Why did
Prosecution Fail to Prove what 'Everybody knows' - Part Three
OBVIOUS NEED NOT BE TRUE
The Hague, 09.04.2008.
In the judgment in the Haradinaj, Balaj and
Brahimaj case, the Trial Chamber used the murder of Sanije Balaj to show
that things that are 'obvious' and that 'everybody knows' need not be
true
Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, three
former KLA commanders, were charged with dozens of murder. The
prosecution called the most evidence and most witnesses to prove the
murder of a Kosovo Albanian woman, Sanije Balaj. A total of thirteen
witnesses took the stand to testify about her murder. This is one of the
reasons why the Trial Chamber dealt with her case most comprehensively
in the judgment acquitting Haradinaj and Balaj and convicting Brahimaj,
who was sentenced to six years in prison, on two out of thirty-seven
counts in the indictment. Another reason for this focus was because the
Trial Chamber wanted to show that things that are "obvious' or that
'everybody knows' need not be true.
The judges acknowledge that it might have seemed
'obvious' to them too that Sanije Balaj was killed while she was
detained by the KLA, under its authority. All the elements pointed to
that: she was arrested by the KLA, her name was on the list of 'Serbian
collaborators' kept by the KLA soldiers, she was taken to the KLA
headquarters where she was questioned, and her body was found in the
Radonjic Lake canal. The forensic analysis showed that she died a
violent death. Had the prosecution stopped there and not called any more
evidence, the judges admit they would likely have reached the obvious
conclusion about Sanije Balaj's fate.
The prosecution, however, continued calling more and
more evidence, and the Trial Chamber, giving carefully examined it,
found that 'the obvious conclusion would be the wrong conclusion'.
Sanije Balaj was arrested at a KLA check point near
the village of Barani on 12 August 1998. She was taken to the makeshift
barracks in Barani where she was questioned by Cuf Krasniqi, local KLA
commander. Numerous prosecution witnesses described what went on
afterwards in different terms.
Cuf Krasniqi claims that after the questioning he
ordered her to be released and she was taken home, escorted by Avni
Krasniqi. In his evidence before the Trial Chamber, Avni Krasniqi
claimed that Idriz Gashi, the commander of Podrimlje, ordered him to
take Sanije Balaj to the headquarters in Glodjani. In the words of Avni
Krasniqi, Gashi, who had been appointed commander by Haradinaj, took her
out of the car and killed her in the forest along the way. A couple of
days later, he said, Idriz Balaj came to collect her body and took it
away. In September 1998, the body of Sanije Balaj was discovered in the
Radonjic Lake canal together with bodies of thirty other Albanian, Serbs
and Roma victims.
The Trial Chamber concluded that Idriz Gashi killed
Sanije Balaj after she was released from the KLA headquarters. In its
opinion, Gashi was not a commander but a mere KLA 'soldier', as he was
described by Haradinaj in one of his orders. Despite the fact that the
evidence was called showing Sanije Balaj was arrested under suspicion of
collaboration with Serbian authorities, the Trial Chamber found it could
not conclude that this was the reason why she was murdered. There are
'reasonable alternatives' to this conclusion, one of them being that
Sanije Balaj was killed because she carried a large amount of money -
some DM 2,700.
The Trial Chamber found that the prosecution failed to
prove the existence of the joint criminal enterprise aimed at the
expulsion of Serbs and the suppression of actual or alleged
collaboration of Kosovo Albanians. Consequently, none of the three
accused could be found guilty of the crimes committed by other KLA
members, such as Gashi. The Trial Chamber found that Avni Krasniqi's
testimony about the involvement of Idriz Balaj in the removal of Sanije
Balaj's body was 'not corroborated enough' and inconsistent with the
testimonies of other witnesses and other physical evidence. |