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

Court	International Criminal Tribunal for the former Yugoslavia (ICTY) Trial Chamber I, The Netherlands
Case number	IT-04-84-T
Decision title	Judgment (Public)
Decision date	3 April 2008
Parties	The Prosecutor Ramush Haradinaj Idriz Balaj Lahi Brahimaj
Categories	Crimes against humanity, War crimes
Keywords	crimes against humanity, cruel treatment, joint criminal enterprise, Kosovo, Murder, rape, torture, war crimes
Links	Judgment (Public)
Other countries involved	Kosovo

Summary

Between March and September 1998, the Kosovo Liberation Army (KLA) was attacking the Dukagjin area in order to assert its control over that territory. All three accused held positions within the KLA.

The charges comprised of crimes against humanity and war crimes, but Trial Chamber I held that the necessary contextual elements of the former had not been satisfied. Therefore, it dismissed all counts of crimes against humanity. It did further determine that war crimes had been committed by the KLA forces, but only found sufficient evidence for some of the allegations. Accordingly, it limited the counts for which responsibility could be attributed.

There was lack of evidence to prove the existence of a common purpose to remove the Serbian, Kosovar Roma/Egyptian and Kosovar Albanian civilians from the Dukagjin area, and, therefore, the three accused could not be held guilty for participating in a joint criminal enterprise.

The Chamber found only Brahimaj guilty of torture and cruel treatment and sentenced him to 6 years of imprisonment.

Procedural history

The third amended indictment was filed on 7 September 2007. The trial commenced on 5 March 2007 and closing arguments were heard between 21 and 23 January 2008.

Related developments

The Prosecution and Brahimaj appealed the trial decision, filing the following appeal briefs:

For the Prosecution: ICTY, Appeals Chamber, The Prosecutor v. Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj, ‘Notice of Filing of Public Redacted Version of Prosecution Appeal Brief (Public Redacted)’, Case No. IT-04-84-A, 17 July 2008;
For Brahimaj: ICTY, Appeals Chamber, The Prosecutor v. Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj, ‘Appeal Brief on Behalf of Lahi Brahimaj (Public)’, Case No. IT-04-84-A, 19 July 2008.

The Appeals Chamber rendered its decision on 19 July 2010, ordering the retrial of the three accused on certain counts. 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

The events giving rise to the case occurred between 1 March and 30 September 1998 in the Dukagjin area of Western Kosovo. During this time, the Kosovo Liberation Army (KLA) engaged in an attack against the Serbian, Kosovar Roma/Egyptian and Kosovar Albanian civilians (para. 1).

At the time relevant for the indictment, Ramush Haradinaj was the commander of the KLA forces in the Dukagjin area. Idriz Balaj was subordinated to Haradinaj, having the position of commander of a unit within the KLA. Lahi Brahimaj was a member of the KLA General Staff and the Deputy Commander in the Dukagjin area (paras. 2-4).

The Prosecution brought charges against the accused as participants to a joint criminal enterprise which had the common aim of asserting complete KLA control over Dukagjin. This allegedly involved the commission of crimes against humanity and war crimes, including murder, torture and cruel treatment. In the alternative, the Prosecution charged the accused with individual criminal responsibility for committing, planning, instigating, ordering, aiding and abetting several of these crimes (para. 5).

Core legal questions

Have the contextual elements of war crimes and crimes against humanity been fulfilled under the provisions of Article 3 and 5 of the ICTY Statute?
Have the charged crimes been committed by the KLA forces?
Can the accused be held liable as participants in a joint criminal enterprise?
In the alternative, can the accused be held individually responsible under other modes of liability?

Specific legal rules and provisions

Articles 3, 5 and 7(1)of the ICTY Statute.

Court's holding and analysis

Trial Chamber I found that the elements of war crimes had been fulfilled (paras. 32-100). With regard to crimes against humanity, the evidence did not show that the scale and frequency of the acts of the KLA amounted to an attack against the civilian population (paras. 101-122). Accordingly, the Chamber acquitted all three accused of the counts of crimes against humanity (para. 122).

Trial Chamber I determined that the KLA was responsible for the war crimes of murder, cruel treatment, torture and rape but only with respect to a reduced number of incidents (para. 146 et seq.). There was insufficient evidence to support that the three accused were participants in a joint criminal enterprise (para. 470 et seq.).

With respect to the individual criminal responsibility argued by the Prosecution in the alternative, Trial Chamber I found that only Lahi Brahimaj could be held liable for two counts of torture and cruel treatment (paras. 395; 451). It found that the other accused were not responsible for any of the charged crimes (paras. 502-503).

Lahi Brahimaj was sentenced to 6 years of imprisonment (para. 505).