also suggests in his final brief that he acted

19     responsibly as commander of the 121 Brigade with respect to the murders

20     of Selman Binici and Ramiz Hoxha and the detention of the Serbian

21     journalists.  This is, in our submission, an extraordinary claim, for the

22     Prosecution submits that the evidence shows just the opposite.  Mr. Limaj

23     tried to justify the Binici and Hoxha murders here in court with an

24     obviously false story, and he admitted he did no investigation into the

25     murders even though he was the commander of the area.  With respect to

Page 7348

 1     the journalists, Mr. Limaj admit that had they were not given a trial as

 2     was represented to Human Rights Watch and that they were held for a month

 3     and a half, we submit, for no good reason.

 4             Both Fatmir Limaj and Isak Musliu also point to actions that they

 5     have taken since the war.  In the respectful submission of the

 6     Prosecution, we say that these factors should not be considered as

 7     mitigating in this case.  Following the war, Kosovo has been run with the

 8     help of the international community, and a proper attitude towards

 9     minority groups in Kosovo is therefore, one would expect, required of

10     anybody in politics.  Fatmir Limaj should not get credit for adopting

11     this attitude after the war.  Isak Musliu worked for a time in the police

12     in Kosovo after the war, but was fired for lying on his application.

13             The Prosecution has looked at other prison-camp cases that have

14     been tried at the Tribunal, including the Omarska case, the Celebici

15     case, and the Krnojelac case.  It is very difficult to compare this case

16     to those cases but it is clear that a critical factor in determining

17     sentence is the degree of involvement that the accused had in the

18     involvement of the crimes.  In this case the Prosecution submits that all

19     three accused were deeply and intimately involved in the operation of the

20     camp which, it is important to say, was blatantly illegal in all

21     respects.  This is not a case of an otherwise legal detention centre

22     where crimes occurred.  Rather, it is a case of a camp that was illegal

23     in every aspect of its existence.  Because of the significant

24     participation of the accused in this illegal camp, it is submitted that

25     they should receive significant sentences.

Page 7349

 1             The Prosecution recommends a sentence of 20 years for Fatmir

 2     Limaj, 18 years for Haradin Bala, and 15 years for Isak Musliu.  The

 3     lower recommendation for Isak Musliu primarily reflects the fact that he

 4     is charged with fewer counts in the indictment than the other accused.

 5     Although Haradin Bala was only a guard at Lapusnik, he should receive a

 6     significant sentence because of his direct participation in many of the

 7     crimes that occurred there.  Although Fatmir Limaj did not directly

 8     participate in beatings or murders, he should receive a significant

 9     sentence because of his direct participation in the operation of the

10     camp, his command role, his role in the Berisha murders, and the other

11     aggravating circumstances which have been discussed.

12             This brings to an end the submissions of the Prosecution.  In

13     closing, I will again return to something that Mr. Cayley said in his

14     opening statement.  He said that "The principal strength of the

15     Prosecutor's case, Your Honours, is that the Prosecutor draws on evidence

16     from multiple sources."  In considering the evidence in this case, Your

17     Honours, in evaluating whether witnesses have told the truth about

18     Lapusnik and the accused or whether they have been mistaken, untruthful,

19     or have exaggerated or minimised the evidence, we would urge the Court to

20     look at the evidence as a whole and to look how the various pieces of

21     evidence fit together in this case and corroborate one another.  Of

22     course there are some inconsistencies.  That is to be expected in any

23     case.  And if the evidence were too perfect in this case and there

24     weren't inconsistencies, then we or the witnesses would be accused of

25     having manufactured the case.  And of course it is true that there is no

Page 7350

 1     one single piece of evidence that is capable of telling the whole story,

 2     though there are some witnesses who tell much of it.  But we submit that

 3     when all of the pieces of evidence are fit together from all of the

 4     different sources and all of these pieces of evidence are considered

 5     together, then it is our submission that a single essential story emerges

 6     about Lapusnik, about the prison there, and about the role of the three

 7     accused.  We submit that the facts taken together show that the three

 8     accused were at the Lapusnik prison, knew what was happening there,

 9     played essential roles in the operation of the prison, sought to prevent

10     the truth of the prison from coming out and, finally, are all guilty of

11     the crimes with which they are charged in this indictment.

12             Thank you.

13             JUDGE PARKER:  Thank you, Mr. Whiting.

14             Mr. Mansfield.

15             MR. MANSFIELD:  I'm just going to arrange a little bit of

16     furniture so there's a little bit more room.

17             Am I visible?  I think it may be a little difficult.  And am I --

18             THE INTERPRETER:  Microphone, please.  Yes.  Yes.

19             MR. MANSFIELD:  Yes, I'll put stereophonic sound.

20             Your Honours -- yes.

21             JUDGE PARKER:  You can be seen and heard, Mr. Mansfield.

22             MR. MANSFIELD:  Yes.

23             Yes.  I realise it's a little difficult.

24             I originally indicated and I'm going to keep to that undertaking

25     that I would appreciate the opportunities of a day, in court time.  I

Page 7351

 1     think he will be less than that, but the reason I mention it at the start

 2     is I have an unusual request to make, one that I would pose now so that

 3     you have time to consider whether it's one you might be able to grant

 4     when I finish, and I will obviously allow time if it's going to be

 5     granted, that there's no incursion on anybody else's following

 6     representations.  But I would ask on behalf of Fatmir Limaj whether after

 7     I've finished he may be permitted to add a few words of his own.  Now, I

 8     appreciate he has given evidence over a number of days.  He also had a

 9     few words at the very beginning of the case after I opened it, if you may

10     remember, on the same day.  And if you were to allow that, he would not

11     abuse that, plainly, and would not take more than -- I've asked him

12     precisely how long he might take if he were allowed to address you

13     further, and he said no more than 30 minutes, because I appreciate that

14     he's perhaps not the best judge of how long he's going to be in his

15     opening he was a considerable time and in his evidence some of his

16     answers were extremely long.  So I appreciate you're concerned about

17     time.  But as obviously this case is considerably significant not only

18     for him but obviously for many others as well, he would ask for that.

19     And if I may return to it after you've had a moment perhaps during the

20     course of this afternoon or at a later stage to consider that, then I'll

21     return to it.  I don't ask for an indication at this stage.

22             I have touched in asking for that request on really an extremely

23     essential part of what we want to put before you, and that is the

24     intrinsically important nature of this case and the intrinsically

25     important nature of this Court's role in relation to this case.  And if I

Page 7352

 1     may just quote from the beginning of a seminal work on Kosovo which I

 2     know many have read, Noel Malcolm's introduction.  He originally wrote it

 3     in 1998, but he's updated it since.  But the original introduction had

 4     some prophetic words and we say the prophesy made at that time had

 5     repercussions right through to this moment as I stand here now.

 6             What he said was:  "The Yugoslav crisis began in Kosovo, and it

 7     will end in Kosovo."  He puts that in quotations and he then goes on

 8     saying:  "One can hear this repeated almost anywhere in the former

 9     Yugoslavia.  It's one of the few things on which all the parties to the

10     conflict of the 1990s seem to agree."

11             So it is in fact suggesting, and we would adopt this, that Kosovo

12     in one sense a crucible.  And it being a crucible for that -- certainly

13     that part of the world and obviously in this day and age with global

14     politics as it is, the stability of that region has a knock-on effect in

15     other regions.  However, as you may have read over this summer in the

16     press both here and in the United States of America and in -- and in

17     England, there has been publicity given to the continuing difficulty in

18     Kosovo, and a difficulty that, if I may just refer to what has been said

19     although it's about said under the bracket of sentencing, namely that

20     Fatmir Limaj's role was in a sense dictated by the international

21     organisations after the war.  I want to come back to that if I may,

22     because we say that is a gross misstatement of his position.

23             However, the situation has not been resolved by the international

24     community, and one of the reasons it hasn't been resolved is of course

25     the need for an internal leadership and an internal understanding of what

Page 7353

 1     is happening, and that has been the problem that has been publicised very

 2     recently, namely the United Nations and the United States of America have

 3     both commissioned an inquiry into, essentially, when it might be possible

 4     to finally even begin the process of final status.

 5             Now, you may think that this is a little distance from the case,

 6     but -- this case, but we say it isn't a little distance from this case,

 7     because as you're aware it was opened by the Prosecution, and we repeat

 8     it ourselves today and we also opened similar recognition that by the

 9     Statute and in fact in the information that is handed out as I speak

10     today, in fact I have a copy of the information that's handed out to the

11     public as they enter the building, about the objectives and the purposes

12     of this court.  It has a very special role, in fact, quite unlike a lot

13     of other courts in the world, domestic and international.

14             Some of the objectives, there are four set out in the general

15     information sheet.  They are well known to you but they are objectives

16     that we say place this court in a very different category, and the reason

17     why I mention it is it will require this court to apply particular

18     principles in particular ways in order to satisfy the objectives.

19             Now, the four objectives that are set out for the public who come

20     here -- and this is very recent, it's updated on the 24th of June of this

21     year:

22             "Objectives.  In harmony with the purpose of its founding

23     resolution, the ICTY's mission is fourfold:  To bring to justice persons

24     allegedly responsible for serious violations of international

25     humanitarian law."  Well, plainly a function that many courts have, and

Page 7354

 1     that is to bring people to justice.  "To render justice to the victims."

 2     Again, a function that many domestic courts have.  "To deter further

 3     crimes."  Again, a function that many domestic courts have.

 4             But it's the fourth purpose which we say doesn't prevail over the

 5     rest but adds a dimension that makes the examination that we're going to

 6     make this afternoon in relation to final oral submissions in this case

 7     very significant.  The objective is "to contribute to the restoration of

 8     peace by promoting reconciliation in the former Yugoslavia."  Now, that

 9     function, that objective, we say, permeates not just the fact-finding

10     liability role, in other words the satisfaction of the first three

11     objectives.  Of course it permeates through as has just been mentioned to

12     the sentencing role as well.  Plainly, reconciliation is something which

13     is, as it were a hallmark, a criteria by which justice in this court is

14     seen to be dispensed.  And we say that is particularly important for the

15     international public and for obviously others as well, but particularly

16     since it's an international court.  Because what people will be looking

17     for, what everyone wants is to see how issues that need to be resolved,

18     and of course that's the stage at which we are, how they are resolved in

19     order to, as it were, satisfy those four objectives.  And in doing that,

20     we say, and that's why I'm going to come to not a repetition of our time

21     brief with the paragraph numbers and all the rest of it, and I'm quite

22     sure you've had an opportunity to see that; I don't wish to repeat that

23     at all.  What I wish to do is extrapolate and in a sense distil what the

24     essential problems may be facing any international court with that burden

25     placed on upon it, a burden which no doubt is properly and happily taken

Page 7355

 1     because of the objectives themselves.

 2             The law has to be very clear if the Court is going to perform

 3     that role.  The law has to be clear not only obviously in the Statute

 4     form but how it's interpreted.  And in particular, we say, there has to

 5     be an even-handedness, because if there isn't an even-handedness then the

 6     fourth objective isn't being achieved and it's lapsing into the very

 7     problem that is still persisting in Kosovo:  a division, a serious

 8     division that has not yet been breached or has not yet been bridged in

 9     either sense of those terms.

10             And of course the final matter which is important in

11     even-handedness, which is a principle that I think every jurisdiction

12     adheres to although they call it different things, whether it's a natural

13     law of justice or some other term, and that is that justice must not only

14     be done but be seen to be done, and that of course is particular

15     important here.

16             And in order to as it were transpose those observations and make

17     them relevant to this case, we've selected three areas which I will deal

18     with in a little more detail but not exactly the detail that is in the

19     final brief, not the same detail in terms of repetition.  The three areas

20     are firstly -- and we say it is an extremely significant one here because

21     it's a precursor to the jurisdictional issue, namely the question of

22     armed conflict, which has been addressed most recently by the

23     Prosecution.

24             And secondly -- the second area which we say is significant here

25     and probably poses one of the biggest difficulties - and I don't wish to

Page 7356

 1     preempt, of course, your approach to it - but it would appear to all of

 2     us that one of the biggest problems in this case it may be in others as

 3     well, and I don't speak for other cases, but certainly in this case is

 4     the category which I would term reliability.  That is, reliability of the

 5     material upon which you are to pass judgement in order to come to

 6     conclusions about guilt according to the necessary standard of proof.

 7     And if the standard of proof is going to mean anything in any case,

 8     namely beyond reasonable doubt, and of course I don't address you further

 9     on that standard, it's a well known onus and a well-known standard.  But

10     it has to be borne in mind that one has to return to how reliable is the

11     material that you've been provided with in this case upon which to found

12     a verdict which if it is to be one of guilt has to be assure foundation.

13     Because if it is anything less than a sure foundation, in fact none of

14     the objection -- objectives are being achieved.  And in this category as

15     with armed conflict - we will see and we will certainly suggest that

16     there is - and we hope of course that it will not be perpetrated by the

17     Court itself, there is a duplicity in the way this case has not only been

18     approached but also the way in which materials have been garnered and

19     culled to put before you.

20             The third area which I want to deal with as well is an area which

21     interestingly the Prosecution didn't address at all in their final brief

22     and didn't address before you until moments ago, and we say in this case

23     above many others it will have a strong bearing.  We open the case by

24     indicating it might be the key to it, namely the very nature of the

25     person, namely Fatmir Limaj, that you're dealing with here.  In many

Page 7357

 1     cases perhaps looking at the character and personality may not be

 2     particularly relevant.  So for example it may not be particularly

 3     relevant if you're dealing with an overwhelming case with independent,

 4     verifiable evidence about which there can be no doubt.  But of course we

 5     say that's not this case, and that once you are therefore in a different

 6     arena in terms of the material you're dealing with, then you have to look

 7     at who is the person against whom these allegations are made.

 8             And if I may just for a moment, because with the words of that

 9     just been uttered by the Prosecution, I think it is appropriate for me to

10     begin with a very strong rebuttal of the observations of that been made,

11     albeit under the heading of sentencing, before I deal in a little more

12     detail with the three areas.  Because the suggestion is that Fatmir Limaj

13     in some way or another is some sort of opportunist who has jumped on a

14     bandwagon after -- as it were after the war was over and has only

15     espoused principles because in a sense they have been forced on him.

16     Nothing could be further from the truth.  And I'm only going to summarise

17     it for these purposes:  You have heard from a large number of people, an

18     unusually large number of people who we say of course will have a bearing

19     if the sentencing stage is ever reached, but they have a bearing and will

20     have a bearing on the third area, namely the assessment of Fatmir Limaj.

21     This is not somebody who has, as it were, picked up a baton being carried

22     by the international community and run with it.  This is somebody who has

23     put his position on the line at a very early stage.

24             And if I may just deal with two citations at this stage in

25     relation to what he's told you, because we say they're very important.

Page 7358

 1             One deals immediately with the Prosecution's suggestion, and we

 2     -- that he has as it were that he has only taken up these things after

 3     the war is over.  There came a stage in his evidence and you may remember

 4     there was a long period of time when we showed a video that had been

 5     compiled and he narrated his way through it in order to give hopefully

 6     some assistance as to terrain and so forth.  Once that video was over

 7     there comes a portion - if you need the reference from transcript point

 8     of view, it's T6052 - there then comes we say a very interesting and

 9     important narrative.  I'm only going to read part of it, which

10     illustrates clearly -- and none of this was challenged.

11             The Prosecution in cross-examining - and they did it for long

12     enough as you know, no complaint; but they had plenty of opportunity - if

13     the suggestion was go to be as it is today that somehow Fatmir Limaj

14     didn't really genuinely have these principles, did you hear a single

15     question put to Fatmir Limaj on that basis?  Not a single question.  None

16     of the, if I may call it, background, political, and intent material was

17     questioned at all.  None of the witnesses who came to support his

18     position both just after the war and during the war, none of them were

19     challenged on these issues, none of them, one being somebody I'll come

20     back to right at the end, the mountain teacher.  So it hardly behooves,

21     it hardly behooves the Prosecution at this late stage to start making

22     suggestions of this kind.

23             And the passage which I asked him to deal with after the video,

24     he says this, T6052:  "I mention here that after I became a member of the

25     General Staff," that was in the November of 1998.  He then at a later

Page 7359

 1     stage deals with what happened in the following year, which was the

 2     massacre at the beginning of the year when 40 civilians were killed and

 3     the killing was condemned.  There is only one witness in this case who

 4     hasn't been prepared to accept it and I think you all know which one that

 5     is, the witness who has now virtually been ditched by the Prosecution.

 6             However, in the wake of that, as described in Noel Malcolm's book

 7     and elsewhere and you may be aware of it, there was international

 8     pressure to, as it were, try and solve what was going on in Kosovo.  And

 9     it was that massacre by the Serbs of 40 civilians that caused this.  And

10     it was the conference held at Rambouillet near Paris in France.

11             "It is a public knowledge now, this fact,Fatmir Limaj said to

12     you, that talks in Rambouillet went for two weeks but didn't end [sic]

13     with the signing of a peaceful agreement because there were members of

14     the units who were not yet clear about the importance of the agreement."

15     They were unclear.  "Of course this was the doing of certain persons.

16     Therefore, they demanded that the Kosovo delegation return to Kosovo to

17     make clear to the people the importance of this agreement."  I pause.

18             The significance here is that Fatmir Limaj is participating on

19     behalf of the KLA in talks with the Serbs at a time when the Serbs when

20     the Serbs were doing absolutely nothing on the international arena other

21     than committing acts of murder and aggression themselves.  You may

22     therefore readily understand that as an Albanian for him to be

23     participating in these talks and then returning to his community to

24     persuade them to accept the result of the talks which were intended to be

25     a deescalation of armed force in Kosovo and particularly the presence of

Page 7360

 1     the Serbs was an extremely important role.  And this was happening during

 2     the war.  This wasn't something that he therefore adopted after the war.

 3             And he said:  "The decision to take part in this [sic] was the

 4     most important.  I think this is where I played an unusual role regarding

 5     the participation in such a peaceful conversation [sic], which after all

 6     was our goal, to come to" -- some of it I think may have been

 7     mistranslated -- "to the face where we could solve once and for all the

 8     question of the status of Kosovo but as you know the Serbs refused to

 9     accept the agreement."

10             And of course as you know, the fighting went on, certainly on

11     behalf of the Serbs, and it was only brought to an end not by negotiation

12     by the international community because unlike, unlike Fatmir Limaj, there

13     were others around the table who were unwilling and in fact never

14     intended probably to curb their ambitions on Kosovo, and it was only the

15     NATO bombing that actually brought matters to a head rather than

16     Rambouillet, but I mention it because that is an indication very clearly

17     that he took a position at a very sensitive period in the war when in

18     fact if he had been playing political games he wouldn't have done it.  He

19     wouldn't have wanted to be seen negotiating or agreeing anything with the

20     Serbs.

21             There is one other reference I mention at this time because it

22     indicates, and I think the Tribunal itself has used the word -- the

23     description at one or another time, and that is that truly Fatmir Limaj

24     can be regarded by you as a statesman, not somebody who is a mere

25     politician looking for support.  And the list of people who -- I merely

Page 7361

 1     list them at the moment and I don't go through them in detail:  Jan

 2     Kickert, Peter Bouckaert, Carolyn McCool, Dan Everts, the former Prime

 3     Minister, and of course finally the mountain teacher that you heard from.

 4     They all speak in extraordinarily glowing terms about the commitment of

 5     this man during the war as well as after the war.  And this is what on

 6     another reference I give at transcript 6062, Fatmir Limaj said to you:

 7     "My political stance was known," and this was in answer to a question

 8     about his attitude towards ethnic minorities within Kosovo.

 9             "Now, I was a person who made my views publicly known as well as

10     those of my party.  Our position towards minority was clear.  I have

11     always stated during election campaigns and in rallies we have an

12     example.  We have an example of Milosevic, I have always said.  If we

13     want to have the same fate as Milosevic, who is a dictatorship state,

14     then we know better than anyone what a state means, when you deprive

15     people of their rights, when you...  use violence against them.  So for

16     us we don't need a better example of not doing what we should not do.

17             "The other alternative is the one that is presented to us by the

18     international community.  We are still a long way from civilised Europe

19     and world and therefore we should undertake the steps to build a free

20     society where every citizen should feel equally free.  This is an

21     objective we have for the future.  It's not easy for us because the war

22     left an imprint on a large number of us and the Serbs who had left

23     Kosovo, some of them had been involved in the use of violent.  And so

24     after the entry of KFOR and the return of 700.000...  from places or

25     different places they returned" to Kosovo, "finding that their parents or

Page 7362

 1     children had died."  And of course there was -- and he goes on to talk

 2     about the feeling of revenge that existed at that time, and I'll come

 3     back later to what attempts he made to placate and ameliorate the obvious

 4     feelings of revenge that might occur at such a moment in time.

 5             And that, if I may say, leads into the first area, namely armed

 6     conflict.  Because once again not only does one have to look at the

 7     history and background of Fatmir Limaj himself, but one has to go back

 8     before starting to make assessments in this area to the history and

 9     context of what had happened before those three, four months in the

10     spring of 1998.  And we would certainly ask that you do not view it in

11     isolation for the purposes of this indictment.  It's relevant -- that is,

12     the history is relevant, which I'm going to turn to in a moment; we

13     opened some of it and there's a little in the final brief as well.

14     It's important because in order to understand what did actually happen in

15     1998 and whether in fact what was going on could constitute an armed

16     conflict, one has to see what was it that had occurred in the decade

17     before 1998 that produced the activities that I'll come to in 1998 and

18     whether therefore the Geneva Conventions and Common Article 3 should

19     necessarily apply to it.

20             There is another aspect to this, and the other aspect is what I

21     mentioned at the beginning, is the seemingly duplicitous nature of the

22     way in which the Office of the Prosecutor has approached these cases

23     emanating from Kosovo and Serbia.

24             So with that introduction, may I just go back a fraction to see

25     what the order was to gauge the measure and size of the problem that was

Page 7363

 1     facing those people who lived in Kosovo in 1998.

 2             You may be aware and you may now remember that from 1987, the

 3     Serb authorities' attitude towards Kosovo was a clear and unadulterated

 4     and singular one.  There's no doubt about this.  This doesn't require

 5     evidence on both sides.  Much of what I'm about to say in fact is derived

 6     from what is termed additional material in the indictments against

 7     Milosevic, the very case occurring in this court at the same time as this

 8     this morning.

 9             The policy, I'm going to term, is not a term that's used by the

10     Prosecution in that case, but it is a term that is coined by others.

11     It's a policy of mass terror after 1987, because it was in that year that

12     Milosevic himself took advantage as an opportunist - quite unlike Fatmir

13     Limaj - as an opportunist as it were of promoting his own position and

14     profile.  He was invited to go to Kosovo by his government at that time,

15     others being unwilling to go.  He'd never shown any interest in Kosovo

16     before, but he made a speech on the 24th of April that was to make his

17     career, and that is no doubt why many regard Kosovo historically and

18     recently as being the crucible.

19             And what he did on the 24th of April was to endorse the Serb

20     nationalist agenda in Kosovo and made statements about the fact that, No

21     one addressing the Serbs in Kosovo should ever beat you, were the words

22     that were quoted.

23             Thereafter, that's from 1987, virtually a decade through to 1998,

24     it was continuous.  It was consistent, and it was essentially ethnic

25     cleansing as it turned out by 1998 and 1999, but it was a slow but

Page 7364

 1     oppressive process.

 2             In 1988, high-ranking Albanian figures were dismissed.  In 1989,

 3     the Serbian Assembly started amending the Serbian constitution in order

 4     to strip Kosovo of its autonomy.  The same happened in the following

 5     months until, as you may again remember, there was a time when the

 6     constitution effectively and the autonomy of Kosovo was revoked, which it

 7     had enjoyed since 1974.  That happened in 1989.  And then after that

 8     throughout the 1990s and early 1991, again all from the Milosevic

 9     indictment, thousands, it is said, of Kosovo Albanian doctors, teachers,

10     professors, workers, police, civil servants were dismissed.  There can be

11     no other explanation than this was an attempt to eradicate the Kosovar

12     Albanians, eradicate by forcing them to get out, because the possibility

13     of life was going to be untenable.  And you have heard about the denial

14     of language rights, the apartheid right down to the use of lavatories, as

15     to who should use what.  Cultural and religious symbols were destroyed.

16     Police violence against civilians including the use of torture.  And

17     we've had one torturer here.  The Prosecution in this case felt still it

18     was necessary, until it was pointed out very clearly that -- it would be

19     suitable to call this individual, and we'll have to return to this.

20     Suitable, why?  Because you can believe some of what he says?  Is this

21     the standard to be applied?  We haven't heard so much about him more

22     recently, and it's not entirely clear what you're supposed to do with

23     that individual.  We would say dispose of him and rely on nothing that he

24     says to you.

25             So there is absolutely no doubt that the regime facing ordinary

Page 7365

 1     citizens in Kosovo was a horrendous one and it went on with the campaign

 2     of shelling Albanian towns, Albanian villages, Albanian farms, cattle,

 3     crops.  Every means of employment, means of survival were slowly being

 4     destroyed.  And the indictment in Milosevic suggests that the United

 5     Nations had estimated by mid-October 1998, so the year we're actually

 6     obviously interested in, over 298.000 people, roughly 15 per cent of the

 7     population, had been internally displaced.  That's nothing compared with

 8     the figure they later quote by May of the following year 1999, the very

 9     year in which the Rambouillet conference had been assembled.  Over

10     740.000 Kosovar Albanians, approximately one-third of the Kosovar

11     Albanian population had been expelled from Kosovo.

12             There had been Security Council Resolutions condemning the use of

13     extensive force by the Serbs.  And there had been a Resolution indicating

14     that the situation, and this is in September of 1998, that the situation

15     in Kosovo had deteriorated and constituted a threat to peace and security

16     in the region.  And it was because of that threat of course and the

17     Holbrooke agreement that the OSCE-Kosovo Verification Mission was

18     established.  And one member of that mission - which I'll come back to in

19     a moment, which you've heard very little about because of course it was

20     disclosed late in this case on the basis that the Prosecution claim they

21     didn't appreciate its relevance - (redacted)

22     has provided you with an extraordinarily important and pertinent

23     statement on this very issue of whether in fact there was an armed

24     conflict.  And the indictment in Milosevic then goes on to talk about

25     Rambouillet and I've mentioned Fatmir Limaj's role in that.

Page 7366

 1             I pause for a moment in a situation where thousands have been

 2     displaced, hundreds of villages and homes have been destroyed.  People

 3     have been killed.  As you know, because one of the triggers, the Jashari

 4     family in the spring of 1998 is said to be the reason that people

 5     returned to Kosovo.  What are the people of Kosovo to do against that

 6     background?

 7             Now, this is important in terms of the application of the Geneva

 8     Convention, because if I may just step back a moment from the -- for the

 9     purposes of this, it's all very well for the Prosecution to say as they

10     do and emphasise that of course the ICRC are saying that the Convention

11     and Common Article 3 has got to be applied as widely as possible.  Well,

12     that's a very empathetic, sympathetic gesture and it's very important

13     plainly that the relationships of warring factions, of armed states are

14     carefully controlled.  However, it -- was intended, the conventions, as

15     you know, to protect victims.  That's what it was all about in the first

16     place.

17             Who were the victims of the history I've only given a very short

18     synopsis of for that decade?  I think there can be probably no issue.  I

19     would not imagine for a moment that the Prosecution in this case would

20     say that Kosovar Albanian citizens and civilians had not been severely

21     victimised in the way I've described.

22             In the circumstances, therefore, that prevailed by the beginning

23     of 1998, if those - and I posit this - if you were yourselves to live in

24     a small village of the kind depicted on that video, fairly remote, fairly

25     vulnerable, you don't have arms, all you have is the possibility of

Page 7367

 1     somebody in the village having a hunting rifle.  But what you do have is

 2     a much stronger possibility - which the Prosecution accept, that the VJ

 3     and obviously Serbian police for that matter - but certainly authorities

 4     not only had a far greater propensity to use force but also had far

 5     greater resources.  So the risk that the villagers were facing was the

 6     presence of armoured vehicles and of course eventually tanks.  Which is

 7     of course, when shelling occurred it was clear that they had very little

 8     or no protection.

 9             If in those circumstances what happens in the early stages, and

10     that is the spring of 1998, is that villagers themselves say, "Well, we

11     have to protect what's left.  Otherwise, there will be nothing."  Are the

12     groupings that occur in that way, and there is a consensus that that is

13     what was going on, are these groupings, sometimes described as a

14     horizontal association that are occurring organically, naturally

15     erupting, are they to be characterised as parties to an armed conflict

16     just because the other side, not because they need to eradicate terrorism

17     but of course they - that is the Serb authorities - categorised the KLA

18     and what was going on as terrorism.  Interesting, that.  They didn't

19     themselves regard it as some for the of no doubt armed conflict.  Not

20     that that matters for your purposes what the Serbs thought or for that

21     matter what anybody else thought about the matter, but that is in fact

22     their approach.  Their approach was to use this not even insurgency but

23     this protective force as an excuse, labour it terrorist and then swarm

24     in, which is of course what they began to do.  And as Colonel Crosland

25     said at one stage had they chosen, they could have wiped the KLA out

Page 7368

 1     overnight almost at one stage.

 2             So this was a situation where if you were abroad watching your

 3     homeland being destroyed almost in a war of attrition conducted by a

 4     heavily armed Serbian force, then it's hardly surprising that you might,

 5     one, want to come back and help, and we say this is not some act of

 6     opportunism by Fatmir Limaj or any of the others who came back.  Think of

 7     it for one moment.  If you had left Kosovo and you were in Switzerland,

 8     Italy, Sweden, wherever, how much easier would it be for you to say, "I'm

 9     not going back there.  I'll let the others do the fighting"?  So actually

10     the mere fact of a return I would submit to you is a significant one,

11     risking lives.  And a lot of people died.  Of that there is no doubt.

12             And Fatmir's description to you and I'm not going to read it out,

13     I'm merely going to describe it because you will remember it was a

14     graphic description.  People are coming back in small groups, crossing

15     the border.  Yes, arms are coming over the border because they have but

16     few themselves, as I've mentioned the odd-hunting rifle here and there.

17     There's no point coming back and saying to villagers, Well, just use your

18     pitchforks when they come in.  You only have to think across to Africa at

19     the moment and what has happened in Darfur and elsewhere.  Are people

20     supposed to say No, no, no, it's all right, you can do what you want you

21     can come through you can destroy all of us.  All our existence can be

22     destroyed and we'll just leave.  Or are they to do what anybody I think

23     would submit is a natural and legitimate aim, and that is to protect what

24     little is left?

25             And what Fatmir did effectively was to go to the area that he

Page 7369

 1     knew best.  That's what they all did.  There's no doubt about it.  On the

 2     map you can see where he was born, where his family lived.  That's where

 3     he went.  He went to the villages nearby to -- of course it would be easy

 4     to say organise, but actually not; merely to raise the level of awareness

 5     that it is possible to withstand aggression.  It's really racing morale.

 6     That's what's doing in the early stages.

 7             Whatever the KLA may have done in previous years starting in

 8     1996, it could -- could be described and has been described as guerrilla

 9     tactics, hit-and-run tactics, targeting particular individuals or

10     premises.  But what was happening now is completely different.  This

11     wasn't a guerrilla operation, nor was it at this stage, that is the

12     spring of 1998, the very period that you're dealing with in terms of

13     whether there was an armed conflict was merely raising awareness and

14     getting people -- as the Prosecution now say, Oh, well, digging a ditch,

15     that's an organisation.  That becomes somehow or another a manifestation

16     of an army.  Well, all I would suggest to you that digging ditches, yes,

17     is a manifestation of protection.  It's a manifestation of the need at

18     least to save what you have left.

19             And we submit, therefore, that this process, this organic process

20     of which Fatmir Limaj played such an essential part - but so did others,

21     he was one of many - each village no doubt deciding amongst themselves

22     not because somebody back in Switzerland, some highfalutin figure who may

23     or may not be on the General Staff says you've got to do it here you've

24     got to -- it doesn't operate like that.  It couldn't operate like that.

25     It had to operate on a consensus basis of these people in the villages

Page 7370

 1     willing to do it.  And of course by this stage they're beginning to

 2     realise that unless they do something there will be nothing left because

 3     the crops are being burnt and so on.  That's what's going on.

 4             So when the words as they do crop up in various interviews, prior

 5     inconsistent statements and so on about coordination, cooperation,

 6     agreement, it is because this is a very different kind of situation, not

 7     the kind of situation that is commonly evoked or invoked in

 8     armed-conflict situations.  It is where a group of people have decided

 9     effectively on self-help.

10             I wonder -- I'm just looking at the time, whether --

11             JUDGE PARKER:  We have over ten minutes anyway, if that's

12     convenient.

13             MR. MANSFIELD:  Ten minutes.  Yes, it certainly is.

14             So the question then is having looked at the nature of this

15     movement essentially -- and we say it's not insurgency.  We say in fact

16     whatever the Serbs may have thought about it isn't even terrorist.  It is

17     effectively a self-help protective force, if you want to use any term at

18     all.

19             Now, if the Common Article 3 and the convention is going to apply

20     to this kind of force, then one has to be entirely clear what the

21     criteria are before obligations are going to be imposed on what we

22     suggest is a somewhat higgledy-piggledy arrangement of villages doing it

23     themselves and no doubt attempting to have some kind of hierarchy but not

24     essentially achieving it.

25             And the two limbs as it were that have been suggested, and I'm

Page 7371

 1     obviously not undermining them but asking really how far they really take

 2     you.  One is the intensity or the protractive nature which has elaborated

 3     yesterday and the other is organisation.  To save time I'm going to

 4     concentrate on organisation and may I say so it's clear we have also, to

 5     shorten matters for you, a response on the question of armed conflict in

 6     writing.  I'm note going to -- I think you may have already have it.  I'm

 7     not sure.  May I -- oh, you have.  It's just on this first area, armed

 8     conflict.  I make it clear I'm not going to read it out I'm not going to

 9     go through it in detail.  It's merely there in a sense to shorten

10     matters.  Perhaps you'd be kind enough to read it at a later stage.

11             However, one of the matters that we highlight in this skeleton

12     is, of course, the threshold and extent of organisation.  If the

13     intensity of the conflict can and has to be looked at in a broad context

14     geographically speaking, so one isn't just looking at what happened in

15     and around Lapusnik, as the Prosecution have averred, but in other parts

16     of Kosovo, the question I pose is:  Does the same apply to the

17     organisation in inverted commas of this protected force?  And essentially

18     the question is this:  What is the threshold that has to be applied, and

19     we say it's extremely important that the threshold is addressed, because

20     otherwise once again in pursuing these objectives that have been set out

21     in the Statute and the information and so on I've mentioned, there has to

22     be a clear understanding who the conventions are aimed at and what kind

23     of conflict they're going to as it were apply to.  What triggers the

24     conventions.  And we say what's happened here is that the appearance of

25     people occasionally in camouflage uniforms, the appearance of the hunting

Page 7372












12   Blank page inserted to ensure pagination corresponds between the French and

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Page 7373

 1     rifle and even the odd machine-gun because there weren't too many of

 2     those, is then said to as it were -- and even perhaps the obtaining of

 3     arms across the border coming into Kosovo over this period of time, are

 4     they the -- are they the signs of organisation that therefore then make

 5     it applicable as widely as possible?

 6             The Prosecution really don't help.  What they say is Oh, well,

 7     these criteria are not exhaustive.  For example, banditry; short-lived,

 8     unorganised insurrection; terrorism.  These are just possibly guidelines.

 9     Well, I don't dispute that.  But then what is the threshold if that

10     isn't?

11             So for example, is organised terrorism caught by this?  Because

12     if it is - and I only say it in passing because I appreciate observations

13     that the Tribunal have made in the past - if it is, then certain other

14     organisations in the world that come well within it.  The IRA, ETA and so

15     and.  Protracted, many years, dominate certain territory, plenty of

16     weapons.  Camouflage uniforms, discipline codes, all that kind of thing.

17     Are they caught or are they not or is it arbitrary?  And we say this is

18     -- this is the kernel of this area.  It cannot be arbitrary.  There has

19     to be a clear understanding and we say this case demonstrates the

20     possibility here that what has happened is that the KLA have been, or

21     rather these defendants as representing the KLA, have been characterised

22     as an army for the purposes or the triggering of these provisions when in

23     fact if you look at what was happening on the ground there was actually

24     no organisation that gets anywhere near the sort of organisation that

25     ought to trigger these -- these provisions.

Page 7374

 1             And if one needs -- perhaps I'd just refer to it at this stage

 2     and deal with it in a little detail afterwards, and I do want to as it

 3     were go through it because it's the statement of (redacted), but

 4     he was preceded by our own expert Mr. Churcher.  Interestingly, both

 5     Churcher and Crosland who gave evidence for the Prosecution had

 6     experience in Ireland and as you may remember I asked Colonel Crosland

 7     quite a bit about the comparisons between the two and there are a lot,

 8     but I don't take that further at this stage.

 9             But so far as Mr. Churcher is concerned, he has provided you - it

10     was DL13 - he provided a starting place, and at this point it has to be

11     remembered that we did not know that the Prosecution had (redacted)

12     (redacted).  But in fact, we say what Mr. Churcher told you in evidence

13     and what he put in his report in fact is reflected and echoed in

14     (redacted) to the Prosecution.  So leave aside what members of

15     the KLA may or may not say, whether it's Fatmir Limaj or whether it's

16     somebody called by the Prosecution.  Leave aside all that.  The people

17     who have certainly an understanding of military matters have attempted to

18     obviously survey the scene in Kosovo.  And the nature of the military

19     command is set out on the fourth page of DL13.  And what he says under

20     the nature of military command is this:  "Through the testimony in this

21     case it's come out time and again that the witnesses refer to discussing

22     orders or accepting them.  This cannot imply a military-command framework

23     in a military sense.  The fundamental difference between the creation of

24     the KLA and other forces in the Balkan conflicts was that they had no

25     military --

Page 7375

 1             THE INTERPRETER:  Would the counsel please slow down while

 2     reading.  Thank you very much.

 3             MR. MANSFIELD: -- a command structure."  Well, is he talking

 4     nonsense or is he not?  And of course we called somebody who was in the

 5     KLA and concerned with attempting -- one of the few militarily trained

 6     officers who had actually served in Bosnia.  And of course that happens

 7     to be the contrast that Mr. Churcher himself makes with what happened in

 8     Bosnia because he has particular experience of that.

 9             And of course one appreciates that the Prosecution do not have to

10     show that the -- what was going on in the Protection Force in Kosovo was

11     on the same level as a NATO army, but actually themselves, as I will

12     demonstrate after the break, have not been clear as to what really was

13     the description best fitting to this particular force.

14             And just to continue with this particular paragraph on page 4 of

15     DL13:  "They relied on volunteers who did as they were asked if it suited

16     them.  There was no recourse to any real disciplinary measure other than

17     taking one's weapon away or dismissing them from their group.  This is

18     not a system of military command that any militarily trained officer

19     would recognise."  And he gave in evidence as the graphic position

20     whereby merely because you say you are in command and you give somebody a

21     title doesn't mean to say that makes it an army of any kind or makes it

22     an organisation in which on the ground there is an effective structure

23     even of a rudimentary kind.  And what we're suggesting here, there wasn't

24     even a rudimentary structure which would begin to trigger, which would

25     begin to trigger the provisions in the Geneva Conventions.

Page 7376

 1             And then he goes on to talk about:  How do they communicate?  I

 2     mean, it's pretty basic.  How did they communicate?  If I just stand back

 3     and ask you to reflect.  What's the evidence?  They had people running

 4     from one place to the next.  The only way they went to the aid of other

 5     people is because Ah, we heard over the hill there was a bit of fighting

 6     going on.  So what do the Prosecution say?  If you run over the hill and

 7     join them on the other side, that's organisation.  Somehow or another

 8     once again the protected force becomes elevated to something much grander

 9     than it really is.

10             So Mr. Churcher, I'm not going through the rest of his evidence.

11     We mention it in the final brief.  But we say he's not to be dismissed.

12     And plainly, if you are unable to dismiss him and this comes back to the

13     onus and standard of proof, then one has to consider seriously

14     (redacted).  And may I,

15     looking at the time, do that after the break.

16             JUDGE PARKER:  Thank you.  We will resume at five past four.

17                           --- Recess taken at 3.44 p.m.

18                           --- On resuming at 4.10 p.m.

19             JUDGE PARKER:  Mr. Mansfield, before you continue, the matter you

20     raised with us at the beginning of your comments, we're disinclined to

21     take the course you propose.  Your client has had a very considerable

22     opportunity to address the Chamber with the statement that he made at

23     some length at the beginning and then very extensively canvassed the

24     field of issues in the course of his own evidence.  And we think that

25     having regard to the time, the needs of the other accused in this case,

Page 7377

 1     that this would be an undesirable course to allow a further, even if it

 2     be limited to half an hour, a further time.  So we would think no on this

 3     occasion.  Thank you.

 4             MR. MANSFIELD:  We have prepared so it's a little easier to

 5     follow when it's a more detailed document, copies, hard copies, that is,

 6     of (redacted) statement.  It's officially exhibited DL13, or part of

 7     DL13.

 8             JUDGE PARKER:  And another matter has been brought to my

 9     attention.  It's asked when you're reading, in particular, if you could

10     just turn down the steam a little.

11             MR. MANSFIELD:  Yes.  I'm sorry, yes.

12             JUDGE PARKER:  The interpreters have a job keeping up with you.

13     Thank you, Mr. Mansfield.

14             MR. MANSFIELD:  I'm just check to go see if you have the copies.

15     Yes, you do.

16             (redacted).  It is important to

17     see on the first actual substantive page, page 2, in fact, what -- what

18     and who he is.  He's working currently -- it don't know whether he still

19     is but certainly he was at the time of the statement, working in Kosovo

20     as chief of operations the Min Action Coordination Centre.  He's been an

21     operations officer for the same organisation, he says, when he joined the

22     army.  But it's the next paragraph which puts him in a strong position in

23     terms of the opinions that he later proffers.  He's a qualified

24     paratrooper, commando, combat diver, mountain leader, arctic warfare

25     instructor, military ski instructor, small arms instructor and

Page 7378

 1     map-reading instructor.

 2             Then I go to the paragraph:  "In October 1998."  He was seconded

 3     to the Kosovo Verification Mission.  That's the one I mentioned earlier

 4     after the Holbrooke agreement.  "I received military briefings at South

 5     Cerney, which is in England.  Those briefings included such things," and

 6     then he lists them.

 7             I mention that because it -- he's not as it were going fresh on

 8     this mission.  And October 1998 is again a pertinent date because if the

 9     KLA, and we're dealing with armed conflict and organisation, was to be

10     characterised as arriving at a threshold of organisation to trigger the

11     Geneva Conventions, then surely they'd have reached it by October 1998,

12     which is only two or three months after the period which you are

13     specifically looking at.  So we say it's very important period.

14             And we also say, and I won't repeat it again but I mentioned it

15     before the break, that it is remarkable that the Prosecution did not

16     recognise the significance of this statement in time to certainly have it

17     as part of much earlier stages of the case.  However, we have it now.

18             He says at the bottom of the page, "I was the operations officer

19     for Kosovo."  His responsibilities were management and coordination of

20     the Kosovo field patrols.  "I would task the patrols on a daily basis."

21     Again, important for the purposes of the mission he was there.  In other

22     words, he was -- he had to have known what was going on on the ground in

23     order to verify, for example, a reduction in hostilities, the nature of

24     the hostilities, and whether either side is breaching the understanding,

25     at least, post-Holbrooke.

Page 7379

 1             Then the next page he says at the top, "The primary purpose of

 2     the patrols at that time was to verify what actually was going on.  The

 3     Serbs and the KLA would tell us certain things but they had to be

 4     verified" - so again he's not somebody who is just taking things at face

 5     value - "to ensure that the Holbrooke agreement was being adhered to.  In

 6     effect, no one should have been shooting at each other.  Had those terms

 7     were not being adhered to we had to find out who was responsible for the

 8     breach."  And as time went on he became involved with liaison with the

 9     KLA.

10             Then in the middle of this page is this important paragraph which

11     has to be seen alongside Mr. Churcher's evidence.  "On paper the KLA had

12     a unified chain of command but in practice this was not the case.  What

13     can be termed as their General Staff had no credibility with their zone

14     commanders.  This is because the zones are determined by geographical

15     features and the personalities within those regions had attained that

16     status of authority by tangible activities on the ground and the KLA

17     fighters were only loyal to their own zone commanders.  The Albanian clan

18     system has to be understood and recognised when dealing with matters such

19     as this.  The rank structure is determined by which is the dominant

20     family."

21             So once again, this is an echo of the description I gave in

22     general terms of the way in which, rather like topsy, things were growing

23     in the earlier months of the year from a guerrilla organisation to

24     protective village groupings.  That's plainly why the loyalty he

25     describes there is very local.  Everything's very local.

Page 7380

 1             And he says, "This would mean that decisions made by the KLA

 2     General Staff were not always agreed to by the zone commander and

 3     therefore, orders were not carried out."  He gives an example.  I won't

 4     trouble you with it.

 5             On the next page -- and of course by October there's no question

 6     on anybody's evidence there were zones.  The question is how effective

 7     they were:

 8             "The zones were very insular and the method of operation by which

 9     zone differed dramatically and did not necessarily satisfy the needs of

10     the other zones.

11             "Even within the zones, there were individual factions who would

12     not listen to the zone commanders.  The zone commanders knew this, but

13     they worked around it.

14             "The General Staff of the KLA was set up in 1998 without any

15     consultation with the zone commanders.  This caused a great deal of

16     indifference from the individual zones.  They felt the members of the

17     General Staff were not part of the group and had done nothing to be part

18     of the group.  They were set up to provide a recognisable and acceptable

19     body of people for the international community to deal with."

20             Very important observation.  Again reflects entirely Krasniqi's

21     role, for example, and the propaganda that was being put out in order to

22     boost morale and possibly engage the internationality community's

23     support.

24             "The chain of command," he goes on, "on paper is General Staff,

25     zone commanders and brigade commanders."  And then he goes on to deal

Page 7381

 1     with logistical support.  He deals with the Pashtrik zone, Drenica zone -

 2     I'm now on the next page - and the contact he had on a regular basis with

 3     teams who were living with the KLA.  So they're inside the KLA as an

 4     observation team.

 5             And he says on page 6 at the top:  "I would be in contact with my

 6     field officers on a daily basis to receive information from them and to

 7     update them on current developments...  The tactical command in each zone

 8     was the responsibility of the individual zone commanders," and then he

 9     gives a particular example.

10             In the next paragraph:  "His response," that is, the commander

11     Ramush, "was to say that his brigade commanders were responsible for

12     their own areas and could take any action deemed necessary within those

13     areas or these areas."  Again, it is reflective of Mr. Churcher's

14     observations on command structures.

15             "All zones operated in quite different ways.  Some commanders

16     were reactionary.  Some were more organised but it really depended on the

17     personality who was in charge."  Well, I think that alone doesn't really

18     create an army in any sense -- oh, I'm so sorry.

19             MR. WHITING:  Excuse me I'm sorry to interrupt.  It's just that

20     statement that's being referred to is in evidence under seal at the

21     request of the witness, and I believe that that is not a problem except

22     for the identity of the witness, and I would just ask if that -- if his

23     identity which has been referred to on page 36, it may have been referred

24     to before but certainly at page 36, if that could just be redacted.

25     Otherwise I think that there shouldn't be a problem as far as I can tell.

Page 7382

 1     And I apologise for interrupting.

 2             MR. MANSFIELD:  Yes.  No, sorry, my fault entirely.  I'm sorry

 3     about that.  I don't -- I'll avoid any other names in any event.  I don't

 4     think it's actually necessary and just stick to observations.

 5             JUDGE PARKER:  We will then redact the reference on page 36.

 6             MR. MANSFIELD:  Yes, I'm obliged.

 7             So I'd concentrated on all zones operated in quite different

 8     ways, and certainly I would suggest that that, given the way that the

 9     Prosecution are saying that the KLA have characteristics or features of

10     an army, there is no army on earth that is run in this way.

11             "The operations the KLA ran were more localised rather than being

12     run on a national scale.  They did have their ability to adjust their

13     operations."  Three guys are mentioned.  I don't perhaps deal with that.

14             Bottom of the page, something I mentioned before the break:

15     "Orders between the zones were conveyed orally.  There were very few

16     written orders, but these were only issued in extreme circumstances," and

17     then he deals with the NATO bombing.  He doesn't know who organised the

18     approach, but it wasn't very successful.

19             And here we have another feature which I mentioned before the

20     break, page 7 at the top:  "The KLA had a runner system where people

21     would physically deliver the orders whether they be oral or written."

22             Further down the page:  "A random sequential numbering system so

23     number 1 wasn't the most important person."  It's a minor detail but one

24     wonders what exactly can be the character of this other than the organic

25     ground-upwards situation, which is random.

Page 7383

 1             "I'm not aware if there is any system in place to acknowledge if

 2     the orders had been received.  I'm not aware of any regulations or

 3     disciplinary regulations in force within the KLA.  It was more the case

 4     of, mess up and suffer the consequences.  If there are any in-house

 5     regulations they were enforced locally."  He then gives an example which

 6     I don't go through.

 7             And then I'm going to end on this because it's a long statement

 8     and there's much more dealing with a much later period.  But on page 8,

 9     the fourth paragraph down:  "I cannot provide any information that would

10     support the theory that the KLA this a command and control system in

11     place.  They were very fractious."

12             We say, therefore, that statement derived by the efforts of the

13     Prosecution, not the Defence, carries considerable weight because of the

14     person who is making the observations, his background, his experience on

15     the ground we say at a critical point.  And therefore, we say -- may I

16     just ask you to turn to the skeleton argument on the jurisdictional issue

17     which we've submitted today just for the purposes of a couple of

18     observations that link to that.

19             This description that I've been elaborating upon of a ground

20     upwards locally based situation in a sense is reflected by the inability

21     of the Prosecution to as it were have a consistent description

22     themselves.  It's on page 3, and it's paragraph 8 under the heading "The

23     Prosecution's shifting of the goal posts."  And I merely here indicate

24     that the description that the Prosecution have made of the KLA - it's

25     just an indication, no more, that in fact our suggestions are correct -

Page 7384

 1     is they started off in their pre-trial brief suggesting that the KLA had

 2     a "well-organised structure."  We say that was a nonsense.  They then

 3     toned it down in their opening statement to a "rudimentary military

 4     structure" which functioned -- which functioned -- we say of course even

 5     that hadn't been reached.  However, they upgraded it again in their final

 6     brief as resembling a fully organised army, having developed many of the

 7     characteristics of a fully organised army, using the phrasing.  And most

 8     recently, of course, they've added to that by saying it doesn't have to

 9     be at the same level as a NATO force.  But we say of course none of these

10     descriptions fit what I've just read out, which is a fairly chaotic, and

11     particularly so in the early stages, of people as it were running around

12     trying to as it were gather up enough support to at least prevent the

13     Serbs entering their villages.

14             But there is another point we put in the next paragraph and that

15     is of course:  What's the start date for this armed conflict?  Because

16     whilst one doesn't expect precision in terms of a particular day, this is

17     where one enters extremely interesting territory.

18             The starting point in the indictment is no later than early 1998.

19     There's nothing in the pre-trial brief about it.  It's February or March

20     in their opening address to you, and mid-May, that's through the expert

21     Philip Coo, and there's nothing in the final brief, and there's nothing

22     yesterday or today about what it's supposed to have started.  And of

23     course we say there's a very good reason for this.  The reason is that

24     the armed conflict hadn't begun at this stage because if it had, and if

25     it was so clear that there was an armed conflict no later than early

Page 7385

 1     1998, the big question that then has to be asked, with the bigger

 2     tapestry in mind and equal-handedness and even application of the law, is

 3     why on earth did the Milosevic indictment, which spent a lot of time -

 4     I've only culled some of it - on the incidents in 1998, in facts going

 5     back before that, back into the 1980s, where there was an opportunity for

 6     the Prosecution, the same prosecuting authority, to say there was an

 7     armed conflict which covered undoubted, we say, crimes committed by the

 8     Serbian regime during this period, 1998.  So why not?  Is this just a

 9     convenience?  And we say this is another example where one has to look

10     very carefully at this bigger picture before one starts, as it were,

11     passing judgement on this case if in fact there is not an equality

12     between cases that are actually going on in the same courtroom at the

13     same time, as it were.

14             Therefore, merely looking at the question of the date and the

15     question of the Milosevic indictment where very serious crimes, we say

16     far in excess of anything alleged in this case have apparently not

17     merited the attention of the Prosecution for the purposes of this

18     Tribunal, we say neither should what is alleged in this case attract your

19     attention.

20             Now, before leaving the skeleton, may I make clear, and I have

21     done so over the adjournment because I don't want to take up necessary

22     time about it.  On page 5, it's the next page, there is a long section

23     concerning the relevance of the Human Rights Watch conclusions which have

24     been prayed in aid by the Prosecution both in their written final brief

25     and in their observations most recently to you.

Page 7386

 1             We concede at once that the other organisations, there are three

 2     others, that are cited in this skeleton, and their conclusions are not

 3     reports that are before you.  We were not intending that they should be

 4     before you.  It was merely to indicate on the face of it that you should

 5     have no more recourse to Human Rights Watch for the purposes of

 6     determining armed conflict than having recourse to any of the other

 7     organisations; or, for that matter, American diplomats who characterise

 8     the KLA as terrorists.  Other people's opinions, even the Serbian

 9     government's, on this issue is not definitive or even persuasive.  And it

10     is interesting in the Milosevic case itself when they came to issue,

11     there isn't a decision suggesting that it should or shouldn't, in fact.

12     The Tribunal on that case said they could continue without having regard

13     to the Human Rights Watch conclusions.  But if and as I understand it the

14     Prosecution do object to that other material being before you, I'm not

15     going to -- I'm not going to ask you to take up time as it were in a

16     bywater of this case and therefore if it will satisfy certainly the

17     desires of the Prosecution on this matter I'm happy that the matter is

18     left and that you don't pay particular attention to those paragraphs.  I

19     hope that satisfies Mr. Whiting or perhaps it doesn't I don't know.  But

20     that's the best I can do at the moment.  Otherwise, I don't take time on

21     this skeleton and I leave for matters to be considered by you in due

22     time.

23             May I turn, therefore, from the question of armed conflict which

24     we say precludes the jurisdiction to the next major topic of the three I

25     had indicated I would develop.  This next one is obviously quite a large

Page 7387

 1     one.  I will endeavour to deal with it again without having to repeat

 2     everything that's in any of the final briefs for that matter, but it is

 3     significant because it requires everyone but particularly obviously

 4     yourselves to consider how best to assess material and material that in

 5     the end could be categorised to sufficiently satisfactory to provide a

 6     basis for a conclusion beyond reasonable doubt if there is to be a guilty

 7     verdict in any of these cases.  And we say that the categories of

 8     material which you've been provided with do not -- do not provide or

 9     satisfy this test, because in each of the categories, and I'll go through

10     them just to indicate the problems that are faced, there are severe

11     shortcomings and deficiencies, and it's interesting that it's on the

12     witnesses with whom there are severe shortcomings or deficiencies that

13     the Prosecution most rely.

14             Now, the categories of material or witness that we're having to

15     look at under this heading are firstly witnesses who have been declared

16     hostile, for which there have been applications and which you've granted,

17     and in particular the repercussions of those applications, being the

18     admission into evidence of prior inconsistent statements.

19             I will come back to that.  We we're not seeking to re-litigate as

20     was suggested yesterday.  But we do have observations, again in the

21     context of the objectives of the Court and the particular function it

22     has, and, we suggest, the very high standards that need to be applied not

23     only to armed conflict but also to this area.

24             So the first subcategory is hostile witnesses.  The second

25     category, there's really one person I've put in it and I'll refer to him

Page 7388

 1     only as Luan.  I think everybody knows to whom I refer.  And he's in a

 2     separate category because of his very particular position in this case,

 3     which also gives rise to, we say, severe problems.

 4             And then thirdly, there are the victim -- I'm going to call them

 5     victim-survivors if that's a satisfactory description.  And there are a

 6     number of those, and again I'll indicate who they are.  And of course

 7     what the Prosecution have done in their various stages of their final

 8     brief is to, in many of these cases, almost uncritically accept or ask

 9     you to accept as satisfactory material emanating from these various

10     sources.  And they go on particularly in their oral submissions yesterday

11     to do something which those of us in common-law jurisdictions are very

12     cautious about ever doing, and that is looking for corroboration from

13     another of the what might be called tainted but at least deficient or

14     flawed sources.  And of course that's a nonsense, to start looking at

15     corroboration from others.  One has to look at each one individually to

16     decide whether there's sufficient reliance that can be placed.  And then

17     of course if there can be sufficient reliance placed, you may then look

18     at another witness and see whether there's sufficient reliance there.

19     But what you don't do in order to decide whether the first witness is

20     reliable is at the same time look at the second one and say, well he's

21     saying the same thing so the first one must be reliable.  It's a circular

22     process of corroboration, we say.  It may sometimes be embraced by

23     domestic jurisdictions although we would suggest rarely, but at this

24     level this exercise that has been engaged in here is one to be we say

25     have one's face set against.

Page 7389

 1             And this is if I may take the first of these categories, the

 2     hostile witnesses.  Because it does give rise if I may put it to you with

 3     a very important approach, and what I intend to describe here is really

 4     the conundrum, the problem being set in relation not to hostile witnesses

 5     but all witnesses in this case.  Because what the Prosecution have asked

 6     you to do eventually and essentially is Well, all right there might be

 7     witnesses who've lied.  I'm putting it in the short form.  There might be

 8     witnesses who've lied, but nevertheless you're quite entitled to

 9     accommodate those lies, perhaps even overlook those lies on the basis

10     that other things they're saying, same witnesses, can be used by you to

11     provide material to support the Prosecution's case.  That's putting it in

12     a nutshell.

13             That theme arises throughout many of these witnesses.  Because

14     some of them plainly -- for example, some of the victim witnesses, one we

15     will suggest has lied in court but there are others who are seriously in

16     error and confused.  And once again we say you have to -- once you have a

17     situation of either lies or serious confusion, you have to ask some

18     fairly fundamental questions about whether it is desirable in the

19     international arena for decisions and verdicts of this gravity in the

20     context of the situation I've already described to bring back verdicts

21     certainly of conviction to the -- to the level of satisfaction when you

22     are dealing with a cherry-picking exercise, because that's what it is.

23             Now, I'm in the asking -- I'm specific about this.  I'm not going

24     back and asking for all the arguments that we put to you, and we've

25     mentioned them in the final brief.  We've already done it in writing.

Page 7390

 1     You have them.  You've ruled on them.  But at this stage they do have a

 2     further bearing.  And in relation to the hostile witnesses who come at

 3     the beginning of the analysis as the first category, what you said in

 4     relation to this issue at paragraph 29 was, firstly, that oral evidence

 5     remains the primary and normal standard.  And we would accept that,

 6     because there is no point essentially in having in facility if at the end

 7     of the day not quite as a matter of course but as an increasing incursion

 8     on that, and you relate that in the second part of this paragraph, it is

 9     not the intended purport of this decision that an earlier account or

10     statement of a witness should be admitted in evidence as of course at the

11     instance of the party calling the witness to give evidence.  But there

12     is, we say, redolent in the approach of the Prosecution a risk that that

13     is what is increasingly happening in these courts.  And we say that it

14     may be a difficult situation being faced by the Prosecution and the

15     Court, but it is in these situations that the test of reliable evidence

16     has to be even stricter than it might be in a domestic court.  And that

17     is why we say the standards of international justice, if anything, have

18     to be higher.

19             And of course you went on to say at paragraph 33, which is why

20     I'm asking you to consider a general approach to evidence, because

21     essentially what our submission comes to is this:  If you decide in any

22     particular case that is a witness has seriously lied and in some sense -

23     not about anything, because plainly if he's lied about the colour of his

24     socks or something that is peripheral or irrelevant, that may not

25     matter - but has lied about a central matter, then you may wonder or you

Page 7391

 1     may consider whether it is sensible to go on and say never mind all that.

 2     We'll just look and see whether - this is what the Prosecution do -

 3     whether in fact this witness has said and I deal with command structure

 4     or whatever it happens to be, that Fatmir Limaj was at the centre of a

 5     particular structure in the Pashtrik zone or wherever it happens to be.

 6     And we say it's that jump, that leap from saying we can as it were

 7     accommodate the lies or the confusion that in this situation we say

 8     requires a much more strict scrutiny, and we say in the end that many of

 9     these witnesses, if you decide they have lied, then you do not go on to

10     then say, well, we want to assess their prior, dealing with hostile

11     witnesses, their prior inconsistent statements.

12             And this is really related to paragraph 33 where you say:  "It

13     will be for the Chamber to determine what weight if any it will

14     eventually attach to either or both of these video recordings" - that's

15     of the two hostile witnesses I'm about to touch upon - "when it comes to

16     assess all the evidence at the final stage of the trial."  And you do

17     indicate that will demand the most careful scrutiny of the Chamber.

18             Well, it is in that context, namely the careful scrutiny of the

19     Chamber, that we suggest in the hostile category for example that the

20     careful scrutiny in the end should result in prior testimony not

21     supplanting or substituting actual testimony.  Whatever may be the

22     intentions of the Prosecution, it is oral evidence that should at the end

23     of the day in an exercise of this kind be dominant, and if you feel that

24     the current oral testimony is lies, then we say it's so significant.  And

25     because the conditions under which previous statements were taken are, we

Page 7392

 1     say, particularly, if I take the Shukri Buja statement in context first

 2     as an example, and I'll move on to Behluli.

 3             What you have to recall is that if you're going to use the prior

 4     statement to supplant effectively what's been said in evidence, then you

 5     have to look at how the prior statement was taken and the circumstances

 6     under which it was taken.  One of the most obvious observations here, and

 7     it will apply to many of these cases, is that once a person knows that

 8     there is an investigation into war crimes in an area in which the person

 9     himself or herself has exercised authority, what do you imagine goes

10     through the mind of that person?  That -- even if they're not summonsed

11     as a suspect, even if they're not charged with anything, they are going

12     to be concerned about their position and the potential risks that they're

13     facing once they realise that is the position.  Plainly, that applies to

14     Shukri Buja.  In fact, he was told during his prior interview at one

15     point that his name had come up.  So he was aware not just that this was

16     an investigation into war crimes but that his name had come up.  And

17     plainly he's not going to be asked questions because he hasn't got

18     anything relevant to say.  And therefore one's going to do the process of

19     assessment about how much store you set of an interview conducted in

20     those circumstances when -- if you've already decided or begun the

21     process of deciding that his current testimony is a pack of lies.  If his

22     current testimony is a pack of lies, then you have to reflect on whether

23     what he was saying in a prior interview may also be the same but for

24     different reasons.

25             But in any event, of course this does give rise once again to the

Page 7393

 1     issue which we've highlighted in the final brief, but it's a good

 2     example, a system known as proofing, because if you're going to make

 3     assessments about prior inconsistent statements, you need to know how do

 4     the changes come about.

 5             Well, as you know in this particular case and in a number of

 6     others, the process by which witnesses are proofed is not recorded as

 7     such.  You don't have a formal record let alone a video record of what

 8     actually happened here in this particular case when he came or was about

 9     to give evidence on this matter.  But this isn't the only case where the

10     material is lacking.  In other words, what has brought about the change?

11     It's surmise by the Prosecution what has brought about the change,

12     because their case is he told the truth in the prior inconsistent

13     statement, airbrushing out Fatmir Limaj, as they were putting it on one

14     occasion.

15             But what happened here was that the information that we got, that

16     is the Defence, came one day before he gave his evidence, and it was very

17     short indeed.  It merely indicated that he was not -- not going to be in

18     a position to say that the structure of the KLA was as described in the

19     prior interview and that Fatmir Limaj was not his commander.  That's all

20     it said.  Well, that's very interesting, but of course it don't tell us

21     much as to how that's come about or why he should be doing that.

22             And of course the letter that was sent of which you saw a part at

23     one stage indicated, and we've put it in the final brief as well, that

24     they knew -- the Prosecution knew full well because of the proofing that

25     he wasn't going to say that he'd said before or at least they thought he

Page 7394

 1     wasn't going to say the same as what he said before.  And it's very

 2     important, because it goes right to the heart of the very point that you

 3     make in your ruling about are we slowly sliding towards a situation in

 4     which the Prosecution essentially is just going to call anyone who is

 5     relevant in their eyes even if what they're about to say in their view

 6     isn't the truth according to them, because their view is there was a KLA

 7     structure and Fatmir Limaj was at the centre of it and so on.

 8             And what they said in the letter of the 14th of March, this is

 9     after he has been called, this year, it's these words:  "It was our

10     immediate impression that he was aware of what he had said in his OTP

11     interview, that he intended to depart from what he had previously stated

12     and was anxious about being confronted with his OTP interview in court."

13             Well, in -- we would submit in proper circumstances what ought to

14     happen on these occasions, firstly, there should be a proper record of

15     what exactly is transpiring between a Prosecution that have a very clear

16     picture of what they want to establish and a critical witness that they

17     now rely on none of his evidence but all of what he said in his prior

18     inconsistent statement.  Nothing could be clearer than an attempt here -

19     because they knew full well they were going to almost certainly, almost

20     certainly request that he be treated as hostile - is this very exercise

21     we say there should be a sanction on this sort of exercise.  The sanction

22     is if you're going to call a witness who in most jurisdictions, certainly

23     those of us who represent parties, are not supposed to call witnesses who

24     we do not believe are going to tell the truth, is that going to be the

25     standard here that a party is entitled to call a witness who they don't

Page 7395

 1     think is going to tell the truth and then say to the Tribunal, "You sort

 2     it out"?  You have then the obligation to as it were We're going to throw

 3     it up like confetti and see where it lands and you take the bits you want

 4     and the bits you don't want.

 5             Which is why we say this is a cherry-picking exercise of some

 6     magnitude.  And what happened here should never have happened.  They

 7     shouldn't have called him at all.  You wouldn't have been deprived of the

 8     truth through him because we say it is now almost impossible to tell what

 9     the truth is in his case.  And I'm afraid we're going to have to look at

10     the interview in a moment.  But before we do, there is one further

11     feature in this case, in Shukri Buja's case, that is very important.

12             If the question that you're being asked to decide - we say you

13     shouldn't have to decide and if it's going to continue in this way then

14     you should put a marker down that this is not a satisfactory process -

15     but if you're going to -- enter into that arena looking at what he said

16     before, may I just remind you of what he had said before.  And of course

17     it's triggered in the interview with him.  The OTP had already used this

18     witness before.  They used him, as you may recall, in the Milosevic trial

19     as a Prosecution witness in order to deal with not just the events of

20     1999.  In fact that is what he said in evidence he dealt with.  But he

21     provided a statement, and one of his objections in this case was that

22     what happened then at the hands of the OTP was quite different to what

23     happened here.

24             On this occasion in 2001 - again, you've heard this material - he

25     was interviewed over a number of days.  He was provided with the record

Page 7396

 1     of that which he could see, and he signed it.  And he imagined the same

 2     process was going to happen on this occasion.  In fact it didn't.  As you

 3     know, it was a video recording and there's controversy as to whether he

 4     could open the CD or he couldn't.  But in any event leaving all that to

 5     one side, what did he say in the statement that he provided for the OTP

 6     in relation to the Milosevic trial?  In fact, he was dealing with his

 7     arrival in 1998.  He was dealing with who he came with.  He was dealing

 8     with command structures.  He mentions Fatmir Limaj and so on.  And as I

 9     asked him in cross-examination, he was able to give the seven zones with

10     the areas of responsibility, the zone commanders, and so on.  All of that

11     before we ever get to 1999.  It is specifically, and I can give page

12     references, I know it's not an exhibit itself, but the material within

13     this statement is before you.

14             What he said in the Milosevic statement is entirely consistent

15     with what he is now saying in this case about the command structure or

16     lack of it in relation to this period of time, 1998.

17             So before you decide that you would rely on the video recording,

18     if you're going to, you have to remember that before that he made a

19     statement which is inconsistent.  So what do you do?  Choose the one in

20     Milosevic because -- or not.  Or decide, well, no, we won't use that one

21     because in fact he was giving the evidence for a different purpose.  Is

22     therefore the truth to be decided on the purpose for which you give the

23     evidence?  I think not.  The decision about the reliability of a witness

24     cannot depend upon that kind of criteria.

25             Now, what I would ask to happen, I'm sorry it's a slightly

Page 7397

 1     detailed exercise, but in view of the way the Prosecution are in fact

 2     asking you to rely, we say not to rely, on the previous statement, could

 3     I ask you to look finally at parts of what he said.  Now, you will recall

 4     that I originally addressed you about some of this, and some of it's in

 5     the final brief.  And with the Prosecution's kind help if we could have

 6     -- it's exhibit P160 and I just want to go back to some pages before the

 7     ones that are referred to in the final briefs.  It's page 22.  If that

 8     could come up on the Sanction please.  It's page 22 at the bottom.  I

 9     just want to go through this because you will see at once.

10             Now, if it could be enlarged so it's easier to read at the bottom

11     of the page.  It should be "You mentioned in your earlier statement."  I

12     don't know whether that's easier to read.  Yes.  "You mentioned in your

13     earlier statement."  There.  If that could be enlarged.

14             Now, this is in fact a reference to the statement he gave to the

15     Tribunal in relation to Milosevic.  It's not spelt out but that's what it

16     is.  And the whole question is:  How much reliance are you going to place

17     on this interview?  Even if you do look at it and decide that is your

18     function is to pick your way through it and decide this is a satisfactory

19     basis, because we will see -- think you will see.  It's rather like the

20     sea.  It shifts.  The meanings are not entirely clear, and it's not a

21     situation, we say, that even this interview and I don't want to take it

22     out of context; of course you will read eventually once again no doubt

23     the whole of this video-recorded interview.

24             He is dealing therefore with a time when Fatmir was the leader

25     the unit that entered Kosovo.  Then at that time were specific duties

Page 7398

 1     assigned to him.  You see that's the next question, "particular or

 2     specific duties."  So for DB read investigator.

 3             "SB:  No, no.  Until we arrived in Drenica there were no specific

 4     duties for us, that is for those in the group...  After we arrived in

 5     Drenica, then Fatmir Limaj was appointed...  to lead the unit."  Now

 6     that's what he says there but you will in fact see what he means or

 7     perhaps what he means by that at the top of the next page, 23.  Perhaps

 8     we could have page 23, please, top half enlarged.

 9             MR. NICHOLLS:  Mr. Younis says it's going to take a moment

10     because you had only envisaged 22.  You only told him page 22.

11             MR. MANSFIELD:  I'm sorry it may have been a misunderstanding.

12     It was a start page.

13             MR. NICHOLLS:  It will just take a moment to pull up 23.

14             MR. MANSFIELD:  If it's too difficult, I'll...

15             Ah, thank you.  The same is going to apply to successive pages, I

16     hope, but if gets too complicated I'll carry on without it because the

17     points are very simple.

18             At the top of page 23, he continues:  "That is, in fact Fatmir

19     Limaj led the unit... errr... until we arrived at Klecka... and I have

20     always counted him as my first commander on this basis.

21             "When you arrived in Drenica, were you still together as a

22     group," and so on; he says "Yes."

23             Then a little further down he's describing what I have in fact

24     already described today.  So there is an interpretation of the whole of

25     this interview, we say, that's akin to the description I've put to you of

Page 7399

 1     an organically growing organisation that is really a protective one.

 2             He says further down "Perhaps in Drenica, in fact in the villages

 3     where we saw KLA soldiers... we spread out among the houses...  We stayed

 4     here.  I don't know, several days.  We were given the order, that is, to

 5     leave and to organise in the area as it was then called."  He then deals

 6     with the various areas on the rest of that page.

 7             At the bottom of the page he is asked who gave the order.  "Who

 8     issued the order that you had to go to these other areas?"

 9             Now, I'm turning to the next page.  If there's equal difficulty

10     about this next page, 24, I'll just carry on for the moment.

11             What he actually said on the next page was:  "We did not know who

12     issued the order, but in fact the order was conveyed...  by Hashim

13     Thaqi."

14             Now, there is then a question and an answer which we say is very

15     important:  "Did Hashim Thaqi mention to you the fact --" thank you.  I'm

16     just at the top of that page.

17             It's important because if it is to be said this is not -- this is

18     an interview and we say it's very common in these interviews.  It's clear

19     what the questioner has in mind.  It's clear in a sense what the

20     Prosecution theory is because here it comes out and it's sometimes quite

21     subtle.  "Hashim Thaqi mentioned to you the fact that Fatmir Limaj would

22     be commander of this unit that was to go to...  that area."

23             The answer is no, not yes:  "But we in fact knew Fatmir Limaj to

24     be the most competent person because he knew the lie of the land."

25             So when he says on the previous page I've always counted him as

Page 7400

 1     my commander, the counting him always the commander is because he was the

 2     most competent person because he knew the lie of the land.  Is this

 3     really going to be used to indicate the kind of structure and the kind of

 4     command that the Prosecution require for this indictment?

 5             And then it's "Fatmir Limaj was assigned the task of coordinating

 6     work."  Well as we saw in the expert's reports, coordination is not quite

 7     the same as having a command structure in the way that Mr. Churcher and

 8     others have described it.

 9             "While I had to coordinate with Fatmir...  That is in fact how

10     the organisation would work because there'd not been any organisation for

11     some time."  Well, we agree.  "That is, any organisation of units.  And

12     information had to be brought to Fatmir, and then from Fatmir to the

13     General Staff, and they we could then come back to us with what we had to

14     do next."

15             "This task that was assigned, that is assigning Fatmir as leader

16     of the unit and appointing you to go to an area...  were you given the

17     task of staying there?"  Well, that isn't exactly what he'd said but

18     never mind.  "Were you giving the task of staying there?  Were you to set

19     up a base, were you to start to organise yourselves... whatever kind of

20     organisation was possible?"

21             "Fatmir Limaj was appointed to go and set up in Klecka, in the

22     village of Klecka."  So nothing about being a regional commander.

23     "Whereas I informed, that is Hashim once again," he informed Hashim,

24     "that we would set up in the village" and so on and he names the village.

25             "Excuse me, did Hashim inform you that you would set up?"  So the

Page 7401

 1     questioner finds that rather unacceptable.

 2             But Buja then goes on to say, "No, no, I informed him."

 3             Questioner:  "You asked...

 4             "And in fact...  that...  we were organising there."

 5             And they top of the next page 25:  "That is in fact at that time

 6     ... they could not order us to 'go here, go there,' because they could

 7     not know where we could go, but we decided to which houses I could go and

 8     where I would be safe and where I could start organising."  This is

 9     precisely in line we say with the organic growth of a protective force.

10             "So," says the questioner, "you had a kind of priority in

11     deciding as you judged yourself and then...  you would decide where..."

12             "Buja:  We were independent to decide where to set up, that is in

13     which family."  Precisely the point that (redacted) makes because we

14     could not know all the families.  And then the rest of that page he's

15     dealing with matters related to that.

16             But I turn to page 26.  The questioner at the top of 26 goes back

17     to the question of assignments that you mentioned.  Now, it means that

18     each person was assigned top a certain area.  These air assignments were

19     given out by Thaqi and Drenica.

20             And then he's given this answer:  "In fact guidelines were not

21     made in the form of orders because there was no...  but we were told we

22     were to go, that is where we were given an area, but we went there

23     because there was no organisation."  And then he deals with reporting

24     back to Fatmir on that page.

25             And then he says further down:  "When I returned, that is in

Page 7402

 1     fact...  in the beginning, there wasn't at Klecka but three soldiers

 2     went, and stopped in another place."

 3             And at the bottom of the page he's saying in fact, "When we

 4     arrived in Klecka that is there were only two of us.  There was myself,"

 5     and he names someone else.

 6             Now, these are all pages which -- I won't go through the rest at

 7     this stage, but they eventually lead to the passages which originally are

 8     in the final brief where he emphasises against and perhaps I could just

 9     come to page -- if we could go to page 32.

10             On that page 32 he's dealing with the absence of a headquarters.

11     He's dealing with small units of ten soldiers.  He repeats in the

12     organisational sense there was no headquarters.  "It was called a

13     headquarters but we didn't function as a headquarters.  People came and

14     registered, signed up as KLA soldiers," and so on.  It's all a

15     description of something quite different from the one that the

16     Prosecution was striving for.

17             And of course this is very close to the position on the next page

18     where we have the suggestions, as we say, and the pressure being put on

19     him to come up with a structure and to come up with what effectively has

20     become the basis of the Prosecution case, because on 34 at the top -- in

21     fact it's a continuation of what has happened on 33, but if we could have

22     34 at the top.  The questioner is anxious to find out the organisation of

23     the digging of trenches, and then at the top of 34 he says effectively

24     this is the questioner but:

25             "Regardless of the question of whether there was fighting or not,

Page 7403

 1     I would like to emphasise ... the moment when there was a kind of

 2     structure in that zone in that sense, I mean.  In April 1998 there were

 3     regular weekly meetings at Klecka."  And this is the questioner saying

 4     "as far as I know."  There isn't were there; we say there were.  "Did you

 5     take part in these regular weekly meetings?"

 6             Answer isn't yes because he's supposed to be coordinating with

 7     Fatmir.  The answer is "No, because I wasn't part of the command of

 8     Klecka.  There were special" -- sometimes the words have been

 9     misinterpreted, but "There were special occasions on which I did take

10     part."  He instances one in May.  And then he -- further down the page at

11     the same time:  "When I was, that is in -- in the area of Kroimire I

12     helped.  At that time you could not.  We had not even defined companies

13     or battalions, only had posts.  I helped, that is to survey positions,

14     trench, bunkers and other things.  And I had a support from Fatmir or...

15     errr... the General Staff."

16             And we get to a passage here which is quite remarkable since the

17     Prosecution say you can rely on this because what he is saying is:  "I

18     thought Fatmir was a member of the General Staff and also most people

19     thought that I was a member of the General Staff."  Well, you can see

20     straightaway that the conditions under which both they were operating at

21     the time and certainly within this interview that he is plainly wrong

22     about his perceptions and there was a time in the cross-examination -- in

23     the examination-in-chief where I objected to some of the questions being

24     put when it's not entirely clear the basis on which he had his

25     information.

Page 7404

 1             And it's on page 36 - I don't ask for it to be put up.  It's

 2     referred to in the final brief - when over and over again the

 3     investigator is asking the same question about the elementary structure

 4     and the diagram that is drawn we say is a nonsense.  In other words, that

 5     it's putting Celiku as essentially just below the General Staff with all

 6     these other points around.

 7             Now, I'm just going to ask one rhetorical question.  If any of

 8     this makes sense, then why when the zones were established in June, July,

 9     and on into the autumn, if he had, that is Fatmir had, as is supposedly

10     described or hinted at here some -- in the diagram a position of command

11     at Klecka over the region, why wasn't he made the zone commander?  That

12     would be the obvious thing.  He'd be zone commander at that point.  And

13     the structure that they've got which is effectively -- there are two

14     zones on this structure because there's the Nerodimlje zone on the

15     right-hand side and the Pashtrik zone on the left-hand side.  We say in

16     fact that's not how it worked at all, and it is erroneous to establish

17     Limaj in that way at the centre or core of the whole of this.

18             So these diagrams and these answers that he's given in this

19     interview which is a fairly lengthy one - and I'm not going to go through

20     the rest; we've itemised the parts of it where it's clear he is in

21     error - he's in error originally about his perceptions, but in fact one

22     has to ask the question whether the description he really was giving is

23     in fact consistent with the description that Fatmir Limaj is giving of

24     people going to the areas they know best, setting up where they know best

25     and asking people who they can trust.  And you will remember that part of

Page 7405












12   Blank page inserted to ensure pagination corresponds between the French and

13   English transcripts.













Page 7406

 1     the exercise was that one man is responsible for the next man.  In other

 2     words, you only bring in people who you can trust.  So it's organised

 3     horizontally, not vertically in the way that that is suggested.

 4             So we do say that these -- of course principally, we say, he can

 5     be forgotten, because effectively if he's going to be regarded as telling

 6     a pack of lies here in -- to you, and we say without the as it were

 7     due-process guarantees let alone the kind of measures that are taken in

 8     civil jurisdictions whereby the whole matter is governed by a judicial

 9     process from the beginning and isn't in the hands of one of the parties,

10     then without that it's entirely unclear what the pressures must have

11     been.  But in any event, one has to go back to his original Milosevic

12     statement, by which I mean the statement he provided in the Milosevic

13     case.

14             Now, in the same breath, if I may just deal with the other

15     hostile witness I can deal with it hopefully not in quite such detail,

16     but there are some interesting answers here which again are nonsensical.

17             This particular witness, Behluli, is described in the final

18     submissions by the Prosecution as being someone who is very careful about

19     what he said.  But once you begin to look at this witness you will see

20     that is far from the case.  And I've suggested that what is put is part

21     of the structure of the KLA and the diagram in this last interview with

22     Buja is nonsense.  There's a certain amount of nonsense in this video

23     recording of the Behluli prior statement.

24             Could I ask again kindly for the assistance.  I think it should

25     be page 19, I hope I -- yes, page 19.  Thank you very much.

Page 7407

 1             Page 19 is coming up on the Sanction this is part of the -- but

 2     it's the same exercise.  It's just to look at some of the things he's

 3     saying which you now know is nonsense.

 4             Can I set the -- I'll just wait for it to column.  Page 19 is

 5     coming up.  Okay.  So sorry.  Thank you.

 6             Now, at the top there it starts with the word "Battalion."  Can I

 7     just read the bottom of the previous page to save coming up.  This is

 8     what he's saying:  "In the beginning because of the very limited numbers

 9     there were not such things as battalions.  Supply of weapons grew the

10     number of -- well, concerning April 1998 there was here --

11             THE INTERPRETER:  Would you please slow down when reading.  Thank

12     you very much.

13             MR. MANSFIELD:  Speaking 1998.  In Klecka there was general

14     headquarters but with the time passing there were other points.  UCK.

15     They were all UCK points sets up.  As the number of people, UCK numbers

16     grew so they set up as more people came in and joined."  Nothing

17     remarkable in any of that.  And then there's a further translation

18     underneath and you will remember how these came about.

19             But then the investigator says okay, but let's start with:

20             "Can you tell me at this time in April-May 1998 what area was

21     that area -- was in Kroimire was the responsibility of" --

22             Well, what I think he's saying or trying to say is whose

23     responsibility was Kroimire.  And he says the Pashtrik zone and then he

24     says what it covers.  Then he bit further down on the same page:

25             "Well, it wasn't generally a common knowledge that there was such

Page 7408

 1     a thing as the Pashtrik operational zone.  In fact, of course, certainly

 2     in April-May 1998 the zone wasn't in existence.  But then everybody knew

 3     what the Kroimire was supposed to cover.  Probably somebody hired up Luan

 4     or Shukri.  They knew something and maybe this was in the paper that was

 5     as Pashtrik operational zone.  But once we get this name Pashtrik

 6     operational zone," which is later, "then I come to know about the

 7     Pashtrik operational zone."

 8             Now, the question is:  Did he come to know about the zone and

 9     what does he say about it?  And he deals with the protection on that

10     page.

11             Could we then go to page 21, please.  And then he says and he's

12     dealing still with the Pashtrik zone and responsibilities, he's saying --

13             THE INTERPRETER:  Could the counsel slow down, please.

14             MR. MANSFIELD:  Top of the page:

15             "Shukri Buja must be the most important person about it.  I know

16     that we cooperated with them.

17             "Okay.  Where was the -- the General headquarters for the area?

18     We can now call it the Pashtrik operational zone."

19             And he, that is the witness, says:  "You are talking about 1998."

20             "Yeah, still talking about the spring of 1998."

21             He says, "The General Staff was in Klecka."

22             "Q. In Klecka?"

23             "Yes, in Klecka.  Fatmir Limaj was there, the commander of this

24     zone."

25             It's complete nonsense.  As you know.  He wasn't the commander of

Page 7409

 1     the Pashtrik zone which didn't exist at that time anyway.  And there

 2     wasn't a general headquarters in Klecka for that area.  He - that is,

 3     Limaj - was in Klecka, as you know.  I appreciate that is what the

 4     Prosecution would obviously like to end up with.

 5             And he says:  "Yes, the general headquarters was located in

 6     Klecka."  Okay.  And he repeats:  "Fatmir Limaj was the zone commander."

 7             Fatmir Limaj not only wasn't on the General Staff, which was one

 8     of the problems we've already encountered, he wasn't even the zone

 9     commander.

10             "Okay.  Was this already when you joined in April of 1998?  Was

11     it clear to you that headquarters in Klecka?"

12             Then he says "No."

13             "Okay.  When -- when -- when -- when did you learn about this

14     bigger -- bigger or uh like general organisation of the KLA, general

15     organisation in this zone."

16             And then he deals with coming to know about it later.  And at the

17     bottom of the page as regards the organisation, "It was here.  I heard

18     later that the General Staff was in Klecka."

19             And on page 22, and I'll end with this particular one, he repeats

20     the same, we say, errors and they are substantial if you're going to rely

21     on this as a basis for determining command structure, armed conflict and

22     so on.

23             Towards the bottom of page 22, having dealt with the numbers of

24     soldiers increasing, "Do you have any idea at this time who was the

25     supreme?  Was there a Supreme Command of the KLA in Kosovo?"  So you can

Page 7410

 1     see again what they're striving for and the witness must understand what

 2     they're after.

 3             So he says, "Yeah, as far as I -- for the Pashtrik zone is

 4     concerned I know very well that Fatmir Limaj was the commander."

 5             Now I pause for a moment to try and be realistic about this.  So

 6     what is the Prosecution saying?  You can forget the lies in court; we can

 7     just rely on this interview.  But actually, that we don't rely on.  So

 8     that that isn't accurate.  He's got it completely wrong.  So once again

 9     we say it's the cherry-picking exercise even at that level as to whether

10     this is a reliable interview even on the detail.

11             And therefore we submit that in these two cases not only are they

12     both being regarded as hostile and therefore we say the previous

13     inconsistent statement should bear little or no weight, the question that

14     you set in the ruling, but in any event if you start looking at it you

15     can start recognising what the inconsistencies are and what the plain

16     errors in relation to that.

17             Another example, we say - moving from hostile witnesses.  I

18     indicated he is in a category of his own.  I can deal with it quite

19     quickly - is Luan.  Now, if there is any cherry-picking in this case this

20     provides the classic example, because in this instance this particular

21     individual has been accused by no less than six different witnesses.  I'm

22     not going to read out their names.  They're in the brief.  One of them,

23     however, is L-96, who is of particular relevance in relation to

24     observations about Fatmir Limaj.  And essentially we describe him in our

25     final brief, that is Luan, that if these witnesses are dealing the truth

Page 7411

 1     about Luan, he is a the gate-keeper, basically.  He is the man according

 2     to them who is absolutely essential and crucial in kidnapping people and

 3     for that matter interrogating some of them before they're brought from

 4     Kroimire, his area, to Lapusnik.

 5             What's the Prosecution's position on this?  You might have

 6     thought that they would have worked this out before he was called.  We

 7     say in a situation such as this, rather like hostile witnesses who they

 8     almost certainly anticipated would be, this is a witness who should have

 9     had his status determined such that when he was called it was clear to

10     everybody the basis on which he was being called.  Because there are

11     cases plainly and Your Honours will be aware of them in domestic

12     jurisdictions where somebody may for example do a deal in a common-law

13     jurisdiction turn Queen's evidence and so on, as it's called sometimes.

14     But in any event the meaning is clear.  In other words, if you come and

15     help us and accept your responsibility, it's possible that your sentence

16     won't be as severe or there may be other benefits.  And it's all sorted

17     so everybody knows.

18             To not sort this one we say is an abrogation of responsibility.

19     So what the Prosecution really are doing is saying once again no, no, no.

20     It's not us it's over to you.  You sort this one out.  Because the

21     remarkable thing is when he was asked in his evidence about these

22     matters, these allegations, he denied them in chief.  What did the

23     Prosecution do?  Did they ask to treat him as hostile because he wasn't

24     telling the truth?  These are not peripheral matters.  We're not down to

25     the colour of somebody's socks here.  We're dealing with -- we're back

Page 7412

 1     into dealing with central allegations in this case, the very allegations

 2     you're dealing with in relation to Fatmir Limaj.

 3             No, it would appear because there's no other interpretation and

 4     of course this isn't dealt with by the Prosecution satisfactorily at all

 5     other than to say oh, well, yes, well, he may have been alleged to have

 6     done these things but just overlook them when it comes to you know his

 7     own involvement in everything and rely on everything he says about other

 8     people.  Well I think in everyday life you would be very dubious about

 9     doing that.  If you knew that somebody you were talking to was telling

10     you lies about themselves in order to protect themselves, you would rely

11     on their word when they start talking about you or talking about someone

12     else, neighbours your close friends?  I don't think so.

13             So the Prosecution appear to accept his denial.  They don't

14     challenge it.  There's no sanction against this man.  He's not charged,

15     nothing.  Not sitting in the dock behind me.  Why not?  Inconvenient?

16     This Tribunal, we say, should not be governed by convenience.  And should

17     not be asked to govern by convenience.  And we say once again, between

18     like a hostile witness and we're going to put it shortly in this case.

19     Once you have decided that somebody is seriously lying to you here in

20     this courtroom, rather like a hostile witness is, that's an end of it.

21     No going on and deciding Well, we'll look at what he says about the

22     command structure.  We'll look at what he says about Fatmir Limaj.

23     Because once again the Prosecution are saying, well, he hasn't blamed

24     anybody else.  Too clever for that.

25             The position with this witness is, as I've indicated with others,

Page 7413

 1     he didn't realise he might be in the frame when he's being questioned?

 2     He didn't realise there might and problem later on?  He didn't realise it

 3     might be important to set up someone else in authority in case the buck

 4     stopped with him?  So you can begin to see how undesirable it would be

 5     for this man to be elevated in any sense to start providing corroboration

 6     for either of the two hostile witnesses or for the hostile witnesses to

 7     be providing corroboration for him.

 8             May I turn to the question, therefore, the third category of

 9     material being used by the Prosecution.  And I start with and here of

10     course there will be hieroglyphics being used.  L-64.  I just pause.

11     L-64.  What were the Prosecution doing calling L-64 at all?  He's almost

12     but not quite in the same category always the other witness I've

13     mentioned who the Prosecution have virtually ditched now.  There could

14     not be a more disreputable, dishonest witness than this one.

15             You may recall, I'm sorry it took some time that I cross-examined

16     L-64 for a considerable period of time, because there's almost no

17     criminal activity that he hadn't been engaged in one way or another, well

18     before he ever supposedly told the truth about this case.

19             I mentioned just some of them.  You will probably remember the

20     high points; his own drug addiction; His drug dealing; his arms dealing;

21     what was found on his premises; and the -- I suppose the high-water mark,

22     certainly for judging whether this is a man whose word bears any

23     relationship to the truth, is the finding of a certain quantity of

24     powdered material otherwise known as heroin.  What was his explanation?

25     It's almost like blaming your grandmother.  He said no fertiliser to you.

Page 7414

 1     That's what it was.  Oh, I think it came to Canada.  This is a man who

 2     will say anything to get himself out of what he perceives to be a

 3     troublesome situation.

 4             He's summoned as a suspect for the questioning.  So his antennae

 5     must have been six feet out of his head realising -- because by that

 6     stage, locked up he may not have been, but the risk he was at, given that

 7     as you know now he had involved his family or at least his family were

 8     involved in certainly the drug side of it and also allegations of

 9     violence towards a member of his family.  So here is a man who really

10     engages in a series of activities that put him beyond the pale.

11             And if up need corroboration for essentially a dearth of truth in

12     this man's account you only have to look at his diary.  Now, his diary is

13     P169.  His diary is used by the Prosecution no less than -- I've counted

14     at least eight times in their final brief.  Paragraphs 45, 53, 56, 60,

15     63, 69, 93 and 110.  Very interesting that the diary is used because you

16     have to then consider if the diary is being used to support this witness,

17     what's the most obvious thing you would expect to be mentioned in this

18     diary of important and significant events in 1998 that he's supposed to

19     taken part in?  An alleged prison camp in Lapusnik.  He hasn't really got

20     explanations for some of these omissions.  They're rather glaring.  As

21     far as Fatmir Limaj is concerned, the most glaring omission which goes to

22     the heart of what the Prosecution are saying against Fatmir Limaj is that

23     in some way or another on the 15th of May is the suggestion that Fatmir

24     Limaj acknowledged at a ceremony in Lapusnik that he, Fatmir Limaj, was

25     effectively in charge of the region.

Page 7415

 1             Well, if you look at the diary, I don't ask you to do it now, I'd

 2     ask you to look in May.  It's dated.  The 12th of May is mentioned.  The

 3     14th May is mentioned. The 21st of May is mentioned.  The 29th of May is

 4     mentioned.  Interestingly, absolutely no mention of Fatmir Limaj coming

 5     to Lapusnik and saying I'm the boss.

 6             So once again just looking at that document alone it's rather

 7     like looking at (redacted) as an indicator of where the truth

 8     lies in this case, that a diary is a particularly salutary experience in

 9     terms of what he did and didn't do.  And it's in that diary on page 17

10     although he was a little unwilling to admit it when I put it to him

11     without showing him the passage he admits to beating the living daylights

12     out of two prisoners in a bunker.  Is this the kind of person you think

13     may be telling you the truth?  Although we say fairly little is said

14     about Fatmir Limaj, but the little that is said in evidence about his

15     command position is just not satisfactory.

16             I'm looking at the clock.  Is this convenient or would you like

17     me to go a little longer?

18             JUDGE PARKER:  It will be an excellent time, if that fits your

19     address.

20             MR. MANSFIELD:  Yes.

21             JUDGE PARKER:  I think we have got to a total of five or six

22     redactions of that name.

23             MR. MANSFIELD:  [Microphone not activated]

24             JUDGE PARKER:  And the consequence I'm afraid is there must be

25     half what hour for the tape to be replayed and cleared.  So we will

Page 7416

 1     resume at 6.00 then, Mr. Mansfield.

 2                           --- Recess taken at 5.30 p.m.

 3                           --- On resuming at 6.02 p.m.

 4             JUDGE PARKER:  Yes, Mr. Mansfield.

 5             MR. MANSFIELD:  Your Honours, I was dealing with the category of

 6     -- I've given the term victim-survivors, having dealt with L-64.  There

 7     are in fact another six of these.  I'm going to deal with them in some

 8     cases as a group, but there are distinctions.

 9             The first of this further six in the group, L-23, Ivan Bakrac and

10     his father.  This provides -- we put it first in the final brief and I

11     put it first now certainly in relation to the rest of this group, because

12     remarkably yesterday, the Prosecution still adhere to this extraordinary

13     alleged identification.  I want to go a little more slowly with this one

14     because it's a demonstration of how you may in fact trim evidence when

15     you are convinced that your evidence is going in the direction you want

16     it to go in, in other words, you see what you want to see.  So anxious

17     are they that they have really missed, the Prosecution, the central point

18     here, and I'll come to it in a moment.

19             What happened is that when he arrived here at court, this is

20     touching once again on this we say procedure which has no due-process

21     protection, it's the proofing procedure, for the first time he explained

22     that he had seen the person who he identified as the commander of the

23     camp, which of course may not be the commander of any other area but

24     that's how he was describing it, on the Internet.

25             Now, the question that has to be posed, but of course we don't

Page 7417

 1     know whether it was during the proofing session because it wasn't fully

 2     and properly recorded.  The first question you would want to ask as a

 3     Tribunal is the question, well, if you have identified Fatmir Limaj on an

 4     Internet photograph -- I leave aside when that happened because as the

 5     Prosecution have conceded there is a confusion as to when it is claimed

 6     it must have been seen, either in 1998 at the time or as he, Ivan himself

 7     says, 1999.  So there is a real difference as to when that happened

 8     because he's linking it to 1999 because that's when they obtained a

 9     computer, so it's unlikely to have been before.  However, I'm not going

10     to spend time on when he claims he originally saw it.

11             If he did see it either in 1998 or 1999, your question would be,

12     well, why has it taken you until 2005 to mention it?  Now, there is no

13     answer to this.  There is no explanation because it's worse than that.

14     It's worse than not mentioning it till he gets here and having no real

15     explanation as to why he didn't mention it till he got here.

16             He was seen by the investigating authorities on the 10th and 11th

17     of January, 2003, and he knew then that that's what they were

18     investigating.  So the most obvious thing if he is identifying, as far as

19     he's concerned, the most important person in relation to the camp as he

20     describes it, why doesn't he tell them?  Oh, it's all right.  I can tell

21     you who it is.  I've seen it on the Internet.  So has my dad, as it

22     happens.  Something like that.  It's the obvious thing to do.

23             His answer to you about that, and he was asked by the Prosecution

24     as to why he hadn't told the investigators that in 2003, was that he

25     didn't have explanation.  He didn't think it was important.  Well, it's

Page 7418

 1     not adding up, as you may begin to realise.

 2             What we say has happened here, and this is the theme that

 3     attaches to many of these in this group, that is the six victim-survivors

 4     that the Prosecution use one way or another in relation to Fatmir Limaj,

 5     is that Fatmir Limaj, as you know from the evidence, clear,

 6     incontrovertible evidence, was on television on many occasions.  He was a

 7     public figure.  He was known.  I concede not so much in 1998 and 1999 as

 8     2000, 2001, 2002, and the further it gets from the war the more he is in

 9     the public eye.

10             And what may have happened here is that there has been a

11     discussion about the name, but more particularly what I'm going to

12     suggest in his particular case has happened, he's identified a uniform,

13     not a person.  The reason we say this is that the Prosecution have

14     forgotten what he told them, the man who he says was the commander of the

15     camp, his description.

16             I'll give you the transcript reference for this.  It's T1430.  He

17     was asked to describe to you the person who he describes as the

18     commander:

19             "Can you describe his hair for us?"

20             "Yes.  He had longer, slightly longer hair combed back with some

21     grey in it."

22             This is the key question at this reference T1430:  "And did he

23     have any facial hair?"  You will remember the Prosecution made great play

24     about how somebody may be confused if the person had a beard and then

25     they saw them in a lineup with no beard.  Well, that's not the point.

Page 7419

 1     The person he says he saw as the commander had no beard.

 2             "Did he have any facial hair?"

 3             "No.  He was clean-shaven."  In fact he'd already given a

 4     description not dissimilar.  As I've already indicated he was seen in

 5     January 2003.

 6             So what has happened here is if he's right, he's already seen the

 7     Internet photograph.  So when he's shown a photo spreadsheet which has

 8     got Fatmir Limaj on it with no beard, and apparently the person he saw in

 9     the camp had no beard, how does he get confused because of the person in

10     the Internet with a beard?

11             You will appreciate at once what the Prosecution are saying here

12     has absolutely no foundation.  In other words, this is not a witness who

13     has, as it were, seen somebody with a beard and when he's confronted with

14     photographs of the same person without a beard is therefore unable to

15     identify, because this is compounded three times over.

16             So the clean-shaven commander, and it's true in evidence he said

17     who had a camouflage uniform, which of course is in the clip on the

18     Internet, but he goes on here to say, "Just as everybody else had."  The

19     only distinction he said was that his was neater.  Whoever this person

20     was that he's describing.

21             So he's provided with the photo spreadsheet with Fatmir Limaj's

22     photograph on it and doesn't identify Fatmir Limaj, the clean-shaven one.

23     He is shown it again - so that's twice - here, but more important than

24     that, he's actually asked to look around this courtroom, and he still

25     doesn't identify Fatmir Limaj, and the Prosecution want you again to

Page 7420

 1     cherry-pick your way through this and rely on the own one he has picked

 2     out which has the beard and is not clean-shaven in the Internet short

 3     procession that is there.

 4             So we say here that this is an important non-identification.  In

 5     other words, he's not in -- it's not just that he's not in a position.

 6     He is not identifying Limaj as the person he describes as the commander

 7     of the camp.

 8             So that's one more of the six, we say.  And this is why we say so

 9     thoroughly that the Prosecution, at the rock bottom, have no rock, but I

10     won't continue with the rest of the phrase.

11             Now, we move to the next series of witnesses who are L-4, L-6,

12     and L-10, and perhaps I can include also L-7.  So it's a group of four.

13     And again to try and save time, may I just pick out the common features

14     here which give rise to serious question marks over these witnesses.  And

15     one appreciates plainly that where one or an individual may have been

16     through a traumatic event it may be very difficult to remember detail.

17     But it's much, we say, more significant than failure to remember detail.

18     The common theme in this little group, that's 4, 6, 10, and 7, and there

19     are some common features, firstly, there are serious inconsistencies

20     between this group here, some of them not all, and what they said in

21     previous statements.  In particular, the absence on -- in some of these

22     cases of any mention of a commander or Limaj or Celiku when they're first

23     approached.  So in other words, it's one thing to overlook a detail about

24     the nature of the compound where you are or the exact order of events.

25     It's quite another to fail to mention the person who it is suggested was

Page 7421

 1     either in charge of the camp or in charge of the area of responsibility

 2     under which the camp came.

 3             That's one point that arises with these witnesses.  In particular

 4     so it's known, the ones where there is and inconsistent prior statement

 5     in relation to this is L-4 and L-10.  Both fall into that category.

 6             Therefore, I'm not suggesting, because I'm trying to be

 7     consistent about this, that the prior statements become the truth.  I

 8     don't ask you to do what I'm suggesting shouldn't happen in the hostile

 9     witness cases.  Therefore, all one's doing with the prior statement is

10     saying that if in fact when they come to identify Fatmir Limaj he was the

11     person concerned, you have to explain in some of these cases why this was

12     never mentioned when they were first approached about these events.  So

13     it becomes a serious credibility issue in the way that we suggest it

14     should be for hostile witnesses.  So that's one area of concern.

15             What L-4 attempted to do in this area was to blame the

16     interpreter because he doesn't, in his first statement, even mention a

17     commander at all.  Well, that doesn't, again, add up that the interpreter

18     somehow or another has overlooked the mention of the word "commander,"

19     let alone any name attached to it.

20             There are a number of other inconsistencies to do with who took

21     him or claimed to have taken him to see the commander, whoever that was.

22     He's given different accounts of that, being sure of each one, that

23     they're different, different named people.  He gives different accounts

24     of conversations that he says he had with the commander, and these are

25     all specified in our final briefs, so I'm not going to take up time to go

Page 7422

 1     through all the inconsistencies.

 2             So it's not just the inconsistency in terms of not mentioning a

 3     commander or the name of a commander before.  There are others that

 4     should be added to this and accumulatively what he is saying in terms of

 5     Fatmir Limaj we say is not reliable.  But that's just one aspect of this.

 6             The other aspect is already touched on by the Prosecution is in

 7     our final brief and that is the process of identification, because in

 8     three of these cases, that is 6 -- L-6, L-10, L-7, there were no

 9     identifications before they came here of Fatmir Limaj, and what happened

10     when they came here is a dock identification.

11             This can be dealt with very simply.  Most jurisdictions are very

12     reluctant to admit dock identifications as bearing any weight at all, one

13     because it's obvious.  Somebody's sitting in the dock and is alleged to

14     be one of the perpetrators, although their three here.  But it's fairly

15     limited choice.  And certainly those who sit in front are not going to be

16     confused for the reason we're not in the dock in that sense.  So

17     therefore limited choice, dock identification is seen to be in a sense

18     predisposing the witness.  That's a very natural -- but it's compounded

19     here, because once again all of these witnesses, 6, 10, and 7, all admit

20     that they've seen, certainly by the time they get here, they've seen

21     Fatmir Limaj many times, many times on television, national newspapers

22     and so on.  He is a well-recognised and recognisable figure who plainly

23     occupies, hesitate to put it, centre stage but he's pretty close to the

24     centre of the stage in Kosovo, so that he is a name to conjure with, he

25     is a face to conjure with, and therefore the risk you have here is that

Page 7423

 1     people are identifying somebody who they've seen before, somebody in

 2     authority undoubtedly, and somebody who they think that since they've

 3     ended up here probably that's the person who they claim was the commander

 4     at the time or the person who they saw who was said to be the commander

 5     at the time.

 6             So in each of these cases, therefore, one needs to look very

 7     carefully to see whether they've mentioned a commander or the name of

 8     commander when they were first seen, and secondly, how they have come to

 9     identify and as you will see the identifications themselves are seriously

10     dubious given the context in which they happen.

11             There is, however, in this group of survivor witnesses somebody

12     who merits a little more attention, and that is L-96.  Now, I take a

13     little more time on this particular figure because you may recall when he

14     was opened, if I may put it that way, or when the Prosecution opened

15     their case, although not now, this particular witness was suggested to be

16     a central figure in this case.  In fact, it was put, he's the reason

17     we're all here.  Well, if that's right that he's the reason we're all

18     here, it's very interesting how he impinges or he doesn't impinge on

19     Fatmir Limaj.

20             I can dispose of the camp itself straightaway.  He provided you

21     with no evidence of Fatmir Limaj visiting the camp, being at the camp or

22     doing anything at the camp at all.  So if he's a central figure, he

23     doesn't place Fatmir Limaj centrally.

24             In fact, what it comes down to is a sighting, as you've heard

25     many times now, on the mountain at the end, and it's the Berisha counts,

Page 7424

 1     if I can put it that way.

 2             Now, there's a bold attempt to try and shore up this witness, but

 3     of course what's been glossed over is a serious deficiency in what

 4     happened when he came here, and we say once again this demonstrates:

 5     Every single time you start to look at the wall of evidence, the bricks

 6     are falling away, and this is another one that falls away.

 7             Now, he gave you, and if I can just go back to the

 8     cross-examination on this.  And I'm going to start at the end as it were.

 9     What he claims to you is that when he ran away, escaped from the

10     mountains, the Berisha mountains, that he -- and this will bear upon

11     whether in fact, of course, we say he ever saw Fatmir Limaj there or

12     Fatmir Limaj had anything to do with whatever it was that happened in the

13     mountains, he claims -- and the Prosecution don't really deal with this

14     because they can't.  You will recall he claims that what he did, and I

15     asked him to trace it on these plans or maps, I don't ask you to look at

16     them again, I hold them up, what he says he essentially did was he went

17     across country.  It's 40 kilometres, roughly speaking, back down to

18     Ferizaj and so on down in the bottom right-hand corner.  In that

19     direction.

20             And of course as he also admitted that if he's going to go like

21     that as it were 40 kilometres, difficult terrain, who is controlling this

22     terrain?  The very people who he claims have just avoided executing him.

23     So he's going through alien terrain on all fronts.  We say this is, and

24     to be blunt, a lie.  He didn't do that at all.

25             Now, if you find that he has lied, it matters not for what reason

Page 7425

 1     in one sense because it is a serious lie, but of course there are reasons

 2     why he may have lied, but once he's found to have lied thoroughly about

 3     what he did, you have to ask the same questions as you ask in hostile

 4     witness cases and in the Luan case, and in the, if I may put it shortly,

 5     the torturer case and so on and so on:  Why has he lied and what was the

 6     lie?

 7             The lie is that of course he did something much more logical, and

 8     much more practical and much more immediate.  On the 25th of July what he

 9     did looking at this same plan, it happens to be map 6, P1 map 6.  Now

10     what he did, he travelled a much shorter distance from the mountain as

11     depicted in this plan to a Serb base on the Peja road at Komorane.  Now,

12     when I put that to him, of course he denied that because he was saying

13     he'd gone across country.  And of course this is getting into very tricky

14     territory for him, was you may find that this particular witness in fact

15     was not wanting it known that he had very close connection with some

16     Serbs or his family did.  And you recall that there were questions asked

17     on that front, and to protect identity I'm not going to go through that

18     area.  But merely we say there's a very good reason why he didn't want to

19     tell the truth here.  He didn't want it known that in fact that what he

20     had done was to give himself up to the Serbs.  And he gave himself up to

21     the Serbs, we say, because he knew that he was in fact going to get a

22     better reception from them than anyone else.

23             And interestingly, whose hands does he end up in?  The very

24     person that in fact the Prosecution now suggest, I think almost entirely

25     shouldn't be relied on or at least only relied on in very limited

Page 7426

 1     circumstances.

 2             The interesting thing is that neither the person in whose hands

 3     he ended up, nor he, that is L-96, suggest that this particular Serb

 4     official practised any of the torture on him or even threatened him;

 5     quite the reverse.  So someone doesn't have to investigate whether

 6     anything was done to provide this particular report.

 7             Now, the report I'm mentioning is in our final brief but not the

 8     detail of it.  The report is dated, and you may have a record of it, the

 9     report itself, the 5th of August.  In fact, it is suggested in the report

10     that he came to the particular post in Ferizaj on the 1st of August.

11     Now, you begin working backwards.  You will see that there's a gap here

12     because he's supposed to have escaped on the 25th of July.  So we're

13     dealing with a number of days, the 26th, the 27th, 928th, 29th, 30th,

14     31st of July until we get to the 1st of August.  What is going on?

15             And of course as you read the report you begin to see that what

16     actually happened according to the report is that he went to that

17     roadblock or at least that position, that Serb position, because that's

18     what the report says he did, in Komorane, and the report indicates that

19     at that checkpoint he told them what had happened.  First account.  Now,

20     the importance of all of this is there is no mention of Fatmir Limaj or a

21     commander who actually exercised authority over the fate of (redacted).

22     It is inconceivable that if he knew -- because he spends time after the

23     war apparently looking for the man responsible -- that he would not have

24     been in a position straightaway.  And even if he didn't do it when he

25     gave himself up at the checkpoint.

Page 7427

 1             What then appears to have happened, and this explains the days

 2     that elapse between the 25th, not travelling across country the 40

 3     kilometres and so on and so on and moving about without his papers which

 4     was his explanation, is that he then is seen by officials of the state

 5     security service.  This is before he ever gets to Ferizaj.  This is in

 6     Pristina.  Who conduct a detailed interview with him.  Once again, as far

 7     as can be told there is no suggestion at any of these stages that he's

 8     mentioned Fatmir Limaj or a commander who had the power to decide on life

 9     and death for (redacted).  So that's the second stage.

10             It's only at the third stage that he is seen in Ferizaj by this

11     particular individual you know only too well and another.  He is then, as

12     it were, debriefed for a third time, and what is interesting about the

13     third version, as far as we're concerned, and again I'm not asking that

14     it's used as a substitute for anything, I'm merely indicating that if

15     he's going to say now or even later that Fatmir Limaj is the man he

16     identifies on the mountain as being the person deciding the fate of

17     (redacted) effectively, then how come he doesn't tell the authorities on

18     any of these three occasions?

19             It's actually even more complicated than that.  It's not that he

20     doesn't mention.  He doesn't talk about the incident at all in this first

21     report.  In other words, that halfway up the mountain a commander comes

22     along and issues orders, this is the implication, whereby people then

23     suffer the fate that is suggested.  There is no incident on the mountain

24     at all of a commander coming along.  It's just not there.

25             Now, this is not the day after he's been through a horrifying

Page 7428

 1     experience when, all right, you might forget something like that, you

 2     just might.  This is on the third occasion, and it's several days,

 3     possibly a week later, and there's not a hint of this incident let alone

 4     the commander, as I say.

 5             There is also another interesting difference.  Quite important,

 6     although perhaps not bearing directly on Fatmir Limaj.  What he's told

 7     the Serb authorities was that the group that left the camp was divided up

 8     at the camp, and the details of that, again, are quite different to what

 9     he's now saying.

10             Therefore, when one begins to even examine this particular

11     witness, you have to examine whether he's told you lies, we say he has,

12     about his movements; how it is that he hasn't mentioned Fatmir Limaj or a

13     commander or the incident that the Prosecution rely so heavily upon,

14     because if in fact the core of this is without foundation, struggling to

15     find some other means of corroboration is really not an exercise that is

16     merited.

17             But of course he was seen by the investigating authorities after

18     that.  In other words, non-Serb authorities, by the CCIU, on the 20th of

19     August, in the year 2000.  And once again, he doesn't mention Fatmir

20     Limaj or a commander of that kind.  And one would have expected that once

21     if his relationship with the Serbs might not have been as close as we

22     submit it must have been to hand himself in, surely he would have started

23     to mention the person who he regards or must have regarded as the most

24     responsible (redacted).  He would have mentioned it at the

25     first opportunity when seen by the CCIU.

Page 7429

 1             And in -- once again we have this pattern reemerging that I've

 2     already mentioned in relation to L-4 and L-10, and that is an absence of

 3     early mention or early identification, and that the name Celiku or the

 4     identification of Celiku or Fatmir Limaj only comes out very slowly, and

 5     it comes out over a period of time.  In this case, that is L-96, in 2002,

 6     and there is no doubt once again by that date that the name of Fatmir

 7     Limaj and his appearance is particularly well known and there is no

 8     dispute that he would have known that.

 9             And, one has to say - and I don't take time; some of these other

10     details are in our final brief - that he has misidentified other people

11     as persons concerned, no doubt from information that he may have got from

12     other people.  I'm not going to mention their names in open court but

13     it's in our final brief.  So he's liable to misidentify.  He's liable not

14     to identify people who he saw on his account far more often than the

15     person on the mountain.  And finally, of course, as we say, he didn't

16     originally identify the incident on the mountain let alone the person.

17     So we say fundamentally flawed, L-96.  Central figure they may have

18     wanted him to be, but you will have noticed by the end of case, certainly

19     so far as Fatmir Limaj is concerned, he certainly does not provide that

20     central core or basis.

21             That brings me and if I may start, although I won't finish

22     tonight but I will certainly finish in very short space of time tomorrow.

23     It brings me to a -- a third -- a third and final area which is of some

24     considerable importance and the reason why I will take a little more time

25     on this.

Page 7430

 1             This is the section that we've already indicated has remained

 2     intact throughout the whole of the case, namely the nature of the person,

 3     Fatmir Limaj himself, and his personality, his credentials and so forth.

 4     And as I mentioned earlier today, we regard it as a key to the case and

 5     we ask you to consider it when you have then examined the flawed evidence

 6     I've just been through.  I've left aside all the witnesses who support

 7     our case as opposed to the witnesses relied on by the Crown.  We've

 8     mentioned them in our final brief.  And of course one would need to

 9     dismiss those as well if one is going to cherry-pick through the ones I

10     have mentioned.  But one finally comes down to Fatmir Limaj himself, and

11     as you mentioned he gave evidence over a long period of time.  He spoke

12     to you in opening.  So you've had an excellent opportunity to get the

13     measure of the man, if I may say so.

14             The first important point about the measure of the man is that if

15     we're right about his personality and character, then there has been a

16     remarkable metamorphosis from somebody who led a lawful, responsible life

17     before 1998.  Even in the face of Serb oppression it is not suggested

18     that he committed any unlawful acts.  In the end he had to leave for

19     reasons that he explained.  And in the course of that pre-1998

20     explanation to you almost in passing he mentioned something almost in

21     passing that you may think has a bearing, and that is that he and another

22     were or did participate in what was called a blood-feud reconciliation

23     initiative that was taken.  And one recognises vendettas that occurred in

24     the pre-1998 Albanian context.  So this wasn't somebody who as it were

25     utilised the excuse of a blood feud to exacerbate the situation.  Quite

Page 7431

 1     the reverse.

 2             So from somebody who has acted responsibly and has been a student

 3     in fact dealing with matters of law at Pristina University before 1998,

 4     the moment he sets foot - this is the implication in the Prosecution

 5     case - the moment he sets foot in Kosovo he then apparently has this

 6     change.  Almost Jekyll and Hyde, turns from being somebody who it's not

 7     even been a hint of activity of this kind.  Very difficult to submerge

 8     the character that then apparently comes into being just for three

 9     months, four months.  April, May, June July.  He then becomes - and there

10     is no other word for it if the Prosecution are right - a monster.  He is

11     prepared to if not actually establish, oversee the establishment

12     according to them, of this prison camp and a system of inhumane treatment

13     leading in some case to death.  But it's even more -- I hope it's not

14     another misdemeanour and I've mentioned something I shouldn't.  I don't

15     think I have.

16             JUDGE PARKER:  Don't worry about it.

17             MR. MANSFIELD:  Well, I try worry about it.

18             What happens is a metamorphosis again because within a month of

19     this period of two months - you have these descriptions from others

20     including the mountain teacher, of what he was doing for the people of

21     Kosovo, I suggest as a whole, the 80.000 displaced people inside the

22     country who needed shelter.  He didn't go around asking them whether they

23     were Serbs.  He didn't go around asking whether somebody was an informer

24     or need to be taken prisoner or whatever.  He was, and there is no

25     question about this, assisting in very large measure the civilians who

Page 7432

 1     had no where else to go but the valleys in the area where he basically

 2     had been brought up; born, brought up, and his family lived.  And again,

 3     incontrovertible that he was doing this.

 4             How is this really possible, practically speaking, from a

 5     psychological point of view, that somebody switches and changes almost

 6     like a chameleon from one character to another character?  There are

 7     circumstances, but they're very rare.  They're unique, and we say if this

 8     was the kind of person that would supervise a prison camp of the kind

 9     described by the Prosecution, then the signs would have been evident

10     either before 1998 and his return or very soon after this particular

11     period, in 1998, 1999, 2000, and so on.  So that's the first question

12     that one has to pose, and that's why the nature and personality is

13     important.

14             There is a second feature here.  Just think again if one can, and

15     put oneself in his shoes in this period.  If you accept, and I've already

16     indicated some of the material suggesting that during -- during the war

17     he was espousing, clearly, principles of justice, fairness, equality for

18     all groups and therefore it's not surprising after the war that there was

19     this minority statement from the Kosovo Assembly transitional authority

20     that the Prime Minister, the ex-Prime Minister told you about supporting

21     this man, Fatmir Limaj.

22             He is running an extraordinary risk both at the time, if this is

23     what he's doing supervising a prison camp, and incredible risk for a

24     future political career of any credibility.  The idea that you could

25     supervise a camp of this nature and nothing ever got out about it and

Page 7433

 1     nothing ever got out about his role in it would be extraordinary risk for

 2     him to take given his ambitions, given where he wanted to go, and as I

 3     have said in the Rambouillet conference in 1999 what he was already

 4     trying to do.  To stand up on the hustings as he already did on a number

 5     of occasion us and you've heard about it you've seen the election

 6     literature, you've seen -- in one case there is a photo of him standing

 7     alongside Madeleine Albright.  Now, this is a man have a very high

 8     profile.  Is he going to put all that at risk, that potential at risk if

 9     in fact he knows full well that in his own backyard he's done exactly the

10     reverse of what he's exhorting his constituency to do.

11             And we say, thirdly, of course, this character evidence is

12     particularly relevant, and I've threaded it through the previous

13     sections, in assessing the weight of the credibility of his denials of

14     complicity in any camp.  And I think there came a stage in the case where

15     I endeavoured to make clear what his position is.

16             You may understand that a man of this calibre, this stature, is

17     really saying, when he's saying to you as he did, and there's no doubt

18     about it before these proceedings formally began in this very courtroom,

19     there was no camp.  And I think yourself asked at some stage of me about

20     the position.  The position of our case is that he played no part in any

21     prison camp.  He finds it incredible that there would have been such a

22     camp in such a place.  And that is understandable.  And what he's really

23     saying is, "I don't know anything about it.  And if I had, I would have

24     done something about it given the kind of person I am."

25             And therefore, it may be said well perhaps he should confront

Page 7434

 1     certain realities.  It may be said in that same breath that this is a man

 2     who is, as the Prosecution is saying, lying, not confronting the truth

 3     and so on.  But if he's right, it follows that he's not going to be in a

 4     position to accept that this has happened because he himself has played

 5     no part in it.  So the denial he's made has to be seen against the person

 6     that he is. So it's these three features of the evidence as it affects

 7     him in relation to personality that has to be seen in the context.

 8             But there is an aspect of all of this that I've left until last

 9     at this moment but tomorrow afternoon I'd like to just deal with some of

10     the aspects of his personality which support these contentions, these

11     three contentions.  I end tonight by just going back a stage in the

12     chronology, and that is the question of his arrest.

13             There is here a remarkable, if you like, cameo of Fatmir Limaj if

14     you need one, to assess almost like a litmus paper test of the true

15     character of the person and his responsibility, quite unlike and I'm not

16     going to name others who have evaded arrest, not wanted to be arrested.

17     I'm not talking about in particular Kosovo but elsewhere.

18             What happened here, and you will note unchallenged when he gave

19     this evidence, he was not cross-examined about any of this, despite the

20     fact that originally, this is again almost the cherry-picking, the

21     objection to provisional release partly was some suggestion that he was

22     going to disappear, that he didn't give himself up in the one hour that

23     elapsed between him discovering whilst he was on a short break which

24     everyone knew about from the Prime Minister down to the person at the

25     border.  They all knew, the UNMIK general, they knew that he'd gone.

Page 7435

 1     Nobody stopped him.  They knew where he was to the extent that a

 2     journalist was able to ring him up on his mobile and let him know that he

 3     was wanted.  He didn't go to ground.  He made public statements.  And the

 4     most important thing he did at this stage which we say is a reflection of

 5     his genuine commitment not just because it's UNMIK or just because

 6     there's an international organisation but because he is concerned as

 7     always for the welfare of Kosovo, that what he did not want was a

 8     situation which could easily have erupted, as the Prime Minister said, in

 9     which people take to the streets, there is instability, there is in the

10     end a situation in which the very fragile peace that has been sustained

11     since 1999 could have been shredded by actions that he took, and he knew

12     that you may think.  And that is why, as the Prime Minister indicated,

13     that he made a plea to the public that he was going to volunteer himself

14     and the Special Representative Mr. Steiner knew this.

15             And we've said it before and I say it again:  What was

16     reprehensible in this case was that the Special Representative did not

17     come when summoned here to explain exactly what was known and the

18     arrangements that was being made at that time, because effectively what

19     he wanted, because he -- the flights as you may recall were not regular

20     enough, he wanted one opportunity to go back to his family and to say

21     good-bye before he came to The Hague.  A perfectly reasonable

22     possibility, and that the Special Representative at one stage was

23     suggesting that he'd go and get him in a special plane.  Well, none of

24     that happened.  He was arrested, but we say he did not need to be.

25             And I say at this stage as well so that it's clear overnight that

Page 7436

 1     this particular aspect of the matter has meant that he has been already

 2     denied, we say, a form of justice.  He should have been, and we say would

 3     have been in the same position as another defendant, namely Mr.

 4     Haradinaj, awaiting trial; not in custody.  Given his background and

 5     given his commitment and given what his attitude was to the knowledge

 6     that he was wanted and his respects for this Tribunal and the fact that

 7     he has, if cooperation is the right word, given evidence at here at some

 8     length and has constantly referred to the fact that he respects the

 9     reason and the objectives of this Tribunal, and of course this whole area

10     as I've said was not suggested to him in cross-examination, that any of

11     this was rubbish.  Therefore, we say he's already waited in custody a

12     very long time.  And we say that's a highly prejudicial situation, and it

13     goes back to the question of the even-handedness and also the approach to

14     cases like this, because what then happens is even worse.

15             He's in custody and then there are allegations, and I don't shy

16     away from the allegations, allegations that were made originally that

17     this very Tribunal in the end fortunately brought some justice to this

18     situation, allegations that in some way or another he was responsible for

19     intimidation and possibly that might be affecting the evidence.  And it

20     was said by Mr. Cayley this material was going to be led in evidence.

21     "Will be led" were his words.  Well, it hasn't been led, and yet it led

22     to a regime of incommunicado with his family.  It may have been the

23     reason for blindfolds and so on, the matters that concerned us so much at

24     the beginning, and we say gave an aura of predisposition by the Tribunal

25     to his particular case.  And it's fully understandable that that is

Page 7437

 1     something that he and others around him should feel about what had

 2     already happened.  And we say that is not an example which should not be

 3     followed.

 4             And the request that I make to Your Honours, finally tonight, is

 5     this:  That if there is to be between the ending of oral submissions this

 6     week and the delivery of your judgement in this case an appreciable and

 7     I'm not in a position to say what it would be, but an appreciable

 8     interval of time that consideration even at this late stage might be

 9     given to the possibility of provisional release for him at least for that

10     short time so he can be with his family which is where he should have

11     been up to now and in light of the fact there is frailty and illness

12     particularly and illness amongst his parents.  If there is to be an

13     appreciable interval then we are proposing that we would certainly in

14     writing ask that this be reconsidered even though it is an unusual

15     situation - it's not unprecedented - an unusual situation, but it might

16     just begin to repair the injustice that we say has been meted out to him

17     in this case already and at least would afford him some time to as it

18     were face whatever judgement it is you intend to apply to this case in

19     either a month or two months or whatever the time scale is.

20             I wonder at this juncture whether I might defer the remainder of

21     what I have to say about his personality and the evidence that relates to

22     that until tomorrow.  It will take probably no longer than half an hour.

23             JUDGE PARKER:  Very well, Mr. Mansfield.

24             We will resume tomorrow at 2.15.

25                           --- Whereupon the hearing adjourned at 6.53 p.m.,

Page 7438

 1                           to be reconvened on Wednesday, the 31st day

 2                           of August, 2005, at 2.15 p.m.