Final version: Master’s Thesis
Fourth Time Lucky?
Confronting Witness Protection Challenges at the Kosovo Specialist
Chambers
23.07.2020
Nini Pieters, 10904956 Supervisor: Dhr. Dr. K. J. Heller
Email and telephone number: ninielsp@hotmail.com, 06 40 83 14 47
University of Amsterdam (UvA)
ABSTRACT
The establishment of the Kosovo Specialist Chambers (KSC) in 2015 constitutes the latest effort by the international community to prosecute high-ranking members of the Kosovo Liberation Army (KLA) for serious crimes allegedly committed in the context of the 1998-1999 Kosovo war. Previous criminal justice mechanisms attempting to prosecute former KLA leaders faced significant challenges, particularly with regards to witness protection. Therefore, the present thesis identifies the factors that contributed to the failure to protect witnesses in such high-profile cases, and examines whether the KSC may be able to overcome these
challenges. This thesis argues that a variety of both internal and external factors contributed to the difficulties in keeping witnesses safe in previous KLA-related cases. It appears that the KSC recognizes and attempts to address these issues, both through an improved legal and organizational framework and by investing in a strong outreach program. However, while it remains unclear whether the KSC may successfully deal with the internal challenges to witness protection, it seems highly unlikely that the new hybrid court can overcome the external influences that caused witness protection to be largely unsuccessful in previous high-profile cases involving the KLA.
TABLE OF CONTENTS
TABLE OF ABBREVIATIONS 5
INTRODUCTION 6
CHAPTER I: THE PROTECTION OF WITNESSES IN CASES AGAINST FORMER
LEADERS OF THE KOSOVO LIBERATION ARMY 8
1. The importance and drawbacks of witness protection 8
1.1 An introduction to witness protection 8
1.1.1 Procedural protection 8
1.1.2 Non-procedural protection 9
1.2 The consequences of the failure to protect witnesses 9 1.3 Witness protection in international crimes cases and at international tribunals 10
1.3.1 International crimes 10
1.3.2 International criminal tribunals 11
1.4 Fair trial rights and the drawbacks of witness protection 12 2. Witness protection in previous cases against the former KLA 13
2.1 Witness protection under UNMIK and EULEX 13
2.1.1 Procedural protection 13
2.1.2 Non-procedural protection 14
2.1.3 Efficacy of witness protection in KLA-related cases 15
2.2 Witness protection at the ICTY 16
2.2.1 Procedural protection 16
2.2.2 Non-procedural protection 17
2.2.3 Efficacy of witness protection in KLA-related cases 18 CHAPTER II: FACTORS CONTRIBUTING TO THE FAILURE TO PROTECT
WITNESSES IN HIGH-PROFILE CASES AGAINST FORMER LEADERS OF THE
KOSOVO LIBERATION ARMY 19
1. Internal factors 20
1.1 Legal factors 20
1.1.1 Rights of the accused 20
1.1.2 Comprehensive legal provisions and application guidelines 21
1.2 Organizational factors 23
1.2.1 Lack of confidentiality and integrity of the system 23
1.2.3 Lack of enforcement powers of international tribunals 25
2. External factors 26
2.1 Post-conflict environment 26
2.1.1 Fragile security situation and rule of law 26
2.1.2 Political influence of the alleged perpetrators 27 2.1.3 War rhetoric and societal position of alleged perpetrators 28
2.2. Sociocultural and international context 29
2.2.1 Close-knit society and small geographical size 29
2.2.2 International cooperation and agreements 30
3. Overcoming the internal and external challenges to witness protection in KLA-related
cases 30
CHAPTER III: THE PROSPECTS OF THE KOSOVO SPECIALIST CHAMBERS TO OVERCOME THE WITNESS PROTECTION CHALLENGES IN HIGH-PROFILE CASES
AGAINST FORMER LEADERS OF THE KOSOVO LIBERATION ARMY 31
1. Witness protection measures at the KSC 31
1.1 Procedural protection 31
1.2 Non-procedural protection 33
2. Internal challenges to witness protection 33
2.1 Legal factors 33
2.1.1 Rights of the accused 33
2.1.2 Comprehensive legal provisions and application guidelines 35
2.2 Organizational factors 36
2.2.1 Confidentiality and integrity of the system 36
2.2.2 Funding, resources, and training 37
2.2.3 Enforcement powers 37
2.3 The KSC’s prospects of overcoming the internal challenges to witness protection 38
3. External challenges to witness protection 38
3.1 Post-conflict environment 39
3.1.1 Fragile security situation and rule of law 39
3.1.2 Political influence of the KLA 39
3.1.3 War rhetoric and societal position of the KLA 40
3.2 Sociocultural and international context 42
3.2.1 Close-knit society and small geographical size 42
3.3 The KSC’s prospects of overcoming the external challenges to witness protection 43
CONCLUSION 44
TABLE OF AUTHORITIES 45
Table of Cases 45
International cases 45
Table of Legislation and Other Tables 45
International legislation 45 Domestic legislation 46 Other tables 46 BIBLIOGRAPHY 47 Books 47 Book chapters 47 Journal articles 47 Official publications 50 Internet sources 53
TABLE OF ABBREVIATIONS
CCK Criminal Code of Kosovo
CoE Council of Europe
CPCK Criminal Procedure Code of Kosovo IFM Institution of Forensic Medicine (Kosovo) ECHR European Convention on Human Rights ECtHR European Court of Human Rights
EULEX European Union Rule of Law Mission in Kosovo ICCPR International Covenant on Civil and Political Rights ICTs International Criminal Tribunals
ICTY International Criminal Tribunal for the Former Yugoslavia ICTY-RPE Rules of Procedure and Evidence of the ICTY
KFOR Kosovo Force (NATO)
KLA Kosovo Liberation Army
KP Kosovo Police
KSC Kosovo Specialist Chambers
KSC-RPE Rules of Procedure and Evidence of the KSC
OSCE Organization for Security and Cooperation in Europe PACE Parliamentary Assembly of the Council of Europe PCPCK Provisional Criminal Procedure Code of Kosovo
PU Protection Unit of the Victims and Witnesses Section (ICTY) SPO Kosovo Specialist Prosecutor’s Office
UN United Nations
UNMIK United Nations Interim Administration Mission in Kosovo UNODC United Nations Office on Drugs and Crime
VWS Victims and Witnesses Section (ICTY)
WPD Witness Protection Directorate (Kosovo Police) WPSO Witness Protection and Support Office (KSC)
WPU Witness Protection Unit (UNMIK)
INTRODUCTION
In 2011, Swiss senator Dick Marty issued a report on behalf of the Parliamentary Assembly of the Council of Europe (PACE) named ‘Inhuman treatment of people and illicit trafficking in human organs in Kosovo’ (Marty Report).1 The report contained allegations of war crimes
and enforced disappearances targeting ethnic minorities and Kosovar Albanians, allegedly committed by members of the Kosovo Liberation Army (KLA) during and after the Kosovo war in 1998-1999.2 After a lengthy investigation and an exchange of letters between the High Representative of the European Union for Foreign Affairs and Security Policy and the
President of Kosovo, in 2015 the Kosovar Parliament adopted the Law on the Kosovo
Specialist Chambers and Specialist Prosecutor’s Office (KSC or Court).3 As such, the KSC is
embedded in the domestic legal system of Kosovo, but it is relocated to the Hague and staffed with international judges only.4
The main justification for the creation of the KSC is the continued impunity of former KLA leaders, which undermines reconciliation efforts in the region.5 Previous attempts to prosecute these high-profile cases by the United Nations Interim Administration for Kosovo (UNMIK), the European Union Rule of Law Mission for Kosovo (EULEX), as well as the International Criminal Tribunal for the former Yugoslavia (ICTY) faced significant challenges, notably with regard to the protection of witnesses.6 Virtually all KLA-related cases thus far have been plagued by widespread witness intimidation, threats, attacks, and even killings.7 Nevertheless, in the spirit of “fourth time lucky”, representatives of the KSC repeatedly emphasized that they were confident the Court could adequately protect witnesses.8 However, considering the
1 Parliamentary Assembly of the Council of Europe: Committee on Legal Affairs and Human Rights, ‘Inhuman treatment of people and illicit trafficking in human organs in Kosovo’ Doc. 12462 (PACE 2011)
<http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=12608&lang=en> accessed 17 June 2020 (Marty Report).
2 Ibid.
3 Law No. 05/L-053 on the Kosovo Specialist Chambers and Specialist Prosecutor’s Office (3 August 2015) (Law on the KSC).
4 ‘Background’ (Kosovo Specialist Chambers & Specialist Prosecutor's Office, 2020) <https://www.scp-ks.org/en/background> accessed 20 June 2020.
5 Mathias Holvoet, 'The Continuing Relevance of the Hybrid or Internationalized Justice Model: The Example of the Kosovo Specialist Chambers' (2016) 28 Criminal Law Forum.
6 Marty Report (n1) 15; Matthew Cross, 'Strategising International Prosecutions: How Might the Work of the Kosovo Specialist Prosecutor’s Office Come to Be Judged?' (2020) 20 International Criminal Law Review 70-71.
7 Ibid.
8 Referring to the three previous attempts by the international community to fight the impunity of the former KLA, namely hybrid courts under UNMIK and EULEX, and the ICTY; see Marija Ristic, 'New Kosovo Court Confronts Witness Protection Fears – Justice Hub' (Justice Hub, 2016) <https://justicehub.org/article/new-kosovo-court-confronts-witness-protection-fears/> accessed 2 March 2020; Nini Pieters, Written Communication
experience of previous criminal justice mechanisms attempting to prosecute these sensitive cases, the question arises how the KSC aims to be more successful in keeping witnesses safe. In light of the above, this thesis aims to identify the factors that contributed to the failure to protect witnesses in previous high-profile cases involving the KLA, and to examine whether it is possible for the KSC to overcome those challenges. In order to ensure an integrated
analysis, this thesis will make use of a wide variety of primary and secondary sources, including: the applicable laws and procedural rules at criminal justice mechanisms for
Kosovo; academic and empirical research; monitoring and NGO reports on UNMIK, EULEX, and the ICTY (from 2003-2017); best practices manuals regarding witness protection (e.g. by the United Nations Office on Drugs and Crime (UNODC));9 the insightful memoirs of the former Chief Prosecutor at the ICTY Carla Del Ponte;10and an interview with a UNMIK staff
member involved in witness protection.11
The first chapter of this thesis provides a theoretical background on witness protection, and discusses the protection measures employed at previous criminal justice mechanisms for Kosovo. Consequently, the second chapter identifies the factors that caused witness protection to be largely unsuccessful in earlier high-profile cases involving the KLA. In doing so, this thesis argues that these issues stem not only from the legal and organizational framework regulating witness protection (i.e. internal factors), but also from sociopolitical and other external influences (i.e. external factors). Finally, the third chapter analyzes how the KSC addresses these internal and external challenges to witness protection, and whether it is at all possible for the Court to overcome them.
with KSC Outreach Office, 'Personal Communication with Staff Members of the Kosovo Specialist Chambers Outreach Section' (2020) (Personal Communication KSC); Ruth Green, 'International Justice: Kosovo Specialist Chambers on Cusp of Indicting War Criminals' (IBANET, 2019)
<https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=588337F8-1BE6-4988-B49C-3143EC2D5DB3> accessed 21 July 2020.
9 Even though the manual was developed in 2008, it is still often cited and referred to in other research: United Nations Office on Drugs and Crime (UNODC), 'Good Practices for the Protection of Witnesses in Criminal Proceedings Involving Organized Crime' (United Nations 2008) <https://www.unodc.org/documents/organized-crime/Witness-protection-manual-Feb08.pdf> accessed 18 June 2020.
10 Carla Del Ponte, Madame Prosecutor (Other Press 2009, KOBO edition).
11 Nini Pieters, Interview with D F, 'Interview with UNMIK Staff Member Involved in Witness Protection and the Kosovo Special Prosecutor's Office' (2020) (Personal Communication D.F).
CHAPTER I: THE PROTECTION OF WITNESSES IN CASES AGAINST
FORMER LEADERS OF THE KOSOVO LIBERATION ARMY
To thoroughly understand the witness protection challenges in cases against former KLA leaders, it is important to address the theoretical background and prevalence of the problem. Therefore, this chapter will first address the concept and importance of witness protection in serious crimes cases, as well as the concerns such measures may raise from the perspective of defense rights. Thereafter, it will discuss the witness protection measures employed at
previous criminal justice mechanisms for Kosovo and their (in)efficacy.
1. The importance and drawbacks of witness protection
1.1 An introduction to witness protection
Witness protection may be defined as the “range of methods and measures that can be applied at all stages of the criminal proceedings to ensure the safety and security of witnesses in order to ensure their cooperation and testimony.”12 It is important to distinguish witness protection from witness support, whereby the latter is not aimed at protecting the security of witnesses but rather at ensuring their psychological and general well-being.13 Even though witness protection mechanisms may differ across legal systems, relevant measures can usually be divided into procedural and non-procedural protection measures.14
1.1.1 Procedural protection
Procedural protection measures may be ordered by a judge to protect the identity and privacy of the witness from the public or, in exceptional circumstances, from the defense.15 Such in-court measures include: the use of pseudonyms, shields, disguises or voice disturbances during testimony; testifying via audio-visual communication channels; the removal of the
12 Karin Kramer, ‘Witness protection as a key tool in addressing serious and organized crime’ (Visiting expert UNODC, Paper presented at the Fourth Regional Seminar on Good Governance for Southeast Asia Countries held by the United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI) 2010) <https://www.unafei.or.jp/publications/pdf/GG4/Fourth_GGSeminar_P3-19.pdf> accessed 21 July 2020 5.
13 Kramer (n12) 4.
14 See, e.g. Kramer (n12) 5-6; for differences across mechanisms see Piotr Bakowski, 'Witness Protection Programmes EU Experiences in the International Context' (Library of the European Parliament 2013)
<https://www.europarl.europa.eu/thinktank/en/document.html?reference=LDM_BRI(2013)130408> accessed 18 June 2020; Felföldi Enikö, 'The Rising Importance of the Protection of Witnesses in the European Union' (2006) 77 Revue Internationale de Droit Penal.
public or the defendant from the courtroom; the admission of written statements; or, in extreme circumstances, a fully anonymous testimony.16 In addition, most jurisdictions allow for the prosecution of witness tampering and the disclosure of protected information as a procedural offence (i.e. offences against the administration of justice).17
1.1.2 Non-procedural protection
Non-procedural witness protection measures may range from providing security advice to witnesses, to offering physical protection such as bodyguards, surveillance, or temporary relocation.18 In extreme cases, the permanent relocation of the witness and his or her family, including the change of identity, may be required.19 Because of the complexity, high costs, and heavy personal impact of such operations, permanent relocation is considered a measure of last resort.20 Nevertheless, relocation operations are often necessary when dealing with powerful individuals or criminal groups, as well as in post-conflict environments and geographically small countries that make it difficult to protect witnesses locally.21
1.2 The consequences of the failure to protect witnesses
The failure to effectively protect witnesses can have severe consequences for witnesses and their families. These include stigmatization, economic and social deprivation, the offering of bribes, and most notably intimidation, threats, or attacks.22 Besides compromising the human security of witnesses and their relatives, inadequate witness protection is also detrimental to the integrity of the judicial process.23 For obvious reasons, a witness who is dead or has disappeared can no longer testify. However, unprotected witnesses may also be intimidated into changing their story or withdrawing their testimony.24 In complex and high-profile cases,
16 See e.g. Kramer (n12) 6-8; United Nations Office of the High Commission for Human Rights (OHCHR), ‘Manual on Human Rights Monitoring, Chapter 14: Protection of Victims, Witnesses and Other Cooperating Persons’ (United Nations 2011) <https://www.ohchr.org/Documents/Publications/Chapter14-56pp.pdf> accessed 18 July 47.
17 Goran Sluiter, ‘The ICTY and Offences Against the Administration of Justice’ (2004) 2(2) Journal of International Criminal Justice 631.
18 Kramer (n12) 6; OHCHR (n16) 47ff.
19 See, e.g. Kramer (n12) 9; Bakowski (n14) 2; UNODC (n9) 4. 20 Kramer (n12) 16-18; Bakowski (n14) 2; OHCHR (n16) 51. 21 Kramer (n12) 11-12; Bakowski (n14) 4.
22 Anne-Marie De Brouwer, 'The Problem of Witness Interference Before International Criminal Tribunals' (2015) 15 International Criminal Law Review 709-710; James Meernik and Kimi Lynn King, The Witness
Experience: Testimony at the ICTY and Its Impact (Cambridge University Press 2017, KOBO edition) Ch4.
23 De Brouwer (n22) 714; Meernik & King (n22) ch4 50; Kadri Arifi, 'Witness Protection in Kosovo: Progress and Challenges' (2015) 1(3) European Journal of Interdisciplinary Studies.
24 De Brouwer (n22) 711; there are however also other reasons why witnesses may change their testimony, such as language or cultural barriers (see Gabriele Chlevickaite and Barbora Hola, 'Empirical Study of Insider Witnesses’ Assessments at the International Criminal Court' (2016) 16 International Criminal Law Review;
such as those involving the KLA, this frequently means that convictions are simply
unobtainable.25 Furthermore, the perception that witnesses cannot be kept safe may also deter potential or future witnesses from testifying. Consequently, without witness evidence these cases can no longer be instigated.26 Indeed, numerous academics and organizations have described this deterrent effect resulting in the continued impunity of high-ranking members of the former KLA.27
1.3 Witness protection in international crimes cases and at international tribunals
The above section demonstrates that effective witness protection is of great importance in any criminal justice system dealing with serious crimes.28 However, as will be explained below, this is particularly crucial in the prosecution of international crimes, and even more so at International Criminal Tribunals (ICTs).
1.3.1 International crimes
In complex cases dealing with international crimes, witness testimony may at times be the only available type of evidence.29 This is exemplified by the conflict in the former
Yugoslavia, where documentation and other evidence of war crimes was scarce or
unobtainable.30 In Kosovo, the malfunctioning of relevant authorities, such as the Institution of Forensic Medicine (IFM), additionally complicated the obtaining of forensic evidence
Robert Cryer, 'Witness Evidence Before International Criminal Tribunals' (2003) 3 The Law & Practice of International Courts and Tribunals).
25 Marty Report (n1) 15.
26 Amnesty International, 'Kosovo: Time for EULEX To Prioritize War Crimes' (Amnesty International Ltd 2012) <https://www.amnesty.org/download/Documents/24000/eur700042012en.pdf> accessed 18 July 2020 4; De Brouwer (n22) 7-13; Huma Haider and Timothy Welch, ‘The Protection of Witnesses in Bosnian War Crimes Trials: A Fair Balance Between the Interest of the Victims and the Right of the Accused?’ (2008) 20 The Denning Law Journal 84.
27 Marty Report (n1) 10-11; Parliamentary Assembly of the Council of Europe (PACE): Committee on Legal Affairs and Human Rights, 'The Protection of Witnesses as a Cornerstone for Justice and Reconciliation in the Balkans' Doc. 11522 (PACE 2010)
<http://assembly.coe.int/CommitteeDocs/2010/20100622_ProtectionWitnesses_E.pdf> accessed 5 March 2020 26; Gregory L Naarden and Jeffrey B Locke, 'Peacekeeping and Prosecutorial Policy: Lessons from Kosovo' (2004) 98 The American Journal of International Law 741; Organization for Security and Co-operation in Europe Mission in Kosovo: Department of Human Rights and Rule of Law, Legal System Monitoring Section, 'The Protection Of Witnesses In The Criminal Justice System; The Administration Of Justice In Minor Offences; Courts Juveniles In Criminal Proceedings' (OSCE 2006) <https://www.osce.org/kosovo/23307?download=true> accessed 18 February 2020 (OSCE CJS Review) 8,14; De Brouwer (n22) 713-714.
28 See e.g. Bakowski (n14) 1; Kramer (n12) 9; Enikö (n14) 313ff. 29 De Brouwer (n22) 713.
30 This is because less documentary evidence exists of the crimes committed during the Yugoslav wars, but also because governments are often unwilling to cooperate with regards to evidence; see: Mark B Harmon & Fergal Gaynor, ‘Prosecuting Massive Crimes with Primitive Tools: Three Difficulties Encountered by Prosecutors in International Proceedings’ (2004) 2(2) Journal of International Criminal Justice 405-407.
concerning KLA-related crimes.31 Moreover, the only means to link high-ranking defendants, such as KLA commanders, to international crimes committed on the ground is often through the testimony of so-called insider witnesses.32
Besides the increased value of witness testimony in these cases, persons accused of international crimes have a greater incentive to threaten witnesses due to the severity of prospective punishments.33 Adding to the complexity is the fact that international crimes are often committed by former state officials who may still enjoy considerable influence in the locus delicti.34 All of these factors contribute to the strong demand for a robust system of witness protection in cases dealing with international crimes.
1.3.2 International criminal tribunals
The need for witness protection is even more emphasized in the context of ICTs.35 This is not only due to the complexity of the crimes adjudicated, but also because of the lack of
enforcement powers and the complementary nature of ICTs.36 In the absence of an
international police force, these mostly relocated tribunals have to rely on local authorities to hand over evidence, cooperate with investigators, and carry out court orders.37 However, the
authorities concerned may often be unable or unwilling to effectively support tribunals — also known as the complementarity paradox — which means that ICTs are even more dependent on the voluntary cooperation of witnesses.38
31 Amnesty international (n26) 27; Eric Witte and Clair Duffy, Options for Justice: A Handbook for Designing
Accountability Mechanisms for Grave Crimes (Open Society Foundations
2018)<https://www.justiceinitiative.org/uploads/89c53e2e-1454-45ef-b4dc-3ed668cdc188/options-for-justice-20180918.pdf> accessed 22 July 2020 555.
32 Kramer (n12) 9; Carla Del Ponte, 'Investigation and Prosecution of Large-Scale Crimes at the International Level: The Experience of the ICTY' (2006) 4 Journal of International Criminal Justice 544; Mathias Holvoet, 'Introducing the Special Issue ‘Critical Perspectives on the Law and Politics of the Kosovo Specialist Chambers and the Specialist Prosecutor’s Office’' (2020) 20 International Criminal Law Review 15.
33 Meernik & Kim (n22) ch4 14.
34 De Brouwer (n22) 720, Harmon & Gaynor (n30) 5; Robert Cryer, 'Witness Tampering and International Criminal Tribunals' (2014) 27(1) Leiden Journal of International Law 199-201.
35 Sangkul Kim, 'The Witness Protection Mechanism of Delayed Disclosure at The Ad Hoc International Criminal Tribunals' (2016) 9(1) Journal of East Asia and International Law 60.
36 De Brouwer (n22) 717; See also Del Ponte (n32) 539, 546. 37 Harmon & Gaynor (n30).
1.4 Fair trial rights and the drawbacks of witness protection
Notwithstanding the importance of witness protection, it is important to address the concerns that such protective measures raise from the perspective of the defendant’s rights. 39
International human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR) or the European Convention on Human Rights (ECHR) grant minimum fair trial rights to any accused person, including the right to a public trial and to examine witnesses against oneself.40 Scholars have pointed out that the overly broad use of protection measures therefore violates the defendant’s right to a fair and public trial, which in turn jeopardizes the legitimacy and integrity of proceedings.41
Firstly, public access to and scrutiny of judicial proceedings is important to ensure the fair course of justice.42 Although the right to a public trial can be limited under certain
circumstances,43 former ICTY judge Patricia Wald argued that “at a certain point, a trial in
which witness identities are freely withheld from the public is no longer a public trial.”44 In
addition, measures that conceal witnesses’ identities from the defense directly conflict with the right of the accused to confront and cross-examine witnesses.45 Because the accused cannot assess and dispute the testimony of anonymous witnesses, critics consider fully anonymous testimonies a violation of fair trial rights.46 However, it is worth mentioning that according to the jurisprudence of the European Court of Human Rights (ECtHR), anonymous testimony is permissible as long as the witness can be cross-examined and the verdict is not
39 Daniela Kravetz, ‘The Protection of Victims in War Crimes Trials’ in Torsten Bonacker and Christoph Safferling (eds), Victims of International Crimes: An Interdisciplinary Discourse (T. M. C. Asser Press 2013); UNODC (n9) 40.
40 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 14; Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) Art 6.
41 Haider & Welch (n26) 84-86, Kravetz (n39) 158; Andrew Trotter, ‘Witness Intimidation in International Trials: Balancing the Need for Protection Against the Rights of the Accused’ (2013) 44(3) George Washington International Law Review 521.
42 Kravetz (n39).
43 See ICCPR Art 14; ECHR Art 6.
44 Patricia M Wald, 'Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal' (2002) 5 Yale Human Rights & Development LJ 239.
45 John Ciorciari and Anne Heindel, ‘Victim Testimony in International and Hybrid Criminal Courts: Narrative Opportunities, Challenges, and Fair Trial Demands’ (2016) 56(2) Virginia Journal of International Law 26. 46 Haider & Welch (n26) 63.
decisively based on that testimony.47 This qualification is relevant because, as will be addressed later on, the KSC is obliged to adjudicate in accordance with the ECHR.48 Finally, a distinct but similar issue concerns the pre-trial detention of the accused for the purpose of protecting witnesses. This is because as Trotter points out, pre-trial detention “incurs a degree of prejudice to the accused,” which may raise issues regarding the right to liberty and to be presumed innocent until proven guilty.49
2. Witness protection in previous cases against the former KLA
The foregoing sections have illustrated the importance of a robust witness protection system that simultaneously respects the defendant’s right to a fair trial. In the following, this thesis will address the available protection measures at the hybrid courts under UNMIK and EULEX and at the ICTY, as well as their (in)efficacy in high-profile cases involving the former KLA.
2.1 Witness protection under UNMIK and EULEX
2.1.1 Procedural protection
Procedural witness protection measures in post-conflict Kosovo were first introduced by UNMIK Regulation 2001/20 On the protection of injured parties and witnesses in criminal proceedings.50 These provisions were later embedded in the (Provisional) Criminal Procedure Code of Kosovo (CPCK), which continued to apply when EULEX took over from UNMIK in 2008.51 Under the CPCK, any of the parties involved could request protective measures by means of a written petition.52 Because of their impact on the defendant’s rights, the judge could only order such measures as strictly necessary to protect the witness and his or her family.53 Protection measures in the CPCK include the omission of identifying information from court records, removing the defendant from the courtroom, ordering closed court
47 For an elaborate discussion see Haider & Welch (n26) 69-83.
48 Law on KSC Art 3; the importance of jurisprudence of the ECtHR and other international courts is affirmed under KSC interpretation R4. See: Alexander Heinze, 'The Kosovo Specialist Chambers’ Rules of Procedure and Evidence' (2017) 15(5) Journal of International Criminal Justice 1008.
49 Trotter (n41).
50 UNMIK Reg No. 2001/20 ‘On the Protection of Injured Parties and Witnesses in Criminal Proceedings’ (20 September 2001); since UNMIK at the time had jurisdiction over the territory of Kosovo, it was also the legislator, see Witte & Duffy (n31) 534.
51 Provisional Criminal Procedure Code of Kosovo, UNMIK/REG/2003/26 (6 July 2006); Criminal Procedure Code of the Republic of Kosovo, Law No. 04/L-123, Official Gazette of the Republic of Kosovo No 37 (28 December 2012) (CPCK).
52 CPCK Art 221(1). 53 CPCK Art 221 (4.2).
sessions, using pseudonyms or voice/image altering devices, obtaining testimony through audio-visual recordings,54 and the prohibition of questions that would reveal the identity of the witness.55 Under exceptional circumstances, witnesses could remain fully anonymous even to the opposing party.56 While controversial, as mentioned earlier, this is consistent with ECtHR jurisprudence.57 Furthermore, judges could issue pre-trial detention or restraining orders, where there was a risk that the defendant would influence witnesses.58 Finally, witness interference and intimidation was — and still is — a prosecutable offence under the Criminal Code of Kosovo (CCK).59
2.1.2 Non-procedural protection
Both UNMIK and EULEX managed a specialized international unit to protect witnesses in cases concerning the most serious crimes.60 A Witness Protection Unit (WPU) was first established by UNMIK in 2003 to offer physical protection and the possibility of relocation for vulnerable witnesses.61 In 2008, the EULEX Witness Security Unit (WSU) took over from
the WPU. Although EULEX has not revealed details pertaining to the functioning of its witness protection program, the mission’s leadership repeatedly asserted its efficacy and success.62
It should be noted that in 2011, the Kosovar Parliament passed a comprehensive law on witness protection, which established a local Witness Protection Directorate (WPD) as the primary responsible for non-procedural witness protection in Kosovo.63 However, EULEX still runs a residual witness protection program as one of its limited executive functions.64
54 Ibid.
55 CPCK Art 226.
56 CPCK Art 223, Art 224. 57 PACE (n27) 2.
58 See CPCK Art. 187 1.2.2, Art 183.
59 Provisional Criminal Code of Kosovo, UNMIK/REG/2003/25 (6 July 2003); the Criminal Code of the Republic of Kosovo, Law No. 06/L-074, Official Gazette of the Republic of Kosovo No 2 (14 January 2019) even included intimidation (Art 395), retaliation (Art. 396), violating secrecy of proceedings (Art 400), and contempt of court (Art 401).
60 PACE (n27) 25.
61 OSCE CJS Review (n27) 10; Organization for Security and Cooperation in Europe Mission in Kosovo, 'Witness Security and Protection in Kosovo: Assessment and Recommendations' (OSCE 2007)
<https://www.osce.org/files/f/documents/d/7/28552.pdf> accessed 14 July 2020 (OSCE Witness Security Assessment).
62 EULEX Kosovo, 'Open Letter Regarding the Death of Agim Zogaj' (EULEX Kosovo, 2011)
<https://www.eulex-kosovo.eu/images/news/2011/november/open-letter.pdf> accessed 17 July 2020; PACE (n27) 25.
63 Law No. 04/L-015 on Witness Protection (1 September 2011).
64 Council Decision (CFSP) 2018/856 of 8 June 2018 amending Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo (EULEX KOSOVO) (2018) OJ L 146/5.
2.1.3 Efficacy of witness protection in KLA-related cases
Despite the available protection measures, high-profile cases at the UNMIK and EULEX hybrid courts were continuously hampered by widespread witness intimidation and
retaliation.65 Since the early years of UNMIK’s mandate, various explosions and shootings targeted witnesses in cases involving the KLA.66 As former ICTY Chief Prosecutor Carla Del Ponte noted in her memoirs, these shocking incidents left most potential witnesses too
terrified to testify at such war crimes trials.67 EULEX, which took over UNMIK’s functions in 2008, has also been widely criticized for the alleged failure to protect witnesses in
high-profile cases.68 The distrust in the EULEX protection system climaxed in 2011, when a protected key witness in the local trial against former KLA leader Fatmir Limaj was found dead.69 Perhaps unsurprisingly, the mixed panel of local and international judges acquitted Limaj in 2012 and again in 2017.70 The prosecutors in the case attributed his acquittal,
together with that of nine other former KLA members, to widespread interference with witnesses.71 Moreover, the PACE noted that other high-profile cases could simply not be
instigated because the protection unit was unable to protect witnesses.72
65 Marty Report (n1) 15; See also: OSCE CJS Review (n27) 14; Naarden & Locke (n27) 741. 66 Del Ponte (n10) ch11 paras 44-47.
67 Ibid.
68 See e.g. Witte & Duffy (n31) 557; PACE (n27); Oya Dursun-Özkanca, 'The European Union Rule of Law Mission in Kosovo: An Analysis from the Local Perspective' (2017) 17 Ethnopolitics 71 82-83; Chris Van Der Borgh, Puck Le Roy, and Floor Zweerink, 'EU Peacebuilding Capabilities in Kosovo After 2008: An Analysis of EULEX And The EU-Facilitated Belgrade-Pristina Dialogue' (Whole of Society Conflict Prevention and Peacebuilding (WOSCAP), Centre for Conflict Studies, Utrecht University 2016)
<https://www.ris.uu.nl/ws/files/27368554/KosovoReport_Woscap_2016.pdf> accessed 24 January 2020 (WOSCAP Report) 25.
69 Zegaj committed suicide while enrolled in the EULEX WPP, however his death reflected badly on the EULEX witness protection system; see e.g. Witte & Duffy (n31) 557; Matthew Brunwasser, 'Death of War Crimes Witness Casts Cloud on Kosovo' (New York Times, 2011)
<https://www.nytimes.com/2011/10/07/world/europe/death-of-war-crimes-witness-casts-cloud-on-kosovo.html> accessed 2 March 2020.
70 Witte & Duffy (n31) 561; see also Arben Kirezi, 'Kosovo’s Top Court Acquits Limaj of War Crimes' (Balkan
Insight, 2017)
<https://balkaninsight.com/2017/05/25/kosovo-acquits-former-kla-commander-after-marathonic-trial-05-25-2017-1/> accessed 14 July 2020. 71 Witte & Duffy (n31) 561.
72 PACE (n27) 26; in recent years, EULEX has made some progress in the prosecution of former KLA members (Marty Report (n1) 4). However, even in the 2015 ‘Drenica I’ trial which led to eleven convictions in first instance, witness safety remained a major challenge (see Maria Ristic, 'The Troubled Trial of Kosovo’s ‘Drenica Group’' (Balkan Insight, 2015) <https://balkaninsight.com/2015/05/27/kosovo-awaits-kla-guerilla-verdict/> accessed 17 June 2020).
2.2 Witness protection at the ICTY
Article 22 of the Statute of the ICTY enshrines the importance of witness protection.73 According to the ICTY Rules of Procedure and Evidence (ICTY-RPE or ICTY Rules), a Victims and Witnesses Section (VWS) within the Tribunal’s Registry was responsible for the protection and support of witnesses.74
2.2.1 Procedural protection
Pursuant to Rule 75 of the ICTY-RPE and subject to the rights of the accused, judges could order procedural protection measures upon their own motion, as well as upon request of one of the parties or the VWS.75 Possible protection measures included the use of a pseudonym, image or voice distorting technology, close-circuit television during trial, removing
identifying information from the public record, calling closed court sessions, and the prohibition of intimidating questions.76
Furthermore, Rule 69 allowed for the temporary non-disclosure of witness identity (delayed or ‘rolling’ disclosure), 77 and the Tribunal kept a log of persons possessing sensitive witness
information.78 In addition, from 2009 onwards it was possible to submit written statements in lieu of live testimony where there was proof of “improper interference” with a witness.79 However, this rule
has never been applied by the ICTY.80
Approximately one fourth of all witnesses at the ICTY have been granted some kind of protective measure (see figure on the left).81 In the first of the
two KLA-related cases at the ICTY,
73 ‘Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991’ (adopted 25 May 1993, entered into force 14 January 1994, as amended) UN Doc. S/RES/827 (ICTY Statute) Art 22. 74 Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia, IT/32/Rev.50 (8 July 2015) (ICTY-RPE) R34.
75 ICTY-RPE R75(A). 76 ICTY-RPE R75.
77 ICTY-RPE R69 (A); in its jurisprudence, the ICTY has allowed for the disclosure of witness identities on a rolling basis (so-called rolling disclosure), see Kim (n35).
78 De Brouwer (n22) 707-708. 79 ICTY-RPE R92 quinquies.
80 Status 2015, see: De Brouwer (n22) 707-708.
81 'Witness Statistics International Criminal Tribunal for the Former Yugoslavia' (ICTY, 2015) <https://www.icty.org/en/about/registry/witnesses/statistics> accessed 18 June 2020.
The Prosecutor v Fatmir Limaj, Haradin Bala and Isak Musliu in 2005, retrial in 2007 (Limaj et al.),82 a significant number of witnesses required protection measures.83 In the second case involving KLA leaders, The Prosecutor v Ramush Haradinaj, Idriz Balaj, Lahi Brahimaj in 2008, retrial in 2010 and 2012 (Haradinaj et al.),84 one third of the witnesses were granted protective measures.85 It bears noting that the Tribunal granted full anonymity to witnesses only once in the 1994 Tadic case.86 Partly based on Tadic, the ICTY in its jurisprudence developed certain criteria for the application of protective measures.87 These include the length of the trial, the risk of interference, and the existence of an objective and specific threat to the witness.88 Nevertheless, given the complexity of cases and the tension with the
defendant’s rights, judges evaluated the use of protective measures on a case-by-case basis.89
Finally, similar to cases under UNMIK and EULEX, the judges at the ICTY could order pre-trial detention of the defendant90 and prosecute the disclosure of protected information and the
intimidation of witnesses as contempt of court.91 From among 25 contempt cases at the ICTY,
one was related to Limaj et al.,92 and three were related to Haradinaj et al.93
2.2.2 Non-procedural protection
Within the VWS, a special Protection Unit (PU) was responsible for the non-procedural protection of witnesses.94 However, since the ICTY had no police force, the Tribunal was mostly reliant on local authorities to ensure the security of witnesses before and after
82 The Prosecutor v Fatmir Limaj, Haradin Bala, Isak Musliu IT-03-66-T (Limaj et al.). 83 Del Ponte (n10) ch11 para 55.
84 The Prosecutor v Ramush Haradinaj, Idriz Balaj, Lahi Brahimaj IT-04-84-A (Haradinaj et al.). 85 'Case Information Sheet: IT-04-84 And IT-04-84 Bis Haradinaj et al.' (ICTY, 2012)
<https://www.icty.org/x/cases/haradinaj/cis/en/cis_haradinaj_al_en.pdf> accessed 16 July 2020.
86 See Haider & Welch (n26) 61-63: The reason for allowing full anonymity in this specific case was, according to the Court, because of the ongoing conflict and the fact that no witness protection program was in place at the ICTY at the time.
87 Kravetz (n39) 151.
88 Subjective fear and general “dangerous conditions” for witnesses usually did not suffice (ibid). 89 e.g. Kravetz (n39) 158.
90 ICTY-RPE R40bis(B)(iii), see Cryer (n34) 197. 91 ICTY-RPE R7.
92 On witness interference: ICTY, Prosecutor v Beqa Beqaj, IT-03-66-R77.
93 On witness interference: ICTY, Prosecutor v Astrit Haraqija and Bajrush Morina, IT-04-84-R77.4; on refusal to answer a question: ICTY, Prosecutor v Shefqet Kabashi, IT-04-84-R77.1; on undue disclosure of witness identity: ICTY, Prosecutor v Baton Haxhiu, IT-04-84-R77.5.
94 Kimi Lynn King et al., 'Echoes Of Testimonies: A Pilot Study Into The Long-Term Impact Of Bearing Witness Before The ICTY' (Joint publication of the University of North Texas (UNT) and the Victims and Witnesses Section (VWS) at the International Criminal Tribunal for the former Yugoslavia (ICTY) 2016) <https://www.icty.org/en/about/registry/witnesses/echoes-of-testimonies--a-unique-research-project> accessed 18 June 2020 14, 65.
proceedings.95 An exception to this was the relocation of witnesses and their families, which therefore constituted “a strong foundation for the Protection Unit’s capacity to protect the most vulnerable.”96 By 2009, the ICTY had concluded relocation agreements with thirteen states and was in negotiations with seven other states.97 Given the complexity and high costs of relocation operations, this measure has only been employed with extreme rarity at the ICTY.98
2.2.3 Efficacy of witness protection in KLA-related cases
Despite the available protection measures, witness security was also a major issue in KLA-related trials at the ICTY.99 According to Del Ponte, the investigations into former KLA leaders were extremely frustrating, and witnesses were reluctant to come forward.100 Both cases related to the KLA, Limaj et al. and Haradinaj et al., were accompanied by widespread witness intimidation, bullying, attacks, bribes, and local police searching the property of witnesses.101 As a result, many witnesses — if they had not already ‘disappeared’— changed
their stories or refused to testify altogether.102 In both cases, the judges acknowledged the
“unprecedented atmosphere of widespread and serious witness intimidation.”103 At least partly
due to these issues, only one former KLA member, Haradin Bala, was ultimately convicted at the ICTY.104
95 Ibid 14; Before the trial, the VWS cooperated with local police (Meernik & King (n22) ch4 19), and after testimony protection had to be referred to local authorities altogether, see: 'Witnesses - FAQs' (ICTY, 2020) <https://www.icty.org/en/about/registry/witnesses/faq#2> accessed 15 July 2020.
96 King et al. (n94) 14. 97 PACE (n27) 4. 98 n81.
99 Del Ponte (n10) ch11. 100 Ibid.
101 Del Ponte (n10) ch11; see also: Cryer (n34) 193-194; De Brouwer (n22) 709-711, Mirko Klarin, ‘The Impact of the ICTY Trials on Public Opinion in the Former Yugoslavia’ (2009) 7(1) Journal of International Criminal Justice.
102 Ibid; Haradinaj et al. (Prosecution Appeal Brief, 17 July 2008) 533-535.
103 Haradinaj et al. (Appeals Judgement, 19 July 2010); Kravetz (n39) 160 regarding Limaj et al. 104 See e.g. Cryer (n34) 194; De Brouwer (n22) 708-711.
CHAPTER II: FACTORS CONTRIBUTING TO THE FAILURE TO
PROTECT WITNESSES IN HIGH-PROFILE CASES AGAINST FORMER
LEADERS OF THE KOSOVO LIBERATION ARMY
The previous chapter has shown that despite a variety of available protection measures,
virtually all cases involving high-ranking members of the KLA were hampered by widespread witness interference and intimidation. In the following, this thesis will address the multiplicity of factors that contributed to the failure to adequately protect witnesses in these sensitive cases. As shown in the figure below, this thesis argues that these problems resulted not only from issues within the respective protection systems, but also from sociopolitical and other external influences that complicated the protection of witnesses in KLA-related cases.
1. Internal factors
The following section will first address the internal issues that contributed to the difficulties in protecting witnesses in KLA-related cases. These include legal factors (i.e. fair trial rights and the lack of a comprehensive legal framework and application guidelines), as well as
organizational factors (i.e. insufficient confidentiality of the system, resource-related challenges, and the lack of enforcement powers of ICTs).
1.1 Legal factors
1.1.1 Rights of the accused
As touched upon in chapter I, one of the difficulties regarding witness protection is that such measures must always be balanced against the defendant’s right to a fair trial.105 Numerous
scholars have described the difficult dilemma that this poses: the fair course of justice requires that witnesses feel safe enough to testify, but also that the rights of the defendant be upheld.106 A monitoring report by the PACE observed that the balancing of protective measures with the rights of the accused was a significant problem at the hybrid courts under UNMIK and
EULEX.107While fair trial rights inherently impose limitations on procedural protection measures, this issue was particularly complex in the Kosovar situation. This is because most witnesses would immediately be recognized upon appearance in court, rendering any
protection measures useless (see also 2.2.1 below).108 However, since the defendant evidently had the right to be present at his or her trial and cross-examine witnesses, there was no viable alternative.
Numerous scholars have pointed out that the tension between the rights of witnesses and those of the accused was also “omnipresent” at the ICTY.109 Because of this, with one exception the
Tribunal has not allowed witnesses to remain fully anonymous.110 Even when the delayed disclosure of identity was granted, the relevant information had to be disclosed in due time to allow for the adequate preparation of the defense.111This means that ultimately, the identity of
105 Kramer (n12) 8; King et al. (n94) 100; Kravetz (n39); UNODC (n9) 40. 106 Haider & Welch (n26) 60.
107 PACE (n27) 8,12,25. 108 Ibid 25.
109 Kravetz (n39) 157; See also De Brouwer (n22) 731; King & Meernik (n22) ch4 16; Wald (n41) 220ff; Haider & Welch (n26); Ciorciari & Heindel (n45).
110 n84.
witnesses would always be disclosed to the defense, or in the words of the Organization for Security and Cooperation in Europe (OSCE), “to the very person that the protection measures were designed to protect the witness from.”112 In addition, due to the long pre-trial and trial periods at ICTs, the friction between witness protection and the right to liberty of the accused was particularly prevalent at the ICTY.113 For example, Del Ponte noted that Haradinaj’s provisional release and public appearances in Kosovo were detrimental to witnesses’ trust in the Tribunal’s protection mechanism.114
Finally, the right to a public trial further complicated the protection of witnesses in KLA-related cases, both at the local hybrid courts and at the ICTY. Even though public scrutiny is important to ensure the fair course of justice, local media from Kosovo frequently jeopardized the safety of witnesses by purposefully disclosing protected information in sensitive cases.115
1.1.2 Comprehensive legal provisions and application guidelines
Various experts emphasize that a comprehensive legal framework and clear application guidelines are crucial to ensure effective witness protection.116 As will be shown below, the
witness protection systems at all previous criminal justice mechanisms for Kosovo suffered from problems in that respect.
Monitoring reports repeatedly raised concerns as to the lack of a comprehensive legal
framework regulating witness protection under UNMIK and EULEX.117 Until 2011, there was no clear law on witness protection in Kosovo, and the establishment of the WPU was solely based on a short UNMIK Justice Circular.118 This meant that the Unit was operating without a solid legal base and guidelines as to its functioning.119 In addition, the application of
procedural protection measures by the judiciary was not at all consistent. Several monitoring reports note that especially local judges at the hybrid courts barely applied the available protective measures,120 and that there were almost no judicial or other responses to the
112 PACE (n27) 11. 113 See e.g. Kim (n35) 73.
114 Del Ponte (n10) ch11 paras 74-79.
115 In local cases see: Jean-Christian Cady and Nicholas Booth, 'Internationalized Courts in Kosovo: A UNMIK Perspective' in Cesare P R Romano, André Nollkaemper, and Jann F Kleffner (eds), Internationalized Criminal
Courts (Oxford University Press 2004) 68; OSCE CJS Review (n27) 12; PACE (n27) 26; Katie Zoglin,‘The
Future of War Crimes Prosecutions in the Former Yugoslavia: Accountability or Junk Justice?’ (2005) 27(1) Human Rights Quarterly 69-70; in ICTY cases see: De Brouwer (n22) 721-730; Harmon & Gaynor (n30) 19-24. 116 Kramer (n12) 12; UNODC (n9) 44-45; PACE (n27) 19.
117 OSCE CJS Review (n27) 10; PACE (n27) 8-9. 118 OSCE Witness Security Assessment (n61) 5. 119 Witness Security Assessment (n61) 5. 120 OSCE CJS Review (n27) 12.
intimidation or even killing of witnesses.121
It can be argued that a lack of clear legal provisions on witness protection caused problems at the ICTY as well. Firstly, the ICTY Statute and Rules are silent on how non-procedural protection should be implemented.122 Accordingly, the responsible VWS only developed its structure over time and created policies on an “if-need” basis.123 In addition, judges at the
ICTY had considerable discretion in the application of procedural protection measures.124 For example, Rule 69 on delayed disclosure provided no clear timeframe as to when the relevant information should be disclosed to the defense, causing inconsistencies in the Tribunal’s case law.125 Similarly, there were no clear provisions on anonymous witness testimony, which led to controversies as to whether witnesses should be able to remain fully anonymous.126
Evidently, a certain flexibility in the application of protective measures can be useful, particularly when it comes to procedural measures.127 Nevertheless, the fact that the ICTY
was repeatedly criticized for ordering too many or too few witness protection measures – including in Haradinaj et al.128 – indicates that clearer guidelines might have been
advantageous.129 Finally, it bears noting that judges at the ICTY also had wide discretionary powers in the classification and prosecution of offences against the administration of
justice.130 Scholars note that the sentences for contempt at the ICTY were generally low and therefore had insufficient deterrent effect.131 This became particularly evident in the trials of former KLA leaders, both of which were hampered by widespread witness tampering and the disclosure of confidential information.132
121 Ibid.
122 I.e. ICTY-RPE R34 merely established the VWS. 123 King et al. (n94) 1.
124 See Ciorciara & Heindel (n45) 303 and Haradinaj et al. (Appeals Judgement) paras 30-40.
125 ICTY-RPE R69 merely states that information shall be disclosed in due time to allow for the adequate preparation of the defense. While the ICTY has usually interpreted this to mean at least 30 days before the trial, this has not always been consistently applied (see e.g. Kim (n35)).
126 Kravetz (n39).
127 See e.g. Gideon Boas, ‘Creating Laws of Evidence for International Criminal Law: The ICTY and the Principle of Flexibility’ (2001) 12 Criminal Law Forum 41.
128 Haradinaj et al. (Appeals Judgement) para 40.
129 Kimi Lynn King and James Meernik, 'The Burden of Bearing Witness: The Impact of Testifying at War Crimes Tribunals' (2017) 63 Journal of Conflict Resolution 354.
130 Sluiter (n17).
131 De Brouwer (n22) 731; Kravetz (n39) 159. 132 n101.
1.2 Organizational factors
1.2.1 Lack of confidentiality and integrity of the system
The UNODC good practices manual notes that “regardless of the quality of the protection system put in place, the greatest risk of compromise comes from the human element (…).”133 Therefore, the confidentiality, impartiality, and integrity of the authorities involved is of crucial importance.134 As will be explained below, these values could not sufficiently be guaranteed at previous criminal justice mechanisms dealing with KLA-related cases.
Political interference in the Kosovar judiciary has been a continuous challenge under UNMIK and EULEX, particularly with regard to sensitive cases.135 Indeed, various reports note that local judges were often unwilling or too scared to take on cases against high-ranking suspects such as former members of the KLA.136 The insufficient independence of relevant authorities was exacerbated by the fact that corruption was, and still is, a widespread problem in
Kosovo.137 Against this background, it is hardly surprising that witnesses had no trust in the
local authorities to adequately protect them in such high-profile cases. As explained in chapter I, not only local but also international staff were involved in witness protection in Kosovo, particularly concerning non-procedural protection. In practice however, internationals were almost always dependent on locals to find, communicate with, and protect witnesses.138 According to the UNMIK staff member interviewed by the author (pseudonym D.F.), there was always at least one person involved who was influenced by the KLA and could
compromise the safety of witnesses.139
At first sight, concerns regarding the confidentiality and integrity of the system seem
133 UNODC (n9) 54.
134 UNODC (n9) 47-54; Kramer (n12) 14; OHCHR (n16) 7.
135 Rok Zupančič and Nina Pejič, Limits to The European Union’s Normative Power in a Post-Conflict Society
(SpringerBriefs in Population Studies 2018) 79; Amnesty international (n26) 51, 54-56; WOSCAP Report (n68)
24,35; Derek M Welski, 'Hybrid Court System in Kosovo: Has EULEX Proven to be the Device to Strengthen the Independence and Effectiveness of the Judiciary?' (Group for Legal and Political Studies (GLPS) 2014) <http://legalpoliticalstudies.org/wp-content/uploads/2014/11/Policy-Report-11-2014-eulex-Hybrid-Courts-ENG.pdf> accessed 20 January 2020 10; Witte & Duffy (n31) 562.
136 Organization for Security and Cooperation in Europe Mission in Kosovo: Department of Human Rights and Community, ‘Kosovo’s War Crimes Trials: An Assessment Ten Years On 1999-2009’ (OSCE 2010)
<https://www.osce.org/kosovo/68569> accessed 17 July 2020 (OSCE War Crimes Report) 25; PACE (n27) 26. 137 European Commission, 'Report Accompanying the Document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions 2019, Communication on EU Enlargement Policy' (European Union 2020)
<https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52019SC0216> accessed 18 June 2020 (European Commission Report 2019) 31; Arifi (n23) 251; Marty Report (n1) 8.
138 Personal Communication D.F. (n11). 139 Ibid.
irrelevant at the ICTY. After all, the Tribunal was established precisely because of the absence of effective and impartial justice mechanisms in the territories of the former Yugoslavia.140 All judges and higher-level VWS staff at the ICTY were recruited
internationally,141 and reportedly worked with the “highest levels of integrity, impartiality and confidentiality.”142 However, it should be remembered that the VWS mostly had to rely on local authorities, at the time UNMIK, to protect Kosovar witnesses before and after
proceedings.143 In that respect, Del Ponte noted that cooperation and witness protection by UNMIK was “less than optimal,” and that potential witnesses had no trust in UNMIK’s protection system.144 She further asserts that even on the international level, the leaking of confidential information was a recurring problem.145 While no concrete evidence exists in that regard, it certainly did not help that Haradinaj frequently met with high-ranking UNMIK and Kosovo Force (KFOR) officials who were in possession of sensitive witness information, or that amember of Haradinaj’s defense team was married to a UNMIK police officer involved in witness protection.146
1.2.2 Resources, funding, and training
Witness protection is complex and costly; therefore, it is crucial to ensure the adequate training of staff, sufficient resources, and consistent funding.147 However, both the witness protection systems under UNMIK and EULEX, as well as at the ICTY, seemed to have suffered from resource-related challenges.
Under UNMIK and EULEX, the international police units responsible for witness protection continuously struggled with a lack of financial resources and qualified staff.148 Besides the fact that this impeded the effective functioning of the protection units, this meant that
140 See e.g. Witte & Duffy (n31) 488; Zoglin (n115).
141 'Election Process' (ICTY, 2020)
<https://www.icty.org/en/about/chambers/election-process#:~:text=The%20Tribunal's%20judges%20are%20elected,the%20position%20of%20permanent%20judg e.> accessed 18 June 2020; King et al. (n94) 126.
142 King et al. (n94); Note that in 2003, the Protection Unit started to work even more independently from the other VWS units to ensure the absolute confidentiality of the system (ibid 14).
143 Ibid.
144 Del Ponte (n10) ch11 para 81. 145 Del Ponte (n32) 546.
146 Del Ponte (n10) ch11 paras 85-90. 147 Kramer (n12) 14,19; UNODC (n9) 50.
148 OSCE Witness Security Assessment (n61); PACE (n27) 24-26, OSCE CJS Review (n27) 11; OSCE War Crimes Report (n136) 31; Amnesty International (n26) 44; Zoglin (n115) 71; Arifi (n23) 252; these issues apply more generally to the entities relevant in the prosecution of war crimes in Kosovo, such as the IFM or the EULEX War Crimes Investigations Unit (Marty Report (n1) 8-9).
measures like relocation were often not even within the realm of possibilities.149 In addition, the lack of skills and training of judicial staff dealing with war crimes in Kosovo has been a major concern throughout the years.150 Both UNMIK and EULEX have been widely criticized for failing to provide sufficient training opportunities for local judicial personnel.151
Moreover, in many cases even the international staff was not considered to have the adequate skills and knowledge to deal with war crimes within the Kosovar context.152 Finally, problems arose from the fact that war crime cases were adjudicated in pre-existing court buildings without the necessary equipment to implement procedural protection measures.153 There were also no separate entrances or waiting rooms, which meant that witnesses were directly
confronted with defendants and their ‘supporters’.154
It would appear that the ICTY did not face any resource-related challenges, given its annual budget of around 63.5 million euro in early years.155 Nevertheless, an in-depth study found that the VWS did in fact suffer from problems related to funding and staff resources.156 This
may partially be attributed to the fact that the structure of the VWS only developed over time, which led to certain organizational ambiguities.157 For example, early operations were at times funded by external donors, and only in 2005 was witness protection fully included in the regular budget.158 Yet, even after 2005, issues related to a lack of funding and staff within the VWS persisted.159
1.2.3 Lack of enforcement powers of international tribunals
Another issue that significantly complicates the protection of witnesses at ICTs stems from the former’s lack of enforcement power. This is because in the absence of an international police force, the ICTY had to rely on local authorities to protect witnesses outside the courtroom.160 The dependence on local authorities is especially problematic because as
149 Zoglin (n115) 71.
150 See: OSCE War Crimes Report (n136) 6-7; European Commission Report 2019 (n137); Witte & Duffy (n31) 543; Zoglin (n115) 67; PACE (n27) 29; Dursun-Özkanca (n68) 84.
151 Welski (n135) 12-14; OSCE War Crimes Report (n136) 25. 152 Zupančič & Pejič (n135); WOSCAP Report (n68) 33. 153 PACE (n27) 26.
154 Witte & Duffy (n31) 549-550, 557.
155 Rupert Skillbeck, ‘Funding Justice: The Price of War Crimes Trials’ (2008) 15(3) Human Rights Brief 6-10. 156 King et al. (n94) 13-20.
157 Ibid 13-20.
158 King et al. (n94) 19; note that the study at times refers to the VWS as a whole and at times to witness support, which means it is unclear whether these issues also concerned the protection unit specifically.
159 See King et al. (n94) 20. 160 n37.
mentioned earlier, these authorities are often unable or unwilling to cooperate with the Tribunal.161 Indeed, witnesses at the ICTY frequently expressed their concern that they did not feel adequately protected by the authorities in their home country.162 This issue was also addressed by the Appeals Chamber in Haradinaj et al., when it quoted one witness stating: “I do not want protective measures, because (...) such measures do not exist in reality; they only exist within the boundaries of this courtroom, not outside it.”163
2. External factors
Besides the legal and organizational challenges described above, numerous external factors arguablycomplicated the protection of witnesses in high-profile cases against the KLA. As will be explained below, these issues resulted largely from Kosovo’s post-conflict
environment, the consequent fragile security situation, and the political and societal influence of alleged perpetrators. Furthermore, the specific sociocultural and international context of Kosovo — its close-knit society and small geographical size, as well as the lack of
international cooperation regarding witness protection — contributed to the major difficulties in keeping witnesses safe in such cases.
2.1 Post-conflict environment
2.1.1 Fragile security situation and rule of law
In many post-conflict environments, such as that of Kosovo, the security situation and rule of law remain fragile.164 As Cryer explains, this creates “situations [in which] there are
multifarious opportunities for tampering with witnesses, owing to the background situations (…) of absent, weak, or involved official entities.”165
In the aftermath of the war, the security situation and functioning of institutions in Kosovo remained frail.166 Especially in the early years after the conflict, most of Kosovo’s territory was de facto controlled by factions of the KLA.167 Del Ponte even argued that Kosovo was a “lawless region,” dominated by a clan culture that served as a justification for harming those
161 See De Brouwer (n22) 716 and Cryer (n34) 202. 162 King et al. (n94) 15.
163 Haradinaj et al. (Judgement, 3 April 2008) para 49.
164 Cryer (n34) 200 -202; De Brouwer (n22) 716-717; Sluiter (n17) 73. 165 Cryer (n34) 200.
166 See e.g. Del Ponte (n10) ch11; Naarden & Locke (n27); Marty Report (n1) 3. 167 Marty Report (n1) 3.
who were perceived as disloyal.168 Even though the security situation improved over time, high levels of organized crime, corruption, political interference in institutions, and poor cooperation between authorities persisted.169 In light of this, it is hardly surprising that witnesses could not be adequately protected, in particular not against influential figures associated with the KLA.
2.1.2 Political influence of the alleged perpetrators
Ordinarily, the adequate protection of witnesses is guaranteed by the cooperation and efforts of national authorities.170 When it comes to international crimes, those authorities were often themselves involved in the commission of crimes, and perpetrators may still hold influential positions in the locus delicti.171 This is certainly true for former leaders of the KLA, many of whom are still high-ranking politicians in Kosovo today.172
Since the beginning of UNMIK’s mandate, former KLA leaders enjoyed major political influence and had close ties with the international leadership.173 According to the Marty
Report, both UNMIK and EULEX “chose to turn a blind eye to the war crimes of the KLA” in order to achieve short-term stability.174 The lack of political will to prosecute these crimes
has severe consequences for the protection of witnesses, because authorities may simply have no incentive to ensure the safety of witnesses in cases they are not willing to prosecute.175 Moreover, the influence of the KLA extended into all Kosovar institutions, including the judiciary and other instances relevant for the protection of witnesses.176
The political influence of former KLA leaders was a significant problem at the ICTY as well.177 This is not only because they could rely on influential allies to tamper with witnesses
168 Del Ponte (n10) ch11 para 50.
169 See e.g. Teresa Cierco and Liliana Reis, 'EULEX's Impact on the Rule of Law in Kosovo' (2014) 34 Revista de Ciencia Política; Dursun-Özkanca (n68) 88; International Crisis Group, 'The Rule of Law in Independent Kosovo' (ICG 2010) <https://www.refworld.org/pdfid/4bf4e3b82.pdf> accessed 14 July 2020; WOSCAP Report (n68) 38; Marty Report (n1) 8ff.
170 Harmon & Gaynor (n30) 5-7. 171 Ibid; De Brouwer (n22) 717-720.
172 See Marty Report (n1) 26; Aidan Hehir, 'Lessons Learned? The Kosovo Specialist Chambers’ Lack of Local Legitimacy and Its Implications' (2019) 20 Human Rights Review 11.
173 Marty Report (n1) 3 +7; Holvoet (n32) argues that the lack of distance between EULEX and the domestic authorities contributed to its failure to protect witnesses (11).
174 Marty Report (n1) 7; D.F. argued that a peacebuilding mission is first and foremost political, and that unconditional application of the rule of law is not always in the interest of society (Personal Communication D.F (n11)).
175 Cryer (n34) 201-203; see also De Brouwer (n22) 717. 176 Personal Communication D.F (n11).
