Prosecutor v Haradinaj (Retrial)

• Judge: Hall,Moloto,Delvoie
• Docket Number: (Case No IT-04-84bis-T)
• Date: 29 November 2012
• Court: International Criminal Tribunal for the Former Yugoslavia

International Criminal Tribunal for the former Yugoslavia, Trial Chamber II

(Moloto, Presiding Judge; Hall and Delvoie, Judges)

(Case No IT-04-84bis-T)

Prosecutor

and

Haradinaj, Balaj and Brahimaj1

(Retrial Judgment with Confidential Annex)2

International criminal law Crimes against humanity Violations of the laws or customs of war Statute of the International Criminal Tribunal for the former Yugoslavia Geneva Conventions Common Article 3 Retrial Joint criminal enterprise Requirements Common purpose Evidence required to sustain finding of joint criminal enterprise Individual criminal responsibility Direct and circumstantial evidence Murder Torture Persons taking no active part in hostilities

International tribunals International Criminal Tribunal for the former Yugoslavia Jurisdiction Residual clause Retrial Witness credibility

War and armed conflict Armed conflict Non-international armed conflict Definition Existence of armed conflict in Kosovo in 1998 Intensity of fighting Organization of armed groups De facto and de jure control Detainees Protected persons Civilians

Summary:3The facts:The accused, Ramush Haradinaj (the first accused), Idriz Balaj (the second accused) and Lahi Brahimaj (the third accused) were members of the Kosovo Liberation Army (KLA) who were involved in the armed conflict in Kosovo against Serbian forces4 in 1998,

during which a number of civilians disappeared, or were mistreated or killed. The accused were partially retried5 for alleged crimes against humanity and violations of the laws or customs of war committed against civilians in a detention facility in the village of Jabllanic/Jablanica6 in Gjakov/Dakovica municipality, in western Kosovo. Jabllanic/Jablanica was within the Dukagjin Operational Zone,7 one of the key strategic areas of the conflict

An Indictment had been confirmed against the accused on 4 March 2005 alleging that each of the accused, as a senior member of the KLA, was criminally responsible for sixteen counts of crimes against humanity, and nineteen counts of violations of the laws or customs of war contrary to Article 3 of the Statute of the International Criminal Tribunal for the Former Yugoslavia (the Statute). In addition, the Indictment alleged that the first accused was also responsible for one additional count of crimes against humanity and one additional count of violations of the laws or customs of war.

On 3 April 2008 the Trial Chamber had acquitted the first and second accused of all charges. It determined that the third accused was guilty of Count 28 (torture as a violation of the laws or customs of war) and Count 32 (torture and cruel treatment as violations of the laws or customs of war), for which he was sentenced to six years' imprisonment; he was acquitted of all other charges. The Prosecutor appealed, submitting that the Trial Chamber had erred in refusing requests for additional time to exhaust all reasonable steps to secure the testimony of two crucial witnesses, Witness 80 and Witness 81. On 21 July 2010 the Appeals Chamber allowed the appeal with respect to Counts 24, 26, 28, 30, 32 and 34, which had been affected by the inability to secure that testimony. In this partial retrial, those Counts were referred to in the operative Indictment as Counts 1 to 6.

As relevant, the operative Indictment alleged that, between 1 March and 30 September 1998 (the Indictment period), an armed conflict existed in Kosovo between the KLA and the Serbian Forces, and that the accused, with other KLA members, were participants in a joint criminal enterprise (JCE),8 the

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 Serb civilians, and by the mistreatment of Kosovar Albanian and Kosovar Roma/Egyptian civilians, and other civilians, who were, or were perceived to be, collaborators with the Serbian forces or otherwise not supporting the KLA. It was alleged that, by virtue of their participation in the JCE, each accused was individually criminally responsible for the acts and omissions of his co-accused and other members of the JCE, including the crimes alleged in Counts 1 to 6

As relevant, the Indictment alleged that, by their acts and omissions, and as participants in a JCE:

• the first accused was criminally responsible for four counts of murder;9 six counts of cruel treatment;10 and five counts of torture;11

• the second accused was criminally responsible for four counts of murder;12 six counts of cruel treatment;13 and five counts of torture;14 and

• the third accused was criminally responsible for three counts of murder;15 four counts of cruel treatment;16 and three counts of torture17

  contrary to Common Article 3(1) of the Geneva Conventions,18 and punishable under Article 319 and Article 7(1)20 of the Statute

  In the alternative, the Indictment alleged that:

• the first accused committed,21 or aided and abetted22 the commission of the crimes alleged in Count 1; and ordered,23 instigated,24 or aided and abetted the commission of the crimes alleged in Count 6;

• the second accused committed, or aided and abetted the commission of the crimes alleged in Count 1; and committed, planned,25 or aided and abetted the commission of the crimes alleged in Count 6; and

• the third accused ordered, instigated, or aided and abetted the commission of the crimes alleged in Count 1; ordered, instigated, or aided and abetted the commission of the crimes alleged in Count 2; and committed, planned, or aided and abetted the commission of the crimes alleged in Count 6.

Held:The accused were acquitted of all charges.

(1) Article 21(3)26 of the Statute enshrined the presumption of innocence for all accused. The burden of proving the guilt of the accused beyond reasonable doubt was placed on the Prosecutor (para. 10).

(2) Article 3 of the Statute was a residual clause, which provided the Tribunal with jurisdiction over all serious violations of humanitarian law that did not fall under Articles 2, 4 or 5 of the Statute. To fall within Article 3, a crime had to constitute an infringement of a rule of international humanitarian law that was customary in nature, or (if contained within treaty law) had to meet relevant treaty criteria; had to constitute a serious violation; had to be serious; and had to entail the individual criminal responsibility of the accused. Murder, cruel treatment and torture, each prohibited under Common Article 3 of the Geneva Conventions, were all triable under Article 3 of the Statute (paras. 38990).

(3) To establish a breach of Article 3 of the Statute, the Prosecutor had to prove beyond reasonable doubt that there was an armed conflict (whether international or internal) during the Indictment period; that the acts or omissions constituting a crime were closely related to the armed conflict (a nexus between the armed conflict and the perpetrator's ability to commit the crime); and that the victims were not taking active part in hostilities at the relevant time (paras. 391 and 397).

(4) A non-international armed conflict existed where there was a resort to force between States, or protracted armed violence between government authorities and organized groups, or between groups within a State. Armed groups had to have some degree of organization and a degree of leadership capable of exercising some control over group members. A non-international armed conflict existed in Kosovo, including the Dukagjin Operational Zone, between the KLA and the Serbian armed forces from 22 April to 30 September 1998. However, the intensity of fighting and the level of organization of KLA

members prior to 22 April 1998 were not sufficient to constitute an armed conflict. In any event, the relevant alleged criminal acts all occurred after 22 April and before 30 September 1998 (paras. 125, 3923, 395, 409, 410 and 426)

(5) None of the victims of the crimes alleged in Counts 1 to 6 was taking an active part in the hostilities at the relevant times. All of the crimes established were undertaken by KLA members and were directly related to the armed conflict, satisfying the nexus requirement (paras. 412, 434, 467, 477, 516, 524, 529, 579 and 610).

(6) With respect to Counts 1 and 2, the evidence established that the victims left their home villages on 17 or 18 May, and 20 May 1998 respectively, and disappeared. However, the Prosecutor provided no credible or direct evidence as to the circumstances of, or events following, their disappearances. The crimes alleged in Counts 1 and 2 were not established (paras. 45960, 4634, 4724).

(7) With respect to Count 3, the evidence established that, on 13 June 1998, the victim was stopped by KLA soldiers and taken to the KLA compound in Jabllanic/Jablanica. He was detained for approximately six weeks, during which time he was severely beaten, including by the third accused, upon the accusation that he was a Serb spy. The victim's treatment satisfied the actus reus of both cruel treatment and torture, and was carried out with the requisite mens rea for both crimes (paras. 4803 and 495).

(8) With respect to Count 4, the evidence established that, on 13 June 1998, the first named victim was stopped by KLA soldiers, and taken to Jabllanic/Jablanica. He was detained and severely beaten on the basis of his Serbian ethnicity. His treatment satisfied the actus reus of both cruel treatment and torture, and was carried out with the requisite mens rea for both crimes. No evidence was presented with respect to what happened to the victim after 14 June 1998, however, and the crime of murder was not established. The evidence further established that an unidentified Bosnian man and three unidentified Montenegrin men were detained at Jabllanic/Jablanica for several days in June 1998, and were subjected to beatings and were stabbed. Their treatment satisfied the actus reus of cruel treatment, and was carried out with the requisite intent. In addition, the...