Dispute Over Haradinaj's Engagement in Politics

The wrangling between the Hague tribunal and the UN Mission to Kosovo, UNMIK, last week on whether the former prime minister of Kosovo, Ramush Haradinaj, should be allowed to appear in a television interview brought to light numerous problems which can occur when a war crimes indictee is granted the right to make public appearances.



It also sparked a debate on what kind of rights tribunal indictees should actually enjoy while on provisional release, and whether public appearances should be one of them.



Trial judges at the tribunal stepped in at the last minute to quash an October 17 decision taken by UNMIK to allow Haradinaj to be interviewed by TV21 for a primetime broadcast the next night.



Before Haradinaj became Kosovo premier in 2004, he was one of the most senior leaders of the Kosovo Liberation Army, KLA, and was indicted in 2005 for the crimes allegedly committed by his troops against Serb civilians in 1998, in one of the KLA operational zones bordering Albania and Montenegro.



The indictment against him alleges that “as a commander… he established a system whereby individuals were targeted for abduction, mistreatment and murder, and whereby a systematic attack on vulnerable sections of the civilian population was carried out”.



It further states that “he personally participated in the abduction of persons who were later found murdered”, and on at least one occasion gave his tacit approval as a commander for detained persons to be executed.



After his indictment, Haradinaj voluntarily gave himself up to the tribunal and resigned from his post as a prime minister.



A few months later, he was granted provisional release so that he could return to Kosovo, where he is today pending the start of his trial. And in June 2006, the trial chamber allowed Haradinaj to continue in his capacity as president of his political party, the Alliance for the Future of Kosovo, AAK.



One of the peculiarities of his provisional release was that he be able to talk publicly about politics, on condition UNMIK felt it would promote the “positive development” of Kosovo. However, UN officials would have to provide 48 hours advance notice of any public utterance by Haradinaj that they’d agreed to - to give the prosecution an opportunity to mount a challenge - and provide a “reasoned explanation” for their decision. But even then, the final decision over whether to go ahead would ultimately rest with tribunal judges.



This issue has been propelled into the limelight because at the weekend, people in Serbia will vote in a referendum for a new constitution, the wording of which has caused a stir by reasserting claims over Kosovo.



Kosovo has been administered by the UN since the end of the conflict between Serbs and ethnic Albanians in 1999. Defending its decision to allow Haradinaj to be interviewed on television, UNMIK said that the negotiations over the status of Kosovo are currently “in a delicate phase”.



Because of “increased sensitivities within Kosovo and the region”, it says the interview would help calm tensions and convey a “responsible message” to Kosovans, establishing a “climate in which the political developments concerning Kosovo may be better understood and supported”.



Since Haradinaj’s provisional release terms were announced, UNMIK says it has received 40 requests for the accused to appear at political events, granting authorisation in 29 cases.



UNMIK told the tribunal, in a written statement defending its recent decision to allow the TV interview, that “it is important to recognise the AAK’s key role as an integral part of the coalition forming the Government of Kosovo”.



Krenar Gashi, a journalist for the Balkan Investigative Reporting Network, BIRN, in Kosovo, said that sympathy for Haradinaj among the people of Kosovo is still high, despite the fact that he is due to stand trial for war crimes at the tribunal.



He told IWPR that many people in Kosovo think that Haradinaj’s direct involvement in the political scene is necessary, because he is a “former war leader, a former prime minister, and as his supporters say a ‘brave man and a visionary’”.



However, Gashi added that at the moment Kosovans do not believe that anyone, not even Haradinaj, has much of a part to play. “With the ongoing status talks and intensive international involvement, Haradinaj’s role would not be different from other politicians in Kosovo, and in my opinion that role is minimal,” he said.



One of the main concerns prosecutors at the tribunal have over Haradinaj’s public appearance is the impact it could have on witnesses who are due to give evidence against him.



In its urgent request for the annulment of UNMIK’s decision last week, the office of the prosecutor said that Haradinaj’s appearance on television “has the capacity to intimidate and frighten witnesses”.



But last year, the appeals chamber rejected this as an argument against granting Haradinaj’s provisional release, saying that “the accused is being tried here: his conduct, past and future, is at issue, not other people’s perceptions of that conduct”.



However, Jean-Daniel Ruch, political advisor for the tribunal’s chief prosecutor Carla Del Ponte, explained that witness intimidation is a very real problem for prosecutors at the tribunal, who see examples of it every day. “Witnesses are afraid to talk, and some even refuse to talk in court, or change their statements,” he said, adding that there is a “terrible atmosphere of fear” in Kosovo at the moment.



In its submission to the tribunal concerning Haradinaj’s proposed interview, his defence team stressed there is no evidence that it could result in the intimidation of witnesses, and that its “purpose..would be to contribute to security and stability”.



In its written submission defending its decision to the court, UNMIK said that it has “not received, from any source, indications of intimidation of victims or witnesses resulting from Mr. Haradinaj’s public political activities”.



Some court staff that IWPR has spoken to believe that this underestimates any potential for more subtle intimidation. In fact, Ruch explained that it is difficult to find any witness who would “openly tell us about a threat”, and that there is “no way to prove intimidation or threats were done by order of Haradinaj”.



Ruch stressed that Haradinaj’s presence on the political scene, and the support he enjoys from UNMIK, has a “chilling impact” on witnesses, because “the support of UNMIK is very visible”.



Kosovans know Haradinaj could not appear on television without the explicit support of UNMIK, so therefore confidence in the UN mission could be undermined - a dangerous development, seeing as it is also tasked with ensuring witness protection.



But Haradinaj’s defence team is adamant that he has gone to “great lengths” to reassure potential witnesses, encouraging them to come forward “so that international justice will be served”.



In a public statement from May 2005, Haradinaj said that anyone asked to come to The Hague to give evidence must be able to do so “free of interference and intimidation of any kind”.



In recent months, the office of the prosecutor has openly criticised UNMIK for not adequately protecting witnesses, so this is not a new allegation specific to the argument over Haradinaj’s public appearances.



What is new, however, is its claim that allowing Haradinaj to participate in a TV interview shows a “lack of respect” for the serious nature of the crimes with which he is charged.



Prosecutors have gone so far as to allege that granting Haradinaj leave to appear in television interviews undermines the credibility of the tribunal, and the indictment against him.



Further cause for concern are complaints in Serbia of double standards, with accusations that Serbian indictees would not have been granted such favourable conditions for their provisional release.



Other detainees from the tribunal have been granted provisional release, but none have been given the stage to speak publicly on political matters.



General Rasim Delic, a former commander-in-chief of the Bosnian army, was not allowed to promote his fourth book on the creation and development of the Bosnian army, which he wrote before he was indicted in early 2005.



In April 2005, his defence counsel Stephane Bourgon announced that Delic would appreciate the opportunity to tour Bosnia to promote the book, describing Delic, who obtained a PhD in December 2004, as now "a man of science".



Judge Patrick Robinson replied dryly that he was not sure whether a book tour was an "appropriate activity" for someone on provisional release.



The final decision on the terms of Delic’s provisional release, given by the judges in May 2005, specifies that he must remain within the confines of Visoko and Sarajevo, reporting regularly to local police. It stresses that Delic should not talk to the media about his case, or have contact with victims that might interfere with "the administration of justice".



Whilst not explicitly refusing to allow the book tour, the conditions of Delic’s provisional release obviously made it impossible.



Commenting on the apparent discrepancy in the way accused on provisional release are handled, the spokesperson for registry and chambers, Refik Hodzic, stressed that the trial chamber considers the merits of each individual case.



He explained that generally, inductees on provisional release do not make specific requests to the tribunal asking to appear in public to talk about politics.



Justice Goldstone, who was chief prosecutor at the Hague tribunal and the International Criminal Tribunal for Rwanda, told IWPR there should be one rule for all accused; that they should not participate in public political discussion; and that “it is invidious to choose between one accused and not another”.



On the other hand, attorney Stuart Alford from the International Bar Association told IWPR that as a basic principle, a court must decide on the peculiarities in each case, based on its own merits.



Prior Haradinaj’s provisional release conditions being amended in March this year, prosecutors expressed concern that the tribunal’s reputation could be undermined by a perception of double standards.



However, the appeals chamber said that the fact that other indictees have not been allowed to take part in politics means very little for the case against Haradinaj. The judges underlined the fact that each case must be “judged on its own merits and particular facts”, and described this is the “principle of justice and international law”.



Yet despite this, critics suggest that accused from different sides of the ethnic divide are treated differently, with Serbian suspects unlikely to be granted such favourable terms of provisional release.



But Hodzic, speaking on behalf of the tribunal’s judges, said that if you look back at the history of the Haradinaj case, as a condition of his provisional release he asked specifically to be allowed to make public appearances. In this case, the judges were content that there was a UN body capable of overseeing the exceptional conditions of the provisional release.



However, it remains unclear whether a different set of judges faced with the same request would have acted differently.



Katy Glassborow is an IWPR reporter in The Hague.