Although the verdict is founded on evidence, it has not brought justice for the victims

On the occasion of the acquittal by the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the partial re-trial in Haradinaj et al, the Humanitarian Law Center (HLC) holds that neither the initial trial nor the partial re-trial in this case have brought justice to the victims of the crimes listed in the indictments. In addition, this procedure has been particularly burdened by a number of deficiencies with regard to witness protection and  lack of professionalism of investigators in gathering evidence.

The original indictment, from 2005, charged the members of the Kosovo Liberation Army (KLA), Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj for  crimes against humanity and violations of the laws or customs of war – dozens of killings, torture and cruel mistreatment,  rape – that members of the KLA committed in the period between March and September 1998 in western Kosovo. According to the indictment, the indictees were members of a joint criminal enterprise (JCE) with the aim to establish full KLA control over  western Kosovo, i.e. over the Dukagjin operational zone, which included Pec/Pejë, Decani/Deçane, Djakovica/Gjakovë and parts of the municipalities of Istok/Istoq and Klina/Klinë. At that time, Haradinaj was commanding the KLA operational zone of Dukagjin, Balaj – commander of the special KLA unit The Black Eagles, and Brahimaj was KLA commander of the camp in the village of Jablanica/Jabllanicë in the municipality of Djakovica/Gjakovë. All three were charged under Article 7 (1) of the ICTY Statute, on the grounds of personal responsibility. The indictment did not charge the defendants under Article 7 (3) of the Statute of the ICTY, that is to say, on grounds of command responsibility.

In 2008, the ICTY Trial Chamber passed a judgment which dismissed the charges against Haradinaj and Balaj, acquitting them of criminal responsibility, while Brahimaj was sentenced to six years in prison for cruel treatment and torture of detainees at the camp in the village of Jablanica/Jabllanicë. The Chamber found that members of the KLA were responsible for 12 murders, seven cases of torture/cruel treatment and one rape, but could not establish the criminal responsibility of the defendants for these crimes. The Chamber faced three major problems in the presentation of evidence, and consequently in determining the criminal responsibility of the defendants:

1. A number of former members of the KLA, so-called insider witnesses, refused to testify, citing as their reason fear for their personal safety.
2. Unreliable witnesses and unverifiable documents, including witnesses from the Serbian Ministry of the Interior (MUP), as well as documents submitted by the Republic of Serbia to the ICTY Prosecutor. The Chamber found that certain witness statements about KLA crimes in 1998 obtained by the Serbian MUP were unacceptable, because the police had obtained them from  Kosovo Albanian witnesses by illegal methods – blackmail and beatings.
3. Failure of the ICTY Prosecutor’s Office to investigate the crimes adequately; especially its neglect of instructions on how to identify persons by way of photo-panels, which is why the Chamber dismissed certain evidence obtained in this way.

The Chamber did not accept the allegations in the indictment as to the existence of a JCE, the goal of which was “to consolidate full control over the KLA operational zone of Dukagjin by unlawful removal and mistreatment of Serbian civilians, as well as through abuse of ethnic Albanians and Roma/Egyptian communities in Kosovo, and of other civilians who were complicit or considered to have collaborated with Serb forces or were otherwise unsupportive of the KLA.” The Chamber stated that the Prosecution had presented little direct evidence of the existence of a JCE, and that the evidence presented by the crimes constituted indirect evidence, insufficient to conclude that the defendants had a common JCE purpose.

In 2010, the ICTY Appeals Chamber rendered a judgment that partially reversed the Trial Chamber’s initial judgment and returned the case for retrial. The reasons for the partial retrial were precisely the problems with regard to the fear of potential witnesses to testify. The Appeals Chamber concluded that “the Trial Chamber failed to take adequate steps to curb the witness intimidation that marked the trial from its beginning to its end.”

In the retrial, Haradinaj, Balaj and Brahimaj were tried for the crimes committed in the  Jablanica/Jabllanicë camp – the killing of eight people, as well as the cruel treatment and torture of seven people. This indictment did not charge the defendants with crimes against humanity, but only for violations of the laws or customs of war.

In the retrial, the new Trial Chamber was faced with the same problems in the presentation of evidence that the original Trial Chamber had experienced. Thus, the witness Shefqet Kabashi, who was a member of the KLA in 1998, refused to testify, stating that witnesses of the crimes in Jablanica/Jabllanicë “were killed or went missing.” Some other members of the KLA who testified gave conflicting statements about the crimes listed in the indictment, and about the defendants’ involvement in those crimes.

During the re-trial, Bislim Zyrapi testified on the role of Ramush Haradinaj. In 1998, Zyrapi served as Chief of the General Staff of the KLA. He testified that Haradinaj had under his control the operational zone of Dukagjin, and that the second and third defendants, Idriz Balaj and  Lahi Brahimaj, were subordinate to him. This testimony differed from the testimonies of the majority of other KLA members, who claimed before the court that Haradinaj was highly esteemed among KLA fighters, but did not have the  right to issue orders to other soldiers in this operational area, and that all decisions of the KLA in this zone were made collectively.

According to the HLC’s data pertaining to the period March-September 1998 on the territory of the municipalities of Pec/Pejë, Decani/Deçane, Djakovica/Gjakovë, Klina/Klinë and Istok/ Istok, which were controlled by the KLA, 41 civilians were killed or went missing, while 64 members of the MUP and the Yugoslav Army died in clashes with the KLA, along with five others who were not killed during actual combat. These results should be set against the fact that in the original trial the court found that members of the KLA in the same territory committed 12 murders, seven crimes of torture/cruel treatment, and one rape. On the other hand, courts in Kosovo have so far rendered only one judgment of conviction against a KLA member,  for the murder of one person, in the trial  for the crimes committed in the Dukagjin area in 1998.

The aforesaid facts impose an obligation on the Kosovo judicial authorities to prosecute members of the KLA who committed crimes, in order to bring satisfaction to victims, establish the rule of law in Kosovo and break with the culture of impunity and  “silence” concerning the crimes committed by the KLA.