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Table of Contents International Tribunal for the UNITED Case No. IT-04-84-T Prosecution of Persons Responsible for NATIONS Serious Violations of International Date: 3 April 2008 Humanitarian Law Committed in the Territory of the Former Yugoslavia Original: English since 1991 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 Ben Emmerson, QC Mr Gramsci di Fazio Mr Rodney Dixon Mr Gilles Dutertre Ms Susan L. Park Mr Philip Kearney 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 68 5.1 Crimes 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 276 9.4 Determination of sentence 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.
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