1 Thursday, 2 June 2005

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 2.19 p.m.

6 JUDGE PARKER: Good afternoon, Mr. Zyrapi. The affirmation you

7 made at the beginning of your evidence still applies.

8 Mr. Whiting.

9 MR. WHITING: Thank you, Your Honour.

10 WITNESS: BISLIM ZYRAPI [Resumed]

11 [Witness answered through interpreter]

12 Cross-examined by Mr. Whiting:

13 Q. Good afternoon, Mr. Zyrapi. My name is Alex Whiting; I'm one of

14 the Prosecutors in this case. Can you understand me?

15 A. Yes.

16 Q. Sir, I don't have too many questions for you, but I'd like to

17 start with a little bit more detail about your background. You testified

18 yesterday that from 1977 to 1981 you attended the military secondary

19 school in Sarajevo, and then from 1987 to 1989 you attended the military

20 academy. Is that correct?

21 A. Yes.

22 Q. So I take it that from 1981 when you graduated from the secondary

23 school until 1987, you were in the former Yugoslav army. Correct?

24 A. Yes.

25 Q. And at that time it was known as the JNA?

1 A. Yes.

2 Q. After 1989, you remained in the JNA. Correct?

3 A. Yes.

4 Q. And I take it that it was in 1992 that you left the JNA and joined

5 the Bosnian army. Is that correct?

6 A. Yes.

7 Q. Now, when you were in the JNA, can you tell us where you served?

8 A. Yes. From 1981 after completing secondary school until 1987, I

9 served in the Lukavica zone near Sarajevo. Having completed military

10 academy from 1989 to 1992, I worked in the same garrison.

11 Q. And can you tell us what month it was in 1992 that you switched

12 over to the Bosnian army?

13 A. In April.

14 Q. Now, during the time that you served in the JNA, did you have any

15 difficulties with the Serb authorities?

16 A. Yes. In 1985/1986.

17 Q. What happened?

18 A. At that time it wasn't only the case with me but with a group of

19 Albanian officers who were condemned for what was called at that time of

20 irredentist activity. They were accusing us of organising the Kosova

21 army.

22 Q. Do you recall how many were accused in the group?

23 A. There were quite many. I don't know precisely the number, but

24 around 30 were included in this process.

25 Q. What happened as a result of those accusations?

1 A. As a result of these accusations, I was convicted. I was

2 sentenced to one year and a half on probation and others were sentenced to

3 three to four years, depending on the person.

4 Q. And after that you were allowed to continue -- you stayed in the

5 JNA?

6 A. Yes.

7 Q. Did you have -- were there any other instances like that of

8 difficulties with the Serb authorities that you experienced?

9 A. These were the problems in that time.

10 Q. Now, when you joined the Bosnian army in 1992, could you tell us

11 where you were first assigned or stationed?

12 A. When I joined the Bosnian army, in the beginning I was assigned to

13 part of the front line which was for the defence of Sarajevo.

14 THE INTERPRETER: If the witness could speak up and closer to the

15 microphone, please.

16 MR. WHITING:

17 Q. Mr. Zyrapi, the interpreters are having a little difficulty

18 hearing you because you speak -- you're speaking very quietly. If you --

19 the usher will assist to move the microphones, or move you, but if you

20 could -- if you could remember to speak up as much as you can, that would

21 be appreciated.

22 Well, we'll see how it goes. The interpreters will let us know if

23 there's a problem.

24 Were you assigned or given any position when you first joined the

25 Bosnian army?

1 A. I don't receive any translation.

2 MR. WHITING: If the usher could assist. The witness is not

3 receiving a translation.

4 Q. Mr. Zyrapi, can you hear and understand me now?

5 A. Yes.

6 Q. Okay. The question that I put to you before we had the difficulty

7 was: When you -- when you joined the Bosnian army, were you assigned to

8 any position?

9 A. Yes. As I said in the beginning, in April I was commander of

10 defence in Vojmilo [phoen], and in May commander of the 14th Brigade for

11 the defence of Sarajevo. And until October 1992, with the order of the

12 supreme staff of the Bosnian army, I was transferred to Central Bosnia.

13 At that time, the 3rd Army Corps was in the process of formation, and

14 within this army corps I was assigned the post of brigade commander, of

15 the Brigade 308.

16 Q. Now, when you were assigned to be the commander of the

17 14th Brigade in May of 1992, who assigned you to that position?

18 A. The appointment at that time was carried out by the leadership,

19 the staff of the Bosnian army which was at that time territorial staff and

20 later was transformed into the staff of the Bosnian army.

21 Q. And approximately how many men were within the 14th Brigade?

22 A. The 14th Brigade at that time comprised of approximately 2.000

23 people. It's been quite some time since then and, to tell you the truth,

24 I don't remember the exact figure.

25 Q. Well, an approximation is fine. And then in October of 1992 you

1 were appointed by the supreme staff of the Bosnian army to be the

2 commander of the 308th Brigade of the 3rd Corps. That's correct?

3 A. Yes.

4 Q. And could you tell the Court how many people or men were within

5 the 308th Brigade of the 3rd Corps in October of 1992?

6 A. In fact, my appointment as commander of 308 Brigade was in October

7 1992, while in October and November I served in Zenica in Central Bosnia

8 and helped with the formation of the army corps.

9 Q. So when was the 308th Brigade actually formed? At that time, in

10 October/November 1992?

11 A. In December, not October, December 1992. And at that time, I was

12 assigned commander of this brigade.

13 Q. At the time you were assigned the commander of the brigade in

14 December, when -- how many men were there within the brigade?

15 A. At that time it included between 1.500 and 2.000 people. I don't

16 know the exact figure, but this is the approximate one.

17 Q. And where specifically in Central Bosnia were you based?

18 A. Could you repeat the question, please. I didn't understand it.

19 Q. Yes. Where specifically in Central Bosnia were you based once you

20 became the commander of the 308th Brigade?

21 A. The 308 Brigade was based --

22 THE INTERPRETER: The interpreter could not hear the name of the

23 town.

24 MR. WHITING:

25 Q. Witness, the interpreter couldn't hear what you said for the name

1 of the town where it was based. If you could just try to remember to

2 speak up a little.

3 A. The Brigade was stationed in the city of Novi Travnik.

4 Q. Now, how -- until what date did you remain the commander of that

5 brigade, the 308th Brigade?

6 A. Until the end of 1994.

7 Q. And what happened then? Were you promoted to another command?

8 A. At that time I left Bosnia. Before I left I was promoted to the

9 post of division commander but I didn't fulfil this position, since after

10 I left Bosnia in 1994/beginning of 1995, I did not return to Bosnia.

11 Q. And that's when you left and came to the Netherlands. Is that

12 correct?

13 A. Yes.

14 Q. Now, in -- in about June of 1993 was there some serious fighting

15 that occurred in Novi Travnik?

16 A. At that time, June, April, May, fighting was going on not only in

17 Novi Travnik but in the entire territory of Central Bosnia.

18 Q. And this was fighting of course between the Bosnian army and the

19 HVO. Correct?

20 A. Yes. At that time the conflict existed between the Bosnian army

21 and the HVO, the Croatian army.

22 Q. Now, in July of 1993, did there come a time when there was an

23 exchange of prisoners between the two armies, the Bosnian army and the

24 HVO, the Croatian army?

25 A. I don't precisely remember the time, but there was a time when

1 exchange of prisoners between the Bosnian army and HVO took place.

2 Q. And just to be clear, the Bosnian army had taken some prisoners

3 during the fighting, the HVO prisoners -- the HVO army had taken some

4 prisoners during the fighting, and at that time then there was an exchange

5 of the prisoners. Is that what happened?

6 A. Yes.

7 Q. And some of the prisoners who were taken on both sides were

8 civilians. Correct?

9 A. Yes.

10 Q. Were those -- were the prisoners that were taken by the Bosnian

11 army taken by soldiers under your command in the 308th Brigade?

12 A. It has been a long time for me to remember the details. The

13 exchange of both civilians and soldiers took place during fighting. They

14 were not imprisoned but they were in their houses, in their villages, up

15 to the moment when the exchange took place because the civilian Bosniak

16 population who was situated in a building on the front line, which was at

17 that time under the control of HVO forces, had the same ...

18 Q. I think the end of your answer got lost. But let me move on to

19 another question. I'm a little unclear because you testified that there

20 was an exchange of prisoners between the two armies and that both sides

21 had taken civilians as prisoners. And then my question was: Were some of

22 these prisoners taken by soldiers under your command in the 308th Brigade?

23 A. Yes.

24 Q. And was that a practice that was regularly followed by the

25 308th Brigade by the Bosnian -- the 308th Brigade of the Bosnian army,

1 that civilians were taken prisoner in order to exchange for other

2 prisoners?

3 A. No, this didn't happen. This was the only case that I remember in

4 details, in approximate details.

5 Q. Do you have any recollection how it came about that civilians were

6 taken prisoner by the 308th Brigade?

7 A. As I mentioned earlier, the villages were of mixed ethnicity,

8 Bosnian and Croatian. During the conflict at that time, I don't know the

9 name of the village, people who were armed were disarmed by members of the

10 HVO, and they remained in their houses. So civilians or those who didn't

11 join the war were in their homes. The Muslim or Bosnian part, civilians,

12 they were also isolated. They were in a building and they were not

13 allowed to move; however, it didn't resemble a prison. I wouldn't say

14 that they were imprisoned, except for the fact that soldiers who were

15 operating at that time because prison did not exist in that territory.

16 The military prison was in Travnik at that time and was under the

17 operational commander of the 3rd Army Corps.

18 Q. Mr. Zyrapi, I'm going to show you a document and ask you some

19 questions about it that might make this a little bit more specific.

20 MR. WHITING: And with the assistance of the usher if this could

21 be provided -- it's been already provided to Defence counsel, if it could

22 also be provided to the Court. I actually have this document in three

23 languages.

24 If it could be given to the witness so that he could have a chance

25 to look at it.

1 Q. The copy that's been put in front of you, on the front it's

2 English. The -- behind it is a -- it's in B/C/S, in

3 Bosnian/Serbian/Croatian. And I also have a copy in Albanian if you

4 prefer to read that.

5 If you can just take a moment to look at that document, please.

6 Mr. Zyrapi, does that document describe the prisoner exchange that

7 we've just been talking about?

8 A. Yes.

9 Q. Now, I notice that among the group of individuals that is being

10 handed over by the Bosnian army is some very elderly individuals. Their

11 dates of birth are there. There are some individuals who are 70, 71 years

12 old at the time. I take it that those individuals were civilians. Is

13 that correct?

14 A. According to their age, yes, it was the same case with them and

15 with the Bosnian army. There were people of old age.

16 Q. And looking at the -- at the second page of the document, it

17 states that the HVO was given an order from you stating that some of the

18 individuals were being transferred to the Travnik prison barracks on the

19 19th of July and that they would be exchanged from that prison. And did

20 that in fact happen?

21 A. It's been a long time for me to remember the details, but probably

22 yes. Of course a prison was in Travnik, as I mentioned earlier, the

23 military prison where the command of the army corps, according to their

24 orders, actually, they were transferred to where they requested. As I

25 said, I can't remember the details because it has been a long time now.

1 Q. Do you recall if that second group of groups that was transferred

2 to the prison included civilians?

3 A. I remember that people were sent to prison, but whether there were

4 civilians or soldiers, I don't know. Mostly people who were sent to

5 prison were those who participated or were members of the HVO, of the

6 Croatian army.

7 Q. And your testimony is that this -- on the front -- first page,

8 this group of 38 individuals, including some of the elderly individuals,

9 that they were not detained in a prison but that they were detained in

10 their homes. Is that your testimony?

11 A. Yes. Until the exchange took place, they remained in their homes

12 in their respective villages.

13 Q. Were they detained in their homes? Were they allowed to leave?

14 Or did they have to stay in their homes?

15 A. It's been a long time, as I said, for me to remember the details,

16 but they were allowed -- they had the freedom of movement within their own

17 village.

18 Q. Mr. Zyrapi, do you -- you testified that this is the only occasion

19 that this happened. Do you -- with your experience, do you believe that

20 taking -- detaining civilians during wartime is a proper military

21 practice?

22 A. No, it's not.

23 Q. And when you moved over to the KLA in 1998, is that a practice

24 that you suggested or advocated?

25 A. I neither suggested nor advocated such a practice.

1 Q. To your recollection, this incident that occurred in July of 1993,

2 did you think that it was -- it followed proper practices or not?

3 A. According to the existing conditions at that time, we did our best

4 to follow the written rules. The Bosnian army had the rules, military

5 rules, well written at that time.

6 Q. And you've said that you did your best to follow the rules.

7 Looking back on this occasion, do you think on this occasion that you

8 succeeded?

9 A. As much as I could follow these rules, yes.

10 Q. Well, that's still conditional. I understand you're saying as

11 much as you could follow the rules, but did you succeed? Were the rules

12 followed?

13 A. As I said earlier, as much as I could follow. And the success

14 whether this was achieved depended on that and on the circumstances at

15 that time.

16 MR. WHITING: Your Honour, could this document be marked as an

17 exhibit, please.

18 JUDGE PARKER: Yes, it will be received.

19 THE REGISTRAR: That will be Prosecution Exhibit P250.

20 MR. WHITING:

21 Q. Now, you testified that in March of 1998 you went from Holland to

22 Tirana.

23 A. Yes.

24 Q. And then from -- on the 29th of May, 1998, you went from Albania

25 to Kosovo. Is that correct?

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1 A. Yes, that's correct.

2 Q. What were you doing in Albania from March until May of 1998?

3 A. During that time, together with some colleagues with whom we were

4 waiting in Tirana, I assisted in -- with logistical issues of the KLA in

5 Tirana. As an expert, I was regarding arms supplies and other equipment,

6 supplies that were needed by the KLA at that time. I assisted those

7 people who were trying to train themselves but who were not professionals,

8 who didn't have the necessary expertise in that respect when they were

9 purchasing or collecting weapons.

10 Q. Mr. Zyrapi, I'm going to ask you to try as much as you can to

11 speak up because I'm guessing that it's still difficult for the

12 interpreters to hear you.

13 MR. WHITING: And I notice that only one of the microphones is on;

14 I don't know if that makes a difference.

15 [Trial Chamber and registrar confer]

16 MR. WHITING:

17 Q. Did you remain in Tirana or were you in other places in Albania

18 during that time?

19 A. Sometimes I stayed in Tirana; sometimes I went to the border of

20 Albania with Kosovo.

21 Q. And then on the 29th of May you enter Kosovo. Now -- and you

22 remained in Kosovo essentially thereafter. Correct?

23 A. Yes. As of the 29th of May, I remained in Kosova all the time

24 with the exception of mid-September when we left Kosova again to return

25 on -- in November 1998 and to remain there until April 1999. In 1999, I

1 again left Kosova and returned in June of 1999.

2 Q. And since June of 1999 you've continued to live in Kosovo. Is

3 that correct?

4 A. Yes. Yes.

5 Q. Now, when you went to return to Kosovo in 1998 at the end of May,

6 would you agree with me that men who had served in the former Yugoslav

7 army had difficulties at times being accepted into the KLA?

8 A. The time when one joined the KLA, in this case the superiors,

9 doesn't mean that they had difficulties; in fact, they needed

10 professionals in the KLA. I'm talking about my own experience and the

11 experience of my colleagues who came to Kosova at the same time. But even

12 those who were in Kosova and who joined the KLA, I don't think they had

13 any problems being admitted. I think that depended on our own will to

14 contribute and to do their -- carry out their obligation to their own

15 people.

16 Q. You never heard about former Yugoslav -- Yugoslav officers being

17 treated with some suspicion when they wanted to join the KLA? You never

18 heard stories like that or anything like that?

19 A. I don't recall having heard something to that effect regarding

20 suspicions towards army officers, former Yugoslav army officers joining

21 the KLA.

22 Q. From the time you arrived or let's say from June, the beginning of

23 June, until mid-July, you were the officer for the development and

24 personalisation of the KLA. Correct?

25 A. At that time, I was an officer responsible for the development and

1 professionalisation, if I might say so, raising of the professional level

2 of the KLA.

3 Q. You testified that you initially went to Rahovec for about five --

4 the area of Rahovec for about five days when you first arrived. Correct?

5 A. Yes.

6 Q. You were also during that time period, June and July of 1998,

7 went -- you went to Klecka and you also went to Lapusnik. Correct?

8 A. Yes.

9 Q. You also went to Negrovce?

10 A. Yes, and to many other places.

11 Q. Well, Kishna Reka, Suva Reka, Likovc? Did you go to those places?

12 A. Yes, yes, to these places, too.

13 Q. To places within the Drenica zone, other places?

14 A. Yes.

15 Q. Could you tell us which other places within the Drenica zone.

16 Which other villages did you go to?

17 A. In general, the Drenica zone comprised several villages under the

18 control of the KLA at that time. And in Gllogovc municipality, Skenderaj

19 municipality, some villages belonged to Kline municipality. Some villages

20 were part of Drenica zone, but I don't remember the names of each and

21 every one of them.

22 Q. I don't need the name of each and every one of them. Can you just

23 tell me some of the villages that you went to during that time that I

24 haven't named during June and July 1998, some of the other villages that

25 you visited.

1 A. In Drenica zone, you mean?

2 Q. Yes.

3 A. I went and visited Rezar -- Rezalle, the villages in the direction

4 of Izbice Mountains, Jashanice, Lemire [phoen], Gllareve, then Negrovce

5 you mentioned earlier. These are more or less the villages I visited

6 which fell under Drenica zone.

7 Q. Now, you also went to the Dukagjin zone, correct, during this time

8 period?

9 A. Yes. I went in mid-July to Dukagjin together with the staff,

10 General Staff.

11 Q. Do you remember approximately when in mid-July?

12 A. It was about two days before the attacks started on Rahovec.

13 Q. And how long did you stay in Dukagjin?

14 A. I stayed two or three days, two full days I think in Dukagjin.

15 Q. And was that the first visit that you made to Dukagjin after you

16 arrived to Kosovo?

17 A. Yes.

18 Q. Now, is it fair to say that in June and July, Malisevo was

19 sometimes referred to as the centre or the capital of the free zone in

20 Kosovo?

21 A. Yes, you might say that.

22 Q. And that free zone extended to Klecka and other villages in the

23 Berisa Mountains like Berisa, Novoselle, Terpeze. Correct? I saw you

24 nodding your head, but you have to answer or else it doesn't get on the

25 record.

1 A. Yes.

2 Q. And the free zone also extended to villages like Shale, Sedlare,

3 Kroimire, Javor, Luznica?

4 A. Yes, I remember that.

5 Q. And it extended up to Lapusnik, which you described in your

6 testimony yesterday as being one of the front lines. Correct?

7 A. Correct.

8 Q. And then of course, as you've suggested today, the area on the

9 other side of the Pristina-Peja highway was also largely controlled by the

10 KLA. Correct?

11 A. Correct.

12 Q. Now, going back to the first visit that you made to the area of

13 Rahovec, you testified that you spent five days in this territory and

14 helped the organisation of this territory from a military point of view.

15 Do you remember that testimony?

16 A. Yes, I remember that.

17 Q. So you're trying to assist in organising that area. Correct?

18 A. Yes.

19 Q. Creating structures in an army is an ongoing process. You'd agree

20 with me; correct?

21 A. Yes.

22 Q. It's impossible to create a brigade overnight. Right?

23 A. Yes.

24 Q. Now, you testified that you saw Fatmir Limaj in June in Klecka.

25 Do you remember that testimony?

1 A. Yes, I do.

2 Q. You testified that you were sent there to assist him and also to

3 prepare a house for the central staff. Correct?

4 A. Yes. Correct.

5 Q. Now, how long did you stay in Klecka on that occasion?

6 A. I stayed very briefly. I can't give you an accurate description.

7 Maybe one or two hours. In many places, I stayed very brief periods so I

8 think it was one or two hours.

9 Q. And Klecka, of course, was not one of the front lines, was it?

10 A. No, it was not a front line.

11 Q. In fact, during June and July of 1998, there wasn't any fighting

12 in Klecka, was there?

13 A. No. At that time, there were no fightings.

14 Q. It was a very protected place, geographically?

15 A. Yes.

16 Q. Do you know how many soldiers were actually in the unit in Klecka?

17 A. I don't recall the number. I know that there was a group of

18 soldiers but whether -- as to the number when I visited them, they may

19 have been 10 or 20, but I cannot give you an accurate number. I didn't

20 count them then.

21 Q. You went to Klecka, didn't you, Mr. Zyrapi, to assist Mr. Limaj in

22 organising not those 10 or 20 men in Klecka but a larger area around

23 Klecka. Correct?

24 A. When I went there, as I said earlier, I went to assist them. I

25 was sent by the operational department to help them find a house, make

1 it -- make sure it was a safe place, a house where -- which would be used

2 by the members of the General Staff, and to see how -- what we could do in

3 terms of security for that base. This is why I was there.

4 Q. Was this your only task?

5 A. When I went there, that was the only task I was charged with.

6 Q. You're aware, aren't you, that it was already recognised at that

7 time that the villages around Klecka that were within that free zone

8 needed to be coordinated and work together. Correct? That was already

9 recognised at that time.

10 A. It was -- that was something which should be done not only for

11 the -- those villages but for all the villages of the Berisa Mountains.

12 All these villages needed to be coordinated. But at the time I was there,

13 I was there for that particular task. I was sent there by the department

14 of the General Staff.

15 Q. I understand.

16 Now, you testified that -- you also testified that you went to

17 Lapusnik two, maybe three times. Do you remember that testimony?

18 A. Yes.

19 Q. And you testified that your visit -- the particular visit that you

20 talked about was very short, as it was with the other units. Correct?

21 A. Correct.

22 Q. And you testified that you went to Lapusnik to assist with

23 structuring. Correct?

24 A. In my testimony I said that when I went there for brief periods I

25 went there to see how the front line was structured because that was a

1 place where the arms were positioned, to make sure that that was the best

2 defence position?

3 Q. Lapusnik was an important position strategically for the KLA,

4 correct, because it was one of the front lines?

5 A. Yes. When we talk about Lapusnik, that includes a broader area.

6 But now I think we are talking about the Lapusnik gorge; that was a place

7 which was of specific importance, tactical importance, for us because that

8 was a place you could block the Prishtine-Peja road and keep the territory

9 free behind that line.

10 Q. When you went to Lapusnik, you went with Agim Qelaj. Correct?

11 A. Yes.

12 Q. And you also went with somebody who was known as Hans. Correct?

13 A. Yes.

14 Q. And you also went with Fatmir Limaj. Correct?

15 A. Those two or three times I've been there, the first time I went

16 alone with Agim Qelaj. Maybe during the second or the third time Fatmir

17 was with us; I'm not sure whether it was the second or the third time.

18 And we stayed there for a very brief -- for a very brief period. The

19 reason was to place a heavy mortar, 12.7 millimetre. After we put it in a

20 position which we thought was best, we left. This is what I remember from

21 that visit.

22 Q. Now, when Mr. Mansfield asked you about times that you had seen

23 Mr. Limaj during this period, you didn't mention this time, being with him

24 in Lapusnik. Did you forget that when you were being asked questions

25 yesterday?

1 A. Yes. I remember saying yesterday that there were some other

2 briefer meetings, but for the moment I didn't recall them.

3 Q. You forgot yesterday that you had been in Lapusnik with Fatmir

4 Limaj during this period?

5 A. Well, I'm mentioning all these things. I just -- it skipped my

6 memory because it was, as I said, a very brief meeting. While I was

7 thinking over what I said, I recalled that I was there -- we were together

8 for a brief moment.

9 Q. And this occasion, it was you, Fatmir Limaj, and who else that

10 went, if you recall?

11 A. Agim, Agim Qelaj and Hans. Hans is the pseudonym of the person

12 called Nusret Krasniqi. He was an experienced army officer because he had

13 served in the former Yugoslav army and he served as an escort for us

14 during our visits to many places.

15 Q. The heavy mortar that you placed, did you bring that from

16 someplace?

17 A. No. It was already there. I went there with Agim, and Fatmir was

18 there, to see where it was placed. I remember it was there at the point,

19 as we call them, there.

20 Q. Did you go to Lapusnik with Fatmir Limaj or was he already there

21 when you arrived?

22 A. To my recollection, we met on the way between Orlate and Lapusnik

23 villages. I think when we met he was with Rexhep Selimi, I think. And he

24 instructed us to go and see this weapon and help the soldiers place it in

25 the best possible position in the Lapusnik gorge.

1 Q. Who instructed you? Fatmir Limaj?

2 A. No. When we met it was Rexhep with him, and he said that we

3 should go together with Fatmir to see where the mortar was, 12.7, was

4 placed so that we could come up with the best possible location for that

5 mortar. I didn't know the place where the mortar was placed, and that's

6 why we went together.

7 Q. Now, you testified earlier that on your trips -- or your visits to

8 Lapusnik you went there to see how the front line was structured. On this

9 occasion, did you also do that?

10 A. I have, as I said, been there several times for brief periods.

11 During every visit to Lapusnik when they asked -- when the units asked me

12 to help them, I stopped, helped them, and went further. Speaking about

13 Lapusnik, I have in mind always the Lapusnik gorge because that was the

14 place of importance to us where we stayed and gave instructions to them

15 how to defend it better, where to place the means, the arms, and the

16 persons, the soldiers.

17 Q. I understand. And when you refer to the Lapusnik gorge, you're

18 talking about the part of Lapusnik that is below or south of the

19 Peja-Pristina highway. Correct?

20 A. When I speak about the gorge, I mean the place alongside the

21 Peja-Prishtine highway or road. That is the place that I'm talking about

22 which was very crucial from the strategic point of view.

23 Q. But which side of the road?

24 A. When I visited the line, the mortar was stationed on the right

25 side of the road, Peja-Prishtine.

1 Q. The right side of the road if you're going from Peja to Pristina?

2 A. Yes.

3 Q. And Fatmir Limaj was also interested in how the front line was

4 structured in Lapusnik, wasn't he?

5 A. After the request sent to me to see where the heavy mortar was

6 stationed, I don't recall any other reasons he was interested in.

7 Q. So you don't recall him being interested also in how the front

8 line was structured in Lapusnik? You don't recall that?

9 A. No. I told you, I was there for a brief period. He was most

10 interested to see what would be the best position to station this mortar.

11 That was the most important thing.

12 Q. Thank you.

13 MR. WHITING: I have no further questions.

14 JUDGE PARKER: Thank you.

15 Mr. Mansfield.

16 JUDGE THELIN: Could we just clarify the site of this mortar. In

17 the transcript it says 12.7 millimetres. I take it it's something else.

18 Maybe, Mr. Whiting, you could ask that question.

19 MR. WHITING: Yes, Your Honour, I certainly can.

20 Q. Mr. Zyrapi, could you -- there may have been a translation error

21 because I have no doubt that you are familiar with these sorts of things.

22 Could you describe for us the size of that mortar that was being

23 positioned in Lapusnik on that occasion that we've been talking about.

24 A. When we spoke about the heavy mortar, it is of a 12.7 calibre.

25 THE INTERPRETER: Maybe it's machine-gun, the right word.

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1 MR. WHITING:

2 Q. Is the -- was the weapon a machine-gun or a mortar? And this may

3 be taxing the interpreters.

4 JUDGE PARKER: Was it firing bullets or shells?

5 MR. WHITING: Thank you, Your Honour.

6 Q. Did it fire bullets or shells?

7 A. When we say "heavy machine-gun" it means you can fire bullets of

8 great calibre, which is 12.7-millimetre calibre.

9 Q. Thank you.

10 JUDGE PARKER: Bullets in a belt?

11 MR. WHITING:

12 Q. Are you speaking about bullets that were fired in a belt?

13 A. Not bullets in a belt because heavy machine-gun a linked in -- it

14 has -- it is fed by a chain of bullets.

15 JUDGE PARKER: Yes. I think we can be confident we have a

16 machine-gun and not a mortar.

17 Mr. Mansfield, after that exploration of weaponry.

18 MR. MANSFIELD: Yes. Perhaps I could fire one last shell -- oh,

19 never mind, never mind. It's all right. This is my final performance.

20 Re-examined by Mr. Mansfield:

21 Q. I have one question only for you -- one topic, rather.

22 You've just been asked by the Prosecution concerning your interest

23 in how the front line was structured in Lapusnik and that vicinity. Do

24 you remember those questions you've just been asked?

25 A. Yes. Yes, I do.

1 Q. Now, bearing that interest in mind by you, did you ever discover

2 or be told or become aware of the possibility of a prison camp on the

3 front line?

4 MR. WHITING: Your Honour, this strikes me as beyond the scope.

5 This was not raised in either examinations.

6 JUDGE PARKER: I think that's right, Mr. Mansfield, isn't it?

7 MR. MANSFIELD: It is right. And I was very interested that it

8 wasn't raised by my learned friend since it's his case. May I say how

9 this arises. If the question -- I'm afraid it's a question I tried to

10 pose to somebody much earlier in these proceedings, when you yourself said

11 it's better posed to somebody with military experience. Now, if the

12 position -- if the position that the crown -- the Prosecution are adopting

13 to this witness and in a sense are saying was Fatmir Limaj's interest,

14 then the question is: Would a prison on the front line from a military

15 point of view be a sensible situation? That's the simple question. And

16 we say it does arise out of the Prosecution's position with regard to this

17 witness. They are treating him as -- as far as I can see, a man with

18 military experience who knows what he's doing. I think that's their

19 approach to this witness. And on that basis, therefore, I would submit

20 that I'm entitled to ask him whether with that approach he could

21 contemplate the existence of a prison camp on the front line.

22 JUDGE PARKER: Had you been asking in chief and there was a

23 challenge to relevance, I would have had no doubt that you should asked

24 the question. The problem is attempting for the first time to ask it in

25 re-examination.

1 MR. MANSFIELD: Well --

2 JUDGE PARKER: I've heard your argument. I don't think it quite

3 carried you.

4 MR. MANSFIELD: Well, I would ask to persist on this because it's

5 not my case that there was a prison camp on the front line. Obviously, at

6 least within the knowledge of Fatmir Limaj, as expressed in his own

7 evidence. And therefore, this is not a witness through whom I can

8 establish its non-existence, plainly.

9 JUDGE PARKER: You're not asking about this witness's recollection

10 or whether there was one or not, but you're asking him of his -- or from

11 his military experience whether it would be a sensible place to have one.

12 MR. MANSFIELD: That's right.

13 JUDGE PARKER: As I understand it.

14 MR. MANSFIELD: That's right.

15 JUDGE PARKER: And why couldn't you have done that in chief?

16 MR. MANSFIELD: Because at that stage this was not an issue that

17 had been placed before you as such. Because I had called him on different

18 issues. If the Prosecution's position is that he's gone to the front line

19 to examine the structuring and by implication wasn't Fatmir Limaj also

20 interested in the same point, then plainly one would need to know whether

21 as a matter of military strategy it would be sensible to have one on the

22 front line, because the same point applies, no doubt, could be applied to

23 Fatmir Limaj. So that is the way it arises. He's plainly got the

24 experience. He has been asked about structuring on the front line. He's

25 been asked about visits to Lapusnik. And in my submission, it matters not

1 whether I've asked it in examination-in-chief or not. It's both -- it's

2 plainly relevant, it's plainly probative, the question of his opinion.

3 And I waited to see how this matter was going to be approached.

4 Interestingly, of course, that was never put to him by the Prosecution,

5 whose case it is. This is the very witness, I would have thought, they

6 would have wanted to have the matter put to.

7 JUDGE PARKER: Mr. Whiting, you hear the response to your

8 objection. Is there going to be any reply?

9 MR. WHITING: Well, it -- the -- I may have gone into more

10 background about the witness's -- more detail about the witness's

11 background, but certainly his background and military experience was

12 elicited in chief. So it's not a new issue about his experience nor what

13 he was doing during the months of June and July. And I'm not sure if

14 Mr. Mansfield is suggesting that the Prosecution has an obligation under

15 the Rules to put the issue to this witness. If that's the position, then

16 that's something that we could discuss. I'm assuming that that's not what

17 he's stating. He simply made that argument in furtherance of his argument

18 that he should be permitted to address this issue on re-direct.

19 I don't really see how -- It seems to me quite circuitous the way

20 Mr. Mansfield gets to this question. It has not been raised and it's a

21 leap, so I don't -- I just don't see it.

22 JUDGE PARKER: Thank you, Mr. Whiting.

23 [Trial Chamber confers]

24 JUDGE PARKER: Mr. Mansfield, we're not minded to allow the

25 question.

1 MR. MANSFIELD: Well, Your Honour, I have two other proposals.

2 JUDGE PARKER: Only two?

3 MR. MANSFIELD: Well, there might be some subproposals.

4 The first is, as you offered me an opportunity on another

5 occasion, I didn't actually take it because it wasn't necessary, but one

6 procedure I might ask or request is that I re-open this matter and then

7 Mr. Whiting has the opportunity to cross-examine if he wishes. Because in

8 my submission this is a question that is highly relevant to this

9 Tribunal's consideration in the longer term.

10 JUDGE PARKER: I think that proposition requires you to justify

11 why you didn't do it in chief.

12 MR. MANSFIELD: Well, I can go into that in one moment.

13 The second proposal is that you yourselves ask the question if you

14 think it's relevant.

15 JUDGE PARKER: We've considered that and decided against it, let

16 me tell you, Mr. Mansfield.

17 MR. MANSFIELD: Well, that --

18 JUDGE PARKER: We've been maintaining a course out of respect for

19 the competence of counsel we have, if I might say so, of trying to be a

20 non-interfering Bench in the conduct of this trial and we don't want to

21 break that course and pattern without some real justification.

22 MR. MANSFIELD: Well, of course we appreciate that up to this

23 point, and I'm not suggesting it would be interference, and I don't think

24 anybody would suggest that this question is interference because it is in

25 fact, as I submit, it's relevant. And I submit that it is a question you

1 might want to have the answer to from somebody who has front line

2 experience, of which this gentleman is one. But obviously I can't

3 persuade you further if you've already decided that that is not a course

4 that you can adopt, but it does seem to us that it will form part -- and I

5 say it now, it will form part of our final submissions, as it did our

6 opening submissions. And plainly to have this gentleman's opinion might

7 be pertinent to that, depending on, obviously, the weight you give to his

8 position and experience.

9 JUDGE PARKER: That brings us back, does it not, to your reason

10 for not having asked it in chief when it is part of your case.

11 MR. MANSFIELD: May I just have one moment? Sorry.

12 [Defence counsel confer]

13 MR. MANSFIELD: Certainly -- can I just pause. We're having it

14 looked at. I had a recollection under the Rules that in fact -- this goes

15 back to something Mr. Whiting said. I will return to the other point in a

16 moment. That in fact there is an obligation on the Prosecution to put, we

17 would submit, their fundamental proposition, not everything, obviously

18 that would take too long. But here we have somebody who is visiting the

19 front line on more than one occasion. Here we have somebody from the

20 General Staff. One might have expected at some point that he would have

21 been asked, Did you hear, did you see, and -- because that sort of

22 question has been asked many times of other witnesses.

23 Now, plainly it is not upon us to ask that question because that's

24 not our case. It is the Prosecution's case to do that; well, they haven't

25 done it.

1 JUDGE PARKER: I think there's a reverse of logic there to my

2 simple mind, Mr. Mansfield.

3 MR. MANSFIELD: Well, it's -- of course one's --

4 JUDGE PARKER: It's your case there was no prison there; that's

5 clear. It's clear to everybody and it has been virtually from the outset

6 of the trial.

7 MR. MANSFIELD: It's rather different. Our position -- and I

8 think you yourself perceived when Mr. Whiting misinterpreted what

9 Mr. Limaj said. He was very careful in his evidence about what he said on

10 this topic and why he believed there was no camp and could not believe

11 there was a camp because of the background material I don't go into. It

12 was a belief; that's not to say at the end of the day you may find there

13 was a camp. Plainly, he's not in a position to deal with that. All he

14 can say is, I didn't visit the camp. I wasn't there. I wasn't in a

15 command position in relation to any camp. And I don't believe there was

16 one. Now, that's rather different to saying there was no camp.

17 So therefore, it's a question of belief. That has been his case,

18 and you very rightly picked Mr. Whiting up when his position had been

19 misstated in his evidence. Now, I'm not in a position, therefore, on that

20 basis to ask this witness about Fatmir Limaj's belief about the existence

21 of a camp, which is why I didn't ask that question. That's the

22 Prosecution's case. And it seems to me on this occasion, if they're going

23 to pursue this witness in the way that they have to take him up to the

24 edge or the brink of Lapusnik and not ask him the key question is

25 extraordinary, whether there be a duty or not. But in any event it seems

1 to us -- certainly to us, that if -- and obviously you've made a judgement

2 about its relevance, but it has nothing to do with, I would submit,

3 interfering with how the case has been run for any of the parties

4 concerned.

5 If this is an issue which will be considered by you in the long

6 run in relation to whether there was a camp and to have evidence about the

7 viability of it, which might go to military thinking, then, we would

8 submit, this is one of the witnesses who could be asked about it. I can't

9 take it further than that, but that's been our position.

10 JUDGE PARKER: Thank you.

11 On the submission that there might be a re-opening, Mr. Whiting,

12 anything further?

13 MR. WHITING: Your Honour, I think, number one, it had been

14 forecast in the 65 ter of this witness that he would address this issue.

15 Counsel, for some reason, chose not to address this issue in direct -- in

16 examination-in-chief. And therefore -- I don't -- I haven't heard a

17 reason why there should be a re-opening at this stage.

18 The second thing is, I understand the case of the Defence not to

19 be -- to be: There was no camp in Lapusnik, and that could have been put

20 to this witness, as had been forecast it would be in the 65 ter. That's

21 what it stated he would testify about.

22 The third thing is that Rule 90(H), which I think Mr. Mansfield is

23 referring to about putting your case to a witness states that: "In the

24 cross-examination of a witness who is able to give evidence relevant to

25 the case for the cross-examining party."

1 Now, given the circumstances of the visits of this witness to

2 Lapusnik, very brief, it didn't seem to me required under the Rule to put

3 the existence of the prison to the witness since it's possible that it's

4 not something he was made aware of during those brief visits. And with

5 respect to the issue about whether it was militarily wise, that seems to

6 turn things completely on their -- on its head because as I understand the

7 Defence, the defence is that the KLA was not militarily very savvy. So to

8 suggest that it couldn't -- the prison could not have been there because

9 it would have been militarily unwise runs completely head on into one of

10 the central pillars of the defence, which is that the KLA wasn't

11 militarily sophisticated. So I'm not sure that the witness's opinion

12 about whether it was wise or not militarily is helpful at all to anybody.

13 JUDGE PARKER: Thank you.

14 [Trial Chamber confers]

15 JUDGE PARKER: We're not minded to grant leave to re-open on this

16 point either, Mr. Mansfield. It seems to the Chamber that the question

17 both of whether there was a prison in the village of Lapusnik, not in

18 Lapusnik gorge, and whether it was an appropriate place for a prison to be

19 located were matters that were well within the scope of what ought to have

20 been the examination-in-chief of this witness if you were then minded to

21 have pursued those issues with him. They not having been pursued, the

22 Prosecution has taken the view that it would not open up that field. I

23 think that's where the matter should lie.

24 Any further questions?

25 MR. MANSFIELD: No, I no other questions. Thank you.

1 JUDGE PARKER: Yes.

2 Mr. Zyrapi, thank you very much. That concludes the questions

3 that will be asked of you so that you are now able to leave and to return

4 to your normal activities.

5 Before you leave your position, did I understand that that is the

6 end of the evidence you have available today, Mr. Mansfield?

7 MR. MANSFIELD: I'm afraid it is. The other witness is flying in

8 today, but I'm afraid he won't be available until tomorrow morning.

9 JUDGE PARKER: So that you would ask now to adjourn to resume at

10 9.00 in the morning?

11 MR. MANSFIELD: Yes, please. Yes.

12 MR. WHITING: Your Honour, if the Court wouldn't mind, I have one

13 minor, just very minor, very quick housekeeping matter which we keep

14 forgetting to tend to and it has to do with an exhibit and it's

15 Exhibit P197. Here it is. The copy that was provided to the registrar

16 was missing page 3.

17 JUDGE PARKER: Yes.

18 MR. WHITING: It's a 92 bis statement. We've raised it with the

19 Defence. It's no problem. If that could be added in, we would be

20 grateful.

21 JUDGE PARKER: Yes, that will be done.

22 Well, it seems that we must now adjourn and we'll resume tomorrow

23 at 9.00 in the morning.

24 And when we have risen, the court officer will assist you outside,

25 Mr. Zyrapi.

1 --- Whereupon the hearing adjourned at 3.42 p.m.,

2 to be reconvened on Friday, the 3rd day of

3 June, 2005, at 9.00 a.m.

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