120417ED

Page 2365

1 [Witness answered through interpreter]

2 Examination by Mr. Rogers: [Continued]

3 Q. Mr. Witness, yesterday at the conclusion of the proceedings we

4 were speaking about a man called Skender Kuqi, and you were telling us

5 that you saw him -- I'm looking at page 94 of the transcript, the draft

6 transcript. I haven't seen a revised version, but the one I have at

7 line 21, Witness, the answer you gave recorded you as saying:

8 "I was there until I saw him dead. They said he isn't dead. But

9 from what I saw, he was dead there, as a result of the beatings. He died

10 there and they took him to hospital, dragged him and put him to hospital,

11 but he was dead before that."

12 Mr. Witness, I wanted to ask you about the hospital part. How --

13 how -- can you help us, please, with how it was that he came to go to

14 hospital? What gave rise to that?

15 A. It was because of the beating. He was beaten severely. And in

16 my opinion, he was dead already. He was not very close to me for me to

17 ascertain it, but I thought that he was dead already.

18 Q. How did you know that he was going to go to a hospital? How did

19 you come to know about that?

20 A. It was said there that he has to be taken to hospital.

21 Q. Could you tell us, please, who said that?

22 THE INTERPRETER: Interpreter's note: That we can hardly hear

23 the witness. The sound is very faint.

24 JUDGE MOLOTO: Yes. The interpreters say they cannot hear you.

25 Your sound is very faint. Mr. Court Officer is going to try and help

Page 2366

1 with you your microphone, and could you please try to speak a little

2 louder and speak directly to the microphone.

3 Mr. Court Officer, could you try and see if you can help the

4 witness with his microphone there, please. Thank you so much. Thank

5 you.

6 Can you repeat your answer, please, for the sake of the

7 interpreters.

8 THE WITNESS: [Interpretation] They said that they were going to

9 take him to hospital. Myftar Ibrahimi, Nazmi Ibrahimi, and another

10 person with the name Ibrahimi.

11 THE INTERPRETER: The sound is still very faint. I don't think

12 it's the fault of the witness.

13 JUDGE MOLOTO: The interpreter -- I don't know whether the

14 technicians can help us. They are attending to it, ma'am. Thank you so

15 much.

16 Proceed, Mr. Rogers.

17 MR. TROOP: [Via videolink] Your Honour, can I interrupt, please.

18 It seems like the problem is slightly more widespread in -- a number of

19 people in the courtroom are not receiving the translation either, I'm

20 told by my colleagues. I don't have a problem, myself. But I think

21 there's a more widespread problem.

22 JUDGE MOLOTO: Okay. Okay. We've been advised that the

23 technicians are attending to the problem out there and I hope it will be

24 sorted.

25 Do you want us to wait? I can see a technician in court there.

Page 2367

1 MR. TROOP: [Via videolink] I think it's quite important that

2 those here in The Hague are able to follow the proceedings, and not

3 everybody can follow the proceedings while they can't hear the questions

4 or the answers.

5 JUDGE MOLOTO: Will you just alert us as soon as the technician

6 is done with his job out there?

7 MR. TROOP: [Via videolink] Yes. I certainly will.

8 [Technical difficulty]

9 MR. TROOP: [Via videolink] Your Honour --

10 I can only see Mr. Rogers, I'm afraid.

11 Your Honour, I believe the problem may have been resolved. But

12 we do need just a test to see if the systems are now working, so perhaps

13 you could invite the witness just to say something simple in Albanian.

14 JUDGE MOLOTO: We'll do that.

15 Mr. Witness, can you say something in Albanian, something like,

16 "testing, testing, testing," or whatever.

17 THE WITNESS: [Interpretation] Testing, testing, testing.

18 MR. TROOP: [Via videolink] I think we've nearly resolved it, but

19 perhaps we could just say that again so the balance can be set properly.

20 JUDGE MOLOTO: Can you say it again, Mr. Witness.

21 THE WITNESS: [Interpretation] Testing, testing, testing.

22 MR. TROOP: [Via videolink] Your Honour, I think the matters have

23 been resolved. Thank you. And apologies for that interruption.

24 JUDGE MOLOTO: Thank you so much.

25 Mr. Rogers, sorry for the interruption. Can you carry on.

Page 2368

1 The witness was giving an answer.

2 MR. ROGERS: Okay. Yes.

3 Q. Mr. Witness, I just want to come back, please, to this incident

4 where you saw the body of -- as you say, the body of Skender Kuqi. Could

5 you describe, please, the circumstances in which you saw that body. How

6 was it you were able to observe it?

7 A. The body was without clothes. He had been beaten brutally,

8 severely. That's how I saw him.

9 Q. Can you help, please, with how the body was being carried?

10 A. He was lying down a piece of board or something [as interpreted].

11 I don't know how to describe it.

12 Q. And how was the board being moved? Who was moving it?

13 A. Some soldiers who were there.

14 Q. And which -- which soldiers were they? Who -- for which side

15 were they working? What -- what type of soldiers were they?

16 A. Soldiers of that staff, of that headquarters where Skender Kuqi

17 was. Young soldiers. They had nothing to do with it, but they were just

18 doing their job.

19 Q. And where was the body brought from? When did you first see it?

20 Where -- where was it?

21 A. From one room there in the headquarters.

22 Q. [Previous translation continues] ... was present. You've told us

23 about the soldiers that were carrying the board. Who else was there,

24 please? And I would like you to try to recall as many people as possible

25 as to who was present when that body was being moved.

Page 2369

1 A. I can't remember, but the soldiers I mentioned earlier were

2 there. I can't remember whether there was anybody else.

3 Q. You've told us about, I think, Myftar Brahimaj, Lahi Brahimaj,

4 and at least one other Brahimaj. Who was else with -- if anybody, who

5 else was with those commanders from the staff?

6 A. There were some other Brahimajs. But as far as I know, they are

7 not alive anymore. They are dead.

8 Q. Do you recall whether there were any other commanders from

9 anywhere else that may have been present with the Brahimajs?

10 A. No, I can't remember.

11 Q. Can you describe the body, please, and what it looked like.

12 A. His body was all bruised because of the beating. I believe that

13 his clothes were torn and his limbs were broken. And I think I could see

14 some of his organs.

15 Q. At what point was it said that the -- Skender Kuqi should be

16 taken to a hospital? When did that happen in the sequence of events?

17 A. At the moment I thought he was dead, and at that time there

18 wasn't a doctor present to be able to ascertain his death.

19 Q. I want you to try to be as specific as you can, please, about

20 what you remember. You've told us about a number of people, but who was

21 it that you first heard referring to the body being taken to a hospital?

22 Who first said that, please?

23 A. The first person there was Lahi Brahimi, Nazmi Brahimi,

24 Myftar Ibrahimi. These were the ones that were there and that gave the

25 order for him to be taken to hospital.

Page 2370

1 Q. Where was it that the body was to be taken to? Which hospital?

2 Where?

3 A. In Irzniq.

4 Q. How did you know it was to be that hospital?

5 A. I was there all the time. I was serving there, and I knew that

6 the hospital was in Irzniq.

7 Q. Can you recall whether anybody else may have said that the body

8 should be taken to the hospital in Irzniq?

9 A. No, I don't remember.

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 2371

11 Page 2371 redacted.

Page 2372

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 Q. And who were those important people, please?

14 A. In Jabllanice, Lahi Brahimi, Nazmi Brahimi, Alush Agushi. These

15 were the main people in the staff there. There were other staffs and

16 headquarters in Dukagjin, but they had other people.

17 Q. Can you tell me about those other headquarter staffs, please, in

18 the Dukagjin. Where were they located?

19 A. At that time, there was one in Jabllanice, then in Gllogjan. So

20 each local community, each village, had a staff, but they were not

21 Main Staffs like the one in Jabllanice and Gllogjan. There was another

22 one in Baran led by Colonel Tahir Zemaj.

23 Q. Could you tell me about the Main Staff in Gllogjan, please. Who

24 was in charge of that?

25 A. It was Ramush Haradinaj.

Page 2373

1 Q. And can you help, please, with when he came to be in charge of

2 that staff in Gllogjan, to your knowledge?

3 A. To my knowledge, he was involved from the very beginning of the

4 war.

5 Q. When did you first become aware of Ramush Haradinaj?

6 A. I heard about him sometime in May at the outset of the war.

7 Q. Where was that when you first heard about him?

8 A. I was in Jabllanice.

9 Q. And what -- what was said, please, about him?

10 A. I heard that he's the commander of the staff for Dukagjini.

11 Q. And how did you hear that? Who told you that?

12 A. I heard from Lahi Brahimaj and others.

13 Q. What were the circumstances in which you heard that, please?

14 A. It was there in the staff, when people spoke about him, saying

15 that he's the main person for the staff. Before, I didn't know anything

16 about him. I never heard his name before.

17 Q. Can you help, please, with why was it that he was being talked

18 about then? That it was being said he was the main person.

19 A. His name, the name of every commander in every village, in every

20 place, if someone was a commander, his name was referred to, was

21 mentioned.

22 Q. Did you see him at all? Ramush Haradinaj.

23 A. Yes, yes.

24 Q. When did you first see him; and where was that?

25 A. I saw him first in Jabllanice, and I saw him in Baran several

Page 2374

1 times.

2 Q. Tell me, please, about the time in Jabllanice. When -- when was

3 that, please, that you saw him in Jabllanice?

4 A. I saw him in Jabllanice for the first time when Skender Kuqi

5 died.

6 Q. So where was he, please?

7 A. He was there.

8 Q. Whereabouts?

9 A. In the staff, there. How can I say it? How can I explain it to

10 you? He was in the staff.

11 Q. In relation to -- you've told us Skender Kuqi died. Were --

12 MR. EMMERSON: In fact, what the witness has told us is that he

13 saw Skender Kuqi in a poor state and he assumed that he had died.

14 There's independent evidence he was in fact still alive.

15 MR. ROGERS: Be that as it may, if that's in fact the case, the

16 situation is the witness says that he saw him in those circumstances.

17 That's what I ascertain.

18 Q. In relation to that, in relation to Skender Kuqi, where was

19 Ramush Haradinaj when that body was brought out?

20 A. Inside, in the staff, that's where he was. But I want to

21 explain, once again, that I cannot ascertain for sure that he was dead.

22 Maybe he -- for the moment, he was still alive, but to my knowledge, as

23 far as I understood it, his condition, he was dead. I am not a doctor,

24 and I wasn't there very close to him to make sure he was dead. But

25 that's my opinion.

Page 2375

1 Q. Can you help with whether you were able to see if

2 Ramush Haradinaj could see the body of Skender Kuqi?

3 A. Yes. I may say, I may confirm, that his family, too, came there

4 and intervened. For example, about his -- the confirmation that he was

5 dead. Later, I heard that he was dead.

6 Q. Mr. Witness, I wasn't asking you about his family. I was asking

7 you about Mr. Haradinaj, Mr. Ramush Haradinaj. Are you able to tell us

8 whether he was able to see what was happening with the body of

9 Skender Kuqi?

10 A. No, no, I cannot say that. I don't know whether he was dead or

11 not; I know that --

12 [Technical difficulty]

13 JUDGE MOLOTO: [Microphone not activated] All right.

14 Mr. Court Officer, the technicians is asking whether the last sentence

15 was recorded. We've got to check whether that was recorded.

16 THE REGISTRAR: It was not. If you can ask witness to repeat it,

17 please.

18 JUDGE MOLOTO: Can you ask the question again, Mr. Rogers.

19 MR. ROGERS: Yes, perhaps we could just ask the witness to repeat

20 what he just said, because I'm not sure I can remember the question

21 precisely.

22 Q. Witness, could you just repeat the last thing you said to the

23 Court, please.

24 MR. EMMERSON: It's: I cannot say whether Ramush Haradinaj was

25 in a position to see what happened to the body of Skender Kuqi.

Page 2376

1 MR. ROGERS: Yes, but there was something the witness was saying

2 that was untranslated. I wonder if we could hear what it was that he

3 said, please.

4 THE WITNESS: I can't hear anything.

5 JUDGE MOLOTO: We have a problem now.

6 [Technical difficulty]

7 JUDGE MOLOTO: Can you say something, Mr. Witness? "Testing,

8 testing."

9 THE WITNESS: [Interpretation] Test, test, test.

10 JUDGE MOLOTO: I must say, it was the witness who couldn't hear,

11 so can somebody say something and let's hear whether the witness can

12 hear.

13 MR. ROGERS: One, two, three, four, five. Can you hear that?

14 No.

15 [Technical difficulty]

16 THE WITNESS: [Interpretation] Yes, yes. Now, yes.

17 Yes, yes. I can hear now.

18 JUDGE MOLOTO: Mr. Witness, can you hear any of the Albanian

19 interpretation of my question that I'm just -- the question that I'm just

20 putting to you?

21 THE WITNESS: [Interpretation] Yes, Your Honour. Yes.

22 MR. ROGERS: Mr. Witness, let's just try to get back onto this

23 subject and then move -- move from there. I was asking you about whether

24 Ramush Haradinaj, as far as you were concerned, was able to see what was

25 happing with Skender Kuqi. Now, could you just recap, please, on

Page 2377

1 whether --

2 JUDGE MOLOTO: Can I interrupt you, sir. I'm told the transcript

3 in The Hague is not working.

4 THE REGISTRAR: [Via videolink] Yes, Your Honour, can we pause --

5 pause for a second.

6 JUDGE MOLOTO: Sorry. Mr. Court Officer, you want us to stop a

7 little bit?

8 [Technical difficulty]

9 JUDGE MOLOTO: Okay. We may proceed.

10 Mr. Rogers, you may stand up -- I see Mr. Guy-Smith is on his --

11 okay.

12 MR. GUY-SMITH: I'm on my feet but I'm not on my feet for any

13 reason as regard Mr. Rogers.

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

15 Okay. Mr. Rogers, you may proceed.

16 MR. ROGERS: It's a relief to know -- [overlapping speakers] ...

17 MR. TROOP: [Via videolink] No, no --

18 MR. ROGERS: -- Mr. Guy-Smith's not on his feet for me.

19 MR. TROOP: [Via videolink] Your Honour, can I interrupt, please.

20 MR. ROGERS:

21 Q. Mr. Witness, let's just go back to see if we can deal with this

22 issue.

23 Now, so far as Mr. Haradinaj was concerned, when you were --

24 MR. TROOP: [Via videolink] Your Honour, can you hear me?

25 MR. ROGERS: Oh, Mr. Troop's on his ...

Page 2378

1 JUDGE MOLOTO: Mr. Troop.

2 MR. TROOP: [Via videolink] Your Honour, since the -- since the

3 connection was just lost, something has changed with the setting, so it's

4 practically impossible to follow what's happening. I'm having

5 difficulties and I know my client's having difficulties. It seems that

6 based on -- [Overlapping speakers] ...

7 JUDGE MOLOTO: [Overlapping speakers] ... is not on his feet for

8 you. He's on his feet for some technology.

9 MR. TROOP: [Via videolink] Your Honour, the English and Albanian

10 appear to be coming through on the same channel, so it's practically

11 impossible to either listen or follow.

12 Can you hear me, Your Honour?

13 Well, I'm told, Your Honour, that the problem has now been fixed.

14 I think we can probably continue.

15 JUDGE MOLOTO: Okay. Mr. Troop has taken his seat.

16 Mr. Rogers, will you please stand.

17 MR. ROGERS: [Microphone not activated] ... that's more of a

18 worry, perhaps. It appears the gremlins have struck.

19 MR. TROOP: [Via videolink] Your Honour, did you hear anything

20 of -- that I -- anything that I said on the previous intervention?

21 Your Honour, can you hear me on this microphone?

22 [Technical difficulty]

23 MR. TROOP: [Via videolink] Your Honour, I'm just checking to see

24 if you can now hear me or if anyone else in the courtroom can now hear

25 me.

Page 2379

1 I'll take that as a no.

2 [Technical difficulty]

3 THE REGISTRAR: [Via videolink] Your Honours, can you hear me now?

4 JUDGE MOLOTO: Yes, ma'am. [Microphone not activated]

5 THE REGISTRAR: [Via videolink] I will give the floor to

6 Mr. Troop, if you don't mind, Your Honours.

7 JUDGE MOLOTO: Thank you so much, ma'am.

8 Yes, Mr. Troop.

9 MR. TROOP: [Via videolink] I can hear you now. I think you all

10 can hear me now, Your Honour. I'll just check to make sure everyone

11 behind me can follow the proceedings.

12 Yes, the problems appear to have been solved for the time being.

13 Thank you.

14 JUDGE MOLOTO: Thank you so much, Mr. Troop.

15 Once again, we apologise for the interruption, Mr. Rogers, but

16 you may proceed now.

17 MR. ROGERS: That's all right, Your Honour, I'll try again.

18 Q. Mr. Witness, you were telling us about the presence of

19 Ramush Haradinaj at the Jabllanice headquarters when the body of

20 Skender Kuqi was being moved, and I was asking you whether, from where

21 you were able to observe, whether, in your view, Mr. Haradinaj was able

22 to see what had happened to that body, in terms of its movement.

23 A. I said earlier that he didn't see when he was beaten up, but the

24 condition the body was in was seen not only by Ramush Haradinaj but by

25 thousands of people.

Page 2380

1 Q. [Previous translation continues] ... did you hear anything said

2 by Ramush Haradinaj as that body was being moved? Did you hear him say

3 anything either before or after the movement of the body, please?

4 A. Yes, he was very concerned about what happened to that man. And

5 there was a problem between him -- him and Lahi in relation to the fact

6 that that body was reduced to that situation.

7 Q. What did you hear him say? Ramush Haradinaj.

8 A. Why did you do that to him?

9 Q. I want to ask you, please, with -- whether you recall seeing

10 Mr. Haradinaj at the Jabllanice headquarters on any other occasion when

11 you were also present at Jabllanice.

12 A. I remember to have seen him at that moment.

13 Q. That wasn't my question. My question was whether you recall

14 seeing him on any other occasion when you were present at the Jabllanice

15 headquarters. By that, I mean any other occasion other than the occasion

16 in which we're dealing with Mr. Kuqi.

17 A. He was there several times. But in the case of Kuqi, that was

18 when I saw him.

19 Q. Could you tell me about the other times that you saw

20 Mr. Haradinaj at the Jabllanice headquarters?

21 MR. EMMERSON: Sorry. Just looking at the witness's last answer,

22 he seems to say the only time he saw Mr. Haradinaj was in -- on the last

23 occasion with Skender Kuqi, although he's aware that he was there on

24 other occasions. So before Mr. Rogers proceeds --

25 JUDGE MOLOTO: Let him clarify that.

Page 2381

1 MR. ROGERS:

2 Q. How many --

3 JUDGE MOLOTO: Mr. Witness, how many times did you see Mr. -- let

4 me talk first and then -- before you answer, Mr. Witness.

5 How many times did you see Mr. Ramush Haradinaj at the

6 headquarters, Jabllanice?

7 THE WITNESS: [Interpretation] I said earlier, Your Honour, I saw

8 him several times. He was commander there.

9 JUDGE MOLOTO: Thank you so much. You saw him several times at

10 the Jabllanice headquarters. Thank you.

11 You may proceed, Mr. Rogers.

12 MR. ROGERS: Thank you.

13 Q. I would like you to tell us, please, about the other times when

14 you saw Ramush Haradinaj at the Jabllanice headquarters.

15 When was the first time that you saw him there?

16 A. I said. In the case of Skender Kuqi, I saw that he was there

17 when he came. He came other times, but I didn't go near him to know why

18 he came.

19 Q. Were those other occasions before or after the Skender Kuqi

20 incident?

21 MR. EMMERSON: That question has already been asked and answered.

22 MR. ROGERS: No, it hasn't -- [Overlapping speakers] ...

23 MR. EMMERSON: [Overlapping speakers] ... questions earlier on I

24 saw him the first time in Jabllanice and in Baran several times. I saw

25 him in Jabllanice for the first time when Skender Kuqi died.

Page 2382

1 That's the witness's testimony.

2 MR. ROGERS: But it appears to been inconsistent with the answers

3 he's just given, so --

4 MR. EMMERSON: No, it doesn't.

5 MR. ROGERS: Yes, it does. So we're trying to clarify it.

6 Now, if Your Honours consider it's not a proper question, then we

7 move on. But it appears to me, in the light of the answers, to be a

8 proper question, respectfully.

9 JUDGE MOLOTO: Yes, you may proceed. It's a proper question.

10 MR. ROGERS: Thank you, Your Honours.

11 Q. So, Mr. Witness, if you would kindly answer my question.

12 Was -- the occasions when you saw Ramush Haradinaj at the

13 Jabllanice headquarters, were they before or after the incident with

14 Skender Kuqi?

15 A. Before the incident with Skender Kuqi.

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 Q. And what was Ramush Haradinaj doing when you saw him there at the

21 Jabllanice headquarters?

22 A. He was sitting there, and he was listening to the threats made to

23 us by Lahi and his brother Nazmi, people who were in the staff, most of

24 whom I didn't know.

25 Q. And at that time when he was sitting there listening to the

Page 2383

1 threats, did you know who he was? And how did you know who he was at

2 that time?

3 A. It was there that I found out who he was, and then I got to know

4 him. Until then, I didn't know him at all.

5 Q. So who was it that told you - and anybody else present

6 listening - that this man was Ramush Haradinaj?

7 A. Lahi Brahimaj told me that this is the Dukagjin commander, and

8 gave the name. He said, This is Ramush Haradinaj.

9 Q. What was your understanding of the nature of the relationship

10 between Lahi Brahimaj and Ramush Haradinaj?

11 MR. EMMERSON: Objection. Objection. Objection. On what basis

12 is the witness in a position to give that evidence?

13 JUDGE MOLOTO: Mr. Rogers.

14 MR. ROGERS: We won't know till he answers it, as to what his

15 understanding of the nature of the relationship was. Then he can explain

16 where he gets that understanding from.

17 JUDGE MOLOTO: Overruled.

18 Yes, Mr. Rogers.

19 MR. ROGERS:

20 Q. Please answer the question. What's your understanding of the

21 nature of the relationship between Ramush Haradinaj and Lahi Brahimaj?

22 A. My understanding was that they were very close to each other.

23 Q. In what way close? Could you just explain that a little bit

24 more, please?

25 A. To my knowledge, they are nephew and uncle, maternal uncle.

Page 2384

1 Q. Which is the nephew and which is the maternal uncle?

2 A. Nephew is Ramush; and the maternal uncle is Lahi.

3 Q. What was your understanding at that time of the nature of any

4 relationship, so far as the KLA was concerned, between Ramush Haradinaj

5 and Lahi Brahimaj?

6 You've told us that they were commanders. Can you tell us,

7 please, whether one was in charge of the other, or what the nature of

8 that relationship was, please.

9 A. Well, Lahi was commander of Dushkaja, Jabllanice.

10 Ramush Haradinaj was commander -- general commander of the staff for the

11 Dukagjini plain.

12 Q. So where did the -- as you understand it, where did the

13 Jabllanice command fit into that relationship?

14 MR. EMMERSON: Can Mr. Rogers please identify what period of time

15 he is talking about, because obviously the Trial Chamber already has

16 independent records of the date upon which Mr. Haradinaj was elected as

17 commander of the Dukagjini plain -- [Overlapping speakers] ...

18 MR. ROGERS: [Overlapping speakers] ... can Mr. Emmerson

19 not testify about that --

20 JUDGE MOLOTO: [Overlapping speakers] ... please don't give

21 evidence about that --

22 MR. EMMERSON: I'm not testifying -- [Overlapping speakers] ...

23 MR. ROGERS: [Overlapping speakers] ...

24 MR. EMMERSON: Well, let me make my objection clear.

25 JUDGE MOLOTO: Well, you are not -- you didn't make an objection.

Page 2385

1 You asked if a question can be asked in a way that you suggest. You

2 asked him to give a time-frame. Let's -- let's deal with that.

3 MR. EMMERSON: Yes, the date upon which this witness is referring

4 to.

5 JUDGE MOLOTO: [Overlapping speakers] ... don't explain why you

6 asked for a time-frame.

7 Yes, go ahead.

8 MR. ROGERS: No, I'm entirely happy to do that, of course. And

9 perhaps, Your Honour, just for the record, Mr. Emmerson could refrain

10 from attempting to put evidence in the record.

11 MR. EMMERSON: [Microphone not activated] ... it's already in the

12 record.

13 MR. ROGERS: Yes, but not when witness is sitting there, because

14 it's inappropriate. If he wants to make an objection about the form of

15 the question, that's fine.

16 JUDGE MOLOTO: I thought the Bench dealt with that, Mr. Rogers.

17 Thank you so much.

18 MR. ROGERS: Forgive me.

19 Q. Mr. Witness, what -- what -- at what time -- you've referred to

20 the relationship in terms of the command of the Dukagjin zone. When was

21 this -- what time was your understanding of that relationship? What time

22 are we talking about, in 1998?

23 A. From May to -- to the arrival of Tahir Zemaj in Baran and

24 Prapaqan.

25 Q. And when was that, please? When was that arrival?

Page 2386

1 A. Tahir Zemaj came in June. Sometime in June.

2 Q. On this occasion when the -- the introduction took place, in what

3 (redacted)

4 (redacted)

5 had it introduced -- had -- Ramush Haradinaj was introduced to you?

6 A. This was in May.

7 Q. And on this occasion when Ramush Haradinaj was introduced, did he

8 say anything himself? (redacted)

9 A. No, he didn't say anything.

10 Q. What -- when was the next time that you saw Ramush Haradinaj at

11 the Jabllanice headquarters?

12 A. It was during the incident with Skender Kuqi that I saw him the

13 next time.

14 Q. Do you recall now seeing him on any other prior occasion?

15 A. I can't remember. I told you that I saw him several times, but I

16 remember seeing him in the case of Skender Kuqi and the other occasion

17 (redacted).

18 Q. Mr. Witness, I want to ask you now about the occasion --

19 occasions when you were beaten yourself.

20 Yesterday you told us, at page 79 of the transcript -- sorry,

21 forgive me. -- occasions when you were present when there were beatings.

22 Just let me take you to that. Page 79 of the transcript from

23 yesterday. I was asking you about the time when you were detained and

24 you saw Jah Bushati who was detained there; do you recall that?

25 A. [No verbal response]

Page 2387

1 Q. You're nodding.

2 A. Yes, yes.

3 Q. Can I just remind you. At page 79 of the transcript, you said:

4 "I saw Jah when he was beaten, and then he was released and

5 became a good soldier, as they called him, and he obeyed the orders of

6 the people who gave him orders.

7 "I heard then [sic], there, when he had an order to attack some

8 brothers from Baran --"

9 I interrupt you and I said:

10 "I didn't ask you about him. I asked you about whether you saw

11 anybody else being beaten."

12 And you said:

13 "I saw him. So, far for the time I was there, I saw Jah."

14 What I want to ask you is: When Jah was there as a detainee, did

15 you see anybody else on any occasion being beaten whilst you were there?

16 A. At that moment, there was another person, but I can't remember

17 who he was. I think he was from Gjakova, and he became a soldier of the

18 KLA as well. But he was beaten as well, just like Jaha [as interpreted].

19 Q. You told us yesterday as well about some other people who were

20 beaten. One other person whose name you told us was a neighbour. I'm

21 not going to mention the name, but you told him -- told us he was

22 somebody you knew from the village.

23 Apart from Jah, that person and --

24 MR. EMMERSON: Can we have a transcript reference, please.

25 MR. ROGERS: The reference is at page 89 on line 11 and -- 11,

Page 2397

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 Q. And when you saw them again, what were you doing there? Why were

11 you in Jabllanice?

12 A. I was detained, too. And when they were arrested, I tried to

13 help them flee that place, to go to their homes, but I was threatened

14 also.

15 Q. And who threatened you?

16 A. These people who took those kids to Jabllanice. They told me,

17 It's not good of you to speak out or to release them, because we are

18 going to kill you, too.

19 Q. And do you know where these young people were kept when they were

20 in Jabllanice?

21 A. There, in the staff, or the staff prison, if I might say so.

22 Because there was a prison there, a terrible prison, a prison that I

23 cannot describe.

24 Q. Is this the same place that you've been talking to -- been

25 telling us about during the course of your evidence, where people were

Page 2398

1 detained?

2 A. Yes, yes. There was a prison and also a staff. There was also a

3 sort of kitchen, which means that the army came to eat there, and I

4 (redacted).

5 Q. Now, you told us that these young people were people that you'd

6 seen beaten. Did you see that happen in this place, in the prison at

7 Jabllanice?

8 A. Yes, I saw them being beaten up.

9 Q. Could you tell us, please, what happened to them.

10 A. They were beaten up, brutally, black and blue, and it is hard for

11 me to describe the way they were beaten up there. And that's why --

12 that's one of the reasons that I don't feel well today, that I can't

13 sleep well today, because I think of them.

14 Q. Mr. Witness, whilst this may be difficult for you, please, could

15 you explain to the Court, because the Court needs to understand,

16 precisely what it was that you saw happen to these young people.

17 So could you tell us.

18 A. As I said earlier, it is hard for someone when someone else asks

19 you for help and you can't help him, but I'll try to describe, as far as

20 I can remember, what I saw.

21 They were very badly beaten up, but I don't know anything about

22 their future fate.

23 Q. What happened to them? What did you see happening? And can you

24 tell us, please, who was carrying out the beating?

25 A. Part in the beatings took many people -- there were many people

Page 2399

1 who took part in the beatings. I think they were there purposely for

2 that. I can't name them because I don't know the names. But there were

3 many people involved. There are other people like Lahi Brahimaj who saw,

4 himself, his brother Nazmi, saw for himself when these people were being

5 beaten. Or Idriz Balaj. They know very well what happened. They should

6 say. If they do have a heart and a soul, they should speak out the

7 truth. Because, in my opinion, they were very young people, those who

8 were being beaten.

9 Q. You mentioned Idriz Balaj. Can you tell us a little bit about

10 him, please? Why did you mention his name?

11 A. Why I mention his name? Because he didn't help those young men.

12 Because he was in a position to do something about them, to release them.

13 Even beaten up as they were, he might have let them go home.

14 Q. What, if anything, did you see him do during the course of this

15 beating?

16 A. I said that they were badly beaten, and I am repeating. The most

17 horrendous way. But I am unable to describe. I said, because of those

18 memories I don't feel well today. I feel very bad. I can't sleep

19 properly because of those things.

20 Q. Mr. Witness, would you please answer my question.

21 What, if anything, did you see Idriz Balaj do during the course

22 of those beatings?

23 A. I said already that he didn't give any orders for these young

24 people to be released, to go home. He himself maltreated them.

25 Q. How did he maltreat them?

Page 2400

1 A. He took part in their beating.

2 Q. Please describe precisely what he did.

3 A. These people were beaten up until their -- until they peed in

4 their clothes. They couldn't hold in their pee.

5 Q. Mr. Witness, whilst this may be difficult for you to describe,

6 please, would you answer my question: What exactly did you see

7 Idriz Balaj do?

8 A. He beat these people much. One of them was hurt. He was beaten

9 to a pulp, if I might say so. He was in a very bad condition. I told

10 you they urinated in their own clothes.

11 Q. How was Idriz Balaj beating these people? In what way? And what

12 with, if anything?

13 A. I said he brutally beat them, and I am repeating. They were so

14 badly beaten up and -- that I couldn't even look at their beatings.

15 JUDGE MOLOTO: Mr. Witness, please try to listen to the questions

16 and try to answer the questions directly. And we understand that this

17 may be very difficult for you. The question that you are being asked is:

18 What, if anything, did Idriz Balaj beat the children -- the kids with?

19 Are you able to tell us?

20 THE WITNESS: [Interpretation] Your Honour, I said that they were

21 beaten with sticks. One of them was in a very bad state. He had his ear

22 cut off.

23 I don't know what more to say.

24 MR. ROGERS:

25 Q. Who cut the ear off?

Page 2401

1 A. I'm repeating. And if these people are alive somewhere, they can

2 confirm what I'm saying. And the persons might know who the person who

3 cut his ear off was.

4 Q. Who was the person that cut of ear off?

5 A. From what I saw, it was Idriz Balaj.

6 Q. How did he do that, please?

7 A. With a knife.

8 Q. Can you describe the knife?

9 A. It was a knife. I cannot describe the knife. If you show me the

10 knife, I might -- I might not be able to say that that was the knife, but

11 it was a knife. Very sharp knife.

12 I can't say -- be more precise.

13 Q. When he cut the ear off, did you hear him say or speak anything?

14 A. He cried, Oh, my mother, he said. Please help me. But we were

15 unable to offer any help to anyone.

16 Q. It's my fault for the question.

17 Who was crying and saying, Help?

18 A. The persons who were being beaten up and the person whose ear was

19 cut off.

20 Q. What, if anything, was Idriz Balaj saying at the time of the

21 beating or the ear cutting-off?

22 What, if anything, did you hear him say?

23 A. I heard that they should arrange his papers to go to Drenica or

24 somewhere else, I don't know.

25 Q. Who was saying, Take -- Arrange the papers for Drenica?

Page 2402

1 I'll ask you to explain what it means, if you know, in a minute.

2 But just -- first of all, just who was it that was saying that,

3 that you heard, please?

4 A. Idriz Balaj was the person.

5 Q. And do you know who he was talking to at all?

6 A. To people who were there, Lahi Brahimi and people like him.

7 Q. You say, "People like him." Can you tell us, please, a bit more

8 about the people like him. Who else like him was there?

9 A. Whom do you mean?

10 Q. Well, you referred to people like Lahi Brahimaj. What do you

11 mean by "people like him"? What sort of people like him?

12 A. Nazmi Brahimaj, Alush Agushi were there. Myftar Ibrahimaj,

13 Naser Ibrahimaj, all of them. They were related.

14 Q. Were any commanders from any other areas present?

15 A. No, I don't recall anyone else.

16 Q. Do you recall any other family members of the Brahimajs being

17 present?

18 A. I told you. Myftar, Myftar Ibrahimaj. The ones I mentioned. I

19 don't recall anyone else.

20 Q. I want to ask you specifically whether you recall seeing

21 Mr. Haradinaj being present during the course of that incident. By

22 Mr. Haradinaj, I mean Ramush Haradinaj.

23 A. I don't recall. A long time has passed. I don't know. I'm not

24 certain.

25 Q. Could you tell us a little bit more, please, about who

Page 2403

1 Idriz Balaj was? What -- what was his position?

2 A. From what I gathered and from what I heard in the staff,

3 Idriz Balaj was the commander of the Black Eagles. And during all the

4 time, he was there for the worst; unfortunately for many Albanians. And

5 that was the case also after the war. He did the same things he did

6 during the war also after the war, jeopardizing the life of many people.

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 Q. That was my fault. In relation to the -- the prison in

15 Jabllanice, did you see whether they had come from any part of that

16 prison area before they were beaten, or did you just see them in the

17 place where they were being beaten?

18 A. They came from the cellar. There was a cellar there as part of

19 the prison.

20 Q. Were you able to see them coming from pris-- the cellar? Is that

21 something you saw yourself?

22 A. Yes.

23 Q. And what condition were they in when they were brought from the

24 cellar?

25 A. Their clothes were wet. They were beaten up. They had bruises

Page 2404

1 on their bodies.

2 Q. Were they able to move freely or were they tied in any way?

3 A. They were tied, one after another.

4 Q. Can you describe how they were tied, please?

5 A. They were -- their hands were tied to -- to each other.

6 Q. When you say "their hands were tied to each other," do you mean

7 their individual hands were tide, or that they were tide the three of

8 them together?

9 A. They were tied to one another. That is - how can I say? - like a

10 chain. How can I explain better?

11 Q. And for how long did this, the beating of these individuals, take

12 place?

13 A. I can't say for sure, but I think they remained there for two or

14 three days, in that prison.

15 Q. Was that before or after the -- the beating that you witnessed,

16 that they stayed there for two or three days?

17 A. No, the -- the case of the beatings was the last. I didn't see

18 them after that.

19 Q. Now, you were -- can I just ask you: During the course of the

20 beating, did you hear anything being said to those people by those that

21 were beating them? Did you hear any words being said to them; and, if

22 so, what?

23 A. I heard these words, because they said these words also to me:

24 Look out. Your day will come, too, when you will be like them.

25 Q. Can you recall anything else that was being said to those people

Page 2405

1 as they were being beaten by ...

2 A. I said even earlier that they said, We will arrange for your

3 papers to go to Drenice. That is, to remove them from there.

4 Q. What did you understand that meant?

5 A. In my opinion, that meant that they would no longer be seen.

6 And, in fact, they were no longer seen after that moment. I don't know

7 anything about their fate. Or in Drenice there was another similar

8 prison or something like that.

9 Q. Can I clarify with you so I understand. What do you mean by that

10 they would no longer be seen? The papers for Drenice.

11 A. It means that they would be killed or would not longer be seen

12 alive. And, in fact, I haven't seen them. I don't know whether they are

13 alive or not -- dead.

14 Q. How did you know that that is what papers for Drenice meant? How

15 did you learn that?

16 A. I am saying this based on some things that happened to some other

17 people before. These were circulated. Make the papers, prepare the

18 papers for Drenice. And such people were no longer seen.

19 Q. When you heard those words being used on other occasions, who did

20 you hear using them?

21 A. The people who were in Jabllanice that I mentioned earlier. They

22 were doing some form of propaganda, or whether this was true, I don't

23 know. But some of the people that I saw in the prison there, I never saw

24 again, I never was able to contact again.

25 Q. After the beating finished, what did you see happen to the --

Page 2406

1 those three individuals?

2 A. I don't know what happened to them after that. I left the place,

3 and I don't know.

4 Q. When you left the place, were the individuals still there, or had

5 they -- had they left the place as well but before you?

6 A. No, they left. I didn't see them again.

7 Q. Do I understand your answer to be that they left before you left?

8 A. Yes. I didn't see them again. They left before me.

9 Q. And did you see how they left or who took them away?

10 A. Soldiers took them. I can't say any names here because I'm not

11 sure who took them. They were taken from there, and from that moment on

12 they were not seen again.

13 Q. What was Idriz Balaj doing at the time that these people were

14 taken?

15 A. I told you. At the time, he was a commander, wearing a black

16 uniform.

17 Q. Do you know who issued the orders to the soldiers to take the

18 people away?

19 A. I think I explained clearly that the people, the names of whom I

20 mentioned earlier - Lahi, Alush Agushi, Idriz Balaj - were the ones who

21 were taking those kinds of decisions.

22 Q. Did you hear who -- who or which one of those individuals issued

23 the orders to the soldiers to take these people away?

24 A. Idriz Balaj himself.

25 Q. Thank you. What was Lahi Brahimaj doing during the course of

Page 2407

1 this beating?

2 A. He was watching all those things. He was carrying out his tasks,

3 whatever tasks he had. He knows those things. But he saw with his own

4 eyes. Neither Lahi nor Nazmi and the other people that I mentioned

5 cannot -- can say that they didn't see what happened there.

6 Q. Did you see him take any part in the beating, himself?

7 A. Yes. And I take full responsibility when I say that the -- that

8 Lahi and Nazmi, the two brothers, took part in their beating.

9 Q. Can you tell me, please, what exactly Lahi Brahimaj did during

10 the course of the beating?

11 A. I explained earlier that they beat them with a stick, and they

12 were crying, Oh, my mother, oh, my mother. And I don't know -- I told

13 you earlier, and I don't know how clear I was before, but I can't speak

14 about these things very much.

15 Q. Did you see Lahi Brahimaj himself using a stick?

16 A. Yes. I told you earlier I saw him myself. I saw his brother as

17 well.

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 2425

1 THE REGISTRAR: [Via videolink] Your Honours, we're back in open

2 session.

3 JUDGE MOLOTO: Thank you so much, ma'am.

4 Yes, Mr. Rogers.

5 MR. ROGERS: Your Honours, there are some memory-refreshing

6 issues that I wish to raise relating to the role of Mr. Haradinaj

7 concerning the prior statements that we have. Really confined to

8 presence, whether he was or wasn't present and what this witness has said

9 about that on the particular occasions. I need to just identify, in the

10 light of the evidence that we've heard, the precise references and

11 passages that I would wish to show to the witness to refresh his memory.

12 And then I can proceed with Your Honours' leave to do so once we have

13 laid a foundation. But I'd said to my learned friend that I wouldn't go

14 into this with him at all until -- in his presence or even begin to lay a

15 foundation, because I know that he may wish to make some representations

16 about it, which is why I'm raising it in the way I am now.

17 JUDGE MOLOTO: Yes, Mr. Emmerson.

18 MR. EMMERSON: Your Honour, I object to the use of prior

19 statements for memory refreshing in the light of the testimony that the

20 witness has just given. So Mr. Rogers has not yet identified the

21 passages that he's referring to, but I can anticipate what they would be.

22 And if we can start with the evidence that's just been given, because

23 it's fresh in everybody's memory, Mr. Rogers wishes to put to the witness

24 evidence concerning the presence of Mr. Haradinaj, which is -- which is

25 derived from the accounts given by this witness in previous statements,

Page 2426

1 that Mr. Haradinaj was present (redacted)

2 (redacted).

3 Now, the testimony the witness has given is not testimony that

4 says, I can no longer recall one way or the other because, due to the

5 lapse of time, my memory has faded. If that were the position, then I

6 would have no objection to the use of a prior statement at a time when

7 his memory would have been fresher in order to refresh his memory.

8 But his testimony is, first of all, that there were two people

9 called Ramush who visited Jabllanice --

10 JUDGE MOLOTO: [Microphone not activated] ... Haradinaj.

11 MR. EMMERSON: No, Ramush. Ramush. But not Ramush Haradinaj.

12 Two people with the first name Ramush. That he heard that name being

13 used and that he had heard a rumour afterwards that Ramush Haradinaj had

14 been present. However, (redacted), he never saw the

15 man or was not in a position to identify him. So whatever he may have

16 said to the Prosecutor at times in the past in relation to that, it

17 cannot conceivably be said that this is a memory-refreshing situation,

18 because what the witness has now told Your Honours unequivocally is that

19 the impediment to any possible recognition in a reliable form was an

20 impediment that existed at the time of the incident. That's not a

21 memory-refreshing situation at all. And if what Mr. Rogers wants to do

22 is to explore why it was that notwithstanding that he in fact didn't see

23 Mr. Haradinaj he told the Prosecutor that he did, well, there is some

24 explanation on the record already, namely, that he heard the name and he

25 heard some rumours, but in any event that exercise would not be a

Page 2427

1 memory-refreshing exercise. It would be impeachment and it would be a

2 situation where Mr. Rogers was applying to turn the witness hostile. And

3 that, of course, is a matter for the Bench to determine and for the Bench

4 to control.

5 But were we to reach the position that Mr. Rogers wished to apply

6 to turn the witness hostile, there would be submissions to be made as to

7 whether this is a situation of hostility at all. But more importantly,

8 hostility, that's to say impeaching the witness on the basis that they're

9 not telling the truth, would require this witness to be given the

10 opportunity that you've offered him already and that he's claimed, namely

11 to be warned of his right to protection against self-incrimination for

12 the offence that that would involve, and the legal representation which

13 he's been offered and has sought to claim.

14 We're not yet at the impeachment stage, but what Mr. Rogers is in

15 fact trying to do is to impeach under cover of memory refreshing. And

16 for the reason I've already outlined, memory refreshing simply will not

17 do as an excuse in this current situation in the light of the testimony

18 that's been given. It's not at memory-refreshing situation. He's not

19 saying, My memory has faded. He's saying, Because of something that was

20 situational at the time, I could not give a reliable account then, and I

21 can't give a reliable account now. Nothing has changed.

22 That's the first point.

23 Secondly, insofar as the identification of Mr. Haradinaj as

24 having been present on the day when (redacted)

25 at the Jabllanice headquarters, whilst the witness originally said, I

Page 2428

1 cannot now remember for sure one way or another, he has now enhanced that

2 testimony by explaining that at the time that he saw the person he

3 believed to be Mr. Haradinaj present, he was "surrounded, protected,

4 surrounded by people" -- just give me one moment.

5 MR. ROGERS: I hate to the cut off Mr. Emmerson in his prime, but

6 I haven't actually made an application yet. And he appears to be

7 answering something that I haven't yet done.

8 MR. EMMERSON: Well, we'll see what -- I'm anticipating what the

9 form of the application is going to be, but perhaps if Mr. Rogers is in a

10 position to make it -- [Overlapping speakers] ...

11 JUDGE MOLOTO: I think you have made your anticipation.

12 Make your application, Mr. Rogers.

13 MR. ROGERS: Your Honour, what I asked for was a little time to

14 identify - that was my application - to identify the passages that I wish

15 to rely upon, and to look at the -- what records we have of the answers

16 that were given during the course of testimony. Now, Mr. Emmerson's

17 picked on one, but I seem to recall that there were others that indicated

18 the witness wasn't now able to recall.

19 JUDGE MOLOTO: Can we just identify those portions that you want

20 to refresh the memory of the witness on. And once you have done that, I

21 think you are going to have to deal with whether that is memory

22 refreshing or impeachment in the sense in which Mr. Emmerson has put it.

23 MR. ROGERS: Your Honour, yes. I appreciate that. But I want

24 some time to do that in the light of the -- it's all very well to --

25 [Overlapping speakers] ...

Page 2432

1 I can call it the ear-cutting incident. And I wish to take the witness

2 to those portions of his prior statements which deal with the presence of

3 Mr. Haradinaj during the ear-cutting incident.

4 And also there is a transcript of the -- of an interview

5 conducted by the Prosecution a form of proofing interview, if I can call

6 it that way, in which the incident again was also discussed, where the

7 witness also referred to the presence of Mr. Haradinaj during the

8 ear-cutting incident. (redacted)

9 (redacted)

10 (redacted)

11 (redacted), but they are --

12 JUDGE MOLOTO: [Microphone not activated] ... but in all occasions

13 he's --

14 MR. ROGERS: On all occasions he --

15 JUDGE MOLOTO: But in both occasions he couldn't put Haradinaj on

16 the scene?

17 MR. ROGERS: Yes.

18 (redacted)

19 (redacted)

20 (redacted), and wish

21 to put before the Court what we say is -- is in the statement that was

22 previously given from the witness in which he said Mr. Haradinaj

23 participated in that activity and was part of it.

24 Now, of course, you've heard his accounts as we have gone

25 through. I have asked him whether he recalls the presence of

Page 2433

1 Mr. Haradinaj and he said he did not recall, did not remember, and

2 that's certainly --

3 (redacted)

4 (redacted).

5 (redacted)

6 (redacted). Count 1, he also says he didn't recall whether

7 anybody -- Mr. Haradinaj was there. That's Count 1.

8 (redacted)

9 (redacted). And -- but nevertheless he says,

10 I don't remember now what happened then. And we would say, when you look

11 at the prior statement, at the time that that prior statement was given

12 he clearly was in a position to recall, because he provided a -- an

13 account relating to that. His position today is not that different. His

14 position today, in a sense, is, I don't remember what happened, and he

15 gives a partial explanation, or another explanation, as my learned friend

16 would say, as to why that is the case. (redacted)

17 (redacted). He was

18 able to give an account that was different.

19 Your Honours, in any event, if we were to move on to the next

20 stage or to --

21 No, just let me finish, if you would be so kind. Just let me

22 finish.

23 If we were to move on to the next stage, which would -- one could

24 be an application to treat the witness as hostile, we have to go through

25 a memory-refreshing process first to give the witness the opportunity to

Page 2434

1 look at the prior statements and comment on whether it does refresh his

2 memory or not refresh his memory, because the Appeals Chamber has

3 indicated that is the correct process.

4 So, in order to get to stage 2, which we may never have to reach,

5 because when the witness is shown his prior statements, he can speak

6 about them and give an explanation as to why something that he signed is

7 different from what appears to be his account now that he can't remember.

8 And he may say, Oh, now I've looked at the thing, it's all come flooding

9 back to me. I don't know what he's going to say. But we must at least

10 go through that process, to give him the opportunity to comment upon or

11 see what it is that he said previously in the normal way. You made a

12 prior statement -- or I haven't laid the foundations yet. I haven't

13 asked because my learned friend, and I raised it with him earlier, and I

14 respected what we agreed, which is I wouldn't go into laying a foundation

15 for a memory-refreshing application because that -- we -- we wanted to

16 raise it first.

17 Now, suddenly we have developed into a full-blown application at

18 this stage when, in fact, the foundation hasn't even been laid, because

19 we don't know whether the witness would agree he saw he had a statement,

20 he saw it, he signed it. He can at least be shown the front piece of the

21 statement and said, you know, (redacted), did you make a statement?

22 Yes. Was it read back to you? Yes. Did you understand it? Assuming.

23 Yes. You signed it? Et cetera.

24 JUDGE MOLOTO: Mr. Rogers, might just -- you are saying you

25 are -- you want to refresh the witness's memory? I just want to remind

Page 2435

1 you that you in your own submissions now have thrown in terms like

2 "previous inconsistent statements" or "previous statements." And I've

3 tried to listen to you very carefully. I've tried to remember that the

4 evidence as I've heard it today from the witness, sitting as I -- where I

5 am, (redacted)

6 (redacted). That's something that we'll look at later. But looking at what

7 the witness has said today and yesterday, I see more of -- for -- judging

8 from what you are saying, I see more of previous inconsistent statements

9 rather than memory refreshing. And I'm just saying, if you're going to

10 do what you are going to do, you've got to be prepared to take the

11 consequences of --

12 MR. ROGERS: Your Honour --

13 JUDGE MOLOTO: I'm not -- it's not a threat. I'm just saying to

14 you that I'm not quite sure I understand this is memory refreshing.

15 MR. ROGERS: Your Honour, it is memory refreshing, as I want to

16 show to the witness something that he said previously about incident that

17 he has testified he cannot remember about now, and that's all he's done.

18 He said, I can't remember about Count 1, which is the ear-cutting

19 incident. I can't remember whether --

20 JUDGE HALL: If I might interrupt, Mr. Rogers. (redacted)

21 (redacted)

22 (redacted)

23 (redacted). What we're hearing is the witness's

24 account of what happens as he recalls. And as Mr. Emmerson -- the

25 distinction Mr. Emmerson made in his first response, when you adumbrated

Page 2436

1 what you were about to do, is that this is not a case where the witness,

2 today, is saying that he can't recall, as I just understood you to have

3 recount-- represented the witness to say. What he said today is that on

4 the occasion I was not in a position to observe this.

5 MR. ROGERS: But in relation to the first incident, that's not

6 what he's -- oh.

7 [Trial Chamber confers]

8 MR. EMMERSON: Would it assist Your Honours to have copies of the

9 LiveNote transcript of the relevant passage which has just been provided

10 to us from The Hague?

11 JUDGE MOLOTO: [Microphone not activated] ... it might just be --

12 MR. EMMERSON: Yes. That's the passage of the transcript where

13 the witness was dealing with today's evidence. The passage where he

14 dealt with his memory of the ear-cutting incident, I'm afraid I've only

15 got one copy of, and it's page 39 of the transcript. I'll read it to

16 Your Honours. And this is Mr. Rogers answering [sic] the question.

17 "I want to ask you specifically whether you recall seeing

18 Mr. Haradinaj present during the course of that incident. ...

19 Mr. Haradinaj, I mean Ramush Haradinaj.

20 "A. I don't recall. A long time has passed. I don't know. I'm

21 not concern."

22 What he then did, as Your Honours will see, is to qualify that by

23 saying that on the occasion when he was present --

24 JUDGE MOLOTO: [Microphone not activated] ... read that

25 qualification.

Page 2437

1 MR. EMMERSON: Read it again?

2 JUDGE MOLOTO: [Microphone not activated] ... you say you'll see

3 that he qualifies --

4 MR. EMMERSON: Yes, you'll see in that passage -- well, it's

5 quite a complicated link to draw. In that passage he said that on the

6 occasion when (redacted), he was unable to see

7 Mr. Haradinaj clearly because he was surrounded by people and he only got

8 a glimpse of him. The important point being that when go you to the

9 witness statement, he gave an entirely different account of when the

10 ear-cutting incident happened, saying that it happened on the same

11 occasion (redacted), an occasion on which he

12 now says the man he thought was Haradinaj was surrounded by other people.

13 So the notion that that can be used as a member refreshing

14 document in the circumstances of such an account, which has changed so

15 fundamentally, because the original account was that the ear-cutting took

16 place (redacted),

17 that is the occasion on which he now says he was looking at a man

18 surrounded by other people and barely got a glimpse of him.

19 Now, I can take you, if I need to in response, to the relevant

20 passages of that witness statement that Mr. Rogers is seeking to rely on.

21 But Your Honours can take it from me that he -- (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted), and that is

Page 2438

1 the incident he's just said he only caught a brief glimpse of

2 Mr. Haradinaj surrounded by other people.

3 MR. ROGERS: Your Honours, Mr. Emmerson seeks to make submissions

4 which effectively are matters that should be dealt with during the course

5 of cross-examination about prior inconsistencies of dates and times and

6 events. What is quite clear is that this witness has only ever described

7 one ear-cutting incident. And the question is: Was this accused present

8 or not during the course of that ear-cutting incident.

9 And Mr. Emmerson can go up hill and down with the different days

10 and accounts and events and all those other matters. The simple question

11 is, is when the ear was cut off, was he there or wasn't he?

12 JUDGE MOLOTO: [Microphone not activated]

13 MR. ROGERS: The witness has consistently stated --

14 JUDGE MOLOTO: What did he tell us today about -- about --

15 [Overlapping speakers] ...

16 MR. ROGERS: He can't remember. And he said today, when I asked

17 him specifically:

18 "I want to ask you specifically whether you recall seeing

19 Mr. Haradinaj being present during the course of that incident.

20 "I don't recall. A long time has passed. I don't know. I'm not

21 certain."

22 Q. And that's precisely the part that my learned friend has just

23 identified for you. What he tries to do is --

24 JUDGE MOLOTO: [Overlapping speakers] ... what -- what -- where on

25 the transcript is that?

Page 2439

1 MR. ROGERS: I don't have a page reference, Your Honour. I'm

2 sorry. I'm just got -- I have got an unpaginated version, but that's

3 what he said.

4 JUDGE MOLOTO: Because Mr. Emmerson referred us to page 39, and

5 we've been given a document that starts at page 53.

6 MR. ROGERS: I don't think there's any dispute about what was

7 said.

8 MR. EMMERSON: I can get copies printed out for Your Honours.

9 The question, I'll read it again:

10 "I want to ask you specifically whether you recall seeing

11 Mr. Haradinaj being present during the course of that incident. ...

12 Mr. Haradinaj, I mean Ramush Haradinaj."

13 This is the ear-cutting incident.

14 "A. I don't recall. A long time has passed. I don't know. I'm

15 not certain."

16 The point I was trying to drive home to Your Honours is that in

17 the passage which you do have the transcript of he goes on to say that on

18 the occasion (redacted) --

19 JUDGE MOLOTO: [Overlapping speakers] ... and when -- what is the

20 reference in this transcript?

21 MR. EMMERSON: You'll find that, Your Honours, at transcript

22 page 50 -- sorry. I'm so sorry. 56.

23 On the first occasion that you saw -- line 3.

24 "On the first occasion that you saw Ramush Haradinaj at

25 Jabllanice --"

Page 2440

1 MR. ROGERS: Your Honours, forgive me, could I have one that's

2 been paginated? Because I haven't got one, and everyone else seems to

3 have got one. And it's a bit difficult for us to follow.

4 MR. EMMERSON: Of course. We're printing one more. Just --

5 MR. ROGERS: Can we print it and then see it, and then I can

6 follow the argument and I can respond fairly.

7 MR. EMMERSON: So, Your Honour, on page 56:

8 "On the first occasion that you saw Ramush Haradinaj at

9 Jabllanice, which I understand was the occasion (redacted)

10 (redacted), how was he

11 being treated by other officers or commanders of the KLA? How were they

12 treating him?

13 "It was the first time for me to see him. They referred to him

14 as commander, which means that he was protected by people who stood

15 around him. He was so much protected, but there was very little of him I

16 could see."

17 (redacted)

18 (redacted). And when you look to the

19 witness statement which Mr. Rogers wants to put to him, when you look to

20 the witness statement Mr. Rogers wants to put to him, in that witness

21 statement, at paragraphs 9 through to 15, he describes the ear-cutting

22 incident in detail as having taken place on that very occasion, which is

23 obviously different from the testimony he's given here.

24 But the point is: You cannot use a witness statement to refresh a

25 witness's memory about an event which is different in time from the one

Page 2441

1 that he is now saying was the occasion on which the incident happened.

2 He now says it happened (redacted). And when he has

3 already said that he couldn't get a proper view of the person he said --

4 he was describing as Mr. Haradinaj, and now says that he can't be sure

5 that the person -- Mr. Haradinaj was present. There's certainly not a

6 foundation capable of being there.

7 And whilst Mr. Rogers says the foundational questions haven't

8 been asked, in fact they have been asked. They've been asked and

9 answered by the witness. In relation to the second incident,

10 Your Honours already have the point. In relation to the first incident,

11 that is the point. And he's given an explanation in both cases, which

12 makes memory refreshing impossible. We can deal with impeachment once

13 Your Honours have ruled on that.

14 [Trial Chamber confers]

15 JUDGE MOLOTO: The Chamber will allow you to refresh the

16 witness's memory on the ear-cutting incident where the witness says he

17 doesn't remember.

18 On the other one, the Chamber refuses your application,

19 Mr. Rogers.

20 MR. EMMERSON: Can I ask Your Honours that when the relevant

21 passage is put to him, that it's put in full, from paragraphs 9 through,

22 so that the context is clear.

23 JUDGE MOLOTO: You will have an opportunity to do that,

24 Mr. Emmerson, when you cross-examine him.

25 MR. EMMERSON: Well, with respect, it needs to be done now, as

Page 2448

1 Q. No, we understand that. But (redacted), when you were providing

2 this statement, was your memory better then, do you think, than at the

3 time you're giving your evidence today?

4 A. But even at the time that I gave the statement I might have made

5 some mistakes because I was under pressure, I was under threats. The

6 gentleman who has taken this statement knows about the threats made

7 against me. Some assassination attempts were staged against me. He

8 knows very well. The police know that too. The Hague Tribunal know what

9 I went through. I may have made some mistakes. Please explain to me

10 where the problem lies.

11 Q. Well, Mr. Witness, let me take you -- I will explain where the

12 problem lies.

13 Can I take you to paragraph 15 of the statement, please.

14 MR. EMMERSON: I don't think we've got an answer to the critical

15 memory-refreshing question, which is: Was your member better then than

16 (redacted)

17 MR. ROGERS:

18 Q. Mr. Witness, were the events fresher in your memory in two-- in

19 your mind --

20 JUDGE DELVOIE: Mr. Emmerson, I think we got a clear answer. I

21 think we got a clear answer in the first answer the witness gave.

22 MR. EMMERSON: With respect, Your Honour, the question was asked

23 once and the answer was: A very long time has passed for me to remember.

24 (redacted). The critical

25 question on which any memory-refreshing exercise has to be founded is:

Page 2449

1 Was your memory better at the time that the statement was made of those

2 events or is it better now? And there's no necessary corollary merely

3 from the chronological passage of time, because things may affect

4 people's ability to remember, which pass with time.

5 JUDGE DELVOIE: I heard an answer to that question, Mr. Emmerson.

6 If you didn't, then we have --

7 MR. EMMERSON: [Overlapping speakers] ... perhaps we can check the

8 transcript. What was the answer again, please?

9 JUDGE DELVOIE: No, I don't -- I don't think so.

10 MR. EMMERSON: Could Your Honour indicate what answer it was you

11 heard?

12 JUDGE DELVOIE: I don't have the transcript.

13 MR. EMMERSON: What was the answer? Sorry, I'm just trying to --

14 so that we can check the note.

15 JUDGE DELVOIE: I don't know.

16 MR. EMMERSON: I'm sorry, Your Honour indicated there was a clear

17 answer. Might I inquire what Your Honour thinks the clear answer was.

18 JUDGE DELVOIE: The clear answer was yes.

19 MR. EMMERSON: Your Honour thinks the word "yes" is on the

20 transcript?

21 JUDGE DELVOIE: No.

22 MR. EMMERSON: What is it that Your Honour thinks was the clear

23 answer?

24 JUDGE DELVOIE: I don't have the transcript before me,

25 Mr. Emmerson -- [Overlapping speakers] ...

Page 2450

1 MR. EMMERSON: Well, I can get it to Your Honour.

2 JUDGE DELVOIE: And I don't --

3 MR. EMMERSON: I'm very happy to provide it.

4 JUDGE DELVOIE: -- and I don't -- I don't want to go into this.

5 This is my opinion -- [Overlapping speakers] ...

6 MR. EMMERSON: I'm sure Your Honour would like to check your

7 recollection against the transcript.

8 JUDGE DELVOIE: This is what I heard. No. No, I'm not a

9 witness.

10 MR. EMMERSON: No, you're not a witness. But if you have a

11 recollection, would you like to check it against the transcript?

12 JUDGE DELVOIE: Could we stop this, Mr. Emmerson?

13 MR. EMMERSON: I'm simply asking a question, Your Honour.

14 JUDGE DELVOIE: Could we stop --

15 MR. EMMERSON: Respectfully.

16 JUDGE DELVOIE: Could we stop this, Mr. Emmerson? Please stop.

17 MR. EMMERSON: Well, I -- my submission is the question hasn't

18 been answered. I would invite a ruling of the Chamber on that question.

19 JUDGE DELVOIE: And I understood. I understood.

20 MR. EMMERSON: I would invite a ruling of the Chamber on the

21 question, not one member of the bench, and I'd like to have it done by

22 reference to the transcript, if necessary.

23 MR. ROGERS: I think the question is whether the Bench is

24 satisfied that the witness has provided an answer which indicates that

25 his memory was different -- better then than it is now. Having regard to

Page 2451

1 the totality of what he said.

2 [Trial Chamber confers]

3 JUDGE MOLOTO: I'm going to ask Judge Hall to respond on behalf

4 of the Bench.

5 JUDGE HALL: Thank you, Judge Moloto.

6 As we understand the issue that is now in contention and which

7 Mr. Emmerson raises, that is, the -- the necessity to have -- for there

8 to be on the record a clear answer to the -- what is, in our view, the

9 formal question as to whether the witness's memory was better at an

10 earlier point in time when the statement on which the other side seeks to

11 rely was better than it is now, and it is the Chamber's view that

12 whatever answer the witness gives, it is -- whereas it may be -- form the

13 foundation for future submissions, is not necessary to enable counsel who

14 is relying on it to proceed. And in our view, Mr. Rogers may proceed and

15 ask the question. Because the foundation, sufficient foundation, has

16 been laid to put the -- to have the witness refresh his memory from the

17 relevant paragraph.

18 MR. ROGERS: Thank you, Your Honour.

19 Q. Now, Mr. Witness, would you kindly turn to what is paragraph 15

20 of the Albanian version of the statement.

21 MR. EMMERSON: I object, as I said I would, for it being taken

22 out of context. It needs to be read from paragraph 9 onwards for the

23 witness to be fairly asked questions about this passage.

24 MR. ROGERS: Your Honours, perhaps this needs to be dealt with in

25 the absence of the witness. I don't think we should be debating this in

Page 2452

1 front of him.

2 JUDGE MOLOTO: We're not going to do that, Mr. Rogers. The

3 objection is overruled.

4 MR. ROGERS: Thank you.

5 JUDGE MOLOTO: And Mr. Emmerson will raise paragraph 9 when his

6 time comes.

7 MR. ROGERS: Thank you.

8 Q. Mr. Witness, look at paragraph 15, would you. And can you see --

9 just read that paragraph, if you would, to yourself. Don't read it out.

10 A. Is it possible to help me what is at issue in this paragraph?

11 Q. Yes, I will. But I want you to read it first to yourself so that

12 you have familiarized yourself with the content of that paragraph. And

13 then I'll ask you my question.

14 So just read it. Tell me when you finished reading it.

15 Paragraph 15. It starts -- refers to a young boy. Do you see that?

16 Something between 15 and 18. Just to make sure you're looking at the

17 right paragraph.

18 Have you -- do you see that?

19 A. I haven't found it. I don't know where it is. Is it possible

20 that someone helps me to show where the paragraph is?

21 JUDGE MOLOTO: [Microphone not activated] ... witness, are you

22 able to find paragraph number 15?

23 THE WITNESS: Paragraph 15? Okay.

24 MR. ROGERS:

25 Q. Do you see that?

Page 2453

1 A. [Interpretation] Yes.

2 Q. And are you able to read that paragraph in Albanian? Is it

3 something you can read comfortably?

4 A. Yes, yes.

5 Q. Now, do you see it refers to a young boy, something between

6 15 and 18. I just want to make sure you've got the right paragraph.

7 Do you have that paragraph?

8 A. Yes, I do. I'm reading it.

9 Q. Read it to the end and tell me when you've got to the end,

10 please. The end of the paragraph.

11 A. I read it.

12 Q. Now, Mr. Witness, you'll recall that I asked you earlier whether

13 you remembered whether Mr. Haradinaj was present during the course of

14 that incident.

15 Now you've had a chance to look at that paragraph, can you help,

16 please, with whether you now recall whether Mr. Haradinaj was present

17 during the course of that incident, now you've had a chance to read what

18 you said (redacted)?

19 A. I said earlier what I remember, that there are some things that I

20 don't understand in detail. I know that Togeri was present in that

21 incident; Idriz Balaj.

22 As to Haradinaj, I said I don't recall. I recall that I have

23 seen him several times, but I don't recall seeing him in this incident in

24 question. I don't know why I gave this statement. When, sorry, I gave

25 this ...

Page 2454

1 I said that he was in that place several times. In that staff, I

2 saw him, Haradinaj.

3 Q. Just look, if you would, please, at the last -- the very last

4 sentence of that paragraph?

5 MR. EMMERSON: I think, if I may say so, that is the end of a

6 memory-refreshing document. The witness has given his answer. This is

7 now seeking to impeach the answer the witness has just given.

8 MR. ROGERS: I haven't asked a question yet.

9 JUDGE MOLOTO: Overruled.

10 Carry on, Mr. Rogers.

11 MR. ROGERS:

12 Q. Just have a look at that last sentence, if you would, please, of

13 that paragraph, and see what you have said there (redacted).

14 A. I am saying it. Maybe I said it. I said that he has been there

15 on several occasions, but -- but now I don't remember.

16 JUDGE MOLOTO: Witness, does that sentence, last sentence, not

17 remind you of how you remembered things taking place at the time you

18 wrote this statement?

19 MR. EMMERSON: I'm sorry, I object to the form of the question.

20 The question isn't whether -- how he remembered things at the time of the

21 statement. The question is, having seen the statement, whether he now

22 remembers, having had his memory refreshed.

23 JUDGE MOLOTO: Indeed.

24 Do you now remember, now that your memory has been refreshed,

25 sir?