1 Wednesday, 30 November 2005

2 [Judgement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.03 p.m.

6 JUDGE PARKER: The Trial Chamber is sitting today to deliver

7 judgement in the trial of three accused: Fatmir Limaj, Haradin Bala, and

8 Isak Musliu. For the purposes of this hearing, the Chamber will summarise

9 briefly its findings, emphasising that this is a summary only and that the

10 only authoritative account of the Chamber's findings and of its reasons

11 for those findings is to be found in the written judgement, copies of

12 which will be made available to the parties at the conclusion of this

13 sitting.

14 The three accused, Fatmir Limaj, Haradin Bala, and Isak Musliu,

15 are indicted for crimes allegedly committed by them and other members of

16 the Kosovo Liberation Army, the KLA, from May to around the 26th of July,

17 1998, against Serbian civilians and Kosovo Albanian civilians who were

18 perceived as Serbian collaborators in central Kosovo. The indictment

19 alleges that at least 35 civilians were abducted by KLA forces, detained

20 in a prison camp in the village of Lapusnik for prolonged periods of time

21 under inhumane conditions, and routinely subjected to assaults, beatings,

22 and torture. 14 named prisoners are alleged to have been murdered in the

23 course of their detention. Another ten were allegedly executed in the

24 nearby Berisa Mountains on or about the 26th of July, 1998, when KLA

25 forces were forced to abandon the village of Lapusnik and the prison camp

1 under attack from advancing Serbian forces. All three accused are charged

2 with eight counts of imprisonment, cruel treatment, inhumane acts, and

3 murder for their alleged participation in the crimes at the prison camp.

4 Fatmir Limaj and Haradin Bala are also charged with two further counts of

5 murder for their alleged roles in the execution of detainees in the Berisa

6 Mountains.

7 Counts 1, 3, 5, 7, and 9 are charged as crimes against humanity

8 under Article 5 of the Statute. For the Tribunal to have power to deal

9 with crimes against humanity, it must first be proved by the Prosecution

10 that the alleged criminal conduct of the accused was part of a widespread

11 or systematic attack directed against a civilian population. The Chamber

12 has heard evidence of individual abductions, detention, and mistreatment

13 by KLA soldiers of both Serbian and Kosovo Albanian civilians between May

14 and July 1998. It was not proved, however, that these acts were on a

15 scale or of a nature necessary to constitute a widespread or systematic

16 attack on a civilian population. It necessarily follows, therefore, that

17 Counts 1, 3, 5, 7, and 9 must be dismissed with respect to all three

18 accused. The written judgement sets out more fully the Chamber's reasons

19 for this conclusion. In this summary, the Chamber will not discuss those

20 counts any further.

21 Counts 2, 4, 6, 8, and 10 are charged as war crimes under

22 Article 3 of the Statute. This requires that the alleged criminal acts of

23 the accused are committed in the course of an armed conflict. The Chamber

24 has heard extensive evidence on this issue, including from expert

25 witnesses, and is satisfied that before the end of May 1998 a state of

1 armed conflict existed in Kosovo between Serbian forces and the KLA.

2 Count 2 alleges the offence of cruel treatment based on the

3 unlawful seizure, unlawful detention, and interrogation of Serbian and

4 Kosovo Albanian civilians. The Chamber has come to the conclusion that,

5 at least in the particular circumstances of this case, the mere acts of

6 seizure, detention, and interrogation in and of themselves have not been

7 shown to constitute a serious attack on human dignity within the

8 established meaning of cruel treatment under Article 3 of the Statute.

9 Count 2, therefore, must also be dismissed with respect to all three

10 accused.

11 There remains, however, another charge of cruel treatment -

12 Count 6 - which relies on a much broader range of conduct than Count 2.

13 This remains, and the Chamber will indicate its findings in respect of

14 Count 6 shortly.

15 It is also alleged in the indictment that in addition to direct

16 personal involvement, the three accused are criminally responsible for the

17 offences with which they are charged, by virtue of their participation in

18 a joint criminal enterprise. In the Chamber's finding, it has not been

19 proved by the Prosecution that there was a joint criminal enterprise

20 involving any of the three accused.

21 The central allegation in the Prosecution case is that the KLA

22 established a prison camp in a farm compound in the village of Lapusnik in

23 central Kosovo in which it held mainly civilian prisoners of both Kosovo

24 Albanian and Serbian ethnicity between May and the end of July 1998. The

25 existence of any such camp is denied by all three accused. The Chamber

1 has heard a great deal of evidence about this issue, especially from

2 persons who said they had been detained there and from former KLA members.

3 Having carefully considered all this evidence, the Chamber is

4 entirely satisfied that the KLA did have a prison camp in the farm

5 compound in Lapusnik, as alleged by the Prosecution, and that in June and

6 July 1998, there were mainly civilian prisoners of both Albanian and

7 Serbian ethnicity held in this prison camp. The evidence proves that the

8 KLA were forced to abandon the prison camp on the 25th or 26th of July,

9 1998, because Serbian armed forces were then advancing on Lapusnik, which

10 was captured by the Serbian forces on the 26th of July. This evidence is

11 considered in detail in the written judgement.

12 The most serious charge concerning conduct at the prison camp is

13 Count 8, which alleges that 14 identified civilian prisoners were murdered

14 at the camp. Most of these 14 prisoners have not been heard of again by

15 their families. Given the nature of the charges, it was necessary for the

16 Prosecution to establish that each of these was murdered at the camp or by

17 KLA soldiers connected with the camp. There is no direct evidence as to

18 what happened to most of these prisoners. In the circumstances, for the

19 reasons that are set out in the written judgement, the Prosecution has

20 only been able to prove by the available evidence that three prisoners

21 were murdered at the camp.

22 Count 6 of the indictment alleges that all of the prisoners held

23 in the prison camp were subjected to cruel treatment. Over 30 prisoners

24 are alleged to have been detained. The identities of some of these are

25 not known. The identities of some 27 have been established. Almost all

1 of these have been proved to have been detained in either a very small

2 basement storage room or in another very small room used as a cowshed.

3 The evidence establishes that the conditions in each of these rooms were

4 absolutely inhumane. There was, at most times, gross overcrowding. There

5 was no provision for washing or toilet, although after an initial period

6 one bucket was provided for use as a toilet in the storage room. This

7 bucket was not regularly emptied so that it would overflow. The prisoners

8 slept on the concrete floors or on some straw. Meals were provided at

9 irregular intervals. At times days would pass without food. The food was

10 eaten in the rooms. There was very little light or ventilation in the two

11 rooms. The atmosphere was absolutely oppressive with heat and stench. On

12 rare occasions, prisoners in the storage room were allowed fresh air for a

13 short time at night. Many of the prisoners were tied by the hands or feet

14 or both. Some were tied to other prisoners. In the cowshed, most

15 prisoners were chained to the wall and unable to move from their position

16 in the room. They were forced to soil themselves in their clothes. Many

17 of the prisoners had been badly injured with broken limbs, bones, or

18 internal injuries. Others had been shot. No medical treatment of any

19 kind was provided, even though there was a doctor and a medical clinic in

20 the village which was used by the KLA personnel.

21 In the Chamber's finding, the detention of a prisoner in these

22 conditions constituted the offence of cruel treatment.

23 A few prisoners were held in other places in the farm compound.

24 The evidence does not establish that the conditions in these other places

25 were such as to constitute cruel treatment.

1 In addition there is a significant body of evidence which details

2 individual acts of severe physical violence committed by various KLA

3 members on individual prisoners. The evidence indicates that it was a

4 regular occurrence for a prisoner to be blindfolded, tied, and taken from

5 the room at night by KLA soldiers, who often wore hoods to hide their

6 faces. The prisoners were then severely beaten or subjected to other

7 extreme violence and later were returned to the detention room, at times

8 unconscious or in severe pain. The Chamber has dealt with this evidence

9 in more detail in its judgement.

10 From this evidence, the Chamber has identified in particular 12

11 incidents of this nature in which identified prisoners were the victims.

12 In respect of each of these 12 incidents, the crime of cruel treatment has

13 also been established by the Prosecution. The Chamber is also satisfied

14 that five prisoners were subjected to severe mental suffering caused when

15 they witnessed other prisoners being beaten or were threatened with death

16 at gunpoint or were forced to bury the injured and disfigured corpses of

17 other prisoners. This conduct by KLA members has also been proved to

18 constitute the offence of cruel treatment.

19 Count 4 of the indictment charges the offence of torture. To

20 prove the offence of torture, one element which the Prosecution must

21 establish is that the perpetrator mistreated the victim for a particular

22 purpose. In this case, the purpose of obtaining a confession or

23 information or to punish the victim. The evidence establishes four

24 incidents involving identified victims in which the crime of torture has

25 been established.

1 Fatmir Limaj and Haradin Bala are also charged in Count 10 for

2 their alleged participation in the execution of detainees from the prison

3 camp in the Berisa Mountains. On the 25th or 26th of July, the remaining

4 detainees at the prison camp, over 20 of them, were marched into the

5 Berisa Mountains under armed KLA escort. In the mountains, over 20 -- I

6 beg your pardon. In the mountains, about half of them were set free and

7 allowed to leave. The others remained under KLA guard. The remains of

8 nine bodies were later exhumed from graves located in this area of the

9 Berisa Mountains. DNA examination confirmed the identity of eight of

10 these bodies. The identity of the ninth was established by identification

11 of the clothes by family members. It has been proved that all nine

12 victims had been held prisoners by the KLA in the prison camp and that

13 they were in the group that remained under KLA guard in the Berisa

14 Mountains on the 25th or 26th of July, 1998, after about half of the

15 prisoners were set free.

16 Forensic examination discloses that six of the nine victims died

17 from bullet wounds fired from Kalashnikov rifles, which was the type of

18 weapon used by the KLA guards. The precise cause of death of the other

19 three bodies was not identified by forensic examination. These three

20 bodies, however, had fractures of bones caused at about the time of death.

21 Some bodies had been shot more than once. The Chamber is satisfied from

22 this compelling body of evidence that nine of the prisoners from the

23 Lapusnik prison camp were executed that day in the Berisa Mountains by KLA

24 guards. The written judgement details the evidence and the identity of

25 these victims. The Prosecution has, therefore, established that nine

1 identified detainees from the Lapusnik prison camp were murdered in the

2 Berisa Mountains, as alleged in Count 10 of the indictment.

3 From what has been said so far, it will be apparent that the

4 Prosecution has proved that civilians were detained by the KLA in a prison

5 camp in a farm compound in Lapusnik in June and July 1998, and that three

6 of these prisoners were murdered by KLA soldiers at the camp. Most of

7 these prisoners were subjected to cruel treatment and four were tortured

8 while they were imprisoned by the KLA. Further, it has been proved by the

9 Prosecution that nine identified prisoners from the camp were murdered in

10 the nearby Berisa Mountains by KLA guards on the day the KLA were forced

11 to abandon the prison camp. There remains the further critical issue

12 whether the three accused, Fatmir Limaj, Haradin Bala, and Isak Musliu, or

13 any of them, have been proved to have been criminally responsible for any

14 of the offences which have been established by the Prosecution.

15 In this respect, in addition to direct personal involvement, it is

16 also alleged in the indictment that two of the accused, Fatmir Limaj and

17 Isak Musliu, are guilty of the offences charged for their failure to

18 prevent or punish the criminal conduct of their subordinates in the KLA.

19 While it is clear that these accused were, at times after those relevant

20 to the indictment, in positions of command in the KLA and that Fatmir

21 Limaj later became a member of the General Staff, the present issue is

22 whether in May to July 1998 they had positions of command in respect of

23 the Lapusnik prison camp. For the reasons set out in the written

24 judgement, the Chamber finds that the Prosecution has not proved that

25 either of these two accused was in a position of command or had effective

1 control over KLA soldiers involved in the Lapusnik prison camp.

2 Therefore, in this case, the issue of criminal responsibility of

3 the three accused essentially, though not solely, turns on the question of

4 identification. This has been one to which the Chamber has given a great

5 deal of close attention.

6 A few witnesses purported to have seen Fatmir Limaj in the

7 Lapusnik prison camp at various times, and one witness purported to have

8 seen him in the Berisa Mountains speaking to one of the KLA guards

9 sometime before the execution of the nine prisoners. There was also

10 evidence that Fatmir Limaj had not been in the prison camp and was never

11 in the Berisa Mountains on the day of the executions. While the Chamber

12 was not persuaded of the honesty of one of the witnesses, who purported to

13 identify Fatmir Limaj, and has had to consider with care the reliability

14 of the others, the balance of the evidence on this issue did indicate the

15 strong possibility that Fatmir Limaj was the KLA member who was known in

16 the camp to some prisoners as Commander Celiku.

17 Nevertheless, for reasons fully set out in the written judgement,

18 on a final review of the evidence the Chamber finds that it has not been

19 proved beyond reasonable doubt by the Prosecution that the accused Fatmir

20 Limaj had any role in the prison camp or in the executions in the Berisa

21 Mountains or that he has criminal responsibility for any of the offences

22 with which he is charged.

23 With respect to the accused Haradin Bala, the evidence relevant to

24 his identification is more extensive and varied. A number of witnesses

25 have purported to identify him as the KLA guard known as Shala who was

1 active in the prison camp in June and July 1998. In that role, Shala had

2 relatively frequent contact with the prisoners. Generally, he had the

3 keys and often he brought food and water to the prisoners. A number of

4 witnesses also purported to identify the accused Haradin Bala as one of

5 the two or perhaps three armed KLA guards who escorted the remaining

6 prisoners from the prison camp to the nearby Berisa Mountains when the KLA

7 had to abandon the prison camp on the 25th or 26th of July, 1998. The

8 Chamber is not able to be satisfied about the honesty of all of these

9 witnesses. With respect to other witnesses, the Chamber has had to

10 consider closely the reliability of each of these identifications of the

11 accused Haradin Bala as the guard they knew as Shala in the prison camp

12 and in the Berisa Mountains on the last day. There are many factors

13 relevant to this which the Chamber has set out in its written judgement.

14 The Chamber has also had to consider other relevant evidence, especially

15 evidence that suggested that Haradin Bala was not in Lapusnik during the

16 relevant period and evidence which suggested that because of poor health

17 he could not have done some of the things described by the witnesses and

18 alleged in the indictment.

19 Having weighed carefully the effect of all of this evidence, for

20 reasons which the Chamber has set out in its written judgement, the

21 Chamber finds that the Prosecution has proved beyond reasonable doubt that

22 the accused Haradin Bala is the KLA guard known as Shala who was involved

23 in the running of the prison camp in Lapusnik and who escorted the

24 remaining prisoners to the Berisa Mountains on the 25th or 26th of July,

25 1998.

1 The Chamber has gone on to consider, therefore, whether it has

2 been proved that the accused Haradin Bala is personally, or otherwise,

3 criminally responsible for any of the charged offences which have been

4 proved to have occurred. Having weighed the evidence dealing with these

5 issues, the Chamber has found that the Prosecution has not proved that

6 Haradin Bala is criminally responsible for any of the three murders of

7 prisoners at the camp, that is Count 8; but the Prosecution has proved

8 that Haradin Bala is guilty of cruel treatment, that is Count 6, for

9 having mistreated three individual prisoners and aided in another episode

10 of mistreatment of one of those prisoners and for his personal role in the

11 maintenance and enforcement of the inhumane conditions of detention in the

12 prison camp; and that the Prosecution has proved that Haradin Bala aided

13 the torture of one prisoners, that is Count 4; and further, that Haradin

14 Bala, jointly with one or perhaps two other KLA guards, murdered nine

15 prisoners from the prison camp in the Berisa Mountains on the 25th or 26th

16 of July, 1998, that is Count 10.

17 There was little evidence to identify the accused Isak Musliu as

18 having any kind of involvement in the prison camp. The evidence relied on

19 by the Prosecution has been set out and considered by the Chamber in the

20 written judgement. In the Chamber's finding, the evidence presented fails

21 to establish that Isak Musliu had any involvement in the events charged or

22 in the running of the prison camp or that on any other basis he is

23 criminally responsible for any of the offences with which he is charged in

24 the indictment.

25 Fatmir Limaj, would you please stand.

1 [The accused Limaj stands]

2 JUDGE PARKER: The Chamber finds you not guilty on all counts in

3 the indictment. The Chamber orders that you be immediately released from

4 the United Nations Detention Unit, subject to the completion of the

5 necessary modalities. You may be seated.

6 [The accused Limaj sits down]

7 JUDGE PARKER: Haradin Bala, would you please stand.

8 [The accused Bala stands]

9 JUDGE PARKER: The Chamber finds you guilty pursuant to

10 Article 7(1) of the Statute of the following offences: Count 4: Torture,

11 a violation of the laws or customs of war, under Article 3 of the Statute,

12 for having aided the torture of a prisoner named in the written

13 disposition; Count 6: Cruel treatment, a violation of the laws or customs

14 of war, under Article 3 of the Statute, for having personally mistreated

15 three prisoners and aided another episode of mistreatment of one of those

16 prisoners and for your personal role in the maintenance and enforcement of

17 inhumane conditions of detention in the Lapusnik prison camp; and

18 Count 10: Murder, a violation of the laws or customs of war, under

19 Article 3 of the Statute, for having personally participated in the murder

20 of nine detainees, who are named in the written disposition, in the Berisa

21 Mountains on the 25th or 26th of July, 1998.

22 The Chamber finds you not guilty on all other counts in the

23 indictment.

24 With respect to sentence, the Chamber has set out in the written

25 judgement the many factors it has taken into account in assessing the

1 appropriate sentence. In particular, the Chamber has taken into account

2 the sentencing structure in the former Yugoslavia and sentences imposed in

3 this Tribunal for offences in some ways similar to those of which you have

4 been convicted.

5 The Chamber would emphasise that in its findings your role in the

6 prison camp was that of a guard. You were not in a position of command or

7 authority. In particular, in connection with the murders in the Berisa

8 Mountains, in the Chamber's finding you were acting as a soldier under

9 orders in releasing some prisoners and executing nine of them. You did

10 not do this on your own initiative or decision. While that does not

11 excuse your conduct, it affects the degree of the seriousness of your

12 conduct.

13 You are sentenced to a single sentence of 13 years' imprisonment.

14 Full credit will be given for the time you have spent in custody. You

15 will remain in the custody of the Tribunal, pending the finalisation of

16 arrangements for your transfer to the state where you will serve your

17 sentence.

18 You may sit down.

19 [The accused Bala sits down]

20 JUDGE PARKER: Isak Musliu, if you could please stand.

21 [The accused Musliu stands]

22 JUDGE PARKER: The Chamber finds you not guilty on all counts in

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

24 the United Nations Detention Unit, subject to the completion of the

25 necessary modalities.

1 You may sit down.

2 [The accused Musliu sits down]

3 JUDGE PARKER: That concludes this trial. The Chamber will now

4 adjourn.

5 --- Whereupon the Judgement adjourned at 3.43 p.m.

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