Two weeks after Gotovina, the ICTY acquits Haradinaj defendants

by Rhodri C. Williams

Just as the controversy surrounding the recent ‘Gotovina decision’ by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) was beginning to subside, another bombshell. In this case (involving a re-trial), the Trial Chamber yesterday acquitted three Kosovo Albanians accused of torture and murder against Serbs and others in western Kosovo in the late 1990s, ordering their immediate release.

This decision will no doubt be turned inside out today in the blogosphere, and rightly so. Taken together with the recent Gotovina judgment, it is part of the swan song of an institution created with great hopes (mixed with a degree of healthy skepticism from some quarters) just as the great post-Cold War wave of belief in the restorative power of human rights and international justice arguably crested.

Having endured into the post 9-11 era (in large part due to inexplicable delays in acquiring its most prominent suspects), the Tribunal’s jurisprudence remain not only relevant to the development of broader international criminal law, but also – for better or for worse – to both the consolidation and destabilization of national narratives in countries forged in wars now fought an entire generation ago. For those who did not experience these wars but whose political reality remains shaped by them, the Court’s decisions on individual responsibility for past crimes are likely to be taken as evidence of collective vindication or collective stigmatization, raising a real risk that the legacy of the ICTY may be to perpetuate rather than lay to rest wartime animosities.

This in itself is not a critique of the ICTY. The Tribunal can hardly be blamed if far more is read into their decisions than either they or those who shaped their mandate ever intended. However, it does place a particular onus on the Court to be seen to act professionally and impartially. Observers such as Marko Milovanovic have argued that the Appeals Chamber failed this test in Gotovina, overturning a unanimous and comprehensive Trial Chamber decision by means of a rancorously split judgment only sixty pages long.

So what impact can Haradinaj be expected to have on the debate? At first blush, both the parallels and differences with the Gotovina judgment are striking.

In terms of parallels, both decisions have been taken as a form of absolution for newly (and in one case perhaps yet incompletely) forged countries whose formative experiences involved fighting against and ultimately expelling Serbs. While Gotovina was received in Zagreb to public adulation, the acquittal of Haradinaj – who interrupted a term as Prime Minister of Kosovo to go to the Hague in 2005 – was met with no less triumphalism in Prishtine/Pristina. According to the BBC:

Crowds in the capital Pristina watched the latest verdict on a giant screen, and celebrated his acquittal by letting off fireworks and cheering.

Mr Haradinaj’s lawyer, Ben Emmerson, said his client now wants to restart his political career.

“With the consent of the people, he will soon be resuming his rightful position as the political leader of the country,” Mr Emmerson told reporters at the court.

His face is splashed across vast billboards in Kosovo, accompanied by slogans like “the leader who keeps his word” and “forward with a clean slate”.

Meanwhile, the official Serbian reaction has been a predictable retreat into wounded victimhood. Again from BBC:

President Tomislav Nikolic said in a statement that the International Criminal Tribunal for the former Yugoslavia was formed “to try the Serbian people”.

He said the verdict would increase Euroscepticism in Serbia.

Other similarities include the fact that the Trial Chamber in Haradinaj rejected the Prosecutor’s allegation that the defendants participated in a ‘joint criminal enterprise’ (JCE), in this case aimed at consolidating the control of the Kosovo Liberation Army (KLA) over western Kosovo “by the unlawful removal and mistreatment of Kosovo Serb civilians and by the mistreatment of Kosovo Albanian and Kosovo Roma/Egyptian civilians, and other civilians, who were, or were perceived to have been, collaborators with the Serbian forces or otherwise not supporting the KLA.”

However, there are some crucial differences. First, and most important, the Trial Chamber had already rejected most counts against the defendants in 2008 and a re-trial was ordered by the Appeals Chamber based on concerns about witness intimidation. A second important point is that the decision in Haradinaj appears to have been uncontroversial among the judges in the Chamber, without the sort of dissension that will leave the Gotovina decision forever open to second-guessing.

At the end of the day, however, one key parallel between the cases is likely to haunt the politics of the region for some time to come. In both cases, crimes were undoubtedly committed against Serb civilians that led to the death of some and the wrongful (and in most cases permanent) expulsion of many of the rest from their ancestral homes. In neither case has the Tribunal succeeded in attributing responsibility for these crimes. You can explain that one up and down, but it will be hard to portray it as much of a success for the institution.

2 responses to “Two weeks after Gotovina, the ICTY acquits Haradinaj defendants

  1. Massimo Moratti

    It is easy to predict that in the end, the overall perception of the ICTY in Serbia, will be very negative. The double hit of the Gotovina and Haradinaj acquittals, have probably dealt an unrecoverable blow to the reputation of the ICTY in Serbia, in the Serb held part of BIH, and most likely in Montenegro as well. The sense of victimization is indeed quite strong.
    Can it still be said that the ICTY has accomplished one of its stated goals, i.e. to remove collective guilt and focus on personal criminal responsibility? Had these decisions been procedurally undisputed, the position of the ICTY would be much easier but both of them have been the topic of very heated discussions. The two strongly dissenting opinions in the Gotovina case, highlight and summarise the problematic aspects of that sentence. The acquittal in the Haradinaj case was already anticipated (in fact the press in Pristina had announced it already during the summer this year) given the fact that there was not sufficient evidence against him, or, to put in other words, the evidence was… disappearing, in the sense that the witnesses little by little withdrew from the case, or in some cases died in mysterious circumstances. In this case, the ICTY is accused of failing to protect key witnesses, which is a quite serious allegation for a Tribunal, which often needs to rely on insiders to break the wall of silence of each ethnic group.
    At the same time, these acquittals mark the failure of the prosecutorial efforts, mainly led by Carla del Ponte, to find perpetrators, in all the ethnic groups in the former Yugoslavia. People in Bosnia used to say that “Tito’s justice” indeed meant that if a Croat was going to jail also a Bosniak and a Serb should go, just to keep the ethnic balance. Somehow, Carla del Ponte, as the Tribunal was starting to become effective, might have felt the same and started issuing indictments, for high profile figures, where however there was not enough evidence. This is the way the indictments for Halilovic Delic, Alagic, Hadzihasanovic and Kubura came about, or for example the cases in Macedonia against Boskovski and Turculovski. The impression about these cases were that they were all rather thin… and mostly people were indicted for being prominent figures in one ethnic group. The risk was that if the actual prosecution failed to prove the guilt, the entire case would be dismissed, even if indeed crimes were committed… Especially the Gotovina case seems to point at this… the majority of the Appellate Chamber seemed committed to prove that such prosecutorial line was wrong and should have been rejected and in this they come to conclusions that were defined as “grotesque” by their pairs.
    Defendants were acquitted, but crimes were committed. However, the result of such failures to prosecute the “big fish” is that most likely those crimes will go unpunished. Is it really reasonable to expect that local prosecutors, in Croatia and Kosovo, in the euphoria of these acquittals will now pick up those case and start going after the perpetrators? For those familiar with the local societies in the Balkans, the answer is quite an easy one.

  2. Pingback: The fog of war crimes prosecution – the ICTY Appeals Chamber acquits Perišić | TerraNullius

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