On 29 November 2012, the International Criminal Tribunal for the former Yugoslavia (ICTY) acquitted Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj of all charges of war crimes. A few weeks later, in a separate courtroom on the other side of The Hague, Mathieu Ngudjolo Chui was acquitted of war crimes and crimes against humanity by the International Criminal Court (ICC).
From 2010-2011, I worked for Brahimaj’s defence, as the equivalent of an instructing solicitor. This trial was small but unique; it was the first retrial of an acquittal in international criminal law.
The case began in 2005, with indictments issued against then Kosovar Prime Minister Ramush Haradinaj and the other accused. In 2008, Haradinaj and Balaj were acquitted of all counts; Brahimaj was convicted of two counts.
In 2010, after a prosecution appeal, the case was ordered for partial retrial. The basis was that the “prosecutor’s right to a fair trial” had been breached, because they had not been allowed sufficient time to bring “two crucial witnesses”. Allegations of witness intimidation surrounded the first case, but there has never been a Trial Chamber finding of witness intimidation.
The retrial judgment was a strong rejection of the prosecution case. Of the six witnesses heard for the first time in the retrial, the evidence of two was rejected entirely. The evidence of another three was substantively rejected. How could such a weak case have been pursued for almost eight years?
Significant resources were spent in bringing this case to trial (twice), and the accused were detained for years — all for a case with little evidence. This suggests that there is a lack of understanding about the role of the international prosecutor.
In domestic jurisdictions, a prosecutor has an obligation only to pursue a case where there is a reasonable prospect of conviction. The Victorian Office of Public Prosecution, for example, has a director’s policy on prosecutorial discretion. Prosecutors must be able to bring admissible, substantial, and reliable evidence. Where there are significant concerns about the reliability of essential evidence, criminal proceedings should be discontinued.
One reason for this is to ensure the best allocation of limited resources — also important in international trials. The cost of any international criminal trial is enormous, and resources are tight.
The ICTY is winding down its operation and faces significant budget constraints. The ICC has been indirectly affected by the global financial crisis and some are advocating zero budget growth. Prosecutorial discretion on how best to allocate resources — which cases to pursue — is crucial.
There is also the human cost. Victims do not benefit from cases that are pursued without sufficient evidence: they may be dissatisfied with trials they see as “failed”. Relations between affected communities may suffer, with cases potentially reinforcing tensions. The accused in this case have spent years in detention — a huge cost to them, their families, and communities.
In the Haradinaj case, there have been questions over prosecutor Carla del Ponte’s involvement in pushing the case to trial in 2005-2008. Particularly concerning are comments from Sir Geoffrey Nice QC — a former prosecutor, with no partisan or political interest — who called for an inquiry into del Ponte’s handling of the case.
However, the questions should extend beyond del Ponte, who left the ICTY in 2008. The prosecution continued this case until 2012, but why did they rely so unquestioningly on witnesses who, through any investigation, must have been revealed to be unreliable? Why didn’t they discontinue the prosecution? What can be learned from the Haradinaj case about the responsibilities of the international prosecutor?
Soon after this acquittal, two things happened at the permanent ICC, which reinforced how little is known about prosecutorial discretion and strategies. First, on 18 December, Mathieu Ngudjolo Chui was acquitted of all charges.
The judges reiterated this did not mean atrocities did not happen, but that the prosecutors had not been able to establish their case.
The other event was the appointment of a special adviser to the prosecutor on International Criminal Law Prosecution Strategies. This appointment is welcome, but it again suggests that little is understood about this area. In light of the Haradinaj and Chui acquittals and the appointment of this adviser, it is time to properly analyse the role of the international prosecutor, and their policies, practices, strategies, and training.
Acquittals suggest that the international justice system is working: when the prosecutor has not established their case beyond a reasonable doubt, the accused are presumed innocent. These are not show trials, where a guilty verdict is inevitable.
Acquittals do not mean that atrocities were not committed, but there is a standard that must be met to assign guilt. Prosecutorial discretion should ensure limited resources are not spent on cases that cannot be established, and avoid people being detained for years. Recent events suggest that there is much to learn about the prosecutor in international criminal law.
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