New Kosovo Court confronts witness protection fears

By Marija Ristic

The protection of witnesses testifying about the Kosovo war has long been a major challenge, but the new Hague-based Kosovo Specialist Chambers believes it can succeed where others failed.

“I am obligated to protect witnesses and to keep confidential and secure all information that should be protected to ensure that witnesses who give evidence are not intimidated or harmed or threatened,” the chief prosecutor at the Specialist Chambers, US lawyer David Schwendiman, told his first press conference last month.

This new court, based in The Hague, aims to prosecute crimes committed by Kosovo Liberation Army members from 1998 until 2000, and witness protection will be one of its key challenges, as Schwendiman acknowledged.

“I will not discuss nor disclose information about our witnesses. Neither will I discuss our means and methods for protecting those who are vulnerable because of their role in our investigations or any prosecution,” he insisted after being asked how the new court will ensure that witnesses are not intimidated.

The failure by the domestic institutions and international missions in Kosovo to keep witnesses safe and prosecute war crimes without political interference was one of the key reasons why the European Union, backed by the US and Russia, decided to establish the new hybrid court, which is officially called the Kosovo Specialist Chambers and Specialist Prosecutors Office.

The court will have international judges and prosecutors, but it will work under Kosovo law and is expected to start its first judicial activities at the beginning of next year. It is only waiting for the approval of the Dutch parliament before it issues its first indictments.

New court plans ‘robust’ protection

The way that witness protection will work at the new Kosovo specialist court has not been fully revealed due to security concerns, but court officials told the Balkan Investigative Reporting Network (BIRN) that they believe the system will work.

According to the Law on Specialist Chambers that the Kosovo parliament adopted in August last year, the court will have a Witness Protection and Support Office, which will deal with security arrangements and protective measures for witnesses, as ordered by the judges. Like in the ICTY, any threats, intimidations and breaches to protective measure orders can be prosecuted.

“The law creates the framework for a robust witness protection measures, with full respect for the rights of the defence. We intend to implement the highest standards of protection for individuals who may be at risk on account of their participation in the judicial process. This is something we take very seriously,” said Fidelma Donlon, the registrar of the Specialist Chambers.

According to Joao Sousa, spokesperson for the Kosovo Specialist Prosecutor’s Office(SPO), witness protection has been a central concern since the start of its investigations.

“We have always taken appropriate steps to protect the vulnerable. The SPO is likewise committed to protect our information and our sources. Witness protection remains one of the SPO’s highest priorities,” he said.

Fourth time lucky?

The new court will be the fourth attempt by the international community to ensure that the crimes allegedly committed by senior officials from the Kosovo Liberation Army (KLA), the guerrilla group that fought for independence from Serbia in the late 1990s, are prosecuted.

For the past 17 years since the war ended, the international community has been administrating justice in Kosovo, but its results have been poor, with fewer than 20 final verdicts in war crimes cases.

The conflict in Kosovo broke out in 1998 when the KLA fought Serbian police in an attempt to win independence for the province from Yugoslavia. It escalated in 1999 when NATO launched an offensive against Slobodan Milosevic’s Yugoslav forces, and around 10,000 Kosovo Albanians were killed and 700,000 more were expelled.

Although the war officially ended in June 1999, the violence continued, as retaliation was sought against Kosovo Serbs for the crimes committed by Belgrade’s forces. Some 200,000 Serbs fled Kosovo, and 1,666 people, both Albanians and Serbs, still remain missing.

Since then, several mostly internationally-administered bodies have been in charge of prosecuting the crimes committed from 1998 until 2000.

Initially it was the UN-backed International Criminal Tribunal for the Former Yugoslavia, ICTY, which had five cases related to the Kosovo war. In Kosovo itself, the UN set up its own mission, UNMIK, which was supposed to deal with crimes committed by lower-level perpetrators. From 2008 onwards, the EU rule-of-law mission, EULEX, continued the work of UNMIK and trained local prosecutors to deal with war crimes in preparation for when the EU mission ends.

First warnings about witness intimidation

The first prosecutor to speak openly about witness intimidation in Kosovo cases and the problems her team was facing was Carla Del Ponte, who was the ICTY’s chief prosecutor from 1999 to 2007.

Del Ponte said that “the investigation of the Kosovo Liberation Army fighters appeared to be the most frustrating of all the investigations done by the ICTY”.

In her book Madame Prosecutor, published in 2009, she wrote that “witnesses were so afraid and intimidated that they even feared to talk about the KLA presence in some areas, not to mention actual crimes”.

“Those willing to testify had to be transferred to other countries with their entire families and many states were not willing to accept them,” she added.

After the war in 1999, Kosovo didn’t have a police force and the NATO Kosovo Force (KFOR) and UNMIK missions couldn’t guarantee security.

“I am convinced that UNMIK and even KFOR officers were afraid for their lives and the lives of their missions’ members. I think some of the ICTY judges were afraid that they would become a target for the Albanians,” Del Ponte wrote.

In her memoirs, as well as in her many reports to the UN Security Council, Del Ponte said that she believes the intimidation of witnesses seriously affected the verdicts in the cases in The Hague against two senior KLA officials, Fatmir Limaj and Ramush Haradinaj, both of whom were acquitted.

Numerous witnesses changed their testimonies during the trials, while others died in mysterious circumstances.

During the case against Ramush Haradinaj, one witness was found dead, which according to the official investigation, was the result of a car accident. In 2005, the ICTY sentenced Beqa Beqaj, a relative of one of the accused KLA men, to four months in prison because he interfered with two witnesses, demanding that they withdraw their testimonies in the case against Limaj.

In 2008, the ICTY then convicted Bajrush Morina, a deputy culture minister in Kosovo, for interfering with the administration of justice by pressurising a protected witness not to testify for the prosecution in the trial of Haradinaj.

Baton Haxhiu, a former editor in Kosovo, was also convicted by the ICTY of revealing the name of a protected witness and fined 7,000 euros.

At the same time, according to Del Ponte, serious abuses of witnesses in local cases in Kosovo also took place.

In 2002, a bomb was placed under a protected witness’s car; a year later, witness Tahir Zemaj was murdered in the town of Pec/Peja after testifying at the trial of a senior KLA official.Two other witnesses at the same trial, Sadik Musaj and Ilir Selamaj, were also killed.

Some UNMIK personnel, like the former head of the UN mission Soren Jessen Petersen, considered former KLA officials as the key to stability in Kosovo.

During Petersen’s years as the head of UNMIK from 2004 until 2006, ICTY prosecutors even accused his mission of not providing sufficient documents and failing to cooperate with prosecutions.

Del Ponte further alleged that UNMIK even leaked sensitive information about witnesses to war crimes defendants.

UNMIK denied the allegations, but its chief officers later admitted that some of the investigations into the roles of high-level perpetrators were stopped for political reasons.

The UNMIK mission came under harsh criticism for years, especially after failing to maintain the peace amid several outbreaks of violent unrest that left many dead. The ICTY finally finished its investigations in Kosovo, but many incidences of war crimes remained unprosecuted.

In 2008, the international community decided to give this troubling task to a new mission, this time run by the EU.

The EU rule-of-law mission in Kosovo, EULEX, had a difficult task – on one hand, it had to gain the trust of the locals, and on the other, it needed to be independent from the powerful elite who had run Kosovo since the war, under the shadow of the alleged crimes that they committed in 1999 and afterwards.

Although many question the achievements of the EU mission, whose mandate expires in 2018, it had a better record when it comes to war crimes prosecutions than its predecessors.

But, its witness protection programme received a blow after one of its key witnesses in the trial against KLA leader Fatmir Limaj died in a park in Germany. An investigation concluded that witness Agim Zogaj killed himself, but the incident didn’t encourage other potential witnesses to testify in EULEX-run proceedings.

Witnesses ostracised by local communities

The most challenging issue for EULEX was to ensure that the witnesses didn’t change their testimonies during the investigation and at the trial.

Charles Hardaway, one of the leading EULEX prosecutors in the case against members of the KLA’s so-called Drenica Group, who were convicted of war crimes last year, told the Balkan Investigative Reporting Network (BIRN) that intimidation remained a serious problem.

“The fundamental challenge in this case dealt with possible witness intimidation and dealing with whom we were dealing with, intimidation is the real issue, not just in this case, but in the other high-profile cases,” Hardaway said.

According to Anka Kurteshi Hajdari, who leads the court monitoring project at the Kosovo-based Humanitarian Law Centre, most witnesses change their testimony during trials, recanting what they said during the investigation phase.

“This is the result of the effects of the community in which they or their families live. Kosovo is a small territory, everyone knows each other and in these conditions it is hard to hide the identity of the witnesses. That means in most of the cases, either people refuse to testify or change their testimonies,” Kurteshi Hajdari said.

According to Kurteshi Hajdari, witnesses are strongly criticised by the communities in which they live, especially if they testify in high-profile trials.

A study published in 2015 by the Pristina-based Centre for Research, Documentation and Publication also showed that the witnesses face the risk of being ostracised by society.

Nora Ahmetaj, a Pristina-based transitional justice expert who reported on human rights abuses during and after the war, agreed that witnesses in Kosovo have so far been “unreliable and often change their testimony”.

“There are two reasons why Kosovars are reluctant to testify against former KLA members: Kosovar Albanians respect, and to a certain extent glorify, former KLA veterans. The high social standing of KLA commanders makes testifying against them an act of ‘treachery’,” Ahmetaj explained.

The other reason is that “the safety of individuals who agree to testify in cases of wrongdoing during the time of armed conflict is shaky, to say the least”, she said.

“Kosovo’s witness protection programme has failed on multiple occasions to provide adequate security and anonymity for witnesses in sensitive cases. Until the security of witnesses can be guaranteed, it is no surprise that Kosovars are hesitant to come forward, particularly in a society as small and close-knit as Kosovo’s,” she added.

New court faces old problems

The new Specialist Chambers is different from previous efforts to bring perpetrators to justice for crimes committed during the conflicts in the former Yugoslavia because it essentially focuses on one side in the war – the KLA.

According to Aidan Hehir, a reader at the University of Westminster and author of the book Kosovo, Intervention and Statebuilding, because the West backed Kosovo’s independence, previous attempts to prosecute war crimes were “hampered by the need to preserve a particular narrative, namely that the ‘bad guys’ were the Serbs alone”.

He adds that to have acknowledged in the aftermath of the NATO bombing that the KLA committed war crimes “would have potentially cast doubt on the legitimacy of NATO’s intervention and the subsequent determination to make Kosovo independent”.

It could also have caused tensions between the ‘internationals’ and former guerrilla officials who became political leaders in post-war Kosovo, like Hashim Thaci, who has held power in various forms since 1999 and is now president.

A 2011 Council of Europe report named Thaci as one of the key people in an alleged criminal network responsible for crimes against Serbs, Roma and Albanians who were marked as collaborators or political opponents of the KLA.

On the basis of the report, the EU set up a task force to investigate and decided in 2014 that there was enough material to have some former KLA officials indicted by the new Specialist Chambers.

Thaci has always strongly denied the claims and he has publicly supported the work of the investigative task force and the establishment of the new court.

But with indictments of former senior KLA figures who could also be high-ranking politicians in Kosovo expected in the coming months, it’s clear that witness protection must remain at the centre of the court’s attention if it is to be successful.

According to BIRN’s sources, several witnesses who are expected to testify have already been moved out of Kosovo to other countries to ensure their security.

Editor’s note: This article is the last of a five-part series Justice Hub series investigating the phenomenon of witness interference in Hague-based international courts, a problem which has plagued the global justice system: