The Prosecutor v. Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj (AC)

Court	International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber, The Netherlands
Case number	IT-04-84-A
Decision title	Judgment (Public)
Decision date	19 July 2010
Parties	The Prosecutor Ramush Haradinaj Idriz Balaj Lahi Brahimaj
Other names	ICTY, Appeals Chamber, Prosecutor v. Haradinaj et al., Case No. IT-04-84-A, Judgement, 19 July 2010.
Categories	Crimes against humanity, War crimes
Keywords	Appeal, crimes against humanity, cruel treatment, deportation, Dukagjin, Forcible transfer, Harassment, Kosovo, Murder, persecution, rape, Retrial, torture, war crimes
Links	Judgment (Public)
Other countries involved	Kosovo

Summary

In 1998 the Kosovo Liberation Army engaged in a campaign against civilians in Dukagjin, Kosovo. The three accused, Haradinaj, Balaj and Brahimaj were indicted on charges of war crimes and crimes against humanity for their roles in these crimes.

The Trial Chamber, however, found that only Brahimaj was guilty on two counts of war crimes.

The Appeals Chamber examined the findings of the Trial Chamber and the arguments of both the Prosecution and Brahimaj. It decided to grant the first ground and partially grant the third ground of appeal of the Prosecution. For the first ground, it held that the Trial Chamber failed to ensure that potentially important evidence will be presented during the trial. Therefore, it ordered the re-trial of the three accused for certain counts. For the third ground, it ruled that the Trial Chamber erred in its findings relating to the crime of cruel treatment. Although it ruled that this crime did occur, the Appeals Chamber found Balaj not liable for it, and upheld the acquittal.

Out of the 19 grounds of appeal of Brahimaj, the Appeals Chamber only partially granted one, on the basis of errors in the Trial Chamber's findings with regard to the charges on torture.

Procedural history

The third amended indictment was filed on 7 September 2007. Trial Chamber I rendered its decision on 3 April 2008.

The parties appealed this decision.

Related developments

Pursuant to the Appeals Chamber’s order, the re-trial commenced on 18 August 2011. The closing arguments were heard between 25 and 26 June 2012.

Legally relevant facts

Between 1 March and 30 September 1998 the Kosovo Liberation Army (KLA) committed crimes against the civilians of the Dukagjin area in Kosovo. During this time, Haradinaj was the overall commander of the KLA forces in this area, while Balaj was the head of a special unit, and Brahimaj the Deputy Commander of the Dukagjin Operative Staff (paras. 2-3).

The Prosecution argued that the three accused participated in a joint criminal enterprise which aimed to assert the KLA's control over the Dukagjin region through the alleged crimes. The Trial Chamber, however, disagreed, on the basis of insufficient evidence to sustain such allegation and acquitted the three accused of responsibility for participation in a joint criminal enterprise (paras 3-4). It found only Brahimaj individually responsible on two counts of war crimes (para. 5).

Both the Prosecution and Brahimaj appealed the Trial judgment, the former on three grounds while the latter on 19 grounds.

Core legal questions

Did the Trial Chamber err in its findings as argued by the Prosecution and Brahimaj?

Specific legal rules and provisions

Article 25 of the ICTY Statute.
Rules 117 and 118 of the Rules of Procedure and Evidence of the ICTY.

Court's holding and analysis

The Appeals Chamber first addressed the three grounds adduced by the Prosecution.

In its first ground, the Prosecution argued that the refusal of the Trial Chamber to grant additional time for the testimony of a witness prevented the assertion of crucial evidence (paras. 14-15). The Appeals Chamber agreed, finding that the Trial Chamber should have ensured the presence of potentially relevant evidence (paras. 48-49). The Chamber ordered a partial re-trial (paras. 50-51).

The Appeals Chamber dismissed the second ground of appeal (para. 62).

The third ground challenged the Trial Chamber's findings of law with regard to the cruel treatment of a witness (para. 64). The Appeals Chamber found that the mental suffering of the witness was sufficient to constitute a serious attack upon his human dignity (para. 95). Although the Chamber concluded that the crime did occur, it found Balaj not responsible for it (paras. 102-103).

As concerns Brahimaj's 19 grounds of appeal, the Appeals Chamber dismissed all but one ground. In the ninth ground, Brahimaj argued that the Trial Chamber erred in its findings with regard to his conviction for torture (para. 286). The Appeals Chamber partially agreed, but since this conviction was based on more than one ground, it upheld Brahimaj's conviction (para. 315).