Witness Intimidation a Serious Problem in Kosovo Cases

Friday, 18 November, 2005

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Michael Farquhar

As Kosovo prime minister Ramush Haradinaj awaits the opening of proceedings against him in The Hague, there are signs the tribunal’s work with other Albanian indictees faces significant problems of witness intimidation.

Protected witness L-96 was called by Hague prosecutors to tell how, in the summer of 1998, he and other detainees of a brutal prison camp in the village of Lapusnik were lined up by an execution squad from the Kosovo Liberation Army, KLA, in a clearing in the thickly wooded Berisa mountains.

He told the court that he managed to flee through the trees in the same moment that the forest erupted with gunfire and screams.

Given his experience, this witness clearly found it an ordeal to be sitting in a courtroom in The Hague – even though his identity was hidden from the public gallery.

“Thank you... [for] mentioning names,” he snapped, as the defence lawyer cross-examining him let slip another scrap of potentially identifying information. “I can tell you that I feel very much endangered now, even more so than in the past.”

Supplying eyewitness testimony in a high profile international war crimes trial is bound to be a stressful experience.

But four months into the United Nations court’s first case against former members of the KLA, there are signs that Albanians who decide to testify face particular pressures.

In July 2003, prosecutors reported that numerous potential witnesses in the case against three former KLA men accused of abuses and murders of detainees at the Lapusnik camp had either been “directly approached or have received messages or calls, and [have been] told that they will suffer retaliation if they testify in the case”.

One, they said, had to be relocated in a foreign country after KFOR, the NATO-led force in Kosovo, uncovered evidence of a plot to kill him.

Requesting last November that 12 witnesses in the Lapusnik case be allowed to testify under protective measures, prosecutors reported that most of these people had expressed serious concerns for their own safety and that of their family.

“Witness intimidation is a serious problem throughout the former Yugoslavia,” said Chief Prosecutor Carla Del Ponte in a speech the same month to the North Atlantic Council in Brussels. “But in Kosovo it is widespread, systematic and potentially deadly.”

Observers say the concern for witness safety – which has arisen in many other Hague trials but appears to have sprung up on an unprecedented scale in the Lapusnik case – can be attributed to the fragile rule of law in Kosovo, as well as to the historical emphasis the tightly-knit Albanian community has placed on loyalty, honour and retribution.

International observers and Kosovo Serbs – including two who said they were held in the Lapusnik camp in 1998 – have felt comfortable enough to appear without protection to give evidence against the three accused, Fatmir Limaj, Isak Musliu and Haradin Bala.

But almost every Albanian witness to appear so far – with just one exception – falls into one of two categories: former comrades of the accused, who have refused to testify until issued a subpoena by prosecutors; and others, mostly alleged victims, who have spoken under protective measures.

Those in the first category, who agreed to appear only under threat of prosecution, have tended to be as obstinate in court as one would expect. Some have seized the chance to proclaim their admiration for the accused and their conviction that the KLA was only ever a force for good.

Many of them have frustrated prosecutors by distancing themselves from apparently incriminating evidence they gave in earlier private interviews with war crimes investigators, often blaming translation problems or confusion about dates and facts.

It is unclear to what extent this behaviour arises from a genuine sense of solidarity among ex-members of the Albanian rebel army, and how much of it comes down to concerns about their own reputation at home if they are seen to incriminate the accused.

This second consideration was well-illustrated recently when prosecutor Alex Whiting asked a former KLA commander – who insisted the evidence he gave in a previous interview had been taken the wrong way – whether he had told an investigator he was “afraid” of testifying. The witness replied that he’d said he was concerned that his evidence might be “misunderstood” in Kosovo.

The fears of other Albanians testifying in the case relate more directly to concerns about their lives.

In July 2003, prosecutors reported that threats received by a number of potential witnesses in the Lapusnik trial were so serious that some had said they might not be willing to testify.

Besides the 12 witnesses granted protective measures by judges in the Lapusnik case, a further 15 who are due to give written testimony on background matters such as KLA abductions are also referred to in public documents only by pseudonyms.

The majority of protected witnesses who have testified in court so far have been alleged victims of the crimes set out in the indictment. Two out of just three ex-KLA members who have appeared for the prosecution without being issued a subpoena have also opted to keep their identity concealed.

In a further indication of the gravity of the problem, last October the Office of the Prosecutor filed a separate indictment against Beqe Beqaj, a relative of the accused Musliu, for trying to get two potential witnesses to pull out of the case. Beqaj apparently claimed to have spoken by phone with Musliu in the Hague detention unit and to be acting on his and Limaj’s behalf.

Besides specific threats against witnesses in this particular trial, the reluctance of many Kosovo Albanians to testify publicly against Limaj and his co-accused undoubtedly also stems from the general atmosphere of intimidation in the protectorate.

In Kosovo itself, two trials relating to crimes committed by the KLA during the conflict have so far been brought to a conclusion. In each case, the convictions were followed by a wave of violence – including the murders of three men who testified, explosions and vandalism targeting local police, and the murder of two policemen investigating the death of one witness.

The ex-KLA men convicted in one of these cases included Idriz Balaj, who has since been transferred from his Kosovo prison cell to The Hague to face a new set of charges, in the same trial as Ramush Haradinaj.

Even setting aside these highly politicised local trials, an OSCE review of Kosovo’s justice system covering the period April 2003 to October 2004 depicts a broader problem of witness intimidation.

Listing a series of examples of apparent intimidation during the period in question – in relation to kidnapping, organised crime and rape trials – the report underlines that these “are likely to represent only a fraction of the actual cases”.

Beth Miller, a lawyer working for the Criminal Defence Resource Centre in Pristina, explained that the problem of widespread witness intimidation in Kosovo is not necessarily just a war crimes issue, but stems more generally from underlying factors like organised crime and a lack of respect for the law.

OSCE spokesman Sven Lindholm sees clear consequences, “If witnesses believe that by assisting the authorities they or their family will be endangered, they may remain silent for fear of reprisal.

“It is axiomatic that if witnesses cease to provide information to the police or evidence to the courts, prosecutions will be hindered and justice replaced by impunity.

“If a witness in a murder trial cannot be protected, what hope is there when it comes to war crimes?”

Observers say that, besides the simple fact that Kosovo is a small area with a relatively tight-knit community, more complex cultural factors also play a role.

To an extent, it is a cliché to speak of the importance of honour and loyalty and the complex tradition of blood feuds in Kosovo Albanian society. But one Kosovo expert interviewed by IWPR underlined that these are still real considerations.

Such traditions, he explained, have their roots in the history of the region, which has always been on the periphery of different states and has long lacked a well-functioning system of governance. When people feel unable to go to the police and judiciary to fix injustices, he said, they are more likely to take matters into their own hands.

The expert, who did not want to be named, pointed out that such traditions of loyalty, honour and vigilante justice are likely to be especially strong among former members of the KLA, which was rooted in a strong rural culture, and which consciously invoked traditionalist concepts as a way of developing its image as a very “Albanian” army.

The OSCE’s Lindholm explained that the problem of intimidation also results from weaknesses in Kosovo’s current witness protection programme, despite ongoing moves to improve it.

Tribunal insiders are understandably reluctant to discuss sensitive details of the court’s own witness protection system – but it is clear that at least parts of this system, including the witness relocation programme, operate independently of the local judiciary in Kosovo.

Sources within the UN court say its staff take attempts to intimidate witnesses very seriously.

“[The purpose of intimidation] is to prevent justice to be done and truth to be told...,” prosecution spokesperson Florence Hartmann told IWPR.

“We have, within the [tribunal] rules, instruments to overcome those problems, which occur in all trials but are particularly alarming in [the Lapusnik case] – from protection of witnesses to relocation, through to the arrest and punishment of those who are caught obstructing justice.”

In the courtroom itself, pseudonyms and voice and image distortion can be used to protect witnesses’ identities from the public, and particularly sensitive testimony can be heard entirely out of the public domain.

And in the most extreme cases of intimidation, the UN court has specialist staff ready to relocate witnesses to 11 countries with which the court has formal agreements.

At the same time, a tribunal insider told IWPR that the indictment against Beqaj was certainly intended to send a message to anyone else who tried to interfere in the case. If convicted, Beqaj – who was granted provisional release on March 8, pending trial – faces a possible seven years in prison and 100,000 euro fine.

All of this requires extra time and money. But as tribunal spokesperson Jim Landale told IWPR, that is not a consideration when it comes to dealing with such a serious issue.

“[Witness intimidation is] something that has to be addressed, and is addressed,” he said. “And it’s not neglected for any resource-related reason. In other words, it’s a priority.”

Still, at the end of the day it is clear that much rests on the courage of those who, having suffered or witnessed savage mistreatment during the conflict in Kosovo, insist on having their day in court.

Judging by his own statements in the witness stand, protected witness L-96 was clearly under no illusions about the possible consequences of his decision to testify.

“We tried hard,” he told judges, “risking our lives to come here.”

Michael Farquhar is an IWPR reporter in The Hague.