JURIST Special Guest Columnist Abigail Salisbury says that the recent war crimes acquittal of former Kosovo prime minister and Kosovo Liberation Army leader Ramush Haradinaj before the International Criminal Tribunal for the former Yugoslavia - a ruling now under prosecution appeal - may compound existing tensions in the Balkans and provide a platform for his return to international affairs...
Given his extraordinary achievements and popular support, it seems odd that when compared to the trials of Serbian criminals, Haradinaj's legal troubles were practically invisible to the general outside world. The landmark TadiÄ case, for example, involved the conviction of a relatively small-time Bosnian-Serb but is now required reading for most students of international law. Haradinaj's acquittal was not the result of any earth-shattering new legal reasoning, but it does raise a variety of concerns over the utility and politics of the ICTY and the future of war crimes tribunals in general. JURIST recently spoke to Michael O'Reilly, coordinator of Haradinaj's London-based defense team, about some of the many issues surrounding the Haradinaj case.
Although Haradinaj's admirers likely feel that their hero has been vindicated, others question what message his now-erstwhile acquittal has sent. The unpopular former Chief Prosecutor Carla Del Ponte's claims of witness intimidation at trial were constantly at issue, and unfortunate accidents involving planned witnesses did give the appearance of foul play. Persuasive evidence of such intimidation failed to materialize, however.
Why was obtaining testimony so troublesome? O'Reilly told JURIST that those who had provided statements originally did so believing that they were cooperating with investigations of Serbs' alleged criminal activities in Kosovo and had no idea that anyone would try to use their words against Haradinaj. He also attributed some of the difficulty to public opinion of the ICTY: "Properly established courts, operating under international treaties, are more likely to be successful in getting full witness trust and cooperation. The ICC is of course the example to watch." But one musn't overlook the fact that the availability of reliable testimony also diminished naturally because events are forgotten and witnesses die as the years pass.
Even those who believe the ICTY represents the rule of law often question its functionality. Indeed, one of the main reasons Haradinaj's trial should have attracted more attention is the mere fact that it happened at all. Del Ponte has said that these proceedings comprised an essential part of the post-conflict process and helped to quell lasting animosities by providing closure and encouraging stability. Recent events in Kosovo and Serbia do not indicate that the prosecutions have had the effect she desired, however. Reflecting on Del Ponte's beliefs, O'Reilly told JURIST, "In general I am doubtful. The process is too long, too inept and too politically compromisedâ¦.It simply keeps old wounds open. The South African Truth and Reconciliation commission model seems to offer more hope."
The majority of those sought for prosecution by the Hague-based tribunal have fled, with protectionist governments doing little to aid in their capture. The mid-war creation of the ICTY is said to have actually caused a lull in fighting, but hostilities resumed once the court's impotence became known. Nevertheless, Haradinaj promptly traveled to The Hague following his indictment because "he is much more politically sophisticated that most of the other indictees," according to O'Reilly, who added that for his client "non-cooperationâ¦was never even considered." Despite the former Prime Minister's confidence, the ICTY has disappointed many with its slow progress, made even more frustrating because the court is required to complete all of its activities by 2010. At the current rate, it looks as if there will be much left unfinished. One wonders what the Balkans will look like in the post-ICTY years, and whether infamous outlaws such as KaradziÄ and MladiÄ will feel safe enough to reappear.
The tribunal's proceedings have been seen not just as as inefficient, but prejudiced as well. Many Serbs have viewed it as a political tool being unfairly used against them, evidenced by the few Albanians prosecuted relative to the larger number of Serbs charged with criminal conduct. When questioned about the problem, O'Reilly noted, "The trials at The Hague continue to fuel nationalist and anti-western political sentiment." Some critics of the ICTY's conduct believe that Albanians such as Haradinaj were indicted without any real proof of wrongdoing, just to provide the impression of equality that the court wanted desperately to project. These "hopelessly inadequate indictments," O'Reilly finds, "have only served to increase Serbian fury and resentment." Those who watched footage of rioters setting fire to the U.S. embassy in Belgrade earlier this year might agree with his assessment that "The unfortunate coincidence of the Haradinaj acquittal coming at the same time as Kosovo's independence has aggravated matters." It is difficult to see how Carla Del Ponte's vision of the ICTY healing the Balkans can manifest itself when the court's actions are perceived to be illegitimate.
Strangely enough for a former KLA leader, some people look to Haradinaj as a force potentially capable of bringing some unity to the region. He actually enjoys a fair amount of approval among Serbs as well as Albanians, and has built relationships with influential UN dignitaries and foreign politicians, some of whom have publicly supported him in his defense effort. O'Reilly pointed out that Haradinaj is not yet forty years of age and holds university degrees in both law and business. The fact that his entire â¬9 million defense costs were financed by private donors in Kosovo gives some idea of the sort of backing this man has. With his battle at The Hague behind him, Haradinaj has returned his focus to politics and is now an opposition leader. Thus, although most Westerners have not yet heard of Ramush Haradinaj, much is expected of him. Barring a successful prosecution appeal leading to retrial and conviction, it seems inevitable that he will rise in prominence. We should keep an eye on him.
Abigail Salisbury is a 2007 graduate of the University of Pittsburgh School of Law. She worked in Kosovo in the summer of 2006.