Why did Prosecution Fail to Prove what 'Everybody knows' - Part Two

DIFFERENCE BETWEEN 'PROBABILITY' AND EVIDENCE 'BEYOND REASONABLE DOUBT'

The Hague, 08.04.2008.

The judgment in the Haradinaj, Balaj and Brahimaj case notes that there was no evidence proving beyond reasonable doubt who killed Albanians, Serbs and Roma whose bodies were found in the Radonjic lake canal. The Trial Chamber does consider that there is 'likelihood' that KLA members were responsible for their deaths

The failure of the prosecution to prove who killed 30 Albanians, Serbs and Roma whose bodies were found in September 1998 in the Radonjic Lake canal is one of the reasons why the Trial Chamber acquitted former KLA commanders Ramush Haradinaj and Idriz Balaj. Only Lahi Brahimaj was convicted on only two of the 37 counts in the indictment. The prosecution claimed that they were all killed while 'they were in the KLA hands'. The defense denied this allegation, noting that it was possible that the bodies had been planted by the Serbian police or army.

The Trial Chamber rejected the defense claims about 'planted bodies', but it did not accept the prosecution argument that they were all victims of the KLA. In the view of the Trial Chamber, the evidence called during the trial was 'not precise, unreliable or simply non-existent'.

In the opinion of the judges, the only thing that was proven was that most of these persons had gone missing under suspicious circumstances and that several months later their bodies reappeared in the Radonjic lake canal. What happened to them in the meantime remained unclear. The victims were last seen alive on various locations in three municipalities in southwest Kosovo in a five-month time span. The fact that many of them were last seen in the areas controlled by the KLA - the Radonjic lake canal itself was one such location - 'indicates there is a probability' that the KLA kidnapped them and killed them and then hid their bodies in the lake canal, or that they were brought there and executed on the spot, the judges say. One of the concrete walls of the canal was riddled with bullets, which 'indicates there is a probability' that some of the victims were killed there. However, the Trial Chamber stated, this could not lead to a more general conclusion as to what happened to other victims whose bodies were found 700 to 2,500 meters from that concrete wall.

As the judges clarified giving several examples, it is not possible to draw conclusions beyond reasonable doubt on the basis of 'probabilities'. The body of Kosovo Albanian Sanije Balaj was found in the Radonjic Lake canal after she had been arrested by the KLA members. The evidence, however, points to 'a reasonable alternative' that she was killed after she was released from the KLA detention because she was carrying a large amount of money with her. In the case of the murder of Nurija and Istref Krasniqi, the Trial Chamber found that it could not ignore the fact that it was possible that they were killed 'because of a family dispute or personal revenge'.

The prosecution failed to call evidence that the majority of persons whose bodies were found in the canal and who were identified had ever been seen in the KLA detention facilities or that they had been arrested by the KLA. This was the case with Kosovo Serbs Velizar Stosic, Ilija Antic and Milovan Vlahovic who were all killed. Most of the evidence about their fate came through the testimony of their relatives, who said that they were last seen in the areas controlled by the KLA. The judges nevertheless found this insufficient for any conclusions as to who arrested them and who perpetrated this crime.

Bullet casings manufactured in China were found next to some of the bodies in the canal. Serbian police ballistic expert Milutin Visnjic concluded that they had been fired from the same weapons the KLA used in March 1998 in the fighting in the village of Pljancora. It was also used in the village of Glodjane in a clash between the Serbian police and the KLA members on the Haradinaj family property.

Although it considers Visnjic to be a 'credible witness', the Trial Chamber didn't accept his expert opinion. The notes he took while conducting the ballistic analysis allegedly burned down in the air strikes and he didn't have any documents to corroborate his findings. But even if Visnjic's analysis had been accepted, the judges note, it still didn't address important questions such as who fired this weapon at the Radonjic Lake and who had the weapons in the meantime.

The Trial Chamber set a very high threshold of proof for the prosecution, asking for the identity of the victims to be proven, proof of who kidnapped them and how they ended up in the hands of those who killed them. The Trial Chamber also insisted on getting evidence of what happened to the victims in the meantime, who the killers were and which formation they belonged to. Finally, it wanted proof of how the bodies ended up in the Radonjic Lake. The prosecution led such evidence for only seven of the Radonjic Lake victims. The Trial Chamber found beyond reasonable doubt that they were killed by the KLA soldiers. However, it was impossible to lay blame for these crimes on the accused as the prosecution, in the Chamber's view, failed to prove the existence of the joint criminal enterprise Haradinaj, Balaj and Brahimaj were charged with.