The Prosecutor at the International Criminal Tribunal for the former Yugoslavia (ICTY) has asserted that the Prosecution was deprived of its right to a fair trial in the case against former Kosovo Liberation Army (KLA) commanders Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj.

In its Notice of Appeal of 1 May 2008, the Prosecution claims that witness testimony relating to central issues in the case was not heard by the Trial Chamber due to ‘prevailing circumstances of witness intimidation and fear’. It asserts that crucial evidence was not heard and that the Trial Chamber did not allow sufficient time for the Prosecution to obtain testimony from witnesses who refused to appear in court.

The Prosecution submitted that the direct evidence which would have been given by the witnesses, particularly Shefqet Kabashi – one of three witnesses charged with contempt of the Tribunal for failing to testify in the trial – was crucial in determining the participation of the accused in a joint criminal enterprise (JCE).

On 3 April 2008, Trial Chamber I acquitted Ramush Haradinaj and Idriz Balaj of all charges related to crimes committed by KLA forces between March and September 1998. The third accused, Haradinaj’s uncle – Lahi Brahimaj, was convicted of two counts of violations of the laws and customs of war and sentenced to six years’ imprisonment.

Re-trial possibility

The trial against Haradinaj – the former Prime Minister of Kosovo – and the two other KLA commanders was unique in that the accused elected not to present a case in their defence. The three accused maintained that they had no case to answer.

If the Prosecution’s appeal were to be granted and the decisions to acquit Haradinaj, Balaj and Brahimaj of criminal responsibility based on JCE liability were reversed, in all likelihood a re-trial would be ordered. This would be the first re-trial in the Tribunal’s history.

In addition to the JCE appeal, the Prosecution submitted two grounds of appeal against Irdiz Balaj. These relate to the murder of one of the witnesses’ mother and the rape, torture and cruel treatment of another witness.

On 5 May, Lahi Brahimaj submitted an appeal against both his sentence and conviction.