Problems Ahead for Haradinaj Prosecutors

As the future status of Kosovo is thrashed out in the background, its former prime minister has gone on trial with two ex-subordinates, charged with crimes allegedly committed during the 1998-99 conflict.



The March 5 opening statements at the trial of Ramush Haradinaj, a one-time senior officer of the Kosovo Liberation Army, KLA, have highlighted a number of obstacles faced by the prosecutors.



Prosecutors contend that they have had difficulties finding enough witnesses to testify in the face of widespread witness intimidation in the war-torn province. They also talk of international opposition to the case.



The defence argues there is no case against their client and says the trial can be seen as a victory for those in Serbia opposed to Kosovo’s independence.



Supporters of Haradinaj claim he is on trial to show that the tribunal is even-handed towards both sides in the Kosovo conflict and is not biased against Serbs.



There has only been one other KLA trial at the tribunal. It ended in the acquittal of former KLA commanders Fatmir Limaj and Isak Musliu in November 2005, because of a lack of evidence to link them to the murder and torture of Serbs at a KLA prison camp in 1998.



Their cases are currently under appeal, along with that of their co-accused Haradin Bala, a former KLA footsoldier, who was sentenced to 13 years.



The indictment against Haradinaj, Idriz Balaj and Lahi Brahimaj alleges that between March 1 and September 30, 1998 they were involved in “the unlawful removal and mistreatment of Serb civilians” and the mistreatment of other civilians perceived to be collaborating with Serbian forces, in the Dukagjin region of western Kosovo.



A quick glance at the charge sheet reveals a list of crimes horrifying in their brutality, but on a different scale to those usually prosecuted at the tribunal - with no allegations of mass killing or of the widespread destruction of homes and properties.



Carla Del Ponte, the chief prosecutor, underscored the importance of this trial in opening remarks to the trial chamber, which she has made at just two other trials during her seven-year tenure.



She emphasised that the case was solely “about crimes in Kosovo in 1998”, and had nothing to do with any wider diplomatic events.



She warned that it “would not be an easy prosecution” and was one that “few supported by their cooperation at both international and local level”.



Indeed, the trial of this high-level politician could be embarrassing for some. Haradinaj was appointed prime minister under the constitution established by the United Nations Mission in Kosovo, UNMIK, in December 2004, and has been praised by Western diplomats for his leadership skills.



Significantly, Del Ponte reminded judges of a further obstacle to the prosecution - the “serious, ongoing” problem of witness intimidation in Kosovo, which had left many reluctant to testify and some terrified.



Witnesses, she said, had received threats “both veiled and direct”, and one had been threatened only that weekend.



"If I have no witnesses appearing in court, I will be obliged to withdraw this indictment," she warned, after presiding judge Alphons Orie interrupted this revelation.



But in spite of these problems, she emphasised that the judges should “be in no doubt, as the prosecution will prove, that these men - this warlord with his lieutenant and his jailer – have blood on their hands”.



In his opening statement, Haradinaj’s defence counsel painted a very different picture, of a statesman “both respected and admired by the international community” and committed “to the protection and integration of Kosovo’s ethnic minorities”.



“The objectives of the KLA in western Kosovo were to protect the local population against Serbian aggression and to fight for an independent and liberated Kosovo,” said Emmerson.



He dismissed the case against his client as “little more than a patchwork of individual allegations against Haradinaj’s co-accused, tenuously stitched together with the evidence of a tiny handful of witnesses”.



Emmerson made no reference to Del Ponte’s claims of witness intimidation, but simply dismissed the prosecution witnesses as “demonstrably unreliable” and their evidence against Haradinaj as “false”.



But some media reports back Del Ponte’s claims that witnesses due to testify in the trial are being targeted.



Last month, the Serbian radio station B92 reported that a witness had been killed, and that two others had later pulled out due to fears over their personal safety.



When quizzed about this at a press briefing on February 28, Olga Kavran, the spokesperson for the Office of the Prosecutor, said there was no information that the witness list had changed and that the number of witnesses filed remained at 98.



The prosecution has long contended that witness intimidation is a grave problem in Kosovo – which has been administered by the UN since June 1999 – and where law and order have traditionally been substituted by clan rule and codes of loyalty and honour.



In past addresses to the United Nations Security Council, UNSC, Del Ponte claimed intimidation was widespread and systematic. She also slammed UNMIK for what she said was its “less than optimal” protection of witnesses in the province.



Since Haradinaj was indicted, prosecutors have wrangled with UNMIK over its powers to monitor his political activities. On March 7, judges dismissed the prosecution’s call to remove these powers.



Prosecutors lodged their motion after a request by Haradinaj to engage in a public appearance with an UNMIK official, arguing that such a move might deter prosecution witnesses from appearing and increase risks to their safety.



In an interview with IWPR this week, Neeraj Singh, spokesman for UNMIK, confirmed that witness intimidation in Kosovo is an ongoing problem.



But Singh dismissed the prosecution claim that there is a connection between intimidation and Haradinaj’s public appearances.



“On no occasion did the prosecution provide information on any specific or concrete risk of harm to witnesses,” he said.



But past experience at the tribunal would suggest prosecutors could have a problem in finding witnesses prepared to testify in the Haradinaj trial.



An IWPR investigation from April 2005 – five months into the Limaj trial – found that a number of witnesses set to testify against the former KLA members said they had considered dropping out because the threats they received were so severe.



It also observed that most witnesses who had testified in the trial by that time were either former comrades of the accused who were reluctant to appear for the prosecution, or alleged victims testifying under protective measures, often in fear of their lives.



Of the seven witnesses who have testified in the Haradinaj trial so far, four of them have used similar measures to hide their identity – adopting pseudonyms and employing voice and face distortion technology.



Michael O'Reilly, Haradinaj's defence team coordinator, said that while it would be naive to suggest that there has never been a case of witness intimidation in Kosovo, there's nothing to link such behaviour to his client.



"Haradinaj is an intelligent man – he doesn't do that kind of thing - although no-one can categorically exclude the possibility that some hotheads in Kosovo think they're doing a service to their country by intimidating witnesses," he said.



O'Reilly argues that the main problem that prosecutors face is not witness intimidation but lack of evidence.



"If you look at the indictment you will see that there is very little that is alleged against Haradinaj personally," he added, “and what is alleged is simply not supported by evidence”.



He also argued that the charges against his client are based on assumption, rather than anything more substantial.



"People were killed, and there's evidence that some of them may have been in KLA custody at that time. As Haradinaj was assumed to be the most senior KLA officer, it is inferred that he must have been part of it, but there's no evidence," he said. “It’s an inference built upon an assumption.”



He argues that the KLA did not have control of the so-called “Dukagjin operational zone” - as the prosecution alleges - and that there is strong evidence that there were Serb actors operating in the area throughout the indictment period.



To support this, he points out that Emmerson referred in his opening speech to a cluster of bodies – those of six Albanians – that were removed from the original indictment after witness statements suggested Serb forces were responsible for these deaths.



Krenar Gashi, a journalist for the Balkan Investigative Reporting Network, BIRN, in Kosovo, said that most former KLA fighters consider Haradinaj's indictment to be politically motivated - and a reaction to the indictments of the late Yugoslav president Slobodan Milosevic and former Serbian president Milan Milutinovic for alleged crimes against the the Kosovo Albanian civilian population.



"In their eyes, after the trial of Milosevic and Milutinovic, the international community has to show that it will prosecute Albanians,

too. They think that Haradinaj is a victim of this," he said.



But Anton Nikiforov, political advisor to Del Ponte, dismisses the notion that the prosecution would indict someone to show balance.



"The concept behind this tribunal was to be even-handed – there's no mystery about that," he said, "but during the Balkans wars, crimes were committed in different states by different sides and these had to be addressed".



"The international tribunal was not established in order to satisfy anybody's political concepts or feelings, but first of all to satisfy the victims of mass crimes. And victims were on all sides,” he explained.



Nikiforov told IWPR that there was resistance from certain quarters to seeing Haradinaj brought to trial, because of the sense in Kosovo - and elsewhere too - that the KLA and the Albanian community in general were engaged in a noble war against the regime in Belgrade.



"The international community supported the noble fight," he added.



This was compounded by fears that prosecuting the former premier could undermine stability in Kosovo, he added.



But the trial has caused little unrest in Kosovo so far, says Gashi.



He said it is not receiving as much coverage in the local press as he expected, and thinks it is being eclipsed in the public eye by the current negotiations over the future status of the province.



"Nothing in Kosovo is more important right now than the final status," he said. "Everything else is being ignored."



Caroline Tosh is an IWPR reporter.