Post by Fender on Apr 16, 2008 5:14:49 GMT -5
"Beyond any reasonable doubt"
13 April 2008
William Montgomery
It is hard to know just where to begin when writing about the acquittal of Ramush Haradinaj on 37 counts of war crimes. On so many levels and for so many reasons, the whole process has been a travesty of justice and a stain on the International Criminal Tribunal for the former Yugoslavia.
Kosovo Albanians celebrate the Haradinaj ruling (FoNet)
The direct result of the verdict is to widen, not narrow, the gulf, which exists between the two major ethnic groups involved. It also reinforces once again the bitterness, which the Serbs feel about the Kosovo process and their treatment by the Western International Community.
To begin at the beginning, the primary reason why Carla del Ponte ordered her investigators to come up with indictments against the KLA in the first place was to respond to Serbian objections that ICTY discriminated against them and did not treat crimes in which they were the victims with equal concern. It was part of her effort to secure Serbian support for the transfer of Serbian indictees such as Mladiæ and Karadžiæ to The Hague.
Her prosecutors warned from the beginning that reaching the level of proof needed for a conviction in this case was going to be extremely difficult. Not because of any lack of effort on their part, but due to the difficulty of proving responsibility "beyond any reasonable doubt" in a guerilla warfare situation far different than anywhere else in the former Yugoslavia.
There is a huge difference between what might be conventional belief/certainty about a crime and drawing up a precise indictment upon the incident charging a specific offense to a specific person and then proving it "beyond a reasonable doubt" in a court of law. The Haradinaj case is a classic example of that dichotomy, but both the U.S. and European legal systems are filled with similar examples.
Reading the 274-page judgment is painful, as the convoluted reasoning by which the judges dismiss one count of murder or torture after another as "not proven beyond a reasonable doubt" seems so often to defy common sense. It will be interesting to see if the Prosecution appeals the judgment. Certainly the judges set an extremely high bar for "beyond reasonable doubt." Many may well say an impossibly high bar for the specific circumstances…
The KLA by its very nature was a much more difficult target for investigators than the organized military/police forces of the governments of Croatia, Serbia, Montenegro, and even wartime Bosnia. One of the most important pillars of convictions for ICTY has always been documentary evidence showing orders, chains of command, and reports on activities of military and police units. Because of the very nature of the KLA, there was almost no such documentary evidence.
Communications among units of the KLA were poor, records nonexistent or destroyed, and considerable range of initiative and responsibility was left to individual commanders in different parts of the country. Recruits received only a couple weeks of training. While it was easy to find victims of crimes, it proved very difficult to firmly identify the perpetrators and even harder to prove they received direction from higher elements. Positive witness identifications were usually weak or non-existent. Family members and friends may be absolutely certain (and correct) about who did what to their loved ones, but proving it in a court of law was a very different matter.
While all the ethnic groups facing indictments of their members have responded with threats and violence against anyone willing to speak out "against their own," the specific environment of Kosovo, including its size and cultural attitudes, amplified that problem to an extreme level. The prosecution and the judges both expressed officially their frustration at the level of fear of potential witnesses, citing it as higher than in any other trial that ICTY has ever conducted and a major impediment to their work. Many witnesses had to be forced to testify and some refused to do so even threatened with potential imprisonment.
While accounts differ as to how many key witnesses against Haradinaj and his two co-indictees were actually murdered to prevent their testimony, everybody agrees that at least some were. How many other witnesses were dissuaded from testifying fully and honestly is unknown, but obviously very large. Many of the charges in the indictment, which seemed strong and rather clear-cut, had been based on witness testimony, which during the trial itself was conspicuously absent.
Finally, the indictment and potential conviction of the Prime Minister of the Kosovo Provisional Government was politically explosive. During his limited time in office, he had impressed the International Community with his practical approach to problems and willingness (at least from their viewpoint) to reach out to the Kosovo Serbs.
Moreover, the indictment alone could well have set off violent demonstrations all around Kosovo. That it went so smoothly in the end was solely because it had been fully discussed with Haradinaj in advance and he agreed to cooperate. The verdict, whatever it would be, would unquestionably have significant implications for the stability of the region. It went to the very heart of two radically different views of events in Kosovo in 1998-99, that of the Serbs and Kosovo Albanians.
Given all of the above, one would think that the International Community would have bent over backwards by its words and actions to ensure that everything connected with the trial would be perceived by all parties to be handled with the highest possible standards of credibility. But in a triumph of myopic vision over logic, exactly the opposite happened.
-A depressing number of representatives of the International Community in Kosovo at the highest levels continued to praise and visibly show support to Haradinaj after his indictment. This sent a message both to potential witnesses and to the Serbs that he had the support of the International Community.
-The ICTY, totally contravening its standard restrictions on the actions and movements of indictees given provisional release while awaiting trial, permitted Haradinaj to engage in limited political activity. This again showed a double standard in treatment. No other indictee has ever been given anything similar. A Croatian indictee on provisional release (Mladen Markaè) was abruptly ordered back to The Hague merely for going hunting.
-The problem of witness intimidation and the lack of documentary and other forms of evidence were well known. Yet in contrast to the conditionality and pressure put on Croatia, Bosnia, and Serbia to fully cooperate with ICTY, no such pressure was put on Kosovo or on Albania (there were reports of KLA war crimes being committed there against Serbs, as well as certain knowledge that it was a source of weapons and a major transfer point for personnel and resources for the KLA). No threats were ever made, for example, that the independence process of Kosovo could be delayed due to failure of the Provisional Government and all its members to fully cooperate with the ICTY.
We are now tasting the bitter fruit of this process and how the International Community handled it. Those participating individuals in the International Community who read this criticism will shrug their shoulders and say, "he doesn't understand how explosive the situation was in Kosovo and how violent a reaction could have taken place here if the Haradinaj situation had not been handled so delicately."
My answer to that is pretty simple. Similar concerns did not prevent the International Community from blocking Croatia's admission to NATO and the EU because of failure to turn over Gotovina or from insisting on extradition of others in that country in spite of huge protests and political turmoil. It did not stop the International Community from applying continuous pressure on Serbia which has led to the growth of the Radical Party and also at least in part to Prime Minister Ðinðiæ's assassination.
So, what we have, clearly, is a double standard. Those responsible for it should think long and hard of the consequences of this policy. We might not have too long to wait for one sample. May 11 (Serbian election day) is only a few weeks away.
13 April 2008
William Montgomery
It is hard to know just where to begin when writing about the acquittal of Ramush Haradinaj on 37 counts of war crimes. On so many levels and for so many reasons, the whole process has been a travesty of justice and a stain on the International Criminal Tribunal for the former Yugoslavia.
Kosovo Albanians celebrate the Haradinaj ruling (FoNet)
The direct result of the verdict is to widen, not narrow, the gulf, which exists between the two major ethnic groups involved. It also reinforces once again the bitterness, which the Serbs feel about the Kosovo process and their treatment by the Western International Community.
To begin at the beginning, the primary reason why Carla del Ponte ordered her investigators to come up with indictments against the KLA in the first place was to respond to Serbian objections that ICTY discriminated against them and did not treat crimes in which they were the victims with equal concern. It was part of her effort to secure Serbian support for the transfer of Serbian indictees such as Mladiæ and Karadžiæ to The Hague.
Her prosecutors warned from the beginning that reaching the level of proof needed for a conviction in this case was going to be extremely difficult. Not because of any lack of effort on their part, but due to the difficulty of proving responsibility "beyond any reasonable doubt" in a guerilla warfare situation far different than anywhere else in the former Yugoslavia.
There is a huge difference between what might be conventional belief/certainty about a crime and drawing up a precise indictment upon the incident charging a specific offense to a specific person and then proving it "beyond a reasonable doubt" in a court of law. The Haradinaj case is a classic example of that dichotomy, but both the U.S. and European legal systems are filled with similar examples.
Reading the 274-page judgment is painful, as the convoluted reasoning by which the judges dismiss one count of murder or torture after another as "not proven beyond a reasonable doubt" seems so often to defy common sense. It will be interesting to see if the Prosecution appeals the judgment. Certainly the judges set an extremely high bar for "beyond reasonable doubt." Many may well say an impossibly high bar for the specific circumstances…
The KLA by its very nature was a much more difficult target for investigators than the organized military/police forces of the governments of Croatia, Serbia, Montenegro, and even wartime Bosnia. One of the most important pillars of convictions for ICTY has always been documentary evidence showing orders, chains of command, and reports on activities of military and police units. Because of the very nature of the KLA, there was almost no such documentary evidence.
Communications among units of the KLA were poor, records nonexistent or destroyed, and considerable range of initiative and responsibility was left to individual commanders in different parts of the country. Recruits received only a couple weeks of training. While it was easy to find victims of crimes, it proved very difficult to firmly identify the perpetrators and even harder to prove they received direction from higher elements. Positive witness identifications were usually weak or non-existent. Family members and friends may be absolutely certain (and correct) about who did what to their loved ones, but proving it in a court of law was a very different matter.
While all the ethnic groups facing indictments of their members have responded with threats and violence against anyone willing to speak out "against their own," the specific environment of Kosovo, including its size and cultural attitudes, amplified that problem to an extreme level. The prosecution and the judges both expressed officially their frustration at the level of fear of potential witnesses, citing it as higher than in any other trial that ICTY has ever conducted and a major impediment to their work. Many witnesses had to be forced to testify and some refused to do so even threatened with potential imprisonment.
While accounts differ as to how many key witnesses against Haradinaj and his two co-indictees were actually murdered to prevent their testimony, everybody agrees that at least some were. How many other witnesses were dissuaded from testifying fully and honestly is unknown, but obviously very large. Many of the charges in the indictment, which seemed strong and rather clear-cut, had been based on witness testimony, which during the trial itself was conspicuously absent.
Finally, the indictment and potential conviction of the Prime Minister of the Kosovo Provisional Government was politically explosive. During his limited time in office, he had impressed the International Community with his practical approach to problems and willingness (at least from their viewpoint) to reach out to the Kosovo Serbs.
Moreover, the indictment alone could well have set off violent demonstrations all around Kosovo. That it went so smoothly in the end was solely because it had been fully discussed with Haradinaj in advance and he agreed to cooperate. The verdict, whatever it would be, would unquestionably have significant implications for the stability of the region. It went to the very heart of two radically different views of events in Kosovo in 1998-99, that of the Serbs and Kosovo Albanians.
Given all of the above, one would think that the International Community would have bent over backwards by its words and actions to ensure that everything connected with the trial would be perceived by all parties to be handled with the highest possible standards of credibility. But in a triumph of myopic vision over logic, exactly the opposite happened.
-A depressing number of representatives of the International Community in Kosovo at the highest levels continued to praise and visibly show support to Haradinaj after his indictment. This sent a message both to potential witnesses and to the Serbs that he had the support of the International Community.
-The ICTY, totally contravening its standard restrictions on the actions and movements of indictees given provisional release while awaiting trial, permitted Haradinaj to engage in limited political activity. This again showed a double standard in treatment. No other indictee has ever been given anything similar. A Croatian indictee on provisional release (Mladen Markaè) was abruptly ordered back to The Hague merely for going hunting.
-The problem of witness intimidation and the lack of documentary and other forms of evidence were well known. Yet in contrast to the conditionality and pressure put on Croatia, Bosnia, and Serbia to fully cooperate with ICTY, no such pressure was put on Kosovo or on Albania (there were reports of KLA war crimes being committed there against Serbs, as well as certain knowledge that it was a source of weapons and a major transfer point for personnel and resources for the KLA). No threats were ever made, for example, that the independence process of Kosovo could be delayed due to failure of the Provisional Government and all its members to fully cooperate with the ICTY.
We are now tasting the bitter fruit of this process and how the International Community handled it. Those participating individuals in the International Community who read this criticism will shrug their shoulders and say, "he doesn't understand how explosive the situation was in Kosovo and how violent a reaction could have taken place here if the Haradinaj situation had not been handled so delicately."
My answer to that is pretty simple. Similar concerns did not prevent the International Community from blocking Croatia's admission to NATO and the EU because of failure to turn over Gotovina or from insisting on extradition of others in that country in spite of huge protests and political turmoil. It did not stop the International Community from applying continuous pressure on Serbia which has led to the growth of the Radical Party and also at least in part to Prime Minister Ðinðiæ's assassination.
So, what we have, clearly, is a double standard. Those responsible for it should think long and hard of the consequences of this policy. We might not have too long to wait for one sample. May 11 (Serbian election day) is only a few weeks away.