ICTY Haradinaj acquittal extraordinary

Aleksandar Momirov [lecturer, Erasmus University]: "In what has been perceived as an astonishing judgment by many, the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) acquitted Ramush Haradinaj and Idriz Balaj of all charges, while finding the third co-accused in the Haradinaj et al. case, Lahi Brahimaj, guilty under two counts of the indictment for violations of the laws or customs of war and sentencing him to a single sentence of 6 years imprisonment. The three accused, high-ranking members of the so called Kosovo Liberation Army (KLA), were charged with, among other things, war crimes and crimes against humanity. Turning to the acquittal of Haradinaj, not being the Tribunal's first acquittal related to the activities of the KLA (see Limaj et al.), the Trial Chamber agreed unanimously that numerous charges accusing the former KLA commander were not proven.

The case, tainted by intrigue and peculiarities, has been followed by the Serbian and Albanian societies in Kosovo and Serbia proper with great anticipation. Consequently, the impact of Haradinaj's acquittal, celebrated by some and derided by others, was felt throughout the region. The legal sustainability of the judgment may be examined on appeal. However, the legitimacy of the acquittal promises to remain a matter of debate for the months to come.

From the outset, the Haradinaj case proved to be exceptionally convoluted. As the judgment emphasizes, major difficulties were encountered regarding the collection of exhibits and the hearing of witnesses. A distinctive feature of the case is reflected in the numerous charges dealing with crimes committed within the Albanian ethnic group, against supposed Kosovo Albanian collaborators during the conflict. This, together with Haradinaj's influence and support among an influential and significant part of the Kosovo Albanian population, determined the political atmosphere in which witnesses needed to be found. Nine potential high-profile witnesses, 3 of whom were under the witness protection program offered by the ICTY, were killed, thus adding to the environment of fear in which the remaining witnesses, many of which appeared only after numerous subpoenas and court orders, were found 'willing' to testify.

Not only was it hard to convince the witnesses to testify but the UN administration in Kosovo (UNMIK), approached by the Tribunal as the de facto authority in Kosovo, was less than enthusiastic in its cooperation with the Tribunal. Throughout the case, the office of the prosecutor (OTP) pointed out that these difficulties made it virtually impossible for the OTP to substantiate its indictment; something in which the OTP was proven quite correct by the Haradinaj acquittal.

This situation was made more difficult by the overt support of UNMIK that war crimes suspect Haradinaj enjoyed throughout his trial. Søren Jessen-Petersen, head of UNMIK at the time when Haradinaj stepped down as Prime-minister of Kosovo and surrendered to the UN Detention Unit in Scheveningen, stated that he saw Haradinaj as a friend whose presence in Kosovo would be greatly missed. Such flagrant partisanship by UNMIK continued, to the frustration of the OTP and Serbia, where 180 war crime-related criminal complaints against Haradinaj have been filed. During his highly criticized provisional release in 2007, Haradinaj met with Joachim Rücker, then and current head of UNMIK, and was subsequently allowed, in an unprecedented move by both the Trial Chamber and UNMIK, to engage in Kosovo's political life.

Being faced with a nearly paralyzed prosecution, Haradinaj's highly esteemed defense team decided there was no case to answer and refrained from calling upon any witnesses or adducing any evidence to rebut the prosecutions charges. The current acquittal, at least so far, showed that this remarkable legal gamble was justified. Indeed, the judgment is replete with references to the insufficiency, vagueness, inconclusiveness or non-existence of evidence. The Trial Chamber even largely dismissed the OTP's ballistics expertise, crucial to some of the charges; a dismissal rarely seen even in cases where similar reports were rebutted by counter-expertise of the Defense. Despite efforts of the OTP to bring the case before the Trial Chamber at all, considering the circumstances, the conclusions of the Trial Chamber cast a doubt on the sufficiency and determination of the OTP's approach to the case.

So what can be drawn from the acquittal itself and its consequences? According to the judgment, the OTP failed to prove and the Trial Chamber failed to find that the listed incidents amounted to an attack against a civilian population, let alone a campaign conducted by members of a joint criminal enterprise. In fact, the judgment emphasizes the incidental character of and personal motives behind the incidents in a manner not often seen in ICTY practice. All this being inherent to a conflict in which neighbors face neighbors, the contrast between the way in which relevant legal standards were applied in this case as opposed to certain previous landmark cases of the ICTY leaves many stranded with a hangover. Kosovo's capital Prishtina was left with a completely different kind of hangover, after Haradinaj's acquittal was received with street celebrations and official praise. Across the disputed 'border', Serbia's otherwise hopelessly divided political scene reacted with rarely witnessed unanimity. President Tadić, Prime-minister Koštunica, the opposition and several NGO's reacted with amazement and condemnation. Obviously not discharging Serbia of its outstanding obligations towards the ICTY, it is clear that by rocking the fragile legitimacy of the Tribunal once again, for many these obligations have become even more difficult to digest, confirming for many, that justice depends very much on the political favor, or disfavor, in which the accused and the victims happen to stand.

The OTP is considering whether it will appeal the judgment."

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