International Tribunal for the UNITED Prosecution of Persons Responsible for NATIONS Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 Case No Date IT-04-84-T 3 April 2008 Original English IN TRIAL CHAMBER I Before Judge Alphons Orie Presiding Judge Frank Höpfel Judge Ole Bjørn Støle Registrar Mr Hans Holthuis Judgement of 3 April 2008 PROSECUTOR v RAMUSH HARADINAJ IDRIZ BALAJ LAHI BRAHIMAJ PUBLIC ______________________________________________________________________ JUDGEMENT ______________________________________________________________________ Office of the Prosecutor Counsel for Ramush Haradinaj Mr David Re Mr Gramsci di Fazio Mr Gilles Dutertre Mr Philip Kearney Mr Ben Emmerson QC Mr Rodney Dixon Ms Susan L Park Counsel for Idriz Balaj Mr Gregor Guy-Smith Ms Colleen Rohan Counsel for Lahi Brahimaj Mr Richard Harvey Mr Paul Troop Table of contents General abbreviations 5 1 Introduction 6 2 Evidentiary issues 9 2 1 Sources and use of evidence 9 2 2 Difficulties with obtaining witness testimony 14 2 3 Identification evidence 18 3 General elements for Article 3 of the Statute 20 3 1 Law on general elements 20 3 2 Findings on the existence of an armed conflict 33 3 2 1 Organization of the KLA 33 3 2 2 Intensity 49 3 2 3 Conclusion 56 4 General elements and jurisdictional requirement for Article 5 of the Statute 58 4 1 Law on general elements and the jurisdictional requirement 58 4 2 Findings 60 5 Law on crimes under Article 3 of the Statute and individual responsibility 5 1 Crimes 68 68 5 1 1 Murder 68 5 1 2 Torture and cruel treatment 68 5 1 3 Rape 69 5 1 4 Outrages upon personal dignity 70 5 2 Responsibility for crimes 70 5 2 1 Joint criminal enterprise 70 5 2 2 Committing planning instigating ordering and aiding and abetting 74 6 Findings on counts 77 6 1 General findings concerning the Radonjić Radoniq canal area 77 6 2 Cruel treatment torture and outrages upon the personal dignity of Witness 38 and the witness’s family Count 2 86 6 3 Cruel treatment and torture of Dragoslav Stojanović and others Count 4 92 6 4 Cruel treatment and torture of Staniša Radoševic and Novak Stijović Count 6 103 6 5 Murder of Vukosava Marković and Darinka Kovać Count 8 109 6 6 Murder of Milovan and Milka Vlahović Count 10 113 Case No IT-04-84-T 2 3 April 2008 6 7 Murder of Slobodan Radošević and Miloš Radunović Count 12 118 6 8 Cruel treatment and murder of the relatives of Witness 4 and Witness 19 Count 14 125 6 9 Cruel treatment and murder of Hajrullah Gashi and Isuf Hoxha Count 16 140 6 10 Cruel treatment and murder of Ilira and Tush Frrokaj Count 18 143 6 11 Cruel treatment torture and murder of Zenun Gashi and Misin and Sali Berisha Count 20 149 6 12 Murders related to the Radonjić Radoniq canal area Count 22 156 6 12 1 Murder of Afrim Sylejmani 156 6 12 2 Murder of Rade Popadić 158 6 12 3 Murder of Ilija Antić 163 6 12 4 Murder of Idriz Hoti 166 6 12 5 Murder of Kujtim Imeraj 169 6 12 6 Murder of Nurije and Istref Krasniqi 172 6 12 7 Murder of Zdravko Radunović 177 6 12 8 Murder of Velizar Stošić 179 6 12 9 Murder of Malush Shefki Meha 181 6 12 10 Murder of Xhevat Berisha 183 6 12 11 Murder of Kemajl Gashi 184 6 12 12 Murder of Sanije Balaj 186 6 12 13 Murder of Sejd Noci 203 6 12 14 Murder of five unidentified people 206 6 13 Cruel treatment torture and murder of Ivan Zarić and others Count 24 208 6 14 Cruel treatment and murder of Ukë Rexhepaj and Nasret Alijaj Count 26 211 6 15 Cruel treatment and torture of Witness 6 Count 28 213 6 16 Cruel treatment torture and murder of Nenad Remištar and four unidentified people Count 30 224 6 17 Jablanica Jabllanicë KLA headquarters Count 32 228 6 17 1 Cruel treatment torture and murder of Pal Krasniqi 228 6 17 2 Cruel treatment torture and murder of Skender Kuqi 236 6 17 3 Cruel treatment and torture of Witness 3 and two other men 243 6 18 Cruel treatment and torture of Naser Lika and others Count 34 250 6 19 Rape of Witness 61 and cruel treatment and torture of Witness 1 Counts 36 and 37 253 7 The Accused’s participation in a joint criminal enterprise 261 8 Cumulative convictions 266 Case No IT-04-84-T 3 3 April 2008 9 Sentencing 268 9 1 Law on sentencing 268 9 2 Purpose of sentencing 269 9 3 Sentencing factors 270 9 3 1 Gravity of the offences and the totality of the culpable conduct 270 9 3 2 Individual circumstances of Lahi Brahimaj 273 9 3 3 General practice regarding the prison sentences in the courts of the former Yugoslavia 274 9 3 4 Credit for the time served in custody 9 4 Determination of sentence 276 276 10 Disposition 277 11 Partly dissenting opinion of Judge Höpfel on Count 14 278 Appendices 280 A Procedural history 280 B Table of cases with abbreviations 292 Case No IT-04-84-T 4 3 April 2008 General abbreviations DEM Deutsche Mark ECMM European Community Monitoring Mission FARK Forcat e Armatousa të Republikës së Kosovës – Armed Forces of the Republic of Kosovo FRY Federal Republic of Yugoslavia HLC Humanitarian Law Center ICMP International Commission on Missing Persons JNA Jugoslovenska Narodna Armija – Yugoslav People’s Army JSO Jedinica za Specijalne Operacije – Special Operations Unit also known as Red Berets or “Frenki’s boys” KLA Kosovo Liberation Army – Ushtria Çlirimtare e Kosovës UÇK LDK Lidhja Demokratike e Kosovës – Democratic League of Kosovo MUP Ministarstvo Unutrašnjih Poslova – Ministry of Internal Affairs NATO North Atlantic Treaty Organization OMPF UNMIK’s Office on Missing Persons and Forensics PJP Posebne Jedinice Policije – Special Units of the Police RDB Resor Drzavne Bezbednosti – State Security Service SFRY Socialist Federal Republic of Yugoslavia SAJ Specijalna Anit-teroristička Jedinica – Special Anti-terrorist Unit T Transcripts in Prosecutor v Ramush Haradinaj et al TO Teritorijalna Odbrana – Territorial Defence UNMIK United Nations Interim Administration Mission in Kosovo VJ Vojska Jugoslavije – Yugoslav Army former JNA army of the FRY Case No IT-04-84-T 5 3 April 2008 1 Introduction 1 The Accused Ramush Haradinaj Idriz Balaj and Lahi Brahimaj are jointly charged in the Fourth Amended Indictment hereinafter referred to as “the Indictment” with crimes allegedly committed between 1 March 1998 and 30 September 1998 against Serbian and Kosovar Roma Egyptian civilians as well as Kosovar Albanian civilians perceived to be collaborating with Serbian forces in the Dukagjin area of Kosovo Kosova 1 It is alleged that during this period the KLA persecuted and abducted the victims mentioned in the Indictment in order to consolidate total control over the Dukagjin area In doing so the Indictment alleges that the KLA used the Radonjić Radoniq canal area to carry out executions and dump the bodies of 30 of their victims It is further alleged that the KLA established a make-shift detention facility at the Jablanica Jabllanicë compound in Đakovica Gjakovë municipality where detainees were regularly beaten and subjected to other forms of physical mistreatment 2 The Prosecution alleges that from at least 1 March 1998 until mid-June 1998 Ramush Haradinaj was a de facto commander in the KLA and that from mid-June he became a de jure commander According to the Indictment each KLA operational area in Kosovo Kosova such as the Dukagjin area located in western Kosovo Kosova and allegedly commanded by Ramush Haradinaj acted independently of the senior command authority As such Ramush Haradinaj had overall command of the KLA forces in the Dukagjin area This area was extensive encompassing the municipalities of Peć Pejë Dečani Deçan Đakovica Gjakovë and parts of the municipalities of Istok Istog and Klina Klinë 3 The Prosecution alleges that Idriz Balaj at all times relevant to the Indictment commanded a unit within the KLA known as the Black Eagles which operated throughout the Dukagjin area as a Rapid Intervention Special Unit According to the Indictment as Commander of the Black Eagles Idriz Balaj was directly subordinate to Ramush Haradinaj and worked closely with him 4 The Prosecution alleges that Lahi Brahimaj throughout the indictment period was a member of the KLA and stationed at the headquarters in Jablanica Jabllanicë According to the Indictment he was appointed Deputy Commander of the Dukagjin 1 The Trial Chamber has referred to locations in Kosovo Kosova throughout the Judgement both by their Bosnian Croatian Serbian BCS and their Albanian names The name of any given location therefore appears in the text in BCS Albanian Case No IT-04-84-T 6 3 April 2008 area on 23 June 1998 a post he retained until 5 July 1998 when he was removed from this position Despite his removal from this post he continued to serve as Finance Director of the KLA General Staff The Prosecution alleges that throughout the indictment period Lahi Brahimaj was subordinate to and worked closely with Ramush Haradinaj 5 The three Accused are each charged as participants in a joint criminal enterprise for the crimes under all counts of the Indictment The alleged common criminal purpose was to consolidate total KLA control over the Dukagjin area by the unlawful removal and mistreatment of the aforementioned types of civilians According to the Indictment this involved the commission of crimes against humanity under Article 5 of the Statute and violations of the laws or customs of war under Article 3 of the Statute including murder torture and cruel treatment In the alternative all three Accused are charged in respect of several of these crimes with individual criminal responsibility under Article 7 1 of the Statute for allegedly committing them or planning instigating ordering or aiding and abetting their commission The Defence on behalf of each of the three Accused has submitted that the Accused are not guilty and should therefore be acquitted 6 The Trial Chamber heard a total of 81 viva voce witnesses and received the evidence of 16 witnesses pursuant to Rule 92 bis and quater of the Rules of Procedure and Evidence “Rules” The Defence chose neither to make any submissions pursuant to Rule 98 bis nor to call any witnesses The Trial Chamber has therefore relied on the evidence provided by the Prosecution and elicited by the Defence in cross-examination as well as the evidence of one Trial Chamber witness in evaluating the case against the three Accused As will be discussed in section 2 2 below throughout the trial the Trial Chamber encountered significant difficulties in securing the testimony of a large number of witnesses Many witnesses cited fear as a prominent reason for not wishing to appear before the Trial Chamber to give evidence The Trial Chamber gained a strong impression that the trial was being held in an atmosphere where witnesses felt unsafe This was due to a number of factors specific to Kosovo Kosova for example Kosovo Kosova’s small communities and tight family and community networks which made guaranteeing anonymity difficult 2 The parties themselves agreed that an unstable security situation existed in Kosovo Kosova that was particularly unfavourable to 2 See Decision on Motion on Behalf of Ramush Haradinaj for Provisional Release 20 July 2007 Case No IT-04-84-T 7 3 April 2008 witnesses 3 Given these circumstance the Trial Chamber made use of all its powers under the Rules to ensure the fair and expeditious conduct of the proceedings as well as the protection and well-being of witnesses who appeared before it 3 T 3955-3956 Case No IT-04-84-T 8 3 April 2008 2 Evidentiary issues 2 1 Sources and use of evidence 7 Pursuant to Article 21 3 of the Statute the Accused are entitled to a presumption of innocence Pursuant to Rule 87 A of the Rules the standard for determining guilt is proof beyond a reasonable doubt Accordingly each and every element of the offences charged against an accused must be proven beyond a reasonable doubt This burden remains with the Prosecution throughout the trial 4 An accused must be acquitted if there is any reasonable explanation of the evidence other than the guilt of the accused 5 8 The sources of evidence in the present case included the viva voce testimonies of fact and expert witnesses appearing before the Trial Chamber and called by the Prosecution or in the case of one witness by the Trial Chamber 6 written witness statements admitted pursuant to Rules 92 bis 92 ter and 92 quater of the Rules including transcripts of the testimony of witnesses who were heard by other Trial Chambers of this Tribunal agreed facts and documents such as exhumation reports orders photographs and maps tendered and admitted as exhibits in connection with witness testimonies or admitted from the bar table pursuant to Rule 89 C of the Rules 7 9 According to Rule 89 C a party introducing evidence must show that it is relevant and has probative value Generally the reliability of evidence is a factor going to weight rather than admissibility 10 The Trial Chamber has admitted evidence tendered pursuant to Rule 92 ter in relation to 38 witnesses out of a total of 81 viva voce witnesses The Trial Chamber also admitted testimony of 16 witnesses pursuant to Rule 92 bis Rule 92 ter allows for the admission of evidence that goes to proof of acts and conduct of an accused 8 Nevertheless the Trial Chamber expressed a strong preference that such evidence as well as evidence that was central and critical to the case be elicited orally from a 4 Brđanin Trial Judgement para 22 Čelebići Appeal Judgement para 458 6 The Trial Chamber called one witness Maklen Misha during the Prosecution’s case The Defence did not call any witnesses 7 See Decision on Prosecution’s Motion to Tender Documents on Its 65ter Exhibit List 30 November 2007 8 Rule 92 ter B 5 Case No IT-04-84-T 9 3 April 2008 witness in court 9 Also Rule 92 quater allows for the admission of evidence that goes to proof of acts and conduct of an accused although this may be a factor weighing against admission 10 The Trial Chamber admitted statements of two deceased witnesses pursuant to this rule 11 As for such portions of the statements that went to proof of the acts and conduct of one of the Accused or were central to the Prosecution’s case the Trial Chamber decided to only admit them if it was satisfied that they were reliable 12 In its assessment the Trial Chamber considered whether the statements were corroborated by other evidence and whether the statements were internally consistent 13 11 As for the admission of documentary evidence the Trial Chamber emphasized that it was for the Prosecution to carefully select the evidence to present to the Trial Chamber in the most comprehensible and efficient manner 14 When better evidence on an issue had already been admitted the Trial Chamber would at times not admit repetitive evidence of lesser quality on that same issue 15 12 The Trial Chamber considered the charges against the Accused in light of all the evidence it admitted during the trial It assessed the evidence in accordance with the Statute the Rules and the jurisprudence of the Tribunal When no guidance was found in these sources the Trial Chamber decided matters of evidence in such a way as would best favour a fair determination of the case in consonance with the spirit of the Statute and the general principles of law 16 13 When evaluating the evidence given viva voce the Trial Chamber considered the demeanour of witnesses It further considered the individual circumstances of a witness including his or her possible involvement in the events and fear of self-incrimination the witness’s relationship with any of the Accused and whether the witness would have 9 T 5085 Decision on the Admission of Zoran Stijović’s Rule 92 ter Statement and Its Annexes 29 November 2007 para 11 10 Rule 92 quater B 11 Decision on Prosecution’s Motion for Admission of Evidence pursuant to Rule 92 quater and 13th Motion for Trial-Related Protective Measures 7 September 2007 Decision on Prosecution’s Motion to Admit Five Statements of Witness 1 into Evidence Pursuant to Rule 92 quater with Confidential Annex 28 November 2007 12 Decision on Prosecution’s Motion to Admit Five Statements of Witness 1 into Evidence Pursuant to Rule 92 quater with Confidential Annex 28 November 2007 para 11 13 Ibid paras 11-20 14 Decision on Admission into Evidence of Documents Tendered during Testimony of Achilleas Pappas 17 September 2007 para 6 15 Decision on Admission into Evidence of Documents Tendered during Testimony of Bislim Zyrapi 15 October 2007 para 12 Decision on Admission into Evidence of Documents Tendered during Testimony of Witness 69 28 November 2007 para 9 Decision on the Admission of Zoran Stijović’s Rule 92 ter Statement and Its Annexes 29 November 2007 para 12 Case No IT-04-84-T 10 3 April 2008 an underlying motive to give a certain version of the events The Trial Chamber also assessed the internal consistency of each witness’s testimony and other features of his or her evidence as well as whether there was corroborating evidence The evidence presented in this case relates to events which occurred in 1998 the Trial Chamber has therefore not treated minor discrepancies between the evidence of witnesses or between the evidence of a particular witness in court and his or her prior statement as discrediting the evidence where the witnesses nevertheless recounted the essence of an incident charged in acceptable detail without undermining the fundamental features of their evidence 17 Some of the witnesses that were former members of the warring factions were evasive or not entirely truthful regarding the roles they played in the events in Kosovo Kosova in 1998 Although aware of this the Trial Chamber nevertheless sometimes relied on other aspects of these witnesses’ testimonies This is consistent with the jurisprudence of the Tribunal according to which it is not unreasonable for a Trial Chamber to accept certain parts of witness’s testimony while rejecting others 18 14 On several occasions only one witness gave evidence of an incident with which the Accused were charged The Appeals Chamber has held that the testimony of a single witness on a material fact does not as a matter of law require corroboration 19 On these occasions the Trial Chamber exercised particular caution considering all circumstances relevant to the testimony of the witness including any possible underlying motive for the witness’s testimony and other factors mentioned 15 The Trial Chamber decided not to consider the testimony of one witness Witness 8 It found this witness to be so lacking in reliability and credibility that it could not rely on his testimony for any findings concerning the facts alleged in the Indictment 20 As set out in section 6 12 11 below the Trial Chamber found Medin Gashi’s testimony largely unreliable and therefore accepted only a small portion of it as factually accurate 16 Rule 89 B of the Rules See Čelebići Appeal Judgement paras 484-485 496-498 Kupreškić et al Appeal Judgement para 31 18 Kupreškić et al Appeal Judgement para 333 Blagojević and Jokić Appeal Judgement para 82 19 Tadić Appeal Judgement para 65 Aleksovski Appeal Judgement para 62 Čelebići Appeal Judgement para 492 Kupreškić et al Appeal Judgement para 33 20 For more details see Decision on Whether to Resume Hearing Testimony of Witness 8 and Call Chamber Witness 20 June 2007 17 Case No IT-04-84-T 11 3 April 2008 16 When assessing and weighing the testimony of expert witnesses the Trial Chamber considered factors such as the professional competence of the expert the methodologies used the credibility of the findings made in light of these factors and other evidence the position or positions held by the expert the limits of the expertise of each witness and the relevance and reliability of his or her evidence 17 The parties filed joint motions on agreed facts on 26 and 30 November 2007 after hearing the last witness called by the Prosecution The Trial Chamber considered these agreed facts together with all the other evidence presented in the case 18 When assessing documentary evidence the Trial Chamber considered the origin of the document the author and his or her role in the relevant events the chain of custody of the document to the extent that it was known the source of the information contained in the document and whether that information was corroborated by witnesses or other documents The Trial Chamber did not consider unsigned undated or unstamped documents a priori to be void of authenticity When the Trial Chamber was satisfied of the authenticity of a particular document it did not automatically accept the statements contained therein to be an accurate portrayal of the facts Accordingly the Trial Chamber could admit a document into evidence because it seemed genuine and relevant to the case but finally find that the document’s significance in the context of all the evidence remained obscure and therefore give it little or no weight 21 As a general rule the less the Trial Chamber knew about a document the circumstances of its creation and usage the less weight it gave to it 22 19 In addition to direct evidence the Trial Chamber has admitted hearsay and circumstantial evidence In evaluating the probative value of hearsay evidence the Trial Chamber carefully considered all indicia of its reliability including whether the evidence was truthful trustworthy and stemmed from a source that gave it voluntarily whether it was first-hand or further removed the absence of an opportunity to crossexamine the person who made the statement and the circumstances under which the hearsay evidence arose 23 In general the Trial Chamber clarified that it attached little if any weight to unexplained opinions and untested hearsay and that an accumulation of 21 Decision on Admission into Evidence of Documents Tendered during Testimony of Bislim Zyrapi 15 October 2007 para 9 22 Decision on Admission into Evidence of Documents Tendered during Testimony of Bislim Zyrapi 15 October 2007 para 8 Case No IT-04-84-T 12 3 April 2008 such evidence did not necessarily make it stronger 24 The Trial Chamber denied admission of many documents containing statements concerning the acts and conduct of the Accused given by persons who were not available for cross-examination by the Defence 25 These were not statements tendered pursuant to Rules 92 bis 92 ter or 92 quater of the Rules but documents such as reports of interviews conducted by the police or intelligence services In this respect the Trial Chamber received evidence that some of the persons interviewed by the Serbian police might have been beaten 26 The Trial Chamber also heard evidence that the RDB would receive information from informers who were rewarded depending on both the significance and type of information provided 27 The motivation of these informers was money politics or sometimes they were blackmailed by the RDB 28 One example of documents that the Trial Chamber decided not to admit was the two statements given to the Serbian MUP by Krist and Lëk Pervorfi in October 1998 which the Prosecution sought to have admitted through Zoran Stijović They concerned the alleged involvement of a witness in this case Pjetër Shala in the disappearance of Zdravko Radunović Zoran Stijović was not in a position to shed any light on the circumstances in which the statements were produced merely confirming that the two statements were given to the MUP 29 Pjetër Shala was not questioned about the disappearance of Zdravko Radunović Furthermore the Defence alleged and the Prosecution acknowledged that Lëk Pervorfi had later denied the truth of the account in the statement adding that the statement was not given voluntarily 30 For these reasons the Trial Chamber denied their admission as it considered that the doubts as to their reliability were so strong that the documents lacked probative value 31 20 As for circumstantial evidence the Trial Chamber considered that such evidence alone may be sufficient for a conviction or a finding of fact beyond a reasonable 23 See Prosecutor v Aleksovski Decision on Prosecutor’s Appeal on Admissibility of Evidence 16 February 1999 para 15 24 Decision on Admission into Evidence of Documents Tendered during Testimony of Achilleas Pappas 17 September 2007 para 6 25 See for example Decision on Admission into Evidence of Documents Tendered during Testimony of Witness 69 28 November 2007 para 13 Decision on the Admission of Zoran Stijović’s Rule 92ter Statement and Its Annexes 29 November 2007 para 11 26 Nebojša Avramović T 6626-6627 27 Zoran Stijović T 8884 8891 8893-8894 28 Zoran Stijović T 8884-8886 29 T 9093-9094 30 See Decision on the Admission of Zoran Stijović’s Rule 92ter Statement and Its Annexes 29 November 2007 para 13 31 Decision on the Admission of Zoran Stijović’s Rule 92ter Statement and Its Annexes 29 November 2007 para 13 Case No IT-04-84-T 13 3 April 2008 doubt 32 However the conclusion drawn from the circumstantial evidence had to be the only reasonable conclusion available 33 21 Article 21 4 g of the Statute provides that no accused shall be compelled to testify against himself In the present case all of the Accused exercised their right not to testify No adverse inferences were drawn from this fact 2 2 Difficulties with obtaining witness testimony 22 A high proportion of Prosecution witnesses in this case expressed a fear of appearing before the Trial Chamber to give evidence Protective measures aimed at concealing the identity of a witness from the public were granted to 34 Prosecution witnesses The test used by the Trial Chamber for granting protective measures was the demonstration of an objectively grounded risk to the security or welfare of the witness or the witness’s family should it become known that the witness had given evidence before the Tribunal 34 Subpoenas to testify were issued to 18 Prosecution witnesses The main reason for having requested the subpoenas was that the prospect of protective measures did not allay the witnesses’ fears Of the subpoenaed witnesses 13 ultimately complied with the subpoena and appeared before the Trial Chamber to testify The statement of one was admitted pursuant to Rule 92 bis 35 One of the subpoenaed witnesses Witness 55 began to testify but claimed that he was under a great deal of stress and feared for his safety and that he was therefore unable to complete his testimony The Trial Chamber observed that the witness was clearly not in good health and the Victims and Witnesses Section of the Tribunal informed the Trial Chamber that the witness had been taken to a doctor and prescribed medication The witness had at this stage not completed his testimony in chief and consequently had not been subjected to cross-examination by the Defence The Trial Chamber concluded that it would not be 32 See Kupreškić Appeal Judgement para 303 See Čelebići Appeal Judgement para 458 34 See for example T 694-695 Decision on the Admission of a Prosecution Witness Statement under Rule 92 bis and Prosecution’s 17th Motion for Protective Measures 29 October 2007 para 3 Decision on Prosecution’s 30th and 31st Motions for Trial-Related Protective Measures 6 November 2007 para 2 Decision on Fourth Batch of 92 bis Witnesses and Protective Measures for One of These Witnesses 6 November 2007 35 See Decision on the Admission of a Prosecution Witness Statement under Rule 92 bis and Prosecution’s 17th Motion for Protective Measures 29 October 2007 33 Case No IT-04-84-T 14 3 April 2008 in the interests of justice to continue hearing Witness 55’s testimony 36 The witness was not recalled and his testimony was excluded from the evidence 37 23 Two subpoenaed witnesses Ramo Jollaj and Witness 65 stated that they were unwilling to travel to The Hague to give testimony because of a combination of personal family and security concerns The witnesses were living under extreme economic and social hardship in a refugee camp and their large families were dependent solely or primarily on them for their livelihood and security The Trial Chamber acknowledged that some of the concerns expressed by the witnesses could possibly be addressed through applications for protective measures while others could not The Trial Chamber found that the conditions described amounted to good reasons for the witnesses’s unwillingness to travel to The Hague to give testimony and decided to hear the testimonies of these witnesses via video-conference link 38 24 Four subpoenas issued by the Trial Chamber were not complied with 39 They were issued to Naser Lika Qerim Kuqi Avni Krasniqi and Sadri Selca For Qerim Kuqi and Sadri Selca rather than to issue an order in lieu of indictment and prosecute these matters itself the Trial Chamber invited the Prosecution to advise it on whether an investigation for contempt should be undertaken by the Prosecution The Trial Chamber considered in this respect that the Prosecution was best placed to consider all the circumstances relating to the witnesses including the value of their testimony any impact their non-compliance might have upon other prospective witnesses and the resource implications of an investigation for contempt 40 The Prosecution recommended for both witnesses that the Trial Chamber issue an order to the Prosecution to investigate the matter with a view to the preparation and submission of an indictment for contempt It also recommended that such an order be issued with regard to the non-compliance of the subpoena issued to Avni Krasniqi The Trial 36 T 9820-9822 T 10118 10652 10655 Reasons for the Trial Chamber’s Decision Not to Recall Witness 55 to Complete His Testimony 6 November 2007 Reasons for Trial Chamber’s Decision to Exclude the Evidence of Witness 55 under Rule 89 D and Deny His Testimony Pursuant to Rule 92 quater 14 December 2007 38 Decision on Video-conference Link for Witness 10 28 August 2007 Decision on Video-conference Link for Witness Number 48 in the Tentative Order of Testimony 28 August 2007 39 The full procedural history with regard to Naser Lika Avni Krasniqi and Sadri Selca is set out in Annex A 40 Invitation to Prosecution to Consider Initiating Contempt Proceedings against Qerim Kuqi 16 July 2007 Invitation to Prosecution to Consider Initiating Contempt Proceedings against Sadri Selca 23 August 2007 The Trial Chamber issued such invitations to two other witnesses as well see Invitation to 37 Case No IT-04-84-T 15 3 April 2008 Chamber accepted the Prosecution’s recommendations and directed the Prosecution to investigate those persons with a view to the preparation and submission of an indictment for contempt 41 On 31 October 2007 Qerim Kuqi testified by means of video-conference link No indictment for contempt was issued against him As for Avni Krasniqi and Sadri Selca the Prosecution submitted indictments for contempt of the Tribunal The Trial Chamber confirmed these indictments 42 Avni Krasniqi and Sadri Selca were subsequently arrested and transferred to The Hague Before the initial appearances in their contempt cases the two decided to testify Avni Krasniqi testified on 14-15 November 2007 and Sadri Selca testified on 15 November 2007 Following their testimonies the Prosecution requested leave to withdraw the indictment for contempt This was granted by the Trial Chamber that heard the contempt cases 43 25 In relation to the fourth witness who defied a subpoena Naser Lika the Trial Chamber undertook various measures in order to obtain his testimony On 14 September 2007 it decided to hear the witness via video-conference link since the evidence about the witness’s medical conditions allowed it to conclude that he was not able to travel to The Hague to testify 44 On the day of the expected testimony the witness did however not appear before the Trial Chamber via video-conference link The Trial Chamber rescheduled the hearing but was on the relevant day informed that the witness had been hospitalized 45 The Trial Chamber did not receive Naser Lika’s testimony 26 Three Prosecution requests for subpoena were denied In the first case the Trial Chamber considered the expected testimony of the witness to be of low evidentiary value and therefore denied the application for a subpoena 46 For Vera Kovačević the Trial Chamber found the expected testimony to be of limited importance and not necessitating the issuance of a subpoena The testimony of this witness was however Prosecution to Consider Initiating Contempt Proceedings against Witness 55 20 July 2007 Invitation to Prosecution to Consider Initiating Contempt Proceedings against Witness 69 26 September 2007 41 Order to Prosecution to Investigate with a View to Preparation and Submission of an Indictment for Contempt 7 September 2007 Order Pursuant to Rule 77 C i in relation to Witness 18 31 October 2007 Order to Prosecution to Investigate with a View to Preparation and Submission of an Indictment for Contempt 31 October 2007 42 Decision on Review of Indictment 5 November 2007 Decision on Review of Indictment 7 November 2007 Lifting of Confidentiality 9 November 2007 Order on Lifting of Confidentiality 13 November 2007 43 T 10850 10891 Decision Granting the Prosecution’s Application to Withdraw an Indictment for Contempt against Avni Krasniqi 5 December 2007 Decision Granting the Prosecution’s Application to Withdraw an Indictment for Contempt against Sadri Selca 5 December 2007 44 Decision on Motion for Videolink Witness 30 14 September 2007 45 T 10621-10647 10975 46 T 4766-4767 Case No IT-04-84-T 16 3 April 2008 admitted pursuant to Rule 92 bis 47 The third denied request concerned a witness who was experiencing extreme emotions about testifying before the Tribunal The Victims and Witness Section of the Tribunal warned the Prosecution that there were risks in using this person as a witness unless threat assessment as well as other assessments were made The Prosecution had taken no steps to undertake such assessments Under those circumstances the Trial Chamber found it imprudent to compel the witness’s testimony 48 27 Two witnesses came to the Tribunal without being subpoenaed only to refuse to testify when invited to do so One witness refused to enter the courtroom After hearing a representative of the Victims and Witness Section of the Tribunal the Trial Chamber decided not to pursue the matter The Prosecution informed the Trial Chamber that the witness for all practical purposes was dropped from the witness list unless he should change his mind about testifying 49 Another witness Shefqet Kabashi entered the courtroom After confirming a few personal details he refused to answer any questions put to him by the Prosecution or the Trial Chamber on the substance of the case 50 Consequently the Trial Chamber issued an Order in Lieu of Indictment for contempt 51 However before his trial for contempt was due to start Kabashi left the Netherlands and returned to his place of residence in the United States The Trial Chamber considered and undertook various steps to obtain his evidence 52 On 1 November 2007 the Trial Chamber decided to hear Shefqet Kabashi by means of video-conference link 53 On 20 November 2007 the witness again refused to testify On 18 February 2008 the Trial Chamber granted the Prosecution leave to amend the indictment against Kabashi and ordered the Prosecution to make the indictment public 54 The contempt case against Shefqet Kabashi is still pending his arrest and transfer to The Hague 28 The difficulty in obtaining evidence was a prominent feature of this trial and a few witnesses who were expected to give evidence on central aspects of the case were 47 Decision Denying Subpoena ad Testificandum for Witness 15 and Instead Conditionally Admitting the Witness’s Statements Pursuant to Rule 92 bis 2 November 2007 48 Decision on Prosecution’s Motion to Have Witness 25 Subpoenaed to Testify 30 October 2007 49 T 1810-1820 50 The full procedural history is set out in Annex A 51 Order in Lieu of Indictment on Contempt Concerning Shefqet Kabashi 5 June 2007 52 See for an explanation T 10977 Decision on Prosecution’s Request for Certification to Appeal the Trial Chamber’s Decision Concerning Shefqet Kabashi 5 December 2007 Decision on Prosecution’s Request to Reopen Its Case to Hear Evidence of Shefqet Kabashi and for a Judicial Representation to the Authorities of the United States of America 21 December 2007 53 T 10118 Case No IT-04-84-T 17 3 April 2008 never heard As described the Trial Chamber made use of all its powers under the Rules to facilitate the reception of evidence without stepping beyond its role as an impartial finder of facts This resulted in the Trial Chamber receiving evidence from more than 90 witnesses 2 3 Identification evidence 29 On several occasions in order to determine the presence of an accused at a given time and place the Trial Chamber had to rely on the identification evidence of a single witness The Trial Chamber understands identification evidence to include both identification evidence stricto sensu and recognition evidence It was mindful of the differences between the two Identification evidence stricto sensu concerns the identification of a person the witness had not previously known as having been present at the relevant time and place Recognition evidence concerns the presence of a person at the relevant time and place when the witness knew the person from before In both cases identification evidence must be treated with caution as its quality can depend on many variables such as the vagaries of human perception and recollection The Trial Chamber has carefully evaluated any identification evidence especially if it was the only or vital evidence for an incident covered by a charge 55 In this evaluation the Trial Chamber was mindful of the guidance provided by the Appeals Chamber in the Kupreškić et al case The Appeals Chamber highlighted several factors to be considered when evaluating identification evidence including identification by witnesses who only had a fleeting glance or an obstructed view of an accused identification occurring in the dark identification as a result of a traumatic event experienced by the witness inconsistent or inaccurate testimony about the accused’s physical characteristics at the time of the event and a witness’s delayed assertion of memory regarding an accused coupled with the clear possibility from the circumstances that the witness had been influenced by suggestions from others 56 When confronted with recognition evidence rather than identification evidence stricto sensu the Trial Chamber also took into account the possibility of bias and the interval between the time the witness recognized the person and the time he had last seen him 54 Decision Granting Leave to Amend the Indictment 18 February 2008 See Kupreškić et al Appeal Judgement para 34 56 Kupreškić et al Appeal Judgement para 40 Limaj et al Appeal Judgement para 30 55 Case No IT-04-84-T 18 3 April 2008 30 Sometimes the Prosecution used photo boards as a means of obtaining identification evidence In general the Trial Chamber is satisfied that the photo boards were compiled in an effort to avoid influencing the witnesses to whom they were shown This included the selection of photographs of similar size colour and background lighting and portraying individuals bearing a resemblance to the Accused 57 31 The Prosecution has issued guidelines for the conduct of photo board identifications 58 The evidence shows that those guidelines were often not followed For example in some instances the Prosecution investigators forgot to first ascertain whether a witness had seen pictures of the suspect on television or in the newspapers or whether the witness’s recollection could have been tainted by various witnesses communicating with each other 59 In some cases the witness was not told that the photo board may or may not include the Accused 60 The physical responses of the witness were sometimes not noted down by the investigators 61 The Trial Chamber has considered when evaluating the weight of their evidence that the photo board identifications were often not carried out in full compliance with the guidelines 57 José Antonio Lorenzo Quiroz T 5864-5865 5909-5912 P375 Pekka Haverinen witness statement 26 June 2007 para 3 Pekka Haverinen T 6314-6315 6326-6327 6351 See also D119 ICTY OTP Photo board identification guidelines photographic procedures 58 D119 ICTY OTP Photo board identification guidelines photographic procedures D120 ICTY OTP Photo board identification report 59 Pekka Haverinen T 6327-6328 6333-6334 6351 60 José Antonio Lorenzo Quiroz T 5948-5949 D120 ICTY OTP Photo board identification report p 1 61 Pekka Haverinen T 6330 Barney Kelly T 6101-6102 Case No IT-04-84-T 19 3 April 2008 3 General elements for Article 3 of the Statute 3 1 Law on general elements 32 The Indictment charges the Accused with 19 counts of violations of the laws or customs of war under Article 3 of the Statute of which 18 are pursuant to Common Article 3 to the four Geneva Conventions of 1949 “Common Article 3” 62 Article 3 of the Statute states “The International Tribunal shall have the power to prosecute persons violating the laws or customs of war” The jurisdictional requirements and general elements are analysed below 33 Article 3 of the Statute is a “residual clause” which gives the Tribunal jurisdiction over any serious violation of international humanitarian law not covered by Articles 2 4 or 5 of the Statute 63 To fall within this residual jurisdiction the offence charged must meet four conditions i it must violate a rule of international humanitarian law ii the rule must bind the parties at the time of the alleged offence iii the rule must protect important values and its violation must have grave consequences for the victim and iv such a violation must entail the individual criminal responsibility of the perpetrator 64 34 It is well established in the jurisprudence of this Tribunal that violations of Common Article 3 fall within the ambit of Article 3 of the Statute 65 In the present case the charges of murder cruel treatment and torture as violations of the laws or customs of war are based on Common Article 3 1 a The charges of outrages upon personal dignity are based on Common Article 3 1 c All of these charges clearly meet the four jurisdictional requirements set out above The rules contained in Common Article 3 are part of customary international law applicable in non-international armed conflict 66 The crimes prohibited by Common Article 3 undoubtedly breach rules protecting important values and involve grave consequences for the victims They also entail 62 Counts 2 4 6 8 10 12 14 16 18 20 22 24 26 28 30 32 34 36 and 37 of the Indictment charge the Accused with violations of the laws or customs of war under Article 3 of the Statute of which only Count 36 is not based on Common Article 3 63 Tadić Jurisdiction Decision paras 89-93 Čelebići Appeal Judgement paras 125 131 133 64 Tadić Jurisdiction Decision paras 94 143 65 Tadić Jurisdiction Decision para 89 Čelebići Appeal Judgement paras 125 133-136 Kunarac et al Appeal Judgement para 68 66 Tadić Jurisdiction Decision paras 89 98 Čelebići Appeal Judgement paras 138-139 147 Case No IT-04-84-T 20 3 April 2008 individual criminal responsibility 67 The Chamber therefore has jurisdiction over such violations 35 Article 3 of the Statute also encompasses other rules of customary international law applicable in non-international armed conflict 68 One such rule forms the basis of the charge of rape in Count 36 of the Indictment The Appeals Chamber has found that rape constitutes a war crime under customary international law applicable in noninternational armed conflict and is encompassed by Article 3 of the Statute 69 36 Once jurisdiction is established there are three general conditions that must be met for the applicability of Article 3 of the Statute first there must be an armed conflict second there must be a nexus between the alleged offence and the armed conflict 70 and third for charges based on Common Article 3 the victim must not take active part in the hostilities at the time of the alleged offence 71 37 Armed Conflict The test for determining the existence of an armed conflict was set out by the Appeals Chamber in the Tadić Jurisdiction Decision A n 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 International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached or in the case of internal conflicts a peaceful settlement is achieved Until that moment international humanitarian law continues to apply in the whole territory of the warring States or in the case of internal conflicts the whole territory under the control of a party whether or not actual combat takes place there 72 38 This test serves to distinguish non-international armed conflict from banditry riots isolated acts of terrorism or similar situations 73 The Trial Chamber must determine whether i the armed violence is protracted and ii the parties to the conflict 67 Tadić Jurisdiction Decision para 134 Čelebići Appeal Judgement paras 173-174 Tadić Jurisdiction Decision para 89 Čelebići Appeal Judgement paras 125 133 69 Kunarac et al Appeal Judgement paras 187-195 70 Tadić Jurisdiction Decision para 70 Kunarac et al Appeal Judgement para 55 Stakić Appeal Judgement para 342 71 Common Article 3 1 Čelebići Appeal Judgement para 420 Krajišnik Trial Judgement para 847 72 Tadić Jurisdiction Decision para 70 See also Kunarac et al Appeal Judgement paras 56-57 Kordić and Čerkez Appeal Judgement paras 319 336 73 Kordić and Čerkez Appeal Judgement para 341 Tadić Trial Judgement para 562 Čelebići Trial Judgement para 184 Limaj et al Trial Judgement paras 84 89 See also Articles 8 2 d and f of the Rome Statute of the International Criminal Court 68 Case No IT-04-84-T 21 3 April 2008 are organized The Trial Chamber will proceed to examine how these criteria have been interpreted in previous cases of the Tribunal 39 The Trial Chamber will first examine how the criterion of “protracted armed violence” has been interpreted in practice 40 In the Tadić case the Appeals Chamber when applying its own test found that the fighting among various entities within the former Yugoslavia since 1991 exceeded the “intensity requirements” applicable to armed conflict 74 The Trial Chamber consequently interpreted the term “protracted armed violence” to refer to the “intensity of the conflict” 75 It faced the question whether an armed conflict existed in BosniaHerzegovina between the Government of Bosnia-Herzegovina and the Bosnian-Serb forces during the indictment period beginning on 23 May 1992 and ending about 31 December 1992 76 On 23 May 1992 armed Bosnian-Serb forces attacked the village of Hambarine shelling it during several hours and then entering the area supported by tanks this was followed by brief intermittent fighting 77 Many inhabitants fled 78 On 24 May 1992 Bosnian-Serb forces attacked Kozarac town and surrounding villages 79 The attack began with heavy shelling which lasted until 26 May 1992 followed by the advance of tanks and infantry 80 By 28 May 1992 many dwellings had been destroyed 81 Approximately 800 people were killed in the attack on Kozarac and an additional 1 200 captured among the attackers four soldiers were killed and fifteen injured 82 The Bosnian-Serb infantry forced the surviving civilian inhabitants to leave the town and surrounding villages 83 On 14 June 1992 armed Bosnian Serbs attacked two other villages with similar consequences 84 Kozarac was looted and further destroyed between June and August 1992 85 The Trial Chamber found that the fighting between the parties continued throughout Bosnia-Herzegovina until the conclusion of 74 Tadić Jurisdiction Decision para 70 Tadić Trial Judgement para 562 76 Tadić Trial Judgement paras 560 563 Tadić Second Amended Indictment 14 December 1995 para 1 77 Tadić Trial Judgement para 140 78 Tadić Trial Judgement para 141 79 Tadić Trial Judgement paras 143 565 80 Tadić Trial Judgement paras 143 565 81 Tadić Trial Judgement paras 143 565 82 Tadić Trial Judgement paras 145 565 83 Tadić Trial Judgement paras 143 146 565 84 Tadić Trial Judgement para 565 85 Tadić Trial Judgement paras 143 146 75 Case No IT-04-84-T 22 3 April 2008 the Dayton peace agreement 86 The Trial Chamber found a reflection of the intensity of the conflict in the continuous involvement of the UN Security Council acting under Chapter VII of the UN Charter 87 The Trial Chamber concluded that the intensity requirement was satisfied 88 41 In the Čelebići case the Trial Chamber applied the Tadić test to determine whether there was an armed conflict in Bosnia-Herzegovina involving the JNA the Bosnian TO the Bosnian MUP the Croatian Defence Council and the Bosnian-Serb army between May and December 1992 89 It found that in Bosnia-Herzegovina as a whole there was continuing armed violence at least from the date of its declaration of independence – 6 March 1992 – until the signing of the Dayton Peace Agreement in November 1995 90 Serb forces attacked and shelled many villages in Konjic municipality while the Bosnian TO the Bosnian MUP and the Croatian Defence Council mounted military operations against other villages 91 The shelling of Konjic town which began on 4 May 1992 continued daily for over three years inflicted substantial damage and resulted in the loss of many lives 92 The conflict caused many people to flee their homes 93 The Trial Chamber found that the fighting in BosniaHerzegovina as a whole as in Konjic itself was “clearly intense” consequently attracting the attention of international organizations including the UN Security Council which acted under Chapter VII of the UN Charter 94 Hence the conflict was sufficiently intense to satisfy the Tadić test 95 42 In the Slobodan Milošević case the Trial Chamber had to determine whether there was sufficient evidence for the purposes of Rule 98 bis of an armed conflict in Kosovo Kosova between 1 January 1999 which was the beginning of the related indictment period and 24 March 1999 when the NATO bombing campaign began 96 Relying on the Tadić “protracted armed violence” criterion the Trial Chamber 86 Tadić Trial Judgement para 566 Tadić Trial Judgement para 567 88 Tadić Trial Judgement para 568 89 Čelebići Trial Judgement paras 182-187 Čelebići Initial Indictment 21 March 1996 para 2 90 Čelebići Trial Judgement para 186 91 Čelebići Trial Judgement paras 134 138-139 189 92 Čelebići Trial Judgement para 134 93 Čelebići Trial Judgement paras 129-130 133 139 94 Čelebići Trial Judgement para 190 95 Čelebići Trial Judgement para 192 96 Slobodan Milošević Rule 98 bis Decision paras 14 22 Slobodan Milošević Second Amended Indictment for Kosovo 29 October 2001 paras 17 53 87 Case No IT-04-84-T 23 3 April 2008 examined the “intensity” of the conflict 97 Considering at first the time prior to the indictment period the Trial Chamber found that the KLA conducted many operations against the police during 1996 and 1997 and in 1997 killed about 20 persons having worked for or cooperated with the police 98 The KLA was equipped with rifles guns and mortars and by March 1997 received many weapons from Albania 99 The Trial Chamber noted a “large scale offensive” by Serbian forces against several villages on 23 August 1998 several armed clashes in the period 1998 through March 1999 and a “massive attack” by Serb forces around 10 January 1999 on many villages which were heavily shelled for two days 100 It also noted a major Serbian offensive between 24 September 1998 and 4 October 1998 involving “massive” Serbian forces and special military and paramilitary groups 101 There were clashes in many municipalities across Kosovo Kosova 102 The Trial Chamber was satisfied that the conflict in Kosovo Kosova during the period described above met the intensity part of the Tadić test for the purposes of Rule 98 bis 103 43 In the Kordić and Čerkez case in which the indictment period extended between November 1991 and March 1994 the Appeals Chamber had to decide a ground of appeal according to which the Trial Chamber had not made a factual finding that there had been protracted armed violence between the Croatian Defence Council and the Bosnian Army in Central Bosnia prior to 15 April 1993 104 The Appeals Chamber noted that the Croatian Defence Council had met “significant opposition” when taking control of the towns of Novi Travnik and Ahmići in October 1992 105 During a week of fighting in Novi Travnik civilian buildings were set on fire and demolished 106 In January 1993 the Croatian Defence Council attacked the Muslim part of Busovača town which was under fire from surrounding hills resulting in at least 27 deaths 107 The fighting spread throughout the municipality leading to the destruction of buildings in one village and the evacuation of its population 108 The fighting in Busovača municipality lasted at least 97 Slobodan Milošević Rule 98 bis Decision para 17 Slobodan Milošević Rule 98 bis Decision para 28 99 Slobodan Milošević Rule 98 bis Decision para 31 100 Slobodan Milošević Rule 98 bis Decision para 28 101 Slobodan Milošević Rule 98 bis Decision para 30 102 Slobodan Milošević Rule 98 bis Decision para 29 103 Slobodan Milošević Rule 98 bis Decision paras 17 27 32 40 104 Kordić and Čerkez Appeal Judgement para 334 105 Kordić and Čerkez Appeal Judgement para 338 106 Kordić and Čerkez Appeal Judgement paras 337-338 107 Kordić and Čerkez Appeal Judgement para 339 108 Kordić and Čerkez Appeal Judgement para 340 98 Case No IT-04-84-T 24 3 April 2008 three days 109 Noting “serious fighting for an extended period of time” since October 1992 the Appeals Chamber upheld the Trial Chamber’s finding that an armed conflict existed prior to April 1993 110 44 In the Halilović case the Trial Chamber applied the Tadić test to determine whether there was an armed conflict between the Croatian Defence Council the Bosnian Army and Bosnian-Serb army in the territory of Bosnia-Herzegovina between 8 and 14 September 1993 111 The Trial Chamber examined facts relevant to intensity in various areas of Bosnia-Herzegovina It noted many armed confrontations in the spring and summer of 1993 112 sometimes involving heavy shelling of towns and civilian casualties 113 and effectively cutting off lines of communication or transportation 114 It also noted blockades or sieges of towns lasting many months 115 the deployment of tens of thousands of troops 116 as well as the shifting of front lines 117 The Trial Chamber concluded that the conflict was sufficiently intense to satisfy the Tadić test and that an armed conflict existed at the relevant time 118 45 In the Limaj et al case the Trial Chamber had to examine whether an armed conflict between Serbian forces and the KLA existed in Kosovo Kosova by May 1998 and lasted until August 1998 119 Applying the “protracted armed violence” requirement of the Tadić test the Trial Chamber proceeded to examine the intensity of the conflict 120 It found that between early March and July 1998 in a wide geographical area of Kosovo Kosova there were many clashes combat operations and major offensives involving attacks on villages and police stations dozens of casualties heavy military vehicles such as armoured personnel carriers and tanks and heavy weapons such as machine guns mortars rocket launchers artillery and mines destruction of many buildings and departure of thousands of civilians 121 The Trial Chamber concluded that by the end of May 1998 and at least until 26 July 1998 armed clashes 109 Kordić and Čerkez Appeal Judgement paras 339-340 Kordić and Čerkez Appeal Judgement paras 336 341 111 Halilović Trial Judgement paras 6 8 24 160 173 112 Halilović Trial Judgement paras 161 163-166 169 113 Halilović Trial Judgement paras 164-165 168 114 Halilović Trial Judgement paras 164-165 115 Halilović Trial Judgement paras 166-168 116 Halilović Trial Judgement para 168 117 Halilović Trial Judgement paras 161-162 164-165 169 172 118 Halilović Trial Judgement para 173 119 Limaj et al Trial Judgement paras 83 93 Limaj et al Second Amended Indictment 12 February 2004 para 7 120 Limaj et al Trial Judgement paras 84 93 110 Case No IT-04-84-T 25 3 April 2008 occurred at intervals averaging three to seven days over a widespread and expanding geographic area 122 Faced with Serbian forces that were superior in number training and equipment the KLA nevertheless offered strong resistance and used effective guerrilla-type tactics avoiding prolonged fixed engagements with the Serb forces 123 In concluding that the level of intensity needed to establish the existence of an armed conflict had been reached before the end of May 1998 the Trial Chamber emphasized the sustained and geographically widespread nature of the armed clashes the military might of the Serbian forces the forced departure of civilians and the number of casualties 124 46 In the Hadžihasanović and Kubura case the Trial Chamber applied the Tadić test to examine whether there was sufficient evidence of an armed conflict between the Croatian Defence Council and the Bosnian Army in Central Bosnia-Herzegovina from 1993 up until 18 March 1994 when the parties signed the Washington peace accords 125 The Chamber noted numerous confrontations between the two armies in many municipalities in Central Bosnia-Herzegovina between late 1992 and January 1993 including an “outbreak of open hostilities” towards the end of January 1993 126 The fighting continued with “varying degrees of intensity” in several municipalities followed by an escalation in June 1993 and fighting continuing into the autumn of 1993 127 The Trial Chamber concluded that the intensity criterion had been met and that an armed conflict existed up until the conclusion of the Washington accords 128 47 In the Martić case the Trial Chamber applied the Tadić test to examine whether an armed conflict existed between Serb and Croat forces in the territory of Croatia between August 1991 and August 1995 129 With regard to intensity the Trial Chamber noted that armed clashes involving police and local people from both sides erupted already in April 1991 leading the JNA to create buffer zones between the parties 130 In August 1991 the hostilities intensified with the JNA the Serb TO and a unit within the 121 Limaj et al Trial Judgement paras 135-167 Limaj et al Trial Judgement para 168 123 Limaj et al Trial Judgement paras 169-170 124 Limaj et al Trial Judgement paras 134 171-173 125 Hadžihasanović and Kubura Trial Judgement paras 7 14 25 Annex I 126 Hadžihasanović and Kubura Trial Judgement paras 20-21 127 Hadžihasanović and Kubura Trial Judgement para 22 128 Hadžihasanović and Kubura Trial Judgement paras 20 25 129 Martić Trial Judgement paras 41 343 Martić Prosecution’s Final Brief 17 January 2007 para 356 130 Martić Trial Judgement para 344 122 Case No IT-04-84-T 26 3 April 2008 Serb MUP carrying out numerous attacks on villages with Croat majorities 131 Croatian National Guards Corps were also engaged in the hostilities 132 The conflict continued through 1995 with several attacks and incursions from both sides 133 The Trial Chamber concluded that the fighting was sufficiently intense and that an armed conflict existed at all relevant times 134 48 In the Mrkšić et al case the Trial Chamber applied the Tadić test to determine whether there was an armed conflict in Vukovar between Serb forces including the JNA Serb TOs and volunteer or paramilitary units and Croatian forces including the Croatian MUP National Guard Corps and other local volunteer defence groups on or about 18-21 November 1991 135 The Trial Chamber found that combat operations in the Vukovar area had gained in intensity during August and September 1991 136 Between 2 October and 18 November 1991 there was daily combat usually involving artillery mortars armoured vehicles including tanks weapons such as multiple rocket launchers and anti aircraft batteries as well as infantry weapons and at times air and naval forces 137 After the general surrender of Croat forces on 18 November 1991 isolated and less intense combat continued on 19 and 20 November 1991 138 The events attracted the attention of international organizations including the UN Security Council 139 The Trial Chamber was persuaded that the conflict was sufficiently intense to satisfy the Tadić test 140 49 The criterion of protracted armed violence has therefore been interpreted in practice including by the Tadić Trial Chamber itself as referring more to the intensity of the armed violence than to its duration Trial Chambers have relied on indicative factors relevant for assessing the “intensity” criterion none of which are in themselves essential to establish that the criterion is satisfied These indicative factors include the number duration and intensity of individual confrontations the type of weapons and other military equipment used the number and calibre of munitions fired the number of persons and type of forces partaking in the fighting the number of casualties the extent 131 Martić Trial Judgement paras 135 344 Martić Trial Judgement para 344 133 Martić Trial Judgement para 345 134 Martić Trial Judgement para 347 135 Mrkšić et al Trial Judgement paras 1 39-40 407-408 136 Mrkšić et al Trial Judgement para 419 137 Mrkšić et al Trial Judgement para 419 138 Mrkšić et al Trial Judgement para 419 139 Mrkšić et al Trial Judgement paras 420-421 140 Mrkšić et al Trial Judgement para 422 132 Case No IT-04-84-T 27 3 April 2008 of material destruction and the number of civilians fleeing combat zones The involvement of the UN Security Council may also be a reflection of the intensity of a conflict 50 The Trial Chamber now turns to examine how the criterion of the organization of the parties has been interpreted in practice 51 In Tadić the Trial Chamber had to assess whether the Government of Bosnia- Herzegovina and the Bosnian-Serb forces had the requisite level of organization 141 It found that the Republic of Bosnia-Herzegovina was an organized political entity with institutions dedicated to defence and that it became a de jure state on 22 May 1992 142 The Bosnian Serbs disposed of an “organized military force” the Bosnian-Serb army comprising forces formerly part of the JNA which was under the command of the Bosnian-Serb administration in Pale 143 They occupied a significant part of BosniaHerzegovina 144 Having considered also the factors relevant to intensity the Trial Chamber concluded that an armed conflict existed 145 52 In the Čelebići case the Trial Chamber had to determine whether the JNA the Bosnian TO the Bosnian MUP the Croatian Defence Council and the Bosnian-Serb army satisfied the “organization” criterion of the Tadić test 146 The Trial Chamber pointed out that the JNA was the official army of the SFRY later the VJ under the FRY and was controlled from Belgrade 147 The Bosnian-Serb army composed of units formerly part of the JNA was controlled by the leadership of the Bosnian-Serb administration and occupied significant areas of Bosnia-Herzegovina 148 Similarly the self-proclaimed Bosnian-Croat state established as its army the Croatian Defence Council which operated from territory under its control 149 The Croatian Defence Council received arms training and some personnel from the army of Croatia 150 As for the Bosnian TO and MUP the Trial Chamber noted that they were gradually transformed into a Bosnian Army which was formally established on 15 April 1992 under the supreme command of the President of the Bosnian State Presidency and the 141 Tadić Trial Judgement paras 562-563 Tadić Trial Judgement para 563 143 Tadić Trial Judgement para 564 144 Tadić Trial Judgement paras 564 566 145 Tadić Trial Judgement para 568 146 Čelebići Trial Judgement paras 182-187 147 Čelebići Trial Judgement paras 110 112 187 148 Čelebići Trial Judgement paras 117 187 149 Čelebići Trial Judgement paras 118 187 142 Case No IT-04-84-T 28 3 April 2008 General Staff based in Sarajevo 151 In Konjic the Municipal Assembly formed a “War Presidency” responsible for organizing the local defence 152 Moreover the local TO and Croatian Defence Council created a Joint Command 153 The Trial Chamber concluded that the parties to the conflict were “governmental authorities” or “organized armed groups” within the meaning of the Tadić test 154 53 The Slobodan Milošević Trial Chamber examined whether the KLA from on or about 1 January 1999 qualified as an “organized armed group” 155 It found that the KLA constituted an organized military force having an official joint command structure headquarters designated zones of operation and the ability to procure transport and distribute arms 156 On that basis the Trial Chamber concluded that the “organization” criterion of the Tadić test was satisfied for the purposes of Rule 98 bis 157 54 In the Halilović case the Trial Chamber examined facts relevant to establishing whether the Croatian Defence Council the Bosnian-Serb army and the Bosnian Army satisfied the “organization” criterion The parties possessed military structures 158 They engaged in military tactics in order to achieve military objectives 159 They also controlled various parts of the territory 160 The Bosnian-Serb army and the Croatian Defence Council negotiated a cease-fire agreement 161 The Trial Chamber also took into account that the Command of the Army of the Republic of Bosnia-Herzegovina issued orders restructured the army and deployed officers and troops 162 Taking into consideration also factors relevant to the intensity of the armed violence the Trial Chamber concluded that there was an armed conflict during the indictment period in Bosnia-Herzegovina 163 55 In the Limaj et al case the Trial Chamber found that the Serbian forces involved in Kosovo Kosova in 1998 constituted “governmental authorities” within the meaning 150 Čelebići Trial Judgement para 118 Čelebići Trial Judgement paras 109 136 186-187 152 Čelebići Trial Judgement paras 125-126 131 188 153 Čelebići Trial Judgement paras 135 137 140 191 154 Čelebići Trial Judgement paras 191-192 155 Slobodan Milošević Rule 98 bis Decision paras 14 22 f 156 Slobodan Milošević Rule 98 bis Decision paras 23-24 157 Slobodan Milošević Rule 98 bis Decision paras 17 25 40 158 Halilović Trial Judgement paras 162 165-166 168-172 159 Halilović Trial Judgement paras 161 163 166 168-169 172 160 Halilović Trial Judgement paras 162-164 169 161 Halilović Trial Judgement para 164 162 Halilović Trial Judgement paras 170-172 163 Halilović Trial Judgement para 173 151 Case No IT-04-84-T 29 3 April 2008 of the Tadić test and then examined whether the KLA qualified as an organized armed group 164 Summing up the findings that it deemed most relevant to this question the Trial Chamber concluded that by the end of May 1998 T he 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 Unit commanders gave combat orders and subordinate units and soldiers generally acted in accordance with these orders Steps were taken to introduce disciplinary rules and military police as well as to recruit train and equip new members Although generally inferior to the VJ and MUP’s equipment the KLA soldiers had weapons which included artillery mortars and rocket launchers By July 1998 the KLA had gained acceptance as a necessary and valid participant in negotiations with international governments and bodies to determine a solution for the Kosovo … crisis and to lay down conditions in these negotiations for refraining from military action 165 56 The Trial Chamber also interpreted the KLA’s ability to engage in armed clashes across Kosovo Kosova as a further indicator of its level of organization 166 It interpreted the existence of KLA disciplinary rules and military police as evidence of the growing formality and effectiveness of its organizational structure and of the progress towards ensuring discipline and coordination within the KLA even though it was unclear on the evidence to what extent enforcement was actually taking place 167 The Trial Chamber noted that the General Staff did not meet regularly or have any fixed location 168 and that the KLA had mostly light weapons and inadequate communications equipment 169 The Trial Chamber downplayed the significance of uniforms as they had “little bearing on the functioning of the KLA” 170 It viewed the fact that the KLA became a key negotiating partner giving it the recognized ability to speak with one authoritative voice on behalf of its members as confirmation of its “organisational stability and effectiveness” 171 The Trial Chamber also found evidence of the existence of an established hierarchy within the KLA 172 It found that the KLA had the ability to coordinate military planning and activities and to determine a unified military strategy 164 Limaj et al Trial Judgement paras 83 93 Limaj et al Trial Judgement para 171 omitting footnotes referring to its previous detailed findings on the matter 166 Limaj et al Trial Judgement para 172 167 Limaj et al Trial Judgement paras 98 110-117 168 Limaj et al Trial Judgement paras 104 132 169 Limaj et al Trial Judgement paras 121-122 124 170 Limaj et al Trial Judgement para 123 171 Limaj et al Trial Judgement para 129 165 Case No IT-04-84-T 30 3 April 2008 as well as the ability to conduct military operations of a larger scale 173 The Trial Chamber concluded that 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” 174 57 In the Hadžihasanović and Kubura case the Trial Chamber had to determine whether there was sufficient evidence that the Croatian Defence Council and the Bosnian Army satisfied the “organization” criterion 175 The Trial Chamber relied on cease-fire orders issued by the general staffs and political leaders of each party as well as cease-fire agreements between the two parties which representatives of international organizations attempted to broker and enforce 176 It found further indication of the existence of an armed conflict in the “repeated failed attempts to form a joint command” between the two parties 177 Based also on considerations relevant to intensity the Trial Chamber was satisfied that the conditions for the existence of an armed conflict were fulfilled 178 58 In the Martić case the Trial Chamber had to determine whether the opposing Serb and Croat forces qualified as organized for the purposes of the Tadić test 179 It noted that in August 1991 the JNA and the armed forces of the Croatian-Serb leadership consisting of the Serb TO and a unit within the Serb MUP were directly involved in the hostilities and cooperating in organizing operations on the ground 180 The Croatian-Serb leadership received military assistance from Serbia and participated in establishing a camp to train units that later took part in the hostilities 181 The Croatian authorities also organized the Croatian Army 182 The Trial Chamber furthermore took into account the adoption of agreements between the parties 183 The Trial Chamber concluded that the “organization” criterion was fulfilled 184 172 Limaj et al Trial Judgement para 129 Limaj et al Trial Judgement para 129 174 Limaj et al Trial Judgement paras 134 173 175 Hadžihasanović and Kubura Trial Judgement paras 14 20 176 Hadžihasanović and Kubura Trial Judgement paras 20 23 177 Hadžihasanović and Kubura Trial Judgement para 23 178 Hadžihasanović and Kubura Trial Judgement paras 20 25 179 Martić Trial Judgement paras 41 343 Martić Prosecution’s Final Brief 17 January 2007 para 356 180 Martić Trial Judgement paras 135 344 181 Martić Trial Judgement para 344 182 Martić Trial Judgement para 344 183 Martić Trial Judgement para 345 184 Martić Trial Judgement para 347 173 Case No IT-04-84-T 31 3 April 2008 59 In the Mrkšić et al case the Trial Chamber had to determine whether the opposing Serbian and Croatian forces satisfied the “organization” requirement of the Tadić test 185 The Serb forces consisted of the JNA Serb TOs and Serb volunteer or paramilitary units 186 They all acted under a temporary military structure formed by the command of the 1st Military District of the JNA 187 The Trial Chamber found that the Serbian forces constituted government authorities within the meaning of the Tadić test 188 The Croatian forces consisted of the Croatian MUP National Guard Corps and local volunteer defence groups 189 The Croatian MUP had regular as well as reserve police forces numbering 20 000 across Croatia 190 The National Guard Corps was formed on 28 May 1991 and was part of the MUP 191 At first its members were in large part volunteers and members of the reserve forces of the MUP 192 They were armed though inadequately with MUP weapons 193 Before November 1991 the National Guard Corps in Croatia consisted of four brigades with 8 000-9 000 men 194 In Vukovar in the autumn of 1991 the Croatian MUP and National Guard Corps along with local volunteer defence groups numbered around 1 500-1 800 195 They were under a unified command which had a designated headquarters in Vukovar 196 The Trial Chamber concluded that the Croatian forces constituted organized armed groups within the meaning of the Tadić test 197 60 These cases highlight the principle that an armed conflict can exist only between parties that are sufficiently organized to confront each other with military means State governmental authorities have been presumed to dispose of armed forces that satisfy this criterion As for armed groups Trial Chambers have relied on several indicative factors none of which are in themselves essential to establish whether the “organization” criterion is fulfilled Such indicative factors include the existence of a command structure and disciplinary rules and mechanisms within the group the 185 Mrkšić et al Trial Judgement paras 39-40 407-408 Mrkšić et al Trial Judgement para 409 187 Mrkšić et al Trial Judgement para 409 188 Mrkšić et al Trial Judgement para 409 189 Mrkšić et al Trial Judgement para 410 190 Mrkšić et al Trial Judgement para 411 191 Mrkšić et al Trial Judgement para 413 192 Mrkšić et al Trial Judgement paras 413-414 193 Mrkšić et al Trial Judgement paras 413-414 194 Mrkšić et al Trial Judgement para 414 195 Mrkšić et al Trial Judgement paras 410 412 414 415 196 Mrkšić et al Trial Judgement paras 410 417 197 Mrkšić et al Trial Judgement para 418 186 Case No IT-04-84-T 32 3 April 2008 existence of a headquarters the fact that the group controls a certain territory the ability of the group to gain access to weapons other military equipment recruits and military training its ability to plan coordinate and carry out military operations including troop movements and logistics its ability to define a unified military strategy and use military tactics and its ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords 61 Nexus The alleged crime need not have occurred at a time and place in which there was actual combat so long as the acts of the perpetrator were “closely related” to hostilities occurring in territories controlled by parties to the conflict 198 The existence of this close relationship between the crime and the armed conflict will be established where it can be shown that the conflict played a substantial part in the perpetrator’s ability to commit the crime his or her decision to commit it the manner in which it was committed or the purpose for which it was committed 199 62 Status of Victims The final requirement for the application of an Article 3 charge based on Common Article 3 is that the victim was taking no active part in the hostilities at the time the offence was committed 200 This covers among other persons members of armed forces who have laid down their arms and those placed hors de combat by sickness wounds detention or any other cause 201 The perpetrator must know or should have known the status of the victims as persons taking no active part in the hostilities 202 3 2 Findings on the existence of an armed conflict 3 2 1 Organization of the KLA 63 The evidence before the Trial Chamber shows the existence of a conflict between the armed forces of the Government of FRY consisting of VJ PJP JSO SAJ and MUP forces “Serbian forces” and the KLA in Kosovo Kosova in the indictment period March-September 1998 Although most of the evidence before the Trial Chamber concerns events that occurred in an area approximately between the towns of Peć Pejë Đakovica Gjakovë and Grabanica Grabanicë in Klina Klinë municipality 198 Kunarac et al Appeal Judgement para 57 Stakić Appeal Judgement para 342 Kunarac et al Appeal Judgement para 58 200 Common Article 3 1 Čelebići Appeal Judgement para 420 Krajišnik Trial Judgement para 847 201 Common Article 3 1 202 Halilović Trial Judgement para 36 Krajišnik Trial Judgement para 847 199 Case No IT-04-84-T 33 3 April 2008 “Dukagjin area” the Trial Chamber does not limit its legal analysis to this area of Kosovo Kosova In order to determine if and when an armed conflict came into existence in Kosovo Kosova the Trial Chamber must examine if the KLA constituted an “organized armed group” and if the conflict reached the level of intensity required under the Tadić test 64 In light of the specific features of the present case the Trial Chamber has identified and will examine the following indicative factors of the level of organization of the KLA the existence of KLA headquarters and command structure the existence of KLA disciplinary rules and mechanisms territorial control exerted by the KLA the ability of the KLA to gain access to weapons and other military equipment to recruit members to provide them with military training to carry out military operations and use tactics and strategy and to speak with one voice 65 Headquarters and command structure The first KLA headquarters in the Dukagjin area were established in Jablanica Jabllanicë in Đakovica Gjakovë municipality and Glođane Gllogjan in Dečani Deçan municipality Cufë Krasniqi testified that in February 1998 the KLA had headquarters in Jablanica Jabllanicë and Glođane Gllogjan 203 Jablanica Jabllanicë which the witness understood to be under the command of Lahi Brahimaj was the oldest KLA headquarters in Western Kosovo Kosova 204 After the attack on the Haradinaj family compound in Glođane Gllogjan in March 1998 this village became the base for the most important KLA headquarters after Jablanica Jabllanicë 205 KLA members went to Glođane Gllogjan to learn how to protect their villages and obtain weapons 206 Zoran Stijović and Witness 69 corroborated the KLA’s presence by early 1998 in Glođane Gllogjan and Jablanica Jabllanicë as well as Lahi Brahimaj’s role as a leader in Jablanica Jabllanicë 207 Pjeter Shala testified that in early spring 1998 he and twenty or thirty other armed men entered Kosovo Kosova from Albania and went to Jablanica Jabllanicë 208 The witness testified that KLA commanders would meet in Lahi 203 P351 Cufë Krasniqi witness statement 14 June 2007 paras 33 35 Cufë Krasniqi T 5756-5757 P351 Cufë Krasniqi witness statement 14 June 2007 paras 33 35 62 Cufë Krasniqi T 5732 5753-5754 5846 5855 P357 Photograph of building containing the KLA staff in Jablanica Jabllanicë in 1998 205 P351 Cufë Krasniqi witness statement 14 June 2007 paras 38 40 42 Cufë Krasniqi T 5706 206 Cufë Krasniqi T 5708 207 P931 Zoran Stijović witness statement 27 September 2007 paras 23 49 Zoran Stijović T 90009001 P1231 Witness 69 witness statement 20 June 2007 paras 11 27 Witness 69 T 9846 98509853 208 Pjeter Shala T 9938–9939 9943–9947 204 Case No IT-04-84-T 34 3 April 2008 Brahimaj’s house in the centre of Jablanica Jabllanicë 209 He further testified that there were barracks at the entrance to the village 210 Nazmi Brahimaj was the village commander and gave orders pertaining to who was to collect weapons and who was to go on a particular assignment 211 66 In March and April 1998 villagers in many villages in the Dukagjin area began to organize themselves in support of the KLA Rrustem Tetaj testified that villagers in some of the villages that surrounded Glođane Gllogjan such as Dubrava Dubravë Babaloć Baballoq Gramočelj Gramaqel and Šaptelj Shaptej all in Dečani Deçan municipality had started to set up KLA headquarters around the end of March and the beginning of April 1998 212 Around the same time he saw the KLA headquarters in Ljumbarda Lumbardh in municipality 213 Dečani Deçan The commander of Gramočelj Gramaqel at the time was Ali Avdija a k a Baraba and the commander of Ljumbarda Lumbardh was Deli Lekaj 214 According to Rrustem Tetaj villagers organized themselves on their own initiative which resulted in an expansion of the KLA in the Dukagjin area 215 The organization consisted mainly of ordinary people appointing night guards and setting up checkpoints at village entrances 216 The Trial Chamber received further consistent evidence about KLA organization at the village level in the Dukagjin area since late March 1998 from Ismet Kadrijaj 217 Ahmet Ukaj 218 Zymer Hasanaj 219 Witness 29 220 and Shemsedin Cekaj 221 67 The Trial Chamber also received evidence about the role of Ramush Haradinaj in organizing the KLA as of April 1998 According to Zoran Stijović in late March April and early May Haradinaj and his entourage would come to a village and call a meeting of prominent residents in which they would discuss the establishment of a KLA staff in 209 Pjeter Shala T 9946-9948 Pjeter Shala T 9948-9950 P1185 Diagram of the Jablanica Jabllanicë barracks P1186 Photograph marked by Pjeter Shala 211 Pjeter Shala T 9947 9954 212 P265 Rrustem Tetaj witness statement 17 April 2007 para 20 213 P265 Rrustem Tetaj witness statement 17 April 2007 para 20 214 P265 Rrustem Tetaj witness statement 17 April 2007 para 20 215 Rrustem Tetaj T 3625-3626 3628 3707 3709 3800-3801 216 Rrustem Tetaj T 3626 3707 217 P1233 Ismet Kadrijaj witness statement 28 October 2004 paras 7-9 218 P1226 Ahmet Ukaj witness statement 11 November 2007 para 1 219 P923 Zymer Hasanaj witness statement 1 October 2007 para 2 Zymer Hasanaj T 8720 220 Witness 29 T 3483-3484 3586 221 P317 Shemsedin Cekaj witness statement 14 May 2007 para 6 Shemsedin Cekaj T 4390 43984399 4401-4403 210 Case No IT-04-84-T 35 3 April 2008 the village and influence the selection of leaders and staff 222 Haradinaj would ask the villagers to raise money for the purchase of weapons 223 Around mid-April 1998 Rrustem Tetaj went to Glođane Gllogjan to join the KLA and to discuss the organization and preparation of the village of Donja Luka Lluka ë Ultë in Dečani Deçan municipality 224 He met with Haradinaj who asked the witness to return to his village to organize the people there gather some young people in order to go to Glođane Gllogjan and go from there to Albania to collect weapons 225 Zymer Hasanaj testified that in mid-April 1998 Haradinaj went to Velika Vranovac Vranoc e Madhe in Peć Pejë municipality to announce the appointment of Din Krasniqi to the position of KLA commander of a region consisting of 25 villages including Velika Vranovac Vranoc e Madhe 226 Haradinaj was armed and in KLA uniform 227 Hasanaj stated that “the people” accepted Haradinaj’s authority to make this appointment considering him superior to everyone else in the region 228 Cufë Krasniqi testified that after the clash at the Haradinaj family compound Haradinaj became the “popular commander” of the KLA forces in the Dukagjin area 229 Although in April 1998 Haradinaj was not officially the commander the KLA soldiers regarded him as the de facto commander of the area 230 68 On the evidence the “KLA General Staff” appears to have been hardly involved with the above-mentioned developments on the ground in early 1998 Jakup Krasniqi member of the KLA General Staff since late 1996 or the beginning of 1997 231 confirmed that beginning in March-April 1998 villagers particularly in the Drenica Drenicë and Dukagjin areas would organize themselves into defence units spontaneously often electing a village commander 232 He testified that the KLA 222 Zoran Stijović T 9073-9074 Zoran Stijović T 9074-9076 224 P265 Rrustem Tetaj witness statement 17 April 2007 paras 20 22 Rrustem Tetaj T 3613 37093710 225 Rrustem Tetaj T 3621 3840-3841 226 P923 Zymer Hasanaj witness statement 1 October 2007 paras 4-6 Zymer Hasanaj T 8743 227 P923 Zymer Hasanaj witness statement 1 October 2007 para 5 228 P923 Zymer Hasanaj witness statement 1 October 2007 para 5 229 P351 Cufë Krasniqi witness statement 14 June 2007 para 43 See also P931 Zoran Stijović witness statement 27 September 2007 paras 45-46 230 P351 Cufë Krasniqi witness statement 14 June 2007 paras 41 61 65 231 P328 Jakup Krasniqi witness statement 24 May 2007 para 4 P340 Jakup Krasniqi Limaj et al transcript 10-12 February 2005 pp 3296 3298 3307 3427-3429 Jakup Krasniqi T 4989 5022 5024 5075 5078 232 P328 Jakup Krasniqi witness statement 24 May 2007 para 8 P340 Jakup Krasniqi Limaj et al transcript 10-12 February 2005 pp 3330 3378-3379 3415 3450-3452 3470-3471 Jakup Krasniqi T 5007-5009 5046-5049 223 Case No IT-04-84-T 36 3 April 2008 General Staff wanted these villagers to become part of a more organized structure led by the KLA General Staff 233 At least until June 1998 the KLA General Staff had no main building while some members of the KLA General Staff were in Kosovo Kosova some in Albania and some in western European countries 234 According to Jakup Krasniqi until August 1998 the KLA had no rigid hierarchical structure but a horizontal command structure and communication between KLA groups was limited 235 69 Disciplinary rules and mechanisms Discipline of KLA soldiers does not appear to have been a significant concern for the KLA in the early months of 1998 Jakup Krasniqi testified that from March to September 1998 the KLA had no courts judges or prisons 236 During 1998 the KLA General Staff had no system for disciplining KLA soldiers and disciplining by zone commanders was according to Jakup Krasniqi difficult or impossible due to lack of organization and regular communication 237 On 29 April 1998 the KLA General Staff issued a policy statement according to which the KLA recognized and respected the international treaties of the United Nations and the conventions on war 238 The KLA also circulated documents containing these conventions originating from the International Red Cross 239 Due to organizational problems it was not possible to send the documents to every KLA soldier and the purpose of the policy statement was therefore to inform KLA soldiers 240 70 Control of territory Serbian control of certain parts of the Dukagjin area weakened already before 1998 Zoran Stijović testified that starting in 1996 the MUP stayed out of several areas across Kosovo Kosova including around 241 Nebojša Jablanica Jabllanicë in order to avoid confrontations with the KLA Avramović testified that even before the conflict the police were unable to go to Jablanica Jabllanicë because the villagers were armed and there were attacks on the 233 Jakup Krasniqi T 5007-5008 5047-5048 P340 Jakup Krasniqi Limaj et al transcript 10-12 February 2005 pp 3306 3311 3401-3402 Jakup Krasniqi T 4951 4990 5012 5027-5029 5072 235 P340 Jakup Krasniqi Limaj et al transcript 10-12 February 2005 pp 3350-3351 3454-3455 236 Jakup Krasniqi T 5089 5153 237 Jakup Krasniqi T 4970-4971 238 P328 Jakup Krasniqi witness statement 24 May 2007 Annex 12 KLA political statement 29 April 1998 pp 1 2 P340 Jakup Krasniqi Limaj et al transcript 10-12 February 2005 p 3371 239 P340 Jakup Krasniqi Limaj et al transcript 10-12 February 2005 pp 3387-3388 240 P328 Jakup Krasniqi witness statement 24 May 2007 para 6 P340 Jakup Krasniqi Limaj et al transcript 10-12 February 2005 pp 3387-3388 241 P931 Zoran Stijović witness statement 27 September 2007 para 23 Zoran Stijović T 9000 234 Case No IT-04-84-T 37 3 April 2008 police and other state officials 242 In January 1998 Branko Gajić received information that an area of 90 square kilometres in Đakovica Gjakovë municipality had not been under Serbian control for several years and had fallen under KLA control in late 1997 243 71 The KLA exerted territorial control by setting up manned checkpoints on roads in the Dukagjin area Branko Gajić stated that following the MUP operation on Adem Jashari’s compound on 5 March 1998 the number of KLA checkpoints increased 244 The Trial Chamber received specific evidence on the existence of KLA checkpoints in March 1998 Dragoslav Stojanović testified that one evening around the beginning of March 1998 at the entrance to Glođane Gllogjan four KLA soldiers stopped him asked for his identity papers and searched him and his car 245 John Crosland testified that between March and July 1998 he observed small groups of around 10-15 KLA soldiers most of whom wore uniforms with KLA insignia in the areas of Rznić Irzniq Prilep Prelep and on the outskirts of Đakovica Gjakovë 246 They were armed with rifles revolvers some light machine-guns and some grenades 247 These soldiers would sometimes try to prevent Crosland’s passage 248 72 By late April 1998 there was a considerable number of KLA checkpoints in the Dukagjin area Shemsedin Cekaj testified that around 20 April 1998 he travelled to Rznić Irzniq to meet Ramush Haradinaj for the first time 249 He drove through the villages of Ljubenić Lybeniq Peć Pejë municipality Donji Streoc Strellci i Ultë Požar Pozhare and Kodralija Kodrali all in Dečani Deçan municipality 250 There were checkpoints guarded by KLA soldiers some of whom were uniformed in several villages along the way 251 Shemsedin Cekaj did not need any papers to pass through these checkpoints as he was known to the men guarding them 252 At that time one did not need a permit from local KLA staff to travel through KLA checkpoints 253 242 P380 Nebojša Avramović witness statement 4 June 2007 para 10 P1138 Branko Gajić witness statement 2 October 2007 para 13 P1142 549th Motorised Brigade Command report on the Đakovica Gjakovë municipality in early 1998 23 February 1998 p 1 244 P1138 Branko Gajić witness statement 2 October 2007 para 17 245 Dragoslav Stojanović T 1854-1857 1880 1941-1942 1983 246 John Crosland T 2949 2951-2952 247 John Crosland T 2951-2952 248 John Crosland T 2951 249 Shemsedin Cekaj T 4390 4460-4461 250 Shemsedin Cekaj T 4390-4391 251 Shemsedin Cekaj T 4391 252 Shemsedin Cekaj T 4392 253 Shemsedin Cekaj T 4392 243 Case No IT-04-84-T 38 3 April 2008 Shemsedin Cekaj testified that after 22 April 1998 the KLA set up check-points on the western side of Rznić Irzniq towards Prilep Prelep 254 Shaban Balaj testified that there was a KLA checkpoint in Rasić Rasiq in Peć Pejë municipality at the end of April 1998 255 Nebojša Avramović testified that by 21-22 April 1998 the KLA had checkpoints bunkers and trenches on both sides of the Đakovica Gjakovë-Peć Pejë road 256 The existence of KLA trenches in Dečani Deçan municipality by 22-24 April was corroborated by Miloica Vlahović 257 and Staniša Radošević 258 In sections 6 4 and 6 7 below the Trial Chamber examines further evidence of KLA checkpoints in Dečani Deçan municipality around Dašinovac Dashinoc Glođane Gllogjan Požar Pozhare and Rznić Irzniq by 22 April 1998 73 As a result between April 1998 and late August 1998 the Dukagjin area was as explained by Cufë Krasniqi mainly under the control of the KLA 259 The area was according to the witness considered a “free zone” because it was freed from Serbian “occupation” and because the KLA could move within that area 260 However due to their military superiority the Serbian forces were still able to enter the area and did so repeatedly 261 The KLA’s control of the Dukagjin area since around April 1998 though offset by Serbian incursions found further support in the evidence of Ylber Haskaj 262 Shemsedin Cekaj 263 Zymer Hasanaj 264 Žarko Bajčetić 265 and Witness 28 266 The evidence examined in sections 6 5 6 6 and 6 7 below shows that the KLA took control of Gornji Ratiš Ratishë ë Eperm and Dašinovac Dashinoc both in Dečani Deçan municipality on 21-22 April 1998 254 Shemsedin Cekaj T 4404 P1156 Intelligence report from the Priština Corps Command forward command post 22 April 1998 para 8 255 P922 Shaban Balaj witness statement 2 June 2007 para 16 Shaban Balaj T 8648 256 P380 Nebojša Avramović witness statement 4 June 2007 paras 13 15 see also P385 Map of unsafe area for Serbs according to Nebojša Avramović 257 Miloica Vlahović T 1583-1584 258 See section 6 15 below 259 P351 Cufë Krasniqi witness statement 14 June 2007 para 90 Cufë Krasniqi T 5815 P355 Map on which the witness marked Serbian positions and an area controlled by the KLA 260 P351 Cufë Krasniqi witness statement 14 June 2007 para 90 Cufë Krasniqi T 5751 261 Cufë Krasniqi T 5751 5815 5820 262 P1213 Ylber Haskaj witness statement 5 November 2007 para 34 Ylber Haskaj T 10330-10332 263 Shemsedin Cekaj T 4403-4406 4419-4422 4427-4428 4478-4481 P318 Map marked by Shemsedin Cekaj 264 P923 Zymer Hasanaj witness statement 1 October 2007 para 10 and Annex A to the statement showing the villages which according to Hasanaj were part of the “free zone” 265 P377 Žarko Bajčetić witness statement 24 May 2007 paras 19 31-32 Žarko Bajčetić T 64056406 6408-6412 6533-6534 P379 Map on which Žarko Bajčetić marked an inaccessible area 266 P1211 Witness 28 witness statement 28 October 2007 paras 51 72 Witness 28 T 10178-10179 Case No IT-04-84-T 39 3 April 2008 74 As KLA control of the Dukagjin area expanded permanent Serbian positions were withdrawn Nebojša Avramović testified that the police stations in Rznić Irzniq and Junik were closed in April 1998 as the roads leading to these stations were blocked and policemen were constantly attacked 267 Overnight between 21 and 22 April 1998 the police station in Rznić Irzniq was evacuated 268 Zoran Stijović testified that when the police withdrew from the police station in Rznić Irzniq which was the last Serbian outpost in the vicinity of Glođane Gllogjan control of the territory off the main road was in effect ceded to the KLA 269 75 The evidence indicates that in early 1998 the main roads were predominantly under Serbian control which by April was increasingly challenged by the KLA Dragan Živanović testified that the MUP following increased KLA activity had set up permanently manned checkpoints along the main roads in Western Kosovo Kosova in the first half of 1998 270 KLA attacks on these checkpoints increased during the months up to June 1998 271 Nebojša Avramović testified that a section of the Đakovica Gjakovë-Priština Prishtinë road between Rakovina Rakovine in Đakovica Gjakovë municipality and Dolac Dollc in Klina Klinë municipality was completely blocked by the KLA between April and September 1998 272 John Crosland and Cufë Krasniqi testified that since February or March 1998 Serbs controlled the Peć Pejë-Đakovica Gjakovë main road although the KLA blocked it near Prilep Prelep for some time around April 1998 273 On 22 April 1998 Colonel Vladimir Lazarević ordered that movement of military vehicles on the Đakovica Gjakovë-Dečani DeçanPeć Pejë road required prior authorisation and maximum security measures 274 Witness 28 testified that by the end of April 1998 bus services along the Priština PrishtinëPeć Pejë-Đakovica Gjakovë road were not operating due to clashes between KLA and 267 P380 Nebojša Avramović witness statement 4 June 2007 para 18 P1156 Intelligence report from the Priština Corps Command forward command post 22 April 1998 para 8 See also P351 Cufë Krasniqi witness statement 14 June 2007 para 48 Cufë Krasniqi T 5814 P1213 Ylber Haskaj witness statement 5 November 2007 para 34 Shemsedin Cekaj T 4403 4470 269 P931 Zoran Stijović witness statement 27 September 2007 paras 41-43 Zoran Stijović T 8992 270 P1017 Dragan Živanović witness statement 9 August 2007 paras 30-31 271 P1017 Dragan Živanović witness statement 9 August 2007 para 31 272 P380 Nebojša Avramović witness statement 4 June 2007 para 17 P386 Map indicating the safe section of the Đakovica Gjakovë-Priština Prishtinë road drawn by Nebojša Avramović 273 P351 Cufë Krasniqi witness statement 14 June 2007 paras 47-48 Cufë Krasniqi T 5746 5813 John Crosland T 2961-2962 274 P1017 Dragan Živanović witness statement 9 August 2007 para 61 P1022 Order by Col Vladimir Lazarević 22 April 1998 268 Case No IT-04-84-T 40 3 April 2008 Serbian military forces 275 Serbian police officers told the witness that the KLA had been attacking the Serbian police along the road and were trying to take control of it 276 The witness noticed an increase in checkpoints and a more tangible police presence along the road 277 76 Weapons and other military equipment The KLA was as explained by Jakup Krasniqi financially supported by two funds 278 The Bukoshi Fund set up at the end of 1991 or the beginning of 1992 donated around 4 million DEM to the KLA during 1998 and 1999 279 The Homeland Calling Fund set up in 1995 was controlled by the KLA General Staff 280 It was used to finance the transport of weapons and supplies from Albania into Kosovo Kosova 281 Contributions came from the Albanian diaspora and were encouraged by KLA communiqués 282 Witness 17 corroborated this evidence 283 Cufë Krasniqi and Dragan Živanović testified that the KLA got money to buy weapons from donations of the Albanian diaspora and funds collected in the villages 284 77 While two witnesses testified that large-scale KLA smuggling of weapons began in early 1997 the Trial Chamber received concrete evidence substantiating this claim only as of March 1998 Zoran Stijović testified that in early 1997 the Albanian Government collapsed and Albanian army barracks were looted 285 According to the witness in early spring 1997 the KLA began to smuggle large quantities of weapons and other military equipment from Albania into Kosovo Kosova 286 Dragan Živanović corroborated this evidence 287 Bislim Zyrapi testified that he was in Albania between the second half of March and 28 May 1998 288 He was frequently visited by members of 275 P1211 Witness 28 witness statement 28 October 2007 para 55 Witness 28 T 10197 P1211 Witness 28 witness statement 28 October 2007 paras 57-58 277 P1211 Witness 28 witness statement 28 October 2007 para 63 Witness 28 T 10197 278 P328 Jakup Krasniqi witness statement 24 May 2007 para 5 279 P328 Jakup Krasniqi witness statement 24 May 2007 para 5 280 P328 Jakup Krasniqi witness statement 24 May 2007 para 5 Annex 17 Jakup Krasniqi interview in Koha Ditore 11 July 1998 p 6 Annex 18 Jakup Krasniqi interview in Koha Ditore 12 July 1998 p 2 281 P328 Jakup Krasniqi witness statement 24 May 2007 para 5 282 P328 Jakup Krasniqi witness statement 24 May 2007 para 5 Annex 12 KLA political statement 29 April 1998 p 3 see also Annex 14 KLA policy statement in Bujku 12 June 1998 Annex 16 KLA communiqué in Koha Ditore 13 July 1998 283 P885 Witness 17 witness statement 14 August 2007 paras 2 5-6 284 P351 Cufë Krasniqi witness statement 14 June 2007 para 45 Cufë Krasniqi T 5712 5798 Dragan Živanović T 9294 285 P931 Zoran Stijović witness statement 27 September 2007 para 24 Zoran Stijović T 9009-9010 286 P931 Zoran Stijović witness statement 27 September 2007 para 24 Zoran Stijović T 9010-9011 287 Dragan Živanović T 9294 288 P118 Bislim Zyrapi witness statement 25 November 2005 para 17 Bislim Zyrapi T 3186 31883190 3257 3396 276 Case No IT-04-84-T 41 3 April 2008 the KLA’s General Staff for advice on weapons procurement and weapons supply to Kosovo Kosova 289 The witness visited private premises to inspect weapons for purchase viewing between 50 and 100 weapons at a time many of them decades old and some no longer functional 290 Weapons acquired in this way were transported by the KLA into Kosovo Kosova 291 78 In the beginning of 1998 the number of illegal border crossings increased around the border between Kosovo Kosova Montenegro and Albania 292 According to Branko Gajić following the MUP operation on Adem Jashari’s compound on 5 March 1998 the KLA intensified its weapons smuggling operations from Albania Montenegro and Macedonia 293 John Crosland testified that by 24 March 1998 the KLA would get supplies across the border from Albania and later also from across the Macedonian border 294 According to Cufë Krasniqi around March 1998 people would bring weapons from Albania Serbia and Montenegro 295 After March 1998 village commanders sent young men to Ramush Haradinaj who would send them on to contacts in Albania in order to pick up weapons 296 These unarmed young men were usually escorted by two or three armed KLA soldiers and brought the weapons through the mountains back to their villages 297 Dragan Živanović testified that by April 1998 groups of up to 200 persons smuggled arms across the border into Kosovo Kosova for the KLA 298 Guides who knew the state border security system well led columns of pedestrians or mules across the border 299 79 The Trial Chamber received specific evidence of smuggling expeditions from Albania in March and April 1998 In the beginning of March Avdullah Avdija went to Tropojë in Albania with three friends to get weapons 300 The witness stated that he was not a member of the KLA at that point but a volunteer 301 The distribution and issuing 289 Bislim Zyrapi T 3188-3191 3197 3259 3263 Bislim Zyrapi T 3197 3267-3271 3427-3428 291 Bislim Zyrapi T 3198 3415-3416 292 Dragan Živanović T 9293 293 P1138 Branko Gajić witness statement 2 October 2007 para 17 294 P69 John Crosland Limaj et al transcript 13 January 2007 p 1960 295 P351 Cufë Krasniqi witness statement 14 June 2007 para 45 Cufë Krasniqi T 5711-5712 296 P351 Cufë Krasniqi witness statement 14 June 2007 para 45 Cufë Krasniqi T 5709 297 P351 Cufë Krasniqi witness statement 14 June 2007 para 45 Cufë Krasniqi T 5848-5849 298 Dragan Živanović T 9293 299 Dragan Živanović T 9294 9296-9297 300 P1223 Avdullah Avdija witness statement 11 November 2007 para 1 Avdullah Avdija T 1057210573 301 Avdullah Avdija T 10579-10580 290 Case No IT-04-84-T 42 3 April 2008 of weapons in Albania was supervised by people whom Avdija did not know 302 He returned several nights later with around 420 others transporting Kalashnikovs and other weapons loaded onto horses 303 Some of them were wearing uniforms 304 Ismet Kadrijaj testified that after the Serbian attack on the Haradinaj family compound in March 1998 he travelled to Albania with fellow villagers to purchase weapons 305 Ylber Haskaj went to Albania together with a great number of other villagers in Rznić Irzniq to purchase weapons in mid-April 1998 306 They travelled on foot and he brought back a weapon ammunition and a uniform for himself 307 At the end of April 1998 Shaban Balaj travelled with a group of some 500 people from various villages to Tropojë to obtain weapons and supplies 308 On their return to Kosovo Kosova transporting the purchased weapons 15 millimetre machine guns on tripods long range mortars submachine guns and rifles the group was escorted by approximately five KLA soldiers 309 The witness was aware of numerous large convoys travelling from Kosovo Kosova to Albania in this period 310 80 The weapons were transported through established routes According to Zoran Stijović these passed through Jablanica Jabllanicë and Glođane Gllogjan 311 Branko Gajić confirmed that by March 1998 there were illegal channels along which large quantities of weapons were being imported from Albania 312 John Crosland testified that weapons would be smuggled into Kosovo Kosova along routes across the FRY Albania border and that many would go through the Dukagjin area to the Drenica Drenicë area or Kosovska Mitrovica Mitrovicë 313 By 24 April 1998 the KLA tried to create a corridor from Albania through the west of Kosovo Kosova the Jablanica Jabllanicë area and onto the Drenica Drenicë area along which some of the major KLA 302 P1223 Avdullah Avdija witness statement 11 November 2007 para 1 Avdullah Avdija T 10574 P1223 Avdullah Avdija witness statement 11 November 2007 para 1 Avdullah Avdija T 1057210573 304 Avdullah Avdija T 10573 10580 305 P1233 Ismet Kadrijaj witness statement 28 October 2004 paras 7-8 306 P1213 Ylber Haskaj witness statement 5 November 2007 para 6 307 P1213 Ylber Haskaj witness statement 5 November 2007 para 6 308 P922 Shaban Balaj witness statement 2 June 2007 paras 5-6 Shaban Balaj T 8648 309 P922 Shaban Balaj witness statement 2 June 2007 paras 6-7 310 P922 Shaban Balaj witness statement 2 June 2007 paras 8-9 311 P931 Zoran Stijović witness statement 27 September 2007 para 25 Zoran Stijović T 9004 90119015 9028 312 P1138 Branko Gajić witness statement 2 October 2007 para 19 P1150 Command report by the 549th Motorised Brigade 5 March 1998 pp 2-3 313 John Crosland T 2953 2955-2959 P71 Map marked by John Crosland indicating trails across the FRY Albania border 303 Case No IT-04-84-T 43 3 April 2008 headquarters were situated 314 Branko Gajić corroborated this testimony 315 Dragan Živanović testified that the weapons would go to village staffs in Kosovo Kosova which would distribute them to KLA volunteers 316 81 The weapons obtained by the KLA in the early months of 1998 were light compared to those of the Serbian forces In the first half of 1998 the VJ primarily intercepted Chinese-made weapons which had belonged to the Albanian Army 317 The weaponry included semi-automatic and automatic rifles machine guns hand-held launchers mortars anti-personnel mines recoilless guns and ammunition 318 Branko Gajić testified that in that same period the VJ discovered some 25 000 weapons of differing calibre and type 500 000 bullets and shells of different calibre 10 000 handgrenades larger quantities of hand-held launchers and mortars and several tonnes of military equipment which had apparently been abandoned by KLA members attempting to cross the Albanian border into Kosovo Kosova 319 Further and largely consistent evidence on KLA smuggling of weapons from Albania was received from Žarko Bajčetić 320 and Witness 69 321 82 The transportation of weapons across the border prompted Serbian counter- measures in March and April 1998 Branko Gajić testified that in March 1998 Colonel Delić made requests for the approval of operations designed to inhibit the smuggling of weapons by the KLA and secure the border 322 According to Dragan Živanović starting around April 1998 the VJ reinforced the border posts in response to the increased number of border crossings 323 Branko Gajić testified that in an attempt to prevent the 314 P69 John Crosland Limaj et al transcript 13 January 2007 p 1897 P829 Situation report 24 April 1998 para 5 315 P1138 Branko Gajić witness statement 2 October 2007 para 33 P1142 549th Motorised Brigade Command report on the Đakovica Gjakovë municipality in early 1998 23 February 1998 p 3 P1166 Regular Combat report from Priština Corps Command 13 May 1998 pp 2-3 316 Dragan Živanović T 9297 317 Dragan Živanović T 9295 318 Dragan Živanović T 9295-9296 319 P1138 Branko Gajić witness statement 2 October 2007 para 15 Branko Gajić T 9699-9700 see also P1143 549th Motorised Brigade report signed by Ljubiša Lojanica 2 March 1998 320 P377 Žarko Bajčetić witness statement 24 May 2007 paras 23-26 28 Žarko Bajčetić T 6381 6414 321 P1231 Witness 69 witness statement 20 June 2007 paras 20-21 27 Witness 69 T 9846 322 P1138 Branko Gajić witness statement 2 October 2007 para 20 for example P1151 Command report by the 549th Motorised Brigade 17 March 1998 P1152 Command report by the 549th Motorised Brigade 23 March 1998 323 P1017 Dragan Živanović witness statement 9 August 2007 paras 28 65 70 Dragan Živanović T 9299-9302 9328 P1021 Order by Maj Gen Nebojša Pavković 18 March 1998 P1024 Order by Maj Gen Nebojša Pavković 25 April 1998 P1026 Order by Col Dragan Živanović 27 April 1998 P1027 Case No IT-04-84-T 44 3 April 2008 smuggling of weapons the Government of FRY decided on 23 April 1998 to extend the frontier zone with Albania giving the army military responsibilities up to five kilometres from the Albanian border 324 83 Recruits The first public appearance of the KLA was on 28 November 1997 during the funeral of Halit Geci when three people wearing KLA uniforms gave a speech calling on the people of Kosovo Kosova to fight 325 Bislim Zyrapi a JNAtrained officer 326 testified that from late 1997 onwards KLA representatives attended Albanian clubs around Europe to raise funds and recruit personnel for the KLA 327 At one such event in early 1998 Zyrapi was invited by two KLA members who knew about his military background to join the KLA 328 Bislim Zyrapi testified that he moved to Albania in the second half of March 1998 329 From that time until 28 May 1998 when the witness crossed into Kosovo Kosova he shared an apartment in Tirana with other KLA recruits including three other former JNA officers 330 Branko Gajić testified that there was an international network supporting the KLA which was primarily based in Germany Sweden Switzerland and Albania 331 This network provided finances for the KLA recruited new members organized their transportation to and training in Albania before smuggling them across the border to Kosovo Kosova 332 84 The Trial Chamber received differing estimates of the number of KLA recruits in the early months of 1998 Branko Gajić testified that based on discussions with imprisoned KLA members and those who had contact with the KLA in January February and March 1998 in Kosovo Kosova the KLA consisted of up to 3 000 men Order by Col Vladimir Lazarević 27 April 1998 P1029 Order by Col Vladimir Lazarević 1 May 1998 P1030 Order by Col Vladimir Lazarević 2 May 1998 324 P1138 Branko Gajić witness statement 2 October 2007 para 28 Branko Gajić T 9688-9689 P1174 Proclamation extending the border zone 18 May 1998 325 P265 Rrustem Tetaj witness statement 17 April 2007 paras 5-6 P885 Witness 17 witness statement 14 August 2007 para 4 P931 Zoran Stijović witness statement 27 September 2007 para 28 326 P118 Bislim Zyrapi witness statement 25 November 2005 para 2 Bislim Zyrapi T 3187 327 Bislim Zyrapi T 3181-3183 3201 328 Bislim Zyrapi T 3181 3185 3188 3201 329 Bislim Zyrapi T 3186 330 P118 Bislim Zyrapi witness statement 25 November 2005 para 17 Bislim Zyrapi T 3188-3190 3257 3396 331 P1138 Branko Gajić witness statement 2 October 2007 para 16 332 P1138 Branko Gajić witness statement 2 October 2007 para 16 for example P1144 Report from 14th Counter-intelligence Group 6 March 1998 P1145 Report from 14th Counter-intelligence Group 11 March 1998 P1146 Report from 14th Counter-intelligence Group 18 March 1998 P1147 Report from 14th Counter-intelligence Group 8 April 1998 Case No IT-04-84-T 45 3 April 2008 armed and organized into units and a further 6 000 to 8 000 men who had weapons and occasionally participated in operations 333 A VJ report dated 23 February 1998 estimated that at the end of 1997 and beginning of 1998 there were 200 KLA soldiers in Đakovica Gjakovë and in addition a greater number were engaged as farmers by day and KLA soldiers by night 334 Zoran Stijović testified that by 30 March 1998 the RDB estimated that the KLA had between 50 and 150 militarily trained and well-equipped members in the Jablanica Jabllanicë area 335 In addition to this core group of members the KLA was a grassroots organization with supporters in the villages where it was active 336 According to Jakup Krasniqi before March 1998 there were fewer than 1 000 KLA soldiers 337 John Crosland estimated based on his field observations that in the period between March and May 1998 the KLA consisted of a hard core of 400-500 fighters 338 85 The second category of KLA recruits that of villagers volunteering to help the KLA began to expand considerably in March and April 1998 Jakup Krasniqi testified that from April until August 1998 the KLA became a “people’s army” with a vast increase in the number of KLA volunteers 339 The number of volunteers was so large that the KLA General Staff could not arm and discipline them all 340 Corroboration for this surge in KLA recruitment was provided by Branko Gajić Zoran Stijović and Witness 17 who testified that it had already begun as of 5 and 6 March 1998 341 Witness 28 testified that by the end of April 1998 the KLA were mobilizing the villagers 342 The evidence examined above in this section of the judgement establishes that Avdullah Avdija Ylber Haskaj Ismet Kadrijaj Pjeter Shala Rrustem Tetaj and Bislim Zyrapi joined the KLA in March or April 1998 Other witnesses who joined the 333 Branko Gajić T 9684-9685 9746-9749 9807-9808 Branko Gajić T 9750-9753 9807-9810 P1142 549th Motorised Brigade Command report on the Đakovica Gjakovë municipality in early 1998 23 February 1998 p 2 335 Zoran Stijović T 9065-9068 336 Zoran Stijović T 9066 337 P328 Jakup Krasniqi witness statement 24 May 2007 para 8 338 P69 John Crosland Limaj et al transcript 13 January 2007 p 1919 John Crosland T 2963-2964 3016-3017 P115 ECMM special report 9 April 1998 para 3 339 P328 Jakup Krasniqi witness statement 24 May 2007 para 8 P340 Jakup Krasniqi Limaj et al transcript 10-12 February 2005 pp 3330 3378-3379 3415 3450-3452 3470-3471 Jakup Krasniqi T 5007-5009 340 P328 Jakup Krasniqi witness statement 24 May 2007 para 8 Annex 18 Jakup Krasniqi interview in Koha Ditore 12 July 1998 p 3 341 P885 Witness 17 witness statement 14 August 2007 para 7 P931 Zoran Stijović witness statement 27 September 2007 para 38 P1138 Branko Gajić witness statement 2 October 2007 para 17 P970 RDB official note 10 March 1998 342 P1211 Witness 28 witness statement 28 October 2007 para 72 334 Case No IT-04-84-T 46 3 April 2008 KLA during the same period were Zymer Hasanaj 343 Shaban Balaj 344 and Ahmet Ukaj 345 The evidence examined in section 6 4 below indicates the presence of large numbers of KLA soldiers in Dečani Deçan municipality on 22 April 1998 86 Military training As a former police officer Cufë Krasniqi started training KLA soldiers in Vranovac Vranoc Peć Pejë municipality in February 1998 346 Around this time the majority of the young men who possessed weapons had not had any training 347 At first he trained 21 soldiers but the number grew considerably over time 348 Cufë Krasniqi taught them how to use weapons and how to treat prisoners of war persons who surrendered and civilians 349 Ylber Haskaj testified that around midApril 1998 he received some basic training in Rznić Irzniq and then took part in guarding the village 350 Dragan Živanović testified that he received occasional information from VJ MUP and RDB sources indicating that since 28 February 1998 professionals were giving military training to KLA soldiers in several villages in Dečani Deçan municipality 351 Bislim Zyrapi who as previously mentioned was in Albania between the second half of March and 28 May 1998 testified that he was frequently visited by members of the KLA’s General Staff for advice on military training 352 He also secretly took part in the training of approximately 300 KLA recruits in military tactics and the use of weapons 353 Recruits would receive an average of two weeks’ training 354 Expenses were covered by the logistics department of the KLA’s General Staff from funds raised abroad 355 87 Military operations strategy and tactics Early KLA tactics were to ambush Serbian forces as illustrated by the attack on a police convoy in Lausa Llaushe Srbica Skenderaj municipality on 26 November 1997 356 Another ambush was carried 343 P923 Zymer Hasanaj witness statement 1 October 2007 paras 1-2 Zymer Hasanaj T 8720 P922 Shaban Balaj witness statement 2 June 2007 paras 4 17 Shaban Balaj T 8649 8703 345 P1226 Ahmet Ukaj witness statement 11 November 2007 para 1 346 P351 Cufë Krasniqi witness statement 14 June 2007 paras 24 30-31 Cufë Krasniqi T 5715 5795 5851 347 P351 Cufë Krasniqi witness statement 14 June 2007 para 28 348 P351 Cufë Krasniqi witness statement 14 June 2007 para 34 Cufë Krasniqi T 5715 349 P351 Cufë Krasniqi witness statement 14 June 2007 para 34 Cufë Krasniqi T 5715 5721 350 P1213 Ylber Haskaj witness statement 5 November 2007 paras 1 6 351 P1017 Dragan Živanović witness statement 9 August 2007 para 26 Dragan Živanović T 93189319 9321-9323 9414-9415 352 Bislim Zyrapi T 3188-3191 3197 3259 3263 353 Bislim Zyrapi T 3191-3193 3411 3430 354 Bislim Zyrapi T 3194 355 Bislim Zyrapi T 3193 3265 356 P931 Zoran Stijović witness statement 27 September 2007 paras 27 37 Zoran Stijović T 89398940 9015-9016 9054-9055 344 Case No IT-04-84-T 47 3 April 2008 out on 28 February 1998 in Likošane Likoshan Glogovac Gllogovc municipality in which four policemen were killed and two were wounded 357 By January-February 1998 according to Zoran Stijović KLA would attack police checkpoints using hit and run tactics while trying to avoid engaging the Serbian forces in open conflict 358 They would attempt to spread the police forces thinly and divert their attention away from where they would launch an attack 359 John Crosland testified that after the attack on the Jashari family compound in March 1998 they learned not to engage the Serbian forces in an open area such as the Drenica Drenicë countryside as it favoured the better armed and better equipped Serbian forces 360 On 9 April 1998 Crosland reported that KLA soldiers were widely dispersed throughout the province aiming to stretch the police forces into a wide deployment thereby creating a number of soft targets it could attack more easily 361 He also reported that the KLA was in the early stages of a standard insurgency movement mainly using hit and run tactics 362 According to Jakup Krasniqi around this time the KLA was a guerrilla army operating clandestinely and employing hit and run tactics 363 88 Ability to speak with one voice Jakup Krasniqi testified that during 1997 and until 1998 he was involved in issuing political statements on behalf of the KLA 364 Until 11 June 1998 KLA communiqués were issued by KLA units on behalf of the KLA General Staff 365 KLA communiqués aimed to inform the public of KLA activity but were also used as propaganda exaggerating the successes and the organizational level of the KLA while downplaying its failures and losses in order to boost KLA morale raise KLA standing and encourage recruitment 366 The Trial Chamber has 357 P931 Zoran Stijović witness statement 27 September 2007 para 37 Zoran Stijović T 9031 90549057 P1017 Dragan Živanović witness statement 9 August 2007 para 24 Dragan Živanović T 9314-9315 358 P931 Zoran Stijović witness statement 27 September 2007 para 32 Zoran Stijović T 9020-9023 9029-9031 9055 359 Zoran Stijović T 9058-9059 360 P69 John Crosland Limaj et al transcript 13 January 2007 pp 1879 1881 John Crosland T 29312932 361 John Crosland T 3016-3017 P115 ECMM special report 9 April 1998 paras 3-4 362 John Crosland T 3016-3017 P115 ECMM special report 9 April 1998 paras 3-4 363 P328 Jakup Krasniqi witness statement 24 May 2007 para 8 P340 Jakup Krasniqi Limaj et al transcript 10-12 February 2005 pp 3330 3378 3450-3451 Jakup Krasniqi T 4949 5007 364 P340 Jakup Krasniqi Limaj et al transcript 10-12 February 2005 pp 3230 3430 Jakup Krasniqi T 4949 4952 5010-5011 5015-5016 5032-5033 365 P340 Jakup Krasniqi Limaj et al transcript 10-12 February 2005 pp 3314-3315 3317-3318 3320 3430 Jakup Krasniqi T 4948-4949 4965 5032-5034 5122 366 P340 Jakup Krasniqi Limaj et al transcript 10-12 February 2005 pp 3321-3327 3339-3341 3346 3350-3351 3353-3354 3377 3419-3420 Jakup Krasniqi T 4953-4954 4967-4968 4978-4980 50115012 5035 5038 5044 Case No IT-04-84-T 48 3 April 2008 received into evidence KLA communiqués dated between June 1995 and August 1998 367 89 The above evidence shows that in addition to many hundreds if not thousands of full-fledged KLA soldiers in early 1998 the months of March and April saw a surge in the number of KLA volunteers This contributed to the development of a mainly spontaneous and rudimentary military organization at the village level The evidence shows in April the initial phases of a centralized command structure above the various village commands in particular through the efforts of Ramush Haradinaj who was consolidating de facto authority By this time the KLA also controlled by the presence of checkpoints and armed soldiers a considerable amount of territory in the Dukagjin area It had established logistics that provided access to considerable numbers of weapons although they may not have been sufficient to arm all the new recruits Furthermore the evidence establishes that KLA soldiers received at least rudimentary military training and used guerrilla tactics Finally the KLA issued communiqués in its name On the basis of this evidence and in light of the Trial Chamber’s finding in section 3 2 2 below the Trial Chamber is satisfied that by 22 April 1998 the KLA qualified as an “organized armed group” under the Tadić test 3 2 2 Intensity 90 The Trial Chamber will examine the evidence relevant to the intensity of the conflict between the KLA and the Serbian forces in Kosovo Kosova chronologically while considering each of the indicative factors described in paragraph 49 91 The Trial Chamber received some statistical evidence of KLA attacks since the early-to-mid-1990s on which it relies only as early signs of KLA activity Using media reports and VJ and MUP data Zoran Stijović calculated that the number of KLA attacks increased from nine in 1995 to 1 486 in 1998 excluding December 1998 368 By “attacks” Zoran Stijović understood incidents in which firearms hand-grenades and other explosive devices were used against civilians or members of the MUP or the 367 P328 Jakup Krasniqi witness statement 24 May 2007 Annexes 1-10 13 15-18 P937 P938 P940 P943 P944 P945 P947 P948 P951 P952 P953 P954 P958 P963 P964 P966 368 P931 Zoran Stijović witness statement 27 September 2007 paras 20 62 Zoran Stijović T 89338940 8943-8947 9058 Case No IT-04-84-T 49 3 April 2008 VJ 369 Since late 1994 the KLA issued communiqués assuming responsibility for such attacks 370 Branko Gajić testified that the KLA started to attack the VJ along the border with Albania in 1996 371 Gajić defined an “attack” as involving an organized group of at least three people with a particular objective 372 Gajić testified that in 1997 there were 55 KLA attacks against the VJ along the Albanian border and a further 51 in the rest of Kosovo Kosova 373 According to Gajić Serbian counter-intelligence reports suggested that this number increased in 1998 to 196 attacks along the Albanian border and 191 attacks in the rest of Kosovo Kosova 374 92 The Trial Chamber received hearsay evidence about two major clashes between KLA and Serbian forces in late February and early March 1998 on which it relies only to find that these clashes occurred John Crosland testified that on 28 February and 1 or 5 March 1998 Serbian security forces attacked the Ahmeti family compound in Likošane Likoshan and the Jashari family compound in Donji Prekaz Prekazi-iPoshtem Srbica Skenderaj municipality 375 On this occasion 26 people were killed in Likošane Likoshan 376 The attack lasted for about 36 hours and was a reaction to the attack on a MUP station in Rudnik Runik Srbica Skenderaj municipality where three or four Serbian policemen were killed 377 Heavy fighting took place during the attack on the Jashari family compound in which the Serbian security forces numbered 1 500 to 2 000 men and used armoured vehicles and heavy weapons 378 According to Crosland the Serbian forces used extremely heavy force during this event which was primarily a MUP operation 379 The Jashari family compound was severely damaged and there were 54 casualties on the Kosovar Albanian side 380 Crosland saw their bodies two or three days after the clash and observed that there were people of fighting age but also elderly 369 P931 Zoran Stijović witness statement 27 September 2007 paras 20 62 Zoran Stijović T 89348936 370 P931 Zoran Stijović witness statement 27 September 2007 paras 19-20 33 55 Zoran Stijović T 8940 8987-8988 371 P1138 Branko Gajić witness statement 2 October 2007 para 11 372 Branko Gajić T 9683 373 P1138 Branko Gajić witness statement 2 October 2007 para 11 Branko Gajić T 9681-9683 374 P1138 Branko Gajić witness statement 2 October 2007 para 11 Branko Gajić T 9682-9684 375 P69 John Crosland Limaj et al transcript 13 January 2007 pp 1858-1860 John Crosland T 2932 3098 P819 Situation report 2 March 1998 paras 1 3 376 P69 John Crosland Limaj et al transcript 13 January 2007 p 1863 John Crosland T 3098-3099 377 P69 John Crosland Limaj et al transcript 13 January 2007 pp 1861 1863 1866 John Crosland T 2931 378 P69 John Crosland Limaj et al transcript 13 January 2007 pp 1863 1865 John Crosland T 29322933 379 John Crosland T 2932 2934-2935 3100 380 John Crosland T 2932-2933 Case No IT-04-84-T 50 3 April 2008 people women and children that none of them wore uniforms and that many had been shot at close range 381 The Trial Chamber also received consistent hearsay evidence on the clashes at the Ahmeti and Jashari family compounds from Rrustem Tetaj 382 Witness 28 383 Witness 17 384 and Zoran Stijović 385 93 Zoran Stijović and Branko Gajić testified that following the operation on Adem Jashari’s compound on 5 March 1998 the KLA increased its attacks on Serbian forces 386 The specific evidence received by the Trial Chamber does not substantiate this claim It therefore chooses to rely for the period between 6 March and 23 March 1998 on John Crosland’s evidence which describes a situation of relative calm with Serbian forces on high alert On 8 March 1998 the British ambassador Brian Donnelly relying on field observations from John Crosland reported that Prekaz Prekazi had become quiet but that a heavy police presence and police roadblocks remained in parts of the Drenica Drenicë area 387 He further reported that there were no signs of VJ involvement other than the provision of transport vehicles 388 He also reported that large numbers of women and children had fled the area 389 On 9 March 1998 Donnelly reported continuing police operations in the area of Lauša Llaushe 390 On 13 March 1998 the special police remained in position in Prekaz Prekazi and the Drenica Drenicë area remained generally quiet but the VJ was on high alert in the area of Peć Pejë and Đakovica Gjakovë 391 On 17 March 1998 Crosland visited the Drenica Drenicë area and noticed a large PJP presence on the Lauša Llaushe-Klina Klinë road including PJP checkpoints and positions 392 He stated that the presence of around 150 PJP policemen and 50 regular policemen in an area of ten square kilometres indicated that an operation 381 P69 John Crosland Limaj et al transcript 13 January 2007 pp 1863-1864 John Crosland T 29322933 2935-2936 382 Rrustem Tetaj T 3701 383 P1211 Witness 28 witness statement 28 October 2007 paras 17-20 Witness 28 T 10169-10170 10172-10174 10205 10295 see also P6 Spotlight report Numbers 26 and 27 384 P885 Witness 17 witness statement 14 August 2007 para 7 385 P931 Zoran Stijović witness statement 27 September 2007 para 38 Zoran Stijović T 9173-9174 386 P931 Zoran Stijović witness statement 27 September 2007 para 37 Zoran Stijović T 9246 P1138 Branko Gajić witness statement 2 October 2007 para 17 See also P1211 Witness 28 witness statement 28 October 2007 para 56 387 John Crosland T 2928 P73 Situation report 8 March 1998 paras 2-4 388 P73 Situation report 8 March 1998 para 5 389 P73 Situation report 8 March 1998 para 7 390 P69 John Crosland Limaj et al transcript 13 January 2007 pp 1864-1866 P820 Situation report 9 March 1998 para 2 391 P74 Situation report 13 March 1998 para 4 392 P76 Situation report 18 March 1998 para 3 Case No IT-04-84-T 51 3 April 2008 was still ongoing 393 On 23 March 1998 Donnelly referred to Crosland’s report that the special police was still in the Drenica Drenicë area although in lesser numbers but was also installing infrastructure for a longer stay there 394 On 24 March 1998 Donnelly reported that Crosland had informed him that there was still a substantial police presence of 100-200 men with armed personnel carriers and checkpoints in the Drenica Drenicë area as well as VJ special forces on high alert in the areas of Dečani Deçan and Đakovica Gjakovë 395 94 The Trial Chamber received large amounts of evidence on the clash at the Haradinaj family compound on 24 March 1998 It relies in particular on the evidence of Radovan Zlatković who around 11 a m on 24 March 1998 went to Glođane Gllogjan to investigate the death of a police officer Miodrag Otović chief of the Rznić Irzniq MUP in an exchange of gunfire 396 When the witness arrived in the village the fighting between the MUP and KLA supporters was still ongoing 397 Zlatković and his colleagues carried out an on-site investigation on the road where Otović had fallen when he was shot as well as in the yard of Ramush Haradinaj’s house which was close by 398 Within the compound of Haradinaj’s house they found hand-grenades tank mines and a light machine-gun 399 Because the intensity of the fighting in the meantime had increased they took shelter in a house about 150 metres from Haradinaj’s house where they remained until the end of the day 400 From there Zlatković could see the fighting and hear the sound of gunfire and hand-grenade explosions coming from all directions 401 According to the witness hand-grenades and semi-automatic and automatic rifles were being used by both sides 402 He estimated the KLA side to be about 40 men strong 403 The MUP officers were reinforced in the course of the day first police officers from Dečani Deçan went to Glođane Gllogjan to help the police patrol of which Otović had been a member then the Đakovica Gjakovë police arrived 393 P76 Situation report 18 March 1998 para 3 P77 Situation report 23 March 1998 paras 3 8 395 John Crosland T 3000-3001 P78 Situation report 24 March 1998 para 3 396 Radovan Zlatković T 6865 6867 397 P854 Radovan Zlatković witness statement 25 June 2007 para 23 Radovan Zlatković T 6865 398 Radovan Zlatković T 6868 6875 399 P854 Radovan Zlatković witness statement 25 June 2007 para 24 400 Radovan Zlatković T 6868-6869 6900-6902 7007 P818 Aerial photograph of area around Haradinaj compound with witness markings 401 Radovan Zlatković T 6869-6870 6879 402 Radovan Zlatković T 6867-6868 6877 403 P854 Radovan Zlatković witness statement 25 June 2007 para 23 Radovan Zlatković T 6877 6899-6900 394 Case No IT-04-84-T 52 3 April 2008 the MUP anti-terrorist unit arrived last and did not take part in the fighting 404 The exchange of fire continued until about 8 p m when the MUP forces withdrew from Glođane Gllogjan 405 Apart from the killing of Otović Zlatković estimated that four police officers were wounded on the MUP side and that two young men were killed on the KLA side 406 The Trial Chamber also received largely consistent evidence about this confrontation from Ramo Jollaj 407 Rrustem Tetaj 408 Zoran Stijović 409 Branko Gajić 410 Dragoslav Stojanović 411 and Mijat Stojanović 412 The latter two witnesses also testified that after this day they left their home in Dubrava Dubravë for security reasons 413 On 24 March 1998 John Crosland reported exchanges of fire in several villages between Dečani Deçan and Đakovica Gjakovë and in Jošanica Jashanicë in the Drenica Drenicë area 414 In this area Serbian special police had deployed heavy weapons including the PRAGA air defence system and a BOV-3 armed personnel carrier with a triple-barrelled gun 415 95 The Trial Chamber has received little specific evidence of clashes between the KLA and Serbian forces between 25 March and 21 April 1998 On 1 April 1998 Donnelly reported that according to Crosland the situation throughout Kosovo Kosova remained calm and that the number of special police had not changed although they appeared to be at a lower alert level 416 On 9 April 1998 Donnelly reported minor incidents in the Drenica Drenicë and Dečani Deçan areas including an attack on a police checkpoint by unknown persons 417 On 13 April 1998 a police station in a Priština Prishtinë suburb was attacked and damaged by unknown persons and one 404 Radovan Zlatković T 6866 Radovan Zlatković T 6865-6866 406 P854 Radovan Zlatković witness statement 25 June 2007 paras 26-27 Radovan Zlatković T 6867 407 Ramo Jollaj T 8193-8194 8197-8204 8207 8215-8218 8222-8225 8227-8229 408 P265 Rrustem Tetaj witness statement 17 April 2007 paras 8-10 13 Rrustem Tetaj T 3702-3704 3797 409 P931 Zoran Stijović witness statement 27 September 2007 para 41 Zoran Stijović T 8992 92539254 410 P1138 Branko Gajić witness statement 2 October 2007 para 21 P1153 549th Motorised Brigade report signed by Bozidar Delić 30 March 1998 pp 1-2 411 Dragoslav Stojanović T 1858-1860 1968-1973 1977 412 Mijat Stojanović T 2005-2010 2103-2104 413 Dragoslav Stojanović T 1844-1845 1860-1861 1881-1882 1940 1973 Mijat Stojanović T 1985 2011-2012 414 P69 John Crosland Limaj et al transcript 13 January 2007 pp 1867 1869-1873 John Crosland T 3001-3002 3104-3106 P822 Situation report 24 March 1998 paras 2-3 415 P69 John Crosland Limaj et al transcript 13 January 2007 p 1873 P822 Situation report 24 March 1998 para 4 416 P79 Situation report 1 April 1998 para 6 417 P81 Situation report 9 April 1998 para 6 405 Case No IT-04-84-T 53 3 April 2008 policeman was wounded 418 On 15 April 1998 the situation in Kosovo Kosova was relatively quiet apart from a few incidents of unknown persons shooting at the police 419 96 By at least late April Serbian forces shelled the Dukagjin area Shemsedin Cekaj testified that from no later than 21 April 1998 until the end of May 1998 he was able to hear from his home in Peć Pejë and from Rznić Irzniq where he sometimes travelled the almost daily shelling of several villages towards the south 420 Rrustem Tetaj testified that Glođane Gllogjan was shelled consistently between April and September 1998 421 Cufë Krasniqi testified that from April 1998 to late August 1998 the villages of the Dukagjin area were shelled by Serbian artillery which led people to leave their villages in May 1998 422 Witness 28 testified that by 22 April 1998 she had heard from Albanian refugees of extensive shelling by the Serbian police in Dečani Deçan municipality 423 ECMM reported that Serbian forces fired on villages in Dečani Deçan municipality on 23 April 1998 424 97 The evidence shows that civilians were disappearing in or escaping from combat zones in Dečani Deçan municipality by late April The Trial Chamber examines such evidence in sections 4 2 6 5 6 6 6 7 and 6 12 3 below In addition Zvonko Marković testified that Albanians were passing through Ljumbarda Lumbardh while shooting which led all Serbs in about six Serbian households in the village to flee to Dečani Deçan around that time 425 Cufë Krasniqi confirmed that Serbian families left Dečani Deçan municipality in April and May 1998 426 98 The Trial Chamber received reliable contemporaneous evidence indicating that clashes between the KLA and Serbian forces resumed on 22 April 1998 In the morning of 22 April 1998 20-30 persons attacked the 52nd Military Police Battalion from a hill named “Suka e Vogelj” to which Serbian forces responded with a double-barrelled 418 P69 John Crosland Limaj et al transcript 13 January 2007 pp 1882-1884 P826 Situation report 15 April 1998 para 2 419 P83 Situation report 16 April 1998 para 2 420 Shemsedin Cekaj T 4387-4390 4471-4474 421 Rrustem Tetaj T 3724-3725 3730 3831-3832 3844 3847-3848 D38 Map of the Dukagjin zone marked in blue and red by Rrustem Tetaj P268 Map of the Radonjić Radoniq canal area marked by Rrustem Tetaj 422 P351 Cufë Krasniqi witness statement 14 June 2007 paras 56 90 423 Witness 28 T 10264-10265 424 P290 Daily report to HQ ECMM 24 April 1998 p 2 425 Zvonko Marković T 2327-2328 2341-2343 426 P351 Cufë Krasniqi witness statement 14 June 2007 para 74 Case No IT-04-84-T 54 3 April 2008 anti-aircraft gun and a 155 millimetre Howitzer 427 In the early afternoon there was another attack on the 52nd Military Police Battalion from Suka e Vogelj 428 Also on the same day there was an exchange of fire between troops of the 53rd border battalion and persons at a barricade in Babaloć Baballoq Dečani Deçan municipality 429 Colonel Delić ordered the deployment of standby forces in response to KLA activities 430 John Crosland noted that on 23 April 1998 the situation in Dečani Deçan and Đakovica Gjakovë remained extremely tense following substantial shooting in the area on the day before as a result of which many civilians both Serbs and Kosovar Albanians left the most affected areas 431 According to him the clashes which had commenced in the Drenica Drenicë area had now moved to the Dečani Deçan area 432 On that day Crosland was in the Dečani Deçan area where he observed an “unprecedented” presence of VJ men and material including heavy guns dug in at strategic positions near the FRY Albania border convoys with lorries full of soldiers and Gazelle helicopters and an Orao “Eagle” jet bomber in the air 433 He also reported that the Serbian refugee centre near Babaloć Baballoq was defended by up to 100 MUP men 434 and that life in bigger towns like Peć Pejë and Đakovica Gjakovë proceeded normally 435 On the same day VJ from the Košare Koshare border post clashed with the KLA at the FRY Albania border killing 16 of them 436 During the night the 52nd Military Police Battalion came under prolonged fire from automatic rifles and 427 P1017 Dragan Živanović witness statement 9 August 2007 para 62 P1138 Branko Gajić witness statement 2 October 2007 para 23 P1022 Order by Col Vladimir Lazarević 22 April 1998 p 1 P1091 Report by Col Vladimir Lazarević on attacks by the KLA on the VJ 1 September 1998 p 1 P1155 Combat report from the Priština Corps Command forward command post 22 April 1998 paras 1-2 P1156 Intelligence report from the Priština Corps Command forward command post 22 April 1998 para 8 428 P1138 Branko Gajić witness statement 2 October 2007 para 23 P1156 Intelligence report from the Priština Corps Command forward command post 22 April 1998 para 8 429 P1138 Branko Gajić witness statement 2 October 2007 para 23 P1155 Combat report from the Priština Corps Command forward command post 22 April 1998 para 4 P1156 Intelligence report from the Priština Corps Command forward command post 22 April 1998 para 8 See also John Crosland T 3006-3007 P84 Situation report 22 April 1998 430 P1138 Branko Gajić witness statement 2 October 2007 para 24 Branko Gajić T 9702-9704 P1157 Order for the Deployment of Standby Forces 22 April 1998 pp 1-6 431 P69 John Crosland Limaj et al transcript 13 January 2007 p 1887 P828 Situation report 23 April 1998 para 2 432 P69 John Crosland Limaj et al transcript 13 January 2007 pp 1887-1889 P828 Situation report 23 April 1998 para 3 433 John Crosland T 3008-3009 P85 Situation report 23 April 1998 para 2 434 P85 Situation report 23 April 1998 para 2 435 P85 Situation report 23 April 1998 para 3 436 P1138 Branko Gajić witness statement 2 October 2007 para 25 P1091 Report by Col Vladimir Lazarević 1 September 1998 p 1 P1158 Operations report from the Priština Corps Command 23 April 1998 p 1 Case No IT-04-84-T 55 3 April 2008 mortars 437 In the morning of 24 April 1998 unidentified persons attacked a police checkpoint in Turicevac Turiceve Srbica Skenderaj municipality killing one policeman and seriously wounding another 438 Around noon a police station in Klinčina Kliqinë Peć Pejë municipality was attacked 439 In the evening of 25 April 1998 the KLA launched an infantry attack on the 52nd Military Police Battalion at the Lake Radonjić Radoniq dam 440 On 27 April 1998 there were three separate clashes between the KLA and the VJ at the FRY Albania border 441 The next day Crosland observed movements of increased numbers of VJ men and material including artillery which he for the first time saw engaged in joint operations with the MUP 442 He assessed that the number of police and VJ in Kosovo Kosova was higher than at any stage so far in the crisis having been reinforced from outside the province 443 99 The attacks on the Ahmeti Jashari and Haradinaj compounds between late February and late March 1998 marked a significant escalation in the conflict between the KLA and the Serbian forces However they were isolated events followed by periods of relative calm The conflict intensified on 22 April 1998 Considering in particular the frequent shelling in Dečani Deçan municipality the flight of civilians from the countryside the daily clashes between the KLA and the Serbian forces and the unprecedented scale of deployment of VJ forces on the ground and their participation in combat the Trial Chamber finds on the basis of the evidence before it that the conflict came to meet the intensity requirement of the Tadić test on 22 April 1998 3 2 3 Conclusion 100 Considering the evidence and the Trial Chamber’s findings on both prongs of the Tadić test the Trial Chamber is convinced that an armed conflict existed in Kosovo Kosova from and including 22 April 1998 onwards The Trial Chamber 437 P1023 Priština Corps forward command post regular combat report 24 April 1998 p 2 P1017 Dragan Živanović witness statement 9 August 2007 para 31 P284 Daily report to HQ ECMM 25 April 1998 p 2 P1023 Priština Corps forward command post regular combat report 24 April 1998 p 2 439 P1017 Dragan Živanović witness statement 9 August 2007 para 31 P284 Daily report to HQ ECMM 25 April 1998 p 2 P1023 Priština Corps forward command post regular combat report 24 April 1998 p 2 440 P1025 Report by Col Vladimir Lazarević 26 April 1998 p 3 P1091 Report by Col Vladimir Lazarević 1 September 1998 p 2 441 P1091 Report by Col Vladimir Lazarević 1 September 1998 p 2 442 P69 John Crosland Limaj et al transcript 13 January 2007 pp 1897 1899-1900 P830 Situation report 28 April 1998 para 3 438 Case No IT-04-84-T 56 3 April 2008 received a voluminous amount of evidence relevant to armed conflict from May through September 1998 The KLA further developed its organization throughout the indictment period Combat operations continued and reached high levels of intensity during major offensives of Serbian forces into the Dukagjin area in late May early-to-mid-August and early September 1998 444 However since according to the Tadić test an internal armed conflict continues until a peaceful settlement is achieved and since there is no evidence of such a settlement during the indictment period there is no need for the Trial Chamber to explore the oscillating intensity of the armed conflict in the remainder of the indictment period 443 John Crosland T 3012-3013 P89 Situation report 28 April 1998 para 2 For late May see for example P69 John Crosland Limaj et al transcript 13 January 2007 pp 19251927 John Crosland T 4608 4611 4616 P1017 Dragan Živanović witness statement 9 August 2007 paras 34 81 84-86 Rrustem Tetaj T 3661 3714-3717 P94 UK Telegram 28 May 1998 P836 UK Telegram 27 May 2007 paras 8-9 P1047 Report by Col Vladimir Lazarević 22 May 1998 pp 2-3 P1049 Report by Col Vladimir Lazarević 23 May 1998 P1091 Report by Col Vladimir Lazarević 1 September 1998 D71 UK Telegram 28 May 1998 For early-to-mid August see for example P69 John Crosland Limaj et al transcript 13 January 2007 pp 1966-1967 John Crosland T 4654-4655 4735-4738 P317 Shemsedin Cekaj witness statement 14 May 2007 para 28 Shemsedin Cekaj T 4427-4428 4487 4516 4493-4496 P885 Witness 17 witness statement 14 August 2007 paras 86-88 90 93-94 P1017 Dragan Živanović witness statement 9 August 2007 paras 96 98-120 P324 Map marked by John Crosland D81 Report by Colonel Mladen Ćirković 7 August 1998 For early September see for example P885 Witness 17 witness statement 14 August 2007 para 121 P1017 Dragan Živanović witness statement 9 August 2007 paras 130-138 John Crosland T 2970-2971 Shemsedin Cekaj T 4422 4464-4465 444 Case No IT-04-84-T 57 3 April 2008 4 General elements and jurisdictional requirement for Article 5 of the Statute 4 1 Law on general elements and the jurisdictional requirement 101 The Indictment charges the Accused with 18 counts of crimes against humanity under Article 5 of the Statute 445 Article 5 states “The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict whether international or internal in character and directed against a civilian population” The jurisdictional requirements and general elements are analysed below 102 Committed in armed conflict The crimes must be committed in an armed conflict whether international or internal in character This requirement is not part of the customary-law definition of crimes against humanity 446 It is a jurisdictional requirement 447 which translates into the need for proof that there was an armed conflict at the relevant time and place 448 The definition of armed conflict is found above in section 3 1 103 Widespread or systematic attack directed against a civilian population The general elements for the applicability of Article 5 of the Statute are i there was an attack ii the attack was widespread or systematic iii the attack was directed against a civilian population iv the acts of the perpetrator were part of the attack v the perpetrator knew that there was at the time of his or her acts a widespread or systematic attack directed against a civilian population and that his or her acts were part of that attack 449 104 Attack An attack on a civilian population is a separate and distinct concept from that of an armed conflict 450 The attack is not limited to the use of force but encompasses any mistreatment of the civilian population and can commence before 445 Counts 1 3 5 7 9 11 13 15 17 19 21 23 25 27 29 31 33 and 35 of the Indictment charge the Accused with crimes against humanity under Article 5 of the Statute 446 Tadić Appeal Judgement para 249 447 Tadić Appeal Judgement para 249 Kunarac et al Appeal Judgement para 83 448 Tadić Appeal Judgement para 249 251 Kunarac et al Appeal Judgement para 83 449 Kunarac et al Appeal Judgement para 85 450 Tadić Appeal Judgement para 251 Case No IT-04-84-T 58 3 April 2008 outlast or continue during the armed conflict 451 An attack is composed of conduct causing physical or mental injury as well as acts preparatory to such conduct 452 105 Widespread or systematic “Widespread” refers to the large-scale nature of the attack and the number of targeted persons 453 “Systematic” refers to the “organized nature of the acts of violence” 454 The existence of a plan or policy can be indicative of the systematic character of the attack but it is not a distinct legal element 455 106 Directed against a civilian population “Directed against” indicates that it is the civilian population which is the primary object of the attack 456 The attack does not have to be directed against the civilian population of the entire area relevant to the indictment 457 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 Trial Chamber that the attack was in fact directed against a civilian “population” rather than against a limited and randomly selected number of individuals 458 107 Common Article 3 of the 1949 Geneva Conventions and Article 50 of Additional Protocol I of the same Conventions provide guidance when defining “civilian” for purposes of Article 5 of the Statute Additional Protocol I defines a “civilian” as “an individual who is not a member of the armed forces or otherwise a combatant” 459 Common Article 3 reflects customary international law for the minimum level of protection of persons taking no active part in hostilities 460 The Appeals Chamber has adopted a broad understanding of “civilian” for the purposes of Article 5 which goes beyond the definition set out in Additional Protocol I 461 A civilian population may therefore include not only civilians narrowly defined but also persons who are not taking active part in the hostilities 451 Tadić Appeal Judgement para 251 Kunarac et al Appeal Judgement para 86 Krajišnik Trial Judgement para 706 453 Kunarac et al Appeal Judgement para 94 Blaškić Appeal Judgement para 101 Kordić and Čerkez Appeal Judgement para 94 454 Kunarac et al Appeal Judgement para 94 455 Kunarac et al Appeal Judgement paras 98 101 Blaškić Appeal Judgement para 120 456 Kunarac et al Appeal Judgement para 91 457 Kunarac et al Appeal Judgement para 90 458 Kunarac et al Appeal Judgement para 90 Blaškić Appeal Judgement para 105 Kordić and Čerkez Appeal Judgement para 95 Stakić Appeal Judgement para 247 459 Additional Protocol I Art 50 2 460 Tadić Jurisdiction Decision para 102 461 Kordić and Čerkez Appeal Judgement paras 421 570 580 452 Case No IT-04-84-T 59 3 April 2008 108 Acts of the perpetrator are part of the attack Acts which cannot reasonably be understood to be objectively part of the attack fail this requirement 462 109 Perpetrator’s knowledge The perpetrator must know that that there is a widespread or systematic attack against a civilian population and that his or her acts are part of that attack 463 The perpetrator does not need to have detailed knowledge of the attack or share the purpose of it 464 4 2 Findings 110 As concluded in section 3 above the Trial Chamber is convinced that an armed conflict existed in Kosovo Kosova from and including 22 April 1998 onwards The jurisdictional requirement for crimes against humanity committed from this date onwards has therefore been met The Trial Chamber will now deal with the general elements of crimes against humanity 111 The Prosecution alleges that there was “a widespread or systematic attack by the KLA directed against part of the civilian population in the Dečani Deçan Peć Pejë Đakovica Gjakovë Istok Istog and Klina Klinë municipalities of Kosovo” 465 This part of the civilian population included according to the Prosecution “the Serb civilian population in these municipalities as well as civilians perceived to be collaborating with the Serbs or otherwise not supporting the KLA” 466 According to the Prosecution’s estimates in 1998 the non-Albanian population in the above mentioned municipalities amounted to approximately 60 000 people 14% of the total population 467 Of this number approximately 30 000 people were Serbs 7% of the total population 468 112 The alleged attack against the civilian population consisted of “a military campaign … to drive ethnic Serbs out of the villages where they were living” 469 According to the Prosecution the KLA also harassed beat and killed many Serbian and 462 Kunarac et al Appeal Judgement para 100 Kunarac et al Appeal Judgement para 99 Blaškić Appeal Judgement para 124 Kordić and Čerkez Appeal Judgement paras 99-100 464 Tadić Appeal Judgement paras 248 252 Kunarac et al Appeal Judgement para 102-3 Blaškić Appeal Judgement para 124 Kordić and Čerkez Appeal Judgement para 99 465 Indictment para 15 466 Indictment para 15 467 Indictment para 34 468 Indictment para 34 469 Indictment para 37 463 Case No IT-04-84-T 60 3 April 2008 Roma civilians 470 Finally the Prosecution alleges that the KLA abducted more than 60 Serbian and Roma civilians as well as Kosovar Albanian civilians perceived to be collaborators or perceived not supporting the KLA in the above mentioned municipalities and killed many of them 471 These victims are not the ones referred to under the individual counts in the Indictment 472 The alleged attack also consisted of detaining and ill-treating persons at a KLA headquarters in Jablanica Jabllanicë 473 113 In addition to the evidence that the Trial Chamber will review below in this section the evidence on the incidents charged as individual counts in the Indictment is relevant for findings on the general elements of crimes against humanity The evidence the Prosecution presented with respect to Kosovar Albanians perceived to be collaborators or not supporting the KLA only addresses those incidents that have been charged as individual counts The incidents in these counts concern allegations of murder of 17 Kosovar Albanian men and women in three municipalities between April and August 1998 and the detention and ill-treatment of four men at the Jablanica Jabllanicë headquarters No evidence was presented in relation to incidents beyond those mentioned where Kosovar Albanians perceived to be collaborators or not supporting the KLA were targeted As far as the non-Albanian civilian population is concerned the counts deal with the alleged murder of 21 Serb Montenegrin and Roma men and women in four municipalities from April to July 1998 They also deal with the alleged detention ill-treatment and expulsion of approximately 14 Serb Montenegrin Bosnian and Roma men and women during approximately the same period 114 The Trial Chamber will examine these counts in greater detail in section 6 below Here it is sufficient to state that for many of them the evidence does not allow the Trial Chamber to conclude whether a crime has been committed or that the KLA was involved as alleged The evidence on some of the other counts indicates that the victims may have been targeted primarily for reasons pertaining to them individually rather than them being members of the targeted civilian population 474 Therefore these counts cannot properly be taken into account in this section when determining whether there was an attack against a civilian population 470 Indictment para 38 Indictment para 40 472 Indictment para 40 473 Indictment para 43 474 See sections 6 4 6 12 6 and 6 12 12 below 471 Case No IT-04-84-T 61 3 April 2008 115 The Trial Chamber has heard some additional evidence relating to whether there was an attack against a civilian population in the municipalities listed in the Indictment This evidence describes various attacks on Serbs which in combination with the incidents charged as individual counts allegedly forced Serbian civilians to leave their homes Nebojša Avramović a crime technician in Đakovica Gjakovë MUP 475 testified that during January and February 1998 the KLA attacked around a dozen or more Serbian civilian cars which were travelling at night on the Đakovica Gjakovë-Peć Pejë road 476 He further testified that from the end of April or the beginning of May 1998 until September 1998 such attacks became more frequent and also began to take place during the day 477 Avramović heard from his colleagues that Albanian civilians would leave on the light in their cars when driving at night as a sign to the KLA that the car belonged to an Albanian rather than a Serb 478 The car that Avramović travelled in along the Đakovica Gjakovë-Peć Pejë road which had no distinguishing features that would identify it as a MUP car was attacked many times 479 These attacks described by Avramović should be distinguished from attacks on the Serbian police evidence of which has also been presented and which was reviewed in section 3 2 above 116 The Trial Chamber has also received some evidence about the alleged attack on the refugee settlement near Babaloć Baballoq in Dečani Deçan municipality Witness 28 testified that Serbian refugees from Albania living in the refugee settlement informed the witness that from late 1997 onwards the KLA occasionally attacked the settlement at times using grenade launchers 480 These attacks increased in intensity from 18 April 1998 onwards with KLA forces shooting at the settlement from Babaloć Baballoq village and the surrounding hills on a daily basis 481 However Albanians told Witness 28 that starting on 20 April 1998 the Serbian police shot at them from the Babaloć Baballoq refugee settlement and the surrounding hills Suka Babaloć Baballoq and Suka Crmljane Cermjan and around 22 April 1998 shelled the village of 475 P380 Nebojša Avramović witness statement 4 June 2007 para 4 P380 Nebojša Avramović witness statement 4 June 2007 para 11 Nebojša Avramović T 6597 477 P380 Nebojša Avramović witness statement 4 June 2007 para 11 478 P380 Nebojša Avramović witness statement 4 June 2007 para 11 Nebojša Avramović T 6598 479 P380 Nebojša Avramović witness statement 4 June 2007 para 14 480 P1211 Witness 28 witness statement 28 October 2007 paras 37 39 Witness 28 T 10181 481 P1211 Witness 28 witness statement 28 October 2007 paras 40-42 Witness 28 T 10181-10183 10243 476 Case No IT-04-84-T 62 3 April 2008 Babaloć Baballoq 482 At the end of April 1998 the Serbian refugees left the refugee settlement and the VJ moved in establishing a defensive front line position 483 117 With regard to the attacks on Serbian homes Marijana Anđelković testified that at the end of March 1998 she spoke to Jela Ćulafić and his wife Nastadin in Ratiš Ratishë in Dečani Deçan municipality 484 The couple pointed out holes in the roof and walls of their house which they said had been caused by rocket-propelled grenades and automatic weapons 485 The Trial Chamber has also heard evidence about the attack on the Ćulafić house from other witnesses 486 None of the witnesses provided any details about who attacked the house and why although Witness 60 testified that the Ćulafić family was the first to leave the area followed by all other Serbs 487 The Trial Chamber has also heard evidence from Miloica Vlahović concerning another attack on Serbian property He testified that he heard from his younger sister Natalia who lived in the village of Crmljane Cermjan in Đakovica Gjakovë municipality that at the end of February or early March 1998 all three households of the Babović brothers in the village were attacked by several men using automatic weapons 488 The witness himself saw the bullet holes in the walls of the house as well as the bullet casings 489 The Trial Chamber has received less detailed evidence about another eight to ten attacks in Đakovica Gjakovë and Klina Klinë municipalities during the first days of March 1998 490 118 In conclusion the Trial Chamber has heard evidence on a relatively small number of incidents Moreover the evidence is often insufficiently precise to conclude who was or were responsible for the incidents and whether they formed part of a larger attack against a civilian population The evidence that has been presented with regard to the allegation in the Indictment that the KLA abducted 60 civilians and subsequently killed many of them is not nearly sufficient to establish that this number of civilians 482 P1211 Witness 28 witness statement 28 October 2007 para 42 Witness 28 T 10182-10183 10239-10241 10244 10264 483 P1211 Witness 28 witness statement 28 October 2007 para 43 Witness 28 T 10179 484 Marijana Anđelković T 476 479 482 484-486 P3 Anđelković’s notebook volume 1 p 32 485 Marijana Anđelković T 484 P3 Anđelković’s notebook volume 1 p 32 486 Miloica Vlahović T 1550-1551 1638 Witness 60 T 2221-2222 See also P855 MUP criminal incident report 4 March 1998 487 Witness 60 T 2223 488 Miloica Vlahović T 1552-1553 489 Miloica Vlahović T 1553 490 See P857 MUP criminal incident report 10 March 1998 P1143 549th Motorised Brigade report signed by Ljubiša Lojanica 2 March 1998 P967 RDB official note 3 March 1998 P968 RDB official note 4 March 1998 Case No IT-04-84-T 63 3 April 2008 were abducted that many of them were killed and that the KLA bear responsibility for the alleged acts The evidence points to many people in the area hearing about the individual incidents mentioned above with the possibility that this would have spread fear among the Serbian population and therefore contributed to people feeling forced to leave their homes Witness 60 testified that in the beginning of 1998 there were nine Serbian households in Dašinovac Dasinoc in Dečani Deçan municipality but that in early March 1998 Serbs in the village and surrounding villages began to leave out of fear of the KLA 491 Serbian neighbours tried to convince the witness that it was safer to go elsewhere than to stay 492 Witness 60 testified that around 17-18 April 1998 the witness was in a car driving towards Peć Pejë when at Ljumbarda Lumbardh in Dečani Deçan municipality one man out of a group of approximately ten men dressed in black and standing in a meadow on the left side of the road pulled out a gun and fired in the direction of the car 493 This incident led the witness to fear for his safety and that of his family 494 Witness 60 further testified how he and his family left the village with the help of two men from their village one of whom the witness understood to be a KLA member 495 The family found accommodation in a holiday resort near Dečani Deçan along with other Serbs who had left their homes 496 The witness testified that they were from Papračane Prapacan Donji Ratiš Ratishë ë Ultë Gornji Ratiš Ratishë ë Eperm Dašinovac Dasinoc and Ljumbarda Lumbardh in Dečani Deçan municipality 497 When the witness returned to his property in September or October 1998 he found it empty and destroyed 498 He also visited the houses of Radun Dabetić and Novak Stijović which were also destroyed and almost empty 499 He also saw some burned-down Albanian houses 500 119 Witness 28 a researcher for a humanitarian organization 501 testified that in the last week of April 1998 the witness counted 34 Serbian families having left their 491 Witness 60 T 2216 2220 2250-2255 P38 Map with the Serb houses in Dašinovac Dasinoq marked 492 Witness 60 T 2223-2224 493 Witness 60 T 2225-2226 494 Witness 60 T 2228 495 Witness 60 T 2229-2237 2247-2249 2251 2267-2268 2272-2273 2275-2277 2288-2289 496 Witness 60 T 2237-2238 2277-2278 497 Witness 60 T 2238 498 Witness 60 T 2238-2241 499 Witness 60 T 2242 500 Witness 60 T 2268 501 P1211 Witness 28 witness statement 28 October 2007 paras 2 9 11 14 Witness 28 T 10172 Case No IT-04-84-T 64 3 April 2008 villages in the “Dukagjin area” and living in Dečani Deçan as refugees 502 According to the witness 123 Serbian families had been living in the “Dečani Deçan area” in early 1998 503 The numbers mentioned are difficult to compare with each other since the 34 Serbian families came from villages all over the “Dukagjin area” while the 123 Serbian families came from the “Dečani Deçan area” Whether this refers to the town or the municipality of Dečani Deçan it is still a smaller area than the “Dukagjin area” Even if the Trial Chamber could rely on statistics such as the one provided by Witness 28 they would not provide an answer to the question of why Serbs left their homes In Dečani Deçan Serbs told the witness that by 19 April 1998 some Serbs had left in fear of attacks 504 just like Witness 60 had done However Momčilo Antić testified that he and several members of his family moved from Ločane Lloçan to Peć Pejë in April 1998 following sounds of gunfire and the sight of tracer bullets somewhere in the direction of Prilep Prelep 505 The witness clarified that they were not told by anyone to leave 506 Other Serbian families from the village also moved out during those days leaving some of the elderly behind 507 Similarly Witness 61 testified that she and her family left their village in Dečani Deçan in August 1998 because of heavy fighting between KLA and Serbian forces 508 Dragoslav Stojanović testified that in the evening of 24 March 1998 after the attack on the Haradinaj compound a police commander came to the Stojanović home and told him that Ramush Haradinaj and his group were armed so anything could happen and therefore the witness and his family should leave 509 This was confirmed by Dragoslav’s brother Mijat Stojanović who testified that in the evening of 24 March 1998 he and his family were ordered by a police officer to leave their home for security reasons 510 The Trial Chamber has also received other evidence about Serbs leaving their homes either on their own initiative assisted encouraged or ordered to do so by Serbian police due to the ongoing conflict between the Serbian forces and the KLA 511 Witness 28 testified that Kosovar Albanian families also fled their homes during this period due to the risk of attacks from the Serbian 502 P1211 Witness 28 witness statement 28 October 2007 paras 44-45 Witness 28 T 10185-10186 P1211 Witness 28 witness statement 28 October 2007 para 45 504 P1211 Witness 28 witness statement 28 October 2007 para 46 Witness 28 T 10201 10223 505 Momčilo Antić T 2409-2415 2417 506 Momčilo Antić T 2435 507 Momčilo Antić T 2412-2417 508 Witness 61 T 3999 4006 509 Dragoslav Stojanović T 1860 510 Mijat Stojanović T 2011 511 P351 Cufë Krasniqi witness statement 14 June 2007 para 74 Zvonko Marković T 2327-2328 2341-2343 Goran Vlahović T 1737-1742 503 Case No IT-04-84-T 65 3 April 2008 police or because of the conflict between the Serbian forces and the KLA 512 Other witnesses also testified about Kosovar Albanians leaving their homes as result of or because of the risk of Serbian military attacks 513 120 In conclusion many Serbs left their homes out of fear grounded or not of being deliberately attacked by the KLA but there were also those who fled out of general fear of being caught up in the armed conflict between Serbian forces and the KLA This is further confirmed by the fact that Kosovar Albanians fled from their homes during the indictment period as well The Trial Chamber can therefore not draw any general conclusion with regard to the alleged attack against a civilian population from the mere fact that many Serbian civilians left their homes during this period 121 The Trial Chamber has heard much evidence about the tense situation in Kosovo Kosova from long before the indictment period with the Serbian authorities and the Serbian minority in Kosovo Kosova on the one hand and Kosovar Albanians on the other as adversaries This situation calls for caution when determining the authorship of violence against victims of a certain ethnicity or affiliation Lacking evidence to the contrary the Trial Chamber allows for the possibility that animosity among the factions may have caused individuals belonging to one faction to act violently against individuals belonging to the other out of personal anger rather than in a structured or organized manner 122 The Trial Chamber finds that based on the evidence received the ill-treatment forcible transfer and killings of Serbian and Roma civilians as well as Kosovar Albanian civilians perceived to be collaborators or perceived not supporting the KLA whether taking these groups separately or as a whole was not on a scale or frequency that would allow for a conclusion that there was an attack against a civilian population The Trial Chamber also finds that some of the victims were singled out primarily for reasons pertaining to them individually such as their real or perceived connection with the Serbian authorities or for other reasons rather than being members of the civilian population The Trial Chamber does not address the other general elements of crimes against humanity “widespread or systematic” since these can only be examined in 512 Witness 28 T 10195-10196 P1211 Witness 28 witness statement 28 October 2007 para 50 P317 Shemsedin Cekaj witness statement 14 May 2007 para 28 Shemsedin Cekaj T 4487 4495 P351 Cufë Krasniqi witness statement 14 June 2007 paras 56 81-82 Zymer Hasanaj T 8723 Avni Krasniqi T 10716-10717 P1223 Avdullah Avdija witness statement 11 November 2007 paras 5-6 513 Case No IT-04-84-T 66 3 April 2008 relation to an attack against a civilian population The Trial Chamber concludes that the Accused should be acquitted of Counts 1 3 5 7 9 11 13 15 17 19 21 23 25 27 29 31 33 and 35 of the Indictment P270 Achilleas Pappas witness statement 9 May 2007 paras 9 14 Achilleas Pappas T 4083 4264 4282 4306-4308 Case No IT-04-84-T 67 3 April 2008 5 Law on crimes under Article 3 of the Statute and individual responsibility 5 1 Crimes 5 1 1 Murder 123 Counts 8 10 12 14 16 18 20 22 24 26 30 and 32 of the Indictment charge the Accused with murder as a violation of the laws or customs of war under Article 3 The general elements for murder under Article 3 have been discussed in section 3 1 above 124 The crime of murder is constituted of the following elements a the victim died b an act or omission of the perpetrator caused the victim’s death and c the act or omission was committed with intent to kill the victim or to wilfully cause serious bodily harm which the perpetrator should reasonably have known might lead to death 514 5 1 2 Torture and cruel treatment 125 Counts 2 4 6 14 16 18 20 24 26 28 30 32 34 and 37 of the Indictment charge the Accused with cruel treatment as a violation of the laws or customs of war punishable under Article 3 of the Statute Counts 2 4 6 20 24 28 30 32 34 and 37 of the Indictment charge the Accused with torture as a violation of the laws or customs of war punishable under Article 3 of the Statute The general elements for these crimes as violations of the laws or customs of war have been discussed in section 3 1 above 126 Cruel treatment Cruel treatment requires proof of the following elements a an act or omission caused serious mental or physical suffering or injury or constituted a serious attack on human dignity 515 and b the act or omission was committed with intent or alternatively with knowledge that the act or omission was likely to cause serious mental or physical suffering or a 514 515 Kvočka et al Appeal Judgement para 261 Čelebići Appeal Judgement para 424 Blaškić Appeal Judgement para 595 Case No IT-04-84-T 68 3 April 2008 serious attack on human dignity and the perpetrator was indifferent as to whether such consequences would result from his act or omission 516 127 Torture The crime of torture consists of the following elements a an act or omission inflicted severe pain or physical or mental suffering b the act or omission was committed with intent and c the act or omission was aimed at obtaining information or a confession or at punishing intimidating or coercing the victim or a third person or at discriminating on any ground against the victim or a third person 517 128 There is no requirement that the severe pain or suffering be inflicted exclusively for one or more of the purposes mentioned but only that such a purpose or purposes be part of the motivation behind the conduct 518 5 1 3 Rape 129 Count 36 of the Indictment charges the Accused with rape as a violation of the laws or customs of war punishable under Article 3 of the Statute The general elements for rape under Article 3 have been discussed in section 3 1 above 130 The crime of rape consists of the following elements a a sexual penetration however slight i of the vagina or anus of the victim by the penis of the perpetrator or by any other object used by the perpetrator or ii of the mouth of the victim by the penis of the perpetrator b the sexual penetration occurred without the consent of the victim Consent for this purpose must be consent given voluntarily and c the sexual penetration was committed with intent and with the knowledge that it occurred without the consent of the victim 519 516 Krnojelac Trial Judgement para 132 Kunarac et al Appeal Judgement paras 142 144 518 Kunarac et al Appeal Judgement para 155 519 Kunarac et al Appeal Judgement paras 127-128 517 Case No IT-04-84-T 69 3 April 2008 5 1 4 Outrages upon personal dignity 131 Count 2 of the Indictment charges the Accused with outrages upon personal dignity as a violation of the laws or customs of war punishable under Article 3 of the Statute The general elements for outrages upon personal dignity under Article 3 have been discussed in section 3 1 above 132 The crime of outrages upon personal dignity consists of the following elements a an act or omission which from an objective point of view caused severe humiliation or degradation or otherwise was a serious attack on human dignity and b the act or omission was committed with intent and with the knowledge that it could have that effect 520 5 2 Responsibility for crimes 5 2 1 Joint criminal enterprise 133 The Prosecution’s case is that each Accused is responsible pursuant to Article 7 1 of the Statute for the crimes charged in the Indictment and in particular that the Accused are responsible as participants in a joint criminal enterprise 521 The Indictment alleges that each crime charged was within the common criminal purpose of the JCE and that each Accused shared the intent with the other co-perpetrators to commit those crimes Alternatively to the extent that some of the crimes charged did not fall within the JCE they were a natural and foreseeable consequence of the JCE and each Accused was aware that those crimes were a natural and foreseeable consequence of the execution of the JCE 522 134 The Indictment further specifies that by virtue of the participation of each Accused in the JCE each is individually responsible for the acts of his co-Accused and of other members of the JCE insofar as those acts were in furtherance of the common criminal purpose and were either within the objective of the JCE or were a natural and foreseeable consequence of its execution 523 It is alleged moreover that each Accused is also individually responsible for the acts of persons who were not members of the 520 Kunarac et al Appeal Judgement paras 161-163 Indictment paras 17 25 522 Indictment para 25 523 Indictment para 28 521 Case No IT-04-84-T 70 3 April 2008 JCE but who were used by the members of the JCE to carry out crimes committed in furtherance of the common criminal purpose which were either within the scope of the JCE or were a natural and foreseeable consequence of its execution 524 135 In the context of the Tribunal’s jurisprudence the JCE doctrine received its first detailed treatment in the Tadić Appeal Judgement 525 The Tadić Appeals Chamber found in broad terms that a person who in execution of a common criminal purpose contributes to the commission of crimes by a group of persons may be held criminally liable subject to certain conditions 526 The Appeals Chamber’s analysis of customary international law resulted in the identification and definition of three forms of JCE liability In the first JCE form all co-defendants acting pursuant to a common design possess the same criminal intention for instance the formulation of a plan among the co-perpetrators to kill where in effecting this common design and even if each co-perpetrator carries out a different role within it they all possess the intent to kill The objective and subjective prerequisites for imputing criminal responsibility to a participant who did not or cannot be proven to have effected the killing are as follows i the accused must voluntarily participate in one aspect of the common design for instance by inflicting non-fatal violence upon the victim or by providing material assistance to or facilitating the activities of his co-perpetrators and ii the accused even if not personally effecting the killing must nevertheless intend this result 527 136 The second form of JCE which is described as a type of the first form was found to have served cases where the offences charged were alleged to have been committed by members of military or administrative units such as those running concentration camps and comparable “systems” 528 137 The third form of JCE is characterized by a common criminal design to pursue a course of conduct where one or more of the co-perpetrators commits an act which while outside the common design is a natural and foreseeable consequence of the 524 Indictment para 29 Tadić Appeal Judgement paras 172-185 526 Tadić Appeal Judgement para 190 527 Tadić Appeal Judgement para 196 528 Tadić Appeal Judgement paras 202-203 For the notion of “system” see Krnojelac Appeal Judgement para 89 and Vasiljević Appeal Judgement para 105 525 Case No IT-04-84-T 71 3 April 2008 implementation of that design 529 There are two additional requirements for this form one objective the other subjective 530 The objective element does not depend upon the accused’s state of mind This is the requirement that the resulting crime was a natural and foreseeable consequence of the JCE’s execution It is to be distinguished from the subjective state of mind namely that the accused was aware that the resulting crime was a possible consequence of the execution of the JCE and participated with that awareness 531 138 To summarize the elements of the first and third forms of JCE i Plurality of persons A joint criminal enterprise exists when a plurality of persons participates in the realization of a common criminal objective 532 The persons participating in the criminal enterprise need not be organized in a military political or administrative structure 533 ii A common objective which amounts to or involves the commission of a crime provided for in the Statute The first form of the JCE exists where the common objective amounts to or involves the commission of a crime provided for in the Statute The mens rea required for the first form is that the JCE participants including the accused person had a common state of mind namely the state of mind that the statutory crime s forming part of the objective should be carried out 534 The third form of the JCE depends on whether it is natural and foreseeable that the execution of the JCE in its first form will lead to the commission of one or more other statutory crimes In addition to the intent of the first form the third form requires proof that the accused person took the risk that another statutory crime not forming part of the common criminal objective but nevertheless being a natural and foreseeable consequence of the JCE would be committed 535 529 Tadić Appeal Judgement para 204 Prosecutor v Radoslav Brđanin and Momir Talić Decision on Form of Further Amended Indictment and Prosecution Application to Amend 26 June 2001 paras 28-30 531 Blaškić Appeal Judgement para 33 532 Kvočka et al Trial Judgement para 307 533 Tadić Appeal Judgement para 227 534 Tadić Appeal Judgement paras 227-228 535 Tadić Appeal Judgement paras 227-228 Prosecutor v Radoslav Brđanin and Momir Talić Decision on Form of Further Amended Indictment and Prosecution Application to Amend 26 June 2001 para 31 Krstić Trial Judgement para 613 Blaškić Appeal Judgement para 33 530 Case No IT-04-84-T 72 3 April 2008 According to the Appeals Chamber the common objective need not have been previously arranged or formulated 536 This means that the second JCE element does not presume preparatory planning or explicit agreement among JCE participants or between JCE participants and third persons 537 Moreover a JCE may exist even if none or only some of the principal perpetrators of the crimes are members of the JCE For example a JCE may exist where none of the principal perpetrators are aware of the JCE or its objective yet are procured by one or more members of the JCE to commit crimes which further that objective Thus “to hold a member of a JCE responsible for crimes committed by non-members of the enterprise it has to be shown that the crime can be imputed to one member of the joint criminal enterprise and that this member – when using a principal perpetrator – acted in accordance with the common plan ” 538 iii Participation of the accused in the objective’s implementation This is achieved by the accused’s commission of a crime forming part of the common objective and provided for in the Statute Alternatively instead of committing the intended crime as a principal perpetrator the accused’s conduct may satisfy this element if it involved procuring or giving assistance to the execution of a crime forming part of the common objective 539 A contribution of an accused person to the JCE need not have been as a matter of law either substantial 540 or necessary to the achievement of the JCE’s objective 541 However “it should at least be a significant contribution to the crimes for which the accused is to be found responsible ” 542 139 In relation to the first two elements of JCE liability it is the common objective that begins to transform a plurality of persons into a group or enterprise because what this plurality then has in common is the particular objective It is evident however that a common objective alone is not always sufficient to determine a group because different and independent groups may happen to share identical objectives It is thus the interaction or cooperation among persons – their joint action – in addition to their 536 Tadić Appeal Judgement para 227 Kvočka et al Appeal Judgement paras 115-119 Brđanin Appeal Judgement para 418 538 Brđanin Appeal Judgement para 413 539 Tadić Appeal Judgement para 227 Prosecutor v Milorad Krnojelac Decision on Form of Second Amended Indictment 11 May 2000 para 15 540 Kvočka et al Appeal Judgement para 97 541 Kvočka et al Appeal Judgement para 98 542 Brđanin Appeal Judgement para 430 537 Case No IT-04-84-T 73 3 April 2008 common objective that forges a group out of a mere plurality 543 In other words the persons in a criminal enterprise must be shown to act together or in concert with each other in the implementation of a common objective if they are to share responsibility for crimes committed through the JCE 544 5 2 2 Committing planning instigating ordering and aiding and abetting 140 The Indictment charges each of the Accused alternatively to their participation in the joint criminal enterprise with individual criminal responsibility under Article 7 1 pursuant to the modes of liability of committing planning instigating ordering or aiding and abetting Ramush Haradinaj is charged for committing under Counts 4 16 and 24 for planning under Count 16 for instigating or ordering under Counts 2 and 34 and for aiding and abetting under Counts 2 4 16 24 32 and 34 Idriz Balaj is charged for committing under Counts 8 14 18 20 24 32 34 36 and 37 for planning under Counts 14 32 34 36 and 37 for instigating under Counts 14 and 32 and for aiding and abetting under Counts 8 14 18 20 24 32 and 34 Lahi Brahimaj is charged for committing under Counts 28 32 and 34 for planning under Counts 32 and 34 for instigating under Counts 24 26 and 32 for ordering under Counts 24 and 26 and for aiding and abetting under Counts 24 26 28 32 and 34 141 Article 7 1 covers first and foremost the physical perpetration of a crime or the culpable omission of an act that was mandated by law 545 Article 7 1 also reflects the principle that criminal responsibility for a crime in Articles 2 to 5 of the Statute does not attach solely to individuals who commit crimes but may also extend to individuals who contribute to crimes in the other ways referred to above For an accused to be found liable for a crime pursuant to one of these modes of responsibility the crime in question must actually have been committed 546 Furthermore his or her actions must have contributed substantially to the commission of the crime 547 Liability may also attach to omissions where there is a duty to act 548 543 Krajišnik Trial Judgement para 884 Brđanin Appeal Judgement paras 410 430 545 Tadić Appeal Judgement para 188 546 For planning see Kordić and Čerkez Appeal Judgement para 26 For instigating see Kordić and Čerkez Appeal Judgement para 27 For ordering see Kamuhanda Appeal Judgement para 75 For aiding and abetting see Simić et al Appeal Judgement para 85 547 For planning see Kordić and Čerkez Appeal Judgement para 26 For instigating see Kordić and Čerkez Appeal Judgement para 27 For ordering see Kayishema and Ruzindana Appeal Judgement para 186 Kamuhanda Appeal Judgement para 75 For aiding and abetting see Tadić Appeal 544 Case No IT-04-84-T 74 3 April 2008 142 Planning Liability may be incurred by planning a crime that is later committed by the principal perpetrator 549 The planner must intend that the crime be committed or intend that the plan be executed in the awareness of the substantial likelihood that it would lead to the commission of the crime 550 143 Instigating Liability may be incurred by instigating the principal perpetrator to commit a crime 551 The instigator must intend that the crime be committed or be aware of the substantial likelihood that the crime would be committed as a consequence of his or her conduct 552 144 Ordering Liability may be incurred by ordering the principal perpetrator to commit a crime or to engage in conduct that results in the commission of a crime 553 The person giving the order must at the time it is given be in a position of formal or informal authority over the person who commits the crime 554 The person giving the order must intend that the crime be committed or be aware of the substantial likelihood that the crime would be committed in the execution of the order 555 145 Aiding and abetting Liability may be incurred by carrying out acts directed to assist encourage or lend moral support to the commission of a crime 556 Such encouragement may consist of tacit approval of an aider and abettor who is in a position of authority and physically present on the crime scene even where he or she has no duty to act 557 The aiding and abetting may occur before during or after the commission of the principal crime 558 Aiding and abetting after the commission of a crime is possible if the perpetrator committed the crime in the knowledge that the aider and abettor was to Judgement para 229 Čelebići Appeal Judgement para 352 Vasiljević Appeal Judgement para 102 Blaškić Appeal Judgement paras 45-46 48 Kvočka et al Appeal Judgement para 89 Simić et al Appeal Judgement para 85 Blagojević and Jokić Appeal Judgement para 127 548 Blaškić Appeal Judgement para 663 Galić Appeal Judgement para 175 Brđanin Appeal Judgement para 274 549 Kordić and Čerkez Appeal Judgement para 26 550 Kordić and Čerkez Appeal Judgement paras 29 31 551 Kordić and Čerkez Appeal Judgement para 27 552 Kordić and Čerkez Appeal Judgement paras 29 32 553 Kordić and Čerkez Appeal Judgement para 28 Galić Appeal Judgement para 176 554 Kordić and Čerkez Appeal Judgement para 28 Galić Appeal Judgement para 176 555 Blaškić Appeal Judgement para 42 Kordić and Čerkez Appeal Judgement paras 29-30 556 Tadić Appeal Judgement para 229 Čelebići Appeal Judgement para 352 Vasiljević Appeal Judgement para 102 Blaškić Appeal Judgement paras 45-46 48 Kvočka et al Appeal Judgement para 89 Simić et al Appeal Judgement para 85 Blagojević and Jokić Appeal Judgement para 127 557 Brđanin Appeal Judgement paras 273 277 558 Blaškić Appeal Judgement para 48 Simić et al Appeal Judgement para 85 Blagojević and Jokić Appeal Judgement para 127 Case No IT-04-84-T 75 3 April 2008 supply practical assistance 559 The aider and abettor must have knowledge that his or her acts assist in the commission of the crime of the principal perpetrator 560 The aider and abettor must also be aware of the principal perpetrator’s criminal acts although not their legal characterization and his or her criminal state of mind 561 The aider and abettor does not however need to know either the precise crime that was intended or the one that was actually committed it is sufficient that he or she be aware that one of a number of crimes will probably be committed if one of those crimes is in fact committed 562 559 Blagojević and Jokić Trial Judgement para 731 Vasiljević Appeal Judgement para 102 Blaškić Appeal Judgement paras 45-46 Simić et al Appeal Judgement para 86 Brđanin Appeal Judgement paras 484 488 Blagojević and Jokić Appeal Judgement para 127 561 Aleksovski Appeal Judgement para 162 Simić et al Appeal Judgement para 86 Brđanin Appeal Judgement paras 484 487-488 562 Blaškić Appeal Judgement para 50 Simić et al Appeal Judgement para 86 560 Case No IT-04-84-T 76 3 April 2008 6 Findings on counts 6 1 General findings concerning the Radonjić Radoniq canal area 146 In sections 6 2 through 6 19 below the Trial Chamber will deal with 30 alleged murders for which the most prominent common factor is that the victims were found in an area stretching from the Radonjić Radoniq canal to Lake Radonjić Radoniq in Dečani Deçan municipality 563 The Radonjić Radoniq canal and lake water system consisted of a water intake point along the course of the Bistrica Bistrice river at Gornji Luka Lluka e Epёrme in Dečani Deçan municipality a seven-kilometre concrete canal ending in a natural ravine which conducted the water to a reservoir lake the lake itself and a water-treatment and distribution plant at the southern end of the lake 564 The alleged murders are charged under Counts 8 10 14 16 18 20 22 and 32 in the Indictment The Prosecution alleges that all the victims under these counts were killed while “in KLA custody” 565 The Trial Chamber understands this to mean that according to the Prosecution the KLA was involved in the killing as opposed to the involvement of any other organization or entity and as opposed to killings carried out by nonmembers of the KLA or KLA soldiers acting in a purely private capacity and not under direction or in obedience to the policies of the KLA 147 The evidence before the Trial Chamber with regard to perpetrators and circumstances of many of the alleged murders is vague inconclusive or simply nonexistent Often the evidence stops where the person disappears under suspicious circumstances and resumes where the bodily remains are found with signs of a violent death and are identified What has happened to the individual in the meantime usually remains unclear However the Trial Chamber has received extensive evidence for a small number of the alleged murders The question the Trial Chamber is therefore faced with is whether this extensive evidence only allows for conclusions in relation to the alleged murders for which it was specifically presented or also for a conclusion that the other alleged murders were committed while the victim was in KLA custody 563 The two bodies found near Dašinovac Dashinoc will be dealt with in section 6 7 below P367 Faton Sefa witness statement 29 May 2007 paras 11 33-35 80-81 Faton Sefa T 5999 The Trial Chamber will refer to the two main areas where bodies were found as “at the Radonjić Radoniq canal” and “in the ravine downstream from the Radonjić Radoniq canal” The Trial Chamber uses the term “in the Radonjić Radoniq canal area” to cover both areas where bodies were found 565 This expression is mentioned in the Indictment for all the alleged murders with the exception of the alleged murder of Sanije Balaj under Count 22 564 Case No IT-04-84-T 77 3 April 2008 148 The control the KLA exercised of the area around the Radonjić Radoniq canal and Lake Radonjić Radoniq was considerable but not in every respect complete during the indictment period see also section 3 2 1 above 566 There were Serbian forces stationed on Suka Babaloć Baballoq Suka Biteš Bitesh and Suka Crmljane Cermjan for at least part of this period 567 There were also Serbian forces stationed at the southern end of Lake Radonjić Radoniq 568 Serbian forces were able to enter the area on a temporary basis only in order to conduct military operations 569 Witness 69 a Serbian police officer stationed in Đakovica Gjakovë MUP during the indictment period 570 testified that the police informed him that until mid-1998 police patrols could access the north of Lake Radonjić Radoniq either on the road through Ratiš Ratishë or on the road through Crmljane Cermjan both in Đakovica Gjakovë municipality but rarely went to the area around the lake and could do so only if the area was secured by the police or military 571 Witness 69 also learned from the police that between mid-1998 and September 1998 the police entered only when conducting a police operation the KLAcontrolled area approximately between Požar Pozhare in Dečani Deçan municipality Jablanica Jabllanicë and Dujak Dujakë both in Đakovica Gjakovë municipality 572 149 The Trial Chamber has heard extensive evidence about how many bodies were discovered by Serbian police in the Radonjić Radoniq canal area in September 1998 about the exhumation of these bodies and about the subsequent identification of the victims On 3 September 1998 MUP forces arrested two KLA members Bekim Kalimashi and Zenel Alija 573 These men were taken to the Đakovica Gjakovë police station where they were interrogated 574 Several witnesses testified that Kalimashi and 566 P854 Radovan Zlatković witness statement 25 June 2007 paras 28-36 Radovan Zlatković T 6925-6939 Shemsedin Cekaj T 4486 4488-4489 Žarko Bajčetić T 6533-6534 567 Witness 21 T 2716 2789-2790 2792 2794 2804-2807 2814-2815 568 P1017 Dragan Živanović witness statement 9 August 2007 para 8 Dragan Živanović T 93949396 D83 Order by General Nebojša Pavković 18 August 1998 p 2 569 Achilleas Pappas T 4284-4286 4288-4290 P309 Daily Summary Report to HQ ECMM 13 August 1998 570 P1231 Witness 69 witness statement 20 June 2007 paras 1-2 Witness 69 T 9832-9833 9846 9848 9892 571 P1231 Witness 69 witness statement 20 June 2007 paras 30-31 Witness 69 T 9846 9876-9879 9904 572 P1231 Witness 69 witness statement 20 June 2007 paras 31-32 Witness 69 T 9846 9864-9865 9878-9880 P1179 Map marked by Witness 69 573 P854 Radovan Zlatković witness statement 25 June 2007 para 47 Radovan Zlatković T 6940 7012 7014-7016 7018 P380 Nebojša Avramović witness statement 4 June 2007 paras 23 25 Nebojša Avramović T 6625 P388 MUP-PJP Official note on the arrest of KLA members P395 Decision on the detention of Zenel Alija 6 September 1998 574 P854 Radovan Zlatković witness statement 25 June 2007 paras 50-52 Radovan Zlatković T 6940-6941 6955-6956 P380 Nebojša Avramović witness statement 4 June 2007 paras 28 30 P371 Case No IT-04-84-T 78 3 April 2008 Alija gave details about bodies to be found in the Radonjić Radoniq canal area 575 On 8 and 9 September 1998 MUP officers as well as RDB officials together with Bekim Kalimashi travelled to the end of the Radonjić Radoniq canal 576 There Kalimashi pointed out where the bodies could be found 577 150 The fact that there were bodies at the Radonjić Radoniq canal appears to have been known to both the KLA and to Serbian authorities prior to September 1998 Witness 17 testified that on 20 August 1998 68 village representatives attended a meeting chaired by Tahir Zemaj in the canteen of the Papračane Prapacan headquarters 578 During the meeting Ramush Haradinaj stated that he was unable to lead the forces in the Dukagjin area after having lost a number of villages during Serbian offensives in August and it was agreed that Tahir Zemaj should be the commander of the Operational Staff of the Plain of Dukagjin and Haradinaj his deputy 579 At the meeting one person spoke about misconduct that was being committed by certain people and because of this “the fish in Lake Radoniq were getting fat on human flesh” 580 The person asked for these people “to be disciplined and well-behaved and to stop committing these crimes” 581 Witness 17 did not remember whether anyone at the meeting reacted to the allegation 582 The witness remembered that Idriz Balaj came to the meeting but thought that he remained outside as security 583 The information that there were human remains at the Radonjić Radoniq canal also reached the Serbian intelligence service 584 The fact that Serbian authorities had such knowledge prior to Kalimashi and Alija informing them about the bodies and may have manipulated their statements is not material to the determination that the Trial Chamber needs to make in Bogdan Tomaš witness statement 24 May 2007 paras 22-23 Bogdan Tomaš T 6134-6135 P1231 Witness 69 witness statement 20 June 2007 paras 33-34 Witness 69 T 9846 9888 575 P854 Radovan Zlatković witness statement 25 June 2007 paras 53 55 P380 Nebojša Avramović witness statement 4 June 2007 para 31 P371 Bogdan Tomaš witness statement 24 May 2007 paras 24-25 P1231 Witness 69 witness statement 20 June 2007 paras 34 59 65 576 P854 Radovan Zlatković witness statement 25 June 2007 para 64-65 68-73 Radovan Zlatković T 6972-6973 6975 P380 Nebojša Avramović witness statement 4 June 2007 paras 43-45 Nebojša Avramović T 6649-6658 P371 Bogdan Tomaš witness statement 24 May 2007 paras 29-34 Bogdan Tomaš T 6227 6232 P377 Žarko Bajčetić witness statement 24 May 2007 paras 32 41-43 48-51 91 Žarko Bajčetić T 6414 6455-6456 577 P854 Radovan Zlatković witness statement 25 June 2007 paras 74 80 Radovan Zlatković T 6974 578 P885 Witness 17 witness statement 14 August 2007 para 100 Witness 17 T 7592-7593 579 P885 Witness 17 witness statement 14 August 2007 paras 100 107 Witness 17 T 7592 7600 D161 Communiqué signed by Tahir Zemaj 22 August 1998 580 P885 Witness 17 witness statement 14 August 2007 para 101 Witness 17 T 7593-7597 581 P885 Witness 17 witness statement 14 August 2007 para 101 Witness 17 T 7597 582 Witness 17 T 7750 583 P885 Witness 17 witness statement 14 August 2007 para 106 Case No IT-04-84-T 79 3 April 2008 this section The Trial Chamber does not accept the implied suggestion that the bodies in the Radonjić Radoniq canal area were “planted” there by the Serbian police or military There is no reliable evidence that supports a scenario wherein one or more of the bodily remains covered by the counts in the Indictment were brought to the area where they were found after the Serbian forces had restored the control necessary for the on-site investigations in early September 151 The investigating judge of the Peć Pejë District Court Radomir Gojković was informed about the bodies on 9 September 1998 585 He went to the Radonjić Radoniq canal on the same day and initiated an investigation that was conducted over the following days 586 His investigation team consisted of himself Deputy Public Prosecutor Zoran Babić and a number of MUP members including Nebojša Avramović and Radovan Zlatković 587 Gojković requested that representatives of the Forensic Institute of the Medical Faculty in Belgrade be sent to Kosovo Kosova to conduct the exhumations of the discovered bodies 588 This team arrived at the site on 11 September 1998 and worked there until 16 September 1998 by which time the exhumation of the bodies had been completed 589 The team included Professor Dušan Dunjić who led the forensic team and Professor Branimir Aleksandrić 590 On 12 September 1998 the forensic team split in two one team including Professor Aleksandrić which worked with recovering the bodies at the canal and the other which included Professor Dušan Dunjić which conducted the forensic examination of the remains 591 152 The forensic team exhumed 17 bodies at the west bank of the canal 592 The investigation and forensic teams found one overturned car lying in the ravine 584 D153 Official Note 20 August 1998 P1193 Radomir Gojković witness statement 23 October 2007 paras 15 21 P380 Nebojša Avramović witness statement 4 June 2007 para 68 Nebojša Avramović T 6721 586 P1193 Radomir Gojković witness statement 23 October 2007 paras 24 26 32 36-37 43 58 60 62 66 68 587 P1193 Radomir Gojković witness statement 23 October 2007 para 35 588 P1193 Radomir Gojković witness statement 23 October 2007 para 33 P409 Request sent by Radomir Gojković 9 September 1998 589 P1193 Radomir Gojković witness statement 23 October 2007 paras 44 66 70 P380 Nebojša Avramović witness statement 4 June 2007 para 110 Nebojša Avramović T 6607 P411 Letter from Radomir Gojković 17 September 1998 P412 Report of the forensic team 16 September 1998 590 P618 Dušan Dunjić witness statement 8 June 2007 paras 23 40 151 P1260 Branimir Aleksandrić witness statement 26 June 2007 p 1 paras 4 9 Branimir Aleksandrić T 6737 P1113 CV of Branimir Aleksandrić p 1 591 P1193 Radomir Gojković witness statement 23 October 2007 para 56 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 33 45 P618 Dušan Dunjić witness statement 8 June 2007 paras 72 91 592 P1260 Branimir Aleksandrić witness statement 26 June 2007 para 271 P1116 Aerial Photographs marked by Branimir Aleksandrić 585 Case No IT-04-84-T 80 3 April 2008 downstream of the end of the canal 593 When members of the forensics team tried to move the car the body of a woman fell out of the trunk see section 6 10 below 594 Many of the persons taking part in the investigation and exhumation of bodies observed bullet holes in the wall of the canal 595 The Trial Chamber accepts that persons found at that precise location may have been executed there However it is unable to draw broader conclusions especially with regard to bodies that were found at some distance from this location On 15 September 1998 Serbian police officer Slobodan Panić and other divers searched the canal and parts of the terrain around it and reported finding several more human bodies or body parts between 700 metres and 2500 metres from the end of the canal 596 A number of additional bodies were also found at the Ekonomija farm close by 597 There the investigation team also found barbed wire with attached to it what seemed to be human hair and electric cables which were tied to the metal cattle stalls 598 When a body was located the forensic team labelled it with a number and an indication of the area in which it was found “R” for Rznić Irzniq that is the Radonjić Radoniq canal and “Re” for Ekonomija Farm 599 593 P1193 Radomir Gojković witness statement 23 October 2007 para 27 Radomir Gojković T 10112 P854 Radovan Zlatković witness statement 25 June 2007 para 88 P377 Žarko Bajčetić witness statement 24 May 2007 paras 62-63 Žarko Bajčetić T 6526-6527 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 31 151 153-156 212 Branimir Aleksandrić T 9605 594 P854 Radovan Zlatković witness statement 25 June 2007 para 88 P380 Nebojša Avramović witness statement 4 June 2007 paras 63-64 Nebojša Avramović T 6621-6622 6663-6665 595 P854 Radovan Zlatković witness statement 25 June 2007 para 76 P380 Nebojša Avramović witness statement 4 June 2007 para 59 P377 Žarko Bajčetić witness statement 24 May 2007 para 59 P270 Achilleas Pappas witness statement 9 May 2007 para 21 Achilleas Pappas T 4151-4158 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 17-18 22-23 62 67 79 Branimir Aleksandrić T 6739 9570-9571 P452 Video of body recovery at canal 0 03’41”- 0 04’20” 0 23’38” 596 D131 Report by Slobodan Panić 16 September 1998 597 P1193 Radomir Gojković witness statement 23 October 2007 para 42 P380 Nebojša Avramović witness statement 4 June 2007 paras 91-95 181-182 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 54 56 Branimir Aleksandrić T 6741 P618 Dušan Dunjić witness statement 8 June 2007 paras 28 57 147-149 153-155 160 180 601 611-612 623 635 650 661 673 Dušan Dunjić T 7296-7297 7383-7385 P630 Record of exhumations 16 September 1998 p 1 P643 Summary of operation relating to Ekonomija Farm bodies pp 1-2 Agreed Facts 26 November 2007 No 138 598 P1193 Radomir Gojković witness statement 23 October 2007 para 42 P380 Nebojša Avramović witness statement 4 June 2007 para 97 Nebojša Avramović T 6619 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 55 57-58 Branimir Aleksandrić T 6743-6744 6750 P618 Dušan Dunjić witness statement 8 June 2007 para 59 P630 Record of exhumations 16 September 1998 p 1 599 P380 Nebojša Avramović witness statement 4 June 2007 para 117 P1231 Witness 69 witness statement 20 June 2007 para 41 Witness 69 T 9846 P1260 Branimir Aleksandrić witness statement 26 June 2007 para 40 Branimir Aleksandrić T 6741-6742 P1181 Report of the Đakovica Gjakovë MUP Crime Police Department pp 28-33 Case No IT-04-84-T 81 3 April 2008 153 A makeshift mortuary was set up at Hotel Paštrik in Đakovica Gjakovë where the human remains from the canal area were brought 600 The autopsy process started on 12 September 1998 and finished on 19 September 1998 601 Between 17 and 19 September 1998 relatives of persons who were missing were invited to Hotel Paštrik in order to try to identify the bodies by traditional means 602 The process involved relatives giving the forensic experts details of the missing persons after which they were shown clothing and personal belongings and were asked for photographs or medical documents relating to the missing person 603 If a relative recognized clothing or artefacts the experts would document evidence such as the victim’s age sex height weight previous injuries and dental and medical histories and try to match these with the bodies 604 If the information matched the body was deemed identified 605 Ten of the victims were positively identified through this process Velizar Stošić Ilira and Tush Frrokaj Ilija Antić Vukosava Vukošević Darinka Kovač Milovan Vlahović Isuf Hodža Agžija Seferaj and Hajrullah Gaši 606 Identified bodies were placed in coffins sealed and handed over to family members 607 The unidentified bodies were handed over to Milan Stanojević MUP chief in Đakovica Gjakovë on 19 September 1998 for burial in Piskote Piskotë cemetery in Đakovica Gjakovë 608 154 Barney Kelly was one of the Prosecution investigators tasked with ascertaining by the use of DNA analysis whether the identifications made by relatives were 600 P1193 Radomir Gojković witness statement 23 October 2007 paras 42 54-55 P380 Nebojša Avramović witness statement 4 June 2007 paras 122 133 P1231 Witness 69 witness statement 20 June 2007 paras 42 46 Witness 69 T 9846 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 41 62 P618 Dušan Dunjić witness statement 8 June 2007 paras 50 62 Dušan Dunjić T 7376 601 P380 Nebojša Avramović witness statement 4 June 2007 paras 136-137 P420 Autopsy Report of 12 September 1998 602 P1193 Radomir Gojković witness statement 23 October 2007 paras 71-72 Radomir Gojković T 10067 P380 Nebojša Avramović witness statement 4 June 2007 para 137 603 P1193 Radomir Gojković witness statement 23 October 2007 para 73 604 P1193 Radomir Gojković witness statement 23 October 2007 para 73 605 P1193 Radomir Gojković witness statement 23 October 2007 para 73 606 P1193 Radomir Gojković witness statement 23 October 2007 paras 78-81 P380 Nebojša Avramović witness statement 4 June 2007 para 170 P368 Barney Kelly witness statement 21 June 2007 para 5 Barney Kelly T 6085-6086 P423 Identification report of 19 September 1998 p 1 P1198 Documents relating to the Lake Radonjić Radoniq investigation pp 15-17 607 P1193 Radomir Gojković witness statement 23 October 2007 paras 75-77 P380 Nebojša Avramović witness statement 4 June 2007 para 169 P618 Dušan Dunjić witness statement 8 June 2007 para 133 Dušan Dunjić T 6850 7377 608 P1193 Radomir Gojković witness statement 23 October 2007 paras 83-86 P423 Identification report of 19 September 1998 P380 Nebojša Avramović witness statement 4 June 2007 paras 142168 P618 Dušan Dunjić witness statement 8 June 2007 para 136 Dušan Dunjić T 6850-6851 7377 P423 Identification report of 19 September 1998 P641 Summary report for Judge Gojković p 2 Case No IT-04-84-T 82 3 April 2008 accurate 609 In carrying out this task Kelly asked the victims’ relatives to assist in locating the graves of their relatives and in providing blood samples required to perform the DNA analysis 610 Out of the ten sets of remains found at the Lake Radonjić Radoniq site and identified through traditional means only the identities of Velizar Stošić labelled as “R-8” Ilira Frrokaj “R-18” and Ilija Antić “R-20” were confirmed by DNA analysis 611 In respect of some of the other bodies presented for DNA identification no match could be established with the identification by traditional means 612 155 On the basis of the testimony given by Milutin Višnjić a ballistics expert and a report he prepared on 2 December 1998 613 the Prosecution contended that the same weapon that was used at the Radonjić Radoniq canal area by the KLA to “murder its opponents” was previously used by the KLA against the MUP in Pljančor Plançar on 7 March 1998 and during the clash at the Haradinaj family compound on 24 March 1998 614 In his report Višnjić compared cartridges found in the Radonjić Radoniq canal area in early September 1998 with cartridges found in Pljančor Plançar on 7 March 1998 and at the Haradinaj compound on 24 March 1998 615 On the basis of comparative microscopic examination of significant individual features on the cartridges Višnjić concluded that 14 of the cartridges found in the Radonjić Radoniq canal area were identical to 29 cartridges found in Pljančor Plançar and 29 cartridges found at the Haradinaj compound 616 156 The Trial Chamber found Milutin Višnjić to be a credible witness During the NATO bombing in 1999 the forensic department was hit and the original material examined by Višnjić and his personal notes of that examination were lost and therefore 609 P368 Barney Kelly witness statement 21 June 2007 para 8 Barney Kelly T 6086 P368 Barney Kelly witness statement 21 June 2007 paras 7-10 34 36 611 Barney Kelly T 6087-6090 612 Subsequent DNA identifications of the victims found in the Radonjić Radoniq canal area will be discussed in the relevant sections below 613 See the testimony of Milutin Višnjić T 8317-8357 and P916 Ballistics report by Milutin Višnjić 614 Prosecution Final Brief para 676 615 P916 Ballistics report by Milutin Višnjić Višnjić’s report refers to Gramočelj Gramaqel as the place where cartridges were found on 24 March 1998 The Trial Chamber understands this to be a reference to the Haradinaj family compound which is located between the villages of Glođane Gllogjan and Gramočelj Gramaqel in Dečani Deçan municipality See also P446 MUP Documentation referring to the incident of 24 March 1998 in Glođane Gllogjan P448 Offical note by Nebojša Avramović 4 December 1998 which indicate where the cartridges were found 616 P916 Ballistics report by Milutin Višnjić See also P446 MUP Documentation referring to the incident of 24 March 1998 in Glođane Gllogjan and P448 Offical note by Nebojša Avramović 4 December 1998 610 Case No IT-04-84-T 83 3 April 2008 unavailable to Defence experts 617 It was furthermore impossible to verify the accuracy of Višnjić’s findings because no photographic records of his examination were made 618 Additionally Višnjić did not record in his report the details of the patterns he observed that led him to conclude that the cartridges matched 619 His report states where the respective series of cartridges he examined had been found a brief description of the method he used and his conclusions based on the number of matches and where the cartridges were found 620 Upon examination by the Trial Chamber regarding the number of cartridges that Višnjić received from the various locations it became apparent that not all of the cartridges were accounted for Višnjić was unable to adequately explain the discrepancy between the total number of cartridges received for comparison and the total number of examined cartridges 621 This and the impossibility of verifying Višnjić’s conclusions led the Trial Chamber to decide that it could not rely on this evidence Even if the Trial Chamber would have been able to conclude that the weapon fired at the three locations was indeed the same this would still not have answered important questions such as who had fired that weapon when it was fired in the Radonjić Radoniq canal area and what the chain of custody of that weapon had been 157 As will be discussed in detail in sections 6 5 6 6 6 8 through 6 12 and 6 16 below the evidence presented to the Trial Chamber regarding the 30 alleged murders varies in the level of detail The evidence with regard to the identity of the perpetrators and circumstances under which death occurred is for many of them non-existent The Trial Chamber will in the mentioned sections consider evidence regarding the identity of the victim whether the victim was abducted or just reported as missing if abducted by whom he or she was abducted or to which group the abductor or abductors were affiliated if the victim was reported missing how he or she may have ended up in the hands of those who committed the killing or disposed of the body the whereabouts of the abducted or missing person between his or her disappearance and the time he or she died the cause of death and whether intentionally killed by whom the victim was killed or to which group those who killed the victim were affiliated and how the body ended up in the Radonjić Radoniq canal area where it ultimately was found 617 Milutin Višnjić T 8331-8332 Milutin Višnjić T 8351 619 Milutin Višnjić T 8346-8347 8349 620 P916 Ballistics report by Milutin Višnjić 621 T 8338-8341 See also P445 Request for a ballistics examination 21 September 1998 and P916 Ballistics report by Milutin Višnjić 618 Case No IT-04-84-T 84 3 April 2008 158 The Trial Chamber did not receive complete evidence covering the issues described for any of the victims found in the Radonjić Radoniq canal area In relation to most of the victims the Trial Chamber received evidence merely about where and when they were last seen alive and about them being found dead in the Radonjić Radoniq canal area The victims were last seen alive at different locations in three municipalities over a period of five months Many of them were last seen alive in areas which were under KLA control at the time As stated above the Radonjić Radoniq canal area where the bodies were found was generally under KLA control throughout the indictment period This raises the likelihood that the KLA abducted the victims and either killed them and deposited their bodies in the Radonjić Radoniq canal area or took the victims to this area and executed them there 159 The Trial Chamber has received extensive evidence in particular about the perpetrators and the circumstances surrounding the death of only one of the alleged murders namely that of Sanije Balaj The case of this victim demonstrates the level of caution with which the Trial Chamber should proceed when considering inferences as to responsibility on the mere basis of the disappearance or abduction of a person and the discovery of the body of that person in the Radonjić Radoniq canal area As the Trial Chamber will discuss in detail in section 6 12 12 below a reasonable alternative to KLA involvement in the alleged murder is that Sanije Balaj was targeted by people who were not acting under the direction of or in pursuit of the policies of the KLA and that she therefore was not killed in KLA custody 160 The Trial Chamber has also received some evidence regarding the abduction of some other victims and about their subsequent death In one such case namely the alleged murder of Nurije and Istref Krasniqi to be discussed in section 6 12 6 below the Trial Chamber cannot ignore the reasonable alternative of the alleged murder having being committed in the context of a family dispute or private revenge 161 If the Trial Chamber would not have received the more detailed evidence in relation to the alleged murder of Sanije Balaj this incident would likely have impressed upon the Trial Chamber that the murder had been committed “in KLA custody” as defined above All the elements appear to be present an arrest by KLA soldiers the inclusion of Sanije Balaj on what seems to have been a wanted list used by those soldiers transportation to and interrogation in a KLA headquarters retrieval of the Case No IT-04-84-T 85 3 April 2008 bodily remains in the Radonjić Radoniq canal area and forensic medical evidence of a violent death At first sight this would make it among the strongest cases for which the Prosecution asks the Trial Chamber to draw the inference about murders committed “in KLA custody” However in this case where detailed evidence was led about the circumstances under which Sanije Balaj met her death the apparent conclusion would have been the wrong conclusion As stated above the Trial Chamber has received less evidence for most of the alleged murders The evidence the Trial Chamber has received with regard to the alleged murder of Sanije Balaj calls for a most cautious approach It shows how deceptive a first impression based on an incomplete story can be 162 In conclusion there are only a few alleged murders for which the evidence allows identification of a perpetrator or perpetrators Even for those few the evidence does not consistently support KLA involvement as alleged Therefore the evidence does not allow the Trial Chamber to draw a general conclusion with regard to victims found in the Radonjić Radoniq canal area as to who committed the killing and with which group if any the perpetrator was affiliated In this respect the Trial Chamber cannot rely significantly on them being found at this location rather than on specific evidence in relation to their disappearance and death This does not however prevent the Trial Chamber from concluding on a count-by-count basis that a given victim was killed “in KLA custody” The Trial Chamber will now proceed to examine each count 6 2 Cruel treatment torture and outrages upon the personal dignity of Witness 38 and the witness’s family Count 2 163 All three Accused are charged as participants in a joint criminal enterprise with cruel treatment torture and outrages upon the personal dignity of Witness 38 and the witness’s family in violation of the laws or customs of war In the alternative Ramush Haradinaj is charged with the ordering of instigating or aiding and abetting the commission of the crimes The Trial Chamber has heard relevant evidence from Witness 38 Witness 58 and Dragan Živanović 164 Witness 38 a Roma from Junik in Dečani Deçan municipality 622 testified that one night in the beginning of May 1998 she saw people distributing weapons to a group of men on the road in her village 623 The witness recognized two of these men as 622 623 Witness 38 T 704 750 Witness 38 T 705-707 Case No IT-04-84-T 86 3 April 2008 being Albanian inhabitants of Junik 624 The following day Qemalj Shalja who was armed and wearing a green camouflage uniform with KLA insignia gave a speech in Junik 625 Witness 38 saw Roma families leaving Junik after this speech 626 According to the witness they were leaving out of fear 627 At that time no members of other ethnic groups left the village 628 The witness remained in Junik but was afraid to return to the family apartment so he spent the night with neighbours 629 The witness testified that on that night or early the next morning fierce fighting broke out between the police and the KLA 630 The witness’s apartment and the neighbour’s house were targeted 631 Witness 38 and her family left their neighbour’s house and went back to the family apartment 632 Shortly thereafter four armed men two dressed in camouflage uniforms and wearing black balaclavas and two dressed in civilian clothes came to the apartment 633 The men in camouflage ordered the witness and the witness’s family to leave the apartment and join a convoy of civilians and they obeyed 634 The convoy left for Gacifer a neighbourhood near Junik 635 Some of the men dressed in civilian clothes who accompanied the convoy were carrying weapons 636 According to the witness KLA members prevented the witness and the witness’s family from leaving the convoy 637 The witness testified that men in camouflage uniforms and KLA insignia and men in civilian clothes carrying weapons were KLA members 638 165 At some point Witness 38 and her family were ordered by two KLA members to leave the convoy and go to Qazim Gaciferi’s house 639 Other Romas were ordered to leave the convoy as well 640 Witness 38 testified that she and her family arrived at Gaciferi’s house and from there were taken to a mill approximately half a kilometre 624 Witness 38 T 706 Witness 38 T 709 711 626 Witness 38 T 714 627 Witness 38 T 715 628 Witness 38 T 715 629 Witness 38 T 715 718 630 Witness 38 T 718 631 Witness 38 T 718 802 632 Witness 38 T 719 633 Witness 38 T 719-720 634 Witness 38 T 720-722 725 802-803 635 Witness 38 T 725 758 636 Witness 38 T 725 834 637 Witness 38 T 725 638 Witness 38 T 833-834 639 Witness 38 T 726-727 640 Witness 38 T 727 625 Case No IT-04-84-T 87 3 April 2008 from the house 641 One of the KLA members Aslan Luluni told the witness and the witness’s father to undress forced the witness to eat a bank book and tore half of the father’s moustache off his face 642 The witness’s father was allowed to put his clothes back on after he had been searched but the witness remained naked 643 Luluni tied the witness’s hands and the witness’s father’s hands with barbed wire 644 Then a black Suzuki vehicle arrived at the mill 645 The witness identified two of the men riding in the vehicle as Muharem Knushi and Ramush Haradinaj the latter wearing a cap and a camouflage uniform with two badges in the form of a V and carrying a two-way radio 646 Witness 38 sat on the ground some 20-30 metres away from the two men and saw the man she later identified as Ramush Haradinaj from one side 647 There were bushes between the witness and the men 648 The witness did not recognize Haradinaj at the time but when she saw Haradinaj some three to four months later on television the witness realized that it had been him 649 The broadcasts referred to Ramush Haradinaj as a commander 650 Witness 38 testified that upon the arrival of the vehicle the maltreatment of the witness and the witness’s father stopped 651 The men in the vehicle and Aslan Luluni conversed among themselves and the witness heard either of the two men in the car being addressed as “commander” 652 Other than that the witness could not hear anything the men were saying 653 The vehicle remained at the mill for 10 to 15 minutes 654 During this time the witness and the witness’s father were not mistreated 655 The witness conceded the possibility that the person whom she later identified as Ramush Haradinaj did not notice her 656 When the vehicle left the mistreatment recommenced 657 After approximately two hours Witness 38 and her family rejoined the convoy which was heading in the direction of the Albanian 641 Witness 38 T 729 819 Witness 38 T 731 792 643 Witness 38 T 731-732 739 792-795 644 Witness 38 T 731-733 645 Witness 38 T 729 731 785 789 830-831 646 Witness 38 T 733-734 647 Witness 38 T 734 755-758 822 648 Witness 38 T 756-757 649 Witness 38 T 734 736-737 752 760 650 Witness 38 T 823 651 Witness 38 T 736 740 754 652 Witness 38 T 733 749 755 787 821 823 653 Witness 38 T 754-755 820-821 654 Witness 38 T 756 655 Witness 38 T 740 756 656 Witness 38 T 757 657 Witness 38 T 740 748 754 825 642 Case No IT-04-84-T 88 3 April 2008 border 658 According to the witness she was still naked and her hands and those of her father were still tied 659 At some point an escorting KLA member dressed in civilian clothes separated the witness and the witness’s family from the convoy 660 The KLA member kept them in the woods overnight 661 Unidentified men tried to rape the witness’s sister but the KLA member prevented them from doing so 662 According to the witness she was still naked and tied at this time but was allowed to dress on the second night 663 However in her statement to the MUP the witness had said that she was allowed to dress after half an hour 664 The witness and the witness’s family were ordered by KLA members to go to Aslan Djoci’s house in Jasić Jasiq which she described as the KLA headquarters 665 There the witness and her family were told to stand in line at the edge of a hill or ravine and a soldier ordered a boy to execute them 666 At that point someone intervened and in the confusion the witness and her family managed to escape and make their way to Batusha Batusa in Đakovica Gjakovë municipality where they were offered assistance by VJ soldiers 667 166 Witness 58 a Roma from the village of Ponoševac Ponoshec in Đakovica Gjakovë municipality 668 testified that in the beginning of May 1998 KLA soldiers told her and her family to leave their home whereupon the witness moved to Witness 38’s house in Junik in Dečani Deçan municipality 669 One morning two or three weeks after Witness 58’s arrival at Witness 38’s house firing began outside with some bullets hitting the house 670 Armed men in KLA uniforms with red badges on their arms came into the house and told those inside in Albanian that Witness 38 had killed people and that they had to leave 671 Witness 58 took her children and they left for a place called Tofaj where they were stopped at a mill 672 There they were encircled by armed soldiers in green KLA uniforms including Aslan Luluni whom the witness knew 658 Witness 38 T 740-741 793 Witness 38 T 740-741 660 Witness 38 T 741-742 661 Witness 38 T 742 662 Witness 38 T 742 663 Witness 38 T 742-743 664 D1 Witness 38 Statement to MUP page 2 665 Witness 38 T 743 666 Witness 38 T 746-747 667 Witness 38 T 747 668 Witness 58 T 869 669 Witness 58 T 870-871 939 670 Witness 58 T 871-872 671 Witness 58 T 872 876-877 931 672 Witness 58 T 881-882 931-932 659 Case No IT-04-84-T 89 3 April 2008 from before 673 Luluni told them that he had to search them for weapons and that they should all be killed since Witness 38 had worked with the Serbs 674 Witness 58 testified that Luluni then started to mistreat her sister-in-law and her father-in-law 675 The witness could not remember what Luluni did to her father-in-law but testified that he searched Witness 58’s sister-in-law’s bag and then tried to rape her 676 He was prevented from doing so by Witness 58’s implorations 677 Witness 58 did not notice whether Witness 38 or other relatives were naked 678 Witness 58 and her family then managed to get away from the mill and headed towards the Jasić Jasiq Mountain 679 The following day Witness 58 and her family arrived in Djoci Gjocaj 680 Both at the Jasić Jasiq Mountain and in Djoci Gjocaj there were a lot of KLA soldiers 681 Several soldiers ordered Witness 58 and her family to line up and then pointed their guns at them 682 The soldiers were about to shoot when someone intervened and prevented this 683 Witness 58 and the witness’s family then fled with the soldiers shooting after them 684 They arrived in Batusha Batusa in Đakovica Gjakovë municipality where they reached Serbian forces who took them to the town of Đakovica Gjakovë 685 167 Dragan Živanović testified that in the beginning of June 1998 Witness 38 a Roma civilian approached his men and told one of his officers that she and her family had been arrested by the KLA 686 Živanović did not remember if she had mentioned any mistreatment at the hands of her captors but he had noticed some bruises on her face 687 168 Based on the evidence the Trial Chamber concludes that sometime in May 1998 KLA soldiers forced Witness 38 and her relatives to join a convoy of people At some point they were taken from the convoy and brought to a mill in Junik She and her father were forced to undress She further testified that she was kept naked for a considerable amount of time and that she was forced to re-join the convoy while still 673 Witness 58 T 882-883 898-899 Witness 58 T 884 899 675 Witness 58 T 883 906 676 Witness 58 T 883-884 901 907 677 Witness 58 T 903-904 678 Witness 58 T 933-936 679 Witness 58 T 908 933 680 Witness 58 T 909 681 Witness 58 T 908-909 912 682 Witness 58 T 912 917-921 683 Witness 58 T 909 911 916-921 936-938 684 Witness 58 T 920 938 685 Witness 58 T 923 939 686 P1017 Dragan Živanović witness statement 9 August 2007 paras 50-51 687 P1017 Dragan Živanović witness statement 9 August 2007 para 58 674 Case No IT-04-84-T 90 3 April 2008 naked Witness 38 also testified that the soldier forced her to eat a bank book tore off half of her father’s moustache and tied both their hands with barbed wire Witness 38 testified that a vehicle with at least two men arrived at the location where she was held and that she saw the men when she was sitting on the ground some 20-30 metres away There were according to Witness 38 bushes between herself and the men Witness 38 heard the word “commander” but was not sure to whom it was addressed Three to four months later the witness recognized one of the men as Ramush Haradinaj when she saw him on television The broadcast referred to Ramush Haradinaj as a commander 169 Although the Trial Chamber is convinced that Witness 38 and Witness 58 were taken from their home it considers that the testimonies of Witness 38 and 58 lack coherence and specificity with regard to important details In a statement Witness 38 gave to the Serbian MUP in 2002 she stated that she was allowed to dress after half an hour whereas in Court she testified that she was naked for about two days Witness 58 confirmed that Witness 38 and her father were mistreated by the KLA soldier but did not provide any details as to how they were ill-treated Moreover although Witness 58 was with Witness 38 for most of the time she testified that she did not notice that Witness 38 was naked Witness 58 also did not corroborate Witness 38’s testimony on the arrival of a vehicle with two men The Trial Chamber further considers that absent any corroborating evidence it is possible that Witness 38’s delayed identification of Ramush Haradinaj was influenced by the suggestion of the television broadcast 170 Due to the significant inconsistencies and lack of corroboration on important details the Trial Chamber is not convinced beyond a reasonable doubt that Witness 38 or her family were subjected to serious mental or physical suffering or injury or to an act constituting a serious attack on human dignity Likewise the Trial Chamber cannot conclude that Witness 38 or her family were subjected to acts causing severe humiliation or degradation The Trial Chamber further finds that the evidence before it is insufficient to conclude that Ramush Haradinaj was at the location where the alleged mistreatment of Witness 38 and her father took place That a witness appeared to have difficulties in giving an adequate account of what he or she has experienced does not immediately lead the Trial Chamber to find the witness’s testimony unreliable Although the Trial Chamber gained the impression that both Witness 38 and Witness 58 had such difficulties it considers their testimonies unreliable primarily on the basis of the objective incoherence inconsistency and lack of specificity on important details Case No IT-04-84-T 91 3 April 2008 For these reasons the Trial Chamber finds that all three Accused should be acquitted of this count 6 3 Cruel treatment and torture of Dragoslav Stojanović and others Count 4 171 All three Accused are charged as participants in a joint criminal enterprise with the cruel treatment and torture of Dragoslav Stojanović and others in violation of the laws or customs of war In the alternative Ramush Haradinaj is charged with the commission of or aiding and abetting the commission of the crimes The Trial Chamber has heard relevant evidence from Dragoslav Stojanović Mijat Stojanović and Veselin Stijović 172 Dragoslav Stojanović a Serb from the village of Dubrava Dubravë in Dečani Deçan municipality 688 testified that his house was about 150 metres from the family house of Ramush Haradinaj and that he knew Ramush Haradinaj from childhood 689 Dragoslav Stojanović had not seen Ramush Haradinaj for about ten years prior to April 1998 690 In the morning of 18 April 1998 the witness along with his brother Mijat Stojanović and cousin Veselin Stijović went to check on the witness’s house and cattle 691 The Trial Chamber received evidence that Serbian police had taken positions on or adjacent to the yard of the Stojanović’s house on 24 March during the attack on the Haradinaj family compound that was launched after the policeman Otović had been killed At the time the brothers were living as refugees in Dečani Deçan 692 At a certain point shots were fired at them from the Haradinaj house and armed men began to approach the house from all sides 693 The men shouted in Albanian at the men inside to leave the house and surrender 694 Grenades were thrown on the roof and a shot came through the window 695 When the witness opened the door Zecir Nimonaj Daut Haradinaj and 20 to 30 others most dressed in camouflage came in and began searching the house kicking and beating the three men with rifle-butts 696 The mistreatment of the witness resulted in the rupturing of his pancreas in two places and a 688 Dragoslav Stojanović T 1844-1845 1940 Dragoslav Stojanović T 1846-1847 1853 1915 690 Dragoslav Stojanović T 1915 691 Dragoslav Stojanović T 1846 1863-1864 692 Dragoslav Stojanović T 1858-1861 1865 693 Dragoslav Stojanović T 1864 694 Dragoslav Stojanović T 1865 1868 695 Dragoslav Stojanović T 1865 696 Dragoslav Stojanović T 1865-1867 689 Case No IT-04-84-T 92 3 April 2008 number of other injuries 697 After a while Nasim Haradinaj arrived and told the men to stop beating the witness and to take the three men to the headquarters 698 While being brought there armed local people along the way were beating them and firing shots past their heads 699 The three men were taken to the house of Smajl Haradinaj 700 Once inside Daut Haradinaj Zecir Nimonaj and Besnik Haradinaj took the witness to a small room on the top floor to be interrogated while Mijat Stojanović and Veselin Stijović were left in the corridor outside the room 701 The men were armed and wearing black clothes and caps bearing an insignia with a two headed eagle and “Kosovo Liberation Army” written in yellow letters 702 Besnik Haradinaj interrogated the witness about the police why he was in Dubrava Dubravë without a permit from them and why he had not joined “them” 703 At a certain point after taking a sip from a cup of coffee the witness started to choke and was thrown out in the corridor where he passed out 704 The witness regained consciousness after Mijat Stojanović and Veselin Stijović revived him although he did lose consciousness several times again after that 705 Soon Veselin Stijović and later Mijat Stojanović were taken into the room and the witness heard them shouting while they were being ill-treated 706 173 While Dragoslav Stojanović lay in the corridor a person the witness identified as Ramush Haradinaj came by with five or six soldiers 707 The witness believed that the man was a commander as the soldiers guarding him greeted him with their right fists raised up to their foreheads 708 He was wearing camouflage bottoms and a jumper and was carrying an automatic rifle in his right hand 709 He shoved the witness with his leg and said “hello neighbour do you recognize me” 710 The witness claimed not to recognize him and the man the witness identified as Ramush Haradinaj kicked him hard in the back and told him that he would recognize him soon 711 The witness had already 697 Dragoslav Stojanović T 1873 Dragoslav Stojanović T 1866 1904 699 Dragoslav Stojanović T 1866 1869 700 Dragoslav Stojanović T 1868 701 Dragoslav Stojanović T 1871-1872 1884 1918 702 Dragoslav Stojanović T 1873-1875 P9 KLA insignia 703 Dragoslav Stojanović T 1872-1873 1881-1882 704 Dragoslav Stojanović T 1872 1882-1883 705 Dragoslav Stojanović T 1885-1886 1916 1918 706 Dragoslav Stojanović T 1890 1918-1919 1928 707 Dragoslav Stojanović T 1886 708 Dragoslav Stojanović T 1886-1887 1920-1921 1935 709 Dragoslav Stojanović T 1886 710 Dragoslav Stojanović T 1886 1920 711 Dragoslav Stojanović T 1886 1888 1920 1932 698 Case No IT-04-84-T 93 3 April 2008 suffered serious internal injuries from beatings was in a lot of pain and had blood on his face 712 The man the witness identified as Ramush Haradinaj stayed in the corridor for at least five to six minutes 713 Dragoslav Stojanović stated that at least three other people also kicked him in the corridor and asked him if he recognized them 714 Dragoslav Stojanović was unable to recognize the men accompanying Ramush Haradinaj stating that this was because he had passed out multiple times and it hurt him just to look around 715 Soon after the man had left a person whom the others called “the Russian” came and started to severely kick and beat the witness with a metre long metal pipe telling the witness that what was being done to him was nothing compared to what was being done to their men by the police 716 The witness kept on going in and out of consciousness and at one point began vomiting blood 717 The witness and Veselin Stijović were eventually let out into the yard and washed the blood off their faces at the water pump 718 When they came back in the house Hilmi Haradinaj offered the witness something to drink 719 After about 20 minutes Nasim Haradinaj and another soldier took the witness Mijat Stojanović and Veselin Stijović to the witness’s house and told them to remove the straw around the fig tree so they could see if there were any weapons hidden there 720 Once this was done they blindfolded the three men and drove them to Baboloć Baballoq in Deçan Dečani municipality and stopped near a refugee camp 721 Here the three men were told by Nasim Haradinaj to walk straight ahead and if they looked back they would be shot 722 Mijat Stojanović went to get help for the witness and one of the refugees came with a car and took him to a health centre in Dečani Deçan 723 From there the witness was taken to the hospital in Peć Pejë and then in an ambulance to the hospital in Priština Prishtinë where he spent 28 days and underwent surgery for his injuries 724 712 Dragoslav Stojanović T 1889-1890 Dragoslav Stojanović T 1922 714 Dragoslav Stojanović T 1921 715 Dragoslav Stojanović T 1885-1886 1931-1933 716 Dragoslav Stojanović T 1891-1892 717 Dragoslav Stojanović T 1891-1892 718 Dragoslav Stojanović T 1893-1894 1935 719 Dragoslav Stojanović T 1894 1935 720 Dragoslav Stojanović T 1894-1895 721 Dragoslav Stojanović T 1895-1896 722 Dragoslav Stojanović T 1896 723 Dragoslav Stojanović T 1896 724 Dragoslav Stojanović T 1898-1900 1903 P33 Release sheet issued by Priština Prishtinë hospital 6 October 2005 P34 News footage dealing with the beating of Dragoslav Stojanović Mijat Stojanović and Veselin Stijović 713 Case No IT-04-84-T 94 3 April 2008 174 Mijat Stojanović from the village of Dubrava Dubravë in Dečani Deçan municipality 725 testified that he had gone to school with Ramush Haradinaj from the ages of 12 to 15 though Ramush Haradinaj was around four and a half years younger 726 The witness further testified that he left Dubrava Dubravë in 1982 to live in Belgrade returning permanently in 1995 727 While he would return home for annual leave between 1982 and 1995 he did not remember when he last saw Ramush Haradinaj prior to 18 April 1998 728 Mijat Stojanović also testified that on 18 April 1998 around 8 30 a m he went to his home in Dubrava Dubravë with his brother Dragoslav Stojanović and his cousin Veselin Stijović 729 After a short time he heard one shot from the direction of Dubrava Dubravë and then more shots coming from the direction of Glođane Gllogjan whereupon the three men entered the house to take cover 730 The shooting lasted for approximately 40 minutes 731 The shots smashed the window panes of the house and the car that was parked out front was damaged on all sides 732 The three men were unarmed 733 The men that approached the home wore a mixture of camouflage uniforms and civilian clothing with KLA insignia and were armed with small arms 734 The first person through the door was Ramush Haradinaj’s brother Daut Haradinaj followed by Xhavit Nimonaj 735 The armed men ordered the three men to lie face down and then started beating kicking and hitting them with rifle butts 736 The men also verbally abused the three men referencing their Serb ethnicity as well as cursing their Serbian mothers 737 Nasim Haradinaj arrived after approximately twenty minutes and told the men to stop the beating 738 175 According to Mijat Stojanović he was taken from the house along with Dragoslav Stojanović and Veselin Stijović to what was referred to as the “Glođane Gllogjan headquarters” which was Smajl Haradinaj’s house 739 While they 725 Mijat Stojanović T 1985 Mijat Stojanović T 2046 727 Mijat Stojanović T 2047 728 Mijat Stojanović T 2050 729 Mijat Stojanović T 2019-2020 730 Mijat Stojanović T 2021 2051 731 Mijat Stojanović T 2021 732 Mijat Stojanović T 2021 733 Mijat Stojanović T 2022 734 Mijat Stojanović T 2022-2023 Exhibit P9 KLA insignia 735 Mijat Stojanović T 2023 736 Mijat Stojanović T 2023-2025 737 Mijat Stojanović T 2024 738 Mijat Stojanović T 2024-2025 2076 2088 739 Mijat Stojanović T 2025 726 Case No IT-04-84-T 95 3 April 2008 were walking towards the house the men continued to verbally abuse the captives as well as hitting them and firing bullets past them 740 Mijat Stojanović stated that they were told not to look right or left but just to keep their heads down 741 On the way the witness testified that he saw Ramush Haradinaj in green camouflage and a black beret standing outside of his house together with two or three other individuals 742 The witness was at the time approximately 70 metres from the person he believed was Ramush Haradinaj 743 At Smajl Haradinaj’s house Dragoslav Stojanović was taken into a small room on the top floor while the other two waited in the corridor 744 The witness could hear Dragoslav Stojanović scream while being beaten 745 A short while later Dragoslav Stojanović was thrown back out into the corridor 746 He was clutching his stomach had blood on his face lay curled-up on the concrete floor and was unable to speak 747 At that point Veselin Stijović was taken into the room and the witness could hear him moan and scream 748 The men then brought the witness into the room where he could see Veselin Stijović standing naked from the waist up facing a corner 749 Zeqir Nimonaj Nasim Haradinaj and Besnik Haradinaj Ramush Haradinaj’s cousin were in the room along with two other men that the witness did not know 750 Zeqir Nimonaj who was wearing a camouflage uniform ordered the witness to strip down to his waist and he complied 751 All of the men in the room wore KLA insignia 752 The witness and Veselin Stijović were interrogated and beaten by all the men present 753 The men accused the witness of being a spy 754 The beating lasted a long time after which the two men were thrown back out into the hallway 755 The witness did not have any blood on him while Veselin Stijović was in a lot of pain and had blood around his ears 756 There Dragoslav Stojanović was lying in a pool of blood 757 He had a head 740 Mijat Stojanović T 2025 2091 Mijat Stojanović T 2026 2062-2063 742 Mijat Stojanović T 2026 2052-2058 2062-2067 2070-2071 D27 Photograph of Haradinaj house with marking D28 Photograph of Haradinaj house with marking 743 Joint Motion on Additional Agreed Facts 30 November 2007 para 2 744 Mijat Stojanović T 2028 745 Mijat Stojanović T 2029 746 Mijat Stojanović T 2029-2030 747 Mijat Stojanović T 2030 2094 748 Mijat Stojanović T 2029 749 Mijat Stojanović T 2030 750 Mijat Stojanović T 2030-2031 2087-2088 751 Mijat Stojanović T 2030-2031 752 Mijat Stojanović T 2031 753 Mijat Stojanović T 2031-2032 2088 754 Mijat Stojanović T 2039-2040 2091 755 Mijat Stojanović T 2032 756 Mijat Stojanović T 2032 741 Case No IT-04-84-T 96 3 April 2008 injury a nose injury and had vomited blood 758 His condition had worsened since the witness had entered the room 759 He was going in and out of consciousness 760 A person referred to as the “Russian” was also present and he hit Dragoslav Stojanović even though he was unconscious 761 At some point Nasim Haradinaj approached the three men in the corridor and told them that they would be released 762 He also asked the witness why they did not “join them” 763 The witness thought that Nasim Haradinaj was one of the men in charge because the other soldiers saluted him 764 Nasim Haradinaj and a third person took the witness out of the house in order to fetch his car 765 On the way he testified that he saw Hilmi and Ramush Haradinaj in the courtyard of Smajl Haradinaj’s house along with other soldiers standing in groups of two or three 766 Mijat Stojanović testified that he was only present in the courtyard for a short period 767 When the witness realized that his car was broken beyond repair Nasim Haradinaj and the third person brought him back into Smajl Haradinaj’s house 768 After asking permission from Nasim Haradinaj the witness went upstairs to get Dragoslav Stojanović whereupon the two and Veselin Stijović started to walk back to Dubrava Dubravë 769 A tractor was used to carry Dragoslav Stojanović 770 When they arrived at the witness’s house Nasim Haradinaj and one other person searched the garden and the house for weapons but did not find any 771 Nasim Haradinaj then cut curtains and used them to blindfold the three men 772 After that a car pulled up and the three men were taken to Baboloć Baballoq 773 There Nasim Haradinaj took off their blindfolds and ordered them to walk away and not to look back or else they would be fired upon 774 The Serbs in Baboloć Baballoq came and took the three men to a health centre in Dečani Deçan 757 Mijat Stojanović T 2032 Mijat Stojanović T 2032-2033 2096 759 Mijat Stojanović T 2095-2096 760 Mijat Stojanović T 2033-2034 2092-2096 761 Mijat Stojanović T 2033 762 Mijat Stojanović T 2034 2096 763 Mijat Stojanović T 2034 764 Mijat Stojanović T 2071-2072 765 Mijat Stojanović T 2034-2035 766 Mijat Stojanović T 2034-2036 2067-2069 2098 767 Mijat Stojanović T 2069 768 Mijat Stojanović T 2036-2037 769 Mijat Stojanović T 2037 770 Mijat Stojanović T 2037-2038 771 Mijat Stojanović T 2038 2041 772 Mijat Stojanović T 2041 773 Mijat Stojanović T 2041 774 Mijat Stojanović T 2041 2043 758 Case No IT-04-84-T 97 3 April 2008 where they were transferred immediately to Peć Pejë 775 Mijat Stojanović received medical attention in a hospital in Peć Pejë 776 He refused to be admitted but had to return there every day with Veselin Stijović to receive treatment 777 Mijat Stojanović gave an interview to a Serbian magazine on 25 April 1998 in which he stated that Nasim Haradinaj was probably the “boss” of the men who beat him 778 While he gave some names of those present and participating in the beating he made no mention of Ramush Haradinaj 779 Mijat Stojanović also gave an account of the incident to the Humanitarian Law Center on 25 April 1998 but made no mention of Ramush Haradinaj having been present 780 176 Veselin Stijović a Serb from the village of Dašinovac Dasinoc in Dečani Deçan municipality 781 testified that the day before Orthodox Easter in April 1998 he accompanied his cousins Dragoslav and Mijat Stojanović back to their home in Dubrava Dubravë in Dečani Deçan municipality 782 The cousins had left their home the day before for safety 783 While the three men were in the house they were shot at with automatic weapons and hand-held launchers from the direction of Glođane Gllogjan “and all directions” 784 The shooting continued for about 45 minutes 785 The men did not respond to the fire since they did not have any weapons 786 After the shooting had ceased the three men heard shouts in Albanian outside asking for them to come out 787 There were 20 or 30 armed men in front of the house most of them in camouflage uniforms with KLA insignia and some in civilian clothes 788 The witness described the KLA insignia as a black two-headed eagle against a red background and with the words “Kosovo Liberation Army” 789 When Dragoslav Stojanović opened the door the men rushed into the house 790 Dragoslav Stojanović was beaten and all three men were 775 Mijat Stojanović T 2042-2043 Mijat Stojanović T 2043 777 Mijat Stojanović T 2043 778 D25 Ilustrovana Politika article 25 April 1998 779 D25 Ilustrovana Politika article 25 April 1998 Mijat Stojanović T 2070 780 D29 Incident Report Humanitarian Law Center 25 April 1998 Mijat Stojanović T 2085-2086 Marijana Anđelković T 657-661 781 Veselin Stijović T 2119 782 Veselin Stijović T 2124-2126 2177 783 Veselin Stijović T 2125 2172 784 Veselin Stijović T 2125-2127 785 Veselin Stijović T 2125-2127 786 Veselin Stijović T 2127 787 Veselin Stijović T 2126-2128 788 Veselin Stijović T 2128 789 Veselin Stijović T 2128 790 Veselin Stijović T 2126-2127 776 Case No IT-04-84-T 98 3 April 2008 ordered to lie down 791 More men entered the house and the three men were beaten kicked and hit by rifle butts as they were lying down 792 The witness testified that one man called Nasim the witness believed but was not certain that his last name was Haradinaj was trying to protect the three men 793 After a while the men that had entered the house took the witness and Dragoslav and Mijat Stojanović to Glođane Gllogjan 794 The witness testified that there were many soldiers and civilians all armed along the road beating the three men 795 Some of the soldiers were wearing KLA insignia 796 The soldiers were swearing at the three men saying that Kosovo Kosova belonged to the Albanians while continuing to beat them 797 The three men were in pain bleeding and Dragoslav Stojanović was barely able to walk 798 Once in Glođane Gllogjan the three men were taken inside a house which the witness believed was a headquarters because of the many soldiers there 799 The witness and Mijat Stojanović were left in a corridor while Dragoslav Stojanović was brought into a small room 800 When he was thrown out of the room after about half an hour he was in a very serious condition vomiting blood and drifting in and out of consciousness 801 Mijat Stojanović was then brought into the room and the witness could hear him being beaten 802 After about an hour he was thrown out and the witness was brought in In the room there were two or three soldiers 803 The witness was asked among other things whether he had any weapons although he believed that the questioning was merely a pretext for the soldiers to beat him 804 The witness did not recognize anybody but Dragoslav and Mijat Stojanović later told him who some of them were 805 Among the soldiers were two men known to Dragoslav and Mijat Stojanović namely Daut Haradinaj and a man called “Zeqir” 806 The witness was severely beaten for about an hour with a bat or baton fists and rifle 791 Veselin Stijović T 2126-2129 Veselin Stijović T 2126-2129 793 Veselin Stijović T 2132 2162-2164 794 Veselin Stijović T 2129 2132 795 Veselin Stijović T 2129-2130 2132-2134 2174-2175 796 Veselin Stijović T 2133-2134 797 Veselin Stijović T 2130-2131 2133 2182 798 Veselin Stijović T 2134 2167 799 Veselin Stijović T 2132 2135 800 Veselin Stijović T 2133-2134 801 Veselin Stijović T 2135-2136 2139 802 Veselin Stijović T 2135 2137 803 Veselin Stijović T 2135 804 Veselin Stijović T 2137 805 Veselin Stijović T 2132 806 Veselin Stijović T 2132 2137-2138 2165-2166 792 Case No IT-04-84-T 99 3 April 2008 butts 807 After that Mijat Stojanović was brought back in and both of them were beaten again and then thrown out of the room 808 The witness saw that some soldiers were beating Dragoslav Stojanović who was lying in the corridor 809 While in the corridor the witness met a person he knew Deli Lekaj who was armed and wearing civilian clothes 810 Lekaj told him that should he get out of the house alive he should not go back to Dašinovac Dasinoc as it was only a matter of time before they would put up a roadblock in Požar Pozhare on the road leading to Dašinovac Dasinoc and the witness would risk being imprisoned again 811 Dragoslav Stojanović and the witness were soon taken out in the yard in front of the house and forced to wash the blood off at a waterpump 812 Dragoslav Stojanović had to pump the water for the witness despite his condition and vice versa 813 The three men were then ordered to return to Dubrava Dubravë by foot escorted by soldiers 814 Dragoslav Stojanović was in such bad condition that Mijat Stojanović and the witness put him on a tractor that was going in the same direction 815 Once back at the house of Dragoslav and Mijat Stojanović in Dubrava Dubravë the escorting soldiers blindfolded the three men tied their hands put them in a car and took them to an area close to the village of Babaloć Baballoq in Dečani Deçan municipality 816 One of the men in the car was Nasim 817 The three men were untied and told to walk straight ahead without looking back 818 The three men eventually managed to reach the hospital in Dečani Deçan 819 There they received firstaid and were told to go to the hospital in Peć Pejë where Dragoslav Stojanović was Xrayed and sent by ambulance to Priština Prishtinë 820 Mijat Stojanović and Veselin Stijović were told to stay at the hospital in Peć Pejë for treatment which they refused 821 Veselin Stijović had suffered cuts to his ears and head bruises to his back and backside and he experienced pain for about 20 days thereafter 822 807 Veselin Stijović T 2137-2139 Veselin Stijović T 2137 2139 809 Veselin Stijović T 2139 810 Veselin Stijović T 2138 2140 811 Veselin Stijović T 2138 2140 2180 812 Veselin Stijović T 2141-2142 813 Veselin Stijović T 2141-2142 814 Veselin Stijović T 2141 2143 815 Veselin Stijović T 2141 2143-2144 816 Veselin Stijović T 2143 2145-2146 817 Veselin Stijović T 2145 818 Veselin Stijović T 2143 2146 819 Veselin Stijović T 2144 2146-2148 820 Veselin Stijović T 2148 821 Veselin Stijović T 2148 822 Veselin Stijović T 2148-2149 808 Case No IT-04-84-T 100 3 April 2008 177 Based on the evidence the Trial Chamber is convinced that on 18 April 1998 KLA soldiers entered the Stojanović family house in Dubrava Dubravë There they kicked beat and hit with rifle butts Dragoslav Stojanović Mijat Stojanović and Veselin Stijović The KLA soldiers then brought the three men in a poor condition to the house of Smajl Haradinaj in Glođane Gllogjan A KLA soldier interrogated Dragoslav Stojanović about the police why he was in Dubrava Dubravë without a permit and why he had not joined “them” Dragoslav Stojanović was then thrown into a corridor where he was further beaten as he lay on the floor in pain injured vomiting blood and drifting in and out of consciousness Mijat Stojanović and Veselin Stijović were interrogated in turn Mijat Stojanović was accused of being a spy Veselin Stijović was asked whether he had any weapons Veselin Stijović was beaten with a baton fists and rifle butts was in pain and bloody around the ears Once the beating was over KLA soldiers brought Dragoslav Stojanović Mijat Stojanović and Veselin Stijović back to the Stojanović family’s house in order to search for weapons Dragoslav Stojanović was in such a bad state that he had to be transported by a tractor while Veselin Stijović had cuts on his head and bruises on his back As a result of the illtreatment Dragoslav Stojanović underwent surgery and was hospitalized for 28 days Mijat Stojanović and Veselin Stijović received hospital treatment over several days On the basis of this evidence the Trial Chamber is convinced that the ill-treatment caused severe pain and suffering to the three men and was intentionally inflicted with the aim of obtaining information as well as punishing the three men 178 Dragoslav Stojanović testified that while he was lying in the corridor Ramush Haradinaj arrived and after asking if he recognized him kicked Dragoslav Stojanović in the back The Trial Chamber is convinced that Dragoslav Stojanović believed that this person was Ramush Haradinaj However given the circumstances under which this occurred and the lack of corroboration the Trial Chamber must proceed with utmost caution when evaluating whether the person Dragoslav Stojanović believed he recognized was indeed Ramush Haradinaj In this respect Dragoslav Stojanović testified that at least three other persons also asked him a similar question and kicked him while he was lying on the floor Although Dragoslav Stojanović testified that Ramush Haradinaj was present in the corridor between five and six minutes he failed to recognize any of the other men accompanying Ramush Haradinaj giving as a reason that his condition was too poor to allow him to have a proper look All three witnesses Case No IT-04-84-T 101 3 April 2008 testified that Dragoslav Stojanović was in a very poor condition and drifting in and out of consciousness Dragoslav Stojanović also testified that he had not seen Ramush Haradinaj for about ten years The Trial Chamber has also considered what weight to give to the fact that in contemporaneous conversations Ramush Haradinaj was not mentioned as having been involved in the ill-treatment of Dragoslav Stojanović Had the Trial Chamber been presented with some evidence of a contemporaneous account of Ramush Haradinaj’s presence the Trial Chamber could have excluded the possibility of a delayed assertion of memory by Dragoslav Stojanović However absent such evidence the Trial Chamber can make no such finding In this respect therefore the Trial Chamber finds no grounds that would weigh in favour of Dragoslav Stojanović having positively identified Ramush Haradinaj This said the fact that Ramush Haradinaj was not mentioned in any contemporaneous accounts is not considered by the Trial Chamber as an indication that Dragoslav Stojanović intentionally provided false testimony as to the presence and participation of Ramush Haradinaj in his ill-treatment Moreover the Trial Chamber rejects the argument that Dragoslav Stojanović may have falsely implicated Ramush Haradinaj because the witness held Ramush Haradinaj or his family responsible for the loss of the Stojanović family house Having considered the evidence the Trial Chamber finds that the conditions under which Dragoslav Stojanović viewed the person he believed to be Ramush Haradinaj were such that it is unable to conclude beyond a reasonable doubt that it was indeed Ramush Haradinaj The Trial Chamber finds that paragraph 59 under Count 4 of the Indictment charges Ramush Haradinaj with committing cruel treatment and torture against Dragoslav Stojanović alone at the exclusion of Mijat Stojanović and Veselin Stijović Furthermore the Trial Chamber has heard no evidence indicating that Ramush Haradinaj personally ill-treated Mijat Stojanović and Veselin Stijović 179 Mijat Stojanović testified that he saw Ramush Haradinaj when Dragoslav Stojanović Mijat Stojanović and Veselin Stijović were taken from the Stojanović family house towards Glođane Gllogjan as well as in the yard outside Smajl Haradinaj’s house once the beatings were over Both alleged sightings were made under difficult and traumatic circumstances On the first occasion Mijat Stojanović testified that while being told to keep his head down being beaten and verbally abused and as shots were fired past him he recognized Ramush Haradinaj from a significant distance Similarly the second alleged sighting of Ramush Haradinaj by Mijat Stojanović took Case No IT-04-84-T 102 3 April 2008 place after he had been ill-treated during the short time he was present in the yard In view of the Trial Chamber’s findings in relation to the presence of Ramush Haradinaj in the corridor it cannot consider that alleged sighting by Dragoslav Stojanović as corroboration of these two sightings Even assuming that Mijat Stojanović did recognize Ramush Haradinaj the Trial Chamber finds that the evidence presented is not sufficient to conclude that he in any way assisted encouraged or lent moral support either prior to or after the ill-treatment of Mijat Stojanović Veselin Stijović and Dragoslav Stojanović Based on these considerations the Trial Chamber is not convinced beyond a reasonable doubt that Ramush Haradinaj was personally involved in the mistreatment of the three victims on 18 April 1998 In section 3 2 3 above the Trial Chamber found that an armed conflict existed in Kosovo Kosova from and including 22 April onwards For these reasons the Trial Chamber concludes that all three Accused should be acquitted of all charges in Count 4 6 4 Cruel treatment and torture of Staniša Radošević and Novak Stijović Count 6 180 All three Accused are charged as participants in a joint criminal enterprise with cruel treatment and torture of Staniša Radošević and Novak Stijović in violation of the laws or customs of war The Trial Chamber has heard relevant evidence from Novak Stijović Staniša Radošević Miloica Vlahović and Marijana Anđelković 181 Novak Stijović a Serb 823 testified that on 21 April 1998 he worked the night shift 824 In Dečani Deçan he met Rosanda Radošević 825 and her son Staniša Radošević from Dašinovac Dashinoc in Dečani Deçan municipality and together they travelled homewards 826 Novak Stijović drove his red Yugo while Rosanda Radošević and Staniša Radošević drove their grey Lada 827 When they reached Požar Pozhare they were stopped at a checkpoint by KLA soldiers pointing their guns at them 828 Some of the soldiers were in uniform with KLA insignia others were in civilian clothing 829 Novak Stijović remembered seeing among them Kujtim Berisha an Albanian from 823 Novak Stijović T 7142-7143 7162 Novak Stijović T 7145-7146 825 Based on the evidence the Trial Chamber understands Rosa and Rosanda Radošević to refer to the same person 826 Novak Stijović T 7145-7146 827 Novak Stijović T 7146 828 Novak Stijović T 7147 7160 829 Novak Stijović T 7149 7168 824 Case No IT-04-84-T 103 3 April 2008 Požar Pozhare and a certain “Jusuf” whose last name he had forgotten 830 The KLA soldiers asked them where they were going and when Novak Stijović and Rosanda and Staniša Radošević told them that they were going home the soldiers answered that they could not go home and that they had no business there anymore 831 No one seemed to be in charge but after at most ten minutes Jusuf ordered that Novak Stijović and Rosanda and Staniša Radošević be taken to Glođane Gllogjan in Dečani Deçan municipality 832 KLA soldiers guarded and drove them in their cars towards Glođane Gllogjan 833 182 At the entrance to Glođane Gllogjan Novak Stijović’s car broke down and they encountered approximately 30-50 KLA soldiers most of whom were armed 834 No one seemed to be in charge 835 When they got out of the car the soldiers punched kicked and hit Novak Stijović and Staniša Radošević with rods and rifle-butts for approximately twenty to thirty minutes 836 Novak Stijović was beaten on his back but felt no immediate injuries 837 Novak Stijović had no blood on him but Staniša Radošević did 838 Novak Stijović believed that Staniša Radošević bled from a wound on the back of his head inflicted by a hit from a rifle-butt 839 Rosanda Radošević was present but not beaten 840 The soldiers asked them questions in Serbian about the location and number of police forces and about individual members of the police forces including the head of the police in Dečani Deçan and the commander of the police station in Rznić Irzniq 841 The soldiers also asked if they had relatives in the police if any of Novak Stijović’s co-villagers were members of the police and which police officers were responsible for shooting Albanians on 24 March 842 Individuals whom Novak Stijović did not identify told them that they should not return home but rather go to Serbia 843 Novak Stijović did not lose consciousness but he believed that 830 Novak Stijović T 7149 7169 Novak Stijović T 7150 832 Novak Stijović T 7172-7173 7188 833 Novak Stijović T 7149-7150 7172 7188 834 Novak Stijović T 7151 7171-7172 835 Novak Stijović T 7172-7173 7187-7188 836 Novak Stijović T 7151 7189 837 Novak Stijović T 7161-7162 838 Novak Stijović T 7153 839 Novak Stijović T 7153 840 Novak Stijović T 7153 7185 7188 841 Novak Stijović T 7151-7152 7157 842 Novak Stijović T 7173-7274 7188 7191-7192 843 Novak Stijović T 7152-7153 831 Case No IT-04-84-T 104 3 April 2008 Staniša Radošević briefly did 844 The soldiers asked them whether they had any weapons to which Novak Stijović answered that he had a rifle and Staniša Radošević answered that he also had one 845 The soldiers asked them which one of them could go get the rifles and as neither of them could make up their minds the soldiers decided to send Staniša Radošević 846 Persons whom Novak Stijović did not identify gave Staniša Radošević a KLA emblem which Novak Stijović believed to serve as a laissez-passer and Staniša Radošević left in his car 847 183 Unidentified persons brought Novak Stijović and Rosanda Radošević from the direction of Rznić Irzniq to a private two-storey house at the entrance of Glođane Gllogjan which was the nearest house to where Novak Stijović’s car had stopped 848 They entered straight into a small room with a metal door and bars on the window where they remained locked up for approximately an hour to an hour and a half 849 There was one soldier in the room 850 A man came and told Novak Stijović and Rosanda Radošević that they could leave which they did 851 They asked the soldiers where they could go and someone answered that they could go anywhere they pleased except home 852 Novak Stijović could not start his car 853 Some KLA soldiers towed the car with Novak Stijović and Rosanda Radošević inside about seven or eight kilometres to the village of Prilep Prelep in Dečani Deçan municipality on the main road between Dečani Deçan and Đakovica Gjakovë where the KLA soldiers left them 854 Novak Stijović testified that of the six Serbs whom he knew had been stopped at the Požar Pozhare checkpoint including his father only he and Staniša Radošević had been beaten 855 Approximately three to five months later Novak Stijović began to have spinal problems which were occasional at first and not so strong 856 Marijana 844 Novak Stijović T 7153 Novak Stijović T 7153-7154 846 Novak Stijović T 7153-7154 847 Novak Stijović T 7156 7158 848 Novak Stijović T 7154 7161 7172 7192-7193 849 Novak Stijović T 7154 7193 850 Novak Stijović T 7191 851 Novak Stijović T 7154-7155 852 Novak Stijović T 7155 853 Novak Stijović T 7156 854 Novak Stijović T 7155-7157 855 Novak Stijović T 7160-7161 7184-7187 856 Novak Stijović T 7161 7182-7183 845 Case No IT-04-84-T 105 3 April 2008 Anđelković spoke to Novak Stijović on 25 April 1998 in Dečani Deçan and generally confirmed his account of the events of 22 April 1998 857 184 Staniša Radošević a Serb 858 testified that on the morning of 22 April 1998 he his mother Rosa Radošević and his friend Novak Stijović were driving in two cars from Dečani Deçan towards the Radošević family home in Dašinovac Dasinoc 859 When they reached the intersection of the road between the villages of Požar Pozhare and Donja Luka Lluka ë Ultë in Dečani Deçan municipality five armed men approached the cars 860 Three of the men wore civilian clothes two wore uniforms 861 All of the men had KLA insignia a double-headed black eagle with the letters UÇK on their sleeves 862 The men speaking in Albanian and Serbian told the witness to get out of his car 863 They questioned the witness about whether he had any weapons where he was going and they told the passengers that they could no longer go to Dašinovac Dasinoc because “it was theirs now … Serbs could no longer live there” 864 Approximately 50 armed men then came out of a concrete trench next to the road 865 The witness knew most of the men from before as villagers from Donja Luka Lluka ë Ultë Požar Pozhare and Ljumbarda Lumbardh 866 The men were armed and some of them wore uniforms while others wore civilian clothes with the KLA insignia on their sleeves or caps 867 185 After about half an hour one of the armed men took Novak Stijović’s car and drove ahead of Staniša Radošević in the direction of Rznić Irzniq in Dečani Deçan municipality 868 A man with an automatic rifle sat behind the witness 869 The witness’s mother and Novak Stijović were in the car as well 870 The witness observed trenches and approximately 100 men chanting “KLA” along the roadside 871 The witness also observed large-calibre weapons and two men in black uniforms near a fortification 857 Marijana Anđelković T 463-464 466 514 516-521 P4 Anđelković’s notebook volume 2 pp 1314 P5 Incident Report Humanitarian Law Center 27 April 1998 858 Staniša Radošević T 956 D5 Staniša Radošević witness statement 23 August 2005 p 1 859 Staniša Radošević T 957 960-961 1011 1020 1022 P5 Incident reports by the Humanitarian Law Center 5 May 1998 p 15 860 Staniša Radošević T 961-962 965 P11 Map of the Lake Radonjić Radoniq area with markings 861 Staniša Radošević T 962 862 Staniša Radošević T 961-962 P9 KLA insignia 863 Staniša Radošević T 963 864 Staniša Radošević T 963 865 Staniša Radošević T 961 966 1036 866 Staniša Radošević T 966 867 Staniša Radošević T 962 966-967 1036 P9 KLA insignia 868 Staniša Radošević T 967 1036-1037 869 Staniša Radošević T 967 870 Staniša Radošević T 967 871 Staniša Radošević T 967-968 1040 Case No IT-04-84-T 106 3 April 2008 between Rznić Irzniq and Glođane Gllogjan 872 Novak Stijović’s car broke down about ten metres from this fortification which was 200 to 300 metres from Glođane Gllogjan and the three were told to get out of the vehicles 873 More men in uniform and some in civilian clothes arrived at which point three to five men started to beat Novak Stijović 874 The men hit Novak Stijović on the head chest and ribs and continued to kick him after he fell to the ground 875 When the witness intervened and tried to protect Stijović the men started to beat and kick him as well 876 The men beat them with fists and with rifle and pistol butts 877 During the beating the men cursed their Serbian mothers and said that this was their land 878 The men did not beat the witness’s mother 879 The men took the witness’s address book and for each name in the book they questioned him about whether the person was a Serb or a Roma 880 After about an hour a man who appeared to be in charge took the witness his mother and Novak Stijović to a small room a few metres down the road and interrogated the witness while beating him 881 When the witness said that his father had two guns the man ordered him to go and get them or else he would kill the mother and Novak Stijović 882 The man gave the witness an insignia of the KLA to be used for protection from KLA soldiers on the way 883 The witness then left his mother and Novak Stijović behind and went to get the two guns from his father at the family home in Dašinovac Dasinoc see section 6 7 below 884 After retrieving one of the guns the witness left for Dečani Deçan under the pretext of getting another gun 885 The witness went to the police station in Dečani Deçan to report the incident and a police officer there informed him that his mother and Novak Stijović had been found walking near the village of Prilep Prelep in Dečani Deçan municipality and that they had been brought to Dečani Deçan 886 872 Staniša Radošević T 969-970 P12 Map of the Lake Radonjić Radoniq area with markings Staniša Radošević T 970-971 1041-1042 874 Staniša Radošević T 971-972 875 Staniša Radošević T 971-973 876 Staniša Radošević T 972-974 1050 877 Staniša Radošević T 972 974 878 Staniša Radošević T 973 879 Staniša Radošević T 982 880 Staniša Radošević T 974 881 Staniša Radošević T 981-983 882 Staniša Radošević T 983 883 Staniša Radošević T 984 987 884 Staniša Radošević T 984 885 Staniša Radošević T 985-987 1043 1060 1062 1070-1071 1073-1074 886 Staniša Radošević T 988 873 Case No IT-04-84-T 107 3 April 2008 186 Miloica Vlahović a Serb 887 testified that on 22 April 1999 he was told by policemen at the Dečani Deçan police station that Konstantin Stijović his son Novak Stijović Staniša Radošević and his daughters-in-law Milka Stijović and Stanislava Popović were arrested by Albanians 888 Later Novak Stijović told the witness that they had been held in the village of Požar Pozhare in Dečani Deçan municipality and then taken to Glođane Gllogjan where he and Staniša Radošević were beaten 889 The witness did not know whether they were all detained together 890 Konstantin Stijović told the witness that he had been released after Hilmi Haradinaj the father of the Accused Ramush Haradinaj intervened on his behalf 891 187 Based on the evidence the Trial Chamber concludes that on 22 April 1998 Rosa Radošević Novak Stijović and Staniša Radošević were stopped by armed KLA soldiers on the road in or near Požar Pozhare KLA soldiers subsequently took the three by car in the direction of Glođane Gllogjan At the entrance of Glođane Gllogjan Novak Stijović and Staniša Radošević were kicked and beaten by a group of KLA soldiers with fists and rifle and pistol butts for a considerable amount of time Novak Stijović fell to the ground and Staniša Radošević was bleeding The three were then taken inside a room in a nearby house and Staniša Radošević was beaten and interrogated Staniša Radošević was sent out of the house on the condition that he would go to collect two guns After some time Rosa Radošević and Novak Stijović were released Staniša Radošević retrieved one gun and then left for Dečani Deçan under the pretext of getting the other gun but instead escaped and went to the local police station 188 The Trial Chamber is satisfied that the beating caused Novak Stijović and Staniša Radošević serious physical suffering In light of the severity of the beating and its duration the Trial Chamber is also satisfied that the perpetrators of this beating intended to cause such suffering The Trial Chamber is furthermore convinced that this crime was closely related to the armed conflict in Kosovo Kosova and that the victims were not taking active part in hostilities at the time the crime was committed and that the perpetrators knew or should have known that this was the case For these reasons the Trial Chamber concludes that KLA soldiers committed cruel treatment against Novak Stijović and Staniša Radošević 887 Miloica Vlahović T 1542-1543 Miloica Vlahović T 1577-1580 1639-1640 889 Miloica Vlahović T 1581-1582 1639-1640 890 Miloica Vlahović T 1581 1639 888 Case No IT-04-84-T 108 3 April 2008 189 The KLA soldiers repeatedly told Novak Stijović and Staniša Radošević that they as Serbs could not return to their homes since that land was not theirs During the beatings the KLA soldiers interrogated them about their knowledge of and connections with the Serbian police asking questions about police force numbers locations and individual members They also questioned Staniša Radošević about the ethnicity of persons named in his address book One KLA soldier threatened to kill Rosa Radošević and Novak Stijović unless Staniša Radošević went to collect two guns The Trial Chamber therefore finds that the beatings were aimed at obtaining information and at intimidating and coercing the victims and at discriminating against Novak Stijović and Staniša Radošević on the basis of their ethnicity For these reasons the Trial Chamber concludes that KLA soldiers tortured Novak Stijović and Staniša Radošević 190 All three Accused are charged with Count 6 as participants in a joint criminal enterprise The Trial Chamber will deal with this mode of liability in section 7 below 6 5 Murder of Vukosava Marković and Darinka Kovać Count 8 191 All three Accused are charged as participants in a joint criminal enterprise with the murder of Vukosava Marković and Darinka Kovać in violation of the laws or customs of war In the alternative Idriz Balaj is charged with the commission of or aiding and abetting the commission of the murder The Trial Chamber has heard relevant evidence from Miloica Vlahović and Vera Kovačević as well as forensic medical evidence 192 Miloica Vlahović testified that by 21 April 1998 Darinka and Vukosava Vujosević were among the few Serbs remaining in Gornji Ratiš Ratishë ë Eperm and Dašinovac Dashinoc 892 In September 1998 a man named Muhamet from the village Kodralija Kodrali in Dečani Deçan municipality told him that in late July 1998 Darinka and Vukosava Vujosević were killed and that their crops were set on fire 893 The witness does not know whether Muhamet saw the killings 894 891 Miloica Vlahović T 1581 1640 Miloica Vlahović T 1554-1555 893 Miloica Vlahović T 1572-1573 894 Miloica Vlahović T 1573 892 Case No IT-04-84-T 109 3 April 2008 193 Vera Kovačević the daughter of Darinka Kovać and niece of Vukosava Marković 895 learned of her mother’s disappearance and was later informed that she went missing on 21 April 1998 896 On 19 September 1998 Vera Kovačević participated in the process of identification of Darinka Kovać remains labelled “R-17” and Vukosava Marković remains labelled “R-10” conducted in the Paštrik Hotel in Đakovica Gjakovë 897 She provided the forensic technicians with personal information regarding her mother and aunt including a description of their physical appearance and a brief medical and dental history 898 According to the witness Darinka Kovać had suffered from spinal problems had a slight hunchback and wore a dental prosthesis on her upper and lower teeth and Vukosava Marković had suffered injuries to her head and leg from a car accident 899 Vera Kovačević identified a blue dress with a white floral pattern and a white vest she had knitted herself as belonging to Darinka Kovać 900 She identified a dark beige skirt and a blue skirt both of which she had sewed herself and a dark blue jacket as belonging to Vukosava Marković 901 On the basis of this information the technicians were able to make a positive identification 902 Later that day the remains of Darinka Kovać and Vukosava Marković were buried in the Piskote Cemetery in Đakovica Gjakovë 903 Despite two separate attempts in 2005 their remains have not been found 904 194 The Trial Chamber has also received forensic medical evidence with regard to remains R-10 and R-17 traditionally identified as Vukosava Marković and Darinka Kovać Branimir Aleksandrić 905 testified that body R-10 was recovered on 12 September 1998 at the Radonjić Radoniq canal 906 Right next to the outer side of the concrete canal wall careful removal of the gravel revealed body R-10 which had a 895 P1246 Vera Kovačević witness statement 8 November 2007 para 1 P1246 Vera Kovačević witness statement 8 November 2007 para 3 897 P1246 Vera Kovačević witness statement 8 November 2007 para 5 See also P618 Dušan Dunjić witness statement 8 June 2007 paras 304 306-307 404-408 Dušan Dunjić T 7207-7208 7350 11027-11028 P672 Autopsy report R-10 pp 7-8 P706 Autopsy report R-17 pp 2 6-7 D66 Video of Radonjić Radoniq canal and Hotel Paštrik 12-19 September 1998 1 58’07” – 1 59’47” 898 P1246 Vera Kovačević witness statement 8 November 2007 paras 5 9 10 899 P1246 Vera Kovačević witness statement 8 November 2007 paras 1 9-10 900 P1246 Vera Kovačević witness statement 8 November 2007 paras 1 5-6 14 901 P1246 Vera Kovačević witness statement 8 November 2007 paras 1 5 7 14 902 P1246 Vera Kovačević witness statement 8 November 2007 para 11 903 P1246 Vera Kovačević witness statement 8 November 2007 para 13 904 P1246 Vera Kovačević witness statement 8 November 2007 para 15 905 P1260 Branimir Aleksandrić witness statement 26 June 2007 p 1 paras 1 4 6 9 11-12 245 Branimir Aleksandrić T 6732-6733 6737 P1113 Annex A to Branimir Aleksandrić witness statement 26 June 2007 p 1 P1114 Annex B to Branimir Aleksandrić witness statement 26 June 2007 906 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 4 6 128-129 203-204 896 Case No IT-04-84-T 110 3 April 2008 metal wire three millimetres in diameter tied around the waist area 907 Aleksandrić further testified that body R-17 was recovered on 12 September 1998 at the Radonjić Radoniq canal 908 Careful digging revealed body R-17 deep in the earth 909 A full set of dentures for the upper jaw were found with the head of body R-17 910 After reviewing the autopsy report Aleksandrić recalled that the spine of the body was very curved 911 According to the autopsy report during the identification of body R-17 at Hotel Paštrik the daughter of Darinka Kovać stated that she believed her mother had no teeth partial lower dentures complete upper dentures and a long term disease which caused ossification of the spinal column 912 195 Dušan Dunjić 913 testified that body R-10 was wearing a greenish knit skirt a black linen skirt and a blue long-sleeved tunic 914 Body R-10 was a female between 50 and 60 years old and between 156 and 165 centimetres tall 915 The autopsy revealed a bullet hole through the left side of the pelvis and fractures to the left arm the spine and the right leg above the knee 916 On 19 September 1998 Vera Kovačević identified the body as Vukosava Marković born Vujošević on the basis of several items of clothing and signs of a bone injury from a car accident in the right leg and to the head 917 Vera Kovačević was able to describe a blouse found with the body that she knew was a gift from a brother before it was shown to her 918 Vera Kovačević spotted the clothes found with the body among all the clothes laid out for identification 919 Body R-10 was 907 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 129 132-133 P418 Various photographs p 2 P452 Video of body recovery at canal 0 55’38”- 1 04’39” 908 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 4 6 128-129 203-204 909 P1260 Branimir Aleksandrić witness statement 26 June 2007 para 144 Branimir Aleksandrić T 6766-6767 P449 Various photographs p 39 P452 Video of body recovery at canal 1 27’24” 1 31’05” 910 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 144 146 P452 Video of body recovery at canal 1 29’36” - 1 29’46” 911 P1260 Branimir Aleksandrić witness statement 26 June 2007 para 150 P706 Autopsy report R17 pp 2 5 912 P706 Autopsy report R-17 pp 6-7 913 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 914 P672 Autopsy report R-10 p 2 915 P618 Dušan Dunjić witness statement 8 June 2007 paras 298-299 P672 Autopsy report R-10 p 7 916 P618 Dušan Dunjić witness statement 8 June 2007 para 300 P672 Autopsy report R-10 p 2 7 917 P618 Dušan Dunjić witness statement 8 June 2007 paras 304 306-307 Dušan Dunjić T 7207 11027-11028 P672 Autopsy report R-10 pp 7-8 D66 Video of Radonjić Radoniq canal and Hotel Paštrik 12-19 September 1998 1 58’07” – 1 59’47” 918 Dušan Dunjić T 7207 919 Dušan Dunjić T 7207 D66 Video of Radonjić Radoniq canal and Hotel Paštrik 12-19 September 1998 1 57’57” – 1 58’38” Case No IT-04-84-T 111 3 April 2008 handed over to the relatives and the commission issued a death certificate 920 Body R-17 was wearing a blue dress with purple and white patterns over a hand-knitted vest 921 Body R-17 was a female between 55 and 65 years old and between 156 and 161 centimetres tall 922 The autopsy revealed a hand-gun bullet entry and exit wound on the left half of the pelvic bone which if inflicted in life could have caused a haemorrhage and led to death 923 On 19 September 1998 Vera Kovačević identified the body as Darinka Kovać born Vujošević based on clothing the ossification of the spinal column and signs of a chronic degenerative bone disease suffered in life which caused severe ossification of the spinal column 924 Vera Kovačević told the team that Vukosava Marković and her sister Darinka Kovać went missing on 21 April 1998 925 Bodies R-10 and R-17 were handed over to the relatives and a death certificate was issued 926 The witness did not take a DNA sample from R-17 because of the specific nature of the traditional identification 927 196 As referred to above the Trial Chamber has heard hearsay evidence from Vera Kovačević that Vukosava Marković and Darinka Kovać went missing on 21 April 1998 In September 1998 two sets of remains were identified by traditional means as belonging to these two women Both sets of remains had been found near the concrete wall at the Radonjić Radoniq canal In addition to general physical characteristics the identification of Vukosava Marković was based in part on traces of bone injuries found on the remains that matched injuries sustained in life in a car crash Likewise in addition to general physical characteristics the identification of Darinka Kovać was based in part on the symptoms of a bone disease present in the remains that she had suffered in life The identification further considered a set of upper dentures found with the remains that Darinka Kovać was known to wear Also for both sets of remains Vera Kovačević identified pieces of clothing as ones that she had made herself There are some discrepancies between the accounts of Vera Kovačević and Dušan Dunjić concerning the identification of the clothing of Vukosava Marković Although the 920 P618 Dušan Dunjić witness statement 8 June 2007 para 308 P635 Death certificates pp 5-6 P672 Autopsy report R-10 p 8 921 P706 Autopsy report R-17 p 3 922 P618 Dušan Dunjić witness statement 8 June 2007 para 399 P706 Autopsy report R-17 p 5 923 P618 Dušan Dunjić witness statement 8 June 2007 para 401 P706 Autopsy report R-17 pp 2 6 924 P618 Dušan Dunjić witness statement 8 June 2007 paras 404-408 Dušan Dunjić T 7208 7350 P706 Autopsy report R-17 pp 2 6-7 925 P618 Dušan Dunjić witness statement 8 June 2007 para 305 P672 Autopsy Report R-10 p 7 926 P618 Dušan Dunjić witness statement 8 June 2007 paras 308 409 Dušan Dunjić T 7351 P635 Death certificates pp 5-6 9-10 P672 Autopsy report R-10 p 8 P706 Autopsy report R-17 p 7 Case No IT-04-84-T 112 3 April 2008 accounts differ they are not necessarily contradictory and certain discrepancies concern ambiguous details such as the exact colour of clothing Therefore the Trial Chamber does not consider these discrepancies significant and notes that the identification of clothing was only one of the factors considered in the identification of the remains As the remains could not be retrieved they could not have been identified by DNA analysis The Trial Chamber has heard evidence of traditional identification of other sets of remains which was later contradicted by DNA analysis Nevertheless considering the strong grounds for the traditional identification and the fact that the two sets of remains were discovered in close proximity to each other the Trial Chamber finds that the remains labelled R-10 belong to Vukosava Marković and the remains labelled R-17 belong to Darinka Kovać The forensic medical evidence suggests that Vukosava Marković and Darinka Kovać were murdered In section 6 1 above the Trial Chamber has explained that the fact that a body was found in the Radonjić Radoniq canal area is not in itself conclusive as to who committed the killing or with which group if any the perpetrator was affiliated The Trial Chamber has not received any evidence about either of the women being in KLA custody By late April 1998 Vukosava Marković and Darinka Kovać were among the last remaining Serbs in the village of Gornji Ratiš Ratishë ë Eperm which had fallen under KLA control on or around 21 April 1998 Further Miloica Vlahović testified that she had heard from a man named Muhamet that Vukosava Marković and Darinka Kovać were killed in July 1998 Miloica Vlahović did not clarify the basis of Muhamet’s information Thus the evidence is unsourced and possibly multiple hearsay Even if the two women went missing in KLA controlled territory and were among the last Serbs remaining in their village in late April 1998 this fact alone could not reasonably exclude the possibility that other forces or persons unaffiliated with the KLA committed the killing 197 For these reasons even assuming that Vukosava Marković and Darinka Kovać were murdered the Trial Chamber finds that the evidence before it does not allow for a conclusion beyond a reasonable doubt as to who committed the murders of the two women with which group if any the perpetrator was affiliated or whether the murders occurred in KLA custody The Trial Chamber has heard no evidence concerning Idriz Balaj’s involvement in the death of either of the two women The Trial Chamber concludes that all three Accused should be acquitted of this charge 927 Dušan Dunjić T 7350 P706 Autopsy report R-17 pp 6-7 Case No IT-04-84-T 113 3 April 2008 6 6 Murder of Milovan and Milka Vlahović Count 10 198 All three Accused are charged as participants in a joint criminal enterprise with the murder of Milovan and Milka Vlahović in violation of the laws or customs of war The Trial Chamber has heard relevant evidence from a number of witnesses as well as forensic medical evidence 199 Goran Vlahović a Serb from the predominantly Albanian village of Gornji Ratiš Ratishë ë Eperm in Dečani Deçan municipality 928 testified that on 21 April 1998 he and his brother Novak Vlahović left their parents’ home for work in Dečani Deçan 929 According to the witness this was the last time they saw their parents 930 After work the two brothers tried to return to their parents’ house but were unable to as the roads both in Dečani Deçan and Prilep Prelep were blocked by the Serbian police who told them that “there were armed men” 931 Goran Vlahović’s other brothers Miloica and Rade had also tried to get back to the village but without success 932 In the following days the brothers made further attempts to reach Gornji Ratiš Ratishë ë Eperm but they were unsuccessful as the police did not let them through 933 Not being able to reach Gornji Ratiš Ratishë ë Eperm Goran Vlahović’s brother Rade sent his Catholic Albanian friend Nuo Alakaj to the village to check on their parents 934 Rade Vlahović told Goran Vlahović that Nuo Alakaj had found that the parents were no longer there 935 Goran Vlahović did not know when Alakaj went there 936 200 Miloica Vlahović a Serb from Peć Pejë 937 last saw his parents on 21 April 1998 in the afternoon when he left for Đakovica Gjakovë after staying the night at their home in Gornji Ratiš Ratishë ë Eperm in Dečani Deçan municipality 938 On that day Miloš Radunović his wife Milica and Slobodan Radošević visited the witness’s 928 Goran Vlahović T 1730-1731 1734-1735 Goran Vlahović T 1731 1735 1736 930 Goran Vlahović T 1737 1748 931 Goran Vlahović T 1737-1741 932 Goran Vlahović T 1742 933 Goran Vlahović T 1741-1742 934 Goran Vlahović T 1742-1743 935 Goran Vlahović T 1743 1762 936 Goran Vlahović T 1744 937 Miloica Vlahović T 1542-1543 938 Miloica Vlahović 1544 1554 1568 1574 1614 P28 Photograph of Milovan Vlahović P29 Photograph of Milka Vlahović 929 Case No IT-04-84-T 114 3 April 2008 parents’ house 939 Miloica Vlahović testified that by 21 April 1998 his parents were among the few Serbs remaining in Gornji Ratiš Ratishë ë Eperm and Dašinovac Dashinoc 940 On 22 April 1998 the witness heard from his brother that his parents were still at home that day around 6 00 a m when the brother left the house to go to work 941 When the witness on that day wanted to go and get his parents he was told by a police officer in Dečani Deçan that it was not safe 942 The witness asked Tafilj Kuqi a neighbour from Gornji Ratiš Ratishë ë Eperm to check up on his parents 943 On or about 24 April 1998 Tafilj Kuqi went to Gornji Ratiš Ratishë ë Eperm 944 Kuqi later told the witness that he was stopped in Prilep Prelep and Prekoluka Prekollukë in Dečani Deçan municipality by armed KLA members in uniform who wanted to take him to Glođane Gllogjan to join the KLA 945 Kuqi only got to Prekoluka Prekollukë and did not see the witness’s parents 946 Later the witness asked Mehmet Goga from Dečani Deçan who owned property close to the witness’ parents’ home to check up on his parents 947 The witness met Goga again in Dečani Deçan three or four days later and heard that Goga had seen his parents 948 They were guarded by armed men and could not leave their house 949 Later Faza Haradinaj a former neighbour from Gornji Ratiš Ratishë ë Eperm also saw the witness’s parents in their house 950 She confirmed to the witness that they were not allowed to leave the house 951 In the beginning of September 1998 the witness heard from Saban Sadikaj that his parents were in their house for 10 or 15 days after 21 April 1998 952 A man called Arifaj Madjun one of the witness’s neighbours from Gornji Ratiš Ratishë ë Eperm told the witness that when he was on the road between Gornji Ratiš Ratishë ë Eperm and Rznić Irzniq he saw that the witness’s parents and Milica Radunović were taken by armed and uniformed men in the direction of Rznić Irzniq 953 Madjun also told the witness that a man named Bajram or 939 Miloica Vlahović T 1573 Miloica Vlahović T 1554-1555 941 Miloica Vlahović T 1575 942 Miloica Vlahović T 1578 943 Miloica Vlahović T 1583 1643 944 Miloica Vlahović T 1583-1584 1587 1643 945 Miloica Vlahović T 1584 1643-1644 946 Miloica Vlahović T 1644 947 Miloica Vlahović T 1585 1644 948 Miloica Vlahović T 1582-1583 1644-1645 949 Miloica Vlahović T 1584-1585 1646-1648 950 Miloica Vlahović T 1585-1586 1649-1654 See also Goran Vlahović T 1744 1746 1748 951 Miloica Vlahović T 1585-1586 1649-1654 See also Goran Vlahović T 1744 952 Miloica Vlahović T 1588 1681-1685 953 Miloica Vlahović T 1591-1592 1597-1598 1698 1703-1705 940 Case No IT-04-84-T 115 3 April 2008 Imer Ademi asked the armed men to release the witness’s parents and not to hurt them whereupon the armed men threatened to kill him 954 201 Witness 60 testified that he knew Milka Vlahović also known as Marković and Mika Radunović 955 On 23 April 1998 Xhevdet Sadikaj told the witness that he had seen them on the previous day that they were fine and that he would try to get them out of the village 956 The witness understood Sadikaj to be a member of the KLA 957 202 According to an HLC Spotlight report on 21 April 1998 the Serbian inhabitants of Gornji Ratiš Ratishë ë Eperm in Dečani Deçan municipality fled when the KLA took control of the area and found refuge at a youth centre in the town of Dečani Deçan 958 Vlahović’s daughter who had left the village with her brother on 21 April told the HLC that they had tried to return the next day to collect their parents but were turned back by KLA members 959 203 On 6 September 1998 Rade Vlahović son of Milovan and Milka Vlahović filed a report with the Đakovica Gjakovë MUP alleging that on 21 April 1998 unidentified Albanians entered his family house and took his two parents 960 204 Witness 28 a researcher for a humanitarian organization 961 gave evidence that Nada Vlahović daughter of Milovan and Milka Vlahović informed her that during the night of 20 April 1998 the KLA shot at Serb houses in Gornji Ratiš Ratishë from Glođane Gllogjan in Dečani Deçan municipality 962 On 21 April 1998 the KLA and armed civilians entered the village in tractors and trucks armed with grenade launchers rifles and mortars shooting into the air in front of the houses of Serbs 963 Nada Vlahović stated that some of the armed men were wearing uniforms 964 She further stated that as a result of these attacks Serbs left the village and moved to Dečani Deçan 954 Miloica Vlahović T 1593 1598 1699-1700 Witness 60 T 2249 2251 956 Witness 60 T 2249-2250 957 Witness 60 T 2248-2249 2288 958 Marijana Anđelković T 598 P6 Spotlight Report No 27 5 August 1998 part 2 1 959 Marijana Anđelković T 598 P6 Spotlight Report No 27 5 August 1998 part 2 1 960 P1181 Report of the Đakovica Gjakovë MUP Crime Police Department pp 10-11 961 P1211 Witness 28 witness statement 28 October 2007 paras 2 9 11 14 Witness 28 T 10172 962 P1211 Witness 28 witness statement 28 October 2007 para 49 Witness 28 T 10229 1023210236 963 P1211 Witness 28 witness statement 28 October 2007 para 49 Witness 28 T 10229 1023210236 964 Witness 28 T 10235 955 Case No IT-04-84-T 116 3 April 2008 and that she left the village on 21 April 1998 with her brothers 965 Nada Vlahović added that when her brothers attempted to return to the village on 22 April 1998 they were stopped at a Serbian police checkpoint 966 Nada Vlahović also said that the Albanian women and children left the village 967 205 The Trial Chamber has also received forensic medical evidence with regard to Milka Vlahović remains labelled “R-35” Branimir Aleksandrić 968 testified that on 12 September 1998 MUP divers recovered bones and a shoe later labelled as R-35 at the mouth of the lake and handed them over to the forensic team at Hotel Paštrik 969 ICMP DNA analysis concluded that the remains labelled R-35 are those of Milka Vlahović 970 An autopsy conducted on the remains on 8 December 2003 found no traumatic perimortem injuries 971 The cause of death was unascertained 972 206 Based on the evidence the Trial Chamber concludes that on or about 21 April 1998 the KLA took control of Gornji Ratiš Ratishë ë Eperm where Milovan and Milka Vlahović were among the last Serbs remaining The Trial Chamber has heard hearsay evidence that armed men confined the couple to their house The Trial Chamber has heard other hearsay evidence indicating that the couple was not at home The chronology of the respective hearsay evidence is not clear Milka Vlahović’s remains were found in the ravine downstream from the Radonjić Radoniq canal The forensic medical evidence does not establish the cause of her death The remains of Milovan Vlahović have not been recovered Considering that Milovan Vlahović has not been seen since late April or early May 1998 the Trial Chamber accepts that he is in all likelihood dead However there is insufficient evidence before the Trial Chamber to make a finding beyond a reasonable doubt that either Milovan or Milka Vlahović was murdered For this reason the Trial Chamber concludes that all three Accused should be acquitted of Count 10 965 P1211 Witness 28 witness statement 28 October 2007 paras 49-51 Witness 28 T 10226-10229 10235 966 P1211 Witness 28 witness statement 28 October 2007 paras 49-51 Witness 28 T 10229-10231 967 P1211 Witness 28 witness statement 28 October 2007 para 50 Witness 28 T 10196 968 P1260 Branimir Aleksandrić witness statement 26 June 2007 p 1 paras 1 4 6 9 11-12 245 Branimir Aleksandrić T 6732-6733 6737 P1113 Annex A to Branimir Aleksandrić witness statement 26 June 2007 p 1 P1114 Annex B to Branimir Aleksandrić witness statement 26 June 2007 969 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 246-247 251 P773 Autopsy photographs R35 p 2-3 P1133 Photograph R35 bones and a running shoe 970 Agreed Facts 26 November 2007 No 110 971 Agreed Facts 26 November 2007 Nos 111-112 972 Agreed Facts 26 November 2007 No 112 Case No IT-04-84-T 117 3 April 2008 6 7 Murder of Slobodan Radošević and Miloš Radunović Count 12 207 All three Accused are charged as participants in a joint criminal enterprise with the murder of Slobodan Radošević and Miloš Radunović in violation of the laws or customs of war The Trial Chamber has heard relevant evidence from a number of witnesses as well as forensic medical evidence 208 Staniša Radošević a Serbian from the village of Dašinovac Dasinoc in Dečani Deçan municipality 973 testified that when he arrived at the family home in Dašinovac Dasinoc on 22 April 1998 he told his father Slobodan Radošević about the abduction of Staniša’s mother and his friend and his father gave him a gun 974 The witness informed his father that the KLA had set up checkpoints everywhere and that one could not move freely 975 His father told him that he would try to go to Dečani Deçan through the woods after nightfall whereupon the witness left his father in the house see section 6 4 above 976 This was the last time that the witness saw his father alive 977 The next morning the witness’s friend Slaviša Marković told the witness that he had come from Dašinovac Dasinoc that he had heard a lot of gunfire around 7 00 the evening before that there must have been an attack at the witness’s family home and that Slobodan Radošević had probably been captured or killed 978 Another friend of the witness informed him that he had seen KLA soldiers taking Slobodan Radošević along with Miloš Radunović towards Požar Pozhare in a car although the witness believed that they were travelling on from there to Glođane Gllogjan 979 The friend could see that they had been beaten up 980 When the friend tried to stop the soldiers he was beaten 981 The friend later heard that Slobodan Radošević and Miloš Radunović had been killed their bodies thrown by the road near what the witness called the “Linkun Put location” 982 Three or four months later the friend went there to put 973 Staniša Radošević T 956 D5 Staniša Radošević witness statement 23 August 2005 p 1 Staniša Radošević T 984 1011 1020 1022 P5 Incident reports by the Humanitarian Law Center 5 May 1998 p 15 975 Staniša Radošević T 985 976 Staniša Radošević T 985 977 Staniša Radošević T 988 978 Staniša Radošević T 988-989 979 Staniša Radošević T 996-997 1001-1003 1005-1006 1082 980 Staniša Radošević T 1005 981 Staniša Radošević T 1006 982 Staniša Radošević T 1006 974 Case No IT-04-84-T 118 3 April 2008 earth over the bodies 983 On 9 September 1998 Zoran Nikić and Vule Mircić two policemen from Dečani Deçan informed the witness that they had found the body of Slobodan Radošević by the side of the road near the village of Dašinovac Dasinoc on the “Ninka Road” 984 209 Witness 60 testified that he last saw Slobodan Radošević alive around 15-16 April 1998 and Miloš Radunović alive close to 4 00 p m on 22 April 1998 when he left the witness’s house to bike to Radošević’s house 985 On 23 April 1998 Xhevdet Sadikaj informed the witness that on the previous day certain men “from Glođane Gllogjan” had caught Miloš Radunović as he biked past Sadikaj’s house 986 Sadikaj further informed the witness that they drove to Miloš Radunović’s house showed him weapons they had found in his house and headed to Slobodan Radošević’s house to catch him too 987 About ten to fifteen minutes after Miloš Radunović left the witness’s house the witness who was in the yard outside his house heard lots of shooting from different weapons from the direction of Slobodan Radošević’s house which lasted approximately ten to fifteen minutes 988 Sadikaj informed the witness that ten to fifteen minutes later he was at the juncture between the road to Dečani Deçan and the road to Glođane Gllogjan where he saw Miloš Radunović his arm wounded and Slobodan Radošević being taken towards Glođane Gllogjan by the men from Glođane Gllogjan 989 The witness understood Sadikaj to be a member of the KLA 990 210 Quash Sadikaj a Kosovar Albanian from the village of Dašinovac Dasinoc in Dečani Deçan municipality 991 testified that all the Serbs in the village were armed in 1998 992 He also testified that Miloš Radunović and Slobodan Radošević two Serbs from the village were members of the reserve police and possessed several weapons 993 Slobodan Radošević kept his in the bunkers that he had built at the front and back of his 983 Staniša Radošević T 998 1006 Staniša Radošević T 989-990 985 Witness 60 T 2244-2245 2247 2251 P38 Map on which the witness marked the Serb houses in Dašinovac Dasinoq 986 Witness 60 T 2232-2233 2246-2247 2277 P38 Map on which the witness marked the Serb houses in Dašinovac Dasinoq 987 Witness 60 T 2247 988 Witness 60 T 2247-2248 2267-2268 2275-2277 P38 Map on which the witness marked the Serb houses in Dašinovac Dasinoq 989 Witness 60 T 2246-2247 990 Witness 60 T 2248-2249 2288 991 Quash Sadikaj T 2876 992 Quash Sadikaj T 2878-2879 993 Quash Sadikaj T 2877-2878 2907-2908 984 Case No IT-04-84-T 119 3 April 2008 house 994 At some point in time the trees close to the witness’s house were burnt down and the witness overheard Miloš Radunović and Slobodan Radošević saying that this was now “clear territory” which the witness understood to mean that there was a clear view for shooting 995 One day the witness was in his courtyard and saw five or six armed men three of which were wearing VJ uniforms next to a white car about 200300 metres away 996 The men were talking to Miloš Radunović in Albanian and Serbian 997 They first walked towards Miloš Radunović’s house then returned and headed for Slobodan Radošević’s house which was situated 800 metres from the witness’s house 998 More than half an hour later the witness heard five to six shots over the course of three or four minutes from the direction of Slobodan Radošević’s house 999 The witness described what he heard as an exchange of fire 1000 The witness also heard artillery fire throughout the following night from the direction of Dečani Deçan 1001 Two or three days later someone told people in the witness’s village although not the witness himself that he had seen two corpses about two kilometres away in the territory of Kodralija Kodrali though he did not know who they were 1002 A few weeks later the witness heard on television that the bodies were those of Slobodan Radošević and Miloš Radunović 1003 211 Miloica Vlahović testified that on 22 April 1998 in Đakovica Gjakovë he heard from policemen that Miloš Radunović and Slobodan Radošević were arrested by Albanians which the witness understood to mean the KLA 1004 212 Rrustem Tetaj testified that he heard two different versions about what had happened to two Serbs called Miloš and Slobodan from Dašinovac Dasinoc in Dečani Deçan municipality in late April or the beginning of May 1998 1005 The first one which the witness heard from Deli Lekaj the KLA commander of Ljumbarda Lumbardh was that Lekaj and his soldiers Haxh Lekaj Zimer Ukaj Sami 994 Quash Sadikaj T 2908 Quash Sadikaj T 2879-2881 2909 996 Quash Sadikaj T 2890 2911 997 Quash Sadikaj T 2890 998 Quash Sadikaj T 2890-2891 2911 999 Quash Sadikaj T 2891-2892 1000 Quash Sadikaj T 2909-2912 1001 Quash Sadikaj T 2904 2912-2913 1002 Quash Sadikaj T 2893-2895 2897 2904 1003 Quash Sadikaj T 2893 2899-2901 1004 Miloica Vlahović T 1577-1578 1005 P265 Rrustem Tetaj witness statement 17 April 2007 para 31 Rrustem Tetaj T 3696-3698 3767 995 Case No IT-04-84-T 120 3 April 2008 Lekaj and others armed and dressed in KLA uniforms went to the village of Dašinovac Dasinoc and entered Slobodan’s house in order to loot it 1006 Deli Lekaj was injured when they were shot at upon entering the house and Slobodan was killed when the KLA soldiers shot back 1007 The second version had it that Deli Lekaj’s group went to the house of Slobodan who in turn went to get Miloš who at the time was visiting an Albanian neighbour 1008 Slobodan and Miloš then went to Slobodan’s house where Slobodan shot Deli Lekaj 1009 As a result the group apprehended Slobodan and Miloš and brought them to Glođane Gllogjan 1010 When Toger heard that Slobodan had shot Lekaj in the leg he pulled out his pistol and shot Slobodan in the leg 1011 Haradinaj then ordered the two men to be taken to Prilep Prelep in Dečani Deçan municipality where they could join the Serbian forces 1012 However since the KLA in Prilep Prelep feared that the Serbian MUP and VJ would retaliate when they found that a Serbian had been shot they brought the men back to Dašinovac Dasinoc where their bodies were found in front of their houses two days later 1013 Tetaj did not remember who he had heard the second version from and had no further information that could confirm it 1014 213 Ismet Kadrijaj testified that in April 1998 he accompanied Deli Lekaj to the village of Dašinovac Dashinoc in Dečani Deçan municipality 1015 The witness was wearing civilian clothes and Deli Lekaj was wearing a KLA camouflage uniform both men were armed with Kalashnikovs 1016 Upon noticing that the checkpoint at Dašinovac Dashinoc on the Požar Pozhare- Dašinovac Dashinoc road was unmanned Deli Lekaj stopped and exited the vehicle three or four metres from the checkpoint 1017 At this moment the witness heard gun-fire 1018 The witness saw that Deli Lekaj had been shot in the rear upper leg 1019 The witness did not see who had shot Deli Lekaj nor 1006 P265 Rrustem Tetaj witness statement 17 April 2007 para 31 Rrustem Tetaj T 3697-3698 3767-3769 1007 P265 Rrustem Tetaj witness statement 17 April 2007 para 32 Rrustem Tetaj T 3697-3698 3767 3769 1008 Rrustem Tetaj T 3697-3699 1009 Rrustem Tetaj T 3697-3699 3769 1010 Rrustem Tetaj T 3697-3699 1011 Rrustem Tetaj T 3698-3699 1012 Rrustem Tetaj T 3698-3699 1013 Rrustem Tetaj T 3698-3699 1014 Rrustem Tetaj T 3699 3767 1015 P1233 Ismet Kadrijaj witness statement 28 October 2004 paras 16 18 Appendix to witness statement 19 April 2007 para 8 1016 P1233 Ismet Kadrijaj witness statement 28 October 2004 para 17 1017 P1233 Ismet Kadrijaj witness statement 28 October 2004 para 18 19 1018 P1233 Ismet Kadrijaj witness statement 28 October 2004 para 19 1019 P1233 Ismet Kadrijaj witness statement 28 October 2004 paras 19 21 Case No IT-04-84-T 121 3 April 2008 from what direction the shot had come 1020 The witness left immediately driving Deli Lekaj to Požar Pozhare in Dečani Deçan municipality where Deli Lekaj received medical attention 1021 214 Zvonko Marković testified that in the summer of 1998 he and seven other policemen were led by a young Albanian man to a place called Vidište at the entrance to Dašinovac Dasinoc in Dečani Deçan municipality There they discovered the bodies of Miloš Radunović Dašinovac Dasinoc and 1022 Slobodan Radošević by the road leading to Following this discovery what the witness believed to be uniformed forensic technicians arrived at the site and conducted an on-site investigation 1023 The witness had heard that Miloš Radunović and Slobodan Radošević were killed by the “terrorists” 1024 215 According to information gathered by a human rights monitor for the HLC Marijana Anđelković in interviews with Radunović’s daughter-in-law and other villagers on 22 April 1998 the KLA took control of Dašinovac Dashinoc village in Dečani Deçan municipality most of the Serbian inhabitants had fled the village the day before 1025 Slobodan Radošević Milica and Miloš Radunović and the Marković family remained 1026 Rosa and Staniša Radošević tried to return to collect Slobodan Radošević the next day but were stopped by the KLA at a checkpoint in Požar Pozhare in Dečani Deçan municipality from there they were taken to KLA headquarters in Glođane Gllogjan in Dečani Deçan municipality where Staniša Radošević was physically abused by KLA members 1027 They were released but they were not allowed to continue to Dašinovac Dashinoc 1028 216 On 6 September 1998 Ljubiša Radunović son of Miloš and Milica Radunović filed a report with the Đakovica Gjakovë MUP alleging that around 3 00 p m on 24 April 1998 unidentified Albanians entered his family house and took his parents 1029 1020 P1233 Ismet Kadrijaj witness statement 28 October 2004 paras 19 24 P1233 Ismet Kadrijaj witness statement 28 October 2004 paras 20-22 24 1022 Zvonko Marković T 2329-2331 See also P39 Video showing the places where the bodies of Miloš Radunović and Slobodan Rašović were found See also P380 Nebojša Avramović witness statement 4 June 2007 para 75 P402 Map indicating the crime site at Bandera 1023 Zvonko Marković T 2331 1024 Zvonko Marković T 2329 1025 Marijana Anđelković T 598-599 P6 Spotlight Report No 27 5 August 1998 part 2 2 1026 Marijana Anđelković T 598 P6 Spotlight Report No 27 5 August 1998 part 2 2 See also P1211 Witness 28 witness statement 28 October 2007 paras 45 51 1027 Marijana Anđelković T 598-599 P6 Spotlight Report No 27 5 August 1998 part 2 2 1028 Marijana Anđelković T 599 P6 Spotlight Report No 27 5 August 1998 part 2 2 1029 P1181 Report of the Đakovica Gjakovë MUP Crime Police Department pp 8-9 1021 Case No IT-04-84-T 122 3 April 2008 217 The Trial Chamber has also received forensic medical evidence with regard to Slobodan Radošević remains labelled “D-2” and Miloš Radunović remains labelled “D-1” and certain other remains Dušan Dunjić 1030 testified that upon the forensic team’s arrival on 11 September 1998 Judge Gojković handed the team a large plastic bag containing human bones clothing and other items 1031 Judge Gojković informed the witness that the MUP had found the remains somewhere in or near the village of Dašinovac Dashinoc in Dečani Deçan municipality 1032 The investigators removed the remains from Dašinovac Dashinoc because the area was too dangerous for the forensic team to work 1033 The team initially labelled the remains and some of the items from the bag D-1 1034 The remains consisted of bone fragments belonging to at least three individuals so the team labelled them D-1a D-1b and D-1c 1035 Later the team relabelled them D-1 D-2 and D-3 1036 ICMP DNA analysis concluded that the remains labelled D-1 are those of Miloš Radunović 1037 An autopsy conducted on the remains on 17 October 2005 identified one of the bones found as one fragment of the left side of the frontal bone 1038 The cause of death was unascertained 1039 ICMP DNA analysis also concluded that the remains labelled D-2 are those of Slobodan Radošević 1040 An autopsy conducted on the remains on 8 December 2003 found a completely skeletonized part of the left parietal bone with a gunshot injury 1041 The autopsy concluded that the cause of death was a gunshot injury to the head 1042 Later ICMP DNA analysis concluded that certain other human remains were also likely to belong to Slobodan Radošević 1043 An autopsy conducted on those remains found a defect in the leg 1030 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 1031 P618 Dušan Dunjić witness statement 8 June 2007 paras 63 126 180 683 Dušan Dunjić T 6849-6850 P630 Record of exhumations 16 September 1998 p 3 See also P1260 Branimir Aleksandrić witness statement 26 June 2007 para 252 1032 P618 Dušan Dunjić witness statement 8 June 2007 paras 63 126 180 683 P636 Photographs of Dašinovac Dashinoc site pp 1-22 See also P1260 Branimir Aleksandrić witness statement 26 June 2007 para 252 1033 P618 Dušan Dunjić witness statement 8 June 2007 para 70 1034 P618 Dušan Dunjić witness statement 8 June 2007 paras 64 66 685-686 1035 P618 Dušan Dunjić witness statement 8 June 2007 paras 68 686 688 P817 Autopsy report Dašinovac Dashinoc remains pp 3-4 1036 P618 Dušan Dunjić witness statement 8 June 2007 para 69 1037 Agreed Facts 26 November 2007 No 113 1038 Agreed Facts 26 November 2007 Nos 115-116 1039 Agreed Facts 26 November 2007 No 116 1040 Agreed Facts 26 November 2007 No 117 1041 Agreed Facts 26 November 2007 Nos 118-119 1042 Agreed Facts 26 November 2007 No 120 1043 Agreed Facts 26 November 2007 No 121 Case No IT-04-84-T 123 3 April 2008 consistent with a gunshot wound 1044 Though not immediately fatal if left untreated the victim could have died from blood loss and other complications 1045 218 In evaluating the evidence in relation to Count 12 the Trial Chamber faced considerable problems as a result of the low level of reliability and credibility of some of the testimonies Similarly the Trial Chamber has serious doubts concerning the candour of some of these testimonies This doubt stems from the evasive reactions of some of the witnesses when confronted with their possible involvement in police activities and in the events leading to the death of Slobodan Radošević and Miloš Radunović Moreover the evidence contains inconsistencies surrounding the circumstances under which Slobodan Radošević and Miloš Radunović were last seen As a result the evidence fails to provide a clear picture as to what happened to Slobodan Radošević and Miloš Radunović 219 Slobodan Radošević and Miloš Radunović were from Dašinovac Dashinoc When most Serbs left the village on 21 April 1998 they were among those who stayed On 22 April 1998 the KLA took control of the village Quash Sadikaj testified that on an unspecified day he saw five or six armed men three in VJ uniforms talking to Miloš Radunović in the village The witness saw the men walking towards Slobodan Radošević’s house More than half an hour later he heard five or six shots in what he described as an exchange of fire coming from the direction of that house Witness 60 testified that Xhevdet Sadikaj had told him that on 22 April 1998 men “from Glođane Gllogjan” had taken Miloš Radunović first to his house confronted him with the weapons they had found in his house and then headed to Slobodan Radošević’s house Witness 60 who was in Dašinovac Dashinoc on this day testified that he heard an exchange of fire lasting approximately 10 to 15 minutes and coming from the direction of Slobodan Radošević’s house Staniša Radošević testified that his friend Slaviša Marković had told him that he had heard “a lot of gunfire” in the village on the evening of 22 April 1998 Rrustem Tetaj testified that he had been told by Deli Lekaj the KLA commander of Ljumbarda Lumbardh that Lekaj had been injured in an exchange of fire and that Slobodan Radošević had been killed Deli Lekaj had told Rrustem Tetaj that they had gone to Slobodan Radošević’s house to loot it Upon entering the house they were shot at Deli Lekaj was injured and Slobodan Radošević 1044 1045 Agreed Facts 26 November 2007 No 123 Agreed Facts 26 November 2007 No 123 Case No IT-04-84-T 124 3 April 2008 was killed when the KLA soldiers fired back Ismet Kadrijaj testified that Deli Lekaj was shot in the leg in Dašinovac Dashinoc in April 1998 although he does not link this event to the killing of Slobodan Radošević Rrustem Tetaj also testified that he had heard another version of what happened to the two men involving both Ramush Haradinaj and Idriz Balaj Although the forensic medical evidence provided some objective support for this version in the light of the fact that Tetaj failed to provide a source for it the Trial Chamber will not rely on the testimony of Rrustem Tetaj in this respect 220 The Trial Chamber has heard hearsay evidence of the two men being taken from their village Staniša Radošević testified that a friend had told him that he had seen KLA soldiers taking the two men towards Požar Pozhare in a car This friend also told him that the two men had been beaten Witness 60 testified that Xhevdet Sadikaj had told him that he had seen men from Glođane Gllogjan taking the two men towards Glođane Gllogjan and that Miloš Radunović was wounded in the arm However none of the witnesses who were present in Dašinovac Dashinoc on 22 April testified to having seen the two men being taken away 221 In September 1998 the bodies of the two men were found by a road near Dašinovac Dashinoc According to the forensic medical evidence the cause of death for Slobodan Radošević was a gunshot to the head while the cause of death for Miloš Radunović could not be established The Trial Chamber concludes that the men seen with Miloš Radunović on 22 April 1998 were KLA soldiers or affiliated with the KLA However based on the evidence the Trial Chamber cannot draw any conclusions about why these men approached Slobodan Radošević and Miloš Radunović on that day or about the circumstances under which the two Serb men were killed The Trial Chamber can therefore not conclude beyond a reasonable doubt that the two men were murdered or exclude that the two men took an active part in the hostilities at the time of their death The Trial Chamber concludes that all three Accused should be acquitted of Count 12 6 8 Cruel treatment and murder of the relatives of Witness 4 and Witness 19 Count 14 222 All three Accused are charged as participants in a joint criminal enterprise with cruel treatment and murder of the relatives of Witness 4 and Witness 19 in violation of Case No IT-04-84-T 125 3 April 2008 the laws or customs of war In the alternative Idriz Balaj is charged with the commission of or planning instigating or aiding and abetting the commission of the crimes The Trial Chamber has heard relevant evidence from Witness 4 and Witness 19 and a number of other witnesses as well as forensic medical evidence 223 Witness 19 testified that on 2 March 1998 on the village road into Donji Ratiš Ratishë ë Ultë in Dečani Deçan municipality near the Orthodox Church of the Holy Trinity unidentified persons fired several bullets at a red Lada car carrying Witness 19’s mother Witness 4 and Slobodan Praščević a Serbian police officer and friend of Witness 19’s family Slobodan Praščević was killed the mother was injured and Witness 4 escaped unharmed 1046 From that day and more regularly beginning approximately one month later Witness 19 saw armed soldiers wearing black or camouflage clothes and KLA insignia walking or driving cars in his village 1047 Certain men wearing “black KLA clothes” some of whom Witness 19 identified by name began to come to his house 1048 At first these small groups of men came approximately two or three times per week during the day-time although after approximately one month they began to come more often 1049 The men asked Witness 19’s family about his ties with Slobodan Praščević 1050 They also asked for weapons but the family did not possess any 1051 After the first two or three visits the men began to search the house mostly at night which frightened Witness 19 1052 They wore masks introduced themselves as a special unit of the night and said that they were looking for weapons 1053 224 Witness 19 testified that one morning in the summer of 1998 he learned from his mother that the previous evening around 10 00-11 00 p m while Witness 19 was asleep between three and five masked men had come to the family house 1054 Witness 19’s mother told him that they included a man who wore his mask “on his head” and 1046 Witness 19 T 1137 1139-1145 P22 Criminal report by the police station in Đakovica Gjakovë 4 March 1998 1047 Witness 19 T 1146-1149 1166 1291 P9 KLA insignia P22 Criminal report by the police station in Đakovica Gjakovë 4 March 1998 1048 Witness 19 T 1149-1150 1291 1049 Witness 19 T 1151 1050 Witness 19 T 1151 1051 Witness 19 T 1151-1152 1052 Witness 19 T 1152-1154 1053 Witness 19 T 1154 1054 Witness 19 T 1137 1156-1157 1163 Case No IT-04-84-T 126 3 April 2008 presented himself as “Toger” 1055 When the masked men left according to the mother they took Witness 19’s sister “S” with them stating that she had to join the KLA 1056 About a week later Witness 19 saw the man named “Toger” for the first time 1057 The witness’s mother told Witness 19 that the real name of “Toger” was “Idriz Balaj” 1058 “Toger” came to the family home in a black vehicle accompanied by two or three other men wearing black uniforms with KLA insignia and carrying arms 1059 They brought sister “S” home for a visit that lasted approximately 20-30 minutes 1060 Sister “S” wore the same black uniform and KLA insignia as the men who brought her 1061 During the full time of the visit Witness 19 saw “Toger” who was not wearing a mask and heard him speak and introduce himself 1062 During the entire visit sister “S” was accompanied by “Toger” which prevented the family from speaking freely with sister “S” 1063 Witness 19 testified to being told by his mother that sister “S” had told her not to ask her anything about what she was involved in because she was afraid to answer 1064 Sister “S” left accompanied by the same men and in the same vehicle in which she had arrived 1065 Approximately one to two weeks later Witness 19 saw some armed men and sister “S” arrive at the family home in a white Niva convertible car 1066 The men dropped her off and drove off immediately leaving her alone with the family during a visit that lasted between two and four hours 1067 Sister “S” said that the man named “Toger” had instructed her to return to the base by a certain time 1068 Sister “S” was not armed but wore a black uniform with KLA insignia and a pair of thumb cuffs hanging from her belt 1069 She said that she was a member of the KLA and that she took orders from “Toger” 1070 Witness 19 was not aware that sister “S” or any other family members had ever wanted to join the KLA 1071 After the visit Witness 4 walked with 1055 Witness 19 T 1157 1159-1160 Witness 19 T 1156-1157 1163 1057 Witness 19 T 1159 1163 1058 Witness 19 T 1159-1160 1059 Witness 19 T 1158-1159 1164 1313 1060 Witness 19 T 1158-1159 1163-1164 1313 1324 1061 Witness 19 T 1166 1062 Witness 19 T 1164-1165 1063 Witness 19 T 1165 1064 Witness 19 T 1166-1167 1169-1171 1065 Witness 19 T 1167 1066 Witness 19 T 1167-1168 1172 1312 1315-1320 1067 Witness 19 T 1169 1315 1068 Witness 19 T 1176-1178 1069 Witness 19 T 1172 1070 Witness 19 T 1173 1071 Witness 19 T 1174 1056 Case No IT-04-84-T 127 3 April 2008 sister “S” on her way back to the base in the village of Rznić Irzniq 1072 After their departure two or three soldiers arrived in a white Niva convertible car and one of them asked Witness 19 and his mother for sister “S” 1073 These family members answered that sister “S” was being escorted back to the base by Witness 4 1074 The soldiers then quickly drove away 1075 According to Witness 19 no one in the family ever saw sister “S” again 1076 225 After the second visit of sister “S” approximately one month passed without further visits by soldiers to the family home of Witness 19 1077 Then the visits resumed gradually reaching a frequency of approximately one to four times per week 1078 The visits were carried out by masked and armed individuals almost always wearing black uniforms with KLA insignia 1079 Among them Witness 19 occasionally recognized the man named “Toger” when he rolled his mask up over his face 1080 About five to six months after the disappearance of sister “S” one night between approximately midnight and 1 00 a m masked and armed men wearing uniforms and holding flashlights knocked on the door of the family house 1081 Witness 19 was behind his mother who answered the door 1082 The men told her that they had been ordered to take her with them because she had to give a statement and sign something 1083 The witness’s mother left with the men after which Witness 19 and his family never saw her again 1084 After the departure of the witness’s mother the visits ceased until one night in the autumn of 1998 around ten armed and masked men wearing black uniforms and holding flashlights entered the family house by breaking down a door 1085 They told the sleeping family members to get up and then put them against a wall 1086 Among these men and by the light of a flashlight Witness 19 saw and recognized the face of “Toger” when he 1072 Witness 19 T 1175-1177 1315 1320 Witness 19 T 1178-1179 1315 1317 1320-1323 1074 Witness 19 T 1178-1179 1317 1075 Witness 19 T 1178-1179 1317 1076 Witness 19 T 1180 1077 Witness 19 T 1182 1184-1185 1078 Witness 19 T 1182 1185 1079 Witness 19 T 1182 1186-1187 1080 Witness 19 T 1182-1183 1186-1188 1081 Witness 19 T 1189-1192 1082 Witness 19 T 1191 1083 Witness 19 T 1191 1084 Witness 19 T 1189 1192 1085 Witness 19 T 1201-1202 1208 1086 Witness 19 T 1202 1073 Case No IT-04-84-T 128 3 April 2008 raised his mask 1087 In particular Witness 19 noticed a scar on his upper lip 1088 The scar was a bit longer than one centimetre and between half a centimetre and one centimetre in width 1089 The visit lasted approximately 15-20 minutes 1090 Upon leaving the men took Witness 19’s sister “M” who was crying with her hands tied behind her back with them while “Toger” held her by her right hand 1091 Approximately one week later a relative of Witness 19 and others brought the dead body of sister “M” found in the woods near Bardonić Bardhaniq village to the family home 1092 Witness 19 saw a wound behind one of her ears and holes in and blood on her jacket 1093 The family buried sister “M” the following day and immediately moved away from the family home out of fear caused by the repeated disappearances or killings of family members 1094 226 No official record available to the Trial Chamber indicated that any investigator of the Tribunal had ever shown a photo board to Witness 19 for the purpose of testing whether he could identify the Accused Idriz Balaj 1095 However Witness 19 testified that this had happened at the beginning of an interview conducted in July 2004 in an office in Priština Prishtinë 1096 One investigator and one interpreter were present 1097 The photo board contained approximately ten small photographs from the shoulders and above lined up on one piece of paper 1098 Witness 19 recognized in a photograph one person whom he identified as “Toger” and pointed this out to the investigator 1099 When the statement of Witness 19 was read back to him he did not remark upon the absence in it of any reference to the photo board 1100 227 Witness 4 testified that sometime in the beginning of 1998 he and his mother were in a private car together with Slobodan Praščević a Serbian police officer and a friend of the family 1101 Approximately one hundred metres from the home of Witness 1087 Witness 19 T 1213-1214 1328 Witness 19 T 1214 1328 1089 Witness 19 T 1328-1330 1090 Witness 19 T 1328 1091 Witness 19 T 1137 1215 1092 Witness 19 T 1217 1093 Witness 19 T 1217-1218 1332-1335 1094 Witness 19 T 1219 1348-1349 1095 Witness 19 T 1226 1230-1231 1236 1238-1239 1096 Witness 19 T 1229-1230 1235 1097 Witness 19 T 1245-1246 1098 Witness 19 T 1234-1236 1099 Witness 19 T 1229-1230 1234-1236 1100 Witness 19 T 1236-1237 1101 Witness 4 T 1409-1410 1415 1088 Case No IT-04-84-T 129 3 April 2008 4 two men in masks and black clothes opened fire at the vehicle 1102 The men were approximately seven to ten metres from the car 1103 The car went off the road and when it stopped the witness managed to escape 1104 He learned later that Praščević had been killed in this incident and that his mother had been injured and treated in a hospital in Peć Pejë for about two weeks 1105 According to a contemporary police report this incident took place on 2 March 1998 1106 One evening at approximately 10 30 p m in the beginning of April 1998 a group of men came to the family house of Witness 4 1107 The men who were speaking Albanian wore either civilian or military clothes and wore masks or had painted faces 1108 The witness was told by his mother the next day that the men had searched the house for weapons and demanded money from the family 1109 One or two weeks later at approximately 10 00 p m some men came to the house 1110 One man standing guard outside the room where the witness had been sleeping wore army clothes and a mask and was armed 1111 The witness heard one of the men repeat the name “Toger” over and over again 1112 His mother told him the next day that one of the men had presented himself as Toger 1113 She also told him that the men had taken with them one of the witness’s sisters sister “S” with the reason given by Toger that every family needed to have a soldier in the army 1114 The witness did not personally identify Toger 1115 Four days later sister “S” came back to the house in the company of Toger 1116 Both Toger and the sister were wearing black military clothes and the sister had KLA insignia on her arm 1117 The sister told the family that she had been brought home to take some clothes and that she was staying at the old school in Rznić Irzniq where according to the sister the KLA was staying 1118 After this first visit to the family which lasted 30 to 40 minutes the witness saw that the sister left 1102 Witness 4 T 1411-1412 1415-1416 1418 1420 Witness 4 T 1416 1104 Witness 4 T 1417-1419 P24 Photographs of a crashed car 1105 Witness 4 T 1419-1421 1106 P22 Criminal report by the police station in Đakovica Gjakovë 4 March 1998 1107 Witness 4 T 1422 1108 Witness 4 T 1422-1424 1109 Witness 4 T 1424-1426 1110 Witness 4 T 1427-1428 1111 Witness 4 T 1429-1430 1501 1112 Witness 4 T 1429-1430 1501 1113 Witness 4 T 1431 1114 Witness 4 T 1430-1432 1115 Witness 4 T 1503 1116 Witness 4 T 1432-1433 1504 1117 Witness 4 T 1433-1436 P9 KLA insignia 1118 Witness 4 T 1435 1437-1439 1103 Case No IT-04-84-T 130 3 April 2008 with Toger in his Niva car 1119 Approximately one or two weeks later Toger brought sister “S” back to the family home and then he drove away again 1120 The sister told the family that there was a prison run by the KLA in the village of Rznić Irzniq where she had seen prisoners 1121 Sister “S” also said that she had received orders from Toger to kill somebody and if she didn’t kill him Toger would kill her 1122 When sister “S” left Witness 4 accompanied her for around 25 minutes part of the way towards Rznić Irzniq and approximately 10-15 minutes after he returned home Toger and one other person arrived in a car 1123 Toger asked the witness why his sister was late and the witness responded that the sister had already left 1124 It was around 4 00 p m and the witness could clearly see Toger’s face as they spoke 1125 The witness never saw sister “S” again after this second visit 1126 228 Witness 4 testified that Toger Aslan Rexhepi Sokol Zefi and Arush Islami came to the family house about two or three weeks after the second visit of sister “S” Rexhepi told the witness’s mother that she could not receive any permission to travel because her husband used to work with the Serbian police and if she tried to go anywhere she would be killed 1127 About a week later Toger and three or four other persons came to the witness’s house 1128 Toger was dressed in black clothes with KLA insignia and was not wearing a mask 1129 Toger asked the witness’s mother about the whereabouts of the witness’s brother who at the time was in prison 1130 The men then took the mother away and the witness has not seen her since 1131 One night the witness did not specify the date Toger and some other soldiers including Xhevat Islami came to the witness’s home and broke down the door 1132 Toger was wearing black clothes and Xhevat Islami was wearing camouflage military clothes of a kind that according to the witness the KLA wore 1133 Both were armed and Islami was wearing a mask 1134 1119 Witness 4 T 1439-1440 1504 Witness 4 T 1440-1441 1505 1121 Witness 4 T 1441 1122 Witness 4 T 1442 1123 Witness 4 T 1442-1443 1506-1507 1124 Witness 4 T 1443-1440 1507 1125 Witness 4 T 1443-1444 1126 Witness 4 T 1444 1127 Witness 4 T 1445 1452-1453 1498 1508 1516 1128 Witness 4 T 1453 1129 Witness 4 T 1453-1454 1130 Witness 4 T 1454 1131 Witness 4 T 1455 1132 Witness 4 T 1463-1464 1133 Witness 4 T 1464-1465 1120 Case No IT-04-84-T 131 3 April 2008 Islami told the family that he was Ramush Haradinaj but the family did not believe him since they knew who he was 1135 According to the witness Toger appeared to be in charge 1136 Toger went to get one of the witness’s sisters sister “M” who was dressed in black with a leather jacket and the men brought her with them 1137 The witness never saw sister “M” alive again 1138 Four days later a man from Đakovica Gjakovë municipality came to the witness and told him that he had found the body of the witness’s sister 1139 The witness went with the man to pick up the body of the sister which was lying in the forest not visible from the road somewhere between Bardonić Bardhaniq and Zabelj Zhabel 1140 The sister was not wearing shoes and was naked from the waist up with her jacket lying about one or two metres from her body 1141 The jacket was bullet ridden and full of knife cuts 1142 The witness observed knife cuts on the arm and on the throat of sister “M” and a bullet hole in her earlobe 1143 There was blood around the injuries 1144 The witness and the man from Bardonić Bardhaniq carried the sister’s body to a cart and brought her home for burial 1145 Soon thereafter the witness and the remaining members of his family left their home out of fear 1146 229 The witness testified that he saw Toger on television in 2002 in connection with an attack on Toger’s house and that he was being referred to then both as Toger and Idriz Balaj 1147 During an interview with the Office of the Prosecutor in Priština Prishtinë in 2004 Witness 4 was shown a photo board 1148 Witness 4 recognized the Accused Idriz Balaj drew a circle around his picture and signed his name beneath it 1149 Witness 19 and Witness 4 gave their statements and were shown 1134 Witness 4 T 1465-1466 Witness 4 T 1466 1531 1136 Witness 4 T 1533-1534 1137 Witness 4 T 1467 1138 Witness 4 T 1468 1139 Witness 4 T 1468-1469 1140 Witness 4 T 1469-1470 1472-1473 P25 Photograph of the location where the body of Witness 4’s sister was found 1141 Witness 4 T 1473-1475 1142 Witness 4 T 1474 1143 Witness 4 T 1473 1144 Witness 4 T 1475-1476 1145 Witness 4 T 1475-1476 1146 Witness 4 T 1479 1147 Witness 4 T 1518-1520 1148 Witness 4 T 1479 1149 Witness 4 T 1481-1482 1487 P27 Photograph identification board shown to Witness 4 during his interview 1135 Case No IT-04-84-T 132 3 April 2008 the photo boards separately 1150 Witness 4 said that Witness 19 had told him that he had been shown a photo boards but that he had not been able to recognize anyone 1151 230 José Antonio Lorenzo Quiroz a former investigator for the ICTY 1152 testified that he showed a photo board to Witness 4 during an interview in October 2004 1153 At the time Lorenzo Quiroz showed Witness 4 the photo board he was aware that Idriz Balaj had been a defendant in a trial in Kosovo Kosova and that his picture had been shown in newspapers and on television 1154 He also interviewed Witness 19 in October 2004 although on a different date than Witness 4 1155 The two were always separated during their interviews and when they were shown the photo boards 1156 Lorenzo Quiroz showed Witness 19 a photo board including Idriz Balaj during a July 2004 interview although he did not record this in the statement 1157 He explained that this was an oversight on his part 1158 He did not remember whether Witness 19 identified anybody or not 1159 Witness 19 informed Lorenzo Quiroz that he had seen Idriz Balaj in the news which reported that he had been found guilty of crimes 1160 231 Maklen Misha a language clerk at the Tribunal served as an interpreter during interviews of Witnesses 4 and 19 conducted by Tribunal investigators 1161 He stated that they had sometimes come to the interviews together 1162 He also testified that an investigator of the Tribunal had shown photo boards to each witness separately 1163 However Misha repeatedly noted that he was not sure of his memory in this regard 1164 He stated that he did not recall the reaction of either one of the witnesses to the photo boards 1165 Misha testified that photo boards are usually in the form of multiple portrait pictures placed on a landscape-oriented A4-size page although he did not remember if that had been the case with regard to Witnesses 4 and 19 1166 He stated that he did not 1150 Witness 4 T 1481 1488-1490 Witness 4 T 1491 1152 José Antonio Lorenzo Quiroz T 5862 1153 José Antonio Lorenzo Quiroz T 5873-5874 5919-5920 1154 José Antonio Lorenzo Quiroz T 5927 1155 José Antonio Lorenzo Quiroz T 5875 5917-5920 1156 José Antonio Lorenzo Quiroz T 5882-5883 1157 José Antonio Lorenzo Quiroz T 5877-5879 5912 5915-5917 5920 1158 José Antonio Lorenzo Quiroz T 5878 1159 José Antonio Lorenzo Quiroz T 5879 5920 1160 José Antonio Lorenzo Quiroz T 5928-5929 1161 Maklen Misha T 1250-1251 1162 Maklen Misha T 1251 1163 Maklen Misha T 1252 1164 Maklen Misha T 1253-1254 1256 1165 Maklen Misha T 1256-1257 1166 Maklen Misha T 1252-1253 1151 Case No IT-04-84-T 133 3 April 2008 remember ever having reviewed a witness statement that did not contain a reference to the witness having seen a photo board when the witness had indeed seen one 1167 Misha testified that usually when an investigator shows a photo board to a witness it is documented in the witness statement 1168 232 Witness 63 stated that one day in the summer of 1998 when he went to collect some wood from his forest he found the dead body of a young girl 1169 The body was in a foetal position with a pool of blood underneath her head 1170 The witness reported it to the local KLA commander and heard from one person from his village that someone from Ratiš Ratishë was asking about his missing sister 1171 The witness went to the village with a friend and finally spoke with someone who turned out to be a relative of the dead girl 1172 They all returned to the body and the relative identified it and transported it away 1173 233 According to an RDB report on 2 March 1998 around 4 00 p m Albanian “terrorists” opened fire from automatic weapons on a vehicle of “Lada” type and killed Slobodan Praščević from Đakovica Gjakovë who had previously been employed as the Commander of the Rznić Irzniq police department 1174 It is further stated in the report that a number of “terrorists” took part in the ambush on Slobodan Praščević and that one of them who was masked and had two pistols in his hands approached the vehicle after the attack and fired towards Slobodan Praščević 1175 Witness 4 and his mother who was seriously injured and hospitalized following the incident were also in the vehicle 1176 Zoran Stijović head of the Analytical Section of the Priština Prishtinë RDB Centre from 1995 until 1999 testified that the RDB had information gained from a police investigation that Slobodan Praščević was killed by the brothers of witness 4’s mother with whom he had an intimate affair 1177 According to Stijović this incident 1167 Maklen Misha T 1255 Maklen Misha T 1255 1169 P339 Witness 63 witness statement 26 April 2006 paras 4 5 1170 P339 Witness 63 witness statement 26 April 2006 para 5 1171 P339 Witness 63 witness statement 26 April 2006 paras 6 7 1172 P339 Witness 63 witness statement 26 April 2006 para 7 1173 P339 Witness 63 witness statement 26 April 2006 para 8 1174 P967 RDB official note 3 March 1998 1175 P967 RDB official note 3 March 1998 1176 P967 RDB official note 3 March 1998 1177 Zoran Stijović T 9062-9064 1168 Case No IT-04-84-T 134 3 April 2008 was not connected with the KLA although the KLA later tried to portray it as its own doing 1178 234 The Trial Chamber has also received forensic medical evidence with regards to sister “S” remains labelled “R-12” the mother of Witness 4 remains labelled “R-11” and sister “M” remains labelled “ACL02-001B” Branimir Aleksandrić 1179 testified that bodies R-11 and R-12 were recovered on 12 September 1998 1180 The bodies were found with their heads next to each other 1181 A rusty piece of barbed wire of 2 5 metres in length and tied in a sliding noose on one end were found beside these bodies 1182 It could not be determined to which body the barbed wire belonged or whether it had been wrapped around a body part 1183 However since the wire was found closer to body R12 it was packed in the body bag of R-12 1184 Long black hair and putrefied soft tissue which could not be attributed to one of the bodies were tangled in the thorns of the wire 1185 Dušan Dunjić 1186 testified that a 313 centimetre long piece of barbed wire was found next to the body with one end fashioned into a noose 1187 Dark hairs similar in quality colour and length to those found alongside the skull of the body were found on the barbed wire 1188 This similarity was established by macroscopic examination 1189 According to the witness the only explanation for the presence of the hairs on the wire is that the wire had been in contact with a person 1190 ICMP DNA analysis identified the 1178 Zoran Stijović T 9062-9064 P1260 Branimir Aleksandrić witness statement 26 June 2007 p 1 paras 1 4 6 9 11-12 245 Branimir Aleksandrić T 6732-6733 6737 P1113 Annex A to Branimir Aleksandrić witness statement 26 June 2007 p 1 P1114 Annex B to Branimir Aleksandrić witness statement 26 June 2007 1180 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 128-129 203-204 1181 P1260 Branimir Aleksandrić witness statement 26 June 2007 para 72 Branimir Aleksandrić T 6759-6761 P414 Various photographs p 4 1182 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 72 83 86-87 Branimir Aleksandrić T 6761 6764 P452 Video of the body recovery at canal 0 27’25” - 0 30’15” 0 32’26” 0 33’00” P686 Autopsy photographs R-12 p 2 middle photograph p 6 1183 P1260 Branimir Aleksandrić witness statement 26 June 2007 para 81 Branimir Aleksandrić T 6761-6762 1184 Branimir Aleksandrić T 6761 6764-6765 6787-6788 P686 Autopsy photographs R-12 p 2 middle photograph 1185 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 72 82 P686 Autopsy photographs R-12 p 5 1186 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 1187 Dušan Dunjić T 6832-6833 P630 Record of exhumations 16 September 1998 p 2 P684 Autopsy report R-12 p 3 P686 Photographs R-12 pp 2 5 1188 Dušan Dunjić T 6833-6835 7274-7275 P630 Record of exhumations 16 September 1998 p 2 P684 Autopsy report R-12 p 3 1189 Dušan Dunjić T 6835 7274-7275 7353-7355 1190 Dušan Dunjić T 6833-6834 1179 Case No IT-04-84-T 135 3 April 2008 remains labelled R-12 as those of sister “S” of witness 4 1191 An autopsy conducted on the remains on 8 December 2003 revealed possible gunshot injuries to the chest fractures in the spine a gunshot injury to the left arm the right elbow the pelvic region and the right leg 1192 The cause of death was determined as gunshot injuries to the chest and or gunshot injuries to the lower abdomen 1193 Dušan Dunjić 1194 testified that body R-12 was wearing dark blue jeans and a T-shirt 1195 An autopsy conducted on the remains in September 1998 revealed multiple fractures on the ribs fractures on both upper arms the right upper thigh and the right pelvic bone 1196 The fractures were consistent with having been caused by violent physical blows with a blunt object 1197 According to Dunjić there was no indication that these fractures were caused by bullets 1198 235 ICMP DNA analysis identified the remains labelled R-11 as those of the mother of Witness 4 1199 An autopsy conducted on the remains on 8 December 2003 which had sustained multiple fractures consistent with multiple gunshot injuries to the pelvis area 1200 In addition the autopsy revealed fractures to the left shoulder blade arms and the left forearm also consistent with multiple gunshot wounds 1201 The cause of death was determined to be a gunshot wound to the pelvis 1202 Dušan Dunjić testified that body R-11 was wearing a dark blue dress 1203 An autopsy conducted on the remains in September 1998 revealed a bullet entry wound on the left side of the abdominal region and an exit wound at the left shoulder blade and parts of the bullet were found near the vertebra 1204 The autopsy revealed multiple fractures in both arms and the lower left leg 1205 1191 Agreed Facts 26 November 2007 No 66 Agreed Facts 26 November 2007 Nos 67-68 1193 Agreed Facts 26 November 2007 No 69 1194 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 1195 P684 Autopsy report R-12 p 2 1196 P618 Dušan Dunjić witness statement 8 June 2007 para 339 P684 Autopsy report R-12 p 6 1197 P618 Dušan Dunjić witness statement 8 June 2007 para 338 1198 P618 Dušan Dunjić witness statement 8 June 2007 para 338 1199 Agreed Facts 26 November 2007 No 63 1200 Agreed Facts 26 November 2007 No 64 1201 Agreed Facts 26 November 2007 No 64 1202 Agreed Facts 26 November 2007 No 65 1203 P680 Autopy report R-11 p 2 1204 P618 Dušan Dunjić witness statement 8 June 2007 para 328 P680 Autopy report R-11 p 6 1205 P618 Dušan Dunjić witness statement 8 June 2007 para 328 P680 Autopy report R-11 p 6 1192 Case No IT-04-84-T 136 3 April 2008 236 ICMP DNA analysis identified the remains labelled ACL02-001B as those of sister “M” of witness 4 1206 An autopsy conducted on the remains on 20 October 2005 revealed extensive damage to the head and jaw including fractures consistent with a gunshot wound through the jawbone 1207 Fractures to the right arm and the spine consistent with gunshot wounds were also found 1208 The report concluded that death was caused by multiple gunshot wounds 1209 237 The Trial Chamber considers both Witness 4 and Witness 19 to be credible witnesses However it finds Witness 4 to be more reliable than Witness 19 with regard to the chronology of the events in this count than Witness 19 Approximately from the beginning of April 1998 armed men repeatedly visited the house of the two witnesses The men wore civilian military or black KLA clothes and some of them wore masks They asked about weapons and searched the house According to Witness 19 they also asked about the family’s ties to the late Serbian police officer Slobodan Praščević 238 After one late evening visit around mid-April 1998 the mother of the family told Witness 4 and Witness 19 that the armed men had left with their sister “S” explaining that she had to join the KLA Approximately four days later sister “S” came home accompanied by a person that the witnesses came to know as “Toger” They were both in black uniforms with KLA insignia According to Witness 19 there were also two or three other armed men in black uniforms with KLA insignia To the knowledge of Witness 19 sister “S” had never wanted to join the KLA Approximately one or two weeks later according to Witness 4 “Toger” dropped off sister “S” at the family house Witness 19 testified that sister “S” was dropped off by armed men and that she was again wearing a black uniform with KLA insignia According to Witness 19 sister “S” said that she was a KLA member and that she took orders from “Toger” who had instructed her to be back at the base by a certain time Witness 4 testified that sister “S” said that “Toger” had ordered her to kill somebody and that he would kill her if she did not comply According to Witness 19 two or three soldiers arrived by car to check on sister “S” after she had left home again According to Witness 4 “Toger” accompanied by another person arrived by car and asked why sister “S” was late Approximately three to four weeks later masked armed and uniformed men arrived at the home of 1206 Agreed Facts 26 November 2007 No 124 Agreed Facts 26 November 2007 Nos 125-126 1208 Agreed Facts 26 November 2007 No 126 1209 Agreed Facts 26 November 2007 No 127 1207 Case No IT-04-84-T 137 3 April 2008 Witness 4 and Witness 19 between midnight and 1 00 a m saying that they had orders to take the mother with them to sign something Witness 4 testified that one of them was “Toger” who was dressed in black with KLA insignia and who asked the mother about the brother of Witness 4 The mother was taken away by the men On the basis of this evidence the Trial Chamber is satisfied that the men who took sister “S” and the mother were KLA soldiers 239 In September 1998 the body of sister “S” R-12 and the body of the mother R- 11 were found at the Lake Radonjić Radoniq canal in immediate proximity to each other The mother was found with multiple fractures consistent with multiple gunshot wounds one of which could have caused her death Dušan Dunjić testified that sister “S” was found in dark blue jeans and a T-shirt An autopsy conducted in September 1998 found multiple fractures on her ribs her upper arms right upper thigh and right pelvic bone Dušan Dunjić testified that the fractures were consistent with violent blows from a blunt object and that he found no indication that the fractures were caused by bullets Another autopsy conducted on the same remains on 8 December 2003 found possible gunshot injuries to the chest fractures in the spine and a gunshot injury to the left arm the right elbow the pelvic region and the right leg The autopsy determined the cause of death to be gunshot injuries to the chest and or the lower abdomen Considering the forensic medical evidence the fact that the mother and sister “S” were both taken from their home by the KLA the considerable interval in time between when each of them were taken away and the fact that their bodies were nonetheless found at exactly the same spot at the Radonjić Radoniq canal the Trial Chamber concludes that KLA soldiers murdered the mother and sister “S” These circumstances and the clothing in which sister “S” was found indicate that she was not killed in combat The evidence of Witness 4 establishes that her death occurred no earlier than late April 1998 The Trial Chamber is furthermore convinced that these crimes were closely related to the armed conflict in Kosovo Kosova and that the victims were not taking active part in hostilities at the time the crimes were committed and that the perpetrators knew or should have known that this was the case 240 Some time after the KLA soldiers took the mother several armed and masked men wearing black and camouflage uniforms one of whom was “Toger” broke down the door of the family’s house at night and took sister “M” away Witness 19 testified that she was crying had her hands tied behind her back and that “Toger” held one of Case No IT-04-84-T 138 3 April 2008 her hands Her body was found approximately four days later in the woods near Bardonić Bardhaniq village According to Witness 63 this happened in the summer of 1998 On the basis of this evidence the Trial Chamber is satisfied that the men coming to the house were KLA soldiers and that sister “M” died during the indictment period Considering the coercive manner in which sister “M” was taken from her home the injuries inflicted on her body and the short time between when she was taken away by KLA soldiers and when she was found dead the Trial Chamber concludes that KLA soldiers murdered sister “M” The Trial Chamber is furthermore convinced that this crime was also closely related to the armed conflict in Kosovo Kosova and that sister “M” was not taking active part in hostilities at the time the crime was committed and that the perpetrators knew or should have known that this was the case 241 All three Accused are also charged with cruel treatment under this Count The Trial Chamber finds that the evidence is insufficient to establish beyond a reasonable doubt that any acts of cruel treatment were committed The Trial Chamber therefore concludes that the Accused should be acquitted of this charge All three Accused are charged with Count 14 as participants in a joint criminal enterprise The Trial Chamber will deal with this mode of liability separately in section 7 below Idriz Balaj is also charged in the alternative with having committed planned instigated or aided and abetted the commission of the crimes described in Count 14 242 There is no evidence before the Trial Chamber that Idriz Balaj committed planned or instigated the commission of these three murders The evidence shows that “Toger” as he introduced himself accompanied sister “S” on several occasions when and after she was recruited into the KLA and that he was also present when her mother and sister “M” were taken away As mentioned above sister “S” told Witnesses 4 and 19 that she had received several orders from “Toger” Witness 19 learned from the mother that “Toger” was Idriz Balaj Several other witnesses in this case also linked “Toger” with Idriz Balaj and their testimonies are consistent with Idriz Balaj wearing a black uniform and being in a position of some authority within the KLA 1210 Even if “Toger” means “lieutenant” in Albanian the Trial Chamber finds in the absence of any evidence indicating that any other person during the indictment period and in the Dukagjin area used that title or name or was addressed as such by others that “Toger” Case No IT-04-84-T 139 3 April 2008 is Idriz Balaj His role in accompanying sister “S” when and after she was recruited into the KLA and in taking the mother and sister “M” from their home was a link in the chain of events which led to the murders of these women It brought and kept them in the vicinity of the perpetrators The Trial Chamber cannot speculate on Idriz Balaj's further role if any in these events The Trial Chamber notes that the circumstances surrounding the three murders show not only apparent similarities but also significant differences The absence of specific evidence on the course of events after the mother and the two sisters ended up in KLA hands leaves the majority of the Trial Chamber Judge Höpfel dissenting without a sufficient basis to further assess the relevance and importance of Idriz Balaj's acts The majority finds that there is no evidence that Idriz Balaj knowingly contributed to or facilitated the commission of any of these murders especially as there is no evidence that Idriz Balaj was aware at that time that these murders were or would be committed Therefore the Trial Chamber concludes that Idriz Balaj should be acquitted of committing planning and instigating the commission of these three murders The majority also concludes Idriz Balaj should also be acquitted of aiding and abetting the commission of these murders 6 9 Cruel treatment and murder of Hajrullah Gashi and Isuf Hoxha Count 16 243 All three Accused are charged as participants in a joint criminal enterprise with cruel treatment and murder of Hajrullah Gashi and Isuf Hoxha in violation of the laws or customs of war In the alternative Ramush Haradinaj is charged with the commission of planning or aiding and abetting the commission of the crimes As explained in section 2 1 the Trial Chamber has decided not to rely on the testimony of Witness 8 and has heard relevant evidence from Radovan Zlatković as well as forensic medical evidence 244 On 6 July 1998 MUP officer Dušan Dragović wrote a report based on an interview with Vendim Hoxha concerning the disappearance of his father Isuf Hoxha on 26 June on the road between Prizren and Suva Reka Suharekë 1211 Radovan Zlatković testified that Isuf Hoxha’s son informed him that his father was kidnapped between Prizren Prizren and Suva Reka Suharekë sometime in June or July 1998 by “Albanian 1210 Shemsedin Cekaj T 4394 P1213 Ylber Haskaj witness statement 5 November 2007 para 14 Ylber Haskaj T 10339 P371 Bogdan Tomaš witness statement 24 May 2007 para 26 and other evidence as discussed in the findings on this Count and in section 6 19 Case No IT-04-84-T 140 3 April 2008 terrorists” and died in July 1998 1212 Radovan Zlatković stated that he did not know how Vendim Hoxha gained this information 1213 245 The Trial Chamber has also received forensic medical evidence with regard to Hajrullah Gashi and Isuf Hoxha Branimir Aleksandrić 1214 testified that the remains labelled “R-22” and “R-23” were recovered on 12 September 1998 1215 R-22 and R-23 were found about 650 metres downstream from the Radonjić Radoniq canal close together within a radius of about 4 metres on the dry part of the ravine immediately above the water-line 1216 Dušan Dunjić 1217 testified that body R-22 was a male between 40 and 55 years old and between 166 and 175 centimetres tall 1218 The autopsy further revealed fractures on the skull and forearm bones 1219 It is possible though very unlikely that these fractures were caused by a fall into the canal 1220 The autopsy revealed wounds that were probably caused by blows from a blunt object 1221 Olga Gashi identified the body as Hajrullah Gashi based on clothes and physical characteristics including dental information that matched the body Hajrullah Gashi had lost many teeth during his life 1222 Olga Gashi told the witness that Hajrullah Gashi was last seen on 24 June 1998 and she had heard that he had been kidnapped by the KLA 1223 Body R-23 was a male between 50 and 60 years old and between 163 and 170 centimetres tall 1224 The autopsy revealed fractures on the ribs the left hip bone and bones of the lower limbs 1225 Bones of the head neck trunk and upper limbs were 1211 P1181 Report of the Đakovica Gjakovë MUP Crime Police Department p 60 Radovan Zlatković T 6882 6898 1213 Radovan Zlatković T 6898 1214 P1260 Branimir Aleksandrić witness statement 26 June 2007 p 1 paras 1 4 6 9 11-12 245 Branimir Aleksandrić T 6732-6733 6737 P1113 Annex A to Branimir Aleksandrić witness statement 26 June 2007 p 1 P1114 Annex B to Branimir Aleksandrić witness statement 26 June 2007 1215 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 128-129 203-204 1216 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 164 171-172 175 177-178 184 Branimir Aleksandrić T 6807-6808 6810 9585 P452 Video of body recovery at canal 1 57’46” - 1 57’56” from 1 59’24” to 1 59’33” P1115 Annex C to Branimir Aleksandrić witness statement 26 June 2007 reports dated 15 and 16 September 1998 pp 4 10 1217 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 1218 P618 Dušan Dunjić witness statement 8 June 2007 para 473 P730 Autopsy report R-22 p 4 1219 P618 Dušan Dunjić witness statement 8 June 2007 para 475 P730 Autopsy report R-22 pp 12 4 1220 P618 Dušan Dunjić witness statement 8 June 2007 para 476 1221 P618 Dušan Dunjić witness statement 8 June 2007 para 477 1222 P618 Dušan Dunjić witness statement 8 June 2007 paras 125 478-483 P730 Autopsy report R22 pp 2 5 1223 P618 Dušan Dunjić witness statement 8 June 2007 para 125 P730 Autopsy report R-22 p 5 1224 P618 Dušan Dunjić witness statement 8 June 2007 para 490 P734 Autopsy report R-23 p 4 1225 P618 Dušan Dunjić witness statement 8 June 2007 para 492 P734 Autopsy report R-23 pp 2 4 1212 Case No IT-04-84-T 141 3 April 2008 missing 1226 Vendim Hoxha identified the body as Isuf Hoxha based on clothes personal effects including a black digital watch and physical characteristics 1227 Vendim Hoxha stated that Isuf had lost almost all of his teeth in life the autopsy found all teeth were missing in body R-23 almost all of which had been lost during life 1228 Vendim Hoxha told the forensic team that Isuf Hoxha had disappeared three months ago 1229 Both sets of remains were handed to the relatives and certificates of death were issued 1230 246 As referred to above the Trial Chamber has been presented with evidence that Isuf Hoxha disappeared on 26 June 1998 on the road between Prizren and Suva Reka Suharekë as well as evidence that Hajrullah Gashi was last seen on 24 June 1998 Radovan Zlatković testified that Vendim Hoxha told him that Isuf Hoxha had been abducted though he did not know how Vendim Hoxha came about this information Additionally in the contemporaneous missing persons report compiled by a MUP officer Vendim Hoxha is recorded as having indicated that his father disappeared without a trace and as he was a member of the Socialist Party of Serbia may have been kidnapped This suggests that Vendim Hoxha had no concrete information as to what had happened to Isuf Hoxha Similarly the source of the information of Olga Gashi who told Dušan Dunjić that she had heard that Hajrullah Gashi had been abducted is unknown The Trial Chamber cannot rely on this unsourced and uncorroborated multiple hearsay evidence of Isuf Hoxha's and Hajrullah Gashi’s alleged abduction During the examination-in-chief of Witness 8 the Prosecution intended to show that Hajrullah Gashi and Isuf Hoxha were together at the time of their alleged abduction However in section 2 1 above the Trial Chamber has explained why it does not rely on the evidence of Witness 8 247 The remains allegedly belonging to the two persons labelled “R-22” and “R-23” were identified by traditional means based on information provided by relatives about Hajrullah Gashi and Isuf Hoxha’s physical characteristics the recognition of clothes found on the bodies the absence of teeth and personal effects The remains have not been identified by DNA analysis The Trial Chamber has heard evidence of traditional 1226 P618 Dušan Dunjić witness statement 8 June 2007 para 492 P734 Autopsy report R-23 p 4 P618 Dušan Dunjić witness statement 8 June 2007 paras 494-498 P734 Autopsy report R-23 pp 2 4-5 Dušan Dunjić T 7210 1228 P734 Autopsy report R-23 pp 2 4 P737 Identification questionnaire R-23 p 10 1229 P618 Dušan Dunjić witness statement 8 June 2007 para 494 1227 Case No IT-04-84-T 142 3 April 2008 identification of other sets of remains which was later contradicted by DNA analysis 1231 which calls for caution R-22 was identified by the victim’s wife based on the clothes found with the body as well as physical characteristics such as dental information R-23 was identified by Vendim Hoxha based on the clothes found with the body physical characteristics and personal belongings which included a black digital watch Bearing in mind that the traditional identifications have not always been accurate and having carefully considered the grounds on which the bodies were identified the Trial Chamber decides in this case not to make any determination regarding the identities of bodies R-22 and R-23 Considering the fact that Hajrullah Gashi and Isuf Hoxha have never been seen again the Trial Chamber accepts that the two men are in all likelihood dead The forensic medical evidence relating to R-22 and R-23 does not allow for a conclusion beyond a reasonable doubt that the deceased were murdered The Trial Chamber has heard no reliable evidence about the alleged illtreatment or the alleged involvement of Ramush Haradinaj in this event For these reasons the Trial Chamber concludes that all three Accused should be acquitted of this Count 6 10 Cruel treatment and murder of Ilira and Tush Frrokaj Count 18 248 All three Accused are charged as participants in a joint criminal enterprise with cruel treatment and murder of Ilira and Tush Frrokaj in violation of the laws or customs of war In the alternative Idriz Balaj is charged as having committed or aided and abetted the commission of the crimes The Trial Chamber has heard relevant evidence from Witness 21 as well as forensic medical evidence 249 Witness 21 saw Tush Frrokaj a Catholic Albanian and his wife Ilira Frrokaj for the last time in Pljančor Plançar some time in late August 1998 1232 According to a report by the Kosovo Diplomatic Monitoring Mission the couple went missing on the 26 August 1998 1233 The witness was told by Tush Frrokaj’s mother that the couple had 1230 P618 Dušan Dunjić witness statement 8 June 2007 paras 484 499 P635 Death certificates pp 15-18 P730 Autopsy report R-22 p 5 P734 Autopsy report R-23 p 5 1231 See section 6 1 above 1232 P42 Witness 21 witness statement 12 April 2007 paras 2-9 Witness 21 T 2736-2739 2748 2845 P42 Witness 21 witness statement 12 April 2007 Annex A Photograph of Ilira and Tush Frrokaj 1233 D67 Report by Kosovo Diplomatic Monitoring Mission on the disappearance of Ilira and Tush Frrokaj 8 September 1998 Case No IT-04-84-T 143 3 April 2008 left Pljančor Plançar around 1 30 or 2 00 p m in the family car a dark red Opel Kadett for Nepolje Nepolë in Peć Pejë municipality where as the witness was told by Tush Frrokaj’s daughter they intended to visit Ilira Frrokaj’s sister Shqipe Krasniqi 1234 According to Witness 21 the main road from Đakovica Gjakovë to Peć Pejë through Dečani Deçan was under Serbian control and it was therefore considered safer to travel to Nepolje Nepolë through the area controlled by the KLA 1235 250 Late in the night of the same day Witness 21 was informed by Tush Frrokaj’s mother that the couple had not returned 1236 The next day the family reported their disappearance to the local police in Đakovica Gjakovë 1237 Witness 21 heard from Tush Frrokaj’s brother-in-law that Ilira and Tush Frrokaj had never arrived in Nepolje Nepolë 1238 At a family meeting two days after the disappearance Haxhi Shinari who had known Tush Frrokaj since childhood informed the witness that he had seen the couple driving on the road from Pljančor Plançar in the direction of Dujak Dujakë at around 2 00 p m on the day they went missing 1239 On the same day Witness 21 met with two KLA soldiers one of whom told the witness he was a member of Idriz Balaj’s Black Eagles 1240 Witness 21 did not know Idriz Balaj whom he referred to as “Toger” before Ilira and Tush Frrokaj’s disappearance 1241 He came across Idriz Balaj twice during his search for Tush and Ilira Frrokaj but Idriz Balaj refused to speak to him on both occasions 1242 Pekka Haverinen testified that he showed photo boards to Witness 21 during an interview on 17 June 2004 and that the witness recognized Idriz Balaj 1243 251 Two or three days after the disappearance of Ilira and Tush Frrokaj Witness 21 travelled with two KLA soldiers to the KLA checkpoint south of Gramočelj Gramaqel 1244 Five soldiers wearing KLA uniforms were on duty 1245 1234 P42 Witness 21 witness statement 12 April 2007 paras 9-11 Witness 21 T 2849 P42 Witness 21 witness statement 12 April 2007 paras 12-13 Witness 21 T 2785-2786 1236 P42 Witness 21 witness statement 12 April 2007 para 14 1237 P42 Witness 21 witness statement 12 April 2007 para 17 Witness 21 T 2740-2741 2850 1238 P42 Witness 21 witness statement 12 April 2007 para 16 1239 P42 Witness 21 witness statement 12 April 2007 paras 18-19 24-27 Witness 21 T 2740-2741 2850 P42 Witness 21 witness statement 12 April 2007 Annex G Map marked by Witness 21 1240 P42 Witness 21 witness statement 12 April 2007 paras 29 31 33 51 Witness 21 T 2630-2635 2641 2740 2754 2802-2803 2862-2863 1241 P42 Witness 21 witness statement 12 April 2007 para 32 Witness 21 T 2720-2722 1242 P42 Witness 21 witness statement 12 April 2007 para 32 Witness 21 T 2719-2720 2853 1243 P375 Pekka Haverinen witness statement 26 June 2007 paras 47-52 pp 68-71 P63 ICTY photo identification board on which Witness 21 positively identified and marked Idriz Balaj 1244 P42 Witness 21 witness statement 12 April 2007 paras 34-35 Witness 21 T 2740-2741 2754 1235 Case No IT-04-84-T 144 3 April 2008 Witness 21 knew three of these soldiers by name 1246 Two of them told the witness that they had been on duty when Ilira and Tush Frrokaj passed their checkpoint 1247 They informed the witness that when Tush Frrokaj was stopped two of the three women in the car got out at the checkpoint 1248 The same two KLA soldiers told the witness that they had advised Tush Frrokaj not to drive through the area because there had been a major Serbian offensive two or three days earlier and it was not yet safe enough to enter the territory 1249 The two soldiers told Witness 21 that they remembered Tush Frrokaj saying “We’re all Albanian” and insisting on driving through the area of Gramočelj Gramaqel and Jablanica Jabllanicë in Đakovica Gjakovë municipality to Nepolje Nepolë which they allowed him to do 1250 252 Over the following days Witness 21 was told by KLA soldiers at the checkpoint outside Glođane Gllogjan on the road leading to Gramočelj Gramaqel that the occupants of a red Opel Kadett who the soldiers described as a small obese woman and a large man with curly hair were picked up by Idriz Balaj interrogated for half an hour and allowed to pass 1251 Witness 21 learned from the guards at the checkpoint outside Glođane Gllogjan on the road leading to Rznic Irzniq that the car had never passed their checkpoint 1252 Witness 21 did not check whether there was a KLA checkpoint on the road leading to Šaptelj Shaptej 1253 253 On or about the fifth day after the disappearance of Ilira and Tush Frrokaj a KLA soldier told Witness 21 about two bodies in the Radonjić Radoniq canal 1254 Witness 21 and the KLA soldier first went to the KLA headquarters in Glođane Gllogjan without an appointment 1255 The witness went inside the compound alone 1256 Witness 21 asked a KLA soldier for a meeting with Ramush Haradinaj 1257 1245 P42 Witness 21 witness statement 12 April 2007 paras 35-37 P42 Witness 21 witness statement 12 April 2007 Annex H KLA insignia 1246 P42 Witness 21 witness statement 12 April 2007 paras 36 42 Witness 21 T 2786-2787 1247 P42 Witness 21 witness statement 12 April 2007 para 39 Witness 21 T 2787 1248 P42 Witness 21 witness statement 12 April 2007 para 40 Witness 21 T 2787 1249 P42 Witness 21 witness statement 12 April 2007 para 40 Witness 21 T 2724 2763-2766 27732775 2787-2789 1250 P42 Witness 21 witness statement 12 April 2007 para 40 1251 P42 Witness 21 witness statement 12 April 2007 paras 44-45 47 55-56 Witness 21 T 2742 2754-2761 2768-2769 P42 Witness 21 witness statement 12 April 2007 Annex I Map marked by Witness 21 D35 Aerial photograph of Glođane Gllogjan village 1252 P42 Witness 21 witness statement 12 April 2007 para 47 Witness 21 T 2761 1253 Witness 21 T 2777-2780 D35 Aerial photograph of Glođane Gllogjan village 1254 P42 Witness 21 witness statement 12 April 2007 para 49 Witness 21 T 2742-2744 2790 1255 P42 Witness 21 witness statement 12 April 2007 para 51 Witness 21 T 2742-2743 1256 P42 Witness 21 witness statement 12 April 2007 para 52 1257 P42 Witness 21 witness statement 12 April 2007 para 52 Witness 21 T 2781-2783 Case No IT-04-84-T 145 3 April 2008 Ramush Haradinaj was not available so the witness met with Ramush Haradinaj’s brother Shkëlzen Haradinaj who was wearing a KLA uniform 1258 Shkëlzen Haradinaj doubted that Idriz Balaj had stopped Ilira and Tush Frrokaj for questioning and reassured the witness that the KLA would look for them and find them if they were in KLA territory 1259 Shkëlzen Haradinaj asked for a photograph of the two missing persons and in the presence of the witness issued a handwritten and signed document which allowed him to move around the Dukagjin zone 1260 Witness 21 used this document to travel within KLA territory 1261 Witness 21 and the KLA soldier who had told him about the bodies then went to the Radonjić Radoniq canal where the soldier pointed out two bodies in the water to the witness which were not the bodies of Ilira and Tush Frrokaj 1262 Witness 21 and the KLA soldier then went to see Tahir Zemaj in Prapačane Prapaqan in Dečani Deçan municipality who assured the witness of his help in finding the two persons dead or alive if they were on KLA territory 1263 254 On or about the sixth day after the disappearance Witness 21 returned with the same soldier to the KLA headquarters in Glođane Gllogjan in order to meet with Shkëlzen Haradinaj for a second time 1264 Witness 21 provided Shkëlzen Haradinaj with a photograph of the missing persons and asked to speak to Idriz Balaj whom he had recognized on the compound 1265 Shkëlzen Haradinaj sent for Idriz Balaj but Idriz Balaj let them know that he was busy 1266 After the meeting they decided to return to the Radonjić Radoniq canal together with another KLA soldier who the witness had met before 1267 In Ratiš Ratishë they were joined by three KLA soldiers in KLA uniform one of whom claimed to be a member of Idriz Balaj’s unit 1268 At the canal these three KLA soldiers remained on a hill to keep guard 1269 Together with the other two soldiers Witness 21 went down to the two bodies in the canal he had previously seen 1270 The witness continued with one of the soldiers and saw more than 30 bodies in the area but 1258 P42 Witness 21 witness statement 12 April 2007 para 53 Witness 21 T 2780-2781 P42 Witness 21 witness statement 12 April 2007 para 53 Witness 21 T 2783-2784 1260 P42 Witness 21 witness statement 12 April 2007 para 53 Witness 21 T 2642 2747 2783-2784 1261 Witness 21 T 2641 1262 P42 Witness 21 witness statement 12 April 2007 paras 54 57 Witness 21 T 2616 2625 2627 2745-2646 2818 1263 Witness 21 T 2629 2637 2744 2718-2719 2855 1264 Witness 21 T 2641-2642 2747 1265 Witness 21 T 2643 2747 2720-2722 2747 2784-2785 2853-2854 1266 Witness 21 T 2643 2784-2785 1267 Witness 21 T 2641 2644 2802-2803 1268 Witness 21 T 2641 2644-2648 2802-2803 1269 Witness 21 T 2647-2648 2653 2803-2804 1270 Witness 21 T 2648 2651 2804 1259 Case No IT-04-84-T 146 3 April 2008 did not find Ilira or Tush Frrokaj among the dead 1271 Witness 21 was prevented from further looking for Ilira and Tush Frrokaj when fighting between the Serbian forces and the KLA broke out in the area 1272 255 The Trial Chamber has also heard forensic medical evidence with regard to Ilira Frrokaj remains labelled “R-18” Branimir Aleksandrić 1273 testified that body R-18 was recovered on 12 September 1998 1274 A red Opel Kadett was found under a waterfall at the place where the concrete part of the canal continues into the natural canal it was upside down the rear burnt and a female body was then lying next to it 1275 All these remains as well as the vehicle were labelled R-18 and the remains were collected in a single body bag 1276 ICMP DNA analysis concluded that the body labelled R-18 is that of Ilira Frrokaj 1277 An autopsy conducted on the remains on 20 October 2005 found a keyhole wound in the frontal bone of the head associated with multiple radiating fractures across the frontal bone 1278 The base of the skull was shattered 1279 The rear of the skull showed evidence of charring 1280 Further injuries to the vertebra 1271 Witness 21 T 2648-2651 2658-2660 2668-2669 2672-2678 2696 2699 2701-2715 2717 P45 Arial photograph of Lake Radonjić Radoniq canal P46 Photograph on which Witness 21 marked the way he took P47 Photograph on which Witness 21 marked where he found the bodies P54 Photograph of Witness 21 in front of the farm P55 Photograph on which Witness 21 marked where he entered and left the cowshed P56 Photograph with concrete blocks on which Witness 21 marked the positions where he found the bodies P57 Photograph with hazelnut trees P58 Photograph with hazelnut trees where Witness 21 found the body of a blond woman P59 Photograph with hazelnut trees where Witness 21 found the body in the flower sack P60 Photograph with hazelnut trees where Witness 21 found the body of a woman in civilian clothing P61 Photograph of the place where Witness 21 found two male bodies P62 Photograph on which Witness 21 marked the position where he saw the five to six bodies 1272 Witness 21 T 2750-2751 1273 P1260 Branimir Aleksandrić witness statement 26 June 2007 p 1 paras 1 4 6 9 11-12 245 Branimir Aleksandrić T 6732-6733 6737 P1113 Annex A to Branimir Aleksandrić witness statement 26 June 2007 p 1 P1114 Annex B to Branimir Aleksandrić witness statement 26 June 2007 1274 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 128-129 203-204 1275 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 31 151 153-157 212 Branimir Aleksandrić T 6803 9605 P64 Photograph of a car in a ravine P414 Various photographs pp 2 9-10 13 P416 Various photographs p 6 P418 Various photographs pp 10 22 P452 Video of body recovery at canal 0 15’40” - 0 16’13” 1 22’35” - 1 23’02” 1 24’43”- 1 24’55” 1 31’14”1 32’06” 1 32’30”- 1 32’40” 1 34’50”- 1 40’06” P714 Various photographs pp 5-7 9 See also P618 Dušan Dunjić witness statement 8 June 2007 para 411 Dušan Dunjić T 7252-7253 P72 Video of Radonjić Radoniq canal Ekonomija Farm and the Dašinovac Dashinoc sites 8-10 September 1998 14’35”-15’02” 20’29”-20’54” 28’05”-30’00” P630 Record of exhumations 16 September 1998 p 4 P710 Photographs of R-18 pp 2-3 P714 Photographs of R-18 pp 2 4-11 D66 Video of Radonjić Radoniq canal and Hotel Paštrik 12-19 September 1998 36’24” – 38’03” 1276 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 152 158 231 Branimir Aleksandrić T 6804 P452 Video of body recovery at canal 1 37’34”- 1 37’45” 1277 Agreed Facts 26 November 2007 No 86 1278 Agreed Facts 26 November 2007 Nos 87-88 1279 Agreed Facts 26 November 2007 No 88 1280 Agreed Facts 26 November 2007 No 88 Case No IT-04-84-T 147 3 April 2008 were consistent with gunshot wounds 1281 The cause of death was determined as multiple gunshot wounds to the head and chest 1282 Dušan Dunjić 1283 testified that the car and body marked R-18 were partly submerged in water due to heavy rain 1284 The body was wearing an orange blouse blackish and charred along the edges 1285 An autopsy conducted on the remains in September 1998 revealed fractures on the skull the vertebra the left shoulder blade left upper arm and the left shin as well as a shallow entry wound on the right lower leg with a bullet protruding from the leg 1286 The bullet did not pass through the soft tissue of the leg from which the witness concluded that it must have lost its initial momentum 1287 The witness believed that the bullet may have slowed down as it passed through a solid obstacle leading the witness to conclude that it is highly likely that the body was in the trunk of or inside a vehicle when the bullet was fired 1288 There were bullet holes in the car and the rear part of the car had been torched 1289 The body showed signs of burning and it was charred along its entire backside 1290 256 As referred to above Witness 21 last saw Ilira and Tush Frrokaj in Pljančor Plançar on or around 26 August 1998 Hearsay evidence suggests that later on the same day unidentified KLA soldiers saw the couple at a checkpoint south of Gramočelj Gramaqel and then at another one outside Glođane Gllogjan where they were questioned for half an hour by Idriz Balaj and allowed to pass The couple’s car and Ilira Frrokaj’s body were found in the Radonjić Radoniq canal The forensic medical evidence indicates that Ilira Frrokaj’s death was caused by multiple gunshot wounds and that her body was partially burned This strongly suggests that she was murdered The remains of Tush Frrokaj have not been recovered and so forensic medical evidence suggestive of murder is absent Considering that there is no evidence that he has been seen since late August 1998 the Trial Chamber accepts that Tush 1281 Agreed Facts 26 November 2007 No 88 Agreed Facts 26 November 2007 No 89 1283 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 1284 P618 Dušan Dunjić witness statement 8 June 2007 para 412 1285 P711 Autopsy report R-18 p 3 1286 P618 Dušan Dunjić witness statement 8 June 2007 para 418 Dušan Dunjić T 7250-7252 P711 Autopsy report R-18 pp 3-5 1287 Dušan Dunjić T 7250-7251 P711 Autopsy report R-18 p 1 1288 Dušan Dunjić T 7250-7251 1289 P618 Dušan Dunjić witness statement 8 June 2007 para 419 P630 Record of exhumations 16 September 1998 p 4 1290 P618 Dušan Dunjić witness statement 8 June 2007 para 421 Dušan Dunjić T 7294-7295 P711 Autopsy report R-18 p 5 1282 Case No IT-04-84-T 148 3 April 2008 Frrokaj in all likelihood is dead However although Tush Frrokaj was last seen together with Ilira Frrokaj the Trial Chamber is not able to conclude beyond a reasonable doubt that he was murdered 257 In section 6 1 above the Trial Chamber has explained that the fact that a body was found in the Radonjić Radoniq canal area is not in itself conclusive as to who committed the killing or with which group if any the perpetrator was affiliated The hearsay evidence on the KLA checkpoints and the interrogation of Ilira and Tush Frrokaj suggests that they were last seen in territory under KLA control but that they had been released from KLA custody The assistance of various KLA soldiers and officers with Witness 21’s investigation into the fate of the couple raises doubt as to whether they were aware of any crime having been committed against the couple The Trial Chamber cannot reasonably exclude on the basis of the evidence the possibility that forces or persons unaffiliated with the KLA committed the killing of Ilira Frrokaj For these reasons and assuming that not only Ilira but also Tush Frrokaj was murdered the Trial Chamber finds that the evidence before it does not allow for a conclusion beyond a reasonable doubt as to who committed the murders with which group if any the perpetrator was affiliated or whether the murders occurred in KLA custody The Trial Chamber has heard no evidence on Idriz Balaj’s alleged involvement in the deaths of Ilira or Tush Frrokaj or their alleged cruel treatment The Trial Chamber therefore concludes that all three Accused should be acquitted of this Count 6 11 Cruel treatment torture and murder of Zenun Gashi and Misin and Sali Berisha Count 20 258 All three Accused are charged as participants in a joint criminal enterprise with cruel treatment torture and murder of Zenun Gashi and Misin and Sali Berisha in violation of the laws or customs of war In the alternative Idriz Balaj is charged with the commission of or aiding and abetting the commission of these crimes The Trial Chamber has heard relevant evidence from Witness 52 Vesel Dizdari Sadri Selca Avni Krasniqi Witness 17 as well as forensic medical evidence 259 Witness 52 testified that Zenun Gashi was a retired police officer from Peć Pejë municipality in 1998 1291 In late June or early July 1998 after hearing that the Serbian 1291 Witness 52 T 9624-9625 Case No IT-04-84-T 149 3 April 2008 police from a neighbouring village were leaving the witness’s family and some other families also tried to leave but returned when realizing that it was only the police and not the villagers that were leaving 1292 The decision of the witness’s family to leave had come out of fear of the KLA 1293 That same day three unknown men visited Zenun Gashi and asked for his gun and his police uniform 1294 Two of the men were dressed in black uniforms and one was in camouflage uniform 1295 Zenun Gashi gave the men his pistol and the police uniform 1296 On 29 July 1998 two unknown men dressed in black uniforms came to the house and searched it for weapons and uniforms but did not find any 1297 On 1 August 1998 around 11 00 a m three Albanian-speaking men came to the witness’s house by car and said they had received an order from their commander to take Zenun Gashi for some twenty minutes and would then bring him back 1298 Two of the three men were the same as those who had searched the house three days earlier 1299 The witness learned from Zenun Gashi that one of the men was Vesel Dizdari and stated that the other was called Commander Cergashi 1300 Two men were dressed in black clothes and one wore a camouflage uniform 1301 Two or three days later some people wearing green camouflage uniforms and bearing KLA insignia on their sleeves and caps came to collect Zenun Gashi’s medicine and a jacket 1302 They were not from the witness’s village 1303 After 1 August 1998 the witness and the witness’s family went to the local KLA headquarters two or three times to inquire about Zenun Gashi but without success 1304 260 Vesel Dizdari an Albanian from Kosurić Kosuriq in Peć Pejë municipality 1305 testified that some time before 7 September 1998 Metë Krasniqi who the witness described as a the KLA Military Police Commander approached him and told him to go to the house of Zenun Gashi in Kosurić Kosuriq and bring Gashi to the school in 1292 Witness 52 T 9625-9634 Witness 52 T 9629-9634 1294 Witness 52 T 9636-9638 1295 Witness 52 T 9637 1296 Witness 52 T 9636-9638 1297 Witness 52 T 9639-9641 1298 Witness 52 T 9635 9640-9643 1299 Witness 52 T 9641 1300 Witness 52 T 9634-9636 9646-9647 1301 Witness 52 T 9642 1302 Witness 52 T 9644-9645 1303 Witness 52 T 9645 1304 Witness 52 T 9643-9644 1305 P366 Vesel Dizdari witness statement 15 April 2007 p 1 Vesel Dizdari T5954-5955 1293 Case No IT-04-84-T 150 3 April 2008 Barane Baran in Peć Pejë municipality 1306 Vesel Dizdari followed these instructions and handed Zenun Gashi over to Metë Krasniqi 1307 The witness was then ordered by Krasniqi to search Zenun Gashi’s house for weapons but found only military boots 1308 261 Sadri Selca a FARK intelligence officer stationed in Barane Baran in Peć Pejë municipality 1309 testified that Zenun Gashi a Roma was a former colleague of his in the police and that Zenun Gashi continued to work for the police after 1990 when the witness had stopped 1310 The last time the witness saw Zenun Gashi was in Barane Baran in a car with Albanian men wearing camouflage uniforms 1311 Zenun Gashi was in a poor state and had been beaten 1312 Zenun Gashi asked the witness for water and the witness gave him some water 1313 The witness told the soldiers to release Zenun Gashi 1314 The soldiers replied “here is your colleague” and that the witness would suffer the same fate and they left with Zenun Gashi 1315 Zenun Gashi’s wife told the witness that Zenun Gashi had been abducted by a group of soldiers early in the morning on the same day that the witness had seen him in the car in Barane Baran 1316 262 Witness 17 testified that at the end of July or beginning of August 1998 he received information from someone within the third brigade security service that a civilian named Zenun from Barane Baran in Peć Pejë municipality had been taken by KLA military police officer Metë Krasniqi 1317 The witness asked Din Krasniqi Metë Krasniqi’s commander who told him that Faton Mehmeti the chief of KLA military police in Glođane Gllogjan who according to the witness’s direct observations reported directly to Ramush Haradinaj had ordered that Zenun be brought to Glođane Gllogjan 1318 After the witness and Din Krasniqi intervened Zenun as far as the witness heard was released 1319 Later Witness 17 received information that Zenun 1306 P366 Vesel Dizdari witness statement 15 April 2007 paras 18-19 P366 Vesel Dizdari witness statement 15 April 2007 para 19 1308 P366 Vesel Dizdari witness statement 15 April 2007 para 21 1309 Sadri Selca T 10858-10860 10864 1310 Sadri Selca T 10872 See also Avni Krasniqi T 10754 1311 Sadri Selca T 10873-10875 10884 1312 Sadri Selca T 10874 1313 Sadri Selca T 10873-10874 10884 1314 Sadri Selca T 10875 1315 Sadri Selca T 10875 1316 Sadri Selca T 10884 1317 P885 Witness 17 witness statement 14 August 2007 para 71 Witness 17 T 7705 1318 P885 Witness 17 witness statement 14 August 2007 para 71 Witness 17 T 7707 1319 P885 Witness 17 witness statement 14 August 2007 para 71 Witness 17 T 7604 1307 Case No IT-04-84-T 151 3 April 2008 had been arrested again He asked Din Krasniqi who implied with a gesture that Zenun had been killed 1320 263 Luan Tetaj testified that sometime in June or July 1998 his aunt Ajmone Berisha from Glođane Gllogjan in Peć Pejë municipality came to his house 1321 She told Luan Tetaj that when she returned home from the market the day before her husband Misin Berisha and two of their five sons Xhevat and Salih Berisha had disappeared 1322 She had waited all night for their return and had come to Luan Tetaj because of Serbian paramilitary presence close to her village which prevented her from moving around 1323 Luan Tetaj went out looking for the three men but no further than 300-400 metres from his house heard military vehicles and returned home 1324 Luan Tetaj did not search for Xhevat Berisha or his brother and father again 1325 The witness never saw the three men again 1326 264 The Trial Chamber has also heard forensic medical evidence with regard to Zenun Gashi remains labelled “R-4” Misin Berisha remains labelled “R-3” and Sali Berisha remains labelled “R-7” Branimir Aleksandrić 1327 testified that all three bodies were found on 11 September 1998 in a field near the canal along the external side of the concrete wall where there were bullet markings together with six other bodies 1328 Body R-4 was found on the surface close to the concrete wall 1329 ICMP DNA analysis identified the body labelled R-4 as that of Zenun Gashi 1330 An autopsy conducted on the remains on 8 December 2003 revealed a gunshot wound to the head indicating a right to left and up to down trajectory 1331 In addition there were fractures to the right arm left forearm ribs and the right foot of the victim which may have been caused by 1320 P885 Witness 17 witness statement 14 August 2007 para 72 Witness 17 T 7707 P1236 Luan Tetaj witness statement 6 June 2007 paras 5 12-13 1322 P1236 Luan Tetaj witness statement 6 June 2007 paras 12-14 1323 P1236 Luan Tetaj witness statement 6 June 2007 para 13 1324 P1236 Luan Tetaj witness statement 6 June 2007 para 14 1325 P1236 Luan Tetaj witness statement 6 June 2007 paras 14 16 1326 P1236 Luan Tetaj witness statement 6 June 2007 paras 15-16 20 1327 P1260 Branimir Aleksandrić witness statement 26 June 2007 p 1 paras 1 4 6 9 11-12 245 Branimir Aleksandrić T 6732-6733 6737 P1113 Annex A to Branimir Aleksandrić witness statement 26 June 2007 p 1 P1114 Annex B to Branimir Aleksandrić witness statement 26 June 2007 1328 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 61-62 P414 Various photographs p 20 P416 Various photographs p 3 P418 Various photographs p 18 P645 Various photographs p 2 P649 Various photographs p 2 1329 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 101-102 P418 Various photographs pp 12 15 number 85 p 20 P452 Video of body recovery at canal 0 04’44” 0 23’08” P645 Various photographs p 3 P648 Autopsy photographs R-4 p 2 1330 Agreed Facts 26 November 2007 No 36 1331 Agreed Facts 26 November 2007 Nos 37-38 1321 Case No IT-04-84-T 152 3 April 2008 gunshot injuries 1332 It was concluded that the cause of death was a shrapnel wound to the head 1333 Dušan Dunjić 1334 stated that a piece of yellow sticky tape was found around the neck of body R-4 1335 From the state of the sticky tape the forensic team concluded that the victim had been bound at the mouth with this tape 1336 The autopsy revealed a bullet entry wound on the lower left side and exit wound on the top right side of the skull 1337 Both arms were fractured in the same place on the lower arms 1338 265 ICMP DNA analysis identified the remains labelled R-3 as those of Misin Berisha 1339 An autopsy conducted on the remains on 14 December 2005 revealed at least one gunshot wound to the head and further gunshot wounds to the chest spine and the left thigh 1340 The report concluded that the cause of death was multiple gunshot wounds to the head chest abdomen and limbs 1341 Dušan Dunjić 1342 stated that a piece of yellow sticky tape was found next to body R-3 similar to the tape found next to R4 1343 From the state of the sticky tape the forensic team concluded that the victim was bound at the mouth with this tape 1344 The autopsy revealed multiple fractures to the skull and lower jaw 1345 According to Dunjić the skull fractures were caused by a blunt object and could not have been caused by a fall from the top of the embankment 1346 266 The OMPF concluded that the body labelled R-7 was that of Sali Berisha 1347 An autopsy conducted on the remains on 5 December 2005 indicated fractures in the left upper arm thigh bones and the left shinbone potentially consistent with gunshot 1332 Agreed Facts 26 November 2007 No 38 Agreed Facts 26 November 2007 No 39 1334 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 1335 P618 Dušan Dunjić witness statement 8 June 2007 para 228 Dušan Dunjić T 6837 P646 Autopsy report R-4 p 2 1336 Dušan Dunjić T 6837 1337 P618 Dušan Dunjić witness statement 8 June 2007 para 233 P646 Autopsy report R-4 pp 2 6 P648 Photographs R-4 p 3-4 1338 P618 Dušan Dunjić witness statement 8 June 2007 para 233-234 P646 Autopsy report R-4 pp 3 6 Dušan Dunjić T 6839 1339 Agreed Facts 26 November 2007 No 32 1340 Agreed Facts 26 November 2007 Nos 33-35 1341 Agreed Facts 26 November 2007 No 35 1342 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 1343 P618 Dušan Dunjić witness statement 8 June 2007 para 212 Dušan Dunjić T 6837 P811 Photograph of sticky-tape p 2 1344 Dušan Dunjić T 6837 1345 P618 Dušan Dunjić witness statement 8 June 2007 para 220 P812 Autopsy report R-3 pp 2 5 1346 P618 Dušan Dunjić witness statement 8 June 2007 para 220 1347 Agreed Facts 26 November 2007 No 44 1333 Case No IT-04-84-T 153 3 April 2008 wounds 1348 The fractures in the pelvis area were consistent with gunshot wounds 1349 The autopsy concluded that the cause of death was most probably multiple gunshot wounds to the trunk and extremities 1350 Dušan Dunjić 1351 testified that an autopsy conducted in September 1998 revealed fractures separating multiple missing bones from the skeleton and according to Dunjić these fractures could not have been caused by a fall 1352 267 As referred to above the Trial Chamber has heard evidence that Misin Berisha and his two sons Sali and Xhevat Berisha were last seen in the village of Glođane Gllogjan in Peć Pejë municipality in June or July 1998 In September 1998 their bodies were discovered at the Radonjić Radoniq canal The alleged murder of Xhevat Berisha is dealt with in section 6 12 10 below The Trial Chamber has heard evidence from Luan Tetaj who in turn had heard from his aunt Ajmone Berisha that her husband Misin and her two sons Sali and Xhevat Berisha had disappeared The Trial Chamber has however not heard any evidence concerning the circumstances of their disappearance According to Witness 17 Misin Berisha’s name was on a list provided to him during a meeting on 12 July 1998 at Din Krasniqi’s home in Vranovac Vranoc The Trial Chamber discusses the significance of this list in section 7 below The Trial Chamber cannot draw any conclusions as to the perpetrators of the killings from this evidence In section 6 1 above the Trial Chamber has explained that the fact that a body was found in the Radonjić Radoniq canal area is not in itself conclusive as to who committed the killing or with which group if any the perpetrator was affiliated 268 The forensic medical evidence strongly suggests that Misin and Sali Berisha were murdered Even assuming that this is the case the Trial Chamber finds that the evidence before it does not allow for a conclusion as to who committed their murder with which group if any the perpetrator was affiliated or whether the murder occurred in KLA custody No evidence about the alleged ill-treatment of Misin and Sali Berisha was admitted For these reasons the Trial Chamber concludes that all three Accused should be acquitted of this count as far as Misin and Sali Berisha are concerned 1348 Agreed Facts 26 November 2007 Nos 45-46 Agreed Facts 26 November 2007 No 46 1350 Agreed Facts 26 November 2007 No 47 1351 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 1352 P618 Dušan Dunjić witness statement 8 June 2007 para 256 P655 Autopsy report R-7 pp 2 6 1349 Case No IT-04-84-T 154 3 April 2008 269 With regard to Zenun Gashi the Trial Chamber concludes that on 1 August 1998 he was taken away from his house in Kosurić Kosuriq Zenun Gashi was a retired police officer of Roma ethnicity Vesel Dizdari one of the three men who detained Zenun Gashi testified that he was ordered by Metë Krasniqi to detain and transfer Zenun Gashi to a school in Barane Baran Sadri Selca testified that on the day Zenun Gashi was taken from his home he saw him with uniformed men in a car in Barane Baran and Zenun Gashi appeared to have been beaten The uniformed men drove off with Zenun Gashi Two or three days later people wearing green camouflage uniforms with KLA insignia came to Zenun Gashi’s house and collected his medication and jacket Witness 17 testified that around the time Zenun Gashi was taken from his home he was told by Din Krasniqi that someone by the name of Zenun from Baran Barane had been arrested Zenun was reportedly released Later however Witness 17 learned that Zenun was re-arrested and taken to Glođane Glodjane Upon inquiring about his fate Din Krasniqi implied to Witness 17 that Zenun had been killed Contrary to Din Krasniqi’s information Zenun Gashi was from the village of Kosurić Kosuriq and after having been taken on 1 August 1998 Zenun Gashi never returned home Furthermore according to the evidence the persons who took Zenun Gashi stated that they were taking him to Baran Barane and not Glođane Glodjane Nevertheless the Trial Chamber finds that this does not exclude that the individual to whom Din Krasniqi referred in his conversation with Witness 17 was Zenun Gashi According to Witness 17 Zenun Gashi’s name was on a list provided to him during a meeting on 12 July 1998 at Din Krasniqi’s home in Vranovac Vranoc The Trial Chamber discusses the significance of this list in section 7 below 270 In September 1998 Zenun Gashi’s body was found at the Radonjić Radoniq canal The autopsies on the remains of Zenun Gashi were conducted with considerable intervals in time One autopsy took place some 6 weeks after his disappearance the other two after 5 to 7 years respectively Whereas all the forensic medical experts found one or more gunshot wounds in the head they were not unanimous in the details of their description of the kind of projectile or object that had caused the injuries to the skull when they considered the cause of death The Trial Chamber is in a position to place the forensic medical evidence in the context of the whole of the evidence relevant for Zenun Gashi’s death that is the evidence in respect of the visit to his home the way in which he was taken from home and the observation of his condition while in custody On the Case No IT-04-84-T 155 3 April 2008 basis of those elements of the forensic medical findings on which the experts agree and despite the lack of unanimity in every detail the Trial Chamber concludes that Zenun Gashi was subjected to cruel treatment and subsequently murdered in KLA custody The Trial Chamber is furthermore convinced that these crimes were closely related to the armed conflict in Kosovo Kosova and that Zenin Gashi was not taking active part in hostilities at the time the crimes were committed and that the perpetrators knew or should have known that this was the case The evidence does not establish that Zenun Gashi was subjected to torture The Trial Chamber has heard no evidence about the alleged involvement of Idriz Balaj in this event All three Accused are charged with Count 20 as participants in a joint criminal enterprise The Trial Chamber will deal with this mode of liability separately in section 7 below 6 12 Murders related to the Radonjić Radoniq canal area Count 22 6 12 1 Murder of Afrim Sylejmani 271 All three Accused are charged as participants in a joint criminal enterprise with the murder of Afrim Sylejmani in violation of the laws or customs of war The Trial Chamber has heard relevant evidence from Agim Sylejmani as well as forensic medical evidence 272 Agim Sylejmani testified that Serbian forces were present in Đakovica Gjakovë throughout 1998 1353 In 1998 the witness did not see any KLA presence in the town 1354 He stated that the KLA were in the surrounding villages and mountains 1355 On 26 April 1998 when it was already dark the witness and Afrim Sylejmani drove to Đakovica Gjakovë in Afrim’s Opel Corsa 1356 After being stopped at a Serbian checkpoint on the Peć Pejë-Đakovica Gjakovë road at the entrance to Đakovica Gjakovë Afrim dropped the witness off at his home 1357 Afrim told the witness that he would go home as well though the witness did not know where Afrim went after he had dropped him off 1358 This was the last time the witness saw Afrim 1359 About one week later the witness’s sister told the witness that Afrim’s wife and children 1353 P1247 Agim Sylejmani witness statement 13 August 2006 para 5 P1247 Agim Sylejmani witness statement 13 August 2006 para 5 1355 P1247 Agim Sylejmani witness statement 13 August 2006 para 5 1356 P1247 Agim Sylejmani witness statement 13 August 2006 paras 3-4 9 10 1357 P1247 Agim Sylejmani witness statement 13 August 2006 paras 11-12 1358 P1247 Agim Sylejmani witness statement 13 August 2006 para 12 1354 Case No IT-04-84-T 156 3 April 2008 had moved into her house because Afrim had left them 1360 The sister did not tell the witness where he had gone 1361 The witness understood from the fact that Afrim’s car was missing that he had left by car 1362 The witness heard rumours that Afrim had joined the KLA although he had never told the witness that he had any intention of joining the KLA 1363 Afrim’s wife later told the witness that Afrim was in the KLA 1364 273 The Trial Chamber has also received forensic medical evidence with regard to Afrim Sylejmani remains labelled “R-28” Branimir Aleksandrić 1365 testified that on 15 September 1998 body R-28 was found stuck under a rock in the water about 700 metres downstream from the beginning of the ravine 1366 ICMP DNA analysis concluded that the body labelled R-28 is that of Afrim Sylejmani 1367 An autopsy conducted on the remains on 8 December 2003 revealed a gunshot injury to the head and additional gunshot injuries to the left side of the chest and the upper arm 1368 It was concluded from the autopsy that the cause of death was a gunshot injury to the head 1369 Dušan Dunjić 1370 testified that the autopsy conducted in September 1998 revealed multiple fractures of the front part of the skull probably inflicted with a blunt instrument 1371 Without treatment this injury could have caused death 1372 274 Based on the evidence the Trial Chamber concludes that on 26 April 1998 Agim Sylejmani saw his brother Afrim Sylejmani a Kosovar Albanian for the last time when Afrim left Agim outside Agim’s house in Đakovica Gjakovë About a week later he learned that Afrim Sylejmani had disappeared In September 1998 Afrim Sylejmani’s remains were found in the ravine downstream from the Radonjić Radoniq canal The forensic medical evidence suggests that Afrim Sylejmani was murdered In 1359 P1247 Agim Sylejmani witness statement 13 August 2006 paras 9 12 P1247 Agim Sylejmani witness statement 13 August 2006 para 13 1361 P1247 Agim Sylejmani witness statement 13 August 2006 para 13 1362 P1247 Agim Sylejmani witness statement 13 August 2006 para 13 1363 P1247 Agim Sylejmani witness statement 13 August 2006 paras 7 12 14 1364 P1247 Agim Sylejmani witness statement 13 August 2006 para 16 1365 P1260 Branimir Aleksandrić witness statement 26 June 2007 p 1 paras 1 4 6 9 11-12 245 Branimir Aleksandrić T 6732-6733 6737 P1113 Annex A to Branimir Aleksandrić witness statement 26 June 2007 p 1 P1114 Annex B to Branimir Aleksandrić witness statement 26 June 2007 1366 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 206-207 209 214 P753 Autopsy photographs R-28 pp 2-3 P1121 Photograph of R-28 1367 Agreed Facts 26 November 2007 No 102 1368 Agreed Facts 26 November 2007 No 104 1369 Agreed Facts 26 November 2007 No 105 1370 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 1371 P618 Dušan Dunjić witness statement 8 June 2007 para 542 P751 Autopsy report R-28 pp 2 4 1372 P618 Dušan Dunjić witness statement 8 June 2007 para 551 1360 Case No IT-04-84-T 157 3 April 2008 section 6 1 above the Trial Chamber has explained that the fact that a body was found in the Radonjić Radoniq canal area is not in itself conclusive as to who committed the killing or with which group if any the perpetrator was affiliated The Trial Chamber has not received any evidence about Afrim Sylejmani being in KLA custody or concerning the circumstances or perpetrators of the killing Moreover the evidence does not indicate why Afrim Sylemani a Kosovar Albanian who may have joined the KLA would be targeted by the KLA 275 For these reasons even assuming that Afrim Sylejmani was murdered the Trial Chamber finds that the evidence before it does not allow for a conclusion as to who committed the murder with which group if any the perpetrator was affiliated or whether the murder occurred in KLA custody The Trial Chamber concludes that all three Accused should be acquitted of this charge 6 12 2 Murder of Rade Popadić 276 All three Accused are charged as participants in a joint criminal enterprise with the murder of Rade Popadić in violation of the laws or customs of war The Trial Chamber has heard relevant evidence from a number of witnesses as well as forensic medical evidence 277 Rade Repić a PJP company commander in 1998 1373 testified that Rade Popadić was a PJP platoon commander and Nikola Jovanović was a MUP corporal 1374 Around 23 May 1998 Rade Popadić and Nikola Jovanović set off in a confiscated civilian Opel Kadett from the Junik police unit towards the Đakovica Gjakova MUP secretariat in order to pick up the daily food supplies for the unit 1375 The two men were armed with a pistol and an automatic rifle but in civilian clothes and with a civilian car in order to avoid attention 1376 They picked up the supplies in Đakovica Gjakova and then reported this by radio to their headquarters in Junik in Dečani Deçan municipality 1377 The two men’s orders were first to deliver some supplies to Babaloć Baballoq in Dečani Deçan 1373 Rade Repić T 8487 8536-8537 Rade Repić T 8504 8509 8517 8575 1375 Rade Repić T 8510-8512 P919 Criminal Reports on the attack against Rade Popadić and Miladin Novaković p 6 1376 Rade Repić T 8512-8513 8565 8574 P919 Criminal Reports on the attack against Rade Popadić and Miladin Novaković p 6 1377 Rade Repić T 8513-8514 1374 Case No IT-04-84-T 158 3 April 2008 municipality and then continue back to Junik 1378 When the two were ready to start the final 10 minute journey from Babaloć Baballoq back to Junik they radioed their PJP unit in Junik 1379 The two men had changed vehicles in Babaloć Baballoq because the Opel Kadett had broken down and they continued their journey to Junik in a gold or yellow metallic coloured Mitsubishi van which the witness believed had a blue Ministry of Interior licence plate 1380 Half an hour later the men had not returned to Junik 1381 This led Rade Repić to send out two vehicles from Junik to Babaloć Baballoq in order to search for the men 1382 They only searched along the road since Rade Repić believed that as an experienced officer Rade Popadić would not have disobeyed his orders and made any detour on his trip 1383 A helicopter was then dispatched to search the broader areas of Junik and Babaloć Baballoq and the roads from Dečani Deçan to Đakovica Gjakova as it was not safe to search the area by land without putting together a strong unit and organized method of entry 1384 A MUP forensic report dated 28 September 1998 stated that the van was found beside the local road in Gornji Streoc Strellci ë Eperm in Dečani Deçan municipality 1385 The two men were never seen again 1386 Rade Repić went to inspect the vehicle which had bullet holes in it 1387 Photographs of the vehicle contained in the MUP forensic report dated 28 September 1998 show the windscreen riddled with bullet holes both on the driver and passenger side 1388 The next day a police squad commander Miladin Novaković was attacked and wounded in the legs by according to Novaković the KLA in the same area where Rade Popadić and Nikola Jovanović had gone missing 1389 This occurred at the Rastavica Rastavicë intersection around 500-600 metres from the Babaloć Baballoq PJP base in Dečani Deçan municipality 1390 As a result of these two incidents on 25 May 2007 a “sweep” operation aimed at locating the two missing policemen and their 1378 Rade Repić T 8513-8514 P919 Criminal Reports on the attack against Rade Popadić and Miladin Novaković p 6 1379 Rade Repić T 8514 8516 1380 Rade Repić T 8514-8515 1381 Rade Repić T 8516-8517 1382 Rade Repić T 8516-8517 1383 Rade Repić T 8517 1384 Rade Repić T 8518 1385 P919 Criminal Reports on the attack against Rade Popadić and Miladin Novaković - photographs of the bullet ridden vehicle p 21 1386 Rade Repić T 8520-8521 1387 Rade Repić T 8521-8522 8529-8530 P919 Criminal Reports on the attack against Rade Popadić and Miladin Novaković - photographs of the bullet ridden vehicle 1388 P919 Criminal Reports on the attack against Rade Popadić and Miladin Novaković - photographs of the bullet ridden vehicle p 19 photographs 3 4 5 1389 Rade Repić T 8518-8519 Case No IT-04-84-T 159 3 April 2008 vehicle was organized and carried out on both sides of the road from Junik and Rastavica Rastavicë towards Dečani Deçan 1391 278 According to four interviews carried out by the RDB Rade Popadić and Nikola Jovanović were arrested by KLA under the command of Ramush Haradinaj Nazim Haradinaj and Idriz Balaj 1392 According to the four suspects interviewed they were taken to the Glodjane Gllogjan KLA headquarters where they were interrogated and tortured 1393 After this they were taken to the Radonjić Radoniq canal where they were executed 1394 279 A Priština Prishtinë corps command combat report dated 25 May 1998 stated that at approximately 2 30 p m on 24 May 1998 Rade Popadić and Nikola Radović were abducted on the Đakovica Gjakovë–Junik road while driving food to the checkpoint in Junik 1395 280 Radovan Zlatković testified that he investigated the disappearance of Rade Popadić and compiled an incident report in which he concluded that Rade Popadić and Nikola Jovanović were kidnapped by an Albanian “terrorist” group at the Rastavica Rastavicë junction in Dečani Deçan municipality 1396 Radovan Zlatković gained this information from interviewing Albanians 1397 He further stated that this incident was also officially recorded during an interview with an Albanian Nedzat Dervisaj 1398 According to the incident report dated 26 May 1998 Rade Popadić and Nikola Jovanović who were armed and in civilian clothes left the police department in Junik at 7 30 a m on 24 May 1998 and drove in a civilian Opel Kadett Caravan to Đakovica Gjakovë to get food and then to Babaloć Baballoq 1399 The report further alleged that they left the police department in Babaloć Baballoq at 10 30 a m in a 1390 Rade Repić T 8518-8519 Rade Repić T 8518 8527 8557-8558 8560-8561 1392 Rade Repić T 8531-8533 P921 Statements relating to the disappearance of Rade Popadić and Miladin Novaković 1393 Rade Repić T 8531-8533 P921 Statements relating to the disappearance of Rade Popadić and Miladin Novaković 1394 Rade Repić T 8531-8533 P921 Statements relating to the disappearance of Rade Popadić and Miladin Novaković 1395 P858 Crime report into the disappearance of Rade Podadić and Nikola Jovanović 26 May 1998 1396 P854 Radovan Zlatković witness statement 25 June 2007 para 13 Radovan Zlatković T 68856888 P858 Crime report into the disappearance of Rade Podadić and Nikola Jovanović 26 May 1998 1397 Radovan Zlatković T 6885-6888 P858 Crime report into the disappearance of Rade Podadić and Nikola Jovanović 26 May 1998 1398 P854 Radovan Zlatković witness statement 25 June 2007 para 13 1399 P858 Crime report into the disappearance of Rade Podadić and Nikola Jovanović 26 May 1998 1391 Case No IT-04-84-T 160 3 April 2008 Mitsubishi vehicle without registration plates and that close to the turning for Junik unidentified Albanians attacked kidnapped and took them in an unknown direction 1400 281 A MUP report dated 4 June 1998 stated that there was a court of honour where persons suspected of being Serbian spies were subject to court martial and sometimes executed in the house of Ismailj and Nasim Haradinaj in Glođane Gllogjan in Dečani Deçan municipality 1401 According to this report two captured police officers were sentenced and executed by firing squad 1402 Zoran Stijović testified that a 6 August MUP report which referred to two policemen captured in Dečani Deçan and being held in Jablanica Jabllanicë were Rade Popadić and Nikola Jovanović 1403 282 Witness 69 a Serbian police officer stationed during the indictment period in Đakovica Gjakovë MUP 1404 testified that two of his colleagues Rade Popadić and Nikola Jovanović were kidnapped on the road between Đakovica Gjakovë and Dečani Deçan by unknown persons 1405 283 The HLC referring to the disappearance of Rade Popadić and Nikola Jovanović reported that on 29 May 1998 the Belgrade daily Danas quoted police sources in Kosovo Kosova as saying that two police officers had been taken prisoner by the KLA and there had been contacts between the KLA and police concerning their return in exchange for food supplies 1406 284 Witness 74 testified that on 14 May 1998 Rade Popadić was sent with several colleagues of the MUP of Šabac in Serbia to Kosovo Kosova as part of his regular duties 1407 On 23 May 1998 Witness 74 spoke with Rade Popadić for the last time and he stated that he was in Junik 1408 On 25 May 1998 MUP authorities of Šabac informed Witness 74 that on 24 May 1998 Rade Popadić and his colleague Nikola Jovanović had gone missing while transporting food in a grey van from Babaloć Baballoq to Junik 1409 Witness 74 was further informed that the MUP had been unable to find any trace of 1400 P858 Crime report into the disappearance of Rade Podadić and Nikola Jovanović 26 May 1998 P981 Crime report 4 June 1998 page 4 1402 P981 Crime report 4 June 1998 page 4 1403 P931 Statement of Zoran Stijović 27 September 2007 para 55 P1003 Crime report 6 August 1998 page 1 1404 P1231 Witness 69 witness statement 20 June 2007 paras 1-2 Witness 69 T 9832-9833 9846 9848 9892 1405 P1231 Witness 69 witness statement 20 June 2007 para 29 Witness 69 T 9846 1406 P6 Spotlight Report No 27 5 August 1998 page 31 1407 P1243 Witness 74 witness statement 14 November 2007 para 2 1408 P1243 Witness 74 witness statement 14 November 2007 para 4 1409 P1243 Witness 74 witness statement 14 November 2007 para 5 1401 Case No IT-04-84-T 161 3 April 2008 either the van or the two men 1410 In late September or early October 1998 a MUP official from Dečani Deçan told Witness 74 that the grey van had been found in a ditch along a dirt road in Streoc Strellci in Dečani Deçan municipality 1411 285 The Trial Chamber has also received forensic medical evidence with regard to Rade Popadić remains labelled “R-31” Branimir Aleksandrić 1412 testified that body R-31 was recovered on 15 September 1998 1413 R-31 was found about 800 metres downstream from the falls in the water and stuck under a rock 1414 ICMP DNA analysis identified the body labelled R-31 as that of Rade Popadić 1415 An autopsy conducted on the remains on 8 December 2003 revealed a gunshot injury to the chest with a possible entry wound on the right lateral side 1416 There was also a gunshot injury to the shoulder region 1417 In addition fractures at the right side of the face and extensive fractures and loss of the back of the skull were consistent with a possible fatal gunshot injury to the head 1418 The cause of death was determined to be a gunshot injury to the chest 1419 Dušan Dunjić 1420 testified that an autopsy conducted on the remains in 1998 revealed fractures on the right thigh bone the skull and the ribs on the right side 1421 The fractures on the ribs were serial and probably inflicted with a blunt instrument 1422 286 As referred to above the Trial Chamber has heard evidence that on either 23 or 24 May 1998 Rade Popadić a PJP commander and Nikola Jovanović a MUP corporal went missing on the road between Babaloć Baballoq and Junik while on PJP MUP duty In September 1998 Rade Popadić’s body was found in the ravine downstream from the Radonjić Radoniq canal The forensic medical evidence 1410 P1243 Witness 74 witness statement 14 November 2007 para 5 P1243 Witness 74 witness statement 14 November 2007 para 11 1412 P1260 Branimir Aleksandrić witness statement 26 June 2007 p 1 paras 1 4 6 9 11-12 245 Branimir Aleksandrić T 6732-6733 6737 P1113 Annex A to Branimir Aleksandrić witness statement 26 June 2007 p 1 P1114 Annex B to Branimir Aleksandrić witness statement 26 June 2007 1413 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 206-207 240 242 P762 Autopsy photographs R31 pp 2-3 1414 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 225 228 267 P449 Various photographs pp 59-60 P1115 Annex C to Branimir Aleksandrić witness statement 26 June 2007 reports dated 15 and 16 September 1998 pp 5 12 1415 Agreed Facts 26 November 2007 No 106 1416 Agreed Facts 26 November 2007 No 108 1417 Agreed Facts 26 November 2007 No 108 1418 Agreed Facts 26 November 2007 No 108 1419 Agreed Facts 26 November 2007 No 109 1420 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 1421 P618 Dušan Dunjić witness statement 8 June 2007 para 568 P760 Autopsy report R-31 pp 2 4 1422 P618 Dušan Dunjić witness statement 8 June 2007 para 568 Autopsy report p 4 1411 Case No IT-04-84-T 162 3 April 2008 concluded that Rade Popadić sustained gunshot injuries to the chest and fractures to the face and skull consistent with a gun shot injury to the head While Dušan Dunjić stated that the fractures on the right side of the ribs were caused by a blunt object an autopsy conducted in 2005 referred to gunshot injuries to the chest with an entry wound on the right side The cause of death was determined as a gunshot injury to the chest The van which Rade Popadić was travelling in was eventually located in Gornji Streoc Strellci ë Eperm The photographs of the vehicle in which the two men were travelling show the windshield riddled with bullet holes both on the driver and passenger side There are three MUP documents pointing to Rade Popadić having been abducted The first is the contemporaneous criminal report compiled by Radovan Zlatković dated 26 May 1998 However the origin and reliability of the information in this document regarding the abduction cannot be verified Radovan Zlatković testified that this information came from interviewing “Albanians” specifically mentioning Nedzat Dervisaj No record of this interview is in evidence The two other MUP reports which are unsourced contradict each other The report dated 4 June 1998 indicated that Rade Popadić was detained and then executed in Glođane Gllogjan while the other report dated 6 August 1998 stated that two policemen were being held in Jablanica Jabllanicë Zoran Stijović testified that this referred to Rade Popadić and Nikola Jovanović For these reasons the Trial Chamber will not rely on these documents for any findings of fact The Trial Chamber has heard evidence that the KLA regularly staged ambushes along the main roads against the MUP around the time Rade Popadić disappeared 1423 Rade Popadić was a Serbian policeman armed and on duty The lack of any evidence conclusively pointing to an abduction and killing hors de combat coupled with the projectile damage to the van’s windshield and the forensic reports on the injuries sustained do not allow the Trial Chamber to conclude beyond a reasonable doubt that Rade Popadić was murdered or exclude him having taken an active part in the hostilities at the time of his death For these reasons the Trial Chamber concludes that all three Accused should be acquitted of this charge 6 12 3 Murder of Ilija Antić 287 All three Accused are charged as participants in a joint criminal enterprise with the murder of Ilija Antić in violation of the laws or customs of war The Trial Chamber 1423 See sections 3 2 and 4 2 above Case No IT-04-84-T 163 3 April 2008 has heard relevant evidence from Momčilo and Jovanka Antić as well as forensic medical evidence 288 Momčilo Antić son of Ilija Antić testified that he was living in Ločane Lloçan in Dečani Deçan municipality and was working full-time as a policeman for the Dečani Deçan MUP in early 1998 1424 In April 1998 on the day after Orthodox Easter following sounds of gunfire and the sighting of tracer bullets somewhere in the direction of Prilep Prelep the witness and several members of his family moved from Ločane Lloçan to Peć Pejë leaving the witness’s father Ilija behind 1425 The witness clarified that they were not told by anyone to leave 1426 Other Serbian families from the village also moved out during those days leaving some of the elderly behind 1427 Antić would visit his father periodically to deliver supplies 1428 He was informed by his brother about his father’s disappearance in late July 1998 1429 The witness explained that his brother told him that “Albanians” the witness later described them as “neighbours” of Ilija Antić had taken him from the front of his house on the night of 28 May 1998 1430 His brother had received this information from his sister who in turn had heard the story from another relative who had heard it from the witness’s uncle and aunt in Ločane Lloçan Đordje and Milosava Antić 1431 None of these people had witnessed the incident 1432 The witness added that elements of this account such as who detained his father could be assumed to be true in light of the circumstances at the time 1433 Antić was presented with documentary evidence that on the day of his father’s disappearance an order was given to VJ forces to attack Ločane Lloçan and the surrounding areas early in the morning of 29 May 1434 The witness denied that such an attack took place however at the time the witness was in hospital in Belgrade 1435 289 Jovanka Antić testified that a relative Milosava Antić had told her that she had last seen Ilija Antić on the evening of 28 May 1998 when he left her home in 1424 Momčilo Antić T 2402-2404 2432 Momčilo Antić T 2409-2415 2417 1426 Momčilo Antić T 2435 1427 Momčilo Antić T 2412-2417 1428 Momčilo Antić T 2411 1429 Momčilo Antić T 2424-2425 2440-2441 1430 Momčilo Antić T 2424-2425 2428 2443-2444 1431 Momčilo Antić T 2425-2428 2440-2443 1432 Momčilo Antić T 2428 1433 Momčilo Antić T 2428-2429 1434 Momčilo Antić T 2473-2475 D34 Decision on Engagement mentioning Ločane Lloçan among other targets signed by General Nebojša Pavković 28 May 1998 1435 Momčilo Antić T 2475 1425 Case No IT-04-84-T 164 3 April 2008 Ločane Lloçan after a visit 1436 Milosava also told the witness that there was a lot of shooting in the village that night 1437 The following day Milosava went to Ilija’s house but found it empty locked and with the lights and television on 1438 290 The Trial Chamber has also received forensic medical evidence with regard to Ilija Antić remains labelled “R-20” Branimir Aleksandrić 1439 testified that body R-20 was located at the Radonjić Radoniq canal 500 metres downstream from the beginning of the natural part of the ravine behind a small lake on the dry part of the ravine one metre above the water-line 1440 R-20 was partly covered by mud and partly by large pieces of clay rock 1441 ICMP DNA analysis concluded that the body labelled R-20 is that of Ilija Antić 1442 From an autopsy conducted on 20 October 2005 it was concluded that the victim had died from multiple gunshot wounds 1443 Dušan Dunjić 1444 testified that an autopsy conducted on the remains in September 1998 revealed fractures on the skull the lower jaw the ribs on the left side the neck both shin bones and the left hand 1445 These fractures could not have been caused by a fall or the body floating down the river 1446 291 Based on the evidence the Trial Chamber concludes that Ilija Antić was last seen in Ločane Lloçan on 28 May 1998 In September 1998 his body was found in the ravine downstream from the Radonjić Radoniq canal The forensic medical evidence suggests that Ilija Antić was murdered In section 6 1 above the Trial Chamber has explained that the fact that a body was found in the Radonjić Radoniq canal area is not in itself conclusive as to who committed the killing or with which group if any the perpetrator was affiliated The Trial Chamber has heard evidence from Momčilo Antić about who were responsible for Ilija Antić’s death However Momčilo Antić’s 1436 P337 Jovanka Antić witness statement 17 July 2004 p 1 paras 2 4 P337 Jovanka Antić witness statement 17 July 2004 para 5 1438 P337 Jovanka Antić witness statement 17 July 2004 para 4 1439 P1260 Branimir Aleksandrić witness statement 26 June 2007 p 1 paras 1 4 6 9 11-12 245 Branimir Aleksandrić T 6732-6733 6737 P1113 Annex A to Branimir Aleksandrić witness statement 26 June 2007 p 1 P1114 Annex B to Branimir Aleksandrić witness statement 26 June 2007 1440 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 4 6 164-165 Branimir Aleksandrić T 6790-6791 P452 Video of body recovery at canal 1 46’17” - 1 46’19” 1441 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 164 166-167 170 Branimir Aleksandrić T 6789-6790 P452 Video of body recovery at canal 1 45’22”- 1 46’04” from 1 46’28” to 1 53’30” P724 Various photographs pp 2-3 1442 Agreed Facts 26 November 2007 No 90 1443 Agreed Facts 26 November 2007 No 93 1444 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 1445 P618 Dušan Dunjić witness statement 8 June 2007 para 449 P722 Autopsy report R-20 p 5 1446 P618 Dušan Dunjić witness statement 8 June 2007 para 449 1437 Case No IT-04-84-T 165 3 April 2008 testimony that “Albanians” or “neighbours” of Ilija Antić abducted him is vague and insufficient to identify the perpetrators or their affiliation Moreover the evidence is multiple hearsay and the original source Đordje and Milosava Antić did not witness the alleged abduction Milosava Antić confirmed this when telling Jovanka Antić about the incident The Trial Chamber can therefore not rely on the evidence from Momčilo Antić as to who is responsible for the killing or whether Ilija Antić was in KLA custody at the time of his death The evidence from Jovanka Antić does not help to identify the perpetrators The fact that Ilija Antić was one of the few Serbs left in Ločane Lloçan at the time and that his son was a policeman in Dečani Deçan suggests according to the Prosecution a motive for him becoming a target for the KLA 1447 However such a motive cannot compensate for the lack of evidence as to what happened to Ilija Antić Moreover the Trial Chamber has received documentary evidence about VJ forces being ordered to attack the village around the time when he was last seen alive and evidence from Jovanka Antić that a lot of shooting was heard in the village on the night between 28 and 29 May 1998 292 For these reasons and assuming that Ilija Antić was murdered the Trial Chamber finds that the evidence before it does not allow for a conclusion beyond a reasonable doubt as to who committed the murder with which group if any the perpetrator was affiliated or whether the murder occurred in KLA custody The Trial Chamber concludes that all three Accused should be acquitted of this charge 6 12 4 Murder of Idriz Hoti 293 All three Accused are charged as participants in a joint criminal enterprise with the murder of Idriz Hoti in violation of the laws or customs of war The Trial Chamber has heard relevant evidence from Hajdar Hoti as well as forensic medical evidence 294 Hajdar Hoti from Dejne Danjane in Orahovac Rahovec municipality testified that he joined the KLA in May 1998 1448 In June or July 1998 the witness’s uncle Idriz Hoti came to visit the witness in Dejne Danjane 1449 Idriz Hoti was about 63 years old in the spring of 1998 1450 Idriz Hoti was married to a Bosnian Muslim and supported 1447 Prosecution’s Final Trial Brief paras 492 496 P1232 Hajdar Hoti witness statement 24 October 2007 paras 1-2 1449 P1232 Hajdar Hoti witness statement 24 October 2007 paras 3 6 1450 P1232 Hajdar Hoti witness statement 24 October 2007 para 3 1448 Case No IT-04-84-T 166 3 April 2008 both the LDK and the KLA in 1998 1451 Idriz Hoti said that he had just been beaten and robbed by Serbian military police at a checkpoint 1452 The military police accused him of bringing money and cigarettes to the KLA and threatened to kill his family if he would not come back the day after 1453 The witness also heard Idriz Hoti tell the witness’s father that he wanted to join the KLA 1454 Idriz Hoti spent the night at the witness’s house and the next day around noon left on his bike 1455 Idriz Hoti told the witness that he was going to “Ramush Haradinaj’s zone” to join the KLA 1456 Idriz Hoti then left in the direction of Jablanica Jabllanicë 1457 According to the witness the area between Crmljane Cermjan in Đakovica Gjakovë municipality and Jablanica Jabllanicë was under KLA control and under the command of Ramush Haradinaj at the time 1458 On the day Idriz Hoti left the witness saw fighting between Serbian forces and KLA soldiers somewhere between Suka Crmljane Cermjan and Suka ë Bektesh 1459 In 1999 after the war Ali Hoti a close relative of the witness told the witness that he last saw Idriz Hoti in July 1998 in Crmljane Cermjan heading towards Jablanica Jabllanicë 1460 295 The Trial Chamber has also received forensic medical evidence with regard to Idriz Hoti remains labelled “R-13” Branimir Aleksandrić 1461 testified that on 12 September 1998 body R-13 was discovered at the Radonjić Radoniq canal only after body R-3 was removed along the wall 1462 Cables with black plastic isolation similar to those found at Ekonomija farm were found alongside body R-13 along with a twisted mountain climbing rope about one centimetre thick tied into a sliding noose at one end 1463 ICMP DNA analysis identified the remains labelled R-13 as those of Idriz 1451 P1232 Hajdar Hoti witness statement 24 October 2007 paras 3 5 P1232 Hajdar Hoti witness statement 24 October 2007 paras 7-8 1453 P1232 Hajdar Hoti witness statement 24 October 2007 para 8 1454 P1232 Hajdar Hoti witness statement 24 October 2007 para 9 1455 P1232 Hajdar Hoti witness statement 24 October 2007 paras 9-10 1456 P1232 Hajdar Hoti witness statement 24 October 2007 para 11 1457 P1232 Hajdar Hoti witness statement 24 October 2007 para 11 1458 P1232 Hajdar Hoti witness statement 24 October 2007 para 12 1459 P1232 Hajdar Hoti witness statement 24 October 2004 para 12 1460 P1232 Hajdar Hoti witness statement 24 October 2007 para 14 1461 P1260 Branimir Aleksandrić witness statement 26 June 2007 p 1 paras 1 4 6 9 11-12 245 Branimir Aleksandrić T 6732-6733 6737 P1113 Annex A to Branimir Aleksandrić witness statement 26 June 2007 p 1 P1114 Annex B to Branimir Aleksandrić witness statement 26 June 2007 1462 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 4 6 94 97 100 128-129 203-204 Branimir Aleksandrić T 6766-6767 P452 Video of body recovery at canal 0 39’12”0 40’58” 1463 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 97-98 100 Branimir Aleksandrić T 6743-6744 6749-6750 6769 P418 Various photographs p 32 P449 Various 1452 Case No IT-04-84-T 167 3 April 2008 Hoti 1464 From an autopsy conducted on the remains on 8 December 2003 it was concluded that the cause of death was a gunshot injury to the head face 1465 Dušan Dunjić 1466 testified that an autopsy conducted in September 1998 revealed that some ribs were missing and some ribs were fractured which suggested a traumatic impact around the chest area and there were two large fractures and holes probably bullet holes in the skull 1467 296 As referred to above the Trial Chamber has heard direct and hearsay evidence that Idriz Hoti was last seen in June or July 1998 in the area between Dejne Danjane and Crmljane Cermjan reportedly heading to Jablanica Jabllanicë which the Trial Chamber understands to be Jablanica Jabllanicë in Đakovica Gjakovë municipality In September 1998 Idriz Hoti’s body was found at the Radonjić Radoniq canal The forensic medical evidence strongly suggests that he was murdered In section 6 1 above the Trial Chamber has explained that the fact that a body was found in the Radonjić Radoniq canal area is not in itself conclusive as to who committed the killing or with which group if any the perpetrator was affiliated The Trial Chamber has not received any evidence about Idriz Hoti being in KLA custody or concerning the circumstances or perpetrators of the killing Idriz Hoti was married to a Bosnian Muslim and supported the LDK However he also supported the KLA and prior to when he was last seen had declared his intention to join the KLA The Trial Chamber has heard evidence that around the time Idriz Hoti was last seen Crmljane Cermjan was under KLA control and there was fighting between KLA and Serbian forces in the Crmljane Cermjan area 1468 Not long before he was last seen Serbian military police had threatened and beaten him Even if Idriz Hoti was last seen in KLA controlled territory on the basis of the evidence the Trial Chamber cannot reasonably exclude the possibility that other forces or persons unaffiliated with the KLA committed the killing photographs p 33 P690 Autopsy photographs R-13 p 7 See also P618 Dušan Dunjić witness statement 8 June 2007 para 352 P630 Record of exhumations 16 September 1998 p 2 1464 Agreed Facts 26 November 2007 No 70 1465 Agreed Facts 26 November 2007 No 73 1466 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 1467 P618 Dušan Dunjić witness statement 8 June 2007 para 349 P688 Autopsy report R-13 pp 2 6 P690 Photographs R-13 pp 4-5 1468 P1138 Branko Gajić witness statement 2 October 2007 para 13 P1142 549th Motorised Brigade Command Report on the Đakovica Gjakovë municipality in early 1998 23 February 1998 p 1 Case No IT-04-84-T 168 3 April 2008 297 For these reasons even assuming Idriz Hoti was murdered the Trial Chamber finds that the evidence before it does not allow for a conclusion beyond a reasonable doubt as to who committed the murder with which group if any the perpetrator was affiliated or whether the murder occurred in KLA custody The Trial Chamber therefore concludes that all three Accused should be acquitted of this charge 6 12 5 Murder of Kujtim Imeraj 298 All three Accused are charged as participants in a joint criminal enterprise with the murder of Kujtim Imeraj in violation of the laws or customs of war The Trial Chamber has heard relevant evidence from Witness 65 as well as forensic medical evidence 299 Witness 65 testified that in the spring of 1998 a man called Binak told him that some Albanians from Glođane Gllogjan in Dečani Deçan municipality had come to Paljabarda Palabardhe in Đakovica Gjakovë municipality 1469 They were dressed as civilians and inquired of Binak why he did not tell Witness 65 and Kujtim Imeraj a Roma to join the KLA 1470 Binak replied that he could not do so 1471 At around 1 or 2 p m on the same day the witness Binak and Kujtim Imeraj travelled from Paljabarda Palabardhe to Lower Novo Selo Novo Sello in Đakovica Gjakovë municipality 1472 The reason they left Paljabarda Palabardhe was that Serbian forces were approaching from the direction of Đakovica Gjakovë 1473 As they were leaving the witness saw soldiers on four or five tanks moving towards Paljabarda Palabardhe 1474 He testified that two weeks later as Binak told the witness around noon on 4 July 1998 he saw a group of people in approximately seven or eight cars approaching lower Novo Selo Novo Sello from the direction of Dujak Dujakë and Glođane Gllogjan 1475 One person in this group was wearing black clothes and a black hood over his face while the rest were dressed in civilian clothes 1476 They were armed with automatic rifles and spoke Albanian 1477 At the time of their arrival Witness 65 1469 Witness 65 T 8239-8240 8242-8243 8245 Witness 65 T 8240 8243-8245 1471 Witness 65 T 8244 1472 Witness 65 T 8242-8243 8246-8247 8302-8303 1473 Witness 65 T 8305 1474 Witness 65 T 8305-8307 1475 Witness 65 T 8247 8249 8251 8296 1476 Witness 65 T 8251-8252 8296-8297 1477 Witness 65 T 8297 1470 Case No IT-04-84-T 169 3 April 2008 and Binak were in a yard while Kujtim had gone out to the street to buy cigarettes 1478 People in the group asked the witness where a man called Bashkim was 1479 The witness replied that he did not know upon which the soldiers beat him 1480 They surrounded him and shouted “Why are you here You are siding with the Serbs You are Maxhupis gypsies” 1481 They took Kujtim from the street 1482 The witness saw them hitting Kujtim with a rifle butt and putting him into a car 1483 The witness told them not to take Kujtim but the witness was beaten until he became unconscious 1484 According to the witness the group then drove off with Kujtim in the direction they had come from 1485 Later on that day Binak told the witness that he had heard them saying “When you find Bashkim and bring him to us then we will release Kujtim” 1486 The witness has not heard from Kujtim since that day 1487 300 The Trial Chamber has also received forensic medical evidence with regard to Kujtim Imeraj remains labelled “R-26” and “R-27A” Branimir Aleksandrić 1488 testified that on 12 September 1998 about 660 metres downstream from the Radonjić Radoniq canal a pair of trousers with leg bones inside and a black jacket were found and marked as R-26 1489 On 12 September 1998 about fifty metres downstream from R-26 a black jacket two shin bones a left shoulder blade and a fragment of spine probably with part of the ribs that run along the spinal column were found and marked as R-27 1490 ICMP DNA analysis identified the remains labelled R-26 and R-27A part of the R-27 remains as those of Kujtim Imeraj 1491 An autopsy conducted on the 1478 Witness 65 T 8249-8251 8300 Witness 65 T 8249 8251-8252 8298 1480 Witness 65 T 8249 8298 1481 Witness 65 T 8299 1482 Witness 65 T 8248-8251 1483 Witness 65 T 8299-8300 1484 Witness 65 T 8248 8251 8298 1485 Witness 65 T 8248 8299-8300 8303-8305 1486 Witness 65 T 8300-8301 1487 Witness 65 T 8301 1488 P1260 Branimir Aleksandrić witness statement 26 June 2007 p 1 paras 1 4 6 9 11-12 245 Branimir Aleksandrić T 6732-6733 6737 P1113 Annex A to Branimir Aleksandrić witness statement 26 June 2007 p 1 P1114 Annex B to Branimir Aleksandrić witness statement 26 June 2007 1489 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 4 6 128 164 171 197-198 203-204 Branimir Aleksandrić T 9602 P415 Various photographs p 6 P744 Autopsy photographs R-26 pp 2-3 1490 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 128 200 201-204 Branimir Aleksandrić T 9602-9603 9613-9614 P449 Various photographs p 52 lower photograph p 53 P747 Autopsy report R-27 pp 1-2 P749 Autopsy photographs R-27 pp 2-3 P1115 Annex C to Branimir Aleksandrić witness statement 26 June 2007 reports dated 15 and 16 September 1998 pp 5 11 1491 Agreed Facts 26 November 2007 No 98 1479 Case No IT-04-84-T 170 3 April 2008 remains on 20 October 2005 did not reveal clear ante-mortem injuries 1492 As such the cause of death was unascertained 1493 Dušan Dunjić 1494 testified that the autopsy conducted in September 1998 revealed a fracture on the bones of the skull 1495 301 As referred to above the Trial Chamber has heard credible evidence from Witness 65 that on 4 July 1998 Kujtim Imeraj was taken from a street in Novo Selo Novo Sello beaten forced into a car and then driven off by a group of armed men Kujtim Imeraj did not return to his family and was never seen by anyone until the discovery of his mortal remains in the ravine downstream from the Radonjić Radoniq canal According to the forensic medical evidence the cause of death for Kujtim Imeraj could not be established In light of the evidence on his abduction it is likely that he was killed and further that he was killed by the men who abducted him or while in their custody Witness 65 did not identify the armed men as belonging to a certain group or organization Furthermore he testified that none of them wore military uniform or had any KLA insignia Although Witness 65 testified that the group of armed men came from the direction of Dujak Dujakë and Glođane Gllogjan this is insufficient to prove that the abductors were based in Glođane Gllogjan Moreover the fact that the perpetrators spoke Albanian and were armed with automatic rifles is not sufficient for identifying their membership or affiliation with the KLA or any other group for that matter In section 6 1 above the Trial Chamber has explained that the fact that a body was found in the Radonjić Radoniq canal area is not in itself conclusive as to who committed the killing or with which group if any the perpetrator was affiliated Witness 65 testified about an incident in the spring of 1998 during which some Albanians approached a man called Binak and inquired why he had not told Witness 65 and Kujtim Imeraj to join the KLA Witness 65 heard about this incident from Binak However the evidence is insufficient to link these Albanians with the armed men who abducted Kujtim Imeraj 302 For these reasons and assuming that Kujtim Imeraj was murdered the Trial Chamber finds that the evidence before it does not allow for a conclusion as to who committed the murder with which group if any the perpetrator was affiliated or 1492 Agreed Facts 26 November 2007 Nos 99-100 Agreed Facts 26 November 2007 No 101 1494 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 1495 P618 Dušan Dunjić witness statement 8 June 2007 para 518 P742 Autopsy report R-26 pp 2 4 1493 Case No IT-04-84-T 171 3 April 2008 whether the murder occurred in KLA custody The Trial Chamber concludes that all three Accused should be acquitted of this charge 6 12 6 Murder of Nurije and Istref Krasniqi 303 All three Accused are charged as participants in a joint criminal enterprise with the murder of Nurije and Istref Krasniqi in violation of the laws or customs of war The Trial Chamber has heard relevant evidence from Witness 62 Sadri Selca Rrustem Tetaj and Cufë Krasniqi as well as forensic medical evidence 304 Witness 62 testified that on 9 or 10 July 1998 Rrustem Tetaj a KLA commander who introduced himself as the deputy of Ramush Haradinaj and Hazir Gjoci a distant relative of Muharrem Gjoci see below accompanied by seven or eight armed soldiers in black uniform visited the family house of Istref and Nurije Krasniqi in Turjak Turjakë in Peć Pejë municipality to visit the wounded Muhamet Krasniqi and to act as “mediators of blood” to end the feud that the Krasniqi family was involved in 1496 According to Witness 62 the family was feuding with the family of Muharrem Xhevdet and Rexhep Gjoci and with the family of Brahim and Avdi Krasniqi the uncles of the Gjoci brothers 1497 The witness testified about four incidents related to this family feud the first one being the killing of Muharrem Gjoci on 27 August 1981 1498 The second incident occurred in 1990 1499 In 1992 or 1993 Muhamet Krasniqi the son of Istref and Nurije Krasniqi injured Avdi Krasniqi with an axe 1500 About six months after this incident Skender Krasniqi also a son of Istref and Nurije Krasniqi shot and wounded Brahim Krasniqi with a hunting rifle 1501 The last incident occurred on 26 June 1998 one day after the KLA took control of the area around Turjak Turjakë and Brahim and Avdi Krasniqi became KLA commanders there when Muhamet Krasniqi was shot in his neck close to his family house 1502 The witness was told by Muhamet Krasniqi that he had seen Brahim Krasniqi nearby behind some bushes at the time of the 1496 P345 Witness 62 witness statement 12 June 2007 paras 4 19-22 Witness 62 T 5528 5534-5535 5604-5605 5610-5611 5617 1497 P345 Witness 62 witness statement 12 June 2007 paras 7-14 Witness 62 T 5555 5559-5560 5562-5563 5591-5598 1498 P345 Witness 62 witness statement 12 June 2007 paras 7-11 Witness 62 T 5591-5593 1499 Witness 62 T 5592 5596 1500 P345 Witness 62 witness statement 12 June 2007 para 11 Witness 62 T 5595-5596 1501 P345 Witness 62 witness statement 12 June 2007 para 12 Witness 62 T 5596 1502 P345 Witness 62 witness statement 12 June 2007 para 14 Witness 62 T 5597-5598 5635 Case No IT-04-84-T 172 3 April 2008 shooting 1503 Muhamet Krasniqi died on 27 July 1998 1504 Witness 62 testified that since 1992 and through to 1998 two or three families including Avdi and Brahim Krasniqi spread rumours in the village of Turjak Turjakë motivated by an ongoing family blood feud that the family of Nurije and Istref Krasniqi were Serbian collaborators 1505 305 At midnight on 12 July 1998 Smajl Gashi and a group of four soldiers in black uniforms with KLA insignia at least three of them armed came to the house of Istref and Nurije Krasniqi explaining that they had been sent by Rrustem Tetaj 1506 They stated that they had been ordered to take Istref and Nurije Krasniqi to the headquarters in Glođane Gllogjan in Dečani Deçan municipality and that they would return them the next morning 1507 The witness recognized their black uniforms as being those of Toger’s unit 1508 Istref and Nurije Krasniqi were taken away in a black four-wheel-drive vehicle that night and the witness never saw them again 1509 306 On 14 July 1998 Witness 62 met Rrustem Tetaj in Luka Lluka in Dečani Deçan municipality in order to inquire about the abduction of Istref and Nurije Krasniqi 1510 Rrustem Tetaj told the witness that he did not know anything about the abduction but Witness 62 did not believe him 1511 On the same day Witness 62 asked Din Krasniqi KLA commander of the Vranovac Vranoc area in Peć Pejë municipality about the whereabouts of Istref and Nurije Krasniqi 1512 Din Krasniqi was surprised to hear about the abduction and said that he could not believe that it had happened and promised to make inquiries with people at the headquarters in Glođane Gllogjan as well as from commanders elsewhere 1513 On 15 July 1998 the witness went to see Din Krasniqi for a second time and was told that there were two different versions relating to the whereabouts of Istref and Nurije Krasniqi 1514 According to the first version the couple had been interrogated at the headquarters in Glođane Gllogjan and afterwards released in Rznić Irzniq in Dečani Deçan municipality 1515 The second version was that they had 1503 P345 Witness 62 witness statement 12 June 2007 para 14 Witness 62 T 5597 5614 P345 Witness 62 witness statement 12 June 2007 para 18 Witness 62 T 5597 1505 Witness 62 T 5563-5565 5567-5569 5573-5574 5576-5577 5621-5622 5634-5635 5637-5638 1506 Witness 62 T 5531-5533 5535-5537 5540 5622-5624 1507 Witness 62 T 5533-5534 5536-5537 5540 5545 1508 P345 Witness 62 witness statement 12 June 2007 para 19 Witness 62 T 5563 1509 Witness 62 T 5538 1510 Witness 62 T 5540-5542 5587 5625-5626 1511 Witness 62 T 5545 5617 5626-5627 1512 Witness 62 T 5547-5548 5631 1513 Witness 62 T 5548 5554 5631 5633 1514 Witness 62 T 5549 1515 Witness 62 T 5549 1504 Case No IT-04-84-T 173 3 April 2008 been taken to the headquarters in Glođane Gllogjan but that somebody had taken them away from there due to the ongoing family feud without the headquarters knowing about it and that there was no further information about their whereabouts 1516 The witness believed the second version to be true 1517 307 Rrustem Tetaj testified that there were two blood feuds going on in Turjak Turjakë one between two families who were both called Krasniqi and another one between the family of a man called Smajl Gashi and another family 1518 Sometime in the summer of 1998 Tetaj went to the village to try to persuade the families to put their differences aside 1519 He stated that he had learned from a book written by Tahir Zemaj that he was accused of the abduction of Istref Krasniqi 1520 308 Sadri Selca a FARK intelligence officer 1521 testified that Naser Kuqi the witness’s courier from Junik in Dečani Deçan municipality told the witness that the elderly people called Nurije and Istref Krasniqi were taken away by Rrustem Tetaj in a vehicle 1522 Naser Kuqi had heard this from villagers from Turjak Turjakë in Peć Pejë municipality 1523 Although the witness’s official notes state that Imer Krasniqi from Turjak Turjakë was taken for an interview regarding his collaboration with Serbian police Sadri Selca did not believe that Nurije and Istref Krasniqi were collaborating with the Serbian police 1524 309 Cufë Krasniqi a KLA commander 1525 testified that sometime before September 1998 Tahir Zemaj asked him if he knew what had happened to Nurije and Istref Krasniqi 1526 Zemaj told Cufë Krasniqi that the commander of the KLA military police Fadil Nimoni was appointed to deal with the case 1527 Cufë Krasniqi told Zemaj to ask the military police officers who were patrolling the villages 1528 310 The Trial Chamber has also received forensic medical evidence with regard to Nurije remains labelled “R-14” and Istref Krasniqi remains labelled “R-15” 1516 Witness 62 T 5549 5555 5590 5630-5631 5633 Witness 62 T 5552 5590 1518 Rrustem Tetaj T 3784-3785 1519 Rrustem Tetaj T 3783-3784 1520 Rrustem Tetaj T 3785 1521 Sadri Selca T 10858-10860 10864 1522 Sadri Selca T 10867-10869 10883 P1229 Official note compiled by Sadri Selca 25 August 1998 1523 Sadri Selca T 10883 1524 Sadri Selca T 10870-10872 10884-10885 P896 Official notes of Sadri Selca undated p 8 1525 P351 Cufë Krasniqi witness statement 14 June 2007 p 1 para 1 1526 P351 Cufë Krasniqi witness statement 14 June 2007 para 88 Cufë Krasniqi T 5726-5727 1527 P351 Cufë Krasniqi witness statement 14 June 2007 para 88 1517 Case No IT-04-84-T 174 3 April 2008 Branimir Aleksandrić 1529 testified that Bodies R-14 and R-15 were recovered on 12 September 1998 1530 At the end of the concrete wall of the canal there was a pile of gravel on the outer side of the wall 1531 Removal of the gravel revealed bodies R-14 and R-15 1532 Body R-14 was on the left side of the bullet markings on the concrete wall body R-15 on the right side of the bullet markings 1533 ICMP DNA analysis identified the body labelled R-14 as that of Nurije Krasniqi 1534 An autopsy conducted on the remains on 5 December 2003 found fractures to the skull consistent with gunshot wounds with the entrance to the back of the head 1535 There were other fractures which suggested gunshot wounds to the left shoulder and arm 1536 The autopsy determined that death was caused by a gunshot wound to the head 1537 ICMP DNA analysis also identified the body labelled R-15 as that of Istref Krasniqi 1538 An autopsy conducted on the remains on 12 October 2005 showed multiple fractures including a compression fracture and damages to the spine ribs forearm and the elbow some of which were consistent with gunshot wounds 1539 It was concluded that the cause of death was multiple gunshot wounds to the chest 1540 Dušan Dunjić 1541 testified that an autopsy conducted on R-15 in September 1998 revealed fractures on both forearm bones these could not have been caused by a fall down the slope to the canal 1542 According to the witness these fractures were more likely to have been caused by a blow 1543 311 As referred to above Witness 62 testified that around midnight on 12 July 1998 a group of soldiers in black uniforms with KLA insignia came to Nurije and Istref 1528 P351 Cufë Krasniqi witness statement 14 June 2007 para 88 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 1 4 6 9 11-12 245 Branimir Aleksandrić T 6732-6733 6737 P1113 Annex A to Branimir Aleksandrić witness statement 26 June 2007 p 1 P1114 Annex B to Branimir Aleksandrić witness statement 26 June 2007 1530 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 128 203-204 1531 P1260 Branimir Aleksandrić witness statement 26 June 2007 para 134 Branimir Aleksandrić T 9553 1532 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 134-135 Branimir Aleksandrić T 6772-6773 9553 P449 Various photographs pp 34-35 P452 Video of body recovery at canal 1 05’03”- 1 12’05” P694 Autopsy photographs R-14 pp 3-5 1533 P1260 Branimir Aleksandrić witness statement 26 June 2007 para 136 1534 Agreed Facts 26 November 2007 No 74 1535 Agreed Facts 26 November 2007 Nos 75-76 1536 Agreed Facts 26 November 2007 No 76 1537 Agreed Facts 26 November 2007 No 77 1538 Agreed Facts 26 November 2007 No 78 1539 Agreed Facts 26 November 2007 Nos 79-80 1540 Agreed Facts 26 November 2007 No 81 1541 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 1542 P618 Dušan Dunjić witness statement 8 June 2007 para 374 P697 Autopsy report R-15 p 6 1543 P618 Dušan Dunjić witness statement 8 June 2007 para 374 1529 Case No IT-04-84-T 175 3 April 2008 Krasniqi’s house in Turjak Turjakë and took them away Witness 62 further testified that the soldiers stated that they had been sent by Rrustem Tetaj that they had been ordered to take the couple to the headquarters in Glođane Gllogjan and that they would return Nurije and Istref Krasniqi the next morning Nurije and Istref Krasniqi never returned home Sadri Selca provided multiple hearsay evidence from unidentified sources also implicating Rrustem Tetaj in taking away Nurije and Istref Krasniqi However Witness 62 testified that Rrustem Tetaj denied having given such an order and Rrustem Tetaj himself testified that he had later learned from a book that he was accused of the abduction of Istref Krasniqi According to Witness 62 Din Krasniqi KLA commander of the Vranovac Vranoc area promised to make some inquiries and later told Witness 62 that there were two different stories about what happened to the couple According to the first story the couple was interrogated at the headquarters in Glođane Gllogjan and then released in Rznić Irzniq According to the second story the couple was interrogated at the headquarters in Glođane Gllogjan and then taken away by someone for reasons connected to a blood feud Both stories are consistent with the evidence indicating that Nurije and Istref Krasniqi were taken to the headquarters in Glođane Gllogjan The stories contradict each other as to what happened thereafter Cufë Krasniqi gave hearsay evidence of a KLA investigation by Fadil Nimoni commander of the KLA military police into the fate of Nurije and Istref Krasniqi In September 1998 their remains were found close to each other at the Radonjić Radoniq canal The forensic medical evidence strongly suggests that Nurije and Istref Krasniqi were murdered On the basis of this evidence the Trial Chamber is satisfied that KLA soldiers took Nurije and Istref Krasniqi away from their home and brought them to the KLA headquarters in Glođane Gllogjan The Trial Chamber is also convinced beyond a reasonable doubt that Nurije and Istref Krasniqi were murdered in KLA custody The Trial Chamber is furthermore convinced that this crime was closely related to the armed conflict in Kosovo Kosova and that the victims were not taking active part in hostilities at the time the crime was committed and that the perpetrators knew or should have known that this was the case 312 Witness 62 testified that there was a blood feud between the family of Nurije and Istref Krasniqi and the family of KLA members Avdi and Brahim Krasniqi who were spreading rumours that Nurije and Istref Krasniqi were collaborators On 26 June 1998 according to Witness 62 Muhamet Krasniqi a son of Nurije and Istref Krasniqi was Case No IT-04-84-T 176 3 April 2008 shot in the neck an incident which Witness 62 linked to the blood feud The evidence shows that Rrustem Tetaj was involved in trying to settle the blood feud on 9 or 10 July 1998 As noted in section 7 below Witness 17 testified that during a meeting at Din Krasniqi’s home in Vranovac Vranoc on 12 July 1998 he received a list mentioning “Two women collaborators Turjakë – Kosturiq” The evidence does not establish that this refers to Nurije and Istref Krasniqi The Trial Chamber finds that the evidence does not allow it to draw any conclusion as to the reasons for the murders of Nurije and Istref Krasniqi 313 All three Accused are charged with the murders of Nurije and Istref Krasniqi as participants in a joint criminal enterprise The Trial Chamber will deal with this mode of liability in section 7 below 6 12 7 Murder of Zdravko Radunović 314 All three Accused are charged as participants in a joint criminal enterprise with the murder of Zdravko Radunović in violation of the laws or customs of war The Trial Chamber has heard relevant evidence from Witness 68 as well as forensic medical evidence The Trial Chamber has not admitted statements of the alleged kidnappers made to the MUP due to strong doubts as to their reliability For a further discussion of these non-admitted statements the Trial Chamber refers to section 2 1 above 315 Witness 68 testified that she last saw Zdravko Radunović a Montenegrin on the morning of 16 July 1998 at around 7 00 a m 1544 He told her then that he was on his way to work and to visit some relatives in Đakovica Gjakovë and Dobrić Dobriq in Đakovica Gjakovë municipality who had been attacked by the KLA a few days earlier 1545 At around 1 30 p m the witness heard from Zdravko Radunović for the last time when he told her on the telephone that he was leaving Đakovica Gjakovë for the village of Dobrić Dobriq 1546 The witness called the MUP in Peć Pejë at around 9 00 p m when Zdravko Radunović had not returned to his village and was informed that they had received information from MUP in Đakovica Gjakovë at 6 00 p m that uniformed KLA members had abducted Zdravko Radunović in the village of Dujak Dujakë in 1544 P1016 Witness 68 witness statement 9 October 2007 paras 4 6 Witness 68 T 9273 P1016 Witness 68 witness statement 9 October 2007 paras 6-7 1546 P1016 Witness 68 witness statement 9 October 2007 para 8 1545 Case No IT-04-84-T 177 3 April 2008 Đakovica Gjakovë municipality 1547 In September 1998 officials at the MUP in Đakovica Gjakovë told the witness that they had arrested Lëk and Krist Pervorfi two KLA members from Dujak Dujakë who had abducted Zdravko Radunović in Dujak Dujakë 1548 The officials further informed the witness that the two men had handed Zdravko Radunović over to their commander named “Vuk” and that Zdravko Radunović had subsequently been taken to Glođane Gllogjan in Dečani Deçan municipality where Ramush Haradinaj was in charge 1549 In January 1999 the MUP in Peć Pejë told the witness that Lëk and Krist Pervorfi had stated that Zdravko Radunović had been killed and that his remains had had been disposed of at Lake Radonjić Radoniq 1550 316 The Trial Chamber has also received forensic medical evidence with regard to Zdravko Radunović remains labelled “R-8 1” ICMP DNA analysis identified the remains labelled R-8 1 as those of Zdravko Radunović 1551 An autopsy conducted on 5 December 2003 described totally skeletonized disarticulated and largely incomplete human remains 1552 The cause of death could not be ascertained 1553 Dušan Dunjić1554 testified that remains R-8 1 were incomplete with many bones missing 1555 The remains had mistakenly been placed in the same body bag as body R-8 1556 The part of the skull that was found showed a trace of a bullet exit wound 1557 317 As referred to above the Trial Chamber received direct evidence that Zdravko Radunović was last seen on the morning of 16 July 1998 when he left for work and last heard from during a telephone conversation at 1 30 p m on the same day when he indicated that he was leaving Đakovica Gjakovë for Dobrić Dobriq The MUP subsequently informed Witness 68 that Zdravko Radunović was abducted by KLA soldiers in Dujak Dujakë transferred to Glođane Gllogjan killed and disposed of at 1547 P1016 Witness 68 witness statement 9 October 2007 paras 10-11 P1016 Witness 68 witness statement 9 October 2007 paras 12 14-16 Witness 68 T 9265-9268 9273-9274 1549 Witness 68 T 9267-9268 1550 Witness 68 T 9266-9267 9269 9271-9272 1551 Agreed Facts 26 November 2007 No 52 1552 Agreed Facts 26 November 2007 Nos 53-54 1553 Agreed Facts 26 November 2007 No 55 1554 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 1555 P618 Dušan Dunjić witness statement 8 June 2007 para 278 P665 Photographs of R-8 and R8 1 1556 P618 Dušan Dunjić witness statement 8 June 2007 para 276 P659 Autopsy report R-8 p 1 P662 Photographs of R-8 and R-8 1 P663 Autopsy report R-8 1 p 1 1548 Case No IT-04-84-T 178 3 April 2008 Lake Radonjić Radoniq This hearsay account of Witness 68 is the only evidence before the Trial Chamber about the alleged abduction and subsequent events It does not spell out the circumstances under which the MUP learned about the abduction Moreover it is multiple hearsay and Witness 68 does not specify her source For these reasons the Trial Chamber will not rely on Witness 68’s hearsay account of the alleged abduction and subsequent events In September 1998 Zdravko Radunović’s body was found at the Radonjić Radoniq canal 318 While at one autopsy conducted on 5 December 2003 the cause of death of Zdravko Radunović could not be ascertained Dunjić’s autopsy report in 1998 noticed a trace of a bullet exit wound on the part of the skull that was found Even assuming that Zdravko Radunović was murdered KLA involvement has to be ascertained to prove the charges of this Count In section 6 1 above the Trial Chamber has explained that the fact that a body was found in the Radonjić Radoniq canal area is not in itself conclusive as to who committed the killing or with which group if any the perpetrator was affiliated The fact that Zdravko Radunović went to visit relatives in Dobrić Dobriq because they were under KLA attack a few days before cannot establish a sufficient link between his disappearance and the KLA As explained above the Trial Chamber will not rely on Witness 68’s hearsay account on the alleged abduction and subsequent events For these reasons the Trial Chamber finds that the evidence before it does not allow for a conclusion beyond a reasonable doubt as to who committed the murder with which group if any the perpetrator was affiliated or whether the murder occurred in KLA custody The Trial Chamber therefore concludes that all three Accused should be acquitted of this charge 6 12 8 Murder of Velizar Stošić 319 All three Accused are charged as participants in a joint criminal enterprise with the murder of Velizar Stošić in violation of the laws or customs of war The Trial Chamber has heard relevant evidence from Miomir Stošić as well as forensic medical evidence 1557 P618 Dušan Dunjić witness statement 8 June 2007 para 281 P663 Autopsy report R-8 1 pp 12 4 P666 Photographs of R-8 1 Case No IT-04-84-T 179 3 April 2008 320 Miomir Stošić a Serbian from Belo Polje Bellopojë in Peć Pejë municipality 1558 testified that his father Velizar Stošić disappeared on or about 17 July 1998 during a bicycle trip to the family’s land which was close to Lođa Loxhë in Peć Pejë municipality 1559 Apart from the fact that there had been a tense situation in this area in July 1998 the witness could not provide details or facts relating to the disappearance of his father 1560 The witness who reported his father missing to the Red Cross in Peć Pejë and to the MUP was informed by the local police about one month after the disappearance that his father’s bike had been found on the family’s land close to Lođa Loxhë 1561 321 The Trial Chamber has also received forensic medical evidence with regard to Velizar Stošić remains labelled “R-8” Branimir Aleksandrić 1562 testified that body R8 was found on 11 September 1998 near the Radonjić Radoniq canal along the external side of the concrete wall where there were bullet markings together with eight other bodies 1563 A climbing rope about one centimetre thick and tied into a tight noose was found surrounding the neck area of body R-8 with a circumference of an average neck of an adult 1564 ICMP DNA analysis identified the body labelled R-8 as Velizar Stošić 1565 An autopsy conducted on the remains on 11 October 2005 found extensive damage to the head by a combination of blunt force trauma and gunshot injuries 1566 The left shoulder blade and the right thighbone also revealed defects and fractures which were consistent with gunshot injuries 1567 From the autopsy it was concluded that the cause of death was multiple gunshot wounds inflicted to the victim’s head and legs 1568 Dušan Dunjić 1569 testified that an autopsy conducted in September 1998 1558 Miomir Stošić T 5493-5494 Miomir Stošić T 5495-5498 5655-5658 P341 Photograph of Velizar Stošić 1560 Miomir Stošić T 5498-5499 1561 Miomir Stošić T 5500-5501 1562 P1260 Branimir Aleksandrić witness statement 26 June 2007 p 1 paras 1 4 6 9 11-12 245 Branimir Aleksandrić T 6732-6733 6737 P1113 Annex A to Branimir Aleksandrić witness statement 26 June 2007 p 1 P1114 Annex B to Branimir Aleksandrić witness statement 26 June 2007 1563 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 4 6 61-62 P414 Various photographs p 20 P416 Various photographs p 3 P418 Various photographs p 18 P645 Various photographs p 2 P649 Various photographs p 2 1564 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 111 113 118-119 Branimir Aleksandrić T 6769-6770 P415 Various photographs p 16 P452 Video of body recovery at canal 0 52’49- 0 53’12” 0 53’28” - 0 54’24” 1565 Agreed Facts 26 November 2007 No 48 1566 Agreed Facts 26 November 2007 Nos 49-50 1567 Agreed Facts 26 November 2007 No 50 1568 Agreed Facts 26 November 2007 No 51 1569 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 1559 Case No IT-04-84-T 180 3 April 2008 revealed that there were bullet holes on both sides of the head the right thigh bone and a bullet was found in the left kneecap 1570 322 Based on the evidence the Trial Chamber concludes that Velizar Stošić went missing on or about 17 July 1998 in the area between Belo Polje Bellopojë and Lođa Loxhë Velizar Stošić’s body was found at the Radonjić Radoniq canal The forensic medical evidence established multiple fractures consistent with gunshot injuries and therefore strongly suggests that Velizar Stošić was murdered In section 6 1 above the Trial Chamber has explained that the fact that a body was found in the Radonjić Radoniq canal area is not in itself conclusive as to who committed the killing or with which group if any the perpetrator was affiliated The Trial Chamber has not received any evidence about Velizar Stošić being in KLA custody or concerning the circumstances or perpetrators of the killing The bicycle Velizar Stošić was riding on the day of his disappearance was found in a field near Lođa Loxhë The Trial Chamber has heard evidence that the village of Lođa Loxhë was under KLA control at the time 1571 Even if Velizar Stošić disappeared in KLA controlled territory this would not reasonably exclude the possibility that other forces or persons unaffiliated with the KLA committed the killing 323 For these reasons and assuming that Velizar Stošić was murdered the Trial Chamber finds that the evidence before it does not allow for a conclusion as to who committed the murder with which group if any the perpetrator was affiliated or whether the murder occurred in KLA custody The Trial Chamber concludes that all three Accused should be acquitted of this charge 6 12 9 Murder of Malush Shefki Meha 324 All three Accused are charged as participants in a joint criminal enterprise with the murder of Malush Shefki Meha in violation of the laws or customs of war The Trial Chamber has heard relevant evidence from Hasime Racaj as well as forensic medical evidence 1570 P618 Dušan Dunjić witness statement 8 June 2007 paras 266-267 P659 Autopsy report R-8 pp 2-3 P661 Photographs R-8 pp 2-3 9 1571 Rrustem Tetaj T 3691-3692 3807-3809 3810-3811 P351 Cufë Krasniqi witness statement 14 June 2007 para 77 Cufë Krasniqi T 5805 5816 5818-5819 P885 Witness 17 witness statement 14 August 2007 para 35 P165 Analysis of the battle of Lođa Loxhë in Minutes of meeting on 5 July 1998 Case No IT-04-84-T 181 3 April 2008 325 Hasime Racaj from Peć Pejë 1572 stated that on 27 July 1998 around 8 a m her husband left their house to buy some medicine and this was the last time she saw him alive 1573 According to the witness her husband Malush Meha suffered from a mental illness 1574 After three days the witness reported the disappearance to the “Humanitarian Organization” in Peć Pejë 1575 326 The Trial Chamber has also received forensic medical evidence with regard to Malush Shefki Meha remains labelled “R-16” Branimir Aleksandrić 1576 testified that body R-16 was recovered on 12 September 1998 at the Radonjić Radoniq canal 1577 The body was found at the outer side of the concrete canal at a depth of about 30 centimetres 1578 ICMP DNA analysis concluded that the body labelled R-16 is that of Malush Meha 1579 An autopsy conducted on the remains on 5 December 2003 revealed a large fracture to the left of the hip which was consistent with gunshot injury 1580 Three bullets were also recovered from the remains 1581 It was concluded that the cause of death was a gunshot to the trunk 1582 Dušan Dunjić 1583 testified that an autopsy conducted in September 1998 revealed fractures on the right shoulder blade and the left half of the pelvic bone that could not have been caused by a fall 1584 327 Based on the evidence the Trial Chamber concludes that Malush Shefki Meha went missing on 27 July 1998 in Peć Pejë His remains were found at the Radonjić Radoniq canal The forensic medical evidence suggests that Malush Shefki Meha was murdered In section 6 1 above the Trial Chamber has explained that the fact that a body was found in the Radonjić Radoniq canal area is not in itself conclusive as to who committed the killing or with which group if any the perpetrator was 1572 P1235 Hasime Racaj witness statement 16 April 2007 p 1 P1235 Hasime Racaj witness statement 16 April 2007 para 9 1574 P1235 Hasime Racaj witness statement 16 April 2007 paras 7 17 1575 P1235 Hasime Racaj witness statement 16 April 2007 para 11 1576 P1260 Branimir Aleksandrić witness statement 26 June 2007 p 1 paras 1 4 6 9 11-12 245 Branimir Aleksandrić T 6732-6733 6737 P1113 Annex A to Branimir Aleksandrić witness statement 26 June 2007 p 1 P1114 Annex B to Branimir Aleksandrić witness statement 26 June 2007 1577 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 4 6 128 141 1578 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 141 143 Branimir Aleksandrić T 6766-6767 P449 Various photographs p 36 P452 Video of body recovery at canal 0 52’35” 1 12’46”- 1 21’11” 1579 Agreed Facts 26 November 2007 No 82 1580 Agreed Facts 26 November 2007 Nos 83-84 1581 Agreed Facts 26 November 2007 No 84 1582 Agreed Facts 26 November 2007 No 85 1583 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 1584 P618 Dušan Dunjić witness statement 8 June 2007 para 391 P702 Autopsy report R-16 pp 12 6 1573 Case No IT-04-84-T 182 3 April 2008 affiliated The Trial Chamber has not received any evidence about Malush Shefki Meha being in KLA custody or concerning the circumstances or perpetrators of the killing The Trial Chamber has heard evidence that Malush Shefki Meha suffered from a mental illness 328 For these reasons and assuming that Malush Shefki Meha was murdered the Trial Chamber finds that the evidence before it does not allow for a conclusion as to who committed the murder with which group if any the perpetrator was affiliated or whether the murder occurred in KLA custody The Trial Chamber concludes that all three Accused should be acquitted of this charge 6 12 10 Murder of Xhevat Berisha 329 All three Accused are charged as participants in a joint criminal enterprise with the murder of Xhevat Berisha in violation of the laws or customs of war The Trial Chamber has heard relevant evidence from Luan Tetaj as well as forensic medical evidence The Trial Chamber has reviewed the evidence of Luan Tetaj in section 6 11 above 330 The Trial Chamber has also received forensic medical evidence with regard to Xhevat Berisha remains labelled “R-5” Branimir Aleksandrić 1585 testified that body R-5 was found on 11 September 1998 near the Radonjić Radoniq canal along the external side of the concrete wall where there were bullet markings together with eight other bodies 1586 The OMPF concluded that the remains labelled R-5 are those of Xhevat Berisha 1587 An autopsy conducted on the remains on 8 December 2003 revealed that the victim had sustained a gunshot wound to the head 1588 There were additional gunshot injuries to the right arm chest and spine 1589 It was concluded that death had 1585 P1260 Branimir Aleksandrić witness statement 26 June 2007 p 1 paras 1 4 6 9 11-12 245 Branimir Aleksandrić T 6732-6733 6737 P1113 Annex A to Branimir Aleksandrić witness statement 26 June 2007 p 1 P1114 Annex B to Branimir Aleksandrić witness statement 26 June 2007 1586 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 4 6 61-62 P414 Various photographs p 20 P416 Various photographs p 3 P418 Various photographs p 18 P645 Various photographs p 2 P649 Various photographs p 2 1587 Agreed Facts 26 November 2007 No 40 1588 Agreed Facts 26 November 2007 No 42 See also P618 Dušan Dunjić witness statement 8 June 2007 para 245 P650 Autopsy report R-5 p 4 P652 Photographs of R-5 1589 Agreed Facts 26 November 2007 No 42 See also P618 Dušan Dunjić witness statement 8 June 2007 paras 244-245 P650 Autopsy report R-5 pp 1-2 4 P652 Photographs of R-5 Case No IT-04-84-T 183 3 April 2008 been caused by the gunshot injury to the head the gunshot injuries to the chest could also have been fatal 1590 331 As referred to in section 6 11 the Trial Chamber has heard evidence that Xhevat Berisha and his father Misin Berisha and brother Sali Berisha were last seen in the village of Glođane Gllogjan in Peć Pejë municipality in June or July 1998 In September 1998 Xhevat Berisha’s body was discovered at the Radonjić Radoniq canal The forensic medical evidence strongly suggests that Xhevat Berisha was murdered In section 6 1 above the Trial Chamber has explained that the fact that a body was found in the Radonjić Radoniq canal area is not in itself conclusive as to who committed the killing or with which group if any the perpetrator was affiliated The Trial Chamber has considered the killing of Sali and Misin Berisha in section 6 11 above and its conclusion concerning the possible perpetrators of those killings is relevant to the killing of Xhevat Berisha With the exception of the evidence considered in that section the Trial Chamber has not heard any evidence about Xhevat Berisha being abducted or being in KLA custody or concerning the circumstances or perpetrators of the killing 332 For these reasons and assuming that Xhevat Berisha was murdered the Trial Chamber finds that the evidence before it does not allow for a conclusion beyond a reasonable doubt as to who committed the murder which group if any the perpetrator was affiliated with or whether the murder occurred in KLA custody The Trial Chamber concludes that all three Accused should be acquitted of this charge 6 12 11 Murder of Kemajl Gashi 333 All three Accused are charged as participants in a joint criminal enterprise with the murder of Kemajl Gashi in violation of the laws or customs of war The Trial Chamber has heard relevant evidence from Medin Gashi as well as forensic medical evidence There is no need to reproduce the contents of the testimony Medin Gashi has given 1591 For the reasons explained below the Trial Chamber cannot rely on almost any of its content 1590 1591 Agreed Facts 26 November 2007 Nos 42-43 Medin Gashi T 4840-4899 4910-4936 Case No IT-04-84-T 184 3 April 2008 334 The Trial Chamber has received forensic medical evidence with regard to Kemajl Gashi remains labelled “R-2” Branimir Aleksandrić 1592 testified that body R-2 was found on 11 September 1998 near the Radonjić Radoniq canal along the external side of the concrete wall where there were bullet markings together with eight other bodies 1593 ICMP DNA analysis identified the body labelled R-2 as that of Kemajl Gashi 1594 An autopsy conducted on the remains on 8 December 2003 revealed fractures to the skull left shoulder blade left arm ribs and the higher spinal column which suggested infliction of gunshot wounds 1595 Other fractures to both sides of the hip bone and the base of the spine were consistent with at least two different gunshot impacts to the pelvis 1596 The autopsy concluded that the cause of death was gunshot wounds to the pelvis 1597 Dušan Dunjić 1598 testified that body R-2 was wearing blue jeans and a red-and-green striped T-shirt 1599 An autopsy conducted on the remains in September 1998 revealed a bullet entry wound on the right side exit wound on the left side of the pelvic bone and multiple fractures on the ribs left arm left shoulder blade and right lower jaw 1600 The non-pelvic fractures were consistent with having been caused by blows from a blunt object and could not have been caused by a fall 1601 These non-pelvic fractures were most probably caused ante-mortem and if left untreated would probably lead to the person bleeding to death 1602 335 The Trial Chamber finds Medin Gashi’s testimony in relation to this count confusing inconsistent and contradictory in relation to his previous statements given to the parties and the statement his sister gave to the Prosecution The only fact that the Trial Chamber finds reliable from his evidence is that Kemajl Gashi was at the 1592 P1260 Branimir Aleksandrić witness statement 26 June 2007 p 1 paras 1 4 6 9 11-12 245 Branimir Aleksandrić T 6732-6733 6737 P1113 Annex A to Branimir Aleksandrić witness statement 26 June 2007 p 1 P1114 Annex B to Branimir Aleksandrić witness statement 26 June 2007 1593 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 61-62 P414 Various photographs p 20 P416 Various photographs p 3 P418 Various photographs p 18 P645 Various photographs p 2 P649 Various photographs p 2 1594 Agreed Facts 26 November 2007 No 28 1595 Agreed Facts 26 November 2007 Nos 29-30 1596 Agreed Facts 26 November 2007 No 30 1597 Agreed Facts 26 November 2007 No 31 1598 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 1599 P807 Autopsy report R-2 p 3 P809 Photographs of R-2 pp 5-6 1600 P618 Dušan Dunjić witness statement 8 June 2007 para 207-208 P807 Autopsy report R-2 p 6 P809 Photographs of R-2 pp 2-3 1601 P618 Dušan Dunjić witness statement 8 June 2007 paras 208-209 1602 P618 Dušan Dunjić witness statement 8 June 2007 para 209 Case No IT-04-84-T 185 3 April 2008 KLA headquarters at the school building in Barane Baran sometime in the summer of 1998 However it is unclear why Kemajl Gashi was there whether he was a victim or provided services to the KLA what happened to him there whether he ever left Barane Baran and if so where he then went In September 1998 Kemajl Gashi’s body was discovered at the Radonjić Radoniq canal The forensic medical evidence strongly suggests that Kemajl Gashi was murdered In section 6 1 above the Trial Chamber has explained that the fact that a body was found in the Radonjić Radoniq canal area is not in itself conclusive as to who committed the killing or with which group if any the perpetrator was affiliated For these reasons even assuming that Kemajl Gashi was murdered the Trial Chamber finds that the evidence before it does not allow for a conclusion beyond a reasonable doubt as to who committed the murder which group if any the perpetrator was affiliated with or whether the murder occurred in KLA custody The Trial Chamber concludes that all three Accused should be acquitted of this charge 6 12 12 Murder of Sanije Balaj 336 All three Accused are charged as participants in a joint criminal enterprise with the murder of Sanije Balaj in violation of the laws or customs of war The Trial Chamber has heard relevant evidence from a number of witnesses as well as forensic medical evidence 337 Shaban Balaj a Kosovar Albanian from Donji Streoc Strellci i Ultë in Dečani Deçan municipality was a KLA soldier from the end of March 1998 until he resigned in August 1998 1603 Shaban Balaj lived with his sister Sanije Balaj in Donji Streoc Strellci i Ultë in 1998 1604 Shaban Balaj testified that Sanije Balaj was not a member of the KLA 1605 However Sanije Balaj had on one occasion worn Shaban Balaj’s KLA uniform and carried his gun when shopping for food-stuffs in Mališevo Malishevë for people in her village 1606 The witness testified that on 12 August 1998 at 8 30 am Sanije Balaj left Donji Streoc Strellci i Ultë by car with the witness’s relatives 1607 Sanije Balaj was wearing civilian clothes 1608 She intended to go 1603 P922 Shaban Balaj witness statement 2 June 2007 paras 4 17 Shaban Balaj T 8649 8703 1604 Shaban Balaj T 8649 8680 1605 Shaban Balaj T 8652 8702 8704 1606 P922 Shaban Balaj witness statement 2 June 2007 para 15 Shaban Balaj T 8652 8702-8704 1607 Shaban Balaj T 8649-8650 8653 8686 Case No IT-04-84-T 186 3 April 2008 to Peć Pejë to buy a mobile phone and Shaban Balaj had given her DEM 2 700 for this purpose 1609 The day before the trip Shaban Balaj had received a KLA authorisation card from the local KLA commander for her to travel to Rosulje Rosuje in Peć Pejë municipality 1610 Following her departure Shaban Balaj never saw Sanije Balaj alive again 1611 On 12 August 1998 between 2 00 and 4 00 p m the witness’s relatives returned 1612 They told him that they had travelled with Sanije Balaj to Barane Baran in Peć Pejë municipality where they were stopped at a KLA checkpoint 1613 The witness’s relatives said they were stopped by Metë Krasniqi Avni Krasniqi Iber Krasniqi Vesel Dizdari and another person who the witness did not know at the time 1614 Later the witness found out that his name was Idriz Gashi a k a “Galani” 1615 The witness’s relatives were later told that she had been interrogated by Cufë Krasniqi but that she had already gone back to Donji Streoc Strellci i Ultë 1616 The witness refers to Metë Avni Iber and Cufë Krasniqi and “Galani” as “self-styled KLA … under the command of nobody” 1617 Shaban Balaj and his relatives then went to look for the men who had stopped Sanije Balaj 1618 Near Vranovac Vranoc in Peć Pejë municipality the witness encountered Metë Krasniqi 1619 Metë Krasniqi told the witness that he had stopped Sanije Balaj and that she was taken to Glođane Gllogjan in Dečani Deçan municipality 1620 The witness did not believe Metë Krasniqi 1621 The witness then went to Zlopek Qellopek in Peć Pejë municipality where he spoke to Vesel Dizdari 1622 Vesel Dizdari told the witness that Metë Krasniqi had stopped Sanije Balaj 1623 Vesel Dizdari advised the witness to search for Sanije Balaj since according to Dizdari Metë Avni and Iber Krasniqi as well as Galani were dangerous people 1624 The witness later 1608 Shaban Balaj T 8652-8653 Shaban Balaj T 8650 8682 1610 Shaban Balaj T 8655 1611 Shaban Balaj T 8653 1612 Shaban Balaj T 8653 8686 1613 Shaban Balaj T 8651 8653-8654 8656 8660 8686 1614 Shaban Balaj T 8653-8654 8660 8686 1615 Shaban Balaj T 8654 8657-8658 8697-8698 1616 Shaban Balaj T 8653 8686-8687 1617 Shaban Balaj T 8651 8653 8688 8693 1618 Shaban Balaj T 8654-8655 1619 Shaban Balaj T 8655-8656 1620 Shaban Balaj T 8656-8657 8701 See also P1238 Witness 72 witness statement 13 June 2007 para 15 1621 Shaban Balaj T 8657 1622 Shaban Balaj T 8657-8659 1623 Shaban Balaj T 8659-8660 1624 Shaban Balaj T 8657 8660 See also P1238 Witness 72 witness statement 13 June 2007 para 16 1609 Case No IT-04-84-T 187 3 April 2008 learned from Vesel Dizdari that Cufë Krasniqi had interrogated Sanije Balaj 1625 On 13 or 14 August 1998 Shaban Balaj met Cufë Krasniqi 1626 Cufë Krasniqi told the witness that Avni and Iber Krasniqi had brought Sanije Balaj in for interrogation as a Serbian collaborator 1627 Cufë Krasniqi had questioned Sanije Balaj and then released her and “Galani” had been present during the interrogation and had seen the money Sanije Balaj carried with her 1628 Cufë Krasniqi added that after he had released her Iber and Avni Krasniqi had taken Sanije Balaj away in a friendly manner 1629 338 On 13 August 1998 Shaban Balaj met the FARK commander Tahir Zemaj in Papračane Prapacan in Dečani Deçan municipality and told him of Sanije Balaj’s disappearance 1630 Tahir Zemaj said he would take measures and according to Shaban Balaj subsequently questioned the men who had stopped Sanije Balaj 1631 When Shaban Balaj later returned to Barane Baran Tahir Zemaj introduced him to Fadil Nimani and Hysen Gashi 1632 Over the next four or five days Fadil Nimani and Hysen Gashi asked the witness questions about Sanije Balaj’s disappearance and took notes on his answers 1633 On the fourth or fifth day Fadil Nimani told Shaban Balaj that Sanije Balaj was dead 1634 339 Two or three days after the disappearance Shaban Balaj’s wife told him that Ramush Haradinaj and Gani Gjukaj had visited his home to offer their condolences 1635 The witness believed that Ramush Haradinaj was not involved in the disappearance and death of Sanije Balaj 1636 On one of the following days Shaban Balaj went to the house of Metë Krasniqi to resolve the issue of Sanije Balaj’s disappearance 1637 In accordance with the Kanun of the area Shaban Balaj was accompanied by 20 people including village elders 1638 The group told Din Krasniqi to inform Metë Krasniqi that they wanted the body of Sanije Balaj to be returned to her home village of Donji 1625 Shaban Balaj T 8658-8659 Shaban Balaj T 8664 8666-8667 1627 Shaban Balaj T 8668 1628 Shaban Balaj T 8668-8669 8689 1629 Shaban Balaj T 8696 1630 Shaban Balaj T 8663-8664 See P885 Witness 17 witness statement 14 August 2007 para 10 1631 Shaban Balaj T 8663-8664 1632 Shaban Balaj T 8664-8665 1633 Shaban Balaj T 8665-8666 1634 Shaban Balaj T 8666 1635 Shaban Balaj T 8670 1636 Shaban Balaj T 8670-8671 8705 1637 Shaban Balaj T 8671-8672 8689-8690 1638 Shaban Balaj T 8671-8672 8690 The Kanun is a set of customary rules used in northern Albania and in Kosovo 1626 Case No IT-04-84-T 188 3 April 2008 Streoc Strellci i Ultë as was dictated by the Kanun 1639 Three or four days later Metë Krasniqi attended a meeting of 50-60 people and admitted that he had stopped Sanije Balaj but swore that he was not responsible for her death 1640 Metë Krasniqi said that Avni Krasniqi and a person called “Colonel Galani” were responsible for Sanije Balaj’s death 1641 Metë Krasniqi also said that the body had been buried in a place called Lugu i Isufit near Vranovac Vranoc in Peć Pejë municipality but was later removed by Avni and Iber Krasniqi and a man called Togeri 1642 Avni and Iber Krasniqi had been forced to remove the body by one Galani 1643 Metë Krasniqi added that Togeri had transported the body in his jeep 1644 Zymer Hasanaj had told them to remove the body 1645 The witness found out in 2002 that “Togeri” was in fact Idriz Balaj but did not believe Idriz Balaj was involved in the death of Sanije Balaj or the removal of the body 1646 Shaban Balaj went to Lugu i Isufit to search for Sanije Balaj’s body 1647 In a ravine near a well the witness found a place where the soil had been freshly dug and he “found her … blood there” 1648 Although the witness does not clarify how he knew it was her blood he believed that Sanije Balaj was buried there and that the place had then been covered 1649 The witness believed Sanije Balaj was killed for the money she had with her on the day of her disappearance 1650 340 Witness 72 stated that on 12 August 1998 Sanije Balaj was travelling in a car from the village of Donji Streoc Strellci i Ultë in Dečani Deçan municipality to Rosulje Rosuje in Peć Pejë municipality 1651 The car passed through the village of Barane Baran Peć Pejë municipality where there were between one and three hundred soldiers 1652 Amongst the soldiers were Metë Krasniqi Avni Krasniqi and Vesel Dizdari 1653 At a checkpoint Metë Krasniqi accompanied by two or three soldiers 1639 Shaban Balaj T 8672 8690-8691 Shaban Balaj T 8672-8673 8691-8693 1641 Shaban Balaj T 8673 8692-8693 1642 Shaban Balaj T 8673-8674 8677 8688 8693 1643 Shaban Balaj T 8673-8675 8693 1644 Shaban Balaj T 8674 1645 Shaban Balaj T 8673 1646 Shaban Balaj T 8674-8675 1647 Shaban Balaj T 8677-8678 1648 Shaban Balaj T 8678 1649 Shaban Balaj T 8678 1650 Shaban Balaj T 8650 8679 8682 8689 1651 P1238 Witness 72 witness statement 13 June 2007 para 6 1652 P1238 Witness 72 witness statement 13 June 2007 para 8 1653 P1238 Witness 72 witness statement 13 June 2007 para 8 1640 Case No IT-04-84-T 189 3 April 2008 signalled the car to stop 1654 Avni Krasniqi produced a notebook with Sanije Balaj’s name in it as a person to be interrogated 1655 Sanije Balaj was taken to the school building which served as the KLA barracks 1656 A relative of the witness was later told that Sanije Balaj had been sent to Gani Gjukaj in Streoc Strellci in Dečani Deçan municipality 1657 However KLA soldiers in that village said that they had not seen her 1658 341 Cufë Krasniqi a KLA commander from Vranovac Vranoc in Peć Pejë municipality 1659 testified that some day in August 1998 he was at the elementary school in Barane Baran in Peć Pejë municipality where the KLA occupied three buildings 1660 The witness was with Nazif Ramabaja when Avni and Iber Krasniqi two members of the military police and relatives of the witness came to see them 1661 They reported that the military police had detained a woman who was suspected of being a Serbian collaborator and brought her to the old school building in which the KLA military police unit was stationed 1662 The commander of the military police unit Hasan Gashi 1663 was not present on that day 1664 Avni and Iber Krasniqi informed Cufë Krasniqi and Ramabaja that when she had been stopped by the military police she said she was on her way from Streoc Strellc in Dečani Deçan municipality to Peć Pejë but the route she took aroused their suspicion 1665 Moreover Avni and Iber Krasniqi told them that they suspected she was working for a Serbian called Dragan Corović whose name was in a notebook they had found on her 1666 Ramabaja told Cufë Krasniqi to interrogate the woman 1667 The witness found her in a room in the old school building dressed in civilian clothes and under the custody of an armed KLA soldier whose 1654 P1238 Witness 72 witness statement 13 June 2007 para 9 P1238 Witness 72 witness statement 13 June 2007 para 9 1656 P1238 Witness 72 witness statement 13 June 2007 paras 9-10 1657 P1238 Witness 72 witness statement 13 June 2007 paras 12-13 1658 P1238 Witness 72 witness statement 13 June 2007 para 13 1659 P351 Cufë Krasniqi witness statement 14 June 2007 p 1 paras 1-2 1660 Cufë Krasniqi T 5771 5777 5818 1661 Cufë Krasniqi T 5771 5782 5818 5832 1662 P351 Cufë Krasniqi witness statement 14 June 2007 para 24 Cufë Krasniqi T 5771-5773 5775 5777 1663 Based on the evidence the Trial Chamber understands Hasan and Hysen Gashi to refer to the same person 1664 P351 Cufë Krasniqi witness statement 14 June 2007 paras 24 72 Cufë Krasniqi T 5714-5715 5777 1665 Cufë Krasniqi T 5771-5772 1666 Cufë Krasniqi T 5772 5778 1667 Cufë Krasniqi T 5771-5773 5832 1655 Case No IT-04-84-T 190 3 April 2008 nickname was “Galanj” 1668 Only after 2002 did the witness learn that “Galanj’s” real name was Idriz Gashi 1669 Cufë Krasniqi recognized the suspect by her face since he had earlier seen her in a video-clip of a group of girls singing a song devoted to the KLA 1670 She told the witness that her name was Sanije Balaj and explained that she wanted to buy a telephone in Peć Pejë and had taken a longer route there because it was safer and in order to see her aunt in Klinčina Kliqinë Peć Pejë municipality on the way 1671 Avni and Iber Krasniqi intervened saying that Sanije Balaj was lying and Cufë Krasniqi ordered them to leave the room which they did 1672 The witness saw that Sanije Balaj was in possession of a certain amount of money which satisfied the witness that she really intended to buy a telephone 1673 After about five minutes of interrogation Cufë Krasniqi decided to release her 1674 The witness told her that she would need permission by the KLA staff of her village Streoc Strellc to go to Peć Pejë 1675 She agreed to be given a lift home by Avni and Iber Krasniqi in a red Volkswagen Golf 1676 Cufë Krasniqi last saw her leaving in the car with Avni and Iber Krasniqi 1677 He reported the events to Nazif Ramabaja 1678 Approximately two or three days after the interrogation Sanije Balaj’s brother Shaban Balaj came to see the witness at the school and made inquiries about the whereabouts of his sister 1679 He told Cufë Krasniqi that his sister had not come home on the day of the interrogation 1680 Later Nazif Ramabaja told Cufë Krasniqi that there was an investigation carried out in Prapačane Prapacan in Dečani Deçan municipality and that the witness should go there to give a statement about Sanije Balaj 1681 In Prapačane Prapacan Cufë Krasniqi described to Fadil Nimoni the local military police commander who led the investigation what had happened 1682 The witness stated that both Avni and Iber Krasniqi as well as Metë Krasniqi Avni’s brother were present in Prapačane Prapacan 1668 Cufë Krasniqi T 5773-5774 5779 5824 5832 Cufë Krasniqi T 5779 5788 1670 Cufë Krasniqi T 5774 5824-5825 5833 5856-5857 1671 Cufë Krasniqi T 5774-5775 1672 Cufë Krasniqi T 5775-5776 1673 Cufë Krasniqi T 5778 1674 Cufë Krasniqi T 5777-5778 5833 1675 Cufë Krasniqi T 5776-5777 1676 Cufë Krasniqi T 5779-5780 5823 1677 Cufë Krasniqi T 5780 5823-5824 1678 Cufë Krasniqi T 5833-5834 1679 Cufë Krasniqi T 5780-5782 5789 1680 Cufë Krasniqi T 5790 1681 Cufë Krasniqi T 5783-5785 5825-5826 1682 Cufë Krasniqi T 5784 5786 5834 1669 Case No IT-04-84-T 191 3 April 2008 on that day but not Idriz Gashi 1683 According to Cufë Krasniqi Tahir Zemaj knew about the investigation 1684 342 Avni Krasniqi from Vranovac Vranoc in Peć Pejë municipality 1685 testified that he joined the FARK military police in Barane Baran in Peć Pejë municipality in July 1998 and that Hasan Gashi was the military police commander 1686 Gashi was under the command of Nazif Ramabaja 1687 Avni Krasniqi testified that one afternoon in August 1998 he and some other military policemen including Ahmet Ukaj saw two soldiers who the witness could not identify bringing Sanije Balaj to the Red School in Barane Baran where the military barracks were 1688 Avni Krasniqi saw through the window that Cufë Krasniqi interrogated Sanije Balaj inside the school building 1689 The witness then heard that Sanije Balaj was allowed to return home although he did not know who had released her but stated that she waited inside the school building for her relatives to come and take her home 1690 After one or one and a half hour the witness saw Idriz Gashi a k a Galani enter the school speak to Cufë Krasniqi and then leave with Sanije Balaj 1691 Galani was wearing a black uniform and cap with a KLA patch and he was armed 1692 Galani told the witness that he was the commander of Lugu i Drinit and that he had been appointed by and reported to Ramush Haradinaj and Sali Veseli 1693 The witness acknowledged that many people called themselves commanders at this time 1694 A KLA transfer order signed by Ramush Haradinaj and dated 7 July 1998 indicates that “the fighter” Idriz Gashi was transferred at his own request from the Dukagjin area to another area 1695 Exiting the school building Galani had a little white notebook in his hand and was swearing at the witness and the other soldiers standing there asking them how they could have released her and telling them that she had names of Serb criminals in her notebook 1696 He also read out the names to the 1683 Cufë Krasniqi T 5787-5788 Cufë Krasniqi T 5786 1685 Avni Krasniqi T 10709 10712 1686 Avni Krasniqi T 10720-10722 10780 1687 Avni Krasniqi T 10722 10781 1688 Avni Krasniqi T 10721 10723-10725 10806-10807 1689 Avni Krasniqi T 10724 10726 10729 10808 1690 Avni Krasniqi T 10729-10730 10816 1691 Avni Krasniqi T 10726-10727 10729-10730 10808-10809 10816 1692 Avni Krasniqi T 10728 10736 1693 Avni Krasniqi T 10728 10732 10784 10787 1694 Avni Krasniqi T 10787 1695 P172 KLA Transfer Order signed by Ramush Haradinaj 7 July 1998 1696 Avni Krasniqi T 10727 10731 10816 1684 Case No IT-04-84-T 192 3 April 2008 witness and the other soldiers 1697 The witness knew some of the names as policemen in Peć Pejë 1698 343 Galani then ordered the witness to take him and Sanije Balaj to the headquarters in Glođane Gllogjan in Dečani Deçan municipality 1699 The three got in a car with Avni Krasniqi driving Galani in the front seat and Sanije Balaj in the back seat and set off in the direction of Glođane Gllogjan 1700 After about 20 minutes drive at Lugu i Isufit Sanije Balaj asked Galani if they could have a private conversation whereupon Galani told Avni Krasniqi to stop the car 1701 Galani and Sanije Balaj got out and walked away 1702 Sanije Balaj had a handbag or “accessories” that she left in the car 1703 Avni Krasniqi stayed in the car 1704 After about 40 seconds he heard pistol shots 1705 When Galani came back Avni Krasniqi asked him what he had done whereupon Galani told him not to say anything or he would suffer the same fate 1706 The witness also remembered that Galani at some point yelled at some children tending livestock nearby to go away 1707 Avni Krasniqi then took Galani back to Barane Baran in Peć Pejë municipality left the car and took his own car and went home 1708 The witness’s brother Metë Krasniqi told the witness that he had quarrelled with Galani later that same day about what had happened and Galani had told him that he had killed Sanije Balaj 1709 The witness also heard that Galani told others that he had killed Sanije Balaj upon the order of Sali Veseli 1710 344 That same evening Iber Krasniqi and Galani came and picked up Avni Krasniqi to go and bury Sanije Balaj 1711 Galani showed Avni Krasniqi the place where she had been killed at which point Ahmet Ukaj and other men who had been told by a child about the killing also arrived 1712 Galani was armed and pointed his gun at the arriving 1697 Avni Krasniqi T 10730 Avni Krasniqi T 10727 1699 Avni Krasniqi T 10731-10732 10809 1700 Avni Krasniqi T 10732-10733 1701 Avni Krasniqi T 10734-10735 10817 1702 Avni Krasniqi T 10735 10806 10817 1703 Avni Krasniqi T 10737 1704 Avni Krasniqi T 10735 10806 1705 Avni Krasniqi T 10735 10817 1706 Avni Krasniqi T 10735-10736 10818 1707 Avni Krasniqi T 10736-10737 10818 1708 Avni Krasniqi T 10736 10738 1709 Avni Krasniqi T 10738-10741 10818 1710 Avni Krasniqi T 10741 1711 Avni Krasniqi T 10742-10743 10826 1712 Avni Krasniqi T 10742 1698 Case No IT-04-84-T 193 3 April 2008 men and told them to stop 1713 In the meantime Avni Krasniqi was burying Sanije Balaj and Galani ordered Ahmet Ukaj to help with this 1714 Avni Krasniqi and Ahmet Ukaj buried Sanije Balaj in a shallow hole which was not deeper than 30 to 40 centimetres 1715 Three days later Galani Toger and two other persons came to the Red School in Barane Baran in a black jeep and picked up Avni Krasniqi to go and unearth the body of Sanije Balaj and rebury it in another place 1716 Galani ordered them to do so and told them that they would be putting the body in a safer place 1717 Galani stayed behind in Barane Baran while the others went 1718 The witness testified that he had seen Toger many times before 1719 The witness took Iber Krasniqi with him for help and out of security concerns 1720 Avni Krasniqi Iber Krasniqi and the two other persons dug up the body put it in a blanket and then in the trunk of the jeep 1721 Avni Krasniqi and Iber Krasniqi were then driven to Bistrica Bistricë where they were dropped off and the witness did not know where Toger and the others went afterwards 1722 345 Avni Krasniqi testified that there was an investigation into the death of Sanije Balaj and that he was called in for an interview by a man called Fadil Nimonaj 1723 According to the witness at that time Galani had fled the area 1724 Metë Krasniqi told the witness that Ramush Haradinaj and Gjane Gjukaj inquired into what had happened to Sanije Balaj and that he had told them that she had been killed and who had killed her 1725 346 Zymer Hasanaj a KLA soldier in Mali Vranovac Vranoc I Vogël in Peć Pejë 1726 testified that on the day of the killing of Sanije Balaj in August 1998 he returned home at around 6 p m where his son Durim told him about an incident he had witnessed 1727 Durim told his father that he had been minding cattle together with other boys at a place called Lugu i Isufit and that sometime between 12 noon and 2 p m they saw two men 1713 Avni Krasniqi T 10742-10743 Avni Krasniqi T 10743 1715 Avni Krasniqi T 10744 1716 Avni Krasniqi T 10744-10745 10750 10842 10847 1717 Avni Krasniqi T 10747 10749-10750 1718 Avni Krasniqi T 10746-10748 10842 1719 Avni Krasniqi T 10841 10847-10848 1720 Avni Krasniqi T 10745-10746 10752-10754 1721 Avni Krasniqi T 10746-10747 10844 1722 Avni Krasniqi T 10747-10748 1723 Avni Krasniqi T 10781 1724 Avni Krasniqi T 10781 1725 Avni Krasniqi T 10781-10783 1726 P923 Zymer Hasanaj witness statement 1 October 2007 paras 1-2 Zymer Hasanaj T 8720 1727 P923 Zymer Hasanaj witness statement 1 October 2007 para 16 Zymer Hasanaj T 8738 1714 Case No IT-04-84-T 194 3 April 2008 forcing a woman out of a vehicle 1728 One of the men called out to the boys to leave 1729 They obeyed whereupon Durim heard three gunshots 1730 Zymer Hasanaj decided to go with Durim to the scene of the incident described by his son which was about ten minutes’ walk from Mali Vranovac Vranoc i Vogël 1731 They went there with other people from the village including Ahmet Ukaj 1732 At Lugu i Isufit they were ordered to stop by a man who according to Hasanaj was probably an armed KLA fighter 1733 Ahmet Ukaj remained at Lugu i Isufit for about an hour after Hasanaj had returned home with Durim and then visited Hasanaj to relate to him what had happened in his absence 1734 Ukaj told Hasanaj that he had seen two people at Lugu i Isufit namely Idriz Gashi and Avni Krasniqi 1735 Ukaj also told Hasanaj that he had been threatened by Gashi not to speak to anyone about the fact that Gashi had killed a woman named Sanije Balaj 1736 That same night Hasanaj went with Ukaj to inform the KLA commander of Mali Vranovac Vranoc i Vogël Din Krasniqi about the incident 1737 Hasanaj asked Din Krasniqi to report the incident to Nazif Ramabaja the commander in Barane Baran in Peć Pejë municipality 1738 Din Krasniqi said that he would follow up the matter and that the person responsible would be punished 1739 347 Ahmet Ukaj a KLA soldier from Mali Vranovac Vranoci i Vogël in Peć Pejë municipality 1740 testified that one morning on a day in August 1998 he saw a young woman who he later found out was Sanije Balaj being brought to the Red School building in Barane Baran in Peć Pejë municipality 1741 Sanije Balaj was with a group of people whom the witness did not recognize 1742 About fifteen minutes later the witness 1728 P923 Zymer Hasanaj witness statement 1 October 2007 para 16 Zymer Hasanaj T 8738 See also P1226 Ahmet Ukaj witness statement 11 November 2007 para 12 Ahmet Ukaj T 10665-10660 1729 P923 Zymer Hasanaj witness statement 1 October 2007 para 16 1730 P923 Zymer Hasanaj witness statement 1 October 2007 para 16 See also P1226 Ahmet Ukaj witness statement 11 November 2007 para 12 Ahmet Ukaj T 10665-10660 1731 P923 Zymer Hasanaj witness statement 1 October 2007 paras 16-17 P925 Photographs of area of Lugu i Isufit 1732 P923 Zymer Hasanaj witness statement 1 October 2007 para 17 1733 P923 Zymer Hasanaj witness statement 1 October 2007 para 18 1734 Zymer Hasanaj T 8731 1735 P923 Zymer Hasanaj witness statement 1 October 2007 para 18 1736 P923 Zymer Hasanaj witness statement 1 October 2007 para 20 1737 P923 Zymer Hasanaj witness statement 1 October 2007 paras 20-21 1738 P923 Zymer Hasanaj witness statement 1 October 2007 para 21 1739 P923 Zymer Hasanaj witness statement 1 October 2007 para 21 1740 P1226 Ahmet Ukaj witness statement 11 November 2007 para 1 Ahmet Ukaj T 10656 1741 P1226 Ahmet Ukaj witness statement 11 November 2007 paras 8-10 Ahmet Ukaj T 10660 10668 1742 P1226 Ahmet Ukaj witness statement 11 November 2007 para 9 Ahmet Ukaj T 10668 Case No IT-04-84-T 195 3 April 2008 saw her leave with four or five men who the witness also did not recognize 1743 That same evening when Ahmet Ukaj came back to his home village of Vranovac Vranoc he met Zymer Hasanaj 1744 The latter told him that someone had been killed at Lugu i Isufit 1745 The witness Zymer Hasanaj Hysen Ukaj and others then went to Lugu i Isufit in order to find out what had happened 1746 In the forest the witness met Idriz Gashi a k a Galani who the witness had heard was a commander of Lugu i Drinit in Klina Klinë municipality 1747 Galani pointed a Kalashnikov at the group and once they had told him why they had come Galani admitted that he had killed the woman 1748 Galani told the group that he had killed her because he had found her with a notebook 1749 Galani read out some Serbian names from the notebook and said that the notebook also contained the phone numbers of Serbians 1750 The witness recognized the names as those of Serbian police officers who he had heard were working in Dečani Deçan municipality 1751 Galani then ordered Hysen Ukaj and the witness to stay and the others to leave at which point Avni Krasniqi came out from behind some bushes 1752 Galani ordered the witness to help Avni Krasniqi bury the woman 1753 When the witness saw the body he recognized it as the same woman who had been brought to Barane Baran that morning 1754 She had been shot in the chest 1755 After the witness had helped Avni Krasniqi put the body in a hole that had been dug he returned to Galani who again told him that he had killed the woman 1756 Galani then told the witness and Hysen Ukaj to leave and they went back to Vranovac Vranoci where the witness told the whole story to Zymer Hasanaj 1757 A few days later after having been called for an interview as part of an investigation the witness reported to Fadil Nimoni what had happened 1758 1743 P1226 Ahmet Ukaj witness statement 11 November 2007 para 10 P1226 Ahmet Ukaj witness statement 11 November 2007 para 12 1745 P1226 Ahmet Ukaj witness statement 11 November 2007 para 12 1746 P1226 Ahmet Ukaj witness statement 11 November 2007 para 13 1747 P1226 Ahmet Ukaj witness statement 11 November 2007 paras 11 15 17 1748 P1226 Ahmet Ukaj witness statement 11 November 2007 para 15 1749 P1226 Ahmet Ukaj witness statement 11 November 2007 para 15 1750 P1226 Ahmet Ukaj witness statement 11 November 2007 para 15 1751 P1226 Ahmet Ukaj witness statement 11 November 2007 para 15 Ahmet Ukaj T 10663 1752 P1226 Ahmet Ukaj witness statement 11 November 2007 para 16 1753 P1226 Ahmet Ukaj witness statement 11 November 2007 para 18 1754 P1226 Ahmet Ukaj witness statement 11 November 2007 para 19 1755 P1226 Ahmet Ukaj witness statement 11 November 2007 para 19 1756 P1226 Ahmet Ukaj witness statement 11 November 2007 para 20 1757 P1226 Ahmet Ukaj witness statement 11 November 2007 para 21 1758 P1226 Ahmet Ukaj witness statement 11 November 2007 para 22 Ahmet Ukaj T 10660-10661 1744 Case No IT-04-84-T 196 3 April 2008 348 Witness 17 testified that a military police unit in the Barane Baran in Peć Pejë municipality was set up on 13 July 1998 and that Hasan Gashi was elected chief of police 1759 According to Witness 17 Avni and Iber Krasniqi were not military policemen within the framework of the third brigade but acknowledged that Avni Krasniqi might have performed the functions of military police even without the authorization from the third brigade 1760 The witness also testified that Metë Krasniqi was not part of the structure of the third brigade 1761 He did however function as a de facto military policeman in Barane Baran and had an office there 1762 According to Witness 17 Metë Krasniqi stopped Sanije Balaj 1763 Some of Sanije Balaj’s relatives reported her disappearance to Tahir Zemaj in August 1998 1764 Tahir Zemaj instructed two KLA military policemen Hysen Gashi and Fadil Nimani to investigate the disappearance 1765 At the same time Sadri Selca who was responsible for brigade security in the third brigade was also instructed to investigate the disappearance 1766 According to an Official Note of 26 August 1998 signed by Sadri Selca Sanije Balaj was taken by Metë Krasniqi to “the commander” who authorized “Cufa” to talk to her 1767 After “Cufa” had released her she was taken by a person called Galan to an unknown place and killed 1768 According to the Note “in all probability Togeri then took her to Lake Radoniq” 1769 The Note also states that Sanije Balaj was killed because she admitted to working for the Serbian police 1770 Witness 17 asked Metë Krasniqi some time after Sanije Balaj’s disappearance what had happened to her and he admitted that he had arrested her but then handed her over to two other persons Idriz Gashi and Avni Krasniqi 1771 Witness 17 had previously met Idriz Gashi who had told him that he was Ramush Haradinaj’s soldier but that he wanted to join a FARK brigade 1772 1759 Witness 17 T 7666-7667 7695 7698-7699 Witness 17 T 7669-7671 7736 1761 Witness 17 T 7668-7669 7671 7703-7704 7723 7725 1762 Witness 17 T 7671 7704 7726 7729 7733 7738 7803 1763 Witness 17 T 7733 1764 P885 Witness 17 witness statement 14 August 2007 para 75 1765 P885 Witness 17 witness statement 14 August 2007 para 76 Witness 17 T 7805-7806 1766 P885 Witness 17 witness statement 14 August 2007 para 76 Witness 17 T 7654 7673 7792 7805 1767 P897 Official Note signed by Sadri Selca 26 August 1998 1768 P897 Official Note signed by Sadri Selca 26 August 1998 1769 P897 Official Note signed by Sadri Selca 26 August 1998 1770 P897 Official Note signed by Sadri Selca 26 August 1998 1771 P885 Witness 17 witness statement 14 August 2007 para 79 Witness 17 T 7805 1772 P885 Witness 17 witness statement 14 August 2007 para 80 1760 Case No IT-04-84-T 197 3 April 2008 349 Rrustem Tetaj a former JNA officer 1773 testified that he heard about the detention and killing of an Albanian woman called Sanije Balaj from the village of Streoc Strellci in Dečani Deçan municipality sometime in June 1998 1774 Tetaj was told by Metë Krasniqi and Faton Mehmetaj a KLA soldier from Vranovac Vranoc in Peć Pejë municipality that Metë Krasniqi had detained and executed the woman on the orders of Mehmetaj 1775 The latter told Tetaj that Sanije Balaj was arrested and executed because she was suspected of giving information to the Serbian MUP and the Secret Police 1776 According to the witness Ramush Haradinaj Tahir Zemaj and Gani Gjukaj all insisted that the circumstances of Sanije Balaj’s death should be investigated 1777 350 Sadri Selca a FARK intelligence officer stationed in Barane Baran in Peć Pejë municipality 1778 testified that Shaban Balaj had come to the barracks in Barane Baran and told the witness that his sister Sanije Balaj was missing 1779 Shaban Balaj told the witness that Sanije had had about DEM 2 000 with her on the day she disappeared 1780 The witness then investigated the disappearance of Sanije Balaj 1781 In a statement made to and signed by the witness on 28 August 1998 Hysen and Ahmet Ukaj stated that Metë Krasniqi took Sanije Balaj to the military police post 1782 According to the statement Cufë Krasniqi talked to Sanije Balaj who was then taken by Galan and Avni Krasniqi in a red Golf car to a place known as Isuf’s valley 1783 In the statement Hysen and Ahmet Ukaj said that they went to Isuf’s valley with Zymer Hasanaj and others where they saw the dead body and Ahmet was ordered by Galan to help Avni Krasniqi bury the body in Isuf’s valley near a spring 1784 The witness stated that Metë Krasniqi was not in the third FARK brigade but cooperated with both FARK and KLA and was a self-employed policeman 1785 1773 P265 Rrustem Tetaj witness statement 17 April 2007 para 1 Rrustem Tetaj T 3604-3605 P265 Rrustem Tetaj witness statement 17 April 2007 para 26 1775 P265 Rrustem Tetaj witness statement 17 April 2007 paras 26-27 Rrustem Tetaj T 3776 1776 P265 Rrustem Tetaj witness statement 17 April 2007 paras 26-27 1777 Rrustem Tetaj T 3775-3778 1778 Sadri Selca T 10858-10860 10864 1779 Sadri Selca T 10865-10866 10880-10882 10887 1780 Sadri Selca T 10886-10887 1781 Sadri Selca T 10865 1782 Sadri Selca T 10867 P898 Statement of Hysen and Ahmet Ukaj 28 August 1998 1783 Sadri Selca T 10867 P898 Statement of Hysen and Ahmet Ukaj 28 August 1998 1784 Sadri Selca T 10867 P898 Statement of Hysen and Ahmet Ukaj 28 August 1998 1785 Sadri Selca T 10862 10864 1774 Case No IT-04-84-T 198 3 April 2008 351 The Trial Chamber has also received forensic medical evidence with regard to Sanije Balaj remains labelled “R-1” Branimir Aleksandrić 1786 testified that body R-1 was found on 11 September 1998 in a field near the canal along the external side of the concrete wall where there were bullet markings together with eight other bodies 1787 More precisely body R-1 was found next to the wall near the bushes 1788 Body R-1 was found on the ground with a plastic sack pulled over the upper half and a jute sack pulled over the lower half of the body 1789 According to Dušan Dunjić though the top half of the body was in a rough cotton bag and the lower half was in a nylon bag 1790 ICMP DNA analysis identified the body labelled R-1 as that of Sanije Balaj 1791 An autopsy conducted on the remains on 8 December 2003 revealed several gunshot injuries one to the back of the head with an entrance hole at the back of the skull and one to the pelvis as well as possible gunshot injuries to the chest and the right arm 1792 The autopsy concluded that the cause of death was a gunshot injury to the head whereas the gunshot injury to the pelvis region may also have been fatal 1793 Dušan Dunjić 1794 surmised that the individual was not killed on the spot but that the body was moved there postmortem 1795 The body was wearing a long dress with dark-blue and white vertical stripes and white buttons 1796 An autopsy conducted on the remains in September 1998 revealed a bullet hole in the head from a hand-held fire-arm 1797 The entry wound was at the left base of the skull the exit wound on the back of the skull slightly below the 1786 P1260 Branimir Aleksandrić witness statement 26 June 2007 p 1 paras 1 4 6 9 11-12 245 Branimir Aleksandrić T 6732-6733 6737 P1113 Annex A to Branimir Aleksandrić witness statement 26 June 2007 p 1 P1114 Annex B to Branimir Aleksandrić witness statement 26 June 2007 1787 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 61-62 P414 Various photographs p 20 P416 Various photographs p 3 P418 Various photographs p 18 P645 Various photographs p 2 P649 Various photographs p 2 1788 P1260 Branimir Aleksandrić witness statement 26 June 2007 para 65 P415 Various photographs p 14 P418 Various photographs p 16 number 89 p 19 P452 Video of body recovery at canal 0 22’10” 1789 P1260 Branimir Aleksandrić witness statement 26 June 2007 para 64 Branimir Aleksandrić T 6758 P418 Various photographs p 19 number 102 P618 Dušan Dunjić witness statement 8 June 2007 para 188 P801 Photographs of R-1 1790 P618 Dušan Dunjić witness statement 8 June 2007 para 188 1791 Agreed Facts 26 November 2007 No 24 1792 Agreed Facts 26 November 2007 No 26 1793 Agreed Facts 26 November 2007 No 27 1794 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 1795 P618 Dušan Dunjić witness statement 8 June 2007 paras 188 710 Dušan Dunjić T 7306-7307 1796 P618 Dušan Dunjić witness statement 8 June 2007 para 198 Dušan Dunjić T 6847 P802 Autopsy report R-1 pp 1-2 P804 Photographs R-1 p 5 1797 P618 Dušan Dunjić witness statement 8 June 2007 para 194 Case No IT-04-84-T 199 3 April 2008 middle 1798 According to the witness it is realistic to assume that the gunshot wound to the head was caused ante-mortem and could be the cause of death 1799 352 As the Trial Chamber has received extensive evidence on the alleged killing of Sanije Balaj it will deal with the evidence in great detail On 12 August 1998 Sanije Balaj was stopped at a checkpoint near Barane Baran by a group of KLA soldiers among whom was Metë Krasniqi Sanije Balaj was then taken to a building in Barane Baran Witness 72 testified that Avni Krasniqi was among the soldiers at the checkpoint and that he produced a notebook containing Sanije Balaj’s name as a person to be interrogated However Avni Krasniqi denies having been present at the checkpoint Instead he testified that he saw two soldiers whom he could not identify take Sanije Balaj to the building in Barane Baran In contrast Cufë Krasniqi testified that Avni and Iber Krasniqi came to him and informed him that Sanije Balaj had been detained on suspicion of collaboration with the Serbs Following her detention Cufë Krasniqi briefly interrogated her on the matter of collaboration He saw that she had in her possession a notebook containing Serbian names as well as a substantial sum of money Cufë Krasniqi testified that Avni Krasniqi was initially present during the interrogation that he was then sent away but stayed in close proximity for the remainder of the interview Avni Krasniqi denied having been present at the interrogation at all but stated that he could see the interview through a window Following the brief questioning Cufë Krasniqi decided to release Sanije Balaj from KLA custody Upon her release according to Avni Krasniqi Idriz Gashi also known as Galani read out the Serb names from Sanije Balaj’s notebook Avni Krasniqi recognized some of them as Serbian policemen Idriz Gashi then ordered that she be taken to Glođane Gllogjan Thereafter Sanije Balaj entered a vehicle with a number of KLA soldiers including at least Idriz Gashi and Avni Krasniqi Other than the order issued by Idriz Gashi the Trial Chamber has heard no evidence of a KLA order for Sanije Balaj to be taken to Glođane Gllogjan nor that anybody other than Idriz Gashi and Avni Krasniqi were aware of this proposition Instead the evidence indicates that Cufë Krasniqi believed that Sanije Balaj had agreed to be given a lift home by Avni Krasniqi 1798 P618 Dušan Dunjić witness statement 8 June 2007 para 194 P802 Autopsy report R-1 pp 1-2 6 P805 Photographs of R-1 1799 P618 Dušan Dunjić witness statement 8 June 2007 para 196 Case No IT-04-84-T 200 3 April 2008 353 The soldiers travelled south from Barane Baran and stopped at a place called Lugu i Isufit Avni Krasniqi claims that Sanije Balaj requested a private conversation with Idriz Gashi there and exited the vehicle with Idriz Gashi of her own accord Avni Krasniqi remained in the car and soon after heard several gunshots However the Trial Chamber has also heard hearsay evidence that it was two men who forced a woman out of a car soon after which several shots were heard Considering the situation she was in the Trial Chamber cannot conceive of a reason for Sanije Balaj to request a private conversation as suggested by the testimony of Avni Krasniqi The Trial Chamber finds that Idriz Gashi acting alone or with Avni Krasniqi exited the car with Sanije Balaj walked some way into the woods and shot her multiple times and thereby killed her 354 Later that day 12 August 1998 KLA soldiers from the nearby village of Mali Vranovac Vranoci i Vogël encountered Idriz Gashi near Sanije Balaj’s remains at Lugu i Isufit Idriz Gashi told them that he had killed Sanije Balaj and read out the Serbian names from her notebook Ahmet Ukaj testified that he recognized some of the names as Serbian police officers Avni Krasniqi and some of the local KLA soldiers buried Sanije Balaj’s body at the site on the orders of Idriz Gashi Avni Krasniqi testified that on 15 August 1998 also on the orders of Idriz Gashi he Iber Krasniqi and Idriz Balaj returned to the site exhumed the body and wrapped it in a blanket Idriz Balaj then transported the body from Lugu i Isufit and took it to a different location In September 1998 her body was found at the Radonjić Radoniq canal The body was wrapped in a plastic and a jute bag Although Dušan Dunjić only described a gunshot injury to the head a later autopsy on the remains found several gunshot injuries The forensic medical evidence establishes a gunshot injury to the head or to the pelvis as the cause of death 355 On the basis of the evidence and although Idriz Gashi has not had an opportunity to present his version of events in the context of the case before it and in order to establish whether the perpetrators of the murder were affiliated with the KLA the Trial Chamber concludes that Idriz Gashi murdered Sanije Balaj The Trial Chamber has heard evidence that Idriz Gashi claimed to be a KLA commander The evidence also indicates that a number of individuals claimed the title of commander in the area at the time Moreover a KLA order signed by Ramush Haradinaj refers to Idriz Gashi as a “fighter” and transfers him away from the Dukagjin area in July 1998 Considering a number of inconsistencies between Avni Krasniqi’s testimony and that of several other Case No IT-04-84-T 201 3 April 2008 witnesses and noting his role in the events the Trial Chamber finds that it cannot rely fully on the testimony of Avni Krasniqi as to his own involvement in the murder 356 The Trial Chamber is convinced that the crime was closely related to the armed conflict in Kosovo Kosova and that Sanije Balaj was not taking active part in hostilities at the time the crime was committed and that the perpetrator knew or should have known that this was the case 357 Idriz Balaj is not charged with the murder under any form of liability other than as a participant in the joint criminal enterprise The Trial Chamber considers his involvement only in this context Considering the inconsistencies between Avni Krasniqi’s testimony and that of other witnesses as noted above the Trial Chamber finds that his testimony on Idriz Balaj’s involvement is insufficiently corroborated Shaban Balaj could only provide hearsay evidence with Metë Krasniqi as his source that Idriz Balaj was involved in the reburial The source of Metë Krasniqi’s information is unknown Furthermore Avni Krasniqi testified that the body was transported wrapped in a blanket whereas the forensic medical evidence indicates it was found wrapped in two bags Due to this inconsistency and considering Avni Krasniqi’s evidence the Trial Chamber cannot establish that the body was taken from Lugu i Isufit directly to the Radonjić Radoniq canal For these reasons the Trial Chamber cannot conclude whether Idriz Balaj was involved in taking the body of Sanije Balaj to the Radonjić Radoniq canal 358 The Trial Chamber has heard evidence from a number of witnesses about a KLA investigation into Sanije Balaj’s death Ramush Haradinaj Tahir Zemaj and Gani Gjukaj insisted on such an investigation Fadil Nimani and Hysen Gashi both KLA military police conducted the investigation and questioned at least Shaban Balaj Avni Krasniqi Cufë Krasniqi and Ahmet Ukaj Sadri Selca also investigated the matter and Zymer Hasanaj reported the matter to Din Krasniqi who said that those responsible should be punished In addition Ramush Haradinaj and Gani Gjukaj visited the relatives of Sanije Balaj to offer their condolences 359 The Trial Chamber has heard evidence that Sanije Balaj was suspected of collaboration with the Serbs However the Trial Chamber cannot conclude that this was the reason for the murder of Sanije Balaj as the evidence provides for reasonable alternatives All three Accused are charged with the murder of Sanije Balaj as Case No IT-04-84-T 202 3 April 2008 participants in a joint criminal enterprise The Trial Chamber will deal with this mode of liability separately in section 7 below 6 12 13 Murder of Sejd Noci 360 All three Accused are charged as participants in a joint criminal enterprise with the murder of Sejd Noci in violation of the laws or customs of war The Trial Chamber has heard relevant evidence from Avdullah Avdija Witness 64 and Witness 71 as well as forensic medical evidence 361 Avdullah Avdija a KLA member 1800 testified that one day at the beginning of July 1998 the witness was informed by Besim Alija Rama his superior in the KLA that Sejd Noci was wanted by the KLA 1801 The witness heard from other villagers that Deli Delija Sejd Noci’s cousin had promised Besim Alija Rama that he would bring Sejd Noci to the KLA 1802 According to the witness Deli Delija was not a member of the KLA 1803 The witness was told by people whose name he could not recall that the same night Besim Alija Rama armed and in KLA uniform went to the house in Košare Koshare in Đakovica Gjakovë municipality where Sejd Noci and Deli Delija were then residing and called for Deli Delija 1804 When Sejd Noci realized that it was Besim Alija Rama calling he told Deli Delija that the KLA were looking for him 1805 After a brief discussion with Deli Delija Besim Alija Rama left 1806 The following day the witness saw Deli Delija and Besim Alija Rama talking in Junik in Dečani Deçan municipality 1807 The witness spent that night in the house in Košare Koshare where both Deli Delija and Sejd Noci were staying 1808 The following day Sejd Noci asked the witness if he could help him escape to Albania as he was very afraid because the KLA were looking for him 1809 The witness said that because he was a member of the 1800 P1223 Avdullah Avdija witness statement 11 November 2007 p 2 paras 1 11 15 Avdullah Avdija T 10568-10569 1801 P1223 Avdullah Avdija witness statement 11 November 2007 para 8 Avdullah Avdija T 1058010581 1802 P1223 Avdullah Avdija witness statement 11 November 2007 para 8 1803 P1223 Avdullah Avdija witness statement 11 November 2007 para 8 1804 P1223 Avdullah Avdija witness statement 11 November 2007 para 9 1805 P1223 Avdullah Avdija witness statement 11 November 2007 para 9 1806 P1223 Avdullah Avdija witness statement 11 November 2007 para 9 1807 P1223 Avdullah Avdija witness statement 11 November 2007 para 10 1808 P1223 Avdullah Avdija witness statement 11 November 2007 para 10 1809 P1223 Avdullah Avdija witness statement 11 November 2007 para 11 Case No IT-04-84-T 203 3 April 2008 KLA he could not help Sejd Noci 1810 Sejd Noci finally resolved to travel to Junik to surrender to the KLA and discover why they were looking for him 1811 Sejd Noci Deli Delija and the witness went to Junik that day and were stopped at a position just outside the town by 3 or 4 KLA soldiers 1812 As the witness was wearing a KLA uniform he could pass the position and continue on into the town 1813 Deli Delija and Sejd Noci stayed behind at the position and this was the last time that the witness saw the two men 1814 The witness later heard from people in Tropoje in Albania that Sejd Noci was taken by the KLA 1815 362 Witness 64 a MUP officer was in charge of collecting photo and video evidence of the investigation at the Lake Radonjić Radoniq canal area between 11 September 1998 and 26 September 1998 1816 On 18 and 19 September 1998 Witness 64 videotaped the identification process that took place in Hotel Paštrik 1817 He testified that at one point Witness 71 who was visibly nervous about being videotaped by Witness 64 told Judge Radomir Gojković that he and Sejd Noci were kidnapped and taken to Ramush Haradinaj’s house 1818 According to Witness 64 who had reviewed the videotape Witness 71 said that he was later released but Sejd Noci was killed 1819 When the relevant portion of Witness 64’s videotape was played before the Trial Chamber the audio quality of the recording was unclear and the video did not corroborate Witness 64’s account of the conversation 1820 Witness 71 testified that he had been taken to the KLA headquarters in Glođane Glodjane by KLA soldiers that he was asked about a young man and then released 1821 1810 P1223 Avdullah Avdija witness statement 11 November 2007 para 11 P1223 Avdullah Avdija witness statement 11 November 2007 paras 11-12 1812 P1223 Avdullah Avdija witness statement 11 November 2007 para 13 Avdullah Avdija T 10575-10577 1813 P1223 Avdullah Avdija witness statement 11 November 2007 para 13 1814 P1223 Avdullah Avdija witness statement 11 November 2007 para 13 Avdullah Avdija T 10578 10580-10581 P1224 Map marked by Avdullah Avdija 1815 P1223 Avdullah Avdija witness statement 11 November 2007 para 14 1816 P907 Witness 64 witness statement 23 24 and 27 August 2007 paras 6 9-13 1817 P907 Witness 64 witness statement 23 24 and 27 August 2007 para 106-109 1818 P907 Witness 64 witness statement 23 24 and 27 August 2007 para 108 1819 P907 Witness 64 witness statement 23 24 and 27 August 2007 para 108 1820 Witness 71 T 10034-10037 D66 Video of Radonjić Radoniq canal and Hotel Paštrik 12-19 September 1998 1 48’00” – 1 49’50” P1024 Enhanced copy of a part of D66 1821 Witness 71 T 10022-10028 10046-10049 1811 Case No IT-04-84-T 204 3 April 2008 363 The Trial Chamber has also received forensic medical evidence with regard to Sejd Noci remains labelled “R-21” “R-24” and “R-27B” Branimir Aleksandrić 1822 testified that remains R-21 and R-24 were found about 650 metres downstream from the Lake Radonjić Radoniq canal close together within about 4 metres on the dry part of the ravine immediately above the water-line 1823 On 12 September 1998 about 60 metres downstream from R-21 and R-24 a black jacket two shin bones a left shoulder blade and a fragment of spine along with some rib bones were found and marked as R27 1824 ICMP DNA results concluded that the remains labelled R-21 R-24 and R-27B are those of Sejd Noci 1825 Autopsies conducted on the remains in December 2003 concluded that fractures to the left shoulder blade and the left arm suggested gunshot wounds 1826 The cause of death was not determined 1827 Dušan Dunjić 1828 testified that the autopsy conducted in September 1998 revealed fractures on the skull the left shoulder the left arm and the right leg all of which could have been caused by a fall into the canal 1829 364 As referred to above the Trial Chamber has heard evidence from Avdullah Avdija that he learned in the beginning of July 1998 that Sejd Noci was wanted by the KLA Around that time he was last seen at a position with 3 or 4 KLA soldiers just outside Junik where he had gone to surrender to the KLA The Trial Chamber is not convinced by the testimony of Witness 64 that Witness 71 and Sejd Noci were taken together since the recording that Witness 64 relies upon in his statement does not corroborate his evidence on this matter Furthermore in his testimony before the Trial Chamber Witness 71 did not mention that Sejd Noci was taken to Glođane Glodjane 1822 P1260 Branimir Aleksandrić witness statement 26 June 2007 p 1 paras 1 4 6 9 11-12 245 Branimir Aleksandrić T 6732-6733 6737 P1113 Annex A to Branimir Aleksandrić witness statement 26 June 2007 p 1 P1114 Annex B to Branimir Aleksandrić witness statement 26 June 2007 1823 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 164 171-172 175 177-178 Branimir Aleksandrić T 6807-6808 6810 9585 P452 Video of body recovery at canal 1 57’46”1 57’56” 1 59’24”- 1 59’33” P1115 Annex C to Branimir Aleksandrić witness statement 26 June 2007 reports dated 15 and 16 September 1998 pp 4 10 1824 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 128 164 171 197 200 201204 Branimir Aleksandrić T 9602-9603 9613-9614 P449 Various photographs p 52 lower photograph p 53 P747 Autopsy report R-27 pp 1-2 P749 Autopsy photographs R-27 pp 2-3 P1115 Annex C to Branimir Aleksandrić witness statement 26 June 2007 reports dated 15 and 16 September 1998 pp 5 11 1825 Agreed Facts 26 November 2007 No 95 1826 Agreed Facts 26 November 2007 No 97 1827 Agreed Facts 26 November 2007 No 97 1828 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 1829 P618 Dušan Dunjić witness statement 8 June 2007 para 464 P727 Autopsy report R-21 p 2 P739 Autopsy report R-24 p 2 Case No IT-04-84-T 205 3 April 2008 with him Sejd Noci’s remains were found in the ravine downstream from the Radonjić Radoniq canal The forensic medical evidence does not establish a cause of death Whereas the ICMP evidence suggests that the fractures found on Sejd Noci’s remains were caused by gunshots Dušan Dunjić allows for the possibility that those fractures may have occurred during the fall of the body into the canal The Trial Chamber finds that the evidence before it does not allow for a conclusion beyond a reasonable doubt that Sejd Noci was murdered For this reason the Trial Chamber concludes that all three Accused should be acquitted of this charge 6 12 14 Murder of five unidentified people 365 All three Accused are charged as participants in a joint criminal enterprise with the murder of five people in violation of the laws or customs of war The Trial Chamber has heard forensic medical evidence with regard to these five people remains labelled “R-10 1” “R-29” “R-30” “R-32” and “R-18 1” and “R-33” 366 Branimir Aleksandrić testified that remains R-10 1 R-29 R-30 R-32 and R- 18 1 and R-33 were found on 15 September 1998 in various places at the Radonjić Radoniq canal and in the ravine downstream from the canal 1830 ICMP DNA analysis identified the remains labelled R-10 1 as those of a member of the Misin Berisha family 1831 An autopsy conducted on the remains on 8 December 2003 revealed completely skeletonized remains of an individual of between 10 and 17 years of age 1832 The autopsy found multiple fractures to the right arm but did not determine a cause of death 1833 Dušan Dunjić 1834 testified that remains R-10 1 had been placed in the same body bag as body R-10 but did not belong to body R-10 1835 An autopsy conducted on 1830 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 206-207 215-216 219-221 224 229-230 232 235-236 240 242 267 Branimir Aleksandrić T 9583-9584 P449 Various photographs pp 55 57 lower photograph 61 P459 Various photographs p 59 upper photograph 61 P756 Autopsy photographs R-29 pp 2-3 P757 Autopsy report R-30 p 1 P759 Autopsy photographs R-30 pp 2-3 P769 Autopsy photographs R-33 p 2 P1115 Annex C to Branimir Aleksandrić witness statement 26 June 2007 reports dated 15 and 16 September 1998 p 12 P1122 Photograph of R-29 P1123 Photograph of R-29 P1127 Photograph of R-30 P1131 Photograph of skull R-33 1831 Agreed Facts 26 November 2007 No 60 1832 Agreed Facts 26 November 2007 Nos 61-62 1833 Agreed Facts 26 November 2007 No 62 1834 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 1835 P618 Dušan Dunjić witness statement 8 June 2007 para 311 P677 Autopsy report R-10 1 p 1 Case No IT-04-84-T 206 3 April 2008 the remains in September 1998 found that the right lower arm had been fractured in a way that could not have been caused by a fall 1836 367 On 5 December 2003 an autopsy on the remains labelled R-29 revealed that the body was of a male between the ages 33 and 45 with an injury to the forehead consistent with a blunt force trauma 1837 The cause of death was determined to be a gunshot to the chest and blunt force trauma to the head 1838 On 8 December 2003 an autopsy on the remains labelled R-30 found only parts of the legs with no evident injuries 1839 The cause of death was not ascertained 1840 368 On 8 December 2003 an autopsy on the body labelled R-32 and R-18 1 found that the body was that of a male between 17 and 22 years old 1841 The autopsy established multiple fractures to the skull consistent with a gunshot entry wound 1842 Fractures to the left shoulder blade and hip consistent with gunshot wounds were also observed 1843 The cause of death was determined to be gunshot wounds to the chest head and pelvis 1844 Dušan Dunjić 1845 testified that an autopsy conducted on the remains in September 1998 revealed bullet entry wounds on the right shoulder and right thigh bone which if inflicted ante-mortem suggest death caused by gunshots to the chest and pelvis 1846 It also revealed fractures of the skull torso and extremities probably inflicted by blunt force 1847 On 5 December 2003 an autopsy on a completely skeletonized skull labelled R-33 revealed that the skull was that of a male under the age of 30 1848 There were fractures on the frontal parts of the skull 1849 The cause of death was not determined 1850 369 Based on the evidence the Trial Chamber concludes that in September 1998 sets of remains belonging to five people were found at the Radonjić Radoniq canal and in 1836 P618 Dušan Dunjić witness statement 8 June 2007 para 313 P677 Autopsy report R-10 1 p 2 Agreed Facts 26 November 2007 No 128 1838 Agreed Facts 26 November 2007 No 129 1839 Agreed Facts 26 November 2007 No 131 1840 Agreed Facts 26 November 2007 No 131 1841 Agreed Facts 26 November 2007 No 133 1842 Agreed Facts 26 November 2007 No 133 1843 Agreed Facts 26 November 2007 No 133 1844 Agreed Facts 26 November 2007 No 134 1845 P618 Dušan Dunjić witness statement 8 June 2007 paras 2-3 23 40 151 P620 CV of Dušan Dunjić p 2 1846 P618 Dušan Dunjić witness statement 8 June 2007 para 580 P764 Autopsy report R-32 p 4 1847 P618 Dušan Dunjić witness statement 8 June 2007 para 581 P718 Autopsy report R-18 1 p 1 P764 Autopsy report R-32 pp 2-4 1848 Agreed Facts 26 November 2007 No 136 1849 Agreed Facts 26 November 2007 No 136 1837 Case No IT-04-84-T 207 3 April 2008 the ravine downstream from the canal These unidentified sets of remains were labelled R-10 1 R-29 R-30 R-32 together with R-18 1 and R-33 There is no evidence before the Trial Chamber relating to last sightings or further circumstances of events that led to the death of the five unidentified persons Furthermore the Trial Chamber has received no evidence about who the persons were their ethnicity affiliation with a political group if any or their civilian or military status The only exception is for the remains labelled R-10 1 which belonged to a member of the Misin Berisha family the Trial Chamber dealt with the alleged murder of Misin Berisha in section 6 11 above The forensic medical evidence as set out above relating to R-29 and R-32 together with R18 1 strongly suggests that these persons were murdered In section 6 1 above the Trial Chamber has explained that the fact that a body was found in the Radonjić Radoniq canal area is not in itself conclusive as to who committed the killing or with which group if any the perpetrator was affiliated The fractures of the remains R-10 1 and R33 cannot shed any light on how they were inflicted other than that the fractures of R10 1 could not have been caused by a fall Therefore these injuries cannot support a finding of murder Remains R-30 which merely consist of leg bones did not contain any injuries which could support a conclusion of murder 370 The Trial Chamber finds that the evidence before it does not allow for a conclusion beyond a reasonable doubt that those individuals whose remains had been labelled R-10 1 R-30 and R-33 were murdered Even assuming that R-29 and R-32 together with R-18 1 were murdered the Trial Chamber finds that the evidence before it does not allow for a conclusion beyond a reasonable doubt as to who committed these murders or with which group if any the perpetrator was affiliated For these reasons the Trial Chamber finds that all three Accused should be acquitted of this charge 6 13 Cruel treatment torture and murder of Ivan Zarić and others Count 24 371 All three Accused are charged as participants in a joint criminal enterprise with cruel treatment torture and murder of Ivan Zarić and others in violation of the laws or customs of war In the alternative Ramush Haradinaj and Idriz Balaj are charged as having committed or aided and abetted the commission of the crimes Lahi Brahimaj is alternatively charged for having ordered instigated or aided and abetted the 1850 Agreed Facts 26 November 2007 No 136 Case No IT-04-84-T 208 3 April 2008 commission of the crimes The Trial Chamber has heard relevant evidence from Witness 3 Witness 66 and Witness 31 372 Witness 3 testified that there was a functioning mill in Grabanica Grabanicë village in Klina Klinë municipality at least until 19 May 1998 1851 A few days before 19 May 1998 he was in the village when he saw a Serbian and two Roma youths on a horse-drawn cart loaded with grain 1852 Witness 3 asked them where they were going and they answered that they were going to Grabanica Grabanicë 1853 According to Witness 3 they never left the village 1854 373 Witness 66 testified that he last saw Burim Bejta Agron Berisha both Roma and Ivan Zarić a Serb on 19 May 1998 at 9 30 a m 1855 These three persons were leaving Dolac Dollc in Klina Klinë municipality on Burim Bejta’s horse-cart 1856 They were transporting corn to the mill in Grabanica Grabanicë in Klina Klinë municipality to have it ground there 1857 The witness did not remember the exact date himself but learned this from his sister 1858 When the three persons did not return from their trip to the mill two relatives of the witness went to Grabanica Grabanicë around 2 00 or 3 00 p m the same day to inquire after them 1859 The relatives told the witness after their return that they had been stopped in Grabanica Grabanicë by three or four Albanians who were armed with semi-automatic weapons who had asked them for their IDs and who had registered their names 1860 As to the enquiry of the relatives the Albanians said that they had never seen those for whom the relatives were looking 1861 374 On the following day 20 May 1998 some of the witness’s relatives left their village around noon for Grabanica Grabanicë to again look for the missing persons 1862 There they encountered 40 to 50 people about half of whom were in uniform and three or four of whom threatened the witness’s relatives at gunpoint saying that the missing persons had never been to their village and urging the relatives to go away 1863 The 1851 Witness 3 T 7898 7905 7912-7914 7916 7985 Witness 3 T 7915 8029-8030 1853 Witness 3 T 7916 8030-8031 1854 Witness 3 T 7915-7916 1855 Witness 66 T 8413-8415 8417-8419 8422-8423 8431 1856 Witness 66 T 8422-8423 8431 1857 Witness 66 T 8419 8422-8423 8431 1858 Witness 66 T 8423 1859 Witness 66 T 8424 8427 1860 Witness 66 T 8424-8425 8427-8428 1861 Witness 66 T 8424-8425 1862 Witness 66 T 8426 8428 1863 Witness 66 T 8426-8429 1852 Case No IT-04-84-T 209 3 April 2008 witness learned about these events from his relatives when they returned 1864 Three or four days after Burim Bejta Agron Berisha and Ivan Zarić went missing the witness saw the horse-cart of Burim Bejta when it was driven past the witness’s house by three Albanian boys from Zajmovo Zajm village in Klina Klinë municipality 1865 The witness and his mother recognized the horse and the witness also recognized a white sack of corn 1866 The police to whom the witness had handed over the children and explained the situation of the missing persons later told the witness that the children were from Prlina Përlinë in Klina Klinë municipality and had found the cart in front of their house 1867 375 Witness 31 was well acquainted with Burim Bejta Ivan Zarić and Agron Berisha 1868 The witness testified that she last saw these three young men around 10 00 one morning 1869 The witness could not remember the month or year in which this occurred but thought it was in 1998 or 1999 1870 The three were riding together in a horse-drawn cart 1871 They were taking a sack of corn to a mill in Grabanica Grabanicë in Klina Klinë municipality 1872 In the evening of the same day having waited for Bejta and his two companions to return Witness 31 and Burim Bejta’s mother set out to find them 1873 In Grabanica Grabanicë the witness encountered a large number of armed men “perhaps 100” wearing KLA uniforms 1874 At the mill a man who answered the bell told Bejta’s mother that he had not seen Burim Bejta that day 1875 376 Based on the evidence the Trial Chamber concludes that on or just before 19 May 1998 Ivan Zarić Agron Berisha and Burim Bejta a Serbian and two Romas left Dolac Dollc on a horse-drawn cart heading for Grabanica Grabanicë They were last seen in Grabanica Grabanicë Within days of their disappearance relatives recovered the horse and cart in the possession of some children who had found the cart in Prlina Përlinë Their remains have not been found Considering the fact that the men have never been seen again the Trial Chamber accepts that they are in all likelihood 1864 Witness 66 T 8428-8429 Witness 66 T 8429-8430 See also Witness 31 T 9520-9521 1866 Witness 66 T 8429-8430 1867 Witness 66 T 8429-8431 1868 Witness 31 T 9513-9514 1869 Witness 31 T 9515-9517 1870 Witness 31 T 9515 1871 Witness 31 T 9516-9517 9521 1872 Witness 31 T 9516 1873 Witness 31 T 9517 1874 Witness 31 T 9518-9519 1865 Case No IT-04-84-T 210 3 April 2008 dead The Trial Chamber has not received any evidence about the young men being in KLA custody or concerning the circumstances under which they died or concerning perpetrators of the killing The Trial Chamber has heard evidence that Grabanica Grabanicë was under KLA control when the three young men entered the village though it is not able to conclude whether or not they left the village again and if so how and when There was ongoing military activity in the area during the time period when Ivan Zarić Agron Berisha and Burim Bejta allegedly disappeared The Chamber has heard evidence of a KLA attack on Dolac Dollc in the evening of 12 May 1998 and how Serbian forces began to shell Grabanica Grabanicë on 19 May 1998 and eventually entered the village on 21 May 1998 1876 Therefore in view of the intense combat activities in the area and the lack of bodily remains and thus a cause of death the Trial Chamber cannot reasonably exclude the possibility that either the young men were caught up in combat activities or that other forces or persons unaffiliated with the KLA were responsible for their disappearance The Trial Chamber has heard no evidence about the alleged acts of the Accused in relation to this event as alternatively charged For these reasons the Trial Chamber concludes that all three Accused should be acquitted of this count 6 14 Cruel treatment and murder of Ukë Rexhepaj and Nesret Alijaj Count 26 377 All three Accused are charged as participants in a joint criminal enterprise with the cruel treatment and murder of Ukë Rexhepaj and Nesret Alijah in violation of the laws or customs of war In the alternative Lahi Brahimaj is charged with instigating or aiding and abetting the commission of the crimes The Trial Chamber has heard relevant evidence from Witness 54 378 Witness 54 testified that on 20 May a date that his mother later told the witness Ukë Rexhepaj an Ashkali from Klina Klinë municipality and Nesret Alijaj fetched him from Iber Januzaj’s house in Grabanica Grabanicë in Klina Klinë municipality 1877 Together they went to Dolovo Dollove in Klina Klinë municipality to feed their livestock 1878 Halfway to their destination they were stopped by two men who 1875 Witness 31 T 9520 Cufë Krasniqi T 5815 P355 Map on which the witness marked the so-called free-area in blue P1166 Combat report dated 13 May 1998 p 1 1877 Witness 54 T 8271 8273-8275 8277-8278 1878 Witness 54 T 8275 8277 1876 Case No IT-04-84-T 211 3 April 2008 threatened to shoot them 1879 The men were wearing dark green camouflage uniforms and carrying light machine-guns 1880 They spoke Albanian 1881 The men searched them and took away their bicycles and all items from their pockets 1882 The men then blindfolded and tied the hands of Ukë Rexhepaj and Nesret Alijaj 1883 They forced both of them into a car and said they would bring them back 1884 They waved and shouted to a man named Ismet who was in the woods to come and get Witness 54 1885 Ismet and Witness 54 walked for five minutes before arriving at a house 1886 Then without seeking any directions from the witness Ismet took him back to Iber Januzaj’s house 1887 The witness never saw Ukë Rexhepaj and Nesret Alijaj again 1888 379 The Trial Chamber concludes that on or about 20 May 1998 Ukë Rexhepaj and Nesret Alijah were taken by two armed and uniformed men who spoke Albanian somewhere between Grabanica Grabanicë and Dolovo Dollove Ukë Rexhepaj and Nesret Alijah were never seen after this event nor have their remains been recovered The Trial Chamber finds that the evidence before it is insufficient to conclude that the persons who took Ukë Rexhepaj and Nesret Alijah were members of or affiliated with the KLA Considering the fact that the two men have not been seen since that day the Trial Chamber accepts that Ukë Rexhepaj and Nesret Alijah are in all likelihood dead As their remains have not been recovered expert evidence on their cause of death is absent The Trial Chamber finds that the evidence does not allow for a conclusion beyond a reasonable doubt that Ukë Rexhepaj and Nesret Alijah have been murdered The Trial Chamber has heard no evidence about the alleged ill-treatment and no evidence about the alleged acts of Lahi Brahimaj in relation to this event as alternatively charged For these reasons the Trial Chamber concludes that all three Accused should be acquitted of this count 1879 Witness 54 T 8275 8277 Witness 54 T 8276 1881 Witness 54 T 8276 1882 Witness 54 T 8275 1883 Witness 54 T 8276 1884 Witness 54 T 8275-8276 1885 Witness 54 T 8275 8277-8278 1886 Witness 54 T 8275 8280 1887 Witness 54 T 8275 8280-8281 1888 Witness 54 T 8277 1880 Case No IT-04-84-T 212 3 April 2008 6 15 Cruel treatment and torture of Witness 6 Count 28 380 All three Accused are charged as participants in a joint criminal enterprise with the cruel treatment and torture of Witness 6 in violation of the laws or customs of war In the alternative Lahi Brahimaj is charged with the commission of or aiding and abetting the commission of the crimes The Trial Chamber has heard relevant evidence from Witness 6 as well as a number of other witnesses 381 Witness 6 a Catholic Albanian 1889 testified that around noon on 13 June 1998 he and his family were driving north on the road between Đakovica Gjakovë and Klina Klinë 1890 At the entrance to Dolovo Dollove in Klina Klinë municipality they were stopped by the VJ who told them not to continue 1891 They turned back towards Đakovica Gjakovë and at approximately 1 p m on the main road near Volujak Volljakë in Klina Klinë municipality they were stopped by more than ten KLA soldiers 1892 They were all armed some of them wore civilian clothes and others camouflage uniforms though none of them had insignia 1893 The men checked Witness 6’s documents and searched him and the car finding a police-issued pistol and a photo of Witness 6 together with a retired Albanian police officer in uniform 1894 They seized Witness 6’s pistol and documents including his gun licence 1895 Witness 6 and his family waited in their car away from the road for about two hours 1896 Then the witness heard a car coming from the main road as well as some shooting 1897 The soldiers brought a light blue Opel Kadett with Đakovica Gjakovë licence plates close to where Witness 6 was parked 1898 One of the soldiers asked Witness 6 whether he recognized the car and he answered that he did not 1899 About twenty minutes later at approximately 3 or 4 p m two soldiers drove off in Witness 6’s car and the Opel Kadett with Witness 6 and his family split up between the two cars 1900 Witness 6 was in the Opel Kadett where he found a photo album in which he recognized “Nenad” a 1889 Witness 6 T 5166-5167 5238-5239 5263-5264 5305 5399 Witness 6 T 5168-5171 5293 5386 P331 Map on which the witness marked his journey 1891 Witness 6 T 5171 5173 5179 5188-5190 5352 P331 Map on which the witness marked his journey 1892 Witness 6 T 5171 5173-5174 5190-5191 5193 5293-5294 P331 Map on which the witness marked his journey 1893 Witness 6 T 5193-5194 1894 Witness 6 T 5194 5352-5355 5399 1895 Witness 6 T 5194 5352-5353 1896 Witness 6 T 5194-5195 1897 Witness 6 T 5195 1898 Witness 6 T 5195-5196 1899 Witness 6 T 5195 1890 Case No IT-04-84-T 213 3 April 2008 Serbian or Montenegrin policeman who worked in Đakovica Gjakovë 1901 At one point the soldiers told the witness’s wife and children to get out which they did 1902 The cars arrived in Jablanica Jabllanicë in Đakovica Gjakovë municipality 1903 382 Before 6 p m on 13 June 1998 while it was still daylight the soldiers took Witness 6 through a gate into a yard and to a room immediately to the left of the entrance to the yard 1904 In this room soldiers took turns kicking and beating him with a baseball bat and other items injuring him and causing him to loose consciousness 1905 One of the participants in this beating was Nazmi Brahimaj 1906 Witness 6 testified that they asked him questions but that nobody explained why he was beaten 1907 Witness 6 did not remember seeing Lahi Brahimaj that evening 1908 Certain persons whom Witness 6 did not identify tied Nenad whose photo Witness 6 had seen in the Opel Kadett and him up and left them in the room overnight 1909 In the afternoon of the next day 14 June 1998 while it was still daylight persons whom Witness 6 did not identify moved him to a one-storey red-brick house with four rooms in the middle of a yard 1910 Witness 6 remained in a room of that house for the rest of his stay in Jablanica Jabllanicë 1911 The room had a window which was boarded up with wooden planks that let through very little light 1912 There was no light-bulb in the room 1913 For the first four weeks he was locked up in that room and saw soldiers only when they came to beat him 1914 Lahi and Nazmi Brahimaj would come usually staying for about five to ten minutes and beat Witness 6 with their fists and baseball bats 1915 Also Nazmi and Lahi Brahimaj were sometimes present while other soldiers beat Witness 6 1916 On occasion Lahi Nazmi and Hamza Brahimaj came to the room where he was 1900 Witness 6 T 5196 5203-5204 5316 Witness 6 T 5196-5197 5354 1902 Witness 6 T 5200 1903 Witness 6 T 5197-5201 5203 P331 Map on which the witness marked his journey 1904 Witness 6 T 5204-5205 5213-5215 5316 5322 P333 Photo of Jablanica Jabllanicë compound on which the witness marked where he and Nenad were beaten 1905 Witness 6 T 5207-5211 5214-5215 5324 5350-5351 1906 Witness 6 T 5209 1907 Witness 6 T 5210 5400 1908 Witness 6 T 5372 1909 Witness 6 T 5210 5213 5215-5216 5304 5316 P333 Photo of Jablanica Jabllanicë compound on which the witness marked where he and Nenad were beaten 1910 Witness 6 T 5204-5205 5216 5316 5324 P332 Photo of Jablanica Jabllanicë compound 1911 Witness 6 T 5205 5213 5216 5316-5317 5325 5347 1912 Witness 6 T 5216 5325-5326 1913 Witness 6 T 5401 1914 Witness 6 T 5217-5218 5220 1915 Witness 6 T 5208-5209 5219-5220 5372-5373 1916 Witness 6 T 5220-5221 5373 1901 Case No IT-04-84-T 214 3 April 2008 kept but they did not beat him 1917 KLA soldiers including Lahi and Nazmi Brahimaj accused Witness 6 of associating with or spying for the Serbs 1918 Witness 6 was swollen from the beatings he received 1919 He was sick and often unconscious 1920 Gani Brahimaj who worked there as a cook brought him a piece of bread marmalade and some water every day 1921 383 For the first four weeks of his detention Witness 6 did not know the names of the people detaining him 1922 He learned the names of Lahi Nazmi and Hamza Brahimaj when they addressed each other in the yard 1923 He saw Nazmi Brahimaj there almost every day 1924 Gani Brahimaj told Nazmi Brahimaj’s name to Witness 6 1925 He heard others address Nazmi as “deputy commander” 1926 Witness 6 also saw Hamza almost every day at Jablanica Jabllanicë 1927 He heard others address him by that name 1928 Much later he learned that Hamza’s surname was Brahimaj 1929 Witness 6 also saw Lahi Brahimaj at Jablanica Jabllanicë and heard others address him as “Lahi” or “Maxhup” 1930 Gani Brahimaj told Witness 6 that Lahi Brahimaj’s nickname was “Maxhup” 1931 Witness 6 testified that during his time at Jablanica Jabllanicë two days would not go by without him seeing Lahi Brahimaj 1932 Lahi Brahimaj wore either a camouflage or a black uniform 1933 Witness 6 testified that Lahi Brahimaj was a member of the KLA 1934 During the last week and a half or so of his stay at Jablanica Jabllanicë Witness 6 spent his nights in the same room but could move around in the house and the yard during daytime 1935 He was no longer beaten 1936 He ate food including bread and beans 1937 He washed dishes in an open meadow 1938 1917 Witness 6 T 5220 Witness 6 T 5351-5352 5398-5400 1919 Witness 6 T 5220 1920 Witness 6 T 5326 1921 Witness 6 T 5218-5219 5240 5244 5326-5329 5341 1922 Witness 6 T 5208 5218 5232 5295-5297 5347 1923 Witness 6 T 5208-5209 5245 1924 Witness 6 T 5219 1925 Witness 6 T 5378 1926 Witness 6 T 5245 1927 Witness 6 T 5219 1928 Witness 6 T 5246 1929 Witness 6 T 5209 1930 Witness 6 T 5245 1931 Witness 6 T 5218-5219 1932 Witness 6 T 5218 5372 1933 Witness 6 T 5245 1934 Witness 6 T 5246 1935 Witness 6 T 5217 5231-5232 5241-5243 5332-5334 5386 5391 1936 Witness 6 T 5243 5259 1937 Witness 6 T 5329 1918 Case No IT-04-84-T 215 3 April 2008 Witness 6 testified that he felt he had the opportunity to escape but he “didn’t want to take that chance” 1939 Witness 6 was visited by his wife father and one of his sons 1940 Someone whom Witness 6 did not identify gave them a paper indicating that he would be released after one week 1941 Witness 6 saw as many as 100 to 200 soldiers at a time at Jablanica Jabllanicë on their way to get weapons from Albania 1942 Most of them did not wear a uniform or were only partially uniformed 1943 Witness 6 also saw civilians other than detainees at Jablanica Jabllanicë 1944 384 On 25 July 1998 Witness 6 received from Nazmi Brahimaj two decisions bearing his signature as deputy commander of the KLA in Jablanica Jabllanicë in the Dukagjin sub-zone one releasing Witness 6 and the other confiscating his car and gun 1945 The release decision stated that Witness 6’s release was conditional and “ if he repeats his mistakes the witness will be prosecuted” 1946 Witness 6 was released the same day 1947 Witness 6 asked for the return of his car gun driver’s licence ID and wallet but did not receive them 1948 Witness 6 was never told why he was detained 1949 After his release his father told him that the people of their village had come to plead for his release 1950 Witness 6 testified that he left the place with bruises on his back a fracture on his lower left forearm near the wrist and an open wound on the back of his right arm or shoulder 1951 Witness 6 complained of lasting pains all over his body 1952 He also testified that he had become unable to perform physical work or lift weights above five kilograms 1953 He testified that his health problems were caused by the beatings he received at Jablanica Jabllanicë and that prior to his stay there he had been in good health 1954 On 30 July 1998 Witness 6 went to see a doctor in 1938 Witness 6 T 5244 5333-5334 5341 5361 5395 Witness 6 T 5243 5349 1940 Witness 6 T 5252 1941 Witness 6 T 5252 1942 Witness 6 T 5246 5360-5361 1943 Witness 6 T 5246 1944 Witness 6 T 5246 1945 Witness 6 T 5253-5256 5379 P335 Decisions signed by Nazmi Brahimaj 1946 Witness 6 T 5255-5256 P335 Decisions signed by Nazmi Brahimaj 1947 Witness 6 T 5206 5252-5255 5297-5298 1948 Witness 6 T 5254 5256 5304 5342 5361 5378-5380 5398 5403 1949 Witness 6 T 5252-5253 1950 Witness 6 T 5252 1951 Witness 6 T 5210 5243 5259 5265-5268 5373-5375 1952 Witness 6 T 5268 5373-5374 5401 1953 Witness 6 T 5243 5268 1954 Witness 6 T 5259 5401 1939 Case No IT-04-84-T 216 3 April 2008 Đakovica Gjakovë who X-rayed him and prescribed some medicine 1955 The X-ray revealed a fractured left ulna 1956 The doctor did not treat his left forearm 1957 Witness 6 also went to see another doctor who prescribed him painkillers 1958 At the time of his testimony Witness 6 still took medication for the injuries he received during his detention 1959 385 Witness 6 met Nazmi Brahimaj again about a year after his incarceration and recognized him 1960 Also on 24 February 2004 Witness 6 recognized him on a photo spread 1961 During the same photo spread session he recognized Lahi Brahimaj 1962 386 Pekka Haverinen a Finnish police officer who worked as an ICTY investigator from June 2002 to March 2005 1963 testified that he showed seven photo boards to Witness 6 during an interview on 25 February 2004 1964 Witness 6 recognized Ramush Haradinaj and Lahi Brahimaj on the photo boards 1965 Witness 6 told Haverinen that he could recognize Haradinaj because he knew his face from newspapers and television 1966 He did not know Ramush Haradinaj from the time of the war or remember seeing him in the KLA prison in Jablanica Jabllanicë 1967 Witness 6 signed the photo boards but there are no markings indicating the relevant numbers 1968 387 Witness 23 testified that on 12 June 1998 around 1 00 p m she and Witness 6 and the rest of their family travelled from Bardosan Bardhasa in Đakovica Gjakovë municipality to Nepolje Nepolë in Peć Pejë municipality 1969 While they were driving on the Peć Pejë-Priština Prishtinë road they were stopped by Serbian police at the 1955 Witness 6 T 5259 5261-5262 5298-5299 5312-5313 P336 Medical report of examination of Witness 6 1956 P336 Medical report of examination of Witness 6 1957 Witness 6 T 5265-5268 1958 Witness 6 T 5267-5268 1959 Witness 6 T 5269 5401 1960 Witness 6 T 5269-5271 1961 P375 P376 Pekka Haverinen witness statement 26 June 2007 paras 10 14 annex 4 See also Witness 6 T 5371-5372 1962 Witness 6 T 5371-5372 P375 P376 Pekka Haverinen witness statement 26 June 2007 paras 10 15 annex 5 1963 P375 P376 Pekka Haverinen witness statement 26 June 2007 para 1 Pekka Haverinen T 62996300 1964 P375 Pekka Haverinen witness statement 26 June 2007 paras 8 10 Pekka Haverinen T 63396340 1965 P375 Pekka Haverinen witness statement 26 June 2007 paras 11 15 Annex 2 Annex 5 1966 P375 Pekka Haverinen witness statement 26 June 2007 para 12 1967 P375 Pekka Haverinen witness statement 26 June 2007 para 12 1968 P375 Pekka Haverinen witness statement 26 June 2007 paras 12 15 Pekka Haverinen T 63486350 1969 P1221 Witness 23 witness statement 18 January 2003 p 2 Case No IT-04-84-T 217 3 April 2008 checkpoint on the bridge in Dolovo Dollove in Klina Klinë municipality 1970 The police told them that it was dangerous to travel to Nepolje Nepolë because of the KLA 1971 The family decided to turn around but on the way back they were stopped by approximately 10-15 armed men near a place called “Black Stone” on the Klina KlinëĐakovica Gjakovë road 1972 Some men were wearing camouflage uniforms 1973 The men questioned the family for approximately two hours 1974 Witness 6 was questioned about a gun he carried and about a photograph depicting him and an Albanian policeman which he had in the car 1975 Witness 6 had to give the men his gun 1976 After about two hours the witness heard a car coming from the direction of Đakovica Gjakovë followed by the sound of shooting 1977 The witness did not see what happened nor could she remember any details about the car 1978 The witness was ordered to board this other car together with Witness 6 and one other family member 1979 The rest of the family boarded the family’s own car 1980 Each car was driven by a KLA soldier 1981 They all drove to a location in Nepolje Nepolë where Witness 23 and the rest of the family except Witness 6 were let off the KLA soldiers left with the two cars and Witness 6 1982 After the incident the witness told her brother and a cousin that Witness 6 had been taken by the KLA 1983 They started making inquiries learning that Witness 6 was detained in the village of Jablanica Jabllanicë 1984 The witness remained in Nepolje Nepolë for three or four days and saw someone driving her car in the village every day 1985 After five weeks Witness 7 received a letter from the KLA stating that he the witness and some other family members could visit Witness 6 in Jablanica Jabllanicë which they did 1986 Witness 23 observed that Witness 6 had lost a lot of weight and looked like he was in bad shape 1987 The witness saw 1970 P1221 Witness 23 witness statement 18 January 2003 p 2 Witness 23 T 10539 P1221 Witness 23 witness statement 18 January 2003 p 2 1972 P1221 Witness 23 witness statement 18 January 2003 pp 2-3 Witness 23 T 10528 1973 P1221 Witness 23 witness statement 18 January 2003 p 3 Witness 23 T 10539-10540 1974 P1221 Witness 23 witness statement 18 January 2003 p 3 Witness 23 T 10528 1975 Witness 23 T 10540 1976 Witness 23 T 10540-10541 1977 P1221 Witness 23 witness statement 18 January 2003 p 3 Witness 23 T 10529-10531 1978 P1221 Witness 23 witness statement 18 January 2003 p 3 Witness 23 T 10529 1979 P1221 Witness 23 witness statement 18 January 2003 p 3 Witness 23 T 10529-10534 1980 P1221 Witness 23 witness statement 18 January 2003 p 3 Witness 23 T 10529-10534 1981 P1221 Witness 23 witness statement 18 January 2003 p 3 Witness 23 T 10532-10537 1982 P1221 Witness 23 witness statement 18 January 2003 p 3 Witness 23 T 10532-10533 1983 P1221 Witness 23 witness statement 18 January 2003 p 3 1984 P1221 Witness 23 witness statement 18 January 2003 pp 3-4 1985 Witness 23 T 10535 10547-10548 1986 P1221 Witness 23 witness statement 18 January 2003 p 4 1987 P1221 Witness 23 witness statement 18 January 2003 p 4 Witness 23 T 10550-10551 1971 Case No IT-04-84-T 218 3 April 2008 Witness 6 for about an hour in the yard of the compound and they were only allowed to talk about how they were doing 1988 Witness 6 was wearing a jacket over a short-sleeved shirt and the witness could not see visible injuries on his body 1989 Someone the witness believed to be a KLA commander told them that they could come and bring Witness 6 home in one week 1990 A week later on 25 July 1998 Witness 6’s brother went to Jablanica Jabllanicë and brought Witness 6 home 1991 Witness 23 then saw that Witness 6 had lots of bruises on his body but not on his face 1992 Witness 6 went to see a doctor and X-rays showed that his arm was broken 1993 Witness 6 told her that he had been beaten all the time and that his arm was already broken when she visited him but that he had been told to remove the bandages at the time of the visit 1994 388 Witness 16 testified that fellow villagers had told him that Witness 6 had been taken to and was being held at Jablanica Jabllanicë in Đakovica Gjakovë municipality by individuals whom Witness 16 did not identify 1995 A group of villagers including Witness 16 and Witness 7 drove to Jablanica Jabllanicë to demand his release 1996 Between Žabelj Zhabel in Đakovica Gjakovë municipality and Jablanica Jabllanicë they encountered a checkpoint manned by KLA soldiers 1997 Witness 16 told the soldiers that they had come to ask about the fate of Witness 6 1998 One of the soldiers told them that they could continue towards Jablanica Jabllanicë but that they should not enter the village 1999 The villagers stopped the car on the outskirts of 2000 Two soldiers one in a KLA uniform the other in a black Jablanica Jabllanicë uniform approached them and saluted them with a clenched fist 2001 Witness 16 told them that the villagers had come to ask the commander about the fate of Witness 6 2002 One of the soldiers confirmed that Witness 6 was being held there and said that the 1988 P1221 Witness 23 witness statement 18 January 2003 p 4 Witness 23 T 10538 D118 Photograph showing the Jablanica Jabllanicë compound 1989 Witness 23 T 10550 10558-10559 1990 P1221 Witness 23 witness statement 18 January 2003 p 4 1991 P1221 Witness 23 witness statement 18 January 2003 pp 2 4 1992 P1221 Witness 23 witness statement 18 January 2003 p 4 Witness 23 T 10538-10539 10559 1993 P1221 Witness 23 witness statement 18 January 2003 p 4 Witness 23 T 10538-10539 1055110552 1994 P1221 Witness 23 witness statement 18 January 2003 p 4 1995 P1237 Witness 16 witness statement 6 May 2004 paras 3-4 1996 P1237 Witness 16 witness statement 6 May 2004 paras 4-5 14 1997 P1237 Witness 16 witness statement 6 May 2004 para 5 1998 P1237 Witness 16 witness statement 6 May 2004 para 6 1999 P1237 Witness 16 witness statement 6 May 2004 para 6 2000 P1237 Witness 16 witness statement 6 May 2004 para 7 2001 P1237 Witness 16 witness statement 6 May 2004 para 7 2002 P1237 Witness 16 witness statement 6 May 2004 para 8 Case No IT-04-84-T 219 3 April 2008 commander would come to see them 2003 The villagers waited opposite the KLA compound which was the first construction in Jablanica Jabllanicë on the left-hand side of the road when coming from Žabelj Zhabel and consisted of one long building that looked like a stable and one two-story building 2004 An armed man arrived in a jeep cocked his machine-gun saluted the villagers with a clenched fist and identified himself as the commander 2005 He stated that Witness 6 had been arrested and sentenced but would be released 2006 He refused to let anyone from the group visit Witness 6 2007 When the villagers remarked that they all belonged to the same Albanian nation and had the same president Rugova the commander answered that they were not the same because the villagers were not fighting and that he did not recognize Rugova 2008 The commander then went to the KLA compound and the villagers returned home 2009 Witness 16 could not describe the commander and would not be able to recognize him 2010 389 Witness 7 testified that he heard from a friend in late June 1998 that Witness 6 had been arrested and taken to the KLA headquarters in Jablanica Jabllanicë in Đakovica Gjakovë municipality 2011 The friend had heard this from a relative of Witness 7 who had seen the KLA driving Witness 6 to Jablanica Jabllanicë 2012 Witness 7 then drove to Jablanica Jabllanicë with the village elders to demand Witness 6’s release 2013 Witness 7 described the KLA headquarters there as being the first compound on the left hand side when one entered the village from the direction of Žabelj Zhabel in Đakovica Gjakovë municipality 2014 It was a big house within a fenced compound with many KLA soldiers present 2015 When they arrived at the KLA headquarters Witness 7 and the village elders explained to the guard at the front gate why they had come the guard responded that they would have to speak to the commander “Maxhupi” 2016 After some time two men in black uniforms with KLA 2003 P1237 Witness 16 witness statement 6 May 2004 para 9 P1237 Witness 16 witness statement 6 May 2004 para 10 2005 P1237 Witness 16 witness statement 6 May 2004 paras 11-13 2006 P1237 Witness 16 witness statement 6 May 2004 para 13 2007 P1237 Witness 16 witness statement 6 May 2004 paras 14 18 2008 P1237 Witness 16 witness statement 6 May 2004 paras 15-17 2009 P1237 Witness 16 witness statement 6 May 2004 para 18 2010 P1237 Witness 16 witness statement 6 May 2004 para 19 2011 P1248 Witness 7 witness statement 28 April 2004 para 3 2012 P1248 Witness 7 witness statement 28 April para 4 2013 P1248 Witness 7 witness statement 28 April para 5 2014 P1248 Witness 7 witness statement 28 April para 6 2015 P1248 Witness 7 witness statement 28 April para 6 2016 P1248 Witness 7 witness statement 28 April para 7 2004 Case No IT-04-84-T 220 3 April 2008 patches and armed with side pistols came to the front gate and one of them introduced himself as “Commander Maxhupi” 2017 Witness 16 demanded to know the real name of “Maxhupi” without success 2018 Witness 16 then explained that they had come to seek the release of Witness 6 2019 “Maxhupi” replied that he had convicted Witness 6 without saying of what and that he would have to serve his time with the KLA 2020 “Maxhupi” did not allow the visitors to see Witness 6 but promised Witness 7 that he would be able to see him in two weeks time 2021 “Maxhupi” then asked the group why they were not fighting at the front line to which someone said that they had expected Rugova to be their leader in the war 2022 “Maxhupi” responded very angrily to this saying that he considered Rugova a traitor and a supporter of the Serbian authorities 2023 390 Witness 7 visited Jablanica Jabllanicë daily for the next two weeks but was never allowed into the compound 2024 Thirteen days after the abduction of Witness 6 Witness 7 informed the guard at the gate of the Jablanica Jabllanicë compound that “Maxhupi” had said that he could visit Witness 6 after two weeks 2025 The guard said that he would inform Commander “Maxhupi” that the witness was there and let him into the compound 2026 After a while the man who called himself “Maxhupi” drove into the compound in a military jeep 2027 The witness explained to him that Witness 6 had been imprisoned two weeks earlier and that “Maxhupi” had said that the witness would be allowed to see Witness 6 only after two weeks 2028 “Maxhupi” told the witness that he would not let him see Witness 6 and then ordered Witness 7 out of the compound 2029 Although Witness 7 returned to Jablanica Jabllanicë during the following days but never entered the compound he did not met “Maxhupi” again 2030 During these visits Witness 7 gained the trust of one of the KLA soldiers who told Witness 7 that Witness 6 was alive and was working in the kitchen as well as serving food 2031 One day 2017 P1248 Witness 7 witness statement 28 April para 8 P1248 Witness 7 witness statement 28 April paras 9-10 2019 P1248 Witness 7 witness statement 28 April paras 10-12 2020 P1248 Witness 7 witness statement 28 April para 13 2021 P1248 Witness 7 witness statement 28 April paras 14 16 2022 P1248 Witness 7 witness statement 28 April para 15 2023 P1248 Witness 7 witness statement 28 April para 15 2024 P1248 Witness 7 witness statement 28 April para 18 2025 P1248 Witness 7 witness statement 28 April para 19 2026 P1248 Witness 7 witness statement 28 April para 20 2027 P1248 Witness 7 witness statement 28 April para 21 2028 P1248 Witness 7 witness statement 28 April paras 21-22 2029 P1248 Witness 7 witness statement 28 April paras 23-25 2030 P1248 Witness 7 witness statement 28 April paras 26-27 2031 P1248 Witness 7 witness statement 28 April paras 27-28 2018 Case No IT-04-84-T 221 3 April 2008 Witness 7 was allowed into the compound and taken to a commander who he had never met before 2032 The commander told Witness 7 to leave as Witness 6 had already been convicted 2033 However after speaking with this man Witness 7 went looking for the KLA soldier he had befriended and told him about the meeting with the commander 2034 The soldier expressed doubt that Witness 7 had spoken to a commander and then went inside the compound and informed Witness 6 that Witness 7 was outside and sent his regards 2035 The soldier thus became a courier passing on messages between Witness 6 and Witness 7 2036 A week later a KLA soldier told Witness 7 that he would be allowed to visit Witness 6 2037 Witness 7 then went home and returned with two others one of which was Witness 23 and all three visited Witness 6 for two hours 2038 Witness 7 later learned from Witness 6 that the man who had allowed the visit was Nazmi Brahimaj who Witness 7 testified is the brother of “Maxhupi” 2039 Nazmi Brahimaj told Witness 7 that he would have released Witness 6 that day but he did not have the paper-work by which he meant Witness 6’s weapons permit and driving licence as well as receipts for the gun and vehicle that were seized from Witness 6 but that this would be taken care of in about a week 2040 A week after this meeting Witness 6 was released 2041 Witness 7 stated that the village Witness 6 came from consisted mainly of LDK supporters but that he did not know why Witness 6 had been abducted 2042 391 As referred to above Witness 6 testified that on or about 13 June 1998 KLA soldiers severely beat him at a compound in Jablanica Jabllanicë Witness 6 further testified that during the next four weeks or so he was in a room at the compound and regularly beaten by KLA soldiers According to Witness 6 he was in a poor physical condition and suffered lasting physical consequences from the beatings The Trial Chamber considers Witness 6 to be a credible witness and is satisfied that the beatings caused him serious physical suffering and injury In light of the severity of the beatings and their repetition over time the Trial Chamber is also satisfied that the perpetrators of these beatings must have intended to cause such suffering and injury For these reasons 2032 P1248 Witness 7 witness statement 28 April paras 29-30 P1248 Witness 7 witness statement 28 April paras 29-30 2034 P1248 Witness 7 witness statement 28 April para 31 2035 P1248 Witness 7 witness statement 28 April paras 31-32 2036 P1248 Witness 7 witness statement 28 April para 32 2037 P1248 Witness 7 witness statement 28 April para 34 2038 P1248 Witness 7 witness statement 28 April paras 35-36 2039 P1248 Witness 7 witness statement 28 April para 36 2040 P1248 Witness 7 witness statement 28 April paras 37-38 2041 P1248 Witness 7 witness statement 28 April para 39 2033 Case No IT-04-84-T 222 3 April 2008 the Trial Chamber concludes that KLA soldiers committed cruel treatment against Witness 6 392 Witness 6 and Witness 23 testified that on or about 13 June 1998 KLA soldiers searched Witness 6 and his car finding a police-issued pistol and a photograph of Witness 6 together with an Albanian policeman Witness 23 testified that the soldiers questioned Witness 6 about these items Witness 6 testified that those who beat him on his first day at the Jablanica Jabllanicë compound did not give him a reason why they were beating him However he also testified that during his time at the Jablanica Jabllanicë compound some KLA soldiers accused him of associating with and spying for the Serbs Witness 7 and Witness 16 testified that a commander at the Jablanica Jabllanicë compound told them that Witness 6 had been convicted or sentenced and spoke angrily against President Rugova and those who did not fight When Witness 6 was released he received a decision from Nazmi Brahimaj stating that “ if he repeats his mistakes Witness 6 will be prosecuted” On the basis of this evidence the Trial Chamber concludes that KLA soldiers mistreated Witness 6 to punish him for this perceived collaboration with Serbs and to discriminate against him on political grounds For this reason the Trial Chamber concludes that KLA soldiers tortured Witness 6 393 The Trial Chamber is furthermore convinced that these crimes were closely related to the armed conflict in Kosovo Kosova and that Witness 6 was not taking active part in hostilities at the time the crimes were committed and that the perpetrators knew or should have known that this was the case 394 All three Accused are charged with Count 28 as participants in a joint criminal enterprise The Trial Chamber will deal with the alleged joint criminal enterprise in section 7 below Lahi Brahimaj is also charged in the alternative with committing or aiding and abetting the crimes charged in this count 395 Witness 6 testified that Lahi Brahimaj participated in some of his beatings and was sometimes present while others beat him Witness 6 also testified that Lahi Brahimaj was among those who accused him of associating with and spying for the Serbs Witness 6 had ample opportunity to observe Lahi Brahimaj during the approximately four weeks during which he was beaten Furthermore Witness 6 testified 2042 P1248 Witness 7 witness statement 28 April paras 40-41 Case No IT-04-84-T 223 3 April 2008 that during the following couple of weeks he repeatedly observed Lahi Brahimaj at the Jablanica Jabllanicë compound According to Witness 6 he heard others address him as “Lahi” or “Maxhup” and heard from Gani Brahimaj that “Maxhup” was Lahi Brahimaj’s nickname Witness 6 later recognized Lahi Brahimaj on a photo board See in this regard section 2 3 above The Trial Chamber is therefore convinced beyond a reasonable doubt that Lahi Brahimaj personally participated in the cruel treatment and torture of Witness 6 and concludes that he should be convicted for committing these crimes Consequently the Trial Chamber does not need to address whether he aided and abetted their commission 6 16 Cruel treatment torture and murder of Nenad Remištar and four unidentified people Count 30 396 All three Accused are charged as participants in a joint criminal enterprise with the cruel treatment torture and murder of Nenad Remištar and of four unknown men in violation of the laws or customs of war The Trial Chamber has heard relevant evidence from Witness 73 Nebojša Avramović Zoran Stijović and Witness 6 397 Witness 73 stated that on 13 June 1998 Nenad Remištar who worked as a traffic police officer in Đakovica Gjakova had left from Biča Binxhë in Klina Klinë municipality to go to Đakovica Gjakova in his blue Opel Kadett with Đakovica Gjakova licence plates 2043 He was dressed in civilian clothes 2044 After 10 days Dragiša Šimigić a work colleague and the MUP officer on duty in Đakovica Gjakova informed the witness that Nenad Remištar had been absent from work for that time 2045 Aleksandar Remištar Nenad’s father learned from an unidentified Albanian that his son and a Catholic Albanian man had been kidnapped near the village of Rakovina Rakovinë in the municipality of Đakovica Gjakovë and were being imprisoned in Jablanica Jabllanicë in the same municipality 2046 The unidentified Albanian said that Nenad Remištar was still alive and was being protected 2043 P1242 Witness 73 witness statement 13 November 2007 para 4 P1242 Witness 73 witness statement 13 November 2007 para 5 2045 P1242 Witness 73 witness statement 13 November 2007 para 8 2046 P1242 Witness 73 witness statement 13 November 2007 paras 10-11 2044 Case No IT-04-84-T 224 3 April 2008 by a KLA soldier who knew him 2047 The unidentified Albanian man had received this information from the Catholic Albanian man 2048 398 Nebojša Avramović testified that the MUP employees Rade Popović sic Nikola Jovanović and Nenad Remištar disappeared at the end of April or the beginning of May 1998 in the area around the Đakovica Gjakovë – Peć Pejë road 2049 From the reports that he read at the time Avramović concluded that Rade Popović sic and Nikola Jovanović were on duty 2050 Their superior officer reported them as missing 2051 Avramović testified that a report filed by Nenad Remištar’s relatives and his superior officers stated that Nenad Remištar was kidnapped while he was going from his home in Glina to work when he was travelling along the Đakovica Gjakovë-Priština Prishtinë road 2052 The Trial Chamber considers that the witness’s testimony referring to Rade Popović was actually referring to Rade Popadić as evidenced by the connection with Nikola Jovanović noted above in section 6 12 2 above 399 Zoran Stijović head of the Analytical Section of the Priština Prishtinë RDB Centre from 1995 until 1999 testified that the RDB had information that Nenad Remištar a Serbian policeman was detained in Jablanica Jabllanicë 2053 400 Witness 6 a Catholic Albanian 2054 testified that before 6 p m on 13 June 1998 he and “Nenad” were in a room adjacent to the entrance of the Jablanica Jabllanicë compound 2055 Witness 6 knew Nenad as a Serbian or Montenegrin policeman who worked in Đakovica Gjakovë 2056 Witness 6 had heard from Zokan Kuqi that Nenad was from Biča Binxhë village in Klina Klinë municipality 2057 Witness 6 saw Nazmi Brahimaj and a group of soldiers kick and beat Nenad with a baseball bat and other items leaving him unconscious bruised and unable to walk 2058 The soldiers did not 2047 P1242 Witness 73 witness statement 13 November 2007 para 11 P1242 Witness 73 witness statement 13 November 2007 para 10 2049 P380 Nebojša Avramović witness statement 4 June 2007 para 13 Nebojša Avramović T 66006602 See also P385 Map of unsafe area for Serbs according to Witness Avramović 2050 Nebojša Avramović T 6604 2051 Nebojša Avramović T 6604 2052 Nebojša Avramović T 6605 2053 P931 Zoran Stijović witness statement 27 September 2007 paras 2 55 2054 Witness 6 T 5166-5167 5238-5239 5263-5264 5305 5399 2055 Witness 6 T 5204 5213-5215 5293 5316 P333 Photo of Jablanica Jabllanicë compound on which the witness marked where he and Nenad were beaten 2056 Witness 6 T 5196-5197 5354 2057 Witness 6 T 5197 5354 2058 Witness 6 T 5208-5211 5324 2048 Case No IT-04-84-T 225 3 April 2008 give any explanation why they were beating Nenad 2059 Witness 6 did not remember seeing Lahi Brahimaj that evening 2060 Witness 6 and Nenad were tied up and left in the room overnight 2061 In the afternoon of the next day 14 June 1998 two soldiers took Nenad away 2062 Witness 6 never saw Nenad again 2063 He later heard from Pavle Zuvić a police officer that Nenad had been killed at Jablanica Jabllanicë and his body may have been dumped somewhere in the mountains near Peć Pejë or Klina Klinë 2064 401 Approximately two weeks after 13 June when Witness 6 had arrived a group of four other detainees one Bosnian and three Montenegrins came to Witness 6’s room 2065 Witness 6 testified that the Bosnian was a Muslim and that he heard soldiers say while beating the man that he had worked for the Elektrokosova company in Dečani Deçan had interrupted the power supply and worked for Serbia 2066 Individuals whom Witness 6 did not know and could not describe took turns kicking slapping and beating the four newcomers with baseball bats one person also used a knife to superficially stab them in particular the Bosnian 2067 They bled from their wounds and spat blood 2068 There was also blood on the floor 2069 The four persons stayed in the room for three or four days 2070 During this time Witness 6 would see Nazmi and Hamza Brahimaj in the room 2071 One evening around 10 p m individuals whom Witness 6 did not identify took away the four detainees 2072 Witness 6 never saw them again 2073 402 The evidence of Witness 73 is consistent with the testimony of Witness 6 and Witness 23 see section 6 15 above and the Trial Chamber is convinced that the Nenad referred to by Witness 6 was Nenad Remištar The Trial Chamber is also satisfied that the beatings caused Nenad Remištar serious physical suffering In light of the severity of the beatings the Trial Chamber is furthermore convinced that the perpetrators must 2059 Witness 6 T 5211 Witness 6 T 5372 2061 Witness 6 T 5210 5213 5215-5216 5304 5316 P333 Photo of Jablanica Jabllanicë compound on which the witness marked where he and Nenad were beaten 2062 Witness 6 T 5211 5213 5216 5316-5317 5324 2063 Witness 6 T 5317-5318 5324 2064 Witness 6 T 5279 5313-5314 5323-5324 2065 Witness 6 T 5217 5226-5227 5329 5387 2066 Witness 6 T 5227 5329-5330 5397 2067 Witness 6 T 5228 5330-5331 2068 Witness 6 T 5228 2069 Witness 6 T 5230 2070 Witness 6 T 5227 5330 5387 2071 Witness 6 T 5228 2072 Witness 6 T 5230 2060 Case No IT-04-84-T 226 3 April 2008 have intended to cause such suffering For these reasons the Trial Chamber is convinced that KLA soldiers committed cruel treatment against Nenad Remištar On the basis of the ethnicity of the victim his job as a policeman and the absence of any reasonable alternative explanation for his detention and ill treatment the Trial Chamber concludes that KLA soldiers mistreated Nenad Remištar to punish intimidate and or discriminate against him For this reason the Trial Chamber concludes that KLA soldiers tortured Nenad Remištar 403 Witness 6 testified that in the afternoon of 14 June 1998 two KLA soldiers took Nenad Remištar from the room where he and Witness 6 had spent the night Witness 6 further testified that he never saw Nenad Remištar again The Trial Chamber has heard multiple hearsay evidence from Witness 73 that Nenad Remištar was in Jablanica Jabllanicë alive and under the protection of a KLA soldier This multiple hearsay evidence suggests that the original source was Witness 6 himself The Trial Chamber considers the direct evidence of Witness 6 to be more reliable than the multiple hearsay evidence As to Nenad Remištar’s death Witness 6 could provide only hearsay evidence that he was killed in Jablanica Jabllanicë which Witness 6 learned from a Serbian police officer The Trial Chamber did not receive evidence that corroborates this hearsay evidence Considering that Nenad Remištar has never been seen again the Trial Chamber accepts that he is in all likelihood dead As his remains have not been recovered there is no expert evidence as to the cause of his death The Trial Chamber concludes that the evidence does not allow for a conclusion beyond a reasonable doubt that Nenad Remištar was murdered 404 The Trial Chamber is convinced that the cruel treatment and torture were closely related to the armed conflict in Kosovo Kosova and that Nenad Remištar was not taking active part in hostilities at the time the crimes were committed and that the perpetrators knew or should have known that this was the case 405 Witness 6 testified that around the end of June 1998 one Bosnian and three Montenegrins came to his room at the Jablanica Jabllanicë compound According to Witness 6 he saw some individuals taking turns kicking slapping and beating them with baseball bats and one person also superficially stabbed them with a knife Witness 6 testified that they bled from their wounds and spat blood He testified that they spent three or four days in the room before being taken away Witness 6 did not provide any 2073 Witness 6 T 5230 Case No IT-04-84-T 227 3 April 2008 information about the perpetrators Based on the evidence adduced under Counts 27-32 and the ability of the perpetrators to gain access at that time to that room at the Jablanica Jabllanicë compound the Trial Chamber is satisfied that they were KLA soldiers or persons affiliated with the KLA The Trial Chamber is also satisfied that the beatings and stabbings caused these four men serious physical suffering and injury In light of the severity of the ill-treatment the Trial Chamber is furthermore convinced that the perpetrators must have intended to cause such suffering and injury For these reasons the Trial Chamber concludes that KLA soldiers or persons affiliated with the KLA committed cruel treatment against the four men 406 Witness 6 testified that he heard the perpetrators say while beating the Bosnian man that he had worked for the Elektrokosova company in Dečani Deçan had interrupted the power supply and had worked for Serbia The Trial Chamber is satisfied that the purpose of his beatings was to punish him for his alleged activities The Trial Chamber has received no evidence as to why the three Montenegrins were ill-treated For these reasons the Trial Chamber is convinced beyond a reasonable doubt that KLA soldiers or persons affiliated with the KLA tortured the Bosnian but not that they tortured the three Montenegrins It is not factually alleged in the Indictment that the Bosnian and the three Montenegrins were murdered The Trial Chamber therefore finds that the charge of murder is restricted to Nenad Remištar 407 The Trial Chamber is furthermore convinced that these crimes were closely related to the armed conflict in Kosovo Kosova and that the victims were not taking active part in hostilities at the time the crimes were committed and that the perpetrators knew or should have known that this was the case 408 All three Accused are charged with Count 30 as participants in a joint criminal enterprise The Trial Chamber will deal with this mode of liability in section 7 below 6 17 Jablanica Jabllanicë KLA headquarters Count 32 6 17 1 Cruel treatment torture and murder of Pal Krasniqi 409 All three Accused are charged as participants in a joint criminal enterprise with the cruel treatment torture and murder of Pal Krasniqi in violation of the laws or customs of war Case No IT-04-84-T 228 3 April 2008 410 Count 32 of the Indictment charges the Accused with war crimes allegedly committed against three victims Paragraphs 99-100 concern Pal Krasniqi paragraphs 101-102 concern Skender Kuqi and paragraphs 103-106 concern Witness 3 Paragraphs 99-100 do not specify any acts or omissions of any of the Accused Paragraphs 101-102 do not specify any acts or omissions of Lahi Brahimaj and Idriz Balaj Nor are any acts or omissions of these Accused for the specific facts alleged in paragraphs 99-102 to be found anywhere else in the Indictment Nevertheless Count 32 appears to charge all three Accused with all alleged crimes against all three victims based on one or more alternative modes of liability 411 Apart from Count 32 and Count 31 which concerns the same alleged facts all Counts in the Indictment in which an Accused is charged with any mode of liability other than participation in a joint criminal enterprise describe the alleged acts or omissions of that Accused In addition Count 32 alleges in paragraph 102 that Ramush Haradinaj instructed the exhumation of Skender Kuqi’s remains and their return to his family Haradinaj is charged in the alternative with aiding and abetting the commission of the crimes described in Count 32 The Trial Chamber understands the Indictment to plead that Haradinaj’s instructions amounted to aiding and abetting the cruel treatment torture and murder of Skender Kuqi In light of this the absence of any mention of the two other Accused in the factual allegations concerning Skender Kuqi suggests that the Prosecution did not intend to charge them with any alternative mode of liability for the alleged crimes against this victim Likewise it suggests that the Prosecution did not intend to charge any of the Accused with any alternative mode of liability for the alleged crimes against Pal Krasniqi 412 The Trial Chamber therefore finds that the alternative modes of liability charged in Count 32 in fine should be properly limited to those of the Accused if any who are named in connection with the facts alleged for each of the three victims Hence none of the Accused are charged in the alternative with the crimes allegedly committed against Pal Krasniqi Only Haradinaj is charged in the alternative with the crimes allegedly committed against Skender Kuqi See Section 6 17 2 As for Witness 3 all of the Accused are charged in the alternative See Section 6 17 3 413 The Trial Chamber has heard relevant evidence on the alleged crimes against Pal Krasniqi from a number of witnesses as well as forensic medical evidence Case No IT-04-84-T 229 3 April 2008 414 Mahir Demaj a Kosovar Albanian 2074 stated that he and Pal Krasniqi who both wanted to join the KLA were travelling by bus in 1998 although he cannot recall the exact date 2075 They were stopped by a group of armed Serbian civilians on the road between Trstenik Trëstenik in Peć Pejë municipality and Klina Klinë 2076 The civilians called uniformed police who immediately started to beat and kick them 2077 They were then taken to Klina Klinë police station where they were interrogated while the beating continued with fists boots and a metal tool 2078 At around midnight Mahir Demaj and Pal Krasniqi were allowed to leave the police station 2079 They went into hiding however the police soon found them and returned them to Klina Klinë where they were once again released 2080 The two men did not intend to report to the police station as they had been ordered and instead continued to Grabanica Grabanicë in Klina Klinë municipality where they met some members of the KLA one of the members of the KLA showed them the way to Jablanica Jabllanicë in Đakovica Gjakovë municipality 2081 Upon arrival in Jablanica Jabllanicë Pal Krasniqi and Mahir Demaj were taken to an improvised hospital where Mahir Demaj was treated for his injuries 2082 Mahir Demaj recalls at least ten persons being treated in the hospital one of whom was a KLA member wounded by a bullet 2083 Mahir Demaj stated that he discharged himself the following day and that he and some of his relatives joined a group heading towards Junik in Dečani Deçan municipality to collect weapons from Albania 2084 Pal Krasniqi remained in Jablanica Jabllanicë 2085 The last time that Mahir Demaj saw Pal Krasniqi he was wearing civilian clothing including a pair of blue jeans 2086 Pal Krasniqi stated that he was going to remain with friends in Jablanica Jabllanicë 2087 2074 P1240 Mahir Demaj witness statement 26 April 2007 para 3 P1240 Mahir Demaj witness statement 26 April 2007 paras 3 4 5 Addendum para 2 2076 P1240 Mahir Demaj witness statement 26 April 2007 para 5 2077 P1240 Mahir Demaj witness statement 26 April 2007 para 5 2078 P1240 Mahir Demaj witness statement 26 April 2007 para 5 2079 P1240 Mahir Demaj witness statement 26 April 2007 para 6 2080 P1240 Mahir Demaj witness statement 26 April 2007 para 6 2081 P1240 Mahir Demaj witness statement 26 April 2007 paras 7 8 9 2082 P1240 Mahir Demaj witness statement 26 April 2007 paras 10 11 2083 P1240 Mahir Demaj witness statement 26 April 2007 para 12 2084 P1240 Mahir Demaj witness statement 26 April 2007 para 13 2085 P1240 Mahir Demaj witness statement 26 April 2007 para 13 2086 P1240 Mahir Demaj witness statement 26 April 2007 para 14 2087 P1240 Mahir Demaj witness statement 26 April 2007 para 14 2075 Case No IT-04-84-T 230 3 April 2008 415 Ded Krasniqi an Albanian 2088 testified that on 10 July 1998 his son Pal Krasniqi together with a friend Mahir Demaj left for Jablanica Jabllanicë to join the KLA 2089 Pal Krasniqi was wearing a striped T-shirt with a red-striped collar light blue to white sport shoes and blue sports trousers with a white stripe 2090 On the way they were apprehended at the Velika Krusa Krusha ë Madhe police checkpoint 2091 They were beaten by Serbian police and taken to Klina Klinë 2092 On 11 July 1998 around 6 a m Pal Krasniqi called Ded Krasniqi from Klina Klinë and told him what had happened 2093 The witness advised his son to go to Jablanica Jabllanicë as planned 2094 Dede Deda the witness’s nephew and a friend of Pal Krasniqi told the witness that in the middle of August 1998 Pal Krasniqi briefly phoned him from Jablanica Jabllanicë 2095 According to Dede Deda Pal Krasniqi said that he had a lot of money on him and wanted to meet 2096 Dede Deda said that they arranged a meeting on the same day in Đakovica Gjakovë but Pal Krasniqi did not show up 2097 At an unspecified date after the war the witness met with Mahir Demaj in Peć Pejë and asked him about his son 2098 Demaj was scared and told the witness not to look for his son saying “that nobody will dare to tell anything about it” 2099 Demaj also told the witness that he and Pal Krasniqi went to Jablanica Jabllanicë that Demaj was taken to hospital there because of the injuries he had suffered from the beatings and that Pal joined the KLA 2100 According to what Demaj told the witness about five days after they left for Jablanica Jabllanicë Pal Krasniqi visited Demaj in the hospital 2101 He was accompanied by two soldiers 2102 That was the last time Demaj saw the witness’s son 2103 2088 Ded Krasniqi T 4767-4768 Ded Krasniqi T 4768-4770 4774 4805 2090 Ded Krasniqi T 4787-4789 2091 Ded Krasniqi T 4770 4807 2092 Ded Krasniqi T 4770 4773-4774 4807 4833 2093 Ded Krasniqi T 4770 4807 4829 See also P1240 Mahir Demaj witness statement 26 April 2007 para 8 2094 Ded Krasniqi T 4771 2095 Ded Krasniqi T 4818-4821 4835-4837 2096 Ded Krasniqi T 4820-4821 4835 2097 Ded Krasniqi T 4820-4821 4835-4837 2098 Ded Krasniqi T 4771-4772 4809 2099 Ded Krasniqi T 4772 4809 2100 Ded Krasniqi T 4772-4773 4810 2101 Ded Krasniqi T 4773-4774 4810 2102 Ded Krasniqi T 4810 2103 Ded Krasniqi T 4773-4774 2089 Case No IT-04-84-T 231 3 April 2008 416 Ded Krasniqi testified that in 1998 his brother together with some villagers went to Jablanica Jabllanicë to inquire about the witness’s son 2104 The witness’s brother was told that Pal Krasniqi “went to Pejë” meaning that he disappeared and would never return 2105 In 2000 the witness started looking for his son 2106 He first went to Jablanica Jabllanicë and spoke with a KLA member named Hamez Ukshini who told the witness that Pal Krasniqi was not registered on the list of KLA members who had arrived in and departed from Jablanica Jabllanicë 2107 After this the witness went to Klina Klinë to see Alush Agushi a KLA commander 2108 Agushi told the witness that his son had been with him until “the first offensive in September” 2109 Alush Agushi took some notes and told Ded Krasniqi that he would get back to him in two weeks but the witness did not hear from Agushi again 2110 417 In October or November 2000 Witness 6 visited Ded Krasniqi 2111 He told Ded Krasniqi that he had been in prison in Jablanica Jabllanicë together with Ded Krasniqi’s son who was mistreated 2112 Ded’s son was accused of being a spy for the Serbian police 2113 418 Witness 6 testified that one day around the middle of July 1998 the day after the arrival at Jablanica Jabllanicë of a man from Zahać Zahaq in Peć Pejë municipality Pal Krasniqi arrived there 2114 Witness 6 brought food and water to the room where these men were kept 2115 Witness 6 learned from Pal Krasniqi that he was from Meca Meqe in Đakovica Gjakovë municipality and that he was Catholic 2116 He wore sports clothes – a track suit with a white stripe on the side 2117 Witness 6 saw soldiers beat Pal Krasniqi with a baseball bat 2118 Pal Krasniqi was in a poor condition as a result 2119 On the same day at around 1 00 p m Witness 6 saw Pal Krasniqi try to escape through a 2104 Ded Krasniqi T 4817-4818 4822 Ded Krasniqi T 4817-4818 4822-4825 2106 Ded Krasniqi T 4775-4776 2107 Ded Krasniqi T 4775-4778 2108 Ded Krasniqi T 4775 4779 4810 2109 Ded Krasniqi T 4783-4784 4810-4812 2110 Ded Krasniqi T 4780-4781 2111 Ded Krasniqi T 4790 4793 4795 2112 Ded Krasniqi T 4794 2113 Ded Krasniqi T 4794 2114 Witness 6 T 5206 5231-5233 5247-5249 5252-5255 5293 5297-5298 5334 5386 5388-5389 5391 P334 Photo of Pal Ded Krasniqi with crutches and one other person 2115 Witness 6 T 5204-5205 5332-5333 5335-5337 P332 Photo of Jablanica Jabllanicë compound 2116 Witness 6 T 5238 5335 5358 2117 Witness 6 T 5247 2118 Witness 6 T 5235 5335 2119 Witness 6 T 5235 5237 2105 Case No IT-04-84-T 232 3 April 2008 window together with the man from Zahać Zahaq and a man from Grabanica Grabanicë in Klina Klinë municipality 2120 Hamza Brahimaj and other soldiers caught Pal Krasniqi beat him in front of Witness 6 and brought him back to his room 2121 Pal Krasniqi was swollen bloody spitting blood and lying on the floor unable to eat or drink 2122 Towards the end of Witness 6’s stay at Jablanica Jabllanicë Pal Krasniqi’s health had improved and he was walking around in the yard 2123 On 25 July 1998 Witness 6 left Jablanica Jabllanicë 2124 At that time Pal Krasniqi was the only person detained there 2125 Witness 6 never saw him again 2126 419 Witness 3 testified that around early-to-mid-July 1998 he came to a room in the KLA staff building in Jablanica Jabllanicë where he remained for the next two nights and three days 2127 There were two other persons detained in the room 2128 One of them was Skender Kuqi the other man wore a sports tracksuit with some yellow and white buttons on the side but Witness 3 testified that someone changed his clothes after a while because he smelled 2129 This man was badly injured his body swollen and he could not move 2130 He relieved himself in the room 2131 At night all three detainees had their hands tied 2132 Witness 3 once saw Nazmi Brahimaj and Miftar Brahimaj when they came to the room 2133 He also saw Naser “Rusi” Brahimaj whom he had known for a long time enter the room repeatedly to beat the other two detainees 2134 The witness decided to escape and told his two co-detainees that they should follow him if they wished 2135 Around mid-day Witness 3 escaped through the window 2136 Witness 3 saw Skender Kuqi trying to follow him but did not see whether the other 2120 Witness 6 T 5236-5238 5338-5339 5389-5390 Witness 6 T 5237 5239-5240 5338 5390 2122 Witness 6 T 5240-5241 2123 Witness 6 T 5341 5359-5360 2124 Witness 6 T 5206 5255 5297-5298 P335 Decisions signed by Nazmi Brahimaj 2125 Witness 6 T 5239 5251 5359-5360 2126 Witness 6 T 5241 5250-5251 2127 Witness 3 T 7937-7938 7942-7943 7945 7948 8008-8010 D118 Photograph of a shack in Jablanica Jabllanicë that allegedly was used as a prison view with meadow 2128 Witness 3 T 7946 2129 Witness 3 T 7947 2130 Witness 3 T 7950 8028 2131 Witness 3 T 7951 8028 2132 Witness 3 T 7951 8010 2133 Witness 3 T 7949 8017 2134 Witness 3 T 7949-7950 8018 2135 Witness 3 T 7955 7957 2136 Witness 3 T 7957-7959 8019-8020 P914 Photograph on which Witness 3 marked his escape route and Lahi Brahimaj’s room 2121 Case No IT-04-84-T 233 3 April 2008 man tried to follow 2137 At least ten days later he returned with Lahi Brahimaj to the KLA staff headquarters in Jablanica Jabllanicë and there went to see the man whose identity he did not know who was in the same condition as Witness 3 had last seen him 2138 Brahimaj asked this man whether it was Witness 3 to whom Skender Kuqi had promised DEM 10 000 to help him escape 2139 The man answered in the negative while crossing himself 2140 420 Branimir Aleksandrić 2141 testified that a body labelled “R-9” was found on 11 September 1998 near the canal along the external side of the concrete wall where there were bullet markings together with eight other bodies 2142 The outer concrete wall showed bullet marking just above body R-9 2143 ICMP DNA analysis identified the remains labelled R-9 as those of Pal Krasniqi 2144 An autopsy conducted on the remains on 5 December 2003 found gunshot injuries to the head trunk and upper limbs 2145 These multiple gunshot injuries were determined to be the cause of death 2146 An autopsy conducted on the remains in September 1998 revealed a side-arm bullet entry wound on the left lower jaw exit wound on the right side of the skull 2147 The autopsy revealed fractures on both upper arms the right lower arm and the right thigh these could not have been caused by a fall 2148 The degree of decomposition was consistent with a time of death between April and August 1998 2149 Dominique Lecomte 2150 concluded that R-9 had been dead for approximately 2-3 months 2151 2137 Witness 3 T 7957 Witness 3 T 7946 7962 8026-8028 2139 Witness 3 T 7962 2140 Witness 3 T 7947-7948 7962 2141 P1260 Branimir Aleksandrić witness statement 26 June 2007 p 1 paras 1 4 6 9 11-12 245 Branimir Aleksandrić T 6732-6733 6737 P1113 Annex A to Branimir Aleksandrić witness statement 26 June 2007 p 1 P1114 Annex B to Branimir Aleksandrić witness statement 26 June 2007 2142 P1260 Branimir Aleksandrić witness statement 26 June 2007 paras 61-62 P414 Various photographs p 20 P416 Various photographs p 3 P418 Various photographs p 18 P645 Various photographs p 2 P649 Various photographs p 2 2143 P1260 Branimir Aleksandrić witness statement 26 June 2007 para 102 P418 Various photographs pp 12 15 P645 Various photographs p 3 2144 Agreed Facts 26 November 2007 No 56 2145 Agreed Facts 26 November 2007 Nos 57-58 2146 Agreed Facts 26 November 2007 No 59 2147 P618 Dušan Dunjić witness statement 8 June 2007 para 291 Dušan Dunjić T 6844 P668 Autopsy report R-9 pp 1-2 5-6 P670 Photographs R-9 p 4 2148 P618 Dušan Dunjić witness statement 8 June 2007 para 291 P668 Autopsy report R-9 pp 2 6 2149 P618 Dušan Dunjić witness statement 8 June 2007 para 292 2150 P926 CV of Dominique Lecomte Dominique Lecomte T 8758 2151 D166 Second Expert Report by Lecomte and Vorhauer 15 June 2007 p 20 Dominique Lecomte T 8769-8782 2138 Case No IT-04-84-T 234 3 April 2008 421 As referred to above Witness 6 testified that around the middle of July 1998 he saw KLA soldiers at the Jablanica Jabllanicë compound beat Pal Krasniqi with a baseball bat leaving him in a poor physical state He further testified that after Pal Krasniqi attempted to escape KLA soldiers beat him again leaving him swollen bloody spitting blood and lying on the floor unable to eat or drink Witness 3 testified that around early to mid-July 1998 he came to the Jablanica Jabllanicë compound where he spent two nights and three days in a room with two other persons one of whom he did not know This man according to Witness 3 was swollen badly injured could not move and relieved himself in the room Witness 3 further testified that he saw a KLA soldier enter the room several times and beat the man According to Witness 3 when he returned to the Jablanica Jabllanicë compound at least 10 days later he again saw the same man in the same poor condition Witness 3 stated that he saw the man cross himself Witness 6 testified that Pal Krasniqi said that he was Catholic The descriptions of his clothes provided by Witness 3 and Witness 6 are broadly consistent The Trial Chamber is satisfied that the man about whom Witness 3 testified and whom he did not know was Pal Krasniqi The forensic medical evidence confirms that Pal Krasniqi had suffered serious physical injuries The Trial Chamber is satisfied that KLA soldiers caused Pal Krasniqi serious physical suffering and injury In light of the severity of the beatings which continued despite Pal Krasniqi’s poor physical state the Trial Chamber is also satisfied that the perpetrators must have intended to cause such suffering and injury For these reasons the Trial Chamber concludes that KLA soldiers committed cruel treatment against Pal Krasniqi Ded Krasniqi testified that Witness 6 had informed him that Pal Krasniqi while at the Jablanica Jabllanicë compound had been beaten and accused of spying for the Serbs Since this hearsay evidence was not confirmed in Witness 6’s own evidence the Trial Chamber cannot draw a conclusion beyond a reasonable doubt as to the purpose of the beatings For this reason the Trial Chamber finds that the alleged crime of torture against Pal Krasniqi has not been proven beyond a reasonable doubt 422 According to the evidence Pal Krasniqi was last seen alive in an improved state of health on 25 July 1998 Ded Krasniqi testified that sometime in 1998 his brother went to Jablanica Jabllanicë to inquire about Pal Krasniqi and later told Ded Krasniqi that he had been told by an unidentified person that Pal Krasniqi “went to Pejë” The Trial Chamber has received multiple hearsay evidence from Ded Krasniqi that one day Case No IT-04-84-T 235 3 April 2008 in mid-August 1998 Dede Deda Krasniqi heard from Pal Krasniqi over the phone that he was in Jablanica Jabllanicë with a large sum of money The Trial Chamber has also received hearsay evidence that he failed to show up at a meeting with Dede Deda Krasniqi in Đakovica Gjakovë on the same day Ded Krasniqi also testified that KLA commander Alush Agushi told him that Pal Krasniqi had been with Agushi until the first offensive in September 1998 The Trial Chamber does not accept this uncorroborated hearsay evidence which is contradicted by the evidence of the forensic experts none of whom considered it possible that Pal Krasniqi died so shortly before his body was found at the Radonjić Radoniq canal The evidence does not establish that Pal Krasniqi ever left KLA custody Witness 6’s description of Pal Krasniqi’s clothes while he was at the Jablanica Jabllanicë compound matches those found on his remains Considering also the severe mistreatment of Pal Krasniqi by KLA men in whose hands he was last seen the Trial Chamber is convinced beyond a reasonable doubt that Pal Krasniqi was murdered in KLA custody 423 The Trial Chamber is furthermore convinced that these crimes were closely related to the armed conflict in Kosovo Kosova and that Pal Krasniqi was not taking active part in hostilities at the time the crimes were committed and that the perpetrators knew or should have known that this was the case 424 All three Accused are charged with Count 32 as participants in a joint criminal enterprise The Trial Chamber will deal with this mode of liability in section 7 below 6 17 2 Cruel treatment torture and murder of Skender Kuqi 425 All three Accused are charged as participants in a joint criminal enterprise with the cruel treatment torture and murder of Skender Kuqi in violation of the laws or customs of war Ramush Haradinaj is charged in the alternative with aiding and abetting the commission of the crimes committed against Skender Kuqi The Trial Chamber has heard relevant evidence from a number of witnesses 426 Qerim Kuqi an Albanian testified that his cousin Skender Kuqi lived in Ljutoglava Ljutoglava in 1998 2152 Skender Kuqi owned a shop in nearby Zahać Zahaq 2153 In July 1998 the witness visited Skender Kuqi at his shop 2154 Ten 2152 2153 Qerim Kuqi T 9988-9990 Qerim Kuqi T 9990 D32 Map of Locations Relevant to Indictment Case No IT-04-84-T 236 3 April 2008 minutes after the witness’s arrival two men arrived at the shop by car 2155 The men were wearing military-style camouflage jackets without insignia 2156 They wore red and black masks and were armed with automatic weapons 2157 The men entered the shop shouting in Serbian 2158 The men pointed their guns at the witness and searched his pockets 2159 The men took Skender Kuqi out of the shop to the garage where Skender Kuqi’s car a Mercedes was 2160 Three minutes after they had come the men left with Skender Kuqi in Skender Kuqi’s car and the car they had arrived in 2161 Skender Kuqi was driving his own car accompanied by one of the men 2162 The witness saw the two cars travelling together in the direction of Klina Klinë one after the other 2163 The witness never saw Skender Kuqi again 2164 The witness later told Adem Kuqi Skender Kuqi’s brother what had happened 2165 In 1998 Adem Kuqi was an unemployed police officer dismissed by the Serbian police 2166 Some weeks after these events Adem Kuqi told the witness that Skender Kuqi had died although he mentioned nothing about the circumstances of his death 2167 427 Witness 6 testified that one day around the middle of July 1998 he was in the yard of the place in Jablanica Jabllanicë where he was being detained when he saw a Mercedes 190 of metallic colour arrive and he also saw individuals whom he did not identify take an obese man out of the boot of the car 2168 Witness 6 heard from Pal Krasniqi that the man was a Muslim Albanian from Zahać Zahaq in Peć Pejë municipality 2169 Witness 6 testified that he saw KLA soldiers beat the man 2170 Witness 6 brought food and water to the room in which the man unknown to him was held 2171 The man was in a bad physical condition lying on the floor his body swollen and his 2154 Qerim Kuqi T 9991 Qerim Kuqi T 9991 9997 2156 Qerim Kuqi T 9997 10003 2157 Qerim Kuqi T 9998-9999 2158 Qerim Kuqi T 9998-9999 2159 Qerim Kuqi T 9999-10000 2160 Qerim Kuqi T 9999-10001 10005 2161 Qerim Kuqi T 10000-10001 2162 Qerim Kuqi T 10001 2163 Qerim Kuqi T 10002 2164 Qerim Kuqi T 9990 10005 2165 Qerim Kuqi T 9990 10004 2166 Qerim Kuqi T 9990 2167 Qerim Kuqi T 10004-10005 2168 Witness 6 T 5206 5231-5232 5252-5255 5293 5297-5298 5331-5332 5337 5386 5388-5389 5391 2169 Witness 6 T 5231 5331-5333 5340-5341 2170 Witness 6 T 5231-5232 5335 5337-5338 2171 Witness 6 T 5204-5205 5332-5333 5335-5337 P332 Photo of Jablanica Jabllanicë compound 2155 Case No IT-04-84-T 237 3 April 2008 eyes closed 2172 On the same day at around 1 p m Witness 6 saw the same man try to escape through a window together with Pal Krasniqi and another man from Grabanica Grabanicë in Klina Klinë municipality 2173 Hamza Brahimaj and other soldiers caught the man from Zahać Zahaq and beat him in front of Witness 6 2174 Witness 6 learned from Gani Brahimaj who worked at the Jablanica Jabllanicë facility as a cook that on the next day individuals whom Witness 6 did not identify sent the man from Zahać Zahaq for treatment to Glođane Gllogjan in Dečani Deçan municipality and that he died there 2175 Witness 6 testified that he did not know a person named Skender Kuqi 2176 428 Witness 3 2177 testified that around early-to-mid-July 1998 he came to a room in the KLA staff building in Jablanica Jabllanicë where he remained for the next two nights and three days 2178 There were two other persons detained in the room 2179 Witness 3 knew one of them as his former teacher Skender Kuqi 2180 Kuqi had multiple injuries the right side of his head was blackened and he was moaning and crying in pain 2181 He spoke a little with Witness 3 but otherwise had trouble speaking 2182 Kuqi relieved himself in the room 2183 At night all three detainees had their hands tied 2184 On the second night a doctor came to check on Kuqi 2185 Witness 3 once saw Nazmi Brahimaj and Miftar Brahimaj came to the room 2186 He also saw Naser “Rusi” Brahimaj a strong and blond man whom he had known for a long time enter the room repeatedly to beat the other two detainees 2187 The witness decided to escape and told his two co-detainees that they should follow him if they wished 2188 Around mid-day Witness 3 escaped through the window heard shots being fired and managed to reach a 2172 Witness 6 T 5235 5332-5333 5337 Witness 6 T 5236-5238 5338-5339 5389-5390 2174 Witness 6 T 5237 5239-5240 5338 5390 5395 2175 Witness 6 T 5218-5219 5231 5233 5239-5240 5332 5341 5388-5391 2176 Witness 6 T 5368 2177 Witness 3 T 7891-7892 7894 7912 7981-7982 7985 2178 Witness 3 T 7937-7938 7942-7943 7945 7948 8008-8010 D118 Photograph of a shack in Jablanica Jabllanicë that allegedly was used as a prison view with meadow 2179 Witness 3 T 7946 2180 Witness 3 T 7946 2181 Witness 3 T 7946 7950-7951 8016-8017 2182 Witness 3 T 7956-7957 2183 Witness 3 T 7951 2184 Witness 3 T 7951 8010 2185 Witness 3 T 8016-8017 2186 Witness 3 T 7949 8017 2187 Witness 3 T 7949-7950 8018 2188 Witness 3 T 7955 7957 2173 Case No IT-04-84-T 238 3 April 2008 forest 2189 He saw Kuqi trying to follow 2190 After this incident he never saw Kuqi again 2191 At least ten days later Witness 3 returned with Lahi Brahimaj to the KLA staff headquarters in Jablanica Jabllanicë 2192 Brahimaj asked the unidentified man whether it was Witness 3 to whom Skender Kuqi had promised DEM 10 000 to help him escape 2193 The man answered in the negative 2194 429 Rrustem Tetaj testified that in July 1998 Imer Jusaj told him that Skender Kuqi had been abducted by the KLA and was being held in Jablanica Jabllanicë in Đakovica Gjakovë municipality 2195 Tetaj contacted Faton Mehemetaj who told him that he needed to get in contact with Ramush Haradinaj 2196 He then met with Haradinaj who was unaware of the abduction and together they went to the local staff of the KLA in Jablanica Jabllanicë where they met with Nazmi Brahimaj 2197 Haradinaj told Brahimaj that Skender Kuqi should be released immediately since this was “damaging our cause” 2198 Brahimaj informed the two that Skender Kuqi had tried to escape and as a result soldiers had injured him slightly though he would be released as soon as he had recovered 2199 After three or four days the witness went back to Jablanica Jabllanicë together with a relative of Skender Kuqi and this time Nazmi Brahimaj told them that Skender Kuqi had been sent to the make-shift hospital in Rznić Irzniq in Dečani Deçan municipality 2200 He added that due to the lack of medical facilities they had not succeeded in saving his life and he had been buried near a forest in Jablanica Jabllanicë 2201 Tetaj then assisted in uncovering the grave at night in order to take the body back to the family 2202 The body had been buried without a coffin 2203 2189 Witness 3 T 7957-7959 8019-8020 P914 Photograph on which Witness 3 marked his escape route and Lahi Brahimaj’s room 2190 Witness 3 T 7957-7958 P914 Photograph on which Witness 3 marked his escape route and Lahi Brahimaj’s room 2191 Witness 3 T 7962 2192 Witness 3 T 7962 8015 8026-8028 2193 Witness 3 T 7962 2194 Witness 3 T 7947-7948 7962 2195 Rrustem Tetaj T 3680 3852-3853 2196 Rrustem Tetaj T 3680 2197 Rrustem Tetaj T 3680-3681 3686 3778 3852 P267 Photo of Jablanica Jabllanicë marked by Rrustem Tetaj 2198 Rrustem Tetaj T 3681-3682 3778 3852 2199 Rrustem Tetaj T 3682 2200 Rrustem Tetaj T 3682-3683 3779-3780 2201 Rrustem Tetaj T 3683 3686-3688 3779-3782 3853 P267 Photo of Jablanica Jabllanicë marked by Rrustem Tetaj 2202 Rrustem Tetaj T 3684 3853 2203 Rrustem Tetaj T 3836-3837 Case No IT-04-84-T 239 3 April 2008 Tetaj saw that the body was bruised but had no open wounds 2204 At a later meeting Nazmi Brahimaj returned a ring and some money that had belonged to Skender Kuqi to the witness to be given to Kuqi’s wife 2205 Skender Kuqi’s car was not returned as it had been damaged 2206 430 Sometime in June-August 1998 Haki Shehu who worked as a doctor in a military hospital in Rznić Irzniq in Dečani Deçan municipality treated Skender Kuqi as a patient 2207 Persons in military uniform who did not talk to anyone had left him at the door of the hospital 2208 Haki Shehu noticed that Skender Kuqi was bruised and that his face was a bit swollen 2209 Skender Kuqi died from total blockage of the kidneys 2210 431 Harjit Sandhu an investigator for the Prosecution 2211 testified that on 9 March 2004 Genc Kuqi led him and an OMPF team to a grave located in Dubovik cemetery Dečani Deçan municipality which Genc Kuqi indicated was the grave of his father Skender Kuqi 2212 Harjit Sandhu observed the OMPF team mark the grave “SSA 01” photograph it and its surroundings and exhume the mortal remains 2213 They placed the remains in a body bag labelled “SSA 01 01” and brought it with them when they left 2214 The Prosecution later received from OMPF two autopsy reports marked with the case number “SSA 001B” dated 12 April 2004 and December 2004 and various photos of the cemetery grave and exhumation 2215 The OMPF autopsy reports concluded that the mortal remains were those of an adult male between 40 and 60 years old around 176 centimetres tall having suffered multiple fractures before or after death and that the cause of death could not be established 2216 2204 Rrustem Tetaj T 3782 3845-3846 Rrustem Tetaj T 3854 2206 Rrustem Tetaj T 3854 2207 D59 Sworn and signed statement by Haki Shehu to UNMIK police dated 14 October 2002 2208 D59 Sworn and signed statement by Haki Shehu to UNMIK police dated 14 October 2002 2209 D59 Sworn and signed statement by Haki Shehu to UNMIK police dated 14 October 2002 2210 D59 Sworn and signed statement by Haki Shehu to UNMIK police dated 14 October 2002 2211 P1220 Harjit Sandhu witness statement 5 November 2007 paras 2-4 Harjit Sandhu T 10357 2212 P1220 Harjit Sandhu witness statement 5 November 2007 paras 5-9 11-12 Harjit Sandhu T 10360-10361 10364 2213 P1220 Harjit Sandhu witness statement 5 November 2007 paras 11 13 17 Harjit Sandhu T 10362-10363 10369 P1219 OMPF Photography and Photo Log for SSA 01 2214 P1220 Harjit Sandhu witness statement 5 November 2007 paras 13-14 Harjit Sandhu T 10363 10369 2215 P1220 Harjit Sandhu witness statement 5 November 2007 paras 15 17 Harjit Sandhu T 10363 P1218 Autopsy reports for the remains labelled SSA01-001B P1219 OMPF Photography and Photo Log for SSA 01 2216 Harjit Sandhu T 10371-10373 P1218 Autopsy reports for the remains labelled SSA01-001B 2205 Case No IT-04-84-T 240 3 April 2008 432 Cufë Krasniqi a KLA commander 2217 testified that on a certain day he spoke to Skender Kuqi’s brother Adem Kuqi 2218 Adem Kuqi told the witness that he was looking for his brother who had been captured by the KLA and who he believed to be in that area 2219 Cufë Krasniqi told Adem Kuqi that he had no information about his brother but that he could ask two of his soldiers to help him look for him 2220 After two weeks somebody in Čelopek Qallapek in Peć Pejë municipality told Cufë Krasniqi that Adem Kuqi had found his brother Skender but that he was dead 2221 433 As referred to above Qerim Kuqi testified that he last saw Skender Kuqi in July 1998 when armed men took him from his shop in Zahać Zahaq and drove away with him in his Mercedes car Witness 6 testified that sometime around the middle of July 1998 he saw a man arrive in the trunk of a Mercedes car at the Jablanica Jabllanicë compound and KLA soldiers beat him upon arrival According to Witness 6 Pal Krasniqi told him that this man was from Zahać Zahaq Witness 6 further testified that he later saw the man in a room at the compound in a bad physical condition lying on the floor his body swollen and his eyes closed Witness 3 testified that around early to mid-July 1998 he came to the Jablanica Jabllanicë compound where he spent a couple of days in a room with his former teacher Skender Kuqi and another man Witness 3 testified that Skender Kuqi had multiple injuries was moaning and crying in pain had trouble speaking and relieved himself in the room Witness 3 further testified that he saw a KLA soldier enter the room several times and beat Skender Kuqi and that a doctor eventually came to check on him Witness 6 stated that he saw the man trying to escape getting caught and then being beaten by KLA soldiers Witness 6 gave hearsay evidence that the man from Zahać Zahaq was sent for treatment to Glođane Gllogjan where he died Rrustem Tetaj gave hearsay evidence that Skender Kuqi was sent from the Jablanica Jabllanicë compound to a hospital in Rznić Irzniq where he died The Trial Chamber is satisfied that the evidence of Witness 6 refers to Skender Kuqi The Trial Chamber is also satisfied that KLA soldiers caused Skender Kuqi serious physical suffering and injury In light of the severity of the beatings which continued despite Skender Kuqi’s poor physical state the Trial Chamber is furthermore satisfied that the perpetrators must have intended to cause such suffering and injury For these reasons 2217 P351 Cufë Krasniqi witness statement 14 June 2007 p 1 paras 1-2 Cufë Krasniqi T 5722 2219 Cufë Krasniqi T 5722-5723 2220 Cufë Krasniqi T 5723-5724 2221 Cufë Krasniqi T 5724 5726 2218 Case No IT-04-84-T 241 3 April 2008 the Trial Chamber concludes that KLA soldiers committed cruel treatment against Skender Kuqi 434 According to Witness 17 Skender Kuqi’s name was on a list provided to him during a meeting on 12 July 1998 at Din Krasniqi’s home in Vranovac Vranoc The Trial Chamber discusses the significance of this list in section 7 below The Trial Chamber cannot draw from this evidence any conclusions as to the purpose of the beatings and finds that the alleged crime of torture against Skender Kuqi has not been proven beyond a reasonable doubt 435 The above-mentioned hearsay evidence that Skender Kuqi was sent to a hospital in Rznić Irzniq and died there is consistent with Dr Haki Shehu’s statement to the UNMIK police That statement suggests that Skender Kuqi was dumped at the entrance of the hospital by military men who did not pause to talk to anyone at the hospital The doctor found bruises on Skender Kuqi’s body and stated that he died from a total blockage of the kidneys There is no evidence before the Trial Chamber indicating that Skender Kuqi had a prior history of kidney problems Rrustem Tetaj testified that he was present at an exhumation of Skender Kuqi’s body on which he too observed bruises Harjit Sandhu testified that in 2004 Genc Kuqi pointed out the grave of his father Skender Kuqi The OMPF autopsy reports concluded that the body had suffered multiple fractures On the basis of this evidence the Trial Chamber is convinced that the conditions to which Skender Kuqi was exposed while in KLA custody including the severe beatings and the lack of timely care for a man in a visibly poor condition caused his death Finally it is convinced that these acts and omissions were committed with the intent to wilfully cause serious bodily harm which the perpetrator should reasonably have known might lead to death The Trial Chamber therefore concludes that Skender Kuqi was murdered in KLA custody 436 The Trial Chamber is furthermore convinced that these crimes were closely related to the armed conflict in Kosovo Kosova and that Skender Kuqi was not taking active part in hostilities at the time the crimes were committed and that the perpetrators knew or should have known that this was the case 437 All three Accused are charged with Count 32 as participants in a joint criminal enterprise The Trial Chamber will deal with this mode of liability in section 7 below Ramush Haradinaj is charged in the alternative with aiding and abetting the commission of the murder cruel treatment and torture of Skender Kuqi The Trial Case No IT-04-84-T 242 3 April 2008 Chamber has received evidence that Ramush Haradinaj was unaware that Skender Kuqi was at the Jablanica Jabllanicë compound until learning it from Rrustem Tetaj after which he requested that Skender Kuqi be released Based on the evidence the Trial Chamber cannot conclude that Ramush Haradinaj aided and abetted the abovementioned crimes and finds that he should be acquitted of aiding and abetting the cruel treatment torture and murder of Skender Kuqi 6 17 3 Cruel treatment and torture of Witness 3 and two other men 438 All three Accused are charged as participants in a joint criminal enterprise with the cruel treatment torture and murder of Witness 3 and two other men in violation of the laws or customs of war In the alternative Idriz Balaj and Lahi Brahimaj are charged with the commission of or planning instigating or aiding and abetting the commission of the crimes against Witness 3 Ramush Haradinaj is charged in the alternative with aiding and abetting the commission of the crimes against Witness 3 The Trial Chamber has heard relevant evidence from a number of witnesses 439 Witness 3 testified that on 21 May 1998 he withdrew with four or five other persons from Grabanica Grabanicë in Klina Klinë municipality after their failed attempt to defend the village against Serbian forces 2222 Somewhere between Bokšić Bokshiq and Glođane Gllogjan both in Peć Pejë municipality they encountered Lahi Brahimaj and Alush Agushi a k a “Mal” or “Pip” the latter from Drenovac Drenoc in Klina Klinë municipality 2223 Witness 3 had met Lahi Brahimaj many times before and knew him well 2224 Brahimaj and Agushi angrily accused the group of being traitors for leaving their positions 2225 Witness 3 continued to Glođane Gllogjan where villagers told him that they were under orders from Lahi Brahimaj not to give any help to those retreating from Grabanica Grabanicë 2226 Witness 3 then went to Jablanica Jabllanicë in Đakovica Gjakovë municipality 2227 After approximately one week Witness 3 left Jablanica Jabllanicë because he had heard from the villagers at whose house he had been staying that the local KLA staff were 2222 Witness 3 T 7916 7922 7993 Witness 3 T 7922-7924 7991-7992 2224 Witness 3 T 7895 7924 7976-7977 2225 Witness 3 T 7923-7924 7989 7991 2226 Witness 3 T 7924-7925 7928 7989 7992-7993 2227 Witness 3 T 7928 7993 8006 2223 Case No IT-04-84-T 243 3 April 2008 looking for those who had abandoned Grabanica Grabanicë in order to return them there and that they required those who sheltered them to hand them over to the staff 2228 440 Around early-to-mid-July 1998 Witness 3 was in the house of Tal Zeka in Zabelj Zhabel in Đakovica Gjakovë municipality when Lahi Brahimaj came looking for him 2229 Brahimaj told Witness 3 that he had to go with him and drove away with the witness in a Mercedes car 2230 The car had “KLA” written on it and an eagle painted on it villagers of Jablanica Jabllanicë told Witness 3 that it belonged to Skender Kuqi 2231 Brahimaj took Witness 3 to a room in the KLA staff building in Jablanica Jabllanicë and then left 2232 A few minutes later several persons entered the room and beat Witness 3 with baseball bats until he lost consciousness 2233 Witness 3 was able to see only one of them who wore a uniform 2234 Witness 3 remained detained in that room for the next two nights and three days 2235 There were two other persons detained in the room 2236 At night all three detainees had their hands tied 2237 441 Witness 3 once saw Nazmi Brahimaj and Miftar Brahimaj when they came to the room where he was detained 2238 He also saw Naser “Rusi” Brahimaj whom he had known for a long time enter the room repeatedly to beat the other two detainees 2239 At one point Lahi Brahimaj led Witness 3 to the room next door which was Brahimaj’s room 2240 Apart from Brahimaj there was another man and two women present in the room all four of them in black uniform 2241 The two men had “PU” military police insignia on their sleeves 2242 Brahimaj interrogated Witness 3 and accused him of supporting the Serbian police and withholding an automatic weapon 2243 Brahimaj told the women to “practice” on Witness 3 and they beat him on his hands for 5 to 10 2228 Witness 3 T 7929-7930 7933-7937 7993 8006 Witness 3 T 7937-7938 7942-7943 8008 2230 Witness 3 T 7943-7944 2231 Witness 3 T 7944 8029 2232 Witness 3 T 7943 7945 D118 Photograph of a shack in Jablanica Jabllanicë that allegedly was used as a prison view with meadow 2233 Witness 3 T 7943 7945-7946 7948 8009 2234 Witness 3 T 7946 2235 Witness 3 T 7945 7948 8009-8010 2236 Witness 3 T 7946 2237 Witness 3 T 7951 8010 2238 Witness 3 T 7949 8017 2239 Witness 3 T 7949-7950 8018 2240 Witness 3 T 7951 7958 P914 Photograph on which Witness 3 marked his escape route and Lahi Brahimaj’s room 2241 Witness 3 T 7952 2242 Witness 3 T 8020 2243 Witness 3 T 7952-7953 2229 Case No IT-04-84-T 244 3 April 2008 minutes with a telescope 2244 Brahimaj handed his revolver to Witness 3 and told him to kill himself 2245 Witness 3 took the revolver and laughed after which one of the women took it off him and returned it to Brahimaj 2246 The other man in the room accused Witness 3 of collaborating with the Serbs and threatened to cut his throat 2247 Someone brought Witness 3 back to his room 2248 The witness decided to escape and told his two co-detainees that they should follow him if they wished 2249 Around mid-day Witness 3 escaped through the window heard shots being fired and managed to reach a forest 2250 442 Witness 3 wandered from village to village though people were afraid to help him because they had heard that he was a wanted fugitive 2251 He returned to Jablanica Jabllanicë where he stayed for approximately 10 to 12 days 2252 He thought it was safe to return to Jablanica Jabllanicë because a Kalashnikov rifle he had taken from a badly wounded fellow fighter during the battle of Grabanica Grabanicë was returned to the rightful owner so he felt he was no longer in danger 2253 He thought that the unreturned rifle might have been the reason for his earlier treatment 2254 He encountered Lahi Brahimaj who led him at gunpoint to his house where a woman joined them and then to a Mercedes car 2255 Both Lahi Brahimaj and the woman slapped Witness 3 in the face a few times 2256 They drove to the KLA staff headquarters and again saw the man unknown to him who had been held in the same room as the witness 2257 Brahimaj asked this man whether it was Witness 3 that Skender Kuqi had promised DEM 10 000 to help him escape 2258 The man answered in the negative 2259 Brahimaj Witness 3 and the woman then returned to the car which Brahimaj drove with Witness 3 sitting next to him and the woman holding a gun to the back of the witness’s head 2260 At one point 2244 Witness 3 T 7953-7954 Witness 3 T 7954 2246 Witness 3 T 7954-7955 2247 Witness 3 T 7955-7956 2248 Witness 3 T 7955 2249 Witness 3 T 7955 7957 2250 Witness 3 T 7957-7959 8019-8020 P914 Photograph on which Witness 3 marked his escape route and Lahi Brahimaj’s room 2251 Witness 3 T 7957 7959-7960 8010-8011 8016 2252 Witness 3 T 7960 7968 8012 8015-8016 8026 2253 Witness 3 T 8003-8005 8012 2254 Witness 3 T 8012 2255 Witness 3 T 7944-7945 7961-7962 8027 2256 Witness 3 T 7962 2257 Witness 3 T 7962 8026-8028 2258 Witness 3 T 7962 2259 Witness 3 T 7947-7948 7962 2260 Witness 3 T 7962 2245 Case No IT-04-84-T 245 3 April 2008 Brahimaj stopped the car and put Witness 3 in the trunk 2261 Later he stopped the car again opened the trunk pulled out his gun and asked Witness 3 if he should pull the trigger Witness 3 answered yes Lahi fired and Witness 3 saw a flame coming out of the gun heard a click and felt pain but then realized that he had not been shot 2262 Brahimaj shut the boot and drove on 2263 At around 6 or 7 p m they arrived in Glođane Gllogjan in Dečani Deçan municipality 2264 Brahimaj took Witness 3 to a house and left 2265 A man offered food to Witness 3 asked whether he had any relatives in Glođane Gllogjan to spend the night with and then offered him a place to sleep in the house 2266 At approximately 11 p m the man told him that he was free to go after which Miftar and Jablanica Jabllanicë Naser 2267 Brahimaj came and took Witness 3 back to Witness 3 heard a soldier refer to the man at the house in Glođane Gllogjan as a commander 2268 443 Witness 6 testified that one day around the middle of July 1998 the day after the arrival at Jablanica Jabllanicë of a man from Zahać Zahaq and only two to three hours after the arrival of Pal Krasniqi see section 6 17 1 above a third man from Grabanica Grabanicë in Klina Klinë municipality arrived as well 2269 Witness 6 took food and water to his room 2270 Witness 6 testified that the man from Grabanica Grabanicë was not beaten 2271 On the same day at around 1 p m the man from Grabanica Grabanicë managed to escape through the window in his room while the man from Zahać Zahaq and Pal Krasniqi were caught trying to do the same 2272 444 Pekka Haverinen a Finnish police officer who worked as an ICTY investigator from June 2002 to March 2005 2273 testified that he showed seven photo boards to Witness 3 during an interview in May 2004 2274 Witness 3 recognized Lahi Brahimaj 2261 Witness 3 T 7962-7963 Witness 3 T 7963 8029 2263 Witness 3 T 7963 2264 Witness 3 T 7963-7964 2265 Witness 3 T 7964 2266 Witness 3 T 7964-7965 2267 Witness 3 T 7964 7966-7967 2268 Witness 3 T 7966-7967 2269 Witness 6 T 5206 5233 5247-5249 5252-5255 5293 5297-5298 5331-5332 5334-5335 5386 5388-5389 5391 2270 Witness 6 T 5204-5205 5332-5333 5335-5337 P332 Photo of Jablanica Jabllanicë compound 2271 Witness 6 T 5235 5237 5336 2272 Witness 6 T 5236-5238 5338-5339 5389-5390 2273 P375 Pekka Haverinen witness statement 26 June 2007 para 1 Pekka Haverinen T 6299-6300 2274 P375 Pekka Haverinen witness statement 26 June 2007 para 28 31 2262 Case No IT-04-84-T 246 3 April 2008 and Ramush Haradinaj in the photo boards 2275 Witness 3 marked the numbers indicating Haradinaj’s and Brahimaj’s pictures and signed the photo boards 2276 445 As referred to above Witness 3 testified that around early to mid-July 1998 Lahi Brahimaj brought him to a room in the Jablanica Jabllanicë compound and then left Witness 3 further testified that a few minutes later several persons of whom at least one wore a uniform entered the room and beat Witness 3 with baseball bats until he lost consciousness Based on the evidence adduced under Counts 27-32 and the ability of these persons to gain access at that time to that room at the Jablanica Jabllanicë compound the Trial Chamber is satisfied that they were KLA soldiers or persons affiliated with the KLA Witness 6 who was at the same compound at the same time testified that a man from Grabanica Grabanicë arrived and that he was the only person out of three to escape This evidence is consistent with Witness 3’s account of what happened to him The Trial Chamber is therefore satisfied that Witness 6’s evidence refers to Witness 3 However Witness 6 also testified that Witness 3 was not beaten which appears to contradict the evidence of Witness 3 The Trial Chamber considers both Witness 3 and Witness 6 to be credible witnesses Witness 6 appears to have had little if any direct contact with Witness 3 The evidence does not indicate that Witness 6 saw the initial beating of Witness 3 or that he entered his room when bringing food and water It is furthermore not clear that Witness 6 saw Witness 3 as he escaped from his room The Trial Chamber therefore considers that Witness 6 was not in a position to ascertain whether or not Witness 3 was beaten and interprets his evidence to mean that he was not aware of Witness 3 being beaten Consequently the Trial Chamber adopts the evidence of Witness 3 on this matter 446 Witness 3 testified that he spent the next two nights and three days in the same room He further testified that on one occasion Lahi Brahimaj led him to another room in which there were two women and a man all in black uniform According to Witness 3 Lahi Brahimaj interrogated him and accused him of supporting the Serbian police and withholding an automatic weapon Witness 3 further testified that Lahi Brahimaj told the women to “practice” on Witness 3 after which they beat Witness 3 on his hands for 2275 P375 Pekka Haverinen witness statement 26 June 2007 paras 34 38 Annex 16 Pekka Haverinen T 6301 2276 P375 Pekka Haverinen witness statement 26 June 2007 paras 34 38 Annex 21 Pekka Haverinen T 6301 Case No IT-04-84-T 247 3 April 2008 5 to 10 minutes with instruments Finally Witness 3 testified that the other man in the room accused him of collaborating with the Serbs and threatened to cut his throat 447 On the basis of this evidence the Trial Chamber is satisfied that the beatings caused Witness 3 serious physical suffering and that the perpetrators intended to cause such suffering The Trial Chamber is also convinced that the beatings of Witness 3 were aimed at punishing him for withholding a weapon and discriminating against him on the basis of his perceived ties to Serbs For these reasons the Trial Chamber concludes that KLA soldiers or persons affiliated with the KLA committed cruel treatment and torture against Witness 3 448 The Trial Chamber is furthermore convinced that these crimes were closely related to the armed conflict in Kosovo Kosova and that Witness 3 was not taking active part in hostilities at the time the crimes were committed and that the perpetrators knew or should have known that this was the case 449 Witness 3 testified that at least ten days after he escaped from the Jablanica Jabllanicë compound Lahi Brahimaj found him again and together with a woman drove him at gun-point back to the compound and then to Glođane Gllogjan According to Witness 3 sometime after they left Jablanica Jabllanicë Lahi Brahimaj put him in the trunk of the car drove on stopped the car took him out of the trunk and fired his gun giving Witness 3 the impression that he was being executed The Trial Chamber is satisfied that Witness 3 recognized Lahi Brahimaj whom he knew well On the basis of this evidence the Trial Chamber is also satisfied that Lahi Brahimaj caused serious mental suffering to Witness 3 and intended to do so Consequently the Trial Chamber finds that the alleged crime of cruel treatment has been proven beyond a reasonable doubt On the basis of the evidence the Trial Chamber is not able to identify any purpose relevant to establish that this cruel treatment amounted to torture Consequently the Trial Chamber finds that the alleged crime of torture has not been proven beyond a reasonable doubt 450 All three Accused are charged with Count 32 as participants in a joint criminal enterprise The Trial Chamber will deal with this mode of liability in section 7 below All three Accused are also charged in the alternative with other modes of liability for the crimes against Witness 3 The Trial Chamber has heard no evidence about the alleged involvement of Idriz Balaj in the crimes committed against Witness 3 The Trial Chamber therefore concludes that he should be acquitted of this charge Ramush Case No IT-04-84-T 248 3 April 2008 Haradinaj is charged in the alternative with aiding and abetting the crimes against Witness 3 alleged in this Count Even assuming that the commander in Glođane Gllogjan about whom Witness 3 testified was Ramush Haradinaj Witness 3 testified that Ramush Haradinaj treated him well and allowed him to leave after a few hours Based on the evidence the Trial Chamber cannot conclude that Ramush Haradinaj aided and abetted the commission of the above-mentioned crimes and finds that he should be acquitted of aiding and abetting the commission of the cruel treatment and torture of Witness 3 451 Lahi Brahimaj is charged in the alternative with committing planning instigating or aiding and abetting the commission of the crimes against Witness 3 charged in Count 32 The evidence on the beatings and the interrogation establishes as recalled above that Lahi Brahimaj brought Witness 3 to a room in the Jablanica Jabllanicë compound KLA soldiers or persons affiliated with the KLA shortly afterwards arrived in that room with baseball bats and beat Witness 3 The evidence also establishes that Witness 3 was held in the same room until Lahi Brahimaj took him to another room and interrogated Witness 3 while others beat him The Trial Chamber finds that Lahi Brahimaj’s role in the interrogation establishes his intent upon Witness 3’s arrival at the Jablanica Jabllanicë compound to inflict serious physical suffering on Witness 3 for the purposes of punishing him for withholding a weapon and discriminating against him on the basis of his perceived ties to Serbs For these reasons the Trial Chamber is convinced beyond a reasonable doubt that Lahi Brahimaj committed the above-mentioned cruel treatment and torture under Count 32 Consequently the Trial Chamber does not need to address whether Lahi Brahimaj planned instigated or aided and abetted the commission of these crimes In addition the Trial Chamber has found that Lahi Brahimaj personally placed Witness 3 in the trunk of a car and carried out his mock execution and concludes that Lahi Brahimaj should be convicted for committing this cruel treatment of Witness 3 Consequently the Trial Chamber does not need to address whether Lahi Brahimaj planned instigated or aided and abetted the commission of this crime 452 Paragraph 104 of the Indictment alleges that KLA soldiers beat “two unknown prisoners” In light of the evidence adduced under Count 32 this could be an obscure reference to Pal Krasniqi and Skender Kuqi who have been dealt with above in sections 6 17 1 and 6 17 2 respectively If instead the “two unknown prisoners” are persons Case No IT-04-84-T 249 3 April 2008 other than Pal Krasniqi and Skender Kuqi the Trial Chamber finds that no evidence has been adduced to support the allegation that they were present or beaten and that consequently all three Accused should be acquitted of all charges concerning these two alleged prisoners 6 18 Cruel treatment and torture of Naser Lika and others Count 34 453 All three Accused are charged as participants in a joint criminal enterprise with the cruel treatment and torture of Naser Lika and others with regard to instances in May and July 1998 in violation of the laws or customs of war In the alternative Idriz Balaj and Lahi Brahimaj are charged with the commission planning or aiding and abetting of the commission of the crimes Ramush Haradinaj is charged with the ordering instigating or aiding and abetting of the commission of the crimes The Trial Chamber has heard relevant evidence from Fadil Fazliu Witness 3 and Witness 6 As explained in section 2 2 above the Trial Chamber has not heard the testimony of Naser Lika 454 Fadil Fazliu from Grabanica Grabanicë in Klina Klinë municipality 2277 testified that he fled the village with fellow villager Naser Lika in the evening of 20 May 1998 after the end of a Serbian attack that had begun the previous evening 2278 Fadil Fazliu and Naser Lika arrived at the house of Tal Zeka in Žabelj Zhabel in Đakovica Gjakovë municipality around 10 or 11 p m 2279 On the evening of 22 May 1998 a group of 7-8 KLA soldiers arrived at Tal Zeka’s house 2280 According to Fadil Fazliu these men including Nazmi Brahimaj and a person referred to as Tahir the commander of Žabelj Zhabel first came to speak to those present and sound out their readiness to return to Grabanica Grabanicë and fight against the Serbs 2281 A man called Ujku or ‘the wolf’ was also present and he was the only KLA soldier who was offensive to Fadil Fazliu and Naser Lika 2282 The next day 23 May 1998 Ujku returned with Arbnor Zeneli and again began to insult those present 2283 Tahir and Arbnor Zeneli rebuked 2277 Fadil Fazliu T 7397 D155 Fadil Fazliu defence witness statement 15 June 2006 p 1 Fadil Fazliu T 7413-7415 7460-7461 D155 Fadil Fazliu defence witness statement 15 June 2006 pp 3-4 2279 Fadil Fazliu T 7417-7418 7423 D155 Fadil Fazliu defence witness statement 15 June 2006 p 4 2280 Fadil Fazliu T 7423 D155 Fadil Fazliu defence witness statement 15 June 2006 p 4 2281 Fadil Fazliu T 7423-7425 7427-7430 D155 Fadil Fazliu defence witness statement 15 June 2006 pp 4-5 2282 Fadil Fazliu T 7429 7464-7465 D155 Fadil Fazliu defence witness statement 15 June 2006 pp 4-6 2283 Fadil Fazliu T 7430-7431 D155 Fadil Fazliu defence witness statement 15 June 2006 pp 5-6 2278 Case No IT-04-84-T 250 3 April 2008 Ujku for his conduct towards the men 2284 Arbnor Zeneli then told those present that they should all go to Jablanica Jabllanicë in Đakovica Gjakovë municipality to discuss mobilisation 2285 After this Fadil Fazliu and Naser Lika along with two other persons from their village Fadil Selmani and Ali Berisha set off for Jablanica Jabllanicë with Tahir and some other soldiers 2286 Fadil Fazliu testified that he went of his own free will and was not forced 2287 They arrived in Jablanica Jabllanicë on the afternoon of what may have been 24 May 1998 2288 The men went into the courtyard of the KLA headquarters in Jablanica Jabllanicë 2289 After being offered food Fadil Fazliu Naser Lika and between ten and fifteen others discussed with Lahi and Nazmi Brahimaj the issue of mobilisation and preparations to Counter the Serbian forces 2290 It was finally concluded that not enough weapons could be obtained after which Fadil Fazliu Naser Lika and the others left the courtyard and found Arbnor Zeneli outside the gates of the headquarters waiting to take them wherever they wanted to go 2291 Arbnor Zeneli drove Fadil Fazliu and Naser Lika to the house of Haxhi Bajrami where Fadil Fazliu and Naser Lika parted company 2292 Fadil Fazliu testified that he had been in the company of Naser Lika from the moment they fled Grabanica Grabanicë until their arrival at Haxhi Bajrami’s house 2293 Fadil Fazliu stated that he never saw anyone being illtreated at the Jablanica Jabllanicë headquarters 2294 Fadil Fazliu testified that he was certain that Ramush Haradinaj was not present at the Jablanica Jabllanicë headquarters although he added he would not have recognized him since he did not know him at the time 2295 455 Witness 3 testified that he knew Naser Lika and Fadil Fazliu 2296 At the end of May 1998 Witness 3 was with them in the house of Tal Zeka in Žabelj Zhabel in Đakovica Gjakovë municipality 2297 He testified that “Ujku” Tahir Qorri and a third 2284 Fadil Fazliu T 7431 7464-7465 D155 Fadil Fazliu defence witness statement 15 June 2006 p 5 Fadil Fazliu T 7430-7432 D155 Fadil Fazliu defence witness statement 15 June 2006 pp 5-6 2286 Fadil Fazliu T 7431-7432 D155 Fadil Fazliu defence witness statement 15 June 2006 p 6 2287 Fadil Fazliu T 7435 7466-7467 D155 Fadil Fazliu defence witness statement 15 June 2006 p 6 2288 Fadil Fazliu T 7439 D155 Fadil Fazliu defence witness statement 15 June 2006 p 6 2289 Fadil Fazliu T 7439-7440 D155 Fadil Fazliu defence witness statement 15 June 2006 p 6 2290 Fadil Fazliu T 7439-7443 D155 Fadil Fazliu defence witness statement 15 June 2006 pp 6-7 2291 Fadil Fazliu T 7440 7442-7443 7469 D155 Fadil Fazliu defence witness statement 15 June 2006 pp 7-8 2292 Fadil Fazliu T 7443 7470-7471 D155 Fadil Fazliu defence witness statement 15 June 2006 p 8 2293 Fadil Fazliu T 7471-7472 D155 Fadil Fazliu defence witness statement 15 June 2006 p 7 2294 Fadil Fazliu T 7472-7475 D155 Fadil Fazliu defence witness statement 15 June 2006 p 8 2295 Fadil Fazliu T 7476 D155 Fadil Fazliu defence witness statement 15 June 2006 p 7 2296 Witness 3 T 7930-7931 7978-7981 2297 Witness 3 T 7931 7933-7934 7937-7938 7993 8033 2285 Case No IT-04-84-T 251 3 April 2008 person who might have been Sadri Berisha came to the house 2298 Witness 3 saw the three men leading Naser Lika and Fadil Fazliu down the stairs by force kicking and beating them while Ujku called them traitors 2299 All three men were armed and wore uniforms Ujku wore a black uniform and the two others wore camouflage uniforms 2300 Witness 3 believed them to be members of the KLA 2301 Witness 3 testified that he had seen Ujku several times before that he had heard villagers of Jablanica Jabllanicë call him by that name and that he had heard from them that Ujku was a member of the KLA military police 2302 A few weeks later Witness 3 met Naser Lika again who told him that the men had taken him to Jablanica Jabllanicë and beat him 2303 456 Witness 6 testified that he was detained at Jablanica Jabllanicë between 13 June and 25 July 1998 2304 He testified that he did not know a person named Naser Lika did not recognize him when shown a photograph of him by an investigator of the Tribunal and had never seen the man at Jablanica Jabllanicë or elsewhere 2305 457 As referred to above the Trial Chamber has heard evidence that in May 1998 Naser Lika and Fadil Fazliu left the house of Tal Zeka in Žabelj Zhabel along with some KLA soldiers and went to Jablanica Jabllanicë Witness 3 testified that he saw the two men being forced down the stairs in Tal Zeka’s house while being kicked beaten and called traitors by men he believed to be in the KLA He also testified that a few weeks later Naser Lika told him that the men had taken him to Jablanica Jabllanicë where they beat him The totality of the evidence points to Naser Lika and Fadil Fazliu being present both at Tal Zeka’s house in Žabelj Zhabel and in Jablanica Jabllanicë However Fadil Fazliu’s evidence contradicts Witness 3’s to the extent that while Fadil Fazliu confirms that the two men did go to Jablanica Jabllanicë in the company of KLA soldiers he states that they went voluntarily and were at no point ill-treated or detained Therefore the evidence before the Trial Chamber does not allow for a conclusion beyond a reasonable doubt that in May 1998 Naser Lika and Fadil Fazliu were subjected to cruel treatment and torture 2298 Witness 3 T 7935 7938-7939 8007-8008 Witness 3 T 7935 7938 7940 8007 8032-8033 2300 Witness 3 T 7940 2301 Witness 3 T 7939-7940 2302 Witness 3 T 7938-7939 2303 Witness 3 T 7940-7942 2304 Witness 6 T 5206 5252-5255 5293 5297-5298 5386 2305 Witness 6 T 5368 5381-5382 5392-5394 2299 Case No IT-04-84-T 252 3 April 2008 458 The Chamber has heard no evidence about the incidents of July 1998 alleged in paragraph 108 under Counts 33 and 34 of the Indictment and no evidence about the alleged acts of the Accused in relation to these events as alternatively charged For these reasons the Trial Chamber concludes that all three Accused should be acquitted of this count 6 19 Rape of Witness 61 and cruel treatment and torture of Witness 1 and Witness 61 Counts 36 and 37 459 All three Accused are charged as participants in a joint criminal enterprise with the rape cruel treatment and torture of Witness 61 and the cruel treatment and torture of Witness 1 in violation of the laws or customs of war In the alternative Idriz Balaj is charged with the commission or planning of the commission of the crimes The Trial Chamber has heard relevant evidence from Witness 61 Witness 1 Witness 56 and Roel Versonnen 460 Witness 61 a Roma woman from Deçan Dečani municipality 2306 testified that one day in the summer of 1998 around midnight a man whom the witness called “Toger” and four other men all armed and in black uniforms with insignia on their upper arms came to the witness’s house 2307 She could not describe the soldiers because it was dark 2308 The men asked the witness’s father-in-law where his son was saying that they needed to ask him about something 2309 The men then tied the hands of the witness’s husband behind his back and took him and the witness on foot to a onestorey house in Rznić Irzniq in Deçan Dečani municipality 2310 The house was commonly referred to as the “KLA headquarters” and was located near the road leading to Glođane Gllogjan 2311 Witness 1 was taken to a well near the house by two men 2312 Two other persons took Witness 61 to the house 2313 The witness was directly taken to a room with a table some chairs a TV and a bed 2314 There was no one in the room 2306 Witness 61 T 3970-3972 4028-4029 Witness 61 T 3977-3985 3987-3988 4014-4015 4032 2308 Witness 61 4043 2309 Witness 61 T 3982 3984 2310 Witness 61 T 3988 3990-3991 4016-4017 4032-4033 2311 Witness 61 T 3988 4003 4016-4022 P269 Photograph of Rznić Irzniq marked by Witness 61 2312 Witness 61 T 3991 4005-4007 2313 Witness 61 T 4006 2314 Witness 61 T 3991-3992 4034 2307 Case No IT-04-84-T 253 3 April 2008 except “Toger” and the witness 2315 One of the soldiers that had taken Witness 61 from her home stayed at the door but “Toger” told the soldier to leave adding that he would call him back if he needed him 2316 The lights were on and the witness could clearly see the face of “Toger” 2317 “Toger” had a knife and a pistol which he put on the table 2318 He asked a guard to bring him a wooden stick which was also put on the table 2319 At the table “Toger” interrogated the witness for approximately half an hour asking her whether her husband had collaborated with the Serbian police 2320 Following the interrogation “Toger” told the witness to go to the bed and undress herself 2321 He switched off the lights but the television remained lit he came to the bed and took off his clothes 2322 “Toger” then raped the witness several times over the course of approximately one-and-a-half hours 2323 The witness was afraid that he would kill her 2324 “Toger” told the witness not to tell her husband what had happened 2325 After the witness got dressed “Toger” told her to leave 2326 Around 3 a m the witness went home with her husband 2327 The husband told the witness that he had been put in a well with water up to his waist and the lid closed and kept there until they were both released 2328 Witness 61 did not see Witness 1 in the well herself 2329 Witness 61 testified that Witness 1’s clothes were wet from the waist down and that he changed clothes when they arrived home 2330 When the witness came home she told her husband and her relatives who were present what had happened 2331 At approximately 5 a m the witness’s husband and father-in-law went to the KLA headquarters and reported the incident 2332 Later three persons came to the witness’s house and asked her what had happened 2333 One of them was in KLA uniform the others in plain clothes 2334 The 2315 Witness 61 T 3991 Witness 61 T 3991 4041 2317 Witness 61 T 3991 3993 4034 4036-4037 2318 Witness 61 T 3992-3993 2319 Witness 61 T 3993 2320 Witness 61 T 3991-3992 4034 2321 Witness 61 T 3993 2322 Witness 61 T 3993-3994 4044-4045 4047 2323 Witness 61 T 3994-3996 2324 Witness 61 T 3993-3996 2325 Witness 61 T 3996 2326 Witness 61 T 3996 2327 Witness 61 T 3996 4008 4045 2328 Witness 61 T 4005-4007 2329 Witness 61 T 4005-4007 2330 Witness 61 T 4007 2331 Witness 61 T 3996 4046 2332 Witness 61 T 3997 4007-4008 2333 Witness 61 T 3997-3998 2334 Witness 61 T 3998 2316 Case No IT-04-84-T 254 3 April 2008 witness stated that one of them was named Shemsedin Ceku 2335 The witness told them what had happened to her they left and then returned and told the witness that they had spoken with Toger who first denied the accusation but later admitted to them what he had done to her 2336 About two weeks after this incident the witness and her family left their village because of heavy fighting between KLA and Serbian forces 2337 The witness did not have prior knowledge of the man she called “Toger” or his real name 2338 The witness’s husband told her after the incident that he had recognized the man who had come to their house and taken them away and that his name was “Toger” 2339 He was also referred to as “Toger” by the four men accompanying him to the house of the witness 2340 The witness described him as an Albanian-speaking man in his early twenties with black hair slightly taller than the witness who measured 1 58 metres 2341 Idriz Balaj measured 1 78 metres 2342 Witness 61 testified that “Toger” had some small bumps or pimples on his cheeks and chin possibly due to shaving but the witness did not note anything special on his throat or neck 2343 Witness 61 saw “Toger” at least once after the incidence 2344 He was driving a black jeep 2345 The witness was shown a photo board containing eight photographs including a photograph of the Idriz Balaj but she did not recognize him 2346 When the witness saw the Accused Idriz Balaj on television after he had been arrested and brought to The Hague she thought that he did not look like “Toger” and that Idriz Balaj looked older 2347 The witness also stated that she would not be able to recognize “Toger” today 2348 461 Witness 1 from Dečani Deçan municipality stated that one day in early August 1998 around midnight “Toger” and four other men forcibly entered the witness’s house 2349 The men were armed and all wore black uniforms bearing KLA insignia on 2335 Witness 61 T 4050 Witness 61 T 3997-3999 2337 Witness 61 T 3999 4006 2338 Witness 61 T 3981-3982 4000-4001 4005 2339 Witness 61 T 3981-3982 4003 4005 2340 Witness 61 T 4001 2341 Witness 61 T 4000 4061 4063 2342 T 10519-10520 2343 Witness 61 T 4002-4003 4044 4047 2344 Witness 61 T 3999 4050 2345 Witness 61 T 3999 4050 2346 Witness 61 T 4048-4049 2347 Witness 61 T 4050-4051 2348 Witness 61 T 4000 2349 P1250 Witness 1 witness statement 24 August 2002 pp 1-3 P1251 Witness 1 witness statement 16 October 2002 p 4 2336 Case No IT-04-84-T 255 3 April 2008 their sleeves and breast pockets 2350 Two of the men wore masks 2351 “Toger” ordered Witness 1 and Witness 61 to come with them 2352 The men tied Witness 1’s hands behind his back and took Witness 1 and Witness 61 by foot to the local KLA headquarters in Rznić Irzniq 2353 The KLA headquarters were located in a one story house that belonged to the local school 2354 The house consisted of two or three rooms 2355 Upon arrival at the headquarters “Toger” took Witness 61 inside the house and the two men wearing masks threw Witness 1 into a well in front of the house 2356 According to the witness he stood up to his neck in the water 2357 Around 4 00 a m Witness 1 and Witness 61 were released and they went home 2358 On the way home Witness 61 was crying and told Witness 1 that “Toger” had done something to her while they were inside the house 2359 When they had arrived home Witness 61 told Witness 1 that “Toger” had raped her 2360 Around 5 00 a m that same day the witness went to the local KLA commander Shemsedin Cekaj and told him what had happened 2361 The witness testified that Cekaj consequently called a high ranking KLA officer to complain about the things that had happened to Witness 1 and Witness 61 2362 The next day Cekaj and this KLA officer came to collect the witness at his house and took him to the KLA headquarters in Rznić Irzniq 2363 There Witness 1 told Ramush Haradinaj what had happened to him and Witness 61 2364 Ramush Haradinaj said it was impossible that “Toger” would do such a thing and Witness 1 was denounced as a liar 2365 The witness also testified that he told Witness 56 what had happened on the day after the 2350 P1250 Witness 1 witness statement 24 August 2002 p 3 P1250 Witness 1 witness statement 24 August 2002 p 3 2352 P1250 Witness 1 witness statement 24 August 2002 p 3 2353 P1250 Witness 1 witness statement 24 August 2002 p 3 2354 P1250 Witness 1 witness statement 24 August 2002 p 3 2355 P1250 Witness 1 witness statement 24 August 2002 p 3 2356 P1250 Witness 1 witness statement 24 August 2002 p 3 P1253 Witness 1 witness statement 11 August 2006 para 7 2357 P1250 Witness 1 witness statement 24 August 2002 p 3 2358 P1250 Witness 1 witness statement 24 August 2002 p 5 2359 P1250 Witness 1 witness statement 24 August 2002 p 3 P1252 Witness 1 witness statement 28 May 2006 para 38 2360 P1251 Witness 1 witness statement 16 October 2002 p 4 P1252 Witness 1 witness statement 28 May 2006 para 38 2361 P1250 Witness 1 witness statement 24 August 2002 pp 3 5 P1251 Witness 1 witness statement 16 October 2002 p 3 2362 P1250 Witness 1 witness statement 24 August 2002 p 5 P1251 Witness 1 witness statement 16 October 2002 p 3 2363 P1251 Witness 1 witness statement 16 October 2002 p 3 2364 P1251 Witness 1 witness statement 16 October 2002 p 3 2365 P1251 Witness 1 witness statement 16 October 2002 p 3 2351 Case No IT-04-84-T 256 3 April 2008 incident 2366 Around 31 August 1998 Witness 1 and his relatives left their village 2367 Shemsedin Cekaj testified that he was not aware of this incident and that the first time he heard of it was when he was asked about it by an ICTY investigator 2368 462 Witness 1 testified that he had seen “Toger” on several occasions prior and subsequent to this incident in early August 2369 On 15 and 16 October 2002 Witness 1 was shown a photo board with eight pictures 2370 The witness stated that he recognized “without any doubt” picture number six as the photo of the man he called “Toger” 2371 Picture number six is the picture of the Accused Idriz Balaj 2372 463 Witness 56 testified that some day in 1998 around 11 00 p m four or five armed men came to his house asked him where his son was and took his son and daughter-inlaw who were living at his house to the “headquarters” 2373 According to the witness the men were from the KLA 2374 After they had returned together around 4 00 that evening his son told Witness 56 that he had been put in a well and that they “did whatever they wanted” to his wife 2375 Witness 56 noticed that his son’s clothes were wet 2376 According to Witness 56 his son and daughter-in-law were taken from the house and brought back by car 2377 Witness 56 heard his daughter-in-law say to his son “he did to me what he wanted” and “they did to me something and you know what they did to me” 2378 Witness 56 also heard his daughter-in-law mention the name “Toger” but did not provide more information about this 2379 The morning following the incident Witness 56 went to see the village KLA commander Shemsedin Cekaj but he was asleep 2380 Some two hours later Shemsedin Cekaj and another commander came to Witness 56’s house and spoke to his relatives about what had happened 2381 Witness 2366 P1252 Witness 1 witness statement 28 May 2006 para 39 P1250 Witness 1 witness statement 24 August 2002 p 2 P1252 Witness 1 witness statement 28 May 2006 para 35 2368 Shemsedin Cekaj T 4517-4518 2369 P1252 Witness 1 witness statement 28 May 2006 paras 30-35 2370 P1251 Witness 1 witness statement 16 October 2002 p 9 Annex 1 2371 P1251 Witness 1 witness statement 16 October 2002 p 9 2372 P1251 Witness 1 witness statement 16 October 2002 p 9 Annex 1-2 2373 Witness 56 T 7101-7103 7111 7114-7115 7126 7128-7129 2374 Witness 56 T 7113 2375 Witness 56 T 7103-7104 7108-7109 7111 7128-7129 2376 Witness 56 T 7111-7112 2377 Witness 56 T 7126-7127 2378 Witness 56 T 7109-7110 2379 Witness 56 T 7108-7109 7112-7113 7127 2380 Witness 56 T 7101 7105-7106 2381 Witness 56 T 7105 2367 Case No IT-04-84-T 257 3 April 2008 56 was not involved in this conversation 2382 Witness 56 also testified that his son sometimes dug trenches for the KLA but did not know whether his son did this voluntarily or not 2383 464 Roel Versonnen an ICTY investigator 2384 testified that he interviewed Witness 1 on 15 and 16 October 2002 2385 Versonnen showed Witness 1 a photo board compiled by his team containing pictures of eight male individuals 2386 Other than Versonnen the only people present at the time were Witness 1 and an interpreter 2387 Versonnen asked Witness 1 if he could recognize or identify any of the individuals from the photo board 2388 Versonnen did not ask Witness 1 to look for any specific person nor did he tell Witness 1 that the suspect may or may not be in the line-up 2389 Versonnen was standing to the side of Witness 1 when he showed him the photo board 2390 Witness 1 looked at the photo board and immediately pointed at picture number 6 as being the person he referred to as “Toger” 2391 Picture number 6 is of the Accused Idriz Balaj 2392 Versonnen did not remember if Witness 1 gave a description of “Toger” 2393 Versonnen could not remember seeing the identification guidelines of the Office of the Prosecutor and did not think he was aware of them at the time of the interview with Witness 1 2394 Versonnen did not ask Witness 1 to sign the photo board 2395 465 As referred to above the Trial Chamber has heard evidence that one night around midnight in the summer of 1998 five armed men in black uniforms with KLA insignia took Witness 61 and Witness 1 from their home to the KLA headquarters in Rznić Irzniq There the witnesses were separated Witness 1 stated that two of the five armed men put him in a well where he was left standing in water Witness 61 testified 2382 Witness 56 T 7102 7105-7106 7116-7117 Witness 56 T 7113-7114 2384 P1225 Roel Versonnen witness statement 12 February 2007 para 2 Roel Versonnen T 10610 10902 2385 P1225 Roel Versonnen witness statement 12 February 2007 paras 8-9 Roel Versonnen T 10896 2386 P1225 Roel Versonnen witness statement 12 February 2007 paras 6 12 Roel Versonnen T 10896 10902 P1230 Photo board shown to Witness 1 p 2 2387 P1225 Roel Versonnen witness statement 12 February 2007 para 13 Roel Versonnen T 10896 10910 2388 P1225 Roel Versonnen witness statement 12 February 2007 paras 12-13 Roel Versonnen T 10896 2389 P1225 Roel Versonnen witness statement 12 February 2007 para 13 2390 P1225 Roel Versonnen witness statement 12 February 2007 para 13 Roel Versonnen T 10896 2391 Roel Versonnen T 10897-10899 2392 Roel Versonnen T 10900 P1230 Photo board shown to Witness 1 pp 1-2 2393 Roel Versonnen T 10908 2394 Roel Versonnen T 10905-10906 2395 Roel Versonnen T 10906-10907 2383 Case No IT-04-84-T 258 3 April 2008 that two of the others took her into a room where she was left alone with a man who interrogated her for about half an hour about whether her husband had collaborated with the Serbian police This man placed several weapons on a table and then repeatedly subjected her to sexual penetration in the course of about one and a half hours Witness 61 feared that he would kill her Witness 61 and Witness 1 returned home around 3 to 4 a m Witness 61 told Witness 1 about what had happened to her which Witness 56 overheard Witness 1 told Witness 61 and Witness 56 that he had been put in a well and they both noticed that his clothes were wet 466 On the basis of this evidence the Trial Chamber is satisfied that a KLA soldier intentionally sexually penetrated Witness 61 knowing that it occurred without her consent The Trial Chamber is furthermore convinced that this inflicted severe physical and mental suffering upon her and constituted a serious attack on her human dignity The Trial Chamber therefore concludes that the KLA soldier committed the crimes of rape and cruel treatment against Witness 61 Considering the circumstances under which the rape was committed in particular that Witness 61 had been interrogated for about half an hour about whether the husband had collaborated with the Serbian police the Trial Chamber finds that the rape was aimed at punishing and or intimidating Witness 61 The Trial Chamber therefore concludes that the KLA soldier committed torture against Witness 61 The Trial Chamber is furthermore convinced that the crimes were closely related to the armed conflict in Kosovo Kosova 467 The Trial Chamber finds that it is also not established that KLA soldiers by putting Witness 1 in a well or by any other acts caused him serious mental or physical suffering or injury or seriously attacked his human dignity Consequently the Trial Chamber is not convinced beyond a reasonable doubt that cruel treatment or torture was committed against Witness 1 468 All three Accused are charged with Counts 36 and 37 as participants in a joint criminal enterprise The Trial Chamber will deal with this mode of liability separately in section 7 below Idriz Balaj is also charged in the alternative with having committed or planned the crimes described in Counts 36 and 37 469 Witness 1 stated that one of the five men who took him and Witness 61 from their house was “Toger” whom Witness 1 knew from before Witness 61 testified that one of the five men was addressed as “Toger” by the other four She also testified that after the incident Witness 1 told her that he had recognized one of these men as Case No IT-04-84-T 259 3 April 2008 “Toger” The Trial Chamber finds that “Toger” was among the men who took Witness 61 and Witness 1 from their home Based on the whole of the evidence the Trial Chamber is convinced that Toger is Idriz Balaj 2396 Witness 61 and Witness 1 both stated that two of the five armed men took Witness 1 to the well Witness 61 testified that she was taken to a room in a house by two of the other men while Witness 1 stated that Toger took her to the house Witness 1 was not in a position to see who brought Witness 61 into the room where she was raped The Trial Chamber finds that this evidence leaves reasonable doubt as to whether it was Toger or another KLA soldier who raped Witness 61 As she testified that it was too dark for her to see the soldiers who came to her house it is possible that she confused Toger with someone else Furthermore Witness 61 did not recognize Idriz Balaj on an ICTY photo board and stated when seeing Idriz Balaj on television in 2005 that he did not look like the man who raped her and that he looked older She also testified in court that she would no longer be able to recognize the man who raped her The Trial Chamber concludes that her memory of the perpetrator is either insufficient for the purpose of identification or does not fit the likeness of Idriz Balaj As for Witness 1 he was not in a position to know who committed the rape Considering the doubts arising from this evidence the Trial Chamber will not rely on the hearsay evidence according to which Toger admitted to having raped Witness 61 Based on the evidence the Trial Chamber cannot conclude beyond a reasonable doubt that the person who raped Witness 61 was Idriz Balaj or that he planned for anyone else to do so Consequently the Trial Chamber concludes that Idriz Balaj should be acquitted of committing or planning the commission of the crimes of rape cruel treatment and torture against Witness 61 2396 Shemsedin Cekaj T 4394 P1213 Ylber Haskaj witness statement 5 November 2007 para 14 Ylber Haskaj T 10339 P371 Bogdan Tomaš witness statement 24 May 2007 para 26 and other evidence as discussed in the findings on this Count and in section 6 8 Case No IT-04-84-T 260 3 April 2008 7 The Accused’s participation in a joint criminal enterprise 470 The Prosecution has charged all three Accused with participation in a joint criminal enterprise The objective of this alleged joint criminal enterprise was “to consolidate the total control of the KLA over the Dukagjin Operational Zone by the unlawful removal and mistreatment of Serbian civilians and by the mistreatment of Kosovar Albanian and Kosovar Roma Egyptian civilians and other civilians who were or were perceived to have been collaborators with the Serbian Forces or otherwise not supporting the KLA” 2397 The objective involved the commission of the crimes charged in the Indictment The Trial Chamber has found that KLA soldiers committed acts of cruel treatment torture rape and murder as charged in Counts 6 14 20 22 with regard to the murder of Nurije and Istref Krasniqi and the murder of Sanije Balaj 28 30 32 36 and 37 with regard to Witness 61 471 The Prosecution has presented little direct evidence with regard to the alleged common criminal objective Jakup Krasniqi a member of the KLA General Staff in late 1996 or the beginning of 1997 and the KLA spokesperson as of 11 June 1998 2398 testified that it was never KLA policy to target civilians of any ethnicity 2399 A KLA policy statement issued on 29 April 1998 condemned violence directed against the civilian population and persons in captivity 2400 Krasniqi acknowledged that the KLA stopped people at checkpoints detained and questioned them and then released them 2401 He stated that to the extent that crimes against innocent civilians and noncombatants were committed by individuals within the KLA these were acts committed by rogue elements without the knowledge approval or support of anyone in authority or command 2402 The witness testified that “collaborators” were killed during battle at 2397 Indictment para 26 P328 Jakup Krasniqi witness statement 24 May 2007 para 4 Annex 14 KLA communiqué in Bujku 12 June 1998 P340 Jakup Krasniqi Limaj et al transcript 10-12 February 2005 pp 3296 3298 3307 3313 3355 3427-3429 Jakup Krasniqi T 4953 4973 4989 5022 5024 5070 5072 50745075 5078 2399 P328 Jakup Krasniqi witness statement 24 May 2007 para 6 P340 Jakup Krasniqi Limaj et al transcript 10-12 February 2005 pp 3329 3363 3439-3441 3443 3445 3449 P328 Jakup Krasniqi witness statement 24 May 2007 Annex 18 Jakup Krasniqi interview in Koha Ditore 12 July 1998 p 4 Jakup Krasniqi T 4959-4961 2400 P328 Jakup Krasniqi witness statement 24 May 2007 Annex 12 KLA political statement 29 April 1998 p 2 2401 P340 Jakup Krasniqi Limaj et al transcript 10-12 February 2005 p 3449 Jakup Krasniqi T 5114-5115 5152-5153 2402 P328 Jakup Krasniqi witness statement 24 May 2007 para 6 P340 Jakup Krasniqi Limaj et al transcript 10-12 February 2005 p 3440-3441 2398 Case No IT-04-84-T 261 3 April 2008 the front line “while they were serving the enemy” but that he knew of no “collaborators” who were executed after arrest 2403 The witness defined a “collaborator” as a person who was recruited into the Serbian security services police or military and so served the Serbian regime 2404 472 Two KLA communiqués dated 13 May 1998 and 13 July 1998 respectively state that the KLA carried out operations against collaborators during March April May and July 1998 2405 However the KLA communiqués do not specify what these operations were 2406 An earlier communiqué dated 27 February 1998 described “a series of attacks against forces of the Serbian police and their collaborators” during January and February 1998 2407 Of the specific attacks mentioned two had been launched against the police a third had been launched against “a collaborator with the occupier” and a fourth against “a close collaborator of Arkan” Krasniqi stressed that KLA communiqués aimed to inform the public of KLA activity but were also used as propaganda to boost KLA morale raise KLA standing and encourage recruitment 2408 He testified that although the events described in the communiqués did occur they exaggerated KLA successes and organizational level while talking down KLA failures and losses 2409 473 The Trial Chamber has heard some evidence about people sought by the KLA being placed on lists which were then distributed within the KLA Witness 17 testified that on 12 July he attended a meeting at Din Krasniqi’s home in Vranovac Vranoc in Peć Pejë municipality together with among others the village commanders of the Barane Baran valley in Peć Pejë municipality 2410 At the meeting the witness was given a list of persons 2411 The list as reproduced in the notes of the witness included the 2403 P340 Jakup Krasniqi Limaj et al transcript 10-12 February 2005 p 3321 Jakup Krasniqi T 5066 5115 5117 2404 P328 Jakup Krasniqi witness statement 24 May 2007 Annex 18 Jakup Krasniqi interview in Koha Ditore 12 July 1998 p 4 P340 Jakup Krasniqi Limaj et al transcript 10-12 February 2005 pp 3320 3326-3327 3437 Jakup Krasniqi T 5060-6062 5064-5065 5153 2405 P328 Jakup Krasniqi witness statement 24 May 2007 Annex 13 KLA communiqué in Koha Ditore 13 May 1998 p 1 Annex 16 KLA communiqué in Koha Ditore 13 July 1998 P340 Jakup Krasniqi Limaj et al transcript 10-12 February 2005 p 3350 Jakup Krasniqi T 4972 2406 P328 Jakup Krasniqi witness statement 24 May 2007 Annex 13 KLA communiqué in Koha Ditore 13 May 1998 p 1 Annex 16 KLA communiqué in Koha Ditore 13 July 1998 2407 P966 KLA communiqué in Zëri 27 February 1998 2408 P340 Jakup Krasniqi Limaj et al transcript 10-12 February 2005 pp 3339-3341 3346 3350 3353-3354 3377 3419-3420 Jakup Krasniqi T 4953-4954 4967-4968 4980 5011 5035 2409 P328 Jakup Krasniqi Limaj et al transcript 10-12 February 2005 pp 3321-3327 3350-3351 3420 Jakup Krasniqi T 4967-4968 4978-4980 5011-5012 5038 5044 2410 P885 Witness 17 witness statement 14 August 2007 para 56 Witness 17 T 7583-7586 2411 P885 Witness 17 witness statement 14 August 2007 paras 57-58 Witness 17 T 7584 Case No IT-04-84-T 262 3 April 2008 following names Zenel illegible family name Ali illegible family name Mehmet Alia Tahir Zhukri Zenun Gashi together with his son Zenel Mehmeti Shekrelet Sadiku together with his family “two women collaborators Turjak-Kosturiq” Misin Berisha “- Roman person Gllogjan” and Skënder Sali Kuçi “- Lutogllavë” 2412 The witness did not know any of the persons on the list 2413 The Trial Chamber has received evidence about the eventual fate of three of the persons on the list although no evidence with regard to the remaining eight Witness 17 did not know from whom he got the list 2414 He could not remember whether he had received the list orally or in writing 2415 The witness did understand that the persons were sought for but not by whom or for what purpose and he did not enquire 2416 From this evidence the Trial Chamber cannot draw conclusions about the purpose of this list who issued the list and under what authority about any link between the distribution of the list and the commission of crimes charged in the Indictment or about any link between the list or any of the Accused 474 Rrustem Tetaj a former JNA officer from Donja Luka Lluka ë Ultë in Dečani Deçan municipality 2417 testified that he was aware of many people who had been “blacklisted” by two KLA soldiers called Faton Mehmetaj and Fitnete Ramosaj for not being loyal to the KLA for sympathizing with the LDK or for having worked for the Serbian MUP or other similar bodies 2418 These lists were circulated amongst the KLA village guards in several villages that were sympathetic to the KLA so that they could prevent these people from entering the villages 2419 The purpose of this was to “compromise” or discredit those who had been “blacklisted” 2420 Rrustem Tetaj testified that he too had been placed on such a list and had been summoned by Faton Mehmetaj for interrogation in the beginning of May 1998 2421 Although he felt that the interrogation had been conducted in a threatening manner he was at no point mistreated 2412 P885 Witness 17 witness statement 14 August 2007 para 57 P886 Notes of Witness 17 pp 13- 14 2413 P885 Witness 17 witness statement 14 August 2007 para 58 Witness 17 T 7694 P885 Witness 17 witness statement 14 August 2007 para 57 Witness 17 T 7584 7699 2415 Witness 17 T 7694 2416 P885 Witness 17 witness statement 14 August 2007 paras 57-58 Witness 17 T 7696-7697 7700 2417 P265 Rrustem Tetaj witness statement 17 April 2007 para 1 Rrustem Tetaj T 3604-3605 2418 P265 Rrustem Tetaj witness statement 17 April 2007 paras 14-15 29 Rrustem Tetaj T 3671 2419 P265 Rrustem Tetaj witness statement 17 April 2007 para 29 Rrustem Tetaj T 3863 38583859 3863 2420 P265 Rrustem Tetaj witness statement 17 April 2007 para 29 Rrustem Tetaj T 3671 38583859 2421 P265 Rrustem Tetaj witness statement 17 April 2007 para 30 2414 Case No IT-04-84-T 263 3 April 2008 during the two-hour long questioning 2422 Rrustem Tetaj did not provide any other examples of persons being placed on such lists 475 The Trial Chamber considers that the direct evidence before it is insufficient to conclude that there existed a joint criminal enterprise the objective of which was to commit the crimes charged in the Indictment In the absence of sufficient direct evidence the possibility remains of inferring from circumstantial evidence principally from evidence on crimes committed by KLA soldiers that there existed a joint criminal enterprise with the objective to commit such crimes This must however be the only reasonable conclusion on the evidence 2423 With regard to the murders of Sanije Balaj and Istref and Nurije Krasniqi the Trial Chamber has in sections 6 1 6 12 6 and 6 12 12 above concluded that there are reasonable alternatives to KLA involvement in the crimes namely that the three persons were murdered by persons who were not acting under the direction of or in pursuit of the policies of the KLA In this respect the Trial Chamber considers with regard to Sanije Balaj in particular that Ramush Haradinaj among others insisted on an investigation into her death and that such investigations in fact were undertaken 476 The crimes in Counts 28 30 and 32 were all committed in the Jablanica Jabllanicë compound where the nine victims under these counts were detained The Trial Chamber has found that KLA soldiers participated in the illtreatment of the nine detainees and the murder of two of them At least two of the detainees were released from detention The Trial Chamber has received evidence about four named men including Lahi Brahimaj taking part in the ill-treatment The Trial Chamber has received no evidence about who decided to establish the detention facility when such a decision was taken and for what purpose it was established The Trial Chamber has received little evidence about the involvement of KLA soldiers from outside Jablanica Jabllanicë in the events that took place in the compound A notable exception described in detail in section 6 17 2 above is the intervention of Ramush Haradinaj and Rrustem Tetaj in order to have Skender Kuqi released from detention Although the events in the Jablanica Jabllanicë compound appear to indicate that crimes committed there were carried out in a systematic way the evidence before the Trial Chamber is nevertheless insufficient to infer the existence of the common criminal 2422 2423 P265 Rrustem Tetaj witness statement 17 April 2007 para 30 Čelebići Appeal Judgement para 458 Case No IT-04-84-T 264 3 April 2008 objective shared by the Accused as alleged by the Prosecution The commission of the crimes in Counts 6 14 20 28 30 32 36 and 37 occurred over a period of five months in different villages in three municipalities The Trial Chamber is not able to conclude from the evidence presented on the counts that these crimes were committed by KLA members systematically pursuant to a single objective 477 In section 4 2 above the Trial Chamber has reviewed other evidence with relevance for the question of the existence of a joint criminal enterprise in particular about Serbs leaving their homes during the indictment period However in the mentioned section the Trial Chamber concluded that in addition to those who fled out of fear grounded or not of being attacked by the KLA there were also those who fled out of general fear of being caught up in the armed conflict between Serbian forces and the KLA The Trial Chamber could not draw any general conclusion with regard to the alleged attack against a civilian population from this evidence Neither does this evidence allow the Trial Chamber to infer a common criminal objective as alleged by the Prosecution 478 The Trial Chamber cannot conclude from the direct and circumstantial evidence referred to above that the KLA had an objective to unlawfully remove and mistreat Serbian civilians or mistreat Kosovar Albanian and Kosovar Roma Egyptian civilians and other civilians who were or were perceived to have been collaborators with the Serbian Forces or otherwise not supporting the KLA The Trial Chamber is therefore not satisfied beyond a reasonable doubt of the existence of a joint criminal enterprise as charged in which the three Accused participated The Trial Chamber concludes that all three Accused should be acquitted on Counts 6 14 20 22 with regard to the murder of Nurije and Istref Krasniqi and the murder of Sanije Balaj 30 36 and 37 In addition Ramush Haradinaj and Idriz Balaj should be acquitted on Counts 28 and 32 Lahi Brahimaj will not be held responsible under Counts 28 and 32 as a participant in a joint criminal enterprise The Trial Chamber has dealt with the alternative modes of liability for him for the mentioned counts in sections 6 15 and 6 17 3 above Case No IT-04-84-T 265 3 April 2008 8 Cumulative convictions 479 The Trial Chamber has concluded that Lahi Brahimaj should be convicted of charges under Counts 28 and 32 since the elements of crimes of cruel treatment and torture have been met However it is permissible to enter cumulative convictions under different statutory provisions to punish the same criminal conduct only if “each statutory provision involved has a materially distinct element not contained in the other” and an element is materially distinct “if it requires proof of a fact not required by the other statutory provision” 2424 When this test is not met the conviction on the more specific provision will be entered 2425 The more specific offence subsumes the less specific one because the commission of the former necessarily entails the commission of the latter 2426 480 The elements of each of the two offences of torture and cruel treatment have been analysed in section 5 1 2 above Both offences require that the victim must have suffered serious bodily or mental harm this harm must be a result of an act or omission 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 The offence of cruel treatment does not demand the additional proof of an element above those required for the offence of torture Therefore where the offences of torture and cruel treatment arise out of the same criminal conduct of the Accused the Trial Chamber will enter a conviction only in respect of the charge of torture 481 In the instant case the Trial Chamber is convinced that Lahi Brahimaj has committed the crimes of cruel treatment and torture as charged under Counts 28 and 32 Under Count 28 this originated from the same criminal conduct and therefore the Trial Chamber will enter a conviction for torture only However under Count 32 the Trial Chamber found two incidents of criminal conduct which were separate in time and 2424 Čelebiči Appeal Judgement para 412 Jelisić Appeal Judgement para 78 Kupreškić et al Appeal Judgement para 387 Kunarac et al Appeal Judgement paras 168 173 Krstić Appeal Judgement para 218 Stakić Appeal Judgement para 355 Naletilić and Martinović Appeal Judgement para 584 Galić Appeal Judgement para 163 2425 Čelebiči Appeal Judgement para 413 Jelisić Appeal Judgement para 79 Kupreškić et al Appeal Judgement para 387 Kunarac et al Appeal Judgement para 168 Krstić Appeal Judgement para 218 Stakić Appeal Judgement para 355 Galić Appeal Judgement para 163 2426 Krstić Appeal Judgement para 218 Galić Appeal Judgement para 163 Case No IT-04-84-T 266 3 April 2008 place For the first one the conduct amounted to both cruel treatment and torture and therefore based on the law on cumulative convictions the Trial Chamber will enter a conviction for torture only For the second incident the criminal conduct amounted to cruel treatment only For this incident the Trial Chamber will enter a conviction for cruel treatment Case No IT-04-84-T 267 3 April 2008 9 Sentencing 9 1 Law on sentencing 482 The relevant provisions of the Tribunal’s Statute and Rules are Article 24 of the Statute Penalties 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 Penalties 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 Case No IT-04-84-T 268 3 April 2008 483 The following factors have to be taken into consideration when imposing a sentence i the gravity of the offences or the totality of the culpable conduct ii the individual circumstances of the convicted person including mitigating circumstances iii the general practice regarding prison sentences in the courts of the former Yugoslavia iv the credit to be given for the period in detention if any pending surrender to the Tribunal or pending trial or appeal and v 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 2427 The last factor is not applicable in this case 9 2 Purpose of sentencing 484 The case law of the Tribunal indicates that the two primary purposes of sentencing are retribution and deterrence 2428 485 As a form of retribution the sentence expresses society’s condemnation of the criminal act and of the person who committed it 2429 To fulfil the objective of retribution the Trial Chamber must therefore impose a sentence which properly reflects the personal culpability of the wrongdoer 2430 The Trial Chamber considers that this purpose is reflected in the obligation that the Trial Chamber has to take into account the gravity of the offences or the totality of the culpable conduct 486 Both special and general deterrence are important purposes of sentencing in criminal law 2431 The rationale of special deterrence is to dissuade the wrongdoer from recidivism in the future whereas general deterrence aims at discouraging others from committing similar crimes 2432 In the present case and considering the circumstances in which the crimes were committed the Trial Chamber considers that the risk that Lahi Brahimaj would commit the same kinds of crime in the future is small which considerably reduces the relevance of special deterrence 487 As far as general deterrence is concerned persons who believe themselves to be beyond the reach of international criminal law must be warned that they have to abide 2427 Blaškić Appeal Judgement para 679 Aleksovski Appeal Judgement para 185 Čelebići Appeal Judgement para 806 Stakić Appeal Judgement para 402 2429 Jokić Trial Sentencing Judgement para 31 Mrđa Sentencing Judgement para 14 2430 Kordić and Čerkez Appeal Judgement para 1075 2431 Kordić and Čerkez Appeal Judgement para 1076 2428 Case No IT-04-84-T 269 3 April 2008 by the norms underpinned by substantive criminal law or face prosecution and if convicted sanctions 2433 The Trial Chamber considers that an appropriate sentence for the Accused in this case essentially contributes to achieving a general deterrent effect 488 Rehabilitation is also considered to be a relevant though less important purpose of sentencing 2434 9 3 Sentencing Factors 9 3 1 Gravity of the offences and the totality of the culpable conduct 489 The gravity of the offences is the primary consideration in imposing a sentence 2435 The Trial Chamber finds it appropriate to consider the gravity of the offences that the Accused has committed together with other aggravating circumstances since a separate examination of these aspects would be an artificial exercise 2436 By taking this approach the Trial Chamber avoids the pitfall that a specific factor will be counted twice for sentencing purposes which is impermissible according to the Appeals Chamber 2437 Determining the gravity of the crime to impose an appropriate sentence requires consideration of the particular circumstances of the case as well as the form and degree of the participation of the convicted person in the crime 2438 Aggravating circumstances must be directly related to the charged offence 2439 A Trial Chamber has the discretion to find that direct responsibility under Article 7 1 of the Statute is aggravated by a perpetrator's position of authority 2440 Only factors which have been 2432 Kordić and Čerkez Appeal Judgement paras 1077-1078 Dragan Nikolić Appeal Sentencing Judgement para 45 2433 Kordić and Čerkez Appeal Judgement para 1078 2434 Čelebići Appeal Judgement para 806 Kordić and Čerkez Appeal Judgement para 1079 Stakić Appeal Judgement para 402 2435 Aleksovski Appeal Judgement para 182 Čelebići Appeal Judgement para 731 Kupreškić et al Appeal Judgement para 442 Blaškić Appeal Judgement para 683 Momir Nikolić Appeal Sentencing Judgement para 11 Galić Appeal Judgement para 442 2436 Bralo Sentencing Judgement para 27 Krajišnik Trial Judgement para 1139 2437 Deronjić Appeal Sentencing Judgement paras 106-107 Limaj Appeal Judgement para 143 2438 Aleksovski Appeal Judgement para 182 Furundžija Appeal Judgement para 249 Čelebići Appeal Judgement para 731 Jelisić Appeal Judgement para 101 Blaškić Appeal Judgement para 683 Kordić and Čerkez Appeal Judgement para 1061 Dragan Nikolić Appeal Sentencing Judgement para 18 Babić Appeal Sentencing Judgement para 39 Galić Appeal Judgement para 409 2439 Stakić Trial Judgement para 911 2440 Aleksovski Appeal Judgement para 183 Čelebići Appeal Judgement para 745 Kupreškić et al Appeal Judgement para 451 Blaškić Appeal Judgement paras 90-91 Naletilić and Martinović Appeal Judgement para 613 Case No IT-04-84-T 270 3 April 2008 proven beyond a reasonable doubt will be taken into consideration as aggravating circumstances 2441 490 The Trial Chamber has heard evidence that Lahi Brahimaj personally participated in the recurring beatings of Witness 6 over a period of approximately four weeks On occasions Lahi Brahimaj was present while other soldiers carried out the beatings In addition Lahi Brahimaj personally brought another victim Witness 3 from a house in Zabelj Zhabel and subsequently confined him to a room in the Jablanica Jabllanicë compound Shortly after Lahi Brahimaj had left the room several men entered and beat Witness 3 with baseball bats to the point that he lost consciousness Lahi Brahimaj later took Witness 3 to a room where he personally interrogated him in presence of other individuals Lahi Brahimaj then called on two women who were present in the room to “practice” on Witness 3 The two individuals beat the hands of Witness 3 for five to ten minutes using a telescopic instrument During this episode Lahi Brahimaj handed Witness 3 a revolver and encouraged him to take his own life Another individual present in the room threatened to cut the victim’s throat During a separate and subsequent incident Lahi Brahimaj held up Witness 3 at gunpoint and drove him to his house where they were joined by a woman Lahi Brahimaj and that individual after slapping the victim forced him into a car and drove off During part of the car ride Lahi Brahimaj drove the car while the woman held a gun to the victim’s head At some point Lahi Brahimaj stopped the car and put Witness 3 in the trunk of the car Later on Lahi Brahimaj opened the trunk of the car pulled out his weapon and asked Witness 3 whether he should pull the trigger When Witness 3 answered in the affirmative he fired his weapon Witness 3 briefly thought that he had been shot but soon realized that he had not In sections 6 15 and 6 17 3 above the Trial Chamber has found that Lahi Brahimaj should be convicted of two charges of torture and one charge of cruel treatment 491 Lahi Brahimaj has held high-ranking positions in the KLA Not only was he a member of the KLA General Staff but for some time in June and early July 1998 he was also Deputy Commander of the Dukagjin Operational Staff 2442 These positions of authority although he was not the Deputy Commander when most of the crimes were 2441 Čelebići Appeal Judgement para 763 Jakup Krasniqi T 5009 5055-5056 5070 5075 5077-5078 5138 5140-5141 Rrustem Tetaj T 3657-3658 3661 3744 P141 Minutes of meeting of Dukagjin staff of 23 June 1998 pp 6-8 P142 Elaborate minutes of meeting of Dukagjin staff of 23 June 1998 p 3 2442 Case No IT-04-84-T 271 3 April 2008 committed are considered as aggravating factors The Trial Chamber also exercises its discretion in this respect because Brahimaj committed the crimes in the presence of lower ranking KLA soldiers and was present when other soldiers behaved similarly The Trial Chamber finds that this cannot but have had an encouraging effect on the soldiers to commit or continue to commit such crimes High-ranking officials should be the first to refrain from the commission of crimes in order to prevent others from seeing this behaviour as permissible and imitating it 492 The Trial Chamber has considered the special vulnerability of Witness 3 and Witness 6 who were held in confinement 2443 They were not only deprived of their liberty but also detained under such conditions that left them at the complete mercy of their captors in Jablanica Jabllanicë Finally the Trial Chamber has considered the physical and mental trauma suffered and still being felt by the two victims 2444 Witness 6 testified how he saw the beating of Skender Kuqi and later learned that Kuqi had been sent for treatment in Glođane Gllogjan where he died To learn about this fate of another detainee while remaining in detention and having been subjected to ill-treatment himself must have added to Witness 6’s fear for his life Witness 6 also gave evidence about chronic pain all over his body and his inability to perform physical work all as a result of the treatment he endured at Jablanica Jabllanicë At the time of his testimony in 2007 Witness 6 was still taking medication for the injuries inflicted on him nearly a decade earlier 493 The Trial Chamber has concluded that Lahi Brahimaj should be convicted of two instances of torture and one instance of cruel treatment The Trial Chamber has considered the inherent seriousness of these crimes and that Lahi Brahimaj who held high-ranking positions in the KLA participated directly in the commission of them The Trial Chamber has also considered the vulnerability of the victims and the physical and mental trauma suffered by them All these factors make up the gravity of the offence and the totality of the conduct in this case 2443 See Kunarac et al Appeal Judgement para 352 Blaškić Appeal Judgement para 683 Deronjić Appeal Sentencing Judgement para 124 2444 Vasiljević Appeal Judgement para 167 Blaškić Appeal Judgement para 683 Case No IT-04-84-T 272 3 April 2008 9 3 2 Individual circumstances of Lahi Brahimaj 494 The acknowledgement and application of mitigating circumstances does not diminish the gravity of the crime 2445 Such factors only need to be proven by the balance of probabilities 2446 The only mitigating factor specifically mentioned in the Rules is the “substantial cooperation with the Prosecutor by the convicted person before or after conviction” 2447 Other mitigating factors include voluntary surrender 2448 good character including no prior criminal record 2449 comportment in detention 2450 personal and family circumstances 2451 and age 2452 Voluntary surrender constitutes a mitigating factor since it presents considerable benefits to the international community and because it may encourage other accused persons to surrender in the future 2453 Even welldocumented good behaviour in detention does not weigh significantly in favour of mitigation 2454 An accused person’s young age at the time of the commission of the crimes may cautiously be taken into account as a mitigating factor 2455 Generally accused persons 25 years old at the time of the commission of their crimes will not have their age considered a mitigating factor 2456 495 The Brahimaj Defence did not raise any argument regarding mitigating factors including any personal circumstances 2457 Nevertheless the Trial Chamber will examine information before it to determine whether mitigating circumstances exist Lahi Brahimaj voluntarily surrendered to the Tribunal immediately upon learning of the 2445 Erdemović Sentencing Judgement para 46 Bralo Sentencing Judgement para 42 Zelenović Trial Sentencing Judgement para 44 2446 Blaškić Appeal Judgement para 697 2447 Rule 101 B ii 2448 Blaškić Appeal Judgement para 696 Babić Appeal Sentencing Judgement para 43 2449 Kupreškić et al Appeal Judgement para 459 Blaškić Appeal Judgement para 696 Kordić and Čerkez Appeal Judgement para 1090 Babić Appeal Sentencing Judgement para 43 2450 Blaškić Appeal Judgement paras 696 728 Kordić and Čerkez Appeal Judgement para 1091 Babić Appeal Sentencing Judgement para 43 Blagoje Simić et al Appeal Judgement para 266 2451 Kunarac et al Appeal Judgement paras 362 and 408 Blaškić Appeal Judgement para 696 Kordić and Čerkez Appeal Judgement para 1091 Babić Appeal Sentencing Judgement para 43 Simić et al Appeal Judgement para 266 2452 Blaškić Appeal Judgement para 696 Babić Appeal Sentencing Judgement para 43 Simić et al Appeal Judgement para 266 2453 Naletilić and Martinović Appeal Judgement para 600 2454 Momir Nikolić Sentencing Judgement para 168 Deronjić Sentencing Judgement para 273 2455 Furundžija Trial Judgement para 284 Jelisić Trial Judgement para 124 Banović Sentencing Judgement paras 75-76 Orić Trial Judgement paras 756-757 2456 Češić Sentencing Judgement para 91 Mrđa Sentencing Judgement para 93 Bralo Sentencing Judgement paras 47-48 Orić Trial Judgement paras 756-757 2457 T 11195-11197 Case No IT-04-84-T 273 3 April 2008 Indictment against him 2458 The Trial Chamber finds this a mitigating factor Letters of reference were submitted on Lahi Brahimaj’s behalf in aid of his requests for provisional release providing evidence of a few individuals’ beliefs as to Lahi Brahimaj’s good character 2459 The content of these letter is of such a general nature that the Trial Chamber is unable to give this any weight in mitigation Lahi Brahimaj has four children between the age of four and nine 2460 The Trial Chamber recognizes that the incarceration of any Accused results in hardship for his family and will therefore take Lahi Brahimaj’s family circumstances into account for purposes of mitigation According to previous decisions taken in this case Lahi Brahimaj made himself available for an interview with Prosecution investigators which indicated a degree of co-operation with the Prosecution 2461 As his voluntary submission for an interview was not substantial especially as he provided only limited information it will not weigh in mitigation in this case In the absence of any documentation regarding Lahi Brahimaj’s comportment in the United Nations Detention Unit UNDU the Trial Chamber cannot consider this factor Lahi Brahimaj was 28 years old during the commission of the crimes and 38 years old at the time of this Judgement 2462 Lahi Brahimaj is not of such an advanced age at the time of this Judgement that incarceration would be harder on him than on others nor was he so young at the time he committed his crimes that he could be said to have less responsibility than others for his actions 496 In conclusion the Trial Chamber has considered Lahi Brahimaj’s voluntary surrender to the Tribunal and his family situation as mitigating circumstances 9 3 3 General practice regarding the prison sentences in the courts of the former Yugoslavia 497 The Trial Chamber is required to consider “the general practice regarding prison sentences in the courts of the former Yugoslavia” in determining the appropriate 2458 Decision on Motion on Behalf of Lahi Brahimaj for Provisional Release 14 December 2007 paras 8 13 2459 Further Decision on Lahi Brahimaj’s Provisional Release 3 May 2006 para 32 Decision on Motion on Behalf of Lahi Brahimaj for Provisional Release 14 December 2007 para 8 2460 Decision on Motion on Behalf of Lahi Brahimaj for Provisional Release 14 December 2007 paras 10 21 2461 Decision on Lahi Brahimaj’s Interlocutory Appeal Against the Trial Chamber’s Decision Denying His Provisional Release 9 March 2006 paras 12-18 Further Decision on Lahi Brahimaj’s Provisional Release 3 May 2006 para 31 2462 Fourth Amended Indictment 16 October 2007 para 11 Case No IT-04-84-T 274 3 April 2008 penalty This does not mean that the Trial Chamber is obliged to conform to that practice 2463 The Tribunal may impose a sentence in excess of that which would be applicable under the relevant law in the former Yugoslavia and the Appeals Chamber has held that this sentencing practice does not violate the principle of nulla poena sine lege because a defendant would have been aware that the crimes for which he or she is indicted constitute serious violations of international humanitarian law punishable by the most severe of penalties 2464 Moreover the Trial Chamber may diverge from the sentencing practice of the former Yugoslavia if this practice is inadequate in light of international law 2465 498 Article 24 1 of the Statute and Rule 101 B iii of the Rules refer to actual practice in courts of the former Yugoslavia It is however settled practice within the Tribunal that the sources to be consulted pursuant to these provisions are not limited to case law from the former Yugoslavia but also include statutory provisions in force in the former Yugoslavia at the time of the commission of the crimes in question 2466 Criminal law in Kosovo Kosova during the indictment period as it pertains to war crimes was regulated by the Criminal Code adopted by the SFRY Federal Assembly on 28 September 1976 and in force since 1 July 1977 “Criminal Code” 2467 The Code punishes war crimes against civilians including killings torture and inhumane treatment with a minimum sentence of five years’ imprisonment or the death penalty or instead of the death penalty a prison sentence of 20 years 2468 499 The Trial Chamber has taken these factors relating to sentencing practices in the former Yugoslavia into consideration in making its determination of the sentence in this case 2463 Tadić Appeal Sentencing Judgement para 21 Čelebići Appeal Judgement paras 813 816 and 820 Jelisić Appeal Judgement para 117 Kupreškić et al Appeal Judgement para 418 Kunarac et al Appeal Judgement paras 347-349 Krstić Appeal Judgement para 260 Blaškić Appeal Judgement paras 681-682 Kordić and Čerkez Appeal Judgement para 1085 Dragan Nikolić Appeal Sentencing Judgement paras 17 69 Jokić Appeal Sentencing Judgement para 38 Galić Appeal Judgement para 398 2464 Tadić Appeal Sentencing Judgement para 21 Čelebići Appeal Judgement para 817 Krstić Appeal Judgement para 262 Blaškić Appeal Judgement para 681 Stakić Appeal Judgement para 398 Simić et al Appeal Judgement para 264 2465 Kunarac et al Appeal Judgement para 377 2466 Dragan Nikolić Appeal Sentencing Judgement para 85 2467 Art 104 1 of the Criminal Code Case No IT-04-84-T 275 3 April 2008 9 3 4 Credit for the time served in custody 500 According to Rule 101 C credit shall be given to the convicted person for the period during which the convicted person was detained pending surrender to the Tribunal or pending trial Lahi Brahimaj surrendered and was transferred to the UNDU on 9 March 2005 He has remained in detention since that day except for a period of provisional release from 21 December 2007 through 4 January 2008 Lahi Brahimaj is therefore entitled to the credit of 1 109 days 9 4 Determination of sentence 501 The Trial Chamber has considered all the circumstances referred to above and finds that the appropriate sentence in the present case to be a single sentence of 6 years of imprisonment As mentioned above Lahi Brahimaj is entitled to credit for the time spent in detention which as of the date of this judgement amounts to 1 109 days 2468 Arts 38 2 142 of the Criminal Code Case No IT-04-84-T 276 3 April 2008 10 Disposition 502 The Trial Chamber finds Ramush Haradinaj NOT GUILTY on all Counts in the Indictment Pursuant to Rule 99 A of the Rules the Trial Chamber orders that Ramush Haradinaj be immediately released from the United Nations Detention Unit 503 The Trial Chamber finds Judge Höpfel dissenting Idriz Balaj NOT GUILTY on all Counts in the Indictment Pursuant to Rule 99 A of the Rules the Trial Chamber orders that Idriz Balaj be released from the United Nations Detention Unit after the necessary practical arrangements are made for his transfer to the authorities competent for the enforcement of the sentence he was serving at the time of his transfer to the seat of the Tribunal 504 The Trial Chamber finds Lahi Brahimaj GUILTY of the following charges in the Indictment Count 28 Torture as a violation of the laws or customs of war Count 32 Torture and cruel treatment as violations of the laws or customs of war but finds Lahi Brahimaj NOT GUILTY on all other counts in the Indictment 505 The Chamber hereby sentences Lahi Brahimaj to a single sentence of 6 years of imprisonment Pursuant to Rule 101 C of the Rules he is entitled to credit for the time spent in detention which as of the date of this judgement amounts to 1 109 days Pursuant to Rule 103 C of the Rules Lahi Brahimaj shall remain in the custody of the Tribunal pending the finalization of arrangements for his transfer to the State where he shall serve his sentence Done in English and French the English text being authoritative Dated this 3rd day of April 2008 At The Hague The Netherlands _________________ ________________ ___________________ Judge Frank Höpfel Judge Alphons Orie Presiding Judge Ole Bjørn Støle Case No IT-04-84-T 277 3 April 2008 11 Partly dissenting opinion of Judge Höpfel on Count 14 1 In this Judgement the Trial Chamber found that KLA soldiers had committed the murders of the mother of Witnesses 4 and 19 their sister “S” and their sister “M” as described in section 6 8 of the Judgement The Trial Chamber also found that Idriz Balaj accompanied sister “S” when and after she was recruited into the KLA and that he was also present when her mother and sister “M” were taken away 2 While I agree with the Trial Chamber's findings on Count 14 as to the aforementioned points I respectfully disagree with the majority's finding that there is no evidence to establish that Idriz Balaj knowingly contributed to or facilitated the commission of the murder of sister S This opinion seeks to explain my dissent 3 As mentioned above Idriz Balaj accompanied sister “S” on several occasions when and after she was recruited into the KLA in the described manner He was also present when her mother and sister “M” were taken away These facts in my view establish his substantial assistance in the commission of the three murders In my opinion beyond being a mere link in the chain of events of each of the three episodes his contributions substantially supported the commission of the murders as bringing the victims into KLA control in this fashion placed them at a direct and serious risk This risk did materialize and resulted in their deaths 4 Witness 4 stated that during the visits to the family Idriz Balaj took a leading role in all these incidents “ … on every occasion when they came Toger was the number one” 2469 As recalled above in section 6 8 according to credible hearsay accounts of Witnesses 4 and 19 sister “S” took orders from Toger Witness 4 testified that Toger had threatened to kill sister “S” if she did not obey his orders to kill someone According to Witness 19 Toger had instructed her to return to the base by a certain time after her second visit As stated by Witness 4 Toger came looking for sister “S” after her second visit This means that in addition to the position of superiority that he held in relation to the vulnerable and unarmed family Idriz Balaj had an especially close relationship with sister “S” that was characterized by his tight and intimidating control over her Moreover Idriz Balaj’s own belief in his control over her life and death was amply demonstrated by the aforementioned death threat 2469 Witness 4 T 1533-1534 Case No IT-04-84-T 278 3 April 2008 5 According to Witness 4 sister “S” told him on her second return after her recruitment into the KLA that she was staying at the KLA headquarters in the old school in Rznić Irzniq This is corroborated by Witness 19's testimony that sister “S” had told him that she had to be back at the base by a certain time and by Witness 4’s statement that he had accompanied her part of the way toward Rznić Irzniq The Trial Chamber has other evidence before it as set out in section 6 19 above that establishes Idriz Balaj's presence at the KLA headquarters in Rznić Irzniq Given Idriz Balaj's leading role in the harassment of the family together with his particularly close relationship with and strict control of sister “S” I find that he was aware that sister “S” would be murdered and that he was aware that taking sister “S” and tightly controlling her would assist in the commission of this crime Due to the detailed information which is before the Trial Chamber regarding Idriz Balaj’s control over sister “S” in my view the mens rea for aiding and abetting the murder of sister “S” is established as opposed to the respective mens rea with respect to the other two victims 6 I am therefore convinced beyond a reasonable doubt that Idriz Balaj is guilty of aiding and abetting the commission of the murder of sister “S” which in my view should have resulted in his conviction under Count 14 Done in English and French the English text being authoritative Dated this 3rd day of April 2008 At The Hague The Netherlands _________________ Judge Frank Höpfel Case No IT-04-84-T 279 3 April 2008 Appendices A Procedural history 1 Indictment The initial Indictment against Ramush Haradinaj Idriz Balaj and Lahi Brahimaj was confirmed on 4 March 2005 2470 On 26 April 2006 the Prosecution sought leave to amend the original Indictment in order to add two new counts and a number of new allegations 2471 On 25 October 2006 Trial Chamber II confirmed the Amended Indictment 2472 On the same day the Prosecution sought leave to further amend the Amended Indictment 2473 While this motion was pending the Prosecution sought leave to amend the Amended Indictment and to replace the proposed Second Amended Indictment with a Revised Second Amended Indictment 2474 On 12 January 2007 Trial Chamber II confirmed the Revised Second Amended Indictment 2475 The Revised Second Amended Indictment removed Counts 1 and 2 of the Amended Indictment and added the underlying offence of torture to Counts 3 4 5 6 16 18 19 20 21 22 23 24 26 27 28 29 31 35 and 37 2476 The Accused entered new pleas to all charges contained in these counts at the Pre-Trial Conference on 1 March 2007 2477 On 13 June 2007 the Prosecution sought leave to amend the Revised Second Amended Indictment 2478 On 5 September 2007 the Trial Chamber confirmed the Revised Third Amended Indictment 2479 The amendment concerned the identification of two previously unidentified victims 2480 Since it did not result in the addition of a new charge against the Accused there was no need to enter new pleas 2481 On 28 September 2007 the Prosecution sought leave to amend the Third Amended Indictment 2482 On 15 October 2007 the Trial Chamber confirmed the Fourth Amended Indictment 2483 The 2470 Decision on Review of the Indictment 4 March 2005 Motion for Leave to Amend the Indictment 26 April 2006 2472 Decision on Motion to Amend the Indictment and on Challenges to the Form of the Amended Indictment 25 October 2006 2473 Prosecution Motion Seeking Leave to Amend the Indictment 25 October 2006 2474 Motion Seeking Leave to Amend the Amended Indictment by Substituting a Revised Second Amended Indictment 10 November 2006 2475 Decision on Motion to Amend the Amended Indictment 12 January 2007 2476 Ibid para 7 2477 T 265-266 2478 Motion Seeking Leave to Amend the Revised Second Amended Indictment 13 June 2007 2479 Decision on Prosecution’s Motion Seeking Leave to Amend the Revised Second Amended Indictment 5 September 2007 2480 Ibid para 15 2481 Ibid paras 11-15 2482 Prosecution's Motion Seeking Leave to Amend the Third Amended Indictment 28 September 2007 2483 Decision on Prosecution’s Motion Seeking Leave to Amend the Third Amended Indictment 15 October 2007 2471 Case No IT-04-84-T 280 3 April 2008 amendment concerned the identification of a previously unidentified victim 2484 Since the proposed amendment did not result in the addition of a new charge against the Accused there was no need to enter new pleas 2485 2 Reduction of the Indictment On 6 February 2007 the Trial Chamber invited the Prosecution to reduce the scope of the Indictment 2486 On 13 February 2007 the Prosecution declined the invitation 2487 On 22 February 2007 the Trial Chamber decided not to reduce the scope of the Indictment reasoning that the removal of counts or incidents “may i result in an indictment that is no longer reasonably representative of the case as a whole and ii may affect the Prosecution’s ability to present evidence on the scope of the alleged widespread or systematic attack and joint criminal enterprise” 2488 3 Arrest transfer and initial appearance Upon service of the Indictment Haradinaj who was the Prime Minister of Kosovo Kosova within the provisional democratic self-governing institutions under Security Council Resolution 1244 1990 stepped down and surrendered to the Tribunal Brahimaj also voluntarily surrendered himself to the Tribunal upon learning of the Indictment Balaj was serving a term of imprisonment of 13 years following a conviction by a local court for murder in Kosovo The three Accused were transferred to the seat of the Tribunal on 9 March 2005 and remanded into custody at the United Nations Detention Unit 2489 4 On 9 March 2005 the case was assigned to Trial Chamber II of the Tribunal by the Acting President 2490 The initial appearance of all three Accused was held before Judge Carmel Agius on 14 March 2005 2491 Each Accused pleaded not guilty to the charges 2492 The following day Judge Agius composed a bench of Judges Agius Hans Hendrik Brydensholt and Albin Eser with Judge Brydensholt designated as the PreTrial Judge 2493 On 14 July 2006 after completion of the terms of service of Judges Brydensholt and Eser Judge Agius designated himself Judge O-Gon Kwon and Judge 2484 Ibid para 5 Ibid para 6 2486 Request to the Prosecutor to Make Proposals to Reduce the Scope of the Indictment 6 February 2007 2487 Prosecution’s Response to Trial Chamber’s ‘Request to the Prosecutor to Make Proposals to Reduce the Scope of the Indictment’ 13 February 2007 para 4 2488 Decision Pursuant to Rule 73 bis D 22 February 2007 para 9 2489 Order for Detention on Remand 11 March 2005 2490 Order Assigning a Case to a Trial Chamber 9 March 2005 2491 Order Designating Judge for Initial Appearance 11 March 2005 2492 T 1-51 2493 Order Regarding Composition of Trial Chamber and Designating a Pre-Trial Judge 15 March 2005 2485 Case No IT-04-84-T 281 3 April 2008 Kimberly Prost as the bench for the pre-trial proceedings and Judge Kwon as the PreTrial Judge 2494 5 Assignment of counsel On 31 March 2005 Haradinaj appointed Mr Ben Emmerson QC Mr Rodney Dixon and Mr Michael O’Reilly as his counsel 2495 On 18 April 2005 the Registrar assigned Mr Gregor Guy-Smith as counsel for Balaj and Mr Richard Harvey as counsel for Brahimaj 2496 On 26 July 2006 Mr Paul Troop was assigned as co-counsel to Brahimaj 2497 On 9 February 2007 Ms Colleen Rohan was assigned as co-counsel to Balaj 2498 6 Assignment of case to Trial Chamber I The Acting President Judge Parker assigned the case to Trial Chamber I “the Trial Chamber” on 15 January 2007 2499 The following day Judge Alphons Orie appointed himself as Pre-Trial Judge 2500 On 17 January 2007 Judge Parker assigned ad litem judges Frank Höpfel and Ole Bjørn Støle to the case for purposes of pre-trial work 2501 On 19 January 2007 the President of the Tribunal assigned the same ad litem judges to the Trial Chamber for the trial 2502 7 Commencement of trial On 24 January 2007 Judge Orie set the pre-trial conference for 1 March 2007 and the start of trial for 5 March 2007 2503 8 Pre-trial briefs The Prosecution filed its pre-trial brief on 29 January 2007 2504 Each Accused filed a pre-trial brief on 12 February 2007 2505 9 Preliminary motions On 5 February 2007 the Balaj Defence requested clarification of paragraph 29 of the 12 January 2007 Indictment 2506 The Trial Chamber found that the Defence had not identified any continuing lack of clarity or uncured 2494 Order Regarding Composition of Trial Chamber and Designating Pre-Trial Judge 14 July 2006 Power of Attorney 31 March 2005 2496 Decision by the Registrar re Assignment of Counsel to Balaj 18 April 2005 Decision by the Registrar re Assignment of Counsel to Lahi Brahimaj 19 April 2005 2497 Decision by the Registrar re Assignment of Co-Counsel to Lahi Brahimaj 26 July 2006 2498 Decision by the Registrar re Assignment of Co-Counsel to Idriz Balaj 9 February 2007 2499 Order Reassigning a Case to a Trial Chamber 15 January 2007 2500 Order Appointing a Pre-Trial Judge 16 January 2007 2501 Order Assigning Ad-Litem Judges for Trial Work 17 January 2007 2502 Order Assigning Ad-Litem Judges to a Case Before a Trial Chamber 19 January 2007 2503 Scheduling Order 24 January 2007 2504 Prosecution’s Pre-Trial Brief 29 January 2007 2505 Pre-Trial Brief for Ramush Haradinaj 12 February 2007 Pre-Trial Brief of Idriz Balaj 12 February 2007 Pre-Trial Brief on Behalf of Lahi Brahimaj 12 February 2007 2506 Defendant Idriz Balaj’s Motion for Clarification of Paragraph 29 of the 12 January 2007 Indictment 12 April 2007 2495 Case No IT-04-84-T 282 3 April 2008 defect with the Indictment which when read in conjunction with the Prosecution’s pretrial brief gave sufficient notice of the scope of application of paragraph 29 2507 10 Provisional release motions On 16 April 2005 duty Judge Iain Bonomy granted a request by Haradinaj for a 48-hour provisional release 2508 On 6 June 2005 Trial Chamber II granted provisional release to Haradinaj until ordered to return to the custody of the Tribunal 2509 Haradinaj was under an obligation to notify UNMIK 24 hours in advance every time he intended to move between Priština Prishtinë and Glođane Gllogjan 2510 During the first 90 days of his provisional release Haradinaj was not permitted “to make any public appearances or in any way get involved in any public political activity” 2511 Haradinaj was permitted to “take up administrative or organizational activities in his capacity of the President of the Alliance for the Future of Kosovo” provided that such activities did not conflict with the conditions of provisional release 2512 11 On 12 October 2005 Trial Chamber II having considered further submissions from the Haradinaj Defence changed this regime to allow Haradinaj to appear in public and engage in political activities to the extent that UNMIK found them important for “a positive development of the political and security situation in Kosovo” 2513 In response to an appeal by the Prosecution the Appeals Chamber imposed an additional obligation on UNMIK to both notify the Prosecution and take into account the Prosecution’s response before authorizing any political activity 2514 On 1 February 2007 due to the upcoming trial the Trial Chamber recalled Haradinaj from provisional release 2515 12 On 10 October 2005 Brahimaj Defence requested provisional release 2516 On 3 November 2005 Trial Chamber II denied the request 2517 Brahimaj Defence appealed 2507 Decision on Idriz Balaj’s Preliminary Motion Concerning Paragraph 29 of the Indictment 31 May 2007 2508 Decision on Urgent Defence Motion on Behalf of Ramush Haradinaj for Provisional Release 16 April 2005 2509 Decision on Ramush Haradinaj’s Motion for Provisional Release 6 June 2005 2510 Ibid para 53 sub-para 6b 2511 Ibid para 53 sub-para 5 2512 Ibid 2513 Decision on Defence Motion on Behalf of Ramush Haradinaj to Request Re-assessment of Conditions of Provisional Release Granted 6 June 2005 12 October 2005 2514 Decision on Ramush Haradinaj’s Modified Provisional Release 10 March 2006 para 104 2515 Order Recalling Ramush Haradinaj from Provisional Release 2 February 2007 2516 Defence Motion on Behalf of Lahi Brahimaj for Provisional Release 10 October 2005 2517 Decision on Lahi Brahimaj’s Motion for Provisional Release 3 November 2005 Case No IT-04-84-T 283 3 April 2008 and the Appeals Chamber directed the Trial Chamber to reconsider 2518 On 3 May 2006 the Trial Chamber again denied Brahimaj’s request 2519 13 On 29 June 2007 the Haradinaj Defence requested temporary provisional release during the Tribunal’s summer recess 2520 On 11 July 2007 the Prosecution objected to this request 2521 On 16 July 2007 Haradinaj replied 2522 On 20 July 2007 the Trial Chamber denied the request arguing that Haradinaj’s provisional release would add to an atmosphere in which witnesses felt unsafe to give evidence 2523 14 On 3 October 2007 the Haradinaj Defence requested urgent provisional release on compassionate grounds following the death of a close relative of Haradinaj 2524 On the same day the Prosecution requested that strict conditions be imposed upon the provisional release 2525 On 3 October 2007 the Trial Chamber granted the provisional release of Haradinaj from 3 to 7 October 2007 2526 With the exception of the funeral attendance Haradinaj was ordered to remain in his home in Glođane Gllogjan and avoid any media or political contacts 2527 15 On 7 December 2007 the Haradinaj Defence requested Haradinaj’s provisional release during the winter court recess 2528 On 12 December 2007 the Prosecution objected to this request 2529 On 14 December 2007 the Trial Chamber granted the provisional release of Ramush Haradinaj from 21 December 2007 to 4 January 2008 2530 The Trial Chamber ordered Haradinaj to remain at his home in Priština Prishtinë under the supervision of UNMIK at all times and not to engage in any political activities 2531 The Trial Chamber further requested UNMIK to report every second day on his 2518 Decision on Lahi Brahimaj’s Interlocutory Appeal Against the Trial Chamber’s Decision Denying his Provisional Release 9 March 2006 paras 30-31 2519 Further Decision on Lahi Brahimaj’s Motion for Provisional Release 3 May 2006 paras 42-43 2520 Motion on Behalf of Ramush Haradinaj for Temporary Provisional Release 29 June 2007 2521 Prosecution’s Response to Motion on Behalf of Ramush Haradinaj for Temporary Provisional Release 11 July 2007 para 38 2522 Reply on Behalf of Ramush Haradinaj to Prosecution’s Response to Defence Motion for Temporary Provisional Release 16 July 2007 2523 Decision on Motion on Behalf of Ramush Haradinaj for Provisional Release 20 July 2007 paras 24 27 29-30 2524 Motion on Behalf of Ramush Haradinaj for Urgent Provisional Release 3 October 2007 2525 Response to Ramush Haradinaj’s Motion for Provisional Release 3 October 2007 2526 Decision on Defence Motion on Behalf of Ramush Haradinaj for Urgent Provisional Release 3 October 2007 2527 Ibid 2528 Motion on Behalf of Ramush Haradinaj for Temporary Provisional Release 7 December 2007 2529 Prosecution’s Response Opposing Haradinaj’s Motion for Provisional Release 12 December 2007 2530 Decision on Motion on Behalf of Ramush Haradinaj for Provisional Release 14 December 2007 2531 Ibid Case No IT-04-84-T 284 3 April 2008 compliance with the terms and conditions of the provisional release 2532 On 4 January 2008 Haradinaj returned to the custody of the UNDU in The Hague 16 On 7 December 2007 the Brahimaj Defence requested temporary provisional release of Brahimaj on humanitarian grounds during the Tribunal’s winter recess 2533 On 12 December 2007 the Prosecution objected to this request 2534 On 14 December 2007 the Trial Chamber granted the provisional release of Brahimaj from 21 December 2007 to 4 January 2008 2535 On 4 January 2008 Brahimaj returned to the custody of the UNDU in The Hague 17 Agreement on facts and judicial notice On 26 November 2007 the parties filed agreed facts concerning the recovery and identification of bodies as well as autopsy results 2536 On 30 November 2007 the parties filed additional agreed facts concerning the chain of custody of certain documents 2537 18 UNMIK On 12 January 2007 the Balaj Defence requested that the Trial Chamber order UNMIK to lift Rule 70 constraints over certain documents 2538 On 31 January 2007 the Prosecution opposed ordering the disclosure of the files without the consent of UNMIK the Rule 70 provider 2539 On 12 February 2007 UNMIK responded that it had already consented to the disclosure of approximately half of the files requested by the Balaj Defence and that it was in the process of reassessing whether any additional material could be released 2540 On 5 April 2007 the Prosecution informed the Trial Chamber that it had discovered three documents in the concerned files which it believed were “potentially exculpatory material” 2541 The Prosecution further informed the Trial Chamber that UNMIK had refused to consent to the disclosure of the requested 2532 Ibid pp 8-9 Motion of Lahi Brahimaj for Temporary Provisional Release during Recess Period 7 December 2007 Lahi Brahimaj’s Notice to Lift Confidentiality of His 7 December 2007 Motion 10 December 2007 2534 Prosecution’s Response Opposing Lahi Brahimaj’s Motion for Provisional Release 12 December 2007 2535 Decision on Motion on Behalf of Lahi Brahimaj for Temporary Provisional Release 14 December 2007 para 25 2536 Joint Motion on Agreed Facts 26 November 2007 2537 Joint Motion on Additional Agreed Facts 30 November 2007 2538 Submission by the Defence for Idriz Balaj to Request the Chamber to Order UNMIK to lift Rule 70 Constraints over Certain Documents 12 January 2007 2539 Prosecution’s Response to Motion by Idriz Balaj for Order to Disclose Material Protected under Rule 70 31 January 2007 2540 Submission by the United Nations Mission in Kosovo UNMIK to Motion by Defendant Idriz Balaj Requesting the Chamber to Order UNMIK to Lift Rule 70 B Confidentiality Measures 12 February 2007 paras 6-7 2541 Prosecution Report on UNMIK Rule 70 Material Subject to Rule 68 5 April 2007 para 3 2533 Case No IT-04-84-T 285 3 April 2008 files to the Defence 2542 On 19 April 2007 the Trial Chamber invited UNMIK to assign an informed representative to appear before it 2543 On 10 May 2007 the Trial Chamber held a hearing with the parties and three UNMIK representatives in which a compromise was reached involving the provision of the three documents to the Defence by UNMIK in a redacted form 2544 It was further agreed that any future request from the Defence to UNMIK would be forwarded to UNMIK through the Trial Chamber’s legal staff without the Trial Chamber reviewing the request 2545 The Defence for Balaj withdrew its motion of 12 January 2007 at the end of this hearing 2546 19 Recording of proofing sessions Following several incidents in which there appeared to have been a discrepancy between what a witness had stated in court and what the same witness had said during a proofing session with the Prosecution all three Defence teams requested that the Trial Chamber order the Prosecution to audio-record its proofing sessions 2547 On 22 March 2007 the Prosecution responded 2548 On 23 May 2007 the Trial Chamber decided not to exert its authority to order the Prosecution to audio-record its proofing sessions but instructed the Prosecution in the future to produce a supplementary statement signed by the witness which would set out any new additional or different evidence gleaned from the witness wherever practicable 2549 20 Contempt case against Shefqet Kabashi On 5 June 2007 Shefqet Kabashi appeared before the Trial Chamber as a witness but after making a solemn declaration refused to answer questions on the substance of the case 2550 On the same date the Trial Chamber issued an Order in Lieu of Indictment ordering the prosecution of Kabashi for contempt of the Tribunal 2551 The Trial Chamber decided to prosecute the matter itself and summoned Kabashi to appear before it on 7 June 2007 2552 Kabashi did not appear on the prescribed date but rather returned to the United States his country of residence 2542 Ibid para 4 Decision on Prosecution’s 5 April 2007 Request for Chamber Review of Rule 70 UNMIK Files Potentially Subject to Rule 68 19 April 2007 para 3 2544 T 3923 2545 T 3907-3911 2546 T 3925 2547 Defence Submissions on the Procedure for the Proofing of Prosecution Witnesses 22 March 2007 paras 2-3 2548 Prosecution's Written Submissions Opposing Verbatim Recording of Proofing Sessions with Witnesses 22 March 2007 2549 Decision on Defence Request for Audio-recording of Prosecution Witness Proofing Sessions 23 May 2007 2550 T 5414 et seq 2551 Order in Lieu of Indictment on Contempt Concerning Shefqet Kabashi 5 June 2007 2552 Ibid 2543 Case No IT-04-84-T 286 3 April 2008 without the Trial Chamber’s authorization On 20 November 2007 Kabashi was granted another opportunity to testify in the Haradinaj et al case and appeared before the Trial Chamber via video-conference link but again failed to answer questions on the substance of the case 2553 Kabashi was unwilling to travel to the seat of the Tribunal to appear in his contempt case On 11 December 2007 the Trial Chamber referred the case to the Prosecution to further investigate and prosecute the matter 2554 The Trial Chamber also directed the Prosecution to investigate Kabashi’s conduct from 5 June 2007 onwards as it had reason to believe that he had committed contempt on 20 November 2007 2555 The Trial Chamber informed the Prosecution that it could view the Order in Lieu of Indictment as a confirmed indictment and that it could amend or withdraw it as it deemed appropriate 2556 On 13 December 2007 the Prosecution filed an indictment against Kabashi 2557 The Prosecution requested that the Trial Chamber i confirm the new indictment ii issue a warrant for Kabashi’s arrest detention and transfer to the Tribunal and iii make the indictment public upon confirmation 2558 On 19 December 2007 the Prosecution filed an addendum in which it explained that it was seeking leave to amend the Order in Lieu of Indictment 2559 On 18 February 2008 the Trial Chamber granted the Prosecution leave to amend the indictment against Kabashi and ordered the Prosecution to make the indictment public 2560 At the time of rendering this judgement Kabashi was not in the custody of the Tribunal 21 Contempt case against Avni Krasniqi On 17 October 2007 the Prosecution applied for a subpoena to testify for Avni Krasniqi a witness who had refused to appear before the Tribunal 2561 On 19 October 2007 the Trial Chamber ordered Avni Krasniqi to appear before the Tribunal as a witness on 29 October 2007 2562 Krasniqi persisted in his refusal to testify citing fear for the safety of him and his family 2563 On 30 October 2007 the Prosecution requested the Trial Chamber to direct the Prosecution to 2553 T 10939-10941 Decision to Refer the Case to the Prosecution 11 December 2007 para 7 2555 Ibid para 7 2556 Ibid para 6 2557 Prosecution’s Submission of an Indictment Against Shefqet Kabashi 13 December 2007 Annex A 2558 Ibid para 11 2559 Prosecution’s Addendum to 13 December 2007 Motion Concerning Indictment of Shefqet Kabashi 19 December 2007 2560 Decision Granting Leave to Amend the Indictment 18 February 2008 2561 Prosecution's 22nd Application for a Subpoena ad Testificandum 17 October 2007 2562 Subpoena ad Testificandum 19 October 2007 2563 Memorandum of Service of Subpoena 29 October 2007 Order to Prosecution to Investigate with a View to Preparation and Submission of an Indictment for Contempt 31 October 2007 para 3 2554 Case No IT-04-84-T 287 3 April 2008 investigate the witness for possible contempt of the Tribunal 2564 On 31 October 2007 the Trial Chamber ordered the Prosecution to investigate the witness’s refusal to appear to testify with a view to the preparation and submission of an indictment for contempt 2565 On 2 November 2007 the Prosecution filed an indictment for contempt of the Tribunal against Avni Krasniqi 2566 The Trial Chamber confirmed the indictment on 5 November 2007 and it was made public on 9 November 2007 2567 On 12 November 2007 the Prosecution corrected the indictment 2568 The arrest warrant issued against Avni Krasniqi on 5 November 2007 was executed on 9 November 2007 and Avni Krasniqi was transferred to the seat of the Tribunal on 10 November 2007 2569 After consulting with his counsel Avni Krasniqi decided to testify in the Haradinaj et al case which he did on 14 and 15 November 2007 2570 On 15 November 2007 the Prosecution applied to withdraw the indictment against him 2571 At the end of his testimony Avni Krasniqi was informed that the Prosecution’s application was granted and that he would be immediately released once the necessary practical arrangements had been made by the Registry 2572 He was released shortly thereafter On 5 December 2007 the Trial Chamber confirmed in writing the withdrawal of the indictment 2573 22 Contempt case against Sadri Selca On 31 May 2007 the Prosecution applied for a subpoena to testify for Sadri Selca a witness who had refused to appear before the Tribunal 2574 On 1 June 2007 the Trial Chamber issued the requested subpoena 2575 Selca persisted in his refusal to testify before the Tribunal and indicated that one of his reasons not to comply with the subpoena was his medical condition 2576 On 28 June 2007 the Trial Chamber directed Selca to provide a representative of UNMIK with all 2564 Prosecution’s Acceptance of the Trial Chamber’s Invitation to Consider Initiating a Contempt Proceeding against Avni Krasniqi 30 October 2007 2565 Order to Prosecution to Investigate with a View to Preparation and Submission of an Indictment for Contempt 31 October 2007 2566 Prosecution’s Submission of an Indictment against Avni Krasniqi for Contempt 5 November 2007 2567 Decision on Review of Indictment 5 November 2007 Lifting of Confidentiality 9 November 2007 2568 Prosecution's Filing of a Corrected Indictment 12 November 2007 2569 Order for Detention on Remand 13 November 2007 2570 Decision Granting the Prosecution’s Application to Withdraw an Indictment for Contempt against Avni Krasniqi 5 December 2007 2571 Prosecution’s Application to Withdraw an Indictment for Contempt against Avni Krasniqi 15 November 2007 2572 T 10850 2573 Decision Granting the Prosecution’s Application to Withdraw an Indictment for Contempt against Avni Krasniqi 5 December 2007 2574 Prosecution’s Application for Issuance of Subpoena Witness SST 7 18 31 May 2007 2575 Subpoena ad Testificandum 1 June 2007 2576 Memorandum of Service filed by the Kosovo Police Service of UNMIK 15 June 2007 Case No IT-04-84-T 288 3 April 2008 medical records in support of his claim 2577 On 1 August 2007 UNMIK filed a report with a statement from Selca and two medical documents attached 2578 On 23 August 2007 the Trial Chamber invited the Prosecution to consider all circumstances relating to Selca and to advise the Trial Chamber whether the Prosecution should undertake a contempt investigation against him 2579 On 19 October 2007 the Prosecution requested the Trial Chamber to direct the Prosecution to investigate the witness for possible contempt of the Tribunal 2580 On 31 October 2007 the Trial Chamber directed the Prosecution to investigate the witness’s refusal to appear to testify with a view to the preparation and submission of an indictment for contempt 2581 On 7 November 2007 the Trial Chamber confirmed the indictment for contempt of the Tribunal against Sadri Selca 2582 On the same day the Trial Chamber issued an arrest warrant against Selca 2583 The indictment was made public on 13 November 2007 2584 On the same day the arrest warrant was executed and the Accused was transferred to The Hague 2585 After consulting with his counsel Selca decided to testify in the Haradinaj et al case which he did on 15 November 2007 On the same day the Prosecution applied to withdraw the indictment against Selca 2586 At the end of his testimony on 15 November 2007 Selca was informed that the Trial Chamber had decided to grant the Prosecution’s application and ordered his immediate release once the necessary practical arrangements had been made by the Registry 2587 He was released shortly thereafter On 5 December 2007 the Trial Chamber confirmed in writing the withdrawal of the indictment 2588 23 Witness 8 On 5 April 2007 the Trial Chamber suspended the cross-examination of Witness 8 inviting the parties to make submissions on whether his testimony had sufficient probative value to be continued 2589 The Prosecution submitted that the 2577 Request for Medical Reports of a Subpoenaed Witness and Request for Judicial Assistance 28 June 2007 2578 UNMIK filing 1 August 2007 2579 Invitation to Prosecution to Consider Initiating Contempt Proceedings against Sadri Selca 23 August 2007 2580 Response to Invitation in Respect of Sadri Selca 19 October 2007 para 7 2581 Order Pursuant to Rule 77 C i in Relation to Witness 18 31 October 2007 2582 Decision on Review of Indictment 7 November 2007 2583 Warrant of Arrest and Order for Surrender of Sadri Selca 7 November 2007 2584 Order on the Lifting of Confidentiality 13 November 2007 2585 Ibid 2586 Prosecution’s Application to Withdraw an Indictment for Contempt against Sadri Selca 15 November 2007 2587 T 10891 2588 Decision Granting the Prosecution’s Application to Withdraw an Indictment for Contempt against Sadri Selca 5 December 2007 2589 T 2594-2596 Case No IT-04-84-T 289 3 April 2008 evidence of Witness 8 was consistent on the critical issues on relevant counts 2590 The Defence argued that the testimony of Witness 8 was manifestly unreliable and incredible and had to be excluded from the evidence 2591 The Trial Chamber found that the witness was so lacking in reliability and credibility that it could not rely on his testimony for any findings concerning the facts alleged in the Indictment and therefore decided not to call Witness 8 back to complete his cross-examination 2592 24 Subpoena and video-conference link for Naser Lika On 25 May 2007 the Prosecution applied for a subpoena to testify for Naser Lika a witness who had refused to appear before the Tribunal 2593 On 12 June 2007 the Trial Chamber issued the requested subpoena 2594 Lika persisted in his refusal to testify before the Tribunal 2595 On 30 August 2007 the Prosecution requested the compelled testimony of Lika via video-conference link 2596 On 14 September 2007 the Trial Chamber granted the motion as it was satisfied that Lika was unable to travel to The Hague due to his medical condition 2597 However on 13 November 2007 the date scheduled for his testimony Lika again failed to appear 2598 On 15 November 2007 Lika was arrested by the Canadian authorities following his failure to comply with a Canadian order to appear at the video-conference link location The Trial Chamber again attempted to hear his testimony via video-conference link on 15 November 2007 However Lika could not be brought to the video-conference link location in time for a hearing to take place that day 2599 On 20 November 2007 the Trial Chamber granted a further application by the Prosecution to hear the testimony of Lika via video-conference link on 26 and 27 November 2007 2600 On 26 November 2007 the Prosecution informed the Trial 2590 Prosecution's Written Submission Regarding Witness 8 and Motion for Trial Chamber to Call a Witness Pursuant to Rule 98 23 April 2007 para 5 2591 Confidential Submissions on Behalf of Ramush Haradinaj in Relation to the Testimony of Witness 8 24 April 2007 paras 5 21-25 27 30 Confidential Submissions on Behalf of Idriz Balaj in Relation to the Testimony of Witness 8 25 April 2007 paras 16-17 Confidential Submissions on Behalf of Lahi Brahimaj in Relation to the Testimony of Witness 8 26 April 2007 paras 10 17-19 2592 Decision on Whether to Resume Hearing Testimony of Witness 8 and Call Chamber Witness 20 June 2007 2593 Prosecution's Application for Issuance of Subpoena 25 May 2007 2594 Subpoena ad Testificandum 12 June 2007 2595 Memorandum of Service of 16 June 2007 20 June 2007 T 6171 6390 2596 Prosecution’s Motion for an Order for Compelled Testimony via Video Link 30 August 2007 2597 Decision on Motion for Videolink Witness 30 14 September 2007 2598 T 10621-10624 10628 10635 2599 T 10631-10632 10640-1646 10762 10876 10892-10893 2600 Prosecution’s Application to Hear Testimony of Witness 30 by Video Link on Wednesday 21 November 2007 16 November 2007 T 10954-10956 Case No IT-04-84-T 290 3 April 2008 Chamber that Lika had been hospitalized and that he was unable to testify 2601 The Trial Chamber was informed that it would be another seven to ten days before an assessment could be made as to when Lika would be able to testify well beyond the already extended time allocation for the presentation of the Prosecution case 2602 Naser Lika never testified 2603 25 Final briefs and closing arguments On 30 November 2007 considering that the Prosecution case had closed and having received a notification from all Defence teams that they would neither make submissions pursuant to Rule 98 bis of the Rules nor call any witnesses the Trial Chamber issued the scheduling order for final trial briefs and closing arguments 2604 The order set out the requirements and the deadline for the final trial briefs which were filed on 14 January 2008 2605 The closing arguments were held on 21 22 and 23 January 2008 2606 On 28 March 2008 the Trial Chamber issued a scheduling order for rendering the judgement on 3 April 2008 2607 2601 T 10975 T 10975 2603 T 10975 2604 Scheduling Order for Final Trial Briefs and Closing Arguments 30 November 2007 2605 Prosecution’s Final Brief 14 January 2008 Final Brief on Behalf of Ramush Haradinaj 14 January 2008 Final Brief on Behalf of Lahi Brahimaj 14 January 2008 Idriz Balaj’s Final Brief 14 January 2008 2606 T 11027-11262 2607 Scheduling Order for the Pronouncement of Judgement 28 March 2008 2602 Case No IT-04-84-T 291 3 April 2008 B Table of cases with abbreviations ICTY cases unless otherwise indicated Aleksovski Appeal Judgement Prosecutor v Zlatko Aleksovski Judgement on appeal 24 March 2000 Babić Appeal Sentencing Judgement Prosecutor v Milan Babić Judgement on Sentencing Appeal 18 July 2005 Blaškić Appeal Judgement Prosecutor v Tihomir Blaškić Judgement on appeal 29 July 2004 Blagojević and Jokić Trial Judgement Prosecutor v Vidoje Blagojević and Dragan Jokić Judgement 17 January 2005 Appeal Judgement Prosecutor v Vidoje Blagojević and Dragan Jokić Judgement on appeal 9 May 2007 Banović Sentencing Judgement Prosecutor v Predrag Banović Judgement 28 October 2003 Bralo Sentencing Judgement Prosecutor v Miroslav Bralo Judgement 7 December 2005 Brđanin Trial Judgement Prosecutor v Radoslav Brđanin Judgement 1 September 2004 Appeal Judgement Prosecutor v Radoslav Brđanin Judgement on appeal 3 April 2007 Čelebići Trial Judgement Prosecutor v Zejnil Delalić Zdravko Mucić Hazim Delić and Esad Landžo Judgement 16 November 1998 Appeal Judgement Prosecutor v Zejnil Delalić Zdravko Mucić Hazim Delić and Esad Landžo Judgement on appeal 20 February 2001 Češić Sentencing Judgement Prosecutor v Ranko Češić Judgement 11 March 2004 Deronjić Sentencing Judgement Prosecutor v Miroslav Deronjić Judgement 30 March 2004 Appeal Sentencing Judgement Prosecutor v Miroslav Deronjić Judgement on appeal 20 July 2005 Erdemović Sentencing Judgement Prosecutor v Dražen Erdemović Judgement 29 November 1996 Furundžija Trial Judgement Prosecutor v Anto Furundžija Judgement 10 December 1998 Appeal Judgement Prosecutor v Anto Furundžija Judgement on appeal 21 July 2000 Galić Appeal Judgement Prosecutor v Stanislav Galić Judgement on appeal 30 November 2006 Hadžihasanović and Kubura Trial Judgement Prosecutor v Enver Hadžihasanović and Amir Kubura Judgement 15 March 2006 Halilović Trial Judgement Prosecutor v Sefer Halilović Judgement 16 November 2005 Case No IT-04-84-T 292 3 April 2008 Jelisić Trial Judgement Prosecutor v Goran Jelisić Judgement 14 December 1999 Appeal Judgement Prosecutor v Goran Jelisić Judgement 5 July 2001 Jokić Trial Sentencing Judgement Prosecutor v Miodrag Jokić Sentencing Judgement 18 March 2004 Appeal Sentencing Judgement Prosecutor v Miodrag Jokić Judgement on Sentencing Appeal 30 August 2005 Kamuhanda Appeal Judgement Prosecutor v Jean de Dieu Kamuhanda Judgement 19 September 2005 ICTR Kayishema and Ruzindana Appeal Judgement Prosecutor v Clément Kayishema and Obed Ruzindana Judgement 1 June 2001 ICTR Kordić and Čerkez Appeal Judgement Prosecutor v Dario Kordić and Mario Čerkez Judgement on appeal 17 December 2004 Krajišnik Trial Judgement Prosecutor v Momčilo Krajišnik Judgement 27 September 2006 Krnojelac Trial Judgement Prosecutor v Milorad Krnojelac Judgement 15 March 2002 Appeal Judgement Prosecutor v Milorad Krnojelac Judgement on appeal 17 September 2003 Krstić Appeal Judgement Prosecutor v Radislav Krstić Judgement on appeal 19 April 2004 Kunarac et al Appeal Judgement Prosecutor v Dragoljub Kunarac Radomir Kovač Zoran Vuković Judgement on appeal 12 June 2002 Kupreškić et al Appeal Judgement Prosecutor v Zoran Kupreškić Mirjan Kupreškić Vlatko Kupreškić Drago Josipović and Vladimir Šantić Judgement on appeal 23 October 2001 Kvočka et al Trial Judgement Prosecutor v Miroslav Kvočka Milojica Kos Mlađo Radić Zoran Žigić and Dragoljub Prcać Judgement 2 November 2001 Appeal Judgement Prosecutor v Miroslav Kvočka Mlađo Radić Zoran Žigić and Dragoljub Prcać Judgement on appeal 28 February 2005 Limaj et al Trial Judgement Prosecutor v Fatmir Limaj Haradin Bala and Isak Musliu Judgement 30 November 2005 Appeal Judgement Prosecutor v Fatmir Limaj Haradin Bala and Isak Musliu Judgement 27 September 2007 Slobodan Milošević Rule 98 bis Decision Prosecutor v Slobodan Milošević Decision on Motion for Judgement of Acquittal 16 June 2004 Martić Trial Judgement Prosecutor v Milan Martić Judgement 12 June 2007 Mrđa Sentencing Judgement Prosecutor v Darko Mrđa Judgement 31 March 2004 Mrkšić et al Trial Judgement Prosecutor v Mile Mrkšić Miroslav Radić and Veselin Šljivančanin Judgement 27 September 2007 Case No IT-04-84-T 293 3 April 2008 Naletilić and Martinović Appeal Judgement Prosecutor v Mladen Naletilić and Vinko Martinović Judgement 3 May 2006 Dragan Nikolić Appeal Sentencing Judgement Prosecutor v Dragan Nikolić Judgement 4 February 2005 Momir Nikolić Sentencing Judgement Prosecutor v Momir Nikolić Judgement 2 December 2003 Appeal Sentencing Judgement Prosecutor v Momir Nikolić Judgement 8 March 2006 Orić Trial Judgement Prosecutor v Naser Orić Judgement 30 June 2006 Simić et al Appeal Judgement Prosecutor v Blagoje Simić Miroslav Tadić and Simo Zarić Judgement on appeal 28 November 2006 Stakić Trial Judgement Prosecutor v Milomir Stakić Judgement 31 July 2003 Appeal Judgement Prosecutor v Milomir Stakić Judgement on appeal 22 March 2006 Strugar Trial Judgement Prosecutor v Pavle Strugar Judgement 31 January 2005 Tadić Jurisdiction Decision Prosecutor v Duško Tadić “Decision on Defence Motion for Interlocutory Appeal on Jurisdiction” 2 October 1995 Trial Judgement Prosecutor v Duško Tadić Judgement 7 May 1997 Appeal Judgement Prosecutor v Duško Tadić Judgement on appeal 15 July 1999 Appeal Sentencing Judgement Prosecutor v Duško Tadić Judgement 26 January 2000 Vasiljević Appeal Judgement Prosecutor v Mitar Vasiljević Judgement on appeal 25 February 2004 Zelenović Trial Sentencing Judgement Prosecutor v Dragan Zelenović Sentencing Judgement 4 April 2007 Case No IT-04-84-T 294 3 April 2008