UNITED NATIONS International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 Case No IT-03-66-T Date 30 November 2005 Original English IN TRIAL CHAMBER II Before Judge Kevin Parker Presiding Judge Krister Thelin Judge Christine Van Den Wyngaert Registrar Mr Hans Holthuis Judgement of 30 November 2005 PROSECUTOR v FATMIR LIMAJ HARADIN BALA ISAK MUSLIU JUDGEMENT The Office of the Prosecutor Mr Alex Whiting Mr Julian Nicholls Mr Colin Black Mr Milbert Shin Counsel for the Accused Mr Michael Mansfield Q C and Mr Karim A A Khan for Fatmir Limaj Mr Gregor D Guy-Smith and Mr Richard Harvey for Haradin Bala Mr Michael Topolski Q C and Mr Steven Powles for Isak Musliu CONTENTS I INTRODUCTION 1 II CONSIDERATIONS REGARDING THE EVALUATION OF EVIDENCE 4 III CONTEXT 16 A POLITICAL CONTEXT IN KOSOVO AND EMERGENCE OF THE KLA 16 B DEVELOPMENT OF THE KLA UNITS IN VARIOUS REGIONS OF KOSOVO 21 C TAKING OF LLAPUSHNIK LAPUSNIK BY THE KLA IN MAY 1998 27 D THE FALL OF LLAPUSHNIK LAPUSNIK IN JULY 1998 32 IV JURISDICTION UNDER ARTICLES 3 AND 5 OF THE STATUTE 34 A JURISDICTION UNDER ARTICLE 3 34 1 The existence of an armed conflict and nexus 34 a Law 34 b Findings 38 i Organisation of the KLA 38 ii Intensity of the conflict 52 iii Conclusion 62 2 The Four Tadi conditions 63 B JURISDICTION UNDER ARTICLE 5 65 1 Law 65 2 Findings 69 V THE CHARGES 81 A LAW ON THE CRIMES CHARGED 81 1 Introduction 81 2 Crimes against humanity Counts 1 3 5 7 and 9 82 3 Cruel treatment Counts 2 and 6 82 4 Torture Count 4 83 5 Murder Counts 8 and 10 85 B FINDINGS 85 1 Existence of a prison camp in Llapushnik Lapusnik 85 2 Crimes in or around the Llapushnik Lapusnik prison camp Counts 4 6 and 8 106 a Conditions of detention 107 b Cruel treatment torture and murder 109 i Vojko and Ivan Bakrač 109 ii Witness L07 111 iii Witness L10 112 iv Witness L06 114 v Witness L96 115 vi Witness L04 116 vii Witness L12 117 viii Ajet Gashi 119 ix Fehmi Xhema also known as Fehmi Tafa 122 x Milovan Krsti and Miodrag Krsti 127 xi Slobodan Mitrovi 129 xii Miroslav uljini 130 xiii @ivorad Krsti 132 xiv Stamen Genov 134 xv or e uk 138 xvi Sini a Blagojevi 140 xvii Jefta Petkovi and Zvonko Marinkovi 140 xviii Agim Ademi 144 xix Vesel Ahmeti 146 xx Emin Emini 148 xxi Ibush Hamza 151 xxii Hyzri Harjizi 152 xxiii Shaban Hoti 153 xxiv Hasan Hoxha 156 xxv Safet Hysenaj 157 xxvi Bashkim Rashiti 158 xxvii Hetem Rexhaj 159 xxviii Lutfi Xhemshiti 162 xxix Shyqyri Zymeri 163 3 Crimes in the Berishe Berisa Mountains Count 10 165 a Emin Emini 171 b Ibush Hamza 172 c Hyzri Harjizi 174 d Shaban Hoti 175 e Hasan Hoxha 177 f Safet Hysenaj 179 g Bashkim Rashiti 181 h Hetem Rexhaj 182 i Lutfi Xhemshiti 184 j Shyqyri Zymeri 185 VI RESPONSIBILITY OF THE ACCUSED 188 A LAW ON THE FORMS OF LIABILITY CHARGED 188 1 Responsibility under Article 7 1 of the Statute 188 a Committing 188 b Committing through participation in a joint criminal enterprise 188 c Planning 190 d Instigating 190 e Ordering 191 f Aiding and abetting 191 2 Responsibility under Article 7 3 of the Statute 192 a Superior-subordinate relationship 193 b Mental element the superior knew or had reason to know 194 c Necessary and reasonable measures 194 B FINDINGS 195 1 Responsibility of Fatmir Limaj 195 a Was Fatmir Limaj identified at the Llapushnik Lapusnik prison camp 195 b Did Fatmir Limaj hold a position of command and control over the KLA soldiers in the Llapushnik Lapusnik prison camp 214 2 Responsibility of Haradin Bala 233 a Was Haradin Bala identified at the Llapushnik Lapusnik prison camp 233 b Haradin Bala’s alibi 251 c Haradin Bala’s role 260 i Participation in the commission of specific crimes 260 a Torture cruel treatment and murder in or around the Llapushnik Lapusnik prison camp Counts 4 6 and 8 260 b Murder in the Berishe Berisa Mountains Count 10 265 ii Participation in a joint criminal enterprise 266 d Conclusions 268 3 Responsibility of Isak Musliu 269 a Was Isak Musliu identified at the Llapushnik Lapusnik prison camp 269 b Did Isak Musliu hold a position of command and control over the KLA soldiers in the Llapushnik Lapusnik prison camp 276 i Çeliku 3 unit 277 ii Were there other units operating in Llapushnik Lapusnik 280 iii Was Isak Musliu commander of Çeliku 3 or overall commander of the Llapushnik Lapusnik area 281 iv Findings 285 VII CUMULATIVE CONVICTIONS 287 VIII SENTENCING 289 A THE GRAVITY OF THE OFFENCE 289 B AGGRAVATING AND MITIGATING CIRCUMSTANCES 291 C THE GENERAL PRACTICE IN THE COURTS OF THE FORMER YUGOSLAVIA AND THIS TRIBUNAL 293 D CREDIT FOR TIME SERVED IN CUSTODY 294 IX DISPOSITION 295 X ANNEX I GLOSSARY OF TERMS 297 XI ANNEXES II AND III MAPS 303 XII ANNEX IV PROCEDURAL HISTORY 306 A PRE-TRIAL PROCEEDINGS 306 1 Indictment and initial appearance 306 2 History of the Indictment 306 3 Applications for provisional release 307 4 Issues relating to the protection of victims and witnesses 308 5 Health of the Accused Haradin Bala 308 6 Commencement of Trial 309 B TRIAL PROCEEDINGS 309 1 Overview 309 2 Matters relating to witnesses 310 3 Evidentiary issues 311 4 Provisional release 312 I INTRODUCTION 1 The Accused Fatmir Limaj Haradin Bala and Isak Musliu are indicted with crimes allegedly committed by them and other members of the Kosovo Liberation Army “KLA” 1 from May to around 26 July 1998 against Serbian civilians and Kosovo Albanian civilians who were perceived as Serbian collaborators in the Llapushnik Lapusnik area in central Kosovo The Indictment as ultimately amended alleges that at least thirty-five civilians were abducted by KLA forces detained in a prison camp in the village of Llapushnik Lapusnik for prolonged periods of time under inhumane conditions and routinely subjected to assault beatings and torture Fourteen named detainees are alleged to have been murdered in the course of their detention Another ten were allegedly executed in the nearby Berishe Berisa Mountains on or about 26 July 1998 when the KLA forces abandoned Llapushnik Lapusnik and the prison camp came under attack from advancing Serbian forces These allegations support five counts of violations of the laws or customs of war and five counts of crimes against humanity under Articles 3 and 5 respectively of the Statute of the Tribunal for imprisonment cruel treatment inhumane acts torture and murder 2 The Indictment charges the Accused Fatmir Limaj aka Çeliku with individual criminal liability under Article 7 1 of the Statute for allegedly committing planning instigating ordering or otherwise aiding and abetting the aforementioned crimes including through his participation in a joint criminal enterprise He is alleged to have personally participated in the enforcement of the detention of civilians in the Llapushnik Lapusnik prison camp in their interrogation assault mistreatment and torture and to have planned instigated and ordered the murder of detainees both in and around the prison camp and in the Berishe Berisa Mountains Fatmir Limaj is further charged with superior responsibility pursuant to Article 7 3 of the Statute in respect of these offences which is alleged to arise out of the position of command and control he then held over the KLA members responsible for the operation of the Llapushnik Lapusnik prison camp 3 The Indictment charges the Accused Haradin Bala aka Shala with individual criminal liability under Article 7 1 of the Statute for allegedly committing planning instigating ordering or otherwise aiding and abetting the aforementioned crimes including through his participation in a joint criminal enterprise He is alleged to have personally participated in the enforcement of the detention of civilians in the Llapushnik Lapusnik prison camp in their interrogation assault mistreatment and torture as well as in the murder of detainees both in the camp and in the Berishe Berisa Mountains Haradin Bala is not charged under Article 7 3 of the Statute 1 “UÇK” in Albanian 1 Case No type Case # type date 4 The Indictment charges the Accused Isak Musliu aka Qerqiz with individual criminal liability under Article 7 1 of the Statute for allegedly committing planning instigating ordering or otherwise aiding and abetting eight of the ten aforementioned crimes including through his participation in a joint criminal enterprise He is alleged to have personally participated in the enforcement of the detention of civilians as well as in the interrogation assault mistreatment torture and murder of detainees in the Llapushnik Lapusnik prison camp Isak Musliu is further charged with superior responsibility pursuant to Article 7 3 of the Statute in respect of these eight offences which is alleged to arise out of the position of command and control he then held over the KLA soldiers who acted as guards in the Llapushnik Lapusnik prison camp Isak Musliu is not charged however with the two offences alleging murders committed in the Berishe Berisa Mountains on or about 26 July 1998 5 The three Accused have pleaded not guilty to all counts against them 2 6 The term “prison camp” was used throughout trial as a convenient though not necessarily very accurate description The Prosecution case however was that persons were held or detained by the KLA in the months of May June and July 1998 in a compound in the village of Llapushnik Lapusnik The alleged compound was walled with a large metal double gate opening onto the loose-formed narrow roadway which passed by the compound Inside were two houses and various outbuildings around a yard 3 It was the compound of a farming property The Prosecution case is that most prisoners or detainees were held in a basement of one of the houses referred to as the storage room or in a room used to keep cows referred to as the cowshed A few were also detained in the main house KLA soldiers who were guarding the prison congregated in this house and most interrogations and many beatings are alleged to have taken place in this house 4 There was another compound the property of one Bali Vojvoda immediately adjacent where it is alleged a KLA oath ceremony was held which the Accused Fatmir Limaj attended 5 Immediately across the roadway is the compound of Gzim Gashi where it is alleged the KLA established a kitchen for feeding troops and where some KLA soldiers slept 6 References in this decision to the prison camp or to the prison are to the first of these compounds described above in the village of Llapushnik Lapusnik References to prisoners or to detainees are to those who are alleged to have been held in this prison camp at various times relevant to this Indictment 2 3 4 The Accused Haradin Bala and Isak Musliu appeared initially on 20 February 2003 before Judge Liu and entered pleas of not guilty on all charges against them The initial appearance of the Accused Fatmir Limaj was held on 5 March 2003 before Judge Liu and he also pleaded not guilty on all charges against him On 27 February 2004 following amendment of the Indictment the three Accused again pleaded not guilty to all charges against them before Judge Orie Exhibit P6 See infra paras 243-446 2 Case No type Case # type date 7 References to a fighting point or to a point are to a position where usually a small group of KLA soldiers was positioned These were typically and often trenched defence positions which had been prepared to offer protection to the KLA soldiers Many of these were located at the approaches to a village to enable fire to be directed by the KLA soldiers to Serbian forces approaching the village 8 The Serbian forces and the forces of the Federal Republic of Yugoslavia “FRY” engaged in Kosovo in 1998 included forces of the Army of Yugoslavia “VJ” and forces of the Ministry of the Interior “MUP” of the Republic of Serbia 7 The Chamber will refer to the specific forces involved in a particular operation when the identity of these forces is known from the evidence However where there is no evidence regarding the specific Serbian or FRY forces involved the Chamber will refer to these forces generally as Serbian forces This should be understood as meaning Serbian or FRY forces 9 Further the Chamber has referred to locations in Kosovo throughout the Judgement both by their Albanian names and by their names in BCS The name of any given location therefore appears in the text in Albanian BCS In doing so the Chamber has relied upon a list of locations which is in evidence in this case 8 although it is apparent that the list is not always complete and that some locations might well be spelled differently in other documents Finally two maps are attached in Annexes to this Judgement They show the general area relevant to the present case as well as the location of the places material to the charges and frequently referred to in this decision 5 6 7 8 Elmi Sopi T 6767-6768 Ruzhdi Karpuzi T 3096-3098 3175 Exhibit P128 Elmi Sopi T 6729-6733 Ruzhdi Karpuzi T 3087-3096 Exhibit P128 See infra paras 93 164-165 see also Exhibit P230 para 3 Exhibit P219 3 Case No type Case # type date II CONSIDERATIONS REGARDING THE EVALUATION OF EVIDENCE 10 In the present Judgement the Chamber is to determine the innocence or the guilt of each of the three Accused in respect of each of the counts with which each is charged in the Indictment i e ten counts against each of Fatmir Limaj and Haradin Bala and eight counts against Isak Musliu Article 21 3 of the Statute enshrines the presumption of innocence to which each accused is entitled This presumption places on the Prosecution the burden of establishing the guilt of the Accused a burden which remains on the Prosecution throughout the entire trial In respect of each count charged against each Accused the standard to be met for a conviction to be entered is that of proof beyond reasonable doubt 9 Accordingly the Chamber has determined in respect of each of the counts charged against each of the Accused whether it is satisfied beyond reasonable doubt on the basis of the whole of the evidence that every element of that crime and the forms of liability charged in the Indictment have been established In so doing in respect of some issues it has been necessary for the Chamber to draw one or more inferences from facts established by the evidence Where in such cases more than one inference was reasonably open from these facts the Chamber has been careful to consider whether an inference reasonably open on those facts was inconsistent with the guilt of the Accused If so the onus and the standard of proof requires that an acquittal be entered in respect of that count 10 11 In the present case one Accused Haradin Bala relies in part on an alibi defence 11 So long as there is a factual foundation in the evidence for that alibi the Accused bears no onus to establish that alibi it is for the Prosecution to “eliminate any reasonable possibility that the evidence of alibi is true” 12 Further as has been held by another Trial Chamber a finding that an alibi is false does not in itself “establish the opposite to what it asserts” 13 The Prosecution must not only rebut the validity of the alibi but also establish beyond reasonable doubt the guilt of the Accused as alleged in the Indictment 12 The Chamber has been required to weigh and evaluate the evidence presented by all parties It would emphasise that the mere admission of evidence in the course of the trial has no bearing on the weight which the Chamber subsequently attaches to it The Chamber further observes that the seven years that have passed since the events in the Indictment have in all likelihood affected the accuracy and reliability of the memories of witnesses understandably so There were times 9 10 11 12 13 Rule 87 A of the Rules provides in its relevant part “ … A finding of guilt may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proven beyond reasonable doubt ” elebi i Appeals Judgement para 458 On 1 March 2005 the Defence for Isak Musliu had also filed a notice of alibi pursuant to Rule 67 of the Rules Vasiljevi Trial Judgement para 15 elebi i Appeals Judgement para 581 Vasiljevi Trial Judgement footnote 7 4 Case No type Case # type date however where the oral evidence of a witness differed from the account he gave in a prior statement It has been recognised that “it lies in the nature of criminal proceedings that a witness may be asked different questions at trial than he was asked in prior interviews and that he may remember additional details when specifically asked in court ”14 Nevertheless these matters called for careful scrutiny when determining the weight to be given to any such evidence 13 In the present case a number of former KLA members were subpoenaed to testify before the Chamber as Prosecution witnesses In the course of the evidence of some of these witnesses it became apparent that their oral evidence was on certain points materially different from a prior statement of the witness Some of these differences were explained by the witnesses during their evidence Some suggested the differences were due to the method of questioning when the prior statement was made in particular in several instances suggesting a lack of specificity as to the time period being referred to in a particular question The Chamber was able to accept this possibility in some but not all cases Other differences however remain unaccounted for At times it became apparent to the Chamber in particular taking into account the demeanour of the witness and the explanation offered for the differences that the oral evidence of some of these witnesses was deliberately contrived to render it much less favourable to the Prosecution than the prior statement The evidence of some of these former KLA members left the Chamber with a distinct impression that it was materially influenced by a strong sense of association with the KLA in general and one or more of the Accused in particular It appeared that overriding loyalties had a bearing upon the willingness of some witnesses to speak the truth in court about some issues It is not disputed that notions of honour and other group values have a particular relevance to the cultural background of witnesses with Albanian roots in Kosovo This was expressed in the expert report of Stephanie Schwandner-Sievers The Albanian concept of honour governs all relations that extend beyond blood kinship… Solidarity with those individuals that share the same “blood” is taken for granted but faithfulness to a group or cause that reaches beyond the family needs to be ritually invoked Honour can also be explained in terms of an ideal-type of model of conduct and a man’s perceived potential of protecting the integrity of the family or any wider reference group such as the clan or a political party against outside attacks … The pledge of allegiance or besa requests absolute loyalty and it requires the individual’s compliance with family and group values in general At the same time it justifies the killing of those within the group who break this code… However… the members of a group can chose sic to avoid violence The reaction to conflict insult treason or other transgressions to group norms depends on the members’ interpretations of the facts and these may vary greatly 15 Some of these factors were also applicable in the Chamber’s assessment to aspects of the evidence of some former KLA members who were called in the course of the Defence case These are 14 15 Naletili Trial Judgement para 10 Vasiljevi Trial Judgement para 21 Exhibit P201 pp 37-39 5 Case No type Case # type date matters which the Chamber has taken into consideration in assessing the personal credibility of particular witnesses in this case an assessment which in many cases has been most material to the Chamber’s acceptance or rejection of the evidence of a witness whether in whole or in part 14 However the matter goes further Indeed the video-recordings and transcripts of the prior video-recorded interviews of two Prosecution witnesses which revealed material inconsistencies with their oral evidence in court were in the particular circumstances admitted as substantive evidence by decision of the Chamber 16 The considerations discussed above have made the task of the Chamber to determine where the truth lies in these inconsistent accounts undoubtedly more complex At times the Chamber has been unable to make such determinations and has had to leave the evidence aside altogether In any event while the Chamber accepts that as a matter of principle prior inconsistent statements may possibly have some positive probative force at least if they corroborate other apparently credible evidence adduced from other witnesses during trial the Chamber is not persuaded in this case that the prior inconsistent statements of these two witnesses can safely be relied upon as the sole or principal basis for proof of a material fact In the case of these two witnesses this is especially so because each witness in oral evidence disavowed in very material respects what previously had been stated in the interview 15 The Chamber has also heard the evidence of a number of witnesses who may be characterised as “victim witnesses” The events as to which they testified in court were extremely traumatic events involving at times matters of life or death In evaluating the evidence given by these witnesses the Chamber has taken into consideration that any observation they made at the time may have been affected by stress and fear this has called for particular scrutiny on the part of the Chamber The Chamber has also been conscious that many victim-witnesses with Albanian roots had family links in varying degrees to each other or were from villages located near to the village of another witness or witnesses The cultural factors of loyalty and honour discussed earlier may also have affected their evidence as to the events and the Chamber has therefore sought to take account of this Further witnesses might well have and in some cases testified as to having discussed the events with one another in the course of the years that have passed since the relevant events The Chamber further observed that a significant number of witnesses requested protective measures at trial and expressed concerns for their lives and those of their family This context of fear in particular with respect to witnesses still living in Kosovo was very perceptible throughout the trial The Chamber heard evidence about witnesses requesting to be interviewed by investigators at night to avoid the fact of an interview becoming known or in a third language 16 Decision on the Prosecution’s Motions to Admit Prior Statements as Substantive Evidence 25 April 2005 6 Case No type Case # type date rather than through Albanian interpreters as they feared they would be compromised 17 It is also the case that a number of victims who came to testify only did so in response to a subpoena issued by the Chamber The Chamber has sought inter alia to give due consideration to these matters as it has undertaken the very difficult task in this case of evaluating the evidence 16 Of particular importance in this case is the evidence as to the visual identification of each of the Accused and of detainees and victims in the Llapushnik Lapusnik prison camp and in the nearby Berishe Berisa Mountains on or about 26 July 1998 Throughout the trial the Defence has challenged the reliability of this identification evidence and the methods by which it was obtained particularly in so far as it relates to the three Accused 17 It has become widely accepted in domestic criminal law systems that visual identification evidence is a category of evidence which is particularly liable to error The jurisprudence in these systems recognises that errors may occur even with the most honest confident and apparently impressive witnesses Wrongful convictions based on mistaken eyewitness identifications have been known to result As a consequence visual identification evidence is treated with very special care 18 In this Tribunal the Appeals Chamber has drawn attention to the need for “extreme caution” in relation to visual identification evidence 19 In doing so it highlighted that the evaluation of an individual witness’ evidence as well as the evidence as a whole should be conducted with considerations such as those enunciated in Reg v Turnbull20 in mind The Appeals Chamber has stressed the need to “acknowledge the frailties of human perceptions and the very serious risk that a miscarriage of justice might result from reliance upon even the most confident witnesses who purport to identify an accused without an adequate opportunity to verify their observations ”21 The Appeals Chamber has identified albeit not exhaustively a number of factors which may render a decision to rely on identification evidence unsafe “identifications of defendants by witnesses who had only a fleeting glance or an obstructed view of the defendant identifications occurring in the dark and as a result of a traumatic event experienced by the witness inconsistent or inaccurate testimony about the defendant’s physical characteristics at the time of the event misidentification or denial of the ability to identify followed by later identification of the defendant by a witness the existence of irreconcilable witness testimonies and a witness’ delayed 17 18 19 20 Kaare Birkeland T 1643 Anargyros Kereakes T 4934-4937 See for example Reg v Turnbull 1967 QB 224 Reid v Reg 1991 I AC 363 United Kingdom U S v Wade 388 U S 218 1967 United States Bundesgerichtshof reprinted in Strafverteidiger 409 1991 Bundesgerichtshof reprinted in Strafverteidiger 555 1992 Germany Oberster Gerichtshof 10 December 1992 15 0s 150 92 4 June 1996 11 0s 59 96 and 20 March 2001 11 0s 141 00 Austria Kupre ki Appeals Judgement para 34 Reg v Turnbull 1967 QB 224 See for example Reid v Reg 1991 I AC 363 United Kingdom Auckland City Council v Brailey 1988 1NZLR 103 New Zealand R v Mezzo 1986 1 SCR 802 Canada Dominican v R 1992 173 CLR 555 Australia 7 Case No type Case # type date assertion of memory regarding the defendant coupled with the “clear possibility” from the circumstances that the witness had been influenced by suggestions from others ”22 18 Some witnesses have identified one or more of the Accused in the course of their evidence in the courtroom Leaving aside other circumstances relevant to the reliability of an identification by each of these witnesses circumstances which are considered later in this decision the Chamber is very conscious that an identification of an Accused in a courtroom may well have been unduly and unconsciously influenced by the physical placement of the Accused and the other factors which make an Accused a focus of attention in a courtroom 23 19 Reservations have also been expressed by another Trial Chamber with respect to the weight to be attached to identifications made using photo spreads 24 In this case the Chamber has considered with care the evidence of a Defence witness Professor Willem Wagenaar The Chamber found his evidence helpful but not always entirely persuasive especially to the extent that it sought to identify absolute categories as to the degree of reliability of visual identification evidence A particular concern with a photo spread identification is that the photograph used of the Accused may not be a typical likeness even though it accurately records the features of the Accused as they appeared at one particular moment 25 To this the Chamber would add as other relevant factors the clarity or quality of the photograph of the Accused used in the photo spread and the limitations inherent in a small two-dimensional photograph by contrast with a three-dimensional view of a live person It is also a material factor whether the witness was previously familiar with the subject of the identification i e whether he is “recognising” someone previously known or “identifying” a stranger 26 While the Chamber has not been prepared to disregard every identification made using a photo spread of one or more of the Accused in the present case it has endeavoured to analyse all the circumstances as disclosed in the evidence and potentially affecting such identifications conscious of their limitations and potential unreliability and has assessed the reliability of these identifications with considerable care and caution Among the matters the Chamber regarded as being of particular relevance to this exercise was whether the photograph was clear enough and matched the description of the Accused at the time of the events whether the Accused blended with or stood out among the foils whether a long time had elapsed between the original sighting of the Accused and the photo spread identification whether the identification was 21 22 23 24 25 Kupre ki Appeals Judgement para 34 Kupre ki Appeals Judgement para 40 footnotes omitted Professor Willem Wagenaar T 7140 Exhibit DM7 see also Vasiljevi Trial Judgement para 19 This procedure was deemed “usually inherently unreliable where the witness was not previously familiar with the Accused” given that a photograph “records what a person looks like in the one split second when that person may have been moving his or her features and which may not therefore always provide a safe impression of what that person really looks like” Vasiljevi Trial Judgement para 18 Professor Willem Wagenaar T 7140 Exhibit DM7 8 Case No type Case # type date made immediately and with confidence or otherwise whether there were opportunities for the witness to become familiar with the appearance of the Accused after the events and before the identification be it in person or through the media 27 and whether the procedure in some way may have encouraged the witness to make a positive identification despite some uncertainty or encouraged the witness to identify an Accused rather than someone else 20 With particular regard to the evidence of the visual identification of each of the Accused by various witnesses it is to be emphasised that like all elements of an offence the identification of each Accused as a perpetrator as alleged must be proved by the Prosecution beyond reasonable doubt This is to be determined however in light of all evidence bearing on the issue of identification evidence both for and against In a particular case this could include for example an alibi or whether an identifying witness has a motive which would be furthered by a false identification Evidence of the visual identification of an Accused by a witness is but one piece of what may be the relevant evidence in a particular case The ultimate weigh to be attached to each relevant piece of evidence including each visual identification where more than one witness has identified an Accused is not to be determined in isolation Even though each visual identification and each other relevant piece of evidence viewed in isolation may not be sufficient to satisfy the obligation of proof on the Prosecution it is the cumulative effect of the evidence i e the totality of the evidence bearing on the identification of an Accused which must be weighed to determine whether the Prosecution has proved beyond reasonable doubt that each Accused is a perpetrator as alleged 28 21 In some cases only one witness has given evidence on a fact material to this case Of course the testimony of a single witness on a material fact does not as a matter of law require corroboration 29 Nevertheless it has been the approach of the Chamber that any such evidence required particularly cautious scrutiny before the Chamber placed reliance upon it 22 Further the Chamber recalls Article 21 4 g of the Statute which provides that no accused shall be compelled to testify against him or herself Two of the three Accused in the present case namely Haradin Bala and Isak Musliu did not give evidence at trial The Chamber has not of course attached any probative relevance to their decision Fatmir Limaj however testified in his own defence before the Chamber He did so before any other Defence witnesses were called which 26 27 28 29 Professor Willem Wagenaar T 7136 Exhibit DM7 Professor Willem Wagenaar T 7136-7138 7187-7190 7216-7219 Exhibit DM7 See Prosecutor v Kunarac Decision on Motion for Acquittal Case No IT-96-23-T 3 July 2000 where the Trial Chamber stated “A tribunal of fact must never look at the evidence of each witness separately as if it existed in a hermetically sealed compartment it is the accumulation of all the evidence in the case which must be considered” para 4 Aleksovski Appeals Judgement para 62 9 Case No type Case # type date counts in his favour in the assessment of credibility This decision to testify has not created any burden on the Accused to prove his innocence Rather the Chamber had to determine whether notwithstanding the evidence of the Accused the Prosecution’s evidence is sufficiently strong to meet the required standard for a conviction 30 23 Measures to protect the identity of many witnesses and members of their families were ordered by the Chamber Concerns for personal safety persuaded the Chamber that these protective measures were justified For the same reasons many witnesses are referred to in this Judgement by a number rather than by name and other details which might lead to their identification or to the identification of members of their families have been omitted 31 24 At the time relevant to the Indictment it was quite usual for members of the KLA to use a pseudonym rather than their own name It has been necessary therefore to make extensive references in this decision to persons by the use of pseudonyms Further the evidence discloses that a number of witnesses of Albanian extraction were known by a variety of names usually drawn from different family connections Unfortunately the evidence was at times confusing because of this cultural practice the Chamber has sought to minimise the effects of this in this Judgement 25 The Chamber observes that the Defence have raised a number of concerns regarding the credibility of particular witnesses in this case in particular L96 Dragan Ja ovi L64 Ramiz Qeriqi L04 L06 L10 and L12 26 L96 gave evidence to the Tribunal about his own abduction a family member’s abduction his detention in the Llapushnik Lapusnik prison camp and the alleged killings in the Berishe Berisa Mountains L96 testified to being one of two detainees of the Llapushnik Lapusnik prison camp to have been present at the killings in the Berishe Berisa Mountains and to have survived 32 As a result L96 has provided evidence relevant to important material facts in this case some of which is uncorroborated Some of L96’s evidence is second-hand some of it conflicted with that of other Prosecution witnesses and parts revealed internal inconsistency In addition to these issues one aspect of L96’s testimony is of particular concern to the Chamber L96 maintained throughout his viva voce evidence that he did not and had not actively or voluntarily collaborated with the Serbian authorities 33 However there are a number of pieces of evidence to suggest the contrary 34 It is also 30 31 32 33 34 Vasijlevi Trial Judgement para 13 Whenever appropriate the Chamber has also referred to protected persons as “personal relations” in this Judgement L96 T 2397-2398 L96 T 2517 2519 2543 2545 For example there is evidence that L96’s family was friendly with the Serbian authorities Dragan Ja ovi T 53055306 5400-5402 5407-5408 L96 T 2525 and that he volunteered information to the Serbian authorities T 24262427 5284 5428 see also Exhibits DM9 and DM15 10 Case No type Case # type date significant that some of L96’s own evidence becomes more plausible if it is accepted that he was a Serbian collaborator 35 Similarly much of the conflict between the evidence of L96 and that of others as well as the internal inconsistencies in his own evidence are more readily explained if he was a Serbian collaborator The Chamber notes that L96 may have been motivated by a desire to protect himself and his family by maintaining that he did not willingly provide information to the Serbian authorities 36 Nevertheless the Chamber is left with the distinct impression that L96 did indeed give false testimony on this issue His willingness to do so instils in the Chamber a general distrust of the credibility of this witness As a result the individual components of his evidence have been rigorously scrutinised and used with caution The Chamber has not been prepared to accept and act on the evidence of L96 alone regarding any material issue and has only given weight to those parts of his evidence which are confirmed in some material particular by other evidence which the Chamber accepts 27 Dragan Ja ovi has given evidence at this Tribunal in two trials Within a short period of time he appeared as a witness for the Prosecution in this case and he was called as a witness for the Defence in the Milo evi trial Dragan Ja ovi was presented as a credible witness for the Prosecution in this trial while contemporaneously OTP investigators obtained material with which to discredit Dragan Ja ovi a little later when he appeared for the Defence in the Milo evi trial The Chamber has previously noted that there was no subterfuge involved in the OTP’s conduct 37 The material gathered by OTP investigators was made available to the Defence in this trial at the earliest opportunity indeed in time for use in the cross examination of Dragan Ja ovi 38 The Chamber is nevertheless concerned that these conflicting strategies by the OTP in relation to the same witness are undesirable They necessarily give rise to obvious problems in the way of accepting the witness as honest and reliable and to serious internal policy concerns for the OTP However this Chamber is now tasked with analysing the credibility of Dragan Ja ovi by examining all the material placed before it At the time relevant to the Indictment Dragan Ja ovi worked as a crime investigation policeman in the Secretariat of the Interior in Ferizaj Urosevac Dragan Ja ovi regarded the KLA as an “illegal terrorist organisation”39 and his work involved 35 36 37 38 39 For example according to L96 after he escaped from the killings at the Berishe Berisa Mountains he walked 30-35 km through KLA controlled areas to Ferizaj Urosevac T 2423-2424 He stayed with a cousin and after a couple of days was arrested and taken to the SUP and interviewed by Dragan Jasovi T 2389 An alternative account is provided by Dragan Ja ovi who states that L96 turned himself over to Serbian authorities in Komaran Komorane considerably closer to the Berishe Berisa Mountains and which is corroborated by a report allegedly made by the Serbian authorities T 2426-2427 5284 5428 In relation to L96’s failure to mention to CCIU investigators that he had previously been to the Berishe Berisa Mountains with the Serbian authorities L96 stated that it was “not a valid thing because of my family and my friends to tell them that I was taken there by the Serbs in Llapushnik” T 2453 Decision on Joint Defence Motion on Prosecution’s Late and Incomplete Disclosure 7 June 2005 paras 22-25 Decision on Joint Defence Motion on Prosecution’s Late and Incomplete Disclosure 7 June 2005 paras 22-25 Dragan Ja ovi T 5331 11 Case No type Case # type date investigating the establishment and operation of the KLA its leadership staff and headquarters 40 The Chamber’s main concern pertaining to the credibility of Dragan Ja ovi relates to the manner in which he carried out his work and in particular the circumstances under which the “information” about which he gave evidence was obtained In the course of searching cross-examinations Dragan Ja ovi was confronted with a significant amount of material including viva voce evidence of other witnesses 41 documentary evidence42 and a number of Rule 92bis statements 43 which contain allegations of detention interrogation mistreatment and torture at the police station where Dragan Ja ovi served Much of this evidence specifically refers to Dragan Ja ovi and the evidence reveals a number of compelling consistencies 44 While Dragan Ja ovi refuted all allegations put to him the Chamber is persuaded that the combined effect of this evidence is to raise serious doubts about his general credibility As a consequence the Chamber has not been prepared to accept as reliable the evidence of Dragan Ja ovi which is based on information “gained” by him from persons he interviewed and regards the other evidence of this witness with the utmost caution 28 L64 was declared a cooperative witness by an order of The District Court of Prishtina Pristina on 16 October 2003 45 Pursuant to this Order the pending charges against L64 of unlawful possession of firearms and possession of heroin were discontinued L64’s detention in relation to these charges was terminated and L64’s family was relocated out of Kosovo 46 The Defence suggests that motivated by a desire to cooperate for the above “inducements” L64’s evidence was moulded to accord with the Prosecution’s case 47 The Chamber notes that counterbalancing this consideration although to what degree is unknown are the terms for the revocation of the Order as stipulated in that document relevantly the provision of false testimony The Chamber also notes that much of L64’s evidence about Llapushnik Lapusnik specifically in statements made to OTP investigators on 25 May 2003 and 17 and 18 June 2003 was given prior to his arrest on 13 June 2003 and the Order granting him cooperative witness status Nevertheless in assessing the general credibility of this witness the Chamber considers that L64’s prior criminal record 48 criminal conduct49 and history of personal drug use 50 weigh very negatively in an 40 41 42 43 44 45 46 47 48 49 50 Dragan Ja ovi T 5198-5199 See L96 T 5420-5422 Figures issued by the Council for the Defence of Human Rights and Freedoms comprising a list of 371 alleged victims of mistreatment at the police station where Dragan Ja ovi worked between 1991-1999 T 5341-5344 Exhibit DM12 Exhibit DM16 Exhibit DM17 Exhibit DM18 The presence and use of “police sticks” L96 T 5420-5422 Dragan Ja ovi T 5343 T 5348 Exhibit DM18 the presence and use of baseball bats T 5348 Exhibit DM16 Exhibit DM17 the forced signing of statements L96 T 2540-2542 Exhibit DM16 Exhibit DM17 Exhibit P166 L64 T 4688-4692 Defence Final Brief para 808 L64 T 4319-4320 4690 Weapons trading L64 T 4318-4320 4622 4815-4820 Heroin trading L64 T 4325-4328 L64 T 4324-4328 4427-4436 12 Case No type Case # type date assessment of the trustworthiness of L64 The Chamber has also taken into consideration the allegations made against L64 concerning his own activities as a member of the KLA at the time relevant to the Indictment including at the Llapushnik Lapusnik prison camp 51 These factors in combination leave the Chamber with an extremely negative view of the credibility of this witness The Chamber has not been prepared to act on the evidence of L64 alone regarding any material issue and has only given weight to those parts of his evidence which are confirmed in some material particular by other evidence which the Chamber accepts 29 Ramiz Qeriqi aka Luan was also a KLA member at the time relevant to the Indictment and was summonsed by the OTP as a suspect in April 2003 52 At the time of this trial no charges were pending against this witness The Chamber was informed that no formal agreement had been concluded and no special sanctions or measures were imposed upon him in relation to his testimony Ramiz Qeriqi stated when he gave evidence at this trial that he believed he was no longer a suspect 53 While the Defence requested that the Chamber call on the Prosecution to clarify its position in relation to this witness the Chamber declined to do so 54 Serious allegations were levelled against Ramiz Qeriqi in the course of the trial The Defence asserts that Ramiz Qeriqi’s participation in the abduction of Serbs and Serbian collaborators some of which may have been taken to the Llapushnik Lapusnik prison camp made him a “gatekeeper to the crimes alleged in the Indictment” 55 While Ramiz Qeriqi denied all culpability the Prosecution acknowledges that there is considerable evidence to the contrary and that Ramiz Qeriqi may have been untruthful about his involvement in the kidnappings 56 The Prosecution submits however that Ramiz Qeriqi provided reliable evidence in relation to the development and structure of the KLA 57 The Prosecution claims that in this respect Ramiz Qeriqi has no motivation to be untruthful and has genuine pride in the KLA’s achievements 58 In the view of the Chamber Ramiz Qeriqi’s evidence is obviously motivated by a desire to avoid self incrimination The pertinent question however is whether this motivation to avoid self incrimination may have resulted in the untruthful placement of blame on any of the Accused by way of fabrication of evidence Ramiz Qeriqi actively asserted in his evidence when questioned about this that he has not incriminated anyone by his evidence “I have not accused anyone and I haven’t seen anyone committing any crimes To my recollection I have not accused anyone I’ve just told the truth about KLA of what I have seen with my own eyes ”59 51 52 53 54 55 56 57 58 59 L64 T 4832-4834 4839-4844 4867-4869 Ramiz Qeriqi T 3542 Ramiz Qeriqi T 3699 T 3648-3649 Defence Final Brief para 144 Prosecution Final Brief para 29 Prosecution Final Brief para 29 Prosecution Final Brief para 29 Ramiz Qeriqi T 3718 13 Case No type Case # type date In the Chamber’s assessment parts of the evidence given by this witness are coloured by a motivation to avoid self-incrimination The Chamber does not place reliance on these parts of the testimony While other aspects of his evidence do not appear to be affected in their reliability out of caution the Chamber has both scrutinised these aspects with great care and tempered its reliance on this evidence accordingly The Chamber regards Ramiz Qeriqi as a witness of diminished credibility 30 Further it is submitted by the Defence for Haradin Bala that a family tension may have influenced events in the prison camp and the credibility of the evidence of L10 L06 L04 and L12 These four witnesses are each members in some degree of one extended family It is contended by the Defence for Haradin Bala that elements of the family were involved in a dispute over land with members of another family 60 31 There is evidence of such a dispute and that it had not been resolved by the time relevant to the Indictment 61 Nevertheless it remains undemonstrated and unsubstantiated that there is a link between this longstanding inter-family tension and the events in Llapushnik Lapusnik Two unsubstantiated matters are advanced by the Defence for Haradin Bala It is submitted that L10 acknowledged there was a link in a statement he gave to ICTY investigators 62 This was not his evidence before the Chamber however and that statement is not in evidence Secondly it is contended there is a link between one of the conflicted families and the Accused Haradin Bala aka Shala 63 The only evidence on this goes no higher however than that of L12 who said that Ramadan Behluli is a friend of Shala’s brother-in-law 64 32 While accepting there is a special significance in Kosovo Albanian culture of family groups and the relevance of community involvement in the settlement of disputes between families 65 it has not been demonstrated by the evidence in this case that the Chamber should not accept the evidence of the four witnesses connected with one of the conflicted families because of a pre-war dispute with another family with which at the highest the Accused Haradin Bala is suggested to have a connection by virtue of an unsubstantiated friendship Neither is the Chamber left in doubt about the credibility of these four witnesses on any such basis 33 It is further submitted by the Defence for Haradin Bala that the evidence of the four witnesses connected with the family concerned should also be discounted or disregarded because 60 61 62 63 64 65 Defence Final Brief paras 653-661 L06 T 986-987 L10 T 2905-2907 L12 T 1786-1788 1831 Defence Final Brief para 654 Defence Final Brief para 660 L12 T 1847-1849 L12 T 1833-1836 14 Case No type Case # type date they live in some proximity to each other and had discussed matters relevant to the case before they came to the Tribunal to give evidence 66 34 L10 said he had discussed events in the prison camp with members of his family who knew about it The questioning did not however seek to determine whether these included any of L06 L12 and L04 67 L04 did not remember any discussion with L06 about his experience in the camp before coming to the Tribunal 68 It was accepted in evidence that at some time after July 1998 L10 had sought and received information about Shala’s real name from his father and also from L96 not from the same family 69 L04 had also learned Shala’s real name from a son of his cousin and also from another person not from the family 70 35 The Chamber accepts the probability of some discussion by the four men who were prisoners with some members of their family over the years since July 1998 It would be unnatural for it to be otherwise although the Chamber accepts that as is also indicated in the evidence there may well have been a personal reluctance to discuss in detail the harrowing experience It would also not be surprising for there to have been at least some exchange between those who were called to give evidence before this Tribunal There is nothing in the evidence nor from the Chamber’s appreciation of the demeanour of these witnesses however to provide any foundation for the contention that it should be concluded that some or all of these four witnesses colluded and fabricated or falsified their evidence relevant to the events in Llapushnik Lapusnik or in the Berishe Berisa Mountains because they were of the one family The Chamber is not persuaded that the evidence of these four witnesses as to their respective experiences in Llapushnik Lapusnik and in the Berishe Berisa Mountains has been affected in its honesty by any family connection or discussion 66 67 68 69 70 Defence Final Brief paras 670-672 704-706 728-731 752 L10 T 3016-3017 L04 T 1226-1227 L10 3024-3030 L04 T 1238-1241 15 Case No type Case # type date III CONTEXT A Political context in Kosovo and emergence of the KLA 36 The crimes alleged in the Indictment took place in the territory of Kosovo currently a United Nations-administered province within the Union of Serbia and Montenegro bordering on the north and east the Republic of Serbia on the south Macedonia and Albania and on the west Albania and Montenegro 37 Under the Constitution of the Socialist Federal Republic of Yugoslavia “SFRY” of 1974 Kosovo was an autonomous province within the Republic of Serbia and one of the constituent entities of the SFRY thus enjoying a certain degree of self-management and autonomy 71 Kosovo’s status as an autonomous province within the Republic of Serbia was also recognized by the Constitution of the Republic of Serbia of 1974 which further proclaimed the province’s autonomy to regulate certain administrative and linguistic matters 72 38 In November 1988 the Assembly of Serbia proposed amendments to the Constitution of Serbia that would limit Kosovo’s autonomous powers 73 The proposed amendments triggered a strong public reaction in Kosovo and marches against the proposals attended by a large number of people were held 74 The protests intensified in February 1989 when many people in Kosovo went on strike or declared hunger strikes 75 On 3 March 1989 the SFRY Presidency declared a state of emergency Some days later the Assembly of Kosovo met in Prishtina Pristina and among protests and increased military presence passed the proposed constitutional amendments 76 On 28 March 1989 the Assembly of Serbia amended the Constitution of Serbia and thus effectively revoked Kosovo’s autonomous status 77 39 In 1990 the Assembly of Kosovo and the provincial government were abolished 78 In March 1990 the Assembly of Serbia adopted a series of measures which led to the dismissal of Kosovo Albanians from political and economic institutions and from large business establishments 79 Education in Albanian language especially secondary and higher education was 71 72 73 74 75 76 77 78 79 See Articles 1 2 and 4 of the SFRY Constitution of 1974 See Articles 1 147 240 291-293 of the Constitution of the Republic of Serbia of 1974 Exhibit P201 p 17 Fatmir Limaj T 5862 Exhibit P201 p 17 Fatmir Limaj T 5862 5865 See also Fadil Bajraktari T 6888 Exhibit P201 p 17 Fatmir Limaj T 5862-5863 Exhibit P201 p 17 Fatmir Limaj T 5865 See Exhibit P201 p 17 Exhibit P201 p 17 Exhibit P201 p 17 Shukri Buja T 3727-3729 Elmi Sopi T 6713-6715 Dr Zeqir Gashi 5665 Fatmir Limaj T 5866-5868 Exhibit P178 p 1 Exhibit DM12 paras 8 and 9 16 Case No type Case # type date curtailed 80 Kosovo Albanian students and professors were denied access to universities and thus had to organise a parallel system of education with classes being held in private homes 81 The number of human rights violations against Kosovo Albanians increased 82 Kosovo Albanians were arrested and mistreated by the Serbian police 83 40 On 2 July 1990 the Kosovo Albanian delegates of the Assembly of Kosovo gathered outside the parliament building and declared that the revocation of Kosovo’s autonomy was unlawful and that the province would participate in the Federation only if it was granted the same status as the other republics 84 The statement was declared illegal by the Serbian authorities85 but it provoked a feeling of euphoria among Kosovo Albanians 86 41 In this period several political parties and movements emerged The Democratic League of Kosovo “LDK” a political party advocating for a peaceful solution of the Kosovo question through dialogue was formed in 1989 87 Its chairman was Ibrahim Rugova At about the same time in 1990 the Popular Movement for Kosovo “LPK” a successor of the Popular Movement for the Republic of Kosovo “LPRK” was established 88 The LPK advocated for a solution of the Kosovo question through active means and did not exclude the possibility of armed action 89 The LPK was active primarily among Kosovo Albanian communities in countries in Western Europe as its activities in Kosovo were conducted underground 90 After the public appearance of the Kosovo Liberation Army “KLA” in 1997 91 the LPK’s activities focused on supporting the KLA politically and financially 92 42 In September 1991 a referendum for independence was held in Kosovo in which the Serbian population of the province did not participate The overwhelming majority of the Kosovo Albanians voted for independence 93 In May 1992 elections were held in Kosovo and the LDK led by Ibrahim Rugova won the majority of votes 94 However the Parliament never convened 95 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 Exhibit P201 p 18 Dr Zeqir Gashi T 5598-5560 Fatmir Limaj 5866-5868 See also Exhibit P201 p 56 Exhibit P201 p 18 Ruzhdi Karpuzi T 3056-3057 Sylejman Selimi T 2058-2059 Fatmir Limaj T 5866 Exhibit P197 para 8 Exhibit DM12 paras 17-22 Exhibit P201 p 18 See also Fatmir Limaj T 5866 Exhibit P210 p 18 Fatmir Limaj T 5866-5867 Exhibit P201 p 50 See also Jakup Krasniqi T 3298 Ramadan Behluli T 2653 Shukri Buja T 3724 Shukri Buja T 3731 Shukri Buja T 3731 See also Ramiz Qeriqi T 3554-3556 See infra para 48 Shukri Buja T 3732 Exhibit P201 p 18 Fatmir Limaj T 5875-5876 Fatmir Limaj T 5876-5877 Exhibit P201 p 18 Fatmir Limaj T 5881 Jakup Krasniqi T 3296 17 Case No type Case # type date 43 In the meantime discrete military formations were formed clandestinely In 1991 Adem Jashari and an armed political formation in Prekazi Prekaz Skenderaj Srbica municipality organised the first armed action against the Serbian police and military forces 96 44 Following unsuccessful attempts to launch the work of the new Kosovo Parliament the political opposition to the LDK and its policy for a peaceful solution of the Kosovo question grew stronger 97 In the period 1991-1993 the emerging military formations and these political groups began to establish closer connections 98 In March or April 1993 a meeting was held in Preqazi Prekaze attended by Adem Jashari representing the military formations as well as by Jakup Krasniqi and other representatives of the political formations 99 At the meeting the future roles of the political and the military formations were determined and the KLA was formed 100 While the formation of the KLA was announced in 1994 101 it did not become widely known in Kosovo until 1997 102 45 The KLA supported a solution of the Kosovo question through an active armed resistance to the official regime 103 It was prohibited by the official authorities and operated underground 104 Its activities aimed at preparing the citizens of Kosovo for a liberation war at mobilizing the population throughout the entire territory and at responding by armed action to the acts of violence of the Serbian authorities 105 It was viewed by the Serbian authorities and some observers as a terrorist organisation 106 while for its supporters the KLA was a guerrilla liberation movement targeting the Serbian police and army in Kosovo 107 46 The main governing body of the KLA was the General Staff Among other activities the General Staff issued statements on behalf of the KLA informing the public of its activities 108 authorised military action 109 and assigned tasks to individuals in the organisation 110 The General Staff operated underground 111 In the early years of the KLA’s existence only a small number of its 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 Jakup Krasniqi T 3293 Fatmir Limaj T 5881 Jakup Krasniqi T 3294-3296 Jakup Krasniqi T 3306-3307 Jakup Krasniqi T 3306-3307 Jakup Krasniqi T 3296 See Rexhep Selimi T 6592 Shukri Buja T 3732 Jakup Krasniqi T 3303-3304 See also Sylejman Selimi T 2058-2060 Jakup Krasniqi T 3307 See Jakup Krasniqi T 3297 Fatmir Limaj T 5884-5886 See John Crosland T 1864 See also Fatmir Limaj T 6200 Fatmir Limaj T 6129-6130 6200-6205 Jakup Krasniqi T 3430-3431 Jakup Krasniqi T 3314-3315 The fighting in both Rahovec Orahovac and Bardhi i Madh Veliki Belacevac for the Obliq Obili mine started without the authorisation of the General Staff of the KLA Jakup Krasniqi T 3415-3417 which may imply that usually military operations of this type required the authorisation of the General Staff See infra paras 94-104 Jakup Krasniqi T 3305 18 Case No type Case # type date members were based in Kosovo the majority operating from countries in Western Europe from the United States or from Albania 112 In 1996 however the General Staff expanded its operations in Kosovo 113 The commander of the KLA from its inception until March 1998 was Adem Jashari 114 After Adem Jashari’s death on or about 5 March 1998 the KLA commander became Azem Syla 115 In May 1998 the KLA’s General Staff included also the following members Sokol Bashota Rexhep Selimi Llahib Rrahimi Xhavid Zeka Hashim Thaci Kadri Veseli and Jakup Krasniqi 116 Due to the difficult security situation and the fact that they had to operate underground the General Staff did not meet regularly 117 47 Between 1994 and 1997 the situation in Kosovo continued to deteriorate 118 Albanians continued to be fired from political economic and educational institutions 119 demonstrations were held Kosovo Student Individuals involved in political life were taken to police stations for questioning or “informative talks” 120 Kosovo Albanians were being arrested in large numbers It is said they were often mistreated by the police 121 Many were charged with illegal possession of arms Thousands of people left Kosovo 122 The exclusion of the Kosovo question from the Dayton Peace Agreement in 1995 further galvanised the more radical political movements 123 48 At the end of 1997 and the beginning of 1998 the tension in Kosovo exacerbated In November 1997 during an armed clash between Serbian forces and the KLA in the village of Llaushe Lausa Halil Geci a teacher was killed 124 At his funeral which was attended by thousands of people and was broadcast on Kosovo television three KLA members wearing masks appeared in public for the first time 125 Their appearance made the KLA’s existence known to the wider public in Kosovo 126 49 On 28 February and 1 March 1998 Serbian police forces launched an attack on the villages of Qirez Cirez and Likoshan Likosane located two km apart in the Drenica area 127 Helicopters 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 Jakup Krasniqi T 3305-3306 Jakup Krasniqi T 3309-3310 Jakup Krasniqi T 3309-3310 Jakup Krasniqi T 3310-3311 Jakup Krasniqi T 3310-3311 See also Rexhep Selimi T 6587-6588 Jakup Krasiqi T 3310 Shukri Buja T 3727-3729 Exhibit P197 para 11 Jan Kickert T 659 See Shukri Buja T 3727 See Fatmir Limaj T 5886-5888 See also Ramadan Behluli T 2648-2651 2874-2876 Fatmir Limaj T 5882-5883 Jakup Krasniqi T 3298-3299 See for example Jakup Krasniqi T 3303-3305 Fatmir Limaj T 5882-5883 Fatmir Limaj 6120 Fatmir Limaj 6120 Jakup Krasniqi T 3301-3303 Ramadan Behluli T 2654-2655 Shukri Buja T 3732 See also Ramadan Behluli T 2654-2655 Ruzhdi Karpuzi T 3223 Exhibit P212 tab 5 p 18 19 Case No type Case # type date armoured military vehicles mortars and machine guns were used in the attack 128 In both cases the Serbian special police forces attacked without a warning and fired indiscriminately at civilians 129 On or about 5 March 1998 Serbian security forces attacked the family compound of the leader of the KLA Adem Jashari in Prekazi-i-Poshtem Donje Prekaze a village located not far from Likoshan Likosane and Qirez Cirez also in the area of Drenica 130 The fighting in which armoured vehicles were used continued for about 36 hours 131 The evidence is that during the FebruaryMarch 1998 attacks in the area of Drenica 83 Kosovo Albanians were killed 132 Among the dead victims were elderly people133 as well as at least 24 women and children 134 During the attack on Qirez Cirez a pregnant woman was shot in the face135 and a baby was killed in Prekazi-iPoshtem Donje Prekaze 136 Many of the victims were shot at a very close range 137 Reports indicated that men were summarily executed in front of their homes and that some of the victims were shot dead while in police custody 138 During the attack on Prekazi-i-Poshtem Donje Prekaze the entire Jashari family except for an 11 year old girl was killed 139 50 The attacks on the three villages in the area of Drenica marked a turning point in the Kosovo crisis The popular support for the KLA greatly increased The funeral of the victims was attended by tens of thousands of people 140 Jakup Krasniqi at the time a member of the KLA’s General Staff delivered a speech 141 Many people in Kosovo were joining the KLA and its support among Kosovo Albanian communities abroad was growing 142 51 In March 1998 a group of about 15 Kosovo Albanians living in Switzerland including Ismet Jashari the Accused Fatmir Limaj Hashim Thaci Agim Bajram and Shukri Buja left for Kosovo 143 They flew to Tirana in Albania and on the following day crossed the Kosovo-Albanian border on foot carrying bags loaded with ammunition 144 They went to the Drenica zone where 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 Exhibit P212 tab 5 p 18 Exhibit P212 tab 5 p 18 Exhibit P212 tab 5 pp 18 27 Sylejman Selimi T 2063-2064 Rexhep Selimi T 6592 See also John Crosland T 1858-1860 Exhibit P92 tab 2 John Crosland T 1863 Exhibit P212 tab 5 18 See also Jan Kickert T 758-760 John Crosland T 1863 Exhibit P212 tab 5 18 Jan Kickert believed that there were 10 children and 18 women among the casualties T 758-759 Exhibit P212 tab 5 pp 18 23 Jakup Krasniqi T 3301-3303 Peter Bouckaert T 5555-5556 Exhibit P212 tab 5 p 31 John Crosland T 1863 Exhibit P212 tab 5 pp 20-21 Exhibit P212 tab 5 p 18 Peter Boukaert T 5516-5517 Jaqup Krasniqi testified that the funeral of the victims in Likoshan Likosane and Qirez Cirez was attended by 200 000 people T 3301-3303 3386-3370 See also Peter Bouckaert T 5516 Jaqup Krasniqi T 3368-3370 3305-3306 Exhibit P141 Sylejman Selimi T 2067 2198 Rexhep Selimi T 6592 Ruzhdi Karpuzi T 3223 Fadil Kastrati T 2590 2622 Jan Kickert T 720 Peter Boukaert T 5516-5517 Shukri Buja T 3734-3735 Fatmir Limaj T 5901-5903 Fatmir Limaj T 5908-5909 5919 Shukri Buja T 3738-3739 Fatmir Limaj T 5907 Shukri Buja T 3739-3740 20 Case No type Case # type date fighting in the Prekazi Prekaze area was continuing and which in their understanding was the only place where they could join the KLA 145 Many other Kosovo Albanians living abroad were also returning to Kosovo at the time 146 52 The events that occurred in the area of Drenica in February and March 1998 marked a new stage in the development of the conflict in Kosovo After the attacks in Drenica the Serbian forces began using typical military style equipment and tactics 147 The fighting between Serbian forces and the KLA intensified and covered wider geographic areas 148 B Development of the KLA units in various regions of Kosovo 53 After their arrival in Kosovo in March 1998 members of the KLA including Shukri Buja Fatmir Limaj Hashim Thaci Fehmi Lladrovci and Agim Bajrami met in Tice Tica and discussed the organisation of the KLA Shukri Buja asked to be sent to the Lipjan Lipljan and Shtime Stimlje municipalities which he knew best 149 Agim Bajrami settled in Kacanik Kacanik and Fatmir Limaj in Malisheve Malisevo 150 Shukri Buja decided to start organising a guerrilla movement from Mollopolc Malopoljce in the Shtime Stimlje municipality He stayed there throughout March and April 1998 151 After his return to Kosovo Ramiz Qeriqi undertook the organisation of a unit in Kroimire Krajmirovce 152 Ismet Jashari aka Kumanova was asked to organise a KLA unit in Suhareke Suva Reka 153 In the evidence of Shukri Buja Ismet Jashari was later based in Luzhnice Luznica and Klecke Klecka 154 Agim Bajrami was organising a unit in the municipality of Kacanik Kacanik 155 In April 1998 Shukri Buja went to Ferizaj Urosevac to help Imri Llazi to organise a guerrilla unit in the Ferizaj Urosevac municipality 156 In May 1998 the process of setting up the Shtime Stimlje guerrilla unit was completed 157 54 In May 1998 Ramiz Qeriqi was organising people in the area of Kroimire Krajmirovce He had soldiers at fighting points in Carraleve Crnoljevo Zborc Zborce Fushtice Fustica and Blinaje Lipovica 145 146 147 148 149 150 151 152 153 154 155 156 157 158 There were barracks in Pjetershtice Petrastica 158 Ramadan Behluli was in Fatmir Limaj T 5910-5911 Shukri Buja T 3739-3741 Peter Boukaert T 5516-5517 Peter Boukaert T 5516-5517 Shukri Buja T 3746-3749 3751-3752 For the location of various places referred to in this section see Annexes II and III Shukri Buja T 4092-4093 Rexhep Selimi T 6593-6594 Shukri Buja T 3756 3761 Ramiz Qeriqi T 3563 3565-3566 Shukri Buja T 3812 Shukri Buja T 3928 Shukri Buja T 3794 3812 Shukri Buja T 3768-3769 Shukri Buja T 3768-3769 3772 Shukri Buja T 3777 Ramiz Qeriqi T 3577 21 Case No type Case # type date charge of six soldiers in Pjetershtice Petrastica 159 KLA members were digging trenches on the main road from Carraleve Crnoljevo to Pjetershtice Petrastica and building bunkers 160 They were admitting new soldiers By the beginning of June 1998 there were about 70 to 100 KLA members in the area of Kroimire Krajmirovce 161 In the end of May 1998 the unit in Kroimire Krajmirovce was named “Sokoli” or “Petriti” 162 Shukri Buja testified that in June 1998 after the creation of that unit a number of people wanted to join the KLA which led to the setting up of another unit in Pjetershtice Petrastica covering also the area of Zborc Zborce 163 The number of soldiers under Ramadan Behluli’s command increased to 17 by 17 June 1998 164 At the end of May 1998 Shukri Buja took over the command of the area of Kroimire Krajmirovce 165 Ramiz Qeriqi became his deputy 166 In June 1998 KLA units were established also in Fushtice Fustica and Blinaje Lipovica 167 Further as described later in this decision a number of units were formed in the area of Llapushnik Lapusnik 168 55 Sylejman Selimi testified that at the end of May 1998 he was appointed commander of the st 1 operational zone the Drenica zone 169 He was based in Likofc Likovac 170 From May 1998 onwards the number of soldiers under Sylejman Selimi’s command increased from around 200-300 to over a thousand by the end of 1998 171 Rexhep Selimi stated that the Drenica operational zone was more advanced than other zones The manner in which it was structured became a model for structuring other zones 172 56 The forming of the KLA structure appears to have been a slow process which was affected by factors independent of the local leaders There were difficulties moving from one area to another because of the rugged terrain 173 The KLA had insufficient weapons Not every soldier had a weapon 174 Shukri Buja was tasked to organise a supply line of weapons from Albania to Kosovo to the municipalities of Kacanik Kacanik Lipjan Lipljan Shtime Stimlje and Ferizaj Urosevac 175 The development of the KLA structure was also influenced by armed confrontations with the 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 Ramadan Behluli T 2659-2660 Ramadan Behluli T 2661-2663 Ramiz Qeriqi T 3575 Ramiz Qeriqi T 3575 Shukri Buja T 3777-3778 Shukri Buja T 3777-3781 Ramadan Behluli T 2659-2660 2666 Ramiz Qeriqi T 3578 Ramadan Behluli T 2667 Shukri Buja T 3789 See infra para 702 Sylejman Selimi T 2070-2072 The terms “zone” and “subzone” are used interchangeably in this decision reflecting the actual evidence Jakup Krasniqi stated that these two terms mean the same T 3479 Sylejman Selimi T 2072-2075 Sylejman Selimi T 2075-2076 Rexhep Selimi T 6691 Shukri Buja T 3769-3772 Sylejman Selimi T 2188 22 Case No type Case # type date Serbian forces 176 A battle took place on 9 May 1998 in the area of Llapushnik Lapusnik 177 On 29 May 1998 the KLA again fought against Serbian forces in Llapushnik Lapusnik 178 On 14 17 and 23 June 1998 there were clashes between the belligerent forces in Carraleve Crnoljevo 179 57 Bislim Zyrapi testified that in mid June preparations for the structuring of the Pashtrik Pastrik zone began 180 Shukri Buja and Jakup Krasniqi stated that the zone was created in July 1998 181 In his evidence the Accused Fatmir Limaj acknowledged that the Pashtrik Pastrik zone existed in early July 1998 182 However a KLA communiqué in May 1998 had mentioned the Pashtrik Pastrik “operational subzone” 183 Rexhep Selimi sought to explain this by distinguishing the term “operational subzone” from “zone” He explained that the term “operational subzone” was then used by the KLA in relation to a guerrilla body composed of small groups operating in various zones 184 If this explanation is reliable the mention in the communiqué may be unrelated to a later and more developed Pashtrik Pastrik “zone” described by other witnesses Rexhep Selimi placed the structuring of the Pashtrik Pastrik zone as beginning in August 1998 185 This is not consistent with the other evidence relating to this issue In his testimony Rexhep Selimi appears to link the structuring of zones with the creation of brigades 186 However other evidence indicates that these two processes were distinct brigades having been created later than operational zones 187 For this reason the Chamber does not accept the evidence of Rexhep Selimi that the structuring of this zone did not commence until August 1998 58 Fatmir Limaj and Shukri Buja stated that Muse Jashari was appointed initial commander of the Pashtrik Pastrik zone 188 It was also the testimony of Jakup Krasniqi and Rexhep Selimi that Muse Jashari was the commander of that zone before being replaced by Ekrem Rexha and later Tahir Sinani 189 Jakup Krasniqi specified that Muse Jashari commanded the Pashtrik Pastrik zone between July and November 1998 190 During a pre-trial interview Ramadan Behluli had made it clear that Fatmir Limaj was the commander of the Pashtrik Pastrik zone 191 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 However when Shukri Buja T 3773-3774 Rexhep Selimi T 6594-6595 See infra paras 76 and 77 Ramiz Qeriqi T 3573 See infra paras 156 and 157 Bislim Zyrapi T 6825 Shukri Buja T 3989 Jakup Krasniqi T 3479-3482 Fatmir Limaj T 5963 Exhibit P49 English translation - Exhibit P48 p U0038573 Rexhep Selimi T 6651-6652 Rexhep Selimi T 6687-6688 Rexhep Selimi T 6599 6601-6602 See infra para 64 Fatmir Limaj T 5963 Shukri Buja T 4097 Jakup Krasniqi T 3479-3482 Rexhep Selimi T 6687-6688 Jakup Krasniqi T 3479-3482 Exhibit P121 p 22-23 23 Case No type Case # type date questioned about this in his evidence Behluli specifically denied knowing that this was so in June and July 1998 192 L95 stated that when he met Fatmir Limaj in Novoselle Novo Selo he knew that Limaj was the commander of a zone the territory of which as described by the witness corresponds roughly with at least parts of the Pashtrik Pastrik zone 193 The meeting took place according to the evidence of both L95 and Fatmir Limaj at the end of July 1998 194 For reasons detailed later 195 it is apparent that L95’s knowledge in this respect was quite limited His evidence does not therefore displace the consistent evidence that Muse Jashari was the commander of the Pashtrik Pastrik zone 59 Shukri Buja testified that in early July 1998 there were three subzones Pashtrik Pastrik Nerodime Nerodimlje and Drenica 196 After a meeting with Jakup Krasniqi on 20 June 1998 Shukri Buja began organising the operational subzone of Nerodime Nerodimlje 197 On 6 July 1998 he became the commander of that subzone which covered the municipalities of Shtime Stimlje Lipjan Lipljan Ferizaj Urosevac and Kacanik Kacanik 198 Shukri Buja stated that in July 1998 the subzones of Pashtrik Pastrik and Nerodime Nerodimlje were on both sides of the Berishe Berisa Mountains 199 The municipality of Lipjan Lipljan was divided between those two zones 200 60 In the testimony of Shukri Buja and Sylejman Selimi a part of the division line between the subzones of Drenica and Pashtrik Pastrik went along the Peje Pec – Prishtine Pristina highway 201 Ramadan Behluli drew on a map the boundaries of his zone which as he explained reflected the situation after August 1998 The boundary drawn by Ramadan Behluli in the area of Llapushnik Lapusnik goes along the Peje Pec – Prishtine Pristina highway 202 L95 testified although not without hesitation that the northern border of the zone the headquarters of which was located in Klecke Klecka ran along the road to Prishtine Pristina between Arlat Orlate and Komoran Komorane 203 Bislim Zyrapi testified that Llapushnik Lapusnik was at some point in the Pashtrik Pastrik zone However he made it clear that his knowledge about the organisation of units in that area was limited 204 The compound in Llapushnik Lapusnik at which according to the 192 Ramadan Behluli T 2770-2771 L95 T 4217-4218 4286-4287 194 L95 T 4203-4212 195 See infra para 593 196 Shukri Buja T 3797 197 Shukri Buja T 3795-3796 198 Shukri Buja T 3798 Ramiz Qeriqi T 3594 Jakup Krasniqi T 3479-3482 199 Shukri Buja T 3988 200 Shukri Buja T 4153-4155 201 Shukri Buja T 4153-4155 Sylejman Selimi T 2148-2150 202 Ramadan Behluli T 2682-2684 Exhibit P119 203 L95 T 4220-4221 204 Bislim Zyrapi T 6834-6835 193 24 Case No type Case # type date Indictment the prison camp operated was located south of that highway 205 The evidence of these witnesses would thus indicate that the camp was in the Pashtrik Pastrik zone There is however evidence pointing towards a different zone Jakup Krasniqi specifically refuted the contention that Llapushnik Lapusnik was in the Pashtrik Pastrik zone He stated that the entire municipality of Gllogoc Glogovac including Llapushnik Lapusnik was in the Drenica operational zone 206 Fatmir Limaj confirmed and pointed out that the borders of zones corresponded with the borders of municipalities 207 Shukri Buja also testified that that the zones were organised according to municipalities and each municipality had units 208 It is to be noted however that Shukri Buja himself gave an example of a border between two zones which did not go along the boundaries of a municipality but divided the municipality of Lipjan Lipljan 209 Further zones clearly do not correspond with municipalities on a map created in 1998 by the Ministry of Defence of the United Kingdom the general accuracy of which was accepted by Sylejman Selimi 210 61 There is an abundance of evidence to the effect that a boundary between areas of responsibility of various units went along the Peje Pec – Prishtine Pristina highway 211 This is not however indicative of there being a zone border going along the highway as the units on both sides of the road might have been in the same zone It is not unlikely that at some point in time the border between the Pashtrik Pastrik zone and the Drenica zone did go along that highway Nonetheless the evidence is too scarce and contradictory for a definite finding to be made In addition as demonstrated the structure of the KLA was at the time in the process of formation which makes it particularly difficult to precisely delineate the territorial division of responsibility at various stages of the development of the structure In support of their contention that the border went along the highway the Prosecution makes reference to an oath ceremony in Llapushnik Lapusnik attended by Muse Jashari the first commander of the Pashtrik Pastrik zone 212 However there is nothing to suggest that only commanders from the same zone would have attended to such a ceremony 62 An offensive by Serbian military and police forces against KLA units to regain control of territory “occupied” by the KLA was initiated during the summer of 1998 On 19 July 1998 the KLA fought against the Serbian forces at Rahovec Orahovac 213 Subsequently the town of Rahovec Orahovac became the first town that the KLA took under its control although for a brief 205 206 207 208 209 210 211 212 Exhibit P4 image 8 Ole Lehtinen T 461-463 Jakup Krasniqi T 3341-3345 3471-3475 3488-3491 Fatmir Limaj T 5964-5967 6575-6576 Exhibit DL7 Shukri Buja T 3796 See the preceding paragraph Exhibit 1 map 10 Sylejman Selimi T 2178-2179 Exhibit 1 map 4 Jakup Krasniqi T 3403-3404 L64 T 4378-4385 Exhibit P170 Prosecution Final Brief footnote 143 25 Case No type Case # type date period as it was quickly retaken 214 Another battle between the KLA and Serbian forces took place on 25 and 26 July 1998 once again in the area of Llapushnik Lapusnik 215 At the same time on 25 July 1998 KLA soldiers under the command of Ramiz Qeriqi defended Carraleve Crnoljevo from another Serbian offensive Eventually the Serbians stopped at Zborc Zborce 216 The advancement of the Serbian offensive in the summer of 1998 made a large number of people flee from their places of residence The displacement began in the middle of July 1998 especially in Rahovec Orahovac In the villages of Kizhareke Kisna Reka Nekoc Nekovce Bajice Banjica Shale Sedlare and Kroimire Krajmirovice there were about sixty or seventy thousand of displaced people 217 Human Rights Watch estimated that at least 300 000 people were displaced in that period in Kosovo 218 63 By the end of August 1998 there were seven KLA zones 219 The Pashtrik Pastrik zone comprised the municipalities of Malisheve Malisevo Rahovec Orahovac Prizren Prizren Sharri the former Dragash Gora and Suhareke Suva Reka 220 The Dukagjin zone comprised the municipalities of Istog Istok Peje Pec Deçane Decani and Gjurakovc urakovac as well as part of the Kline Klina municipality It was commanded by Ramush Haradinaj 221 The other zones were the Nerodime Nerodimlje Shala Llap and Karadak zones 222 64 After the offensive of 25 and 26 July 1998 brigades and battalions were formed 223 As a zone commander 224 Sylejman Selimi was charged with establishing the brigades in Drenica from the pre-existing points and units He established the 111th Brigade operating in Likofc Likovac as well as the 112th 113th and 114th Brigades 225 The 121st Brigade was formed sometime in August 1998 226 Fatmir Limaj stated that a proposal to that effect was made already on 6 August 1998 Its implementation was however suspended for twenty days because of an offensive launched by the Serbian forces 227 Similarly Ramadan Behluli testified that the 121st Brigade was created after the death of Kumanova at the end of August 1998 228 Rexhep Selimi stated that it took place at the end 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 L64 T 4533-4534 Peter Boukaert T 5578 Jakup Krasniqi T 3415-3417 3486-3488 See infra paras 78-82 Ramadan Behluli T 2818-2821 Jakup Krasniqi T 3482-3484 Exhibit P212 tab 3 p 16 Peter Bouckaert T 5582 Jakup Krasniqi T 3468-3470 Jakup Krasniqi T 3479-3482 Jakup Krasniqi T 3479-3482 Jakup Krasniqi T 3479-3482 Ramiz Qeriqi T 3692 Bislim Zyrapi T 6824 Jakup Krasniqi T 3479-3482 Sylejman Selimi T 2076-2078 Rexhep Selimi T 6601-6602 Shukri Buja T 3989 Bislim Zyrapi T 6831-6832 Fatmir Limaj T 6012 6014-6017 6088 Ramadan Behluli T 2765-2766 26 Case No type Case # type date of August or in September 229 There is however a KLA letter of appointment of Ramiz Qeriqi “pursuant to the decision of the command of 121st Brigade” which is dated 16 August 1998 230 This demonstrates in the finding of the Chamber that the brigade existed already by 16 August 1998 In any event as the exact date of the creation of the 121st Brigade is of little relevance to the charges against the Accused it suffices to conclude that this occurred in the second half of August 1998 The 121st Brigade was within the Pashtrik Pastrik subzone 231 In the testimony of Jakup Krasniqi the territory within the bounds of the 121st Brigade was not identical to the subzones before August 1998 232 The fighting point in Kroimire Krajmirovice became the Ruzhdi Selihu battalion which was part of the 121st Brigade 233 Ramiz Qeriqi was appointed commander of that battalion 234 Within the Pashtrik Pastrik operational zone apart from the 121st Brigade the 122nd to 127th Brigades were also formed The Dukagjin zone had the 131st to 138th Brigades the Shale zone had the 141st and 142nd Brigades The Llap zone had the 151st to 153rd Brigades st nd The st Nerodime Nerodimlje zone had the 161 and 162 Brigades The Karadak zone had the 171 and 172nd Brigades 235 65 While the formation of Brigades and Battalions at various times in the second half of 1998 represents a further and significant stage in the progressive development of a more formalised and more typical military type structure by the KLA it should not be imagined that they were descriptive of a body of soldiers of the numerical strengths typically to be found in Brigades and Battalions respectively of modern European armies Many KLA Brigades and Battalions when first formed were little more than a shell to which soldiers were recruited or transferred at various times typically they comprised the existing KLA points in a given area The rate of their growth in numbers of men appears to have varied considerably from place to place C Taking of Llapushnik Lapusnik by the KLA in May 1998 66 The village of Llapushnik Lapusnik is located in Gllogovc Glogovac municipality in central Kosovo It lies in a gorge on both sides of the Peje Pec-Prishtina Pristina highway which is one of the main roads connecting Prishtina Pristina with the western parts of Kosovo and with Albania The Llapushnik Lapusnik gorge was of strategic importance for the KLA having control over the gorge provided the KLA with a corridor for the transportation of weapons and supplies from 229 230 231 232 233 234 235 Rexhep Selimi T 6674 Exhibit P155 Ramiz Qeriqi T 3593 Shukri Buja T 4152-4153 Jakup Krasniqi T 3488 Ramadan Behluli T 2891-2892 Ramiz Qeriqi T 3593 3668 Exhibit P155 Rexhep Selimi T 6601-6602 27 Case No type Case # type date Albania and also enabled the free movement of citizens and soldiers 236 The Llapushnik Lapusnik gorge was also strategically important for the Serbian forces as it provided access to the villages bordering the Drenica zone 237 as well as for preventing the KLA having the significant advantages just identified 67 On 9 May 1998 Serbian forces attacked the villages in the Llapushnik Lapusnik gorge including Llapushnik Lapusnik Komaran Komorane and Krekova 238 At about 0800 hours on 9 May 1998 Serbian police forces took positions at Gradines Guri 239 a rock at Llapushnik Lapusnik located south of the Peje Pec-Prishtina Pristina road and at the village school from where they opened fire 240 While the evidence is inconsistent as to the precise weapons used in the battle it is clear from those present that the Serbian forces were far better equipped241 and significantly outnumbered the KLA in the vicinity 68 The fact of fighting in Llapushnik Lapusnik soon became known in the nearby villages Ruzhdi Karpuzi testified that on 8 May 1998 all other evidence indicates it was 9 May from the village of Shale Sedlare located some nine km away from Llapushnik Lapusnik he heard shots he thought coming from the direction of Komaran Komorane and Nekoc Nekovce He went there and saw that fighting was taking place at Llapushnik Lapusnik 242 Ruzhdi Karpuzi went to the vicinity of the village of Kizhareke Kisna Reka and from there took a route through the mountain to Llapushnik Lapusnik On his way he met five KLA members including Ymer Alushani aka Voglushi a KLA commander243 from Komaran Komorane Enver Mulaku and Ramadan Zogu who were fighting the Serbian forces 244 Ruzhdi Karpuzi decided to join them and fought together with them on the Peje Pec-Prishtina Pristina road 245 69 Elmi Sopi said that on 9 May 1998 at about 1100 hours Ymer Alushani arrived at Llapushnik Lapusnik with a group of seven or eight KLA soldiers Elmi Sopi explained to him 236 237 238 239 240 241 242 243 244 245 Sylejman Selimi T 2091-2095 2147 Bislim Zyrapi testified that Llapusnik Lapusnik was an important position for the KLA because the Llapusnik Lapusnik gorge was a place from where the Pristina-Peje road could be blocked T 6856 See also Bislim Zyrapi T 6858 Exhibit P44 an interview with Fatmir Limaj states “The maintaining of the strait of Lapusnik for our army and people has had special significance because this strait increased the importance of our army This strait made it possible to transport the people and to arm them on a massive level and it became the organic linking point for the liberated territories Sylejman Selimi T 2091-2095 T 2150-2152 Sylejman Selimi T 2091 See also L64 T 4345 Elmi Sopi T 6720-6721 Elmi Sopi T 6720-6721 On Elmi Sopi’s evidence a helicopter of the Serbian forces was flying above the village T 6721 while others testified that during the battle at Llapushnik the Serbian forces used artillery and other heavy weapon Ruzhdi Karpuzi T 3064 Fadil Kastrati T 2594 Ramiz Qeriqi T 3569-3571 Ruzhdi Karpuzi T 3062-3063 3225 L64 testified that Ymer Alushani was the commander of the Zjarri unit T 4335 Ruzhdi Karpuzi T 3063-3065 Ruzhdi Karpuzi T 3063-3065 28 Case No type Case # type date what was happening and directed the group to the house of Haxhi Gashi where some young men from the village who had hunting guns were gathered 246 About an hour later a group of 16 soldiers descended from the mountains and Elmi Sopi’s brother led them to the same house from where the soldiers were led to the positions of the Serbian forces 247 Elmi Sopi further testified that at about 1300 hours he heard a noise and saw black smoke rising after which he saw the Serbian forces withdrawing towards Komaran Komorane 248 He then went to the site where the fighting was and saw that a Serbian police “Pinzgauer” an armoured personnel carrier with a lot of ammunition was in flames 249 70 Ramiz Qeriqi250 and Fatmir Limaj251 also testified that on 9 May 1998 during the battle at Llapushnik Lapusnik they saw Ymer Alushani leading a group of 5-7 men who fought the Serbian forces on the Peje Pec-Prishtina Pristina 71 It was the evidence of Fadil Kastrati that on 9 May 1998 he was in his home village of Blinaje Lipovica near Vershec Vrsevce 252 when he and some other men from his village were called to the house of Ymer Alushani253 in Komaran Komorane Fadil Kastrati and his friends went on foot from Blinaje Lipovica to Leletiq Laletic a little further from there they met Ymer Alushani with a group of men and continued together with them to Llapushnik Lapusnik by car 254 They arrived in Llapushnik Lapusnik just before dusk and took positions at the rock located on the south side of the Peje Pec-Prishtina Pristina road where earlier that day the Serbian forces had been situated 255 72 The evidence of L64 describes similar events In the afternoon of 9 May 1998 he was told that Ymer Alushani wanted him to go to Llapushnik Lapusnik as fast as he could At dusk L64 arrived at Ymer Alushani’s house in Komaran Komorane Ymer himself arrived later explained to L64 and other KLA soldiers who had gathered there that Serbian forces had attacked the villages in the Llapushnik Lapusnik gorge that he had gone there with some comrades upon hearing the first shots and that there had been fighting that continued until late in the afternoon Ymer Alushani also told them to go to Llapushnik Lapusnik before daylight 256 L64 and the others set off on foot at about 0200 hours on 10 May 1998 and took positions at Big Guri the rock situated on the south 246 247 248 249 250 251 252 253 254 255 Elmi Sopi T 6721 Elmi Sopi T 6721-6722 Elmi Sopi T 6722 Elmi Sopi T 6722 Ramiz Qeriqi T 3569-3571 Fatmir Limaj T 5940 Fadil Kastrati T 2631-2632 Fadil Kastrati T 2591-2592 Fadil Kastrati T 2632 Fadil Kastrati T 2592-2593 29 Case No type Case # type date side of the Peje Pec-Prishtina Pristina road 257 They waited there until midday on 10 May 1998 Serbian forces had not returned L64 went to check the situation in Komaran Komorane 258 73 In addition to the men who fought together with Ymer Alushani other KLA members also came to assist in the battle at Llapushnik Lapusnik Ramiz Qeriqi testified that on 9 May 1998 from Klecke Klecka he heard the sound of shots being fired coming from Llapushnik Lapusnik and decided to go there to assist in the fight 259 Three groups each comprised of five KLA members left from Klecke Klecka to Llapushnik Lapusnik 260 Fatmir Limaj Ramiz Qeriqi and Topi each led one of the three groups 261 The group led by Fatmir Limaj left first When the other two groups arrived at Llapushnik Lapusnik about 20 minutes after the group of Fatmir Limaj the fighting was about to finish A Serbian Pinzgauer was in flames 262 Ramiz Qeriqi believed that the greatest success was scored by the KLA Pellumbi unit situated on the northern side of the Peje PecPrishtina Pristina road 263 74 The Accused Fatmir Limaj testified that on 9 May 1998 from Klecke Klecka he intercepted radio communications between KLA members and as the dialogue was incomprehensive decided to find out what was going on 264 Together with the Accused Isak Musliu Sadik Shala Nexhim Shalaand and Bardhi Fatmir Limaj drove up to the Berishe Berisa Mountains from where they saw several Serbian vehicles approaching the KLA forces at the village of Gjurgjice which was situated next to Orlate They also saw Serbian police forces firing from the northern side of the Peje PecPrishtina Pristina road 265 Fatmir Limaj and his group decided to join the fighting and leaving one of them to coordinate radio communications they went down to the main road close to the place where the KLA members were fighting They opened fire and shot at a Serbian Pinzgauer which appeared to be loaded with ammunition The Pinzgauer exploded and the Serbian forces withdrew in the direction of Drenica and Komaran Komorane 266 75 The KLA were successful in resisting the Serbian attack at Llapushnik Lapusnik on 9 May 1998 and the Serbian forces withdrew to their previously held positions in Komaran Komorane 267 On Fatmir Limaj’s evidence after the departure of the Serbian forces he 256 257 258 259 260 261 262 263 264 265 266 267 L64 T 4344-4345 L64 T 4349-4350 L64 T 4350 Ramiz Qeriqi T 3568 Ramiz Qeriqi T 3568 Ramiz Qeriqi T 3568 Ramiz Qeriqi T 3568-3569 Ramiz Qeriqi T 3568-3571 Fatmir Limaj T 5936 Fatmir Limaj T 5936-5937 6075 Fatmir Limaj T 5937-5938 Ramiz Qeriqi T 3571 30 Case No type Case # type date and his group met the soldiers led by Ymer Alushani who had been fighting on the GjurgjiceLlapushnik road and then returned to Klecke Klecka 268 The following day Ymer Alushani came to Klecke Klecka together with two civilians and told Fatmir Limaj that the civilians in Llapushnik Lapusnik were afraid that the Serbian forces would return and wanted them to go back to the village 269 A group of KLA members went there voluntarily and a small unit was stationed in Llapushnik Lapusnik 270 This evidence is consistent with the evidence of Elmi Sopi who testified that after the withdrawal of the Serbian forces from Llapushnik Lapusnik the KLA soldiers wanted to leave but the people from Llapushnik Lapusnik asked them to stay to protect them and offered to provide housing for them 271 Ymer Alushani discussed this with his friends and soldiers were placed in the houses in Llapushnik Lapusnik 272 76 While there are some inconsistencies in the evidence discussed above inconsistencies primarily related to the time or the precise location of the described events in the Chamber’s view the following has been established with respect to the taking of Llapushnik Lapusnik by the KLA forces In the morning of 9 May 1998 Serbian forces entered the Llapushnik Lapusnik gorge An exchange of fire between the Serbian forces and the KLA fighters and people of Llapushnik Lapusnik broke out At the sound of the shots Ymer Alushani from the nearby village of Komaran Komorane sent people to other neighbouring villages to bring men who had joined or were willing to join the KLA Together with small KLA force from Komaran Komorane they went to Llapushnik Lapusnik They took positions at the Peje Pec-Prishtina Pristina road and fought the Serbian forces there Klecke Klecka Meanwhile information about the fighting reached KLA forces in Fatmir Limaj together with a total of about 15 men responded in Llapushnik Lapusnik and joined the fight against the Serbian forces In the early afternoon the Serbian Pinzgauer located in the middle of the village was hit and exploded This appears to have caused the Serbian forces to withdraw In the afternoon and the evening of 9 May 1998 more KLA fighters came to Llapushnik Lapusnik Following these events at the request of the people in Llapushnik Lapusnik village KLA soldiers were positioned there and accommodated in various private houses in the village 77 Immediately the KLA soldiers started to dig trenches and make other fortifications in Llapushnik Lapusnik village 273 The trenches were built at night with the help of some young 268 269 270 271 272 273 Fatmir Limaj T 5940 Fatmir Limaj T 5940-5941 Fatmir Limaj T 5941 Elmi Sopi T 6722-6723 Elmi Sopi T 6722-6723 Ruzhdi Karpuzi T 3068-3069 Elmi Sopi T 6723-6725 31 Case No type Case # type date people from the village 274 The body of evidence establishes that from that time the KLA remained in Llapushnik Lapusnik until 25 or 26 July 1998 when Serbian forces drove them from the village In that period the strength of the KLA forces in the village and its vicinity grew considerably D The fall of Llapushnik Lapusnik in July 1998 78 The KLA lost control of Llapushnik Lapusnik in a battle with Serbian forces which took place on 25 and 26 July 1998 In the evening of Friday 24 July 1998 Serbian forces approached Llapushnik Lapusnik on the Peje Pec-Prishtina Pristina road arriving from the direction of Prishtina Pristina 275 Elmi Sopi testified that at about 0400 hours on 25 July 1998 he received a phone call from a friend who informed him that a convoy of Serbian tanks and machinery was moving on the Peje Pec-Prishtina Pristina road The convoy had stopped at the checkpoint in Komaran Komorane 276 Other Serbian forces positioned at Quake Komoranit at the antenna of Radio Prishtina Pristina in Komaran Komorane and at the chicken farm in Krajkove Krajkovo also had set off towards the Llapsuhnik Lapusnik gorge 277 79 In the early morning of 25 July 1998 the Serbian forces opened fire on the KLA positions in Llapsuhnik Lapusnik 278 The Serbian forces were equipped with “Katyusha” rockets and 220 mm cannons 279 About 140 Serbian tanks were involved in the operation 280 Special MUP units two detachments of 200 men each and an anti-terrorist unit participated in the Serbian offensive at Llapushnik Lapusnik 281 Some evidence suggests that surface-to-surface rockets mine launchers and “chemical poisons” were also used in the Serbian offensive at Llapushnik Lapusnik 282 The KLA forces were equipped with 60 mm 82 mm as well as some 150 mm mortars 283 They also made use of the trenches and other fortifications that had been built in the village earlier 284 80 The fighting continued the entire day of 25 July and on 26 July 1998 In the evening of 25 July 1998 the Serbian forces moved closer and the KLA started to withdraw 285 The Serbian tanks were firing at the KLA positions The KLA responded with mortar fire At least on one 274 275 276 277 278 279 280 281 282 283 284 285 Elmi Sopi T 6725 6733 Ruzhdi Karpuzi T 3211-3213 Elmi Sopi T 6736 Elmi Sopi T 6736 Elmi Sopi T 6736 L64 T 4551-4552 Dr Zeqir Gashi T 5632 Elmi Sopi T 6736 Elmi Sopi T 6736 Exhibit P44 and Ole Lehtinen T 576-579 Elmi Sopi T 6736 Exhibit P44 and Ole Lehtinen T 576-579 Philip Coo T 5734-5736 Ruzhdi Karpuzi testified that the Serbian forces used blue shells which made the soldiers drowsy T 3221-3223 See also Exhibit P44 Ole Lehtinen T 576-579 Philip Coo T 5734-5736 Elmi Sopi T 6736-6737 Philip Coo T 5734-5736 See also supra para 77 Ruzhdi Karpuzi T 3211-3213 Elmi Sopi T 6736 32 Case No type Case # type date occasion the KLA managed to hit a Serbian tank 286 However the KLA forces were unable to stand-up to the strength of the Serbian attack and on 26 July all KLA forces withdrew from Llapushnik Lapusnik 287 Ymer Alushani a KLA leader was killed in this battle 288 81 In addition on 26 July 1998 virtually the entire population of Llapushnik Lapusnik moved from the gorge to the Berishe Berisa Mountains especially to the villages of Negroc Negrovce Arlat Orlate and Terpeze Trpeza 289 Zeqir Gashi testified that he and the nurses working at his clinic fled to the village of Berishe Berisa and from there to the village of Fshati-i-Ri Novosel 290 On Elmi Sopi’s evidence only some old people who could not leave remained in their houses where later they were killed by the Serbian forces 291 82 The Chamber will discuss the ramifications of the fall of Llapushnik Lapusnik for the individuals detained at the prison compound later in this decision 292 286 287 288 289 290 291 292 Ruzhdi Karpuzi T 3213-3214 Elmi Sopi T 6736 Ruzhdi Karpuzi T 3214 L64 T 4553 Dr Zeqir Gashi T 5635 L64 T 4555-4556 Fatmir Limaj T 5989 Elmi Sopi T 6736 6761-6762 Dr Zeqir Gashi T 5632-5635 Elmi Sopi T 6761-6762 See infra paras 447-507 33 Case No type Case # type date IV JURISDICTION UNDER ARTICLES 3 AND 5 OF THE STATUTE A Jurisdiction under Article 3 1 The existence of an armed conflict and nexus a Law 83 In order for the Tribunal to have jurisdiction over crimes punishable under Article 3 of the Statute two preliminary requirements must be satisfied There must be an armed conflict whether international or internal at the time material to the Indictment and the acts of the accused must be closely related to this armed conflict 293 84 The test for determining the existence of an armed conflict was set out in the Tadi Jurisdiction Decision and has been applied consistently by the Tribunal since An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State 294 Under this test in establishing the existence of an armed conflict of an internal character the Chamber must assess two criteria i the intensity of the conflict and ii the organisation of the parties 295 These criteria are used “solely for the purpose as a minimum of distinguishing an armed conflict from banditry unorganized and short-lived insurrections or terrorist activities which are not subject to international humanitarian law ”296 The geographic and temporal framework of this test is also settled jurisprudence crimes committed anywhere in the territory under the control of a party to a conflict until a peaceful settlement of the conflict is achieved fall within the jurisdiction of the Tribunal 297 85 The Defence submit that in determining the existence of an armed conflict for the purposes of the Tribunal’s jurisdiction the Chamber may consider the insurgents’ control over a determinate territory the government’s use of army against the insurgents the insurgents’ status as belligerents and whether the insurgents have a State-like organisation and authority to observe the rules of 293 294 295 296 297 Tadi Jurisdiction Decision paras 67 70 Tadi Trial Judgement paras 562 572 Kunarac Appeals Judgement para 55 See also elebi i Trial Judgement paras 184-185 Krnojelac Trial Judgement para 51 Naletili Trial Judgement para 225 Tadi Jurisdiction Decision para 70 See also Tadić Trial Judgement paras 561-571 Aleksovski Trial Judgement paras 43-44 elebići Trial Judgement paras 182-192 Furundžija Trial Judgement para 59 Blaškić Trial Judgement paras 63-64 Kordić Judgement para 24 Krstić Judgement para 481 Staki Trial Judgement para 568 See Tadi Trial Judgement para 562 Tadi Trial Judgement para 562 Tadi Jurisdiction Decision para 70 Kunarac Appeals Judgement para 57 34 Case No type Case # type date war 298 This submission draws on the International Committee of the Red Cross “ICRC” Commentary to Common Article 3 of the Geneva Conventions which is the basis for the charges brought under Article 3 of the Statute In the relevant part the Commentary lists different conditions for the application of Common Article 3 which were discussed at the Diplomatic Conference for the Geneva Conventions The Commentary explicitly clarifies however that this list is “in no way obligatory” and is suggested merely as “convenient criteria” to distinguish a genuine armed conflict from an act of banditry or an unauthorised or short-lived insurrection 299 It further states Does this mean that Article 3 is not applicable in cases where armed strife breaks out in a country but does not fulfil any of the above conditions which are not obligatory and are only mentioned as an indication We do not subscribe to this view We think on the contrary that the Article should be applied as widely as possible 300 86 The drafting history of Common Article 3 provides further guidance Several proposed drafts of what later became known as Common Article 3 sought to make its application dependant inter alia on conditions such as an explicit recognition of the insurgents by the de jure government the admission of the dispute to the agenda of the Security Council or the General Assembly of the United Nations the existence of the insurgents’ State-like organisation and civil authority exercising de facto authority over persons in determinate territory 301 However none of these conditions was included in the final version of Common Article 3 which was actually agreed by the States Parties at the Diplomatic Conference This provides a clear indication that no such explicit requirements for the application of Common Article 3 were intended by the drafters of the Geneva Conventions 87 The Chamber is also conscious of Article 8 of the Statute of the International Criminal Court ICC which inter alia defines for its purposes war crimes committed in an armed conflict not of an international character Article 8 paragraph 2 f of the ICC Statute adopts a test similar to the 298 299 300 301 Defence Final Brief paras 205-207 ICRC Commentary to Geneva Convention I pp 49-50 ICRC Commentary to Geneva Convention I p 50 Thus the Australian amendment tended to apply the relevant provision only if “ a the de jure government had recognized the insurgents as belligerents or b the de jure government had claimed for itself the rights of a belligerent c the de jure government has accorded the insurgents recognition as belligerents for the purposes only of the present Convention or d the dispute had been admitted to the agenda of the Security Council or the General Assembly of the United Nations as being a threat to international peace a breach of the peace or an act of aggression ” The Delegation of the United States of America made the following proposal with respect to the applicability of what latter became Common Article 3 “- that the insurgents must have an organization purporting to have the characteristics of a State - that the insurgent civil authority must exercise de facto authority over persons within a determinate territory - that the armed force must act under the direction of the organized civil authority and be prepared to observe the ordinary laws of war - that the insurgent civil authority must agree to be bound by the provisions of the Convention ” Final Record of the Diplomatic Conference Convened by the Swiss Federal Council for the Establishment of International Conventions for the Protection of War Victims and Held at Geneva from April 21st to August 12th 1949 “Final Record of the Diplomatic Conference” Vol II Section B p 121 See also First 35 Case No type Case # type date test formulated in the Tadi Decision on Jurisdiction It defines an internal armed conflict by the same two characteristics “protracted armed conflict” and “organised armed groups ” without including further conditions 302 As in the Tribunal’s jurisprudence Article 8 2 d of the ICC Statute further clarifies that the ICC Statute does not apply to “situations of internal disturbances and tensions such as riots isolated and sporadic acts of violence or other acts of a similar nature ” A commentary on the ICC Statute further suggests that additional factors such as the involvement of government forces on one side or the exercise of territorial control by the rebel forces are not indispensable for the determination of an armed conflict 303 88 The Defence submit even further that the extent of organisation of the parties required for establishing an armed conflict as well as generally the level of its intensity have not yet been defined by the jurisprudence of the Tribunal 304 They submit that the law does not require the impossible and that in order to be bound by international humanitarian law a party to a conflict must be able to implement international humanitarian law and at the bare minimum must possess a basic understanding of the principles laid down in Common Article 3 a capacity to disseminate rules and a method of sanctioning breaches 305 They also refer to Additional Protocol II to the Geneva Conventions which requires a higher standard for establishment of an armed conflict and submit that in order for Additional Protocol II to apply it must be established that the insurgent party in the present case the KLA was sufficiently organised to carry out continuous and persistent military operations and to impose discipline on its troops that it exercised some degree of stability in the territories it was able to control and had the minimum infrastructure to implement the provisions of Additional Protocol II 306 89 The Chamber does not share this view The two determinative elements of an armed conflict intensity of the conflict and level of organisation of the parties are used “solely for the purpose as a minimum of distinguishing an armed conflict from banditry unorganized and shortlived insurrections or terrorist activities which are not subject to international humanitarian 302 303 304 305 and Second Draft drawn up by the First Working Party Annexes A and B to the 7th Report of the Joint Committee Final Record of the Diplomatic Conference Vol II-B pp 124-125 Article 8 paragraph 2 f of the ICC Statute reads “Paragraph 2 e applies to armed conflicts not of an international character and thus not apply to situations of internal disturbances and tensions such as riots isolated and sporadic acts of violence or other acts of a similar nature It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organised armed groups or between such groups ” Knut Dormann “Elements of War Crimes under the Rome Statute of the International Criminal Court Sources and Commentary ” Cambridge University Press 2002 pp 386-387 referring to G Abi-Saab “Non-international Armed Conflicts” in UNESCO Henry Dunant Institute eds International Dimensions of Humanitarian Law Martinus Nijhoff Geneva Paris and Dordrecht 1988 p 237 C Greenwood “Scope of Application of Humanitarian Law” in D Fleck ed The Handbook of Humanitarian Law in Armed Conflict Oxford University Press Oxford 1995 p 48 Defence Skeleton Argument on the Jurisdictional Issue of Armed Conflict para 37 Closing Arguments T 7371 Defence Skeleton Argument on the Jurisdictional Issue of Armed Conflict para 38 36 Case No type Case # type date law ”307 Therefore some degree of organisation by the parties will suffice to establish the existence of an armed conflict This degree need not be the same as that required for establishing the responsibility of superiors for the acts of their subordinates within the organisation as no determination of individual criminal responsibility is intended under this provision of the Statute This position is consistent with other persuasive commentaries on the matter A study by the ICRC submitted as a reference document to the Preparatory Commission for the establishment of the elements of crimes for the ICC noted that The ascertainment whether there is a non-international armed conflict does not depend on the subjective judgment of the parties to the conflict it must be determined on the basis of objective criteria the term ‘armed conflict’ presupposes the existence of hostilities between armed forces organised to a greater or lesser extent there must be the opposition of armed forces and a certain intensity of the fighting 308 90 For these reasons the Chamber will apply the test enumerated in the Tadi Jurisdiction Decision to determine whether the existence of an armed conflict has been established Consistently with decisions of other Chambers of this Tribunal and of the ICTR the determination of the intensity of a conflict and the organisation of the parties are factual matters which need to be decided in light of the particular evidence and on a case-by-case basis 309 By way of example in assessing the intensity of a conflict other Chambers have considered factors such as the seriousness of attacks and whether there has been an increase in armed clashes 310 the spread of clashes over territory and over a period of time 311 any increase in the number of government forces and mobilisation and the distribution of weapons among both parties to the conflict 312 as well as whether the conflict has attracted the attention of the United Nations Security Council and whether any resolutions on the matter have been passed 313 With respect to the organisation of the parties to the conflict Chambers of the Tribunal have taken into account factors including the existence of headquarters designated zones of operation and the ability to procure transport and distribute arms 314 91 Further to meet the jurisdictional preconditions of Article 3 of the Statute the Prosecution must establish not only the existence of an armed conflict but also a sufficient link between the 306 Defence Final Brief paras 208-217 Tadi Trial Judgement para 562 emphasis added 308 ICRC Working Paper 29 June 1999 submitted by the ICRC as a reference document to assist the Preparatory Commission in its work to establish the elements of crimes for the ICC emphasis added 309 “The definition of an armed conflict per se is termed in the abstract and whether or not a situation can be described as an armed conflict meeting the criteria of Common Article 3 is to be decided upon on a case-by-case basis ” Prosecutor v Rutaganda Case No ICTR-96-3 Judgement 6 December 1999 para 93 310 Tadi Trial Judgement para 565 elebi i Trial Judgement para 189 Milo evi Rule 98bis Decision para 28 311 Tadi Trial Judgement para 566 Milo evi Rule 98bis Decision para 29 312 Milo evi Rule 98bis Decision paras 30-31 See also elebi i Trial Judgement para 188 313 Tadi Trial Judgement para 567 elebi i Trial Judgement para 190 314 Milo evi Rule 98bis Decision paras 23-24 307 37 Case No type Case # type date alleged acts of the accused and the armed conflict 315 The armed conflict need not have been causal to the commission of the crime charged but it must have played a substantial part in the perpetrator’s ability to commit that crime 316 In determining whether such nexus exists the Chamber may take into account inter alia whether the perpetrator is a combatant whether the victim is a non-combatant whether the victim is a member of the opposing party whether the act may be said to serve the ultimate goal of a military campaign and whether the crime is committed as part of or in the context of the perpetrator’s official duties 317 92 There is also the further Defence submission that Additional Protocol II does not apply in the present case as “there is a compelling argument that the KLA were in actual fact an armed group fighting for self-determination against alien domination and a racist regime ” a situation covered by Article 1 paragraph 4 of Additional Protocol I 318 As has already been indicated the nature of the armed conflict is irrelevant to the application of Article 3 of the Statute 319 It is therefore unnecessary to consider this submission any further b Findings 93 The Indictment alleges that an armed conflict between Serbian forces and the KLA existed in Kosovo not later than early 1998 320 The Chamber heard evidence and is satisfied that the Serbian forces involved in Kosovo in 1998 included substantial forces of the Army of Yugoslavia “VJ” and the Serbian Ministry of Internal Affairs “MUP” 321 i e the police and therefore constitute “governmental authorities” within the meaning of the Tadi test The Chamber will discuss below whether the Prosecution has established that the KLA possessed the characteristics of an organised armed group within the meaning of the Tadi test and whether the acts of violence that occurred in Kosovo in the material time reached the level of intensity required by the jurisprudence of the Tribunal to establish the existence an armed conflict i Organisation of the KLA 94 The Chamber has discussed the creation of the KLA and the establishment of its General Staff earlier in this decision 322 It has accepted that at the material time there was a General Staff of the KLA and that its members included Azem Syla Sokol Bashota Rexhep Selimi Llahib Rrahimi 315 316 317 318 319 320 321 Tadi Trial Judgement paras 572-573 Kunarac Appeals Judgement para 58 Kunarac Appeals Judgement para 59 Defence Final Brief paras 184-197 See supra para 83 Indictment para 4 Exhibit P230 Philip Coo T 5697-5699 John Crosland T 1910 1877-1879 1890 1900 Exhibit P92 tabs 7 and 17 See also infra paras 161-165 38 Case No type Case # type date Xhavid Zeka Hashim Thaci Kadri Veseli and Jakup Krasniqi 323 While some evidence indicates that most of the regional commanders were represented in “the high command ” described as the body within the KLA that took decisions for the whole KLA 324 i e the General Staff this evidence is insufficient to support a finding of the Chamber 95 Further as the Chamber has found earlier in this decision 325 progressively from late May to late August 1998 the territory of Kosovo was divided by the KLA into seven zones Drenica Dukagjin Pastrik Shala Llap Nerodime and Karadak 326 Each zone had a commander and covered the territory of several municipalities 327 The level of organisation and development in each zone was fluid and developing and not all zones had the same level of organisation and development this was significantly influenced by the existence and extent of the KLA’s presence in each zone before April 1998 328 96 The Chamber accepts from the evidence and finds that it was the General Staff of the KLA which appointed the zone commanders As Sylejman Selimi testified a meeting which took place at the end of May 1998 and which was attended by Rexhep Selimi a representative of the General Staff and individuals holding important positions in other units nominated Sylejman Selimi to become the commander of the 1st Operational Zone However this proposal had to be approved by the General Staff and Sylejman Selimi was in fact appointed commander of the 1st Operational Zone by the General Staff 329 The Chamber’s finding is supported also by evidence that in mid June 1998 the General Staff began appointing zone commanders 330 97 In the Chamber’s finding every leader of an operational unit had an obligation to inform the General Staff about all developments in their respective areas of responsibility 331 For example the commander of the Drenica zone Sylejman Selimi reported directly to the General Staff There was no intermediate command level 332 98 While not necessarily without fail the Chamber accepts that generally zone commanders acted in accordance with directions from the General Staff The “Provisional Regulations for the 322 323 324 325 326 327 328 329 330 331 332 See supra paras 44 and 45 See supra para 46 Peter Bouckaert T 5513-5514 See supra para 63 Initially the entire territory of Kosovo may have been referred to as Zone One and the other zones as sub-zones Jakup Krasniqi T 3322-3323 Jakup Krasniqi testified that the zones and the subzones were references to the same entities T 3479-3482 Jakup Krasniqi T 3479-3482 Jakup Krasniqi T 3412-3415 T 3468-3470 Sylejman Selimi T 2070-2072 2212 See also Rexhep Selimi T 6691 Shukri Buja T 3797-3799 See Jakup Krasniqi T 3412-3413 Sylejman Selimi T 2072-2075 2231-2232 39 Case No type Case # type date Organisation of the Army’s Internal Life” of the KLA “Regulations” 333 were distributed to the various units by the General Staff 334 Sylejman Selimi testified that he started to create the zone and the military police upon a proposal from the General Staff 335 99 Further the evidence indicates that the General Staff was active in making key individual appointments of importance for the development and functioning of the KLA For example after the arrival in Kosovo on 29 May 1998 of Bislim Zyrapi the General Staff of the KLA appointed him to be responsible for the development and professionalisation of the KLA a function he had from June to mid July 1998 336 On 11 June 1998 Jakup Krasniqi was appointed by the General Staff to be the spokesperson of the KLA 337 In July 1998 the General Staff appointed a civilian directorate in Malisheve Malisevo 338 100 The General Staff was also active in organising issues of overall importance for the functioning of the KLA such as the supply of weapons So it was that in May 1998 Shukri Buja was ordered by the General Staff to organise the supply line of weapons from Albania to Kosovo and in particular to the municipalities of Kacanik Kacanik Lipjan Lipljan Shtime Stimlje and Ferisaj Urosevac 339 This order came from the General Staff and was communicated to Shukri Buja by Hashim Thaci 340 101 Further it was the General Staff that issued political statements and communiqués which informed the general public in Kosovo and the international community of its objectives and its activities Political Statement No 2 of the KLA issued by the General Staff on 27 April 1998 and published in the Kosovo newspaper “Bujku” two days later described the KLA and its political goals as follows 341 The KLA constitutes the integrity of the armed forces of Kosovo and its occupied territories and its aim is the liberation and unification of the occupied territories of Albania Political Statement No 2 further proclaimed that the KLA had a defending and liberating character and that it condemned terrorism and other forms of violence over civilians and prisoners of war 342 333 334 335 336 337 338 339 340 341 342 Exhibit P156 See infra paras 110-112 Ramiz Qeriqi believed that the Regulations must have come from the General Staff T 3604 Sylejman Selimi T 2212-2213 Bislim Zyrapi T 6821 Jakup Krasniqi T 3311-3313 Exhibit P48 ERN U0038475 Fatmir Limaj T 5990-5991 Shukri Buja T 3773-3774 Shukri Buja T 3773-3774 Exhibit P142 Point 1 Jakup Krasniqi T 3371-3373 Exhibit P142 Points 2 and 3 40 Case No type Case # type date 102 From early June 1998 the KLA had an official spokesperson Jakup Krasniqi 343 whose duties were to communicate with the domestic and foreign media based in Kosovo and to present the KLA’s political program 344 Jakup Krasniqi was a member of the General Staff 345 103 The communications between the KLA and the public were generally conducted by communiqués As a general rule the communiqués were issued by the General Staff Infrequently communiqués were released by a zone commander acting without the knowledge of the General Staff This was explicitly stated in such a communiqué 346 From the end of 1997 to August 1998 the General Staff of the KLA issued dozens of communiqués reporting military actions and operations undertaken by the organisation 347 104 At the time material to the Indictment the KLA General Staff also sometimes referred to in the evidence as general headquarters 348 did not have a consistent place of location 349 The KLA was forced to function as an underground organisation 350 Members of the KLA and its General Staff and members were at constant risk of capture Therefore the General Staff met irregularly and at different places because of the security situation Its members communicated primarily by telephone and fax 351 There were however a number of local KLA headquarters in various places in Kosovo The evidence indicates that major KLA headquarters were located in Malisheve Malisevo 352 in Klecke Klecka 353 and in the village of Divjake Divljaka 354 There were also headquarters in Jabllanice Jablanica 355 Carraleve Crnoljevo 356 Shale Sedlare 357 Vojnike Vocjnak 358 Likofc Likovac 359 Pjetershtice Petrastica 360 and Llapushnik Lapusnik 361 among other places 105 Zone commanders of the KLA issued orders to the commanders of units within their zone Sylejman Selimi’s decisions as a commander were disseminated immediately when he was present 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 Jakup Krasniqi T 3311 Jakup Krasniqi T 3311-3313 Jakup Krasniqi T 3310-3311 Jakup Krasniqi T 3314-3315 Jakup Krasniqi T 3319-3340 See Fatmir Limaj T 5950-5952 Peter Bouckaert T 5513-5514 Fatmir Limaj T 5950-5952 Jakup Krasniqi T 3305-3307 Jakup Krasniqi T 3309-3310 See also Sylejman Selimi T 2072-2073 John Crosland T 1952-1952 Jan Kickert T 675 Fatmir Limaj T 5959-5960 L95 T 4218-4223 4230-4231 Ramadan Behluli T 2681-2686 Rexhep Selimi T 6602 6658-6659 John Crosland T 1959 L95 T 4185-4191 John Crosland T 1933 1938 Jan Kickert T 687-688 John Crosland T 1907 John Crosland T 1872 1925 Jakup Krasniqi T 3425-3426 L04 T 1119-1120 See infra para 249 41 Case No type Case # type date and copies of orders directed to units were also generally copied to the General Staff 362 It can be assumed from the evidence that because of the absence of adequate physical facilities for security reasons and because the KLA lacked radio facilities generally orders were issued orally but operational orders were later conveyed in writing 363 Of course at times it was not possible for subordinates to carry out orders due to fighting conditions 364 106 The evidence indicates that the General Staff gave the zone commanders responsibility for the establishment of the brigades As the commander of the 1st Operational Zone Sylejman Selimi was first charged with establishing the brigades in Drenica zone from the pre-existing fighting points and units Accordingly he established the 111th 112th 113th and 114th Brigades 365 107 Zone commanders also authorised the movement of soldiers Sylejman Selimi testified that soldiers would need a permission to move into another operational zone and this permission was granted by the commander of the unit 366 Some evidence suggests however that soldiers did not need the approval of their unit commander to move from one unit to another 367 108 Relevant for establishing the level of organisation of the KLA is the capacity of the KLA units to coordinate their actions At the end of July 1998 the commander of L95’s unit comprising 30 soldiers ordered that the soldiers of this unit go to the Berishe Berisa Mountains to assist the KLA forces there as they were likely to be attacked by Serbian forces 368 Accordingly L95 and the other soldiers from his unit went to the village of Novoselle Novo Selo 369 109 Commanders of some units had the power to approve the appointment of commanders of smaller units within their operational zone Ramiz Qeriqi aka “Luan ” who in the beginning of June 1998 was responsible for 70 to 100 persons in different fighting points Carraleve Crnoljevo Zborc Zborce Fushtice Fustica Blinaje Lipovica and Pjetershtice Petrastica 370 agreed that Ramadan Behluli should assume charge of Pjetershtice Petrastica 371 Ramadan Behluli was under Luan’s command and Luan gave him orders 372 These orders usually concerned the defence of the 362 363 364 365 366 367 368 369 370 371 372 Sylejman Selimi T 2231-2232 Sylejman Selimi T 2076-2078 In support of his authority to issue written orders is an order of 1 August 1998 addressed to unit commanders and civilian authorities ordering that markets should be concealed and prohibiting the gathering of more than three people in public Sylejman Selimi T 2079-2081 Exhibit P93 Sylejman Selimi T 2078 Sylejman Selimi T 2076-2078 Sylejman Selimi T 2150-2152 Elmi Sopi T 6733-6734 L95 T 4203-4212 L95 T 4203-4212 Ramiz Qeriqi T 3575 3577 Ramadan Behluli T 2665 2851 Ramiz Qeriqi T 3575-3576 Ramadan Behluli T 2666 2668 42 Case No type Case # type date existing positions and were conveyed to him in person 373 In relation to some matters such as the opening of new positions and trench digging Ramadan Behluli acted from day to day on his own initiative but he did so with the approval of Luan 374 Sometime in May or June 1998 Shukri Buja assumed command of Kroimire Krajmirovce and as Pjetershtice Petrastica and Carraleve Crnoljevo had come in the zone of responsibility of Kroimire Krajmirovce Luan became his deputy 375 Luan knew that above him and Shukri Buja there was a higher command and that the “organisational line” went from Likofc Likovac where the commander was Rexhep Selimi to Klecke Klecka where the commander was Fatmir Limaj to Kroimire Krajmirovce and that the general commander was Azem Syla 376 110 The KLA Regulations377 further support the existence of such an organisational structure and hierarchy Although the Regulations are dated “1998” and the precise date of their promulgation is not identified the Chamber accepts from the evidence and finds that at least by the end of June 1998 these Regulations were available and were being distributed among KLA soldiers at various positions This is supported by the evidence of Ramiz Qeriqi aka Luan who testified that at the end of June 1998 he and Shukri Buja had the Regulations and had to give a copy of these Regulations to every soldier 378 Fatmir Limaj also testified that at the end of June 1998 he received the KLA Reguslations 379 111 The Regulations inter alia established several ranks of KLA servicemen defined the duties of the unit commanders and deputy unit commanders as well as the duties of the company platoon and squad commanders and created a chain of military hierarchy between the various levels of commanders 380 It was declared in the Regulations that “obedience respect and orders strictly follow the chain of military hierarchy ”381 The Regulations authorised an officer at a higher level “to demand from an officer beneath him the enforcement of the law of regulations of orders instructions etc ” and provide that “a junior officer is obliged to carry out orders decisions instructions etc ”382 Further the Regulations contained explicit provisions directed to guaranteeing that orders would be executed down the hierarchy 383 373 374 375 376 377 378 379 380 381 382 383 Ramadan Behluli T 2666 2688 Ramadan Behluli T 2666-2668 Ramadan Behluli T 2667 Exhibit P116 Ramiz Qeriqi T 3578 Ramiz Qeriqi T 3578-3579 Exhibit P156 Ramiz Qeriqi T 3604 Fatmir Limaj T 6543 Exhibit P156 Exhibit P156 Chapters Five and Six Exhibit P156 Chapter Five Article 1 3 Exhibit P156 Chapter Five Article 1 4 Exhibit P156 Chapter Five Article 2 2 “Orders are not for discussion they are carried out faithfully quickly and exactly A soldier is obliged to report the execution of an order to the officer An officer is responsible for the 43 Case No type Case # type date 112 The Regulations revealed a significant step in the ongoing process of developing and enforcing greater coordination and consistency within the rapidly expanding KLA and between the KLA units They were distributed to the units by the KLA’s General Staff 384 The Regulations provided that the first duty of a unit commander was inter alia to supervise obedience to and enforcement of the KLA’s programme and regulations 385 113 Indicative of the extent of the KLA’s developing formal organisation is the establishment of a military police which generally were responsible for the discipline of the soldiers386 and for controlling the movements of KLA servicemen 387 The evidence concerning the date of the establishment of the military police “PU” in Albanian reflects the inconsistency evident about all aspects of the development of the KLA’s organisational structure Some witnesses testified that military police were not established until August 1998 or later For example the Accused Fatmir Limaj said that the military police started to operate independently in each zone in August 1998 and that the uniforms of the military police first appeared in mid December 1998 388 However Ramadan Behluli saw military police in Kroimire Krajmirovce a little before the offensive in Zborc Zborce which took place on 25 and 26 July 1998 389 They wore black uniforms with the PU insignia on their badges 390 Ramiz Qeriqi accepted the proposition put forward to him by the Defence that military police as an organisation within the KLA did not exist until sometime after the brigades and the battalions were formed 391 In contrast to this Sylejman Selimi testified that as the commander of the Drenica zone he started to establish military police approximately two months after his appointment as a zone commander in May 1998 in other words in July 1998 and about the time when he recalled brigades being formed 392 In the course of his evidence however Sylejman Selimi also accepted that he may have issued an order in respect of military police in May 1998 393 which the Chamber finds as noted in the next paragraph did occur Similarly he also 384 385 386 387 388 389 390 391 392 393 possible consequences resulting from the order given ” Exhibit P156 Chapter Five Article 2 5 “A commander is obliged to ensure the execution of an order ” The nature of the Regulations and their self-evident purpose are enough in themselves to demonstrate that they were drown up and distributed by the KLA’s one coordinating authority at the time i e the General Staff That was the understanding of Ramiz Qeriqi at the time T 3604 The Regulations became available to the units at approximately the same time as is evident from the evidence of Ramiz Qeriqi and Fatmir Limaj who were with different units Exhibit P156 Chapter Six Article 1 2 Sylejman Selimi T 2082-2084 Ramiz Qeriqi T 3611 Ramadan Behluli T 2793-2794 Fatmir Limaj T 6091-6093 Ramadan Behluli T 2793-2794 Ramadan Behluli T 2793-2794 Ramiz Qeriqi T 3669-3670 Sylejman Selimi T 2082 2186 2195 Sylejman Selimi T 2212-2213 44 Case No type Case # type date accepted that it was possible that by mid May 1998 there had been an order or an instruction from the General Staff for there to be a military police unit 394 114 The written record scarce as it was and is demonstrates that the recollections of the witnesses so far as their recollections are disclosed in their oral evidence on this issue of timing are too conservative and that in fact the movement to introduce military police in the KLA commenced earlier in time than many now indicate A “Programme for Military Police” issued on behalf of Sylejman Selimi and signed by Shaban Shala was issued on 13 May 1998 The Programme obliged the commanders in the Drenica zone to inform their soldiers of the programme of the military police 395 It was stated in the Programme that soldiers who leave the front line without the permission of the commander will be imprisoned by the military police The Programme regulates the occasions when bearing of arms is not allowed and authorised the military police to use physical force against a soldier disobeying orders 396 The Programme 397 provided that it would come into force on 20 May 1998 115 This Programme is consistent with the KLA Regulations Chapter Eight of which deals with the military police It is stipulated that the military police are organised in operational zones and sub-zones and that their duties include inter alia keeping order and discipline in the military units and bases controlling the movement of soldiers and their travel permits controlling the movement of suspicious persons securing the transportation of military materiel and seizing the documents and the weapons of servicemen and soldiers who break the regulations 398 116 There is scant evidence as to the extent to which the regulations concerning the military police and the disciplinary rules were enforced in practice Reports indicated that in the second half of June 1998 KLA police organised traffic in Malisheve Malisevo 399 The evidence about the actual enforcement of disciplinary procedures is scarce Peter Bouckaert testified that during his visit to Kosovo between September and November 1998 he and another Human Rights Watch researcher had been told by KLA members that there were disciplinary procedures in place but throughout the entire period of their research covering the time from late February to November 1998 they did not document a single case in which the KLA disciplined or punished its own troops 400 Sylejman Selimi indicated that prior to the formation of the brigades there was no 394 395 396 397 398 399 400 Sylejman Selimi T 2212-2213 Exhibit P95 Sylejman Selimi T 2214-2216 2220-2230 Exhibit P95 Points 1-6 Exhibit P95 Exhibit P156 Chapter Eight Article 1 3 Exhibit P92 tab 29 Peter Bouckaert T 5518 45 Case No type Case # type date strict military discipline 401 Fatmir Limaj suggested in his evidence that in the period from May to July 1998 he could only expel a soldier who misbehaved from the unit he was responsible for and if a soldier had been given a weapon he could have taken it back It was his position that it was not possible for him to prevent a soldier he expelled from his unit from going to another 402 While there is evidence that before the military police came into existence disciplinary sanctions could have been imposed on soldiers 403 the evidence does not identify any instance of soldiers being removed from their units 404 117 In view of the above the Chamber accepts and finds that in mid May 1998 the General Staff of the KLA formally moved to introduce military police within the KLA While it is not apparent on the evidence before the Chamber that disciplinary rules were then consistently enforced in KLA units the Chamber regards this step as affording clear evidence of the growing formality and effectiveness of the organisational structure of the KLA by mid May 1998 and of the progress of the General Staff towards ensuring that the KLA functioned as a disciplined and coordinated military force 118 Of further relevance to the extent and effectiveness of the KLA’s organisation at the relevant time is its ability to recruit new members While the events in Kosovo from early 1998 had a positive impact on KLA membership 405 it is apparent from the evidence that the KLA’s General Staff made a consistent effort to persuade people to join the organisation On 15 June 1998 at his first public statement as the official spokesperson of the KLA made on Albanian television and reprinted in the Kosovo’s newspaper “Bujku ” Jakup Krasniqi presented part of the KLA’s programme and called on the people of Kosovo to join the KLA 406 He further testified that the aim of the KLA communiqués as a propaganda material was to increase the respect and authority of the KLA in the perception of the citizens in order that the people would believe in it and would join 407 Indeed the number of people joining the KLA was increasing rapidly 408 Reports of the VJ indicate that during the relevant period the KLA mobilised between 3500 and 4500 men 409 119 The evidence confirms that generally upon joining the KLA soldiers were provided with military training As an illustration of this after he registered with the KLA in mid May 1998 L95 401 402 403 404 405 406 407 408 Sylejman Selimi T 2175-2177 Fatmir Limaj T 6566-6569 These sanctions included assignment of extra duty a written notification removal of the soldiers’ guns or uniforms and in case of a repeated mistake removal from duty Sylejman Selimi T 2082-2086 See also Sylejman Selimi T 2082-2086 See supra paras 49-52 Exhibit P139 Jakup Krasniqi T 3355-3359 Jakup Krasniqi T 3340-3341 See for example Shukri Buja T 3779 Ramiz Qeriqi T 3575 46 Case No type Case # type date received weapon and other training 410 A training centre for volunteers was also set up in Klecka Klecka by Fatmir Limaj Ajet Kastrati was appointed by him to be responsible for the training there 411 Basic military training of KLA forces was provided in the Albanian villages of Tropolja Kukes and Bajram Curi 412 120 At the end of June 1998 three experienced military officers Bislim Zyrapi Agim Qelaj and a person identified only as “Hans” were sent by the General Staff to Klecka Klecka and various other points including Lapushnik Lapusnik to assess the armament of the KLA soldiers and to give advice to the respective unit commanders on matters such as training tactics and the placement of defensive positions 413 121 In early 1998 including the period material to the Indictment the KLA had mostly light weapons 414 KLA soldiers were normally armed with AK-47 rifles a standard weapon for the region and rocket propelled grenades 415 Other KLA armaments in limited supply were pistols semi-automatic and automatic rifles 416 some anti-tank weapons 417 light infantry weapons of 7 62 and 7 9 calibre other hand held weapons 418 some 60 mm and 82 mm mortars 419 as well as 150 mm and 250 mm mortars hand grenades and some mines 420 122 Most of the KLA weapons were supplied from Albania 421 Some weapons also came from Kosovo as civilians who possessed weapons surrendered them to the KLA 422 These were often hunting rifles The KLA also used weapons of Yugoslav manufacture 423 In the initial stages at least many point and area commanders sought weapons on their own initiative Others only recruited those who came with their own weapon 424 At the same time and increasingly by May 1998 and thereafter as discussed earlier the General Staff was directly active in securing supplies of weapons and ammunition and their distribution 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 Philip Coo T 5792-5794 See also Exhibit P92 tab 17 The Chamber notes that it is suggested in the evidence that this number may have been exaggerated Philip Coo T 5794-5800 John Crosland T 2009 L95 T 4197-4198 Fatmir Limaj T 5970-5972 John Crosland T 1960 See also Exhibit P92 tab 13 Fatmir Limaj T 5973-5974 6077-6078 Sylejman Selimi T 2147 John Crosland T 2010 Philip Coo T 5726-5727 See also Ramadan Behluli T 2851-2855 Bislim Zyrapi T 6823 See also Elmi Sopi T 6736-6737 Bislim Zyrapi T 6823 See also Elmi Sopi T 6736-6737 Rexhep Selimi T 6597 Philip Coo T 5734-5736 Elmi Sopi T 6736-6737 Fatmir Limaj T 6011-6012 John Crosland T 1885-1887 1960 Exhibit P92 tab 10 Sylejman Selimi T 2147-2148 See also Fatmir Limaj T 5970-5971 Rexhep Selimi T 6623-6624 Shukri Buja T 4035-4036 Sylejman Selimi T 2148 Ruzhdi Karpuzi T 3070-3072 47 Case No type Case # type date 123 The evidence varies considerably as to the supply and use of uniforms in the KLA in the period before August 1998 Some evidence indicates that by February 1998 most of the KLA soldiers had uniforms with badges identifying their allegiance 425 although the evidence indicates that the military uniforms were of varying nature 426 Some KLA soldiers wore some self-made uniforms 427 Others had no uniforms at all 428 As with most things the position regarding uniforms improved as the end of 1998 neared While the existence of a uniform may be indicative of the existence of a well-organised entity in the view of the Chamber this factor alone is not determinative in this case of the existence of an organised military structure as it has little bearing on the functioning of the KLA especially having regard to its rapid expansion after March 1998 which undoubtedly placed unanticipated strain on the provision of commodities such as uniforms at a time when other needs were clearly more relevant to the military functioning of the KLA 124 The evidence is clear that at least until near the end of 1998 the KLA was not adequately equipped with communications equipment either for linking headquarters with units or between units For this reason and because of security much communication was by means of messenger 429 There were some radio transmitters 430 however and some units came to use two way radios and mobile phones often provided by individual members 431 Others relied on basic means such as gun shots as a means of communication 432 125 Indicative of the extent of the KLA’s organisation is its role in the negotiations with representatives of the European Community and foreign missions based in Belgrade Jan Kickert a diplomat with the Austrian Embassy in Belgrade indicated that by the middle of 1998 it had become evident that a solution of the Kosovo crisis would not be achieved without the involvement of the KLA 433 This was the assessment of his Mission which is of particular relevance as Austria then had the Presidency of the European Union 126 In July 1998 at the request of the Secretary-General of the Austrian Foreign Ministry Albert Rohan a meeting of representatives of the Missions of States of the European Community with KLA representatives was set up in Malisheve Malisevo which was known as the “capital” of the 425 426 427 428 429 430 431 432 433 Peter Bouckaert T 5511-5513 John Crosland T 1901 1953 Ramadan Behluli T 2851-2855 See also Elmi Sopi T 6726 Elmi Sopi T 6726 See Ramadan Behluli T 2853-2855 Ramiz Qeriqi T 3588 Jakup Krasniqi T 3453-3455 See also Shukri Buja T 3998-4001 Sylejman Selimi testified that the units of the Pastrik and Drenica zone were communicating via radio or in person T 2148-2150 Exhibit DL13 para 44 Exhibit DL13 Addendum p 6 See also L12 T 1792-1795 Shukri Buja T 3998-4001 Jan Kickert T 659-660 48 Case No type Case # type date so-called “free territories ” i e those under the KLA control 434 The meeting took place on 22 July 1998 and was attended inter alia by the Secretary-General of the Austrian Foreign Ministry Albert Rohan by the Director of the Balkans Department of the Austrian Ministry of Foreign Affairs Gerhard Jandl by Nick Turnbull Jan Kickert and an observer from the European Community Monitoring Mission “ECMM” 435 On the KLA side the meeting was attended by Gani Krasniqi a civilian and the mayor of Malisheve Malisevo and Kadri Veseli who was introduced to the foreign delegation as Number 7 436 127 On the following day 23 July 1998 a second meeting was held Hashim Thaci who was introduced as Number 3 and Kadri Veseli introduced as Number 7 attended the meeting 437 On 24 July 1998 Jan Kickert prepared a report to the Austrian Ministry of Foreign Affairs indicating inter alia that the KLA representatives had informed the Embassy of the KLA’s resolve to cooperate with the other Kosovo parties and to participate in a government of national unity or a round table 438 128 On 30 July 1998 a third meeting between representatives of the foreign missions of States of the European Community and the KLA was held in Klecka Klecka 439 The meeting was attended by Jan Kickert from the Austrian Embassy and David Slinn from the British Embassy in Belgrade The KLA was represented by Jakup Krasniqi the KLA spokesperson Rame Buja the person responsible for organising the civil authorities in the so-called free territories and Fatmir Limaj 440 At the meeting the creation of a united Kosovar political platform a delegation from various political entities in Kosovo to enter into negotiations with Belgrade was discussed 441 A report to the Austrian Federal Ministry of Foreign Affairs prepared by Jan Kickert on 31 July 1998 indicated that at the meeting the KLA representatives confirmed a change in their tactics and proposed conditions for the KLA not to carry out offensive operations 442 The report stated The KLA representatives who were met with confirmed the change in their tactics it is clear for them that a conventional war with well-defined front lines is not possible and they will therefore confine themselves to guerrilla actions The threat was reiterated that actions in big towns such as Pristina could always be started 443 434 435 436 437 438 439 440 441 442 443 Jan Kickert T 661 Jan Kickert T 663 749 Jan Kickert T 663-664 Jan Kickert T 669-670 717 Exhibit P56 p 1 Jan Kickert T 670-672 Jan Kickert T 677 749 750 Jakup Krasniqi T 3406-3408 Jan Kickert T 680 749 Jakup Krasniqi T 3406-3408 Jan Kickert T 688-689 See also Jakup Krasniqi T 3409-3410 Exhibit P59 p 4 Jan Kickert T 687-693 Exhibit P59 p 4 Jan Kickert T 692 49 Case No type Case # type date The report further indicates that the KLA representatives named the following three conditions if the KLA was to exercise restraint the withdrawal of the Yugoslav army the return of all expelled persons and the removal of Serbian checkpoints 444 129 As this evidence confirms by July 1998 the KLA had become accepted by international representatives and within Kosovo as a key party involved in political negotiations to resolve the Kosovo crisis This discloses and confirms that by that time the KLA had achieved a level of organisational stability and effectiveness In particular this gave it the recognised ability to speak with one voice and with a level of persuasive authority on behalf of its members Both the KLA’s need for secrecy and the existence of an established hierarchy in its ranks is apparent from the circumstance that individuals involved in negotiations with foreign missions were referred to by a number apparently corresponding to their level in the KLA hierarchy Further from the course of these discussions it appears that the KLA was able to formulate and declare a change of military tactics and also conditions for refraining from further military action This is indicative that at the time the KLA had the ability to coordinate military planning and activities and to determine a unified military strategy as well as the ability to conduct military operations of a larger scale 130 The Chamber would observe that the significance of the presence of Fatmir Limaj at the third of these meetings is a matter of controversy The Prosecution rely on it as evidence of his high stature in the KLA However the Chamber notes he did not use a hierarchy number at the meeting Fatmir Limaj explains his presence on the basis that he was then unit commander for the place where the meeting was held i e in Klecka Klecka 131 The Chamber heard evidence that representatives of foreign missions and international non- governmental organisations were sometimes unclear about the KLA’s command structure A report from the Austrian Embassy in Belgrade to the Austrian Federal Ministry of Foreign Affairs referred to US sources describing the KLA command structure as “a mystery” and “more a matter of diffuse horizontal command and coordination structure ”445 Jan Kickert testified that this indicated the difficulties the US and other foreign missions had in identifying their interlocutors 446 Another report from the Austrian Embassy to the Austrian Ministry of Foreign Affairs referred to a statement of Richard Holbrooke indicating that it was not known to him whether the KLA had an internal chain of command 447 Peter Bouckaert of Human Rights Watch testified that it was 444 445 446 447 Exhibit P59 p 4 Jan Kickert T 693 Exhibit P61 p 1 Jan Kickert T 708 Jan Kickert T 708 Exhibit P64 p 1 Jan Kickert T 715 50 Case No type Case # type date difficult for him to understand who fitted into the KLA structure and for this reason he preferred to talk to regional and sub-regional commanders 448 132 In the Chamber’s finding this evidence does not establish the non-existence of a KLA organisational structure Rather it reflects the conditions under which the KLA operated at the time The KLA was effectively an underground organisation operating in conditions of secrecy out of concern to preserve its leadership 449 and under constant threat of military action by the Serbian forces 450 The members of the General Staff did not meet regularly because of the security situation and identified themselves not by their names but by numbers for the same reason 451 In these circumstances it is of no surprise that the organisational structure and the hierarchy of the KLA were confusing or not known to outside observers and that to some this suggested a state of confusion 133 In evidence before the Chamber are various statements assessing the organisational level of the KLA in the period material for the Indictment Robert Churcher’s “Expert Report on Organisation of Kosovo Liberation Army and Events in Kosovo in 1998 ” concludes that the KLA was not capable of creating the command system or the discipline and training necessary to be considered an armed force in the legal sense of the Indictment that the KLA was not capable to engage in war-like operations amounting to an armed conflict and that the Serbian armed forces used massively inappropriate force against its own citizens 452 The basis for this conclusion is the author’s own impressions of the situation in Kosovo where he was present from June to December 1998 as well as for some time in 1993 and 1997 and the author’s own assessment of the evidence before the Chamber 453 Further in evidence before the Chamber is a report of Human Rights Watch finding that at the material time the KLA was an organised military force for the purposes of international humanitarian law 454 as well as a report from the Austrian Embassy to the Federal Ministry of Foreign Affairs of 7 July 1998 referring to a statement of Adem Demaqi that clear organisational structures and a hierarchy were present within the KLA 455 The Chamber has 448 449 450 451 452 453 454 455 Peter Bouckaert T 5513-5514 See supra paras 45 and 46 See infra para 172 See supra paras 46 and 129 Exhibit DL13 p 18 Exhibit DL 13 Robert Churcher testified that the report was an analysis based on what he remembered on what he knew on what he read and on the sources he was asked to read by the Defence team T 6383-6384 Exhibit P212 tab 5 p 92 A report of Human Rights Watch described the KLA as follows “although the UÇK is primarily a guerrilla army with no rigid hierarchical structure and there are separate internal factions during the period covered by this report from February to September 1998 the UÇK was an organised military force for purposes of international humanitarian law ” Exhibit P64 p 2 The report from the Austrian Embassy to the Federal Ministry of Foreign Affairs refers to a statement of Adem Demaqi the head of the Parliamentary Party of Kosovo PKK one of the political parties opposing the LDK of Ibrahim Rugova that a clear organisational structure and a hierarchy of the KLA was present and that he himself had met with persons identifying themselves with numbers See also Jan Kickert T 715 717 51 Case No type Case # type date discussed the facts offered in support of these statements in its considerations on the level of organisation of the KLA above and has taken them into account in reaching its conclusions 134 In the Chamber’s finding before the end of May 1998 the KLA sufficiently possessed the characteristics of an organised armed group able to engage in an internal armed conflict ii Intensity of the conflict 135 Sporadic acts of violence between Serbian forces and the KLA occurred in Kosovo in 1997 and early 1998 Some of these acts of violence were discussed by the Chamber earlier in this decision 456 The most significant of them was the attack at the end of February 1998 and in early March 1998 on the villages Qirez Cirez Likoshan Likosane and Prekazi-i-Poshtem Donjie Prekaze located in the Drenica area in the course of which 83 Kosovo Albanians were killed 457 International observers present in Kosovo at the time testified that these events marked a turning point in the development of the conflict in Kosovo 458 136 Around 5 March 1998 a police action was carried out in the area of Kline Klina- Laushe Lausa located southwest of Prekazi Prekaze Reports indicated that buildings were attacked with heavy weapons and mortars A group of diplomats who visited Prekazi Prekaze on 8 March 1998 reported great devastation to a limited number of buildings continuing heavy police presence and a complete absence of civilian activities Houses were torched burned or fired at Serbian forces from the Ministry of the Interior “MUP” and forces associated with Serbian special units equipped with armoured personnel carriers and other heavy vehicles were involved in the operation 459 137 Communiqué No 45 issued by the General Staff of the KLA on 11 March 1998 described military operations that took place in the course of the days around 7 March 1998 between KLA armed forces and Serbian military police and paramilitary forces in the area between Gllogoc Glogovac Kline Klina and Mitrovice Kosovka Mitrovica in the east as well as in the areas between Decane Decani Gjakove Djakovica and Kline Klina between Malisheve Malisevo and Rahovec Orahovac and between Decane Decani and Peje Pec Jakup Krasniqi referred to these military operations in his evidence 460 456 457 458 459 460 See supra paras 48 and 49 See supra para 49 Philip Coo T 5707-5709 Peter Boukaert T 5516-5517 Exhibit P212 tab 5 John Crosland T 1864-1865 Exhibit P92 tab 3 Jakup Krasniqi T 3336 52 Case No type Case # type date 138 Around 24 March 1998 exchanges of fire occurred in several villages between Decane Decani and Gjakove Djakovica about 60 km west of Prishtina Pristina One Serbian policeman and five Kosovo Albanians were killed and one policeman and 10 Kosovo Albanians were injured Shots from a police helicopter were heard in the village of Irzniq Rznic located 10 km southeast of Decane Decani There were two explosions followed by an exchange of fire that lasted 20 minutes 461 At about the same time an exchange of fire occurred in the Jashanice Josanica area in Drenica in which the Serbian special police was involved At least 50 to 100 rounds were heard 462 Reports indicate that heavy weapons such as the “Praga” air defence system were moved into the area and that two platoons of police including a jeep equipped with a heavy machine gun were seen moving west from Skenderaj Srbica towards Laushe Lausa 463 The Serbian forces also deployed in this area a BOV-3 a triple-barrelled weapon While this weapon is designed primarily for anti-aircraft use and not for anti personnel use 464 its deployment indicates that it was for anti-personnel use as the KLA had no air power Further there were reports that around 25 March 1998 police armoured personnel carriers “APC”s were used in Gjakove Djakovica and that at least four policemen and at least five Kosovo Albanians were killed in the exchange of fire there 465 139 On 13 April 1998 a police station in the Vranjevac suburb of Prishtina Pristina was attacked by the KLA One policeman was wounded and the building was substantially damaged 466 Reports indicated that at the same time Serbian families were leaving the Decane Decani area in large numbers as a result of threats from armed Kosovo Albanians 467 Some 18 Serbian families left Decane Decani on 14 April 1998 and the atmosphere among the Serbs was becoming very tense 468 140 On 22 April 1998 substantial shooting occurred in the area of Decane Decani and Gjakove Djakovica as a result of which many civilians both Serbs and Kosovo Albanians left the area 469 Reports indicated a VJ presence in the area 470 There were reports that Kosovo Albanians were abducting Serbs that Kosovo Albanians attacked the VJ and that Serbian forces were 461 462 463 464 465 466 467 468 469 470 John Crosland T 1869 Exhibit P92 tab 5 Exhibit P92 tab 5 Exhibit P92 tab 5 John Crosland T 1871-1872 John Crosland T 1873 Exhibit P92 tab 6 Exhibit P92 tab 9 John Crosland T 1882 Exhibit P92 tab 9 John Crosland T 1883 Exhibit P92 tab 9 Exhibit P92 tab11 John Crosland T 1887 Exhibit P92 tab11 53 Case No type Case # type date attacking villages of Kosovo Albanians 471 One report suggested that two Kosovo Albanians were killed following an attack on a VJ installation 472 141 Further incidents occurred on the Kosovo-Albanian border A diplomatic telegram of 24 April 1998 referred to VJ sources reporting a military action against a group of 200 persons entering Kosovo from Albania which took place on 22 April 1998 in the area of Gjakove Djakovica as a result of which at least 16 of them were killed 473 Other reports indicated continuing combat operations in the area and more casualties 474 142 On 3 May 1998 heavy fighting broke out in Ponoshec Ponosevac located near Decane Decani eight km from the Albanian border The fighting continued for more than two days There were reports of Kosovo Albanian casualties and a build-up of Serbian police forces 475 At about the same time there were several clashes in villages in the Drenica area with casualties 476 Heavy MUP and VJ forces were deployed in the area including 80 to 100 special anti terrorist police in four separate locations 477 According to John Crosland the area between Ponoshec Ponosevac to Junik Junik had become a front line area where the Serbian forces attempted to clear the villages in order to use it as a free-fire area This they did by attacks to damage the houses and to force people to leave the area 478 143 As discussed in more detail earlier in this decision on 9 May 1998 fighting broke out in Llapushnik Lapusnik between Serbian forces and KLA fighters 479 At the end of the day the KLA fighters destroyed a Serbian Pinzgauer an APC used in the fighting The Serbian forces withdrew following which the KLA established a unit in the village 144 In about mid May 1998 the KLA closed the two main roads leading to Peje Pec Mitrovice Kosovska Mitrovica-Peje Pec road and the Peje Pec-Prishtina Pristina road 480 There is evidence that the third main road to Peje Pec Prishtina Pristina Shtime Stimlje Suhareke Suva Reka Prizren Prizren was ambushed on a regular basis by the KLA481 and that the KLA could also have closed it if that had been their intention 482 471 472 473 474 475 476 477 478 479 480 481 482 Exhibit P92 tab 11 Exhibit P92 tab 11 Exhibit P92 tab 12 Exhibit P92 tab 12 John Crosland T 1895-1897 Exhibit P92 tab 15 John Crosland T 1909 1911 Exhibit P92 tab 15 John Crosland T 1909 1911 Exhibit P92 tab 15 John Crosland T 1909 1911 John Crosland T 1910 See supra paras 66-77 John Crosland T 1915-1916 Exhibit P60 pp 1-2 John Crosland T 1915-1916 1921 John Crosland T 1943 54 Case No type Case # type date 145 Checkpoints were set up by both the KLA and the Serbian forces on these roads At the end of May 1998 there was a very heavy MUP presence on the Peje Pec-Prishtina Pristina road New MUP checkpoints were set up around Ferisaj Urosevac and Gjilan Gnjilane 483 The KLA also set up checkpoints on the road sometimes in places just two km away from the MUP checkpoints 484 To go through a KLA checkpoint journalists and observers were required to have a KLA travel permission These were issued by Adem Demaqi and were valid for one day 485 This of course affords further evidence of effective KLA organisation 146 Indicative of the growing intensity of the conflict is a report dated 13 May 1998 from Major-General Neboj a Pavkovi the commander of the Pristina Corps addressed to the command of the 3rd Army of the VJ The report stated that the security situation in Kosovo was getting “more complex every day” due to increasingly frequent attacks on MUP members citizens of Serbian nationality and Kosovo Albanians “loyal to the system” 486 It was reported that the MUP forces had not managed to ensure the blockade and destruction of the KLA forces in Drenica Gjakove Djakovica and Decane Decani which had led to KLA “spilling over” into Rahovec Orahovac Suhareke Suva Reka and Istog Istok municipalities and into the areas of Kacanik Kacanik Lipjan Lipljan and Ferisaj Urosevac municipalities It was the estimate of the VJ that even by then the KLA held about 30% of Kosovo 487 Philip Coo testified that this estimate was based on VJ’s intelligence reports and that it was confirmed by ECMM reports 488 In view of the situation the report of Major-General Pavkovi proposed a broader engagement of the Pristina Corps units 489 147 Reports of 14 May 1998 described an attack by 50 armed Kosovo Albanians on a Serbian community near Kline Klina in Drenica during which one Serbian policeman was injured At about the same time official Serbian forces reported that 10 Kosovo Albanians were killed at Smonice Smonica near the Albanian border while Albanian sources claimed that the 10 men were killed by land mines 490 148 On 15 May 1998 heavy fighting broke out in the area of Gjakove Djakovica Ponoshec Ponosevac and Junik Junik in which Serbian special-police forces were involved 491 John Crosland was detained briefly by the KLA in Vojnok Vojinovce and believed that the KLA 483 484 485 486 487 488 489 490 491 John Crosland T 1926 See also Oleg Safiulin T 1714-1719 John Crosland T 1926-1927 Peter Bouckaert T 5514-5515 Exhibit P92 tab 17 Exhibit P92 tab 17 Philip Coo T 5714-5717 Exhibit P92 tab 17 Philip Coo T 5717 Exhibit P92 tab 18 John Crosland T 1924 Exhibit P92 tab 19 55 Case No type Case # type date controlled at the time part of Drenica and other areas where they had taken over former MUP positions 492 149 On 18 or 19 May 1998 further fighting broke out in the Llapushnik Lapusnik gorge The Serbian forces attempted to take control of the gorge and used mortars rockets and mines in the fighting 493 The engagement lasted the entire day and resulted in the death of two KLA soldiers 494 On 20 May 1998 the village of Bokshiq Boksic was shelled from both sides Combat operations continued for the most part of the following day There were Serbian and KLA casualties 495 On 26 May 1998 a very heavy MUP presence was reported on the Peje Pec-Prishtina Pristina road 496 On 29 May 1998 another fight between the Serbian forces and the KLA broke out in Llapushnik Lapusnik 497 The fighting began at 0700 hours and continued until 2100-2200 hours 498 150 On 29 May 1998 by an order of the command of the Pristina Corps at least five or six Brigades of the Pristina Corps were put on full combat readiness They were prepared to deploy and conduct combat operations on a very short notice 499 In the expert opinion of Philip Coo this order indicated that the command of the Pristina Corps had assessed that the situation was extremely tense because putting the units in full combat readiness tires the troops and involves a lot of resources 500 151 On 31 May 1998 an estimated 300 Serbian special police attacked the village of Novi Poklek located near Gllogoc Glogovac 501 Ten men were seized by the police during the attack one of whom was found later that day dead The other nine were missing 502 152 At the end of May 1998 Serbian police and VJ forces launched a major offensive against a series of villages on the Kosovo-Albanian border which appears to have been intended to cut off the supply routes of the KLA 503 Villages from Peje Pec in the north to Gjakove Djakovica in the south were shelled even though civilians were still present and were later systematically destroyed 504 492 493 494 495 496 497 498 499 500 501 502 503 504 John Crosland T 1925 Exhibit P92 tab 19 Ruzhdi Karpuzi T 3072-3074 Ruzhdi Karpuzi T 3072-3074 L95 T 4198-4201 Exhibit P92 tab 20 L64 T 4361-4363 Elmi Sopi T 6726-6728 Elmi Sopi T 6726-6728 Philip Coo T 5720-5721 Philip Coo T 5720-5721 Exhibit P212 tab 5 p 33 Exhibit P212 tab 5 p 33 Exhibit P212 tab 5 p 38 Exhibit P212 tab 5 p 38 56 Case No type Case # type date 153 At about the same time towards the end of May 1998 heavy fighting broke out in Decane Decani and Drenica in Western Kosovo 505 In and around Decane Decani the fighting continued for four days 506 Serbian reports claimed that the KLA had besieged the town 507 On 7 June 1998 the Yugoslav Foreign Ministry organised a trip for foreign diplomats and military attaches to the area of Decane Decani 508 A report to the Austrian Federal Ministry of Foreign Affairs provided the following description of the area Decani considerable devastation but by no means as drastic as described by the LDK “80% destroyed” “a second Vukovar” the town appeared dead coffee-house patrons on the main square—some of them from Babaloq see below —looked as though they were “on show” most Kosovars seem to have left the town atmosphere seems tense strong police presence and fortifications in the town armoured tanks several fortified police stations in the surrounding area a strikingly small number of bullet holes and other points of impact and many fire-damaged houses mostly only the upper floor —probably arson according to military colleagues-mutual accusations that this has been done for reasons of ethnic cleansing colleagues who visited the Drenica region in March reported comparatively little destruction no shelling with heavy weaponry 509 154 Reports from the end of May and early June 1998 disclose clashes taking place closer to the capital Prishtina Pristina 510 Towards the end of May 1998 there were reports of attacks on the police checkpoint at Komaran Komorane 21 km west of Prishtina Pristina on the Peje PecPrishtina Pristina road and further clashes at Sllatine Slatina close to Prishtina Pristina airport 511 155 On or about 8 June 1998 the village of Popoc Popovac located near Gjakove Djakovica came under attack as a result of which a VJ soldier was killed and three were wounded 512 Armed Kosovo Albanians attacked two Serbian villages in the Drenica valley Banje Banja and Suhogerlle Suvo Grlo where the fighting continued for several hours 513 156 On 14 June 1998 fighting broke out in Carraleve Crnoljevo 514 The Serbian forces were equipped with tanks “Pragas ” heavy mortar guns machine-guns and rocket launchers 515 The fighting lasted at least three hours 516 although there is evidence that it went on for the entire day 517 505 506 507 508 509 510 511 512 513 514 515 516 517 Exhibit P92 tabs 20 and 21 John Crosland T 1929 Exhibit P92 tab 21 Exhibit P92 tab 21 Jan Kickert T 698-699 Exhibit P60 Exhibit P60 Jan Kickert T 698-699 See John Crosland T 1931-1932 Exhibit P92 tab 21 Exhibit P92 tab 23 Exhibit P92 tabs 22 and 23 Ramadan Behluli T 2795-2801 Ramiz Qeriqi T 3582-3584 See also John Crosland T 1931-1932 Exhibit P92 tab 22 and 24 Ramiz Qeriqi T 3583-3584 Ramadan Behluli T 2856 Ramiz Qeriqi T 3583 57 Case No type Case # type date The Serbian forces suffered casualties 518 while it appeared that no one on the KLA side was injured 519 157 On 18 June 1998 incidents were reported on the Kosovo-Macedonian border as a result of which three Serbian policemen may have been killed 520 A Serbian soldier and a policeman were killed in Carraleve Crnoljevo on 18 June 1998 521 158 A regular operative report from the VJ Military Territorial Organisation in Kosovo to the 3rd Army dated 16 June 1998 described a KLA attack on the police station in Runik Rudnik Skenderaj Srbica 522 During the attack the KLA used rocket launches an indication of their ability to conduct more sustainable operations 523 At the second half of June 1998 the MUP was forced to abandon most checkpoints in the area around Klina-e-Eperme Gornja Klina Kluvanje Durakovac and Runik Rudnik 524 There were reports of attacks in Fushe Kosova Kosovo Polje five km from Prishtina Pristina 525 Reports disclose that by this time KLA controlled about 35% of the territory of Kosovo and was able to operate in 65% of it 526 159 On or about 23 June 1998 the KLA took control of a coal mine and the village of Bardhi-i- Madh Veliki Belacevac 10 km west of Prishtina Pristina 527 Shooting could be heard in the area for the entire day and Kosovo Albanian residents were reported to have fled to Prishtina Pristina 528 Some reports indicated that the KLA had issued an appeal to local people not to abandon their homes as the KLA would guarantee their security 529 About a week later the Serbian forces attempted to retake the mine 530 Reports indicate that the Serbian forces used tear gas that automatic gunfire and explosions were heard in the area and that security forces the VJ and armed Serbian civilians were involved in this operation 531 This was the first action in which the participation of the VJ was officially confirmed by the Serbian side 532 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 Ramiz Qeriqi T 3582-3583 Ramadan Behluli T 2855 Exhibit P92 tab 27 John Crosland T 1939 John Crosland T 1937 Philip Coo T 5723 Philip Coo T 5723 John Crosland T 1941-1942 John Crosland T 1943 Exhibit P92 tab 29 John Crosland T 1941 John Crosland T 1937-1938 1945-1950 Exhibit P92 tab 30 Exhibit P92 tab 30 Exhibit P92 tab 30 Exhibit P92 tab 32 Exhibit P62 Jan Kickert T 710 Exhibit P92 tab 32 Exhibit P62 Jan Kickert T 710 58 Case No type Case # type date 160 At about the same time fighting took place in Kline Klina 533 The KLA sought to take control of some Serbian villages in the area and thus to open up a corridor between Drenica and Decane Decani Around 800 Serbs were reported to have fled to Kline Klina from the neighbouring villages 534 At the end of June 1998 a blockade was set up by the KLA on the village of Kijeve Kijevo located along the main Peje Pec-Prishtina Pristina road 535 161 On 23 June 1998 further fighting took place in Carraleve Crnoljevo 536 The Serbian forces were equipped with tanks two of which were damaged during the fighting which lasted approximately two to three hours 537 Fighting continued in early July 1998 538 On Ramiz Qeriqi’s evidence between 17 June and 25 July 1998 there were six episodes of fighting in this Kroimire Krajmirovce area all of which were successful for the KLA 539 162 On 19 July 1998 the KLA offensive was launched in Rahovec Orahovac an operation described as the KLA’s first major attack on a larger city 540 Evidence suggests that the fighting started locally without the authorisation of the KLA’s General Staff but following the commencement of the attack the General Staff supported the operation 541 The KLA captured approximately 85 ethnic Serbs Reports indicate that 40 of them were never seen again 542 The Monastery of St Cosmas and Damian in Zozishte Zociste village where some elderly Serbs took refuge during the fighting was attacked with light artillery and machine guns for 45 minutes and the guest house was damaged by two grenades 543 Rahovec Orahovac remained under the KLA’s control until the Serbian forces retook the town on 21 July 1998 544 163 Fighting between the Serbian forces and the KLA continued throughout the month of July 1998 A major offensive was undertaken by Serbian forces on 24 July 1998 in the area of Llapushnik Lapusnik Komaran Komorane and east of Kline Klina 545 In the battle at Llapushnik Lapusnik on 25 and 26 July 1998 the Serbian forces used heavy military weaponry such as tanks 220 mm cannons and “Katyusha” rockets 546 The fighting continued the entire day 533 534 535 536 537 538 539 540 541 542 543 544 545 546 Exhibit P92 tab 30 Exhibit P92 tab 30 Exhibit P61 Jan Kickert T 707 Philip Coo T 5731-5734 Ramadan Behluli T 2816-2817 Ramadan Behluli T 2816-2817 Jaqup Kraniqi T 3345-3351 Ramiz Qeriqi T 3584-3587 Exhibit P212 tab 5 p 79 Peter Boukaert T 5578 See also Jakup Krasniqi T 3486 Jakup Krasniqi T 3415-3417 Exhibit P212 tab 5 p 79 Exhibit P212 tab 5 p 79 Peter Boukaert T 5578-5579 Philip Coo T 5743 John Crosland T 1965-1967 Exhibit P92 tab 36 See supra paras 78-82 59 Case No type Case # type date on 25 July and on 26 July 1998 until the KLA forces withdrew from the area 547 Llapushnik Lapusnik village then came under Serbian control At about the same time there was a fighting in Zborc Zborce and in Carraleve Crnoljevo 548 164 As discussed earlier the Serbian forces engaged in Kosovo in 1998 consisted primarily of units of the VJ and the MUP The VJ was represented primarily by the Pristina Corps which had a number of subordinated active armoured motorised and artillery brigades and reported to the 3rd Army which was in turn subordinated to the General Staff of the VJ 549 Elements of the 63rd parachute brigade 72nd special forces brigade and 1st armoured brigade from Belgrade were also deployed along Kosovo’s western border 550 A heavy VJ presence was observed in Kosovo by the end of April 1998 551 552 21 April 1998 A forward command post of the Pristina Corps was set up on At the end of April 1998 in the area of Drenica six artillery battery positions had been established which indicates that the VJ was providing fire support to the ongoing field operations which at that time were conducted by the police in the area 553 In mid May 1998 the VJ alone had almost 2000 personnel assigned to securing the border areas of Kosovo and another 2500 for “in-depth control of territory ”554 165 The MUP forces consisted of the Special Police Units “PJP” which were equipped with armoured personnel carriers heavy machine guns and mortars among other weapons the Special Anti-Terrorist Unit “SAJ” and the Special Operations Unit “JSO” 555 There were also the socalled local defence units organisations formed to defend villages and small towns which were composed of civilians MUP reservists and representatives of the military territorial district 556 In June 1998 by a decision of President Slobodan Milo evi a Joint Command for Kosovo was formed in order to ensure coordination and consistency between the Serbian political institutions the civil affairs institutions the MUP and the VJ forces involved in Kosovo 557 166 As discussed earlier tanks and armoured vehicles heavy artillery weapons air defence systems APCs machine guns and explosives among other weapons were used in the conflict There is also evidence that landmines were used in Kosovo in 1998 In September 1998 landmines 547 548 549 550 551 552 553 554 555 556 557 See supra paras 80-82 Ramiz Qeriqi T 3584 3590-3592 Exhibit P230 paras 4-6 Philip Coo T 5694-5695 John Crosland T 1890 Philip Coo T 5694-5696 John Crosland T 1897-1900 Philip Coo T 5711-5714 Exhibit P230 paras 27-28 John Crosland T 1900 Exhibit P230 para 27 Exhibit P230 paras 8-12 Philip Coo T 5597-5599 John Crosland T 1872 Exhibit P230 paras 15-21 Philip Coo T 5702-5703 Exhibit P 230 para 17 Philip Coo T 5704 60 Case No type Case # type date exploded on a road south of Likofc Likovac in the Drenica area 558 It is not clear however that these were laid by Serbian forces Likofc Likovac used to be a stronghold of the KLA and there is some suggestion that the mines had been planted earlier by Kosovo Albanians 559 167 The conflict in Kosovo in the relevant period resulted in a large number of people being displaced The UNHCR in Podgorica reported in early May 1998 that 5 000 civilians have fled to Montenegro from Kosovo in recent weeks 800 of whom had fled in the first days of May 1998 560 On 26 June 1998 the same source reported that there were then 11500 refugees from Kosovo formally registered in Montenegro and their number was then estimated to reach 15000 561 168 The Defence submit that a series of regionally disparate and temporally sporadic attacks carried out over a broad and contested geographic area should not be held to amount to an armed conflict 562 In the Chamber’s view the acts of violence that took place in Kosovo from the end of May 1998 at least until 26 July 1998 are not accurately described as temporally sporadic or geographically disperse As discussed in the preceding paragraphs periodic armed clashes occurred virtually continuously at intervals averaging three to seven days over a widespread and expanding geographic area 563 169 The Defence further submit that a purely one-sided use of force cannot constitute protracted armed violence which will found the beginning of an armed conflict 564 In the Chamber’s view this proposition is not supported by the facts established in this case While the evidence indicates that the KLA forces were less numerous than the Serbian forces less organised and less prepared and were not as well trained or armed the evidence does not suggest that the conflict was purely onesided KLA attacks were carried out against a variety of Serbian military community and commercial targets over a widespread and expanding area of Kosovo 565 Further KLA forces were able to offer strong and often effective resistance to Serbian forces undertaking military and police operations 566 While very large numbers of Serbian forces well equipped were deployed in the relevant areas of Kosovo during the period relevant to the Indictment the KLA enjoyed a significant level of overall military success tying up the Serbian forces by what were usually very effective guerrilla-type tactics 558 559 560 561 562 563 564 565 566 Exhibit P212 tab 5 p 49 Exhibit P212 tab 5 pp 49 75 Exhibit P92 tab 15 Exhibit P92 tab 31 Defence Final Brief para 204 See also Limaj Defence Pre-trial Brief para 15 Musliu Defence Pre-Trial Brief para 15 See supra paras 136-163 Defence Skeleton Argument on the Jurisdictional Issue of Armed Conflict para 27 See supra paras 147 158 159 and 162 See supra paras 76 142 149 153 155 156 159 and 161 61 Case No type Case # type date 170 Finally the Defence submit that the strength of the Serbian forces does not indicate that their purpose was to defeat the KLA but to ethnically cleanse Kosovo 567 While it is true that civilians were driven out of their homes and forced to leave Kosovo as a result of military operations the evidence discloses this to be true for both sides Undoubtedly civilians fled as their homes and villages were ravaged and in some cases armed units of both sides set about ensuring this It is not apparent to the Chamber however that the immediate purpose of the military apparatus of each side during the relevant period was not directed to the defeat of the opposing party even if some further or ultimate objective may also have existed The two forces were substantially engaged in their mutual military struggle While the Serbian forces were far more numerous and better trained and equipped it appears they were ill-prepared to deal effectively with small guerrilla type forces that would not engage them in prolonged fixed engagements Serbian military intelligence may also have overestimated the strength and capability of the KLA at the time so that the Serbian forces were arraigned in greater number and with greater military resources than was warranted by the actual KLA forces In this respect as revealed by the evidence many combat operations were carried out in the area of Drenica where the KLA developed earlier and was probably best organised But most importantly in the Chamber’s view the determination of the existence of an armed conflict is based solely on two criteria the intensity of the conflict and organisation of the parties the purpose of the armed forces to engage in acts of violence or also achieve some further objective is therefore irrelevant iii Conclusion 171 The Chamber is satisfied that before the end of May1998 an armed conflict existed in Kosovo between the Serbian forces and the KLA By that time the KLA had a General Staff which appointed zone commanders gave directions to the various units formed or in the process of being formed and issued public statements on behalf of the organisation 568 Unit commanders gave combat orders and subordinate units and soldiers generally acted in accordance with these orders 569 Steps have been established to introduce disciplinary rules and military police 570 as well as to recruit train and equip new members 571 Although generally inferior to the VJ and MUP’s equipment the KLA soldiers had weapons which included artillery mortars and rocket launchers 572 By July 1998 the KLA had gained acceptance as a necessary and valid participant in 567 568 569 570 571 572 Closing Arguments T 7490 See supra paras 94 96 98 99 100 and 101-103 See supra paras 105 and 109 See supra paras 110-112 and 113-116 See supra paras 118-120 See supra paras 121 122 and 158 62 Case No type Case # type date negotiations with international governments and bodies to determine a solution for the Kosovo’s crisis and to lay down conditions in these negotiations for refraining from military action 573 172 Further by the end of May 1998 KLA units were constantly engaged in armed clashes with substantial Serbian forces in areas from the Kosovo-Albanian border in the west to near Prishtina Pristina in the east to Prizren Prizren and the Kosovo-Macedonian border in the south and the municipality of Mitrovice Kosovka Mitrovica in the north 574 The ability of the KLA to engage in such varied operations is a further indicator of its level of organisation Heavily armed special forces of the Serbian MUP and VJ forces were committed to the conflict on the Serbian side and their efforts were directed to the control and quelling of the KLA forces Civilians both Serbian and Kosovo Albanian had been forced by the military actions to leave their homes villages and towns and the number of casualties was growing 173 In view of the above the Chamber is persuaded and finds that an internal armed conflict existed in Kosovo before the end of May 1998 This continued until long after 26 July 1998 174 Further in view of its findings made elsewhere in this decision the Chamber is satisfied that the requisite nexus between the conduct alleged in the Indictment and the armed conflict has been established In particular the Chamber refers to its findings that the prison camp where the alleged crimes occurred was 575 Llapushnik Lapusnik established after the KLA took 576 that it was run by KLA members control of the village of and that the camp effectively ceased to exist after the KLA lost control of the Llapushnik Lapusnik gorge 577 Those detained in it were principally if not solely those who were or who were suspected of being Serbians or Kosovo Albanians who collaborated with the Serbian authorities 2 The Four Tadi conditions 175 The jurisprudence of the Tribunal has established that for an offence to fall under the scope of Article 3 of the Statute four conditions must be met i the violation must constitute an infringement of a rule of international humanitarian law ii the rule must be customary in nature or if it belongs to treaty law the required conditions must be met iii the violation must be serious that is to say that it must constitute a breach of a rule protecting important values and the breach must involve grave consequences for the victim 573 574 575 576 577 See supra paras 125-129 See supra paras 144-163 See supra para 76 See infra paras 273 and 276 See infra para 278 63 Case No type Case # type date iv the violation of the rule must entail under customary or conventional law the individual criminal responsibility of the person breaching the rule 578 176 In the present case the three Accused are charged with four counts of violations of the laws and customs of war pursuant to Article 3 of the Statute namely two counts of cruel treatment one count of torture and one count of murder All four counts are based on Common Article 3 of the 1949 Geneva Conventions It is settled by the Appeals Chamber that violations of Common Article 3 fall within the scope of Article 3 of the Statute 579 In particular it is settled jurisprudence that Common Article 3 forms part of customary international law 580 that customary international law imposes criminal liability for serious violations of Common Article 3 581 and that serious violations of Common Article 3 would at once satisfy the four Tadi conditions 582 Further as Common Article 3 protects persons taking no active part in the hostilities the victims of the alleged violation must have taken no active part in the hostilities at the time the crime was committed 583 177 The Defence dispute the decisions of the Appeals Chamber and submit that the criminalisation of Common Article 3 has not yet acquired the status of customary international law 584 In particular they dispute that state practice and opinio juris establish criminal liability for violations of Common Article 3 585 and that the 1949 Geneva Conventions provide a basis for criminalising violations of Common Article 3 586 and submit that international humanitarian law distinguishes between international and internal armed conflicts and therefore individual criminal responsibility for non-state actors may not be attached at international level 587 The Defence submit that criminal responsibility for violations of Common Article 3 may violate the principle of nullum crimen sine lege as the criminalisation of Common Article 3 did not amount to a true reflection of customary international law at the time 588 It is submitted further that pursuant to the test established in Aleksovski Appeal Judgement the interests of justice require a departure from the previous rulings of the Appeals Chamber 589 178 The status of the decisions of the Appeals Chamber was established in the Aleksovski Appeal Judgement Pursuant to this decision the ratio decidendi of the decisions of the Appeals 578 579 580 581 582 583 584 585 586 587 588 589 Tadić Jurisdiction Decision para 94 See also Aleksovski Appeals Judgement para 20 Kunarac Appeals Judgement para 66 Tadi Jurisdiction Decision para 89 elebi i Appeals Judgement para 136 Kunarac Appeals Judgement para 68 Tadić Jurisdiction Decision para 98 Kunarac Appeals Judgement para 68 Tadi Jurisdiction Decision para 134 elebi i Appeals Judgement paras 153-174 elebi i Appeals Judgement para 125 Kunarac Appeals Judgement para 68 elebi i Appeals Judgement para 420 Blagojevi Trial Judgement para 540 Kvo ka Trial Judgement para 124 and Jelisić Trial Judgement para 34 Defence Skeleton Argument on the Jurisdictional Issue of Armed Conflict paras 47-58 Defence Skeleton Argument on the Jurisdictional Issue of Armed Conflict paras 50-52 Defence Skeleton Argument on the Jurisdictional Issue of Armed Conflict para 55 Defence Skeleton Argument on the Jurisdictional Issue of Armed Conflict paras 56-57 Defence Skeleton Argument on the Jurisdictional Issue of Armed Conflict paras 58-59 Defence Skeleton Argument on the Jurisdictional Issue of Armed Conflict para 48 64 Case No type Case # type date Chamber is binding on Trial Chambers 590 The Appeals Chamber should follow its previous decisions but should be free to depart from them for cogent reason in the interests of justice 591 Contrary to the submissions of the Defence Trial Chambers may not depart from previous rulings of the Appeals Chamber 179 In view of the above the Chamber finds no need to discuss the Defence submissions in this respect any further It will proceed on the basis of the Appeals Chamber jurisprudence establishing that with respect to serious violations of Common Article 3 the four Tadi conditions are met The Chamber refers to its findings made elsewhere that the victims detained in the prison camp were not at the relevant time taking an active part in the hostilities 592 and therefore finds that in the present case the jurisdictional prerequisites of Article 3 of the Statute have been established B Jurisdiction under Article 5 1 Law 180 A crime listed in Article 5 of the Statute constitutes a crime against humanity only when “committed in armed conflict” 593 This requirement translates into a need for proof that there was an armed conflict at the relevant time and place and that objectively the acts of the accused are linked geographically as well as temporally with the armed conflict 594 Proof of a nexus between the underlying crimes and the armed conflict is not required Although the acts or omissions must be committed in the course of an armed conflict the only nexus required is that between the acts of an accused and the attack on the civilian population a concept discussed in the following paragraphs 595 181 To qualify as crimes against humanity the acts of an accused must be part of a widespread or systematic attack “directed against any civilian population” It is established in the jurisprudence of the Tribunal that the general elements required for the applicability of Article 5 of the Statute are that i there must be an attack ii the acts of the perpetrator must be part of the attack iii the attack must be directed against any civilian population iv the attack must be widespread or systematic and v the perpetrator must know that his or her acts constitute part of a pattern of widespread or systematic crimes directed against a civilian population and know that his or her acts 590 591 592 593 594 595 Aleksovski Appeals Judgement para 113 Aleksovski Appeals Judgement para 107 See infra paras 279 331 340 348 359 367 376 384 398 410 415 419 423 427 430 433 436 440 and 444 Kunarac Appeals Judgement paras 82 and 86 Tadić Appeals Judgement para 251 Kunarac Appeals Judgement para 83 Kordić Trial Judgement para 23 Kordić Trial Judgement para 33 65 Case No type Case # type date fit into such a pattern i e knowledge of the wider context in which his or her acts occur and knowledge that his or her acts are part of the attack 596 182 The concepts of “attack” and “armed conflict” are distinct and separate notions although under Article 5 of the Statute the attack on any civilian population may be part of an armed conflict 597 An attack has been defined as a course of conduct involving the commission of acts of violence 598 Perhaps more usefully in the context of a crime against humanity the term “attack” is not limited to the use of armed force but also encompasses any mistreatment of the civilian population 599 It can precede outlast or continue during the armed conflict thus it may be but need not be part of the armed conflict as such 600 183 The attack must be either widespread or systematic the requirement being disjunctive rather than cumulative 601 The term “widespread” refers to the large scale nature of the attack and the number of victims while the phrase “systematic” refers to the organised nature of the acts of violence and the improbability of their random occurrence 602 The Appeals Chamber has stated that patterns of crimes namely the non-accidental repetition of similar criminal conduct on a regular basis are a common expression of such systematic occurrence 603 In the Appeals Chamber’s view “the assessment of what constitutes a ‘widespread’ or ‘systematic’ attack is essentially a relative exercise in that it depends upon the civilian population which allegedly was being attacked A Trial Chamber must therefore ‘first identify the population which is the object of the attack and in light of the means methods resources and result of the attack upon the population ascertain whether the attack was indeed widespread or systematic’ The consequences of the attack upon the targeted population the number of victims the nature of the acts the possible participation of officials or authorities or any identifiable patterns of crimes could be taken into account to determine whether the attack satisfies either or both requirements of a ‘widespread’ or ‘systematic’ attack vis-à-vis this civilian population ”604 184 The existence of a policy or plan or that the crimes were supported by a policy or plan to carry them out may evidentially be relevant but is not a legal requirement to establish the widespread or systematic nature of the attack and that it was directed against a civilian population 605 596 597 598 599 600 601 602 603 604 605 Kunarac Appeals Judgement para 85 Vasiljević Trial Judgement para 30 Kunarac Appeals Judgement para 86 Naletilić Trial Judgement para 233 Kunarac Appeals Judgement para 86 Vasiljević Trial Judgement paras 29-30 Kunarac Appeals Judgement para 86 Kunarac Appeals Judgement para 97 Naletilić Trial Judgement para 236 Kunarac Trial Judgement para 431 Kordić Appeals Judgement para 94 The Chamber notes that once it is convinced that either requirement is met it is not obliged to consider whether the alternative qualifier is also satisfied Kunarac Appeals Judgement para 93 Bla ki Appeals Judgement para 101 Bla ki Appeals Judgement para 101 citing Kunarac Appeals Judgement para 94 Kunarac Appeals Judgement para 95 footnotes omitted Kunarac Appeals Judgement para 98 101 The Appeals Chamber considered that “neither the attack nor the acts of the accused needs to be supported by any form of ‘policy’ or ‘plan’ … It may be useful in establishing that the 66 Case No type Case # type date 185 The attack must be directed against a civilian population As the Appeals Chamber has held “ t he expression ‘directed against’ is an expression which ‘specifies that in the context of a crime against humanity the civilian population is the primary object of the attack ’ In order to determine whether the attack may be said to have been so directed the Trial Chamber will consider inter alia the means and method used in the course of the attack the status of the victims their number the discriminatory nature of the attack the nature of the crimes committed in its course the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war To the extent that the alleged crimes against humanity were committed in the course of an armed conflict the laws of war provide a benchmark against which the Chamber may assess the nature of the attack and the legality of the acts committed in its midst ”606 186 The Chamber recalls that there is an absolute prohibition against targeting civilians in customary international law 607 The terms “civilian population” must be interpreted broadly and refers to a population that is predominantly civilian in nature A population may qualify as “civilian” even if non-civilians are among it as long as it is predominantly civilian 608 The presence within a population of members of resistance armed groups or former combatants who have laid down their arms does not as such alter its civilian nature 609 As a result the definition of a “civilian” is expansive and includes individuals who at one time performed acts of resistance as well as persons who were hors de combat when the crime was committed 610 Relevant to the determination whether the presence of soldiers within a civilian population deprives the population 606 607 608 609 610 attack was directed against a civilian population and that it was widespread or systematic especially the latter to show that there was in fact a policy or plan but it may be to prove these things by reference to other matters ” The Appeals Chamber therefore tempered the finding of the Blaškić Trial Chamber with respect to the requirement of the existence of a plan or policy Note that the Trial Chamber in Blaškić held that “the systematic character refers to four elements which for the purposes of this case may be expressed as follows 1 the existence of a political objective a plan pursuant to which the attack is perpetrated or an ideology in the broad sense of the word that is to destroy persecute or weaken a community 2 the perpetration of a criminal act on a very large scale against a group of civilians or the repeated and continuous commission of inhumane acts linked to one another 3 the preparation and use of significant public or private resources whether military or other 4 the implication of high-level political and or military authorities in the definition and establishment of the methodical plan para 203 The Appeals Chamber held that the existence of a plan or policy may be evidentially relevant but it is not a legal element of the crime Blaškić Appeals Judgement paras 100 and 120 Kunarac Appeals Judgement para 91 footnotes omitted Naletilić Trial Judgement para 235 Bla ki Appeals Judgement para 109 Jelisić Trial Judgement para 54 Kupreškić Trial Judgement paras 547-549 Naletilić Trial Judgement para 235 Kordić Trial Judgement para 180 Kupreškić Trial Judgement para 549 Blaškić Trial Judgement para 214 Jelisić Trial Judgement para 54 Blaškić Appeals Judgement para 113 The Trial Chamber in that case was of the view para 214 that the term ‘civilian’ population encompasses members of a resistance movement as well as former combatants regardless of whether they wore uniform or not provided they were no longer taking part in hostilities when the alleged crimes were perpetrated because they had either left the army or were no longer bearing arms or ultimately had been placed hors de combat in particular due to their wounds or their being detained See also Jelisić Trial Judgement para 54 Kordić Trial Judgement para 180 and Naletilić Trial Judgement para 235 Galić Trial Judgement para 143 67 Case No type Case # type date of its civilian character are the number of soldiers as well as whether they are on leave 611 There is no requirement that the victims are linked to any particular side of the conflict 612 187 It has been emphasised in the jurisprudence of this Tribunal that the word “population” does not mean that the entire population of the geographical entity in which the attack is taking place must have been subjected to that attack 613 It is established that the targeting of a select group of civilians – for example the targeted killing of a number of political opponents – cannot satisfy the requirements of Article 5 It is sufficient to show that enough individuals were targeted in the course of the attack or that they were targeted in such a way as to satisfy the Chamber that the attack was in fact directed against a civilian “population” rather than against a limited and randomly selected number of individuals 614 188 As the Appeals Chamber held in Kunarac the required nexus between the acts of the accused and the attack in effect consists of two elements - the commission of an act which by its nature or consequences is objectively part of the attack and - knowledge on the part of the accused that there is an attack on the civilian population and that his or her act is part thereof 615 189 First it must be proved that the alleged crimes were related to the attack on a civilian population occurring during an armed conflict In other words it must be established that the acts of the accused are not isolated 616 but rather by their nature and consequence are objectively part of the attack 617 The acts need not be committed in the midst of that attack provided that they are 611 612 613 614 615 616 617 Blaškić Appeals Judgement para 115 Vasiljević Trial Judgement para 33 Blaškić Appeals Judgement para 109 Gali Trial Judgement para 143 In determining the scope of the term “civilian population ” it is necessary to ascertain the state of customary law in force at the time the crimes were committed by taking into account in particular Article 50 of Additional Protocol I which provisions may largely be viewed as reflecting customary law and are therefore relevant to the consideration at issue under Article 5 of the Statute See Kordić Appeals Judgement para 97 Kunarac Appeals Judgement para 90 Tadić Appeals Judgement para 271 Kunarac Appeals Judgement para 99 Blaškić Appeals Judgement para 126 Kordić Appeals Judgement paras 99-100 Kunarac Appeals Judgement paras 99-102 A crime would be regarded as an ‘isolated act’ when it is so far removed from the attack that having considered the context and circumstances in which it was committed it cannot reasonably be said to have been part of the attack Kunarac Appeals Judgement para 100 Kunarac Appeals Judgement para 96 Kordić Trial Judgement para 178 68 Case No type Case # type date sufficiently connected to that attack 618 Only the attack not the individual acts of the accused must be widespread or systematic 619 190 The second requirement to be established as part of the “nexus” requirement is the knowledge of the accused that there is an attack on a civilian population and that his or her acts are part thereof Evidence of knowledge depends on the facts of a particular case as a result the manner in which this legal element may be proved may vary from case to case 620 It does not suffice that an accused knowingly took the risk of participating in the implementation of a policy 621 Nevertheless the accused need not know the details of the attack or approve of the context in which his or her acts occur 622 The accused merely needs to understand the overall context in which his or her acts took place 623 The motives for the accused’s participation in the attack are irrelevant624 as well as whether the accused intended his or her acts to be directed against the targeted population or merely against his or her victim as it is the attack not the acts of the accused which must be directed against the targeted population and the accused need only know that his or her acts are parts thereof 625 2 Findings 191 The nature of the “attack” alleged by the Prosecution in this case covers a set of circumstances considerably different from those considered previously by this Tribunal when dealing with the application of Article 5 Due to structural factors and organisational and military capabilities an “attack directed against a civilian population” will most often be found to have occurred at the behest of a State Being the locus of organised authority within a given territory able to mobilise and direct military and civilian power a sovereign State by its very nature possesses the attributes that permit it to organise and deliver an attack against a civilian population it is States which can most easily and efficiently marshal the resources to launch an attack against a civilian population on a “widespread” scale or upon a “systematic” basis In contrast the factual situation before the Chamber involves the allegation of an attack against a civilian population perpetrated by a non-state actor with extremely limited resources personnel and organisation 618 619 620 621 622 623 624 625 Tadić Jurisdiction Decision para 251 para 271 Naletilić Trial Judgement para 234 Kunarac Appeals Judgement para 100 Kordić Appeals Judgement para 94 Blaškić Appeals Judgement para 126 Bla ki Appeals Judgement paras 125-126 Kunarac Appeals Judgement para 102 Kordić Trial Judgement para 185 Tadić Appeals Judgement paras 248-272 quoted in Kunarac Appeals Judgement para 103 the Appeals Chamber considered that “ a t most evidence that acts were committed for purely personal reasons could be indicative of a rebuttable assumption that he was not aware that his acts were part of that attack ” Kunarac Appeals Judgement para 103 69 Case No type Case # type date 192 The Prosecution alleges the existence of a pattern of KLA attacks against civilians over a wide geographical area of Kosovo sufficient to constitute a widespread or systematic attack 626 The Defence assert that the Prosecution has failed to prove that any attacks on civilians in Kosovo other than those committed by Serbian forces against Kosovo Albanians and which are not the subject of this Indictment demonstrated a widespread or systematic character 627 193 Before turning to consider the KLA’s conduct the Chamber would emphasise at the outset that the existence of an attack from one side involved in an armed conflict against the other side’s civilian population does not justify an attack by that other side against the civilian population of its opponent 628 The tu quoque principle has no application 629 Nevertheless the Chamber is conscious of the operations of the Serbian forces in Kosovo which deployed tactics that included the razing of villages and the expulsion of civilians from villages and which caused considerable and widespread civilian suffering 630 194 It has been emphasised repeatedly that the contextual element required for the application of Article 5 serves to exclude single random or limited acts from the domain of crimes against humanity 631 As already noted 632 to amount to an “attack” the relevant conduct need not amount to a military assault or forceful takeover the evidence need only demonstrate a “course of conduct” directed against the civilian population that indicates a widespread or systematic reach Nevertheless the existence of an attack is most clearly evident when a course of conduct is launched on the basis of massive state action This can be seen from a number of examples In Prosecutor v Nikoli the Trial Chamber looked to the existence of discriminatory measures and an “authoritarian take-over” that installed a new “authoritarian power structure” as evidence of an attack in the relevant geographical region 633 In Prosecutor v Mrk i et al the Trial Chamber looked to as relevant factors in discerning the existence of an attack a number of factors that included the “massive land naval and air offensive by the forces of the JNA” intensive shelling of the city of Vukovar for a period of three months and the deportation of women and children en masse 634 626 627 628 629 630 631 632 633 634 Prosecution Final Brief para 264 Defence Final Brief para 369 Kunarac Appeals Judgement para 87 citing Kupre ki Trial Judgement para 765 Kupre ki Trial Judgement para 765 John Crosland T 1871 1920 1926 International Law Commission 1996 Draft Code of Crimes Against the Peace and Security of Mankind commentary on Article 18 Tadi Trial Judgement paras 646 648 653 Akayesu Trial Judgement para 579 See supra para 182 Prosecutor v Dragan Nikoli a k a “Jenki” Review of the Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence Case No IT-94-2-R61 20 October 1995 para 27 Prosecutor v Mile Mrk i Miroslav Radi and Veselin ljivan anin Review of Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence Case No IT-95-13-R61 3 April 1996 para 33 70 Case No type Case # type date 195 In contrast to these examples in which the attacking force possessed overwhelming military superiority the situation before the Chamber is markedly different The present charges against members of the KLA involve allegations of an attack directed against a civilian population perpetrated by what may be most aptly described at the time relevant to the Indictment as a guerrilla force engaged in limited combat with superior conventional military forces The Chamber has found that the conditions existing during the timeframe contemplated by the Indictment were sufficient to give rise to a situation of internal armed conflict 635 That internal armed conflict was fluid in nature Each opposing force maintained control over different areas in Kosovo for short periods of time 636 There were frequent transfers of territory and localised pitched battles between the KLA and the Serbian forces were fought for one two or three days throughout May June and July 1998 This was due partly to the greater resources available to the Serbian forces and partly to the nature of the KLA military structures and objectives As a small though rapidly expanding insurgent force the KLA put less emphasis on holding territory and concentrated on other forms of engagement 637 196 In Peje Pec in March 1998 KLA elements launched acts described by one witness as putative retribution against businesses and businessmen believed to be collaborating with Serbs 638 Businesses were bombed and their proprietors murdered 639 In early April 1998 John Crosland noted Serbian state media reports of large numbers of Serbian families leaving the area of Decane Decani due to continuous harassment by armed Kosovo Albanians 640 While John Crosland stated that these reports were exaggerated he also stated that they also contained some truth 641 The security situation in Kosovo was deteriorating due to actions by both sides 642 197 John Crosland noted that six bodies were found in a forest near Rrahovec Orahovac on 6 April 1998 643 In his assessment these people were probably murdered because of their failure to support the “Albanian cause” but it was impossible to determine this with any certainty because of the “fluid situation” at the time 644 198 On April 23 1998 in Decane Decani and Gjakove Djakovica there were reports of civilians both Serbs and Kosovo Albanians leaving the area because of the increasing intensity of the 635 636 637 638 639 640 641 642 643 644 See supra paras 171-174 John Crosland T 1867 Peter Bouckaert T 5592 Susanne Ringgaard Pedersen T 3538 Peter Bouckaert T 5578-5579 John Crosland T 1867 John Crosland T 1867 John Crosland T 1883 John Crosland T 1883 John Crosland T 1885 John Crosland T 1881 John Crosland T 1882 1890 71 Case No type Case # type date fighting between the two opposing forces in the armed conflict 645 Houses in the Ponoshec Ponosevac area were in a bad state of disrepair as they had been fired at continuously by the Serbian security forces 646 Civilians fled the area in an attempt to find safety due to the density and scale of the fighting on both sides 647 199 Both sides utilised abduction tactics in an attempt to influence the military and strategic contest 648 There were reports of incidents of Kosovo Albanians abducting Serbs which were viewed as an “attempt to gain the upper hand” in circumstances of fluid and shifting sites of engagement 649 The situation began to stabilise slightly in late April 1998 650 The installation of checkpoints was an indication of the increasing stability of the conflict The Serbian authorities armed civilians on occasion 651 and elements of the Serbian forces sometimes dressed in civilian clothing for covert action 652 Both sides also deployed tactics of questioning arrest and detention of civilians as a way of asserting influence over areas in Kosovo 653 The KLA also developed a strategy of attacking the Serbian special police forces operating in Kosovo 654 200 On 30 June 1998 a diplomatic telegram noted that forty Serbs had been kidnapped since the beginning of March 655 John Crosland noted that it was an “ongoing phenomena sic that in order to increase the fear in Serbs they were being kidnapped on a relatively regular basis ”656 Philip Coo agreed that kidnappings were one of the tactics deployed by the KLA and were particularly frequent during June 1998 657 201 On 18 June 1998 a report was issued to the 3rd Army command from Lieutenant Colonel Dragoslav Maksimovi detailing KLA operations against Serbian civilians at the Belacevac Belacevac mine near Kopoliq Obilic 658 The KLA reportedly captured nine ethnic Serbian civilians on their way to work at the mine 659 According to John Crosland the KLA launched attacks from the Drenica valley against Serbian civilians who worked at the Belacevac Belacevac mine 660 There were reports that isolated Serbian homesteads in the area of the mine had been 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 John Crosland T 1887 John Crosland T 1915 John Crosland T 1910-1911 John Crosland T 1940 John Crosland T 1878-1889 John Crosland T 1888-1889 John Crosland T 2033 John Crosland T 2033 John Crosland T 1940 T 2042 Philip Coo T 5725 Fatmir Limaj T 5924 John Crosland T 1951 John Crosland T 1952 Philip Coo T 5725 John Crosland T 1936-1937 T 1945 T 1949-1950 Exhibit P212 tab 5 John Crosland T 1937 72 Case No type Case # type date attacked however these reports were not confirmed 661 On 19 June 1998 there were reports of expulsions of Serbs by Kosovo Albanians in Kline Klina municipality 662 202 According to reports the KLA captured approximately 85 ethnic Serbs apparently civilians or those placed hors de combat during fighting at Rahovac Orahovac on 19 July 1998 663 In this respect it is noted that the KLA later released a number of civilians who had been captured during battle 664 There is evidence that on 22 July 1998 the KLA handed 35 Serbian civilians to the International Committee of the Red Cross 665 The effect of the evidence however is that many persons apparently civilians were not released 203 In addition to the abduction of Serbian civilians in areas of pitched battle a number of civilians were abducted after the introduction of checkpoints in areas of strategic importance to the KLA 666 By May 1998 both the Serbian forces and the KLA had set up checkpoints on main roads 667 Kosovo Albanian civilians were apprehended at KLA checkpoints and detained for questioning or abducted from their homes in the night 668 Individuals abducted and detained were often blindfolded or placed in the boots of cars and driven either to Llapushnik Lapusnik directly or to other premises where they were interrogated before being conveyed to Llapushnik Lapusnik or to another place of detention 669 Those detained were subjected to interrogation at times with physical abuse many were accused of working as spies for the Serbian regime or accused of having knowledge of perceived collaborators operating in Kosovo 670 Detentions occurred not only at Llapushnik Lapusnik The barracks at Jabllanice Jablanica also served as a makeshift prison for those accused of collaboration with Serbian forces 671 The barracks held those perceived to be collaborators and spies 672 The International Committee of the Red Cross was denied access to a number of KLA detainees raising questions about detainees’ safety 673 204 The cumulative effect of this evidence demonstrates the use of insurgent tactics by the KLA in an attempt to gain the upper hand against the Serbian forces in Kosovo which possessed superior military might and were able to deploy greater resources during the conflict 661 662 663 664 665 666 667 668 669 670 671 672 The evidence John Crosland T 1938 John Crosland T 1939-1940 Exhibit P212 tab 5 Exhibit P212 tab5 Peter Bouckaert T 5503-5504 Exhibit P212 tab 5 John Crosland T 1926 L96 T 2283 T 2285 L06 T 978-979 L10 T 2909-2910 Ivan Bakra T 1397-1398 Oleg Safiulin T 1723-1726 L07 T 774-776 L06 T 989-990 L10 T 2913-2917 L96 T 2285-2286 L07 T 779-780 L12 T 1788-1789 see infra paras 243282 L07 T 779 L10 2916-2917 L10 T 2937-2938 Vojko Bakra T 1306-1308 L06 T 1007 L95 T 4255-4260 L95 T 4255-4260 73 Case No type Case # type date demonstrates the existence of a “course of conduct” that indicates that there was a military “attack” in the territory of Kosovo in the period relevant to the Indictment 205 The Prosecution contends that the evidence of the duration and scope of the KLA attack demonstrates that the attack was “directed against” a civilian population 674 The Prosecution further contends that the civilian population was the “primary object of attack ”675 206 There appears to have been a number of abductions of Serbian civilians As far as the evidence discloses in most cases these occurred when an individual in a community or village was suspected of specific conduct adverse to KLA or Kosovo Albanian interests or in some instances were undertaken by independent elements of the KLA not acting pursuant to a general KLA policy or direction 207 Evidence before the Chamber indicates that a number of Serbs were abducted by the KLA who were perceived to have or were suspected of having a role in the political or governmental organs of Serbia especially the military or police with which the KLA was directly engaged in conflict For example Stamen Genov a member of the Serbian forces was severely mistreated by KLA members after he was abducted and later while he was detained Ivan Bakra was told by KLA members inflicting this abuse on Stamen Genov that what was being done to him was similar to the mistreatment administered by the Serbian police to the Kosovo Albanian population 676 It was Stamen Genov’s status as a serving member of the Serbian forces and his link thereby with the Serbian military apparatus which led his attackers to inflict upon him extreme levels of violence 677 Conversely the Bakra s and others who were found after enquiry to have no apparent connections with the Serbian regime were released 678 208 The Chamber accepts that particular Kosovo Albanians were abducted and detained because of their perceived associations with Serbian authorities 679 Kosovo Albanians suspected of collaboration were subjected to discrimination harassment and abuse 680 It was those Kosovo Albanians with perceived links with the Serbian military or police regime who were singled out for especially severe treatment in detention Those accused of collaboration were referred to as “spies”681 or as “traitors to their people ”682 Both L06 and L10 were asked when being interrogated 673 674 675 676 677 678 679 680 681 Exhibit P212 tab 5 Peter Bouckaert T 5503 Prosecution Final Brief para 374 Prosecution Final Brief para 374-375 Ivan Bakra T 1428 Vojko Bakra T 1301 Ivan Bakra T 1407-1408 Vojko Bakra T 1348-1351 Ivan Bakra T 1474-1476 Peter Bouckaert T 5488-5489 Exhibit P212 tab 5 John Crosland T 1867 T 1883 Susanne Ringgaard Pedersen T 3507 L10 T 2916-2917 L64 T 4504 74 Case No type Case # type date at Llapushnik Lapusnik about perceived spies and those alleged to have collaborated with Serbs in their village 683 209 In total the International Committee of the Red Cross documented the abduction of 138 Serbs apparently civilians or those placed hors de combat whom it was believed were in KLA custody 684 Human Rights Watch estimated that from late February 1998 to late September 1998 between 100 and 140 Kosovo Albanians Serbs and Roma apparently civilians or those placed hors de combat were abducted by KLA forces 685 Most of these abductions took place in Drenica in Malisheve Malisevo and in Rrahovec Orahovac 686 Aside from Serbian civilians affected by direct combat between the KLA and Serbian forces there were also instances of Serbian civilians being apprehended at KLA checkpoints and removed from buses 687 The specific factual circumstances surrounding some such abductions are detailed further in this Judgement and need not be discussed in detail here 688 As will be apparent from other parts of this Judgement there is no evidence as to the circumstances in which a number of persons of Serbian ethnicity who were apparently civilians came to be in KLA custody except insofar as some of these kidnapped persons at least may in fact have been detained in Llapushnik Lapusnik and are the subject of specific evidence considered in this Judgement 210 History confirms regrettably that wartime conduct will often adversely affect civilians Nevertheless the Chamber finds that even if it be accepted that those civilians of whatever ethnicity believed to have been abducted by the KLA in and around the relevant period were in truth so abducted then nevertheless in the context of the population of Kosovo as a whole the abductions were relatively few in number and could not be said to amount to a “widespread” occurrence for the purposes of Article 5 of the Statute 211 The evidence discloses that there was at most a “systematic” attempt by the KLA to target Kosovo Albanian individuals believed to be or suspected of collaborating with the Serbian authorities but no attempt to target a civilian population as such 212 The existence of a plan or policy can be indicative of the systematic character of offences charged as crimes against humanity 689 The existence of a “policy” to conduct an attack against a civilian population is most easily determined or inferred when a State’s conduct is in question but 682 683 684 685 686 687 688 689 Vojko Bakra T 1342 L10 T 2916-2917 T 2938 L06 T 1007 Peter Bouckaert T 5483 Peter Bouckaert T 5477 T 5482 T 5483 Peter Bouckaert T 5482-5483 Ljiljana Mitrovi T 1602-1603 See infra paras 243-282 290-446 Kordi Trial Judgement para 182 75 Case No type Case # type date absence of a policy does not mean that a widespread or systematic attack against a civilian population has not occurred Although not a legal element of Article 5 690 evidence of a policy or plan is an important indication that the acts in question are not merely the workings of individuals acting pursuant to haphazard or individual design but instead have a level of organisational coherence and support of a magnitude sufficient to elevate them into the realm of crimes against humanity It stands to reason that an attack against a civilian population will most often evince the presence of policy when the acts in question are performed against the backdrop of significant State action and where formal channels of command can be discerned 213 Special issues arise however in considering whether a sub-state unit or armed opposition group whether insurrectionist or trans-boundary in nature evinces a policy to direct an attack One requirement such an organisational unit must demonstrate in order to have sufficient competence to formulate a policy is a level of de facto control over territory 691 As was said by the Trial Chamber in Prosecutor v Tadi “the law in relation to crimes against humanity has developed to take into account forces which although not those of the legitimate government have de facto control over or are able to move freely within defined territory ”692 214 Evidence indicates the fluid nature of the engagements between KLA and Serbian forces and reversals of territorial acquisition The Chamber notes the KLA’s ability to erect checkpoints along main roads 693 increasing examples of command and control in KLA ranks 694 and the development of civilian structures as evidence of its increasing control over and ability to move within much of Kosovo It also notes of reports determining that from April 1998 until mid July 1998 the KLA held as much as forty per cent of territory in Kosovo 695 The Chamber is satisfied on all of the evidence that at least during the relevant timeframe the KLA had de facto control over parts of Kosovo and its forces were able to move within those parts and some other territory in Kosovo 215 From the evidence before the Chamber the KLA evinced no policy to target civilians per se Peter Bouckaert stated that he never saw anything issued by the KLA which constituted an order to its members to target innocent civilians or to loot or destroy Serbian property 696 Susanne 697 Ringgaard Pedersen stated that she could not discern a broad policy to target civilians 690 691 692 693 694 695 696 697 Bla ki Appeals Judgement paras 100 and 120 Kunarac Appeals Judgement para 98 Kupre ki Trial Judgement para 552 Tadi Trial Judgement para 654 See supra para 145 See supra paras 94-134 Exhibit P212 tab 5 Peter Bouckaert T 5516 Peter Bouckaert T 5564-5565 Susanne Ringgaard Pedersen T 3532-3533 76 Case No type Case # type date The Chamber accepts Jakup Krasniqi’s statement that it was not part of KLA political or military policy to kidnap torture or murder innocent civilians 698 The evidence does not establish or even indicate a general policy of targeting civilians as such whether Serbian or Kosovo Albanian 216 The Chamber accepts that there was evidence of a KLA policy to target perceived Kosovo Albanian collaborators who were believed to be or suspected of associating with Serbian authorities and interests As early as 1997 the KLA warned the “stooges of the Serb regime” not to undermine the “liberation war ”699 KLA communiqué number 43 published on 4 March 1998 contains the phrase “death to enemies and traitors ”700 KLA communiqué number 53 of 19 September 1998 refers to “punitive measures of various kinds” undertaken against “collaborationist elements that continue to serve the occupying power ”701 The Chamber accepts that communiqués were intended partly for propaganda purposes 702 However there was a KLA policy linked to its military objectives to target those individuals thought to be collaborating with the Serbian forces Nevertheless in the guise of giving effect to this policy a number of Kosovo Albanian civilians may have been abducted for other reasons such as personal revenge of individual KLA members and other motives The KLA did not have the resources or the command structure to adequately control the implementation of this policy by its forces at the time relevant to the Indictment and the Chamber accepts that individual cases of abduction for reasons not within the collaborator policy were carried out by rogue elements of the KLA 703 217 However the effect of the evidence is to indicate that the KLA had a policy of targeting only those who were believed to have or suspected of having links with the Serbian regime Evidence before the Chamber indicates there was a limited level of co-ordination and organisation to such targeted attacks The existence of the Llapushnik Lapusnik prison camp itself demonstrates the co-ordinated and organised nature of the targeting of suspected collaborators However the Chamber concludes that whether these perceived or suspected collaborators were correctly identified or not they were targeted as individuals rather than as members of a larger targeted population The Chamber accepts however that there were also instances of abduction undertaken by local elements of the KLA who were acting independently of any central KLA control because at the relevant time the KLA had only limited capacity to exert effective control 218 The requirement that a “civilian population” be targeted has as its objective the exclusion from the realm of crimes against humanity the perpetration of crimes against a limited and 698 699 700 701 702 Jakup Krasniqi T 3439-3441 Jakup Krasniqi T 3320 Jakup Krasniqi T 3335-3336 Exhibits P48 and P49 Ole Lehtinen T 589 Exhibits P48 and P49 Robert Churcher T 6377 77 Case No type Case # type date randomly selected number of individuals In this sense the requirement that a “civilian population” be the target of an attack may be seen as another way of emphasising the requirement that the attack be of large scale or exhibit systematic features 219 For Article 5 to apply it must be established that those targeted by the attack were “civilians” in the relevant sense This involves consideration of the meaning of the term “civilian ” In its Joint Final Brief the Defence assert that any “collaborators” targeted by the KLA referred to those taking active part in hostilities and who were therefore disentitled to civilian status 704 They therefore contend that a “population” contemplated by Article 5 has not come under attack 220 In support of their arguments the Defence produced a number of examples in which KLA members in public statements and interviews distinguished between 705 “collaborators ” “civilians” and Rexhep Selimi stated that by “collaborators” he intended to refer to persons involved in the structures of the Serbian secret services 706 Jakup Krasniqi defined a collaborator as a person who “was harmful to the KLA when such a person is giving information on the movements of the KLA to the Belgrade regime ”707 Peter Bouckaert of Human Rights Watch understood “collaborators” to mean people who were working with the Serbian authorities or people who were suspected of being informants to Serbian officials 708 221 In an interview Jakup Krasniqi stated that the KLA never dealt with civilians and that the KLA’s rules of operation recognised the Geneva Conventions 709 Yet Jakup Krasniqi while professing that the KLA followed “all international rules of warfare” stated that “ c ollaborators are warned that we will kill them if they continue to follow the wrong path ”710 Elsewhere Jakup Krasniqi noted that “ e ven if some people have suffered these have been more Albanian collaborators than Serbian civilians We do not deal with civilians and we return those whom we take as prisoners of war…Those we have kidnapped are either announced in a list or reported to be executed but we do not behave in a base fashion like Serbia ”711 222 By adducing a number of similar statements the Defence contend that the KLA drew a fundamental distinction between civilians which the KLA deemed entitled to protection and collaborators who were to be treated as combatants 703 704 705 706 707 708 709 710 711 However the Chamber does not have Susanne Ringgaard Pedersen T 3532 Defence Final Brief paras 362-368 Defence Final Brief paras 362-368 Rexhep Selimi T 6634-6639 Jakup Krasniqi T 3324-3325 Peter Bouckaert T 5488-5489 Jakup Krasniqi T 3384-3385 Jakup Krasniqi T 3362-3364 Ole Lehtinen T 587-588 78 Case No type Case # type date sufficient evidence to conclude that those alleged to be collaborating with the Serbian regime possessed the characteristics that would deny them membership of the civilian population 223 The Chamber is satisfied that the KLA definition of “collaborators” encompassed civilians as well as perceived combatants The Chamber recalls that Article 50 paragraph 1 of Additional Protocol I to the Geneva Conventions which the Defence invite the Chamber to apply in the present situation states that “ i n case of doubt whether a person is a civilian that person shall be considered a civilian ” The provisions of Article 50 have been considered by the Appeals Chamber to reflect customary international law 712 The Chamber acknowledges however that the definition of “civilian” employed in the laws of war cannot be imported wholesale into discussion of crimes against humanity In this regard the Chamber notes that the Trial Chamber in Prosecutor v Tadi determined that The definition of civilians contained in Common Article 3 is not immediately applicable to crimes against humanity because it is a part of the laws or customs or war and can only be applied by analogy The same applies to the definition contained in Protocol I and the Commentary Geneva Convention IV on the treatment of civilians both of which advocate a broad interpretation of the term ‘civilian’ 713 224 Taking account of these considerations and in light of the evidence before the Chamber concerning those apprehended and detained because of their alleged or suspected acts of collaboration the Chamber concludes that at least as a general rule perceived collaborators abducted by the KLA were entitled to civilian status 225 To acknowledge the abduction of specific civilians whether Serbian or Kosovo Albanian as discussed and identified above does not demonstrate however at least in the established circumstances of this case that the KLA had a policy to target a “civilian population ” The evidence does indicate that some abducted Serbs suspected of being military or police were subjected to considerable violence and otherwise mistreated as an interrogation technique as the KLA sought to verify suspicions A number of abducted Serbs apparently civilian were later murdered by the KLA Others have not been heard from since their abduction or since they were seen in KLA custody However some were released The evidence does not allow a determination in most cases as to why some were released but others not Clearly in many cases there was a process of decision by the KLA On what basis that process of decision turned is not however established by the evidence In many but not all cases connection with the Serbian police or military or involvement in armed civilian or paramilitary forces engaged against the KLA may be a or the determinative factor Whatever was the basis the existence of a process of decision which 712 713 Kordi Appeals Judgement para 97 Bla ki Appeals Judgement para 110 Tadi Trial Judgement para 639 79 Case No type Case # type date affected the consequences of KLA abduction tells with some force against the existence and perpetration of a general KLA strategy of abduction of the Serbian civilian population of Kosovo The evidence does not establish that the abduction detention or mistreatment of Serbian civilians was on a scale or frequency such that the attack could be considered to have been directed against a civilian population 226 In the particular context of this case the majority of identified detainees in the prison camp were Kosovo Albanian The evidence does not enable any conclusion as to the overall proportion of civilians abducted and detained by the KLA as between Serbian and Kosovo Albanian victims What has been established in respect of those abducted and detained indicates that the abductions occurred in diverse geographic locations were relatively limited in number and involved relatively few abductees in comparison to the civilian population of Kosovo such that it is not possible to discern from them that the civilian population itself was the subject of an attack or that Kosovo Albanian collaborators and perceived or suspected collaborators and other abductees were of a class or category so numerous and widespread that they themselves constituted a “population” in the relevant sense 227 The means and methods used by the KLA in the period relevant to the Indictment in the abduction of Serbian and Kosovo Albanian civilians whether considered together or separately do not evince characteristics of an attack directed against a civilian population At least in most cases of which there is evidence the individuals who were abducted and then detained were singled out as individuals because of their suspected or known connection with or acts of collaboration with Serbian authorities - and not because they were members of a general population against which an attack was directed by the KLA 228 Upon consideration of the evidence before it the Chamber finds that at the time relevant to the Indictment there was no attack by the KLA directed against a “civilian population” whether Kosovo Albanian or Serbian in ethnicity and no attack that could be said to indicate a “widespread” scale however as indicated earlier there is evidence of a level of systematic or coordinated organisation to the abduction and detention of certain individuals While the KLA evinced a policy to target those Kosovo Albanians suspected of collaboration with the Serbian authorities the Chamber finds that there was no attack directed against a civilian population whether of Serbian or Albanian ethnicity In the required sense discussed earlier in this Judgement it has not been established by the Prosecution that the acts of the three Accused which are alleged to constitute the crimes against humanity charged in Counts 1 3 5 7 and 9 in the Indictment were part of a widespread or systematic attack directed against a civilian population It has not been established that Article 5 applies in the present case Counts 1 3 5 7 and 9 must therefore be dismissed 80 Case No type Case # type date V THE CHARGES A Law on the crimes charged 1 Introduction 229 It is alleged in the Indictment that the three Accused Fatmir Limaj Haradin Bala and Isak Musliu are responsible for the offences charged in Counts 1 to 8 Additionally the Accused Fatmir Limaj and Haradin Bala are charged with Counts 9 and 10 All the offences charged are alleged to have been committed in a period from May to about 26 July 1998 The Accused are charged in the Indictment with unlawfully seizing at least 35 Serbian and Kosovo Albanian civilians from the municipalities of Shtime Shtlimje Glogovce Gllogoc and Lipljan Lipjan in Kosovo and forcibly taking them to the Llapushnik Lapusnik prison camp 714 The Indictment alleges that at the Llapushnik Lapusnik prison camp the three Accused unlawfully detained these civilians for prolonged periods and interrogated the Kosovo Albanian civilians perceived as collaborators with the Serbian forces located in the area 715 These allegations support one count of crimes against humanity under Article 5 of the Statute namely imprisonment Count 1 and one count of violation of the laws or customs of war under Article 3 of the Statute namely cruel treatment Count 2 The three Accused are further charged in the Indictment with holding these civilians in inhumane conditions at the prison camp and for routinely subjecting them to assault beatings and torture 716 In respect of these allegations the three Accused are charged with criminal liability for torture as a crime against humanity under Article 5 of the Statute Count 3 and as a violation of the laws and customs of war under Article 3 of the Statute Count 4 inhumane acts as a crime against humanity under Article 5 of the Statute Count 5 and cruel treatment as a violation of the laws or customs of war under Article 3 of the Statute Count 6 The three Accused are also charged with the murder of 14 civilians at or around the prison camp in the course of their detention 717 These allegations support one count of violation of the laws or customs of war and one count of crime against humanity namely murder under Articles 3 and 5 of the Statute Counts 7 and 8 Finally the Accused Fatmir Limaj and Haradin Bala are charged with the murder of 10 detainees in the Berishe Berisa Mountains on or about 26 July 1998 as a violation of the laws or customs of war and a crime against humanity under Articles 3 and 5 of the Statute respectively Counts 9 and 10 714 715 716 717 Indictment paras 21-22 Indictment paras 21-23 Indictment paras 25-26 Indictment paras 28-32 81 Case No type Case # type date 2 Crimes against humanity Counts 1 3 5 7 and 9 230 The offences in Counts 1 3 5 7 and 9 are charged under Article 5 of the Statute of this Tribunal As found earlier in this decision the preliminary requirements for the applicability of Article 5 of the Statute have not been established 718 It follows that that Counts 1 3 5 7 and 9 must be dismissed 3 Cruel treatment Counts 2 and 6 231 Cruel treatment under Article 3 of the Statute is defined as an intentional act or omission causing serious mental or physical suffering or injury or constituting a serious attack on human dignity to a person taking no active part in the hostilities As regards mens rea the perpetrator must have acted with direct intent to commit cruel treatment or with indirect intent i e in the knowledge that cruel treatment was a probable consequence of his act or omission 719 232 The Accused have been charged with cruel treatment under Article 3 of the Statute in both Counts 2 and 6 Leaving aside cruel treatment under Count 6 which relates specifically to the alleged inhumane conditions of detention at the prison camp 720 cruel treatment under Count 2 has been charged in relation to the “unlawful seizure” “unlawful detention for prolonged periods” and “interrogation” of Serbian and or Kosovo Albanian civilians at the Llapushnik Lapusnik prison camp 721 These acts are charged per se as constituting a serious attack on human dignity and therefore constituting cruel treatment under Article 3 of the Statute The Chamber is of the view that whether particular conduct amounts to cruel treatment is a question of fact to be determined on a case by case basis The Chamber notes that the offence of cruel treatment has never been established before this Tribunal in relation to these specific acts 722 In determining whether the “unlawful seizure” “unlawful detention for prolonged periods” and “interrogation” alleged in the instant case amount to cruel treatment the Chamber has therefore taken into account all the circumstances of the instant case The Chamber has come to the conclusion that at least in the circumstances of this case these acts in and of themselves do not amount to a serious attack on human dignity within the meaning of cruel treatment under Article 3 of this Statute Count 2 must therefore also be dismissed 718 719 720 721 722 See supra para 228 Strugar Trial Judgement para 261 Indictment para 26 Indictment paras 22-33 In its Final Brief the Prosecution refers to the “arbitrary deprivation of liberty without due process in law” as constituting a cruel treatment under Article 3 The “unlawful seizure” and “interrogation” of Sebian and or Kosovo Albanian civilians are not mentioned Nevertheless because these acts are charged in the Indictment the Chamber has considered them paras 390-932 82 Case No type Case # type date 233 Because Counts 1 2 3 5 7 and 9 have been dismissed the Chamber will proceed in evaluating the evidence relating to the offences of torture under Article 3 of the Statute when dealing with Count 4 cruel treatment under Article 3 of the Statute when dealing with Count 6 and murder under Article 3 of the Statute when dealing with Counts 8 and 10 4 Torture Count 4 234 The Indictment charges the three Accused inter alia with torture as a violation of the laws or customs of war pursuant to Article 3 and as a crime against humanity pursuant to Article 5 of the Statute 235 The law on torture is well settled by the jurisprudence of the Tribunal For the crime of torture to be established whether as a war crime or as a crime against humanity 723 the following three elements must be met 1 There must be an act or omission inflicting severe pain or suffering whether physical or mental 2 The act or omission must be intentional and 3 The act or omission must have been carried out with a specific purpose such as to obtain information or a confession to punish intimidate or coerce the victim or a third person or to discriminate on any ground against the victim or a third person 724 236 An act or omission may constitute the actus reus of torture if it has caused severe pain or suffering Mistreatment which does not rise to this level of severity may nevertheless constitute another offence under the jurisdiction of the Tribunal 725 Further it is not required that the act or omission has caused a permanent injury 726 nor is there a requirement that the act or omission has caused a physical injury as mental harm is a prevalent form of inflicting torture 727 237 With respect to the assessment of the seriousness of the acts charged as torture previous jurisprudence of the Tribunal has held that this should take into account all circumstances of the case and in particular the nature and context of the infliction of pain the premeditation and institutionalisation of the ill-treatment the physical condition of the victim the manner and the 723 724 725 726 The definition of the offence is the same regardless of the Article of the Statute under which the accused ahs been charged See Br anin Trial Judgement para 482 Krnojelac Trial Judgement para 178 Furund ija Trial Judgement para 139 Kunarac Appeals Judgement paras 142 144 confirming Kunarac Trial Judgement para 497 See also Br anin Trial Judgement para 481 Krnojelac Trial Judgement para 179 elebi i Trial Judgement para 468 Krnojelac Trial Judgement para 181 Kvo ka Trial Judgement paras 148 83 Case No type Case # type date method used and the position of inferiority of the victim 728 Also relevant to the Chamber’s assessment is the physical or mental effect of the treatment on the victim the victim’s age sex or state of health 729 Further if the mistreatment has occurred over a prolonged period of time the Chamber would assess the severity of the treatment as a whole 730 Finally this Chamber concurs with the finding of the elebi i Trial Chamber made specifically in the context of rape that in certain circumstances the suffering can be exacerbated by social and cultural conditions731 and it should take into account the specific social cultural and religious background of the victims when assessing the severity of the alleged conduct 238 As for the mens rea required for the crime of torture the previous jurisprudence of the Tribunal establishes that direct intent is required the perpetrator must have intended to act in a way which in the normal course of events would cause severe pain or suffering whether physical or mental to his victims 732 It is irrelevant that the perpetrator may have had a different motivation if he acted with the requisite intent 733 239 For the crime of torture to be established the alleged act or omission must have been carried out with a specific purpose to obtaining information or a confession or to punish intimidate or coerce the victim or a third person or to discriminate on any ground against the victim or a third person The prohibited purpose needs not be the sole or the main purpose of the act or omission in question 734 240 And finally the Chamber notes that while the earlier jurisprudence of the Tribunal has reached different conclusions as to whether for the crime of torture to be established the alleged act or omission must be committed by or at the instigation of or with the consent or acquiescence of an official or person acting in an official capacity 735 this issue is now settled by the Appeals Chamber Under customary international law and the jurisprudence of the Tribunal it is not necessary that the perpetrator has acted in an official capacity 736 727 728 729 730 731 732 733 734 735 736 Kvo ka Trial Judgement paras 149 Krnojelac Trial Judgement para 182 Kvo ka Trial Judgement para 143 Krnojelac Trial Judgement para 182 elebi i Trial Judgement para 495 Kunarac Appeals Judgement para 153 Kunarac Appeals Judgement para 153 Kunarac Appeals Judgement para 155 Kvo ka Trial Judgement para 153 Krnojelac Trial Judgement para 184 See for example elebi i Trial Judgement para 494 and Kvo ka Trial Judgement paras 137-141 Kunarac Appeals Judgement para 148 Kvo ka Appeals Judgement para 284 84 Case No type Case # type date 5 Murder Counts 8 and 10 241 The three accused are charged with murder under Article 3 of the Statute 737 Three elements are required to establish the offence of murder 738 a the death of a victim although it is not necessary to establish that the body of the deceased person has been recovered 739 b that the death was the result of an act or an omission of the perpetrator and c the intent of the perpetrator at the time of the act or omission to kill the victim or in the absence of such a specific intent in the knowledge that death is a probable consequence of the act or omission 740 B Findings 242 The Chambers observes that the Prosecution alleged in the Indictment in support of the charges of imprisonment and cruel treatment Counts 1 and 2 that at least 35 individuals had been arrested and detained at the Llapushnik Lapusnik prison camp 741 However only 24 individuals alleged to be victims of murder are expressly listed in the Indictment 742 At the start of the trial the Prosecution adduced a document containing the names and photographs of persons it submitted were victims detained at the Llapushnik Lapusnik prison camp among whom 28 had been killed and 22 had survived 743 The Chamber notes that this has created some confusion In particular with this document the Prosecution appeared to be alleging the murder of a further four individuals who were not mentioned in the Indictment Given that these additional allegations of murder have not been adequately pleaded in the Indictment the Chamber has not examined them in this decision 1 Existence of a prison camp in Llapushnik Lapusnik 243 The acts charged in the present Indictment are alleged to have occurred at or in relation to a prison camp established in the village of Llapushnik Lapusnik shortly after KLA troops were located in the village in May 1998 The three Accused do not admit that a KLA prison camp existed in Llapushnik Lapusnik at any time between early May and late July 1998 A number of Prosecution and Defence witnesses including former KLA members testified that they were not 737 738 739 740 741 742 743 Indictment paras 28-33 34-37 See Kvočka Appeals Judgement paras 257 and 261 See Krnojelac Trial Judgement para 326 enhanced by the Appeals Chamber in Kvočka Appeals Judgement para 260 “The fact of a victim’s death can be inferred circumstantially from all of the evidence presented to the Trial Chamber All that is required to be established from that evidence is that the only reasonable inference from the evidence is that the victim is dead as a result of acts or omissions of the accused or of one or more persons for whom the accused is criminally responsible ” See also Tadić Trial Judgement para 240 See Strugar Trial Chamber para 236 Indictment para 22 Indictment paras 29-32 and Annexes I II and III Exhibit P54 85 Case No type Case # type date aware of the existence of such a camp 744 Fatmir Limaj testified that he never saw or heard of a prison camp in Llapushnik Lapusnik It was his evidence that he did not believe that there was one 745 A former KLA member called as a Defence witness Elmi Sopi asserted that the whole village of Llapushnik Lapusnik was taken by surprise at the allegation that a prison camp had existed there when this became known to them only after the arrest of the three Accused on the present Indictment 746 It is necessary therefore for the Chamber to determine whether it has been established that a KLA prison camp existed in Llapushnik Lapusnik and whether individuals were detained there at the time material to this Indictment 244 A number of Prosecution witnesses testified about the circumstances of their abduction from various places in the municipalities of Gllogovc Glogovac Lipljan Lipljan and Shtime Stimlje and their subsequent detention in a farm compound in the period of June to July 1998 The Chamber will review below their evidence Gllogovc Glogovac Llapushnik Lapusnik is in the municipality of Lipljan Lipljan and Shtime Stimlje are municipalities immediately to the south-east of Gllogovc Glogovac 245 Witness L06 testified that on 13 June 1998 together with Witness L10 and two other individuals he was stopped by two KLA soldiers wearing masks and carrying automatic weapons 747 About an hour later four KLA soldiers wearing camouflage uniforms came and took L06 L10 and one of the two individuals to the house of Idriz Muharremi 748 There were many soldiers there including Ali Gashi and Ramadan Behluli 749 L06 and L10 were put in the trunk of a car and the third individual was taken in another car 750 L06 and L10 were driven to a place which L06 recognised was Llapshnik Lapusnik L06 recognised Llapushnik Lapusnik because he knew the area as he used to have relatives living there 751 The trip took approximately three hours on a bumpy road 752 Once there L06 was taken into a room in which there was already a man from Carraleve Crnoljevo later identified as Emin Emini 753 On the following day a man L06 referred to as Shala came into the room and tied L06 with a heavy chain 754 It was established later that this room was the storage room of the farm compound where L06 was taken 755 The room was about 744 745 746 747 748 749 750 751 752 753 754 755 Fadil Kastrati T 2620 Jakup Krasniqi T 3475 Jan Kickert T 696 737-739 Peter Bouckaert T 5586 Ramadan Behluli T 2832-2835 Dr Zeqir Gashi T 5631-5632 Elmi Sopi T 6739 Rexhep Selimi T 6606 Fatmir Limaj T 6336 Elmi Sopi T 6739 L06 T 974 977-979 L06 T 983 985 L06 T 983-984 L06 T 989-990 L06 T 994 1068 L06 T 990 L06 T 990-992 Exhibit P54 L06 T 993-994 L06 T 1038-1039 Exhibit P6 86 Case No type Case # type date 2 x 3 metres and had a concrete floor There was manure on the floor and a hose The ceiling was leaking The room had only one very small window There was a bucket which was used as a toilet 756 The number of prisoners in the room grew towards the end of L06’s detention reaching a total of up to 12 or 13 people 757 L06 remembered the names of two of them Adem and Shevket 758 and was able to recognize L96 as one of the prisoners held in the storage room 759 Lutfi was also a prisoner in the same room as was L07 for a few days 760 Two guards who L06 said were Shala and Murrizi brought food and water to the prisoners 761 Every three or four days Shala opened the door and let the prisoners walk for a little while 762 246 It was L06’s evidence that he was kept in the storage room for approximately two months 763 On his last day in detention the camp was shelled by Serbian forces L06 and other prisoners were told to come out of the storage room and made to walk to the mountains escorted by the prison guards Shala and Murrizi 764 Outside the storage room were other prisoners including Milajim from Recak Racak Witness L96 Hid Witness L04 Witness L12 a man with a wounded leg and Lumaj 765 All were marched to the mountains They arrived at a meadow surrounded by the Berishe Berisa Mountains where they stayed for about two hours The names of ten prisoners including L06’s were called by the KLA guard L06 said they were given papers with their names on it and told to go towards Kizhareke Kisna Reka 766 247 Witness L10 testified that on 14 June 1998 he together with Witness L06 and another individual was stopped by two armed men wearing masks and KLA insignias in the vicinity of the village of Zborc Zborce 767 Three or four masked armed men came an hour later and took the three men to the house of Idriz Muharremi located nearby There L10 was made to get into the trunk of a car which drove for about one hour and 30 minutes The car stopped and L10 was taken to a “dark cellar ” A little later the third individual taken together with L10 was brought in He told L10 that they were in Klecke Klecka 768 After about an hour L10 was blindfolded and again placed in the trunk of a car 769 The car drove for about an hour before arriving in another place 770 Once 756 757 758 759 760 761 762 763 764 765 766 767 768 769 770 L06 T 990-993 995-997 L06 T 999 L06 999-1001 1039-1045 Exhibit P54 L06 T 1039-1045 Exhibit P54 L06 T 1039-1045 L06 T 997-998 1001 1101-1102 L06 T 997-998 L06 T 990-993 L06 T 1025 1028 L06 T 1033-1034 1039-1045 L06 T 1028-1030 L10 T 2907-2909 L10 T 2913-2915 L10 T 2915-2916 L10 T 2916 87 Case No type Case # type date inside the blindfolding was removed and L10 saw masked soldiers who asked him who was a spy in his village 771 L10 was then placed into what he described as a cellar 772 It was later clarified that this was the storage room of the farm compound where he was taken 773 The room was 4 x 3 metres had one window an iron door and a concrete floor 774 The door was always closed There was a bucket that functioned as a toilet 775 Two guards whom L10 said were Shala and Murrizi brought food and water 776 At the beginning there were four people detained in the storage room but later up to 15 people were held there 777 L10 said that among them were Shefqet and Adem from Godanc Godance Lutfi from Breg-i-Zi Crni Breg Hyzri from the village of Belince Belince Witness L96 and two Serbs 778 L10 was able to recognize the photographs of Bashkim from Godanc Godance Fehmi Xhema Adem from Godanc Godance and L96 as being among the prisoners held in the storage room 779 248 L10 testified that he spent approximately two months in the prison camp 780 On his last day in the camp shelling and fighting started At 1000 or 1100 hours Shala and Murrizi came to the room where L10 was held told the prisoners that a “bombardment” was going on and took them outside to a courtyard 781 There the prisoners were put into single file and told to walk uphill 782 After about 40 minutes they stopped near a cherry tree Based on the account of a relative of his L10 deduced that this place was located in the Berishe Berisa Mountains 783 Shala Murrizi and a third soldier were there with their automatic guns 784 After about two hours Shala split the prisoners into two groups one was released there and the other group was to be released later 785 L10 was in the group that was released He remembered that the following persons were also in that group Shefqet and Adem from Godanc Godance a man from Recak Racak Muje from Belince Belince Witness L04 Witness L06 and Witness L12 786 They were given pieces of paper permitting their release which were written by Shala before he told them that they were free to go 787 They were told to go downhill but instead they went to the village of Kizhareke Kisna 771 772 773 774 775 776 777 778 779 780 781 782 783 784 785 786 787 L10 T 2916-2917 L10 T 2916 L10 T 2927-2928 L10 T 2918-2920 L10 T 2918-2921 L10 T 2918-2922 L10 T 2922-2923 L10 T 2923-2925 L10 2969-2973 Exhibit P54 L10 T 2921 L10 T 2960 L10 T 2960-2961 L10 T 2960-2966 L10 T 2962-2963 L10 T 2963 L10 T 2964 L10 T 2967 88 Case No type Case # type date Reka 788 After his release L10 found out from a personal relation of his that he had been detained in Llapushnik Lapusnik 789 249 The written statement of Witness L84 admitted as evidence pursuant to Rule 92bis provides further evidence relevant to the existence of a prison camp in Llapushnik Lapusnik L84 a civilian declared that sometime in June 1998 he was taken by KLA soldiers by car from Kizhareke Kisna Reka to Llapushnik Lapusnik 790 A KLA soldier known as “Voglushi” drove the car 791 When they arrived in Llapushnik Lapusnik the car drove up from the Prishtina PristinaPeje Pec road into the forest and arrived at a place where two compounds were divided by a narrow road 792 “Voglushi” told L84 that the compound on the left side was the headquarters of the KLA in Llapushnik Lapusnik He was taken to that headquarters compound and stayed in the room located immediately on the right side of the gate There was also a big main building and another smaller building in the yard L84 was told there that this compound belonged to the family of “Vojvod ”793 At the compound L84 was questioned about people from his village and on the following day was taken to the compound located on the right side of the road opposite to the headquarters compound 794 This compound had a reddish colour double gate made of metal or wood Besides the big gate there was a smaller gate and inside there were stairs leading to the room upstairs immediately on the right inside the gate 795 Entering the upstairs room from the stairs there were two separate rooms 796 The description of this second compound and of the headquarters compound and the physical juxtaposition of the two is consistent with the description of the prison camp alleged by the Prosecution L84 stayed in one of these rooms together with an old man 797 In the other room there was a young boy from Carraleve Crnoljevo There was always a guard at the gate and at the stairs outside the room where L84 was kept 798 One day L84 was asked by a guard to come out and he spoke with L64 who was wearing a KLA uniform 799 L84 stayed in Llapushnik Lapusnik for three nights the last two in the second guarded compound opposite the compound that served as KLA headquarters where he was first taken 800 He was asked questions 788 789 790 791 792 793 794 795 796 797 798 799 800 L10 T 2964 L10 T 2934-2935 Exhibit P197 paras 14 17-22 Exhibit P197 para 22 Exhibit P197 para 23 Exhibit P197 paras 23-24 Exhibit P197 paras 25-28 30 Exhibit P197 para 30 Exhibit P197 para 32 Exhibit P197 para 32 Exhibit P197 paras 30 32 Exhibit P197 para 35 Exhibit P197 para 31 89 Case No type Case # type date about several persons 801 L84 stated that before he was released he was threatened and asked not to tell anyone what he had seen 802 250 Witness L04 testified that on or about 28 June 1998 he was taken from his house by a group of soldiers dressed in black uniforms and wearing KLA insignias among them Alush Gashi and Rrahman Tafa 803 The soldiers and L04 first went to L12’s house From there the soldiers took L12 and together all then went to another man’s house to look for a weapon 804 After they found a gun in this house two soldiers Alush Gashi and Shukri Buja who was also there tied L04’s and L12’s hands behind their backs with a rope put sacks on their heads and made them get into a car 805 They were first taken to a house in the village that served as a KLA headquarters and after that to another KLA headquarters in the village of Pjetershtice Petrastica 806 There L04 and L12 were insulted and beaten with thin sticks while still wearing the sacks on their heads 807 L04 lost a tooth and was in pain 808 After the beatings L04 and L12 were made to lie in the back of a van still with sacks on their heads 809 The van drove to the left for approximately one hour after which it turned left again L04 and L12 were taken out of the car An individual addressed by a soldier as “Shala ” took the sacks off their heads 810 L04 knew that they were in Llapushnik Lapusnik 811 He knew the village of Llapushnik Lapusnik very well as he used to pass through it once a week 812 251 L04 was detained at the cowshed of a farm compound 813 Other people were also detained in the cowshed among them he said were Veseli and Shyqja from Godanc Godance Elmi Qerqini from Carraleve Crnoljevo Agim Witness L12 two Serbs from the municipality of Suhareka Suva Reka a man from Kroimire Krajmirovce and a person referred to as the Bosniak 814 Shyqja from Godanc Godance had a broken leg 815 Milaim Kamberi from Recak Racak Hete from Petrove Petrovo and Xhela Halimi from Petrove Petrovo were brought into the cowshed a few days later 816 All prisoners were chained to the wall 817 Shala was the guard of the cowshed he brought 801 802 803 804 805 806 807 808 809 810 811 812 813 814 815 816 817 Exhibit P197 paras 25-28 Exhibit P197 para 36 L04 T 1110-1113 L04 T 1113-1118 L04 T 1118-1119 L04 T 1119-1121 L04 T 1121-1122 L04 T 1122 L04 T 1123 L04 T 1124-1125 L04 T 1123-1124 L04 T 1272-1273 L04 T 1127-1130 L04 T 1131-1136 1139 L04 T 1139 L04 T 1136-1138 L04 T 1140-1141 90 Case No type Case # type date food to the prisoners and he was always there 818 L04 saw also other KLA soldiers in the prison camp namely individuals referred to as Qeqizi Tamuli and Murrizi 819 On one occasion L04 was taken out of the cowshed He then saw the Berishe Berisa Mountains and a small house within the compound 820 This description is consistent with the prison camp alleged by the Prosecution 252 Witness L04 said he spent 28 days in the prison compound 821 On his last day in detention Murrizi came to the cowshed and unchained the prisoners They were told to go to the courtyard and together with other detainees made to walk up into the Berishe Berisa Mountains 822 L04 saw other people in the yard who apparently had also been detained in the prison camp including Emin Emini Hyzri Safet Luta a female prisoner Witness L06 and Witness L96 823 The prisoners went up to the Berishe Berisa Mountains and rested there for about one hour Then Murrizi called the names of 11 prisoners including L04’s and told them that they were free to go The others were to be released later 824 The names of the prisoners in the first group were Shefqhet Milaim Muje Luma a man from Kraishte Krajiste Afrim Queriqi from Kroimire Krajmirovce Witness L12 Witness L10 and Witness L04 Shala gave each of them a piece of paper which L04 said stated that Commander Çeliku had ordered their release He told them to go Kizhareke Kisna Reka 825 The prisoners who were left behind in the Berishe Berisa Mountains after this were Hete Safet Hyzria Luta Xhela Hasan Ibush Shyqja Witness L96 and a woman 826 253 Witness L12 also testified that one night in the summer of 1998 he was taken from his house by KLA soldiers A group of KLA soldiers in military uniforms all but three of whom were wearing masks and Witness L04 came to his house at about 0130 or 0200 hours and took him to another house from where the KLA soldiers took a rifle a generator and a telephone 827 L12 said that among the KLA soldiers were Shukri Buja Ramadan Behluli Sule Qeriqi and Ali Ramadani 828 There L12 and L04 were made to get into a car and were tied up together A sack was put on L12’s head and they were driven to the village of Pjetershtice Petrastica by Ali Ramadani and Shukri Buja 829 In the village L12 and L04 were taken to a house where they were beaten by KLA soldiers Rrahman and Alush Gashi L12 was beaten on his back and his legs with 818 819 820 821 822 823 824 825 826 827 828 L04 T 1175 1177-1179 L04 T 1136 1172-1173 1175-1176 1192-1194 L04 T 1183 L04 T 1173 L04 T 1192-1194 L04 T 1192-1194 The Chamber notes that the presence of a woman among the detainee has not been confirmed by the evidence L04 T 1194-1195 L04 T 1197-1198 Exhibit P76 L04 T 1197-1198 Exhibit P76 The Chamber notes that the presence of a woman among the prisoners in the Berishe Berisa Mountains has not been confirmed by the evidence L12 T 1788-1792 L12 T 1788-1791 91 Case No type Case # type date heavy sticks The soldiers swore at L12 and L04 while beating them 830 After about 15 minutes L12 and L04 were placed in a car and driven to what L12 believed was Llapushnik Lapusnik 831 There a person who L12 described as Shala removed the sack from L12’s head 832 254 Witness L12 was then detained in a cowshed 833 It had one window on the left wall and a concrete floor with manure and blood on it 834 There were other people in the cowshed who were all chained 835 When prompted L12 remembered that the following persons were held with him Elmi Qerqini Xheladin Hete from Petrove Petrovo Afrim Qirqiri from Krajmirovce Muj from Belinze Milaim from Recak Racak and Shefqhet Ramadani from Godanc Godance 836 The guard in the cowshed was a man referred to as Shala He had the keys to the cowshed he came every day and brought food L12 saw also another guard in the prison camp whose name L12 said was Murrizi 837 255 L12 testified that on his last day in detention a shell exploded in the camp Shala took all the prisoners out of the cowshed and took them to the Berishe Berisa Mountains The prisoners marched one by one through the mountains Murrizi was leading the column and Shala came behind 838 One of the prisoners had a foot injury and was unable to walk alone The group arrived in a valley There half of the prisoners including L12 were released but the other half remained there 839 Those released were given a piece of paper 840 After his release as he was walking towards the hills L12 recognised that he had been detained at Llapushnik Lapusnik He had visited the village many times and was very familiar with it 841 256 Vojko Bakra testified that on 29 June 1998 one or two km after passing through Suhareke Suva Reka he and his then 18 year old son Ivan were abducted by KLA soldiers from a bus travelling from Gjakove Djakovica to Prishtina Pristina 842 They had lived in Croatia but they were of Serbian ethnicity Vojko Bakra his son and two other Serbs Zeljko uk later identified as or e uk 843 and Stamen Genov were taken from the bus and blindfolded First Stamen Genov 829 830 831 832 833 834 835 836 837 838 839 840 841 842 843 L12 T 1794-1795 L12 T 1797-1798 L12 T 1788-1791 1797-1798 L12 T 1799 L12 T 1799 L12 T 1802-1803 L12 T 1799 1803 L12 T 1820 -1823 L12 T 1800-1802 L12 T 1813-1815 L12 T 1815-1818 L12 T 1818 L12 T 1815-1816 Vojko Bakra T 1286-1297 Vojko Bakra T 1291-1294 Exhibit P54 92 Case No type Case # type date and or e uk and later the two Bakra s were driven to a village school 844 Some time later Vojko Bakra and his son were put in a van blindfolded and taken to a farm 845 Stamen Genov and or e uk were also put in the van and they were tied 846 At the farm Vojko Bakra and his son entered the yard through a gate the blindfolds were removed and they were taken to a small house first through a kitchen and then to a dining room where there was some sponge bedding 847 There were several soldiers in this room 848 257 Soon thereafter Vojko Bakra and his son were placed in what he thought looked like a basement located in the middle of the yard 849 It was established later that this was the storage room of the farm compound 850 The room was about 3 x 5 or 6 metres and had a small window and a door 851 The floor possibly made of concrete was covered with straw and hay There was a bucket by the door that served as a toilet facility The door was guarded although not all the time 852 Together with the Bakra s 13 people were detained there three Kosovo Albanians a Serb called Zeljko an elderly sick Serbian gentleman two Serbian brothers called Krsti from Suhareke Suva Reka who were later identified by him as Milovan Krsti and Miodrag Krsti 853 another Serbian man abducted from a bus Vojko Bakra and his son Ivan Stamen Genov and or e uk 854 A man referred to as Shala was a guard in the prison camp he communicated with the detainees and brought them food and cigarettes 855 258 Vojko Bakra and his son were held two or three days and nights in the storage room 856 On the third or fourth day of Vojko Bakra ’s stay in the prison camp a man came to the storage room and told Ivan Bakra to leave the storage room 857 Later a soldier took Vojko Bakra to the main building where he saw his son drinking tea with the man who had told him to leave the storage room Vojko Bakra was returned to the storage room but half an hour later he was taken again to an area of grass where he saw his son and then to a room on the first floor of the main building where he and his son remained for five days until their release 858 There were two or three Kosovo 844 845 846 847 848 849 850 851 852 853 854 855 856 857 858 Vojko Bakra T 1291-1299 Vojko Bakra T 1304-1306 Vojko Bakra T 1304 Vojko Bakra T 1304-1306 Vojko Bakra T 1306-1307 Vojko Bakra T 1311-1314 Vojko Bakra T 1326-1329 Vojko Bakra T 1311-1314 Vojko Bakra T 1329 Vojko Barkar T 1314-1317 Exhibit P54 Vojko Bakra T 1311-1314 Vojko Bakra T 1330-1332 Vojko Bakra T 1329 Vojko Bakra T 1334-1336 Vojko Bakra T 1338 93 Case No type Case # type date Albanian men there one of whom was called Gzim 859 Vojko Bakra and his son were asked to make written and video statements about the conditions in the prison camp 860 They were told that they would be released as soon as the ICRC or UNHCR were able to accommodate them On their last day at the farm compound they were asked to get into a jeep and were blindfolded After 15 or 20 minutes their blindfolds were removed the car continued driving and they were brought to Malisheve Malisevo 861 259 Ivan Bakra also testified about his abduction with his father from a bus travelling from Gjakove Djakovica to Prishtina Pristina at the end of June 1998 Somewhere after Prizren Prizren the bus was stopped by six soldiers armed with automatic rifles or bazookas Three of the soldiers were in camouflage uniforms 862 The soldiers boarded the bus and checked the passengers’ identification documents Ivan Bakra was asked to get off the bus and his father followed him Two Serbian men Stamen Genov and individual called uk later identified as or e uk 863 were also told to get off the bus The bus driver was told to continue his journey 864 A car took Stamen Genov and or e uk away It returned after about 30 minutes or one hour Ivan Bakra and his father were then blindfolded by KLA soldiers put in the car and driven through a forest After approximately one hour they arrived in a village and stopped in front of what appeared to be a school building 865 Stamen Genov and or e uk were already there They spent about five hours in the school During this time the soldiers about 10 of them asked them questions 866 260 That night Ivan Bakra his father and the two Serbian men taken from the bus were blindfolded again and placed in a van 867 The journey lasted for approximately 45 minutes or an hour The road was bumpy The van stopped every few minutes apparently to pass through checkpoints 868 When they arrived at their destination the sack was removed from Ivan Bakra ’s head and he saw a big brown fence and a gate Ivan and the others were taken into a house and kept in a room on the ground floor for about one hour and 30 minutes 869 Before the main room there was a small corridor with a toilet to the left 870 Inside the main room there were mattresses on the floor and some kind of stove next to the door There were several soldiers in the room when Ivan 859 860 861 862 863 864 865 866 867 868 869 870 Vojko Bakra T 1339-1342 Vojko Bakra T 1343-1345 Vojko Bakra T 1345-1351 Ivan Bakra T 1395-1397 Ivan Bakra T 1405 Exhibit P54 Ivan Bakra T 1397-1402 Ivan Bakra T 1403-1405 Ivan Bakra T 1403-1408 Ivan Bakra T 1410 Ivan Bakra T 1410-1411 Ivan Bakra T 1412-1416 1428 Ivan Bakra T 1426-1427 94 Case No type Case # type date and his father were brought in Ivan Bakra and his father were interrogated 871 After about an hour and a half Ivan Bakra and his father were taken to the basement of the house next door which was later identified as the storage room of the compound 872 Ivan Bakra described the storage room as being very small about 4 x 2 metres There was a shelf about 40 cm from the floor which was about 30-40 cm wide Next to the door there was a bucket which functioned as a toilet 873 The floor was concrete and there was straw thrown over it 874 When Ivan his father and the two other Serbian men seized from the bus Stamen Genov and or e uk were brought to the storage room there were already six or seven people there three Kosovo Albanians and three or four Serbs 875 Ivan Bakra and his father spent about three or five nights in the storage room 876 261 One day Ivan Bakra was told that he should leave the storage room A man referred to as Shala and a man with a black mask said that they needed to talk to him Ivan was taken to the room on the ground floor where he was first brought for questioning Shala and other soldiers brought him food Ivan was permitted to speak briefly to his father following which both he and his father returned to the room on the ground floor and spent some time there 877 Then both of them were taken to a room on the first floor located directly above the place they were sitting where there was a young Kosovo Albanian male Sometimes there were soldiers in the room but for the most part it was only the three of them The door was locked all the time Ivan Bakra and his father spent two or three nights in the room 878 Before their release Ivan Bakra and his father were asked to make a video statement about the conditions in the prison camp Ivan and his father made separate statements before five or six armed soldiers who had come with cameras 879 On the following day Ivan Bakra and his father were blindfolded and taken by a jeep to a small town where they were transferred to UNICEF jeeps and driven to a Serbian police station 880 262 Witness L07 testified that in July 1998 while travelling through Pjetershtice Petrastica he was stopped by members of the KLA 881 L07 was not armed and was in civilian clothes 882 He was then brought by two KLA soldiers to the school in Kroimire Krajmirovce located about 2 or two and a half km away from the place where he was stopped L07 testified that upon his arrival Ramiz 871 872 873 874 875 876 877 878 879 880 881 882 Ivan Bakra T 1426-1428 Ivan Bakra T 1441-1447 Ivan Bakra T 1443-1447 Ivan Bakra T 1450-1455 Ivan Bakra T 1443-1447 Ivan Bakra T 1450 Ivan Bakra T 1458-1460 Ivan Bakra T 1458-1464 Ivan Bakra T 1471-1474 Ivan Bakra T 1474-1476 L07 T 774-776 L07 T 778 95 Case No type Case # type date Qeriqi aka Luan interrogated him 883 L07 was mistreated by a soldier and had one tooth broken He was detained in the school building for about one or two hours 884 L07 was then taken to the KLA headquarters in Kroimire Krajmirovce in the trunk of his own car L07 remained in the trunk for about 30 minutes before two soldiers dressed in KLA uniforms came and gave him some water L07 was then taken to what he believed was Llapushnik Lapusnik 885 Two soldiers took L07 who was blindfolded at the time to a cowshed where he stayed for about 10 minutes after which the hood that had been placed on his face was removed and he was taken outside The hood was almost immediately placed back on his face and L07 was taken to another room In the brief period of time when he was not blindfolded however L07 recognised the hills surrounding Llapushnik Lapusnik L07 was familiar with this area as he had relatives living in Berishe Berisa 886 In the other room L07 saw about five soldiers Among them was Shukri Buja who recognised L07 and ordered his release 887 A person who L07 described as commander Çeliku told a person addressed as “Shale ” who was introduced to L07 as a prison guard to let L07 go home and declared that L07 should feel at home 888 263 At about 1900 hours L07 and “Shale” went to the room located upstairs on the first floor to watch television 889 L07 spent the night together with two “Croatians ” a father and son abducted from the road in Carraleve Crnoljevo and two Kosovo Albanians Faruk Gashi from Shtime Stimlje and Gzim Emini from Carraleve Crnoljevo who were wearing civilian clothes 890 On the following day L07 was taken to a room later identified as the storage room where he was detained for two days and one night 891 Six Kosovo Albanians and six Serbs were already detained in that room Lutfi from Breg-i-Zi Crni Breg Witness L10 and Adem from Godanc Godance a Serb named Mija from Recani Halim Budakova a former Serbian policeman in Shtime Stimlje who had been shot in both knees and two other Serbs 892 L07 was also able to recognize the photographs of Miodrag Krsti Milovan Krsti and Slobodan Mitrovi as having been among the prisoners held in the storage room 893 L07 stated that the room was guarded by Shala 894 There were other KLA 883 884 885 886 887 888 889 890 891 892 893 894 L07 T 777-778 L07 T 778-779 L07 T 781 846 Exhibit P71 para 11 L07 T 790-791 847- 849 Exhibit P71 para 12 L07 T 791-796 L07 T 795-796 808 L07 T 808-809 812 L07 T 814-816 L07 T 817 821 L07 T 817 821-828 With respect to Mija from Recani see also T 825 828 Exhibit P54 L07 T 825 828 Exhibit P54 L07 T 808 831 96 Case No type Case # type date guards in the camp a masked soldier called Hoxha who beat the prisoners on two occasions and Murrizi 895 264 On his second day in the storage room L07 was brought back to the room with the two “Croats” and Gzim Emini 896 L07 was released on the following day and was asked whether he could drive Elmi Qerqini from Carraleve Crnoljevo back to his home to which he agreed 897 Before he left the compound he was asked to write and sign a statement obliging him not to reveal what he had seen in the camp under life threats 898 The following morning at 0300 hours he was given the keys to his car A KLA soldier drove L07’s car with L07 Elmi Qerqini and Gzim Emini who were released the same day to the Arlat Orlate-Malisheve Malisevo road A second KLA soldier was following in another car At the road the soldier returned the keys to L07 and went back in the direction of the prison camp in the second car with the other soldier driving 899 265 Witness L96 testified that on or about 18 July 1998 five KLA soldiers in camouflage uniforms two of whom had KLA badges came to his house 900 The car stopped at the house of his personal relation who was abducted the same way L96 was placed in the soldiers’ vehicle and taken away in the direction of Rance Rance and Lanishte Laniste During the journey L96 was hit with a riffle butt several times 901 After a while his head was covered with a blanket 902 After a quick stop in Rance Rance they continued in the direction of Shtime Stimlje Kroimire Krajmirovce Shale Sedlare Nekoc Nekovce and at Kizhareke Kisna Reka they left the asphalt road and took a mountain road They travelled for about one hour and arrived in front of a metal gate leading to a compound 903 Inside the compound a person addressed as Shala led L96 and his companion up a staircase located on the right side of the building and placed him in a room with no lights 904 The room where L96 was detained had a tap in the left corner a window and another door at the other end It had no furniture except for a carpet and some sponge mattresses 905 L96 described that he was detained with Bajrush Rexhaj Muje Musliu from Belince Belince Sahit Beqaj Alush Luma and a person from Varigove Varigovce 906 During the night soldiers dressed in KLA military uniform brought in an elderly gentleman Shaban Hoti a Russian teacher who was 895 896 897 898 899 900 901 902 903 904 905 L07 T 819 834 923 L07 T 839 L07 T 839 L07 T 839-840 Exhibit P71 para 27 L07 T 840-844 Exhibit P71 para 30 L96 T 2283-2285 2515 L96 T 2285-2288 L96 T 2287-2288 L96 T 2290-2294 Exhibit P97 L96 T 2294 L96 T 2301-2302 97 Case No type Case # type date tied in chains and appeared to have been badly beaten 907 The soldiers dragged him through the room where L96 was detained and took him to the room next door 908 On the following day Musli Musliu was brought in 909 The room remained locked at all times and the detainees were escorted by a guard to the toilets located in the yard 910 On these occasions L96 could see a house with a balcony and other prisoners 911 He could also see and recognise the surrounding hills and he knew he said that he was in the area of Llapushnik Lapusnik 912 The prisoners were guarded by men addressed as Shala and Murrizi and a man whose name was Avdullah aka Seli escorted them to the bathroom 913 266 On the second day of L96’s detention he was placed in a room later identified as the storage room L96 spent four nights and four days there 914 The room had a low ceiling and was about 3 metres long It had a concrete floor with some hay on it two shelves and a window next to the door A bucket used as a toilet was placed behind the door 915 L96 testified that the following persons were detained in the storage room when L96 was brought there Emin Emini Hyzri from Belince Belince Luta from Breg-i-Zi Crni Breg Adem from Godanc Godance and Shefqet Ramadani 916 L96 was able to recognize the photographs of L06 and L10 as being among the prisoners held in the storage room 917 Shaban Hoti was brought into the room on the following day 918 L96 was told that three Serbs a road police officer in Shtime Stimlje who served in Suhareke Suva Reka and was taken from a bus in Carraleve Crnoljevo Boban from Suhareke Suva Reka and Dragan from Zubni Potok were detained in the room earlier as well as Agim from Godanc Godance and Vesel Ahmeti but they were taken away before L96 was brought in Dragan however had committed suicide 919 Shala and Murrizi brought bread and water to the prisoners 920 It is L96’s evidence that he saw other persons in uniform at the camp namely Qerqiz Salihi and a person called Hoxta 921 906 907 908 909 910 911 912 913 914 915 916 917 918 919 920 921 L96 T 2295-2298 2301 L96 was also able to recognize the photographs of Bajrush Rexhaj T 2415 Exhibit P54 Sahit Begaj T 2411 2513 Exhibit P54 and Alush Luma T 2414 Exhibit P54 as being among the prisoners held there L96 T 2312-2315 L96 T 2312-2313 L96 T 2326-2328 L96 T 2303 2309 L96 T 2303 L96 T 2304 2319 L96 T 2302-2303 2309 L96 T 2333 L96 T 2333 L96 T 2336-2337 With respect of Luta Lutfi see also T 2405-2409 Exhibit P54 and with respect of Adem from Godanc Godance see T 2415 Exhibit P54 L96 T 2411 2413 Exhibit P54 L96 T 2336 L96 T 2341-2345 L96 T 2338-2340 L96 T 2488 98 Case No type Case # type date 267 L96 testified that on his last day of his detention the man said to be Shala opened the door and ordered the detainees to go outside L96 saw Shala opening the door of the house from where Alush Luma and the man from Varigove Varigovce came out and the door of the garage from where Safet Hysenaj from Petrove Petrovo came out Shala opened the door of the cowshed and from there many prisoners came out among them Xheladin Ademaj Muje Musliu Hasan Dobreva Hasan Hoxha Hetem Rexhaj Witness L12 Milaim Hoxa from Recak Racak who was holding Shyqeri aka Shyq from Godanc Godance whose leg was broken a young man from Kroimire Kraimirovce and an elderly man 922 Shala ordered the detainees to line up and the column proceeded Another KLA soldier Murrizi was leading the column and Shala remained at the end of the line 923 About 200 metres after they left the compound they turned left towards a mountainous path which went uphill 924 At some point during the march Murrizi asked whether they were going to Berishe Berisa or to Klecke Klecka to which Shala responded “take a left ” After about a km they were ordered to stop in front of a cherry tree and a well where they stayed for about two to three hours 925 Then Shala called the names of Shefqet Ramadani Adem Witness L10 the man from Varigove Varigovce Milaim Hoxha and Muje from Belince Belince Shala set off with this group and walked downhill in the direction of the road to Suhareke Suva Reka 926 After 40 minutes or two hours there being an inconsistency in L96’s evidence Shala returned and called the names of L96 Hetem Rexhaj Xheladin Ademaj Hysri from Belince Belince Hasan Hoxha Safet Hyseni Banush Alush Luma Shyqri Shaban Hoti and Bashkim from Godanc Godance and ordered Murrizi to lead the group to another point They were led to a mountain clearing where Shala ordered the detainees to sit as they were lined up 927 It is L96’s evidence discussed in more detail later in this decision that Shala Murrizi and a third soldier who had joined them shortly after the group had left the prison camp opened fire at the detainees and that L96 managed to make good his escape 928 268 Prosecution witness Dragan Ja ovi a crime investigation policeman in Ferizaj Urosevac testified that in June and July 1998 he received reports about people being abducted and detained at Llapushnik Lapusnik 929 On 27 June 1998 a personal relation of Agim Ademi reported to him that Agim Ademi and Vesel Ahmeti had been kidnapped In early July 1998 he received information from a “registered operative connection” that Agim Ademi Vesel Ahmeti Shyqyri Zymeri and Ademi Ramadani were first taken to a prison in Klecke Klecka and then transferred to a prison in 922 923 924 925 926 927 928 L96 T 2347-2350 2357 2414 L96 T 2351-2352 L96 T 2363 2484-2485 L96 T 2372-2374 L96 T 2376 2385 2387 2486 2413 Exhibit P108 L96 T 2377-2381 2486 Exhibit P108 See infra para 451 99 Case No type Case # type date Llapushnik Lapusnik 930 He further testified that the information that the police received regarding individuals abducted in the municipality of Shtime Stimlje including the villages of Carraleve Crnoljevo Belince Belince Petrove Petrovo and Gornje Godance Godanci-i-Eperm indicated that these persons were taken to a prison in Llapsuhnik Lapusnik located in Gllogovc Glogovac municipality either via Pjetershtice Petrastica Kroimire Krajmirovce Shale Sedlare or from Godanc Godance through various villages to Klecke Klecka 931 Dragan Ja ovi also testified that he received information from two relatives of Hyzri Harjiri that the latter had been kidnapped and taken to a prison in Llapsuhnik Lapusnik In one case the information about Hyzri Harjiri’s detention at Llapushnik Lapusnik came from the KLA staff in Rance Rance 932 All of this information about a prison in Llapushnik Lapusnik is of course hearsay Further elsewhere in this Judgement the Chamber has noted its views about the general credibility of Dragan Ja ovi 933 Nevertheless it is to be noted that the evidence he gave is not inconsistent with a substantial body of first hand evidence about a KLA prison camp in the village of Llapushnik Lapusnik 269 Dragan Ja ovi further testified that on 1 August 1998 he took a statement from L96 who described his detention at Llapsuhnik Lapusnik 934 The same day Dragan Ja ovi L96 and another police officer Momcilo Sparavalo went to the secretariat of the interior in Prishtina Prisitina and then to Llapushnik Lapusnik to carry out an on-site investigation 935 Following the directions of L96 they travelled on the Prishtina Pristina-Peje Pec road in the direction of Peje Pec and about one km after Komaran Komorane turned left They reached a farm house and entered the compound This description is consistent with the alleged location of the compound used as the prison camp Dragan Ja ovi went inside the upper floor of the main building where there were two rooms In the garage L96 found a foam mattress and explained that he had been sleeping there L96 also explained that he had been detained in the room that was meant to be a larder Dragan Ja ovi saw white caps and belts in front of the cowshed 936 L96 confirmed that he visited the compound in which the prison camp was located with Dragan Ja ovi after he had escaped and that he recognised the brown metal doors of the compound and described places he had seen while in detention 937 929 930 931 932 933 934 935 936 937 See Exhibits P205 and 206 Dragan Ja ovi T 5223-5224 5231-5232 Dragan Ja ovi T 5256 Dragan Ja ovi T 5264-5271 See supra para 27 Dragan Ja ovi T 5279 5284 Dragan Ja ovi T 5285-5286 Dragan Ja ovi T 5291-5298 L96 T 2391-2393 100 Case No type Case # type date 270 Ole Lehtinen an investigator with the Office of the Prosecutor testified that he was told by witnesses the location of the prison camp in which they had been detained at Llapushnik Lapusnik and that he had visited that location several times the last one being in the summer and fall of 2003 938 He presented photographs taken at various structures and spaces within this location in 2003 939 These photographs were subsequently shown to witnesses who testified about their detention at Llapushnik Lapusnik Ivan Bakra identified the main room in the main building the storage room and the toilet 940 Vojko Bakra identified the storage room where he and his son were taken 941 L06 identified the storage room where he was held the well the toilet and the cowshed where he was beaten 942 L10 identified the storage room where he was held and the place where he emptied the toilet 943 L96 recognized the room on the upper floor of the house as the room where he was detained 944 L04 identified the cowshed and other places he had seen while in detention as well as the KLA headquarters in another compound across the narrow roadway 945 L07 recognised the room in the main building where he slept the room where he saw the individuals he described as commander Çeliku and Shukri Buja the yard the building where he was detained and the kitchen 946 L12 identified the gates of the compound 947 271 Some witnesses who testified about their detention at Llapushnik Lapusnik were shown sketches or in the case of Ivan Bakra a photograph of the prison compound in Llapsuhnik Lapusnik These sketches were previously shown to the witnesses and each of them had identified and marked the specific locations where they had been detained 948 All witnesses confirmed that they had recognised the place and personally marked the sketches Ivan Bakra Vojko Bakra and L10 also had drawn sketches of the places occupied by various prisoners held in the same rooms with them and confirmed the authenticity of these documents 949 272 There are some inconsistencies in the evidence of some of the witnesses For example L10 testified that on the day of his abduction he was first brought to Klecke Klecka and was held there for about one hour before he was taken to Llapushnik Lapusnik 950 whereas L06 who was abducted 938 939 940 941 942 943 944 945 946 947 948 949 950 Ole Lehtinen T 449 479 Exhibit P5 Exhibit P6 Ole Lehtinen T 466-48 Ivan Bakra T 1426-1427 re Building A1 in Exhibit P6 T 1443-1447 re Building A5 T 1467-1471 re U008-3672 Vojko Bakra T 1326-1329 L06 T 1038-1039 Exhibits P5 and P6 L10 T 2927-2932 Exhibit P6 L96 T 2315-2316 L04 T 1127-1130 Exhibit P5 Exhibit P6 L07 T 800 803 L12 T 1815 Ivan Bakra T 1412-1416 1442-1443 Exhibit P79 L06 T 1035-1037 Exhibit P74 L10 T 2923-2925 Exhibit P123 L96 T 2353-2359 Exhibit P100 L07 T 798-799 864-866 Exhibit P68 Ivan Bakra T 1443-1447 Exhibit P82 Vojko Bakra T 1317-1318 Exhibit P78 L10 T 2925-2927 Exhibit P124 L10 T 2909 2913-2915 101 Case No type Case # type date together with L10 testified that he was taken straight to Llapushnik Lapusnik 951 L06 testified that the group of prisoners who were released at the Berishe Berisa Mountains was told to go to Kizhareke Kisna Reka 952 while L10 testified that they were told to go downhill but instead they decided to go the village of Kizhareke Kisna Reka 953 Further L04 testified that on his last day in detention a guard named Murrizi unchained the prisoners held in the cowshed and later when they went up in the Berishe Berisa Mountains Murrizi released 10 of them 954 while L12 who was abducted together with L04 as well as other witnesses held in the camp testified that it was Shala who took them out of the camp and who released them later at the meadow 955 Further while some witnesses testified that two guards Shala and Murrizi took them to the Berishe Berisa Mountains on the last day of their detention and were there with the prisoners 956 L96 and L10 testified that there was also a third soldier there 957 The evidence of Vojko and Ivan Bakra while largely analogous reveals some inconsistencies related to the circumstances in which Ivan Bakra left the storage room and his and his father’s transfer to a room in the main building as well as to the international organisation to which they were released 958 These inconsistencies do not concern important elements of the fact and circumstances of each witness’ abduction and detention in a prison camp Further in view of the time passed between the described events and the witnesses’ testimonies before the Tribunal such inconsistencies are not surprising or unusual 273 Nevertheless in the Chamber’s view the stories of the witnesses confirm that each of these witnesses had been taken to or detained in a KLA run prison camp The witnesses were abducted in similar circumstances from a road 959 or taken from their homes960 by armed soldiers wearing camouflage or black uniforms 961 black masks 962 or KLA insignias 963 Some of these soldiers were identified as Ali Alush Gashi 964 Ramadan Behluli 965 Shukri Buja 966 Rrahman Tafa 967 Sule Qeriqi and Ali Ramadani all of whom were KLA soldiers 968 The witnesses were blindfolded put in a car 951 952 953 954 955 956 957 958 959 960 961 962 963 964 965 966 967 968 L06 T 990 L06 T 1028-103 L10 T 2964 L04 1192-1195 L12 T 1815-1818 See also L10 T 2963 L96 T 2375-2377 L06 T 1025 1028 L04 T 1194-1195 L12 T 1813-1816 L96 T 2365 L10 T 2962-2963 See Vojko Bakra T 1334-1351 Ivan Bakra T 1458-1464 1471-1474 L06 T 977 L10 T 2907-2909 Vojko Bakra T 1286-1290 Ivan Bakra T 1395-1397 L07 T 774-775 L04 1110-1113 L12 1788 L96 T 2282-2285 L06 T 983 985 L04 T 1110-1113 L12 T 1788-1792 L07 T 781 L96 T 2283-2285 L06 T 979 L10 T 2907-2909 L12 T 1788-1792 L10 2907-2909 L04 T 1110-1113 L96 T 2283-2285 L06 T 984 L04 T 1111 L06 T 984 L12 T 1790-1792 L04 T 1115-1118 L12 T 1789 L04 T 1112 1122 L12 T 1788-1791 102 Case No type Case # type date sometimes in the trunk and driven to a farm compound 969 There an individual referred to as Shala removed the blindfolds and led them to a room where they were held 970 274 The witnesses provided consistent descriptions of the two main rooms where prisoners were held and of the entire farm compound L06 L10 Vojko and Ivan Bakra and L96 described the storage room where they were held as a small room 2 x 3 metres or 3 x 4 metres with a concrete floor one small window and a bucket that functioned as a toilet 971 with some hay and straw thrown over the floor 972 L04 and L12 described the cowshed where they were held as a room where there were other people detained all of whom were chained 973 Vojko Bakra Ivan Bakra and L96 described the metal brown gates to the compound 974 a description consistent with the account of L84 975 275 Further many witnesses identified other witnesses who were detained with them or individuals who were held together with them in the same room at the same time L06 saw L10 and L07 detained in the storage room 976 L10 saw L06 and L96 in the storage room 977 L07 saw L06 in the same room978 and L96 saw L06 and L10 in the storage room 979 All witnesses were detained there with a number of other individuals 980 although the recollection of the precise number varied including Adem from Godanc Godance 981 Lutfi Luta from Breg-i-Zi Crni Breg 982 and Hyzri from Belince Belince 983 Further L04 and L12 described the cowshed where they were held as a room where there were other people detained all of whom were chained 984 L04 and L12 both testified that they were held together with inter alia Shefqhet Ramadani Shyqja from Godanc Godance 985 969 970 971 972 973 974 975 976 977 978 979 980 981 982 983 984 985 986 Elmi Qerqini from Carraleve Crnoljevo 986 Milaim Kamberi from L06 T 990 L10 2910-2911 2913-1916 L04 T 1123 L12 T 1788-1791 1797-1798 Vojko Bakra T 1304-1306 Ivan Bakra T 1410-1411 L07 T 778-781 846 L96 T 2285-2288 L10 T 993-994 L04 T 1124-1125 L12 T 1799 L96 T 2294 L06 T 990-993 995-997 L10 T 2918-2921 Vojko Bakra T 1329 Ivan Bakra T 1443-1444 L96 T 2333 Vojko Bakra T 1329 Ivan Bakra T 1443-1444 L96 T 2333 L04 T 1140-1141 L12 T 1802-1803 Vojko Bakra T 1304-1306 Ivan Bakra T 1412-1416 L96 T 2290-2294 Exhibit P197 para 30 L06 T 1039-1045 L10 T 2923-2925 L07 T 822 L96 T 2411 2413 Vojko Bakra T 1311-1314 Ivan Bakra T 1443-1447 L06 T 999-1001 L10 T 2923-2925 L07 only with respect to Adem from Godanc Godance T 821-828 L96 T 2346-2347 2411 2413 L06 T 1039-1045 L10 T 2923-2925 L07 T 817 821-828 L96 T 2409 2415 L10 T 2923-2925 L04 T 1140-1141 L12 T 1802-1803 L04 T 1131-1136 1139 L12 T 1820-1823 L04 T 1131-1136 L12 T 1820-1823 103 Case No type Case # type date Recak Racak 987 Hete from Petrove Petrovo 988 and Xheladin Xhela Halimi from 989 Petrove Petrovo 276 The evidence of all witnesses is consistent with respect to the presence of guards in the compound All witnesses testified that the guards in the prison were Shala or Shale and Murrizi 990 although some witnesses saw also other uniformed men in the camp namely Tamuli 991 Qerqiz 992 Avduallah 993 Salihi and Hoxta 994 and Witness L64 995 277 The Chamber notes that the evidence of Shukri Buja discussed in more detail elsewhere in this decision 996 suggests that L07 was detained in Ymer Alushani’s aka “Voglushi”’s house in Llapushnik Lapusnik In view of the fact however that L07 provided a detailed description of the prison camp identified the pictures of the prison camp that he was seen there by L06 and that he himself saw prisoners there among them L06 the Chamber cannot accept the evidence of Shukri Buja in this respect and finds that L07 was in fact detained in the same prison camp as the other witnesses 278 Finally all witnesses provided an essentially similar account of the circumstances leading to their release On what appears to be 25 or 26 July 1998997 there was fighting in the vicinity of the prison compound 998 Shala and Murrizi opened the doors of all rooms and structures in the compound and ordered the prisoners to come to the yard then made them walk in a file up into the Berishe Berisa Mountains 999 where they stopped in a meadow near a cherry tree1000 for about an hour At that location a group of about 10 individuals was released and they went to Kizhareke Kisna Reka 1001 279 In view of the above the Chamber is satisfied and finds that the following individuals were among those detained in the KLA run prison camp Witness L06 from 13 or 14 June 1998 to 25 or 26 July1998 Witness L10 from 13 or 14 June to 25 or 26 July 1998 Witness L04 from 28 June to 987 988 989 990 991 992 993 994 995 996 997 998 999 1000 1001 L04 T 1136-1138 L12 T 1820-1823 L04 T 1136-1138 L12 T 1820-1823 L04 T 1136-1138 L12 T 1820-1823 L06 T 997-998 1001 1101-1102 L10 T 2918-2922 L04 T 1175-1179 1192-1194 L12 T 1800-1802 Vojko Bakra 1330-1332 Ivan Bakra T 1458-1460 L07 T 795-798 L96 T 2302-2303 2309 L04 T 1175-1176 L04 T 1172-1173 L96 T 2488 See also L10 T 2917 2922 L96 T 2309 L96 T 2488 Exhibit P197 para 35 See infra paras 456-457 See supra paras 78-81 L06 T 1025 L10 T 2960 L06 T 1025-1028 L10 T 2960-2961 L04 T 1192-1194 L12 T 1813-1815 L96 T 2347-2349 L10 T 2960-2966 L96 T 2372-2374 L06 T 1028-1030 L10 T 2963-2964 L04 T 1194-1198 L12 T 1815-1818 104 Case No type Case # type date 25 or 26 July1998 Witness L12 from 28 June to 25 or 26 July 1998 Vojko Bakra from 29 June 1998 to 6 July 1998 Ivan Bakra from 29 June to 6 July 1998 Witness L07 for three days in July 1998 and Witness L96 from 18 to 25 or 26 July 1998 The Chamber is persuaded that the above mentioned individuals were civilians 1002 The circumstances of the detention of the victims named in the Indictment are considered later in this decision 1003 280 Further in view of the combined effect of this body of evidence the Chamber is persuaded that the prison camp where the above mentioned individuals were held was located in the village of Llapushnik Lapusnik The descriptions of several witnesses of the distance and the road from the place of their abduction to the place where they were detained either indicate Llapushnik Lapusnik as the location of the prison camp or are consistent with this conclusion The car by which L04 was taken turned left from Pjetershtice Petrastica and drove for about an hour before turning left again and arriving at its destination 1004 L96 was taken from his village in the direction of Shtime Stimlje Kroimire Krajmirovce and Shale Sedlare 1005 When compared to a map of the area these accounts indicate that the witnesses may have been taken to Llapushnik Lapusnik 1006 At their release L04 L06 L10 and L12 were told by KLA guards to go to or went to Kizhareke Kisna Reka 1007 which is one of the villages neighbouring Llapushnik Lapusnik 1008 Further witnesses such as L12 and L07 as well as L96 testified that they were able to recognise the landscape surrounding the prison camp from their previous association with Llapushnik Lapusnik 1009 or the mountains where they were taken on the last day of their detention 1010 Others could recognise the prison camp where they were held on the basis of what they saw after their release There were also witnesses who relied on information from their personal relations on which the Chamber does not place reliance for this purpose 1011 281 Of further significance in the view of the Chamber is the consistency and the detail of the witnesses’ description of the farm compound where they had been detained 1012 descriptions which are clearly consistent with the farm compound alleged by the Prosecution Further virtually all 1002 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 See L06 T 983 L10 T 2909 L12 T 1786 See infra paras 319-446 L04 T 1123-1124 L96 T 2290-2294 See Exhibit P1 Map 5 L04 T 1196-1198 L06 T 1028-1030 L10 T 2964-2965 L12 T 1818 See Exhibit P1 Map 5 L06 T 1068 L04 T 1272-1273 L12 1815-1816 L12 T 1815-1816 L07 T 790-791 847 849 L96 T 2304 2319 See L10 T 2960-2966 See supra para 274 105 Case No type Case # type date witnesses who testified about their detention at a farm compound recognised and identified the photographs of the alleged farm compound at Llapushnik Lapusnik tendered by Ole Lehtinen 1013 282 On these bases the Chamber is convinced and finds that from mid June 1998 at the latest to 25 or 26 July 1998 a prison camp conducted by the KLA existed in the village of Llapushnik Lapusnik to the south of the Peje Pec-Prishtina Pristina road The Chamber accepts that the compound depicted on Exhibits P5 and P6 and marked as buildings and structures A1 to A9 was the location of the prison camp and the place of detention or imprisonment by the KLA of Witness L06 Witness L10 Witness L04 Witness L12 Vojko and Ivan Bakra Witness L07 and Witness L96 and many others 2 Crimes in or around the Llapushnik Lapusnik prison camp Counts 4 6 and 8 283 The Prosecution alleges that from about May 1998 through to about 26 July 1998 KLA forces under the command and control of the Accused Fatmir Limaj and Isak Musliu held the detainees at the Llapushnik Lapusnik prison camp under conditions that were brutal and inhumane and routinely subjected them to physical and psychological assaults including torture and beatings The Prosecution submits that all three Accused participated in maintaining and enforcing the inhumane conditions at the prison camp which included inadequate food and medical care and participated in or aided and abetted the torture and beatings of the detainees 1014 The Chamber previously found that Article 5 was not applicable in the present case and that the offence of cruel treatment based on the unlawful seizure interrogation and forcible transfer of individuals Count 2 had not been established Thus the above allegations now support only one count of torture and one count of cruel treatment as a violation of the laws or customs of war respectively Count 4 and Count 6 The Prosecution further alleges that from a date in or about June 1998 through to around 26 July 1998 the three Accused committed or otherwise aided and abetted the crime of murder of fourteen detainees at or around the Llapushnik Lapusnik prison camp 1015 These allegations now support one count of murder as a violation of laws or customs of war Count 8 284 The Chamber has established in previous sections of this Judgement that a number of individuals have been detained for varying periods of time in a compound located at Llapushnik Lapusnik and used as a prison camp until 25 or 26 July 1998 Detainees were held in different locations at the prison camp namely the storage room the cowshed and some rooms located into the main house of the compound and in the garage 1013 1014 1015 See supra para 270 Indictment paras 25-26 Indictment paras 29-32 106 Case No type Case # type date a Conditions of detention 285 The conditions of detention in the cowshed were according to the witnesses who were held there very difficult Two former detainees testified that the room which was hot 1016 had only a small window the floor was made of concrete and there was dung and blood on the floor 1017 On L04’s evidence the detainees were not allowed to go to the toilet outside and those who were tied or chained sometimes to other detainees had to relieve themselves in their clothes where they sat and slept 1018 There were no washing facilities 1019 The atmosphere and smell were described as stifling 1020 L12 stressed during the proceedings that they were at times only fed once every few days They were however provided with some water in plastic bottles 1021 286 Prisoners held in the storage room were not proffered better treatment Several witnesses testified that up to 13 or 15 detainees 1022 some tied up 1023 were confined all day in the storage room which was about 2 by 3 or 4 metres with a low ceiling 1024 Ivan Bakrač explained that detainees were not allowed to speak to each other 1025 Former prisoners testified that the room had only a small window and that the iron door was always closed 1026 Witnesses testified that at the beginning the room was cold and wet because of a leak in the ceiling but after a few days it became intolerably hot not only because it was summer but also because there was no ventilation 1027 the temperature and the smell also soon became unbearable given that the prisoners had to sleep relieve themselves and eat in that room 1028 On L96’s evidence there was not enough space for the detainees to stretch out Every three or four days Shala would open the door to let the detainees walk a little outside in the evening 1029 This was corroborated by L061030 and L07 who further explained that the window remained open all the time and the door would be opened from 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 1028 1029 1030 L12 T 1802-1805 L12 T 1802-1803 L04 T 1140-1141 L04 T 1140-1141 L64 T 4901-4902 L12 T 1805 L07 T 821 Vojko Bakra T 1311-1318 Exhibit P78 L06 T 999 Exhibit P99 L10 T 2918-2921 L10 testified that some detainees were handcuffed to one another and that he was himself handcuffed to Fehmi Xhema On L10’s evidence Emin Emini was tied to the window L06 confirmed that two prisoners were tied by their hands with handcuffs and testified that he was himself tied with 10kg of chains and could not move T 993-994 L96 T 2333 Ivan Bakra T 1443-1447 according to him the room was about 2 metres by 4 metres Vojko Bakra T 1311-1314 L07 T 829 L10 T 2918-2921 L06 T 995-996 Ivan Bakra T 1447-1449 Vojko Bakra testified that the detainees only spoke when necessary and even then they whispered T 1311-1314 On L06’s evidence prisoners did not dare to speak to one another because Shala warned them that they would be punished if they did T 999 L10 T 2918-2921 L06 T 995-997 Ivan Bakra T 1450-1455 L10 T 2918-2921 L07 T 829 L06 T 995 L96 T 2333 2339 Ivan Bakra T 1450-1455 L10 T 2918-2921 L06 T 995-997 L96 T 2339 L06 T 997-998 107 Case No type Case # type date time to time which allowed some fresh air in 1031 Further witnesses testified to sleeping on a little carpet on the concrete floor which was at first very wet as they were not provided with any other bedding although some hay was brought at some point 1032 Former prisoners stressed that none of the detainees in the storage room were allowed to go to the toilet outside and that they therefore had to use a bucket placed behind the door 1033 This was not regularly emptied L06 testified that during the first two weeks of his detention as there was no bucket yet the detainees had to relieve themselves on the floor behind the door 1034 On Ivan Bakrač’s evidence the detainees were confined in such an environment twenty four hours a day with no possibility to leave and no facilities for washing or cleaning 1035 The prisoners in the storage room testified to receiving some food soup or bread once or twice a day from guards they referred to as Shala or Murrizi although at times they did not receive food every day 1036 According to Ivan Bakrač the food the detainees received looked more like animal fodder than anything that was fit for humans 1037 However L07 was of the view that at the time he was there the detainees received sufficient food and like L06 he stated that there was sufficient water available 1038 In general L07 testified that the detainees lived under “quite difficult conditions ”1039 On Ivan Bakrač’s evidence the detainees received cigarettes in fact more than needed and were allowed to smoke in the room 1040 No medical care was provided despite the fact that some detainees had sustained serious injuries when taken into custody by the KLA or in the prison camp when beaten by KLA members 1041 It is to be noted that a medical clinic operated in the village from the end of May until 25 or 26 July 1998 1042 287 L96 L07 Vojko and Ivan Bakrač provided evidence with regard to the conditions of detention in the main house of the compound although they seemed to have been held in different locations in the house and in different circumstances 1043 On L96’s evidence upon his arrival at the Llapushnik Lapušnik prison camp he was taken into a room where he was locked along with other prisoners The door was only opened by men he referred to as Shala and Murrizi 1044 L96 testified that the detainees had access to water as there was a tap in the room and that there was no furniture 1031 1032 1033 1034 1035 1036 1037 1038 1039 1040 1041 1042 1043 1044 L07 T 829 832 L07 T 821 828 Ivan Bakra T 1450-1455 Vojko Bakra T 1329 L10 T 2918-2921 Exhibits P82 P99 and P126 L10 T 2918-2921 2931-2932 Ivan Bakra T 1443-1447 Vojko Bakra T 1329 L96 T 2333 L07 T 830-831 L06 T 996-997 Ivan Bakra T 1450-1455 L96 T 2338-2340 L10 T 2918-2921 Ivan Bakra T 1450-1455 L07 T 829 L06 T 997 L07 T 831 Ivan Bakra T 1450-1455 Ivan Bakra T 1450-1455 L06 T 997 L10 T 2918-2921 L07 T 825-828 Dr Zeqir Gashi T 5604-5606 See supra paras 257-258 260-261 263-266 L96 T 2309 108 Case No type Case # type date in the room except for a carpet and some foam mattresses 1045 Still on L96’s evidence the detainees received some food which consisted of other peoples’ leftovers They were allowed outside to go to the toilet located in the yard but only under escort and with the permission of the man he referred to as Shala 1046 288 It is apparent from the evidence presented in this trial and the Chamber finds that the material conditions of detention in the storage room and the cowshed were appalling In the Chamber’s view it clearly emerges from the evidence that food and water were not provided regularly and that there were no cleaning washing or sanitary facilities Both the cowshed and the storage room were not adequately ventilated and at times were overcrowded especially the storage room Even though the detainees were allowed outside the storage room once in a while to be able to have some fresh air the atmosphere and conditions in the room remained deplorable There were no sleeping facilities either in the storage room or the cowshed which was exacerbated by overcrowding particularly in the storage room Detainees in the cowshed were typically chained to the wall or tied to other detainees No medical care was provided although readily available 1047 289 Leaving aside for the present the question of the criminal responsibility of the three Accused on the basis of the foregoing the Chamber finds that the deplorable conditions of detention in both the storage room and the cowshed at the Llapushnik Lapusnik prison camp were such as to cause serious mental and physical suffering to the detainees and constituted a serious attack upon the dignity of the detainees Further given the extensive period of time over which these conditions were maintained without improvement the Chamber is satisfied that they were imposed deliberately In the Chamber’s finding detention in either the cowshed or the storage room was in conditions which constituted the charged offence of cruel treatment Count 6 On the limited evidence available it appears that the conditions in the main house were not similar to those in the cowshed or the storage room The evidence is not sufficient to demonstrate that detention in the main house per se constituted the offence of cruel treatment b Cruel treatment torture and murder i Vojko and Ivan Bakrač 290 The Chamber has already found that Vojko and Ivan Bakrač were detained by the KLA in the storage room at the Llapushnik Lapusnik prison camp from 29 June 1998 to 6 July 1998 1048 1045 1046 1047 1048 L96 T 2301-2302 L96 T 2302-2303 Dr Zeqir Gashi T 5604-5606 See supra para 279 109 Case No type Case # type date The Chamber is also satisfied therefore that Vojko and Ivan Bakrač were not taking an active part in hostilities during that time 291 Neither Vojko nor Ivan Bakrač testified to being beaten at the Llapushnik Lapusnik prison camp Both men however testified to witnessing other prisoners being beaten by KLA soldiers on a daily basis mostly at night 1049 On Ivan Bakrač’s evidence prisoners would be woken up with flashlights and mistreated sometimes several times a day 1050 Vojko Bakrač testified that a fellow prisoner in the storage room Stamen Genov was taken out of the basement and brought back half an hour later beaten up 1051 On Ivan Bakrač’s evidence Shala was present during some of the beatings 1052 Vojko and Ivan Bakrač recounted in particular how one night Stamen Genov begged other detainees to strangle him because he could not endure the beatings any longer Ivan Bakrač put into words how none of the detainees could bring themselves to respond to Stamen Genov’s plea and how traumatic it was to watch him suffer in his condition 1053 Ivan Bakrač testified to being scared like his father not knowing whether his captors would kill them or eventually let them go 1054 292 The Prosecution argues that the fact that the Bakračs were forced to witness beatings including in particular a mock execution 1055 as well as the threat proffered to Vojko Bakrač that his son could be killed 1056 constituted instances of torture inflicted with a view to punishing intimidating or discriminating against the victims 1057 293 The Chamber accepts that the Bakračs were personally affected by seeing detainees being beaten and the resulting injuries as well as the fear each of them had in the circumstances especially at times when each of them saw the other taken away knowing then all too well despite their short detention in the storage room the fate that usually awaited prisoners who were taken out of the room The detainees in general and among them the Bakračs were clearly compelled to live 1049 1050 1051 1052 1053 1054 1055 1056 1057 Vojko Bakra T 1332-1334 Ivan Bakra T 1455-1458 See also Exhibit P202 Ivan Bakra T 1456 Vojko Bakra T 1332 Ivan Bakra T 1457 Vojko Bakra T 1332-1333 Ivan Bakra T 1455-1458 Ivan Bakra T 1455 Vojko Bakra described “an unpleasant situation” as they were forced to watch the beating of four or five men and a mock execution as a result of which one of them was unable to stand at all On Vojko Bakra ’s evidence a man armed with a pistol handed over the weapon to another soldier telling him to kill the prisoners The soldier complied and put the pistol next to one of the prisoner's forehead but the weapon had no bullet On Vojko Bakra ’s evidence “ t hey the men who were beaten were crying begging for mercy Then this first man took the pistol put it next to the other man's forehead and fired it but it was empty I think it was some kind of psychological torture ” Vojko Bakra testified that he was then told that the men who were beaten were considered traitors to their people T 1341-1342 Vojko Bakra further explained that one evening as his son and him heard gunshots outside the house a man armed with a pistol came and told him that he could kill his son after which Vojko Bakra explained that he was shocked “started shaking and … probably had a nervous breakdown” T 1345 Prosecution Final Brief paras 418-419 110 Case No type Case # type date with the ever-present fear of being subjected to physical abuse if not death and in a constant atmosphere of anxiety enhanced by what seemed to them to be an arbitrary selection of detainees for abuse 294 Leaving aside for the present the question of the criminal responsibility of the three Accused the Chamber finds that by virtue of their particular experiences which have just been discussed the Bakračs endured severe psychological suffering and that such suffering was deliberately imposed on them by their captors In addition the Chamber has already found that the conditions of detention in the storage room were in themselves such as to amount to cruel treatment 1058 The offence of cruel treatment Count 6 is therefore also established by virtue of these matters in respect of each Vojko and Ivan Bakrač The Chamber is not able to be satisfied however that the evidence is sufficient to establish the infliction of psychological suffering serious enough to establish the offence of torture Moreover there is no evidence to demonstrate the perpetrators’ specific purpose when these things occurred and more than one inference as to purpose is open on the evidence Hence the specific mental element of the offence of torture has not been proved in respect of either of the Bakračs Count 4 ii Witness L07 295 As found above L07 was detained by the KLA in the Llapushnik Lapusnik prison camp for three days in July 1998 1059 The Chamber is also satisfied therefore that L07 was not taking active part in hostilities during his detention 296 L07 testified that upon his arrival at Llapushnik Lapusnik prison camp he was immediately taken by two soldiers to the cowshed 1060 L07 further explained that later that evening he was taken to the first floor of the main house 1061 L07 testified that the next day a man wearing a mask came in the middle of the night and ordered him to get dressed 1062 L07 was then led outside where another man in military uniform was waiting next to a vehicle 1063 The two men then started to beat him up 1064 kicked him in the stomach 1065 and while holding his arms kicked him in the ribs 1066 On L07’s account a man he says was Murrizi was also present holding a firearm but did not 1058 1059 1060 1061 1062 1063 1064 1065 1066 See supra para 289 See supra para 279 L07 T 790 L07 T 808-809 812 Exhibit P71 paras 15-16 L07 T 816-817 L07 T 817 L07 T 816-817 Exhibit P71 para 18 L07 stated that the beating took place outside the building marked with the rooms “1” and “2” on Exhibit P68 and continued to the doorway in the building marked “P” T 820 L07 T 819 L07 T 817 111 Case No type Case # type date intervene 1067 L07 was then taken into the storage room 1068 where he was detained for two days 1069 On L07’s evidence there were already twelve people in the room 1070 L07 recounted that the detainees were physically mistreated on two occasions 1071 when guards entered the storage room and slapped detainees 1072 except L07 because the guard whom he referred to as “Shale”1073 or Shala 1074 prevented the other guards from mistreating him 1075 L07 testified that they were verbally abused while detainees were slapped 1076 297 Leaving aside for the present the criminal responsibility of the three Accused as discussed earlier the Chamber has found that the conditions of detention in the storage room were such that detention there constituted cruel treatment 1077 The Chamber also accepts L07’s evidence that he was beaten in the way he indicated while detained at the Llapushnik Lapusnik prison camp Therefore on the basis of each of these personal mistreatments of L07 and his conditions of detention separately or together the Chamber finds that the offence of cruel treatment Count 6 has been established in respect of L07 There is no evidence which indicates that L07 was beaten for a specific purpose or that the mistreatment reached the degree of seriousness required for the offence of torture The Chamber therefore concludes the elements of the offence of torture Count 4 have not been established in relation to L07 iii Witness L10 298 The Chamber has already found that L10 was detained by the KLA in the storage room at the Llapushnik Lapusnik 1078 to 25 or 26 July 1998 prison camp for a period from 13 or 14 June 1998 The Chamber is also satisfied therefore that he was not taking an active part in hostilities during that time 299 L10 testified that upon his arrival at Llapushnik Lapusnik prison camp some people began to curse him to shout at him “why are you here ” and to beat him 1079 L10 explained that he was then brought the storage room where his hands were tied again 1080 On L10’s evidence the blindfold was removed once he was inside and masked soldiers asked him to name spies in his 1067 1068 1069 1070 1071 1072 1073 1074 1075 1076 1077 1078 1079 L07 T 819 L07 T 819-820 L07 T 798-799 821 829 Exhibits P6-A5 P68 P71 para 19 24 L07 T 821 L07 T 833 L07 T 833 L07 T 796 L07 T 810 L07 T 833 L07 T 834 See supra para 289 See supra para 279 L10 T 2916 112 Case No type Case # type date village 1081 L10 responded that he did not know that he was himself not a spy and that he knew nobody who was one 1082 Later during his testimony when asked whether he was ever personally beaten after he arrived at Llapushnik Lapusnik prison camp L10 replied that he was beaten the “first time when they brought me out of the car and put me inside ” L10 was then further asked whether he was ever beaten again to which he responded “ o ne of them kicked me twice but I can't exactly remember who he was There was a masked person After -- he kicked me twice After that no more They didn't beat me anymore ”1083 It was also L10’s evidence that on one occasion when he emptied the bucket that served as a toilet a guard he said was Shala pointed a gun at his head and told L10 not to raise his head or he would be killed 1084 L10 further testified to witnessing the beatings of other detainees 1085 He also explained that during his detention he was taken along with other detainees by the individual he referred to as Shala to a location where they were forced to dig graves and bury the corpses of three individuals “covered with blood bruised in their faces … half of their head was cut off ”1086 On L10’s words “it was a horrible sight to see ”1087 300 The Chamber has already found that the conditions in the storage room were such that detention there constituted the offence of cruel treatment 1088 The Chamber accepts L10’s evidence outlined above On this evidence he was beaten at the Llapushnik Lapusnik prison camp by KLA guards on two occasions although there is no evidence as to the precise circumstances or the perpetrators of these beatings He was also compelled to bury other detainees’ corpses corpses which were disfigured by abuse before death which in the Chamber’s view accentuated L10’s suffering as did the threat proffered to L10 301 Leaving aside the question of the criminal responsibility of the three Accused the Chamber finds that the elements of the offence of cruel treatment Count 6 have been established in relation to L10 on the basis of each of the physical and psychological mistreatment inflicted upon him and the conditions of detention whether separately or together 302 The evidence is not clear however whether the KLA guards who interrogated L10 about spies in his village were the same persons who mistreated him or whether the interrogation was associated with the mistreatment On this basis the Chamber is unable to conclude that the 1080 1081 1082 1083 1084 1085 1086 1087 L10 T 2916 L10 T 2916 L10 T 2917 L10 T 2935-2936 L10 T 2920 L10 T 2936-2937 L10 T 2943-2944 L10 T 2943-2946 113 Case No type Case # type date beatings were administered for a specific purpose It necessarily follows that the elements of the offence of torture Count 4 have not been established in relation to L10 iv Witness L06 303 The Chamber found that L06 was detained by the KLA in the storage room at the Llapushnik Lapusnik prison camp for a period from 13 or 14 June 1998 to 25 or 26 July 1998 1089 The Chamber is also satisfied therefore that he was taking no active part in hostilities at the time 304 L06 testified that during his detention he had both his hands tied with a 10 kg chain which made it almost impossible to move 1090 L06 stated that about a week after his arrest an individual he referred to as Shala came to the storage room and untied his chains during the day 1091 L06 testified that that night Ali Gashi and Ramadan Behluli blindfolded him tied his hands behind his back and took him to the manure They asked him why he was selling wood to the Serbs and asked him to “talk about the spies” 1092 Still on L06’s evidence Ramadan Behluli then repeatedly struck him on his back with a club and Ali Gashi beat him with his hand on both sides of the neck 1093 L06 explained that the beating lasted for about twenty minutes after which he was brought back to the storage room 1094 On L06’s evidence he suffered pain in his head neck and back for the next ten days 1095 The Chamber notes that L06’s account was generally confirmed by L10 as far as the beatings are concerned 1096 although there are discrepancies in their testimony with respect to the identities and role of the assailants of L06 which are considered elsewhere in this decision 1097 305 Leaving aside for the present the question of the criminal responsibility of the Accused the Chamber has already found that the conditions of detention in the storage room were such that detention there amounted to cruel treatment 1098 These conditions of detention alone and quite separately the fact that L06 was shackled with a 10 kg chain for much of his detention and was severely beaten lead the Chamber to find that the elements of the offence of cruel treatment have been satisfied with respect to L06 Count 6 306 The Chamber is further satisfied that a severe level of violence was inflicted upon L06 and that his assailants mistreated him for a specific purpose i e punishing him and or obtaining 1088 1089 1090 1091 1092 1093 1094 1095 1096 1097 See supra para 289 See supra para 279 L06 T 993-994 L06 T 1007 L06 T 1007-1008 L06 T 1010-1011 L06 T 1011 L06 T 1011 L10 T 2937-2939 See infra paras 330 and 654 114 Case No type Case # type date information concerning so-called spies who were allegedly operating in his village Leaving aside the criminal responsibility of the three Accused the Chamber therefore finds that the elements of the offence of torture Count 4 have been satisfied in relation to L06 v Witness L96 307 L96 was in the Chamber’s finding detained by the KLA in the main house and the storage room at the Llapushnik Lapusnik prison camp for a short period of time before and until 25 or 26 July 1998 1099 The Chamber is also satisfied therefore that he was taking no active part in hostilities at the time 308 L96 testified to having been mistreated immediately upon his arrival at the Llapushnik Lapusnik prison camp On L96’s evidence when he was brought into the room located in the main house he was beaten for about half an hour in the dark by a man he referred to as Shala 1100 L96 testified that during his detention a man L96 purported to identify as Isak Musliu came to the room in the main house accompanied by Murrizi and by a soldier armed with a Kalashnikov 1101 L96 explained that the three men passed through the room where he was detained and went to the adjacent room 1102 A few minutes later Murrizi ordered L96 to come and to stand next to the wall It was L96’s evidence that the man said to be Isak Musliu then ordered Murrizi to tie L96’s hands with a chain and the soldier armed with the Kalashnikov slapped L96 on his face with such brutality that L96 fell on his knees L96’s evidence is that the man he purported to identify as Isak Musliu then made a karate move and gave him a really hard blow making L96 fall on the ground with his hands tied 1103 L96 explained that that same man then started to kick him “without any control on himself” and that for a short period he lost consciousness because of the beating 1104 L96 further testified that he was then brought to the storage room where he was detained he believes for four days and four nights until the prison camp was evacuated which the Chamber found was on 25 or 26 July 1998 and the detainees were all gathered in the yard and led under KLA escort to the Berishe Berisa Mountains 1105 309 Elsewhere in this decision 1106 the Chamber has recorded that it has significant reservations about the general credibility of L96 and the reasons for this The Chamber is not able to accept the 1098 1099 1100 1101 1102 1103 1104 1105 1106 See supra para 289 See supra para 279 L96 T 2295-2296 2299 2512 L96 T 2329-2330 L96 T 2329 L96 T 2329-2330 L96 T 2330 L96 T 2333 See supra para 26 115 Case No type Case # type date evidence of L96 on an issue therefore unless it is satisfied that there is other evidence which it accepts which confirms the evidence of L96 on that issue at least in a material particular Leaving aside for the present the question of the criminal responsibility of the three Accused the Chamber has already found that the conditions of detention in the storage room were such as to constitute the offence of cruel treatment 1107 As found above 1108 the evidence of other detainees sufficiently confirms that L96 was detained in the prison camp as he says The condition of his detention therefore leads the Chamber to conclude that the elements of the offence of cruel treatment have been established with respect to L96 Count 6 The Chamber is however not able to be satisfied to the required standard that he was beaten and mistreated as he described in his evidence so that the offence of cruel treatment Count 6 or the offence of torture Count 4 have not been established on this basis with respect to L96 vi Witness L04 310 L04 was in the Chamber’s finding detained in the cowshed in the Llapushnik Lapusnik prison camp from around the end of June to 25 or 26 July 1998 1109 The Chamber is also satisfied therefore that he was taking no active part in hostilities at the time It is in L04’s evidence that in the course of his detention at the prison camp he was himself mistreated and witnessed other prisoners detained in the cowshed being continuously beaten by KLA soldiers at the camp 1110 311 In one instance L04 testified two KLA soldiers whom he referred to as Tamuli and Shala came to the cowshed blindfolded him and took him to a room where a man whom L04 said was Qerqiz was waiting It is L04’s evidence that as soon as L04 entered the room Qerqiz insulted him and began beating him with a stick while Tamuli kicked him 1111 L04 testified that Qerqiz then threw him on the floor kicked him and twisted his arm 1112 L04 testified that up until today he has pain to his right leg and arm due to the beating he sustained 1113 The Chamber accepts L04’s evidence that he was mistreated on this occasion by KLA members 312 L04 further testified that on another occasion he and two other prisoners were taken by Shala from the Llapushnik Lapusnik prison camp to an unknown location in the mountains where they were required to bury the bodies of three men 1114 L04 testified that one of the men he was 1107 1108 1109 1110 1111 1112 1113 1114 See supra para 289 See supra para 279 See supra para 279 L04 T 1126-1127 1172-1173 1175-1177 L04 T 1175-1176 L04 T 1175-1176 L04 T 1206-1207 L04 T 1187-1189 116 Case No type Case # type date told to bury was Agim Ademi a fellow detainee at the prison camp 1115 He did not identify the other two bodies As detailed elsewhere in this decision 1116 L10 also gave evidence about this incident 1117 The bodies showed evidence of maltreatment 1118 The Chamber accepts that this incident occurred and that the circumstances would have subjected L04 to a degree of psychological trauma 313 On the basis of the foregoing leaving aside for the present the issue of criminal responsibility of the three Accused the Chamber is satisfied that in the course of his detention by the KLA in the cowshed at the Llapushnik Lapusnik prison camp L04 was subjected to physical and mental mistreatment The physical mistreatment sustained caused an impairment of his right leg and arm which to the present day still causes him pain The Chamber also accepts that the circumstances surrounding the burial of corpses during L04’s detention would have subjected L04 to a degree of physical suffering and psychological trauma sufficient to amount to cruel treatment Accordingly the Chamber is satisfied that the offence of cruel treatment Count 6 has been established with respect to L04 both by virtue of the conditions of detention and also because of the physical and psychological mistreatment inflicted on him However there is no evidence before the Chamber that the perpetrators acted pursuant to one or more of the purposes required to constitute the offence of torture The offence of torture Count 4 has therefore not been established with respect to L04 vii Witness L12 314 L12 was in the Chamber’s finding detained in the cowshed at the Llapushnik Lapusnik prison camp from around the end of June 1998 until 25 or 26 July 1998 1119 It has also been established therefore that L12 was not taking an active part in the hostilities at the time 315 L12 testified that upon his arrival at the camp a KLA soldier he referred to as Shala took him to the cowshed and chained him to the wall He explained that his hands were tied to a wooden structure attached to the wall and that he was chained as if he were an animal 1120 L12 testified that once he was chained to the wall Shala began to beat him with a stick It is L12’s evidence that he was beaten on his ribs hands legs and head until he lost consciousness 1121 L12 gave evidence that 1115 1116 1117 1118 1119 1120 1121 L04 T 1187-1189 L04 speaks about “Agim from Godance” Later in his testimony however L04 identified Agim Ademi by photograph as the man he referred to as “Agim from Godance” T 1199 See infra paras 400-402 L10 T 2943-2945 L04 T 1189 See supra para 279 L12 T 1799 L12 T 1800 117 Case No type Case # type date the pain resulting from the beating lasted for three or four days 1122 L04 who was detained in the cowshed with L12 testified that he witnessed this mistreatment It is L04’s evidence that on L12’s arrival in the prison camp in June 1998 L12 was beaten by a man L04 said was Shala with a stick until L12 lost consciousness 1123 It is L04’s evidence that L12 was hit “59 times with the same stick” 1124 The Chamber accepts that L12 was seriously mistreated on this occasion 316 On L12’s evidence some days after his arrival at the camp the individual referred to as Shala came to the cowshed blindfolded L12 and took him to a barn located 500 metres away from the cowshed where L12 was beaten 1125 L12’s evidence however is unclear as to whether he was beaten with the fists by two women or by four individuals 1126 The Chamber cannot therefore make a finding as to the number or the identity of L12’s assailants although it accepts L12’s evidence that Shala took him to the barn The Chamber also accepts L12's evidence that he was seriously mistreated on this occasion L12 testified that while he was beaten he was asked about the whereabouts of an individual and that the beating stopped when he answered that “the Serbs had killed him” 1127 L12 explained that until the present day his body is covered with scars due to the beatings sustained at the Llapushnik Lapusnik prison camp during his detention there and that he is unable to work because of the pain he still endures 1128 317 L96 also gave evidence that on his last day of detention at the Llapushnik Lapusnik prison camp which the Chamber found was on 25 or 26 July1998 he saw L12 amongst the other prisoners leaving the prison camp and on L96’s evidence L12 was in a “very bad shape ”1129 318 On the basis of the foregoing leaving aside for the present the issue of the criminal responsibility of the three Accused the Chamber is satisfied that during the period of his detention by the KLA in the cowshed at the Llapushnik Lapusnik prison camp L12 was subjected to physical mistreatment as described in his evidence as a result of which L12 still endures pain As found earlier 1130 the Chamber is satisfied that the conditions of detention in the cowshed were such that detention there constituted the offence of mistreatment Accordingly the Chamber is satisfied that the offence of cruel treatment Count 6 has been established with respect to L12 This is established both by virtue of the detention and quite separately or together by virtue of the psychological and physical mistreatments inflicted on L12 In addition the Chamber is of the view 1122 1123 1124 1125 1126 1127 1128 1129 1130 L12 T 1801 L04 1125-1126 L04 1125-1126 L12 T 1808-1809 L12 T 1808-1810 L12 T 1808-1810 L12 T 1829 L96 T 2413-2414 See supra para 289 118 Case No type Case # type date that the mistreatment inflicted on L12 reached the degree of seriousness required for the offence of torture and was specifically inflicted to obtain information from him The offence of torture has therefore been made out with respect to L12 Count 4 viii Ajet Gashi 319 Shefqet Gashi declared in a written statement that Ajet Gashi a Kosovo Albanian was arrested at the end of May 1998 when reporting to the KLA headquarters in Likofc Likovac together with Rahim Kryesiu It is not clear whether Ajet Gashi enlisted in the ranks of the KLA voluntarily or was summoned to the headquarters 1131 It is Shefqet Gashi’s understanding that Ajet Gashi was kept at the headquarters supposedly because he was thought to be a spy working in collaboration with Serbian forces 1132 Ajet Gashi was not seen again until his body was discovered near Leletiq Laletic and his death reported by newspapers in mid June 1998 1133 320 Shefqet Gashi stated that he overheard a discussion conducted between unnamed KLA soldiers who mentioned Ajet Gashi’s detention at a prison camp in the village of Llapushnik Lapusnik 1134 L64 testified that he first saw Ajet Gashi at the Llapushnik Lapusnik prison camp sometime in early June 1998 1135 L64 had heard talk of the presence of a “big spy” at the Llapushnik Lapusnik prison camp 1136 He was taken by Ymer Alushani to a room at the Llapushnik Lapusnik prison camp 1137 when Ymer Alushani opened the door he made reference to “spies ”1138 According to L64 there were three or four persons in that room One of the persons was lying on the floor either unwell or somehow incapacitated 1139 Ymer Alushani ordered him not to move 1140 The individual appeared to have lost the ability to stand 1141 L64 concluded that the individual who was lying on the ground was the “big spy” of whom he heard mention 1142 L64 claimed that his name was Ajet Gashi about whom various rumours circulated Ajet Gashi was purportedly collaborating with the Serbian forces in Lipjan Lipljan 1143 L64 stated that he heard that Ajet Gashi received a salary for this work 1144 L64 also heard rumours concerning Ajet Gashi’s 1131 1132 1133 1134 1135 1136 1137 1138 1139 1140 1141 1142 1143 1144 Exhibit P183 L64 T 4475 L64 T 4475 Exhibit P183 Exhibit P183 Exhibit P183 L64 T 4456 L64 T 4456 L64 T 4456-4457 L64 T 4458 L64 T 4457 L64 T 4457 L64 T 4457-4458 L64 T 4458 L64 T 4457-4458 4476 L64 T 4476 119 Case No type Case # type date alleged mistreatment of a Kosovo Albanian student 1145 L64 stated that Ajet Gashi was in the Llapushnik Lapusnik prison camp for some time before he was executed 1146 321 The Chamber does not accept that Ajet Gashi was satisfactorily identified by L64 as being present at the Llapushnik Lapusnik prison camp In addition to the reservations expressed by the Chamber elsewhere in this Judgement about the general credibility of L64 in relation to his account of Ajet Gashi’s detention the Chamber finds L64’s testimony unpersuasive L64 provides no discernable basis for claiming that the individual he saw at the Llapushnik Lapusnik prison camp was Ajet Gashi 1147 It is unclear how L64 learned that Ajet Gashi was the “big spy” being detained at Llapushnik Lapusnik as he did not know Ajet Gashi previously 1148 L64 identified the man he believed to be Ajet Gashi only by inference and supposition 1149 He apparently heard from individuals unknown to the Chamber that the “big spy” at Llapushnik Lapusnik and Ajet Gashi were one and the same individual 1150 However in a previous statement to investigators L64 stated that he did not know Ajet Gashi and was not aware that Ajet Gashi was held in Llapushnik Lapusnik 1151 No other viva voce witness called by the Prosecution identified Ajet Gashi or referred to him as a prisoner at the Llapushnik Lapusnik prison camp Shefqet Gashi’s written statement notes that he overheard someone who was not identified saying that Ajet Gashi was detained at Llapushnik Lapusnik 1152 The Chamber can place little weight on this In light of these circumstances the Chamber is not satisfied that Ajet Gashi was a detainee at the Llapushnik Lapusnik prison camp 322 It is also necessary to comment upon the circumstances of Ajet Gashi’s alleged murder and the testimony provided by L64 on this issue The Prosecution alleges that Ajet Gashi was murdered on or about 12 June 1998 1153 Ajet Gashi’s body was found between Magure Magura and Leletiq Laletic on the side of the road 1154 Shefqet Gashi the victim’s brother stated that he learned from a German television broadcast that Ajet Gashi’s body had been found between Magure Magura and Leletiq Laletic 1155 Albanian newspapers also carried reports of Ajet Gashi’s death in Leletiq Laletic 1156 The written statement of Shefqet Gashi appends a newspaper report of 1145 1146 1147 1148 1149 1150 1151 1152 1153 1154 1155 1156 L64 T 4475 L64 T 4490 L64 T 4458 L64 T 4768 L64 T 4458 L64 T 4457-4458 L64 T 4768 Exhibit P183 Indictment para 29 Exhibit P183 Exhibit P183 Exhibit P183 120 Case No type Case # type date 15 June 1998 stating that Ajet Gashi had been killed with five bullets to the chest 1157 A court decision of 29 May 2002 also appended to Shefqet Gashi’s written statement confirmed that Ajet Gashi had been killed on 12 June 1998 1158 Shefqet Gashi’s relatives who viewed the body told him that Ajet Gashi’s arm had been broken and there were signs of wounds to his stomach 1159 There were also bruises and cuts on his hands 1160 Forensic examination of the body by Dr José Pablo Baraybar confirms that the cause of Ajet Gashi’s death was multiple gunshot wounds to the head and trunk 1161 It also reveals that there were gunshot wounds to his upper limbs 1162 323 L64 testified that Ajet Gashi was executed 1163 On L64’s evidence sometime in the first half of June 1998 Ymer Alushani arrived at Rexhep Vojvoda’s house at Llapushnik Lapusnik to ask L64 for gloves and a mask 1164 A group was gathered at the house at the time L64’s brother was present as were Fadil Kastrati Zenel Tamuli and others 1165 Ymer Alushani told L64 that he would need the gloves and mask because he had to “remove something ”1166 Shortly thereafter the group departed in vehicles 1167 L64 drove in a convoy of cars with Ymer Alushani and others towards the direction of Leletiq Laletic 1168 L64 testified that he saw the other cars parked at the fork in the road towards Leletiq Laletic and Magure Magura 1169 Fadil Kastrati’s car was on the left side of the road towards Leletiq Laletic the other car was on the opposite side of the road leading to Magure Magura 1170 L64 testified that the boot of one of the cars was open 1171 When L64 approached he saw a man he says was Ajet Gashi lying on the road beside the car in a critical condition 1172 Ymer Alushani then told L64 that they had orders to execute the man 1173 L64 stated that he refused to take part in the execution 1174 L64 testified that Ymer Alushani and Tamuli then shot the man dead with approximately 20 bullets 1175 It is L64’s evidence that Fadil Kastrati and L64’s brother then went home while Ymer Alushani and the others went to a wedding 1176 1157 1158 1159 1160 1161 1162 1163 1164 1165 1166 1167 1168 1169 1170 1171 1172 1173 1174 1175 1176 Exhibit P183 Exhibit P183 Exhibit P183 Exhibit P183 Exhibit P111 Exhibit P111 L64 T 4490 L64 T 4490 L64 T 4490-4491 L64 T 4490 L64 T 4490 L64 T 4491-4492 L64 T 4492 L64 T 4492 L64 T 4492 L64 T 4492 L64 T 4492 L64 T 4492-4493 L64 T 4493 L64 T 4493 121 Case No type Case # type date 324 There are newspaper reports documenting Ajet Gashi’s death which state that shots were heard in the relevant area on the night of the 12th or 13th July 1177 and L64’s account as to the timing location and cause of the murder he witnessed is consistent with the other evidence documenting Ajet Gashi’s death 1178 However the Chamber has already expressed its reservations regarding the reliability of substantial parts of L64’s testimony 1179 For this reason the Chamber is left with reservations about the testimony of L64 regarding the circumstances of this murder unsupported as it is by any other testimony The Chamber accepts that Ajet Gashi is dead However the Chamber is not persuaded by L64’s identification of Ajet Gashi at Llapushnik Lapusnik and similarly is not persuaded by L64’s evidence that the man whose murder he witnessed was in fact Ajet Gashi 325 In the Chamber’s finding the Prosecution has not established that Ajet Gashi was kept in detention at Llapushnik Lapusnik It therefore follows that the elements of torture Count 4 and cruel treatment Count 6 at the Llapushnik Lapusnik prison camp relating to Ajet Gashi have not been established On the basis of the forensic evidence it appears that Ajet Gashi was murdered However as it has not been established that the man killed in the presence of L64 was Ajet Gashi there is no other evidence as to the circumstances of his death or the persons responsible For this reason the elements of murder Count 8 have not been established in relation to Ajet Gashi for the purposes of this Indictment ix Fehmi Xhema also known as Fehmi Tafa 326 L06 gave evidence that on 13 or 14 June 1998 he along with Fehmi Xhema aka Fehmi Tafa an ethnic Albanian and others including L10 was stopped at a KLA checkpoint between Carraleve Crnoljevo and Zborc Zborce by two KLA soldiers wearing masks and carrying automatic weapons 1180 L12 also gave evidence that Fehmi Xhema was kidnapped 1181 They were then taken to Idriz Muharremi’s house 1182 Idriz Muharremi’s house was approximately 200 or 300 metres from where they were apprehended by the KLA soldiers 1183 At the house Fehmi Xhema and L06 were put in separate cars 1184 L06 and L10 travelled together 1185 According to L10 the cars were driven first to a house in Klecke Klecka 1186 L10 stated that he was told by Fehmi Xhema that they 1177 1178 1179 1180 1181 1182 1183 1184 1185 1186 Exhibit P183 Exhibit P183 See supra para 28 L06 T 977-979 L12 1791 T 1824-1829 Exhibit P54 L10 T 2913 L06 T 983 There are two different spellings of ‘Idriz Muharremi’ in the transcript L10 T 2913 L06 T 983 L06 T 983 L10 T 2913 L06 T 989 L10 T 2913 L10 T 2915 122 Case No type Case # type date were in Klecke Klecka 1187 L10 stated that after approximately half an hour or an hour they were placed in the same car and then driven to another location 1188 327 As the Chamber has discussed the discrepancies between the accounts of L06 and L10 regarding their apprehension do not concern important elements of the fact and circumstances of each witness’ abduction 1189 These discrepancies also do not affect the Chamber’s finding that Fehmi Xhema was detained at Llapushnik Lapusnik A number of witnesses were able to attest to Fehmi Xhema’s presence at the Llapushnik Lapusnik prison camp 1190 1191 Xhema as being present in the storage room where he was handcuffed 1192 Fehmi Xhema 328 L06 identified Fehmi L10 was handcuffed to 1193 L10 also recognised Fehmi Xhema by photograph L06 testified that seven days into his detention he saw Fehmi Xhema taken out of the storage room by Ramadan Behluli and Ali Gashi and led towards the cowshed It was L06’s impression that Fehmi Xhema was gone for an hour 1194 L06 testified that when he was returned Fehmi Xhema had been seriously beaten 1195 He was brought into the room by his legs and “dumped” on the floor by his attackers 1196 L06 knocked on the door to ask for water for Fehmi Xhema Shala told him to stop knocking on the door or he would beat him “one hundred times” 1197 According to L06 Fehmi Xhema “did not have any injuries on his body” but his condition was such that he died some twenty minutes after being brought into the room 1198 L06 testified that three days passed before Fehmi Xhema’s body was removed from the room 1199 329 L10 provided an account of Fehmi Xhema’s death that differs from the testimony provided by L06 L10 stated that on the day after L06 was beaten four individuals who L10 stated were Shala Murrizi Qerqizi and another man came into the room while the detainees were sleeping and tied Fehmi Xhema’s hands blindfolded him and took him out 1200 The man said to be Qerqizi and the man L10 did not recognise were wearing masks L10 heard Fehmi Xhema scream once Fehmi Xhema was returned to the storage room after approximately twenty minutes by Shala who 1187 1188 1189 1190 1191 1192 1193 1194 1195 1196 1197 1198 1199 1200 L10 T 2915 L10 T 2911-2916 See supra paras 245-248 272-273 L06 T 989-990 L10 T 2921 T 2971 L06 T 993 L10 2921 L10 T 2971 Exhibit P54 L06 T 1010-1012 L06 T 1011-1012 L06 T 1011-1012 L06 T 1012 L06 T 1012 L06 T 1013 L10 T 2939 123 Case No type Case # type date instructed the detainees to remain silent 1201 Fehmi Xhema was swollen all over from the wounds and was unable to stand 1202 He was in a precarious and critical condition L10 testified that he put some water on Fehmi Xhema’s chest because he was about to die 1203 L10 testified that Fehmi Xhema died a short time later 1204 The next day Shala and a number of others came into the room and dragged the body away L10 could see a white “Omega” car and believes Fehmi Xhema’s body was carried away in it although he has no specific information about this 1205 330 The accounts given by L06 and L10 of Fehmi Xhema’s death vary in important respects L06 stated that Fehmi Xhema was taken out directly after having himself been beaten while L10 stated that Fehmi Xhema was taken out the day after L06 was beaten The testimonies also diverge as to the day on which Fehmi Xhema’s body was removed from the cowshed Most fundamentally L06 and L10 gave inconsistent accounts of the identities of Fehmi Xhema’s alleged assailants L06 testified that Fehmi Xhema was removed and beaten by Ali Gashi and Ramadan Behluli L10 stated that Shala Murrizi Qerqizi and another man were the individuals involved Similarly the 1206 testimonies also differ as to the identities of the men who beat L06 331 Having given close attention to the evidence of L06 and L10 and especially to the evident discrepancies and having taken into account their demeanour and the manner in which each of these witnesses gave their evidence the overall tenor of their evidence the circumstances of their captivity in the Llapushnik Lapusnik prison camp and its duration and the length of time since those events occurred the Chamber assesses that both L06 and L10 were honest witnesses but it is clear that some events have become confused in the mind of at least one of them Whether this is due to the circumstances of their respective captivity including their personal suffering or to the intervening years cannot be determined As a consequence the Chamber is not able to be confident of some matters dealt with in their evidence in particular of the identity of the individuals who took Fehmi Xhema out of the storage room The Chamber is satisfied however that Fehmi Xhema was detained by the KLA in the storage room at the Llapushnik Lapusnik prison camp for a period from 13 June 1998 until an unknown date before 25 or 26 July 1998 The Chamber finds that on one day of his detention Fehmi Xhema was taken from the storage room and was returned later having been grievously beaten For reasons discussed in following paragraphs the Chamber further finds that Fehmi Xhema remained in the storage room for a matter of one to three days during which time he appeared to both L06 and L10 to be dead He was then finally removed from the storage 1201 1202 1203 1204 1205 1206 L10 T 2939-2941 L10 T 2942 L10 T 2942 L10 T 2942 L10 T 2942 L06 T 1007-1008 L10 T 2938 124 Case No type Case # type date room and was not returned While he was in the Llapushnik Lapusnik prison camp Fehmi Xhema was not taking any active part in hostilities 332 The Chamber finds that despite the seriousness of the mistreatment suffered by him the Chamber has inadequate evidence to discern whether he was beaten for a specific purpose as required for the crime of torture It remains open on the evidence that Fehmi Xhema was beaten purely for arbitrary motives 333 The Chamber finds that Fehmi Xhema was subjected to cruel treatment while detained at the Llapushnik Lapusnik prison camp He was subjected to a significant level of violence which indisputably caused him extremely serious levels of physical suffering and injury Given the circumstances the Chamber is satisfied that his attackers acted deliberately Aside from the physical outrages he endured Fehmi Xhema was detained for many days in the storage room and was handcuffed to another prisoner L10 which would have added to his discomfort 1207 As the Chamber has discussed the conditions in the storage room were deplorable and were such as to cause serious physical and psychological suffering or to constitute a serious attack on human dignity sufficient to amount to cruel treatment 1208 334 The Prosecution alleges that sometime in June or July 1998 Fehmi Xhema was murdered at the Llapushnik Lapusnik prison camp 1209 The death of Fehmi Xhema is not disputed Forensic DNA analysis of a bone sample from remains recovered from a grave site in Mirene Mirena establishes in the Chamber’s finding the familial relationship with other members of the Xhema family 1210 An autopsy report of 13 October 2003 on these remains determined that the cause of Fehmi Xhema’s death was a gunshot wound to the thorax 1211 Fehmi Xhema’s death certificate similarly notes that the cause of death was a gunshot wound to the thorax 1212 The grave site in Mirene Mirena is not a great distance to the east of Llapushnik Lapusnik At the relevant time it was situated in the same area of KLA control as Llapushnik Lapusnik Mirene Mirena can be reached from Llapushnik Lapusnik by car 335 The Defence assert that the forensic information is incompatible with the testimonies of both L06 and L10 which has been summarised earlier raising fundamental doubts about their credibility as witnesses 1213 The Chamber does not assess the evidence as to the cause of death in this way 1207 1208 1209 1210 1211 1212 1213 L06 T 993 L10 T 2918-2923 See supra para 289 Indictment para 32 Exhibit P256 Exhibit P227 Exhibit P228 Defence Final Brief para 909 125 Case No type Case # type date The witness testimony describing the nature of Fehmi Xhema’s death is not necessarily inconsistent with the forensic evidence The Chamber accepts that both L06 and L10 thought that Fehmi Xhema “died” after being returned to the storage room These however are lay appreciations of Fehmi Xhema’s physical condition they are not pronouncements of medical fact While it is clear that Fehmi Xhema was in a desperately low state when he was returned to the storage room it is not necessarily the case that he was clinically dead What L06 and L10 described as Fehmi Xhema’s “death” may in fact have been a deep coma resulting from the severe beating he had just received 336 The Chamber accepts from the evidence of L06 and L10 that there was no sign of Fehmi Xhema having been shot in the thorax when he was returned to the storage room In the Chamber’s finding he was shot after he was later removed from the storage room The forensic evidence indicates the shooting was the clinical cause of death The Chamber finds that this was so even though Fehmi Xhema appeared to L06 and L10 to have already died before he was removed from the storage room Whether the person or persons who killed Fehmi Xhema also believed him to be dead or whether he was removed from the storage room so that he could be shot is not clear on the evidence When he was removed Fehmi Xhema may have regained consciousness or it may have been discovered upon inspection of his body that his vital organs were still functioning Whether or not some such event occurred in the Chamber’s finding the circumstances demonstrate that having removed the near dead Fehmi Xhema from the storage room he was at some later stage shot by those who had him in their captivity and his remains were then disposed of by burial at Mirene Mirena 337 It will be evident that in these circumstances it cannot be determined whether Fehmi Xhema was actually shot in the Llapushnik Lapusnik prison camp or after he was moved from there While the Indictment alleges he was murdered in the prison camp that particular is not a material element of the charged offence of murder The issue of whether one or more of the Accused have been shown to have killed him or are otherwise criminally responsible for his murder in one of the ways alleged will be dealt with later in the Judgement 1214 That issue aside for the present the Chamber is persuaded in all the circumstances and finds that Fehmi Xhema was a detainee at the Llapushnik Lapusnik prison camp when he was shot and that the person or persons who shot him intended either to kill him or to inflict upon him grievous bodily harm or serious injury with the reasonable knowledge that death was a likely consequence of the shooting 338 Therefore leaving aside for the present the issue of the criminal responsibility of the three Accused the Chamber finds that the elements of the offence of cruel treatment Count 6 have been 1214 See infra para 661 126 Case No type Case # type date established in respect of Fehmi Xhema on the basis both of the mistreatment of Fehmi Xhema and of his conditions of detention The elements of the offence of torture Count 4 however have not been established Further the Chamber is satisfied that the elements of the offence of murder Count 8 have been established with regard to Fehmi Xhema x Milovan Krsti and Miodrag Krsti 339 Ljiljana Mitrovi testified that on 24 June 1998 Slobodan Mitrovi and Milovan Krsti collected Miodrag Krsti from a hospital in Belgrade and departed for Reqan Re ane in Kosovo 1215 They were travelling in a navy blue Volkswagen Golf 1216 They stopped at Krusheve Krusevac 1217 No more was heard from them Having arrived in Kosovo to search for her husband Slobodan Mitrovi Ljiljana Mitrovi was told by Abdyl Kryeziu that Slobodan Mitrovi and the Krsti brothers all ethnic Serbs had been kidnapped in Carraleve Crnoljevo and taken in the direction of Malisheve Malisevo 1218 Slobodanka Krsti stated that her late husband’s brother told her he saw Miodrag Krsti ’s car in Malisheve Malisevo one month after the kidnapping driven by a Kosovo Albanian from Malisheve Malisevo called Liman 1219 340 Numerous individuals identified both Milovan Krsti 1220 and Miodrag Krsti 1221 as prisoners in the storage room at the Llapushnik Lapusnik prison camp Ivan Bakra testified that Milovan Krsti recounted to him how he was brought there 1222 Ivan Bakra stated that Milovan Krsti told him that he was brought to a school in his own car which Ivan Bakra said was a navy blue Volkswagen Golf 1223 Vojko Bakra gave evidence that he heard the same account from the “Krsti brothers ”1224 Personal documents belonging to Milovan Krsti were apparently found at Llapushnik Lapusnik 1225 On the basis of this evidence the Chamber is satisfied that Milovan Krsti and Miodrag Krsti were detained at the Llapushnik Lapusnik prison camp by the KLA for an undetermined period of time beginning on 24 June 1998 The Chamber concludes that they were taking no active part in hostilities during that time 341 The Chamber is satisfied from the evidence as to the conditions in which these and the other prisoners were kept that the conditions of detention in the storage room were such as to constitute 1215 1216 1217 1218 1219 1220 1221 1222 1223 1224 1225 Ljiljana Mitrovi T 1596-1599 Exhibit P187 Exhibit P187 Ljiljana Mitrovi T 1599 Ljiljana Mitrovi T 1601-1602 Exhibit P187 Ivan Bakra T 1447-1449 Vojko Bakra T 1314-1317 L07 T 824 Exhibit P54 L07 T 821-824 Vojko Bakra T 1314-1317 Exhibit P54 Ivan Bakra T 1448-1449 Ivan Bakra T 1448 Vojko Bakra T 1313 Exhibits P244 245 tab 17 127 Case No type Case # type date cruel treatment Count 6 There is however no evidence of direct and specific further mistreatment committed against Milovan Krsti or Miodrag Krsti 342 The Prosecution alleges that Milovan and Miodrag Krsti were murdered at the Llapushnik Lapusnik prison camp between 24 June 1998 and 26 July 1998 1226 Since the bodies of Milovan and Miodrag Krsti have not been recovered the Prosecution invites the Chamber to apply the factors listed in Prosecutor v Krnojelac to determine that the elements of murder are satisfied 1227 A number of years have elapsed since Milovan and Miodrag Krsti disappeared and they have not contacted their family or others during that time The Chamber has evidence of the disappearances of others detained at Llapushnik Lapusnik No evidence has been advanced indicating the mistreatment of Milovan Krsti or Miodrag Krsti during their detention in Llapushnik Lapusnik but the Chamber takes into account evidence of the general conduct towards those detained and the acts of violence perpetrated against certain detainees The Chamber is also conscious of evidence that some persons who were detained in the prison camp were later released 343 Nevertheless the evidence led by the Prosecution does not enable the Chamber to be satisfied that the Prosecution has proved the elements of murder in relation to Milovan Krsti and Miodrag Krsti There is no evidence before the Chamber that Milovan Krsti or Miodrag Krsti were killed in the Llapushnik Lapusnik prison camp by KLA guards from the prison camp or that they were killed between the dates alleged by the Prosecution in the Indictment that is between 24 June 1998 and 26 July 1998 In fact Slobodanka Krsti heard that Milovan and Miodrag Krsti were alive in August 1998 1228 This however was by way of rumour Further in November 1998 Slobodanka Krsti ’s brother saw a television programme that showed KLA soldiers in Kukes in Albania Slobodanka Kr tic’s brother told her that he recognised Miodrag Krsti among them 1229 Having regard to all the relevant circumstances the Chamber cannot be satisfied that the Prosecution has established that Milovan Krsti and Miodrag Krsti are in fact dead 344 The elements of the offence of torture Count 4 have not been established in relation to Milovan Krsti or Miodrag Krsti Leaving aside the question of the criminal responsibility of the three Accused the Chamber finds that the elements of the offence of cruel treatment Count 6 have been established in relation to Milovan Krsti and Miodrag Krsti The Chamber finds that the elements of the offence of murder Count 8 have not been satisfied in relation to Milovan Krsti and Miodrag Krsti 1226 1227 1228 1229 Indictment para 30 Prosecution Final Brief para 462 Exhibit P187 Exhibit P187 128 Case No type Case # type date xi Slobodan Mitrovi 345 Ljiljana Mitrovi stated that on 24 June 1998 Slobodan Mitrovi an ethnic Serb and his cousin Milovan Krsti collected Miodrag Krsti from a hospital in Belgrade and departed for Reqan Recane in Kosovo 1230 Ljiljana Mitrovi last saw her husband on 23 June 1998 in Arandjelovac 1231 The Serbian authorities told Ljiljana Mitrovi that a car matching the description of the Volkswagen Golf in which the men were travelling had been viewed crossing the border at Rurdare Merdare 1232 Ljiljana Mitrovi headed for Kosovo on 25 June 1998 where she was told by Abdyl Kryeziu from Suhareke Suva Reka that her husband and the Krsti brothers had been kidnapped in Carraleve Crnoljevo and taken in the direction of Malisheve Malisevo 1233 346 Slobodan Mitrovi was recognised by others as being present at the Llapushnik Lapusnik prison camp L07 identified Slobodan Mitrovi by photograph as one of the prisoners detained in the storage room at Llapushnik Lapusnik 1234 Vojko Bakra stated that he was detained in the storage room with “the Krsti brothers one of whom was called Slobodan ”1235 although he was unable to identify Slobodan Mitrovi by photograph Documentation belonging to Slobodan 1236 Mitrovi was apparently found at Llapushnik Lapusnik 347 Ivan Bakra recognised a photograph of Slobodan Mitrovi by photograph as one of the persons who was detained in the storage room at the Llapushnik Lapusnik prison camp 1237 He did not know by name the individual he recognised by photograph According to Ivan Bakra Slobodan Mitrovi had a bullet hole in his leg and told him that he had been shot while attempting to flee from a bus that had been stopped by the KLA 1238 This does not accord with the account of Slobodan Mitrovi ’s apprehension given by Ljiljana Mitrovi and Slobodanka Krsti who both understood that Slobodan Mitrovi was travelling by car not by bus 1239 The Chamber notes that the circumstances which Ivan Bakra described appear to accord with the Prosecution’s case as to the apprehension and disappearance of Srboljub Miladinovi whom the Prosecution alleges was also detained at the Llapushnik Lapusnik prison camp 1240 There is obvious uncertainty in the evidence 1230 1231 1232 1233 1234 1235 1236 1237 1238 1239 1240 Ljiljana Mitrovi T 1596-1599 Ljiljana Mitrovi T 1596 Ljiljana Mitrovi T 1600-1601 Ljiljana Mitrovi T 1601 L07 T 824 Exhibit P54 Vojko Bakra T 1311-1314 Exhibits P244 245 tab 7 and tab 17 Ivan Bakra T 1449 Exhibit P54 Ivan Bakra T 1447-1449 Exhibit P54 Ljiljana Mitrovi T 1596-1599 Exhibit P187 Prosecution Final Brief para 220 L96 T 2342 129 Case No type Case # type date 348 Despite this the Chamber is satisfied on the basis of the evidence that Slobodan Mitrovi was identified as a detainee in the storage room at the Llapushnik Lapusnik prison camp The chamber is further satisfied that Slobodan Mitrovi was detained in the storage room by the KLA for an undetermined period of time beginning on 24 June 1998 The Chamber finds that Slobodan Mitrovi was not taking any active part in hostilities during that time 349 As the Chamber has discussed the conditions in the storage room in the relevant period were such as to constitute the offence of cruel treatment That aside there is no evidence that Slobodan Mitrovi was subjected to direct mistreatment or torture at Llapushnik Lapusnik 350 The Prosecution alleges that Slobodan Mitrovi was murdered at the Llapushnik Lapusnik prison camp sometime between 24 June 1998 and 26 June 1998 1241 The Prosecution asks the Chamber to apply the factors set out in Prosecutor v Krnojelac to the evidence before it A number of years have elapsed since Slobodan Mitrovi disappeared and he has not contacted his family or others during that time Further the Chamber has evidence of the disappearances of others detained at Llapushnik Lapusnik Slobodan Mitrovi ’s wife heard from a man who claimed to have seen Slobodan Mitrovi but this was apparently a hoax 1242 Ljiljana Mitrovi testified before the Chamber that she has not seen her husband since his disappearance and was confident that he has been killed 1243 The Chamber has no doubt that Ljiljana Mitrovi testified truthfully However her evidence does not provide sufficient certainty as to the circumstances of her husband’s possible death so as to establish the elements of the offence of murder as charged 351 The Chamber concludes that the elements of the offence of torture Count 4 have not been established in relation to Slobodan Mitrovi Leaving aside the criminal responsibility of the three Accused the Chamber finds that the elements of the offence of cruel treatment Count 6 have been satisfied in relation to Slobodan Mitrovi The Chamber concludes that the elements of the offence of murder Count 8 have not been established in relation to Slobodan Mitrovi xii Miroslav uljini 352 On 21 May 1998 Miroslav uljini an ethnic Serb was returning from Doberdoll Dobri Do to Viteje Vidanje when he disappeared 1244 Miroslav uljini ’s brother Jeremija uljini received information from the MUP that on 21 May 1998 Miroslav uljini had been crossing the MUP 1241 1242 1243 1244 Indictment para 30 Ljiljana Mitrovi T 1611 Ljiljana Mitrovi T 1612-1613 Exhibit P194 130 Case No type Case # type date Komoran Komorane checkpoint towards Llapushnik Lapusnik His car was allegedly seen by three journalists in Llapushnik Lapusnik that same day 1245 353 A note shown to Jeremija uljini by investigators and appended to his written statement states “I am uljini Miroslav born on 08 06 1996 sic Occupation worker Captured by U K in Lapo nik sic 21 05 1998 ”1246 Jeremija uljini stated that he recognised Miroslav uljini ’s handwriting 1247 354 The Prosecution has called only one viva voce witness who was able to testify as to Miroslav uljini presence in Llapushnik Lapusnik 1248 When shown a photograph of Miroslav uljini Ivan Bakra stated that he recognised him as a man who was “always smiling” and who had been travelling in the dark blue Volkswagen Golf with Milovan Krsti 1249 However according to the written statement of Jeremija uljini Miroslav uljini was not with Milovan Krsti when he was apprehended according to Jeremija uljini Miroslav uljini travelled alone to Doberdoll Dobri Do to finish some work 1250 Further Jeremija uljini stated that Miroslav uljini was travelling in a Toyota Corolla not a Volkswagen Golf 1251 Later in his testimony Ivan Bakra was shown a photograph of Miroslav uljini and asked if he recognised him as one of the men Ivan Bakra spoke to when inquiring about the whereabouts and welfare of Stamen Genov 1252 Ivan Bakra agreed that Miroslav uljini was one of the men he had spoken to 1253 355 The Chamber is satisfied that Ivan Bakra testified truthfully His recollection of what he was told of the circumstances of Miroslav uljini ’s apprehension however does not accord with the written statement of Jeremija uljini regarding Miroslav uljini ’s apprehension The Chamber has no adequate basis on which to determine how Miroslav uljini was apprehended One possibility therefore is that Ivan Bakra misidentified Miroslav uljini No other viva voce witnesses called by the Prosecution have testified to the presence of Miroslav uljini at the Llapushnik Lapusnik prison camp Further the provenance of Miroslav uljini ’s purported written statement identified as such by Jeremija uljini is unknown The Chamber is left therefore with doubt as to whether Miroslav uljini was detained at the Llapushnik Lapusnik prison camp 1245 1246 1247 1248 1249 1250 1251 1252 1253 Exhibit P194 Exhibit P194 Exhibit P194 Ivan Bakra T 1469 Ivan Bakra T 1449 Exhibit P194 Exhibit P194 Ivan Bakra T 1469 Ivan Bakra T 1469 131 Case No type Case # type date 356 The Chamber therefore concludes that the elements of the offences of torture Count 4 cruel treatment Count 6 and murder Count 8 have not been established in relation to Miroslav uljini xiii 357 @ivorad Krsti According to the written statements of Sne ana Simonovi and Stojan Stojanovi @ivorad Krsti an ethnic Serb was taken off a bus on 25 June 1998 when returning from Prizren Prizren to Prishtina Pristina after having attended a memorial service for his brother 1254 Stojan Stojanovi heard from @ivorad Krsti ’s nephew that @ivorad Krsti was taken off the bus in Carraleve Crnoljevo 1255 According to Stojan Stojanovi the bus was stopped by soldiers who introduced themselves as members of the KLA 1256 @ivorad Krsti ’s bag and identification documents were found on the bus 1257 @ivorad Krsti was kidnapped with two other unidentified Serbs 1258 358 @ivorad Krsti ’s brother in law stated that he met with two men who had been released through the International Committee of the Red Cross 1259 Both men when shown a photograph of @ivorad Krsti recognised him as having been held in a detention camp with them 1260 The identities of the two men are not made clear in the written statement but their description and circumstances match those of the Bakra s Sne ana Simonovi @ivorad Krsti ’s daughter in a written statement noted that in October 1998 she was informed by an individual that prisoners at a camp somewhere near Suhareke Suva Reka told him that there was a man in the camp with the name of Krsti from Prishtina Pristina who had three daughters and was in poor health 1261 @ivorad Krsti had three daughters 1262 Vojko Bakra stated that there was an elderly sick gentleman detained in the storage room at the Llapushnik Lapusnik prison camp 1263 He testified that the elderly gentleman had diabetes1264 and had undergone eye surgery shortly before being apprehended 1265 Vojko Bakra identified @ivorad Krsti by photograph as a detainee in the storage room 1266 Vojko Bakra stated that this elderly man was the only detainee who had grey hair 1267 1254 1255 1256 1257 1258 1259 1260 1261 1262 1263 1264 1265 1266 1267 Exhibit P192 Exhibit P193 Exhibit P193 Exhibit P193 Exhibit P193 Exhibit P192 Exhibit P192 Exhibit P193 Exhibit P193 Exhibit P192 Exhibit P193 Vojko Bakra T 1311-1314 Vojko Bakra T 1312-1313 Vojko Bakra T 1312 Vojko Bakra T 1314-1317 Exhibit P54 Vojko Bakra T 1314-1317 132 Case No type Case # type date The written statement of Sne ana Simonovi confirmed that @ivorad Krsti had undergone eye surgery approximately one month prior to his apprehension 1268 In her written statement Sne ana Simonovi further stated that @ivorad Krsti was taking medication for diabetes at the time of his apprehension 1269 359 The Chamber accepts that @ivorad Krsti was detained by the KLA in the storage room at Llapushnik Lapusnik for an unspecified period of time beginning on 25 June 1998 The Chamber accepts that he was taking no active part in hostilities at the time The Chamber finds that @ivorad Krsti was subjected to cruel treatment due to the general conditions in the storage room The Chamber has accepted that those conditions were such that detention in the storage room constituted the offence of cruel treatment The Chamber takes into account specifically @ivorad Krsti ’s age and medical condition at the time of his detention He was in poor health suffering from diabetes and recovering from eye surgery at the time he was apprehended There is no evidence that @ivorad Krsti was subjected to torture at the Llapushnik Lapusnik prison camp 360 The Prosecution alleges that @ivorad Krsti was murdered between 24 June 1998 and 26 July 1998 at the Llapushnik Lapusnik prison camp 1270 Again the evidence relied upon by the Prosecution is circumstantial the Prosecution invites the Chamber to have regard to the factors in Prosecutor v Krnojelac 361 There is no evidence of @ivorad Krsti ’s direct mistreatment at the Llapushnik Lapusnik prison camp @ivorad Krsti has not contacted his friends or family since his disappearance Sne ana Simonovi stated that she was informed that @ivorad Krsti was alive in October 1998 In his written statement Stojan Stojanovi stated that Bo ko Buha told him sometime in 1999 that @ivorad Krsti had died 1271 Bo ko Buha could not tell Stojan Stojanovi exactly when @ivorad Krsti had died or the circumstances of his death 1272 However Stojan Stojanovi was told by Bo ko Buha that @ivorad Krsti had died “some time ago ”1273 Stojan Stojanovi also heard that @ivorad Krsti ’s nephews who had been trying to negotiate @ivorad Krsti ’s release were also told that he had died 1274 While these hearsay accounts cannot establish that @ivorad Krsti is dead none of them provides any basis for believing he may still be alive However upon the evidence the Chamber finds that it it is unable to conclude with sufficient certainty that @ivorad Krsti is dead 1268 1269 1270 1271 1272 1273 1274 Exhibit P192 Exhibit P192 Indictment para 30 Exhibit P193 Exhibit P193 Exhibit P193 Exhibit P193 133 Case No type Case # type date 362 If it be accepted for the present that @ivorad Krsti died in the prison camp two possible inferences would support the offence of murder namely that he was deliberately killed by an individual or individuals or that he died because medical care was deliberately withheld There is insufficient evidence before the Chamber to support the first inference On the evidence before the Chamber the element of intent has not been established that would support the second inference In the circumstances the offence of murder has not been established with respect to @ivorad Krsti 363 The Chamber therefore concludes that the elements of the offence of torture Count 4 have not been established in relation to @ivorad Krsti Leaving aside the criminal responsibility of the three Accused the Chamber concludes that the elements of the offence of cruel treatment Count 6 have been established in relation to @ivorad Krsti The Chamber finds that the Prosecution has not established the elements of the offence of murder Count 8 in relation to @ivorad Krsti xiv Stamen Genov 364 It is the evidence of Vojko and Ivan Bakra that Stamen Genov an ethnic Serb and a member of the medical corps of the VJ was taken by members of the KLA from a bus travelling from Gjakove Djakovica to Belgrade on 29 June 1998 along with Vojko Bakra Ivan Bakra and or e uk 1275 Stamen Genov was wearing civilian clothes but was carrying a firearm in his bag 1276 After being ordered off the bus Stamen Genov and or e uk were driven away in a blue vehicle 1277 The vehicle soon returned to collect Vojko and Ivan Bakra They were then driven to a village school 1278 When Vojko and Ivan Bakra arrived Stamen Genov was at the back of the room 1279 After approximately one hour the KLA soldiers began to beat Stamen Genov 1280 This mistreatment intensified after Stamen Genov’s military identification was discovered he was beaten until nightfall and at one point lost consciousness 1281 He was then tied and placed in a van along with or e uk and the Bakra s 1282 Vojko and Ivan Bakra testified that they travelled in the van along with Stamen Genov and or e uk for approximately one hour before arriving at a compound they have identified as the Llapushnik Lapusnik prison camp 1283 Vojko and Ivan 1275 1276 1277 1278 1279 1280 1281 1282 1283 Vojko Bakra T 1291-1294 Ivan Bakra T 1395-1401 Vojko Bakra T 1296 Vojko Bakra T 1294 Vojko Bakra T 1298 Ivan Bakra T 1405-1406 Ivan Bakra T 1407 Vojko Bakra T 1299 Ivan Bakra T 1407-1408 Vojko Bakra T 1304-1305 1299-1302 Ivan Bakra T 1410-1412 Vojko Bakra T 1305 Exhibits P5 and P6 134 Case No type Case # type date Bakra Stamen Genov and or e uk were then taken to a room on the ground floor in the main house of the compound 1284 365 The severe mistreatment of Stamen Genov resumed immediately upon his arrival at the Llapushnik Lapusnik prison camp 1285 Ivan and Vojko Bakra Stamen Genov and or e uk were in the room in the main house for approximately one and a half hours 1286 During this time Stamen Genov was beaten with rifle butts and kicked The KLA soldiers beating Stamen Genov referred to him as the “Serbian police” and stated that the mistreatment of Stamen Genov was what Kosovo Albanians were forced to endure under the Serbs 1287 Stamen Genov was asked while being beaten about the number of people he had killed as a member of the VJ 1288 The beating was halted momentarily while a knife was brandished towards Stamen Genov’s genitals 1289 The beating resumed until Stamen Genov was incapacitated and had to be carried 1290 Stamen Genov was then placed in the storage room of the Llapushnik Lapusnik prison camp along with the Bakra s 1291 Ivan Bakra described how Stamen Genov was in dire physical condition as a result of the beatings administered He was not able to move around properly and may have been suffering from broken limbs 1292 Vojko Bakra stated that Stamen Genov was beaten every day hooded individuals would take him out of the storage room and return him after the beatings Many times after these beatings Stamen Genov was semi-conscious on one occasion he was unconscious 1293 One night he was in such a desperate physical and psychological state that he asked Ivan Bakra and Vojko Bakra to strangle him 1294 It seems that he was singled out for especially violent treatment on a regular basis 1295 366 Stamen Genov was a member of the medical corps of the VJ The Chamber accepts the evidence of Ivan and Vojko Bakra that Stamen Genov was viciously beaten on frequent occasions although the identity of the perpetrators cannot be established In the Chamber’s finding Stamen Genov’s captors inflicted physical and psychological abuse upon him with the intent to punish interrogate and intimidate him The Chamber concludes therefore that acts of torture were inflicted upon Stamen Genov The mistreatment of Stamen Genov intensified upon his captors’ 1284 1285 1286 1287 1288 1289 1290 1291 1292 1293 1294 1295 Vojko Bakra T 1305 -1306 Exhibit P5-A1 Ivan Bakra T 1410 -1413 Exhibit P6-A8 Ivan Bakra T 1428 Ivan Bakra T 1428 Ivan Bakra T 1428 Vojko Bakra T 1307-1308 Vojko Bakra T 1309 Vojko Bakra T 1311 Ivan Bakra T 1441 T 1442 Vojko Bakra T 1311 Ivan Bakra T 1450 Vojko Bakra T 1332-1333 Vojko Bakra T 1333 Ivan Bakra T 1458 Ivan Bakra T 1457 135 Case No type Case # type date discovery of his military identification 1296 In the Chamber’s finding he was punished and interrogated because of this military affiliation The evidence also discloses that a statement signed by Stamen Genov was found at Llapushnik Lapusnik after the KLA evacuated detailing various structures and personnel of the VJ within Kosovo 1297 The circumstances indicate in the Chamber’s finding that this information was obtained through threats and applications of violent treatment 367 The Chamber has found that Stamen Genov was detained at the Llapushnik Lapusnik prison camp by the KLA for an undetermined period beginning on 29 June 1998 until an unknown date before 25 or 26 July 1998 He was thus taking no active part in hostilities at the time The Chamber has already determined that the conditions in the storage room were such that detention there constituted the offence of cruel treatment Stamen Genov was subjected to extreme levels of violence and savage abuse by unknown persons during the time of his detention in the storage room 368 The Prosecution alleges that Stamen Genov was murdered sometime between 24 June 1998 and 26 July 1998 at the Llapushnik Lapusnik prison camp 1298 In its Final Brief the Prosecution suggests that “it appears that Stamen Genov was killed by gunshot although the evidence also certainly supports an inference that he would have died from the brutal and repeated beatings which he received…”1299 No forensic evidence of Stamen Genov’s death exists The Prosecution invites the Chamber to rely on circumstantial evidence to conclude that the elements of the offence of murder have been established The Chamber will have regard to those factors listed in Prosecutor v Krnojelac 369 The Bakra s who shared the room with Stamen Genov for much of the time in which the latter was being beaten were eventually taken from the storage room at the Llapushnik Lapusnik prison camp It is Vojko Bakra ’s evidence that one night he heard shots ringing out and assumed from these that Stamen Genov had been executed 1300 But he also gave evidence of hearing from others that Stamen Genov may have been released 1301 When the Bakra s were eventually released Vojko Bakra asked for the identification documents that were in Stamen Genov’s wallet 1302 1296 1297 1298 1299 1300 1301 1302 Vojko Bakra T 1301 Ivan Bakra T 1407-1408 Exhibit P182 Exhibits P244 245 tab 1a Indictment para 30 Prosecution Final Brief para 459 Vojko Bakra T 1344-1345 Vojko Bakra T 1343 Vojko Bakra T 1348-1349 136 Case No type Case # type date Stamen Genov’s wallet was still there This suggested to him that Stamen Genov had been killed because those who were released had their personal belongings returned 1303 370 Nevertheless the evidence is uncertain regarding Stamen Genov’s alleged murder The testimonies of Ivan and Vojko Bakra involve some tension According to Ivan Bakra when he visited the basement when on his way to the cellar he was told that Stamen Genov had been released 1304 Further Stamen Genov’s cousin Vasil Dimitrov said in a written statement that Ivan Bakra informed him that he once went past the basement to check if Stamen Genov was still alive and that he talked to Stamen Genov himself 1305 This is not confirmed however by the evidence of Ivan Bakra 371 Further according to Vasil Dimitrov’s written statement he was informed from a number of different sources that Stamen Genov is still alive According to Vasil Dimitrov’s written statement on 27 August 2001 Stamen Genov’s mother claimed to have received a telephone call from her son 1306 Vasil Dimitrov purports to dispute whether it was Stamen Genov on the phone but does not provide any basis for his disbelief of Stamen Genov’s mother 1307 Vasil Dimitrov’s statement notes that he was informed by Jovica Kostov that Rehbed ej Red i had seen Stamen Genov alive in a detention camp somewhere near Tetovo in Macedonia in autumn of 2002 1308 Jovica Kostov also provided information to Vasil Dimitrov that Mirjana Mitrovi had seen Stamen Genov alive in the Tetovo camp in 2002 1309 No remains of Stamen Genov have been recovered 372 The nature of the evidence is such that the Chamber cannot make any positive finding as to the reality of the telephone call to Stamen Genov’s mother or as to the veracity of the claim that it was from Stamen Genov Aside from this there is no record of Stamen Genov having alleged or known contact with his friends or family since he was taken off the bus The Chamber places little weight on the other unsubstantiated hearsay reports of his whereabouts He was subjected to particularly brutal treatment while detained at the Llapushnik Lapusnik prison camp Consistent with this the circumstances of his treatment suggest it is unlikely he would have been released The Chamber accepts that Stamen Genov’s assailants had at minimum intent to inflict very serious bodily harm upon him with the reasonable knowledge that their actions were likely to cause his death Nevertheless especially because of the apparent telephone call to Stamen Genov’s mother 1303 1304 1305 1306 1307 1308 1309 Vojko Bakra T 1349 Ivan Bakra T 1468 Exhibit P182 para 13 Exhibit P182 para 17 Exhibit P182 para 17 Exhibit P182 para 18 Exhibit P182 para 18 137 Case No type Case # type date the Chamber is left with a sense of uncertainty about his death No finding can therefore be made as to the fact and circumstances of his death 373 Leaving aside the criminal responsibility of the three Accused the Chamber finds that the elements of the offence of torture Count 4 and the elements of the offence of cruel treatment Count 6 have been established in relation to Stamen Genov The Chamber finds that the elements of the offence of murder Count 8 have not been established by the Prosecution in relation to Stamen Genov xv or e uk 374 or e uk was a Serbian refugee originally from the Krajina region of Croatia 1310 It is the evidence of Vojko and Ivan Bakra that on 29 June 1998 or e uk was travelling on a bus from Gjakove Djakovica to Belgrade 1311 He was taken from the bus along with Stamen Genov Ivan Bakra and Vojko Bakra 1312 After being ordered off the bus or e uk and Stamen Genov were driven off in a blue vehicle 1313 The vehicle returned to collect Vojko and Ivan Bakra and they were taken to the same destination a village school 1314 When the Bakra s arrived they stated that or e uk was banging his head against a wall seemingly involuntarily 1315 Along with Stamen Genov or e uk was tied and put in a van and conveyed to a compound the Bakra s identified as the Llapushnik Lapusnik prison camp Once they arrived at the Llapushnik Lapusnik prison camp the beating of or e uk resumed The identity of the attackers is unknown While this was severe indeed as discussed earlier Stamen Genov was the primary focus of violence 1316 The four detainees were then taken to the storage room 1317 Vojko Bakra did not remember in his testimony before the Chamber any specific instances of beatings of or e uk in the storage room 1318 Documents apparently belonging to or e uk were found at the Llapushnik Lapusnik prison camp after the KLA evacuated 1319 Other detainees recognised or e uk as being held in the storage room at the Llapushnik Lapusnik prison camp 1320 375 There is no evidence that permits the Chamber to conclude that the beatings inflicted upon or e uk amounted to torture It has not been shown that the beating of or e uk were 1310 1311 1312 1313 1314 1315 1316 1317 1318 1319 1320 Exhibit P181 para 5 Exhibit P181 para 3 Vojko Bakra T 1291-1294 Ivan Bakra T 1401 Vojko Bakra T 1294 Vojko Bakra T 1294 Vojko Bakra T 1298 Vojko Bakra T 1299 Ivan Bakra T 1405 Vojko Bakra T 1304-1307 Ivan Bakra T 1441 Vojko Bakra T 1428 T 1374 Exhibits P244 245 tab 17 L06 T 1042 L07 T 823 138 Case No type Case # type date administered to attain a specific purpose Therefore it has not been proved that the crime of torture was perpetrated against or e uk at the Llapushnik Lapusnik prison camp 376 The Chamber finds that or e uk was detained by the KLA at the Llapushnik Lapusnik prison camp for an undetermined period of time beginning on 29 June 1998 until not later than 25 or 26 July 1998 The Chamber therefore finds that he was taking no active part in hostilities at the time The Chamber finds that or e uk was subjected to cruel treatment as a result of the conditions in the storage room at the Llapushnik Lapusnik prison camp where he was detained and the beating that was inflicted upon him The Chamber has determined that the conditions in the storage room were such that detention there alone constituted the offence of cruel treatment 377 The Prosecution alleges that or e uk was murdered sometime between 24 June 1998 and 26 July 1998 at the Llapushnik Lapusnik prison camp 1321 As just discussed the Chamber has accepted that or e uk was detained in the Llapushnik Lapusnik prison camp or e uk was last seen in the camp Of particular significance he has not contacted his family in the seven years since his abduction and disappearance or e uk’s brother has never heard rumours that or e uk was still alive 1322 In distinction to some other detainees there is no other basis in the evidence for the view that he is still alive However no witness called has given evidence of his death and there is no forensic evidence to confirm his death or its cause The Chamber accepts he was not among the remaining prisoners who were marched from the prison camp into the nearby Berishe Berisa Mountains by KLA guards on 25 or 26 July 1998 as Serbian forces advanced on Llapushnik Lapusnik 378 The Chamber has evidence of the beating of or e uk at the Llapushnik Lapusnik prison camp upon his arrival there 1323 and is aware of the incidents of violence inflicted upon certain detainees However no specific evidence regarding the seriousness or circumstances of or e uk’s detention was advanced while it is established that or e uk was subjected to cruel treatment by virtue of his detention in the storage room nothing more is known of further specific incidents of mistreatment while detained there The evidence leaves the Chamber with a sense of uncertainty and it considers that no finding can be made as to whether or e uk is in fact dead The Chamber must conclude therefore that the elements of the offence of murder have not been established in relation to or e uk 379 The Chamber concludes that the elements of the offence of torture Count 4 have not been established in relation to or e uk 1321 1322 Leaving aside the criminal responsibility of the three Indictment para 30 Exhibit P181 para 7 139 Case No type Case # type date Accused the Chamber finds that the elements of the offence of cruel treatment Count 6 have been established in relation to or e uk The Chamber finds that the elements of the offence of murder Count 8 have not been established in relation to or e uk xvi Sini a Blagojevi 380 According to the brother of Sini a Blagojevi Ljubi a Blagojevi Sini a Blagojevi was kidnapped by the KLA in June 1998 In a written statement Ljubi a Blagojevi stated that a few days before his disappearance on 24 June 1998 Sini a Blagojevi ’s apartment in Vershec Vrsevce was looted 1324 Ljubi a Blagojevi believes it was looted by the KLA 1325 On the day of Sini a Blagojevi ’s disappearance there was apparently a KLA checkpoint in Vershec Vrsevce 1326 None of the witnesses was able to identify ini a Blagojevi as a detainee at the Llapushnik Lapusnik prison camp The Prosecution has not been able to establish therefore that ini a Blagojevi was detained in the Llapushnik Lapusnik prison camp 381 The Indictment alleges that Sini a Blagojevi was murdered at the Llapushnik Lapusnik prison camp between 24 June and 26 July 1998 1327 However in its Final Brief the Prosecution has conceded that it has not proved the murder of Sini a Blagojevi 1328 382 The Chamber therefore concludes that the elements of the offence of torture Count 4 cruel treatment Count 6 and murder Count 8 have not been established in relation to Sini a Blagojevi xvii Jefta Petkovi and Zvonko Marinkovi 383 According to the written statement of Zvezden Marinkovi Jefta Petkovi and Zvonko Marinkovi two Serbs from Suhareke Suva Reka were driving from Belgrade to Suhareke Suva Reka on 24 June 1998 1329 They were driving a company truck for the “Balkan Belt” Company 1330 The next day in the afternoon they disappeared somewhere between the towns of Aleksandrovac and Suhareke Suva Reka 1331 Jefta Petkovi ’s son Bogoljub Petkovi said in his written statement admitted in evidence that on 27 or 28 June 1998 he contacted the LDK President from Suhareke Suva Reka who contacted various organisations to determine what had happened to the 1323 1324 1325 1326 1327 1328 1329 1330 1331 Vojko Bakra T 1307 Exhibit P177 para 4 Exhibit P177 para 4 Exhibit P177 para 7 Indictment para 30 Prosecution Final Brief para 464 Exhibit P189 paras 4-6 Exhibit P191 para 3 Exhibit P189 para 4 Exhibit P191 paras 4-5 140 Case No type Case # type date two missing men 1332 Bogoljub Petkovi ’s written statement notes that on the following day the LDK President from Suhareke Suva Reka contacted Bogoljub Petkovi to inform him that Jefta Petkovi and Zvonko Marinkovi had been kidnapped by the KLA in Carraleve Crnoljevo on 24 June 1998 at approximately 1600 hours 1333 384 The Chamber accepts the evidence that Jefta Petkovi was detained by the KLA at the Llapushnik Lapusnik prison camp he was recognised by L04 by photograph as a Serbian gentleman from Suhareke Suva Reka who was detained in the cowshed 1334 L04 could not identify him by name The Chamber finds that he was detained by the KLA at the Llapushnik Lapusnik prison camp for an undetermined period of time beginning approximately on 24 June 1998 until his death on a date sometime before mid July 1998 The Chamber is satisfied that he was taking no active part in hostilities during that time As the Chamber has held the conditions in the cowshed were such that detention there was sufficient to constitute the offence of cruel treatment There is no specific evidence that Jefta Petkovi was mistreated or tortured at Llapushnik Lapusnik 385 L04 was not able to identify a photograph of Zvonko Marinkovi 1335 No other detainee recognised Zvonko Marinkovi Although L04’s recollection of one detainee in some respects matches the physical description of Zvonko Marinkovi this was by no means conclusive and does not establish that Zvonko Marinkovi was detained at the Llapushnik Lapusnik prison camp 386 The Prosecution alleges that Jefta Petkovi and Zvonko Marinkovi were murdered sometime in mid July 1998 at the Llapushnik Lapusnik prison camp 1336 There is forensic evidence of the death of @vonko Marinkovi and forensic evidence of Jefta Petkovi ’s death from what would appear to be an execution Jefta Petkovi ’s body was discovered in a secondary gravesite in a wooded area in Shtime Stimlje municipality near Rance Rance village 1337 which is to the southeast of Llapushnik Lapusnik beyond Carraleve Crnoljevo Forensic evidence showed that he had been killed by a gunshot wound to the head 1338 Shell casings and bullets were found in the general vicinity of the secondary grave 1339 DNA analysis by the International Commission on Missing Persons “ICMP” confirmed his identity 1340 The remains of @vonko Marinkovi were recovered in November 2004 from the same secondary gravesite in Shtime Stimlje municipality near 1332 1333 1334 1335 1336 1337 1338 1339 1340 Exhibit P191 para 8 Exhibit P191 para 9 L04 T 1201 L04 T 1201 Indictment para 31 Exhibit P111 p 68 Exhibit P111 p 71-72 Exhibit P111 p 68 Exhibit P225 141 Case No type Case # type date Rance Rance village 1341 The forensic evidence did not establish the cause of Zvonko Marinkovi ’s death 387 L10 gave evidence that approximately five weeks into his detention a man known to him as Shala came and took him from the storage room L10 was blindfolded and placed in a car along with L04 and another individual whose identity L10 could not confirm 1342 They travelled for an hour L10 L04 and the unknown individual were then asked to dig a grave into which three corpses were placed 1343 The bodies were bruised and covered in blood and L10 did not recognise them 1344 388 L04 stated that he was taken from the cowshed by Shala on approximately 18 July 1998 1345 A sack was placed over his head and he was driven into the mountains along with L10 and another individual When they arrived the sacks were removed and they were ordered to dig a grave with pickaxes 1346 It took them an hour or more to dig the hole 1347 Once they had completed digging they put three corpses in the hole L04 recognised one corpse as Agim Ademi but did not recognise the other two 1348 389 Both L04 and L10 were unsure of the precise location of the burial In his testimony concerning the burial of three bodies which he said was pursuant to Shala’s orders L04 stated that the bodies were buried in a remote location which they reached after driving into the mountains 1349 L10 stated that they drove for approximately one hour but does not know the location or the direction in which they travelled 1350 390 The Prosecution submits that two of the bodies which L04 and L10 were forced to bury were those of Zvonko Marinkovi and Jefta Petkovi 1351 Neither L04 or L10 however were able to identify any of the bodies they buried as those of Jefta Petkovi and Zvonko Marinkovi Although L04 gave evidence that the ages of the corpses matched the approximate ages of Zvonko Marinkovi and Jefta Petkovi 1352 L04 stated that he only recognised Agim Ademi among the three bodies and that he did not know the other two individuals he was forced to bury 1353 In particular L04 did not identify one of the bodies as that of Jefta Petkovi even though L04 had 1341 1342 1343 1344 1345 1346 1347 1348 1349 1350 1351 1352 1353 Exhibit P111 L10 T 2943 L10 T 2944 L10 T 2944-2945 L04 T 1187-1188 L04 T 1188 L04 T 1188 L04 T 1188-1189 L04 T 1188 L10 T 2943 Prosecution Final Brief para 465-468 L04 T 1191 L04 T 1189 142 Case No type Case # type date recognised him by photograph as a detainee at the Llapushnik Lapusnik prison camp L10 was unable to identify any of the three bodies 1354 391 Further the forensic evidence does not assist the Chamber in determining whether two of the bodies L04 and L10 buried were those of Jefta Petkovi and Zvonko Marinkovi The bodies of Zvonko Markinkovi and Jefta Petkovi were discovered in a secondary gravesite along with a third unidentified corpse Forensic evidence indicating that the bodies of Jefta Petkovi and Zvonko Marinkovi were first buried in an unknown location creates considerable uncertainty surrounding the circumstances and timing of their deaths That the corpse of Agim Ademi which L04 stated he was forced to bury with the two other corpses was not identified in the same gravesite where the corpses of Jefta Petkovi and Zvonko Marinkovi were found accentuates the uncertainty surrounding the identities of two of the bodies that L04 and L10 buried Consequently the Chamber is unable to conclude with sufficient certainty that two of the bodies L04 and L10 were forced to bury were those of Jefta Petkovi and Zvonko Marinkovi 392 Nevertheless as Jefta Petkovi was last seen at the Llapushnik Lapusnik prison camp the evidence supports the inference that he was killed at the Llapushnik Lapusnik prison camp He has not contacted his family or others since his disappearance His body has been recovered Forensic examination of his body indicates that he was executed The Chamber concludes that the Prosecution has not established that one of the bodies buried by L04 and L10 was that of Jefta Petkovi However the Chamber is satisfied that the elements of the offence of murder have been established in relation to Jefta Petkovi and that he was murdered while a detainee at the Llapushnik Lapusnik prison camp 393 Zvonko Marinkovi ’s body has been recovered However the cause of his death has not been established He was not identified as being present at the Llapushnik Lapusnik prison camp His remains were found with those of Jefta Petkovi and another corpse The forensic evidence indicates that the three bodies were initially buried in an unknown location and were moved to the secondary site in Shtime Stimlje municipality sometime later when the bodies were heavily decomposed 1355 Evidence that the bodies were initially buried at an unknown location increases the Chamber’s uncertainty regarding the circumstances surrounding Zvonko Marinkovi ’s death On that basis the Chamber concludes that the Prosecution has not established that the elements of murder have been satisfied in relation to Zvonko Marinkovi 1354 1355 L10 T 2944 Exhibit P111 143 Case No type Case # type date 394 The Chamber concludes that the elements of the offence of torture Count 4 have not been established in relation to Jefta Petkovi Leaving aside the criminal responsibility of the three Accused the Chamber concludes that the elements of the offence of cruel treatment Count 6 and the elements of the offence of murder Count 8 have been established in relation to Jefta Petkovi 395 The Chamber finds that there is insufficient evidence to conclude that Zvonko Marinkovi was detained at the Llapushnik Lapusnik prison camp The Chamber therefore concludes that Counts 4 6 and 8 have not been established in relation to Zvonko Marinkovi xviii Agim Ademi 396 It was reported to Dragan Ja ovi that on 27 June 1998 unknown individuals kidnapped Agim Ademi and Vesel Ahmeti and took them to an unknown location 1356 This account is in keeping with that of L96 who testified that he heard from Shefqet Ramadani about a man known as “Agim from Godance” who was held in Llapushnik Lapusnik and who owned transportation buses in Godanc Godance 1357 Shefqet Ramadani said that Agim Ademi was taken away from Llapushnik Lapusnik in a car but he did not know whether Agim was still alive 1358 L101 also heard of the kidnapping of Agim Ademi which he heard had occurred in the Godanc Godance area 1359 According to the Prishtina Pristina news centre the KLA abducted Agim Ademi from Donji Godanc Godance on 26 June 1998 1360 397 L04 also gave evidence of Agim Ademi’s presence and disappearance at the Llapushnik Lapusnik prison camp L04 stated that “Agim” was held with L04 and others in the cowshed 1361 He did not know Agim Ademi before being detained with him in the cowshed L04 gave evidence that on one evening an individual he said was Qerqizi came in tied Agim’s hands with wire and took him outside 1362 L04 does not know when this was 1363 The next time L04 saw Agim was when he was forced to bury him 1364 1365 18 July 1998 He believes this was on approximately L04 recognised Agim Ademi by photograph as the “Agim” he referred to as being present in the cowshed 1366 1356 1357 1358 1359 1360 1361 1362 1363 1364 1365 1366 Dragan Ja ovi T 5224 L96 T 2345-2346 L96 T 2345-2346 Exhibit P224 para 8 Exhibit P212 L04 T 1139 L04 T 1186 L04 T 1186 L04 T 1187 L04 T 1187 L04 T 1199 Exhibit P54 144 Case No type Case # type date 398 The Chamber was impressed by the demeanour of L04 as he gave this evidence and accepts his account to be honest and reliable Even though no other detainee has confirmed the presence of Agim Ademi at the Llapushnik Lapusnik prison camp the Chamber is persuaded by the evidence of L04 and finds that Agim Ademi was indeed detained in the cowshed at the Llapushnik Lapusnik prison camp The Chamber finds that Agim Ademi was detained at the Llapushnik Lapusnik prison camp from sometime in late June 1998 until sometime before 18 July 1998 He was therefore taking no active part in hostilities during that time The Chamber finds that Agim Ademi was detained in the cowshed at the Llapushnik Lapusnik prison camp and has found that conditions in the cowshed were such that detention there constituted the offence of cruel treatment There is no evidence that Agim Ademi was subjected to torture while he was detained in Llapushnik Lapusnik 399 The Prosecution alleges that Agim Ademi was murdered at the Llapushnik Lapusnik prison camp sometime in mid July 1998 1367 L04 stated that he was forced to bury Agim Ademi along with two other bodies Around 18 July 1998 L04 stated that a guard he said was Shala took L04 and two other men from the cowshed in order to bury Agim Ademi 1368 He said Shala and others put sacks on their heads and took them into the mountains 1369 The prisoners took pickaxes from the car and went to a spot approximately one hundred metres from the car 1370 Shala drew a place where a hole was to be dug and told the prisoners to dig 1371 It took around an hour to dig the hole When they finished digging L04 saw three corpses lying on the ground L04 testified that he recognised one of the corpses as Agim Ademi with whom he had previously been detained 1372 400 L04 testified that with the other two prisoners he was then forced to put the corpses into the hole L04 only recognised Agim Ademi not the other two bodies Agim Ademi was wearing red trousers 1373 He was around 25 or 26 years old 1374 L04 saw that the body of Agim Ademi had a gunshot injury on the left side 1375 L10’s account of the same incident corroborates L04’s testimony 1376 but L10 could not identify the corpses 1377 He was not asked to look at Agim Ademi’s photograph 1378 1367 1368 1369 1370 1371 1372 1373 1374 1375 1376 1377 1378 Indictment para 31 L04 T 1187 L04 T 1188 L04 T 1188 L04 T 1188 L04 T 1187-1188 T 1139 L04 T 1189 L04 T 1189 L04 T 1189 L10 T 2943-2946 L10 T 2944 L10 T 2970-2974 145 Case No type Case # type date 401 It is unclear how the corpses came to be at the burial site L04 testified to having seen a corpse on the ground after he had finished digging the hole which he recognised as that of Agim whom he knew from the Llapushnik Lapusnik prison camp 1379 L10 stated that they were ordered to fetch the corpses to place in the hole 1380 but he does not say where the bodies were “fetched” from The evidence does not detail how the corpses were transported to the burial site and when the individuals were executed As Agim Ademi was last seen by L04 at the Llapushnik Lapusnik prison camp the evidence supports the inference that Agim Ademi’s death occurred in connection with his detention at the Llapushnik Lapusnik prison camp 402 The Chamber accepts L04’s evidence on this incident and finds that Agim Ademi died after being shot on the left side The Chamber finds that the person or persons who shot Agim Ademi in this manner must have acted deliberately either with an intention to kill Agim Ademi or to cause him grievous bodily harm or serious injury and acted with the reasonable knowledge that his death was a likely consequence of the shooting 403 The Chamber finds therefore that the elements of the offence of torture Count 4 have not been established in relation to Agim Ademi but leaving aside the question of the criminal responsibility of the three Accused does find that the elements of the offences of cruel treatment Count 6 and murder Count 8 have been established in relation to Agim Ademi xix Vesel Ahmeti 404 According to L97 at approximately 0100 hours on the morning of 27 June 1998 KLA soldiers came to his home in Godanc Godance calling for Vesel Ahmeti a Kosovo Albanian 1381 He was taken from the house and led towards the gate by approximately ten soldiers 1382 Later on L97 learned that Vesel Ahmeti had been taken to the village of Zborc Zborce where he spent the night in Syl Smajli’s house After this he heard different accounts as to Vesel Ahmeti’s whereabouts 1383 Bajram Ademi reported to Dragan Ja ovi that on 27 June 1998 unknown individuals kidnapped Agim Ademi and Vesel Ahmeti 1384 Dragan Ja ovi testified that he heard in early July 1998 that Vesel Ahmeti was first taken to a prison in Klecke Klecka before being taken 1379 1380 1381 1382 1383 1384 L04 T 1188 L10 T 2944 Exhibit P221 Exhibit P221 Exhibit P221 Dragan Ja ovi T 5223-5224 146 Case No type Case # type date to the Llapushnik Lapusnik prison camp 1385 The Prishtina Pristina news centre reported that Vesel Ahmeti was abducted on 26 June 1998 in Donji Godanc Godance 1386 405 L04 testified to having seen “Vesel” from Godanc Godance in the cowshed at the Llapushnik Lapusnik prison camp 1387 He stated that he found out that Vesel was from Godanc Godance through speaking to him 1388 However he was unable to identify Vesel Ahmeti by photograph 1389 He stated that a man who he said was Qerqizi arrived on one occasion at night bound Agim Ademi’s and Vesel’s hands and led them out 1390 L04 did not give any further evidence concerning Vesel’s whereabouts after he was removed from the cowshed 406 The Prosecution alleges that Vesel Ahmeti was murdered at the Llapushnik Lapusnik prison camp sometime in mid July 1998 1391 L96 testified that Shefqet Ramadani told him that Vesel Ahmeti was taken away by car from Llapushnik Lapusnik at the same time as “Agim from Godance ”1392 L96 stated that he was asked by Shefqet Ramadani whether Vesel Ahmeti was “still alive” L96 did not know 1393 L96 recognised Vesel Ahmeti by photograph and stated that he knew Vesel Ahmeti from before the war but not from his time at Llapushnik Lapusnik 1394 407 The Chamber has no reason to disbelieve the account of L04 regarding those with whom he was detained at the Llapushnik Lapusnik prison camp L04 was unable to confirm that the “Vesel” he identified was in fact Vesel Ahmeti In contrast to his identification of Agim Ademi L04 was unable to identify Vesel Ahmeti by photograph 1395 However no other detainee saw Vesel Ahmeti at the Llapushnik Lapusnik prison camp For reasons given elsewhere in this decision the Chamber places little weight on the evidence provided by L96 and Dragan Ja ovi It is also conscious that this evidence is unconfirmed hearsay Without further evidence the Chamber is unable to conclude with sufficient certainty that Vesel Ahmeti was detained at the Llapushnik Lapusnik prison camp 408 There is no evidence of the remains of Vesel Ahmeti having been found and there is no evidence to indicate that he was buried with Agim Ademi As discussed in connection with Agim Ademi L04 did bury two other corpses with that of Agim Ademi However he did not identify either of the other corpses even though he had known “Vesel” from Godanc Godance as a fellow 1385 1386 1387 1388 1389 1390 1391 1392 1393 1394 Dragan Ja ovi T 5231-5232 Exhibit P212 L04 T 1132-1133 T 1135 Exhibit P54 L96 testified to recognising Vesel Ahmeti but was not sure when he last saw him T 2405-2409 L04 T 1136 L04 T 1199 L04 T 1186 Indictment para 31 L96 T 2345 L96 T 2345 L96 T 2405 147 Case No type Case # type date prisoner in the cowshed In the absence of any further reliable evidence concerning Vesel Ahmeti the Chamber finds that the Prosecution has not established that Vesel Ahmeti is dead 409 For these reasons the Chamber therefore concludes that the elements of the offences of torture Count 4 cruel treatment Cruel 6 and murder Count 8 have not been established in relation to Vesel Ahmeti xx Emin Emini 410 Emin Emini was from the village of Carraleve Crnoljevo 1396 There is no evidence before the Chamber as to the circumstances of the alleged abduction of Emin Emini by the KLA or of his subsequent transfer to the Llapushnik Lapusnik prison camp Evidence however has been adduced as to Emin Emini’s detention in the prison camp L06 and L10 both described how upon their arrival at the prison camp on about 13 June 1998 they were brought into the storage room1397 and found a man there who displayed injuries and appeared unable to speak as a result 1398 L10 further recalled that the man in question was chained to the window and that two masked KLA soldiers then asked L10 whether that man was a Serbian spy L10 answered that he did not know 1399 Both L06 and L10 identified Emin Emini by photograph in court as the man they found in the storage room 1400 L96 also testified as to Emin Emini being detained by the KLA in the Llapushnik Lapusnik prison camp It is L96’s evidence that shortly after he was brought to the prison camp sometime around 20 July 1998 L96 was brought into the storage room1401 and Emin Emini from Carraleve Crnoljevo was there among other prisoners 1402 L96 testified that Emin Emini was in a terrible condition and that he told L96 that he had been here for 55 days 1403 L96 further recounted that Emin Emini was hiding a watch from a man referred to as Shala and was constantly afraid to be caught doing so 1404 L96 testified to having known Emin Emini before the war and identified him both by name and photograph in court as a fellow prisoner in the storage room 1405 Of further relevance is the evidence of L04 L04 has been found to have been detained in another location at the Llapushnik Lapusnik prison camp than Emin Emini 1406 Nevertheless L04 1395 1396 1397 1398 1399 1400 1401 1402 1403 1404 1405 1406 L04 T 1199 Exhibit P54 L96 T 2333-2335 See supra paras 245-247 L06 T 990-993 L10 T 2916-2918 L10 T 2916-2918 L06 T 992-993 L10 T 2969-2970 Exhibit P54 L06 named the man in the storage room Emin Muharemi aka Emin Sadrija from Carraleve Crnoljevo T 992-993 L06 was however able to identify this man as being Emin Emini by photograph See supra para 266 L96 T 2333-2335 L96 T 2338 L96 T 2361-2362 L96 T 2405-2406 Exhibit P54 See supra para 251 148 Case No type Case # type date testified that on his last day of detention when the prisoners were evacuated under the attack of Serbian forces which in the finding of the Chamber occurred on 25 or 26 July 1998 1407 he saw Emin Emini in the courtyard of the prison camp 1408 L04 further identified Emin Emini by photograph 1409 This consistent evidence combined with the fact that as discussed later in this Judgement 1410 Emin Emini was among the prisoners who stayed in the Berishe Berisa Mountains under KLA escort on 25 or 26 July 1998 after others were released and that his remains were found among those of other prisoners from the camp in a large grave at the execution site in the Berishe Berisa Mountains leaves the Chamber persuaded and it so finds that Emin Emini was detained by the KLA in the storage room at the Llapushnik Lapusnik prison camp at least from mid June to 25 or 26 July 1998 at which point he was escorted with the other prisoners to the Berishe Berisa Mountains In the finding of the Chamber it has also been established therefore that Emin Emini was not taking any active part to the hostilities during this period of time 411 The Chamber heard evidence that Emin Emini was mistreated in the course of his detention at the Llapushnik Lapusnik prison camp As described above when L06 and L10 were brought into the storage room they found the man they identified as Emin Emini in a physical state which led them to believe that he had been severely beaten his head was swollen one eye was blinded 1411 L06 testified that he later asked Emin Emini what had happened to him On L06’s evidence Emin Emini said he had been beaten by a man called “Luan” 1412 There is no further evidence as to the identity of the assailant s of Emin Emini It is apparent from L10’s evidence that the two masked KLA soldiers who asked L10 whether Emin Emini was a spy were seeking to confirm their suspicions that he was It is unclear from the evidence however whether Emin Emini had actually been beaten on the basis of these suspicions or even by the same men While the evidence leaves the Chamber persuaded that Emin Emini had been physically assaulted and severely so before L06 and L10 were brought into the storage room the Chamber cannot be satisfied that this assault had been carried out for one or more of the specific purposes required for the offence of torture to be established 412 L10 also dealt with what appears to be two further instances of mistreatment inflicted to Emin Emini in the course of his detention at the Llapushnik Lapusnik prison camp First it is L10’s evidence that on one occasion KLA members he said were Shala Qerqizi and Murrizi took Emin Emini out of the storage room On L10’s evidence Emin Emini was returned some forty 1407 1408 1409 1410 1411 1412 See infra para 448 L04 T 1192-1194 L04 T 1199-1206 Exhibit P54 See infra paras 458-461 L06 T 992-993 L10 T 2916-2918 L06 T 992-993 149 Case No type Case # type date minutes later he was holding his stomach and told the other prisoners that he had been beaten 1413 There is no other evidence of this specific event nor of the identity of the three KLA members named by L10 In particular although L06 is said by L10 to have been present at the time L06 does not refer to this incident in his evidence Because of the apparent inconsistency between the testimonies of L10 and L06 concerning this incident the Chamber finds itself unable to be entirely satisfied as to the circumstances in which this specific assault occurred or as to the identities of those named by L10 Secondly L10 testified that Emin Emini once said he had been beaten by a man he referred to as Commander Çeliku 1414 In the absence of any confirmation by other evidence L10’s hearsay account does not persuade the Chamber that this specific mistreatment occurred as described if at all 413 Nevertheless forensic examination of the remains of Emin Emini revealed that he had suffered fractures to the sternum and ribs due to blunt force traumas fractures which were inflicted about three weeks before death 1415 i e while Emin Emini was detained by the KLA at the Llapushnik Lapusnik prison camp 414 On the basis on the foregoing leaving aside for the present the issue of the criminal responsibility of the three Accused the Chamber is satisfied that during the period of his detention by the KLA in the storage room at the Llapushnik Lapusnik prison camp Emin Emini suffered severe beatings which caused multiple fractures and other injuries While as found above the Chamber cannot be satisfied as to the specific circumstances in which some of these beatings occurred or as to the perpetrators in light of the forensic evidence and the general conditions in the prison camp the Chamber is persuaded that Emin Emini endured serious mental and physical suffering and injury and that the perpetrators acted deliberately The Chamber therefore finds that the offence of cruel treatment Count 6 has been established The Chamber is however not satisfied on the evidence that the mistreatment of Emin Emini was carried out for any of the prohibited purposes required for the offence of torture Count 4 to be established The allegations that Emin Emini was murdered by the KLA on or about 26 July 1998 in the Berishe Berisa Mountains are examined later in this decision 1416 1413 1414 L10 T 2935-2937 L10 T 2935-2937 2994-2996 150 Case No type Case # type date xxi Ibush Hamza 415 There has been no direct evidence adduced before the Chamber specifically as to the detention of Ibush Hamza in the Llapushnik Lapusnik prison camp 1417 However for the reasons detailed later in this decision 1418 the Chamber is persuaded that the reference by L04 to a fellow prisoner known to him as Ibushi and who remained with the small group of prisoners under KLA escort in the Berishe Berisa Mountains after L04 was released 1419 discloses and the Chamber finds that the man known to L04 as Ibushi was a fellow prisoner at the Llapushnik Lapusnik prison camp and among the prisoners escorted by KLA guards to the Berishe Berisa Mountains on 25 or 26 July 1998 The subsequent recovery of remains identified to be those of Ibush Hamza in the large grave at the execution site in the Berishe Berisa Mountains1420 leaves the Chamber satisfied and it finds that the man known to L04 as Ibushi was in fact Ibush Hamza and that he was held by the KLA at the Llapushnik Lapusnik prison camp for an undetermined period until 25 or 26 July 1998 at which point he was escorted with the other prisoners to the Berishe Berisa Mountains In the finding of the Chamber it has also been established therefore that Ibush Hamza was not taking any active part to the hostilities during this period 416 There is no evidence as to any mistreatment inflicted upon Ibush Hamza in the course of his detention by the KLA at the Llapushnik Lapusnik prison camp Equally there is no evidence as to his exact place of detention within the prison camp As was noted earlier the conditions of detention varied significantly from one location to another 1421 In the present case the Chamber is therefore unable to conclude that the conditions in which Ibush Hamza was detained were so deplorable that they constituted serious mental or physical suffering or a serious attack on human dignity and amounted to cruel treatment Accordingly the Chamber finds that the offences of cruel treatment Count 6 and torture Count 4 have not been established with respect to Ibush Hamza The allegation that Ibush Hamza was murdered by the KLA on or about 26 July 1998 in the Berishe Berisa Mountains is examined later in this decision 1422 1415 1416 1417 1418 1419 1420 1421 1422 Dr George Maat T 5168-5171 Exhibit P200 See also Exhibit P111 See infra para 458-462 The Chamber notes in this respect that L96 referred to a former prisoner by the name of “Banush” or “Ibush” but L96 acknowledged that he was uncertain about the exact name T 2502-2503 See infra paras 463-466 Exhibit P76 L04 T 1197-1198 See infra paras 463-466 See supra paras 285-289 See infra paras 463-467 151 Case No type Case # type date xxii Hyzri Harjizi 417 Hyzri Harjizi was from the village of Belince Belince 1423 The only evidence relating to the disappearance of Hyzri Harjizi is that of Dragan Ja ovi who testified that he received a report from a personal relation of Hyzri Harjizi who was present when Hyzri Harjizi was stopped by KLA members near the village of Petrove Petrovo and taken to the KLA headquarters in Rance Rance 1424 It is the evidence of Dragan Ja ovi that another personal relation of Hyzri Harjizi reported that a man said to be called Dula who was serving at the KLA headquarters in Rance Rance said Hyzri Hajrizi had been brought to a prison in the village of Llapushnik Lapusnik 1425 Given the nature of this evidence however and the reservations about the reliability of the evidence of Dragan Ja ovi 1426 the Chamber is not prepared to make any positive finding on the basis of this sole evidence as to the exact circumstances of the arrest of Hyzri Harjizi 418 Former detainees testified to being detained with or seeing Hyzri Hajrizi in the Llapushnik Lapusnik prison camp L10 gave evidence that a person he knew as “Hyzri from Belince” whom he identified by photograph which was of Hyzri Harjizi was a fellow detainee in the storage room 1427 This account is consistent with the evidence of L96 that he was detained in the storage room together with “Hyzri Harjizi from Belince” 1428 Finally L04 testified that on the last day of his detention as the prisoners were gathered in the courtyard of the prison camp he saw “Hyzri” whom he identified when shown a photograph of Hyzri Harjizi 1429 This consistent evidence combined with the fact that as discussed later in this decision 1430 Hyzri Harjizi was among the group of prisoners who stayed in the Berishe Berisa Mountains under KLA escort on 25 or 26 July 1998 after others were released and that his remains were found among those of other prisoners from the prison camp in a large grave at the execution site in the Berishe Berisa Mountains leaves the Chamber persuaded and it so finds that Hyzri Harjizi was detained by the KLA in the storage room at the Llapushnik Lapusnik prison camp 419 The Chamber notes that on L10’s evidence there was only one detainee Emin Emini in the storage room when L10 was first brought into the room around mid June 1998 1431 This could indicate that Hyzri Harjizi was arrested sometime after mid June 1998 it could also well be 1423 1424 1425 1426 1427 1428 1429 1430 1431 L04 T 1199-1206 L10 T 2922-2925 2969-2973 L96 T 2334-2335 Dragan Ja ovi T 5264-5268 Dragan Ja ovi T 5269-5271 See supra para 27 L10 T 2922-2925 2969-2973 Exhibit P54 L96 T 2334-2335 L96 however did not identify Hyzri Hajrizi by photograph T 2405-2409 Exhibit P54 L04 T 1192-1194 1199-1200 Exhibit P54 See infra paras 468-471 L10 T 2917-2918 152 Case No type Case # type date however that Hyzri Harjizi had been previously detained in another location at the prison camp before being transferred to the storage room In the absence of further evidence the Chamber is not able to make any finding as to when Hyzri Harjizi was brought to the Llapushnik Lapusnik prison camp The Chamber is satisfied however that Hyzri Harjizi remained detained by the KLA at the prison camp until 25 or 26 July 1998 at which point he was escorted by KLA guards with the other prisoners to the Berishe Berisa Mountains In the finding of the Chamber it has therefore been established that during this period Hyzri Harjizi was not taking any active part to the hostilities 420 L10 testified that masked men beat “Hyzri” the man he had identified as Hyzri Harjizi in the Llapushnik Lapusnik prison camp 1432 This evidence lacked any specificity and there is no further evidence which could assist the Chamber in determining with confidence the circumstances nature and extent of this physical assault upon Hyzri Harjizi or by whom it was inflicted 421 On the basis of the foregoing leaving aside for the present the issue of the criminal responsibility of the three Accused the Chamber is not able to be satisfied that Hyzri Harjizi was subjected to physical mistreatment during his detention by the KLA at the Llapushnik Lapusnik prison camp Nevertheless as described earlier 1433 the Chamber is persuaded that the conditions of detention in the storage room were such that they caused serious mental or physical suffering to the detainees including Hyzri Harjizi or constituted a serious attack upon human dignity The fact that these conditions of detention were maintained over an extensive period of time persuades the Chamber that they were imposed deliberately In the finding of the Chamber the offence of cruel treatment Count 6 has therefore been established with respect to Hyzri Harjizi on the basis of the conditions of his detention in the storage room The offence of torture Count 4 however has not been established The allegation that Hyzri Harjizi was murdered by the KLA on or about 26 July 1998 in the Berishe Berisa Mountains is examined later in this decision 1434 xxiii Shaban Hoti 422 Shaban Hoti was a professor proficient in the Russian language who lived in Prishtina Pristina A personal relation said in a written statement which is in evidence that on 20 July 1998 Shaban Hoti left his house in Prishtina Pristina to meet a group of Russian journalists he was working with and that he did not return 1435 One of these Russian journalists Oleg Safiulin gave evidence that on 20 July 1998 he was travelling into KLA held territory with his crew and interpreter Shaban Hoti when they were stopped at a KLA checkpoint near 1432 1433 1434 1435 L10 T 2936 See supra para 289 See infra paras 468-472 Exhibit P222 153 Case No type Case # type date Llapushnik Lapusnik It is Oleg Safiulin’s evidence that he and his crew including Shaban Hoti were ordered to turn around which they did Subsequently as they were shooting some footage about one km away from the KLA checkpoint a unit of KLA soldiers stopped them again and brought them back to the KLA checkpoint 1436 Oleg Safiulin testified that an unidentified KLA commander then arrived at the checkpoint and that his party was taken to a house on the southern side of the Prishtina Pristina-Peje Pec road 1437 Oleg Safiulin testified that a few hours later an unidentified commander possibly the same commander he had seen at the checkpoint arrived at the house and interrogated him Shaban Hoti was interpreting he had already been beaten had blood on his shirt and looked terrified 1438 Oleg Safiulin was released shortly thereafter and has no knowledge of what happened to Shaban Hoti after that 1439 423 L96 testified that during the first days of his detention at the Llapushnik Lapusnik prison camp while he was held on the first floor of the main house i e sometime around 18 July 1998 1440 unidentified KLA soldiers brought an elderly man into the room On the next day L96 heard from a KLA soldier he said was Shala that this elderly man was Shaban Hoti a Russian professor who was working as an interpreter for Russian journalists 1441 It is L96’s evidence that he subsequently heard from Shaban Hoti himself that he was from Prishtina Pristina and that he was working with Russian journalists 1442 L96 identified Shaban Hoti by photograph 1443 Although it appears on L96’s evidence that Shaban Hoti was later moved to the cowshed along with L96 none of the detainees who gave evidence has identified Shaban Hoti as a fellow prisoner Nevertheless given the supporting evidence that Shaban Hoti’s remains were found in the large grave at the execution site in the Berishe Berisa Mountains together with those of other detainees from the Llapushnik Lapusnik prison camp 1444 and the evidence of Oleg Safiulin the Chamber is able to accept L96’s evidence on this matter and it finds that Shaban Hoti was detained by the KLA in the prison camp at least for part of the time in the room on the first floor in the main house of the prison camp from around 20 July until 25 or 26 July 1998 at which time he was escorted with other prisoners by KLA guards to the Berishe Berisa Mountains In the finding of the Chamber it has also been established therefore that Shaban Hoti was not taking any active part to the hostilities during this period of time 1436 1437 1438 1439 1440 1441 1442 1443 1444 Oleg Safiulin T 1728-1731 Exhibit P87 Oleg Safiulin T 1739-1741 Exhibit P88 Oleg Safiulin T 1741-1746 Oleg Safiulin T 1746-1748 See supra para 265 L96 T 2312-2314 L96 T 2346-2347 L96 T 2405-2409 Exhibit P54 See infra paras 473-476 154 Case No type Case # type date 424 L96 testified to Shaban Hoti being mistreated at the Llapushnik Lapusnik prison camp It is L96’s evidence that when the unidentified KLA soldiers first brought Shaban Hoti into the room on the first floor of the main house Shaban Hoti was tied in chains and had been severely beaten he could not stand on his feet and his shirt was wearing blood stains 1445 This account is in part consistent with that of Oleg Safiulin who was with Shaban Hoti some hours before then L96 further testified that despite the condition of Shaban Hoti at the time the KLA soldiers then dragged him into the adjacent room and continued to beat him for about half an hour 1446 L96 stated that he heard the soldiers ask Shaban Hoti “Do you still translate for the Russian journalists ” On the next evening L96 said six unidentified KLA soldiers entered the room where Shaban Hoti was detained and started to mistreat him again The soldiers were shouting and jumping on him he was lying on the floor his hands and feet tied It is L96’s evidence that the door to the room remained open throughout the incident so that he was in a position to witness the events directly 1447 There is no further direct evidence relating to these two incidents As discussed later in this decision 1448 although an initial autopsy of the body found to be that of Shaban Hoti in the Berishe Berisa Mountains revealed numerous fractures to the skull scapula radius femur and tibia 1449 subsequent more detailed forensic examination found that these fractures were consistent with gunshot wound injuries 1450 injuries which are more likely to have occurred at the time of death It was also noted in the forensic examination of the remains of Shaban Hoti that there was a possibility of an antemortem fracture to a rib however no confirmation of this nor any assessment of the age of that possible fracture is provided 1451 Having regard to all these circumstances including the circumstances in which Shaban Hoti was first taken into KLA custody the reason given for his apprehension and detention his continued detention despite the release of the Russian journalist party the treatment administered to him when first taken into custody and the recovery of his remains despite this absence of corroborating forensic evidence the Chamber is persuaded it can accept L96’s evidence as to the mistreatment inflicted upon Shaban Hoti in the main house at the Llapushnik Lapusnik prison camp The circumstances satisfy the Chamber and it finds that Shaban Hoti was targeted for grave mistreatment as a direct result of his acting as an interpreter for Russian journalists 425 On the basis on the foregoing and leaving aside for the present the issue of the criminal responsibility of the three Accused the Chamber is satisfied that in the course of his detention by 1445 1446 1447 1448 1449 1450 1451 L96 T 2312-2314 2317 L96 T 2312-2314 2317 L96 T 2322-2325 Exhibit P110 see infra para 475 Exhibit P111 see infra para 475 Exhibit P111 Exhibit P111 155 Case No type Case # type date the KLA at the Llapushnik Lapusnik prison camp Shaban Hoti suffered severe beatings causing serious mental or physical suffering although the Chamber cannot be make any finding as to the identity of the assailants The Chamber finds that the beatings were inflicted upon Shaban Hoti as a direct result of his acting as an interpreter for Russian journalists and that the perpetrators acted deliberately and with the purpose of punishing and intimidating Shaban Hoti Accordingly the Chamber is satisfied that the offences of cruel treatment Count 6 and torture Count 4 have been established with respect to Shaban Hoti The allegations that Shaban Hoti was murdered by the KLA on or about 26 July 1998 in the Berishe Berisa Mountains are examined later in this decision 1452 xxiv Hasan Hoxha 426 Two personal relations of Hasan Hoxha gave statements in this trial about what they heard concerning the disappearance of Hasan Hoxha According to their written statements Hasan Hoxha was arrested on 17 July 1998 after he left his home by car with Alush Luma and was initially questioned in a school in Pjetershtice Petrastica 1453 According to an undated OSCE missing person report Hasan Hoxha and Alush Luma were arrested by the KLA around 17 July 1998 as they were driving in the village of Shale Sedlare 1454 427 L96 testified that during his initial detention on the first floor of the main house at the Llapushnik Lapusnik prison camp around 18 July 1998 1455 he saw individuals he stated were Hasan Hoxha and Alush Luma in the room 1456 L96 identified Hasan Hoxha by photograph as a fellow detainee 1457 It is also L96’s evidence that on the last day of his detention as the prisoners were gathered in the courtyard he saw Hasan Hoxha coming out of one of the rooms He thought this was probably the cowshed 1458 There is no other direct evidence of the detention of Hasan Hoxha in the prison camp The Chamber has noted elsewhere the reasons for its reservations about the evidence of L96 1459 However as discussed later in this decision 1460 human remains which the Chamber finds were those of Hasan Hoxha were recovered at the execution site in the Berishe Berisa Mountains albeit slightly away from the other bodies This provides in the Chamber’s assessment clear confirmation in a material respect of the evidence of L96 about the detention of Hasan Hoxha in the prison camp For this reason the Chamber is persuaded it should 1452 1453 1454 1455 1456 1457 1458 1459 1460 See infra paras 473-477 Exhibits P185 and P186 Exhibits P46 P147 See supra para 265 L96 T 2297-2298 2301 L96 T 2405-2409 Exhibit P54 L96 T 2349-2350 See supra para 26 See infra paras 478-482 156 Case No type Case # type date accept the evidence of L96 regarding Hasan Hoxha Accordingly the Chamber finds that Hasan Hoxha was detained by the KLA at the Llapushnik Lapusnik prison camp from around 17 July until 25 or 26 July 1998 at which point he was escorted by KLA guards with the other prisoners to the Berishe Berisa Mountains In the finding of the Chamber it has also been established therefore that Hasan Hoxha was not taking any active part to the hostilities during this period of time 428 It is the evidence of L64 that he heard that Hasan Hoxha had been severely beaten 1461 There is no other evidence which could enable the Chamber to determine the circumstances of this alleged mistreatment or to confirm that it occurred at all 429 On the basis on the foregoing in the absence of other evidence on this issue the Chamber is not satisfied that Hasan Hoxha was subjected to mistreatment in the course of his detention by the KLA at the Llapushnik Lapusnik prison camp As it cannot be determined on the limited evidence of L96 whether Hasan Hoxha was detained elsewhere than in the main house and given the evidence as to the conditions in the main house 1462 the Chamber cannot be satisfied that the conditions of his detention were such that they caused serious physical or mental suffering or constituted a serious attack on human dignity Accordingly the Chamber finds that the offences of cruel treatment Count 6 and torture Count 4 have not been established with respect to Hasan Hoxha The allegation that Hasan Hoxha was murdered by the KLA on or about 26 July 1998 in the Berishe Berisa Mountains is examined later in this decision 1463 xxv Safet Hysenaj 430 Safet Hysenaj was from the village of Petrove Petrovo 1464 There is no evidence before the Chamber as to the circumstances of Safet Hysenaj’s arrest and transfer to the Llapushnik Lapusnik prison camp However there is evidence from former detainees that Safet Hysenaj was held in the prison camp L96 testified that on the last day of detention on 25 or 26 July 1998 when the prisoners were gathered in the courtyard he saw Safet Hysenaj coming out of the garage of the compound It was the first time that L96 had seen him in the prison camp 1465 This evidence is consistent with that of L04 who testified that on the last day of detention when L04 was taken out of the cowshed he saw “Safet from Petrove” in the yard 1466 This evidence combined with the fact 1461 1462 1463 1464 1465 1466 L64 T 4515-4518 See supra paras 287 289 See infra paras 478-483 L04 T 1199-1206 L96 T 2272 Dragan Ja ovi T 5271-5273 L96 T 2348 2357-2358 Exhibits P100 and P101 L04 T 1192-1194 1199-1206 The Chamber notes that the man L04 identified by photograph as being “Safet from Petrove” is not Safet Hysenaj but rather or e uk In the assessment of the Chamber however the quality 157 Case No type Case # type date that as discussed later in this decision 1467 Safet Hysenaj was among the prisoners who remained under KLA escort in the Berishe Berisa Mountains on 25 or 26 July 1998 after others were released and that his remains were found among those of other prisoners from the prison camp in a large grave at the execution site in the Berishe Berisa Mountains leaves the Chamber persuaded and it so finds that Safet Hysenaj was detained in the Llapushnik Lapusnik prison camp most likely in the garage for an undetermined period of time until 25 or 26 July 1998 at which point he was escorted with the other prisoners by KLA guards to the Berishe Berisa Mountains In the finding of the Chamber it has also been established therefore that Safet Hasenaj was not taking any active part to the hostilities at the time relevant to these proceedings 431 There is no eyewitness evidence before the Chamber as to mistreatment inflicted upon Safet Hysenaj during his detention or as to the conditions of his detention This is consistent with the implication from L96’s evidence that Safet Hysenaj was detained in the garage apparently isolated from other detainees The forensic examination of the remains of Safet Hysenaj found in the large grave in the Berishe Berisa Mountains revealed that he suffered multiple fractures in the mandible and maxilla consistent with blunt force trauma and which probably occurred prior to death 1468 The forensic evidence does not specify however how long before death these trauma are likely to have occurred and the Chamber cannot be persuaded in the absence of further evidence that these injuries were sustained by Safet Hysenaj while he was detained in the prison camp 432 On the basis on the foregoing the Chamber is not satisfied on the available evidence that Safet Hysenaj was subjected to serious mental or physical suffering in the course of his detention by the KLA at the Llapushnik Lapusnik prison camp or that the conditions of his detention were such that they constituted a serious attack on human dignity Accordingly the Chamber finds that the offences of cruel treatment Count 6 and torture Count 4 have not been established with respect to Safet Hysenaj The allegations that Safet Hysenaj was murdered by the KLA on or about 26 July 1998 in the Berishe Berisa Mountains are examined later in this decision 1469 xxvi Bashkim Rashiti 433 Bashkim Rashiti was from the village of Godanc Godance 1470 A personal relation of Bashkim Rashiti in a written statement admitted into evidence stated that on 11 July 1998 Bashkim Rashiti went to report to the KLA headquarters in Kroimire Krajmirovce and did not 1467 1468 1469 1470 of the two photographs and their resemblances are such that it is not persuaded that this misidentification is conclusive See infra paras 484-487 Exhibit P111 See infra paras 484-488 L10 T 2969-2973 158 Case No type Case # type date return 1471 Former detainees at the Llapushnik Lapusnik prison camp L06 L10 and L96 all identified Bashkim Rashiti or “Bashkim from Godance” by photograph as a fellow prisoner in the storage room at the camp 1472 This consistent evidence combined with the fact that as discussed later in this decision 1473 Bashkim Rashiti was among the prisoners from the prison camp who were held under KLA guard in the Berishe Berisa Mountains on 25 or 26 July 1998 after others were released and that his remains were found among those of other prisoners from the camp found in a large grave at the execution site in the Berishe Berisa Mountains leaves the Chamber persuaded and it so finds that Bashkim Rashiti had been detained in the storage room at the Llapushnik Lapusnik prison camp from about 11 July until 25 or 26 July 1998 at which point he was escorted under KLA guard with the other prisoners to the Berishe Berisa Mountains 434 There is no evidence as to specific mistreatment inflicted upon Bashkim Rashiti during his detention by the KLA Nevertheless as discussed above 1474 the conditions of detention in the storage room were such that the Chamber is satisfied that they caused serious mental or physical suffering to the detainees among whom was Bashkim Rashiti and that they constituted a serious attack upon human dignity The fact that these conditions of detention were maintained over an extensive period of time persuades the Chamber that they were imposed deliberately In the finding of the Chamber and leaving aside the issue of the criminal responsibility of the three Accused the offence of cruel treatment Count 6 is therefore established with respect to Bashkim Rashiti on the basis of the conditions of his detention The offence of torture Count 4 however has not been established The allegations that Bashkim Rashiti was murdered by the KLA on or about 26 July 1998 in the Berishe Berisa Mountains are examined later in this decision 1475 xxvii Hetem Rexhaj 435 Hetem Rexhaj lived in the village of Petrove Petrovo 1476 L96 testified that he heard of the circumstances of Hetem Rexhaj’s abduction from a personal relation of Hetem Rexhaj who recounted to L96 that masked KLA soldiers came to Hetem Rexhaj’s house one night in early July 1998 and told Hetem Rexhaj that Commander Luan had requested that he report to the KLA headquarters in Kroimire Krajmirovce on the next day 1477 Hetem Rexhaj is said to have met Commander Luan on the next day at the KLA headquarters in Kroimire Krajmirovce with his personal relation As the personal relation of Hetem Rexhaj left the headquarters he witnessed five 1471 1472 1473 1474 1475 1476 1477 Exhibit P223 L06 T 1039-1045 L10 T 2969-2973 2965-2966 L96 T 2407-2408 2334-2335 Exhibit P54 Exhibit P108 See infra paras 489-492 See supra para 289 See infra paras 489-493 L04 T 1136-1138 1203 L96 T 2238 2253 Exhibit P54 L96 T 2259-2262 159 Case No type Case # type date unidentified KLA soldiers putting a sack over Hetem Rexhaj’s head 1478 This account was contradicted by Ramiz Qeriqi aka Luan who testified that he told Hetem Rexhaj to proceed to Shale Sedlare after Hetem Rexhaj came to Kroimire Krajmirovce to enlist having been summoned to join the KLA 1479 Ramiz Qeriqi denied having been present while a sack was put over Hetem Rexhaj’s head 1480 On the basis of this evidence a number of issues remain unresolved in particular the exact circumstances of Hetem Rexhaj’s disappearance and the potential involvement of Ramiz Qeriqi aka Luan Nevertheless whatever may be the correct resolution of these issues on the balance of the evidence in the Chamber’s assessment it is established that Hetem Rexhaj disappeared at some stage after having been summoned in early July 1998 to the KLA headquarters in Kroimire Krajmirovce 436 It is L04’s evidence that he was taken to the cowshed at the end of June 1998 1481 L04 testified that four days thereafter “Hete from Petrove” whom L04 identified by photograph as Hetem Rexhaj was brought into the room 1482 This evidence is consistent with the finding of the Chamber as to Hetem Rexhaj’s disappearance and reveals that he was brought to the Llapushnik Lapusnik prison camp shortly after he disappeared On L04’s evidence Hetem Rexhaj was still in the prison camp on the last day of detention which the Chamber found was on 25 or 26 July 1998 On that day the remaining prisoners were gathered in the courtyard before the march under KLA escort to the Berishe Berisa Mountains 1483 L96 also testified to seeing Hetem Rexhaj at the prison camp although they were detained in different locations 1484 It is L96’s evidence that at the start of his detention he heard from a KLA soldier he said was Shala that Hetem Rexhaj was detained at the prison camp 1485 But it was only on 25 or 26 July 1998 the last day of detention that L96 saw Hetem Rexhaj for the first time he was in the courtyard among the other prisoners 1486 According to L96 Hetem Rexhaj “had changed completely” and “seemed like … half the person he used to be very weak thin unshaved… h e was in a horrible state ”1487 This evidence combined with that of L04 L12 and L96 that Hetem Rexhaj was among the prisoners who remained under KLA guard in the Berishe Berisa Mountains after others were released 1488 leaves the Chamber persuaded and it finds that Hetem Rexhaj was indeed detained by the KLA at the Llapushnik Lapusnik prison camp for a period of time from early July 1998 until 25 or 1478 1479 1480 1481 1482 1483 1484 1485 1486 1487 L96 T 2262-2264 Ramiz Qeriqi T 3618-3619 3706 Ramiz Qeriqi T 3707 See supra paras 250-251 L04 T 1136-1138 L04 T 1192-1194 See supra para 267 L96 T 2295 L96 T 2349 2354-2355 2360 Exhibits P98 and P100 L96 T 2349 160 Case No type Case # type date 26 July 1998 at which point he was escorted under KLA guard with the other prisoners to the Berishe Berisa Mountains In the finding of the Chamber it has also been established therefore that Hetem Rexhaj was not taking any active part to the hostilities during this period of time 437 L04 testified that he witnessed Hetem Rexhaj being beaten and questioned on three or four occasions by a KLA soldier L04 said this was Shala 1489 and on one occasion by a KLA soldier L04 stated was Qerqizi 1490 There is no other evidence as to these specific instances of mistreatment While the Chamber accepts the honesty of L04 in this and his other evidence what he says about the circumstances of the beating and questioning is so lacking in precision and detail that the Chamber is left with a degree of uncertainty about what did occur Further while L96 spoke of the condition of Hetem Rexhaj neither he nor other witnesses mentioned visible injuries or other signs of physical assault when Hetem Rexhaj was seen on 25 or 26 July 1998 In these circumstances the Chamber is in the end not persuaded that it should find on the available evidence that Hetem Rexhaj was beaten on several occasions in the course of his detention by the KLA at the Llapushnik Lapusnik prison camp 438 On the basis of the foregoing leaving aside for the present the issue of the criminal responsibility of the three Accused the Chamber is not satisfied that Hetem Rexhaj was subjected to physical mistreatment during his detention by the KLA at the Llapushnik Lapusnik prison camp Nevertheless as described earlier 1491 the Chamber is persuaded that the conditions of detention in the cowshed were such that they caused serious mental or physical suffering to the detainees among whom was Hetem Rexhaj or constituted a serious attack upon human dignity The fact that these conditions of detention were maintained over an extensive period of time persuades the Chamber that they were imposed deliberately In the finding of the Chamber the offence of cruel treatment Count 6 has therefore been established with respect to Hetem Rexhaj The offence of torture Count 4 however has not been established The allegation that Hetem Rexhaj was murdered by the KLA on or about 26 July 1998 in the Berishe Berisa Mountains is examined later in this decision 1492 1488 1489 1490 1491 1492 See infra para 494 L04 T 1136-1138 1176-1177 L04 T 1173-1174 See supra para 289 See infra paras 494-497 161 Case No type Case # type date xxviii Lutfi Xhemshiti 439 Lutfi Xhemshiti aka Luta was a forest ranger from the village of Berg I Zi Crni Breg 1493 Two personal relations of Lutfi Xhemshiti said in written statements admitted in evidence that they were present when Lutfi Xhemshiti was arrested by KLA soldiers in his home during the night of 2 July 1998 1494 There is evidence that a few nights before the arrest KLA soldiers among whom was Ramiz Qeriqi aka Luan came to Lutfi Xhemshiti’s house and seized his rifle 1495 Ramiz Qeriqi however denied in court being involved in the actual arrest of Lutfi Xhemshiti 1496 and on the available evidence the Chamber cannot make a positive finding on this issue 440 Several former prisoners testified to having seen Lutfi Xhemshiti at the Llapushnik Lapusnik prison camp L07 testified that when he was brought into the storage room sometime in July 1998 there were several detainees already held there among whom was “Lutfi from Breg I Zi” 1497 L06 also identified Lutfi Xhemshiti by photograph as one of his fellow detainees in the storage room 1498 This evidence is further confirmed by that of L10 who testified that “Lutfi from Breg I Zi” was detained with him in the storage room 1499 and by that of L96 who identified Lutfi Xhemshiti as a fellow detainee 1500 On the basis of this consistent evidence the Chamber is satisfied that Lutfi Xhemshiti was detained in the storage room at the Llapushnik Lapusnik prison camp for a period from approximately 2 July until 25 or 26 July 1998 at which point he was escorted under KLA guard with the other prisoners from the prison camp to the Berishe Berisa Mountains This finding is further confirmed by the evidence which is 1501 discussed later in this decision that Lutfi Xhemshiti was among the smaller group of prisoners who remained under KLA escort in the Berishe Berisa Mountains on 25 or 26 July 1998 after others were released and that his remains were found among those of other prisoners in a large grave at the execution site in the Berishe Berisa Mountains In the finding of the Chamber it has also been established therefore that Lutfi Xhemshiti was not taking any active part to hostilities during this period of time 441 There is no eyewitness evidence of mistreatment inflicted upon Lutfi Xhemshiti in the course of his detention by the KLA at the prison camp However L07 testified that when L07 was 1493 1494 1495 1496 1497 1498 1499 1500 1501 L96 testified that he knew Lutfi Xhemshiti before the war T 2409 Dragan Ja ovi also testified to the same effect T 5306-5307 Exhibits P195 and P196 Ramiz Qeriqi T 3614-3618 Exhibits P195 and P196 Ramiz Qeriqi T 3614-3618 L07 T 821-822 L06 T 1039-1045 Exhibit P54 L10 T 2922-2925 L96 T 2409 L96 identified Lutfi Xhemshiti by photograph as “Luta” from “Crni Breg” See infra paras 498-501 162 Case No type Case # type date first brought into the storage room Lutfi Xhemshiti appeared to have been severely beaten Along with this evidence there is also significant confirmation from forensic examination of the remains of Lutfi Xhemshiti which revealed that he had suffered fractures to two ribs due to blunt force traumas inflicted about two weeks before death i e while at the time he was detained by the KLA at the prison camp 1502 There is no evidence however as to the specific circumstances of the mistreatment which caused these injuries or as to the identity of the assailants 442 On the basis on the foregoing leaving aside for the present the issue of the criminal responsibility of the three Accused the Chamber is satisfied that during the period of his detention by the KLA in the storage room at the Llapushnik Lapusnik prison camp Lutfi Xhemshiti suffered severe beatings which caused multiple fractures to the ribs While as found above the Chamber cannot make any findings as to the specific circumstances in which the mistreatment occurred or as to the exact perpetrators in light of the forensic evidence and the general conditions in the prison camp the Chamber is persuaded that Lutfi Xhemshiti was subjected to serious mental or physical suffering or injury and that the perpetrators acted deliberately The Chamber therefore finds that the offence of cruel treatment Count 6 has been made out The Chamber is however not satisfied on the evidence that the mistreatment of Lutfi Xhemshiti was carried out for any prohibited purpose and therefore finds that the elements of the offence of torture have not been established Count 4 The allegation that Lutfi Xhemshiti was murdered by the KLA on or about 26 July 1998 in the Berishe Berisa Mountains is examined later in this decision 1503 xxix Shyqyri Zymeri 443 Shyqyri or “Shyqe” Zymeri was from the village of Godanc Godance 1504 One of his personal relations gave a statement that during the night of 26 June 1998 unidentified KLA soldiers came to the house of Shyqyri Zymeri seized a rifle questioned Shyqyri Zymeri about a pistol and forcibly arrested him 1505 444 L04 testified to being detained in the cowshed at the Llapushnik Lapusnik prison camp together with “Shyqja from Godance” whom he identified by photograph as Shyqyri Zymeri 1506 L96 also stated that “Shyq from Godance” whom he identified by photograph as Shyqyri Zymeri 1502 1503 1504 1505 1506 Dr George Maat T 5173-5175 Exhibit P200 See infra paras 498-502 Exhibit P224 Exhibit P224 see also Exhibit P221 Further it is the evidence of Dragan Ja ovi that he received a report that Shyqyri Zymeri was arrested together with a number of individuals by unknown individuals on 27 June 1998 Dragan Ja ovi testified that reports were received as to the alleged involvement of among others Ramiz Qeriqi aka Luan T 5223-5224 5231-5243 Ramiz Qeriqi denied being involved in these arrests T 3623 There is no further evidence however which could enable the Chamber to make a positive finding on this issue L04 T 1131-1135 1199-1206 Exhibit P54 163 Case No type Case # type date was at the Llapushnik Lapusnik prison camp 1507 although L96 appears not to have seen him prior to the last day on 25 or 26 July 1998 when the prisoners were gathered in the courtyard and escorted to the Berishe Berisa Mountains Both L04 and L96 described how Shyqyri Zymeri was suffering from a broken leg and how he had to be carried throughout the difficult march under KLA escort to the Berishe Berisa Mountains 1508 In this respect the Chamber observes that L06 also recounted in his evidence that one of the prisoners taken to the Berishe Berisa Mountains on the last day had a broken leg 1509 This consistent evidence combined with the fact that as discussed later in this decision 1510 Shyqyri Zymeri was among the smaller group of prisoners who remained in the Berishe Berisa Mountains under KLA escort on 25 or 26 July 1998 after others were released and that his remains were found among those of other prisoners from the camp in a large grave at the execution site in the Berishe Berisa Mountains leaves the Chamber persuaded and it so finds that Shyqyri Zymeri was detained in the cowshed at the Llapushnik Lapusnik prison camp for a period from about 27 June 1998 until 25 or 26 July 1998 at which point he was escorted by KLA guards with the other remaining prisoners to the Berishe Berisa Mountains In the finding of the Chamber it has also been established therefore that Shyqyri Zymeri was not taking any active part to the hostilities during this period of time 445 Aside from the evidence just considered as to Shyqyri Zymeri’s broken leg at the time of the evacuation of the prison camp the forensic examination of his remains revealed that he also suffered multiple fractures to four ribs and to the right tibia due to blunt force traumas inflicted between two and three weeks before death 1511 i e while he was detained by the KLA in the Llapushnik Lapusnik prison camp There is no evidence however as to the circumstances of this mistreatment or as to the identity of the perpetrator or perpetrators 446 On the basis of the foregoing leaving aside for the present the issue of the criminal responsibility of the three Accused the Chamber is satisfied that in the course of his detention by the KLA at the Llapushnik Lapusnik prison camp Shyqyri Zymeri suffered severe mistreatment which caused multiple fractures While the Chamber cannot be make positive findings as to the circumstances in which this mistreatment occurred or as to the identity of the perpetrators in light of the forensic evidence and the general conditions prevailing in the prison camp the Chamber is persuaded that Shyqyri Zymeri endured serious mental or physical suffering or injury and that the perpetrators acted deliberately The Chamber therefore finds that the offence of cruel treatment Count 6 has been made out The Chamber cannot be satisfied however that the mistreatment of 1507 1508 1509 1510 L96 T 2409 Exhibit P54 L04 T 1139-1141 L96 T 2349-2350 2352 2363 2409 L06 T 1025-1028 See infra paras 503-506 164 Case No type Case # type date Shyqyri Zymeri was carried out for any of the prohibited purposes required for the offence of torture Count 4 to be established The allegation that Shyqyri Zymeri was murdered by the KLA on or about 26 July 1998 in the Berishe Berisa Mountains is examined later in this decision 1512 3 Crimes in the Berishe Berisa Mountains Count 10 447 It is alleged in the Indictment that on or about 26 July 1998 ten Kosovo Albanian detainees from the Llapushnik Lapusnik prison camp were murdered in the Berishe Berisa Mountains 1513 The names of the alleged victims are set out in Annex III of the Indictment On the basis of these allegations the Accused Fatmir Limaj and Haradin Bala are charged with two counts of murder as a violation of the laws or customs of war and as a crime against humanity under Articles 3 and 5 of the Statute respectively Counts 9 and 10 For reasons given earlier 1514 Count 9 is dismissed in the present case 448 As described earlier in this decision on 25 and 26 July 1998 Serbian forces launched a large offensive against the KLA forces in the Llapushnik Lapusnik area 1515 As this offensive developed to the advantage of the Serbian forces the departure of KLA forces from Llapushnik Lapusnik and the prison camp was precipitated It is not altogether clear from the evidence whether the prison camp was abandoned on 25 or 26 July 1998 this however does not bear upon the findings of the Chamber relating to the events subsequent to the departure from the prison camp The evidence shows that in the morning of 25 or 26 July 1998 the two guards identified as Shala and Murrizi gathered the prisoners remaining at the time in prison camp from their respective places of detention into the yard 1516 Shelling could be heard 1517 Shala and Murrizi both armed with Kalashnikov automatic weapons ordered the twenty or so prisoners to walk towards the Berishe Berisa Mountains Murrizi led them towards the hills 1518 Shala brought up the rear 1519 Several witnesses have recounted before the Chamber that most of the prisoners were in a weak physical conditions some worse than others 1520 One of the prisoners in particular had a broken leg and had to be carried throughout the march 1521 1511 1512 1513 1514 1515 1516 1517 1518 1519 1520 1521 Dr George Maat T 5164-5168 Exhibit P200 See also Exhibit P111 See infra paras 503-507 Indictment paras 34-37 See supra para 228 See supra paras 78-81 L04 T 1192-1194 L12 1813-1815 L06 T 1025 1028 L10 T 2960-2961 L96 2347 2515 L12 T 1813-1815 L06 T 1025 1028 L10 T 2960 L12 T 1815-1818 L96 T 1485-2486 L12 T 1815-1818 L06 T 1107 L10 T 2960-2961 L06 T 1025 1028 L10 T 2960-2961 L96 T 2349-2350 L06 T 1025 1028 L10 T 2960-2961 L12 T 1815-1818 L96 T 2349-2350 165 Case No type Case # type date 449 L96 testified that on the way as the group was on a major path in the forest a tractor passed by carrying armed civilians 1522 Shala was then close to L96 L96’s evidence is that he heard Shala say that “Commander Çeliku” was coming and that he would ask him what he should do with the prisoners 1523 Shala then ordered the prisoners to stop and went to talk to a man wearing a uniform 1524 he then returned with one of the men accompanying the commander and ordered the prisoners to continue their march 1525 As discussed later in this decision 1526 although two of the prisoners testified to seeing a tractor as they marched this account by L96 was not confirmed in any other respect by any of the witnesses who described the march 1527 450 The group arrived at a meadow in the Berishe Berisa Mountains and stopped near a cherry 1528 tree The accounts of the survivors of this day are consistent that after about two hours Shala called out the names of about ten prisoners that is about half of the group who were taken aside some 100 metres away 1529 1530 told to go They were each given a piece of paper confirming their release and While the evidence of most witnesses is that Shala was the one who selected the prisoners and released them one witness testified that he was released by Murrizi 1531 No examples of these pieces of paper are in evidence In the finding of the Chamber both Shala and Murrizi were engaged in the process of releasing this group of prisoners 451 Only one witness L96 gave direct evidence as to what happened to the prisoners who remained in the Berishe Berisa Mountains after the first group was released L96 testified that some forty minutes to two hours1532 after the first group of prisoners was taken aside and released Shala returned to the cherry tree called out the names of the remaining prisoners and ordered Murrizi to lead them to another location 1533 The group arrived at a clearing The detainees were given some water and Shala ordered them to sit down 1534 On L96’s evidence Shala was then accompanied by Murrizi and by another soldier whom L96 said was sent by the man he claims was Commander Çeliku 1535 Shala then said something to Murrizi and this third soldier after which Shala stated to the prisoners “This is your death penalty” and started to charge his weapon The 1522 1523 1524 1525 1526 1527 1528 1529 1530 1531 1532 1533 1534 1535 L96 T 2364 Exhibit P106 L96 T 2364 L96 T 2364-2365 L96 T 2365 See infra para 554 L04 T 1192-1195 L10 T 2966 L12 testified that during the march he did not see anyone T 1818 L06 10251026 L06 T 1028-1029 L10 T 2962 L96 T 2372-2374 Exhibit P108 see supra para 278 L06 T 1028-1030 L12 1815-1818 L10 T 2962-2963 L06 T 1028-1030 L10 T 2962-2965 L12 T 1817-1818 L04 T 1194-1195 L96 T 2377 2486 L96 T 2377-2379 L96 T 2379-2381 Exhibits P108 and P109 L96 T 2365 166 Case No type Case # type date two other men had taken position already L96 stated that he immediately started to run in the opposite direction from the three men when he heard bursts of fire coming from two Kalashnikovs He heard some screaming It is his evidence that he managed to escape rolling down the hill After a while no sound of fire or scream could be heard any longer It is L96’s evidence that it became clear to him that the prisoners were dead 1536 452 L96 testified that he later came to discover that another man Xheladin Ademaj also survived the execution 1537 Xheladin Ademaj has not given evidence in this case Kaare Birkeland formerly a CCIU investigator 1538 on 13 September 2000 testified that he interviewed Xheladin Ademaj During this interview Xheladin Ademaj did not mention anything about an execution in the Berishe Berisa Mountains rather he stated that he was taken by KLA soldiers to the forest and told to go 1539 Kaare Birkeland testified that when he confronted Xheladin Ademaj with L96’s statement recounting the execution Xheladin Ademaj orally admitted to Kaare Birkeland to having lied in his previous statement but did not want to have this on the record 1540 However two prisoners who were escorted to the Berishe Berisa Mountains by the KLA soldiers on 25 or 26 July 1998 L04 and L12 testified that “Xhela” whom they recognised on a photograph of Xheladin Ademaj was among the prisoners who remained behind after the first group was released 1541 This evidence leaves the Chamber persuaded that Xheladin Ademaj was among the prisoners who remained under KLA escort at the Berishe Berisa Mountains after some were released and that Xheladin Ademaj either escaped the execution or was released on 25 or 26 July 1998 As is detailed later the Chamber cannot exclude or confirm the possibility that Hetem Rexhaj also survived the execution 1542 453 The evidence of L96 as to the identity of the alleged perpetrators requires further exploration For reasons detailed later in this decision the Chamber is not able to accept as accurate and reliable the evidence of L96 as to the encounter with Commander Çeliku 1543 Neither is the Chamber persuaded that a third KLA soldier was present at the time of the shooting a third soldier L96 described as sent by Çeliku and who was with Shala and Murrizi at the time of the execution The Chamber is not able to reach a positive finding one way or the other about the 1536 1537 1538 1539 1540 1541 1542 1543 L96 T 2381-2383 L96 T 2397-2398 Kaare Birkeland T 1644-1648 Kaare Birkeland T 1649-1650 Exhibit P85 Kaare Birkeland testified that the statement was based on notes he took during the interview on 13 September 2000 and was signed by Xheladin Ademaj on 21 September 2000 T 1647-1648 Kaare Birkeland’s original notes were “destroyed” after he left Kosovo T 1666-1667 Kaare Birkeland T 1657-1659 1677 1687 1690 Kaare Birkeland prepared a supplement to the original statement but that supplement is not signed by Xheladin Ademaj Exhibit P86 L04 T 1197-1198 L12 T 1824-1829 Exhibit P54 There is also evidence that Xheladin Ademaj was detained at the Llapushnik Lapusnik prison camp L04 T 1136-1138 L12 T 1820-1823 See infra paras 494-497 See infra paras 553-556 167 Case No type Case # type date presence of a third soldier A significant further element of the evidence of L96 of the meeting and discussion between Shala and the man he said was Commander Çeliku on 25 or 26 July 1998 is that at that meeting Commander Çeliku detached one of the soldiers who was with the tractor to provide a third guard with Shala and Murrizi for the remainder of the march and eventually for the execution of some of the prisoners Only one other prisoner L10 mentions a third guard although there is no indication in his evidence how this third soldier came to join the group 1544 The forensic evidence as to what was discovered with and in the immediate vicinity of the buried bodies of most of the last group of prisoners in the Berishe Berisa Mountains could also have afforded confirmation of the active presence of a third guard at the time the prisoners were executed Buried with the bodies and in the immediate vicinity there were found a number of spent cartridge cases and bullets A number of these are established to have been fired from the one Kalashnikov rifle A further number of these are established to have been fired from a different Kalashnikov rifle thus confirming the use of at least two similar weapons in the executions Some cartridge cases and bullets were in such poor condition that no conclusions could be reached as to the weapon from which they were fired There was another small group of cartridge cases and bullets These were of the same calibre as a Kalashnikov rifle but their condition did not enable a conclusion to be drawn whether or not they were fired from one of the two weapons referred to above Thus while the forensic evidence confirms that at least two Kalashnikov rifles were used to kill the prisoners this evidence neither establishes nor precludes that a third Kalashnikov was used The forensic evidence therefore neither confirms nor denies the active presence of a third guard in the Berishe Berisa Mountains at the time of the executions The evidence of L10 and L96 about the presence of a third guard may or may not be correct 454 However the Chamber is persuaded and finds from the general circumstances that KLA soldiers identified as Shala and Murrizi remained with the second group of prisoners in the Berishe Berisa and were present and directly involved in shooting at the prisoners This inference can be drawn from the body of evidence as to the role of both Shala and Murrizi in the prison camp 1545 the fact that when Llapushnik Lapusnik came under Serbian attack both men escorted the remaining prisoners on the march to the Berishe Berisa Mountains 1546 their joint role in the release of the first group of prisoners 1547 leaving the remaining prisoners including L96 with Shala and Murrizi 1548 and that the bodies of all of these remaining prisoners with the exception of L96 1544 1545 1546 1547 1548 L10 T 2961-2963 See supra para 276 See supra paras 448 450 See supra para 450 See supra para 450 168 Case No type Case # type date Hetem Rexhaj and Xheladin Ademaj were later recovered in the vicinity 1549 In the finding of the Chamber both Shala and Murrizi and perhaps a third KLA soldier acted together in shooting and killing all but L96 Xheladin Ademaj and perhaps Hetem Rexhaj of the remaining group of prisoners 455 L96 testified that sometime before he gave a second interview to the CCIU investigators in August 2001 he went back to Llapushnik Lapusnik with two relatives in order to locate the place of the killings in the Berishe Berisa Mountains On the execution site he said bones and skulls could still be seen although soil had been added on the ground 1550 It is L96’s evidence that he later led the CCIU investigators to the site 1551 456 The circumstances surrounding the escape of L96 as he recounted them are quite unconvincing L96 described three soldiers armed with Kalashnikovs standing about seven metres away from the twelve detainees sitting close to each other 1552 L96 further testified that one of the soldiers was standing in front of him and suggested that perhaps this soldier deliberately did not shoot him 1553 In these circumstances it is difficult to imagine how L96 could have physically managed to escape the execution A further concern in the view of the Chamber is the great lengths to which L96 went in the course of his evidence to avoid agreeing that he had previously had social and other contacts with Serbs 1554 In particular the Chamber finds itself unable to accept L96’s evidence that he walked alone some 40 km through KLA held territory after escaping from being shot in the Berishe Berisa Mountains on 25 or 26 July 1998 to reach Ferizaj Urosevac 1555 It appears to the Chamber that in truth L96 handed himself over to Serbian police manning the checkpoint in Komaran Komorane shortly after his escape following which he gave a detailed interview to Serbian authorities 1556 In the Chamber’s view the evidence given by L96 about what he did immediately after escaping and until he gave information to the Serbian authorities about his period of captivity with the KLA in the prison camp at Llapushnik Lapusnik and other aspects of his evidence including his singular account of how the marching group of prisoners met up with Fatmir Limaj and other KLA soldiers on a tractor in the Berishe Berisa Mountains that day was influenced by efforts by L96 to avoid admitting the true nature and extent of his relationship with some Serbs As indicated earlier the Chamber is left with strong reservations about some aspects 1549 1550 1551 1552 1553 1554 1555 1556 See infra paras 457 459 464 469 474 481 485 490 499 and 504 L96 T 2401-2402 L96 T 2402-2403 L96 T 2381-2383 L96 T 2473-2474 See supra para 26 L96 T 2388-2389 2420-2425 L96 T 2424-2428 Dragan Ja ovi T 5284 169 Case No type Case # type date of his evidence and is generally unprepared to accept his evidence if it is inconsistent with what other reliable witnesses have said or is not confirmed in significant respects by other evidence 1557 457 A large amount of evidence was adduced before the Chamber in relation to these events including expert evidence Judy Thomas a Canadian police officer serving in the CCIU detailed in a written statement admitted into evidence by consent of the Defence how initially eight bodies were recovered and exhumed from a remote location in the Berishe Berisa Mountains between 20 and 24 August 2001 1558 and how a ninth body came to be recovered and exhumed after a further inspection on 11 April 2002 about 14 metres away from the original grave site 1559 Two civilians had led the investigators to the location 1560 The remains of the eight bodies initially uncovered and those of the ninth body found later were all submitted to detailed forensic investigation 1561 Judy Thomas further noted that there were no marked graves or holes in the location and that the bodies had been covered with soil which was not soil natural to the location This and other findings led her to conclude that the victims while killed in the location where the bodies were found had been covered at some later time 1562 The autopsy of the skeletal remains of the first eight bodies was conducted by an OSCE forensic anthropologist Dr Tarja Formisto between 5 and 12 September 2001 that of the ninth body was conducted by that same person on 16 April 2002 1563 This autopsy established for all the bodies that death had occurred more than two years earlier which is consistent with the time of the alleged murders 1564 Two anthropological examinations of the remains were further carried out by a team of experts led by Dr Jose Pablo Baraybar between November 2002 and December 2003 1565 and by Dr George Maat in July 2003 1566 In May 2004 Dr Daniel Vanek of the International Commission on Missing Persons “ICMP” submitted a report on the results of the DNA analysis of biological samples from eight of the nine bodies which samples had been provided by the CCIU An addendum to the report was further submitted in December 2004 1567 The ballistic analysis of cartridge cases bullets and fragments which as the parties have agreed were found at the exhumation site 1568 reveals the presence of more than 30 cartridge cases of the calibre used in Kalashnikov automatic rifles most of which were manufactured in Albania a few in China and one in East Germany 1569 As discussed 1557 1558 1559 1560 1561 1562 1563 1564 1565 1566 1567 1568 1569 See supra para 26 Exhibit P110 The location was identified by the Global Positional Satellite as 88467E-09500N Exhibit P110 paras 41-42 of Judy Thomas’s statement and memorandum 0323-2015 Exhibit P110 para 18 of Judy Thomas’s statement Exhibit P110 paras 41-42 of Judy Thomas’s statement and memorandum 0323-2015 Exhibit P110 para 39 of Judy Thomas’s statement Exhibit P111 Exhibit P111 Exhibit P111 Exhibit P200 Both the report and the addendum were admitted as Exhibit P112 T 2580 Exhibit P113 p 7 170 Case No type Case # type date above the conclusions of the ballistics expert Wim Kerkhoff seem to indicate that most of the cartridge cases were fired from two different Kalashnikov type weapons but a few cartridge cases of similar calibre could not be positively determined to have been fired from either of those two Kalashnikovs Another group of five bullets and a jacket stem were also analysed However not surprisingly it could not be determined whether or not any of the bullets were fired from any of the cartridge cases or whether or not any had been fired from either of the two weapons previously mentioned or indeed from a third weapon of similar calibre 1570 A metal fragment was also recovered at the site but nothing of significance stemmed from the ballistic examination of it 1571 Six cartridge cases and five projectiles were found with the bodies themselves 1572 All of these expert reports were admitted into evidence with the consent of the Defence and the Defence have not challenged the validity or correctness of any of the findings made by these experts from their forensic DNA and ballistic examinations 1573 The location of the gravesites where the nine bodies were found i e into the mountains east of the Berishe Berisa village near the road leading to Klecke Klecka 1574 accords generally with the prisoners’ evidence including that of L96 a Emin Emini 458 The Chamber has found earlier in this decision that Emin Emini was detained in the Llapushnik Lapusnik prison camp 1575 There is oral evidence before the Chamber that Emin Emini was among the small group of prisoners who remained behind in the Berishe Berisa Mountains when the first group was released L04 testified that Emin Emini whom he identified by photograph 1576 was one of the prisoners who stayed behind in the Berishe Berisa Mountains when he was released 1577 L12 when prompted remembered the names of a number of prisoners including that of Emin Emini whom he stated was in the group that was left behind in the Berishe Berisa Mountains when he was released 1578 L96 also identified Emin Emini by photograph as one of the prisoners of the group which was taken to be executed 1579 459 The DNA analysis conducted on bone samples from body 3 NN987 retrieved from the large grave at the Berishe Berisa Mountains execution site when compared with the DNA from a 1570 1571 1572 1573 1574 1575 1576 1577 1578 1579 Exhibit P113 p 9 Exhibit P113 p 9 Exhibit P110 T 2575-2581 Exhibit P1 maps 6 and 7 See supra para 410 L04 T 1199-1206 Exhibit P54 L04 T 1196-1197 Exhibit P76 L12 T 1820-1823 L12 identified Emin Emini by photograph T 1824-1829 Exhibit P54 L96 T 2405-2409 Exhibit P54 While the name of Emin Emini does not appear as such among the names of prisoners at the execution site which L96 listed he appears to be identified on that list as “Emin Idrizi Gerrnalev” Exhibit P108 171 Case No type Case # type date blood sample given by a family member of Emin Emini revealed that the probability of relatedness was greater than 98 8% 1580 The Chamber is therefore satisfied that one of the bodies body 3 NN987 retrieved from the execution site in the Berishe Berisa Mountains was that of Emin Emini 460 The autopsy conducted by Dr Tarja Formisto on body NN987 on 6 September 2001 revealed a gunshot injury to the skull 1581 The forensic examination of the skeletal remains of NN987 subsequently performed by Dr Jose Pablo Baraybar ascertained that death was caused by multiple gunshot wounds to the head 1582 This conclusion was even further confirmed in substance by a further forensic examination by Dr George Maat who found that the victim NN987 suffered multiple perimortem fractures due to mechanical traumas and consistent with gunshot wounds and blunt force traumas 1583 461 On the basis of the above evidence the Chamber is satisfied that the body of Emin Emini was exhumed from the large grave at the execution site in the Berishe Berisa Mountains and that Emin Emini was killed in that same location by multiple gunshots Even if the account of L96 regarding the execution of the prisoners is left aside the evidence as to the detention of Emin Emini in the prison camp his presence among the last group of prisoners held at that general location in the Berishe Berisa Mountains by the KLA soldiers known as Shala and Murrizi both of whom were then armed the manner in which he died i e multiple gunshot wounds and the number of victims who suffered the same fate leave no doubt in the Chamber’s mind that Emin Emini was killed by others and that the perpetrators were the KLA members known as Shala and Murrizi each of whom acted together and with an intent to kill him The Chamber is also satisfied that at the time he was killed Emin Emini was detained by the KLA and was not taking any active part in any hostilities The possibility which cannot be entirely discounted on the evidence that there was also a third KLA soldier involved in the shootings does not in the Chamber’s view affect these findings 462 By virtue of the foregoing and leaving aside for the present the question of the criminal responsibility of the Accused Fatmir Limaj and Haradin Bala the Chamber finds that the elements of the offence of murder Count 10 are established in relation to Emin Emini b Ibush Hamza 463 The Chamber has previously found that the evidence relating to the identity of those held in the Llapushnik Lapusnik prison camp of itself does not establish that Ibush Hamza had been 1580 1581 1582 1583 Exhibit P112 p 6 of the report and p 5 of the addendum Exhibit P111 Exhibit P111 Exhibit P200 172 Case No type Case # type date detained in the Llapushnik Lapusnik prison camp 1584 However the name “Ibushi” appears on the list of persons whom L04 testified were left behind in the Berishe Berisa Mountains upon his release 1585 The clear inference is that a person known to L04 in the camp as Ibushi was a fellow prisoner in the camp was one of the prisoners escorted on 25 or 26 July 1998 to the Berishe Berisa Mountains and was among the last group of prisoners left behind after a number of prisoners were released The Chamber so finds 464 The DNA analysis conducted on bone samples from body 1 NN985 retrieved from the large grave at the Berishe Berisa Mountains execution site when compared with the DNA from blood samples given by family members of Ibush Hamza revealed that there was a probability of relatedness greater than 99 9% with the DNA of body 1 NN985 1586 The Chamber is therefore satisfied that one of the bodies body 1 – NN985 retrieved from the large grave at the execution site in the Berishe Berisa Mountains was that of Ibush Hamza known in the prison camp to L04 as Ibushi 465 The autopsy conducted by Dr Tarja Formisto on body NN985 on 5 September 2001 revealed multiple gunshot injuries 1587 The forensic examination of the skeletal remains of NN985 subsequently performed by Dr Jose Pablo Baraybar ascertained that death was caused by multiple gunshot wounds to the chest and pelvis 1588 This conclusion was confirmed by a further forensic examination by Dr George Maat who found that the victim NN985 had suffered multiple perimortem fractures due to mechanical traumas 1589 466 On the basis of the above evidence the Chamber is satisfied that the body of Ibush Hamza was exhumed from the large grave at the execution site in the Berishe Berisa Mountains and that Ibush Hamza was killed in that location by multiple gunshots Even if the account of L96 regarding the execution of the prisoners is left aside the evidence of L04 as to the detention of the man known to him as Ibushi the presence of this man among the last group of prisoners held at that general location in the Berishe Berisa Mountains by the KLA soldiers known as Shala and Murrizi both of whom were then armed the manner in which he died i e multiple gunshot wounds and the number of victims who suffered the same fate leave no doubt in the Chamber’s mind that Ibush Hamza was killed by others and that the perpetrators were the KLA members known as Shala and 1584 1585 1586 1587 1588 1589 See supra para 415 Exhibit P54 L12 T 1824-1829 L04 T 1199-1206 L96 T 2405-2409 The name of Ibush Hamza does not appear on the list L96 gave of names of the prisoners at the execution site Exhibit P108 Exhibit P76 L04 T 1197-1198 Exhibit P112 p 5 of the report and p 4 of the addendum The identity of the donor of the reference blood sample was kept confidential Exhibit P111 Exhibit P111 Exhibit P200 173 Case No type Case # type date Murrizi each of whom acted together and with an intent to kill him The Chamber is also satisfied that at the time he was killed Ibush Hamza was detained and was not taking any active part in any hostilities The possibility which cannot be entirely discounted on the evidence that there was also a third KLA soldier involved in the shootings does not in the Chamber’s view affect these findings 467 By virtue of the foregoing and leaving aside for the present the question of the criminal responsibility of the Accused Fatmir Limaj and Haradin Bala the Chamber finds that the elements of the offence of murder Count 10 are established in relation to Ibush Hamza c Hyzri Harjizi 468 The Chamber has already found that Hyzri Harjizi was detained in the Llapushnik Lapusnik prison camp 1590 Hyrzi Harjizi was among the prisoners who remained behind in the Berishe Berisa Mountains after the first group was released L04 identified Hyzri Harjizi by photograph1591 and by name1592 as one of the prisoners left behind when L04 was released Although L96 did not identify Hyzri Harjizi by photograph 1593 he testified that “Hyzri from Belince” was one of the prisoners in the group which remained at the cherry tree 1594 The Chamber notes in this respect that L10 testified to being detained in the storage room with “Hyzri from Belince” whom he identified by photograph as being Hyzri Harjizi 1595 L04 also identified Hyrzi Harjizi by photograph as the man he referred to in his evidence as “Hyzri from Belince” 1596 469 The DNA analysis conducted on bone samples from body 5 NN989 retrieved from the large grave at the execution site in the Berishe Berisa Mountains when compared with the DNA from blood samples given by family members of Hyzri Harjizi revealed that the probability of relatedness was greater than 99 9% 1597 Further on 7 October 2001 Hyzri Harjizi’s brother Haxbi Harjizi was shown photographs of the clothing recovered from the gravesite and identified the shirt found on body 5 NN989 as that which his brother was wearing when he disappeared 1598 In light of this evidence the Chamber is satisfied that one of the bodies body 5 - NN989 retrieved from the execution site in the Berishe Berisa Mountains was that of Hyzri Harjizi 1590 1591 1592 1593 1594 1595 1596 1597 1598 See supra paras 417-419 L04 T 1199-1206 Exhibits P54 “Hyzrija” appears on the list of names L04 gave of prisoners who were left behind in the Berishe Berisa Mountains T 1197-1198 Exhibit P76 L96 T 2405-2409 Exhibit P54 L96 T 2377-2387 “Hyzri from Belince” appears on the list of names L96 gave of the prisoners at the execution site Exhibit P108 L10 T 2922-2925 2969-2973 Exhibit P54 L04 T 1199-1206 Exhibit P54 Exhibit P112 p 8 of the report and p 6 of the addendum Exhibit P110 para 52 of Judy Thomas’s statement 174 Case No type Case # type date 470 The autopsy conducted by Dr Tarja Formisto on body NN989 on 10 September 2001 revealed a fractured skull 1599 The forensic examination of the skeletal remains of NN989 subsequently performed by Dr Jose Pablo Baraybar ascertained that the skull presented fractures consistent with a tangential gunshot wound and that death was caused by a gunshot wound to the head 1600 This conclusion is confirmed by a further forensic examination by Dr George Maat who found that the victim NN989 suffered perimortem fractures to the skull due to mechanical traumas 1601 471 On the basis of the above evidence the Chamber is satisfied that the body of Hyzri Harjizi was exhumed from the large grave at the execution site in the Berishe Berisa Mountains and that Hyzri Harjizi was killed in that location by gunshot to the head Even if the account of L96 regarding the execution of the prisoners is left aside the evidence as to Hyzri Harjizi’s detention in the prison camp and presence in the last group of prisoners held at that general location in the Berishe Berisa Mountains by the KLA soldiers known as Shala and Murrizi both of whom were then armed the manner in which he died and the number of victims who suffered the same fate in the same location leaves no doubt for the Chamber that Hyzri Harjizi was killed by gunshot wound to the head and that he was shot by the KLA soldiers identified as Shala and Murrizi who acted together and with an intent to kill him The Chamber is also satisfied that at the time he was killed Hyzri Harjizi was detained by the KLA and was not taking any active part in any hostilities The possibility which cannot be entirely discounted on the evidence that there was also a third KLA soldier involved in the shootings does not in the Chamber’s view affect these findings 472 By virtue of the foregoing and leaving aside for the present the question of the criminal responsibility of the Accused Fatmir Limaj and Haradin Bala the Chamber finds that the elements of the offence of murder Count 10 are established in relation to Hyzri Harjizi d Shaban Hoti 473 The Chamber has already found that Shaban Hoti was detained in the Llapushnik Lapusnik prison camp 1602 Only one witness L96 gave oral evidence before the Chamber that Shaban Hoti was among the prisoners who remained behind in the Berishe Berisa Mountains when the first group was released L96 testified that Shaban Hoti was one of the prisoners present at the execution site 1603 None of the other prisoners who testified as to the march to the Berishe Berisa 1599 1600 1601 1602 1603 Exhibit P111 Exhibit P111 Exhibit P200 Dr George Maat T 5160-5163 5176 See supra paras 422-423 L96 T 2377-2387 Shaban Hoti appears on the list of names L96 gave of the prisoners at the execution site Exhibit P108 175 Case No type Case # type date Mountains was able to identify Shaban Hoti by photograph 1604 None of them listed him either as one of the prisoners who remained in the Berishe Berisa Mountains when the first group was released In the Chamber’s view however this may well be due to the fact that Shaban Hoti was detained in the main house in the Llapushnik Lapusnik prison camp 1605 Aside from L96 who was also held in the house during the first three days of his detention and had encountered Shaban Hoti at that time 1606 it is to be expected that none of the other prisoners had contact with Shaban Hoti in the course of their detention at the prison camp so that he was unfamiliar to them in the Berishe Berisa Mountains on the day of the execution 474 The DNA analysis conducted on bone samples from body 4 NN988 retrieved from the large grave at the execution site in the Berishe Berisa Mountains when compared with the DNA from blood samples given by family members of Shaban Hoti revealed that the probability of relatedness was greater than 99 9% 1607 The Chamber is therefore satisfied that one of the bodies body 4 - NN988 retrieved from the execution site in the Berishe Berisa Mountains was that of Shaban Hoti 475 The autopsy conducted by Dr Tarja Formisto on body NN988 on 10 September 2001 revealed numerous fractures including to the skull 1608 A deformed projectile was recovered during the autopsy 1609 The forensic examination of the skeletal remains of NN986 subsequently performed by Dr Jose Pablo Baraybar ascertained that death was caused by multiple gunshot wounds to the head and chest 1610 This conclusion was confirmed by a further forensic examination by Dr George Maat who found that the victim NN988 had suffered multiple perimortem fractures including to the skull due to mechanical traumas 1611 All three examinations are consistent as to the injuries which led to the death of Shaban Hoti 476 On the basis of the above evidence the Chamber is satisfied that the body of Shaban Hoti was exhumed from the large grave in the vicinity of the execution site in the Berishe Berisa Mountains and that Shaban Hoti was killed on 25 or 26 July 1998 in that same location by multiple gunshots Even putting to one side the account of L96 regarding the execution of the prisoners the fact that Shaban Hoti had been detained by the KLA at the Llapushnik Lapusnik prison camp until 1604 1605 1606 1607 1608 1609 1610 L04 T 1199-1206 L06 T 1039-1045 L12 T 1824-1829 Exhibit P54 Further Shaban Hoti does not appear on the list of names given by L04 of the prisoners who remained behind in the Berishe Berisa Mountains when he was released Exhibit P76 See supra paras 422-423 L96 T 2312-2316 2336 2346-2347 Exhibit P112 p 6 of the second report dated 12 December 2004 A previous DNA analysis of body 4 NN988 had excluded the probability of relatedness with the family of Hetem Rexhaj p 7 of the expert report Exhibit P111 Exhibit P110 Exhibit P111 176 Case No type Case # type date 25 or 26 July 1998 the fact that he was found dead in the main grave in the vicinity of the execution site the cause of his death and the number of victims who suffered the same fate in the same location leaves no doubt in the mind of the Chamber that Shaban Hoti was killed by gunshot and that the perpetrators were the KLA soldiers Shala and Murrizi who were armed and guarding the group of prisoners who remained after others were released Given the circumstances the Chamber is also satisfied and finds that Shala and Murrizi acted together to kill Shaban Hoti on 25 or 26 July 1998 and that each acted with an intent to kill him The Chamber is also satisfied and finds that at the time of his death Shaban Hoti was detained by the KLA and was not taking any active part in any hostilities The possibility which cannot be entirely discounted on the evidence that there was also a third KLA soldier involved in the shootings does not in the Chamber’s view affect these findings 477 By virtue of the foregoing and leaving aside for the present the question of the criminal responsibility of the Accused Fatmir Limaj and Haradin Bala the Chamber finds that the elements of the offence of murder Count 10 are established in relation to Shaban Hoti e Hasan Hoxha 478 The Chamber has found earlier in this decision that Hasan Hoxha was detained in the Llapushnik Lapusnik prison camp 1612 There is conflicting oral evidence before the Chamber about the fate of Hasan Hoxha and his alleged presence among the prisoners executed in the Berishe Berisa Mountains L96 identified Hasan Hoxha by photograph1613 and by name1614 as one of the prisoners remaining at the execution site after some had been released “Hasani” further appears on the list of names of the prisoners whom L04 testified as remaining in the Berishe Berisa Mountains on the day he was released 1615 L04 was unable however to identify Hasan Hoxha by photograph 1616 It is L64’s evidence that sometime in July 1998 he saw three bodies near the village of Morine Morina one of which he believed to be that of Hasan Hoxha 1617 L64 testified that he had seen Hasan Hoxha on a prior occasion shortly before then on the road in Llapushnik Lapusnik 1618 However it is the Chamber’s understanding of L64’s evidence that he was in a car when he saw the bodies and that he did not get out of the car to look closely at the 1611 1612 1613 1614 1615 1616 1617 1618 Exhibit P200 Dr George Maat T 5160-5163 See supra para 427 L96 T 2405-2409 Exhibit P54 L96 T 2406 The name “Hasan Hoxha Dobreve” appears on the list L96 gave of names of the prisoners at the execution site Exhibit P108 L04 T 1197-1198 Exhibit P76 L04 T 1199-1206 Exhibit P54 L64 T 4518-4519 L64 T 4515-4518 177 Case No type Case # type date bodies so as to confirm his suspicion that one of the bodies was that of Hasan Hoxha 1619 In these circumstances the Chamber is not prepared to place any reliance on L64’s evidence in this respect 1620 479 On 11 April 2002 in the course of a second exhumation of the site in the Berishe Berisa Mountains a ninth body NN376 was recovered by a CCIU team about 14 metres away from the main grave location The Chamber does not have any evidence that a DNA analysis was performed on the body In a report dated 23 May 2003 however CCIU investigator Andreas Manthey stated that the family of Hasan Hoxha positively identified the clothes recovered during the examination as those Hasan Hoxha was wearing the day of his disappearance 1621 The identification photo sheet of the trousers recovered with the remains of NN376 show dark “adidas” tracksuit pants with white or yellow stripes 1622 480 In an undated Missing Person Report compiled by the OSCE it is also stated that at the time of his disappearance Hasan Hoxha was wearing a black tracksuit with yellow stripes and sneakers 1623 Sometime in 2001 Hasan Hoxha’s brother Ramadan Hoxha examined the clothes recovered with the previous eight bodies and indicated at the time that Hasan Hoxha was wearing “adidas” training trousers 1624 Sometime in 2002 Ramadan Hoxha and Nuhi Hoxha Hasan’s son were called by the CCIU to identify clothes found with the ninth body and both stated that they positively identified the clothing including the “adidas” tracksuit pants underwear and vest of their missing relative 1625 481 The Chamber accepts from this positive clothing identification by Ramadan and Nuhi Hoxha which is not disputed by the Defence and finds that the clothes retrieved from the site together with the ninth body NN376 are those of Hasan Hoxha This is consistent with the evidence also outlined above The “adidas” training trousers are readily recognisable on the photo sheet and match the description given by Hasan Hoxha’s brother and that recorded in the Missing Person Report Further the evidence of Hasan Hoxha’s detention by the KLA in the Llapushnik Lapusnik prison camp and his identification by L96 at the execution site which the Chamber is able to accept in light of the confirmation provided by the other evidence discussed are also consistent with Hasan Hoxha’s presence among the prisoners remaining at the execution site on 25 or 26 July 1998 after some had been released The evidence offers no direct explanation for Hasan Hoxha’s body 1619 1620 1621 1622 1623 1624 1625 L64 T 4518-4519 See also supra para 28 Exhibit P110 Exhibit P111 Exhibits P46 and P147 Exhibit P110 Exhibits P185 and P186 178 Case No type Case # type date being some metres from the main grave this may simply be the position where Hasan Hoxha fell when shot A forensic examination of the skeletal remains of NN376 conducted by Dr Jose Pablo Baraybar identified the cause of death of Hasan Hoxha to be a gunshot wound to the chest 1626 482 On the basis of the above evidence the Chamber is satisfied that the body of Hasan Hoxha was exhumed from a grave at the execution site in the Berishe Berisa Mountains and that Hasan Hoxha was killed on 25 or 26 July 1998 in that location by gunshot Even leaving aside the account of L96 regarding the execution of the prisoners the fact that Hasan Hoxha had been detained by the KLA at the Llapushnik Lapusnik prison camp the location in which his body was found the manner in which he died i e gunshot wound to the chest and the number of victims who suffered the same fate and whose remains were found in that same location leaves the Chamber with no doubt that Hasan Hoxha was killed at the execution site on 25 or 26 July 1998 by the two KLA armed soldiers who were escorting the prisoners namely the individuals identified as Shala and Murrizi and that each of them acted together with an intent to kill him The Chamber is also satisfied that at the time he was killed Hasan Hoxha was detained by the KLA and was not taking any active part in the hostilities The possibility which cannot be entirely discounted on the evidence that there was also a third KLA soldier involved in the shootings does not in the Chamber’s view affect these findings 483 By virtue of the foregoing and leaving aside for the present the question of the criminal responsibility of the Accused Fatmir Limaj and Haradin Bala the Chamber finds that the elements of the offence of murder Count 10 are established in relation to Hasan Hoxha f Safet Hysenaj 484 The Chamber has already found that Safet Hysenaj was detained by the KLA in the Llapushnik Lapusnik prison camp 1627 The Chamber also has evidence that Safet Hysenaj was among the prisoners who remained behind in the Berishe Berisa Mountains when the first group was released L96 identified Safet Hysenaj by photograph as one of the prisoners present at the execution site 1628 L04 also listed “Safeti” as one of the prisoners in the group which was left behind after others were released in the Berishe Berisa Mountains 1629 485 The DNA analysis conducted on bone samples from body 8 NN1000 retrieved from the main grave at the execution site in the Berishe Berisa Mountains when compared to the DNA from 1626 1627 1628 1629 Exhibit P111 See supra para 430 L96 T 2406-2408 Exhibit P54 “Safet Hysenaj Petrove” appears on the list of names L96 gave of prisoners at the execution site Exhibit P108 L04 T 1197-1198 Exhibit P76 179 Case No type Case # type date blood samples given by family members of Safet Hysenaj revealed that the probability of relatedness was greater than 99 9% 1630 The Chamber is therefore satisfied that one of the bodies retrieved from the execution site body 8 – NN1000 in the Berishe Berisa Mountains was that of Safet Hysenaj 486 The autopsy conducted by Dr Tarja Formisto on body NN1000 on 12 September 2001 did not identify any injuries 1631 The forensic examination of the skeletal remains of NN1000 subsequently performed by Dr Jose Pablo Baraybar did not identify the cause of death 1632 However the further forensic examination conducted by Dr George Maat in 2003 revealed that victim NN1000 displayed a perimortem fracture of the right scapula due to mechanical trauma He also noted that the diagnosis as to the time of injury was uncertain 1633 487 On the basis of the above evidence the Chamber is satisfied that the body of Safet Hysenaj was exhumed from the main grave at the execution site in the Berishe Berisa Mountains Safet Hysenaj suffered a fracture of the right scapula around the time of death Further it remains the case that Safet Hysenaj had been detained by the KLA in the Llapushnik Lapusnik prison camp prior to his death and was among the prisoners escorted to the execution site by the armed KLA soldiers known as Shala and Murrizi On the basis of this evidence taken together the Chamber is satisfied that Safet Hysenaj was killed in the Berishe Berisa Mountains on 25 or 26 July 1998 at the same time as the other victims Further even leaving aside the account of L96 regarding the execution of the prisoners the fact that Safet Hysenaj was a prisoner at the time with a number of other victims who were executed at the same time at that location leaves the Chamber satisfied and it finds that Safet Hysenaj was killed by the KLA escorts identified as Shala and Murrizi who were acting together each with an intent to kill him The Chamber is also satisfied that at the time he was killed Safet Hysenaj was detained by the KLA and was not taking any active part in any hostilities The possibility which cannot be entirely discounted on the evidence that there was also a third KLA soldier involved in the shootings does not in the Chamber’s view affect these findings 488 By virtue of the foregoing and leaving aside for the present the question of the criminal responsibility of Fatmir Limaj and Haradin Bala the Chamber finds that the elements of the offence of murder Count 10 are established in relation to Safet Hysenaj 1630 1631 1632 1633 Exhibit P112 p 11 of the report and p 7 of the addendum Exhibit P111 Exhibit P111 Exhibit P200 Dr George Maat T 5158-5159 180 Case No type Case # type date g Bashkim Rashiti 489 The Chamber has already found that Bashkim Rashiti had been detained in the Llapushnik Lapusnik prison camp 1634 There is evidence before the Chamber that Bashkim Rashiti was among the prisoners who remained behind in the Berishe Berisa Mountains when the first group was released L10 testified that “Bashkim from Godance” 1635 whom he had previously identified as Bashkim Rashiti by photograph 1636 remained at the cherry tree together with 10 to 12 other prisoners after the first group of prisoners was released 1637 L96 also identified Bashkim Rashiti by photograph as one of the prisoners remaining at the execution site 1638 L04 did not name Bashkim Rashiti among the prisoners whom he testified were left behind in the Berishe Berisa Mountains 1639 however as has been found earlier L04 and Bashkim Rashiti had not been detained in the same room in the prison camp at Llapushnik Lapusnik so that Bashkim Rashiti was not familiar to L04 from the prison camp 490 The DNA analysis conducted on bone samples from body 2 NN986 retrieved from the large grave at the execution site in the Berishe Berisa Mountains when compared with the DNA from a family member of Bashkim Rashiti whose identity was kept confidential confirmed that body 2 was that of Bashkim Rashiti the probability of relatedness being greater than 99 9% 1640 The Chamber is therefore satisfied that one of the bodies body 2 - NN986 retrieved from the main grave at the execution site in the Berishe Berisa Mountains was that of Bashkim Rashiti 491 The autopsy conducted by Dr Tarja Formisto on body NN986 on 6 September 2001 revealed a gunshot injury to the skull 1641 The forensic examination of the skeletal remains of NN986 subsequently performed by Dr Jose Pablo Baraybar ascertained that death had been caused by a gunshot wound to the head 1642 This conclusion was confirmed by a further forensic examination by Dr George Maat who found that the victim NN986 had suffered a perimortem fracture to the skull due to mechanical traumas 1643 492 On the basis of the above evidence the Chamber is satisfied and finds that the body of Bashkim Rashiti was exhumed from the main grave at the execution site in the Berishe Berisa 1634 1635 1636 1637 1638 1639 1640 1641 1642 See supra para 433 In this respect the Chamber notes that there is evidence that Bashkim Rashiti was indeed originally from the village of Godanc Godance Exhibit P224 para 8 L10 T 2969-2973 Exhibit P54 L10 T 2965-2966 L96 T 2407-2408 Exhibits P54 and P108 Exhibit P76 Exhibit P112 p 5 of the report and p 4 of the addendum The identity of the donor of the reference blood sample was kept confidential Exhibit P111 Exhibit P111 181 Case No type Case # type date Mountains and that Bashkim Rashiti was killed at that location on 25 or 26 July 1998 by gunshot to the head Even leaving aside the account of L96 regarding the execution of the prisoners the fact that Bashkim Rashiti had been detained by the KLA at the prison camp the place where his remains were found the manner in which he died and the number of other prisoners who suffered the same fate leaves the Chamber satisfied and it finds that Bashkim Rashiti was killed by the two armed KLA escorts with the group of prisoners namely individuals identified as Shala and Murrizi who acted together and each with an intent to kill him The Chamber is also satisfied that at the time he was killed Bashkim Rashiti was detained by the KLA and was not taking any active part in any hostilities The possibility which cannot be entirely discounted on the evidence that there was also a third KLA soldier involved in the shootings does not in the Chamber’s view affect these findings 493 By virtue of the foregoing and leaving aside for the present the question of the criminal responsibility of Fatmir Limaj and Haradin Bala the Chamber finds that the elements of the offence of murder Count 10 are established in relation to Bashkim Rashiti h Hetem Rexhaj 494 The Chamber has already 1644 Llapushnik Lapusnik prison camp found that Hetem Rexhaj was detained in the The Chamber has heard oral evidence that Hetem Rexhaj was among the small group of prisoners who remained behind in the Berishe Berisa Mountains under the escort of two KLA armed soldiers known as Shala and Murrizi when the first group was released L96 testified that Hetem Rexhaj was among the prisoners present at the execution site 1645 This account is confirmed by the evidence of L04 who identified by photograph Hetem Rexhaj as one of the prisoners who remained in the Berishe Berisa Mountains after he was released 1646 L12 when prompted also remembered the name of “Hete from Petrovo” 1647 who on his evidence was in the second group that remained in the Berishe Berisa Mountains after some prisoners were released 1648 495 The detailed forensic examinations which have been conducted of the mass gravesite containing the remains of eight bodies in the Berishe Berisa Mountains and the separate nearby 1643 1644 1645 1646 1647 1648 Exhibit P200 Dr George Maat T 5160-5163 See supra para 436 L96 T 2377-2378 “Hete Rexhaj Petrove” appears on the list of names L96 gave of the prisoners present at the execution site Exhibit P108 L04 T 1192-1194 1199-1206 Exhibit P54 “Heta” appears on the list of names L04 gave of the prisoners who remained in the Berishe Berisa Mountains when he was released T 1197-1198 Exhibit P76 In this respect the Chamber notes that L96 testified that the family of Hetem Rexhaj came from the village of Petrove Petrovo T 2238 2253 L12 T 1820-1823 182 Case No type Case # type date grave containing the remains of a further body which was discovered in the following year and after the effects on the terrain of another winter have not identified any remains of Hetem Rexhaj 1649 It was the evidence of L96 that Hetem Rexhaj was left behind with the other members of the last group of prisoners when L96 made good his escape L96 was not able to say what happened to Hetem Rexhaj after L96 escaped There was no other evidence about what happened to Hetem Rexhaj 496 The fate of the other prisoners in the group provides some basis for an inference that Hetem Rexhaj was also killed with the other prisoners If that were so there are two obvious explanations for the failure to identify his remains First his body may have fallen in a different position from most of the prisoners This could well have occurred if he too had been trying to escape when he was shot and killed and his body was covered in due course where he fell That is consistent with the apparent circumstances of the death of Hasan Hoxha whose body was found some 14 metres from the main mass grave When it was found in 2002 some bones had become exposed no doubt as a consequence of another winter even though the existence of his body had not been discovered at the time of the exhumation of the remains in the mass grave in 2001 when the area was searched The possibility remains that the body of Hetem Rexhaj remains in the vicinity but undiscovered Secondly his body may have been moved from the site There is no evidence as to why this should have occurred or when although there is some unsupported indirect evidence from L96 of people from Kizhareke Kisna Reka who are said to have heard that a body was removed and other bodies covered on the orders of Shala 1650 Further possibilities include that Hetem Rexhaj was not killed that day he escaped or was spared or that he was not among the group of prisoners which remained with Shala and Murrizi in the Berishe Berisa Mountains that day even though the evidence persuades the Chamber that he was a prisoner in the camp at Llapushnik Lapusnik and that he was among the prisoners which were marched into the Berishe Berisa Mountains on 25 or 26 July 1998 by Shala and Murrizi There is also evidence that Hetem Rexhaj has not been seen again in the seven years that have passed since then 1651 497 The Prosecution seeks to maintain a circumstantial case of the murder of Hetem Rexhaj based in particular on his presence as a prisoner in the camp at Llapushnik Lapusnik his poor physical condition on 25 or 26 July 1998 when he and the other prisoners were marched into the mountains the execution of all the men who remained after some were released by Shala and 1649 1650 1651 In particular DNA analysis was performed on the bone samples of one of the bodies with a view to establishing whether the remains were those of Hetem Rexhaj but this analysis excluded the probability of relatedness Exhibit P112 p 7 of the expert report L96 T 2464-2467 L96 T 2464-2465 2467 183 Case No type Case # type date Murrizi save for L96 who escaped and Xheladin Ademaj the pattern of lawlessness and murder by KLA members at the camp of which it submits the events in the mountains on or about 26 July 2998 were an extension and the lack of any subsequent sighting of him in the seven years to the present While an inference of murder could be drawn from these facts in the view of the Chamber other inferences which are not consistent with murder are also open It necessarily follows having regard to the onus of proof that it has not been proved beyond reasonable doubt by the Prosecution that Hetem Rexhaj was murdered on 25 or 26 July 1998 in the Berishe Berisa Mountains The Chamber so finds i Lutfi Xhemshiti 498 The Chamber has already found that Lutfi Xhemshiti was detained in the Llapushnik Lapusnik prison camp 1652 There is consistent evidence before the Chamber that Lutfi Xhemshiti also known as “Luta” 1653 was among the prisoners who remained behind in the Berishe Berisa Mountains when the first group was released L10 identified “Luta” as one of the prisoners in the group which was left behind at the cherry tree 1654 “Luta” also appears in the list of names of the prisoners who L04 testified remained in the Berishe Berisa when he was released 1655 Lutfi Xhemshiti was further identified by L96 as one of the prisoners in his group at the execution site 1656 499 The DNA analysis conducted on bone samples from body 6 NN990 retrieved from the mass grave at the execution site in the Berishe Berisa Mountains when compared with DNA from blood samples given by family members of Lutfi Xhemshiti revealed a probability of relatedness greater than 99 9% 1657 The Chamber is therefore satisfied that one of the bodies body 6 - NN990 retrieved from the mass grave at the execution site in the Berishe Berisa Mountains was that of Lutfi Xhemshiti 500 The autopsy conducted by Dr Tarja Formisto on body NN990 on 11 September 2001 revealed injuries to the sternum and on the sternal ends of the ribs 1658 The forensic examination of the skeletal remains of NN990 subsequently performed by Dr Jose Pablo Baraybar has not identified the cause of death 1659 1652 1653 1654 1655 1656 1657 1658 1659 However Dr George Maat performed a further forensic See supra paras 439-440 L96 testified that he knew Lutfi Xhemshiti as “Luta” from Breg I Zi Crni Breg before the war T 2409 L10 T 2965-2966 L04 T 1197-1198 Exhibit P76 L96 T 2409 Exhibit P54 “Lutfi nga Carrnabregv” appears on the list of names which L96 gave of prisoners at the execution site Exhibit P108 Exhibit P112 p 9 of the report and p 6 of the addendum Exhibit P111 Exhibit P111 184 Case No type Case # type date examination and found that the victim NN990 had suffered a perimortem fracture to the sternum due to mechanical traumas 1660 501 On the basis of the above evidence the Chamber is satisfied that the body of Lutfi Xhemshiti was exhumed from the mass grave at the execution site in the Berishe Berisa Mountains and although the forensic evidence does not conclusively establish the precise cause of death the Chamber finds that at the time of his death Lutfi Xhemshiti had suffered mechanical traumas traumas involving such force as to fracture his sternum and ribs 1661 and which are generally consistent with traumas suffered by several other victims Further given the evidence of Lutfi Xhemshiti’s detention in the Llapushnik Lapusnik prison camp and of his presence under KLA escort of Shala and Murrizi at the execution site it is the Chamber’s finding that Lutfi Xhemshiti was murdered on 25 or 26 July 1998 in the Berishe Berisa Mountains together with the other victims with whom he was buried The Chamber cannot determine whether he died immediately from his injuries or died after a time having been left to die as a result of his injuries Even leaving aside the account of L96 regarding the execution of the prisoners the fact that Lutfi Xhemshiti was detained by the KLA at the time the injuries sustained by him and by the other victims who died on 25 or 26 July 1998 in that place leaves the Chamber satisfied and it finds that Lutfi Xhemshiti was killed by others and that the perpetrators namely the KLA escorts identified as Shala and Murrizi acted together and with an intent to kill him The Chamber is also satisfied that at the time he was killed Lutfi Xhemshiti was detained by the KLA and was not taking any active part in the hostilities The possibility which cannot be entirely discounted on the evidence that there was also a third KLA soldier involved in the shootings does not in the Chamber’s view affect these findings 502 By virtue of the foregoing and leaving aside for the present the question of the criminal responsibility of Fatmir Limaj and Haradin Bala the Chamber finds that the elements of the offence of murder Count 10 are established in relation to Lutfi Xhemshiti j Shyqyri Zymeri 503 The Chamber has already found that Shyqyri Zymeri was detained in the Llapushnik Lapusnik prison camp 1662 There is evidence before the Chamber that Shyqyri Zymeri was among the prisoners who remained behind in the Berishe Berisa Mountains under KLA escort after the first group was released L04 testified that “Shyqja from Godance” whom he identified by 1660 1661 1662 Exhibit P200 Exhibit P200 See supra para 444 185 Case No type Case # type date photograph as Shyqyri Zymeri 1663 and who had a broken leg at the time was one of the prisoners left behind in the Berishe Berisa Mountains when L04 was released 1664 L96 also identified Shyqyri Zymeri by photograph as one of the prisoners present at the execution site 1665 504 The DNA analysis conducted on bone samples from body 7 NN991 retrieved from the mass grave at the execution site in the Berishe Berisa Mountains when compared with DNA from blood samples given by family members of Shyqyri Zymeri revealed that the probability of relatedness was greater than 99 9% 1666 The Chamber is therefore satisfied that one of the bodies retrieved from the execution site body 7 - NN991 in the Berishe Berisa Mountains was that of Shyqyri Zymeri 505 The autopsy conducted by Dr Tarja Formisto on body NN991 on 11 September 2001 revealed numerous injuries to the mandibularis the tibia and the radius 1667 The forensic examination of the skeletal remains of NN991 subsequently performed by Dr Jose Pablo Baraybar has not identified the precise cause of death 1668 However in a further forensic examination Dr George Maat found that the victim NN991 had suffered multiple perimortem fractures including to the mandible ulna and radius due to mechanical traumas 1669 506 On the basis of the above evidence the Chamber is satisfied that the body of Shyqyri Zymeri was exhumed from the mass grave at the execution site in the Berishe Berisa Mountains and that Shyqyri Zymeri was killed at that location Even leaving aside the account of L96 regarding the execution of the prisoners the fact that Shyqyri Zymeri was detained by the KLA at the time the multiple injuries he sustained around the time of death and the number of other prisoners buried in the same grave who were killed at the same time in that location satisfies the Chamber that Shyqyri Zymeri was killed on 25 or 26 July 1998 at that site by others and that the perpetrators namely the KLA escorts identified as Shala and Murrizi acted together at the time and with an intent to kill him The Chamber is also satisfied that at the time he was killed Shyqyri Zymeri was detained by the KLA and was not taking any active part in the hostilities The possibility which cannot be entirely discounted on the evidence that there was also a third KLA soldier involved in the shootings does not in the Chamber’s view affect these findings 1663 1664 1665 1666 1667 1668 1669 L04 T 1199-1206 Exhibit P54 L04 T 1192-1195 1197-1198 “Shyqa” appears on the list of names L04 gave of prisoners who remained in the Berishe Berisa Mountains when he was released Exhibit P76 L96 T 2409 Exhibit P54 “Shyqeria nga Godanci” appears on the list of names L96 gave of the prisoners at the execution site Exhibit P108 Exhibit P112 p 10 of the report and p 7 of the addendum Exhibit P111 Exhibit P111 Exhibit P200 186 Case No type Case # type date 507 By virtue of the foregoing and leaving aside for the present the question of the criminal responsibility of Fatmir Limaj and Haradin Bala the Chamber finds that the elements of the offence of murder Count 10 are established in relation to Shyqyri Zymeri 187 Case No type Case # type date VI RESPONSIBILITY OF THE ACCUSED A Law on the forms of liability charged 508 It is alleged that the three Accused are responsible under Article 7 1 of the Statute for planning instigating ordering committing including through participation in a joint criminal enterprise or otherwise aiding and abetting the planning preparation or execution of the crimes charged in the Indictment 1670 The Accused Fatmir Limaj and Isak Musliu are also alleged to be criminally responsible pursuant to Article 7 3 of the Statute as superiors of the KLA members operating in the Llapushnik Lapusnik prison camp 1 Responsibility under Article 7 1 of the Statute a Committing 509 “Committing” a crime “covers physically perpetrating a crime or engendering a culpable omission in violation of criminal law” 1671 The Appeals Chamber has held that Article 7 1 “covers first and foremost the physical perpetration of a crime by the offender himself or the culpable omission of an act that was mandated by a rule of criminal law ”1672 The actus reus required for committing a crime is that the accused participated physically or otherwise directly in the material elements of a crime provided for in the Statute through positive acts or omissions 1673 whether individually or jointly with others The requisite mens rea is that the accused acted with an intent to commit the crime or with an awareness of the probability in the sense of the substantial likelihood that the crime would occur as a consequence of his conduct b Committing through participation in a joint criminal enterprise 510 Individual criminal responsibility arises under Article 7 1 of the Statute not only in respect of persons who perform the criminal act but also in certain circumstances in respect of those who in some way make it possible for the perpetrator physically to carry out that act 1674 When a number of persons are involved in a common plan aimed at the commission of a crime they can be convicted of participation in a joint criminal enterprise “JCE” in relation to that crime Coperpetration in the context of a joint criminal enterprise differs from aiding and abetting Where the aider and abettor only knows that his assistance is helping a single person to commit a single crime he is only liable for aiding and abetting that crime This is so even if the principal perpetrator is 1670 1671 1672 1673 Indictment para 6 Krsti Trial Judgement para 601 Tadi Appeals Judgement para 188 Kunara Trial Judgement para 390 Tadi Appeals Judgement para 188 Kordi Trial Judgement para 376 188 Case No type Case # type date part of a joint criminal enterprise involving the commission of further crimes Where however the accused knows that his assistance is supporting the crimes of a group of persons involved in a joint criminal enterprise and shares that intent then he may be found criminally responsible for all the crimes committed in furtherance of that common purpose as a co-perpetrator 1675 511 Three types of joint criminal enterprise have been identified in the jurisprudence of the Tribunal They all require as to the actus reus a plurality of persons the existence of a common plan design or purpose which amounts to or involves the commission of a crime provided for in the Statute and participation of the accused in the common design In the first type of joint criminal enterprise the accused intends to perpetrate a crime and this intent is shared by all co-perpetrators In the second type embracing the so-called “concentration camp” cases or systemic JCE the accused has knowledge of the nature of a system of repression in the enforcement of which he participates and the intent to further the common concerted design to ill-treat the inmates of a concentration camp 1676 In such cases the requisite intent may also be able to be inferred from proved knowledge of the crimes being perpetrated in the camp and continued participation in the functioning of the camp as well as from the position of authority held by an accused in the camp 1677 The third type concerns cases in which one of the participants commits a crime outside the common design The mens rea in such cases is twofold First the accused must have the intention to take part in and contribute to the common criminal purpose Second in order to be held responsible for crimes which were not part of the common criminal purpose but which were nevertheless a natural and foreseeable consequence of it the accused must also know that such a crime might be perpetrated by a member of the group and willingly takes the risk that the crime might occur by joining or continuing to participate in the enterprise 1678 The presence of the participant in the joint criminal enterprise at the time the crime is committed by the principal offender is not required 1679 512 The Appeals Chamber has said that responsibility for crimes committed beyond the common purpose of a JCE but which were “a natural and foreseeable consequence thereof” the third type of JCE arises only if the Prosecution proves that the accused had sufficient knowledge such that the additional crimes were a natural and foreseeable consequence to him The Appeals Chamber pointed out that the question whether the crimes committed outside the common purpose 1674 1675 1676 1677 1678 1679 Tadi Appeals Judgement para 192 Kvo ka Appeals Judgement para 90 Tadi Appeals Judgement paras 196 202-203 227-228 Kvo ka Appeals Judgement para 243 Tadi Appeals Judgement paras 204 227-228 Kvo ka Appeals Judgement para 83 Krnojelac Appeals Judgement para 81 189 Case No type Case # type date of the JCE were “a natural and foreseeable consequence thereof” must be assessed in relation to the knowledge of a particular accused 1680 c Planning 513 It has been said that “planning” implies that one or several persons plan or design the commission of a crime at both the preparatory and execution phases 1681 The actus reus of “planning” requires that one or more persons plan or design the criminal conduct constituting one or more crimes provided for in the Statute which are later perpetrated 1682 It is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct 1683 A person who plans an act or omission with an intent that the crime be committed or with an awareness of the substantial likelihood that a crime will be committed in the execution of that plan has the requisite mens rea for establishing responsibility under Article 7 1 of the Statute for planning 1684 d Instigating 514 In the jurisprudence of the Tribunal the term “instigating” has been defined to mean “prompting another to commit an offence ”1685 Both acts and omissions may constitute instigating which covers express and implied conduct 1686 A nexus between the instigation and the perpetration must be demonstrated 1687 but it need not be shown that the crime would not have occurred without the accused’s involvement 1688 The actus reus is satisfied if it is shown that the conduct of the accused was a factor substantially contributing to the perpetrator’s conduct 1689 The requisite mens rea for “instigating” is that the accused intended to provoke or induce the commission of the crime or was aware of the substantial likelihood that a crime would be committed in the execution of that instigation 1690 1680 1681 1682 1683 1684 1685 1686 1687 1688 1689 1690 Kvo ka Appeals Judgement para 86 Br anin Trial Judgement para 268 Krsti Trial Judgement para 601 Staki Trial Judgement para 443 Kordi Appeals Judgement para 26 citing Kordi Trial Judgement para 386 Kordi Appeals Judgement para 26 Kordi Appeals Judgement para 31 Krsti Trial Judgement para 601 Akayesu Trial Judgement para 482 Bla ki Trial Judgement para 280 Kordi Appeals Judgement para 27 Kordi Trial Judgement para 387 Br anin Trial Judgement para 269 Bla ki Trial Judgement para 280 Br anin Trial Judgement para 269 Bla ki Trial Judgement para 280 Kordi Appeals Judgement para 27 Kordi Appeals Judgement para 27 Kordi Appeals Judgement para 32 190 Case No type Case # type date e Ordering 515 The actus reus of “ordering” requires that a person in a position of authority instructs another person to commit an offence 1691 It is not necessary to demonstrate the existence of a formal superior-subordinate command structure or relationship between the orderer and the perpetrator it is sufficient that the orderer possesses the authority either de jure or de facto to order the commission of an offence or that his authority can be reasonably implied 1692 There is no requirement that the order be given in writing or in any particular form and the existence of the order may be proven through circumstantial evidence 1693 With regard to the mens rea the accused must have either intended to bring about the commission of the crime or have been aware of the substantial likelihood that the crime would be committed as a consequence of the execution or implementation of the order 1694 f Aiding and abetting 516 “Aiding and abetting” has been defined as the act of rendering practical assistance encouragement or moral support which has a substantial effect on the perpetration of a certain crime 1695 Strictly “aiding” and “abetting” are not synonymous 1696 “Aiding” involves the provision of assistance “abetting” need involve no more than encouraging or being sympathetic to the commission of a particular act 1697 These forms of liability have however been consistently considered together in the jurisprudence of the Tribunal 517 The actus reus of aiding and abetting is that the support encouragement or assistance of the aider and abettor has a substantial effect upon the perpetration of the crime 1698 There is no requirement of a causal relationship between the conduct of the aider or abettor and the commission of the crime or proof that such conduct was a condition precedent to the commission of the crime 1699 An omission may in the particular circumstances of a case constitute the actus reus of aiding and abetting 1700 Further the assistance may occur before during or after the principal crime 1691 1692 1693 1694 1695 1696 1697 1698 1699 1700 Kordi Appeals Judgement para 28 citing Kordi Trial Judgement para 388 Br anin Trial Judgement para 270 Prosecutor v Jean de Dieu Kamuhanda Case No ICTR-99-54A-A Judgement 19 September 2005 para 76 citing Kordi Trial Judgement para 388 Bla ki Trial Judgement para 281 Bla ki Appeals Judgement para 42 Kordi Appeals Judgement para 30 Br anin Trial Judgement para 270 Krsti Trial Judgement para 601 Aleksovski Appeals Judgement para 162 citing Furund ija Trial Judgement para 249 Kvo ka Trial Judgement para 254 citing Akayesu Trial Judgement para 484 Kvo ka Trial Judgement para 254 citing Akayesu Trial Judgement para 484 Bla ki Appeals Judgement para 48 Furund ija Trial Judgement para 249 Kunara Trial Judgement para 391 Bla ki Appeals Judgement para 48 Bla ki Appeals Judgement para 47 See also Krnojelac Trial Judgement para 88 Kunarac Trial Judgement para 391 191 Case No type Case # type date has been perpetrated 1701 While each case turns on its own facts mere presence at the scene of a crime will not usually constitute aiding or abetting However where the presence bestows legitimacy on or provides encouragement to the actual perpetrator that may be sufficient In a particular case encouragement may be established by an evident sympathetic or approving attitude to the commission of the relevant act For example the presence of a superior may operate as an encouragement or support in the relevant sense 1702 518 The mens rea required is knowledge that by his or her conduct the aider and abettor is assisting or facilitating the commission of the offence 1703 This awareness need not have been explicitly expressed It may of course be inferred from all relevant circumstances 1704 The aider and abettor need not share the mens rea of the perpetrator but he or she must be aware of the essential elements of the crime ultimately committed by the perpetrator 1705 and must be aware of the perpetrator’s state of mind 1706 This is not to say that the aider and abettor must be aware of the specific crime that will be committed by the perpetrator If the aider and abettor is aware that one of a number of crimes will probably be committed by the perpetrator and one of those crimes is in fact committed then he has intended to assist or facilitate the commission of that crime and is guilty as an aider and abettor 1707 2 Responsibility under Article 7 3 of the Statute 519 Article 7 3 of the Statute provides The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof The principle of individual criminal responsibility of superiors for failure to prevent or to punish crimes committed by subordinates is an established principle of international customary law 1708 applicable to both international and internal armed conflicts 1709 1701 1702 1703 1704 1705 1706 1707 1708 Br anin Trial Judgement para 271 Bla ki Appeals Judgement para 48 Krnojelac Trial Judgement para 88 Br anin Trial Judgement para 271 Furund ija Trial Judgement para 249 Tadi Appeals Judgement para 229 Bla ki Appeals Judgement para 49 Vasiljevi Appeals Judgement para 102 elebi i Trial Judgement para 328 Tadi Trial Judgement para 676 Aleksovski Appeals Judgement para 162 Krnojelac Trial Judgement para 90 “The aider and abettor must be aware of the essential elements of the crime committed by the principal offender including the principal offender’s mens rea However the aider and abettor need not share the mens rea of the principal offender ” Br anin Trial Judgement para 273 Aleksovski Appeals Judgement para 162 Bla ki Appeals Judgement para 50 citing Bla ki Trial Judgement para 287 Furund ija Trial Judgement para 246 Br anin Trial Judgement para 272 elebi i Appeals Judgement para 195 Strugar Trial Judgement para 357 192 Case No type Case # type date 520 It has been held that three elements need to be satisfied in order to invoke individual criminal responsibility under Article 7 3 i the existence of a superior-subordinate relationship ii the superior knew or had reason to know that the criminal act was about to be or had been committed and iii the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof 1710 a Superior-subordinate relationship 521 The superior-subordinate relationship lies in the very heart of the doctrine of a commander’s liability for the crimes committed by his subordinates It is the position of command over and the power to control the acts of the perpetrator which forms the legal basis for the superior’s duty to act and for his corollary liability for a failure to do so 1711 522 The existence of the position of command may arise from the formal or de jure status of a superior or from the existence of de facto powers of control It derives essentially from the “actual possession or non-possession of powers of control over the actions of subordinates ”1712 In determining the degree of control to be exercised by the superior over the subordinate the Appeals Chamber endorsed the effective control standard as the material ability to prevent or punish criminal conduct 1713 The existence of a superior-subordinate relationship does “not … import a requirement of direct or formal subordination” 1714 Likewise there is no requirement that the relationship between the superior and the subordinate be permanent in nature 1715 Further the Chamber recalls that “the test of effective control … implies that more than one person may be held responsible for the same crime committed by a subordinate ”1716 1709 1710 1711 1712 1713 1714 1715 1716 For application of the principle of command responsibility to internal armed conflicts see Prosecutor v Had ihasanovi et al Case No IT-01-47-AR72 Appeals Chamber Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility 16 July 2003 para 31 elebi i Trial Judgement para 346 See also Kordi Trial Judgement para 401 Bla ki Trial Judgement para 294 Kov ka Trial Judgement para 314 Strugar Trial Judgement para 358 Aleksovski Appeals Judgement para 76 Strugar Trial Judgement para 359 elebi i Trial Judgement para 370 Strugar Trial Judgement para 362 elebi i Appeals Judgement para 256 The Appeals Chamber has rejected the argument that a superior may be held criminally liable on the basis of his powers of influence as it held that “substantial influence as a means of control in any sense which falls short of possession of effective control over subordinates” i e possession of material ability to prevent or to punish has no standing of rule of customary law especially such that may trigger criminal liability See elebi i Appeals Judgement para 266 elebi i Appeals Judgement para 303 Strugar Trial Judgement para 362 Bla ki Trial Judgement para 303 referring to Aleksovski Trial Judgement para 106 see also Strugar Trial Judgement para 365 193 Case No type Case # type date b Mental element the superior knew or had reason to know 523 For a superior to be held responsible under Article 7 3 of the Statue for crimes committed by a subordinate it must be established that he knew or had reason to know that the subordinate was about to commit or had committed such crimes 524 While a superior’s actual knowledge that his subordinates were committing or were about to commit a crime cannot be presumed it may be established by circumstantial evidence 1717 including the number type and scope of illegal acts time during which the illegal acts occurred number and types of troops and logistics involved geographical location whether the occurrence of the acts is widespread tactical tempo of operations modus operandi of similar illegal acts officers and staff involved and location of the commander at the time 1718 525 In determining whether a superior “had reason to know” that his subordinates were committing or about to commit a crime it must be shown that specific information was in fact available to him which would have provided notice of offences committed or about to be committed by his subordinates 1719 The information must in fact be available to the superior who may not be held liable for failing to acquire such information in the first place 1720 However the information in fact available need not be such that by itself it was sufficient to compel the conclusion of the existence of such crimes 1721 It is sufficient that the superior be in possession of sufficient information even general in nature to be on notice of the likelihood of illegal acts by his subordinates i e so as to justify further inquiry in order to ascertain whether such acts were indeed being or about to be committed 1722 c Necessary and reasonable measures 526 The question of whether a superior has failed to take the necessary and reasonable measures to prevent the commission of a crime or punish the perpetrators thereof is connected to his possession of effective control A superior will be held responsible if he failed to take such measures that are within his material ability Whether the superior had explicit legal capacity to do so is immaterial provided that he had the material ability to act 1723 1717 1718 1719 1720 1721 1722 1723 elebi i Trial Judgement para 386 Strugar Trial Judgement para 368 elebi i Trial Judgement para 386 See also Kordi Trial Judgement para 427 Bla ki Trial Judgement para 307 Strugar Trial Judgement para 368 elebi i Trial Judgement para 393 Strugar Trial Judgement para 369 Bla ki Appeals Judgement paras 62-63 elebi i Appeals Judgement para 226 elebi i Trial Judgement para 393 Strugar Trial Judgement para 369 elebi i Trial Judgement para 393 Kordi Trial Judgement para 437 Strugar Trial Judgement para 370 elebi i Trial Judgement para 395 footnotes omitted See also Kordi Trial Judgement para 443 Strugar Trial Judgement para 372 194 Case No type Case # type date 527 Under Article 7 3 the superior has a duty both to prevent the commission of the offence and punish the perpetrators These are not alternative obligations 1724 The duty to prevent arises from the time a superior acquires knowledge or has reasons to know that a crime is being or is about to be committed while the duty to punish arises after the superior acquires knowledge of the commission of the crime 1725 knowledge A superior must act from the moment that he acquires such His obligations to prevent will not be met by simply waiting and punishing afterwards 1726 528 Whether a superior has discharged his duty to prevent the commission of a crime will depend on his material ability to intervene in a specific situation Factors which may be taken into account in making that determination include the superior’s failure to secure reports that military actions have been carried out in accordance with international law 1727 the failure to issue orders aiming at bringing the relevant practices into accord with the rules of war 1728 the failure to protest against or to criticize criminal action 1729 the failure to take disciplinary measures to prevent the commission of atrocities by the troops under the superior’s command 1730 and the failure to insist before a superior authority that immediate action be taken 1731 529 A superior’s duty to punish the perpetrators of a crime encompasses the obligation to conduct an effective investigation with a view to establishing the facts 1732 The obligation on the part of the superior is to take active steps to ensure that the perpetrators will be punished To that end the superior may exercise his own powers of sanction or if he lacks such powers report the perpetrators to the competent authorities 1733 B Findings 1 Responsibility of Fatmir Limaj a Was Fatmir Limaj identified at the Llapushnik Lapusnik prison camp 530 It is alleged in the Indictment that Fatmir Limaj aka Çeliku meaning “steel” directed the operation of the Llapushnik Lapusnik prison camp that he personally participated in the enforcement of the detention of prisoners their interrogation as well as brutal and inhumane 1724 1725 1726 1727 1728 1729 1730 1731 1732 Bla ki Appeals Judgement para 83 Bla ki Appeals Judgement para 83 Kordi Trial Judgement paras 445-446 Strugar Trial Judgement para 373 Strugar Trial Judgement para 374 Strugar Trial Judgement para 374 Strugar Trial Judgement para 374 Strugar Trial Judgement para 374 Strugar Trial Judgement para 374 Strugar Trial Judgement para 376 195 Case No type Case # type date treatment inflicted upon them It is further alleged that Fatmir Limaj planned instigated and ordered the murder of detainees at the prison camp and in the Berishe Berisa Mountains 1734 The Defence for Fatmir Limaj argues that the Accused Fatmir Limaj never knew of or participated in the establishment and organisation of such a prison camp 1735 The Chamber has heard the evidence from several Prosecution witnesses who have purported to identify Fatmir Limaj as a person whom they saw in the Llapushnik Lapusnik prison camp 531 Vojko Bakra and his son Ivan Bakra have been found to have been held in the Llapushnik Lapusnik prison camp for about a week in July 1998 1736 It is their evidence that in the course of their detention they encountered the “commander” of the prison camp on a number of occasions 532 Vojko Bakra testified that while he was detained with his son Ivan in the storage room 1737 a man wearing a camouflage uniform came to fetch Ivan The man was taller than the witness in his thirties and he was wearing a small beard and an officer’s satchel 1738 Later Vojko Bakra was also called out of the storage room and brought to a room on the ground floor of the main building where he saw his son Ivan and the same man talking and drinking tea The man told Ivan that the storage room was not a place for him 1739 From then on although Vojko Bakra was taken back to the storage room for a brief period both he and his son Ivan remained in a room upstairs in the house 1740 Vojko Bakra assumed that this man had “a superior position” as soldiers and guards were obeying him 1741 Vojko Bakra further testified that on a later occasion he and Ivan were taken to the room on the ground floor of the house where they witnessed four or five men being beaten On his evidence the man he had identified as the “commander” was present and told him that these men were traitors to their people 1742 The incident lasted around 45 minutes and afterwards Vojko and Ivan Bakra were taken back to the room upstairs 1743 It is the recollection of Vojko Bakra that in the course of this second encounter the “commander” told Vojko Bakra that he was a lawyer 1744 Vojko Bakra testified that he met the “commander” on a further occasion before his release when the “commander” asked him and his son Ivan to write a statement about 1733 1734 1735 1736 1737 1738 1739 1740 1741 1742 1743 1744 Kordi Trial Judgement para 446 Strugar Trial Judgement para 376 Indictment para 10 Defence Final Brief para 503 See supra para 279 Vojko Bakra described the room where he was detained as a “basement” but identified it as the storage room on Exhibit P5 T 1326-1329 Vojko Bakra T 1334-1335 Vojko Bakra T 1338 Vojko Bakra T 1338 Vojko Bakra T 1336 Vojko Bakra T 1341-1342 Vojko Bakra T 1342 Vojko Bakra T 1336 1342 196 Case No type Case # type date the conditions in the prison camp 1745 After he made the statement Vojko Bakra asked the “commander” to contact his mother-in-law and inform her that they would be released It is Vojko Bakra ’s evidence that the “commander” said he did so the next day 1746 which appears to suggest a third encounter In January 2002 in the course of an interview with CCIU investigators Vojko Bakra was shown a series of photographs One of the photographs was what the Chamber assesses to be a very recognisable photograph of Fatmir Limaj albeit clean-shaven rather than with the small beard the witness had described In respect of this photograph Vojko Bakra stated at the time “Number 2 looks familiar but I don’t know from where and I cannot connect him with this case ”1747 Number 2 was the photograph of Fatmir Limaj 533 Ivan Bakra the then 18 year old son of Vojko Bakra testified that upon arrival in the Llapushnik Lapusnik prison camp he and his father were taken into a room inside the house 1748 where they were interrogated by a man who appeared to be in charge 1749 The “commander” was around 35 years old about 180 to 185 cm tall of medium build with slightly longer hair which was partly grey and combed back he was clean shaven 1750 On Ivan Bakra ’s evidence the “commander” was sitting about half a metre from them during the interrogation and behaved in a very professional manner never indicating that he wanted to harm them The interrogation lasted about 10 to 15 minutes 1751 During that time Stamen Genov was being beaten in the presence of the “commander” who appeared to condone that treatment although he did not take part in it directly 1752 Ivan Bakra had a second conversation with the “commander” later on which took place in the room upstairs in that same house That second encounter lasted about 15 to 20 minutes 1753 The “commander” behaved in the same manner as previously and told them that they would be released1754 but that they would have to make a statement beforehand 1755 Sometime in the weeks following the events Ivan Bakra said that he and his father saw a picture on television of the “commander” in a marching column of KLA soldiers It is not clear whether what was shown on the television was a still picture of the march or a video 1756 It was his evidence that they 1745 1746 1747 1748 1749 1750 1751 1752 1753 1754 1755 1756 Vojko Bakra T 1343-1345 Vojko Bakra T 1345-1348 Agreed fact T 1370-1371 Exhibit DB1 photo spread A1 Ivan Bakra T 1416 1426 Ivan Bakra identified the house and the room in Exhibits P5 and P6 T 1426-1427 Ivan Bakra T 1428 Ivan Bakra testified that everyone saluted this man and stood to attention when he approached T 1430 Ivan Bakra T 1430 Ivan Bakra appeared later in his evidence to state that although the “commander” did not have facial hair he was not “freshly shaven” T 1572-1573 It is not clear from this line of questioning however whether this description is that of the “commander” as he was in the camp itself or on the photograph Ivan Bakra found on the internet Ivan Bakra T 1431 Ivan Bakra T 1431 Ivan Bakra T 1432-1433 Ivan Bakra T 1431-1432 Ivan Bakra T 1471-1474 Ivan Bakra T 1561-1562 197 Case No type Case # type date both recognised the “commander” of the prison camp 1757 In 1999 Ivan Bakra saw the same picture of the “commander” on the internet He identified the picture in court 1758 He did not however mention this fact to the Prosecution until a few days before his testimony 1759 even though it appears that he had accessed the website and seen the same photograph hundreds of times between 1999 and 2003 1760 In court Ivan Bakra further recognised the “commander” in a video of that same march as one of a column of KLA soldiers 1761 In this video Fatmir Limaj did appear in a marching column He was however bearded In cross-examination Ivan Bakra stated that he was never shown a photograph of the “commander” by the investigators when he was interviewed in January 2003 1762 In court he was shown a photo spread of eight persons which included what the Chamber assessed to be a very recognisable photograph of Fatmir Limaj clean-shaven as this witness had described the man he saw in the prison camp However Ivan Bakra stated that the “man is not on the photograph I mean the same person who is on the internet ”1763 534 The Chamber is quite satisfied that both Vojko and Ivan Bakra testified honestly There are circumstances however which can render the evidence of a particular witness unreliable even though that evidence was given in a perfectly honest fashion In this case in particular the events which both Ivan and Vojko Bakra went through at the camp were extremely traumatic They occurred some years ago In the intervening years Ivan Bakra and possible Vojko Bakra have been influenced by television and internet coverage in which it appears that Fatmir Limaj was depicted These considerations may well bear in the Chamber’s view upon the ability of either or both of them to reliably identify one or more of the Accused It is therefore necessary to look with particular scrutiny at their evidence in particular in so far as Ivan Bakra purports to identify Fatmir Limaj as the “commander” in the camp by reference to the picture of the marching column of KLA soldiers 535 In the view of the Chamber the evidence of Vojko and Ivan Bakra especially when considered together reveals a number of inconsistencies The effect of Vojko Bakra ’s evidence is essentially that the man he regarded at the time as the “commander” was the one who came to fetch his son Ivan from the storage room and whom he later saw on two occasions in the room on the ground floor of the house Ivan Bakra however identified the man who took him out of the storage room and with whom he was talking in the house as Shala whom he distinguishes from the 1757 1758 1759 1760 1761 1762 1763 Ivan Bakra T 1561-1563 Exhibit P80 Ivan Bakra T 1433-1436 1563-1564 1584 Ivan Bakra T 1433-1437 Ivan Bakra T 1563-1566 Exhibit P35 A still photograph was made of the man Ivan Bakra identified as Fatmir Limaj Exhibit P81 Ivan Bakra T 1437-1438 1568 Ivan Bakra T 1566 1573 Exhibit DL1 photo spread B1 Ivan Bakra T 1573-1575 198 Case No type Case # type date man he himself identifies as the “commander” 1764 The second encounter with the apparent “commander” which Vojko Bakra describes in his evidence is when he and his son witnessed the beating of several men in the room on the ground floor of the house in his recollection in the presence of the “commander” This incident is not mentioned by Ivan Bakra in his testimony The only account he gave of beatings in the presence of the “commander” relates to the time when he and his father first arrived in the prison camp and were being interrogated It appears to the Chamber that Vojko and Ivan Bakra are either referring to different “commanders” or have different recollections of the time and context in which their encounters with the “commander” occurred In these circumstances there would be in the view of the Chamber serious concerns in inferring from Vojko Bakra ’s evidence that the man he thought to be the “commander” the same man who came to fetch his son from the storage room was Fatmir Limaj This concern is naturally exacerbated by the fact that Vojko Bakra was unable to recognise Fatmir Limaj on the photo lineup which was shown to him during an interview with the CCIU investigators in January 2002 536 In its final submissions the Prosecution contends that Vojko Bakra identified the image of Fatmir Limaj while he was still in the Llapushnik Lapusnik prison camp 1765 The only support offered for this submission however is the report of notes of an interview which Vojko Bakra allegedly gave to the Serbian authorities on 8 July 1998 following his release 1766 Vojko Bakra is said to have explained that on one occasion during their detention he and his son Ivan saw a column of KLA soldiers on television and recognised at the head of this column the commander who had frequently come to the camp as well as several others 1767 However what the Prosecution relies on is what purports to be a record of notes taken by an unknown individual on behalf of the Serbian State Security Department Centre The notes purport to be based upon information provided by Vojko Bakra during an interview with Serbian authorities on 8 July 1998 Vojko Bakra was not questioned about this passage in the notes during his evidence The anonymous note taker has not given evidence They are not signed by Vojko Bakra Despite lengthy questioning on Vojko Bakra ’s recollection of the “commander” during his evidence no mention was made of him recognising anyone on television whilst still in detention Further as stated above Ivan Bakra testified that he had recognised the “commander” on television together with his father However he was specifically asked in court when this recognition took place and it was his evidence that this occurred in the weeks following his and his father’s release 1768 In these circumstances the Chamber is not able to attach any weight to the record of notes made by 1764 1765 1766 1767 1768 Ivan Bakra T 1458-1464 Prosecution Final Brief para 150 Exhibit P202 Exhibit P202 p 5 Ivan Bakra T 1561-1562 199 Case No type Case # type date someone on 8 July 1998 and is certainly unable to find that Vojko Bakra identified the image of Fatmir Limaj while he was still in the Llapushnik Lapusnik prison camp Further in the absence of direct evidence from Vojko Bakra confirming that in truth he did recognise the “commander” when he and his son watched television some time after their release from the prison camp the Chamber cannot be confident that this was a reliable identification by Vojko Bakra even if that was then the honest understanding of Ivan Bakra 537 Ivan Bakra testified that he met the man he identified as the “commander” on two separate occasions in the prison camp each of which lasted for ten to twenty minutes during which they appeared to have engaged in a private conversation This reasonably prolonged exposure time in such circumstances could well found a subsequent accurate identification of the “commander” 1769 The Chamber notes however that while Ivan Bakra stated that the “commander” was cleanshaven at the time of his detention in the Llapushnik Lapusnik prison camp the photograph on the internet from which he claims to have identified the “commander” is that of a man with a beard 1770 Furthermore the photograph on the internet is extremely small and in the Chamber’s view the features of the man appearing in it are not readily recognisable 1771 On the other hand when shown a clear photograph of Fatmir Limaj when clean-shaven which is how Ivan Bakra recalled the “commander” appeared to him in Llapushnik Lapusnik Ivan Bakra did not recognise the “commander” 1772 While the Chamber entirely accepts the honesty of both father and son Bakra it is conscious that the evidence of Vojko Bakra did not fully deal with a number of matters relevant to identification and that of the two Ivan Bakra appeared to have the clearer and more confident and reliable recollection of relevant issues Nevertheless for the reasons indicated the Chamber finds itself unable to be confident about the reliability of Ivan Bakra ’s purported identification of the Accused Fatmir Limaj 538 L06 was detained in the Chamber’s finding for several weeks in the storage room in the Llapushnik Lapusnik prison camp 1773 In the course of his evidence L06 stated that a man came to the door of the storage room one day and asked why he was there L06 gave an account of his situation and the man responded that he would look into the matter and warned L06 that if he was guilty he would be killed but if he was innocent he would be released 1774 L06 said that the same man came back a week later told L06 that he could go home and that those who had brought him 1769 1770 1771 1772 1773 1774 Professor Willem Wagenaar T 7157-7160 7163 Exhibit P80 Exhibit P80 Exhibit DL1 photo spread B1 See supra paras 270 279 L06 T 1014 1016 200 Case No type Case # type date here would suffer consequences 1775 L06 described the man who ordered his release as taller and younger than him 1776 the man did not have a beard and was wearing a KLA uniform 1777 L06 stated that he did not know this man at the time but that he subsequently recognised him on television possibly a year after the war 1778 On his evidence this is how he came to know that the man’s name was Fatmir Limaj 1779 However in a statement given in January 2002 to CCIU investigators L06 apparently indicated that he was told by one of the prisoners while he was at Llapushnik Lapusnik that the man was Fatmir Limaj 1780 Thus there is apparent inconsistency whether L06 found out at the time of his detention that the man was Fatmir Limaj or whether he saw Fatmir Limaj on television possibly a year after the events and thereby recognised him as the man who had ordered his release from detention L06 maintained in court that there might have been a translation mistake in the January 2002 statement and that he only heard of Fatmir Limaj’s name on television well after the events 1781 The Chamber further notes that L06 appears to have seen Fatmir Limaj a number of times on television in the intervening years between 1998 and the trial 1782 539 L06 testified that the man he later identified as Fatmir Limaj talked to both him and L10 on both occasions in Llapushnik Lapusnik 1783 L10 whom the Chamber has also found to have been detained in the storage room together with L06 1784 also gave evidence in court His evidence is essentially that “Commander Çeliku” came twice to the storage room and that on the second occasion he told L10 that he would be released 1785 This account of the encounters confirms an aspect of the evidence of L06 The description of “Commander Çeliku” by L10 however differs the man he purports to have seen was extremely tall about 200 cm wore a camouflage uniform and “a little beard not too grown ”1786 L10 further stated that he had heard the name Çeliku twice in Llapushnik Lapusnik However the association of that name with the man whom he met on these two occasions is not apparent from his evidence It might be that L10 made such association on the basis that he received a piece of paper confirming his release which he recalls was signed by “Commander Çeliku”1787 but this is not a factual finding which the Chamber is in a position to make because the piece of paper is not in evidence Further the existence of any such piece of 1775 1776 1777 1778 1779 1780 1781 1782 1783 1784 1785 1786 1787 L06 T 1014 L06 testified that he was born in 1951 T 970 His height namely 175 5 cm was recorded as an agreed fact T 5187-5188 L06 T 1016-1017 L06 T 1014-1015 1021-1022 L06 T 1021-1022 1058 L06 T 1058 L06 T 1054 1058 1102-1106 L06 T 1014-1015 1021-1022 L06 T 1073-1074 See supra paras 270 279 L10 T 2952-2953 L10 T 2952-2955 L10 T 2955-2957 2963 201 Case No type Case # type date paper was omitted from L10’s earlier statement about these events to the CCIU investigator in August 2001 and perhaps more importantly L10 did not mention anything about “Commander Çeliku” at that time 1788 On L10’s evidence it is only after the events although it is unclear when exactly that he came to know Commander Çeliku’s real name when he saw Fatmir Limaj on television and then felt that he recognised him as the man he had seen in Llapushnik Lapusnik 1789 L10 also had seen Fatmir Limaj on television a number of times in the intervening years between 1998 and the trial 1790 540 Both L06 and L10 identified the Accused Fatmir Limaj in court as the man they were describing at Llapushnik Lapusnik 1791 Elsewhere in this decision the Chamber has discussed the possibility of a mistaken identification of an accused person in a courtroom setting 1792 In addition with respect to both L06 and L10 it is apparent to the Chamber from their evidence that the identification of Fatmir Limaj by each witness in the courtroom may well have been albeit unconsciously influenced by the subsequent association each witness made between Fatmir Limaj appearing on television and the man they had seen in Llapushnik Lapusnik It is the reliability of the process by which L06 and L10 have come to subsequently recognise Fatmir Limaj on television as the man in Llapushnik Lapusnik which remains of concern to the Chamber The encounters in Llapushnik Lapusnik each lasted only a few minutes They occurred as L06 and L10 were sitting inside the storage room and the man alleged to be Fatmir Limaj was standing outside and speaking “through the door and the window” 1793 In these circumstances there is only limited scope for reliable observation The descriptions given by the two witnesses do not match L10 remembers a man with a beard and of a very characteristic height about 200 cm while L06 described that same man as not having a beard and simply stated that he was taller than him 1794 Yet despite these different recollections both witnesses considered that they have identified the same man at some later time on television Subsequently they identified him in court The circumstances in which both witnesses recognised Fatmir Limaj on television as the man they had seen in Llapushnik Lapusnik have not been explored by the Prosecution or the Defence There is no evidence before the Chamber relating to the nature of the television programmes which prompted this identification Of course it may well be that L06 and L10 were correct in their respective identifications of Fatmir Limaj on television as the man they met together in Llapushnik Lapusnik 1788 1789 1790 1791 1792 1793 1794 L10 T 2974-2980 3002 L10 T 2955-2957 3000-3004 L10 T 2955-2657 3001-3002 L06 identified Fatmir Limaj by the colour of his tie and his position in the courtroom in relation to the other Accused T 1023-1024 L10 T 2955-2957 See supra para 18 L10 T 2996-2997 The height of L06 has been agreed between the parties to be 175 5 cm T 5187-5188 202 Case No type Case # type date despite their different recollections of his visual appearance However in the circumstances described above this conclusion cannot be reached by the Chamber with confidence 541 L04 was in the Chamber’s finding detained in the cowshed in the Llapushnik Lapusnik prison camp from around the end of June until 25 or 26 July 1998 1795 It was his initial evidence that a soldier named Tamuli came to fetch him from the cowshed He told him that “Commander Çeliku” was there and took him to the house 1796 “Commander Çeliku” asked L04 who had brought him there and why to which L04 responded that he did not know 1797 “Commander Çeliku” then told Tamuli to take L04 back to the cowshed 1798 Still on L04’s evidence later on the same day “Commander Çeliku” came to the cowshed and asked for the prisoners’ names When L04’s turn came “Commander Çeliku” told him that he would be able to go home 1799 Despite this L04 remained in the Llapushnik Lapusnik prison camp for another two weeks 1800 542 The Defence for Fatmir Limaj stress that this account presents a number of inconsistencies with L04’s previous statements The first inconsistency relates to the occurrence of the encounter itself with “Commander Çeliku” It appears that when L04 was interviewed by a CCIU investigator Anargyros Kereakes in January 2002 he made no mention whatsoever of being taken to see a commander or more specifically “Commander Çeliku” 1801 L04 does not have an explanation for this omission other than that the interpreters might not have understood him 1802 A second discrepancy relates to the person who took him to “Commander Çeliku” In court L04 testified that that person was Tamuli1803 while in a second statement he gave in March 2002 L04 asserted that the man who took him to see “Commander Çeliku” was Murrizi 1804 When tested on this apparent inconsistency L04 testified that he made a mistake because he “was suffering from the traumas of the war ”1805 In the same statement L04 said that Shala was the person who first came to the cowshed and told him about the arrival of “Commander Çeliku” 1806 When prompted by the Defence L04 corrected his evidence in court that he had heard this from Tamuli and thereafter maintained it was Shala 1807 A third discrepancy concerns the time between L04’s conversation with “Commander Çeliku” and the subsequent visit of the commander to the cowshed 1795 1796 1797 1798 1799 1800 1801 1802 1803 1804 1805 1806 1807 See supra paras 270 279 L04 T 1182 L04 T 1183 L04 T 1183 L04 T 1183-1184 L04 T 1183-1184 L04 T 1209-1210 L04 T 1210 L04 T 1182 L04 T 1212 L04 T 1212 L04 T 1213 L04 T 1213 203 Case No type Case # type date during which L04’s release was ordered In his prior statement in March 2002 L04 stated that “Commander Çeliku” returned to the cowshed two days after the first encounter 1808 In court however L04 indicated that this all happened on the same day as the first encounter 1809 A fourth inconsistency relates to the nature of the exchange between L04 and “Commander Çeliku” in the course of the encounter L04 testified that he was asked by the commander why he had been brought to the Llapushnik Lapusnik prison camp In court L04 stated that his answer was that he did not know and that the meeting was limited to this extremely brief exchange 1810 In his second statement dated March 2002 however L04 gave a different account namely that he had given “Commander Çeliku” a detailed explanation of the reason which he thought was behind his arrest The explanation concerned an incident which occurred a year earlier and during which L04 and another individual had their tractors seized by two Serbian police officers as they were collecting wood illegally and the subsequent interaction between L04 and one of the police officers in order to retrieve their tractors 1811 L04 indicated in his statement that he believed that this incident was the reason for his detention in the Llapushnik Lapusnik prison camp 1812 543 It lies in the nature of criminal proceedings that there may be inconsistencies between the oral evidence of a witness and accounts given at previous times A witness might have been asked different questions at different times he might have forgotten or remembered certain details While the credibility of a witness is not automatically affected by the presence of inconsistencies in the various accounts they do call for careful scrutiny when determining the weight which ought to be attached to the witness’ evidence The nature of the subject matter of a discrepancy may be relevant to an assessment of its effect on the credibility of the witness Matters which are in the nature of mere incidental details of relatively little significance when they occurred for example may well not be recalled or recalled with precision years after the events Throughout his testimony L04 stressed how memorable this meeting with Commander Çeliku was for him as it led to his release being ordered 1813 Yet it would seem that he omitted altogether to mention this encounter when first interviewed about these events by a CCIU investigator in January 2002 L04 has made clear in his evidence before the Chamber that before the January 2002 interview he had seen Fatmir Limaj appearing on television many times and had by this means concluded that Fatmir Limaj was Commander Çeliku 1814 Thus his failure to mention the meeting when interviewed in January 2002 especially if by then he knew it was with the very well known 1808 1809 1810 1811 1812 1813 1814 L04 T 1217-1218 L04 T 1183-1184 1217-1218 L04 T 1183 L04 T 1216 L04 T 1216 L04 T 1209 1210 1212 L04 T 1218-1219 204 Case No type Case # type date political figure in Kosovo Fatmir Limaj remains unexplained Of course the questions asked of him during that interview may have diverted his attention from the meeting with Commander Çeliku but that is not an obvious explanation given the importance L04 appears to attach to the meeting Further even when prompted by the Defence L04 did not seem to recollect having given any explanation as he understood them about the reasons leading to his arrest whether at the time of the meeting with “Commander Çeliku” or when further interviewed by an investigator in March 2002 544 L04 also testified that the man he says was Commander Çeliku in the camp had a medium- size beard 1815 When interviewed by CCIU investigators in 2002 L04 identified Fatmir Limaj as the man he thought to be “Commander Çeliku” from a photograph 1816 However this photograph is not in evidence so that the Chamber is not in a position to assess either the quality of the photograph or whether it matches the oral description given of “Commander Çeliku” by L04 L04 was not able to recall whether the person he identified by a photograph during the interview in 2002 had a beard or not 1817 Given his numerous and quite frequent appearances on television and in the press after the war before 2002 Fatmir Limaj is likely to have been a familiar face to L04 by the time of the 2002 interview and remains so 1818 L04 stated himself that Fatmir Limaj’s face and name were well known after the war 1819 In these circumstances the Chamber is concerned whether this may or may not have had a bearing on L04’s subsequent identification of Fatmir Limaj in the course of the interview with investigators The Chamber cannot be certain either way Moreover there is no evidence to enable the Chamber to determine whether the nature of the television programmes in which Fatmir Limaj appeared suggested any connection with the present case a factor of potential significance to the issue of whether L04 could have been unconsciously influenced to associate Fatmir Limaj with the man he had identified as the commander in Llapushnik Lapusnik In particular the Chamber does not know whether Fatmir Limaj was identified by the name of Çeliku in one or more of the media programmes and whether or not he was featured with or without a beard or if so what type of beard That being so even though L04 may well have honestly and perhaps accurately identified Fatmir Limaj when he saw him on television as the man he had seen in Llapushnik Lapusnik the Chamber is not able to be confident about this on the evidence given at trial 545 L07 gave evidence in relation to the alleged presence of Fatmir Limaj in the Llapushnik Lapusnik prison camp He stated that upon his arrival in the camp he was taken to a 1815 1816 1817 1818 L04 T 1220-1222 L04 T 1184-1185 L04 T 1219-1220 1220-1222 Exhibits DL17 DL18 and DL19 205 Case No type Case # type date room where he saw Shukri Buja whom he personally knew and “Commander Çeliku” 1820 L07 had been told that he was being taken to “Commander Çeliku” by the soldiers and he already knew of “Commander Çeliku” at this time because he was appearing in the press 1821 On L07’s evidence Shukri Buja recognised L07 and asked Commander Çeliku to let him go 1822 after which Shukri Buja and Commander Çeliku both left the room Commander Çeliku returned five minutes later and summoned Shala one of the soldiers present to let L07 go home 1823 This encounter lasted about 15 minutes 1824 A day or two after the meeting Commander Çeliku came to the storage room with another commander and was surprised to see L07 there 1825 L07 was taken back to the room inside the house 1826 On the next day Commander Çeliku came to the house told L07 that he was free to go Commander Çeliku dictated and made L07 sign a statement that he would not reveal what he saw in the camp or he would be killed 1827 and the following morning L07 was released and left with his own car 1828 546 Shukri Buja gave a different account of these events to the Chamber He testified that when he heard from L07’s father that L07 had been arrested by Ymer Alushani aka Voglushi he went to Llapushnik Lapusnik to inquire about him Shukri Buja’s evidence is that he went to Voglushi’s house and asked whether L07 was there Voglushi responded in the affirmative and said that L07 had been arrested because addresses of Serbs had been found in his pocket which were thought to belong to Serbian inspectors Shukri Buja stated that he gave guarantees to Voglushi that L07’s family had no connections with the police and L07 was called out and released immediately although L07 insisted on leaving his car for the use of the KLA On Shukri Buja’s evidence Fatmir Limaj was not present on that occasion and the event took place in a one-storey house which suggests a different house from that in the Llapushnik Lapusnik prison camp 1829 There is evidence that Voglushi was a commander in the village of Llapushnik Lapusnik 1830 In his own evidence Fatmir Limaj denied having been involved in or having ordered the release of L07 By way of an 1819 1820 1821 1822 1823 1824 1825 1826 1827 1828 1829 1830 L04 T 1218-1219 L07 T 792 Exhibit P71 para 13 L07 T 794 L07 T 795 Exhibit P71 para 14 L07 T 795-796 Exhibit P71 para 15 L07 T 796 L07 T 834-836 Exhibit P71 para 25 L07 T 836-838 L07 T 840 L07 T 840-841 Shukri Buja T 4025-4032 Shukri Buja did not recognise the house in the Llapushnik Lapusnik prison camp as the house where he met Voglushi that day T 4144-4145 Exhibit P6 See infra para 712 206 Case No type Case # type date explanation of L07’s arrest Fatmir Limaj said it must have been one of the brief detentions which occurred frequently at that time 1831 547 The contradictions between these accounts are apparent even though it is difficult for the Chamber to assess their significance In reaching its earlier finding that L07 was in fact detained in the Llapushnik Lapusnik prison camp the Chamber considered the contrary evidence of Shukri Buja suggesting a detention in a different house in Llapushnik Lapusnik by commander Voglushi but did not accept it having regard to a body of other evidence 1832 The Chamber is not in a position to conclude whether the evidence of Shukri Buja is mistaken false or confused 1833 It is also possible that Shukri Buja’s evidence on this point was affected by his obvious loyalty to the KLA in general and to Fatmir Limaj in particular In these circumstances the Chamber is left with the question whether it can be satisfied that the man who was with Shukri Buja at the time L07’s release was ordered was in fact the person he refers to as “Commander Çeliku” despite the contrary evidence given by Shukri Buja 548 On L07’s evidence he was released in the presence of other prisoners among whom were two “Croats” 1834 There is no doubt in the Chamber’s mind based on the other evidence that the two “Croats” were Vojko and Ivan Bakra Although of Serbian ethnicity they had been residents of Croatia and the description L07 gave namely that of a father and a son 1835 as well as the room in the house in which L07 said they were detained all confirm this 1836 The Chamber notes that neither Vojko nor Ivan Bakra dealt with this episode in their evidence 549 L07 had never met Commander Çeliku at the time of his alleged encounter in the Llapushnik Lapusnik prison camp The evidence does not indicate that the man he met introduced himself as Commander Çeliku during the meeting L07’s recollection is that he had been told that he was being taken to Commander Çeliku and that he recognised Commander Çeliku immediately because he had seen him in the press at the time 1837 In this regard the Chamber notes that there is evidence before the Chamber that Fatmir Limaj was one of the two soldiers standing by the side of Jakup Krasniqi when he gave his first public statement in June 1998 from Klecke Klecka as spokesperson of the KLA 1838 Fatmir Limaj was also seen as one of a column of soldiers in a 1831 1832 1833 1834 1835 1836 1837 1838 Fatmir Limaj T 6336-6337 See supra paras 277-279 The house described by Shukri Buja was on his evidence used by soldiers There is evidence that this was also the case for the house in the Llapushnik Lapusnik prison camp see infra para 694 L07 T 839 L07 T 812-816 Vojko Bakra T 1338 L07 T 794 Fatmir Limaj T 5956 207 Case No type Case # type date funeral march on 16 June 1998 which was broadcast 1839 On these videos though Fatmir Limaj is not the sole or main focus of visual attention Finally Fatmir Limaj apparently gave an interview on 3 June 1998 to a journalist of the Tirana TV network but it would seem on the evidence that this interview was only broadcast by sound 1840 It is again from the media that L07 subsequently came to the conclusion that Commander Çeliku was Fatmir Limaj 1841 550 L07 further identified Fatmir Limaj in court as the man he saw in Llapushnik Lapusnik 1842 The Chamber discusses elsewhere the need for extreme caution in assessing an identification of an accused made in a courtroom because of the possibility of mistake due to the suggestive environment 1843 In addition in this particular case there is the added possibility that unconsciously L07 may have purported to recognise the Accused Fatmir Limaj because of his extensive public exposure on television and in newspapers especially following the events in Llapushnik Lapusnik Having given careful consideration to all of these factors the Chamber considers that while L07 was honest in his evidence despite the difficulties identified and while his identification might be correct the Chamber is unable to be satisfied that his identification of Fatmir Limaj as the person he knew in the Llapushnik Lapusnik prison camp as Commander Çeliku is reliable 551 The last witness whose evidence could directly associate the Accused Fatmir Limaj in the operation of the Llapushnik Lapusnik prison camp is L96 The Chamber has already found that L96 had been detained in the storage room in the Llapushnik Lapusnik prison camp for about a week in July 1998 1844 L96’s evidence is that he never saw Commander Çeliku in the Llapushnik Lapusnik prison camp 1845 However he testified that on his last day of detention as the prisoners were marched under escort to the nearby Berishe Berisa Mountains the prisoners and escorts reached a path in the forest where he saw a tractor carrying armed men 1846 It is the evidence of L96 that at this time Shala was close to L96 and L96 heard him say that “Commander Çeliku” was coming and that Shala would ask him what he should do with the prisoners 1847 Shala then ordered the prisoners to stop and went to talk to one of the men at the tractor who was wearing a uniform L96 understood from this he said that this man was the “commander” Shala had mentioned This man was quite young and had a beard of two or three weeks growth 1848 L96 was 1839 1840 1841 1842 1843 1844 1845 1846 1847 1848 Exhibit P35 Fatmir Limaj T 6299-6301 Exhibit P37 Fatmir Limaj T 6268 L07 T 805-807 860 L07 T 806-807 See supra para 18 See supra para 279 L96 T 2386 L96 T 2364 Exhibit P106 L96 T 2364 L96 T 2364-2365 208 Case No type Case # type date not in a position to hear the conversation between Shala and the “commander” 1849 Following the conversation Shala came back together with one of the men who had been accompanying the commander i e a third guard for the prisoners Shala ordered the prisoners to continue their march 1850 552 It is only much later at the end of 2000 or beginning of 2001 that L96 says he saw Fatmir Limaj on television for the first time L96’s evidence is that he then recognised “the man that he had seen on the way from Llapushnik Lapusnik to Berishe Berisa” and who was then said by Shala to be Commander Çeliku 1851 Subsequently L96 saw Fatmir Limaj he said in the media on many occasions 1852 In February 2002 when interviewed by CCIU investigators L96 identified a photograph of Fatmir Limaj on a photo spread shown to him as the commander he had seen on the path in the Berishe Berisa Mountains 1853 553 For a number of reasons the Chamber is left with strong reservations about the evidence of L96 concerning that encounter on the path in the Berishe Berisa Mountains with the man understood by L96 to be Commander Çeliku In statements L96 gave in August 1998 and August 2000 there is no mention of that encounter neither is the name of Çeliku referred to in this context 1854 The only explanation L96 gave in evidence for these omissions is that at the time he gave the statements he was focused on the individuals responsible for the killings in the Berishe Berisa Mountains and he “forgot” about Commander Çeliku 1855 If this was the case he did so despite his evidence that he believed from what he then heard and saw that it was this man identified by Shala as Commander Çeliku to whom Shala had turned during the encounter for orders about the fate of the prisoners These prisoners included L96 and a personal relation of his The Chamber also notes that this encounter in the Berishe Berisa Mountains appears not to be the first time L96 had heard the name of Commander Çeliku L96 testified to having been told prior to his detention that Commander Çeliku could release L96’s personal relation 1856 554 There were more than twenty prisoners in the group escorted by Shala and Murrizi to the Berishe Berisa Mountains on that day 25 or 26 July 1998 1857 A number of these prisoners gave evidence before the Chamber None of them gave evidence of Shala stopping to meet a man let 1849 1850 1851 1852 1853 1854 1855 1856 1857 L96 T 2365 2373 L96 T 2365 L96 T 2399-2400 L96 T 2456-2460 L96 T 2366-2367 2370-2371 Exhibit P104 L96 T 2416-2418 2437-2442 L96 T 2418 2440 L96 T 2269-2271 2455 See supra para 450 209 Case No type Case # type date alone to meet Commander Çeliku 1858 L06 did refer to a vehicle which passed by the column of prisoners On his evidence however it was driven by a civilian who asked Shala whether he should give a lift to one of the injured prisoners which Shala refused 1859 L10 testified that at one point during the march a tractor carrying soldiers passed by the column of prisoners but did not suggest in his evidence that the tractor stopped or that Shala interrupted the march or held a discussion with one of them 1860 He did however mention the presence of a third guard at a later time that day as discussed elsewhere 1861 Despite the number of potential witnesses in a position to offer some confirmation of L96’s evidence of the conversation between Shala and the person he said was Commander Çeliku there is no other evidence to support that account Also of relevance in this respect is the finding of the Chamber for reasons given earlier in this decision 1862 that it could not determine whether L96’s account of the presence at the execution site in the Berishe Berisa Mountains of a third KLA soldier who had been sent by the man L96 said was Çeliku in the course of that encounter of Shala with Çeliku was correct 555 It was for the first time in an interview L96 gave in August 2001 that L96 referred to the encounter involving Commander Çeliku in the Berishe Berisa Mountains 1863 This interview appears to have taken place after L96 says he had seen Fatmir Limaj on television While this need not affect the reliability of L96’s purported identification of a photograph of Fatmir Limaj in a subsequent interview the question thereby arises whether L96 may have been mistaken in his identification by virtue of his viewing of Fatmir Limaj on television This could have occurred quite unconsciously on the part of L96 The in-court identification of Fatmir Limaj by L96 as the man he saw during the journey to Berishe Berisa1864 is potentially affected by the same factor in addition to the well-known risk of mistaken identification of an accused when this occurs in a court setting which the Chamber has discussed elsewhere 556 Of further relevance in this context is the explanation L96 gave as to how he came to know that Çeliku was Fatmir Limaj L96 stated that sometime in October 1998 he talked on the phone to the other man L96 said also survived the execution in the Berishe Berisa Mountains Xheladin Ademaj 1865 On L96’s account the two men as well as L96’s uncle met in August 2000 and in the course of their conversation the other man told L96 that Commander Çeliku was Fatmir Limaj and 1858 1859 1860 1861 1862 1863 1864 1865 L04 T 1192-1195 L10 T 2960-2966 L12 testified that during the march he did not see anyone T 1818 L06 1025-1026 L06 T 1025-1026 L10 T 2962 See supra para 453 See supra para 453 L96 T 2416-2418 L96 T 2574 L96 T 2397 210 Case No type Case # type date that he could often be seen on television or in the press 1866 While it was put to L96 in crossexamination that the other man had signed a statement to the effect that no such meeting ever took place the other man has not given evidence and no statement of his is in evidence There is therefore no confirmation or refutation of L96’s evidence in this respect If the evidence of L96 as to this meeting is correct it would appear to provide further reason for caution about the reliability of L96’s identification of a photograph of Fatmir Limaj in 2002 as by virtue of what occurred at the meeting L96 may have been conditioned to expect to recognise on television the man he saw in the Berishe Berisa Mountains Having regard to all of these considerations as well as the important issues affecting the general credibility of L96 which are discussed elsewhere in this decision the Chamber finds itself unable to be satisfied that the identification of a photograph of Fatmir Limaj in 2002 or that the identification of Fatmir Limaj in court in this trial by L96 are reliable 557 As mentioned elsewhere in this Judgement Fatmir Limaj in his evidence denies any knowledge of a KLA prison camp at Llapushnik Lapusnik 1867 There is also the evidence of Fatmir Limaj that on 25 July 1998 he had suffered a sudden health attack during which he lost consciousness This occurred in Llapushnik Lapusnik and he awoke later to find himself in Klecke Klecka where he had been taken by others 1868 Hence he denies having been in the Berishe Berisa Mountains on 25 or 26 July 1998 whether on or off a tractor 1869 The effect of Fatmir Limaj’s evidence is that around midday on 26 July 1998 a soldier came to Klecke Klecka and told him that Llapushnik Lapusnik had fallen Fatmir Limaj’s immediate concern he said was that the Serbian forces would head towards Malisheve Malisevo where thousands of people had taken shelter so he drove there with his nephew Naser Sabit to warn the civilian population to flee to the Klecke Klecka valley 1870 Ferat Sopi confirmed in his evidence that on 25 July 1998 Fatmir Limaj came to the makeshift clinic in Llapushnik Lapusnik in a very sick condition and lost consciousness It is Ferat Sopi’s evidence that Fatmir Limaj had to be administered an IV drip 1871 The medical records of the makeshift clinic which are in evidence do not include any entry for the date of 25 July 1998 1872 They can therefore neither confirm nor contradict the evidence just discussed 1866 1867 1868 1869 1870 1871 1872 L96 T 2398-2399 Fatmir Limaj T 6002 6336 Fatmir Limaj T 5986-5987 6084 Fatmir Limaj T 5986-5987 Fatmir Limaj T 5987-5989 Ferat Sopi T 7053-7054 Exhibits P215 P216 and P217 The Chamber notes that the only entry which could have been made on 25 July 1998 also bears the date of 24 July 1998 Exhibit P217 211 Case No type Case # type date 558 L64 a former KLA member testified that he went to the prison camp in Llapushnik Lapusnik on several occasions at the time relevant to this case 1873 It is his evidence that although he saw Fatmir Limaj i e Çeliku on several occasions in the village of Llapushnik Lapusnik 1874 he never saw him in the prison camp 1875 L64 indicated however that on one occasion he saw a jeep outside the prison and inferred from what was said by others that it was Çeliku’s jeep 1876 Who suggested that to be the case and on what basis is unknown There is no other evidence bearing on this issue In the Chamber’s finding this evidence does not establish either that Çeliku or the Accused Fatmir Limaj was in the Llapushnik Lapusnik prison camp on that or any occasion 559 The Defence for Fatmir Limaj has suggested both in submission and in evidence that Fatmir Limaj’s character was thoroughly inconsistent with the allegations set forth in the Indictment Essentially the Defence for Fatmir Limaj submits that the metamorphosis of Fatmir Limaj from a responsible man into a “monster” for the sole time of three or four months would be quite extraordinary 1877 This would not be in the view of the Chamber a very telling consideration if there were satisfactory evidence to the contrary especially having regard to Fatmir Limaj’s manifest commitment to the achievement of the military and political objectives of the KLA 560 For reasons given above the Chamber is not able to accept any of the individual identifications made by these various witnesses of Fatmir Limaj to be a reliable identification on the basis of which the Chamber could find beyond reasonable doubt that Fatmir Limaj was the person they saw or knew as Çeliku in the Llapushnik Lapusnik prison camp or in the Berishe Berisa Mountains on 25 or 26 July 1998 561 The Chamber has also considered the combined effect of these several identifications to determine whether they or some of them in combination displace the risks of mistake in the individual identifications so as to establish beyond reasonable doubt that Fatmir Limaj was that person While accepting that a multiplicity of identifications by a variety of persons at different times and in different circumstances may in a particular case be enough to negate the risk of honest mistake present in respect of each separate identification when it is considered separately that is neither a common nor a simple exercise In the present case the difficulties stipulated with respect to a number of the identifications and the nature of the risk of mistake for each respective identification are of such significance in the Chamber’s considered view that notwithstanding the 1873 1874 1875 1876 1877 L64 T 4444 L64 T 4356-4357 4363 4395-4396 L64 T 4465-4466 L64 T 4465-4466 Closing Arguments T 7430-7431 212 Case No type Case # type date strong possibility apparent on the evidence it is on final analysis not able to be satisfied beyond reasonable doubt that Fatmir Limaj is identified to be the person referred to in their evidence by those persons or any of them 562 Indeed rather than strengthening an identification of the man purported to be Commander Çeliku the combined effect of the evidence serves to highlight the extent of the uncertainties and inconsistencies prevalent in the body of evidence relevant to this issue The majority of the witnesses’ physical encounters with the “commander” from which the identifications have been made were limited in number and short in duration It is significant that the two witnesses who potentially had the most extensive contact with the “commander” Vojko and Ivan Bakra gave inconsistent physical descriptions of the person they saw in Llapushnik Lapusnik prison camp and could not positively identify the “commander” from respective photo spreads When all the separate physical descriptions provided by the witnesses are considered cumulatively instead of the emergence of any striking similarities variations in respect of the “commander’s” height clothes and presence of or lack of a beard are arresting inconsistencies Specifically descriptions of the “commander’s” face range from clean shaven to the presence of a small beard a medium sized beard and a beard of two or three week’s growth Therefore rather than reducing the risk of mistake evident in the individual identifications their comparison leads to further uncertainty 563 The Chamber would mention in particular that a significant factor in the Chamber’s consideration of this critical issue is the extent to which by virtue of his active role in politics in Kosovo since the fighting film showing Limaj has appeared on television and photographs of him have appeared in newspapers In the Chamber’s assessment this fairly constant exposure of images of Fatmir Limaj in the media has given rise to a clearly recognisable risk that a number of the witnesses in this trial may have been unconsciously influenced by that degree of exposure to associate the media images with the person being remembered by the witness from Llapushnik Lapusnik or the Berishe Berisa Mountains in mid 1998 Because of that risk much care was necessary with the process of subsequent identification care that has not always been evident in course of interviews by different agencies over the years Further particular care is called for on the part of the Chamber in assessing whether having regard to that and the other known risks of mistake with the various identifications discussed earlier and in light of all the other relevant evidence the Chamber is satisfied beyond reasonable doubt that Fatmir Limaj has been shown to have had any role in the events in the KLA prison camp at Llapushnik Lapusnik or in the events concerning prisoners in the Berishe Berisa Mountains on 25 or 26 July 1998 For the reasons indicated the Chamber finds that in this critical respect the evidence falls short of establishing beyond reasonable doubt the role of Fatmir Limaj in or with respect to any of the offences charged 213 Case No type Case # type date 564 In the absence of a proven identification of Fatmir Limaj as being present in the Llapushnik Lapusnik prison camp the only evidence relied on by the Prosecution to associate Fatmir Limaj with the operation of the camp is a document found in the Accused’s apartment by OTP investigators in the course of a search on 19 February 2003 1878 On its face this document appears to be an unsigned record of notes made by an individual identified only as Naim sometime in November 1998 It contains information which seems to relate to the movements of suspected Kosovo Albanian collaborators and Serbian civilians It includes the name of one of the victims listed in the Indictment “Lutfi Xhemshiti is it possible his wife and four children sic ” 1879 Fatmir Limaj’s evidence is that he has no knowledge of this document Fatmir Limaj’s explanation as to how this document came to be in his apartment is that it must have been part of a number of documents from the Ministry of Defence which was located across the road from the apartment and of which Fatmir Limaj was the spokesperson after the war and which had been temporarily stored in his apartment 1880 Regardless of the truthfulness of this explanation the Chamber is not persuaded that this document establishes an association between the Accused and the fate of that particular victim The mere mention of the name of that victim in a document signed by a third party in a context which remains unknown and at a time some months after the alleged murder of that victim is not a sufficient basis to establish any such association 565 By virtue of the above the Chamber finds that all allegations that Fatmir Limaj personally participated in the operation of the Llapushnik Lapusnik prison camp fall away b Did Fatmir Limaj hold a position of command and control over the KLA soldiers in the Llapushnik Lapusnik prison camp 566 The Indictment alleges that the criminal liability of Fatmir Limaj also arises out of his position of a superior pursuant to Article 7 3 of the Statute It is alleged that in this capacity Fatmir Limaj exercised both de jure and de facto command and control over KLA members operating the Llapushnik Lapusnik prison camp and that he had the authority to discipline and punish those subordinates 1881 567 In this regard the Prosecution has presented evidence with a view to establish that Fatmir Limaj was the commander of a large zone or region which included the village of Llapushnik Lapusnik although based in Klecke Klecka A corollary allegation by the Prosecution is that as such Fatmir Limaj was also the overall commander of the Llapushnik Lapusnik prison 1878 1879 1880 1881 Ole Lehtinen T 518-522 Exhibit P30 p 1 Fatmir Limaj T 6338-6339 Indictment paras 14-16 214 Case No type Case # type date camp The Defence for Fatmir Limaj disputes both these assertions and submits that at the time relevant to this Indictment Fatmir Limaj was merely leading a unit in Klecke Klecka known as Çeliku 1 568 The issue whether Fatmir Limaj was exercising command in the Llapushnik Lapusnik prison camp is to be approached in the context that in 1998 there was a gradual emergence of a structure within the KLA a structure which took progressive forms and evolved differently in various areas By virtue of this the state of affairs at any one particular time was often somewhat unclear and differed from place to place The Chamber has discussed these matters in detail earlier in this decision 1882 With respect to the role of Fatmir Limaj in particular it is not disputed by his Defence that at some time he commanded at least one KLA unit in Klecke Klecka that not earlier than August 1998 and perhaps as late as September 1998 he became the commander of the 121st Brigade also from Klecke Klecka and that in November 1998 he became a member of the KLA General Staff The issue before the Chamber however is whether it has been established by the Prosecution that between May and July 1998 Fatmir Limaj was a commander of a zone or region which extended beyond Klecke Klecka and included at least the southern part of the Llapushnik Lapusnik village where the prison camp was located The evidence relevant to this is often unclear it varies in very significant respects from witness to witness and is at times imprecise as to time The notion of “commander” itself may have been understood loosely by some KLA personnel at the time as some purport to have used the term merely as a mark of respect or to acknowledge influence 1883 In the case of other witnesses the issue arises whether their earlier references to Çeliku or Fatmir Limaj as commander were grounded in reliable knowledge or merely in rumour or their “understanding” Evidence the Prosecution apparently anticipated from two of its witnesses two former KLA members Shukri Buja and Ramadan Behluli seems to have been the substantive basis of the Prosecution case as to the position of Fatmir Limaj as commander Each of these two witnesses however said in their oral evidence before the Chamber that on reflection what they had said earlier in their respective interviews with the OTP was mistaken in material respects In evidence each of these witnesses placed events relevant to the command of Fatmir Limaj later in time than the apparent effect of their earlier statements in each case later than the time material to the Indictment The circumstances and the nature of their evidence suggested the possibility that this partial disavowal was the result of what could be perceived as a sense of loyalty towards the KLA in general and Fatmir Limaj in particular on the part of Shukri Buja and Ramadan Behluli The effect was to remove the foundation of the Prosecution case in this respect The Prosecution in essence was forced to submit that the Chamber should disbelieve the evidence 1882 1883 See supra paras 53-65 See L95 T 2610 2612 2614 215 Case No type Case # type date given in court by these two witnesses and instead accept the truth of and make factual findings on the basis of the earlier interviews with the OTP despite their express disavowal For reasons dealt with by the Chamber in a decision in the course of the trial 1884 in the particular circumstances the contrary accounts given by these two witnesses provided a basis which justified the admission as substantive evidence of the accounts each had given to the OTP on previous occasions Nevertheless it remains a significant consideration that in evidence each of the two witnesses expressly disavowed the relevant passages in the earlier interviews on which the Prosecution seeks to rely In the circumstances for reasons detailed later 1885 the Chamber is not able to be so convinced of the truth and reliability of the earlier statements as to make findings contrary to the oral evidence of each of the two witnesses At least on this issue the evidence of Shukri Buja and Ramadan Behluli is in effect neutralised 569 The evidence of L64 is the only evidence before the Chamber which if accepted would directly suggest that Fatmir Limaj was exercising command in Llapushnik Lapusnik L64 testified before the Chamber that sometime around mid May 1998 Çeliku came to the Llapushnik Lapusnik village On L64’s evidence the soldiers were lined up and Çeliku gave a speech Çeliku L64 said introduced himself as the person responsible for the area and announced that Qerqizi would be the person responsible for the fighting position in Llapushnik Lapusnik 1886 The effect of L64’s evidence is essentially that in his perception Çeliku was exercising functions of command L64 testified that Çeliku came a number of times to Llapushnik Lapusnik although the exact number is a subject of numerous inconsistencies between the witness’ oral evidence and his previous statements 1887 In particular L64 said that Çeliku was present there at two oath ceremonies which L64 attended 1888 Further it was L64’s evidence that Qerqiz regularly reported to Çeliku about the situation in Llapushnik Lapusnik 1889 L64 stated that on 25 July 1998 for instance Qerqiz and Ymer Alushani aka Voglushi went to Klecke Klecka where it is accepted by the Defence that Fatmir Limaj was in command of a unit for reinforcements and returned with a cannon 1890 This could suggest that assistance was coordinated from Klecke Klecka L64 also gave an account of being summoned to Klecke Klecka to hand over his weapon following an operation to collect weapons undertaken in Lladroc Ladrovac without Çeliku’s knowledge 1891 L64 stated that he was 1884 1885 1886 1887 1888 1889 1890 1891 Decision on the Prosecution’s Motion to Admit Prior Statements as Substantive Evidence 25 April 2005 See infra paras 581-582 586 L64 T 4356-4357 In a statement L64 gave in May 2003 he stated that Çeliku came to Llapushnik Lapusnik three or four times during the relevant period T 4697 In a further statement dated June 2003 L64 stated that Çeliku came between 10 and 15 times although the witness only saw him 7 or 8 times personally T 4899 In court L64 testified that he saw Çeliku about 10 times in Llapushnik Lapusnik between May and July 1998 T 4395 L64 T 4420-4421 L64 T 4398 L64 T 4399 L64 T 4400-4402 216 Case No type Case # type date told by Qerqiz about the summons but that he refused to go to Klecke Klecka 1892 On his account however other KLA soldiers from Llapushnik Lapusnik who took part in this operation in Lladroc Ladrovac told him that they had been disarmed by Çeliku for 15 days 1893 When it was put to L64 by the Defence in cross-examination that L64 had in fact been disarmed by Çeliku but that this was because it had been discovered that he had been intending to leave Llapushnik Lapusnik to murder someone L64 acknowledged that indeed he was part of a plan to murder one or possibly two individuals from his village 1894 In the Chamber’s view the evidence about this episode left serious doubt about the reliability of L64’s evidence In any event L64’s evidence in relation to this incident would tend to indicate that Çeliku’s material ability to discipline “subordinates” was in fact limited and not consistent with that expected of a commander 570 In court L64 identified a diagram which he had drawn depicting roughly the organisation of the KLA in the geographic area relevant to this case 1895 L64 confirmed that the various units identified on the diagram which included those of Llapushnik Lapusnik and Kroimire Krajmirovce were all under the command of Klecke Klecka and Fatmir Limaj 1896 However it became clear to the Chamber in the course of his cross-examination that L64’s evidence as to this “command” of Fatmir Limaj was based largely on no more than hearsay and rumours and that he had no reliable knowledge of the regional structure of the KLA at the time 1897 571 A notebook or diary of L64 is also in evidence 1898 This notebook appears to include a short summary of the witness’ childhood and life followed by more specific entries dated May and July 1998 as well as throughout 1999 However its evidential utility is problematic A number of entries do not mention the year in which they are supposed to have been recorded Other entries appear misplaced in time 1899 L64 explained in court that the notes in the diary were not contemporaneous rather they were a later transcription of other notes made during the war 1900 It is striking that the diary does not include a complete record of events in Llapushnik Lapusnik from May to July 1998 It does however refer to a couple of incidents of potential relevance In particular L64 recounts how sometime at the end of July 1998 he was told by Qerqizi that by Çeliku’s order one of his soldiers was appointed commander of L64’s position and L64 was to act as his deputy 1901 1892 1893 1894 1895 1896 1897 1898 1899 1900 1901 L64 described his frustration with this decision which he saw to be an L64 T 4402 L64 T 4401 L64 T 4839-4840 4842-4843 4867-4869 Exhibit P173 L64 T 4530-4532 L64 T 4707-4712 Exhibit P169 L64 T 4416 L64 T 4365-4366 T 4699-4705 Exhibit P169 p 14 L64 T 4414-4416 217 Case No type Case # type date appointment purely on the basis a family connection with Fatmir Limaj His frustration continues today The entry concerning this episode in the diary is not specifically dated in July 1998 It is apparent on the witness’ own admission that it was not recorded contemporaneously and that the witness found it “impossible to put the events in order” 1902 Other events which could be considered as memorable are not recorded in the diary For instance there is no mention in May 1998 of any speech given by Çeliku in the Llapushnik Lapusnik village in which he announced that he was responsible for the area Having regard to these circumstances and in light of the general reservations which the Chamber has concerning this witness which are discussed elsewhere 1903 the Chamber is not persuaded that it can treat this evidence of L64 as reliable 572 Reliance is further placed by the Prosecution on evidence which in its submission goes to prove that Fatmir Limaj was in command of a larger area around Klecke Klecka including Kroimire Krajmirovce and Llapushnik Lapusnik To that end the Prosecution first relies on the evidence of Ramiz Qeriqi aka Commander Luan Ramiz Qeriqi testified before the Chamber that he returned to Kosovo at the end of March 1998 and received instructions from the general commander of the KLA Azem Syla to go to Likofc Likovac and meet with Rexhep Selimi 1904 On Ramiz Qeriqi’s evidence he brought a letter to Rexhep Selimi stating where he was supposed to go 1905 Ramiz Qeriqi stated that after a week in Likofc Likovac he went to Klecke Klecka for a couple of days where he met Çeliku and Sadik Shala 1906 There is no suggestion in Ramiz Qeriqi’s evidence that he received instructions from Çeliku at the time Ramiz Qeriqi then proceeded to Kroimire Krajmirovce his birthplace He described his tasks as follows “I went by myself simply to organise things to call my friends from the past and I was told – I had the message with me to pass to them so that we all mobilise and stop the Serbian forces from penetrating in villages in that area and stop them maltreating the population ”1907 Ramiz Qeriqi testified that in May 1998 he was the commander in Kroimire Krajmirovce and his soldiers were building positions and digging trenches in various points including Carraleve Crnoljevo Zborc Zborce Fushtice Fustica and Blinaje Lipovica 1908 At the end of May 1998 however Shukri Buja became the commander in Kroimire Krajmirovce and Ramiz Qeriqi acted as his deputy 1909 A material aspect of Ramiz Qeriqi’s evidence is that he knew he said that there was a higher command above him and Shukri Buja He described an “organisation line” from Likofc Likovac to Klecke Klecka to Kroimire Krajmirovce It is his evidence that Fatmir Limaj was the commander in Klecke Klecka 1902 1903 1904 1905 1906 1907 1908 L64 T 4416 See supra para 28 Ramiz Qeriqi T 3561-3563 Ramiz Qeriqi T 3563 Ramiz Qeriqi T 3563-3565 Ramiz Qeriqi T 3565 Ramiz Qeriqi T 3575 218 Case No type Case # type date that Rexhep Selimi was the commander in Likofc Likovac and that the general commander of the KLA was Azem Syla 1910 It is apparent from the evidence that as of mid August 1998 Ramiz Qeriqi became the commander of the Ruzhdi Salihaj Battalion within the 121st Brigade 1911 and as such reported to Fatmir Limaj who by then was the commander of the 121st Brigade 1912 There are however a number of uncertainties in Ramiz Qeriqi’s evidence as to the position before mid August 1998 In this respect Ramiz Qeriqi testified that between May and July 1998 he only very rarely went to Klecke Klecka and was not taking any orders from Fatmir Limaj This he explains was because he was no longer the commander in Kroimire Krajmirovce 1913 Shukri Buja was Ramiz Qeriqi was reporting to and taking orders from Shukri Buja 1914 When asked in examination-in-chief who Shukri Buja got his orders from Ramiz Qeriqi answered plainly “This I don't know You might ask Shukri about this ”1915 This is an answer which he maintained when cross-examined saying “How can I speak on his behalf I think he can tell you better than me because I informed him – I reported to him about the positions about the soldiers And probably he had to report this to someone else ”1916 573 In the Prosecution’s submission the area drawn by the witness on Exhibit P154 which includes Llapushnik Lapusnik was the area under the command of Klecke Klecka that is it suggests of Fatmir Limaj from May 1998 onwards 1917 Ramiz Qeriqi’s own description of the drawing however suggests some degree of confusion as to the time period on which he was relying for his memory Q What does that line represent A This represents the zone -- part of the zone where I served That is it represents the four battalions that were in Klecke Q And – A Under Klecke Q And is this the zone as it existed at the time that we've just been talking about May June 1998 A This zone existed even before that time but my battalion was not organised in the way that I have drawn it here Q And at the time -- at the time that we're talking about or even earlier as you’ve said was this zone under the command of Klecka A It was under the command of Klecka but when I drew it it was as a battalion and I led that battalion 1918 1909 1910 1911 1912 1913 1914 1915 1916 1917 Ramiz Qeriqi T 3578 Ramiz Qeriqi T 3579 Exhibit P155 Ramiz Qeriqi T 3593 Fatmir Limaj T 6089 Ramiz Qeriqi T 3593-3595 Ramiz Qeriqi testified that as of his appointment as commander of the Ruzhdi Salihaj Battalion on 16 August 1998 he reported in writing to Fatmir Limaj and meetings would be held every week T 3711 see also Fatmir Limaj T 6013 Ramiz Qeriqi T 3579-3580 3711 Ramiz Qeriqi T 3711 Ramiz Qeriqi T 3582 Ramiz Qeriqi T 3711-3712 Closing Arguments T 7256 219 Case No type Case # type date This was not further clarified whether in examination-in-chief or in cross-examination While a literal interpretation of one answer of Ramiz Qeriqi would suggest that the zone he drew on Exhibit P154 was under the command of Klecke Klecka prior to the establishment of his battalion i e before mid August 1998 the general effect of his evidence gave the Chamber the impression that he linked the exercise of that command to the creation of the battalions His immediate and spontaneous description in evidence was that the zone he drew represented the “four battalions … in Klecke Klecka” This manifestly relates to a period subsequent to that relevant to this Indictment 574 Further reliance is placed by the Prosecution on Ramiz Qeriqi’s evidence that sometime in June 1998 while he was in Klecke Klecka he received instructions from Fatmir Limaj to go to assist in the fighting in Ratkoc Ratkovac 1919 Ramiz Qeriqi’s evidence on this point is indeed that Fatmir Limaj was the one issuing instructions in Klecke Klecka 1920 The further step which the Prosecution attempts to make however that this evidence shows that Fatmir Limaj was in command over the larger area around Klecke Klecka including Kroimire Krajmirovce1921 and Llapushnik Lapusnik is not supported by his evidence Ramiz Qeriqi qualified his evidence that all instructions coming from Klecke Klecka were coming from Fatmir Limaj by adding that the same applied to him in Kroimire Krajmirovce and to others in other places 1922 In the view of the Chamber therefore this evidence does not necessarily indicate more than that Fatmir Limaj was the commander in Klecke Klecka and in that capacity he instructed Ramiz Qeriqi to assist in Ratkoc Ratkovac 575 Finally the Prosecution relies on Ramiz Qeriqi’s evidence that Fatmir Limaj was in charge of three units involved in the fighting in Llapushnik Lapusnik on 9 May 1998 1923 Ramiz Qeriqi testified that he was in Klecke Klecka that day and that he and others went to Llapushnik Lapusnik to assist in the fighting because they had heard the shooting 1918 1919 1920 1921 1922 1923 Q Who else went to Lapusnik if anybody A We were three groups that left from Klecke Each group had five persons Q Were there persons in charge of each group A One group was chaired by me one by Topi and one by Çeliku Q Was anybody in charge of all three groups Ramiz Qeriqi T 3581 Prosecution Final Brief para 28 Ramiz Qeriqi T 3574-3575 Prosecution Final Brief para 28 Ramiz Qeriqi T 3575 3589 Prosecution Final Brief para 103 220 Case No type Case # type date A It was not that there was some person in charge In Klecke there was Fatmir Çeliku who was in higher position who was in charge Q And with respect to the three groups that you said travelled to Lapusnik from Klecka was anybody in charge of those three groups at that time Just for the fighting in Lapusnik A When we went to Lapusnik Fatmir went with the first group Then Topi and myself went with our respective groups Topi had a radio transmitter Fatmir didn't We came later maybe 20 minutes or so later Q But my question is Mr Qeriqi Was there any one person who was in charge of the three groups who travelled from Klecka to Lapusnik A Fatmir was in charge in Klecka not myself neither Topi Q So you're saying that he was in charge of the three groups A Yes because he was responsible for the people who were in Klecke 1924 While the above evidence does support a finding that Fatmir Limaj was the commander in Klecke Klecka the further implication which the Prosecution wishes to make that Fatmir Limaj was thereby or also the commander of all KLA forces in Llapushnik Lapusnik appears to be beyond the scope of this evidence Approached in the most favourable light it could at the most go to proof that Fatmir Limaj was in charge of the three groups of soldiers from Klecke Klecka who fought in Llapushnik Lapusnik on 9 May 1998 Later in his evidence Ramiz Qeriqi further testified that the soldiers who went from Klecke Klecka to Llapushnik Lapusnik that day were not ordered to do so but did so on a strictly voluntary basis 1925 which detracts from any inference that Fatmir Limaj was actually in command of the three groups assisting in Llapushnik Lapusnik on that day 576 The Defence for Fatmir Limaj further points to the evidence of several witnesses that Ramiz Qeriqi aka Luan was a “central figure in the organisation and execution of kidnappings” in Kroimire Krajmirovce 1926 In the Chamber’s appreciation Ramiz Qeriqi was attempting in the course of his evidence to negate or minimise his own involvement in the kidnappings of civilians during the spring and summer 1998 His evidence therefore must be approached with caution The Prosecution submits however that Ramiz Qeriqi had no reason to mislead the Chamber when it comes to the organisation of the KLA or the role of Fatmir Limaj However his description of a structure and his placing of individuals as commanders in that structure at the time could well be an aspect of his apparent attempts to minimise his own role Having regard to these several considerations the Chamber is not persuaded that it can be satisfied from the evidence of Ramiz 1924 1925 1926 Ramiz Qeriqi T 3568-3569 Ramiz Qeriqi T 3658 Defence Final Brief paras 144-146 221 Case No type Case # type date Qeriqi that Fatmir Limaj was commander of a wide area or zone which included Llapushnik Lapusnik at the time material to the Indictment 577 Shukri Buja gave evidence before the Chamber He testified that he returned to Kosovo at the same time as Fatmir Limaj in March 1998 Both men were part of a larger group travelling back to Kosovo The members of the group received weapons and ammunition whilst in Albania crossed the border on foot and headed towards the Drenica area 1927 Shukri Buja’s evidence is that both he and Fatmir Limaj proposed to go to their respective places of birth the areas they knew best a view which was endorsed by Hashim Thaci 1928 Shukri Buja went to set up a KLA unit in Mollopolc Malopoljce and his understanding is that Fatmir Limaj would have been organising the KLA movement in Klecke Klecka 1929 His evidence is that both men communicated through couriers in order to keep contact with the General Staff through Hashim Thaci Fatmir Limaj would generally escort Shukri Buja to meet Hashim Thaci as he knew the area well 1930 Shukri Buja further testified that when he stayed in Klecke Klecka sometime around mid April 1998 there were a few KLA soldiers guarding the village these soldiers he believes later became part of the Çeliku or possibly the Çeliku 1 unit 1931 There is no suggestion in Shukri Buja’s oral evidence that he was subordinated to or receiving orders from Fatmir Limaj at that time 578 Shukri Buja further stated that at the end of May 1998 he went to Kroimire Krajmirovce where he set up a unit called “Sokoli” or “Petriti” 1932 Shukri Buja testified however that in the month of June 1998 he had no access to communication lines and was not in a position to communicate with Fatmir Limaj 1933 His evidence is essentially that he does not know whether there was in May and June 1998 a command structure above the units aside from the General Staff and that the situation started to change with the development of sub-zones as of mid June 1998 1934 On 6 July 1998 Shukri Buja was appointed commander of the Nerodime Nerodimlje subzone 1935 His evidence is that in this period the commander of the Pashtrik Pastrik zone was Muse Jashari and that Fatmir Limaj remained in Klecke Klecka with the Çeliku unit 1936 It is Shukri Buja’s evidence that he would at times send individuals who had been arrested at 1927 1928 1929 1930 1931 1932 1933 1934 1935 1936 Shukri Buja T 3738-3746 Shukri Buja T 3751 Shukri Buja T 3756-3757 Shukri Buja T 3758-3760 Shukri Buja T 3767-3768 Shukri Buja T 3777-3781 Shukri Buja T 3785-3786 Shukri Buja T 3795-3797 Shukri Buja T 3798 Shukri Buja T 3799 222 Case No type Case # type date checkpoints to Klecke Klecka because “there were people who could know them There were also people from General Staff…”1937 579 Shukri Buja’s oral evidence differed in material respects from what he had said in an earlier interview with an OTP representative in April 2003 The effect of these differences was that the oral evidence given by the witness was significantly less favourable to the Prosecution than the earlier interview While Shukri Buja maintained that he had generally sought to tell the truth during the OTP interview he now believed that there were mistakes in what he told the OTP These he corrected in his evidence before the Chamber and it was these corrections he said which explained the material differences between his evidence and his earlier statement 580 The Prosecution essentially seeks to rely on what Shukri Buja said in his prior interview rather than on his evidence given in court to establish that Fatmir Limaj was exercising an intermediary command from Klecke Klecka between the General Staff and the various units in a zone which included Kroimire Krajmirovce and Llapushnik Lapusnik 1938 Elsewhere in this decision and principally in the Chamber’s decision given during the trial to admit as substantive evidence the earlier interview of Shukri Buja the Chamber has dealt with the considerations which persuaded the Chamber to take this unusual evidentiary course The decision to admit this earlier interview is not of course in any way determinative of the weight the Chamber attaches to it From its viewing of the videotape of the earlier statement and from the evidence of Shukri Buja the Chamber is satisfied that the earlier statement was made freely Further the Chamber is not impressed with the cogency of the reasons given by Shukri Buja for the changes evident in his testimony Rather the Chamber considers from its careful observations of the witness as he gave his evidence that the evident sense of bondship he displayed physically and revealed in his evidence for the KLA in general and for Fatmir Limaj in particular may well explain the changes from his earlier interview so as to place the relevant time for the KLA structure he earlier described outside the period relevant to the Indictment 581 For these reasons the Chamber is not able to accept the truth of the evidence of Shukri Buja given in court as to the time frame at which Fatmir Limaj first assumed a position of command of a zone or area that included the prison camp at Llapushnik Lapusnik That is the only evidence on this subject to which the witness purports to adhere He has expressly disavowed in the relevant respects what he said earlier when interviewed While the Chamber has strong suspicions in all the circumstances it is not able to make positive findings in favour of the Prosecution on the basis of what Shukri Buja said in the relevant parts of his expressly disavowed earlier statement 1937 Shukri Buja T 4052 223 Case No type Case # type date 582 The Chamber would also observe that were it able to be satisfied as to the truth and honesty of the relevant parts of what Shukri Buja said in the earlier statement which is not the case there remain some further difficulties in accepting from this that Fatmir Limaj had command of an area or zone which included the Llapushnik Lapusnik prison camp at the time relevant to the Indictment The manner of his questioning on that earlier occasion appears to have influenced important answers Some answers which can be understood as expressing a caveat were not followed up in the questioning to make clear what was intended 1939 At one point Shukri Buja describes Fatmir Limaj’s role as one of coordination a function he spontaneously equated with his own role in Kacanik Kacanik 1940 Elsewhere the role is described as consultative 1941 These references leave unclear whether Fatmir Limaj had a command role in the relevant sense 1942 Further there are passages which leave unresolved whether Fatmir Limaj or Ismet Jashari aka Kumanova was the person with ultimate responsibility in Klecke Klecka 1943 583 Ramadan Behluli testified that he joined the KLA in Kroimire Krajmirovce on 20 April 1998 and that with the agreement of Ramiz Qeriqi aka Luan he took charge of a unit in Pjetershtice Petrastica 1944 Ramadan Behluli’s evidence is that he was receiving orders from Ramiz Qeriqi aka Luan when it came to the defence of the existing positions It is Ramadan Behluli’s evidence that in May June and July 1998 Ramiz Qeriqi aka Luan was not receiving any orders from anyone but would rather take decisions himself 1945 Most importantly Ramadan Behluli testified that it was his understanding that there was no general commander in the months of May to mid August 1998 On his evidence such command first existed when the 121st Brigade was formed in August 1998 with Fatmir Limaj as its commander and Klecke Klecka as headquarters 1946 However he accepted that answers given in an interview with the OTP in April 2003 could be understood as indicating that there was a general commander between May and August 1998 in the area relevant to this case In this respect Ramadan Behluli offered the explanation that matters were only addressed generally in the interview and that relevant dates were not specified or at least not always clearly specified The witness testified that the area he drew on a map during the interview and which included Llapushnik Lapusnik reflected the zone under the 1938 1939 1940 1941 1942 1943 1944 1945 1946 Prosecution Final Brief paras 33-36 and 41 Exhibit P160 pp 36-37 Exhibit P160 pp 36-37 51 Exhibit P160 p 43 See Exhibit P160 p 51 Exhibit P160 p 43 Ramadan Behluli T 2656-2657 2659-2660 Ramadan Behluli T 2668-2670 2678 Ramadan Behluli T 2681-2682 224 Case No type Case # type date command of Fatmir Limaj at the end of 1998 and early 1999 rather than between May and August 1998 1947 584 In the prior interview on 25 April 2003 he was asked to describe the KLA structure as it was in the spring and summer 1998 In doing so Ramadan Behluli clearly in the Chamber’s view placed Fatmir Limaj as the commander of the Pashtrik Pastrik zone 1948 One sentence in this passage however referred to Ramiz Qeriqi being a battalion commander 1949 This is indicative of a time-period subsequent to that relevant in this case It raises the issues whether Ramadan Behluli properly understood the time-period he was asked to deal with or whether his knowledge of the development of the KLA structure at the time was sufficient to enable him to appreciate that there was a material difference between the various periods These issues were not clarified during the earlier interview 585 Later in the interview Ramadan Behluli was asked to draw on a map the zone under the command of Klecke Klecka in July 1998 1950 1951 referred to as the Pashtrik Pastrik zone The zone he drew was only roughly depicted and It clearly goes up to the Prishtina Pristina-Peje Pec road and includes the part of the Llapushnik Lapusnik village on the southern side of that road 1952 Ramadan Behluli drew the zone on the map prior to being asked whether this was the situation in July 1998 1953 However when specifically asked if this was the situation in July 1998 he answered “This is… the zone under the Klecka command ”1954 586 It is the view of the Chamber that Ramadan Behluli’s evidence especially its emphatic assertion that there was no general commander in the months of May to mid August 1998 represented a clear and very significant change from the answers he gave in the April 2003 interview It may be true that a few answers might have been affected by some uncertainty about the time period by Ramadan Behluli in this regard but despite this the general tenor of the relevant parts of the earlier interview are in marked and rather fundamental contrast to the positive assertion he made in his oral evidence that there was no general commander in the months May to mid August 1998 As with Shukri Buja the Chamber was persuaded to admit the prior interview of Ramadan Behluli as substantive evidence in the particular circumstances of this case The Chamber had viewed a video tape of that earlier interview and is satisfied it was freely given It is necessary 1947 1948 1949 1950 1951 1952 1953 1954 Ramadan Behluli T 2682-2684 Exhibit P119 Exhibit P121 p 22-23 Exhibit P121 p 22 Exhibit P121 p 51-52 With respect to the Pashtrik Pastrik zone see supra paras 57-63 Exhibit P119 Exhibit P121 p 51 Exhibit P121 p 51 225 Case No type Case # type date at this point to determine the weight to be given to the earlier interview which is now expressly contradicted or disavowed by Ramadan Behluli in the parts that are relevant for present purposes There are some differences of emphasis between the position of Ramadan Behluli and that of Shukri Buja Nevertheless having weighed all the relevant evidence and especially the demeanour of the witness as he dealt with these matters the Chamber is not prepared to accept the submission of the Prosecution that it should accept what was said in the 2003 interview as true and on this basis find that Fatmir Limaj was a general commander over an area or zone which included the Llapushnik Lapusnik prison camp in the months relevant to the Indictment Neither is the Chamber able to accept the truth and reliability of the relevant oral evidence of Ramadan Behluli in the trial on this issue As with Shukri Buja the witness’ evident regard for or bond with the KLA in general and Fatmir Limaj in particular may have influenced his evidence in court and explain the differences Whether that is the case or not the Chamber is not prepared to rely on his evidence in this respect or on his earlier interview 587 In the Prosecution’s submission the Chamber should also infer from a conversation between Ramadan Behluli and Fatmir Limaj on 17 June 1998 that Fatmir Limaj could give orders to Ramadan Behluli because he was the overall commander 1955 The words relied on are perhaps capable of being understood as an order but more readily appear to be an informal suggestion as to how Ramadan Behluli should act in the future 1956 Ramadan Behluli characterised the conversation as “an informal talk”1957 which manifestly contradicts the Prosecution’s suggestion that Fatmir Limaj was in fact issuing an order to Ramadan Behluli Also telling against the inference which the Prosecution argues for is a direct statement of the witness in his April 2003 interview that he was not receiving orders from anyone else but Ramiz Qeriqi aka Luan and certainly not from Fatmir Limaj 1958 588 Fadil Kastrati testified that while in Blinaje Lipovica he had an argument with one of the villagers On his account this incident was reported to Shukri Buja and some time later Commander Çeliku came to Blinaje Lipovica and ordered that Fadil Kastrati’s weapon be removed for 15 days because he was disturbing the order in the village Çeliku allegedly explained to Fadil 1955 1956 1957 1958 Prosecution Final Brief para 32 In his prior interview Ramadan Behluli stated “Even though Fatmir Limaj too encouraged me a little… when we were travelling on the road there he had asked me how the situation was… I was saying… and I told him what the situation was like that the police were still active in Carraleve… He said to me why don’t you attack… I said I haven’t received orders Then he replied to me… he said that if I saw a Serbian uniform never mind whether it’s a police or a soldier you yourself… don’t ask around and attack ” Exhibit P121 p 43 Ramadan Behluli T 28082810 Ramadan Behluli T 2809-2810 Exhibit P121 pp 23 and 28 226 Case No type Case # type date Kastrati that there were KLA regulations and that discipline had to be maintained 1959 This meeting occurred on the witness’ recollection before the Serbian offensive in July 1998 1960 589 Fatmir Limaj recalled confiscating Fadil Kastrati’s weapon sometime before the end of July 1998 He said that Shukri Buja then commander of the Nerodime Nerodimlje zone and he were in Blinaje Lipovica when a relative of Fadil Kastrati then the commander in Blinaje Lipovica asked Shukri Buja to take Fadil Kastrati’s weapon away because he feared that Fadil Kastrati would be killed in a blood feud with one of the villagers Shukri Buja stated that he could not remove that weapon as it belonged to Fadil Kastrati They decided that Fatmir Limaj would intervene as he was not familiar with Fadil Kastrati Fatmir Limaj said that he told Fadil Kastrati that there was an order from above that his weapon be taken away from him 1961 590 The Chamber accepts that Fatmir Limaj did disarm Fadil Kastrati sometime before the end of July 1998 in Blinaje Lipovica It remains unclear from these accounts however whether in doing so Fatmir Limaj was exercising powers of discipline over Fadil Kastrati as submitted by the Prosecution or simply intervened invoking a purported order from above when asked to in order to resolve a difficult personal situation Whether this particular incident reflected true powers of discipline rather than mere personal influence of Fatmir Limaj or depended on the purported invocation of orders from above cannot be determined on the evidence 591 Ruzhdi Karpuzi testified that between May and July 1998 he was a KLA soldier in the Çeliku 3 unit in Llapushnik Lapusnik 1962 In the course of his evidence he described an oath ceremony which he recalls took place at the end of June or early July 1998 in the yard of Bali Vojvoda in Llapushnik Lapusnik 1963 It is Ruzhdi Karpuzi’s evidence that a man named Çeliku had been selected by the soldiers to make a speech Çeliku allegedly talked about defending Kosovo by all means and respecting the civilian population regardless of its ethnicity This speech was welcomed by the soldiers although some laughed at the suggestion that all civilians were entitled to equal treatment The essential effect of Ruzhdi Karpuzi’s evidence is that although he was approached by a group of soldiers to become their leader Çeliku refused 1964 The witness further stated that he saw Çeliku in Llapushnik Lapusnik on two or three occasions during battles in the period between the oath ceremony and the fall of the gorge at the end of July 1998 Çeliku was then fighting on the frontline as a regular soldier and was known as Daja meaning “Uncle” 1965 1959 1960 1961 1962 1963 1964 1965 Fadil Kastrati T 2616-2817 Fadil Kastrati T 2618 Fatmir Limaj T 6569-6572 Ruzhdi Karpuzi T 3078-3081 Ruzhdi Karpuzi T 3096-3098 3175 The witness marked the location of the yard with an “X” on Exhibit P128 Ruzhdi Karpuzi T 3103-3107 Ruzhdi Karpuzi T 3104-3106 3139-3140 3200 227 Case No type Case # type date On Ruzhdi Karpuzi’s evidence he only heard of Çeliku being referred to as a commander sometime in the fall following the formation of the 121st Brigade 1966 He had never heard of him being the commander of Çeliku 1 1967 592 A number of material differences were revealed between Ruzhdi Karpuzi’s oral evidence and his prior statement dated July 2003 1968 The first of these differences relates to Çeliku’s response to the soldiers upon being asked to be their leader during the oath ceremony Ruzhdi Karpuzi’s prior statement indicates that the speech of Çeliku inspired the soldiers to respect him and to want him as their leader Çeliku’s answer was essentially that his preparedness to become their leader was conditional upon them respecting what he had said 1969 There was no indication in the statement however of soldiers laughing at Çeliku’s words A second difference between the witness’ oral evidence and his prior statement concerns the time at which Çeliku became known to him as Commander Çeliku In court Ruzhdi Karpuzi stated that he heard people addressing Çeliku as Commander Çeliku sometime in September October or November 1998 following the formation of the 121st Brigade 1970 In the prior statement Ruzhdi Karpuzi said that this happened after the oath ceremony without specifying any date 1971 A third inconsistency relates to the presence and role of Çeliku on the few occasions he visited Llapushnik Lapusnik after the oath ceremony and before the fall of the gorge on 26 July 1998 Ruzhdi Karpuzi’s statement suggests that Çeliku came to visit the soldiers in the fighting positions to see how the trench-digging was proceeding 1972 This could well imply a position of leadership of Çeliku it is however absent from Ruzhdi Karpuzi’s oral evidence which merely placed Çeliku as a regular soldier fighting along with the others on the frontlines 1973 593 Of further relevance is the evidence of L95 that in the end of July 1998 by order of the commander of his unit L95 and other soldiers went to Novoselle Novo Selo in order to assist the forces of Commander Çeliku which were likely to be attacked by the Serbian forces 1974 L95 recounted that on that same day or possibly the next day the members of his unit met Commander Çeliku near a school in Novoselle Novo Selo towards Divjake Divljaka 1975 On L95’s evidence Commander Çeliku called out L95 by his pseudonym put him in charge of the unit in the absence 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 Ruzhdi Karpuzi T 3106-3107 Ruzhdi Karpuzi T 3278 Exhibit P136 In February 2005 immediately prior to his testimony Ruzhdi Karpuzi reviewed his statement and proposed a few corrections none of which have any material bearing on the present issues Exhibit P137 Ruzhdi Karpuzi T 3125-3130 Exhibit P136 para 11 Ruzhdi Karpuzi T 3106-3107 3137-3138 3192-3199 Exhibit P136 para 6 Ruzhdi Karpuzi T 3178-3182 Exhibit P136 para 12 Ruzhdi Karpuzi T 3104-3106 3139-3140 3178-3181 3200 L95 T 4203-4209 L95 T 4213-4214 228 Case No type Case # type date of the leader and told him that he could come to the headquarters in Klecke Klecka should he need anything 1976 L95 testified that he knew that man was Commander Çeliku because he said “we were under Çeliku’s command We were there to assist them So when he came to meet us we knew that he was Commander Çeliku ”1977 L95 further testified that Commander Çeliku was at the time “commander of a zone” 1978 However the limitations of the witness’ knowledge as to this particular aspect of his evidence including of the boundaries of that alleged zone were very apparent from his evidence L95 acknowledged himself that he was uncertain about the boundaries of the zone which he says was under the command of Çeliku 1979 and that his evidence in this respect was nothing more than his understanding at the time which was based on what he had heard on television and radio broadcasts and from his impression as a member of the KLA in a neighbouring unit 1980 L95’s evidence concerning the meeting with Commander Çeliku in Novoselle Novo Selo certainly suggests that at that particular point in time Commander Çeliku had a position of authority over L95 L95’s evidence itself however most readily explains this on the basis that his unit had been ordered to go join Çeliku’s unit and lend assistance to its members in the attack from Serbian forces then anticipated In this way he came under Çeliku’s command In the Chamber’s view this evidence does not demonstrate that Commander Çeliku had a position of command and authority which extended geographically beyond the command of his local unit 594 The Prosecution also seeks to rely on a number of media interviews given by Fatmir Limaj and other KLA members at various points in time In a RTK Radio and Television of Kosovo television documentary on the KLA produced after the war possibly in 2002 1981 a former KLA member Skender Shala who was not called as a witness explained how on 9 May 1998 he went to Llapushnik Lapusnik and saw that a Pinzgauer belonging to the Serbian forces had been attacked by “Çelik’s unit” and was on fire 1982 In this context Skender Shala referred on a couple of occasions to “Commander Çelik” 1983 If it is accepted that Çelik is a reference to Fatmir Limaj as to which there is no direct evidence this extract could be interpreted as an indication that Fatmir Limaj then exercised some degree of command over at least “Çelik’s unit” in Llapushnik Lapusnik This is of course entirely consistent with other evidence given earlier and Fatmir Limaj’s own evidence that 1976 1977 1978 1979 1980 1981 1982 1983 L95 T 4214-4215 L95 T 4215 L95 T 4217 L95 T 4218 4221 L95 T 4218 Fatmir Limaj T 6197 Exhibit P34 p 8 Exhibit P34 pp 8 and 9 229 Case No type Case # type date along with soldiers from Klecke Klecka he went to Llapushnik Lapusnik on that day to help in the fighting 1984 595 It should also be observed that this is an ex post facto documentary As such it might well not reflect with reliability precise factual details A review of the entire interview reveals for instance that Fatmir Limaj is at times referred to as “Uncle” i e Daja “Çeliku” “Commander Çeliku” or “Commander Limaj” 1985 similarly although the context of the documentary is clearly set in May to July 1998 his soldiers are sometimes referred to as belonging to “Çelik’s unit” or “the 121st Brigade” 1986 An ex post facto reference in 2002 to Fatmir Limaj as a commander does not assist in determining whether in mid 1998 he was as he accepts commander of the Çeliku 1 unit based in Klecke Klecka or a regional or zone commander as is alleged by the Prosecution Despite the implication from the documentary the 121st Brigade had not been formed at the time relevant to the Indictment Further reliance is placed by the Prosecution upon an interview which Fatmir Limaj gave to the newspaper Zeri y Kosoves in September 1998 1987 In recalling the KLA success in Llapushnik Lapusnik the journalist suggests that Fatmir Limaj was “in command” there 1988 Fatmir Limaj’s answer does not deny this suggestion but neither does it confirm it He only mentions the “fighting spirit of our three units” 1989 which is consistent with his and other evidence noted earlier that three units travelled from Klecke Klecka or with the evidence that the KLA had more than one commander in Llapushnik Lapusnik during the actions described 596 A further Prosecution witness Sylejman Selimi was on his evidence appointed commander of the first operational zone the Drenica zone at the end of May 1998 1990 Sylejman Selimi testified that in this capacity he was responsible for organising the various units which were then acting in a more or less independent fashion into what were later to become brigades 1991 On his evidence the Drenica zone was to the north of the Prishtina Pristina-Peje Pec main road but included Llapushnik Lapusnik It would appear from his overall evidence however that this refers to the part of the village of Llapushnik Lapusnik to the north of the road rather than the southern part where the prison camp was located and that the main road through Llapushnik Lapusnik was the actual boundary of the zone 1992 A significant aspect of Sylejman Selimi’s oral evidence is that 1984 1985 1986 1987 1988 1989 1990 1991 1992 Fatmir Limaj T 5936-5938 Fatmir Limaj in particular referred to the incident with the Pinzgauer and stated that the group of KLA soldiers was fortunate to have hit it as it led the Serbian forces to withdraw T 5936-5938 Exhibit P34 pp 8 11 12-13 and 14 Exhibit P34 pp 8 and 11 Exhibit P44 Exhibit P44 p 2 Exhibit P44 p 2 Sylejman Selimi T 2071 Sylejman Selimi T 2076 Sylejman Selimi T 2086-2090 2149-2150 Sylejman Selimi confirmed the boundaries of the Drenica and Pashtrik Pastrik zones as they appear on Exhibit P1 map 10 See also supra paras 57-63 230 Case No type Case # type date from May to July 1998 there was not a single command or commander over the Çeliku units rather the units were fighting independently from each other 1993 Sylejman Selimi stressed that the reason why he stated in a previous interview with the OTP that Fatmir Limaj was the commander of the Çeliku units is because the questions he was asked then related to the KLA activity during both 1998 and 1999 and he was not sufficiently prepared at the time to be able to distinguish between the structural changes at various points in time 1994 His evidence in court is that he only came to know of Fatmir Limaj as Commander Çeliku in the course of the formation of the 121st Brigade 1995 597 This account is largely confirmed by the evidence of Jakup Krasniqi who testified that at the time relevant to these proceedings there was no overall commander in the area which was to become the Pashtrik Pastrik zone On his evidence in July 1998 Muse Jashari was appointed commander of the Pashtrik Pastrik zone 1996 Jakup Krasniqi’s evidence is that Fatmir Limaj was the commander of a unit in Klecke Klecka at that time 1997 598 Defence witnesses were called to support the case that Fatmir Limaj was the commander of the Çeliku 1 unit in Klecke Klecka at the time relevant to this Indictment Fatmir Limaj himself testified to that effect He explained how in March and April 1998 there were only three men in Klecke Klecka namely Haxhi Shala Ismet Jashari aka Kumanova and himself 1998 Fatmir Limaj described how at the end of April 1998 Rexhep Selimi brought two radios and it was then decided that Fatmir Limaj would use the radio call sign or code Çeliku 1 while Ismet Jashari would use Çeliku 2 this on Fatmir Limaj’s evidence is how he came to be known as Çeliku and his unit came to be called Çeliku 1 1999 Among the soldiers however it was his evidence that he was then known as Daja meaning “Uncle” 2000 Fatmir Limaj denied having coordinated from Klecke Klecka the events leading to the taking of Llapushnik Lapusnik in May 1998 and more generally the assistance between the various units during fighting in June and July 1998 2001 The effect of his evidence is that in May 1998 the only institutional mechanism was the General Staff and that there was no intermediate level of command between the General Staff and the various units 2002 Fatmir Limaj indicated that in the months of June and July 1998 he often went to Llapushnik Lapusnik up 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 Sylejman Selimi T 2155-2156 Sylejman Selimi T 2156-2157 Sylejman Selimi T 2163-2164 Jakup Krasniqi T 3479-3481 Jakup Krasniqi T 3402 Fatmir Limaj T 5925-5926 Fatmir Limaj T 5935-5936 5938-5939 6255 Fatmir Limaj T 5938-5939 Fatmir Limaj T 5946-5948 6286-6287 Fatmir Limaj T 5950-5951 6277-6278 Fatmir Limaj rejected the suggestions by the Prosecution that there was a chain of command going from Likofc Likovac to Klecke Klecka to Kroimire Krajmirovce between May and July 1998 and that Fatmir Limaj was giving orders to Shukri Buja and Ramiz Qeriqi T 6264-6266 231 Case No type Case # type date to twenty times sometimes on his way to Likofc Likovac 2003 Finally Fatmir Limaj’s evidence is that he was never the commander of the Pashtrik Pastrik zone rather in early July 1998 Muse Jashari was appointed commander of that zone by the General Staff 2004 599 Fatmir Limaj’s evidence is supported by that given by Rexhep Selimi Bislim Zyrapi and Elmi Sopi Rexhep Selimi testified that at the time relevant to these proceedings Fatmir Limaj was based in Klecke Klecka and was leading a unit called Çeliku 1 2005 Rexhep Selimi confirmed Fatmir Limaj’s account that the name Çeliku 1 was a radio communication code 2006 Between April and August 1998 on Rexhep Selimi’s evidence Fatmir Limaj did not carry the general task of coordinating KLA units in the area nor had he the power to do so 2007 Bislim Zyrapi also testified that in June 1998 Fatmir Limaj was member of a unit based in Klecke Klecka and ready to intervene along the position lines in the Berishe Berisa Mountains however at the time the ambit of Fatmir Limaj’s responsibility did not extend beyond the unit in Klecke Klecka 2008 Bislim Zyrapi further testified that his understanding was that Ymer Alushani aka Voglushi was in charge of Llapushnik Lapusnik not Fatmir Limaj 2009 Similarly on Elmi Sopi’s evidence he never heard of Fatmir Limaj issuing orders in Llapushnik Lapusnik and only saw him there during fighting 2010 600 Also before the Chamber is a body of evidence from witnesses previously detained in the Llapushnik Lapusnik prison camp and who purport to have identified Fatmir Limaj as present in the camp and exercising some kind of authority over its operation That evidence has been examined in detail earlier in this decision and for the reasons given above the Trial Chamber was unable to conclude that the Accused Fatmir Limaj had been reliably identified as the person these witnesses saw in the Llapushnik Lapusnik prison camp 2011 601 For the reasons identified in the preceding paragraphs the Chamber is not able to be satisfied beyond reasonable doubt that the Prosecution has established that in the period from May to 26 July 1998 the Accused Fatmir Limaj held a position of command in the KLA which included command of KLA soldiers in the village of Llapushnik Lapusnik or in particular in the prison camp which existed at that time in the southern part of that village That is so whether each relevant piece of evidence is considered separately or in combination As has been indicated even though there is a strong possibility apparent on the evidence that Fatmir limaj was active as a 2003 2004 2005 2006 2007 2008 2009 2010 2011 Fatmir Limaj T 5972-5974 Fatmir Limaj T 5963-5967 Rexhep Selimi T 6597-6598 Rexhep Selimi T 6694-6695 Rexhep Selimi T 6593-6595 6669-6673 6693-6694 Bislim Zyrapi T 6825-6826 Bislim Zyrapi T 6826 Elmi Sopi T 6728 See supra paras 530-562 232 Case No type Case # type date commander in the prison camp at times relevant to the Indictment the Chamber’s role and duty remains clear It is to determine whether the Prosecution has been able to prove its case beyond reasonable doubt in so far as it alleges that Fatmir Limaj exercised command de jure or de facto or effective control in the prison camp and over the KLA soldiers conducting the camp or over the KLA guards who escorted the remaining prisoners from the prison camp to the nearby Berishe Berisa Mountains on 25 or 26 July 1998 In the finding of the Chamber on very careful final analysis the evidence falls short of establishing these essential matters to the required degree which is beyond reasonable doubt 602 Having regard to all the matters concerning the Accused Fatmir Limaj discussed earlier and also the later consideration given to the allegation of a joint criminal enterprise it has not been established by the Prosecution that Fatmir Limaj is liable to conviction for any of the offences charged in the Indictment whether under Article 7 1 or 7 3 of the Statute 2 Responsibility of Haradin Bala a Was Haradin Bala identified at the Llapushnik Lapusnik prison camp 603 The Prosecution alleges in the Indictment that Haradin Bala who it is not contested is also known as Shala personally participated in the enforcement of the detention of Serbian civilians and perceived Kosovo Albanian collaborators in the Llapushnik Lapusnik prison camp in the interrogation of the camp inmates and in their brutal and inhumane treatment It is further alleged that Haradin Bala participated in the murder of some of the detainees in the camp and the murder of others committed in the Berishe Berisa Mountains 2012 The Defence for Haradin Bala denies these allegations and in particular submits that the prison guard referred to as Shala in the evidence is not the Accused Haradin Bala 2013 604 One of the detainees in the Llapushnik Lapusnik prison camp Vojko Bakra testified that he met Shala in the camp on a number of occasions He described Shala as a man aged 45 or 50 around the same height as Vojko Bakra with dark hair and a black moustache 2014 In the evidence of Vojko Bakra Shala was wearing a red and black hat with the insignia of the KLA 2015 It was Vojko Bakra ’s testimony that Shala was a guard who brought food and cigarettes to the prisoners 2016 Vojko Bakra testified that when asked by the “commander” to give a statement 2012 2013 2014 2015 2016 Indictment para 12 Defence Final Brief paras 610 Vojko Bakra T 1330-1332 Vojko Bakra T 1372-1374 Vojko Bakra T 1330-1332 233 Case No type Case # type date about the conditions in the camp his son Ivan mentioned that he played chess with Shala 2017 The witness stated that he spoke with Shala During those talks Vojko Bakra looked at Shala directly 2018 However at an interview with UNMIK investigators in January 2002 the witness did not identify anyone on a photo spread shown to him This contained a photograph of Haradin Bala as one of eight photographs 2019 The Chamber observes that on the exhibit the face of Haradin Bala is hardly distinct which is a possible explanation for the failure to identify the photograph of Haradin Bala but as the evidence is not clear whether the exhibit tendered in court is what was shown to Vojko Bakra or merely a perhaps poor subsequent reproduction the Chamber cannot reach a positive conclusion about this non-identification Throughout his entire testimony Vojko Bakra spoke of Shala which is the name he knew in the camp In his evidence he did not purport to identify this Shala in the courtroom It is necessary therefore to also consider the Defence suggestion that there was another KLA member in Llapushnik Lapusnik perhaps at the relevant time who also used the name or pseudonym Shala If so references by witnesses to Shala need not be to Haradin Bala This is considered in more detail a little later in this decision 605 Vojko Bakra ’s son Ivan who also experienced detention in Llapushnik Lapusnik at the same time as his father testified that Shala was an older man of medium height with a moustache 2020 Shala seems to have made a good impression on Ivan Bakra He describes Shala as a good-natured man who brought them food and other supplies 2021 According to his testimony Shala was the one who unlocked the door 2022 Ivan Bakra testified that he never saw Shala beat anyone and his behaviour towards the witness and his father was generally respectful 2023 He also mentioned the time when he played chess with Shala 2024 Unlike his father Ivan Bakra had no difficulties identifying Shala on a photo spread He identified a photo of Haradin Bala as the person he knew as Shala He stated that during an interview with the OTP investigator in January 2003 he recognised Shala on the line-up “immediately” 2025 In cross-examination Ivan Bakra affirmed that he had not mentioned during that interview that he played chess with Shala 2026 The Chamber does not attach significance to this omission however since it could be readily explained by the short length of the interview and because a chess game was hardly a central issue to events at 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 Vojko Bakra T 1347 Vojko Bakra T 1332 1377 Agreed fact Vojko Bakra T 1371 Exhibit DB1 photo spread A2 Ivan Bakra T 1439-1441 Ivan Bakra T 1439-1441 Ivan Bakra T 1457 Ivan Bakra T 1457 Ivan Bakra T 14560 Ivan Bakra T 1464-1466 A copy of the photo spread is in evidence Exhibit P83 T 1466 There are eight black-and-white quite clear photos Haradin Bala is no 8 In the Chamber’s view photograph no 8 is a good likeness of Haradin Bala Ivan Bakra T 1554-1555 234 Case No type Case # type date Llapushnik Lapusnik 2027 Ivan Bakra did describe Shala in his evidence as being of “strong” build He also said this at the prior interview In his evidence the witness added that Shala was “on the stocky side” a description consistent at least with his present appearance 2028 Strong build does not closely correspond with the current appearance of Haradin Bala The descriptions given by other witnesses of Shala’s build in Llapushnik Lapusnik are somewhat varied ranging from “rather thin” to “fatter than” the person describing him 2029 The question of Haradin Bala’s build at the relevant time is therefore unclear but it appears to have impressed witnesses differently As in the case of his father’s testimony Ivan Bakra was not asked in the course of his evidence if he could identify Haradin Bala in the courtroom the person he knew as Shala He did of course unequivocally identify a photograph of Haradin Bala on the photo spread as Shala 606 Another detainee L04 testified that he saw Shala in the prison camp several times In his testimony Shala was about 45 years old about 170 or 175 centimetres tall with black hair a moustache and black teeth 2030 L04 stated that after the war he found out that Shala’s real name was Haradin Bala 2031 There is no supporting evidence from the source of that information about Shala’s name so that the Chamber does not place reliance on this In the evidence of L04 Haradin Bala was a guard in the prison who was always there during the 28 days of the witness’ detention in Llapushnik Lapusnik Haradin Bala brought food and cigarettes to L04 2032 The Defence for Haradin Bala observes that the witness made no reference to Shala or Haradin Bala while he was interrogated about events in the prison camp by Serbian authorities in October 1998 despite having named other KLA soldiers he came into contact with at Llapushnik Lapusnik 2033 The absence of mention of Shala in the statement given by L04 to the Serbian authorities is not surprising when regard is had to the general scarcity of KLA names in the text The people involved in the KLA are referred to as “KLA members” throughout the whole statement apart from two men whose pseudonyms are mentioned The only names that appear in the statement are those of detainees 2034 In the Chamber’s assessment the lack of reference to Shala or Haradin Bala in the statement has little bearing on the assessment of the credibility of L04’s evidence relating to that Accused 607 The witness accepted in cross-examination that his description of Haradin Bala provided in court differed from the one given in the witness’ initial statement to the Prosecution in that he then 2027 2028 2029 2030 2031 2032 2033 2034 The Prosecution objected to the Defence line of cross-examination relating to such omissions pointing out that the prior statement was probably 11 pages long T 1553 Ivan Bakra T 1557 L12 T 1811-1812 L06 T 1001-1002 L04 T 1179 L04 T 1180-1881 1238-1241 L04 T 1177-1179 Defence Final Brief paras 680-681 687 Exhibit P203 Exhibit P203 235 Case No type Case # type date said that Haradin Bala measured 180-185 centimetres 2035 Further L04 failed to recognise anyone on a photo spread of six photographs containing a photo of Haradin Bala during questioning by investigators from CCIU in 2002 2036 The photo spread is not in evidence so the Chamber cannot determine whether the photograph of Haradin Bala was of good quality and whether it was a good likeness However the witness identified the Accused Haradin Bala in the courtroom as the person he knew as Shala in the prison camp 2037 In addition he made it clear that the person to whom he referred as Shala throughout his testimony is Haradin Bala and specifically rejected the Defence’s suggestion that he mistook someone else for Haradin Bala 2038 L04 testified that while in the camp he saw Shala every day 2039 which given the duration of the witness’ detention allowed considerable opportunity for original observation which could strengthen the reliability of his subsequent identification but leaves unexplained his non-identification of a photograph in 2002 The Trial Chamber is very well conscious of the possibility of mistake with courtroom identification 2040 In this case the possibility of mistake could be further heightened because L04 had seen Haradin Bala on television before he testified 2041 The witness appears to have seen Haradin Bala on television in connection with the present proceedings i e after he gave his initial interview In view of L04’s failure to recognise the photograph of Haradin Bala during the initial interview the in-court identification remains the only identification of him by this witness 608 L07 who was also detained in the Llapushnik Lapusnik prison camp testified that he saw Shala in the camp in 1998 The witness testified that Shala’s hair and moustache at that time were the same as at the time of L07’s testimony in court 2042 It was the evidence of L07 that one day Shala was wearing a red shirt and black trousers and had an automatic rifle in his hand 2043 L07 stated that Shala was a prison guard and took care of the detainees 2044 The witness testified that Haradin Bala behaved quite well with the detainees 2045 During his testimony L07 referred occasionally to Haradin Bala as “Commander Shale” or “Commander Shala” 2046 However he made it clear that he referred to Haradin Bala 2047 2035 2036 2037 2038 2039 2040 2041 2042 2043 2044 2045 2046 2047 L04 T 1241-1243 Agreed fact T 1370 L04 T 1180-1181 L04 T 1241-1243 L04 T 1177 See supra para 18 L04 T 1241 L07 T 809 L07 T 809 L07 T 808-810 L07 T 832 L07 T 795-796 810 L07 T 811 236 Case No type Case # type date 609 L07 stated that he learned the real name of Shala from Haradin Bala himself in 1999 when they met at a petrol station 2048 It was put to L07 in cross-examination that he did not mention this encounter with Haradin Bala during his interviews with UNMIK or the Tribunal investigators in 2002 and 2003 respectively The witness explained that he was not specifically asked about it 2049 The statement of L07 given at the UNMIK interview is less than two pages long It contains only one reference to Haradin Bala 2050 It is thus understandable that there is no mention of the circumstances in which L07 came to know the real name of Shala The interview given to UNMIK in 2003 was however much more detailed than the earlier one The issue of discovering the name of Shala was raised in its course L07 described his first encounter with Shala and stated that he “subsequently” came to know his real name 2051 The circumstances of that subsequent occasion were not mentioned The lack of specific reference to the meeting at the petrol station was explained by L07 on the basis that the investigators did not ask him 2052 The Chamber would observe that this is somewhat surprising omission by the investigators given the relevance of the issue of the identification of Shala It accepts however that the issue was left on the basis that L07 subsequently came to know Shala’s real name While it would not have been surprising had L07 told the investigators how he came to learn Shala’s real name the Chamber does not attach significance to his failure to do so in either of the interviews before he came to give evidence L07 directly refuted a further reaching suggestion made by the Defence for Haradin Bala a suggestion not supported or followed up in evidence that the meeting at the petrol station never took place 2053 Even though L07 did not deal with the subsequent meeting with Shala at a petrol station in either of his previous interviews given the circumstances of each interview the Chamber would make it clear that it does not find that L07 did not remember the meeting with Haradin Bala at the petrol station when he gave either of the earlier interviews or that this meeting was a “recent invention” of L07 The Chamber also observes that the evidence does not suggest that L07 had any difficulty recognising Shala at the petrol station 610 In cross-examination L07 stated that he saw Haradin Bala on television when the trial began 2054 There is thus a possibility that the identification of Haradin Bala by L07 in court might be mistaken not only because of the effects of the courtroom setting in which Haradin Bala was an accused but also by virtue of the television image seen by L07 This witness was detained in the 2048 2049 2050 2051 2052 2053 2054 L07 T 810 L07 T 895 Exhibit P70 Exhibit P71 para 15 L07 T 895 L07 T 899 L07 T 899 237 Case No type Case # type date Llapushnik Lapusnik prison camp for three days 2055 Hence his opportunities for observation of Shala were more limited that some other witnesses The evidence does not indicate that L07 was ever asked to identify Shala by a photo spread identification In the Chamber’s finding L07 was honest and quite certain in his identification of Haradin Bala as Shala but for the reasons canvassed the Chamber must be cautious about the reliability of the identification 611 L10 was detained for approximately one and a half month in the Llapushnik Lapusnik prison camp 2056 In his testimony Shala appeared to be between 40 and 50 years old and about 180 to 200 centimetres tall The witness stated that Shala had a moustache and that his hair was slightly grey Shala’s teeth were a bit blackened and some teeth were missing at the front L10 testified that Shala wore joggers sometimes trousers and that he always had an automatic gun 2057 Shala brought food and sometimes water to the detainees 2058 He had the keys 2059 Throughout his testimony L10 while referring to the person he believed was Haradin Bala used the nickname Shala L10 stated that he learned the real name of Shala from two individuals 2060 Those were witnesses in this trial L12 and L96 The reliability of their knowledge that Shala’s real name was Haradin Bala can be assessed in light of the Chamber’s conclusions in respect of their testimony As will be shown neither of them is flawless 2061 Thus the reliability of the source of L10’s evidence that Haradin Bala is the real name of Shala is less than persuasive L10 also identified Haradin Bala as Shala in the courtroom 2062 Although he did not watch any part of these proceedings on television he did see the Accused on television at the time of their arrest 2063 As with L07 there is the possibility of a mistaken identification both because the identification was of an accused in a courtroom setting and because the television image may have influenced his identification Also as with L07 the evidence does not suggest that L10 was asked to attempt a photo spread identification While L10’s description of Shala was not very precise especially in respect of height it is reasonable in a number of respects The Chamber is satisfied that he was honest and quite sure in his identification but for the reasons indicated the Chamber treats the identification with caution While in some respects the probative value of the identification evidence given by this witness can be loosely compared with that of L04 there is the countervailing factor of the length of the witness’ detention and frequency of his sightings of Haradin Bala Even 2055 2056 2057 2058 2059 2060 2061 2062 2063 See supra para 279 See supra para 279 L10 T 2947 L10 T 2920-2922 L10 T 2998 L10 T 2947-2948 See infra paras 612 and 616 L10 T 2949 L10 T 2949 3030-3031 238 Case No type Case # type date so the Chamber has reservations about the reliability of the identification of the Accused Bala by L10 612 L96 was detained in the Llapushnik Lapusnik prison camp for approximately a week in July 1998 2064 In his testimony Shala is described as a 45-year old dark skinned man with black hair and a black moustache 2065 Shala was between 175 and 180 centimetres tall with a face that was “a bit haggard” 2066 It was the evidence of L96 that Shala wore a black uniform a black shirt and sometimes a black beret A KLA emblem was on either his shirt or beret 2067 According to the testimony of L96 Shala always carried a Kalashnikov without a butt 2068 L96 stated that Shala together with Murrizi brought food to the detainees and escorted them to the toilets located outside in the yard 2069 L96 purported to identify the real name of Shala as Haradin Bala The basis offered for this purported identification is not of any force L96 testified that during the march to the Berishe Berisa Mountains specifically at a cherry tree another of the detainees told a personal relation of L96 that he knew Shala and that Shala came from the Komaran Komorane area 2070 L96 further testified that after the events at Llapushnik Lapusnik L96 and his family attempted to find out the identity of Shala 2071 L96 stated that he ruled out the first person whom his uncle thought to be the Shala seen by L96 in the prison camp because the physical description of that person was different 2072 L96’s uncle later “found out” that the real name of the Shala from the prison camp was Haradin Bala 2073 The source of this information is not identified L96 testified that in August 2000 he met Xheladin Ademaj who had the name Haradin Bala written in his notebook 2074 It is suggested that L96’s testimony on that fact was contradicted by a statement allegedly given by Xheladin Ademaj 2075 However neither has the statement been tendered into evidence nor can its content be deduced from the testimony of L96 Whatever may be the position the Chamber cannot attach any weight to L96’s evidence that the name of Shala is Haradin Bala 613 In February 2002 during an interview with UNMIK investigators L96 was shown six photographs He immediately recognised one of them to be “Shale” 2076 This was a photograph of Haradin Bala The Defence for Haradin Bala argued that no reliance should be placed on that 2064 2065 2066 2067 2068 2069 2070 2071 2072 2073 2074 2075 2076 See supra para 279 L96 T 2305 2480 L96 T 2305 L96 T 2305 L96 T 2305 L96 T 2302 2303 2339-2340 L96 T 2478 2500 2503 L96 T 2476 2478-2479 L96 T 2395 2478-2479 2501-2502 L96 T 2396 L96 T 2399 2477 Defence Final Brief para 795 L96 T 2471-2472 2477 L96 T 2366-2367 2369 Exhibit P102 There are six relatively clear black-and-white photos Bala is no 5 239 Case No type Case # type date identification because the investigators did not follow what they submit to be the correct procedure In particular it appears L96 was asked if he wanted extra time during which he could leave the room 2077 However L96 had readily identified “Shale” before being offered extra time and the possibility of briefly leaving the room 2078 Therefore whatever may have been an appropriate procedure the value of this identification is not affected by the suggested shortcomings In addition it must be noted that it is the evidence of L96 that he saw Shala in the Llapushnik Lapusnik camp every day sometimes several times a day 2079 In the course of his testimony the witness also identified Haradin Bala in the courtroom 2080 The witness stated however that he watched a television broadcast of the proceedings of this trial before he came to testify 2081 Hence for reasons discussed in connection with other witnesses the Chamber is conscious of the possibility of a mistaken identification both because it was of an accused in a courtroom setting and because of the viewing of the television broadcast of the trial The Chamber has also taken into account the views expressed elsewhere in this decision arising from other issues concerning the credibility of L96 Having weighed all of these matters the Chamber nevertheless accepts that L96 recognised a photograph of Haradin Bala as that of the person he knew in Llapushnik Lapusnik and described in his evidence as Shala Even so because of its reservations for reasons discussed elsewhere 2082 about the general honesty and reliability of L96 and because of the issues discussed in this paragraph giving rise to the possibility of mistake the Chamber is not prepared to accept and rely on this identification in the absence of other evidence of identification which satisfies the Chamber independently of L96 614 L06 who was detained at the Llapushnik Lapusnik prison camp for about a month and a 2083 half testified that he saw Shala every day 2084 L06 testified that Shala was around 50 years old had a dark complexion and his teeth were a bit rotten L06 stated that Shala was a little taller and fatter than him 2085 Haradin Bala is in fact half a centimetre taller than L06 2086 Therefore contrary to a suggestion of the Defence for Haradin Bala 2087 the limited description of Shala given by the witness is generally in keeping with that of Haradin Bala L06 stated that Shala was a guard and he would together with Murrizi come into the room where the witness was held and bring food and water Every three or four days in the evening Shala would open the door and allow the prisoners 2077 2078 2079 2080 2081 2082 2083 2084 2085 2086 2087 Defence Final Brief para 781 L96 T 2367 L96 T 2304-2305 2338 L96 T 2574 L96 T 2471-2472 See supra para 26 See supra para 279 L06 T 1001 L06 T 1001-1002 Agreed fact T 5187 Defence Final Brief para 703 240 Case No type Case # type date to walk a bit 2088 L06 testified that while in the prison camp Shala called him “Uncle” 2089 However there is nothing in L06’s testimony to suggest that there were any family connections between them or that he had known Haradin Bala before the war It is to be noted that there is evidence that some soldiers addressed Fatmir Limaj in the same way 2090 L06 testified that after the war he heard from people in his village that Shala was Haradin Bala 2091 In cross-examination he stated that those people realised his identity when Shala was shown on television 2092 The witness also identified Haradin Bala in the courtroom as the person he knew as Shala at Llapushnik Lapusnik 2093 Of course as discussed above in connection with other witnesses the Chamber must be cautious because of the possibility of a mistaken identification as this was in a courtroom where Haradin Bala was an accused Further L06 had also seen Haradin Bala on television The context of the television broadcast is not disclosed in the evidence There is a possibility of mistake in identification by virtue of the television viewing The Chamber does accept the effect of the evidence of L06 that he had seen Shala in the camp a great deal and that Shala became very familiar to him 2094 The Chamber also accepts his evidence that while marching to the Berishe Berisa Mountains on 25 or 26 July 1998 he had a very clear view of Shala 2095 The evidence does not indicate that L06 was asked to attempt to identify Shala in a photo spread identification 615 The Defence for Haradin Bala also questions the honesty or reliability of L06’s identification because he made no mention of Shala in a statement given to the Serbian authorities after his release in 1998 He named other KLA soldiers with whom he came into contact at Llapushnik Lapusnik 2096 The statement indeed does not contain reference to Shala Two KLA nicknames are mentioned At the end of the statement there are the names of the four individuals who as L06 stated had originally kidnapped him 2097 L06 testified that he did not reveal to the Serbian authorities the identity of those who held him in detention he could not because they were wearing masks 2098 The evidence relating to that interview is far from clear Nevertheless the Chamber notes that KLA names and pseudonyms are referred to in the statement to the Serbian authorities only in connection with the release of the witness from the camp and his kidnapping Where events that occurred within the camp are discussed the expression used in the statement is 2088 2089 2090 2091 2092 2093 2094 2095 2096 2097 2098 L06 T 997-998 L06 T 1003 See supra paras 591 595 L06 T 1003-1004 L06 T 1094-1095 L06 T 1006-1007 L06 T 1106-1107 L06 T 1107 Defence Final Brief para 712 Exhibit P204 L06 T 1032-1033 241 Case No type Case # type date “KLA members” without identifying them 2099 The Chamber therefore attaches little weight to the absence of an express mention of the name Shala Even so while the identification of Haradin Bala by L06 was apparently honest and certain for the reasons indicated it will be approached with caution 616 The Chamber has heard the evidence of another detainee L12 who was held in the cowshed for about one month 2100 L12 said that he saw Shala every night and also during the day 2101 In L12’s testimony Shala was probably 56 years old had a dark complexion and a moustache Shala was of medium height and rather thin L12 testified that Shala wore black clothes 2102 In crossexamination L12 accepted that the first time he gave a description of Shala to the Prosecution was only several days before giving evidence On that occasion he said that he had not taken a good look at Shala He then described Shala as a tall man taller than him and well-built 2103 This differs from his description given in court It was the evidence of L12 that Shala had the keys to the cowshed and would let people into the cowshed to beat L12 Shala together with Murrizi also brought food for the detainees 2104 It is of significance that in June 2002 at a meeting with persons from CCIU L12 was shown a photo spread containing a photograph of Haradin Bala He did not recognise anyone in the photo spread 2105 As the photo spread is not in evidence it is not possible for the Chamber to make an assessment of whether or not his failure to recognise Haradin Bala could be due to the quality of the photo or to a poor likeness in the photo The onus of proof is on the Prosecution of course in this as in all matters In the courtroom L12 did identify Haradin Bala as the man he knew as Shala in Llapushnik Lapusnik 2106 This witness had also seen a person he believed to be Shala on television before he came to testify 2107 Once again the possibility of a mistaken identification because of the influence of the courtroom setting must be weighed with care Also the possibility of mistake because of the viewing of the television image must be considered even though the witness specifically stated that he had identified in the courtroom the man he knew at the camp as Shala and this was not because he watched television 2108 Having regard to these matters and in particular to the failure of L12 to identify Shala on the photo spread and the variations in his description of Shala the Chamber is left with clear reservations about the reliability of his in-court identification of Haradin Bala as the person he knew in the camp as Shala 2099 2100 2101 2102 2103 2104 2105 2106 2107 2108 Exhibit P204 See supra para 279 L12 T 1801 L12 T 1811-1812 L12 T 1839-1840 L12 T 1802 L12 T 1779-1780 L12 T 1812-1813 L12 T 1812-1813 1842 L12 T 1847-1848 242 Case No type Case # type date 617 L64 who was a KLA member testified that he visited the Llapushnik Lapusnik prison camp for the first time in early June 1998 2109 He stated that his first encounter with Haradin Bala took place in the beginning of June in that part of Llapushnik Lapusnik where the KLA kitchen was located 2110 According to L64’s testimony Haradin Bala stayed in Llapushnik Lapusnik until the end of July although the witness did not see him in the last days of July 2111 L64 described Haradin Bala as a man of over forty years old about 180 centimetres tall with a moustache his teeth were not white they were a little damaged and very split 2112 In June 2003 during an interview with an investigator for the Prosecution L64 described Haradin Bala as having an injured leg L64 stated that he might have confused Haradin Bala with another person called Shala whose real name is Ruzhdi Karpuzi and who had an injury to his right leg 2113 In the course of the interview L64 said that the two Shalas could be confused not only because of the pseudonym but also because they bore a resemblance to one another 2114 However in court L64 testified that those two men known as Shala did not look alike He explained that his previous statement to the investigator differed from his in-court testimony because at the time of his previous statement he thought that Haradin Bala might be released and there was no need for the witness to say what he knew about him 2115 L64 said that by giving such a statement he tried to help Haradin Bala 2116 618 L64 stated that Haradin Bala was a “kind of a guard” and it was his duty to stay at the gate of the house called a prison 2117 The witness testified that on one or several occasions he saw Shala carrying food from the kitchen and bringing it inside 2118 It was L64’s evidence that Shala was a calm and well behaved soldier The witness said that he was on good terms with Shala 2119 L64 testified that he knew the real name of Shala and also that his father was Selman Haradinaj 2120 During an interview with an investigator on 17 June 2003 the witness correctly identified Haradin Bala on a photo spread 2121 Nevertheless there are reasons for approaching the identification and the evidence of L64 with caution In addition to the inconsistencies about the leg and the general appearance between the prior statement of the witness and his in-court testimony during an interview conducted on 4 July 2003 L64 stated that he “did not have contact with Shala” 2122 This 2109 2110 2111 2112 2113 2114 2115 2116 2117 2118 2119 2120 2121 2122 L64 T 4456 L64 T 4445-4446 L64 T 4446 L64 T 4447 L64 T 4786-4791 4449 L64 T 4793-4794 L64 T 4452 L64 T 4904-4905 L64 T 4446-4447 L64 T 4447 L64 T 4447-4449 L64 T 4445 L64 T 4454 Exhibit P172 There are eight quite clear black-and-white photos Haradin Bala is no 8 L64 T 4771 243 Case No type Case # type date was manifestly contradicted by parts of L64’s evidence It appears to have been made purposefully Thus it appears that L64 has been prepared to give accounts which are not truthful in material respects concerning Haradin Bala There are also significant considerations of a general nature discussed elsewhere in this decision as to the credibility of this witness 2123 In the result the Chamber is not persuaded that in the absence of independent confirmation it can accept the testimony of this witness relating to the identification of Haradin Bala 619 Ruzhdi Karpuzi was involved in the KLA movement He testified that he saw Haradin Bala in Llapushnik Lapusnik regularly but this was at the place from which the witness and other soldiers were observing a Serbian checkpoint in Komaran Komorane between 8 and 18 May 1998 Ruzhdi Karpuzi’s testimony was that he did not see Haradin Bala after that 2124 The witness stated that in May 1998 Haradin Bala’s pseudonym was Shala 2125 The evidence of Ruzhdi Karpuzi identifying Haradin Bala is however only of a limited relevance because it relates only to an early period and does not connect Haradin Bala directly with the Llapushnik Lapusnik prison camp 620 Zeqir Gashi a medical doctor testified that he saw Haradin Bala in Llapushnik Lapusnik in June and July 1998 He stated that Haradin Bala came to his clinic once or twice for a check-up 2126 Dr Zeqir Gashi testified that he also saw Haradin Bala once or twice in the kitchen of the house of Gzim Gashi 2127 The kitchen was located across a narrow unpaved roadway from the compound in which in the Chamber’s finding the prison camp was set up 2128 The witness said he had known Haradin Bala before the war for about 10 to 15 years 2129 Dr Zeqir Gashi testified that Haradin Bala’s pseudonym was Shala and he believed that he was an ordinary soldier He described Haradin Bala as a man of medium height between the average and maximum height with a moustache 2130 It will be noted elsewhere in this decision how Dr Zeqir Gashi’s description of the medical condition of Haradin Bala at that time tallies with that of some Defence witnesses The witness did not suggest he had seen Haradin Bala in the Llapushnik Lapusnik prison camp itself so that his identification of Haradin Bala in the village of Llapushnik Lapusnik is of a limited relevance for the purposes of the present analysis although as will appear it is of significance when evaluating an alibi advanced by the Defence for Haradin Bala 2123 2124 2125 2126 2127 2128 2129 2130 See supra para 28 Ruzhdi Karpuzi T 3081-3082 3084 Ruzhdi Karpuzi T 3139 However the witness earlier stated he did not remember whether Haradin Bala had a pseudonym T 3082-3084 Dr Zeqir Gashi T 5621 5654-5655 Dr Zeqir Gashi T 5622 5611-5613 See supra para 6 Dr Zeqir Gashi T 5619-5621 Dr Zeqir Gashi T 5622-5623 5663 244 Case No type Case # type date 621 The totality of the evidence of the former prisoners discloses striking consistency on a few points All eight of them testified that Shala brought food to the detainees All of them either directly or by describing his duties referred to Shala’s position as a guard in the camp The witnesses provided similar estimates of Shala’s age testifying that Shala was over 40 or 50 years old This is of greater than usual relevance because as the evidence discloses few KLA members were of a similar age most being younger 2131 All the former prisoners stated that Shala had a moustache and three of them mentioned his teeth 2132 The descriptions given by the former prisoners have in most respects a general correspondence with the physical appearance of Haradin Bala although they do vary in detail Despite these variations the Chamber is persuaded and finds that in their testimony these witnesses who were all in the Llapushnik Lapusnik prison camp for periods during the relevant time gave evidence about the same person a person known to them in the camp as Shala Shala is shown to have been the pseudonym used by the Accused Haradin Bala at Llapushnik Lapusnik in May to July 1998 622 Furthermore all eight of them used the pseudonym Shala while referring to the guard from the Llapushnik Lapusnik prison camp The evidence is that there were only two persons using the pseudonym Shala in Llapushnik Lapusnik in the relevant period 2133 There is however also evidence relating to other persons whose surnames were Shala According to that evidence some of them were at some earlier point in Llapushnik Lapusnik In the evidence of Jakup Krasniqi at some time Ferat Shala was in the Pellumbi unit and was based to the north of the main road from Peje Pec to Prishtina Pristina 2134 The Llapushnik Lapusnik prison camp in the Chamber’s finding was to the south of that main road 2135 According to the evidence on 9 May 1998 Haxhi Shala went to Llapushnik Lapusnik when he found out about the fighting with the Serbian forces When he arrived he met among others Shaban Shala Nexhmi Shala and Ramiz Shala 2136 The evidence however shows that Haxhi Shala did not stay in Llapushnik Lapusnik on that day and in the evening went to Klecke Klecka 2137 The evidence does not indicate that Haxhi Shala or any other of the three individuals with the surname Shala whom Haxhi Shala met in Llapushnik Lapusnik on 9 May 1998 remained there or returned to that place at any later time In the Chamber’s finding none of these five persons could have been the person referred to as Shala in the testimony of the witnesses who were held in Llapushnik Lapusnik in the period that followed and ended on 25 or 26 July 1998 It is uncontested that Haradin Bala used the pseudonym Shala and was present there 2131 2132 2133 2134 2135 2136 2137 Exhibit P245 statement and tab 9 L04 L10 L06 L64 T 4451 Exhibit P32 Jakup Krasniqi T 3404 See supra para 282 Exhibit P34 pp 8-9 Exhibit P34 p 9 245 Case No type Case # type date at least for some of the period relevant to the Indictment 2138 The other KLA member using the pseudonym Shala has been identified as Ruzhdi Karpuzi 2139 He is thus the only person for whom Haradin Bala could have been mistaken by the witnesses However he bears no resemblance to Haradin Bala He is 8 years younger than Haradin Bala 2140 15 centimetres taller2141 and the evidence does not indicate that he wore a moustache in 1998 2142 In particular Ruzhdi Karpuzi walked with a limp because of an injury to his leg 2143 Given these characteristics of Ruzhdi Karpuzi the Chamber is satisfied that the victim witnesses whose evidence has just been considered were not referring to Ruzhdi Karpuzi in their evidence concerning the KLA soldier they knew in the Llapushnik Lapusnik camp as Shala One possible caveat to this view should be noted in that L64 a KLA soldier who is not a former prisoner described Shala as having an injured leg As mentioned earlier however this witness acknowledged in his evidence that to try and help Haradin Bala he was at the time he said this deliberately trying to create confusion about the two Shalas 623 The Chamber has put to one side for the present the evidence of two further witnesses discussed above L96 and L64 in each case because without some independent confirmation of what they have said the Chamber considers that it cannot have sufficient confidence in the honesty and reliability of each of these two witnesses In respect of two other witnesses Ruzhdi Karpuzi and Dr Zeqir Gashi while these witnesses identify Haradin Bala as having been at Llapushnik Lapusnik in May 1998 in the case of Ruzhdi Karpuzi and in June and July 1998 in the case of Dr Zeqir Gashi their evidence is of a more limited relevance for present purposes because neither of them spoke of any connection between Haradin Bala and the prison camp Nevertheless each of them confirms the Accused’s presence in Llapushnik Lapusnik although at different times and in this respect has some consistency with the other evidence being considered at this stage There remain however seven other witnesses six of whom have identified Haradin Bala either or both when shown photo-boards in earlier years or in court and who recall him being known as Shala in the prison camp and the seventh witness Vojko Bakra who recalls Shala in the prison camp but who did not identify him when shown a photo spread which included a photograph of Haradin Bala in 2002 624 In the view of the Chamber one of these witnesses in particular stands out because of the Chamber’s assessment of the witness and of the care honesty competence and in this and most matters the reliability he displayed when giving evidence and because of the opportunities he had 2138 2139 2140 2141 2142 2143 Defence Final Brief paras 832-834 837 L64 T 4449 Ruzhdi Karpuzi T 3061-3062 Exhibit P131 Ruzhdi Karpuzi T 3053 Exhibit P08 Agreed facts T 5187-5188 L64 T 4794 Exhibit P134 Ruzhdi Karpuzi T 3201-3203 L64 T 4451 4905 Elmi Sopi T 6762-6763 246 Case No type Case # type date in 1998 to closely observe the guard in the prison camp whom he then knew as Shala This witness is Ivan Bakra The Chamber finds that he immediately and unhesitatingly recognised a photograph of the person he knew in the camp as Shala which was a photograph of the Accused Haradin Bala when shown a photograph of 8 different but similar persons in January 2003 by an OTP Investigator The circumstances of the interview with the investigator do not give rise in the assessment of the Chamber and in particular having weighed the expert evidence which was led on the potential difficulties with photo-board identification to any reason of substance which detracts from the reliability of this unhesitating and confident photo-board identification Earlier in these reasons the Chamber has noted the oral description of Shala given by Ivan Bakra It is not a closely detailed description but subject to the Chamber’s expressed views about his impression of the build of Shala his description is in general accord with that of Haradin Bala The nature of the description does not leave the Chamber with any concern that it may reveal a lack of detailed recollection such as would detract from the reliability of the photo spread identification The Chamber has taken into account that Ivan Bakra generally saw Shala in the house in the prison camp rather than in one of the outhouse locations where others were detained so that he had much better opportunities for observation of Shala including when he played chess with him 625 L07 was in the view of the Chamber a witness who was honest and quite certain that the Accused Haradin Bala was the person he knew as Commander Shala or Shale in the Llapusnik Lapusnik camp in 1998 He had there seen Shala or Shale over a somewhat limited period of time as discussed earlier The Chamber accepts that he did meet the Accused Haradin Bala at a petrol station in 1999 i e relatively shortly after the relevant events readily recognised him as Shala and there was given his correct name Haradin Bala by the Accused himself For the reasons discussed earlier the Chamber does not consider that the absence of specific reference to the petrol station meeting in two subsequent statements is explained by recent invention or error by L07 It is accepted he merely responded to questions put to him by the respective investigators While his oral description of Haradin Bala is brief it is consistent with the Accused’s appearance The Chamber would not however be able to be entirely confident of the identification of the Accused on the evidence of L07 alone because L07 had also seen TV coverage of the commencement of these proceedings and because of the possibility of mistake because the identification was of an accused person in a court-room setting as discussed earlier 626 Both L10 and L06 were held prisoner in Llapushnik Lapusnik camp for about two months Neither had been asked by investigators to look at a photo spread but in court each of them identified the Accused Haradin Bala as a guard of the prisoners over that period and who was then known as Shala The oral descriptions given by each of them differed in some details but each were generally consistent with the appearance of Haradin Bala although in respect of height one 247 Case No type Case # type date suggested a height range of about 180 to 200 centimetres tall which while appropriate at the lower end is not at the upper end of the given range reveals a lack of reliable original observation of this descriptor or lack of clear recollection of it Not only did each of these witnesses have an opportunity to see Shala over a significant period of time but L06 also had a good opportunity to observe him on the journey on foot into the Berishe Berisa Mountains on 25 or 26 July 1998 Both of these witnesses appeared to the Chamber to be honest and confident in their identification in court of the Accused Haradin Bala as the Shala they knew at the prison camp but in each case this identification was made in court and each of these witnesses had seen television coverage at the time of Haradin Bala’s arrest or in connection with these proceedings There is also a question of family tension discussed earlier For these reasons and as discussed earlier the Chamber would not be satisfied on the evidence of either of these witnesses alone of the identification of the Accused 627 Two other witnesses L04 and L12 also identified Haradin Bala in court as a guard at the Llapushnik Lapusnik prison camp where they had been held as prisoners each for approximately one month in the period relevant to the Indictment L12 indicated he had not taken a good look at Shala when pressed about variations in oral description of Shala L04 also gave descriptions of Shala which differed at least with respect to height Both L04 and L12 had seen television coverage in connection with these proceedings in which Haradin Bala appeared Further both L04 and L12 had failed to identify a photograph of Haradin Bala when shown photo spreads which included his photograph In each case this occurred in 2002 when shown a photo spread by a UNMIK investigator As discussed earlier neither photo spread is in evidence so that the Chamber cannot reach any conclusion as to the quality of the photographs of Haradin Bala which were used or the degree of likeness to the Accused In the circumstances the Chamber must proceed on the assumption which favours the Accused that there was a sufficient likeness and that the photographs were of adequate quality to have enabled identification Hence their failure to recognise the photograph of Haradin Bala may well indicate that in their view in 2002 none of the persons depicted was the man they knew as Shala Their failure may also have been dictated by other factors such as lack of certainty and a fear of mistakenly identifying an innocent person or societal pressures 2144 The Chamber is not in a position to determine the actual reasons for the negative identifications because the evidence is too scarce 2145 2144 2145 Having regard to these Anargyros Kereakes involved in the identification procedures concerning Fatmir Limaj and Isak Musliu stated that he informed the witnesses that he wanted them to be 100% sure that the person they picked was the suspect T 4998-4999 The Defence for Haradin Bala suggests that there may have been more negative identifications than admitted into evidence Defence Final Brief paras 896 898 However in view of the testimony of the investigators who were in charge of the identifications this allegation appears to be devoid of foundation Closing Arguments T 72767277 Anargyros Kereakes T 4949 Exhibit 258 paras 15 and 17 Exhibit 259 para 17 248 Case No type Case # type date considerations and as discussed earlier because of a question of a family tension the Chamber must approach the 2005 identifications by each of L04 and L12 with a clear recognition that each could be mistaken It does so even though it accepts that in each case the identifications were made honestly and that the witnesses were confident that the Accused Haradin Bala was the guard each of them knew as Shala in the prison camp 628 Vojko Bakra the father of Ivan Bakra described the person and his activities as a guard and a KLA soldier he knew as Shala while he was detained at Llapushnik Lapusnik Like his son he mainly saw Shala in the house He spoke with Shala on occasions description which was consistent with the Accused Haradin Bala He gave a general However when shown a photograph by UNMIK investigators in January 2002 he did not recognise anyone of the eight photographs even though one of them was of Haradin Bala The Chamber has observed earlier that in the exhibit of his photo spread the face of Haradin Bala is hardly distinct but in the absence of evidence whether the exhibit is a good copy of what was shown to the witness it cannot be determined whether that could explain the failure of Vojko Bakra to identify Haradin Bala Nevertheless he did not do so and he was not asked at any other time to do so As discussed earlier however the Chamber is persuaded and finds that no person other than Haradin Bala was a guard at the prison camp in Llapushnik Lapusnik at the time relevant to the Indictment and used the name or pseudonym of Shala 629 As mentioned above in connection with L10 L06 L04 and L12 there is also a question of family connections which it is submitted by the Defence for Haradin Bala may affect the credibility of the evidence of these witnesses As discussed earlier the Chamber is not persuaded that the evidence of these four witnesses has been affected by the dispute between their family and the family with which in the submission of the Defence for Haradin Bala Haradin Bala had some distant connection Nor has the Chamber been persuaded that any discussion about the events in the prison camp between these four witnesses who belong to one extended family could be of significance to the reliability of their testimony 2146 or have any adverse bearing on the assessment of the credibility of the respective identifications of the Accused Haradin Bala as Shala by these four witnesses 630 On a more general level the Chamber would observe that all of the eight victim witnesses discussed above gave accounts of the role and activities of the guard they each knew in Llapushnik Lapusnik as Shala in terms that differed in some respects as is to be expected as each person describes his own experiences and observations drawing on his present recollection some 2146 See supra paras 32 and 35 249 Case No type Case # type date seven years after the events but which discloses in general effect a similar pattern of activities and responsibilities The Chamber is also conscious that the clothing worn by Shala varied in the descriptions of these eight witnesses but in the view of the Chamber this is not surprising as Shala was obviously seen at different times by different persons 631 In weighing the evidence of these eight witnesses2147 the Chamber is fully conscious of the potential for each of the seven of them who identified Haradin Bala to have been mistaken in their respective identification especially because of the particular issues discussed above in respect of each witness While in each case the possibility of a mistaken identification must be very carefully weighed by the Chamber it does not necessarily follow that because for one reason or another an identification by a witness may be mistaken that the identification has no probative value and must be dismissed from consideration In each case the Chamber accepts the honesty of the seven identifying witnesses particularly Ivan Bakra and also of the eighth Vojko Bakra In the present circumstances a factor relevant to the assessment of the probability of an honest but mistaken identification by each one of the seven witnesses is that six other persons acting honestly have at different times and in different circumstances also identified Haradin Bala as the KLA guard they each knew as Shala in the prison camp at times during the relevant period While no one of the seven separate identifications when considered separately would satisfy the Chamber that Shala is Haradin Bala because of the various possibilities for honest mistake identified earlier in the particular circumstances now being considered the combination of these particular seven separate identifications does in the Chamber’s finding negate the possibilities of mistake and persuade the Chamber that the Accused Haradin Bala was indeed the KLA guard known as Shala in the prison camp as alleged 632 Further the Chamber notes that the evidence of the eighth former prisoner Vojko Bakra is consistent with this finding In addition as set out earlier because of general credibility concerns the Chamber has not been able to accept the evidence of either L96 or L64 in the absence of other independent confirmatory evidence L96 was a prisoner in the relevant period L64 was a KLA soldier Not only is the evidence of each of L96 and L64 not inconsistent with the guard in the prison camp being Haradin Bala but the identification of Haradin Bala which each of them made is independently confirmed by the identifications made by the other seven former prisoners In this respect at least the Chamber is therefore persuaded that it should accept the honesty and reliability of the separate identifications of Haradin Bala made by each of L96 and L64 2147 L04 L06 L07 L10 L12 L96 Vojko and Ivan Bakra 250 Case No type Case # type date 633 Before reaching its ultimately finding on this issue of identification however the Chamber must in particular weigh two further issues an alibi advanced by the Defence for Haradin Bala and the health of Haradin Bala at the relevant time b Haradin Bala’s alibi 634 The Defence for Haradin Bala submits that Haradin Bala could not have committed the crimes charged in the Indictment because he was only present in Llapushnik Lapusnik in May 1998 It is suggested that approximately on 8 May 1998 Haradin Bala went with his family to Nekoc Nekovce from where he went to Llapushnik Lapusnik to join the KLA In the Defence’s submission Haradin Bala stayed in Llapushnik Lapusnik for about two or three weeks and worked for the KLA in logistics and in the kitchen at Gzim Gashi’s compound The Defence for Haradin Bala contends that in June and July 1998 Haradin Bala moved from Llapushnik Lapusnik and worked for the KLA in logistics in Luzhnice Luznica and stayed in the house of Avdullah Puka 2148 635 Haradin Bala elected not to give sworn evidence That is his legal right and no finding adverse to him may be made because of this A consequence of his election is however that in so far as his defence case rests on an alibi and also on his health there is no sworn evidence from the Accused to support his alibi or the contention about his health at the time In this particular case the absence of sworn evidence from the Accused which has been tested in cross-examination to found or support these two positive defences on which he relies has the effect depriving the Defence for Haradin Bala of evidence which could have provided a sure and convincing foundation for the alibi and for the contention about his health Instead in advancing these two positive defences the Defence for Haradin Bala must rely on an unsworn opening statement and other evidence which is not consistent complete or in the Chamber’s ultimate assessment convincing 636 Events preceding Haradin Bala’s arrival in Llapushnik Lapusnik were described in the testimony of a Defence witness Kadri Dugolli He stated that on or around 8 May 1998 Haradin Bala brought his family to stay with the witness’ family in Nekoc Nekovce 2149 The witness testified that some of Haradin Bala’s family members came on a tractor others in a horse-drawn cart or on foot 2150 On the following day in the evidence of Kadri Dugolli Haradin Bala went to Llapushnik Lapusnik 2151 If this evidence is correct it indicates that the place from which Haradin Bala set off for Llapushnik Lapusnik on 9 May 1998 was Nekoc Nekovce However in an unsworn opening statement Haradin Bala stated 2148 2149 2150 2151 Defence Final Brief paras 831-840 845 Kadri Dugolli T 7010 7015 Kadri Dugolli T 7016 Kadri Dugolli T 7010 7014 251 Case No type Case # type date “I live in Korretice e Eperme it’s a valley on sic which on the 9th of May … I saw flames coming from Lapusnik … It seemed as if it was coming from my own courtyard … I decided to join these young men ”2152 What Haradin Bala said indicates that on 9 May 1998 Haradin Bala went to Llapushnik Lapusnik from his home village Korretice e Eperme Gornja Koretica and not from Nekoc Nekovce as asserted by the Defence for Haradin Bala and as indicated by Kadri Dugolli the only defence witness on this matter 2153 The Defence Final Brief does not address this inconsistency There is other evidence relevant to the date of Haradin Bala’s arrival in Llapushnik Lapusnik Elmi Sopi stated that Haradin Bala came to Llapushnik Lapusnik some time after 9 May 1998 2154 Although it is unsourced and unconfirmed hearsay the Chamber also notes that Shefki Bala testified that he was told that Haradin Bala arrived in Llapushnik Lapusnik after the battle of 9 May 1998 2155 Elmi Sopi put the date as sometime after 9 May 1998 This does not support the Defence case that he arrived on 9 May 1998 637 In the evidence of Elmi Sopi Haradin Bala stayed at Llapushnik Lapusnik for some time in May 1998 and left after the fighting of 29 May 1998 2156 Although his evidence is not precise the effect of the evidence of Elmi Sopi in the Chamber’s assessment is that the total time spent by Haradin Bala in Llapushnik Lapusnik is approximately three weeks However in his unsworn opening statement Haradin Bala stated that he stayed in Llapushnik Lapusnik for only around two weeks which gives rise to a further inconsistency between the evidence called by the Defence for Haradin Bala and his unsworn opening statement to the Chamber 2157 In any event in the submission of the Defence for Haradin Bala Haradin Bala left Llapushnik Lapusnik at the end of May 1998 2158 The evidence of Elmi Sopi is that a KLA soldier Kumanova encouraged Haradin Bala to go with him to Luzhnice Luznica 2159 Haradin Bala said in his unsworn opening statement that he did go with Kumanova to that place 2160 638 Elmi Sopi testified that he lived in Llapushnik Lapusnik and was a member of the KLA in the relevant period 2161 From May to July 1998 Elmi Sopi says he went everyday to the kitchen of the compound of Gzim Gashi 2162 As established this compound was across a narrow roadway 2152 2153 2154 2155 2156 2157 2158 2159 2160 2161 2162 Unsworn statement of Haradin Bala T 6912 Defence Final Brief para 831 Elmi Sopi T 6746 Shefki Bala T 6922 6926 Elmi Sopi T 6747 Unsworn statement of Haradin Bala T 6913 Defence Final Brief para 835 Elmi Sopi T 6764 Unsworn statement of Haradin Bala T 6913-6914 Elmi Sopi T 6758 Elmi Sopi T 6729-6732 252 Case No type Case # type date from the prison camp 2163 It is the effect of his evidence that he did not see Haradin Bala in the Gzim Gashi compound after the end of May 1998 In his testimony most KLA soldiers had their meals in the kitchen there 2164 If this evidence is correct the probabilities would suggest it was highly unlikely for Elmi Sopi not to meet Haradin Bala in the kitchen at least occasionally if Haradin Bala had remained in Llapushnik Lapusnik in June and July It is noted by the Chamber that Elmi Sopi also denied in his evidence any knowledge of the prison camp in Llapushnik Lapusnik 2165 which in the Chamber’s finding functioned directly across the narrow unpaved roadway from Gzim Gashi’s compound for much of June 1998 and until 26 July 1998 It is Elmi Sopi’s evidence that he never had occasion to go to the compound which served as the prison camp 2166 Even so it is somewhat surprising that a KLA member who visited the compound across the roadway everyday for some two and a half months had no knowledge whatever of the existence of the prison camp 639 The Defence for Haradin Bala’s assertion that during his stay at Llapushnik Lapusnik Haradin Bala worked for the KLA in logistics as well as in the kitchen at Gzim Gashi’s compound has not been supported by any evidence 2167 The Defence case is that Haradin Bala then left Llapushnik Lapusnik and worked for the KLA logistics in Luzhnice Luznica The Defence for Haradin Bala relies on the testimony of three former KLA members Elmi Sopi Skender Bylykbashi and Avdullah Puka Elmi Sopi stated that he met Haradin Bala in mid or late August 1998 in Novoselle Novo Selo It is his evidence that Haradin Bala told him that Bala was in Luzhnice Luznica 2168 This of course is well after the KLA were forced to leave Llapushnik Lapusnik on 25 or 26 July 1998 In the testimony of Avdullah Puka Haradin Bala stayed at his house in Luzhnice Luznica from the end of June to the end of August 1998 2169 Avdullah Puka stated that Haradin Bala told him that he was responsible for logistical issues in Luzhnice Luznica 2170 Skender Bylykbashi testified that he met Haradin Bala in either the middle of June or July 1998 in Bajice Banjica 2171 The witness stated that Haradin Bala told him that he was working in Luzhnice Luznica serving in the storage there 2172 At its highest even if the evidence were to be accepted as honest and reliable all three witnesses only heard that Haradin Bala was located in Luzhnice Luznica They had no personal knowledge Importantly it is the evidence of each of the three witnesses that they each only heard this from Haradin Bala himself 2163 2164 2165 2166 2167 2168 2169 2170 2171 See supra para 6 Elmi Sopi T 6733 Elmi Sopi T 6739 Elmi Sopi T 6768-6769 Defence Final Brief para 834 Elmi Sopi T 6747-6748 Avdullah Puka T 7085-7088 Avdullah Puka T 7090 Skender Bylykbashi T 6969 253 Case No type Case # type date Avdullah Puka testified that he did not see Haradin Bala in Luzhnice Luznica 2173 Skender Bylykbashi stated that he was never in Luzhnice Luznica in June and July 1998 2174 It is not the evidence of Elmi Sopi that he ever saw Haradin Bala in Luzhnice Luznica No other evidence has been adduced by the Defence for Haradin Bala in this connection Ruzhdi Karpuzi however a witness for the Prosecution testified that after what he said was around 18 May 1998 he did not see Haradin Bala in Llapushnik Lapusnik It was his evidence that he had heard that Haradin Bala was in Luzhnice Luznica The source of this information was not disclosed 2175 640 It was the testimony of Avdullah Puka that Kumanova brought Haradin Bala to Avdullah Puka’s house in Javor Javor in late June 1998 2176 He said that Haradin Bala stayed in the oda guestroom of that house until the end of August 1998 2177 Avdullah Puka did acknowledge that Haradin Bala might have been away for two to three days during his stay in Avdullah Puka’s oda 2178 In the evidence of Avdullah Puka six or seven other soldiers stayed in his oda in the same period 2179 The oda had its separate entrance and thus the guests did not have to pass through Avdullah Puka’s house 2180 The witness stated that in that period he was busy with his own tasks and did not pay close attention to what the soldiers were doing 2181 When tested in cross- examination it became clear that Avdullah Puka was not certain who stayed in his oda and in which period 2182 Furthermore it emerged in the course of Avdullah Puka’s evidence that some of the soldiers he said occupied his oda in the summer of 1998 returned in the autumn of 1998 2183 However he did not identify with three exceptions the soldiers who did stay in the summer and he could not say which soldiers were there in autumn 2184 He was unable to recall whether one soldier Bezim Zhurda stayed in Avdullah Puka’s house in the autumn 1998 as he did in the summer It was apparent to the Chamber that he had no clear recollection of who stayed in his oda in either summer or autumn Despite this Avdullah Puka most firmly refuted the suggestion that Haradin Bala might have returned in the autumn 2185 The Chamber could not accept that this firm refutation was based on an honest or clear recollection of Haradin Bala being there in the summer as opposed to the autumn It found his evidence in this respect quite unconvincing Further and significantly 2172 2173 2174 2175 2176 2177 2178 2179 2180 2181 2182 2183 2184 2185 Skender Bylykbashi T 6971 Avdullah Puka T 7090 Skender Bylykbashi T 6996 Ruzhdi Karpuzi T 3081-3082 Avdullah Puka T 7085-7087 Avdullah Puka T 7088-7089 7099 Avdullah Puka T 7101-7102 Avdullah Puka T 7088 7093-7095 Avdullah Puka T 7088-7089 Avdullah Puka T 7101 Avdullah Puka T 7094 Avdullah Puka T 7095-7097 Avdullah Puka T 7093-7097 Avdullah Puka T 7095-7097 254 Case No type Case # type date in the Chamber’s assessment Avdullah Puka did not maintain any close or consistent attention to which soldiers stayed in his oda or to their comings and goings or whether they were absent overnight or for any period Avdullah Puka’s statements in evidence that Haradin Bala stayed there from late June to the end of August and that in that time he did not leave the oda for more than three days appeared to the Chamber to be made because of a firm commitment to the KLA cause and not to be based in any actual and honest recollection of those two matters 641 Skender Bylykbashi recounted his meetings with Haradin Bala in Bajice Banjica between the middle of June or July and 26 July 1998 or later In his testimony on one of those occasions Haradin Bala came to Bajice Banjica with flour for his brother-in-law’s family 2186 When they met they had brief conversations not exceeding a few minutes 2187 Even though the testimony of Skender Bylykbashi is relied on by the Defence for Haradin Bala for the purposes of the alibi this witness’ account of meetings with Haradin Bala does not contradict or undermine the evidence that in the relevant time Haradin Bala was present in the Llapushnik Lapusnik prison camp and committed the acts charged in the Indictment Bajice Banjica is located only approximately three to four km from Nekoc Nekovce 2188 In the testimony of Kadri Dugolli Haradin Bala came by car with food supplies for his family from Llapushnik Lapusnik to Nekoc Nekovce in May 1998 2189 He could equally have made visits to his family in Bajice Banjica from Llapushnik Lapusnik in June or July 1998 The evidence is clear that at least at times Haradin Bala had the use of a car in the period relevant to the Indictment 2190 642 The Defence for Haradin Bala also submits that some evidence suggests the practical impossibility of Haradin Bala’s continuous or at least near daily presence in Llapushnik Lapusnik It is submitted that in the period of June and July 1998 Haradin Bala visited the makeshift clinic of Dr Fitim Selimi in Shale Sedlare so frequently that he could not have been seen as a prison guard in Llapushnik Lapusnik on a daily or near daily basis 2191 Dr Fitim Selimi testified that he was in Shale Sedlare in the period from mid June to 25 or 26 July 1998 2192 In his testimony Haradin Bala came to the clinic in Shale Sedlare ten or more times 2193 Shale Sedlare is about seven to ten km from Llapushnik Lapusnik 2194 and is by a road which leads to Llapushnik Lapusnik via Bajice Banjica and Nekoc Nekovce 2195 A car can be driven on that road 2196 Haradin Bala had the 2186 2187 2188 2189 2190 2191 2192 2193 2194 2195 Skender Bylykbashi T 6969-6971 Skender Bylykbashi T 6972 Kadri Dugolli T 7020 Kadri Dugolli T 7020-7021 Skender Bylykbashi T 6996 Defence Final Brief para 844 Dr Fitim Selimi T 6943 Dr Fitim Selimi T 6946-6947 Dr Zeqir Gashi T 5664 Exhibit P1 map 6 255 Case No type Case # type date use of a car on at least some occasions 2197 It follows that Haradin Bala could readily be in both the prison camp and the clinic at Shale Sedlare on the same day 643 A lot of attention has been attached by the Parties to the testimony of Dr Zeqir Gashi and in particular to the date when he opened his clinic in Llapushnik Lapusnik Dr Zeqir Gashi testified that after his return from Arlat Orlate to Llapushnik Lapusnik he opened a makeshift clinic in the house of Ferat Sopi 2198 He stated in court that it took place sometime in the beginning of June 1998 2199 Therefore in light of Dr Zeqir Gashi’s account of Haradin Bala’s visits to the clinic this could contradict the evidence that Haradin Bala left Llapushnik Lapusnik at the end of May 1998 However in an interview with a Prosecution investigator Dr Zeqir Gashi provided a different indication of when the clinic was opened 2200 The investigator stated that to his best recollection Dr Zeqir Gashi said that he operated the clinic starting in May or June 2201 The investigator stated however that the precise date was not then of particular concern to him and he focused on other matters 2202 While the Defence for Haradin Bala sought also to diminish the force of Dr Zeqir Gashi’s evidence concerning the opening date by submitting it was influenced by leading questions 2203 the Chamber observed that the witness appeared certain that the clinic opened in June 1998 Indeed he specifically stated that he had made a mistake during the interview 2204 Further Dr Zeqir Gashi’s evidence of other events appeared chronologically sound which provided a further indication of its reliability It was the Chamber’s assessment that Dr Zeqir Gashi was of independent mind and gave no indication of being prepared to agree with any proposition in evidence that was contrary to his own understanding The Chamber is not able therefore to accept the Defence submission that no weight should be attached to his evidence about dates because of the way he was questioned Further other evidence dealt with this issue 644 Ferat Sopi testified that he began working with Dr Zeqir Gashi in his clinic some time in the period which he estimated as from 20 to 25 May 1998 2205 That is earlier than indicated by Dr Zeqir Gashi Ferat Sopi commented on the testimony of Dr Zeqir Gashi saying that it was partially correct 2206 However it was not clarified which parts of Dr Zeqir Gashi’s testimony he considered incorrect or what was his view on the difference between them about the time issue 2196 2197 2198 2199 2200 2201 2202 2203 2204 2205 2206 Exhibit P197 A car drive from Magure Magura to Llapushnik Lapusnik is described including Bajice Bajince Nekoc Nekovce and Kizhareke Kisna Reka Kadri Dugolli T 7020-7021 Elmi Sopi T 6764-6765 Avdullah Puka T 7090-7091 Dr Zeqir Gashi T 5604 Dr Zeqir Gashi T 5603-5604 5642-5645 5654-5655 Closing Arguments T 7466-7467 Exhibit DB7 para 10 Exhibit DB7 para 11 Closing Arguments T 7467-7468 Dr Zeqir Gashi T 5644-5645 Ferat Sopi T 7051-7052 Ferat Sopi T 7079 256 Case No type Case # type date The Chamber observes that none of the witnesses offered a precise date Ferat Sopi made it clear that his time range was an estimate He was only certain that the clinic was opened in the month of May 2207 That may well mean of course the very last days of May 645 Dr Zeqir Gashi did not provide a specific date indicating merely that the clinic started at the beginning of June 1998 In determining this Dr Zeqir Gashi appeared influenced by his other movements He testified that he returned to Llapushnik Lapusnik from Arlat Orlate after 28 or 29 May 1998 2208 No significant events were referred to in his testimony in the period between his return and the opening of the clinic No critical significance for the credit or reliability of Dr Zeqir Gashi attaches therefore to a day or two’s difference between the last days of May or the first days of June In the Chamber’s assessment of considerable relevance to this issue is an exhibit which is a chronological list of injections given in the clinic This begins on 31 May 1998 The injections are given numbers starting with “1” It thus appears that the list is not a continuation of another list The last injection according to the document was given on 25 July 1998 2209 This confirms the testimony of both Ferat Sopi and Dr Zeqir Gashi that the clinic operated until 26 July 1998 2210 Dr Zeqir Gashi was satisfied that the list was accurate and consistent with the kind of records that were kept in Llapushnik Lapusnik 2211 In light of the other evidence this list persuades the Chamber and it finds that the clinic of Dr Zeqir Gashi opened in Llapushnik Lapusnik on 31 May 1998 Accordingly Haradin Bala’s visits to the clinic must have taken place after that date The Chamber makes this finding despite the testimony of Elmi Sopi which in the Chamber’s view is not seriously different and of Ruzhdi Karpuzi and Avdullah Puka and also despite what was said by Haradin Bala in his unsworn opening statement 646 There is also other evidence that Haradin Bala was in Llapushnik Lapusnik after the end of May 1998 Dr Zeqir Gashi testified that he met Haradin Bala not only in the clinic but also in the kitchen of Gzim Gashi’s house 2212 The Defence for Haradin Bala submits that Haradin Bala worked in that kitchen 2213 However it is the evidence of Elmi Sopi that this kitchen for KLA soldiers was set up in that place only after the use of another common kitchen elsewhere in the village became too dangerous because of Serbian shelling This happened on 29 May 1998 2214 If this evidence is accepted it follows that Dr Zeqir Gashi’s sightings of Haradin Bala in the kitchen of Gzim Gashi’s compound too would not have commenced until after 29 May 1998 2207 2208 2209 2210 2211 2212 2213 2214 Ferat Sopi T 7052 Dr Zeqir Gashi T 5603-5604 Exhibit P217 Ferat Sopi T 7052 Dr Zeqir Gashi T 5605 Dr Zeqir Gashi T 5630-5631 5652-5653 Dr Zeqir Gashi T 5621-5622 Defence Final Brief para 834 Elmi Sopi T 6729-6730 257 Case No type Case # type date 647 As observed above the testimony of most of the witnesses for the Defence for Haradin Bala does not necessarily negate the evidence that Haradin Bala remained in Llapushnik Lapusnik after the end of May The only testimony that substantially contradicts that evidence was given by Elmi Sopi and Avdullah Puka and to a lesser degree of force that of Ruzhdi Karpuzi As noted above the Chamber has reservations about the honesty and reliability of the testimony of Avdullah Puka While the evidence of Elmi Sopi was apparently more persuasive for the reasons just given the Chamber has found it was erroneous on this issue So was that of Ruzhdi Karpuzi The necessary effect of the body of evidence of the victims in the prison camp which the Chamber has analysed earlier is that Haradin Bala was also in Llapushnik Lapusnik in June and July 1998 It is also the evidence of a KLA member L64 and is consistent with the evidence of Dr Zeqir Gashi Having weighed carefully the force and effect of this evidence the Chamber is further confirmed in its finding that the testimony relevant to this issue of Elmi Sopi and Ruzhdi Karpuzi is erroneous The Chamber finds that Haradin Bala did not leave Llapushnik Lapusnik in or just after the end of May 1998 He was present there also in June and July 1998 although it is not shown that he was there continuously in the period 648 Finally the Defence for Haradin Bala argues that Haradin Bala was in a poor medical condition and therefore physically unable to commit the crimes charged in the Indictment In particular it is contended that his physical condition would make it highly unlikely that he could have undertaken the physical exertion involved in the alleged beating of prisoners and the alleged walk to the Berishe Berisa Mountains on or about 26 July 1998 especially for the walk because it was in summer conditions 2215 Witnesses for the Defence for Haradin Bala testified that Haradin Bala was already of poor health before 1998 2216 Kadri Dugolli stated that Haradin Bala could not stand the sun and took an umbrella with him for protection 2217 Dr Fitim Selimi testified that when Haradin Bala came to his clinic in Shale Sedlare Bala was generally weak and complained about pain in his chest which in the Doctor’s view was related to angina pectoris Haradin Bala was taking medications 2218 Dr Fitim Selimi recommended Haradin Bala to engage only in light physical exercise to avoid overexertion 2219 Dr Zeqir Gashi testified that Haradin Bala came to his clinic once or twice for a check-up He complained of high blood pressure and arrhythmic heartbeat 2220 In the testimony of Dr Zeqir Gashi Haradin Bala showed him the medication he was taking which was a beta blocker Dr Zeqir Gashi stated that this medication regulates the work of 2215 2216 2217 2218 2219 2220 Defence Final Brief para 845 Ali Thaqi T 7024-7026 Kadri Dugolli T 7007-7009 Kadri Dugolli T 7012 Dr Fitim Selimi T 6949-6950 Dr Fitim Selimi T 6951 Dr Zeqir Gashi T 5621-5622 258 Case No type Case # type date the heart in case of arrhythmia 2221 Further there is also a countervailing consideration Even though Haradin Bala experienced a blood pressure problem and an arrhythmic heartbeat since before 1998 nevertheless he joined the KLA and served in it as a soldier before during and for well after the events alleged in the Indictment While for much of the time he was engaged in lighter duties 2222 during his KLA service he also participated in actual military action 2223 This indicates either or both that despite his physical condition he was able to engage in the demanding physical activities of combat or that he did not always hold back from physical demands of KLA service because of his physical condition In the Chamber’s finding the evidence on the matter does not demonstrate that Haradin Bala would not have been physically capable of engaging in the acts alleged in the Indictment On the contrary in the Chamber’s finding he was capable of the acts alleged but by doing so he would have been acting unwisely because it involved some risk of a more serious incident involving his heart This risk may have diminished the preparedness of Haradin Bala to engage in the most strenuous of those acts This will be taken into account in the examination of the evidence relating to the commission of those acts by Haradin Bala 649 The evidence relevant to whether it has been established that the Accused Haradin Bala was a KLA guard in the prison camp at Llapushni Lapusnik in the period relevant to the Indictment especially that relating to identification by victims and others the alibi and the health of Haradin Bala having been weighed both separately and in combination and having regard to all the circumstances the Chamber is persuaded and finds that the Accused Haradin Bala was indeed the KLA soldier and prison guard known as Shala who was active in the KLA prison camp in Llapushnik Lapusnik between 9 May 1998 and 25 or 26 July 1998 In the Chamber’s finding he is the guard known as Shala referred to in that context in the evidence of the eight victims discussed earlier in this Judgement and other victims and witnesses In the finding of the Chamber he is also the KLA guard known as Shala who with another known as Murrizi escorted prisoners from the prison camp into the nearby Berishe Berisa Mountains on 25 or 26 July 1998 as Serbian forces advanced on Llapushnik Lapusnik The evidence concerning Shala’s presence and activities in the Berishe Berisa Mountains is considered elsewhere With Murrizi and perhaps a third KLA soldier Haradin Bala was one of the armed KLA escorts who had charge of the last remaining group of prisoners in the Berishe Berisa Mountains on 25 or 26 July 1998 after some prisoners had been set free by Haradin Bala and Murrizi that being the time when most of this last remaining group of prisoners were killed 2221 2222 2223 Dr Zeqir Gashi T 5641 Skender Bylykbashi T 6975 Elmi Sopi T 6746-6747 259 Case No type Case # type date 650 The Chamber would note specifically even though it is necessarily the import of what has been said that the Chamber is not left with a reasonable doubt affecting any of these findings despite the possibilities for mistaken identifications by victims and others or by the alibi advanced by the Defence for Haradin Bala or by the health of Haradin Bala at the relevant time c Haradin Bala’s role i Participation in the commission of specific crimes 651 The Prosecution submits that Haradin Bala participated in a joint criminal enterprise involving the commission of the crimes alleged by the Indictment In particular the Prosecution alleges that he participated in the enforcement of the detention of Serbian civilians and perceived Albanian collaborators at the Llapushnik Lapusnik prison camp in their interrogation brutal and inhumane treatment physical and psychological assault torture and beatings as well as murder The Prosecution fsurther alleges that Haradin Bala planned instigated ordered and personally participated in the murder of ten Albanian civilians in the Berishe Berisa Mountains The Prosecution further alleges that Haradin Bala participated in the concealment of the murder of prison camp inmates through the burial of bodies and participated in efforts to keep the existence of the prison camp secret 2224 a Torture cruel treatment and murder in or around the Llapushnik Lapusnik prison camp Counts 4 6 and 8 652 It has been established that the deplorable conditions of detention at least in parts of the Llapushnik Lapusnik prison camp amounted to cruel treatment The Chamber has held that food and water were not provided regularly or adequately and that sanitary and sleeping facilities were grossly inadequate 2225 The conditions of detention were to a great extent dependent on acts or omissions of Haradin Bala The former prisoners concordantly testified that the person they knew as Shala and who the Chamber has found was Haradin Bala was a guard in the prison camp He had the keys It was Haradin Bala who on occasions opened the doors and who brought food to the inmates 2226 Haradin Bala had direct contact with the detainees and saw constantly at first hand the conditions in each part of the prison camp Haradin Bala would from time to time open the doors of the storage room and the Chamber infers the cowshed to let some fresh air in or allow inmates to walk outside 2227 However as has been established this irregular intervention did little 2224 2225 2226 2227 Indictment para 12 See supra paras 285-289 See supra paras 286-287 621 See supra paras 286-287 260 Case No type Case # type date to improve the conditions It was a case of too little too rarely Occasionally and irregularly he would supervise the emptying of the bucket in each of the storage room and cowshed which served as a toilet for all detainees 2228 In the beginning there was not even a bucket However this was not done frequently enough and the buckets overflowed In the cowshed at least chained detainees and those tied to each other were left with no option but to soil themselves in their clothing Haradin Bala did nothing to enable medical care for the many who were in need of it even though he knew that a clinic was nearby 2229 Haradin Bala personally participated thus through his omissions in the maintenance and enforcement of the conditions of detention to which the prisoners were subjected a material element of the crime of cruel treatment As those conditions were maintained over many weeks during which Haradin Bala frequently entered the rooms where prisoners were kept and at times provided assistance to them his failure to do so on numerous other occasions leaves the Chamber persuaded that he had an intent to maintain those conditions of detention Accordingly in the Chamber’s finding it has been established that Haradin Bala committed together with other persons the crime of cruel treatment 653 The Chamber has found in respect of some of the acts of mistreatment and killing charged in the Indictment that the elements of the crimes of cruel treatment torture and murder as violations of the laws or customs of war under Article 3 of the Statute have been established In some of these cases there is no evidence of Haradin Bala’s direct involvement in the commission of the crime The evidence demonstrates however that Haradin Bala took action which was to some extent related to the commission of others of those crimes 654 The first incident relates to the mistreatment of L06 which the Chamber has found to constitute cruel treatment and torture 2230 In the testimony of L10 L06 was taken out of the room by Shala who in the finding of the Chamber was the Accused Haradin Bala and when L06 was brought back he said he had been beaten L06 himself stated that Haradin Bala only untied his chains on the day preceding the night when he was beaten and that he was taken out of the room and back by other persons 2231 The accounts given by L06 and L10 differ as far as the role played by Haradin Bala is concerned Because of L06’s direct involvement in the incident the Chamber is not prepared to prefer L10’s account as more reliable in this particular respect The Chamber proceeds therefore on the basis that the only action of Haradin Bala that might relate to the beating of L06 was untying L06’s chains a few hours before the mistreatment However the link between his action and the actual mistreatment is far from clear Even though the name of Shala was 2228 2229 2230 See supra para 286 As established above Haradin Bala himself visited the clinic of Dr Zeqir Gashi located in Llapushnik Lapusnik See supra para 648 See supra paras 305-306 261 Case No type Case # type date mentioned by L06 in the context of the particular incident of beating it has not been established whether the untying of L06’s chains was in any way related to the subsequent beating For these reasons the Prosecution has not established that Haradin Bala participated in any way in the actual beating of L06 655 L10 testified to being mistreated by Shala who was identified as Haradin Bala As found earlier in this decision Haradin Bala pointed a gun at L10’s head and threatened him 2232 The incident has been found to constitute the offence of cruel treatment The direct participation of Haradin Bala in the commission of this crime has been established He can only have acted with the intent of inflicting mental suffering upon L10 Accordingly the Chamber finds Haradin Bala responsible for having perpetrated the crime of cruel treatment in this instance 656 A further incident involving Haradin Bala relates to the mistreatment of L04 which the Chamber has found constituted cruel treatment 2233 L04 stated that Shala was told by Tamuli to untie L04 As established earlier L04 was then blindfolded taken out of the room and beaten by individuals L04 believed to be Tamuli and Qerqiz 2234 Shala had an automatic weapon and was guarding the door He however did not personally join in the beating of L04 2235 The Chamber accepts the evidence of L04 on the circumstances of his mistreatment It finds that Haradin Bala did not inflict physical suffering on L04 He did however provide practical assistance to the direct perpetrators of the offence of cruel treatment He better ensured there was no prospect of L04 escaping from the beating or of the beating being seen or disrupted by third persons In the Chamber’s finding Haradin Bala’s involvement had thus a “substantial effect on the commission”2236 of the crime of cruel treatment In the circumstances Haradin Bala could not have been ignorant of the intentions of the direct perpetrators He certainly knew that a crime was being committed Nonetheless he remained and so he facilitated its commission He is therefore responsible for aiding the crime of cruel treatment in respect of L04 2237 657 As indicated earlier in this decision Shala identified in the evidence as Haradin Bala participated directly in another incident regarding L04 and L10 Haradin Bala forced L04 and L10 as well as another individual to bury the bodies of three persons including Agim Ademi There are some differences between the detail of the accounts of that event given by L10 and L04 They are nonetheless consistent with respect to the essential features of what occurred especially the conduct 2231 2232 2233 2234 2235 2236 2237 See supra para 304 See supra para 299 See supra paras 311 313 See supra para 311 L04 T 1175-1176 See supra para 517 See elebi i Trial Judgement para 842 262 Case No type Case # type date of Haradin Bala to whom both witnesses referred as Shala Shala blindfolded them and took them in a car to the place where they were required to dig a grave L04 and L10 and another individual received a pickaxe and shovels with which they carried out the task given to them by Shala They buried three bodies in the hole 2238 Shala warned them that if they said anything about it they would be shot 2239 As discussed earlier this incident caused psychological suffering of L04 and L10 which in the Chamber’s finding in the circumstances amounted to cruel treatment The physical perpetration of the crime by Haradin Bala has been established Haradin Bala must have been aware of the substantial likelihood that psychological suffering would be inflicted as a result of forcing L04 and L10 to bury the bodies of fellow detainees especially given the apparent injuries to and condition of the bodies Haradin Bala is accordingly responsible for having directly perpetrated that crime 658 Two incidents of mistreatment of L12 have been established The first one occurred upon his arrival at the prison camp In the Chamber’s finding Haradin Bala referred to in L12’s evidence as Shala chained L12 to the wall and beat him with a stick until L12 lost consciousness As has been established even though the evidence does not reveal that Haradin Bala was unable to engage in strenuous activities such as a prolonged beating of a person it is of relevance that his ability to do so was adversely affected 2240 The evidence concerning the role Haradin Bala played in this incident is however consistent and persuasive The evidence of L12 as the victim of the incident is consistent with that of L04 who witnessed the incident and confirmed the length and effect of the beating Haradin Bala thus physically perpetrated the offence of cruel treatment in this case despite his state of health The circumstances of the incident and in particular the severity and duration of the beating leave the Chamber satisfied that Haradin Bala acted with the intent to inflict physical suffering on L12 Haradin Bala is therefore in the finding of the Chamber responsible for having committed the offence of cruel treatment in connection with this incident In the other case of mistreatment of L12 established earlier in this decision L12 was beaten in a barn Haradin Bala blindfolded L12 and brought him to a barn where the beating took place 2241 L12 testified that Shala was present during the incident 2242 The Chamber accepts L12’s evidence however that Haradin Bala’s involvement in the incident was limited to bringing L12 to the perpetrators and being present while the beating was taking place The Chamber finds that by bringing L12 to the barn and being present throughout the beating by others Haradin Bala did contribute to the commission of the crime substantially enough to regard his participation as aiding 2238 2239 2240 2241 See supra paras 299 312 and 399-401 L10 T 2946 See supra para 648 See supra para 316 263 Case No type Case # type date the offence committed by the direct perpetrators In the circumstances Haradin Bala must have become aware at least at the time of the beating that the assailants were committing a crime and of their state of mind Accordingly he possessed the mens rea required for aiding and abetting As established earlier this incident constitutes the elements of both cruel treatment and torture However as will be discussed shortly the Chamber can enter a conviction only in respect of the charge of torture Count 4 659 Reference to Haradin Bala has been made in the evidence concerning the mistreatment of Emin Emini L10 testified that Shala together with two other men took Emin Emini out of the storage room for the purpose of beating him However for reasons discussed earlier despite this evidence it is not possible to determine the identity of the individuals who took Emin Emini out of the storage room 2243 Nor does the evidence suggest that Haradin Bala himself beat Emini 660 As has been indicated the evidence concerning the mistreatment and death of Fehmi Xhema is affected by a number of discrepancies In particular it is not established whether Haradin Bala was among those who took Fehmi Xhema out of the storage room and brought him back after the beating As discussed earlier the Chamber assessed that both L06 and L10 who gave differing accounts of mistreatment of Fehmi Xhema were honest witnesses 2244 In the absence of other evidence on the matter there are no grounds for giving preference to either of these accounts The Chamber therefore finds in favour of the Accused Haradin Bala that he did not participate in the mistreatment of Fehmi Xhema either directly or by providing assistance 661 The accounts given by L06 and L10 identify the involvement of Haradin Bala in the removal of what they believed was the dead body of Fehmi Xhema Both L06 and L10 stated that Shala and two other soldiers came to the storage room to take away the body of Fehmi Xhema 2245 The accounts differ however as to the time of that event L06 testified that Fehmi Xhema whom he believed to be dead at that time remained in the room for three days before he was taken away 2246 L10 stated that the body was removed on the day following day after the critical beating 2247 The Chamber is persuaded despite these differences that one of the three soldiers who removed the near dead Fehmi Xhema from the storage room was Haradin Bala As indicated earlier Fehmi Xhema was subsequently shot 2248 The evidence however does not make it possible 2242 2243 2244 2245 2246 2247 2248 L12 stated that Shala should know what the individuals who beat L12 were talking about because he was there L12 T 1808 See supra para 412 See supra paras 327-331 L06 T 1013 L10 T 2942 L06 T 1013 L10 T 2942 See supra para 336 264 Case No type Case # type date to establish the identity of those who shot Fehmi Xhema It has not been established that those were the same people who removed Fehmi Xhema from the storage room for the last time Moreover the time of the death of Fehmi Xhema cannot be determined It is therefore unclear whether the purpose of removing Fehmi Xhema from the storage room by the three soldiers including Haradin Bala was his immediate execution In view of the absence of evidence on these issues the Chamber is not persuaded that Haradin Bala participated in the shooting of Fehmi Xhema Nor has it been established that he provided assistance to the murderers 662 As discussed earlier Haradin Bala ordered three detainees including L04 and L10 to bury three bodies including the body of Agim Ademi There is no evidence however indicating that he directly participated in the killing of any one of the three It could be inferred from the established circumstances of the incident that Haradin Bala was aware that Agim Ademi he had been shot It is the evidence that a gunshot injury was visible As a prison guard he must also have known that Agim Ademi had been detained in the prison camp There is nothing to suggest however that Haradin Bala had agreed to provide assistance at the time of the planning preparation or execution of the crime 2249 or in respect of the other two detainees Even though the probability of such a prior agreement is clear it could also be reasonably inferred from the evidence that Haradin Bala learned about the killings afterwards and was only ordered to remove the bodies from the prison camp In the Chamber’s finding the evidence does not establish that Haradin Bala aided the commission of murder of Agim Ademi or of the other two detainees 663 As indicated earlier the Prosecution suggested that the bodies L04 and L10 were forced to bury together with the body of Agim Ademi were those of Jefta Petkovi and @vonko Marinkovi 2250 The Chamber has found earlier that the evidence does not support the contention that the body of Jefta Petkovi whose murder was established was one of those L04 and L10 buried on the order of Haradin Bala Accordingly no link has been established between the murder of Jefta Petkovi and the Accused Haradin Bala b Murder in the Berishe Berisa Mountains Count 10 664 The Chamber has held that Haradin Bala and Murrizi and possibly a third KLA soldier were directly involved in shooting at the remaining small group of prisoners who were among those they had forced to march into the Berishe Berisa Mountains on 25 or 26 July 1998 and who remained after the first group was released 2251 It has been established that nine of those prisoners 2249 2250 2251 See Blagojevi Trial Judgement para 731 See supra para 390 See supra para 454 265 Case No type Case # type date were executed that day in a location in the Berishe Berisa Mountains Haradin Bala participated physically in the material elements of the crime of murder jointly with Murrizi and perhaps with a third KLA soldier As discussed earlier 2252 in view of the circumstances of the killing and the position of the victims the Chamber has found that Haradin Bala acted with the intent to commit murder when he participated in the killing of these victims He is responsible for the murder of the nine prisoners as a direct perpetrator ii Participation in a joint criminal enterprise 665 It has been found in the preceding sections that the individuals detained in the Llapushnik Lapusnik prison camp were kept in deplorable conditions and some of them were subjected to mistreatment The Prosecution submits that the crimes enumerated in the Indictment were within the objective of a joint criminal enterprise which came into existence before May 1998 and continued until at least August 1998 The Prosecution alleges that the purpose of that criminal enterprise was to target Serbian civilians and perceived Albanian collaborators for intimidation imprisonment violence and murder 2253 666 There is no direct evidence however to establish either the existence or the scope of the alleged criminal enterprise At the most there is a possibility of inferring from the existence of the prison camp that there was a design or plan by someone or some group probably in the KLA to detain a number of individuals To the extent that they are revealed by the evidence the reasons for the detention of those persons who were detained vary from case to case but in the vast majority of cases are unclear or remain unknown The fact that the prison camp functioned for at least six weeks2254 and over thirty people were detained there 2255 could suggest that its operation relied on the co-operation of a certain number of persons The Indictment only identifies the three Accused as participating in the joint criminal enterprise but goes on to include in general language other KLA soldiers and guards at the Llapushnik Lapusnik prison camp and other KLA soldiers participating in the arrest of Serbian civilians and perceived Albanian collaborators 2256 The evidence shows that there were a number of people involved in the commission of the criminal acts established in this decision There were at least two guards Haradin Bala and the person known as Murrizi 2257 The person whom some witnesses believed to be Qerqiz participated in beatings and interrogations 2258 L96 referred to five or six KLA soldiers who beat Shaban Hoti 2259 and a soldier 2252 2253 2254 2255 2256 2257 2258 See supra paras 461 466 471 476 482 487 492 501 and 506 Indictment paras 7-8 See supra para 282 See supra paras 243-279 319-446 Indictment para 9 See supra para 276 See supra para 311 266 Case No type Case # type date whom L96 believed to be called Avdullah who escorted L96 to the toilet 2260 L06 mentioned Ramadan Behluli and Ali Gashi as his assailants 2261 Witnesses also testified to the presence of masked soldiers in the camp Given the nature of the available evidence for reasons that are given elsewhere in this Judgement the Chamber is not in a position to determine the identity of those involved in the operation of the prison camp apart from the Accused Haradin Bala There is absolutely no evidence to establish how or on whose decision the prison camp came to be established or how or on whose orders Haradin Bala took up duties at the camp While the evidence could support an inference on one possible view that there must have existed some form of joint criminal enterprise which was comprised of persons unknown who were members of the KLA that is so general that it cannot provide a sufficient categorisation to identify the participants in the joint criminal enterprise 2262 667 With regard to the different crimes committed against different detainees in the camp it cannot be ruled out on the available evidence that some of the perpetrators of the crimes established in or in connection with the prison camp did so merely as visitors who came to the camp on an ad hoc basis and while there for personal reasons such as revenge mistreated or killed old enemies It is true that such “opportunistic visitors” could also have become participants in the alleged joint criminal enterprise by contributing to the overall effect of the prison camp However in order to prove their participation it would be necessary to establish that their contribution to the pursuance of the common purpose of the alleged joint criminal enterprise was substantial 2263 In the present case that is not possible on the available evidence to infer that all the crimes relating to the prison camp were committed by participants in a joint criminal enterprise In consequence it cannot be determined with sufficient certainty that the commission of these crimes was envisaged within the alleged joint criminal enterprise 2264 668 Further it is open on the evidence that at the relevant time some KLA members detained people for reasons other than giving effect to the KLA policy of combating collaboration with the Serbian authorities As discussed earlier there were for example instances of abductions in which personal revenge of individual KLA members was the motivating factor 2265 It cannot be ruled out 2259 L96 T 2312-2314 See supra para 424 L96 T 2309 2261 See supra para 304 2262 See Br anin Trial Judgement para 346 Prosecutor v Milorad Krnojelac Case No IT-97-25 Decision on Form of Second Amended Indictment 11 May 2000 paras 16-17 2263 See Kvočka Appeals Judgement paras 97 and 599 2264 In its rulings concerning joint criminal enterprise the Appeals Chamber referred to crimes committed “by one or more ₣participants in the common designğ” and “other members of the group” thereby making it clear that only crimes committed by one or more participants in such an enterprise may give rise to liability of other participants see for example Tadi Appeals Judgement para 220 Kvočka Appeals Judgement para 99 2265 See supra para 216 Susanne Ringgaard Pedeersen T 3532 2260 267 Case No type Case # type date therefore that in some cases the perpetrators of the crimes committed in or in connection with the prison camp may have been driven by such motives 2266 This heightens to some extent the probability that persons involved in the operation of the camp or “opportunistic visitors” to the prison camp committed crimes for personal purposes such as retribution It thus cannot be established with sufficient certainty that these crimes were in fact committed in pursuance of any KLA policy or plan of targeting Serbian civilians and perceived Albanian collaborators 669 In the absence of evidence demonstrating that a group of individuals whose identities could be established at least by reference to their category as a group in the sense identified in the jurisprudence furthered a common plan and given the lack of evidence as to the scope of any such plan the principal elements of joint criminal enterprise have not been established The Prosecution case is too deficient in factual information to enable the Chamber to be satisfied beyond reasonable doubt of the existence of a joint criminal enterprise in which Haradin Bala became a participant That being so there is no point in further consideration of Haradin Bala’s role in the camp and whether this could demonstrate that he joined in some alleged joint criminal enterprise It has not been established by the Prosecution that a joint criminal enterprise existed as alleged d Conclusions 670 Haradin Bala has been identified as a guard in the prison camp known as Shala He performed this role throughout the period of the existence of the prison camp and participated in the commission of a number of crimes Haradin Bala directly perpetrated the crime of cruel treatment by his role in the maintenance and enforcement of the deplorable conditions of detention in parts of the prison camp Further the Chamber has found that by threats with gun to the head of L10 by forcing L04 and L10 to bury the mutilated bodies of three fellow detainees and by beating L12 Haradin Bala also perpetrated the crime of cruel treatment Further Haradin Bala has also been found to have aided the crime of torture committed by others against L12 and another incident of cruel treatment committed by others against L04 Haradin Bala is also directly responsible for the murder of nine detainees in the Berishe Berisa Mountains nearby the prison camp 2266 The Chamber points out that its finding that the family dispute referred to by the Defence for Haradin Bala has no bearing on the events in the prison camp related specifically and solely to that dispute see supra para 31 There may have been other disputes involving persons other than the Accused Haradin Bala 268 Case No type Case # type date 3 Responsibility of Isak Musliu a Was Isak Musliu identified at the Llapushnik Lapusnik prison camp 671 The Prosecution alleges in the Indictment that from May to 26 July 1998 Isak Musliu aka Qerqiz was commander and at times prison guard of the Llapushnik Lapusnik prison camp and personally participated in the enforcement of the detention of prisoners their interrogation their murder and the brutal and inhumane treatment inflicted upon them 2267 672 In the course of the trial a number of Prosecution witnesses have purported to identify Isak Musliu in the Llapushnik Lapusnik prison camp at the time covered by the Indictment Two of the witnesses i e L04 and L10 purported to identify a man they saw wearing a mask as Isak Musliu Another witness L12 did not even see Isak Musliu but only heard about him while being beaten None of these three witnesses were capable of identifying Isak Musliu when shown photo spreads which included Isak Musliu’s photograph Only one witness L96 gave evidence of seeing Isak Musliu without a mask in the Llapushnik Lapusnik prison camp at the time of the events L96 testified that he saw Isak Musliu twice when he arrived at the Llapushnik Lapusnik prison camp and a couple of days later when he was allegedly beaten by Isak Musliu himself On both occasions Isak Musliu was not wearing a mask The Defence for Isak Musliu argues that these witnesses were mistaken in their identification of Isak Musliu at the Llapushnik Lapusnik prison camp and submits that Isak Musliu never knew of and did not participate in the establishment or running of such a prison 2268 Isak Musliu did not give evidence in his defence Of course this is his right and no adverse inference has been drawn from his decision 673 L04 was in the Chamber’s finding detained in the cowshed in the Llapushnik Lapusnik prison camp from around 28 June to 25 or 26 July 1998 2269 It is L04’s evidence that in the course of his detention he and other prisoners detained there were beaten by a man called Qerqiz 2270 Every day with the exception of the last three days of L04’s detention i e approximately 24-26 July 1998 2271 Qerqiz would take the prisoners including L04 out of the cowshed and beat them 2272 The prisoners would return badly injured on some cases they would not return 2273 In one instance L04 testified that Tamuli and Shala came to the cowshed blindfolded him and took 2267 2268 2269 2270 2271 2272 2273 Indictment paras 2 and 11 Defence Final Brief paras 993-994 1036-1043 See supra para 279 L04 T 1172-1175 L04 testified that Qerqiz beat the prisoners ever day night of his stay there except for the last week T 1173-1174 During cross-examination the witness rectified his statement and said that Qerqiz did not beat the prisoners the last three days that he was held in detention T 1271-1272 L04 T 1139-1140 1172-1175 L04 T 1173-1177 1187 269 Case No type Case # type date him to a room where Qerqiz was waiting He gave evidence that Qerqiz threw him on the floor kicked him and twisted his arm 2274 L04 testified that up until today he has pain to his right leg and arm due to Qerqiz’s beating 2275 674 L04 testified that he learned that Qerqiz was Isak Musliu through a fellow detainee at the Llapushnik Lapusnik prison camp who came from Isak Musliu’s home town Recak Racak 2276 Significantly L04 never testified to having seen Isak Muliu’s face on any occasion 2277 On the contrary L04 stated that throughout his detention in the Llapushnik Lapusnik prison camp the man that he learnt to be Isak Musliu always wore a mask 2278 The only identifying features of Qerqiz provided by L04’s in-court testimony was that he was a medium build man of approximately 170 centimetres tall and that he regularly wore a black uniform 2279 675 The Chamber notes that there is no confirmation of L04’s identification of Isak Musliu from the detainee from which L04 says he learned that the perpetrator was Isak Musliu That detainee although specifically identified by L04 was not called to testify There is therefore neither confirmation of L04’s hearsay evidence that this detainee named Isak Musliu nor if that did occur is there any evidence of the basis for the detainee’s identification of Isak Musliu Additionally L04 gave evidence that on all occasions the man he identifies as Qerqiz was wearing a mask Not surprisingly L04 did not identify Isak Musliu in the photo spread shown to him by an UNMIK investigator Anargyros Kereakes on 16 January 2002 He said of the photograph of Isak Musliu he was shown that he “looks familiar as being at Llapushnik but ₣I’mğ not sure ”2280 Throughout his testimony L04 was unable to provide a description of his facial features because Qerqiz always wore a mask and only gave a limited physical description of the man he thought was Qerqiz In this regard he says “he is medium build His dimensions are somewhere around 1 metre 70 centimetres This is how I would describe him” 2281 No further description is provided with the exception of his uniform L04 gave evidence that throughout his detention in Llapushnik Lapusnik Qerqiz wore a black uniform There is evidence that the uniform typically used by the military police of the KLA was black 2282 The evidence does not however enable a finding that Isak Musliu held a position in the military police at the time of L04’s detention at the Llapushnik Lapusnik prison camp from 28 June until 25 or 26 July 1998 Indeed the evidence is not clear when the KLA military police was formed in the area concerned In addition there is 2274 2275 2276 2277 2278 2279 2280 2281 L04 T 1175-1176 L04 T 1206-1207 L04 T 1173 124341251 1267-1268 L04 T 1174 L04 T 1173-1174 L04 T 1174 1246-1247 L04 T 1165 L04 T 1174 270 Case No type Case # type date testimony that in May 1998 many KLA soldiers wore dark coloured shirts and trousers as there were not sufficient KLA uniforms 2283 The evidence of L04 therefore provides no reliable basis for a finding that Qerqiz was Isak Musliu or that Isak Musliu served in the Llapushnik Lapusnik prison camp 676 The Chamber is conscious that L04 did not mention Qerqiz or Isak Musliu in two of the three interviews he gave to investigative authorities regarding his detention in the Llapushnik Lapusnik prison camp In the interviews he gave to CCIU investigators dated 16 January and 13 March 2002 L04 did not refer to Isak Musliu’s or Qerqiz’s presence when describing the events in the Llapushnik Lapusnik prison camp L04 did mention Isak Musliu in a further interview with investigators on 20 March 2002 2284 No record of these interviews was tendered in evidence but L04 was cross-examined on some of the content of the interviews in court When asked why he did not mention Qerqiz’s involvement in the Llapushnik Lapusnik prison camp during the first two interviews L04 stated that he did not mention him as he was not questioned about such matters 2285 In the absence of any adequate evidence as to the length and detail of these two statements and the emphasis of their subject matter the Chamber is not able to form a view as to the reasonableness of the explanation given 677 L10 was in the Chamber’s finding detained in the Llapushnik Lapusnik prison camp from mid June to 25 or 26 July 1998 2286 It is his evidence that in the course of his detention in the Llapushnik Lapusnik prison camp a man named Qerqiz would come to the storage room where he and other prisoners were detained to mistreat the prisoners 2287 Elsewhere in this decision the Chamber has considered in some detail evidence of L10 concerning the treatment of L06 and Fehmi Xhema and also the evidence of L06 about the same incidents The Chamber will not repeat the details of this evidence here 2288 On both occasions described i e beating of L06 and removal of Fehmi Tafa from the storage room witness L10 testified that Qerqiz was masked 2289 Additionally when recounting the removal of Fehmi Tafa from the storage room L10 testified that it was at night and that he and the other prisoners in the storage room were sleeping when the two masked men entered the room He testified that he could see the two men only because of the flashlights that they were carrying 2290 The Chamber notes that L10 testified that Qerqiz was not only masked on the two occasions described above but he was always masked and he never saw his 2282 2283 2284 2285 2286 2287 2288 2289 Syleman Selimi T 2195-2196 Shukri Buja T 4145-4147 Ramadan Behluli T 2793-2794 Fatmir Limaj T 6091-6093 L04 T 1261-1262 L04 T 1261 See supra para 279 L10 T 2922-2927 See supra paras 326-338 L10 T 2937-2939 T 3048 271 Case No type Case # type date face in the course of his detention Although he does give a physical description of the man he thought was Qerqiz i e stocky not very tall wearing a camouflage uniform not black as described by L04 and carrying an automatic gun during cross-examination he acknowledged that he could not distinguish Qerqiz from the other soldiers at the camp because of the mask he wore 2291 It is L10’s evidence that the only reason that he identified the masked perpetrator as Qerqiz is because another soldier he says Shala addressed him as Qerqiz 2292 Later in his evidence L10 explains that he later learned that Qerqiz was Isak Musliu 2293 He did not however explain how and from whom he learned Qerqiz’s real or full name More remotely L10 says Emin Emini also once told him “this guy is from Racak” 2294 L10 therefore provides no evidence on which the Chamber can reliably conclude that the man at Llapushnik Lapusnik prison camp whom L10 says he then knew as Qerqiz is in fact Isak Musliu 678 L12 was also in the Chamber’s finding detained in the Llapushnik Lapusnik prison camp in the summer of 1998 2295 Unlike witnesses L04 and L10 who testified to having seen Qerqiz at the prison camp L12 only testified that he heard the pseudonym Qerqiz while detained there It appears from his evidence that on one occasion Qerqiz was mentioned by one of the individuals that beat him during his detention in the Llapushnik Lapusnik prison camp 2296 During an interview with UNMIK he was unable to identify Isak Musliu in a photo spread shown to him The photo spread contained a photograph of Isak Musliu 2297 When questioned in court whether he knew Qerqiz L12 stated “Yes I’ve heard the name but I don’t know who ₣…ğ the person was” 2298 The evidence of L12 therefore provides no basis upon which the Chamber could find that Isak Musliu was in the Llapushnik Lapusnik prison camp at the time of the events covered by the Indictment 679 L96 is the only witness who testified to having seen Isak Musliu in the Llapushnik Lapusnik prison camp without a mask The Chamber has already found that L96 had been detained in the storage room in the Llapushnik Lapusnik prison camp for about a week in July 1998 2299 In the course of his evidence L96 said he had twice seen Isak Musliu in the Llapushnik Lapusnik prison camp 2290 2291 2292 2293 2294 2295 2296 2297 2298 2299 L10 T 2939 L10 T 2950 “Q Okay And just based on physical attributes if you couldn't see his face how could you distinguish Qerqiz from the other soldiers or people that you saw A I probably would not be able to tell because he was wearing a mask and a long time ₣hğas elapsed ” L10 T 2950-2951 3048 L10 T 2951 L10 T 3048 See supra para 279 L12 T 1808-1811 L12 T 1779-1780 L12 T 1811 See supra paras 279 307 272 Case No type Case # type date 680 He said the first occasion was around 17 or 18 July 1998 when L96 first arrived at the Llapushnik Lapusnik prison camp 2300 It is his evidence that Isak Musliu entered the storage room and ordered all the prisoners to stand up and give their names L96 offered the comment that he thought it was strange that Isak Musliu would ask the witness’ name as they knew each other very well 2301 L96 said that when he said his name Isak Musliu turned to him and said “where on earth ₣haveğ you been ₣ ğ” 2302 L96 recounts that on that occasion Isak Musliu had a black moustache and had grown a beard which was not very long a month old he was wearing a black shirt and a uniform with a PU military police insignia on it He also had a walkie-talkie and a revolver 2303 681 The second occasion in which L96 encountered Isak Musliu in the Llapushnik Lapunik prison camp occurred two days after his arrival at the prison camp 2304 L96 testified that Isak Musliu together with Murrizi and another soldier carrying a Kalashnikov rifle came to the room where L96 was detained to beat him 2305 L96 described that during the beating Isak Musliu with a karate move made the witness fall to the ground and then began kicking him “without any control on himself” He describes loosing consciousness because of the beating 2306 682 L96 testified that he saw Isak Musliu without a mask on both of these occasions 2307 He recognized the man described in the incidents as Isak Musliu as he personally knew him 2308 L96 also stated that he knew Isak Musliu’s pseudonym before he was taken to the Llapushnik Lapusnik prison camp for the same reason 2309 It was the evidence of L96 that he had known Isak Musliu since he was 12 as they lived in nearby villages 2310 He explained that it would have been impossible not to know him because of the vicinity of their villages 2311 However there was no other description of their association or even of any direct meeting The absence of any such evidence does not provide the Chamber with any reassurance about L96’s assertion of a childhood acquaintance The Chamber also notes that there is no confirmation of L96’s encounters with Isak Musliu and of his alleged beating in the prison camp by other prisoners detained in the storage room Several witnesses whom the Chamber is satisfied were detained in the storage room at the relevant time said nothing as to the presence of a person named Isak Musliu or known as Qerqiz in 2300 2301 2302 2303 2304 2305 2306 2307 2308 2309 2310 2311 L96 T 2306-2308 2573 L96 T 2308 L96 T 2307-2308 L96 T 2306 L96 T 2322 2329-2330 2573 L96 T 2329-2330 2516 L96 T 2330 L96 T 2573 L96 T 2247-2249 L96 T 2566 L96 T 2248-2249 L96 T 2248-2249 273 Case No type Case # type date the Llapushnik Lapusnik prison camp L96’s evidence in this regard therefore remains unsupported 683 The evidence of L96 about the two encounters with Isak Musliu while he was detained in the Llapushnik Lapusnik prison camp i e from 17 to 25 or 26 July 1998 may well be inconsistent with evidence that Isak Musliu was perhaps from 19 July to 24 July in Rahovec Orahovac assisting in the KLA operations there In this respect the Chamber notes that while on 1 March 2005 the Defence for Isak Musliu filed an alibi notice pursuant to Rule 67 A i a of the Rules raising this absence 2312 the Defence for Isak Musliu chose not to call any witnesses at the trial There is nevertheless evidence from former KLA members called as witnesses for the Prosecution which suggest that Isak Musliu was not in Llapushnik Lapusnik for at least part of L96’s detention Ruzhdi Karpuzi a soldier in the Çeliku 3 unit testified that four or five days before the fall of the Llapushnik Lapusnik gorge which was on 25 and 26 July 1998 Qerqiz together with other soldiers of the Çeliku 3 unit left Llapushnik Lapusnik to assist other KLA units in the fighting in Rahovec Orahovac 2313 Elmi Sopi testified to seeing Isak Musliu at the Rahovec Orahovac crossroads either on 18 or 19 July 1998 2314 Elmi Sopi and other KLA soldiers from the Pellumbi unit had gone to Rahovec Orahovac to assist the civilian population because of a Serbian attack 2315 Leaving aside issues relating to his reliability L64 testified that on 18 or 19 July 1998 Qerqiz and other soldiers including L64 went to Rahovec Orahovac to help the civilian population because of the Serbian attack 2316 L64 also testified that after their return from Rahovec Orahovac Qerqiz and Tamuli travelled back there every day to look for two soldiers who had gone missing It is L64’s evidence that in this period Qerqiz was not in Llapushnik Lapusnik regularly 2317 While the Chamber is not able to accept from this evidence that it is established that Isak Musliu aka Qerqiz was not at Llapushnik Lapusnik at the times that L96 says he saw Isak Musliu in the prison camp and saw him twice without a mask nevertheless this body of evidence cannot be dismissed as wrong The Chamber is left therefore with a reservation about the honesty or the reliability of this aspect of the evidence of L96 684 The Chamber is conscious that L96 did not refer to Isak Musliu’s presence by that name or by the pseudonym Qerqiz in Llapushnik Lapusnik when interviewed by Serbian authorities or later by CCIU investigators in August 1998 2318 Perhaps more significantly L96 did not describe being beaten by Isak Musliu When cross-examined about these omissions L96 stated that although he 2312 2313 2314 2315 2316 2317 Alibi Notice of Isak Musliu Submitted Pursuant To Rule 67 A i a 1 March 2005 Ruzhdi Karpuzi T 3242 Elmi Sopi T 6754 Elmi Sopi T 6753-6754 L64 T 4533-4537 L64 T 4540 4549 274 Case No type Case # type date had given a “detailed and careful” account of events the interviews focused on the killings that took place during his detention and not on the beatings 2319 The Chamber also notes that during the interview with the Serbian authorities L96 does mention Mulsi Musliu’s participation in a killing at the Llapushnik Lapusnik prison camp 2320 It is the case however that this man bearing the same surname as Isak Musliu was in reference to a killing It did not however lead to any reference to Isak Musliu and his participation in different events that occurred in the Llapushnik Lapusnik prison camp while L96 was detained there 2321 In the Chamber’s impression the content and circumstances of these two interviews does lend some support for the submission of the Prosecution that these interviews were preliminary short and incomplete with an apparent focus on killings that had occurred 2322 685 L96 had however identified Isak Muliu on a photo spread and identified him in the court room In February 2002 in the course of an interview with UNMIK investigators L96 was shown a photo spread of KLA members 2323 The photos included one photograph of Isak Musliu L96 testified that it was not difficult to identify Isak Musliu in the photo 2324 L96 however stressed that in the photograph Isak Musliu appeared clean shaven whereas in the Llapushnik Lapusnik prison camp he had a beard and a moustache 2325 Apart from the suggestion made by L96 himself that he knew Isak Musliu before the events there is also evidence that before identifying the photograph of Isak Musliu in February 2002 L96 had previously been shown a photograph of Isak Musliu during an interview in August 2001 with the UNMIK investigator Anagyros Kereakes 2326 As discussed elsewhere in this decision the August 2001 viewing of a photograph may have increased the chances of a mistaken identification in 2002 Further because of the 2001 and 2002 viewings of a photograph and because it was made of an accused in a courtroom setting there is need for considerable care and caution by the Chamber in assessing the reliability of the identification This gives rise to the issue whether the February 2002 identification was influenced by the photograph he had seen in August 2001 The dock identification of Isak Musliu by L962327 may be affected by the same consideration Further as discussed elsewhere in this Judgement 2328 in-court identifications must be approached with considerable caution given the suggestiveness of the environment in which they are conducted 2318 2319 2320 2321 2322 2323 2324 2325 2326 2327 2328 L96 T 2393 L96 T 2393 2549-2550 L96 T 2550 Defence Final Brief paras 264-270 Closing Arguments T 7271 L96 T 2366-2367 Exhibit P103 L96 2369-2370 Exhibit P103 L96 2369-2370 Exhibit P103 L96 T 2557 L96 T 2573 See supra para 18 275 Case No type Case # type date 686 L64 testified that he went to the Llapushnik Lapusnik prison camp on several occasions at the time relevant to this case 2329 It is his evidence that Isak Musliu aka Qerqiz was entitled to enter the prison camp Although he recalls seeing him enter two or three times he never saw him in the prison camp 2330 L64 indicated however that on one occasion at the end of June 1998 Qerqiz entered the prison camp wearing a mask and took it off when he came out 2331 There is no other evidence which confirms or denies this aspect of L64’s evidence 687 Thus it is the case that the only witness who purports to have identified Isak Musliu inside the Llapushnik Lapusnik prison camp is L96 In addition to the particular concerns which have just been discussed about the evidence of L96 and L64 on a much general basis as discussed in some detail elsewhere in this decision 2332 the Chamber is not able to accept the credibility and reliability of the evidence of either L96 or L64 unless that evidence is independently confirmed in some material particular For these reasons the Chamber is unable to be satisfied to the required degree that it can accept the evidence of either or both L96 and L64 that Isak Musliu was in the prison camp in Llapushnik Lapusnik in the respective circumstances they have described 688 By virtue of the above the Chamber finds that all allegations that Isak Musliu personally participated in the operation of the Llapushnik Lapusnik prison camp fall away It has not been established that Isak Musliu planned instigated ordered committed or otherwise aided and abetted any of the crimes charged in the Indictment b Did Isak Musliu hold a position of command and control over the KLA soldiers in the Llapushnik Lapusnik prison camp 689 It is alleged in the Indictment that in the capacity of a commander of the KLA in the Llapushnik Lapusnik area and the Llapushnik Lapusnik prison camp 2333 Isak Musliu exercised both de jure and de facto command and control over KLA soldiers conducting the Llapushnik Lapusnik prison camp and had the authority to discipline and punish his subordinates 2334 The Defence for Isak Musliu submits that although there is no dispute at trial that Isak Musliu was the commander of Çeliku 3 unit there is dispute as to whether he was the overall commander in Llapushnik Lapusnik and a commander at the Llapushnik Lapusnik prison camp The Defence for Isak Musliu submits that Isak Musliu as commander of the Çeliku 3 unit had command over the five fighting positions of Çeliku 3 but not over other units operating in or 2329 2330 2331 2332 2333 2334 L64 T 4444 L64 T 4464-4465 L64 T 4464-4465 See supra paras 26 and 28 Indictment para 2 Indictment paras 14-17 21 25-26 28-32 276 Case No type Case # type date around the village of Llapushnik Lapusnik 2335 In particular in the Defence submission he had no knowledge of or involvement in the Llapushnik Lapusnik prison camp nor did he have command over the KLA soldiers alleged to have performed functions therein 2336 i Çeliku 3 unit 690 L64 is the only witness to have testified about the establishment of the Çeliku 3 unit Other witnesses confirmed its existence however and its location in the Llapushnik Lapusnik village at the relevant time It is L64’s evidence that Çeliku 3 unit was created after Serbian forces attacked Llapushnik Lapusnik on 9 May 1998 2337 L64 a former Çeliku 3 soldier testified that on 9 May 1998 when the Serbian forces attacked Llapushnik Lapusnik all KLA units in the area including the units from Klecke Klecka and Likofc Likovac went to Llapushnik Lapusnik to try to protect the civilian population He said that after the fighting on 9 May 1998 the KLA soldiers that had participated in the fighting met to discuss the setting up of a unit in Llapushnik Lapusnik to protect the civilian population from further Serbian attacks During the meeting Fehmi Ladrovci announced that the unit in Llapushnik Lapusnik would be called Çeliku 2338 L64’s evidence is that a couple of days later the Accused Fatmir Limaj told the soldiers that the unit would take the name of Çeliku 3 2339 691 There is some confirmation of this evidence in that several witnesses located the Çeliku 3 unit in Llapushnik Lapusnik at times following 9 May 1998 specifically in the area that lies to the south of the Peje Pec-Prishtina Pristina main road 2340 It is also L64’s evidence that subsequent to the establishment of the Çeliku 3 unit five Çeliku 3 fighting positions were formed in the area that lies south of the Peje Pec-Prishtina Pristina road With the exception of position 1 the exact location of the other four fighting positions of Çeliku 3 is somewhat inconsistently described in L64’s evidence Position 1 otherwise known as Guri or Big Guri meaning “Stone” was approximately 400 metres to the south of the Peje Pec-Prishtina Pristina road 2341 There is a large natural stone formation at the position L64 testified that just after the formation of Çeliku 3 several soldiers including himself moved from position 1 to position 2 in order to observe the movement of Serbian forces in Komoran Komorane 2342 This suggests that position 2 is closer to the Peje Pec-Prishtina Pristina road than position 1 and therefore to the north-east of fighting 2335 2336 2337 2338 2339 2340 2341 2342 Closing Arguments T 7526 Closing Arguments T 7526 L64 T 4355-4356 L64 T 4353-4355 L64 T 4353-4356 4369 The area concerned lies on the southern side of the road L64 T 4350 L64 T 4375-4380 L64 T 4350-4352 277 Case No type Case # type date position 1 Differently later in his evidence L64 testified that the Çeliku 3 fighting positions starting from position 1 i e “Guri” developed to the south in the direction of the Berishe Berisa Mountains 2343 Further during his testimony L64 was asked to identify in an aerial map of the Llapushnik Lapusnik area the five fighting positions of the Çeliku 3 unit The positions identified are not to the south-west of position 1 but instead are located to the south-east of position 1 The positions marked are in the general vicinity of the location of the Llapushnik Lapusnik prison camp 2344 though not in the particular location or its immediate surroundings 692 The Accused Fatmir Limaj also gave evidence about the location of the Çeliku 3 fighting positions He confirmed that Çeliku 3 was located in the area of Llapushnik Lapusnik that lies to the south of the Peje Pec-Prishtina Pristina road 2345 2346 Llapushnik Lapusnik area 2347 Llapushnik Lapusnik He indicated on an aerial map of the the fighting positions held by the Çeliku 3 unit until the fall of The fighting positions of Çeliku 3 indicated on the map are located in the general vicinity of the location of the Llapushnik Lapusnik prison camp The Llapushnik Lapusnik prison camp is however not marked as being under the command the Çeliku 3 unit 2348 Ruzhdi Karpuzi a former Çeliku 3 soldier also indicated on an aerial map of the Llapushnik Lapusnik area the location of three fighting positions of Çeliku 3 2349 A comparison of the markings made on the aerial maps2350 indicates that the Çeliku 3 fighting positions were located to the south of the Peje Pec-Prishtina Pristina road in the general vicinity of the location of the Llapushnik Lapusnik prison camp but not in the particular location of the prison camp or in its immediate surroundings 693 It is L64’s evidence that in the summer of 1998 the Çeliku 3 headquarters moved to three different locations in the village of Llapushnik Lapusnik 2351 L64 testified that the first location of the headquarters from the formation of the unit until 29 May 1998 was near fighting position 1 2352 and therefore as said earlier approximately 400 metres south of the Peje Pec-Prishtina Pristina road It is his evidence that due to the intensive shelling on 29 May 1998 the Çeliku 3 headquarters had to move to the house of “Vojvoda”2353 for some days before moving to another compound of houses further away from the prison camp later identified as Elmi Sopi’s 2343 2344 2345 2346 2347 2348 2349 2350 2351 2352 2353 L64 T 4375-4380 Exhibit P170 L64 T 4378-4381 Fatmir Limaj T 6306-6308 In his interview Shukri Buja explains that Guri 3 was located on the northern side of the asphalt road that divides Llapushnik Lapusnik whereas Çeliku 3 was on the other side Exhibit P160 In his incourt testimony Shukri Buja testified that he did not know the location of the units T 3810-3811 3791-3794 Exhibit DL8 Fatmir Limaj T 6306-6308 Exhibit DL8 Exhibit DL8 Ruzhdi Karpuzi T 3209-3212 Exhibit P130 Exhibits P130 P170 and DL8 L64 T 4378-4383 Indicated as HQ 1 in Exhibit P170 L64 T 4383 Indicated as HQ 2 in Exhibit P170 L64 T 4383 278 Case No type Case # type date compound 2354 It is L64’s evidence that Isak Musliu aka Qerqiz commander of Çeliku 3 and his closest soldiers would stay at the headquarters of Çeliku 3 2355 694 Ruzhdi Karpuzi’s testimony differs from that of L64 Ruzhdi Karpuzi another Çeliku 3 soldier said that some of the Çeliku 3 soldiers including himself were initially stationed close to fighting position 1 but then moved to Gzim Gashi’s compound until the Llapushnik Lapusnik gorge fell He explains that the Çeliku 3 soldiers stayed in that compound for a month and that the number of soldiers staying in the compound varied constantly “sometimes there were three soldiers sometimes five sometimes seven another time two” 2356 Ruzhdi Karpuzi explains that the reason why there were few soldiers stationed there was to avoid KLA casualties from a potential attack by Serbian forces 2357 Ruzhdi Karpuzi testified that the Çeliku 3 soldiers slept and ate there and also kept the records of the soldiers there These records contained details of the soldiers their names their origin and whether the soldiers had been wounded or killed 2358 It is his evidence that from Gzim Gashi’s compound Ruzhdi Karpuzi could hear Isak Musliu aka Qerqiz singing in the oda located across the narrow roadway in the Llapushnik Lapusnik prison camp compound 2359 695 Elmi Sopi also gave evidence in this regard It is his evidence that KLA soldiers in the period covered by the Indictment periodically ate in the kitchen located in Gzim Gashi’s compound This compound is directly across a narrow unpaved roadway from the prison camp On Elmi Sopi’s evidence after 29 May 1998 a kitchen was set up in Gzim Gashi’s house It is his evidence that almost all soldiers had their daily meals in this house 2360 Elmi Sopi explains that the Çeliku 3 soldiers previously ate at Fadil Gashi’s house closer to the Peje Pec-Prishtina Pristina road but that due to the intensive shelling on 29 May the kitchen was moved to Gzim Gashi’s compound 2361 Elmi Sopi does not specify which KLA soldiers ate at Gzim Gashi’s kitchen It is clear from this evidence that the Çeliku 3 soldiers that previously ate at Fadil Gashi’s house ate at Gzim Gashi’s compound after 29 May 1998 It is not clear however whether all Çeliku 3 soldiers ate there or whether soldiers belonging to other KLA units in Llapushnik Lapusnik also ate there 696 As for the numerical extent of the Çeliku 3 unit in the summer of 1998 there is little evidence in this respect Ramiz Qeriqi testified that the commander of the Çeliku 3 unit Isak Musliu “could have been a platoon commander in charge of 20 soldiers not more” but later in his 2354 2355 2356 2357 2358 2359 2360 2361 L64 T 4380 On the same aerial map on which he marked the five fighting positions of Çeliku 3 L64 also marked the three locations where the Çeliku 3 headquarters were stationed Exhibit P170 L64 T 4383 4391-4392 Ruzhdi Karpuzi T 3087-3088 Ruzhdi Karpuzi T 3092 Ruzhdi Karpuzi T 3091 3244-3245 Ruzhdi Karpuzi T 3248-3249 Exhibit P128 Elmi Sopi T 6733 Exhibit DL15 Elmi Sopi T 6729 Exhibit DL15 279 Case No type Case # type date evidence he states that he might not be accurate in this respect 2362 L64 also testified in this respect It is his evidence that when the Çeliku 3 unit was formed there were only 20 soldiers in the unit However L64 gave evidence that after the 29 May 1998 battle the soldiers of the Çeliku 3 unit increased in number to approximately 60 soldiers 2363 ii Were there other units operating in Llapushnik Lapusnik 697 Several witnesses gave evidence that other units such as the Lumi and Pellumbi units operated in Llapushnik Lapusnik in the period covered by the Indictment The Prosecution submits that these units operated in the area that lies to the north of the Peje Pec-Prishtina Pristina road and not in the area to the south of the road where the Llapushnik Lapusnik prison camp was located and the Çeliku 3 soldiers operated 2364 698 Ruzhdi Karpuzi a former soldier in the Çeliku 3 unit gave evidence that there were several units in the village of Llapushnik Lapusnik namely the Guri Pellumbi Lumi and Çeliku 3 units 2365 He testified that the Pellumbi Guri and Lumi units were stationed to the north of the Peje Pec-Prishtina Pristina main road 2366 While it is also his evidence that one Pellumbi unit was also stationed to the south of the road this was at Kizhareke Kisna Reka 2367 not at Llapushnik Lapusnik 699 Elmi Sopi testified that the Pellumbi unit was positioned along the Peje Pec- Prishtina Pristina main road but in the area that lies to the north of the road 2368 Elmi Sopi stated that Guri 3 although positioned closer to the road was also in the area that lies north of the main road 2369 700 Sylejman Selimi the commander of the Drenica operational zone2370 at times material to the Indictment testified that the Guri Pellumbi and Alpha units were stationed on the northern side of the Peje Pec-Prishtina Pristina main road 2371 Sylejman Selimi gave evidence that unlike in other areas from May to July 1998 the units on the northern side of the Peje Pec-Prishtina Pristina road 2362 2363 2364 2365 2366 2367 2368 2369 2370 2371 Ramiz Qeriqi T 3595 L64 T 4375 Closing Arguments T 7269 Ruzhdi Karpuzi T 3078 Ruzhdi Karpuzi T 3079-3081 Exhibit P127 Ruzhdi Karpuzi T 3079-3081 Exhibit P127 Elmi Sopi T 6734-6735 Exhibit DL15 Elmi Sopi T 6735 Exhibit DL15 See supra para 55 Sylejman Selimi T 2090-2094 280 Case No type Case # type date were already organized in brigades He understood these to be the Guri Pellumbi and Alpha units which were on his evidence part of the 113th Brigade commanded by Muje Krasniqi 2372 701 L64 also identified other KLA units in the village of Llapushnik Lapusnik but positioned on the northern side of the Peje Pec-Prishtina Pristina main road namely the Pellumbi and Guri 3 units During his testimony L64 stated that these units were stationed there to patrol the road 2373 L64 stated that the Çeliku 3 unit was the only unit stationed to the south of the Peje PecPrishtina Pristina road 2374 He recalls however that in July 1998 a Pellumbi unit moved to the south side close to fighting position 5 of the Çeliku 3 unit 2375 702 Despite obvious variation in the evidence outlined above in the Chamber’s finding the Çeliku 3 unit was not the only KLA unit operating in the vicinity of the village of Llapushnik Lapusnik at the time relevant to the Indictment The Lumi Pellumbi Guri and Alpha units were also present in Llapushnik Lapusnik in the summer of 1998 The evidence reveals however that with the exception of a Pellumbi unit located a distance to the south of the position of the Llapushnik Lapusnik prison camp for a time in July 1998 and the Çeliku 3 positions located in the general vicinity of the Llapushnik Lapusnik prison camp all other units were located to the north of the Peje Pec-Prishtina Pristina main road iii Was Isak Musliu commander of Çeliku 3 or overall commander of the Llapushnik Lapusnik area 703 The Chamber has heard evidence from both Prosecution and Defence witnesses as to Isak Musliu’s leadership position of the Çeliku 3 unit located in Llapushnik Lapusnik The Chamber has also heard evidence that Isak Musliu might not have been the only leader of the Çeliku 3 unit Several witnesses testified that in fact Ymer Alushani aka Voglushi played a central role in the command of the Çeliku 3 unit In this respect the Prosecution submits that Ymer Alushani aka Voglushi was Isak Musliu’s deputy commander 2376 704 L64 testified that a couple of days after the formation of the Çeliku 3 unit on 9 May 1998 the Accused Fatmir Limaj told the soldiers that Isak Musliu aka Qerqiz would be their leader 2377 It is noted that the witness does not refer to Isak Musliu as the “commander of Çeliku 3” but as the “person responsible for the Llapushnik Lapusnik position” 2378 2372 2373 2374 2375 2376 2377 2378 It is L64’s evidence that the Sylejman Selimi T 2088-2090 L64 T 4384-4385 L64 T 4385 L64 T 4385-4386 Exhibit P170 Prosecution Final Brief para 122 Closing Arguments T 7270 L64 T 4357-4358 L64 T 4357 281 Case No type Case # type date decision to appoint Isak Musliu led to difficulties with respect to the position of Ymer Alushani aka Voglushi within the newly formed unit Ymer Alushani aka Voglushi was previously the commander of the Zjarri unit a unit that was incorporated into the Çeliku 3 unit at the time of its formation 2379 L64 explained that several KLA soldiers complained about Isak Musliu aka Qerqiz’s appointment as they had joined the unit specifically because they thought that Ymer Alushani aka Voglushi would be their commander L64 stated that Ymer Alushani aka Voglushi never personally expressed his dissatisfaction with regard to Qerqiz’s appointment rather he respected Qerqiz as “the person responsible for the position” and was always with him 2380 705 The hierarchical relationship between Isak Musliu aka Qerqiz and Ymer Alushani aka Voglushi within the Çeliku 3 unit is at times unclear in L64’s evidence For example L64 said that although Isak Musliu was the leader of the Çeliku 3 unit he and Ymer Alushani shared responsibilities L64 gave evidence that the soldiers in charge of the five Çeliku 3 fighting positions would report to either Qerqiz or Voglushi on the situation on the ground and the movement of the enemy forces 2381 It his evidence that the soldiers were supposed to notify Qerqiz if something important occurred during the shifts but that on occasions the soldiers notified Ymer Alushani on these matters as well 2382 The same occurred with regard to the recruitment of Çeliku 3 soldiers In this respect L64 testified that Isak Musliu decided whether KLA recruits would be admitted but that others would go directly to Ymer Alushani to be recruited 2383 In his diary or notebook2384 under the entry dated 29 May 1998 L64 wrote that Qerqiz ordered him to fire at a member of the Serbian infantry that was approaching their position 2385 Later in the same entry dated 29 May 1998 L64 notes that both Qerqiz and Voglushi ordered him to withdraw from his position 2386 At the same time it is L64’s evidence that soldiers of Çeliku 3 unit had to ask Isak Musliu for travel permits to visit their families 2387 Later in his evidence L64 testified that Qerqiz was the person in charge of the fighting and that Qerqiz not Voglushi kept the only small radio which the Çeliku 3 unit possessed 2388 Leaving aside the general credibility of this specific witness the above evidence leaves it unclear whether Isak Musliu was the commander of Çeliku 3 706 Ruzhdi Karpuzi a former Çeliku 3 soldier gave evidence that Ymer Alushani aka Voglushi and Isak Musliu aka Qerqiz were both commanders of the Çeliku 3 unit until Voglushi’s 2379 2380 2381 2382 2383 2384 2385 2386 2387 2388 L64 T 4357-4361 4335 L64 T 4357-4361 L64 T 4391 L64 T 4388 4391 L64 T 4376-4378 Exhibit P169 p 9 L64 T 4371-4372 Exhibit P169 p 10 Exhibit P169 p 10 L64 T 4389-4390 L64 T 4371-4372 Exhibit P169 282 Case No type Case # type date death on 26 July 1998 It is his evidence that Isak Musliu became a commander of Çeliku 3 several weeks after 18 May 1998 2389 On his evidence Isak Musliu was elected by the KLA soldiers to become the leader of one of the units operating in Llapushnik Lapusnik 2390 Ruzhdi Karpuzi’s evidence differed from L64’s evidence in that he testified that Ymer Alushani aka Voglushi proposed Isak Musliu’s promotion to the other soldiers and Isak Musliu subsequently became one of the commanders of Çeliku 3 2391 It is his evidence that a man called Zogi aka Mjeshtri was also in charge of Çeliku 3 and more specifically of fighting position 1 2392 Hence on the evidence of Ruzhdi Karpuzi there were several leaders of the Çeliku 3 unit Isak Musliu aka Qerqiz Ymer Alushani aka Voglushi and the man called Zogi aka Mjeshtri 707 Shukri Buja testified that he was not sure whether Isak Musliu aka Qerqiz or Ymer Alushani aka Voglushi was in charge of a unit in Llapushnik Lapusnik 2393 He later added that he did not even know whether the unit he was referring to was the Çeliku 3 unit 2394 However he testified that when he had business to do he addressed Ymer Alushani aka Voglushi “one of the unit commanders there” 2395 It also became clear that his evidence about these matters differed from what he had said in an earlier interview in April 2003 when he said he had the impression that Ymer Alushani aka Voglushi had more authority then Isak Musliu 2396 708 Fatmir Limaj also referred to Isak Musliu’s leadership position in an unsworn statement he made before the Chamber He said that Isak Musliu became the commander of Çeliku 3 in mid May 1998 2397 Nevertheless he said nothing as to who appointed Isak Musliu as commander of the Çeliku 3 unit 2398 Specifically he said nothing regarding L64’s suggestion that it was Fatmir Limaj himself who appointed Isak Musliu commander of the unit 2399 In an interview with UNMIK investigators dated 24 March 2001 Isak Musliu stated that in the summer of 1998 he was merely a “team leader in the Llapushnik Lapusnik area” In the interview Isak Musliu described his responsibilities within the KLA as follows The same month ₣May 1998ğ I started to serve as a UÇK soldier in Drenica valley I served as a soldier for about 6 weeks and then became team leader in Lapushnik area In my team I had in the beginning 11 soldiers and at the most 15-16 members 2389 2390 2391 2392 2393 2394 2395 2396 2397 2398 2399 Ruzhdi Karpuzi T 3075 Ruzhdi Karpuzi T 3241 Ruzhdi Karpuzi T 3075-3076 3240-3241 Ruzhdi Karpuzi T 3243 Shukri Buja T 3976-3979 Shukri Buja T 3978 Shukri Buja T 3978 Exhibit P160 p 70 Fatmir Limaj T 6306-6308 Fatmir Limaj T 5849-6582 Fatmir Limaj T 5849-6582 283 Case No type Case # type date In August 1998 ₣Iğ became deputy commander of UÇK brig 121 in ₣ the Nerodimeğ fighting area ₣The Nerodimeğ fighting area include s the municipalities of Lipjan Shtime Ferizaj and 2400 Kachanik 709 Sylejman Selimi testified that in the period from May to July 1998 there wasn’t any single commander in charge of all the Çeliku units 2401 It is his evidence that the structuring of KLA zones in the summer of 1998 differed from zone to zone Unlike the units in the Drenica operational zone the units located to the south of the Peje Pec-Prishtina Pristina main road namely the Çeliku units were not organised into brigades and had “no formations” there were some units Çeliku-some units named Çeliku which at that time started becoming organised just like the units in my area But at that time they were still working independent of 2402 each other 710 Bislim Zyrapi witness for the Defence gave evidence that during a visit to Llapushnik Lapusnik in June 1998 Ymer Alushani aka Voglushi introduced himself to him as the commander of the Llapushnik Lapusnik unit 2403 711 Zeqir Gashi who acted as a physician in the makeshift clinic in Llapushnik Lapusnik gives a different account Zeqir Gashi gave evidence that at the end of May 1998 he consulted with Ymer Alushani aka Voglushi regarding the possibility of opening a clinic in the village of Llapushnik Lapusnik to provide medical service to the civilian population On his evidence Ymer Alushani aka Voglushi introduced him to “one of the leaders of the KLA there by the pseudonym of Qerqizi” 2404 It is his evidence that he was being introduced to Qerqiz because “as far as I remember or understood Qerqiz was the leader of the unit that was in Llapushnik Lapusnik ”2405 Later in his evidence Zeqir Gashi explained that the unit he was referring to was the Çeliku unit 2406 When questioned whether Qerqiz was the leader of all the soldiers in Llapushnik Lapusnik or only some of the soldiers in Llapushnik Lapusnik Zeqir Gashi stated that to “his understanding” he was the leader of the entire unit in Llapushnik Lapusnik 2407 He explained in fact that Qerqiz was the man they would go to when they needed medical supplies for the makeshift clinic 2408 On his evidence Qerqiz also interviewed soldiers that wanted to join the KLA 2409 2400 2401 2402 2403 2404 2405 2406 2407 2408 2409 Exhibit P32 Sylejman Selimi T 2155-2156 Sylejman Selimi T 2090-2091 2100 Bislim Zyrapi T 6826 6834-6835 Dr Zeqir Gashi T 5604 Dr Zeqir Gashi T 5604 Dr Zeqir Gashi T 5604-5605 Dr Zeqir Gashi T 5614-5615 Dr Zeqir Gashi T 5613-5614 Dr Zeqir Gashi T 5615 284 Case No type Case # type date iv Findings 712 In the view of the Chamber the evidence does establish that the Accused Isak Musliu aka Qerqiz had a leadership position within the Çeliku 3 unit in late May June and July 1998 In this respect it is not established that he had exclusive command or leadership of the Çeliku 3 unit as his authority may have been shared to some degree with Ymer Alushani aka Voglushi Nevertheless in the Chamber’s finding Isak Musliu was in a position in this period to exercise effective command and control over the KLA forces that comprised the Çeliku 3 unit or fighting positions in the village of Llapushnik Lapusnik 713 In the view of the Chamber however the evidence is inconclusive and does not establish that Isak Musliu was in overall command or in a leadership position in respect of all KLA forces in the Llapushnik Lapusnik village or in that area Indeed the preponderance of evidence favours the view that several KLA units each under separate command were located in the area but with one exception for a time in July not to the south of the main road although soldiers from these units visited ate and slept in the village on the south side of the road from time to time 714 While the Çeliku 3 units were positioned in the general vicinity of the prison camp in the village of Llapushnik Lapusnik in the period relevant to the Indictment there is no direct evidence which establishes that the Çeliku 3 unit was responsible for operating the prison camp or that members of the Çeliku 3 unit performed duties in the prison camp The relative proximity of the Çeliku 3 fighting positions to the prison camp does not of itself provide a sufficient basis for inferring a connection between the Çeliku 3 unit and the prison camp nor does the very close proximity of Gzim Gashi’s compound to the prison camp While the evidence does establish that the Çeliku 3 unit had its headquarters in Gzim Gashi’s compound at least for part of the time relevant to the Indictment the evidence does indicate that this headquarters came to be located there as a matter of expediency in the face of Serbian shelling of the earlier headquarters Further the evidence indicates that soldiers from other KLA units also ate at this compound at least from time to time 715 In the absence of any satisfactory direct evidence and having regard to the above considerations the evidence is not sufficient to establish that the Accused Isak Musliu was a KLA commander of or that he had a leadership position or exercised control in the prison camp in the village of Llapushnik Lapusnik It is not established that at the relevant time Isak Musliu had effective command or control of the KLA forces operating the prison camp It follows that it is not established pursuant to Article 7 3 of the Statute that he had the material ability to prevent the detention of prisoners in the camp their interrogation their murder or the brutal and inhumane treatment inflicted upon them or to put an end to such conduct or to punish those responsible for it 285 Case No type Case # type date 716 Earlier in this decision the Chamber has also examined in detail the limited body of evidence from witnesses who purport to have identified Isak Musliu in the Llapushnik Lapusnik prison camp exercising some kind of authority over its operation For the reasons given earlier the Chamber is unable to conclude that the Accused Isak Musliu has been reliably identified as the person described in this evidence 2410 It follows that the Prosecution has failed to establish any case against the Accused Isak Musliu in respect of any of the offences with which he is charged in the Indictment 2410 See supra paras 671-688 286 Case No type Case # type date VII CUMULATIVE CONVICTIONS 717 The question of cumulative convictions arises when more than one charge stems out of what is essentially the same criminal conduct The Appeals Chamber has held that it is only permissible to enter cumulative convictions under different statutory provisions to punish the same criminal conduct if “each statutory provision involved has a materially distinct element not contained in the other” 2411 Where in relation to two offences this test is not met the Chamber should enter a conviction on the more specific provision 2412 718 For reasons detailed earlier the Chamber has found that the elements of the offences of torture Count 4 cruel treatment Count 6 and murder Count 10 have been established 719 In the present case the issue of cumulation arises in relation to the offences of torture Count 4 and cruel treatment Count 6 The statutory basis and the elements of each of these two offences of torture and cruel treatment have been analysed earlier in this decision 2413 Both offences require that the victim must have suffered serious bodily harm or mental harm this harm must be as a result of an act or omission of the accused or his subordinate and the perpetrator’s act must have been intentional The offence of torture has an additional element in that the act or omission must have been carried out with a specific purpose such as to obtain information or a confession to punish intimidate or coerce the victim or a third person or to discriminate on any ground against the victim or a third person 2414 The offence of cruel treatment however does not require proof of an element not required for the offence of torture Accordingly where the offences of torture and cruel treatment arise out of the same criminal conduct of the Accused the Chamber will enter a conviction only in respect of the charge of torture Count 4 The Chamber has done so with respect to one incident of mistreatment which in the Chamber’s finding amounted both to cruel treatment and torture The charge of cruel treatment remains therefore in respect of those incidents of mistreatment where the Chamber has found that only the offence of cruel treatment Count 6 has been established 720 In the instant case the issue of cumulation does not arise in relation to the offences of torture Count 4 and of murder Count 10 as these offences are not based upon the same criminal conduct The same can be said for the offences of cruel treatment Count 6 and of murder Count 10 2411 2412 2413 2414 elebi i Appeals Judgement para 412 elebi i Appeals Judgement para 413 See supra paras 231-240 Kunarac Appeals Judgement paras 142 144 confirming Kunarac Trial Judgement para 497 See also Br anin Trial Judgement para 481 Krnojelac Trial Judgement para 181 287 Case No type Case # type date 721 For the reasons given earlier in this decision and having regard to the law as to the cumulative convictions the Chamber will enter convictions against the Accused Haradin Bala in respect of Count 4 torture Count 6 cruel treatment and Count 10 murder 288 Case No type Case # type date VIII SENTENCING 722 The Prosecution has submitted that the Accused Haradin Bala if convicted on all counts should receive a sentence of imprisonment of 18 years 2415 He has not been convicted of all counts 723 Sentencing is governed by Article 24 of the Statute and Rule 101 of the Rules A convicted person may be sentenced to imprisonment for a term up to and including the remainder of his life 2416 Article 24 2 of the Statute provides that a Chamber “should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person” 2417 Rule 101 B requires that aggravating and mitigating circumstances as well as the general practice regarding prison sentences in the courts of the former Yugoslavia be taken into account 2418 although the Chamber is not bound by the latter 2419 The primary objectives of sentencing have been identified by the Appeals Chamber as retribution and deterrence 2420 The former aims at imposing a just and appropriate punishment for a particular offence 2421 while the latter seeks to ensure that the penalty imposed will dissuade the Accused and others from committing similar offences 2422 A The gravity of the offence 724 The gravity of the offence is a factor of paramount importance in the determination of sentence 2423 A sentence must reflect the inherent gravity of the totality of the criminal conduct of 2415 2416 2417 2418 2419 2420 2421 2422 2423 Closing Arguments T 7349 Rule 101 of the Rules provides “ A A convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life B In determining the sentence the Trial Chamber shall take into account the factors mentioned in Article 24 paragraph 2 of the Statute as well as such factors as i any aggravating circumstances ii any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction iii the general practice regarding prison sentences in the courts of the former Yugoslavia iv the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served as referred to in Article 10 paragraph 3 of the Statute C Credit shall be given to the convicted person for the period if any during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal ” Article 24 of the Statute provides “1 The penalty imposed by the Trial Chamber shall be limited to imprisonment In determining the terms of imprisonment the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia 2 In imposing the sentences the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person 3 In addition to imprisonment the Trial Chambers may order the return of any property and proceeds acquired by criminal conduct including by means of duress to their rightful owners ” Rule 101 of the Rules Krsti Appeals Judgement para 260 Bla ki Appeals Judgement para 682 referring to the Kunarac Trial Judgement para 829 elebi i Appeals Judgement para 806 Aleksovski Appeals Judgement para 185 Other less dominant objectives include the promotion of legal awareness public reprobation and rehabilitation See Bla ki Appeals Judgement para 678 elebi i Appeals Judgement para 806 Nevertheless it is the “individual guilt of an accused limits the range of the sentence ” See Staki Trial Judgement para 899 Nikoli Sentencing Judgement para 132 Todorovi Sentencing Judgement para 29 Nikoli Sentencing Judgement para 140 Todorovi Sentencing Judgement para 30 Aleksovski Appeals Judgement para 182 elebi i Appeals Judgement para 731 Bla ki Appeals Judgement para 683 289 Case No type Case # type date the accused giving due consideration to the particular circumstances of the case and to the form and degree of the participation of the accused 2424 725 In the present case the Prosecution submits that the gravity of the crimes is characterised by the fact that the Accused operated a prison camp where prisoners were subjected to inhumane conditions mistreatment beatings torture and murder over a nearly two-month period and that the only reason why the prison camp was shut down was that the Serbian forces took-over the area where the prison camp was located at the end of July 1998 2425 The findings of the Chamber affecting some of these matters have however taken away the basis for that submission in some respects 726 It is to be emphasized that the Accused Haradin Bala was not in a position of command in respect of the camp The Prosecution has not been able to establish who was in command The role of Haradin Bala was that of a guard While he performed this role throughout the period of the camp’s existence and was active in the day to day running of the prison the evidence indicates that other KLA members were involved in particular in many of the episodes of more violent mistreatment of detainees The evidence does not establish or even suggest that Haradin Bala exercised any authority over these other KLA members or that he actively instigated their mistreatment of detainees Rather his role was often as a mere attendant apparently acting at the bidding of others There were however episodes identified in this Judgement in which he actively participated in the physical mistreatment of individual detainees whether as the perpetrator or an aider These episodes involved cruel treatment by direct physical violence and in one incident he aided the torture of a detainee The detainees were of course defenceless as they were captive and at his mercy but the evidence does not disclose that he was motivated by or and gained any particular perverse pleasure from the abuse of detainees or that his conduct was notably sadistic It is clear from the evidence nevertheless that there was culture of violence in the prison camp of which Haradin Bala was well aware Indeed his conduct helped to create and re-inforce that culture It was his day to day running of the prison that led to the deplorable and inhumane conditions of detention particularly in the storage room and cowshed that have been described earlier in this Judgement 727 The remaining detainees were escorted from the prison on the last day by Haradin Bala and another It is possible there was a third KLA guard Having been led into the nearby Berishe Berisa Mountains some of the detainees were released and allowed to leave Of those that remained it has been established that nine were executed by Haradin Bala and the other guard or 2424 Furund ija Appeals Judgement para 249 Bla ki Appeals Judgement para 683 290 Case No type Case # type date guards acting together At least one detainee was not executed but death befell the majority of those remaining detainees This is the most grave aspect of the criminal conduct of Haradin Bala It is the effect of the evidence however in the Chamber’s finding that Haradin Bala was acting under orders from a higher authority whose identity is not established by the evidence in marching the detainees to the mountains releasing some and executing nine He did not murder the nine detainees on his own initiative B Aggravating and mitigating circumstances 728 The Statute and the Rules do not attempt to exhaustively define aggravating and mitigating factors The jurisprudence has identified additional factors which a Chamber may take into 2426 account These are not exhaustive The Chamber must weigh the circumstances of each particular case to identify aggravating and mitigating circumstances and assess the weight to be accorded thereto 2427 729 Aggravating circumstances must be directly related to the commission of the offence 2428 and must be established beyond a reasonable doubt 2429 The exercise of the Accused of his right to remain silent and not to testify cannot constitute an aggravating circumstance 2430 Mitigating circumstances may be taken into account regardless of whether they are directly related to the alleged offence 2431 and are to be determined on a balance of the probabilities 2432 730 In the present case the Prosecution submits that the relevant aggravating circumstances include the discriminatory intent length of time during which the crime continued active and direct criminal participation premeditation violent and humiliating nature of the acts and the vulnerability of the victims the status of the victims their youthful age and number and the effect of the crimes on them civilian detainees character of the accused which includes lack of remorse and the circumstances of the offences generally 2433 731 As mentioned earlier the Chamber has found that the Accused Haradin Bala is criminally responsible for the commission of the crimes of cruel treatment torture and murder of civilian detainees 2434 The status of the detainees as civilians or persons not taking active part in the 2425 2426 2427 2428 2429 2430 2431 2432 2433 2434 Closing Arguments T 7344 Bla ki Appeals Judgement paras 686 and 696 elebi i Appeals Judgement paras 777 780 Bla ki Appeals Judgement para 685 Kunarac Trial Judgement para 850 Staki Trial Judgement para 911 elebi i Appeals Judgement para 763 Bla ki Appeals Judgement paras 686 elebi i Appeals Judgement para 783 Bla ki Appeals Judgement para 687 Staki Trial Judgement para 920 Bla ki Appeals Judgement para 697 Closing Arguments T 7345 See supra paras 652-670 291 Case No type Case # type date hostilities cannot be taken into consideration as an aggravating factor given that it is already an element of the offences of torture cruel treatment and murder under Article 3 of the Statute These crimes were committed by the Accused Haradin Bala within a period of less than 2 months The recurrence of Haradin Bala’s criminal behaviour should not be considered an aggravating factor in the present case as the number of crimes committed in the period of time concerned has been taken into account in evaluating the gravity of the offences The same can be said with regard to the direct participation of the Accused to the crimes and other factors invoked i e vulnerability of the victims as detainees violent and humiliating nature of the acts circumstances of the offences generally The Chamber has not heard evidence that would allow it to make a finding against the Accused in respect of the other matters relied on by the Prosecution 732 The Defence for Haradin Bala has emphasized that the Accused was not a person with any commanding or authoritative role in the establishment of the camp and essentially performed duties assigned to him as essentially a “simple man” 2435 In an unsworn statement Haradin Bala pointed out that he was the father of a family of seven children and that one of his children requires particular attention because she is paralysed 2436 The evidence also confirms that Haradin Bala is in a poor medical condition 2437 He has for many years experienced problems involving his heart function and blood pressure 2438 The Chamber will take these matters into consideration by way of some mitigation of the sentence It is also conscious that his prolonged detention will be of hardship for his family in particular because his daughter requires particular assistance and is satisfied that his anxiety about his family will make the period the Accused is to serve in custody more difficult for the Accused 733 The Chamber has also heard evidence regarding Haradin Bala’s good treatment to some detainees at the Llapushnik Lapusnik prison camp 2439 Although this evidence shows that he was capable of some benevolence this does not significantly detract from the seriousness of his conduct on the other occasions for which he is to be punished The occasional assistance to some detainees will not be given much weight 2435 2436 2437 2438 2439 Closing Arguments T 7479 Unsworn statement of Haradin Bala T 6905 Ali Thaqi T 7022-7026 Kadri Dugolli T 7007-7012 Dr Fitim Selimi T 6949-6951 Exhibit DB6 Ali Thaqi T 7022-7026 Kadri Dugolli T 7007-7012 Dr Fitim Selimi T 6949-6951 Exhibit DB6 L07 T 832 L24 T 1330-1332 292 Case No type Case # type date C The general practice in the courts of the former Yugoslavia and this Tribunal 734 In determining the appropriate sentence the Chamber takes into account the general sentencing practice in the former Yugoslavia It is however not bound by such practice2440 and can impose a sentence in excess of that which would be applicable under the relevant law in the former Yugoslavia 2441 By Article 142 of the SFRY Criminal Code which was in force at the time of the offences a number of criminal acts including “killings torture and inhuman treatment” “immense suffering or violation of body integrity and health” of the civilian population were punishable by a sentence of imprisonment for not less than five years or by the death penalty Articles 38 1 and 38 2 of the SFRY Code are also of relevance insofar as they provide for a sentence of 15 years imprisonment subject to the provision that if a criminal offence attracts the death penalty the court may impose a longer sentence of 20 years imprisonment By virtue of the above the crimes of which the Accused Haradin Bala has been found guilty are punishable in the former Yugoslavia by sentences of between 5 and 20 years imprisonment 735 Although this case turns on its own facts in determining the sentence of Haradin Bala the Chamber has also considered the sentencing practice in this Tribunal related to the commission of crimes in or around prison camps or detention centres An overview of the judgements demonstrates that the circumstances of the cases vary considerably affecting the length of sentences handed down The cases involve convictions for a variety of offences direct criminal liability under article 7 1 or superior liability under article 7 3 of the Statute and in some cases both crimes against humanity and war crimes but in others only one other of these Significant factual variation also occurred in respect of matters such as the number of victims the duration of existence of the prison camp and the degree of cruelty displayed by the accused The most serious offences in cases involving prison camps have led to sentences of considerable duration In Prosecutor v Jelisi in which a sentence of 40 years was handed down the Trial Chamber emphasized in imposing sentence “the repugnant bestial and sadistic nature of ₣…ğ Jelisi ’s behaviour ”2442 In Prosecutor v Delali et al in imposing a sentence of 15 years on Land o a 2440 2441 2442 elebi i Appeals Judgement paras 813 816 Kunarac Appeals Judgement para 377 Jelisi Appeals Judgement paras 116-117 Bla ki Appeals Judgement para 681-682 referring to the Kunarac Trial Judgement para 829 “Although the Trial Chamber is not bound to apply the sentencing practice of the former Yugoslavia what is required certainly goes beyond merely reciting the relevant criminal code provisions of the former Yugoslavia Should they diverge care should be taken to explain the sentence to be imposed with reference to the sentencing practice of the former Yugoslavia especially where international law provides no guidance for a particular sentencing practice The Trial Chamber notes that because very important underlying differences often exist between national prosecutions and prosecutions in this jurisdiction the nature scope and the scale of the offences tried before the International Tribunal do not allow for an automatic application of the sentencing practices of the former Yugoslavia ” elebi i Appeals Judgement para 816-817 Bla ki Appeals Judgement para 681 Jelisi Trial Judgement para 130 293 Case No type Case # type date guard in the elebi i prison camp the Trial Chamber had particular regard to the sadistic tendencies exhibited and the premeditated nature of his criminal acts 2443 736 The Chamber has considered in particular two cases which exhibit factual and legal allegations with some similarity to the instant case In the Prosecutor v Tadi the Accused was sentenced to 20 years of imprisonment for committing and aiding and abetting the crimes of cruel treatment inhumane acts persecutions torture wilfully causing great suffering or serious injury to body or health and murder under Articles 2 3 and 5 2444 In Prosecutor v Delali et al Land o was sentenced to 15 years for committing crimes of wilful killing wilfully causing great suffering or serious injury to body or health and torture under Article 2 2445 The acts committed in the latter case were particularly heinous and depraved in nature The Chamber has also noted the circumstances of and the sentence of 7 years imprisonment imposed in the Prosecutor v Aleksovski 2446 It is significant however that there was no conviction for murder in that case D Credit for time served in custody 737 Pursuant to Rule 101 C of the Rules the Accused is entitled to credit for the time spent in detention pending and during his trial The Chamber notes that Haradin Bala has been in custody in relation to this Indictment since 17 February 2003 2443 elebi i Trial Judgement paras 1272-1284 Tadi Sentencing Appeals Judgement 2445 elebi i Trial Judgement elebi i Sentencing Appeals Judgement 2446 Aleksovski Appeals Judgement 2444 294 Case No type Case # type date IX DISPOSITION 738 For the foregoing reasons having considered all of the evidence and the submissions of the parties the Chamber decides as follows 739 The Chamber finds that the jurisdictional requirements for the applicability of Article 5 of the Statute have not been established Accordingly the offences of crimes against humanity brought under Article 5 of the Statute namely Count 1 imprisonment Count 3 torture Count 5 inhumane acts Count 7 murder and Count 9 murder are dismissed 740 The Chamber finds the Accused Fatmir Limaj NOT GUILTY on all counts in the Indictment Pursuant to Rule 99 A of the Rules the Chamber orders that Fatmir Limaj be immediately released from the United Nations Detention Unit 741 The Chamber finds the Accused Haradin Bala GUILTY pursuant to Article 7 1 of the Statute of the following counts Count 4 Torture a violation of the laws or customs of war under Article 3 of the Statute for having aided the torture of L12 Count 6 Cruel treatment a violation of the laws or customs of war under Article 3 of the Statute for having personally mistreated detainees L04 L10 and L12 and aided another episode of mistreatment of L04 and for his personal role in the maintenance and enforcement of inhumane conditions of detention in the Llapushnik Lapusnik prison camp Count 10 Murder a violation of the laws or customs of war under Article 3 of the Statute for having personally participated in the murder of the following nine detainees in the Berishe Berisa Mountains Emin Emini Ibush Hamza Hyzri Harjizi Shaban Hoti Hasan Hoxha Safet Hysenaj Bashkim Rashiti Lutfi Xhemshiti and Shyqyri Zymeri but finds the Accused Haradin Bala NOT GUILTY on all other counts in the Indictment 742 The Chamber hereby sentences Haradin Bala to a single sentence of 13 years imprisonment Haradin Bala has been in custody since 17 February 2003 Pursuant to Rule 101 C of the Rules he is entitled to credit for time spent in detention so far Pursuant to Rule 103 C of the Rules Haradin Bala shall remain in the custody of the Tribunal pending the finalisation of arrangements for his transfer to the State where he shall serve his sentence 295 Case No type Case # type date 743 The Chamber finds the Accused Isak Musliu NOT GUILTY on all counts in the Indictment Pursuant to Rule 99 A of the Rules the Chamber orders that Isak Musliu be immediately released from the United Nations Detention Unit Done in English and French the English text being authoritative Dated this thirtieth day of November 2005 At The Hague The Netherlands Judge Kevin Parker Presiding Judge Krister Thelin Judge Christine Van Den Wyngaert Seal of the Tribunal 296 Case No type Case # type date X ANNEX I GLOSSARY OF TERMS Additional Protocol I Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts Protocol I Geneva 8 June 1977 Additional Protocol II Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts Protocol II Geneva 8 June 1977 Akayesu Trial Judgement Prosecutor v Jean-Paul Akayesu Case No ICTR-964-T Judgement 2 September 1998 Aleksovski Appeals Judgement Prosecutor v Zlatko Aleksovski Case No IT-95-14 1A Judgement 24 March 2000 Aleksovski Trial Judgement Prosecutor v Zlatko Aleksovski Case No IT-95-14 1T Judgement 25 June 1999 APC Armoured personal carrier BCS Bosnian Croatian Serbian language Blagojevi Trial Judgement Prosecutor v Vidoje Blagojevi and Dragan Joki Case No IT-02-60-T Judgement 17 January 2005 Bla kić Appeals Judgement Prosecutor v Tihomir Blaškić Case No IT-95-14-A Judgement 29 July 2004 Bla ki Trial Judgement Prosecutor v Tihomir Bla ki Case No IT-95-14-T Judgement 3 March 2000 Brđanin Trial Judgement Prosecutor v Radoslav Brđanin Case No IT-99-36-T Judgement 1 September 2004 CCIU UNMIK Police Central Criminal Investigation Unit elebi i Appeals Judgement Prosecutor v Zejnil Delalić et al Case No IT-96-21A Judgement 20 February 2001 elebi i Sentencing Appeals Judgement Prosecutor v Zejnil Delalić et al Case No IT-96-21Abis Judgement on Sentence Appeal 8 April 2003 elebi i Trial Judgement Prosecutor v Zejnil Delalić et al Case No IT-96-21-T Judgement 16 November 1998 Closing Arguments Transcript of hearing in the present case relating to the closing arguments of Prosecution and the Defence All transcript pages referred to in this Judgement are taken from the uncorrected version of the transcript Minor 297 Case No type Case # type date differences may therefore exist between the pagination therein and that of the final transcript released to the public Common Article 3 Article 3 of Geneva Conventions I to IV Defence Counsel for the Accused Fatmir Limaj Haradin Bala and Isak Musliu Defence for Fatmir Limaj Counsel for the Accused Fatmir Limaj Defence for Haradin Bala Counsel for the Accused Haradin Bala Defence for Isak Mulsiu Counsel for the Accused Isak Musliu Defence Final Brief Prosecutor v Fatmir Limaj Haradin Bala Isak Musliu Case No IT-03-66-T Defence Joint Final Brief Pursuant to Rule 86 B Confidential 21 July 2005 Corrigendum to Sections 7 8 and 12 of Defence Joint Final Brief 25 July 2005 and Corrigendum to Sections 3 4 5 and 9 of Defence Joint Final Brief 1 August 2005 Defence Skeleton Argument on the Jurisdictional issue of Armed Conflict Prosecutor v Fatmir Limaj Haradin Bala Isak Musliu Case No IT-03-66-T Defence Skeleton Argument on the Jurisdictional Issue of Armed Conflict 30 August 2005 FARK Forcat Armatosur e Republikes e Kosoves Armed Force of the Republic of Kosovo Furund ija Appeals Judgement Prosecutor v Anto Furund ija Case No IT-95-17 1-A Judgement 21 July 2000 Furund ija Trial Judgement Prosecutor v Anto Furund ija Case No IT-95-17 1-T Judgement 10 December 1998 FRY Federal Republic of Yugoslavia Galić Trial Judgement Prosecutor v Stanislav Galić Case No IT-98-29 Judgement 5 December 2003 Geneva Convention I Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 Geneva Convention II Geneva Convention II for the Amelioration of the Condition of Wounded Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949 Geneva Convention III Geneva Convention III Relative to the Treatment of Prisoners of War of 12 August 1949 298 Case No type Case # type date Geneva Convention IV Geneva Convention IV Relative to the Protection of Civilian Person in Time of War of 12 August 1949 Geneva Conventions Geneva Conventions I to IV of 12 August 1949 HRW Human Rights Watch ICC International Criminal Court ICMP International Commission on Missing Persons ICRC International Committee of the Red Cross ICRC Commentary on the Additional Protocols Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 International Committee of the Red Cross Geneva 1987 ICTR International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January 1994 and 31 December 1994 Indictment Prosecutor v Fatmir Limaj Haradin Bala and Isak Musliu Case No IT-03-66-PT Decision on Prosecution’s Motion to Amend the Amended Indictment 13 February 2004 “Second Amended Indictment” attached to the “Prosecution’s Motion to Amend the Amended Indictment” filed on 6 November 2003 JCE Joint criminal enterprise Jelisić Appeals Judgement Prosecutor v Goran Jelisi Case No IT-95-10-A Judgement 5 July 2001 Jelisić Trial Judgement Prosecutor v Goran Jelisi Case No IT-95-10-T Judgement 14 December 1999 JSO Special Operations Unit of Ministry of Interior of Republic of Serbia Kordić Appeals Judgement Prosecutor v Dario Kordić Mario Čerkez Case No IT-95-14 2-A Judgement 17 December 2004 Kordi Trial Judgement Prosecutor v Dario Kordi Mario Čerkez Case No IT-95-14 2-T Judgement 26 February 2001 Krnojelac Appeals Judgement Prosecutor v Milorad Krnojelac Case No IT-97-25-A Judgement 17 September 2003 299 Case No type Case # type date Krnojelac Trial Judgement Prosecutor v Milorad Krnojelac Case No IT-97-25-T Judgement 15 March 2002 Krstić Appeals Judgement Prosecutor v Radislav Krstić Case No IT-98-33-A Judgement 19 April 2004 Krstić Trial Judgement Prosecutor v Radislav Krstić Case No IT-98-33-T Judgement 2 August 2001 Kunarac Appeals Judgement Prosecutor v Dragoljub Kunarac et al Case No IT96-23 23 1-A Judgement 12 June 2002 Kunarac Trial Judgement Prosecutor v Dragoljub Kunarac et al Case No IT96-23 1-T Judgement 22 February 2001 Kupre ki Appeals Judgement Prosecutor v Zoran Kupre ki et al Case No IT-9516-A Judgement 23 October 2001 Kupre ki Trial Judgement Prosecutor v Zoran Kupre ki et al Case No IT-9516-T Judgement 14 January 2000 KLA Kosovo Liberation Army “UÇK” “Oslobodilacka vojska Kosova Kvo ka Appeals Judgement Prosecutor v Miroslav Kvo ka et al Case No IT-9830 1-A Judgement 28 February 2005 Kvo ka Trial Judgement Prosecutor v Miroslav Kvo ka et al Case No IT-9830-T Judgement 2 November 2001 LDK Democratic League of Kosovo LPK Popular Movement for Kosovo LPRK Popular Movement for the Republic of Kosovo Milošević Rule 98bis Decision Prosecutor v Slobodan Milošević Case No IT-02-54T Decision on Motion for Judgement of Acquittal 16 June 2004 MUP Ministry of the Interior Naletilić Trial Judgement Prosecutor v Mladen Naletilić aka “Tuta” and Vinko Martinović aka “Štela” Case No 98-34-T Judgement 31 March 2003 Nikolić Sentencing Judgement Prosecutor v Dragan Nikolić Case No IT-94-2-S Sentencing Judgement 18 December 2003 Oda Guest room OTP Office of the Prosecutor 300 Case No type Case # type date PJP Special Police Unit of the Ministry of Interior of the Republic of Serbia Pre-Trial Brief of Fatmir Limaj Prosecutor v Fatmir Limaj Haradin Bala Isak Musliu Case No IT-03-66-PT Pre-Trial Brief of Fatmir Limaj 1 June 2004 Pre-Trial Brief of Haradin Bala Prosecutor v Fatmir Limaj Haradin Bala Isak Musliu Case No IT-03-66-PT Pre-Trial Brief of Haradin Bala Pursuant to Rule 65ter F of the Rules of Procedure and Evidence 1 June 2004 Pre-Trial Brief of Isak Musliu Prosecutor v Fatmir Limaj Haradin Bala Isak Musliu Case No IT-03-66-PT Pre-Trial Brief of Isak Musliu 1 June 2004 Prison camp Llapushnik Lapusnik Farm Compound referred to in Prosecution Exhibit P6 pp 1-18 Prosecution The Office of the Prosecutor Prosecution Final Brief Prosecutor v Fatmir Limaj Haradin Bala Isak Musliu Case No IT-03-66-T Prosecution’s Final Brief Confidential 20 July 2005 Prosecution Pre-Trial Brief Prosecutor v Fatmir Limaj Haradin Bala Isak Musliu Case No IT-03-66-T Prosecutor’s Notice of Filing of Pre-Trial Brief and Other Documents Pursuant to Rule 65 ter 27 February 2004 and Corrigendum to Prosecution’s Pre-Trial Brief Updated Witness List and Revised Set of Rule 65ter Summaries 30 September 2004 PU Policia Ushtarake KLA military police OSCE Organisation for Security and Cooperation in Europe Rules Rules of Procedure and Evidence of the Tribunal SAJ Special Anti-terrorist Unit of the Ministry of Interior of the Republic of Serbia Statute Statute of the International Criminal Tribunal for the former Yugoslavia established by Security Council Resolution 827 Stakić Trial Judgement Prosecutor v Milomir Stakić Case No IT-97-24-T Judgement 31 July 2003 Strugar Trial Judgement Prosecutor v Pavle Strugar Case No IT-01-42-T Judgement 31 January 2005 T Transcript of hearing in the present case All transcript pages referred to in this Judgement are taken from the 301 Case No type Case # type date uncorrected version of the transcript Minor differences may therefore exist between the pagination therein and that of the final transcript released to the public Tadi Appeals Judgement Prosecutor v Du ko Tadi aka “Dule” Case No IT94-1-A Judgement 15 July 1999 Tadi Jurisdiction Decision Prosecutor v Du ko Tadi aka “Dule” Case No IT94-1-AR72 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction 2 October 1995 Tadi Sentencing Appeals Judgement Prosecutor v Du ko Tadi aka “Dule” Case No IT94-1-A and IT-94-1-Abis Judgement in Sentencing Appeals 26 January 2000 Tadić Trial Judgement Prosecutor v Du ko Tadić aka “Dule” Case No IT94-1-T Judgement 7 May 1997 TO Territorial Defence Todorović Sentencing Judgement Prosecutor v Stevan Todorović Case No IT-95-9 1-T Sentencing Judgement 31 July 2001 Tribunal International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 UN United Nations UNMIK United Nations Interim Administration Mission in Kosovo UNMIK MPU United Nations Interim Administration Mission in Kosovo Missing Persons Unit UNICEF United Nations Childrens’ Fund Vasiljević Appeals Judgement Prosecutor v Mitar Vasiljević Case No IT-98-32-A Judgement 25 February 2004 Vasiljević Trial Judgement Prosecutor v Mitar Vasiljević Case No IT-98-32-T Judgement 29 November 2002 VJ Vojska Jugoslavije Army of Yugoslavia 302 Case No type Case # type date XI ANNEXES II AND III MAPS Annex II Map of the area and the surrounding municipalities Annex III Topographical map of the area 303 Case No type Case # type date 304 Case N0 type Case type a e 305 Case N0 type Case type date XII ANNEX IV PROCEDURAL HISTORY A Pre-trial proceedings 1 Indictment and initial appearance 744 The Accused Fatmir Limaj Haradin Bala and Isak Musliu were originally indicted with a fourth Accused Agim Murtezi The Indictment confirmed by Judge Amin El Mahdi on 27 January 2003 was confidentially filed on 15 January 2003 and alleged nine counts of violations of the laws or customs of war and crimes against humanity pursuant to Articles 3 and 5 of the Statute The acts and omissions forming the basis of the indictment were alleged to have occurred between May 1998 and July 1998 745 Three of the four Accused viz Haradin Bala Isak Musliu and Agim Murtezi were arrested by the SFOR on 17 February 2003 and transferred to the UNDU On 18 February 2003 Judge Amin El Mahdi vacated the Order for non-disclosure 2447 Fatmir Limaj was arrested on 18 February 2003 and transferred to the UNDU from Kosovo on 3 March 2003 At the initial appearance of Haradin Bala Isak Musliu and Agim Murtezi on 20 February 2003 all three entered a plea of not guilty to all charges held against them At the initial appearance of Fatmir Limaj which took place on 5 March 2003 he also entered a plea of not guilty to all charges against him 746 By Order of the President of the Tribunal the case was assigned to Trial Chamber I on 30 May 2003 On 20 February 2003 Judge Liu Daqun was assigned pre-trial judge2448 however on 23 May 2003 following the adoption of resolution 1481 2003 by the United Nations Security Council allowing ad litem judges to act as Pre-Trial Judges Judge Joaquín Martín Canivell was assigned Pre-Trial judge 2449 2 History of the Indictment 747 On 21 February 2003 the Murtezi Defence raised the possibility of a mistake in identity of the Accused On 21 24 and 25 February 2003 the Prosecution interviewed the Accused Agim Murtezi in accordance with Rules 42 and 43 of the Rules At the request of the Prosecution the indictment was withdrawn by Trial Chamber I without prejudice on 28 February 2003 2450 2447 2448 2449 2450 Decision to Vacate the Order for Non-Disclosure entered 27 January 2003 18 February 2003 Order Designating a Pre-Trial Juage 20 February 2003 Order Designating a New Pre-Trial Judge 23 May 2005 Order to Withdraw the Indictment Against Agim Murtezi and Order for His Immediate Release 28 February 2003 306 Case No type Case # type date 748 On 7 March 2003 pursuant to Rules 50 and 73 and in compliance with the Order of Trial Chamber I the Prosecution filed the “Prosecutor’s Motion to Amend the Indictment” dismissing all charges against Agim Murtezi and removing one victim included in Annex III of the original indictment On 25 March 2003 Trial Chamber I granted the Prosecution Motion 2451 749 On 6 November 2003 the Prosecution filed a new “Motion to amend the Amended Indictment” Trial Chamber I granted the Motion on 12 February 2004 finding that no prejudice could be shown to the Accused 2452 The amended indictment included the addition of allegations of joint criminal liability under Article 7 1 of the Statute against all three accused the addition of one count of inhumane acts as a crime against humanity under Article 5 of the Statute based on factual allegations contained in the original indictment the addition of one incident of murder under existing counts in the original indictment and the addition of allegations of superior responsibility under Article 7 3 of the Statute against the Accused Isak Musliu 750 On 20 February 2004 the Defence for Isak Musliu applied before the Chamber for certification to appeal the decision to grant leave to amend the Amended Indictment On 25 February 2004 Trial Chamber I denied the application 2453 751 Following the amendment the Accused Fatmir Limaj Haradin Bala and Isak Musliu were required to plead once more on 27 February 2004 All three Accused pleaded not guilty to all charges added by the amendment to the indictment 752 The Defence for Haradin Bala announced its intention to offer a partial defence of alibi 2454 3 Applications for provisional release 753 On 24 June 2003 the Defence for Fatmir Limaj filed an “Application for Provisional Release of Fatmir Limaj” On 12 September 2003 Trial Chamber I rejected the Accused’s application on the grounds that it could not be satisfied that the Accused would have surrendered voluntarily if given the opportunity as well as on the basis of the seriousness of the charges against the Accused and the lack of guarantees from the legitimate authority and administration of Kosovo UNMIK 2455 On 22 September 2003 the Defence for Fatmir Limaj filed an application for leave to 2451 Decision to Grant Leave to Amend the Indictment 25 March 2003 Decision on Prosecution’s Motion to Amend the Amended Indictment 12 February 2004 2453 Decision on Musliu’s Application for Certification to Appeal “Decision on Prosecution’s Motion to Amend the Amended indictment” 25 February 2004 2454 Pre-Trial Brief of Haradin Bala pursuant to Rule 65ter F of the Rules of Procedure and Evidence 27 May 2004 paras 2-5 2455 Decision on the Provisional Release of Fatmir Limaj 12 September 2003 2452 307 Case No type Case # type date appeal the decision of Trial Chamber I on provisional release of Fatmir Limaj The application was denied by the Appeals Chamber on 31 October 2003 2456 754 On 7 July 2003 the Defence for Haradin Bala filed a similar application for provisional release On 16 September 2003 Trial Chamber I rejected the application on the grounds that it was not satisfied that if released the Accused would appear for trial 2457 The Defence for Haradin Bala applied for leave to appeal which was subsequently denied by Trial Chamber I on 31 October 2003 2458 755 On 6 August 2003 the Defence for Isak Musliu also filed an application for provisional release On 17 September 2003 Trial Chamber I rejected the application on the same grounds as it refused the applications on behalf of Fatmir Limaj and Haradin Bala The Defence for Isak Musliu also applied for leave to appeal the decision and this was denied on 31 October 2003 2459 4 Issues relating to the protection of victims and witnesses 756 On 19 June 2003 the Prosecution filed its first “Prosecution’s Motion for Protective Measures Regarding Disclosure” whereby it requested protective measures for six sensitive witnesses The Defence for Fatmir Limaj and Isak Musliu opposed the delayed disclosure of the evidence of the six sensitive witnesses Trial Chamber I rejected the Defence’s arguments and granted the Prosecution’s request for protective measures on 30 September 2003 2460 757 On 21 October 2003 the Prosecution filed a second confidential and partially ex-parte motion for protective measures regarding disclosure of eight other sensitive witnesses Trial Chamber I granted the Prosecution’s second motion on 18 December 2003 2461 5 Health of the Accused Haradin Bala 758 On 1 July 2003 pursuant to Rule 74bis the Defence for Haradin Bala requested that an independent cardiologist examine Haradin Bala to determine whether he was fit to stand trial On 24 July 2003 the Pre-Trial Judge ordered the Registrar to appoint a cardiologist to conduct a medical examination of the Accused 2462 On 9 September 2003 the cardiologist filed his report and concluded that Haradin Bala was fit to stand trial 2456 2457 2458 2459 2460 2461 2462 Decision on Fatmir Limaj’s Request for Provisional Release 31 October 2003 Decision on Provisional Release of Haradin Bala 16 September 2003 Decision on Haradin Bala’s Request for Provisional Release 31 October 2003 Decision on Provisional Release of Isak Musliu 31 October 2003 Decision on the Prosecutor’s Motion for Protective Measures Regarding Disclosure 30 September 2003 Decision on the Prosecutor’s Motion for Protective Measures Regarding Disclosure 18 December 2003 Order for a Medical Examination of the Accused confidentially filed on 25 July 2003 308 Case No type Case # type date 759 As a result of further medical problems the Defence for Haradin Bala filed a second confidential “Motion of Haradin Bala for Medical Examination” to have the Accused examined again by an approved cardiologist on 9 June 2004 Trial Chamber I granted the request on 28 June 2004 2463 On 28 July 2004 the new cardiologist filed his medical report in which he concluded that Haradin Bala’s medical condition was satisfactory In August 2004 Trial Chamber I requested the Registry to organise other examinations of the Accused until a consistent diagnosis was obtained A further examination of the Accused Haradin Bala revealed no respiratory deficiency 6 Commencement of Trial 760 On 27 February 2004 the Prosecution filed its Pre-Trial Brief On 28 April 2004 the Defence for Isak Musliu filed an “Application for Extension of Time to File Defence Pre-Trial Brief” The Defence for the two other Accused joined the request Trial Chamber I enlarged the time-limit by two weeks on the ground that the decision was made before the Pre-Trial Briefs were due 2464 A further extension was granted on 24 May 2004 2465 All three Accused filed their PreTrial Briefs on 1 June 2004 761 On 11 October 2004 by order of the Acting President of the Tribunal the case was assigned to Trial Chamber II consisting of Judge Kevin Parker presiding Judge Krister Thelin and Judge Christine Van Den Wyngaert 2466 762 The pre-trial conference took place on Monday 15 November 2004 During the pre-trial conference the Chamber orally denied a request from the Defence for the postponement of trial 2467 The trial against Fatmir Limaj Haradin Bala and Isak Musliu commenced on Monday 15 November 2004 2468 B Trial Proceedings 1 Overview 763 The Prosecution case opened on 15 November 2004 and ended on 13 April 2005 The Defence for Fatmir Limaj opened its case on 17 May 2005 and completed it on 3 June 2005 The Defence for Haradin Bala opened its case on 7 June 2005 and completed it on 9 June 2005 The 2463 Order for a Medical Examination of the Accused Bala confidential 28 June 2004 Decision on Defence’s Applications for Extension of Time to file Pre-Trial Briefs and Order for Filing of Expert Reports and Notice under Rule 94bis 7 May 2004 2465 Decision on Defence’s Applications for Extension of Time to File Pre-Trial Briefs 24 May 2004 2466 Order Assigning Judges to a Case Before a Trial Chamber 11 October 2004 2467 Oral Decision of the Chamber 15 November 2004 2468 Scheduling Order for the Pre-Trial Conference and the Commencement of the Trial Against Fatmir Limaj Haradin Bala and Isak Musliu 12 October 2004 2464 309 Case No type Case # type date Defence for Isak Musliu did not call any live witnesses apart from the joint Defence expert witness The Prosecution called 30 witnesses The Prosecution entered 260 exhibits into evidence The Defence for Fatmir Limaj called eight defence witnesses and the Defence for Haradin Bala called seven defence witnesses One expert witness was called as a joint Defence witness In total the Defence entered 44 exhibits The Prosecution tendered 31 92bis statements At the request of the Defence for Fatmir Limaj three 92bis statements were tendered one 92bis statement was tendered at the request of the Defence for Haradin Bala and twelve at the request of the Defence for Isak Musliu The closing arguments were heard between 29 August and 1 September 2005 2 Matters relating to witnesses 764 Several motions were filed by the Prosecution for the protection of victims and witnesses and for the protection of other confidential material under Rule 75 of the Rules The Chamber granted the Prosecution’s request for protective measures with respect to thirteen prosecution witnesses 765 On 11 April 2005 the Prosecution filed a Motion seeking protective measures for certain witnesses whose statements were admitted under Rule 92bis The request was granted by the Chamber on 14 April 2005 2469 766 The Defence counsel for all three Accused in this case requested an order pursuant to Rule 74 that the Prosecution cease “proofing” witnesses with immediate effect or an order that a representative of the Defence be permitted to attend the Prosecution’s proofing sessions or that the Defence be provided with a video or tape-recording of proofing sessions The Chamber denied the Motion and found that proofing was a necessary and established procedure The Chamber found that nothing had been submitted by the Defence that persuaded the Chamber that proper standards of proofing were not being observed 2470 767 By various decisions the Chamber issued subpoenas with respect to 14 witnesses 2471 768 In the course of the presentation of its case the Prosecution requested that four Prosecution witnesses all former KLA members be declared hostile The Chamber made a number of oral rulings in respect of hostile witnesses The Chamber denied the request with respect to Sylejman 2469 2470 2471 Decision on Prosecution’s Motion for Protective Measures Regarding Rule 92bis witnesses 14 April 2005 Decision on the Defence Motion on Prosecution Practice of “Proofing Witnesses” 10 December 2004 Decision on the Prosecution Motion for Issuance of Subpoenas 2 November 2004 Decision on the Prosecution’s Second Motion for Issuance of Subpoenas 15 November 2004 Decision on the Prosecution’s Third Motion for Issuance of Subpoenas 15 December 2004 Decision on the Prosecution’s Fourth Motion for Issuance of Subpoenas 14 January 2005 Decision on the Prosecution’s Fifth Motion for Issuance of Subpoenas 20 January 2005 Decision on the Prosecution’s Sixth Motion for Issuance of Subpoenas 28 January 2005 310 Case No type Case # type date Selimi on the grounds that although the Chamber conceded that there was some discrepancy between the witness’ viva voce evidence and his prior statement the matters identified by the Prosecution appeared to have no material distinction and any change in position did not appear to the Chamber to be motivated by a hostility to the Prosecution 2472 The Chamber however granted three subsequent requests from the Prosecution with respect to Ramadam Behluli2473 Ruzhdi Karpuzi2474 and Shukri Buja2475 on the grounds that there were material differences between their oral evidence and prior statements and on consideration of the witnesses explanations for these differences together with their general demeanour the Chamber was persuaded that they were not prepared to tell the truth The Prosecution was allowed to cross-examine all three witnesses 3 Evidentiary issues 769 On 17 November 2004 the Chamber granted a Motion filed by the Defence for Haradin Bala seeking to exclude a statement made by Accused Haradin Bala in an interview with an investigator with the OTP on 17 February 2003 2476 770 On 1 February 2005 the Prosecution filed a Motion pursuant to Rule 67 A i a requesting the Chamber to order the Defence for Haradin Bala and Isak Musliu to provide details of any alibi defence within seven days On 16 February 2005 the Chamber ordered the Defence to notify the Prosecution by 28 February 2005 of any alibi they wish to raise as a defence and in such case to specify the place or places the Accused claims to have been the names and addresses of any witnesses and any other evidence relied upon 2477 The Defence for Haradin Bala filed its alibi notice on 28 February 2005 2478 The Defence for Isak Musliu filed its alibi notice on 1 March 2005 2479 771 The Prosecution filed a Motion seeking the admission as substantive evidence of video- recordings with transcripts of the interviews given to representatives of the OTP by two witnesses who were called to testify for the Prosecution and gave oral evidence inconsistent in some significant respects with what they had previously said in the course of the interviews The videorecordings and the transcripts had been admitted into evidence already for the purpose of assessing the credibility of the witnesses The effect was that the oral evidence given by each witness during 2472 2473 2474 2475 2476 2477 2478 Oral Decision of the Chamber 18 January 2005 Oral Decision of the Chamber 1 February 2005 Oral Decision of the Chamber 8 February 2005 Oral Decision of the Chamber 9 March 2005 Decision on Defence Motion to Exclude Statements Made by Haradin Bala in Interview of 17 February 2003 17 November 2004 Decision on notice of alibi pursuant to Rules 54 and 67 A of the Rules of Procedure and Evidence 16 February 2005 Alibi Notice of Haradin Bala Submitted pursuant to Rule 67 A i a 28 February 2005 311 Case No type Case # type date examination-in-chief was significantly less favourable to the Prosecution than the earlier interview with the OTP Each of the two witnesses had been declared hostile and in the particular circumstances the Chamber granted the Motion to admit the prior inconsistent statements as substantive evidence 772 On 24 May 2005 the Defence filed a Joint Motion requesting that the Chamber a find that the Prosecution has violated its disclosure obligations pursuant to Rules 66 and 68 b order the immediate disclosure of any remaining exculpatory material that has not been yet revealed and c provide an appropriate remedy under Rule 68bis On 1 June 2005 the Joint Defence moved another motion orally seeking relief for the late disclosure by the Prosecution of a further document On 7 June 2005 the Chamber dismissed the Motion and found that it has not been shown that there had been any substantial or systematic failure by the Prosecution in respect of disclosure The Chamber held that where late disclosure had occurred steps had been taken to ensure that no material prejudice was caused to the Defence 2480 773 The Prosecution put forth a Motion to admit four rebuttal statements pursuant to Rules 85 and 92bis On 7 July 2005 the Chamber partly granted the Prosecution request in that it allowed the first three statements as rebuttal evidence but denied admission of the fourth statement as it related to an issue which could have been anticipated by the Prosecution 2481 774 On 12 July 2005 the Defence filed a joint Motion to admit a rejoinder statement pursuant to Rule 92bis The request was denied by the Chamber on 18 July 2005 on the basis that the evidence did not have the requisite probative value 2482 4 Provisional release 775 The Defence for Fatmir Limaj filed a Motion on 5 September 2005 for the Provisional Release of the Accused pending judgement or for such shorter period as the Chamber saw fit 2483 The application was denied by the Chamber on 26 October 2005 on the grounds that the UNMIK guarantee was conditional and limited in nature that at that stage in the proceedings the potential risk of flight could well be at its uppermost and that there was an absence of appropriate security and financial arrangements for the movement of the Accused to and from Kosovo 2484 2479 2480 2481 2482 2483 2484 Alibi Notice of Isak Musliu Submitted pursuant to Rule 67 A i a 1 March 2005 Decision on Joint Defence Motion on Prosecutions’s Late and Incomplete Disclosure 7 June 2005 Decision on the Prosecution’s Motion to Admit Rebuttal Statements via Rule 92bis 7 July 2005 Decision on Joint Defence Motion to Admit Rejoinder Statement via Rule 92bis 18 July 2005 Defence Renewed Motion for Provisional Release of Fatmir Limaj 5 September 2005 Decision on Defence Renewed Motion for Provisional Release of Fatmir Limaj 26 October 2005 312 Case No type Case # type date