Institute for War and Peace Reporting | Giving Voice, Driving Change

Prosecutors Want Former Kosovan Premier Retried

Both defence and prosecution team appeal over cases of KLA leaders.
By Julia Hawes
Hague prosecutors this week called for a re-trial in the case of former Kosovan prime minister Ramush Haradinaj, acquitted of war crimes charges in April 2008.

Haradinaj and fellow Kosovo Liberation Army, KLA, leader Idriz Balaj were found not guilty of involvement in a joint criminal enterprise aimed at the removal and mistreatment of Serb civilians, as well as suspected Kosovar Albanian collaborators, in 1998.

Their co-defendant Lahi Brahimaj was found guilty on the basis of individual criminal responsibility for cruel treatment and torture, and was sentenced to six years in jail.

But this week, the Office of the Prosecution, OTP, appealed the chamber’s decision to acquit Haradinaj and Balaj following their three-year trial.

In response, defence lawyers representing all three men argued that there had been inconsistencies in testimonies by the OTP witnesses.

Brahimaj’s defence counsel told judges that they sought to reverse his conviction on counts of torture and cruel treatment, and seek a reduction of the six-year sentence on 19 grounds of appeal.

According to the indictment, KLA forces under the control of commander Haradinaj harassed, beat and drove Serb and Roma civilians out of villages, and killed those who remained behind or refused to leave.

Brahimaj’s appeal cited the failure by the OTP to prove that he had served as a deputy commander for the KLA, or that he had committed acts of torture in the presence of low-ranking soldiers.

Defence attorney Richard Harvey argued that any convictions based on the testimonies made by Witnesses 3 and 6 during the trial were unsafe, due to inconsistencies and lack of credibility.

Witness 6 was a “mere farmer” who denied having ever been in the police reserve, Harvey said. Witness 6 told the court that the KLA had targeted him for being a spy for the Serbian police.

When the witness was stopped by the KLA, he was carrying a Serbian-issued pistol, Harvey told the judges, which he alleged was highly suspect. He was also driving a Mercedes, a fact that seemed peculiar for a self-proclaimed “mere farmer”, Harvey said.

Harvey added that there were “irreconcilable contradictions” between Witnesses 6 and 3, who described their detainment and cruel treatment under the KLA in 1998.

“Why did the trial chamber prefer one account over the other, when they contradicted the other?” Harvey asked the judges. “This verdict is not justified by the evidence. These convictions must be regarded as unsafe.”

In response, the OTP described Brahimaj’s “vicious and sadistic behaviour” towards the witnesses while they were detailed by the KLA.

“Brahimaj tortured Witness 6 for his alleged involvement with Serb authorities and [his] political affiliation,” prosecutor Peter Kremer told the judges.

In his testimony on June 4, 2007, Witness 6 named Brahimaj as his attacker, Kremer added.

Harvey argued that the “alleged injuries” of witness 6 were uncorroborated, and never supported by medical records or evidence of medication.

Brahimaj has already served two-thirds of his sentence. Having been granted provisional release by the chamber, Harvey said, Brahimaj was studying sociology and English language at Pristina University, where he also hoped to earn a law degree in order to battle corruption.

“[Brahimaj] is proud of the part he played in fighting for his country’s independence and in resisting torture, cruelty and oppression his people had suffered,” Harvey told the judges. “He has always upheld highest standards of military professionalism, respected right of all humans, to be without discrimination on grounds of political belief, ethnicity, gender, socioeconomic standing, or age.”

In their appeal, the OTP called for a right to a fair trial, in which all steps would be made to secure testimonies of two crucial witnesses.

Kremer said that the trial chamber had breached the OTP’s right to a fair and expeditious trial, citing evidence of witness intimidation that he said had “infected the trial”.

“Witnesses with relevant and probative evidence refused to testify because of a fear of consequences,” Kremer said.

Kremer asked the chamber to consider alternative ways to receive the witness’ evidence, which he claimed would have affected the outcome of the trial. The testimonies, Kremer said, showed that Haradinaj was present at the beating of KLA detainees, and that Balaj was directly responsible for physically attacking the prisoners.

Kremer argued that the chamber had been intent on achieving an expeditious trial rather than a fair one.

Judge Patrick Robinson said that it was “astonishing” that the OTP had not made a special submission for the acceptance of the witness’ written testimonies, despite their refusal to testify in front of the court.

“The chamber was so hostile towards the prosecution’s attempts to have these witness testimonies heard because they wanted to be finished with the trial,” Kremer responded, adding that he had tried and failed to submit the witness’ original statements provided by investigators as corroborative evidence. “Further attempts would have been futile,” Kremer added.

“The prosecution never made the motion,” Judge Theodor Meron said in response.

Ben Emmerson, Haradinaj’s defence attorney, said that the prosecution’s submissions were “fundamentally misconceived” and “factually selective”. He added that the chamber had given the OTP opportunities to produce testimonies.

“[This is] a pointless retrial,” Emmerson told the judges.

The OTP also called for a retrial in Balaj’s alleged rape of Witness 61 and cruel treatment of Witness 1, a married couple held in the KLA headquarters. The wife, Witness 61, was raped and interrogated, the prosecution said, while her husband was held in a well outside.

The prosecution said that Witness 61 had identified her rapist as “Toger”, or lieutenant, Balaj’s nickname.

Defence attorney Colleen Rohan responded that Witness’ 61 rape was not in dispute, simply the identification of her assailant. She argued that the chamber had found “reasonable doubt” in Witness 61’s identification of Toger as her attacker.

Rohan also argued that while Witness 1’s ordeal had been unpleasant, it did not constitute as “cruel treatment”, a title she assigned to such cruelties as forced labour and shelling of civilian villages.

In response, the OTP said that by forcefully removing Witness 1 from his home, separating him from his wife, and placing him in water to his waist without any inkling of his own fate or that of his wife constituted as cruel treatment.

The witness did not know whether the well would become his grave, the prosecution said, even as his wife was being interrogated and raped in the KLA headquarters.

Julia Hawes is an IWPR contributor in The Hague.