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ICTY: favouring prosecution over justice?

The partial retrial of Kosovo's former Prime Minister Ramush Haradinaj over charges of murder, cruel treatment and torture heightens concerns that the ICTY may be bending fundamental legal principles in favour of the prosecution, argues Roland Gjoni
Roland Gjoni
9 August 2011

The case against Ramush Haradinaj at the International War Crimes Tribunal in The Hague (ICTY) has been in process for seven years. On August 17, 2011, Haradinaj, a senior commander in the Kosovo Liberation Army (KLA) during the armed conflict of Kosovar Albanians against the Serbian military and paramilitary forces in 1998-1999, will face a “partial retrial.” Haradinaj’s partial retrial is unique because it is the only case in the eighteen-year history of the ICTY in which an acquittal has been reversed. The Appeals Chamber’s recent rulings about the Haradinaj case have heightened concerns that the ICTY may be bending fundamental legal principles in favor of the prosecution.

One of the key principles of criminal law in all major common or civil law systems is ne bis in idem (“not twice for the same”), meaning that no legal action can be instituted twice for the same offense. This prohibition against “double jeopardy” is intended to prevent prosecutors from abusing their authority by initiating repeated prosecutions for the same offense as a means of harassment or oppression. Similarly, under common law, the concept of res judicata prevents courts from re-litigating issues that have already been the subject of a final judgment, requiring them to accept the findings as true. In Haradinaj’s case, both of these principles appear to be at risk. To understand why, it is necessary to recap the history of his indictment.

On March 2005, while serving as Kosova’s Prime Minister, Ramush Haradinaj was indicted by the ICTY. He resigned and surrendered to the Tribunal, after the prosecution charged him and two other KLA commanders, Idriz Balaj and Lahi Brahimaj, on 37 counts, including murder, torture, and cruel treatment of Serbs, Roma, and Albanians in a joint criminal enterprise (JCE). The JCE is a form of criminal liability frequently used by the prosecution in international criminal tribunals regarding war crimes and crimes against humanity. When prosecutors allege the existence of a JCE, they must prove beyond a reasonable doubt that a group of individuals had a common purpose and a plan to commit a crime and that the individuals acted in concert to achieve their goals. In Haradinaj’s case, the prosecution alleged that the purpose of the JCE was to establish control by the KLA over the Dukagjini Operational Zone by means of committing unlawful acts. This meant that the prosecution had to prove beyond a reasonable doubt that Haradinaj, Balaj, and Brahimaj had a common purpose to commit crimes against the civilian population in the Dukagjini Operational Zone and that each of them had participated in one way or another in furthering that purpose.

In the course of Haradinaj’s trial, the prosecution presented about 100 witnesses and submitted more than 1,000 pieces of evidence to prove criminal responsibility on 37 counts. In April 2008, Trial Chamber I of the Tribunal acquitted Haradinaj and Balaj on all counts. Lahi Brahimaj was found individually guilty of cruel and inhumane treatment of civilians at the Jablanica makeshift detention facility and sentenced to six years in prison. Haradinaj and Balaj returned to Kosova with not-guilty verdicts. Meanwhile, the prosecution appealed the acquittals, arguing that it had not been provided ample opportunity to secure the evidence of two key witnesses due to the mismanagement of proceedings on the part of Trial Chamber I.

On July 21, 2010, the Appeals Chamber, ICTY President Judge Patrick Robinson dissenting, ordered a partial retrial on six of the thirty seven original counts, holding that the Trial Chamber had “failed to take sufficient steps to facilitate the prosecution’s requests to secure the testimony of the two witnesses.” Although the Appeals Chamber upheld the majority of the acquittals (31 counts), it ordered a retrial on six counts of murder, cruel treatment, and torture. Given the potential importance of the two witnesses to the prosecution’s case, the Appeals Chamber decided that there had been a miscarriage of justice, and it guided the new trial to hear the two witnesses.

Since July 2010, Haradinaj has been sent back to jail. The defense claims that the retrial should be limited to hearing only the testimony of the two witnesses, which was the sole basis for the reversal of the acquittals. In contrast, the prosecution claims that the retrial amounts to a new trial, and that therefore they should have the opportunity to call new witnesses to establish criminal responsibility on the part of all three accused at the Jablanica detention center. On May 31, 2011, the Appeals Chamber rejected all of the defense’s claims.

The Chamber’s decision appears to represent a departure from the fundamental principles of international criminal law, the incarceration and retrial of the three accused merits closer scrutiny and analysis. The decision undermines two key principles of criminal law mentioned above—ne bis in idem and res judicata. It also does not reflect the principle of finality in criminal proceedings. Ne bis in idem was previously interpreted by the ICTY in its decisions for Dusko Tadic (1993) and Naser Oric (2009) to bar the prosecution from putting an accused at risk of being retried for a crime for which he had been acquitted.

By allowing allegations unrelated to six crimes to remain in the indictment, the Appeals Chamber is giving the prosecution, at least theoretically, a second chance to assert that Haradinaj and his co-defendants were responsible for crimes not only in Jablanica but throughout the Dukagjini Operational Zone. The Appeals Chamber’s decision on the scope of the retrial allows the prosecution to call new witnesses and to re-allege crimes for which the three accused were acquitted and not appealed by the prosecution. In addition, the prosecution is being permitted to call new witnesses whose statements were not disclosed to the defense during trial and to call an “expert witness” who was never called by the prosecution to testify in Trial Chamber I.

Punishing the political and military leaders for war crimes and crimes against humanity during the Balkan conflict of the 1990s is one of the greatest achievements of international law and human rights. Above all, the ICTY was established to end the age of impunity for political leaders and respond to the call of humanity for justice. Nevertheless, the search for justice should not detrimentally affect the rights of the accused in criminal trials. In seeking to render justice to the victims, the ICTY should not grant the prosecution an open-ended opportunity to improve a weak case and retry an acquitted defendant. And yet this is exactly what the Tribunal is doing in the Haradinaj case. Allowing the prosecution to present evidence related to the crimes for which Haradinaj and his co-defendants have been acquitted and to introduce new witnesses and evidence casts a long shadow over the Tribunal’s ability to administer justice.

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