Institute for War and Peace Reporting | Giving Voice, Driving Change
Prosecutors in the case against former Kosovo prime minister Ramush Haradinaj conceded this week that one of their key witnesses was unreliable, and asked judges to ignore his testimony.
The witness, known only by the number 81, was one of 12 prosecution witnesses to give live evidence at the partial retrial of the Haradinaj case, which began in August 2011.
Prosecuting lawyer Paul Rogers told judges this week that the prosecution “does not intend to rely on the evidence of Witness 81”.
“[The prosecution] invites the chamber to ignore that evidence as unreliable and treat it as though it was not part of the record. The chamber should of course continue to assess the remainder of evidence independently and without regard to his evidence,” Rogers said.
Appearing in the Hague courtroom in November 2011, Witness 81 testified about the alleged murder and mutilation of three teenage boys, which he claimed happened in the presence of Haradinaj and his two co-accused in the village of Jablanica in May 1998. (See Tense Testimony in Haradinaj Trial.).
When the witness gave his testimony, the defence accused him of fabricating his entire account.
At this week’s hearing, Rogers acknowledged that discrepancies over dates had occurred in testimony given by other witnesses.
“Your honours are entitled to consider the passage of time that has elapsed,” he said. “Where [witnesses] are confused about dates, your honours can look to other evidence in the record.”
He said the chamber was “entitled to consider the stress and fear Kosovar Albanians may have in testifying in this case”.
Rogers requested a 20 year prison sentence for Haradinaj, a former senior commander in the Kosovo Liberation Army, KLA, and for his two co-defendants and fellow KLA members Idriz Balaj and Lahi Brahimaj.
In 2008, Haradinaj was acquitted of all 37 counts against him, which included the murder and torture of Serb, Albanian and Roma civilians during the late Nineties conflict between Serbian security forces and the KLA in Kosovo.
Balaj was also acquitted in that trial, while Brahimaj was found guilty of cruel treatment and torture and sentenced to six years in prison.
Witness 81, a former KLA member, did not testify in the original trial.
The partial retrial stems from a July 2010 appeals judgement which found that trial judges “failed to appreciate the gravity of the threat that witness intimidation posed to the trial’s integrity”, and that they placed too much emphasis “on ensuring that the prosecution took no more than its pre-allotted time… irrespective of the possibility of securing potentially important testimony”.
Appeals judges ruled that Haradinaj and Balaj should be retried on six counts of murder, cruel treatment and torture, and Brahimaj retried on four of those counts.
The partial retrial began in August 2011, but dragged on for several months due to difficulties securing the testimony of a final protected witness. That witness did end up testifying, but at an undisclosed location and entirely in closed session. On April 20, the prosecution said it rested its case.(See also Haradinaj Won't Present Defence Case in Retrial.)
All of the current charges concern a “makeshift detention facility” in Jablanica, Kosovo, located next to the family compound of Brahimaj, which doubled as KLA headquarters in the town. Prosecutors say this detention facility was used to beat, torture and imprison those who were or perceived to be Serbian collaborators, regardless of their ethnicity.
“The [three] accused were senior and respected commanders in the KLA, and together they pursued the elimination of opposition by mistreating, torturing and murdering” perceived opponents in the Jablanica detention facility, Rogers said. “This was a small facility… on a small plot of land on the edge of Jablanica village. Due to its size, for those members of the KLA attending that place, it was impossible not to know what was going on.”
Prisoners, Rogers said, “were kept bound like animals, soiling themselves and sleeping in their own excrement, dehumanised and humiliated”.
Brahimaj, he said, was “at the heart of the mistreatment.” The indictment claims Brahimaj often carried out beatings and other acts of violence himself.
Rogers cited the testimony of one anonymous witness who testified that after being severely beaten, Brahimaj handed him a revolver and said, “Take this and kill yourself because I don’t want to smear my hands with your blood.”
Balaj, the alleged commander of a KLA special unit known as the “Black Eagles”, was the “trusted lieutenant” of Haradinaj and acted as an “important link” between him and Brahimaj, Rogers argued.
Haradinaj was “able to influence the conduct of others” through his position, based on “the respect accorded to him as a [war] hero and commander”, Rogers said.
“His endorsement and support for the elimination of opponents through illegal means – coupled with his position of authority and respect – acted as positive encouragement for perpetrators of crimes at Jablanica,” Rogers told the court.
He added that wartime KLA communiqués and blacklists “leave no room for uncertainty as to the fate to befall those suspected of collaboration”.
Rogers claimed that Haradinaj “would have known” about a warning from a KLA spokesman in July 1998, that collaborators would be killed “if they continue to follow the wrong path”.
In the defence’s closing arguments, Haradinaj’s lawyer Ben Emmerson was highly critical of prosecutors for bringing Witness 81 to testify, and claimed that his testimony was central to the prosecution case.
Prosecutors relied heavily on Witness 81 and their final protected witness to back up “the allegation specified by the prosecution as central to its case – tha Mr Haradinaj was both present at and directly participating in…[the] disfigurement and murder of three teenage boys”, Emmerson said.
Witness 81’s evidence, Emmerson argued, “was so appallingly dishonest, so demonstrably fabricated in every detail that he spent five days twisting and turning like a snake on a stick”.
“It makes the blood run cold to think that a witness who is willing to lie so easily, repeatedly and with such elaborate detail could be relied upon by a responsible prosecutor as the cornerstone of its case,” Emmerson said.
“You chose to call a witness… whose evidence is so obviously false that you’ve been driven to abandon any reliance at all upon him, despite the enormity and gravity of claims that he made,” Emmerson said to Rogers, who sat stone-faced on the other side of the courtroom.
Rogers then stood up and told the bench that “it’s entirely inappropriate to make such personal and direct remarks to counsel during closing submissions, or at all, and I would ask Mr Emmerson to stop it”.
Emmerson countered that Rogers needed to take responsibility for his actions.
“I’m sure Mr Rogers would prefer it wasn’t put in the way that it was, but he needs to take responsibility for a prosecutorial decision to rely on a witness that anyone could have seen, having proofed him as Mr Rogers did, was wholly unreliable,” Emmerson said.
Emmerson said that a second “star witness” in the retrial –the final protected witness – testified that he “never saw Mr Haradinaj present on any occasions at Jablanica when he saw crimes being committed, and never even claimed to see Mr Haradinaj enter the compound in which it is alleged that crimes occurred”.
This witness, Emmerson said, testified that Haradinaj “remonstrated” with Brahimaj after learning that a prisoner had been severely beaten.
“It’s hardly the response of a commander that was party to a [joint criminal enterprise] to mistreat and kill detainees at Jablanica,” Emmerson said.
“As a result of their formal decision to abandon Witness 81, coupled with the fact that [the final protected witness] eventually came and told the truth about Ramush Haradinaj, the prosecution’s primary case theory entirely collapsed,” Emmerson argued.
He said that after the original trial and acquittal, “there were those who were unprepared to accept the verdict”.
He added that media coverage stating that the acquittal was unfair and that witnesses had been intimidated had “started to gain currency.”
“That, at least, will never and can never be said of this retrial,” Emmerson said. “This trial chamber has left no possible stone unturned.”
The prosecution was able to call any witness it wanted, not just those who refused to appear in the first trial, and it was granted long adjournments to secure this testimony, Emmerson said.
“I’m going to ask you to spell out not just that the prosecution has failed to prove its case, but to go further and spell out the undeniable fact that after what must have been one of exhaustive examinations in the history of international criminal law – spanning seven years and two trials and umpteen hopeless and twisted, bent witnesses – he’s innocent. Properly innocent of crimes of which he was charged,” he said.
Turning to the existence of KLA blacklists, Emmerson said the fact that there might have been “an intention to identify people who pass information to Serbs… is not in itself a criminal purpose”.
A blacklist which the prosecution cited was not even a KLA document, but one produced by another group, the Armed Forces of the Republic of Kosovo.
In addition, Emmerson said the man who wrote the KLA communiqués cited by the prosecution had testified in the first trial and indicated that “he didn’t have any conversation with Ramush Haradinaj” about the documents, nor did the accused sign any of them.
“They are worthless,” Emmerson said of the documents.
The lawyers for co-defendants Balaj and Brahimaj also presented lengthy closing arguments. Both criticised the prosecution for using Witness 81, and said their respective clients were innocent.
The judgement will be announced at a later date.
Rachel Irwin is IWPR Senior Reporter in The Hague.
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