By Shirley Cloyes DioGuardi
After languishing in prison for almost two years with the duration and outcome of his partial retrial unknown, Ramush Haradinaj is about to be released from prison temporarily by the The International Criminal Tribunal for the Former Yugoslavia (ICTY). The Appeals Chamber made this decision after the Prosecution rested its case last month in the partial retrial of Haradinaj and his co-defendants, Lahi Brahimaj and Idriz Balaj, and after the Chamber held a status hearing on May 2. At the status hearing, the judges also decided to hear closing arguments from the Defense on June 25 and 26, in advance of which Haradinaj will be returned to The Hague.
Ramush Haradinaj, the former Prime Minister of Kosovo and a well-respected Kosova Liberation Army commander, was acquitted of all war crimes charges before the ICTY in 2008.
In an unprecedented turnaround, Haradinaj was rearrested in July 2010, after the Appeals Chamber convinced the Tribunal that a partial retrial was in order—purportedly because the Prosecution did not have enough time to persuade two crucial witnesses to testify. This made Haradinaj the first defendant since the ICTY was established in 1993 to have his acquittal on all charges overturned.
In December 2010, Haradinaj was denied provisional release by the Appeals judges at the ICTY to be with his wife, Anita Mucaj, when she gave birth to their third child in January 2011. (Surprisingly, presiding Judge Patrick Robinson, who had partially dissented against the retrial, argued that Haradinaj might take advantage of his release to intimidate witnesses.) Haradinaj’s partial retrial began on August 18, 2011. It was halted shortly thereafter and resumed on February 13, 2012—only to be abruptly halted once again when one of the Prosecution’s key witnesses, a protected witness, failed to appear in court.
Although the decision to grant Haradinaj provisional release is a salutary one, I nevertheless believe that it is time to revisit Haradinaj’s case before the Tribunal—to ask why it was reopened, and why there has been an unreasonable duration of judicial proceedings. The latter is a violation of the European Convention on Human Rights’ requirement for the examination of a case in a reasonable period of time. To explore these questions, it is necessary to review the history of the case.
History of the Case against Haradinaj
After only 100 days in office as Prime Minister of Kosova, Haradinaj resigned his position in 2005, surrendered to The International War Crimes Tribunal for the Former Yugoslavia, spent two years in detention in The Hague, and another year under house arrest in Prishtina before the Tribunal acquitted him on April 3, 2008, on all counts of being involved in any unlawful conduct while he was a commander in the Kosova Liberation Army. The Trial Chamber found that there was insufficient evidence to establish the existence of a “joint criminal enterprise,” and acquitted Haradinaj, Lahi Brahimaj, and Idriz Balaj of any criminal liability through such an enterprise. Brahimaj was found guilty of torture and sentenced to six years in prison.
As soon as Haradinaj returned to Kosova in 2008, the Prosecution appealed the acquittal, insisting that he had been freed because the Tribunal’s “mismanagement” had prevented the Prosecution from obtaining evidence from two key witnesses—witnesses that they claimed had been threatened and were afraid to testify. The Appeals Chamber responded by upholding 31 counts of the acquittal. But, in support of the Prosecution’s appeal, it ordered a retrial on 6 counts of murder, cruel treatment, and torture at a purportedly KLA-run detention facility in Jablanica in the spring and summer of 1998. It also agreed that the trial judges had not given the Prosecution enough time to secure the testimony of Shefqet Kabashi and the protected witness known as “Witness X.” The Appeals Chamber did this even though Haradinaj had been acquitted of all counts at his original trial and even though there was no evidence whatsoever that he had interfered with any witness. Two years later, Haradinaj found that he had no choice but to return to the ICTY’s detention center.
In my opinion, the ongoing prosecution of Ramush Haradinaj, after his original trial at the ICTY concluded that there was no evidence linking him to any crime or any victim, is problematic from both a legal and moral perspective. First, there was no reason to keep Haradinaj in pre-trial detention, when he had a proven record of responding to the ICTY and there is no risk of his absconding. Second, the structural, legal problems in this case have been well documented by international law expert Roland Gjoni in his “ICTY: Favoring Prosecution over Justice?” (Open Democracy, August 9, 2011). Gjoni explained that Haradinaj’s partial retrial was a departure not only from “fundamental principles of international law,” but also a contravention of previous decisions made by the court in Dusko Tadic (1993) and Naser Orić (2009). (In both cases, the ICTY barred the retrial of an acquitted defendant.) Gjoni concluded that the reversal of the acquittal in Haradinaj’s case amounted to “double jeopardy”—an indication that “the ICTY may be bending fundamental legal principles in favor of the prosecution.”
President Robinson made a similar observation in his partial dissent of the Appeals Chamber’s decision to retry Haradinaj (May 31, 2011, pp. 16-17, para. 3): “Pursuant to the principle of non bis in idem, a person who has been tried at the Tribunal must not be placed at the risk of being thought guilty of an offense of which he has been acquitted, or of being treated as guilty in any sense.” Furthermore, “the doctrine of res judicata entails that matters decided having passed judgment must be accepted as true…and cannot be re-litigated by the same parties in a subsequent proceeding.” Robinson concluded that the Appeals Chamber violated its own rule that it “would not lightly overturn decisions based on the Trial Chamber’s discretion.”
The Appeals Chamber Erred when It Called for a Partial Retrial
The Appeals judges decided that the partial retrial was necessary after the Prosecution convinced them that Shefket Kabashi and “Witness X” had been intimidated during the original trial—witnesses who had opposed the KLA during the war. But then the
Chamber went a step further in favor of the Prosecution when it agreed to allow new witnesses —not just the two from the original trial—to testify and also to permit allegations to remain in the indictment that had no bearing on the six counts. If for no
other reason than this, the rationale for the retrial of Haradinaj merits closer scrutiny. As Roland Gjoni has argued, the ICTY should not have granted the Prosecution “an open-ended opportunity to improve a weak case and retry an acquitted defendant.” In doing so, it has “cast a long shadow over the Tribunal’s ability to administer justice.”
At the opening of the partial retrial in August 2011, Prosecutor Paul Rogers stated that the KLA was a “legitimate force” when it fought for Kosova’s independence from Serbia in 1998 and 1999, but that it had used “illegal means” against its Serbian, Roma, and Albanian opponents.” To substantiate this claim, he brought to the stand Shefqet Kabashi, alleged to be a former prison guard in the Jablanica camp. But in a setback to the Prosecution, Kabashi, whose testimony was supposed to be central to its case, repeatedly refused to testify, just as he had done on two occasions during the original trial. Kabashi also contradicted his previous statements to ICTY investigators. He denied that the Jablanica camp even existed: “There was no prison in Jablanica,” he said. “I can swear about that.” Kabashi pled guilty to contempt of court and was sentenced on September 16, 2011, to two months in jail.
As the Defence had argued in its July 2011 “Pre-Trial Brief on Behalf of Ramush Haradinaj” (para. 27), the Prosecution could not claim that Jablanica was a KLA stronghold, because it was overrun by Serb forces at least three times during the operative period of the indictment. And even though there was an armed conflict between Serbs and Albanians during the period material to the six counts, “There was not any orchestrated retaliation by the KLA against either the Serb civilian population or against civilians from other ethnic groups.” Moreover, neither the Trial Chambers at the ICTY nor the Prosecution had suggested that such a campaign existed in any of the previous cases related to Kosova in which Serb commanders had been tried (paras. 29 and 30).
The Defence further stated in its pre-trial brief that there was no credible evidence of Haradinaj participating in or knowing about mistreatment (para. 41), and that the KLA in the Dukagjini region was a “rudimentary and fledgling organization” working to organise defences in response to Serb attacks (para. 43). Therefore, there was no evidence of a “joint criminal enterprise,” and they said that that it was very doubtful any new evidence would surface in the re-trial that would provide adequate grounds for overturning the decision at the original trial.
Meanwhile, allegations that Sheqet Kabashi and a protected witness had been intimidated were never confirmed. As Ben Emmerson, Haradinaj’s lead attorney, told Rachel Irwin of the Institute for War and Peace Reporting on August 19, 2011, “Despite some rumors, there are no suggestions that Mr. Haradinaj was ever responsible for intimidating witnesses, directly or indirectly.” Emmerson added that in the case of Witness X, if he decides to testify at the partial retrial, he “will be exposed as a liar and a perjurer.” But in another blow to the Prosecution’s case against Haradinaj, Witness X, whose testimony was also supposed to be the justification for the partial retrial, failed to show up in court in February 2012. This resulted in the termination of the trial until further notice.
It is not surprising that the retrial of Ramush Haradinaj has caused many Albanians, not to mention some legal and human rights experts around the world, to lose faith in the ICTY. It is widely believed in Kosova that the re-trial amounts to political posturing on the part of the West towards Serbia. This is an issue that needs to be addressed, but not apart from the recognition that Ramush Haradinaj would never have been rearrested, re-incarcerated, and retried without the tacit permission of all of the actors in post-war Kosova, including the Kosova government under Hashim Thaci.
Belgrade Has Been Successful in Steering the ICTY away from Its Original Mission
Robert Churcher, a post-conflict specialist who testified at the ICTY trial for KLA Commander Fatmir Limaj, insists that “Serbian officials have been spoon feeding the Prosecution with spurious evidence from the beginning,” and he deplores the fact that the court has been willing to receive it. “As a sop to Belgrade,” he said, “the Prosecution is attempting to retry the Haradinaj case from scratch.” To some extent, the ICTY has been a willing accomplice because of Serbia’s successful propaganda campaign against the KLA since the end of the Kosova war in June 1999.
While the establishment of the International Criminal Tribunal for the Former Yugoslavia was an important step in bringing those responsible for crimes against humanity and genocide in the Balkans to justice, unfortunately in collusion with pro-Serb elements in the European Union, Belgrade has been successful in steering the ICTY away from its original mission of addressing the atrocities committed in the Former Yugoslavia. In the process, it has contributed to creating a false parity between the perpetrators and the victims of the Balkan wars of the 1990s.
To satisfy a need to be seen as ethnically balanced, the ICTY has ended up casting all parties in the Balkan wars as equally responsible, even though Serbia started all of the wars and Milosevic’s military and paramilitary forces were responsible for 90 percent of the atrocities that were committed. To be sure, sporadic, terrible incidents occurred on the Kosovar side, but nothing amounting to moral equivalence between the KLA and Serbia.
As former ICTY law clerk and project director of the NGO No Peace without Justice Niccolo Figa-Talamanca said before the opening of the first trial of Haradinaj, “We are witnessing a misguided attempt by the ICTY to prosecute all groups—Serbs, Croatians, Bosniaks, and Kosovars—even-handedly, irrespective of the scale of the crimes committed,” and the result is “an attempt to rewrite history and to negate the true measure of responsibility for the horrors of the Balkan wars.”
If the goal is to achieve lasting piece in Southeast Europe then the international community should not be party to creating a revisionist view of history in which the victims of Milosevic’s reign of terror are repositioned as the perpetrators. There is no question that those who committed crimes should be held accountable. But by bringing KLA defendants like Ramush Haradinaj to the ICTY, the international community has unwittingly helped to create a revisionist view of history, in which the victims of Milosevic campaign against Albanians are repositioned as the perpetrators. Retrying Haradinaj after his acquittal on all charges puts the burden of proof on the court to deny this.
With Kosova still lacking sovereignty as a state, I believe that The Hague Tribunal, under pressure to seem politically balanced, and in the effort to get Serbia to turn over Bosnian Serb commanders Ratko Mladic and Radovan Karadzic, which it has since done, felt that it had to re-incarcerate Ramush Haradinaj. But, in so doing, it has abdicated its historical mission to bring justice to the victims of the Balkan wars. The US government, now in a final push to resolve the conflict between Belgrade and Prishtina, and to leave the Balkans in the hands of the European Union, has de facto supported this position. But the Serbian-Albanian conflict cannot be resolved in this way.
As Ramush Haradinaj wrote in his December 1, 2004, op-ed in The Wall Street Journal Europe, just before he was chosen by Kosova’s Assembly to become prime minister:
“[…] I am proud of the part that I played in protecting my people from Slobodan Milosevic and his henchmen, and I am ready to defend my actions against criticism and innuendo.
“I therefore welcome the scrutiny of my war record by the International Criminal Tribunal for the Former Yugoslavia…and am confident that truth and justice will prevail. However, any attempt—be it by the ICTY with the best of motives, or others with the worst—to morally equate Milosevic’s state-sponsored terror with the actions of the Kosova Liberation Army in defense of Kosovar Albanians will only make the task [that lies ahead for Kosova] more difficult.
“For the need now is to look forward rather than back, to create an inclusive, democratic independent state in Kosova that respects the rights of all of its citizens and is both just and tolerant.”
Shirley Cloyes DioGuardi is Balkan Affairs Adviser to the Albanian American Civic League. This article appeared in Prishtina Insight and is reprinted with permission.