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Appeals judges this week ordered a partial retrial in the case of ex-Kosovo prime minister Ramush Haradinaj, the first decision of its kind to be handed down at the Hague tribunal.
Haradinaj, former commander of the Kosovo Liberation Army, KLA, was acquitted in 2008 of all 37 counts against him. One of his co-accused, Idriz Balaj, was also acquitted, while a third co-accused, Lahi Brahimaj, was found guilty of cruel treatment and torture and sentenced to six years in prison.
The men were charged with war crimes and crimes against humanity, including the murder, torture and rape of Serb civilians - as well as suspected Kosovar Albanian and Roma collaborators - during the late 1990s conflict in Kosovo.
The prosecution appealed the acquittals and also demanded a retrial on six counts of the indictment, claiming that witness intimidation had “infected” the trial.
They further argued that the trial chamber had not allowed them extra time to secure the testimony of two crucial witnesses. One of those witnesses, former KLA member Shefqet Kabashi, was charged with contempt for refusing to testify, and his case is still pending.
This week, appeals judges decided to grant the prosecution’s request for a retrial for all three accused on the six counts of murder, cruel treatment and torture. They also upheld Brahimaj’s conviction and declined to reduce his prison sentence.
While reading out the verdict in court on July 21, presiding appeals judge Patrick Robinson stated that “the trial chamber placed undue emphasis upon ensuring that the prosecution took no more than its pre-allotted time to present its case…irrespective of the possibility of securing potentially important testimony.
“This misplaced priority demonstrates that the trial chamber failed to appreciate the gravity of the threat of witness intimidation posed to the trial’s integrity.
“…Given the potential importance of these witnesses to the prosecution’s case, the error undermined the fairness of the proceedings and resulted in a miscarriage of justice.”
Initially, Haradinaj – as well as Balaj – were given the option of traveling to The Hague for the appeals judgement, and both subsequently indicated that they would not attend.
Brahimaj, the only one convicted after the trial, had been granted provisional release in Kosovo pending the appeal and was remanded back to the tribunal for the judgement.
However, Haradinaj was present in the courtroom while the verdict was being read out.
It was revealed after the verdict that a confidential arrest warrant was issued for Haradinaj on July 19, and he was transferred from Pristina to The Hague the following day. Balaj was also arrested, but was still in Kosovo when the judgment was delivered.
Both Haradinaj and Brahimaj sat solemnly while the verdict was delivered, and neither displayed any emotion.
Judge Robinson had dissented from the majority decision to order a partial retrial.
In his extensive dissenting opinion – not read out in court - he argued that the trial judges did in fact grant extensions to the prosecution’s case on at least three occasions.
In addition, Judge Robinson argued that this was done because the trial chamber was “sensitive to general atmosphere of fear and intimidation, which the trial chamber itself acknowledged to be pervasive”.
“It is difficult to understand how it could be maintained that the trial chamber failed in its duty to assist the prosecution in securing its evidence,” he continued.
Judge Robinson also noted the “question of how many extensions to grant, whether one, two, or 100, or whether to stay or adjourn the proceedings…is not a judgement for the appeals chamber to make”.
When reached for comment, Haradinaj’s defence coordinator, Michael O’Reilly, declined to elaborate on a public statement he issued this week.
“Mr Haradinaj's legal team is extremely surprised by today’s decision,” the statement read. “It is something we could not have foreseen, particularly in view of his unambiguous acquittal two years ago. Our concerns now are, first, to ensure Mr Haradinaj's quick return to Kosovo and, second, to get the earliest possible date for the partial retrial.”
He said that Haradinaj’s “primary concern was a successful outcome” to the case concerning Kosovo’s independence at International Court of Justice, ICJ, in The Hague. On July 23, judges at the ICJ issued a non-binding advisory opinion which stated that Kosovo’s declaration of independence was not illegal under international law.
As for the Haradinaj case, a new trial chamber has been formed to hear the partial retrial, but no further hearings have been scheduled at this time. It is also unclear whether the prosecution will have to depend on the two witnesses who refused to give evidence the first time around.
“At this stage, it’s too early to say,” said court spokeswoman Nerma Jelacic. “If it’s coming to a retrial on these six counts, the prosecution has to try to prove these six counts and present evidence to this.”
Jelacic added that how the partial retrial is handled is up to the newly-appointed judges.
“The way the proceedings go from here … will be for the new trial bench to resolve,” she said.
The Office of the Prosecutor did not respond to requests for comment.
Rachel Irwin is an IWPR reporter in The Hague.
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