Why did
Prosecution Fail to Prove what 'Everybody knows'
The Hague, 07.04.2008.
Intimidation of potential witnesses was an
important factor in the failure of the prosecution to prove its case at
the trial of Haradinaj, Balaj and Brahimaj but mistakes it made in its
investigations, improper identification procedures, low level of
credibility of evidence provided by the Serbian MUP, a bungling
prosecution team and high threshold of proof set by the Trial Chamber
also played a part
Insistence on the fact that the trial went on in an
atmosphere of fear and on substantial problems both the Trial Chamber
and the prosecution faced in dealing with witnesses who didn't feel safe
despite the protection measures sounded almost as an excuse for the
judgment delivered to Haradinaj, Balaj and Brahimaj. Haradinaj and Balaj
were acquitted and Brahimaj was sentenced on only two of the
thirty-seven counts in the indictment.
The judgment came as a surprise to those who had not
followed the trial, causing resentment among those who needed no
evidence to 'know' that the accused were guilty.
A reminder, then, of the words of Louise Arbour,
former chief prosecutor, from 1997, before 'everybody knew' who and what
Ramush Haradinaj was. When she was asked why she hadn't already indicted
Arkan and Seselj, Arbour replied:
'This "general knowledge" is our worst enemy. I am
told all the time, "why didn't you indict this man or that man?
Everybody knows he is guilty". It is long way from what everybody
ostensibly knows to an indictment for crimes listed in the Statute of
the Tribunal that will withstand the test before the court. When the
accused are not famous personalities nobody asks us, "Why haven't you
indicted them?" In those ostensibly notorious cases, there is always a
suspicion that something is amiss if we don't act in accordance with the
general perception."
Obviously, in the Haradinaj et al. case, the
prosecution didn't manage to travel from the 'general perception' to the
evidence able to stand the test and meet the Tribunal's standard of
proof. Intimidation of potential prosecution witnesses, who either saw
or were victims of the crimes the former KLA commanders were charged
with, certainly remains an important reason why the prosecution failed
to prove its case, but it's not the only one. Other reasons why the
Trial Chamber couldn't have reached a different decision could be found
in almost three hundred pages of the statement of reasons appended to
the judgment.
One of the reasons is the errors in the investigation
and in particular the inexplicable mistakes of investigators made in the
identification procedure. The Trial Chamber concluded that the
investigators often failed to follow the OTP guidelines for photo board
identification. They forgot to check if the witnesses had previously
seen the accused on TV or in the press and didn't warn the witnesses
that the photo of an accused need not be in the photo board. One of the
investigators didn't ask the witness to mark the photo board on which he
identified Balaj as the person who arrested him and had him put into a
well up to his waist while he raped the witness's wife. Another
investigator forgot to write down in the statement that the witness
identified Balaj on a photo board as the KLA soldier who took away his
sister. She was later killed, together with her mother and another
sister and thrown into the Radonjic lake canal.
A significant amount of the evidence on which the OTP
based its indictment against Haradinaj et al. was obtained from the
Serbian interior ministry. They were 'official records' of interviews
with detained Kosovo Albanians, statements taken during the interviews
of 'terrorist' suspects and reports of 'informers' that collaborated
with the State Security Service. These documents, however, were not
admitted into evidence for a number of reasons. The acts and conduct of
the accused were described by persons not available for the
cross-examination. Secondly, it was easy for the defense to prove that
some of statements were given under duress. When one of the chiefs of
the Pristina State Security Service confirmed before the Tribunal that
his 'informers' were mostly motivated by 'money, politics or blackmail',
it clearly didn't contribute to the credibility of documents obtained
from the Serbian Interior ministry and the state security service in the
judges' eyes.
Although there are only intimations of this in the
judgment, it is clear that the bungling prosecution team also
contributed to this outcome. The prosecution team was put together just
before the trial began, after several prosecutors with more experience
refused to take on the case because they had doubts about the
reliability of evidence. This much could be inferred from the public
slanging matches between Carla Del Ponte and her former associates. The
judgment explained that the prosecution team engaged in 'overkill' as it
tried to prove the murder of Sanije Balaj. The Trial Chamber admitted
that it would have been able to conclude that she was killed while she
was in KLA custody, had the prosecution not had called so much evidence.
Because of all this evidence, the judges realized there was a
'reasonable alternative' to this conclusion.
The prosecution is now studying the judgment to see if
the Trial Chamber left them any grounds for appeal. It is almost certain
that if they decide to appeal, one of the grounds will be the 'erroneous
application of the standard of proof'. The prosecution will try to
convince the Appeals Chamber that the judgment was based not on the
standard of reasonable doubt but on the concept of any doubt, including
the doubt not corroborated by evidence or even contrary to logic and
common sense.
The prosecution used the same argument to appeal the
acquittal of Fatmir Limaj and Sefer Halilovic but the Appeals Chamber
rejected both appeals. |