Milosevic Transcript 2005-03-10

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Thursday, 10 March 2005

[Open session]

[The accused entered court]

--- Upon commencing at 12.08 p.m.

JUDGE ROBINSON: Mr. Nice.

MR. NICE: Your Honour, I've asked for the witness to be kept out briefly. I don't need, at the moment, private session. I have distributed in advance a witness statement of an investigator made yesterday. The topic is again both the protection afforded for someone identified in the report of the witness to which he's already referred.

JUDGE ROBINSON: Mr. Milosevic.

THE ACCUSED: [Interpretation] I'm not receiving any interpretation, nothing. I'm on the right channel, but there's no interpretation coming through.

JUDGE ROBINSON: Could that be investigated.

THE ACCUSED: [Interpretation] Could you check it out, now, please? Could somebody say something so I can hear whether the channel is working.

JUDGE ROBINSON: Is it working?

THE ACCUSED: [Interpretation] Nothing coming through, nothing. I can hear the interpretation now. I'm getting it. Yes, thank you.

JUDGE ROBINSON: Okay. Let's proceed.

MR. NICE: I will repeat what I started with, Your Honour. I've asked for the witness to be kept out briefly. I don't need, at the moment, private session. I have distributed in advance a witness ³⁷²³³ statement of an investigator made yesterday. The topic is again both the protection afforded for someone identified in the witness -- in the report of the witness to which he's already referred and indeed the admissibility of material concerning that person. The reference is, I think, to page 127 of the report, and I observe something that I omitted to observe yesterday: That I think the report is itself entirely public so the written version of the material has already been publicly available. The inquiries made yesterday following the granting of protective measures were made by telephone, it being clarified with the Court that there was no restraint on our attempting to contact the people identified. The investigator concerned pursued the identified two people at random in the sense there was no choice between one or the other of the two people referred to on page 127 for whom protective measures were sought. We were able to get through to one but not to the other. The person to whom we were able -- with whom we were able to make contact explained to the investigator that he had been in Belgrade at the time this interview took place, that there were many interviews that he perceived as being conducted for propaganda purposes. He does remember one in the English language. He explained how at the time of the interview, as well as the presence of the other of the two men referred to yesterday for protective measures purposes there were also plain-clothed Serbian Interior Ministry police officers.

I turn over the page of the two-page statement. He went on further to explain that he would have responded to all questions in the manner that would have been expected of him by the Belgrade authorities ³⁷²³⁴ who approved the interview in the first place and would in no way have criticised the Serbian government.

Without recalling this witness as an interviewer specifically, the person we contacted yesterday said it is unlikely that he meant what was said within the interview because he was always mindful of family concerns he had and that he amplifies in the statement, observing also that because he was in Belgrade where negative statements towards the government or in support of NATO would have led to his suffering serious harm operated on his mind.

Asked if he'd been approached to testify in this case, he said that he had not. And then on the question of disclosure by which is meant publicity given to evidence about his interview, he said this, on the basis that it is indeed he who was speaking to Mr. Lituchy: While he had no objections, he would prefer that the material was disclosed in closed session as it is unlikely that he would now stand by the statements made in the interview.

Dealing with protective measures and admissibility in that order, what I suggested yesterday is entirely reinforced by the inquiries that we've made. There are great dangers in having material of this kind used in closed-session testimony, for if it's in error, there is absolutely no stimulus to the person concerned identifying the error as he might have done were he to learn about it and correcting it, and in the absence of our being able to contact the person and establish the error, the position would remain completely uncorrected.

Dealing with admissibility, on the basis of this material ³⁷²³⁵ available to us and bearing in mind the distinction between material contained in this type of interview and the much more rudimentary type of material contained in other interviews with refugees and the like, if this evidence goes in, the following extraordinary position will be achieved in what is still --

JUDGE ROBINSON: Mr. Nice, what is your -- what is your application? We made a decision yesterday.

MR. NICE: Your Honour, I'm asking you please to reconsider it on two grounds, in light of the material available. First on the question of protective measures and second on the basis of admissibility. And I'm sorry I was going too quickly. I'm always anxious about the time administrative matters take.

If this material goes in as on page 127 and subsequently, the following position in an essentially adversarial proceeding will have been achieved: One, the evidence in chief, as it were, will come secondhand in the form of answers given to this interview and I will not be able to cross-examine the witness or the person; two, the only way that I will be able to deal with it and correct it will be to call the person upon whom the accused relies and then the accused will be able to cross-examine him. So my invitation to the Chamber -- I'm sorry I didn't make this absolutely plain --

JUDGE ROBINSON: That's also a consequence of the adversarial system.

MR. NICE: Well, Your Honour, it's a consequence of the adversarial system, but throughout the discussions of this type of ³⁷²³⁶ material, Mr. Kay, for example, has been advancing that such material should be excluded where it's important and where there is no opportunity to cross-examine the maker of the statement. Now, if this is important material going to the defendant's -- to the accused's defence, on that principle the Prosecution should be in a position to cross-examine the maker of the statement. I won't be able to do so.

JUDGE ROBINSON: That's Mr. Kay's position. The decision of the Chamber has not been specifically informed by that position.

MR. NICE: Your Honour, all I can do in these circumstances is that which in our submission the accused himself should have done, which is to contact, where possible, people of this kind upon whom he relies. He hasn't; we have. The material now provided to you shows, one, that there is no ground, in our respectful submission, to justify protective measures; the reverse. We can look at the details of that, if necessary, in a minute but it is covered by Rule 75 and 79. And two, that in light of what we now know - and this wasn't available to the Chamber yesterday, of course - the question of admissibility of this part of the record in any event might be reconsidered.

JUDGE ROBINSON: Thank you.

[Trial Chamber confers]

JUDGE ROBINSON: The Chamber will not reconsider its decision. We'll proceed with the witness.

THE ACCUSED: [Interpretation] Mr. Robinson, may I be allowed to say something with respect to what Mr. Nice said?

JUDGE ROBINSON: Not in relation to that. When your witness comes ³⁷²³⁷ in, then you can question the witness. We have lost enough time.

[The witness entered court]

WITNESS: BARRY LITUCHY [Resumed]

JUDGE ROBINSON: Mr. Milosevic, you are to --

THE WITNESS: Your Honour, may I address the Court for a moment, please?

JUDGE ROBINSON: What do you wish to address the Court on?

THE WITNESS: Well, I wish to raise an issue about something that happened yesterday that concerns me about my testimony that may have compromised my testimony. I was not allowed to complete the answers to several questions, particularly the last question that was addressed to me about the findings of my -- of the interviews that we did, and I'm worried that that may, in the end, compromise the testimony I've -- I'm trying to bring here.

JUDGE ROBINSON: Yes, briefly.

THE WITNESS: Briefly, the first and most important finding of our inquiry or our interviews of the Albanian refugees was that they all agreed that crimes of genocide, based on the definition of crimes of genocide in the United Nations Convention, were committed against Albanians and that this was evidence of the very worst types of criminal actions against the Albanian population committed in Kosovo. And --

JUDGE ROBINSON: That's not going to be helpful to us, that finding.

THE WITNESS: No? ³⁷²³⁸

JUDGE ROBINSON: No, not at all. I mean, that will be a matter for us to find as a matter of law. So the fact that they agreed that genocide was committed is neither here nor there.

THE WITNESS: There was one other -- just one other thing that I wanted to say.

JUDGE ROBINSON: Yes.

THE WITNESS: And that was that the information in the interviews did deal with events that occurred before 1999, including the killing of Albanians by the KLA, such as one of the interviewees' father, and I wanted to raise that point as well.

JUDGE BONOMY: I tried yesterday to explain to you, Mr. Lituchy, that it's not you that brings evidence here, it's Mr. Milosevic that brings evidence, and unfortunately perhaps from your perspective, you're a tool in the presentation of a case. It's not for you to control what actually happens here.

JUDGE ROBINSON: Yes, Mr. Milosevic, continue. Examined by Mr. Milosevic: [Continued]

Q. [Interpretation] Mr. Lituchy, I'm going to ask you a question now which we elaborated on yesterday but which I would like to ask you again for an important reason. Yesterday, you said that nobody in the government of the Republic of Serbia or Yugoslavia took part either in the organisation of your talks and interviews nor neither did they attend any of your interviews; is that correct?

A. Yes. Yes, that's correct.

Q. Thank you. Now, before we move on and play the tape, I'm going to ³⁷²³⁹ ask you a few questions about the first Albanian testifying on the tape, person number 1 whom we're going to see in several of the excerpts. Tell us, please, what did the KLA -- yes, what did the KLA do to person number 1?

A. Well, the first thing that he mentioned was that he was hunted like an animal. They -- they sought him out. The KLA was trying to hunt him down, going from place to place with photographs of him in an effort to execute him. We asked him -- we asked him how he escaped. He escaped with his family with the help of a military escort. He -- he -- I asked him if they were continuing to try to -- if there -- if there was a death warrant out on him or if there was an attempt to kill him, and he replied that, "If they find me, they will kill me."

Q. In the interview, did he mention that there were examples of them having killed someone from his group, for instance, or some of his -- the people that thought like him politically?

A. Yes. Well, that was consistent with all the interviews of the Albanians, that they -- Albanian interviewee number 1 said that one of the members of his political party had been captured. At that time, I guess, he wasn't aware of whether he had been killed or not. I believe that man's name was Cuka.

Q. And how did he know and how do you know now that the KLA -- UCK or KLA, was still looking for him?

A. Well, he told me that -- that if they find him, they will kill him.

Q. Did you ask him how many Albanians were forced to leave Kosovo ³⁷²⁴⁰ under pressure from the KLA? Did he tell you anything about that? Did he know anything about that?

A. He said -- he spoke specifically about his own political party. He didn't -- I don't think -- I'm not sure if he -- I can't recall now whether he said how many Albanians in total left because of the KLA, but he spoke specifically about his own political party, and he -- he said 20.000 were forced to flee because of the KLA. From his party.

Q. And what did he say he knew about the KLA? What was it he knew about them? Did you ask him about that, about the KLA? And what did he tell you about the KLA?

A. Yes, yes. I asked him about the KLA, about its origins, about its leadership, about its aims, and in reply to that, he -- he mentioned some of the names of the leaders of the KLA such as Thaci and Demaci. He mentioned that the KLA had been formed outside of Kosovo by -- by -- with foreign aid and that it had -- its aim was a secessionist movement and to use terrorism to achieve that end, and he -- I believe it was the first -- the first Albanian interviewee, but it may also have been the third who said that they were funded by the intelligence services of the United States and Germany. And of course we -- we believed what he had to say because this was someone who was very knowledgeable about the situation in Kosovo, as was all three of these gentlemen.

JUDGE KWON: Mr. Lituchy, the interview took place some six years ago.

THE WITNESS: Yes.

JUDGE KWON: How are you able to remember all these in such ³⁷²⁴¹ detail?

THE WITNESS: Your Honour, the interviews were edited -- I'm sorry. They were video taped. They were not edited. They were not censored, they were not cut. They were videotaped in their entirety and our nonprofit organisation paid for the cameramen to do this, and we then produced a transcript based on the translations that were available at that time in early 2000, and we published the transcript of those videotaped interviews.

JUDGE KWON: So you read the transcript recently.

THE WITNESS: Of course. I produced -- I -- I co-edited the -- the transcripts, yes.

JUDGE KWON: Thank you.

JUDGE BONOMY: Could I ask that we go into private session just for a moment for one question.

[Private session]

(redacted)

(redacted) ³⁷²⁴²

[Open session]

MR. MILOSEVIC: [Interpretation]

Q. Mr. Lituchy, what was it that this man, interviewee number 1, told you about the position of the Albanians and the rights of Albanians in Kosovo and Metohija before the outbreak of the war in 1999? Or, rather, not immediately before but the whole period up until the war in Kosovo and Metohija in 1999.

A. I can't remember now exactly the question that I -- I posed to the interviewee number 1, but I won't -- I won't go back and look at it. What -- the answer -- I remember the answer, though, and the answer was -- oh, I think the question that I posed was, Why did Albanians such as them want to live in Yugoslavia? And the answer he gave was a twofold answer: First that Yugoslavia was his country, his state, and he wanted to live in a multinational society. He wanted to live in a society where the democratic rights of all nations were protected, a multi-confessional society. He didn't want to live in a uni -- an ethnically cleansed or uni-national, pure -- pure Albanian society.

Secondly, he replied he didn't want to live under the KLA. In fact, all three of the interviewees made this perfectly clear that not only did they not want to live under the authority of the KLA, but they could not live under the authority of the KLA, that the KLA was the worst possible thing in the world for the Albanian people. That is, I think, abundantly clear in every answer that they gave to every question.

Q. Mr. Lituchy, the Albanian living in Kosovo today, regardless of what we specify as to what he -- the KLA is doing in Kosovo today, can he ³⁷²⁴³ be considered a free man, able to freely state what he wishes? Not freely just like that, but without real danger to his life and his family's life?

MR. NICE: Is that a sort of question that this witness is able to give -- if that's the sort of answer that the Chamber is happy to accept, of course I shan't take the matter further but it seems to me wildly general and it's about present-day circumstances. This witness is going a great deal further than just narrating what is apparently going to be revealed in the interviews. He's now giving the most general answers. If that's what the Chamber is happy with, I shan't take any more of your time but I would invite you to approach these questions with caution.

[Trial Chamber confers]

JUDGE ROBINSON: We disallow the question, Mr. Milosevic, and I recollect that you were going to play a video. Why don't you proceed to the video, because these matters, I think, are covered by the video.

THE ACCUSED: [Interpretation] Very well. Very well, Mr. Robinson. Yes, may we have the tape played. But in order to identify -- or, rather, we covered these questions in an open session. Now, on the video you can see that all this is correct. But in order to protect the identity of the witness we're going to have it shown in closed session, that is to say that the identity is preserved.

JUDGE ROBINSON: Private session, rather. I understand there is a technical problem.

[Trial Chamber confers]

JUDGE ROBINSON: Because the monitors can be seen from the public gallery, we will have to draw the blinds. ³⁷²⁴⁴

THE REGISTRAR: Closed session?

JUDGE ROBINSON: Closed, yes.

[Closed session]

(redacted)

(redacted) ³⁷²⁴⁵ Pages 37245-37273 redacted. Closed session.

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(redacted)

--- Whereupon the hearing adjourned at 1.43 p.m., ³⁷²⁷⁵ to be reconvened on Monday, the 14th day of March, 2005, at 9.00 a.m.