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Haradinaj, Balaj, and Brahimaj Acquitted on Retrial

Submitted by on 05/12/2012 – 11:52 amNo Comment

The Hague, 29 November 2012, MS/PR1536e

I have been working for the Defence in this case, so I will refrain from commenting at this stage. As far as I know, this is the only case before an international criminal tribunal that has been tried twice. I have expressed my criticism for the Appeals Chamber decision of 21 July 2010 to overturn the acquittals in this case in a post at the ILO and the EJIL Talk. The information below is taken from the Tribunal’s press release of 29 November 2012. The full text of the judgment can be accessed here, a summary of the judgment is available here.

The Trial Chamber has acquitted of all charges Ramush Haradinaj, a former commander of the Kosovo Liberation Army (KLA) in the Dukagjin area in Western Kosovo; Idriz Balaj, a former member of the KLA and commander of a special unit known as the Black Eagles, and Lahi Brahimaj, a member of the KLA stationed at Jabllanicë/Jablanica and for a short period Deputy Commander of the Dukagjin Operative Zone. The Trial Chamber ordered their immediate release.

The three Accused were charged as members of a Joint Criminal Enterprise (“JCE”) or, alternatively, under other modes of individual criminal responsibility, with crimes allegedly committed by them or by other members of the Kosovo Liberation Army (“KLA”) in 1998 against Kosovo Serbs, Kosovo Roma/Egyptian, Kosovo Albanian or other civilians in a compound of the KLA in the village of Jabllanicë/Jablanica in Gjakovë/Đakovica municipality. The Indictment has alleged specific incidents of abduction of a total of 16 Kosovo civilians, who, it is alleged, were detained and subjected to torture and cruel treatment at the KLA compound in Jabllanicë/Jablanica. It has been also alleged that eight of these individuals were killed while in KLA custody. These allegations have been the basis of six counts of violations of the laws or customs of war charged against Ramush Haradinaj and Idriz Balaj. Lahi Brahimaj has been charged with four of these counts.

The Trial Chamber was satisfied that the crimes alleged in three counts (Counts 3-5) had been established, namely the cruel treatment and torture of Witness 6, a Catholic Kosovo Albanian, of Nenad Remištar, a Kosovo Serb traffic policeman, of one unknown Bosnian man, and of Pal Krasniqi, Skender Kuçi and Witness 3, all three Kosovo Albanian civilians, and the cruel treatment of three unknown Montenegrins. The Chamber also found that crime allegations had been partially established regarding one count (Count 6), namely the forceful removal of two Kosovo Albanian men, Naser Lika and Fadil Fazliu from the village of Zhabel/Žabelj. The further allegations in this Count referring to cruel treatment and torture of Fadil Fazliu and Naser Lika in the KLA compound in Jabllanicë/Jablanica had not been established. Moreover, the Chamber found that the crimes charged in two other counts (Count 1 and 2) had not been established, namely the murder, cruel treatment and torture of two Kosovo Roma, Agron Berisha and Burim Bejta, and Ivan Zarić, a Kosovo Serb, and the murder and cruel treatment of Ukë Rexhepaj and Nesret Alijaj, Kosovo Roma men.

The Trial Chamber presented its findings regarding the responsibility of the three accused for the established crimes.

A central allegation in the Indictment is the existence of a Joint Criminal Enterprise, the alleged common purpose of which was to consolidate the total control of the KLA over the Dukagjin Operational Zone, by the unlawful removal and mistreatment of Kosovo civilians who were, or were perceived to have been, collaborators with the Serbian forces or otherwise not supporting the KLA. The Chamber found that “the Prosecution presented no direct evidence to prove that the established crimes were committed as part of a JCE in which the three Accused participated” and considered circumstantial evidence tendered by the Prosecution to prove this allegation. Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj, therefore, were not found criminally responsible as participants in a JCE for the crimes charged in the Indictment.

Regarding the alternative modes of accessory liability alleged against the three Accused for the crimes charged in Count 6, the Trial Chamber found that the Prosecution provided no evidence to support these allegations.

The initial indictment against Haradinaj, Balaj and Brahimaj was issued on 4 March 2005. All three surrendered on 9 March 2005. The trial commenced on 5 March 2007 with the Prosecution’s case ending in November 2007. All three defence teams chose not to call any evidence. The Trial Chamber Judgement was rendered on 3 April 2008. The Trial Chamber found that there was insufficient evidence to establish the existence of a joint criminal enterprise in relation to the commission of crimes against humanity and violations of the laws or customs of war and acquitted the three accused of any criminal liability through such an enterprise. Haradinaj and Balaj were also acquitted of all alternative charges in the indictment. Brahimaj was found guilty of one count of torture as a violation of the laws or customs of war and another count of torture and cruel treatment as violations of the laws or customs of war and sentenced to six years of imprisonment.

On 21 July 2010, the Appeals Chamber partially quashed the acquittals and ordered the re-trial of all three accused on six counts of the indictment relating to the cruel treatment, torture and murder of prisoners in the KLA-run camp in Jabllanicë/Jablanica. The Appeals Chamber found that the Trial Chamber had failed to take sufficient steps to counter the witness intimidation that permeated the trial, in particular, to facilitate the Prosecution’s request to secure the testimony of two witnesses. According to the Appeals Chamber, given the potential importance of these witnesses to the Prosecution’s case, the Trial Chamber’s error undermined the fairness of the proceedings and resulted in a miscarriage of justice. Subsequently, the Chamber at the retrial received the testimony of these two witnesses, among the total of 56 witnesses who gave evidence.

Since its establishment, the Tribunal has indicted 161 persons for serious violations of humanitarian law committed on the territory of the former Yugoslavia between 1991 and 2001. Proceedings against 128 have been concluded. Proceedings are currently ongoing for 33 accused.

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